EPA
DECM
OWEP
 CLEAN WATER ACT
Compliance/Enforcement
    Compendium
    Volume III

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VI. SPECIALIZED ENFORCEMENT TOPICS
    B.  PRETREATMENT

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

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       !   UNITED STATES ENVIRONMENTAL PROTECTION.AGENCY

*f*i imtsflf                      WASHINGTON. D.C.; 20460

                                 NDV 2 9 1978


 MEMORANDUM
-TO:        Regional  Administrators w/o  attachments
           Regional  Water Division Directors
           Regional  Enforcement Division Directors  .

 FROM:      Deputy Assistant Administrator for Water Programs  Operations .
           (WH-546)                                              -

           Deputy Assistant Administrator for Water Enforcement (EN-335)

 SUBJECT:   Coordination Between Regional Enforcement and W?ter Programs
          •Personnel in Implementing the National  Pretreatment Program


      The  general pretreatment regulation ( 40 CF..RPart.403)  promulgated
 en. June 26,  1978, requires that certain publicly  owned treatment works
 (POTWs) develop pretreatment programs  to control  the introduction of
 industrial  wastes into POTh's.  The-successful implementation of these
 pretreatment programs requires a careful integration of Regional
 Enforcement Division efforts-in overviewing the creation of such
 programs  and Construction.-Grants efforts in .providing funding., for the,
 development of these programs.  The purpose of this memorandum is to
 outline the respective roles of these  two groups  with regard to the
 initial stages of POTW p-etreatnent program development.  The recom-
 mendations in this memorandum reflect the proposals for coordinating
 Enforcement and Construction Grants-activities found.in the Interim
 National  Municipal  Policy and Strategy, October,  1978, and the latter
 document should be read in concert with this memorandum.

 Identification of POTWs Recuired to Develop a Program

      The pretreatment regulation specifies that two groups of .POTWs
••shou.l d 'be -requi red -.to, .deye..l,op,..a..pre-tr.ea.tmer»t. program.,(..se.e.. .se.ction...	,
 403.8).  First, all POTWs with an average design flow greater, than''  "' '
 5 million gallons per day (mgd) and receiving industrial wastes which
 1) pass through the POTW untreated, 2) interfere with the operation of
 the POTW or, 3) are otherwise subject  to pretreatment standards
 developed under section 307 of the Clean Water Act are required to
 develop a program.  In addition, the Regional Administrator or Director
 of the State NPDES program may require that POTWs with an average
 design flow of  5 mgd or less develop a pretreatment program if their
 industrial influent meets any of the three criteria listed above.

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     A computer print-out  of "fill  POTWs  in  each Region broken down by
majors and minors is attached  to  this memorandum.   The Regional
Enforcement .Division shoul'd take  the lead  in  developing from the
attached computer print-out: V) a list  of  those  POTWs (both above and
below 5 mgd)  in non-NPDES  States  which  should develop a pretreatment
program and,  2) a list of  those POTWs above 5 mgd  in NPDES States which
must be required to develop a  program.   The Regional  Water Division
must assist in this effort and provide  such necessary information as
is available  in the water  Division files.  Attachment A suggests means
by which the  Regional  office can  identify  these  POTWs.             •  •  •
                         .-VX '.   ,,j
     In "compiling the  non-KPDES-'State list, the  Regional office should
check the appropriate  boxes^next  to the POTW  name  on the computer
printout. .Copies of this-print-out should then be forwarded to the
Permits' and,,Municipal  Construction Divisions  at  Headquarters.'  A copy
of thiSypr^iht-out; should al-so'be  maintained by both the Enforcement and
Water bWi^5'6ris/t^;^he'''fte^fdfttil office  and both  Divisions should be
consulted on  any changes"'to the list.

    . The NODE'S State list^should  be sent to NPDES  States to assist them
in identifying :appVoprira:te 'POTWs.  NPDES States  will be responsible for
adding to;;"ihe^Region^V:-Vi^t"- those POTWs with  flows of 5 mgd and less
which will .be subject-"to the program development requirement.  Once the
NPDES State ,has,.developed  a list  of all PQTVJs within its jurisdiction
which will be required'to  implement pretreatment programs, it should
..forward..this  list to the Grants and Enforcement personnel in the Regional
office who will, in turn,  send this information  on to Headquarters,.

     Lists of those POTrfs  in both NPDES and  non-NPDES States which will
be required to develop a program  should be sent to the Headquarters
Permits and .Municipal  Construction Divisions  no later than January 15,
1979.  The cover memorandum transmitting the:completed lists .should be.
signed jointly by the  Directors  of the  Regional  Water and Enforcement
Divisions.  These lists will eventually be incorporated  into the Permit
Compliance System (PCS) which will provide a  convenient mechanism for
tracking and  updating  progress in developing  POTv,' pretreatment  programs.

Application, for Construction Grants Amendment      '       ,
        ' • "• ••-•-'••' ••;.	• .•• -•:•.:• • ^v.---':-:-:^/..-;^-;---.--'1-/.!.^-. ^'.v,-..- -: ,.,J.-;' -.•,.-;...;,. ,..,,.-...
     Once the lists of POTWs required to develop a pretreatment program  '
have been compiled, the Construction Grants staff should  notify the
appropriate POTds  in  NPDES and non-NPDES States of the  need  to  apply for
an amendment  to their  existing Step 1,  2 or 3 grant  in  order to acquire
funding for the development of a  pretreatraent program (see Construction
Grants  regulation  40  CFR 35.907).  Concurrent notice  of  POTvIs which
should  apply  for  grant amendments should be sent to  Grant personnel  in
NPDES and non-NPDES  States so that the States may plan  future funding
requirements.  Existing construction grants should be  amended no later
than June 30, 1979,  to provide pretreatment program  funding.

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     As individual  POTWs apply  for and are awarded an amendment to
 their construction, grant for  pretreatment program implementation,
 this information should be  conveyed  to Regional Enforcement personnel.
 As will be seen in  the subsequent discussion, timing of the construc-
 tion grants award can have  an impact on  the development of the
 pretreatment compliance schedule incorporated into the POTW's NPDES
 permit.
                                            • t",
 Reissuance of Permits to Include Pretreatment Requirements          .   .

     The pretreatment regulation requires that NPDES permits for POTWs
 which are required  to develop a POTW pretreatjjSertt-'program incorporate  a
 compliance schedule for the development  of suc>-a program [see 40~CFR'
 403.8(d)].  This compliance schedule should be.incorporated into the •];
 POTW's permit upon-reissuance at the end of the. existing permit term-'oY
 at the time the permit is modified or reissued to grant .a section-
 301(i)(l) time extension or a section 301(h) modifi.catioh\6f secondary
 treatment requirements.  In addition, a  POTW' s'-NPp'ES permit .may be
 modified in mid-term to incorporate  a schedule for the development of  a
 POTW pretreatment  program where the  operation.;.pf^a^POTW.without .a.
 pretreatment program poses  significant publlr'jieaj^^^jjr^nnienltol.^,
 related concerns,  or where  a  pretreatEient progra^-compjpi.ahce-sc|iedu1e^'
 must be developed  to coordinate with construction' grant"awsr^sV^ A";f
 detailed explanation "of the development  and appl ication 'of"£retreatment
 compliance schedules will be  found in Attachment Safqng.&ith'.a model
 compliance schedule.            .                 ".,»"  :;"v    *:
      The  pretreatment strategy envisions the  type  of close coordination
 between Enforcement and Construction Grants  staffs outlined in the
 Interim National  Municipal  Policy and Strategy for developing these
 compliance  schedules.  .Both.the Construction  Grants regulation (40 CFR
 35.907, 35.920-3) and the pretreatment regulation  (40 CFR 403.8) impose
 time  limitations  on the various activities to be undertaken in the
 pretreatment compliance schedule.  The pretreatment compliance schedule
 incorporated into a POTW's NPDES permit should contain milestones
 derived from the  grants process.  As the discussion in Attachment B
 indicates,  in order to develop a compliance  schedule which meets both
 the  pretreatment  and Construction Grants regulatory requirements, the
 Enforcef?.eTit "staff-'must' •coora'inate'Atfth-''Construction 'Grants-staff: in .-'•-,• '••
 determining the current grant status of the  permittee and the schedule
•for  receipt of future grant funding.

 Enforcement of POTW Pretreatment Programs

     Tne preceding discussion of coordination between Construction
 Grants and  Enforcement in developing POTW pretreatment programs should
 not be understood to imply that availablity of funding is a prerequisite
 to the development of a pretreatment program. 'The requirement to
 develop  a pretreatment program should be enforced and not dependent on

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Federal funds.  The development of pretreatrcent programs is  critical;
it.is the main tool to address toxic discharges from POTW's.  The costs
of enveloping such programs are not capital costs and they, can be
recovered from users of the municipal system in most cases.   In
balancing these considerations, the Agency's policy is to enforce
requirements for municipalities to develop pretreatr.ent programs
without dependence on Federal funding.

     This policy applies equally to funding the operation of municipal
pretreatnent programs once they are developed and running.  They are
expected to be self-supporting.  A user charge system may be used for
this purpose.

     If you have any questions on the implementation of this coordination
effort or its relation to the Interim National Municipal Policy and
Strategy, please feel free to contact Nancy Hutzel or Shanna Halpern
(8-755-0730) in the Permits Division or Ron DeCesare (8^426-8945)
in the Municipal Construction Division.
     T. fthett                    -       //Je/tfrey fe. Miller

Attachments.. .         ....

cc:  Recional S&A Division Directors
     NEIC

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                             ATTACHMENT  A
      Procedures  to  Identify  POTWs  Which  Will be Required to Develop
                      POTW Pretreattnent Programs
 The  permit-issuance  authority  (Regional  office or  NPDES  State) must
 have the  aoility  to  determine  which  of  its municipal permittees will
 be  required to develop a POTW  pretreatment program.  As  section 403.8(a)
 of. the pretreatment  regulation explains,  POTWs required  to  develop a
 program will  include those POTWs  with a design flow over 5  mgd receiving
 from industrial users wastes which:

 o  pass through the  POTW untreated

 o  interfere with the operation of the  treatment works

 o  are subject to pretreatment standards developed under the  authority
    of section 307(b) or (c) of the CWA.

 In  determining which POTWs are above 5  mgd,  the permit-issuance authority
 should look at average design  flow.   In addition,  if one permittee
 controls  several  treatment works, the cumulative flow of the  treatment
 works should be considered in  calculating average  design flow.  For
 example,  one Regional Authority controlling  3 treatment  works with
 average design flows of 3, 2 and"1.5 mgd respectively would be viewed,
 for the purposes  of  the pretreatment regulation, as  a  single  operation
.with an average design flow greater than 5 mga.

 A recommended first step in determining which POTWs  over 5  mgd fall
 within the 3 categories listed above would be to  determine  which  POTWs
 receive wastes from one or more industries within  tne  21 industrial
 categories, listed in.the NRDC  Consent Decree (for  reprinting  of Consent
 Decree see The Environmental Reporter-Cases,' 8: ERC"212U):.  EPA antici-  '
 pates that categorical pretreatment  standards under section  307(b)
 and (c) will be developed for almost all industrial  subcategories
 within the 21 industrial categories listed  in the  NRDC  Consent Decree.
 A possible approach to detecting these  sources would be  to  examine
 industrial inventories such as the Dun  and  Bradstreet Market Identifiers.
 the Directory of  Chemical Producers,. puDllsheo oy  tne Stanford Research-
 Institute, and the State industrial 'directories':'to de'termine- which :of" •
 the listed sources are within the State or  Region  and discharging into
 POTWs.'            .    '

 A second  step in  identifying POTWs required  to develop a POTW pretreat-
 ment program might be to look at those POT^s which are not meeting their
 NPDES permit conditions.  Such permittees would be likely candidates
 for a pretreatment program  aimed at controlling pollutants which
 interfere with the operation of  or pass-through the POTW.

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                                                             IDENTIFYING
                                                             POTWs
Section 403.8(a) of the pretreatroent regulation also gives the permit-
issuance authority the ability to require the development of a pre-
treatment program by POTWs with average design flows of 5 mgd or less.
It is recommended that the permit-issuance authority require the
development of a program wherever the POTV meets one of the 3 criteria
outlined earlier.  The permit-issuance authority is strongly urged to
exercise its option to extend the requirement to develop a pretreatment
program .as broadly as possible.

::' '•''•" The burden of proof for -demonstrating that a program~is not needed. ;'.
should rest on the POTW.  Where there is some doubt that a certain POTW
has industrial influent subject to pretreatment requirements,-the POTW
can be allowed to show that it need not develop a program.  In such
cases, a clause should be inserted in the municipal permit along with
the compliance schedule for the development of a pretreatment program.
This clause would state that if the industrial waste inventory required
by the compliance schedule demonstrates that the. POTW has no contribution
of industrial wastes which would be subject to pretreatment requirements,
the POTW would not be required to continue development of the program.

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                              ATTACHMENT B


               GUIDANCE  ON  PREPARING COMPLIANCE SCHEDULES FOR
                                                         *

                    DEVELOPING POTW PRETREATMEMT PROGRAMS-
 GENERAL COMMENTS;

      Section  403.8(d)  of  the  general pretreatment regulation (40 CFR
 part  403)  requires  that NPDES permits for'POTWs which are required to
 develop a  POTW  pretreatoent program incorporate a compliance schedule
 for the development of such a program.  In some cases, this compliance
 schedule will  be  incorporated into affected  POTW permit upon Teissuance '
 at the end of its existing term.

      In many  cases, however,  the compliance  schedule will be .incorporated.
 into  the POTW permit in mid-tera through a permit modification.  It is
 anticipated that  in many  instances this pretreatment compliance schedule
 will  be inserted  into  the NPDES permit for applicable POTWs when the
 permit is  modified  or  reissued in mid-term in  connection with a 301 (i Ml)
 determination (i.e., the  determination as to whether or not the schedule
 for development,.of  secondary  treatment should  be extended under the
 provisions of section  301 (i Ml) of the Act,  see 40 CFR 124.1-04).
 Similarly, a  POTW which is required to develop a pretreatment program
 will  have  a pretreatment  compliance schedule inserted in its NPDES
 permit if  that permit is  modified or reissued  in order to grant
 a  waiver of secondary  treatment requirements under the provisions of
 section .301 (h)  of the  Act. ..(See proposed 40 CFR Part 233.)  .In addition,
 a  POTW permit will  be  modified in mid-term 'to  incorporate 'a schedule
 for the development of a  POTW pretreatment program, where the operation
 of a  POTW  without a pretreatment program poses significant public
 health, environmental  or  related concerns, or  where a pre treatment
 program .compl iance  schedule must' be developed  to coordinate -with • . .    ,
 construction  grant  awards.  "      "'••.•'' :       .'     :  •

      The compliance schedule  will  require that the permittee develop
 the authorities,  procedures  and  resources, as  defined by 40 CFR 403.8
 and 403.12, which comprise an approvable  POTW  pretreatment program.
 The activities listed in  the  attached model  compliance  schedule .summarize
..th,e,.mpr.e,..det|i.led ..requi.renents. found  in. sections 403.8  and 403.12  of
''tfte'pfetreal&eh^^
 authority  review  the more detailed  requirements  set'forth -in the
 regulation before developing  the  pretreatment  compliance schedule, and
 insert  additional  schedule activities where  appropriate.

      There are several time  limitations'imposed  by  the  pretreatment
 regulation and the construction  grant regulation (40  CFR part  35)
 which should  be considered in establishing  compliance  schedule  dates.
 The  pretreatoent regulation provides  that the compliance schedule  will
 require  the development  and approval  of a POTW pretreatment  program  as
 soon  as  reasonable and within 3  years after the  schedule is  incorporated

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                                                    COMPLIANCE SCHEDULE
                                                    GUIDANCE
                                                         *
 into  a POTW's  permit but in  no  case later than July 1, 1983  (see §403.8).
 Since up  to  6  months must be allowed for the program approval process
 according to section 403.11  of  the pretreatment  regulation,  the compli-
 ance  schedule  date  for submission of a  pretreatment program  for approval
 (activity 8  of the  compliance schedule) should be  2-1/2  years from the
 incorporation  of a  compliance schedule  or January  1» 1983. whichever is
 sooner.
      Provisions  of the construction  grants  regulations  impose what may
 be  in some  cases stricter time constraints  on  the  development of  an    •,
 approvable  program.   For example,  section 35.920-3 of the  construc-
 tion  grants regulation provides that no grantee  may receive  a Step 3
 grant after December 31, 1980, until  it has developed an approvable
 pretreatment program.   Thus,.a permittee which is  scheduled  to  receive
 a Step 3  construction grant in January  1981  will be required to develop
 an  approvable program at the outside by January  1981.   However, if that
 same  permittee received a compliance schedule  for  the development of  a
 pretreatment program in December 1978 it would be  allowed, by the
 pretreatment regulation, an outside  date of June 1981  (i.e., 2-1/2
 years from  the incorporation of the  compliance schedule) to  develop an
 approvable  program.   In this case, the  more stringent time limitation,
 i.e., that  posed by the construction grant  regulation,  would apply.

      As the example above indicates,  in developing the  schedule date
 for the submission of an approvable  pretreatment .program,  the permit-
 issuance  authority must use that date prescribed by either the  pretreat-
 ment  regulation or the construction  grants  regulation which  provides  the
 shortest  time for the development of the program.   In  addition, the
 permit-issuance authority may impose reasonable  time limitations  which
 ar3 more  restrictive.        •       .-.....-., ..   ...

 DEVELOPMENT OF THE PRETREAT1OT COMPLIANCE  SCHEDULE "

      It is  apparent from the general discussion  above  that several
 different regulatory provisions influence  the  development  of the
•schedule  date for submitting a POTW  pretreatment program for approval
 Jcompliance schedule activity 8). Regulatory  limitations  on the  time
^fr'ame'"?^''''^^^

          o  'approval within 3 years  from the incorporation of  a
             pretreatment compliance  schedule in  the municipal  permit
             (application for approval within 2-1/2 years).  See 40  CFR
             403.8.

          o   approval by July 1, 1983 (application for approval  by
             January 1, 1983).  See 40 CFR  403.8.

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                                                            COMPLIANCE SCHEDULE
                                                            GUIDANCE
w.'~! ."'*..
          o   approval  prior  to  payment  of  grants  beyond 90% of the Step 3
             funding  (application  for approval  6  months before'this date).
             See 40 CFR 35.935-19.
                                                         *
         .0   development of  an  approvable  pretreatment program by the
             end of the Step 2  grant for certain  permittees.  See 40
             CFR 35.920-3.

          o-  approval  by whatever  more  stringent  time limit is imposed
             by the permit-issuance authority.

      In  addition,  the construction grant regulation imposes  an  interim
 time limitation on the development of  compliance schedule activities
 1-3.  According to this regulation, grantees  with amended Step  1 grants
 must have completed  activities 1-3 by  the time of application for the
 Step 2 grant if the  Step 2  is  to  be awarded after June  30, 1980.

      Facilities reauired to develop a  POTW pretreatment program can
 generally be divided into 4 groups depending  upon the  applicablity of
 the time limitations discussed above.   See attached Chart A.

 GROUP 1   Facilities  which will have received Step 1 and 2 construction
          grants or amendments  before June 30,  1980, and a Step  3
          construction grant before December 31,  1980..

      If a grantee is scheduled to receive its Step 2  and 3 construction
 grants before June 30, 1980 and December 31,  1980, respectively, the
 construction grant regulation  (40 CFR  35.935-19) requires that, in most
 cases, the grantee have an  approved POTVJ pretreatment program before  it
 receives the last 10% of its Step 3 grant funding. This means  that  the
 grantee would be required to apply for POTW. pretreatment program
 approval at least 6  months  before it is scheduled to  receive-payment
 beyond 90% of its Step 3 funding.*

      The pretreatment regulation  (40 CFR 403.8(d)) provides  that such a
 grantee should request approval of the POTW pretreatment program within
 2-1/2 years from the incorporation of a pretreatment. compliance schedule
.•in.tQ^.vt.s.^NPD.ES-.pe.rmi.t^qr by January 1, .1983, whichever is sooner.

      In developing the compliance schedule-for permittees'in this
 group, the perait-issuance authority should determine which of the
 above dates provides for the earliest development  of a POTW pretreatment
 program.  This date should then be used as.the pretreatment compliance
 schedule deadline for activity 8.
         *As a 6 months period is needed to approve a POTW pretreatment program,
          in order to receive approval of a.program by the date upon which the
          grantee is scheduled to receive payment beyond 90% of its Step 3
          funding, the application for approval must be submitted 6 months
          earlier.

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                                                    COMPLIANCE SCHEDULE
                                                    GUIDANCE
      Dates for the  remaining compliance  schedule  activities  are
 negotiable with the permittee.   Generally,  however, the  deadlines
 for completing activities  1-3 should  not exceed 15 months  from the
 initiation of the compliance schedule.

      Facilities receiving  their Step  3  grant before June"'30, 1980,
 shall be subject to the same time  limitations described  above.

 GROUP 2  Facilities which  will  have received Step 1 and  2  construction
          grants before June 30, I960, and a Step  3 construction  grant
          after December 31, 1980.                                   '

      The construction grant regulation  provides that  a grantee which is
 scheduled to receive a Step 3 grant after December 31, 1980, must  have
 completed compliance schedule activities 1-7 before it can receive its
 Step 3 funding.  Therefore, in developing the compliance schedule,  the
 permit-issuance authority  should use  as  an outside compliance  date for
 activities 1-7 the date for completion  of the Step 2  grant as  determined
 by the construction grants compliance schedule as long as  this  dats would.
 not be later than 2-1/2 years from the  initiation of  the pretreatment
 compliance schedule or Janurary 1, 1983, whichever is sooner.

      The compliance date for pretreatment compliance  schedule  activity
 S (request for program approval) should not exceed  2-1/2 years  from the
 initiation of the compliance schedule,  January 1, 1983,  or 6 months
 before the permittee is scheduled to  receive payment  beyond 90% of its
 Step 3 funding, whichever is sooner.

      Again, the interim pretreatment  compliance schedule dates are
 negotiable.   It is recommended that the completion date  for activiti.es
 1-3 not exceed 15 months from the initiation of the  compliance schedule.

 GROLP 3  Facilities which will receive a .Step 2 construction grant after
          June 30, 1980, and a Step 3 construction grant before December  31,
          1980.

      Under to the construction grant regulation,  in order to receive  a
 Step 2 grant  after June 30, 1980, a grantee must first  have completed
 actiyiti-e.s..1-3.of the, pretreatment,icompl.larice .s.c.hedul e>_ The :permit-   •
v issuance au'thlDri%:':;shbuVd:-theY^
 dates for the completion of activities 1-3 do not exceed the scheduled  •.   .
 date for the  completion of  the Step 1 grant  activities.  The permit-
 issuance authority may at  its  discretion impose  a more  stringent time
 limitation for the completion  of these activities.  It  is recommended
 that the completion date for activities 1-3  not  exceed  15 months from
 the  initiation of the compliance schedule.

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                                                     COMPLIANCE SCHEDULE
                                                     GUIDANCE
      The construction grant regulation provides that grantees which
 will  receive a Step 3 grant before December 31, 1980,'must have an
 approved pretreatment program in order to receive the final 10% of the
 Step  3 grant funds.  The final compliance date for activity 8 of the
 pretreatment compliance schedule therefore should be no -later than
 6 months* before the date upon which the grantee is scheduled to
 receive payment beyond 90% of the Step 3 grant funding unless this date
 exceeds 2-1/2 years from the initiation of the compliance schedule, or
 January 1, 1983, in which case the final date for activity 8 should be
 no later than January 1, 1983, or 2-1/2 years from the initiation of
 the compliance schedule, whichever is sooner.

      The interim dates for activities 4-7 are negotiable with the
 permittee.

 GROUP 4  Facilities which will receive a Step 2 construction'grant
          after June 30, 1980, and a Step 3 construction  grant after
          December  31, 1980.

      The construction grant regulation provides that  in  order to
 receive a Step 2 grant after June 30, 1980, a grantee must  first  have
 completed -activities 1-3 of the pretreatment compliance  schedule.   The
 permit issuance authority should therefore ensure  that  the  compliance
 schedule dates for the completion of activities 1-3  do  not'exceed the
 schedule date for  the Step 2 grant application.  The  permit-issuance
 authority may impose a more stringent time limitation  for  the completion
 of these activities.  It is recommended  that the  completion date  for
 activities 1-3 not exceed 15 months from the initiation of  the  compliance
 .schedule.                       • '"•"' "'"-'  •  """•  ; •• •	•  • -      •.

      In order to receive a Step 3 grant  after  December  31,  1980,  a
 facility in this category must also have  completed compliance  schedule
 activities 4-7.  The final compliance, datss  for activities 4-7  should
 •therefore be no later than the completion  date'for the  facilities
 Step 2 grant as determined by the construction  grants schedule.  If the
 scheduled completion date for the Step  2 construction grant activities
 is later than 2-1/2 years from the  initation  of the  compliance  schedule
 or January 1, 1983, then the  final  compliance  date for activities 4-7
 should not exceed  January 1,  1983,  or  2-1/2 years from the initiation
. of.the compliance  schedule, whichever  is sooner.   .            .         .  .
'••':'  •"''• '••.'• '•''""'•. .''-'r;'f-l'---K:y^'- •'•••'•';"'•'?•"'•"•!':•"-'>-.• •.-.•y'-l'4%'-''i''.' "'••'•''X'.'-. ';'':'^>';iVw-'-;-'^i-'vVv;V,Vr..^••^Vcv-••'v-vKiV.1-'1-••'' •"•*•'•'-:''. ~ •'"•:
      In establishing the pretreatment  compliance schedule dates for .
 activities 4-7, sufficient time must  be  allowed for the grantee to
 accomplish activity  8  (application  for  program approval) by January 1,
 1983,  2-1/2 years  from  the initiation  of the  pretreatment compliance
 schedule, or 6  months  before  the  permittee is  scheduled to receive
 payment beyond  90% of  its Step  3  funding*, whichever is sooner.
 * See  footnote,  page 3

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            MODEL PRETREATMENT COMPLIANCE SCHEDULE LANGUAGE
     Under the authority of section 307(b) and 402(b)(8) of'-the Clean
Water Act, and implementing regulations (40 CFR 403), the permittee is
required to develop a pretreatraent program.  This program shall enable
the permittee to detect and enforce against violations of categorical
pretreatment standards promulgated under section 307(b) and (c) of the
Clean Water Act and prohibitive discharge standards as set forth in
40 CFR 403.5.

     The schedule of compliance for the development of this pretreatment
program is as follows.  The permittee shall:
ACTIVITY                                             •'"         •     •  •
   NO.                           ACTIVITY                  .        DATE
              Submit  the results of an industrial user sur-
              vey as  required by 40 CFR 403.8(f)(2)(i-iii),
              including identification of industrial users
              and the character and volume of pollutants
              contributed to the POTW by the industrial
              users.                   .           .
              Suotrit  an evaluation of the legal authorities
              to  be used  by the'permittee to apply and
              enforce the requirements of sections 307(b)
              and (c) and 402(b)(8) of the Clean Water Act,
              including those requirements-out!i ned -in
              40  CFR  403.8(f)(l).

              Submit  a determination of technical informa-
              tion  (including specific requirements to
              specify violations of the discharge prohi-
              bitions in  403.5) necessary to develop  an
              industrial  waste  ordinance or other means of
              enforcing pretreatment standards.

              Submit  an evaluation of the financial
              proarcms and revenue sources, as  required by
              40 'CFR- 403v8(f )aiV-wh:5;ch^1^;be
              to  implement the  pretreatment program.

              Submit  design of  a monitoring program which
              will  implement the requirements  of 40 CFR
              403.8 and 4U3.12, and in particular those
              requirements referenced in 40 CFR
              403.8(f)(l)(iv-v), 403.8(f)(2)(iv-vi) and

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   6          Submit list of monitoring equipment required     	
              by the POTW to implement the pretreatment
              program and a description of municipal
              facilities to be constructed for monitoring
              or analysis of industrial wastes.

   7          Submit specific POTW effluent limitations        	
              for prohibited pollutants (as defined by 40
              CFR 403.5) contributed to the POTW by
              industrial users.

   6          Submit a request for pretreatment program        	
              approval (and removal credit approval,  if
              desired) as required by 40 CFR 403.9.

     The terms and conditions of the POTW pretreatment program, when
approved, shall be enforceable automatically through the permittee's
NPDES permit.

Quarterly Reporting

     The permittee shall report to the permit-issuance authority on a
quarterly basis the status of work completed on the POTW pretreatment
program.  Reporting periods shall end  on the last day of the months of
March, June, September and December.   The report shall be submitted to
the permit-issuance authority no later than tne 28th day of the month
following each reporting period.-  .- "  -'    .    .  \ • .-. ;.

Removal Allowances

     Any application for authority .to  revise categorical pretreatment
standards to -reflect POTW removal of pollutants  in.accordance with, the.
requirements of 40 CFR 403.7 must be submitted to  the permit-issuance'
authority at the time of application for  POTW  pretreatment program
approval or at the time  of permit expiration and reissuance thereafter.

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                                                      CIlAR-i
        OUTSIDE PRETREATMENT COMPLIANCE DATES, BASED ON CONSTRUCTION GRANT AWARDS AND PRETREATMENT REQUIREMENTS'*
                     JUNE 30,  1:980
DECEMBER 31, 1980
2-1/2 YEARS FROM  INITIATION  OF
COMPLIANCE SCHEDULE, JANUARY 31,
1983, OR 6 MONTHS HEFORE THE
FINAL IOZ OF STEP 3 GRANT
WHICHEVER IS SOONER
Group
1 Step 1 Step 2
Awarded Awarded
2 Step 1 Step 2
Awarded Awarded
3 Step 1
Awarded
4 Step I
Awarded
'.-"•'
. ' Step 3
•:••'• Awarded
.-.
,f
•£
\
Z-
I''
••/. :
fitcp 2 /Activities 1-3 *^ Step 3
/Awarded! due by applies- (Awarded
,-;;' \ tlon for Step 2/
^ '
;c -.
'••Step. 2 /Activities 1-3 \
VAwnrdedj due by appllcn-r 1
;' [ tlon for Step 2/
•S •':
V. .
Actlvl
'.
Step 3 /'Activities 1-7 \
Awarded I due by appllcn- I Actlvl
\ tlon for Step 3 J
Activl
L "
Step 3 /Activities 4-7 \
Awarded J due by nppllcn- 1 Actlvl
\ tlon for Step 3/
ties 1-8 Due
uy 8 Due
lea 4-8 Due f
y 8 Due
i
:AInterlm dates are  negotlnble and  arc cntabllshed by the permit-Issuance authority

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                                DOCUMENT C

              Explanation of Procedural/Funding Requirements
                      for State Pretreatraent Programs


1.  Procedures/Funding to Identify POTWs Whicft wm be Required to
    Develop POTW Pretreasnent Programs

    The State must have the ability to determine which of its municipal
    permittees will be required to develop a POTW pretreatnent program.
    As section 4Q3.8(a) of the pretreatanent regulation explains, POTWs
    required to develop a program will include those POTVs with a
    design flow over 5 mgd receiving-from industrial users wastes   •
    which:

    o  pass through the POTW untreated

    o  interfere with the operation of the treatnent worts

    o  are subject to pretrea'Snent standards developed under the
      • authority of section 307(b) or  (c) of the CWA.

    In determining which POTWs are above 5 mg'd; the State should look
    at average design flow.  In addition, if one permittee controls
    several treatment works, thje cumulative flow of the treatment works
    should be considered in calculating average .design flow.  For
    example, one Regional Authority controlling 3 treatment works with
    average design flows of 3, 2 and 2 mgd respectively would be   	  ...
    viewed/for the purposes of the .pretreatnent regulation, as a
    single operation with an average design flow greater than 5 mgd.

    A recommended  first step in determining which POTWs over 5 mgd
   .should be required to develop.a pretreatnent .program would,be..to   . .  ....
    determine which POTWs receive wastes from  one or more industries
    within the 21  industrial categories listed in the NRDC Consent
    Decree (for reprinting of Consent  Decree see The Environmental
    Reporter-Cases, 8 ERC 2120).  EPA  anticipates that categorical  pretreatment
    stanaaras unoer section 307(b) and (c) will be developed for almost
  .  all industrial subcategories within the 21 industrial categories
  ••listed in the -NRDC- Consent Decree-. --A po-ssible'approach to-detecting-- •
    these  sources  would be to examine  industrial inventories such
   • as the Dunn and -Bradstreet Market  Indicator and the Directory  of
    Chemical Producers, puolished oy the Stanford Research  institute,
    to determine wnich of the listed sources are within the State  and
    discharging into POTWs.

    A second step  in identifying POTWs required to develop  a POTW
    prstreatment program might De to look at those ?OT«'s which  are  not
    .•nesting their  permit conditions.   Such  permittees would be  likely
    candidates for a pretreatment program aimed at controlling  pollutants
    which  interfere with the operation of the  POTW.

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    Section 403.8(a) of the pretreatment regulations also gives the
    State authority to require the development of a pretreatment
    program by POTWs with average design flows of 5 mgd or less.  It is
    recommended that the State require the development of a program
    wherever the POTW receives industrial wastes from sources in one
    or more of the 21 industrial categories listed in the HRDC Consent
    Decree, is not meeting its permit conditions or where municipal
    sludge is not meeting applicable requirements.  The State is
    strongly urged to exercise its option to extend the requirement to
    develop pretreatroent program as broadly as possible.  The burden of
    proof for demonstrating that a program is not needed should rest on
    the' POTW.  Where there is some doubt that a certain POTW has
    industrial influent subject to pretreatment requirements, the POTW
    can be allowed to show that it need not develop a program.  In such
    cases, a clause can be inserted in the municipal permit along with
    the compliance schedule for the development of a pretreatanent
    program.  This clause would state that if the industrial waste
    inventory required by the compliance schedule demonstrates, that the
    POTW has no significant contribution of industrial wastes which
    would be subject to pretreataient requirements, the POTW would not
    be required to continue development of the .program.... ....

    In brief narrative form, the State should explain those procedures
    it has currently developed for identifying POTWs above and below 5
    mod required to develop a pretreatment program.  The narrative
    should be accompanied by a statement of the resources currently
:    devoted to  this undertaking.   If a program .to identify appropriate
    POTWs is planned for  the future, the State should indicate what
    approaches  to  identifying POTWS will be used and what critaria will
    be applied  "in  identifying the  pollutants and industries subject to
    pretreatment requirements. ..The State .should also describe .briefly
    its planned.procedures for providing technical  and legal  assistance
    to POTWs where help is needed  in developing a POTW pretrea-Snent
    program.

2.  Procedures/Funding to Notify PQTWs of Pretreatment Requirements

•-  ••• The State should indicate  those procedures--.it has developed  to .
    notify POTWs of applicable pretreatment requirements  as  set  forth
 -   in 40 CFR 403.8(2)(iii).  This may c&nsist of a mailing  system  for
    'distributing information  such  as copies of the  pretreatment  regula-
    tion and any guidance on  developing  a POTW pretrealment  program.
    •prepared by the State or  EPA.  Any such distribution  system  should
    be coordinated with similar  information networks  employed by  State
    personnel in charge of  EPA construction grants.

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3.  Procedures/Funding to Incorporate Pretreatment Requirements In Municipal
    Permits

    Where States currently have the authority to revoke and reissue or
    modify municipal permits to incorporate an approved pretreatment
    program or a compliance schedule for developing such a program,
    (see Attorney General's Pretreatment statement section 2} they will be required
    to exercise this authority.  Otherwise, a State must include a
    modification clause in appropriate POTW permits which calls for the
    incorporation of pretreatment requirements at a later date.  The
    State should indicate to EPA the priorities it will use for incorporat-
    ing pretreattient requirements into POTW permits and an estimate
    of the additional resources, if any, which will be required to
    carry out this task.  For example, the State should indicate to the
    best of its ability:

    o  the number of municipal permits which will incorporate pretreatsnent
       requirements at the same time as they are revoked and reissued
       or modified for the purpose of meeting the provisions of 301 (i)
       or 301 (h) of the Clean Water Act;

    o - the number of expiring municipal permits not receiving 301(i) or
       301 (h) modifications which wil-1 incorporate pretreatment conditions-
       upon reissuance

    o  the number of municipal permits to  be revoked, and reissued  or
       modified  to include an approved pretreatment  program or a
       compliance schedule for developing  such a program

4.  Procedures/Funding to Make Determinations on Requests for POTW
    Pretreatroent Program Approval and Removal Allowances'~

    The Stats must  have the procedures and funding to receive and  make
    determinations  on  requests for POTW pretreatment  program and
    removal  allowance  approval.   In general  this responsibility will
    require  that the State-have procedures-and.funding to:-'  ••   •   •

    o  comply with  the public  notice provisions, of section  403.11(b)(l)
       of the regulation which requires the  State  to:

       1.  mail  notices of the request  for approval  to adjoining
           States whose waters may .be affected;

       2.  mail  notices of the  request, .to  appropriate area-wide  planning
           agencies  (Section  208  of  the CWA)  and other persons  or  organiza-
           tions with  an  interest in  the  request for program approval  or
           removal  allowance;

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       3.  publish a notice of the request in the largest daily newspapers
           of the municipality in which the POTW requesting program
           or removal allowance approval is located.  These notices
           shall indicate that a comment period will be provided for
           interested parties to express their views on the request for
           program approval or removal allowance.

    o  Provide a public hearing if requested by any affected or interested
       party as provided for in section 403.1Kb)(2).  Notice of such a
       hearing will be published in the same newspapers, where the
       original notice of request for program or removal credit approval
       appeared.

    o  Make a final determination on the request if EPA has not objected
       in writing to the approval of the request during the comment
       period..  In making the final determination, the Stats should
       take into consideration views expressed by interested parties
       during the comment period and hearing, if held.

    o  Issue a public notice of the final  determination on  the  request.
       This notice shall be sent to all persons who submitted comments
       and/or participated in the public hearing.   In  addition, the
       notice will be published in the  same newspapers as the original
       notice of request for approval was  published.

••   The  State should indicate to EPA 'by "October 10, its-current ability
    to carry out these  responsibilities, focusing primarily on  staffing
    and  funding availability.  This assessment  should  be  based  on  an
    estimate of the  number of PQTWs which  will  be scheduled to  receive
.   • POTV pretreatment program and.removal  allowance approval during.the  •
    remainder of the State's budget year.  The  Stats  should then
    indicate the projected resource levels for  POTV pretrea'anent
    program and removal allowance  approval  in each  of  the budget years
    1979-1983 based  on  the estimated  number of  POTk's  requesting program
    and  removal allowance approval during  each  of these years.  Finally,
    the  Stats should explain how it can. insure,  to  the., pest of  its
    'ability, that  the funding required  .to  carry out  this  activity  will
    be available each year.                  .         .....

5.  Procedures/Funding  for  Identifying  and Notifying  Industrial
    Users Subject  to ?retreatment  Requirements

    The  prstrea"Client regulations provide  that where  a  POTW  is  not
    required to develop a  POTi^ pretreatment  program,  the  State  will
    assume  responsibility  for  iaenzifying  industrial  users  of  the  POTV
    which mignt be  subject  to pretreatment standards.   The  Stale may

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    devise its own methods for obtaining this information, including
    requiring -the POTV to identify the industrial users in question.
    Reference to the Dunn and Bradstreet and Directory of Chemical
    Producers listings, as mentioned earlier, may provide a convenient
    first step.  In many cases this Information may already have been
    provided by the POTV through part 4 of the municipal permit applica-
    tion form.  Through whatever means it chooses, the State should
    .insure that all industrial users which fall within one or more of
    the 21 industrial categories listed in the NRDC Consent Decree are
    identified.  In addition, the State should identify as subject to
    pretreatsnent standards all industrial users which contribute
    pollutants which interfere with the operation of the treatment
    works or pass through the POTV untreated.


    Once the appropriate industrial users have been identified,' the
    State must ensure that they are notified of all applicable existing
    pretreannent standards and of applicable pretreataent standards
    which might be forthcoming.  Acceptable procedures would include
    a mailing list for industrial users or an arrangement with the POTV
    requiring it to provide  the requisite notice.

    The State should indicate by October 10, whether it has presently
    in operation effective procedures for identifying and notifying
    industrial users currently or potentially subject to pretreatnent
    standards.  If such procedures are not currently on line,  if
    for example, information supplied by part 4 of the munici-pal
    application form is not  sufficiently detailed to-provide the
    required information, the State  should indicate .how it plans  to
    develop the ability to identify and notify appropriate industrial
   .users.  The description  of these procedures should  be accompanied
    by an assessment of resources needed to  implement them, the current
    availability of resources to meet this need and plans for  obtaining
    additional-resources if.  required.   .   ..  -.    ;,;  •-.•.-'....    •••  •  •

6.  Procedures/Funding for Identifying the Character and Volume of
    Pollutants Contr-iDuted by  Inou'strlal Users to POT'iTs

    Section 403.10(f)(2)(i)  of the pretreaunent  regulation provides
• •   .that where, a POTV  is not required-to. develop  a PQTV ..pretrea'onent.
    program, the State will  be required  to 'carry  out those procedures
    which would otherwi-se  have been  the  responsiblity of  the- POTV.   One
    of these responsiblifies is  the  identification of the character
    and volume of  pollutants being contributed to  the POTV by  sources
    subject to pretreatment  requirements  (see  403.8(f)(2)(ii)).
    Industrial users  subject to  pretreatment requirements  include those
    which are  subject  to pretrsament  standards  promulgated under
    section 307(b)  and (c) and/or, contribute  pollutants  which interfere
    with  the  operation of  the POTV or which  pass  through  the POT*/
    untreated.  This  responsibility  is complicated by the  fact that

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analytical and monitoring techniques are not yet available to
provide a quantitative analysis of the presence of many of the
pollutants in question.  In recognition'of this problem, EPA
recommends that States follow the procedures outlined below in
developing their inventory of industrial waste contribution.

o  The first step in the waste inventory should be a qualitative
   analysis of pollutants being contributed by all industrial
   sources within the system.  The individual industrial users
   should be asked to provide information on the type and approximate
   quantity of pollutants discharged by the facility.  This information
   should be derived entirely from knowledge of the facility's
   process and. should not require any  sampling at the source.

o  Second, the State should review this qualitative information on
   the pollutants being discharged into the system and remove from
   further consideration those pollutants which are not within the
   129 pollutants to be regulated with national pretrea^onent
   standards and/or which are known not to interfere with the operation
   of the POTV or pass through the POTW untreated.

o  Third., the  State .(or PQTV if the State so directs) will then
   sample the  influent to the POTW to  determine which of the
   pollutants  remaining after step two appear in significant
   concentrations in the influent to the POT*'.  In carrying  out
   this sampling, the State should use tnose sampling and analytical
   techniques  set forth in 40 CFR part 136.  If a pollutant
   appears at  such a low concentration tnat.it is highly unlikely
   that it would have an adverse effect on the operation of  the
   POTV,  pass  through untreated, or  if the pollutant  ioes not
   appear at all in the influent to  the POTV, it should be excluded
   from further consideration.

o  Fourth, the analysis in preceeding  steps  has resulted in  a list  '
   of inose pollutants contributed to  tne system which may affect
   tne operation of the POTV or pass through the POT*' untreated.
   The next stsp is to determine which "industrial users have  such
   pollutants  in their effluent.

o  Fifth, those industrial users'identified  in  step  four will be •
   •'required''to 'do sample'ng.and' analysis to- quantify  the amounts,..of:.
   those  pollutants being  discharged by that source  into  the  POTV.
   If necessary, the Stats may tnen  impose U2on  that industrial
   user an effluent limitation which will ensure  that such  pollutants
   are discharged at levels which will nst  interfere  witn  the
   operation of the treatment works  or pass  through  in  unacceptable
   amounts.

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o  Finally, as Federal pretreatment standards for industrial
   subcategories are promulgated, the State will require that
   industrial users belonging to those subcategories sample
   and analyze their effluent to quantify the amount of pollutants
   regulated by the standard being discharged by that industrial
   user.

The above procedures can be characterized as a 2-part program.
Initially, prior to the development of sampling and analytical
techniques for many of the complex pollutants regulated within the
21 industrial categories (and approximately 400 industrial subcate-
gories) set forth in the NRDC Consent Decree, the State will focus
on identifying and quantifying only those pollutants which interfere
with the operation of the treatment worts.  Then, as Federal
pretreatment standards for the 129 pollutants in the 21 industrial
categories merge, along with recommended sampling and analytical
techniques for such pollutants, the Stats will be required to
elicit specific quantitative information on the character and
volume of pollutants discharged by indstrial users regulated by
Federal standards.

PCTVs which are required to develop a POTW pretreatoent program  are
responsible for .Carrying out the industrial waste inventory in  lieu
of the State (see 403.8(f)(ii) and step 2 of the municipal pretreat-
ment compliance schedule).  The State should recommend that this
2-step program be used by such POTVs.

The State  should indicate to EPA by October 10  its current ability
to carry out the industrial waste, characterization program  described
above.  Particular attention should be paid to  the availabil ity  of
resources  to implement tnis survey, the technical ability of  the
State  to sample influent to POTWs as  required by step  3 above,  and
the State's  technical ability to develop effluent limitations  for
industrial users where necessary to control .the  introduction  of.  .  •
pollutants which interfere with the operation of the POTW.  The
State  should discuss  those resources  and technical abilities  which
it will need to acquire to fully implement  the  components of  the
industrial waste  inventory described.above.

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                                   8 ,

7   Procedures/Funding to Make Determinations on Requests for Fundamentally
    Different Factor Variances

    Section 403.13 of the pretreatment regulation provides that States
    will be responsible for considering requests for fundamentally
    different factors variances.  Any interested person believing that
    factors relating to an industrial user are fundamentally different
    frora the factors considered during the development of a categorial
    pretreatnent standard applicable to that user may apply for a
    fundamentally different factors variance allowing a modification of
    the discharge limit specified in that standard.

    The State must have procedures to review such requests, and make a
    determination to deny the request or recommend to EPA that the
    request be approved.  In making this determination, the State must
    consider the factors outlined in 403.13(c) and (d).  The State
    should submit to EPA by October 10, 1978, a discussion of its current
    ability to consider requests for fundamentally different factor
    variances.  Emphasis should be placed on current funding availability
    and projected funding needs.  In addition, the State should
    identify the existing or required technical expertise it will need
    to evaluate the various factors listed in 403.13(c) and (d).

B.  Procedures/Funding to Ensure Compliance with Pretreatment Standards  •  .
    anc Permit Conditions

    Where  a PQTrf is not required to develop a POTW pretreatment  program,
    the State will be required to ensure that industrial users of that
    P07*' subject to pretreatment standards comply with those standards.
    In  order to do so, the State must develop procedures which include
    the following:

    o Where State law provides adequate authority, the State should
•   •  .have the technical .ability to  review the  technology which  the.
      industry proposes to install  in order to meet'-State or Federally
      imposed pretreatment standards.
       of  403.12U),  indicating'whether  or not the  industry  has  complied
       with  applicable, effluent limitations..

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o The State must develop the administrative and technical ability
  to receive and analyze the periodic reports submitted by industrial
  users indicating continued compliance with pretreatroent standards
  (see 403.12(e)).

o The State must ensure that it has adequate resources and technical
  expertise to determine, independent of reports submitted by
  the industrial user, that the user is in compliance with applicable
  pretreatment standards. 'For example,  the State should have
  procedures for scheduling periodic checks on industrial users
  to spot-check compliance, sampling the effiuent at the industrial
  sources and analyzing this effluent to ensure compliance. with
  applicable limitations.

Where a PQTV pretrea-Snent program has been developed and the PQTW
has been granted a removal allowance for certain pollutants, the
State must have procedures.to:

o receive and analyze periodic reports from the POTW indicating
•  continued removal at the rate allowed by the POTV's permit, and
  continued compliance with sludge  requirements;

o sample and analyze the  influent to and effluent from the POT*/ to
  determine, independent  of reports submitted by the POTW, that the
  POT* is maintaining the approved  level of removal  and  is in
  compliance with all applicable sludge requirements.

It  is recognized that the sampling  and analytical requirements
explained in this section may  impose a substantial resource  burden
on  t.w.s State.  While it is preferred that  the State  develop  its owr.
technical expertise, an acceptable  alternative would be  for  the
State to contract with private consultants, universities or  other
groups with sufficient technical expertise to carry  out  the  sampling
and analytical  requirements described'in' this section.-'        •    .

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

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IfcJi

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. D.C. 20460
                                                 OFFICE Or ENFORCEMENT

MEMORANDUM                                            n - £ 0 " 3


TO:       Regional Enforcement Division Directors
          Regional Permits Branch Chiefs

FROM:     Acting Deputy Assistant Administrator
          for Water Enforcement  (EN-335)

SUBJECT:  Incorporation of Pretreatment Program Development
          Compliance Schedules Into POTW NPDES Permits

     The General Pretreatment Regulation (40 CFR Part 403)
requires that certain publicly owned treatment works  (POTWs)
develop programs to ensure compliance with pretreatment  discharge
standards by nondomestic sources discharging into the POTW.  A
necessary first step in developing these programs is  the insertion
of a compliance schedule for program development in the  POTW's
NPDES permit.  The purpose of this memorandum is to re-emphasize
the importance of incorporating pretreatment compliance  schedules
into all appropriate permits at  the earliest possible time.

BACKGROUND           -•  ' -  .••.-..•.••<•••..  • •  ... ....

     It is the intention of the  Clean Water Act and the  National
Pretreatment Strategy that the primary responsibility for enfor-
cing pretreatment standards be delegated to local POTWs.  This  is
to be accomplished by EPA and NPDES States overseeing  the develop-
ment of POTW pretreatment programs meeting the .requirements of
the General Pretreatment Regulation.  Section 403.8(d) of that
regulation requires that,

     If the POTW* does not have  an approved Pretreatment Program
     at the time the POTWs1 existing Permit is  reissued  or
     modified, the reissued or modified Permit  will contain the
     shortest reasonable compliance schedule, not to  exceed three
   '•  years or July 1, 1983, whichever is sooner, for  the develop-
     ment of the legal authority, procedures  and funding required
     by paragraph  (f) of this section.  Where the POTW is located
     in an NPDSS State currently without authority  to require a
     POTW Pretreatment Program,  the Permit shall incorporate  a
     modification or termination clause as provided for  in
     section 403.10(d) and the compliance  schedule  shall be
     incorporated when the Permit  is modified or reissued pursuant
     to such clause.
   As defined by  section  403.8(a)

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The insertion of these compliance schedules is a critical element
in launching the.development of many POTW pretreatment programs.
Compliance schedules also serve as a means for EPA and NPDES
States to track program development.

    • Those POTWs required to develop a pretreatment program
have been identified by States and Regional offices.  Preliminary
information on these POTWs was forwarded to Headquarters at the
start of 1979.  Since that time, the Regions and -States should .
have developed & firmer list of exactly which POTWs will need
pretreatment programs.  For those POTWs so identified, the
task of incorporating compliance schedules should be well underway.

CURRENT STATDS AND NECESSARY ACTIONS

     Despite the importance of compliance schedules to program
development and the need for their swift incorporation if
regulatory deadlines are to be met, there have been indications
that schedules have not been inserted in all appropriate permits.•
While some Regions and States have moved forward strongly in  this
area, others have not.  If the pretreatment program is to be
successful and the- momentum for local, program development tha.t
has been generated is to be maintained, it is essential that  this
activity is given appropriate priority.

     In order to meet both the July 1, 1983 program approval
deadline and allow POTWs adequate time for program development,
compliance schedules should be established as soon as possible.
By inserting schedules in permits'.as they expire or'are 'modified,
the disruption and waste of resources created by reopening
permits solely to incorporate pretreatment compliance schedules
will be avoided.  Although it is desirable to avoid opening
permits just to  insert pretreatment .schedules,-this step may
become necessary' as the 1983 deadline approaches.  As 'first round
permits expire in FY 80, the insertion of compliance schedules
will be a priority activity in this fiscal year.  Less than
complete attention to this activity will create  a backlog with
cccentially disastrous program consequences.

     .1 understand that the timely insertion of compliance
schedules has been made more difficult by'the delay 'in' approval
of State pretreatment programs. ' However,, 'in many .cases, this .
delay need not affect the development of POTW compliance schedules.
The General Pretreatment Regulation and the National Pretreatment
Strategy make it clear that those States which currently have the
authority to reissue, modify or reopen POTW permits  to  incorporate
pretreatment requirements should exercise that authority and  put
compliance schedules into expiring permits or those  being modified
for some other reason.  This should be the case  with  the r.ajority|
of NPDES States.  Those few States which  at  this time  lack  the
necessary authority to incorporate  corr.pliance schedules

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should continue to put modification clauses in permits.  These
modification clauses should require that such permits be promptly
reissued or modified after State pretreatment program approval to
incorporate an approved POTW program or a compliance schedule for
the development of a pretreatment program.  To alleviate future
delays, all States should move quickly to receive State program
approval.

     The incorporation of compliance schedules into permits
should not be a major resource burden on either Regional offices
or States.  Individual schedules should not vary a great deal
from the model provided in guidance material.  A model compliance
schedule accompanied by a detailed explanation of how to develop
such a schedule was included in the November 29, 1978 memorandum
from the Deputy Assistant Administrator for Water Enforcement and
the Deputy Assistant Administrator for Water Programs Operations
which is attached for your assistance.  This information was
expanded upon in the Pretreatment Guidance Document for NPDES
States that was distributed in February, 1979.  Additional copies
of this Document are .available from Headquarters Permits Division.
If these models are followed, 'it should require a minimal' amount
of resources to carry out this critical function.  The investment
of resources in this effort now will yield a long term resource
saving for EPA and States.  Pretreatment programs developed as a
result of these compliance schedules will shift most program
responsibilities to POTWs.

CONCLUSION

     To allow us to evaluate the progress of this program,
and to help us plan where we can best utilize our contract
collars, we ask 'that you provide'us with the. following information
on compliance schedule activities:

       o  Your current count of  the number of POTWs or POTW
          Authorities which are  required to develop pretreat-
          ment programs.

       o  Of those POTWs or POTV? Authorities required  to develop
         . programs, how 'many -have .pre treatment; compliance  schedules?
          How many have modification clauses?

       o  How many POTWs or POTW Authorities,  required  to  develop
          pretreatment programs, do not  yet  have  either  a  compliance
          schedule or a modification clause?

       o  Kow co you plan  to  deal with  those  POT.-.'s  or  PCTW
          Authorities with  neither  a compliance  schedule  nor  a
          r.ccif icat icn clause,  in a rr.anner  that  will  allow then
          sufficient time  to  develop a  program  prior  to  the  July
          1, 1963 deadline?

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 ~cr  purposes of  answering the first three questions,  we have
 attached  a  form  that can be filled in for each State  in your
 Region.   Because of the need to finalize our contract planning
 process,  we need this information as soon', as possible and would
 like to have it  within four weeks of your receipt of  this memorandum.
 Please  send the  completed forms to Michael Kerner,  Permits
 Division,  (EN-336)/US EPA, 401 M Street SWf Washington,  D.C.
 20460.  If  you-have any questions on this or any other aspect  of
 the  Kational Pretreatment Program you can call Michael Kerner  at
 (202) 755-0750 (-FT.S).

      By diligently pursuing this compliance .schedule  activity,
 we should be able to prevent any further program slippage and
 encourage the rapid and successful development of this important
 pollution control program.
                                                      'A,-
                                  Leonard A. Miller
'Attachments

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                                                                 VLB.3.
"Statutory Deadlines for Compliance by Publicly Owned Treatment Works Under
the CWA", dated March 4, 1983.
                                                                     \iol9

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^
            UNITED STATES ENVIRONMENTAL PROTECTION AGEN
                          WASHINGTON, DC 20460
                             4 MAR 1983
  MEMORANDUM
                                                   LEGAL AND ENFORCEMENT COUNSEL
  SUBJECT:
  FROM:
  TO:
Statutory Deadlines for Compliance by Publicly
Owned Treatment Works under the Clean Water Act
Robert M. Perry
Associate Administrator
  and General Counsel

Frederic A. Eidsness, Jr.
Assistant Administrator for
                                        Water
  ISSUE

       Section 21 of the Municipal Wastewater Treatment Construction
  Grant Amendments of 1981, amended §301(i) of the Clean Water Act.
  by substituting "July 1, 1988," for "July 1, 1983." What effect, .
  if any,  does this.amendment have on -the statutory compliance dead-
  lines for publicly owned treatment works contained in §301(b)(1)(B)
  and §301(b)(1)(C), and on the authority of EPA and States to
  establish compliance schedules by the exercise of enforcement
  discretion?
  ANSWER                 . -...   .....    .... .'...:.....
  .^^W^-««^^B^^BB             ^     •      ..*"•'•'

       Section 21 of the 1981 Amendments does not amend the July 1,
  1977, compliance deadlines for POTWs contained in §301(b)(1)(B)
  and §301(b)(1)(C).  However, under §301(i), es amended, EPA and. .
  States with approved NPDES programs may extend this deadline in
  NPDES permits up to, but not beyond, July 1, 1988, for POTWs which
  satisfy the criteria in §301(i) and implementing regulations.
  Although permits for POTWs which do not qualify for §301(i) exten-
  sions must require immediate compliance, EPA and States may use
  their enforcement discretion to establish compliance schedules in
  the context of enforcement actions, such as administrative orders
  and judicial decrees.  ' .  ...       " •'•               -            i

  DISCUSSION             '••  ••••••'-••   ••-....

       In 1972, Congress established July 1,  1977, as a statutory
  deadline by which publicly owned treatment works (POTWs) were
  required to comply with effluent limitations based on secondary
  treatment (§301(b){1)(B))  and any more stringent limitations,
  including those necessary to meet water quality standards (§301(b)
  (1)(O).  Numerous administrative and judicial decisions held that
  the Agency lacked authority to extend the date for compliance in
  NPDES permits beyond the statutory deadline.

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schedule did .not extend beyond the statutory deadline, there
would probably not be a need to resort to an enforcement action.)
The quotation from the State Water Control Boarg case cited above  ..
supports this position.  Moreover, the recent Supreme Court
decision in Weinberger v. Romero-Barcello, 50 L.W. 4434 (April 27,
1982) provides strong confirmation of this view.
                           v
     It is important to emphasize the limited purpose and effect
of an administrative order, or a judicial decree, that establishes.
a compliance schedule extending beyond a statutory deadline.
Such an order or decree does not "extend the deadline," in a legal
sense; for neither the Agency nor the judiciary has authority to
amend or disregard a statute.2  Rather, such orders and decrees are
a means of enforcing the statute, and achieving compliance.
Neither administrative orders nor judicial decrees "allow" or
"permit" continued violations of the law, but rather require
compliance with it, as expeditiously as possible.

     In summary, the 1977 deadlines in §§301(b)(1)(B) and
301(b)(l)(C) remain in effect for any POTW which does not qualify
for an extension under §301(i).  However, both judicial
interpretation and Congressional acquiesence support EPA's view
that the Agency may, and should, use enforcement discretion in a
responsible manner to establish expeditious but realistic compli-
ance schedules for POTWs.  Use of judicial enforcement and
§309(a)(5)(A) orders for this purpose, in appropriate cases, are
responsible methods by which to exercise that discretion.
^ Therefore, courts have held that issuance of an administrative
order - even if the discharger complies with it - does not absolve
the discharger from liability for the violation, or preclude the
Agency from commencing a judicial enforcement action based on the
same violation.  United States v. Earth Sciences, Inc. , 599 F. 2d
368 (10th Cir. 1979).  United States v. Outboard Marine Corp., 12
ERC 1346 (N.D. 111. 1978). United States v. Detrex Chemical Indus-
tries, Inc. , 393 F. Supp 735 (N.D. Ohio 1975)  Nor does issuance
of an administrative order preclude citizens' suits against the
discharger under §505 of the Act.

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Bethlehem Stqel Corp. v. Train, 544 F.2d 657 (3d Cir. 1976);
United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977);
Republic Steel Corp. v. Costle, 581 F.2d 1228 (6th Cir.  1978).

     With respect to POTWs in particular, the Fourth Circuit held
that EPA lacked authority to extend the 1977 deadline in an NPDES
permit issued to a POTW, notwithstanding that the Federal Govern-
ment had illegally impounded Federal construction grant money.
State Water Control Board v. Train, 559 F.2d 921 (4th Cir. 1977).
However, the court also noted that the Agency had discretion in
enforcing the deadline, and that it expected the Agency to exercise
its discretion in a responsible manner: .
      •
          Our holding in this case does not mean that, absent
     Congressional action, severe sanctions will inevitably be
     imposed on municipalities who, despite good faith efforts,
     are economically or physically unable to comply with the
     1977 deadline.  We fully expect that, in the exercise of
     its prosecutorial discretion, EPA will decline to bring
     enforcement proceedings against such municipalities.
     Furthermore, in cases where enforcement proceedings are
     brought, whether by EPA or by private citizens, the courts  .
    . retain equitable discretion to determine whether and.to what
     extent fines and injunctive sanctions should be imposed
     for violations brought about by good faith inability to
     comply with the deadline.  In exercising such discretion,
     EPA and the district courts should, of course, consider the
     extent to which a community's inability to comply results
     from municipal profligacy.  559 F.2d at 927-28.

     Realizing that many dischargers would fail to meet the 1977
deadline despite good faith efforts, EPA formalized a system by
which to establish realistic compliance schedules through the
exercise of enforcement discretion.  Under this policy, EPA and
NPDES States issued "enforcement compliance schedule letters"
(ECSLs)  to POTWs and industrial dischargers which were unable to
meet the July 1, 1977, deadline despite all good faith efforts.
An ECSL contained: 1) an expeditious but realistic compliance
schedule; 2) the discharger's commitment to abide by the schedule
and acknowledgement that the schedule was achievable; and 3) the
Agency's commitment not to take further enforcement action if the
discharger complied with the schedule.

     The Clean Water Act Amendments of 1977 addressed the issue  of
noncompliance with the 1977 deadline in different ways for munici-
pal dischargers and industrial dischargers.  For direct industrial
dischargers, Congress chose not to allow any extensions of the  1977
deadline to be contained in NPDES permits.  Rather, Congress
directed the Agency to use its enforcement discretion in such
cases, and authorized EPA to issue "extension orders" under the•
authority of §309(a)(5)(B).  Thus, for industrial dischargers,
Congress clearly defined the terms upon which it authorized the

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                              - 3 -

Agency to use -its enforcement authority to address noncompliance
with the 1977 deadline.

     Congress took a different approach for POTWs.  Section 301(1)
(1) authorized EPA and NPDES States to extend, in NPDES permits,
the July 1, 1977, deadline up to July 1, 1983, for POTWs which met
certain criteria.  EPA was ..able to establish compliance schedules
for most POTWs in §301(i) permits, and stopped issuing ECSLs.-  As
1983 approached,  it became clear that many POTWs could not comply
by July 1, 1983,  and EPA again needed a device to establish
realistic compliance schedules.  Rather than resurrect the ECSL
policy,, EPA decided to use its enforcement authority under §309(a)
(5)(A).  This subsection, added by the 1977 CWA Amendments,
authorizes EPA to issue administrative orders which "specify a time
for compliance .  . .not to exceed a time the Administrator deter-
mines to be reasonable in the case of a violation of a final dead-
line, taking into account the seriousness of the violation and any
good faith efforts to comply with applicable requirements."  The
October 1979 National Municipal Policy and Strategy directed EPA
Regions to issue  §309(a)(5)(A) orders to POTWs, establishing
compliance schedules which could exceed the 1977 deadline, for
secondary treatment, but which were not to exceed the 1983 deadline
for the more stringent, "best practicable waste.treatment technology
over the life of  the works"  ("BPWTT") required by §301(b)(2)(B).

     In the 1981  CWA Amendments, Congress chose not to supercede
the Agency's practice of using §309(a)(5)(A) orders as a means of
establishing compliance schedules for POTWs through the use of
enforcement discretion.  However, Congress repealed §301(b)(2)(B),
thereby eliminating the major reason for requiring that such orders
not extend beyond July 1, 1983.  Congress also amended §301(1) by
substituting "July 1, 1988"  for "July 1, 1983," wherever the latter
appeared, thus allowing NPDES permits for qualifying POTW's to
contain compliance schedules up to July 1, 1988.

     However, Congress did not modify the 1977 statutory deadline
contained in Section 301(b).  In fact, §21(a) of the 1981 amend-
ments explicitly  states that the Amendments are not intended to
extend schedules  of compliance then in effect, except where
reductions in financial assistance or changed conditions affecting
construction beyond the control of the operator made it impossible
to complete construction by July 1, 1983.

     There is even stronger support for the authority of the
Agency (acting through the Department of Justice) and the district
courts to establish compliance schedules in judgments entered in
civil enforcement actions, including compliance schedules that
extend beyond a statutory deadline.* (Indeed,  if the compliance
* As you are aware, the Administrator has  issued a policy on
enforcement of the December 31, 1982 deadline for attainment of
primary ambient standards under the Clean  Air Act.  This policy
assumes that equitable relief may be obtained in judicial enforce-
ment proceedings.

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

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                                                       OFFICE OF
                                                        WATER
•  SEP 2 2 1983

MEMORANDUM
SUBJECT:  Example Language for Modifying NPDES Permits
          for Pretreatment Program Approval

FROM:     Martha G. Prothro, Director
          Permits Division (EN-336)

TO:       Water Management Division Directors


     There are over 1700 POTWs that must develop local pretreatment
programs.  To date, over 100 POTW programs have been approved and
many of the remaining POTWs have submitted or are very close to
submitting a final program.  Therefore, many programs will be
approved in the next several months.

     After an industrial pretreatment program is approved, the
POTW's discharge permit must be modified or reissued to incor-
porate the program as an enforceable component as required in 40
CFR §403.8(c).  The modification of permits is authorized under
40 CFR § 122.62(a)(7) where reopener conditions have been used
in the permits.  In 40 CFR §122 .44(j ) (2 ) , permits must include
conditions such that, "... The local program shall be incor-
porated into the permit as described in 40 CFR Part 403.  The
program shall require all indirect dischargers to the POTW to
comply with the reporting requirements- of 40 CFR Part 403."
Reporting requirements for the POTW that are inserted in the
modified permit are covered under 40 CFR §122.48(c) which
references §122.44.

     There have been several requests from Regional and State
agency personnel for help with appropriate permit language.  We
have reviewed example language for modifying permits from several
Regions and States (attached) and have developed example language
ourselves.  While there are a number of differences among the
examples, you will notice that a common element among the examples
is the requirement that the POTW submit an annual report on
pretreatment activities.  Such reports usually require information
on the POTW pretreatment activities during the past year, a
summary of its effectiveness and proposed program modifications.

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                              - 2 -
The reports summarize industrial user monitoring, compliance and
enforcement activities conducted over the past year.  Regardless
of which example modification language your staff chooses to
adopt or modify, we strongly recommend and advise you to include
an annual reporting element in the modified permit.

     I request that you and your pretreatment staff review the
attached draft permit modification materials and submit comments
to Dr. Gallup of my staff by October 14.  Please call me or Jim
Gallup at FTS 755-0750 if you have any questions.

Attachments


cc:  Pretreatment Coordinators

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             STANDARDIZED LANGUAGE FOR MODIFYING
       NPDES PERMITS FOR PRETREATMENT PROGRAM APPROVAL
     The goals of the Natioaal Pretreatment Program are to improve
opportunities to recycle and reclaim wastewaters and sludges, to
prevent pass through of pollutants into receiving waters, and to
prevent interference with the operation of the publicly owned
treatment works (POTWs) when hazardous or toxic industrial wastes
are discharged into the sewage system.  The primary responsibility
for developing pretreatment programs and for enforcing national
pretreatment standards for industries rests with the local POTW
authorities.  EPA estimates that more than 1,700 POTW Authorities
must develop programs which will protect over 2,000 permitted
municipal treatment facilities.    ••'  ;'

     EPA and State regulatory agencies participate in the
pretreatment program by overseeing the development, implementa-
tion, and continued effectiveness of local pretreatment programs.
In non-NPDES States, EPA issues or modifies permits and retains
authority for .t'he pretreatment program,- although the States may .
participate in some activities.  In NPDES States without pretreat-
ment authority, EPA reviews and approves POTW submissions, but
the State is responsible for permit modification and permit
compliance.  In these cases, it is important for EPA to develop .
an agreement with the State to ensure that permits are modified
to reflect pretreatment program approval.  Program approval and
permit modifications are equally important in NPDES States with
Pretreatment authority.  EPA can obtain some consistency and ease
the States' workload by providing standard permit modification
language to then.

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                              - 2 -


     POTWs have been notified by EPA and State agencies of the

requirement to develop a local program.  Program development

.compliance schedules have been inserted into the POTWs1 NPDES, or

State-issued permits, making development and submission of local

pretreatment programs an integral and enforceable component of

the permits.  Compliance schedules usually require POTWs to

develop and document the authorities, information/ and procedures

necessary to implement the General Pretreatment Regulations.

Municipalities develop the local program with technical and

financial assistance from EPA and the States.


     Generally, a POTW prepares a plan describing how it will

implement the pretreatment program in its service area and submits

the plan to the EPA or the delegated State regulatory agency for

review and approval.  EPA or the delegated State must then review

the submission to ensure that:

     o  All necessary legal authorities are in place.

 .    o  The technical information presented demonstrates the
        POTW's understanding of the industrial community that
        will be controlled (type, size, pollutants, necessary
        pollutants limits, problems to be addressed, etc.).

     o  Administrative, technical and legal procedures for
        implementing the program are consistent with the complexity;
        of the industrial community served. •'•••••••

     o  The estimated cost of implementing the program (including
        manpower and equipment), based on the procedures established,
        is reasonable and revenue sources are available to ensure
        continued, adequate funding.

     o  The objectives and requirements of the General Pretreatment
        Regulations are fulfilled by the planned program.

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                              - 3 -


     It should be reiterated that the POTW's submission at this

point represents only a plan for operating a program to comply

with the regulatory requirements.  To date, more than 100 POTW

pretreatment programs have been approved nationwide.  Most of the

remaining POTWs have already submitted portions of their programs

for interim comment or review.  Accordingly, a large number of

programs should soon be ready for approval without substantial

additional effort.


     After approval, the POTW begins implementing the pretreatment

program plan subject to oversight by EPA or the State regulatory

agency.  .At this time, the Approval Authority turns from

considering program development problems to considering
                                •
implementation, verification and compliance issues, such as:


     o  Documentation of POTWs1 Compliance with Approved Programs.

        For the individual case this means that each POTW must
        demonstrate, through reporting requirements, that, the
        elements of its pretreatment. program are actually being  .
    :    carried ou£.  In the general case, the Approval Authority
        will have to plan oversight and surveillance activities
        that regularly cover all POTWs within its jurisdiction.

     o  Documentation of the Effectiveness of POTW Programs.

        A POTW complying with provisions .of its approved pretreatment
        program may still not be adequately protecting site-specific
     .   receiving water quality and sludge disposal options,
        especially as new requirements are developed.  Appropriate
        measures must be developed to ensure that local environmental
        goals are being met by the POTW and that improvements can
        be evaluated.

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                              - 4 -


      In addition to considering these  issues, Section 403.8(c) of

the General Pretreatment Regulations specifies that the NPDES

permit must be modified or reissued to incorporate the conditions

of the approved program as an enforceable component.  The language

placed in the permit must take into account the  issues mentioned

above and must ensure that:

     o  The general requirements of the National Pretreatment
        Program and the specific requirements of the .local program
        will be implemented  in a manner that achieves the objec-
        tives of preventing  pass through, interference and sludge
        contamination.

     o  The Approval Authority will be able to bring about POTW
        compliance with the  responsibilities established in the
        regulations and the  approved local program submission.
. •  ;  o  The POTW understands  its'-'obligations and  the standards
        and benchmarks against which  its performance will be
        judged.

     Permit modification, then,  is  a  very  important part of the

overall process of implementing the National Pretreatment Program.

Because there are so many important issues  to  be  addressed  in

local programs, and because so many agencies will 'be responsible

'for permit modification and oversight activities, we have

developed the attached model  permit language that can be adapted

to most POTWs across the country.   The attachment includes  standard

permit modification language  (adapted from  actual permit language

from 	 Regions and 	States) that can be used to incorporate

into the permit a POTW's approved pretreatment program and  other

conditions and requirements with which the  POTW must comply.

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                              - 5 -


     This package also includes examples of special condition

clauses.  In certain circumstances, additional substantive or

notification permit requirements may be appropriate for a partic-

ular POTW.  Some examples of situations that might indicate the

need for special pretreatment permit conditions are listed below.


     o  Where the industrial flow represents a very large
        percentage of the total flow of the POTW.

     o  Where only one or two major industrial user(s) discharge
        to the POTW.

     o  Where industrial users have the potential to discharge
        highly toxic, hazardous, or unusual wastes.

     o  Where there are a large number or variety or industrial
        users.

 ;    o  Where-a POTW has a-.history/• of NPDES' permit violations.

     o  Where the receiving waters have unusual water quality
        needs because of sensitive species or intolerance to high
        or varying pollutants loads.

     o  Where a POTW's wastewater. or. sludge, is reused on agricul-
        tural or recreational land or where treated sludge is
        sold commercially.

     p  Where a POTW receives wastes fromi se.pt:age .haulers.,..-,or
      '  "other waste haulers that could be .handling hazardous
        w-astes that have a potential for adverse impacts on the
        treatment plant.

     o  Where the POTW service area is large or made up of
        numerous political jurisdictions requiring cooperation
        and coordination between several local agencies.


For these more difficult situations, we have developed five special

conditions as part of the following standard permit language.

These may be useful when tailored to a POTW with special problems

or circumstances that cannot be covered by the more general,

standardized language.

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                 SUGGESTED PRETREATMENT LANGUAGE
                        FOR NPDES PERMITS
     The following language should be inserted into the "Other
Requirements" section of the POTW's NPDES permit after the local
pretreatment program is approved.
Industrial Pretreatment Program
1.  The permittee .is responsible for enforcing any National •  •
    Pretreatment Standards  [40 CFR 403.5] (e.g., prohibited
    discharges, Categorical Standards, locally developed effluent
    limits) in accordance with Section 307(b) and (c) of the Act.
    The permittee shall establish and enforce specific limits to
    implement.,the provisions ;pf, 40 CFR 403..5(a)';and'tb) as ^
    required by 40 CFR 403.5(c).  These locally established
    effluent limitations shall be defined as National Pretreat-
    ment Standards.

2.  The permittee shall implement the Industrial Pretreatment
    Program in accordance with the'legal authorities, policies,
    procedures, and financial provisions described in the permit-
    tee's Pretreatment Program submission (and related documents)
    entitled,	   and
    dated,    '  	, and the General Pretreatment Regulations
    (40 CFR 403).  The permittee shall also maintain adequate
    funding levels to accomplish the objectives of the pretreatment
    program.

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                              - 2 -


3.  The permittee shall provide the EPA or State with an annual

    report that briefly describes the permittee's program activi-

    ties over the previous twelve months.   The permittee must

    also report on the pretreatment program activities of all

    participating agencies [name them], if more than one juris-

    diction is involved in the local program.  This report shall

    be submitted no later than.                 of each year and

    shall include:

    (a)  An updated list of the permittee's industrial users,
         or a list of deletions and additions keyed to a
         previously submitted list.  A summary of the number of
         industrial user permits (or equivalent) issued this past
         year and the total (cumulative) issued;

    (b)  A summary of the compliance/enforcement activities during
         the past year including total number of enforcement actions
         any discharge restrictions or denials against industrial
         users and the amount of any penalties collected.  In
         addition the summary shall contain the number & percent
         of industrial users  in compliance with:
                   (1) Baseline Monitoring Report requirements;
                   (2) Categorical Standards; or
                   (3) Local  limits


   . (c)  A summary of the monitor ing'activities' conducted during  the
         past year to gather  data about the industrial users, including
         inspections to verify baseline monitoring reports;

    (d)  A narrative description of program activities during the  past
         year including a general summary  of the effectiveness of
         the program in controlling industrial waste.  A descrip-
         tion and explanation of all proposed substantive changes
         to the permittee's.pretreatment program.  Substantive
         changes include, but are not limited to, any major
         modification in the  program's administrative structure
         or legal authority,  a significant alteration of the scope
         of the monitoring program, or a change in the level
         of funding for the program, a major change in the staffing
         or equipment used to administer the program, change in
         the sewer use ordinance, regulations, or rules, a proposed
         change or addition to locally established effluent
         limits (pursuant to  40 CFR 403.5(c));

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                              - 3 -
    (e)  A summary of analytical results from flow proportioned,
         composite sampling for  [list priority pollutants]  at the
         POTW influent, effluent, and sludge for the same [number
         of days] period and bioassay data for (list pollutants)
         for a (number of days) period; and
    (f)  For Baseline Monitoring Reports (where applicable), a
         summary of the industrial users notified during the past
         year, the total cumulative notifications, the number of
         reportsreceived/approved during .the year and total
         cumulative.          ,
    (g)   If EPA (or State) does not object to any proposed
         modifications described in the annual report within 90
         days, the changes shall be considered approved.


4.  The EPA (or State) has the right to inspect or copy records or

    to initiate enforcement actions against an industrial user or

    the permittee as provided in Sections 308 and 309 of the Act.


5.  EPA (or State) retains the right to require the POTW to

    institute changes to its local pretreatment program:

    (a)   If the program is not implemented in a way that satisfies
         the requirements of 40 CFR 403; .

    (b)   If problems such as interference, pass through, or sludge
         contamination develop or continue;

    (c)   If other Federal, State, or local requirements (e.g.,
         water quality standards) change.

Special  Conditions (Case-by-Case)

     The following types of requirements should be inserted into

     a POTW's NPDES permit when special circumstances, such as

     continuing noncompliance or significant or unusual industrial

     discharges, which could cause interference, pass through, or

     sludge contamination, are encountered.

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                              - 4 -
1.  The permittee shall notify EPA (or State) 60 days prior to
    any major proposed change in sludge disposal method.  EPA (or
    State) may require additional pretreatment measures or controls
    to prevent or abate an interference incident relating to
    sludge use or disposal.
2.  The permittee shall establish and enforce regulations to
    control the introduction of septage waste from commercial
    septage haulers into the POTW.  These local regulations shall
    be subject to approval by EPA (or State).

3'.  The ' permit tee shall monitor the following major industrial
    users for the pollutants of concern on a  [frequency, e.g.,
    monthly/ quarterly] basis and forward a copy of the results
    to EPA (or State).
    List Industrial Users
    a..  . '   .'••''•'•
    b.
    c.
List Pollutants of Concern
 ii.
iii.
4.  The permittee shall sample and analyze its influent, effluent,
    and sludge for [list toxic pollutants] on a [frequency] basis
    and forward a copy of the results to EPA (or State).

5.  The permittee shall monitor the receiving waters for [list
    toxic pollutants]  on a [frequency] at [describe monitoring
    site location] and forward a copy of the results to EPA
    (or State).

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                                                             SXSKPLE 1
Implementation of G-J Town  Pretreatment  Program

After the POTW pretreatment program meets  all  requirements under
§403.9(b) and is approved by the  Approval  Authority, the G-J town
Joint Sewer Board's NPDES permits must be  modified to include
permit conditions for Industrial  pretreatment  program implemen-
tation.

A set of the special permit requirements has been drafted as follows;

     a.  The permittee has  been delegated  primary responsibility
         for enforcing against discharges  prohibited by 40 CFR
      .   .403.56.and applying and .enforcing any National. Pretreat-
         ment Standards established by the United States Environ-
         mental Protection  Agency in  accordance with"section
         307(b) and (c) of  the Act.

     b.  The permittee shall implement the G-J town Industrial
         Pretreatment Program in  accordance with the legal
         authorities, policies, and procedures described in the
         permittee's Pretreatment Program  document entitled,
         "Industrial Pretreatment Program, G-J town" (Date to be
   ••'•"•.   inserted).  .-.•-•• J>: *:-'.:•.••'••• ••;.••'-•  :. '-•••'•'.;••'••':•. •$'?..•..:••••••>. .••'•."'- .>-•-"••>••>•• ..•-••••••;-: -•:

     c.  The permittee shall provide  the State of Department of
         Environmental Conservation and  EPA with a semi-annual
         report describing  the permittee's pretreatment program
         activities over the previous calendar months in accordance
         with 40 CFR 403 ..12..  .     ,       .. .   ; .

     d.  Pretreatment standards  (40 CFR  403.5) prohibit the
         introduction of the following pollutants into the waste
         treatment system:  ..      .-.    .--...  ••.-.•'    -

         o  Pollutants which create a 'fire or  explosion hazard  in
            the -POTW,

         o  Pollutants which will cause  corrosive structural
            damage to the POTW, but in no  case, discharge with  a
            pH lower than 5.0,

         o  Solid or viscous pollutants  in amounts which will
            cause destruction to  the  flow  in sewers, or other
            interference with operation  of the POTWs.

         o  Any pollutant,  including  oxygen demanding pollutants
            (BOD5, etc.), released  in a  discharge at such a volume
            or strength as  to. cause interference in the POTW, and,.

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

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                            - 2 -
e.  In addition to the general limitations expressed in
    paragraph d above, applicable National Categorical
    Pretreatment Standards must be met by all industrial
    users of the POTW.

f.  USEPA and the permit issuing authority (DEC) retains the
    right to take legal action against the industrial user
    and/or the permittee for those cases where a permit
    violation has occurred because of the failure of an
    industrial user to meet an applicable pretreatment
    standard.

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                                                                             EXAMPLE 2
                           NATIONAL PRETREATMENT PROGRAM
                              MEMORANDUM OF AGREEMENT
                                   BETWEEN THE
                           CITY OF WESTMINSTER,  COLORADO
                                      AND THE
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION VIII
    The United States Environmental Protection Agency, Region VIII (hereinafter,
the "EPA") hereby approves the City of Westminster's (hereinafter, the "City")
'Pretreatment Program described in the City'-s November, 15, ,19.82 .submittal.
document entitled "Industrial Pretreatnent Program", as meeting the' requirements
of Section 307(b) and (c) of the Clean Water Act (hereinafter, the "Act") and
regulations promulgated thereunder.  Further, to define the responsibilities for
the establishment and enforcement of National Pretreatment Standards for
existing and new sources under Section 307 (b) and (c) of the Act, the City and
EPA hereby enter into the following agreement:

    1.   The City has primary responsibility for enforcing against discharges
         prohibited by 40 CFR 403.5, and applying and enforcing any National
    ' :    Pretreatment Standards established.by,.the.United States Environmental
         Protection Agency in accordance with Section 307(b)' and (c') 'of'the Act.

    2.   The City shall implement the Industrial Pretreatment Program in
         accordance with the legal authorities, policies, and procedures
         described in the permittee's Pretreatnent Program document entitled,
         "Industrial Pretreatment Program", November 1982.  Such program commits
         the City to do the following:             •    '

         a.   Carry out inspection, surveillance, and monitoring procedures that
              will determine, i ndependent. of information supplied by the incus-
 ..  ..'.       .. 'trial, user, whether the. industrial user is in compliance with the
              pretreatraent' standards; "  •  • ..-. •.-•••••••   .•••••  .  •  "    ...... . •  . .  •

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

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

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

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

    3.   The City shall provide the United States Environmental Protection
         Agency and the State of Colorado with an annual report briefly
         describing the City's pretreatment program activities over the previous
         calendar year.  Such report shall be submitted  no later than March 2£th
         of each year and shall include:

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

         b.   A descriptive summary of the compliance activities including
              number of major enforcement actions, (i.e., administrative orders,
              penalties, civil actions, etc.).

         c.   An assessment of the compliance status of the City's industrial
              users and the effectiveness of the City's pretreatnent program in
              meeting its needs and objectives.
        1 d.   A description of all substantive changes made to the permittee's
              pretreatment program description referenced in paragraph 2.
              Substantive changes include, but are not limited to, any change in
              any ordinance, major modification in the program's administrative
              structure or operating agreejnent(s), a significant reduction in
              monitoring, or a change in the method of funding the program.

    4.   Pretreatnent standards (40 CFR 403.5) prohibit the introduction of the
         following pollutants into the waste treatment system from any source of
         nondomestic discharge:...   ._..  ......,.•, ... .,, ..,-.....-  . ..;• ...•-..•,;,•.....;.•..,••,...,•. ,  .

         a.   Pollutants which create a fire or explosion hazard in the publicly
              owned treatment works (POTW);

         b.   Pollutants which will cause corrosive structural damage to the
              POTW, but in no case, discharges with a pH lower than 5.0;

         c.   Solid or viscous pollutants in amounts which will cause
       :       destruction to the flow in sewers,  or other interference with
              operation of the
     ;    d..'  Any poll utant,'. including -oxygen .demanding, pollutants .(BOD.sv
              etc.), released in a discharge at such a  volume or  strength as to
              cause interference in the POTW; and,

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

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

6.  The Agreement contained herein shall be incorporated, as soon as possible,
    in the City's NPDES permit.  Noncompliance with any of these  requirements
    shall be subject to the same enforcement procedures as any permit violation.

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

    Nothing in this Agreement shall be construed to limit the authority of the
U. S. EPA to take action pursuant to Sections 204, 208, 301,304, 306, 307, 308,
309, 311, 402, 404, 405, 501, or other Sections of the Clean Water Act of 1977
(33 USC 1251 et. sea).                                    '

   •This Agreement will become effective upon the final date of signature.


    City of Westminster, Colorado      U.S. Environmental Protection Agency
                                                     Region VIII
By	   By
Date                                  Date
    State of Colorado Department-of Health
        Water Quality Control Division
By_

Date

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                                                                            EXAMPLE 3
                                                           DRAFT COPY

                               ATTACHMENT 3                m^ JQ REy|S|()a

OTHER REQUIREMENTS


               APPROVED PRETREATMENT PROGRAM CONDITIONS


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

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

Part 403), the permittee's final  pretfeatment'program"appTicatibn as submitted

on	\	is hereby approved.   The  permittee, hereinafter

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

violations of categorical pretreatment standards  promulgated under

Section 307(b) and (c) of the Act and prohibitive  discharge standards  as set
   •*''•• • *'    •'•  ':v.'  '••."•    .'••  •'.•.-   '.  '.-••••         • •
forth in 40 CFR Part 403.5.  The Control Authority shall  implement the condi-

tions of the  Approved Pretreatment Program in the  following order:


A.  APPROVED  PRETREATMENT PROGRAM CONDITIONS

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

    2.   Maintain and update, as necessary,  records indentifying the nature,
      . character, and volume of pollutants contributed by industrial  users
        to the publicly owned treatment works (POTW).
        •
    3.   Enforce and obtain appropriate  remedies for non-compliance by  any
        industrial user with any applicable pretreatment  standard and  require-
        ment  as defined by Section 307(b) and (c)  of the  Act, Section  403.5,
        and any State or local requirement, whichever is  more stringent.

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

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    5.  Carry out inspection, surveillance,  and monitoring requirements
        which will determine, independent of information supplied by the
        industrial user, whether the industrial user is in compliance with
        the applicable pretreatment standards.

    6.  Comply with all confidentiality requirements set forth in 40 CFR  Part
        403.14 as well as the procedures established in the approved pretreat
        ment program.

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


B.  REPORTING REQUIREMENTS

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

    Permits Section or the State) a report on the	th

    of                          and the                 th of
    which describes the pretreatment program activities for the (previous

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

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


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

    2.  A descriptive summary of the compliance activities initiated, ongoing
    and completed against industrial users which shall include the number of
    major enforcement actions (i.e. administrative orders, show cause hearings,
    penalties, civil actions, fines, etc.) for the reporting period.
    •
    3.  A description of all substantive changes proposed for the Control
    Authority's program as described in Part III, Section A of this permit.
    All substantive changes must first be approved by (Agency Name) before
    formal adoption by the Control Authority.  Hereinafter, substantive
    changes shall include, but not be limited to, any change in the enabling
    legal authority to administer and enforce pretreatment program conditions
    and requirements, major modification in the program's administrative
    procedures or operating agreements(s), a significant reduction in monitoring
    procedures, a significant change in the financial/revenue system, or a
    significant change in the local limitations for toxicants enforced and
    applied to all affected industrial users of the sewage treatment works.

