United States Office of
Environmental Protection Water Enforcement EN-338
Agency Washington, DC 20460
NPDES Compliance
Monitoring Inspector
Training
Legal Issues
-------
NPDES COMPLIANCE MONITORING
INSPECTOR TRAINING MODULE
LEGAL ISSUES
U.S. ENVIRONMENTAL PROTECTION AGENCY
ENFORCEMENT DIVISION
OFFICE OF WATER ENFORCEMENT AND PERMITS
COMPLIANCE BRANCH
JUNE 1980
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING
DISCLAIMER
This module has been reviewed by the Office of Water
Enforcement and Permits, U.S. Environmental Protection Agency, and
approved for publication. Mention of trade names or commercial
products does not constitute endorsement or recommendation for use.
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING
ACKNOWLEDGEMENT
These modules were developed by Barbara A. Schick,
Claire M. Gesalman/ Duane Geuder, Edward Bender/ and with contri-
butions by Dave Shedroff, all of whom are staff members of the
Enforcement Division, Office of Water Enforcement and Permits. The
Compliance Branch, Enforcement Division, Office of Water Enforcement
and Permits, wish to express their appreciation to the secretarial
staff for the assistance provided in the preparation of this module,
especially Mrs. Mary F. Rogers and Mrs. Wilma Haney.
II
-------
U.S. ENVIRONMENTAL PROTECTiON AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING
LIST OF APPENDICES
A. MARSHALL V. BARLOW'S DECISION
B. SECTIONS OF THE CLEAN WATER ACT RELEVANT
TO NPDES INSPECTORS
C. NEUTRAL INSPECTION PLAN
D. SAMPLE 308 LETTER
E. CREDENTIALS
F. SAMPLE WARRANT
III
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE n/lONITORING INSPECTOR TRAINING
FOREWORD
The National Pollutant Discharge Elimination System (NPDES)
Compliance Monitoring Inspector Training Modules were developed
by the Environmental Protection Agency (EPA), Office of Water
Enforcement and Permits (OWEP), to instruct NPDES inspectors in
various aspects of conducting NPDES Compliance Monitoring
Inspections.
The EPA Regions have identified a need for training materials.
to instruct new employees in conducting NPDES inspections. Train-
ing seminars that are currently offered either do not address the
training needs of an NPDES inspector or are not available due to
limited resources or conflicting course schedules. These training
modules were developed to fill the Regions' need for in-house
inspector training.
The objectives of the training modules are:
1. To acquaint new inspectors with the NPDES Compliance
Inspection program;
2. To serve as a refresher course for experienced NPDES
Inspectors;
3. To as'sure consistency in the NPDES Compliance Inspection
program; and
4. To inform and instruct inspectors concerning new inspection
procedures.
The modules were designed to be used as a self-taught course
or as the basis for a lecture course to supplement on-the-job
training. The modules should be presented by experienced and
knowledgeable Regional staff who can answer any questions, discuss
Regional policies regarding the topic being presented, and conduct
on-the-job training.
The =module format was chosen for this training program because
of its flexibility. Each module covers a specific aspect of a com-
pliance inspection. Instructors for a particular module may be
selected according to their expertise, and training sessions could
be scheduled based on the needs, the resources, and the time avail-
able to the Region. The modules can be presented individually or
as a complete package.
An outline of information contained in the individual training
modules is listed below. There are currently five NPDES Compliance
Monitoring Inspector Training modules:
1. The Overview module gives the inspector an overview
of the compliance program and a brief summary o£ the
different types of compliance inspections.
IV
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING
FOREWORD (Continued)
2. The Legal Issues module outlines the legal issues which
must be addressed during an inspection and legal
information that will assist inspectors in performing
their duties.
3. The Biomonitoring module outlines the principles of bio-
monitoring and the role of biological testing in the
inspection program.
4. The Sampling module details the sampling procedures that
an inspector uses when conducting a sampling inspection.
5. The Laboratory Procedures module outlines the procedures
and information necessary for an inspector to perform an
effective evaluation of a permittee laboratory.
The layout of the text of each module is on a half page so that
students may include their notes with the text.
These training modules were developed for the Regions and are
designed to be used by the Regions for in-house training. If these
modules are to be a success, the Regions must participate in their
ongoing development. This can be accomplished by providing EPA
Headquarters with changes or information which Regional instructors
or managers believe would improve the modules. The format of the
modules can be updated and revised at OWEP as the need arises as
they were developed and produced at EPA Headquarters. Cooperation
and commitment to training by the Regions will promote the
development of a useful training document.
These training modules were developed primarily for Regional
NPDES Inspectors; but they are also available to other interested
parties such as State offices, attorneys, other program offices,
facility owners and operators, and members of the general public.
Comments, information, and suggestions to improve the modules
should be addressed to the:
Technical Evaluation and Support Section (EN-338)
Office of Water Enforcement and Permits
U.S. Environmental Protection Agency
401 M Street, SW
Washington, D.C. 20460
Modules covering new topics may be added to the existing ones as
the need arises. Subject suggestions for future modules should
be sent to the above address.
Requests for training modules will be handled at the above
address depending on available supplies.
V
-------
U.S. ENVIRONMENTAL PROTECT3ON AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING
TABLE OF CONTENTS
DISCLAIMER P. I
ACKNOWLEDGEMENT P. II
LIST OF APPENDICES P. Ill
FOREWORD P. IV
TABLE OF CONTENTS P. VI
I. INTRODUCTION P. 1
II. BACKGROUND P. 1
III. AUTHORITY P. 4
IV. PERSON SUBJECT P. 7
V. PREINSPECTION LEGALITIES P. 7
A. Neutral Inspection Plan P. 8
B. 308 Letter P. 9
C. Confidentiality P. 10
D. Compliance File P. 16
E. Permittee Rights P. 16
VI. INSPECTION OBJECTIVES P. 16
VII. INSPECTION LEGALITIES P. 18
VIII. WARRANTS P. 21
A. Administrative Warrant P. 22
B. Obtaining the Warrant P. 23
C. Criminal Search Warrant P. 25
IX. GATHERING AND PRESERVING EVIDENCE P. 27
X. BASIS FOR TESTIMONY P. 28
XI. PRESENTING EVIDENCE FROM INSPECTIONS P. 28
A. Admissibility of Evidence P. 29
B. Serving as a Witness P. 30
XI. LIABILITIES P. 32
XII. SUMMARY p- 32
APPENDICES
VI
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
I. INTRODUCTION
Scope of Module
Outline of Module
II. BACKGROUND
Purpose
I.
