EPA
DECM
OWEP
CLEAN WATER ACT
Compliance/Enforcement
Compendium
Volume III
-------
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
B. PRETREATMENT
-------
VI.B.I
"Coordination Between Regional Enforcement and Water Programs Personnel in
Implementing the National Pretreatment Program", dated November 29, 1978.
-------
-------
! 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.
-------
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.
-------
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
-------
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
-------
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.
-------
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.
-------
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
-------
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.
-------
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.
-------
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.
-------
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
-------
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
-------
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.
-------
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
-------
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.
-------
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.
-------
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;
-------
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
-------
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
-------
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.
-------
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.
-------
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..
-------
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.-' .
-------
"=::-.- VLB.2.
"Incorporation of Pretreatment Program Development Compliance Schedules
into POTW NPDES Permits", dated January 28, 1980.
-------
IfcJi
-------
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)
-------
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
-------
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?
-------
~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
-------
VLB.3.
"Statutory Deadlines for Compliance by Publicly Owned Treatment Works Under
the CWA", dated March 4, 1983.
\iol9
-------
-------
^
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.
-------
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.
-------
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
-------
- 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.
-------
VLB.4.
"Example Language for Modifying NPDES Permits for Pretreatment Program
Approval", dated September 22, 1983.
-------
-------
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.
-------
- 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
-------
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.
-------
- 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.
-------
- 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.
-------
- 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.
-------
- 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.
-------
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.
-------
- 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));
-------
- 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.
-------
- 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).
-------
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).
-------
- 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.
-------
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:
-------
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.
-------
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
-------
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 .
-------
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.
-------
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)
-------
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
-------
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>
\
-------
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.
-------
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.
-------
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.
-------
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
-------
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
-------
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
-------
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
$3201
T*iegnon« 414 744.3333
March 28, 1984 MAR 2 9 1934
UUSO
IN3VSTRW. WASTE
Mr. John L. Schultz
Milwaukee Metropolitan Sewerage District
Industrial Waste Section
735 North Water Street
Milwaukee, WI 53202
Dear Mr. Schultz:
We have received your letter of March 6, 1984, concerning EPA categori-
cal pret reatroer.t standards for the electroplating and metal finishing
point source categories. We have also reviewed the materials previous-
ly sent to us on January 9, 1984, concerning the applicability .of these
regulations "to' the operations of the Milwaukee Plant.
In a telephone conversation with Mr. Terry Yakich of your agency on
March 21, 1934, we explained that the reason we did not respond to your
request for basel ine' monitoring reports is that Caterpillar Tractor Co.
filed a petition for review of these regulations in the U. S. Court of
Appeals for the Seventh Circuit on .October 26, 1983. The case was then
transferred to the U. S. Court of Appeals for the Fourth Circuit and
consolidated with certain other cases challenging the saoe regulations.
On February 28, 1984, Caterpillar filed a motion to stay the applica-
tion of the regulations to its various, facil it ies , and this, mot ion is
presently under -consideration .by the Court... . ./
Since application of the electroplating and metal finishing regulations
to Caterpillar's facilities is in litigation and the subject of pending
eotions, we believe -it is ;not 'appropriate to. respond to your .request .
for baseline monitoring reports at this time. We trust that this is
fully responsive to your inquiry.
Sincerely,
Plant Manager
RF.Gallagher
Telephone: (414) 747-4201
dk
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR19B84
*~ OFFICE or
Mr. William K. Slate, II G«N«I»AL COUNSEL
Clerk, United States Court
of Appeals for the Fourth Circuit
U.S. Courthouse
10th & Main Streets
Richmond, VA 23219
Re: Caterpillar Tractor Co. v. EPA and Related Cases
Nos. 83-1930(L), Nos. 83-19$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
-------
VLB.10.
"Guidance to POTWs for Enforcement of Categorical Standards", dated
November 5, 1984.
-------
-------
^, \ 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.
-------
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.
-------
-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:
-------
-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.
-------
-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
-------
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.]
-------
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
-------
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
-------
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.
-------
- 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.
-------
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
-------
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
-------
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.
-------
- 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
-------
VLB.11,
.'. .- '-....:_*':' ./.!..»., -»i- ..... . .'
PRETREATMENT MULTI-CASE ENFORCEMENT INITIATIVE", dated December 31,
1984. Attachments A and B excluded.
-------
-------
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.
-------
-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 Cthe Pretreatment Program S.ubmi.tt'al
Information Sheetfor 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).
-------
-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.
-------
-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.
-------
VLB.12.
"EXAMPLE PERMIT LANGUAGE REQUIRING POTWS TO IMPLEMENT PRETKEATMENT
PROGRAMS", dated February 22, 1985.
-------
-------
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
-------
REGION II
-.'; - " .
^State of'New York)
-------
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.
-------
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.
-------
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
-------
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.
-------
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.
-------
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.
-------
REGION IV
of Georgia)
(State of North Carolina)
-------
State of Georgia
-------
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.
-------
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.
-------
State of North Carolina
-------
(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.
-------
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.
-------
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
-------
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.
-------
(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.
-------
REGION V
(State of Indiana)
(State of Wisconsin)
(Region V Model Language)
-------
State of Indiana
-------
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
-------
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.
-------
State of Wisconsin
-------
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.
-------
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-iee 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 .
-------
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
-------
Region V Model Language
-------
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
-------
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.
-------
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)
-------
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
-------
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.
-------
REGION VI
(Region VI Model Language)
-------
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.
-------
REGION VIII
(Westminster, Colorado)
[language used by the EPA Regional Office]
(State of South Dakota)
[language used by the EPA Regional Office]
-------
Westminster, Colorado
-------
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:
-------
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.
-------
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
-------
State of South Dakota
-------
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??.
-------
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.
-------
REGION IX
(Region IX Model Language)
-------
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
-------
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.
-------
(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
-------
REGION X
(.Region X Model Language)
-------
(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.
-------
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.
-------
(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.
-------
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.
-------
VLB.13.
"Guidance on Enforcement of Prohibitions Against Interference and Pass
Through", dated May 3, 1985.
-------
-------
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-\
/
-------
- 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.
-------
- 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.
-------
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.
-------
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.
-------
VLB. 14.
"Obtaining Approval of Remaining Local Pretreatnent PrograaisSecond Round
Referrals of the Municipal Pretreatnent Enforcement Initiative", dated June
12, 1985. (Categorization of POTWs within Regions excluded}
-------
-------
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
-------
-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
-------
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
-------
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
-------
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.
-------
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
-------
VLB. 15.
"Applicability of Categorical Pretreatment Standards to Industrial Users of
Non-Discharging POTWs", dated June 27, 1985.
-------
-------
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
-------
- 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.
-------
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
-------
VLB.16,
"Guidance Manual for Preparation and Review of Removal Credit
Applications'*, dated July 1985. Table of Contents only.
-------
-------
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
-------
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
-------
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
-------
VLB.17,
"Local Limits Requirements for POTW Pretreatment Programs", dated August 5,
1985.
-------
-------
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
-------
- 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
-------
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
-------
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
-------
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.
-------
- 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
-------
- 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.
-------
VLB.18.
"Guidance Manual for Iron and Steel Manufacturing Pretreatnent Standards,"
dated September 1985. Table of Contents only.
-------
-------
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
-------
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
-------
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
-------
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
-------
VLB.19.
"Guidance Manual for the Use of Production-Based Pretreatment Standards and
the Combined Wastestream Formula", dated September 1985. Table of Contents
only.
-------
-------
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
-------
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
-------
.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
-------
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
-------
VLB.20.
"Guidance Manual for Implementation of Total Toxic Organics (TTO)
Pretreatment Standards", dated September 1985. Table of Contents only.
-------
-------
.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
-------
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
-------
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
-------
VLB.21,
"GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION OF APPROVABLE
PRETREATMENT PROGRAMS", dated September 20, 1985.
Rfc1
-------
-------
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.
-------
- 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
-------
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 soto 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
programif EPA is the pretreatment Approval AuthorityEPA
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.
-------
- 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
-------
- 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
-------
- 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.
-------
- 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.
-------
- 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).
-------
- 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).
-------
- 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 Actin the absence of a corresponding permit
requirementseeking 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".
-------
- 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
-------
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)
-------
- 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.
-------
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:
-------
VLB.22,
"GUIDANCE ON OBTAINING SUBMITTAL AND IMPLEMENTATION OF APPROVABLE
PRETREATMENT PROGRAMS", dated September 20, 1985.
-------
-------
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);
-------
-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
approvalan 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)
-------
-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)
-------
-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.
-------
-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 discretionin most casesto 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.
-------
-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 programapproved 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
-------
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)
-------
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
-------
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
-------
- 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
-------
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
-------
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
-------
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
3-64
msim
HHw
HHraswER
^HHJMSRBB
HraBlEEm
mimM
mSttm
Mm
Giffi
HWfiw
Brail
BGilEi
HHrai
BHKgH
BaBBBSS
^E^BsSHml
^^^B^^R^^RBB
^^^^^K^^H^B^HljI^tt
^^^M^MBdBBMBPH1
HH|
HBH
RHH
HBH
HBHi
BIPffiiniii
HHjfl^^^^^^B^H
BnKU
^I^H^E^E^^BI^B^K
F 3H
fepw
ppy!
K l"rv<*3B
K#** ". "** Z >^H
BS&lp
llL$*H
PiENB
r SPcl
i^SJNl
K'^lffl%
liplft
rlill^
K ^?'^'4ir,
t'"' f fc''"^fe
K>'..ij.'^^
K.;K^^
^Ic'^^Pw
^^^!#^1|
P&:7/^Si
BT f^,'4ti^ii^-J*
' i te ? "£ &.
I '!*- I:!? *' *'S
1) ^-V *r- 3J
I'- . "'Wi'^Sj*!1*
11
-------
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
-------
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
-------
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
-------
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
-------
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 .
-------
. 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
-------
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
-------
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
-------
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
-------
VLB.29,
"GUIDANCE ON BRINGING ENFORCEMENT ACTION AGAINST POTW'S FOR FAILURE TO
IMPLEMENT APPROVED PRETREATMENT PROGRAMS", dated August 4, 1988.
-------
-------
} 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*fe6r,
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.
-------
- 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. .
-------
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
-------
ATTACHMENT BJ MODEL CIVIL JUDICIAL COMPLAINT FOR
PRETREATMENT IMPLEMENTATION CASE
ATTACHMENT C: MODEL CIVIL JUDICIAL CONSENT DECREE FOR
PRETREATMENT IMPLEMENTATION CASE
ii
-------
_^ 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
-------
-------
. .
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
-------
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.
-------
- .
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.
-------
. .
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.
-------
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.
-------
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.
-------
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.
-------
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).
-------
.
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,
-------
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. ' ' .
-------
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. . >
-------
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.
-------
. .
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 regionshould
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. .
-------
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 . .
-------
^ : 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
-------
<<
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.
-------
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.' . .
-------
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; '
-------
. 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."
-------
.
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).
-------
.
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. . .
-------
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.
-------
-------
....
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-
-------
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.
-------
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."
-------
-------
VI.B.30.
"GUIDANCE ON PENALTY CALCULATIONS FOR POTW FAILURE TO IMPLEMENT APPROVED
PRETREATMENT PROGRAMS", dated December 22, 1988.
-------
-------
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.
-------
*-
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
-------
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.
-------
: '' -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 costssalaries, 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".
-------
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.
-------
-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.
-------
-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 toViolations 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.
-------
.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.
-------
-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.
-------
-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
-------
-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. "
-------
-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
-------
-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.
-------
-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
-------
-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 $100.00 per day.
-------
-14.
2) Inspection costs
7/86 12/86., no inspections avoided cost-S19,000.00/yr
1/87 - 9/87, 60% uninspected avoided eost-$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 audit40% 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
-------
-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.
-------
-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
-------
-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
-------
-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.
-------
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
-------
-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
-------
-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
-------
-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.
-------
-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
-------
VI.B.32,
I "Guidance For Developing Control Authority Enforcement Response Plans",
dated September, 1989. Table of Contents only.
-------
2QDO
-------
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*
-------
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
-------
GUIDANCE FOR
DEVELOPING CONTROL AUTHORITY
ENFORCEMENT RESPONSE
PLANS
September 1989
Office of Water Enforcement and Permits
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
-------
CONTENTS
CONTENTS PAGE
DISCLAIMER ii
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
-------
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
-------
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
-------
VI.B.33.
I "FY 1990 Guidance for Reporting and Evaluating POTW Nonconpliance with
Pretreatment implementation Requirements1*, dated September 27, 1989.
-------
-------
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
-------
'-..-' -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
-------
FY 1990 GUIDANCE FOR REPORTING AND EVALUATING
POTW NONCOMPUANCE WITH PRETREATMENT REQUIREMENTS
-------
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
-------
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.
-------
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).
-------
?. 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.
-------
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.
-------
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)
-------
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. .
-------
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
-------
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. .
-------
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.
-------
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.
-------
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.
//*.-.
-------
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
-------
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.
-------
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.
-------
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.
-------
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. .
-------
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*
-------
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
-------
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.
-------
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.
-------
'.. ,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
-------
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.
-------
; ".. - 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).
-------
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.
-------
VLB. 34.
*** "Application and Use of the Regulatory Definition of
Significant Noncompliance for Industrial Users", dated
September 9,1991.
-------
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). .
-------
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)
-------
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
-------
VLB. 35,
"Determining Industrial User Compliance Using Split Samples",
January 21, 1992.
-------
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
-------
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
-------
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
-------
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-
-------
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 -
-------
VLB.36
"The Use of Grab Samples to Detect Violations of Pretreatment
Standards", October 1, 1992. l
-------
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
-------
- 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).
-------
-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.
-------
- 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.' .
-------
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. . . .
-------
- 6 '-
and/or theindustrial 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.
-------
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
-------
VI. C.
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
C. SECTION 311
-------
VI.C.l,
"Oil Spill Enforcement", dated January 8, 1974. Outdated.
-------
?£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 125N7DSS regulations, prcmilgitsd May 22,.
1*973 (33 Federal Register 13531) . You should also encourage Stats
*
-------
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
-------
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
-------
w
H 'll
rl K
P4 M
10 U
O fO
.-1 4J
ri t-.
o () u
HI C
t: "-I -u o
O O n U»
H O M
t/> n. m
si O <0 rj
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..
M
H
.71 S
.Oi
W ll .
01 Jj
H v n
o o ir
Ui ft.'
«M « O
0 PJ 14.
O
0) HI
OH C
175
15
100
61
310
17
151
42
24
10
905
AND. li/wflRiiOUR
01 .
B
IU
. 11 -d
I1) 0.' H
r-l id
r-l JJ d
ri t: o
0, 01
w r-j iJ
u w
U4 U fj
C >4 O
.. o O
t MI
0 d o
K M 4J
17
7
.51
52
16
8
49
22
9
9
240
. MATERIALS
ci
!js
il a
"i r«
4l II
I/) (
-------
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,
-------
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.
-------
.
- '' ' 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:
-------
(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
-------
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.
-------
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;
-------
VI.C.3
"Spill Prevention Control and Counter-measure (SPCC) Plan Program", dated
April 23, 1975. Outdated.
-------
.
, '" UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON. ; C. 20
-------
..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.
-------
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
-------
VI.C.4,
"Penalty Assessment Procedures under Section 311(j)(2)", dated March 29,
1976. Outdated.
-------
' 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
-------
VI.G.5.
"Memorandum of Understanding Between the U.S. Coast Guard and the EPA",
dated August 24, 1979. Outdated.
-------
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.
-------
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
-------
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.
-------
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:
-------
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.
-------
^ 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
-------
.VI.C.6,
"Jurisdiction over Intermittent Streams under § 311 of the CWA", dated
March 4, 1981.
-------
-------
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
-------
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.
-------
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
-------
VI.C.7.
"EPA Authority to Seek Court Imposed Civil Penalties Under Section
311(b)(6) of the CWA", dated November 19, 1984. Outdated.
-------
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.
-------
- 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.
-------
- 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).
-------
- 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
-------
- 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....
-------
- 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
-------
- 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,
-------
- 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".)
-------
- 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).
-------
- 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
-------
- 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).
-------
- 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
-------
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...
-------
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
-------
VI. D.
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
D. CITIZEN SUITS
-------
VI.D.I.
"EPA Response to Citizen Suits", dated July 30, 1984.
-------
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
-------
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
-------
VI.D.2.
"Clean Water Act Citizen Suit Issues Tracking System", dated October 4,
1985.
-------
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,
-------
- 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.
-------
- 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.
-------
VI.D.3
"Notes on Section 505 CWA Citizen Suits," dated February 3, 1986.
-------
VI.D.3
"Notes on Section 505 CWA Citizen Enforcement Suits, February 3,1986".
Notes were missing from the Compendium.
-------
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.
-------
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.
-------
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.
-------
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.
-------
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.
-------
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.
-------
.
; '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
-------
- 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
-------
VI.D.5
"Procedures for Agency Responses to Clean Water Act Citizen
Suit Activity," dated June 15, 1989.
-------
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.
-------
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
-------
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
-------
- 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.
-------
(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.
-------
- 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
-------
VI. E.
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
E. SECTION 404
-------
VI.E.I.
"EPA Enforcement Policy for Noncompliance with Section 404 of the FWPCA,"
dated June 1, 1976.
-------
-------
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.
-------
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.
-------
(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- theDepartment 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.
-------
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
'proceedingarising --out-of.-, noncompliance--with-.-i.ec.tion .404; or
(5) the Region believes section 404 (c) proceedings may be appropriate.
-------
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
-------
VI.E.2.
Letter from Attorney General to Secretary of the Army regarding Section 404
of the CWA dated September 5, 1979.
-------
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
-------
- 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.
-------
- 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.
-------
- 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 enforcethose 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
-------
- 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 vhethsrand 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).
-------
- 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:).
-------
- 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
-------
UcnsrabJe Clifford L. AiczasAar, Jr.
S aero ta 17
-------
VI.E.3.
"Enforcement of Section 404 of the CWA", dated November 25, 1980.
-------
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.
-------
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.
-------
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
-------
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-;.
-------
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
-------
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.
-------
-------
Wednesday
December 24, 1980
Part IV
Environmental
Protection Agency
Guidelines for Specification of Disposal
Sites for Dredged or FBI Material
-------
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
-------
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.
-------
VI.E.6.
"CWA Section 404 Administrative Orders for Removal or Restoration",dated
May 20, 1985.
-------
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
-------
- 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).
-------
- 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)
-------
- 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.
-------
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
-------
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
-------
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
-------
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.
-------
-?.',"
-------
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.
-------
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
-------
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:
-------
a. Repeat Violator(s);
b. Flagrant Vjolation(s);
c. Where EPA requests a class of cases or a particular case; or
-------
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.
-------
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
-------
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.
-------
-------
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.
-------
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
-------
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
-------
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.
-------
- 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.
-------
(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. .
-------
- 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.
-------
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 ofthe . Acting . Assistant Administrator
Army (Civil Works-) for Water
tl. S. Environmental Protection
Agency
M. MM
Date
-------
VI.E.9,
# "Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light
of Tabb Lakes v. United States." dated January 25,1990.
-------
-------
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
-------
-------
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
-------
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
-------
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
-------
VI. F.
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
F. CONTRACTOR LISTING
-------
VI.F.I.
"Guidance for Implementing EPA's Contractor Listing Authority", dated July
18, 1984. See GM-31. (Superseded by F.4, below)
-------
-------
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
-------
-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
-------
-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.
-------
-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.
-------
-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.
-------
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;
-------
-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.
-------
-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.
-------
-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
-------
VI.P.2.
"Implementation of Mandatory Contractor Listing", dated August 8, 1984,
See GM-32.
-------
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
-------
-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.
-------
-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
-------
VI.F.3.
"Policy on Implementing Contractor Listing Program", dated August 27, 1985.
(deleted - Draft Policy only)
-------
VI.F.4.
"Guidance on Implementing the Discretionary Contractor Listing Program",
dated November 26, 1986. See GM-53.
-------
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,
-------
-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
-------
-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
-------
-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,
-------
-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
-------
-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
-------
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
-------
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:
-------
-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
-------
-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.
-------
-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.
-------
VI. Q.
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
G. FEDERAL FACILITIES
-------
VI.G.I
"FEDERAL FACILITIES COMPLIANCE", dated January 4, 1984. See
GM-25.*
-------
VI.6.2
"Federal Facilities Compliance Strategy,11 dated November,
1988. See GM-25 (revised).
-------
VI. H.
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
H. OVERSIGHT AND STATE PROGRAM COORDINATION
-------
VI.H.I,
"Implementing State/Federal Partnership in Enforcement: State/Federal
Enforcement Agreements", dated June 26, 1984. Superseded by H.3, below.
-------
VI.H.2.
Policy on Performance-Based Assistance, dated May 31, 1985.
-------
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.
-------
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
-------
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
-------
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.
-------
-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.
-------
-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.
-------
-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.
-------
-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
-------
-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.
-------
-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;
-------
-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.
-------
-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.
-------
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
-------
-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.
-------
-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
-------
-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.
-------
-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.
-------
-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.
-------
VI.H.3.
"Revised Policy Framework for State/EPA Enforcement Agreements", dated
August 25, 1986 (Supersedes H.I). See also GM-41, revised.
-------
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
-------
-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
-------
POLICY FRAMEWORK FOR STATE/EPA
ENFORCEMENT AGREEMENTS
August 1986
(originally issued June 1984
OFFICE OF ENFORCEMENT
AND COMPLIANCE MONITORING
-------
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
-------
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
-------
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.
-------
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.
-------
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.
-------
In addition, Regions and States should adapt national
timely and appropriate enforcement response criteria to State-
specific circumstances to fit State authorities and procedures
as follows:
(i) Timeliness; The national program guidance on Key
milestones and timeframes should be applied to all States
with adjustments to accommodate each State's laws and legal
procedures. Such adjustment can be important particularly
where the proposed enforcement action cannot possibly take
place within the proposed timeframes or where a State
chooses to address problems more expeditiously than the
Federal guidelines. The trigger points should be realistic
expectations, but within modest variance from the national
goals. Other adjustments should not be made solely because
" a State program consistently takes longer to process these
- actions due to constraints other than procedural require-
ments, e.g., resources. However, if this is the case the
timeframes should serve as a basis for reviewing impediments
with the State to identify how problems can be overcome and
to explore ways over time for the State program to perform
more efficiently. (See discussion in Section B, p.13)
The timeframes are not intended to be rigid deadlines for
action, but rather are: (1) general targets to strive for
in good program performance; (2) trigger points that EPA
and States should use to review progress in individual
cases; and (3) presumptions that, if exceeded, EPA may
take direct enforcement action after consideration of all
pertinent factors and consultation with the State. It is
not the Agency's intention to assume the major enforcement
role in a delegated State as a result of these timeframes.
The trigge-r points should be realistic expectations, but
within modest variance from the national goals. It must
also be realized that in some programs we need experience
with the timeframes to assess how reasonable and workable
they really are and further, that judgments on what is a
reasonable timetable for action must ultimately be case
specific. For example, complex compliance problems may
require longer-term studies to define or achieve an appro-
priate remedy.
(ii) Appropriate Enforcement Response;
(a) Choice of response; National medium-specific program
guidance applicable to State programs on appropriate
enforcement response should be followed (See Appendix A).
There is usually sufficient flexibility within such
guidance to allow the exercise of discretion on how best
to apply the policies to individual cases. The Agency is
making every effort to set forth a consistent national
policy on enforcement response for each program. It is
therefore essential that in setting forth clear expectations
with States this guidance not be altered.
-------
(b) Definitions of formal enforcement actions; Regions
should reach agreement with States as to how certain State
enforcement actions will be reported to and interpreted by
EPA. This should be based upon the essential characteristics
and impact of State enforcement actions, and not merely
upon what the actions are called. National program guidance
setting forth consistent criteria for this purpose should
be followed/ pursuant to the principles listed in Section B,
pages 11-12.
(c) Civil Penalties and Other Sanctions; Program guidance
must also be followed on where a penalty is appropriate.
Regions have the flexibility to consider other types of State
sanctions that can be used as effectively as cash penalties
to create deterrence, and determine how and when it might be
appropriate to use these sanctions consistent with national
guidance. Regions and States should reach understanding on
documentation to evaluate the State's penalty rationale.
Maximum flexibility in types of documentation will be
allowed to the State.
5. Procedures and Protocols on Notification and Consultation;
Regions and States should have maximum flexibility to fashion
arrangements that are most conducive to a constructive relationship,-
following the broad principles outlined in this document.
6. State-Specific Priorities;
In addition, while of necessity EPA must emphasize commitments
by States to address significant noncompliance and major sources
of concern, Regions should be sensitive to the broad concerns of
State Programs including minor sources and the need to be responsive
to citizen complaints. Regions should discuss the State's perspective
on both its own and national priorities, and take into account
State priorities to the extent possible.
7. What Does it Mean to Reach Agreement?
To the extent possible, these agreements should reflect mutual
understandings and expectations for the conduct of Federal and
State enforcement programs. At a minimum, EPA Regions must: (1)
be clear and ensure there are "no surprises"; (2) make arrangements
with the States so that actions taken are constructive and supportive;
and (3) tailor the application of the national program guidance
to the States' programs and authorities. Where mutual agreement
cannot be achieved, clear unilateral statements of policy will
have to suffice, with xcommitments to try to seek further agreements
over time. Areas where agreements have not been reached should
be clearly identified for senior Agency management attention.
-------
B. OVERSIGHT CRITERIA AND MEASURES: DEFINING GOOD PERFORMANCE
The first step to achieving strong and effective national
compliance and enforcement programs is a clear definition of
what constitutes good performance. Because each of EPA\s programs
embodies unique requirements and approaches, good performance
must be defined on a program-specific basis. Adjustments also
must be made in applying criteria and measures to the States
and Regions, based upon their environmental problems and
authorities. Nevertheless, there are several basic elements
which will generally be applicable to a good compliance and
enforcement program.in any of our medium-specific programs.
The following outlines the criteria and measures that form
thercommon framework for defining a quality program. The
framework is to serve as a guide to the national programs as
they develop, in cooperation with Regions and States, the
criteria they will use to assess their performance in implementing
national compliance and enforcement programs.
>
The framework is not intended to be adopted word-for-word
by the programs, nor is there any format implied by this list.
What is important are the concepts. This section addresses
only the elements of a quality program. Issues such as how
oversight should be conducted are addressed in Section C. Each
national program may choose to focus on certain elements of
performance in a given year.
These criteria and measures are intended to apply to the
implementing agency, that is, to an approved or delegated
State or to an EPA Region in the event a program is not
"delegated." Our philosophy is that EPA should be held to
the same standards as we would apply to the States if they
were implementing the program. Portions may also apply to
those non-approved or non-delegated States which are adminis-
tering portions of the programs under cooperative agreements.
CRITERION #1 Clear Identification of and Priorities for
the Regulated Community
A quality compliance and enforcement program is based
upon an inventory of regulated sources which is complete,
accurate and current. The data should in turn be accessible,
preferrably in automated data systems which are accurate, and
up-to-date. The scope of coverage for the inventory should
be appropriately defined by each program as it is probably
not feasible to identify every person or facility subject to
environmental laws and regulations, especially when they are
numerous small sources. Those priorities should be clearly
established in national program guidance and tailored to
State-specific ciccumstances as appropriate.
-------
The inventory of sources or other relevant information on
sources should be utilized as a basis for a priority-setting
system established by the administering agency. These priorities
should reflect and balance both national priorities and state-
specific priorities. A quality program uses those priorities
as a basis for program management. National priorities are
generally set forth in EPA's Operating Year Guidance and program-
specific compliance and enforcement strategies. State-specific
priorities should address not only efforts to achieve broad
based compliance but also should assess the expected environmental
impact of targeting enforcement and compliance monitoring to
specific geographic areas or against certain source types.
Ambient monitoring systems can provide an important point of
departure for priority-setting.
CRITERION #2 Clear and Enforceable Requirements
Requirements established through permits, administrative
orders and consent decrees should clearly define what a
specific source must do by a date certain, in enforceable
terms. It is not EPA's intention in this policy framework to
suggest that EPA conduct a top down review of a State or
Regional program's entire regulatory program. However,
areas where provisions cannot be enforced due to lack of
clarity or enforceable conditions should be identified and
corrected.
CRITERION #3 Accurate and Reliable Compliance Monitoring
There are four objectives of compliance monitoring:
reviewing source compliance status to identify
potential violations;
helping to establish an enforcement presence;
collecting evidence necessary to support enforcement
actions regarding identified violations; and
developing an understanding of compliance patterns
of the regulated community to aid in targeting
activity, establishing compliance/enforcement
priorities, evaluating strategies, and communicating
information to the public.
The two factors in assessing the success of a compliance
monitoring program are coverage and quality.
Coverage; Each program's strategy should reflect a balance
between coverage: (1) for breadth, to substantiate the reli-
ability of compliance statistics and establish an enforcement
presence; and (2) for targeting those sources most likely to
be out of compliance or those violations presenting the most
serious environmental or public health risk.
-------
10
Inspections; Each administering agency should have a
written and reviewable inspection strategy, reviewed and
updated annually, as appropriate: in some programs a
multi-year strategy may be preferable. The strategy
should demonstrate the minimum coverage for reliable
data gathering and compliance assessment set forth in
national program guidance and meet legal requirements
for a "neutral inspection scheme." The strategy should
also address how the inspections will most effectively
reach priority concerns and potential noncompliers including
the use of self-reported data, citizen complaints and
historic compliance patterns. The strategy will be
assessed on whether it embodies the appropriate mix of
categories of inspections, frequency and level of detail.
Inspections should then be carried out in a manner
.-' consistent with the inspection strategy.
Source Self-Monitoring and Reporting; The administering
agency should ensure that minimum national requirements
for source self-monitoring and reporting are imposed
and complied with, either through regulation or permit
condition, pursuant to national guidance as appropriate.
Quality; Each program should define minimum standards for
quality assurance of data and data systems, and timely and
complete documentation of results. At a minimum, each program
should have a quality assurance program to insure the integrity
of the compliance monitoring program. This quality assurance
program should address essential lab analysis and chain of
custody issues as appropriate.
Inspection-s; Inspectors should be able to accurately
document evidence needed to determine the nature and
extent of violations, particularly the presence of
significant violations. Documentation of inspection
findings should be timely, complete and able to support
subsequent enforcement responses, as appropriate to the
purpose of the inspection. Federal oversight inspections
should corroborate findings. Oversight inspections are
a principal means of evaluating both the quality of an
inspection program and inspector training.
Source Self-Monitoring; The administering agency should
have a strategy for and implement quality assurance
procedures, with sufficient audits and follow-up action
to ensure the integrity of self-reported data.
CRITERION 14 High or Improving Rates of Continuing Compliance
The long-term goal of all of our compliance and enforcement
programs is to achieve high rates of continuing compliance
across the broad spectrum of the regulated community. Until
that goal is achieved, compliance rates can fluctuate for
several reasons. In assessing how well an administering
agencv 'c "\eet'"><« **** T-I=II of high or TIT""""-"'*"« ^?«-OT of
-------
11
compliance, other factors must be assessed in addition to
the overall compliance rate. Improved inspections or inspection
targeting often can result in a temporary decrease in rates
of compliance until newly found violations are corrected and
the regulated community responds to the more vigorous attention
to specific compliance problems. In these instances, a
decrease in .the rate of compliance would be a sign of a'
healthy compliance and enforcement program. At a minimum,
programs should design mechanisms to track the progress* of
all sources out of compliance through major milestones up to
achieving final physical (full) compliance with applicable
regulations and standards.
Program quality must also be assessed in terms of how well
the program is returning significant noncompliers to compliance.
The use of lists of significant violators and specific commitments
to" track and resolve significant noncompliance should be
part of the planning process of the administering agency,
and, between States and Regions. The lists should be developed
in consultation with the States and continually updated each
fiscal year and sources on it tracked through to final physical
compliance.
CRITERION 15 Timely and Appropriate Enforcement Response
Quality enforcement programs ensure that there is timely
and appropriate enforcement response to violations. Expectations
for what constitutes timely and appropriate action should be
based upon national program guidance, tailored to the procedures
and authorities in a given State and assessed in regard to
particular circumstances surrounding each instance of violation.
National programs must establish benchmarks or milestones
for what constitutes timely and appropriate enforcement
action, forcing progress in enforcement cases toward ultimate
resolution and full physical compliance. This concept is a
key new feature to our compliance and enforcement program
implementation.
In designing oversight criteria for timely enforcement
response, each program will attempt to capture the following
concepts:
1. A set number of days from "detection" of a violation
to an initial response. Each program should clearly
define when the clock starts, that is, how and when
a violation is "detected."
2. Over a specified period of time, a full range of enforce-
ment tools may be used to try to achieve compliance,
including notices of violation, warning letters, phone
calls, site visits, etc. The adequacy of these responses
will be assessed based upon whether they result in
expeditious compliance.
3. A prescribed number of days from initial action within
which a determination should generally be made, that
-------
12
either compliance has been achieved or an administrative
enforcement action has been taken (or a judicial referral
has been initiated, as appropriate) that, at a minimum:
0 Explicitly requires recipient to take some corrective/
remedial action, or refrain from certain behavior,
to achieve or maintain compliance;
i
0 Explicitly is based on the issuing Agency's deter-
mination that a violation has occurred;
0 Requires specific corrective action, or specifies a
desired result that may be accomplished however the
recipient chooses, and specifies a timetable for
completion;
0 May impose requirements in addition to ones relating
directly to correction (e.g., specific monitoring,
planning or reporting requirements); and
0 Contains requirements that are independently enforce- ""
able without having to prove original violation and
subjects the person to adverse legal consequences
for noncompliance.
A specific point at which a determination is made
either that final physical compliance has been achieved,
that the source is in compliance with a milestone in
a prior order, or that escalation to a judicial
enforcement action has been taken if such actions
have not already been initiated.
In developing program-specific guidance, this milestone
may be treated more as a concept than as a fixed timetable,
taking into account the fact that the administrative
hearing process and the State Attorney General's actions
are not within the direct control of the administering
agency.£/ What is important, is the embodiment of the
concept of timely follow-up and escalation, in requiregents
for tracking and management.
Final physical compliance date is firmly established
and required of the facility. Although it is not
possible for programs to establish any national
timeframes, the concept of final physical compliance
by a date certain should be embodied in EPA and State
enforcement actions.
Expeditious physical compliance is required. It may
not be possible for programs to define "expeditious"
in terms of set time periods, but some concept of
"expeditious" (i.e., that the schedule will result in
a return to full physical compliance as quickly as
can reasonably be expected) should be embodied in
each program's guidance.
-''See p. 17, '6-27.. regardin- *'- «;*""> * ,-..tc re?-vonsihi i
for coordinating with the fataue Atcw~ney o^.i^tal or other
legal staffs. ^
-------
13
Timeframes established by the national programs for each
of these minimum milestones are principally intended to serve
as trigger points and not as absolute deadlines/ unless
specifically defined as such. Whatever timeframes are established
are intended to apply only to Federal requirements as adopted
by the States, and do not apply to State statutes and require-
ments that go beyond those required by Federal law. Th$
timeframes are key milestones to be used to manage the program,
to trigger review of progress in specific cases, and a presumption
of where EPA may take direct enforcement action after consideration
of all pertinent factors and consultation with the State.
Timeframes and their use in management will evolve over
time as they will have to reflect different types of problems
that may warrant different treatment. For example, programs
will have to take into account such factors as new types of
violations, the difference between operating and maintenance
violations versus those that require installation of control
equipment, emergency situations which may fall outside the
scope of the normal timeframes for action, etc.
Administering agencies are expected to address the full
range of violations in their enforcement responses considering
the specific factors of the case and the need to maintain a
credible enforcement presence. However, the new management
approach setting forth desired timeframes for timely action
could have resource implications beyond what is currently
available to or appropriate for the full range of sources
and violations. Therefore, as we begin to employ the concept
of timely and appropriate enforcement response, at a minimum,
the focus should be on the greatest problems, i.e., the
significant norv.compliers. Over time, and with more experience,
this concept should be phased-in to cover a broader range of
violations. This in no way should constrain the programs
from applying the concepts broadly.
The choices of appropriate response are to be defined
within the constraints of national program guidance and
applied by the administering agency based upon consideration
of what is needed: (1) in general, to achieve expeditious
correction of the violation, deterrence to future noncompliance
and fairness; and (2) in individual circumstances, based upon
the gravity of the violation, the circumstances surrounding
the violation, the source's prior record of compliance and
the economic benefits accrued from noncompliance. With
three exceptions, the form of the enforcement response is not
important by itself, as long as it achieves the desired
compliance result. The exceptions generally fall into the
following three categories:
1. If compliance has not been achieved within a certain
timeframe, the enforcement response should meet
minimum requirements, usually associated with at
least the issuance of an administrative order (see
criteria listed above) or judicial referral.
-------
14
2. Because of the need to create a strong deterrence
to noncompliance, it is important to assess penalties
in certain cases, and only certain types of enforcement
actions can provide penalties. Each program must
clearly define/ as appropriate, the circumstances
under which nothing less than a penalty or equivalent
sanction will be acceptable. (See Criterion 16 below.)
i
3. In some circumstances, a judicial action or sanction
is usually the only acceptable enforcement tool. Each
program must define these circumstances as appropriate.
For example, a judicial action might be required
where a compliance schedule for Federal requirements
goes beyond Federal statutory deadlines.
: A good program should have adequate legal authority to
achieve the above objectives. Where deficiencies have been
identified, steps should be taken to fill identified gaps.
CRITERION * 6 Appropriate Use of Civil Judicial and Administrative
Penalty and Other Sanction Authorities to Create Deterrence^/ r*~~
1. Effective Use of Civil Penalty Authorities and Other Sanctions;
Civil penalties and other sanctions play an important role in
an effective enforcement program. Deterrence of noncompliance
is achieved through: 1) a credible likelihood of detecting a
violation, 2) the speed of the enforcement response, and 3) the
likelihood and severity of the sanction. While penalties or
other sanctions are the critical third element in creating
deterrence, they can also contribute to greater equity among
the regulated community by recovering the economic benefit a
violator gains;from noncompliance over those who do comply.
Effective State and regional programs should have a clear plan
or strategy for how their civil penalty or other sanction
authorities will be used in the enforcement program. At a
minimum, penalties and/or sanctions should be obtained where
programs have identified that a penalty is appropriate (see
Criterion #5 above).
The anticipated use of sanctions should be part of the
State/EPA Enforcement Agreements process, with Regions and
States discussing and establishing how and when the State
generally plans to use penalties or other approaches where
some sanction is required.
^/Excerpts from the Policy on "Oversight of State Civil Penalties'
2/28/86. The focus of the policy is on both civil judicial and
civil administrative penalties, and does not cover criminal
penalties.
-------
15
EPA generally prefers the use of cash penalties to other
types of sanctions.^/ Howeverf there may be other sanctions
which are preferable to cash penalties in some circumstances.
In particular, States nay have a broader range of remedies than
those available at the Federal level. Examples of other sanctions
may be: pipeline severance (UIC), license ^evocation (FIFRA)
or criminal sanctions including fines and/or incarceration.
National program guidance should clarify in general terms how
the use of other types of sanctions fits into the program's
penalty scheme at the Federal and State levels, e.g., whether
they are substitutes for or mitigate a cash penalty.£/ In
any case, States are urged to use cash penalty authorTties in
those cases for which a penalty is "appropriate" and/or to use
other sanctions pursuant to these agreements with the Regions.
EPA encourages States to develop civil administrative
penalty authority in addition to civil judicial penalty authority,
and to provide sufficient resources and support for successful
implementation where they do not already have this authority.
In general, a well designed administrative penalty authority
can provide faster and more efficient use of enforcement
resources, when compared to civil judicial authorities. Both
civil judicial and administrative penalty authorities are
important, complementary, and each should be used to greatest
advantage. EPA is similarly seeking to gain administrative
penalty authority for those Federal programs which do not
already have it. To support State efforts to gain additional
penalty authorities, EPA will share information collected on
existing State penalty authorities and on the Federal experience
with the development and use of administrative authorities.
2. Oversight of Penalty Practices;
EPA Headquarters will oversee Regional penalties to
ensure Federal penalty policies are followed. This oversight
will focus both on individual penalty calculations and regional
penalty practices and patterns.
q/In limited circumstances where they meet specified criteria, EPA
and DOJ policies and procedures allow for alternative payments --
such as beneficial projects which have economic value beyond
the costs of returning to compliance in mitigation of
their penalty liability.
^/Until program-specific guidance is developed to define the
appropriate use of civil sanctions, the Region and State should
consider whether the sanction is comparable to a cash penalty
in achieving compliance and deterring noncompliance. Costs
of returning to compliance will not be considered a penalty.
Criminal authorities, while not clearly comparable to cash
penalties, can be used as effectively as cash penalties to
create deterrence in certain circumstances.
-------
16
EPA will review state penalties in the context of the State's
overall enforcement program not merely on its use of cash penalties.
While individual cases will be discussed, the program review will
more broadly evaluate how penalties and other sanctions can be
used most effectively. The evaluation will consider whether the
penalties or other sanctions are sought in appropriate cases,
whether the relative amounts of penalties or use of sanstions
reflect increasing severity of the violation, recalcitrance,
recidivism etc., and bear a reasonable relationship to the economic
benefit of noncompliance (as applicable) and whether they are
successful in contributing to a high rate of compliance and
deterring noncompliance. EPA may also review the extent to which
State penalties have been upheld and collected.
3.-- Development and Use of Civil Penalty Policies:
EPA Regions are required to follow written Agency-wide
and program specific penalty policies and procedures.
EPA encourages States to develop and use their own State
penalty policies or criteria for assessing civil penalties.
The advantages of using a penalty policy include:
leads to improved consistency;
is more defensible in court;
- generally places the Agency in a stronger position to
negotiate with the violator;
improves communication and support within the
administering agency and among the agency officials,
attorneys and judges especially where other organizations
are responsible for imposing the penalty;
when based on recoupment of economic benefit and a
component for seriousness, deters violations based
upon economic considerations while providing some
equity among violators and nonviolators; and
- can be used by judges as a basis for penalty decisions.
EPA encourages States to consider EPA's penalty policies as
they develop their own penalty policies.
4. Consideration of Economic Benefit of Noncompliance!
To remove incentives for noncompliance and establish deterrence,
EPA endeavors, through its civil penalties, to recoup the economic
benefit the violator gained through noncompliance. EPA encourages
States to consider and to quantify where possible, the economic
benefit of noncompliance where this is applicable. EPA expects
States to make a reasonable effort to calculate economic benefit
and encourages States to attempt to recover this amount in negoti-
ations and litigation. States may use the Agency's computerized
model (known as BEN) for calculating that benefit or different
approaches to calculating economic benefit. EPA will provide
technical assistance to States on calculating the economic benefit
of noncompliance, and has made the BEN computer model available
to States.
-------
17
CRITERION |7 Accurate Recordkeeping and Reporting
A quality program maintains accurate and up-to-date files
and records on source performance and enforcement responses
that are reviewable and accessible. All recordkeeping and
reporting should meet the requirements of the quality assurance
management policy and procedures established by each national
program consistent with the Agency's Monitoring Policy and
Quality Assurance Management System. Reports from States to
Regions, Regions to Headquarters must be timely, complete and
accurate to support effective program evaluation and priority-
setting.
State recordkeeping should include some documented rationale
for the penalties sought to support defensibility in court, enhance
Agency's negotiating posture, and lead to greater consistency.
These records should be in the most convenient format for adminis-
tration of the State's penalty program to avoid new or different
recordkeeping requirements.
CRITERION 18 Sound Overall Program Management
A quality program should have an adequate level, mix and
utilization of resources, qualified and trained staff, and adequate^
equipment. The intention here is not to focus on resource and
training issues unless there is poor performance identified
elsewhere in the program. In those instances, these measures
can provide a basis for corrective action by the administering
agency. There may be, however, some circumstances in which
base level of trained staff and equipment can be defined by a
national program where it will be utilized as an indicator of
whether the program is adequate.
Similarly, a good compliance and enforcement program should
have a clear scheme for how the operations of other related
organizations, agencies and levels of government fit into the
program, especially the State Attorneys General or other appropriate
State legal organizations. The State Agency should, at a minimum,
ensure that the State AG, internal legal counsel, or other appropriate
government legal staff are consulted on the enforcement commitments
the State is making to EPA to assure that the level of legal
enforcement support and associated resources needed to accomplish
the agreed-upon goals are secured. This coordination should
result in timely review of initial referral packages, satisfactory
settlement of cases, as appropriate, timely filing and prosecution
of cases, and prompt action where dischargers violate consent
decrees. (See Section E, p. 26-27).
-------
18
C. OVERSIGHT PROCEDURES AND PROTOCOLS
This section addresses how EPA should conduct its oversight
function, its approach, process and follow-up, to build and improve
individual programs and overall national performance. On May 31,
1985, the Agency issued the Policy on Performance-Based Assistance,
which contains guidance on how Regions should oversee assistance
agreements. Both of these policies call for oversight with a
problem-solving orientation with clear identification of actions
needed to correct problems or recognize good performance.
1. Approach
-' The goal of oversight should be to improve the State (or Regional)
compliance and enforcement program. To accomplish this, oversight
should be tailored to fit State performance and capability. The
context must be the whole State compliance and enforcement program.,
although EPA's focus for audit purposes will be on national priorfty
areas.
No new oversight process is intended here. Existing procedures
such as mid-year reviews, periodic audits and oversight inspections as
established by each program and Region should be used. Administering
agencies should identify strengths and weaknesses of the State and
Federal programs and develop mutual commitments to correct problems.
EPA oversight of State performance should be consistent with
the following principles:
a. Positive oversight findings should be stressed as well as the
negative ones.
b. Positive steps that can be taken to build the capability of :
State programs in problem areas should be emphasized. This
should include providing technical assistance and training --
by EPA staff to the extent possible.
c. EPA action to correct problems should vary, depending on the
environmental or public health effect of the problem and whether
it reflects a single incident or a general problem with the
State program.
d. The States should be given an opportunity to formally comment
on EPA's performance. Regions should provide information to
the States that is available on its performance against the
national standards, including their performance on meeting the
"timely and appropriate" criteria, as well as their performance
on commitments to that State.
e. EPA should give States sufficient opportunity to correct identified
problems, and take corrective action pursuant to the criteria for
direct enforcement established in Section D.
-------
19
f. EPA should use the oversight process as a means of trans-
ferring successful regional and State approaches from one
Region or State to the other.
2. Process
- - ' " i
Several actions can result in the most constructive review
of the State's programs: *
a. To the extent possible, files to be audited will be identified
in advance, with some provision for random review of a percentage
of other files if necessary.
b. Experienced personnel should be used to conduct the audit/
review EPA staff should be used to the extent possible
.to build relationships and expertise.
c. There should be an exit interview and every opportunity
should be made to discuss findings, comment on and identify
corrective steps based upon a review draft of the written
report.
d. Opportunity should be made for staffs interacting on
enforcement cases and overseeing State performance to meet
personally rather than rely solely upon formal communications
this applies to both technical and legal staffs.
3. Follow-Up and Consequences of Oversight
When State performance meets or exceeds the criteria and
measures for defining good program performance, EPA should
reward this performance in some of the following ways:
a. reduce the number, level or scope, and/or frequency of
reviews or of some reporting requirements consistent with
statutory or regulatory requirements;
b. reduce the frequency and number of oversight inspections;
and/or
c. allow the program more flexibility in applying resources
from an almost exclusive focus on national priorities
e.g., major sources, to addressing more priorities of
concern to the State e.g., minor sources.
When State performance fails to meet the criteria for good
State performance, EPA may take some of the following actions,
as appropriate:
a. suggest changes in State procedures;
b. suggest changes in the State's use of resources or training of
staff;
c. provide technical assistance;
-------
20
d. increase the number of oversight inspections and/or require
submittal of information on remedial activities;
e. provide other workable State models and practices to States
with problems in specific areas and match State staff with
expertise in needed area;
f. if State enforcement action has not been timely and appropriate,
EPA may take direct enforcement action;
g. track problem categories of cases more closely;
h. grant awards could be conditioned by targeting additional
resources to correct identified problems or reduced based
on poor performance where such performance is not due to
. inadequate resources; and/or
i. consider de-delegation if there is continued poor performance.
-------
21
D. CRITERIA FOR DIRECT FEDERAL ENFORCEMENT IN DELEGATED STATES
This section addresses criteria defining circumstances under
which approved State programs might expect direct Federal enforce-
ment action and how EPA will carry out such actions so as to be
most supportive of strengthening State programs.
i
1. When Might EPA Take Direct Enforcement Action in Approved States?
A clear definition of roles and responsibilities is essential
to an effective partnership, since EPA has parallel enforcement
authority under its statutes whether or not a State has an approved
or delegated program. As a matter of policy in delegated or
approved programs, primary responsibility for action will reside
with.State or local governments with EPA taking action principally
where a State is "unwilling or unable" to take "timely and appropriate1
enforcement action. Many States view it as a failure of their
program if EPA takes an enforcement action. This is not the
approach or view adopted here. There are circumstances in which
EPA may want to support the broad national interest in creating
an effective deterrent to noncompliance beyond what a State may
need to do to achieve compliance in an individual case or to
support its own program.
Because States have primary responsibility and EPA clearly
does not have the resources to take action on or to review in
detail any and all violations, EPA will circumscribe its actions
to the areas listed below and address other issues concerning
State enforcement action in the context of its broader oversight
responsibilities. The following are four types of cases EPA may
consider taking.direct enforcement action where we have parallel
legal authority'to take enforcement action:
a. State requests EPA action
b. State enforcement response is not timely and appropriate
c. National precedents (legal or program)
d. Violation of EPA order or consent decree
In deciding whether to take direct enforcement in the above
types of cases, EPA will consider the following factors:
- Cases specifically designated as nationally significant
(e.g., significant noncompliers, explicit national or
regional priorities)
- Significant environmental or public health damage or
risk involved
- Significant economic benefit gained by violator
- Interstate issues (multiple States or Regions)
- Repeat patterns of violations and violators
-------
22
How these factors are applied for the various types of cases is
discussed below.
a. State requests EPA action;
The State may request EPA to take the enforcement kction for
several reasons including but not limited to: where State authority
is inadequate, interstate issues involving multiple States which
they cannot resolve by themselves, or where State resources or
expertise are inadequate, particularly to address the significant
violation/violators in the State in a timely and appropriate
manner. CPA should honor requests by States for support in
enforcement. EPA will follow its priorities in meeting any such
requests for assistance, considering significance of environmental
or. public health damage or risk involved, significant economic
benefit gained by a violator, repeat patterns of violations and
violators. Based on this general guidance, each program office
may develop more specific guidance on the types of violations on
which EPA should focus. Regions and States are strongly encouraged
to plan in advance for any such requests for or areas needing EPA
enforcement assistance during the State/EPA Enforcement Agreements"
Process.
b. State Enforcement is not "Timely and Appropriate*
The most critical determinant of whether EPA will take direct
enforcement action in an approved State is whether the State has
or will take timely and appropriate enforcement action as defined
by national program guidance and State/Regional agreements. EPA
will defer to State action if it is "timely and appropriate"
except in very limited circumstances: where a State has requested
EPA action (a, above), there is a national legal or program
precedent which cannot be addressed through coordinated State/Federal
action (c, below), EPA is enforcing its own enforcement action
(d, below) or the case of a repeat violator, where the State
response is likely to prove ineffective.given the pattern of
repeat violations and prior history of the State's success in
addressing past violations.
(i) Untimely State Enforcement Response;
If a State action is untimely, EPA Regions must determine
after advance notification and consultation with the State whether
the State is moving expeditously to resolve the violation in an
"appropriate" manner.
(ii) Inappropriate State Action;
EPA may take direct action if the State enforcement action
falls short of that agreed to in advance in the State/EPA Enforce-
ment Agreements as meeting the requirements of a formal enforcement
response (See Section B, page 13) where a formal enforcement
response is required. EPA may also take action if the content of
the enforcement action is inappropriate, i.e., if remedies are
-------
23
clearly inappropriate to correct the violation, if compliance
schedules are_unacceptably extended, or if there is no appropriate
penalty or other sanction.
(iii) Inappropriate Penalty or other Sanction; >
For types of violations identified in national program
guidance as requiring a penalty or equivalent sanction, EPA will
take action to recover a penalty if a State has not assessed a
penalty or other appropriate sanction. EPA generally will not
consider taking direct enforcement action solely for recovery of
additional penalties unless a State penalty is determined to be
grossly deficient after considering all of the circumstances of
the case and the national interest. In making this determination,
EPA will give every consideration to the State's own penalty
authority and any applicable State penalty policy. EPA will
consider whether that State's penalty bears any reasonable relationship
to the seriousness of the violation, the economic benefit gained
by the violator (where applicable) and any other unique factors
in the case. While this policy provides the basis for deciding
whether to take direct Federal action on the basis of an inadequate
penalty, this issue should be discussed in more detail during the
agreements process to address any state-specific circumstances
and procedures established to address generic problems in specific
cases. Where identified in national guidance and agreed to
between the Region and State, other sanctions will be acceptable
as substitutes or mitigation of penalty amounts in these considerations.
Program-specific national guidance on expectations for State
penalty assessments may be developed tin consultation with the
States and applied for determining adequacy of penalty amounts
after being applied in practice in EPA Regions. It is the current
expectation of Agency managers that EPA will continue to gain
experience in implementing its own penalty policies before national
programs consider such guidance. Thus, in the near term a determination
that a penalty is "grossly deficient" will remain a judgment call
made on a case-by-case basis.
c. National Precedents
This is the smallest category of cases in which EPA may
take direct enforcement action in an approved State, and will
occur rarely in practice. These cases are limited to those of
first impression in law or those fundamental to establishing a
basic element of the national compliance and enforcement program.
This is particularly important for early enforcement cases under
a new program or issues that affect implementation of the program
on a national basis. Some of these cases may most appropriately
be managed or coordinated at the national level. Additional
guidance on how potential cases will be identified, decisions
made to proceed and involvement of States and Regions in that
process, has been developed as Appendix B to this document.
-------
24
d. Violation of EPA order or consent decree;
EPA places a high priority on following through on enforcement
actions until final compliance is achieved. If EPA has taken
administrative, civil or criminal judicial enforcement in a
delegated or approved State, EPA will take any follow up enforcement
action on violations of those agreements or orders to preserve
the integrity of Federal enforcement actions.
2. How Should EPA Take Action So As To Better Support Strong
State Programs?
Section E describes in some detail the principles and
procedures for advance notification and consultation with States.
These are imperatives for a sound working relationship. In all
of these circumstances, where EPA may overfile a State action on
the "basis that it is not timely and appropriate EPA should work
with the State as early as possible in the case, well before
completion of a State action which, if resulting in expeditious
compliance by the facility, would render any subsequent EPA
involvement unconstructive, ineffective or moot. This is parti-
cularly important since it is EPA policy that once a case has
been commenced, EPA generally will not withdraw that case in
light of subsequent or simultaneous State enforcement action.
In particular, Regions also should identify, with their
States, particular areas in which arrangements can or should be
made, in advance, for direct EPA enforcement support where State
authorities are inadequate or compliance has been a continuing
problem.
There are several other approaches identified here for how
EPA can take enforcement action, where it is appropriate, in a
manner which can better support States.
To the maximum extent possible, EPA should make arrangements
with States to:
a. Take joint State/Federal action particularly where a
State is responsibly moving to correct a violation but
lacks the necessary authorities, resources, or national
or interstate perspective appropriate to the case.
b. Use State inspection or other data and witnesses, as
appropriate.
c. Involve States in creative settlements and to participate
in case development so that the credibility of States
as the primary actor is perceived and realized.
-------
25
d. Arrange for division of penalties with State and local
governmentso/(to the extent they participate in Federal
enforcement actions, and where permitted by law) to
enhance Federal/State cooperation in enforcement.
e. Issue joint press releases and share credit with the
State to ensure EPA is not in competition with the
State and that EPA action is not erroneously perceived
as a weakness or failure in the State's program.
f. Keep States continually apprised of events and reasons
for Federal actions to avoid conflicting actions
and to build a common understanding of.goals and
the State .and Federal perspectives.
3. How Do the Expectations for "Timely and Appropriate Action"
Apply to EPA in Delegated States?
In delegated States, EPA performs an oversight function,
standing ready to. take direct Federal enforcement action based
upon the factors stated above. In its oversight capacity, in
most cases, EPA will not obtain real-time data. As indicated in
Section F on State Reporting, EPA will receive quarterly reports
and will supplement these with more frequent informal communi-
cations on the status of key cases. Therefore, we do not expect
EPA Regions, through their oversight, to be able to take direct
enforcement action following the exact same timeframes as those
that apply to the administering agency. However, when EPA does
determine it is appropriate to take direct Federal action, EPA
staff are expected to adhere to the same timeframes as applicable
to the States starting with the assumption of responsibility for
enforcement action.
&/See Appendix C for Agency Policy on "Division of Penalties
with State and Local Governments," issued October 30, 1985
-------
E. ADVANCE NOTIFICATION AND CONSULTATION
A policy of "no surprises" must be the centerpiece of any
effort to ensure the productive use of limited Federal and
State resources and an effective "partnership" in achieving
compliance. This principle should be applied to all aspects of
the compliance and enforcement program covering inspections,
enforcement activities, press releases and public information,
and management data summaries upon which State and national
performance are assessed.
In order to guarantee that there is ample advance notification
and consultation between the proper State and Federal officials,
EPA Regions should confer annually with each State, discuss the
following areas and devise agreements as appropriate. The
agreements should be unique to each State and need not cover
all areas so long as there is a clear understanding and
discussion of how each area will be addressed.
1. Advance Notification to Affected States of Intended EPA
Inspections and Enforcement Actions .-"
Agreements should identify:
- who should be notified, e.g.
the head of the program if it involves potential
Federal enforcement; and
who is notified of proposed/planned Federal inspections
- how the State will be notified, e.g.
the agencies share inspection lists; and
the agency contact receives a telephone call on a
proposed Federal enforcement case.
- when they will be notified at what point(s) in
the process, e.g.
when a case is being considered; and/or
when a case is ready to be referred, or notice
order issued.
Some specific provisions need to be made to address the
following:
a. Advance Notification of State Attorneys General or other
legal staff of potential EPA enforcement actions'/
While EPA's primary relationship with the State is and
should continue to be with the State agency that has
been delegated or been approved to administer the
programs, EPA needs to ensure that all parties in the
In some States there are legal organizations that have direct
enforcement authority which by-passes the State AG, e.g.,
District Attorneys, internal legal counsel, Governor's
General Counsel. In these instances, this guidance would
annlu fr> t.hese other organi za
-------
27
State affected by a pending EPA enforcement action receive
appropriate advance notification. In addition, when EPA
negotiates commitments each year with the State to address
specific significant violators, it is important that all
the parties affected by these commitments are aware of the
legal enforcement support and associated resources needed
to accomplish these goals. j
As part of the State/EPA Enforcement Agreements'process,
the Region should discuss with the State agency their
internal procedures and/or protocols for advance notification
and consultation with the State AG or other legal staff.
The State agency is responsible for assuring that the State
AG or other legal staff are properly notified and consulted
about planned Federal enforcement actions and/or enforcement
initiatives on an ongoing basis. States are strongly
encouraged to commit advance notification and consultation
procedures/protocols reached between the State agency and
the State AG (or State legal staff, as appropriate) to
writing. The Regions should seek to incorporate these
written protocols into the State/EPA Enforcement Agreements.
The Region should do everything possible to work through
the State agency on the issue of communicating with the
State AG or other legal staff on potential EPA enforcement
actions as well as other matters. However, if the State
agency does not have a workable internal procedure and if
problems persist, the Region, after advance notification
and consultation with the State agency, may make arrangements
for directly communicating with the State AG or other legal
staff .
The Region and State agency should discuss how the outside
legal organizations will be consulted on the commitments the
State is making to EPA on addressing significant violators
each year. These consultations are intended to clarify the
legal enforcement support needed to accomplish these goals.
This is particularly important for those State agencies
dependent upon the State AG or other outside legal organizations
to implement their enforcement program.
State agencies are also encouraged to notify these organi-
zations of the anticipated timing of the negotiations each
year with EPA on the Enforcement Agreements, grants, and
related documents.
Regions are encouraged to work with their State agencies to
set up a joint meeting at least annually to which all parties
are invitedthe program and legal staffs of both the EPA
Region and the State agency(s), plus U.S. Attorney staff
and State AG staffto review EPA's enforcement priorities
and recent program guidance.
-------
28
b. Federal Facilities
Federal facilities may involve a greater or different
need for coordination, particularly where the Federal
facilities request EPA technical assistance or where EPA
is statutorily required to conduct inspections (e.g.,
under RCRA). The advance notification and consultation
protocols in the State/EPA Enforcement
Agreements should incorporate any of the types of special
arrangements necessary for Federal facilities. The
protocols should also address how the State will be
involved in the review of Federal agency A-106 budget
submissions., and include plans for a joint annual review
. of patterns of compliance problems at Federal facilities
in the State.
c. Criminal Enforcement
Although the Policy Framework does not apply to the
criminal enforcement program, to improve the coordination
with States on criminal investigations and assist the
States in their criminal enforcement efforts the Regions
should discuss with States any affirmative plans for
cross-referrals and cooperative criminal investigations.
Such discussions should include the Special Agent in
Charge and appropriate program staff familiar with criminal
enforcement.
In cases where other States or jurisdictions may be directly
and materially affected by the violation, i.e., environmental
or public health impacts, EPA's Regional Offices should attempt
to notify all of the States that are interested parties or are
affected by the enforcement action through the communication
channels established by the State agreements, working through the
appropriate Regional Office. This notification process is parti-
cularly important for hazardous waste cases in which regulatees
often operate across State boundaries.
Protocols for advance notification must be established with
the understanding that each party will respect the other's need
for confidentiality and discretion in regard to the information
being shared, where it is appropriate. Continuing problems in
this regard will be cause for exceptions to the basic principle
of advance notification.
Many of our statutes or regulations already specify pro-
cedures for advance notification of: the State. The State/Federal
agreements are intended to supplement these minimum requirements.
2. Establishment of a Consultative Process
Advance notification is only an essential first step and
should not be construed as the desired end result of these
-------
29
State/Federal agreements. The processes established should
be consultative and should be designed to achieve the following:
a.-. Inspections
i
Advance notice to States through sharing of lists of
planned Federal inspections should be designed^ so
that State and Federal agencies can properly coordinate
the scheduling of site inspections and facilitate
joint or multi-media inspections as appropriate.
This should generally be done for all programs whether
or not they are delegated* except for investigative
inspections which would be jeopardized by this process.
b. Enforcement Actions
Federal and State officials must be able to keep one
another current on the status of enforcement actions
against noncomplying facilities. Regularly scheduled
meetings or conference calls at which active and
proposed cases and inspections are discussed may
achieve these purposes.
3. Sharing Compliance and Enforcement Information
The Region and State should discuss the need for a process
to share, as much as practicable, inspection results, monitoring
reports, evidence, including testimony, where applicable for
Federal and/or State enforcement proceedings. The Regions
should also establish mechanisms for sharing with the States
copies of reports generated with data submitted by the Regions
and States, including comparative data other States in the
Region and across Regions.
4. Dispute Resolution
The Region and State should agree in advance on a process
for resolving disputes, especially differences in interpretation
of regulations or program goals as they may affect resolution of
individual instances of noncompliance. As stated in the policy
on Performance-Based Assistance, the purpose in laying out a
process by which issues can be surfaced quickly up the chain of
command in both the Regions and States is to ensure that
significant problems receive the prompt attention of managers
capable of solving these problems expeditiously.
5. Publicizing Enforcement Activities
EPA has made commitments to account publicly for its
compliance and enforcement programs. It is EPA's policy to
publicize all judicial enforcement actions and significant
administrative actions to both encourage compliance and serve
as a deterrent to noncompliance.
-------
30
While State philosophies on these matters may vary, the
Region and State should discuss opportunities for joint press
releases on enforcement actions and public accounting of both
State and Federal accomplishments in compliance and enforcement
Discussions should address how and when this coordination
would take place. Regions should consult with the State on any
enforcement related EPA press release or other media event
which affects the State. To the extent possible, the State
should be given an opportunity to join in the press release or
press conference if it has been involved in the underlying
enforcement action. Further, EPA generated press releases and
public information reports should acknowledge and give credit
to relevant State actions and accomplishments when appropriate.
6. Publicly Reported Performance Data
Regions should discuss with States mechanisms for ensuring
the accuracy of data used to generate monthly, quarterly and/or
annual reports on the status of State and Federal compliance
and enforcement activities. Opportunities should be provided
to verify the accuracy of the data with the States prior to
transmittal to headquarters. Time constraints may be a real
limitation on what can be accomplished, but it is important to
establish appropriate checks and control points if we are to
provide an accurate reflection of our mutual accomplishments.
If there are no data accuracy concerns, these mechanisms may
not be needed.
-------
APPENDIX A: ANNUAL PRIORITIES AND PROGRAM GUIDANCES
Annual Priorities for Implementing Agreements
FY 1985; Given the enormity of the task in the first year,
3 priorities were established: ^
0 defining expectations for timely and appropriate
enforcement action;
0 establishing protocols for advance notification
and consultation; and
0 reporting State data.
FY 1986; Building on the FY 1985 process, three areas were
emphasized:
0 expanding the scope of the agreements process to
cover all delegable programs;
0 adapting national guidance to State-specific
circumstances; and
0 ensuring a constructive process for reaching
agreement.
FY 1987; Continuing to refine the approaches and working
relationships with the States, three areas are
to be emphasized:
0 improving the implementation and monitoring of
timely and appropriate enforcement response with
particular emphasis on improving the use of
penalty authorities;
0 improving the involvement of State Attorneys
General (or other appropriate legal staff) in
the agreements process; and
0 implementing the revised Federal Facilities
Compliance Strategy.
-------
APPENDIX A
EXt.' ING OR PLANNED NATIONAL GUIDANCE AFFECTING STATE/EPA ENFORCEMENT AGREEMENTS PROCESS
Revised: 8/14/86
Cro&^-cutting National Guidance;
NOTE. Underlining represents guidance still to be issued.
Revised Policy Framework Cor State/Federal Enforcement Agreementsreissued 8/86
Agency-wide Policy on Perfonnance-Based Assistance,issued by Admin. 5/31/85
Wat°r - NPDES
Drinking Water
Air
RCRA
FIFRA
Fed. Fac.
°"to ional Guidance
Cor "X/ersight of
NPi 5 Programs
FY )87."~
(it led 4/18/86)
°Fir I Regulation-
i>3t tit.ion of:
in-, inces oC non-
C'T '. iance reported
in NCR. (8/26/85)
°QNC' Guidance
(ir jed 3/86)
"Inspection Strategy
and (Guidance
(issued 4/85)
"Revised EMS
(Enforcement Manage-
ment System)
(issued 3/86)
°NPDES Federal
Per Ity Policy
(issued 2/11/86)
°St" 'tegy Cor
is: ance oC NPDES
mir >r permits
(issued 2/86)
°"FY 85 Initiatives on
Compliance Monitoring f,
Enforcement Oversight."
6/29/84
0"Final Guidance on PWS
Grant Program Imple-
mentation"
(3/20/84)
°Regs - NIPDWR, 40CFR
Part 141 and 142.
°DW annual Reporting
Requirements - "Guidance
for PWSS Program Report-
ing Requirements"
7/9/84
°"FY's 85-86 Strategy Cor
Eliminating Persistent
Violations at Community
Water Systems." Memo
from Paul Baltay 3/18/85.
"Guidance for the Develop-
ment oC FY 86 PWSS State
Program Plans and
Enforcement Agreements"
(issued 7/3/85)
""Guidance on Timely
& Appropriate"...
for Significant Air
Violators." 6/28/84
""Timely and Approp.
Enforcement Response
Guidance" 4/11/86
"National Air Audit
System Guidelines
for FY 1986.
(issued 2/86)
""Guidance on Fed-
era lly-Repor table
Violations." 4/11/86
"Inspection Frequency
Guidance (issued
3/19/85 and
reissued 6/11/86)
""Final Technical
Guidance on Review
and Use of Excess
Emission Reports"
Memo from Ed Reich
to Air Branch Chiefs
Guidance for
Regional Offices
(issued 10/5/84)
'"Interim National
Criteria for a
Quality Hazardous
Waste Management
Program under
RCRA."
(reissued 6/86)
""RCRA Penalty
Policy" 5/8/84
"FY 1987 "RCRA
Implementation
Plan"
(reissued 5/19/86)
""RCRA Enforcement
Response Policy"
(issued 12/21/84)
(to be revised by
12/86)
0"Compliance and
Enforcement
Program Descrip-
tions in Final
Authorization
Application and
State Enforcement
Strategies," memo
from Lee Thomas to
RAs.
(issued 6/12/84)
"Final FY 87
Enforcement &
Certification
Grant Guidance
(issued 4/18/86)
0Interpretat i ve
Rule - FIFRA
State Primacy
Enforcement
Responsibilities.
40 FR Part 173
1/5/83.
FF Com-
pliance
Strategy
(to be
issued
10/86)
"FF Prog.
Manual
for Imple-
menting
CERCLA
Responsi-;
bilities
of Federal
Agencies
(draft/
85; to be
issued in
final
after
CERCLA
reautho-
rization)
-------
Page 2
NPDES
DRINKING WATER
AIR
RCRA
FIFRA
FED FAC
°Guidance on FY 86 UIC
Enforcement Agreements"
ICPG #40 (issued 6/28/85)
°"FY 87 SPMS S. OWAS
Targets for the PWSS
Program" (SNC definition)
(issued 7/10/86)
"Guidance on FY 87 UIC
Enforcement Agreements
(Draft issued 7/1/86)
"Guidance on FY 37 PWSS
Enforcement Agreetnonts
(issued 8/8/86)
"Guidance on Use of
AO Authority under
SDWA Amendments
(to be issued pending
legislation)
"Technical Guidance
on the Review and
use of Coal Sampling
and Analysis Data:"
EPA-340/1-85-010.
10/30/85 Guidance
for Regional Offices
"Compliance Moni-
toring & Enforce-
ment Log - form for
recording monthly
compliance data
from States f»
Regions.
"Technical Enforcement
Guidance on Ground
Water Monitoring
(Interim Final Aug.
1985)
"Compliance order
Guidance for Ground
Water Monitoring
(issued Aug. 85)
"Loss of Interim
Status Guidance
(issued Aug. 85)
-------
APPENDIX B*
EPA POLICY ON IMPLEMENTING NATIONALLY MANAGED OR
COORDINATED ENFORCEMENT ACTIONS
This policy addresses how EPA will handle the small
subset of federal civil enforcement cases, both administrative
and judicial, which are managed or coordinated at the EPA
Headquarters level. The policy was developed to ensure^these
actions are identified, developed and concluded consistent
with the principles set forth in the Policy Framework for
State/EPA Enforcement "Agreements." It covers the criteria
and process for deciding what cases might best be managed or
coordinated nationally; the roles and relationships of EPA
Headquarters and regional offices and the States; and protocols
for active and early consultation with the involved States
and Regions.
A. Criteria for Nationally Managed or Coordinated Enforcement
Cases
Most enforcement cases are handled at the state, local
or EPA regional level for reasons of efficiency and effectiveness
and because of the primary role that States and local governments
have in enforcement under most of the major environmental
statutes. The Policy Framework identifies several instances
in which direct enforcement actions may be taken by EPA, which
in most instances will be handled by EPA Regions pursuant to
the State/EPA Enforcement "Agreements." However, some of
those cases may most appropriately be managed or coordinated
at the national level by EPA Headquarters.
In addition to instances in which an EPA Region requests
Headquarters assistance or lead in an enforcement case, these
"national" cases will usually arise within the context of
three of the criteria for direct EPA action mentioned in the
Policy Framework:
National Precedent (legal or program precedent): the
degree to which the case is one of first impression
in law or the decision is fundamental to establishing
a basic element of the national compliance and
enforcement program. This is particularly important
for early enforcement cases under a new program or
issues that affect implementation of the program on
a national basis.
Repeat Patterns of Violations and Violators; the
degree to which there are significant patterns of
repeat violations at a given facility or type of
source or patterns of violations within multi-facility
regulated entities. The latter is of, particular
concern where the noncompliance is a matter of national
(e.g., corporate) policy or the lack of sound environ-
mental management policies and practices at a national
'Issued by the Assistant Administrator for the Office of
doni w-n. _.
-------
- 2 -
level which can best be remedied through settlement
provisions which affect such national policies and
practices.
Interstate Issues (multiple States or Regions): the
degree to which a case may cross regional or state
boundaries and requires a consistent approach.
This is particularly important where there may* be a
potential for interregional transfers of pollution
problems, and the case will present such issues'when
EPA Regions or States are defining enforcement remedies.
EPA's response to any of these circumstances can range
from increased headquarters oversight and legal or technical
assistance, to close coordination of State and Regional
enforcement actions, to direct management of the case by
Headquarters.
There are essentially two types of "National" cases. A
nationally managed case is one in which EPA Headquarters has
the responsibility for the legal and/or technical development
and management of the case(s) from the time the determination
is made that the case(s) should be nationally managed in
accordance with the criteria and process set forth in this
policy. A nationally coordinated case(s) is one which preserves
responsibility for lead legal and technical development and
management of the cases within the respective EPA regions
and/or state or local governments. This is subject, however,
to the oversight, coordination and management by a lead
Headquarters attorney and/or program staff on issues of
national or programmatic scope to ensure that all of the
cases within the scope of the nationally coordinated case are
resolved to ach-ieve the same or compatible results in furtherance
of EPA's national program and enforcement goals.
Section C below describes more fully the roles and
relationships of EPA headquarters, regional, and state
personnel, both legal and technical, in either nationally
managed or nationally coordinated cases.
There are several factors to apply to assess whether, in
addition to the normal Headquarters oversight, a case should
be handled as: (1) nationally managed; or (2) nationally
coordinated. None of these factors may necessarily be sufficient
in themselves but should be viewed as a whole. These factors
will include:
availability or most efficient use of State or EPA
Regional or Headquarters resources.
ability of the agency to affect the outcome through
alternative means. One example is issuance of
timely policy guidance which would enable the States,
local governments or EPA Regions to establish the
appropriate precedent through independent action.
-------
- 3 -
favorable venue considerations.
environmental results which could be achieved through
discrete versus concerted and coordinated action,
such as potential for affecting overall corporate
environmental practices.
location of government legal and technical expertise
at EPA Headquarters or in the Regions, recognizing
that expertise frequently can be tapped and arrange-
ments made to make expertise available where needed.
To the extent possible, where cases warrant close national
attention, EPA Headquarters will coordinate rather than
directly manage the. case on a national basis thereby enabling
Regions and States to better reflect facility-specific enforcement
considerations.
B. Process for Identifying Nationally-Managed or Coordinated
Cases Roles and Responsibilities
EPA recognizes the importance of anticipating the need
for nationally managed or coordinated cases to help strengthen
our national enforcement presence; and of widely sharing
information both on patterns of violations and violators and
on legal and program precedent with EPA Regions and States.
To do this:
Headquarters program offices, in cooperation with the
Office of Enforcement and Compliance Monitoring should
use the Agency's strategic planning process to help
identify upcoming enforcement cases of national precedence
and importance. They also should develop and disseminate
to Regions information on anticipated or likely patterns
or sources of violations for specific industries and
types of facilities.
Regional offices are responsible for raising to Head-
quarters situations which pose significant legal or
program precedent or those in which patterns of violations
are occurring or which are likely to be generic industry-
wide or company-wide which would make national case
management or coordination particularly effective.
State and local officials are encouraged to raise to EPA
Regional Offices situations identified above which would
make national case management or coordination particularly
effective.
Whether a case will be managed or coordinated at the
national level will be decided by the Assistant Administrator
for Enforcement and Compliance Monitoring after full consul-
tation with the affected program Assistant Administrators,
Regional Administrators and state or local governments in
what is intended to be a consensus building process. There
will be a full discussion among all of the parties of all of
-------
- 4 -
the ramifications for the program and a review of all of the
important criteria involved in the decision. In the event of
a lack of consensus as to whether the case should be managed
or coordinated at the national level, the AA for OECM shall
make the determination, with an opportunity for a hearing
and timely appeal to the Administrator or Deputy Admini-
strator by the Regional or other EPA Assistant Administrator.
The Regions will be responsible for communicating with
any affected States using mechanisms established in the State/
EPA Enforcement "Agreements," to raise the possibility of
national case management or coordination and to ensure that
timely information on the status of any independent state,
local or regional enforcement actions can and would be factored
into the decisions regarding: (1) whether to manage the case
nationally; (2) whether to coordinate the case nationally; (3)
what legal and technical assistance might be provided in a State
lead case; and (4) what facilities to include in the action.
C. Case Development Roles and Responsibilities
Nationally managed cases are those that are managed out
of EPA Headquarters with a lead headquarters enforcement
attorney and a designated lead headquarters program contact.
Notwithstanding headquarters lead, in most instances, timely
and responsive Regional office legal and technical support
and assistance is expected in developing and managing the
case. In these instances, the Regions will receive credit
for a case referral (on a facility basis) for this effort.
The decision on the extent of Regional office involvement
and case referral credit will be made at ths time of decision
that the case s,hould be nationally managed. Regions which
play a significant role in the development and/or prosecution
of a case will be involved in the decision-making process in
any case settlement proceedings and the Regional Administrator
will have the opportunity to formally concur in any settlement.
Nationally coordinated cases are those that are coordi-
nated out of EPA Headquarters with lead regional and/or state
or local attorneys and associated program office staff. The
headquarters attorney assigned to the case(s) and designated
headquarters program office contact have clear responsibility
for ensuring national issues involved in the case which
require national coordination are clearly identified and
developed and in coordinating the facility-specific actions
of the regional offices to ensure that the remedies and
policies applied are consistent. This goes beyond the normal
headquarters oversight role. The headquarters officials have
both a facilitator role in coordinating information exchange
and a policy role in influencing the outcome for the identified
issues of national concern.
-------
- 5 -
Whether a case is nationally managed or nationally
coordinated/ as a general rule if EPA is managing a case,
States will be invited to participate fully in case develop-
ment and to formally join in the proceedings if they so
desire by attending meetings and planning sessions. States
will be consulted on settlement decisions but will be asked
to formally concur in the settlement only if they are parties
to the litigation. t
On a case-by-case basis, the National Enforcement and
Investigations Center (NEIC) may be asked to play a role in
either type of national case to coordinate evidence gathering,
provide needed consistency in technical case development
and policy, witnesses and chain of custody, and/or to monitor
consent decree compliance.
'.
D. ./-Press Releases and Major Communications
A communications plan should be developed at an early
stage in the process. This should ensure that all of the
participating parties have an opportunity to communicate
their role in the case and its outcome. Most important, the
communications plan should ensure that the essential message
from the case, e.g., the anticipated precedents, gets sufficient
public attention to serve as a deterrent for potential future
violations,
All regional and state co-plaintiffs will be able to
issue their own regional, state-specific or joint press
releases regarding the case. However, the timing of those
releases should be coordinated so that they are released
simultaneously, if possible.