    4.  A listing of the industrial users who significantly violated applicable
    pretreatment standards and requirements, as defined by section 403.8(f)(2)
    (vii) of the General Pretreatment Regulations, for the reporting period.

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        5.   The sampling and analytical  results for the specified parameters as
        contained in Part III,  Section C of this permit.
        6.   (optional)  The Control  Authority shall submit to the (USEPA,  Region V,
        Permits Section and/or  State) by December 31  of each year, the names and
        address of the tanneries receiving the sulfide waiver pursuant to  the
        procedures and conditions established by 40 CFR 425.04(b) and  (c).   This
        report must identify any problems resulting from granting the  sulfide
        waiver as well as any new tanneries tributary to the sewerage  system for
        which the sulfide standards  may apply or any tannery receiving the sulfide
        waiver which no longer  is applicable.                    .
        7.   (optional)  The Control  Authority shall submit to the (USEPA,  Region V,
        Permits Section or State Permit  Section) by December 31  of each year, the
        name and address of each industrial user that has received a revised
        discharge limit in accordance with Section 403.7 (Removal Allowance
        Authority).  This report must comply with the signatory and certification
        requirements of Section 403.12 (1) and (m).
    C.   SAMPLING AND MONITORING REQUIREMENTS                         ....
        1.   The Control Authority shall  sample, analyze and monitor its influent,
        effluent and sludge in  accordance with the techniques prescribed in 40 CFR
        Part 136 and amendments thereto, in accordance with the specified  moni-
        toring frequency and schedule for the following parameters:
(1) Parameters                     Units    Frequency .   Sample Type... _ (2.) Permittee's
    Total Arsenic1 (As)   '
    Total Cadmium (Cd)
    Total Chromium (Cr,)
    Total Chromium (Cr)
    Total Copper (Cu)
    Total Cyanide (CN)
    Total Iron (Fe)
    Total Lead (Pb)
    Total Mercury (Hg)
    Total Nickel (Ni)

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                                          4

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

    Total  Phenols

    Jotal  Silver (Ag)

    Total  Zinc (Zn)

    Total  Kjeldahl  Nitrogen (TKN)

         (1)  Approval Authority should Include other parameters as needed.
         (2)  Note  whether sampling apply to permltte's influent, effluent and sludge.


    D.  SPECIAL CONDITIONS

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

        the Control Authority for the specified parameters:


    Parameters  .	   .   .            Mg/ 1             Pounds / Day

    Total  Cyanide (Cn)
    Total  Cadmium (Cd)
    Total  Chromium  (Cr, T)
    Total  Copper (Cu)
    Total  Iron (Fe)
    Total  Lead (Pb)
    Total  Mercury (Hg)
    Total  Nickel (Ni)
    Total  Silver (Ag)                                 .         ...
    Total  line .(Zn)      ••       •"  •••  .  •••••••---: .•;••"  •  -."•••  :•;';•"/•' v. •/'  ••.,",:.
   .(Others)           •       •           •     :     '  .

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

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

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

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                                                         Sample
    List Users          Parameter      Units     Frequency      Type       Notes
a.
b.
c".
(Others)
E.   RETAINER         .              .     .

The USEPA, Region V and the State retains the right to take legal action
against the industrial user and/or the Control Authority for those cases
where a permit  violation has occurred because of the failure of an industrial
user's compliance with applicable pretreatment standards and requirements.
                                                       s>
                                                            \

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                                                                          rjOMPLE
                                        PART  III

                                        Page  14

A.  OTHER REQUIREMENTS

    1.  Contributing  Industries and Pretreatment Requirements

        a.  The permittee shall operate an Industrial pretreatment program In
accordance with section 402(b)(8) of the Clean Water Act and the General
Pretreatment Regulations (40 CFR Part 403).  The program shall also be
implemented in accordance with the approved  POTW pretreatment program submitted
by the permittee which 1s hereby incorporated by reference.             •

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

        c.  The permittee shall, prepare annually a list of Industrial Users
which, during the past twelve months*.have significantly violated pretreatment
requirements.  This list is to be published  annually, 1n the largest newspaper
in the municipality, during the month of	, with the first
publication due	.

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

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

            2.  Compliance action taken by the City, and

            3.  Current compliance status.

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                                                                             EXAMPLE 5
STATE OF GEORGIA                                    ' PART  III
DEPARTMENT OF NATURAL RESOURCES
ENVIRONMENTAL PROTECTION DIVISION               • Page 12 of   13
                                                        Permit No.   GA0024449


A.  APPROVED INDUSTRIAL PRETREATMENT PROGRAM FOR PUBLICLY
   'OWNED TREATMENT WORKS (POTW)

    1.   The terms and conditions of the permittee's approved pretreatment
        program, approved by .the Environmental Protection Division (EPD)
        on  April 8,  1983                          , (as provided for in
        Chapter ^l-}-6-.0?(6DJ or.tne Rules ana Regulations for Water
        Quality Control), shall be enforceable through this permit.

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

    3.   Starting on  April 15,  1984                  the permittee shall
        submit annually to crO'a report to induce  rn'e lollowing information:
                        •                       «

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

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

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

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

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•STATE OF GEORGIA                                     PART  III
 DEPARTMENT OF NATURAL RESOURCES
 ENVIRONMENTAL PROTECTION DIVISION             .   Page 13 of  13
                                                        . Permit No.  GA0024449


 B.  INDUSTRIAL PRETREATMENT STANDARDS

     J:.   The permittee shall require all industrial dischargers into the permitted
         system to meet State and Federal Pretreatment Regulations promulgated
         in response to Section 307(b)  of the Federal Act. Other information may
         be needed regarding new industrial discharges and will be requested from
      "   the permittee" after EPD'has  received notice of the new industrial discharge.

     2.   A major contributing industry is one that:  (1) has a flow of 50,000 gallons
         or more per average work day; (2) has .a flow greater than .five percent of
         the flow carried by the municipal system receiving the waste; (3) has in
         its waste a  toxic pollutant in toxic amounts as defined in standards issued
         under Section 307(a) of the Federal Act; or (*) has significant impact,
         either singly or in combination with other contributing industries, on the
         treatment works-or the quality of its effluent, or interferes with disposal
         of its sewage sludge.                        '"•'•

     3.   Any change in the definition  of a major contributing industry as a result
. ,...: •-.    of promulgations in response  to Section 307 of theFederal Act shall  '
         become a part of this permit.


 C.  REQUIREMENTS FOR EFFLUENT LIMITATIONS ON POLLUTANTS ATTRIBUTABLE
     TO INDUSTRIAL USERS

     1.   Effluent limitations for the permittee's discharge are listed in Part 1 of
         this permit. Other pollutants attributable to'inputs from major contributing
         industries using the municipal system may also be present in the permittee's
         discharge.  At such, time as sufficient, information becomes-available to establish
         limitations  for such pollutants^ this permit may be revised to specify effluent
         limitations  for any or all of such other pollutants in accordance vJith best practi-
         cable technology or water quality standards.  Once the specific nature of indus-
         trial contributions has been identified, data collection and reporting requirements
         may be levied for other parameters in addition to those specified in Part I of this
         permit.

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

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

-------

-------
V-/EPA
          United States
          Environmental Protection;
          Agency
            Office of
            Water Enforcement
            and Permits
October 1983
Procedures Manual
for Reviewing a POTW
Pretreatment Program
Submission
                        Stream/Ocean

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                               TABLE  OF  CONTENTS


                                                                          Page

1.   INTRODUCTION	1-1

    1.1   PURPOSE OF THIS MANUAL	1-1

    1.2   HOW TO USE THIS MANUAL	1-2

    1.3   COMMENTING ON PROGRAM SUBMISSIONS  	   1-3


1.   LEGAL AUTHORITY	2-1

    2.1   SUBMISSION COMPLETENESS  ......  	   2-2

         2.1.1  Relevant Regulations	'.  .  .  .   2-2
         2.1.2  Evaluation of Completeness  	   2-2

    2.2   EVALUATION OF ATTORNEY'S STATEMENT	2-3

         2.2.1  Relevant Regulations  	   2-3
         2.2.2  Evaluation of Statement	2-4

    2.3   LEGAL.. ADEQUACY............ •».,..•;••  ••••;.....-. •::•>' • *•• ••• • .-•• •'•-. •<•-.>» ••/.; ••. ••.«.: • •'';  . : 2r5

         2.3.1  Relevant Regulations	2-5
         2.3.2  Evaluation of Adequacy	2-5

    2.4   MULTIJURISDICTIONAL SUBMISSIONS 	   2-13

    2.5   LEGAL AUTHORITY CHECKLIST  .  .................   2-14


1.   TECHNICAL INFORMATION	3-1

    3.1   INDUSTRIAL WASTE.SURVEY  ,  .  '.  .' .  ..' .  . . .. . •.".  . •..-.  ..  .  .   3-1 .

         3.1.1  Adequacy o'f the Survey Master  List	3-2
         3.1.2  Thoroughness of Survey Questionnaire . . .	3-3
         3.1.3  Response to Survey  .  .  . .  .  .  . . . . . ..	3-5
         3.1.4  Completeness of Summary  Information	3-5

    3.2   LOCAL EFFLUENT LIMITS '.,.......'............   3-6

         3.2.1  Identification of Past POTW Operating Problems  ....   3-7
         3.2.2  Sampling and Analysis to Determine Fate and Effect  .  .   3-8
         3.2.3  Development of Local  Effluent  Limits 	   3-10

         TECHNICAL INFORMATION CHECKLIST 	   3-12

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                            TABLE OF CONTENTS (cont)


                                                                          Page

4.  PROGRAM IMPLEMENTATION PROCEDURES	4-1

    4.1  UPDATE THE INDUSTRIAL WASTE SURVEY	4-1

    4.2  NOTIFY INDUSTRIAL USERS OF APPLICABLE STANDARDS
         AND REQUIREMENTS	4-2

    4.3  UNDERTAKE  COMPLIANCE MONITORING PROCEDURES	4-3

         4.3.1   Receive and Analyze Self-Monitoring Reports
                 and Other Notices	4-4
         4.3.2   Conduct Compliance Sampling and Analysis  .  .  .  .  .  .  .   4-5
         4.3.3   Investigate Noncompliance	4-7

    4.4  PUBLIC PARTICIPATION	4-9

         PROGRAM IMPLEMENTATION PROCEDURES CHECKLIST 	   4-12


5.  ORGANIZATION, STAFFING, EQUIPMENT,  AND FUNDING 	   5-1

    5.1 ... REJLEVANI, REGULATIONS..-. ..-.^:.., ,...,>-.\,- ,,.,,.'... ,.;.;*-:*••>••.••,> >'..:>.  . :  5-1-. •

    5.2  EVALUATION OF ORGANIZATION AND STAFFING  	   5-2

         5.2.1   Clear  and Appropriate Lines of Authority  	   5-3
         5.2.2   Identification of Staff Responsibilities  	   5-4.
         5.2.3   Staff  Qualifications .	5-5
         5.2.4   Staffing Levels	5-5
         5.2.5   Coordination with Other Departments	5-6

    5.3  EVALUATION OF EQUIPMENT	5-6

    5.4 .EVALUATION OF FUNDING'..-.•..-•..•... ... .  .. ..................  .. ;',...  :  . ;..5-ll

         5.4.1   Implementation Costs 	   5-12
         5.4.2   Financing Sources and Cost Recovery Systems.	5-15

         RESOURCES  CHECKLIST 	   5-18


APPENDIX A   BIBLIOGRAPHY OF PRETREATMENT REFERENCES	A-l

APPENDIX B   DEVELOPMENT OF DISCHARGE LIMITATIONS TO CONTROL
             INCOMPATIBLE POLLUTANTS	B-l

APPENDIX C   PRIORITY POLLUTANTS AND CATEGORICAL INDUSTRY  INFORMATION  .   C-l
                                       ii.

-------
                         LIST OF TABLES AND WORKSHEETS
WORKSHEET 1     LEGAL AUTHORITY .CHECKLIST. . 	  2-15

WORKSHEET 2     TECHNICAL INFORMATION CHECKLIST.	  3-12

WORKSHEET 3     PROGRAM IMPLEMENTATION PROCEDURES CHECKLIST	4-12

WORKSHEET 4     RESOURCES CHECKLIST	5-18

TABLE 5-1       POTW PRETREATMENT PROGRAM.PERSONNEL
                REQUIREMENT RANGES 	  5-7

TABLE 5-2       ESTIMATED POTW PERSONNEL REQUIREMENTS FOR A POTW
                PRETREATMENT PROGRAM BY PERSONNEL CATEGORIES ......  5-8

TABLE 5-3       ESTIMATED POTW PERSONNEL REQUIREMENTS FOR A POTW
                PRETREATMENT PROGRAM BY PROGRAM ACTIVITY 	  5-9

TABLE 5-4       TYPICAL EQUIPMENT FOR A TWO-MAN FIELD SAMPLING CREW. .  5-13

TABLE 5-5       TYPICAL COMMERCIAL LABORATORY COSTS	5-14

TABLE 5-6    "  FACTORS; AFFECTING POTW LEVELS' O/ EFFORT FOR"'       """"'"
                PRETREATMENT PROGRAM OPERATING TASKS 	  5-16

TABLE 5-7       HYPOTHETICAL POTW PRETREATMENT PROGRAM
                OPERATIONAL COSTS	 .  5-17
                                  iii

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

-------

-------
P/EPA
         United States
         Environmental Protection
         Agency
           Office of
           Water Enforcement
           and Permits
October 1983
Guidance Manual
for POTW Pretreatment
Program Development

-------
                              TABLE  OF  CONTENTS



                                                                  PAGE

 1.   INTRODUCTION	    1-1

     1.1  THE NATIONAL PRETREATMENT  PROGRAM	    1-1
     1.2  ELEMENTS OF A PRETREATMENT PROGRAM	    1-4
     1.3  ORGANIZATION OF THIS MANUAL	    1-6


 2.   INDUSTRIAL WASTE SURVEY	    2-1

     2.1  COMPILE A MASTER LIST OF INDUSTRIAL USERS	    2-1
     2.2  SURVEY INDUSTRIAL USERS	    2-2
     2.3  CONDUCT FOLLOW-UP ACTIVITIES	    2-5
     2.4  SUMMARIZE SURVEY RESULTS	    2-5

          2.4.1  Industrial Classification Scheme	    2-9
          2.4.2  Industrial Waste Survey Data Management	    2-10

    '2.5  IWS INFORMATION FOR THE PROGRAM SUBMISSION. .V.'...... /.;""  2-11


 3.   LEGAL AUTHORITY	*   3-1

     3.1  REQUIRED LEGAL AUTHORITIES	    3-1

          3.1.1  Deny or Condition	    3-2
          3.1.2  Compliance with Pretreatment Standards	    3-2
          3.1.3  Control Mechanism	    3-4
          3.1.4  Compliance Schedules/Reporting Requirements....    3-5
          3.1.5  Inspection, Sampling, and Monitoring.,.	••••    3-6.
          3.1.6  Legal Remedies....	    3-7
          3.1.7  Emergency Relief	    3-8
          3.1.8  Confidentiality....................	    3-8
          3.1.9  Multijurisdictional Issues;....................    3-9..

     3.2  ATTORNEY'S STATEMENT	    3-10
     3.3  LEGAL AUTHORITY INFORMATION REQUIRED FOR THE PROGRAM
          SUBMISSION.	    3-12


4.   TECHNICAL INFORMATION	   4-1

     4.1  BACKGROUND INFORMATION	   4-1
     4.2  PLANT PERFORMANCE AND INDUSTRIAL DATA	   4-2
     4.3  SAMPLING AND ANALYSIS TO DETERMINE FATE AND EFFECT....   4-3
     4.4  LIMITATIONS  ON POTW EFFLUENT AND SLUDGE	   4-5

          4.4.1  Water Quality Limitations	   4-5
          4.4.2  Sludge Limitation	   4-6

-------
                        TABLE OF  CONTENTS  (Continued)
                                                                    PAGE

     4.5  METHODOLOGY FOR DETERMINING  LOCAL DISCHARGE
          LIMITATIONS	   4-7

          4.5.1  Types of Standards	   4-9
          4.5.2  General Procedure  for Setting Local Limits	   4-10

     4.6  TECHNICAL INFORMATION  FOR THE PROGRAM
          SUBMISSION	   4-12
5.   DESIGN OF MONITORING PROGRAM	•	   5-1

     5.1  TYPES OF MONITORING	   5-1

          5.1.1  Scheduled Monitoring	   5-1
          5.1.2  Unscheduled Monitoring	   5-2
          5.1.3  Demand Monitoring  or  Investigative
                 Monitoring	   5-2
          5.1.4  Industrial Self-Monitoring	 5-3.
    .-..  •-. ••-.:•    •  '".   ;:'•."•'.••/ '  •;;' '•.-- •• '•" '••'-•. -:':. •••''•''•  '•':" • ''•'"•  ' '  ; •''••
     5.2  DETERMINATION OF MONITORING  FREQUENCY	   5-3
     5.3  FIELD MONITORING STRATEGY	   5-5

          5.3.1  Industrial Inspections	   5-5
          5.3.2  Sample Collection  and Handling	   5-7

     5.4  LABORATORY CONSIDERATIONS IN MONITORING	   5-9
     5.5  CHAIN-OF-CUSTODY PROCEDURES	   5-10
     5.6  ADMINISTRATION	   5-11
     5.7  COMPLIANCE MONITORING INFORMATION FOR THE
          PROGRAM SUBMISSION.....	   5-14


6.   PROGRAM IMPLEMENTATION PROCEDURES.	  .6-1

     6.1  UPDATE ' INDUSTRIAL-WASTE ''SURVEY.."..'.'..'.;..' ^'.'i'.:.........   6-1
     6.2  NOTIFY INDUSTRIAL USERS OF APPLICABLE STANDARDS AND
          REQUIREMENTS	   6-2
     6.3  REVIEW SELF-MONITORING REPORTS	;	   6-3
     6.4  INVESTIGATE NONCOMPLIANCE INCIDENTS	   6-6
     6.5  CONDUCT PUBLIC PARTICIPATION ACTIVITIES	   6-8
     6.6  IMPLEMENTATION PROCEDURES FOR  THE PROGRAM
          SUBMISSION	   6-9
                                      ii

-------
                         TABLE OF CONTENTS  (Continued)


                                                                   PAGE

;7.    PROGRAM ORGANIZATION,  COSTS,  AND  REVENUE  SOURCES	    7-1

      7.1   ORGANIZATION  AND  STAFFING	    7-1

           7.1.1   Organization Chart	    7-2
           7.1.2   Considerations  in Staffing  and  Organizing  the
                  Pretreatment Program	.	    7-2

      7.2   PROGRAM COSTS AND FUNDING  MECHANISMS	    7-6

           7.2.1   Estimating Program  Costs....	1    7-6
           7.2.2   Financing  Sources and Cost  Recovery Systems....    7-15

      7.3   INFORMATION ON RESOURCES REQUIRED  FOR  THE  PROGRAM
           SUBMISSION	    7-29


 8.    APPROVAL AND IMPLEMENTATION	    8-1

      8.1   APPROVAL	    8-1

           8.1.1   Approval Procedures for a Final Pretreatment
                  Prog ram	    8-2
           8.1.2   Special  Cases	    8-3

      8.2   IMPLEMENTATION	    8-4

           8.2.1   Ongoing  Activities	    8-5
           8.2.2   Program Effectiveness	    8-5
           8.2.3   Oversight.................		    8-7
                                  APPENDICES   .  ..  .  .   .

APPENDIX A    Pretreatment  Information  Contacts

APPENDIX B    Bibliography  of  Pretreatment References

APPENDIX C    General Pretreatment  Regulations for Existing  and  New Sources
              and Amendments

APPENDIX D    Priority  Pollutants and Categorical Industry Information

APPENDIX E    Sample Pretreatment Compliance  Schedule

APPENDIX F    Blank Worksheets
                                      iii

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APPENDIX G    Checklist for Pretreatment Program Submission

APPENDIX H    Sample Industrial Waste Survey Questionnaire

APPENDIX I    EPA Model Ordinance

APPENDIX J    Sample Sewer Use Permit

APPENDIX K.    Sample Attorney's Statement

APPENDIX L    Development of Discharge Limits to Control Incompatible
              Pollutants

APPENDIX M    Sample Collection and Preservation Procedures
                                     iv

-------
                          LIST OF TABLES AND FIGURES


 Table

  1.1   Industries Subject to Categorical Pretreatment
        Standards	  1-5

  2.1   Industrial Waste Survey Results	  2-6

  2.2   Industries Eliminated from Further Survey Efforts	  2-7

  2.3   Industrial Users Discharging Nondomestic Waste	  2-8

  4.1   Determining Need for Local Limitations	  4-8

  5.1   Sampling Record	  5-12

  5.2   Monitoring Results Report Form	  5-13

  7.1   Factors Affecting POTW Levels of Effort for Pretreatraent
        Program Operating Tasks	  7-7

  7.2   POTW Pretreatment Program Personnel Requirement Ranges....  7-8

  7.3   Estimated POTW Personnel Requirements for a POTW
        Pretreatment Program by Program Activity	  7-9

  7.4   Typical Equipment for a Two-Person Field Sampling Crew....  7-12

  7.5   Typical Commercial Laboratory Costs	  7-13

  7.6   Worksheet for Calculating Annual Operating Costs	  7-16

  7.7   Pretreatment Program Financing Options.....:...;.	  7-17

  7.8   Cost Recovery Options	  7-23

•'•'• 7.9  'Rate Calculation Worksheet for Service' Model'.;'..'; ..*.';.....  7-25'

  7.10  Rate Calculation Worksheet for Industry Surcharge
        Model	  7-27

  7.11  Rate Calculation Worksheet for Pollutant Strength Model...  7-30


 Figure

  6.1   Review Process for Industrial Self-Monitoring Reports	  6-5

  7.1   Worksheet for Developing an Organization Plan	  7-3

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

-------
•Via

-------
United States
Environmental Protection
Agency
Effluent Guidelines Division
and Permits Division
Washington, DC 20460
                          February 1984
Wate
Guidanca Manual
for Electroplating
and MstaA Finishing
Pr&treatment Standards

-------
                            TABLE OF CONTENTS


                                                                      PAGE

   . :• -ircTTON	     1-1

     :•! [STORY OF  THE  ELECTROPLATING AND METAL  FINISHING
     ..lATECORICAL PRETREATMENT STANDARDS	     1-2


 ' KOTROPLATING CATEGORICAL PRETREATMENT STANDARDS	     2-1

 . !   \'.-TKCTED INDUSTRY	     2-1
 ..:  EXCEPTIONS  FROM REGULATION COVERAGE	:	     2-3
 ,.:  PRF.TREATMENT STANDARDS FOR THE ELECTROPLATING CATEGORY....     2-4
 . .  POLLUTANTS  EXCLUDED FROM REGULATION	     2-7
 ' . i  COMPLIANCE  DATES	     2-7


"".TAL FINISHING  CATEGORICAL PRETREATMENT STANDARDS	     3-1

 •.;   AFFECTED INDUSTRY	     3-1
     EXCEPTIONS  FROM REGULATION COVERAGE	     3-1
     PRETREATMENT STANDARDS FOR METAL FINISHING CATEGORY	...     3-14
     POLLUTANTS  EXCLUDED FROM REGULATION	     3-16
     COMPLIANCE  DATES	     3-19
 .->  ALTERNATIVE CYANIDE LIMITATION	     3-19


  .'•ATMENT TECHNOLOGIES....	.V.	•	;    4-1

 ••i   TREATMENT OF COMMON METALS WASTES	     4-1
 •. 2  TREATMENT OF COMPLEXED METAL WASTES	     4-3
 ••3  TREATMENT OF PRECIOUS METALS WASTES	     4-3
•.-.-«  TREATMENT OF HEXAVALENT CHROMIUM.....,.. ............ .......... .   ..4-4
 •••3  TREATMENT OF CYANIDE WASTES	 .. '.	    ' 4-4
 • • ''•>  TREATMENT OF OILY WASTES	     4-5
-.7  IN-PLANT CONTROL OF TOXIC ORGANICS . ...,	.;............     4-5
••'-.- B. . .TREATMENT. OF--SLUDGES*. .>.: .......V-; .^- .'.* -.'...:.-..-...-.*>•;.., .-.'.;;:.'.> •.>>-.-..•.: •   .- *--6  -
 '•9  IN-PROCESS  CONTROL TECHNOLOGIES	'...	     4-6.


KKQUIREMENTS OF  THE  GENERAL PRETREATMENT REGULATIONS	     5-1

''•I   INTRODUCTION	     5-1
^•2  CATEGORY DETERMINATION REQUEST	     5-2

-------
                               TABLE OF CONTENTS
                                                                       PAGE

    5.3  MONITORING AND REPORTING REQUIREMENTS OF THE GENERAL
         PRETREATMENT REGULATIONS	    5-2

         5.3.1  Baseline Monitoring Reports	    5-2
         5.3.2  Report on Compliance	    5-5
         5.3.3  Periodic Reports on Continued Compliance	    5-6
         5.3.4  Notice of Slug Loading	    5-6
         5.3.5  Monitoring and Analysis to Demonstrate
                Continued Compliance	    5-6
         5.3.6  Signatory Requirements for Industrial
                User Reports	    5-7
         5.3.7  Recordkeeping Requirements	    5-7

    5.4  SPECIAL INDUSTRIAL SELF-MONITORING CONSIDERATIONS	    5-7

         5.4.1  Toxic Organics Certification	    5-7
         5.4.2  Self-Monitoring for Cyanide	'	    5-9

    5.5  APPLICATION OF THE COMBINED WASTESTREAM FORMULA	    5-9
    5.6  REMOVAL CREDITS	    5-12
    5.7  FUNDAMENTALLY DIFFERENT FACTORS VARIANCE	    5-21
    5.8  LOCAL LIMITS	    5-22
REFERENCES	    R-l

-------
                          LIST OF TABLES AND FIGURES



Table                                                                  Page

1.1   Breakdown of the Electroplating/Metal Finishing Industry	    1-3

2.1   Pretreatment Standards for Existing Sources -
      Electroplating Category	    2-5

2.2   Compliance Dates for Electroplating Pretreatment Standards...    2-7

3.1   Metal Finishing Category Unit Operations	    3-2

3.2   Potential Wastewater Pollutants Generated by Metal
      Finishing Category Unit Operations	    3-12

3.3   Pretreatraent Standards for the Metal Finishing Category	    3-17

3.4   Long Term Concentration Averages	    3-18

3.5   Compliance Dates for Metal Finishing Pretreatment
      Standards	    3-20

5.1   Due Dates for Submission of Baseline Monitoring Reports	    5-4

5.2   Combined Wastestream Formulas	    5-13

5.3   Combined Wastestream Formula Example Calculation	    5-14

5.4   Combined Wastestream Formula Example Calculation	    5-15
Figure

3.1   Schematic Showing Example of Overlap Coverage of
      Categorical Standards at Integrated Facilities	    3-15

4.1   Wastewater Treatment Schematic......„	    4-2

-------
                                                                 VLB.8,
"Implementation of Pretreatment Standards While Litigation Continues",
dated May 2, 1984.

-------

-------
         UNITED STATES ENVIR6NMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                         m   2
OFFICE OF
 WATER
MEMORANDUM
SUBJECT:   Implementation of Pretreatment Standards
           While Litigation Continues

FROM:      James D. Gallup, Chief L/>
           NPDES Programs Branch

TO:        Regional Pretreatment Coordinators
           Regions I - X


     Individual indirect dischargers have requested stays of
certain categorical pretreatment standards.  To date, none of
these stays have been granted either by a U.S. Circuit Court
or by the Agency.  Until such time as a stay is granted, all
promulgated categorical pretreatment standards and all reporting
requirements under the General Pretreatment Regulations are in
effect.

     I have attached a copy of memorandum from the Office of
General Counsel to the Director, Office of Water:Enforcement and
Permits which affirms this position.  If you have any questions,
please contact me at (FTS)755-0750.
Attachment

-------
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, D.C. 20460
                                c
                                5


                                                         OFFICE OF
MEMORANDUM
                                                      ««**.. COUN«L
SUBJECT:  Implementation of Pretreatment Standards
          While Litigation Continues

FROM:     Susan Lepow               Q  ,<. .r-<
          Assistant General Counsel 7^'- '
          Water Division (LE-132W)
    i
TO:       Rebecca Hanraer
          Director
          Office of Water Enforcement and Permits (EN-335)

     As -the attached letters indicate, at least one indirect
discharger has refused to provide a baseline monitoring report
on the grounds. that the underlying pretreatment standard is  •
the subject of litigation.  That refusal, in the absence of a
judicial or administrative stay of the regulations is not
justified.

     We have responded to the specific inquiry we received,
and have notified the Fourth Circuit of this particular
matter.  However, it is possible that this problem is
occurring in other cases as well.  You may wish to provide
guidance to the States and Regions making clear that although
there has been substantial litigation on the recently
promulgated effluent limitations guidelines and standards, */
no judicial or administrative stay have been granted.

     As is clear from the attachments, a motion for a
judicial stay of the metal finishing standards is pending
in the Fourth Circuit.  In addition^ Gerro Copper ".-Products
*/  The Agency has reached settlement agreements on the
    effluent limitations guidelines and standards for the
following industries: iron and steel; porcelain enameling;
coal mining; petroleum refining; and steam electric.  In
addition, litigation is pending on the regulations for the
following industries:  leather tanning and finishing;
aluminium forming; copper forming; nonferrous metals manu-
facturing (phase I); metal finishing; electronics (phase II);
can making.  Not all of these settlement agreements and
lawsuits concern the categorical pretreatment standards.

-------
                           - 2 -

and the Village of Sauget have requested the Agency to
stay the copper forming pretreatment standards as they
apply to them.  Until any of these stays are granted, the
promulgated regulations, including the pretreatment require-
ments and the requirement to submit baseline monitoring
reports, are in effect.
Attachments
cc:  Martha Prothro
     Bob Zeller
     Louise Jacobs
     Steve Schatzow

-------
                                     CATERPILLAR TRACTOR CO.
                                        w MOM
                                                 $3201
                                     T*iegnon« 414 744.3333
                                     March  28,  1984            MAR 2 9 1934
                                                                   UUSO
                                                               IN3VSTRW. WASTE


 Mr.  John L. Schultz
 Milwaukee Metropolitan Sewerage District
 Industrial Waste Section
 735  North Water Street
 Milwaukee, WI  53202

 Dear Mr.  Schultz:

 We have  received your letter of March 6, 1984, concerning  EPA categori-
 cal  pret reatroer.t standards for the electroplating  and metal  finishing
 point  source categories.  We have also reviewed  the materials previous-
 ly sent  to us on January 9, 1984, concerning the applicability .of  these
 regulations "to' the operations of the Milwaukee Plant.

 In a telephone conversation with Mr. Terry Yakich  of your  agency on
 March  21,  1934,  we explained that the reason we  did not  respond to your
 request  for basel ine' monitoring reports is that  Caterpillar  Tractor  Co.
 filed  a  petition for review of these regulations in the  U. S. Court  of
 Appeals  for the  Seventh Circuit on .October 26, 1983.  The  case was then
 transferred to the U. S. Court of Appeals for the  Fourth Circuit and
 consolidated with  certain other cases challenging  the saoe regulations.
 On February 28,  1984, Caterpillar filed a motion to stay the  applica-
 tion of  the regulations to its various, facil it ies ,  and this, mot ion is
 presently  under  -consideration .by the Court...     •      .  ./

•Since  application  of the electroplating and metal  finishing  regulations
 to Caterpillar's facilities is in litigation and the subject  of pending
 eotions, we believe -it  is ;not 'appropriate to. respond to your .request  .
 for  baseline monitoring reports at  this time.   We  trust  that  this  is
 fully  responsive to your inquiry.

                                     Sincerely,
                                     Plant Manager
RF.Gallagher
Telephone:   (414)  747-4201
dk

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. D.C. 20460


                            APR19B84

 *~                                                        OFFICE or
 Mr. William K.  Slate,  II                               G«N«I»AL COUNSEL
 Clerk, United States Court
 of Appeals for the Fourth  Circuit
 U.S. Courthouse
 10th & Main Streets
 Richmond, VA  23219

    Re:  Caterpillar Tractor Co. v. EPA and Related Cases
         Nos. 83-1930(L), Nos. 83-19$T7 83-2162(L), 83-2127,
         83,4197, Consolidated sub nom, IIPEC v. EPA.

 Dear Mr. Slate:

     We would appreciate  your bringing the enclosed letter  to
 the attention of the panel  considering EPA1s pending motion for
 transfer of these cases,  and Caterpillar Tractor Company's
 pending motion .to stay the  underlying pollution control regula-  .
 tions.  The letter, dated March 28, 1984, is from  petitioner
 Caterpillar Tractor to the  Industrial Waste Section of Milwaukee's
 Metropolitan Sewerage  District.  EPA received a copy of the
 letter on April  17, 1984, courtesy of the Wisconsin Department
 of Natural Resources.

     In the letter Caterpillar tells the sewerage  authority that
 it refuses to provide  it with a baseline monitoring report des-
 cribing the toxic pollutants present in its industrial waste-
water.  Caterpillar justifies its refusal by reference to this
 litigation and  to its  pending motion for a stay.   In essence,
however, Caterpillar is acting as though its petition for a
 stay had already been  granted by this Court.  It has informed
neither this Court, nor the parties to this litigation, of  its
action.

     Caterpillar's unilateral action demonstrates  the need
for a prompt resolution of  the stay questions; EPA1s memorandum
 of March 14, 1984 In Opposition to Caterpillar's Motion for
 a Stay illustrates why Caterpillar's motion should be denied.

     Caterpillar's letter also asserts that the "application of
 the electroplating ... regulations to Caterpillar's facilities
 is in litigation... ."  Enclosed letter at Para. 3.  This
 assertion flatly ignores  the Third Circuit's recent ruling
 specifically upholding the  40 C.F.R. Part 413 pretreatraent
 standards for the electroplating industry.   NAMF  et al. v.
 EPA, 719 F.2d 624 (3d  Cir.  1983).  However, Caterpillar's

-------
                                                                  VLB.9.
"Guidance Manual for Pulp, Paper, and Paperboard and Builder's Paper and
Board Mills Pretreatment Standards", dated July 1984.  Table of Contents
only.

-------

-------
United States
Environmental Protection
Agency
Effluent Guidelines Division
WH-552
Washington DC 20460
                      July 1984
Water
Guidance Manual
for Pulp, Paper,
and Paperboard and
Builders' Paper and
Board Mills Pretreatment
Standards

-------
                               TABLE OF CONTENTS


Chapter                                                                Page

1.   INTRODUCTION	     1-1

    1.1  HISTORY OF THE PULP,  PAPER AND PAPERBOARD AND BUILDERS'
         PAPER AND BOARD MILLS EFFLUENT LIMITATIONS GUIDELINES AND
         STANDARDS	     1-2

2.   PULP,  PAPER AND PAPERBOARD CATEGORICAL PRETREATMENT
    STANDARDS..........	     2-1

    2.1  AFFECTED INDUSTRY..............		     2-1
    2.2  PRETREATMENT STANDARDS FOR THE PULP,  PAPER,
         AND PAPERBOARD INDUSTRY 	     2-5
    2.3  EXCEPTIONS FROM REGULATION COVERAGE:   PCP/TCP/ZINC
         CERTIFICATION	     2-10
    2.4  POLLUTANTS EXCLUDED FROM REGULATION	     2-11
    2.5  COMPLIANCE DATES	     2-11

3.   TREATMENT TECHNOLOGIES	     3-1

    3.1  LIME PRECIPITATION	     3-1
    3.2 -CHEMICAL SUBSTITUTION	     3-1

-i.   REQUIREMENTS OF THE GENERAL PRETREATMENT REGULATIONS	     4-1

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

         4.3.1   Baseline Monitoring Reports....	     4-2
         4.3;2   BMR Reporting of PCP/TCP/Zinc.... *	*..........-.•.  4-3
         4.3.3   BMR Due Dates	     4-3
         4.3.4   BMR Content	     4-3
         4.3.5   Report on Compliance...	     4-4
         4.3.6   Periodic .Reports on'Continued Compliance...........     4-5
         4.3.7   Notice of Slug Loading.....	     4-5
         4.3.8   Monitoring and Analysis to Demonstrate   •
                 Continued Compliance.	     4-5
         4.3.9   Signatory Requirements for Industrial
                 User Reports	•	     4-6
         4.3.10  Recordkeeping Requirements	     4-6

    4.4  APPLICATION OF THE COMBINED WASTESTREAM FORMULA	     4-6
    4.5  REMOVAL CREDITS	     4-8
    4.6  FUNDAMENTALLY DIFFERENT FACTORS VARIANCE	     4-16
    4.7  LOCAL LIMITS	     4-16

REFERENCES	     R-l

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                                                                  VLB.10.
"Guidance to POTWs for Enforcement of Categorical Standards", dated
November 5, 1984.

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  ^, \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

l^J^/                     WASHINGTON. D.C. 20460
 r&\ ^^^^^^^^^ *y
      5 1984                                                OFFICE OF
    i-                                                        WATER


   MEMORANDUM


   SUBJECT:C  Guidance to POTWs for Enforcement of Categorical Standards

   FROM:      Rebecca W.  Hanmer, Director
             Offj.ce of Water Enforcement arid Permits (EN-335)
              £.
              Lenn CJnterberger, Acting
             Associate Enforcement Counsel for Water (LE-134W)

   TO:        Regional Water Management Division Directors
              Regions I-X
             State Program Directors

        Attached is a copy of the Pretreatment Program Guidance to
   POTWs for, Enforcement of Industrial Categorical,Standards.  The.    .
   Guidance  is now final.  It is important to provide enforcement
   guidance  to managers of POTWs because the compliance deadlines for
   electroplaters have recently passed.

        The  purpose of this guidance is to advise POTWs with approved
   pretreatment programs of their authorities and responsibilities for
   enforcing categorical pretreatment standards.   Specifically, it
   sets  forth what EPA considers as appropriate responses to industrial
   users who fail to comply with categorical standards by the required
   deadlines.  On that basis, it also serves as guidance for the EPA
   enforcement activities relating to categorical standard violations.

        This guidance was developed with the assistance of the Regional
   Offices,  several State representatives, PIRT task force members
   and POTWs as well as the Office of General Counsel (OGC).

        As part of each POTW's responsibility to enforce categorical
   standards, there is a regulatory requirement to obtain 90 Day
   Compliance Reports.  To assist POTWs in obtaining this information,
   we have enclosed a model letter to be sent by POTWs to each industrial
   user.

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460

                         November  1,  1984
                                                      OFFICE OF
                                                       WATER
          Pretreatment Program Guidance to POTWs for
       Enforcement of Industrial Categorical Standards
Purpose

     The purpose of this document is to provide; guidance to;   £ --
publicly owned treatment works (POTWs) on the enforcement of
industrial categorical pretreatment standards.  Under- the Clean
Water Act and the National Pretreatment Program Regulations, 40
CFR 403, POTWs with approved local pretreatment programs
are typically the primary enforcement authorities for industrial
categorical standards^/.


Application
     Section '307(b) of the Clean Water Act requires the Environmental
Protection Agency to promulgate pretreatment standards to prevent
the introduction of pollutants into POTWs which are determined not
to be susceptible to treatment by such POTWs, which would interfere
with the operation of such POTWs, or would limit opportunities to
recycle and reclaim municipal sludges.  EPA has been under court
order to establish pretreatment standards for 26 specific industrial
categories determined to be the most significant sources of toxic
pollutants.  These categorical standards contain numerical limits
for pollutants commonly introduced into POTWs by the covered
industries.  Attached is the list of categorical standards which
have been promulgated since 1981 and those which were recently
proposed to be promulgated (see Attachment 1).


Notification and. Industrial Reporting: ,. ,; . .  :    •  .        ...

     Based on its industrial waste survey, each approved POTW
should have a list of all industrial users which discharge into the
POTW and the industrial categories to which they belong.  POTWs
are required to notify categorical industries about their responsi-
bility to comply with appropriate categorical standards.  Each
industrial user is required to submit a baseline monitoring report
\J In some instances States have chosen to administer the pretreatment
program directly with limited or no assistance from local POTWs.

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                                -2-
 (BMR)  by  a  specified  deadline  (see Attachment  1) which  indicates
 whether it  meets  the  categorical standard(s) at the  time of
 submission.  Although POTWs  are encouraged  to  notify industrial
 users  of  the baseline monitoring requirement,  industrial users
 must comply with  this requirement even  if they do  not receive
 a  POTW notification.   Where  an industrial user's baseline
 monitoring  report indicates  noncompliance with the standards,  it
 must establish  in its baseline monitoring report a schedule  of
 activities  that will  result  in compliance with the standard  by
 the compliance  deadline.  Categorical  industrial users are  required
 to submit additional  reports within  regulatory timeframes.   (See
.Attachment  2 for  specific regulatory  reporting, requirements.) ,. .
 Industrial  users  which fail  to submit required reports  or who
 submit inadequate reports are  subject to enforcement action  by
 EPA, the  State  (if approved),  or the  POTW (if  approved).


 Compliance  Deadlines

     For  each categorical pretreatment  standard, the Clean Water
 Act requires EPA  to set  a deadline for  compliance  no later than
 three  years after the effective date  of the standard.   In most ,.      .
 cases, EPA  provides industry with three years  "to comply*   (See  '
 Attachment  1 for  the  compliance dates established  in the categorical
 pretreatment standards.)   An industrial user which fails to  meet
 the categorical pretreatment standard by the deadline is in
 violation of the  Clean Water Act.  Each approved POTW has  the
 primary responsibility for enforcing  the standards and  bringing
 each violator of  the  regulatory deadline in the POTW's  service
 area into compliance  as  rapidly as possible.   The  following
 guidance  is intended  to  address instances of noncompliance
 with regulatory deadlines of categorical standards.


 Enforcement             '   .                                ......
      Timely  compliance with  categorical pretreatment  standards
is  an essential  requirement.of  the  Clean Water..Act.   Therefore,
where an  industrial user has  failed to comply  with the  deadline
specified in an  applicable categorical pretreatment standard, the
POTW  should  take  an enforcement  action to obtain  compliance,
to  deter  future  violations of  the law by the violator,  and* to
promote fairness  among members  of the regulated community.  The
enforcement  action may take  the  form of a judicial action  or, in
appropriate  circumstances, an  alternative procedure as  discussed
below.  Following are three  recommended procedures for  different
instances  of  industrial user  noncompliance:

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                                -3-
      1.   If  the  industrial user  in  violation has not demonstrated
 good  faith and could  have met  the regulatory deadline by  a prompt
 and conscientious  effort/ the  POTW  should file a judicial
 action and seek  (by court decision  or  consent decree) an  expeditious
 .compliance schedule and an appropriate penalty.£/  The penalty
•"should be sufficient  to deprive  the industrial User of any economic
 benefit or competitive advantage derived from delayed compliance.
 The amount should  also reflect the  seriousness of the violation,
 the lack  of  diligence demonstrated  by  the violator, and any other
 relevant  circumstances.  POTWs that have the authority to
 administratively assess penalties and mandate compliance  schedules
 may do so in lieu  of  judicial  action.

      2.  If the industrial user has made a good faith effort to
 comply with  the  standard, but  will  miss the deadline by more than
 90 days,  the POTW  should bring the  industrial user into compliance
 through judicial or administrative  enforcement procedures.
 Regardless of the  procedure used, this action should include a
 written document issued to the industrial user which contains an
 enforceable  schedule  for achieving  compliance.  Violators should
 be allowed no more time than is  absolutely necessary to achieve
 compliance.  Also, the enforcement  action should seek monetary
 penalties for. failure .to ;co.mply.. , If the /POTW .does .not, have the  .  . ...
 authority to impose penalties  administratively, it should seek
 penalties through  judicial enforcement action.

      3.   If  the  industrial user has made a good faith effort to
 comply with  the  standard by the  legal  deadline and failed by a
 period of 90 days  or  less, the POTW should either take enforcement
 action or closely  monitor the  progress of the industrial  user
 towards achieving  compliance.

      Good faith  is to be narrowly construed.  The legislative
 history of the Clean Water Act Amendments of 1977 described "good.
 faith" as follows:                      .           .
 2/ A POTW is required to have authority to file a judicial action
 ~~  and seek penalties as a  condition for program approval.  A
    POTW may also have authority to:  issue an administrative
    compliance order  (with or without the consent of the  industrial
    user); impose administrative penalties (authorized by ordinance,
    contract, permit, or compliance  order); or revoke an  industrial
    user's right to discharge into the sewer.  A POTW should
    consult  its attorney to  determine existing administrative
    authorities.

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                               -4-
         The Act requires  industry  to  take  extraordinary
         efforts if the vital and ambitious goals  of
         the Congress are  to be met.   This  means that
         business-as-usual  is not enough.   Prompt,
         vigorous, and in many cases expensive pollution
         control measures must be initiated and
         completed as promptly as possible.
         In assessing the good faith of  a discharger,
         the discharger is  to be judged  against
         these criteria.  Moreover, it is an established
         principle, which  applies to this act,  that
         administrative and.;Judicial..r.eview,;.a.re..iK,,,,..:v;..•_>,  •, •.?.._.:...-... .. ...
         sought on a discharger's own  time.  Legislative
         History of the Clean Water Act  No. 95-14,
         Vol. 3 at 463.

     For information on how this good  faith test applies
specifically to electroplating facilities,  please  see Attachment 3

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Footnotes:

(1)  No nunerical pretreatment limits have been established for the Textile Mills industrial category, and there is
     no final compliance date for categorical pretreatment standards.  Firms in this industry are required to comply
     only with the General Pretreatment Regulations in 40 CFR 403.  Local authorities should specify case-by-case
     reporting for these industrial users.

(2) ' Industries regulated by the Metal Finshing categorical pVetreatroent standards are included in the 10,500
     indirect dischargers estimated for the Electroplating category.

(3)  Existing sources that are subject to the Metal Finshing standards in 40 CFR Part 433 must comply only with the
     interim limit for Total Toxic" Organics (TTO) by June 30, 1984.  Plants also covered by 40 CFR Part 420 must
     comply with the interim TTO limit by July 10, 1985.  The compliance date for Metals, Cyanide, and final TTO
     is February 15, 1986 for all sources.
(4)  The compliance date for existing Phase I Electrical and Electronic Components manufacturers for TTO is
     July 1, 1984.  The compliance date for arsenic is November 8, 19ft5.

(5)  Industries regulated under the Phase II Electrical and Electronic Components categorical pretreatment
     standards are included in the 240 indirect dischargers estimated for Phase I.

(6)  Industries regulated under the Canmaking subcategory of the Coil Coating Categorical standards are included
     in the 32 indirect dischargers estimated for the Coil Coating Category.

(7)  Industries regulated under the Phase II Inorganic Chemicals categorical standards are included in the U>
     Indirect dischargers estimated for Phase I.

(8)  Industries regulated under the Phase II Nonferrous Metals Categorical standards are included in the
     indirect dischargers estimated Phase I.

(9)  Subpart B only

(10) Subpart C only

(11) These regulations reaffirmed the pretreocnent standards that were previously promulgated and become effective
     in the mid 1970's.             .              •.'......     .  .        •
[This table is intended to provide POTWs with general information concerning each major industrial category.  A

more detailed account of each category can be obtained through the Code of Federal Regulations.]

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                                                                                                  ATTACHMENT  1





                                                                                                Revised 8/08/84
                   SUMMARY STATUS OF NATIONAL CATEGORICAL PRETREATMENT STANDARDS:  MILESTONE DATES
Estimated
Number •
Of Indirect
Industry Category Discharoers
Timber ^Products 47
Electroplating 10,
Textile Hills
Metal Finishing
Pulp, Paper, Paperboard
Steam Electric
Electrical Components I
Iron and Steel
Inorganic Chemicals I
Leather Tanning
•orcelain Enameling
Petroleum Refining
Coil Coating I
Electrical Components II
Copper Forming
Aluminum Forming
Pharmaceuticals
Coil Coating (canmaking)
Battery Manufacturing
..Nonferrous Metals I
Organic Chemicals
. Pesticides
Metal Molding and
Casting (Foundries)
Inorganic Chemicals II
Nonferrous Metals Forming
Ponferrous Metals II
500
930
—2
261
85
242
162
21
140
88
53
39
—5
23
60
72
277
—6
81
131
85
468
38
327
—7
23
107
37
Promulgation
Date
—11
1-26-81
1-28-81
9-02-82
7-15-83
.... ... •• 	 : . .-.•••: . *.•!•.;
11-18-82
11-19-82
4-08-83
5-27-82
6-29-82
11-23-82
11-24-82
—11
10-18-82
12-1-82
12-14-83
8-15-83
10-24-83,
10-27-83
11-17-83
3/9/84
3/8/84
(2/85)
(11/84)
(12/84)
7/26/84
(10/84)
(11/84)
Effective
Date
3-11-81
BMR Due Date

PSES*
Compliance
Date

3-30-81 '9-26-81 (Non-integ.) 4-27-84(Non-Integ.)
6-25-83 (Integrated) 6-30-84 (Integrated)
10-18-82
8-29-82
1-3-83
1-2-83
5-19-83
7-10-82
8-12-82
1-06-83
1-07-83
12-01-82
1-17-83
1-27-84
9-26-83
12-7-83 .
12-12-83
1-2-84
4/18/84
4/23/84
(4/85)
(2/84)
(2/85)
(9/84)
(12/84)
(1/85)
i
2-25-83 —3
6-30-84 (Part 433, TTO)
... .. :....,. 7-10-85 
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                                          CATEGORICAL PRETREATMENT  STANDARDS:

                                          REPORTING REQUIREMENTS AND DUE DATES
                Item Due
     Report Due Date
           Description of Report
 1.  Baseline Monitoring Reports  (BMR)
Due 180 days after the
categorical standard
effective date.
                                            * Nonintegrated 9/12/81
                                            Integrated 6/25/83
 Initial process description and a statement
 certifying compliance or non-compliance with
 the standards.  A compliance schedule required
 from noncomplying facilities.  See 40 CFR 403.
 12 (b).           ••
 2. Periodic Progress Report
Within 14 days of each
milestone date in the
conpliance schedule
submitted with the BMR.
 Noncomplying facilities are required to
 submit a compliance schedule for achieving
 conpliance by the final conpliance date.
 Progress reports indicate whether or not action
 items were completed on time, and if not, steps
 taken to cone back;, into conpliance.
 3. 90-Day Compliance Status Report
Within 90 days following
the date for final conpli-
ance with the applicable
Pretreatment Standard(s).
                                            *Nonintegrated 7-27-8*
                                            Integrated 9-30-84
All facilities, regardless of conpliance status,
must file this report certifying whether conpliance
with the standards was achieved and, if not, steps
being taken to coma into conpliance.  See 40 CFR
403.12(d).         i
4. Self-Monitoring (Semi-Annual) Reports
June and December of each-
year, or more frequently
This report indicates the continued compliance
of the facility with the standards.  It must be
submitted biannually but more frequent reports
can be specified by Control Authority.  See 40
CFR 403.12(e).
                                            ''Electroplating Categorical Industry Only

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                           ATTACHMENT  3
       Enforcement of  Electroplating  Pretreatment  Standards
     The deadline for  non-integrated electroplating  facilities  to
comply with the electroplating pretreatment  standards was  April 27,
1984.  The deadline for  integrated  facilities was June  30,  1984.
Facilities that have acted expeditiously  in  good faith  to  achieve
compliance should generally  have  been able to comply with  the
standards by the applicable  deadlines ;<;> ;-  -  -/v,-.-,;;.:--,    <  •.••,.-:.-^.•-•••-:••--•••

     The electroplating  pretreatment standards (40 CFR  Part  413)
were promulgated on January  28,  1981  (46  Fed. Reg. 9467).   These
standards (with the exception of  those applicable to integrated
facilities, discussed  below) have remained in effect since
promulgation, and facilities have thus had three years  and  three
months from the date of  promulgation to achieve compliance.  As
discussed in the main  section of  this guidance, compliance  with
these standards is essential, and appropriate enforcement  action
should be taken against  violators...   ..:...-=.,.-;  ;> .•••..;•. ^--  .--..  	

     Some industry members challenged the electroplating pretreatment
standards soon after their promulgation.  The court upheld  these
standards in their entirety  on September  20, 1983.  National
Association of Metal Finishers v. EPA, 719 F.2d 624  (3rd Cir.
1983).  It is clear from the legislative history of the Clean
Water Act and other sources  that  companies must litigate on  their
own time and are not entitled to  delay compliance pending  the out-
come of litigation.  See, e.g., Train v.  Natural Resources  Defense
Council, 421 U.S. 60,  92 (1975).  Therefore, electroplating
facilities who have delayed  compliance activities while awaiting
the outcome of the NAMF  litigation  should not be.considered  as
having acted in good faith.

     Another factor that does not justify delayed compliance is
EPA's ongoing review of  the pretreatment.program.  In the past,   .
EPA has considered the possibility  of amending some aspects  of
the general pretreatment regulations.  EPA is continuing to
examine the pretreatment program  and may at  various times  amend
the regulations.  This is a  normal  occurrence in the evolution  of
any regulatory program.  However, the basic  program has been unchanged
since June 26, 1978, and no  changes are currently contemplated  that
will affect the status of the compliance requirements of the
electroplating pretreatment  standards.

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                              - 2 -
     Similarly, the existence of pending legislative proposals
relating to the pretreatment program does not constitute an
.appropriate grounds for delaying compliance with pretreatment
standards.  Existing statutory and regulatory requirements are
valid and enforceable unless and until they are modified.

     Some special considerations pertain to the June 30, 1984
categorical standard compliance deadline for integrated electro-
plating facilities.  (These considerations do not pertain to non-
.integrated electroplaters.) ..In ..early ,198 l;f,, EPA, established .and
then suspended a March 30, 1984 compliance deadline for these
facilities.  On July 8, 1982, the U.S. Court of Appeals for the
Third Circuit held that the suspension was illegal and reinstated
the March 30, 1984 compliance deadline, (NRDC v. EPA, 583 F.2d 752
3rd Cir. 1982).  The Third Circuit later extended the deadline
by three months to June 30, 1984.

     Subsequently, some owners and operators of integrated
facilities petitioned EPA to extend the deadline.  EPA determined
that an integrated facility acting in good faith could comply
with the electroplating pretreatment standards by June 30, 1984.
Therefore, EPA denied their request on June 3, 1983 (48 Federal
Register 24933).  This denial was upheld in General Motors v. EPA
INos. 83-3418 and 83-3432, June 26, 1984).

     In general, an integrated manufacturer that began its
compliance program promptly after the July 8, 1982 NRDC decision
and pursued it diligently since then should have been able to
meet the June 30, 1984 deadline.  However, a few integrated
plants may be able to demonstrate that despite good-faith efforts
since July 8, 1982, they could not comply by June 30, 1984.  In
such cases, these good-faith efforts should be taken into account,
and the POTW should exercise its enforcement authority in a
manner consistent with this enforcement policy.

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                     MODEL TRANSMITTAL LETTER

       (FROM THE REGION OR STATE TO THE CONTROL AUTHORITY)
INSIDE ADDRESS
Dear
     With approval of your municipal pretreatment program has
come new responsibilities, including enforcement of national
pretreatment standards for certain industries which discharge
into your municipal sewerage system.  These industries of concern
are known as "categorical industries".  The Federal categorical
standards for each affected industry can be found at 40 CFR 405
to 40 CFR 471.

     In a continuing effort to assist municipal managers such as
yourself who are .implementing p.retreatment, programs., the .Environ-
mental Protection Agency has developed guidance, pretreatment
training workshops, and seminars.  As part of this effort, enclosed
is the Pretreatment Program Guidance to POTWs for Enforcement of
Industrial Categorical Standards.

     This guidance explicitly offers you information concerning
your authority and responsibilities to conduct certain activities
as a part of implementing your program.  It sets forth what EPA
considers as appropriate responses to industrial users who fail
to comply with categorical standards by the regulatory deadlines.

     As part of each POTW's responsibility to enforce.categorical
standards, there is a requirement to obtain 90 Day Compliance
Reports.  By regulation 40 CFR '412, each industrial user affected
by a categorical standard must submit.a compliance report to the
Control .Authority within 90 days after -the compliance deadline of  .
the categorical standard.

     To assist POTWs in obtaining this information, we have en-
closed a model letter to be sent by POTWs to each industrial user
which may be required to submit a compliance report. (Note: The
model letter enclosed pertains to electroplating industrial
users.  Most other categorical industry letters would be less

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complex, and would have alternate compliance reporting dates.)
A summary of the compliance report response should be maintained
with the POTWs enforcement records.

     This guidance is of a general nature. Should you have any
specific questions please contact (Regional or State contact).

                                    Sincerely,
                                    (Appropriate EPA or State
                                       Official)

Enclosure

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                            MODEL LETTER

           (FROM THE CONTROL AUTHORITY TO CATEGORICAL IU)


 V-
 Subject:   Electroplating Industry Compliance

 Dear Sir:

      The National  Pretreatment  Program,  established  under the
 authority  of  the Clean Water Act of 1977,  requires  that certain
 industry groups, including electroplators, .meet  pollutant -,,  .-..  ..
 limitations  before discharging  such pollutants  into  local-publicly
 owned treatment works  (POTW).

 The  Electroplating pretreatment standards  are published in the
 Code of Federal Regulations at  40 CFR 413.  There are two distinct
 deadlines  which apply  to this  industry based on  plant operations.
 "Integrated"  plants are those which,  prior to on-site treatment,
 combine electroplating waste streams  with  significant process
 waste streams not  covered by the electroplating  category.  "Non-
 integrated"  facilites  are those which have significant wastewater
 discharges only from operations addressed  by the electroplating
 category.  According to our records,  your  facility  is subject to
 the  Electroplating Categorical  Standard  (40 CFR  413).  If you
 believe that  you are not subject to either of these  rules,  please
 notify us  immediately  by submitting a request for a  categorical
 determination as provided by regulation, 40 CFR  403.6.


 If your facility is a  non-integrated  electroplating  facility,
 you  were to  comply with the appropriate  pretreatment standards
 for  metals and cyanide by April 27, 1984.  In addition,  you were
 to submit  a Compliance Report advising us  as to  whether .you met
 the  April  27  deadline  by July  27, 1984.  If you  did  not meet  the
 compliance deadline,•then your  Compliance Report must include  a
 Compliance Schedule describing  the actions you are undertaking
,to meet the .pretreatment standards and ,£he..earliest .date..by.. .,,
 which you  can and  will comply.

 If your facility is an integrated electroplating facility,  the
 deadline for  compliance with pretreament standards was
 June 30, 1984.   Your Compliance Report was due by September 28,
 1984,  and  must include, if applicable, your Compliance Schedule.

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                              - 2 -
The content of the compliance report must comply with regulation
40 CFR 403.12(d);

     "Within 90 days following the date for final compliance with
     applicable categorical Pretreatment Standards . . .  any
     industrial user subject to pretreatment standards and
     requirements shall submit to the, Control Authority a report
     indicating the nature and concentration of all pollutants
     in the discharge from the regulated process which are
     limited by pretreatment standards and requirement standards
     and the average and maximum daily flow for these process
...  . units in the Industrial User which 
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                                                                        VLB.11,
                                 •.'. .-• • ••'•-....•:_••*'•:' •    .•••/.•!..»., -»i- • •...••.. • . .'•
       PRETREATMENT MULTI-CASE ENFORCEMENT INITIATIVE", dated December  31,
1984.   Attachments A and B  excluded.

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  1       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
  /                     WASHINGTON, D.C. 20460
                           DEC 3 I  1984
                                                     OFFICE OF ENFORCEMENT
                                                       AND COMPLIANCE
                                                         MONITORING
MEMORANDUM


SUBJECT:  POTW Pretreatment Multi-Case Enforcement Initiative
FROM:     Courtney M. Price
          Assistant Administrator for
            Enforcement and Compliance Monitoring

          Jack E. Ravan
          Assistant Adminfs"
            for Water

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


     The Office of Enforcement and Compliance Monitoring and the
Office of Water are initiating a nationally coordinated effort
leading to judicial enforcement against POTWs which have not met
requirements to submit an approvable local pretreatment program.
We are also requesting information and support from your office.
Specifically, on or about April !_, 1985, EPA and the Department
of Justice propose to simultaneously file 20 or more civil
complaints nationwide against POTWs targeted as proper candidates
for this enforcement initiative.

     Compliance by POTWs with pretreatment requirements is the
pretreatment program's top enforcement priority and is listed
on the Agency Operating Guidance, FY 1985-1986, Priority List.
Currently about 350 POTWs have failed to submit complete and
approvable pretreatment programs to the Approval Authority.
As you know, the Agency.has established FY'1985 SPMS commitments
to have all required programs approved-or -to: have initiated
judicial enforcement actions against violating POTWs by
September 30, 1985.

     To help the Agency achieve this commitment, the Office
of Enforcement and Compliance Monitoring, the Office of Water,
and the Department of Justice have agreed on a streamlined
process for a judicial enforcement initiative early in calendar
year 1985.  This initiative will send a clear message to affected
POTWs of the significance to EPA of this end-of-fiscal-year
goal, thus encouraging them to submit approvable programs.

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                               -2-
The POTW Pretreatment Multi-Case Enforcement Initiative

     In order to meet the April 1, 1985 target for filing 20
or more POTW judicial actions, we have developed the schedule
outlined in Attachment A for the Regions, Headquarters and the
Department of Justice.

     To expedite the referral process, those cases most likely
to present the strongest legal position for the Government to
prevail in judicial enforcement have been identified.' We have
grouped into four categories the POTWs which have neither submitted
a complete and approvable pretreatment program nor are currently
referred by EPA for legal enforcement action.  Attachment B is
the current list of the Category I and^ir-POTWs;>; itr is based ' ''
on information received from the Regions at the end of FY84 and
updated through staff contacts.

  Category I:    POTWs whose NPDES permits require pretreatment
                 program submittal and are in violation of an
                 EPA-issued Administrative Order (AO).

  Category II:   POTWs which have a pretreatment permit requirement
                 but have not been issued an EPA AO.

  Category ill:  POTWs which do not have a pretreatment permit
                 requirement but are in violation of an EPA-
                 issued AO.

  Category IV:   POTWs which have neither received an EPA AO
                 nor had their NPDES permit modified to include
                 a pretreatment permit requirement.

     We request that by noon, Friday, January 18, 1985, your
office submit (via overnight delivery service, if necessary)
to the.Office of Water Enforcement-and Permits -.(OWEP..) a completed
version of Attachment C—the Pretreatment Program S.ubmi.tt'al
Information Sheet—for each Category I and II POTW in your Region.
(In most instances, compilation of this information should be
the responsibility of the Water. Management Division Director.)
This Information . Sheet -should..-alsobe.-': s'ubm'ltted- for :ahy other • •
POTW in your Region which has a modified permit specifying a
deadline for obtaining approval of:.a local pretreatment program,
but has not submitted a complete and approvable program.  A copy
of your' transmittal should also be transmitted to the appropriate
Assistant Section Chief in the Environmental:Enforcement Section
at the Department of Justice.

     The following information should be included tor each
Category I and II POTW in your Region's January 18 submission:

  (1)  Status of each of the six required program elements
       (Industrial Waste Survey, Legal Authority, Technical
       Elements/Local Limits, Compliance Monitoring Program,
       Administrative Procedures, and Resources).

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                               -3-
  (2)  The report should indicate a specific date when a complete
       program is expected to be submitted and whether or not the
       POTW should be referred for judicial action.  An indication
       by the Region of a POTW's expectation to submit a complete
       and approvable program should be based on a high degree
       of certainty.  Cases should not be targeted where a POTW
       has firmly committed to supplement an incomplete prior
       submission in a timely manner.

  (3)  Discussion of the obstacles that are currently preventing
       each Category I and II POTW from submitting a complete
       and approvable pretreatment program.

  : (4)  .A history ;of. State..and/or Regional enforcement act ion-  :
       for each Category I and II POTW..

  (5)  To the extent possible at this time, the following areas
       should be included in your January 18 response for each
       Category I or II POTW:  (a) the total flow (in MOD) and
       the percent of industrial flow (in %); (b) environmental
       concerns associated with the POTW's pretreatment program,
       for example, demonstrable environmental problems;
       (c) the existence of concurrent permit effluent limit
       violations and any other existing NPDES Administrative   ,  .
       Order'violations; (d) availability to the POTW of any
       equitable defenses; (e) current or planned State action
       that might be taken in conjunction with EPA's initiative;
       and (f) any other pertinent legal or technical matter*which
       would affect an enforcement action against a Category
       I or II POTW.  (Discussion of items (b)-(f) should be
       kept brief; failure to ascertain this information should
       not postpone your Region's January 18 submission.)

     Meetings between Department of Justice legal staff, OECM
legal staf.f, and.OWEP technical staff .will. take-place during, the
latter part of January in each affected Region to further refine
the Region's January 18 submissions and to resolve the necessary
legal and technical issues that will facilitate assembly of
streamlined litigation reports .by the Regions -for submission to
Headquarters- by February 15, 19.85--rpartiGular]:y. those- matters
in number' (5) (b)-(f) above.

     The Office of Enforcement and Compliance. Monitoring.,.   .   .
the Office of Water, and the Department of Justice will give
these referrals expedited, priority attention to facilitate
national coordination and simultaneous filing on or about
April 1, 1985.  In all actions filed, the Government will seek
program submission as soon as possible, typically no later than
six months from entry of a decree, as well as appropriate civil
penalties.

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                               -4-
Additional Considerations

     Several legal and technical issues have been identified
and discussed by Department of Justice, OECM and OWEP staff
to assist the Regions in identifying prospective POTW referral
candidates among Category I and II POTWs.   The following items
derived from these discussions should be taken into consideration
by your office in making determinations for POTW referral
candidates:

  (1)  With respect to currently existing  NPDES effluent limit
       violations, these claims should be  addressed in the
       failure-to-submit case whenever feasible.  These claims
  ,;     can be identified from Municipal Policy •Inventories^
       DMR's and QNCR's. .The Department of Justice is ready
       to commit the necessary resources to resolve the issues
       associated with these cases and to  press forward with
       them once they are filed.  Where a  basic concept of the
       technical remedy necessary to address effluent violations
       cannot be identified in the initial POTW referral to
       Headquarters, the government position will be developed
       by Region/DOJ/HQ discussions prior  to filing.  Issues
       associated with POTW financial capability will be resolved
       in a similar manner prior to filing.   .. ....

  (2)  With respect to multi-jurisdictional POTWs where failure
       to negotiate ordinances, legal authorities and other
       commitments from contributing jurisdictions is the primary
       impediment to program submission, the Department of Justice
       has indicated that, this issue, though possibly complicating
       an enforcement action, will not preclude filing of an
       enforcement action;  such action will be brought against
       the "parent POTW."

  (3)  To be successful/ this pretreatment enforcement initiative
       will need to address a good mix of  cases that tackles
       sizeable problems as well as simple ones; for^example
       filing 20 or more cases against the smallest Category
       I and II POTWs will not achieve the desired result.

  (4)  This Initiative should be implemented consistent with
       the FY-85 State/EPA Enforcement Agreements and the soon-
       to-be-issued policy on "Nationally  Managed .or Coordinated
       Enforcement Actions" (draft, 11/15/84).  The Regions should
       coordinate with State authorities to the extent called
       for in these agreements.  In States with pretreatment
       authority the States should have received an opportunity
       to take timely judicial action.  States should be invited
       to take complementary action and be involved as appropriate
       throughout this process.  In NPDES  States without
       pretreatment authority, the Regions should follow advance
       notification and consultation provisions contained in
       applicable enforcement agreements.

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                                                                 VLB.12.
"EXAMPLE PERMIT LANGUAGE REQUIRING POTWS TO IMPLEMENT PRETKEATMENT
PROGRAMS", dated February 22, 1985.

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

U.S. Environmental Protection Agency
          Permits Division    •  •  ••
         401 M Street, S.W.
      Washington, D.C.   20460
            Prepared by:

           JRB Associates
  A Company  of  Science  Applications
      International  Corporation
         8400 Westpark  Drive
      McLean, Virginia   22102
     EPA Contract  No.  68-01-7043
   JRB  Project  No.  2-834-07-167-00

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     REGION II
        •„•-.';  - " .
^State of'New York)

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                                                       Part I
                                                       Page 	 of
                                                       Facility No.:
                  PRETREATMENT PROGRAM IMPLEMENTATION
                             REQUIREMENTS  .
The  permittee  shall  implement   the  Industrial  Pretreatment  Program  in
accordancetwith the  legal  authorities,,  p.olicies,  prpcedur.es, .and., financial.
provisions  descri"b'ed'"in' the 'permittee''^ 'pretreataeht' 'program submission
entitled,          	\	'	,
dated 	,  approved by  EPA on  	,  and the General
Pretreatment  Regulations  (40  CFR 403).   At  a minimum,   the  following
pretreatnent   implementation  activities  shall   be  undertaken   by  the
permittee:

(1)  Enforce  categorical  pretreatment  standards  promulgated  pursuant _to
     Section 307(b)  and  (c)  of  the Act, prohibitive discharge  standards as
     set forth  in 40 CFR 403.5,  and local limitation  specified in Section
  .       • •••' '   of  the •(*)'•  (**) ^whichever 'are  more-'stringent  or "apply at
     the  time  of  issuance  or  modification  of  an  (***).   Locally derived
     limitations shall  be  defined as  pretreataent  standards under Section
     307 (d) of  the Act  and shall no.t  be  limited  to categorical industrial
     facilities.

(2)  Issue  (***) to  all  significant industrial  users.  .(***) shall contain
     limitations,   sampling  protocols,  compliance schedule if  appropriate,
     reporting requirements, and appropriate standard conditions.

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

'(4)  'Carry  out' • inspections", ' surveillance," and '' mo-nit or ing ; 'activities, 'on'
     significant industrial  users  to  determine 'compliance  with applicable
     pretreatment  standards..;  Records,  shall.be  .maintained  in accordance
     with Part.II.  10.3.a.       .             '.   .

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

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                                                            Part I
                                                            Page 	 of 	
                                                            Facility No.:	

.«              ^
B.   Pursuant to 40 CFR 403.5(e),  whenever,  on the basis of information provided
     to NYSDZC  or  the  Water Division Director,  U.S.  Environmental  Protection
     Agency, it  has been determined that any source contributes  pollutants  in
     the  permittee's  treatment  works  in  violation  of Pretreatinent  Standards
     Existing   Sources,   New   Source   Pretreatment   Standards   or   National
     Pretreatinent Standards: prohibited  discharges,  subsections (b),  (c)  or (d)
     of Section 307 of the  Clean Water Act,  respectively,  notification shall be
     provided  to  the  permittee.   Failure  by  the   permittee   to  commence  an
     appropriate investigation and subsequent enforcement  action within  30 days
     of this notification may  result in appropriate, enforcement action against
     the source and permittee.

C.   Sampling

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

D. •  Reporting

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

          Department of Environmental Conservation
          Regional Water Engineer

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

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

                 (applicable only if checked)
          County Health Department

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

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                                                            Part  I
                                                            Page  	 of 	
                                                            Facility No.:	

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

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

     (iii)Status  of Program implementation  to  include:

          (a)   Any  substantial modifications  to   the  pretreatment  program ^s
               originally approved by  USEPA to include but not  be  limited to;
               local limitations,  special  agreements and  staffing  and  funding
               updates.

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

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

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

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

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

          (g)   Listing of  significant  industrial  users notified of  promulgated
               pretreatment standards or applicable  local standards who  are  on
               compliance  schedules.  The  listing should  include for  each
               facility the final date of compliance.
          **
         ***
        ****
       *****
Industrial discharge permits, Agreements, Contracts, etc.
Specify frequency (semi-annual or annual)
Six or 12 months
The  permittee  shall  also  report  on  the  pretreatment  program
activities of all contributing jurisdictions

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                                                            Part  I
                                                            Page  	 of _
                                                            Facility No.:
          (h)  Planned changes in the implementation  program.

     (iv) Status of enforcement activities  to  include:

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

(b)   Listing  significant  industrial users  nor  complying with federal  or
     local  pretreatment standards  as  of the  final compliance date.
                                          • »
(c)   Summary   of   enforcement   activities  taken   or  planned   against
     non-complying significant industrial users.  The  permittee  shall
     provide  public  notice of  significant  violators  as specified  in 40
    .CFR Part  403.8(f)(2)(ii).
Special Conditions (case-by-case)

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

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

     (2)  The permittee shall monitor  the  following  major industrial  users  for
          the pollutants of concern on a  [frequency,  e.g.,  monthly, quarterly]
          basis and forward a  copy of the results  to  NYSDEC.

          List Industrial Users              List  Pollutants  of Concern
                                             (Detection limits)

          a.                                 i.
          b.                                 ii.
          c.                                 iii.
     *   City, Village,  County,  Town,  etc,
    **   Code, Local Law,  Ordinance,  etc.

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

(A)   The  permittee  shall   provide  information   as   required   by  40   CFR
     403.12(i)  and (j) regarding removal  allowance.

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

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                                                             PART I
                                                             VA0060593
                                                             Pase 3 of 5
                                    PART I
C.  Special Condition - Chlorine

    This perir.it shall be modified or alternatively revoked and reissued
    to comply with or reflect the evaluations and/or recommendations of
    the disinfection task force 'and any resulting effluent standard or
    limitation.

D.  Pretreatr.ent Program

    EPA by letter of November 10, 1983 approved the City of Danville's
    Pretreatmer.: Program.  3.y this approval, all provisions and regula-
    tions contained ar.d referenced in the Program are an enforceable
    par: of this NPDES Permit.

I.  Toxic Montioring Program

    1.  The City of Danville shall subr.it for approval to the State Water
        Control Board vithin 180 days of the effective date of the perr.it
        a Toxics Monitoring Program.

    2.  The State Water Control Board shall review the submittal of :he
        Toxics Monitoring Program vithin 90 days after receipt of the Program.

    3.  The City of Danville shall implement the Toxics Monitoring Program
        within 90 days after notification of the State "ater Control Zoard
        approval and the provisions contained within the Program shall become
        an enforceable part of this NPDES Permit.

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        REGION IV
          of Georgia)
(State of North Carolina)

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State of Georgia

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


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

    1.   The terrr.s and conditions of the permittee's approved pretreatment
        program,.approved by.-the Environmental Protection Division  (EPD)
        on  ;vpril S,  1SS3                          ,  (as provided for in
        Chapter ^lo-o-.unfeo; oi.tne Kuies ano rceguiations for Water
        Quality Control), shall be enforceable through this permit.

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

    3.   Starting on  April 15,  1984    	the permittee shall
        submit annuauy to crU  a report to induce me following information:

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

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

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

    4.   The permittee to which reports are  submitted by an Industrial User
        shall  retain  such reports for a minimum of 3 years and  shall  make
        such reports available for inspection and copying by the EPD.  This
        period of retention shall be extended during the course of any un-
        resolved litigation regarding the discharge of pollutants by  the
        Industrial User or the operation of the approved pretreatment program
        or when recuested bv  the Director.

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STATE OF GEORGIA                                      PART  III
DEPARTMENT OF NATURAL RESOURCES
ENVIRONMENTAL PROTECTION DIVISION                 Page 13 of   13
                                                         Permit No.   GA0024449


B.  INDUSTRIAL PRE7REATMEN7 STANDARDS
      . •
    1.*"   The permittee shall require all industrial dischargers into the permitted
         system to meet State and Federal Pretreatment Regulations promulgated
         in response to Section 307(b) o: the Federal Act. Other information may
         be needed regarding new industrial discharges and will be requested from
         the permittee'i'ft'er EPD has received notice of the new industrial discr.arge.

    2.   A major contributing industry is one that:  (1) has s. flow of  50,000 gallons
         or more per average work day;  (2) has a flow greater than five percent of
         the flow carried by the municipal system receiving the waste;  (3) has in
         its  waste a toxic pollutant in toxic amounts as defined in standards issued
         under Section 307(a) of the Federal Act; or (*) has significant impact,
         either singly or in  combination with other  contributing industries, on the
         treatment works-or the quality of its effluent, or interferes with disposal
         of its sewage sludge.  •

    3.   Any change' in the definition of a major  contributing industry as a result
         of promulgations in response to Section  307 of the Federal Act shall
         become a part of this permit.
C.
REQUIREMENTS FOR EFFLUENT LIMITATIONS ON POLLUTANTS ATTRIBUTABLE
TO INDUSTRIAL USERS

1.   Effluent limitations for the permittee's discharge are listed in Part 1 of
    this permit.  Other pollutants attributable to'inputs from1 major contributing
    industries using the municipal system may also be present in "he permittee's
    discharge.  At such time as sufficient information becomes available to establish
    limitations for such pollutants, this permit may be revised  to specify effluent
    limitations for any or all of such other pollutants in accordance with best practi-
    cable technology or water quality standards. Once the specific nature of indus-
    trial contributions has been identified, data collection and  reporting requirements
    .may be levied for other parameters in addition to those specified in Part I of this
    permit'.

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

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State of North Carolina

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                                                        (Modified)
Pretreatsent
.he Permittee has submitted documentation  to  the  Division of  Er.vir---
nental Management which complies with  the  required  activities containec
in the State and Federal Pretreatment  Regulations 15 NCAC 2r.  .0900  and
iO Cm A03 respectively.  The approved  Local  Precreatner.t Program and
Conditions of Approval are hereby incorporated  as part of this perr.it
by reference.  The on-.coing'industrial  monitoring activities  cf the
PC7i>" s pretreatnent program shall be governed by  prejtreatzient regulati:
and the Conditions of Final Approval.

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    the Publicly Owned Treatment Works or POTW) to aid the State in the mar.a*e-
    tnent of the Local Pretreatment Program established pursuant to the afore-
    mentioned regulations and statutory authority.
.•
                Section II. . Responsibilities of POTW and DEM
1.  The pretreatment program will be administered at the local level with scats
    participation as described herein, after the POT.-.' has taken certain enabling
    actions.  These action consist of, but are not limitec to, amending its
    sewer use ordinance to meet minimum requirements of state and federal pretreat-
    ment regulations, submitting and industrial user'(IU) survey in an acceptable
    format, and reaching agreement on a pretrearment implementation schedule in
    the POTW's. XPDES Permit.,.
2.  The POTVT will have assumed responsibility for performing the following .activi-
    ties :
    a.  Conduct an Industrial User Survey including identification of industrisi
        users and the character and volume of pollutants contributed to the POtT
        by the industrial users.
    b.  Submit an evaluation of legal authorities to be used by the permittee  to
        apply and enforce, the requirements of sections 307(b) and 402(b)  (s) of
        the Clean Water Act, including those requirements outlined in ^0  CFR i03.S
        (f) (1)  and .0905.
    c.  Submit a determination of technical information (including specific require
        ments of 40 CFR 403.8 and 0905 and .0908.)
    d.  Submit specific V07W effluent limitations for prohibited pollutants contri-
        buted to the POT.C by industrial users.
    e.  Submit design of a monitoring program which will implement the requirement;
        of the State and Federal regulations.
    f.  Submit list of monitoring equipment required by the POTW to implement  the
        nretreatment program and a description of municipal facilities t~ be'
        structec for monitor ins or ar.aivsis cf industrial wastes.

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     g.   Subrp.it an evaluation of  financial programs and revenue  sources as




         required by 40 CFR 403.8(f)  (3), and  .0905 (f) (3) which will be




         employed to implement  the pretreatnent program.




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




         dit approval, if  desired) as required by 40 CFR 403.9 and  .0909.




3.   The  DEM will review removal  credit request and will make an appropriate




     determination.




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




     industry may be commented  upon by the ?OTW.  DEM will make  a preliminary




     finding and deny the  request if fundamentally different factors do r.oi




     exist.  If such factors are  found to exist, DEM will forward to EPA a




     recommendation that the request be approved.






                                  Permit Review and Issuance





1.  Applications by an IU for  a POTW Indirect Discharger (PI3) Permit will




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




    application should be submitted to the POTW for review and  comment.




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




    proposed pemit will be provided to the IU with a 30-c'ay comment period.




3.  The POTW will issue PID Permits to primary industries (as- defined by ^0




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




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




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




    of the hydraulic or organic-design capacity of the receiving POTW, or an




    IU having a priority pollutant in its discharge.)




4.  jetermir.aticr. of IU's prctreatmer.t standard subcategory and ?:D Permit




    limits (if national pretreatmer.t standards are unavailable) shall be

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    nade by the POTW with concurrence by DEM.   Minimum acceptable IU pre-

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

    EMC, although ordinance requirements may  supersede national standards if

    more restrictive for purposes of protecting Water Quality.

5.  Prohibitive pretreatment determinations will be made in accordance with

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

    minimum criteria expressed in 40 CFR 403.5(b).

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

    at established intervals except that permits may be modified or revised

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

    become a factor.


                      Section IV.   Compliance Assurance

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

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

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

    able reporting intervals, established by  the POTW.

2.  The POTW will maintain a compliance evaluation system for permitted lU's

    with overview by DEM.  Copies of violation notices concerning compliance

    evaluation by the POTW will be provided to DEM.

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

    evaluation inspection and one compliance  sampling inspection by the POTW each

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

    by the POTW will be maintained as a written report for accountability purposes.
                                                                                 i
    All compliance records shall be maintained for a minimum of three (3) years.

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                                       (5)
                            . Section V.  Enforcement





 1.  The POTW must play the lead role in enforcement.  Enforcement nay be a




    joint effort witn DEM overview.  The POTW shall keep  the DEM informed




    concerning all enforcement actions initiated.




 2.  The DEM has the authority to overview and if necessary  to enforce against




    non-compliance by industrial users when the POTV.' has  failed to  act or has




    acted to seek relief but has sought a penalty which the director finds to




    be insufficient.




 3.  The enforcement of POTW pretreatment programs by DEM  is conducted through




    the POTW's XPDES permit.




            Section VI.  Reporting and Transmittal of Information




 1.  The POTW will advise the DEM of all introductions of  new pollutants ir.to




  '  the POTW.




2.  The POT*-; will transmit to the DEM a copy of ail compliance inspections




    performed at IU facilities by the PO'i'W.




3.  The DEM will transmit to the POTW a copy of all compliance inspections per-




    formed at IU facilities by the DEM..




4.  The DEM will notify the POTW of the applicability of  pretreatr.ent standards




    as final standards are promulgated to EPA anc adopted by the EMC.  The




    industrial user inventory provided by the POTV will be used as  the basis :c




    notifications to appropriate Ill's.





                    Section VII.  Revisions to Agreement




    This agreement may be reviewed annually during the fourth quarter or eacr,




fiscal year (beginning October 1 and ending September 30) with revisions agree-




able to both parries made at that time.

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

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State of Indiana

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                                                                   EXAJffLE  2
                                       Permit No. IN 0025755


                INDIANA STREAM  POLLUTION CONTROL BOARD

             AMENDED AUTHORIZATION TO DISCHARGE UNDER THE

            NATIONAL POLLUTANT  DISCHARGE ELIMINATION SYSTEM
          In compliance  with  the provisions of the Federal Water Pollution
Control Act, as amended  by PL 92-500 and PL 95-217,  (33 U.S.C.  1251 et seq. ;
the "ACT"),  and Public Law 100, Acts of 1972, as amended  (1C  13-7 et  seq.;
the "Environmental Management Act"), the National Pollutant Discharge
Elimination  System (NPDES) discharge Permit No. IN 0025755, issued September  1,
1984,  to the City of Goshen,  located at Goshen, Indiana,  is hereby amended
by the revision of pages 8 and 9 of  11, and the deletion  of page 10 by the
addition of  pages 2a,  8, and  9 of  11.  The additional pages establish' -
conditions for the operation  of a  local pretreatment program  by the permittee.

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

          This amendment shall become  effective on the date of  the signature
of the Technical Secretary.
          This amendment  shall  expire at midnight, August  31,  1989.
          Signed this
day of
for the Indiana Stream Pollution Control Board.
,  1984,
                                  Technical Secretary
                                   J|oCTons84   |
                                      PERMIT SEcrTois
                                      £PA, REGION v

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                                                       Permit  No.  IN  0025755
                                                       Page  8a of  11
                                                       Date  Revised:
                               PART  III

                        Requirement  to Operate
                        a Pretreatment Program
          The permittee,  hereinafter referred to  as  the "Control Authority,"
is required to operate an industrial pretreatment program as described in
the program proposal approved by the Indiana Stream  Pollution Control Board.
To ensure the program is  operated as approved,, .the following conditions and
reporting requirements are hereby established:

     The Control Authority (CA) shall:

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

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

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

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

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State of Wisconsin

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                                                                              Pert I I.   Section E
                                                                              VPDES reralt ,'<.  W|-o:2?5£l-:
  i7r.Ei~!'H17
Tr.e perr.lTtee  is  required  -o orerete en Industrial pretreetr-.ent program  es  described in tr-.e progrem
approved by the C-e?er~ent of  N'aTur;!  Resources end theT corr.pl les wlrn The  rec,uirer,er,Ts set icrrr. ir.
N?. 21)-, vis. Ac.-.  Ccce.'  "c ensure The prcgrsr is cper-Ted  In  ecccrcence with the epprovec prc"a-,  The
folio*Inc conditions  and  requirements  sre heresy established:
     I r. ve'.Tcr i eS
     e.   Character  and Volume of  Industrie I  Discharges
          The  p-err.lt-ree shell  rair.Tein e current  inver.to'y of  tr.e  oengrel  character £nd volu~« cf
          »£STe«£Ter  Th£t incusTrieI users discharge  TO  Tne  Treetnent works enc shall upcetg the
          irrcustr I e 1  user survey annually end reporT  any  changes  In  the survey to the Wisconsin
          Depe.'T^ent  of Nature! Resources by Februery 2£th of  each year.
                                                                I
     b.   Priority PcMotar.ts  enc Accltlonel Organic  Co-pounds

          The  perr.itt£e shell  ccnd'uct en  lnver.tc.-y  of prloriTy pollutants es deflr.ec by the U.S. -I.= A,
          and  shall  elso icentlfy and quantify  eiCltior.el organic  compounds which occur In the  Influent,
          effluent end slucce.  The  inventory shell  be ccroleted  by  l-'.arch 31',  19£7 enc shell consist cf:

           1)    Sar;ling anc jr.alysls cf The  influent  end effluent  for the priority pol I utjr.ts.   The
                se--pl Ir.c sr.eii  be ccr>e curing e  c'ty  when  Industrial dlscherces  are ocrvrrir.c et  r, err. a I T;
                r-.ex irr.um levels.  The  se-"!es  shell be. 72-hour car.pc-s i tes, except for voletile org;r.ics.
                which shel'l ;» Te'r.en  by grab  sampling  Techniques.'  Analysis for the U.S. ;?A Orci.-lc
                Priority Pcllutir.ts  shell  be  terfcrrec using  U.S.  L5A rr^ethocs t£2i  tnc  f625  (July  I9£2
                version cr rsre  rece't version).

          2)    Sa-pling enc er.alysls of e sludge  sa-.ple  for  the priority pollutants.   The  slucge  si-;le
                shai I  be a ccr-posite  of *ee*l y samples ta?partr.ent.  Special sampling  end/or  preservation procecures »lll be rec.'lrec  for
                'those pollutants which deteriorate rapidly.   The Oe?ertr:.er.t will prcvlce edditicr.el
                guidance on sar-.ple collection, storepe end analysis et the pert?.! trees recuesT.
                In eddiTicn TO the  prlorlTy  polluter.ts,  e reesontsle eTrefflpt shell  be r.ede to  Identify
                and quantify The  ten most  eSuncer.t  constituents of each extract  (excluding priority
                pollutants end unsutst 1 ttted aliphatic compounds) sho»n to be  present ty  pee'«.s  or.  the
                tote I   Ion plcts  (reconstructed  gss  chror.atogrens) more then ten  tir«s higher then  the
                adjacent background noise.   Identification shall be efrer-.pted  through the use of the  U.S.
                ErAysih ccr.puter I :ed  I Isre.-y of r.ess spectre, with visual confirmation  by en experienced
                anelyst.  Ojjr.t i f Icet icn "ey be en  order-sf -r.esr.l tude estlr.-te bes-efi upcn ccrperison  with
                en interr.jl sTencerc.