INTRODUCTION
This training module covers the
legal aspects of pollution control as
they apply to compliance monitoring
under the Environmental Protection
Agency's (EPA) National Pollutant
Discharge Elimination System (NPDES)
Program. Included in the course is a
discussion of how the law is relevant
to the NPDES Program and how it should
be taken into account during inspec-
tions and hearings or trials arising
from inspections. Many of the legal
principles presented here can be useful
in your work outside the NPDES.
The module begins generally with
a review of the various types of law
and an overview of their relationship
to NPDES. The legal roles of the
Administrator, the permittee, and their
agents are described. The module will
emphasize how the law affects the
inspector1s duties to gain access to
identify, gather, preserve, and present
evidence.
II. BACKGROUND
The purpose for learning the legal
aspects of NPDES or other EPA programs
may not be readily apparent. Many of us
know our jobs and have learned through
experience how to conduct ourselves.
However, an understanding of the law can
make you more comfortable. Court pro-
ceedings do not have to be mysterious
rituals. Your understanding of the law
can also put others at ease. All of us
can probably recall some instance when a
calm statement of explanation defused a
potentially explosive dispute. Such
occurrences are quite possible in an
inspection situation.
An understanding of the legal basis
for inspection activities may also help
you to decide what to do under unusual
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issu
NOTES
LESSON
Applicability of
Information
Legal Authority
Types of Legal
Authority
Origin of Authority
and unforeseen circumstances. Finally,
an understanding of the law allows you
to see some of the underlying reasons
for procedures that might otherwise seem
unnecessarily time-consuming or complex.
Many of the principles discussed
in this module are applicable to your
role as an inspector or as a witness in
the enforcement of other EPA regulations
and Federal laws. The basic problems of
legal entry may arise in all types of
regulatory inspections. The legal basis
for methods of collecting and preserving
evidence are essentially uniform for
most civil and criminal investigations.
Additionally, proper attitude and
behavior for a witness varies little
among different legal forums.
Legal principles are meant to be
applicable to a variety of different
circumstances. Laws enable society to
be organized to the extent that they make
the outcome of business, political, and
social interactions predictable.
To understand better how inspection
and enforcement activities fit into our
legal system, let's explore the sources
of legal authority that support EPA's
mission under the Clean Water Act.
Legal authority in our system of
Government comes from (a) the U.S.
Constitution, (b) legislation passed by
Congress, (c) common law principles
established and developed by court
decisions, (d) regulations adopted by
Government agencies, and (e) court
decisions interpreting the first four
and showing their application under
varying factual circumstances.
The U.S. Constitution is the
foundation for all powers exercised
by the Federal Government. Only those
powers that are specifically granted or
implied to Federal authority in the
Constitution can be exercised by the
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
EPA Authority
Federal Government. Specifically, the
Constitution provides for Congress to
pass laws; for the executive branch and
its agencies to administer or carry out
(execute) the laws; and for the Federal
courts to interpret or explain those
laws, to settle or resolve disputes over
the laws, and ultimately, to authorize
and determine specific sanctions or
punishment for violation of the laws.
Congress exercised its legislative
authority under the Constitution by pass-
ing the various water pollution control
statutes, the latest of which is the
Clean Water Act of 1977 (Public Law
95-217), herein after called the Act.
The 1977 Act revised the Federal Water
Pollution Control Act Amendments of 1972
(Public Law 92--500) . In the Clean Water
Act, Congress has given EPA the authority
to regulate the discharge of pollutants
to waters of the United States, i.e. to
issue permits, obtain information,
inspect, and take enforcement action.
The statute gives EPA broadly defined
authority to establish the National
Pollutant Discharge Elimination System
Permit Program to define control
technologies and establish effluent
limitations based thereon, to obtain
information through reporting and
compliance inspections, and to take
enforcement actions, both civil and
criminal when violations of the Act
are found.
Because the Act does not itself
define each detail to be followed by EPA,
Congress has authorized the Agency to
develop regulations to carry out the
law.
Whenever the Agency adopts a regula-
tion, that regulation has the same force
and effect as if the law were passed by
Congress, assuming the regulation is
within the Agency's authority and is con-
stitutional. EPA's current regulations are
the NPDES Permit Program were promulgated
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSL
NOTES
LESSON
III. AUTHORITY
Appendix
Marshall
A:
v Barlow1s
on June 7, 1979, and are found in the Code
of Federal Regulations (CFR) at 40 CFR
Parts 122 through 125. These regulations
were then incorporated into the
Consolidated Permit Regulations, 45 FR
33289, issued on May 19, 1980. The
Consolidated Permit Regulations were
developed in order to consolidate
requirements and procedures for five EPA
permit programs including the NPDES
program under the Clean Water Act.
III. AUTHORITY
The authority for EPA to conduct
inspections, including the inspector's
rights to enter premises on which an
effluent source is located and to have
access to records, monitoring equipment,
and methods, is found in Section
308(a)(B) of the Act. Further specifi-
cation of authority to inspect permitted
facilities is found in 40 CFR 122.14(f)
[Conditions Applicable to All Permits].
General conditions affecting monitoring
requirements for permits are found in 40
C.F.R. Part 122, Subpart C, "Permit
Compliance."
Authority for an agency or its
inspectors to act is always limited
in some way—by the Constitution, by
the authorizing law or regulations,
or by the common law, i.e. decisions
of courts that define the limits of
authority., For example: Inspections
of regulated facilities by represen-
tatives of Federal agencies recently
came up for review by the U.S. Supreme
Court, in Marshall v Barlow's Inc., 436
U.S. 307, decided in 1978. This case is
usually referred to as the Barlow* s case
( see Appendix A ). In the case, the
court examined the constitutionality of
the inspection program conducted by the
Occupational Safety and Health Adminis-
tration (OSHA). The Supreme Court
concluded that the Constitution guarantees
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
against unreasonable searches and
seizures and limits the authority of OSHA
inspectors to enter work sites unless the
inspector has either (1) obtained proper
consent, or (2) obtained a search warrant,
The decision also shows that except in
specific situations an owner may not be
punished or fined for insisting that the
inspector obtain a search warrant before
entering the premises for an inspection.