It is particularly important that the agencies get
maximum benefit from the deterrent effect of these significant
national cases through such mechanisms as:
more detailed press releases to trade publications
i.e., with background information and questions and
answers
development of articles
interviews with press for development of more in-
depth reporting
press conferences
meetings with public/environmental groups -- including
meetings on the settlement of national cases which
have generated intense local or national interest
speeches before industry groups about actions
communications with congressional committees
-------
Appendix C
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
Mtf%t
OCT30B65
MEMORANDUM
SUBJECT: Division of Penalties with State and Local Governments
PROM: Courtney M. Price C&CCuT /V>
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Administrators
Associate Enforcement Counsels
Program Enforcement Division Directors
Regional Counsels
#
it
This memorandum provides guidance to Agency enforcement
attorneys on the division of civil penalties with state and
local governments, when appropriate. In his 'Policy Framework
for State/EPA Enforcement Agreements" of June 26, 1984, Deputy
Administrator Al Aim stated that the EPA should arrange, for
penalties to accrue to states where permitted by law. This
statement generated a number of inquiries from states and from
the Regions. Both the states and the Regions were particularly
interested in what factors EPA would consider in dividing
penalties with state and local governments. In addition, the
issue was raised in two recent cases, U.S. v Jones t Laughlin
(N.D. Ohio) and U.S. v Georgia Pacific Corporation (M.D. La.).
In each case, a state or local governmental entity requested a
significant portion of the involved penalty. Consequently, OECM
and DOJ jointly concluded that this policy was needed.
EPA generally encourages state and local participation in
federal environmental enforcement actions. State and local
entities may share in civil penalties that result from their
participation, to the extent that penalty division is permitted
by federal, state and local law, and is appropriate under the
circumstances of the individual case. Penalty division advances
federal enforcement goals by:
1) encouraging states to develop and maintain active
enforcement programs, and
2) enhancing federal/state cooperation in nvironmental
enforcement.
-------
-2-
Rowever, penalty division should be approached cautiously because
of certain inherent concerns, including:
1) increased complexity in negotiations among the
various parties, and the accompanying potential
for federal/state disagreement over penalty
division; and
2) compliance with the Miscellaneous Receipts Act, 31
U.S.C. $3302, which requires that funds properly
payable to the United States Bust be paid to the U.S.
Treasury. Thus any agreement on the division of
penalties must be completed prior to issuance of and
incorporated into a consent decree.
As in any other court-ordered assessment of penalties under
the statutes administered by EPA, advance coordination and
approval of penalty divisions with the Department of Justice is
required. Similarly, the Department of Justice will not agree /
to any penalty divisions without my advance concurrence or that
of my designee. In accordance with current Agency policy,
advance copies of all consent decrees, including those involv-
ing penalty divisions, should be forwarded to the appropriate
Associate Enforcement Counsel for review prior to Commencement
of negotiations.
The following factors should be considered in deciding if
penalty division is appropriate:
*
1) The state or local government must have an indepen-
dent claim under federal or state law that supports
its entitlement to civil penalties. Zf the entire
basis of the litigation is the federal enforcement
action, then .the entire penalty would be due to the
federal government.
2) The state or local government must have the authority
. to seek civil penalties. If a state or local govern-
ment is authorized to seek only limited civil
penalties, it is ineligible to share in penalties
beyond its statutory limit.
3) The state or local government must have partici-
pated actively in prosecuting the case. For example,
the state or local government must have filed com-
plaints and pleadings, asserted claims for penalties
and been actively involved in both litigating the
case and any negotiations that took place pursuant
to the enforcement action.
-------
-3-
4) For conttnpt actions, the state or local government
nust have participated in the underlying action
giving rise to the contempt action, been a signatory
to the underlying consent decree, participated
in the contempt action by filing pleadings asserting
claims for penalties, and been actively involved
in both litigating the case and any negotiations
connected with that proceeding.j/
The penalties should be divided in a proposed consent
decree based on the level of participation and the penalty
assessment authority of the state or locality. Penalty division
nay be accomplished more readily if specific tasks are assigned
to particular entities during the course of the litigation.
But in all events, the division should reflect a fair apportion-
ment based on the technical and legal contributions of the
participants, within the limits of each participant's statutory
entitlement to penalties. Penalty division should not take
place until the end of settlement negotiation. The subject
of penalty division is a matter for discussion among the
governmental plaintiffs. It is inappropriate for the defendant
to participate in such discussions.
cc: F. Henry Habicht II, Assistant Attorney General
Land and Natural Resources Division
I/ If the consent decree contains stipulated penalties and
Specifies how they are to be divided, the government will
abide by those terms.
-------
VI.H.4. "Policy on Flexible State Enforcement Responses to Small Community
Violations", November 22, 1995.
-------
'
FROM: Steven A. He
Assistant Admini
TO: Assistant Administrators
General Counsel
Regional Administrators .
Deputy Regional Administrators
Regional Counsel
Regional Enforcement Coordinators
The attached Policy on Flexible State Enforcement Responses
to Small Community Violations (Small Communities Policy)
implements parts of Reinventing Environmental Regulation
Initiatives 13 and 21 announced by President Clinton on March 16,
1995. These two initiatives seek to enhance the environmental
compliance of small communities and to promote alternative
strategies for communities to achieve environmental and economic
goals. ' '
Specifically, the Small Communities Policy seeks to assure
States that they have, within appropriate limits, the flexibility
to design and use multimedia compliance assistance and compliance
prioritization measures as alternatives to traditional
enforcement responses when addressing a small community's
environmental violations. The Small Community Policy establishes
the parameters for State small community environmental compliance
assistance programs that EPA will generally consider adequate and
recommends options for States to follow in developing and
implementing their programs, but leaves many of the details to
the discretion of States. EPA believes this approach will ensure
adequate protection of public health and the environment while
affording States flexibility to develop small community
environmental compliance assistance programs tailored to local
conditions and specific State needs.
R*cycto4/R«cyciabl*
PiMKt m» SajICtftt* Wi on pep* M
oomim !« SO* rteycM «nr
-------
- 2 -
Please note that this policy does not mandate action on the
part of States. States are free to offer compliance assistance
or not. Should States choose, however, to offer environmental
compliance assistance to small communities, those doing so in a
manner consistent with the framework provided in this policy can
generally expect EPA to defer to their actions.
I wish to thank the many commenters who reviewed the
June 30, 1995 draft policy and provided comments. The policy I
issue today is a better document because of your efforts. If you
have questions or further comments, please contact Kenneth Harmon
of the Chemical, Commercial Services and Municipal Division at
(202) 564-4079.
Attachments
cc: Small Community Coordinators, Regions I-X
-------
Policy on Flexible State Enforcement Responses
- - to Small Community Violations
United States Environmental Protection Agency
November 1995
This policy expresses EPA's support for States'1 use of enforcement flexibility to
provide compliance incentives for small communities. EPA acknowledges that States and
small communities can realize environmental benefits by negotiating, entering into, and
implementing enforceable compliance agreements and schedules that require communities to
correct all of their environmental violations expeditiously while allowing the community to
prioritize among competing environmental mandates on the basis of comparative risk2.
States may provide small communities an incentive to request compliance assistance by
waiving part or all of the penalty for a small community's violations if the criteria of this
policy have been met. If a State acts in accordance with this policy and addresses small
community environmental noncompliance with compliance assistance in a way that represents
reasonable progress toward compliance, EPA generally will not pursue a separate Federal
civil administrative or judicial action for penalties or additional injunctive relief.
This policy does not apply to any criminal conduct by small communities or their
employees. To the extent that this policy may differ from the terms of other applicable
enforcement response policies, this document supersedes those policies.
1 This policy will also apply to the actions of territories and to the actions of Native
American Tribes where conditions have been met for EPA to treat the Tribe as a State.
2 EPA currently has a number of risk assessment resources available to the public,
including its computer-based Information Risk Information System (IRIS). EPA comparative
risk projects across the country have provided training and technical assistance to more than
45 State, local, tribal and watershed risk assessment efforts in an attempt to bring together
stakeholders to reach consensus on which local environmental problems pose the most risk to
human health, ecosystem health, and quality of life; and to develop consensus on an action
plan to reduce those risks. EPA does not suggest mat States and small communities need
prepare a formal comparative risk assessment as part of the small community environmental
compliance assistance process.
-------
flexible State Enforcement Responses to Small Community Violation November 1995
Flexible State Enforcement Responses
EPA's deference to a State's exercise of enforcement discretion in response to a small
community's violations will be based on an assessment of the adequacy of the process the
State establishes and follows in:
responding expeditiously to a community's request for compliance assistance;
p
selecting the communities to which it offers compliance assistance and a flexible
enforcement response;
assessing the community's good faith and compliance status;
establishing priorities for addressing violations; and
ensuring prompt correction of all environmental violations.
EPA will give its deference more readily to a State that has previously submitted a
description of its small community environmental compliance assistance program to the
Agency, thereby allowing EPA to familiarize itself with the adequacy of the State's
processes.
Selecting communities
EPA intends this policy to apply only to small communities unable to satisfy all
applicable environmental mandates without the State's compliance assistance. Such
communities, generally comprised of fewer than 2,500 residents3, should be:
non-profit
governing entities (incorporated or unincorporated)
that own facilities that supply municipal services.
EPA's evaluation of the appropriateness of a State's, small community environmental
compliance assistance program will depend in part on whether the State uses measures of
administrative, technical, and financial capacity to limit provision of the benefits of this .
policy to those communities that truly need assistance. Such capacity measures could
3 EPA selected a population figure of 2,500 to be consistent with 42 U.S.C. 6908, which
established the Small Town Environmental Planning Program, and which defined the term
small town to mean "an incorporated or unincorporated community...with a population of
less than 2,500."
-------
flexible State Enforcement Responses to Small Community Violations * November 1995 page 3
include,, among other tilings, number of staff and their responsibilities, degree of isolation
from other nearby communities; evaluation of existing infrastructure, average household
income, the last decade's median housing values, employment opportunities, population
projections, population age representation, revenue sources, revenue generating capacity, the
level of government that operates the utility systems, current bond debt, and an assessment of
the impact of other Federal mandates competing with environmental mandates for the
community's resources.
Not less than quarterly, a State should provide EPA with a list of communities
participating in its small community environmental compliance assistance program to ensure
proper State and Federal coordination on enforcement activity.
Assessing good faith and compliance status
In considering whether a State has established and is following an adequate process
for assessing a small community's good faith, EPA generally will look at such factors as the
participating communities' candor in contacts with State regulators and the communities'
efforts to comply with applicable environmental requirements. Measures of a small
community's efforts to comply include:
attempts to comply or a request for compliance assistance prior to the initiation of an
enforcement response; .
prompt correction of known violations;
willingness to remediate harm to public health, welfare, or the environment;
readiness to enter .into a written and enforceable compliance agreement and schedule;
and
adherence to the schedule.
A State's assessment of a small community's compliance status should identify:
every environmental requirement to which the community's municipal operations are
subject;
the community's current and anticipated future violations of those requirements:
the comparative risk to public health, welfare, or the environment of each current and
anticipated future violation; and
the community's compliance options.
-------
Flexible State Enforcement Responses to Small Community Violations * NoTember 1995 page 4
In addition, EPA recommends that the process developed by the State include consideration
of regionalization and restructuring as compliance alternatives, and consideration of the
impact of promulgated regulations scheduled to become effective in the future.
Priorities for addressing violations
States seeking EPA's deference should require small communities to correct any
identified violations of environmental regulations as soon as possible, taking into
consideration the community's administrative, technical, and financial capacities, and the
State's ability to assist in strengthening those capacities. A small community should address
all of its violations in order of risk-based priority.4 Any identified violation or
circumstance that may present an imminent and substantial endangerment to, has caused or is
causing actual serious harm to, or presents a serious threat to, public health, welfare, or the
environment is to be addressed immediately in a manner that abates the endangerment or
harm and reduces the threat. Activities necessary to abate the endangerment or harm and
reduce the threat posed by such violations or circumstances are not to be delayed while the
State and small community establish and implement the process for assigning priorities for
correcting other violations. .
Ensuring prompt correction of violations
If the small community cannot correct all of its violations within 180 days of the
State's commencement of compliance assistance to the community, the State and the
community should, within 180 days of the State's commencement of compliance assistance to
the community, enter into and begin implementing a written and enforceable compliance
agreement and schedule5 that:
establish a specified period for correcting all outstanding violations in order of risk-
based priority;6 .
4 EPA does not intend mat establishment of risk-based priorities be viewed as mandating
delay in addressing low priority violations that can be easily and quickly corrected without
affecting progress toward addressing higher priority violations requiring long term
compliance efforts. .
5 Neither a State nor a community may unilaterally alter or supersede a community's
obligations under existing Federal administrative orders or Federal judicial consent decrees.
6 States may allow weighing of unique local concerns and characisristics, but the process
should be sufficiently standardized and objective that an impartial third person using the same
process and the same facts would not reach significantly different results. Public notification
and public participation are an important part of the priority setting process.
-------
Flexible State Enforcement Responses to Small Community Violations No?ember 1995 page 5
incorporate interim milestones that demonstrate reasonable progress toward
compliance;
contain provisions to ensure continued compliance with all environmental
requirements with which the community is in compliance at the time the agreement is
entered; and
incorporate provisions, where they would be applicable to the small community, to
ensure future compliance with any additional already promulgated environmental
requirements that will become effective after the agreement is signed.
Consultation with EPA during the drafting of a compliance agreement and schedule
and the forwarding of final compliance agreements and schedules to EPA are recommended
to ensure appropriate coordination between the State and EPA.
I . ;
Limits on EPA Deference
EPA reserves all of its enforcement authorities. EPA will generally defer to a State's
exercise of its enforcement discretion in accordance with this policy, except that EPA
reserves its enforcement discretion with respect to any violation or circumstance that may
present an imminent and substantial endangerment to, has caused or is causing actual serious
harm to, or presents a serious threat to, public health, welfare, or the environment.7
The Policy on Flexible State Enforcement Responses to Small Community Violations
does not apply if, in EPA's judgment:
a State's small community environmental compliance assistance program process fails
to .satisfy the adequacy criteria stated above; or
a State's application of its small community environmental compliance' assistance
program process fails in a specific case adequately to protect public health and the
environment because it neither requires nor results in reasonable progress toward, and
achievement of, environmental compliance by a date certain.
7 EPA will regard any unaddressed violation or circumstance mat may present an
imminent and substantial endangerment to, has caused or is causing actual serious harm to,
or presents a serious threat to, public health, welfare, or the environment in a small
community participating in a State environmental compliance assistance program as a matter
of national significance which requires consultation with or the concurrence of, as
appropriate, the Assistant Administrator for Enforcement and Compliance Assurance or his
or her delegatee before initiation of an EPA enforcement response.
-------
Flexible State Enforcement Responses to Small Community Violations November 1995 » page 6
Where EPA" determines that this policy does not apply, and where EPA has reserved
its enforcement discretion, other existing EPA enforcement policies remain applicable. The
State's and EPA's options in these circumstances include discretion to take or not take formal
enforcement action in light of factual, equitable, or community capacity considerations with
respect to violations that had been identified during compliance assistance and were not
corrected. Neither the State's actions in providing, nor in failing to provide, compliance
assistance shall constitute a legal defense in any enforcement action. However, a
community's good faith efforts to correct violations during compliance assistance may be
considered a mitigating factor in determining the appropriate enforcement response or penalty
in subsequent enforcement actions. .
Nothing in this policy is intended to release a State from any obligations to supply
EPA with required routinely collected and reported information. As described above, States
should provide EPA with lists of participating small communities and copies of final
compliance agreements and schedules. States should also give EPA immediate notice upon
discovery of a violation or circumstance that may present an imminent and substantial
endangerment to, has caused or is causing actual serious harm to, or presents serious threats
to, public health, welfare, or the environment.
This policy has no effect on the existing authority of citizens to initiate a legal action
against a community alleging environmental violations.
This policy sets form factors for consideration that will guide the Agency in its
. exercise of enforcement discretion. It states the Agency's views as to how the Agency
intends to allocate and structure enforcement resources. The policy is not final agency
action, and is intended as guidance. This policy is not intended for use in pleading, or at
hearing or trial. It does not create any rights, duties, obligations, or defenses, implied or
otherwise, in any third parties.
Policy Assessment
Measuring the success of compliance assistance programs is a critical component of
EPA's ability to assess the results of compliance and enforcement activities. EPA will work
with States to evaluate the effectiveness of the Policy on Flexible State Enforcement
Responses to Small Community Violations. Within three yean following its issuance, EPA
will consider whether the policy should be continued, modified, or discontinued.
-------
VI. I.
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
I. PROVIDING ENFORCEMENT INFORMATION TO OUTSIDE PARTIES
-------
VI.I.I.
"Policy Against No Action Assurances", dated November 16, 1984.
See GM-34.*
-------
VI.I.2.
"Enforcement Document Release Guideline", dated September 16,
1985. GM-43.*
-------
VI.I.3.
"Policy on Publicizing Enforcement Activities", dated November 21, 1985.
Modified by 1.5, below.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV 2 I 1335
MEMORANDUM
SUBJECT;
FROM:
TO:
Policy on Publicizing Enforcement nativities
cement nativiti
/
-------
EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES
I. PURPOSE
This memorandum establishes EPA policy on informing the
public about Agency enforcement activities. This policy is
intended to improve EPA communication with the public and the
regulated community regarding the goals and activities of the
Agency's enforcement program. Appropriate publication of EPA
enforcement efforts will both encourage compliance and serve as
a deterrent to noncompliance. The policy provides for consistent
public outreach among headquarters and regional offices.
II. STATEMENT OF POLICY
It is the policy of EPA to use the publicity of enforcement
activities as a key element of the Agency's program to deter
noncompliance with environmental laws and regulations. Publicizing
Agency enforcement activities on an active and timely basis informs
both the public and the regulated community about EPA's efforts
to promote compliance.
Press releases should be issued for judicial and administrative
enforcement actions, including settlements and successful rulings,
and other significant enforcement program activities. Furl^
the Agency should consider employing a range of methods of*
publicity such as press conferences and informal press briefings,
articles, prepared statements, interviews and appearances at
seminars by knowledg'eable and authorized representatives of the
Agency to inform the public of these activities. EPA will work
closely with the states in developing publicity on joint enforcement
activities and in supporting state enforcement efforts.
III. IMPLEMENTATION OF POLICY
A. When to Use Press Releases I/
1. Individual Cases
It is EPA policy to issue press releases when the Agency:
(1) files a judicial action or issues a major administrative
order or complaint (including a notice of proposed contractor
listing and the administrative decision to list); (2) enters
into a major judicial or administrative consent decree or files
a motion to enforce such a decree? or (3) receives a successful
court ruling. In determining whether to issue a press release,
iy The term "press release" includes the traditional Agency press
release, press advisories, notes to correspondents and press
statements. The decision on what method should be used in a given
situation must be coordinated with tha appropriate public affairs
office(s).
-------
-2-
EPA personnel will consider: (1) the amount of the proposed
or assessed penalty (e.g., greater than $25,000); (2) the signifir^B
of the relief sought or required in the case, and its public
health or environmental impact; (3) whether the case would
create national or program precedence; and (4) whether unique
relief is sought. However, even enforcement actions- that do not
meet these criteria may be appropriate for local publicity in
the area where the violative conduct occurred. Where appropriate,
a single press release may be issued which covers a group or
category of similar violations.
Where possible, press releases should mention the environmental
result desired or achieved by EPA's action. For example, where
EPA determines that a particular enforcement action resulted (or
will result) in an improvement in a stream's water quality, the
press release should note such results. In addition, press
releases must include the penalty agreed to in settlement or
ordered by a court.
Press releases can also be used to build better relationships
with the states, the regulated community, and environmental groups.
To this end, EPA should acknowledge efforts by outside groups to
foster compliance. For example, where a group supports EPA
enforcement efforts by helping to expedite the cleanup of ^ \
Superfund site, EPA may express its support for such initiatives
by issuing a press release, issuing a statement jointly with the
group, or conducting a joint press conference.
2. Major Policies
In addition to publicizing individual enforcement cases, EPA
should publicize major enforcement policy statements and other
enforcement program activities since knowledge of Agency policies
by the regulated community can deter future violations. Such
publicity may include the use of articles and other prepared
statements on enforcement subjects of current interest.
3. .Program Performance
Headquarters and regional offices should consider issuing
quarterly and annual reports on Agency enforcement efforts.
Such summaries present an overview of the Agency's and Regions'
enforcement activities; they will allow the public to view
EPA's enforcement program over time, and thus give perspective
to our overall enforcement efforts. The summaries should cover
trends and developments in Agency enforcement activities, and
may include lists of enforcement actions filed under each statute.
The Office of Enforcement and Compliance Monitoring's (OECM)
Office of Compliance Analysis and Program Operations, and the
Offices of Regional Counsel will assist the Public Affairs Offices
in this data gathering. Public Affairs Offices can also rely on
the figures contained in the Strategic Planning Management System.t
-------
-3-
4. Press Releases and Settlement Agreements
EPA has, on occasion, agreed not to issue a press release
as part of a settlement agreement. EPA should no longer agree
to a settlement which bars a press release or which restricts
the content of a press release. On January 30, 1985, the Deputy
Administrator issued an abbreviated press release policy, which
stated in pertinent part that: "It is against EPA policy to
negotiate the agency's option to issue press releases, or the
substance of press releases, with parties outside of EPA,
particularly those parties involved in settlements, consent
decrees or the regulatory process." This policy will help to
ensure consistency in the preparation of press releases and
equitable treatment of alleged violators.
B. Approval of Press Releases
EPA must ensure that press releases and other publicity
receive high priority in all reviewing offices. By memorandum
dated August 23, 1984, the Office of External Affairs directed
program offices to review and comment on all press releases
within two days after the Office of Public Affairs submits its
draft to the program office; otherwise concurrence is assumed.
This review policy extends to OECM and the Offices of Regional
Counsel for enforcement-related press releases.
C. Coordination
> \
\
1 . Enforcement, Program, and Public Affairs Offices
More active use of publicity requires improved coordination
among regional and headquarters enforcement attorneys, program
offices and public affairs offices. The lead office in an
enforcement case, generally the regional program office in an
administrative action and the Office of Regional Counsel or OECM
in a judicial action, should notify the appropriate Public Affairs
Office at the earliest possible time to discuss overall strategy
for communicating the Agency's action (e.g., prior notice to
state or local officials) and the the timing of a press release.
The lead office should stay in close contact with Public Affairs
as the matter approaches fruition.
2. Regional and Hea'dquarters Offices of Public Affairs
Regional and headquarters Public Affairs Offices should
coordinate in developing press releases both for regionally-based
actions that have national implications and for nationally managed
or coordinated enforcement actions. Whenever possible, both
regional and headquarters offices should send copies of draft
press releases to their counterparts for review and comment.
Both such offices should also send copies of final releases to
their counterparts.
-------
-4-
3. EPA and DOJ
EPA can further improve the timeliness and effectiveness
of its press releases regarding judicial actions by coordinating
with DOJ's Office of Public Affairs. When an EPA Office of
Public Affairs decides that a press release in a judicial enforce-
ment case is appropriate, it should notify DOJ or the appropriate
U.S. Attorney's Office to ensure timeliness and consistency in
preparation of press releases. DOJ has been requested to notify
OECM when DOJ intends to issue a release on an EPA-related case.
EPA's Office of Public Affairs will immediately review such
draft releases, and, if necessary to present the Agency's position
or additional information, will prepare an Agency release.
4. EPA and the States
Another important goal of this policy is to encourage
cooperative enforcement publicity initiatives with the states.
The June 26, 1984, "EPA Policy on Implementing the State/Federal
Partnership in Enforcement: State/Federal Enforcement 'Agree-
ments,1" describes key subjects that EPA should 'discuss with
the states in forming state-EPA Enforcement Agreements. The
section on "Press Releases and Public Information," states that
the ".Region and State should discuss opportunities for joint
press releases on enforcement actions and public accounting of
both State and Federal accomplishments in compliance and ertfcoi^e-
ment." Further, as discussed in the subsequent January 4, 1983,
Agency guidance on "Implementing Nationally Managed or Coordinated,
Enforcement Actions," the timing of state and EPA releases
"should be coordinated so that they are released simultaneously."
Accordingly, EPA Public Affairs Offices should consult
with the relevant state agency on an EPA' press release or
other media event which affects the State. EPA could offer
the State the option of joining in a press release or a press
conference where the State has been involved in the underlying
enforcement action. Further, EPA-generated press releases and
public information reports should acknowledge and give credit
to .relevant state actions and accomplishments when appropriate.
Finally, it is requested that EPA Public Affairs Offices
send the State a copy of the EPA press release on any enforcement
activity arising in that state.
D. Distribution of Press Releases
The distribution of EPA press releases is as important as
their timeliness. Press releases may be distributed to the local,
national, and trade press, and local and network television
stations.
-------
-5-
1. Local and National Media
EPA must "direct" its press releases to ensure that the
appropriate geographical areas learn about EPA enforcement
activities. To accomplish this goal, the appropriate Public
Affairs Office should send a press release to the media and
interest groups in the affected area, i.e., the local newspaper
and other local publications, television and radio stations, and
citizen groups. The headquarters Public Affairs Office, in con-
junction with the appropriate regional office, will issue press
releases to the national press and major television networks
where an EPA enforcement activity has national implications.
2. Targeted Trade Press and Mailing Lists
The Agency must also disseminate information about enforce-
ment activities to affected industries. Sending a press release
to relevant trade publications and newsletters, particularly for
a significant case, will put other potential violators on
notice that EPA is enforcing against specific conduct in the .
industry. It is also useful to follow up such press releases
with speeches to industry groups and articles in relevant trade
publications, reinforcing the Agency's commitment to compliance.
To ensure the appropriate distribution of publicity, we are
requesting each of the regional Public Affairs Offices, in coopera-
tion with the Regional Counsels and regional program offices, to
establish or review and update their mailing lists of print media,
radio and television stations, state and local officials, trade
publications, and business and industry groups for each of the
enforcement programs conducted in the Regions.
E. Use of Publicity Other Than Press Releases
EPA headquarters and regional offices have generally relied
on press releases to disseminate information on enforcement
activities. Other types of enforcement publicity are also
appropriate in certain instances.
1. Press Conferences and Informal Press Briefings
Press conferences can be a useful device for highlighting
an enforcement activity and responding to public concerns in a
specific area. Regional Administrators should consider using
press conferences to announce major enforcement actions and to
elaborate on important simultaneously issued press releases.
Press conferences should also be considered where an existing or
potential public hazard is involved. The regional Public Affairs
Office should always inform the headquarters Public Affairs
-------
-6-
Office when it decides to hold a press conference to provide an
opportunity for the Administrator's advance knowledge and involve-
ment if necessary.
2. Informal Meetings with Constituent Groups
To further supplement EPA efforts to inform the public and
regulated community, regional offices should meet often with
constituent groups (states, environmental groups, industry, and
the press) to brief these groups on recent enforcement developments.
These meetings can be organized by the Public Affairs Offices.
By informing the public, EPA increases public interest in its
enforcement program and thereby encourages compliance.
3. Responding to Inaccurate Statements
EPA should selectively respond to incorrect statements made
about EPA enforcement activities. For example, EPA may want to
respond to an editorial or other article which inaccurately
characterizes EPA enforcement at a Superfund site with a "letter
to the editor." Where an agency response is deemed to be
appropriate, it should promptly follow the inaccurate statement.
4. Articles and Prepared Statements
EPA's Public Affairs Offices and the Office of Enforcejner^:
and Compliance Monitoring occasionally prepare articles on various
aspects of the Agency's enforcement program. For example, Region I
issues a biweekly column to several newspapers in the Region
covering timely enforcement issues such as asbestos in schools.
We encourage all regional and headquarters offices to prepare
feature articles on enforcement issues. When the regional office
is developing an article on a subject wi'th national implications,
it should contact the headquarters Office of Public Affairs to
obtain a possible quote from the Administrator and to discuss
whether the article should be expanded to a national perspective.
Likewise, appropriate regions should be consulted in the preparation
of headquarters articles or statements which refer to actions of qr
facilities in particular regions.
5. Interviews
In some cases, headquarters and regional Public Affairs
Offices should consider arranging media interviews with the
Regional Administrator, Deputy Administrator, the Administrator,
or other EPA officials. Such an interview will reflect the
Agency's position on a particular enforcement activity or
explain EPA's response to an enforcement problem.
-------
VI.I.4,
"Memorandum to General Counsels" (Concerning FOI requests pertaining to
subjects involved in ongoing or anticipated litigation), dated March 27,
1986.
-------
-------
Office of the Associate Attorney Genera!
>.t Associate Auointy C«n«ral u-.-j^.Tf/on. D C ?0!
March 27, 1986
MEMORANDUM TO GENERAL COUNSELS
It is becoming increasingly obvious that the ability of the
Department of Justice effectively to represent the interests of
the various agencies of the Executive Branch is being severely
impaired by.difficulties in coordinating obligations under the
Freedom of Information Act ("FOIA") with litigation activi- .
ties. This problem is particularly serious for the United
States Attorneys' offices and, if allowed to continue unchecked,
will almost certainly result in the loss of litigation that may
be of significant importance to your agency.
FOIA, of course, is generally available to any person
seek ing'government documents. FOIA requesters often do not
identify the parties or the special interests they represent,
and almost neverindicate whetherthe requested documents will
be used to support ongoinc or contemplated litigation against
the United States. Compounding the problera, FOIA personnel
frequently are not fully eiware of the full extent of the
governmental interests implicated by a FOIA request. In
particular, FOIA personnel often do not know of actual or
impending litigation involving the subject matter of the
requested documents.
Typically, each agency has a disclosure system designed to
meet the needs and demands upon the agency in view of its
substantive' programs. Lack of coordination between these
personnel and the persons with knowledge that documents relate
to pending or potential litigation severely impairs the ability
of the attorneys responsible for litigation effectively to
represent the interests of the United States. Accordingly, I_ am
requesting that all agencies establish procedures which will
-------
- 2 -
identify FOIA requests which pertain to subjects involved ^p
ongoing or anticipated litigation.
If a FOIA request involves matters pertaining to ongoing
litigation, it is essential that both the agency and the
Department of Justice attorneys assigned to the litigation be
informed of the request. to ensure coordination of the.
government ' s position in the litigation with any release of
documents under the FOIA. If no litigation is pending, but
can be reasonably anticipated in the future, the FOIA request
should be carefully reviewed by an agency attorney in light of
that likelihood. In all instances where litigation' is a
possibility, agencies should maintain records identifying the
documents rel'eased pursuant to~a FDIA request so that the
litigating attorneys can Decode tuny informed of the documents
made available to other parties. In addition,' documents
relating to agency investigations of matters which are in
litigation or may reasonably be expected to result in litigation
should be^marked , where appropriate, to indicate that they are
at tor hoy w o r k_ p_r_o.d.u j±r--> This wj_l.l_assist the FOIA personnel in.
identify ing. p'Ot'e'n't'i'a'Tl'v exempt documents.. Discretionary
disclosures should be coordinated with the litigating attorney
rather than relying solely on the existing FOIA release
procedures. This will permit the attorney to protect the
interests of the agency implicated in the litigation itself.
The general nature of the guidance set forth above meshes
well with many agencies' present practices. Hew ever, because
the persons responsible for disclosure sometimes are unaware of
litigative concerns, I ask that you ensure that persons
responsible for maintenance of documents subject to a TO" I A
is an ~
pertinent to
pending .or potential litigation. In other words, the (document"^.
leu st_p_di~a-nr should be told that it is his or her duty to inform"""'
responsible for maintenance of documents subject t
regu'est notify disclosure personnel whenever tr.ere
'indication that requestp^ rinr-ir-gnfg ara n^ r.^y he
the FOIA personnel of any pending or potential litigation
{pertaining to documents which are the subject of a FOIA reques1
To summarize, I request that:
0 E a c h^ d o c u ment__cu_s_tod.j.an' be required to notify any
person within the agency interested in the
documents of any potential or pending litigation on
the subject to which the documents pertain;
-------
- 3 -
0 Litigating attorneys (including Department of Justice
attorneys) always be contacted when a FOIA
request seeks .documents pertaining to ongoing
litigation;
0 All discretionary disclosures relating to matters in
litigation be closely coordinated with the litigating
attorneys;
0 A record be maintained so that 'the litigating attorneys
will know which documents have been released;
0 Documents be marked as attorney work product when it is
correct and feasible to do so;
e FOIA personnel be made sensitive to the potential
litigative interests of the government;
0 Litigating attorneys routinely check with the agency's
FOIA personnel in every litigation matter to determine
whether any relevant documents have been the subject of
a FOIA request.
I would appreciate ycur ccrjr.ents and suggestions on the
proposals outlined above to enhance our ability to defend
significant suits affecting each government agency. In
addition, I suggest that'you direct the persons responsible for"
FOIA matters within your agency to provide a report to you on
the actions taken to implement these proposals. I would greatly
appreciate it if you would send a copy of that report to Mr.
David J. Anderson, Branch Director, Federal Programs Branch,
Roora 3643, plus any otheir periodic reports you may request to
ensure that the concerns expressed in this letter, which I am
sure you share, are not forgotten when personnel changes occur'
or over the course of time.
I firmly believe that these proposals, if implemented, will
significantly enhance the ability of t£e~~D"e>artment of Justice
to protect your agency's interests /rlf litigation. Thank you for
your cooperation in this matter
ARNOLD T. BURN
Associate Attorney GeY.eral
cc: Executive Office fc: United States Attcrr.evs
-------
VI.I.5
"Addendum to 6M-46: Policy on Publicizing Enforcement
Activities," dated August 4, 1987. .(Contains discussions on
explaining differences between initial penalty demands and
final penalty.)
-------
-------
UNITED STATE5 ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 204CO
-4 B67
MEMORANDUM
SUBJECT: Addendum to GM-46: Policy on Publicizing
Enforcement Activities
FROM: Thomas L. Adams, Jr.
Assistant Administrator for- Enforcement
and Compliance Monitoring
Jennifer Joy Wil:
Assistant A
-------
. . -2-
Press releases issued at the filing of cases normally
state the amount of the civil penalty being sought by the
Agency* The proposed penalty may be the maximum statutory
amount allowable under applicable law, or a penalty amount
as calculated by application of an Agency penalty policy which
assigns specific penalties to various violations of law.
When a case is settled, however, the penalty to be paid
by the violator is oftentimes appreciably less than the
penalty sought by the Agency at the initiation of the action.
Members of the public may question any difference between
these two amounts, especially persons who are not familiar with
the laws, regulations, and published policies of the; Agency.
The Addendum points out that a number of mitigating factors
can result in a penalty adjustment, and that Congress on occasion
has dictated that EPA take into account such factors in determin-
ing the amount of a civil penalty (e.g., TSCA $16, 15 U.S.C.
2615). ~
Attachment
-------
ADDENDUM TO EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES,
GM-46, ISSUED NOVEMBER 21, 1985
I. PURPOSE .
This.addendum to the EPA Policy on Publicizing Enforcement
Activities, GM-46, iaimed November 21, 1985, provides standard
text which should be Included in EPA press releases which
announce the settlement of an enforcement case in which the
final penalty is appreciably less than the proposed penalty.
The purpose of the text is to preclude any public misper-
ception that EPA is not serious about enforcement when these
appreciable differences occur.
IX. BACKGROUND . .
Congress has directed the Agency in certain instances to
consider specific mitigation factors in assessing a final penalty.
Accordingly, the Agency regularly taXes into account such factors
as the gravity of the violation(s), the violator's compliance
history, and its-degree of culpabilityin addition to weighing
such litigation concerns as the clarity of the regulatory
requirements and the utrength of the government's evidentiary
case--when negotiating a civil penalty amount as part of a
settlement agreement. Guidance for applying mitigating adjust-
ment factors is included in the Agency's published penalty
policies.
HI. POLICY .
Since it is the policy of EPA to use publicity of enforcement
activities as a key element in the Agency's program to promote
compliance and deter violations, public awareness.and accurate
perceptions of the Agency's enforcement activities are extremely
important.
Appreciable differences between civil penalty amounts
proposed at the commencement of enforcement cases and the final
penalty SUBS to be pai.d at the conclusion of such matters may be
erroneously perceived as evidence that EPA is not serious about
enforcing the Nation'! environmental laws. Consequently, such
differences should be explained and accounted for in the Agency's
communications to .the public.
It is the policy of EPA that when press releases are issued
to announce the settlement of enforcement cases in which the
settlement penalty figure is appreciably less than the initially '
proposed penalty amount, such releases should include standard
text (see Section IV, p.2) to ensure that the general public is *
-------
adequately informed of the analysis behind the final
penalty amount., and the reasons justifying the penalty
reduction. The release should also describe any environ-
mentally beneficial performance required under .the
terms of the settlement which goes beyond actions being
taXen simply to come into compliance. ' .
IV. IMPLEMENTATION OF POLICY
When a press release is issued at the settlement of an
enforcement action* any such press release that includes the
announcement of a final penalty assessment which is appreciably
different from the penalty proposed at the outset of the case
should include the following standard texts
"The civil penalty in this action was the
product of negotiation after careful consideration
by the government of the facts constituting the
violation* the gravity of the misconduct, the
strength of the government's case, and established
EPA penalty policies. .
[NOTE: Include the following paragraph only in cases
involving environmentally beneficial
performance.]
"In agreeing to this $ penalty, the
government recognizes the contribution to long-term
environmental protection of [briefly summarize here
the environmentally beneficial performance explained
in detail in the body of the release
£
T<
'_ n-u
-------
VI.I.6. "Policy on Compliance Incentives for Small Businesses", June 3,
1996 (Effective June 10, 1996)
-------
Monday
June 3, 1996
Part IV
Environmental
Protection Agency
«Policy on Compliance Incentives
ill Businesses; Notice
27983
-------
27984
Federal Register Vol. 61. No. ,107 / Monday. June 3. 1996 / Notices
ENVIRONMENTAL PROTECTION
AGENCY .
(FRL-«S12-71
Interim Policy on Compliance
Incentives for Small Businesses
AGENCY: Office of Enforcement and
Compliance Assurance. EPA.
ACTION: Notice of final policy.
SUMMARY: The Office of Enforcement
and Compliance Assurance (EPA) is
issuing this Final Policy on Compliance
Incentives for Small Businesses. This
Final Policy is .intended to promote
environmental compliance among small
businesses by providing them with
incentives to participate in compliance
assistance programs or to conduct
environmental audits and to then
promptly correct violations. The Policy
accomplishes this in two ways: by
setting forth guidelines for the Agency
to reduce or waive penalties for small
businesses that make good faith efforts
to correct violations, and by providing
guidance for States and local
governments to offer these incentives.
EFFECTIVE DATE: This Policy is effective
June 10.1996.
FURTHER INFORMATION CONTACT. David
Hindin. 202-564-2235, Office of
Regulatory Enforcement. Mail Code
2248-A. or Karin Leff, 202-564-7068.
Office of Compliance, Mail Code 2224-
A. United States Environmental
Protection Agency. 401 M Street, S.W..
Washington. D.C. 20460.
SUPPLEMENTARY INFORMATION: Pursuant
to this Policy, EPA will refrain from
initiating an enforcement action seeking
civil penalties, or will mitigate civil,
penalties, whenever a small business
makes a good faith effort to comply with
environmental requirements by
receiving on-site compliance assistance
or promptly disclosing the findings of a
voluntarily conducted environmental '
audit, subject to certain conditions.
These conditions require that the
violation: is the small business's first
violation of the particular requirement:
does not involve criminal conduct: has
not and is not causing a significant
health, safety or environmental threat or
harm: and is remedied within the
corrections period. Moreover. EPA will
defer to State actions that are consistent
with the criteria set forth in this Policy.
This Final Policy supersedes the
Interim version of the Policy issued in
June 1995. See 60 FR 32675, June 23.
1995. The Agency revised the Interim
version based on the comments we
received from the public in response to
the Federal Register notice, as well as
the comments we received from EPA
Regional offices and States. The major
change in this final version of the Policy
is to allow small businesses to obtain
the penalty relief provided by this
Policy not only by using on-site
compliance assistance, but also by
conducting an environmental audit, and
promptly disclosing and correcting the
violations. There are two reasons for
this change. First, this addresses the
major criticism of the Interim Policy
that there are few on-site compliance
assistance programs sponsored or run by
government agencies. Thus, this change
enables more small businesses to use
the Policy. Second, fairness suggests
that if small businesses who seek tax-
payer funded compliance assistance
from the government can get penalty
relief, then businesses who spend their
own money to do an audit, should be
able to get similar relief.
We also have slightly modified the
penalty relief guidelines in section F of
the Policy/Guidelines 1 and 2 remain
the same as they were in the June 1995
Interim version. We have added a new
third guideline which states:
3. If a small business meets all of the
criteria, except It has obtained a significant
economic benefit from the violation^) such
that it may have obtained an economic
advantage over Its competitors. EPA will
waive up to 100% of the gravity component
of the penalty, but may seek the full amount
of any economic benefit associated with the
violations. EPA retains this discretion to
ensure that small businesses that comply
with public health protections are not put at
serious marketplace disadvantage by those
who have not complied. EPA anticipates that
this will occur very Infrequently.
This new guideline is necessary to
ensure that we continue to provide a
national level playing field. Small
businesses that make significant
expenditures to comply with the law
should not be put at an economic
disadvantage by those who did not
comply. Most of the other changes in
the final Policy are clarifications or
editorial in nature. The entire text of the
Policy appears below.
Dated: May 10.1996.
Steven A. Herman.
Assistant Administrator. Office of
Enforcement and Compliance Assurance,
United States Environmental Protection
Agency.
A. Introduction
This document sets forth the U.S.
Environmental Protection Agency's
Policy on Compliance Incentives for
Small Businesses. This Policy is one of
the 25 regulatory reform initiatives
announced by President Clinton on
March 16. 1995. and implements, in
part, the Executive Memorandum on
Regulatory Reform. 60 FR 20621. April
26.1995.
The Executive Memorandum provides
in pertinent part:
To the extent permitted by law. each
agency shall use its discretion to modify tn^
penalties for small businesses' In the
following situations. Agencies shall exercise
their enforcement discretion to waive the
imposition of all or a portion of a penalty
when the violation is corrected within a time
period appropriate to the violation in
question. For those violations that may take
longer to correct than the period set by the
agency, the agency shall use its enforcement
discretion to waive up to 100 percent of the
financial penalties if the amounts waived are
used to bring the entity Into compliance. The
provisions (of this paragraph) shall apply
only where there has been a good faith effort
to comply with applicable regulations and
the violation does not Involve criminal
wrongdoing or significant threat to health.
safety, or the environment.
This Policy also implements section
223 of the Small Business Regulatory
Enforcement Fairness Act of 1996.
signed into law by the President on
March 29,1996.
As set forth in this Policy, EPA will
refrain from initiating an enforcement
action seeking civil penalties, or will
mitigate civil penalties, whenever a
small business makes a good faith effort
to comply with environmental
requirements by receiving compliance
assistance or promptly disclosing the
findings of a voluntarily conducted
environmental audit, subject to certain
conditions. These conditions require
that the violation: is the small business's
first violation of the particular
requirement: does not involve criminal
conduct: has not and is not causing a
significant health, safety or
environmental threat or harm: and is
remedied within the corrections period.
Moreover, EPA will defer to State
actions that are consistent with the
criteria set forth in this Policy.
B. Background
The Clean Air Act (CAA)
Amendments of 1990 require that States
establish Small Business Assistance
Programs (SBAPs) to provide technical
and environmental compliance
assistance to stationary sources. On
August 12, 1994, EPA issued an
enforcement response policy for
stationary sources which provided that
an authorized or delegated state
program may, consistent with federal
requirements, either
(1) Assess no penalties against small
businesses that voluntarily seek compliance
assistance and correct violations revealed as
a result of compliance assistance within a
limited period of time: or
(2) Keep confidential information that
Identifies the names and locations of specTT
-------
reaerai Kegrscer. \,oj-. -o'i.'. So'.
-viulluav.
small businesses with violations revealed
through compliance assistance, where the
SBAP is independent of the state -
enforcement program. .' .
.In a further effort to assist small
businesses to comply with
environmental regulations, and to
achieve health, safety, and
environmental benefits, the Agency is
adopting a broader policy for all media
programs, including water, air. toxics.
and hazardous waste.
C. Purpose
This Policy is intended to promote
environmental compliance among small
businesses by providing incentives for
them to participate in on-stte
compliance assistance programs and to
conduct environmental audits. Further,
the Policy encourages small businesses
to expeditiously remedy all violations
discovered through compliance
assistance and environmental audits.
The Policy accomplishes this in two
ways: by setting forth a settlement
penalty Policy that rewards such
behavior, and by providing guidance for
States and local governments to offer
these incentives.
D. Applicability
This Policy applies to facilities owned
by small businesses as defined here. A
small business is a person, corporation,
partnership, or other entity who
employs 100 or fewer individuals
(across all facilities and operations
owned by the entity).1 This definition is
a simplified version of the CAA § 507
definition of small business. On
balance. EPA determined that a single
definition would make implementation
of this Policy straightforward and would
allow for consistent application of the
Policy in a multimedia context
This Policy is effective June 10,1996
and on that date supersedes the Interim
version of this Policy issued on June 13.
1995 and the September 19,1995 Qs
and As guidance on the Interim version.
This Policy applies to all civil judicial
and administrative enforcement actions
taken under the authority of the
environmental statutes and regulations
that EPA administers, except for the
Public Water System Supervision
Program under the Safe Drinking Water
Act.2 This Policy applies to all such
. ' The number of employees should be considered
as full-time equivalents on an annul basis.
Including contract employees. Full-lime equivalents
mean* 2.000 hours per year of employment. For
example, see 40 CFR S 372.3.
1 This Policy does not apply to the Public Water
System Supervision (PWSS) Program because It
already has an active compliance assistance
program and EPA has a policy to address the
special needs of small communities. See November
actio ns filed after the effective date of
this Policy, and to all pending cases in
.which the government has not reached
agreement in principle with the alleged
violator on the amount of the civil
penalty.-
This Policy sets forth how the Agency
experts to exercise its enforcement
discretion in deciding on an appropriate
enforcement response and determining
an appropriate civil settlement penalty
for violations by small businesses. It
states the Agency's views as to the
proper allocation of enforcement
resources. This Policy is not final
agency action and is intended as
guidance. It does not create any rights,
duti
-------
27986
Federal Register, vol. ol. No. Iu7 Mono ay, june 3. laao .\ouces
environmental threat (eg. violations
involving hazardous or toxic substances
may present such threats), and"
d. The violation does not involve
criminal conduct.
F. Penalty Mitigation Guidelines
EPA will exercise its enforcement
discretion to eliminate or mitigate civil
settlement penalties as follows.
1. EPA will eliminate the civil
settlement penalty in any enforcement
action if a small business satisfies all of
the criteria in section E.
2. If a small business meets all of the
criteria, except it needs a longer
corrections period than provided by
criterion 3 (i.e.. more than 180 days for
non-pollution prevention remedies, or
360 days for pollution prevention
remedies). EPA will waive up to 100%
of the gravity component of the penalty.
but may seek the full amount of any
economic benefit associated with the
violations.4
3. If a small business meets all of the
criteria, except it has obtained a
significant economic benefit from the
violation(s) such that it may have
obtained an economic advantage over its
competitors. EPA will waive up to
100% of the gravity component of the
penalty, but may seek the full amount
of the significant economic benefit
associated with the violations. EPA
retains this discretion to ensure that
small businesses that comply with
public health protections are not put at
a serious marketplace disadvantage by
those who have not complied. EPA
anticipates that this situation will .occur
very infrequently. .
If a small business does not fit within
guidelines 1.2 or 3 immediately above,
this Policy does not provide any special
penalty mitigation. However, if a small
business has otherwise made a good
faith effort to comply, EPA has
discretion; pursuant to its applicable "
enforcement response or penalty
policies, to refrain from filing an
enforcement action seeking civil
penalties or to mitigate its demand for
penalties.' Further, these policies allow
for mitigation of the penalty where there
is a documented inability to pay all or
The "gravity component" of the penalty
inc hides everything except the economic benefit
mount. In determining the appropriate amount of
' the gravity component of the penalty to mitigate,
EPA should consider the nature of the violations.
the duration of the violations, the environmental or
public health impacts of the violations, good faith
efforts by the small business to promptly remedy
the violation, and the facility's overall record of
compliance with environmental requirements.
' For example. In some media specific penalty ,
policies. If good faith efforts are undertaken, the
penalty calculation automatically factors In such
efforts through a potentially smaller economic
benefit or gravity amount. .
a portion of the penalty, thereby placing
emphasis on enabling the small
business to finance compliance. See
Guidance, on Determining a Violator's
Ability to Pay a Civil Penalty of
December 1986. Penalties also may be
mitigated pursuant to the Interim
Revised Supplemental Environmental
Projects Policy of May 1995 (60 F.R.
24856, 5/10/95) and Incentives for Self-
Policing: Discovery, Disclosure,
Correction and Prevention of Violations
Policy of December 1995 (60 FR 66706.
December 22.1996).
G. Compliance Assistance
I. Definitions and Limitations
Compliance assistance4 is
information or assistance provided by
EPA, a State or another government
agency or government supported entity
to help the regulated community
comply with legally mandated
environmental requirements.
Compliance assistance does not include
enforcement inspections or enforcement
actions.7
In its broadest sense, the content of
compliance assistance can vary greatly,
ranging from basic information on the
legal requirements to specialized advice
on what technology may be best suited
to achieve compliance at a particular
facility. Compliance assistance also may
be delivered in a variety of ways,
ranging from general outreach through
the Federal Register or other
publications, to conferences and
computer bulletin boards, to on-site
assistance provided in response to a
specific request for help.
The special penalty mitigation
considerations provided by this Policy
only apply to civil violations which
were identified as part of an oil-site
compliance assistance visit to the
facility. If a small business wishes to
obtain a corrections period after
receiving compliance assistance from a
confidential program, the business must
promptly disclose the violations to the
appropriate regulatory agency and
comply with the other provisions of this
Policy. This Policy is restricted to on-
site compliance assistance because the
other forms of assistance (such as
hotlines) do not expose a small business
.to an increased risk of enforcement and
do not provide the regulatory agency
with a simple way to determine when
the violations were detected and thus
when the violations must be corrected
Compliance assistance b sometimes called
compliance assessments or technical assistance.
' Of course, during an Inspection or enforcement
action, a facility may receive suggestions and
information from the regulatory authority about
how to correct and prevent violations.
In short, small businesses do not need
protection from penalties as an
incentive to use the other types of
compliance assistance.
2. Delivery of On-Site Compliance
Assistance by Government Agency oA
Government Supported Program
Before on-site compliance assistance
is provided under this Policy or a
similar State policy, businesses should
be informed of how the program works
and their obligations to promptly
remedy any violations discovered.
Ideally, before on-site compliance
assistance is provided pursuant to this
Policy or similar State policy, the
agency should provide the facility with
a document (such as this Policy)
explaining how the program works and
the responsibilities of each party. The
document should emphasize the
responsibility of the facility to remedy
all violations discovered within the
corrections period and the types of
violations that are excluded from
penalty mitigation (e.g., violations that
caused serious harm). The facility
should sign a simple form
acknowledging that it understands the
Policy. Documentation explaining the
nature of the compliance assistance visit
and the penalty mitigation guidelines is
essential to ensure that the facility
understands the Policy.
At the end of the compliance
assistance visit, the government ageg
should provide the facility with a li^
all violations observed and report
within 10 days any additional violations
identified resulting from the visit, but
not directly observed, e.g., results from
review and analysis of data or
information gathered during the visit.
Any violations that do not fit within the
penalty mitigation guidelines in the
Policye.g., those that caused serious
harmshould be identified. If the
violations cannot all be corrected within
90 days, the facility should be requested
to submit a schedule for remedying the
violations or a compliance order setting
forth a schedule should be issued by the
agency.
3. Requests for On-Site Compliance
Assistance
EPA, States and other government
agencies do not have the resources to
provide on-site compliance assistance to
all small businesses that request such
assistance. This Policy does not create
any right or entitlement to compliance
assistance. A small business that
requests on-site compliance assistance
will not necessarily receive such
assistance. If a small business requests
on-site compliance assistance (or at
other type of assistance) and the
-------
assistance is not available, the
government agency should provide a
prompt response indicating that such
assistance is not available. The small
business should be referred to other
public and private sources of assistance
that may be available, such as
clearinghouses, hotlines, and extension
services provide by some universities.
In addition, the small business should
be informed that it may obtain the
benefits offered by this Policy by
conducting an environmental audit
pursuant to the provisions of this
Policy.
H. Environmental Audits
For purposes of this Policy, an
environmental audit is defined as "a
systematic, documented, periodic and
objective review by regulated entities of
facility operations and practices related
to meeting environmental
requirements." See EPA's new auditing
policy, entitled Incentives for Self-
Policing. 60 FR 66706. 66711. December
22. 1995.
The violation must have been
discovered as a result of a voluntary
environmental audit, and not through a
legally mandated monitoring or
sampling requirement prescribed by
statute, regulation, permit, judicial or
administrative order, or consent
agreement. For example, the Policy does
not apply to:
(1) emissions violations detected
through a continuous emissions monitor
(or alternative monitor established in a
permit) where any such monitoring is
required:
(2) violations of National Pollutant
Discharge Elimination System (NPDES)
discharge limits detected through
required sampling'or monitoring: or
(3) violations discovered through an
audit required to be performed by the
terms of a consent order or settlement
agreement.
The small business must fully '
disclose a violation within 10 days (or
such shorter period provided by law)
after it has discovered that the violation
has occurred, or may have occurred, in
writ ing to EPA or the appropriate state
or local government agency.
I. Enforcement
To ensure that this Policy enhances
and does not compromise public health
and the environment, the following
conditions apply:
1. Violations detected through
inspections, field citations, reported to
an agency by a member of the public or
a "whistieblower" employee, identified
in notices of citizen suits, or previously
reported to an agency as required by
applicable regulations or. permits,
remain fully enforceable.
2. A business is subject to all
applicable enforcement response
policies (which may include discretion
whether or not to take formal
enforcement action) for all violations
1 that had been detected through
compliance assistance and were not
remedied within the corrections period.
The penalty in such action may include
the time period before and during the
comsction period.
3. A State's or EPA's actions In
providing compliance assistance is not
a legal defense in any enforcement
action. This Policy does not limit EPA
or a state's discretion to use information
on violations revealed through
compliance assistance as evidence in
subsequent enforcement actions.
4. If a field citation is issued to a
small business (e.g., under the
Underground Storage Tank program*), '
the small business may provide
information to the Agency to show that
specific violations cited in the field
citation are being remedied under a
corrections schedule established
pursuant to this Policy or similar State
policy. In such a situation. EPA would
exercise its enforcement discretion not
to seek civil penalties for those
violations.
J. Applicability to States 9
EPA recognizes that states are
partners in enforcement and compliance
assurance. Therefore. EPA will defer to
state actions in delegated or approved
programs that are generally consistent
with the criteria set forth in this Policy.
Whenever a State agency provides a
correction period to a small business
pursuant to this Policy or a similar
policy, the agency should notify the
appropriate EPA Region.
This notification will assure that
federal and state enforcement responses
are properly coordinated.
K. Public Accountability
Within three years of the effective
date of this Policy, EPA will conduct a
study of the effectiveness of this Policy
in promoting compliance among small
businesses. EPA will make the study
available to the public. EPA will make
publicly available the terms of any EPA
agreements reached under this Policy,
including the nature of the violation(s).
the remedy, and the schedule for
returning to compliance.
(FR Doc. 96-13713 Filed 5-31-96; 8:45 am)
BU.MQ COM CMO-40-P
Tire Undarpotind Storage Tank (USD H*M
ctottim program provides tar airntirutally reduced
p""*"** In exchange for the rapid correction of
certain UST violations for first time violators. See
Gufduce for Federal Field Cttmtton Enforcement.
OSWEXDtnctlv* 9610.16. October 1993.
States include] tribes.
-------
VI.I.7. . "Processing Requests for Use of Enforcement Discretion", March
3, 1995.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 031995
CFriCHCr
MEMORANDUM ENFCRCSME^AND
COMPLIANCE ASSUnANC;
SUBJECT: Processing Request^s^for Use of Enforcement Discretion
FROM: Steven A. Eez'm&n^
Assistant Administrator . .
TO: Assistant Administrators
Regional Administrators
General Counsel
Inspector General
In light of the reorganization and consolidation of the
Agency's enforcement and compliance assurance resources
activities at Headquarters, I believe that .it is useful to
recirculate the. attached memorandum regarding "no action"
assurances1 as a reminder of both this policy and the procedure
for handling such requests. The Agency has long adhered to a
policy against giving definitive assurances outside the. context
of a formal enforcement proceeding that the government will not
proceed with an enforcement response-for a specific individual
violation of an environmental protection statue, regulation, cr
gal requirement. This policy, a necessary and critically
mportant element of the wise exercise of .the Agency's
enforcement discretion, and which has been s. consistent feature
of the enforcement program, was formalized in 1984 following
Agency-wide review and comment. Please note that OECA is
reviewing the applicability of this policy to the' CERCLA'
enforcement program, and will issue additional guidance on this
subject. '
A "no action" assurance includes, but is not limited to:
specific or general requests for the Agency to exercise its
e-fcr.cement discretion in a particular manner or in a given set
of circumstances (JLe., that it will or will not take'an
enforcement action)"; the development of policies or.other .
statements purporting to bind the Agency and which relate to cr
would affect the Agency's enforcement of the Federal
environmental laws and requisitions; and other similar requests
1 Courtney M. Price, Assistant Administrator for Enforcement
end Compliance Monitoring, Policy Against,"No Action" Assurances
(Nov. 15, 1934) (copy attached)."
-------
for forbearance or action involving enforcement-related
activities. The procedure established by this Policy requires
that any such written or oral assurances have the advance written
concurrence of the Assistant Administrator for Enforcement and
Compliance Assurance. ' ' .. .
The 1934 reaffirmatica of this policy articulated well the
dangers of providing "no action" assurances. Such assurances
erode the credibility of the enforcement program by creating real
cr perceived inequities in the Agency's treatment of the,
regulated community. Given limited Agency resources, this
credibility is a vital incentive for the regulated community'to
comply with existing requirements. In addition, a commitment not
to enforce a legal requirement may severely hamper later,
necessary enforcement efforts to protect public health and the
environment, regardless of whether the action is against'the
recipient of the assurances or against others who claim to be
similarly situated.
Moreover, these principles are their most compelling in the
context of rulemakings:.' good public policy counsels that blanket
statements of enforcement discretion are not always a
particularly appropriate alternative to the public notice-and-
cocsient rulemaking process. Where the Agency determines that it
is appropriate to alter or modify its approach in specific, well-
defined circumstances, in. ay view we must consider carefully.
whether the objective is best achieved through an open and public
process (especially where tshe underlying requirement was
established by rule under the Administrative Procedures Act), cr
through piecemeal.expressions of-our enforcement discretion.
We have recognized two general situations in which a no
ac-ion assurance may be appropriate: where it is expressly
provided for by an applicable statute, and in extremely unusual
circumstances where an assurance is clearly necessary to serve
the public interest anc which no other mechanism can,address
adequately. -In light of the profound policy implications of
granting no action assurar.ces> the 1984 Policy requires.the
advance concurrence of the Assistant Administrator for this
cffice. Over the years, this approach has resulted in the
reasonably consistent and appropriate exercise of EPA's
enforcement discretion, and in a manner which both preserves the
integrity of the Agency;and meets the legitimate, needs served by
a mitigated enforcement response.
There may be situations where the general prohibition en no
action assurances should not apply under CERCLA (or the
Underground Storage Tanks or RCRA corrective action programs).
For example, at many Superfund sites .there is no violation of
law. " OECA is evaluating the.applicability of no action
assurances under CERCLA and RCRA and will issue additional
guidance on the subject.
-------
Lastly,.an element, of the 1984 Policy which I want to
highlight is that it does.not and should not preclude the Agency
from discussing fully and completely the merits of a particular
action, policy, or other request to exercise the Agency's
enforcement discretion in a particular manner. I welcome a free
and frank' exchange ofideas'on how best to respond to violations,
mindful of the Agency's overarching goals, statutory directives,
and enforcement and compliance priorities. I do, however, want
to ensure that all such requests are handled in a consistent and
coordinated manner. , ,
*
Attachment
cc: OECA Office Directors '
Regional Counsels
Regional Program Directors
-------
§ UNI I cD SlATtS.tiMVlHUiNJMciVlML, rriU I CUT iU!M. AUcMCY
" WASHINGTON. D.C. 20460
J 61984
J Sf
(.HT X.NO
COMPLIANCE MCNIIOftINC
MEMORANDUM '
SUBJECT: Policy Against "No Action" Assurances
Jl~- I ?****-*
FROM: Courtney M. Price
Assistant Administrator for, Enforcement
and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
General Counsel
Insoector General
This memorandum reaffirms EPA policy against giving
definitive assurances (written or oral) outside the context of
a .formal enforcement proceeding that EPA will not proceed with
an enforcement response for a specific individual violation cf
an environmental protection statute, regulation, or other
legal requirement.
"No action" promises ir.ay erode the credibility of EPA's
pnforcement program by creating real or perceived inequities
in- the Agency's treatment of the regulated -community. This
credibility is vital as a continuing, incentive for regulated
parties to comply with-environmental protection requirements.
In addition, any co.TJTiits.ent not to enforce a legal
requirement against a particular regulated party may severely
hamper later enforcement efforts against that'party, who ir.ay
claim good-faith reliance on that assurance, or against other
parties who claim to.be similarly situated.
This policy against definitive no action.promises to
parties outside ths Agency applies in all contexts, including
assurances requested:
0 both prior'to. and after a violation has been committee;
0 on the basis that a State or local government is
responding to the violation;
-------
.° on the basis that revisions to the underlying legal
requirement are being considered;
°- on the basis that the Agency has determined that the
party is r.ot liable or has a valid defense;
0 on the basis that the violation already has beer.
corrected (cr that a party has promised that it will
correct the violation); or
*
0 on the basis, that the violation is not of sufficient
priority to merit Agency action.
The Agency particularly must avoid no action promises
relating either to violations of judicial orders, for which a
court has independent enforcement authority, or to potential
criminal violations, for which prosecutorial discretion rests .
with the United States Attorney General.
As a general rule, exceptions to this policy are warranted
only
0 where expressly provided by applicable statute cr
regulation (e..c.,, certain upset or bypass'situaticr.s )
0 'in extremely unusual cases in which a no action
assurance is clearly neccessary to serve the public
interest (e.g., to allow action to avoid extreme risks
to public health or safety, cr tc obtain important
information 'for research purposes) and which no other
mechanism can address adequately.
Of course, any exceptions which EPA grants must be in an £.-==.
in which EPA has discretion not to act under applicable law.
This policy*ir. no way is intended to constrain the way ir.
which EPA discusses and' coordinates enforcement plans with
state or local enforcement authorities consistent with normal
working relationships. To the extent that a statement of EPA's
enforcement intent is necessary, to help support or conclude an
effective state enforcement effort, .EPA can employ language
such as the following:
"EPA encourages State action to resolve violations of .
the Act. and supports the actions which (State)
is taking to address the violations,at issue. Tc the extent
that the State action does not satisfactorily resolve the
' EPA -.a pursue its own -enforcement action."
-------
TAB VI.J
-------
VI. SPECIJkLIZED ENFORCEMENT TOPICS
J. TOXICS/TOXICITY CONTROL
. £-.. f..'-"^-
-------
VI.J.I
"Policy for Development of Hater Quality-Based Permit
Limitations for Toxic Pollutants," dated February, 1984.
See ZZ.A.7.
-------
,« 7^; -».
-------
VI.J.2
Whole Effluent Toxieity Basic Permitting Principles and
Enforcement Strategy," dated January 25, 1989. Includes
Compliance Monitoring and Enforcement Strategy, dated 1/19/89.
mi
-------
-------
Attachment A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 204«
January 25, 1989
of net of
WATIR
MEMORANDUM
SUBJECT: _Whole Effluent Toxicity Basic Permitting Principles and
(^Qjforcement Strategy
p*Ao4-<£* HT?t-n^vv«^-
FROM: Rebecca W. Banner, Acting Assistant Administrator
Office of Water
TO: Regional'Administrators
Since the issuance of the "Policy for the Development of
Water Quality-based Permit Limitations for Toxic Pollutants" in
March of 1984, the Agency has been moving forward to provide
technical documentation to support the integrated approach of
using both chemical and biological methods to ensure the
protection of water quality. The Technical Support Document for
Water Quality-based "Toxics Control (September/ 1985J and the ~~
Permit Writer's Guide to Water Quality-based Permitting for Toxic
Pollutants (July, 1987) have been instrumental in the Initial
implementation of the Policy. The Policy and supporting
documents, however* did not result in consistent approaches to
permitting and enforcement of -toxicity controls nationally. When
the 1984 Policy was issued, the Agency did not have a great deal
of experience in the use of whole effluent toxicity limitations
and testing to ensure protection of water quality. We now have
more than four years of experience and are ready to effectively
use this experience in order to improve national consistency in
permitting and enforcement.
In order to increase consistency in water quality-based
toxicity permitting, I am issuing the attached Bas- Permitting
Principles for Whole Effluent Toxicity (Attachment .) as a
standard with which water quality-based permits should conform.
A workgroup of Regional and State permitting, enforcement, and
legal representatives developed these minimum acceptable
requirements for toxicity permitting based upon national
experience. These principles are consistent with the toxics
control approach addressed in the proposed Section 304(1)
regulation. Regif-3 should use these principles when reviewing
draft State permit*. If the final Section 304(1) regulations
include changes in this area, we will update these principles as
necessary. Expanded guidance on the use of these principles will
be sent out shortly by James Elder, Director of the Office of
-------
. - 2 -
Water Enforcement and Permits. This expanded guidance will
include sample permit language and permitting/enforcement
scenarios*
Concurrent with this issuance of the Basic Permitting
Principles, I am issuing the Compliance Monitoring and
Enforcement Strategy for Toxics Control (Attachment 2). This
Strategy was developed by a workgroup of Regional and State
enforcement representatives and has undergone an extensive
comment period. The Strategy presents the Agency's position on
the integration of toxicity control into the existing National
Pollutant Discharge Elimination System (NPDES) compliance and
enforcement program. It delineates the responsibilities of the
permitted community and the regulatory authority. The Strategy
describes our current efforts in compliance tracking and quality
assurance of self-monitoring data from the permittees. Zt
defines criteria for review and reporting of toxicity violations
and describes the types of enforcement options available for the
resolution of permit violations.
In order to assist you in the management of whole effluent
toxicity permitting* the items discussed above will join the 1984
Policy as Appendices to the revised Technical Support Documen't
for Water Quality-based Toxics Control. To summarize, these
materials are the Basic Permitting Principles, sample permit
language, the concepts illustrated through the permitting and
enforcement scenarios, and the Enforcement Strategy. I hope
these additions will provide the needed framework to integrate
the control of toxicity into the overall NPDES permitting
program.
I encourage you and your staff to discuss these documents
and the 1984 Policy with your States to further their efforts in
the implementation of EPA'a toxics control initiative.
If you have any questions on the attached materials, please
contact James Elder, Director of the Office of Water Enforcement
and Permits, at (FTS/202) 475-8488.
Attachments
cc: ASWIPCA
Water Management Division Directors
-------
BASIC PERMITTING PRINCIPLES FOR WHOLE EPFLtTPflT TOXICITY -
1. Peraits must be protective of water quality.
a. At a minimum, all major permits and minors of
concern must be evaluated for potentialror known
toxicity (chronic or acute if more limiting).
b. Final whole effluent toxicity limits must be
included in permits where necessary to ensure
that State water Quality standards are met.
These limits must properly account for effluent
variability, available dilution, and species
sensitivity.
2. Permits must be written to avoid ambiguity and ensure
enforceability.
a. whole effluent toxicity limits must appear in part I
of the permit with other effluent limitations.
b. Permits contain generic re-opener clauses which
are sufficient to provide permitting authorities
the means to re-open, modify, or reissue the
permit where necessary. Re-opener clauses covering
effluent toxicity will not be included in the
Special conditions section of the permit where
they imply that limit revision will occur based
on permittee -inability to meet the limit.. Only
schedules or'other special requirements will be
added to the permit.
c. If the permit includes provisions to increase
monitoring frequency subsequent to a violation, it
must be clear that the additional tests only deter-
mine the continued compliance status with the limit;
they are not to verify the original test results.
d. Toxicity testing species and protocols will be
accurately referenced/cited in the permit.
3. Wh«r« not in compliance with a whole effluent toxicity
Halt, permittees must be compelled to come into compliance
with the limit as soon as possible.
a. Compliance dates must be specified.
b. Permits can contain reauirements for corrective
actions, such as Toxicity Reduction Evaluations
(TREs), but corrective actions cannot be delayed
pending EPA/State approval of a plan for the
corrective actions, unless State regulations
require prior approval. Automatic corrective ^
actions subsequent to the effective date of a final
whole-effluent toxicity limit will not be included
in the permit. ' i
-------
-------
ATTACHMENT 1
Explanation of the Basic Permitting Principles
The Basic Permitting Principles present the minimum
acceptable requirements for whole-effluent toxicity permitting.
They begin with a statement of the goal of whole-effluent
toxicity limitations and requirements: the protection of water
quality as established through State numeric and narrative Water
Quality Standards. The first principle builds on the-Technical
Support Document procedures and the draft Section 304(1) rule
requirements for determining potential to violate Water Quality
Standards. It requires the same factors be considered in setting
whole-effluent toxicity based permits limits as are used to
determine potential Water Quality Standards violations. It
defines the universe of permittees that should be evaluated for
potential violation of Water Quality Standards, and therefore
possible whole-effluent limits, as all majors and minors of
concern.
The second permitting principle provides basic guidelines'
for avoiding ambiguities that may surface in permits'. Whole-
effluent toxicity limits should be listed in Part I of the permit
and should be derived and expressed in the same manner as any
other water, quality-based limitations (i.e., Maximum Daily and
Average Monthly limits as required by Section 122.45(d)).
In addition, special re-opener clauses are generally not
necessary, and may mistakenly imply that permits may be re-opened
to revise whole-effluent limits that are violated. This is not
to imply that special re-opener clauses are never appropriate.
They may be appropriate in permits issued to facilities that
currently have no known potential to violate a Water Quality
Standard; in these cases, the permitting authority may wish eo
stress its authority to re-open the permit to add a whole-
effluent limit in the event monitoring detects toxicity.
Several permittees have mistakenly proposed to conduct
additional monitoring subsequent to a violation to "verify" their
results. It is not possible to verify results with a subsequent
test whether a new sample or a split-sample which has been stored
(and therefore contains fewer volatiles) is used. For this
reason, any additional monitoring required in response to a
violation must be clearly identified as establishing continuing
compliance status, not verification of .the original violation.
-7
-------
. - 2 -
The second principle also deals with the specification of
test specie* and protocol. Clearly setting out the requirements
for toxicity testing and analysis is best done by accurately
referencing EPA's most recent test methods and approved
equivalent State methods. In this way, requirements.which have
been published can be required in full, and further advances in
technology and science may be incorporated without lengthy permit
revisions.
The third and final permitting principle reinforces the
responsibility of the permittee to seek timely compliance with
the requirements of its NPDES permit. Once corrective actions
have been identified in a TRE, permittees cannot be allowed to
delay corrective actions necessary to comply with water quality-
based whole^effluent toxicity limitations pending Agency review
and approval of voluminous reports or plans. Any delay on the
part of the permittee or its contractors/agents is the
responsibility of the permittee. .
The final principle was written in recognition of the fact
that a full-blown TRE may not be necessary to return a permittee
to compliance in all cases, particularly subsequent to an initial
TRE. As a permittee gains experience and knowledge of the
operational influences on toxicity, TREs will become less . .
important in the day to-day control of toxicity and will only be
required when necessary on. a -case-specif ic basis.-
-------
ATTACHMENT 2
ta *m Coaalanea Monitoring nd
tor Taviea Control
The Compliance Mon^tof ing and Enforcement Strategy for
control sets forth the Agency's strategy for tracking
conplianc« with and enforcing whole-effluent toxicity monitoring
requirement*, limitations, schedules and reporting requirements.
The Strategy delineates the respective responsibilities of
permittees and permitting authorities to protect water quality
through the control of whole-effluent toxicity. Zt establishes
criteria for the review of compliance data and the quarterly
reporting of violations to Headquarters and the public. The
Strategy discusses the integration of whole-effluent toxieity
control into our existing inspection and quality assurance
efforts. Zt provides guidelines on the enforcement of whole-
effluent toxicity requirements.
The Strategy also addresses the concern many permittees
share as they face the prospect of new requirements in their
permit - the fear of indiscriminate penalty assessment for
violations that they are unable to control. The Strategy
recognizes enforcement discretion as a means of dealing fairly
with permittees that are doing everything feasible to protect
water quality. As indicated in the Strategy, this discretion
deals solely with 'the assessment of civil penalties, however, and
is not an alternative to existing procedures for establishing
relief from State Water Quality Standards. The Strategy focuses
on the responsibility of the Agency and authorized States to
require compliance with Water Quality Standards and thereby
ensure protection of existing water resources.
-------
-------
01/19/89
COMPLIANCE MONITORING AND ENFORCEMENT STRATEGY
FOR TOXICS CONTROL
I. Background
Issuance of NPDES permits now emphasizes the control of toxic
pollutants* by integrating technology and water quality-based
permit limitations, best management practices for toxic discharges,
sludge requirements, and revisions to the pretreatment implementa-
tion requirements. These requirements affect all major permittees
and those minor permittees whose discharges may contribute to
impairment of the designated use for the receiving stream. The
goal of permitting is to eliminate toxicity in receiving waters
that results from industrial and municipal discharges.
Major industrial and municipal permits will routinely contain
water quality-based limits for toxic pollutants and in many cases
whole effluent toxicity derived from numerical and narrative
water quality standards. The quality standards to establish NPOBt i
permit limits are discussed in the "Policy for the Development of
Water Quality-based Permit Limits for Toxic Pollutants," 49FR 9.016,
March 9, 1984. The Technical Support Document for Water Quality-
based Toxics Control, EPA $440/44-85032, September, 1985 and the
Permit.Writer's Guide to Water Quality-based Permitting for Toxic
Pollutants, Office of Water, May, 1987, provide guidance for inter-
preting numerical and narrative standards and developing permit
limits.
The Water Quality Act (WQA) of 1987 (PL 100-4, February 4,
1987) further directs EPA and the States to identify waters that
require controlsfor toxic pollutants and develop individual
control strategies including permit limits to achieve control of
toxics. The WQA established deadlines, for individual control
strategies (February 4, 1989) and for compliance with the toxic
control permit requirements (February 4, 1992). This Strategy
will support the additional compliance monitoring, tracking, evalu-
ation, and enforcement of the whole effluent toxicity controls
that will be needed to meet the requirements of the WQA and EPA's
policy for water quality-based permitting.
It is the goal of the Strategy to assure compliance with
permit toxicity limits and conditions through compliance inspec-
tions, compliance reviews, and enforcement. Water quality-based
limits may include both chemical specific and whole effluent toxi-
city limits. Previous- enforcement guidance (e-.g.. Enforcement
Management System for the National Pollutant Discharge Elimination
System, September, 1986; National Guidance for Oversight of NPDES
Programs, May, 1987; Guidance for Preparation of Quarterly and
Semi-Annual Noncompliance Reports, March, 1986) has dealt with
-------
- 2 -
chemical-«P«cific water quality-based Haiti. Thi§ Strategy will
focus on whole effluent toxicity limits. Such toxicity limits may
appear in permits, administrative orders, or judicial orders.
II. Strategy Principles
This strategy is based on four principles:
1) Permittees are responsible for attaining, monitoring,
and maintaining permit compliance and for the quality
of their data*
2) Regulators will evaluate self-monitoring data quality
to ensure program integrity.
3) Regulators will assess compliance through inspections,
audits,* discharger data reviews, and other independent
monitoring or review activities.
4) Regulators will enforce effluent limits and compliance
schedules to eliminate toxicity.
III. Primary Implementation Activities
In order to implement this Strategy fully, the following
activities are being initiated:
A. Immediate development
1. The NPDES Compliance Inspection Manual was
revised in May 1988 to include procedures for
performing chronic toxicity tests and evaluating
toxicity reduction evaluations. An inspector
training module was also developed in August
1988 to support inspections for whole effluent
toxicity.
2. The Permit Compliance System (the national SPDES
data base) was modified to allow inclusion
of toxicity limitations and compliance schedules
associated with toxicity reduction evaluations.
The PCS Steering Committee will review standard
data elements and determine if further modifi-
cations are necessary.
3. Compliance review factors (e.g., Technical
Review Criteria and significant noncompliance
definitions) are being proposed to evaluate
violations and appropriate response.
4. A Quality Assurance Fact Sheet has been developed
(Attached) to review the quality of toxicity test
results submitted by permittees.
-------
- 3 -
5. The Enforcement Response Quid* in the Enforcement
Management System will be revised to cover the use
of administrative penalties and other responses to
violations of tozicity controls in permits. At
least four types of permit conditions are being
examined: (1) whole-effluent toxicity monitoring
(sampling and analysis), (2) whole effluent
toxicity-based permit limits, (3) schedules to
conduct a TRE and achieve compliance with water
quality-based limits, and (4) reporting requirments.
B. Begin development in Spring 1989
With the assistance of the Office of Enforcement and
Compliance Monitoring (OECM), special remedies and model forms
will be developed to address violations of toxicity permit
limits (i.e., model consent decrees, model complaints, revised
penalty policy, model litigation reports, etc.)
IV. Scope and Implementation of Strategy
A. Compliance Tracking and Review
1. Compliance Tracking '
«
The Permits Compliance System (PCS) will be
used as the primary system for tracking limits and
monitoring compliance with the conditions in NPOES
permits. Many new codes for toxicity testing have
already been entered into PCS. During FY 89, head-
quarters will provide additional guidance to Regions
and States on PCS coding to update existing documenta-
tion. The Water Enforcement Data Base (WENDB)
requirements as described in the PCS Policy Statement
already require States and Regions to begin
incorporating toxicity limits and monitoring information
into PCS.
In addition to guidance on the use of PCS,
Headquarters has prepared guidance in the form
of Basic Permitting Principles for Regions and
States that will provide greater uniformity
nationally on approaches to toxicity permitting.
One of the major problems in the tracking and
enforcement of toxicity limits is that they differ
greatly from State-to-State and Region-to-Region.
The Permits Division and Enforcement Division in
cooperation with the PCS Steering Committee will
establish standard codes for permit limits and
procedures for reporting toxicity results based on
this guidance.