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                                         I       -2 -

2.   Co-rr;l end Enf crcg-^r.T

     c.    Incus trie I User Conpllance  Schedules

           The permlTTee shell  reculre the  development of ccr.pl lence schedules, es necessery.  by ee:h
           InCustrlel user for  The  IHSTC! I iTlor.  of  ccnrrol  Technologies to m&»T eppllceble InCcst.-isI
           user discharge  limits  end other  pretre'etwer.t reculrerents onC shell Issue discharge permits *
           Incustriel users  In  ecccrcence wit.!-, the  approved pretrea—«nT prcg-e.t. prcceCures by
           Secte-ser 3C,  IS5<.

     t.    Incustrlel User VioleTlon P.eporT

           Tne ~era i tree  shell  enforce tne  Industrie I  pretreatment requirements  IncluClnc  incus-rial use
           Cischerge limits,  of the Section £.11 of the Cose of Ordnances.   In  tcclTior,,  The perrMrree
           Is, reculred  TC  reporT ouerTerly industriel  users thet ere  in vIoleTion  c< the orcir.e.-.cs te t:
           C^perr^nt o1  nature!  Resources by JO Cays  following the enC ot eech  QuerTer.   The repcrT
           shell  Inclufle  e Cescriptior, of corrective  actions That heve or will be  teken by.tne  persiTTe-
           TC resolve The  viol at ions'.   -The first report she I I "be due  Septe^oer 30,  ISoi.   If there ere <
           Ir.Sustrlcl users  in violetlon Curing a quarter,  the reporT shoulC  so  steTe.

 3.    A.inue.l  Freer en Revlevs
      e.    Prccrem £f fecT 1 veness Analysis

           The pemiTt&e sr.cll by Keren Jl, annually eveluoTe the effectiveness  of  The pretrearne.-.t
           prccro^,  enC sut~it a reporT TO the Department .  The  report  shell  inclu:e e brief  s
           th« worfc perforn-.eo Curing The yeer Including the numbers of  permlTS issued enC in  e f f
           rubbers end kincs of IndusTrial user reports revle»ec, number  of  Inspections enc ."- iTcrl.-.g
           surveys cor.JucTei, buCgeT enc personnel assigned TO the  progre-T.,  s general discussic-i  cf
           procre-T. progress  in r.e-°Tir,c Tr.e objectives cf  the  LeCrcsse  ?reTreerr«nT  rrogrt-n TcceTr.er  »\-
           su^rr.ery ccr>T\enTs  enc reco~~~en£aT ions.
      b.   Program f-tod I f I cat Ions

           Any signlficenT prsposed procrem aociiflcetlcn  shall  be  submitted to the DeperTment of
           Resources for esr "el.  HereinefTer,  e  significant  program modification shell  include, but
           net be limited tc ^  -y change  ir erjbllrig  legel  authority to edmlnlsTer and enforce
           preTreaTtr^nt prog- f conditions end  recu I regents ,  major modification In Tne progrerr.'s
           aQT.Inl strati ve prcceCurtT or operating agree^ent(s ),  e  significant reduction inmcniToring
           procedures, e slonlflcanT change  In  the  f Inancial /revenue system, ana a significant change
           (Including any relaxation)  In  the  local  I ImlTeTlcns  for Toxicants enforcec anc applied TO al
           effected InCusTrlel  users of the  se*aoe  treatment  works.
                                                 *         •

      Special Conditions
      e.   Survel fiance
           The pen-i—ee shell recuire  the  submission  cf,  receive end review self -monitor ing, reports ar
           other notices fro"1  Industrial  users  In  eccordence with the approved pretreetr-r.t program
           procedures.  The peralTre*  snail  also carry out Inspection, surveillance, enfl
                 e^.er.Ts which  will ceternlne,  inoep«ncent  of Inforrsetion supplied by he
                 r The  Inc-.-strlel users  ere  In  co-pi lance  with the Incustrlel user discharge lir.lts er.c
                 eppMceble preTree-rr^enr  recu I rement s .

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         t.    Pj;l icsTio- = •  Violarions

               Trie pernltTe-s  snsll  pusiis.i £  1 1 ST  of  IndusTriel users TnsT  r,t*e  si gni t i cer.r I y  viclere:  "r.e
               municipal is-er  us*  crrinjnce curing  me  cciencsr year,  in  r.-.e  le.-oesT Ctily ne»s?«oe.-  in  r.-.e
               tret  Sy  Jenujry  3l  C< TP.r IcIiO'ing  yei-',  pu.'Su«nT TO KR  2 I 1 . 31 I I ; 1C ) .

         C.    '.irlTCTiC-S  'O-  l.lCuSTrifil Users.

               ~~s oer.Ti*rT«-  s-ieii  C3r.;icTe en eveiuerio.i cl rr.e  iocel  I imi TJT i o.is tc." c^r-.lj-,  cn.-o-. iu.-,
               cc;:er,  lesi,  nickel, : i  r,c inc  cyenice  ^o." inccSTrici users,  c i scnerci n; rnese  sursTtr.css  *c
                           nr  ;lsr.T  en:  s'ji;  propose ilTerneie or r«»  liDlreTlons  It juSTitiec.   Tne
                             ll  provice  ^^e evsiufifior,  o' .locsl  limiTcrions In  t report TO  me  C/eje-rrenT  c-.e
5y Jur>e 3D,  i?;5.   U'por. concurrence  tf.z 4Cce;T«.-.ce o?  «irerr,4te or -ne»
                                                                                                      :y
               De?e.T7,enr,  tne  penr.iTTee  snail  eflcsT  I nTo its exisTing  se»er use orcinence  ssic  I i.T.l T«T i cns
               • i Tn i n six rcr.Tns.
062IC

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Region V Model Language

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                                                           DRAFT  COPY

                               ATTACHMENTS                 SUBJECT TO REVISION

OTHER REQUIREMENTS
 v              .

               APPROVED PRETREATMENT  PROGRAM CONDITIONS


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

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

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

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

violations of categorical  pretreatment standards promulgated under

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

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

tions of the Approved Pretreatment  Program in the following order:


A.  APPROVED PRETREATMENT  PROGRAM CONDITIONS

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

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

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

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

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   ••5.  Carry out inspection, surveillance,  and monitoring requirements
        which will determine, independent of information supplied by the
        industrial user, whether the industrial user is  in compliance with
        the applicable pretreatment standards.

    6.  Comply with all confidentiality requirements set forth in 40 CFR Part
        403.14 as well as the procedures established in  the approved pretreat-
        ment program.

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


B.  REPORTING REQUIREMENTS

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

    Permits Section or the State) a report on the 	:	th

    of   	-	   and the                 th of
    which describes the pretreatment program activities  for the (previous

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

    App'roval  Authority).  Such report(s)  shall  include:


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

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

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

    4.  A listing of the industrial  users  who significantly  violated  applicable
    pretreatment standards and requirements, as  defined  by Section 403.3(f)(2)
    (vii)  of the General Pretreatment Regulations,  for the reporting  period.

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

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

        7.   (optional)   The Control  Authority shall  submit  to the  (USEPA,  Region V,
        Permits Section or State Permit Section)  by December  31  of each year, the
        name and address of each industrial  user  that has received a revised
        discharge limit in accordance  with Section 403.7 (Removal  Allowance
        Authority).  This report must  comply with the signatory  and certification
        requirements of Section 403.12 (1) and (m).


    C.   SAMPLING AND MONITORING REQUIREMENTS

        1.   The Control Authority shall  sample,  analyze and monitor its influent,

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

        Part 135 and amendments thereto, in  accordance  with the  specified  moni-

        toring  frequency and schedule  for the following parameters:


(1)  Parameters                •      Units    Frequency    Samsle  Type    (2) Permittee's

    Total  Arsenic (As)

    Total  Cadmium (Cd)

    Total  Chromium (Cr,)

    Total  Chromium (Cr)

    Total  Copper (Cu)

    Total  Cyanide (CN)

    Total  Iron  (Fe)

    Total  Lead  (Pb)

    Total  Mercury (He)

    Total  Nickel (Si)

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                                          4

(1)  Parameters                     Units     Frequency     Sample  Type    (2)  Permittee's

    Total  Phenols

    Total  Silver (Ag)

    Total  Zinc (Zn)

    Total  Kjeldahl  Nitrogen (TKN)

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


    D.  SPECIAL CONDITIONS

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

        the Control  Authority for the specified parameters:


    Parareters      '                  Me/ 1              Pounds / Day

    Total  Cyanide  (Cn)
    Total  Cadmium (Cd)
    Total, Chromium (Cr, T)                .                        .  '•
    Total  Copper (Cu)
    Total  Iron (Fe)
    Total  Lead (Pb)
    Total  Mercury  (Hg)
    Total  Nickel (Ni)
    Total  Silver (Ag)
    Total  Zinc (Zn)
    (Others)

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

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

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

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                                                                Sample
    List Users           Parameter      Units     Frequency      Type       Notes
c.
(Others)
E.  RETAINER
The USEPA, Region V and the State retains the right .to take legal action
against the industrial user and/or the Control  Authority for those cases
where a permit violation has occurred because of the failure of an .industrial
user's compliance with applicable pretreatment  standards and requirements.

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        REGION VI




(Region VI Model Language)

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                                       PART  III

                                       Page  14
A.  OTHER REQUIREMENTS
     1.  Contributing  Industries  and Pretreatment Requirements

        a.   The  permittee  shall  operate  an  industrial pretreatment  program in
accordance with  section  402(b)(8) of the Clean Water Act  and the General
Pretreatment Regulations  (40 CFR Part 403).  The program  shall  also  be
implemented  in accordance  with  the approved POTW pretreatment  program submitted
by  the permittee which  is  hereby incorporated by reference.

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

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

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

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

             2.   Compliance action taken  by  the City, and

             3.   Current  compliance status.

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

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Westminster, Colorado

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                      NATIONAL PRETREATMENT PROGRAM
                         MEMORANDUM OF AGREEMENT
                               BETWEEN THE
                      CITY OF WESTMINSTER, 'COLORADO
                                 AND THE
        UNITED STATES ENVIRONMENTAL PROTECTION  AGENCY,  REGION  VIII
    The United States Environmental Protection Agency,  -Region VIII (hereinafter,
the "EPA") hereby approves the City of Westminster's (hereinafter, the "City")
Pretreatment Program described in the City's November 15,  1S82 sufcmittal
document entitled "Industrial Pretreatment Program", as meeting the requirements
of Section 307 (b) and (c) of the Clean Water Act (hereinafter, the "Act") and
regulations promulgated thereunder.  Further, to define the responsibilities for
the establishment and enforcement of National Pretreatment Standards for
existing and new sources under Section 307 (b) and (c)  of  the Act, the City and
EPA hereby enter into the following agreement:

    1.
      he City has primary responsibility for enforcing  against  discharges
2.    The City shall implement the Industrial  Pretreatment  Program in
     accordance with the legal authorities,  policies,  and  procedures
     described in the permittee's Pretreatment Program document  entitled,
     "Industrial Pr=tre=tment Program",  November  19£2.   Such  program  commits
     the City to do the following:

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

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

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

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

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

3.    The City shall provide the  United States Environmental Protection
     Agency and the State of Colorado with an annual  report briefly
     describing the City's pretreatment  program activities over  the previous
     calendar year.  Such report shall be submitted no later  than March  2£tn
     of each year and shall include:

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

     b.   A descriptive summary of the  compliance  activities  including
          numoer of major enforcement  actions,  (i.e.,  administrative orders,
          penalties, civil  actions, etc.).

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

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

4.    Pretreatnent standards (40 CFR 403.5)  prohibit the introduction of the
     following pollutants into the waste treatment system from any source  of
     ncndomestic discharge:

     a.   Pollutants which  create a fire or explosion  hazard  in the publicly
          owned treatment works (POT-.');

     bv   Pollutants which  will cause  corrosive structural damage to the
          P07W, but in no case, discharges  with a pH lower than 5.0;

     c.   Solid or viscous  pollutants  in amounts  which will cause
          destruction to the flow in'sewers, or other  interference with
          operation of the.POTW;

     d.   Any pollutant, including oxygen demanding pollutants (8005,
          etc.), released in a discharge at such  a volume or  strength as to
          cause interference in the POTW; and,

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

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

The Agreement contained herein shall be incorporated,  as soon as possible,
in the City's NPCE5 permit.  Noncompliance  with any of these  requirements
shall  be subject to the same enforcement procedures as any permit violation.

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

    Nothinc in this Agreement shall be construed  to 'limit the authority of  the
 . S. EPA to take action pursuant to Sections 204, 208,  301,304,  305,  307,  30=,
 09, 311, &02, 404, 405, 501, or other Sections of the Clean Water Act  of 1S77
 •;•; iicr 1 ? = 1 e>t CPH^ .
u.
309,
(33
    This Agreement will become effective upon the final'date of  signature.


    City of Westminster, Colorado      U.S. Environmental  Protection  Agency
                                                     Region VIII
3y	   By_
    State of- Colorado Department of Health
        Water Quality Control Division
By_

Date

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State of South Dakota

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                                                      PART  III

                                                      Page  17 of  19
                                                      Perrsic No.:  SD-002257i
1.    The-permittee has been delegated  primary  responsibility for enforcing
     against discharges prohibited by  iO  C??. 
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                                                      PART III

                                                      Page 13 of 19
                                                      Persic No. :   SD-OG23574

CT"£Z." ?.£CUI?ZXi:~S (Continued)

Industrial ?retreat~er.t Program (Cor.tir.ued)

     d.   .A description of all substantive changes r.ace to the permittee's
         pretreatment prograa description referenced in paragraph 2.  Sub-
         stantive changes include,  but are not liaited to, any change in
         any ordinance, aajor modification' in the program's administrative
         structure or operating agreement(s) , a significant reduction in
         acnitoring,  or a change in the method,of funding the program.

4.    Pretrsataent standards (40 C73. -03.5) prohibit the introduction of the
     following pollutants into the waste treatment systea frcn ar.v source
     of  r.cndocestic discharge:

     a.   Pollutants which create a fire or explosion hazard in the publicly
         cvmed treatment works (P07V);
                                                      l
     b.   Pollutants which will cause corrosive structural daaage to  the ?C~«_,
         but in no case, discharges w_i_th a pK lower than 5.0;

     c.   Solid or viscous pollutants in amounts which will e.ause destruction
         to the flow in sewers, or" other interference wich operation of the
         P07W;

     d.   Any pollutant, including oxygen denanding pollutants  (30D5, etc.),
         released in a discharge at such a volume or strength  as to  cause
         interference ia the POT**; and,

     e.   Heat in amounts which will inhibit biological activity in  the
         PQTW, but in no case, heat in such quantities that  the  influent
         to the sewage treataent works exceeds 10^°?  (iO°C).

5.   In addition to the general limitations expressed in paragraph  -. above,
     applicable National Categorical Pretraatnent Standards  =ust be  raec by
     all industrial users of the POTW.  These standards are  published in
     the Federal Regulations at 40 CT3. 405 et. seq.

6.   The perait issuing authority retains the right to take  legal  action
     against the industrial user and/or the POTV -for  those  cases where  a
     permit violation has occurred because of the failure of  an industrial
     user to aeet an applicable pretreataent standard.

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        REGION IX




(Region IX Model Language)

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                             Pretreatmsnt of Industrial Hastewaters


a.  The permittee shall be responsible for the performance of all pretreatment  requirements
    contained in 40 CFR Part 403 and shall ba subject to enfcrescent actions, penalties,
    fines and other remedies by the U.S. Environmental Protection Agency  (EPA), or
    other appropriate par-ties, as provided in tha Clean V&ter Act/ as' amended  (33 USC
    1351 et SSQ.) (hereafter "Act").  Tha permittee's Approved POTW Pretreatmant Program
    is hereby made an enforceable condition of this permit.  EPA nay initiate enforcement
    action against an industrial user for ncnccnpliance with applicable standards and
    requirements as provided in the Act.

b.  The permittee shall enforce tha requirements promulgated under sections  307(b),
    307(c), 307(d) and 402(b) of tha Act.  The permittee shall cause industrial users
    subject to Federal Categorical Standards to achieve compliance no later  than the
    date specified in those requirements or, in tha case of .a new industrial user,
    upon cCToencCTent of the discharge.

c.  The permittee shall perform the pretreatment functions as required in 40 CFR Part
    403 including, but not limited to:

    (1)  Implement the necessary legal authorities as provided in 40 CFR  403.8(f)(l);

    (2)  Enforce the pretreatzrsnt requirements under 40 CFR 403.5 and 403.6;

    (3)  implement the' programmatic functions as provided in 40 CFR 403.8(f)(2); and

    (4)  Provide the requisite funding and personnel to implement the pretreatment
         program as provided in 40 CFR 403.8(f)(3).

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

    (1)  A summary of analytical results from representative, flow-prcporticned, 24-hour
         composite sampling of the POTW's influent and effluent for those priority
         pollutants known or suspected to be discharged by industrial users. Sludge
         shall be saspled during the fvtm 24-hour period and analyzed for the same pollu-
         tants as the influent and effluent sapling and analysis.  The sludge  analyzed
         shall ba a composite sample of a minimum of twelve discrete samples taken at
         equal time intervals over the 24-hour period.  Wastewater and sludge sampling
         and analysis shall be performed a minimum of     [FRSCCENCY]       The permittee
         shall also provide any influent, effluent or sludge monitoring data for ncnpricrit
         pollutants which the permittee believes may be causing or contributing to
         interference, pass through or adversely impacting sludge quality.

    (2)  A discussion of upset, interference, or pass through incidents,  if  any, at  tr/e
         'PCFW treatment plant which the permittee knows or suspects vere  caused by
         industrial users of the POTW system.  The discussion shall include  the reasons
         why the incidents occurred, the corrective actions taken and, if known, the

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     nans of  tha industrial  user(s)  responsible.  The discussion  shall also incluoi
     a review of tha applicable  pollutant  limitations to  determine whether any
     additional limitations,  or  changes  to existing requirements,  may  be  necessary
     to prevent pass through and violations  of  state water quality standards,
     interference with the operation of  the  POTW, or interference with disposal
     of sewage sludge.

(3)   The cumulative nuober of industrial users  that the peraittee has  notified
     regarding Baseline Jtenitcring Reports and  tha cumulative number of industrial
     user responses.

(4)   An updated list of tha  permittee's  industrial users, or  a list of deletions
     and additions keyed to  a previously submitted.list.  The permittee shall
     provide  a brief explanation for each  deletion.  The  list shall identify the
     users subject to Federal Categorical  Standards by specifying which set of stand-
     ards are applicable.  The list shall  indicate which  categorical industries, or
     specific pollutants from each industry, are subject  to  local limitations  that are
     more stringent than the Federal Categorical Standards.   The  permittee shall also
     list ths nancategcrical industrial  users that are subject cnly to local discharge
     limitations.  The peraittee shall characterize the compliance status of each
     industrial user by employing the following descriptions:

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

     (B)  Consistently achieving compliance;

     (C) •Inconsistently achieving compliance;

     (D)  Significantly violated apolicable  pretreat=nt  requirements  as defined
          by  40 CFR 403.8(f)(2)(vii~);

     (E)  On  a compliance schedule to achieve compliance  (include the  date final
          compliance is required);

     (F)  Not achieving compliance and not on a compliance schedule;

     (G)  The permittee dees not know the  industrial user's  compliance status.

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

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

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

     (B)  The conclusions or results from  ths inspection  or  sampling of each
          industrial user.

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 (6)  A suonary of ths cccpliance/enforcsment activities during the past year.  The
      sunnary shall inclucia the names of ths industrial users affected by ths
      following actions:

      (A)  Karnir.g letters or notices of violation regarding the industrial users'
           apparent nonparslianas with Federal Categorical Standards or local discharge
           limitations.  For each industrial user identify whether tha apparent
           violation ccncarned tha Federal Categorical Standards or local discharge

      (B)  Administrative Orders regarding the industrial users' noncoapliance
           with Federal Categorical Standards or local discharge limitations.  For
           each industrial user identify whether the violation concerned the Federal
           Categorical Standards or local discharge limitations;

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

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

      (E)  Assessment of rccnetary penalties.  For each industrial user identify the
           amount of the penalties;

      (F)  Restriction of flow to the POTW; or

      (G)  Disconnection from discharge to the PCTW.

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

 (8)  A sunnary of the annual pretreatasnt budget, including the cost of pretreatment
      program functions and equipment purcnases.

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

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

Explicate signed copies of these reports shall be submitted to the Regional Administrate
and the State at the following addresses:

            Regional Administrator
            U.S. Environmental Protection Agency
            Region 9 Attn: W-5-1                          [STATS ADORESS)
            215 Frcsaont Street
            San Francisco, California  94105

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        REGION X




(.Region X Model Language)

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                                                     (example ppe^reatment  langua
                                                     for Regior/X  POTW  permits)

     M.   Pretreatment Program Requirements

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

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

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

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

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

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

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

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          3.   Whenever,  on  the basis of Information provided to the Water
Division Director,  U.  S.  Environmental Protection Agency, 1t has been
determined that any source  contributes pollutants 1n the permittee's
treatment works 1n  violation  of  subsection  (b),  (c) or  (d) of Section 307
of the Clean  Water  Act,  notification' shall  be provided  to the permittee.
Failure by the permittee to commence an appropriate enforcement action
within 30 days of this notification may result In appropriate enforcement
action against the  source and permittee.

          4.   Pretreatment  Program Sampling Requirements

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

          Daily samples of  each  shall be  24 hour composited and shall be
analyzed and reported seperately.  Where  composite sampling 1s not
feasible for a particular pollutant, 3 grab samples over a 24 hour period-
are acceptable.  Whenever possible, periods of sampling should be
representative of a wet weather  and dry weather  period.

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

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

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

          5.   Pretreatment  Report

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

                    (1)  An updated industrial survey,  as appropriate.

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

                    (1ii)  Status of Program Implementation to include:

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

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

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

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

                         e.    Listing  of industrial users notified of
                         promulgated pretreatment standards and/or local
                         standards as  required in 40 CFR Part
                         403.8(f)(2)(1ii).

                         f.    Listing  of industrial users issued
                       .  (industrial discharge permits, contracts,
                         industrial waste acceptance forms).

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

                         h.    Planned  changes in the implementation
                         program.

                    (1v)  Status of enforcement activities to include:

                         a.    Listing  of industrial users, who failed to
                         submit baseline reports or any other reports as
                         specified in  40 CFR 403.12(d) and 1n Chapter	
                         Section        of the (City/District) code.

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

                        c.   Surmary of enforcement activities taken or
                        planned against non-complying industrial users.
                        The permittee shall provide public notice of
                        significant violators as outline in 40 CFR Part
                        403.8(f)(2)(1i).

          2.    The  permittee shall notify the EPA 60 days prior to any
          major proposed changes 1n  its existing sludge disposal practices,

          (Optional)   The  permittee  shall provide Information as required
of 40 CFR Part 403.12  (1)  and  (j)  regarding removal allowance.

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

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20-460
   *\'
PRO*
                        MAY 3   1935
                                                        oilier oi--1
                                                         AMUOMI'I IA\CE
                                                           MOMTORIMi
  MEMORANDUM

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

  FROM:     Glenn L. Unterberger
            Associate Enforcement Counsel
              for Water           x-\
                                   /
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                              - 2 -
interpretation below, but until a new definition is promulgated,
determinations of whether a particular discharge constitutes
interference or pass through should be made case by case.

Background

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

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

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

Interference

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

     EPA believes that an agency responsible for enforcement
should find an interference violation where it can show that
discharges from an industrial user, either alone or in combination
with discharges from other users, adversely affect the POTW in such
a way as >to cause it to violate its NPDES permit or adversely
affect the way the POTW chooses to process, use or dispose of  its
sludge.  Such adverse effects include those which increase the
magnitude or the duration of an NPDES violation or prevent the
POTW from using or disposing of its sludge in accordance with
all legal requirements applicable to whatever disposal method  i-t
selects.  The agency needs to first ensure that the problem was
not caused entirely by inadequate operation and maintenance at
the POTW, since, as the Third Circuit noted, Congress did not
intend to require pretreatment for compatible waste as a substitute
for adequate municipal waste treatment works.  NAMF v. J5PA, supra
at 640-641.  The industrial discharge to the POTW may consist of
conventional, non-conventional or toxic pollutants:  each type
under some circumstances can affect a POTW or its operation.  As
indicated by the Third Circuit, the agency must demonstrate a
causal link between the industrial discharge in question and the
adverse effect - in particular, that the pollutant discharged
caused, in whole or in part, the NPDES violation or sludge problem
observed.

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

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

Pass Through

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

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

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

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

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

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

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                                                                  VLB. 14.
"Obtaining Approval of Remaining Local Pretreatnent Prograais—Second Round
Referrals of the Municipal Pretreatnent Enforcement Initiative", dated June
12, 1985. (Categorization of POTWs within Regions excluded}

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON, D.C.  20460
                          JUN 1 2 1985
MEMORANDUM
SUBJECT!
FROM!
TO:
Obtaining Approval of Remaining Local Pretreatment
Programs — Second Round Referrals of the Municipal
Pretreatment Enforcement Initiative
                                   rator
                                   Water
Courtney M. Price
Assistant Administrator for Enforcement
  and Compliance Monitoring
Henry L. Longest
Acting Assistant

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

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

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

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

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

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

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

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

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

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

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

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

Attachments

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

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                             AGENDA


         Municipal Pretreatment Enforcement Initiative

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

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                   PRETREATMENT PROGRAM APPROVAL STATUS
REGION
DATE FORM COMPLETED
                    REGIONAL CONTACT

                         FTS NUMBER
   POTW NAME
       DEFICIENT
    PROGRAM ELEMENTS*
(check,  describe below)
REFERRAL
CANDIDATE
 AT THIS
  TIME
IF NOT REFERRING,
DESCRIBE REASONS
INCLUDE SCHEDULED
SUBMITTAL DATE,
APPROVAL DATE
                                       YES
                                       NO
                                       YES
                                       NO
                                       YES
                                       NO
                                       YES
                                       NO
                 rKEY:
                     1 = INDUSTRIAL WASTE SURVEY
                     2 = LEGAL AUTHORITY
                     3 = TECHNICAL ELEMENTS/LOCAL  LIMITS
                     4 = COMPLIANCE MONITORING
                     5 = PROCEDURES
                     6 = RESOURCES

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

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

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

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

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

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

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

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

Pretreatment proararn is on public notice.

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


REGION

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


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


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


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

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

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

VII
0
0
0
, o
0
1
0
1
0
0
0
0
0
0
0
1
0
1
0
0
0
0
0
0
0
2
0
1 2
3 0
4 0


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

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

X
0
0
0
0
0
0
0
0
0
0
0
0
0
0«
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0


TOTALS

94
51
25
7
11
126
54
24
2
46
36
33
1
0
2
72
56
7
1
8*
133
51
8
14
60
46]
245
65
24,
0 127'
i

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

-------


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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                   JUN2T
"EMOPAHDUM

SUBJECT:  Applicability of Cateqorical Pretreatment Standards to
          Industrial Hsers of Non-Discharaing POTWs

FROM:     William P. niamond, Chief
          Proaram Development Branch

TO:       Permit Branch Chiefs, Regions I-X


     At the recent National Pranch Chiefs Meeting, a question was
raised reqardinq the applicability of categorical pretreatraent
standards promulgated by FPA pursuant to section 307 (b) of the
Clean Water Act ("CWA") to industrial facilities sending their
wastewaters to POTWs that do not discharge to waters of the
United States (hereafter referred to as "non-discharging POTWs").
Because there is no "discharoe of pollutants" (as defined in
section 502(12) of the CWA) frow these POTWs, they are not
required to obtain NPDES permits; nor are they subject to the
requirement, in section 402(b)(8) of the CWA, to develop a
local pretreatment program, since this requirement is tied to
the existence of an NPDES permit.  As explained below, however,
industrial users discharging into these POTWs must nonetheless
comply with applicable categorical pretreatwent standards*
This memorandum also discusses how these industrial users can be
requlated in the absence of a federally required local pretreatment
program.
           th« CHA, categorical pretreatment standards apply to
industrial. «••*•. of* all POTWs, including those that do not discharge
to wattrw of tho United States.  Section 307(b) of the Act directs
PPA to proiniilfatd pretreatment standards "to prevent the discharge
of any polltitant through treatment works (as defined in section
212 of this Act) which are publicly owned, which, pollutant inter-
feres with, passes through, or otherwise is incompatible with such
works."  The definition of "treatment works" in section 212 of the
CWA is not limited to facilities that discharge into waters of the

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                              - 2 -
United Stats* and in fact makes explicit reference to land-based
system* (•«• S212.{.2).(A)).  Moreover, the statutory ooal of.
preventing interference with the treatment works, which includes
protection of th« resulting sjudqe from contamination that would
limit disposal alternatives, _/ is applicable to all POTWs,
regardless of whether there is any discharge to waters of the
United States.

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

**/  Althouoh GPA nay not issue permits to indirect discharqers,
the Agency may require them to comply with additional reporting,
monitoring, sampling, and other information reauirements beyond
those contained in the General Pretreatment Regulations, under
section 308 of th* CWA.  See Conf. Pep. No. 92-1236, 92d Cong.,
2d S«B»*  130 (September 2fl, 1972), reprinted in A Legislative
History- of the Water Pollution Control Act Amendments of 1972,
volume 1 at 313;

***/  For example, California has a regulatory provision that
requires non-discharqinq POTWs with a design flow of 5 mgd or
more to develop pretreatment proqrams.  Facilities with a design
flow of less than 5 mgd may be required to develop proqrams as
deemed appropriate.  23 CAC 52233.

****/  in California, for instance, these proqrams are reviewed
for consistency with §403.fl(f) of the General Pretreatment
Regulations, which includes a requirement regarding enforcement
of cateqorical standards.

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     I hope this memorandum answers your questions on this subject
If you have any further Questions or comments, please call me at
(FTS) 426-4793 or have your staff contact Hans Bjornson at (FTS)
426-7033.

cct  Rebecca Banner
     Martha Prothro
     Colburn Cherney


bcc:  Jim Gallup
      Geoff Grubbs
      Program Development Branch


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

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

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United Stales
Environmental Protection
Agency
Permits Division EN-336
Washington, DC 20460
                                   July 1985
Water
Credit Applications

-------
 Table  of  Contents

                                                                    Page

 i.   INTRODUCTION	   1-1

 j.   BACKGROUND	   2-1

 ?ART I:  GUIDANCE FOR DEVELOPING  A REMOVAL  CREDITS  APPLICATION

 }.   REMOVAL  CREDIT APPLICATION REQUIREMENTS	   3-1

     3.1   LIST OF POLLUTANTS	   3-5

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

     3.2   CONSISTENT REMOVAL DATA	   3-7

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

     3.3   CALCULATION OF REVISED  DISCHARGE  LIMITS	   3-12

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

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

          3.3.2  Multiple Treatment Plants	   3-15

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

          3.6.1  NPDES Compliance Demonstration	   3-30

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

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

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

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Table of Contents  (Continued)
                                                                    Page

5.   SAMPLING AND ANALYTICAL REQUIREMENTS	  5-1

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

PART II:  GUIDANCE FOR THE  APPROVAL AUTHORITY

6.   REVIEW OF REMOVAL CREDIT APPLICATIONS	  6-1

     6.1  GENERAL	  6-1
     6.2  PROCEDURAL REQUIREMENTS	  6-2
     6.3  CONSISTENT REMOVAL RATE.	  6-2
     6.4  SLUDGE MANAGEMENT CERTIFICATION	  6-6
     6.5  NPDES PERMIT CERTIFICATION	  6-8
     6.6  NPDES PERMIT MODIFICATIONS	  6-9
     6*7  REVIEW OF POTW PROPOSALS TO  USE ALTERNATE METHODS OF
          DEMONSTRATING CONSISTENT REMOVAL	  6-10

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

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

7.   MODIFICATION OR WITHDRAWAL OF REMOVAL CREDITS	  7-1

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


                                 APPENDICES

A  -  REMOVAL CREDIT PROVISION FINAL RULE

B  -  DETECTION LEVELS FOR  PRIORITY POLLUTANTS

C  -  MODEL REMOVAL CREDIT  APPLICATION

D  -  SAMPLE NPDES PERMIT MODIFICATION LANGUAGE FOR
      REMOVAL CREDITS

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List of Tables
Table

3.1   THRESHOLD  CONCENTRATIONS OF TOXIC POLLUTANTS THAT COULD
      INHIBIT BIOLOGICAL TREATMENT PROCESSES                         3-32

3.2   WATER QUALITY CRITERIA                                         3-35

3.3   BIBLIOGRAPHY                                                   3-41

6.1   SUMMARY OF MINIMUM PERCENT REMOVALS ACHIEVED BY
      SECONDARY  TREATMENT                                            6-4

6.2   MAJOR FEDERAL REGULATIONS RELATING TO SEWAGE SLUDGE DISPOSAL   6-7

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

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
  T                    WASHINGTON. D.C. 20460

 °
                         AU 6-51985
                                                          E CF
                                                       WATifl
MEMORANDUM
SUBJECT:  I«ocal Limits Requirements for POTW
        ''Pnetreatment Programs
FROM:     Rebecca W. Hanmer, Director
          Office of Water Enforcement and Permits (EN-335)

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

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

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

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

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

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

II.  Minimum Requirements for Local Limits

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

             cadmium                       lead
             chromium                      nickel
             copper                        zinc

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

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

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

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

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

 III.   Application  of the Minimum Local Limits Requirement

 A.  Unapproved Programs

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

 B.  Approved Programs

     If any POTW program has already been approved without the
 analysis of the impact of the pollutants of concern and adoption
 of local limits, the Approval Authority should immediately require
 the POTW to initiate an analysis as described above and adopt
 appropriate local  limits.  This requirement should  be incorporated
 in the POTW's NPDES permit as soon as feasible.  Where a POTW has
 previously adopted local limits but has not demonstrated that
 those limits are based on sound technical analysis, the Approval

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 authority  should  require the POTW to demonstrate  that  the  local
 limits  are sufficiently stringent to protect  against pass-through,
 interference and  sludge contamination.  POTWs which cannot
 demonstrate that  their Limits provide adequate protection  should
 be  required to revise those limits within a specific time  set
 forth  in a permit modification.

 IV.  Local Limits to Control Additional Toxic Pollutants

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

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

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

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

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

VI.  Control of Conventional Pollutants

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

VII.   Deadline for Industrial User Compliance with Local Limits

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

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

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

VIII.  Conclusion

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

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

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

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

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                            TABLE OF CONTENTS


Chapter
                                                                     Page

1.  INTRODUCTION	   1-1

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

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

    2.1  AFFECTED INDUSTRY	   2-1
    2.2  PRETREATMSNT STANDARDS FOR THE IRON AND STEEL MANUFAC-
         TURING CATEGORY	   2-1
    2.3  RELATIONSHIP TO ELETROPLATING AND M2TAL FINISHING	   2-21
    2.4  POLLUTANTS EXCLUEED FROM REGULATION	   2-21
    2.5  COMPLIANCE DATES	   2-21

3.  TREATMENT TECHNOLOGIES	   3-1

    3.1  TREATMENT OF COKEMAKING WASTES	   3-1
    3.2  TREATMENT OF SINTERING WASTES	   3-2
    3.3  TREATMENT OF IRONMAKING WASTES	   3-2
    3.4  TREATMENT OF STEELMAKING WASTES	   3-3
    3.5  TREATMENT OF VACUUM DEGASSING WASTES	   3-4
    3.6  TREATMENT OF CONTINUOUS CASTING WASTES	   3-4
    3.7  TREATMENT OF HOT FORMING WASTES	   3.5
    3.8  TREATMENT OF SALT BATH D2SCALING  WASTES	   3.6
    3.9  TREATMENT OF ACID PICKLING WASTES	   3.7
    3.10 TREATMENT OF COLD ROLLING WASTES	:...   3.7
    3.11 TREATMENT OF ALKALINE CLEANING WASTES	   3.8
    3.12 TREATMENT OF HOT COATING WASTES	   3.8

4.  REQUIREMENTS OF THE GENERAL PRETREATMSNT REGULATIONS	   4.1

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

         4.3.1  Baseline Monitoring Reports	• •   4-2
         4.3.2  Report on Compliance	   4-4
         4.3.3  Periodic Reports and Continued Compliance	   4-4
         4.3.4  Notice of Slug Loading	   4-5
         4.3.5  Monitoring and Analysis to Demonstrate
                  Continued Compliance	   4-5
         4.3.6  Signatory Requinsments for Industrial Users
                  Reports	   4-5
         4.3.7  Recordkeeping Requirements	   4-5

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                     TABLE  OF  CONTENTS   (Continued)


Chapter

     4.4  APPLICATIONS  OF THE COMBINED WASTESTREAM FORMULA          4-6

          4.4.1  CWF Conditions	   4-7
          4.4.2  Monitoring  Requirements  for  Industrial Users
                 Using  the CWF	   4-7
          4.4.3  Application of the CWF	   4-7

     4.5  REMOVAL CREDITS	   4-11
     4.6  FUNDAM3NTALLY DIFFERENT  FACTORS VARIANCE	   4-12
     4.7  LOCAL LIMITS	   4-12

     REFERENCES	   R-l

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                                LIST OF TABLES







Table                                                                Page




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




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




2.3  POLLUTANTS EXCLUDED FROM IRON AND STEEL REGULATION	  2-22




4.1  COMBINED WASTESTREAM FORMULA	  4-8




4.2  COMBINED WASTESTREAM FORMULA EXAMPLE CALCULATION	  4-9

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

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

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                              TABLE OF CONTENTS



                                                                      Page

1.   INTRODUCTION	   1-1

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

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

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

     2.1  INTRODUCTION	   2-1

     2.2  USE OF EQUIVALENT MASS LIMITS	   2-1

     2.3  USE OF EQUIVALENT CONCENTRATION LIMITS	   2-3

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

     2.5  PROHIBITION AGAINST DILUTION TO ACHIEVE COMPLIANCE	   2-6

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

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

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

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

          2.8.1  Flow Measurement and Flow Estimation	   2-15

     2.9  CHANGES IN PRODUCTION AND FLOW RATES	   2-17

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

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.3.   USE OF THE COMBINED WASTESTREAM FORMULA	   3-1

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

          3.4.1  Combined Wastestream Formulas	   3-6

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

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

                  3.4.3.1  IU Responsibilities	   3-13

           3.4.4  Example Use of the CWF	   3-14

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

           3.4.5  Comparison of Local Limits  and Categorical
                  Standards	   3-28

                  3.4.5.1  Example - Integrated Facility Calculations
                           Comparing Categorical Standards and Local
                           Limits	  3-29

4.   REFERENCES	  4-1
APPENDIX A     PUBLICATIONS AVAILABLE FROM THE GOVERNMENT PRINTING OFFICE
               (GPO) AND/OR THE NATIONAL TECHNICAL INFORMATION SERVICE  (NTIS)

APPENDIX B     STATUS OF CATEGORICAL PRETREATMENT STANDARDS

APPENDIX C     FLOW MEASUREMENT REFERENCES

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

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

                                      ii

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                                LIST OF TABLES
 •-1  EPA ESTIMATES OF POLLUTANT DISCHARGE RATES ACHIEVABLE
      WITH AND WITHOUT FLOW REDUCTION AS PART OF TREATMENT
      TECHNOLOGY                                                        1-4

 2-1  COMPARISON OF TYPES OF PRETREATMENT STANDARDS FOR
      CATEGORICAL INDUSTRIES                                            2-2

 2-2  APPLICATION OF PRODUCTION-BASED STANDARDS                    "     2-4

 2-3  COMPARISON OF PRODUCTION QUANTITIES SPECIFIED IN PRODUCTION-
      BASED CATEGORICAL PRETREATMENT STANDARDS                          2-9
                                LIST OF FIGURES


Figure

2.1  TIERED APPROACH TO USING EQUIVALENT MASS LIMITS                   2-22

3.1  APPLICABILITY OF THE COMBINED WASTESTREAM FORMULA                 3-5

3.2  TYPICAL PORCELAIN ENAMELING ON STEEL OPERATION                    3-12

3.3  PROCESS FLOW SCHEMATIC FOR EXAMPLE IU                             3-21

3.4  EXAMPLE IU WASTEWATER FLOW DIAGRAM                                3-22

3.5  EXAMPLE FLOW SCHEMATIC OF EXAMPLE INTEGRATED
     FACILITY CATEGORICAL IU                                           3-30
                                     ill

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

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 .f*
*&
                     United State*
                     Environmental Protection
                     Agency
Permits Division  EiJ-335
Washington, DC  20460
                     Water
                      (  .Atrim&*\{l "* )
                      1  Oi23  j
       ganics  IT j  0}
                                                              •ViOS
                            .^ii«^T  ifflMi

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                       TABLE OF CONTENTS
Chapter         .                                               Page

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

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

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

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

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

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

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

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

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

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

APPENDIX D:  Example Toxic Organic Management Plan 	   D-l

APPENDIX E:  40 CFR Section 465.03:  Monitoring and Reporting
              Requirements 	   E-l
                               11

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                                                                VLB.21,
"GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION OF APPROVABLE
PRETREATMENT PROGRAMS", dated September 20,  1985.
                                                                      Rfc1

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                          SEP 2 0 1985

                                                      OFFICE OK ENFORCEMENT
                                                        AND COMF1 |.\NCT.
                                                         MONITORING
MEMORANDUM


SUBJECT:  Guidance on Obtaining  Submittal  and  Implementation
          of Approvable Pretreatment Programs   '
FROM:     Glenn L. Unterberger *£.,_ /
           ssociate Enforcement Counsel
            for Water
            /U'Cc-«v  ) -}-Zx>v> r>-o»A_-
          Rebecca Hanmer, Director
          Office of Water Enforcement and Permits

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


     Attached is a guidance memorandum on obtaining  POTW
pretreatment program submit.tal and implementation.   The guidance
confirms and elaborates on Agency enforcement and permitting
policy positions which we already have discussed at  our national
meetings, and which we already are largely  implementing in  the
context of meeting FY85 SPMS commitments and through EPA's
POTW Pretreatment Program Enforcement Initiative.  The major
points which this guidance reaffirms are:

     - that EPA is in the strongest position to bring an
       enforcement action against a POTW for failure to
       obtain or implement an approved pretreatment  program
       when there is a requirement to do so in the POTW's
       permit;

     - that POTW permits which do not contain these  permit
       requirements should be modified or reissued as
       quickly as possible;

     - that in a limited number of cases, EPA can consider
       the possibility of an enforcement action to require  a
       POTW without a modified permit to obtain or implement
       an approved pretreatment program, and

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

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

Attachments

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

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       GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION
              OF APPROVABLE PRETREATMENT PROGRAMS
Summary

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

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

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

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

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                             -  2  -
 Background

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

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

.Enforcing a Permit  Requirement to  Develop a Pretreatment Program

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

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

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

      An EPA enforcement action for failure.. _to_oi>.t a in... pro gram
 app.roy.al as required by a POTW's permit is taken under Section
- 3Q9L(j2_L_Ior failure.....of the PQTW to comply. .wLth requirements in
 its permrtT~OTa^T were established under authority of Section
 402(b)(8) and its implementing regulations for the purpose
 of implementing the pretreatment provisions  of Section 307.
 All such cases should result in an expeditious compliance
 schedule for  obtaining an approved program (see Attachment A),
 reporting requirements,  significant civil penalties that consider
 economic benefit and address the gravity of  the violation,
 and any provisions necessary to ensure program implementation.

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

 Requiring Development and Implementation of  a Local Pretreatrr.ent
 Program Through Permit Modification or Reissuance

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

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

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

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                            - 4 -
at 40 C.F.R. Parts 122 and 124 to require the POTW to obtain
approval of and implement a pretreatment program.  The regulations
specifically identify the incorporation of a requirement to
develop an approved POTW pretreatment program as an appropriate
"cause" for permit modification or reissuance.   If the Region
chooses to modify the permit, only the pretreatmj2nt_._r_£_qu.irem£n-t
need be subject to comment-a-nd decision.  If the Region chooses
the reissuance procedure, the entire permit is reopened and
subject to revision (40 C.F.R. §122.62^

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

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

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

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                             - 5 -
     The compliance schedule requiring program approval must
be realistic.  It should contain only enough time to accomplish
the necessary activities culminating in the submittal of an
approvable pretreatment program.  Individual factors affecting
pretreatment program development will determine the content of
the compliance schedule and the date by which the program must
be submitted.  The compliance schedule must require submittal
of an approvable pretreatment program as soon as reasonably
possible; in most cases no more than 6^ months.   A six-month
compliance period represents the usual maximum time period for
obtaining an approved pretreatment program.  If, for example,
a POTW has already completed an Industrial User survey and
a technical analysis, 60 days is generally a sufficient time
period to complete the program application.

     Once a POTWs NPDES permit has been amended by the Approval
Authority to require the POTW to obtain and implement an
approved pretreatment program,  the Approval Authority should
closely monitor the POTW's compliance and take enforcement
action promptly if the POTW falls behind schedule.
                                                              M> is
Federal Enforcement in the Absence of a Permit Requirement

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

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

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                             - 6 -
pretreatment program was an element of "appropriate relief".
Because use of Section 309(f) in this situation requires that
obtaining or implementing a pretreatment program constitute
"appropriate relief", a Region should consider carefully whether
the situation would fit that criterion in deciding whether to
bring an enforcement action under Section 309(f).  For example,
EPA will be in a stronger legal position to sustain this cause
of action where the Agency can establish by ..good evidence that
lac_k^ of a pretreatment program contri.butes to substa_nt_ia 1
industrial user nqncompliance with Federal pretreatment standards.

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

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

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

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

      A lawsuit filed against a POTW only for__fa_ilujc.e to-.aixtain
 or implement an,.approved pretreatment"program as required.by
 the POTW's NPDES permit  should be pleaded solely as a failure
''tpj5pmpl;£ with the permit provision(s) requiring program approval
-or implementation.  Failure to obtain or implement an approved
 program 'Tshou!d JioCl be pleaded as a violation of the NPIiES
 permit in -.gejiefalT ' specifically, the GoveTrnment should ensure,
 to ™ttTe"~~~extent possible,  in such an enforcement action that the
 basis for the action is  clearly articulated as a violation of
 the specific requirement l:or pretreatment program approval or
 implementation,  so that  questions regarding POTW compliance
 with permit effluent limits do not come into issue in the
 (footnote continued)

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

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                             - 8 -
initial enforcement action. 4/  This practice should be followed
whether or not a subsequent action based, on effluent violations
is contemplated.

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

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

     There is nothing inherent in such an atypical pretreatment
enforcement action that necessarily will decide any or all
issues in a subsequent effluent violation action against the
same POTW.  Indeed, in many cases, the circumstances relating
to violations of a POTW' s pretreatment program will have n'o
bearing on the circumstances surrounding a POTW's failure to
comply with effluent limits.  A careful and articulate litigation
strategy will minimize both res judicata and collateral estoppel
problems against the Government in a subsequent action against
the POTW for NPDES effluent violations. '
4/  An enforcement action under Section 309(b) or Section
    309(f) of the Act—in the absence of a corresponding permit
requirement—seeking pretreatment program submission or
implementation as "appropriate relief" should make clear to the
extent possible that the need for a local pretreatment program
is independent of the POTW's compliance with the effluent limits
in its permit.  In most cases, this argument may not be available
if the Government needs to show that the lack of a pretreatment
program is leading to POTW effluent limit violations in order to
persuade the court that requiring program approval constitutes
"appropriate relief".

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                             - 9 -
     This Guidance Memorandum is intended solely for the use
of Agency enforcement personnel.  This guidance creates no rights,
is not binding on the Agency, and no outside party should rely
on it.

Attachments

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                                                     N/
                                                     ATTACHMENT A
Compliance Schedule for POTW Pretreatment Program Approval

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

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

 (b)(l)  An evaluation by the City Attorney or a public official
         'acting in a comparable capacity,  of the legal authorities
         to be used by the permittee to apply and enforce the
         requirements  of §§307(b) and (c) and 402(b)(8) of the
         Clean Water Act,  including  those requirements delineate^-—
         in 40 C.F.R.  §403 . 8 ( f ) (1);                            '' '

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

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


2.   On or before (3 months  or less from submittal date in
    item 1., aboveT^the permittee shall submitthe following:

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

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

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

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

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

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

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

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                                                     ATTACHMENT B

SUGGESTED NPDES PERMIT LANGUAGE

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

     Under the authority of Section 402(b)(8)  of the Clean
     Water Act and the General Pretreatment Regulations
     (40 C.F.R. Part 403),  which implement the pretreatment
     provisions of Section 307 of the Clean Water Act,  the
     permittee is required to obtain approval  in accordance
     with the provisions of 40 C.F.R.  §§403.8  and 403.9,  and
     thereafter implement,  a pretreatment program.   „-.


  (for a POTW previously identified and  notified after  July 1,
   1983 that it needs a pretreatment program)

     Under the authority of Section 402(b)(8)  of the Clean
     Water Act and the General Pretreatment Regulations
     (40 C.F.R.  Part 403), which implement the pretreatment
     provisions of Section 307 of the Clean Water Act,  the
     permittee is required to obtain approval  in accordance
     with the provisions of 40 C.F.R.  §§403.8  and 403.9,  and
     thereafter implement,  a pretreatment program,  in accordance
     with the following schedule:

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

-------

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       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     WASHINGTON, D.C. 20460
                       SEP 20  1985                   (lH-ICI-t)FF\KORn-MVM
                                                     AMM'OMIM I-\S( t
                                                      MOMlOKINd
MEMORANDUM

SUBJECT:  Choosing Between Clean Water Act §309(b) and §309(f)
          as a Cause of Action in Pretreatment Enforcement Cases
FROM:     Glenn L. Unterberger
          Associate Enforcement Counsel
            for Water

TO:       Regional Counsels, Regions I-X


Summary

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

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

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

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

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                             -2-


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

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

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

Statutory Provisions Authorizing Pretreatment Enforcement Actions

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

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

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                              -3-
     Section 309(d) of the Clean Water Act is the civil
penalty provision of the Act; i.e., violators of specified
sections of the Act are subject to a statutory civil penalty
not to exceed $10,000 per day for each violation of those
sections:

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

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

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

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

     Legislative History of §309(f)

     Section 309(f) was added to the Act as .part of the 1977
amendments. I/  It was added during the Conference Committee as a
substitute for the original §309(f) contained in the Senate bill,
S. 1952; §309(f) in the Senate bill bore no resemblance to the
substitute §309(f) adopted at Conference. j2/ In the House bill,
H.R. 3199, there were no pretreatment amendments.  Therefore,
there is no legislative history in the House or Senate committee
hearings or in the House or Senate committee reports accompanying
the 1977 amendments regarding this subsection of §309.

     The Conference Report of the 1977 amendments states only
that new subsection (f) was added to §309. 3/  The discussion of
new subsection (f) in the Conference Report is limited strictly
I/  It should be noted that §307(d) and §309(b) and  (d) were
    added to the Clean Water Act as part of the 1972 Clean Water
Act amendments.  It is apparent from the legislative history of
the 1972 amendments that §309(b) was contemplated as sufficient
authority to enforce the pretreatment provisions of  the Act.
See, S. Rep. No. 92-1236, 92d Cong., 2d Sess. 131 (1972),
reprinted ir\ Rep. No. -93-1, Committee on Public Works, 93d
Cong., 1st Sess., A Legislative History of the Water Pollution
Control Act Amendments of 1972, at 314 (1973), and H.R. Rep.
No. 92-911, 92d Cong., 2d Sess. 114 (1972), id., at  801.

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

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

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                              -5-


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

     The Conference Report was debated and passed by both
the House and the Senate on December 15, 1977.  The addition
of subsection (f) to §309 was not debated in either House.
Subsection (f) was mentioned by both Floor managers of the
legislation, Congressman Anderson (D-Cal.) and Senator
Muskie (D-Maine), during their extensive remarks covering
the entire 1977 amendment package. _4/

     While the remarks of Congressman Anderson and Senator
Muskie do not discuss why §309(f) was included as part of
the 1977 legislation, Congressman Anderson did state that
"The municipality has the primary responsibility to enforce
[the pretreatment]  standards ag.ainst the industries.  EPA is
not to unilaterally enforce these standards against the
industries."  It is unclear what this statement actually means
since the last sentence in §309(f) states that it does not
"...limit or prohibit any other authority the Administrator
may have...", and §309(b) was not amended in any way to prevent
its use in pretreatment enforcement against industrial users.

Choosing Between §309(b) and §309(f) — §309(b) as the Preferred
Cause of Action, and When §309(f) May Be Preferred

     Nothing in §309 itself precludes the use of subsection  (b)
rather than subsection (f) as the cause of action in a federal
pretreatment enforcement action; nor is the legislative history
of §309(f) conclusive in requiring use of subsection (f) to  the
exclusion of subsection (b).

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

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

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

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

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

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

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

-------
                              -7-
     The use of §309(f) "notice letters" would be most effective
when a POTW has an approved pretreatment program; in the absence
of an approved pretreatment program it is unlikely the POTW
will be willing and able to assure a remedy of Industrial User
violations in an expeditious manner.

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

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

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


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

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

-------

-------
                  United State.-                 Office of                    September 1985
                  frfivironm»ntal Protection         Water Enforcement Permit?
                  Auo:\ .                      W;ishingto'-,, DC 204GO

         RCRA Information On Hazardous Wastes
            For  Publicly  Owned Treatment Works
                                   TABLE OF CONTENTS


                                                                            Page

1.     Introduction	   1-1

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

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

       2.1 Hazardous Waste Determination	   2-2
       2.2 RCRA Requirements for Hazardous Waste Generators	   2-10
       2.3 RCRA Requirements for Transporters of  Hazardous Waste	'.....t..   2-18

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

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

4.     RCRA Requirements for POTWs	   4-1

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

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

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                                 LIST OF TABLES

Table                                                                       Pa9e

2.1  EP Toxicity Contaminants	   2-8
3.1  Notification Checklist	   3-8

                                 LIST OF FIGURES

Figure                                                                      Pa9e

2.1  Hazardous Waste Identification Process	   2-5

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                       United Stales              Office of Water             March 1984
                       Environmental Protection      Programs Operations IWH-5U71
                       Agency                  Washington DC 20460
>EPA             Financial  Capability
                      Guidebook
                                   TABLE OF CONTENTS

       Chapter                                                            Page


          L     Introduction

                o  Purpose of the Guidebook                                    1
                o  Guidebook Audience                                         2
                o  Approach Used in this Guidebook                              4
                o  Application and Evaluation Procedures                          4
                o  Guidebook Organization                                      7


          II.     Overview of Approach and Notes on the Preparation
                of  a Financial Capability Analysis

                o  An Overview of the Approach                                 9
                o  - Worksheet //I:   Roles and Responsibilities
                                   of Local Governments                        9
                   - Worksheet //2:   Facilities Cost Estimate                      9
                   - Worksheet //3:   Financing the Facilities                     11
                   - Worksheet //4:   Determining the Annual Costs
                                   per Household                              11
                   - Worksheet //5:   Assessing the Community's
                                   Debt History                               11
                   - Worksheet //6:   Evaluating the Community's
                                   Financial Condition                         12
                o  Notes on the Preparation of a Financial
                   Capability Analysis                                         12
                   - Obtaining the Data                                        13
                   - Estimating Needed Data                                   13
                   - Knowing Which Number to Use When
                    There's a Choice                                       .  13
                   - Recognizing the Effect of Different
                    Accounting Methods                                       13
                   - Incorporating Trend  Analysis into the
                    Financial Capability Assessment                            14
                   - Taking Account of Inflation and Economic
                    Change                                                  14
                   - Considering Overlapping Debt                               14
                   - Funding Financial Capability Analysis                        15
          01.    Financial Capability Analysis Worksheets and
                Instructions

                o  Evaluating Results of the Analysis                            17
                   - Worksheet  //I:   Roles and Responsibilities
                                   of Local Governments                       23
                   - Worksheet  #2:   Facilities Cost Estimate                     27

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           - Worksheet //3:  Financing the  Facilities                       35
           - Worksheet //4:  Determining the Annual Costs                'V7
           - Worksheet //5:  Assessing the Community's
                            Debt History                                 53
           - Worksheet //6:  Evaluating the  Community's
                            Financial Condition                           59
Appendices
       A.  Selected References                                           A-3

       B.  Glossary of  Financial Terms                                    B-3

       C.  The Calculation of  Capital Recovery Factors                   C-3

       D.  Sensitivity Analysis                                            D-3
LIST OF EXHIBITS
                                                                        Page

Exhibit  I   Integration of Financial Capability Analysis
           into the Construction Grants Process                             3

Exhibit  II  Relationship of Guidebook to Financial
           Capability Policy Facilities                                      5

Exhibit  III  Flow of Information  from Source
           Documents to  Worksheets                    .                   10

Exhibit  IV  Overlapping  Debt in  Community "A"                             16

Exhibit  V  Wastewater  Facilities Financial
           Information Sheet                                               19

Exhibit  VI  Basis for Identification of  Regional
           Costs                                                          2*

Exhibit  VII Supplemental Information  Sheet                                 52
                                      vi

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                                                                 VLB.-2 4,
"Pretreatment Compliance Inspection and Audit Manual for Approval
Authorities", dated July, 1986.  Table of Contents only.

-------

-------
            United States
            Environmental Protection
            Agency
            Office of Water
            Enforcement and Permits
            Washington, DC 20460
July 1986
x>EPA
           Wittr
Pretreatment Compliance
Inspection and Audit Manual
for Approval Authorities

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                             TABLE OF CONTENTS


                                                                       Page

1.    INTRODUCTION	    1-1

      1.1  PRETREATMENT COMPLIANCE INSPECTION (PCI)	    1-1

      1.2  AUDIT	    1-1

      1.3  ORGANIZATION OF THE GUIDANCE MANUAL	    1-2

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

      1.5  RESOURCE REQUIREMENTS	    1-3

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

      1.7  SOURCES OF ADDITIONAL INFORMATION	    1-4

2.    OVERVIEW AND BACKGROUND	    2-1

      2.1  PRETREATMENT PROGRAM AUTHORITY	    2-1

      2.2  FEDERAL REQUIREMENTS	    2-1

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

      2.3  CONTROL AUTHORITY REQUIREMENTS AND RESPONSIBILITIES	    2-7

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

3.    PCI AND AUDIT PROCEDURES	    3-1

      3.1  INTRODUCTION	    3-1

      3.2  PREPARATION	    3-1

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

      3.3  ENTRY PROCEDURES	    3-3

           3.3.1  Arrival	   3-3
           3.3.2  Presentation of Credentials	    3-3
           3.3.3  Consent	   3-3
           3.3.4  Problems with Entry or Consent	   3-3

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                                                                                       Rage

                    3.4   OPENING CONFERENCE	   3-4

                    3.5   DOCUMENTATION... -...-.	   3-4

                    3.6   TOUR OF THE POIW  (Optional)	   3-4

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

                    3.8   CLOSING CONFERENCE	   3-6

                   3.9   REPORT PREPARATION..	..."....:».   3-6

                         3.9.1  Schedule for Report Submission	   3-8

                   3.10  DATA ENTRY INTO PCS	   3-8

                   3.11  FOLLOW-UP RESPONSE TO THE CONTROL AUTHORITY	   3-8

                         3.11.1  PCI	   3-8
                         3.11.2  Audit	   3-8

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

                   4.1   CONTROL AUTHORITY BACKGROUND INFORMATION	   4-2

                         4.1.1  General Control Authority Information	   4-2

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

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

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

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

                   4.4   SUMMARY EVALUATION OF CONTROL AUTHORITY PRETREATMENT
                         PROGRAM	   4-22

                   4.5   SUPPORTING DOCUMENTATION	   4-22
                                                     ii
L

-------
                              TABLE OF CONTENTS
                                  (CONTINUED)
5    pRETREATMENT PROGRAM AUDIT CHECKLIST	  5-1

     5.1   INTRODUCTION	.,  5-1

     5.2   OVERVIEW OF THE AUDIT CHECKLIST	  5-1

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

    5.3   AUDIT CHECKLIST


                                    TABLE

    2.1  INDUSTRIES SUBJECT TO CATEGORICAL PRETREATMENT STANDARDS	  2-3
                                   APPENDICES


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

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

 APPENDIX C - POTW PRETREATMENT PROGRAM FACT SHEET

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

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

-------
i CITY,

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

-------
                         TABLE OF CONTENTS

                                                            Page


1.1  INTRODUCTION 	   1-1


2.1  INDUSTRIAL USER PRETREATMENT REQUIREMENTS 	   2-1

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


2.2  INDUSTRIAL USER SELF-MONITORIFG FREQUENCIES 	   2-12

     2.2.1  Establishing Industrial User Self-
              monitoring Frequencies 	   2-12
3.1  GENERAL CONTROL AUTHORITY IMPLEMENTATION
       RESPONSIBILITIES 	   3-1

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


3.2  COMPLIANCE MONITORING BY A CONTROL AUTHORITY 	   3-10

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

-------
3.2.4 Frequency of Compliance Monitoring
Activities 	
3.2.5 Inspection Procedures 	
3.2.6 Control Authority Sampling of Industrial

3.2.6.1 Considerations in Preparing for
Sampling Activities 	 	 	
3.2.6.2 Guidelines for Approved Analytical

3.2.6.3 Considerations in Sample Collection

3.2.7 Followup Actions in Response to Inspections
and/or Sampling of Industrial Users 	
3.3 ENFORCEMENT PRINCIPLES AND MECHANISMS 	
3.3.1 Principles of an Enforcement Management

3.3.1.1 Responsibilities, Procedures, and
Timef rames 	
3.3.1.2 Industrial User Inventory Data 	
3.3.1.3 Collect and Dispense Information 	
3.3.1.4 Conduct Sampling and Inspection
of lUs 	
3.3.1.5 Compliance Screening 	
3.3.1.6 Enforcement Evaluation 	
3.3.1.7 Formal Enforcement and Followup 	
3.3.2 Informal and Formal Enforcement Mechanisms ....
3.3.2.1 Informal Notice to Industrial User ...
3.3.2.2 Informal Meetings 	

3.3.2.4 Notices or Meetings to Show Cause ....
3.3.2.5 Administrative Orders and Compliance
Schedules 	


3.3.2.8 Civil Suit for Injunctive Relief
and/or Civil Penalties 	
3.3.3.9 Criminal Suit 	
3.3.2.10 Approval Authority and Public

3.3.2.11 Resources to Enforce the Program 	


3.4 RESPONDING TO INDUSTRIAL USER NONCOMPLIANCE 	

3.4.1 Definition of Significant Noncompliance (SNC) .
3.4.2 Publishing Lists of Industrial Users With



3.4.5 Factors in Selecting the Appropriate Response .
3.4.5.1 Duration of the Violation and Compli-
ance History of the Industrial User

3-17
3-19

3-20

3-21

3-22 1

3-23

3-26
3-28

3-28

3-29
3-30
3-31

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

3-42
3-42
3-43

3-44
3-45

3-46
3-48


3-49

3-49

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

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


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


LIST OF TABLES

     Table

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

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

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

     3-2  Enforcement Response Guide 	  3-57

     4-1  Annual Report Elements 	  3-68

     4-2  Pretreatment Performance Summary 	  3-70


APPENDICES

     A.  Example Reporting Procedures

     B.  Procedures for Inspections at In iustrial Facilities

     C.  Average Limitations

     D.  Reporting Requirements Currently Approved by the
         Office of Management and Budget (7/86)
                                111

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                                                                    VLB.26,
"Interim Guidance on Appropriate Implementation Requirements in
Pretreatment Consent Decrees,1* dated December 5, 1986. Attachments
excluded.

-------

-------
••* rs'"'j
     !      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D.C. 20460
                              DEC  5 I9SG
                                                         OhHCkOt- fSFORCTMFM
                                                          AMUOMPI IASO
                                                            MONITOR ING
    MEMORANDUM
    SUBJECT:   Interim Guidance on Appropriate Implementation
              Requirements in Pretreatment Consent Decrees
    FROM:     Glenn L.  Unterberger
              Associate Enforcement Counsel
                for Water

              J. William Jordan,  Director
              Enforcement Division/ OWEP

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


         This memorandum provides interim guidance for pretreatment
    program implementation provisions which should be included in
    all  future municipal pretreatment consent decrees.  This interim
    guidance should provide n&tional consistency for court-ordered
    pretreatment implementation.   This guidance may be expanded to
    include provisions  developed by the Workgroup on Local Program
    Implementation .

    Background

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

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

     2. Failure to properly implement approved programs;

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

Implementation Requirements

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

     1. Implement the approved pretreatment program.

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

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

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

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

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

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

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

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

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

Enforcement Response Procedures

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

-------
                             - 4 -
Permit Modification

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

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

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

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

-------
                                                                  VLB.27.
"Guidance for Reporting and Evaluating POTW Noncompliance with Pretreatment
Implementation Requirements", dated September, 1987. (This document is
reproduced at II.C.ll of this compendium).

-------

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

-------

-------
&EPA
       United States
       EnwonrroanoS Protection
       Agency
           Office of Water
           and Permits
           Washington. O.C. 20460
1387
Guidance Manual on the
Development and
Implementation of Local
Discharge Limitations Under
the Pretreatment Program

-------

-------
                              TABLE OF CONTENTS


Volume I

            ... .:  ,  ..-..                  .-.    .  ~~:-.-/       '    '   Page

1.   INTRODUCTION	.............. :. .-•.._..	   1-1

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

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

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

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

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

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

          1.3.2  Other Considerations Supporting Local Limits
                   Development	   1-10

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

     1.4  POTW DEVELOPMENT OF LOCAL LIMITS	   1-11

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

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

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

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

     2.1  CONCERNS TO BE ADDRESSED	   2-1

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

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

     2.2  CHARACTERIZING INDUSTRIAL DISCHARGES ............    2-9

          2.2.1  Industrial User Discharges  ............    2-9
          2.2.2  RCRA Hazardous Vastes ...............    2-12
          2.2.3  CERCLA Vastes . . . . . . . . . .... .  . . .  .  .    2-13
          7.2.4  Hauled Vastes		    2-14

     2.3  REVIEV OP ENVIRONMENTAL PROTECTION CRITERIA AND
            POLLUTANT EFFECTS DATA	    2-15

          2.3.1  Environmental Protection Criteria and
                   Pollutant Effects Data. .	    2-16

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

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

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

     2.6  TOXICITY TESTING		    2-29

      * '  2.6.1  Toxicity Reduction Evaluations (TREs)	    2-30

3.   LOCAL LIMITS DEVELOPMENT B; :HE ALLOWABLE • HEADWORDS
       LOADING METHOD	  .    3-1

     3.1  GENERAL METHODOLOGY. . . .	    3-1

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

          3.2.1  Allowable Beadvor j Loadings Based on
                   Prevention of Pollutant. Pass Through	    3-3

                 3.2.1.1  Compliance Vith NPDES •'ermit  Limits...  .  .    3-3
                 3.2.1.2  Compliance with Water Quality Limits ...    3-4

          3.2.2  Allowable Readvorxs Loadings Based on
                   Prevention of Interference with POTV
                   Operations	    3-8

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

          3.2.3  Comparison of Allowable Headvorks Loadings. ....   3-16

          3.2.4  Representative Removal Efficiency Data	   3-17

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

     3.3  PROCEDURE FOR ALLOCATING MAXIMUM ALLOWABLE           .
            HEADVORKS LOADINGS	   3-26

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

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

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

4.   LOCAL LIMITS DEVELOPMENT TO ADDRESS COLLECTION SYSTEM
       PROBLEMS	   4-1

     4.1  IMPLEMENTATION OP SPECIFIC PROHIBITIONS	   4-1

          4.1.1  Fire and Explosion	   4-1

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

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

     4.2  WORKER HEALTH AND SAFETY	    4-13

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

5.   INDUSTRIAL USER MANAGEMENT PRACTICES.	    5-1

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

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

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

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

     6.4  REGULATORY CONSIDERATIONS FOR DEVELOPING BPJ LOCAL LIMITS.    6-12

          REFERENCES                                     .

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                         .       LIST OP TABLES


Table                                                                  Page

1-1   Comparison of Features Associated With Categorical
        Standards and Local Limits.	    1.20

3-1   EPA Ambient Water Quality Criteria for Protection of
        Aquatic Life. . .  * ....................    3-39

3-2   Activated Sludge Inhibition Threshold Levels	    3.44

3-3   Trickling Filter Inhibition Threshold Levels	    3.46

3-4   Nitrification Inhibition Threshold Levels  ....	    3-47

3-5   Anaerobic Digestion Threshold Inhibition Levels  . ."'.  .  ..  .  .    3-48

3-6   Federal and Selected State Sludge Disposal Regulations
    1    and Guidelines for Metals and Organics.  .'	    3-50

3-7   EP Toxicity Limitations	  ...    3.53

3-8   Nickel Levels in Chattanooga POTV Influent, Effluent,
        and Sludge (2/11-2/20/80)	    3-54

3-9   Priority Pollutant Removal Efficiencies Through
        Primary Treatment	•...'.	,.  .  ..   3-55

3-10  Priority Pollutant Removal Efficiencies Through
        Activated Sludge Treatment	    3-56

3-11  Priority Pollutant Removal Efficiencies Through
        Trickling Filter Treatment	    3-57,

3-12  Priority Pollutant Removal Efficiencies Through
        Tertiary Treatment	    3-58

3-13  Typical Domestic Vastevater Levels	    3-59

4-1   Closed Cup Flashpoints of Specific Organic Chemicals	    4-22
                  «
4-2   Discharge Screening Levels Based on Explosivity  	    4-23

4-3   Henry's Lav Constants Expressed in Alternate Units	    4-24

4-4   Discharge Screening Levels Based Upon Fume Toxicity 	    4-26

5-1   List of Commonly Used Solvents. ................    5-11

6-1   Comparison of Combined Metals Data Base Vith Metal
        Finishing Data Base ...........	    6-15

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                                LIST OP  FIGURES

Figure                                                                 Page
1-1  Overview of Local Limits Process ....	    1-13
2-1  Simplified Conceptual Flow Diagram for Determining
       Pollutants of Concern	    2-18
2-2  Detailed Flow Sheet for Chemical Specific Approach to
       Identifying Pollutants of Concern to Treatment
       Plant Operations 	 . 	 ..........    2-20
2-3  Toluene Loading to the Chattanooga, Tennessee POTV .......    2-26
2-4  Example Approach for a Municipal TR£ . .	    >2-32
3-1  Example Distribution Plot of Removal Efficiency Data .....    3-21
3-2  Commonly Used Methods to Allocate Maximum Allowable
       Industrial Loadings	3-32

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Volume II;  Appendices                          ,

Appendix               ••_-_-_               -------  • ---------   ,.,_._„ _____ [Page
  A       REFERENCES TO "DOCUMENTS WHICH PROVIDE GUIDANCE TO
          DEVELOPING TECHNICALLY BASED LOCAL LIMITS                     A-l

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

  C       MATRIX OF POLLUTANT OCCURRENCE IN INDUSTRIAL WASTESTREAMS     C-l

  D       CURRENTLY AVAILABLE EPA DEVELOPMENT DOCUMENTS                 D-l
   »
          •  Publications Available iron the Industrial Technology
             Division                                                   D-2

          -  Publications Available from the Government Printing
             Office (GPO) and/or the National Technical Information
             Service (NTIS)                                             0-11

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

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

  G       PHYSICAL/CHEMICAL CHARACTERISTICS OF TOXIC POLLUTANTS         G-l

         . -  Glossary of Terms                 .                         G-l

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

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

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

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

  H       TOXIC ORGANIC POLLUTANTS                     v                 H-l

          -  Clean Water Act Priority Pollutants                        H-2

          -  RCRA Appendix IX List                                      H-S

  I       LOCAL LIMITS DERIVATION EXAMPLE                               1-1

  J       SAMPLE HEADSPACE MONITORING ANALYTICAL PROCEDURE              J-l

  K       EXAMPLE FORMAT FOR AN IU ASPP PLAN                            K-l

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              LIST OF APPENDICES (Continued)
TREATABILITT OP TOXIC POLLUTANTS

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

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

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

•  Table L-4:  Performance of Treatment Technologies in
               Removing Phenols

•  Table L-5:  Performance of Treatment Technologies in
               Removing Halogenated Aliphatics
-  Table L-6
-  Table L-7
-  Table L-3
-  Table L-9
Performance of Treatment Technologies in
Removing Phthalates

Performance of Treatment Technologies in
Removing Nitrogen Compounds

Performance of Treatment Technologies in
Removing Oxygenated Compounds

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

REFERENCES
Page

L-l


L-l
•


L-7


L-13


L-18


L-22


L-31


L-34


L-35


L-36


L-37

M-l

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

-------

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   } UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                    WASHINGTOND.C. 20440
                          AUS  4
                                                       0»*TIO»
 MEMORANDUM

 SUBJECT:   Guidance on Bringing Enforcement Actions  Against
           POTWs for Failure to Implement Pretreatment
           Programs
 FROM:      Glenn L.  Unterberger
           Associate Enforcement Counsel       '
             for water
           J.  William Jordan   x
           Enforcement Divisions Dlr*fe€6r,
           Office of Water Enforcement  and  Permits

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

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

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

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

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

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

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

Attachment

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

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    GUIDANCE ON BRINGING ENFORCEMENT ACTIONS AGAINST POTWS
        FOR FAILURE TO IMPLEMENT PRETREATMENT PROGRAMS
                        August 4, 1988 	
                      TABLE OF CONTENTS ~--	I.. " J ,. :i~~

.1.  EXECUTIVE SUMMARY   ........  . V. .'."...-"-."~;.....  '.  1

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

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

IV. IDENTIFYING POTW PRETREATMENT IMPLEMENTATION
     VIOLATIONS LIKELY  TO MERIT AN ENFORCEMENT RESPONSE:
       Evaluating a POTW's Actions In Light of Allowed
         Flexibility and Impact of the violation ....   14
     A. Identifying Potential Violations  	   14
     B. Determining the Extent To Which Identified
          Violations warrant an Enforcement Response:
          How Strong Are EPA1s Claims?    ...... .  .   16
          1. Evaluating Unreasonable POTW Action Under
               Flexible Implementation Requirements  .  .   16
          2. Evaluating the Impact or Severity of
               Identified Violations 	   18
               a.  Inadequate Program Implementation
                    Causing POTW Effluent Limit
                    Violations.	   18
               b.  Inadequate Implementation Not Causing
                    Effluent Violations   ........   19

V. ENFORCEMENT OPTIONS  FOR FAILURE TO IMPLEMENT  .....   20
     A. General Considerations for Choosing an
          Appropriate Enforcement Response-	   20
     B. Penalty Assessments  ....   .........   22
     C. Joining Industrial U^ers  (IUs; and States   . .  .   23


ATTACHMENT A:  MODEL FORM.FOR LISTING AND EVALUATING
               PRETREATMENT IMPLEMENTATION VIOLATIONS

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ATTACHMENT BJ  MODEL CIVIL JUDICIAL COMPLAINT FOR
               PRETREATMENT IMPLEMENTATION CASE
ATTACHMENT C:  MODEL CIVIL JUDICIAL CONSENT DECREE FOR
               PRETREATMENT IMPLEMENTATION CASE
                              ii

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                      _^      OF TABLES


TABLE 1
DEFINITION OP REPORTABLE MOMCOOTLIANCE ._._•_.,...._. ._.„._.... _15a
TABLE 2                          , ....  -.  ...  .  ".r".-"-  *
EXAMPLES OF VIOLATIONS BASED ON A REASONABLE  ---.--—•• '-
INTERPRETATION OF THE 'PRETREATMENT IMPLEMENTATION  '  "
REGULATIONS WHEN INCORPORATED BY REFERENCE INTO   ' ""  ..   -
THE PERMIT		.....;......	  i6a
TABLE 3
GENERAL GUIDELINES FOR EVALUATING THE SEVERITY OF
PRETREATMENT  IMPLEMENTATION VIOLATIONS  	  20a
                              iii

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    .                  .
Failure to  Implement  Guidance                           page l
(8/4/88) ::  ----^~  ~~  -                          -.--...


            ___ .   '  I,   EXECUTIVE JSUMMARY^	„,_.._
     This guidance document  explains' the .legal"4|td,^c.icy
considerations involved  in deciding whether  and how EPA shall
pursue Federal enforcement responses under _the;.Clean Water
Act against POTWs that have  been indentified oh the Quarterly
NonCompliance Report as  having  failed to adequately implement
their pretreatment programs.'

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

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

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

     The following approach  should be useful in identifying
potential cretreatment implementation violations for possible
enforcement r*~:2nses.   First, examine the POTW's permit to
identify all ,:_• a treatment activities the POTW  is required to
implement.  Second, review all pretreatment program annual
reports that the POTW has submitted since its-program was

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Failure  to Implement  Guidance                           page 2
 (8/4/88)

                         •
approved.  All pretreatment  audits  and  inspections  should
also  be  reviewed to identify potential  violations.

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

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

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

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

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

-------
      .    . .,_ .    .	_,.
 Failure to~Implement"Guidance                        .  :pige 3
 (8/4/88)


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

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

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

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


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

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


    ZZ.  INTRODUCTION:  POTW Implementation as the Key to an
           Effective National Pretreataent Program

 A.  Purpose of this Guidance

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

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

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

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

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                                         . .
 Failure  to  Implement-^^i^anee                         ' Baae 5
 (8/4/88)
                  •   * '

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

 B. Related'Pretreatment  Guidance p^t^^^n^y

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

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

     Two other guidance  documents, both issued on September
 20, 1985, are also relevant to bringing failure to implement
 cases.3  One document, entitled "Guidance on Obtaining
 Submittal and Implementation of Approvable Pretreatment
 Program," discusses  EPA  enforcement and permitting policy on
 obtaining POTW pretreatment program submittal and implementa-
 tion.  The  other  document,  entitled "Choosing Between  Clean
Water Act 5309(b) and §309(f) as a Cause of Action in
 Pretreatment Enforcement Cases" describes the legal consid-
erations involved in choosing a cause of action  in a
pretreatment case.                      .
     3  Copier ;f both documents are contained in the CWA
Compliance/Enforcement Policy Compendium, Volume II, SVI.B.
Copies of the Compendium are in OECM's new computer data
base, the Enforcement Document Retrieval System.

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Failure to Implement Guidance                           page 6
(8/4/88)


     Finally, on August 1, 1988, EPA distributed draft
guidance, for Regional review, that explains how the  CWA
civil Penalty Policy should be applied to eases  in which a
POTW has failed to adequately implement  its pretreatment
program.  This document, entitled "Penalty Calculations for a
POTW'a Failure to Implement It's Pretreatment Program"
discusses the specific considerations involved in  making
penalty policy calculations for failure  to implement
violations.

C. Background on the National Pretreatment Program

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

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

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

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Failure to-Implement Guidance                        —page 7
 (8/4/88)'


entering  its"sewer  system.5   The?Agefley:e«nfirmed~thi3.:-  -
responsibility that POTWs  have-in tixcup.r«ambl«_tp  ita final
1978 General Pretreatment  Regulations/ 43 F.R. 27736,  June
26, 1978.  In that  preamble the Agency stated:  .-._'	

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

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

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

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

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

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


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

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

A. Statutory Authority for Requiring POTW Pretreatment
Programs

     Section 301 of the Clean Water Act prohibits the
discharge of any pollutant except in compliance with the  -
effluent limits established in f301 and the requirements in
sections 302, 306, 307,' 308, 402 and 404.  The most relevant
sections for pretreatment are 307 and 402.

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

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

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Failure to Implement: Guidance-                          pag« 9
(8/4/88)


     interferes with, passes ^through,, or o_therwjLse is  -	
     incompatible with such works.:":	7 ^  _.,  -   .;  H^cr.-

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

     "(t]o insure that any permit for a discharge  from  a
     publicly owned treatment works includes  conditions
     to require the identification in terms of  character
     and volume of pollutants of any  significant source
     introducing pollutants subject to pretreatment
     standards under section 307(b) of this Act into
     such works and a program to assure compliance  with
     such pretreatment standards by each such source
     ..."        ,             •          '•             '

     Section 402(b)(8) further mandates that  a  state program
have adequate authority to require POTHs to inform  the  state
permitting agency of (1) the introduction of  pollutants into
the POTW from a new source, (2) a substantial change in the
volume or character of pollutants coming into the POTW  from
an existing source and (3) any anticipated impact o2 such
changes on the POTW's effluent discharge.  In snort,  any
state desiring to administer its own NPDES permit prcgram
must issue permits, that require POTWs to have programs  that
will assure compliance with pretreatment .standards.

     The language of 1402 indicates that POTWs are obligated
to have programs to assure compliance with pretreatment
requirements and gives EPA and approved states the authority
and obligation to require POTWs to develop and implement
effective pretreatment programs.


B. C.ril .Judicial Enforcement Authority

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

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

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       .
Failure to  Implement Guidance                         page 10
(8/4/88)


     issued under-section 402 of this Act: Toy him or a
     State  ..., he shall  issue an order requiring such
     person to comply with such section or  requirement,
     or he  shall  bring a  civil action in accordance vith
     subsection  (b)  of this section.**

     Section  309(b)  of the Act authorizes EPA,  in pertinent
part,:
           •                              ' •
     ... to commence a civil action  for appropriate
     relief,  including a  permanent or temporary injunc-
     tion,  for any violation for which he [EPA
     Administrator]  is authorized to issue  a compliance •
     order  under  subsection(a)  of this section.  ...

     Civil  penalty liability is established in  1309(d) of the
Act, which  reads,  in pertinent part:

     •Any person  who violates section 301,  302,  306,
     307, 308, 318,  or 405 of this Act,  or  any  permit
     condition or limitation implementing any of such
     sections in  a permit issued under section  402 of
     this Act by  the Administrator,  or by a State   ..,
     or any requirement imposed in a pretreatme*.t pro*
     gram approved under  section 402(a)(3)  or 402(b)(8)
     of this Act,  and any person who violates an order
     issued by the Administrator under subsection (a) of
     this section,  shall  be subject  to a civil  penalty
     not to exceed $25,000 for each  violation."

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

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

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 Failure to Implement TSuidanee       ,                  page Ml
 (8/4/88)


 EPA could sue the POTW for NPDES .permit jriolations other -than
 inadequate implementation under | 309 (to)  and (d)  of-the Act
 and seek pretreatment implementation as "appropriate relief"
 under |309(b).          •           .- — •:.— —:

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

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

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

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

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                                         •
Failure to Implement Guidance                   ,       page 12
(8/4/88)

                        *    ....
     to inspect and sample lUs on an enumerated schedule
     (perhaps a specific number each quarter), beyond just
     •imply requiring an inspection and sampling program.

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

     (1) perform a specific pretreatment activity  directly
     required by its permit;
     (2) fully implement its approved pretreatment program as
     explicitly required by its permit; and/or
     (3) comply with the 40 CFR 403 regulations (especially/
     §1403.5 and 403.8(f)) as directly required by its
     permit.


q. Administrative Enforcement Authority

     Under 1309(a)(3) of the Act, EPA can administratively
order a POTW to comply with the pretreatment program  require-
ments contained in its permit and its approved pretreatment
program incorporated by reference into the permit.  EPA
Regions also can issue an administrative order (AO) requiring
a POTW to comply with the pretreatment regulations if the
permit  (or approved program incorporated into the  permit by
reference) requires compliance with the regulations.   As
stated previously, EPA is in the .strongest position to
enforce a pretreatment implementation requirement, either
administratively or judicially, if the POTW's permit  (or
approved program or regulations, incorporated into the
permit) imposes that requirement on the POTW.

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

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Failure to Implement  Guidance                         page  13
(8/4/88)


     The Water Quality Act of 198? authorized.£PA to.assess
penalties administratively for violations:6f  the clean "Water
Act.  Under  5309(g),  EPA may impose penalties for virtually
the entire range of violations that are  subject to.civil
penalties under §309(d).  Administrative penalties may be
assessed up  to a maximum of $25,000 following Class 1
informal procedures and a maximum of  $125,000 under Class 2
formal APA procedures.  Administrative penalties cannot be
imposed for  violations of 8309(a) administrative compliance
orders, but. of course, may be imposed for underlying
violations.11  Administrative penalty authority, by itself,
does not include the  power to directly order  a violator to
stop continuing violations or take alternative activities to
achieve compliance.

     Subject to these qualifications, EPA now has administra-
tive authority to assess penalties against a  POTW that
violates (1) the pretreatment implementation  requirements
contained in its permit, (2) an approved program incorporated
into its permit, or (3) the pretreatment regulations if the
permit or approved program appropriately references the
regulations.  Regions should review EPA1s "Guidance Documents
for Implementation of Administrative  Penalty  Authorities,"
August 1987, for the  details on how to initiate these
enforcement  actions.12
D. Criminal Penalty Authority

     Under $309(c), EPA has the authority to assess criminal
penalties for negligent or knowing violations of the Act, for
violations that knowingly put another person in imminent
danger of death or serious bodily injury, or for mcki j false
statements under the Act.  Criminal penalties can be assessed
for the entire range of violations that are covered by EPA's
civil and administrative authorities in 8309(a), (b) and (d).
For example, a POTW that falsely reports to its Approval
Authority that it is complying with a pretreatment implemen-
tation requirement is a potential candidate for criminal
enforcement.
     11  Civil penalties can be- imposed judicially under
§309(d) of the Act for violations of administrative (compli-
ance) orders issued pursuant to §309(a) of the Act.

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

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                  .  ••                            •.
Failure to  Implement  Guidance                          page 14
(8/4/88)


 XV. IDENTIFYING  POTW PRETREATMENT IMPLEMENTATION VIOLATIONS
           LIKELY TO MERIT AN ENFORCEMENT RESPONSE:

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

A. Identifying  Potential Violations

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

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

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

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

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Failure to'Implement Guidance  .                        page 15
 (8/4/88)    .


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

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

     Third, the region should compile a list of all  pretreat-
ment implementation  requirements applicable to  the POTW which
available information indicates the POTW may have violated.
Fourth, in some circumstances, the region may wish t^  obtain
more additional information by issuing a S308 letter -o a
POTW to fill in gaps in compliance information.

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

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

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                             ^                               :      pagt

                                            TABLE I*


                        DEFINITION OF REPORTABLE NONCOMPUANCE


    A POTW should be reported on the QNCR if the violation of its approved presentment program, its
    NPDES permit or an enforcement order1  meets one or more of the following lettered criteria for
    implementation of its approved pretreaunent program:

    I.  Issuance of IU Control Mechanisms

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

         B)  Failed  to conduct at least eighty percent of the inspections and samplings of "significant
             industrial users" required by the permit, the approved program, or an enforcement order.
         C)  Failed  to establish and enforce self-monitoring requirements that are necessary to monitor
             SIU compliance as required by the approved program, the NPDES permit, or an enforcement
             order.
    III.  POTW Enforcement

         D)  Failed  to develop, implement, and enforce pretreatment standards (including cate'(
             standards and local limits) in an effective and timely manner or as required by the ap,
             program. NPDES permit, or an enforcement order.
         E)  Failed  to undertake effective enforcement again*; the  industrial user(s)  for instances of
             pass-through and interference as defined in 40 CFR Section 4033 and  required by Section
             403 J and defined in the approved program.

    FV.  POTW Reporting to the Approval Authority

         F)  Failed  to submit a pretreatment report (e.&, annual report or public	: of significant
             violators) to the Approval Authority within 30 days of the due date specified in the NPDES
             permit, enforcement order, or approved program.4

    V.  Other POTW Implementation Violations

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

         H)  Any other violation or group of violations of local program implementation requirements
             based on the NPDES permit, approved progra-t or 40 Q-R Pan 403 which the Director or
             Regional Administrator considers to be of substantial concern.4
  .  • The term enforcement order means an administrative order, judicial order or consent decree (bee Scuu
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         •  •      <<•
 Failure to Implement Guidance                         pagt
 (8/4/88)'
 listed in Table 2»  Table 2-centain*-*iliating^"C)f
 violations based on a reasonable interpretation of the
 pretreatment implementation regulations (40 CFR 403)  when
 such regulations are incorporated by reference 'into the
 permit.   While the list in Table 2 is not exhaustive, it is
 illustrative of those violations that may justify an enforce-
 ment response by EPA for failure to implement.