How the Barlow's case affects inspections
will be covered
detail.
a little further on in
In order to determine whether the
permit conditions are met by the NPDES
permittee, Section 308 of the Act allows
for inspection and monitoring. In
effect, the section provides for two
types of monitoring. First, the permit-
tee must monitor himself: "... the
Administrator shall require the owner
or operator of any point source to
...maintain records, ...make reports,
use monitoring methods,... sample
effluents, ...and provide other
information...." in a manner prescribed
by the Administrator. Second, the
Administrator of EPA may check the
permittee's monitoring, and conduct his
own monitoring. "The Administrator ...
shall have a right of entry to...any
premises in which an effluent source is
located or in which any records required
to be maintained... are located, and
may...have access to and copy any
records, inspect any monitoring equipment
or method,...and sample any effluents
which the owner or operator of such
source is required to sample." Although
the Act grants to the Administrator of
EPA the power to monitor permittees, it
is obviously impractical for the
Administrator himself to visit every
permittee's premises. So Congress, in
subsection 308(a) of the Act, gave the
authority to enter, inspect, and sample
to "...the Administrator or his autho-
rized representative, upon presentation
of his credentials."
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issu
NOTES
LESSON
Credentials
An inspector is issued credentials
designating him as an authorized
representative of the Administrator.
An inspector's credentials are his proof
of authority to enter and inspect a
facility and must, therefore, always be
presented when entering a facility.
This is to protect permittees from
unauthorized inspections. The use of
Agency enforcement credentials also
protects the inspectors, as will be
discussed later in the module. Failure
of an inspector to present credentials
may be a point on which an enforcement
case is thrown out of court.
An inspector, on entering a
facility, must gain consent to inspect
the facility from a company official
authorized to give the consent. Again,
like showing credentials on entry, this
must be done to assure that the data
collected is admissible in court; later
we will discuss how to ensure "consent"
before an inspection is conducted without
a warrant.
We have already discussed the fact
that the inspector is an agent, or
representative of the Administrator,
whose job is; visible (few other EPA
representatives come in direct personal
contact with regulated companies);
important (gathering and reporting
information to help the Agency do its
job is essential to the success of the
Agency's efforts); sensitive (no company
or organization is going to rejoice at
the business inconvenience associated
with the arrival of a Government
inspector); and highly responsible (an
inspector's credentials directly confer
the authority to inspect facilities for
compliance --with no other control or
supervision). Thus, the inspector should
take his or her authority seriously.
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
IV. PERSON SUBJECT
Appendix B: Relevant
Sections of the Act
V.
PREINSPECTION
LEGALITIES
IV. PERSON SUBJECT
In conducting an inspection, an
inspector must first ask who is subject
to EPA authority to be inspected under
the Clean Water Act. To determine who
may properly be inspected, we look to the
statutes (particularly Section 301, 308,
402, and 502 of the Act, see Appendix B)
and the NPDES regulations, 45 FR 33289,
Monday, May 19, 1980, ("Who" is a per-
mittee or applicant).
The objective of the Clean Water Act
is to restore and maintain the chemical,
physical and biological integrity of the
Nation's waters. To achieve this goal,
Section 301 of the Act prohibits all
discharges of pollutants by any "person,"
("person" including individuals,
partnerships, corporations, States, munici-
palities etc., as defined in Section 502 of
the Act) except as allowed by the Clean
Water Act. In Section 402 of the Act, the
Administrator can issue a permit for the
discharge of any pollutant, or combination
of pollutants that meets the requirements
of Sections 301, 302, 306, 307, 308, and
403 of the Act or conditions that the
Administrator determines are necessary to
carry out the provisions of this Act.
Section 308 of the Act allows the
Agency to obtain information necessary to
carry out the provisions of the Act.
To the NPDES inspector, the different
sections of the Act mean that an inspec-
tion may be conducted wherever there is a
existing NPDES permit or, when no permit
has been issued, a discharge exists or is
likely to exist, and information to carry
out the provisions of the Act is necessary.
V.
PREINSPECTION LEGALITIES
Before conducting an inspection, an
inspector should be aware of the legal
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issu
NOTES
LESSON
Neutral Inspection
Plan
Appendix C: Neutral
Inspection Plan
issues surrounding an inspection. Some
of these issues involve a) the selection
of sites for conducting an inspection
(Neutral Inspection Plan), and b) entry
to a facility (308 Letter and Confiden-
tiality) .
A. Neutral Inspection Plan
To begin with, an inspector
should be aware of the Neutral
Inspection plan for NPDES Compliance
Inspections. In response to the
Supreme Court decision in Marshall v.
Barlow's Inc., 436 U.S. 307 (1978),
the Neutral Inspection Plan was
developed to be used when targeting
routine compliance inspections. The
purpose of the plan is to eliminate
any bias in targeting inspections
(see Appendix C).
Compliance inspections performed
under the NPDES Program can be
divided into two general categories:
(1) those inspections targeted using
administrative factors, such as time
since the last inspection; and
(2) those inspections targeted due to
civil probable cause, e.g., based on
specific evidence of an existing
vlolation.
Inspections based on the second
category are based on prior knowledge
of apparent or probable permit vio-
lations. Factors which constitute
specific evidence include: (1) vio-
lations reported on recent Discharge
Monitoring Reports (DMRs);
(2) citizen complaints; (3) response
to emergency situations, such as
threats to public health or safety;
(4) follow-up to previous inspections
which indicated violations; and
(5) specific inspections for enforce-
ment case support.
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
308 Letter
Appendix D: Sample 308
Letter
It is for the first category
of inspections, those based on
administrative factors or routine
inspections, that the Neutral
Inspection Plan outlines the admin-
istrative factors to be used in
targeting inspections. By using
the plan, facilities are targeted
objectively and a rationale is pro-
vided for obtaining an administrative
warrant if right-of-entry to inspect
an NPDES facility is denied and
probable cause is not a factor.
The criteria for targeting per-
mittees for Neutral Compliance
Inspections are the time that has
passed since the last inspection and
the geographical grouping of the per-
mittees. Only these factors may be
considered for the Neutral Inspection
Plan. Other information, such as data
from DMRs which indicated apparent
violations, would not be used in the
plan since this would constitute
probable cause under the civil stand-
ard. However, the existence of such
data would not preclude the facility
from being considered for a Neutral
Inspection if the Neutral Plan is
followed during the selection process.