-------
- 4 -
Whole effluent toxicity self-monitoring data
should undergo an appropriate quality, review. (See
attached checklist for suggested toxicity review
factors.) All violations of permit limits for
toxics control should be reviewed by a professional
qualified tb assess the noncompliarica. Regions and
.States should designate appropriate staff.
2. Compliance Review
Any violation of a whole effluent toxicity
liait is of concern to the regulatory agency and
should receive an immediate professional review.
In teras of the Enforcement Management System (EMS)/
any whole effluent violation will have a violation
review action criterion (VRAC) of 1.0. However, the
appropriate initial enforceaent response may be to
require additional monitoring and then rapidly
escalate the response to formal enforceaent if the
noncoapliance persists. Where whole effluent
toxicity is based on a pass-fail permit limitation,
any failure should be iaaediately targeted for
compliance inspection. In soae instances, assessaent
of the coapliance status will be required through
issuance of Section 308 letters and 309(a) orders to
require further toxicity testing.
Monitoring data which is submitted to fulfill
a toxicity monitoring requirement in permits that do
not contain an independently enforceable whole-effluent
toxicity limitation should also receive immediate
professional review. ,
The burden for testing and biomonitoring is on
the permittee; however, in some instances, Regions and
States may choose to respond to violations through
sampling or performance audit inspections. When an
inspection conducted in response to a violation identi-
fies noncompliance, the Region or State should
initiate a formal enforcement action with a compliance
schedule, unless remedial action is already required
in the permit.
B. Inspections
EPA/State compliance inspections-of all major permittees
on an annual.basis will be maintained. For .all facilities
with water quality-based toxic limits, such inspections should
include an appropriate toxic component (numerical and/or
whole effluent review). Overall the NPDES inspection and
data quality activities for toxics control should receive
greater emphasis than in the present inspection strategy.
-------
- 5 -
1. Regional/State Capability
The EPA's -Policy for the Development of Water
Quality-baaed Permit Limits for Toxic Pollutants*
(March 9, 1984 Federal Register) states that EPA
Regional Administrators will assure-that each
Region has the full capability to conduct water
quality assessments using both biological and chemi-
cal methods and provide technical assistance to the
States. Such capability should also be maintained
for compliance bioaonitoring inspections- and toxics
sampling inspections. This capability should include
both inspection and laboratory capability.
2. Use of Monsampling Inspections
Nonaampling inspections as either compliance
evaluations (CEIs) or performance audits (PAIs) can
be used to assess permittee self-monitoring data
involving whole effluent toxicity limits, TREs, and
for prioritization of sampling inspections.* As
resources permit, PAIs should be used to verify
biomonitoring capabilities of permittees and
contractors that provide toxicity testing self-
monitoring data.
3. Quality Assurance
All States are encouraged to develop the
capability for acute and chronic toxicity tests
with at least one fish and one invertebrate species
for freshwater and saltwater if appropriate. MPDES
States should develop the full capability to assess
compliance with the permit conditions they establish.
EPA and NPDES States will assess permittee
data quality and require that permittees develop
quality assurance plans. Quality assurance plans
must be available for examination. The plan should
include methods and procedures for toxicity testing
and chemical analysis; collection, culture, mainte-
nance, and disease control procedures for test
organisms; and quality assurance practices. The
Due to resource considerations, it is expected that sampling
inspections will be limited to Regional/State priorities in
enforcement and permitting. Routine use of CEIs and PAIs should
provide the required coverage.
-------
- 6 -
permittee should also have available quality control
chart*, calibration records, raw test data, and
culture records.
In conjunction with the QA plans, EPA will
evaluate permittee laboratory performance on EPA
and/or State approved methods. This evaluation ia
an essential part of the laboratory audit process.
EPA will rely on inspections and other quality
assurance measures to maintain data quality. However,
States may prefer to implement a laboratory certifi-
cation program consistent with their regulatory
authorities. Predetermined limits of data accepta-
bility will need to be established for each test
condition (acute/chronic), species-by-species.
C. TOzicity "Reduction Evaluations (TREs)
TREs are systematic investigations required of permittees
which combine whole effluent and/or chemical specific testing
for toxicity identification and characterization in a planned
sequence to expeditiously locate the source(s) of toxicity and
evaluate the effectiveness of pollution control actions .and/or
inplant modifications toward attaining compliance with a -permit
limit. The requirement for a'TRE is usually based on a
finding of whole effluent toxicity as defined in the permit.
A plan with an implementation schedule is then developed to
achieve compliance. Investigative approaches include
causative agent identification and toxicity treatability.
1. Requiring TRE Plans
TRE's can be triggered: 1) whenever there is a
violation of a toxieity limit that prompts enforcement
action or 2) from a permit condition that calls for a
toxicity elimination plan within a specified time
whenever toxicity is found. The enforcement action
such as a 309(a) administrative order or State
equivalent, or judicial action then directs the
permittee to take prescribed steps according to a
compliance schedule to eliminate the toxicity. This
schedule should be incorporated into the permit, an
administrative order, or judicial order and compliance
with the schedule should be tracked through PCS.
2. Compliance Determination Fallowup
Compliance status must be assessed following the
accomplishment of a TRE plan using the most effi-
cient and effective methods available. These methods
include site visits, self-monitoring, and inspections.-
-------
- 7 -
Careful attention to quality assurance will assist in
minimizing the regulatory burden. The method of
compliance assessment should be determined on a
case-by-case basis.
0. Enforcing Toxic Control Permit Conditions
'Enforcement of toxic controls in permits depends upon a
clear requirement and the process to resolve the noncoapli-
ance. In addition to directly enforceable whole effluent
limits (acute and chronic, including absolute pass-fail
limits), permits have contained several other types of
toxic control conditions! 1) "free from" provisions,
2) schedules to initiate corrective actions (such as TREs)
when toxicity is present, and/or 3) schedules to achieve
compliance where a limit is not currently attained.
Additional requirements or schedules may be developed
through 308 letters, but the specific milestones should be
incorporated into the permit, administrative order or
State equivalent mechanism, or judicial order to ensure
they are enforceable.
1. The Quarterly Noncompliance Report (QNCR)
Violations of permit conditions are tracked and
reported as follows:
a. Effluent.Violations
Each exceedance of a directly enforceable whole
effluent toxicity limit is of concern to the
regulatory agency and, therefore, qualifies
as meeting the VRAC requiring professional
review (see section ZV.A.2.).
These violations must be reported on the QNCR
if the violation is determined through profes-
sional review to have the potential to have
caused a water quality impact.
All QNCR-reportable permit effluent violations
are considered significant noncompliance (SNC).
b. Schedule Violations
Compliance schedules to meet new toxic controls
should be expeditious. Milestones should be
established to evaluate progress routinely and
minimize delays. These milestones should be
tracked and any slippage of 90 days or more .
must be reported on the QNCR.
-------
- 8 -
The following milestones are considered SNC when
90- day* or more overdues submit plan/schedule
to conduct THE* initiate TR£, submit test results,
submit implementation plan/schedule (if appro-
priate), start construction, end construction,
and attain compliance with permit.
c. Reporting/Other Violations
Violation of other toxic control requirements
(including reports) will be reported using
criteria that are applied to comparable NPDES
permit conditions. For example, failure to
submit a report within 30 days after the due
date or submittal of an inaccurate or inadequate
report will be reportable noncompliance (on
the QNCR).
Only failure to Submit toxicity limit self-
monitoring reports or final TRE progress reports
indicating compliance will be SMC when 30 days
or more overdue.
Resolution (bringing into compliance) of all three
types of permit violations (effluent, schedule,
and reporting/other) will be through timely and
appropriate enforcement that is consistent with
EPA Oversight Guidance. Administering agencies
are expected to bring violators back into.compliance
or take formal enforcement action against facilities
that appear on the QMCR and are in SMC; otherwise,
after two or more quarters the facility must be
listed on the Exceptions List.
2. Approaches to Enforcement of Effluent Limitations
Zn the case of noncompliance with whole effluent
toxicity limitations, any formal enforcement action
will be tailored to the specific violation and remedial
actions required. Zn some instances, a Toxicity
Reduction Evaluation (TRE) may be appropriate. However,
where directly enforceable toxicity-based limits are
used, the TRE is not an acceptable enforcement response
to toxicity noncompTiance if it requires only additional
monitoring without a requirement to determine appropriate
remedial actions and ultimately compliance with the
limit.
Zf the Regions or States use administrative
enforcement for violations of toxic requirements,
such actions should require compliance by a date
certain, according to a set schedule, and an
-------
- 9 -
administrative penalty should ba considered.1
Failure to comply with an Administrative Order
schedule within 90 days indicates a schedule delay
that may affect the final compliance date and a
judicial referral is the normal response. In instances
where toxicity has been measured in areas with potential
impacts on human health (e.g., public water supplies,
fish/shellfish areas, etc.), regions and states
should presume in favor of judicial action and seek
immediate injunctive relief (such as temporary
restraining order or preliminary injunction).
In a few highly unusual cases where the permit-
tee has implemented an exhaustive TRE plan2, applied
appropriate influent and effluent controls^, maintained
continued compliance with all other effluent limits,
compliance schedules, monitoring, and other permit
requirements, but is still unable to attain or maintain
compliance with the toxicity-based limits, special
technical evaluation may be warranted and civil penalty
relief granted. Solutions in these cases could be
pursued jointly with expertise from EPA and/or the
States as well as the permittee.
Some permittees may be required to perform a
second TRE subsequent to implementation of remedial
action. An example of the appropriate use of a
subsequent TRE is for the correction of new violations
of whole effluent limitations following a period of
1Federal Administrative penalty orders must be linked to violations
of underlying permit requirements and schedules.
'2see Methods for Aquatic Toxicity Identification Evaluations,
Phase*"!, Toxicity Characterization Procedures, EPA-600/3-88/035,
Table 1.An exhaustive TRE plan covers three areas: causative
agent identification/toxicity treatability; influent/effluent
control; and attainment of continued compliance. A listing of
EPA protocol* for TREs can be found in Section V (pages 11 and
12).
3For industrial permittees, the facility must be well-operated
to achieve all water quality-based, chemical specific, or BAT
limits, exhibit proper 0 & M and effective BMPs, and control
toxics through appropriate chemical substitucion and treatment. .
For POTW permittees, the facility must be well-operated to
achieve all water quality-based, chemical specific, or secondary
limits as appropriate, adequately implement its approved pretreat-
ment program, develop local limits to control toxicity, and u
implement additional treatment.
-------
- 10 -
sustained compliance (6 month* or greater in duration)
indicating a different problem from that addressed
in the initial TR£.
3. Enforcement of Compliance Schedule and Reporting
Requirements
In a number of instances, the primary
requirements in the permits to address tozicity
will be schedules for adoption and implementation
of bioaonitoring plans* or submission of reports
verifying TREs or other similar reporting require-
ments. Regions and States should consider.any
failure (1) to conduct self-monitoring^according
to EPA and State requirements, (2) to meet TRE
schedules within 90 days, or (3) to submit reports
within "30 days of the specified deadline as SNC.
Such violations should receive equivalent enforce-
ment follow-up as outlined above.
4. Use of Administrative Orders With Penalties
In addition to the formal enforcement actions
to require remedial actions, Regions and States
should presume that penalty AO's or State equiva-
lents can be issued for underlying permit violations
in which a formal enforcement action is appropriate.
Headquarters will also provide Regions and States
with guidance and examples as to how the current
CWA penalty policy can be adjusted.
5. Enforcement Models and Special Remedies
OWE? and OECM will develop standard pleadings
and language for remedial activities and compliance
milestones to assist Regions and States in addres-
sing violations of toxicity or water quality-based
permit limits. Products will include model litiga-
tion reports, model complaints and consent decrees,
and revised penalty policy or penalty algorithm
and should be completed in early FY 1989.
-------
- 11 -
V. Summary of Principal Activities and Produrta
A. Compliance Tracking and Review guidance
1* PCS Coding Guidance - May, 1987; revision
2nd Quarter 1989
2. Review Criteria for Self-monitoring Data (draft
attached)
B. Inspections and Quality Assurance
1. Revised NPDES Compliance Inspection Manual -
May 1988. r ""
2. Quality Assurance Guidance - 3rd Quarter FY 1989.
3. Biomonitoring Inspection Training Module -
August 1988.
4. Additions of a reference toxicant to OMRQA program
(to be determined)
C. Toxics Enforcement
1. Administrative and Civil Penalty Guidance - 4th
Quarter FY 1989
2. Model Pleadings and Complaints - 2nd Quarter 1989
3. EMS Revision - 2nd Quarter FY 1989
D. Permitting Consistency
1. Basic Permitting Principles -2nd Quarter FY 1989
E. Toxicity Reduction Evaluations
1. Generalized Methology for Conducting Industrial
agy tor conducting
Evaluations - 2nd
Toxicity Reduction Evaluations - 2nd Quarter
FY 1989
2. Toxicity Reduction Evaluation Protocol for
Municipal Wastewater Treatment Plants - 2nd Quarter
FY 1989
-------
- 12 -.
Method* for Aquatic Toxieitv Indentifieation
Evaluation?
a. Phaae I. Toxieitv Characterization
procedures, KPA-6QQ/3-Qa7rf»A-
september 1988
b. Phaae II. Toxieitv Identification
£roce3ure£rtpA=5S373=S
zna guarter 1989
c. Phase III. Tozieitv Confirmation
^A-bOOj3.8fl/dJb Snd'ouar'te'r
FY 1989
-------
Attachment
QUALITY CONTROL FACT SHEET FOR SELF-BIOMONITORING
ACUTE/CHRONIC TOXICITY TEST DATA ~
Permit No.
Facility Name
Facility Location
Laboratory/Invest igator
Permit Requirements:
Sampling Location ___
Limit
Type of Sample^
Test Duration
Type of Test -_
Test Resultst
LCSO/ECSO/NOEL
Test Organism Age
951 Confidence Interval
Quality Control Summary;
Date of Sample:
Dates of Test:
Control Mortality:
Control Mean Dry Weight
Temperature maintained within +2*C of test temperature? Yes No_
Dissolved oxygen levels always greater than 40% saturation?
Yes No_
Loading factor for all exposure chambers less than or equal to
maximum allowed for the test type and temperature? Yes__ No
Do the test results indicate a direct relationship between effluent
concentration and response of the test organism (i.e., more deaths
occur at the highest effluent concentrations)? Yes No
2-0-
-------
-------
VI.J.3
# "Quality Assurance Guidance for Compliance Monitoring in Effluent
Biological Toxicity Testing", dated March 7, 1990.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 7 1990
OFFICE OF WATER
MEMORANDUM
SUBJECT: Quality Assurance Guidance for Compliance Monitoring In
Effluent Biological Toxiclty Test;
FROM: David N. Lyons, P.E., Chief
Enforcement Support Branch (
TO: Compliance Branch Chiefs, Water Management Division
Surveillance Branch Chiefs, Environmental Services Div.
Regions 1-10
I am attaching the "QA Guidance for Compliance Monitoring in
Effluent Biological Toxicity Testing" for your distribution.
This document will supplement the QA section (Chapter 8) in
the NPDES Compliance Inspection Manual. The objective of this
guidance is to help NPDES inspectors, trained or untrained in the
principles of biological testing, to understand the parameters
that influence the acceptability of test data, and to recognize
data that are invalid for verifying compliance.
Earlier drafts were reviewed by a workgroup consisting of
Headquarters, Regional and State staff. Their comments were
incorporated in this version. If you have any questions, please
feel free to contact my staff, Samuel To (FTS-475-8322) and
Theodore Coopwood (FTS-475-8327).
Attachment
Printed on rtecycta? Ptptf
-------
-------
QUALITY ASSURANCE GUIDANCE
FOR
COMPLIANCE MONITORING
IN EFFLUENT BIOLOGICAL TOXICITY TESTING
February 1990
Office of Water Enforcement and Permits
U.S. Environmental Protection Agency
-------
-------
TABLE OF CONTENTS
Page
Introduction * i
General Quality Assurance Concern 3
Objectives .....* 3
Quality Assurance Program .. 3
Review of Quality Assurance Procedures 5
Sample -Collection and Test Procedures . 7
Effluent and Receiving Water Sampling 7
Facilities, Equipment, and Test Chambers 8
Analytical Methods 9
Calibration and Standardization of Equipment and
Reagents 9
Dilution Water 9
Record Keeping 10
Test Organisms 12
Organisms Used .... 12
Quality and Source of Test Organisms 12
Food Quality 12
Reference Toxicants 13
Control Charts 14
Assessing Data Quality 15
Test Acceptability 15
Precision 16
Accuracy 17
Completeness 18
Representativeness 18
Comparability .. 19
Replication and Test Sensitivity 19
Reporting Results 20
References 21
-------
-------
INTRODUCTION
The purpose of this document is to provide quality assurance
guidance for review and evaluation of effluent'toxicity testing.
It will serve as an addendum to the NPDES Compliance Inspection
Manual. Its objective is to help those both trained and
untrained in the principles of biological testing to understand
the parameters that influence the acceptability of test data, and
recognize data that are invalid for verifying compliance.
The primary goal of quality assurance is to ensure that all
environmentally related measurements submitted to the U.S.
Environmental Protection Agency (EPA) in permittee self
monitoring reports represent data of known quality. The quality
of data is known when all components associated with its
derivation are thoroughly documented, and the documentation is
verifiable and defensible. It is EPA's policy to ensure that
data representing environmentally related measurements are of
known quality.3
Quality Assurance is especially important in the NPDES program
which obtains the majority of its information on permittee
compliance from test data submitted by the permittees.
Compliance with NPDES permit effluent limitations requires that
accurate test results be within the allowable quantity or
concentration prescribed in the permit.
* Quality Assurance is the program that assures the
reliability of data. It includes policies, objectives,
principles, programs, and procedures to produce data of known and
accepted quality. It may include quality control, which is the
routine application of detailed procedures for obtaining
prescribed standards of performance in the monitoring and
measurement process.
-------
This guidance focuses on the quality assurance considerations
that affect the acceptability of whole-effluent toxicity test .
data submitted by permittees. Whole-effluent toxicity tests
involve the exposure of selected test organisms to prescribed
concentrations of effluent under controlled test conditions for .a
specified time to determine effluent toxicity. Toxicity may be
exhibited by changes in organism mortality, growth, reproduction
or other physical response when compared to a control. As with
specific chemical analyses, whole-effluent toxicity tests must
conform to a specified set of physical conditions to be
considered valid. Only valid tests can confirm compliance with
an effluent limitation.
-------
GENERAL QUALITY ASSURANCE CONCERNS
Objectives
The objectives of a toxicity testing quality assurance program
are to ensure that generated data reflect accurately the
conditions that the data represent, that commonly accepted or
standard practices have been followed in all facets of data
generation, and that each step of data generation from sample
collection to reported results has an appropriate written
verifiable log or record.
Quality Assurance Program
The elements of a good quality assurance program are designed to
ensure that the above objectives are fulfilled. Such elements
should be contained in a written quality assurance plan for each
facility conducting toxicity testing. The plan for each facility
should contain:4*5
a) Facility quality assurance policy
b) Standard operating procedures
c) System and performance audits
d) Facilities and equipment
e) Qualifications and training of personnel
f) Quality assurance/quality control responsibilities
g) Administrative sample handling procedures
h) Sample custody and chain-of-custody procedures
i) Applicable instrument calibration procedures,
frequency, and records
j) Laboratory practices to ensure that reagents and
standard solutions have not violated respective shelf
holding time
The aspects of the quality assurance plan dealing with effluent
toxicity tests should discuss:
3
-------
a) Effluent sampling and handling
b) Source, condition and handling of test organisms
c) Condition of equipment
d) Test conditions
e) Instrument calibration
f) Replication
g) Use of reference toxicants
h). Record keeping
i) Data evaluation
j) Data reporting
«_
The plan should specify where verifiable logs or records should
be maintained and retained to identify the responsible person for
each aspect of the data generating procedure, and the practices
that will ensure that possible tampering with sample quality has
not occurred.
Test organisms are the analytical instruments in a toxicity test.
They respond to the elements of their environment in accordance
with their individual sensitivity. Methods for toxicity testing
have been accepted and published by EPA.6'7"8 Quality assurance
practices require that documentation shows that these methods
have been followed or that any deviations are fully explained and
documented.
Sampling and sample handling requires that sample holding time is
not violated. Test organisms should be positively identified to
species and be disease-free, of known age, and of good health;
their source should be recorded and reference toxicant testing
documented. Laboratory temperature control equipment must be
adequate to maintain recommended test water temperatures. Test
materials fabrication must not influence test solution or control
water quality. Analytical methods must include quality control
practices outlined in EPA methods manuals or as specified in
-------
official EPA methods.9'10 Instruments used for routine
measurements of chemical and physical parameters must be
calibrated and standardized according to accepted procedures.
Dilution water.should be appropriate to the objectives of the
study.6'7'8 Water temperature, dissolved oxygen, salinity or
water hardness, and pH should be maintained within the limits
specified for each test. Replication of test procedures are
specified in the test instructions. Reference toxicants should
be used to verify efficacy of laboratory procedures and health of
organisms. Proper, accurate, complete record keeping and data
reporting are essential. All of these parameters are specified
in the methods manuals.
Review of Quality Assurance Procedures
One method used to evaluate permittee adherence to good quality
assurance and test protocols is through an inspection or audit.
A quality assurance inspection or audit would examine documents,
records, and procedures, including:
a) Quality assurance program plan
b) Quality assurance audit reports and inspection records
c) Laboratory certifications
d) Equipment calibration records
e) Collection and management of samples to laboratory
f) Chain-of-custody and responsible-person procedures
g) Sample management, storage, and security within
laboratory
h) Record keeping
i) Laboratory facility and equipment condition
j) Training and experience of personnel
k) Source, maintenance, and apparent health of test
organisms
1) Source and results of reference toxicants (.i.e.,
reference toxicant test results and control survival)
m) Shelf life and labeling of reagents and standard test
solutions
-------
n) Methods for preparation of laboratory standards and
synthetic or artificial waters including the source of
any sea salts used.
o) Deviations from standard procedures
p) Test reports that were rejected for unacceptable QA/QC
by a regulatory agency
g) Adequacy of space and equipment for work load
r) Methods for laboratory waste disposal
An inspection or audit should determine compliance with minimum
acceptable criteria for collecting samples, conducting the tests,
and analyzing test results. In addition to examining the
equipment and facilities, the acquisition, culture, maintenance,
and acclimation of test organisms should be investigated.
Detailed considerations of the primary aspects of whole-effluent
toxicity testing follow.
-------
SAMPLE COLLECTION AND TEST PROCEDURES
Effluent and Receiving Water Sampling
The effluent sampling point should be the same as specified in
the National Pollutant Discharge Elimination System permit. The
collector of a sample should be recorded. It is essential that
the sample be characteristic of the wastevater discharge. When
chlorination is practiced, regulatory authorities measure the
toxicity of the effluent at different steps in the process; i.e.
prior to chlorination, or after chlorination, or after
dechlorination with sodium thiosulfate. Receiving water samples
are collected upstream from the outfall being tested or from
uncontaminated surface water with similar natural qualities. It
is common practice to collect grab samples for receiving water
toxicity studies, and receiving water may be specified as a
source of dilution water in effluent toxicity tests. These grab
sample collections should be conducted following the
specifications for each test method.6<7<8
Aeration during collection and transfer of effluents should be
minimized to reduce the loss of volatile chemicals. Sample
holding time, from time of collection to initiation of the test,
should not exceed 36 hours. Samples collected for off-site
toxicity testing are to be chilled to 4°C when collected, shipped
in ice to the laboratory, and there transferred to a 4°C
refrigerator until used.
The above precautions are taken to maintain the potential
toxicity characteristics and integrity of the wastewater and to
ensure that such characteristics are not changed following sample
collection and prior to toxicity testing. Precautions should be
taken to ensure that any materials used in sample collection or
throughout the testing process will not affect the integrity of
-------
the sample being tested. Any alterations to effluent or dilution
water samples should be well documented even if that adjustment
is standard, including the use of sea salts or hyper saline brine
(HSB) to adjust the salinity of freshwater effluents.
Facilities. Eouipment. and Tes£
Specific requirements have been developed for facilities and
equipment used in toxicity testing, 6>7>e and should be referred to
during 'the conduct of each method. To summarize:
Laboratory temperature control equipment must maintain
recommended test water temperatures.
All materials that come in contact with the effluent
must be such that there is no leaching or reaction that
potentially would alter the integrity of the wastewater
being tested. Tempered glass and perfluorocarbon
plastics (TeflonR) should be used whenever possible to
minimize sorption and leaching of toxic substances.
These materials may be reused following decontamination.
Plastics such as polyethylene, polypropylene, polyvinyl
chloride, and TYGON* may be used as test chambers or to
store effluents, but caution should be exercised in
their use because they might introduce toxicants when
new, or carry over toxicants from one test to another if
reused.
The use of large glass carboys is discouraged for safety
reasons. Glass or disposable polystyrene containers are
used for test chambers.
New plastic products of a type not previously used
should be tested for toxicity before initial use by
8
-------
exposing the test organisms in the test system where
the material is used.
Silicone adhesive used to construct glass test chambers
absorbs some organochlorine and orgahophosphorus
pesticides. As little of the adhesive as possible
should be in contact with the water and any beads of
adhesive inside the containers should be removed.
Cleaning of equipment should be rigorous and thorough.
Analytical Methods
Routine chemical and physical analyses must include established
quality control practices outlined in EPA methods manuals or in
40 CFR 136 particular approved methods.4*5
Calibration and Standardization of Equipment and Reagents
Instruments used for routine measurements of chemical and
physical parameters such as pH, dissolved oxygen, temperature,
conductivity, alkalinity, and salinity/hardness must be
calibrated and standardized according to instrument
manufacturers' procedures. Wet chemical methods used to measure
alkalinity and hardness must be standardized according to
procedures specific in the EPA method. Logs should be maintained
for the calibration of instruments.
Dilution Water
Dilution water should be the same as specified in the permit. If
required, dilution water may be synthetic water, ground water,
seawater, artificial seawater or hypersaline brine (HSB) made
from a non-contaminated source of natural seawater (above 30 0/00
salinity) appropriate to the objectives of the study and
9
-------
logistical constraints, and should follow recommendations of each(
individual method. Holding time and holding temperature for
dilution water are specified as similar to that for effluent
samples. Dilution water is considered acceptable if test
organisms have adequate survival (during acclimation and
testing), growth, and reproduction in the test chambers during a
test; and give the predicted results when tested using a
reference toxicant.
Water temperature within the test chambers must be monitored
continually and maintained within the limits specified for each
test. Dissolved oxygen concentrations must also be maintained
within the limits specified, and pH should be checked and
recorded at the beginning of the test and at least daily
throughout the test. In regard to dissolved oxygen, if it is
necessary to aerate during the test, and the protocol allows
aeration, all concentrations and controls must be aerated and the
fact noted on the test report. ,
/ "
Record Keeping
Records should detail all information about a sample and test
organisms, including:
a) Collection: date; time; location; pre-, post-, or
dechlorinated; weather conditions, methods, and
collector
b) Transportation: method, chain of custody, packing to
ensure correct temperature maintenance, and security
c) Laboratory: storage, analysis, and security
d) Testing: elapsed time from sample collection,
treatment, and type of test
e) Test organism: species, source, age, health, and
feeding
f) Records of diseased or discarded organisms
g) Test results including replicates and controls
h) All calculations that impact test results and data
interpretation
10
-7 -7
-------
i) Any observations of a non-routine occurrence that may
be important in interpretation of results
j) Equipment and instrument calibrations
k) Any deviation from the protocol.
Records should be kept in bound notebooks. Observations should
be recorded as they occur to prevent the loss of information.
Notebook data and observations should be initialed and dated by
the observer.
11
-------
TEST ORGANISMS
Organisms Used
The standard freshwater test organisms used in chronic toxicity
tests are the fathead minnow, Pimephales oromelas; the
cladoceran, Ceriodaphnia dubia; and the green alga, Selenastrum
capricornutum. Marine and estuarine organisms currently include
the sheepshead minnow, Cvprinodon varieaatus: the inland
silverside, Menj.dia beryllina? the mysid, Mvsidopsis bahia; the
sea urchin, Arbacia punctulata; and the red alga, Champia
parvula. Organisms used should be disease-free, and positively
identified to species (ideally by an expert taxonomist).
Quality and Source of Test Organisms
.When organism breeding cultures are maintained, the sensitivity
of the offspring should be determined in a toxicity test
performed with a reference toxicant at least once each month. If
preferred, this reference toxicant test may be performed
concurrently with an effluent toxicity test. The standard
reference toxicant test should be conducted using the exact
method for which' the organisms are being evaluated.
Food Quality
Suitable foods must be obtained as described in the toxicity
testing methods manuals. Limited quantities of reference food,
information on commercial sources of good quality foods, and
procedures for determining food suitability are available from
the Quality Assurance Branch, Environmental Monitoring and
Support Laboratory, U.S. Environmental Protection Agency,
Cincinnati, OH 45268. The suitability of each new supply of food
must be determined in a side-by-side test in which the response
12
-------
of test organisms fed with the new food is compared with the
response of organisms fed a reference food or a previously used,
satisfactory food. Preparation of food should follow methods
accepted and published.67"8
Reference 'Toxicants
Reference toxicants are standard chemicals that can be used to
evaluate test organism sensitivity, laboratory procedures, and
equipment. Their use allows a laboratory to compare the response
of test organisms to a reference toxicant under local laboratory
conditions.
When a toxicity value from a test with a reference toxicant does
not fall within the expected range for the test organisms when
using standard dilution water (i.e., reconstituted water), the
sensitivity of the organisms and the overall credibility of the
test system are suspect and should be examined for defects, and
the health of the organisms questioned. The test should be
repeated with a different batch of test organisms.
Four reference toxicants are available to establish the precision
and validity of toxicity data generated by biomonitoring
laboratories; copper sulfate (CuS04), sodium chloride (NaCl),
sodium dodecylsulfate (SDS), and cadmium chloride (CdCl2). The
reference toxicants may be obtained by contacting the Quality
Assurance Branch, Environmental Monitoring and Support
Laboratory, U.S. Environmental Protection Agency, Cincinnati, OH,
45268. Instructions for their use and the expected toxicity
values for the reference toxicants are provided with the samples.
To ensure comparability of quality-assured data on a national
scale, all laboratories must use the same source of reference
toxicant and the same formulation of moderately hard, synthetic
dilution water for freshwater tests and the same sea salt or HSB
for marine tests.
13
-------
A control chart often is prepared for each reference toxicant and
organism combination. With such a chart the cumulative trend
from a series of tests can be evaluated. The mean value and
upper and lower control limits are recalculated with each
successive point until the statistics stabilize. The upper and
lower control limits are two standard deviations from the mean.
Outliers, which are values that fall outside the upper and lower
control limits, and trends of increasing or decreasing
sensitivity are readily identified.
14
-------
ASSESSING DATA QUALITY
Test Acceptability
Test acceptability depends upon test organism mortality in the
test controls. It varies among organisms and tests. For acute
toxicity tests,6 the control survival must be 90 percent or
greater for a valid test. For valid freshwater chronic fathead
minnow'or Ceriodaphnia dubia effluent toxicity tests,6 control
An acute toxicity test is a test of short duration where
the organism response is typically observed in 96 hours or less.
These tests are used to determine the effluent concentration,
expressed as a percent volume, that is lethal to 50 percent of
the organisms within the prescribed time period (LC^). Where
death is not easily detected, such as with invertebrates,
immobilization is considered equivalent to death. Static and
flow-through testing systems are used. Static tests include
nonrenewal test where the organisms are exposed to the same
effluent solution for the duration of the test, and renewal tests
where the test organisms are exposed to a fresh solution of the
same concentration of effluent every 24 hours or other prescribed
interval. A flow-through test typically uses a diluter system
and continuous feed of mixtures of effluent and diluent to a
series of test chambers to ensure that different. organisms are
exposed continuously to different effluent concentrations
throughout the test period.
c A chronic toxicity test is designed to measure long-term
adverse effects of effluents on aquatic organisms. The
organism's response is usually observed in 7 to 9 days, while the
test period itself can last from one hour to several days. These
test are used to determine the more subtle effects of toxicants
such as adverse effects on survival, growth, reproduction,
fertility and fecundity, and the occurrence of birth defects
(teratogenicity). These effects can be quantitatively expressed
in various ways, such as by determining the concentration at
which 50 % of the organisms show a particular adverse effect
(ECjo); or by observing the highest tested concentration at which
the organisms' responses are not significantly different
statistically from controls (the no observable effect
concentration, or NOEC); or by observing the lowest observable
effect concentration at which organisms' responses are different
statistically from controls (the lowest observable effect
concentration, or LOEC).
15
-------
survival must be at least 80 percent. For the fathead minnow
larval survival and growth test, the average dry weight of the
surviving controls should equal or exceed 0.25 mg. For the
Ceriodaphnia dubia survival and reproduction test, there should
be an average of 15 or more young/surviving females in the
control solutions. For valid reference toxicant tests, control
survival growth and reproduction is the same as stated for the
definitive test. For the marine short-term chronic tests with
sheepshead minnow, silverside, or mysid, control survival must be
equal to or exceed 80 percent in a valid test. The sea urchin
test requires control egg fertilization of 70 to 90 percent. The
Champia parvula test requires that control mortality does not
exceed 20 percent and that plants have an average of 10 or more
cystocarps. Other specifications for test acceptability are
provided in test protocols.6'7*8
An individual test may be conditionally acceptable if
temperature, DO, and other specified conditions fall outside
specifications, depending on the degree of the departure and the
objectives of the tests. The acceptability of the test will
depend on the best professional judgment and experience of the
investigator. The deviation from test specifications must be
noted when reporting data from the test.
Precision
Precision is an expression of the degree of reproducibility of
results. The ability of a laboratory to obtain consistent,
precise results should be demonstrated with reference toxicants
before measuring effluent toxicity. The single laboratory
(intra-laboratory) precision of each type of test to be used in a
laboratory should be determined by performing five or more tests
with a reference toxicant. In cases where the test data are
calculated in lethal concentrations (LC^,) and associated
confidence intervals, precision can be described by the mean,
16
-------
standard deviation, and relative standard deviation (percent
coefficient of variation, or CV) of the calculated end points
from the replicated tests. However, in cases where the results
are reported in terms of the No-Observed-Effect Concentration
(NOEC) and Lowest-Observed-Effect Concentration (LOEC), precision
can only be described by listing the NOEC-LOEC interval for each
test. In this case, it is not possible to express precision in
terms of a commonly used statistic.
A new 'statistical procedure, an Inhibition Concentration (1C)
will allow CVs to be calculated on chronic tests. CVs can be
calculated for chronic tests because the 1C, like the LC, is a
point estimate derived from a mathematical model that assumes a
continuous dose-response relationship. Specifically, the 1C is a
point estimate of the concentration that would cause a percent
reduction in a non-quantal biological measurement such as
fecundity or growth. Since the 1C is a point estimate rather
than a range, precision can be described in standard statistical
terms such as mean, standard deviation, and percent coefficient
of variation or CV.11
Other factors which can affect test precision include test
organism age, condition, and sensitivity; temperature control;
feeding; and type of dilution water used. However, these
parameters are considered acceptable when the reference toxicity
data are within the acceptable range.
Accuracy
Accuracy is the nearness of a measurement to its true value. In
a biological toxicity test, accuracy is enhanced with test
replication. Testing protocols are designed with replication
sufficient to ensure that organism mortality or other effects
will be as close to the true value as practicable when dealing
with life sciences. Using EPA-approved test procedures, regular
17
-------
and thorough laboratory inspections and audits, reference
toxicants, and performance evaluation checks will ensure the
highest degree of accuracy currently attainable in biological
toxicity testing.
However, the accuracy of toxicity tests cannot be determined.
This is because toxicity is a relative rather than an absolute
concept, since only organisms can "measure" toxicity, and there
is no true or absolute reference organism. Test results can be
compared, but accuracy, as defined by a deviation from a true
value, cannot be determined.12
Completeness
Completeness is the amount* of data collected compared to the
amount intended to be collected or required. Following EPA
testing protocol will ensure completeness of results. According
to the protocol a valid test requires a specified number of
organisms to be exposed to a test solution under controlled
conditions in both the test and the control for the test.
Representativeness
Representativeness is the extent to which the data collected
accurately reflect the population or group being sampled. In
conducting biological toxicity testing,* there are two areas of
representativeness concern: One is in collecting the sample of
test solution to which the test organisms are exposed; the other
is the species of organism used for the test. Methods of sample
collection are detailed in the EPA testing protocol. A sample
collector must adhere to standard operating procedures in sample
collection, ensure that any sample collecting equipment is
operating properly, and ensure that the integrity of the
collected sample is preserved without dilution or contamination.
The collected sample must, to the greatest extent possible,
18
/J
-------
represent the conditions that the collected sample was designed
to represent. The other question relates to whether or not the
organisms chosen for testing represent the universe of organisms
in the environment that may be at risk when exposed to the test
solution. In this context, representative means, the most
sensitive*, and therefore the most protective of resident species.
EPA has taken great care as a result of years of research
experience to recommend particular organism species as test
organisms. Considering the state-of-the-knowledge, the EPA test
protocol's recommended test organisms are representative of the
organism universe that they have been selected to represent.
Comparab i1itv .
Comparability is the similarity of data from different sources.
Standard procedures for test solution collection, conducting the
test, and analyzing the resultant data must be observed by all who
are engaged in NPDES biological toxicity testing to ensure that
comparability of results is maintained. Different procedures will
have different precision levels, thus invalidating a comparison of
results among laboratories. EPA protocols on biological toxicity
testing are detailed and specific. Strict adherence to these
protocols when conducting a test, along with the use of reference
toxicants and performance evaluation tests, alleviate many of the
comparability concerns that otherwise would occur.
Replication and Test Sensitivity
The sensitivity of the tests will depend in part on the number of
replicates, the statistical probability level selected, and the
type of statistical analysis. The minimum recommended number of
replicates varies with the test and the statistical method used in
each protocol. If the variability remains constant, the
sensitivity of the test will increase as the number of replicates
is increased.
19
-------
REPORTING RESULTS
The report should detail specific information about sampling,
organism culture, and the test, including why -it was performed,
where, when, and how. Plant operations, source of effluent and
dilution water, test methods, test organisms, quality assurance
(i.e., physical-chemical measurements and organism response), data
analysis and test results should be discussed. Facts should be
complete, accurate, and understandable. Report format and
contents have been recommended.6
Good writing is a systematic recording of organized thought. It
involves a clear, concise, orderly presentation of an
understandable message. Quality assurance measures are as
important in report preparation as elsewhere in an investigation.
Generally, such quality assurance takes the form of report peer
review. A review should establish that each sentence is clear,
technically accurate, and devoid of a dual meaning, and that no
unanswered questions about the toxicity test remain. A toxicity
testing report should contain the necessary data, readily
accessible, for use in EPA data systems such as the Permit
Compliance System. The report should be examined and reexamined
to prevent data management errors in transcription, expression of
units, and calculations. The use of preprinted forms is helpful
because attention then is focused on specific data requirements.
Checking of data and calculations by an individual not associated
with the initial calculations is employed to minimize errors.
Reducing the number of people involved in data transfer can
minimize data management errors.
20
725-
-------
REFERENCES
1. Policy and program requirements to implement the mandatory
quality assurance program. EPA Order 5360.1, April 3, 1984.
2. Development of water quality-based permit limitations for
toxic pollutants; national policy. 49 FR 9016, Mar 9, 1984.
3. Technical support document for water quality-based toxics
control. U.S. EPA, Washington, D.C. EPA-440/4-85/032, 1985.
4. Guidelines and specifications for preparing quality assurance
program plans. Quality Assurance Management Staff, U.S. EPA,
Sept 1987.
5. Preparing perfect quality assurance project plans. Risk
Reduction Engineering Laboratory, Cincinnati, OH, EPA/600/9-
89/087 October, 1989.
6. Methods for measuring the acute toxicity of effluents to
freshwater and marine organisms. 1985. U.S. EPA.
Cincinnati, OH, EPA-600/4-85/013.
7. Short-term methods for estimating the chronic toxicity of
effluents and receiving waters to freshwater organisms. 1989.
Second Edition. U.S. EPA, Cincinnati, OH, EPA-600/4-89/001.
8. Short-term methods for estimating the chronic toxicity of
effluents and receiving waters to marine and estuarine
organisms. 1988. U.S. EPA, Cincinnati, OH EPA-600/4-87/028.
9. Handbook for analytical quality control in water and
wastewater laboratories. 1979. U.S. Environmental
Protection Agency, Cincinnati, OH, EPA-600/4-79/019.,
10. Methods for chemical analysis of water and wastes. Revised
1983. U.S. EPA, Cincinnati, OH, EPA-600/4-79/020.
11. Guidelines establishing test procedures for the analysis of
pollutants under the Clean Water Act; Proposed Rule with
Request for Comments. 51 FR 50215, December 4, 1989.
12. Supplement to "Short-term methods for estimating the chronic
toxicity of effluents and surface waters to freshwater
organisms." U.S. EPA, Washington, D.C. EPA-60014-89/001.
21
-------
-------
VLJ.4. "National Policy Regarding Whole Effluent Toxicity Enforcement",
August 14, 1995.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460 x
AUG I A 1995
OFFICEOF
ENFORCEMENTAND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: National Policy Regarding Whole Effluent Toxicity
Enforcement
FROM:
/n^~ Office of Wastewater
TO: Water Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
State NPDES Directors
The purpose of this joint memorandum is to clarify National
policy with regard to the two most common issues raised by the
regulated community involving the enforcement of whole effluent
toxicity (WET) requirements in NPDES permits: 1) single
exceedances of WET limits, and 2) inconclusive toxicity reduction
evaluations (TREs). '
Single Exceedances '
Section 309 of this Clean Water Act (CWA) states that any
violation of a permit condition or limitation is subject to
enforcement. Through EPA's "Enforcement Management System" (EMS)
guidance, the EPA Regional or State enforcement authority is
encouraged to initiate an appropriate enforcement response to all
permit violations. EPA's overall approach to enforcement applies
to all parameters--once a facility has been identified as having
an apparent permit violation(s) , the permitting authority reviews
all available data on the seriousness o'f the violation, the
compliance history of the facility, and other relevant facts to
determine whether to initiate an enforcement .action and the type
of action that is appropriate. The EMS recommends an escalating
response to continuing violations of any parameter.
EPA does not recommend that the initial response to a single
exceedance of a WET limit, causing no known harm, be a formal
enforcement action with a civil penalty. The "Whole Effluent
Toxicity Basic Permitting Principles and Enforcement Strategy"
Recycle d/Recy clable
Printtd with Soy/Canal* Ink on paptr thai
contain* a teast 75% recycled dbor
-------
. 2 '. .
issued by the Office of Water on January 25, 1989 states.that any
violation 6f a WET limit is of concern and. should receive an
immediate, professional review. It does riot necessarily require
that a formal enforcement action be takenthe enforcement
authority has discretion on selecting an appropriate response.
* ' ,
Guidance on enforcement responses to WET violations was
.added to the EMS in 1989. For example, EPA's recommended
response to an isolated or infrequent violation of a WET limit,
causing no known harm, is issuance of a letter of violation or an
Administrative Order (AO), which does not include a penalty. As
with violations of any parameter, the EMS recommends an
escalating enforcement response to continuing violations of a WET
limit.
The regulated community has expressed concern about the
potential for third party lawsuits for single exceedances of WET
limits. Citizens cannot sue a permittee on the basis of a single
violation of a permit .limit. Under § 505(a) of the CWA, citizens
are allowed to take a civil action against anyone who is. alleged
"to be in violation" of any standard or limit under the CWA. In
Gwaltnev of Smithfield. Ltd, v. Chesapeake Bay Foundation. Inc..
484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), the Supreme
Court held that the most natural reading of "to be in violation"
is "a requirement that citizen-plaintiffs allege a state of
either continuous or intermittent violation--that is, a
reasonable likelihood that a. past polluter will continue to
pollute in the future."
Inconclusive TREs
The 1989 "Whole. Effluent Toxicity Basic Permitting
Principles.and Enforcement Strategy" states on page 9:
"In a few highly unusual cases where the permittee has
implemented an exhaustive TRE plan, applied appropriate
influent and effluent .controls, maintained compliance with
all other effluent limits, compliance schedules, monitoring,
and other permit requirements, but is still unable to attain
or maintain compliance with the toxicity-based limits,
special technical evaluation may be warranted and civil
penalty relief granted. Solutions in these cases could be
pursued jointly with expertise from EPA and/or the States as
well as the permittee."
EPA is committed to providing .technical support in the
"highly unusual cases" described above and is in the process of
determining the number of facilities nationwide that fit in this
category. As the WET program has grown and evolved, sources for
this type of technical support have shifted to EPA Regions,
States, and Tribes. In a conference call with Regional permits
and enforcement staff in April and feedback from the annual
-------
Biological Advisory Committee in May, the Regions requested
support from Headquarters in helping to establish national WET
technical expertise to address issues such'as inconclusive TREs.
There has been a national mechanism for this type of support in
the past, as a complement to Regional and State/Tribal efforts
(e.g., the National Effluent Toxicity Assessment Center).,. A
national 'vehicle for this type of effort is currently being
evaluated with a view toward providing additional support for the
national WET program.
EPA believes that the science behind the WET program and
test procedures is sound and .continually improving, and fully
supports the mid-course evaluations that are being planned and
executed through an upcoming WET workshop, as well as other
planned or ongoing studies. The September 1995 workshop is being
organized by the Society for Environmental Toxicology and
Chemistry (SETAC) as part of their Pellston workshop series,
through partial funding from EPA and other groups. The purpose
of the workshop is to assess where we are in the WET program--
i.e., identify technical issues that have been resolved'and need
no further work as well as explore associated technical issues
that do need further research, clarification, or resolution.
Because participation in the workshop is by invitation only, an
open forum will be held soon after the workshop to discuss the
results with all interested parties.
Please call us or have your staff call Kathy Smith (ORE) at
202-564-3252 or Donna Reed (OWM) at 202-260-9532 if you have any
questions regarding this matter.
cc: Tudor Davies (OST)
NPDES Branch Chiefs,. Regions I-X
-------
TAB VI.K
-------
VI. SPECIALIZED ENFORCEMENT TOPICS
K. SLUDGE
-------
VI.K.I,
*** "Permitting and Enforcement Strategy for Implementation of
the Technical Sludge Standards in 40 CFR Part 503", dated
November 4, 1991.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Permitting and Enforcement Strategy for Implementation of the Technical
Sludge Standards in 40 CFR Part 503 .
IA * ^ ' /'
' :/, A '/ I
FROM: Michael B. Cook, Direct^
Office of Wastewater Enfor
TO: Water Management Division Directors
RegionsI-X
The final role and preamble for die Part 503 sludge technical standards was sent by the
Office of Science and Technology (OST) to the Regions on October 29, 1991 in order to initiate
the process of workgroup review that will ultimately culminate in promulgation of the final rule.
We believe that implementation considerations are key to the sludge program - both from the
standpoint of the structure of the rule itself as well in support of the rule after promulgation.
Accordingly, we have developed a draft permitting and enforcement strategy covering
the various items which will be necessary for effective rule implementation. This strategy was
developed based on our ongoing discussions with Regional representatives and was reviewed and
commented on by two Regions. We contemplate that these activities would be completed by the
Office of Wastewater Enforcement and Compliance, with support and assistance from OST,
Office of General Counsel, Office of Enforcement, Regions, and States. The time frames shown
in the strategy are designed to track the final promulgation date for the 503 regulations. The
anticipated date for final promulgation is the subject of ongoing discussions among several
offices. We wul keep you apprised of the results of these discussions.
Please recognize that the outline is preliminary and will be the subject of discussions
within headouarters. with vour offices, and with States fto the extent TvwihM over th*> rnmina
Branch Chiefs and to the Regional sludge coordinators. We think it will be extremely important
to have their input on our implementation plans and look forward to these discussions over the
coming weeks. These discussions should lead to a more detailed version of the strategy which
will elaborate on many of the items discussed.
friiatd OK Kteyeltd Paptr
-------
-2-
Thank you for your support of this important program. Please let me know if you have
any questions or suggestions on our implementation plans.
Attachments
cc: Permits Branch Chiefs, Regions I - X,
Euiuiccmciit Branch Chiefs, Regions I - X
Sludge Coordinators, Regions I - X
-------
PERMITTING AND ENFORCEMENT STRATEGY FOR
THE IMPLEMENTATION OF THE
TECHNICAL SLUDGE STANDARDS IN 40 CFR PART 503
Overall Strategy
Self Implementation and Phased Permit Issuance: The Office of Wastewater Enforcement
and Compliance (OWEC) intends to implement the Part 503 Technical Sludge Standards by
relying, to the extent necessary, on the self implementing nature of Part 503 in the initial period
following promulp"^^" of the st^dr^r: ?.r* on individual «ludge permits in 2 .phi:cd apprcich
occurring in the 5 years subsequent to the establishment of the standards.
Compliance Deadlines: The strategy assumes that, whether or not a permit has been issued,
the compliance date for requirements derived from Part 503 will be 1 year from publication
(except for recordkeeping requirements and certain management practices which would be
required to begin in advance of this date); unless specified otherwise by a permit or the rule.
Self-Monitoring and Inspections: Compliance with the sludge use and disposal requirements
will be verified through the receipt of self monitoring information, as required by permits, and
through the inspection of facility records required to be created and maintained by the rule.
Information on facility compliance will be tracked using the Permit Compliance System (PCS)
(except as otherwise specified for certain types of information).
Enforcement: Enforcement will be taken in accordance with the appropriate regulations, policy,
and guidance referenced in mis strategy. This enforcement will involve EPA responses
including notices of violation, administrative orders, administrative penalty orders, civil law suits
and criminal prosecution.
Implementation Workgroup: OWEC is considering the formation of an implementation work
group to consider issues which may arise following promulgation of Part 503. This work group
may include representatives from the Regions, States, OST and ORD.
The following sections outline the various components of this strategy and indicate the
approximate time for completion of each piece. A comprehensive time chart of the entire
process is included as an attachment.
A.
State Sludge frograms: The Agency's ultimate oojecuve is to authorize all States to administer
the Sludge permitting and enforcement program.
-------
OWEC will attempt to expedite the approval process for States interested, in obtaining
program approval. Limited contractor assistance to prepare State submissions is now
(and has been) available.
OWEC is considering a National Workshop on the development of State Sludge
Programs. Such a workshop could be held in the summer of 1992.
EPA/State Roles: Pending State program approval, EPA will implement and enforce the Part
503 requirements. Guidance, including EPA/State Agreements (similar to interim agreements)
on the potential role of an unapproved State will be provided by the date of final promulgation
and will address the following elements:
in a third quarter FY 92 OWEC Memorandum, States will be encouraged to assist in
implementation and enforcement to the extent they are able and willing to do so.
Permits drafted by unapproved States must contain Part 503 requirements, even where
State law is more stringent
/
Permits drafted by unapproved States will be forwarded to EPA for issuance. Where
possible, Federal permits will be issued in concert with State and Local permits in order
to minimise disruption within the regulated community.
Reports of inspections conducted by unapproved States must be forwarded to the
Regional office.
B. Permit Application*
Permit application information will be required in accordance with the following approach:
Application Forms/Guidance: In the near term, data will be collected individually from
each facility based on guidance on needed application data for each use and disposal
practice which will be made available (to coincide with promulgation of Part 503). In
the long term, EPA will rely on the new application Form 2A for application data
(expected adoption in Summer 1993).
Notification: The strategy calls for effective notification, by the date of final Part 503
rule promulgation, of the treatment works treating domestic sewage which must submit
Application Information: Treatment Works will be asked to identify all practices and
avenues 01 disposal in ineir application ana NVUI u& ua^tu according to this aeciarauon
(i.e., may not arbitrarily switch, without effective notice, from cumulative loads to APL
concentration limits).
-------
Application Deadlines: The current Parts 122/501 regulations require Treatment Works
Treating Domestic Sewage to submit application information within 120 days of 503
promulgation (unless an NPDES permit renewal application is due prior to the full 120
days).
Application Information for Site-Specific Permit Limits: Those Treatment Works
desiring site specific permit conditions (on a parcel-by-parcel basis) must request such
conditions and provide the site specific data at the time of permit application.
Options For Managing Application Submissions
Applications will be directed to States with authorized sludge programs. In the absence
of authorized programs, the strategy assumes all applications will be submitted to EPA
Regional Offices unless EPA directs a facility to submit data to a State Agency pursuant
to an EPA/State Agreement.
Strategy could call for all Treatment Works (16,000) to submit application data
(data used to identify Class I universe);
Strategy could call for all major and other pretreatment POTWs (4000) to submit
application data within 120 days with remaining applications flmmittf^l at time of
permit renewal; or
- Strategy could can for Class I (pretreatment and incinerator feriiiji^) (2000) to
submit data, with the remaining applications submitted at the time of permit
renewal.
Updating Fending Applications and Permit Actions: Strategy will require that, at the
time of final rule promulgation, Treatment Works with pending applications be required
to update or supplement their applications with necessary data on their sludge practices.
After promulgation of part 503, issuance of Class I Facility permits may be delayed until
the Part 503 standards are incorporated into the permit
C. Pemit
OWEC strategy calls for permit issuance to Treatment Works Treating Domestic Sewage. In
** * j * * , *
deemed to be "Treatment Works Treating Domestic Sewage" and required to seek a permit.
(Where entities which arc uol considered to be Treatment Works Treating domestic Sewage"
undertake activities covered by the rule, they would still be required under the rule to meet all
applicable requirements.)
-------
1. Land Application: POTWs; Significant Independent Contractors in the business of
applying sludge (Contractor's permit is issued by jurisdiction in which sludge is applied).
2. D & M: POTWs; Large Non-POTW D&M Manufacturers.
3. Surface Disposal: POTW; Non-POTW Operator of Disposal Unit (If POTW is not
operator, POTW will be required, to send sludge to permitted facility).
4. Incinerator: POTW; Non-POTW Operator of Incinerator (If POTW is not operator,
farilitvV
Options for Prioritizing the Issuance of Sludge Permits (or reopen NPDES Permits in the case
where EPA retains the NPDES program or a State Sludge Program is approved):
Strategy calls for issuing or reopening permits for all majors and other pretreatment
facilities (4000); . . .
*
Strategy calls for issuing or reopening of Class I facilities (2000);
Strategy calls for issuing or reopening permits based on prioritized use and disposal
practices (e.g., incinerators [200] in first six months);
Strategy calls for issuing or reopening permits at Regional discretion; or
Strategy calls for issuing those permits for which permittee has requested site-specific
requirements.
D. Permit Development
Selection of the appropriate option for pollutant limits will be based on an evaluation of
information submitted by the permittee and other relevant information. The permittee would be
expected to indicate which of the regulatory options it wished to pursue and submit the requisite
information. Final development of permit limitations and conditions would be at the discretion
of the Permitting Authority after evaluation of all relevant information. The decision to develop
site specific permit limits on a parcel-by-parcel basis would also be determined in accordance
with this approach.
Permit Writer's Guidance: OWEC promulgated sludge permit regulations in May,
503 into permits (including selecting appropriate limits, site specific permitting and
development of monitoring/reporting requirements) will be needed. Target date for Draft
- date of final promulgation. Additional guidance supporting permitting (e.g. , developing
-------
air dispersion models for incinerators) will be made available as soon as possible
thereafter.
Tools: Depending on Part 503, National General Permit or Model Individual Permits
will be provided to implement requirements for Non-Majors, or Non-Class I Facilities.
Target for Draft - date of final promulgation; Final - one year after final promulgation.
Training: Permit Writer Training conducted in all Regional offices on Part 503
requirements, technical support document, and available supporting guidance. The first
5 workshops will be hel'' ;" coniimction with the AMSA workshops 3 to 6 re~^hs
following promulgation.
E. Septage Appliers
Part 503 is anticipated to be completely self-implementing regarding the regulation of septage
appliers. This group will not be specifically targeted for permit issuance or inspections. The
Part 503 rule does require lecordkeeping by septage appliers and in the event an environmental
problem is suspected to have been caused by the application of septage, the case will be
thoroughly investigated and enforcement will be taken as warranted.
F. Compliance Activities
OWEC expects to concentrate its compliance activities on Class I Facilities. These facilities will
undergo routine inspection and will be expected to submit self monitoring data.
DMRs: OWEC is considering the need to develop a new DMR for sludge reporting
purposes. Such a document will require OMB approval and therefore its availability at
the time of promulgation cannot be assured.
'Data Tracking: The submission of self monitoring data will be tracked as well as sludge
quality values and prescribed management practices.
Inspection Guidance: OWEC has already issued guidance on inspection activities during
the interim period prior to Part 503. It is anticipated mat mis guidance will be
supplemented with references to Part 503 no later than one year after final promulgation.
T ..-,_ ...,.._ < nocc T Taciiities by Regions and approved States will be
determined by the date oi final promulgation.
Inspector Training: OWEC expects to sponsor supplemental inspector training on
sludge requirements in the second through fourth quarters of FY 1993.
-------
Receipt of Data: OWEC anticipates receiving compliance data from Regions and
Approved States on a semiannual basis.
PCS: The Permit Compliance System (PCS) is being modified to accommodate sludge
data. While this process is expected to be ongoing, initial modifications are expected to
be completed at the time of Part 503 promulgation. Changes to the PCS Policy and
WENB data elements will also be made at this time.
SNC: CV/EC is 2] so planning tc establish a definition of significant noncompliance for
reporting and enforcement purposes. Target date is September 30, 1992.
G. EPA JEpfgr^ement Activities
As with other EPA regulatory programs, the circumstances warranting the enforcement of Part
503 requirements is a matter within the discretion of each Region. Significant noncompliance
with sludge requirements should be responded to with a formal enforcement action either by
EPA or an approved State, Where enforcement actions are taken for other Clean Water Act
violations, sludge violations will be expected to be included in the case.
Enforcement Management System: The Agency's EMS will have to be revised to
integrate the enforcement of sludge requirements into the existing enforcement proeram
(Target date - one year after final promulgation).
"Penalty Calculations: Supplemental guidance on penalty calculations to determine BEN
and Gravity will need to be provided (Target date - one year after final promulgation).
Consent Decrees: Model administrative orders, civil complaints, and consent decree
addressing sludge noncompliance may be madg available (Target date - one year after
final promulgation).
Data Bases: Existing data bases will be used to track pending Federal enforcement
actions (no modification needed).
H. Public Outreach
OWEC plans to conduct extensive public outreach to ensure the regulated community and the
public have an opportunity to become familiar with the Part 503 requirements and ask questions
re?ardin? the implementation and enforcement of th*» mips Outreach will inri'"1- -^cnorKorino
public workshops with AMSA, making presentations at AMSA, ASW1PCA and VvPCF
Conferences, and responding to individual inquiries. OWEC will, by the date of final
promulgation of the rule, prepare and distribute to the public, an implementation strategy for the
Part 503 Standards, which includes Q's and A's.
-------
Regional training and oversight will be conducted through discussions at the Branch Chief and
Water Management Division Meetings, permit writer and inspector training, and as a component
of the Annual Regional Review process. In addition, OWEC plans to sponsor a National
Meeting shortly after final promulgation of the rule, for both Federal and State sludge personnel.
Finally, State sludge programs will be encouraged through direct Regional contacts with State
Agencies.
-------
VI.K.2,
*** "Compliance Tracking and Enforcement of the Interim Sludge
Requirements11, dated January 3, 1991.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN 3
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Compliance Tracking and Enforcement of the Interim
Sludge Requirements
FROM: Janes R. Elder, 'Director
Office oftt4ter Enforcement and Permits
TO: Water Management Division Directors
Regions I-X
The purpose of this memorandum is to ensure that procedures
are established in your Region for data tracking, compliance
evaluation, and enforcing the requirements outlined in the
Interim Sludge Permitting Strategy issued in September, 1989. At
a minimum, procedures should be in place for: compliance
evaluation and tracking of permit requirements related to sludge;
identifying instances of noncompliance with these permit
requirements; and enforcement against such noncompliance. These
activities are designed to be incorporated into existing
procedures to minimize the burden on the Region. These measures
are necessary to ensure appropriate implementation of the sludge
management program in the interim and for establishing a
foundation for the long-term sludge program. The long-term
sludge program will begin with the promulgation of the technical
sludge regulations, which are expected to be promulgated in
January, 1992.
On May 2, 1989, EPA promulgated the Sludge State Program and
Permitting Requirements Final Rule (40 CFR Parts 122, 123, 124
and 501). This rule provided the legal and programmatic
framework for a national sludge use and disposal program by
establishing the requirements and procedures for address inq
sludge management in permits issued by EPA, or States with an
approved sludge manaaement program. The rule also codified EPA's
authority to take interim measures prior to the promulgation of
0.1.^ T ---- _4-«, *.!,,., ~-i civi^ae reaulations. These authorities
include requiring monitoring and reporting of sludge quality and
the authority to establish, case-by-case requirements for sludge
use and disposal.
Primed on Rtcycled Paper
-------
. In September, 1989, the Office of Water (OW) issued the
final Sewage Sludge Interim Permitting Strategy. This Strategy
outlined EPA's policies for implementing the requirements of
Section 405(d)(4) of the Clean Water Act in the interim period
prior to the promulgation of the final technical sludge
regulations. The Strategy centered around the requirements for
sludge management to be imposed in NPDES permits issued to POTWs.
In order to implement the requirements of Section 405(d)(4) of
the Clean Water Act, the Strategy requires that:
All NPDES permits issued to POTWs shall require that the
periu4.uuoe comply with all existing leaerai i.c<-,ulai_.i.*..'._
governing the use and disposal of sewage sludge;
All permits shall contain a reopener clause to be used
upon promulgation of the Part 503 technical regulations
to incorporate these requirements into the permit;
The permittee shall notify the permitting authority of
any significant change in its sludge use or disposal
practice;
All permits shall contain sludge monitoring requirements;
and
All permits issued to priority POTWs shall contain
additional conditions developed on a case-by-case basis
as necessary to ensure protection of public health and
the environment. .
Therefore, at the time of permit reissuance, all POTWs should
have conditions for sludge management included in their NPDES
permit.
The Interim Strategy and the Part 501 rule establish the
framework for managing sludge prior to the promulgation of the
technical sludge regulations. As such, they represent the
minimum implementation activities required for sludge program
management. In order to enforce these requirements, it will be
necessary to implement the measures identified below, including:
tracking and data entry, compliance assessment, inspections and
enforcement.
EPA has the primary responsibility for compliance tracking
and enforcement of sludge requirements in the interim period. A
primary empnasis or x.ae inx.er.uu Duiaueyy, iiu*evt±i, us uu
encourage States with existing effective sludge management
-------
programs to accept the responsibility for sludge implementation
in the interim period through the development of an agreement
between' the State and EPA. Where an agreement has been
established for sludge management, the responsibilities for
sludge implementation and enforcement can be shared pursuant to
the conditions in the agreement. States should be encouraged to
take on the responsibility for sludge permitting, tracking and
data entry, compliance assessment, inspections, and enforcement
in the interim period to the extent that they are willing and
able to do so.
and Data Entr
The Permit Compliance System (PCS) should be used for
tracking the sludge quality monitoring data received from POTWs,
and for evaluating compliance with monitoring requirements and
case-by-case sludge conditions, including any applicable sludge
limits.
The requirement to monitor and report sludge quality applies
to all POTWs with NPDES permits, whereas additional case-by-case
conditions are to be imposed on "priority" .POTWs. These
requirements are to be included in the permit at the time of
permit reissuance. In most cases, these priority facilities will
be majors, but in some cases priority sludge facilities will be
minors. Data entry into PCS is required for all facilities
defined as majors (including those facilities which are selected
as majors by the Region). Therefore, sludge monitoring data
reported to the Region by priority facilities which are majors
should be entered into PCS. We recommend tracking sludge
monitoring data from minor facilities, but data entry into PCS
for these facilities is not required.
The federal regulations (40 CFR 122.41(1) (4) (i) ) require
that sludge reports be submitted on DMRs or forms specified by
the prmitting authority. Since the manner of reporting will
affect the ease with which data can be entered into PCS, we
recommend that your Region require the use of DMRs, or other
forms which use the same format, for sludge reporting so that
data entry is facilitated into PCS.
Within PCS, the tracking of sludge monitoring data can be
accomplished through the use of the pipe schedule family. Sludge
data can be tracked under a separate "pipe" which is designated
solely for tracking sludge and which is described as such in the
uat.0., *_....-_*. __-_ ».. **_ ^^~_w ^.w-.*. -. _. ~_ ----
pipe description (PIPE) field. In this way, sludge monitoring
data can be differentiated from effluent data received from the
same facility. Once the sludge "pipe" has been established, the
pollutants for which the sludge is monitored can be entered as
-------
Parameter Limit data. To further distinguish sludge from
effluent data at the Parameter Limit level, use the monitoring
location (HLOC) of."+" in PCS. .If any applicable case-by-case
numeric limits have been established for sludge in the POTW's
permit, these limits can also be entered as Parameter Limit data
into PCS. In rare instances, where case-by-case numeric limits
have been established by the permit writer for more than one
disposal option, the Region should use a separate "pipe" in PCS
for each such disposal option. The numerical data received from
POTWs on sludge quality .can be entered into PCS as Measurement
Violation data. Once these data are entered, PCS will compare
*rhc dat? vith any appii-abi«_ limits to determine the compliance
status of the facility.
Compliance Assessment
Data which are input into PCS in the manner described above
will show up on the QNCR in the case of absent or missing data
under the pipe schedule. If only certain pollutants are missing
from the sludge data in PCS, then the facility will be in RNC.
If all data are missing for sludge under the pipe schedule, the
facility will be in SNC and will be so identified by PCS.
Violations of applicable sludge limits will not automatically be
determined to be SNC or RNC, since it is unlikely that enough
data will be input for the system to make the RNC or SNC
calculation. The Region can manually flag these limit violations
as RNC in the same way as for effluent violations. Sludge
violations, like any other violations identified as ?*T" "*
required to be responded to in a timely and appropriate ^
the permitting authority.
Inspections .
EPA Headquarters is developing guidance for incorporating
sludge into existing inspections in the interim period. This
guidance should be available early in 1991 and contains, among
other things, sludge inspection checklists which can be
incorporated into the existing CEI and PAI inspections. These
checklists are designed to assist inspectors in determining
compliance with interim sludge requirements. The existing NPDES
Inspection Manual (May, 1988) also contains questions to assist
in evaluating sludge treatment operations. These questions can
be used during current inspections until the new checklists are
distributed to the Regions.
conditions for priority facilities. Therefore, the Regions
should focus their inspeqtion activities for sludge at these saine
facilities. Evaluating compliance with sludge permit conditions
should be combined with the CEI or PAI, but may be conducted as a
-------
separate site visit. For priority sludge facilities, compliance .
with sludge permit conditions should be determined as part of the
regularly scheduled site visit.
Enforcement
Violations of sludge permit conditions constitute
noncompliance with the Clean Water Act and, as such, are subject
to enforcement action. . If a facility is determined to be in
noncompliance with any applicable sludge requirements, the Region
should follow the principles of their existing EMS to develop
compliance information and to translate that information into
appropriate enforcement action. The Region should pay particular
attention to facilities which fail to submit required sludge
monitoring reports, since the data contained in these reports
will form a basis for developing permit conditions for the long-
term sludge program.
One of the primary objectives for imposing sludge conditions
in permits in the interim period is to establish base-line data
regarding sludge quality and sludge use and disposal practices.
These data will be crucial once the long-term sludge program is
initiated since these data will be used to establish appropriate
permit conditions for sludge use and disposal. It is necessary
to begin the preparation for the long-term program now so that
data are available and procedures are in place prior to the
effective date of the upcoming technical sludge regulations.
period tor sxuage, or xj. ^uu wane. t_u
requirements further, contact me at .(FTS) 475-8488. The staff
contact familiar with these sludge compliance monitoring and
enforcement issues is Lee Okster, (FTS) 475-8329.
cc: Cynthia Dougherty
Regional Sludge Coordinators
-------
TAB VI.L
-------
VI.L.I.
"Enforcement Efforts Addressing Sanitary Sewer Overflows",
March 7, 1995.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
0 7 1995
MEMORANDUM
SUBJECT:
FROM:
Enforcem
Addressing Sanitary Sewer Overflows
TO:
Steven ty jK&cmf&y Assistant Administrator
O;!fice of Enforcement and Compliance Assurance
Robert Perciasepe, Assistant
Office of Water
Water Management Division Directors, Regions I - X
Regional Counsels, Regions I - X
State Directors
Sanitary sewer overflows (SSOs) are discharges of untreated
sewage from a separate sanitary sewer collection system'prior to
the headworks of a sewage treatment'plant. These systems are
designed to collect and c.onvey sewage from households and
businesses and wastewater from industries to sewage treatment
plants for treatment in accordance with Clean Water Act
requirements prior to discharge to waters of the United States.
Due to the physical characteristics of some pipelines (joints,
broken sections, installation below groundwater levels, manholes,
and.illegal connections), these systems also collect storm water
and ground water. SSO discharges to waters of the United States
are prohibited by the Clean Water Act unless authorized by a
National Pollutant Discharge Elimination System (NPDES) permit.
Discharges without an NPDES permit are illegal. In addition, SSO
discharges often cause violations of water quality standards and
violate NPDES permit requirements for proper operation and
maintenance. SSOs are important concerns for the environment,
human health, the owners and the regulatory agencies.
The Environmental Protection Agency (EPA) has limited
information about the magnitude of SSO problems nationally and
about how various NPDES permitting authorities are addressing the
serious infrastructure, health and water quality problems caused
by SSOs. The EPA must also ensure appropriate national
consistency in addressing SSOs.
Hm»0*ll»iSoy*«no»«lf*onp«p»fm«
eom*in»*tt**stSO% recycled fiber
-------
. .- ^ 2 -
The EPA .is beginning a dialogue among interested parties on
how to improve our knowledge about this serious problem.
Initiating thedialogue has caused some participants and others
to question the EPA about how the dialogue will affect SSO
enforcement actions. The dialogue will not affect in any way
ongoing enforcement actions that address SSOs. The dialogue also
will not preclude the EPA or States from bringing additional
enforcement actiqns. The EPA believes that a delay in
enforcement is unwarranted because of the seriousness of many of
these discharges tto public health and water quality. .
The EPA hopes the dialogue will result.in a better
understanding nationally of the problem and perhaps national
guidance to States and Regions on how to better protect the
public and the environment from these serious sources of water
pollution and human health risks: .
If you have any questions on this memorandum, please contact
either Alan Morrissey of the Office of Enforcement and Compliance
Assurance at (202) 564-4026, or Kevin Weiss of the Office of
Wastewater Management at (202) 260-9524.
-------
VI.L.2. Addition of Chapter X to Enforcement Management System (EMS):
"Setting Priorities for Addressing Discharges from Separate Sanitary
Sewers', March 7, 1996.
-------
*\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
3 WASHINGTON, D.C. 20460
MAR 7 1996 OFFICE OF
I TO I IJWU ENFORCEMENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: Addition of Chapter X to Enforcement Management
System (EMS): Setting Priorities for Addressing
Discharges from Separate Sanitary Sewers
FROM: Steven A. Her^Wl^
Assistant AdmiruL sprat or
TO: Water Management Division Directors, Regions l-x
NPDES State Enforcement Directors
Regional Counsels, Regions I-X
I am pleased to transmit to you a new chapter in final form
for the Enforcement Management System (EMS) Guide. This new
chapter provides a method of setting priorities for addressing
discharges of untreated sewage from separate sanitary sewer
collection systems prior to the headworks of a sewage treatment
plant. Included with this chapter is an Enforcement Response
Guide, specifically tailored to these types of discharges.
I want to express my appreciation to those Regional,
Headquarters, State personnel, and the members of the Federal
Advisory Sub-Committee for Sanitary Sewer Overflows (SSO) who
helped develop this document. The Advisory Sub-Committee
reviewed it at two public meetings in August and October, 1995.
The cooperation and hard work of all interested parties has
produced this final document which I believe will help protect
public health and the environment from these serious sources of
water pollution.
This guidance supplements the current'EMS by establishing a
series of guiding principles and priorities for use by EPA
Regions and NPDES States in responding to separate sanitary sewer
discharge violations. The guidance allows sufficient flexibility
to alter these priorities based on the degree of public health or
environmental risk presented by specific discharge conditions.
Implementation of this guidance by EPA and the States will
promote national consistency in addressing discharges from
separate sanitary sewers. Implementation will also ensure that
tocyctodfftocyctaM* . Printed with Vegetable Oil Based into on 100% Recycled Paper (40% Postconsumer)
-------
- .2 -
enforcement resources are used in ways that maximize public
health and environmental benefits.
The Regions should ensure that all approved States are aware
of this additional EMS guidance, and the Regions and NPDES States
should begin the process of modifying their written EMS documents
to include it. Both Regions and States should have'these
documents revised and implemented no later that November 15,
1996.
If you have questions about this document, please feel free
to contact Brian J. Maas, Director, Water Enforcement Division
(202/564-2240), or Kevin Bell of his staff (202/564-4027).
cc: Mike Cook, OWM
Attachments
-------
THE ENFORCEMENT MANAGEMENT SYSTEM
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
(CLEAN WATER ACT)
CHAPTER X: Setting Priorities for Addressing Discharges
from Separate Sanitary Sewers
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF REGULATORY ENFORCEMENT
1996
-------
ENFORCEMENT MANAGEMENT SYSTEM - 'CHAPTER X
Setting Priorities for Addressing Discharges from
Separate Sanitary Sewers
Discharges of raw or diluted sewage from separate sanitary
sewers before treatment can cause significant public health and
environmental problems. The exposure of the public to these
discharges and the potential health and environmental impacts are
the primary reasons EPA is developing this additional guidance on
these discharges. This document provides a method of setting
priorities for regulatory response, and serves as a supplement to,
the Enforcement Management System guidance (EMS, revised February
27, 1986). As such, this document addresses only those
discharges which are in violation of the Clean Water Act. As a
general rule, the discharges covered by this guidance constitute
a subset of all discharges from separate sanitary sewer systems.
Legal Status
In the context of this document, a "discharge from a
separate sanitary sewer system" (or "discharge") is defined as
any wastewater (including that combined with rainfall induced
infiltration/inflow) which is discharged from a separate sanitary
sewer that reaches waters of the United States prior to treatment
at a wastewater treatment plant. Some permits have specific
requirements for these discharges, others have specific
prohibitions under most circumstances, and still other permits
are silent on the status of these discharges.
The legal status of any of these discharges is specifically
related to the permit language and the circumstances under which
the discharge occurs. Many permits authorize these discharges
when there are no feasible alternatives, such as when there are
circumstances beyond the control of the municipality (similar to
the concepts in the bypass regulation at 40 CFR Part 122.41 (m)).
Other permits allow these discharges when specific requirements
are met, such as effluent limitations and monitoring/reporting.
Most permits require that any non-compliance including
overflows be reported at the end of each month with the discharge
monitoring report (DMR) submittal. As a minimum, permits
generally require that overflow summaries include the date, time,
duration, location, estimated volume, cause, as well as any .
observed environmental impacts, and what 'actions were taken or
are being taken to address the overflow. Most permits also
require that any non-compliance including overflows which may
endanger health or the environment be reported within 24 hours,
and in writing within five days. Examples of overflows which may
endanger health or the environment include major line breaks,
overflow events which result in fish kills or other significant
harm, and overflow events which occur in environmentally
sensitive areas. . .
-------
2
For a person to be in violation of the Clean Water "Act:
1) a person must own, operate, or have substantial control over
the conveyance from which the discharge of pollutants occurs,
2) the discharge must be prohibited by a permit, be a violation
of the permit language, or not be authorized by a permit, and 3)
the discharge must reach waters of the United States. In
addition, discharges that do not reach waters of the United
States may nevertheless be in violation of Clean Water Act permit
requirements, such as those requiring proper operation and
maintenance (O&M), or may be in violation of state law.
Statement of Principles
The following six principles should be considered as EPA
Regions and States set priorities for addressing violating
discharges from separate sanitary sewers:
1. All discharges (wet weather or dry weather) which cause or
contribute significantly to water quality or public health
problems (such as a discharge to a public drinking water supply)
should be addressed as soon as physically and financially
possible. Other discharges may, if appropriate, be addressed in
the context of watershed/basin plans (in conjunction with state
or federal NPDES authorities*) .
2. Discharges which occur in high public use or public access
areas and thus expose the public to discharges of raw sewage
(i.e., discharges which occur in residential or business areas,
near or within parks or recreation areas, etc.) should be
addressed as soon as physically and financially possible.
3. Dry weather discharges should be addressed as soon as
physically and financially possible.
4. Discharges due to inadequate operation and routine
maintenance should be addressed as soon as possible. (Physical
and financial considerations should be taken into account only in
cases where overflow remedies are capital intensive.)
5. Discharges which could be addressed through a comprehensive
preventive maintenance program or with minor capital investment
should be addressed as soon as physically and financially
possible.
6. With respect to principles 1 through 5 above, schedules of
compliance which require significant capital investments should
take into account the financial capabilities of the specific
municipality, as well as any procedures required by state and
local law for publicly owned facilities in planning, design, bid,
award, and construction. (See later sections on Schedules).
-------
Causes of Sanitary Sewer Discharges
Discharges from separate sanitary sewers can be caused by a
variety of factors including, but not limited to:
1. Inadequate O&M of the collection system. For example,
failure to routinely clean out pipes, failure to properly seal or
maintain manholes, failure to have regular maintenance of
deteriorating sewer lines,, failure to remedy poor construction,
failure to design and implement a long term replacement or
rehabilitation program for an aging system, 'failure to deal
expeditiously with line blockages, or failure to maintain pump
stations (including back-up power).
2. Inadequate capacity of the se'-er system so that systems
which experience increases in flow during storm events are unable
to convey, the sewage to the wastewater treatment plant. For
example, allowing new development without modeling to determine
the impact on downstream pipe capacity, insufficient allowance
for extraneous flows in initial pipe design (e.g. unapproved
connection of area drains, roof leaders, foundation drains), or
overly optimistic Infiltration/Inflow reduction calculations.
3. Insufficient capacity at the wastewater treatment plant so
that discharges from the collection system must occur on a
regular basis to limit flows to the treatment plant. For
example, basic plant designs which do not allow sufficient design
capacity for storm flows.
4. Vandalism and/or facility or pipeline failures which occur
independent of adequate O&M practices.
Applicable Guidance
For many years, EPA and the States have been working with
municipalities to prevent discharges from separate sanitary sewer
systems. The preferred'method has been to use the general policy
on responding to all violations of the Clean Water Act which is
contained in the EMS guidance. Factors which are considered are
the frequency, magnitude, and duration of the violations, the
environmental/public health impacts, and the culpability of the
violator. This guidance sets up a series of guiding principles
for responding to separate sanitary sewer discharge violations,
and it supplements the current EMS.