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


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

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

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

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                                             page L6a

                           TABLE 2

 EXAMPLES OF VIOLATIONS BASED ON A  REASONABLE  INTERPRETATION
 OF PRETREATMENT IMPLEMENTATION REGULATIONS WHEN INCORPORATED
                BY. REFERENCE  INTO THE PERMIT*


 1.   Failed to develop and/or implement procedures that
     reasonably identify all  lUs, including new users.  See 40
     CFR 403.8(f)(2)(i).

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

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

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

 5.   Failed to inspect and sample the effluent from lUs as
     often as is  necessary to assure compliance with pre-
     treatment standards and  requirements.   See 40 CFR
     403.8(f)(2)(v).

 6.   Failed to investigate or respond adequately  to instances
     of IU noncompliance.  See  40  CFR 403.8(f)(2)(vi).

 7.   Failed to publish, at least annually,  in  the  largest
     daily newspaper, a list  of  those lUs which, during the
     previous 12  months, were significantly violating
     applicable Pretreatment  Standards and  Requirements.   See
     40 CFR 403.8(f)(2)(vii).

 8.   Changes to POTtf's legal  authority such that the program
     no longer satisfies the minimum legal  requirements  of 40
     CFR 403.8(f)(1).

 9.   Has never enforced its local limits beyond a  telephone
     call or letter to the violating IU despite repeated
     violations by ZUs. See   40 CFR  403.5(c)

 10.  Deficient POTW resources  (supplies, equipment,  person-
     nel) which seriously hinder  a POTW*s ability  to imple-
     ment an effective pretrtAtment  program pursuant to  40
     CFR 403.8-(f) (1)  & (2).   See  40  CFR 403.8(f) (3).
        EPA's- enforcement case is strongest where the
violations are based on an implementation requirement
contained in a POTW's permit, either explicitly or by
reference.'                       .       •   .

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Failure to Implement Guidance                   '       page  17
(8/4/88)  -c"—^-                                  r~?c  -1


tion requirements are quite specific and thus the determina-
tion of whether-a" PbTW fully complied with such'requirements
will be straightforward.  For example,  if a permit requires a
POTW to issue control mechanisms to all its significant  XUs
within one year of program approval, one year after program
approval the facts should be clear whether or not a POTW"
complied with this requirement.

     However, the pretreatmerit requirements contained  in
permits and approved programs, as well  as the regulations,
are often written in general terms that give a  POTH consid-
erable flexibility in implementing a given requirement.
Indeed, virtually all regulatory implementation requirements
allow some flexibility in implementation.  While a POTW may
have considerable flexibility in implementing some pretreat-
ment requirements, a POTW must act reasonably by implementing
its pretreatment requirements consistent with the objectives
of the National Pretreatment Program.  These objectives are
presented in 40 CFR 403.2:

     (a) To prevent the introduction of pollutants into POTWs
     which will interfere with the operation of a POTW,
     including  interference with its use or disposal .of
     municipal  sewage;
     (b) To prevent the introduction of* pollutants into POTWs
     which will pass through the treatment works or otherwise
     be incompatible with such-works; and
     (c) To improve opportunities to recycle and reclaim
     municipal  and industrial wastewaters and sludges.

     POTWs are  on notice of these objectives and thus should
implement a pretreatment program that "assure[s] compliance
with pretreatment standards to the extent applicable under
section 307(b)." 40 CFR 122.44(j)(2).17  In short, a POTW's
implementation  of its pretreatment requirements must be
reasonable:  that is, consistent with the objectives of an
effective pretreatment program.

     In determining whether a POTW's implementation of a
pretreatment requirement is reasonable or appropriate, the
Regions again may wish to review oWEP's July 1986, "Pretreat-
ment Compliance Monitoring and Enforcement Guidance".  This
document provides PCTWs with information about  their pre-
treatment implementation responsibilities and describes the
     17  The last sentence of §403.8(b) and the first  .
sentence of §403.8(f)(2) contain similar language requiring a
POTW to implement its pretreatment program in order to ensure
compliance with pretreatment standards.  See also §402(b)(8)
of the Act;                             '

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                      .   r, ;..               .
 Failure to Implement Guidance                         page is
 (8/4/88)


 rational* behind the procedures POTWs should implement in
 ordar to auccessfully operate their approved programs.

      For example, ona such potentially flexibla requirement
 is tha important permit condition that a POTW enforce all
 pretreatment standards  and requirements, including local
 limits and categorical  pretreatment standards.18  There will
 be situations in which  a POTW's performance is so inadequate
 that there is no doubt  that this requirement was violated.
 For example, there is no doubt that a POTW that generally
 ignores most violations of local limits by its XUs,  has never
 enforced beyond issuing a letter of violation to an XU, and
 that consequently has violated its effluent limits due to
 interference or pass through problems has violated.its
 requirement to enforce  pretreatment standards and require-
 ments.

      Zn contrast, consider a POTW that regularly issues
 letters of violations,  has collected penalties from some XUs
 that were violating local limits, but has allowed a few XUs
 to violate local limits and cause interference violations
 without escalating its  enforcement response beyond the
 issuance of "lenient" compliance schedules for th-» XTs.  Such
 facts may paint a much  more complicated picture on which to
 base a finding that this POTW is not complying with its
 obligation to enforce pretreatment standards.  Xn situations
 such as this, EPA Regions must evaluate all the facts to
 determine whether a POTW has taken reasonable actions
 consistent with its obligation to enforce its program.   If  •
 the Region believes that a POTW has not taken reasonable
 actions to comply with  its obligation here and specific
 deficiencies can be identified,  then this POTW should be
 considered in violation of its permit.


 2.  E • -.lusting the Impact or Severity of Identified Viola*
 tiona.                                           .

 a*   Inadequate Program  Implementation Causing POTW Effluent
 Limit violations.  The  most significant pretreatment imple-
 mentation violation ia  failing to prevent interference or
      18   Much of the lack of precision in this requirement
can be eliminated if a POTW is  required to develop and
implement an enforcement response plan that details how a
POTW  will respond to different kinds of violations by its
XUs.  See Enforcement Response  Guide,  S3.3 and Table 3-2, in
OWEP's July 1986 "Pretreatment  Compliance Monitoring and
.Enforcement Guidance."

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                  .
Failure to Implement Guidance                          page i9
(8/4/88)                "  -
                                             •

pass through.19  By regulatory definition,  interference  or
pass through basically exists when an"-IU discharge is  a'cause
of POTW effluent limit violation or  inability to use or
dispose of sewage sludge properly. .  Thus, a POTW which is"
violating its permit limits because  of the  ZU discharges it
is accepting has failed to implement a successful pretreat-
ment program as defined by the Act.   -

     A POTW that has experienced repeated interference or
pass through problems but has taken  no definite action to
remedy the situation (i.e., to control the  discharges  of its
ZT7s) generally should be an ideal candidate for an enforce-
ment action.  The fact that effluent violations have occurred
at the POTW strongly suggests that the POTW is not effec-
tively implementing its pretreatment program.


b.  Inadequate Implementation Net Causing Effluent Viola-
tions.  The lack of an interference  or pass through viola-
tion, or any permit effluent discharge violation, does not
mean that EPA should overlook or trivialize other types of
implementation violations.

     Beyond undermining the integrity of the naiiouaj.
pretreatment program, a POTW's failure to implement a pre-
treatment program which does not lead to effluent limits
violations can result in the discharge to waters of the
United States or in a POTW1s sludge  of higher levels of
pollutants, particularly toxics, which say hot yet be con-
trolled under the POTW's permit.  In addition,  an improperly
implemented pretreatment program may allow slug loadings from
XUs which might go undetected if the POTW is not sampling its
effluent at appropriate times.   .

     Moreover, inadequate implementation by one POTW may give
its ~*3a an unfair advantage relative to industries discharg-
ing into another POTW and thereby may induce the second POTW
to-forego adequate pretreatment program implementation.
Finally, inadequate local program implementation generally
jeopardizes the ability of the National Pretreatment Program
to effectively control industrial discharges of toxic  and
hazardous pollutants.
     19  Recall that §402(8) of the Act requires pretreatment
programs to assure compliance with pretreatment standards and
that such standards, pursuant to §307(b) of the Act, are
"established to prevent the discharge of any pollutant
through [publirV/ owned] treatment works ... which pollutant
interferes wit.:, passes through, or otherwise is incompatible'
with such works, [emphasis added]1*  See also 40.CFR 403.5(a)
and (c).

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  .
Failure to Implement Guidance                         page 20
(8/4/88)


     Thus, a Region should evaluate each violation to deter-
mine its ••verity or seriousness.  Violations that ar« truly
minor, with no impact on the ability of a POTW to conduct an
effective pretreatment program, should be so identified.
Each violation should be evaluated with r«sp«ct to the
general guidelines listed in Table 3.

     A Region may find it helpful to assign a numerical rank-
ing to each identified violation reflective of its severity.
The model form for creating a list of violations in Attach-
ment A contains a numerical scale ranging from 1 (minor
violation) to 5 (violation creating injury or risk of injury
to human health or the environment) which may be used to rate
the severity of each identified violation.

     Of course, a violation which may not be severe and may
not present EPA with a strong enforcement claim individually.
may v«ry well warrant enforcement action by EPA if the POTW
is committing a number of such violations simultaneously,
even if the enforceable requirements afford a considerable
amount of flexibility.  Such a broad pattern of minor
failures can add up to inadequate program implementation when
viewed as a whole.  Naturally, the more such violations are
present,, the stronger EPA's enforcement case.
       V. ENFORCEMENT OPTIONS FOR FAILURE TO IMPLEMENT

A. General Considerations for Choosing an Appropriate
Enforcement Response

     Once a POTW has been identified as having pretre taent
implementation violations meriting a formal enforcement
response, the Region has several options to choose from in
selecting an appropriate enforcement response. The available
statutory enforcement responses are:

1.  Administrative  (compliance) Order  —  $309(a)
2.  Administrative penalty assessment — 1309 (g)      <
3.  Civil Judicial Action — §309(b) & (d), 309 (f)20
4.  Criminal Judicial Action Referral — |309(c).
     20 If there is not enforceable permit language requiring
pretreatment program implementation but an IU is violating
federal pretreatment standards, EPA can use |309(f) to
initiate a judicial action seeking appropriate injunctive
relief against -o*h the IU and the POTW.  [s«« page 10].
Section 402(h> ilao may provide a useful  cause of action in
some circumstances where a sewer hook-up  ban may be appro-
priate relief to pursue.         .                       .

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                                             page 204

                           TABLE" 3

        GENERAL GUIDELINES FOR EVALUATING THE SEVERITY
          OF PRETREATMENT' IMPLEMENTATION VIOLATIONS*

           For each potential violation, consider:

             »                           _
A.   Importance of activity at issue to environmental success
     of the POTW's pretreatment program.

B.   Any identifiable environmental/public health harm or
     risk created by the alleged violation?

C.   Is the quantity of pollutants being discharged into the
     receiving stream higher than it would otherwise be if
     the POTW was complying with the requirement at issue?
     By how much?

0.   Did the POTW benefit economically from the alleged
     violation?

E.   Are lUs benefiting economically (avoiding the costs of
     compliance) by the POTW's failure to implement this
     program requirement?

F.   Has the violation persisted after the POTW was informed
     of this violation?  And then ordered to remedy the
     situation?

G.   How long has this violation persisted over time o'r is it
     more like a single, isolated incident of noncompliance?
     *  In general, this evaluation should be performed after
a POTW has been listed on the QNCR for Reportable Noncom-
pliance with pretreatment program implementation requirements.

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               ....
Failure to  Implement  Guidance                         page 21
(8/4/88)


     In selecting -an  appropriate enforcement response, the
Region should consider the  overall  severity of  the viola-
tions, the  coapliance history and commitment of the  POTW in
question, whether  injunctive  relief is needed,  whether a
penalty is  appropriate and  if so, how large a penalty, and
what kind of message  needs  to be sent to other  POTWs (i.e.,
general deterrence).

     The Regions should carefully consider  using EPA's new
administrative penalty authority in appropriate circum-
stances.  The Regions should  review the Agency  guidance
documents issued by the Office of Water and the Office of
Enforcement and Compliance Monitoring (August 1987)  for
implementation of  the new administrative penalty authorities.
The document entitled "Guidance on  Choosing Among Clean Water
Act Administrative, Civil and Criminal Enforcement Remedies"
should be particularly helpful in laying out the
considerations involved in  choosing between administrative
and judicial enforcement actions.

     As a general  rule, the strongest enforcement case
against a POTW for failure  to implement its pretreatment
program will generally involve POTW effluent violations and a
number of related  pretreatment implementation violations.  In
other words, the POTW's implementation of its pretreatment
program has been so deficient that  IU discharges have not
been adequately controlled  and these discharges have caused a
POTW to exceed the effluent limits  in its permit (or other-
wise violate its permit).  This type of case which calls for
both injunctive relief and  a  substantial civil penalty is
likely to be appropriate for  civil  judicial  enforcement.

     A case in which  a POTW is running a sloppy or inadequate
pretreatment program,  with  identifiable implementation viola-
tions, but  in which there is  so far no evidence of POTW
effluent limit violations, may be appropriately dealt with by
issuance of a traditional compliance administrative order or
by assessment of an administrative  penalty,  or by initiation
of a civil  judicial action.   EPA's  pursuit  of a penalty in
these situations could have great value in  demonstrating to
POTWs that  they must  fully  implement their  pretreatment
programs now and not  wait until serious effluent violations
occur.  Enforcement Actions initiated against POTWs  for
failure to  implement  in the absence of effluent limit viola-
tions (related to  inadequate  implementation)  should help EPA
send the message that prevention is the goal of pretreatment
programs, not damage  control  after  effluent limit violations
have occurred.

     There  may fie  cases in which the POTW is complying with
its permit  and approved program, but nevertheless the Region
believes that the  POTW's pretreatment performance is inade-

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                       •
 Failure to Implement Guidance                         Daea 22
 (8/4/88)


 quata.  This situation is likely whan the approvad program
 doaa not specify all tha necessary actions that tha POTW
 should perform.  In such a situation, if thara are indeed no
 elaar violations of tha permit or approvad program, tha bast
 coursa of action may ba for tha Region or approved stata to
 axpaditiously modify tha POTW's permit and/or approvad
 program to establish specific program implementation require-
 ments to remedy the situation.21

      In summary, civil judicial enforcement cases are most
 likely to be appropriate when the violations are severe,
 injunctive relief is necessary, and/or a penalty should be
 assessed in excass of EPA's new administrative penalty
 authority.              .    .

 B. Penalty Assessments                          :

      Katurally, in determining an appropriate settlement
 penalty, the CWA Civil Penalty Policy must ba followed.
 Earlier this month, EPA distributed draft guidance ~
 "Penalty Calculations for a POTW's Failure to Implement It's
 Pretreatment Program1* — that explains the specific consider-
 ations involved iir making penalty policy calculations for
 failure to implement violations.  In short,  EPA should col-
 lect a penalty that recovers a POTW's full economic benefit
 stemming from the pretreatmant implementation noncompliahce
• plus an additional gravity amount based on the type and
 pattern of the violations.  The POTW's economic benefit may
 accrue from costs avoided by not hiring -program personnel,
 not issuing IU wastewater discharge permits,  not conducting
 inspections or wastewater testing,  failing to maintain
 records or submit reports, or failing to install or operate
 necessary equipment.

      Zn applying tha Penalty Policy adjustment factor for
 ability to pay to these cases,  it should be  stressed that •
 since pretreatmant programs are designed to  control indus-
 trial discharges, the costs of the programs  should be paid  by
 XUs through appropriate user charges levied  by a POTW.   Zn
 assessing ability to  pay,  a POTW's ability to recover penalty
 amounts from its lUs  is relevant.   A per capita approach
 based simply on the residential service population of a  POTW
 is not. appropriate as the basis for establishing a settlement
 penalty for a POTW failure to implement case.
      21  Recall that EPA is in the strongest position to
 enforce a pretreatment -requirement if the requirement is
 expressly stated in the permit, in the approved program
 incorporated 2..  reference into the permit,  or in the
 regulations if the permit requires the POTW to comply with
 the regulations.

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Failure to Implement Guidance                         page 23
(8/4/88)


er jatnina Industrial Users  fTPal and States

     It an IU has caused interference or pass through at the
POTW, or has violated local  limits, categorical standards or
other pretreatment requirements, EPA may include such an XU
in a civil enforcement action.  The .importance of joining an
XU in an enforcement action  is increased if an XU is a
primary cause of a POTW's effluent limit violations or if the
XU needs to install pretreatment equipment at its facility,
especially if a POTW is unwilling or unable to force an XU to
install the necessary equipment.  In general, if an XU has
obtained an economic benefit from its noncompliance with
pretreatment standards and requirements and its noncompliance
is contributing to a POTW's problems, then in order to obtain
a complete remedy and an appropriate penalty consistent with
the Agency's Penalty Policy, EPA may very well want to
include such an XU in any judicial action brought against a
POTW for failure to implement.  Similarly, if a Region
contemplates an enforcement action against an XU for
pretreatment violations, which violations have caused
problems at the POTW and the POTW has failed to adequately
respond to the XU's violations, claims against the XU and the
POTW should generally be joined in a single civil action.

     Pursuant to §309(e) of the Act, whenever EPA brings a
judicial enforcement action against a POTW, the state in
which a POTW is located must be joined as a party.  Xf state
law prevents a POTW from raising revenues needed to comply
with any judgment entered against it, the Act makes a state
liable for payment of such expenses.  States may be joined in
judicial enforcement actions against POTWs for failure to
implement as either defendants or plaintiffs, as appropriate.
Further details on how to join states under §309(e)  is found
in EPA's February 4, 1987, "Interim Guidance
on Joining States as Plaintiffs."

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                                                                   VI.B.30.
"GUIDANCE ON PENALTY CALCULATIONS FOR POTW FAILURE TO IMPLEMENT APPROVED
PRETREATMENT PROGRAMS", dated December 22, 1988.

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t

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
               WASHINGTON. O.C 20460
                                                           OfflCt Of
                                                            WATVM .
    MEMORAMDOM

    SUBJECT:


    FROM:
    TO:
   Guidance on Penalty Calculations for POTW Failure to
     Implement an Approved Pre treatment Program
   James  R.
   Office of Wj^er  Enforcement and Permits (EN-335)

   John Lyon, Acting Associate £)frv
     Enforcement Counsel  for Waftyir (LE-134W)
   Office of Enforcement  and Compliance Monitoring

   Regional  Water Management Division Directors
   Regional  Counsels                             •
         The attached Guidance is provided to assist you and your
    staff in applying the Clean Water Act  (CWA) Civil Penalty Policy
    in cases where a POTW has failed to adequately  implement its
    approved pretreatment program.  The Guidance is based on the
    existing CWA'Penalty Policy, as well as the August 28, 1987
    amendment to the Civil Penalty Policy and the Guidance for
    Reporting and Evaluating POTW Noncompliance with Pretreatment
    Implementation Requirements.  As a result, both administrative
    and judicial civil penalties for settlement should be calculated
    using this Guidance.

         A draft version of this Guidance was provided to the Regions
    for comment on August 1, 1988.  We wish to thank you for your
    timely and helpful comments and your overall support for this
    Guidance.  The most significant comments on the previous draft
    were received on the "Ability to Pay" discussion which' encouraged
    the recovery of penalties from industrial users.  Based on
    comments received, that discussion has been revised, and the
    Guidance is now flexible as to the method which a municipality
    should use to pay penalties.

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                               ••*-••

     Several Regions requested additional guidance on estimating
the economic benefit of failure to implement, especially for
failure to enforce pretreatment standards.  We have added Table 2
to the Guidance which provides resource estimates for enforcement
responses to instances of noncomplianee.  The basic assumptions
are drawn from earlier guidance and from resource estimates used
by the Agency.  At this time, we. do not have additional data on
program implementation costs to update Table 1.  He do plan to
develop such data during the coming year.

     The major components of this Guidance will be incorporated
into the Civil Penalty Policy later this fiscal year.  However,
this Guidance is effective immediately as a more detailed
explanation of how to calculate penalties in pretreatment
implementation cases.

     If you have any further questions on the use of this
Guidance, please feel free to contact  one of us (Jim Elder at
475-8488 or John Lyon at 475-8180) or your staff may contact Ed
Bender at 475-8331.

Attachment

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        PENALTY CALCULATIONS FOR A POTW'S FAILURE TO  IMPLEMENT
                      ITS APPROVED PRETREATMENY'PROGRAM
                              GUIDANCE   --  --:-r:5;i-      ;
I.  INTRODUCTION

     The Clean Water Act Civil Penalty Policy  (Feb.  11,  1986)
establishes a systematic approach for obtaining appropriate
settlement penalties for violations of the Act.  The  Policy and
Methodology were amended August 28, 1987 to  include .a methodology
.for the calculation of administrative penalties.  One of  the
changes in the amendment was the addition of a gravity factor to
address the significance of non-effluent violations.  This
Guidance applies the Civil Penalty Policy with amendment  to
implementation cases.*

     In September 1987, OWEP issued "Guidance for Reporting and
Evaluating POTW Noncompliance with Pretreatment Implementation
Requirements" (RNC Guidance).  That document provides a
definition of reportable noncompliance (RNC) that is used to
evaluate POTW implementation violations of approved pretreatment
programs.  The definition consists of eight criteria  for
determining when violations of an approved pretreatment program,
of related MPDES permit requirements, or of regulatory
requirements for implementation are of sufficient magnitude and
degree to require that a POTW be reported on the QNCR for failure
to implement an approved pretreatment program.  The criteria are
as follows:

     1.   POTW failure to issue control mechanisms to
          Significant Industrial Users in a timely fashion.

     2.   POTW failure to inspect Significant Industrial Users.

     3.   POTW failure to establish and .enforce industrial user
          self-monitoring where required by the approved program.

     4.   POTW failure to implement and enforce pretreatment
          standards (including local limits).

     5.   POTW failure to undertake effective enforcement against
          the industrial user for instances of interference and
          pass/through.       -
* This Guidance, should be applied to calculate  settlement
penalties for both administrative and judicial cases  against
POTWs that fail to implement approved pretreatment programs.

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              •:             '•'  -2-

   * 6.   POTW failure to submit pretreatment reports.

     7.   POTW failure .to complete pretreatment compliance
          schedule milestones on a timely basis.

     8.   POTW failure to comply with other pretreatment program
          requirements which are of substantial concern.

The purpose of this Guidance is to provide Regions with a
methodology to apply the CWA Penalty Policy, as amended, to
calculate administrative and civil judicial penalties for failure
to*implement cases, using the criteria outlined in the RHC
Guidance.                                     ~                  .

     As in the CWA Penalty Policy, this calculated penalty should
represent a reasonable and defensible penalty which the Agency
believes it can and should obtain in settlement.  In general, the
settlement penalty should recover a) full economic benefit
(avoided costs—salaries, financing, operating costs, and capital
expenditures), and b) some gravity related to the type and
pattern of the violation(s), even after adjustments.

     Note;  This guidance discusses the additional considerations
that should be used in the penalty calculation for failure-to
implement.  Penalty amounts for effluent violations should be
included and calculated according to the existing CWA Penalty Policy
and Methodology.  However, Section III of this document, "Example of,
Penalty Calculation*, docs include penalties for both effluent and
pretreatment implementation violations;

II.  PENALTY CALCULATIOH METHODOLOGY - Pretreatment Implementation

     The basic methodology of the CWA Civil Penalty Policy should
be used to calculate settlement penalties in POTW pretreatment
implementation cases.  The three components of a settlement penalty
(Economic Benefit, Gravity, and adjustments) are discussed below.

A)  Economic.Benefit                                         •

     The following steps summarize the process to calculate economic
benefit for pretreatment program activities:

    o  Obtain estimates of the costs to the POTW to implement its
       pretreatment program from the approved program submission.

    o  Update that information based on more current data from a
       pretreatment compliance inspection, a pretreatment audit, an
       annual report, or a 308 letter, if available.

    o  The economic benefit component of the civil penalty policy
       should be calculated using the EPA computer program "BEN".

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     o   For  purposes  of  the  "BEN" calculation,-the  value  of
        delayed  implementation  includes delayed capital
        investment, delayed  cost in developing or updating local
        limits,  and annual, pretreatment _program operating and
        maintenance  (OiM) costs that were avoided,   use separate BEN
        runs if  changes  in operating costs have occurred.

     1) Estimating Avoided  or  Delayed Costs  for  Implementation

     The approved pretreatment program will  probably  include  a budget
 for  program implementation.  There may also  be discussion of
 implementation  activities and  costs in the approved program elements
 covering the compliance monitoring and administrative procedures.
 Such data in the approved program submission provides a  basis for
 developing  the  economic benefit derived by a POTW  by  not implementing
 its  approved program.   In particular, where  a POTW has not complied
 with that budget, economic  benefit may be represented in part by the
 amount  of the budget the POTW  has failed to  expend.   The Region should
 use  data developed through  audits, inspections, annual reports or  308
 letters to  develop these cost  estimates.

     Zn many cases,  the POTW will have complied with  the resource
 commitments in  the approved program but still fail to adequately
 implement the required  program.  This may be the result  of
 unrealistic estimates initially, the failure to update'resource needs,
 changes in  pretreatment program requirements or a  failure to  carry out
 required activities  with existing resources.  Zn such eases,  economic
 benefit may be  developed by estimating the specific costs that were
 avoided for  required implementation activities.

     Where  specific  costs estimates for non-implementation are not '
 available,  the  costs avoided by the POTW for failure  to  implement  can
 be expressed as a percent of the total implementation cost or as an
 estimated cost  for each required activity that was not implemented.
 Pretreatment implementation costs for POTWs  were evaluated as part of
 an earlier  study (JRB Associates, 1982 "Funding Manual for Local
 Pretreatment Programs"  EPA Contract Ho. 68-01-5052).  This assumes
 that the POTW budget includes  all costs associated with
 implementation.  Based  on a review of several programs,  a table  (Table
 1) was developed for small, medium, and large programs to show the
 percent of/tp-tal costs  which each implementation activity represented.
 The  sma-11 vfOTW  pretreatment programs were all under 5 MGD flow and
 covered tea-**  fewer significant industrial  users  (SZU)  with  a total
 implementation  cost  ranging from $10,000-550,000.00 annually. The
medium sized POTW pretreatment programs had  total  flows  from  5-15  MGD
and up to 50 SZOs with  an annual cost from $2S,000-$200,000.00.  The
 large POTW  programs  had flows  over 15 MGD with 20  or  more SIDs with
annual  implementation costs ranging from $100,000  to  more than
 $350,000.00.

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                                -4-
 Table 1.   Typical  Program Coats  for  Implementation Activities
           by  Program Size (as  t  of Total jCos,t)_
Activity                      Small            Medina         Large
 1.   Sampling and  Industrial      22%              19%            18%
       Review  ('Criteria .B, C,)

 2.   Laboratory Analysis          34%              34%            39%
     (•Criteria B, C,  D)

 3.   Technical Assistance         17%              26%            20%
     (•Criteria A, D and E)
                                                         j.
.4.   Legal Assistance             13%              10%            13%
     (•Criteria A, 0.,  E)

 5.   Program Administration       14                11              10
     (•all Criteria)           __	         	
                                100%             100%           1004"

     This Table can be used  to  assist  in  developing  costs  for  a
 specific program activity where costs  are unavailable or determined^*
be  inadequate.  For example,  if a medium-sized  POTW  had costs  for   ^eW
 implementation of $100,000,  but this POTW had failed to perform an*
compliance inspections of its IUs,  the percentage from Table 1,
activity 1 for a medium-sized program  could  be  applied to  total costs.
 The inspection costs  in this  case could be estimated to be $19,000.00.
The costs of "avoided implementation"  may differ  from year to  year
depending on whether  the activities are one-time  or  periodic (such as
permit issuance or updating  local limits)  or continuing tasks  (such as
 inspections). The costs of issuing  permits may  be 20% of an annual
implementation budget of $120,000 or $24,000 for  a particular  year.
If  this POTW failed to issue  four of the  eight  required permits,
$12,000.00 in expenses would  be avoided for  that  year.

     Another approach to development of avoided costs is to estimate
the  labor and overhead costs  for particular  activities. This  approach
may  also be used in combination with Table 1, where  the budget does
not  cover costs for specific  implementation  requirements (e.g., 10
permitting or enforcement).   For example,  if each permit required  one
month of engineering  labor and  analysis at $36,000.00/year, each
permit would cost $3,000.00.  The total avoided cost of four permits
would also be $12r000*00.  The  cost of permit re-issuance  could be
lower than the initial issuance cost.   This  value would be entered
under the variable for annual operating and  maintenance expenses for

• .Criteria from RNC Guidance  that are  likely to be associated  with^
listed activity.

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                                  -5-
 a  particular year.   If- the  permits  were  issued  late,  as  opposed  to
 not  issued  at  all,  avoided  costs  (economic  benefit) could  be
 calculated  for the  period of  delay.

      If a POTW has  failed to  enforce  against  IDs  or delayed enforce-
 ment  against IDs, the  POTW  has  received  economic  benefit by avoiding
 or delaying that action.  Even  when specific  program  costs for
 enforcement can be  identified,  it may be difficult to quantify the
 avoided or  delayed  costs.   Where necessary, one approach to
 calculating the avoided costs by the  POTW for inadequate enforcement
 is to assume that each 10 violation would require a POTW enforcement
 response  (see  discussion in Pretreatment Compliance Monitoring and
 Enforcement Guidance  (PCME),  September 1986).  The expected response
 against the 10 would escalate with  the duration and magnitude of the
 violation,  either based on  the  POTW's own enforcement procedures or
 the Enforcement Response Guide  in the PCME.   As a guide  for the  cost
 to the POTW of each type of enforcement  response  and  the delay that
 may have occurred,  you may  wish to use the  table  below.  It is based
 on EPA1s-pricing factors and  the enforcement  response timeframes
 discussed in the RNC guidance.

 Table 2. Resource Cost and  Response Time foe  POTW Enforcement Actions

 Initial Response to•Violations   POTW Time  to Respond* Cost of Action
    Telephone calls                    5 days
    Warning Letters    .              10 days
    Meeting            *              30 days
    Demand Inspections                30 days

Pollow-op for Continued Moncoapliance

   On-site evaluation                 15 days
   Meeting                            30 days
   Formal Enforcement
     Administrative                   60 days
     Judicial                         60 days
   Penalty assessment and
     Collection                       60 days
in workdays

  0.05-0.2
  0.2
  0.5
  0.5-2.0
  0.5-2.0
  0.5

  10-50
  30-100

  2-50
* Response time reflects EPA's expectation as  to  the amount  of  time  in
which the POTW should take enforcement action  after  'notification  of  an
10 violation. .  Tor example, the  POTW initial  response to  notification
noncompliance should occur within 5 days when  it  is  a telephone call
and within 30 days when it is a Demand Inspection.

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                                 .6-
                        •
     The time required to complete a specific enforcement response
should be evaluated based on the enforcement procedures developed by
the POTW and the size and complexity of the 10.  SXOs with
significant noncompliance would be expected to require more POTW
effort to resolve the noncompliance.  The level of response should be
escalated in relation to the magnitude and duration of noncompliance.
The avoided enforcement costs would increase based on the number of
XUs that were in noncomplia.tce and not addressed by POTW enforcement.
The actual cost can be esti. ited from salaries.  EPA assumes each work
year consists of 220 workdays after leave and holidays are subtracted.
Typical EPA annual salaries and benefits  (assuming 15% of salary) are
as follows: inspectors $32,000., permit engineers $40,000, staff
attorneys and chemists $37,000.  However, it would be appropriate to
use the salary scale of the affected POTW, if available.

     The next three sections discuss the calculation of economic
benefit, gravity, and adjustment to the penalty for pretreatment
implementation violations.  In some cases you may have effluent
violations as well as implementation problems and additional penalty
calculations will be required for these violations.

     2)  Using BEH

     The BEN User's Manual provides basic instructions for entering
variables and discusses the*effect of changes in economic data-and
compliance dates on the estimate of'economic benefit. The Manual
describes the variables that are typically associated with
construction and operation of wastewater treatment systems; however,
there are a few special considerations for developing.pretreatment
implementation costs.'  If effluent violations are involved, a separate
BEN run should be made to calculate the economic benefit of inadequate
treatment, avoided operations and maintenance costs for the treatment
system, or any other cause not related to implementation of a
pretreatment program. ' The BEN estimates should be combined to develoj
the settlement penalty.

     The capital investment for pretreatment is usually related to
sampling and safety equipment, vehicles for inspections, and perhaps
laboratory facilities.  These typically have a shorter useful life (3
to 7 years)* than that which is assumed for pollution control
equipment (15 years is the standard BEN value for tankage and pumps).
The useful".life is an optional input variable.
* Onited states Tax Guide No. 17 categorizes real property,
  vehicles, and equipment according to.its useful life  for
  purposes of depreciation.

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                                 -7-

   ' Annual operating and maintenance  costs  related  to  pretreatment
 implementation  include  the costs  to  the  POTW of:   (a) IU  permitting;
 (b)  POTW monitoring* inspections, and  analysis of  IU compliance;  (c)
 legal and technical assistance, (d) cost  of talcing  enforcement  actions,
 (e)  updating local limits; and  (f) program administration.   The costs
 identified for  operation .and maintenance should  include all  salaries,
 supplies, maintenance,  and support necessary to  the  operation  of  the
 pretreatment program.   Most of  the avoided costs of  implementation
 will be the O&M expenses  (see previous discussion).  Since annual
 operating and maintenance costs, and  the  level of implementation may
 vary each year, separate BEN runs may  be needed  to determine these
 costs, depending on the specific period  of noncompliance.*

     The Ben variable "one time, non-depreciable expenditures" is not
 likely to be appropriate for inclusion in the BEN  penalty calculation
 for  POTW implementation cases.  All  expenditures for pretreatment
 implementation  are likely to be recurring* at some  frequency, so they
 are  not truly one-time  as, for example,  the  purchase of land.  Even
 the  development of local limits and  the  survey of  industrial users are
 likely to require periodic updating.   Most "set-up costs" were
 incurred as part of program development.  In addition,  a  POTW  does not
 pay  income tax, so depreciation does not affect  the  POTW's economic
 benefit.

     Economic benefit should be calculated from  the  initial  date  of
 noncompliance up to the time where the POTW  was or is realistically
 expected to be  in compliance.

 B) Gravity Component

     The gravity component of the existing Penalty Policy quantifies
 the penalty based primarily on  the characteristics and  consequences
 of effluent violations, although the amendment to  the Penalty  Policy
 adds a Factor E for non-effluent violations.  The  gravity of
 pretreatnent implementation violations is evaluated  primarily  on  the
 degree and pattern of failure to implement a required activity and
 the potential and actual impact of non-implementation.  Thus,  some
modification or amplification of the gravity factors in the  CWA Civil
 Penalty Policy  is needed to reflect  the  characteristics of
 implementation  violations.
*  BEN will adjust cost estimates  to current year dollars.
   POTWs are considered "not for profit" entities.

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                                -8-

                                             /
     Pursuant to the amended CHA Civil Penalty Policy, five factors
 (A-E)  are osed to evaluate gravity.  This Guidance presents the
 relationship of each factor to pretreatment implementation.  The
 methodology for calculation of the gravity component is the same as in
 the CWA Penalty Policy — that is each factor is calculated on a
 monthly basis with each violation presumed to continue until
 corrected.  The gravity amount equals the sum of factors A through E
 plus 1, multiplied by $1,000,00 for each month of violation.

      Note;  Where effluent violations also exist, they should be
 considered in the appropriate monthly gravity component.  Efflue:t
 violations are considered specifically under factor A, and they ray
 also increase the levels for factors B, C, and D.  All non-effluent
.violations vould be evaluated under factor E.   The penalty for
 effluent violations should be added to penalties for pr«treatment
 implementation violations.

      The basis for evaluation of performance on implementation is
 identified in the RNC Guidance.  The RNC criteria identify the :. -sis
 for evaluating implementation activities to determine the numbes of
 and most significant implementation violations.  Of course, where
 actual approved program requirements vary from the RNC criteria, the
 program requirements should be the basis for evaluating performance.

      The "Guidance on Bringing Enforcement Action Against POTWs for i
 Failure to Implement Pretreatment Programs*, August 4, 1988, discus
 guidelines for evaluating the severity of pretreatment implementation
 violations (see Table 3 and discussion in that guidance).

      The gravity factors as they are to be applied for pretreatment
 implementation cases are listed below:

 Gravity Factor A.   Significance of the Effluent Violation

     This factor should be applied without change from current CWA
 Penalty Policy methodology to effluent violations where they occur.
 This factor  is not applicable to failure to implement violations.

 Gravity Factor B.   Impact of the Violation

     Pailaze to implement may result in POTW permit effluent limit
 violations^, interference with the treatment works, pass through of
 pollutants^from inadequately regulated IDs, and/or sludge
 contamination which may cause or contribute to harm to the environment
 or.  in  extreme cases, a human health problem.  Both effluent violations
 and  all  RNC  criteria that are met by the POTW should be evaluated in
 selecting the value.  The violation that gives the highest factor
 value  should be used for each month.  The value chosen should increase
 where  the potential impact or evidence of an actual impact effects

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                                  -9-

-more  than  one  of  the  listed  categories.  Also, where a  POTW is
 Federally  funded  and  is  potentially damaged, a higher value  should be
 assigned:
                       •
      (i)    Zapact on  Human Health; or          Range: 10-Stat Max

      (ii)   Zapact on  Aquatic Environment; or   Range: 1-10

     (iii)   Potential  Impact  of  Inadequately    Range: 0-10
            Controlled 10 Discharges on  POTW


 Gravity Factor C.   number of Violations        Range: 0-5

      Each  RNC  criterion  that is met is counted as a violation for the
 month.  The more  criteria that  are met the higher the value chosen
 should be.  In addition, this "number of violations1* factor may  be
 weighted more  heavily to account  for serious violations other than  the
 most  significant  violation which  was accounted for in factor "A" or
 "E".  Effluent violations should  also be included under this factor as
 part  of normal Penalty Policy calculations.

 Gravity Factor 0. Duration of Moncoapliance   Range: 0-5

      This  factor  allows  consideration of continuing long-term
 violations  of a permit (including effluent limits, schedules, and
 reporting  requirements)  and  should include evaluation of all RNC
 criteria.   The value  should  be  increased if the same criterion is met
 for 3 or more months.  When  the violation is corrected  for  that
 criterion,  a value  of 0  is appropriate for the monthly  gravity '
 component  in the  months  following the correction.

 Gravity Factor B.   Significance of Bon-effluent Violations

      The significance of a violation of  an implementation
 requirement is evaluated based  on the percent of a requirement, that
 the POTW has failed to implement. All of the criteria  identified in
 the RNC Guidance  should  be evaluated to  identify the required activity
 for that month in which  performance has  been most inadequate.  That
 activity will be  deemed  the  most  significant pretreatment
 implementation violation, and gravity factor E should be determined
 for that violation.  Higher  values within the range could be used for
 violations  by  large POTW programs and for programs with high rates  of
 IU noncompUance.   Higher values  may be  appropriate in  such cases
 because ta% failure to implement  may result in a higher discharge of
 toxic coapouads to  the environment.  Factor E can also  be used to
 address other permit  violations such as  reporting or schedule
milestone  violations.                               "

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                                 -10-


% of a Requirement that  ,   '                            .
The POTW Failed  to                 Value Ranoe
Implement
                                                    v
80-100%                                3-10

41-79                           ,       2-7

20-40                                  1-4

0-19                                   0-3

C)  Adjustments
                                              -'  %
    1)  Recalcitrance  (to increase penalty)   Range: 0-150% of  the
                                              preliminary penalty
                                                >unt
     In addition to the discussion  in the CWA Penalty Policy,
recalcitrance includes consideration of whether the POTW continued in
noncompliance after notification of the violations.  The existence of
audits or PCZs and follow up letters identifying these violations to
which the POTW has failed to respond, generally indicate that
recalcitrance should be increased.  If the POTW has failed to comply
with an administratively-imposed compliance schedule, the
recalcitrance adjustment should be  increased.  Recalcitrance is
indicated because the POTW was reminded of the requirements and
notified of its violation, and yet  failed to remedy the situation.

     2)  Ability to Pay (to decrease penalty).

     The ability to pay adjustment becomes an issue when the
municipality is incapable of raising sufficient funds to pay the
proposed penalty.  Ability of the municipality (or sewerage authority
to pay should rarely be a factor in pretreatment implementation cases
since few involve large capitalization projects.  Thus, the economic
impact on the community from a penalty will be relatively small
compared to the capital and 04M costs associated with the wastewater
treatment system.

     Fund* to pay a penalty can come from a variety of sources withir
the municipality including unrestricted reserves, contingency funds,
and any annual budget surpluses.  The municipality could also make a
one time assessment to the violating ZOs or to all'users of the
system to cover the penalty amount.  Where there is insufficient cast
on hand to pay the entire penalty immediately, a payment plan can be
developed which raises the needed funds over a specific time period
(e.g.,  6 - 12 months).  This spreads the impact of the penalty over <
longer  period.  Where a POTW chooses to assess all users to cover t*
penalty, the impact is likely to be small.  Even a small municip-^
with 3,500 connections (service population about 10,000) with an

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                                    -11-

 «xisting  sewer  charge  of  510/month  could  raise  rates  by  10%  ($1)  for
 12 months and generate-sufficient cash to pay a penalty  of almost
 $50,000,  which  equates to about  $.35/capita/month.

      In determining whether ability to pay will become an  issue,  the
 standard  Financial Capability  Guidebook procedures  can be  used,   while
 a specific municipality's debt situation  could  become an issue,  the
 procedures primarily look at the increase in  user fees which would be
 needed to generate the penalty amount compared  to the median household
 income (MHI) of the community.  Where the total wastewater treatment
 burden divided  by the  MHZ  is less than the standard indicators
 (between  1.00 - 1.75%  of  the MHIis  considered an affordable  sewer
 rate), ability  to pay  is  not usually considered to  be a  problem.

      3.   Litigation Considerations  (to decrease penalty)

      The  legal  basis and  clarity of the implementation requirements
 of an approved  program and an  NPOES permit are  important factors
 in assessing the strength  of the case.  Where requirements are
 ambiguous, the  likelihood  of proving a violation is reduced,  and  this
 may be a  basis  for adjusting the penalty  amount.*   Otherwise,
 assessment of this factor  will depend largely upon  the facts of  the
 individual case.

 III.  EXAMPLE OF PBMALTT  CALCOLATZOM                               '

      The  RNC Guidance  (See pages 12 and 13) includes  two examples of
 POTWs that failed to implement their approved pretreatment programs.
 The "Hometown"  example  will be used as a  basis  for  computing a penalty
 to illustrate this Guidance.   As noted previously,  this example does
 include a  penalty calculation  for effluent violations.

 A) Revised Scenario:

 Hometown's pretreatment program  was approved  in June  1985.   The
 annual implementation  costs identified in the approved program were
 $100,000.00, plus the cost for issuing each SID permit. The  NPDES
 permit required an annual report fifteen  days after the end  of the
 year, beginning January 15, 1986.   The approved program required  that
 all 15 permits  be issued  by June 30, 1986.  An August, 1986,  audit of
 the program revealed that  the  POTW  had failed to issue ten required
 permits and bad not inspected  its IBs as  of that date.   Zn addition,
 the POTW  failed to submit  its  1986  annual report on time.  The State
 issued an administrative  order on March 31, 1987 that required sub-
mission of an annual report by April 30,  1987 and permit issuance by
 June  30,   1987 and sampling inspections of all SIUs  by August 30,  1987.
 The annual report-was  submitted  September 30, 1987

 * See OECM/OWEP "Guidance on Bringing Enforcement Actions  Against
  POTWs for Failure to  Implement Pretreatment Programs*.   August  4,
  1988, for further discussion on assessing the strength of  a case.

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                                 -12-
but as of January 31, '1988 only might permits were issued and
the IDs were not inspected.  This facility was on the Exceptions List
for failure to implement its approved pretreatment program and for
effluent violations.  Thus, judicial action is appropriate.  Full
compliance was expected by April, 1988.  Instances of noncompliance
are tabulated below for both effluent violations and pretreatment
implementation violations.              _.'.•>

   1.  Effluent Violations
Monthly Average Effluent Limit Violations
Permit Limitss
TSS
Cyanide
  3 tog /I;
0.01mg/l;
                                          BOO
                                          Copper
                                                   30mg/l;
                                                 0.200 mg/1
August,  1986
November,  1986
March,  1987
April, 1987
June, 1987 .
August, 1987
October, 1987
December, 1987
                                             Value  (all mg/1)

                                             TSS  45
                                             Cyanide 0.015
                                             Copper  0.25

                                             TSS  37
                                             Cyanide 0.012
                                             Copper  0.3

                                             TSS  41
                                             Cyanide 0.018
                                             Copper  0.28
                                             BOO  47

                                             TSS  38
                                             Cyanide 0.016
                                             Copper  0.3
                                             BOO  43

                                             TSS , 40
                                             Cyanide 0.021
                                             Copper  0 . 4

                                             TSS  44
                                             Cyanide 0.014
                                             Copper  0.3

                                             TSS  41
                                             Cyanide 0.03
                                             Copper  0.4

                                             TSS  37
                                             Cyanide 0.016
                                             Copper  0.3

                                             TS'S  39

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                                  -13-

                              . • •
    2.'Pretxeataent Implementation Violations

    Description of violation          Initial Date         Compliance
    """     Violations                  off Noncompliance*        Date"—

    Failed to Issue permits             6/30/86             60% Issued
     (RNC criterion A)            ,                          (1/31/88)

    Failed to Inspect 10s               8/30/86             53% Inspected
     (RNC criterion B)                                      (1/31/88)

    Failed to Submit Annual Report      1/15/87             (9/30/87)
     (RNC criterion F)

 *  Under the sane circumstances, this could be the date of program
.approval.

 The minimum civil penalty for settlement can be determined as follows:

 3. Estimates of Avoided Costa for Implementation Violations

      The effluent violations are indicative of interference and pass-
 through caused by 10 inputs of cyanide and metals that should be
 controlled by implementing pretreatment.  The POTW has operated and
 maintained secondary treatment.   Thus, the economic benefit is only
 calculated for pretreatment implementation violations. Since the
 approved program provided no information on the cost of issuing 10
 permits* an estimated cost has to be developed.  The implementation
 costs are considered operation and maintenance costs (limited to
 certain time periods) for the BEN calculation of economic benefit.
 The BEN inputs and rationale are presented below for each violation.

       1)  issue permits  9 S3,000.00/permit

           7/86 -9/87, 10 unissued permits  avoided cost-$30,000.00
           10/87 - 1/88, 7 unissued.permits  avoided cost-S21,000.00

      EPA uses a pricing factor of 40 days for issuing major,  non-
 municipal, technology-based NPDES permits.  SIO permits should be
 issued  more quickly because there is less public notice.  While the
•10 control mechanisms are likely to require similar types of
 evaluation and technical review as the comparable industries with
 NPDES permits, they are also likely to be smaller in size.  Site and
 sampling data should already be available to the POTW, and there is no
 need  for State certification as there is for EPA issued permits.
 Balancing the above facts with the limited POTW experience in issuing
 permits, thirty days was selected as an average time to issue a permit
 at a  cost of $100.00 per day.

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                                 -14.

      2)   Inspection costs

           7/86 • 12/86., no  inspections  avoided  cost-S19,000.00/yr
           1/87 - 9/87,  60% uninspected avoided  eost-$ll,000.00/yr
           10/87.- 1/88, 50% uninspected avoided  cost-S  9,S00.00/yr

      Prom Table 1, use the sampling and  industrial  review
percentage (19% for a medium-size program), multiplied  by the  total
annual program implementation costs  ($100,000).   Therefore,
inspections are estimated to cost $19,000.00/year.   The POTW began
conducting inspections after the audit—40% of the SZOs were
inspected  by January, 1987, and 50% were  inspected by October,  1987.

      3)   Annual report - $5,000.00

     Annual report costs are presumed to  be part of  program
administration.  This portion was estimated to be 5% of the  total
program costs  (See Table 1).

B.  Economic Benefit Component

     BEN Inputs for each variable each are shown below:

     1. Case Name»Hometown                                     '  . "
     2. Initial Capital Investment* 0
     3. One-time non-depreciable expenditures* 0

     Four  separate BEN runs were made for avoided costs from
permitting, inspection, and reporting violations. . The  avoided
cost changed as permits were issued and inspections  were completed.
The time periods correspond to information obtained  from the POTW
in the-senario.
                                          <
                                            BBH  Ron
4. Annual OtM costs
  (all 1985 dollars)
  <«                                        . *          '
 a)  permits                      30000    30000    30000     21000
    ($3,000 each)         (10 unissued)   (10)      (10)      (7)

 b)  inspections                          19000    11000      9500
    (% inspected)                        (0%)     (40%)      (50%)
                  •                                              •
 c)  annual report .                           .     5000
                                    •
5. Initial Date Noncompliance     7/86        8/86    1/87   ' '  10/87

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                                 -15-

   9          '                      -                     •    .

 6. Compliance Oat*           .    7/86      12/86    9/87       4/88

 7.  Penalty paid                  4/88       4/88    4/88       4/88


            (Remaining variables use standard values)


 Results from BBM
Run- 1
Run 2
Run 3
Run 4
3,150
20,918
36,659
15,803
         Total       575,630
    Economic  Benefit       ,


 D.  Gravity  Component


     In  developing  the  gravity  amount,  both  effluent  and
 pretreatment implementation  violations  should  be  included.   A
 table showing  the gravity calculation is  provided below,  along
 with a general description of the rationale  for selection of
 values.

     The values  chosen  for June-August  1986  reflect both  the July
 and August effluent violations  and the  ten unissued permits  which
 were to  have been issued by  June  30.  The failure to  issue permits
 was identified i-n the August audit and  treated as the most signi-
 ficant violation and given a "3"  under  Factor  E beginning in the
 month of July. (This factor  could have  been  higher if the SZDs  were
 major sources  of toxics).  September, 1986 represented  the third month
 that the pretreatment implementation violation had continued, so
 Factor C was assessed at "1".   Both effluent and  implementation viola-
 tions were counted  under Factor 0. The value  assessed  for Factor B,
 was related  to the  presumed  10  impacts  on NPDES permit  violations.
 There was no evidence of any impact to  the aquatic environment  or
 human health from the effluent  violations.   For January,  1987,
 Factors  C**nd  0  were increased  to reflect the  continuing
effluent ead implementation  violations  and the additional violations
of the AO schedule.  Factors were reduced in September, 1987 to reflec
submission of  the annual report,  the issuance  of  some permits and the
progress with inspections.

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                                 -16-
Mcnth/Tear
June, 1986
July
August
Sept
Oct.
Nov.
Dec., 1986
Jan., 1987
Feb.
Mar.
Apr.
May
June  •
July
Aug.
Sept.
Oct.
Nov.
Dec.
Jan. 1988
Feb.
Mar.
Factors
A
0
3
2
0
3
4
9
9
9
4
5
9
3
9
4
9
3
0
1
2
0
0

B
0 ,
1
1
0
0
1
0
0 '
0
1
2
0
2
0
2
0
2
0
0
0
0
0

C
0
0
1
1
1
1
1
2
2
2
2
2
2
2
2
1
1
1
1
1
1
1

D
0
0
1
1
1
1
1
2
2
2
2
2
2
2
2
2
1
1
1
1
1
0

B
0
3
3
3
3
3
3
3
3
3
3
3
3
3
3
2
2
2
2
2
2
1

+1
1
. 1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
•
1
1
1

Total
1000
8000
9000
6000
9000
11000
6000
8000
8000
13000
15000
8000
13000
8000
14000
6000
10000
5000
6000
7000
5000
3000
179,000

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                               -17-
 B.   Adjustment Factors

     1.  Recalcitrance

     A factor ranging from 0 percent  (good compliance  record,
cooperation in remedying  the violation)  to_150 percent (extremely
recalcitrant, despite repeated attempts  to encourage compliance)
of the total of the Economic Benefit  and Gravity Components may
be used to increase the penalty based upon the history of
recalcitrance exhibited by the POTW.  In this case, the POTW was
advised of the implementation problems through an audit and an .
alternate schedule for compliance was established under an
administrative order.  Implementation was improved, but it  was
still inadequate.  A factor of 20% was used because the POTW has
failed to meet an administrative order schedule to fully implement
its approved program.

     Additional penalty .20 x ($75,630 * 179,000) » $  50,800

     Penalty Running total          $ 304,800


     2.  Ability to Pay (Subtraction)

     Several factors need to be considered in evaluating the
defendant's ability to pay — for example, domestic and industrial
user fees,  the cost of implementation relative to other
municipalities, the size of the industrial users, the  type  of
industrial base, and the financial condition of the city and its
lUs.  The combined bills for SZOs were 10% of all user  charges,
and IUs contributed 8% of the flow in 1986.  The Hometown POTW is
10 MGD, with over 25,000 service connections and a $200 annual
sewer rate.  Assuming each connection represents a household with
a MHZ of $20,000, Hometown could afford  a rate increase of  about
$12 annually per household.  (EPA considers affordable  sewer rates
to range from 1.5 to 1.75 percent of  the MHZ (i.e.,. $250 to $275
per year)]. The POTW has an A Bond rating, strong financial
condition,  and has maintained the same user fees since 1984, prior
to approval of the pretreatment program.  There are no fees for
permit issuance, discharger applications, or IB inspections.  The
results of the financial capability analysis indicate  that  if
Howmetown used a general sewer rate increase to fund the penalty,
it would be considered affordable.  At this time, no adjustment
for ability to pay seems appropriate.


Penalty        Running Total          $  304,800

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                               -18-
     .3.  Litigation Consideration*  (Subtraction)

     The federal case for Hometown  is a strong one.  The
POTW has specific requirements for  permitting and inspecting its
industrial users.  These are specified in the approved program and
were incorporated into the HPDES permit in June 1985. The
pretreatment audit identified specific violations, and the POTW
began to address them.  There is no evidence that the POTW was
confused or that the requirements for implementation have changed.
The failure to implement has contributed to permit limit
exceedances for cyanide and copper, which are of concern.  The
large industrial community is an underused source of revenue for
implementation and the current implementation violations may have
provided them with some economic benefit.  Therefore* there is no
basis for adjustment for litigation considerations.


Final Penalty for Settlement                 $ 304,80Q
IV.  Intent of Guidance

     The guidance and procedures set out in this document are
intended solely for the use 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
with the United States.  The Agency reserves the right to act at
variance with these guidance and procedures and to change them at
any time without public notice.  In addition, any settlement
penalty calculations under this Guidance, made in anticipation of
litigation, are likely to be exempt from disclosure under the
Freedom of Information Act*  As a matter of public interest, the
Agency may release this information in some cases.

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                                                                    VLB.31,
"ENFORCEMENT INITIATIVE FOR FAILURE TO ADEQUATELY IMPLEMENT APPROVED LOCAL
PRETREATMENT PROGRAMS", dated February 1, 1989.

-------
     i         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     «                       .               .  .

                           FEB   I 1989               .
MEMORAMDDM

SUBJECT:   Enforcement  Initiative  for  Failure to  Adequately
           Implement Approved  Lo,cal  Pretreatment
           Programs
PROM:     Jame/'TrrTlder,  Director
                  of Water  Enforcement  and  Permits  (EN-335)
          Edward  E.  P.eich
          Deputy  Assistant Administrator
             for Civil Enforcement  (LE-133)
                                                             /
TO:       Regional Water Management Division Directors
          Regional Counsels
                               x  *>     '    -'

     As part of our  continuing policy to  seek .improvement  in
the pretreatnent  implementation efforts of approved local
pretreatment programs on a national basis, we have decided to
initiate a nationally-coordinated  failure-to-implement
pretreatnent program enforcement initiative.  This initiative
will address inadequate implementation efforts of local
pretreatment programs by taking formal enforcement actions
against noncomplying POTWs in every Region within a* specific
timeframe.

     Effective implementation of approved pretreatment programs
by municipalities is critical to controlling the discharge of
toxic pollutants  to  surface waters; protecting the substantial
financial investment in POTWs; protecting POTW worker health and
safety; and preventing the contamination  of sludge.  Yet, data
from the most recent QNCR report indicates that over 250 POTWs
were reported for various aspects  of  inadequate pretreatment
program implementation.  Preliminary  data from the Pretreatment
Permits and Enforcement Tracking System (PPETS) indicates that
approximately 47% of POTWs with approved  local pretreatment
programs may be in violation of one or more of the three
pretreatment reportable noncompliance (RNC) criteria related to
issuance of control  mechanisms, inspections, or adequacy of

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                               -2-    -   -   .

enforcement, against significant  industrial  users  in  significant
noncompliance  (SMC).  Given the  fact  that 90%  of  the pretreatment
programs  have  been approved for  at  least three years,  we  believe
that  these  POTWs have had adequate  time to  fully  implement  their
programs.                      '
            •             •
      Thus*  we  believe a national enforcement initiative is  both
appropriate and necessary to ensure that approved local
pretreatment programs are fully  implemented across the country.
We consider such an enforcement  initiative  as  our top water
quality enforcement priority* for this year.  On January 17  and
18, Bill  Jordan and John Lyon Held  conference  calls  with  your
Compliance  and Regional Counsel Branch Chiefs  and there was
general support from all the Regions  for this  enforcement
initiative.  In fact, several Regions already  had designated
pretreatment enforcement as their top priority.

      The  initiative will include both administrative penalty
orders  (APOs)  and civil judicial actions, but  we  would like to
see each  Region contribute at least one civil  judicial referral
to the initiative,  Regions which directly oversee larger numbers
of approved local pretreatment programs should contribute
additional  referrals and administrative penalty orders.   States
which have  received approval to administer pretreatment programs
are invited to participate in this-  initiative, with  State
Attorneys General filing civil judicial ceres  in  State courts.
Where appropriate, Regions and States should include key  .'
industrial  users which are violating pretreatment standards and
requirements as part of a POTW civil referral  or  proposed APOs.
                               •     •
     EPA Regions are requested to provide EPA  Headquarters with a
proposed list of POTW candidates (including those in States with
approved pretreatment programs)  for this enforcement initiative.
Among, the criteria which the Regions should consider in the
selection of candidates are the following:

     p    The POTW has been listed on the QNCR for
          pretreatment violations for more than two
          quarters,

     o    The POTW has discharges which impact near.-coastal
          waters, and enforcement would support the Agency's
          Near Coastal Water Initiative/

     o    The POTW exceeded one or more of the pretreatment
          RNC criteria or other specific requirements in
          their permit or approved program  (The magnitude of
          such exceedances should also .be considered.}/ or

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                               -3-
     o    The POTW has unresolved TRC or chronic effluent
          violations (including heavy metal effluent
          violations) which appear to be related to
          inadequate pretreatment implementation.

All candidates should have an NPDES permit which, at a minimum,
requires implementation of the approved pretreatment program.
Also, the approved program should provide an adequate statement
of program requirements.

     Upon review of the Regions;1 list of candidates, Headquarters
may inquire about additional POTW enforcement candidates as
appropriate.  EPA'Headquarters staff will be available for two-
day Regional visits  (as necessary) to provide a better
opportunity for face-to-face discussion of POTW enforcement
candidates and details of the initiative.
below:
     Key dates in the schedule for this initiative are shown
     o    2/6-3/1/89     Review of QNCR, PPETS, etc. by
                         Region
          3/3/89
     o  3/6-4/7/89
     o  3/20-5/31/85
     o  4/3-6/2/89
Submission of PCrw
candidates(design*ted as
probable referre s or APOs)
to EPA Headquarters by Regions

Dialogue* negotiation, and two-day
visits (as necessary) to Regions to
discuss and confirm candidates

Preparation of referral/APO
packages by Regions

Submission of referrals and APOs
(as appropriate) by Regions to EPA
Headquarters

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                               -4-
     o   4/3-7/7/89       Headquarters review of referrals
                         and APOs  (as appropriate)  and
                         subsequent referral of civil cases
                         to the Department  of Justice

     o   4/3-8/18/89      Civil judicial  cases filed by  the
                         Department of Justice and  proposed
                         APOs issued
     -."••.
     o   8/21/89          National press  release regarding
                  *   '    the initiative  (will  include
                         similar cases filed and APOs issued
                         since 1/1/89)

     Regarding APOs, please note that Headquarters  review of APOs
will only be required for those Regions  which  have  not yet
fulfilled the concurrence requirements.identified in the guidance
on administrative penalties issued on August 27, 1987.  Regarding
referrals, neither Headquarters nor the  Department  of Justice.
will stockpile or hold cases expressly to fit  the proposed filing
window but will continue to move the cases  through  the system.

     Documents such as the August 4, 1988  'Guidance on Bringing
Enforcement Actions Against POTWs for Failure  to Implement
Pretreatment Programs" and the December  22,  1988 "Guidance on
Penalty Calculations for POTH Failure to Implement  an Approved
Pretreatment Program" should be utilized in  this initiative as
well as  in other formal enforcement actions  for  failure to
implement.

     In regard to past civil referrals and APOs  for failure to
implement, for the purpose of this initiative,  Headquarters will
credit the Regions with civil referrals which  are still in the
review pipeline but not yet filed.

     In a related matter, a preliminary  review of PPETS indicates
that data is still missing for the following large cities:
Boston, Buffalo, Detroit, St.  Louis, Phoenix,  Tucson,  San
Francisco, Honolulu, Seattle,  and Portland.  Regions should make
every effort to provide such data as soon as possible,  but no
later than March 6, 1989.

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                               -5-          .

     Thank you for your cooperation  in  this effort.   If you have
any questions or concerns in regard  to  this enforcement
initiative, please contact Jim Elder  (FTS-475-8488) or Bill
Jordan  (FTS-475-8304) in OWEP or John Lyon  (FTS-475-S177)  in
OECM.   If your staff wishes to discuss  specific details of the
initiative, including the selection process, proposed Regional
visits, merits of a potential case, etc., please contact either
Andy Hudock (FTS-382-7745) or David Hind in  (FTS-475-8547) of our
respective staffs.   •*''*'.•
                  i
cc:  Rebecca Manner, OK
     David Buente, DOJ
     Cynthia Dougherty, OWEP
     Susan Lepow, OGC
     Regional Counsel Water Branch Chiefs
     Regional Compliance Branch Chiefs
     Regional Pretreatment Coordinators/Liaisons

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                                                                   VI.B.32,
I "Guidance For Developing Control Authority Enforcement Response Plans",
dated September, 1989.  Table of Contents only.

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2QDO

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vEPA
            United States
            Environmental Protection
            Agency
             Office of Water
             (EN-338)
Septemoer 1989
Guidance For Developing
Control Authority
Enforcement Response Plans
              POTWS.
                    TRACKING )OCWFCXINSPECTIONS
                                        ' Prinmd on ftocydod Pat*

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON. D.C. 20460
                              DEC  4*89
                                                            office o*
                                                            WATCH
To All Approved Pretreatnent Programs:

     One of the most important requirements of pretreatment
program implementation for Publicly Owned Treatment Works  (POTWs)
is an effective enforcement program to deal with Industrial User
(IU) noncompliance.  EPA expects POTWs to identify all
violations, to respond with appropriate action and to follow up
those violations with escalated levels of enforcement, if needed
to ensure compliance.  In January 1990 EPA expects to promulgate
amendments to the General Pretreatment Regulations requiring all
POTWs with approved pretreatment programs to develop enforcement
response plans describing how the POTW will investigate and
respond to instances of noncompliance.

     In response to this coming requirement, the Office of Water
Enforcement and Permits has developed the attached "Guidance for
Developing Control Authority Enforcement Response Plans".  This
Guidance is intended to provide municipal pretreatment personnel
with recommendations for assessing enforcement authorities,
determining appropriate enforcement roles for personnel and
deciding upon enforcement remedies for specific violations.  To
assist Control Authorities in meeting the changes to the General
Pretreatment Regulations, the manual includes a model enforcement
response guide and a detailed analysis of each of the common
enforcement remedies.

     If you have any questions or comments concerning the
development of your own Enforcement Response Plans, please
contact your Approval Authority or the Pretreatment Coordinator  .
in your USEPA. Regional Office.

                                   Sincerely,
                                   James R. Elder, Director
                                   Office of Water Enforcement
                                     and Permits

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          GUIDANCE FOR
DEVELOPING  CONTROL AUTHORITY
     ENFORCEMENT RESPONSE
              PLANS
          September 1989
 Office of Water Enforcement and Permits
  U.S. Environmental Protection Agency
         401 M Street, SW
       Washington, DC 20460

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                              CONTENTS


CONTENTS                                                              PAGE

DISCLAIMER                                                            ii

1.   INTRODUCTION                ,                                     l-l

     1.1  PURPOSE OF THIS MANUAL                                      1*1
     1.2  ELEMENTS OF AN ENFORCEMENT RESPONSE PLAN                • l-l
     1.3  BENEFITS OF AN ENFORCEMENT RESPONSE PLAN                   1-2
     1.4  ORGANIZATION OF THE MANUAL                                 1-3

2.   DEVELOPING AN ENFORCEMENT RESPONSE PLAN                        2-1

     2.1  IDENTIFYING APPROPRIATE PERSONNEL                           2-1
     2.2  REVIEWING THE INDUSTRIAL USER INVENTORY                     2-2
     2.3  ESTABLISHING OR REVIEWING COMPLIANCE MONITORING
         PROCEDURES                                                  2-3
     2.4  CREATING PROCEDURES TO SCREEN DATA                          2-3

3.   EVALUATING THE SEWER USE ORDINANCE                              3-1

     3.1  NATURE AND PURPOSE OF A SEWER USE ORDINANCE                3-1
     3.2  ASSESSING AUTHORITY TO IMPOSE PRETREATMENT REQUIREMENTS    3-2

         3.2.1   Authority Over All Industrial Users                              3-2
         3.2.2   Implementation of Federal Program Requirements                    3-2
         3.2.3   Enforcement Authority Under State Law               •     .       3-3
         3.2.4   Identifying Obstacles to Enforcement                             3-3

     3.3  EXAMPLE SEWER USE ORDINANCE ENFORCEMENT PROVISIONS        3-7

         3.3.1   Administrative Enforcement Remedjes                            3-7
         3.3.2   Judicial Remedies                                           3-9
         3.3.3   Supplemental Enforcement Remedies                             3-10
         3.3.4   Affirmative Defenses                                         3-11

4.   DEVELOPING AN ENFORCEMENT RESPONSE GUIDE                       4-1

     4.1  ESTABLISHING A RANGE OF ENFORCEMENT RESPONSES               4-1

         4.1.1   Magnitude of the Violation                                    4-2
         4.1.2   Duration of the Violation                                     4-3
         4.1.3   Effect on the Receiving Water                                  4-3
         4.1.4   Effect on the POTW                                         4-3
         4.1.5   Compliance History of the User                                 4-4
         4.1.6   Good Faith of the User                           v           4-4

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                           CONTENTS (Continued)


CONTENTS   "                                                                 PAGE

      5.4   CIVIL LITIGATION                                                    5-4.1

           5.4.1   Legal Authority Necessary to Use Civil Litigation                      '5-4.1
           5.4.2   When to Pursue Civil Litigation                                    5-4.2
           5.4.3   How to Pursue Civil Litigation                                     5-4.5

      5.5   CRIMINAL PROSECUTION                                             5-5.1

           5.5.1   Legal Authority Necessary to Use Criminal Prosecution                 5-5.2
           5.5.2   When » Use Criminal Prosecution                                  5-5.4
           5.5.3   How to Use Criminal Prosecution                                   5-5.5
           5.5.4   Advantages and Disadvantages of Criminal Prosecution                  5-5.8

      5.6   TERMINATION OF SEWER SERVICE                                    5-6.1

           5.6.1   Legal Authority Necessary to Terminate Service                  '      5-6.1
           5.6 J   When » Terminate Service                                        5-6.2
           5.6.3   How to Terminate Service                                         5-6.3

      5.7   SUPPLEMENTAL ENFORCEMENT RESPONSES                           5-7.1

           5.7.1   Legal Authority Necessary fix Supplemental Enforcement
                  Responses                                                      5-7.1
           5.7.2   Supplemental Enforcement Responses for Which Specific
                  Legal Authority is Necessary                                       5-7.1
           5.7.3   Supplemental Enforcement Responses for Which Specific
                  Legal Authority is Not Necessary                                    5-7.5
APPENDIX A-GLOSSARY OF TERMS RELEVANT TO ENFORCEMENT               A-l

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                              TABLES


 TABLE                       TITLE                                 PAGE

 3-1       EVALUATION OF CURRENT ENFORCEMENT RESPONSES              3-4

 M.I     VIOLATIONS WHICH MAY BE ADDRESSED BY A NOTICE OF VIOLATION 5-1.3

 5-7.1     SUPPLEMENTAL RESPONSES FOR WHICH SPECIFIC LEGAL AUTHORITY
         IS NECESSARY                                               5-7.3

 5-7.2     SUPPLEMENTAL RESPONSES FOR WHICH SPECIFIC LEGAL AUTHORITY
         IS NOT NECESSARY                                           5-7.3


                             FIGURES


 FIGURE                       TITLE                                  PAGE

 M.I     EXAMPLE NQV                                              5-1.4

 5-3.1     EXAMPLE CEASE AND DESIST ORDER                             5-3.8

 5-3.2     EXAMPLE CONSENT ORDER                                    5-3.10

 5-3.3     EXAMPLE SHOW CAUSE ORDER                                .5-3.12

 5-3.4     EXAMPLE COMPLIANCE ORDER                                 5-3.14

 5-4.1     THE OVIL LITIGATION PROCESS                                5-4.7

 5-5.1     CIVIL LITIGATION VS. CRIMINAL PROSECUTION                    5-5.2

 5-5.2     STEPS IN CRIMINAL PROSECUTION                              5-5.7

5-6.1     CONTENTS OF NOTICE OF TERMINATION OF SERVICE               5-6.4

5-6.2     EXAMPLE TERMINATION ORDER                                5-6.5

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                                                                    VI.B.33.
I "FY 1990 Guidance for Reporting and Evaluating POTW Nonconpliance with
Pretreatment implementation Requirements1*, dated September  27,  1989.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON. O.C 204«0
                                                          O'MCIO*
 SUBJECT:   FY 1990 Guidance for Reporting  and Evaluating
           POTW Noncompliance'with  Pretreatment
           Requirements
 ntOMi      JaaesaPTiaerr Director
           Offiar of water Enforcement  and Permits  (EN-335)

 TO»        Regional Water Management  Division  Directors,
             Regions I-X
           NPDES State Pretreataent Program  Directors


     Attached is the final "FY  1990  Guidance  for Reporting and
 Evaluating Noncoapliance with Pretreataent  Zapleaentation
 Requirements".   This Guidance defines  criteria  for determining
 which  pOTWs should be reported  on the  Quarterly Noncoapliance
 Report (QNCR)  for failure to implement pretreataent requirements
 and  criteria for determining which pretreataent violations by
 POTWs  aeet the level of significant  noncoaplianca  (SVC).  it also
 establishes timely and appropriate criteria for responding to
 noncoapliance for pretreataent  iapleaentation violations.  The
 timely and appropriate definition adopted for the  pretreataent
.program is the same as for the  KPDES program.

     The comments received from you  on the  August  9,  1989 draft
 were timely and thoughtful.  Perhaps the most frequent  comment
 was  the recommendation that we  drop  the separate definition for
 reportable noncoapliance (RNC).  As  indicated in the  August 9
 letter,  a workgroup is evaluating possible  changes to the
 Quarterly Noncoapliance Report  and RNC/SNC  reporting  system.  The
 workgroup should complete its assessment and  recommend  change* in
 FY 1990.   A final decision as to whether to continue  the use of
 both an RNC and an SNC definition will await  the recommendation
 of that group.   For FY 1990, we will use both the  RNC and SNC
 definitions).

     Two commenters suggested that the criterion addressing
 issuance of control mechanisms  established  an excessively long
 timeframe (180 days)  for permit issuance and  reissuance.
 Suggestions were made to shorten the timeframe  for ZU permit
 issuance and reissuance to as little as 90  days.   While we did
 not  make this change, we have added  to the  SNC  definition a
 provision that EPA Regions and  States  may designate a POTW as  in
 significant noncompliance if any violation  substantially
 interferes with the ability of  the POTW to  attain  program
 objectives.
                                                                ZX9

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              '-..-'     •          -2-            •


              The FY 1990 SPMS requirements include two Matures for
         POTW pretreatment implementation:  1)  WQ/E-5,  the number and
         percent of approved programs in significant noncompliance with
         pretreataent implementation requirements; and 2)  WQ/E-IO,
         the number of POTWs that meet the criteria for reportable
         noncompliance.  We will trade performance oh both these
         measures for FY 1990 as a means of evaluating the efficacy of
         the new SNC definition.

              Regions and States are expected to initiate  timely
         and appropriate actions to resolve instances of significant
         noncompliance/ including POTW pretreatment implementation
         violations.  POTWs which meet the definition of SNC for
         pretreatment implementation and are not addressed on a timely
         basis will be carried on the Exceptions List until they have been
         resolved or received a formal enforcement response.  All POTWs
         with approved pretreatment programs should be tracked for both
         RNC and SNC.

              Zf you have any questions regarding the use  of this
         document,  you may contact me (475-848t) or Richard Kozlovski,
         Director,  Enforcement Division (475-8304).  The staff contact is
         Anne Lassiter, Chief, Policy Development Branch (475-8307).


         Attachment
7GIG

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    FY 1990 GUIDANCE FOR REPORTING AND EVALUATING
POTW NONCOMPUANCE WITH PRETREATMENT REQUIREMENTS

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                           TABLE OF  CONTENTS
     *.-              •                              .  • .
      —  •                                       ,        Page
 I.   Executive Summary           .".,    •                    1
 II.  Introduction                                         2
     A.   Background                                      2
   _  B.   Existing Rule                                   3
     C.   Determination of Inadequate  Program              4
          Implementation for QNCR Listing
 III.    Applying the Criteria                             7
     A.   Level I Criteria                                7
           1.   Failure to Enforce Against                  7
               Pass Through and  Interference
           2.   Failure to Submit Pretreatment              9
               Reports Within 30 days
           3.   Failure to Meet Compliance                  9
               Milestones by 90  days or More
     B.   Level IZ Criteria                              10
           1.   Failure to Issue  Control Mechanisms        10
               to Significant IUS in a Timely
               Fashion
           2.   Failure to Inspect or Sample               il
               Significant Industrial  Users
           3.   Failure to Enforce Pretreatment            ll
               Standards and Reporting Requirements
           4.   Any Other violation(s)  of Concern.         15
              .to the Approval Authority
IV.   Compliance Evaluation          .                   15
v.    Reporting on the QNCR                             20
     A.  Format                                  "      20
     B.  Description of the Noncompliance               21
     C.  Compliance Status                              22
VZ.   Examples  of  Reporting on  the  QNCR                  23
VIZ.  Response  to  POTW significant  Noncompliance for    24
      Failure to Implement Approved Pretreatment
      Programs

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 X.   EMcutire Summary

     TIM 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 pretreataent
 program, and to compile national statistics on noncompliance for
 the  NPOES 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 POTHs are now approved.  Pretreatment will be
 the  primary mechanism to control toxic and hazardous pollutants
 which may enter the  POTW or its sludge.  Therefore, it is vital
 that EPA and the approved States routinely evaluate POTW
 compliance with the  requirements of their approved program and
 report POTWs that have failed to adequately implement their
 approved program.

     This Guidance is intended to assist Regions and approved
 States to evaluate and report POTW noncompliance with
 pretreatment requirements and to take formal enforcement action
 where violations are of a significant nature.  The Guidance
 explains the criteria that should be used to evaluate principal
 activities and functions necessary to implement the program.  In
 some cases, approved States and Regions may need to modify the
 program and/or NPOES permit because the existing requirements are
 inadequate or because conditions have changed.  In general, those
 POTWs that meet the  definition of reportable noncompliance should
 be priorities for resolving the inadequacies in approved programs
 or permits.  POTWs that meet any Level I criterion or two or more
 Level II criteria are considered to be in significant
 noncompliance.  In addition, the Region/approved State may
designate any failure to implement violation as SNC if it
 substantially impairs the ability of the POTW to achieve its
program objectives.  POTWs with violations which meet SNC
criteria must resolve those violations before appearing on the
 2nd QNCR or the Region or approved State is expected to take
 formal enforcement, action,  where the violation is not resolved
and  formal enforcement action is not taken on a timely basis, the
 POTW should be listed on the Exceptions List until such time as
the violation is corrected or the POTW has been put on a schedule
 for correction through formal enforcement.

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 ZZ.   ZHTBOMCTXOM

      A.   Background

      EPA Region*  and NPOES Statas aust raport eartain parait
 violations on tha Quartarly Noncoaplianca Raport  (QNCR) which
 maat  critaria idantifiad  in tha axisting KPOES Regulations  (40
 CFR Part 123.45). Ona of  tha violations that aust ba raportad ia
 a POTW's failura  to  adaquataly iaplaaant its approvad
 pratraatmant program. Prior to saptaabar 1987, tha intarpratation
 of adaquata iaplaaantation was laft to tha discration of tha
 Ragions and approvad Statas.

      Zn Saptaabar 1987, tha Offica of Watar Enforcaaant and
 Parmits issuad "Guidanca  for Reporting and Evaluating POTW
 Noncomplianca with Pratraataant Zaplaaantation Raquiraaants*
 which providad a  dafinition of raportabla noncoaplianca (RNC) for
 POTW  pratraataant program iaplaaantation.  Thaaa  critaria vara to
 ba usad in dataraining whan a POTW should ba raportad on tha
 QNCR.  This guidanea astablishad critaria which covarad fiva
 basic araas of POTW  program iaplaaantation: ZU control
 machanisas; ZU impact ions; POTW anforcaaant; POTW raport ing to
 tha. Approval Authority; and othar POTW iaplaaantation
 raquiramants.

      Now,  basad on axparianca with tha usa of that dafinition in
 Fiscal Yaars 1988 and 1989, EPA has ravisad tha RNC critaria and
 has davalopad a naw  dafinition of significant noncoaplianca (SNC)
 for POTW's that hava failad to adaquataly iaplaaant thair
 approvad pratraataant programs.  Tha naw dafinition of RNC  will
 ba usad to datamina which POTWs should ba raportad on tha  QNCR
 for failura to iaplaaant  approvad pratraataant programs.  Tha
 dafinition of SNC is usad to idantify tha instancas of
 noncomplianca that ara subjact to formal anforcamant action, if
 not rasolvad on a tiaaly  and appropriata basis.

      Tha purposa  of  this  Guidanca is to axplain tha RNC/SNC
 critaria,  with axaaplas of how to apply tha critaria; dascriba
 how to raport noneoaplianca for POTW pratraataant program
 iaplaaantatiea on tha QNCR and astablish tiaaly and appropriata
 critaria for rasponsa to  significant noncoaplianca.  This
 Guidanca should b« usad as a basis for raport ing  POTW
 pratraataant noncoaplianca as raquirad in tha Agancy Oparating
 Guidanca and includad as  a parforaanca maasura for EPA  and
 approvad Stata programs undar tha Stratagic Planning and
Managaaant Systaa (SPMS).

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      ?.  Existing Rule

     The QNCR  is  the' basic mechanism for reporting violations of
NPDES permit requirements.  Major1 POTW permittees must be
reported on the QNCR:

    (1)  if they are under an enforcement order for previous
        permit violations; or

    (2)  if their  noncompliance meets specific criteria
        (Category I noncompliance); or              .    •   .

    (3)  if the regulatory agency believes the violation(s) causes
        problems  or is otherwise of concern  (Category II
        noncompliance).

The specific requirements of the existing rule which relate to
pretreataent program implementation are as follows:

     1.   Enforcement Orders - All POTW* that are under existing
          enforcement orders (e.g., administrative orders,
          judicial orders, or consent decrees) for violations of
          pretreatment implementation requirements  (except for
          orders  addressing schedule and reporting violations)
          must be listed on the QNCR and the compliance status
          must be reported on each subsequent QNCR until the POTW
          returns to full compliance with the implementation
          requirements.

     2.   Category Z pretreatment program noncompliance - A POTW
          must be reported on the QNCR:

       a)  if it violates any requirement of an enforcement order
          (except schedule or reporting requirements as noted
          below),  or

       b)  if it has failed to submit a pretreatment report  (e.g.,
          to submit Annual Report or to publish a list of
          significant violators) within 30 days from the due date
          specified in the permit or enforcement order, or

       c)  if it has failed to complete a pretreataent milestone
          within  90 days from the due date specified in the
          permit  or enforcement order.
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
minor POTW) with an approved  local pretreatment program should
have its pretreatment  violations reported on the QNCR.

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       3.v category II - X POTW must be reported on the QNCR if
          '-the  instance of noncoapliance 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 PQTW to implement it^
               approved pfooraa adequately [emphasis added],
               including failure to enforce industrial
               pretreatment requirements on industrial users as
               required by the approved program/ or

           c)   any other violation or group of violations which
               the Director or Regional Administrator considers
               to be of substantial concern.

      C.    Determination of Inadequate Program Implementation for
           QVC* Listing

      OWE? has  developed criteria to evaluate local program
 implementation that explain and clarify the existing regulations.
 As stated, these criteria highlight activities that control
 authorities must undertake to implement their programs.  These
 activities include:
     1)   POTW establishment of ZU control mechanii
     2)   POTW compliance monitoring and inspections
     3)   POTW enforcement of pretreatment standards and
          reporting requirements
     4)   POTW reporting to the Approval Authority, and
     5)   other POTW implementation requirements.

     Collectively, these criteria provide the framework for the
definition of reportable noncompliance which should be used by
EPA Regions and approved States to report POTW noncompliance with
pretreatment requirements on the QNCR.  These same criteria also
provide the basis for a definition of significant noncompliance
for pretreatment program implementation.  POTWs with pretreatment
violation* which meet the level of SNC must either resolve these
violations on a timely basis or the Region or approved State must
take formal enforcement action on a timely basis.  The attached
table. Table 1, identifies the individual violations which
constitute the criteria for reporting noncompliance 'on the QNCR,
as well as the criteria for SNC.
' The  permit is  the basis for enforcing* requirements off- the
approved program or the  Part  403 regulations.   It should at least
require compliance  with  40 CFR part 403 and the approved program
and ideally  it should provide more specific implementation
requirements when they are necessary to evaluate noncompliance.

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                             TABLB 1

     DBFZNZTZONS 07 UPORTABLB AMD ilOinPICAMT MOMCOMPLIAMC8
     A POTW Should be raportad on th« QMCB if the violation Of
its approved pretreatment program, its NPOES permit or the
General Pretreatment Regulations (40 CFR Part 403) meets any of
the following Level Z or Level ZZ criteria  for inadequate
implementation of its approved pretreatment program.   A POTW
should be considered to be in significant noneonplianea if it
meets any one of the following Level I criteria or two or more of
the Level ZZ criteria.  The POTW may also be identified as in
significant noncompliance if it meets any. am of the Level ZZ
criteria if that violation substantially impairs the ability of
the POTW to achieve program objectives.
     1)   Failed to take effective action against industrial
          users for instances of pass through and/ or interference
          as defined in 40 CFR Part 403.3 and required in section
          403.5, and as specified in the approved program or the
          NPOES permit.  Actions taken in response to discharges
          which result in pass through and/or interference that
          failed to eliminate the causal discharge within 90 days
          of identifying the responsible industry or failed to
          place the responsible industry on an enforceable
          schedule within 90 days of identification are not
          considered to be effective, unless otherwise defined in
          an approved enforcement response plan.

     2)   Failed to submit a pretreatment report (e.g., annual
          report or publication of significant violators) to the
          Approval Authority within 30 days of the due date
          specif ied in the NPOES permit, enforcement order, or
          approved program.

     3)   Filled to complete a pretreatment implementation
          compliance schedule milestone within 90 day* of the due
          date specified in the NPOES permit, enforcement order,
          or .approved program.
3The term enforcement order means an administrative order,
judicial order or consent decree.   (See 40 CFR 123.43)

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                        TABLE  1  (Continued)
 B.    Laval II
      1)    Failed  to  issue, reissue, or ratify  industrial user
           permits, or other enforceable control mechanisns, where
           required,  for at least 90% of the  "significant
           industrial users", within liO days after program
           approval  (or after permit expiration), or within  180
           days of the date required in the approved program,
           NFDES permit, or enforcement order.

      2)    Failed  to  conduct a complete inspection or  sampling of
           at least eighty percent of the  "significant industrial
           users"  as  required by the permit,  the approved program,
           or enforcement order.

      3)    Failed  to  enforce pretreatment  standards or reporting
           requirements — including self-monitoring requirements
           — as required by the approved  program, the HPDES
           permit, or the General Pretreatment  Regulations.
           Failed  to  take appropriate action  against a violation
           within  thirty (30) days of being notified of such
           violation.  Actions taken in response to incidents of
           significant noncompliance that  failed to return the SXU
           to compliance (or in compliance with an enforceable
           compliance schedule) within 90  days  of the  receipt of
           information establishing significant noncompliance are
           not considered effective unless otherwise defined in an
           approved program enforcement response plan.

      4)    Any other  violation or group of violations  of local
           program implementation requirements  based on the  HPDES
           permit, approved program or 40  CPU Part 403 which the
           Director or Regional Administrator considers to be of
           substantial concern.
* See SNC definition for industrial users, section 3.4.1 of the
PCKE.  EPA proposed to use that definition to identify
significant noncpmpiiers  for the  annual public notification
requirement (section 403..t(f) (2) (vii)).  Significant
noncompliance  (SNC) includes certain violations of pretreatment
standards, reporting, schedules and enforcement orders.by SZUs.

9 Existing QNCR criterion (40 CFR Part  123.43)?  the violation
  must be reported.                        .

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 III.   Applying tfta Criteria

      The criteria for reporting POTW noncomplianee with
 pretreataent  requirements are based on the General Pretreatment
 Regulations [particularly 403. 8 (f) (2) J, approved pretreataent
 programs, and NPDES permit conditions (particularly Part III) .
 Where specific conditions, deadlines, or procedures are specified
 in  the Regulations or the approved program, and incorporated or
 referenced in the HPDES permit, POTW performance should be
 evaluated against those requirements.  Any failure to meet those
 requirements  is a violation.  The  criteria included in this
 Guidance establish a basis for determining when a violation or
 series of violations should be reported on the QNCR for
 failure to implement a pretreatment program. Zf the POTW is
 identified as meeting one or more  of the criteria, the POTW
 should be reported on the QNCR.  If the POTW's violations meet
 the criteria  for significant noncomplianee, the violation- must be
 reported in the QNCR and it must be resolved or EPA or the
 approved State must take formal enforcement action to resolve the
 violation bafora the POTW appears  on the second QNCR.  This
 definition of "timely and appropriate* is the same as for the
 NPOES program.

      POTW performance should be evaluated using the information
 routinely obtained from pretreatment compliance inspections,
 annual reports, pretreatment audits and Discharge Monitoring
 Reports (DMRs) as veil as any special sources of information.
 All annu&l t&ports should . include  the compliance status of lUs, a
 summary of compliance and enforcement activities, and other
 information,  as required by Section 403. 12 (i) of the General
 Pretreatment  Regulations.  This information should be useful to
 assess the effectiveness of pretreataent implementation.
 Pretreatment  staff should review the approved program, the NPOES
permit, and any correspondence with the POTW regarding its
pretreatment  program to identify any specific procedures, levels
of performance, or milestones that may apply to implementation, of
the particular program.
A.   LevEi. i emiCTRiA  (a POTW is considered to be KVC aad f*C for
     aay  violation listed below)
X
          yai.lnye to Bnfofce Agai
          Interference

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                                8
      Definitions of industrial user discharges that  interfere
with  a  POTW or pass through  the treatment works were promulgated
January 14,  1987 (52 FR 1586).