The only permittees who would not be
considered when targeting Neutral
Compliance Inspections are permittees
who are in current litigation with EPA.
This does not apply to State litiga-
tion. For more information on this
subject, you should refer to the
Neutral Inspection Plan itself.
B.
308 Letter
In preparing to conduct an
inspection, a 308 letter is sent to
the permittee that is to be inspected.
A 308 letter is called such because it
sites the authority under Section 308
of the Act to inspect a facility (see
Appendix D).
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSL
NOTES
LESSON
Confidentiality
Background
The purpose of the 308 letter is
to advise the permittee that an
inspection is scheduled for a certain
facility within the next six months.
This forewarns the permittee that an
inspection is imminent. The 308 letter
usually requests information regarding
on-site safety regulations to avoid
problems concerning safety equipment
at the time of the inspection.
The 308 letter may also specify
the exact date of the inspection if
surprise is not necessary, and coordi-
nation with the permittee is required,
such as may occur with a Performance
Audit Inspection.
The 308 Letter is also used to
inform the business of its right to
assert a claim of confidentiality.
C. Confidentiality
As noted in the previous section,
when conducting compliance inspections
an inspector may have to deal with
claims of confidentiality as author-
ized under Section 308 of the CWA and
as defined under 40 CFR Part 2. This
section of the statute is designed to
protect confidential business informa-
tion from unauthorized disclosure.
Confidential business information
includes information considered to be
trade secrets (including chemical
identity, processes, formulation, or
production data) that could damage a
company's competitive position if it
became publicly known.
Normally, information collected
during an inspection would be made
available in response to a Freedom of
information Act (FOIA) request unless
the information were determined to be
exempt from release under strict FOI7*
criteria. If the data has been
claimed confidential business infor-
mation by the company, EPA would
10
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
Right to Claim
Confidentiality
follow certain procedural steps prior
to release of the information and the
data would not be released at all if
it was determined to be entitled to
confidential treatment.
Any business being inspected under
the authority of Section 308 of the Act
has the right to claim all or any part
of the information an inspector request
or has access to during an inspection
as confidential. EPA must notify the
business of its right to assert a claim
of confidentiality. The business may
be notified of this right in the 308
letter of notification. By also
including in the 308 letter a time
period within which the business should
respond, EPA will be alerted to any
potential problems concerning confiden-
tial information which the inspector
may encounter, before the actual
inspection. This will avert needless
waste of resources while inspectors
attempt to negotiate claims of
confidentiality and related right-of-
entry problems at the time of the
inspection. This is especially
important when contract inspectors
are being involved in inspection
activities.
40 CFR 2.203(c) provides that the
affected business may also assert a
claim of confidentiality at any time
after the information is submitted to
EPA. Therefore, the business is
entitled to make a claim to the
inspector at the time of the inspec-
tion or at any time subsequent to the
inspection. Any claim must be in
writing and signed by a responsible
company official.
While the business is entitled
to make a claim of confidentiality on
all information which an inspector
requests or has access to while on-
site, claims of confidentiality are
11
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSL
NOTES
LESSON
subject to review by the EPA legal
office. The claim of confidentiality
by a business relates only to the
public availability of such data, not
to its availability to inspectors
performing duties under Section 308.
When a business makes a claim of
confidentiality, the Regional office
will not normally make a determination
as to the applicability of 40 CFR Part
2 until there is a request for the
information from a third party. The
business may want to request a
determination before that time. Such
a request should include the reasons
for the claim as well as supportive
technical data and legal authority.
The exact procedures for making and
handling these requests are contained
in 40 CFR Part 2. Until such a time
as that determination is made, the
information shall be treated as
confidential information.
A business may also make a claim
of confidentiality on any reports
which are generated by the inspector
concerning a specific inspection.
The business should make a claim in
its response to the 308 letter which
it has received.
In some cases, entry to a
facility may be denied based on the
claim by a permittee that there may
be confidential information at the
facility. In such cases the inspector
should recite the relevant subsections
of Section 308 of the Act substantiat-
ing the lawful authority to enter the
facility so they are clearly under-
stood by all parties involved. The
inspector should then explain the
provisions of 40 CFR Part 2 concerning
confidentiality. The inspector should
have in his possession a copy of both
the 308 letter which was sent to the
business and the businesses response
I
12
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
Types of Information
Excluded from
Confidential
Treatment
The inspector should present these
documents to the facility representa-
tive. If the facility representative
still refuses the inspector entry, the
inspector should not contest the issue
but should treat the matter in the
same manner as any denial of entry.
The inspector should immediately
notify the appropriate EPA enforcement
office for instructions.
In order to understand claims of
confidentiality, an inspector should
know the type of information that may
be considered confidential. These
types of information are defined in
40 CFR Part 2. The inspector should
inquire about Regional policy regard-
ing confidentiality.
The regulations specifically
exclude certain types of information
from confidential treatment. Under
the authority of Section 308(b) of the
Act, this includes all information
contained in the businesses NPDES per-
mit and all "effluent data." Under 40
CFR 2.302 (a)(2)(i), effluent data
includes all information necessary to
determine the identity, amount, fre-
quency, concentration, temperature or
other characteristics (to the extent
related to water quality) of:
1)
any pollutant
discharged by
any pollutant
any discharge
which has been
the source (or
resulting from
from the
2)
source), or any combination
of the foregoing; and
the pollutant which, under
an applicable standard or
limitation, the source was
authorized to discharge
(including, to the extent
necessary for such purpose,
a description of the manner
or rate of operation of the
source).
13
-------
U.S. ENVBRONMENTAL PROTECT3OW AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issur
NOTES
LESSON
Secrecy Agreements
Effluent data also includes a
general description of the location
and/or nature of the source to the
extent necessary to distinguish it
from other souces (including, to the
extent necessary for such purposes, a
description of the device, installa-
tion, or operation constituting the
source).
Compliance inspections are
concerned with the gathering of infor-
mation which would be defined as
"effluent data" within the meaning of
40 CFR. However, in some cases, the
inspector may want to request infor-
mation which may not be strictly
"effluent data" and which the business
might want to consider confidential
information (e.g., when information
on process or production level changes
would be helpful to verify that the
permit adequately characterizes the
effluent waste stream of the
business).
Inspectors, either EPA or
contractors conducting NPDES compli-
ance inspections for EPA, shall not
sign any pledge of secrecy or
confidentiality agreements regarding
information received while inspecting
a facility. Any agreement which would
limit the Agency's ability to disclose
information should never be signed.