Every EPA Region and State uses some form of this general
enforcement response guidance as appropriate to the individual
state processes and authorities. Under the guidance, various EPA
Regions and States have taken a large number of formal
enforcement actions over the past several years to address
sanitary sewer discharge problems across the country. Responses
have included administrative orders and/or civil judicial actions
-------
against larger municipalities to address sanitary sewer discharge
problems, resulting in substantial injunctive relief in some
cases.
As a result of EPA Region and State enforcement efforts, a
number of municipalities have invested substantial resources in
diagnostic evaluations and designing, staffing, and implementing
O&M plans. Other municipalities have undertaken major
rehabilitation efforts and/or new construction to prevent
sanitary sewer discharges.
Priorities for Response
There are approximately 18,500 municipal separate sanitary
sewage collection systems (serving a population of 135 million),
all of which can, under certain circumstances, experience
discharges. Given this fact, the Agency has developed a list of
priorities in dealing with the broad spectrum of separate
sanitary se'wer discharges to ensure that the finite enforcement
resources of EPA and the States are. used in ways that result in
maximum environmental and public health benefit. However, these
priorities should be altered in a specific situation by the
degree of health or environmental risks presented by the
condition(s).
In the absence of site-specific information, all separate
sanitary sewer discharges should be considered high risk because
such discharges of raw sewage may present a serious public health
and/or environmental threat. Accordingly, first priority should
be given within categories (such as dry weather discharges and
wet weather discharges) to those discharges which can be most
quickly addressed. The priority scheme listed below takes this
into account by first ensuring that municipalities are. taking all
necessary steps to properly operate and maintain their sewerage
systems. Corrective action for basic O&M is typically
accomplished in a short time, and can yield significant public
health and .environmental results.
Risk again becomes a determinant factor when conditions
warrant long term corrective action. The goal here should be to
ensure that capital intensive, lengthy compliance projects are
prioritized to derive maximum health and environmental gains.
The priorities for correcting separate sanitary sewer
discharges are typically as follows:
1) Dry weather, O&M related: examples include lift stations or
pumps that are not coordinated, a treatment plant
that is not adjusted according to the. influent flow, poor
communication between field crews and management,
infiltration/inflow, and/or pretreatment problems.
-------
2) Dry weather, preventive maintenance related: examples include
pumps that fail due to poor' maintenance, improperly calibrated'
flow meters and remote monitoring equipment, insufficient
maintenance staff, deteriorated pipes, and/or sewers that are not
cleaned regularly.
3) Dry weather, capacity related: examples include an
insufficient number or undersized pumps or lift stations,
undersized pipes, and/or insufficient plant capacity.
4) Wet weather, O&M related: examples include excessive.inflow
and/or infiltration (such as from improperly sealed manhole
covers), inadequate pretreatment program (i.e. excessive
industrial connections without regard to line capacity),'
uncoordinated pump operations, treatment plant operation that is
not adjusted according to the influent flow, poor coordination
between field crews and management, illegal connections, and/or
no coordination between weather forecast authorities and sewer
system management.
5) Wet weather, preventive maintenance related: examples
include poor pump maintenance leading to failure, improperly
calibrated flow meters and remote monitoring equipment,
insufficient maintenance staff, and/or sewers that are not
cleaned regularly.
6) Wet weather, O&M minor capital improvement related: examples
include the upgrading of monitoring equipment, pumps, or computer
programs, and/or repair or replacement of broken manholes or
collapsed pipes.
7) Wet weather capacity, quick solution related: examples
include a known collection system segment that is a "bottleneck",
pumps beyond repair in need of replacement, and/or need for
additional crews or technical staff.
8) Wet weather, capacity, health impact related requiring long
term corrective action: examples .include frequent discharges to
public recreational areas, shellfish beds, and/or poor
pretreatment where the total flow is large.
9) Wet' weather, capacity, sensitive area related requiring long
term corrective action: examples include discharges to
ecologically and environmentally sensitive areas, as defined by
State or Federal government.
Selecting A Response
The appropriate regulatory response and permittee response
for separate sanitary sewer discharges will depend on the
specifics of ea-ch case. The regulatory response can be informal,
formal, or some combination thereof. Typical regulatory
-------
responses include a phone call, Letter of Violation (LOV),
Section 308 Information Request, Administrative Order (AO),
Administrative Penalty Order (APO), and/or judicial action. The
permittee response can range from providing any required
information to low cost, non-capital or. low capital improvements
to more capital intensive discharge control plans.
The attached chart lists some categories of separate
sanitary sewer noncompliance along with the range of response for
each instance. The chart is intended as a guide'. The responses
listed on the chart are not to be considered mandatory responses
in any given situation. EPA and the States should use the full
range of regulatory response options (informal, formal, or some
combination thereof) to ensure that the appropriate response or
remedy is undertaken by the permittee or municipality. All
regulatory responses should be in accordance with the concept of .
the EMS regarding orderly escalation of enforcement action.
Developing Compliance Schedules
A compliance schedule should allow adequate time for all
phases of a sanitary sewer discharge control program, including
development of an O&M plan, diagnostic evaluation of the
collector system, construction, and enhanced O&M.
Municipalities should be given a reasonable length of time to
develop schedules so they can realistically assess their
compliance needs, examine their financing alternatives, and work
out reasonable schedules for achieving compliance. Nevertheless,
timelines for schedules should be as short as physically and
financially possible.
Short Term Schedules
In general, short term schedules would be appropriate for
sanitary sewer discharges involving O&M problems, or where only
minor capital expenses are needed to correct the problem. The
schedule should have interim dates and a final compliance date
incorporated in the administrative order or enforcement
mechanism.
Comprehensive Discharge Control Schedules
Comprehensive discharge control schedules should be used
where specific measures must be taken to correct the discharges,
and the measures are complicated, costly, or require a
significant period of time to implement. If appropriate, these
schedules should include the use of temporary measures to address
high impact problems, especially where a long term project is .
required to correct the sanitary sewer discharge violation.
When working with municipalities to develop comprehensive
schedules, EPA Regions and States should be sensitive to their
-------
- . 7 ..
special problems and needs, including consideration of a
municipality's financial'.picture. Factors that should be
considered are the municipality's current bond rating, .the amount
of outstanding indebtedness, population and income information,
grant eligibility and past grant experience, the presence or
absence of user charges, and whether increased user, charges would
be an effective fund-raising mechanism, and a comparison of user
charges with other municipalities of similar size and population.
Physical capability should be, considered when schedules are
developed. Schedules should- include interim milestones and
intermediate relief based on sound construction techniques and
scheduling such as critical path method. Compliance schedules
should be based on current sewer system physical inspection data
adequate to design sanitary sewer discharge control facilities.
Schedules should not normally require extraordinary measures such
as overtime, short bidding times, or other accelerated building
techniques. Where possible, schedule development should be
completed according to normal municipal government contracting
requirements.
Financial capability should also be considered in schedule
development, including fiscally sound municipal financing
techniques such as issuing revenue bonds, staging bond issuance,
sequencing project starts, sensitivity to rate increase
percentages over time.
Note: The intent of this guidance is to aid the Regions and
States in setting priorities for enforcement actions based on
limited resources and the need to provide a consistent level of
response ,to violations. This does not represent final Agency
action, but is intended solely as guidance. This guidance is not
intended for use in pleading, or at hearing or trial. It does
not create any rights, duties, obligations, or defenses, implied
or otherwise, in any third parties. This guidance supplements
the Agency's Enforcement Management System Guide (revised
February 27, 1986). .
-------
ENFORCEMENT RESPONSE GUIDE
DISCHARGES FROM SEPARATE SANITARY SEWERS
NONCOMPLIANCE
^Discharge without a
permit or in violation
of general prohitition
Discharge without a permit
or in violation of general
prohibition
Discharge without a permit
or in violation of general
prohibition
Discharge without a permit
or in violation of general
prohibition
Discharge without a permit
or in violation of general
prohibition
^jscharge without a permit
^Fin violation of general
prohibition
Discharge without a permit
or in violation of general
prohibition
Discharge without a permit
or in violation of general .
prohibition
Discharge without a permit
or in violation of general
prohibition
Discharge without a permit
or in violation of general
prohibition
CIRCUMSTANCES
Isolated & infrequent,
dry weather O&M
related
Isolated & infrequent,
dry weather capacity
related
Isolated & infrequent,
wet weather O&M
related
Isolated & infrequent,
wet weather, quick and
easy solution
Isolated & infrequent; wet
weather capacity related,
health and/or sensitive areas
Isolated & infrequent, wet
weather capacity related,
non-health, non-sensitive areas
Cause unknown
Permittee does not respond
to letters, does not follow
through on verbal or written
agreement
Frequent, does not signifi-
cantly affect water quality,
no potential public health
impact
Frequent, cause or contribute
significantly to WQ problems,
or occur in high public use and
public access areas, or other-
wise affect public health
RANGE OF RESPONSE
Phone call, LOV,
308 request
308 request, AO,
APO, Judicial action
Phone call, LOV,
308 request
LOV, 308 request
LOV, 308 request, AO,
APO
Phone call, LOV, 308
request
Phone call, LOV, 308
request
AO, APO, judicial
action
LOV, 308 request,
AO, APO
AO, APO, judicial
action
-------
-2 -
ENFORCEMENT RESPONSE GUIDE
DISCHARGES FROM SEPARATE SANITARY SEWERS
NONCOMPLIANCE
CIRCUMSTANCES
RANGE OF RESPONSE
Missed interim date in CDCP
Will not cause late final date
or other interim dates
LOV
Missed interim date in CDCP
Missed final date in CDCP
Missed final date in CDCP
Failure to report overflows
(as specified in permit)
Failure to report overflows
(as specified in permit)
Failure to report overflows
(as specified in permit)
Failure to report permit
requirements
Will result in other missed
dates, no good and valid cause
Violation due to force
majeure
Failure or refusal to comply
without good and valid
cause
Isolated and infrequent,
health related
Isolated and infrequent, water
quality and environment related
Permittee does not respond to
letters, does not follow through
on verbal or written agreement,
or frequent violation
Any instance
LOV, AO, APO,
judicial, action
Contact permittee and
require documentation of
good or valid cause
AO, APO or judicial
action
Phone call, LOV, AO, APO
Phone call, LOV, AO, APO
AO, APO, judicial action,
request for criminal
investigation
Phone, LOV, AO, APO
CDCP=Comprehensive Discharge Control Plan
-------
TAB VI.M
-------
VI.M.I.
"Storm Water Enforcement Strategy", January 12, 1994.
-------
\
Ti UNITED STATES ENVIRONMENTAL PROTECTION AGENCV
? ' WASHINGTON D C 2046C
'"V I 9 fOO/j
MEMORANDUM - '
SUBJECT: Storm Water1 Enforcement Strategy
.- .
FROM: Michael B. Cook, Director; j ,: ; r ,*3'
OfFice of Wastewater Enforcement and Compliance
Frederick F. StieM
Enforcement Counsel for 'Water
TO: Water Management Division Directors
Regions l-X
Regional Counsels
Regions l-X
Attached is the Storm Water Enforcement Strategy for FY 1994-1995. This strategy
incorporates comments received from Regions and States on two draft versions as well as input by
an EPA/State Storm Water Workgroup. The Workgroup meeting in February included
representatives from Headquarters, three Regions, and two States.
The strategy focuses on getting regulated entities "into the system" by identifying and
taking action against Municipal Separate Storm Sewer System (MS4) entities and facilities that
have not filed » permit application. While the approach to dealing with the MS4 universe is
relatively straightforward, the large remaining number of regulated facilities requires that we utilize
different approaches than we have in the past to deal with noncompliance. Some approaches
utilize "sweeps" which concentrate activity in a watershed or geographic location. Such activities
may be mailings, telephone canvassing or inspections and then publication of these activities in
order to give visibility to the program. Regions will also want to review any active judicial cases
to determine whether a facility is subject to the storm water regulations, coordinate with
municipalities regarding facilities within-its jurisdiction, and inquire as to the status of a facility's
permit application during routine NPDES inspections. Citizen complaints and contact with local
sediment/erosion control programs will also be an important source of information for construction
'sites.
-------
-2-
Three points from the strategy are worth highlighting: 1) Section 308 letters may be used
to request the submittal of a NOI/permit application from more than nine addressees nationwide:
2) a storm water discharge need not be observed in order to determine inclusion in the program
(but evidence of a conveyance for a discharge must exist), and; 3) failure to apply for a permit is a
violation of Section 308, as this section requires reports or other information to carry out Section
402. .
Although this strategy was developed for use by EPA Regions, States may want to adopt a
similar approach to enforcement. Several Regions have begun .compliance/enforcement activities
and we need to share information about Regional as well as State activities. The National Storm
Water Coordinators' Meeting, scheduled for February 2-4, 1994 in Washington, DC, will be an
excellent opportunity to exchange ideas and experiences about the compliance/enforcement issues
of the program.
Finally, we want to thank Gerry Levy of Region I for his participation as leader of the
Storm Water Workgroup. If you have any questions regarding the strategy, contact David Lyons
at (202)-260-8310 or John Lyon at (202)-260-8177.
Attachment
cc: Compliance Branch Chiefs, Regions I-X
Permits Branch Chiefs, Region I-X
Water Branch Chiefs, ORC, Regions I-X
Storm Water Coordinators, Regions I-X
-------
STORM WATER ENFORCEMENT STRATEGY
FY 1994-1995
Summary
The goal of this enforcement strategy is: Equitable and consistent enforcement against
non-complying priority storm water dischargers used in combination with incentive measures to
achieve compliance. Full participation and compliance by the entire regulated community is the
long term goal .of this strategy, as it is for all the Agency's enforcement strategies. Although this
strategy was developed for use by EPA Regions, approved NPDES States may want to adopt a
similar approach when developing their enforcement strategy.
Outreach has been the primary mechanism used thus far to achieve compliance. To provide
for a nationally coordinated effort, starting in FY 1994, we will increase the use of compliance
monitoring and enforcement to obtain compliance. The compliance/enforcement priorities for the
program in FY 1994-1995 are identification of and action against: 1) municipal separate storm
sewer systems (MS4s) entities that have failed to submit a timely and complete permit application;
2) regulated facilities which failed to apply for a permit and are outside the jurisdiction of a
regulated MS4; and 3) regulated facilities which failed to apply for a permit and are within
jurisdiction of a regulated MS4.
The way the A gency intends to manage its storm water program is based on three
principles: 1) inte^. . of storm water co .Chance/enforcement activities into NPDES and other
media inspection activities; 2) use of publicity to maximize the impact of any enforcement
actions; and 3) expediting the Administrative Penalty Or-ier/Administrative Order issuance process.
The size of the regulated universe far exceeds that of the traditional NPDES program. Therefore,
Regions and States are encouraged to make use of new approaches to enforcement and share
information with each other about what works and what doesn't.
This strategy discusses the compliance/enforcement activities to identify non-filers, use of
local/State sediment/erosion control programs to manage regulated construction sites, and ways to
expedite the issuance of the Administrative Penalty Order and Administrative Order.
-------
STORM WATER ENFORCEMENT STRATEGY
FY 1994-1995
I. Storm Water Program Background
A. General
Pollutants in storm water discharges from many sources are largely uncontrolled. The
National Water Quality Inventory: 1990 Report to Congress provides a general assessment of
water quality based on biennial reports submitted by States as required by Section 305(b) of the
Clean Water Act (CWA). The report indicates that approximately 30% of identified cases of water
quality impairment are attributable to storm water discharges. States identified a number of major
sources of storm water runoff that cause water quality impacts, including separate storm sewer
systems, and construction, waste disposal, and resource extraction sites.
The Federal Water Pollution Control Act of 1972 prohibits the discharge of any pollutant to
waters of the United States from a point source unless the discharge is authorized by a National
Pollutant Discharge Elimination System (NPDES) permit Efforts to improve water quality under
the NPDES program traditionally have focused on reducing pollutants in discharges of industrial
process wastewater and from municipal sewage treatment plants. Efforts to address storm water
discharges under the NPDES program have generally been limited to certain industrial categories
with effluent limits for storm water.
In response to the need for comprehensive NPDES requirements for discharges of storm
water. Congress amended the CWA in 1987 to require EPA to establish a two-phased NPDES
permitting approach to address storm water discharges. To implement these requirements, on
November 16, 1990 EPA published initial permit application requirements for certain categories of
storm water ..:scharges associated with industrial ac:ivity and discharges from municir arate .
storm sewer systems (MS4s) located in municipalities with a population of 100,000 01 inore. .
'storm water discharge permits will provide a mechanism for monitoring the discharge of pollutants
10 waters of the United States and for establishing source controls where needed.
The following storm, water discharges are covered under Phase I of the program:
1) A discharge which has been permitted prior to February 4, 1987';
2) Storm water discharges associated with industrial activity from 11 industrial
categories identified narratively and by Standard Industrial Classification (SIC)
codes;
3) Discharges from large MS4s (systems serving a population of 250,000 or more) and
1 EPA has established effluent guideline limitations for storm water discharges for ten
subcategories of industrial dischargers: cement manufacturing, mineral mining and processing,
feedlots, fertilizer manufacturing, petroleum refining, phosphate manufacturing, steam electric.
coal mining, ore mining and dressing, and asphalt. Most of the existing facilities in these
subcategories already have a permit which addresses storm water discharges.
FINAL
-------
medium MS4s (systems serving a population of 100,000 or more but less than 250.000)
4) Discharges which are designated by the permitting authority because the discharge
contributes to a violation of a water quality standard or is a significant polluter of
waters 6f the United States.
All other storm water discharges fall under Phase II of the program. A September 1992
Federal Register Notice '::zz issued requesting comments on what Phase II sources should be
selected as priorities, how to control sources, and when the Phase II program should be
implemented.
B. Permits for Municipal Separate1 Storm Sewer Systems (MS4)
A municipal separate storm sewer system (MS4) is defined as any conveyance or system of
conveyances that is owned or operated by a State or local government entity designed for
collecting and conveying storm water which is not part of a Publically Owned Treatment Works
(POTW). As of November 1993, approximately 790 MS4X entities have been identified as having
to apply for a permit. Nationwide, there will be approximately 265 permits to address the MS4
universe since some permits will cover more than one permittee. The regulations do not apply to
discharges from combined sewer systems or small~MS4s2 (serving a population under 100.000):
Part 2 permit applications for large MS4s were to be submitted by November 16, 1992 and
by May 17,' 1993 for medium MS4s. Permits are to be issued one year from the Part 2 permit
application date. In non-approved NPDES States, Regions process the applications. The statute
stipulates that the permits must: 1) effectively prohibit non-storm water discharges into storm
sewers; and 2) require controls to reduce the discharge of pollutants to the Maximum Extent
Practicable (MEP), including compliance with water quality standards.
MS4 permittees will also have responsibility for establishing and administering storm water
management programs to control discharges (including discharges associated with industrial
activity from regulated faculties), prohibiting illicit discharges, requiring compliance, and earning
out inspections, surveillance, and monitoring. EPA promulgated regulations on November 16.
1990 requiring MS4 permittees to submit an annual status report by the anniversary of the date of
the issuance of the permit to reflect the development of their storm water management program.
The reports will be used by the permitting authority to aid in evaluating compliance with permit
conditions and where necessary, to modify the permit to address changed conditions. The annual
report will contain at least the following information: the status of implementing the components
of the program that are established as permit conditions; ytopo td changes to the program:
revisions to the assessment of controls and fiscal analysis; summary of data, including monitoring
data, accumulated throughout the year; annual expenditures and budget for the upcoming year: a
summary describing the number and nature of enforcement actions, inspections, and public
education programs; and identification of water quality improvements or degradation.
2 Some small MS4 entities have been designated as storm water permittees either
individually or as co-permittees. .
FINAL 2
-------
C. Facility Permits for Storm Water Discharges Associated with Industrial Activity
The term 'storm water discharge associated with industrial activity' is defined as the
discharge from any conveyance which is used for collecting and conveying storm water and which
is directly related to manufacturing, processing, or raw materials storage areas at an industrial
plant. Eleven categories of facilities that have a point source storm water discharge associated
with industrial activity discharging to waters of the US must apply for coverage. (Attachment A)
The application deadline for most-permit applications was October 1, 1992. Facilities that
discharge into a small, medium, or large MS4 are considered direct dischargers and are also
required to submit signed copies of the permit application to the operator of the MS4. Discharges
of storm water to a combined sewer system or POTW are excluded.
The NPDES regulatory scheme provided three potential routes for facilities to apply for .
permit coverage for storm water discharges associated with industrial activity:
1) Individual Permit- applications for these permits are processed in the Regions for
nc" approved NPDES States;
2) Group Application- provided an alternative mechanism for groups with a sufficiently
similar discharge to apply for permit coverage; to date, 750 group applications have
been submitted to Headquarters representing 40,000 facilities in 31 industrial sectors;
a separate general permit to cover facilities in the non-approved NPDES States will be
issued by EPA.
3) General Permit- intended to initially cover the majority of storm water discharges
associated with industrial activity in non-anproved NPDES States; approximately 60.000
facilities have submitted a Notice Of Intent (NOI) to be covered under general permits
issued by NPDES States and approximately 25,000 facilities have submitted NOls to be
covered in the non-approved NPDES States; facilities submit an NOI to an EPA
contractor for processing to obtain coverage under the federal general .permit.
General permits, at a rnmimwn, require development of a storm water pollution prevention
plan (SWPPP) to reduce pollutant loadings at a facility's site and an annual compliance evaluation
of the SWPPP. Facilities were required to prepare their SWPPP by April I, 1993 and implement
it by October 1, 1993. Certain facilities are required to monitor storm water discharges semi-
annually and report annually while others are required to monitor annually but not submit a
discharge monitoring report (DMR). It is estimated that 3,800 facilities in the 12 non-approved
NPDES States and 12,000 facilities in approved NPDES States are required to monitor.
D. Facility Permits for Storm Water Discharges From Construction Sites
A subset of regulated facilities is construction sites for which a separate general permit has
been issued. The NOI requires certification that a SWPPP has been prepared for the site, and such
plan complies with approved State and/or local sediment and erosion plans or permits and/or storm
water management plans or permits.
Owner/Operators of regulated construction sites (disturbances over 5 acres) were required to
obtain coverage under an individual or general permit by October 1, 1992 where disturbances
FINAL 3
-------
commenced before October 1, 1992. For disturbances commencing after October 1, 1992. an
owner/operator is required to apply "for general permit coverage at least 48 hours prior to the san
of construction activities or 90 days prior to the start of construction activities for coverage under
an individual permit.
n. Compliance Activities and Program Priorities
A. General . .
Fundamental to the storm water program is the filing of a permit application, as failure to
do so allows a facility or MS4 entity to escape regulatory scrutiny. Therefore, the -compliance/
enforcement priorities in the early stages of the storm water programthrough FY 1994-1995-are
the identification of:
1) MS4s that have failed to submit a timely or complete Part 2 permit application (or
Part 1 application for MS4s that are designated at a future date);
2) regulated facilities that have failed to apply for a permit and are outside of the
jurisdiction of a regulated MS4, and;
3) regulated facilities that have failed to apply for a permit and are within the
jurisdiction of a regulated MS4.
" .1
Review of DMRs, SWPPPs, and other perr.i . requ:-ements for every facility is not a high-
priority activity for FY 1994 and 1995. However, there may be circumstances under which
Regions and States will want to closely monitor a facility's compliance with the storm water
permit and to take action for failure to comply with that permit. Usually, this would be a case
where non-compliance is contributing to an environmental problem.
Given the level of funding available for storm water enforcement, we will need to be
efficient and innovative in our monitoring and enforcement approaches. To that end, every effort
should be made to integrate storm water compliance activities into existing programs within and
outside of the NPDES program.
The goal for FY 1994 and again in 1995 is that each Region undertake at least one "sweep"
in each year to identify and enforce against regulated facilities that have failed to apply for a
permit. The goal of this effort is to persuade other non-filers to voluntarily submit permit
applications as well as to solve environmental problems. The Regional approach should be
described in a Storm Water Work Plan. This Storm Water Work Plan can be .incorporated in the
Strategic Plan to be submitted by each Region for FY 1994.
The Regional sweep might target high priority watersheds, geographic locations, or a
category of facilities to identify non-filers. The decision of which specific areas to target and the
type and scope of activity is left to the Regions, although some preference should be given to
addressing storm water problems hi high priority watersheds. Where all the States in a Region
have approved NPDES programs, the Region should work with at least one State to conduct a
storm water effort hi that Region.
FINAL 4
-------
As with other new programs, it is important to look for and widely publicize signature
enforcement cases in the early stages of the program. The use of a "sweep"~whether one
particular activity or combination of suggested activities-offers an excellent opportunity for
publicizing the Agency's and States' enforcement efforts in the area of storm water.
This strategy does not address the issue of data collection and maintenance. However, a
long term goal of the enforcement program will be development of an inventory of entities
regulated by the program. The Compliance information and Evaluation Branch has completed a
Draft Feasibility Study which will be sent to the Regions for review. The proposed system
solution is continued use of PCS to track the storm water inventory.
One final component of the strategy is to provide positive incentives for compliance to
compliment the enforcement program. There already exists a National Storm Water Awards
Program to recognize MS4 entities and facilities with industrial activity that are responsibly
addressing their storm water obligations. The Regions and States might consider adopting such
programs at their levels as well. In addition, .Regions and States should continue to take every
opportunity to explain the requirements of the storm water program to the regulated community.
B. Municipal Storm Sewer Systems
Part 2 applications for large MS4s were required to be submitted by November 16, 1992
and for medium MS4s by May 17, 1993. Regions should be monitoring the MS4s for compliance
with the appropriate deadline. Where the entity responsible for submission of an MS4 application
has not complied with a deadline, the Region should address this noncompliance as a top
enforcement priority in the storm water program. Regions may begin with an informal action but
should escalate to formal action if compliance is not achieved within 90 days.
To date, no MS4 permits in non-approved NPDES States have been issued. It is
anticipated that compliance monitoring of these permits will be more difficult than traditional
NPDES permits due to the newness of the storm water program in general, uniqueness of each
MS4 permittee's approach to storm water management and lack of easily evaluated quantitative
requirements of the permit. Because of these difficult implementation issues, Regional
compliance/enforcement staff are encouraged to work with the permit staff to ensure the
enforceability of the MS4'permits.
Annual reports submitted by MS4s should provide the permitting authority information on
successes, failures and extent of enforcement activities. It is recognized that some MS4s are in the
processand may be for some timeof developing the legal authority to implement a local
enforcement program for storm water discharges from facilities. Assessing compliance with MS4
permits will be left for FY 1995 and beyond. However, it is sugte .sted that where deficiencies are
identified in the annual report that will take over one year to correct, a timetable for correction be
embodied in an enforceable schedule. Discretion is left to the Regions as to whether to address
these problems in FY 1994-1995.
C. Facilities with Storm Water Discharges Associated with Industrial Activity
Outreach activities by the Headquarters Permits Division and Regions have been the,
primary method of encouraging facilities to comply with the permit application process and permit.
requirements in the non-approved NPDES States. Examples of ongoing outreach activities, in
Regions and States include: Storm Water Workshops conducted in coordination with or conducted
FINAL 5
-------
via trade organizations; Mailings of Fact Sheets, General Permit, and/or Guidance Documents
followed up with phone calls or visits to the site; and the EPA National Storm Water HOTLI^I
After the first quarter of FY 1994, compliance and enforcement staff should increase their
focus on locating regulated facilities that have failed to file a permit application/NOI and that are
outside of the jurisdiction of a regulated MS4. To the extent possible, the Regions should
integrate these efforts with other NPDES compliance activities and multi-media program
operations.
There are several information sources that can be used to develop a list of facilities that are
potentially subject to the regulations. Some sources are:
Toxics Release Inventory to identify SARA Title III facilities;
State Department of Labor databases; .
'State industrial records;
Lists of NPDES or other environmental regulatory program permittees;
Telephone books;
Municipal pretreatment records;.
Trade Association membership lists;
Job Service/Employment Service listings; and
Local authorities which issue buildings permits.
EPA Headquarters.provides a list of NQI submittals for non-approved NPDES States on a
monthly basis to the Regions and has an inclusive list of facilities that participated in the group
application process. The group application list identifies both current participants (40,000
facilities), a well as facilities that are no longer us;rig the group application mechanism (25,001
facilities). The group application list will be availaole when the general permit becomes final.
Data from the NOI list and group application list can be compared to that of a compiled list of
facilities that potentially are subject to the regulations from the above mentioned information
sources.
The Regions should consider for FY 1994 and 1995, the activities below to identify
facilities that have failed to comply with the permit application process and should publicize
compliance and enforcement actions after they have been concluded to give visibility to the storm
water enforcement program.
Mailings: If EPA has reason to believe that a regulated facility has failed to apply for a permit.
(for example, a regulated industry's name does not appear on any permit application list) a Section
308 letter can be sent to the facility along with a Fact Sheet and NOI/permit application. The
letter should state that the permit application be filled out by a date certain if the regulations
apply.3 If a facility responds indicating that there is no point source discharge and therefore not
3 A Section 308 letter requesting that more than nine addressees nationwide fill out
anything other than a NOI/permit application form may require approval from OMB per
requirements of the Paperwork Reduction Act (PRA). For example, EPA cannot request a
'certification of non-applicability' from more that nine addressees nationwide. These
FINAL 6
-------
subject to the regulations, that information should be confirmed at a later date in a site inspection.
'
Judicial Case Review: Municipal4 and non-municipal judicial cases that are active or are being
developed for non-storm water NPDES violations-should be-reviewed to determine whether or not
the facility needs a NPDES permit for storm water discharges and if so, whether or not a permit
application has been submitted. If it is determined that the facility failed to file an application then
the complaint can be "amended to-include 'failure to apply for a permit' or 'discharge without a ..
permit'. The decision to amend the existing complaint or issue a separate AO requiring
compliance or APO should be made on a case-by-case basis. However, considering these facilities
are familiar with EPA regulatory programs, amending an existing complaint may be appropriate
action.
Telephone Canvassing: Phone calls to facilities potentially subject to the regulations explaining
the storm water program with questions to determine inclusion in the program or as a follow-up to
a mailing strategy can be made5. Informatic.. request letters can then be sent based on the
facility's response.
Field Inspections: For purposes of identifying facilities that have failed to apply for a storm water
permit, Regions may choose to focus their inspection activity within watersheds, or in areas with
water quality-related problems due in part to storm water sources. If a facility has applied for a
permit, the inspector should request to see the SWPPP to verify its existence and implementation.
NPDES compliance inspections/Mnlti-media inspections: To the extent possible, NPDES
inspectors or inspectors from other media should replete a storm water screening checklist while
in the field to verify whether the facility is covered oy storm water requirements. The storm water
restrictions do not apply if the PRA enforcement exception applies. Also, the OMB control
number for NPDES permit applications is 2040-0086 (expiration date August 31, 1995) and
should be displayed on Section 308 letters requesting submittal of a storm water permit
application.
4 Category (ix) of facilities which must submit applications for storm water permits:
Tr^mem works treating domestic sewage or any other sewage sludge or wastewater treatment
device or system, used in the storage, treatment, recycling, and reclamation of municipal or
domestic sewage, including lands dedicated to the disposal of sewage sludge that are located
within the confines of the facility, wi> a design flow of 1 MGD or more, or required to have
an approved pretreatment program under 40 CFR Part 403. Not included are farm lands,
domestic gardens, or lands used for sludge management where sludge is beneficially reused and
which are not physically located in the confines of the facility, or areas that are in compliance
with Section 405 of the CWA.
5 Telephone surveys are subject to the same OMB/PRA approval as Section 308 letters.
Questions requiring more than nine surveyees nationwide provide more information than what
is necessary to fill out an NOI/permit application may require approval.
FINAL 7
-------
checklist in the multi-media screening inspections can be used for this purpose. NPDES program
staff may conduct an in-depth storm water evaluation while they are at the facility for other
purposes.
Routine Enforcement Contact: When meeting with a facility for other enforcement issues.
Compliance Officers can inquire as to the status of the facility's compliance with the storm water
regulations. A field inspector can-make inquiries without going through a detailed checklist of the
need for a permit or compliance with the permit. If it is determined that a facility should obtain
storm water coverage or is not complying with a permit (for example, the facility has not
.developed a SWPPP) enforcement should proceed on a case-by-case basis. .
*
Municipal Coordination: The Part 1 permit application required an MS4 entity to provide the
location and NPDES permit number of any known discharge to the storm sewer system (40 CFR
122.26.d.l.iii.B.(4)). Also, the Part 2 permit application required an MS4 entity to provide an
inventory, oiganized by v?*«"-.hed, of the name, address and description (such .as SIC code) of the
principal products or services provided by each facility which may discharge storm water
associated with industrial activity to the system (40 CFR 122.26.d.2.ii).
All facilities with discharges of storm water associated with industrial activity through an
MS4 will be subject to local ordinances implementing management programs,, as well as to the
terms of a federal permit. The list of facilities discharging into an MS4 can be matched with a list
of NOIs/permit applications received to verify compliance with the application process. Although
the MS4 entity does not have authority to enforce the federal permit application requirements or a
federal permit, compliance and enforcement activities of the local program will be done by the
MS4 entity. However, it should be noted that the MS4 entity may not be able to enforce its ov||
program for some time because it presently lacks necessary local legal authority orin the case of
medium size municipalitiesthe permit will not be effective until May 17, 1994.
An MS4 entity can refer a case of a facility that has failed to apply for a federal permit or
suspected non-compliance with a federal permit to EPA. Although compliance and enforcement
efforts for this group of facilities is not top priority, the Region may want to include them for
targeted activities but, should coordinate activities with the municipality to avoid duplication of
efforts.
D. Construction Sites
The construction industry in general is regulated at the State and local level. A May 1990
Survey by the Maryland Department of Environmental Resources (Attachment B) indicates that
tnirtee.i States have mandatory sediment/erosion control programs or storm water management
programs, two States have programs for portions of the State, and an additional nine States have
developed guidance for local government use. Most large municipalities, which will eventually
include all medium and large MS4s, have some type of sediment/erosion and storm water control
program. The general approach, then, for construction sites will be to defer to local or State
agenc'^s where there are effective and equivalent programs in place.
Generally, construction sites are highly visible, capital intensive operations that have a high
potential for environmental degradation. Because of their high visibility, citizen complaints can be
expected more than with other types of industrial activities and are useful as a source for
FINAL 8
-------
identifying potential violators. Regions should either refer complaints to local programs or follow
up directly. Where State or effective local programs do not exist. Regions should prioritize
unpermitted construction sites the same way as other regulated facilities. Again, failure to comply
with permit requirements should be addressed at the Regions' discretion* during FY 1994-1995.
Enforcement Approach
A. Establishment of a Violation
Two criteria must be met for a facility to be subject to the storm water regulations:
1) the industrial activity at a facility must be described (usually by SIC code) in'40 CFR 122.26 of
the regulations; and 2) the facility must have a point source discharge to waters of the United
States either directly or through a separate storm sewer system. The question of whether a storm
water discharge must be observed by an inspector to determine inclusion in the program has been
raised. The Office of Enforcement has advised that a facility's inclusion in the program is not
dependant on whether a discharge from a point source has been observed. Section 502 of the
CWA defines any point source to be 'any discernable, confined, and discrete conveyance ....
from which pollutants are or may be discharged'. Therefore, an actual 'discharge need not be
observed but there must be evidence of some conveyance for pollutants when a storm event
occurs.
A second question frequently raised is: How to cite 'failure to'apply for a permit' as a
violation? Section 308 of the CWA requires an owner/operator of a point source to 'make such
reports or provide such information' the administrator requires to carry out Section 402 or any
requirement established under Section 402. The permit application regulations were promulgated
pursuant to both Sections 308 and 402 and thus the permit application is considered information
required to implement Section 402 of the Clean Water Act. Since the permit application
regulations have been published in the November 16, 1990 Federal Register, any regulated facility
that failed to submit a permit application is automatically in violation of Section 308. Wording of
any notice of violation, AOr or APO should therefore cite 'failure to apply for a permit' as a
violation of Section 308.
As an alternative to a violation of Section 308, a facility can be in violation of Section 301
for 'discharge without a permit' providing there is evidence of a conveyance for pollutants from
the industrial activity areas of the facility and an actual discharge (i.e., a precipitation event
causing » disch?*~e) has occurred.
B. Overall Strategy
As indicated earlier in this strategy, the enforcement priorities for the storm water program
for FY 1994 and 1995 are to address MS4s that have not applied for a storm water permit on a
timely basis, and to identify and enforce, as necessary, where facilities with industrial activity have
failed to apply for a permitwith priority given to facilities outside the jurisdiction of a regulated
MS4. The level of activity with regard to the assessment of compliance with existing permits will
be left to the discretion of the Region.
As a strategy for addressing industrial facilities which have failed to apply for a permit as
required, each Region is asked to undertake some activity annually in 1994 and again in 1995.
FINAL 9
-------
The purpose of any activity is twofoldto address environmental problems and to serve as a
vehicle for publicizing EPA's commitment to enforcing storm water requirements, thus creating a
deterrent to noncompliance. The design and scope of activities is left to the discretion of the
Region. It could be organized on a watershed basis or it might address a category of facilities
which is of concern. Whatever the design, it should be significant enough to serve as a vehicl
publicizing Regional activity in the storm water area through such means as a press release, press
briefing, trade press publications or other means the Region may choose.
As a general rule, the Enforcement Management System establishes the principle of
escalation of enforcement response for continuing, uncorrected noncompliance. This storm water
strategy, in fact, recommends beginning with informal enforcement and escalating the severity of
the response when an MS4 entity fails to submit complete permit applications on a timely basis.
However, because of the limited, resources available to address regulated facilities, one of the
principles on which this strategy is built is that the maximum possible deterrent-effect be achieved
with any single enforcement action. For that reason, this strategy recommends, but does not
require, the use of penalties as a sanction when a facility has failed to apply for a permit. Of
course, any enforcement action that is initiated should take into account the circumstances
surrounding the violation, for equitable treatment of violators. During this initial phase of the
siorm water enforcement program, when any facility submits a permit application voluntarily,
without having EPA invest resources to find the facility, the Regions may choose to forego or
reduce penalties on a case-by-case basis, thereby providing an incentive to other facilities to
comply with permit application requirements.
G. Expedited APOs
Field citations6 are currently being utilized by other environmental programs on the
Federal, State, and local levels and are useful in addressing many prevalent, clear-cut violations
that are relatively easy .to correct. While the Water Program does not currently have field citation
authority, the basic administrative compliance and penalty order authorities can be used in more
efficient ways.
There are several ways to make the APO more efficient-to expedite the APO:
1) issue APO* for facilities with the same violation at approximately the same time so that a single
30-day public notice can be used7; 2) issue a complaint and a proposed consent order at the same
time; and 3) standardize penalty amounts to be assessed, based on the economic benefit for
'failure to submit a permit application', to avoid recalculation for each facility8. Existing
II ' . .. . ' . . .
6 'Field citation' as used in .this strategy is an APO issued in the field unencumbered by a 30-day
public notice period. For this strategy, the term 'Expedited APO' will be used. Reauthorization of
the CWA may include Field Citation authority.
7 When the administrative penalty complaint is first issued, an administrative record should be
simultaneously opened at the Regional Office pursuant to proposed 40 CFR Section 28.16.
8 Headquarters may develop a matrix which could be used to determine the economic benefit and
gravity component of the penalty using a small, medium, and large facility. In the interim, no
FINAL 10
-------
delegations of authority limit the issuance of APOs to the Branch Chief level. As a result.
inspectors cannot be authorized to issue APOs until that delegation is changed. There are,
however, other ways to speed up the APO and AO issuance process. These might include: faxing
of violation paperwork to the office by the inspector for required signatures or phoning-in of
violations by inspectors for immediate penalty issuance from the office. A combination of one or
more of the above approaches should result in a less resource intensive, more efficient penalty
issuance process.
Attached for your information is a copy of a public notice used by one Region to cover
multiple violating facilities, as well as the simultaneous issuance of a complaint and a proposed
consent decree. .(Attachment C) A letter to the complainant would specify that the consent order
will become final after signature by both parties without further agency action, if no public
comments are received. The letter would explain the administrative process, the requirement to .
publish the proposed order for public comment, and the respondent's right within 30 days to either
return the signed consent order with payment or request a hearing.
If the respondent agrees to pay the penalty and submits a check before the consent order
can be signed by EPA, EPA can hold the respondent's penalty payment check. Where not
prohibited by state law, the check should be postdated to 45 days after the date of issuance of the
complaint to allow time for publication of the public notice requesting comments within 30 days.
If no public comments are received, the proposed order would become final after agency signature
and EPA would procesr the penalty payment. If comments are received, the Regional
Administrator or designee would follow established Agency procedures for resolving public
comments. If the respondent chooses to contest the initial complaint, EPA would adjudicate the
matter under the hearing procedures.
IV. Allocation of Responsibilities
The list below provides a summary of ongoing and future activities to implement this
strategy.
Headquarters Permits Division ,
Continue Storm Water HOTLINE
Continue monthly update of NOI submissions to the Regions (ongoing)
Provide Regions a list of group applicants, current as well as original participants (upon final
277-"val of the general permit)
Headquarters Enforcement Support Branch
Update the storm water component of NPDES inspector guidance and training (ongoing)
Develop guidance on storm water data elements and reporting requirements for Regions and
States (mid FY 1994)
settlement should normally .be less than $500 for failure to submit an application and the proposed
assessment should routinely be $1000 or more, taking into account economic benefit and gravity.
FINAL 11
-------
Act as a clearinghouse for success/failure of approaches; to enforcement/compliance issues of
the storm water program (ongoing)
Pursue streamlining efforts of the APO process such as delegation of authority below DD
level
t *
Headquarters Compliance Information Branch
Finalize the Storm Water Feasibility Study Mission Needs Analysis to develop a storm water
tracking system (mid FY 1994)
Regions . .
Continue outreach efforts .
Review MS4 Permits for enforceability
Follow-up on late or incomplete MS4 permit applications
Investigate local programs that manage storm water discharges from construction sites
Undertake one sweep hi FY 1994 and again '" FY 1995 to identify regulated facilities that have
failed to apply for a permit
FINAL 12
-------
ATTACHMENT
8tat«
Rhode Island
South
Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Btmtm
Program?
No
No
No
No
No
No
No .
No, SW
Yes, SC
No
No
No
No
Comment:*
Has optional state SC program. Has no
guidance.
Has optional state SC program. Has no
state SW program, but has issued SW manual for
state SW program.
No state SW/SC programs..
«
Some local governments have SC nrograms. State awaiting EPA regulation 'revision to
strengthen SW program.
State provides legislation to >rm Conservation Districts to handle SC concerns.
No state SW/SC programs.
Has optional state SW/SC programs.
Has statewide SC program, implemented
The state SW program is optional for
projects.
Has state SW/SC program for the Puget
legislation after 1991.
I
ry Department of Conservation and Recreation.
local governments but mandatory for state
Sound area. Aiming for statewide SW/SC
Has optional state SC program. Some local governments have own SW program. State is
seeking mandatory SC legislation .
Has optional state SW/SC programs.
No state SW/SC programs.
-------
AIIACHMEM
LOCATZOK8 OF ALLEGBt* VZOLATZOVlt
BUSZXZ8S Oil ACTZTZTY Or RBSPOHDEMT8J WASTBlATEft TUATKBVT
RBSPOKDWT8' PBRXIT VUMBBBSS
HATUKB OF ALLBQ1D TZOXATZOVSI TXXLUM TO SUBMIT A COMtLlTB
DZ0CEXAQB MOHZTORZ1W R1PORT-QUXLZTY
Asauwowa UPORT TO BML
PROrOSZD PZHXLTTI 10,000
DOCXST VQMBIMt ZPA-CW>-ZZ-f3-lOt, U«, 118, 125, 12«, 127, 132,
134
DAT! FZLBD WZTI MOZOHAL BEAXXV9 CLIUl t1
KXKB, MXZLZMa &DDBSS8, AMD TIL8PHOV1 VmaBU OF 1COZOAL EZJAZIM
CL1RXS
101 VUETBBft ZXrO&iOLTZOKl FIBSOVB WZ0HZJM TO UCiZTB A COPY
\
or rAxT at, HBVZIW TBB COMPLAZHT OK om* Docuxrvri rzzxo BY THB
PXRTII8 ZM THZ8 PROCZBDI1W, COKMEMT OPO» III PROPO8BO VBHALTT
XS8B88JCBVT, OE VAATZCZPATB ZV AVY BZJJtZKa THAT HAY 11 OLD/
SHOULD CONTACT TBB R1OZOHAL HZXRIMQ CUUt ZDBVTZrZBD ABOVI.
-------
UNITED fTATli SjrVIROHMEVTAL PROTBCTXOM AGENCY ATTACKMENT C
DATE OF MOTXCErL
PUBLIC NOTICE VUMBBRl [.
COMMENT PERIOD OP8V UNTILI r
ACTXOVI VOTXCB OF PROPOSED ASSESSMENT Of CLEAN WATER ACT BBCTXOV
309 (0) CLASS Z ADMXVX8TRATXVB PBIOLLTY AMD OPPORTTWXTT TO COWOVt
VJL X8 AUTHORiaiD UVDIR 0EOTXOV 109(0) Of TO CL1AV WXT12
ACT, S3 V.f.C. 11319 (0), TO A88B8S A CIVXt P1MALTY JL7TIX
VROVXDXHO TEE PEWOM tUBJECT TO TIE PEKXLTY IIOTXCE OF TIB
PROPOSED PBKXLTY AJID THE OPPORTUKXTY FOR A EEARIUO, AID JLTTBR
PROVXDXMO ZMTERE8TED fERBOVS PUBLIC BOTXCB 07 TEE PROPOSED
PBHXZAY AMD A REASOMABLE OPPORTUVXTY TO COMJCEMT OM ZT8 Z88UAVCB.
UKDER 8BCTXOM 309 (0) , AVY PERSOH WHO WITHOUT AUTBORXBATXOy
DXSCBARfiE* A POXAOTAMT TO A MAVXQABU WATBR, AB THOSE TERMB ARE
DE7XMBD XM 0BCTXOM 902 OP TEE ACT, 39 U.S.C. I13C2/ MAY BB
ADHXKX8TRATXTELY A88B88ED A CIVIL PENALTY OF UP TO $25,000 BY
EPA. "SLABS 7 PROC8BDXMOB FOR SECTXOM 309(0'. OF T3B CLBAM WATBR
ACT ARE COMDUCTED XM ACCORDANCE WITH TEE MCOM8OLXDATED RULES OF
PRACTXCB OOVBRKXMa TEX ADNXMXSTRATX7B ASSESSMENT OF CLAflS X CIVIL
PENALTIES UNDER TEB CLEAN WATER ACT** (**PAR9 2tM) , WHICH MAS BEEN
PUBLISHED XV TEE FEDERAL REGISTER, AT S« FED. Rlfl. 29.99C
(JULY 1, 1991). TEE FEDERAL REGISTER IS AVAILABLE AT MOST LIBRARIES.
-------
VI.M.2.
"Policy for End of Moratorium for Storm Water Permitting",
October 18, 1994.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT 18199V
MEMORANDUM
SUBJECT: . Policy for End of Moratorium for -Storm Water
Permitting--October 1, 1994
£
FROM: Y Michael B. Cook, Director
Office' of Was.tewater Mariagemen
Robert Van 'Heuvelen, Director
Office of Regulatory Enforcement
TO: Water Management Division Directors, Regions -I - X
NPDES'State Water Program Directors
. "Section 402 (p) (1) of the Clean Water Act (CWA) provides that
National Pollutant Discharge Elimination System (NPDES) permits
cannot be required for discharges composed entirely of storm
water prior to October 1, 1994, except for discharges identified
in Section 402 (p) (2) of the Act. The purpose of this memorandum
is to provide guidance from the Environmental Protection .Agency
(EPA or Agency) with respect to permit application requirements
for these discharges after October 1, 1994.
Background
In 1972, the Federal Water-Pollution Control Act (later
known as the Clean Water Act or CWA) , was amended to provide that
a point .source discharge of pollutants to waters of the United
States is unlawful except as authorized by a NPDES permit. The
1987 amendments to the CWA provides three exemptions from this
permit requirement for certain discharges composed entirely of
storm water, two of which are permanent, and one of which was
temporary- Section 402(1) (2) of the CWA provides that the EPA
shall not 'require a permit for discharges of storm water runoff
from mining operations or oil and gas exploration,' production,
processing, or treatment operations or transmission facilities if
the storm water discharge is -not contaminated by contact with, or
does not come into contact with, any overburden, raw material,
intermediate product,, finished product, byproduct, or waste
product located on the site of such operations.1 Section
1 See 40 CFR 122.26(a) (2) for implementing regulations.
-------
502(14) of the. CWA excludes, agricultural storm water discharges
from the definition of point'source, thereby excluding these
discharges from the requirement to be authorized by an NPDES
permit.2
Section 402 (p) (1) of the CWA.provides that EPA or NPDES
States cannot require a permit for discharges composed entirely
,of storm water prior to October 1, 1994,3 except for discharges
identified in Section 402(p) (2).of the Act. Section 402.(p) (2)
identifies five classes of discharges composed entirely, of storm
water which were exempt from the moratorium on NPDES permits.4 '
This constitutes phase I of 'the storm water program':
(A) A discharge with respect to which has been issued a permit
prior to February 4, 1987;
(B) A discharge associated with industrial activity;
(C) A discharge from a municipal separate storm sewer system
(MS4) serving a population of 250,000 or more;
(D)- A discharge from a municipal separate .storm sewer system
(MS4) serving a population of 100,000 or more, but less than
^50,000; and . , .
(E) A discharge for which the Administrator or the State
determines that the storm water discharge contributes to a
violation of a water quality standard or is a significant
contributor of pollutants .to. this waters of the United
States. ...
Section 402 (p) (6) of the CWA requires .that EPA, in
consultation with.State and local officials, is to issue
regulations by ho later than October 1, 1993,5 which designate
additional storm water discharges not identified in Section
402(p) (2) of the CWA to be regulated to protect water quality and
.establish a comprehensive program to regulate such designated'
2 See 40 CFR 122.2 for implementing regulations.
3 The .1987 amendments to the CWA provided that permits for
affected storm water sources could not be required prior to
October 1, 1992. The moratorium deadline was extended to
October 1, 1994, by the Water Resources Development Act of 1992.
4 See 40 CFR 122.26 (a) (1) for implementing regulations.
5 The 1387 amendments, to the CWA provided that EPA
must issue regulations under Section 402(p)v(6) of the CWA by
October 1, 1992. This deadline was extended to October 1, 1993,
by the Water Resources Development Act of 1992.
-------
sources. This constitutes phase II of the storm water program.
EPA has not issued these regulations at this time.
Several legislative proposals were introduced in Congress to
amend, certain.provisions of the CWA, including NPDES requirements
for storm water discharges. .All major proposals would either
eliminate the statutory requirement at Section 402 (p)-(6) to
establish NPDES regulations for discharges composed entirely of
storm water previously in the permit moratorium (discharges not
identified in Section 402 (p) (2))., and would identify which :
moratorium storm water discharges, if any, would be subject to
the NPDES program, or would give EPA additional time to identify
those discharges subject to permit requirements. Congress'did
not act on reauthorization of the CWA this session, so none of
the comprehensive amendments to the storm water section of the
law were adopted. - .
Clarification of Requirements
EPA did not issue regulations for implementing the
requirements of Section 402(p)(6)- of the CWA before October 1,
1994. However, the Agency and approved NPDES States are unable
to waj-ve the statutory requirement that point source discharges
of poT.lutant's to waters of the United States need an NPDES
permit..
. At this.time, .EPA has completed a draft study identifying
potential point source discharges of storm water for regulatory
consideration under the requirements of Section. 402 (p) 06) of the
CWA. In addition, the Agency has initiated a process to develop
implementing regulations. .
General, application requirements for the NPDES program are .
contained in 40 CFR 122.21 (f). As noted above, however, a
process is underway to develop more specific requirements
relating to storm water dischargers covered by section 402(p)(6).
Development of more focussed application requirements will be
part of this effort. EPA plans to-develop these requirements
through the rulemaking process and will seek comment and public
input before'issuing final regulations.
Dischargers previously covered by the moratorium should .
note that under EPA's Storm Water Enforcement Strategy (dated
January 12, 1994) the Agency'.s compliance/enforcement priorities
in the early stages of the storm water program, through FY 1995,
will be the .identification of and appropriate compliance and
enforcement action on: .
1. Phase I MS4s that have failed to s,ubmit a timely or
complete permit, application;
-------
2. Regulated phase I storm water discharges associated with
industrial activity that" have failed to apply for a permit
and are outside of the jurisdictional boundaries of a
regulated phase I MS4; and . / . "
3. Regulated phase I storm water discharges associated.with
industrial activity that have failed to apply for a permit
and are within the jurisdictional boundaries of a regulated
.phase I MS4 . .
The Agency" does recognize that under the CWA, citizen suits
can be brought against operators of phase II point source
discharges composed entirely of storm water to waters of the U.S.
that are not authorized by an NPDES permit after October 1, 1994.
If you have any questions, please contact Cynthia Dougherty,
Director, Permits Division, at (202) 260-9545, or have your staff
contact William Swietlik, Chief, Storm Water Section, at
(202) 260-9529.
cc: Susan G. Lepow
-------
TAB VI.N
-------
VI.N.I.
"Water Quality Strategy for Animal Feeding Operations"
February 18, 1994.
-------
x UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON, D.C. 20460
FB18B84
MEMORANDUM OFRCEOF
WATER
SUBJECT: Water Quality Strategy for Animal Feeding Operations
FROM: Robert Perciasepe
Assistant Administrator
TO: Regional Water Management Division Directors
State Water Program Directors
Attached is the Water Quality Strategy for Animal Feeding Operations. This document was
developed by an EPA/State feedlot workgroup which has worked together on feed lot issues
since April 1992. the Strategy was transmitted to you on September 29/1993, by Michael
Cook, Director, Office of Wastewater Enforcement and Compliance, for your review and
comments. Your comments were very helpful and have been incorporated .into the strategy
where possible.
The Regions and Headquarters should immediately begin implementing the Strategy, whrch
includes permitting, verification of compliance, and education and outreach efforts. This
Strategy is designed to be easily integrated into other strategies or initiatives (e.g., the
Watershed Initiative or Storm Water Initiative) as part of the NPDES program and should not
be disruptive of ongoing activities. The Regions should work with States to incorporate
Strategy activities into State Plans.
The Strategy's initial emphasis is on: 1) issuing general or individual permits to concentrated
animal feeding operations (CAFOs) contributing to water quality/impairments, including
smaller facilities that merit designation as CAFOs; 2) enforcing existing CAFO permits,
especially where CAFO discharges cause or contribute to water quality impairment; and 3)
expanding educational efforts to explain regulatory requirements to the animal management
community.
The Guidance Manual on NPDES Regulations for Concentrated Animal Feeding Operations ..
(also transmitted to you in draft form on September 29) will be distributed at a later date.
Comments sent by the Regions and States were generally favorable. At present, the Guidance
is being reviewed by several national animal producers' associations and public interest
groups. The Guidance is designed to provide all interested parties a clear and common
understanding of the NPDES regulations for CAFOs.
Attachment
-------
WATER QUALITY STRATEGY FOR ANIMAL FEEDING
OPERATIONS
December 1993
I. Summary
The goat of this strategy is to achieve greater protection of water resources
through promoting, encouraging and requiring sound environmental management and
practices in the animal feeding operation (AFO or feedlot) community. Although this
strategy was developed for use by EPA Regfons, States may want to adopt a similar
approach when developing strategies for feedlots.
The strategy is based on: 1) promoting sound environmental management at
all livestock feeding operations; 2) improving data quality; 3) maximizing impact
through targeting activities; 4) establishing a'greater field presence; and 5) evaluating
what works.' The Agency intends to include other federal agencies, State agencies,
producer associations, and citizens in compliance evaluation and communication
activities.
The strategy includes background information on the National Pollutant
Discharge Elimination System (NPDES) regulatory program for concentrated animal
feeding operations (CAFOs) and it briefly describes the EPA/State Feedlot Workgroup
which developed this strategy. Most importantly, the strategy includes three major
thrusts: permitting, compliance evaluation, and public outreach and education.
'i he key milestones for implementing this strategy are: FY1994 improve data
quality, develop a compliance evaluation targeting strategy, develop a communications
strategy, enforce existing individual and general permits especially where CAFOs
cause or significantly contribute to water quality impairment; FY 1995 continue work of
FY 1994, envelop State Plans to issue general or individual permits for critical
watersheds, conduct compliance evaluations in a targeted watershed.
II. Background
The 1972 Amendments to the Federal Water Pollution Control Act (also known as
the Clean Water Act (CWA)), prohibit the discharge of pollutants from a point source into
waters of the United States except in compliance with conditions of an NPDES permit:
Section 502 of the Act defined a "concentrated animal feeding operation" (CAFO) as a
point source. As a result, NPDES regulations at 40 CFR 122.23 and Appendix B were
promulgated which provide that. CAFOs are feedlots that discharge at times other than
the event of a 25-year, 24-hour rainfall and: 1) feed or maintain more than 1,000 animal
units (AUs); 2) feed or maintain 301 to 1,000 animal units and discharge into waters of
the United States through a man-made conveyance or by direct contact between the
facility and a water of the U.S.; or 3) are designated on a case-by-case basis as a
significant contributor of pollution.
-------
Water Quality Strategy tor Animal Feeding Operations December
In 1974, effluent limitations guidelines for CAFOs having more than 1,000 AUs
were promulgated at 40 CFR 412. The guidelines require that there be no discharge
except as a result of chronic or catastrophic rainfall which causes overflow of a facility
designed, constructed, and operated to hold all process generated wastewater plus the
runoff from a 25-year, 24-hour rainfall. These limitations are based on the best
available technology economically achievable (BAT). There are no effluent limitation
guidelines for CAFOs having 1,000 or less AUs.
A number of NPOES permits were initially issued by EPA to feedlots during the
mid 1970s, and permits for CAFOs having more than .1,000 AUs were .emphasized. In
EPA Regions 6,7, and 8 (where most commercial beef feeder facilities are located), site
inspections were conducted by EPA and the States at many feedlots to develop facility-
specific requirements placed in individual NPDES permits. Most .individual permits
issued during this period were classified as "minor permits when compared to other
permits issued to municipalities and industrial sources. Several EPA Regions (6,8,9,
and 10) have issued general permits which are estimated to cover over 1,400 feedlots
in seven States (Arizona, Idaho, Louisiana, Oklahoma, New Mexico, South Dakota, and
Texas).
III. Feedlot Workgroup
A. Purposa of the Faadlot Workgroup
After reviewing information from various sources which identified livestock
feeding facilities as significant sources of water quality impairment, the Director of the
Office of Wastewater Enforcement and Compliance (OWEC) convened an EPA/State
Feedlot Workgroup. The charge to the Workgroup was to evaluate in more detail the
impacts and relative priority of feedlots in different parts of the country relative to other
sources of pollution and determine what has been done and what remains to be done
under the NPDES program to address this category of point sources.
Four subgroups were created from the Feedlot Workgroup membership in order
to examine the following feedlot issues: 1) identification of the magnitude and
geographic extent of water pollution caused by animal waste; 2) examination of
methods to verify compliance of CAFOs; 3) examination of how to improve permit
coverage of CAFOs, including guidance on the regulatory requirements concerning
feedlots; and 4) methods to promote compliance and environmental excellence in the
feedlot industry.
B. General Findings' of Workgroup Studies
Several important findings emerged from the subgroups' studies (these studies
are included in The Report of the EPA/State Feedlot Workgroup, which was published
by the Office of Wastewater Enforcement and Compliance in September 1993). Data
indicate that animal waste impairs surface water uses at approximately the same level
-------
W*te 'itv Strategy for Animal reeding Operations Q^pm^r tffff(?
as ot*f significant sources of water pollution such as storm sewers/runoff or combi*
sev. verflc v Animal waste has also caused serious impairment of some ground-
wat ;sourc Even though feedlots cause a significant number of water quality
imp, ents, i . workgroup found that only a fraction of CAFOs are covered by NPDES
permits, and far fewer receive compliance inspections. The Workgroup also found that
the feedlpt industry is distinguished from other industries in the level of cooperation
among producers and the extensive communication networks that presently exist For
V , reas . Itisbi ved tM education and outreach activities on the part of EPA and
tt State would be especially fruitful in attaining greater compliance.
C. Common Themaa
The f eedlot subgroups noticed common themes as they completed the analysis
phase of their work. One theme was the need to improve the amount and quality of data
concerning feedlots. Another was the need for targeting to: 1) focus permitting,
c ipliance and enforcement resources where they will achieve the greatest
er . ironmental benefit and 2) reach distinct segments of the feedtot industry with
education and outreach activities. The Workgroup recognizes the need to target ground
water and/or surface water resources to protect high quality waters as well as remediate
impaired watersheds. For the purposes of this strategy, priority or critical watersheds
should be determined consistent with an<: in support of Agency initiatives for protection
of human health, ground or surface waters that are drinking water sources, and
ecosystems (i.e., watershed protection).
EPA and State permitting agencies should coordinate their NPOES activities wit. ,
the animal waste mar jement activities of other federal. State, and local programs.
Programs which shou be considered for coordination include those developed under
trv Coastal Zone Act Reauthorizatiorrand Amendments (CZARA), the section 319
Nonpoint Source Pollution Control Management Program. Comprehensive State.
Ground Water "-election Programs, W?'fhead Protection Program, the United States
Department o! jriculture's (USDA's) Agricultural Conservation Program and Water
Quality Incentives Program, and State and local regulatory and financial incentive
programs. .
IV. Permitting Strategy
The Office of Wastewater Enforcement and Compliance paradigm for all point
sources consists of a two step process that H *iudes: A) focusing resources towards
regulating point sources in those watersheds where environmental impacts on
ecological and human health-are the greatest and 6) NPDES permit coverage of all
CAFOs. To this end, the Agency has developed a cost effective yet environmentally
protective NPDES permitting strategy for regulating CAFOs. This strategy recognizes
tt t permitting authorities have tittle if any resources for starting new initiatives, and
f vjses controls on CAFOs in high priority watersheds. Many of the ideas expressedJn
this strategy are based on State and EPA Regional input provided in Feedtot Case
-------
Water Quality Strategy for Animal Feeding Operations
Studies of Selected States (published as a section of The Report of the EPA/State
Feedlot Workgroup (EPA, September 1993)).
A. Targeting Critical Watersheds
By October 1 995, EPA will work with the States in the development of State
Plans to ensure that those plans include a schedule for permit coverage of CAFOs
contributing to water quality impairment in critical watersheds. Permit coverage can be
obtained through the issuance of individual or general permits.
1, NPDES Guidance on CAFOs. To assist EPA Regions and approved
States in understanding the applicability of NPOES regulations when permitting
CAFOs, a guidance document on the NPOES feedlots regulations, Guidance Manual
on NPDES Regulation for Concentrated Animal Feeding Operations (the Guidance
Manual), has been developed for the permit writer. The Guidance Manual guides the
permit writer through:
Determining when an AFO becomes a CAFO
Defines what is meant by the 25-year, 24-hour storm event and
when to apply the exemption for feedlots which discharge only in
the event of a 25-year, 24-hour storm event
Defines a "manmade conveyance" and how it may be interpreted by
permitting authorities
Making case-by-case designations of CAFOs
. Explains the lack of liability under the NPDES program for water
quality impairments on the part of animal feeding operations not
meeting the definition of a CAFO not designated as one
Defines how. other animals (other than those animals listed in
40 CFR 122 Appendix B) may be regulated under the existing
regulations
Establishing appropriate permit conditions
2. Case-Specific CAFO Designations. For case-by-case designations of
CAFOs, the permitting authority may use an inspection form similar to the sample form
provided in Appendix B.of the Guidance Manual when conducting cm-site inspections.
The sample form focuses on waste handling, treatment and/or management operations
information, discharge information, and water quality assessment data. In considering
AFOs for designation as CAFOs, the permitting authority should consider AFOs:
In critical watersheds
-------
Water Quality Strategy for Animal Ceding Operations December
In watersheds having high AFO and/or CAFO density
Based on proximity to waters of the United States or proximity to waters
with known or suspected impairments
Based on the amount of animal waste reaching waters of the U.S.
That were established before implementation of existing
Federal/State/local waste handling statutes or development of newer
waste handling technologies
That have received substantiated citizen br local government complaints
regarding surface and/or ground-water pollution
B. NPD. 1 Coverage of All CAFOa
To implement the second step of ti permitting process, EPA will work with the
States to ensure that all CAFOs are coverc-d by an individual or general NPDES permit.
To assist in this effort, a model CAFO fact sheet/permit has been developed.
V. Compliance Evaluation Strategy
A. Data Management
Before any meaningful compliance monitoring effort is undertaken, the quality
and amount of fee< ' data entered in the Permit Compliance System (PCS) needs to
be improved. At a ....nimum, all permitted CAFOs should be identified by June 1,1994.
and their required data elements.'.entered into PCS by Octcoer 1,1994, to allow
tracking of permitting, inspection, and compliance information.
In order to develop further and refine a' compliance monitoring strategy,
monitoring and assessment data must be improved. Available sources of water quality
and compliance data should be inventoried and accessed.
At present, water quality inventories prepared under the mandate of
section 305(b) of the CWA may be the best available data source. To
improve the utility of the water quality data compiled under the section
Required data elements include Water Enforcement National Data Base (WEND8) data
elements including permit facility data, permit event data, inspection data, and significant
compliance data. Regions and States may choose to enter additional PCS data pertinent to the
CAFO category, including receiving waters, code of Federal Regulations (to indicate whether th
CAFO is subject to effluent guideline limitations), and enforcement action data including penalty
amounts and dates assessed
5
-------
Water Quality Strategy for Animal Feeding Operations ; December
305(b) report, it will be recommended that the guidance for the next report
request more specific data on feedlot impacts.
Water quality assessment data in the Office of Water (OW) Waterbody
System (WBS) should be inventoried to target water quality-limited areas
with feedlot problems in the States that are now using WBS.
The likelihood that an area has a manure nutrient surplus can be derived using
USOA or Department of Commerce (via the Census of Agriculture) data The areas can
be .ranked by the inventory o1 animals and other risk factors, targeting as many as
resources allow. These areas should then be matched with or superimposed on the
waterbody problem areas. In the future, the WBS will incorporate geo-reference data so
that the WBS can then be used in Geographic Information System (CIS) applications.
B. Annual Report
While CAFQs have not routinely been required to submit discharge monitoring
reports (DMRs), 40 CFR 122.44(i)(2) requires that all permittees report monitoring
results* at least annually. Regions and States may choose to invoke this requirement
by issuing permits which require permittees to provide an annual written certification
that they have implemented all permit requirements for pollution prevention practices
dealing with waste management and disposal or beneficial reuse.
C. Targeting Compllancr ActlvltlM
While many feedlots are classified as "minors," they still have the potential to
impair water quality. Therefore, compliance monitoring activities, .both annual report
and inspections, will be conducted on a targeted population. Each Region should
evaluate available data and targeting tools to identify priority watersheds or other
geographic areas with measurable feedlot problems. For implementation in FY 1995, a
targeting strategy should be developed.with each State to identify candidates for
compliance review and compliance inspections. This strategy should be applied to at
least one priority watershed or geographic area per State and may be integrated into
other watershed or geographic initiatives.
General permits now in place in the States of Arizona, Idaho, Louisiana,
New Mexico. Oklahoma, South Dakota and Texas should be, targeted during FY 1994
for review to-ensure all facilities subject to NPDES requirements have filed a notice of
intent. Any significant complaints received on CAFOs should trigger compliance review
and/or enforcement action where the problem is not resolved in a timely manner.
D. Development of Monitoring Tool*
To facilitate coverage, the Agency will seek to develop additional tools for
expanding compliance evaluation. During FY 1994, the use of aerial photographic
techniques will be piloted in at least one Region. Also during FY 1994, the Agency will
seek to promote the use of trained public involvement Training materials will be
developed for use by Regions and States. This effort wiB be integrated into the ongoing
-------
Water Quality Strategy for Animal Feeding Operations Dfi^or
efforts of the Office of Wetlands, Oceans and Watersheds volunteer monitoring
coordinator.
E. Interagency Agreement!
. To gain the support of other federal agencies in gathering information to promote
compliance at feedlot operations a.-.d to provide a means for distributing .guidance and
informal!', i to the operators, the A^ancy will seek to establish interagency agreements
with the ' >OA and with the Fish and Wildlife Service (FWS). Agreements should be
preparea on a Region-by-Region basis under the umbrella of a national memorandum
of understanding. However, if this * Broach proves too administratively cumbersome, it
may be more appropriate to either ') develop one agreement between the agencies
nationally or 2) deveto,: a standai jreement th*» can be modified to suit the differing
activities in each State.
A model interagency agreement will be developed using guidance and input
from each party to the agreement. Typical areas covered in an agreement should
include: purpose; authority; period of effectiveness; activities covered; development of
implementation plans; resources and cost sharing; inspections, sampling, and other
information collection; reporting; training; agreement to testify; and enforcement. Each
agreement would remain in effect until either party chooses to terminate or amend it
Annual operating plans and coordination meetings should be established.
The FWS has already given notice to their field offices about EPA's interest in
using th ^esources to document feedlot pollution problems.
If <.:>. agencies are agreeable, the implementation of these agreements should
take one to two years using a team to develop each agreement
The Regions should also seek support from other units of State and local
government (e.g.. State Health Departments) in gathering information and promoting
environmentally sound management practices. Representatives of these agencies
often visit livestock feeding facilities on a monthly basis. Collaboration with these units
could be emphasized within targeted watersheds.
VI. Strategy for Effecting Change and Encouraging Excellence
Efforts to effect change and encourage excellence will cover the areas of
permittee pegulations. educational information, and compliance
monitorinb enforcement The'purpose is to promote strategies that highlight improved
communication with the agricultural community and provide an opportunity for
feedback. EPA will work in partnership with States and USDA to make full use of the
many systems and programs they have in place.
-------
Water Quality Strategy for Animal Feeding Operations December 1993
The size of this industry and its potential for impact on the environment indicates
a need to communicate with ail facilities and their associated support industries
regardless of whether or not they are covered by a NPDES permit. The Agency will
supplement its normal regulatory approaches by encouraging environmentally sound
management of feedlot operations through education, information dissemination and
incentives. A communications strategy utilizing communication vehicles already
available in-this industry will be developed at both the national and Regional levels
during FY 1994. These strategies should be based on the following criteria:
. 1. System or network available for easy access to the owner/operator of
animal facilities .
2. Likelihood of this project being implemented due to cost and work time
expense to the Agency
3. Probability that the project would be accepted by the owner/operator and.
therefore, lead to changed behavior patterns
4. Likelihood that the industry's understanding of, and working relationship
with, EPA will be improved
A. Permitting/Regulatory Procaaa
The permitting/regulatory process provides an excellent opportunity for
interaction between the Agency and the public. The Agency will utilize the existing
mechanisms to allow for more information dissemination. EPA and the States should
work together in the process of developing regulations, technical standards and permits
to use every available opportunity to provide the livestock feeding industry with
information on the regulatory process and decision making.
Starting immediately the Regions, working in cooperation with the States, will
develop a communications strategy for each feedlot general permit. The Regions and
States are encouraged to use a strategy similar to the one used by Region 6 (See
Appendix).
By April 30,1994, the Agency will develop an easy-to-underetand summary of all
federal requirements (CZARA of 1990, storm water, NPDES. ground water, etc.)
covering teedlots.
B. Compliance/Enforcement
Enforcement actions a/e.necessary to maintain the integrity of the NPDES permit
program. They may be taken for failure to apply for or comply with the conditions of an
individual or general permit An enforcement action has an immediate effect on the
facility subject to the action. However, publicizing an enforcement action can generate
a more far-reaching deterence effect. Therefore, through the compliance/enforcement
component of the communication strategy, EPA will publicize enforcement actions as a
8
-------
Water Quality Strategy for Animal Feeding Operations _ December
means for promoting compliance and improved environmental management amon
regulated feedlots. Publicizing enforcement actions also would be intended to
increase awareness among smaller, unregulated facilities that they may be designated
as a CAPO because of poor animal waste management practices. The potential for
being so designated can be a strong incentive for smaller facilities to manage their
waste more carefully. EPA will emphasize ways in which operators of such smaller
facilities can manage their waste to protect water quality and thus minimize the chance
that they may be regulated in the future. This will encourage operators of livestock
feeding facilities to be aware of their potential environmental problems and to reduce
their environmental profile.
During FY 1 994, the Agency should take enforcement actions against facilities
that fail to comply with existing regulations or fail to apply for newly-issued general
permits. These activities will primarily be administrative and will seek penalties as
appropriate.
C. Education/Information
The Agency will work with USDA, States, associations and contractor operations
that are willing to provide EPA with a vehicle to inform operators about proper
environmental practices. The Agency and States will provide the following educational
resources (these are prioritized, starting with the most important):
1. Provide educational packets on environmental management, fundir
and regulation information to all participating associations and appropriate State ana
federal agencies o.rce per year starting April 1 , 1994. EPA Headquarters (HQ) will
consolidate information from nonpoint source (NPS), permitting, enforcement, and
funding programs and make copies available to other agencies and producers. The
packets will be developed with input from USDA and State Departments of Agriculture.
However, emphasis will be placed on providing dear guidance on EPA regulations,
permits and enforcement actions. Information sheets such as 'How to Comply With an
EPA Inspection" and "Wetlands Protection" win also be provided in these packets.
These packets will be mailed out to all state and federal agencies, as well as to all
State and national producer organizations for their member/constituency use. The
information will be updated once per year. This packet should be compiled by HQ and
should include Regional and State input and concerns. The mailing list for this project
should be developed from a survey of interested organizations.
'
Provide effective speaker(s) to participate at requested functions and
seminars that are sponsored by other agencies and associations. Each Region and
State and HQ will have specific, speakers trained to provide talks to the agricultural
community. This approach to 'consumer education' provides EPA and States with the
perfect opportunity to improve public understanding and to emphasize pollution
prevention measures and philosophies. EPA and States win provide speakers to
participate on agricultural talk shows on 'TV and radio. The goal is a minimum of one
presentation per State each year on regulating the livestock feeding industry. HQ
-------
Water Quality Strategy for rnal Feeding Qpfl/ Pegflmbar 7993
develop handout materials and provide slides to all of the Regions and States on the
regulation ol livestock feeding facilities. Subjects covered will include dear definition of
who's covered * the agriculture exemption - what does it mean?.* EPA's pollution
prevention initiative and permit compliance/enforcement actions.
3. Utilize electronic bulletin boards (computer networks) and existing
newsletters to provide quick updates on EPA regulations, programs, and funolng (e.g.,
deadline reminders for permits or grants and addresses where information can be
obtained) when rapid communication is needed. This will be done through the NFS
Bulletin. Board and other bulletin boards. The NFS program also has an occasionally
published newsletter, Nonpoint News-Notes, which is distributed to the public. Updates
to electronic bulletin boards and newsletters will be provided by OWEC's
communications coordinator.
0. Incentive Program*
Incentive programs often include awards, grants, loans or regulatory action.
These programs may change attitudes more rapidly than just providing information
alone.
1. Awards and/or Recognition. EPA will use every opportunity to
encourage producer associations to give environmental excellence awards and provide
courtesy inspections. The Agency will participate, if requested, in developing criteria by
which facilities could be evaluated for awards. Associations also will be encouraged to
provide courtesy inspections whereby an association inspector visits facilities to identify
possible compliance violations for the benefit of the operator. Materials and training for
courtesy inspection also can be provided. Awards programs will allow the livestock
feeding industry to have guidelines and benchmarks to use in their endeavors.
2. Regulatory Action. The potential for enforcement actions is always a
strong incentive for environmental compliance by regulated faciUttes. In addition.
designating an AFO as a GAFO could prove very effective in reducing water quality
impacts if there is sufficient cause (e.g.. theAFO discharge causes water quality
impairment). .
(Each Region and State should determine the degree to which available grants and
loans may be used as incentives for AFOs. This strategy does not cover the use of
grants and loans).
10
-------
Water Quality Strategy for Afiifflff Feeding Operations Decambor 1993
APPENDIX
Region 6 Communication Strategy for the Issuance of a General Permit for all
Concentrated Animal Feeding Operations:
With th« Industry In the process of writing, proposing and issuing
the permit, the Region scheduled several meetings with representatives from industry.
The industry representatives provided technical information about the operations of the
regulated facilities to the permit writer and informed the permit writer of the concerns
and opinions prevalent in the industry. The meetings also provided the permit writer
access to the industry to educate them about the regulatory process from the very
beginning. The industry representatives then distributed information to the operators
and regulated public prior to permit proposal. The meeting process was an important
stage in permit development for an industry that largely has gone unregulated, and it cm
down on the initial shock and negative reaction which could have resulted from the
proposal of a mostly unexpected permit
Public Hearing Process Along with the public hearing and comment period
process, the Region provided workshops with each of several public hearings. The
workshops allowed the EPA permit writer to interact directly with the regulated public.
The importance of this forum cannot be adequately measured. This format allows for
the free exchange of information to dispel misinformation and allow for more
comprehensive education of both the public and the permit writer. However, what j
cannot be measured is the benefit derived from allowing confused and angry
individuals the opportunity to T>low off steam* at the very agency they are frustrated with
and then approach the problems more calmly - which makes the public comment period
a more productive process.
Additional Qtitraach Personnel from the Region made themselves available
to give talks at other workshops and seminars. The major benefit derived from these
activities was to show the Agency's willingness to work with industry and the public; the
public was provided a person to talk with instead of cold regulatory language on a
page. Because we were willing to extend ourselves, so were the individuals we were
regulating. This activity also extended the benefits derived from the workshops held by
EPA.
This enabled the Region to help the public understand both the regulatory
process and EPA's responsibility to protect the environment The public was able to
see, first hand, how EPA uses information and data to make determinations about
permit conditions.
11
-------
VLM.3
"Memo Clarifying the CERCLA Reporting Requriements for Releases of Ethylene Glycol
from Deicing Operations at Airports", August 2,1996.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
. WASHINGTON, D.C. 20460
A'JG 2 !93g
OFFICE Of
ENFORCEMENT AND
COMPLIANCE ASS'JRANCc
Mr. Robert Van Voorhees
Ms. Carol Lynn Green
Bryan Cave LLP
700 Thirteenth St., NW
Washington, D.C. 20005-3960
Dear Mr. Van Voorhees and
Ms. Green:
This is in response to your request for clarification of the
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) Section 103(a) reporting requirement for releases of
hazardous substances (specifically ethylene glycol) during
deicing operations at airports in quantities equal to or in
excess of Reportable Quantities (RQs). This also provides a more
specific response to your inquiries about releases' of hazardous
substances to waters of the United States and applicability of
the "federally permitted release" exemption for discharges tc
waters of the U.S. We have reviewed regulations at 40 CFR pares
117 and 302, and the preambles of these and related rules. We
have also coordinated this response with the Office of Solid
Waste and Emergency Response, the Office of Water, and the Office
of General Counsel.