      Protection against interference  and pass through are
 fundamental objectives of  implementing a local pretreatment
 program.  Interference generally involves the discharge of a
 pollutant(s)  which reduces the effectiveness of treatment such
 that  a  permit requirement  is violated.   (Zf the pollutant that
 causes  the violation is the  same  as the permit pollutant limit
 that  was exceeded,  pass through  has  occurred.) The  POTW is
 responsible for identifying  and controlling the discharge of
 pollutants from ZUs that may inhibit  or disrupt the  plant
 operations or the use and  disposal of sludge.  The POTW must
 monitor ZU contributions and establish local limits  to protect
 its sludge.

      The  POTW should have  written procedures to investigate;
control and eliminate interference and pass through. Whenever
 interference or pass through is identified, the POTW should apply
such  procedures to correct the problem.  The effectiveness of
POTW  actions against ZUs that cause interference  and pass through
is evaluated based on the  timeliness  of the POTW  response, the
degree  to which the problem  is abated, and the use of the maximum
enforcement authority required to resolve the problem.

      Whenever an industrial  source has been identified as a cause
of such violations,  the control authority must respond in a rapid
and aggressive manner to avoid continuing problems,  consistent
with  the  POTWs approved enforcement procedures.   Where there are
no approved procedures,  a  reasonable  expectation  would be that
the interference/pass through would be corrected  within 90 days
after the industrial source  has been  identified as causing the
interference or pas* through or that  an enforcement  order setting
an expeditions compliance  schedule  for corrective action would be
issued  within 90 days after  the source is identified.  Where the
SIU does  not comply with the schedule, the POTW would be expected
to make use of full enforcement authorities to secure compliance.

     Section 403.S of the  General Pretreatment Regulations
requires  that the POTW develop and enforce local  limits to
prevent interference, and pass through from industrial
contributors  to the treatment works.  If a POTW has  permit  limit
violations that are attributable  to industrial loadings to  its
plant,  it may also be a violation of  the requirement to enforce
local limits.   However,  interference  or pass through may reflect
the fact  that the approved program  includes  inadequate  local
limits.    Zf  such is the case the  POTW should be required to
modify  its approved pretreatment  program.              .

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      2.    Failure  to Submit Pretreatnent Reports Within 30 tjflvg

      This  criterion already exists under Category I of 40 CFR
 Part  123.45(a).  The tent "pretreatment report" should be inter-
 preted to  include  any report required by the Approval Authority
 from  the POTW  (including publication of significant violators/
 nonconpliers in the newspaper as required by Section
 403.8.(f) (2) (vii) of the General Pretreatment Regulations).  Where
 specific dates are established for these or other reports froa
 the POTW,  they may be tracked in PCS. when deadlines are missed,
 the POTW should be notified immediately because these reports
 contain information which is essential to determine compliance
 status.  When  the  due date is missed by 30 days or more, the POTW
 should be  reported on the QNCR as in noncompliance.  A POTW which
 meets this criterion would also be considered in significant
 noncompliance.                                                 •

      3.    Failure  to meet Compliance Schedule Milestones by 90
           Dava or  more

      This  criterion is also included in Category Z of 40 CFR
 Part  123.45(a).  Compliance schedules are frequently used to
 require construction of additional treatment, corrective action
 to correct inadequacies in implementation, Spill Prevention
 Contingency and Countermeasure plans, additional monitoring that
 may be needed  to attain compliance with the permit, and any other
 requirements,  especially the development or revision of local
 limits.  The schedules should divide the corrective action into
 major steps (milestones) that can be verified by inspection or
 review.  Most  schedules include progress reports.  EPA recommends
 that  the milestones be set at least every six months throughout
 the schedule.  The schedule* can be incorporated as part of the
 POTW'* NPDES permit if final compliance will not exceed the
 regulatory compliance deadline.  It the compliance schedule is
 to resolve a violation that has occurred after the regulatory
 compliance deadline, the schedule must be placed in an
 administrative order, judicial order, or a consent decree
 outside the NPDES  permit.

    The existing rule for QNCR reporting requires that all
permittees be  listed on the QNCR if they are under an enforcement
order.  If the permittee is in compliance with the order, the
 compliance status  is "resolved pending".  Zf the permittee has
missed a compliance schedule date by 90 days or more, the
permittee  must be  reported as noncompliant on the QNCR.  For POTW
pretreatment programs, a failure to begin corrective action,
 complete corrective action, or attain final compliance within 90
days  of the compliance deadline in an enforcement order  is
 considered SNC.

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                                10
a.   mrei. TT qmmtix (a POTW is considered ftvc for meeting aay
     criterion aad «C for meeting two or more of the criteria
     listed, except that a POTW may be identified aa meeting tvc
     if it meets any- oae of tha criteria listed below if the
     violation substantially impairs taa ability of taa POTW to
     achieve program objactions.)

     1.   Failure to Taaue Control Meehaniaaa to Significant
          Tnduagfial Uaara In a Tinaly Fashion

     Control mechanisms establish enforceable limits, nonitorins
conditions, and reporting requirements for the industrial user.
Zn some cases, an approved program may have a sewer use ordinance
that defines the limits (including local limits) and an
individual mechanism for establishing monitoring conditions- at
each facility.  Technically, if a control mechanism expires,
control of the SIU and enforcement of some pretreatment
requirements may be suspended.  Therefore, timely issuance and
renewal of all control mechanisms is essential.

    Ml Control Authorities must apply pretreatment standards to
their industrial users.  Where the approved program requires that
individual control mechanisms be developed for significant
industrial users, but does not include a timeframe for issuance,
the POTW should be given a deadline to issue them through an
enforcement order.  Soma States include schedules for issuing
specific SZU permits in a POTW*a NTOES permit.  Where the POTW
has missed one or more deadlines specified in a permit or
enforcement order for iaauing individual control mechanisms by 90
days or more, tha violation must ba reported on the QHCR aa a
schedule violation.
                                              i
     For failure to issue control mechanisms, where individual
control mechanisms are required by tha approved program or the
NPOES permit, the POTW should issue or reissue control mechanisms
to 90% of tha SItJs within six months following the required date
or, if there ia no required date, within six months after the
program ia approved.   Where initial issuance of individual
control mechanisms has occurred, POTWa should be expected to
reiaaue 90% of required control mechanisms within six months of
expiration.   POTWs that fail to meet these timeframea should be
reported on the QNCR.

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                                11


      Son*  POTWs  have  stated that delay in submission of an
application  by the  SZU  or delay in review by a State agency
causes unavoidable  delays in  issuance of control mechanisms.  The
POTW  should  establish a schedule for IU applications and any
other required preliminary steps which allows for the timely
review and issuance of  a control mechanism prior to its
expiration.

      2.    Failure to  Inanaet  or Sample Significant Industrial
      POTWs  are required to carry out all inspections,
surveillance, and monitoring procedures necessary to verify the
compliance  status of their industrial users independent of
information provided by the industrial user [40 CTR 403.8
(f)(2)(iv)].  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.
      f'
      The approved program and/or the NPDES permit may establish
other requirements  for inspections or use a different definition
of significant industrial user.  Zn those cases where the permit
or approved program identifies specific requirements for
inspection  or sampling, these requirements should be used as a
basis to evaluate POTW compliance.  If the POTW has failed to
either inspect or sample at least 80% of the significant
industrial  users as required by the permit or the approved
program, the POTW should be reported on the QNCR for its failure
to inspect.  POTW sampling of all lUs is essential to evaluate IU
compliance  where ZUs do not submit self-monitoring information.
In the absence of specific inspection coverage requirements in
the approved program or permit, the Approval Authority should
also  report any POTW which has not either inspected or sampled at
least 80% of all SZUs within a 12 month period.

      3.   Failure to Enforce Pretreatment Standards and Reporting
          RsQuirenents

          a.   IU Reporting and Self-Monitoring Requirements

      All categorical ZUs are required to report at least twice a
year  (40 CTR 403.12).  POTWs also have authority to require
monitoring  and reporting from non-categorical ZUs.  As a result,
most  POTWs  have-established self-monitoring requirements for SZUs
as a  means  of securing adequate data to assess SZU compliance at
less  cost to the POTW than if all data ware developed by the POTW
through sampling,   where an approved program does not require SZU
self-monitoring, the visits and inspections conducted by the POTW
must  be sufficient  in scope or frequency to assure compliance.
                                                                  /•/*.-.

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                                12
      In evaluating compliance with this criterion, EPA and
approved States should examine the requirements of the NPDES
permit and the approved pretreatment program and determine
whether the control Authority has established self-monitoring
requirements as required. XU self-monitoring requirements should
specify the location, frequency, and method of sampling the
wastewater; the procedure for analysis and calculation of the
result; -the pollutant limits; and the reporting requirements.
Under certain conditions, SXU violations may trigger additional
self-monitoring (See 403.12(g)).  For each violation the SXU
detects, it must notify the POTff and resample and submit both
sample results for review by the Control Authority.  These
self-monitoring requirements may be applied, in general, through
an  ordinance, through specific control mechanisms, or through a
combination of general and specific mechanisms.  Where
self-monitoring is used, it should be required frequently enough
so  that in combination with POTW monitoring, compliance of the
SXU can be accurately assessed.

      Where appropriate requirements have been established, the
Control Authority must ensure that SXUs comply with all aspects
of  the requirements and report in the manner required in the
control mechanism.  Where the Control Authority fails to
establish appropriate requirements or to adequately enforce
these requirements once established (i.e., POTW should respond in
writing to all SNC violations for XU self-monitor ing and
reporting), the 'Control Authority should be considered in
noncompliance and listed on the QMCR.                        .

          b.   POTW Enforcement and XU Significant Noncompliance

      The Control Authority must have the legal authority —
usually expressed through a sever use ordinance.— to require the
development of compliance schedules by lUs and to obtain remedies
for noncompliance, including injunctive relief and civil or
criminal penalties [40 CFR 403.8(f)(1)(iy) 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 non-compliance by
industrial users [403.9(b)(1)(iii)].  Further, procedures for
enforcement may be contained in the approved program, sever us*
ordinance* or NPDES permit.

    The. attorney's, statement and compliance monitoring sections
of the approved program, taken in combination with the NPOES
permit, may provide a comprehensive set of enforcement procedures

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                                13               '

       *•               '                      •   "  . '*
which  the POTW should  follow to ensure the compliance of
industrial users with  pretreataent standards.  Where such
procedures are inadequate, EPA strongly recommends that POTWs
develop written enforcement procedures which describe how, when,
and by whoa enforcement authorities are applied  (See section 3.3
of the PCME). In fact, amendments to the General Pretreataent
Regulations proposed on November 23, 1989  (40 CFR Parts 122 and
403) require POTWs to  develop such procedures.  These procedures
aust be approved by the Approval Authority.  (After the NPOES
permit is modified or  reissued to incorporate these regulatory
changes, these procedures become enforceable requirements of the
pretreatment prograa.)  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 pretreataent requirements.  Zn
evaluating performance, the Approval Authority should examine
both whether the POTW  is following its enforcement procedures,
where  there are such approved procedures, and whether the prograa
is effective in ensuring coapliance with pretreataent standards.
Regardless of whether  there are procedures, one of the indicators
the Approval Authority should use in evaluating effectiveness is
the level of compliance of SIUs with pretreataent standards.
where  the level of significant noncoapliance (SNC) of SIUs is 15%
or greater over a six  aonth period without formal POTW actions or
penalties where appropriate, there is a reasonable presuaption
that overall the Control Authority is not effectively enforcing
its program.  To overcome the presumption of ineffective
enforcement, the POTW  should be able to demonstrate aaxiaua use
of its enforcement authorities on a tiaefraae consistent with its
enforcement procedure* or, in the absence of written procedures,
with the tiaefraaes. included in this document.

     The Approval Authority should also review the nature and
timeliness of the actions taken by the POTW to obtain coapliance
froa individual SIUs.  As a general rule, EPA recommends that a
POTW respond initially to all violations with either foraal or
informal enforcement action within 30 days froa  the date the
violation is reported  or identified to the POTW.  Frequently, the
initial action will b« informal (e.g., telephone call, warning
letter, or meeting.)   Where informal action does not bring
compliance, the POTW should promptly escalate the level of
enforcement response.  As a general rule, escalation should occur
within 90 days of the  initial action, if compliance has not been
achieved,  where an SXU continues to violate, so that the pattern
of violations meets the criteria  for significant noncoapliance,
.the violation should be resolved within 90 days  of the receipt  of
information which established the SIU to be in SNC or the POTW
should issue an enforceable schedule for resolution of the
noncbapliance within that 90 days.

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                                14
      Under certain emergency situations— to protect public
 welfare and property  — the initial  response should be  immediate
 and  should include a formal  enforcement action.  The POTW should
 exercise any and all authority that is necessary to resolve
 instances of significant noncompliance or establish a schedule
 for  resolving them.

      The Control Authority should also use its authority to
 assess penalties against noncomplying industrial users to
 recapture the economic benefit of delaying compliance.   Penalties
 would be expected as part of the response to violations  of most
 compliance schedules and for violations which were related to
 interference and pass through at the  POTW.  EPA  uses a computer
 model "BEN" to estimate the  economic  benefit.  Economic  benefit
 results from delaying capital expenditures, one-time costs for
 construction/acquisition of  treatment facilities, and the avoided
 cost of operating and maintaining the treatment  works.   Control
 authorities should use procedures which consider economic benefit
 as part of their penalty assessment process.

      The Approval Authority  should review the Control Authority's
 overall actions carefully to determine whether it has routinely
 evaluated the violations and contacted the SIUs  in a timely
 manner,  escalating the response when  compliance  is not achieved.
 If this review reveals that  the Control Authority has often not
 followed its own procedures  or that the Control  Authority has not
 appropriately used its full  authorities to achieve compliance by
 its  SIUs,  the Control Authority should be judged to be in
 noncompliance.

      Where the Control Authority is judged to have followed its
 procedures in almost all cases,  but the level of significant
 noncompliance among SIUs is  15% or greater, the  adequacy of
 Control  Authority enforcement procedures should  be reviewed. Zf
 the  procedures are found to  be inadequate, the procedures should
 be modified.  The Approval Authority might require modification of
 the  approved program,  through the NPOES permit,  or might issue an
 administrative order requiring the adoption of new procedures
 along the lines of those included in  the FQfE Guidance.

      Even where the SIUs have a low level of significant non-
 compliance,  the Approval Authority should review the performance
 of the Control  Authority to  ensure that it is, in fact,
 implementing its .enforcement procedures and that the procedures
are adequate to obtain remedies for noncompliance.  Per example,
where  a  Control Authority fails to identify all  violations  or
 fails  to respond to  violation* when they do occur, the POTW
should normally be identified as in noncompliance on the QNCft.

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                                IS
      c..  Local  limits               '

      A  POTW  that has violations of  its NPDES permit limitations
 which arc attributed to interference or pass-through from non-
 domestic  contributions, should be reported on the QNCR  (40 CFR
 123.45  (a)).  Likewise, a POTW which fails to enforce its
 approved  local  limits should be included on the QNCR.  Just as
 for limits based on national categorical pretreatment standards,
 POTWs are expected to exercise the  full range of enforcement
 mechanisms available to ensure the  compliance of industrial users
 with approved local limits.  In assessing the effectiveness of
 enforcement  of  local limits, the same criteria should be applied
 as  for  enforcement of national pretreatment standards.

      4.    Any Other Violation(s) of Concern to the Approval
           Authority

      This criterion allows the Approval Authority to identify any
 POTW as in reportable nbncompliance for a single violation or any
 combination  of  violations which are judged to be important even
 though they may not be covered by the specific criteria in the
 definition.  These violations might include such violations as
 failure to update an industrial user inventory, failure to staff
 the  pretreatment program consistent with the approved program or
 NPOES permit, issuance of control mechanisms of inadequate
 quality,  or  failure to develop or analyze local limits as
 required  by  an  NPOES permit or enforcement order.

 IV.   Compliance Evaluation

     EPA  or the-approved State should-use annual (or more
 frequent)  reports, pretreatment compliance inspections, audits,
 any  follow-up reports, and DMRs to  evaluate the compliance status
 of the permittee.  At a minimum, data should be reviewed every
 six months to determine whether the POTW is in compliance.  The
 Approval  Authority should attempt to schedule audits and/or
 inspections and receipt of reports  to support this six month
 review.   Once the facility is shown on the QNCR, quarterly
 evaluations are needed to update the compliance status on each
QNCR.

     compliance with permit effluent limits, compliance
 schedules, and  reporting can be tracked in PCS, which is EPA*s
automated data  system.  The dates for submission and receipt of
periodic  reports and routine requirements should also be tracked
 in PCS.   WENOB  data elements already include the date of receipt
 of an annual report (or periodic report).  This tracking would
allow Regions and States to forecast when reports are expected
and detect reporting violations, similar to the process for
tracking  discharge monitoring reports and other scheduled events.

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                                16
     The Pretreatmfcnt Permits and Enforcement Tracking System,
(PPETS), has been developed, as a part of PCS, to track the
overall performance of POTWs with their pretreatment requirements
and the compliance rites of significant industrial users.  Most
of the data in PPETS will only be indicative of potential
violations. The apparent violation should be verified as a
continuing problem before the instance of noncompliance is
reported on the QNCR.  The data elements in PCS and PPETS that
may apply to raportable noncompliance are summarized for each
criterion in Table 2.

     once the POTW has been reported on the QNCR it should
continue to be reported each quarter until the instance of
noncomplianee is reported as resolved.  Compliance vith an
enforcement order (both judicial and administrative) should be
tracked on the QNCR from the date the order is issued until it is
met in full.  EPA and/or the approved State should verify the
compliance status of the POTW each quarter once it is listed on
the QNCR through periodic reports from the POTW, compliance '
inspections, audits, meetings, or by a 30t letter to the POTW for
compliance data and information on the status of the pretreatment
implementation violation.  .

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                              Table 2

        REPORTABLE NONCOMFLIANCE CRITERIA AND RELATED PPETS
                           DATA ELEMENTS
Criterion II-l
— Failure to Issue Control
   Mechanisms
Data Source

   PPETS -
Criterion II-2
— Failure to Inspect SIUs
   PPETS -
Criteria II-2
PCS
— Failure to Enforce
    Standards and Reporting Requirement*

                                PPETS  -
                                               Data
o  Number of SIUs
   without
   required
   mechanisms*

o  Control
   mechanism
   deficiencies

o  SIUs not
   inspected or
   sampled

o  Number of SIUs*

o  SIUs in SNC but
   not inspected
   or sampled

o  SIUs not
   inspected at
   required
   frequency

o  Inadequacy of
   POTW
   inspections

o  Violation
   suaaary
               o  Effluent data*

               o  SIUs in SNC*

               o  Adequacy of
                  POTM monitoring

               o  SIUs in SNC
                  with self-
                 , aonitoring*

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                               18
Criterion
Data Source
Data Element
Criterion I-l
— Failure to Enforce
   against Interference
   and Pass-through
PCS
                            PPCTS
o  Number of
   enforcement
   actions*

o  Existing local
   limits

o  Roadworks
   analysis

o  Deficiencies in
   POTW
   application
   of standards

o  Violation
   Summary

o  Effluent data*
                   o  SZUs in sue*

                   o  Number of
                      enforcement
                      actions*

                   o  Number of XUs
                                                  penalties

                                               o  Number of
                                                  significant
                                                  violators
                                                  published
                                                  in the
                                                  newspaper*

                                               o  Pass Through/
                                                  Interference
                                                  incidents

                                               o  Deficiencies in
                                                  POTW sampling

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                                19
Criterion
Data Source
Data Element
Criterion 1-2

— Failure to Submit        PCS
  Annual Reports
criterion 1-3

~ Failure to Meet          PCS
      Compliance Schedules
                                               o  Deficiencies in
                                                  POTW
                                                  application
                                                  of standards

                                               o  Enforcement
                                                  response
                                                  procedures
                   o  Reporting
                      schedule

                   o  Permit
                      reporting*
                   o  Compliance
                      schedule
                      events*
 * Water Enforcement National Data Base  (WENDB) data elements
   for which data entry is required, not optional.

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                                20
 V.   ••aartiHg on the QlfCH
      The Quarterly Noncomplianee Report  is prepared by NPDES
States  and EPA Regions  each  quarter.  Zt lists  violations of
Federally designated major KPOES permittees  that  are of concern
to the  Agency.  The format is described in Section 123.45(a) of
the KPOES Regulations.   For  each instance of noncoaplianca, the
report  oust show the date, basis and type of the  violation, the
date  and type of action the  agency has taken, and the current
compliance status.  The agency should also explain mitigating
circumstances or remedial actions which  the  permittee may have
planned.  Detailed guidance  for preparing the QNCR is available
upon  request to the Regions  or OWE?.  The following discussion
summarizes the basic requirements for reporting POTW pretreatment
violations.                                         .

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

      A.    Format

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

     The description of the  permittee should include the name of
the permit holder, the  name  of the municipality,  and the KPOES
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. Similar./,  industrial
users that contribute to the violation should be  listed  under
comments.

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                             '..  ,21  -      - •  --••.    -:.:—

      Vfc   Description of the Moncompliance '   •   ..

      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:

                                            QNCR (section 123.45)
           of violation
   Reoulation
 1)  Failure to implement or enforce
    industrial pretreatment requirements          (a)(iii)(B)
       (Criteria 1-1 and II-l,  -2, and -3)

 2)  Pretreatment Report - 30 days overdue         (a)(ii)CD)
       (Criterion 1-2)

 3)  Compliance schedule - 90 days overdue         (a)(iii)to
       (Criterion 1-3)

 4)  Other violation or  violations of
    concern (Criterion  II-4)                       (a)(iii)(C)


     The criterion should be listed under  the type of violation
 as  the example (Section VI)  shows.

     Each  violation should include the date.  If  the pom 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.  Zn some cases, the Agency may
 have discovered the violation  through an audit or inspection  of
 the POTW program.   The inspection/audit date should be noted
 under comments.   Zn the examples, all dates on the QNCR  are
 written  in six digit numbers representing  the month, day, and
 year.  The date,  January 9,  1987 is entered as 010987 for the PCS
 generated  QNCR.

     The violation  date of some  implementation requirements may
be the date the program was approved.   Where the  POTW has taken
no action  to  implement a requirement,  since approval of the
program, this beginning date would be appropriate.  Zn other
cases, the POTW may have been  issued  a specific deadline.  These
deadlines  may be established through  a permit or  a compliance
order.  For example, some programs require annual inspections of

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                                22

      *»•              '                    '
 all  SXtJs  ait  a  condition  of the NPOES permit but do not establish
 specific  timeframes.   In tha  absence of a particular compliance
 date, the specific  deadline should be assumed to be one year
 after the effective date of the NPOES permit.  Thus, the  initial
 date of the  violation  is one  year after the effective date of the
 permit.

      The  Region or  approved State should contact the POTW
 promptly  vhen  a pretreatment  implementation violation is
 detected.  The Region/State should also indicate the action taken
 in response  to the  POTW's failure to implement an approved
 program on the QNCR.   In determining the appropriate response,
 the  Region/State should  consider  the impact of the violation,
 POTW compliance history,  the  number of SZUs, and the nature
 and/or duration of  the violation.  Initial violations may be
 resolved  through training, conferences, or on-site reviews. The
 Regional/State response  should be timely and escalate to  formal
 enforcement  (an administrative order or judicial referral) if the
 POTW fails or  is unable  to comply in a timely fashion,  rha date
 the  action was taken should also  be indicated.  Planned actions
 by the POTW  or its  ZUs and projected dates should be noted under
 comments.

      c.    compliance Status

      The  QNCR  also  tracks the status of each instance of
 reportable noncompliance.  Three  status codes are usually
 reported:  noncompliance (NC), resolved pending  (RP), and
 resolved  (RE)..   "Noncompliance" means the violation or pattern
 of -violations  is continuing.  "Resolved pending" means the
 permittee is making acceptable progress according to an
 enforceable  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 date of the report period.  The status
 date for  "resolved" is either the date the noncompliance
 requirement  is fulfilled or the last day of the  report period  in
 which the permittee no longer meets the QNCR criteria.

     The  "comments" column can be used to describe the violation,
 explain permittee progress, indicate potential remedies,  project
dates of compliance, and explain  agency responses.  Other
 information  can-also be  reported  under comments, including the
name of noncbmplying SZUs; the level of performance or degree
of failure by  the POTW;  the names of other permittees that are
covered by the Control Authority; agency plans for training  or
technical  assistance;  and the manner in which the agency learned
of the violation.

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                     ;  ".. -      23     .       .'.."'•

    •».."•"        •'         '            •  '  •   '•
 VI.   gyanmla of Reporting on the  OUCH

      The following example illustrates how violations and Agency
 responses are reported.   This is  a moderate-sized POTW that has
 refused to implement the program.

 Scenario:  Hometown's pretreatment program was approved in June
 1965.  The permit required an annual report,  fifteen days after
 the  end of each year, beginning January  IS,  1986.  The program
 required that permits be issued to 15 SIUs by June 30, 1986.  The
 POTW was audited in August 1986 and had  failed to permit and
 inspect its XUs and failed to submit an  annual report.  Hometown
 meets the criteria for SVC.—  -        '

                             QMCB
                  Hometown WWTP,  Hometown, US  00007


INSTANCE OF                REG
COMPLIANCE
NONCOHPLIANCE_/_OATE   SUBPARA  ACTION (AGENCY/DATE)
STATUS_DATE

Issue permits
(Criterion II-l)   063086   (iii) (B)   AO 1123    (State/033187)
RP  (033187)

Inspect SIUs •
(Criterion II-2)   083086   (iii) (B)   AO 1123    (State/033187)
RP  (033187)

Submit Annual                       Phone call (State/013087)
Report            -011587   (ii) (C>    AO 1123    (State/033187)
RP   (033187)
(Criteria 1-2)      ,
COMMENTS

AO requires submission of annual report by 4/30/87,  and permit
issuance and sampling inspections  of all SIUs by 6/30/87.   EPA
Audit 8/30/86 identified  violations of permit inspection
requirements Control Authority includes two other permittees:
Suburb One, Permit No. US 00008  and Suburb Two,  Permit No.  US
00009 who must meet the schedule for inspections.

Discussion:  The  entry on the QNCR for Hometown shows the  name
and permit number of the  facility.   The Control Authority  also
covers two other  permittees.   Three reportable noncompliance
criteria were exceeded (see sections I .and. ZX of this guidance).

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                                24
 The annual report was due January 15,  1987,  according to the
 NPDES permit for Hometown.  Th« approved program was the basis
 for th« other reported violations.  Th« "reg subpara" identifies
 the section of the axisting QNCR which covers the violations.
 The state has called the city which promised to submit the annual
 report.  After discussion with the city and  its outlying
 jurisdictions, an administrative order was issued with a
 compliance schedule to resolve all three violations.  Hometown is
 following an enforceable schedule that will  lead to compliance,
 so its compliance status is shown as "resolved pending" "RP" for
 all three violations.  The comments indicate the compliance
 deadlines.

 VII. Reaaonae to POTW Significant Moneomplianee for Failure to
      Inelegant Approved Pretreatment Programs

      This Guidance establishes criteria for  determining when a
 POTW's failure to implement pretreatment program requirements
 meets the level of significant noncompliance.  In all instances
 where the violation is judged to be SNC, the violation must be
 addressed on a "timely and appropriate" basis.  The definition
 for "timely and appropriate* for pretreatment implementation will
 be the same as for NPDES violations.  That is, the violation must
 be resolved or EPA or the approved State must take formal
 enforcement action to resolve the violation  before the POTW
 appears on the second QNCR. In th« rare circumstances where
 formal enforcement is net taken and the violation not resolved,
.the administering agency must prepare a written record to justify
 why no ercion or the alternate action warn more appropriate. ,
 where "timely and appropriate* enforcement action is not taken,
 the POTW wili be listed on the Exceptions List and will b«
 tracked until such time as the violation is  fully resolved.  Each
 justification for the Exceptions List will be evaluated
 individually to determine whether the failure to take action was
 justified.   The justification should make clear the reason for
 not taking action and discuss such factors as the nature of the
 implementation requirement schedule, tne expe.-r:..*'. late of
 compliance,  and the alternative process that wi*. oe usec to
 resolve ther violation.

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                                                                 VLB. 34.
***     "Application and Use of the Regulatory Definition of
        Significant Noncompliance for Industrial Users", dated
        September 9,1991.

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                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               WASHINGTON, D.C. 20460


                     •  ''^ '               SEP   9  1991

             .                                                         OfFBEOF
                                                                       WATEH
MEMORANDUM                       .       .

SUBJECT:  Application and Use of the Regulatory Definition of
             Significant Noncompliance for Industrial Users

FROM:     Michael B. Cook, Directo/,// //>^\/}// T*\ /st^R.
             _-_    - _,         _ I/1 '  It'V'WL'V- \ ),L/V/I^-
             Office of Wastewater Enforcement ana Compliance

TO:         Water Management Division Directors, Regions I-X                  .
             Approved  Pretreatment State Coordinators

Background;

       On July 24,  1990, the Agency replaced the definition of "significant violation" with
the definition of "significant noncompliance" (SN.Q [see 40 CFR 403.8(f)(2)(vii) and 55
Fed. Reg. 30082].  This  change eliminated the inconsistencies which arose in applying the
significant violation  criteria and established more parity in tracking violations committed by
industrial users.  The definition of SNC parallels the Pretreatment Compliance Monitoring
and Enforcement Guidance (PCME) definition of SNC published in  1986.

       This memorandum responds to several questions from States, publicly owned
treatment works (POTWs), and industry regarding the application of the SNC definition.
One frequently asked question is whether the time frame for determining SNC for technical
review criteria effluent violations is a static six month  period (Le., a fixed six month
calendar interval) or a rolling six month time frame (i.e., the current day minus six
months). POTWs and industry have also inquired whether all data must be used to
calculate SNC.  The following discussion is provided to promote consistency in the
application of this definition. Regions, States and POTWs should determine SNC  in the
manner prescribed below.

     Pretreatment POTWs are required to notify the public of significant industrial users
which meet the definition of SNC through publication  in the newspaper.  Ths POTW
should also use the  SNC criteria as the basis  for reporting an industrial user's compliance
status to the Approval Authority in its Pretreatment Performance Report. According to 40
CFR 403.12(i)(2), the POTW must report on the compliance status of its industrial
user universe at the frequency specified by the State or EPA National Pollution
Discharge Elimination System  (NPDES) permit, but in  no case less than once per
year. Finally, the definition of SNC is  used to determine whether a formal enforcement
action against a user is warranted in accordance with the POTW's Enforcement Response
Plan (ERP).                                                   .

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                                          2

 Applying the Definition!  Use of the Six Month Time Frame;
                         * •
       There are seven criteria set forth in §403.8(f)(2)(vii).  Two of these criteria concern
 violations evaluated over 3 six month time frame.  The Agency intends for Control
 Authorities to evaluate these criteria on a rolling basis.  The EPA's long established
 practice in the NPDES program is to evaluate SNC for direct dischargers  each quarter
 using data from the previous six months.  Similarly, Control Authorities should determine
 SNC for their universe of industrial users on ,the same rolling quarters basis using fixed
 quarters established by the Control Authority to correspond to its "pretreatment year" (e.g.,
 March 31, June  30, September. 30 and  December 31).

       At the end of each quarter, POTWs and States are to evaluate their industrial user's
 compliance status using the two criteria of the SNC definition which are evaluated on a six
 month time frame (i.e., the "A" and "B" criteria under the regulatory definition).  Under
 this system, each industrial user is evaluated for SNC  four times during the year, and the
 total evaluation period covers  15 months (i.e., beginning with the last quarter of the
 previous pretreatment year through the  end of the current year). When the POTW is
 required to publish,, it must list in the newspaper all industrial users which have  been
 identified as SNC during the previous year (i.e., the SNC criteria were met during any of
 the previous four quarters).

       If a facility has been determined to be in SNC based  solely on violations which
 occurred in the first quarter of the 15 month evaluation period  (Le., the last quarter of the
 previous pretreatment year) and the  facility has demonstrated consistent compliance in the
 subsequent four quarters, then  the POTW is not required to republish the Industrial User
 (IU) in the newspaper if the IU was published in the previous year for the same violations.
Use of Industrial User and POTW Data in Determining SNC:

       Several POTWs have inquired whether all data, including Control Authority
sampling and industrial user self-monitoring, must be used in determining SNC  This
question arises from the concern that an industrial user may choose to conduct its sampling
efforts at times in which it knows that it is in compliance (e.g., during early morning start-
up or during periods in which the industrial process is down).  The concern is that use of
these unrepresentative data will allow the industry to craft its compliance status such that it
will never be in SNC

      The regulation defining SNC clearly requires that all measurements taken in the
appropriate six month period must be used to determine a facility's SNC status.  Therefore,
any and all samples obtained through appropriate sampling techniques which have been
analyzed in accordance with the procedures established in 40 CFR Pan  136 must be used
to determine whether the facility is in SNC.

      The General Pretreatment Regulations further state that periodic compliance reports
must be based on data obtained through appropriate sampling and analysis, and the data
must be representative of conditions occurring during the reporting period [403.8(f)(l)(iv)

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 and 403.12(g)(3)].  The Control Authority must require that frequency and scope of
 industrial user self-monitoring necessary to assess and assure compliance by industrial users
 with applicable pretreatment standards and requirements.
                    . ;'  V            .                   •
       The nature and scope of the sampling undertaken by an industrial user is under the
 control of the Control Authority through the issuance of an industrial user  permit.  These
 permits should specify the sampling locations and sample collection method necessary to
 ensure that representative samples are obtained for all regulated waste streams. By
 requirii.g' industrial users to obtain representative samples, the Control Authority will ensure
 that industrial users do not evade noncompliance through selective sampling of their
 industrial processes.                ,
 Conclusion:

       The Control Authority is required to screen all compliance data, whether generated
 through industrial user self-monitoring or by the Control Authority, to identify any
 violations of pretreatment requirements.  Whenever there is a violation, the Control  .
 Authority must take appropriate enforcement action, as defined in its  ERP.  After this
 initial enforcement response, the Control Authority should closely track the industrial user's
 progress toward compliance by increasing  the frequency of user self-monitoring, increasing
 the POTW's monitoring, or both.              .

       When follow-up activity indicates that the violations persist or that satisfactory
 progress toward compliance is not being made,  the Control Authority is required to escalate
 its enforcement response in accordance with  the procedures established in its ERP.  At a
.minimum EPA expects POTWs to address SNC with an enforceable order that
 requires a return to compliance by a  specific deadline.   When this enforceable  order
 involves a compliance schedule, the industrial user remains in SNC during the period of
 the schedule (unless the facility returns to compliance prior to the end of the schedule). For
 example, if the duration of the  schedule is two  years, the facility should be  published in
 both years.  Of course, the POTW should explain in its publication that the  violations have
 been addressed with a formal enforcement action (similar to a "resolved pending" listing on
 the Quarterly Noncompliance Report).
                               i
       The definition of SNC provides a benchmark against which the compliance  status of
 an industrial user and die enforcement activities of POTWs can be measured.  The concept
 of significant noncompliance plays a pivotal  role in the implementation and  enforcement of
 the National Pretreatment Program. In order for the definition  to succeed, it is critical  that
 each Control Authority apply it on a consistent  basis.  If you have any further questions on
 this issue, please feel free to call me at  (202) 260-5850. The staff person familiar with
 these issues is Lee Okster at (202) 260-8329.

 cc:    Cynthia Dougherty
       Regional  Water Compliance Branch Chiefs
       Regional  Pretreatment Coordinators
       Lead Regional Pretreatment Attorneys

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                                                  VLB. 35,
"Determining Industrial User Compliance Using Split Samples",
January 21, 1992.

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                    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                  WASHINGTON, D.C.  20460
                                     JAN 2 I  1992

                                                                       OFFICE OF WATER

 MEMORANDUM                                          •'   ,

 SUBJECT:  Determining Industrial User Compliance Using Split Samples
    •            t'
 FROM:     Richard G. Kozlowski, Director
             Enforcement Division

 TO:         Mary Jo M. Aiello, Acting Chief
             Bureau of Pretreatment and Residuals

       This memo is a response to your letter of September 30,1991, where you requested
 written clarification regarding the use of split samples for determining industrial user (IU)
 compliance under the Pretreatment Program. Specifically, you requested guidance on, how to
 use the data from split samples for determining IU compliance in situations where-split
 samples yield different analytical results.  The fundamental question posed by your inquiry is
 whether all analytical results must be used when evaluating the compliance status of lUs and
 how to use those results for determining compliance.  In situations where split samples exist
 and both samples were properly preserved and analyzed, POTWs should evaluate compliance
 with applicable Pretreatment Standards in the manner described below.

       When evaluating the 'compliance status of an industrial user, the POTW must use all
 samples which were obtained through appropriate sampling techniques and analyzed in
 accordance with the procedures established in 40 CFR Part 1361. The Environmental
 Protection Agency (EPA) has consistently encouraged Publicly Owned Treatment Works
 (POTWs) to periodically split samples with  industrial users as a method of verifying the
 quality of the monitoring data.  When a POTW splits a sample with an IU. the POTW must
 use the results from each of the split samples.              >..''•'

       A legitimate question arises, however, when a properly collected, preserved and
 analyzed split sample produces two different analytical results (e.g., one which indicates
 compliance and the other shows noncompliance, or where both indicate either compliance or
 noncompliance but the "fggnimdes are substantially different).  In these i"$t*nrfs. questions
 arise regarding the compliance status of the  IU, and what should be done to reconcile the
results.
   1   See Memorandum. "Application and Use of me Regulatory Definition of Significant Noncompliance for
       Industrial Users," U.S. EPA, September 9,1991.
                                                                           Prim* on AM?*** P«PW

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       There is inherent variation in all analytical measurements, and no two measurements
of the same analyte (even when drawn from the same sample) will produce identical results.
When a split sample is analyzed using appropriate methods, there is no technical basis for
choosing one sample result over the other for determining the compliance status of a facility.
Since this is the case for all split samples which have been properly analyzed, the POTW
should average the results from the split and use the resulting average number when
determining the compliance status of an IU. Using the average of the two sample results
avoids the untenable situation of demonstrating compliance and noncpmpliance from the same
sample.                       .                  •

       If the split sample produces widely divergent results or results which are different over
a long period of time, then the cause of the discrepancy between the analytical results should
be reconciled. When this happens, the POTW should investigate Quality Assurance and
Quality Control (QA/QC) procedures at each laboratory involved. For example, the POTW
could submit a spiked sample (i.e.,  a sample of known concentration) to the laboratories
involved (preferably blind)-to determine which laboratory may be in error.

       In situations where one or both of the analytical results is determined to be invalid,
there are compliance and enforcement consequences.  If one of the analytical results is
determined to be invalid, the average value for that sample is also invalid.  In this situation,
the value for this sample should be the value of the  sample which was not determined to be
invalid (e.g., if the TU's results are determined to be invalid, the POTW* should use its sample
for assessing compliance, and vice versa). If both samples are determined to be invalid, the
averaged result from that sample should be discarded and not used for compliance assessment
purposes. In either case, the POTW must recalculate the compliance status of the IU using
all remaining valid sample results.                       - •
                             '        *           *               •                   *
     .  in summary, whenever split samples are taken and both are properly preserved anu *.
analyzed, the POTW should average the results from each sample and use the averaged value
for determining compliance and appropriate enforcement responses. Where the sample results
are widely divergent, the POTW should instigate QA/QC measures at each of the analytical
laboratories to determine the cause of the discrepancy. If one or both of me samples are
invalid, the POTW must recalculate the compliance status of the IU using all valid results.

       If you have any further questions regarding these questions; please feel free to call me
at (202) 260-8304. The staff person familiar with these issues is Lee Okster. Lee can be
reached at (202) 260-8329.

cc:  ..  Cynthia Dougherty
       Regional Pretreatment Coordinators                     .
       Approved State Pretreatment Coordinators  •
       BUI Telliard

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                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON, D.C. 20460
                                   APR i 2 1993
                                                                   OFFICE OF
                                                                    WATER
Mr. Harold R. Otis                        '
Chairman, Split Sampling Task Force
Greater Fort Wayne Chamber of Commerce
826 Ewing Street
Fort Wayne, IN 46802-2182

Re:  Using.Split Samples to Determine Industrial User Compliance

Dear Mr. Otis:

      In response to your letter of January 12,1993, and your phone conversation of
February 9,1993, with Lee Okster, I am providing a further discussion of the issues
surrounding the use of split samples to determine industrial user (IU) .compliance with
Pretreatment Standards.  In your letter and your phone conversation, you requested
clarification from the Environmental Protection Agency (EPA) on three issues. First,
you requested a firm  definition of what constitutes "widely divergent results" when
comparing split sample results.  Second, when a publicly owned  treatment works
(POTW) splits a sample with an IU, you inquired whether a POTW must use the
industrial user's data  to determine compliance with pretreatment standards. • Finally, you
requested written authorization from the EPA to incorporate the language from our
existing guidance memorandum on split samples into the Rules and Regulations of the
Water Control Utility for the City of Fort Wayne.        .
What are Widefy Divergent Results?

      As you are aware, the EPA issued a memorandum on January 21,1992, entitled
"Determining Industrial User Compliance Using Split Samples." The "widely divergent
results" criterion established in this memo is to be used as an indication that a problem
exists with the laboratory analysis. We did not include an indication of what constitutes
"widely divergent" in our memorandum because the amount of "normal" analytical
variability depends on the pollutant parameter being tested and the method being used
to analyze the sample.  With appropriate QA/QC, this "normal" analytical variability is
small.  In general, though, metals analyses  have a smaller variation than organics
analyses, but the magnitude of the variability depends on the pollutants being tested.
Therefore, no hard and fast rules exist for  determining what is widely divergent. This
determination is left to  the discretion of the local authority.
                                                                      Printed on Recycled Paper

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Must the POIW Use AU Sample Results?

      In the January, 1992, memorandum we state that "the POTW must use all samples
which were obtained through appropriate sampling techniques and analyzed in
accordance with the procedures established in 40 OFR Pan 136."  The memo further
states "[w]hen a POTW splits a sample with an IU; the POTW must use the results from
each of the split samples."

      The POTW is required  to sample the IU at least once per year to determine,
independent of information supplied by the IU, the compliance status of that facility. If
the POTW does not wish to be in a position of comparing its own data with the IU when
it samples the IlFs discharge, it is not required to split its samples with the IU.
Furthermore, we do not recommend that the POTW use a split sample with the industry
to satisfy its annual sampling requirement  The POTW should pull its own sample so
that it has data which are truly independent of the ILPs results.

      The POTW also has the primary responsibility to ensure compliance by the IU
with all applicable pretreatment standards and requirements. One way the POTW can
satisfy its requirement to ensure compliance is to split a routine sample taken by the IU.
If a POTW splits a routine sample taken by the IU, it must use the RTs data, in
conjunction with its own, to determine the compliance status of the facility (assuming all
of the data are sampled and analyzed appropriately). We encourage POTWs to split
samples in this manner to verity the IT-Ps data. In a similar fashion, if the POTW
chooses to split its own sample with the IU, it must use all of the  data to determine the
compliance status of the facility (assuming all of the data are appropriately analyzed).

      When the POTW splits  a sample with an IU (whether it is a routine sample by
the IU or an annual sample by the POTW) the POTW has the responsibility to
determine whether the RTs results from the split sample are valid. Where an UPs
results are different than the POTWs, the burden is on the IU to show that all
preservation, chain-of-custody,  and analytical and QA/QC methods were followed. If the
IU cannot make this showing, then the analytical results from the IU .should be discarded
when determining the compliance status of the facility.  If the IU  establishes that it
followed all appropriate procedures, then the POTW should review its own QA/QC
program.  If both the IU and POTW have followed appropriate procedures, and there is
still a wide divergence, then follow-up sampling should be conducted. If follow-up
sampling consistently shows IU noncompliance, or if the POTW is otherwise satisfied
with the validity of its own results, it should proceed to follow its enforcement
procedures.                                                      .

Authorization From the EPA            .                -

      In regard to your final request, the City of Fort Wayne has the authority to
incorporate these procedures into its  Rules and Regulations without  any authorization
from the EPA.  As long as the City has the minimum legal authorities to implement its


                                      -2-

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approved program, it has satisfied its requirements under the Federal regulations.  As
always, the City is encouraged to adopt :the EPA's Pretreatment Guidance whenever
possible..                     -               .     -- __                 	

      I hope this letter responds to your questions and concerns.  If you have any
further questions, please feel free to call me at (202) _260-8304 or you can call Lee at
(202)260-8329.

                                            Sincerely yours,
                                             lichard G. KozlowsEi, Director
                                            Water Enforcement Division
                                            U.S. Environmental Protection Agency
cc:    Cynthia Dougherty
      Regional Pretreatment Coordinators
      Approved State Pretreatment Coordinators
                                       • 3 -

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                                                  VLB.36
"The Use of Grab Samples to Detect Violations of Pretreatment
Standards", October 1, 1992. l

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, O.C. 20460
                   ~              ;
              _.'•         OCT " I 1992
MEMORANDUM                                              OFFICE OP
—:	                     '   ,-                      WATER

SUBJECT:  The Use of Grab Samples to Detect Violations of
          Pretreatment Standards

FROM:     Michael B.  Cook,  Directc
          Office  of Wastewater EnfdrbgtiSAt"* ccottpTiance (WH-546)
          Frederick F.  Stiehl
          Enforcement Counsel for Water (LE-134W)

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

     The primary purpose of this Memorandum is to provide
guidance on the propriety of  using single grab samples for
periodic compliance monitoring to determine whether a violation
of Pretreatment Standards has occurred.   More specifically,  the
Memorandum identifies those circumstances when single grab
results may be used by Control Authorities,  including EPA, State
or publicly owned treatment works (POTW)  personnel,  to determine
or verify an industrial user's compliance with categorical
standards and local limits.   Please be aware that the concepts
set out below are applicable  when drafting self-monitoring
requirements for industrial user permits.


REGULATORY BACKGROUND

     The General Pretreatment Regulations require Control
Authorities to sample all significant industrial users (SIUs)  at
least once per year [see 40 CFR 403.8(f)(2)(v)].   in addition,
the Regulations, at 40  CFR 403.12(e),  (g)  and (h)  require, at a
minimum, that all SIUs  self-monitor and  report on their
compliance status for .each pollutant regulated by a  Pretreatment,
Standard at least twice per year unless  the  Control  Authority
chooses to conduct  all  monitoring in lieu of self-monitoring by
its industrial users.
         The POTW  should -conduct  more  frequent sampling  and/ or
require more  frequent self -monitor ing by an  industrial user if
deemed necessary to assess the industry's compliance status 
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                               -  2  -

     The Regulations,  at  40  CFR  403.12(g)  and (h),  also specify
that pollutant  sampling and  analysis  be  performed using the
procedures set  forth  in 40 CFR Part 136.   Part 136  identifies the
proper laboratory procedures to  be used  in analyzing  industrial
wastewater (including the volume of wastewater necessary to
perform the tests and proper techniques  to preserve the sample's
integrity).  However,  with certain'exceptions.  Part 136 does  not
specifically designate the method  to  be  used  in obtaining samples
of the wastewater.  Rather,  section 403.12(g)  and (h) require
sampling to be  "appropriate" to  obtain "representative" data;
that is, data which represent  the  nature and  character  of the
discharge.


DISCUSSION OF BASIC SAMPLING TYPES

     Sampling may be  conducted in  two basic ways. 'Both types of
sampling provide valid, useful information about the processes
and pollutants  in the  wastewater being sampled.  The first is an
"individual grab sample."  An  analysis of  an  individual grab
sample provides a measurement  of pollutant concentrations in  the
wastewater at a particular point in time.   For  example,  a single
grab sample might be used for  a  batch discharge which only occurs
for a brief period (e.g., an hour  or  less).   Such samples are
typically collected manually but are  sometimes  obtained using a
mechanical sampler.

     The second type of sample is  a "composite  sample."
Composite samples are  best conceptualized  as  a  series of grab
samples which, taken together, measure the quality of the
wastewater over a specified  period of time (e.g., an operating
dayj.. Monitoring data may be  composited on either a. flow  or  time
basisi  A flow-proportional  composite is collected after the
passage of a defined volume  of the discharge  (e.g.,  once every
2,000 gallons).  Alternatively,  a  flow-proportional composite may
be obtained by adjusting the size  of  the aliquots to correspond
to the size of the flow.  A  time-proportional composite  is
collected after the passage  of a defined period of time  (e.g.,
once every two hours).           ,

     Generally, composite samples  are collected using a
mechanical sampler, but may  also be obtained through a series of
manual grab samples taken at intervals which correspond to the
wastewater flow or time of the facility's  operations.   In some
cases, composite data  is obtained  by  combining grab samples prior
        Mechanical samplers may not be used to sample for certain
pollutants (e.g., thosti which could adhere to the sampler tubing,
volatilize in the sampler, or pollutants with short holding times).

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                               -3  -

 to  transinittal  to a  laboratory.  At other tiroes,  the samples
 remain discrete and  are either combined by the laboratory prior
 to  testing or are analyzed separately (and3mathematically
 averaged  to derive a daily maximum value).


 DETERMINING APPROPRIATE COMPLIANCE SAMPLING METHODS

    EPA policy  on appropriate compliance sampling types  has been
 articulated in  several  pretreatment guidance manuals and
 regulatory preambles, and  continues to  be as follows:

 A.  Compliance  with  Categorical Standards

      •  Most effluent limits  established by -categorical .standards
      are  imposed on  a maximum daily-average and a monthly-average
      bases.   Generally,  wastewater samples taken  to  determine
      compliance with these limits  should be collected using
      composite  methods.

        There are exceptions  to the general rule.  Composite
      samples are inappropriate for certain characteristic
      pollutants (i.e.,  pH  and temperature) since  the composite
      alters  the characteristic being measured.  Therefore,
      analysis of these  pollutants  should be based on individual
    .  grab  samples.   Alternatively,  continuous monitoring devices
      may be  used for measuring compliance with pH and temperature
      limits.  Any exceedance  recorded by a continuous monitoring
      device  is  a violation of the  standard.

        Sampling wastewater from electroplating facilities
      regulated  under 40  CFR Part 413 may be conducted using
      single  grab samples [(assuming  that the grab samples are
    •representative  of the daily discharge for a .particular
      facility);  see  also preamble discussion at 44 Fed. Red.
      52609,  September 7, 1979]

      •  A  series  of  grab samples may be needed to obtain
      appropriate  composite data for  some parameters due to the
      nature  of  the pollutant  being sampled.  Examples of this
      situation  include:
       .Daily maximum discharge limits are controls on the average
wastewater strength over the cou::se of the operating day.  They are
not intended to be instantaneous limits applied at any single point
during that operating day.

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                               -  4  -

                    \
      -     Sampling  for parameters  which may be altered in
           concentration by  compositing  or storage.   These
           pollutants  include  pH-sensitive compounds (i.e.,  total
           phenols,  ammonia, cyanides, sulfides);  and volatile
           organics  such as  purgeable halocarbons,  purgeable
           aromatics,  acrolein, and acrylonitrile.
                                   !
   -   -     Sampling  for pollutants  with  short holding times- such
           as  hexavalent chromium and residual chlorine;-and

           Sampling  for pollutants  which may adhere to  the sample
           container or tubing such as fats,  oil and grease.
           Individual  analysis for  these parameters ensures  that
           all the material  in the  sample is. accounted  for.


.B.   Compliance With Local Limits                 •

         Local limits  may be established on an instantaneous,
      daily, weekly  or monthly-average basis.   The  sample type
      used to  determine compliance  with  local limits should  be
      linked to the  duration of the pollutant limit  being applied.

           Compliance  with instantaneous limits should  be
           established using individual  grab samples.   Exceedances
           identified  by composite  sampling are also violations.

           Compliance  with daily, weekly or monthly  average
           limits should be  determined using composited sampling.
           data, with  the same exceptions noted in A, above.

           Measurements of wastewater strength for non-
           pretreatment purposes  (e.g.,  surcharging)  may be
           conducted in a manner  prescribed by the  POTW.


GRAB SAMPLING AS A  SUBSTITUTE FOR  COMPOSITE SAMPLING

      EPA is aware that a number  of Control Authorities  currently
rely on  a single grab sample  to  determine compliance,
particularly  at small industrial users,  as a way of holding down
monitoring costs.   It is EPA's experience that the  process
activities and wastewater treatment at  many industrial  facilities
may  not  be sufficiently steady-state as to allow for routine  use
          Certain  pH-sensitive  compounds  can  be  automatically
composited  without losses if the collected sample  is only to be
analyzed  for  a single parameter.  Additionally, a series of grab
samples may be manually composited if appropriate procedures are
followed.'                             .            •

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                               • 5 •

 of  single  grab results  as a substitute for composite results.
 Therefore,  the Agency expects composited data to be used in most
 cases.  However,  there  are several circumstances when a single
 grab sample may be  properly substituted for a single composite
 sample.  These situations are:

           Sampling  a  batch or other similar short term discharge,.
           the  duration  of which only allows for  a single grab
           sample  to be  taken;

           Sampling  a  facility where a statistical relationship
           can  be  established from previous grab  and composite
           monitoring  data obtained over the same long-term period
           of time;  and                                     •

           Where the industrial  user,  in its self-monitoring
           report, certifies  that the individual  grab  sample is
           representative  of its daily operation.

 Except for these  circumstances,  Control  Authorities should
 continue to use composite methods for their compliance sampling.


 GRAB SAMPLES AS A COMPLIANCE SCREENING TOOL

     Control Authorities  may consider using grab  samples as a
 compliance  screening  tool  once  a  body of composite  data  (e.g.,
 Control Authority and self-monitoring samples obtained over a
 year's time),  shows consistent  compliance.   However, in the event
 single grab samples suggest noncompliance,  the Control Authority
         Grab sampling may  provide results  that are  similar to
composite sampling.  See  for  example,  a March 2,  1989, Office of
Water Regulations  and Standards  (OWRS)  Memorandum to  Region IX
describing the results of a statistical analysis of sampling data
from a single industrial  facility.   These sampling data included
both  individual  grab  and flow-proportional,  composite sampling
obtained during  different,  non-overlapping time periods.   After
reviewing the data,  OWRS concluded  that the  composite and grab
sample data sets  displayed similar patterns of violation for lead,
copper,  and total metals.  In fact,  the analyses did not find any
statistically significant difference  in the  concentration values
measured between the. grab and  composited  data.    Furthermore,
additional statistical tests  of the two data sets  indicated that
the means  and variances  for  .each pollutant  were  similar.   The
statistical conclusion was that the plant was judged to be-out of
ccr.pliance regardless of what data were analyzed.   .       .    .

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                               - 6 '-
 and/or the•industrial user should resample using composite
 techniques on the industrial users effluent until consistent
 compliance is again demonstrated.

      Control Authorities may also rely on single grab samples,  or
 a series of grab samples for identifying and tracking slug
 loads/spills since these "single event" violations are not tied
 to a discharger's performance over, time.           .

      Any time an SIU's sample (either grab.or composite)  shows
 noncompliance,  the General Pretreatment Regulations,  at 40 CFR
 403.12(g)(2),"require that the SIU notify the Control Authority
 within twenty four (24)  hours of becoming aware of the violation
 and resample within 30 days.   Furthermore,  EPA encourages Control
 Authorities to conduct or require more intensive sampling in
 order to thoroughly document the extent of the violation(s). Of
 course,  the use of grab samples should be reconsidered in the
 event the SIU changes its process or treatment.


 SUMMARY

      The collection and analysis of sampling data is  the-
 foundation of EPA1s compliance and enforcement programs.   In
 order for these programs to be successful, wastewater samples
 must be properly collected,  preserved and analyzed.   Although the
 Federal standards and self-monitoring requirements are
 independently enforceable,  Control Authorities should specify,  in
 individual control mechanisms for industrial users-, the sampling
 collection techniques to be used by the industry.   Generally,
.pretreatment sampling should be conducted using composite methods
 wherever possible,  to determine compliance with daily-,  weekly or.
 monthly average limits since-this sampling technique  most closely
 reflects the average quality of the wastewater as it  is
 discharged to the publicly owned treatment works.   Grab samples
 should be  used to determine  compliance with instantaneous
 limits..  There are circumstances when discrete grab samples  are
 also  an appropriate,  cost effective means of screening compliance
 with  daily,  weekly and monthly pretreatment  standards.
        Where grab samples are used as a screening tool only (i.e.,
consistent compliance has been demonstrated by composite data), the
results should not be used in the POTW's calculation of significant
noncompliance  (SNC).


     7  When POTWs choose to allow the SIU to collect single grab
samples,  the  POTW   should ' draft  the  SIU's  individual  control
mechanism to clearly indicate that grab samples are to-be oatained
thereby preventing  any uncertainty at a later date.

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     In summary, there are limited situations in which single
grab sample data may be used in lieu of composite data.  Assuming
adequate quality control measures are observed, analyses of these
grab samples can indicate noncompliance with Federal/ State and
Local Pretreatment Standards and can form the basis of a
successful enforcement action.  Grab sampling can also be useful
in quantifying batches, spills, and slug loads which may have an
impact on the publicly owned treatment works, its receiving
stream and sludge quality.                    _         .

     Should you have any further comments or questions regarding
this matter, please have your staff contact Mark Charles of OWEC
at (202) 260-8319, or David Hindin of OE at (202) 260-8547.


cc:  Frank M. Covington,  NEIC
     Thomas Q'Farrell,  OST
     Regional and State Pretreatment Coordinators
     Lead Regional Pretreatment Attorneys,  Regions I - X
     Approved POTW,Pretreatment Programs

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VI. C.

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VI. SPECIALIZED ENFORCEMENT TOPICS
    C. SECTION 311

-------
                                                                     VI.C.l,
"Oil Spill Enforcement", dated January 8, 1974.  Outdated.

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?£7 V-   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C.  20460

                             .  JAN  8   1374
                                                          .
                                                   EWOR53WENT AMD GtKEHAL CCUNScL
  TO;        Regional Enforcement Directors
            &2rveiliance .and Analysis Directors
            Regional Oil and Hazardous  Materials. Coordinator*

  ZSCW,:      Assistant Administrator for Znicfcenent and
            Counsel

  SUoJSCTr .  Oil Spill Esforceicsnt
       Attached  Is  a status  report of EPA DLL  and Hazardous Materials
  spill enforcssent actions  covering the  period January i to October 1,
  1973.  It  shows a great  ijnprovement over last'year's  record,  '
  although scse  Regions  should apparently be r.ore active.   Some Regions
  vith-few'actions  reported  cay- be relying on  s-crong  Coast Guard-'enforce—
  sent  programs. .'•  -All  Segions should send ce the Coast Guard  records
  that'would indicate the  nuaber of enforcement actions taken, and the
  results, to date.   This may present a more conplete  picture of the
  status of  spill enforcement activities.

       1 realize that lack of nangower and resources  may result in the
  inability,  to.follow up oil spill referrals,  particularly in light of
  tile present 'priority being rightly accorded  to pemit issuance  and
  folicv-up.. What'is needed,  I believe,  is a  core efficient use  of
  those Enforcement and  Surveillance and  Analysis personnel already
  working en, cil spill prcblsrrs.   It is particularly  important  that
  Surveillance' and  Analysis  personnel work closely with Enforcesant
  staffs-to  maximize tha nunber of investigations that  can be cc=?lsted
  and cases  that can' be  prepared,  in addition  to the  vital job  of oil
  spill clean-up.   Wherever  reported spills -cannot be investigated by
  the Znvir=rJr.intal Pro tact ion Agency or  the U.  3.  Ccast Guard, a *
  Section 303 information .requ-sst should  ba sent to-ths dischargar.
  Rs-gional A-±r.inistratcr3  ware delegated  the authority  to  acxinis-tar
 •Section. 303 in the Fart  125—N7DSS regulations,  prcmilgitsd May 22,.
  1*973  (33 Federal  Register  13531) .   You  should  also  encourage  Stats
  *
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      Sone Regions have already been successfully using Section 303
 letters in their oil enforcement prograr.3.  For these who have not,
 a suggested'format is attached which should be helpful, which was  ''
 prepared by Henry Statir.a.  Regional ccisnacts en this forzat should
 be forwarded to Rick Johnson, with a copy to Henry Statioa.   •   .

      The following guidalir.es should apply when a Section.308
.letter is sent to a discharger:

          1.  Section 303 letters should be used when a violator
 reports a spill which EPA.is unable'to-investigate on scene.

          2, • Section JOS letters may also be used occasionally to
 sapplenent.EPA or State investigations.'         .  •    ....••..-•  .  • . .'.

          3.  Section 303 information requests should not be utilized
 to investigate situations which may culminate in criminal prosecution.

         • 4. ' Section 308 letters must be posted by "Registered Mail •
 — Batum Receipt Requested."            .    .  •   •  '   •'•'...-

          5. • Sach Region cust carefully maintain a log.indicating
 for' each letter the date nailed, the date received and the date a
 respo.nse is due.             .             •            •     •

         • 6.  When a Section 308 letter is used, the Enforcement
 Division should plan to exercise.Section 309 sanctions if the
• violator fails-to respond or if the response contains false state-
 ments — the falsity, of which can be established.

          7.  If the complete information submitted in response to the
 letter indicates that a violation did occur, that evidence should be
 referred to the Coast Guard as basis for a Section 311(b)(6) civil
 penalty.       .                                  .           .

      A copy of the discharger's response should be automatically
 sent to the Emergency Response Branch in your Region.

      To improve oil spill anfsrcsnent procedures "within Rsgior.s,  and
 to share successful Regional techniques among Regional staffs, we are
 planning -a meeting for a representative of each Oil Enforcement staff
 and thsir counterpart in the 2=2rgency Response Branch on February 20
 and "2.1, .1973,  in Atlanta, to bs conducted in cooperation with tha Oil
 and Hazardous Materials Division.  Any suggestions for possible topics

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 to be included  in the  agenda should be  sent  to  Patricia 0'Cornell,
 Headquarters.   This  will be a working laval  neeting which will  focus
 on legal and invastigativa.prcbiscs.  Coast  Guard  and Justice Daoart-
 cant participation is  planned. We  also plan to discuss tha naw
 spill pravention regulations,-and thsir i==le=entatisn.
Enclosures

cc: •• CGC Chroa
     -    Reading

     Rich Johnson
     Henry Statina
     Patricia 'Cicsanell
     Assistant Administrator for Air 5 Water Programs

SSJohnson:dwk:12/23/73

-------

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n« rj ffJ M. .
1 000
II 217
I T.I GOJ
IV 102
V 210
VI 499
VII 151
VIII 477
IX
X 10
Total. . 3314
on..

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.71 S
.Oi
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01 Jj
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. MATERIALS
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-------
 Jraft  letter  fqr  Regional Administrators  signature
 Gentlemen:

     'The Environmental Protection Agency has received a report
'that your company was involved in the discharge of a harmful
 quantity of oil, estimated to be     gallons into v/atsrs .of the
 United States, to-wit:  (nane of waterway)  near  (city),  (state)
 on or about   (time, date)  frcs a   '(truck, pipeline or facility)
 which you own  (or operate). •

     The 1972 Amendments to the Federal Water Pollution Control
 Act (hereinafter, the "Act") prohibits* the discharge of oil or
 a hazardous substance into or upon the waters of the United States
 in harmful quantities [33 U.S.C. 1321(b)(3)].  Any owner or
 operator of a ves.sel or facility from which oil or a hazardous
 substance is discharaed shall  be assessed a civil penalty by
 the Coast Guard of not more than $5,000 [33 U.S.C. 1321(b)T&)].  .
 The definition of harmful quantities of oil appears in Title 40,
 Code of Federal Regulations, Section 110.3.

     In order for this Agency to carry out its responsibilities
 under the Act, you are required under authority of Section 303
 of the Act (33 U.S.C. §1318) to submit a--letter of explanation.
 •including the specific information liste-d in Attachment A..

     The letter of explanation must be submitted to:  tEnforce,-
raent Director, Region address) within fourteen. (14) days of
 receipt of this letter.   It must be signed by a duly authorized
 official of the corporation or company.  The information sub-
mitted will  be considered in evaluating whether the oil spill
violated Section 311.  (Please note that your reply in no way  •
constitutes  immediate notification of a spill to the appropriate
federal  agency, as required by Section 311(b)(5).)  Section-309
of the Act (33 U..S.C. 51319) provides civil and criminal  penalties
for failure to submit information required under Section 308  .  •
and criminal  penalties for knowingly making a false statement
in any submission under Section 308.

     If you have any questions please contact (name), Attorney
Legal Branch", Enforcement Division, at (phone number).

                                  Sincerely yours,

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                                                                    VI.C.2,
"Civil Penalties Collected for Violations of 40 C.F.R. Part 112" -
Transmittal to USCG Districts of Deposit in Revolving Fund Account, dated
December 24, 1974. Outdated.

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                .
 - ''  ' UNITED STATES ENVIRONMENT AL PROTECTION AGENCY
                       WASHINGTON, C.' C.  20-100
HE."CRA.'IDUM

To:       Regional Enforcement Directors

From:     Director, Enforcement Division

Subject;  Civil Penalties Collected  for Violations  of 40 C~R Part 112
          Transrnittai  to USCG Districts for  Deposit in .'.evolving Tune
          Account
     Civil penalties collect %d f?r violations  of  the  subsections of
section 211 and regulations issued pursuant  to section  311 of th-2 F.-/PCA
are being deposited in the revolving  fund  established by section 311(k)
of the FWPCA which reads as follows:

          "fk) There is hereby authorized  to' be appropriated to
     a revolving fund to be established  in the Treasury net to
     exceed 535,000,000 to carry out  the provisions of  subsections
     (c), (d), (i), and' (1) of this section.   Any other funds
    'received by the United States under this  section shall also '
     be deposited in said fund for such purposes.  All  rruns appro-
     priated to, or deposited in, said fund  shall remain available
     until expended.

     In compliance with the foregoing, civil penalties  collected for
violations of EPA's Oil Pollution Prevention Regulations,  40 CFR Part  112,
are to be .forwarded, by the EPA regional offices, to  che r.ain office of
the U.S.  Coast Guard District within  which the violation occurred,  for
inclusion in the Coast Guard's revolving fund  account established pursuant
to section 311(k)  of the FWPCA.  The  following procedures  should be followed:

          (1)   Checks in payment of the civil  penalty should be made
     payable to the "United States of America."   Check." nacie payable
     to "EPA," "Treasurer of the U.S.," etc. arc  accopcabl? so icr.g
     as the amount of the check is the sane as the civil  .-;-jnaicy.
     Do not endorse any such checks.

          (2)  , The checks should be forwarded  to  the  iJ.S.  Coast Guard
     District with a cover letter setting cut  the following:

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           (a)  Legal  name  and  aiidress  of owner/operator
     charged with  the violation.
           (b)  Daf.c and  nature »'C  viol.jtion,  iivjl -i-l i nti a
     citation of  the  relevant  statutory and rey.j 1.1 t;ory
     provisions.   (i.e., failure ':o  have SPCC Plan in
     violation of  40  CTR Part  112.3).
           (c)  EPA Regional  Office Enforcement fill* number.
           (cl)  Date of check,  name of  ix;nk, jmoun- of check.
           (o)  A  statement chit the  check is  bein<; corv/rirdcd
     for deposit  in the  U.S. Coast Guard's revolving fund, and

     (3)  At times the SPA Part 112  violation will have as its
genesis facts establishing other law violations. •whera the Part 112
'violation resulted from  facts  establishing another Federal law vio-
lation, including  but not  limited  to the FWPCA's section 311
•provisions relating to oil spills  or failure  tu notify, identi-
fication data on  the  other Federal law violation,  for the purpose
of avoiding possible  conflicts, should be included in "he transmictai
to the
  .'   (4)  Where  the  violation,  for which the check was submitted,
is also the basis  for  a  referral  to a  U.~S.  Attorney, the U.S.
Attorney should  be informed  of  the disposition of the £?A civil
penalty proceeding.
                                    J.  3rian Molioy

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                                                     Attachment A
                              UniTED STATES            '
                     ENVIRONMENTAL  PROTECTION AGENCY
             Report of Oil  or Hazardous  Material  Discharge

  The following information is submitted concerning, a discharge of
  oil or hazardous material:
  1.   Time and date of discharge.
  2.   Location of discharge,  including:
      a.  name of municipality and  state;
  • .   b,  name and-address  of industry or  commercial, establishment
          at which the discharge occurred,  if applicable;
   > c.." distance from receiving waterway.
 .3.  'Type of material  discharged.
 "4.   Quantity .discharged.                              '      •
                                                 •
  5.'   Quantity of material  which eventually  reached  the" receiving
      waterway, and date and  time-it was discovered.
 . 6.   Type of vessel  or facility (ship,  bargs,  storage tank,  tank
  ....   truck,  etc.) in which the oil  was  originally contained.
-  7.  'Describe in detail  what actually caused the discharge.
 . 8..   Name and address of owner of  facility  causing the discharge.
  9.'' Kane.and address.of operator  of facility  causing the discharge.
        • "    '      .       .             . •
 10,   Describe damage to the  environment.
 IT.   Describe steps  the above named owner  or operator took, to
.•• , .  clean up the spilled  oil  and  dates; and  times steps were taken.
 12.  -Actions by company to mitigate damage  to  the environment.
 13..  Measures taken  by your  company to  prevent future spills.

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                                   i»


 .14   List  the  federal and stata agencies, if any, to which-th-

      ornier or  operator named in 8 and 9 above reported this d?s-

      ofth!'   •?•!? ^ agency> its lo«tion> the date and tine
      of the notification, and the. official, contacted.         .



 15*   hlftVS9  n~;9Suand ^^esses of persons you beliefs have
      knowledge of the facts  surrounding this incident.


 15.   Name and address of person  completing  this..report.


 17.  Your relationship,  if any,  to  Gv^.er or  operator.



18*  n*Sr0?ther inforsia«on  which you 'wish to  bring  to the  attention
     OT tHA.   For exanple, number employed by  the firm.




 The  above  answers are true  to the best  of my  knowledge and beliaf.
                                  Signature or person completing
                                  this report.
Date of-Signature;

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                                                                    VI.C.3
"Spill Prevention Control and Counter-measure  (SPCC)  Plan Program",  dated
April 23, 1975. Outdated.

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.
 ,     '"    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      '                      WASHINGTON. •; C.  20
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..ature and Car.iiuct  cC  Civil rsnalty H'.-.-.vrit:-.:::.

     It is important chat sverycne connected with the civil
penalty hearings  provided for in 40 C.F.?..  Part 114 under-
stand that these  hearings are to be informal.  They can
be held in an  office cr conference room with the crisualn^ss
of a routine meeting.   No formal record is  necessary,  i-'c
undue attention need be given to the materiality or relevance
of statements .or  evidence offered by participants.   The
rules of evidence employed in courtrccns and formal hearings
are not appropriate for Part 114 civil penalty hearings.  i!o
cress examination is required.   The time and resources of
?.egional attorneys  involved with these hearings should be
kept to a minimum..

     It should be noted that the Presiding  Officer at a civil
penalty hearing can raise as well as lower  a arescsad civil
penalty.

Selection of Hearing Officers

     Section 114.5  of  the civil penalty regulations jravide-s
that the Presiding  Officer may  be any attorney in EPA who ha."
no prior connection with the case.  To maintain an atmosphere
of fairness and impartiality^,  Regional Administrators should not
appoint Enforcement Division Directors or ether Enforcement
Division supervisory personnel.   Similarly,  it is desiraijie to
avoid appointing  water enforcement attorneys.  Because cf tho
informality of the  hearing and  the relatively sir.ple rasjrcnribiliti'
of the Presiding  Officer,  Agency Administrative lav Judges should
not be asked to conduct these hearings.   The most desira;:!-:
candidates for Presiding  Officers are attorneys in the i-'ecicr.al
Counsel's Office.   Also acceutaole,  although with some J.CSL- of
the appearance of impartiality,  are Enforcement Division attorneys
working in non-water programs  such as air and pesticides.

Criteria fcr Civil  Penalty Levels

     The desirability  of  establishing national criteria frr 'j-ufci-.-n
assessment of civil penalties was discussed  at t!-c  San ••'rn::ci;">-.-?
meeting,  but no conclusion was  reached.   We  have dcciur-.! -:o :".-cm •
Headquarters-regional  work group to determine whether :jucr. ciritsrla
would be desiriible  and,  if so,  to set up a matri:: cr sai-e
system for uniform'  civil  penalty assessment.

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 Jurisdiction  Cver Locui,  State, sr.d jTodwivil "icilitics

      Doubt  as to whether federal, state, or local facii.i-t.ics
 are  subject to S?CC requirements has been raised because  the
 definition  of "person"  in section--311 dees not explicitly
 include  federal,, state,  and local entities.  Our interpretation
 of section  311 and the  S?CC regulations is that local', scats,
 and  federal entities are  subject to SPCC plan preparation
 and  implementation requirements.  A General Counsel's legal
 memorandum  10 this effect will be distributed shortly.

 Inclusion of  Animal and  Vscotable Gils in Section 211 Lnfir.i'ilon
 o£ ".Oil"

     Attached are four  letters discussing the inclusion cr
 animal and  vegetable oils in the section 311 definition of
 "oil."   SPA and the U.S.  Coast Guard have always treated
 spills of -non-L-etroleun based oils as subject to the civil
penalty  and cleanup provisions of section 311.   However,  CMC
Maticnai Sroiler Council  and similar organizations have questioned
 this interpretation,  and,  as a result, many users of animal
 and vegetable  oils are not in car.piijr.ee with the SPCC regulations
and have not  submitted requests fcr extensions  of time for
compliance.   In his January 9, 1975, letter Alan >;irk r?sdi: clear
SPA's position that r.cn-eetroleun oils .are included in tlic
section  311 definition of "oil" and that animal and veyecibi-:
oil users are  subject to  the SPCC plan preparation and i:nnlc:::f.::ita-
tion requirements  of Part 112.

     You will  note in Mr.  Kirk's January 9 letter and !'.icJ-: jc:;r.so:i'5
February 3  letter that, in view of the good faith efforts of che
animal and  vegetable  oil  users to deterr.ir.e whether their facilities
are subject to the SPCC regulations, we will consider requests fir
extensions  of  time for compliance received from users of. ncn-oetroleum
basud oils.   Such.requests should be approved in cases where
the requestor  can demonstrate his reasonable belief that lie
was not  subject to the 'SPCC program and his firra connitmenc
to comply fully with  SPCC requirements:.  Civil  penalties for
failure  to  request nxtensions of time,-in accord/nice v/it.i U-c
 timetable set  out in  ?nrt 112, should not be ir.ipoi-ocl i:i those
situations.   Part 112 vili i;c amended to clarify 'that. t;;c
Regional- Adr.inistrator:; have the -authority ?:c 'grant such
extensions  for appropriate reasons in audition  to those liste-;1
in 1112. 3 (f} .   Any cjrar.t  of additional ti;;'.e should-provide for

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                                                                   VI.C.4,
"Penalty Assessment Procedures under Section 311(j)(2)", dated March 29,
1976.  Outdated.

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        '    UNITED STAIES ENVIRONMENTAL PROTECTION AGENCY
K*"'"*^^                    WASHINGTON, D.C.  20460
 'ft .	—tj,

                                 o n MAP 1'i/->
                                 (j o IvIAK U/ 0


                                                           OFFICE OF ENFORCEMENT

      MEMORANDUM

      SUBJECT:   Penalty Assessment Procedures  Under Section 311 (j) (2)

      FROM:      Assistant Administrator for Enforcement

      TO:        Regional Enforcement Directors
           On December 2, 1975,  the Associate General  Counsel  for Water
      informed me of the case,  United States  v.  Independent  Bulk  Transport,
      Inc., 394 F. Supp. 1319,  8 ERC 1202,  {S.D.N.Y. May 29, 1975),  in
      which Judge Frankel found that the requirement in section 311(b)(6)
      that penalties be assessed only after "notice and opportunity  for a
      hearing" was violated because both in the  hearing and  in the appeal
      to the Commandant "matters not disclosed to defendant  became part
      of the Agency's case record and basis for  decision."

           Similarly, penalty assessment procedures under section 311 (j) (2)
      for violation of SPCC regulations (40. CFR  Part 112) must also  provide
      "notice and. an opportunity for a hearing."  Thus,  the  ruling in
      Independent Bulk Transport is applicable to section 311(j)(2)  pro-
      ceedings.  In order to assure that this situation does not  recur,
      the following procedures must be followed:

           "1.  Before the hearing, the defendant must be given copies
      of all materials which have been or will be submitted  to the Presiding
      Officer.  If the materials are too voluminous to make  this  practicable,
      the defendant or his attorney must be notified of an opportunity  to
      review all such materials and make copies  at their expense. The
      materials or the opportunity to review and copy  them must be provided
      in sufficient time before the hearing to allow the 'defendant a
      reasonable opportunity to review and  prepare to  refute them.

           "2.  At no time may there be any ex parte communication con-
      cerning the case between the Presiding Officer and any EPA employee
      or agent engaged in the performance of investigation or  prosecuting
      functions."

          .If you have any other suggestions  to  improve this procedure,
      please let me.know.  Thank you for your assistance and cooperation
      in this matter.
                                         Stanley

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                                                                  VI.G.5.
"Memorandum of Understanding Between the U.S. Coast Guard and the EPA",
dated August 24, 1979.  Outdated.

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                    DEPARTMENT  OF TRANSPORTATION
                   UNITED STATES COAST GUARD
MAILING ADDRESS:
U.S. COAST GUARD (G-LMI/81)
WASHINGTON. D.C. 20590
PHONE: (202) 426-1527
                                                          16460

                                                          8 4
  Mr. Marvin B. Burning
  Assistant Administrator for                       .
   Environmental Protection Agency               .     '-•"
  401 M Street, S.W.
  Washington, D.C. 20460

  Dear Mr. Owning:

  I am signing the Memorandum of Understanding concerning the Assessment of Civil
  Penalties for Discharges of Oil and Hazardous Substances Under Section 311  of the
  Clean Water  Act with  the  understanding that the Coast Guard  and EPA have
  agreed that either agency may terminate this agreement 90 days after having given
  notice to the other agency of its intent to so terminate.

                                       Sincerely,
                                 Wcs Admiral, U. S. Coast CM.*~
  LIMIT \
  55
Iff a Uw w*
can llv» with.

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         a.  any indication of misconduct or lack of reasonable care on the part of
the owner, operator, or person in charge with respect to the discharge or with
respect to the failure on the part of  the owner, operator, or person in charge to
adhere to the guidance of the OSC regarding clean-up or any policies, procedures,
guidelines, or regulations applicable to clean-up;

         b.   any discharge incident other  than a threat for which payments are
made or to  be made from the  section 311(k) fund pursuant to  33 CFR section
153.407, except where no discharger has been identified;

         c.  any indication of prior violations by the discharger of any provision of
the CWA, or violations of provisions of the CWA other .than section 311(b)(6) CWA
occurring at the time of the discharge, such as violations of a sectiori"402 permit;

         d.   any discharge  incident (other than a threat) as defined  in  40 CFR
section 1510.5  (1)  which requires activation (by full  or limited  assembly,  or by
telephone) of  the Regional  Response  Team as required by  40 CFR section
1510.34(d), as amended; and

         e.  any discharge involving human injury or evacuation, damage to plant or
animal life, or contamination of water supply or underground aquifers.

Other referrals to the EPA may be made on a discretionary basis.
Assistant Administrator for    {date}^.—-Acting Commandant,      " •—^ (date)
   Enforcement,                cT~     *  United States Coast Guard
United States Environmental
   Protection Agency

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                                  SECTION 1
                                  GENERAL
         The amendment of 2  November 1978  to section 311 CWA  (Public Law
95-576) excluded certain discharges of hazardous substances  from the application
of section 311(b)(6) CWA.   The discharges so excluded are:  (a)  discharges in
compliance  with  a section 402  CWA  permit,  (b)  discharges  resulting  from
circumstances identified and reviewed and made a part of the public record with
respect to a permit issued or modified under section 402 CWA,  and  subject to a
condition in such permit, and (c) continuous or anticipated intermittent discharges
from a point source, identified in a permit or permit application under section 402
CWA, which are caused by events occurring within the scope  of relevant operating
or treatment systems.

      .   In  addition,  this   amendment  created  two  methods  for penalizing
discharges of hazardous substances.  The first,  which already • existed as section
311(b)(6)  CWA prior to the  amendment,  authorizes the USCG to assess  a civil
penalty not  to  exceed $5,000 for the discharge  of oil or a designated hazardous
substance (section  3U(b)(6)(A)).    The  second  method,  created  by  the new
amendment, provides  that  the  EPA,  through the Department of Justice, may
initiate a civil action in Federal district court for penalties not to exceed $50,000
per spill of hazardous substance, unless  such discharge is the result  of  willful
negligence or  willful  misconduct,  in which  case  the penalty  shall not  exceed
$250,000 (section 3U(b)(6)(B)).

         The legislative  history accompanying the amendment  makes clear that
Congress  intended  to  create a  dual option  system for penalizing discharges of
hazardous substances under section 311(b)(6)  CWA.  A discharger of a designated
hazardous substance can be penalized under paragraph (A) or paragraph (B), but not
both.   The EPA  and the HSCfi agree that paragraph (B) does  not  apply to1>n
discharges.    The nscn  will  continue  to  assess oil  discharge   penalties
administratively under paragraph (A).
                                 SECTION H
                               COORDINATION
         When a spill of a designated hazardous substance  occurs, the On Scene
Coordinator (OSC) will prepare a factual report of the incident. At the minimum,
the report will address those criteria set forth in section III, of this memorandum.

         The OSC  will submit this report within 60 days of the spill incident.  The
OSC will submit the report to the District Commander when he is a USCG OSC,
and to the Regional Administrator, when he is an EPA OSC.

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         When the  District Commander  reviews the  USCG  OSC's report  and
determines  that  one or more  of the criteria set forth in section  HI,  below is
applicable to that case, the entire record of that case will be referred to the EPA
Regional Administrator for review.  In addition the District Commander will refer
the entire record of:

         (a) any other case involving a discharge of a designated hazardous
         substance from a point source subject to a section 402 permit or permit
        .application, which, prior to or after the commencement of penalty action,
         the USCG determines  is excluded from the application of section 311(b)(6)
         CWA; and

         (b)  any other case which,  the District Commander considers Appropriate
         for possible application of section 311(b)(6)(B) CWA.

         When  the Regional Administrator receives  a case,  either from  an EPA
OSC or upon referral from the District Commander, he will determine:

         (a)  whether the case is excluded from the application of section 311(b)(6)
         CWA, and, if not,     "              :;

         (b)  whether a civil penalty action under section 311(b)(6)(B) CWA will be
         initiated.              •         -.

The  Regional  Administrator will make these determinations within 90 days of his
receipt of referral documents and will notify the District Commander promptly of
the  determinations  in  cases  which  liave  been  referred.    If the  Regional
Administrator determines that an  action  under  section  311(b)(6)(B) CWA will be
initiated,  the  case will be prepared in the EPA Regional Office and  forwarded to
the Department of Justice (DOJ) in  accordance with established EPA case referral
procedures.

         If  the Regional Administrator determines  that the  discharge is  not
excluded from the application of  section  311(b)(6)  CWA  and that paragraph (B)
action is inappropriate, or if EPA Headquarters declines  to refer a Regional case,
EPA will return the case to the USCG for appropriate action under paragraph (A). •

         Upon  request, each Agency will  make  available to the other  any or all
cases, files, and  records,  including  OSC  reports and  official  determinations,
regarding decisions concerning  exclusions or the imposition of section 311(b)(6)(A) or
(B) penalties.   Where there is  disagreement as to the disposition of a  particular
case, the District Commander and the Regional Administrator  will consult to
resolve the  matter.  If necessary, the matter will be  submitted  to the respective
Agency Headquarters for final resolution.
                                 SECTION HI
                                           »

                                  CRITERIA

         The USCG and the EPA agree that if one or more of the following criteria
exists, the District Commander will refer the case  to the Regional Administrator
in accordance with section II of this memorandum:

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    MEMORANDUM OF UNDERSTANDING BETWEEN THE ENVIRONMENTAL
       PROTECTION AGENCY AND THE UNITED STATES COAST GUARD
   CONCERNING THE ASSESSMENT OF CIVIL PENALTIES FOR DISCHARGES
         OF OIL AND DESIGNATED HAZARDOUS SUBSTANCES UNDER
            SECTION 311 OF THE CLEAN WATER ACT (33 USC 1321)
        The United States Environmental Protection Agency (EPA) and the United
States Coast Guard  (USCG)  have determined that it is  necessary  to  establish
procedures pursuant to which decisions may be made:

        (1)  Whether a discharge of a designated hazardous substance is  excluded
        from the application of the civil penalty procedures prescribed by section
        3U(b)(6) of the Clean Water Act (CWA); and

        (2)  Whether action will be taken under paragraph  (A) or under paragraph
        (B)  of  section 311(b)(6) CWA  to impose a penalty  for the discharge  of a
        designated hazardous substance not so excluded.

        The EPA and the USCG agree that decisions as to  whether a discharge of
a designated hazardous substance is  excluded from  the  application  of section
3U(b)(6) CWA will be made initially  by the  EPA  in  cases evidencing particular
potential violation gravity, i.e.,  meeting criteria set out in section III of this
memorandum.  In all other  cases the decision will be made initially by the agency
providing the On Scene Coordinator to the discharge incident. When a decision is
made that a discharge is excluded, penalty action under section 311(b)(6) CWA will
be withheld.

        The EPA and the USCG agree that decisions as to whether action will be
initiated to impose civil penalties under paragraph (B) of section 311(b)(6) CWA. wjjl
be made bv  the EPA.  Cases involving USCG  responses, which evidence particular
potential violation gravity, i.e.,  meeting criteria set out in section III of this
memorandum, will be transmitted  to the EPA for  its  consideration.  In  all cases
where EPA determines that it is appropriate to initiate civil penalty action under
paragraph (B) of section 3U(b)(6)  CWA, the USCG  will withhold the initiation of
civil penalty action under paragraph (A) of section 311(b)(6) CWA.

        This  memorandum  establishes  policies,  procedures,   and guidelines
concerning the  responsibilities of  the EPA  and the  USCG  in  carrying out  the
foregoing agreement.

        The respective  responsibilities of each   agency specified  in  this
memorandum may be delegated to their respective subordinates  consistent  with
established procedures.                v
                                      «
      '  The EPA  and  the  USCG  will  review   the  implementation  of  this
memorandum at least one  year from  the effective date of 40 CFR Part 117 or
sooner if agreed to by  both agencies, and will make any changes to the policy,
procedures,and guidelines set forth  herein which are agreed to by both agencies.

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   ^       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
   |                     WASHINGTON. D.C. 20460
  V
                           AUG 1 6 1979
                                                  OFFICE OF ENFORCEMENT
Admiral John B. Hayes
Commandant, United  States  Coast  Guard
United States Coast Guard  Headquarters  Building
2100 2nd Street S.W.
Washington, D.C.  20590

Dear Admiral Hayes:

     I am signing the Memorandum of  Understanding concerning

the Assessment of Civil  Penalties for Discharges  of  Oil  and

Hazardous Substances Under Section 311  of  the  Clean  Water Act

with the understanding that the  Coast Guard  and EPA  have

agreed that either  agency  may  terminate this agreement 90

days after having given  notice to the other  agency of its

intent to so terminate.

                               Sincerely yours,
                              Marvin  B.  Durning

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                                                                 .VI.C.6,
"Jurisdiction over Intermittent Streams under § 311 of the CWA", dated
March 4, 1981.