Section 308 does not specify that a
secrecy agreement must be executed as
a condition of entry. Unauthorized
disclosure of confidential information
by EPA employees is prohibited by law
(33USC1318(b)). Similarly, since
these requirements are included in all
EPA contracts with the private sector,
contract inspectors are subject to the
same restrictions as EPA inspectors.
All contractor inspectors sign a
statement which states that they will
be personally bound by 40 CFR Part 2.
14
-------
..
NVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
EPA Inspectors and
Confidential
Information
Contractors and
Confidential
Information
Whether information claimed to be
confidential by a business will later
be determined not to be confidential
business information is of no concern
to the compliance inspector. Once a
claim is made, the information must be
kept confidential until the determi-
nation is made by the appropriate EPA
legal office.
The regulations of 40 CFR Section
2.211 preclude EPA employees from
using or disclosing any business
information which was obtained during
the performance of the employee's
official duties. In addition, EPA
employees must take all appropriate
action to safeguard confidential
business information from improper
disclosure. This includes informa-
tion that a business has claimed to
be confidential and for which no
determination has yet been made by
the EPA legal office.
EPA employees who violate these
requirements are subject to dismissel,
suspension or fines. Criminal action
may be taken against EPA employees
who disclose business information.
A contractor with EPA who obtains
business information during execution
of an EPA contract can disclose
information only as allowed in the
contract. Violation of these require-
ments by a contractor may be grounds
for suspending the contract or con-
tractor employee. The Clean Water
Act does not provide for criminal
sanctions against contractors who
willfully violate the contract require
ments concerning confidential business-
information.
15
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issu
NOTES
LESSON
Compliance File
Reference:
Compliance
Inspection
NPDES
Evaluation
Permittee Rights
VI
INSPECTION
OBJECTIVES
D. Compliance File
To prepare further for an
inspection, the inspector should have
a compliance file put together before
an inspection. This file (described
in the Compliance Evaluation Manual)
should contain a copy of the permit,
the 308 letter, and the name and num-
ber of the persons of authority at
the facility and previous inspection
reports. The inspector should have
also coordinated the inspection with
all offices involved, such as State
or local government. Good preinspec-
tion coordination will prevent many
problems from occurring.
E. Permittee Rights
The Clean Water Act states, "The
objective of this Act is to restore
and maintain the chemical, physical,
and biological integrity of the
Nation's waters." However noble the
purpose of the Act, its execution is,
nevertheless, limited by the rights
of persons subject to the Act. As a
general principle of law, constitu-
tional rights cannot be irrevocably
sold, forfeited, or otherwise
relinquished. The NPDES regulations
require one condition in
that the permittee allow
inspection powers to EPA
tives. But in doing so,
really does not bargain
all permits,
certain
representa-
the permittee
away any of
his own rights because the inspection
powers are no more extensive than
those granted in Section 308.
VI. INSPECTION OBJECTIVES
Anyone who has had field experience
should already be familiar with the
objectives of an inspection. What does
an inspector inspect during an NPDES
inspection? From a legal standpoint, this
question should be answered by the Clean
Water Act.
16
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
Limitation of
Inspections
Section 308 and NPDES regulations
provide the general authority (scope) and
limitations for inspections. Terms and
conditions of a permit, however, more
precisely define the authority to inspect
a permitted facility. In the absence of
unusual circumstances, all compliance
inspections should be conducted only with
reference to the permit. If something
unforeseen arises during the inspection,
make note of the occurrence and report it
to a supervisor or Agency attorney.
Identification of the premises, source
or sources of discharges, sampling points,
monitoring equipment, and point(s) of final
discharge should also be specified in the
permit.
The type of sampling that may be done
at the facility is determined by the terms
of the permit. Concentration of pollutants
and temperature, appearance, and flow rate
of the effluent are examined to provide
information regarding a permittees
compliance.
The objects of inspection that have
been discussed so far allow EPA to monitor
pollutant effluents from a permittee's
source. Clause (A) of Section 308(a)(4)
states, "The Administrator shall require
the owner or operator of any point source
to (i) establish and maintain such records,
(ii) make such reports, (iii) install, use,
and maintain such monitoring equipment or
methods (including, where appropriate, bio-
logical monitoring methods), (iv) sample
such effluents (in accordance with such
methods, at such locations, at such
intervals, and in such manner as the
Administrator shall prescribe), and
(v) provide such other information as he
may reasonably require." Clause (B) pro-
vides that EPA inspectors may have access
to and copy the records, and inspect the
equipment or methods required in Clause
(A). This access is allowed even if the
records are not kept on the same premises
as the effluent source.
17
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL iss
NOTES
LESSON
VII. INSPECTION
LEGALITIES
Entering the
Facilities
Presenting
Credentials
Appendix E: Credentials
An inspection under the authority of
Section 308, may take the inspector to
property:
A. Across which an effluent flows
B. From which the effluent was
first conveyed
C. Where a permittee collects
effluent samples
D. Where the effluent samples
are analyzed
E. Where the permittee's records of
analysis are kept.
Once he is granted access to all such
property, the inspector may view the
source, sample the effluent, read and copy
the records, and inspect the monitoring
equipment and methods.
VII. INSPECTION LEGALITIES
To conduct an inspection, the inspec-
tor should arrive at the facility and enter
through the front gate. It is stated in
the Act that inspections be made "at rea-
reasonable times." This expression implies
the normal business hours of the permittee;
but exceptions may be made in cases of
evasive permittees, emergencies, etc. How-
ever, an inspector may attempt to make use
of exceptions only after obtaining the
approval of his or her supervisor and an
Agency attorney.
Upon arrival at the plant location,
the inspector should "fill in the blanks"
in his information as soon as possible,
that is, check the owner's name and the
plant address, ascertain who is in charge
at the plant, etc. The inspector should
sign in, and EPA credentials should be
presented to show that the inspector is
an authorized representative of the
Administrator (Appendix E). The inspector
(or contractor conducting inspections for
18
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
Obtaining Consent
to Inspect
Steps for Entering
a Facility
EPA) should, under no circumstances, sign
either a confidentiality agreement or a
liability waiver. If the inspector is
denied admittance because he will not sign
either of the above, the inspector should
leave and notify his supervisor at once.