CERCLA Release Reporting
CERCLA Section 103(a) and the implementing regulations
require any person in charge of a vessel or facility to
immediately notify the National Response Center (NRC) of a
release of a hazardous substance from such vessel or facility if,
in a 24-hour period, the release is of a quantity equal to or
greater than the quantity specified in 40 CFR 302.1 With regard
to the obligation to report releases of ethylene glycol being
used for aircraft deicing at airports, the "facility" may include
the truck applying the deicer, the airplane to which the deicer
is applied, or the entire airport.2 Currently, the person in
charge of any one of these facilities from which a release into
1 See 42 U.S.C. 9603(a); 40 CFR 302.6(a).
2 See CERCLA Section 101(9), 42 U.S.C. 9601(9)(broad
definition of the term "facility").
Recycle
-------
the environment of 5,000 pounds or more of ethylene glycol in any
24-hour period occurs (if not exempted as a federally permitted
release) must report that release to the NRC. In addition, all
releases subject to reporting under CERCLA Section 103 (a) are
also reportable under Section 304 of the Emergency Planning and
Community Right-to-Know Act to the state emergency planning
commission and the local emergency planning committee for any
area likely to be affected by the release. S_ee 60 Fed. Reg.
30926, 30928 (June 12, 1995); 40 CFR 302.6(a); 40 CFR 355.40.
Persons in charge of these different facilities, i.e., the
trucks, airplanes, and airports, may coordinate their actions to
ensure that releases of ethylene glycol into the environment in
quantities equal to or exceeding the RQ are reported. For
example, the person or entity in charge of the airport could
coordinate and aggregate the ethylene glycol releases which occur
during airport deicing operations, and be responsible for
reporting to the NRC releases to the environment that equal or
exceed the RQ in any 24-hour period (that are not otherwise
exempted from reporting requirements as discussed below).
However, each person in charge of a facility, including
those in charge of the deicing trucks and airplanes, still would
bear the burden of ensuring that releases from those facilities
are reported properly and accurately, either on their own or as
aggregated and reported by the airport. Finally, releases of
ethylene glycol as a result of deicing operations at airports in
quantities that equal or exceed the RQ in a 24-hour period (and
that are not otherwise federally permitted as discussed below)
may qualify for reduced release reporting under the continuous
release reporting regulation. See 40 CFR 302.8.
Federally Permitted Release Exemption.
CERCLA Section 103(a) exempts those persons in charge of
vessels and facilities from reporting releases that are federally
permitted. The federally permitted release exemptions under
CERCLA Section 101(10) could potentially apply to releases of
hazardous substances to all environmental media, though different
parts of these exemptions apply for releases to different media.
See 42 U.S.C. Section 9601(10).
Federally Permitted Release Exemption for CWA Discharges
Such "federally permitted releases" are defined in CERCLA
Section 101(10) to include three types of point source discharges
covered or pertaining in specified ways to permits under Section
402 of the Clean Water Act (CWA). See 42 U.S.C. Section
9601(10)(A)-(C). This statutory language of CERCLA Section
101(10)(A)-(C) is taken directly from the CWA Section 311
-------
definition of "discharge."3 Although the EPA has not provided a
final interpretation of the meaning of "federally permitted
release" under CERCLA Section 101(10), EPA has provided its
interpretation of CWA Section 311(a)(2)(A)-(C) in 40 CFR 117.12,
and is using those regulatory provisions to respond to your
inquiry.
As noted above, the regulations at 40 CFR 117.12 define
three types of federally permitted releases of hazardous
substances to waters of the U.S. A release is federally
permitted, and therefore exempt from both the CWA Section
311(b)(5) and CERCLA reporting requirement, only if the
circumstances of the release meet all the criteria under any one
of these three definitions. This determination must be made on a
case by case basis for each release of a hazardous substance in
quantities equal to or in- excess of the RQ. To determine whether
a release is federally permitted, the discharger must review the
National Pollutant Discharge Elimination System (NPDES) permit
requirements, the permit application and record for final permit,
the specific circumstances relating to the release, and the
criteria for the three exemptions under 40 CFR 117.12. Under
these definitions, the discharger must have an NPDES permit [or
State Pollutant Discharge Elimination System (SPDES) permit from
an authorized state] or, under the third definition, have
submitted a permit application.
The first federally permitted release definition applies to
discharges in compliance with an NPDES permit. A discharge is
"in compliance" if the permit contains an effluent limitation
specifically applicable to the substance discharged, or an
effluent limitation applicable to another waste parameter which
has specifically been identified in the permit as intended to
limit such substance (i.e., an indicator pollutant), and the
discharge is in compliance with the effluent limitation. See -40
CFR 117.12(b).
Under the second definition, the substance and its amount,
origin, source, and treatment must be identified in the public
record (i.e.., the permit, permit application or other document
contained in the record for final permit); the identified
treatment system must be in place and must be capable of treating
the identified amount of the identified substance; and the NPDES
permit must require the identified substance to be treated in the
event of an onsite release. This second exclusion will not
exempt a discharge resulting from an onsite release of the
identified substance which exceeds the quantity or concentration
contemplated in the public record. See 40 CFR 117.12(c).
3 See 42 U.S.C. Section 1321(a)(2)(A)-(C).
-------
The third definition addresses continuous or anticipated
intermittent discharges of hazardous substances from a point
source, identified in an NPDES permit or permit application,
which occur within the scope of the relevant operating or
treatment systems. A release meets this definition if the
hazardous substance is discharged from a point source for which a
valid permit exists or for which a permit application has been
submitted, and the discharge of the hazardous substance results
from:
- the contamination of storm water or noncontact cooling
water, provided that the storm water or cooling water is not
contaminated by an onsite spill; or,
- a continuous or anticipated intermittent discharge of
process waste water, and the discharge originates within the
manufacturing or treatment systems; or,
- an upset or failure of a treatment system or of a process
producing a continuous or anticipated intermittent discharge
where the upset or failure results from a control problem, an
operator error, a system failure or malfunction, an equipment or
system start-up or shutdown, an equipment wash, or a production
schedule change, provided that such upset or failure is not
caused by an onsite spill of a hazardous substance. See 40 CFR
117.12 (d) ..
In summary, discharges of hazardous substances to waters of the
U.S. which are not subject to and in compliance with an effluent
limitation in an NPDES permit, and which are not covered by the
second or third exemption, will be subject to the CERCLA
reporting requirement.
For airport deicing operators covered by one of the EPA's
NPDES storm water general permits (either the Baseline General
Permit or the Multisector General Permit4) , the exemption for an
"anticipated intermittent discharge" is potentially applicable to
releases of ethylene glycol during routine deicing operations.
Such releases in quantities equal, to or exceeding the RQ are
exempt from the reporting requirement under CERCLA Section 103
only if the release meets all of the following:
- the discharge occurs through a storm water outfall
identified to receive deicing operation discharges in the
4 "Final NPDES General Permits for Storm Water Discharges
Associated with Industrial Activity," dated September 9, 19S2,
and September 25, 1992, or "Final National Pollutant Discharge
Elimination System Storm Water Multisector General Permit for
Industrial Activities," dated September 29, 1995, and February 9,
1996.
-------
permittee's Storm Water Pollution Prevention Plan (SWPPP)(the
SWPPP would be considered either part of the NPDES permit or part
of the NPDES permit application)5;
- the ethylene glycol released to waters of the U.S. is £
component of'storm water. Storm water is defined as storm water
runoff, snow melt runoff, and surface runoff and drainage. Dry
weather discharges of ethylene glycol (i.e., discharges generated
by processes other than those included in the definition of storm
water) to waters of the U.S. are not authorized by the storm
water NPDES permits and are not exempt from the CERCLA reporting
requirement;
- the SWPPP identifies the use of ethylene glycol during
deicing operations and the areas of the airport where it will be
used;
- it is not the first such release of the calendar year in a
quantity equal to -or in excess of the RQ (see next paragraph);
and,
- the contamination of storm water with ethylene glycoi is
not the result of a spill.
Although the discharge of ethylene glycol in storm water to
a water of the U.S. may meet the 40 CFR Part 117 criteria for
federally permitted releases, it is important to note that for
discharges covered under either the EPA's Baseline General Permit
or Multisector General Permit, these permits contain independent
reporting and prevention requirements for releases of hazardous
substances equal to or in excess of RQs. For releases of
ethylene glycol-contaminated storm water that occur as a result
of routine deicing operations, both general permits require the
permittee to report to the NRC the first such release that equals
or exceeds the RQ each calendar year. In addition, these permits
require the permittee to provide a written description in the
SWPPP of the dates on which all such releases occurred, the type
and estimate of the amount of material released, and the
circumstances leading to such releases. Moreover, the SWPP? must
be reviewed by the permittee to identify possible additional
measures to prevent or minimize such releases, and the SWPP? must
be modified where appropriate.
Where a permitted storm water discharge contains a hazardous
substance in an amount equal to or in excess of the RQ, but does
not meet the 40 CFR 117.12(d) criteria for anticipated
5 For the Baseline General Permit, see 57 Fed. Reg. 41308
(September 9, -1992), or 57 Fed. Reg. 44446 (September 25, 1992).
For the Multisector General Permit, see 60 Fed. Reg. 51215
(September 29, 1995).
-------
intermittent discharges, the EPA storm water general permits
require the permittee to take several actions. First, the
discharger must notify the NRC immediately after becoming
knowledgeable of the release. In addition, the permittee must
modify the SWPPP for the facility within 14 days of knowledge of
the release to provide a description of the release, an account
of the circumstances leading to the release, and the date of the
release. The SWPPP must also be reviewed by the permittee and
appropriately modified to identify measures to prevent the
recurrence of such releases and to respond to such releases.
Finally, the permittee must submit to EPA within 14 days a
written description of the release, the date that such release
occurred, the circumstances leading to the release, and the s^eps
to be taken to modify the SWPPP.6
The EPA storm water general permits also clarify that
releases of hazardous substances caused by non-storm water
discharges, such as onsite spills of ethylene glycol, are not
authorized by these permits, and the discharger must report all
such discharges in excess of RQs as required by CERCLA Section
103. In addition, all unauthorized discharges of pollutants to
waters of the U.S. are a violation of the CWA regardless of the
quantity discharged.
It is also important to stress that, regardless of whether a
release is exempt from the CERCLA reporting requirement, the
permittee is still required to comply with all conditions and
limitations of its NPDES permit. For permittees covered by one
of the EPA's storm water general permits, the permittee must
develop an SWPPP that identifies potential sources of pollution
that may reasonably be expected to affect the quality of storm
water 'discharges associated with industrial activity from the
facility. In addition, the SWPPP shall describe and ensure the
implementation of practices that are to be used to reduce the
pollutants in these storm water discharges. Failure to comply
with all conditions of the NPDES permit, including the SWPP? and
the reporting requirements described above, could subject the
permittee to an enforcement action under the CWA which .can
include penalties of up to $25,000 per day per violation.
The federally permitted release exemptions under CSRCLA
Section 101(10)(A)-(C) apply only to those portions of releases
of hazardous substances that are ultimately discharged through
the permitted outfall to a water of the U.S. Therefore, if any
of the ethylene glycol released during routine deicing operations
is not collected by the storm water collection or drainage system
6 For the Baseline General Permit, see 57 Fed. Reg. 41253
and 41307 (September 9, 1992) or 57 Fed. Reg.' 44445 (September
25, 1992). For the Multisector General Permit, see 60 Fed. Reg.
50813 and 51114 (September 29, 1995).
-------
and discharged through the permitted outfall, but is released to
the land surface, air, water or other environmental media as
defined by CERCLA Section 101(8), the permitte_e. would normally
have to report all remaining nonpermitted portions of such
releases where the total of the nonpermitted portions equals or
exceeds the RQ. Of course, if any of these remaining portions
are federally permitted under other provisions of CERCLA Section
101(10) that relate to other media, those federally permitted
portions are also exempt. Currently, however, there are no
federal permits that address releases of ethylene glycol to the
air or land surface. Therefore, all releases of ethylene glycol
to these environmental media that collectively, along with any
non-federally permitted releases to water, equal or exceed the RQ
must be reported to the NRC.
I hope this letter clarifies the CERCLA reporting
requirements for releases of ethylene glycol from de icing
operations at airports. If you have additional CERCLA-related
questions, please call Beth Crowley of my staff at 202-564-4177.
If you have additional NPDES -related questions, please call Susan
Johnson at 202-564-8329.
Sincerely,
Robert I. Van Heuvelen, Director
Office of Regulatory Enforcement
cc:'Andrew Gordon, OGC
Stephen Sweeney, OGC
Bill Zobel, OERR
Bill Swietlik, OWM
Nancy Cunningham, OWM
-------
VLO.l
"Combined Sewer Overflow (CSO) Control Policy", April 19,1994, 59 FR 18688.
-------
Tuesday
April 19, 1994
Part VII
Environmental
Protection Agency
Combined Sewer Overflow (CSO) Control
Policy; Notice
-------
18688
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-4732-7]
Combined Sewer Overflow (CSO)
Control Policy
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final policy.
SUMMARY: EPA has issued a national
policy statement entitled "Combined
Sewer Overflow (CSO) Control Policy."
This policy establishes a consistent
national approach for controlling
discharges from CSOs to the Nation's
waters through the National Pollutant
Discharge Elimination System (NPDES)
permit program.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Lape, Office of Wastewater
Enforcement and Compliance, MC-
4201, U.S. Environmental Protection
Agency. 401 M Street SW., Washington,
DC 20460, (202) 260-7361.
SUPPLEMENTARY INFORMATION: The main
purposes of the CSO Control Policy are
to elaborate on the Environmental
Protection Agency's (EPA's) National
CSO Control Strategy published on
September 8,1989, at 54 FR 37370, and
to expedite compliance with the
requirements of the Clean Water Act
(CWA). While implementation of the
1989 Strategy has resulted in progress
toward controlling CSOs. significant
public health and water quality risks
remain.
This Policy provides guidance to
permittees with CSOs, NPDES
authorities and State water quality
standards authorities on coordinating
the planning, selection, and
implementation of CSO controls that
meet the requirements of the CWA and
allow for public involvement during the
decision-making process.
Contained in the Policy are provisions
for developing appropriate, site-specific
NPDES permit requirements for all
combined sewer systems (CSS) that
overflow as a result of wet weather
events. For example, the Policy lays out
two alternative approachesthe
"demonstration" and the
"presumption" approachesthat
provide communities with targets for
CSO controls that achieve compliance
with the Act, particularly protection of
water quality and designated uses. The
Policy also includes enforcement
initiatives to require the immediate
elimination of overflows that occur
during dry weather and to ensure that
ie remaining CWA requirements are
complied with as soon as practicable.
THe permitting provisions of the
Poiicv -.vere developed as a result of
extensive input received from key
stakeholders during a negotiated policy
dialogue. The CSO stakeholders
included representatives from States,
environmental groups, municipal
organizations and others. The negotiated
dialogue was conducted during the
Summer of 1992 by the Office of Water
and the Office of Water's Management
Advisory Group. The enforcement
initiatives, including one which is
underway to address CSOs during dry
weather, were developed by EPA's
Office of Water and Office of
Enforcement.
EPA issued a Notice of Availability on
the draft CSO Control Policy on January
19, 1993, (58 FR 4994) and requested
comments on the draft Policy by March
22,1993. Approximately forty-one sets
of written comments were submitted by
a variety of interest groups including
cities and municipal groups,
environmental groups. States,
professional organizations and others.
All comments were considered as EPA
prepared the Final Policy. The public
comments were largely supportive of
the draft Policy. EPA received broad
endorsement of and support for the key
principles and provisions from most
commenters. Thus, this final Policy
does not include significant changes to
the major provisions of the draft Policy,
but rather, it includes clarification and
better explanation of the elements of the
Policy to address several of the
questions that were raised in the
comments. Persons wishing to obtain
copies of the public comments or EPA's
summary analysis of the comments may
write or call the EPA contact person.
The CSO Policy represents a
comprehensive national strategy to
ensure that municipalities, permitting
authorities, water quality standards
authorities and the public engage in a
comprehensive and coordinated
planning effort to achieve cost effective
CSO controls that ultimately meet
appropriate health and environmental
objectives. The Policy recognizes the
site-specific nature of CSOs and their
impacts and provides the necessary
flexibility to tailor controls to local
situations. Major elements of the Policy
ensure that CSO controls are cost
effective and meet the objectives and
requirements of the CWA.
The major provisions of the Policy are
as follows.
CSO permittees should immediately
undertake a process to accurately
characterize their CSS and CSO
discharges, demonstrate implementation
of minimum technology-based controls
identified in the Policy, and develop
'.ong-term CSO control plans which
evaluate alternatives for attaining
compliance with the CWA, including
compliance with water quality
standards and protection of designated
uses. Once the long-term CSO control
plans are completed, permittees will be
responsible to implement the plans'
recommendations as soon as
practicable.
State water quality standards
authorities will be involved in the long-
term CSO control planning effort as
well. The water quality standards
authorities will help ensure that
development of the CSO permittees'
long-term CSO control plans are
coordinated with the review and
possible revision of water quality
standards on CSO-impacted waters.
NPDES authorities will issue/reissue
or modify permits, as appropriate, to
require compliance with the technology-
based and water quality-based
requirements of the CWA. After
completion of the long-term CSO
control plan, NPDES permits will be
reissued or modified to incorporate the
additional requirements specified in the
Policy, such as performance standards
for the selected controls based on
average design conditions, a post-
construction water quality assessment
program, monitoring for compliance
with water quality standards, and a
reopener clause authorizing the NPDES
authority to reopen and modify the
permit if it is determined that the CSO
controls fail to meet water quality
standards or protect designated uses.
NPDES authorities should commence
enforcement actions against permittees
that have CWA violations due to CSO
discharges during dry weather. In
addition, NPDES authorities should
ensure the implementation of the
minimum technology-based controls
and incorporate a schedule into an
appropriate enforceable mechanism,
with appropriate milestone dates, to.
implement the required long-term CSO
control plan. Schedules for
implementation of the long-term CSO
control plan may be phased based on
the relative importance of adverse
impacts upon water quality standards
and designated uses, and on a
permittee's financial capability.
EPA is developing extensive guidance
to support the Policy and will announce
the availability of the guidances and
other outreach efforts through various
means, as they become available. For
example, EPA is preparing guidance on
he nine minimum controls,
characterization and monitoring of
CSCs. development of long-term CSC
control plans, and financial capability.
Permittees will be expected to comply
.vith 2T.v existing CSO-reiated
rscuirements in NPDES oenr.its.
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18689
consent decrees or court orders unless
revised to be consistent with this Policy.
The policy is organized as follows:
I. Introduction
A. Purpose and Principles
B. Application of Policy
C Effect on Current CSO Control Efforts
0. Small System Considerations
E. Implementation Responsibilities
F. Policy Development
n. EPA Objectives for Permittees
A. Overview
B. Implementation of the Nine Minimum
Controls
C Long-Term CSO Control Plan
1. Characterization. Monitoring, and
Modeling of the Combined Sewer
Systems
2. Public Participation
3. Consideration of Sensitive Areas
4. Evaluation of Alternatives
5. Cost/Performance Consideration
6. Operational Plan
7. Maximizing Treatment at the Existing
POTW Treatment Plant
8. Implementation Schedule
9. Post-Construction Compliance
Monitoring Program
in. Coordination With State Water Quality
Standards
A. Overview
B. Water Quality Standards Reviews
IV. Expectations for Permitting Authorities
A. Overview
B. NPDES Permit Requirements
1. Phase I PermitsRequirements for
Demonstration of the Nine Minimum
Controls and Development of the Long-
Terra CSO Control Plan
2. Phase II PermitsRequirements for
Implementation of a Long-Term CSO
Control Plan
3. Phasing Considerations
V. Enforcement and Compliance
A. Overview
B. Enforcement of CSO Dry Weather
Discharge Prohibition
C Enforcement of Wet Weather CSO
Requirements
I. Enforcement for Compliance With Phase
I Permits
2. Enforcement for Compliance With Phase
II Permits
D. Penalties
List of Subjects in 40 CFR Part 122
Water pollution control.
Authority: Clean Water Act. 33 U.S.C. 1251
et seq.
Dated: April 8, 1994.
Carol M. Browner.
Administrator.
Combined Sewer Overflow (CSO)
Control Policy
I. Introduction
A. Purpose and Principles
The main purposes of this Policy are
to elaborate on EPA's National
Combined Sewer Overflow (CSO)
Control Strategy published on
Seotember 8, 1989 at 54 FR 37370 (1989
Strategy) and to expedite compliance
with the requirements of the Clean
Water Act (CWA). While
implementation of the 1989 Strategy has
resulted in progress toward controlling
CSOs, significant water quality risks
remain.
A combined sewer system (CSS) is a
wastewater collection system owned by
a State or municipality (as defined by
section 502(4) of the CWA) which
conveys sanitary wastewaters (domestic,
commercial and industrial wastewaters)
and storm water through a single-pipe
system to a Publicly Owned Treatment
Works (POTW) Treatment Plant (as
defined in 40 CFR 403.3(p)). A CSO is
the discharge from a CSS at a point prior
to the POTW Treatment Plant. CSOs are
point sources subject to NPDES permit
requirements including both
technology-based and water quality-
based requirements of the CWA. CSOs
are not subject to secondary treatment
requirements applicable to POTWs.
CSOs consist of mixtures of domestic
sewage, industrial and commercial
wastewaters, and storm water runoff.
CSOs often contain high levels of
suspended solids, pathogenic
microorganisms, toxic pollutants,
floatables, nutrients, oxygen-demanding
organic compounds, oil and grease, and
other pollutants. CSOs can cause
exceedances of water quality standards
(WQS). Such exceedances may pose
risks to human health, threaten aquatic
life and its habitat, and impair the use
and enjoyment of the Nation's
waterways.
This Policy is intended to provide
guidance to permittees with CSOs,
National Pollutant Discharge
Elimination System (NPDES) permitting
authorities, State water quality
standards authorities and enforcement
authorities. The purpose of the Policy is
to coordinate the planning, selection,
design and implementation of CSO
management practices and controls to
meet the requirements of the CWA and
to involve the public fully during the
decision making process.
This Policy reiterates the objectives of
the 1989 Strategy:
1. To ensure that if CSOs occur, they are
only as a result of wet weather;
2. To bring all wet weather CSO
discharge points into compliance with
the technology-based and water
quality-based requirements of the
CWA; and
3. To minimize water quality, aquatic
biota, and human health impacts from
CSOs.
This CSO Control Policy represents a
comprehensive national strategy to
ensure that municipalities, permitting
authorities, water quality standards
authorities and the public engage in a
comprehensive and coordinated
planning effort to achieve cost-effective
CSO controls that ultimately meet
appropriate health and environmental
objectives and requirements. The Policy
recognizes the site-specific nature of
CSOs and their impacts and provides
the necessary flexibility to tailor
controls to local situations. Four key
principles of the Policy ensure that CSO
controls are cost-effective and meet the
objectives of the CWA. The key
principles are:
1. Providing clear levels of control that
would be presumed to meet
appropriate health and environmental
objectives;
2. Providing sufficient flexibility to
municipalities, especially financially
disadvantaged communities, to
consider the site-specific nature of
CSOs and to determine the most cost-
effective means of reducing pollutants
and meeting CWA objectives and
requirements;
3. Allowing a phased approach to
implementation of CSO controls
considering a community's financial
capability; and
4. Review and revision, as appropriate.
of water quality standards and their
implementation procedures when
developing CSO control plans to
reflect the site-specific wet weather
impacts of CSOs.
This Policy is being issued in support
of EPA's regulations and policy
initiatives. This Policy is Agency
guidance only and does not establish or
affect legal rights or obligations. It does
not establish a binding norm and is not
finally determinative of the issues
addressed. Agency decisions in any
particular case will be made by applying
the law and regulations on the basis of
specific facts when permits are issued.
The Administration has recommended
that the 1994 amendments to the CWA
endorse this final Policy.
B. Application of Policy
The permitting provisions of this
Policy apply to all CSSs that overflow
as a result of storm water flow,
including snow melt runoff (40 CFR
122.26(b)(13)). Discharges from CSSs
during dry weather are prohibited by
the CWA. Accordingly, the permitting
provisions of this Policy do not apply to
CSOs during dry weather. Dry weather
flow is the flow in a combined sewer
that results from domestic sewage,
groundwater infiltration, commercial
and industrial wastewaters, and any
other non-precipitation related flows
(e.g.. tidal infiltration). !n addition to
-------
18690
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
the permitting provisions, the
Enforcement and Compliance section of
this Policy describes an enforcement
initiative being developed for overflows
that occur during dry weather.
Consistent with the 1989 Strategy, 30
States that submitted CSO permitting
strategies have received EPA approval
or, in the case of one State, conditional
approval of its strategy. States and EPA
Regional Offices should review these
strategies and negotiate appropriate
revisions to them to implement this
Policy. Permitting authorities are
encouraged to evaluate water pollution
control needs on a watershed
management basis and coordinate CSO
control efforts with other point and
nonpoint source control activities.
C. Effect on Current CSO Control Efforts
EPA recognizes that extensive work
has been done by many Regions, States,
and municipalities to abate CSOs. As
such, portions of this Policy may
already have been addressed by
permittees' previous efforts to control
CSOs. Therefore, portions of this Policy
may not apply, as determined by the
permitting authority on a case-by-case
basis, under the following
circumstances:
1. Any permittee that, on the date of
publication of this final Policy, has
completed or substantially completed
construction of CSO control facilities
that are designed to meet WQS and
protect designated uses, and where it
has been determined that WQS are
being or will be attained, is not covered
by the initial planning and construction
provisions in this Policy; however, the
operational plan and post-construction
monitoring provisions continue to
apply. If, after monitoring, it is
determined that WQS are not being
attained, the permittee should be
required to submit a revised CSO
control plan that, once implemented,
will attain WQS.
2. Any permittee that, on the date of
publication of this final Policy, has
substantially developed or is
implementing a CSO control program
pursuant to an existing permit or
enforcement order, and such program is
considered by the NPDES permitting
authority to be adequate to meet WQS
and protect designated uses and is
reasonably equivalent to the treatment
objectives of this Policy, should
complete those facilities without further
planning activities otherwise expected
by this Policy. Such programs, however,
should be reviewed and modified to be
consistent with the sensitive area,
financial capability, and post-
construction monitoring provisions of
this Policy.
3. Any permittee that has previously
constructed CSO control facilities in an
effort to comply with WQS but has
failed to meet such applicable standards
or to protect designated uses due to
remaining CSOs may receive
consideration for such efforts in future
permits or enforceable orders for long-
term CSO control planning, design and
implementation.
In the case of any ongoing or
substantially completed CSO control
effort, the NPDES permit or other
enforceable mechanism, as appropriate,
should be revised to include all
appropriate permit requirements
consistent with Section FV.B. of this
Policy.
D. Small System Considerations
The scope of the long-term CSO
control plan, including the
characterization, monitoring and
modeling, and evaluation of alternatives
portions of this Policy may be difficult
for some small CSSs. At the discretion
of the NPDES Authority, jurisdictions
with populations under 75,000 may not
need to complete each of the formal
steps outlined in Section II.C. of this
Policy, but should be required through
their permits or other enforceable
mechanisms to comply with the nine
minimum controls (II.B), public
participation (II.C.2), and sensitive areas
(II.C.3) portions of this Policy. In
addition, the permittee may propose to
implement any of the criteria contained
in this Policy for evaluation of
alternatives described in II.C.4.
Following approval of the proposed
plan, such jurisdictions should
construct the control projects and
propose a monitoring program sufficient
to determine whether WQS are attained
and designated uses are protected.
In developing long-term CSO control
plans based on the small system
considerations discussed in the
preceding paragraph, permittees are
encouraged to discuss the scope of their
long-term CSO control plan with the
WQS authority and the NPDES
authority. These discussions will ensure
that the plan includes sufficient
information to enable the permitting
authority to identify the appropriate
CSO controls.
E. Implementation Responsibilities
NPDES authorities (authorized States
or EPA Regional Offices, as appropriate)
are responsible for implementing this
Policy. It is their responsibility to assure
that CSO permittees develop long-term
CSO control plans and that NPDES
permits meet the requirements of the
CWA. Further, they are responsible for
coordinating the review of the long-term
CSO control plan and the development
of the permit with the WQS authority to
determine if revisions to the WQS are
appropriate. In addition, they should
determine the appropriate vehicle (i.e.,
permit reissuance, information request
under CWA section 308 or State
equivalent or enforcement action) to
ensure that compliance with the CWA is
achieved as soon as practicable.
Permittees are responsible for
documenting the implementation of the
nine minimum controls and developing
and implementing a long-term CSO
control plan, as described in this Policy.
EPA recognizes that financial
considerations are a major factor
affecting the implementation of CSO
controls. For dial reason, this Policy
allows consideration of a permittee's
financial capability in connection with
the long-term CSO control planning
effort, WQS review, and negotiation of
enforceable schedules. However, each
permittee is ultimately responsible for
aggressively pursuing financial
arrangements for the implementation of
its long-term CSO control plan. As part
of this effort, communities should apply
to their State Revolving Fund program.
or other assistance programs as
appropriate, for financial assistance.
EPA and the States will undertake
action to assure that all permittees with
CSSs are subject to a consistent review
in the permit development process,
have permit requirements that achieve
compliance with the CWA, and are
subject to enforceable schedules that
require the earliest practicable
compliance date considering physical
and financial feasibility.
F. Policy Development
This Policy devotes a separate section
to each step involved in developing and
implementing CSO controls. This is not
to imply that each function occurs
separately. Rather, the entire process
surrounding CSO controls, community
planning, WQS and permit
development/revision, enforcement/
compliance actions and public
participation must be coordinated to
control CSOs effectively. Permittees and
permitting authorities are encouraged to
consider innovative and alternative
approaches and technologies that
achieve the objectives of this Policy and
the CWA.
In developing this Policy, EPA has
included information on what
responsible parties are expected to
accomplish. Subsequent documents will
provide additional guidance on how the
objectives of this Policy should be met,
These documents will provide further
guidance on: CSO permit writing, the
nine minimum controls, long-term CSC
-------
Federal Register / Vol. 59. No. 75 / Tuesday, April 19. 1994 / Notices 18691
control plans, financial capability,
sewer system characterization and
receiving water monitoring and
modeling, and application of WQS to
CSO-impacted waters. For most CSO
control efforts however, sufficient detail
has been included in this Policy to
begin immediate implementation of its
provisions.
U. EPA Objectives for Permittees
A. Overview
Permittees with CSSs that have CSOs
should immediately undertake a process
to accurately characterize their sewer
systems, to demonstrate implementation
of the nine minimum controls, and to
develop a long-term CSO control plan.
B. Implementation of the Nine
Minimum Controls
Permittees with CSOs should submit
appropriate documentation
demonstrating implementation of the
nine minimum controls, including any
proposed schedules for completing
minor construction activities. The nine
minimum controls are:
1. Proper operation and regular
maintenance programs for the sewer
system and the CSOs;
2. Maximum use of the collection
system for storage;
3. Review and modification of
pretreatment requirements to assure
CSO impacts are minimized;
4. Maximization of flow to the POTW
. for treatment;
5. Prohibition of CSOs during dry
weather;
6. Control of solid and floatable
materials in CSOs;
7. Pollution prevention;
8. Public notification to ensure that the
public receives adequate notification
of CSO occurrences and CSO impacts;
and
9. Monitoring to effectively characterize
CSO impacts and the efficacy of CSO
controls.
Selection and implementation of
actual control measures should be based
on site-specific considerations including
the specific CSS's characteristics
discussed under the sewer system
characterization and monitoring
portions of this Policy. Documentation
of the nine minimum controls may
include operation and maintenance
plans, revised sewer use ordinances for
industrial users, sewer system
inspection reports, infiltration/inflow
studies, pollution prevention programs,
public notification plans, and facility
plans for maximizing the capacities of
the existing collection, storage and
treatment systems, as well as contracts
and schedules for minor construction
programs for improving the existing
system's operation. The permittee
should also submit any information or
data on the degree to which the nine
minimum controls achieve compliance
with water quality standards. These data
and information should include results
made available through monitoring and
modeling activities done in conjunction
with the development of the long-term
CSO control plan described in this
Policy.
This documentation should be
submitted as soon as practicable, but no
later than two years after the
requirement to submit such
documentation is included in an NPDES
permit or other enforceable mechanism.
Implementation of the nine minimum
controls with appropriate
documentation should be completed as
soon as practicable but no later than
January 1,1997. These dates should be
included in an appropriate enforceable
mechanism.
Because the CWA requires immediate
compliance with technology-based
controls (section 301(b)), which on a
Best Professional Judgment basis should
include the nine minimum controls, a
compliance schedule for implementing
the nine minimum controls, if
necessary, should be included in an
appropriate enforceable mechanism.
C. Long-Tenn CSO Control Plan
Permittees with CSOs are responsible
for developing and implementing long-
term CSO control plans that will
ultimately result in compliance with the
requirements of the CWA. The long-
term plans should consider the site-
specific nature of CSOs and evaluate the
cost effectiveness of a range of control
options/strategies. The development of
the long-term CSO control plan and its
subsequent implementation should also
be coordinated with the NPDES
authority and the State authority
responsible for reviewing and revising
the State's WQS. The selected controls
should be designed to allow cost
effective expansion or cost effective
retrofitting if additional controls are
subsequently determined to be
necessary to meet WQS, including
existing and designated uses.
This policy identifies EPA's major
objectives for the long-term CSO control
plan. Permittees should develop and
submit this long-term CSO control plan
as soon as practicable, but generally
within two years after the date of the
NPDES permit provision. Section 308
information request, or enforcement
action requiring the permittee to
develop the plan. NPDES authorities
may establish a longer timetable for
completion of the long-term CSO
control plan on a case-by-case basis to
account for site-specific factors which
may influence the complexity of the
planning process. Once agreed upon,
these dates should be included in an
appropriate enforceable mechanism.
EPA expects each long-term CSO
control plan to utilize appropriate
information to address the following
minimum elements. The Plan should
also include both fixed-date project
implementation schedules (which may
be phased) and a financing plan to
design and construct die project as soon
as practicable. The minimum elements
of the long-term CSO control plan are
described below.
1. Characterization, Monitoring, and
Modeling of the Combined Sewer
System
In order to design a CSO control plan
adequate to meet the requirements of
the CWA, a permittee should have a
thorough understanding of its sewer
system, the response of the system to
various precipitation events, the
characteristics of the overflows, and the
water quality impacts that result from
CSOs. The permittee should adequately
characterize through monitoring,
modeling, and other means as
appropriate, for a range of storm events,
the response of its sewer system to wet
weather events including the number,
location and frequency of CSOs,
volume, concentration and mass of
pollutants discharged and the impacts
of the CSOs on the receiving waters and
their designated uses. The permittee
may need to consider information on
the contribution and importance of
other pollution sources in order to
develop a final plan designed to meet
water quality standards. The purpose of
the system characterization, monitoring
and modeling program initially is to
assist the permittee in developing
appropriate measures to implement the
nine minimum controls and, if
necessary, to support development of
the long-term CSO control plan. The
monitoring and modeling data also will
be used to evaluate the expected
effectiveness of both the nine minimum
controls and, if necessary, the long-term
CSO controls, to meet WQS.
The major elements of a sewer system
characterization are described below.
a. Rainfall RecordsThe permittee
should examine the complete rainfall
record for the geographic area of its
existing CSS using sound statistical
procedures and best available data. The
permittee should evaluate Dow
variations in the receiving water body to
correlate between CSOs and receiving
.vater conditions.
-------
18692
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
b. Combined Sewer System
CharacterizationThe permittee should
evaluate the nature and extent of its
sewer system through evaluation of
available sewer system records, field
inspections and other activities
necessary to understand the number,
location and frequency of overflows and
their location relative to sensitive areas
and to pollution-sources in the
collection system, such as indirect
significant industrial users.
c. CSO MonitoringThe permittee
should develop a comprehensive,
representative monitoring program that
measures the frequency, duration, flow
rate, volume and pollutant
concentration of CSO discharges and
assesses the impact of the CSOs on the
receiving waters. The monitoring
program should include necessary CSO
effluent and ambient in-stream
monitoring and, where appropriate,
other monitoring protocols such as
biological assessment, toxicity testing
and sediment sampling. Monitoring
parameters should include, for example,
oxygen demanding pollutants, nutrients,
toxic pollutants, sediment
contaminants, pathogens,
bacteriological indicators (e.g.,
Enterococcus, E. Coli), and toxicity. A
representative sample of overflow
points can be selected that is sufficient
to allow characterization of CSO
discharges and their water quality
impacts and to facilitate evaluation of
control plan alternatives.
d. ModelingModeling of a sewer
system is recognized as a valuable tool
for predicting sewer system response to
various wet weather events and
assessing water quality impacts when
evaluating different control strategies
and alternatives. EPA supports the
proper and effective use of models,
where appropriate, in the evaluation of
the nine minimum controls and the
development of the long-term CSO
control plan. It is also recognized that
there are many models which may be
used to do this. These models range
from simple to complex. Having
decided to use a model, the permittee
should base its choice of a model on the
characteristics of its sewer system, the
number and location of overflow points,
and the sensitivity of the receiving
water body to the CSO discharges. Use
of models should include appropriate
calibration and verification with field
measurements. The sophistication of the
model should relate to the complexity of
the system to be modeled and to the
information needs associated with
evaluation of CSO control options and
water quality impacts. EPA believes that
continuous simulation models, using
historical rainfall data, mav be the best
way to model sewer systems, CSOs, and
their impacts. Because of the iterative
nature of modeling sewer systems,
CSOs, and their impacts, monitoring
and modeling efforts are complementary
and should be coordinated.
2. Public Participation
In developing its long-term CSO
control plan, the permittee will employ
a public participation process that
actively involves the affected public in
the decision-making to select the long-
term CSO controls. The affected public
includes rate payers, industrial users of
the sewer system, persons who reside
downstream from die CSOs, persons
who use and enjoy these downstream
waters, and any other interested
persons.
3. Consideration of Sensitive Areas
EPA expects a permittee's long-term
CSO control plan to give the highest
priority to controlling overflows to
sensitive areas. Sensitive areas, as
determined by the NPDES authority in
coordination with State and Federal
agencies, as appropriate, include
designated Outstanding National
Resource Waters, National Marine
Sanctuaries, waters with threatened or
endangered species and their habitat,
waters with primary contact recreation,
public drinking water intakes or their
designated protection areas, and
shellfish beds. For such areas, the long-
term CSO control plan should:
a. Prohibit new or significantly
increased overflows;
b. i. Eliminate or relocate overflows
that discharge to sensitive areas
wherever physically possible and
economically achievable, except where
elimination or relocation would provide
less environmental protection than
additional treatment; or
ii. Where elimination or relocation is
not physically possible and
economically achievable, or would
provide less environmental protection
than additional treatment, provide the
level of treatment for remaining
overflows deemed necessary to meet
WQS for full protection of existing and
designated uses. In any event, the level
of control should not be less than those
described in Evaluation of Alternatives
below; and
c. Where elimination or relocation has
been proven not to be physically
possible and economically achievable,
permitting authorities should require,
for each subsequent permit term, a
reassessment based on new or improved
techniques to eliminate or relocate, or
on changed circumstances that
influence economic achievabilitv.
4. Evaluation of Alternatives
EPA expects the long-term CSO
control plan to consider a reasonable
range of alternatives. The plan should,
for example, evaluate controls that
would be necessary to achieve zero
overflow events per year, an average of
one to three, four to seven, and eight to
twelve overflow events per year.
Alternatively, the long-term plan could
evaluate controls that achieve 100%
capture, 90% capture, 85% capture,
80% capture, and 75% capture for
treatment. The long-term control plan
should also consider expansion of
POTW secondary and primary capacity
in the CSO abatement alternative
analysis. The analysis of alternatives
should be sufficient to make a
reasonable assessment of cost and
performance as described in Section
II.C.5. Because the final long-term CSO
control plan will become the basis for
NPDES permit limits and requirements,
the selected controls should be
sufficient to meet CWA requirements.
In addition to considering sensitive
areas, the long-term CSO control plan
should adopt one of the following
approaches:
a. "Presumption" Approach
A program that meets any of the
criteria listed below would be presumed
to provide an adequate level of control
to meet the water quality-based
requirements of the CWA, provided the
permitting authority determines that
such presumption is reasonable in light
of the data and analysis conducted in
the characterization, monitoring, and
modeling of the system and the
consideration of sensitive areas
described above. These criteria are
provided because data and modeling of
wet weather events often do not give a
clear picture of the level of CSO controls
necessary to protect WQS.
i. No more than an average of four
overflow events per year, provided that
the permitting authority may allow up
to two additional overflow events per
year. For the purpose of this criterion,
an overflow event is one or more
overflows from a CSS as the result of a
precipitation event that does not receive
the minimum treatment specified
below; or
ii. The elimination or the capture for
treatment of no less than 85% by
volume of the combined sewage
collected in the CSS during
precipitation events on a system-wide
annual average basis; or
iii. The elimination or removal of no
less than the mass of the pollutants,
identified as causing water quality
impairment through the sewer system
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18693
characterization, monitoring, and
modeling effort, for the volumes that
would be eliminated or captured for
treatment under paragraph ii. above.
Combined sewer flows remaining after
implementation of the nine minimum
controls and within the criteria
specified at II.C.4.a.i or ii, should
receive a minimum of:
Primary clarification (Removal of
floatables and settleable solids may be
achieved by any combination of
treatment technologies or methods that
are shown to be equivalent to primary
clarification.);
Solids and floatables disposal; and
Disinfection of effluent, if
necessary, to meet WQS, protect
designated uses and protect human
health, including removal of harmful
disinfection chemical residuals, where
necessary.
b. "Demonstration" Approach
A permittee may demonstrate that a
selected control program, though not
meeting the criteria specified in II.C.4.a.
above is adequate to meet the water
quality-based requirements of the CWA.
To be a successful demonstration, the
permittee should demonstrate each of
the following:
i. The planned control program is
adequate to meet WQS and protect
designated uses, unless WQS or uses
cannot be met as a result of natural
background conditions or pollution
sources other than CSOs;
ii. The CSO discharges remaining
after implementation of the planned
control program will not preclude the
attainment of WQS or the receiving
waters' designated uses or contribute to
their impairment. Where WQS and
designated uses are not met in part
because of natural background
conditions or pollution sources other
than CSOs, a total maximum daily load,
including a wasteload allocation and a
load allocation, or other means should
be used to apportion pollutant loads;
iii. The planned control program will
provide the maximum pollution
reduction benefits reasonably attainable;
and
iv. The planned control program is
designed to allow cost effective
expansion or cost effective retrofitting if
additional controls are subsequently
determined to be necessary to meet
WQS or designated uses.
5. Cost/Performance Considerations
The permittee should develop
appropriate cost/performance curves to
demonstrate the relationships among a
comprehensive set of reasonable control
alternatives that correspond to the
different ranges specified in Section
H.C.4. This should include an analysis
to determine where the increment of
pollution reduction achieved in the
receiving water diminishes compared to
the increased costs. This analysis, often
known as knee of the curve, should be
among the considerations used to help
guide selection of controls.
6. Operational Plan
After agreement between the
permittee and NPDES authority on the
necessary CSO controls to be
implemented under the long-term CSO
control plan, the permittee should
revise the operation and maintenance
program developed as part of the nine
minimum controls to include the
agreed-upon long-term CSO controls.
The revised operation and maintenance
program should maximize the removal
of pollutants during and after each
precipitation event using all available
facilities within the collection and
treatment system. For any flows in
excess of the criteria specified at
H.C.4.a.i.. ii. or iii and not receiving the
treatment specified in II.C.4.a, the
operational plan should ensure that
such flows receive treatment to the
greatest extent practicable.
7. Maximizing Treatment at the Existing
POTW Treatment Plant
In some communities, POTW
treatment plants may have primary
treatment capacity in excess of their
secondary treatment capacity. One
effective strategy to abate pollution
resulting from CSOs is to maximize the
delivery of flows during wet weather to
the POTW treatment plant for treatment.
Delivering these flows can have two
significant water quality benefits: First,
increased flows during wet weather to
the POTW treatment plant may enable
the permittee to eliminate or minimize
overflows to sensitive areas; second, this
would maximize the use of available
POTW facilities for wet weather flows
and would ensure that combined sewer
flows receive at least primary treatment
prior to discharge.
Under EPA regulations, the
intentional diversion of waste streams
from any portion of a treatment facility,
including secondary treatment, is a
bypass. EPA bypass regulations at 40
CFR 122.41(m) allow for a facility to
bypass some or all the flow from its
treatment process under specified
limited circumstances. Under the
regulation, the permittee must show that
the bypass was unavoidable to prevent
loss of life, personal injury or severe
property damage, that there was no
feasible alternative to the bypass and
that the permittee submitted the
reouired notices. In addition, the
regulation provides that a bypass may
be approved only after consideration of
adverse effects.
Normally, it is the responsibility of
the permittee to document, on a case-by-
base basis, compliance with 40 CFR
122.41(m) in order to bypass flows
legally. For some CSO-related permits,
the study of feasible alternatives in the
control plan may provide sufficient
support for the permit record and for
approval of a CSO-related bypass in the
permit itself, and to define the specific
parameters under which a bypass can
legally occur. For approval of a CSO-
related bypass, the long-term CSO
control plan, at a minimum, should
provide justification for the cut-off point
at which the flow will be diverted from
the secondary treatment portion of the
treatment plant, and provide a benefit-
cost analysis demonstrating that
conveyance of wet weather flow to the
POTW for primary treatment is more
beneficial than other CSO abatement
alternatives such as storage and pump
back for secondary treatment, sewer
separation, or satellite treatment. Such a
permit must define under what specific
wet weather conditions a CSO-related
bypass is allowed and also specify what
treatment or what monitoring, and
effluent limitations and requirements
apply to the bypass flow. The permit
should also provide that approval for
the CSO-related bypass will be reviewed
and may be modified or terminated if
there is a substantial increase in the
volume or character of pollutants being
introduced to the POTW. The CSO-
related bypass provision in the permit
should also make it clear that all wet
weather flows passing the headworks of
the POTW treatment plant will receive
at least primary clarification and solids
and floatables removal and disposal,
and disinfection, where necessary, and
any other treatment that can reasonably
be provided.
Under this approach, EPA would
allow a permit to authorize a CSO-
related bypass of the secondary
treatment portion of the POTW
treatment plant for combined sewer
flows in certain identified
circumstances. This provision would
apply only to those situations where the
POTW would ordinarily meet the
requirements of 40 CFR 122.41(m) as
evaluated on a case-by-case basis.
Therefore, there must be sufficient data
in the administrative record (reflected in
the permit fact sheet or statement of
basis) supporting all the requirements in
40 CFR 122.41(m)(4) for approval of an
anticipated bypass.
For the purposes of applying this
regulation to CSO permittees, "severe
property damage" could include
-------
18694
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
situations where flows above a certain
level wash out the POTW's secondary
treatment system. EPA further believes
that the feasible alternatives
requirement of the regulation can be met
if the record shows that the secondary
treatment system is properly operated
and maintained, that the system has
been designed to meet secondary limits
for flows greater than the peak dry
weather flow, plus an appropriate
quantity of wet weather flow, and that
it is either technically or financially
infeasible to provide secondary
treatment at the existing facilities for
greater amounts of wet weather flow.
The feasible alternative analysis should
include, for example, consideration of
enhanced primary treatment (e.g.,
chemical addition) and non-biological
secondary treatment. Other bases
supporting a finding of no feasible
alternative may also be available on a
case-by-case basis. As part of its
consideration of possible adverse effects
resulting from the bypass, the
permitting authority should also ensure
that the bypass will not cause
exceedances of WQS.
This Policy does not address the
appropriateness of approving
anticipated bypasses through NPDES
permits in advance outside the CSO
context.
8. Implementation Schedule
The permittee should include all
pertinent information in the long term
control plan necessary to devel'op the
construction and financing schedule for
implementation of CSO controls.
Schedules for implementation of the
CSO controls may be phased based on
the relative importance of adverse
impacts upon WQS and designated
uses, priority projects identified in the
long-term plan, and on a permittee's
financial capability.
Construction phasing should
consider:
a. Eliminating overflows that
discharge to sensitive areas as the
highest priority;
b. Use impairment;
c. The permittee's financial capability
including consideration of such factors
as:
i. Median household income;
ii. Total annual wastewater and CSO
control costs per household as a percent
of median household income;
iii. Overall net debt as a percent of
full market property value;
iv. Property tax revenues as a percent
of full market property value;
v. Property tax collection rate:
vi. Unemployment; and
vii. Bond rating;
d. Grant and loan availability;
e. Previous and current residential,
commercial and industrial sewer user
fees and rate structures; and
f. Other viable funding mechanisms
and sources of financing.
9. Post-Construction Compliance
Monitoring Program
The selected CSO controls should
include a post-construction water
quality monitoring program adequate to
verify compliance with water quality
standards and protection of designated
uses as well as to ascertain the
effectiveness of CSO controls. This
water quality compliance monitoring
program should include a plan to be
approved by the NPDES authority that
details the monitoring protocols to be
followed, including the necessary
effluent and ambient monitoring and,
where appropriate, other monitoring
protocols such as biological
assessments, whole effluent toxicity
testing, and sediment sampling.
///. Coordination With State Water
Quality Standards
A. Overview
WQS are State adopted, or Federally
promulgated rules which serve as the
goals for the water body and the legal
basis for the water quality-based NPDES
permit requirements under the CWA.
WQS consist of uses which States
designate for their water bodies, criteria
to protect the uses, an anti-degradation
policy to protect the water quality
improvements gained and other policies
affecting the implementation of die
standards. A primary objective of the
long-term CSO control plan is to meet
WQS, including the designated uses
through reducing risks to human health
and the environment by eliminating,
relocating or controlling CSOs to the
affected waters.
State WQS authorities, NPDES
authorities, EPA regional offices,
permittees, and the public should meet
early and frequently throughout the
long-term CSO control planning
process. Development of the long-term
plan should be coordinated with the
review and appropriate revision of WQS
and implementation procedures on
CSO-impacted waters to ensure that the
long-term controls will be sufficient to
meet water quality standards. As part of
these meetings, participants should
agree on the data, information and
analyses needed to support the
development of the long-term CSO
control plan and the review of
applicable WQS, and implementation
procedures, if appropriate. Agreements
should be reached on the monitoring
protocols and models that will be used
to evaluate the water quality impacts of
the overflows, to analyze the
attainability of the WQS and to
determine the water quality-based
requirements for the permit. Many
opportunities exist for permittees and
States to share information as control
programs are developed and as WQS are
reviewed. Such information should
assist States in determining the need for
revisions to WQS and implementation
procedures to better reflect the site-
specific wet weather impacts of CSOs.
Coordinating the development of the
long-term CSO control plan and the
review of the WQS and implementation
procedures provides greater assurance
that the long-term control plan selected
and the limits and requirements
included in the NPDES permit will be
sufficient to meet WQS and to comply
with sections 301(b)(D(C) and 402(a)(2)
of the CWA.
EPA encourages States and permittees
jointly to sponsor workshops for the
affected public in the development of
the long-term CSO control plan and
during the development of appropriate
revisions to WQS for CSO-impacted
waters. Workshops provide a forum for
including the public in discussions of
the implications of the proposed long-
term CSO control plan on the water
quality and uses for the receiving water.
B. Water Quality Standards Reviews
The CWA requires States to
periodically, but at least once every
three years, hold public hearings for the
purpose of reviewing applicable water
quality standards and, as appropriate,
modifying and adopting standards.
States must provide the public an
opportunity to comment on any
proposed revision to water quality
standards and all revisions must be
submitted to EPA for review and
approval.
EPA regulations and guidance provide
States with the flexibility to adapt their
WQS, and implementation procedures
to reflect site-specific conditions
including those related to CSOs. For
example, a State may adopt site-specific
criteria for a particular pollutant if the
State determines that the site-specific
criteria fully protects the designated use
(40 CFR 131.11). In addition, the
regulations at 40 CFR 131.10(g], (h), and
(j) specify when and how a designated
use may be modified. A State may
remove a designated use from its water
quality standards only if the designated
use is not an existing use. An existing
use is a use actually attained in the
water body on or after November 28,
1975. Furthermore, a State may not
remove a designated use that will be
attained by implementing the
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18695
technology-based effluent limits
required under sections 301(b) and 306
of the CWA and by implementing cost-
effective and reasonable best
management practices for nonpoint
source controls. Thus, if a State has a
reasonable basis to determine that the
current designated use could be attained
after implementation of the technology-
based controls of the CWA, then the use
could not be removed.
In determining whether a use is
attainable and prior to removing a
designated use. States must conduct and
submit to EPA a use attainability
analysis. A use attainability analysis is
a structured scientific assessment of the
factors affecting the use, including the
physical, chemical, biological, and
economic factors described in 40 CFR
131.10(g). As part of the analysis. States
should evaluate whether the designated
use could be attained if CSO controls
were implemented. For example, States
should examine if sediment loadings
from CSOs could be reduced so as not
to bury spawning beds, or if
biochemical oxygen demanding material
in the effluent or the toxicity of the
effluent could be corrected so as to
reduce the acute or chronic
physiological stress on or
bioaccumulation potential of aquatic
organisms.
In reviewing the attainability of their
VVQS and the applicability of.their
implementation procedures to CSO-
impacted waters. States are encouraged
to define more explicitly their
recreational and aquatic life uses and
then, if appropriate, modify the criteria
accordingly to protect the designated
uses.
Another option is for States to adopt
partial uses by defining when primary
contact recreation such as swimming
does not exist, such as during certain
seasons of the year in northern climates
or during a particular type of storm
event. In making such adjustments to
their uses, States must ensure that
downstream uses are protected, and that
during other seasons or after the storm
event has passed, the use is fully
protected.
In addition to defining recreational
uses with greater specificity, States are
also encouraged to define the aquatic
uses more precisely. Rather than
"aquatic life use protection," States
should consider defining the type of
fishery to be protected such as a cold
water fishery (e.g., trout or salmon] or a
warm weather fishery (e.g., bluegill or
large mouth bass). Explicitly defining
the type of fishery to be protected may
assist the permittee in enlisting the
support of citizens for a CSO control
A water quality standard variance
may be appropriate, in limited
circumstances on CSO-impacted waters,
where the State is uncertain as to
whether a standard can be attained and
time is needed for the State to conduct
additional analyses on the attainability
of the standard. Variances are short-term
modifications in water quality
standards. Subject to EPA approval,
States, with their own statutory
authority, may grant a variance to a
specific discharger for a specific
pollutant. The justification for a
variance is similar to that required for
a permanent change in the standard,
although the showings needed are less
rigorous. Variances are also subject to
public participation requirements of the
water quality standards and permits
programs and are reviewable generally
every three years. A variance allows the
CSO permit to be written to meet the
'"modified" water quality standard as
analyses are conducted and as progress
is made to improve water quality.
Justifications for variances are the
same as those identified in 40 CFR
131.10(g) for modifications in uses.
States must provide an opportunity for
public review and comment on all
variances. If States use the permit as the
vehicle to grant the variance, notice of
the permit must clearly state that the
variance modifies the State's water
quality standards. If the variance is
approved, the State appends the
variance to the State's standards and
reviews the variance every three years.
IV. Expectations for Permitting
Authorities
A. Overview
CSOs are point sources subject to
NPDES permit requirements including
both technology-based and water
quality-based requirements of the CWA.
CSOs are not subject to secondary
treatment regulations applicable to
publicly owned treatment works
(Montgomery Environmental Coalition
vs. Costle, 646 F.2d 568 (D.C. Cir.
1980)).
All permits for CSOs should require
the nine minimum controls as a
minimum best available technology
economically achievable and best
conventional technology (BAT/BCT)
established on a best professional
judgment (BPJ) basis by the permitting
authority (40 CFR 125.3). Water quality-
based requirements are to be established
based on applicable water quality
standards.
This policy establishes a uniform,
nationally consistent approach to
developing and issuing NPDES permits
to permittees with CSOs. Permits for
CSOs should be developed and issued
expeditiously. A single, system-wide
permit generally should be issued for all
discharges, including CSOs, from a CSS
operated by a single authority. When
different parts of a single CSS are
operated by more than one authority,
permits issued to each authority should
generally require joint preparation and
implementation of the elements of this
Policy and should specifically define
the responsibilities and duties of each
authority. Permittees should be required
to coordinate system-wide
implementation of the nine minimum
controls and the development and
implementation of the long-term CSO
control plan.
The individual authorities are
responsible for their own discharges and
should cooperate with the permittee for
the POTW receiving the flows from the
CSS. When a CSO is permitted
separately from the POTW, both permits
should be cross-referenced for
informational purposes.
EPA Regions and States should
review the CSO permitting priorities
established in the State CSO Permitting
Strategies developed in response to the
1989 Strategy. Regions and States may
elect to revise these previous priorities.
In setting permitting priorities. Regions
and States should not just focus on
those permittees that have initiated
monitoring programs. When setting
priorities. Regions and States should
consider, for example, the known or
potential impact of CSOs on sensitive
areas, and the extent of upstream
industrial user discharges to the CSS.
During the permittee's development
of the long-term CSO control plan, the
permit writer should promote
coordination between the permittee and
State WQS authority in connection with
possible WQS revisions. Once the
permittee has completed development
of the long-term CSO control plan and
has coordinated with the permitting
authority the selection of the controls
necessary to meet the requirements of
the CWA, the permitting authority
should include in an appropriate
enforceable mechanism, requirements
for implementation of the long-term
CSO control plan, including conditions
for water quality monitoring and
operation and maintenance.
B. NPDES Permit Requirements
Following are the major elements of
NPDES permits to implement this
Policy and ensure protection of water
aualitv.
-------
18696
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
1. Phase I PermitsRequirements for
Demonstration of Implementation of the
Nine Minimum Controls and
Development of the Long-Tenn CSO
Control Plan
In the Phase I permit issued/modified
to reflect this Policy, the NPDES
authority should at least require
permittees to:
a. Immediately implement BAT/BCT,
which at a minimum includes the nine
minimum controls, as determined on a
BPJ basis by the permitting authority;
b. Develop and submit a report
documenting the implementation of the
nine minimum controls within two
years of permit issuance/modification;
c. Comply with applicable WQS, no
later than the date allowed under the
State's WQS, expressed in the form of a
narrative limitation; and
d. develop and submit, consistent
with this Policy and based on a
schedule in an appropriate enforceable
mechanism, a long-term CSO control
plan as soon as practicable, but
generally within two years after the
effective date of the permit issuance/
modification. However, permitting
authorities may establish a longer
timetable for completion of the long-
term CSO control plan on a case-by-case
basis to account for site-specific factors
that may influence the complexity of the
planning process.
The NPDES authority should include
compliance dates on the fastest
practicable schedule for each of the nine
minimum controls in an appropriate
enforceable mechanism issued in
conjunction with the Phase I permit.
The use of enforceable orders is
necessary unless Congress amends the
CWA. All orders should require
compliance with the nine minimum
controls no later than January 1,1997.
2. Phase II PermitsRequirements for
Implementation of a Long-Term CSO
Control Plan
Once the permittee has completed
development of the long-term CSO
control plan and the selection of the
controls necessary to meet CWA
requirements has been coordinated with
the permitting and WQS authorities, the
permitting authority should include, in
an appropriate enforceable mechanism,
requirements for implementation of the
long-term CSO control plan as soon as
practicable. Where the permittee has
selected controls based on the
"presumption" approach described in
Section II.C.4, the permitting authority
must have determined that the
presumption that such level of
treatment will achieve water quality
standards is reasonable in light of the
data and analysis conducted under this
Policy. The Phase II permit should
contain:
a. Requirements to implement the
technology-based controls including the
nine minimum controls determined on
a BPJ basis;
b. Narrative requirements which
insure that the selected CSO controls are
implemented, operated and maintained
as described in the long-term CSO
control plan;
c. Water quality-based effluent limits
under 40 CFR 122.44(d)(l) and
122.44(k), requiring, at a minimum.
compliance with, no later than the date
allowed under the State's WQS, the
numeric performance standards for the
selected CSO controls, based on average
design conditions specifying at least one
of the following:
i. A maximum number of overflow
events per year for specified design
conditions consistent with II.C.4.a.i; or
ii. A minimum percentage capture of
combined sewage by volume for
treatment under specified design
conditions consistent with II.C.4.a.ii; or
iii. A minimum removal of the mass
of pollutants discharged for specified
design conditions consistent with
II.C.4.a.iii; or
iv. performance standards and
requirements that are consistent with
II.C.4.b. of the Policy.
d. A requirement to implement, with
an established schedule, the approved
post-construction water quality
assessment program including
requirements to. monitor and collect
sufficient information to demonstrate
compliance with WQS and protection of
designated uses as well as to determine
the effectiveness of CSO controls.
e. A requirement to reassess overflows
to sensitive areas in those cases where
elimination or relocation of the
overflows is not physically possible and
economically achievable. The
reassessment should be based on
consideration of new or improved
techniques to eliminate or relocate
overflows or changed circumstances
that influence economic achievability;
f. Conditions establishing
requirements for maximizing the
treatment of wet weather flows at the
POTW treatment plant, as appropriate,
consistent with Section II.C.7. of this
Policy;
g. A reopener clause authorizing the
NPDES authority to reopen and modify
the permit upon determination that the
CSO controls fail to meet WQS or
protect designated uses. Upon such
determination, the NPDES authority
should promptly notify the permittee
and proceed to modify or reissue the
permit. The permittee should be
required to develop, submit and
implement, as soon as practicable, a
revised CSO control plan which
contains additional controls to meet
WQS and designated uses. If the initial
CSO control plan was approved under
the demonstration provision of Section
II.C.4.b., the revised plan, at a
minimum, should provide for controls
that satisfy one of the criteria in Section
II.C.4.a. unless the permittee
demonstrates that the revised plan is
clearly adequate to meet WQS at a lower
cost and it is shown that the additional
controls resulting from the criteria in
Section II.C.4.a. will not result in a.
greater overall improvement in water
quality.
Unless the permittee can comply with
all of the requirements of the Phase II
permit, the NPDES authority should
include, in an enforceable mechanism,
compliance dates on the fastest
practicable schedule for those activities
directly related to meeting the
requirements of the CWA. For major
permittees, the compliance schedule
should be placed in a judicial order.
Proper compliance with the schedule
for implementing the controls
recommended in the long-term CSO
control plan constitutes compliance
with the elements of this Policy
concerning planning and
implementation of a long term CSO
remedy.
3. Phasing Considerations
Implementation of CSO controls may
be phased based on the relative
importance of and adverse impacts
upon WQS and designated uses, as well
as the permittee's financial capability
and its previous efforts to control CSOs.
The NPDES authority should evaluate
the proposed implementation schedule
and construction phasing discussed in
Section II.C.8. of this Policy. The permit
should require compliance with the
controls proposed in the long-term CSO
control plan no later than the applicable
deadline(s) under the CWA or State law.
If compliance with the Phase n permit
is not possible, an enforceable schedule,
consistent with the Enforcement and
Compliance Section of this Policy,
should be issued in conjunction with
the Phase n permit which specifies the
schedule and milestones for
implementation of the long-term CSO
control plan.
V. Enforcement and Compliance
A. Overview
It is important that permittees act
immediately to take the necessary steps
to comply with the CWA. The CSO
enforcement effort '.viil commence with
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18697
an initiative to address CSOs that
discharge during dry weather, followed
by an enforcement effort in conjunction
with permitting CSOs discussed earlier
in this Policy. Success of the
enforcement effort will depend in large
part upon expeditious action by NPDES
authorities in issuing enforceable
permits that include requirements both
for the nine minimum controls and for
compliance with all other requirements
of the CWA. Priority for enforcement
actions should be set based on
environmental impacts or sensitive
areas affected by CSOs.
As a further inducement for
permittees to cooperate with this
process, EPA is prepared to exercise its
enforcement discretion in determining
whether or not to seek civil penalties for
past CSO violations if permittees meet
the objectives and schedules of this
Policy and do not have CSOs during dry
weather.
B. Enforcement of CSO Dry Weather
Discharge Prohibition
EPA intends to commence
immediately an enforcement initiative
against CSO permittees which have
CWA violations due to CSOs during dry
weather. Discharges during dry weather
have always been prohibited by the
NPDES program. Such discharges can
create serious public health and water
quality problems. EPA will use its CWA
Section 308 monitoring, reporting, and
inspection authorities, together with
NPDES State authorities, to locate these
violations, and to determine their
causes. Appropriate remedies and
penalties will be sought for CSOs during
dry weather. EPA will provide NPDES
authorities more specific guidance on
this enforcement initiative separately.
C. Enforcement of Wet Weather CSO
Requirements
Under the CWA, EPA can use several
enforcement options to address
permittees with CSOs. Those options
directly applicable to this Policy are
section 308 Information Requests,
section 309(a) Administrative Orders,
section 309(g) Administrative Penalty
Orders, section 309 (b) and (d) Civil
Judicial Actions, and section 504
Emergency Powers. NPDES States
should use comparable means.
NPDES authorities should set
priorities for enforcement based on
environmental impacts or sensitive
areas affected by CSOs. Permittees that
have voluntarily initiated monitoring
and are progressing expeditiously
toward appropriate CSO controls should
be given due consideration for their
efforts.
1. Enforcement for Compliance With
Phase I Permits
Enforcement for compliance with
Phase I permits will focus on
requirements to implement at least the
nine minimum controls, and develop
the long-term CSO control plan leading
to compliance with the requirements of
the CWA. Where immediate compliance
with the Phase I permit is infeasible. the
NPDES authority should issue an
enforceable schedule, in concert with
the Phase I permit, requiring
compliance with the CWA and
imposing compliance schedules with
dates for each of the nine minimum
controls as soon as practicable. All
enforcement authorities should require
compliance with the nine minimum
controls no later than January l, 1997.
Where the NPDES authority is issuing
an order with a compliance schedule for
the nine minimum controls, this order
should also include a schedule for
development of the long-term CSO
control plan.
If a CSO permittee fails to meet the
final compliance date of the schedule.
the NPDES authority should initiate
appropriate judicial action.
2. Enforcement for Compliance With
Phase II Permits
The main focus for enforcing
compliance with Phase II permits will
be to incorporate the long-term CSO.
control plan through a civil judicial
action, an administrative order, or other
enforceable mechanism requiring
compliance with the CWA and
imposing a compliance schedule with
appropriate milestone dates necessary to
implement the plan.
In general, a judicial order is the
appropriate mechanism for
incorporating the above provisions for
Phase n. Administrative orders,
however, may be appropriate for
permittees whose long-term control
plans will take less than five years to
complete, and for minors that have
complied with the final date of the
enforceable order for compliance with
their Phase I permit. If necessary, any of
the nine minimum controls that have
not been implemented by this time
should be included in the terms of the
judicial order.
D. Penalties
EPA is prepared not to seek civil
penalties for past CSO violations, if
permittees have no discharges during
dry weather and meet the objectives and
schedules of this Policy.
Notwithstanding this, where a permittee
has other significant CWA violations for
which EPA or the State is taking judicial
action, penalties may be considered as
part of that action for the following:
1. CSOs during dry weather;
2. Violations of CSO-related
requirements in NPDES permits;
consent decrees or court orders which
predate this policy; or
3. Other CWA violations.
EPA will not seek penalties for past
CSO violations from permittees that
fully comply with the Phase I permit or
enforceable order requiring compliance
with the Phase I permit. For permittees
that fail to comply, EPA will exercise its
enforcement discretion in determining
whether to seek penalties for the time
period for which the compliance
schedule was violated. If the milestone
dates of the enforceable schedule are no;
achieved and penalties are sought,
penalties should be calculated from the
last milestone date that was met.
At the time of the judicial settlement
imposing a compliance schedule
implementing the Phase II permit
requirements. EPA will not seek
penalties for past CSO violations from
permittees that fully comply with the
enforceable order requiring compliance
with the Phase I permit and if the terms
of the judicial order are expeditiously
agreed to on consent. However,
stipulated penalties for violation of the
judicial order generally should be
included in the order, consistent with
existing Agency policies. Additional
guidance on stipulated penalties
concerning long-term CSO controls and
attainment of WQS will be issued.
Paperwork Reduction Act
The information collection
requirements in this policy have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq
and have been assigned OMB control
number 2040-0170.
This collection of information has an
estimated reporting burden averaging
578 hours per response and an
estimated annual recordkeeping burden
averaging 25 hours per recordkeeper.
These estimates include time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden to
Chief. Information Policy Branch; EPA:
401 M Street SW. (Mail Code 2136);
Washington. DC 20460: and to the
Office of Information and Regulatory
Affairs. Office of Management and
-------
18698 Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
Budget, Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
IFR Doc. 94-9295 Filed 4-18-94; 8:45 am)
BILLING CODE 6560-60-P
-------
VI.O.2
"January 1,1997, Deadline for Nine Minimum Controls in Combined Sewer Control
Policy", November 18,1996.
-------
$
I*.
\
III
a
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV 1 8 1996
MEMORANDUM
SUBJECT:
FROM:
January 1, 1997, Deadline for Nine Minimum Controls in
Combined Sewer Overflow Control Policy
Robert Perciasepe /
Assistant Adm^n/ist;?
*F
TO:
mistrator
ntorcement and Compliance Assurance
Water Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
State Directors
The purpose of this memorandum is to call your attention to
the January 1, 1997, deadline for implementation of the nine
minimum controls by National Pollutant Discharge Elimination
System (NPDES) permittees that have combined sewer systems.
Implementation of the nine minimum controls is the first key
milestone identified in the Combined Sewer Overflow Control
Policy (CSO Policy) and is a top Agency priority. We emphasize
the importance of meeting this deadline, and we urge you to take
the steps necessary to achieve it. '
On April 19, 1994, EPA published its Combined Sewer Overflow
(CSO) Control Policy in the Federal Register (59 FR 18688). The
CSO Policy was developed during a negotiated policy dialogue
which included representatives from States, environmental groups,
and municipal organizations. CSOs consist of mixtures of
sanitary sewage, industrial wastewater and storm water runoff.
During storm events, a major portion of the combined flow may be
discharged untreated into the receiving water. As noted in the
CSO Policy (59 FR at 18689) :
CSOs can cause exceedances of water quality
standards (WQS). Such exceedances may pose risks
to human health, threaten aquatic life and its
habitat, and impair the use and enjoyment of the
Nation's waterways.
The CSO Policy describes a phased process for achieving
control of CSOs and compliance with the. technology-based and
water quality-based requirements of the Clean Water Act. The
.; _- Recycled/Recyclable
"~." ''\ Printed with Soy/Canola Ink on paper thai
.~~. ^~ contains at least 50% recycled (IDer
-------
first phase involves prompt implementation of best available
technology economically achievable (BAT)/best conventional
pollutant control technology (BCT). At a minimum, BAT/BCT
includes the nine minimum controls, as determined on a best
professional judgment (BPJ) basis by the permitting authority.
The first phase also includes development of a long-term CSO
control plan that will provide for attainment of water quality
standards (WQS).
The nine minimum controls are measures that can reduce CSOs
and their effects on receiving water quality and that should not
require significant engineering studies or major construction.
They are as follows:
* Proper operation and maintenance;
* Maximum use of the collection system for storage;
* Review and modification of pretreatment requirements;
* Maximization of flow to the publicly owned treatment
works (POTW) for treatment;
* Prohibition of CSOs during dry weather;
* Control of solid and floatable materials in CSOs;
* Pollution prevention;
* Public notification of CSO occurences and impacts;
* Monitoring of CSO impacts and the efficacy of CSO
controls. See 59 FR at 18691.
The nine minimum controls are to be implemented, with appropriate
documentation, "as soon as practicable but no later than
January 1, 1997." 59 FR at 18691.
EPA's guidance Combined Sewer Overflows: Guidance for Nine
Minimum Controls (EPA-832-B-95-003, May 1995) discusses how to
implement the nine minimum controls and to document their
implementation. This document may be obtained through EPA's
Water Resource Center (Tel. 202-260-7786) (E-mail
waterpubs@epamail.epa.gov) or through the National Small Flows
Clearinghouse (Tel. 1-800-624-8301).
As already noted, implementation of the nine minimum
controls is a top Agency priority, and we believe it is an
essential component of a municipality's CSO control program. We
intend to track the status of implementation closely during FY
1997 through a CSO program performance plan developed under the
Government Performance and Results Act. Under the performance
plan, EPA Regional and State permitting authorities will be
expected to compile and report data to EPA Headquarters during
the second quarter of FY 1997, and periodically thereafter,
regarding various aspects of CSO program implementation,
including implementation of the nine minimum controls by their
CSO communities.
-------
The CSO Policy contemplates that implementation of the nine
minimum controls should become an enforceable obligation through
inclusion in "an appropriate enforceable mechanism." 59 FR at
18691. For those permits subject to renewal before January 1,
1997, the new permits should include a provision requiring
implementation of the nine minimum controls by January 1, 1997.
For permits not subject to renewal before January 1, 1997, the
permitting authority should reopen the current permit to add a
provision requiring implementation of the nine minimum controls
by January 1, 1997, if cause exists pursuant to 40 CFR 122.62(a)
or (b) or analogous State regulations. An administrative order
to require implementation of the nine minimum controls would
normally be appropriate in instances where the CSO permittee is
in violation of a permit condition, including violation of a
permit limit incorporating narrative standards (such as no
discharge of floatables, or no discharge of toxics in toxic
amounts) or where there is a violation of a permit condition
prohibiting exceedance of a numeric State water quality standard.
EPA has encouraged permittees to move forward to implement
the nine minimum controls prior to inclusion of such a
requirement in a permit or other enforceable mechanism, and we
recognize that many communities have made significant progress in
implementing the nine minimum controls and in developing or
implementing long-term control plans. Permittees should be
reminded that EPA's approach, as stated in the CSO Policy, not to
seek civil penalties for past CSO violations will not apply
unless the nine minimum controls are implemented by January 1,
1997. See 59 FR at 18697.
EPA Regions and States are encouraged to continue compliance
assistance efforts to ensure implementation of the nine minimum
controls by January 1, 1997.
If you have questions concerning this memorandum, please
contact either John Lyon of the Office of Regulatory Enforcement
(Tel. 202-564-4051) or Ross Brennan of the Office of Wastewater
Management (Tel. 202-260-6928).
-------
VII.
-------
VII. ANNUAL DOCUMENTS AND SHORT-TERM INITIATIVES
-------
VII.1,
VII.2,
VII.1. "EPA Agency Operating Guidance - FT 1986-1987", dated
February 1985.** EXPIRED. Effective through September
30, 1986.
VII.2. "FY86 Guidance For Oversight Of NPDES Programs", dated
June 28, 1985.** EXPIRED. Effective through
September 30, 1986.
-------
-------
VII.3.
"NATIONAL MUNICIPAL POLICY ENFORCEMENT INITIATIVE", dated August 9, 1985.
Attachments excluded.
-------
-------
NITED' STATES ENVIRONMENTAL Pf\GiEC»IGN AGENCY
WASHINGTON. D.C. 20460
OFFICE OF
WATER
£U3 9 1985
MEMORANDUM
SUBJECT: National Municipal Policy Enforcement
FROM: J. William Jordan, Director
Enforcement Division (EN-338)
Glenn L. Unterberger
Associate Enforcement Counsel
for Water (LE-134W)
TO: Regional Water Management Division Directors
Regional Counsels
Regions I-X
In order to focus nationwide attention on the July 1, 1988
compliance deadline for POTWs, we are preparing an enforcement
initiative for the National Municipal Policy (NMP). We expect that
grouping a number of well-selected cases into an enforcement
initiative will advance substantially the Environmental Protection
Agency's (EPA) efforts to obtain compliance by the deadline. We
seek your participation in this initiative. The filing of cases in
this initiative is tentatively scheduled for the first quarter of
FY 1986. The purpose of this memorandum is to request a list of
candidates from all Regions for the enforcement initiative. Based
on the information available at Headquarters, we have generated a
preliminary list for your review and revision. This memorandum also.
describes the criteria to be used in selecting candidates and a
proposed schedule for implementing the NMP enforcement initiative.
An NMP enforcement,initiative was discussed at the National
Branch Chiefs' meeting in May of this year and in subsequent
conference calls with all Regions participating. At the Branch-
Chiefs' meeting, all Regions were asked by Rebecca Hanmer to develop
a preliminary list of enforcement initiative candidates. To date,
we have received such lists from two Regions. Several other Regions
are still actively preparing these lists, since in many cases,
Municipal Compliance Plans (MCPs) were not due to be submitted until
June of this year. if we are to have a successful enforcement
initiative which demonstrates EPA's resolve to hold to the 1988
compliance deadline, we must be prepared to back this resolve
through aggressive enforcement. The enforcement initiative will
clearly demonstrate the importance the Agency places on municipal
compliance.
-------
Purpose of the Initiative
/
The purpose of this initiative is to send a message to both
those municipalities already committed to a July 1, 1988 schedule
and those municipalities which have not, that EPA is serious about
the deadline. State inventories have identified many POTWs which
need construction to comply with permit limits. While many of these
municipalities have agreed to a schedule requiring compliance with
the July 1, 1988 deadline, it appears that a significant number have
not submitted schedules and that a number of POTWs plan to submit
schedules which extend beyond July 1, 1988. If EPA is to maintain
a credible and evenhanded approach to all municipalities, we must be
prepared to address those municipalities where the deadline will not
be met or, as in many cases, is not even being taken seriously.
Scope of Enforcement Initiative
Under this initiative the following factors should be applied
to select POTWs for action:
The POTW is currently in violation of permit requirements.
- Major construction is needed to achieve compliance.
The municipality has not submitted a required MCP, has
submitted a deficient MCP, or has included a schedule which
extends beyond the July 1, 1988 deadline. It is preferable t4
include POTWs which appear to be capable of meeting the
deadline so we can reinforce its importance.
It should be clear for each selected POTW what effluent limits
are required; therefore, any 301(h), revised WQS, or redefined
secondary issue should already be resolved.
- Selected facilities should be major permittees and, wherever
possible, be larger municipalities to send as strong a signal
as possible (i.e., 10 MGD and greater).
All municipalities which have received State administrative
extensions beyond the July 1, 1988 deadline should
automatically.be considered for inclusion in this initiative.
Municipalities where it may be physically impossible to
complete construction by July 1, 1988 should not be excluded
from consideration. All such POTWs must be submitted for
judicial action if the schedule extends beyond July 1, 1988,
though not necessarily under thi§ initiative.
- Municipalities where there is uncertainty as to the financial
capabilities for construction should not be excluded.
Financial experts funded through HQ are available to augment
Regional analysis of the financial situation of municipalities
- Municipalities which have proven to be recalcitrant should be
considered first.
-------
- 3 -
This initiative is intended to help ensure that EPA is taking
serious enforcement action against facilities which have not
received Federal construction grant funding. Nevertheless, EPA
should also be taking enforcement action against POTWs which have
received grants or are in the grants process consistent with the
priorities set out in the National Municipal Policy and the April
1984 implementation guidance.