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                                      MAR - 4 1981
         SUSJi.CT:  Jurisdiction Over Intermittent, Streams  under S3H of
                   the Clean A'ator Act

         FJiCHs     toward A. Kurcnt
                   Director, enforcement Division (£:i-33u)

         TO:        Louise L>. Jacobs
                   Director, £nforcc^ei:t Division, ^e^ion  vll


              ?he 2nd Coast Guard District, St. Louie, Missouri,  has
         tr.o issue oi; whet:;cr Clean water Act jurisdiction  :«uy oo asserted
         over a seasonal drainage course wfcicii, at the tirw*  of the spill,
         contained only intermittent pools of water hut which  at othtr
         tiaes flows to & naiued year-round watercourse.  It  has been sug-
         gested that the recent IJth Circuit opinion  in Lir.iteJ States v.
         ?o_xa s P ipg Li , nc Company provides authority for tae  proposition
         tiiat unless" a oody of Welter ic a "running" cr "flov/ing" st-ruan
         at the ti.T.e of a spill, it cannot be subject to 5311  Clean viator
.H        Act jurisdiction.
o
]>             The Texas Pipe Lino case involved en oil spill from a
^        pipeline that was atrucU by & bulldozer.  Sofore  the  flow could
"•»        be shut off, approximately GCU barrels of oil escaped.  The oil
o"        spilled into an unnamed tributary of a named crag*, wh-ich dia-
•^        charged into another naacd crcok, which was  a trioutary oc a
•^        naviv^able river.  The record fit trial indicated that  there vac
\        a small flow of water in the unnamed tri^tary, but there wao
^        no evidence that the other strcaas were or were not flowing.
•*?        The Federal Court tor the Eastern District' of Oklahoma held
3        that the Federal Water Pollution Control Act (FvWCA)  applies
\        to tributaries of navigable v/atcrs rccjardlaan of whether there
jj        is a continuous flow o£ water through the tributaries to the
•i-»        navigable water:
a
>»                  ... the Court is o£ the opinion  that  thc-
.c                  FWPCA A/sc-ndaents ot l'J72 are ap«>iic/it
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          an oil spill, through any intermediate
          tributaries an«3 eventually ir.to navi -jab
          waters at the specific Li.-.ie ot an oil s
          water i/as flowin-j in tnc unnawcd "tributary of
          the £od tfiver, a navigable river, was dourly
          one of "the waters of the Jnitcd States"
          within tnc meaning of £1362(7), an?:! was
          therefore one o£ the * navigable v/atera of the
          Jnitoti States* under Sl321(b){3) . . . U.S.  v.
          Texas Pipe Line Company, «o. 77-o3-0.

     Among the issues on appeal to the luth Circuit was whether
the discharge of oil involved was into "navigable waters"  within
the neaniny o£ the FV/PCA.  The 10th Circuit affirmed  the district
court's jurisdictionai finainy:
          While there ic nothing in this record  to
          show tlio effect on interstate coauaerco of
          this unnaiicd tributary, without question it
          is within the iriccndej cc-v'cravje of the PWPCA.
          It was flowing a snsail ar.ount of water at  tfae
          tiae of the spill.  Whether or net the flow
          continued into the Red raver <*t that tiue,
          it obviously would during significant
          rainfall.

     The language in the Texas Pino Line decision, to  the  effect
that the unnamed tributary into wuicrt tue oil wac spilled  was
flowing at the tiae of the spill, has recently been  cited  by ucr,ie
parties as authority for the proposition that anleaa a wcdy  ot
water is « "running* or "flowing" atrtaa; at tho  tirae of  a  spill,
it cannot be cuoject to S3il Clean Water Act jurisdiction.
However, this interpretation is Dy no aeans dictated cy^ the
language of the ICth Circuit decision.  Although it  is noted in
the decision that the body into which oil was spilled was  flowino
at the tiue of the discharge, it is not at all necessary to
construe this e's the essential jurisdiction*! fact in  the*  case.
A persuasive arguaent can be made that the -Court would have
affirmed the federal government's jurisdictional determination
in Texas Pipe Lino even absent a showing that water  was  flawing
at the ti:so of tiio spill, particularly since it  ruled  that it
xakes no difference whether the receiving wacor body ia  or is not
discharging water continuously into a connected water course at
tiie tiso of a spill for purposes of Clean rfater Act  jurisdiction.

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      In light ci ti.o a;.il;iguity ot  clie r!i-5£;L_.\Jji£..hA1.'!£
please  ta.74) tor  proposition that Congrese  intended "waters of the
United Stetos" to reach to the full  extent permissible under
the Constitution.
                                            t
i/  See United States v.._Phelpa_ Ood^c Corporation, 391 F.^upp.
iltil  (C. Ariz, ii/75; for tiio prot'oaicicn that the FKPCA extends
to all pollutants which are discnargcd  into r.ny waterway/ in-
cludir.y norr^lly dry arrcyos, wisere  any water .wnich  .-ai'jlit flow
tisercin could reasonably end up in any  Louy of water,  to which
or in which  there is acme put-lie interest.
     Aeyionsl ZniJorceTticnt Division  Directors

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                                                                 VI.C.7.
"EPA Authority to Seek Court Imposed Civil Penalties Under Section
311(b)(6) of the CWA", dated November 19, 1984.  Outdated.

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON. D.C. 20460
                            NOV I 9 1984
                                                          OFFICE OF
                                                       GENERAL COUNSEL.
MEMORANDUM

SUBJECT:  EPA Authority to Seek Court Imposed Civil Penalties
          Under Section 311(b)(6)(B) of The Clean Water Act
FROM:     Ephraim S. King
          Attorney
          Solid Waste and Emergency Response Division  (LE-132S)

TO:       Lisa K. Friedman
          Associate General Counsel
          Solid Waste and Emergency Response Division  (LE-132S)


ISSUE PRESENTED


    Region X has requested a legal opinion regarding whether
Section 311(b)(6)(B) of the Clean Water Act (CWA) grants EPA
the authority to seek court imposed civil penalties for oil
discharges.

CONCLUSION

     A literal reading of Section 311(b)(6)(B) suggests that
the Agency may have such authority.  A review of the legislative
history of that provision, however, indicates that it was enacted
by Congress to modify the Section 311 hazardous substance program
only.  Consistent with this indication of Congressional intent,
EPA has taken the position in an August 29, 1979 Memorandum of
Understanding (MOU) with the United States Coast Guard (USCG)
that suoparagraph (B) "does not apply to oil discharges."  44
Fed.  Reg.  50785 (August 29, 1979).  The Agency has taken the
same position in its hazardous substance regulations.  40
C.F.R. §117.22(b) (1983), 44 Fed. Reg. 50774 (August 29, 1979),
44 Fed. Reg. 10277 (February 16, 1979).  On the basis of relevant
legislative history, EPA's role in proposing and interpreting
the 1978 amendments which added this subparagraph to Section 311
and a review of relevant case law, I believe that the better
interpretation of Section 311(b)(6)(B) is that EPA does not
have authority to seek court imposed civil penalties relating
to discharges of oil.

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                             - 2 -

DISCUSSION

     A.  Statutory Language

     Subsections 311(b)(6)(A) and (B) of the CWA provide a two
tier penalty system administered jointly by the United States
Coast Guard and EPA.  Under subparagraph (A), the Coast Guard
has exclusive authority to impose administrative penalties for
discharges of oil and hazardous substances up to $5,000.
Under subparagraph (B), EPA has exclusive authority to commence
civil actions for penalties up to $50,000, and in those situations
involving "willful negligence" or "willful misconduct" up to
$250,000.

     Subparagraph (A) of section 311(b)(6) provides that any
owner, operator, or person in charge of a facility or a vessel
"from which oil or ^'hazardous substance is discharged ...
shall be assessed a civil penalty by the Secretary of the
department in which the Coast Guard is operating of not more
than $5,000 for each offense."  (emphasis added.)  Subparagraph
(A) clearly provides the Coast Guard with authority to impose
administrative penalties for discharges of hazardous substances
and oil.

    Subparagraph (B) provides that "[t]he Administrator, taking
into account the gravity of the offense, and the standard of
care manifested by the owner, operator, or person in charge,
may commence a civil action against any such person subject to
a penalty under subparagraph (A) .,.".(emphasis added.)Since
the penalties under subparagraph (A) apply to discharges of both
hazardous substances and discharges of oil, it would appear,
based solely on the language of Section 311(b)(6), that the
Administrator may seek civil penalties not only for discharges
of hazardous substances but also for discharges of oil.

     B.  Legislative History

         1.  Introduction

    The 1978 Amendments to the CWA added the penalty provisions
of subparagraph (B) to Section 311 and also deleted certain
other penalty provisions which had been established by the
1972 Amendments to the CWA.  The legislative history of these
two sets of amendments indicates that — notwithstanding the
language of the statute — Congress intended EPA's authority
under subparagraph (B) to extend only to hazardous substance
discharges.

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                              -  3  -

          2.   The  1972  Amendments  to  the  Clean  Water  Act

.  •   In the  1972 Amendments  to the CWA, Congress  establishd
clean-up  liability  provisions and penalty  provisions  for  the
discharge of  oil  and hazardous  substances.  The  provisions
relating  to discharges of oil imposed  liability  upon  the
discharger  for the  costs of cleanup, removal,  and mitigation
'incurred  by the Government  under  Section 311(c)  and  (f) and
authorized  the Coast Guard  to impose administrative  penalties
up  to  $5,000  per  discharge.

     The provisions  relating to  discharges  of hazardous  substances
were somewhat more  complicated.   Congress  distinguished between
hazardous substances on the basis of whether they were  "removable"
or'"non-removable".  For "removable" hazardous substances, the
administrative penalty and  cleanup liability provisions outlined
above  applied in  the same way under  the  same sections 311(b)(6),
(c), and  (f).  HoweVer,  for hazardous  substances that were
"non-removable" (and for which  the cleanup  liability  provisions
were therefore inapplicable), Congress authorized EPA to  seek
court-imposed penalties under Section  311(b) (2) (B) .   Under
this subsection,  EPA was required to determine which  designated
'hazardous substances could  be removed  and,  for those  that
could  not,  establish penalties  of increasing severity which were
designed  to deter such discharges.  The  penalties which could
be  imposed by EPA under Section 311(b)(2)(B) were intended to
act  as an economic  incentive for  a higher  standard of care in
the  handling  of non-removable hazardous  substances jL/ and,
.therefore, were much higher than  those authorized for the
Coast  Guard under Section 311(b)(6). 2/

     In its regulations implementing  Section 3H(b) (2) (B) ,
EPA  interpreted the term "removable" narrowly  to mean only
those  substances  that  could physically be  removed from  water. _3/
For  unlawful  discharges of  such removable  substances, the
Agency stated that  the cleanup  liability provisions  of  Section
311(c)  and  (f) would apply.   For  discharges of substances
which  could not be  physically removed  from  water but  which
JL/  Cong. Rec. S18995  (daily ed., October  14,  1978)  (remarks
    of Senator Muskie); Senate Environment  and Public Works
Committee, S. Rep. No.  92-414, 93rd Cong.,  1st Sess. 66  (1971).

J2/  For the first  two years following enactment of  Clean  Water
Act Amendments, the penalties were not  to  exceed $50,000 per
discharge incident.  Upon expiration of that .period, the penalty
was increased not  to exceed $5,000,000  for  the discharge of
non-removable hazardous substances from vessels, and $500,000
from  facilities.

I/  43 Fed. Reg.  10488  (March 13, 1978).

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                             - 4 -

were, nonetheless, susceptible to mitigation action to minimize
the damage, EPA's hazardous substance regulations provided
that they were subject to both the cleanup liability provisions
of sections 311(c) and (f) as well as the deterrent penalty
provisions of section 311(b)(2)(B).

    These regulations (as well as other Section 311 regulations)
were challenged by the Manufacturing Chemists Association in
federal district court.  Manufacturing Chemists Association
v. Costle, 455 F. Supp. 968 (W.D. La. 1978).The court held
that EPA's regulations subjecting contain discharges to both
clean-up liability and deterrent penalty provisions created "a
system of penalties which fulfills not in the slightest the
original legislative intent." Id. at 977.  As the basis for
its ruling, the court relied on the Section 311(a)(8) definition
of "removable" which* explicitly includes "such other acts as
may be necessary to minimize or mitigate damage ..." The court
also referred to a February 18, 1978 letter from Senator Muskie,
which stated:

        Unfortunately, EPA's regulations on this subject
        are deficient .... [T]hey do not make a distinction
        between those hazardous substances which can and
        cannot be removed from water.  The statute clearly
        intended that the distinction be made in order
        to determine whether a spill of a hazardous substance
        would be subject to a cleanup liability provision
        or the deterrent penalty provision.  Id. at 979.
                                                   /
        3.  The 1978 Amendments to the Clean Water Act

    The Manufacturing Chemists Association case triggered the
introduction of a number of Senate amendments to Section 311.
These amendments were added by the Senate to H.R. 12140, an EPA
research and development reauthorization bill, which had already
passed the House.

    The Senate amendments made three major changes in the
Section 311 penalty provisions.  First, they redesignated
Section 311(b)(6) — the Coast Guard administrative penalty
provision for discharges of oil and hazardous substances -- as
Section 311(b)(6)(A).  Second, they deleted Section 311(b)(2)(B)
(the court imposed penalty authority which was keyed to the
"removability" of hazardous substance discharges).  Third, the
amendments established a new court-imposed penalty authority
under which the Administrator was authorized to commence a
civil action for penalties of up -to $50,000 against "any such
person subject to the penalty under Section 311(b)(6)(A)."  It
is this provision which was enacted as Section 311(b)(6)(B).

    Congress'  intent in adding Section 311(b)(6)(B) was discussed
during Senate and House floor debates on the amendments to

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                             - 5 -
H.R.  12140.  The legislative history on the purpose of the
penalty provision is remarkably consistent on both sides of
Congress and focuses exclusively on its application to hazardous
substance discharges.

    Senator Muskie explained the addition of Section 311(b)(6)(B)
as follows:

        [T]he amendment would establish two options for pena-
        lizing dischargers of hazardous substances.  The first
        option, which is already in the statute [Section 311(b)
        (6)(A)] consists of an administratively assessed penalty
        of up to $5,000 for each violation.  The second option
        would be a civil action in Federal District Court for
        penalties not to exceed $50,000 per violation, unless
        the discharge was the result of willful negligence or
        misconduct, in which case the penalty maximum would be
        $250,000 per discharge.  The amendment specifies the
        factors the court would assess in establishing the
        penalty.  Cong. Rec. S18995 (daily ed., October 14,
        1978)  (emphasis added.)

    Senator Stafford, the sponsor of the amendment opened his
own explanatory comments by inserting into the record without
objection a letter from EPA's Assistant Administrator for
Water and Hazardous Materials, Mr. Thomas Jorling, to Senator'
Muskie.  In that letter, Mr. Jorling explained the impact of
the Manufacturing Chemists Association decision and requested
that  the Senate consider adding to the House R&D bill, H.R.
12140, a "non-controversial legislative proposal" which would
resolve the issues ruled on by the Court.   Id. at S19257.  With
respect to the question of hazardous substance penalties, Mr.
Jorling explained the purpose of Section 311(b)(6)(B) as
follows:                            •                     '

        The amendments we propose basically place hazardous
        substances on a par with oil in how they relate to
        the major components of Section 311, with one major
        exception.  Rather than the $5,000 penalty limit
        on oil,the limit for hazardous discharges would be
        $50,000.  Id.   (emphasis added.)

    Following his insertion of EPA's letter into the
record, Senator Stafford elaborated at greater length on the
purpose of Section 311(b)(6)(B):

        [T]he changes place hazardous  substances
        on a par with oil in their relation to the
        major components of Section 311,  except that
        the maximum civil penalty for  their discharge
        would be $50,000, compared with $5.000 for oil....

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                             - 6 -

        The $50,000 maximum involves a significant reduction
        from the existing $500,000 liability for facilities
        and $5,000,000 liability for vessels.  Id. . at S19258
        (emphasis added.)

    Senator Stafford's explanation U/ appears to reflect an
 intention that Section 311(b)(6)(B) replace the hazardous
 substance deterrent penalty provisions of Section  311(b)(2)(B)
 contained in the 1972 Act.  The first paragraph of his comments
 indicates that the penalties for discharges of hazardous substances
 and oil were intended to be different:  $50,000 for hazardous
 substances "compared with $5,000 for oil."  The second paragraph
 makes clear that while Section 311(b)(6)(B) represents a "reduction"
 in the 1972 hazardous substance deterrent penalties,  it is in no
 way intended to eliminate them or fundamentally change their
 original application and purpose.

    On the House si3e, Representative Breaux introduced the
 Senate amendments to H.R. 12140 with general explanatory comments
 similar to those of Senators Muskie and Stafford.  He explained
 that "the bill amends Section 311 of the Act to provide for a
 program of notification, cleanup, and penalties for the discharge
 of hazardous substances" and that it "would amend  Section 311
 in such a way as to meet the court's concerns ..." Cong. Rec.,
 H. 13599 (daily ed., October 14, 1978) (emphasis added).
 Representative Johnson, Chairman of the House Committee on
 Public Works and Transportaton, also spoke in favor of the
 bill and explained that "H.R. 12140 would amend Section 311 of
 the Federal Water Pollution Control Act concerning the regulation
 of hazardous substances."  Id. at 13599.  Chairman Johnson also in-
 troduced into the record a Te~tter received from EPA Assistant Admin-
 istrator for Water and Hazardous Materials, Mr. Thomas Jorling,
 which further explained the need for such legislation in terras
 almost identical, to the letter received by Senator Muskie.

    C.  Memorandum of Understanding And Implementing  Regulations

  .  EPA and the Coast Guard executed a Memorandum  of  Understand-
 ing which established procedures under which the two  agencies
would determine whether a hazardous substance discharge should
appropriately be subject to any 311(b)(6) penalty  and, if so,
whether it should be a Coast Guard adminstrative penalty or an
EPA civil action penalty.  (44 Fed. Reg. 50785, August 29,
1979).  The MOU refers to Congress' intent to create  a dual
option system for penalizing discharges of hazardous  substances
under either Section 311(b)(6)(A) or Section 311(b)(6)(B).
On the question of whether Section 3ll(b)(6)(B) applies to
discharges of oil, Section I of the MO.U simply concludes with
the statement that "The EPA and .the USCG agree that paragraph
 (B)  does not apply to oil discharges."  Id.
47  This view was concurred in by Senator Muskie.  Cong.
    Rec., supra at S18996

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                             - 7 -


    While no further explanation of the basis for this agreement
 is  contained in the MOU, EPA's proposed rulemaking to implement
 Section 3ll(b)(6)(B) specifically addresses the point:

        The legislative history supporting the November 2,
        1978 amendment does not demonstrate an intent to
        change the penalty structure under Section 311 for
        oil spill situations.  Therefore,  EPA does not
        intend to apply the 311(b)(6)(B) penalty to discharges
        of oil."  44 Fed; Reg. 10277 (February 16, 1979).

 The Agency addressed this issue a second time in promulgating
 the final rule implementing the 1978 amendments to the Clean Water
.Act.  In a response to one commenter's suggestion that section
 311(b)(6)(B) be applied to discharges of oil, EPA again concluded
 that:

        The legislative history clearly indicates that
        the Section 311(b)(6)(B) penalty option only
        be used for discharges of hazardous substances.
        44 Fed. Reg. 50774, (August 29, 1979.)

    D.  Analysis'

    The fundamental issue raised by Region X is whether, in
 interpreting Section 311(b)(6)(B), the "plain meaning" of the
 provision should control, or alternatively whether further
 reference to legislative history, contemperanous Agency interpre-
 tations, and Agency regulations should be considered.

    A basic tenent of statutory construction is that statutes are
 to be interpreted in accordance with their "plain meaning."
 The relevance of the "plain meaning" rule is well recognized
 and is often relied upon by the courts.  This rule was explained
 by  the Supreme Court in Caminetti v. United States,  242 U.S.
 470 (1917):             	    	

        It is elementary that the meaning of a statute
        must, in the first instance, be sought in the
        language in which the Act is framed, and if that
        is plain, and if the law is within the constitutional
        authority of the lawmaking body which passed it,
        the sole function of the courts is to enforce it
        according to its terras.  242 U.S. at 485.

    As well known and often cited as this fundamental principle
 is, it "is equally well recognized that the rule is by no means
 inviolate.   In United States v. American Trucking Association
Inc.,  310 U.S.  534 (1940), the Supreme Court made clear thac.-

        When aid to construction of the meaning of words,
        as  used in the statute, is available, there certainly
        can be no 'rule of law"  which forbids its use,

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                             - 8 -

         however  clear  the words may appear on  'superficial
         examination.'   310 U.S. 543-44  (citation
         omitted)

     The  tension  between these two rules of statutory  interpre-
 tation continues  to  be reflected in the court's treatment of
 this issue  up  to  the present day.  Statutory construction
 cases reflect  a  struggle between the recognition, on  the one
 hand, that  Congress  cannot craft words  to address every contingency
 and, on  the other, an  understanding that extrinsic  interpretive
 materials,  such  as legislative history, are susceptible to
 manipulation for  partisan purposes and, accordingly,  may be
 unreliable.  5_f

     In the  period following American Trucking, a number of
 different approaches to resolving this conflict have  developed.
 In  some  cases, the courts appear to look back  to a  strict
 interpretation of the  Caminetti approach. 6/   In other cases,
 the courts  have  fashioned a more liberal interpretation of the
 plain meaning rule;  allowing consideration of  legislative
 history  where  statutory language is ambiguous. ]_/   Yet another
 5/   See  e.g., United States v. Public Utilities Commission,
    .345  U.S. 295  (1953)fTackson, J., concurring); GemsccTV.
 L.  Metcalfe Walling. 324 U.S. 244 (1953); National Small
 Shipments Traffic Conference  Inc. v. Civil Aeronautics Board,
 618 F.2d 819, 828 (D.C. Cir. 1980) ("[WJe note that interest
 groups who fail to persuade a majority of the Congress to accept
 particular statutory language often are able to have inserted
 in  the legislative history of the statute statements favorable
 to  their position, in the hope that they can persuade a court
 to  construe the statutory language in light of these statements.
 This development underscores the importance of following
 unambiguous statutory language absent clear contrary evidence
 of  legislative history.")

 §_l  See, e.g., National 'ftailroad' Passenger 'Corp^ ", 'et'al. v.
     National Association of Railroad Passengers,414 U S.
 453  (1974); Gemsco v. L.  Metcalfe Walling, 324 U.S. 244 (1953).

 II  See e.g., United States v. Public Utilities Commission,
    343 U.S. 295,  315-16  (1953)  ("Where the language and purpose
of  the questioned statute is clear,  courts,  of course,  follow
 the legislative direction in interpretation.  Where the, words
are ambiguous, the judiciary may properly use the legislative
history to reach a conclusion.") ;, Demby v. Schweifcef,  671 F.2d
507 (D.C. Cir. 1981); tawrerice v.'  Staats. 640 F.2d 427 (D.C.
Cir  1981)- United 'States, v. United  States Steel'Corp., 482
F.2d 439, 444 (7th Cir.  1973). cert  denied,  414 U.S. 909 (1973)
 ("We think that the statute is plain on its face, but  since
words are necessarily inexact and ambiguity is a relative
concept  we now turn to the legislative history, mindful that
the plainer the language, the more convincing contrary legislative
history must be".)

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                              -  9  -


 group of cases  allows  recourse  to extrinsic material  where
 adherence to  the  plain language of  the  statute  (even  where
 such language is  unambiguous) would frustrate a larger  congres-
 sional purpose; such purpose  often  being  devined by reference
 to applicable legislative history.  8/   Prominent among  this
 latter group  is the 1976 Supreme  Court  case of  Train  v.  Colorado
 Public Interest Research Group  (PIRG),  426 U,S.  1  (1976),  In
 reversing the lower court's"plain-meaning" opinion,  the Supreme
 Court in this case refused to give  effect to clear statutory
 language in the Clean  Water Act which included  "radioactive
 materials" within the  definition  of "pollutant," holding 'that
 clear and unambiguous  legislative history showed that a  literal
 reading was contrary to Congress' intent.

     The only  certain conclusion that can be drawn  from an exami-
 nation of case  law on  this question  is  that while  the "plain-
 meaning" rule continues to be an  accepted principle of statutory
 interpretation, it is  not dispositive in every  case.  This quali-
 fication is particularly true in  the presence of conflicting
 legislative history where alternative statutory constructions
 are  possible  that better reflect  and more easily fit  with
 stated congressional intent.

     As discussed  above, an examination  of the 1972 amendments
 to the Clean  Water Act and associated legislative history
 clearly indicates that due to the very  nature of certain hazard-
 ous  substances, Congress considered and'explicitly choose to
 adopt a penalty strategy that in  certain repects was  different
 than that provided for oil spills.  The fundamental question
 that must be  addressed in considering the 1978  amendments is
 whether Congress  intended to abandon the-hazardous substance
 deterrent penalty established in  1972 or substantially modify
 it to cover a new class of discharges.
8/  See, e.g., Cass v. United States. 417 U.S. 72 (1974); Malat v.
     Riddell, 383 U.S. 569, 571 (1966) ("Departure from a literal
reading of statutory language may, on occasion, be indicated by
relevant internal evidence of the statute itself and necessary
in order to effect the legislative purpose" (citations omitted));
Wilderness Society v. Morton, 479 F.2d 842, 855 (D.C. Cir. 1973)
("but we have also faced up to the reality that the plain meaning
doctrine has always been subservient to a truly discernable legislative
purpose however discerned" (citation omitted)); Portland Cement
Association v. Ruckelshaus, 486 F.2d 375, 379 (D.C.  Cir. 1973)
("In ascertaining congressional intent, we begin with the language
of a statute, but this is subject to an overriding requirement
of looking to all sources including purpose and legislative
history, to ascertain discernable legislative purpose").  (citations
omitted).

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                             - 10 -


      Senator Muskie explained the penalty provisions of the
 1978  amendments and left no question that while Congress was
 modifying  the articulation of its hazardous substance spill
 liability  and penalty strategy in response to the Manufacturing
 Chemists Association decision, it was not abandoning the 1972
 strategy or expanding it to cover oil discharges.  Senator
 Stafford's comments reinforce the conclusion that Congress was
 committed  to a special hazardous substance penalty provision
 and explicitly decided to leave the oil discharge penalty
 provisions unchanged.

    On  the House side, explanation and support for H.R. 12140
 tracked the debate in the Senate. Representative Breaux specifically
 pointed out that while the bill provided for hazardous substance
 penalties, the Coast Guard"administrative penalties (which covered
 oil)  were  to remain unchanged.

    Taken  alone, the legislative history provides a persuasive
 basis for  concluding that Congress did not intend to extend
 the hazardous substance deterrent penalties to discharges of oil.
 However, other considerations are also relevant to the question
 and provide further support for this conclusion.  Chief among
 these is the Agency's own involvement in the process that led
 to the  1978 amendments.  While it cannot be presumed that Congress
 acted only in response to EPA's request for legislative assistance
 it is clear from the fact that both the Senate and House formally
 incorporated EPA's request into the record that the Agency's
 position was carefully considered.

    In his letter of request to Senator Muskie and Representative
 Johnson, EPA's Assistant Administrator for Water and Hazardous
 Materials could not have been more explicit on the question of
 penalties:

        The amendments we propose basically place hazardous
        substances on a par with oil in how they relate to
        the major components of Section 311 with one major
        exception.  The present penalty structure would be
        replaced by one which sets a maximum fine of $50,000
        for all hazardous dischargers.  Cong. Rec. S19256
        and H13600 (daily ed., October 14, 1978).

The request and explanation contained in this letter assumes
particular relevance in view of the Supreme Court's holding
 that an Agency's interpretation "gains much persuasiveness
 from the fact that it was the [Agency] which suggested the
provision's enactment to Congress."  U.S.  v.  American Trucking
Association,  Inc..  supra, 310 U.-S. at 549;  Hassett v. WelclTT
303 U.S. 303,  310 (1938).

    Moreover,  EPA's role did not end with  its advisory function
during the legislative process.   Within the  first month after

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                              -  11  -

 enactment  of the  1978  amendments,  EPA provided Congress with  an
 Agency interpretation  of Section 311(b)(6)(B).  In  a  letter
 dated  October 24,  1978  to  the Chairmen  of  the Senate  and House
 Committees with jurisdiction over  the Clean Water Act, EPA's
 Assistant  Administrator f.or Water  and Hazardous Materials, Mr.
 Jorling, stated:

        It is our  understanding that section 311(b)(6) (B)
        was  intended solely to  apply to hazardous substances,
        not  to oil, which  continues to be  covered under
        section 311(b)(6)(A) of the amended Act   ....  In
        accordance with Congressional intent as described
        below, section 311(b)(6)(B) will only be  applied
        to hazardus substance.  (See attached letter)

 On  the general question of Agency  legislative interpretations,
 it  is well settled that courts  show "great deference  to the
 interpretation giveiv the statute by the officials or  agency
 charged with  its administration"   Udall v. Tallman, 380 U.S.
 1,  16.  Accord, e.g.,  Zuber v.- Allen, 396  U.S. 168, 192 (1969);
 U.S. v. American Trucking  Association, 310 U.S. 534 (1940);
 NRDC v. Train, 510 F.2d 692, 706 (D.C. Cir. 1975).  This rule
 is  particularly applicable when the Agency interpretation at
 issue  "involves a contemporaneous  construction of a statute by
 the men charged with the responsibility of setting  its machinery
 in  motion, of making the parts work efficiently and smoothly
 while  they are yet untried and new."  Power Reactor Development
 Co. v. International Union of. Electricians, 367 U.S. 396, 408
 (1961), quoting Norwegian  Nitrogen Products Co. v. U.S. 288,
 U.S.  294, 315 (1933).  Accord, e.g., U.S. v. Zucca~3"5T, U.S.
 91, 96 (1956).  Congressional concurrence  in an Agency's statutory
 interpretation is a further factor noted by the Court in Power
 Reactor Development Co. that may be relied upon as an  indication
 of  the interpretation's accuracy.  Where Congress has been
 provided complete and direct notice of a particular statutory
 construction  and has failed to take available legislative
 opportunities  to correct that construction, then this  inaction
may be taken  as "a de facto acquiesence in and ratification
 of" the Agency interpretation in question.  Power Reactor
 Development Co, v. International Union of Electricians, supra,
 367 U.S. at 409.

    The Chairmen.and ranking minority leaders of the Senate
 Environment and Public Works Committee and the House Public Works
 and Transportation Committee were personally notified by letter
 ten days after enactment of the 1978 amendments of the Agency's
 interpretation of Section  311(b)(6)(B).   Further notice was
provided,   of  course, through the Federal Register publication
 of  the EPA -  Coast Guard MOU and also by the proposal and
 final promulgation of hazardous substance regulations  (40
CFR Part 117).

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                             - 12 -


V.  CONCLUSION

     EPA's present position,  which has been expressed in letters
to Congress, federal regulations, and the EPA - Coast Guard
MOU, is that Section 311(b)(6)(B) does not authorize it to
impose civil penalties for discharges of oil.  However, Region
X suggests that a literal reading of subparagraph (B) leaves
open the question of whether  this interpretation is too narrow.
I believe that the better interpretation of the provision
is that does not authorize EPA to seek court imposed penalties
for discharges of oil.

    It should be noted that if the Agency decides to change its
position on the applicability of Section 311(b)(6)(B) it would
be necessary before acting on such reinterpretation to publish
a renegotiated MOU awith the Coast Guard and provide public notice
of the change in the Agency's interpretation from that set forth
in the proposed and final rulemaking preambles to 40 CFR Part 117,

Attachment

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        UN!I!;D sr,Yil.v> I..NVIKONMLK ;,..;_ i-'kO I l.C

                           V.ASHINGTON. O C. 2C-'.00

                          October 24,  1573
                                                            Cifi-:<.:t: or \VAII;H ANO
 Honorable Jennings Randolph
 Chairman, Coir-Mittco on  Environment
   and Pub! ic i-.'orks
 United States Senate
 Washington, D. C.  20510

 Dear r!r. Chairman:

      I want to than/: you for your  assistance in enacting amendments
 to section 311 of the Clean Water  Act.   I  deeply appreciate- the CoiKjress's
 wilKivgnoss to consider the section 311  amendments during the- waniiitj
 i;io;;ients of the «J5ch Congress.  Without the amendments, L'i'A could not
 have implemented any element of the hazardous substances spill program
 for a number of years.  */Ts a result of the efforts of the- 95th Congress,
 v;e can build on the rulemaking effort conducted for the last fc-v/ years
 end get a basic hazardous substances spill  program into operation w.ithin
 a  few months.

      It has  been brought to my attention that there may l/e sc:::e confusion
 over the applicability of the emended section 31 1 (b)(6)(!;).   It is our
 understanding that section 311(b)(6)(B) was  intended solc'y to apply to
 hazardous substances, not to oil, which continues  to be covered und^-r
 section 311 (b) (6 )(/•";)  of the amended Act.   In  seeking an ci::cndi.icr:t tc
 section 311, it v/as  solely our intent to resolve  the issues  raised in the
 Court's injunction of the hazardous substances  program.  In  accordance
 with Congressional  intent as described below,  section 311(b)(6)(B) '..-ill   .
 only be applied to hazardous substances.

      I  believe that  Congress's intent to apply  section 311 (b) (6) (C)
 solely  to hazardous  substances is clear.  When  H.R.  121';CJ was  introduced
 on  the  floor of the Senate,  Senator Stafford's  statement  made  clear the
 i;iLent  that  the reduction of penalties to $50,000  npplioil solely  to
 Ji.iz.irdous substances.   Jn explaining section  311 (b)(G)(ll), IK;  r.l:;jli-cl
 tiic  amendment creator  "two methods for penalizing  dischor-jcrs  oF  h...
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include consideration of the "disposal  characteristic of the substance".
Section 311 of the Act and the recent amendments distinguish "substances"
from oil.

     The statements made on the floor of the House of Representatives
by Congressman John Dreaux when the Senate amended version of II.R. 12140
was adopted also support the interpretation that Congress intended to
apply section 311(b)(6)(B) to hazardous substances and not to oil.
Congressman Crcaux stated "...the bill  amends section 311.of the Act to
provide for a program of notification,  clean up, and penalties for the
discharge of hazardous substances.."  Jn describing the tv.-o tier penalty
system, Congressman Breaux noted that the Coast Guard's authority under
section 311(b)(6)(A) to administratively impose penal ties of up to $5,000
for discharges of oil  and hazardous materials remains unchanged.  Further,
in describing the "gravity of the violation" and.the discharger's efforts
to "mitigate the effects of the discharge", Congressman Hrcaux indicates
that these factors, which the Court is  to consider iji establishing the
penalty under section 3U-(b)(6)(B), apply to hazardous substances.

     Again, thank you for your efforts  to enable implementation of a
hazardous substances spill program.

                                  Sincerely,

                                                   /.'••• \
                                  -"•:• i  ,-,."-<>  '/'•'       »
                                    / /. .•)•'•'      /         ',
                                  Thomas C.  Jorling           .
                                  Assistant Administrator
                                  for Hater and Waste JJanagcment

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VI. D.

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VI. SPECIALIZED ENFORCEMENT TOPICS
    D. CITIZEN SUITS

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                                                                  VI.D.I.
"EPA Response to Citizen Suits", dated July 30, 1984.

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                               1584
MEMORANDUM

SUBJECTi  EPA Response to Citicen Suits

FROM}     William D. Ruckclehaus
          Administrator

TO:       Regional Administrators (Regions I-X)
          Regional Counsels (Regions X-X)


     I recently met with several environciental groups to discuss
their concerns regarding EPA responses to 60-day citizen-suit
notices and the citizen suits themselves.  The environmental groups
have asked us to take several actions in support of citizen suits.

     EPA values the efforts of citizen groups to bring instances
of non-compliance to our attention and to support CPA efforts to
reduce that non-corepliance.  Of course, in deciding on its own
course of action, EPA must review the merits of every citizen suit
notice on a case-by-case basis.  Nonetheless, I greatly appreciate
these groups' efforts to complement the t!PA enforcement prograa
and help promote compliance..

     During our Beeting, the citicen groups thanked me for the
cooperation of EPA employees in responding to information requests
on non-cosapliance.  I would like to pass this 'thank you" on to
ail of you, and urge all Agency enforcement personnel to continue
to cooperate with citicen groups by promptly responding to these
requests and reviewing 60-day notices.

     As you way know, the Office of Policy, Planning and Evaluation
(OPPB) is currently conducting a study of citizen suits through a
contract with the Environraental Law institute (KLI).  OPFE expects
to complete this study by this end of September 1984.  Upon completion
ot* the study, I will decide whether to issue a detailed EPA policy
statement on citizen suits.
cct  Ross Sandier, Natural Resources Defense Council

LE-130A:A.Danzig:th:Rro.3404:7/10/84:475-8785:DISK:DANZIG:1/23

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                              JUL 30 1934
Ross Sandier
Senior Attorney
Natural Resources Defense Council
122 East 42nd Street
New York, N.Y.  10168

Dear Mr* Sandier:

     I enjoyed meeting with you and representatives of environmental
groups on June 12, 1984, to discuss your views on citizen suits.
I truly believe that citizen groups have played an important role
in bringing instances of non-compliance to EPA's and the public's
attention.  Your efforts, especially under the Clean Water Act,
have brought us closer to statutory goals, and for this I an grateful,

     In response to your concerns, I have directed the Regional
Offices to:  (1) continue to cooperate with requests for information
on non-compliance, and (2) to promptly review 60-day citizen-suit
notices.  (See attached memorandum).  EPA will continue to decide
on a case-by-case basis bow to respond to citizen suit notices
after consideration of the merits of the contemplated action and
consistency with EPA enforcement priorities.

     As you may know, EPA is currently studying citizen suits
through a contract to the Environmental Law Institute.  Upon
completion of the study, expected by the end of September 1984,
I will decide whether to issue a more detailed policy statement
regarding how EPA should handle citizen suits.

     Thank you again for expressing your concerns.

                                Sincerely yours,

                                /S/ WILLIAM D. RUCKELSHAUS

                                William D. Ruckelshaus

Attachment


LE-130A:A.Danzig:th:Rm. 3404 .-7/10/84:475-8785:DISK:DANZIGi 1/26

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                                                                  VI.D.2.
"Clean Water Act Citizen Suit Issues Tracking System", dated October 4,
1985.

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        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
                        ocr  4
                                                     ot-HCFot INH>H( i MINI
                                                       ASIUOMI'I I\SC I
                                                        MOMlOKINd
MEMORANDUM
SUBJECT:
FROM:
TO:
          Clean Water Act Citizen Suit
          Issues Tracking System
          Glenn L. Unterberger
          Associate Enforcement Counsel
            for Water

          Rebecca Hanmer, Director
          Office of Water Enforcement
            and Permits

          Colburn Cherney
          Associate General Counsel
            for Water

          Ann Shields, Acting
          Section Chief, Policy, Legislation and
            Special Litigation, DOJ

          Regional Counsels, Regions I-X
Purpose

     The purpose of this memorandum is to establish procedures
by which EPA will monitor important cas^j developments  involving
national legal and policy issues, in order to decide on  an
appropriate position for the government to take regarding those
issues, in citizen enforcement suits brought under §505  of  the
Clean Water Act.

     Due to the growing number of §505 enforcement actions,
and the importance of the legal, technical, and policy issues
raised in them, it has become necessary for the Agency to
develop a better system to track national issues  arising in
these citizen suits once they are filed.  OECM-Water Division
already maintains a log of citizen notices ot intent to  sue.
We will expand the existing system to track subsequent tilings,

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                             - 2 -
case developments, and judicial decisions.  In that way,  the
Federal government will be in a better position to decide if,
when, and how to participate in cases which may result in the
establishment of legal or policy precedents affecting EPA's
enforcement actions.

     The Regions remain responsible for deciding whether a
Federal judicial enforcement action is warranted to address the
violations at issue.  The new Tracking System does not affect
Regional monitoring, review and recordkeeping systems relating
to what enforcement response EPA decides to pursue against a
violator in the wake of a citizen notice.  Instead, the Tracking
System is intended to enable the government to make timely and
informed decisions as to whether, for example, it sho.uld
intervene or file an amicus brief in a citizen enforcement suit
to protect a Federal interest regarding a legal or policy
question of national interest.

Procedures

     EPA regulations (40 CFR 135) provide that CWA citizen
notices of intent to sue must be sent to both the Regional
Administrator (of the Region in which the alleged violations
occurred) and the Administrator of EPA as well as to the aftected
State.  My office will notify the Regional Counsel when we
receive a citizen notice.

     Promptly upon receipt of a §505 enforcement notice (in
which the Administrator is not a proposed defendant), OECM-Water
will send a short form letter to the prospective citizen plaintiff,
requesting that a copy of the filed citizen complaint be sent
to my office.  (As of September, 1985, there are CWA amendments
pending which would require citizen plaintiffs to send complaints
and consent decrees to the Agency.  If enacted, these amendments
would require a response to this first letter.)  Upon receipt  of
a filed complaint, OECM-Water will then request copies of all
dispositive pleadings and court judgments or settlements.  It
is anticipated that voluntary responses to these requests will
provide OECM-Water with the means to adequately track the
progress of these suits and any substantial issues they raise
at trial or on appeal, in the majority of cases.

     OECM-Water will maintain a file for each citizen enforcement
suit.  As pleadings are received, my office will review them to
identify those issues raised which are of particular concern or
interest to the Federal government.  We will also send copies
of all citizen complaints and other significant documents to
Regional Counsels when requested or appropriate as well as to
the Policy, Legislation and Special Litigation (PLSL) office in
the Department of Justice.  Furthermore, we will share the
information received with OWEP, to give the program office an
opportunity to review technical and policy issues raised.

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                             -  J>  -
      When a legal  issue  arises  which may merit  some  level of
 involvement by the Federal  government,  such  as  the  tiling of  an
 amicus curiae  brief,  my  otfice  will coordinate  any  formal
 response with  the  Associate General Counsel  for Water  and with
 PLSL at the Department of Justice.  In  those situations, my
 office will also contact the Regional Counsel and the  Director
 of  OWEP's Enforcement Division.   This group  will be  responsible
 for collectively deciding,  in a timely  manner,  (1) whether
 government action  on  a specific issue arising in a citizen suit
 is  warranted,  (2)  what the  government's action  should  be, and
 (3)  what roles the participating  offices will play  in  pursuing
 any appropriate action.

      As part of this  expanded citizen suit tracking  system, my
 office is now  initiating the compilation or  a compendium of
 documents which set out  the government's position on general
 issues which have  arisen in the context of CWA  citizen suits.
 We  will share  this compendium with you  when  it  is completed.

      The procedures described above make up  an  interim system
 for tracking national issues in CWA citizen  enforcement suits,
 and will be undertaken at the beginning of FY86.  As other
 Divisions within OECM continue  developing such  systems as
 ne.eded,  or as  proposed legislative amendments are adopted, the
 CWA procedures may be modified  so as to promote cross-statutory
 consistency in citizen suit tracking.

      If you have any  questions  about this new citizen  suit
 tracking system, or related CWA §505 issues,  please  contact
 me  (FTS 475-8180), Assistant Enforcement Counsel Jack  Winder
 (FTS 382-2879), or staff attorney Elizabeth  Ojala (FTS 382-
 2849).
cc:  Courtney  M. Price
     Richard Mays
     Directors, Regional Water Management Divisions
     David  Buente, DOJ
     OECM-Water Attorneys
     OECM Citizen Suit Work Group Members
Note:  As of the date of issuance  of  this policy compendium,
this tracking system has not  been implemented by OECM.

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                                                                   VI.D.3
"Notes on Section 505 CWA Citizen Suits," dated February 3, 1986.

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                                                        VI.D.3
"Notes on Section 505 CWA Citizen Enforcement Suits, February 3,1986".
Notes were missing from the Compendium.

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Notes on Section 505 CWA Citizen Enforcement Suits, February 3,1986

I.  Statutory Framework

  A.  Citizens may sue any person violating a CWA "effluent
     standard or limit," or an AO. (Note that RCRA and
     proposed CERCLA provisions differ significantly insofar
     as they authorize citizen suits in response to irnminent
     and substantial endangerments, a standard which arguably
     does not clearly specify what behavior by a regulated
     party can keep him out of trouble with citizens ).

  B.  Federal courts may enforce the standard or limit and
     apply civil penalties for violations of standards,
     limits or orders.

  C.  Citizens may not sue if EPA or a State is "diligently
     prosecuting" a case in court, but may intervene as a
     matter of right.

  D.  A court may award the costs of litigation to any party
     where appropriate.

  E.  Citizens also may sue EPA to perform any
     nondiscretionary act or duty. (Note that courts are
     split on whether CWA enforcement by EPA is
     discretionary).

  F.  Pending CWA legislative amendments:

     o  a Federal administrative penalty action would
        bar a citizen suit, but citizens would have
        the right to participate in an administrative
        hearing.

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     o   citizen plaintiffs must provide copies of
        filed complaints to the Administrator and the
        Attorney General.

     o  citizen suit settlements could not be entered
        until 45 days after the Administrator and
        Attorney General receive copies.

     o  citizen suits to which the U.S. is not a party
        may not bind the U.S.

II. Numbers: Notices and Suits

  A.  Total Notices of Intent to Sue (NOIS): 380(270: 2/85).

  B.  ByNRDC:  95(68: 2/85 ) (25% of Total).

  C.  By Sierra Club:  115 ( 82: 2/85 ) (30% of Total).

  D.  Against Municipalities: 50 ( 38: 2/85 ).  Remainder
     against industrial direct dischargers. No notices for
     pretreatment violations, to our knowledge.

  E.  Most in Regions I, II, VI:

     Region I: 89(72: 2/85)

     Region II:  73(44: 2/85)

     Region VI:  67(50: 2/85)

  F. About 30% - 40% of the NOIS result in Court actions by
     citizens. ( The total number of active CWA citizen suits
     is about half of the number of active EPA CWA suits.)

  G.  Less than 1% of NOIS are dropped due to government
     enforcement.

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   H.  A few suits have been finally concluded, although many
     have resulted in partial S.J. on liability. The
     majority of CWA enforcement cases resulting in new case
     law are now citizen suits.

III. EPA Responses

   A.  Upon receiving NOIS, Region reviews to determine if
     enforcement is underway or appropriate. Generally the
     Regional Counsel's Office is notified of the
     determination.

   B.  If EPA receives a proposed Consent Decree, there  is
     apparently no consistent Agency response pattern.

IV. Legal Issues Arising in Context of Citizen's Suits

   A.  Standing - What must citizens allege? Basically,
     alleging that defendant's violating discharges affect a
     waterbody which a member of the plaintiff citizen group
     uses is enough.

   B. A.O.s - Do they bar citizens'suits? Majority of courts
     holding no, that only a government action in court, or
     an administrative  action "equivalent" to a court action,
     can bar a citizen suit.

   C. May citizens sue ( and impose penalties) solely based on
     past violations? One circuit court says no, most
     district courts say yes. Government has said that
     citizens must allege ongoing violation in good faith,
     but that potentially intermittent or recurring violation
     constitutes an ongoing violation.

   D.  Settlement - Does it bar subsequent Government
     enforcement for same violations? The Government
     believes not, but the courts have not decided this
     issue.

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  E.  DMR's - Are they irrefutable admissions in support of
     Motion for S.J.? Most courts have held that defenses
   •  raised have been insufficient to preclude summary
     judgment on liability against defendant based on
     violations reported in DMRs.

  F.  Can money paid in settlement of a citizen suit go
     anywhere other than to U.S. Treasury?  DOJ strongly
     believes the answer is no, but the courts have not
     directly ruled on this issue.  Many citizen suit
     settlements provide for defendant to pay money to some
     environmental fund not directly associated with the
     plaintiff.

V. Other General Conclusions

  A.  Citizen suits are much more numerous under CWA than
     other statutes because:

     o   civil penalties are available

     o   DMRs  are easily available to help identify violations

     o   there are few defenses available to permit violations

  B.  No indication that EPA is not taking appropriate
     enforcement action, responding to priority problems.
     Citizen suit notices have prompted EPA court action in
     only a small number of cases.

  C.  No indication to date that Section 505 actions interfere
     with EPA actions.

  D.  Possible resource implications:

     o   Citizen review of Agency files.

     o   Agency review of noticed facilities and files.

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   o   Plaintiff and/or Defendant requesting Agency
      assistance.

E.  With a few notable exceptions, citizens are winning the
   cases which are litigated.

F.  On the whole, citizen suit settlements do not appear to
   result in penalties greater than those the government
   typically obtains.  These settlements also typically
   award attorneys fees to citizens.

G.  Regulatees suggest they will agree on less in permitting
   process and consent AO's if they are not protected from
   citizens' suits.

H.  Agency needs better tracking of citizens' suits, from
   NOIS through conclusion, particularly because case law
   developed by citizen suits affects government
   enforcement. We expect to be asking cooperation from
   citizen plaintiffs to keep government better informed of
   filings and developing legal issues.

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                                                                   VI.D.4.
"Clean Water Act Section 505: Effect of Prior Citizen Suit Adjudications or
Settlement on the United States Ability to Sue for same violations", dated
June 19, 1987.

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      .
      ; 'JN-TED STATES ENVIRONMENTAL PROTECTION AGENCY
      '                 WASHINGTON. DC 20460
                         J.UN\ 9 -'in
 MEMORANDUM
 SUBJECT:   Clean Water  Act. Section  505:  Effect of Prior Citize-.'
         •  Suit Adjudications or  Settlements on United States'
           Ability  to Sue  for1 Same  Violations

 FROM:      Glen.?. L.  'Jnterberger  --'-             •
           Associate Enforcement  Counsel
             for Water

 TO:        Regional  Counsels
           Regions  I -  X


     The purpose of this  memo  is  to clarify,  in  response to
 several inquiries  that this office has received, the United
 States' position on the question of whether the  federal
 government is precluded from suing a violator in the face of a
 previous Clean Water Act  citizen enforcement  suit adjudication
 or settlement with  the same defendant for the same violations.
 As indicated  in the attached documents, our position is that the
 United States is in no way estopped from suing a violator (on
 the same violations) for  separate  or additional  relief after a
 citizen suit has been  initiated or concluded. 'The maximum
 potential  civil penalty liability  of the defendant in the U.S.
 action would be- the statutory maximum reduced by any civil
 penalty assessed in the earlier citizen suit  which was actually
 paid into  the U.S.  Treasury for the same violations.  Tins
 position is supported  and  explained in three  attachments to
 this memo.

     Attachment One is the court's order dated March 16, 1987
 in U.S. v.  Atlas Powder Company, Inc., Civ. No.  86-6984 (E.D.Pa)
 The court  holds that "tne  United States is not bound by settle-
ment agreements or  judgments in cases to which it is not a
 party."  See also Attachment Two/  the United  States' memorandum
 in support  of a Motion to  Dismiss  Atlas's Counterclaims, which
 asserts the general principle that the U.S. is' not bound by  the
 results of  prior litigation by private parties over a given  set
of violations because  the  U.S. has interests  distinct from.
those of any private citizens.  The memorandum also quotes an
 excerpt from the Legislative History of the Watsr Quality Act
of 1987, which clarifies  that the  new WQA provision that

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                             -  2  -
provvdes tne United States  in opportunity  to  review  rwA  citizen
suit complaints and consent  decrees  will  not  change  -he  princLpl
that the U.S. is not bouni  by judgments  in  those cases.

     Attachment Three  is a  letter dated  Apri-l  I, 1987  from  t-.e
Department of Justice  to the judge in Student  Public Interest
Research'Group of New  Jersey v. Jersey Central'Power and  Light
Co. , Ci". N'o. 33-2840  (O.N.J.).  This letter discusses in
detail the non-preclusion  issue, wit-, relevant  case  citations.
The letter also emphasizes  that civil penalties must be  paid to
the U.S. Treasury and  that  any monetary  payments made 'in  settle-
ment of citizen suits  which are not paid  to the U.S. Treasury
do not reduce 'a defendant's potential civil penalty  liability
     If you have any questions on these or  related citizen su-.t
issues, please contact OECM Water Division  attorney Elizabeth O^ala
at FTS 382-2349.

Attachments v.v'.r:-- v-\

cc-.  Susan Lepow
     David Buente
     Ray Ludwis?wski
     Ann Shields
     James Elder
     Associats Enforcement Counsels
     Water Management Division Directors, Region I-X
     Water Division Attorneys

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                                                  VI.D.5
"Procedures for Agency Responses  to  Clean Water Act Citizen
Suit Activity," dated June 15, 1989.

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      3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      f  •  '            WASHINGTON. D.C. 20460
                        JUN 151988
                                                         0«ICE Of
MEMORANDUM

.SU3JECT:



FROM: '




TO:
Procedures for Agency Responses to Clean Water
Act Citizen Enforcement Suit Activity
Glenn L. Unterberger
Associate Enforcement Counsel
  for water

Regional Counsels, Regions I-X

James Elder, Director
Office of Water Enforcement and Permits

David Davis, Director
Office of Wetlands Protection

Susan Lepow
Associate General Counsel
  for water

Ann Shields, Section Chief
Policy, Legislation and Special Litigation,
Department of Justice
Purpose

     The purpose of this memo is to set out the general procedures
to be followed by the Environmental Protection Agency,  in con-
junction with the Department of Justice, in responding to and
monitoring citizen enforcement suits brought under Section 505
of the Clean Water Act, 33 USC 1365.

     This memo supersedes prior guidance, issued by this office
on October 4, 1985, concerning EPA tracking of citizen suits.
That guidance is now obsolete in light of recent amendments to
Section 50-5 requiring citizen suit parties to send copies to
EPA and DOJ of complaints and proposed settlements, and in
light of EPA's new ability to bring administrative penalty
actions and pre-empt potential citizen suits for civil penalties.

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The guidance defines roles  for  various  EPA and DOJ  offices  in
addressing- matters relating to  CWA citizen enforcement suits;
however, this guidance  in no way affects  the  fact that the
Regions remain responsible  for  deciding whether a federal
enforcement action is warranted to address the violations at
issue.

Background

     Clean water Act Section 505 (a) (1} •• author izes any person
with standing to sue any person who is alleged to be in violation
of certain Clean Water  Act  requirements,  set  out in CWA S505(f).
In such lawsuits, the district  courts have jurisdiction to
enforce the Act and to  apply appropriate  civil penalties under
CWA S309(d).   Prior to  filing enforcement suits under CWA
S505(b)(l),  however, citizens must give "60-day noti-ce" of  the
violations to the Administrator, the State, and the alleged
violator.   These violation notices must be given in the
manner prescribed by the Agency's regulations, found at 40  CFR '
135, which require chat copies  of the n'otices .(sent via certified
mail to the alleged violator) be mailed or delivered to the
Administrator, the Regional Administrator, the State, and the
registered agent of corporate violators.  3art 135 provides
that the date of service of the notice is -ne date of postmark.

     Through Section 505, Congress has fa- toned a distinct
role for private enforcement under the Clean Water Act.   The
purposes, of the citizen suit provision are to spur and supplement
government enforcement.  The required 60-day violation notices
are designed to provide the Administrator (or the State)  the
opportunity to undertake governmental enforcement action where
warranted, given Agency priorities and finite resource levels.
Where the government does not pursue such action, the citizen
enforcer with standing  may act  as a "private attorney general"
and bring the lawsuit independently,  for civil penalties and
injunctive relief.

     Historically, in the majority of cases the regions
have not initiated federal referrals as a result of citizen
notices, and thus the citizens  are allowed to serve the  role of
"supplemental" enforcers.  This is reasonable in terms of
best use of the Agency's finite resources, and the consistent
setting of federal enforcement  priorities, which should  not
necessarily be driven by citizen enforcement priorities.

     Experience suggests that private enforcement is useful in
helping to achieve Clean Water  Act aoals and to promote  Clean
water Act  compliance.   However, it Is important for the  Agency
to monitor citizen lawsuits to  the extent possible to ensure
proper construction of  regulatory requirements and avoid proole-
rcatic judicial precedents.  It  is also a good :iea for ".he

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 federal government  to  support  the  citizens  where  feasible, such
 as  by  filing  amicus  briefs  in  appellate  courts,, in  order  to
 advance our federal  enforcement  interests.   Examples  of amicus
 curiae briefs which  have  been  filed  on behalf of  citizens so far
 include those in  Sierra Club v.  Union Oil Co. (9th  Cir.), sierra
 Club v. Shell Oil Co.,  (5th Cir.), and Chesapeake Bay Foundation
 v.  Gwaltnev of Smithfield, Ltd.  (4th Cir. and S.  Ct.).

 Recent CWA Amendments  Affecting  Citizen  Suits

     The water Quality Act  (WQA) of  1987 amended  the  Clean
 Water  Act, effective February  4, 1987, in two ways  respecting
 citizen suit  authorities  and responsibilities.  Generally, the
 amended CWA requires that the  Administrator  and the Attorney
 General receive copies of complaints and proposed consent
 decrees in citizen enforcement suits.  In addition, citizen
 suits  for civil penalties may  now be precluded, in some cases,
 by  administrative penalty actions.

     WQA S504 provides as follows:

          Section 505(c)  is amended by adding at  the
    . end thereof  the following new paragraph:
               "(3) PROTECTION OF INTEREST? OF UNITED
          STATES. - Whenever any action  is orought
          under this section in  a court  of the United
          States, the plaintiff  shall ser :• a copy of
          the complaint on the Attorney Gc -.eral and
          the Administrator.   No consent judgment
          shall be entered in  an action  in which  the
          United  States is not a party prior to 45 days
          following the receipt  of a copy of the  pro-
          posed consent judgment by the  Attorney  General
          and the Administrator."

OECM-Water Division and the office of Water are presently  ,
working on proposed regulations  to govern service of  the com-
plaints and consent decrees, which will  be published  in the
Federal Register  shortly.

     WQA Section  314 amends CWA  S309 (governing federal
enforcement actions) to add new  subsection  (g), authorizing
federal administrative penalty actions.  New CWA  S309(g)(6)(A)
and ,(B) provide that citizens  may not bring  civil penalty
actions under Section 505 for  the same violations for  which (1)
the Secretary .(Army Corps of Engineers)  or the Administrator
has commenced and is diligently  prosecuting  an administrative
action under Section 309(g); (2)"the State has commenced and is
diligently prosecuting an .action under a comparable state law;
or  (3)  the Secretary, Administrator or State has  issued a final
order  and the violator has paid  a penalty under S309(g) or

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                             -  4  -                        •     '


comparable state  law;  unless  (a) the  citizen's  complaint was
filed prior to the  commencement  of  the  administrative  action,
or  (b) the citizen's 60-day  notice  was  given  (in  accordance
with 40 CPR 135)  prior  to commencement  of  the administrative
action, and the complaint was  filed before  the  120th day after
the-date on which the  notice was given.

     Thus/ under  these  new amendments,  it will  be necessary for
the Agency to keep  track of when citizen notices  are serv-ed
(i.e., postmarked),, when complaints are filed,  and when proposed
consent decrees are received.  Moreover, EPA and  DOJ need to
clarify procedures  for  deciding how,  if at  all, to review and
respond to citizen  enforcement activity.  The following sets out
the Agency's procedures, in conjunction with DOJ, to implement
these responsibilities.

Procedures

(1)  Violation Notices

     when EPA Headquarters receives a copy  of a citizen
violation notice, the notice is routed to the Associate General
Counsel for Water.  That office  logs  in tr.-? notice, files the
original, and forwards  copies of the  notices to the Associate
Enforcement Counsel for water  (OECM-Water Division),  and the
Director of the Office  of Water Enforceme-  and Permits, or the
Director of the Office  of Wetlands  Protect  on, as appropriate.
Under 40 CFR 135, each  Regional Administrator must also receive
a copy of the notice directly  from  the citizen;  some  regions
have internal tracking  systems, usually handled by the Water
Management Divisions.   In addition, the Office of Wetlands
Protection will forward Clean Water Act S404 notices  to their
courterparts at the Army Corps of Engineers. .

     Since late 1983, OECM-Water has  kept a region-by-region,
chronological log of these citizen  notices, recording the name  of
one notifier and the potential defendant, the location of the
facility, and the date  on the notice  letter.  (Recently, OGC
has begun recording the "date of postmark," which is  the official
date of service under the regulations.)

     In the regions, the general practice has been for water
Division personnel  or Wetlands program personnel to investigate
the compliance record of the noticed  facility, and to contact
the state (if the state runs an approved NPDES program) to
inquire what, if any, enforcement action the state intends  to
take.   The program  office then makes  a determination, with  the
Office of Regional Counsel, as to whether to initiate a federal
enforcement action  to address  the alleged violations.  This
memorandum is not intended to change  the procedures the regions
use to evaluate and respond to the  notices.

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 (2)   complaints

      As  in  the case  of  violation  notices, at Headquarters the
 Complaints  are routed through  the Office of General Counsel, to
 OECM-Water  Division  and the appropriate program office.  The
 Office of Wetlands Protection  will  forward Clean Water Act §404
 complaints  to their  counterparts  at  the Army Corps of Engineers.
 OECM-Water  and the Office of Water  are currently working together
 to amend 40 CFR 135  to  include requirements relating to service
 of complaints on EPA and DOJ.   We expect these regulatory
 provisions  to require citizen  plaintiffs to send copies of
 complaints  to the Regional Administrator in addition to the
 Administrator and the Attorney General.  In the interim, OGC is
 sending copies to the Regional Counsels.  OECM-Water Division
 keeps a  log of the citizen complaints.  Attached for your
 information is a copy of the log  which reflects citizen complaint
 activity through the end of fiscal  year 1987.

     The regions will retain the  authority to recommend whether
 to initiate a federal enforcement action against the citizen
 suit defendant (e.g., by intervention in the citizen suit, by
 filing a separate suit, or by  commencing an administrative
 action) in order to address the defendant's violations.  The
 regions will, also normally have the  lead on monitoring active
 citizen suits from notice and  filing to conclusion, within their
 discretion and as resources permit.   Howe er,. Headquarters
 will get involved in the citizen  enforceme r. action where
 national legal or policy issues arise which merit federal
 attention (other than intervention  as a party to address the
 underlying violations), and each  Region Is requested to notify
OECM-Water Division whenever such an issue comes to the Region's
 attention.

     For example, Headquarters  generally will take the Agency
 lead, working with the  Policy,  Legislation and Special Litigation
 (PLSL) Section of the Department  of  Justice, where issues or
 national law or policy  arise which  call for participation as
amicus curiae in the district  or  appellate courts.  In such
 situations, OECM-Water  wixl be responsible for coordinating
with PLSL, OGCWater, the appropriate Office of Regional Counsel,
and the Office of water to decide collectively (1) whether govern-
ment action on a specific issue arising in a citizen suit is
warranted, (2) what the government's action should be, and (3)
what roles the participating offices will play in pursuing-any
appropriate action.  This type of participation might occur
most often in the context of appeals from judgments in citizen
 suits.  However, the Agency will 'employ the same procedures in
 deciding whether and how to pursue  Federal participation on the
 District Court level.   Examples of  issues which the United
 States has addressed to date in this context include the scope
 of the upset defense, whether  the U.S. can be bound by settlements
 of suits between private parties, and^ whether citizens may
 pursue penalties for wholly past  violations.

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                             -  6  -
 (3)  Con^^nt Decrees

     The proposed consent  decrees,  like  the.violation  notices
and the Complaints, are  routed  through the Office  of General
Counsel to OECM-Water Division  and  the appropriate program
office.  The Office of Wetlands Protection will  forward Clean
Water Act 5404 proposed  consent decrees  to their counterparts
at the Army Corps of Engineers.., Until 40 CFR 135  is amended to
 require that copies be sent to  the  Regions also, OGC will send
copies to the Regional Counsels.  OECM-Water Division  keeps a
 log of these proposed consent decrees.   Attached for your
 information is a copy of the log which reflects consent decree
activity through .the end of fiscal  year  1987.

     Once a copy of a proposed consent decree is received, the
United States has 45 days  within which to review the proposed
consent decree and submit  comments, if any.  OECM-Water will
solicit comments from the  appropriate Office of Regional Counsel,
to formulate the Agency's  position  on any issues which may
arise in the citizen consent decree.  Unless different arrange-
ments are made (e.g., if Federal intervention is contemplated
to obtain further relief), OECM-Water will take the lead for the
Agency in coordinating with DOJ to  formulate proper action by
the United States in response to a  proposed consent decree,
such as a comment letter to the court, whenever necessary or
advisable.      •                                •

     A region will have  the opportunity,   - its discretion and
as resources allow, to offer timely case-specific comments on
the adequacy of relief in  a proposed citizen suit settlement.
OECM-Water will consider comments,  if any, 'from the Region
received within 35 days after the date the settlement is logged
in by the/Administrator's  office.    In any event, the United
States is not obliged to offer any comments to the court.   Our
position has consistently  been that the  federal government is
not bound by the terms of  citizen settlements or judgments,  as
the U.S.  has interests distinct from any private litigants,  and
cannot be deprived of the  opportunity to bring a subsequent
action for more complete relief, should  circumstances warrant.

     PLSL/DOJ will provide copies to OECM-Water and the
appropriate Regional Counsel of any correspondence submitted to
the court or parties in CWA citizen suits and will work with
designated EPA representatives in conducting any follow-up
activity which results.

     If. you have questions regarding this matter, please contact
David Drelich of my staff  at FTS 382-2949.

Attachments

cc:  Regional Water Management Division  Directors
     OECM-Water.Attorneys
     Doug Cohen, DOJ

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VI. E.

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VI. SPECIALIZED ENFORCEMENT TOPICS
    E. SECTION 404

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                                                                  VI.E.I.
"EPA Enforcement Policy for Noncompliance with Section 404 of the FWPCA,"
dated June 1, 1976.

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Sc-;^ 3   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON. D.C. 20460
                              1   JUN 1976  '.
                                                         .OFFICE Or ENFORCEMENT
   Subject:  . EPA Enforcement  Policy for NonCompliance with
            Section  404 of the FWPCA

   From:     Assistant Administrator for Enforcement

   To:       Regional Administrators
            Regional Enforcement Directors
   I.    Background

        As you Icnov,  the United States Amy  Corps  of  Engineers,  pursuant to
   a ruling of the United States District  Court fcr the  District of Cilurii-a,
   KKDC v. Callnv.viy et al,  7  ERG 173-1,  (D.D.C.  March  27,  1975) ,  pror.ulcatec
   interim finul regulations, 33 C.F.R.  209,  (40 Frd.  Reg.  31320. July 25,
   1975) ,  concerning the issuance of permits for the  discharge of drsdred
   or fill material into navigable waters  under section  4Ci(a)  of the
   Federal V.'atcr Pollution Control Act,  as ar.er.ded in 1972  (FvTPC.-.; .  Cn
   S&ptsr.-'.bsr 5,  1975,  pursuant to section  404 (b) c-f the  Fr.-r?CA,  £?.-. pro-
   mulgated interim final guidelines at 40 C.F.7:.  230,  (40  Fed.  ?.er. 4125?.),
   specifying criteria for disposal sites  for dredged or fill r.areriils.
   Kov? that the basic elements of the 404  program  have been established, it
   is time to set forth the appropriate administrative and  civil and criminal
   enforcement procedures to  be follov/ed by  EPA personnel for violations of
   section 301 of the FWPCA arising out of any  form of noncompliance with
   section 404.   .

        It may be useful to recall that for  some time there existed a
   professional and legal difference of opinion between  EPA and the Corps
   surrounding the meaning of the term "navigable  waters" as used in section
   404 of the FWPCA.  Because vital wetland  areas  and other significant
   non-traditional navigable  waters were threatened by potential unlicensed
   discharges of dredged or fill material, EPA  found  it  necessary to formulate
   its own ad hoc interim section 404 enforcement  policy which called for
   EPA enforcement response against violations  or  threatened violations in
   waters over which the Corps was not asserting section 404 jurisdiction.
   However, the promulgation  of the Corps  regulations in conjunction with
   the promulgation of our own guidelines  has resolved almost all of our
   earlier differences of opinion.  It is  important now  that we coordinate
   closely with the Corps to  compel violators and  potential violators to
   submit to the administrative permit review process.

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jl.  Administrative Enforcement Policy

     Because the Corps of Engineers has authority under section 404(a)
of the FWPCA 'to.issue or.deny permits for the discharge of dredged or
fill material' into waters of the United States-,"-the Corps-of Engineers
shall function as the first line of administrative enforcement.  Current
Corps regulations provide District Engineers with authority to issue
ceasa and desist orders for violations of section 404(a),  [33 C.F.R.
209.120(g)(12)].   You should establish with the respective Corps
Districts in your Region a simple procedure by which  the  Corps district
offices notify you of these administrative actions.  Corps regulations
also provide for immediate referral to the U.S. Attorney  v/hera one  of
their cease and desist orders is violated,  [33 C.F.R.  209.120(g)(12)).
Since this procedure involves no delegation by EPA of  the Administrator's
section 309 enforcement authority, we can and in certain  defined
situations may choose to prevent violation of section  301 by issuance of
one of our own section 309. administrative orders.  At  this tir.a, however,
'I  foresee only the following three situations where EPA enfor==-~-t
personnel need to involve  themselves in atlr.ir.istrative enfomr.er.t
arising out of a violation of section 40-':

      (1)  Khan the Corns of Engineers doss nor zir.aly  issue =. c==3e
and desist order against a violator of section 404 in  accord-incs with
the Corps regulations promulgat-iti therour.c:ir,  In such a  case- I?;-.
enforcement personnel shall, after consultr.ticr. with  the  Ccrp= of Sr.gir.oq)
and EPA Headquarters, ta':n appropriate eriforco-sr.t acticr. v:r.i-;r section
309 of the FWPCA.  However, such administrative action car. h= ur.dsrtaken
by EPA only when the Corps refusal'is unjustified on  the  basis of either
facts available to EPA which have been transmitted to the Corps District
Engineer or EPA's legal  interpretation of the FV7PCA.   I wish to stress
that this is an exception  to the general policy enunciated above.

      (2)  In emergency situations when there is clearly insufficient
time to notify the Corps of Engineers of facts available  to EPA which
merit administrative enforcement.  In such a case, EPA enforcement
personnel shall commence appropriate action under section 309  after
notifying EPA "Headquarters.1- However; as'soon-as possible thereafter-EPA
shall notify the Corps by  telephone or otherwise of  the facts  which
prompted our immediate enforcement action.  At that  point the  Corps
should be given the opportunity to issue its own cease ancl desist order
against the violator  (after which we would withdraw  our administrative
order) or to join with us  in any civil or criminal action commenced or
to be commenced against  the violator.  I expect this remedy  to be used
in only the most extraordinary circumstances.

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      (3)  When the Corps of Engineers requests that EPA enforcement
personnel issue a section 309 administrative order. In such a case, EPA
enforcement personnel shall, if appropriate, issue a section 309 adminis-
trative order.

III. Civil and Criminal Enforcement Procedures Upon Referral

     While administrative remedies are preferred, whenever it becomes
apparent to the appropriate EPA enforcement personnel that a violation .
merits referral to the U.S. Attorney for civil and/or criminal
proceedings, EPA shall first notify the appropriate Corps District-
Engineer .(except in emergency situations identified above) , advise him
of the facts surrounding the case, and recommend appropriate legal
action to be taken.  A case may result in enforcement proceedings when
referred by the Corps to the U.S. Attorney after consultation and coordi-
nation with EPA, or when referred by EPA should the Corps decide not to
refer the case, or when instituted by the Department of Justice en its
own initiative.  Upon referral to the local U.S. Attorney by Z??i, or.s
..copy of every section 40-' referral report, as with any referral report,
must be sent  (with inclusion of exhibits and attachments opticr.il) to
the Director, VJater Enforcement Division, EN333, 401 M Street, 3.'.'.,
Washington, D.C. 20460, and another to Chief, Pollution Cc.-.-rrl £ = rticr.,
Land and Natural Resources Division, Department of Justice, ""icl-.i-rtc-n,
fr.C.  20530. The Corps will also notify tha Department of Justice in
Washington.  In all casos, EPA must remain fully apprise:: of all forrral
section 404 enforcement activities brought by tr.a Departr.snt cf Jusr.icc.
We must be particularly diligent in assuring that assortior.s ir. briifs
and all other legal documents to be filed are consistent with Z?A inter-
pretations of such terms as "discharge of pollutants," "navigable
waters," "point source," "willful or negligent," and other tsrms of
substantial jurisdictional import under the FWPCA.  Where the Regional
Administrator is unable to agree with the District Engineer or the U.S.
Attorney on a proposed-enforcement action, the Region will contact EPA
Headquarters by telephone.

     When EPA or the Corps is the referring agency, the Department of
Justice xvill always permit EPA to be Of Counsel in a civil or criminal
case upon EPA1 s-request.' -When- the—Department of Justice brings- a--civil
or criminal case on its ov/n initiative, it will always extend an  '•
opportunity to EPA to be Of Counsel in a civil or criminal case.  Even
where EPA enforcement personnel decide not to formally participate in a
particular case as Of Counsel, regional enforcement personnel will be
expected to review important legal documents  (including any settlement
related documents) to insure both the correct use of the important
jurisdictional  terms found in section 404  (particularly those common to
other FWPCA programs) and  the proper application of the appropriate
environmental criteria.

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  IV. Jurisdiction•

      Your office should establish a procedure with Corps districts for
 coordinating jurisdictional determinations in those occasional  situations
 where presence of "waters of the United States" is unclear  (e.g., transition
 zone of the marsh,  small 'or intermittent streams) .  When di'sputes over
 jurisdiction.cannot be resolved at the regional level, please notify
 this office immediately.  '

"V.    Future Developments

      The policy enunciated herein has been concurred in by  the  Depart-
. nent of Justice and the. United States Army Corps of Engineers.  For the
 tine being, I have chosen 'to issue this internal policy statement rather
 than enter into a memorandum of agreement.  In furtherance  of our cnder-
 standir.g, Justice and the Corps v/ill soon issue similar guidance to
 their field personnel which v;ill bo transmitted to vou ucon rsceiot bv
 this Office.  Of course should actual practir.3 so require,  this colicv
 may, in coordination with tha othsr interested ^yencios, bs re-vised fror\
 tima to tii?.3.

 VI.   Intra-.Vrcincv Co~rnur.ic-?.tiop.5

      Plcas-2 contact th:> .Director, Water Erfcrci.T.ont Division, e.t  (202)
 755-8731 whsncvGr:

      (1)  qu25.;tions arise concerning the policy st-nter. here cr  its
-application in a particular cnr.e;

      (2)  the Region contemplates the issuance of a section 303 ad-
 ministrative order arising out of noncomplianco with section 4C4:

      (3)  legal, questions arise which necessitate guidance  from tha
.Office of General Counsel, such as jurisdictional terms in  formal civil
 or criminal proceedings;                                          •    '

      (4)  the Region contemplates the referral of a criminal or civil
'proceeding—arising --out-of.-, noncompliance--with-.-i.ec.tion .404; or

      (5)  the Region believes section 404 (c) proceedings may be appropriate.

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VII. Conclusion

     This policy is intended to promote legal  corrpliar.ee,  to assure
greater protection of our navigable waters,  and  to  create  a reasonable
and administratively workable enforcement procedure.   1 urge you to <2o
your utmost to avoid duplication regarding section  404 matters which are
to be handled on a first line basis by the United States Array Corps of
Engineers.
                                         Stanley W.^Legro
Concurrences:
                                                                    •--«=--
               Peter  R.  Taft
               Assistant Attorney General
               Department of  Justice
E. Manning Esltzc-r      '^
Chief Counsel
U. S. Anr.y Corps -f Zr.gir.c;
     Dr. Ar.drcv; Broiclenbach,  Assistant  A5r.ir.is~rator for
     VJater  £  Hazardous  Materials,  EPA

     Rebecca  Harrr.er,  Director of Federal .-.7-ivities, r:?A

     Alvin  Alrr.,  Assistant Adninistrator for Plar.nir.g ancl
                ,  EPA
     Robert Zener,  General Counsel,  EPA

     Alfred Ghiorzi,  Chief, Pollution Control Section,
     Dept.  of Justice ;. Land & Natural Resources Division

     William N.  Hedeman,  Jr., Assistant Counsel for Regulatory Functions
     Office, Chief  of Engineers

     Betty" J;"~Faruellr;~Assistant-Counse-l -for -Litigation
     Office, Chief  of Engineers

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                                                                  VI.E.2.
Letter from Attorney General to Secretary of the Army regarding Section 404
of the CWA dated September 5, 1979.

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                                                  5 S£P 1379
 Honorable Clifford  L.  Alexander,  Jr.
 Secretary cf the Arry
 V.'ashine;tor., D.C.   20*310

 f'.y dear r'r. Secretory:

     I r.r. respondir.g  to your  letter  of March 29,' 1979,
 requesting rry opinion  on  two questions arising under 5  404  of
 the Fcceral Water  Pollution  Control £ct,  as amended, 23 U.S.C.
, £ 1244.  You asked  whether  the  Act  gives  the ultimate
 administrative  authority  to  determine the reach of  the  terr.:
 "navigable waters"  for purposes of  c  404  to you, acting
 through the Chief  of Engineers, or  to the Administrator cf  the
 Fnvircr.r.ental Protection  Agency;  and  similarly you  ask  whether
 the Act gives the  ultimate  administrative authority to
 deter-iine the rreaning  of  
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                            - 2 -
Elimination System  (NPDE3) program established  by jj  402; the
Secretary of the Army  issues remits  Cor  the  discharge of
c?rcdceci or fill iraterial under  5  404.  I/
    *                                  ""                      i
   • During consideration of the legislative proposals that
resulted in the Federal Water Pollution Control Act  Ajr.endrr.ents
of 1972, the question  whether the Secretary should piny any
role, thucugh'the Chief of Engineers,  in  issuing permits was
hotly debated.  The bill introduced  in the Senate, S. 2770,
gave the Administrator the authority  to issue per-its and
treated discharges  of  dredged or  fill  material no differently
frcrr, discharges of  any other pollutant.  Curing consider a tier,
of the bill both by the Senate  Public  V'orks Committee 2/ ard
en the Senate  floor, _3/ amendments were proposed to give the
authority to issue  peTniits for  discharges of  dredged or fill
material* to the Secretary of the  Army. These amendments were
offered in recognition of the Secretary's traditional
responsibility under the Rivers and  Harbors  Appropriations  Act
of 16S9, 33 ols.C.  S 4C1 et seo., to  protect  navigation,
including the  responsibility to r'egulate  discharges  into the
navicable waters of the United  States. Concerned that  the
JL/  A point  source  is  defined in the Act cs "any discernible,
confined  ar.d  discrete  conveyance,  including but not limited  to
ar.y pipe, ditch,  channel,  tunnel,  conduit, well, discrete
fissure,  container,  rolling stock, concentrated a?.imal  feef.inc
operation, or vessel or other floating craft .  . .  ."   32
tf.S.C.  S  1262(14).
    •
    Dredged  and  fill material .are  not defined in the  .^ct,  but
arc 'defined  in regulations promulgated by the Corps of
Engineers:   Dredged raterial is ".material that  is  excavated  or
dredged frcrr. waters of the United  St^tec," while fill material
is  "any -rater ial used  for  the pripa_ry__ pur cose of replacing ar:
aquatic area with dry  land or of changing the better,  elevation
of  a water body." 33"c.F.H. § 323.2(k) ,: . (s) .

2/  Senate Ccrr-m. on Public Works,  S3rd Cong., 1st  Sess.,  A_
Legislative  Histarv of the vratar Pollution Control Act
r-jrer.cn-er.ts o£ 1972 (1973), at 1509  (hereafter "I.coislative
History").

     d. at  1386.

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                            -  3  -
Secretary would have  insufficient  expertise  tcr evaluate the
environmental  irpact  cf  a proposed  dredge  or  fill  operation,
Senator ?'.uskie, the author of S. 2770,  opposed those
arenclrrents. £/  He proposed  instead  that  the  Secretary certify
the need for any peri?it  for  discharge  of  drcdgec! rraterial tc
the Administrator, who would!  retain  permit issuing authcrity.
The Senate adopted Senator i-!uskie's  proposal.  _5/

    The House of Representatives bill,  i:.H.  11C'D6, on the
other hand, cave the  Secretary  complete responsibility over
issuing permits for the  discharge  of dredged  or fill rratsri.il.
Although the House bill  required the Secretory to  consult -with
the EPA on the environmental  aspects of permit application::,
the Secretary had  the authority tc  rake the  final  decision en
perr.it issuance. 6/

    The Conference Ccrrittee  substitute,  passed by the
Congress as § 404  of  the Federal Water  Pollution Control Act
Areer.cJirer.ts of 1972, represented a  compromise  between the
S*n?.te and House positions.   It established'a  separate perr.it
procedure for discharges of  dredged  or  fill  raterisl to be
administered by the. Secretary,  acting  through  the  Chief of
Engineers.  The Administrator,  however, retainer! substantial
responsibility over administration  and  enforcement cf S 404.
The E?A responsibilities were perhaps  best surr.arized t-y
Senator Muakie during the Senate's  consideration of the
Conference Report:

             .- First,'  the Administrator  has both
         responsibility  and  authority  for  failure to
         obtain a  Section 404 perr.it or cornly with
         the condition thereon. Section 30?
         authority is available because discharge of
         the "pollutant" dredge spoil  without a
         permit or in violation of  o per-.it  would
         violate Section 301(a).

            •  Second, the Environmental Protection
         Agency irust  determine  whether, or  not a site
         to be used for  the  disposal of dredged spell
±/  I£. ac  1387-81:.

$/  Id.   at 13S3.

G/  ^Jd.   at SIS.

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                            - 4 -
         is acceptable when judged  against.the
         criteria established  for fresh  and  oc'ear.
         i:aters similar to that which  is required
         under Section 403.

             Third, prior to  the  issuance of any
         perr.it to dispose of  spoil,  the Ac'.mini-
         nistratcr trust determine that the material
         to be Disposed of will not adversely affect
         municipal water supplies,  shellfish beds arc!
         fishery areas (including spawning and
         breeding areas)/ wildlife  or  recreational
         areas in the specified site.   Should the
         Administrator so determine,  no  permit may
         issue. 2/

    Subsequent amendment of §  404 by the Clean Water Act  of
1977, 91 Stat. 1566, altered  the.relationship between  the
Secretary and the Administrator in  only limited fashion.   The
amendments cave the Administrator a'Jthority_ comparable  to the
authority conferred en him by the S 4C2 NPDSS program  to
approve and to monitor State  crogrr.ms  for the discharge- of
dredged or fill material.  33  U.S.C.  § 1344(g}-(!).  Kaw
subsection (s) gave the Secretary of the Army explicit
authority under the Act to take action to enforce•those  S T54
permits which he had issued.   JTew "subsection  (n)  cauticr.ec
that the amendments should not be considered  to detract  from.
the Administrator's enforcement authority under £ 203  of  the
Act, 33 U.S.C. t\ 1319. i/
2/  Id. at 177.   This  statement,  which is often quo tec1, ir.
explanation of  the  relative responsibilities of the  Corps and
EFA under. 5 404,  is included in the_ Congressional  F.ecerc! as ?
supplement to Senator  ttuskie's 0:2!' remarks.

£/  Section 309 empowers the! Administrator  to. order  _co~-
pliance with _the  conditions" or limitations  of . £f?r:r^ ts icsuccJ
uhcler~5"402 and ,S^a_te._cerrr,its issued unde_r.'S _-\047^ ar.c! to seek
civil end criminal  penalties with respect to""c"uch'  permits.
Ir.portnntly, _as_the above-quoted  history .cf_C 40.4 _ind.ico^es ,
the soct.ion_a' 1 so  givos .the Administrator._.the_.a.uthc.rity.-to
h£lng _enf or cement, actions .to step discharges-.uithaut_.a
f^cju'ire'd" .permit,  since such; discharges violate  the basic
pcohibiti'oV'set out in § 301 of the Act.  33 U.S.C.  f 131

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                            -  5 -
    With that background, I  turn  to your  specific  questions.
first, you asked whether  the Secretary or  the  Administrator
has the authority under S 404  to  resolve  administrative
disputes over interpretation of the jurisdiction?.! term
"navigable waters."  That question is an  irportnnt one, since
the authority to construe that tern amounts  to-the authority
to determine the scope of the  § 404 permit progra.-.

    The term "navigable waters,"  moreover, is  n  linchpin of
the Act in other respects.   It is critical not only to the
coverage of 5 404, but also  to the coverage  of the other
pollution control mechanises established  under the Act,
including the 5 402 perrcit prograrr. for point source
discharges, 9/ the regulation  of  discharges  of oil and
hazardous substances in § 311, 32 U.S.C.  5 1321, and tha
regulation-of discharges  of  vessel sewage in 5 312, 33 U;S.C.
5' 1322.  Its definition is not specific  to § 4C4,  but is
included ajr.ong the Act's  general  provisions. 10/  It is,
therefore, logical to conclude that Congress intended that
there be only a single judgment as to vhethsr—and to what
extent—:any particular water body cor.es  within the juris-
dicticr.al reach of the federal covern-ent':: 'pollution control
authority.  V.e find no support either in  the statute or its
legislative history, for a conclusion  that ?.  water  body would
have one set of boundaries for purposes  of dredged and fill
permits under S 404 and .0 different set  for  purposes of the
other pollution control measures  ir. the  Act.  On this point  I
believe there can be no serious disagreement.   F.a-cher,
u.n_Ger_5tanqing .thcit-JLnav.igabie .watcrs'L.can .have ..only .cr.e.
interpretation under the  Act,  the ouestion .is whether Ccr.grecs
irite"hc*ed" ultimately -for the  Administrator cr the Secretary "to
describe "its par?.r.etcrs.  •

    The question is.explicitly resolved  neither  in S 404
itself nor in its legislative  history,   t-'y conclusion that  the
JV  The Act, as  stated  above,  contains a general prohibition
against.the  "discharge  of  any  pollutant" except in compliance
with particular  standards  and  perr.it procedures.  5 301 (-a), 33
U.S.C. 5 1311(a).   The  definition  of the phrase "discharge of
pollutants"  includes  a  discharge  from a r.cint source into
"navigable waters."   5  502(12),  33 U.S.C. 5 1362(12).

10/ "Navigable waters"  is  defined  under the Act an rr.eaning
"the waters  of the  United  States,  including the territorial
seas."  S 502(7),  33  U.S.C.  5  1362(7).

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                            - 6 -


Act loaves this authority in the hand's  of  the  Administrator
thus necessarily craws upon the structure  of  the  Act  as a
whole.  First, it is the Administrator  who has the  overall jl
responsibility for administering the  Act's provisions,  exceed
os .otherwise expressly provided.   5 101(d),  33 U.S.C. $
1251(d).  It is the Administrator  as  wsli  who  interprets she
ter^ "navigable v/aters" in carrying out pollution control
responsibilities under sections of the  Act apart  from c 404.

    Additionally, while the Act charges the Secretary with the
duty of issuing and assuring compliance- with  thc>  torm.s of £
404 permits, it does not expressly charge  I:in-, with respon-
sibility for deciding when a discharge  of  dredged or  fill
raterial into  the navigable waters takes place so that the" 5
404 permit requirement is brought  into  play.   Enforcement
authority over perraitless discharges  of creclqeu and fill •
material'is charged, moreover,  to  the Administrator,  ll/

    Finally, any argument ir.  favor of tha  Secretary's
authority to interpret the reach-of the tnrr. "navigable
waters" .for purposes of 5 404  is  substancir.liy undercut: by the
fact that he shares his duties  under  the section  with  the
Administrator.  As outlined above, 5  404 authorizes the
Administrator  to develop guidelines with rer,-ect  to selection
of disposal sites, "to approve  and  oversea  State prccrrarz fcj"
the discharge  of dredged or  fill  material,'and to-veto'en
environmental  grounds any .perr.it  the  Secretary proposes  co
issue.

    I  therefore conclude  that  the structure arc  inter.t cf the
Act support on interpretation  cf  5 404 thf-.t gives the
Artrinistratcr  the  final  administrative rssTcnsili-ility  for
construing  the term,  "navigable  waters."