The first step, after presenting
one's credentials and explaining the
purpose of the visit, is to find a per-
son having authority to consent to the
inspection. That is, the inspector
must seek the permission of an agent
or authorized representative of the
facility. The key here is that "the person
in charge" must be contacted. The most
direct method for obtaining consent to
inspect is the "take me to your leader"
approach. In all seriousness, the
inspector's responsibility is to speak to
the plant employee or agent, or representa-
tive who has sufficient authority over the
plant to permit access to the plant for the
inspection. By gaining consent to inspect
the facility from the proper authority,
the inspector is guaranteeing the consti-
tutional right of the permittee (as
determined by the Barlow decision) against
unreasonable searches and seizures.
The important steps are to:
A. Identify yourself and display
your credentials to the
charge."
'person in
B. Explain clearly why you have come
to the plant, what you want to see,
and that your work is being done under
Section 308 of the Clean Water Act.
(Have a copy of Section 308 to show
the person in charge if that person
does not know or understand what
Section 308 is.)
C. Explain that it is the
permittee's right to claim material
confidential and that you as an
19
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL iss
NOTES
LESSON
Withdrawal of Consent
inspector, under Section 308, may
examine areas relating to effluent
production or storage even if it has
been claimed confidential.
D. Ask for permission to begin the
inspection. An inspector may not go
to a nonpublic area of the plant
without consent (or a warrant) and
should not attempt to do so.
The consent of the person in charge
must be informed and voluntary. Informed
consent means the person must understand
the purpose of your visit. Voluntary means
that consent is given freely and not based
on trickery or coercion. If a person in
charge refuses to allow an inspection, you
may advise the person that they may wish to
consult with counsel prior to deciding to
refuse entry and that you are required to
report the refusal of entry to your super-
visor who will then determine if EPA will
seek a search warrant. This is a truthful
statement of what you will do and are
legally entitled to do. Under no cir-
cumstances is it proper to threaten any
punishment for the person's refusal of
consent. In Barlow's, the Supreme Court
ruled that no sanction may be imposed upon
an owner who declines to consent to inspec-
tion but instead insists upon a warrant.
Court has also stated that consent may
be withdrawn. Therefore, if the "person in
charge" tells you to stop an inspection and
to leave the premises, you should proceed
as if consent has not been given for you to
do anything further. You must then follov/
the steps for obtaining a warrant. In this
circumstance, you may use all information,
data, photographs, samples, etc. gathered
up to the point consent was withdrawn. You
should make careful notes about what you
did and saw up to that point so that any
useful evidence you have collected may be
used in a hearing, if necessary.
20
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
VIII. WARRANTS
Reasons for Issuing
a Warrant
Types of Warrants
VIII. WARRANTS
As mentioned, the Supreme Court ruled
in the Barlow case that the owner of a
property, or his agent, could lawfully
refuse entry to the representative of an
agency seeking to conduct an inspection of
the property without a search warrant.
The ruling was based on the fourth
amendment to the Constitution, which
guarantees freedom from unreasonable
searches and seizures. The use of a war-
rant to gain entry to a facility to inspect
is very rare; most inspections are con-
ducted on the basis of consent. The next
few sections may not apply directly to a
new inspectors daily inspection duties, but
were included to give a complete picture of
the legal aspects of the NPDES inspection
program. The Court ruled that there are
three types of grounds for the issuance
of a search warrant to be used for an
inspection:
A. Criminal probable cause, which
requires proof that a crime probably
has been committed.
B. Civil probable cause, which
requires proof in a specific case
that a civil wrong or violation has
taken place.
C. Administrative probable cause,
which requires proof that selection
of the property to be inspected has
been made pursuant to a "neutral
inspection scheme."
These are two types of search
warrants which may be issued, a
1. Criminal search warrant
2. Civil or administrative
search warrant
21
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL iss
NOTES
LESSON
Administrative Search
Warrant
Reasons to Seek
Warrant in Advance
Administrative Warrant
A criminal search warrant will be
sought in the cases of specific plants in
which it is expected that Clean Water Act
violations require criminal action under
Section 309. A Regional attorney will
have already become involved in the case
before the warrant is sought. This type
of warrant will be explained in more
detail further on.
Administrative warrants, likewise,
should never be sought for specific cases
(violations) unless a Regional attorney
has already become involved in the case.
Administrative warrants are used when
there is cause to believe that the Act or
permit have been violated or there is an
emergency situation, such as threats to
public health and safety and it is antici-
pated that EPA will seek civil penalties
or other relief for violations in a civil
action in the Federal District Court.
Administrative warrants may also be
used to inspect facilities where there are
no known violations of the Act, yet
information is needed to determine whether
or not the permittee is in compliance.
Obtaining a warrant under these circum-
stances will depend upon previously
developed "neutral inspection plans."
A.
Administrative Search Warrant
In most NPDES inspections, the
need for an administrative warrant
will arise only after entry to a
facility is refused. However, super-
visors may decide to request a warrant
without waiting for a refusal of
entry. EPA and Department of Justice
attorneys consider the following in
deciding whether or not to apply for a
warrant. These include:
1. The need for surprise.
During the time required to
obtain consensual entry,
22
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
Obtaining the Warrant
evidence may be lost or
destroyed.
2. Past performance. Past
refusals of entry or simi-
lar uncooperative behavior
may indicate that it will be
futile to attempt a consensual
entry.
3. The amount of delay that
would later occur if a
warrant becomes necessary.
Lengthy travel time may be
necessary to obtain the aid
of a magistrate or a U.S.
attorney.
For EPA inspections,
administrative warrants should not be
sought before an initial inspection
unless cleared through Headquarters.
B. Obtaining the Warrant
The administrative procedures
for obtaining any type of search
warrant are essentially the same.
The application for a warrant cites
the statutes and regulations pursuant
to which the warrant is requested.
The application also specifies, as
clearly as possible, the premises to
be inspected, and describes, very
generally, how the search will be
conducted. Finally, the application
outlines the facts giving rise to
probable cause and refers to the affi-
davit(s) supporting the application.
A supporting affidavit is a sworn
'statement describing in detail the
facts necessary to justify the issu-
ance of a search warrant. The person
who signs the affidavit should have
personal knowledge of all the facts
presented, or should explain the
source of hearsay that is used as a
basis for the affidavit. After denial
23
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issi
NOTES
LESSON
of entry, the inspector usually signs
an affidavit. When there is not
probable cause per se, an affidavit
describing the neutral administrative
plan and its applicability to the
premises is signed by an EPA official
The thoroughness and truthfulness of
an affidavit are critical.