As a first step in helping to define the universe of possible
candidates for this initiative, we have completed a search of the
national Permit Compliance System (PCS) to identify those POTWs
which, based on effluent data, appear to need major construction of
treatment facilities. The POTWs with the most consistent and
largest effluent violations were then cross-referenced with the
national inventory of NHP POTWs submitted by each Region to
identify those which have not committed to an acceptable compliance
schedule. It appears from this preliminary review that there are a
number of good candidates in all Regions for the NMP initiative.
Since the PCS does not contain effluent data for all facilities in
many Regions, the attached list should in no way be considered a
complete list of possible candidates. Each Region should review
the list and verify possible candidates and add any other
candidates which may be appropriate to consider. If any of the
candidates should not be included because the State will bring the
judicial action before December 15, 1985, then indicate so and give
an approximate date for the State action. Candidates should not be
rejected unless the State filing is projected prior to the Federal
filing date. Ultimately, we are looking to file at least a couple
of the best cases in each Region as a part of this initiative so as
to send a truly national message to the POTW community.
Schedule for the NMP Enforcement Initiative
1. Regions review attached list, making August 23, 1985
additions and deletions, and submit
preliminary list to Headquarters OWEP.
2. Regions review submitted MCP schedules September 15, 1985
as they come into identify final
candidates. Submit list of probable
final candidates.
3. Submit litigation reports for final November 1, 1985
candidates to Headquarters.
4. Approximate DOJ filing date. December 15, 1985
We will be working closely with the Department of Justice to
assure that the NMP enforcement initiative cases are quickly moved
through the referral system. Where effluent violations have
occurred, it will be particularly helpful to make sure that the
necessary documentation, such as DMRs, are assembled to include in
litigation reports and that inspections are conducted whera
necessary to confirm the extent of the violations and the
compliance measures likely to be needed.
-------
Any problems which will need expert contractor assistance to
resolve, such as physical or financial capability questions,
should be identified as early as possible. Regions need not have
the final answers from the contractor review of the financial or
physical factors before submitting referral packages to Head-
quarters. Since it is expected that this support will be needed in
many of the cases, it will probably be an ongoing process before
and after filing. The contact person for this assistance is Brian
Maas of the Enforcement Support Branch (FTS 475-8322).
We realize that the above schedule will require a significant
commitment from Regional Water Programs and Regional Counsels
Offices, as well as Headquarters EPA and Department of Justice
Offices; however, this initiative is critical to accomplishing the
major goals of the National Municipal Policy. If you have any
questions or comments on the enforcement initiative, please contact
either of us. If you desire any additional information on the
attached lists call David Lyons, Chief of the Enforcement Support
Branch (FTS 475-8310.) or Brian Maas. Please submit the preliminary
list to David Lyons. Caroline Poplin (FTS 475-8184) will serve as
the OECM staff contact.
Attachment
cc: William Whittington
-------
VII - 4 through 12
VII. ANNUAL DOCUMENTS AND SHORT-TERM INITIATIVES
4. "A Guide To The Office Of Water Accountability System
And Mid-Year Evaluations", dated September, 1985.**
EXPIRED. Effective through September 30, 1986 only.
5. "EPA Agency Operating Guidance - FY 1987, dated March
1986".** EXPIRED.
6. "A Guide To The Office Of Water Accountability System
And Mid-Year Evaluations-Fiscal Year 1987*, dated
March 1986.** EXPIRED.
7. "FY87 Guidance For Oversight Of NPDES Programs", dated
April 18, 1986.** EXPIRED.
8. "EPA Agency Operating Guidance- FY 1988" dated
March, 1987.** Selected portions only. EXPIRED.
9. "GUIDANCE FOR OVERSIGHT OF NPDES PROGRAMS", dated
May, 1'987 (This document is reproduced at 1.7.,
this Compendium).
10. "Guidance for the FY 1988 State/EPA Enforcement
Agreements Process", dated April 31 (sic), 1987.
EXPIRED.
11. VMtaide TO The Office Of Water Accountability
System And Mid-Year Evaluations, Fiscal Year
1988", dated May/ 1987. Selected portions
only. EXPIRED.
12. "FY 1988 Office Of Water Operating Guidance",
dated June, 1987. Selected portions only. EXPIRED.
-------
-------
vn.i3
"FY 1989 Office of Water Operating Guidance", dated March 1988, Selected Portions
Only.
-------
United States Office of March 1968
Environmental Protection the Administrator
Agency Wuhington. D.C
O-EPA Agency
Operating Guidance
FY1989
-------
-------
Office of
Water
-------
-------
TABLE OF CONTENTS
I. ASSISTANT ADMINISTRATOR'S OVERVIEW 1
A. Program Directions and Priorities 2
B* Managemer.t Principles 3
C. Control" ng the Discharge of Surface Water 5
Toxicants
0. State Clean Water Strategies 6
E. Flexibility-Accountability 7
II. ENVIRONMENTAL PROBLEMS 8
A. PROTECTING OUR SOURCES OF DRINKING WATER 8
1. Strategy 8
2. Indicators 10
3. Activities 10
a. Public Water System Supervision 10
b. Ground-Water Protection 14
c. Underground Injection Control 17
B. PROTECTISG CRITICAL HABITATS 20
1. Strategy . 20
2. Indicators 22
3. Activities 22
a. Ocean Disposal Site Permitting and Discharge 22
b. Near Coastal Waters/National Estuary Program 24
c. Chesapeake Bay 27
d. Great Lakes ' 28
e. Lake Management 30
f. Wetlands 31
C. PROTECTING SURFACE WATERS 34
1. Strategy 34
2. Indicators 35
3. Activities 35
a. Water Quality Standards 35
b. Water Quality Monitoring and Analysis 37
c. Water Quality Management Planning 39
d. Nonpoint Source 40
e. NPDES Permitting 41
f. NPDES Enforcement 44
g. Pretreatment 45
"7.
-------
-2-
TABLE OP CONTENTS (CONTINUED)
C. PROTECTING SURFACE WATERS (CONT.D)
h. NPDES State Program Approval, Review and 48
' Oversight .
i. Municipal Wastewater Transition to State/ 49
Local Self-Sufficiency
j. Construction Grants Management 51
1c. POTW Technological Evaluation and 52
Information Transfer
1. Municipal Wastewater Infrastructure 54
Protection
III. REGIONAL INITIATIVES 55
-------
FY 1989 WATER PROGRAMS AGENCY OPERATING GUIDANCE
*?. -
^> . .
Z. ASSISTANT ADMINISTRATOR'S OVERVIEW
The Water. Programs portion of the FY 1989 Operating Guidance
provides national direction to EPA, States and the regulated
community in carrying out programs mandated under Federal water
protection statutes. These statutes include: the Safe Drinking
Water Act (SDWA), the Clean Water Act (CWA, as newly amended
by the Water Quality Act of 1987) and the Marine Protection,
Research and Sanctuaries Act (MPRSA). The Agency and the States
also implement programs to protect groundwater quality through
authorizations unde»- several different statutes.
The Office of Water (OW) uses a management accountability system
to set priorities, define performance expectations, and track
and assess Regional and State performance. The Office of Water
Accountability System (OWAS) includes the OW portion of the
Guidance, the accompanying SPMS measures* the OW program eval-
uation guide with quantitative and qualitative measures/ and the
OW mid-year Regional evaluations. As part of the mid-year process,
the Regions provide the OW Assistant Administrator with their
projected operating strategy and plan for FY 1990, including an
overview of Regional and State priorities and their relationship
to national priorities. This is done before FY 1990 commitments
a*»e made to set the context for negotiation >t State work pro-
grams and those commitments. The Regions p- ;sent their plans at
the time of the senior management review fo*- the FY 1989 mid-year
evaluation and, as described in Section III, negotiate specific
Regional projects prior to the beginning of «.he fiscal year.
Part I of this Guidance outlines the major program directions
for Water programs in FY 1989, and describes three major program
concerns: controlling the discharge of toxic pollutants into
surface waters, developing State Clean Water Strategies, and
ensuring program accountability while providing Regions and
States with flexibility to address their particular concerns.
Part II contains specific program guidance and priority activi-
ties for the water programs organized by three problem areas
around which OW has structured its FY 1989 program planning.
Part III provides the process through which Regions negotiate
Region-specific initiatives for FY 1989.
Activities with associated SPMS measures are denoted by CSPMS3
appearing at the end of the activities. Additionally, in line
with the Agency format, activities increased f~om the FY 1988
Operating Guidance are indicated by a .plus (+) in the left margin,
new activities are indicated by the letter (N), and decreased
activities are indicated by a dash (-). Ho notation indicates
that the activity is the same as in FY 1988.
-------
-2-
A. PROGRAM-DIRECTIONS AND PRIORITIES
Pr,
FY 1989 wil&be critical for Water Programs. States and EPA
will be meeting near-term deadlines and requirements for imple-
menting programs to address both newly identified- and long
standing problems as demanded by the Water Quality and Safe
Drinking Water Acts as well as continuing to operate traditional
base programs. Water Programs' approach for dealing with these
challenges is to focus our efforts to areas of greatest risk,
and where the results of our efforts will reap the greatest
benefit. In 1989, Water Programs will focus on three problem
areasx \
*
I. Protecting Drinking Water Sources
FY 1989 is critical to the Drinking Water Program as it
implements the first new substantive provisions -elated to the
1986 Safe Drinking Water Act amendments including enforcement of
the first new volatile organic compound and microbiological Maximum
Contaminant Levels (MCLs), State adoption of authority to imple-
ment the surface water treatment mle (for filtration), implementa-
tion of the revised public notification requirements, initiation *
of the one-year requirement to assess all 15,000 surface water '
systems, and enforcement of the ban on lead-content plumbing
materials and lead public'notification.
The Drinking Water Program will continue developing the
regulatory framework for controlling drinkin? water contaminants
by satisfying the statutory schedule for reg'latory development
as well as a continuing emphasis on enforcin existing drinking
water standards. EPA will be increasing its eff»::s to build
additional State capacity to implement new regula-.jry require-
ments, including mobilizing the regulated communicy for
voluntary compliance with the new requirements.
The Water Program continues to believe that wellhead protec-
tion activities are a key component in States' protection of wells
which supply public water systems. Therefore, we see a major
emphasis on providing technical assistance to States in developing
either wellhead protection programs or other wellhead protection
initiatives;- Water Programs will increase assistance to States
as they review and refine their groundwater strategies and develop
a more comprehensive approach to groundwater protection, including
application of classification guidelines, and development of
preventative approaches.
Finally, to protect our underground, sources of drinking water,
a key FY 1989 objective is more effective compliance and enforce-
ment of the UIC .program, including emphasizing approaches to
control "high risk" injection practices into Class V wells which,
in some States, are not effectively regulated now for most
subclasses (e.g., agricultural drainage wells) and many of which
nay ppse serious threat to underground water supplies.
-------
-3-
2. Protecting Critical Habitat*
*.
In line witlF'the legislated mandates and our increasing con-
cern for high risk* vulnerable ecosystems, including wetlands,
near .coastal Maters* estuaries, and lakes, EPA is strengthening
its programs for developing anticipatory approaches in identifying
and resolving the most serious wetlands losses; expediting
Section 404 policy development; and enhancing State and local
wetlands protection capability. In protecting our near coastal
waters and oceans, we are strengthening EPA management
support to an expanding estuary program. We recognize that
toxics and nonpoint source (NPS) pollution are major contributors
^to problems in these critical areas. Therefore* we are increas-
ing technical and programmatic support to State and local
officials by documenting and disseminating successful control
approaches through technology transfer from the near coastal,
estuary, Chesapeake Bay and Great Lakes programs.
3. Protecting Surface Waters
In this area we propose to accelerate the development and adop- ;
tion of water quality standards* primarily for toxic pollutants*;
by increasing EPA assistance to States, increasing EPA review of
State standards and track-ing State progress; continue investi-
gating regulated and unregulated industries known to and/or
suspected of discharging significant amounts of highly toxic
pollutants, developing requisite regulations; review Individual
Control Strategies (ICSs) which .(under the Vdter Quality Act
of 1987) are to be submitted by February 19t ; focus the NPDES
program on implementing these ICSs in NPDES thermits and pretreat-
ment programs where States/EPA have identified toxicity problems
and data exist to establish water-quality.based controls; increase
emphasis on the regulation of stormwater discharges and assure
progress in establishing sludge management programs; and maintain
enforcement levels with greater emphasis on post-BAT/water
quality requirements. Recognizing the critical role of the
monitoring program in these activities, we propose to expand our
surface water data base to identify hazardous substances; and
develop exposure analyses using a risk-based* geographic approach.
4
Finally* we, plan to continue the development and updating of water
quality criteria, including investigation of improved biological
assessment methodologies (bio-criteria).
3. MANAGEMENT PRINCIPLES
The following management principles will guide Water Program
activities in meeting the challenges of FY 1989.
7 JC->
-------
-4-
1. EnlarqihVthe EPA/State Partnership ,
^- -
Water Programs will work actively to create a dialogue for parti-
cipation among Federal, State, and local agencies*, industry,
environmentalists, and the public. In particular. Water Programs
will take a leadership role in establishing networks with other
Federal agencies in stimulating coordination among a variety of
State and local agencies,, and in encouraging public participation
in the sharing of information, and' the development of 'consistent,
supportive protection approaches.
2o Integrating Water Program Rcsponsibil.ties
As States implement their state Clean Water Strategies (SCWS)
in FY 1989, the Water Programs will take a leadership role
in encouraging Regions and States to coordinate their many
CWA program responsibilities, to set priorities to target water
resources for immediate action, and to identify the most impor-
tant water resources for future controls. We will be watching
Cor SCWS applications to CWA programs in those States that di.d :
not choose to participate in the 1983 process, for potential use 4
in Drinking Water Programs, as well as for cross-media applica- *
tions that will improve the effectiveness of environmental
programs.
3. Targeting Based On Comparative Risk Asse.aments
Ira setting priorities and managing resources the Water Programs
will meet legislatively mandated requirement and increasingly
focus on high risk areas with the greatest potential environmen-
tal benefits and wita feasible solutions in terms of the available
tools and resources*
4. Indian Tribal Participation .
Both the Safe Drinking Water Act Amendments of 1936 and the Water
Quality Act of 1987 authorize EPA to treat Indian tribes which
meet identified criteria as States for various pollution control
activities... By the beginning of FY 1989, regulations will be in
effect enabling eligible tribes to receive grants and contractual
assistance under the Safe Drinking Water and Clean Water Acts
(including-Bonlcipal wastewater treatment) and to assume public
water system and underground injection control enforcement
responsibility. Other regulations are anticipated in FY 1989
including establishment of tribal water quality standards, delega-
tion of NPDES permitting activities, and .assumption of the Section
404 dredge and-fill program. For those programs, and other
pertinent activities, the word "State" includes tribes as appro-
priate.
-------
-5-
C. CQNTRQLLIHG THE DISCHARGE OF TOXIC POLLUTANTS INTO SORPACE
WAT
. .
Given the . vfel of public attention to potential environmental
and public health impacts, as well as the WQA amendments , the
A -ncy's highest CWA priority in PY 1989 continues to be protecting
the nation's surface waters from point source discharges, especially
hazardous and toxic pollutants. By February 4, 1989, Section
304(1) requires States to devel p lists of impaired waters,
identify point sources and amounts of pollutants thty discharge
: it cause toxic impa- .5, and develop individual control strategies
(less) fc- -each such i. int source.
The general effect of $304(1) is to focus national surfa.ee water
jality protection programs immediately on addressing known wate.
quality problems due entirely or substantially to point source
discharges of S307(a) toxic pollutants. Controls for these
pollutants must be established as soon as possible, but no later
than the statutory time frames set for en in $304(1). However, EPA
insiders the WQA statutory requirements only one component of
se ongoing national program to control toxics. EPA will require
11 known water qual..y problems due - any pollutants to be
controlled as soon .» possible, givi . the same priority to
controls for non-j (a) pollutants as 'for controls where only
5307 (a) pollutants are involved. Such problems include any
violation of State numeric criteria for any pc'.lutant known to
cause toxic effects and any violation of a St*te narrative water
quality standard the: prohibits instream toxic ity due to any
pollutant (including chlorine, ammonia, and w-
-------
-6-
States will »lso upgrade their anti-degradation pc :rams to
protect existing high quality waters, and will ado;.: effective
whole effluent toxicity control programs.
Section 304(1) requires States to develop and submit to EPA lists
of impaired waters. In PY 1989, States will refine and expand
these lists, submitted initially to EPA in FY 1988, in order to
aeet the statutory deadline for their final submission. §304(1)
also requires States to establish individual control strategies
(ICSs) by the statutory deadline to reduce the discharge of toxic
pollutants from each identified point source. Controls will be
established as effluent limits in NPDES permits that assure, in
combination with existing nonpoint source controls, the attainment
and maintenance of applicable WQS for toxic pollutants and toxicity.
The immediate emphasis of 5304(1} and the national program for
toxics control requires States and EPA to address problems
identified through review of existing and readily available data.
However, States and EPA Regions will continue to collect new
water quality data to assure that changes in water quality are
identified and any gaps in existing data are filled to provide a
reasonable basis for identifying and solving cases of water
quality impairment. Revised State monitoring strategies will
probably be necessary to address toxic pollutants and nonpoint
source information needs- in a cost-effective nanner, based on
EPA's Surface Water Monitoring Strategy.
Da STATE CLEAN WATER STRATEGIES
In PY 1988, EPA encouraged States voluntarily to develop State
Clean Water Strategies (SCWSs) to set forth their priorities for
action over a multi-year period, and to provide a basis for
targeting their water pollution prevention and control efforts
on water resources they determined to be most valuable and/or
most threatened. In developing these SCWSs, States chose a
format and scope of coverage that best suited their particular
needs so long as the final management plan was multi-year and
recognized the interconnections among water programs. The nature
of the final State management plans, therefore, would vary depend-
ing upon whether a State elected to use a comprehensive, inte-
grated approach or a more traditional programmatic approach to
convert its concepts into a multi-year strategy.
Where States took advantage of this opportunity, FY 1989 will be
the first year for implementation of these multi-year management
plans. As the plans vary, so will the nature of the PY 1989
implementation activities. States that adopted the more tradi-
tional, programmatic approach will be implementing the first
Around of actions set forth in the multi-year plan, and may want
to strengthen further their public interest coalitions in an
effort to generate State funding needed to carry out specific
programmatic activities such as nonpoint source pollution
control. Where States opted to focus more broadly across
programs, implementation activities may involve focusing a
and resources of several oroqrams on
-------
-7-
protecting and restoring specific areas of concern, such as
estuaries* near coastal waters, special groundwater areas,
or wetlandsv- FY 1989 might also be a year in which these States
work to buiW.a moro Regional/local base of support for action
and funding&for these geographic-based initiatives.
As States meet the February ;, 1989, statutory deadline for
activities, under 304(1) of the Clean Water Act, they will update
their SCWSs to complete integration of key long-term activities
that will be necessary to fully implement the surface water
toxics control provisions of the law. These changes may include
expanding and/or setting priorities for new water quality moni-
toring for toxics, as necessary; and collecting new data where
current data are not adequate to assure problems have been
identified. States may also choose to update other aspects of
their SCWSs as a result of new information.
To assist States in carrying out their SCWSs, EPA Regions will
work with States to coordinate program requirements and to provide
incentives to States to implement their risk-based approaches
to targeted water resources. In addition, in FY 1989 CPA
Headquarters will promote transfer of information and ideas
generated by States that developed SCWSs in FY 1988. ^ EPA expects
that these individual State experiences will provide a body of
information that may be useful to other States that decide to .
develop multi-year plans for water programs based on a targeting
and ranking exercise. EPA Headquarters will work with the States
to package this information, and to provide i-site peer group
expertise to new States that may benefit. . A will also consider
tne usefulness of this approach in other wac r activities and
programs, particularly activities under the ife Drinking Water
Act.
E. FLEXIBILITY/ACCOUNTABILITY; NATIONAL CONSISTENCY vs.
REGIONAL/STATE NEEDS AND PRIORITIES
The 1987 Water Quality Act (WQA) ratified existing surface water
programs and set forth a number of new activities and initiatives
to address emerging water pollution problems. Soon after enact-
ment, EPA and the States agreed they would strive to meet the
statutory goals, requirements, and deadlines of the Act to the
fullest extent possible. In doing so, EPA and the States also
agreed they/'would pursue with vigor both the new initiatives
under the 1987 WQA and the ongoing programs, priorities, and
responsibilities of the traditional CWA programs. This has come
to be Known as "maintaining the base program,* which means
that, as we move forward with new and/or expanded water quality
management programs.that have not been sufficiently funded (such
as protection of estuaries and nonpoint source control in
general), we do whatever is necessary to assure that the water
quality gains already made through the existing (largely
technoibgy-oased) point source controls are maintained. The
-------
-8-
fundameat*t.fil*sue at debate is one of flexibility versus
accountability or toe degree to which Regions and States do less
in the base^prrograa- in order to account for new activities.
In response to the need to provide Regions and States with a
vehicle to allow such flexibility to occur. States were
encouraged to develop State Clean Water Strategies (SCrfSs) as
one process for setting out a plan that would give EPA an
opportunity to make a reasoned judgment whether a State's
alternative program made sense even though certain activities
did not take place (see section on SCWS). In addition, EPA
and the States will work together to explore other ways to
improve the balance between accountability and flexibility,
including * .
Ways to increase efficiencies/improve ef f ectiv ..iess in *
operation of the base program;
Ways to make better use of Agency/OW accountability systems
to provide both the national consistency Headquarters seeks
and the flexibility Regions and States desire; and »
* Ways to improve State fiscal capacity over the longer-term, '"*.
accompanied by better use of perforoance-based grants.
EPA and the States will .woHc together on tlv. :a issues throughout
FY 1988, with the expectation that *ouie of - ar work will come
to fruition in FY 1989.
I.. ENVIRONMENTAL PROBLEM AREAS
-------
-34-
C. PROTECTING SURFACE WATERS
1.
EPA and Stati^watar programs will continue and accelerate their
efforts to p'rofeect and restore the nation's surface waters through
effective implementation of traditional CWA activities along with
the WQA initiatives. Consistent with the WQA mandates* EPA and
the States will focus on protecting human health and' aquatic
resources toy identifying and controlling toxic pollutants and
hazardous substances entering the nation's surface water (see
earlier section on "Controlling the Discharge of Toxic Pollutants
into Surface Waters").
In addition* EPA and the States will carry out a number of CWA
activities related to water quality standards* monitoring* NPOES
permitting* pretreatment* nonpoint source control* and enforcement.
EPA will work.with the States to helpt upgrade monitoring programs
to improve the identification of impaired waters; upgrade water
quality standards programs to incorporate standards for toxic
pollutants and upgrade anti-degradation and whole effluent toxicity.
control programs. As State toxic control programs are upgraded* £.
EPA and the States will implement improved controls for toxic $
pollutants and toxicity through NPDES permits. EPA and the Statesr
will also help local POTWs upgrade and refine their approved
local pretreatment programs. EPA and the States will maintain
their NPOES enforcement capability to ensure compliance with
water quality- and technology-based requirement, and will improve
their pretreatment enforcement capabilities. KPA will make
effective use of its Federal administrative penalty authority to
assure faster* more cost-effective, enforcement -against direct and
indirect dischargers.
EPA will assist the States .by undertaking activities to prepare
for later phases of toxics control by developing information on
new toxic pollutants and hazardous chemicals (i.e. beyond the 126
priority pollutants) that could cause significant problems for
surface waters. EPA will place priority on bioaccumulative
pollutants and other chemicals (generally carcinogenic or mutagenic
pollutants) that could require controls for human health related
use. that are sore stringent than those needed to protect aquatic
species. EPA vill also develop effluent guidelines and water
quality criteria* or advisories to serve as the basis for new
State water quality standards and fourth round permits in the
ear; 1990s. -"'
In an effort to st-engthen State responsibility for water programs,
EPA will work with states to maintain effective State NPDES
programs, and to increase the level of program approvals by
-------
-35-
approving now State pretreatment and sludge management programs
and approving whole or partial NPDES program*. EPA will also
continue the phase-out of the Federal Construction Grants Program,
leaving **>*** place financially viable State Revolving Funds and
POTW user Charge systems to meet municipal financing needs for
long-term cxiflipliance* EPA. will also continue to ensure that
scarce resources are used efficiently to produce-reliable, high
quality, effective municipal wastewater treatment systems*
In the nonpoint source area* the WQA mandates a multi-year
approach. State Management Programs are initially expected to
target control actions at specific nonpoint source problems or
areas where water quality data are available to support develop-
ment of effective nonpoint source controls* In the longer-term.
States are expected to maximize environmental benefit by devoting
resources and efforts to'water resources in a priority order that
recognizes the values of the waterbody in question, the benefits
of various control actions (including evidence of local public
interest and support), and the problea(s) controllability.
2. Indicators
The following indicators are being considered by EPA as a means
to.evaluate the long term impact of the programs described in 7
this section* They are not accountability measures for evaluating
FY 1989 program performance or impact.
a. Sizes and location of areas classified for various designated
uses.
b. Sizes and location of areas that fully or partially do not .
support uses and are threatened* due to point and nonpoint
source*.
c. Sizes of waters- with elevated levels of toxics.
i. Extent of fish tissue contamination*
e. Municipal wastewater treatment works projects which initiate
operations and were funded-with assistance of a construction
grant or other assistance under an SRF.
£. Industrial and municipal compliance.
74
-------
e. SPDES Permitting
In recognition of the importance of toxic pollutant cont-ols, the
Water Quality Act of 1987 (WQA) added section 304(1) to the CWA
with specific deadlines to accelerate activities for controlling
certain toxic discharges to surface waters where wate~ quality is
now impaired. This new mandate is one component of the ongoing
national toxics control program. In FY 89* Regions and NPDES
States will expedite permitting actions to set toxics limits.
Where appropriate, States will translate the results of whole
effluent toxicity and water quality studies begun in earlie-
years into water quality-based limits to meet existing and new
water quality standards. Where major or minor dischargers are on
waters listed under §304(1), individual control strategies (ICSs)
must be established in permits by February 4, 1989. Within 120
days. SPA must review and approve or disapprove ail state ICSs
submitted in accordance with the February 4, 1989 deadline. Where*
State ICSs are disapproved, EPA must issue ICSs by June, 1990.
-------
-42-
Xfe addition, where instream toxicity problems are identified, even
iff the source^* not listed under 304(1) (because the pollutant
.nvolved is no* a priority 307(a) pollutant) States and Regions
will reissue peraits to include, as appropriate, toxicity based
limits, toxicity reduction evaluations, compliance schedules,
biomonitoring, revised local pretreatment programs,' and pollutant-
specific limits.. In unusual cases. Regions and States nay requi-e,
permittees to conduct apprap-iate studies leading to future
permit limits, but only where data deficiencies make it impossible
to set appropriate limits now. Administering agencies will also
reissue and/or modify permits to implement BAT guidelines for
organic chemicals to reflect best currently available technology
on a case-by-case basis where guidelines are outdated or unavail-
able and to incorporate sludge requirements and needed ^evisions
to pretreatment implementation requirement*.
In FY 1989, ttPDES permitting authorities will begin .0 focus
on section 405 requirements for controlling sludge use
and disposal. EPA will develop regulations for incorporating
sludge uso/disposal criteria in tfPOSS permits. Generally, EPA
will defer to State sludge pe-nitting efforts wherever they
exist, and will focus on appropriate monitoring requirements,
along with compliance with existing sludge standards. Where
sludge disposal practices are presenting a threat to human
health and the environment, SPA and States will take appropriate
permitting and enforcement actions to address the concern. When
the technical c-ite-ia regulations are promulg* ed, tfPDES permits
with such criteria must be issued to all cove'-..- POTWs unless the
requi-einents are covered in another pe~m.it iss: 1 under an
approved State permit program.
Consistent with the 1937 WQA, EPA headquarters will develop
regulations,and guidance on: new pe-mit application and control
requi--sments; stormwatar application requi-ementa for industry
and for municipalities with storm sowers serving 100,000 or more
population; antibacksliding; FDF variances; variances for non-
conventional pollutants (ammonia, chlorine, color, iron, and
total phenols); and other new permit Delated authorities. Regions
and States will modify certain permits to reflect new authorities
(e.g., coal -emitting). Stormwater dischargers will begin to
prepare permit*' applications (due to EPA and States one year after
regulations arc. promulgated).
>£'
Zn FY 1989, tHe'Regions and States will continue to implement
the RCRA corrective action process begun in FY 1988. In FY 1988,
the Regions (or the State where applicable) will have initiated
the corrective action process by issuing RCRA "rider* permits to
POTWs subject to corrective action requirements. a FY 1989, the
Regions and States will complete the seconu phas-* f corrective
action, the RCRA Facility Investigation, and wil aitiate interim
corrective measures where appropriate. Regions .1 review
'CERCLA and .RCRA remedial actions involving discharges to surface
waters or POTWs to ensure that approp-iate technology and water
quality limits 4?-e met.
-------
-43-
Headquarterm
o Headqua£&*ers/Regions will provide oversight, guidance, and
technical; assistance to Regions/States to complete the
toxics activities noted above by the statutory deadline of
February 4, 1989* (Ongoing)
o Headquarters will issue regulations to implement the WQA and
provide technical assistance and training for permit writers,
and contract assistance to develop permits. (Ongoing)
o ORD will continue to support toxicity reduction evaluations
for the development of water quality based permit limitations
in the Municipal Wastewater Program and the development of
Best Conventional Technology (BCT) and Best Available Tech-
nology (BAT) limitations in the Industrial Wastewater Program.
Information will be developed on treatability of RCRA wastes
that will be useful in predicting effluent concentrations,
POTW pass-through and potential water quality problems.
(Ongoing)
^
Regions/States *
^ *
+ o Regions/States will reissue all major permits expired or
expiring in FY 1989. (Ongoing) [SPMS]
+ o Regions/States will establish ICSs for a.I facilities listed
under 304(1) by 2/4/89. (Second Quarter [SPHS]
o Regions/States will reopen permits for s :e major and minor
dischargers to incorporate water quality-dased limits based
on studies required at the time of permit issuance, and will
modify other 'major permits as needed to impose necessary and
appropriate toxic controls. (Ongoing)
N' o Regions will assist States to take needed steps to strengthen
their toxics control programs in accordance with Action 'Plans
established in FY 1983 (joint monitoring, water quality
standards and permitting program). (Ongoing)
N o Region**will review, approve and disapprove as appropriate
State permits issued to dischargers in waters listed under
§304(1>(B) and will issue federal permits where States fail
to correct any deficiencies in individual control strategies.
(Third and fourth Quarters) [SPMS]
+ o Regions/States will implement the RCRA permit-by-rule require-
ment and establish corrective action requirements where
necessary for POTWs that are receiving hazardous wastes not
mixed with domestic sewage. (Ongoing)
-------
-44-
Regions/State* will begin to include sludge monitoring and
existing£toational sludge regulatory requirements in NPDES and
State sludge permits. (Ongoing)
£. NPDES Enforcement '
In FY 1989* the CWA enforcement priority will be given to protec-
tion of the gains achieved in implementing the National Municipal
Policy (SIMP) through aggressive enforcement against major and
water quality affecting minors that are violating MCP schedules.
Administering agencies will coordinate pretreatoent and NMP
enforcement actions so that* when an action is taken in response
to noncompliance in one program* consideration is given to the
other. .
Industrial.enforcement efforts will continue to focus attention
on significant noncompliance. As the NPDES program turns
its attention increasingly to enforcement of new controls for
toxics and hazardous wastes* it will place more emphasis on
consularing cross-media impacts In prioritizing enforcement cases
and on the role and use of expanded CWA criminal enforcement
authorities. >
*
EPA, in cooperation with the States* will implement a Compliance
Monitoring and Enforcement Strategy for Toxics Control. The
strategy focuses on inspections to monitor :ute and chronic
toxicity; c~ite*-ia targeting enforcement re^ -onses to violations
that pose the greatest potential **isk to aquitic life and human
health; lab performance evaluation criteria "or toxicity analysis
(ORO); and an updated OMR/QA program to mee new and expanded
needs for toxicity controls.
Headquarters
o Headquarters (OWEP/OECM) will revise the Clean Water Act
Penalty Policy and Enforcement Management System to address
the use of administrative penalties to further supplement
civil* judicial and criminal enforcement actions in assuring
compliance with the Clean Water Act. (Ongoing)
»«*" '
o Headquarters/Regions will analyze the effectiveness of refer-
ral/cas* management and support process based in part on an
FY 198 7"ana lysis of the variation in ORC/WMD productivity* as
well as new arrangements with OOJ. (Ongoing)
Regions/States .
o Regions will fully implement CWA administrative penalty author-
ity consistent with FY 1987 national guidance; Regions will
also adhere to FY 1987 national guidance on the best use of
the entire spectrum of existing/new/expanded CWA enforcement
mechanisms (compliance only Administrative Orders, administra-
tive penalties (2 tiers), civil and criminal referrals, and
contractor listing). (Ongoing)
-------
-45
N o Regions/States will increase the use of inspections assess *»
permit^!* biomonitoring capabilities and evaluate pe.-aittee
procedijfirti/techniques for toxicity reduction evaluations.
f
N o Regions/States will take -...rely and appropriate enforcement
against SNC violations* including those involving toxic ,
pollu-ants. (Ongoing) [SPMS]
o Regions/States --ill ensure timely and accurate data entry of
WENDB data els. nts for pretreatment and NPDES. (Ongoing;
o Regions/States will .monitor POTW compliance with HK milestones
in consent decrees* permits e."d administrative orders* and
initiate/escalate enforcement actions as necenary based on
the 9/22/87 Enforcement Strategy. (Ongoing) CSPMS}
o Regions will ensure that EPA judicial referrals/consent decrees
and final administrative penalty orders contain appropriate
civil penalties consistent with the CWA Penalty Policy; IffPDES
States will comply with penalty provisions in the National
Guidance for Oversight of HPCZS Programs. (Ongoing^ |
o Regions and States will ensure compliance with all formal ~
enforcement actions (AOs civil and criminal) by tracking -cases
from iniii.-tibn of refer aLs to entry of consent decrees or
court orders* and by prompt follow up action whan deadlines
are' missed. (Ongoing) .
o Regions .Mill provide technical support >r criminal investiga-
tions and prosecutions in program prior. ;y areas. Regions
shall refer to the Office of Cr-'-iinal Investigation matters
involving suspected criminal viw.ations, including significant
unpermitted discharge and false reporting* or other fraud to
the Agency. (Ongoing)
+ o Regions/States will enforce against s POTW noa-respondence
to 308 letters concerning POTWs receiving hazardous wastes;
POTWs that are required t have RCRA permits* but do not;
and POTWs not complying « -.h corrective action plans*
(Ongoing) .
g. Pretreatment
The goal is to assure that POTWs* fully implement and enforce
aretreataent controls for conventional and toxic pollutants and
hazardous wastes that are necessary to protect human health*
the environment, and.the treatment works. Administering Agencies
Throughout this section, wherever POTWs are cited, the same
requirements apply to States or EPA acting as Control Authority ^
in lieu of local program
-------
-46-
should give priority to modifying the requirements of the approved
program and HPDES permits 1) to incorporate new requirements
resulting fro*'new or revised regulations; or 2) to correct in-
adequacies identified in the operations of the POTW pretreatment
program. Additionally, Administering Agencies should closely
monitor the performance of POTWs to identify those that should be
reported on the Quarterly Noncompliance Report and should take
necessary action to return these POTWs to compliance.
In FY 1989, 395 POTWs with approved local programs have permits
which will expire. Administering Agencies should use this oppor-
tunity to modify these permits to incorporate new or revised
requirements established in amendments to the General Pretreatment
Regulations as a result of the Domestic Sewage Study (DSS) or
Pretreatment Implementation Review Task Force (PIRT). Additionally,
the NPDES permit and/or approved program should be modified to
incorporate needed changes or refinements to the approved program
identified through audits* inspections or annual reports and to
ensure that these requirements are enforceable. Administering
Agencies should give emphasis to establishing specific levels of ?
activity and timefraraes for issuance of industrial user (IU) '
control mechanisms, monitoring IU performance, and enforcing . :
against IDs who are in noncompliance. Administering Agencies
should continue to give emphasis to the following three key areas
to ensure effective implementations
o Program Modifications Regions and States will formally modify
approved pretreatment programs to incorporat- new requirements
or correct inadequacies. Modification and - proval will follow
the FY 88 amendments to the General Pretreatment Regulations,'
and focus on the following three areas:
a. Local Limits - In accordance with the 1985 policy memo-
randum and the FY 88 Local Limits Guidance Manual, aite
specific technically-based local limits must be
developed for each approved program and periodically
reevaluated.
b. Control Mechanisms - Based on the FY 88 IU Permitting
Guidance Manual, the PIRT amendments and the OSS
amendments, POTWs may need to develop and issue stronger
IU control mechanisms for significant industrial users
(SIUs).
c. Enforcement -Procedures - POTWs must be .accountable for
surtacing IU noncompliance and enforcement actions with-
in certain time frames. Where approved programs do not
specify detailed enforcement response procedures, they
should be modified to include them consistent with the
1986 Pretreatment Compliance Monitoring and Enforcement
Guidance (PCME).
-------
-47-
o Enforcements Regions and States will assure that POTWs operate
their appeared programs and comply with reporting requirements.
Where POTI^r-ffail to successfully iapleaent their program as
measured feygthe PY88 guidance on reportable noncompliance.
Administering-Agencies should use technical assistance* formal
enforcement or a program modification to eliminate the problem.
When technical assistance is the chosen approach a schedule ,for
return to compliance should be developed. If the schedule is
longer than 90 days* it should be incorporated* .at a minimum,
in an administrative order.
o Data Managementi Regions and States will assure that POTWs have
in place and employ appropriate mechanisms to track and determine
compliance rates for SIO's consistent with the PCME, and that
POTWs report such data at least annually. States and Regions
will employ PCS to track pretreatment information and assist in
identifying POTWs which meet the criteria for reportable non-
compliance.
Where there is an approved program, and the POTW has not taken all
available action to secure the .compliance of the IU, action
against both the POTW and the ZU will usually be appropriate. Where
EPA or the State is the Control Authority, enforcement action 1
should be taken against those Ills which have not complied with
categorical standards, giving priority to IUs where the POTW has
been identified as having toxics discharge problems.
Headquarters
o Headquarters (OWEP) will promulgate change to the HPDES and
General Pretreatment regulations based on tie recommendations
of OSS. (Third Quarter)
o Headquarters (ORD) will develop information on treatability of
hazardous wastes that will be useful in predicting effluent
concentrations, POTW pass-through, and potential water quality
problems. (Ongoing)
o Headquarters will issue guidance to improve POTW control
mechanisms, compliance tracking and enforcement («.g., setting
local limits- for toxic pollutants/hazardous wastes* setting
priorities for enforcement; etc.), and a companion document
on oversight responsibilities of administering agencies.
(Ongoing) ''
Regions/States
o Regions/States will assess and assist POTWs as they implement/
enforce their programs and adopt new regulations resulting
from the findings of the DSS; the focus will be on adequate
control mechanisms for compliance tracking of, or enforcement
against, IUs. (Ongoing) [SPMS]
-------
-48-
o Regions/Spates will place highest priority on enforcement
against POTW* consistent with reportable noncompliance guidance
which discusses how to determine whether a POTW is failing to
implement its local program (and against some IUs within those
POTWs). EPA- will also take enforcement against Ills where
POTWs do not have* or are not required to have* approved local
programs* (Ongoing) CSPMS]
o Regions will use* new criminal enforcement authorities consis-
tent with new/expanded CWA authorities* with special attention
on knowing/negligent introduction into a sewer system/POTW of
toxic pollutants/hazardous wastes (as defined by CWA §§311(b)
(2)(A) and 307(a); CERCLA $102; SDWA §3001; TSCA f7) in excess
of legal limits. Regions will provide technical support for
criminal investigations and prosecutions in pretreatment cases.
(Ongoing)
o States that act as control authorities in lieu of local programs
will implement/enforce the pretreatment program consistent
with national guidance* and will be held to the same standards .
of implementation as local authorities. (Ongoing)
'v
h. NPDES State Program Approval, Review* and Oversight
In FY 1989* the goal is to'further strengthen the Federal/State
partnership by approving new State NPDES, pre-.veatment and sludge
programs, improving.'the legal and regulatory basis of current
State programs* and conducting effective over '.ght to ensure
sound* consistent implementation of State prc -ams. -As State
NPDES and pretreatment programs mature and as more States assume
these responsibilities* these activities continue to grow in
importance. In addition* EPA will work with any Indian tribes
seeking to administer the NPDES program as authorized by the WQA.
The Regions will continue to encourage NPDES States to assume
authority for the pretreatment program* and will continue to
condition §106 grants accordingly. Regions should continue to
encourage State program modifications for general permitting
authority* since this will be a key to successful implementation
of PY 1990 stormwater program activities for all NPDES States.
In addition,-'the CWA amendments are expected to produce increased
activity with respect to State program assumptions* including
approval of State NPDES or other federally authorized programs to
include sludge requirements* and treatment of Indians as States.
Finally* Regions* with Headquarters assistance* will continue to
review State programs to ensure that current State laws and
regulations provide adequate authority to administer and enforce
the national NPDES/prettreatment program requirements under the
-CWA, as amended. Special emphasis will be given to following up
on Action Plans established by States and Regions in FY 1938 to
strengthen water quality based permitting for toxic pollutants
and toxicity.
-------
-62-
WATER ENFORCEMENT AND PERMITS
PY 89 PROGRAM SUPPLEMENTAL GUIDANCE
GUIDANCE
Interim Implementation Strategy
for Sludge Issuance
Guidance for Writing Interim
Case-by-Case Permit Requirements
for Sludge Issuance
State Program Review Guidance
334(1) Guidance
Designation of Dischargers Con-
tributing to Water Quality Standards
Violations or Significant Contributor
of Pollutants
Compliance Monitoring and Enforcement
Strategy for Toxics Control
Guidance on the Collection of
Stipulated Penalities
Enforcement Strategy for Industrial
Users Where EPA is the Control Authority
Guidance on Development of Penalties
for Prehreatment Implementation Cases
PCS Evaluation Study-Recommendations
and Data Entry Guidelines - .
FINAL PUBLICATION DATE
March 1988
March 1988
December 1987
March 1988
March 1988
March I933r
July 1988
April 1988
March 1938
February 1988
-------
-------
OFFICE OP WATER
STRATEGIC PLANNING AND MANAGEMENT SYSTEM
PY 1989 MEASURES
DEFINITIONS AND PERFORMANCE EXPECTATIONS FOR THESE MEASURES
ARE POUND IN THE PY HT» OFFICE OP HATER EVALUATION GUIDE
-------
-------
Programt
OFFICE OF WKKR
Ft 1989
Water Enforcement and Permits
OBJECTIVE
Achieve and maintain high
of cunplianoe in the NPOG8
program, (continued)
eftectively entorce the
pretreatment program.
Identify conpliance problems
and guide corrective actions
through inspections.
MEASURE
Report, by Region, u.- total number ot EPA Administrative
Orders and the total number of state equivalent actions
issued} of these report the number issued to POIWa for not
implementing pretreatment. Report the number ot Class I and
Clans II proposed artni« rative penalty orders issued by
EPA for NPDES, pretreatmant, and 402 wetlands violations.
Report, by Region, the active State civil case docket', tta
number of civil referrals «;.;nt to the State Attorney .. rai,
the number ot civil cases tiled, the number ot civil cases
concluded, and the number ot criminal referrals filed in
State courts (OfiCH will report EPA referral )
Identity, by State, the number ot POIWa that meet the cri-
teria tnr reportable noncompliance (RNC) and track by State
the number of POIWs in that universe where action taken re-
solves the violation. Report EPA and State separately tor
each action takeni technical assistance, permit/program
modification, or formal enforcement. Report, ty State, the
compliance status (uuc, resolved pending, resolved) of each
pom in the universe as of the end ot the year.
Report, by Region, the number of pretreatment State civil
referrals sent to State Attorneys General, the number ot
criminal actions tiled in State courts, the number ot State
cases filed, and the number of administrative penalty orders.
(OECN will report EPA referrals.)
Track, by Region, against targets, the number ot major
permittees inspected at least once (combine EPA and State
inspections and report »;. one number).
»«**
SPMS POPE FREQUENCY
VQ/E-10
WQ/t-11
WO/: 12
0 1,2,
0 1,2,3,4
0 2,4
0 1*2,3,4
0 1*2,3,4
OW-13
t /an
-------
ftroqramt
OFFICE OF MATER
PY 1989
Hiter Enforcement and
OBJECTIVE
MEASURE
SFMS CODE PRBOUENCY
.
Assess toxicity control needs- **
and reissue malor permits in
a timely manner.
tenure NPDRS permits are fully
in effect and enforceable.
Effectively Implement approved
local protreatment proarams
.
Itack, against tarqets, the number of permits reissued to
*a1or facilities durim PY 89 (report NPDES States and
non-NPCRS States separately)
Identify the number of permits reissued and the number
modified durim PY 89 that reflect tater duality based
assessments for toxics, of these* report number that are
Individual Control Stratenies (NPBES States, non-NPTRR
States| report malora and 304(1) listed minor separately.)
Identify, by Ran ion, the number of nendina evidentiary
hearing renuests and track, by tonlnn, nrnnress analnnt
nuarterly tarnetn for the evidentiary hearing rnnuestn
rendinri at the heninninq of PY 19R9 resolve^ by EPA and
for the number resolved by NPDRS States.
Irack, by Raninn, an*lost quarterly taroets, the number oft
1) audits of approved local pretreabnent pronrams conducted by
RM and the number conducted by approved pretreabnent States*
and 2) approved local pretreatament inspections conducted by
FPA and the number conducted by the States for BDItfe.
WO-ll
WO-12
HO-M
WD-14
0 1,2,3,4
0 1,2,3,4
01,2,3,4
OH-11
3/88
-------
OF MMTR
PY 1989
Program! Hater Enforcement and Permits
OBJECTIVE
MEASURE
SPHS GOOC FREQUENCY
Inclement the fetional Hmiclpal
Rjllcy ;.;,».,
Achieve and maintain hloh levels
of compliance In the MPOES
program.
Identify, by Region, the number of major municipals on
Mdte and the number that are not In compliance with their
ftcheriule (report EPVState separately).
%
Report, by Region, the number of ma lor facilities addressed
bv formal enforcement actions against municipalities that are
not complying with their schedules (report State/Em
separately).
Track i by Ran Ion, the number of ma lor permittee!! that ares
on final effluent limits and not on final effluent limits
(list separately! municipal, Industrial, federal facilities}
NPPRS States, non-NPDES States).
Track, by Han Ion, the number and percenter** of ma lor per-
mittees In sIqnIfleant noncompllance withi final effluent
llmltsf construction schedules! Interim effluent limits*
reporting violations (list separately! nuncipal. industrial.
Federal facilities i NPTES States, non-NPTRS States).
Identify, by Aeqlon, the number of ma lor permittees in
significant nonconpllance on two or more consecutive ONTRs
without returnim i-n conpllance or halnq addressed by a formal
enforconent action (persistent violators) (Report separately!
municipal. Industrial, Federal). Of these numbers, identify
how many are in significant nonconpl lance for three quarters
and how many for four or more quarters.
Report, by Raoion, the number of malor permittees that are on
the previous exception list which have returned to compliance
durinq the quarter, the number not yet in compliance but
addressed by a formal enforcement action by the ONCR
completion date, and the number that ware unresolved. (After
a permittee has been reported as returned to compliance or
addressed by a formal enforcement action, it should be dropped
fron suhsemant lists. (Rapnrt separately! municipal,
Industrial, Federal facilities)
WVE-2
wcye-3
wcyr-4
WCV/E-fi
MCVR-7
0 1.2,3,4
i;'".
01,2,3,4
0 1,2,3,4
O 1,2,3,4
O 1,2.3,4
01,2,3,4
OW-12
3/88
-------
VIZ.14
"A Guide to the Office of Water Accountability System and Mid-
Year Evaluations, Fiscal Year 1989," dated March 1988.
Selected Portions ONLY.
-------
-------
March 1988
A,
GUIDE TO THE
OFFICE OF VOTER
ACCOUNTABILITY SYSTEM
AND
MID-YEAR EVALUATIONS
Fiscal Year 1989
Office of '.fater
U.S. Environmental Protection Agency
Washington, D.C. 20460
-------
-------
TABLE OF CONTENTS
Page
I* INTRODUCTION I
II. THE OFFICE OF (OXER ACCOUNTABILITY SYSTEM ' 2
A. Appendix A: The Measures 2
B. Appendix B: The Definitions 4
III. THE OFFICE OF WATER EVALUATION SYSTEM 5
A. Prenegotiated Ccnmitments and Quarterly
Reporting 5
B. Regional Initiatives 7
C. Mid-Year Evaluations 7
1. Advance Preparation 7
2. On-site Evaluations -8
3. Evaluation Follow-up 10
D. Other Office of Uater Information Collection 10
Activities
E. Timeline for Activities Related to the FY 1989 * 12
Agency Operating Guidance
APPENDIX A Measures
, Public Water System Supervision A-l
Underground Injection Control A-11
Ground-Water Protection A-19
Marine and Estuarine Protection A-25
Wetlands Protection A-43
Water Quality Standards, Planning & Assessment A-43
Water Quality Enforcement & Permitting A-53
Municipal Pollution Control A-97
APPENDIX B Definitions
Public water System Supervision B-l
Underground Injection Control 3-10
Ground-Water Protection 3-17
Marine and Estuarine Protection 3-21
Wetlands Protection . 3-23
VZater Quality Standards, Planning & >ssess.Tent
Water -Duality Enforcener.t i Pemittipq
Municipal Pollution Control 3-36
-------
-------
WATER ENFORCEMENT AND PERMITS
Pretreatmnnt
ACTIVITIES
QUALITATIVE MEASURES
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
1. Develop and
Approve/Modify
Local
Pret real iwnt
Programs
(A) What rationale does the
Region/States use to add/delete
municipalities from the list of
required local programs?
(B) What are the Region/States doing
to encourage local program
modifications where deficiencies are
identified? Is the Region/State
relying solely on the POTW to identify
deficiencies?
(C) When a local program submitted
for approval is not acceptable, what
follow-up action is taken by the
Region/State if the local program is
not resubmitted in the time
prescribed by the Approval Authority?
2. T.ike Actions (A) How do the Region/States ensure
as Required to
Obtain
Compliance with
Pretreatnwint
Requirements
V 0
that local pretreatment programs are
fully implementing NPDES permit
pretreatment requirements? Other
pretreatment program requirements? Are
POTHs experiencing problems with
implementing the significant
noncompliance (SMC) criteria?
(a) Identify the local No/No
pretreatment programs requiring
approval but not yet approved at
the beginning of the fiscal year
and distinguish between those
newly identified in FY 89 and
those previously required, (list
separately: nonpretreatment
States,approved pretreatment
States).
(b) Track progress against No/OH
targets for the programs approved
during FY 1989 (list separately:
non-pretreatment states, approved
pretreatment States).
10/31/88
Quarterly
(a) Report, by Region, the number No/No
of pretreatment administrative
orders issued by EPA to Ills and
the number of pretreatment
equivalent actions issued by
States to IDs.
Quarterly
-------
0
K)
\
*»|
ui
S
J
ACTIVITIES
2. Tak«* Actions
as Required to
Obtain
Compliance with
Prutreatment
Requirements
(COIltiflUHd)
Pretreatment
QUALITATIVE MEASURES
(B) What are the criteria the
Region/States use to select
pretreatment referral cases? What is
the involvement of ORC in the
selection and preparation of cases?
(C) What is the level of coordination
for pretreatment cases between the
compliance section and ORC in the
Region and the respective agencies in
the states? If less than
satisfactory, what steps is the Region*
taking to improve coordination?
(D) How do the Regions and States
Identify and respond to industrial
noncompllance with categorical
pretreatment standard deadlines in a
municipality where there is an
approved pretreatment program?
QUANTITATIVE MEASURES
(b) Pretreatment Referrals
(1) Report by Region the number
of pretreatment State civil
referrals sent to state Attorneys
General, the number of criminal
actions filed in State courts,
the number of State cases filed,
and the number of administrative
penalty orders.
(2) | of pretreatment referrals
or State equivalent actions:
civil referrals sent to
HQ/DOJ/SAG:
civil referrals filed; and
-criminal referrals filed in
response to:
o POTW non-submittal of an
approvable pretreatment program
o other POTW pretreatment
violations
o industrial user pretreatment
violations
(list separately EPA, states)
IN SPMS/
COMMITMENT?
Yes/SPMS
MQ/B-11
REPORTING
FREQUENCY
Quarterly
No/No
Quarterly
-------
WATER ENFORCEMENT AND PERMITS
Pretreatment
ACTIVITIES
2. Take Actions
as Required to
Obtain
Compliance with
Pretreatment
Requirements
(continued)
>
o»
QUALITATIVE MEASURES
-------
Pretreatment
G
Pr«t r
Program
Implementation
*
i
i
ACTIVITIES QUALITATIVE MEASURES
3. ovrruiM.' (A) How do Regions/States establish
iu of priorities for pretreatment oversight
of POTWs?
(H) How do Regions independently
uusess the effectiveness of POTW
program implementation in pretreatment
Sidtes?
(O what are the criteria used by
EPA/States to select industrial users '
to be inspected? Do the Region/States
pljce a priority on inspecting Ills
oultject to Pederal categorical
standards which are located where
i he-re is no local program? What do
tln» results of these inspections
indicate? What use is being made of
IU results? Does the Region/State
include personnel from the approved
POTW in the IU inspection?
(D) Does the Region/State use th«
Audit/PCI checklist in conducting Krm
pn.'treatmunt reviews? If the
cliui-klist is modified, describe the
modifications.
QUANTITATIVE MEASURES
(a) Track, by Region, against
quarterly targets, the number of
(1) audits of approved local
pretreatment programs conducted
by EPA and the number approved by
pretreatment states; and (2)
inspections of approved local
pretreatment programs conducted
by EPA and the number conducted
by the States for POTWs.
-------
WATER ENFORCEMENT AND PERMITS
Pretreatment
ACTIVITIES
3. Overset}
Effectiveness of
Local
Pretreatmunt
Program
Implementation
(continui'd)
«j
00
QUALITATIVE MEASURES
(B) How are audits used by
Region/States to overview
implementation? What are the findings
from these audits? What follow-up
actions are taken when problems are
identified? Po the Regions review
State audnu and reports? How often?
Do i 3ions keep copies of State
audits, reports* and follow-up
documents on file?
(F) How are inspections used by
Regions/States to overview
implementation? What are the findings
from these inspections? What follow-
up actions are taken when problems are
identified?
(G) Are inspection, used to track
follow-up actions required by an
earlier audit? If not* how is audit
follow-up dotermi> ''
(II) Aside from audits and/or
inspections, what other oversight
mechanisms are the Regions/States
using to evaluati POTH performance
year to year?
(I) Are annual report submissions by
parws reviewed by the Region/State?
What criteria are used for these
reviews? Does the Region require the
l»fjrrw to use the SMC definition in
reporting on compliance by lUs?
QUANTITATIVE MEASURES
(d) Identify | of POTWs that need
to conduct local limits headworks
loading analysis (non-
pretreatment States, approved
prptreatment States).
IN SPMS/
OOMHITMENT?
No/No
REMRTING
FREQUENCY
Quarterly
(e) Track I of POTWs requesting
changes to local iimits (non-
pretreatment States, approved
pretreatment States).
(f) Track, by Region, against
quarterly targets, the number of
pretreatment POTWs which.
Regions/States determine have
issued adequate control
mechanisms.
No/No
Quarterly
No/OH
Quarterly
-------
ACTIVITIES
3. Over«»»
Effect ivi.-ne
Local
Pretreaiim.-nt.
Protjram
Implementation
(continued)
HATER ENFORCEMENT AND PERMITS
Protreatment
QUALITATIVE MEASURES
Ml Are POTHs considering all
of appropriate factors in developing
local limits, including protection of
water quality (State numeric standards
and narrative "free from* standards.
Federal criteria), sludge quality and
worker health and safety?
Characterize the changes being made to
local limits. What is the Region/State
strategy for assuring POTWs
develop/implement adequate local
limits? Do NPDES permits include
toxicity limits and numeric limits for
organic chemicals that may be used to
establish local limits? Are they
being reflected in local limits?
(K) Are control mechanisms adequate?
Are POTW enforcement procedures
adequate? How is adequacy determined
and what follow-up is taken when
deficiencies are found? Are control
mechanisms updated regularly to
address new pollutant levels? Do
mechanisms address organic pollutants,
hazardous constituents or toxicity?
(LI What mechanisms are being used by
approval authorities to determine if
local programs are properly applying
categorical standards to lUs? To what
extent are local programs failing to
properly apply categorical standards?
What problems are being encountered?
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
-------
ACTIVITIES
3. overs«fe
Effective-ness of
Local
Pretreat itx-nt
Program
Implement .at ion
(continued)
4. En 11 it cu
Pretrwtil muni.
Standards as a
Cont rol
Authority
CO
o
WATER ENFORCEMENT AND iERMlTS
Pretreatment
QUALITATIVE MEASURES
(M) Are POTWs taking necessary
(enforcement actions against industrial
users when they are in noncompliance?
Where POTWs do not act expeditiously,
what actions are the Regions/States
taking?
(A) Have Region/States completed an
inventory of categorical industrial
u»ers in cities without required
prutreatment programs? How wen- the
inventories conducted? How will the
inventory be maintained?
(B) Does the Region/State notify these
categorical industrial users of their
pretreatment and RCRA
responsibilities?
(C) Does the Region/State receive .m<)
evaluate baseline monitoring reports,
compliance reports, and periodic
monitoring reports from Ids in non-
pretteatment cities? How does the
Region establish compliance schedules
and monitoring frequencies?
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
(a) Identify | of categorical ills No/No
in nonpretreatment cities (report
non-pretreatment States and
pretreal inent States separately).
3/89 and
9/89
(b) Track levels (percent) of
significant noncompl iance by
categorical Ids in non-
pretreatment cities*. (Report
separately for non-pretreatment
States and pretreatment States),
No/No
3/89 and
9/89
-------
ENFORCEMENT AND PERMITS
V.'
ACTIVITIES
4. Enforce
Pretreatment
Standards as a
Cont roi
Authority
(continued)
Pr treatment
QUALITATIVE MEASURES
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
(D) How do the Regions and States
identify and respond to 'industrial
noncompl lance with categorical
pre treatment standard deadlines in a
municipality where there is an
approved pre treatment program? Where
there is not an approved pretreatment
program? Are Regions/States having
difficulty implementing the SNC
definitions?
>
oo
-------
ACTIVITIES
QUALITATIVE MEASURES
WATER ENFORCEMENT AND PERMITS
Enforcement
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
1. MontiCy
Conn > Iiance
Problems
CD
K>
2. expand
Enforculmont
Efforts Under
the National
Municipal Policy
(A) Do the Regions'/States' compliance
rates show improvement in FY 1989?
(B) Is the QNCR regulation/guidance
being properly applied in the
Region/States? Is the Region
reviewing State QNCRs to ensure proper
reporting? If reviews identify
inadequate QNCRs what action is the
Region taking?
(C) Are there new reasons for
municipal/nonmunicipal noncompliance
in the Region/States? What is the
Regions/States strategy for dealing
with such noncompliance.
(A) Have the Region/States completed
filed enforcement cases against major
POTWs? If not, what is delaying
action?
(a) Track, by Region, the number
of major permittees that are:
on final effluent limits and
--not on final effluent limits
Hist separately: municipal,
industrial, Federal facilities}
NPDES States, non-NPDES
States}.
(b) Track, by Region, the I and 1
of major permittees in
significant noncompllance with:
final effluent limits;
construction schedules;
interim effluent limits
reporting violations
(list separately: municipal,
industrial. Federal facilities;
NPDES States, non-NPDES States)
Yes/SPMS
NQ/B-4
(a) Identify, by Region, the
number of major municipals on
MCPs that are not in compliance
with their schedule (report
EPA/State separately). *
Yes/SPMS
MQ/E-5
Yes/No
HQ/B-2
Majors:
Quarterly
(Data
lagged one
quarter)
Majors:
Quarterly
(Data
lagged one
quarter)
Quarterly
-------
WATER ENFORCEMENT AMD PERMITS
Enforcement
ACTIVITIES
2. EX|Mnri
Enforcx-mont
Efforts Under
tht.> national
Municipal Policy
(continued)
i
00
). i
Intlu:il rial
Compl iAncti with
DAT tiiul Water
Qudlity Bum.'il
Toxic
Requirements
QUALITATIVE MEASURES
(B) To what extent are the
Region/States still establishing
ix.»r mi t/compl lance schedules for all
remaining POTHs?
(C) How are the Region/States tracking
and documenting noncompliance with all
interim Milestones (non-SNC) in
permits/enforceable schedules? How
are the Region/States responding to
noncompliance with interin Milestones
in permits/enforceable schedules? How
ure schedules adjusted following
slippage? Where no action is taken*
what is the rationale?
(D) If there is major slippage in a
construction schedule, is the
liiMjion/State seeking judicially
imposed schedules? If not, why not?
(K) Are the Region and the States
i.'iiCorcintj MCP schedules for affected
minors? When will this be completed?
(A) How do the Region and each State
-------
WATER ENFORCEMENT AND PERMITS
Enforcement
ACTIVITIBS
3. Ensure
Industrial
Compliance with
BAT and Water
Quality Based
Toxic
Requirements
(continued)
QUALITATIVE MEASURES
(B) DO the Region and each State have
sufficient laboratory and
biomonitoring capability to conduct
the necessary analysis to support
toxic inspections?
(C) Are Regions/States implementing
the Compliance Monitoring and
Enforcement Strategy for Toxics
Control?
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
oo
4. Improyo
Quality and
Timeliness of
Enforcement
Responses
(A) How has the mix of enforcement
actions for the Region (AOs, penalty
orders) changed since gaining
authority to assess* administrative
penalties?
(a) ADMINISTRATIVE ORDERS
(1) Report* by Region* the total
number of EPA Administrative
Orders and total number of State
equivalent actions issued; of
these report the-number issued to
POTWs for not implementing
pretreatment. Report the number
of Class I and Class II proposed
administrative penalty orders
issued by EPA for:
--NPDES violations;
pretreatment violations} or
402 wetlands violations.
v.a/No
WQ/B-8
Quarterly
-------
ACTIVITIES
4. Improve
Quality and
Timeliness of
Enforcement
Responses
(continued)
00
Ul
WATER ENFORCEMENT AND PERMITS
Enforcement
QUALITATIVE MEASURES
(B) is the Region using the penalty
authority effectivelyin terms of
number of orders issued, timely
response and completion, effective
negotiation and advocacy?
(C) Is the Region conforming to the
Guidance on the use of Penalty Orders,
including the addendum on the Penalty
Policy?
(D) Has the Region experienced any
problems in carrying out the Class I
or Class II hearing process? How
frequently are hearings requested in
each Class?
IN SPMS/
COMMITMENT?
No/No
QUANTITATIVE MEASURES
(2) Of those reported in (1)
above, break out by the following
categories:
--municipal permittees
(major/minor)
non-municipal permittees
(major/minor)
Federal permittees
(major/minor)
unpermitted facilities 402
section 311 actions
SPCC
(list separately: EPA, NPDBS
States). Note: He recognize that
in some Regions these
responsibilities are split
between Divisions, in which case
each Division should Submit data
for its appropriate piece.
(b) Track the total amount of EPA No/No
administrative penalties
assessed.
(C) CLOSE OUT UNIVERSE No/No
I of EPA AOs with final
compliance dates between July 1,
1988 through June 30, 1989.
(d) CLOSE OUTS ACHIEVED No/OW
I and % of (b) which are
successfully closed out (the
final step is achieved or action
is referred to Headquarters or
DOJ).
REPORTIW
FREQUENCE
Quarterly
Quarterly
10/15/88
Quarterly
-------
ACTIVITIES
4. Improve
Quality and
Timeliness of
Enforcement
Responses
(continued)
>
00
HATER ENFORCEMENT AND PERMITS
Enforcement
QUALITATIVE MEASURES
(E) How frequently are comments from
the public received on penalty orders?
Have any consent decrees been
modified by the RA as a-result of
public petition?
(P) Does the Region routinely use
109(a) administrative orders in
combination with penalty orders when
compliance has not yet been achieved?
(G) How frequently does the Region
have to institute collection actions
to collect administrative penalties
assessed? Do the NPDBS States have
administrative penalty authority?
Does the State authority meet criteria
for pre-emption of Federal action?
(H) Are the Regions/States working
effectively with Federal facility
coordinators to improve enforcement
response times to Instances of
noncompliance by Federal facilities?
If not, what is the nature of the
problem? Are approved States using
their full range of enforcement
authority against Federal facilities?
If so, what are the results? If nob,
whv nnl-7 '
QUANTITATIVE MEASURES
(6)
(1)
REFERRALS
IN SPttS/
COMMITMENT?
Yes/No
WQ/E-9
No/No
Report, by Region, the active
State civil case docket, the
number of civil referrals sent to
the State Attorneys General, the
number of civil cases filed, the
number of civil cases concluded,
and the number of criminal
referrals filed in State courts.
(2) | of 309 referrals or
equivalent actions generated:
civil referrals sent to
HQ/DOJ/SAGf
civil referrals filed)
criminal referrals filed
(list separately: EPA, NPDBS
States)
(3) Track the number of referrals 'NO/NO
(EPA and State) with penalties
assessed.
REPORTING
FREQUENCY
Quarterly
Quarterly
Quarterly
(4) Track the amount of time
lapsed from the time of
initiation of the case to filing
and the amount of time lapsed
from filing to signing of the
consent decrees.- Report by State
respectively.
No/No
Second and
Fourth
Quarters
-------
ACTIVITIES
QUALITATIVE MEASURES
HATER ENFORCEMENT AND PERMITS
Enforcement
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
4. Improve
Quality and
Timelinuss of
Enforcement
Responses
(continued)
oo
II) Do Region/States track AO
requirements closely? Have all close-
outs been reported to Headquarters?
Are they reported promptly upon close
out?
(J) How do the Region and States
unsure that violations of Court
orders/AOs get prompt enforcement
action?
(K) How is the enforcement agreement
used to identify enforcement
priorities and appropriate follow-up?
How does the Region assess compliance
with the agreements?
(L) What is the level of coordination
between the compliance section and ORC
in the Region? Are there any problems
in implementing the administrative
penalty authority? If less than
satisfactory, what steps is the Region
taking to improve coordination?
Identify by name and NPOBS No/No
number all permittees with active
consent decrees and report their
compliance status as follows:
in compliance with decrees;
in violation of decree, but '
remedial action taken) and
in violation of decree, ho
remedial action taken
(list separately: major* minori
municipal, nonmunicipal.
Federal).
(g) Track, by Region, the total No/No
number of settlements of
Judicial/Consent Decrees filed
in Federal Courts.
(h) | of follow-up actions on No/No
DMR/QA performance sample
results:
nonrespondentsi
permittees requiring corrective
action/
major permittees with
incomplete reporting.
Quarterly
Quarterly
Semi-
annual ly:
April 1,
1989 and
October 1,
1989
-------
HATER ENFORCEMENT AND PERMITS
Enforcement .
ACTIVITIES
4. Improve
Quality and
Timeliness of
Enforcement
Respon :««?
00
00
QUALITATIVE MEASURES
(N) What Is the level of coordination
between the NPDES States enforcement
program and the state Attorney
General's-Office? Are there
established procedures for
coordination and communication? If
less than satisfactory, what steps is
the State taking to improve
coordination? Are State AGs generally
filing cases Within the goal of 60-90
days?
(N) Have the Region and approved
States negotiated a basis for Regional
evaluation of the States' penalty
program, including identification of
sanctions which might be used in lieu
of penalties and the documentation
which mubt be maintained by the State
for review? Are States complying with
the- provisions of the agreement on
penalties? To what extent are Stakes
calculating economic benefit? Ace
States seeking penalties in the
majority of <: ises? Are States
gutting the penalty amounts they are
. seeking?
(o) What problems is the Region
encountering in assessing penalties
using the CHA Penalty Policy? Is the
Region experiencing problems/delays
with Headquarters reviews? Explain.
[s the Region generally getting the
penalty amounts identified in the
referral? What improvements could be
made to the review process to speed up
the referral process?
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
-------
ACTIVITIES
4. Improve
Quality and
Timeliness of
Enforcement
Responses
{continued)
00
HATE* ENFORCEMENT AMD PERMITS
Enforcement
QUALITATIVE MEASURES
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY.
IP) Do Regions/States use PCS to track
compliance with consent decree
schedules? If not, why not?
(Q) What types of action are being
taken in response to violations of
consent decrees? Are stipulated
penalties collected? Are civil
contempt proceedings initiated? Ara
the decrees modified? Are additional
compliance Monitoring requirements
imposed?
|R) What are the reasons Cor the
Regions/States failure to take
remedial action against permittees
that violate their consent decrees?
IS) What problems stiU need to be
addressed by the Region/States to make
the DMR/QA program more effective?
Should it cover pretreatment?
IT) How do you ensure the quality of
data collected by permittees and
subsequent data transfer, and data
storage in PCS?
|U) How do you promote better quality
of future DMR data when drafting new
permits?
-------
HATER ENFORCEMENT AND PERMITS
Enforcement
VO
o
ACTIVITIES
4. Improve
Quality and
Timeliness of
Enforcement
. Respona<;s
(continued)
5. Non-NPDES
Enforcement
6. increase Use
of PCS as the
Primary Source
of NPDES and
Pretruatment
Program Data
QUALITATIVE MEASURES
(V) What procedures does the Region
have in place to Identify criminal
cases? What role does the Office of
Regional Counsel play In
Identification and case development?
Has the staff provided technical
support for criminal Investigations
and prosecutors? How has the Region
made use of the new CWA criminal
enforcement authorities?
(W) What Is the trend In the number of
EPA formal enforcement actions
relative to State activity since the
implementation of the timely and
appropriate criteria in PY 85?
(A) Have the Region/States taken any
enforcement actions to protect water*
including wetlands* from unpermitted
discharges of solid waste?
(B) What criteria does the Region use
in determining where Spill Prevention
Cpntrol and Countermeasure Plan
inspections should be conducted? Does
the Region always require that the
plan be amended after a spill of 1,000
gallons or more?
(A) Describe the use of PCS by the
States and the Region and explain what
steps are or need to be taken to
comply with the PCS Policy?
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
(a) Track* by Region, against
targets* the percent of data
entry of WENDB elements for
pretreatment and NPDES.
No/OW
Quarterly
-------
F
>
ACTIVITIES
6. Increase Uuu
ol PCS as the
Primary Source
of NPDCS and
Pretreatment
Program Data
(continued)
7.
Activities
HATER ENFORCEMENT AMD PERMITS
Enforcement
QUALITATIVE MEASURES
(B) What actions are Region/States
taking to improve the quality of- PCS
data?
(C) Do the Region/States use the
preprinted DMR for* to minimize
.compliance tracking problems and PCS
entry workload? What is the Region
doing to encourage the States to use
preprinted DMRs? If the States are
not using preprinted DMRs* why?
-------
ACTIVITIES
7. Improve
Effectiveness of
Inspection
Activities
(continued)
U>
Kl
WATER ENFORCEMENT AND PERMITS
Enforcement
QUALITATIVE MEASURES
(B) How do Regions/States determine
which facility and what type of
inspection to conduct?
1C) Why are total number of
inspections large, yet all majors are
not inspected at least once?
(D) How do Regions/States determine
the need for toxic/toxlcity
inspect ions/TREs?
(B) Do the Regions/States prepare
quarterly lists of facilities to be
inspected? Is the Inspection mix
consistent with the "primary use"
criteria included in the NPDBS
Inspection Strategy?
(P) How do the Regions/States use
DMR/QA performance sample results for
targeting compliance inspections?
(G) What mechanism is used to assure
that inspection results are provided
to the Regions/States in a timely
manner? Are the data entered into PCS
only after the report has been
completed and signed by the reviewer
or supervisor?
QUANTITATIVE MEASURES
(b) | of inspections:
permittee inspections (list
separately: major, minori
municipal, non-municipal.
Federali EPA, State)
toxic Inspections
biomonitoring inspections
(c) Identify the number of
Regional and State inspection
plans.
IN SPMS/
COMMITMENT?
No/No
REPORTING
FREQUENCY
Quarterly
No/No
October
1988
-------
WATER ENFORCEMENT AND PERMITS
Enforcement
ACTIVITIES
7. Improve
Effectiveness of
Inpsuct ion
Activities
(continued)
vO
8. Update and
Use EMS
Enforcument
Procedures
QUALITATIVE MEASURES
(H) How does the Region/State follow-
up when inspection results are
unsatisfactory? When Region uncovers
problems, does the Region/State
follow-up with a more intensive
inspection?
(I) Have the Region/States verified
that Reconnaissance Inspections of,
major permittees counted for coverage
purposes were conducted at major
permittees meeting the requirements
specified in the definition section? .
(A) For each State/Region which still
do not have written EMS procedures,
when will the Region/States have
written updated procedures?
IB) Have the Region/States implemented
use of the Violation Review Action
Criteria included in the PY 1986 EMS
as the basis for determining when
violations should receive
professional review? Do Regions/States
follow the Enforcement Response Guide
(ERG)? If not, when will the
Region/States begin to use these
criteria or equivalent criteria and
the ERG?
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
-------
ACTIVITIES
8. Update and
Use EMS
Enforcement
Procedures
(continued)
WATER ENFORCEMENT AND PERMITS
Enforcement
QUALITATIVE MEASURES QUANTITATIVE MEASURES
(C) What kinds of formal enforcement
actions are the Region/States using?
Has the Region reviewed each States
enforcement instruments to ensure that
they meet the definition of formal
action? Have the States made any
necessary statutory or regulatory
changes to ensure equivalency of State
administrative mechanism equivalent to
EPA section 309 AOs?
(D) What kinds of informal actions (if
any) are the Region/States using in
lieu of formal enforcement action?
Are these actions documented
properly? Are they effective?
9. Use Guidance (A) What is the screening process Used (a) EXCEPTION LIST UNIVERSE
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
Criteria and
Milestones for
Response to
Noncompllance
by the Region and States for
identifying violations and applying
SNC criteria? How are short term
violations requiring Regional/state
judgement handled? Does the Region
use the Exception List as a way of
tracking State programs?
(1) Identify, by Region, the
number of major'permittees in
significant noncompllance on two
or more consecutive QNCRs without
returning to compliance or being
addressed by a formal enforcement
action (persistent violators).
Of these numbers, identify how
many are in significant
noncompliance for three quarters
and how many for four or more
quarters. (List separately:
municipal, industrial, Federal
facilities.)
Yes/No
WQ/E-6
Quarterly
(Data
lagged one
quarter.)
-------
. in >.MMH-
Knf orc«Mu
ACTIVITIES
9. Uae Guidance
Criteria and
Milestones for
Response to
Noncompliance
(cont inued)
«o
in
QUALITATIVE MEASURES
(B) What management level reviews the
Exception List and how is it used?
How do the Region and States use the
Exception List to establish a priority
Cor committing compliance/enforcement
resources?
(C) What problems have the
Region/States been facing that would
prevent then from meeting the
timeliness prescribed? Which States
consistently miss commitments?
CD) Is there consistent application of
the criteria/milestones from State to
State within the Region? If not, what
steps is the Region planning to take
to improve consistency?
QUANTITATIVE MEASURES
(2) Identify by name and HPDES
number major permittees appearing
on two or more consecutive QNCRs
as being in significant
noncompliance with:
final effluent limits (FED
construction schedules (C8)t
interim effluent limits (IEL)
without being returned to
compliance or addressed with a
formal enforcement action* (List
separately: municipal,
industrial, Federal facilities}
NPDES States, non-NPDES States).
(b) EXCEPTION LIST TRACKING
.(1) Report, by Region, the number
of major permittees that are on
the previous exception list which
have returned to compliance
during the quarter, the number
not yet in compliance but ,
addressed by a formal enforcement
action, and the number that were
unresolved as of the end of the
quarter. (List municipal,
industrial, Federal facilities
separately.)
1H 8PHS/
OOMM1TMEOT7
HO/HO
tMSOMBHOt
Quarterly
(Data
lagged ot
quarter.
Yes/Ho
WQ/E-7
Quarter!}
(Data
lagged or.
quarter.)
-------
ACTIVITIES
9. Use Guidance
Criteria and
Milestones for
Response to
Noncompllance
(continued)
QUALITATIVE MEASURES
HATER ENFORCEMENT AMD PERMITS
Enforcement
QUANTITATIVE MEASURES
\o
CTi
(2) Identify the names and total
number of major permittees listed
In the Exception List universe
for the previous quarter for
which one of the following has
occurred:
--I returned to compliance
I not yet in compliance but
addressed with a formal
enforcement action
-rl that are unresolved as of the
end of the quarter*
and the number of consecutive
quarters each facility has
appeared on the QNCR. (List
separately: municipal,
Industrial, Federal facilities;
SNC With PEL, CS, IBLf NPDES
States, non-NPDBS States).
IN SPMS/
COMMITMENT?
NO/NO
REPORTINC
FREQUENCY
Quarterly
(Data
lagged on
quarter.)
-------
_ I
-------
VII.15
Guidance for the FY-1989 State/EPA Enforcement Agreement
Process," date June 20, 1988. See GM-57.
232:1
-------
7-2,-7 "7
-------
VII.16
"FY 1990 Office of Water Operating Guidance," dated March,
1989. Selected portions ONLY.
-------
-------
Agency
Operating Guidance
FY 1990
-------
TABLE OF CONTENTS
Z. ADMINISTRATOR'S OVERVIEW
II. PROGRAM OPERATING GUIDANCE
A. Office of Air and Radiation
B. Office of Water
C. Office of Solid Waste and Emergency Response
D. Office of Pesticides and Toxic Substances
E. Office of Policy, Planning and Evaluation
F. Office of External Affairs
G. Office of Administration and Re,arces Management
III. APPENDIX:' STRATEGIC PLANNING ANC MANAGEMENT SYSTEM
FY 1990 MEASURES AND DEFINITIONS
-------
Office of
Water
-------
-------
TABLE OF CONTENTS
Page
I. ASSISTANT ADMINISTRATOR'S OVERVIEW i
II. ENVIRONMENTAL INDICATORS 12
1. Protecting Our Sources of Drinking Water 12
2. Protecting Critical Habitats 13
3. Protecting Surface Water. 14
III. ENVIRONMENTAL PRIORITIES '. 15
A. Protecting Our Sources of Drinking Water-Activities
1. Public Water System Supervision 15
2. Ground-Water Protection ,.. 21
3. Underground Injection Control 25
B. Protecting Critical Habitats-Activities
1. Ocean Disposal Site Permitting and
Discharge 30
2. Near Coastal Waters/National Estuary
Program 33
3. Chesapeake Bay 38
4. Great Lakes 39
5. Lake Management 42
6. Wetlands 43
C. Protecting Surface Waters-Activities
1. Water Quality Standards 47
2. water Quality Monitoring and Analysis 49
3.. Water Quality Management . 53
4. Nonpoint Source 56
5. NPDES Permitting 58
6. NPDES Enforcement 61
7. Pretreatment 64
8. NPDES and Pretreatment State Program Approval,
Review, and Oversight 67
9. State Revolving Fund Management 68
10. Management of the Ongoing
Construction Grants Program 70
11. Municipal Waste Water Treatment Works
Compliance Maintenance and Infrastructure
Protection 72
12. Municipal Technology Transfer and Snail
Community Outreach 75
-------
IV. REGIONAL INITIATIVES ..... i........ 79
V. SUPPLEMENT GUIDANCE ~ ............. 81
SPMS MEASURES AND SPMS DEFINITIONS APPENDIX
-------
FY 1990 WATER PROGRAMS AGENCY OPERATING GUIDANCE
ASSISTANT ADMINISTRATOR'S OVERVIEW :
^^(^^^il^'eSieiBBI^Btal^^BM^^SMBM^MM^* .