    .Your  second question  is  whether the Secretary or  the
Administrator  has  the  final  authority  to  construe 5  404(f)  of
the.Act.   33  U.S.C.  S  1344(f).'  That subsection  exempts
 3_I/ 33  U.S.C §S 1311, 1344 (n).  The .Secretary decs  have*
 enforcement authority with "respect to pcrritlecs dischr.rc.-es
 into navigable waters under the Fivers an'.l Karbors
 Appropriations Act of 1899, 33 U.S.C. c$ 407, 413.   Navigable
 waters  for purposes cf that Act have a mere  restrictive
 meaning,  however, than nsvicablo waters unc'-ar the  rcc^rsl
 Water Pollution Control Act".  £.£., t:at-.irp.:.l resourcf.-.? L'gfer.ne
 Council v. Callawny> 392 T. Sup?"  £*$ (C.C.C. J57L:).

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                            - 7 -
certain activities from regulation under 55 404, 301(2.),  and
•102.  The Corps of Engineers has argued that the responsi-
bility for interpretation of the subsection insofar ?s  it
relates to the issuance of the Corps' ? 4C4 permits is  vestee-
in the Secretary.  For reasons similar to those discussed in
connection with your first question, I disagree.  It  is the
Administrator who has general administrative responsibility
under the Act, 33 U.S.C. 5 1251 (d), ar.c who has general
authority to prescribe regulations, 33 U.S.C. § 1261 (a).   Ir.
reviewing the statute ancl its legislative history,  i  find no
indication that Congress intended that the Secretary  have
final authority to construe that subsection for purposes  of
his S 404 program.  Absent such an indication,  I believe  that
the Act would be strained by a construction allowing  the "
Secretary to give a different' content to 5 404(f) than  the
Administrator gives that subsection as it relates tc  pollutic:
control provisions apart from 5 404.  I therefore conclude
that final authority under the Act to construe  5 4C4(f) is
also vested in the Administrator.

                      Yours sincerely,
                    Benjamin R. Ctviietti
                      Attornev General

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UcnsrabJe  Clifford L. AiczasAar, Jr.
S aero ta 17  
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                                                                  VI.E.3.
"Enforcement of Section 404 of the CWA", dated November 25, 1980.

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      !                    WASHINGTON, D.C.  20450

'"< P****'
                                                 AV

                                                    OFFICE OF ENFORCEMENT

   MEMORANDUM

   SUBJECT:  Enforcement of Section 404 of the Clean Water Act

   FROM:     Acting Director, Enforcement Division (EN-338)

   TO:       Regional Enforcement Division Directors


   Background

        As you may recall, in March 1980, the Enforcement Division
   initiated discussion with the Corps of Engineers for the purpose
   of updating and revising the existing June 1, 1976 Enforcement
   Agreement which had been signed by EPA, the Corps, and the Depart-
   ment of Justice.  The proposed new agreement was circulated to all
   regions for review, and comments were received.   Although initial
   discussions were held with the Corps and DOJ, no progress was made
   on resolving this matter.  However, in October 1980, the Corps
   approached EPA with the proposition that it lacked authority to
   enforce against persons discharging dredged or fill materials into
   waters of the United States without section 404 permits.  Although
   EPA has not drawn any conclusions regarding the Corps' authority
   or lack of it, the Enforcement Division has agreed to endorse the
   attached document, dated 7 November 1980,  as an interim approach
   to enforcement of section 404.

   EPA's Role in Enforcement of Section 404

        Pursuant to sections 301, 309 and 404(n), EPA has authority
   and responsibility for enforcement of violations of section 301(a)
   which occur by virtue of discharges of dredged or fill materials
   into waters of the United States without a permit, or in violation
   of the terms and conditions of section 404 permits.  Pursuant to
   section 404(s), the Corps of Engineers enforces discharges which
   violate the terms and conditions of permits it has. issued.
   Therefore, it is reasonable that as a matter of practice, EPA's
   enforcement effort for violations of section 404 has focused
   largely on unpermitted discharges.  Even in this capacity,
   however, a number of Regions have persisted in viewing EPA's
   enforcement role as simply one of support for the Corps' efforts,
   rather than as a complementary one with independent authority
   flowing from section 309.

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            Certain recent developments have  underscored the need for EPA
       to take a more positive approach to  enforcement of section 404.
       The need has arisen most particularly  in cases of solid waste dis-
       charges requiring section 404 permits  pursuant to the Consolidated
       Permit Regulations, 40 CFR §§122.3 and 1 22.51 (c) (2).( ii) , I/  and
       in cases where EPA asserts jurisdiction over waters of the" United
       States, but the Corps disagrees.  In such cases, the Corps has
       been and will continue to be reluctant or unwilling to. take en-
       forcement action.  Therefore, it is  incumbent on EPA to exercise
       its authority under section 309.

       Procedures for Enforcing Dredge or Fill Violations

            Section 309 authority may take  the form of administrative
       orders or judicial actions, civil or criminal.  The procedures for
       enforcing section 404 requirements are the same as those for any
       other, violation of section 301 (a).   Administrative orders may be
       issued by the Regional Administrator's delegatee,  with courtesy
       copies sent to*fctoe<>af;fxixa«xxx&xW;e^rx)Btt£B
                                                        Civil actions
       should be prepared in standard civil  litigation report format,
       and forwarded to**txhjex;O£i»x>axK&>&afcecKx£o^
                                                       for review and
       referral to the Department of Justice.
       tt»mxHtfxtt«mwxmxKm}^
            In all cases, EPA should notify  the  appropriate Corps
       district of a planned or proposed enforcement  action.  This
       notification is designed to achieve two results.   First, it will
       insure that the Corps does not take an inconsistent action which
       would jeopardize the efficacy of EPA*s enforcement action.
       Second, it will afford the Corps an opportunity to join with EPA
       in the action.

            If you have any questions, please contact Joan Ferretti or
       Betty Cox of my staff at FTS 755-2870.
**
                                      DaVid


Office of Enforcement and Compliance Monitoring, Water Division and the Office of Federal
  Activities, Aquatic Resource Division.
Office of Enforcement and Compliance Monitoring, Water Division with courtesy copy to Office
       PftTi-i -Act-4-v4 ti fts^. --AQiistrVC- Rfisotiy^Gp— ^vv4^r4-ofv

        For a fuller  discussion  of the appropriate enforcement action
        for such discharges,  see Memorandum from R. Sarah Compton,
        Deputy Assistant Administrator for Water Enforcement, to
        Enforcement Division  Directors and Section 404 Coordinators,
        September 11,  1980.

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Attachment

cc:  General E. R. Heiberg,  III
     Regional §404 Coordinators
     George Ciampa, Region I
     Richard Weinstein,  Region II
     Elo-Kai Ojama, Region III
     Susan Schub,  Region IV
     Jerry Frummr  Region V
     Tony Anthony, Region VI
     Bill Ward, Region VII
     Lee Marabel,  Region VIII
     Ann Nutt,  Region IX
     John Hammill, Region X

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                                                                 VI.E.4i
"Enforcement Authority for Violations of Section 404 of the Clean Water
Act", dated November 7, 1980.
                                                                       r\ \ n

-------
                          DEPARTMENT OF THE ARMY
                           OFFICE OF TMC CHIEF Or CNGINCERS
                               WASHINGTON. O.C. 20114
 DASN-CKD-N      .

 SUBJECT:   Knforccmcnt Authority for Violation;; of  Section  404 of Clean
Division Engineer, Lower Mississippi Valley
 1.   Reference:

       a.   Letter,  DAEN-CKZ-B, 26 May 1980,  to Division  Engineers,  snbject:   Lcg::l
Authority  Under Section 404 of the Clean Water Act of 1977  to  Enter Private
Property.

       b.   Letter,  LMVOC, 25 September 1980, to DAEN-CWZ-B,  citing  agreement
!;? elevate Section 40-1 permitless enforcement authority problem to l-PA/COE
llcudquariers  for resolution.

2.  This letter provides clarification to the guidance  set  forth in the
reference  la  above.   It shall be implemented on an interim  basis pending
revision or change of the June 1976 KPA/Corps/Justicc enforcement  memorandum
currently  being discussed between OCE and EI'A.

3.  The Corps should continue to curry out a strong enforcement program ircluu-
it:«;  '.he issuance of cease and desist orders ayainst unauthorized activities.
':: tr.e past there  was clear justification for this position  based  on the
inherent, author!ties vested in Ihe Chief of Enyuicors.   This residual.  p'»rnni.  However, the  Civiletli Atvorvur/
(.'/(.•r.wi-al Opinion of September 5, 1S79, undercut that rationale.  .Nonetheless,
in order t.n serve  the public interest and pj-evi-nt confusion, we: sliouici
ci;r.tir.uc our  enforcement program as in the past ur.Jess  precluded by future
judicial decisions.   Accordingly, the district engineers sh:tl I  proceed in
vhe following manner:

      a.   If  the site of the discharge is a "water of the United States."
as interpreted  by  the district engineer, the procedures set  forth  at
33 CFK 326 shall be  followed and, as appropriate, a permit  sh;iJ ] be required
anvl an appl icul inn accepted (no eii.ui|'c t«» pn;:'rnl pi-ai;tiee).

      b.   If  the site is in a previously'designated "special case" pursuant
to the Corps/EPA .jurisdiction, MOlj (Federal Register, Volume 45, \«,. 120,
July 2, 1U«0, p. JI5°18), EPA will be responsible for the cnforcimen: acti.->t-;.

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DAEN-CWO-N
SUBJECT:  Enforcement Authority for Violations of Section 404 of Clean
          Water Act

If the Corps learns of discharge activities in such special cases  it. will
notify EPA i immediately.  If a pcnnit  is subsequently ._aui?'cd   un  application
will be accepted and processed by  the district engineer consistent with
current regulations.

      c.  If lands under a and b above 'are involved in the  same case, EPA will
normally be responsible for enforcement ac'tiops; however, by mutual agreement,
the district engineer may assume the responsibility.

4.  Paragraph 6 of the Corps/EPA Jurisdiction MOU states  that any  jurisdictional
determination made by EPA as a result of an enforcement action  wi U he used
by the district engineer as the basis for all subsequent  404 actions
of that case.  Therefore, if EPA (or the Department of Justice  on  its behalf)
brings an enforcement action against the discharger, the  district  engineer shall,
consistent with 33 CFR 326, accept an application for an  aftcr-thc-fact  or
subsequent pcnnit application consistent with the assertions made  by  the EPA
in th;il action.  If it is at all unclear from KPA's enforcement action whether
ail phases of the discharger's activities are taking place  in "waters of the
United States," .the district engineer shall forward the csisc to EPA for  a
forma] jurisdictional delineation before processing any permit.   Informal verbal
or written communications (actions other than enforcement actions  signed by
the regional administrator or his designee) will not in themselves establish
jurisdiction.  In such case where EPA brings an enforcement action and  in ca
3b and 3c above, any public notice will clearly state that  the  jurisdictional
determination has been. made by EPA.
5.  Pursuant to Section 404(s) of the Clean Water Act,  each  district  cr.ciir
shall conscientiously implement enforcement actions against  permit condition
violations.  This applies regardless of the location of the  discharge.

«•».  This letter dees not alter our 1'iil 1 authority and responsibility  to take
i'nftirc«%nu.-nt action against ;ill violations of  the Hiver  and Harbor  Act  of
     in tr:iui t ion:il ly luiviuahle waters of the United States.
K'.JK TMK UIIKF OF KXU INKIiKS:
                                                  -.< ^ 7
                                     •E. It. IIEIKKRC  III
                                     Major Gciu-rnl , USA
                                     Director of  Civil Works

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                                                                  VI.E.5.
"Guidelines for Specification of Disposal Sites for Dredged or Fill
Material", Federal Register Notice, Volume 45, No. 249, dated December 24,
1980.

-------

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Wednesday
December 24, 1980
Part IV



Environmental

Protection Agency

Guidelines for Specification of Disposal
Sites for Dredged or FBI Material

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         Federal EagJsto ] VoL 45^. Me. 34S /  Wednesday. December M. M6Q /  Rates and
 discharge which will create fast lards;
 the permitting authority should consider,
 in addition to the direct effects of the fill
 inself, the effects on the aquatic      :
 environment of any seasonably
 foreseeable, activities to be conducted
 on that fast land.
   Section 230.54 (proposed 230.41) deals
 with Impacts on parka, national and
 historical monuments, national sea
 shores, wilderness areas, research sites,
 and similar preserves. Some readers
 were concerned that we intended the  .
 Guidelines to apply to activities in such
 preserves whether or not the activities
 took place in waters of the United
 States. We intended, and we mink the
 context make&it dear, that the
 Guidelines apply only to the
 specification of discharge sites in the
. waters of the United States, as defined
 in 5 230.3. We have included this section
 because the fact that a water of the
 United States may be located in one of
 these preserves is significant in
 evaluating the impacts of a discharge
 into that water.
   Wetlands: Many wetlands are waters
 of the United States under the  dean
 Water Act Wetlands are also  the
 subject of Federal Executive Order No.
 11090, and various Federal and State
 laws and regulations. A number of these
 other programs and laws have
 developed slightly different wetlands
 definitions, in part to accommodate or
 emphasize specialized needs. Some of
 these definitions include, not only
 wetlands as these Guidelines define
 them, .but also mad flats sad vegetated
 and unvegetated shallows. Under the
 Guidelines some of these other areas are
 grouped with wetland* as "Special
 Aquatic Sites" (Subpart E) and as such
 their values- are given special
 recognition. [See discussion of Water   -
 Dependency above.) We agree with the
 comment thai the National Inventory of
 Wetlands prepared by the US. Fish and
 Wildlife Service, while not necessarily
 exactly coinciding with the scope of
 waters of the United States under the
 Clean Water Act or wetlands under    .
 these regulations, may help avoid
 construction in wetlands, and be a
 useful long-term planning tool, -i
   VariousxxHnmenters objected to the
 definition of wetlands in the Guidelines
 as too  broad or too vague. This
 proposed definition has been upheld by
 the courts as reasonable and"consistent
 with the Clean Water Act and is being
 retained in the final regulation.
 However, we do agree that vegetative
 guides and other background material
 may be helpful in applying; the definition
 in the field. EPA and the Corp* are
 pledged to work on joint research to aid
 > liiriidirtinnal determinations. As: we
 develop< ir**^-ini>t'"'{j'i*. '^^ will Babe
 them available-tot the. public.' •"
   •Other commenters-suggested that we
 expand th? list of «w»«npu»p In th*.
 second sentence.of the wetland
 ^nBnlKfirti WKttn tKfir myytatriA.
 additions couldUegaDy be added we
 have not done so. The Hat la one of
 examples only, and! does not serve as a
 limitation on the basic definition. We
 are reluctant to start expanding the list
 .'since there aie> many kind* of wetlands
 which could be included, and the list
 could became very unwieldy.
   In addition, we wisb to avoid the
 confusion which could result from listing
 as examples, not only areas which
 generally fit the wetland definitions, but
 also areas which may. or, not meet.the
 definition depending on the particular
 circumstances of a given site. In sum. if
 an area meets the definition, it is-a
 wetland for purposes of the Clean Water
 Act whether or not it falls into one of
 the listed examples. Of course, more
 often than not It wfll be one of the listed
 examples.              •           ;
   A few commenters died alleged
 inconsistencies between the definition
 of wetlands in 5 2303 and 5 230.42.
 While we see no inconsistency, we have
 shortened the hitter section as part of
 our effort to eliminate unnecessary
 comments.
   Unvegetateo^ShaDows: One of the
 special aquatic anas listed; in  the      .
 proposal was "unvegetated shallows'*
 (8 230.44)-Since special 'aquatic areas
 are subject to the presumptions in.
 { Z30JO(a)(3), it is important'mal they
 be dearly defined so thatthe permitting
 authority may readily know when to
 apply the presumptions. We were
 unable to develop, at this time, a
 definition for unvegetated shallowi
 which was both easyto apply and not
 too inclusive or exdusitit.Tbgrgiore, we
 have decided the wiser eeu*ee*ir to
 delete unvegetated' shallows from the  ..
 spetial aquatic area' classification. Of
 course, as waters of the United States.
 they are-still subject to the rest of the
 Guidelines.      -        '       .
   "FID Material": We are temporarily
 reserving § 280.3(1). Both the proposed •
 Guidelines and the proposed
 Consolidated Permit Regulations
 defined fill material as material
 discharged for the primary purpose of
 replacing an aquatic area with dryland
 or of changinyrae bottom etevatioa of a
. water body, reserving to the NPDES
 program discharges with die same effect
 which are primarily for the purpose of
 disposing of waste. Both proposals
 solicited comments on this dististctien,
 referred to as the primary purpose test
 On May 19, I960, acting under a court-
still pending. These ConsoRdsJeaHfennit
p°g''t*^.rwu-tTiH lif-nfr-'MhM^

primary puippse-testazui-hicIiidedlasfilL
material att pbflntants which-hava the  •-
effect of fifl, that is, which replace part
of the wateaTof tna,UnitsdSUteswilh
dryland or which changp the V»H«m •  '_
elevation of a water body for any    ,
pjgpose. TBJS-BSW dufoption-is similar
to the one used befate 1897.     .•    .
rulemakina^ tfaerCoips >«»»• raised
questions-aJbouk the implementation of
sucka dafinttissB Because ol me
impartanc»efjBaldagthe Final
Guidelines awaflable without further
delay..andfaecsBaeW onrdesirs- to
cooperate wjtfi the Corps ki resolving
their concerns about fill material, we
have-decidtd to temporaiily reserve
§ 23O3(l)peBdM^Dtfther discussion,
Thisriacttea does act affect the
effecttreaesftof tiw Consolidated Permil
Regulations. Consequently, mere is a
discrepency between those regulations
and meGorps' BegnlatioDS, which still
contain tha old definition.   ,
  Tnerefore^te-«amd any uncertainty
faom this, sitaation^ EPA wishes to make
deaz IteenisKcaottnt policy/ for  :
unpftnnitteddiBcbarge»oisolid wastes
EPA has snUuicitrvnderscctkB 309 of
againstviolattoms.fltssctiaB:301.
UnpetmUtod.dMdiai8es of aelid waste
into waters of the United States violate
section 301..    -.•:.  .-..- - : ••-"' ••-.-•.   ..  •
 . Under A& pungent cimmsteacesvEPA
psma toissoeraolid waste «dminisjbrattv&
orders- w{i1ie-GocpS'bBa agteed to
accept ti^ese ap(dicatios»aBd to bold
themairiil*j.RsoIvesHite position on. the
  Second, fteoder wiltoaastrain
further discbascnhby. the violator. In
extreme cases* a» order may require
that discharges-cease immediately.
However, becaas&w* recognize- that .
there will be- s: lapse of time before
decisioBS are made«a this kind of
pemrit application^ tftes* orders- may
expressly aUow iBpezmitted .discharges
te oontinae- subject to specific oonrfilions:
further envboaawataijlamaBe.
  Of course, these aden -will not
influence m*ii&Baate issuance or non-
issuance «£a panriior dattrmiBe the
a permit Nor wffl socb orders Emit the

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85342  Federal Register /  Vol;  45,ftfo/249 / W(9dnefldayt December 24, 1980 /Rides arid ^Regulations
Administrator's authority under section
309fb) or the right of a citizen to bring
suit against a violator under section 605
oftheCWA.
  Permitting Authority: We have used <
the new term "permitting authority,"  ,
instead of "District Engineer."
throughout these regulations, in
recognition of the fact that under the
1977 amendments approved States may
also issue permits.

Coastal Zone Management Plans
  Several commehters were concerned
about the relationship between section
404 and approved Coastal Zone
Management (CZM) plans. Some
expressed concern that the Guidelines
might authorize a discharge prohibited
by a CZM plan; others objected to the
fact that the Guidelines might prohibit a
discharge which was consistent with a
CZM plan.
  Under section 307(b) of the CZM Act,
no Federal permits may be issued until
the applicant furnishes a certification
that the discharge is consistent with an
approved CZM plan, if there is one, and
the State concurs hi the certification or
waives review. Section 325.2(b](2) of the
Corps' regulation. Which applies to all
Federal 404 permits, implements this
requirement for section 404. Because the
Corps' regulations adequately address
the CZM consistency requirement, we
have not duplicated 8 325.2(b)(2) in the
Guidelines. Where a State issues State
404 permits, it may of course require
consistency with its CZM plan under
State law.
  The second concern, that the 404
Guidelines might be stricter than a CZM
plan, points out a possible problem with
CZM plans, not with the Guidelines.
Under 307(f) of CZMA. all CZM plans
must provide for compliance with
applicable requirements of the Clean
Water Act The Guidelines are one such
requirement. Of course, to the extent
that a CZM plan is general and area-
wide, it may be impossible .to include in
its development the same project-
specific consideration of impacts and
alternatives required under the
Guidelines. Nonetheless, it cannot
authorize or mandate a discharge of
dredged or fill material which fails to
comply with' (he'requirements of these
Guidelines. Often CZM plans contain a
requirement that all activities conducted
under it meet the permit requirements of
the Clean Water Act In such a case,
there could of course be no conflict
between the CZM plan and the
requirements of the Guidelines.
  We agree-with commenters who urge
that delay and duplication of effort be
avoided by consolidating alternatives
studies required under different statutes,
including the Coastal Zone Management
Act However, since some planning   '  '
processes do not deal with specific
projects, their consideration of  •
alternatives may not be sufficient for the
Guidelines. Where another alternative
analysis; is less complete than that
contemplated under section 404, it may •
not be used to weaken the requirements
of the Guidelines.      -              ;
Advanced Identification of Dredged or
Fill Material Disposal Sites
  A large number of commenters
objected to the way proposed § 230.70,
new Subpart I had been changed from
the 1975 regulations. A few objected to
the section itself. Most of the comments
also revealed a misunderstanding about
the significance of identifying an area.
First the fact that an area has been
identified as unsuitable for a potential
discharge site does n'ot mean that
someone cannot apply for and obtain a
permit to discharge there as long as the
Guidelines and other applicable
requirements are satisified* Conversely,
the fact that an area has been identified
as a potential site does not mean that a
permit is unnecessary or that one will
automatically be forthcoming. The intent
of this section was to aid applicants by
giving advance notice that they would  .
have a relatively easy or difficult time
qualifying for a permit to use particular
areas. Such advance notice should
facilitate applicant planning and shorten
permit processing time.
  Most of the objectors focused on
EPA's "abandonment" of its "authority"
to identify sites. While that "authority"
is perhaps less "authoritative" than the
commenters suggested (see above), we
agree that there is no reason to decrease
EPA's role in the process. Therefore, we
have changed new { 230.80(a) to read:
  "Consistent wiuVthese Guidelines. EPA
and the permitting authority on their own
initiative or at the request of any other party,
and after consultation with any affected State
that is not the permitting authority, may
identify sites which will be considered as:"
  We have also deleted proposed
S 230.70(a)(3), because it did not seem to
accomplish much. Consideration of the
point at which cumulative and
secondary impacts become      •
unacceptable and warrant emergency
action will generally be more  :    •
appropriate in a permit-by-permit
context Once,.that point has been so
determined, of course, the area can be
identified as "unsuitable" under the new
§ 230.80(a)(2).
  * EPA may foracloM the me of • site by
exercising it* authority under Motion 4Mfc): The
advance identification referred to In this lection is
not o section 4M(c) prohibition.
 ••• •    •. - •• •-. i!«••••..   •  •• •  •. •  •
 : A number of commenters took the.'
 position that Executive Order 12044  .
 requires EPA to prepare a "regulatory
 analysis" in connection With these
 regulations. EPA disagrees. These .     ;
 regulations are not strictly speaking,
 new regulatibnsVTbey do not impose
 new standards br'requiremerits, but
 rather substantially clarify'and'    •
 reorganize.'the existing Interim final
 regulations   •     ..    ' •-. r
  Under EPA's criteria implementing
 Executive Order 12044, EPA will prepare
 a Regulatory Analysis for any regulation
 which imposes additional annual costs
 totalling $100 million or which will result
 in a total additional cost of production
 of any major product or service which
 exceeda.5% of its selling price. While
 many commentBrs, particularly
 members of the American Association
 of Port Authorities (AAPA), requested a
 regulatory analysis and claimed that the
 regulations were too burdensome, none
 of them explained how that burden was
 an additional one attributable to this
 revision. A close comparison of the new
 regulation and the explicit and implicit
 requirements in the interim final
 Guidelines reveals that there has been
.very little real change in the criteria by
 Which discharges/are to be judged or in
 the tests that must be conducted; '
 therefore, we stand by our original
 determination that a regulatory analysis
. is not required '•'• 1.'.  "  :   '  .
  Perhaps the most significant area hi
 which the regulations are more explicit
 and arguably stricter is m the
 consideration of alternatives. However,
 even the 10>5 regulations required the
 permitting authority to consider "the
 availability of alternate cites and
 methods of disposal that are less ''
 damaging to the environment" and to
 avoid activities which would have
 significant adverse effects. We do not
 think that the revised Guidelines' more
 explicit direction, to avoid adverse
 effects that could be prevented through
 selection of a clearly less damaging site
-or mernod is  a change imposing a
 substantial new burden on the regulated
 public.
  Because the revised regulations are
 more .explicit than the interim final
 regulations in!aome respects, it is
 possible that perntil reviewers will do a
 more thorough }ob evaluating proposed
 discharges. This may result in somewhat
 more carefully drawn permit conditions.
 However, even if, for purposes of
 argument the possible cost of complying
 with these, conditions is considered an
 additional cost there is no reason to   7
 believe that it alone will be anywhere
 near $100 million annually.

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                                                                 VI.E.6.
"CWA Section 404 Administrative Orders for Removal or Restoration",dated
May 20, 1985.

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           UNITED STATESJ5NVIRONM5J4TAL PROTECTION AGENCY
                          MAY 20 1985
MEMORANDUM

SUBJECT*  Clean Water Act, Section 404?
          Administrative Orders for Removal or Restoration

FROM:     Glenn L. Unterberger
          Acting Associate Enforcement Counsel
            for Water

TO:       Regional Counsels


     Enforcement actions to protect wetlands are emphasized  in
the Agency Priority List for FY 1986-87.  Changes  in  the Agency
accountability system now require that regional program offices
report periodically upon numbers of wetlands-related  inspections
conducted and other compliance actions taken.  Conseguently,
we expect that the program offices will be contacting the
Offices of Regional Counsel with an increasing number of
enforcement actions directed to wetlands protection under the
section 404 program.

     The purposes of this memorandum are (1) to affirm EPA's
position that the Agency may issue administrative  orders under
section 309 of the Clean Water Act requiring removal of dredged
or fill material or restoration of wetlands, in response to
such violations, and (2) to identify the legally strongest
circumstances for EPA to use these orders.

Background

     Pursuant to section 309 of the Clean Water Act,  the Agency
may take enforcement action if a person has unlawfully discharged
dredged or fill material without a permit, or in violation of a
permit issued under section 404 by a State.JL/  The Agency may
also take enforcement action if a person has discharged dredged

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                             - 2 -
or fill material in violation of a permit issued by the Corps
of Engineers.2/

     The Agency may respond to unpermitted discharges or permit
violations by seeking a court order requiring a discharger to
remove his fill and otherwise restore the affected waters.3/
The Agency may also administratively order an unpermitted ~~
discharger or permit holder to cease an on-going violation and
to refrain from committing a future violation.4/

     Section 309(a)(3) of the Clean Water Act also is broad
enough to provide the Agency with the authority to issue an
administrative order requiring an unpermitted discharger or
permit violator to remove his fill or otherwise restore the
affected waters, even though that authority is less explicit.
Absent any judicial opinion which clearly disposes of the issue,
the Agency should respond to such violations as discussed below
so as to ensure that the Agency's authority to issue restoration
and removal orders will be upheld.

Circumstances Supporting EPA Issuance of Administrative
Restoration or Removal Orders

     The Act and case law discussed below suggest situations
in which a court would more likely uphold an administrative
     2/  A discharge in violation of a Corps-issued permit is
not "Tn compliance with ... section(J 404" of the Clean Water
Act.  Clean Water Act, sec. 301(a).  Consequently, the person
discharging in violation of a Corps-issued permit is "in
violation of section 301", and subject to Agency enforcement
action.  Clean Water Act, sees. 309(a, b), and 404(n).
Procedures to be followed by FPA personnel for violations of
section 301 arising out of any form of noncompliance with
section 404 (including .violations of Corps-issued permits) are
set forth in the attached memorandum dated June 1, 1976, from
Assistant Administrator for Enforcement Stanley V?. Legro.

     3/  The Government has obtained restoration orders in
many cases.  See, e.g., U.S. v. Tull, 20 13.P..C. 2198 (E.D. Va.
1983); U.S.v. Carter, 18 E.R.C. 1810 (S.D. Pla. 1982); U.S. v.
Dradshaw, 541 p. Supp. 884 (D. Md.  1902); U.S. v. Kirkland, 518
F. Supp. 65 (S.D. Fla. 1981); U.S. v. Lee Wood Contracting,
Inc., 17 E.R.C. 1743 (E.D. Mich. 1961); U.S. v. Isla Verda
Investment Corp., 17 E.R.C. 1854 (D.P.R. 1980); U.S. v.
Keisman, 489 F. Supp. 1331 (M.D. Fla. 1980); and U.S. v.
Fleming Plantations, 12 E.R.C. 1705 (E.D. La. 1978).

     4/ Clean Water Act, sec. 309{a)(3).

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                             - 3 -
restoration or removal order.  Cases in which one or more of
the following elements are present are likely to be better
candidates for such orders.

        °  The presence of the dredged or fill material is
continuing to cause harm or present an identifiable risk oT
harm even though the discharge of the material has ceased.
A court has stated that the Clean Water Act is violated on each
day that a discharger allows illegal fill to remain.  United
States v. Tull, 20 E.R.C. 2198, 2212 (E.D. Va. 1933).  A court
may therefore hold that an administrative order requiring
removal of unlawful fill is an "order reguiring such person to
comply" with the Act, and thus authorized by section 309(a)(3).
If the discharoe has ceased, the Agency is better able to
present a convincing argument in support of a continuing
violation where the dredged or fill material continues to cause
harm or present an identifiable risk of harm.  Such harm may
result from pollutants which continue to leach into the water,
from continuing risks to navigation or risks of flood damage
associated with the fill, or continuing loss of habitat.

        o  The remedy reguired by the administrative order is
clearly reasonable.  The courts have set forth general criteria
for determining whether restoration is appropriate.  See,
e.g.. United States v. Weisman, 489 F. Supp. 1331, 1343 (M.D.
Fla. 1980); United States v. Bradshaw, 541 F. Supp. 884, 885
(D. Md. 1982); United States v. Hanna, 19 E.R.C. 1068, 1091
(D.S.C. 1983).  In summary, the courts conclude that fashioning
relief requires "a touch of eauity" and that restoration
should:  (1) confer maximum environmental benefits; (2) be
achievable as a practical matter; and (3) bear an equitable
relationship to the degree and kind of wrong that it is
intended to remedy.J5/  An administrative restoration order is
more likely to be upheld if it clearly satisfies those
criteria.*;/
     5>/  Analysis of the case law and criteria appears in
"Federal Wetlands Law: The Cases and the Problems", 8 Harv.
Env. L. Rev. 1, 46-52 (1984), and "Restoration as a Federal
Remedy for Illegal Dredging and Filling Operations", 32 Univ.
of Miami L. P.ev. 105 (1977).

     _6/  The order should include findings supporting the
conclusion that restoration is reasonable, eguitable and
achievable.  See, Clean Water Act, sec. 309(a)(5).  The order
may also recite that the objective of the Clean Water Act  "is
to restore and maintain the chemical, physical, and biological
integrity of the nation's waters."  Clean Water Act, sec.  101(a)

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                             - 4 -
        o  The Agency has accorded the discharger notice and
an opportunity to be heard prior to issuing the orderTCase
law suggests that a person receiving an enforcement order under
the Clean Water Act is not entitled to an administrative
hearing.  See, Montgomery Environmental Coalition, Inc. v.
E.P.A., 19 E.R.C. 1J69, 1170-71 (D.C. Cir. 1983); Parkview
Corp. v. Department of the Army, Corps of EngineersV Chicago
District, 455 F. Supp. 1350, 1352 (E.D. Wise. 1978).7/
However, courts have emphasized the importance of giving a
discharger adequate opportunity to present its contentions
regarding restoration.  See, e.g., Weiszmann v. District
Engineer, U.S. Army Corps of Engineers, 526 F.2d 1302, 1304
(5th Cir. 1976); United States v. Hanna, 19 E.R.C. 1068, 1091
(D.S.C. 1983); Parkview Corp. v. Department of the Army, Corps
of Engineers, Chicago District, 490 F. Supp. 127R, 1285 (E.D.
Wise. 1980).Accordingly, an administrative restoration order
is more likely to be upheld if the Agency advised the
discharger in writing of the proposed order, sought and
considered his comments before issuing the order, and
maintained a record of the comments and the basis for the
Agency's response to those comments.  The Corps' procedures for
conducting initial investigations, seeking further information
fron violators, and issuing restoration orders are set forth in
33 CFR Part 326.

     In order to obtain the discharger's views, the Region may
issue an order which, by its terms, does not take effect until
the persyn to whom it is issued has had an opportunity to
confer with the Agency concerning the alleged violation.  Cf.,
section 309(a)(4).  The Region may also issue a "show cause"
order directing the respondent to provide information that he
wishes the Agency to consider.  Cf., 33 C.F.R. 326.3(a)(3).
Alternatively, the Region may issue an order requiring the
discharger to cease further discharges and to report that it
has done so, and to contact the Agency concerning additional
information or measures which may be required to insure
compliance with the Act.

        o  The Agency issues its order in coordination with
the Corps of Engineers.   A Corps' order requiring the removal
of fill has withstood judicial challenge.  In Parkview Corp.
v. Department of the Army, Corps of Engineers,""Chicago District,
490 P. Supp. 1278, 1285 (E.D. Wise. 1930), the Corps ordered a
municipality to remove fill which had been placed in wetlands
without a permit.  The Court concluded that the Corps had
     2/  We are aware of no authority which requires the Agency
to hold a hearing prior to issuing an administrative order
requiring a violator to cease his violation.

-------
        inherent authority to issue such an order.   It stated  further
        that it could not find that the Corps acted  in an arbitrary or
        capricious manner in requiring the fill to be removed  in that
        particular case.  See, also, Leslie Salt Co. v. Froehlke,  403
        F. Supp. 1292 (N.D. Cal. 1974), modified on  other grounds,
        578 F.2d 742 (9th Cir. 1978) (a Corps' compliance order may do
        more than forbid future violations of the Clean Water  Act;
        affirmative relief, as well as prohibitory relief, may be
        ordered).  A restoration order issued jointly by the Agency
        and the Corps is therefore likely to be judicially enforced.
        I believe that the enforceability of a restoration order issued
        solely by the Agency will also be enhanced if it was issued
        after coordination with the Corps.
             The Agency may want to issue an order requiring restora-
        tion in situations where the referenced elements are not all
        present.  For example, the need for prompt removal of an
        obviously unlawful discharge may persuade the Agency that  it
        ought to issue an order prior to formal exchange of views  with
        the discharger or without exhaustive coordination with the
        Corps.  However, we recommend that the Regions target the  use
        of administrative removal or restoration orders under section
        309(a)(3) of the Act where some or all of the elements
        referenced above are present.
     Your staff may wish to direct questions regarding this
     r to

Attachment
w       matter to Gary Hess at FTS 475-8183.
,10 .                   J
to
.H co     cc: Colburn Cherney
7^         Allan Hirsch
£\         Margaret Strand
•* «         Jack Chowning
^3         William Jordan
° .^         Regional 404 Contacts
n m         Lance Wood
£x         Vicki O1 Hear a
J* JQ         Bernie Goode
•-H \         Mo Rees
i 7!         Marvin Moriarty
oo •*
\m
•-H 00
•§,7!          J*/ In addition, the Region should contact the Corps:   to
^-c     ensure that the discharge is unauthorized, either by nationwide
w »     or regional general permit or by an individual permit or
S "S     modification; to determine if the Corps has taken enforcement
°.«     action; to obtain the Corps' view regarding the existence of a
I- >     violation; and to confirm that the Corps has not advised the
(OK     discharger that the discharge is lawful.

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                                                                 VI.E.7.
Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning Regulation of Solid Waste Under
the Clean Water Act, dated January 23, 1986, effective date April 23, 1986.
                                                                      O

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                     Federal Register / Vol. 51. No. 50 / Friday. March 14, 1986 / Notices
                                                                      8871
DEPARTMENT OF DEFENSE

Department of the Army

ENVIRONMENTAL PROTECTION
AGENCY

Water Pollution Control; Memorandum
of Agreement on Solid Waste

February 28,1986.
AGENCY: Department of the Army, DoD
and Environmental Protection Agency.
ACTION: Notice of agreement.

SUMMARY: The Department of the Army
and the Environmental Protection
Agency (EPA) have entered into an
agreement to promote effective control
under the Clean Water Act (CWA) of
discharges of solid and semi-soh'd waste
materials discharged into the waters of
the United States for the purpose of
disposal of waste.
DATE: The Memorandum of Agreement
(MOA) was executed on January 23,
1988, and shall take effect on April 23,
1986. Written comments received on or
before June 23,1986, will be considered
in any future revision undertaken to the
Agreement. Written comments received
after June 23,1986, will be considered if
the timing of any future revision allows
for such consideration.
ADDRESS: Office of the Assistant
Secretary of the Army (Civil Works),
U.S. Department of the Army, Room
2E570, Washington, DC. 20310-0103; or
Office of Federal Activities (A-104), U.S.
Environmental Protection Agency, 401M
Street SW, Washington. DC, 20460.
FOR FURTHER INFORMATION CONTACT:
Morgan Rees, Assistant for Regulatory
  Affairs, Office of the Assistant
  Secretary of the Army (Civil Works),
  Department of the Army. Pentagon,
  Room 2E569. Washington, DC, 20310,
  (202)695-1370.
John Meagher, Director, Aquatic
  Resource Division, Office of Federal
  Activities (A-104), Environmental
  Protection Agency, Washington, DC,
  20460. (202) 382-5043.
SUPPLEMENTARY INFORMATION: Under
section 404 of the CWA, the Army Corps
of Engineers (and States approved by
EPA) issue permits for discharges of
dredged and fill material into waters of
the United States which comply with the
Act and applicable regulations. Under
section 402 of the CWA (the National
Pollutant Discharge Elimination System
or NPDES Program), EPA (and States
approved by EPA) issue permits for
discharges of all other pollutants into
waters of the United States, which
comply with the Act and applicable
regulations.
  The MOA was entered into to resolve
a difference (since 1980) between Army
and EPA over the appropriate CWA
program for regulating certain
discharges of solid wastes into waters of
the United States. The Army Corps of
Engineers' definition of "fill material"
provides that only those materials
discharged for the primary purpose of
replacing an aquatic area or of changing
the bottom elevation of a waterbody are
regulated under the Corps section 404
permit program. These discharges
include discharges of pollutants
intended to fill a regulated wetland to
create fast land for development. The
Corps definition excludes pollutants
discharged with the primary purpose to
dispose of waste which, under the Corps
definition, would be regulated under
section 402. Under EPA's definition of
"fill material." all such solid waste
discharges would be regulated under
section 404, regardless of the primary
purpose of the discharger. This
difference has complicated the
regulatory program for solid wastes
discharged into waters of the United
States.
  A February 1984 Settlement
Agreement in NWFv. Marsh, a case
brought by 16 environmental groups
against Army and EPA on a number of
section 404 matters required resolution
of the definition of fill issue by
September 1984. Army and EPA have
been working toward a resolution since
settlement. In Section 404 oversight
hearings conducted by the Senate
Environment and Public Works
Committee in 1985, EPA and Army
agreed to make every effort to resolve
the matter by the end of 1985.
  The agreement published today
provides an interim arrangement
between the agencies for controlling
discharges, In the longer term, EPA and
Army agree that consideration given to
the control of discharges of solid waste
both hi waters of the United States and
upland should take into account the
results of studies being implemented
under the 1984 Hazardous and Solid
Waste Amendments (HSWA) to the
Resource Conservation and Recovery
Act (RCRA). signed into law on
November 8.1984.
  The amendments to RCRA require
EPA, by November 8,1987,  to submit a
report to Congress determining whether
the RCRA Subtitle D Criteria (40 CFR
Part 257) are adequate to protect human
health and the environment from
groundwater contamination, and  •
recommending whether additional
authorities are needed to enforce the
Criteria. In addition, EPA must revise
the Criteria by March 31.1968, for solid
waste disposal facilities that may
 receive hazardous household waste or
 small quantity generator hazardous
 waste. At a minimum, these revisions
 should require not only groundwater
 monitoring as necessary to detect
 contamination, but should also establish
 criteria for the acceptable location of
 new or existing facilities, and provide
 for corrective action, as appropriate.
   The main focus of the interim
 arrangement is to ensure an effective
 enforcement  program under section 309
 of the CWA for controlling discharges of
 solid and semi-solid wastes into waters
 of the United States for the purpose of
 disposal of waste. When warranted.
 EPA will normally initiate section 309
 action to control such discharges. 11 it
 becomes necessary to determine
 whether section 402 or 404 applies to an
 ongoing or proposed discharge, the
 determination will be based upon
 criteria in the agreement, which provide.
 inter alia, for certain homogeneous
 wastes to be regulated under the section
 402 (NPDES) Program and certain
 heterogeneous wastes to be regulated
 under the section 404 Program.
   To promote regulatory consistency for
 those seeking to apply for authorization
 to discharge  these wastes into waters of
 the United States, the agreement
 encourages the use of the criteria in the
 MOA by prospective dischargers. It also
 provides a procedure for the agencies'
 consideration of any permit applications
 received, and calls upon the agencies to
 advise prospective dischargers
 regarding the probable unsuitabflity of
 certain kinds of wastes for discharge
 into waters of the United States.
   This agreement does not affect the
 regulatory requirements for materials
' discharged into waters of the United
 States for the primary purpose of
 replacing an aquatic area or of changing
 the bottom elevation of a water body.
 Discharges listed in the Corps definition
 of "discharge of fill material," 33 CFR
 323.2(1) remain subject to section 404
 even if they occur in association with
 discharges of wastes meeting the criteria
 in the agreement for section 402
 discharges.
   Unless extended by mutual
 agreement, the agreement will expire at
 such time as EPA has accomplished
 specified steps in its implementation of
 RCRA, at which time the results of the
 study of the  adequacy of the existing
 Subtitle D criteria and proposed
 revisions to the Subtitle D criteria  for
 solid waste disposal facilities,  including
 those that may receive hazardous
 household wastes and small quantity
 generator waste, will be known. In
 addition, data resulting from actions

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8872
Federal Register / Vol. SI. No. 50 / Friday.  March 14. M86 / Notices
                                                                                     Federal Regis
under the Interim agreement can be
considered at that time.
  The Department of Army and EPA
will ensure that decision* made
pursuant to this agreement meet the
requirements of the CWA and are
consistent with the Act'i objective to  .
restore and maintain the chemical.
physical and biological Integrity of the
Nation's wateri EPA and Army will
also take step* to ensure that discharges
of solid and semi-Mild wastes Into
waters of the United States are
evaluated consistently under the section
402 and 404 programs, and that this ~'
agreement will be Implemented In a
manner that imposes no unnecessary
burden on the regulated sector.

Text
January 17.1D6B.

MBIIMMSHHIIIII of Agremnful Between tfae
Assistant Administrators Ior Extend Afkta*
cod Water. VS. Environmental PratKttaa
Agency, and the Assistant Secretary of the
Aimy for Civil Work* Ceoceromj Regulatfoa
of Discbarj. of Solid Wast* Uaoar Ida deu
WatarAci

A. Batit of Agreement  •
  1. Whereas the Qua W«ter Acl has a Its
principal objective the requirement "to  .   •
restore tod maintain the 5*y"lTfl. physical
and biological Integrity of the Nation's
waten: and,
  I Whereas acctlon 301 of the dean Water
Act prohibit! the discharge of any pollutant
into water* of the United Slate* except In
compliance with aectioni 301.302.SOS. 307.
Jia 402. and 404 of the Act-and
  3. Whereat EPA. and States approved by
SPA. have been vetted with authority to
 >ermlt discharges of pollutants, other than
 tredged or fill material Into waten of the
 Jolted State* pursuant to section 402 of the
 :iean Water Act that eatufy the
 equirements of the Act and regulation*
 leveloped to administer this program
 Tomulgated in 40 CFR122-125: and
  4. Whereat the Army, end State* approved
 y EPA. have been vetted with authority to
 ermll discharge* of dredged or Mil material
 ito waten of the United State* that satisfy
 te requirement* of the Acl and regulations
 eveloped to administer thii program
 -omulgated In 33 CFR Part 320 el $eq. and 40
  FR Part 230 e< sec..-and
  S. Whereas the definition* of the term fill
  aterial" contained in the aforementioned
  gulalion* have created uncertainty a* to
  nether tection 402 of toe Acl or section 401
  intended to regulate discharge! of solid
  isle material! into waten of the United
  ites for the purpote of disposal of waits:
  d
  !. Whereat the Resource Conservation and
  sovery Act Amendment* of 1984  (RCRA)
  luire that certain steps be taken to improve
    control of solid waste; and
   . Whereas Interim control of such
   charges I* necessary to ensure sound
   nagemenl of the Nalion't water* and to
   •id complications in enforcement action*
   in against persona discharging pollutants
                    Into water* of the United Slates without a
                    permit;
                      8. The undersigned agencies do hereby
                    agree to use their respective abilities
                    cooperatively In en Interim program to
                    control the discharges of solid watte material
                    into waten of the United State*.

                    B, rnctdunt
                      1. When either agency Is aware of a
                    proposed or an unpennltted discharge of
                    solid waste Into waten of the United Slates.
                    the agency will notify the discharger of the
                    prohibition against such discharges as
                    provided in section 301 of the Clean Water
                    Act. Such notice la not a prerequisite for an
                    enforcement action by either agency.
                      2. Normally, if an activity In &1 above
                    warrant* action. EPA will Issue an
                    administrative order or file a complaint under
                    tection 300 to control the discharge.
                      8. In Issuing a notice of violation or
                    administrative order or in filing a complaint.
                    It la not necessary In order to demonstrate a
                    violation of section 30l(a) of the Clean Water
                    Act to Identify which permit a permiUest
                    discharge should have had. However, after
                    an enforcement action has commenced, a
                    question may be raited by the court
                    discharger, or other party as to whether a
                    particular discharge having the effect of
                    replacing an aquatic area with dry land or of
                    rJi.nginfl UK bottom elavatioo of a water
                    body maeta the primary purpose test for "fill
                    material" In the Corps definition (33 CFR
                    323.2(k)). For example, such question may be
                    raited In connection with a defense, or It may
                    be relevant to the relief to be granted or the
                    terms of a settlement.
                      4. To avoid any Impediment to prompt
                    resolution of the enforcement action. If such a
                    question arises, a discharge will normally be
                    considered to meet the definition of "fill
                    material" In 33 CFR 32&2(k) for each specific
                    case by consideration of the following
                    {actors:
                      a. The discharge hat at its primary purpose
                    or hat at one principle purpote of multi-
                    purpose! to replace a portion of the waten of
                    the United States with dry land or  to raise the
                    bottom elevation.
                      b. The discharge results from activities
                    such at read construction or other activities
                    where the material to be discharged is
                    generally Identified with construction-type
                    activities.
                      c. A principal effect of the discharge Is
                    physical lost or physical modification of
                    waten of the United States. Including
                    smothering of aquatic life or habitat.
                      d. The discharge is heterogeneous in nature
                    and of the type normally associated with
                    sanitary landfill discharges.
                      5. On the other hand. In the situation in
                    paragraph BJ.. a pollutant (other than
                    dredged material) will normally be
                    considered by EPA and the Corp* to be
                    subject to section 402 If 11 is a discharge In
                    liquid, semi-liquid, or suspended form or If II
                    I* a discharge of solid material of a
                    homogeneous nature normally associated
                    with single industry wades, and from a fixed
                    conveyance, or if trucked, from a single site
                    and tet of known processes. These material*
                    include placer mining wastes, phosphate
                    mining wastes, titanium mining watte*, sand
and gravel waste*, fly ash. and drilling mud*.
At appropriate. EPA and the Corps will
Identify additional such materials.
  6. While this document addresses
enforcement case*, prospective dischargers
who apply for a permil will be encouraged to
use the above criteria for purpote* of project
P»*xi<\»]l If a prospective discharger applies
for a tection 404 permit based on the
considerations In paragraph 0.4. or for a
Section 402 permit bated on the
considerations in paragraph B£>. (he
application will normally be accepted for
processing. If a prospective discharger
applies for a 404 permil for discharge of
material* that might be hazardous, he shall
be advised that discharge™ of wastes to
waters of the United Slates that are
hazardous under RCRA are unlikely to
comply with the tection 404|b)(l) Guidelines.
To facilitate processing of application* for
penni It under sections 402 or 404 for
discharges covered by this agreement, an
application for such discharge shall not be
accepted for processing until the applicant
baa provided a determination signed by the
State or appropriate interstate agency that
the proposed discharge will comply with
applicable provisions of Slate law Including
applicable water quality alandardt. or
evidence of waiver by the Stale or Interstate
agency. As mandated under the Clean Water
Act, neither a 402 nor a 404 permil will be
.toned for a discharge of toxic pollutant* In
toxic amounts. Prospective applicants for
section 402 permits thall be advised thai the
proposed discharge will be evaluated for
compliance with the Act In particular with
sections lOlfa). 301.303.304.307.402. and 409
of the Act

C Determination of Permit
   1. In enforcement cases, when a question
arises under paragraph BJ as to which permit
would be required for a permlllets discharge.
the enforcing agency will determine whether
the criteria in paragraph B.4 or B.5. if either.
have been satisfied, with concurrence from
the other agency. If the enforcing agency
concludes that neither aet of the criteria has
been met and additional analysis is required
to determine which Section applies, or if the
necessary concurrence is not forthcoming
promptly, the Division Engineer and the
Regional Administrator (or detignaea) will
consult and determine which permil program
la applicable.
   2. In non-enforcement situations, the
agency receiving an application shall
determine whether II meets the criteria In
paragraphs 4 or S. at the case may be. If the
agency determines that the criteria applicable
to its permit program have not been met. It
will ask the other agency to determine
whether the criteria for the letter's permit
program have  been met.
   If neither agency determines that the
criteria for its permil program have been met.
the Division Engineer and the RA (or their
designers) shall consult and determine which
agency shall process the application in
question.

D. Publication in the "Federal Register"
   Since this Memorandum of Agreement
clarifies the definition of fill material with
respect to discharges of kolid waste inlu
waters of the United States, the parties In tl
agreement shall jointly publish II In the
Federal Register within 4.1 days after II hag
been signed.

E. Effective Datet
  1. This agreement shall lake effect 00 day:
after the dale of the last signature below am
will continue in effect until modified or
revoked by agreement of both parlies, or
revoked by either party alone upon six
months written notice.
  2. This agreement automatically expire* ai
such lima aa EPA has submitted it* Report ti
Congress on the Results of Study of the
Adequacy of the Existing Subtitle D Criteria
and has published a Notice of Proposed
Revisions to the Subtitle D Criteria In the
Federal Register, unless the agencies
mutually agree that extension of this
. agreement la needed.
  Dated: January 22,1986
 Jennifer). Manson.
AtsialantiHJministraior for External Affairs.
 US. Environmental Protection Agency.

  Dated: January 23.1836.
Larry Jensen,
AtsiitantAdminiitraurfor Water, VS.
Envirorarnitol Protection Agency,
  Dated: January 17.1988.
 Robert K. Dawson.
 Aisiitonr Secretary of the Army/M
 Wont*/
   Dated: March 11, 1MB.
 Jennifer J. Manson,
 Assistant Administrator for External Affairs.
 US. Environmental Pmtfftion Agency.
 Lssvraoce J. Jensen*
 Asiistant Administrator for Water. U.S.
 Environmental Protection Agrnry.
 Robert K. Dawtoa.
 Assistant Secretary of the Army for Civil
 Works, Department of die Army.
 |FR Doc. SB-Mil Filud 3-13-66; 8.45 am)
          DttT«
 Intent To Prepare • Draft
 Supplemental Environmental Impact
 Statement (SEIS) for the East-bank
 Barrier Levee Feature of trie New
 Orleans to Venice, Louisiana,
 Hurricane Protection Protect

 AGENCY:  New Orleans District, Army
 Corps of Engineers. DOD.
 ACTION: Notice of Inter)! to prnpnr<> a
 draft SEIS.	

 SUMMARY:

 1. Proposed Action
    In 1962, Pub. L. 874. 87th Congress.
 authorized the project "Mississippi
 River Delta el and below New Orleans
 to Venice, Louisiana." The projecl
 would prevent tidal damages along the
 Mississippi River in lowei Plaqueimnu-s
  Parish, Louisiana, by increasing ihK

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                                                  VI.E.8
"Memorandum and Agreement between the Department of the Army
and the  Environmental Protection Agency  Concerning Federal
Enforcement of  the Section 404  Program of the  Clean Water
Act,"  dated January  19,  1989,  with collateral agreements
concerning  previously-issued  Corps   permits,   geographic
jurisdiction,  and Section 404(f)  exemption issues.

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-?•.',"

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                       MEMORANDUM OF AGREEMENT
               BETWEEN THE DEPARTMENT OF THE ARMY AND         -^   ^
          THE ENVIRONMENTAL PROTECTION AGENCY CONCERNING
          FEDERAL ENFORCEMENT FOR THE SECTION 404 PROGRAM
                          OF THE CLEAN WATER ACT
 I.  PURPOSE AND SCOPE

    The United States Department of the Army (Army) and the United States
 Environmental Protection Agency (EPA) hereby establish policy and procedures
 pursuant to which they will undertake federal enforcement of the dredged and fill
 material permit requirements ("Section 404 program") of the Clean Water Act (CWA).
 The U.S Army Corps of Engineers (Corps) and EPA have enforcement authorities for
 the- Section 404 program, as specified in Sections 301(a), 308, 309, 404(n), and 404(s) of
 the CWA.  In addition,  the 1987 Amendments to the CWA (the Water Quality Act of
 1987) provide new administrative penalty authority under Section 309(g) for violations
 of the Section 404 program. For purposes of effective administration of these statutory
 authorities, this Memorandum of Agreement (MOA) sets fonh an appropriate
 allocation of enforcement responsibilities between EPA and the Corps. The prime goal
 of the MOA is to strengthen the Section 404 enforcement program by using the
 expertise, resources and initiative of both agencies in a manner which is effective and
 efficient in achieving the goals of the CWA.
II.  POLICY.
                                     *•     »
    A.  General  It shall be the policy of the Army and EPA to maintain the integrity
of the program through federal enforcement of Section 404 requirements. The basic
premise of this effort is to establish a framework for effective Section 404 enforcement
with very little overlap.  EPA will conduct initial on-site investigations when it is
efficient with respect to available time, resources and/or expenditures, and use its
authorities as provided in this agreement.  In the majority of enforcement cases the
Corps, because it has more field resources, will conduct initial investigations and use its
authorities aj'provided in this agreement. This will allow each agency to play a role in
enforcement which concentrates its resources in those areas for which its authorities and
expertise are best suited. The Corps and EPA are encouraged to consult with each
other on cases involving novel or important legal issues and/or technical situations.
Assistance from the U.S. Fish and Wildlife Service (FWS), the National Marine
Fisheries Service (NMFS) and other federal, state, tribal and local agencies will be
sought and accepted when appropriate.

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     B.  Geographic Jurisdictional Determinations.  Geographic jurisdictional
 determinations for a specific case will be made by the investigating agency. If asked for
 an oral decision, the investigator will caution that oral statements regarding jurisdiction
 are not an offici j agency determination.  Eac' ager 7 will advise the oth'T of any
 problem trends that they become aware of through case by.case determinations and
 initiate interagency discussions or other action to address the issue. (Note: Geographic
 jurisdictional determinations for "special case" situations and interpretation of Section
 404(f) exemptions for "special Section 404(f) matters"  will be handled in accordance
 with the Memorandum of Agreement Between the Department of the Army and the
 Environmental Protection Agency Concerning the Determination of the Geographic
 Jurisdiction of the Section 404 Program and the Application of the Exemptions Under
 Section 404(f) of the Clean Water Act.)                    .
                                       %
     C Violation Determinations. The investigating agency shall be responsible for
 violation determinations, for example, the need for a permit.  Each agency will advise
 the  other of any problem trends that they become aware of through' case by case
 determinations and initiate interagency discussions or other action to address the issue.

     D. Lead Enforcement Agency.  The Corps will act as the lead enforcement agency
 for all violations  of Corps-issued permits.  The Corps will also act as the  lead
 enforcement agency for. unpermitted discharge violations which do not meet the criteria
 for forwarding to EPA, as listed in Section III.D. of this  MOA. EPA will act as the
 lead enforcement agency on all unpermitted discharge violations which meet those
 criteria.  The lead enforcement agency will complete the enforcement action once an
 investigation has  established that a violation exists.  A  lead enforcement agency decision
 with regard to any issue in a  particular case, including  c.  decision that no  enforcement
 action be taken, is final for that case. This provision does not preclude the lead
 enforcement agency  from referring the matter to the other agency under  Sections
 III.D.2 and III.D.4 of this MOA.

     E.  Environmental Protection Measures.  It is the policy of both agencies to avoid
permanent environmental harm caused by the violator's-activities by requiring remedial
actions or ordering removal and restoration.  In those cases where a complete
remedy/removal is not appropriate, the violator may be required, in addition to other
legal remedies which are appropriate (e.g., payment of administrative penalties) to
provide compensatory mitigation to compensate for the harm caused by such illegal
actions.  Such compensatory mitigation activities shall be placed as an enforceable
requirement upon a  violator as authorized by law.
III.  PROCEDURES

    A.  Flow chan. The attached flow chart provides an outline of the procedures

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                                                                      •
 EPA and the Corps will follow in enforcement cases involving unpermitted discharges.
 The procedures in (B.), (G), (D.), (E.) and (F.) below are in a seqvence in which they
 could occur.  However, these procedures may be combined in an effort to expedite the
 enforcement process.

     B.  Investigation.  EPA, if it so requests and upon prior notification to the Corps,
 will be the investigating agency for unpermitted activities occurring in specially defined
 geographic areas (e.g., a particular wetland type, areas declared a "special case" within
 the meaning of the Memorandum of Agreement Between the Department of the Army
 and the Environmental Protection Agency Concerning the Determination of the
 Geographic Jurisdiction of the Section 404 Program and the Application of the
 Exemptions Under Section  404(f) of the Clean Water Act). Timing of investigations
 will be commensurate with  agency resources and potential environmental damage. To
 reduce the potential for duplicative federal*effort, each agency should verify prior to
 initiating an investigation  that the other agency does not intend or has not already
 begun an investigation of the same reported violation.  If a violation exists, a field
 investigation report will be prepared which at a minimum provides a detailed
 description of the illegal activity, the existing environmental setting, initial view on
 potential impacts and a recommendation on the  need for initial corrective measures.
 Both agencies agree  that investigations must be conducted in a professional, legal
 manner that will not prejudice future enforcement action on the case.  Investigation
 reports will be provided to the agency selected as the lead on the case.

     C  Immediate Enforcement Action.  The investigating or lead enforcement agency
 should inform the responsible panics of the violation and inform them that all illegal
 activity should cease  pending further federal action. A ratification letter or
 administrative order to that effect will be sent in the  most expeditious  manner.  If time
 allows, an order for initial corrective measures may be included with the notification
 letter or administrative order..  Also, if time.allows, input from cither federal, state,
 tribal and local agencies will be considered when determining the need for. such initial
 corrective measures.  In all  cases the Corps will provide EPA a copy of its violation
 letters and EPA will provide the Corps copies .of its §308 letters and/or §309
 administrative orders. These communications will include language requesting the other
 agency's views and recommendations on the case. The violator will also be notified that
 the other agency has been contacted.

    D.  Leod'Enforcement Agency Selection.  Using the following criteria, the
investigating agency will determine which agency will  complete action on the
enforcement case:

       1.     EPA will act as the lead enforcement agency when an unpermitted activity
            . involves the following:

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              a.  Repeat Violator(s);
              b.  Flagrant Vjolation(s);
              c.  Where EPA requests a class of cases or a particular case; or
              
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 IV. RELATED MATTERS

     A.  Interagency Agreements.  The Army and -EPA are encouraged to enter into
 interagency agreements with other federal, state, tribal  and local agencies  which will
 provide assistLice to the Corps and EPA in pursuit of  Section 404 enforcement
 activities.  For example, the preliminary enforcement site investigations or post-case
 monitoring activities required to ensure compliance with any enforcement  order can be
 delegated  to third parties (e.g., FWS) who agree to assist Corps/EPA in compliance
 efforts.  However, only the Corps or EPA may make a violation determination and/or
 pursue an appropriate enforcement response based upon information received from a
 third party.

     B.  Corps/EPA Field Agreements.  Corps Division or District offices and their
 respective  EPA Regional offices are encouraged to enter into field level agreements to
 more specifically implement the provisions of this MOA.

     C. Data Information Exchange.  Data which would enhance either agency's
 enforcement efforts should be exchanged between  the Corps and EPA where available.
 At a minimum, each agency shall begin to develop a computerized data list of persons
 receiving ATF permits or that have been subject to a Section 404 enforcement action
 subsequent to February 4, 1987 (enactment date of the 1987 Clean Water Act
 Amendments) in order to provide historical compliance data on persons found to have
 illegally discharged.  Such information will help in an administrative penalty action to
 evaluate the statutory factor concerning history of a violator and will help to determine
 whether pursuit of a criminal action is appropriate.
V.  GENERAL
                                        /•     *
    A.  The procedures and responsibilities of each agency specified in this MOA may
be delegated to subordinates consistent with established agency procedures.

    B.  The policy and procedures contained-within this MOA do not create any rights,
either substantive or procedural, enforceable by any party regarding an enforcement
action brought by either agency or by the  U.S.  Deviation or variance  from these MOA
procedures win not constitute a defense for violators or others concerned with any
Section 404 enforcement action.

    C.  Nothing in this document is intended to diminish, modify or otherwise affect
the statutory or regulatory authorities of either agency. All formal guidance interpreting
this MOA shall be issued jointly.

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    D.  This agreement shall take effect 60 days after the date of the last signature
below and will continue in effect for five years unless extended, modified or revoked by
agreement of both panics, or revoked by either party alone upon six months written
notice, prior to that time.
                                           4
                                                           w.
                         (Date)
   istant Secretary of
the Army (Civil Works)
Rebecca W. Hammer         (Date)
Acting Assistant Administrator
for Water
U.S. Environmental Protection Agency

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                CORPS/EPA ENFORCEMENT PROCEDURES
             FOR SECTION 404 UNPERtflTTED VIOLATIONS*
                     VIOLATION  REPORTED TO OR
                   DETECTED BY  THE CORPS OR EPA
            NO
     NO
  VIOLATION
Yes
                     WORK INVOLVES I
            A. A WATER OF THE U.S. AND
            B. A SECTION 404 DISCHARGE AND
            C. AN UNPERMITTED ACTIVITY AND
            D. AN ACTIVITY NOT EXEMPTED
               BY SECTION 404(f)
                             YES
                      INVESTIGATION**
                 ACTIVITY REQUIRES:
                 A. IMMEDIATE ACTION OR
                 B. INITIAL CORRECTIVE MEASURES
                                            YES
                             NO
                             _,,
                                     INVESTIGATING AGENCY
                                     ISSUES C&D/AO (copy
                                     to other agency)
      LEAD AGENCY SELECTION***
ACTIVITY INVOLVES ONE OP THE FOLLOWING:
A. REPEAT VIOLATOR
B. FLAGRANT VIOLATOR(i.e., obvious prior
   knowledge)
C. EPA REQUEST THE CASE OR
D. CORPS RECOMMENDS ADMINISTRATIVE PENALTY
NO
           • EPA FOLLOWS CWA
          SECTION 309 PROCEDURES
                                                  1
                                       CORPS FOLLOWS
                                   33 CFR 326 PROCEDURES
*    Enforcement procedures for permit condition violation cases
     are set forth at Part III.D.3. and III.D.4.
**   Procedures for investigating unpermitted activity cases are
     set forth at Part III.B.
***  Examples of situations in which "C" & "D" might arise
     include cases which are important due to deterrent value,
   .  due to the violation occurring in a critical priority
     resource or in an advanced identification area, involving
     an uncooperative individual, etc.

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                          DEPARTMENT OF THE ARMY


           UWTED STATES ENVIRONMENTAL PROTECTION \GENCY
 SUBJECT: Section 404 Enforcement Memorandum of Agreement (MOA)
            Procedures Regarding the Applicability of Previously-Issued
            Corps Permits

 1.  The MOA Between the Department of the Army and the Environmental Protection
 Agency (EPA) Concerning Federal Enforcement for the Section 404 Program of the
 Clean Water Act (Section 404 Enforcement MOA) establishes policy and procedures
 pursuant to which EPA and Army will undertake federal enforcement of the dredged
 and fill material permit requirements of the Gean Water Act

 2.  For purposes of effective administration of the statutory enforcement authorities of
 both EPA and the U.S. Army Corps of Engineers (Corps), the MOA sets forth an
 appropriate allocation of enforcement responsibilities between EPA and the Corps.
 Given that the Corps is the federal permit-issuing authority, for purposes of
 implementation of the provisions of the Section 404 Enforcement MOA the Corps will
 be responsible for determining whether an alleged illegal discharge of dredged or fill
 material is  authorized  under an individual or general permit

 3. When EPA becomes aware of an alleged illegal disc*arge, it will contact the
 appropriate Corps district and request a determination as  to whether the discharge is
 authorized  by an individual or general permit
                                      «•      *

 4. A Corps determination that the discharge is  authorized by an individual or general
 permit represents a final enforcement decision for that particular case.  Likewise, a
 Corps determination that the discharge is not authorized by an individual or general
 permit (i.e., it is an unpermitted  discharge) is- final for that particular case.
            • »-_               .       .       .
 5. In orderjMqvhote effective and expeditious action against possible illegal
 discharge*, I^Ufpi district upon request from EPA is responsible for providing a
 determinatttlBbfai two working days in those  cases where EPA provides the Corps
with suffiaewSofmation to make this determination in the office.  However, if
sufficient information is not available to the Corps so that additional investigation by
the Corps is needed before it is  able to respond to the EPA request, the Corps will
provide a determination to EPA within 10 working days.  If the Corps does not provide
a determination to EPA within the applicable time frame, EPA may continue to
investigate the  case and determine whether the  activity constitutes an unauthorized
discharge, and  the EPA determination will be final for that particular case.

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6. Notwithstanding the above provisions, in situations where an alleged illegal discharge
is ongoing and EPA reasonably believes that such discharge is not authorized, EPA may
take immediate enforcement action against the discharger when necessary to minimize
impacts to the environment  However,* EPA wiM also contact the appropriate Corps
district and request a determination as to whether the discharge is authorized by an
individual or general permit  A subsequent determination by the Corps, pursuant to
paragraph five above, that the discharge is authorized represents a final enforcement
decision for  that particular case.

7. This guidance shall  remain in effect for as long as the Section 404 Enforcement
MOA is in effect, unless revisions to or revocation of this guidance is mutually agreed
to by the two signatory agencies.
Robert WPfte (/
Assistant secretary of
the Army (Civil Works)
                         (Date)
Rebecca W. Hanmer
Acting Assistant Administrator
for Water
U.S. Environmental Protection Agency

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                      MEMORANDUM OF AGREEMENT
                BETWEEN THE DEPARTMENT OP THE ARMY
              AND THE ENVIRONMENTAL PROTECTION AGENCY
                CONCERNING THE DETERMINATION  OP THE
        GEOGRAPHIC JURISDICTION OP THE SECTION 404 PROGRAM
               AND THE APPLICATION OP  THE EXEMPTIONS
            ONDBR SECTION 404(f)  OP THE CLEAN WATER ACT
 I.    PDRPOSE  AND SCOPE.

      The  United  States  Department  of  the  Army  (Army)  and the
 United   States   Environmental  Protection  Agency   (EPA)  hereby
 establish  the policy and procedures  pursuant to which they will
 determine  the geographic  jurisdictional scope  of  waters  of the
 United  States for purposes of section 404 and the application of
 the exemptions under section  404(f) of the Clean Water Act  (CWA).

      The Attorney-General  of the United States  issued an opinion
 on   September   5,  1979,    that   the   Administrator   of  EPA
 (Administrator)  has  the  ultimate authority under  the CWA  to
 determine  the  geographic   jurisdictional  scope  of  section 404
 waters  of  the United  States  and  the  application  of the section
 404(f)  exemptions.   Pursuant to  this authority  and for purposes
 and effective administration  of the 404 program, this Memorandum
 of  Agreement  (MOA)  sets  forth  an  appropriate   allocation  of
 responsibilities  between  the  EPA and  the   U.S.  Army  Corps  of
 Engineers  (Corps)  to  determine" geographic   jurisdiction  of the
 section 404 program and  the applicability of  the exemptions  under
 section 404(f) of  the CWA.

 II.  POLICY.

     It shall be the policy of  the Army and  EPA for the Corps to
 continue'to perform the  majority of the  geographic  jurisdictional
determination*  and determinations of  the  applicability  of the
exemptions  under section  404(f)   as  part of the Corps  role  in
administering the section  404 regulatory program.   It shall also
be the  policy of the Army  and EPA  that the Corps shall  fully
 implement  EPA guidance  on  determining  the  geographic extent of
section  404   jurisdiction   and   applicability   of  the   404(f)
exemptions.'

     Case-specific  determinations  made  pursuant to the terms of
 this  MOA will  be binding  on  the Government and  represent the
Government's  position   in   any   subsequent   Federal  action  or
 litigation  regarding the case.   In making its determinations/ the

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 Corps  will   implement  and adhere  to  the    "Federal  Manual  for
 tdentii/i1 j   as.-.d   Delineating   Jurisdictional   wetlands,"   EPA
 guidance on isolated waters,  and other guidance,  interpretations,
 and  regulations  issued  by   EPA   to   clarify  EPA  positions   on
 geographic 'jurisdiction and exemptions.  All  future  programmatic
 guidance,   interpretations,    and   regulations   on    geographic
 jurisdiction, and  exemptions  shall  be  developed  by  EPA  with  input
 from the Corps; however,  EPA will  be  considered the lead  agency
 and will make the  final decision if the agencies  disagree.

 HI. DEPIMITIOMS.

      A.  Special Case.   A special  case  is  a circumstance  where
 EPA makes  the  final  determination of  the  geographic  Jurisdic-
 tional   scope  of  waters of  the United  States   for  purposes   of
 section 404.

          Special cases may be  designated in generic or project-
 specific  situations  where   significant  issues  or   technical
 difficulties    are   anticipated   or    exist,    concerning    the
 determination of the  geographic Jurisdictional scope  of waters  of
 the  United   States  for  purposes  of   section  404   and   where
 clarifying • guidance  is  or   is likely  to   be  needed.    Generic
 special cases  will be designated Jy easily identifiable political
 or  geographic  subdivisions  such   as   township,  county, parish,
 state,  EPA  region,  or  Corps  division  or  district.    EPA will
 ensure  that  generic  special  cases are  marked  on maps  or some
 other   clear  format  and  provided  to  the   appropriate District
 Engineer  (OE).

     B.   Special  404(f)  Matters.   A special 404(f)  matter is a
 circumstance  where  EPA  makes  the 'final  determination  of  the
 applicability  of exemptions under section 404(f)  of the CWA.

          A special 404 (f)  matter may be  designated in  generic  or
 project-specific situations where significant issues  or technical
 difficulties    are   anticipated '  or    exist,    concerning    the
 applicability   of  exemptions   under  section  404(f),  and   where
 clarifying  guidance  is,  or  is likely,  to  be needed.   Generic
 special  404(f)  matters will be  designated by easily  identifiable
 political «t geographic subdivisions   such  as  township, county,
 parish,  state,  EPA region, or  Corps  division or district and  by
 specific  404(f) exemption  (e.g., 404(f) (1)(A)).

 IV.  PROCEDPRES.

     A.   Regional  Lists.  Each  regional  administrator  (RA)  shall
maintain  a  regional list of current designated special  cases  and
 special    404(f)    matters   within    each   region,    including
documentation,   if  appropriate,   that  there   are  no  current
 designated special  cases or special 404(f) matters  in the region.

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                               - 3 -
 The  RA  shall create an initial  regional  list  and  transmit  it  to
 the  appropriate  DE within  30  days  of   the  date  of  the  last
 signature  on this MOA.   In  order  to be  eligible  for  a  regional
 list, tl.e designated special cases* and special 404(f) matter must
 be approved  by the Administrator.  (NOTE:   Those geographic areas
 designated   as   current   special  cases   pursuant  to  the  1980
 Memorandum  of Understanding  on Geographic  Jurisdiction  of  the
 Section  404  Program,   may  be  incorporated  into  the   initial
 regional lists  without additional approval  by  the  Administrator
 based on  township,  county,  parish,   state or other  appropriate
 designation,  as  described in paragraph III. A.  of  this  MOA  but
 will no longer be designated by forest cover type.)

      B.   Changes to  the Regional  Lists.   Changes  to the  regional
'lists  shall  be  proposed  by  the  RA   and  approved   by  the
 Administrator and  may  include  additions   to,  amendments  to,  or
 deletions   from   the  regional lists.   When  the  RA proposes  an
 addition,   amendment,  or   deletion  to the  regional  list,  the  RA
 shall forward  the proposal  to EPA  Headquarters  for review  and
 approval.     When  the  RA  proposes an addition or  amendment  in-
 writing  or by phone  to the appropriate Corps DE, the Corps will.
 not  make a  final geographic jurisdictional  determination within-*
 the  proposed  special case area  for a period of ten working days
 from  the date of the RA^  notification.  The  Corps  may proceed  to
 make  determinations  in the proposed  special case area after  the
 ten  day  period if it has  not been  provided final  notification  of
 EPA  Headquarters  approval  of the RAfs  proposed changes.  Deletions
 to  the  regional  list  do   not  become effective until  a  revised
 regional  list, approved by EPA Headquarters, is provided  to  the
 appropriate DE.

      C.  Project   Reviews.   The"  DE' shall  review  section  404
 preapplication inquiries,  permit applications, and  other  matters
 brought  to  his attention,  which  involve the  discharge  of  dredged
 or fill material  into waters of  the United States  to determine  if
 a  current  designated special  case or special  404(f)  matter  is
 involved.         •                 •

          Uk  Special Cases/Special 404(f) Matters.

            .-  For those projects  involving a current  designated
 special  ca*3* or special 404(f) matter, the DE  shall request that
 the  RA  oak*  the final determination of the geographic  juris-
 dictional  scope  of  waters of the  United  States for  purposes  of
 section  404  or  applicability  of  the exemptions   under  section
 404(f).   The  RA  shall  make  the final determination, subject  to
 discretionary review by EPA Headquarters,  and  transmit it to the
 DE, and  to  the applicant/inquirer.

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          (2)   Non-Special  Cases/Non-Special  404(f)  Matters

               For   those   projects   not   involving   a  current
 designated  special case or special 404(f)  matter,  the OE shall
 make final  determinations and  communicate  those  determinations
 without a requirement  for  prior  consultation with EPA.

      D.  Determination   of  Special  Cases   or   Special  404 (f)
 Matters.   When the  special case  or special 404(f) matter has been
 designated  on  a  project-specific basis,  issuance of  the  final
 determination  by the  RA will  serve as  guidance relevant  to the
 specific  facts of  each particular  situation,  and will terminate
 the  special case or special 404(f)  matter designation.  When the
 special case or special 404(f)  matter  has  been designated  on a
 generic basis,  EPA Headquarters will   develop,  in consultation
 with  Army,  relevant  programmatic  guidance  for  determining  the
 geographic  jurisdictional   scope  of  waters  of  the  United  States
 for  the purpose of  section 404 or the applicability of exemptions
 under  section  404(f).   Special  cases  and special 404(f) matters
 designated  on  a  generic   basis  remain  in  effect  until   (1)  a
 deletion  from  the regional  list  is  proposed   and  processed
 according  to paragraph IV-B of this MOA, or (2) EPA Headquarters
 issues  programmatic guidance that  addresses the relevant  issues
 and  specifically  deletes   the  special  case  or special  404(f)
 matter  from the regional list(s), whichever  occurs  first.

     E.   Uncertainties  Regarding  Special   Cases/Special  404(f)
 Matters.  Should any uncertainties arise in  determining whether a
 particular  action  involves a current designated special case or
 special  404 (f)  matter, the OE  s>hall • consult with  the  RA.   Upon
 completion  of  the  consultation,  the   RA  will  make  the  final
 determination  as   to  whether  the  action  involves  a  current
 designated special  case or  special 404(f) matter.

     P.  Compliance  Tracking.    .In  order  to  track  the  OE's
 compliance  with  EPA  guidance,  the  DE  shall   make  his  files
 available  foe  inspection   by   the  RA   at  the  district  office,
 including  field  notes  and  data  sheets  utilized in making  final
determination*  as  well any photographs  of  the  site  that  may be
available.   Copies of final geographic jurisdictional determin-
ations  will be provided  to the  RA upon  request at no cost to EPA
unless  the  sample size   exceeds  10  percent  of  the  number  of
determinations  for  the sample  period.   Copies  in excess of a 10
percent sample  will be provided  at  EPA  expense.  To ensure that
EPA is  aware of determinations being made for which notification
 is not  forwarded  through   the  public  notice  process,  the  Corps
will  provide copies  to  EPA of   all  final  determinations  of  no
geographic  jurisdiction and   all final determinations that  an
exemption under Section  404(f)  is applicable.    Should EPA become
 awara  of  any  problem  trends   with  the DE's  implementation  of
guidance,  EPA  shall initiate  interagency  discussions to address
 the issue.                                   •     .

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                               - 5 -
 V.   RELATED ACTIONS.

      A.  Enforcement Situations.   For  those'investigations made
 pursuant ™tS  the  1989   Enforcement  MOA  between  Army  and  EPA
 concerning- Federal  enforcement  of  section 404  of the CWA, which
 involve areas that  are  current designated special cases, the RA
 shall make  the  final determination  of  the geographic  jurisdic-
 tional  scope  of  waters of  the United  States  for  purposes  of
 section 404.  The RA's  determination is subject  to discretionary
 review by  EPA Headquarters,  and  will  be  binding regardless  of
 which agency  is  subsequently designated  lead  enforcement agency
 pursuant to the  1989  Enforcement  MOA.   For  those investioitions
 not   involving  special   cases,  the  agencies  will  proceed  in
 accordance  with  the  provisions of  the 1989  Enforcement MOA.

          For  those   investigations  made  pursuant  to   the  1989
 Enforcement  MOA   between   Army  and  EPA  concerning  Federal
 enforcement of  section   404  of the  CWA,  which  involve current
 designated  special  404(f) matters,  the  RA  shall make  the final
 determination  of  the   applicability of   the  exemptions  under
 section  404 (f).   The RA  determination is subject  to discretionary
 review by  EPA Headquarters,  and is  binding  regardless  of which
 agency  is   subsequently  designated  lead  enforcement  agency
 pursuant  to the 1989 Enforcement  MOA.   For those investigations
 not  involving  special 404(f)  matters, the agencies  will proceed
 in accordance  with  the provisions of  the 1989 Enforcement MOA.

      B.   Advanced  Identification.     EPA  may elect  to  make  the
 final  determination  of   the  geographic  jurisdictional  scope  of
 waters  of the  United States  for purposes  of section 404, *as part
 of  the advanced  identification of disposal sites under  40  CFR
 230.80,  subject  to discretionary review by EPA Headquarters, and
 regardless  of  whether the areas involved  are  current designated
 special  cases, unless the DE has already made  a  final geographic
 jurisdictional  determination.    Any determinations  under  this
 section  shall  be  completed   in  accordance with  paragraph  IV of
 this MOA.

     C.   4tt»fc)  Actions.     EPA  may  elect  to  make  the  final
determination  of  the geographic  jurisdictional  scope of  waters of
 the United  States for purposes of section  404(c)  of the  CWA.

VI.  GENERAL PROVISIONS.

     A.  All final  determinations  must be  in writing and signed
by either the  DE  or  RA.   Final determination  of the DE or RA made
pursuant  to this MOA or  the  1980  Memorandum of  Understanding on
Geographic  Jurisdiction  of   the Section  404  Program,  will  be
binding on  the Government and represent the Government's position
in any subsequent  Federal  action or litigation  concerning that
 final  determination.

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      8.   The   procedures   and   responsibilities  of  each  agencv
 specified  in   this   MOA   may   be   delegated   to  appropriate
 subordinates   consistent  with   established  agency  procedure.
 Headquarters  procedures and  responsibilities  specified in  the MOA
 may only  be delegated within headquarters.

      C.    Nothing  in  this  document  is  intended  to  diminish,
 modify,   or   otherwise   affect  the  statutory   or  regulatory
 authorities of either agency*
                »             '.
      D.   This  agreement  shall  take  effect  and   supercede  the
 April 23,   1980,   Memorandum   of   Understanding   on  Geographic
 Jurisdiction of the Section  404 Program on the 60th day after the
date  of the  last  signature below and will continue in effect for
 five  years, unless  extended, modified or revoked by agreement of
 both  parties,  or revoked  by either party alone  upon  six months
written notice, prior to that time.
                                 2
     Robertyf ftt*                    Rebecca w. Hanmer
    stant s4/re£ary of•the .     Acting .  Assistant  Administrator
Army (Civil Works-)              for Water
                                tl. S. Environmental Protection
                                Agency


             M. MM
        Date

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                                                                    VI.E.9,
# "Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light
of Tabb Lakes v. United States." dated January 25,1990.

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                 WASHINGTON, D.C. 20460
                                 JAN  '<. 5 U90
OFFICE OF
 WATER
MEMORANDUM

SUBJECT:  Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of
            Tabb Lakes v. United State
FROM:     David.G. Davis,    v^mr  / \,J/\  T>
            Office of Wetlands Protection  7 ^

TO:         Regional Wetlands Division Directors
            Office of Regional Counsel Water Branch Chiefs

    As a result of the Fourth Circuit Court decision in Tabb Lakes v. United States, the
attached Environmental Protection Agency/Corps of Engineers memorandum was
developed to provide  guidance on the regulation of isolated waters pending completion
of rulemaking on this subject.

    Please direct any questions or comments concerning this memorandum to Steve
Neugeboren in the Office of General Counsel (FTS  382-7703), or to Suzanne Schwartz,
Greg Peck, or Cliff Rader of my staff (FTS 475-7799).

Attachment

cc w/attachment: Regional Wetlands Coordinators

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                       DEPARTMENT OF THE ARMY
                          U.S. Army Corpt of Engineeri
                         WASHINGTON. O.C. 20314-1000
         REPLV TO
         ATTENTION OF:
                                                 * 4 JAN 1990
CECW-OR
MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Clean  Water Act  Section 404 Jurisdiction Over Isolated
Waters in Light of Tabb Lakes v. United States


1.   As a result of the Fourth Circuit Court decision in Tabb Lakes
v. United  States, the  enclosed Corps of Engineers/Environmental
Protection Agency memorandum was developed to provide guidance  on
the regulation of isolated waters pending completion of rulemaking
on this subject.

2.   Questions  or comments  concerning  this  guidance should  be
directed to Dr. John Hall  (202) 272-0201  or Mr.  Lance Wood  (202)
272-0035.

FOR THE DIRECTOR  OF  CIVIL WORKS:
End
                              Chief, Operations, Construction and
                                Readiness Division
                              Directorate of Civil Works

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2
   <     t^
               United States Environmental Protection Agency

                    United States Department of the Army
SUBJECT:  Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of
              tabb Lakes v. United States
 1.  On September 22, 1989, in an unpublished opinion, the United States Court of
 Appeals for the Fourth Circuit held that the Corps of Engineers may not rely upon
 memoranda issued on November 8, 1985, and February 11,  1986, by Brigadier General
 Kelly, then Deputy Director of Civil Works, to assert jurisdiction over isolated wafrs
 under section 404 of the Clean Water Act.  Tabb Lakes v. United States, (No. 89-2905,
 4th Cir.). This memorandum provides direction on the continued assertion of
jurisdiction over isolated waters, as required by 33 CFR 328.3(a)(3),  in the wake of the
 Tabb Lakes decision.
2. Tabb Lakes focused on an EPA and Corps interpretation of the definition of "waters
of the United States" including isolated waters, described at 33 CFR 328.3(a)(3), as
follows:

       All other waters such as intrastate  lakes, rivers, streams (including
       intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
       potholes, wet meadows, playa lakes, or natural ponds, the use, degradation
       or destruction of which could affect interstate or foreign commerce,
       including any such waters:

       (i) Which are or could be used by  interstate or foreign travelers for
       recreational or other purposes;  or
                                                                          i

       (ii)  From which fish or shellfish are or could be taken and sold in
       interstate or foreign commerce; or

       (iii)  Which are  used or could be used for industrial purpose by industries
       in interstate commerce ....

The EPA General Counsel issued guidance on September 12, 1985, interpreting this
regulation to include isolated waters which are or could be used as habitat by birds
protected by Migratory Bird Treaties, migratory birds which cross state lines, and by
endangered species.  Brigadier General Kelly adopted this interpretive guidance in the
Corps guidance memoranda  cited above which were the subject of the Tabb Lakes
litigation. In Tabb Lakes, the Court held that the Corps may not rely on  this

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interpretive guidance in making a jurisdictional determination because the guidance was
a substantive rule that should have been, but was not, proposed for public comment
prior to its adoption by the agencies.  The United States does not intend  to appeal the
Fourth Circuit's Tabb Lakes decision. Instead, the EPA and the Corps intend to
undertake a > soon as possible an APA ruleinaking process regarding jurisdiction over
isolated waters.  This memorandum provides guidance on how Corps FOAs and EPA
Regional Offices should continue to assert CWA jurisdiction over isolated waters in
light of the Court of Appeals decision in Tabb Lakes, and pending completion of the
rulemaking process.
3. The United States believes that the Fourth Circuit's Tabb Lakes decision was
incorrect and we reserve the right to re-litigate the legal questions decided in the Tabb
Lakes case in other circuits.  Became this decision is not binding on courts outside of
the Fourth Circuit, we will not implement the decision outside the area constituting the
Fourth Circuit (i.e., outside the states of South Carolina, North Carolina, Virginia, West
Virginia, and Maryland).
4. Within the Fourth Circuit, we will follow the holding of Tabb Lakes, which was
limited to the procedural notice-and-comment issue discussed above.  Thus, within the
Fourth Circuit, we will not rely upon or cite the above-referenced memoranda in
making jurisdictional determinations.  However, we will continue to assert jurisdiction,
as required by the "waters of the United States" regulatory definition, over all waters,
the use, degradation or destruction of which could affect interstate or foreign
commerce, as is required by our existing regulations adopted through the Administrative
Procedure Act rulemaking process.  Corps FOAs and EPA Regions will apply this
regulatory definition to each site on a case-by-case basis, and will evaluate all available
information in a manner consistent with the language of the regulations and the
expressed Congressional intention  that Dean Water Act jurisdiction be exercised over
all waters to  the fullest extent legali; permissible under the Commerce Cause of the
Constitution.
5.  The following applies to CWA jurisdiction over all isolated waters within the Fourth
Circuit The definition of "waters of the United States" at 33 CFR 328.3(a)(3) was
promulgated through the APA rulemaking process and remains in full force and effect
notwithstanding the Tabb Lakes decision. This definition  encompasses "isolated" waters,,
including isolated wetlands, since it specifically cites as examples of jurisdictional waters
"...prairie potholes, wet meadows,  [and] playa lakes...", all  of which are normally
"isolated"  We fully intend to implement the Tabb Lakes  decision within the Fourth
Circuit; however, we interpret that decision as allowing the Corps and EPA to continue
to assert CWA jurisdiction over isolated waters. Accordingly, we expect Corps FOAs
and EPA Regional  offices within the Fourth Circuit to continue to regulate isolated

-------
 waters, including isolated wetlands, as required by existing regulations.  Consultation
 with your Office of Counsel is advisable for doubtful cases.
 6.  If there ar  any questions with regards to implementation, Corps Divisions should
 contact Mr. Lance Wood (CECC-E, (202) 272-0035) or the Chief, Regulatory Branch
 (CECW-OR, (202) 272-1785).  EPA Regions should contact Mr. Steve Neugeboren
 (Office of General Counsel, (202) 382-7703) or Ms. Suzanne Schwartz (Office of
 Wetlands Protection, (202)  475-7799).
 For the Chief of Engineers:
                                         For the Environmental Protection Agency:
\
  \
  \\
'JOMN P. ELMORE        Bat
 CmB4, Operations, Construction,
  and Readiness Division
 Directorate of Civil Works
                                          DAVID G. DAVIS        Date
                                          Director
                                          Office of Wetlands Protection

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VI. F.