Finally, a draft warrant is
prepared and submitted for signature
with the application and affidavit.
The warrant orders an EPA inspector,
U.S. Marshall, or other appropriate
person to enter the property and
conduct certain elements of an
inspection. The instructions
specified in the warrant should be
broad enough to include all neces-
sary and useful record copying,
sample collecting and picture
taking, but not so broad as to be
rendered unclear by their vagueness.
After the warrant is signed by
a judge or magistrate, the inspector
to whom it is directed may proceed
to execute its instructions. In
many instances, the warrant will be
directed to a U.S. Marshall whom
the inspector will accompany. An
entry refused in the face of a
warrant may lead to forcible entry
procedures or contempt of court
charges. In executing the warrant,
the inspector should scrupulously
abide by its terms. If any articles
are to be removed from the premises
by the inspector, he must prepare an
inventory of those articles and pro-
vide a receipt for them. After
executing the warrant, the inspector
must complete a return of service
form with the name of the person who
was served the warrant, date of
service, and his own signature. The
return of service form, executed
warrant, and inventory, if any, are
then returned to the issuing judge
24
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
Appendix F: Example
of a Warrant
Criminal Search Warrant
Criminal Acts
Falsification of
Information
by the U.S. attorney (see Appendix F
for an example of a warrant).
C.
Criminal Search Warrant
The Clean Water Act defines both
civil and criminal violations. It is
possible that an NPDES inspection
might turn into a criminal investi-
gation. This transition could have
many legal effects on the way the
inspection is conducted, on the way
a case would be prosecuted, and on
the penalties for conviction.
The violation of any condition
or limitation in an NPDES permit is
a civil violation. However, if the
violation is either willful or
negligent, it is a crime. Legally,
a person's act is willful if it is
done knowingly and intentionally.
Another type of crime defined
in the Act is falsification of
information. This crime is com-
mitted by any person who "knowingly
makes any false statement, repre-
sentation, or certification in any
application, record, report, plan or
other document filed or required to
be maintained under this Act or who
falsifies, tampers with, or
knowingly renders inaccurate any
monitoring device or method required
to be maintained under this Act."
If you have any reason to suspect
criminal probable cause during the
process of an investigation, contact
the legal counsel in your Region for
further instructions.
As discussed previously, the
fourth amendment expresses the right
to be free from unreasonable
searches and seizures. The manner
in which the courts protect this
right is to disallow the use of
evidence that was obtained
25
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issu
NOTES
LESSON
Burden of Proof
illegally. A legal search to obtain
evidence intended for use in a
criminal prosecution requires the
use of a criminal search warrant
obtained under Rule 41 of the
Federal Rules of Criminal
Procedure.
By comparison, the require-
ments for obtaining an
administrative warrant or a search
warrant for civil prosecution are
much less rigorous. This difference
leads to a conflict; that is,
whether evidence obtained by
execution of a civil search warrant
can be used in a criminal prosecution.
Inc. (98
Michigan v Tyler (98 S.
v La Salle National
S.
of
Based on Marshall v Barlow's
S. Ct . 1816),
Ct 1952) , and U
Bank (57L. Ed. 2d 221), the crux
the issue is whether a criminal
prosecution was anticipated before
commencement of the search. If so,
a criminal search warrant would have
been required; and evidence obtained
under a civil warrant would be
inadmissible in a criminal prosecu-
tion. However, where only a civil
prosecution is anticipated but
evidence of a criminal violation is
found in the course of executing a
civil warrant, that evidence will be
admissible in a criminal prosecution.
One last difference between a
civil and criminal action also
reflects the greater protection
afforded persons subject to criminal
prosecution. "Burden of proof" refers
to the weight of evidence needed to
prove in a trial that a person is
guilty of a civil or criminal wrong-
doing. A civil conviction requires
only a simple preponderance of evi-
dence. A criminal conviction requires
showing evidence beyond a reasonable
doubt. This difference in burden of
26
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
IX. GATHERING AND
PRESERVING EVIDENCE
Sample Results
as Evidence
proof affects inspectors only to the
extent that they must be extremely
thorough in gathering evidence to
support a criminal case.
IX. GATHERING AND PRESERVING EVIDENCE
Inspections are conducted under the
NPDES Program to ensure that permittees
adhere to the terms of their permits. If
a permittee does not adhere to these terms
or misrepresents whether he is adhering to
the terms, he may become subject to pro-
secution. Therefore, as described in
previous sections of this course, the
information gathered during inspections may
be needed as evidence in the prosecution of
court cases. Evidence consists of
different kinds of materials used to estab-
lish facts, such as inspectors logbooks,
which in turn support violations.
The most frequently gathered informa-
tion is derived from samples taken by the
inspector. In order for the results of the
analysis of these samples to be admissible
as evidence, a logical and documented
connection must be shown between samples
taken and analytical results reported.
This connection is shown by using any
system that prevents the alteration, loss,
mixture, or interchange of the samples
between the time at which they were taken
and the time at which they were analyzed.
An effective system has three parts:
A. Each sample is labeled to
uniquely identify it.
B. Each sample is kept securely
closed between time of sampling
and time of analysis to assure
preservation of sample
integrity.
C. An uninterrupted chain-of-custody
is maintained.
27
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issu
NOTES
LESSON
Photographs
X. BASIS FOR TESTIMONY
XI. PRESENTING EVIDENCE
FROM INSPECTION
The details regarding how an inspector
should implement chain-of-custody during an
inspection are outlined in the training
module on Sampling. The legal pitfalls
associated with the system deserve to be
mentioned. First, labeling should follow a
uniform policy. If individual inspectors
make up their own sample code, the result-
ing confusion could disqualify the sample
as evidence. Second, sample containers
should be carefully selected and used. The
method used to seal the containers (if the
sample will be left unattended) should be
capable of indicating if the seal has been
breached. Finally, forms should accompany
the sample and be signed by each person
having custody of it. A sample is in
custody as long as it is within your actual
possession, within your range of view with-
out interruption, or stored by you in an
enclosed, secure area.
Other physical evidence, such as
photographs, are effective and admissible
if properly identified by and supported
with the testimony of the inspector who
took them. As with all physical evidence,
identification and proof of authenticity
are crucial.
X.