The water portion of the Agency's FY 1990 Operating Guidance.
provides national direction to EPA, states, Indian Tribes, and
the regulated community in carrying out programs mandated under
Federal water protection statutes. These statutes include: the
Safe Drinking Water Act (SDWA), as amended by the Lead
Contamination Control Act of 1988; the Clean Water Act (CWA); and
the Marine Protection, Research and Sanctuaries Act (MPRSA), as
amended by the Ocean Dumping Ban Act of 1988. The Agency and the
States also implement programs to protect groundwater quality
through provisions underseveral different statutes.
The Office of Water (OW) uses a management accountability system
to set priorities, define performance expectations and track and
assess EPA and State performance. This system is vital to the
effective functioning of the Water programs because it links a
number of organizations at the Federal and State level (and, in
some programs, local governments as well) to a common, set of
objectives and expectations when they are operating under these
Federal statutes. The Office of Water Accountability System
(OWAS) includes the OW portion of the Guidance, the accompanying
SPMS measures, the OW program evaluation guide with quantitative
and qualitative measures, and the OW mid-year Regional
evaluations.
During the FY 1990 mid-year review process, the Regions provide
the OW Assistant Administrator with their projected operating
strategy and plan for FY 1991, including an overview of Regional
and- State priorities and their relationship to national
priorities. This is done before FY 1991 commitments are made to
set the context for negotiation of State work programs and those
commitments. The mid-year evaluations also provide the Regions
the opportunity to present and discuss Region-specific
initiatives. These initiatives are directed at correcting
Region-specific problems that will result in significantly
increased environmental protection or substantially reduced
health/environmental risks.
The term State does not include Indian Tribes. The terms
Indian Tribes, Indian Tribes treated as States, and Indian Tribes
with Primacy are inserted after the.term State where it is
appropriate to do so.
-------
Activities with associated SPMS measures are denoted by [SPMS]
appearing at the end of the activities. Additionally, in line
with the Agency format; activities increased.from the FY 1989.
Operating Guidance are indicated by a plus (+) in the left
margin, new activities are indicated by the letter (N), and
decreased activities are indicated by a dash (-). No notation
indicates that the level of activity is the same as in FY 1989.
PROGRAM PTBECTTOMS AMD PRIORITIES
As a Nation, we have made impressive gains in the battle for
Clean Water. 'Many of America's rivers, streams and lakes have
been restored through the Federal, State, and local investment in
science, regulatory actions, wastewater treatment. Generally the
Nation has drinking water that is abundant and safe. The price
for this level of quality is perpetual vigilance to ensure that
our protection systems are maintained. Wastewater treatment
systems must be constantly operated, maintained, and upgraded.
New industry and municipal discharges must be stringently
regulated. Drinking water sources must be protected, treated,
and monitored to deal with a growing list of contaminants.
Despite our progress, we have not eliminated the underlying
causes of contamination. 'In fact, they are growing with our.
population and economy. Habitat loss, especially wetlands and
coastal areas threatens the ecological values we are struggling
to protect. Nonpoint source pollution remains a serious problem
and is now attracting more Congressional and public attention
because our point sources are largely controlled. The plight of
our near coastal' waters and beaches is under scrutiny by the
Congress, press, and public. Preventing the contamination of our
underground sources of drinking water is an increasing concern of
Congress and the public. Clearly, our job is not done.
Our arsenal of water program tools and responsibilities is
abundant and public support for our programs is strong. New
programs like Wellhead Protection, Nonpoint Source and the
National Coastal and Marine Policy give us even greater
opportunities to be effective through stimulating use of
environmentally sound land management practices that augment and
reinforce traditional pollution control approaches.
In FY 1=90 we face the major challenge of maintaining the
integrity of our base programs and taking advantage of our new
opportunities, while facing substantial shortages in funding.
The programs we put forward in this Guidance are ambitious. Our
operating policy is to desand as auch Federal and State
performance as the system can generate, to stimulate increasing
cost-effectiveness in carrying out nany of our repetitive tasks,
-------
-3-
to advocate creative work-sharing arrangements among Federal,'
State, local and private programs, and to evaluate tradeoffs'
within A context of broad, basin-wide or State-wide strategies to
address areas of greatest risk and benefit.
Both the Clean water Act and the Safe Drinking .Water Act programs
are largely delegated to the States; thus effective State as well
as EPA performance is critical to achieve success under these
laws. In addition, EPA and States are increasingly dependent on
local governments i- newer geographic-baaed water programs such
as Class V Undergrc -,d Injection Control, Nonpoint Source,
wellhead Protectior.. and National Estuary Programs through
consensus-building. This leads to some competition between
Federal and State priorities, as well as tension between the
decentralized structure and the n»ed for national consistency,
which must be managed within a cl.mate of work-sharing and mutual
respect.
A sound Federal/State partnership is essential to implement
national programs in a comprehensive, coordinated fashion. In'
1990, as a result of new and continuing demands from Federal
Water statutes^ EPA and States must take a leadership rple in
building public awareness and support to address Federal, state,
and local funding needs in order to continue to:
o Reduce human health risks posed by drinking water
and protect ground-water resources that serve as
drinking water supplies;
o Prr-.-ct and maintain critical aquatic habitats,
including wetlands, from point and nonpoint
sources of pollution; and
o Protect and maintain the Nation's surface waters
'from point source discharges, especially hazardous
and toxic pollutants.
In addition, water programs will participate in EPA's strategic
effort to bring about a long-term shift towards pollution
prevention through source reduction and environmentally sound
recycling. EPA will develop its Pollution Prevention Strategy in
1989, with each program, including Water, formulating its own
plan in cr-junction with the States and Regions. In 1990 EPA
headquarters, Regions, and States will begin implementing a Water
Programs' Pollution Prevention Plan.
EPA's Water programs will work with Indian Tribes on a
government-to-goverraent basis to take all appropriate actions.
consistent with available resources,- and to assist Indian Trites
in improving and maintaining the quality of their water
resources. In 1990, as EPA completes pertinent enabling guidance
and regulations, EPA will place emphasis on awarding grants to
-------
-4-
Indian Tribes. In this regard, EPA will be reviewing and
approving Indian Tribe applications for treatment as States as
required by statute. In addition, emphasis will be placed on
improving communications with Indian Tribes and States to
encourage cooperative working arrangements.
A* Protecting Prinking Water Sources
EPA and State Drinking Water programs face many new challenges in
1990 in protecting drinking water at the tap and preventing
contamination of ground waters and surface waters that serve as
drinking water supplies. In 1990, EPA places high priority on
States accepting primacy for the new EPA regulations,
implementing the new program requirements, and enforcing against
violators of existing standards. In accordance with this
priority:
o EPA and EPA Regions will continue to develop safe
drinking water standards in accordance with the
requirements of the. 19-5 SOW A Amendments.
o States will need to increase enforcement
substantially, master new program capabilities,
and adopt new regulations to implement many new
provisions of the 1986 Safe Drinking Water Act.
Specifically,. States will be expected to:
Enforce the first new Maximum Contaminant
Levels (MCLs);
Expand monitoring requirements for volatile
organic compounds;
Assume primacy for the new requirements in
the surface water treatment, coliform, and
lead/corrosion rules;
- Initiate assessments of more than 9,000
surface water systems pursuant to the new
treatment rule with emphasis on approximately
4,000 unfiltered systems;
Enforce the ban on plumbing materials
containing lead and lead public notification
regulations; and .
Implement the provisions of the Lead
Contamination Control Act.
-------
-61-
. V .
* o Regions/States will reopen permits for organic
chemical plants, bleached Kraft pulp mills, and others
to incorporate technology-based and water
quality-based limits based on studies required at the
time of permit issuance, and will modify other major
permits as needed to impose necessary and appropriate
toxic controls. There will be more focus on developing
limits to protect human health. (Ongoing)
* o Regions/States will follow the interim sludge
permitting strategy by including sludge monitoring and
existing national sludge regulatory requirements in
NPOES and State sludge permits. (Ongoing) [SPMS]
o Regions/States will implement the RCRA permit-by-rule
requirement and establish corrective action
requirements where necessary for POTWs that are
receiving hazardous wastes not mixed with domestic
sewage. (Ongoing)
N o Regions/States will prepare permit strategies
addressing all CSO discharges by January 15, 1990.
(Second Quarter)
N o Regions/States will focus increased attention on
permit issuance to NPOES permittees discharging to
marine/estuarine waters, especially to control the
discharge of bioaccumulative and persistent toxicants.
(Ongoing) [SPMS]
6. NPDES Enforcement
The goals for the NPOES enforcement program in FY 90 are to
expand upon the success of the National Municipal Policy by
ensuring continued municipal compliance and to increase our
enforcement presence in emerging program areas such as toxic
controls and sludge. Specifically, in the municipal area
emphasis will shift from construction of facilities to improving
compliance of constructed facilities with final effluent limits.
EPA will develop a Municipal Compliance Maintenance Strategy
which will provide guidance for identifying the cause(s) of POTW
noncompliance through diagnostic inspections and establishing
compliance correction plans utilizing section 308 letters,
administrative orders, or where necessary judicial* actions.
In support of this municipal compliance emphasis, EPA will
increase attention to the enforcement of pretreatment
implementation requirements for POTWs, improve
monitoring/inspections to evaluate compliance with toxic
requirements in NPOES permits, and increase the use of diagnostic
inspections and tracking to identify and correct chronic
noncompliance. Administering agencies will coordinate .
-------
-62-
pretreatment and municipal enforcement actions so that, whan an
action is taken-in response to noncompliance in ona program,
consideration is given to the other.
Zn FY 90, the enforcement program will become more involved in
emerging program areas. EPA vill place a high priority on
identifying and enforcing toxic permit requirements. EPA, in
cooperation with the States, will implement the Compliance
Monitoring and Enforcement Strategy for Toxics Control. The
strategy focuses on inspections to monitor acute and chronic
toxicity; criteria targeting enforcement responses to violations
that pose the greatest potential risk to aquatic life and human
health; lab performance evaluation criteria for toxicity
analysis; and an updated DMR/QA program to meet new and expanded
needs for toxicity controls. EPA will also initiate enforcement
of permits for combined sewer overflows and enforcement of sludge
requirements in permits.
Headquarters
o. Headquarters will evaluate the use of available
enforcement mechanisms to ensure the optimum use of
enforcement authorities. Headquarters/Regions will
assess State penalty practices.. (Fourth Quarter)
N o Headquarters will provide guidance to set priorities
for monitoring and enforcement of sludge requirements.
(First Quarter) ...
N o Headquarters/Regions will revise NPOES Oversight
Guidance to establish criteria for more effective
oversight of approved States. (Second'Quarter)
N o Headquarters will provide a full range of assistance
to States and Regions to assure that PCS is being
utilized effectively and efficiently. (Ongoing)
N o Headquarters will take the necessary steps to assure
that PCS has the elements to allow for effective
linking to other information systems. This requires
entry of latitude/longitude data in PCS; identifying
other environmental information systems with relevant
information; and designing, distributing and using
specially designed programs to facilitate system
linkages, data download and uploads and data analyses.
N o Headquarters (OWEP/ORD) will expand the DMR QA program
to include a reference toxicant to test permittees'
ability to conduct whole effluent toxicity tests.
(Second Quarter)
-------
-63-
N o OWEP will coordinate with the Office of Municipal
Pollution Control in the*development and
implementation of the Municipal Compliance Maintenance
Program. (Ongoing)
*
N o Headquarters will continue to encourage Regions to
deliver inspector training and ensure that both new
and experienced inspectors receive program-specific
training. (Ongoing)
+ o Headquarters will work to implement the new EPA
Federal Facility Compliance Strategy, signed by the
Administrator on November 8, 1988. (Ongoing)
Rggions/States/Indian Tribes
o Regions.and States, using the entire spectrum of
enforcement mechanisms, will ensure compliance with
all formal enforcement actions (AOs, civil and
criminal) by tracking eases from initiation of
referrals to entry of consent decrees or court orders,
and by prompt follow up action when deadlines are
missed. (Ongoing)
o Regions will-provide technical support for criminal
investigations and prosecutions in program priority
areas. Regions shall refer to the Office of criminal
Investigation matters involving suspected criminal
violations, including significant unpermitted
discharge and false reporting, or -other fraud to the
Agency. (Ongoing)
o Regions will ensure that EPA judicial '
referrals/consent decrees and final administrative
penalty orders contain appropriate civil penalties
consistent with the CWA Penalty Policy; NPDES states
will comply with penalty provisions in the National
Guidance for Oversight of NPDES Programs. (Ongoing)
o Regions/States will take timely and appropriate
enforcement against SNC violations, including those
involving toxic pollutants. (Ongoing) [SPMS]
o Regions/States will increase the use of inspections to
assess permittee biomonitoring capabilities and
evaluate permittee procedures/techniques for toxicity
reduction evaluations. (Ongoing) [SPMS]
o Regions/States will continue.to ensure timely and
accurate data entry of WENDB data elements for
pretreatment and for administrative penalty orders.
(Ongoing)
-------
-64-
N o Regional enforcement staff will coordinate with Near
Coastal program staff to determine whether enforcement
action is required for less than significant
noncompliance. (Ongoing) .
N o Regions/States will monitor compliance with sludge
requirements in NPOES permits. (Ongoing)
N o Regions/States will develop and implement Municipal
Compliance Maintenance programs for anticipating when
a POTW will reach design capacity. (1st Quarter) -
7. Pretreatingnt
The goal is to assure that POTWs1 fully .implement and enforce
pretreatment controls for conventional,'nonconventional and toxic
pollutants and hazardous wastes that are necessary to protect
human health, the environment, and the treatment works.
Administering Agencies should give priority to: l) modifying the
requirements of the approved program and NPOES permit to
incorporate new requirements resulting from new or revised
regulations and to correct inadequacies identified in the
operations of the POTW pretreatment program, .and 2) identifying
those POTWs that meet the criteria for reportable noncompliance
and report them on the Quarterly Noncompliance Report. Where the'
POTW also meets the new definition of significant noncompliance,
formal enforcement action should be initiated when the POTW does
not return to compliance within a timeframe consistent with the
definition.
Administering Agencies, as they oversee local program
implementation, should continue to give emphasis to the
following three key areas to ensure effective implementation:
o Program Modification! Regions and States will formally modify
approved pretreatment programs to incorporate new requirements
or correct inadequacies. Modification and approval will
follow the October 17, 1988, amendments to the General
Pretreatment Regulations, and focus on the following four
areas:
a. Local Limita - in accordance with the 1985 policy .
memorandum and the FY 88 Local Limits Guidance Manual,
site specific technically-based local limits must be
developed for each approved program and periodically re-
evaluated. " .
'Throughout this section, wherever POTWs are cited, the sane
requirements apply to States or EPA acting as Control Authority
in lieu of local program.
-------
-65-
b. t^aal Authority - Consistent with section 403.8 of the
Pretreatnent Regulations, particularly as revised by the
PIRT rule, POTWs, and in some cases States, will need to
modify their legal authorities. * .
c. Control Mechanisms - Based on the FY 89 IU Permitting
Guidance Manual, and the PIRT amendments POTWs may need
to develop and issue stronger IU control mechanisms for
significant industrial users (SZUs).
d. Enforcement Procedures - POTWs are responsible for
ensuring the compliance of industrial users with
pretreatment standards, including talcing effective
enforcement actions within reasonable time frames. Where
approved programs do not specify detailed enforcement
response procedures, they should be modified to include
them consistent with the 1986 Pretreatment Compliance
Monitoring and Enforcement Guidance (PCME).
o Enforcements Regions and States will assure that POTWs operate
their approved programs and comply with reporting
requirements. Where POTWs fail to successfully implement
their program as measured by the guidance on significant
noncompliance, Administering Agencies should take timely
enforcement action to address the problem. Where the POTW
does not act promptly to correct the situation, formal
enforcement action should be initiated against the POTW to-
address the noncompliance.
Where there is an approved program, and the POTW has not
taken all actions available under its authority, to secure the
compliance of the ZU, action against both the POTW and the IU
will usually be appropriate. Where EPA or the State is the
Control Authority, enforcement action should be taken against
those lUs which have not complied with categorical standards,
giving priority to lUs where the POTW has been identified as
having interference or pass-through problems.
o Data Management! Regions and States will assure that POTWs
have in place and employ appropriate mechanisms to track and
determine compliance rates for SIU's, using the definition of
significant noncompliance when it is promulgated, and that
POTWs report such data at least annually. States and Regions
will employ PCS to* track pretreatment information and assist
, in identifying POTWs which meet the criteria for reportable
non-cozr.pliance and significant noncompliance. Regions and
States should also use PCS to identify the compliance of It's
where EPA or the State is the Control Authority.
For State-run pretreataent programs, special attention will be
given to monitoring and evaluating performance. Regions should
ensure that states are inputting data into existing tracking
.;
J
-------
-66-
systems as appropriate and should monitor the overall performance
of the program to ensure that industrial users are in compliance.
Where there is no approved local program Regions/states should
evaluate the need to develop local programs consistent with
section 403.8. ' .
Headquarters
o Headquarters (OWEP) Will promulgate changes to the
NPOES and General Pretreatment regulations based on
the recommendations of OSS. (Second Quarter)
N o Headquarters will propose changes to the NPOES
regulations on the Quarterly Noncompliance Report to
incorporate reporting requirements for pretreatment
implementation. (Fourth Quarter)
N o Headquarters will provide guidance defining the
definition of significant noncompliance for POTWs
which fail to implement their approved programs.
(First Quarter)
Reerions/States/Indian Tribes
' + o Regions/States will assess and provide technical
assistance to POTWs as they implement/enforce their
programs and adopt new regulations resulting from the
findings, of the OSS. (Ongoing)
+ o Regions/States will continue to place highest priority
on enforcement against POTWs consistent with the
guidance to be issued on significant noncompliance.
Regions should continue to report all POTWs on the
QNCR which meet the criteria for reportable
noncompliance. (Ongoing)
o Regions will use criminal enforcement authorities
against appropriate industrial users with special
attention on knowing/negligent introduction into a
POTW of toxic pollutants/hazardous wastes (as defined
by CWA sections 3ll(b)(2)(A) and 307(a); CERCIA
section 102; RCRA section 3001; TSCA section 7) in
excess of legal limits. Regions will provide
technical-support for criminal investigations and
prosecutions in pretreatment cases. (Ongoing)
- o Regions/States that act as control authorities will
implement/enforce the pretreatment program consistent
with national guidance, and will be -held to the same
standards of implementation as local authorities.
(Ongoing)
-------
* -67-
o Regions/States will ensure that all approved
pretreatment programs are inspected or audited
annually. . {Ongoing) [SPMSJ
* o Regions/States will assure that all POTWs with
approved programs for more than two years have in
place and are implementing adequate and enforceable
. control mechanisms for at least 95% of SIUs. (Fourth
Quarter)
N . o Regions/States will ensure that approved POTWs
implement the definitions for significant
noncompliance and significant industrial users as soon
as they are promulgated. (Ongoing)
8. NPDES and Pretreatment State Program Approval. Review, and
Oversight
In FY 90, the goal is to further strengthen the Federal/State
partnership by conducting effective oversight to ensure sound,
consistent implementation of State programs, improving the legal
and regulatory basis of current State programs, and approving new
State NPDES, pretreatment and sludge programs. As State NPOES
and pretreatment programs mature and as more States assume these
responsibilities, these activities continue to grow in
importance. In addition, EPA will work with any Indian tribes
seeking to administer the NPOES program as authorized by the WQA.
Regions will continue to negotiate agreements with their States
on manaring and overseeing NPDES programs consistent with the
oversight Guidance and applicable NPDES/pretreatment regulations.
By 1990, many of the initiatives begun in earlier years will be
institutionalized into other documents and agreements, and more
emphasis will be placed on follow up by. Headquarters and by
Regions to ensure the sound, consistent application of these
principles and practices.
The Regions, with Headquarters assistance, will continue to
review state programs to ensure that current State laws and
regulations provide adequate authority to administer and enforce
the national NPDES/pretreatment program requirements under the
CWA, as amended. Continued emphasis will be given to following
up on Action Plans established by States and Regions in FY
1988/89 to strengthen water quality based permitting for toxic
pollutants and toxicity.
The Regions will continue to encourage NPDES States to assume
authority for the pretreatment program, and will continue to
condition section 106 grants accordingly. Regions should
accelerate .efforts to encourage State program modifications for
general permitting authority, since this will be a key to
.successful implementation of stormwater program activities for
all NPDES States. In addition, the CWA amendments are expected
to produce increased activity with respect to State program
-------
-68-
assumptions, including development of approvable state NPDES or
other federally authorized programs to include sludge
requirements, and treatment of Indians as States.
Headquarters
o Headquarters will provide guidance/assistance to all
Regions in conducting legal reviews, correcting
program deficiencies, and responding to
litigation/administrative petitions from third parties
seeking withdrawal of State programs. (Ongoing)
.
N o Headquarters will promulgate changes to NPDES
Regulations to incorporate requirements of the Water
Quality Act of 1987, including the treatment of Indian
tribes as States, and to clarify existing regulatory
provisions. (Fourth Quarter)
N o Headquarters will work with the Regions to assist
Indian tribes seeking to administer the NPDES program.
(Ongoing)
Reaions/States/Tndian Tribes
o Regions will increase their oversight of State-run
pretreatment programs, and will take appropriate steps
to correct problems where States are 'not adequately
implementing/enforcing program requirements.
(Ongoing)
o Regions will continue to review/approve programs/prog-
ram modification requests for NPDES (including
pretreatment, general permits and sludge) and review
and approve partial NPDES programs. (Ongoing)
+ o Regions will work with States to implement their toxic
control action plans. (Ongoing)
9. State Revolving Fund Management
In the implementation of the State Revolving Fund program
authorized under Title VI of the Clean Water Act, .FY 1990 will be
the key to the future of the program. Almost 40 States are
projected to receive their initial capitalization grants by the
end of FY 1989 and the remainder during FY 1990. Most States
will therefore be completing their first SRF annual cycle by the
end of FY 1990. It is crucial to the success of the-SRF program
that EPA and the States provide the necessary technical and
financial resources. This is vital to ensure that each State's*
program is developed to effectively deal with municipal
wastewater financing needs of both large and small communities.
-------
U.S ENVIRONMENTAL PROTECTION AGENCY
Office of Water
FY 1990 SPMS Measures and Definitions
-------
-------
OF MATER
OBJECTIVE
FY 1990
Water Enforcement and
MEASURE
SRC CODE FREQUENCY
Assess toxicity control
needs and reissue major
permits in a timely manner.
Assure WOES permits are
fully in effect and
enforceable.
effectively implement
approved local pretreatment
programs.
Reissuance of priority
lunicipal permits which
jontain interim sludge
conditions.
t-ftcourage permitting
3f forts in near coastal
raters.
Track, against targets, the number of permits reissued to major
facilities during FY 90 (report NPOES States and non-NPDES
States separately).
Identify the-number of final permits reissued and the number
modified during FY 90 that include water quality based limits
for toxics. Of these, report number that are Individual
Control Strategies (NPOES States, non-NPOES States; report
major and minors separately.)
Identify, by Region, the number of pending evidentiary hearing
requests and track, by Region, progress against quarterly
targets for the evidentiary hearing requests for major permits
pending at the beginning of FY 90 resolved by EPA and for the
number resolved by NPOES States.
Track, by Region, against quarterly targets, for approved local
pretreatment programs: 1) the number audited by EPA and the
number audited by approved pretreatment States; and 2) the
number inspected by EPA and the number inspected by States.
Track, against targets, total number of permits issued to
priority sludge facilities containing sludge conditions
necessary to meet the requirements of CWA section 405 (d) (4).
Identify the number of permits reissued in near coastal waters
(report separately: WOES States and non-NPDES States).
WQ-11
W&-13
WQ-14
WCM5
WB-16
Q 1,2,3,4
Q 1,2,3,4
Q 1,2,3,4
Q 1.2.3,4
Q 1,2,3,4
Q 1.2,3,4
OW-30
3/89
-------
OFFICE OF WATEq
FY 1990
Hater Regulations and Standards Definitions
V»Q-6 Nonpoint Sources fcont.l
This measure begins the process of shifting the nonpoint source Management and control program from
the development stage in FY 1989 to implementation. Because the long-term focus of the nonpoint
source program is on watershed and site-specific clean-up projects, this measure will be modified
in FY 1991 to place highest priority on identifying and tracking major watershed and site-specific
nonpoint source pollution control programs and projects,
HO-7 Indian Tribe Program Grants
This measure assesses Agency progress in awarding CWA program grants to qualified Indian Tribes as
required by the WQA of 1987. Specifically, it tracks (by Region) the number of Indian Tribes
qualified to be treated as a State, the number of Tribes that submit grant applications, and the list
of Tribes that receive CWA program grants (include major activities and funding sources). Describe
Regional procedures for reviewing and ranking Indian Tribe grant proposals and for evaluating
performance.
OW-29
3/89
f
-------
OBJECTIVE
OFFICE OF WATER
FY 1990
Water Enforcement and Permits
MEASURE
SIHS CODE FREQUENCY
Achieve and maintain high
levels of compliance in the
NPOES program.
Track, by Region, the number of major permittees that area: on
final effluent limits and not on final effluent limits (list
separately: municipal, industrial, Federal facilities; NPOES
States, non-NPOES States).
Track, by Region, the number and percentage of major permittees
in significant nonoomplianoe with: final effluent limits;
construction schedules; interim effluent limits; reporting
violations; pretreatment implementation requirements (list
separtely; municipal, industrial, Federal facilities; NPDES
States, non-NPDES State).
Identify, by Region, the number of major permittees in
significant nonoomplianoe on two or more consecutive QNCRs
without returning to compliance or being addressed by a formal
enforcement action (persistent violators). Of these numbers,
identify hoy many are in significant nonoampliance for three
quarters and how many for four or more quarters. (Report
separately: municipal, industrial, Federal).
Report, by Region, the number of major permittees that are on
the previous exception list which have returned to copliance
during the quarter, the number not yet in compliance but
addressed by a formal enforcement action by the QNCR completion
data, and the number that were unresolved (not returned to
Compliance during the quarter or addressed by a formal
enforcement action by the QNCR completion date). (Report
separately: municipal, industrial, Federal facilities).
WQ/E-4
WQ/E-5
WQ/E-6
WQ/E-7
Q 1,2,3,4
Q 1,2,3,4
Q 1,2,3,4
Q 1,2,3,4
OW-31
3/89
-------
)
OFFICE OF
OBJECTIVE
FY 1990
Water Enforcement and Permits
MEASURE
SFMS CODE fREQUENCY
Achieve and maintain high
levels of ocnplianoa in the
NPOCS program, (continued)
Effectively enforce the
pretreatment program.
Report, by Region, the total number of (a) EPA Administrative
Compliance Orders and the total nvnber of State equivalent
actions issued; of these report the number issued to POIWs for
not implementing pretreatement; (b) Class I and Class II
proposed administrative penalty orders issued by EPA for NPDES
violations and pretreatment violations; and (c) Administrative
penalty orders issued by States for NPDES violations and
pretreatnent violations.
Report, by Region, the active State civil case docket, the
number of civil referrals sent to the State Attorneys General,
the number of civil cases' filed, the number of civil cases
concluded, and the number of criminal referrals filed in Stata
courts
Identify, by State, the number of POIWs that meet the criteria
for reportable nonoompliance (RNC) and tract by State the
number of POTWs in that universe where action taken either
resolved or established an enforceable schedule to resolve RNC.
report separately by State for each action taken: technical
assistance, permit/program modification, or formal enforcement.
Report, by State, the ccnplianoa status (RNC, resolved pending,
resolved) of each POTW in the universe as of the end of the
year.
WQ/E-8
WO/E-9
WQ/E-IO
Q 1,2,3,4
Q 1,2,3.4
Q 1,2.3,4
OU-32
3/89
-------
OBJECTIVE
OFFICE OK WA'I-KR
FY 1990
Water Enforcement dhd ttemtifcs
MEASURE
SFMS OOOE FREQUENCY
Identify ocnplianoe'
problems and guide
corrective action through
inspections.
Track, by Region, against targets, the nunber of major
permittees inspected and least once (oonfcine EPA and State
inspections and report as one number).
WQ/E-12
01,2.3,4
v-o
OW-33
3/89
-------
OFFICE o
FY 1990
Water Enforcement and Remits Definitions
HP 11/12 Permit RaispavMye« *!\oxic Permit" ff
Ihe universe for measure WQ-11 is the total number of major permits with expiration elates before October 1, 1990,
according to PCS data on October 10, 1989 (i.e., the number of major permits that have or will expire by the end of FY
')0). Measure WQ-11 is the total number of major permits issued with issuance dates (i.e., date signed by permit
authority) during FY 90. Status as of the close of each quarter will be taken from PCS on the 10th of the month
following the end of the quarter.
Measure WQ-12 is all permits (major and minor) that include water quality based limits on specific chemicals or whole
effluent toxicity and with issuance (modification) dates (i.e., date signed by EPA or State permit authority) during FY
90. -Of those permits, the number that are ICSs is to be identified. This measure deals only with final permits;
however, because ICSs may also be draft permits with a schedule for final issuance, this number of ICSs will not include
all ICSs. WQ-12 is specifically designed to count water quality-based permits issued in FY 1990. ICSs are a subset of
this universe. Since "limit" is specifically designed to exclude permits which only include monitoring requirements,
such permits would not be counted as ICSs.
A water quality-based permit limit is a limit that has been developed to ensure a discharge does not violate State water
quality standards. Such limits are expressed as maximum daily and average monthly values in Part I of the NPDES permit..
They can be expressed as concentration values for individual chemicals and/or pollutant parameters such as effluent
toxicity. Effluent toxicity can also be expressed in toxic limits. Limits should be reflective of data available
through water quality-based assessments and should protect against impacts to aquatic life and human health.
As a matter of policy, EPA regards the new statutory requirements to control point sources as a component of the ongoing
national program for toxics control. In the national toxics control program, all known problems due to any pollutant
are to be controlled (using both new and existing statutory authorities) as soon as possible, giving the same priority
to these controls as for controls where only 307 (a) pollutants are involved. Known toxicity problems include violations
of any applicable State numeric criteria or violations of any applicable State narrative water quality standard due to
any pollutant (including chlorine, ammonia, and whole effluent toxicity), based upon ambient or effluent analysis.
States amJ Uurjions will continue to issue all remaining permits, including those requiring the collection of new water
(juality liitii wliere existing data are inadequate to assess WQ conditions.
OW-34
3/89
-------
OFFICE OF MATER
FY 1990
Hater Enforcement and Permits Definitions
Performance Expectation: The goal of the State and EPA NFDES program is to have reissued Major and Minor pendts in
effect on the date the prior permit expires. Permit applications are due and should be acted upon during the last six
months of a permit's term. Host States and Regions, should be able to reissue loot of their expiring major permits
except where unusual, oonplex and difficult issues prevent timely permit reissuanoe.
Regional quarterly reports for these measures will be reported to the Director or the Office of Hater Enforcement and
Permits. .
UP 13 Evidentiary Hearings
The term "evidentiary hearing" is meant to enocnpass not only EPA issued permit appeals pursuant to 40dK 124 but also
any NPDES State issued permit appeals (whether adjudicatory or non-adjudicatory in nature). The meaning includes any
and all administrative appeals to permit conditions for major facilities, whether the appeals stay or do not stay permit
conditions. Evidentiary hearings for ERA issued permits are not considered to be pending if they are on appeal to the
Administrator as of the beginning of FV 1990.
An evidentiary hearing should be regarded as resolved once a final decision has been issued, a negotiated settlement has
been reached, or the appeal of an initial decision has been denied.
Performance Expectation; Evidentiary hearings should be resolved as expeditiously as possible. The target should
reflect resolution of all pending hearings. Although the measure is intended to reduce the backlog of pending hearings,
consideration should be given to new hearings requests made during FY90 that have priority over pending 'requests. Such
requests may be counted against oonmitments where they are priority cases (based on Regional/State evaluation).
MO 14 Pretreataent Audits and Inspection
A local prctreatment program audit is a detailed on-site review of an approved program to determine its adequacy. The
audit report identifies needed modifications to the approved local program and/or the POfW's NPDES permit to address any
problem*. Tlie audit includes a review of the substantive requirements of the program, including local limits, to
unsure protection against pass throutjh and interlerenue with treatment works .11 iJ Uie methods of sluttrje disfnsal. The
nw-35
\ j 3/89
-------
J OFFICE OF WATT3*
fY 1990
frtater Enforcement and Permits Definitions
auditor reviews the procedures used by the POTW to ensure effective implementation and reviews the quality of local
permits and determinations (such as implementation of the combined wastestream formula). In addition, the audit
includes, as one component, all the elements of a pretreatment compliance inspection (id).
In certain cases, non-pretreatment States will be allowed to conduct audits for EPA. If a non-pretreatment State has
the experience, training, resources and capabilities to effectively conduct audits, these audits could be counted. A
determination of whether a non-pretreatment state could conduct the audit for EPA will be worked out between EPA HQ and
the Region during the commitment negotiation process on a case-by-case basis.
The pretreatment compliance inspection (PCI) assesses BOTW conplianoe with its approved pretreatment program and its
NPDES permit requirements for implementation of that program. Tne checklist to be used in conducting a PCI assesses the
POIYI's conplianoe monitoring and enforcement program, as well as the status of issuance of control mechanisms and
program modifications. A PCI must include a file review of a sample of industrial user files. Note that this measures
tracks "coverage11 of approved pretreatment programs, not the number of audits or inspections conducted, which may be
greater than the number of programs since some programs may be' inspected/audited more than once a year.
Performance Expectation; At a minimum, audits should be performed at least once during the term of the POTW's permit.
Although an audit includes all the elements of a PCI, as one component, the activity should not be counted as both an
audit and a PCI} it should be counted as an audit. In any given year, all POIWs that are not audited should have a PCI
as part of the routine NPDES inspection at that facility, i.e. audits plus inspections should equal 100 percent of
approved POTMs, except where mitigating circumstances prevent this (mitigating circumstances will be approved during
negotiation process). For purposes of reporting, both audits and pretreatment compliance inspections should be lagged
by one quarter, i.e. same as NPDES inspections. Also, where both an audit and an inspection are conducted for a PQTW,
for purposes of coverage, only that audit will be counted.
WO-15; Sludae Permitting
Priority sludge facilities are: 1) pretreatment POIWs; 2) P0IWS that incinerate their sludge; and 3) any other POTMs
with known or suspected problems with their sludge quality or disposal practices. Pretreatment POIWs and POIWs that
incinerate sludge may be considered to be non-priority if such decision is supported by information, showing no cause for
concern. Ine sludge conditions are to be included in permits as the NPDES pern. -xpires and is reissued. The sludge
OW-36
3/89
-------
OFFICE OF HATER
FY 1990
Water Enforcement and Permits Definitions
conditions may be incorporated in another permit (such a permit issued under the Clean Air Act, or a State permit
pursuant to an agreement between EPA and the State) and referenced to the NFDES permit.
in accordance with EPA's near coastal waters initiative and the Marine Poli
-------
K.
OFFICE OF WATER
FY 1990
Water Enforcement and Permits Definitions
A facility is reported to be in significant nonocnplianoe for failure to ocnply with pretreatraent implementation
requirements when it meets the criteria identified in the guidance defining significant ranoompliance Cor pretreatnent
implementation.
A facility is considered to be "not on final effluent limits" if the permittee does not meet the definition of a
"facility on final effluent limits'* or when a permit, court order/consent order or an Administrative Order require
construction such as for a new plant, an addition to an existing plant or a tie-in to another facility. .A facility is
reported to be in significant nonocnplianoe with its construction schedule when it exceeds the criteria for unresolved
significant nonoonplianoe violations of:
construction schedule .
construction schedule and interim effluent limits '
construction schedule and reporting requirements
construction schedule, interim effluent limits and reporting requirements.
* *-*. *
A facility is reported to be in SNC with its interim effluent'limits when it exceeds the criteria for unresolved SNC
violations of:
interim effluent limits
interim effluent limits and reporting requirements
A facility is reported to be in SNC with its reporting requirements when it exceeds the criteria for unresolved SNC
violations of reporting requirements only.
Major P. L.92-500 permittees are tracked as part of the major municipals.
OW-38
3/89
-------
OFFICE OF WATER
FY 1990
Water Enforcement and Permits Definitions
O E-6/7 EKoections List
»
JCQ£: For SFMS report the renter only. As part of OMAS, report both the nunter and the name and the raater of quarters
:he facility has been in SNC.
a so, the name list mist be submitted with the numbers; only the fact sheet, with justification, will be reported'by the
15th day of the beginning of the next quarter. In regard to all major permittees listed in significant nonocoplianoa on
:he Quarterly Noncompliance Report (QNCR) for any quarter, Regions/NPOES States are expected to ensure that these
r'acilities have .returned to compliance or have been addressed with a formal enforcement action by the permit authority
a thin the following quarter (generally within 60 days of the end of that quarter). In the rare circumstances where
:ormal enforcement action is not taken, the administering Agency is expected to have a written record that clearly
justifies why the alternative action (e.g.,enforcement action, permit modification in process, etc.) was more
ippropriate. Where it is apparent that the State will not take appropriate formal enforcement action before the end of
lie following quarter, the States should expect the Regions to do so. This translates for Deceptions List reporting as
follows;
Exception Lists reporting involves tracking the compliance status of major permittees listed in significant
npl.iance on two or more consecutive QNCRs without being addressed with a formal enforcement action. Reporting
)egins on January 1, 1990 based on permittees in SNC for the quarters ending June 30, and Septenber 30, that have not
>een addressed with a formal enforcement iction by November 30. Regions are also expected to complete and submit with
Jieir Exception List a fact sheet which provides adequate justification for a facility on the Exception List. The fact
iheet should be submitted by the 15th day of the beginning of the next quarter. After a permittee has been reported as
returned to compliance or addressed by a formal enforcement .action, .it should be dropped from subsequent lists.
Reporting is to be based on the quarter reported in .the QNCR (one quarter lag).
tetumed to compliance (refer to the QNCR Guidance for a more detailed discussion of SNC and SNC resolution) for.
:xoeption List facilities'refers to compliance with the permit, order, or decree requirement for which the permittee was
>laced on the Exception List (e.g., same outfall, same parameter). Compliance with the conditions of a formal
enforcement action taken in response to an Exception lAst violation counts as an enforcement action (rather than return
jo compliance) unless the requirements of the action are completely fulfilled and the permittee achieves absolute
jompliancG with permit limitations.
OW-39
3/89
-------
OFFICE OF WATFR C
FY 1990
Water Enforcement are! Permits 'Definitions
nrial enforcement actions against non-federal permittees include any statutory remedy such as Federal Administrative
der or State equivalent action, a judicial referral (sent to HQ/DQJ/SAG), or a court approved consent decree. A
ction 309(g) penalty administrative Order (AO) will not, by itself, count as a formal enforcement action since it only
sesses penalties for past violations and does not establish remedies for continuing nonconplianoa. Unless the
cility has returned to oonpliance, a 309(a) oonpliance order should acoonpany the 309(g) penalty order. Formal
foroement actions against federal permittees include Federal Facility Conpliance Agreements, documenting the dispute
d forwarding it to Headquarters for resolution, or granting then Presidential exception.
E-B Administrative Orders
adquarters will report EPA Administrative Compliance Orders (AOs) and State equivalent actions from PCS. All AOs must
entered into PCS by the 2nd update of the new quarter to be counted in the report. (Include: POTW implementation
pe pretreatment AOs; IU AOs under pretreatment section 2(a)). The nunber of proposed EPA administrative penalty
ders should be tracked by Class I and Class II. For State-issued orders, proposed or initial orders should be counted
ere there is a two step process (i.e., proposed and final).
» E-9 Referrals
,e active case docket consists of all referrals currently at the State Attorney General and the nuntoer of referrals
led in State Court. A case is concluded when a signed consent decree is filed with the State Court; the case is
smissed l»y the State Court; the case is withdrawn by the State Attorney General after it is filed in a State Court; or
,e state Attorney General dt*.lines tu file the case. OBCH will report the same data for Federal referrals; State
ferrals will be reported to the Regions.
OU-40
3/89
-------
OFFICE OF HATER
FY 1990
WQ E10 Reporfrahle Nonoomplia
Regions and/or States should apply reportable nonoompliance (RNC) criteria to all approved POIW pretreataent prograns at
least twice between July 1989 and June 1990. All reporting should be a summary of information that la listed and
updated on the QNCR on a quarterly basis.
Report POIWs in RNC by EPA State (non-pretreatment state) or pretreatment State. Refer to the Guidance for Reporting
and* Evaluating POIW Nonoompliance with Pretreatment Requirements (Reportable Nonoomplianoe Guidanoe) for a definition of
reportable nonaompliance by pretreatment POIWs. The second quarter report should include the ranter of POIWs that net
RNC between July and December 1989. If a POIW was identified as RNC before July, 1989 and still meets the criteria, it
should be counted on the second quarter report. For the fourth quarter report include POIWs in RNC between January and
June 1990 and POIWs reported for the second quarter that were not resolved or resolved pending. Credit is given for any
of the three actions, listed in the measure, that resolves RNC (i.e., results in resolved.pending or resolved status).
However, if technical assistance is the chosen approach, a schedule for compliance should be established.. If the
schedule is, 90 days or longer, it should be incorporated into an enforceable document. End of year compliance status
should be reported for all POIWs that were identified as RNC between July 1989 and June 1990. Report the total ranter
of POIWs that are considered reportable nonoompliance (RNC), resolved pending (RP), or resolved (RE) as of the final
report. POIWs that are in compliance with enforceable administrative or judicial schedules to resolve RNC as of the
final report date should be counted as RP.
MD E-ll Pretreatment Referrals
The active case docket consists of all referrals currently with the State Attorney General and the ranter of referrals
filed in State Courts. OECM will report the same data for Federal referrals; State referrals will be reported to the
Regions.
HQ E-12 Inspections .
As the inspections strategy states, all major facilities should receive the appropriate, type of inspection each year by
either EPA or the state. As part of the NPDES inspection, verification of sludge management practices should be
conducted as appropriate. EPA and States collectively commit to the number of major permittees inspected each year with
OW-41
3/89
-------
p
OFFICE OF W^TER
FV 1990
Water Enforcement and Permits Definitions
Xnplianoe Evaluation Inspection (CEI), Compliance Sampling Inspection (CSI), Toxic Inspection (TOX), Biomanitoring
lection (BIO), Perfonnanoe Audit Inspection (PAI), Diagnostic Inspection (DIAG), or Reoonnaissanoe Inspection (RI).
xmnaissanoe Inspections will only count toward the commitment when they are done on facilities that naet the
I lowing criteria:
i The facility has not; been in SNC for any of the four quarters prior to the inspection.
i The facility is not a primary industry as defined by 40 OH, fort 122, Appendix A.
i Ihe facility is not a nunicipal facility with a pretreatment program.
mitments for major permittee inspections should be quarterly targets and are to reflect the number of major
rmittees inspected at least once. Ihe universe of major permittees to be inspected is defined as those listed as
jors in PCS. Multiple inspections of one major permittee will count as only one major permittee inspected (however,
I multiple NPDBS inspections will be included in the count for the measure that tracks the total number of all
ipections, see next paragraph) . .
s measure for tracking total inspection activity will not have a commitment. CEI, CSI, TOX, BIO, PAI, RI, and DIAG of
jor and minor permittees will be counted. Pretreatment inspections for lUs and POIWs will be counted only toward
{treatment inspection oonroitments. Multiple inspections of one permittee will be counted as separate inspections;
xmnaissanoe Inspections will be counted. It is expected that up to 10% of EPA resources will be set aside for
jtral inspections of minor facilities.
*n conducting inspections of POIWs with approved pretreatment programs, a pretreatment inspection component (PCI)
auld be added, using the established PCI checklist. An NPOES inspection with a pretreatment component will be
inted toward the commitments for majors, and the PCI will count toward the commitment for POIW pretreatment
spections. (Ihis will be automatically calculated by PCS.) Regions are encouraged to continue CSI inspections of
[Vte where appropriate. Industrial user inspections done in conjunction with audits or PCIs or those done independent
P0IVI inspections will be counted as IU inspections. Tracking of inspections will be done at Headquarters based on
:rievals from the Permit Compliance System (PCS) according to the following schedule:
OW-42
3/89
-------
OFFICE OF WATER
FY 1990
Mater Enforcement and Permits Definitions
INSPECTIONS
July 1, 1989 through Sep. 30, 1989
July I/ 1989 through Dec. 31, 1989
July 1, 1989 through March 31, 1990
July 1, 1989 through June 30, 1990
RETRIEVAL DATE
The First working day
after the second .update in:
Jan. 1990
April 1990
July 1990
Oct. 1990
*Inspections may not U entered into PCS until the inspection report with all necessary lab results has been ooopleted
and the inspector's reviewer or supervisor has .signed the completed 3560-3 form.
Note; SFMS only tracks the number of najor permittees inspected. OWNS tracks the nunber of inspections.
-------
OBJECTIVE
OFFICE OF WATER
FY 1990
Municipal Pollution Control
MEASURE
SPMS O)DE FREQUENCY
tata Revolving Fund
tanagement
tanagement of On-going
instruction Grants Program
Track, by Region, progress against quarterly targets for (1)
net outlays for combined construction grants and SRF, (2) net
outlays for construction grants, and (3) net outlays for State
Revolving Fund (SRF) program.
Track, by Region, progress against quarterly Regional
Headquarters targets for the number of States, by name, tftiich
have been awarded an SRF capitalization grants (cunulative by
quarter)
Track, by Region, progress against quarterly targets for the
number of Step 3, Step 2*3, Step 7, Marine CSO and PL 87-660
projects administratively completed.
NQ-8
WQ-10
Q 1.
Q 1,2,3.4
Q 1,2,3,4
OW-44
3/89
-------
ACTIVITIES
4. Improve
Quality ctnd
Timel ineus of
Enforci'ini.'nt
Respormus
(continued)
i
00
00
WATER ENFO te...i* AND PERMITS
Enforcement
QUALITATIVE MEASURES
CM) What is the level of coordination
between the NPDES States enforcement
program and the state Attorney
General *s Office? Are there
established procedures for
coordination and communication? If
less than satisfactory , what steps is
Uio State taking to improve
coordination? Are State AGs generally
filing cases within the goal of 0-90
days?
(N) Have the Region and approved
States negotiated a basis for Regional
evaluation of the States' penalty
program, including identification of
sanctions which might be used in lieu
of penalties and the documentation
which must be maintained by the State
for review? Are States complying with
the provisions of the agreement on
penalties? To what extent are States
calculating economic benefit? Arc-
States seeking penalties in the
majority of cases? Are States
gutting the penalty amounts they are
choking? .. . *...*.... r*ut;usi< i.u
(o) What problems is the Region
encountering in assessing penalties
using the CWA Penalty Policy? la the
Region experiencing problems/delays
with Headquarters reviews? Explain.
Is the Region generally getting the
penalty amounts identified in the
referral? What improvements could be
made to the review process to speed up
the referral process?
QUANTITATIVE MEASURES
IN SPMS/
COMMITMENT?
REPORTING
FREQUENCY
-------
-------
VII.17
A GUIDE TO THE OFFICE OF WATER ACCOUNTABILITY
SYSTEM AND MID-YEAR EVALUATIONS, FISCAL YEAR
1990", dated March/ 1989. Selected portions only.
-------
A GUIDE TO THE
OFFICE OF WATER
ACCOUNTABILITY SYSTEM
AND
MID-YEAR EVALUATIONS
Fiscal Year 1990
Office of Hater
U.S. Environmental Protection Agency
Washington* D.C. 20460
-------
TABLE OF CONTENTS
Page
I. INTRODUCTION i
II. THE OFFICE OF WATER ACCOUNTABILITY
A. Appendix A: The Measures 2
B. Appendix B: The Definitions 4
* '
III. THE OFFICE OF WATER EVALUATION SYSTEM
A. Prenegotiated Commitments and Quarterly Reporting....5
B. Regional Initiatives. 7
C. Mid-Year Evaluations. .7
D. Other Office of Water Information collection
Activities. 8
IV. TIMELINE FOR EVALUATION ACTIVITIES 11
APPENDIX A Measures
Public Water System Supervision A-l
Underground Injection Control A-7
Ground-Water Protection A-l3
Marine and Estuarine Protection .A-21
Wetlands Protection A-50
Water Quality standards. Planning s, Assessment... A-56
Water Quality Enforcement & Permitting A-67
Municipal Pollution Control ., ... A-124
APPENDIX B Definitions
Public water System Supervision B-l
Underground Injection Control B-9
Ground-Water Protection B-17
Marine and Estuarine Protection. .B-22
Wetlands Protection B-25
Water Quality Standards, Planning & Assessment B-27
Water Quality Enforcement & Permitting . B-37
Municipal Pollution Control .B-52 .
-------
asm/
Offica of
______ participate ir -lawr
stata stanaory *** OOM tt» Mgion
routlM aaoanim far
of dttnoiB i
If
to r
An thtr« any
^iwBtrT of oa
policy and quidwc* on seaca
owirviau tnar navw ban
diff icuit co iapmR? OB all
tM agrMMRta inclucki
prwnsions for OK valuation
of Stata pnalty practicas?
fNf \ n f HTUI.
Stata Projra«
nj SRO/ REPORXdi
4. prwrio* (A) n «nat actant hi* tha
Ef f acciw liaglon bvMVKaa tM
ouid«ca on Otrtigg of setts
Stata Piujiaia
(8) Ooaa tna Maglon cazxy out
a iauviaa of tagolariy
«^K»».I^ acaaiMRS of aacn
tna aoaquicy of autnoritiaB.
finding ana staffing and to
uwra * oamcntaa ability
to sat pragn* pnontiaa «d
«f faetivaiy tiri««snt tht aBBS
praorat? *at is tna fraqusn-
cy; i4io la involvad; «d now is
Stata? stoat is tna natura and
of foliev-^? aoat this
of Stata
and profiiaa*. g.-»:-at:cn
a? perioranca «d provitn; of
assistanca?
A-83
-------
4. isortdB (C) How fnqoantty dov t&t
atgion enact FOR. POT «d
HOOK? How aany ptrntta/
HBV
UHFKCian activity wtft
pvcieolar ««tiMU on tadc
pneim?
sue* ?togr»
4. Provic* it)
Ef factivw ptuijia* is nn By
of tin -JTOI* or in part), aau
cna Ragian ovamaw taa
parfoiaan» of eat State?
« Ragioi'a ravtaw ucluda an
aviiiiarinn of lesal autnori~
~-
i corncuvv
MR to ciuivLV
tdancmad oaf ieianeias?
D HOW an IM grants and
«ff«uv« uviaBiRUcian of
and
pnertty anas ;canc:ii«d in
« mo
-------
activities for SPECS facilities
wane/
1. Tepleesm (M Has tM Hsglon/State (a) Identify naber of POT* Ba/tb Quarterly
Corrective Action updated tMir trforasrinn on toe wftica a ROM pannit by role
Km* who receive murrtin has been emnUtfad.
i pipe or
l HaianUii waste (b) Of those POP* «Mcft »/tto
Ufltfl<» rail or dedicated pips,
(B) mat U CM statnsof RO& report CM total naeer of
Rtt t
nabUttMd * JO* pualt B
nil* (or wett mstfrst KOHi
Haw any FOIMi
true*, rail or
sine* ti» B«gion*i/st«t«
notification of
HO* Mtivtuac for 29CE5 raeilitia
)ect to CM
(conunad) BCRX permit By role, and
3004CU) Of
oorraeciw action process
iiciudai *ny or all of CM
appropriate reqairewnts specific steps of a i
estaUiSMd (e.g.. iCJOX RBER facility .
pamcs. mimtitmuj to 9EC5 investioauons. and corrective
panics. OCMTI? Is CM first measures.
stae* of CM corrective action
process. CM 33* tteiiity (d) list 3C3VC3CA clean -jp :a/:i) Ourteriy
AsaesaeRC, specifically projects IT. -^nicn a decision is
addressed? aade to disearqe to a ?OIW.
Specify control aeasure or
(O Haw are CM pretreaoent reojuireasncs in
suil IT. r--ai-.asi.-sj of f-sxtt
-------
ua
m* *ctivtti«» tor JSO3
(A)
itiawgy scat* By stata for
iapUMOini tftt regulatory
on Urn aanm ia tm OSS culaialong.
Stody (B> HH tt» Mgien uniad witft
POD* to i3pl«BB rtguutory/-
«9H <«. w
ilaltsl?
(C) M> tt» BMICD wadBtf wltt
tOEES VT*** to Uiitixu
ISM/
ft»
L. omiop «a tw wat ntiemte dew t» u> M«tify « laax sa^» u/31/n
M*9ian^sut« UM to jdd'dMcu pracrHcanc pfu^ue
auueipKUciv tzv CM list of WTBMU cue not y«e
*"** prasnBB? y tM M^muny of CM f
(I ttae «*a« itogsen^SutM CBOM iwwiy idncif i«d in ft 90
o miui'igB locftl Mtt CIBM ptwuusly
aodtiieKlORS <«( (Use
Is tM Mgun^tic* raiyiag pwtrmaewt suust.
aolaly on u* ROW to lOKtif/
preqrwsJtucst :»'OH Quarwrly
Cltt
(O How dDH 3» MTIOR jfpravvd cunng rr w (list
SCW
<4wtMr tt«y eovtituu A
sy v
tr*
is ret rw-aeir:*! u-.
A-49
-------
nan
'Of I
i napmants? aqoivalant actions loom by
- | to Xtt.
(!)
rtf*r a KJW for -ilur* to
. ty MBion, tM TM/9IB Qmarly
Of 3t£t* pntnananc HQriB"U
etvli am olatmi
in tM Hagion (2) ftapvt tM nafctr of O* Ha/»
am tM raapactlva aganciaa in
tM Statas? If lass tnan
tnat staps is tM
___^ , tattnj to itvrow o
coozdUaiuoA?
o
(0) Hw do tM Rations and oretraanant violations (list
Statas idantify and raspand to- sapuatcly O*.. Statas).
industrial noncoiplianct wttn ,
eataqorical pr*er«*aant
OMtUiMS ;n a
SSS«SSS.-s» a-
«___.__ -- i- ~«u -J\ stata tM naoar of
(eoBtaMBc tM OOt? i» tM Maienyatau tnat Has tM S*jiorvsut» tM «m of ^e i«*r.
prcvtdad tnir -«;. assistant to '
nar; of -_-.» =CZ
-------
' vas
stats/
ia*ttity. sapancaly. CM 3o/Va 10/31/84
Cff KUVWMSS of ay OVScaua co MUCC naear of pracmaBS roan
local Pr«ema»it aidmeraai UMTS co n --men naw ^^TT"'* control
scana puc* a priority on pnerwcaBic iOIUi on
u«picein» Itt «Dioec co «nforeaiDi* scMdola enac do
fadKal 1'Bi.f [iff l^ai scjndartt toe yvc tw soiouic
«4ueB an looadtAK* cMn aactamaa in plan (nan-
jnn»i"i i^§ ^[Y^|<*»»^y vaiae us*
Mtng aaoa of ID moles? (f) Track, oy Mglon, a^ainse aa/GW Quartariy
" CM Rs9ttivScau ur^ca cjuareariy caries. v» nsoir
fre* CM appcovvl of POSH -Jucn aaapiy 4ana? rr
tn CM ID trapaecMR? 90 vicn cMir ntorcaBanc
SCSfltSUXM TO «USUCV
(O How an audica usad By cancroi aacRani«BS.
aagtona/seaeas eo owrasu
upu0aflucioR7 viat an CM
from was* audica?
ow
«an
So tsa
raperta? :-tou :£:«*.?
^CMP C3pi«« a< sue*
reports jn£ i
-------
CtSRB/
3. CTwiaa (T) few an impacticna
Effac&ivanaM of by Mglom/Seataa to
tool gntnanant iapuaantaticn?Mac an
f indtngs
(C) An
tudt foUfw iy action
nquin* at aa aarliv aodtt?
If got. bow U audit
(H)
(I) A
rarMTf^ by POav*
By tt» MgioVStata? Mut
cntart* an ucatt for tBaaa
ammal An all FOIMi usinj
tft§ o«ftuition of tigniftcant
nonoonplianca IFOC quidnea.
July 19M) to tvaouata and
nport ID ^arfotaanca?
A-M
QSL^^^P.? *^QL9W^*t ^^**PW"*«j«aBw » kflpKM..^ ^
3. OiiriM (j) An FOB* oonsidariaa ail
Cf f aetivrast of afcr^nata factors in
local Uauts.
inc.-.illng pretacuon of totar
Program quality istata iwaric
iTpiaiarration xtandirdsaiidaarnuv* 'frai
froaf standards Fadanl
eritarU) , sludai quality art
uonar IWK& and t*f aey?
Qiancearua tftactangaa baing
ata» to local units, itat is
the Magiovscata stntagy for
assuring POOtt
Uauts? Oo ODES parait
woocity liaats vA
naaric Uauei for organic
cia^cals trar aay M usad to
su&lisn ^cal ^xits? Art
tr«y aain? raf lactae _-. -jsc*i
A-55
-------
(X) Art
? An raw anfotcamant
? How is
vnac
is cataan vim
oaficianciae an found? *n
ngolarly to .
jailutanc i«»»J»7 Oa
An tOStt caking nmssar/
usan -«an tmy
ui aencaiylianet? >t«an
do not acs ctpadietously. '-
an tna R«qions/Sta=ts
A-N
SI SK9/
«ra?H i n'" .
4. Osfom (At Haw* Moioystatas . ia> Idanufy of "itrpr ^rai
Pntnaoant as a cojpiacad an invaneory of tu» in nonpntnaoant citi«« rourai
Control Aucftoncy cacaoDneal tndostrial usan in (nporc non-pntnacant Sutas Quartan
eitiaa wttfiout nqjoind and pntnasant Stataa
How sapancaly).
NOW will CM ib) aapore en* pnonc o< aa/ao ___
inwaneory b* Inrainaar sisnt-.
A-9T
-------
(A) An State-eta pragma (aj Report By SUM tor
ef pacing dm lam existing sum rat pmgran tM percent *.«*.
eaa OB tM perfooenoa of at IDS ia rtytff<*Tit »»*»
art on local:
l. lonei^ (A) Bo eta R»nons'/states' (»> mot. by Mnon. « Yts^-stts S»)or»:
' ccqpUanc* nt« snow naMr of amjor pKSuetMS sMt UQ/E-4 QUBrtcr
iJHii'uvwau. la IT 1990? an: (Una
on final «ffluant liades ana em
(81 la tnt 9Ol not on final ffiont uaaex quarttri
Mjulatiavauidanoa baim (lut lapanuiy: =aiicipti.
erapvly applfad ia tna inrtmrnal. Foatcai facilicio:
MgioK^Stacac? is tna Ration MCCS Statas. noR-c-XSCS States.
rwrtwiag Star* OCRs to ««ur«
proper reporting? If reviaus ID) Track, by M9ion. -» Yes/sae Hajon:
identify i^rTrt'T OEM wnat and \ of aa^r penKsaes in vJQ/t-5 Qoarariy
action ia t&e Maeion tattnj? sieaificxnt aancaepuance visa: >OK« i
f ir^i «ffiant :^au;. ana quartan
(C> An there new reasons for construction seRaduies;
auuevavnannxucipal iaterta eff^arx i
nancorpiiance ia tne reporting nout;=ns
aejion, states? utat ia tne prrsrescae
tejiORC/States strategy for revingents
dealing vitn suen fiist Mparate:-,-: asisi
nxcspltanca? ^Oatriii. ?eotr&l :ac-.
:?2SS statas. ncr.-:?=£S
A-**
-------
^^^V^PIR fo^^p^^TI^^^^^P a^^J^^^^I^^^j flfStf^^^^^^T^^^^i^C T^^^^SZS^^^S ^^^cX^^^5^^2^^? ^^B^^^
I^^MhdMIBPH j^^^^^j^^^^^^^^^^^^^ _ IB^MlflA^HBMMferiM^^HH^^V ^^A fc
2. .nuowttnoA (X) Haw tna ftaotcnystataa la> tdancify, Sy aacion. ssa »/» Quartsriy
on tttlonal eoipunad fllad wfqtommtt naear of aajor <*»v"~r*'* on
niley rim aoalnct aajor POD*? If MC?» and tna tnat an are in
is daiaying action? eeopUanca witft .aair '"-
an tfte (b> Mport, By Ragloa, tna 3V9B Qoaitariy
ttiU iwfear of aajor facilitias
for all
Km*? , that
(C)
__ wttn all intaria (el MBOTC. by Stan, tba Sa/Sb Qoartariy
(non-SC) in y<»gHi raduction in:
.ta/anforeaaou scfladulaa? 9C witn ITL.
._^_^^ w nonco^Uanca (d) Mcore. by Stata. «a am> Ouarcerly
witn intaria aUaseonas in nwftar of aajor POlUi raqjoind
paodta/anforeaaeM scMduiaa? ' to dawaiop oosvosita corraccion
HOW an aSMdUaa adjustad puns*
following slifeaea? '*ar« no
acuon is takan. -«at is v»
rmonala?
A-lOO
SBKBB5S
. K sas/
follow 500091 101 If ttan la
in a construction scnaouia. is
Policy tna:
(ooRunuad) Zf not. 'J
(O An tna 9*jian «xi tna
(or afttctad amors? *» wiu
tnia «
(f) v*at ara tna
suv to
ua ^-i :< sac witn
fS, for aipr PC94?
(C) Hava nanoRa/scatas
^ssarafra Strata?/
ind a r,-staa isr ^ars;r-,--T;
1
»-toi
-------
urn
asms/
3. Bwv «> nv OB «» mtfon and
scat* dim enifflianet
aontceria? efforts to «nfore*
9X and rear yallty au*d
(B) CD t*» Mglm and
iatoratory and bicBonitortng
i conftct CM
. to
Mr H*oc» Control?
Do CM Mgicra/sum
8MR1S* CO
If not.
«rt bung taun to assun
A-102
"J-J*^J~
4. I^bov* IAI HOW tat tnt aox of (a) AOCCSawnvE ORaas
Quality and ' nfotccflRt actions for tM
of ta9ion (Mi. pwalty oratrs) (1) tacart. By Moion. e» ves/?t> . Ouarurly
oao?«a sue* gmonin? autnonty wtai naecr oi (at El*
to inttt aamnistrativ* ;ttu--^str«i;v» CoocUianct
pmtiM? His CM a*non us«d Cram and weal oseatr cf
CM aaxuuscneii* pnaicy scat* *quivaiant actions
aoenonty against tM full Iscupd; of tMst nport "*
rang* of JaciUtias ta anfitr issu*a » tOWi for not
a«ii*a*nting pratrwtaant; ;o>
cuss I and CUM II pncastd
admnistratii« penalty oraars
issuaa ay S\ iar:
viaiations;
tao*Rt violations; to
lcy orders
issviad 2y States isr :TSES
violations mi pretr«
A-IJ]
-------
2JSP3/
» Jt^q^x
«=. . *« ».« *
4. upon* aeov*. srsale outjy tM
Quality and following catsQoriss:
t asucipal ptmnm
(ccntu««l) (aajor/ainor)
rtdsnlptt
(amjor/ainsri
faeilitits 402
ill actions
(Use
Sut
cnt ia «o«* aa^ioa
Divisions, in
Oivtsun sneuld
suBnt diu for ics
A-10*
CT3>;
(8) Has tfts Rsvion «^trunna (Bi Trafle « total anouit at ao/ito
psnaicy auuionty? Zf so. unat stats acauutnti^T
** Q^ DCQDlSM? iJ
(C) ts t&s* MsQion cortfunmnj tc) Q^SUS^MMM^^SSC 2o«t2> io/is/89
to tM flBiaancs ontMusaof of rak «s v.v. iu-ol
Psnalcy Qrtisrs. tflcl^dm? ^AS co^iiaro *iatfls SVCUMII j^iiy i
" " i on ss« Pwsair/Policy? i989 sarcuqn .'iss 30. 1990.
101 His sfts ashler. «p«ri«r«l t» » jrt v. -i: Sk ACS :
jcy ptoeuns tn carr/tn; att tti«et ATJ* 30. :?89. v.^>.
ens Class X or cuss :: rjueizq iirol o=piiane« 4xt«s 9«r^
PCOCMS? How :r«qusfit;y an July i. :)d9 no, 2s* !0. :~o
- -
y»
c^ass? sut
A-10 J
-------
4.
Quality
(P tav frequently ara
^^^^^BU CC^H M I'"***
racaivad on panalty ouaui?
Hava any
aadiflad by tna RA aa a raault
of public petition? Ara tnara
any final panalty ordara for
ttttcA tna panalty la
and uncollactad for;
M days?
a an/
(1) Raport, by Ragion, tna
astiva State civil :
of civil rafamla
, to tna Stata Attorneys
nl. tha nunbar of civil
caaaa mad, cna nusear of
dVakM CvaaVeaV QQDCvULaiBVH* AflQ CDB
of criminal rafamla
filad in
Ouarearly
(2) of 30* rafamla
civil raf arrala aane to
tO/003:
civil rafamla filad;
(3) Ttauk ti»
of
panaltias pcoposad.
>i with
tkVHb
(tvlb
(«) Track by panic (in
acts nvbcr Suet ;
ciMt witn panaieias
and aopia
iy
A-10«
Quality and
Tia»iimaa of
Ottorcaaanc
(oanuiuad)
(Fi DOM tfl« tagjon routinaly
UM K>9(*) admuscraciw
^h^^A^h^^M J ^ ^^^^^^^ ^ - J ^^^ A ^ *^
OZQaW tU GBaWWCXOR w*W
panaicy otdan vnan eoipUJnc*
has not yac .* '
(O DO tna ana »«
aHittTUttraclva panalty
autnority? Zf not. iawn
authority undar conaioaration
in any of tfte Stata
lagialacaraa? Soaa cha Stata
autnority aaat crttana for
praBaBption of Fadarai action?
in ooqpiianca VISA Macraes ;
(H) How fzaquantly doaa tna in violation st ^acraa. att
Ragion nav» to inaeicata raoadial arsien Mxan; jnd
. L jg.joRg B, coUact ir. :ioi»s,:sr. st Decree, ro
(S) Saport tna nana and aneus
of ciM 'irm fron cna tiaa of
uiltntlon of tAa caaa to
filing and tftt aaom of tia»
lapaad fren filing co si?iuf>7
of cAa conaanc dacraaa for aacft
caaa. Rapart ay Staea
raapactivwiy.
(f) tdantify by naaa and :3BES
luear ail pamttaaa wicn
accrw coRsant ^aeraas and
raport »air coapiianca statua
4m foiioua:
QDS5B
So/Ho
Foorcb
Quartan
Ouarearly
Trace, r/ S*?:a;. -.-
A-107
-------
L>fflL
. ... jj An tflt MBions/SCBHS (tu * of follow^ mions on
^"^fof ^S»aitweootdlMB« molt*
of ~pn3ttcun glairing . (fcaass* t.
of tr» pcebMff M* inecBpWt* sporting.
U
toil nra* ot
r«aual
«
X* toe.
*U
«*on
OBt?
HO HOW do cat a^ion «d
5tatt* wsun sR*t violations
of court ordm/XIs
A-IM
SUB/
9ati.tr nd eeordicmaa a»a«sn tnt
i 9tqiea3 An s!»n any
(coRciQMdi jtfmmTifBB iVB pwxcy
Kfionty? Xf IMS can
MtilflCtBtY, -4IK SUPS U CM
, takanv to iaxoov*
(Ml ttK U t» Mwi Of
« sue* Atssmay c*wnl's
Otfic«? An ec«*«caui««
procvdw for soordmucn j
cmjueicicn? :f IMS van
tif.tfirtsr/'. '-rat sups u t
S'TiS- t
A-(09
-------
DISBB/.
4. r~ -aw on Bay CM Begianana
Tlaa..4as of basis tor -/*nonal cvtlnation
Mnctlan «Bicft wtoftt b* OMA
in
ibgr tt»
rvrtw? An
with tta pravtsianB of tt»
to
pmltiw u«ln»
PwltyPoiicy? Is tt
uitl)
HMdquwetn raviws? ruplitn
Is am
civ
in tn»
OOUufl
tn* nvitw i4ix«M to
*-uo
4. pmw (F) ID M*cm/3ut« UM KS
Oiuicy «d to crack
(Q) vtot typH of action «n
t»inj cam ^t response to
vioiauont of
mttf ltd? An
irtrtlrlftai
sanitaria?
nu >h«t an tM nnam toe
tM Kagiem/scataa failure to
taka rvoadial action agauve
ptmceaas cRat vioiau tMir
(S) Wat prabiaM still:
ta a* atttvssadoy tM
aseiovscatas to aaita c!»
ptu^iaa aen «ffacer*?
it
A-lll
-------
+SS&
4. Xapram (T) asw do Regions/States
Quality and ensure CM quality of dm
TlaaliMU of collected ty P«itcses and
data storage In IC5?
cccnciaadl
. . to How do Region/States
prom* Meter quality of
future on dna aMn dnfeim
MM ia pun to
mmuty crtauai cm*?
IQM dm tM Of fiei o<
play in
Has CM staff
, . i cectittcal fiut'ii u for
criaonl isnestiaaftiera end
Uioieatrnrt? HOW MS CM
i use of CM MX C*
jucnontia?
A-U2
\ ITi iSgg
5. airtUUfl (At HIM CM
to ptoMCt UKIT.
^cijrdi. (tc«
ducnu^v of solid vascc?
(B) vmc criteria <
MqionuM ia
spill mmcioi Cartioi
nun ii lanin pun
snouid M conducted? Does CM
KeoioR Always requn »ac CM
pun ae aendad after a
af l. 000 saiioa or sore?
4. I.-CTMM -jse (A> au';i _^t tM use of PCS 'A) Tracx. ay
ot ?cs u » ay s» States «J tte ae?ich vir^ta. v;
Prsaary aourc* cs ire «puu unat steps an. x «J~Y j. -'-a
Si 3o 'J» fur. States js
va r.tyru «c 3-a :ani »
"*
ss^r; is -rrsurs^* V
A-UJ
-------
ST3M/
«. ScraaMtat 1C)
onoficsastnt Hagiavstana taaat to
many Scurca of tM quality of ICS data?
(P) ttJtf U
OTCOIiaTMvlfl? dlTKC ^TatT^
ics? is tfl» angicp giving
prisrtcy in ttsistjncv ctt
fmdiagto
^
tliat an diTSCt QSSn Of YC5?
If StBM an not oiag ICS
: wltft tM.ICS fDUcy
Ming
-------
(C) ttat Meanua is end to
anon CMC inspection miles
an prowwJ«i to CM
Mgtbn/SCKM in * tlaaly
amir? *» CM a«
into scsoaiy after CM
(H) HBV dM tf»
wita »
tX)
wif Ul cue
tl»
spKi
-------
tfOM (C) WatWnaiof
maw
ttxt tbty BMC tnt
dtfUtttion of fooal action?
properly? Art tMy «ff«etlv»?
A-1U
"""^
21 SW5/ (BOttSB
9. CM OuiaaglM 1AI UMt U CM KIMRM? (A) t»r «""!» rrcr -
crlttrU ffid praetu usott By tl» Mqion wri ti> ld«tify. ay aagicn. er» ?«s/% Quarterly
HiltttoiM for StKM for iantlfyuig nae«r of aawr pMaattMs in :«'£- (Cou
itespORM to violation «nd iffirw} SC si^iif lent ncnoanpUjnc* an .ant
3xcaB?Uinc* ertt«rU7 Hou wt «nort ten no or aon conMcucivt QtCb
in? witMuc miming to ca^iijnct
AJMMIC or Ming attnsMd by * for«l
DOM tr» Mgian UM tforesgnt action (ptnistent
CM BCTPticn Uxt M * v«y of violator*!. Of tft«s« nrre»ra.
tracionj suet pm^nm? iontify new any *rt ut
*i^it
Mpurietiy: asucipai.
industrial. ?«dtm £ac:iisits.
A-119
-------
orstts/
l*wl (2) -Xesncify By
tla Pcctpcion List «* SFOB tuetr ait
~ HwOBtta anaviiB on co
Mf^st £t^fc 0wwatfMa>i*^h ?W^^» *
__, tUctoMaeusB signifies* nonecB^int vitn
priority ag^CBatttting final effluent Uaits (RL)
" nonrsetattUAs
-------
t&B
following AM ULUUIM!:
»BOCy«c In ooijpUwM Wt
(UK
facilities; SC win m. CS,
m;
»)
10. &) «U I*K erl»rt* «» UM> ty () t»e>e «* IM»T of Kami Hb/»
«L as i*gion» «d 9uc« w MUK tforentK actionttaMi by .
to oxain toxui tor slotw caplianc* DK end sum to addrtn Oarean
^ vioUtioM of studai
_
(Bi *<*IK an iM overall
flitting* of SIMM inspections?
10. TUi (C) An tMrt any
Stfare«B«rc as praoians in talon?
to *«« action aguast POCWs for sludgt
uit& optrauons?'
(9) '«**» R» an tft« soutot of
slude* vioucions. -*«t actions
an otinv tsMn to stop 1C
violations?
-------
-------
VII.18.
"Use of Administrative Penalty Orders (APO's) in FY 89", dated
March 13, 1990. Without attachments.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
. WASHINGTON, D.C. 20460
MAR 13/990
OFFICE OF WATER
SUBJECT: Use of Administrative Penalty orders (APOs) in FY 89
FROM:- Richard G. KozlowsJci, Director
Enforcenent Division j
*,*
Robert G. Heiss '
Associate Enforcement Counsel for
Water Enforcement
TO: Compliance Branch Chiefs (Regions I - X)
Regional Counsels (Regions I - X)
The purpose of this memorandum is to transmit for your
information a report on the use of administrative penalty orders
in FY 89.
FY 89 was a significant year for implementation of the Clean
Water Act administrative penalty authority. The number of
proposed orders increased 61% over FY 88 and the number of final
orders increased by 417%. As you will see from the report there
were improvements in other indicators as well.
While data for FY 90 indicates that performance to-date is
at approximately the same level as in FY 89, there are at least
four Regions which have not yet issued a proposed order this
year. We would be interested in comments as to why this is the
case and whether it may suggest a lower level of administrative
penalty issuance overall in FY 90.
Attachment
-------
ADMINISTRATIVE PENALTY ORDERS
IH FY89
This report summarizes use of administrative penalty orders for
NPOES and pretreatment violations during FY89. The data is drawn
from the Permit Compliance System (PCS), supplemented by hard copy
records as maintained on a dBASE data base management system, and
for final orders has been reviewed by the Regions in the penalty
data review process.
Proposed orders
EPA proposed a total of 220 administrative penalty orders in FY89.
This was an increase of 61% over the 137 proposed orders in FY88.
The number of proposed administrative penalty orders by quarter is
shown in Figure 1 below. Each quarter of FY89 showed significant
Proposed Adm f nistrat i ve PenaIty Orders
4trt-S7 1«t-*8 2TB-M
2no-89 3-O-I9 4trt-89
increases over the corresponding quarter in FY88. Also, the
pattern established in FY88 of proposing significantly more
administrative penalty orders in the third and fourth quarters
continued. This uneven quarterly distribution of APO enforcement
activity may represent higher productivity in the third and fourth
quarters caused by SPMS (now STARS) measurements, mid-year reviews,
-------
and other EPA organizational and administrative considerations or|
seasonal patterns in regional office enforcement activity where
inspections and enforcement planning occupy more of the first two
quarters and actual enforcement proposals the rest of the fiscal
year. In any event, the third and fourth quarters continue to
produce the most administrative penalty orders. .
The increase in the number of
proposed orders was across
the board against municipals,
non-municipals and industrial
users. Figure 2. shows that
the greatest increase was
against industrial users
(84%); second greatest
increase was against
municipals (65%); and the
third greatest against non-
municipals (51%).
INCREASE IN PROPOSED APOs
Figure 2
The proportion of proposed
orders which were Class II
decreased from 35% of all
orders in FY88 to 30% in
FY89. The reasons for this
decline are not clear. Some regions have expanded the use of Class
I actions against selected groups of violators and thus reduced the
proportion of Class II actions. These groups have included feed
lot operators, categorical. ItJs with reporting violations (where the
POTW is not the control authority), coastal seafood processors,
small oil well drillers
and placer miners.
In FY89 six regions
expanded the total
number of proposed
administrative penalty
orders. Figure 3
indicates the
increase/decrease in
APOs relative to FY88.
55% of all proposed
administrative penalty
orders were issued in
undelegated States. For
the 12 undelegated
States a total of 121
administrative penalty
orders were proposed.
Figure 4 shows use of
administrative penalty
orders in the
Proposed APOs - FY 89 vs FY 88
3D-
tt-
«
i,
I
>
a
1 a j « » ? i 10
Figure 3
-------
PROPOSED
lo IN wce
,*-
22 -
ao -
n .
18 -
14 -
12 -
10 -
6 -
4 -
a -
0_
I
I
I
TX LA FL SO
fl
APOs - FY89
IB3»THJ STATES
I
Mk
I
OK
1
10
Ml IE AZ *<
Figure 4
undelegated States.
In terms of the types of violations cited in the proposed
administrative penalty orders, there was a 162% increase relative
to FY88 in pretreatment APOs. Increases over FY88 were also shown
for administrative penalty orders with effluent violations (54%),
unpermitted and/or unauthorized discharges (39%), and operations
and maintenance violations (800%). The number of facilities cited
for schedule and non-reporting violations decreased slightly from
FY88.
Proposed administrative penalty orders for pretreatment shifted
significantly between FY88 and FY89. As a result of the
Pretreatment Initiative, actions against municipals (POTW's)
increased significantly. Class 1 APOs against municipals increased
fivefold over FY88; Class 2 APOs increased sevenfold. (See Figure
5 on the next page). In FY88 a majority of the proposed
pretreatment APOs against municipals were Class 1; in FY89 Class
2 APOs were in the majority.
Administrative penalty orders against industrial users were in
sharp contrast. For proposed administrative penalty orders against
industrial users the overwhelming proportion were Class 2 (79%) in
-------
PRETREATMENT APQs AGAINST MUNICIPALS
22
CSS *"*
Figure 5
FY88. In FY89, th|
proportion shifted
significantly with 80%
being Class 1 actions.