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VI. SPECIALIZED ENFORCEMENT TOPICS
    F. CONTRACTOR LISTING

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                                                                  VI.F.I.
"Guidance for Implementing EPA's Contractor Listing Authority", dated July
18, 1984.  See GM-31. (Superseded by F.4, below)

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     I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     :'                WASHINGTON, D.C. 20460
                .JUL
                                 J984
                                                        Offir.t
                                                     COM»i'.\N' r
MEMORANDUM
SUBJECT:
FROM:
TO:
Guidance for Implementing
Listing Authority

                  '
                          EPA's .Contractor
Courtney M. P
Assistant Administrator  or
  and Compliance Monitoring
Ass istant
Assistant
Assistant
Assistant
          Administrator for
          Administrator for
          Administrator for
          Administrator for
            and Evaluation
          General Counsel
          Inspector General
          Regional Administrators
                                      Enforcement
Air and Radiation
Water
External Affairs
Policy, Planning
I.  Purpose

     The purposes of this document are to briefly  describe:
1) EPA's contractor listing authority, 2) the  interim  agency
policy prior to final promulgation of revisions  to the  listing
regulations at 40 C.F.R. Part 15, and 3) the proposed  revisions
to 40 C.F.R. Part 15.  Further, the document gives some  general
guidance on when to bring a contractor listing action,  and
explains how the Age'ncy's Strategic Planning and Management
System will account for listing actions as enforcement  responses
II.  Background

     The Clean Air Act1
by executive order^ and
              and the Clean Water Act^, as implemented
              Federal regulation,4 authorize EPA to
_!/  Clean Air Act, Section 306, 42 U.S.C §7606.
2/  Clean Water Act, Section 508, 42 U.S.C. §1368
_3/  Executive Order 11738, September 12, 1973
4/  40 C.F.R. Part 15
                     SI
                                onv

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                              -2-

preclude certain facilities from obtaining government contracts,
grants, or loans, if the facility is violating pollution contrq
standards.  Commonly called "contractor listing", this program
assures that each Federal Executive Branch agency undertakes
procurement and assistance activities in a manner that will
result in effective enforcement of the air and water acts.
Contractor listing also ensures that owners of noncomplying
facilities do not receive an unfair competitive advantage in
contract awards based on lower production costs.

     In the past, EPA has seldom used .contractor listing in
the enforcement program.  Currently, one facility (Chemical
Formulators, Inc., Nitro, West Virginia)5 is on the List of
Violating Facilities.  Contractor listing can be an effective
enforcement tool, and EPA policy calls for Regional-Office
enforcement personnel to actively consider the viability of
this option to obtain compliance with Clean Air Act and Clean
Water Act standards.

     With a view toward improving and streamlining  the contractor
listing program, EPA has proposed revisions to 40 C.F.R Part 15
(copy attached).  The proposed revisions provide additional
procedural protections to facilities which are the  subject of
listing recommendations and expand the range of situations which
may trigger the listing sanction.
II
y tiiyyet LUC j. i .•=> u j. n y sauu i_ a.un .


I.  Interim Listing Policy While  Regulations Undergoing Revisiq

   h   f"^ »» ^M t r\ /•}(?•  Qt/ o ^ a *- 11 t- e*  FDA m 11 e *• lief- a £a/-»i1if»tf L.» H i *-• H
     A.  Grounds;  By statute, EPA must list a facility which
has given rise to a person's conviction under Section 309(c)
of the CWA or Section 113(c)(l) of the CAA, and that person
owns, leases, or supervises such facility  (mandatory listing).
Otherwise, prior to promulgation of the revised Part 15 regulations,
EPA may list a facility only on the following grounds set forth
in the current Section 15.20(a)(l) (1979)  (discretionary listing).
Specifically, EPA may list a facility only if there is continuing
or recurring non compliance at the facility and

          0  The facility has given rise to an injunction,
             order, judgment, decree, or other form of civil
             ruling by a Federal, State, or local court issued
             as a result of noncompliance with clean air or
             clean water standards, or the facility has given
             rise to a person's conviction in a State or local
             court for noncompliance with clean air or clean
             water standards, and that person owns, leases, or
             supervises the facility.

          0  The facility is not in compliance with an order
             under Section 113(a) of the CAA or Section 309(a)
             of CWA, or has given rise to the initiation of
5/  46 F.R. 16324, March 12, 1981

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                              -3-

             court action under Section  113(b) of  the CAA  or
             309(b) of the CWA, or has been subjected to
             equivalent State or local proceedings  to enforce
             clean air or clean water standards.

     B.  Procedures;  Prior to promulgation of the  revised
regulations, EPA will employ the procedures proposed in the
revised regulations for discretionary listing and  the procedures
in the current regulations  [Section  15.20(a)(2)(1979)] for
mandatory listing, explained below.  EPA will use  the procedures
proposed in the revised regulations  for discretionary listing
because these regulations provide greater procedural protections
than the current regulations''.  Because the revised mandatory
listing regulations authorize less procedural protections  than
the current procedures, however, EPA will continue  to employ
the current regulations until the revised mandatory-listing
procedures are legally effective.

     We recognize that some confusion may result during the
interim period, so you should not hesitate to contact the  EPA
Listing Official7 to resolve any problems.  Upon promulgation
of the final rules, we will revise this guidance as necessary.

IV.  The Listing Program and the Proposed Revisions to Part 15

     Even under the revised regulations as proposed, the basic
framework for listing actions is substantially the  same as
established by the present regulations.  The proposed revisions
to Part 15 clarify the distinctions  between mandatory and
discretionary -1isting, and establish some different procedures
for each type of listing.8

     A.  Mandatory Listing

     If a violation at a facility gives rise to a  criminal
conviction under Section 113(c)(l) of the CAA or Section 309(c)
of the CWA, listing of the facility  is mandatory if the convicted
person owns, leases or supervises the facility.  Not only  is
listing mandatory, but section 15.10 makes the listing effective
6/ One exception is that EPA will continue to use the Listing
   Review Panel to review decisions of the Case Examiner.  The
   Panel consists of the AAs for OECM and Policy, Planning and
   Evaluation, the General Counsel, and a representative from
   the Office of the Deputy Administrator who shall serve as a
   non-voting member.

'"]_/ I have designated Edmund J. Gorman of the Office of Legal
   and Enforcement Policy (LE-130A) as EPA's Listing Official.
   He can be reached at (FTS)  426-7503.

_§/ Hereinafter all citations are to the proposed revised Part 15
   regulations unless otherwise expressly stated.

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                              -4-
automatically upon a conviction.   As soon as a conviction occurs,
the Associate Enforcement Counsel for Criminal Enforcement
must notify the Listing Official.

       The Listing Official is responsible for sending written
notification to the facility and  to the Federal Register.  Both
documents must state the basis for and the effective date of
the mandatory listing.

     Removal from the mandatory list may occur only if:  (1) the
Assistant Administrator certifies that the facility'has corrected
the condition that gave rise to the criminal conviction under
Section 113(c)(l) of the CAA or Section 309(c) of the CWA, or
(2) a court has overturned the criminal conviction.

B.   Discretionary Listing

1.   Basis for Discretionary Listing

     Discretionary listing may occur if the recommending person
can show a "record of continuing  or recurring noncompliance,"
and that a requisite enforcement  action has been initiated or
concluded.  The proposed revisions broaden the discretionary
listing authorities by including  additional statutory provisions'
under which EPA can bring enforcement actions that can trigger
applicability.  Under the proposed regulations, any of the
following enforcement actions may serve as a basis for listing
if there is also a record of continuing or recurring noncompliance
at the facility:

          1.  A federal court convicts any person under Section
              113(c)(2) of the CAA, if that person owns, leases,
              or supervises the facility.

          2.  A State or local court convicts any person of a
              criminal offense on the basis of noncompliance
              with clean air or clean water standards if that
              person owns, leases, or supervises the facility.

          3.  A federal, state, or local.court issues an injunction,
              order, judgment, decree, or other form of civil
              ruling as a result  of noncompliance with clean air
              or clean water standards at the facility.

          4.  The facility is the recipient of a Notice of
              Noncompliance under Section 120 of the CAA.

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                              -5-

          5.  The facility has violated an administrative order
              under:
Section
Section
Section
Section
Section
113(a)
113(d)
167
303
309(a)
CAA
CAA
CAA
CAA
CWA
          6.  The facility is the subject of a district court
              civil enforcement action under:

                 .   Section 113(b) CAA
                    Section 204    CAA             -,
                    Section 205    CAA
                    Section 211    CAA
                    Section 309(b) CWA

2.   Initiating the Discretionary Listing Process

     The listing process begins with a recommendation to list
filed by a "recommending person" with the Listing Official.
Recommending persons include any member of the public, Regional
Administrators, the Assistant Administrator for Air and Radiation,
the Assistant Administrator for Water, the Associate Enforcement
Counsel for Air, the Associate Enforcement Counsel for Water,
and Governors.  The recommendation to list is a written request
that:  (1) states the name, address, and telephone number of
the recommending person, (2) describes the facility, and (3)
describes the alleged continuing or recurring noncompliance,
and the parallel enforcement action.  Section 15.1Kb).

     The Listing Official must review the recommendation to
determine whether it meets the requirements of Section 15.1Kb).
If it does, the Listing Official then must transmit the
recommendation to the Assistant Administrator for Enforcement
and Compliance Monitoring who shall in his/her discretion,
decide whether to proceed with the listing action.  If he/she
decides to so proceed,  the Listing Official then must notify
the facility of the filing of a recommendation to list.  The
facility then has 20 working days to request EPA to hold a
listing proceeding.  If the facility requests the proceeding,
the Listing Official must schedule it and notify the recommending
person and the facility of the date, time, and location of the
proceeding.  The Assistant Administrator must designate a Case
Examiner to preside over the listing proceeding.9
_9/ If the facility does not make a timely 'request for a listing
   proceeding, the Assistant Administrator will determine whether
   to list the facility based upon the recommendation to list
   and any other available information.

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                              — 6 —
3.   The Discretionary Listing Proceeding

     The discretionary listing proceeding is informal, i.e.,
there are no formal rules of evidence or procedure.  The
recommending person and the facility may be represented by
counsel, present relevant oral and written evidence and, with
the approval of the Case Examiner, either party may call,
examine, and cross-examine witnesses.  The Case Examiner may
refuse to permit cross-examination to the extent it would:
(1) prematurely reveal sensitive enforcement information which
the government may legally withhold, or (2) unduly extend the
proceedings in light of the usefulness of any additional
information likely to be produced.  Section 15.13(b).  A trans-
cript of the proceeding along with any other evidence admitted
in the proceeding 'constitutes the record.  For the Case Examiner
to approve a recommendation to list, the recommending person
must persuade the Case Examiner that he/she has proved each
element of a discretionary listing by a preponderance of the
evidence.

     The Case Examiner must issue a written decision within 30
working days after the proceeding.  The Listing Official then
must notify the recommending person and the facility of the Case
Examiner's decision.  The party adversely affected may appeal
the decision to the General Counsel.  The appeal, which is
filed with the Listing Official, must contain a statement of
(1) the case and the facts involved, (2) the issues, and (3)
why the decision of the Case Examiner is not correct based on
the.record of the proceeding considered as a whole.  The General
Counsel must issue a final decision, in writing, as soon as
practicable after reviewing the record.  The Listing Official
then must send written notice of the decision to the recommending
person and to the facility, and must publish the effective
date of the listing in the Federal Register if the General
Counsel upholds the Case Examiner's decision to list.

     Removal from the list of Violating Facilities can occur in
any of the following circumstances:

          1.  Upon reversal or other modification of the criminal
              conviction decree, order, judgment, or other
              civil ruling or finding which formed the basis
              for the discretionary listing, which reversal or
              modification removes the basis for the listing;
      <
          2.  If the Assistant Administrator for OECM determines
              that the facility has corrected the condition(s)
              which gave rise to the listing;

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                              -7-
          3.  If, after the facility has remained on the
              discretionary list for one year on the basis of
              Section 15.11(a)(4) or Section 15.11(a)(5) and
              a basis for listing under Sections 15.11(a)(l),
              (2), or (3) does not exist, then removal is
              automatic; or

          4.  If the Assistant Administrator for OECM has
              approved a plan for compliance which ensures
              correction of the condition(s) which gave rise to
              the discretionary listing.
                                                   «•
     The removal process begins with a request for removal
filed with the Listing Official by the original recommending
person or by the facility.  The Assistant Administrator for
OECM then must review the request and issue a decision as soon
as possible.   The Listing Official then must transmit the
decision to the requesting person.

     If the Assistant Administrator for OECM denies a request
for removal, the requesting person may file a written request
for a removal hearing.  A Case Examiner designated by the
Assistant Administrator then conducts a removal hearing.  The
removal hearing is an informal proceeding where formal rules
of evidence and procedure are not applicable.  The parties to
the proceeding may be represented by counsel and may present
written and oral testimony.  In addition, with the approval of
the Case Examiner, the parties may call, examine, and cross-
examine witnesses to the extent that any further information
produced will be useful in light of the additional time such
procedures will take.  The Case Examiner must base his/her
written decision solely on the record of the removal hearing.

     Within 20 working days of the date of the Case Examiner's
decision,  the party adversely affected may file with the Listing
Official a request for review by the Administrator.  The
Administrator will determine if the Case Examiner's decision
is correct based upon the record of the removal hearing considered
as a whole.   The Administrator then must issue a final written
decision.

V.   Increased Use of Discretionary Listing.

     We believe that the revisions to the discretionary listing
regulations are only the first step in the improvement of our
contractor listing program as an effective enforcement tool.
The second step, actually using the listing authority, will
gain for us the necessary experience in this area.  Note that
for purposes of the Strategic Planning and Management System,
regions may show recommendations to list as enforcement actions
taken in tracking regional progress toward bringing significant
violators into compliance.

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                              -8-

     Currently, our lack of experience in this area inhibits
our ability to offer explicit guidance based upon known formulas.
However, we believe that some general points are worth noting.

     Listing is a very severe sanction and/  therefore, should
usually be reserved for the most adversarial situations.  If
such an adversarial situation already involves time consuming
litigation, however, recommending persons employed by EPA
should consider the additional resource requirements associated
with both the listing proceeding and the potential judicial
challenges to the administrative action.  When enforcement
litigation is in progress, recommending persons employed by
EPA should also consider whether the listing proceeding will
provide grounds for collateral attack against EPA's case, and
whether such attack would be a benefit or hindrance to successful
prosecution of the underlying judicial litigation.

     In some cases, listing may be an effective alternative to
litigation.  Note specifically that EPA has the option of using
listing as an enforcement response if a facility fails to
comply after being subject to an administrative or judicial
order.  Note further that EPA may bring a listing proceeding
based on present "recurring or continuing" violations and a
prior judicial or administrative judgment even if the prior
action did not address the present violations.  Specifically,
EPA should consider listing actions for violating facilities
for which previously concluded enforcement actions have not
stopped the violator from continuing practices constituting a
pattern of chronic noncompliance.

     Listing may be especially effective if the value of the
facility's government contracts, grants, and loans exceeds the
cost of compliance.  If the value of these assets is less than
the compliance costs, listing probably would not provide adequate
incentive to comply.  On the other hand, if the value of such
assets is considerably greater than the cost of compliance, a
listing proceeding could conceivably impede progress toward
resolving the environmental problem because the facility is
more likely to vigorously contest the listing both at the
administrative and Federal court levels.  Therefore, we believe
that listing will be most appropriate for "middle ground cases"
for which there is an ongoing parallel action, i.e., ones
where the government contract, grants and loans for the facility
in question exceed compliance costs but not considerably.

     Finally, a listing proceeding is likely to be more
efficient, and therefore more effective, if the continuing
or recurring noncompliance involves unambiguous and clearly
applicable clean air or clean water standards.  If the standards
are fraught with complications pertaining to the appropriate
compliance test method or procedure, for example, the listing
proceeding is probably ill-suited to handle such issues.

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                              -9-

     Prior to filing a recommendation to list, recommending
persons employed by EPA must consult with my office to ensure
that a recommendation to list comports with national policy
and priorities and is otherwise appropriate.  We expect that
experience, as usual, will prove to be the best teacher.  As
we gain experience and after final promulgation of the revisions,
we will provide further guidance.

Attachment

cc:  Assistant Attorney General for Land and Natural Resources
     Associate Enforcement Counsels
     OECM Office Directors
     Regional Counsel I-X
     Steve Ramsey, Chief Environmental Enforcement Section, DOJ
     Director, Stationary Source Compliance Division
     Director, Enforcement Division, Office of Water

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                                                                 VI.P.2.
"Implementation of Mandatory Contractor Listing", dated August 8, 1984,
See GM-32.

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     3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     f                WASHINGTON. D.C. 20460
                                08 1984
                                                        OFFICE OF
                                                      ENFORf.EMf NT ANO
                                                     COMPLIANCE MONITORING
          Implementation of Mandatory Contractor  Listing
MEMORANDUM

SUBJECT:

FROM:     Courtney
          Assistant Administrator for. Enforcement
            and Compliance Monitoring

TO:       Assistant Administrator for Air and Radiation
          Assistant Administrator for Water
          Associate Enforcement Counsel for Air Enforcement
          Associate Enforcement Counsel for Water Enforcement
          Associate Enforcement Counsel for Criminal Enforcement
          Assistant Attorney General for Land and Natural
            Resources
          Regional Counsels I-X

Introduction and Purpose

     Pursuant to statutory requirements, the proposed revisions
to 40 CFR Part 15 require that the List -of Violating Facilities
("the List") automatically include any facility which gives rise
to a criminal conviction of a person under Section 113(c)(l) of
the Clean Air Act or Section 309(c) of the Clean Water Act.
Any facility on the List is ineligible to receive any non-exempt
Federal government contract, grant, or loan.  Removal of a
facility from the List occurs only if I certify that the condition
giving rise to the conviction has been corrected or if a court
reverses or vacates the conviction.  This memorandum establishes
the procedure to implement the mandatory portion of the contractor
listing program. jV
V Guidance on implementation of the discretionary listing
authority issued on July 18, 1984.
                   oeoiwv

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                                -2-

  Procedure for Mandatory Listing

  I.  A federal district court must enter a guilty verdict or
      guilty plea of a person under Section 113(c)(l) of the
      Clean Air Act or Section 309(c)  of the Clean Water Act.
      The convicted person must own, operate,  lease, supervise
      or have a financial interest in  the facility which gave
      rise to the conviction.  Note that criminal convictions
      under Section 113(c)(2) of the Clean Air Act and criminal
      convictions entered by a State or local  court do not qualify
      a facility for mandatory listing.

 II.  Upon notification of an entry of a guilty verdict or guilty
      plea by the clerk of the district court, the Department of
      Justice must immediately notify  the Associate Enforcement
      Counsel for Criminal Enforcement (LE-134E).  This notification
      must occur even if the defendant still awaits sentencing,
      has moved for a new trial or a reduced sentence, or has
      appealed the conviction.

III.  The Associate Enforcement Counsel for Criminal Enforcement
      must independently verify that the court has entered the
      guilty verdict or guilty plea.

 IV.  Upon such verification, the Associate Enforcement Counsel
      for Criminal Enforcement shall notify EPA's Listing Official
      (LE-130A) in writing,  of the name and location of the facility^
      and of the condition giving rise to the  guilty verdict or
      guilty plea.

  V.  The Listing Official shall then  update the List by publishing
      a notice in the Federal Register, and shall notify the
      Associate Enforcement  Counsel for Air or Water; the appropriate
      Regional Counsel; the  Compliance Staff,  Grants Administration
      Division, Office of Administration and Resource Management;
      the General Services Administration, and the facility.  A
      facility remains on the mandatory List indefinitely until
      it establishes a basis for removal.

  Procedure for Removal from the Mandatory List

   I.   Any person who owns,  operates,  leases,  supervises, or has
       a financial interest  in the listed facility may file with
       the Listing Official  a request  to remove that facility from
       the List.  The request must establish one of the following
       grounds for removal:

       A.  The condition at  the facility that  gave rise to the
           conviction has been corrected.

       B.  The conviction (not just the sentence) was reversed or
           vacated.

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                               -3-

 II.  The Listing Official must transmit the request for removal
      to the Assistant Administrator for OECM.

III.  The Assistant Administrator for OECM, or her or his designee,
      shall review the request for removal and shall consult the
      appropriate Regional Counsel to determine whether the
      condition at the facility giving rise to the conviction
      has been corrected, or if the conviction has been reversed
      or vacated.

 IV.  The Assistant Administrator for OECM shall determine as
      expeditiously as practicable whether to remove the facility
      from the list.

  V.  If the Assistant Administrator for OECM decides to remove
      the facility from the list, a written notification of
      such determination shall be sent to the facility and to
      the Listing Official who shall promptly publish a notice
      of removal in the Federal Register.

 VI.  If the Assistant Administrator for OECM decides not to
      remove the facility from the List, the Listing Official
      shall send written notice of the decision to the person
      requesting removal.  The notice shall inform the person
      owning, operating, leasing, supervising or having a
      financial interest in the facility of the opportunity
      to request a removal hearing before a Case Examiner
      (See 40 CFR Part 15 for the selection and duties of the
      Case Examiner).

VII.  If the Case Examiner, or the Administrator upon appeal of
      the Case Examiner's decision, decides to remove the facility
      from the List, the Listing Official shall be notified.
      The Listing Official shall then promptly remove the facility
      from the List.  If the Case Examiner or the Administrator
      upon appeal, decides not to remove the facility from the
    ,  list, then the Listing Official shall send written notice
      of the decision to the person requesting removal.

      It is important to note that any decision regarding the
 listing or removal of a facility from the List does not affect
 any other action by any government agency against such a facility,
 including debarment from government contracting.

      I believe these procedures will enable us to conduct the
 mandatory listing program in an efficient manner.  If you have
 any questions, please contact EPA's Listing Official, Allen J.
 Danzig,* at (FTS) 475-8777.

 cc:  Stephen Ramsey, DOJ
      Belle Davis, GAD/OARM
      Judson W. Starr,/DOJ

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                                                                 VI.F.3.
"Policy on Implementing Contractor Listing Program", dated August 27, 1985.
(deleted - Draft Policy only)

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                                                                   VI.F.4.
"Guidance on Implementing the Discretionary Contractor Listing Program",
dated November 26, 1986.  See GM-53.

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                                                      OFFICE OF ENFORCEMENT

                            NOV 26 KHfi                 AND COMPLIANCE
                                                         MONITORING
MEMORANDUM

SUBJECT:  Guidance on Implementing the Discretionary  Contractor
          Listing Program

FROM:     Thomas L. Adams, Jr.  —****• >.*»
          Assistant Administrator for Enforcement
            and Compliance Monitoring

TO:       Assistant Administrator for Air and Radiation
          Assistant Administrator for Water
          General Counsel
          Inspector General
          Regional Administrators, Regions I-X
          Regional Counsels, Regions I-X


I.   Purpose

     This document establishes Agency policy and procedures  for
implementing the discretionary contractor listing program  in EPA
enforcement proceedings.  It should be read in conjunction with
the final revisions to the contractor listing regulations  (40 CFR
Part 15, 50 FR 36188, September 5, 1985), and the guidance document,
"Implementation of Mandatory Contractor Listing"  (General  Enforce-
ment Policy No. GM-32, August 8, 1984).  The procedures to be
followed in all contractor listing actions are contained in  the
rule and are summarized in an Appendix to this document.   This
policy applies only to discretionary listing proceedings and super-
sedes the "Guidance for Implementing EPA's Contractor Listing
Authority" (General Enforcement Policy No. GM-31, July 18, 1984).

     The revisions to the contractor listing regulations,  together
with this guidance document and other management  initiatives, should
encourage greater use of the Agency's listing authority and  should
expedite the process for listing a facility.

II.  Background

     The Clean Air Act (CAA), Section 306, and the  Clean Water Act
(CWA), Section 508, as implemented by Executive Order 11738, authorize
EPA to prohibit facilities from obtaining federal government contracts,

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                                -2-

granta or loans (including subcontracts, subgrants and subloans),
as a consequence of criminal or civil violations of the CAA or CWA.
Commonly called "contractor listing/1 this program provides EPA
with an effective administrative tool to obtain compliance with
the CAA and CWA where administrative or judicial action against a
facility has failed to do so.

     On July 31, 1984, EPA proposed revisions to the contractor
listing regulations (40 CFR Part 15 (49 FR 30628)) to simplify and
clarify the procedural opportunities which EPA will provide to
parties to listing or removal actions and to provide for mandatory
(i.e., automatic) listing of facilities which give rise to criminal
convictions under Section 113(c)(l) of the CAA or Section 309(c)
of the CWA.  Final rules were promulgated on September 5, 1985
(50 FR 36188).

III.  Appropriate Cases for Discretionary Listing Recommendations

     In numerous cases, initiation of a listing action has
proved to be effective in achieving more expeditious compliance
and case settlements.  While regional offices should consider
making contractor listing recommendations in every case where
the criteria of 40 CFR Part 15 are met, listing is a tool to
be used in conjunction with other enforcement actions.   (See IV.
Standard of Proof in Listing Proceedings, page 4.) The circumstances
surrounding each case will dictate whether a listing action should
be initiated.  In particular, use of listing may be appropriate in
the following cases:

          A.  Violations of Consent Decrees

     Regional offices should strongly consider making listing
recommendations for all cases of noncompliance with consent decrees
under the CAA or CWA.  The recommendation should be prepared at
the earliest possible time after the Region learns of noncompliance
with the decree, but no later than the filing of a motion to enforce
the decree.  Initiation of the listing action should be  supplementary
to, and not in lieu of, a motion to enforce the decree.  Where a
consent decree covers CAA or CWA violations as well as violations
of other environmental statutes, such as the Resource Conservation
and Recovery Act (RCRA) or the Toxic Substances Control  Act (TSCA)
(where EPA does not have contractor listing authority),  a listing
recommendation also should be considered.

          B.  Continuing or Recurring Violations Following
              Filed Civil Judicial Actions'

     Where EPA has filed a civil judicial enforcement action, the
Regional Office should initiate a listing action at the  earliest
possible time after it determines that:   (1) noncompliance is
ongoing, (2) the defendant is not making good faith efforts to

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                                -3-

comply, and (3} an expeditious settlement does not appear likely.
For example, «" defendant may make a firm settlement offer that is
far below the economic savings it realized from its noncompliance,
making settlement unlikely.

     Similarly, where EPA initiates a multi-media civil enforcement
action against violations under the CAA or CWA and other environ-
mental statutes (such as RCRA or TSCA), and continuing water or
air compliance problems exist without good faith corrective efforts,
the Region should consider bringing a listing action.  Therefore,
it is important that all CAA and CWA counts be included in a multi-
media enforcement action.

          C.  Violations of Administrative Orders

     Where noncompliance continues after an administrative order
has been issued under the CAA or CWA, and the Regional Office
determines that the facility is not making sufficient efforts to
come into compliance, a listing recommendation should be considered.
Initiation of a listing action generally should not be in lieu of
filing a civil judicial action to enforce the administrative order,
but should support the civil action.  The Regional Office should
consider initiating a listing action at the same time that it
files the civil judicial action.

          D.  Multi-Facility Noncompliance within a Single Company

     Contractor listing can be an effective tool to address a
pattern of noncompliance within a single company.  Where continuing
or recurring CAA or CWA violations occur at two or more facilities
within the same company, and EPA previously has taken an enforcement
action against each, the Regional Office should consider making
listing recommendations in all such cases.

     While each facility's continuing or recurring noncompliance
must be proved separately  (i.e., one may not use one violation from
branch facility A and one violation from branch facility B to
constitute the minimum two violations required), one listing recom-
mendation describing noncompliance at two or more facilities may be
submitted to the Assistant Administrator for the Office of Enforce-
ment and Compliance Monitoring (OECM).  A joint listing proceeding
may be held concerning all facilities.  Joint consideration of two
or more facilities' violations will require fewer Agency resources
than listing each facility separately.  It will also discourage
companies from switching government contracts from a listed facility
to another facility without taking steps to correct the violations
which gave rise to the listing.

     To accomplish this, the Regional Office, with headquarters
staff support, should review the EPA enforcement docket to see if
a potential listing candidate has committed CAA or CWA violations
at other company facilities.  Note that a company's facilities may
be known by the parent company name or by the names of company

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                                -4-

subsidiaries. - Regional offices may obtain information on
other conpany-'facilities from Charlene Swibas, Chief, Information
Services Section, NEIC (FTS 776-3219), who will search EPA's
Facility Index System which lists this information for all EPA
regions, or provide a Dunn and Bradstreet report containing this
information.

     The Region may also request data on administrative orders
issued against a company under the headquarters Permit Compliance
System  (for CWA violations) and the Compliance Data System (for
CAA violations).  In some cases EPA has issued administrative
orders and filed civil enforcement actions against company facil-
ities which are located in more than one region.  Such multi-regional
inquiries may be coordinated with the Headquarters participating
attorney and the Agency's Listing Official.

          E.  Other Circumstances Where Listing is Appropriate

     The regulation provides two other situations where listing may
be appropriate.  First, EPA can list a facility after it has issued
a Notice of Noncompliance under Section 120 of the CAA.  The threat
of listing in combination with noncompliance penalties can impose a
sufficiently severe economic cost on a facility to encourage efforts
to achieve both compliance and quicker settlements.  Second, Regional
Offices may recommend listing when a state or local court convicts
any person who owns, operates, or leases a facility of a criminal
offense on the basis of noncompliance with the CAA or the CWA.
They also may recommend listing when a state or local court has
issued an injunction, order, judgement, decree  (including consent
decrees), or other civil ruling as a result of noncompliance with
the CAA or CWA.

IV.  Standard of Proof in Listing Proceedings

     It will be the responsibility of the Office of Regional
Counsel to represent the Agency at any listing proceeding (where
one is requested by the affected facility).  According to 40 CFR
Section 15.13(c), "[t]o demonstrate an adequate basis for listing
a facility, the record must show by a preponderance of the evidence
that there is a record of continuing or recurring non-compliance
at the facility named in the recommendation to list and that the
requisite enforcement action has been taken."

     "Requisite enforcement action" can be established by reference
to an issued administrative or court order, or a filed civil  judicial
action.  "Continuing or recurring" violations are understood to
mean two or more violations of any standard at a facility, which
violations either occur or continue to exist over a period of time.
Such a violation occurs even when different standards are violated
and time has elapsed between violations.  Thus, in a listing proceed-
ing, it is not necessary to prove all violations of CAA or CWA
standards alleged in the underlying enforcement action.  Nonetheless,

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                              -5-

the regional attorney must carefully review the sufficiency of the
evidence and evaluate anticipated defenses.

V.   Fairness Concerns in EPA Use of Contractor Listing

     It is the intent of this guidance document to encourage the
use of the Agency's contractor listing authority in appropriate
cases.  However, it must be recognized that listing is a severe
sanction.  Before making a recommendation in any case, the Regional
Office should determine that the continuing or recurring noncompli-
ance involves clearly applicable CAA or CWA standards.  Likewise,
Agency enforcement personnel must be careful in using listing
terminology during discussions with defendants.  During settlement
negotiations, for example, it is certainly proper for EPA to advise
a defendant of the range of available EPA enforcement authorities,
including contractor listing.  However, EPA personnel must distin-
guish between a listing recommendation (made by a "recommending
person," usually the Regional Administrator, to the Assistant
Administrator for OECM), a notice of proposed listing by the Agency
to the affected facility (which is sent by the Listing Official
after a preliminary decision to proceed is made by the Assistant
Administrator for OECM), and a final decision to list which is made
either by an Agency Case Examiner at the end of a listing proceeding,
or by the Assistant Administrator for OECM if no listing proceeding
is requested.  Where appropriate, EPA personnel should explain that
the Regional Administrator's listing recommendation does not consti-
tute a final Agency decision to list.

VI.   Press Releases on Contractor Listing Actions

     EPA will use press releases and other publicity to inform
existing and potential violators of the CAA and the CWA that EPA
will use its contractor listing authority in appropriate situations.
The November 21, 1985, "Policy on Publicizing Enforcement Activities"
(GM-46), states that "Ci]t is EPA policy to issue press releases when
the Agency:  (1) files a judicial action or issues a major adminis-
trative order or complaint (including a notice of proposed contractor
listing and the administrative decision to list)...."  As discussed
in that policy, the press release should be distributed to both the
local media in the area of the violative conduct and the trade
press of th« affected industry.

VII.  Coordination with the Department of Justice

     To ensure that information presented during a listing proceeding
will not compromise the litigation posture of any pending legal
action against a party, EPA will coordinate with the Department of
Justice (DOJ) before a recommendation to list is made to the Assis-
tant Administrator for OECM.  If the recommending party is an EPA
regional office official, he or she shall coordinate with the
appropriate DOJ attorney before a recommendation is 'submitted to
the Listing Official.  He or she shall also provide the DOJ attor-
ney's comments to the Listing Official as part of the recommendation

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                                -6-

package.  If the recommending party is not an EPA official, the
Listing Official shall coordinate with the EPA Office of Regional
Counsel and the appropriate DOJ attorney before a recommendation
to list is presented to the Assistant Administrator for OECM.

VIII.  Applicability of Contractor Listing to Municipalities

     Municipalities are subject to listing under appropriate cir-
cumstances.  State and local governments and other municipal bodies
are specifically identified by 40 CPR §15.4 as "persons" whose
facilities may be listed.  The standards for recommending that a
municipal facility be listed are the same as those for listing
other facilities.  Listing may not be the most effective enforce-
ment tool in many municipal cases because often the only federal
funds received by a municipal facility are grant funds to abate or
control pollution, which are exempted, from the listing sanction by
40 CFR §15.5.  However, listing still should be considered in cases
where a municipal facility receives nonexempt funds or where the
principles underlying the listing authority otherwise would be
furthered by a recommendation to list.

IX.  Use of Listing in Administrative Orders

     Enforcement offices may wish to inform violating facilities
early in the enforcement process of the possibility of being listed
Many facilities do not know about the listing sanction; such knowl-
edge may provide additional impetus for a facility to take steps
to come into compliance.  For example, some EPA regions notify
facilities whose violations make them potential candidates for
listing of this possibility in the cover letter which accompanies
an administrative order requiring them to take action to correct
their noncompliance.

X.   Obtaining Information Concerning Government Contracts
     Held by a Facility Under Consideration for Listing

     After an EPA recommending person, usually the Regional
Administrator, has submitted a listing recommendation to the
Listing Official, the regional office attorney handling the
case may require the facility to provide a list of all federal
contracts, grants, and loans (including subcontracts, sub-
grants, and subloans).  To insure that such a requirement is
not imposed prematurely, the regional office attorney should
require this information from a facility only after advising
the Listing Official of his or her intention to do so.  Requiring
this information from the facility is not a prerequisite for
listing a facility.

     Requiring this information from a facility may be accom-
plished by telephone or through a letter similar to the models
provided in Attachments D and E.  Attachment D is a model letter
requesting information from a facility which is violating an
administrative order issued under the authority of the Clean

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Water Act for violating ita National Pollutant Discharge Elimination
System (NPDESf permit.  Attachment E is a letter to a facility
which EPA and the Department of Justice have filed a civil suit
against for violating the Clean Air Act.  Regional office attorneys
may elect to have such a request letter serve as notification to
the facility that EPA is considering instituting a listing action,
or they may wish to inform the facility before sending such a
letter.  Which approach is taken will depend on the regional office
attorney's judgment of the notification's effects on the overall
case against the facility.
XI.  Headquarters Assistance in Preparing and Processing
     Listing Recommendations
     In order to encourage the use of the contractor listing author-
ity in appropriate cases, OECM staff have been directed to assist
regional offices in preparing listing recommendations.  Attached
are model listing recommendations indicating the level of detail
and support that should be provided with recommendations.  (See
Attachments A, B, and C for model listing recommendations.)  Where
a listing recommendation is sufficient, the Assistant Administrator
for OECM will decide whether to proceed with the listing action
under Section 15.11(c) (i.e., by directing the Listing Official to
issue a notice of proposed listing to the affected facility) within
two weeks after receiving the recommendation.  Questions concerning
contractor listing may be directed to the Agency Listing Official,
Cynthia Psoras, LE-130A, FTS 475-8785, E-Mail Box EPA2261.

Attachments

cc:  John Ulfelder
     Senior Enforcement Counsel
     Associate Enforcement Counsel for Air
     Associate Enforcement Counsel for Water
     Director, Office of Water Enforcement and Permits
     Director, Stationary Source Compliance Division
     Director, Office of Compliance Analysis and Program Operations
     Director, NEIC
     Director, Water Management Division (Regions I-X)
     Director, Air Management Division (Regions I, III, V and IX)
     Director, Air and Waste Management Division (Regions II and VI)
     Director, Air, Pesticides and Toxics Management Division
        (Region IV)
     Director, Air and Toxics Division (Regions VII, VIII and X)
     David Buente, Department of Justice (DOJ)
     Nancy Firestone, DOJ

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                                                      Appendix




     The Listing Program and Final Revisions to 40 CFR Part 15

     A.  Mandatory Listing

     If a violation at a facility gives rise to a criminal con-
viction under Section 113(c)(l) of the CAA or Section 309(c) of
the CWA, listing of the facility is mandatory (and effective upon
conviction under 40 CFR Section 15.10).  As soon as a conviction
occurs, the Director of the Office of Criminal Enforcement,
within the Office of Enforcement and Compliance Monitoring (OECM),
must verify the conviction and notify the Listing Official.  The
Listing Official sends written notification to the facility and
to the Federal Register.  Both documents must state the basis for
and the effective date of the mandatory listing.

     Removal from the mandatory list may occur only if:  (1) the
Assistant Administrator certifies that the facility has corrected
the condition that gave rise to the criminal conviction under
Section 113(c)(l) of the CAA or Section 309(c) of the CWA, or (2)
a court has overturned the criminal conviction.  The August 8,
1984, memorandum, "Implementation of Mandatory Contractor Listing,"
(GM-32) discusses the procedures for mandatory listing in more detail

     B.  Discretionary Listing

     1.  Basis for Discretionary Listing

     The following enforcement actions may serve as a basis for
discretionary listing if there is also a record of continuing or
recurring noncompliance at a facility:

          a.  A federal court finds any person guilty under Section
              113(c)(2) of the CAA, if that person owns, leases,
              or supervises the facility.

          b.  A state or local court convicts any person of a
              criminal offense on the basis of noncompliance with
              clean air or clean water standards if that person
              owns, leases, or supervises the facility.

          c.  A federal, state, or local court issues an injunction,
              order, judgment, decree (including consent decrees),
              or other form of civil ruling as a result of non-
              compliance with the CWA or CWA at the facility.

          d.  The facility is the recipient of a Notice of
              Noncompliance under Section 120 of the CAA.

          e.  The facility has violated an administrative order
              under:

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                                -2-
              '  CAA  Section 113(a)
              -a  CAA  Section 113(d)
              •  CAA  Section 167
              0  CAA  Section 303
              8  CWA  Section 309(a)

          f.  The facility is the subject of a district court
              civil enforcement action under:

                 CAA  Section 113(b)
                 CAA  Section 167
                 CAA  Section 204
                 CAA  Section 205
                 CAA  Section 211
                 CWA  Section 309(b)

     2.  The Discretionary Listing Process

     a.  Listing Recommendation and Notice of Proposed Listing

     The discretionary listing process begins when a "recommending
person" files a listing recommendation with the Listing Official.
Recommending persons may include any member of the public, Regional
Administrators, the Assistant Administrator for Air and Radiation,
the Assistant Administrator for Water, the Associate Enforcement
Counsel for Air, the Associate Enforcement Counsel for Water, and
the Governor of any State.  The recommendation to list:   (1) states
the name, address, and telephone number of the recommending person;
(2) identifies the facility to be listed, and provides its street
address and mailing address; and (3) describes the alleged continuing
or recurring noncompliance, and the requisite enforcement action
(see 40 CFR Section 15.11(b)).  The recommendation to list should
describe the history of violations in detail, including the specific
statutory, regulatory, or permit requirements violated.   In addition,
regional offices may include as attachments to the listing recommen-
dation documents prepared for other purposes, such as complaints,
litigation reports, and other explanatory material which  describes
the nature of the violations.  (See Attachments for model listing
recommendations.)

     The Listing Official must determine whether the recommendation
meets the requirements of Section 15.11(b).  If the recommendation
is sufficient and the Assistant Administrator for OECM decides to
proceed under Section 15.11(c), the listing official will contact
the regional office to ensure that it still wishes to proceed.   If
the decision is made to proceed, the listing official provides notice
of the proposed listing to the owner or operator of the affected
facility and provides the owner or operator of the facility 30
days to request a listing proceeding.  A listing proceeding is
not a formal hearing; rather, it is an informal administrative
proceeding presided over by an Agency Case Examiner.  If  the facil-
ity's owner or operator requests a listing proceeding, the Listing
Official must schedule it and notify the recommending person and

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                                -3-


the ovmer or operator of the date, time, and location of
the proceeding..'  The Assistant Administrator designates a
Case Examiner to preside over the listing over the listing
proceeding.I/

     b.  Listing Proceeding

     The Federal Rules of Civil Procedure and Evidence are not
used during listing proceedings.  The Agency and the facility may
be represented by counsel and may present relevant oral and written
evidence.  With the approval of the Case Examiner, either party
may call, examine, and cross-examine witnesses.  The Case Examiner
may refuse to permit cross-examination to the extent it would:
(1) prematurely reveal sensitive enforcement information which the
government may legally withhold, or (2) unduly extend the proceedings
in light of the usefulness of any additional information likely to
be produced (see Section 15.13(b)).  A transcript of the proceeding
along with any other evidence admitted in the proceeding constitutes
the record.  The Agency must prove each element of a discretionary
listing by a preponderance of the evidence (see Section 15.13(c)).

     The Case Examiner must issue a written decision within 30
calendar days after the proceeding.  The party adversely affected
may appeal the decision to the General Counsel.  The appeal, which
is filed with the Listing Official, must contain a statement of:
(1) the case and the facts involved, (2) the issues, and (3)
why the decision of the Case Examiner is not correct based on
the record of the proceeding considered as a whole.  The General
Counsel must issue a final decision, in writing, as soon as
practicable after reviewing the record.  The Listing Official
then must send written notice of the decision to the recommending
person and to the facility, and must publish the effective date
of the listing in the Federal Register if the General Counsel
upholds the Case Examiner's decision to list.

     c.  Removal from the List of Violating Facilities

     Removal from the List of Violating Facilities can occur in
any of the following circumstances:

          1.  Upon reversal or other modification of the
          criminal conviction decree, order, judgment, or
          Other civil ruling or finding which formed the
          basis for the discretionary listing, where the
          reversal or modification removes the basis for the
          listing;
I/ If the owner or operator of the facility does not make a timely
request for a listing proceeding, the Assistant Administrator will
determine whether to list the facility based upon the recommendation
to list and any other available information.

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                                -4-
          2.  If the Assistant Administrator for OECM
          determines that the facility has corrected the
          condition(s) which gave rise to the listing;

          3.  Automatically if, after the facility has
          remained on the discretionary list for one year
          on the basis of Section 15.11(a)(4) or Section
          15.11(a)(5) and a basis for listing under Sections
          15.11(a)(l), (2), or (3) does not exist; or

          4.  If the Assistant Administrator for OECM has
          approved a plan for compliance which ensures
          correction of the condition(s) which gave rise to
          the discretionary listing.

     The original recommending person or the owner or operator of
the facility may request removal from the list.  The Assistant
Administrator for OECM then must review the request and issue a
decision as soon as possible.  The Listing Official then must
transmit the decision to the person requesting removal.

     If the Assistant Administrator for OECM denies a request for
removal/ the requesting person may file a written request for a
removal proceeding to be conducted by a Case Examiner designated
by the Assistant Administrator.  The Federal Rules of Civil
Procedure and Evidence are not used during a removal proceeding.
The Case Examiner's written decision must be based solely on the
record of the removal proceeding.

     Within 30 calendar days after the date of the Case Examiner's
decision, the owner or operator of the facility may file with the
Listing Official a request for review by the Administrator.  The
Administrator will determine if the Case Examiner's decision is
correct based upon the record of the removal proceeding considered
as a whole.  The Administrator then must issue a final written
decision.

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VI. Q.

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VI. SPECIALIZED ENFORCEMENT TOPICS
    G. FEDERAL FACILITIES

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                                                          VI.G.I
"FEDERAL FACILITIES COMPLIANCE", dated January 4, 1984.  See
GM-25.*

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                                                  VI.6.2
"Federal  Facilities Compliance  Strategy,11  dated November,
1988.  See GM-25 (revised).

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VI. H.

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VI. SPECIALIZED ENFORCEMENT TOPICS




    H. OVERSIGHT AND STATE PROGRAM COORDINATION

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                                                                    VI.H.I,
"Implementing State/Federal Partnership in Enforcement: State/Federal
Enforcement Agreements", dated June 26, 1984.  Superseded by H.3, below.

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                                                                   VI.H.2.
Policy on Performance-Based Assistance, dated May 31, 1985.

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      ri
       ?   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C 20460
                          MffSIBB
                                               THE ADMINISTRATOR
MEMORANDUM

SUBJECT:  Policy on Performance-Bashed Assistance

FROM:     Lee M. Thomas

TO:       Assistant Administrators
          General Counsel
          Inspector General
          Associate Administrator
          Regional Administrators
          Staff Office Directors
          Division Directors


     I am pleased to issue the attached policy on EPA's perfor-
mance-based assistance to States.  This policy represents an
important step in the continuing effort to achieve environmental
results through a strong EPA/State partnership.

     Our assistance to States covers a wide range of continuing
environmental programs.  In the past, the process for developing
and managing assistance agreements has varied significantly among
programs and Regions.  This policy establishes an Agency-wide
approach toward negotiating assistance agreements, conducting
oversight of those agreements, and responding to key oversight
findings.  While the aim of the policy is a consistent approach
across Agency programs, it retains considerable flexibility for
Regions to tailor assistance agreements to the unique environ-
mental conditions of particular States.

 f    This policy is effective immediately*  The accompanying
Question and Answer Package explains how FY'86 assistance agree-
ments will be expected to comply with it and details the rationale
behind major policy components.

     The Deputy Administrator will monitor implementation of the
Policy on Performance-Based Assistance and issue special instruc-
tions as necessary.  I expect Assistant Administrators to advise
the Deputy Administrator of actions planned or taken to make their
program policies, guidance and procedures fully consistent with
this policy within thirty days.

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     Regional Administrators are responsible for ensuring that
their staffs and States receiver understand and begin to apply
this policy package to their assistance activities.  To assist
in its prompt and proper implementation, members of the task
force and staff instrumental in the development of this policy
have agreed to make Regional visits to explain and discuM it.

     I would like to commend the task force that developed this
policy, whose members included managers and staff from EPA's
Headquarters and Regions, and State Environmental Directors,
and representatives from the Washington-based Executive Branch
Organizations.  I believe they have done an excellent job and
hope their effort can serve as a model for future EPA/State
decision-making.

     I look forward to strong Agency commitment to this policy.
You can be assured of my full support as EPA and the States move
forward with its implementation.

Attachments

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             POLICY ON PERFORMANCE-BASED ASSISTANCE
     I am pleased to issue this EPA Policy on Performance-Based
Assistance.  This document was developed by a task force composed
of representatives from EPA Headquarters and Regions, State envi-
ronmental agencies and Executive Branch Organizations to establish
a consistent, Agency-wide approach toward negotiating and managing
assistance agreements with States.

   •  The three major components of the policy describe how assis-
tance agreements should be negotiated, how a State's performance
against negotiated commitments should be assessed, and what actions
should be taken to reward accomplishments and correct problems.
The overall approach is one of EPA/State cooperation in setting
and attaining environmental goals through effective State programs.

     I anticipate strong Agency commitment to the principles of
this policy and look forward to the strengthening of the EPA/State
partnership I believe will result from this approach.
                                    Lee M. Thomas            Date
                                    Administrator

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           EPA POLICY ON PERFORMANCE-BASED ASSISTANCE
PURPOSE
     This policy establishes an Agency-wide approach which links
U.S. EPA's assistance funds for continuing State environmental
programs to recipient performance.  The approach employs assistance
as a management tool to promote effective State environmental pro-
grams.  The policy's goal is the consistent and predictable appli-
cation of the performance-based approach across Agency programs
and among Regions.
      /
     Mechanisms for tying EPA assistance to a recipient's accom-
plishment of specific activities agreed to in advance are contained
in EPA's regulations governing State and Local Assistance (40 CFR
Part 35, Subpart A).  The degree and manner in which EPA programs
and Regions have applied these regulations has varied greatly.
Through this policy, the Agency articulates how it will consistently
manage its intergovernmental assistance.
SCOPE	


     EPA's Regions will be expected to implement the portions of
this policy governing the management of assistance agreements
("Oversight" and "Consequences of Oversight" sections) upon the
policy's issuance.  To the greatest extent possible, this policy
should also guide the negotiation of grants and cooperative
agreements for fiscal year 1986.

     This policy supersedes all previous policies on performance-
based assistance to the extent they conflict with the approach
outlined below.  It elaborates on regulations governing State and
and Local Assistance (40 CFR Part 35, Subpart A) promulgated
October 12, 1982, and the General Regulation for Assistance Programs
(40 CFR Part 30) promulgated September 30, 1983.  This policy does
not replace funding or grant/cooperative agreement requirements
established by Federal statutes or EPA regulations.  States applying
for Federal financial assistance are required to have adequate
financial management systems capable of ensuring proper fiscal
control.

     The policy complements and is in complete accordance with
EPA's Policy on Oversight of Delegated Programs (April 4, 1984)
and the Policy Framework for State/EPA Enforcement "Agreements"
(June 26, 1984).

     While this policy will refer to all assistance recipients as
"States" (since States receive most of EPA's assistance for con-
tinuing environmental programs), it applies equally to interstate
and local agencies which receive similar support.

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                              -2-
PRINCIPLES AND APPROACH
PRINCIPLES                                              __

     This policy on performance-based assistance is designed to
strengthen the EPA/State partnership by ensuring that EPA assis-
tance facilitates the implementation of national environmental goals
and promotes and sustains effective State environmental programs.
The policy provides a framework within which EPA and States can
clarify performance expectations and solve problems through a system
of negotiation, according to a predictable but flexible set of
national guidelines.  This framework is built around several funda-
mental principles which will also guide the policy's implementation:

     o EPA will use performance-based assistance as a management
       tool to promote and recognize the effective performance
       of State environmental programs, and to ensure mutual
       accountability;

     o EPA Regions and programs will retain flexibility to tailor
       the performance-based approach to their needs and the policy's
       guiding principles;
         4.

     o States and EPA should share a common set of expectations
       regarding performance commitments and likely responses
       to identified problems.  There should be no surprises as
       EPA and States relate to each other under this policy;

     o In negotiating State performance objectives, EPA and the
       States will seek realistic commitments and presume good
       faith in their accomplishment;

     o EPA and the States should maintain continuous dialogue
       for the rapid identification, solution and escalation
       of problems to top level managers;

     o EPA is fully committed to the success of State environ-
       mental programs and will seek opportunities to acknowl-
       edge their accomplishments.


APPROACH

     The policy consists of three basic parts.  The first section
describes components of assistance agreements and how they are to
be negotiated.  The second section lays out EPA's expectations for
the review and evaluation of assistance agreements and escalation
of significant findings.  The final section describes how EPA should
respond to the findings of oversight:  rewarding strong performance;
applying corrective actions to solve problems; escalating signif-
icant conflicts to top management; and, in cases of persistent per
formance problems, imposing sanctions.

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                              -3-


                       ASSISTANCE AGREEMENT
     Clear expectations for program performance are crucial to an
effective EPA/State partnership.  Annual assistance agreements pro-
vide a key vehicle for expressing these performance expectations.
Negotiated work programs, contained in an assistance agreement, form
a fundamental basis for evaluation of State performance.

     An assistance agreement should include three components:  1) a
work program; 2) identification of support (other than federal
assistance funds) a State needs from EPA to accomplish work program
commitments; and, 3) a monitoring and evaluation plan.


APPROACH

     EPA will require that the top national priorities as identified
in Agency guidance be explicitly addressed in all State work pro-
grams.  As EPA and States negotiate outputs, national priorities
should be tailored to the real environmental conditions of each State
and Region.

     Assistance agreements may include outputs based on a State's
priorities if those activities promise to deliver a greater environ-
mental benefit than a national priority.  State priorities should
represent only those activities allowable under Federal statutes.

     The appropriate mix of national and State priorities will vary
from work program to work program* according to the unique features
of each environmental program in each State.  Regional offices must
exercise their judgment and negotiate with States over what combina-
tion of national and State priorities can deliver the greatest
environmental benefit with resources available after EPA's top
national priorities have been addressed.

     To better facilitate the negotiation of assistance agreements,
the Agency's Operating Guidance should be strengthened through early
State involvement in defining the order and scope of Agency
priorities, a realistic consideration of funding limitations
throughout its development, and specific identification of top
priorities by Program Offices.

     The development and oversight of an assistance agreement should
be supervised by one senior Regional manager.  EPA Regional Admini-
strators are ultimately accountable for all assistance agreements
made with States and should be familiar with the significant
outputs and conditions of each agreement.  They will be respon-
sible for all major assistance-related decisions.

     Assistance agreements may be amended by mutual agreement of
the Regional Administrator and his/her State counterpart.  A major
change in national or State priorities, environmental emergencies,
and the discovery of greatly overestimated commitments are examples
of the types of circumstances which may necessitate renegotiation.

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                              -4-
WORK PROGRAM

     The work program should specify the outputs a State win pro-
duce under its federal assistance award (including the State match
and level of effort) and the resources and time frames fojL completing
the outputs.

     o Outputs should be measurable commitments, reflective
       to the extent possible of real environmental results.
       They should be ambitious but realistic commitments --
       achievable objectives rather than lofty goals.

     o Work programs should focus on the objectives a State
       will meet, not how the State will accomplish an output.

     o Past performance should affect work programs.  The good
       or poor performance of a State (or EPA) identified through
       oversight should influence the outputs and conditions
       contained in the next annual assistance agreement.

     o Work programs should specifically identify completion
       timeframes for outputs.  EPA may also specify interim
       milestones and reporting requirements based on the
       priority needs of national programs and in keeping with
       good management practice.  Reporting required under an
       assistance agreement should be consistent with.EPA1s
       information systems.

     o States should draft their work programs but may request
       assistance from EPA Regions in developing them.

     o States should be encouraged to volunteer a comprehensive
       work program that indicates activities, if any, outside
       those paid fo'r with the federal and State funds included
       in the federal assistance agreement budget.  Awareness
       of State responsibilites not related to federal assistance
       greatly enhances EPA's understanding of the scope of
       State environmental programs.  Should a State choose to
       submit plans for its entire program, it need not indicate
       resource levels, but only program activities.  EPA will
       not examine these activities in the course of assistance
       oversight except when necessary to ascertain the cause
       of a performance problem or to identify the corrective
       action which can best address a problem.


SUPPLEMENTAL EPA SUPPORT TO STATES

     An assistance agreement should describe the types of support
EPA will endeavor to provide in addition to an assistance award to
enable a State to meet its work program outputs.  Regions should
consult with Headquarters about support which will require Head-
quarters action.

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                              -5-


     o The assistance agreement should describe the specific
       research, technical advice, guidance, regulations,
       contractor assistance or other support EPA will furnish
       States to enable them to fulfill specific work program
       outputs, making clear that accomplishment of the outputs
       is contingent upon the receipt of the EPA support.  If
       EPA does not furnish the support described in the~assistance
       agreement, the State will be relieved of output commitments
       contingent upon that support.


EVALUATION PLAN

     The final component of an assistance agreement is a plan
for EPA's evaluation of State performance.  The evaluation plan
should be mutually acceptable to EPA and a State.

     o The plan should outline the schedule and scope of review
       EPA will conduct and should identify areas the evaluation
       will focus on.
                    3
     o An evaluation plan must specify at least one on-site
       review per year, performance measures, and reporting
       requirements.
	ASSISTANCE OVERSIGHT	


     EPA should oversee assistance agreements both informally and
formally.  Regions and States should maintain continuous dialogue
so that States may alert EPA to problems they are experiencing and
EPA can monitor State progress toward accomplishing outputs.  EPA
should also periodically conduct a formal evaluation of State per-
formance.  Oversight should identify the successes and problems
States have encountered in meeting their commitments.  Oversight
also entails the joint analysis of identified problems to determine
their nature, cause, and appropriate solution, and the escalation
of significant findings (both positive and negative) to top managers
in the Region and the State.


APPROACH

     The formal assessment of State performance under assistance
agreements should occur as part of EPA's comprehensive review
and evaluation of State programs.  This process is governed by
EPA's Policy on Oversight of Delegated Programs which states
that evaluations should focus on overall program performance
(within a given program), rather than individual actions; they
should be based on objective measures and standards agreed to
in advance; they should be conducted on-site at least once a
year by experienced, skilled EPA staff; they should contain no

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                              -6-


surprises for States regarding content or expectations? and
results should be documented in a written report.

     EPA should adhere to these principles of oversight and to
the scope and schedule of evaluation agreed to in the assistance
agreement.                                               _


FEATURES

o States are responsible for notifying EPA in a timely manner of
  problems they experience in trying to accomplish their outputs.
  Likewise, EPA is responsible for promptly notifying States of
  its inability to supply promised support.

o Formal and informal evaluations by EPA should be constructive,
  conducted in the spirit of promoting good performance through
  problem-solving, not fault-finding.

o EPA's review and evaluation should emphasize overall performance
  within each program, concentrating on the composite picture
  revealed by total outputs and the quality of accomplishments.

o EPA should focus on a State's performance against work program
  outputs and conditions unless other aspects of a State's program
  (procedures, processes, other activities) must be examined to
  analyze a problem or find its appropriate solution.

o Formal review of State performance under the assistance agreement
  will entail, at a minimum, one on-site annual evaluation of each
  assistance agreement.

o Review and evaluation of assistance agreements should be con-
  ducted by skilled/ experienced EPA evaluators.

o Oversight findings, successes as well as problems, should be
  documented to establish an accurate record of State performance
  over time.

o Assistance oversight should use existing reporting and evaluation
  mechanisms to the extent possible.
	CONSEQUENCES OF OVERSIGHT	


     Once the assistance oversight process has identified and
documented areas in which States have had success or difficulty
in meeting their commitments under the assistance agreement, EPA
should respond to those oversight findings.  Potential responses
range from rewards and incentives for good performance, application
of corrective actions to solve uncovered problems, and the imposi-
tion of sanctions to address persistent, serious performance
leras.

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                              -7-
APPROACH TO OVERSIGHT RESPONSE

     The Agency's goal in providing performance-based assistance
is to promote national program objectives by supporting effective
State environmental programs.  Actions in response to oversight
findings will be oriented toward finding the most effective
ways to maintain or improve a State program's performance-.
Wherever possible, EPA should acknowledge .excellent performance
and help States solve problems which impede performance through
corrective actions.

     If problems regarding State achievement of work program
commitments persist, EPA should pursue corrective steps as
necessary based on experience with a given State.  In general,
sanctions should be imposed only when corrective actions have
failed to solve persistent, significant performance problems.
Before taking any sanction against a State, EPA should raise
the performance issue to the highest levels of the Region and
State necessary to negotiate an effective solution to the
underlying problem.  Sanctions should not be necessary if both
parties are explicit, straightforward and realistic in their
expectations of one another and approach the assistance agreement
process in the spirit of cooperation.


INCENTIVES

     o When a State meets its negotiated commitments or other-
       wise demonstrates success, the EPA Regional Office
       should take steps to acknowledge excellent State
       performance at the conclusion of the oversight review
       or at the end of the assistance agreement period.

     o EPA is committed to publicizing State program success.
       Assured recognition of a State's environmental achievements
       is one of the most effective incentives at EPA's disposal.
       Publicizing accomplishments also benefits States with per-
       formance problems by providing them with models for success.

     o In general, when a State demonstrates steady progress or
       a sustained level of high performance against negotiated
       commitments, EPA will institute the most appropriate rewards
       for achievement and incentives to promote continued success.
       Possible actions include but are not limited to:

           -  Reducing the number, level, scope and/or
              frequency of reviews, reporting, or in-
              spections to the minimum necessary for
              effective national program management;

              Increasing State flexibility in using funds
              for special projects or State priorities;

              Offering financial incentives (within existing
              resources), such as supplemental funding;

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                              -8-


              Publicizing program successes through joint
              media presentations, awards,  special letters
              of commendation to the Governor, or technology
              transfer to other States,  EPA Regions and
              Headquarters.


CORRECTIVE ACTIONS

     o When oversight review uncovers a  performance problem and
       determines its cause, EPA and the State must act on those
       findings by taking appropriate corrective steps.

     o Regions must initiate discussions with those States where
       problems have emerged, and work cooperatively with them to
       establish effective remedial strategies.   This negotiated
       strategy should specify the time  frame during which EPA will
       expect the problem to be resolved, and any interim milestones
       that will be necessary to monitor State progress.

     o Regions and States should follow  a corrective action strat-
       egy based on the unique history and needs of a given State.
       This policy does not prescribe any particular sequence of
       corrective actions which must be  undertaken, nor does it
       link specific corrective actions  to particular types of
       performance problems.

     o Possible corrective actions include but are not limited to:
       providing EPA technical or managerial assistance, training,
       or additional resources; increasing the number and/or fre-
       quency of reporting and oversight requirements; and shifting
       State resources or otherwise renegotiating the assistance
       agreement.

     o If a Region is not able to provide a particular essential
       type of specialized assistance to a State, the Region should
       bring this corrective action requirement to the attention
       of Headquarters program managers  for action as appropriate.

     o The intent of this policy is to see that EPA assumes a
       constructive approach in responding to State performance
       problems.  When corrective actions have failed, or EPA and
       a State cannot agree on a corrective action, the Region
       may consider imposing a sanction.  If a sanction is contem-
       plated, the performance issue should be escalated to the
       highest appropriate level of EPA  and the State.  The follow-
       ing sequence should be observed whenever possible to ensure
       that significant problems receive prompt attention and are
       solved expeditiously:

         a.  The Regional Division Director responsible for
             managing the assistance agreement will raise the
             issue to the attention of the Deputy Regional
             Admininstrator or Regional  Administrator and advise
             his/her State counterpart of this notification.

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                              -9-
             The Regional Administrator will personally contact
             the State Environmental Director or other appropriate
             State manager to attempt to reach agreement on a
             corrective action, and to discuss the contemplated
             sanction.

             National Program Managers should be advised"of any
             State program problems warranting a sanction,  and
             should be notified of any final decision to take
             such action*

             If negotiations between the Regional Administrator
             and State counterpart fail to solve the problem,
             the Regional Administrator should judge under  what
             circumstances notification of the Governor should
             occur.
SANCTIONS
     o Regional Administrators must recognize that national re-
       sponsibility for any State environmental program continues
       after the imposition of a sanction.   They should make ar-
       rangements for completion of crucial outstanding outputs
       and should take steps to promote and sustain activities
       the State is performing effectively.

     o As with corrective actions, any decision to impose a
       sanction must be based on EPA's particular experience
       with any given State»  The Regional  Administrator is
       responsible for determining when a problem may be signif-
       icant enough to warrant such action, and for determining
       the appropriate type of sanction to  apply.

     o Current regulations detail those sanctions traditionally
       available to EPA*  They include:  stop-work actions,
       withholding payment, suspension or termination of agree-
       ment for cause, agreement annulment, and other appropriate
       judicial or administrative actions.

     o Adjusting the schedule for award or  payment of assistance
       funds to quarterly, semi-annual, or  other similar restrictive
       disbursement schedules is considered a sanction under the
       terms of this policy.  (The customary mechanisms for the
       release of funds, such as standard letter of credit
       procedures, are not affected by this policy.)

     o 40 CFR Part 30 Subpart L details formal procedures for
       resolving EPA/State disputes concerning assistance
       agreements.  These procedures provide the opportunity
       for a State to document the grounds  for any objections
       to the imposition of a sanction and  for EPA to review
       its decision and address the State's objections on the
       basis of a written record.

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            Policy on Performance-Based Assistance
                  Question and Answer Package


PURPOSE

1.  What is the purpose of this policy?

         This policy lays out a framework for managing"EPA1s
    assistance to States for continuing environmental-programs.
    It ties performance against negotiated work program outputs to
    federal financial assistance funds.  It provides a consistent
    approach for managing assistance programs through negotiating
    work outputs, overseeing States' performance against agreed
    upon commitments, solving problems through corrective action
    strategies, and imposing sanctions when corrective actions
    have failed or EPA and a State cannot agree on a corrective
    action strategy.

         Although the policy aims for a consistent approach toward
    managing assistance agreements, it provides Regional managers
    with flexibility to use their best judgment in applying the
    provisions of this policy to specific conditions that exist
    within their Regions and among programs.


TIMING

2.  How will this policy affect FY'86 assistance agreements?

         Any FY'86 assistance agreement negotiated after the
    issuance of this policy will be expected to conform to
    all of its provisions.

         Assistance agreements for FY'86 agreed upon prior to
    the issuance of the Policy on Performance-Based Assistance
    will not have-to be renegotiated.  However, EPA's Regions
    will be expected to manage those assistance agreements
    according to the approach outlined in the "Oversight" and
    "Consequences of Oversight" sections of the policy.

         FY'86 assistance agreements may be amended if a Region
    and State both agree to do so, under the terms of governing
    regulations.

         All assistance agreements for FY'87 will be negotiated
    and managed according to this policy.


PRIORITIES

3.  Why should EPA assistance support some State priorities
    in addition to national priorities?

         "State priorities" refer to activities which are allow-
    able for funding under federal statutes and which, although
    not always important enough nationwide to warrant a place

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                              -2-
    on or at the top of the national priority list, are of.
    great concern to a particular State due to that State's
    unique environmental conditions*  Recognizing that each of
    EPA1s continuing environmental programs requires a combination
    of Federal and State resources, EPA may direct sora_e-of its
    assistance to support what States view as their most
    significant initiatives, if those activities promise to
    deliver a greater environmental benefit than a national
    priority. (National priorities include Regional priorities).
    In many instances, a State's priority activities will cor-
    respond closely to the list of national priorities in a
    given program, but the State may wish to distribute resources
    among those activities with a slightly different emphasis.
    The Regions have flexibility under this policy to negotiate
    support for those activities, consistent with Program
    Guidance.


4.  How is the proper balance between national and State
    priorities to be achieved?

         The appropriate mix of national and State priorities
    will vary from work program to work program, according to
    the unique features of each environmental program in each
    State.  After ensuring that top national priorities as
    identified in the Agency Operating Guidance and Regional
    Guidance are included in a work program, Regional officials
    must exercise their judgment and negotiate with a State
    over what combination of national and State priorities can
    deliver the greatest environmental benefit given the remaining
    resources available.
GUIDANCE

5.  How should the Agency Operating Guidance be refined to
    facilitate improved work planning?

         EPA's annual Operating Guidance should clearly arti-
    culate national priorities.  The Agency Priority list should
    be limited to those top priorities across all media.  Each
    Program Office should also list priority activities in its
    media area, ranking them and identifying those which must
    be reflected in every State work program.  The Program Office
    and Agency priority lists should complement one another.
    EPA will involve states early on in defining the order and
    scope of Agency and Program Office priorities.

         EPA Regions should negotiate work program outputs based
    upon priorities as identified and ranked in the Guidance.
    Carefully delineated priorities will help ensure work programs
    that contain clear and measureable output commitments.

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                              -3-
ESCALATION

6.  What is the purpose of the escalation sequence outlined in
    the policy?

         The Policy on Performance-Based Assistance establishes
    a problem-solving approach toward managing EPA assistance to
    States.  It has been designed to promote the prompt identi-
    fication and resolution of any problems States encounter in
    trying to fulfill the output commitments they agree to meet.
    The purpose in laying out a process by which issues can be
    surfaced quickly up the chain of command in both Regions and
    States is to ensure that significant problems receive the
    prompt attention of managers capable of solving those problems
    expeditiously.  This sequence was included in the policy to
    address concern that State performance problems too frequently
    lie unattended at the lower levels of Regions and States where
    they become bigger problems.

          While this process calls for consultation with State
    representatives and notification of the National Program
    Manager, EPA's Regions are responsible for managing the
    escalation sequence and rendering any final decision to
    impose a sanction.


7.  Under what circumstances should the escalation sequence be
    followed?

         The escalation sequence was designed specifically as a
    mechanism for obtaining quick decisions on whether EPA will
    impose a sanction on a State demonstrating performance pro-
    blems.  By establishing a predictable process for addressing
    these major conflicts, the policy seeks to expedite, not en-
    cumber with formality, resolution of the most serious problems
    likely to be encountered in an assistance relationship.  While
    this escalation sequence applies uniquely to decisions regarding
    sanctions, the policy encourages the escalation of any signi-
    ficant information (positive and negative) regarding the per-
    formance of a State program within both Regions and States as
    appropriate.


QUARTERLY DISBURSEMENTS

8.  Why does this policy classify quarterly disbursement schedules
    (or similar restrictive disbursement schedules) as sanctions?

         Quarterly disbursement schedules involve awarding a
    portion of a State's grant each quarter or imposing quarterly
    performance-based restrictions on standard payment procedures.
    The Task Force agreed that putting States on quarterly or
    semi-annual disbursement schedules makes it difficult for

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                             -4-


     States to plan their programs, which are generally based on
     a yearly cycle.  The Task Force felt that this type of action
     would signify a lack of faith in a State's ability to perform.
     Consequently, the Task Force viewed this type of action as a
     sanction which would reflect a State's inability to-perforra.
     As with other sanctions, quarterly disbursement schedules,
     should not be imposed before attempting to resolve the problem
     through more cooperative efforts (corrective actions) or after
     a demonstration of continued past performance problems by a
     State.  As with all sanction decisions, the decision to place
     a State on a quarterly disbursement schedule should be made
     at the highest level of the Region.

          A quarterly disbursement schedule signifies that the
    •recipient's performance would be reviewed after each quarter
     to determine whether full release of funds would be made
     for the next quarter.  Under the policy, putting a State
     on this type of schedule is considered to be a sanction.


 9.  Does this policy affect draw-downs under the letter of credit
     or other payment mechanisms?

          The customary mechanisms for the release of funds are
     not affected by this policy.  For example, letter of credit
     procedures, which are used by most Regions, provide a
     system whereby the recipient may promptly obtain the funds
     necessary to finance the Federal portion of a project, and
     which precludes the withdrawal of funds from the Department
     of the Treasury any sooner than absolutely necessary.
     (Payment procedures are described in the Assistance Admini-
     stration Manual, 12/3/84, Chapter 33.)  However, to the
     extent that Regions impose performance-related restrictions
     on letter of credit or other payment mechanisms, these
     restrictions would be considered a sanction under the policy.


10.  How will this policy affect States currently on quarterly
     disbursement schedules?

          Currently, a number of States are on quarterly disburse-
     ment schedules, primarily under the RCRA program.  This policy
     does not prohibit the practice of imposing a quarterly schedule
     on a State, but it does consider this practice a sanction.
     It is not necessary to amend FY'85 or FY'86 assistance agree-
     ments that already place States on quarterly disbursement
     schedules.  However, States should not automatically be either
     extended or taken off of quarterly schedules for the following
     year's grant cycle.  In deciding whether to continue or dis-
     continue quarterly disbursements, Regions should review State
     performance.  A decision to continue or discontinue a quarterly
     schedule should be based on the presence or absence of
     performance problems, or successful or unsuccessful attempts
     to resolve the problems through corrective steps.  Regional
     and programatic differences call for Regional managers to
     use their best judgment in making such decisions.

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                               -5-


11.  What does this policy imply for withholding funds for
     problems that are not directly related to a State's perfor-
     mance of negotiated outputs under the assistance agreement?

          This policy relates primarily to a State's performance
     of negotiated outputs under an assistance agreement  The
     decision to withhold funds from a State for output-related
     problems is a sanction which should be preceded by appropriate
     corrective actions and notification of high-level managers.
     However, funds are sometimes withheld for problems not directly
     related to a State's accomplishment of negotiated outputs
     under an assistance agreement.  This may occur as a result
     of problems with a State's financial reporting and accounting
     system.  For problems resulting from improper fiscal manage-
     ment or administrative practice (but not directly related to
     a State's performance on work outputs), the Regions may with-
     hold funds in accordance with governing regulations.


OTHER QUESTIONS AND ANSWERS


12.  Do assistance administration procedures need to be changed?

          No.  The policy was developed carefully so as not to
     conflict with the Agency's existing procedures for managing
     assistance agreements.  Procedural details for administration
     are provided in the current (12/3/84) Assistance Administrati
     Manual and they are consistent with the policy.


13.  Why does the policy encourage the submission of comprehensive
     State work plans but not require them?

          The current policy is consistent with existing regulations
     for State and Local Assistance (40 CFR Part 35, Subpart A).
     The policy encourages but does not require States to volunteer
     a comprehensive work program that indicates all activities
     the State is conducting under its environmental program.


14.  Why does this policy call for a mutually acceptable evaluation
     plan?

          The policy calls for EPA's evaluation of State performance
     to be described in a plan that is mutually acceptable to EPA
     and the State before the assistance agreement is finalized.
     This is consistent with the regulation which calls for the
     Regional Administrator to develop an evaluation plan in consul-
     tation with the State, and it reflects the principles of EPA's
     Policy on Oversight of Delegated Programs.  Under the policy,
     changes to the original evaluation plan could occur as corr-
     ective actions.

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                               -6-
15.  How can the assistance agreement be amended?

          Both the policy and the regulation allow for the assist-
     ance agreement to be amended at any time by mutual agreement
     between the Regional Administrator and the State._Tither
     party (State or Region) may ask for amendment of the assist-
     ance agreement.  (See 40 CFR Part 30-700, Subpart G.)


16.  Do Regions have discretion to devise corrective action
     strategies and determine the timing and sequence of
     corrective actions?

          Yes.  Regions should attempt to implement corrective
     action strategies which respond to the problem in a  timely
     and appropriate manner.


17.  Why doesn't the policy deal with the "quality" of outputs?

          While this Policy on Performance-Based Assistance
     focuses on State performance against measureable outputs,
     it complements and is in complete conformance with EPA's
     Policy on Oversight of Delegated Programs, which calls for
     review and evaluation activities which ensure quality
     State programs.  Most of EPA's programs have instituted
     evaluation programs which examine not only "beans,"  but
     the quality of those beans.  The oversight of work program
     outputs should occur as part of a comprehensive examination
     of State program performance.


18.  How do State output commitments relate to SPMS commitments?

          EPA should always discuss with States any State
     commitments to be included in EPA's Strategic Planning
     and Management System.  Under a system of performance-based
     assistance, it is imperative that work program outputs which
     are also SPMS commitments be agreed upon in advance  by Regions
     and States.  Since poor performance may have fiscal  consequences
     under a performance-based system, it would be unfair to hold
     States accountable for SPMS measures they were not aware of
     or did not accept.

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                                                                   VI.H.3.
"Revised Policy Framework for State/EPA Enforcement Agreements", dated
August 25, 1986 (Supersedes H.I).  See also GM-41, revised.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                              AUG 2 5 1986
                                                           OFFICE OF

                                                        THE ADMINISTRATOR
MEMORANDUM

SUBJECT:  Revised Policy Framework for State/EPA Enforcement
          Agreements

FROM:     A. James Barnes
          Deputy Administrate

TO:       Assistant Administrators
          Associate Administrator for Regional Operations
          Regional Administrators
          Regional Counsels
          Regional Division Directors
          Directors, Program Compliance Offices
          Regional Enforcement Contacts


     I am pleased to transmit to you a copy of the Agency's
revised Policy Framework for State/EPA' Enforcement Agreements.
The Policy Framework, originally developed in 1984, along with
program-specific implementing guidance,  will continue to serve as
the blueprint for our State/EPA enforcement relationship.  The
revised Policy Framework integrates new guidance developed since
its original issuance.  It reinforces the Guidance for the FY
1987 Enforcement Agreements Process which I transmitted to you on
April 15, 1986 and should serve as your guide for negotiations
and implementation of the Enforcement Agreements.

     Although the intent of the revisions was to incorporate new
policy, the process gave the Agency, with the assistance of the
Steering Committee on the State/Federal Enforcement Relationship,
an opportunity to reassess with the States our original approach.
This process has clearly reaffirmed that the basic approaches we
put in place in 1984 for an effective working partnership are
sound and that all parties continue to be committed to its effective
implementation .

     The revisions incorporate into the Policy Framework addenda
developed over the past two years in the areas of oversight of
State civil penalties, involvement of the State Attorneys General

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                               -2-
in the Enforcement Agreements process, and implementation of
nationally managed or coordinated cases.  The revisions also
reflect, among other things, some of the points that have been
emphasized in my annual guidances on the Enforcement Agreements
process, the Evaluation Report on Implementation of the Agreements,
and the Agency's Criminal Enforcement and Federal Facilities
Compliance draft strategies.

     I am firmly committed to full and effective implementation
of the Policy Framework and am relying on your continued.personal
attention to this important effort.  I plan to review the Region's
performance in implementing the revised Policy Framework and the
program-specific guidance, particularly the "timely and appropriate"
enforcement response criteria, as part of my semi-annual regional
visits.

     I encourage you to share the revised Policy Framework with
your-State counterparts.

Attachments

cc:  Steering Committee on the State/Federal Enforcement
       Relationship

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POLICY FRAMEWORK FOR STATE/EPA
    ENFORCEMENT AGREEMENTS
                        August 1986
                (originally issued June 1984
                OFFICE OF ENFORCEMENT
                  AND COMPLIANCE MONITORING

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     POLICY FRAMEWORK FOR STATE/EPA ENFORCEMENT AGREEMENTS1/
     Achieving and maintaining a high level of compliance with
environmental laws and regulations is one of the most important
goals of Federal and State environmental agencies, and is an essential
prerequisite to realizing the benefits of our regulatory programs.
While States and local governments have primary responsibility for
compliance and enforcement actions within delegated or approved
States, EPA retains responsibility for ensuring fair and effective
enforcement of Federal requirements, and a credible national deterrence
to noncompliance.  An effective State/Federal partnership is critical
to'accomplishing these goals, particularly given limited State and
Federal resources.  The task is difficult and one of the most sensi-
tive in the EPA/State relationship, often compounded by differences
in perspectives on what is needed to achieve compliance.

     To establish an effective partnership in this area, and
implement the State/Federal enforcement relationship envisioned
in the Agency Oversight and Delegation policies, EPA called for
State-specific enforcement agreements to be in place beginning
FY 1985 which will ensure there are:  (1) clear oversight criteria,
specified in advance, for EPA to assess good State —or Regional—
compliance and enforcement program performance; (2) clear criteria
for direct Federal enforcement in delegated States with procedures
for advance consultation and notification; and (3) adequate State
reporting to ensure effective oversight.

     This document is the Agency's policy framework for implementing
an effective State/Federal enforcement relationship through national
program guidance and Regional/State agreements.  It is the product
of a Steering Committee effort involving all major national EPA
compliance and enforcement program directors, State Associations,
State officials from each of the media programs, and the National
Governors' Association.  EPA anticipates that the relationship, and
the use of the agreements first established in FY 1985, will evolve
and improve over time.  They will be reviewed, and updated where
necessary, on an annual basis.  The Policy Framework will be subject
to periodic review and refinement.  Originally issued on June 26,
1984, the Policy Framework has been updated to reflect additional
guidance developed since that time.
   The term Enforcement Agreement is used throughout to describe the
   document(s), be it an existing grant, SEA, MOD, or separate
   Enforcement Agreement, which contains the provisions outlined in
   the Policy Framework and related media-specific guidance.  (See
   »-i 4 f-^v *~ - fv •!-)*- i on of

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Policy Framework Overview

     The Policy Framework applies both to Headquarters program
offices in their development of national guidance and to Regions
in tailoring program guidance to State-specific needs and agreements.
Although enforcement agreements are not required for States which
do not have delegated or approved programs, Regions are encouraged
to apply to these States certain policies and provisions where
relevant, particularly advance notification and consultation
protocols.  The Policy Framework is divided into six sections, to
address the following key areas:

A.  State/Federal Enforcement "Agreements";  Form, Scope and
    Substance (pages 4-7)

   * This section sets forth for Regions and States developing
   ^enforcement agreements, the areas that should be discussed,
    priorities, and the degree of flexibility that Regions have in
    tailoring national guidance to State-specific circumstances,
    including the form and scope of agreements.

B.  Oversight Criteria and Measures;  Defining Good Performance
    (pages 8-17)

    This section is primarily addressed to EPA's national programs,
    setting forth criteria and measures for defining good performance
    generally applicable to any compliance and enforcement program
    whether administered by EPA or a State.  It forms the basis for
    EPA oversight of State programs.  A key new area that should
    receive careful review is the definition of what constitutes
    timely and appropriate enforcement response, Section B, Criterion
    #5, pages 11-13.

C.  Oversight Procedures and Protocols (pages 18-20)

    This section sets forth principles for carrying out EPA's
    oversight responsibilities, including approach, process and
    follow-up.

D.  Criteria for Direct Federal Enforcement in Delegated States
    (pages 21-25)

    This section sets forth the factors EPA will consider before
    taking direct enforcement action in a delegated State and
    what States may reasonably expect of EPA in this regard
    including the types of cases and consideration of whether a
    State is taking timely and appropriate enforcement action.
    It also establishes principles for how EPA should take enforce-
    ment action so that we can be most supportive of strengthening
    State programs.

E.  Advance Notification and Consultation (pages 26-30)

    This section sets forth EPA's policy of "no surprises" and
    what arrangements must be made with each State to ensure the

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    policy is effectively carried out by addressing planned
    inspections, enforcement actions, press releases, dispute
    resolution and assurances that publicly reported performance
    data is accurate.

F.  State Reporting (pages 31-35)

    This section sets forth seven key measures EPA will'use, at a
    minimum, to manage and oversee performance by Regions and
    States.  It summarizes State and regional reporting requirements
    for:  (1) compliance rates; (2) progress in reducing significant
    non-compliance; (3) inspection activities; (4) formal adminis-
    trative enforcement actions; and (5) judicial actions, at
    least on a quarterly basis.  It also discusses required
    commitments for inspections and for addressing significant
    non-compliance.

    In addition, it sets forth State and regional requirements for
    recordkeeping and evaluation of key milestones to assess the
    timeliness of their enforcement response and penalties imposed
    through those actions.

Appendices

    Appendix A:  Annual priorities and implementing guidance
    provides a list of the annual priorities for implementing the
    enforcement agreements and a summary index of what national
    program guidance has been or will be issued by programs to
    address the areas covered by the Policy Framework for State/EPA
    Enforcement Agreements.

    Appendix B:  Addendum to the Policy Framework on "Implementing
    Nationally "Managed or Coordinated Enforcement Actions,"
    issued January 4, 1985.

    Appendix C:  Guidance on "Division of Penalties with State
    and Local Governments," issued October 30, 1985.

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A. STATE/FEDERAL ENFORCEMENT AGREEMENTS:  FORM, SCOPE, AND SUBSTANCE
     This section sets forth the form, scope and substance of the
State/Federal Enforcement Agreements as well as the degree of
flexibility Regions have in tailoring national policy td individual
States.

1.  What Form Should the Agreements Take?

     We do not anticipate the need for a new vehicle or document
for the State/Federal enforcement agreements.  Wherever possible,
State/Federal agreements should be set forth in one or more of
a number of existing formats:  grant agreements, State/EPA Agreements,
Memoranda of Agreement or Understanding or a statement of Regional
Office operating policy.  Where there are new documents the
appropriate linkage should be made to grants and SEA's as applicable.
To the extent the areas covered by this Policy Framework translate.
into specific output commitments and formal reporting requirements',
they may belong in the grant agreements as specified in national
program grant guidance.  Regions should discuss with the States
at an early stage in the planning process their views on both the
form and substance of the agreements.  Once the basic agreements
are in place, Regions should consider most aspects of the written
agreements as multi-year, minimizing the need to renegotiate the
agreements each year.  Regions should conduct an annual review
with the States to identify needed revisions and additions to the
agreements to address identified problems or reflect further national
guidance.

2.  What is the Scope of the Agreements?

     This guidance and the State/EPA agreements cover all
aspects of EPA's civil compliance and enforcement programs,
including those activities involving Federal facilities.  The
criminal enforcement program is not included and will be addressed
elsewhere.

     Discussions between EPA Regions and States should cover the
minimum areas listed below:

     o  Oversight Criteria and Measures;  Good Performance Defined
        —See Section B.

     o  Oversight Procedures and Protocols — See Section C.

     o  Criteria for Direct EPA Enforcement -- See Section D.

     o  Procedures for Advance Notification and Consultation -- See
        Section E.

     o  Reporting Requirements — See Section F.

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However, Regions and States are not expected to duplicate national
Program guidance in their agreements — we are not looking for
lengthy documents.  Written agreements resulting from these
discussions could cover topics which are not clearly specified
elsewhere.  If not otherwise specified, national policy,will apply
and should be so stated in the state agreements.  Although not
required for non-delegated or unapproved programs, Regions are
encouraged to apply certain policies and provisions where relevant,
particularly advance notification and consultation protocols.

     This Policy Framework and the resulting State/EPA Enforcement
Agreements are intended to enhance enforcement of State and
Federal environmental laws.  Each agreement should be careful
to note that nothing in them or this Policy Framework constitutes
©recreates a valid defense to regulated parties in violation of
environmental statutes, regulations or permits.

3.  Parties to the Agreements and Participants in the Process.

     It is important to involve the appropriate State and regional-
personnel early in the agreements process.  In the Regions, this
means involving the operating level program staff and the Regional
Counsel staff along with top management; and in the States it
means the participation of all the organizational units responsible.
for making enforcement work, e.g., State program staff, those
responsible for oversight of field operations, staff attorneys,
and the State Attorneys General (AG).  The State agency should
have the lead in establishing effective relationships with the
State AG or State legal staff, as appropriate.  The Regions
should ensure that there is adequate communication and coordination
with these other participants in the enforcement process.  States
are strongly encouraged to commit advance' notification and
consultation procedures/protocols between the State agency and
the State AG (or State legal staff, as appropriate) to writing.
The Region should seek to incorporate these written protocols
into the State/EPA Enforcement Agreements (See discussion on
pages 17 and 26-27) .

4.  What Flexibility do Regions Have?

     Regions must be allowed substantial flexibility to tailor
agreements to each State, as the agreements process is intended
to be based upon mutual understandings and expectations.  This
flexibility should be exercised within the framework of national
program policy and the Agency's broad objectives.  Specifically/

     a. Oversight Criteria;

Oversight criteria would generally be provided in national
program guidance but Regions should tailor their general oversight
to address environmental and other priorities in the Region or
State, and other specific areas of concern that are unique to
an individual State, including any issues raised by the scope
of State enforcement authorities, unique technical problems and
available expertise, and areas targeted for improvement.

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     In addition,  Regions and States should adapt national
timely and appropriate enforcement response criteria to State-
specific circumstances to fit State authorities and procedures
as follows:

     (i) Timeliness;   The national program guidance on Key
     milestones and timeframes should be applied to all States
     with adjustments to accommodate each State's laws and legal
     procedures.  Such adjustment can be important particularly
     where the proposed enforcement action cannot possibly take
     place within  the proposed timeframes or where a State
     chooses to address problems more expeditiously than the
     Federal guidelines.  The trigger points should be realistic
     expectations, but within modest variance from the nation