The reason for this
shift away from class 2
usage. against lUs
appears to be a .result
of a shift in the type
of violations cited. In
FY88 the Class 2 actions
tended to be against
categorical XUs with
serious violations of
their standards. FY89
Class 1 administrative
penalty orders against
XUs tended to be for
failure to submit
periodic reports.
Final orders
The total penalties for all concluded NPOES administrative penalty
orders in FY89 were $2,801,525. This is an increase of more than
500% over FY88 which was the first full year of implementation.
The total number of final administrative penalty orders was 166,
a fourfold increase over 40 final administrative penalty orders in
FY88. Of the 166 final orders, 120 were Class I penalty orders and
46 were Class II penalty orders. The final penalty orders were
issued for a variety of violations: 83 for effluent violations
(50% of total); 39 for pretreatment violations (24%); 11 for
failure to submit discharge monitoring reports or submission of
late reports (7%); 25 for unpermitted facilities or unauthorized
discharges (15%); four for failure to start or complete scheduled
construction (these are frequently NMP violations) (2%); and four
for operations and maintenance violations (2%).
Average Penalty Amounts for Final Orders
The average penalty amount for all (166) administrative penalty
orders which became final during FY89 is $16,877. This is a 25%
increase over the FY88 average of $13,545. This significant
increase reflected the greater proportion of Class 2 orders among
the final FY89 APOs. Class 2 orders were 28% of the total final
orders in FY89 and 20% of those in FY88. The average penalty for
Class 1 penalty orders rose slightly to $8,369 from $8,212. The
average penalty for Class 2 orders increased 12% to $39,097 from
$34,875.
The average penalty against municipals increased 48% to $16,343
from $11,067 in FY88. The average penalty against non-municipals
-------
AVERAGE PENALTY - FY89
BT VIOLATICN
«4,OS6
S11.TOO
*10,319
S7.B50
Hrriu
O * M
Figure 6
increased 32% to $15,311 from $11,627 in FY88. Thus, municipal
violators incurred slightly higher penalties on average than non-
municipal violators (excluding industrial users). In FY88 there
were no final Class 1 penalties against industrial users. The
average Class 2 penalty against industrial users in FY89 was
$41,583 compared.with $40,000 in FY88.
Among the categories of violations for which data is available, the
highest average penalty was for pretreatment violations. (See
Figure 6). The pretreatment average penalty was $24,056. The
second highest and most frequent penalty was for effluent
violations ($16,696). The average penalty for other types of
violations for which data are available are: non-reporting
($12,882), schedule ($11,700), unpermitted or unauthorized
discharges ($10,318) and operations and maintenance violations
($7,850).
-------
Oaa Acrainat Ma-iora
Over one-half of all final Class 2 administrative penalty orders
were assessed against facilities classified as Majors. For Class
1 final cases, 27% were assessed against Majors. The overall
percentage for all final orders was 34%. The percentage of final
cases issued to majors by region is shown in'Figure 7.
PERCENT APOS ASSESSED AGAINST MAJORS
701
60S
SOS
401
BT REGIOI - PV 1989
SSB
37*
33*
TJ*
m
10
Figure 7
Efficiencies of Use
The average penalty order in FY89 was concluded within 156 days of
being issued. Class l cases, on an average, took 136 days to
conclude; Class 2 cases, "210 days. In FY88 the average for all
final orders was 136 days; for Class 1 orders, 129 days; and for
Class 2 orders, 152 days. Thus the average number of days to
settlement increased for both Class 1 and 2 orders in FY89. The
average for FY89 Class 1 cases increased 7 days or 5% while the
average for FY89 Class 2 cases increased 58 days or 38%.
(Technically, the averages of days to settlement for the FY88 and
FY89 are not comparable since the possible worst case differs by
365 days between FY88 and FY89.)
-------
An analysis of the FY89 Class 1 cases indicates that the average
penalty for the cases concluded in less than 136 days (the average4"
for Class 1 cases) was $8,715. This compares with the average
penalty of $7,651 for those concluded after 136 days. For Class
2 final cases, the sane analysis was done. For the cases concluded
in less than 210 days (the average for all Class 2 cases) the
average penalty was $49,631. For the cases- concluded after 210
days the average penalty was $30,200.
& CoaclUSJOttS
Significant increases were achieved in FY89 for most major
indicators on administrative penalty orders. The number of
proposed orders increased 61% to 220; the number of final orders
increased 415% to 166; total penalties increased 518% to
$2,801,525; and the average penalty increased 25% to $16,877. It
appears, however, that increases of this magnitude for some of
these indicators were as a result of gaining succesful experience
and use. The level of increase achieved may not be sustainable in
the years to come.
Three major observations were made regarding the proposal of
administrative penalty orders: First, a disproportionate number
of administrative penalty orders were proposed in the third and
fourth quarters. Secondly, there was a decrease in the use of
Class 2 administrative penalty orders in general and against
industrial user violators, specifically. Third, 45% of the
administrative penalty orders were issued in delegated States.
For final orders the major observations were: Increases in average
penalty for both Class 1 and Class 2 final orders; a significant
increase (48%) in the average penalty against municipals so that
the average penalty for municipals exceeded that of non-municipals;
use against majors for over one-third of the APOs; and an increase
in the number of days between proposal and the final date to an
average of 156 days. Also, it appears that the longer a case takes
to conclude, on average, the lower the penalty.
Strategies for using administrative penalty orders seem to vary by
region. Most obviously, Region IV uses predominantly Class 1
orders; while Regions V and VII predominantly use Class 2 orders.
Three regions did not increase their use of APOs in FY89; the rest
did. Three regions settle orders, on average, much faster than
others. For pretreatment violations six regions issued APOs
against Industrial Users; nine Regions issued them against
municipals.
In summary, FY89 was a year of major increases in the use of
administrative penalty orders. Its predominant use continues to
be against violators of permit effluent limits but its flexibility
as an enforcement tool was shown in the sharp increase in use
against pretreatment violators. The number of APOs proposed in the
-------
first quarter of -FY90 increased over the first quarter of FY89.«?
However, use in the first quarter vas limited to only six regions.
Additional graphs and. information on FY89 administrative penalty
orders is provided in the following attachments: (1) the number of
administrative penalty orders proposed by Region; (2) average
penalty by Region; (3) average time to settlement; (4) highest
penalty by Region; (5) number of proposed pro-treatment APOs by
Region a list of final administrative penalty orders by Region and
State; (6) a list of proposed and final orders by Region and State;
and (7) a list of final administrative penalty orders by
and type.
-------
VII.19.
"CWA Civil Judicial and Administrative Penalty Practices Report
for FY 89.
2401
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OPr ICE Cr .
ENFORCSNSM7ANO
COMPLIANCE MCNfTCRlNG
MEMORANDUM
SUBJECT: CWA Civil Judicial and Administrative Penalty Practices
Report for FY89
FROM: Robert G.
Associate Enforcement Counsel /
for Water ''
James R. Elder, Director
Office of Water Enforcement
and Permits
TO: Gerald A. Bryan, Director '
Office of Compliance Analysis
and Program Operation
Attached is the Clean Water Act Civil Judicial and
Administrative Penalty Practices Report covering cases concluded
in FY89. The penalty numbers represent the decree or order
amount without reduction to present value for those penalties to
be paid over extended periods. If you have any questions
regarding this report please contact Kathy Summerlee of the
Office of Enforcement and Compliance Monitoring at 382-2879 or
Ken Keith of the Office of Water Enforcement and Permits at 245-
3714.
We look forward to receiving the final agency-wide report
when it is completed.
Attachment
cc: George Alderson
Ken Keith
Rich Kozlowski
Kathy Summerlee
-------
CWA CIVIL JUDICIAL AND ADMINISTRATIVE
PENALTY PRACTICES REPORT FOR FY89
1. Use and Level of Penalties
» «.»»« «<« *mt~ » -».-v_ .. .-.-
.r««. .,,*.. -This -report suaaarizc»^tlMrnigg"Bnd«4«vels«of.^civil-judicial
and administrative penalties in FY89 in cases concluded under the
Clean Water Act's National Pollutant Discharge Elimination System
("NPDES") program.
Section 309(d) provides that any person who*violates certain
enumerated sections of the Clean Water Act, any NPDES or Section
404-permit condition or limitation implementing any one of those
enumerated sections, any requirement in a pretreatment program,
or any EPA-issued administrative order, shall be subject to a
penalty of $25,000 per day for each such violation. Prior to
enactment of the Water Quality Act (WQA) in February 1987, such
violations were subject to a penalty of $10,000 per day per
violation.
Section 309(d), as amended by the WQA of 1987, also lists
criteria which the court must consider in determining the amount
of the civil penalty. Specifically, the court must consider "the
seriousness of the violation or violations, the economic benefit
(if any) resulting from the violation, any history of such
violations, any good-faith efforts to comply with the applicable
requirements, the economic impact of the penalty on the violator
and such other matters as justice may require."
The authority to seek administrative NPDES penalties is
found in section 309(g) of the Act. Prior to enactment of the
WQA in 1987, the Agency did not have authority to seek
administrative penalties. The WQA authorizes EPA to institute
Class I or Class II administrative penalty actions. In Class I
actions, EPA may seek penalties of up to $25,000, at a rate not
to exceed $10,000 per violation. In Class II actions, the
maximum is $125,000, also assessed at a rate not to exceed
$10,000 per day. Class II penalty proceedings must conform to
the Administrative Procedures Act. EPA issued guidance on
administrative penalty orders in August 1987, and Regional
Offices began imposing penalties shortly thereafter.
For purposes of settlement, penalties are calculated
according to EPA's February 1986 Clean Water Act penalty policy.
An addendum to the policy for the calculation of administrative
penalties was issued in August 1987. Essentially, the policy
requires the recoupment of economic benefit and a gravity
component. Adjustments are authorized for inability to pay and
litigation considerations. The economic benefit is typically .
calculated using EPA's BEN computer software program.
1A DA
-------
2. Statutory Changes to Penalty Authorities
There have been no changes to .the pe.-.alty authorities under
the Clean Water Act since the WQA of 1987.
»- 3. Possible Inf Inenees- "on -gge tma"Iaevel'-o<* Pena-lteies -
There are several factors which nay have affected t.:e amount
cf penalties the United States has received in settling or
litigating Clean Water Act cases in FY89:
\
a. For the second full year, the availability of
administrative penalty authority, pursuant to the WQA of 1987;
b. The Clean Water Act settlement penalty policy
which, absent ability to pay or litigation considerations,
requires recoupment of economic benefit and a gravity component;
c. .Use of the BEN computer model to calculate
economic benefit; and
d. The agency's emphasis on enforcement of the
National Municipal Policy and the pretreatment regulations.
4. Use of Penalties
Ninety-eight percent of the judicial cases concluded in FY89
included a penalty.* See Table 1. This continues the post-1985
trend of concluding virtually all Clean Water Act civil judicial
cases with a penalty. See Figure 1 (Use of Penalties in CWA
Judicial Cases FY75-89).
Virtually all administrative penalty actions in FY89 were
concluded with a penalty. See Table 4.
5* Judicial Penalty Profile
The penalties which establish the data base for the judicial
penalty profile include only upfront, cash penalties payable to
the United States.
Only entered consent decrees or judicial decisions are
counted as concluded cases in the data base. Multiple complaints
consolidated in one consent decree or decision are counted as one
concluded case.
* The one case concluded without a civil penalty was Ashland in
Region III which was also the subject of a criminal case netting
a penalty of over 2 million dollars.
24C'
-------
a. Number of Cases
The total number of judicial cases concluded in FY89
(including those concluded without a penalty) was 56. This is a
drop *to approximately theIwrel* reported-feri*fY96 " -flee- Figure 1.
b. Total Penalties
Total penalties for all concluded judicial cases in
FY89 was $9,744,000. See Table 1. See Figure 2 (Clean Water Act
Penalties By Year - Judicial Cases).
c. Typical Penalties
The median penalty for all concluded judicial cases in
FY89 (including those concluded without a penalty) was $50,000.
See Table 1. This is an increase from FY88 median of $37,500 and
a new high point for Clean Water Act NPDES Cases, see Figure 3
(Median Penalties - Clean Water Act - All Concluded Judicial
Cases).
d. Highest Penalties
The highest penalty in FY89 was negotiated by Region V
in a concluded case against Koch for $1,540,000. The next
highest penalty was negotiated by Region VIII against
Metropolitan Denver Sewage Disposal District for $1,125.000. see
Table 3.
e. Comparison of Regional Uses and Levels of Judicial
Penalties
Two Regions concluded cases with penalties of over one
million dollars in FY89. Region V obtained the largest amount of
penalties, $3,389,000. Regions III, IV, VI and VIII obtained
penalties of over $1,000,000 total.
In terms of the number of cases concluded, Region XV
concluded the most cases (15) followed by Region VI (9). See
Table 3.
6. Administrative Penalties Profile
The penalties which constitute the data base for the
administrative penalty profile reflect upfront, cash penalties
which are to be paid to the United States generally within 30 to
60 days. In a few instances payment terms extended beyond 60
days without interest payment. Since discounting these few
extended payments to present value would not change the data
significantly, they have not discounted.
-------
a. . Total Penalties and N^T»ber and Type of Cases '
Zn FY89 the total penalties for all concluded NPDES
administrative penalty orders was $2,801,525. This was an
increase of 500% over FY88 which was the first full year of
'implementation.- The total'"number* of fina^radministrativeupenalty
orders-was 166, a four-fold-increase over the 40 final
administrative penalty orders in FYS8. Of the 166 concluded
administrative penalty orders, 120 were Class I penalty orders
and 46 were Class ZZ penalty orders. The penalty orders were
issued for a variety of violations: effluent violations (83);
pretreatment violations (39); failure to submit discharge
monitoring reports or submission of late reports (11);
unpermitted facilities or unauthorized discharges (25); failure
to start or complete scheduled construction (these are frequently
National Municipal Policy violations) (4); and operations and
maintenance violations (4).
b. Efficiencies of Use
The administrative penalty orders in FY89 were
concluded, on an average, within 156 days of being issued. Class
I cases, on an average, took 136 days to conclude; Class ZZ
cases, 210 days. All of the penalty orders concluded in FY89
were achieved by consent order; none of the concluded cases were
decided as a result of a formal hearing.
c. Typical Penalties
The median penalty for administrative penalty orders
concluded in FY89 was $10,000. This was in increase of 18% over
the FY88 median penalty. The median for Class I actions was
$5,750 and for Class ZZ actions $35,000. Ninety cases were
concluded with penalties of $10,000 or more.
d. Penalties Issued to Municipalities
Sixty-one of the 166 respondents were municipalities.
The median penalty assessed against municipalities ($10,000) was
identical to the median penalty for all administrative penalty
orders concluded in FY89.
e. Pretreatment Penalties
Thirty-nine penalties were issued for pretreatment
violations, 27 to industrial users (ZUs) and 12 to municipalities
for failure to implement all or part of a pretreatment program.
The median penalty assessed against ZUs was $14,000; the median
penalty assessed against a municipality was $18,750.
f. Highest Penalties
The largest penalty order concluded in FY89 was issued
by Region Z against an industrial user, Imperial Pearl Company,
-------
for $100,000. The. next highest, issued by Region VI, was for
$98,000 against AT&T Information Systems Inc. The highest .
penalty against a municipality was for $65,000, issued .to the
City of McAllen/ Texas.
f . w<* *:.~-.» ~ConparJip9n Q^rR*gi!QRal"Ose-^iRd Level of -Penalties
w :' » :.
Region VI issued almost one-third (54) of the
administrative penalty orders concluded in FY89. In Region VI
authority for the NPOES program is vested in EPA for all but one
State. Regions IV and X had the second and third largest number
of final administrative penalty orders (29 and 14 respectively).
Region VI obtained the highest amount of penalties
($921,825). Region V had the second highest amount of penalties
($336,000).
-------
TABU I
CHA-HPDES
Total Civil Judicial Penalties
For All Caaea Concluded in FV 1989
Total
Dollars
Ho. Caeaa
v/Penalty
No. Caaee
w/o Penalty
Total
Caeea
i of total
v/Penalty
Average
Penalty
Average All
Conol. Caeea
Median Median All Mignee* Pen*
Penalty Conol. Caeee
9,744.000
55
56
981
177,164 174,000
99,000
SO,000
1,540,000
TABLB
CNA-HPOE9
Total Civil Judicial Penalties
By Size of Penalty PY1989
Zero $ S $5,000 < $10,000 < $25,000 < $50,000 < 100,000 <$1 Million fc $1 Million
1 4 37 9 15
18 2
i
1
!
*
J
>
.
»
*
4
r
TABU! 3
CNA-NPDB8
Total Civil Judicial Panaltiaa
Region Total
Dollars
1 206,500
2 388,000
3 1,616,500
4 1,356,000
5 3,389,000
6 1,011,000
7 137,000
R 1,355,000
9 80,000
10 205,000
£/ TOTAt $9*, 744,000
Ho. Caaea
w/Penalty
4
6
5
15
9
6
1
4
2
3
55
No. Caaes
w/o Penalty
0
0
1
0
0
0
0
0
0
0
1
Total
Caaea
4
6
6
15
9
6
1
4
2
3
56
t of Total
w/Penalty
loot
loot
83t
loot
loot
loot
loot
loot
loot
loot
98t
Average
Penalty
51,625
64,667
323,300
90,400
376,556
168, 50Q.
137,000
338,750
40,000
68,333
177,164
AjvsjB'OjajSj All
Conol. Caaea
51,626
64,667
269,417
90,400
376,956
168,900
137,000
338,750
40, pOO
68,333
174,000
Median
Penalty
93,2190
80,000
100,000
40,000
90,000
63,900
137,000
80,000
. 40,000
90,000
99,000
Median All
Conol. Cases
53,360
90,000 {
333,79,0 6
40,000 '
90,000 .
63,900 '.
137,000 {
00,000V
40,000';
90,000 *
90,000
Mlgnaet Pern
90,000
170,000
800,000
900,000
1,940,000
790,000
137,000
. 1,125,000
60,000
150,000
fl, 940, 000
-------
-------
VII.20.
«FY 1990 Guidance for Reporting and Evaluating POTW Nonconplianee
with Pretreataent Implementation Requirements", dated September
27t 1989. Reproduced at VI.B.33. this compendium.
-------
VII.21. FY 1995 Guidance Document for Enforcement and Compliance
AssuranceMemorandum of Agreement Process, September 10, 1994.
-------
£&!"*%
f A \
m^
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'" WASHINGTON, D.C. 20460
2 0 .1994
OFFCeOF
ENFORCEMENTANO
COMRtiANCE ASSURANCE
MEMORANDUM
SUBJECT: FY 1995 Guidance Document for Enforcement and
Compliance Assurance
FROM: r Steven A. Herman, As
Office of Enforceme
TO: Regional Administrators
strator
ce Assurance
A memorandum dated June 14, 1994, from Elaine 6. Stanley,
Director, Office of Compliance, transmitted the draft FY 1995
Guidance Document for Enforcement and Compliance and requested
your comments. We appreciate your comments s and have -'revised the
document to reflect these comments as well as those received from
Headquarters' offices. The final , guidance document f or v>
developing your FY 95 Regional/Headquarters Memorandum of --~
Agreement (MOA) is attached. This document sets the stage for
developing a landmark comprehensive and unified enforcement and
compliance plan.
We believe this final document is more reflective of our
intent to provide Regions with solid direction in developing a
plan to address OECA's strategic objectives for assuring
compliance, while also allowing the Regions flexibility to meet
these objectives during FY 1995. While recognizing the necessity
of maintaining traditional enforcement outputs for deterrence
purposes, we must strive to create the appropriate balance, as
envisioned by the Administrator, between traditional enforcement
activities and innovative approaches for ensuring compliance.
Further, we need to ensure that any changes in enforcement
activities are balanced with measurable, non-traditional
activities which promote compliance. During the last several
months the National Enforcement Investigation Center (NEIC) has
solicited Regional needs for support on their enforcement program
irf FY 95. The agreements reached for this support should be
reflected .in MOA negotiations.
OECA has attempted to incorporate in its MOA process the
relevant and successful features of MOA processes run by the
Office of Air and Radiation and the Office of Pollution
Prevention, Pesticides and Toxics. However, as the Agency's
first MOA which integrates enforcement and compliance assurance
-------
-2-
activities from all of EPA's media programs, the OECA MOA is more
comprehensive in scope than the single media MOAs you have
developed. As we proceed through this first year of the annual
OECA MOA process, all participants should recognize that we are
implementing this process for the first time, and that it will be
improved as we gain more experience.
When, submitting your Regional MOA proposal, please provide-
two copies to the Planning Branch, of the Enforcement Planning,
Targeting and Data Division within, the Office of Compliance by
November 4, 1994. The Planning Branch will facilitate the
coordination effort for finalizing and negotiating the MOAs and
consulting with other offices within OECA in the process. We
expect negotiation on the MOA will be concluded by January 13,
1995; Final signed MOAs will be transmitted to the Regions.
. \
I appreciate your commitment to making the enforcement
program stronger and more effective and look forward to working
together to achieve this goal. I also want to thank you and your
staff for past and future cooperation which has helped OECA get
off the ground quickly and effectively. Please address any
questions or concerns to Jack Neylan, Chief, Planning- Branch, at
202/260-7825.
cc: Assistant Administrators
Deputy Regional Administrators
Regional Counsels
. Regional Multi-media Coordinators
OECA Office Directors
-------
FY 95 GUIDANCE FOR THE ENFORCEMENT AND COMPLIANCE ASSURANCE
MEMORANDUM OF AGREEMENT PROCESS
I. INTRODUCTION
The purpose of the Headquarters/Regional Memorandum of Agreement (MOA) is to
implement a consolidated enforcement and compliance program to promote and achieve EPA's
national goals. The process is further expected to enhance Headquarters/Regional partnerships within
the new organizational structure, as we work together to strengthen well-established methods of
enforcement and develop new approaches to compliance assurance.
The FY 95 MOA guidance that follows begins the transition for developing a comprehensive
plan by unifying the enforcement and compliance planning process through the preparation of a single
MOA. The development of the FY 95 guidance was necessarily compressed due to the fact that the
Office of Enforcement and Compliance Assurance (OECA) was not officially reorganized until June
8, 1994. The development of FY 96 guidance will feature a timely and collaborative priority-setting
process involving media programs, Regions, states, and other partners. Such a process was not
possible for FY 95.
Our FY 95 guidance and MOA process focuses on building successful enforcement and
compliance assurance programs. This approach requires that this guidance define success in
enforcement and compliance assurance, and the next section provides that definition.
II. DEFINING SUCCESS IN ENFORCEMENT AND COMPLIANCE ASSURANCE
A successful enforcement and compliance assistance program is one which reflects the
following strategic objectives:
1.) Achieves compliance and environmental improvement by using a broad range of tools such as
compliance monitoring, expanded outreach, compliance assistance, and civil and criminal enforcement
actions;
2.) Maintains an imposing enforcement presence by keeping total enforcement outputs at current
levels, assures that violators do not profit from these violations, and ensures vigorous, timely, and
high quality enforcement against violations of environmental statutes;
3.) Uses multi-media, whole-facility, sector-oriented, and/or place-based approaches to target
remediation, enforcement and compliance assurance activities. Also incorporates environmental
justice and pollution prevention into targeting and planning activities.
4;) Moves toward measuring results and the impact of activities in more sophisticated and meaningful
ways.
As we proceed into FY 95, the MOA process will be used as a tool to integrate these four
XDECA objectives with enforcement and compliance assurance priorities identified by Headquarters
media programs, Regions, and states. The MOA guidance encourages the use of the full range of
tools to achieve compliance, but also recognizes the importance of maintaining traditional enforcement
outputs (e.g., civil/administrative/criminal actions and inspections) at the level of previous years. The
MOA process will be used to strike a balance between the need to move toward new approaches and
the need to maintain traditional outputs.
-------
Among the purposes for which your Region should use the MOA submission are to: .request
Regional adjustments to previously identified Headquarters media program enforcement priorities
(i.e., if that priority is not appropriate for your Region); propose Region specific enforcement
priorities not reflected in media-specific enforcement guidance (i.e., if you have identified a Regional
environmental problem which can be addressed through use of enforcement and compliance assurance
tools); and to propose trade-offs in the use of various tools and activities (e.g., the use of compliance
assistance in place of compliance monitoring inspections for a particular initiative, greater use of
multi-media cases and reduced production of certain single-media cases). All enforcement and
compliance assurance portions of MOAs developed in accordance with media-specific guidance should
be attached to this MOA.
This guidance explains how adjustments and trade-offs can be proposed in your MOA
submission so they can be discussed in MOA negotiations with OECA.
III. SPECIFIC FY 95 ACTIVITIES AND COMMITMENTS
The following discussion provides additional details for each of the four objectives along with
Headquarters support directed to each objective and a request for Regional activities which support
the objective. Regions should use this discussion as they develop their individual MOAs and tailor
activities and resources to their highest priorities. The MOAs should also reflect and incorporate the
agreements reached between the National Enforcement Investigation Center (NEIC) and the Regions
for support of Regional activities in FY 95. Section IV presents a format for the Regions to use in
preparing and submitting their MOA to Headquarters. ~
Objective 1: Using a Broad Range of Tools to Maximize Enforcement and Compliance
Description: EPA has a wide variety of tools to use to bring about compliance with the nation's
environmental laws. These tools can be seen as a spectrum - from compliance assistance designed to
prevent violations, compliance monitoring to identify violations, administrative and civil litigation to
correct and deter violations, and criminal prosecutions to deter noncompliance and to punish violators.
A successful program utilizes the full range of tools to achieve maximum compliance. The selection
and application of these tools should be tailored to the specific environmental or noncompliance
problem being addressed. For some problems, one tool is appropriate, for others a mix of tools is
the most effective strategy, while still others might require various tools to be used in stages, over
time.
Headquarters Support: To .facilitate this element of a broad and innovative enforcement and
compliance assurance program, the following activities are planned or underway at Headquarters:
Policies:
Issue a shutdown policy for repeat offenders. This policy will focus on the universe of
combustion facilities. (Resource Conservation and Recovery Act (RCRA) Enforcement
Division)
Develop a policy for determining National Pollutant Discharge Elimination System (NPDES)
compliance for limits below detection levels. (Water Enforcement Division)
-------
o Issue a policy providing for enhanced public participation during the enforcement process and
will, if appropriate, work with the Regions to launch a pilot project under this policy.
(RCRA Enforcement Division and Office of Site Remediation Enforcement)
o Develop a national Sanitary Sewer Overflow (SSO) policy in coordination with Office of
Water. (Water Enforcement Division)
Guidance:
o Worker Protection Standards Interpretive Guidance. (Agriculture and Ecosystem Division)
o Guidance on alternative compliance approaches for use with small towns.. (Chemical,
Commercial Services and Municipal Division)
0 Develop a multi-media plain english guidance to regulations for the dry cleaning industry.
(Chemical, Commercial Services and Municipal Division)
o Draft RCRA Waste Analysis Plan (WAP) Guidance for Boiler and Incinerator Furnaces
(BIFs). (Chemical, Commercial Services and Municipal Division)
o Develop Monetary Awards Program Guidance. '(Air Enforcement Division)
t
o Develop Field Citations Program Guidance. (Air Enforcement Division)
o Develop Citizens' Suits Guidance. (Air Enforcement Division)
o Develop the General Duty Clause Guidance under section 112(r). (Air Enforcement Division)
o Develop applicability and compliance guidance under the New Source Review provisions.
(Air Enforcement Division)
o Develop guidance for acid rain programs. (Air Enforcement Division)
o Develop guidance and provide assistance to Regions to ensure effective use of Alternative
Dispute Resolution (ADR), De Minimis settlements, and mixed funding. (Office of Site
Remediation Enforcement)
Training:
Organize and operate a facility in Washington, D.C., to train Headquarters, Regional, and
state personnel in traditional enforcement and innovative compliance assurance activities.
(Enforcement Capacity and Outreach Office)
Develop and conduct a Land Disposal Restrictions Update Course covering the Phase I and II
Rules. (RCRA Enforcement Division)
Develop and conduct a RCRA Enforcement Practitioners Course for regional and state legal
and technical personnel, provided that adequate funding can be obtained through the National
Enforcement Training Institute (NETI). (RCRA Enforcement Division)
-------
Guidance and training on Executive Order (E.G.) 12856 Federal Facility Pollution Prevention
Plans. (Federal Facilities).
Provide training on pollution prevention for inspectors and other enforcement personnel.
(Enforcement Capacity and Outreach Office)
Develop and conduct a course to "train-the-trainer" on environmental justice. (Enforcement
Capacity and Outreach Office)
Others:
Finalize a Federal Register Notice announcing EPA's intention to develop pilot projects under
the Environmental Leadership Program. (Enforcement Planning, Targeting, and Data
Division)
Continuation of work by an Agency-wide workgroup to address environmental auditing
issues. (Enforcement Planning, Targeting and Data Division).
Assistance in complying with new Municipal Waste Combustion Ash requirements.
(Chemical, Commercial Services and Municipal Division)
Additional Federal Facility Compliance Agreement (FFCA) Inspection Reimbursement
Interagency Agreements (lAGs) with Department of Energy (DOE), Department of Defense
(DOD), and Civilian Federal Agencies. (Federal Facilities) ~ "
Assist in Maximum Available Control Technology (MACT) standard implementation as rules
are promulgated. (Manufacturing, Energy and Transportation Division)
Promulgate Enhanced Monitoring Rule for major air pollution sources and conduct training
for Regions and States. (Manufacturing, Energy and Transportation Division)
Finalize Field Citations Rule. (Air Enforcement Division)
Chairmanship of FY 95 Worker Protection Initiative Workgroup and support to regions and
states on worker protection compliance monitoring and case development. (Toxics and
Pesticides Enforcement Division)
Develop technical documents on major industrial categories (relating to process, pollution
sources, and waste streams) for use by regions and states in enforcement programs. (National
Enforcement Investigations Center)
Work with the Office of Solid Waste and Emergency Response (OSWER) to assure timely
implementation of 40 CFR subpart S and Hazardous Waste Identification Rule - Contaminated
Media Regulations. (Office of Site Remediation Enforcement)
Revisit Cost Recovery Strategy to determine if changes to cost threshold are needed. (Office
of Site Remediation Enforcement)
-------
o Provide guidance to implement Superfund Reform Act (SRA) changes if SRA passes. (Office
of Site Remediation Enforcement)
o Review Enforcement Project Management Handbook, and amend if appropriate. (Office of
Site Remediation Enforcement)
o Initiate and maintain an electronic bulletin board for OECA to provide information to the
Regions, States, and regulated community. (Enforcement Capacity and Outreach Office)
Regional MOA Commitment: . .
For Objective 1, each media priority (listed in Appendix I)1 should be considered a work
component, as discussed in section IV, The MOA Process, "Description of OECA Objectives". As
described in this section, for each media priority your submission should provide an explanation of
activities, the support you will need from Headquarters, and the Regional commitment you are
prepared to make. In the event that the Regions feel the media priorities do not provide a complete
discussion of their enforcement and compliance programs, Regions should feel free to provide
additional information regarding their ongoing program efforts. Section IV provides a format and
examples of the level of detail expected. (To avoid duplication, wherever appropriate, reference the
enforcement and compliance assurance portion of your Regional media specific MOA, which you
should attach to the OECA MOA.)
The Region should also discuss its overall approach, to meeting the objective of using
appropriate tools to achieve maximum compliance, highlighting in particular the use of compliance
assistance in your Region's enforcement and compliance assurance programs. At the end of this
section, the Region should provide a specific list of compliance assistance activities they are
undertaking in FY 95, for example, workshops with industry groups on implementation of new
regulations or training sessions for states.
Objective 2; Maintaining an Enforcement Presence
Description: EPA must maintain and improve its capacity to use a deterrence-based approach for
assuring compliance. Enforcement actions are a primary means for assuring compliance because they
demonstrate to the regulated community that noncompliance will be detected and punished.
Inspections will remain a strong tool for achieving a Federal presence and for assessing compliance.
The credibility of the Agency depends on a strong and effective enforcement program. Traditional
enforcement activity remains a major motivating force for the regulated community's efforts to
comply with requirements and behave in an environmentally-responsible manner.
A successful program maintains an enforcement presence by keeping total enforcement outputs at
current levels. For example, we expect that total inspections should remain at a consistent level, but
within that total the targets for those inspections, as well as the mix of single media and multi-media
inspections, will necessarily shift over time. This also means that total case outputs should also
j-emain at least at current levels, but within that total there may well be shifts in the number of
outputs for particular categories of cases from year to year.
1 Appendix 1 includes the following media programs: Water; Federal Facilities; Air; Toxics;
Pesticides; RCRA; Remediation; Multi-media; and Criminal.
-------
Headquarters Support: To facilitate this element of a broad and innovative enforcement and
compliance assurance program, the following activities are planned or underway at Headquarters:
o Provide revised policy concerning the use of Supplemental Environmental Projects (SEP's).*
(Multi-media Enforcement Division)
v
o Complete the revisions to the RCRA Enforcement Response Policy. (RCRA Enforcement
Division)
o Revise the Clean Air Act penalty policy. (Air Enforcement Division)
o Complete Municipal NPDES Penalty Policy. (Water Enforcement Division)
o Revise the Significant Noncompliance (SNC) guidance for National Pollutant Discharge
Elimination System (NPDES) and Pretreatment. (Water Enforcement Division)
o Develop guidance to enhance settlements. (Office of Site Remediation Enforcement)
o Issue a guidance document that will assist the Regions in calculating the estimated economic
benefit of non-compliance. (RCRA Enforcement Division)
o Finalize policy guidance on ''global settlements." (Office of Criminal Enforcement/Office of
Regulatory Enforcement) . "*"'
o Hazardous organic National Emission Standards for Hazardous Air Pollutants (NESHAP)
inspection guidance. (Chemical, Commercial Service and Municipal Division)
o Multi-media Inspection Enforcement Program Guidance and Interim Final Status Report.
(Federal Facilities)
Training:
o Conduct an Advanced Penalty Policy Training Course for Regional personnel. (RCRA
Enforcement Division)
o Deliver Superfund Enforcement Course and Attorney Orientation Course. (Office of Site
Remediation Enforcement)
o Develop and deliver a comprehensive multi-media inspection training course. (Enforcement
Capacity and Outreach Office)
o Present a revised version of the Basic Inspector Training Course. (Enforcement Capacity and
Outreach Office)
o Present a revised version of the training course in Negotiations. (Enforcement Capacity and
Outreach Office)
-------
o Continue to provide training in the use of BEN/ABEL to support economic analysis of
enforcement case penalties. '(Enforcement Capacity and Outreach Office)
Other:
o Issue a plain language guide to the RCRA Civil Penalty Policy to assist the Regions in
explaining RCRA complaints and settlements to the general public. (RCRA Enforcement
Division)
o Draft integrated municipal inspection form for water incorporating NPDES, sludge, and
pretreatment. (Chemical, Commercial Service and Municipal Division)
o Provide BEN/ABEL support for economic analysis of enforcement case penalties. (Multi-
media Enforcement Division)
o Complete Non-Administrative Procedures Act (APA) administrative penalty enforcement
procedures. (Water Enforcement Division)
o Continue work on Sentencing Guidelines for environmental offenses. (Office of Criminal
Enforcement)
o Continue support and participation in the Regional Criminal Enforcement Counsel (RCEC)
workgroup, as pan of Office of Criminal Enforcement's (OCE's) continuing effort la\vork
with the regions and to define the role of RCECs. (Office of Criminal Enforcement)
Regional MOA Commitments:
Under Objective 2, Regions should include all proposed commitments for targeted measures
under the former STARS system. Targeted measures are those for which Headquarters and the
Regions negotiate up-front commitments for the coming fiscal year. For OECA purposes, these
targeted measures are conducting inspections and addressing drinking water fixed base
SNC/exceptions. Forms for these commitments have gone out either under media-specific MOA
guidance or under separate memo (i.e. water program). Therefore, the only portion of section IV,
The MOA Process, which applies to Objective 2 for reporting purposes is the reference to Regional
Commitments. Please attach summary charts to this document or reference pages in your attached
media-specific MOAs.
Objective 3; Using New Targeting Approaches
Description: A major purpose of the reorganization was to enhance strategic targeting of enforcement
and compliance assurance activities. Innovative approaches to targeting - such as those organized
around multi-media, whole facilities, industrial sectors, and geographic areas - offer at least two
Advantages. First, enforcement and compliance assurance resources can be oriented toward the full
range of environmental requirements which apply to a facility, industry, or geographic area. Second,
enforcement and compliance actions can be organized around environmental problems and broad
patterns of noncompliance rather than around individual provisions of single statutes.
A successful enforcement and compliance assurance program identifies opportunities to address
. environmental .problems and noncompliance patterns in industry sectors, geographic areas, and whole
-------
facilities. These problems and patterns become targets to which the various enforcement and
compliance assurance tools are applied.
Headquarters Stepport: To facilitate this element of a broad and innovative enforcement and
compliance assurance program, the following activities are planned or underway at Headquarters:
\
o Work with Office of Compliance and Program Office(s) on provision of inspection targeting
data in support of initiatives as needed by Regions. (Toxics and Pesticides Enforcement
Division)
o Provide Superfund Accelerated Cleanup Model (SACM) coordination support to Regions 4
and 9. (Office of Site Remediation and Enforcement)
o Development of a model sector compliance strategy. (OC Sector Divisions)
o Development of an interagency Memorandum of Understanding (MOU), with Customs, the
Securities Exchange Commission (SEC), and the Occupational Safety Health Administration
(OSHA). (Enforcement, Planning, Targeting and Data Division)
o For industrial categories, develop national and region-specific rankings based on historical
non-compliance patterns and Toxic Release Inventory data. These data will be used to review
MOAs, Regional targeting, and set the baseline for measuring success. (Enforcement,
Planning, Targeting and Data Division)
o Refine the Fortune 500 compliance and enforcement profile data and provide support to tfie
Regions, OC Sector Divisions, and ORE in the interpretation and use of the data for targeting
corporate-wide compliance and enforcement activities. Complete work with Dun & Bradstreet
to establish reliable corporate data linkages through Integrated Data for Enforcement Analysis
System (IDEA). (Enforcement Planning, Targeting and Data Division)
o Develop demographic and ecosystem targeting methods to support Environmental Justice
activities and ecosystem-based efforts such as addressing posted stream segments/contaminated
sediments. (Enforcement Planning, Targeting and Data Division) '
o Deliver software and user guides to facilitate calculation of wastewater pollutant loadings from
point sources. (Environmental Planning, Targeting and Data Division)
o Conduct assessment of current locational data in OECA databases to begin to improve our
ability to map facilities. (Environmental Planning, Targeting and Data Division)
o Provide compliance profiles on industrial sectors to facilitate targeting. (Enforcement
Planning, Targeting and Data Division/ Manufacturing, Energy and Transportation Division)
o Develop and implement a formal system for strengthening the participation of state, local, and
tribal authorities in the development of OECA planning, priority setting, and policy
development. (Enforcement Capacity and Outreach Office)
o Endangered Species Strategy (draft 30 days after Federal Register Notice). (Agriculture and
Ecosystem Division)
-------
o Pilot training in environmental justice communities designed to provide information on basic
statutory requirements. (Enforcement Capacity and Outreach Office)
o Ecosystem workplan. (Agriculture and Ecosystem Division)
o Review State Operating Permit program submittals under Part 71 of the Operating Permit
Program; provide legal and technical support to regions, states and local offices on volatile
organic compounds (VOCs). (Air Enforcement Division).
o Implementation of the Investigative Discretion Guidance issued in FY 94 and priorities
associated with it, including: data integrity, environmental justice. (Office of Criminal
Enforcement)
Regional MOA Commitments:
Under Objective 3, Regions should provide a narrative discussion of their targeting methodologies.
Innovative approaches to targeting include: multi-media; whole-facility; sector-oriented; place-based;
risk-based; environmental justice; and pollution prevention. Regions should specifically discuss which
of these innovative approaches they utilize and should provide detail for the strategies identified.
Regions should refer to section IV, The MOA Process, for the format for completing this section.
We recognize that this objective incorporates many of these new approaches for enforcement and
compliance. Therefore, we are particularly interested in Regional involvement, including pilots, in
any of these areas. For each identified area, Regions should describe activities they are undertaking
to support this area, requests for Headquarters' support and any associated commitments or.outputs.
Objective 4: Moving Toward Measuring Results and Impact
Description: EPA's enforcement and compliance assurance program has relied exclusively on
counting activities (e.g., cases issued, and dollars collected) as the sole means of measuring success.
Over the next two to three years the program should move toward a more balanced approach which
uses result-based and impact-oriented measures to supplement more sophisticated and useful methods
of counting activities.
A successful enforcement and compliance assurance program is one which contributes to the
development of new national measures and aligns data collection and analysis efforts with those
measures. Counting the full range of activities (e.g., enforcement actions and compliance assistance
efforts), measuring outcomes (e.g., the actual results of these efforts, not just their initiation), and
measuring impact (e.g., compliance rates, improvements in environmental conditions) will be crucial
to having a successful enforcement and compliance assurance program. Our proposed approach
involves four components, as follows:
1. Emphasize environmental results in enforcement. OECA recognizes the need to systematically
collect data on environmental results (e.g., environmental conditions, loading reductions) and program
impacts (e.g., value and nature of supplemental environmental projects (SEPs) and injunctive relief).
vTo accomplish systematic data collection, we have recommended introduction of the judicial and
administrative case completion data sheet. Work on the final data sheet is underway with involvement
by staff from several Regions. Preparation of the data sheets will be new work for Regional office
staff; however, it is the view of the work group that benefits gained from more systematic data
collection (in terms of both data quality and a reduced need for most of the ad hoc. end of year
-------
information requests) outweigh any increase in workload. We anticipate piloting the case data sheets
in two Regions in the first half of FY 1995, revising as needed and expanding to cover all Regions in
the second half of FY 1995.
2. Maintain current reporting on program measures. Although the Office of Policy, Planning and
Evaluation has announced the discontinuation of the STARS reporting system in FY 1995, continued
reporting of core enforcement measures is critical to the mission of OECA. Therefore, we expect the
Regions to continue to maintain and report this data. Regions should reference the FY 1994 Goals,
Objectives, Commitments and Measures Guidance (Office of the Administrator, March 1994) which
presents all Agency FY 94 STARS measures, noting that enforcement measures are identified with an
"E" in the code. OECA commits to review the FY 1994 media enforcement measures this year for
the purpose of determining which measures may be eliminated for FY 1996 reporting.
3. Measure compliance as well as enforcement activities. This re-engineering will be largely
accomplished using existing data and applying newly-improved data linkages, SIC codes, and facility
location information. The modifications that are planned (e.g., developing cross-media compliance
profiles by industrial category) will generally be accomplished through new computer data integration
and retrieval capabilities and will be carried out by Office of Compliance staff. We do not anticipate
that these changes will add to existing Regional or State reporting burdens.
4. Broaden measures of enforcement output through the implementation of an Enforcement
Activity Index. We are developing more comprehensive activity indicators to provide comparable
visibility to criminal enforcement activities, significant administrative actions, and significant activities
that address noncompliance at Federal facilities. These activity measures will also focus needed -_
attention on case conclusions, which as activity measures better link to environmental benefits than
case initiations. OECA is recommending a set of four indexes - one each for civil judicial cases,
criminal cases, significant administrative actions, and significant activities that address noncompliance
at Federal facilities - which when viewed together would constitute an enforcement "profile." The
index is intended as an enforcement communication and management tool, not as a tool for resource
allocation. We anticipate piloting the index in the second half of FY 1995 and that all Regions will
be involved in FY 1996.
Headquarters Support: To facilitate this element of a broad and innovative enforcement and
compliance assurance program, the following activities are planned or underway at Headquarters:
o Pilot test and implement the Case Completion Data Sheet. (Enforcement Planning, Targeting
and Data Division)
o Complete the design and definition of the Enforcement Activity Index and develop guidance to
assist the Regions in implementing reporting mechanisms. (Enforcement Planning, Targeting,
and Data Division)
o Re-engineer reporting using existing data and measures of SNC and compliance status/rates to
incorporate multi-media, sector, and environmental justice perspectives. (Enforcement
Planning, Targeting and Data Division) >
o Docket will be enhanced to incorporate data needed for OECA Measures of Success effort,
and other user recommended changes. (Enforcement Planning, Targeting and Data Division)
10
-------
o .Federal Facilities Tracking System (FFTS) User's Manual and Training. (Federal Facilities)
o Annual A-106 Regional Review Guidance. (Federal Facilities)
o Provide guidance on the compliance and enforcement use of enhanced and periodic
monitoring data. (Manufacturing Energy and Transportation Division)
\
o Permit Compliance System (PCS) enhancements - ability to switch from a two digit year
code to a four digit year code to input a year greater than 2000 and ability to print on-line
retrievals. (Enforcement Planning, Targeting and Data Division)
o The IDEA system will be enhanced to have a Windows interface. Training on IDEA will
continue. Regions will also continue to provide assistance to Regions on special projects.
(Enforcement Planning, Targeting and Data Division)
o Air Facility Subsystem (AFS) - a PC utility will be provided to assist in the calculation of
source class from emission and attainment data. (Enforcement Planning, Targeting and Data
Division)
o Training on OECA enforcement and compliance databases will be scheduled for Regions as
needed (including Docket, PCS, etc.) (Enforcement Planning, Targeting and Data Division)
o Develop acid rain allowance tracking system. (Air Enforcement Division)
Regional MOA Commitments:
For Objective 4, Regions should describe the commitment it is prepared to make to: support
development of improved or new measures of success; participate in efforts to collect information
(e.g., the case completion data sheet) needed for new measures; and participate in pilot projects to
actually implement new measures. Regions should follow the format provided in section IV, The
MOA Process; however, the activity should cover whatever new measurement effort they have
underway-cither participating with Headquarters or independent Regional efforts-and then discuss
where Headquarters support is needed and identify any commitments or completion dates if available.
The Region should also discuss its overall efforts to improve the quality of enforcement and
compliance assurance data.
IV. THE MOA PROCESS
This section describes the schedule and format for submitting, reviewing, and completing the MOAs.
A. SCHEDULE FOR SUBMISSION/NEGOTIATION PROCESS
o The Regions will have until November 4, 1994 to submit their MOA proposals. The
Regions should follow the outline provided in this guidance and attach enforcement and
compliance assurance sections of their FY 95 media specific MOAs. In FY 96 all
enforcement and compliance activities will be consolidated within the OECA MOA guidance.
Each Region should submit its MOA proposal to the Planning Branch, of the Enforcement
11
-------
Planning, Targeting and Data Division within the Office of Compliance. The Planning
Branch will coordinate this effort, consulting with other offices within OECA.
'o The escalation process for addressing issues prior to MOA submittal will proceed as
follows: Staff level discussions will occur early in the process to provide for understanding,
clarification, and resolution of issues where possible and will frame the discussion of regional
priorities and program tradeoffs as necessary. One contact person from the Region will work
with a designated contact person within the Planning Branch of OECA. Where agreement is
reached, no further action is required. ,
\
Those issues which cannot be resolved or require management decisions will be elevated to
Branch Chiefs, Division Directors and Office Directors as needed. Most of the negotiation on
program priorities and trade-offs will occur at this level. These negotiations should be done
quickly, efficiently, and in a collegia! manner. Our intent is to complete these discussions
wherever possible prior to formal submittal.
Upon submission of the MOA proposals, communication on remaining unresolved MOA
policy issues and negotiation of final commitments will be held only between the OECA
Office Directors and Regional Division Directors, or a higher level if necessary, for those
significant issues where agreement cannot be reached. The Assistant Administrator/Deputy
Assistant Administrator in Headquarters will conduct conference calls with each Regional
Administrator/Deputy Regional Administrator in the Region for the purpose o( resolving
issues and finalizing the Agreement for each Region.
o The negotiation process must be completed no later than January 13, 1995. Final signed
MOAs will be transmitted immediately to die Regions. .
B. REGIONAL DEVELOPMENT OF AN MOA PROPOSAL
I. Outli of Regional/Headquarters MOA
a. Transmittal and Highlights Memorandum (no more than 2 pages)
b. Regional Program (explained in more detail under' Part II. of this section)
i. Description of OECA Objectives
In general, the Regional response to each OECA Objective should be
described as follows:
Brief narrative describing, strategically, what the region is doing to
meet the objective.
Where the Region is conducting a specific activity towards an
objective, the following information should be provided.
Activity Description:
HQ Support:
Regional Commitments & Activities:
12
-------
ii. Regional Specific Issues - Optional
iii. Resource Utilization Summary (Including investments/
disinvestments)
c. Attachments
Enforcement and Compliance Assurance components of the annual
planning documents (i.e., MOA, RIP) developed through Media
Specific Guidances
Optional Supporting Regional Attachments
II. Detailed Discussion of Regional Program (item b. from above outline)
The main objective within this section is to describe how compliance and enforcement
activities will be directed to meet the OEGA's strategic objectives for Enforcement and Compliance
Assurance in as brief and concise a manner as possible, and to identify milestones and products to
capture and monitor progress.
Regions should submit narrative descriptions for their planned activities unless specifically
requested otherwise. Regions will be expected to identify the resources (FTEs and grant dollars) and
measurable outputs allocated to each activity and program objective. The format below is designed to
' assist Regions in organizing this section of the report.
i. Description of OECA Objectives
This section should provide a brief narrative describing how the Region intends to meet the
OECA objective. In addition, where appropriate, the Region should provide a more detailed
description of work components (activities) that will be conducted to meet the objective. Each
activity under each objective should be describe as follows:
Activity Description:
[Specific activity or related groups of activities under each objective]
HQ Support:
[As applicable, discuss needed guidance or other Headquarters actions that potentially may
impact the achievement of the stated activity]
Regional Commitments & Activities:
[Specifically define the outputs or commitments that the Region agrees to meet and include
appropriate timetables associated with the outputs. Where a Region is seeking flexibility to
undertake a specific activity, the Region should discuss the rationale, the impact and identify
the measurable results produced by this action.]
For Objective 1, each media priority Oisted in Appendix 1) should be considered a work component.
Where the Region feels that additional information beyond the media priorities is needed to adequately
13
-------
cover their program, Regions should feel free to add details to provide a more complete discussion.
[An example write-up for an activity under Objective Ml is provided in Figure 1].
The Region should also discuss its overall approach to meeting the objective using appropriate tools to
achieve maximum compliance, highlighting in particular the use of compliance assistance in your *
Region's enforcement and compliance assurance program. At the end of this section, the Region
should provide a specific list of compliance assistance activities they are undertaking in FY 95.
For Objective 2, Regions should include all proposed commitments for targeted measures (as
described in section III.) under the former STARS; For reporting purposes, please attach summary
charts or reference pages in attached enforcement and compliance assurance sections of the media
specific annual planning documents (i.e., MOA, REP).
For Objective 3, Regions should provide a brief narrative discussion of their targeting
methodologies. Regions should specifically discuss which of these innovative approaches they utilize
and should provide detail for the strategies identified. For each identified strategy, a more detailed
description of work components (activities) that will be conducted to meet the objective should be
included. [An example write-up for Objective #3 is provided in Figure 2.]
For Objective 4, Regions should provide a brief narrative discussion of their efforts to move toward
measuring results and impacts. The Region should describe its commitment to develop their own
measures projects; to support development of improved or new measures of success; to participate in
efforts to collect information needed for new measures; and to participate in pilot projects to actually
implement new measures. A more detailed description of activities that will be conducted to meet
the objective should be included when appropriate.
ii. Regional Specific Issues - Optional
This section, which is optional, allows the Regions an opportunity to present management
issues to Headquarters. It should include impediments that affect the ability of the Region to operate
effectively in accomplishing its goals.
Hi. Resource Utilization Summary - FTE and State Grant (Including
investments/disinvestments)
We are requesting that the Regions provide summary information on utilization of
enforcement and compliance assurance FTE and state grant funds.
For FTE, we need to know how many FTE, both federal and Senior Environmental
Employees (SEEs), are allocated to four broad functional areas (compliance assistance/promotion,
compliance monitoring, enforcement action, and program management) for each of the single-media
and multi-media programs of the Region. We would like each Region to submit an FTE Utilization
summary for each program area. Please designate separately the SEE and federal FTE. An
explanation and example of the FTE Utilization Summary appears in Table I.
For each "Change in Level" indicated on the FTE Utilization Summary, we would like you to
provide a summary explanation for the investment/disinvestment. An example of this explanation of
investments/disinvestment is provided in Figure 3.
14
-------
For state grant funds, we are requesting a breakout or' grant funds by function, and the chart
to be completed for each State is provided in Table II. We understand that FY 95 programs are
already negotiated, and thus we are trying to capture a "snapshot" of grant fund allocation rather than
shift funds at this late date. For each state, we are asking that you use your best professional
judgment to allocate the enforcement portion of those state grants across four functional areas and also
indicate the amount of the total grant (i.e., enforcement and non-enforcement).
C. REPORTING REQUIREMENTS
Regions are to submit concise reports at mid-year and end-of-year to reflect progress made
and issues unresolved. Where an OECA Regional evaluation coincides with the timing of a mid-year
or end-of-year report, Headquarters will discuss with the Region the need for any additional
information beyond the Regional evaluation report. ,
A. Mid-Year Report
o The report should highlight their progress in shifting resources between
investment/disinvestment areas.
o The report should discuss where media-specific priority commitment levels, initiatives, and
MOA goals/objectives are either being significantly exceeded, or Region is experiencing great
difficulty in meeting them. ^
x_
-Reasons for success/impediments should be clearly defined.
o This information should be provided in a narrative form, with separate headings for each
commitment, initiative, or goal being addressed.
o Impediments, success stories, and investment/disinvestment updates should be provided in
separate sections.
o Mid-year reports (not to exceed 15 pages) should be submitted to the Planning Branch,
EPTDD, OC by May 1, 1995.
B. End-of-Year Report
o Detailed reporting guidance will be provided in the near future identifying time frames,
format and required elements.
15
-------
Example Description of OECA Objective 11 Write-up
(Taken from Toxics Priorities) .
Activity:
EPCRA Section 313 non-reporters and data quality
HQ Support:
No additional support is required from HQ.
Regional Commitments & Activities:
Currently, the Region estimates that it will have conducted 34 - 38 inspections in
FY 94, 4 of which were data quality (DQ) in conjunction with interdivisional
multimedia inspections. This is an increase of 4 - 8 in the fourth quarter
inspections made possible by the completion of training of our second TRI
inspector. The data quality inspections have resulted in a high violation rate for
that category. A pilot study with a new TRI data quality analysis technique
targeting xylene releases was begun with state. This methodology has uncovered
several major violations without the necessity of an initial on-site visit. - Region _
conducts training to industry on the last Wednesday on each month and twice in _
June (13 total). An additional 14 training sessions were conducted in Region's
states. In an effort to increase outreach to citizens, we expect to conduct a Train-
the-Trainers workshop for Librarians on the availability and use of TRI data.
f
Due to the continued complexity of the Form, Region _ plans to maintain the
current industry outreach effort and promote decentralization of the TRI outreach
program to the States. We plan to expand Form R workshops to include Federal
. Facilities. We also plan to increase the inspections in FY 94 up to 50 inspections.
We anticipate conducting 5 DQ inspections with an increase in DQ activities by
application of our new DQ Analysis Method to the rest of Region 6 and other
volatile organic compounds.
For FY 95 the Region will conduct monthly training to industry at the
Regional office, 14 training sessions in the Region's States, and 50 inspections
(5 of which will be DQ) evenly divided by quarter. Activities will be reported
through STARS and EPCRA newsletters.
Figure 1 - Example Description of OECA Objective #1 Write-up
16
-------
Example Description of OECA Objective #3 Write-up ~"
(For Innovative Targeting Straiegies)
Narrative Description:
The Region has begun to integrate several innovative targeting approaches into its
enforcement and compliance assurance programs. First, all media programs in the
Region will target 20% of its inspections using the IDEA System. The Region will
target those facilities that have had significant noncompliance in any media and appear
listed in more than one media database. The Region will concentrate this multi-media
inspection activity within the sensitive ecosystem identified in our comparative risk
project conducted with the state of .
Additionally, the Region established an environmental justice targeting task force. The
task force has identified, by zipcode, sensitive populations in all the states of the
Region. This information has been made available, to all the states and the media
compliance programs. For FY 95, the Region will-begin to identify the predominant
industrial sectors that operate within the environmental justice areas. It is anticipated
that 10% of all inspection activities will be focused in those areas identified as having
environmental justice concerns.
%
Activity:
'" ""** ~u_
Multi-media Inspection Targeting
HQ Support:
The Region will rely primarily on the IDEA System for its Multi-media Targeting.
Headquarters must continue to update the system with the most accurate data.
Headquarters will need to conduct one training course for Regional staff and provide
- assistance as needed.
Regional Commitments & Activities:
The Region will utilize the IDEA system to develop target lists for all its programs.
The criteria that the Region will use is to target those facilities that are subject to more than
one environmental statute and have been in significant non-compliance in the last five years.
Although, a full blown multi-media inspection will not be conducted at each facility, the
facilities will be chosen using multi-media data. These inspections will be concentrated in the _
geographic area, as this was identified by the Region and.xyz state as a sensitive
ecosystem.
For FY 95, the Region will target 20 % of all its program inspections through the
application of the IDEA system. In addition, these inspections will be targeted in
the . geographic area. The Region will measure success of this targeting
method by an increase in compliance rates within this area. ^^
Figure 2 - Example of Description of OECA Objective # 3 Write-up
17
-------
~ Example Description of OECA Objective #3 Write-up corn.
(For Innovative Targeting Strategies)
Activity:
Environmental Justice Inspection Targeting
HQ Support:
[identify needed support for Environmental Justice targeting here]
Regional Commitments and Activities:
[identify Regional activities and commitments to implement this activity; be as
specific as possible; discuss flexibility here if appropriate]
Figure 2 - Example of Description of OECA Objective # 3 Write-up com.
18
-------
Table I - FTE Utilization Summary
FTE UTILIZATION SUMMARY
Each Regional plan should identify the resources dedicated to the
principal enforcement functions that meet the OECA's strategic
enforcement objectives. The following format should be used for each
single-media and multi-media program:
(Air) Program
FTE Utilization Summary
Functions
At a minimum the Region is expected to
address these areas and add outre if needed to
more fully explain their program.
Compliance Assistance/
Promotion
(e.g.. Outreach Activities' .
Voluntary Compliance')
Compliance Monitoring
(e.g. , Inspections. Monitoring, and Sampling1)
- Enforcement' Actions
ft.g. . 'Case Development and Management)
Program Management
(e.g.. Program Administration and Support.
State Program Outreach and Oversight,
Use/Maintain Enforcement Data Systems)
Resource Level
FY 94 FY 95
Please indicate the
FY 94 resource
level (FTE). both
federal and Senior
Environmental
Employee (SEE).
devoted to the
identified Junction
For Example:
20FTE
5 SEE
»
Please indicate the
expected FY 95
resource level
(FTE). both
federal and SEEs.
devoted to the
identified Junction
1SF1E
SSEE
Change
in
Level
Please indicate
amount of
disinvestment/in-
vestment of
resources. Please
attach a detailed
description of
trade-offs.
(5 FTE)
0
Llarilicaiion of Activities Under Each Function
1. Outrtach Activities - Congress. State and local. Federal Agency, Public. Media. Regulated Community
2. Voluntary Compliant* Outreach/Education directed toward voluntary compliance: technical assistance to industry.
pollution prevention; non-regulatory compliance incentives
3. Inspections, Monitoring, and Sampling - Inspection planning and coordination; Compliance inspections including
state oversight; Monitoring, sampling and emissions testing; Lab support; Compliance monitoring and tracking
1. Case Development and management (Administrative and Judicial) Technical and legal case development; Case
screening, precedent-setting cases; Enforcement Response selection; Criminal case development; Referral and filing;
Litigation, discovery, motions practice; pre- or post-filing negotiations; Settlement ftnaliiation; Consent agreement/decree
tracking; Case closure; PRP searches;
5. Suue Program Outrtach and Oversight - State program delegation reviews; State program oversight; Grants
administration; State program communication, joint planning and implementation activities.
19
-------
Explanation of Disinvestments/Investments (as noted in Chart)
ACTIVITY:
OBJECTIVE:
COMMITMENT:
MEASURES:
[Briefly describe the specific activity or related groups of activities
invested or disinvested in as reflected on the Resource Utilization
Summary Table] Ex. The Region is shifting 5 FTEfrom the Air
Inspection program to perform water inspections and case support
within the Region's Water Enforcement Unit.
[Briefly describe the OECA objectives related to this activity.]
Ex. The Region is using a targeted approach for inspections to
support high priority geographic initiatives.
[Specifically define the outputs or commitments that the Region
agrees to meet and include appropriate timetables associated with
the outputs. In addition, describe the impact of the related -
disinvestment.] Ex. The Region will perform 30 water inspections
and will develop at least three significant water enforcement
actions. This will result in a decrease in the air inspection outputs.
We will reduce our air inspection commitments by 45 inspections.
(Progress will be reported through traditional measures as well as
new measure currently under development. All "trade-off1
activities must have measures that measure the effectiveness of the
activity. For those activities not monitored through established
reporting systems, progress will be reported in Mid-year and/or
End-of Year'Reports] Ex. The traditional measures of inspections
and enforcement actions will be used to assess progress. Also,
inspection data will direct enforcement action(s) where appropriate
to protect high risk areas and sensitive ecosystems from further
degradation. The data from the inspection will also contribute to
our data integration and retrieval capabilities and allow expanded
use of the data.
Figure 3 - Explanation of Disinvestments/Investments
20
-------
Table II - Slate Grant Churl
STATE GRANT CHART
The following churl will allocate Federal grant dollars across I he common enrorcemenl functions. Do nol add in Stale
match. Also, most of these grants are not 100% enforcement; therefore, please indicate how much per state is directed to
enforcement out of the entire state grant, and then allocate that amount across functions. We anticipate that, depending upon
the detail of slate work programs, Regions will need to use their hesl professional judgement to crosswalk slate work
programs with this chart. We also understand that FY 95 work programs are already negotiated, so this chart will be a
reporting mechanism, it is not intended to change/shift funding.
STATE:
ENFORCEMENT RELATED STATE GRANTS
FUNCTION
106
UIC
PWSS RCRA
AIR
PEST. TOXICS OTHER
Compliance Assistance/
Promotion
Compliance Monitoring
Enforcement Actions
Program Management
,.
'
«
ENFOR GRANT/
TOTAL GRANT* * indicate dollars in thousands please
21
-------
APPENDIX 1
FY 95 MEDIA SPECIFIC PRIORITIES/INlf lATIVES
The following section, drawn from media-specific guidances, identifies priorities and
initiatives. In many instances, a brief description of the priority is provided. Regions should refer to
the specific guidance document referenced to obtain more detailed information, and to ensure that
other aspects of media-specific guidance is being followed. In FY 96, enforcement and compliance
assurance guidance for all media will be covered in the OECA MOA guidance.
When developing the Regional MOA, Regions should consider the appropriate balance
between base program activities and media priorities and initiatives, and discuss the rationale behind
their choices. While we expect Regions to participate in these national initiatives, we also recognize
that not all Regions will participate in all initiatives (for example, only certain Regions have a vested
interest in the Mississippi River Initiative).
A. Water (also refer to Office of Water FY 94 Operating Guidance, dated March 1993)
Priorities
Regions and states should target compliance and enforcement efforts to support the priority
watershed approach, particularly those streams posted as unfit for fishing and swimming.
\
Regions and States should pursue alternative approaches, using a mix of compliance, assistance and
enforcement, when dealing with nontraditional enforcement problems, such as stormwat«v-sludj>e,
feedlots, combined sewer overflow (including dryweather flows) and small system compliance.
Regions and states should target inspections, focus on accurate and complete reporting, and take
enforcement actions against nonreporters and facilities reporting fraudulent or incorrect data.
Regions and states should continue to identify noncompliance among pretreatment publicly owned
treatment works (POTWs) and industrial users contributing toxic pollutants into public sewers.
Regions and states should aggressively implement and enforce the Surface Water Treatment Rule to
ensure that unfUtered systems are on an enforceable schedule to install filtration, and to ensure that
filtered systems meet requirements. '
Regions should work with states to undertake increased underground injection control (UTC)
enforcement efforts, particularly for shallow wells, including expediting remedial actions and
obtaining higher penalties.
Regions and states should implement and enforce the Lead and Copper Rule, with particular
attention to issuing administrative orders (AOs) to large systems which are not implementing their
corrosion control plans, and any systems where monitoring indicates noncompliance.
Initiative
Development of Wetlands Enforcement Management System
Development of this system would involve incorporation of a penalty policy, a model litigation
referral package, and a method for prioritizing noncompliance and determining the appropriate
enforcement response for wetlands violations.
-------
>5 MEDIA SPECIFIC PRIORITIES INITIATIVES APPENDIX I
B. Federal Facilities (refer to OFFE's 1992 10-Point Strategic Plan)
Priorities - also refer to other media specific priorities/initiatives
Enforcement Cases: Continued emphasis on enforcement casework and regulatory programs, *
especially RCRA and its Federal Facility Compliance Act Amendments.
Enforcement Policy: Continued work on major policy efforts, including the Federal Facility Policy
Group, the Federal Facilities Steering Committee, and Clean Water Act. Policy or statutory
changes resulting from these efforts may require shifts in activities during the fiscal year.
Multi-media Enforcement: Continued emphasis on multi-media inspections. During FY 95, results
of the FY 93-94 multi-media initiative will be assessed and efforts made to institutionalize a
continued federal facility component in multi-media enforcement activities.
Environmental Stewardship: Continued efforts to assist federal agencies in complying with
environmental requirements and becoming environmental justice leaders. For example, FY '95
will see implementation of the Civilian Federal Agency Compliance Program Improvement
Strategy, and continued implementation of Executive Order 128S6 including the Green Government
Environmental Challenge Initiative, continued innovative technology programs, and the Federal
Facilities Roundtable.
Environmental Tracking, Monitoring, and Analysis. Continued implementation of the Federal
Facilities Hazardous Waste Compliance Docket, progress in improving the A*106 budget process,
and major implementation of the Federal Facilities Tracking System (FFTS). ""-
-------
APPENDIX I FY 95 MEDIA SPECIFIC PRIORITIES IMT1 \H\ ES
C. Air (refer to FY '95 Office of Air and Radiation Program-Specific Guidance, dated
August 9, 1994, especially pgs. 67-79)
Priorities
Significant Violators (SV)/Timely and Appropriate (T&A) Implementation:
-implement guidance that defines timely and appropriate enforcement responses for significant
violators.
-assist states in identifying, resolving, and prioritizing significant violations, using all available
enforcement tools.
Federal Enforcement Activity:
-prepare and track civil referrals and administrative cases.
Compliance Monitoring Strategy:
-ensure states identify in Air Facility Subsystem (AFS) sources targeted for inspection.
-assist states in developing and implementing state inspection plans consistent with the
strategy.
i
Data Integrity:
-v. ._^
-ensure states input into AFS and NARS inspection, compliance and enforcement information;Track
regional and state information.
Pollution Prevention:
-take enforcement actions, provide compliance assistance and training to enhance pollution
prevention activities, inclusion of pollution prevention/innovative technology into injunctive relief
and SEPs as appropriate.
Federal Programs:
Acid Rain Implementation
-review opt-in applications and issue permits
-assist states in developing their permit programs, ensure that acid rain requirements are
incorporated in states' Title V permits.
-enforce acid rain permits and continuous emissions monitoring (CEM) certification requirements
Stratospheric Ozone Protection
Enforce servicing of motor vehicle air conditioners and the service, repair or disposal of class I
substances used in appliances and industrial process refrigeration
-enforce ban on sale of nonessential products containing chlorofluorocarbons
-enforce restrictions on the importations of certain ozone depleting chemicals
New Rules. Guidance and Review - Assist in the development and implementation of Agency
policy on Enhanced Monitoring, Field Citations, Monetary Awards, Citizen Suits, accidental
releases under the general duty clause, and enforcement of State Implementation Plans (SIP) and
MACT Standards:
-------
F\ V5 MEDIA -SPECIFIC PRIORITIES INITIATIVES APPENDIX 1
C. Air (refer to FY '95 Office of Air and Radiation Program-Specific Guidance, dated
August 9, 1994, especially pps. 67-79), continued
Enforcement of MACT
\
begin to enforce the dry cleaning MACT, the Coke Oven MACT. and the Hazardous Organic
NESHAPS MACT.
Operating Permit Approval
' - dV-
-review state and district operating permit program submittals to determine each program's
compliance with requirements under Part 70
Compliance Planning and Oversight Guidance/Enforcement Response Plan (ERP) - ensure states
develop ERP'S consistent with guidance.
Rule Effectiveness:
-submit commitments for studies, study protocols and final reports to Headquarters.
-submit post-study audits within one year of completion.
Lead Enforcement:
-as part of the Lead National Ambient Air Quality Standards (NAAQS) Attainment Strategy of
August 1990, EPA has determined to enforce current emission limitations for all strategy sources..
Initiatives
National case development of particle board and plywood industries.
(carryover from FY 94)
Industrial/Commercial Boilers Enforcement Initiative
To address serious compliance/enforcement problems with the New Source Performance Standards
(NSPS) for boilers constructed after June 19, 1984, that have a heat input greater than 29MW
(lOOmmBru/hr), and boilers constructed after June 9, 1989, that have a heat input between 2.9MW
and29MW.
-------
APPENDIX I FY 95 MEDIA SPECIFIC PRIORITIES IMTUTI\ tS
D. Toxics (refer to draft FY '95 MOA Guidance for Pesticides and Toxics, dated July
2S, 1994)
Priorities
o Cooperative Agreements - emphasis on quality implementation, oversight, and evaluation for
toxics.
o Emergency Planning and Community Right to Know Act (EPCRA) section 313 national priorities
are data concerns and non-reporters. Other EPCRA non-313 violations should be pursued where
appropriate.
o The national Core Toxics Substances Control Act (TSCA) priorities focus on pollution prevention
and risk reduction and are as follows:
-parties to S(e) risk-based orders
-companies which did not participate in the TSCA 8(e) compliance audit program (CAP)
-non-submitters of Pre-manufacture Notices
-parties subject to Significant New Use Rules
o Asbestos abatement and/or asbestos worker protection - highest priority for asbestos inspections.
o Polychlorinated Biphenyls (PCBs): high-risk, low compliance PCBs are of primary concern.
Existing PCB compliance monitoring enforcement resources should be directed toward - - -_.
implementation of PCB 2000 strategy.
o PCB compliance monitoring priorities include:
- inspections at disposal and commercial storage facilities.
- participation in the PCB phaseout.
Initiatives ,
o TSCA section 5(e) worker exposure initiative.
o TSCA section 8(e) CAP Non-participant enforcement initiative.
o Imports/Exports Transboundary initiative - reduction of environmental and health risks created by
transboundary shipments of chemicals in violation of TSCA, FIFRA,- and international treaties.
-------
F\ 95 MEDIA SPECIFIC PRIORITIES IMTIAT1NES APPENDIX I
E. Pesticides (refer to draft FY '95 MOA Guidance for Pesticides and Toxics, dated July
28, 1994)
Priorities ' . ^
Cooperative Agreements - emphasis on quality implementation, oversight, and evaluation for
pesticides.
Worker Protection - Regions should continue to emphasize inspector training, compliance
assistance and outreach, and enforcement of worker protection standard label requirements and
generic worker protection requirements.
Special Action Chemicals Regions should continue to provide necessary field support to follow up
on specific cancellation/suspension orders which significantly change a product's labeling or use
pattern.
Pesticide Infrastructure improvement of program implementation and effectiveness through
enhancement of data systems, inspector training, and case development training.
SEP's - incorporation of supplemental environmental projects in settlement of pesticide enforcement
cases.
Initiatives
" -.
Worker Protection Compliance Initiative - phase 1 focuses on enforcement of worker protection
standard labeling requirements. Phase 2 focuses on use of worker protection products, both
compliance assistance efforts and enforcement actions during the latter portion of FY '95 and the
beginning of FY '96.
Imports/Exports Transboundary Initiative - reduction of environmental and health risks created by
transboundary shipments of chemicals in violation of FIFRA, TSCA and international treaties.
-------
APPENDIX I FV 95.MEDIA SPECIFIC PRIORITIES 1MTIATI\ ES
F. RCRA (refer to FY 94 and FY 95 RCRA Implementation Plans, dated April 2, 1993
and May 19, 1994, respectively)
Priorities
o Combustion - BIFs and Incinerators
o Waste Minimization Activities:
-inclusion of waste minimization activities as supplemental environmental projects (SEPs) in case
settlements, with a focus on environmental justice, where applicable.
o Statutory Compliance Priority Inspections:
-federal Transport, Storage and Disposal Facilities (TSDFs)
-Land Disposal Facilities (LDFs) not inspected in FY 94
-commercial TSDFs
o Other Priority Inspections:
-CME or O&M at all new or newly regulated LDFs
-combustion facilities that were classified an high priority violator (HPV) in FY 94
-combustion facilities that never received an in-depth inspection in FY 94.
o Federal Facilities Compliance Act - Federal Mandates
o Ground water Monitoring Inspections -
o Non-notifiers identified through tips, complaints, or investigations.
o Address facilities that have remained in significant non-compliance for extended periods of time.
o Land disposal facilities
Initiatives:
o RCRA's industry-specific initiative, based on recommendations of the RCRA enforcement targeting
committee.
o RCRA's initiative to support the Administrator's waste minimization strategy.
-------
FV 95 MEDIA SPECIFIC PRIORITIES/INITIATIVES APPENDIX I
G. Remediation (Superfund, RCRA Correctire Action, OU Pollution Act (OPA) &
Underground Storage Tanks (UST)/Leaking Underground Storage Tanks (LUST)
Priorities A
Cost Recovery Sites Addressed - In order to assure that Superfund dollars are returned to the trust
fund, Regions must target all Statute of Limitations (SOL) cases expiring on or before 3/30/96 with
costs greater than or equal to $200,000. Flexibility is available for SOL cases between 11/15/95
and 3/21/96 if non-settler or high dollar cases can be brought instead.
De Minimis/De Micromis - To reduce third party litigation and reduce private'party transition
costs, early settlements with small volume contributors will continue to be a high priority.
Enforcement First - In order to maximize the number of cleanups and reduce the number of cases
requiring costly litigation, Regions are strongly encouraged to maximize Principal responsible party
(PRP) participation upfront in both the removal and remedial programs (70% remedial, 30-35
removal). This will be a measure in FY 95. The key areas of emphasis are early initiation of PRP
searches and negotiations with PRPs to maximize PRP conducted response actions.
Cleanup Pace - In order to assure that the cleanups are conducted timely, negotiation completions
will be targeted in FY 95.
RCRA Corrective Action (refer to RCRA Implementation Plans cited in previous sections).
Collect penalties for unauthorized discharges of oil or certain hazardous substances in violation of
Section 311 (b) of the Oil Pollution Act.
Remediate sites where there is an actual or threatened release of oil or a hazardous substance that
may be an imminent and substantial threat to the public health or welfare.
Remediate sites with leaking underground storage tanks (state lead).
Negotiate federal facility LAGs pursuant to Comprehensive Environmental Response Compensation
and Liability Act (CERCLA) Section 120.
Initiatives
Superfund Reforms: .
- each site will be considered for ADR efficiencies
- state and federal mixed funding will continue to be piloted
RCRA Corrective Action's Stabilization Initiative which involves focusing resources on interim
actions to achieve near term environmental results at facilities with the most serious problems.
Environmental Justice and Community Involvement - Citizens living near Superfund sites must
receive equal protection under CERCLA. Accordingly, communities must be guaranteed early and
effective ways to participate in the Superfund cleanup process.
-------
APPENDIX 1 FY95 MEDIA SPECIFIC PRIORITIES INITIATIVES
H. Multi-media
Priorities r
Integrate and strengthen a cross-program/multi-media perspective and capacity into all stages of the
compliance assurance and enforcement planning and decision-making process, including targeting,
inspections, case-screening and development, and civil and administrative enforcement actions.
Expand use of multi-media enforcement to address violations in more than one program at single
companies with multiple facilities. This includes where facilities are located within a single
Region, or working in cooperation with other Regions and headquarters, where the facilities are
located in different Regions.
Expand use of multi-media enforcement approaches to address ecosystem or geographical problems
and environmental justice concerns (e.g., multiple and cumulative exposures in minority population
and low-income populations).
Conduct a minimum of 2 multi-media inspections at federal facility establishments, per the Federal
Facilities Multi-Media.Enforcement/Compliance initiative.
Initiatives
, *
National multi-media enforcement case initiative against large companies, such as Fortune 500
companies. .
New Multi-media Initiatives
Common Sense Initiative
The Common Sense Initiative represents the Administrator's desire to do business differently, by
regulating on a sector basis instead of on a statute-specific basis. The anticipated result is that all
EPA regulations affecting a particular sector will be consistent (i.e., no redundant or conflicting
requirements) and pollution prevention opportunities may be surfaced.
Mississippi River Initiative
In FY 1995 and in subsequent years, OECA intends to enlist the Regions in addressing
noncompliance exhibited by facilities along or near the Mississippi River, and its tributaries,
including the Missouri and Ohio rivers.' A number of Assistant U.S. Attorneys in that area have
.recently expressed their interest in addressing such noncompliance, and the Agency will seek to
work with them and with various other agencies and departments to coordinate enforcement efforts.
Through improved coordination and targeting, this effort should yield a large number of
enforcement actions filed or issued in the area by the end of FY 1995, with compliance assurance
efforts also increasing. In FY 1995, the Agency also hopes to participate in the development of an
interagency agreement to improve coordination and communication regarding related enforcement
and compliance efforts.
-------
V»5 MEDIA SPECIFIC PRIORITIES INITIATIVES APPENDIX I
H. Multi-media, continued
Compliance Assistance Center Initiative
OECA is pursuing funding through the Environmental Technology Initiative for the purpose of
establishing National Compliance Assistance Centers to provide "one-stop shopping" for several
industries characterized by small businesses facing substantial multi-media regulatory requirements
(potential industries indue: dry cleaning, printing, metal finishing, etc.)- These Centers would
provide comprehensive assistance to its small business community. The Centers would develop
consolidated, multi-me.iit ucerials on compliance requirements, pollution prevention, etc. while
also developing workshops seminars and self-auditing methodologies.
I. Criminal
Continue implementation and emphasis on environmental justice activities and issuing cases in
environmental justice communities.
* '
Continue implementation of the Investigative Discretion Guidance issued in FY '94.
Multimedia criminal enforcement activities.
10
------- |