BASIS FOR TESTIMONY
Testimonial evidence is not collected
in the same sense as is physical evidence.
However, an inspector's notes, either
written or dictated on tape, can be used as
a basis for presenting testimony later. It
is important that the inspector record
observations rather than opinions. While
opinions may be admissible, only those
opinions that you are qualified to express
by training or other expertise may be
admitted. The inspector should be able to
reconstruct the investigation from the
notes in his logbook.
XI. PRESENTING EVIDENCE FROM INSPECTIONS
The previous sections of this module
have covered various aspects of the EPA
28
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
Admissibility of
Ev idence
inspector's role in conducting inspections
and gathering evidence. This section
focuses on the inspector's presentation of
that evidence.
A. Admissibility of Evidence
Evidence is subject to various
rules of evidence, depending on the
legal forum (State or Federal court)
in which it is sought to be used and
the type of proceeding (civil or
criminal) in which it is to be used.
However, certain general rules apply
universally to the admissibility of
evidence.
In order to ease the burden of
presenting a case, some facts can be
taken as true without proof. These
fit into several categories:
1. Judicial notice. A court may
recognize certain facts as
common knowledge. For
example, that 1+1=2 and
that July 11, 1979, was a
Wednesday.
2. Admissions in the pleadings.
The parties in a case may
admit the truth of certain
facts in the written pleadings
that they submit.
In the course of presenting
evidence, documents are frequently
used, including permit forms,
laboratory analysis reports,
letters, written contracts, and
deeds.
For many official Government
documents there is a statute that
provides for a custodian to keep the
documents and to certify their
authenticity.
29
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issu
NOTES
LESSON
Serving as a Witness
The Inspector as a
Witness on the stand
B. Serving as a Witness
The inspector is a witness when
he signs an affidavit supporting an
application for a search warrant. The
inspector's role may require him to
provide information in a case, even
before the case comes to trial. The
inspector may be called upon to
provide information to answer the
opposing party's interrogatories with
his deposition. This is known as the
process of discovery, during which the
opposing party, within the rules
governing civil procedure, allow the
opposing party to obtain information.
Of course, he should always tell the
truth; but he should also remember
that this deposition may be used
against him during cross-examination.
Giving testimony at a trial
involves substantial prior
preparation. The witness should go
over his testimony carefully and
be made aware of the questions he
will be asked on the stand by the
attorney. There should be no
surprises. If, during cross-
examination, the witness is asked,
"Did you and your attorney talk
about how you would answer the
questions?", the inspector should
have no qualms about saying yes. Be
sure to listen to the exact words
raised by counsel. If the question
is "Did your lawyer tell you what to
say?", the answer may be different.
In addition, a witness should not
only be familiar with the case and
questions, but should have some
practice in a courtroom format. A
mock trial, including cross-
examination, would be a very useful
exercise.
Once on the stand, the witness
should speak loudly and clearly
enough to be heard. If you need
time to think or recollect before
30
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
Cross-examination
answering a question, you should
take it. The inspector should face
the judge to answer any questions he
may be asked. The witness should
answer only the question asked, not
volunteer answers. If a yes-no
question is asked but neither is an
appropriate answer, you should say
so. If you do not understand or
cannot remember an entire question,
you should say so. If you notice
that you have made an error, you
should correct yourself as soon as
possible. If you do not know the
answer to a question, you should say
so. If you need notes to recall
some of your testimony or to answer
a question, request the courts
permission to refer to them and
remember that opposing counsel has a
right to see them. You should not
start answering until a question is
finished and should stop answering a
question as soon as an objection is
raised.
The main consideration during
cross-examination -is to stay calm.
The opposing attorney may try to
cast doubt on what the witness has
said. The witness should not get
angry or be flippant. He should
listen carefully to each question
and watch out for purposeful mis-
quotes of what he has said. If he
becomes uncomfortable, he should
not look at his attorney as if he
expects to be rescued.
Normally, the testimony of
a witness will consist of facts.
However, an expert witness may
also give opinions because he has
specialized expertise in a given
subject. An expert witness must
first be established or "qualified."
His education and experience are
described, and he may be cross-
examined about his qualifications.
31
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL issu
NOTES
LESSON
XII. LIABILITIES
XIII. SUMMARY
His opinion is obtained by asking
him hypothetical questions that
relate to the facts of the case.
XII. LIABILITIES
EPA representatives should be aware
that, in acting as inspectors or
witnesses, some legal liabilities may
arise. While inspecting, the inspector
is an agent of EPA and is generally safe
from liability. However, problems occur
if an inspector does not stay within the
limits of his authority as an EPA
inspector during an inspection. He may
then become personally liable for all of
his actions. One of these limits is that
an inspector identify himself properly.
His EPA I.D. protects him only if he
presents it. The agent might also lose
his status if he exceeds the scope of his
agency by acts such as threatening a
permittee, using force to enter premises,
or accepting remuneration from a
permittee.
On the stand as a witness, some
liabilities may arise but only through
very foolish, overt acts by the witness.
Intentional lying under oath could
subject a witness to prosecution for
perjury. Disturbing the court could make
the witness liable for contempt.
XII. SUMMARY
In summary, most laws affecting the
inspector working within the NPDES
Program are contained in the Clean Water
Act or in the NPDES Regulations. Under
the Act, inspectors, as agents of the
Administrator of EPA, may enter the
premises of permittees and conduct
inspections. Before entry or after
refusal of entry, the use of a warrant
may be necessary. The fourth and fifth
amendments, as well as certain procedural
principles, protect the rights of the
32
-------
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMPLIANCE MONITORING INSPECTOR TRAINING MODULE: LEGAL ISSUES
NOTES
LESSON
permittees being inspected,
when the inspection becomes a
investigation.
especially
criminal
The information gathered during an
inspection may be used as evidence in
prosecuting a civil or criminal case
if the evidence is collected and
preserved properly, and if it is relevant
and material.
Serving as a witness is primarily a
matter of careful preparation and calm,
collected testifying. Serving as an
expert witness on a specific subject
allows the witness, once qualified, to
express an opinion on that subject.
Finally, an EPA employee who serves
as an inspector or a witness is legally
secure as long as he does not greatly
deviate from established procedures.
33
-------
APPENDIX A - MARSHALL V. BARLOW'S DECISION
-------
APPENDIX A
(Page 1 of 11)
!•
\
j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
p* WASHINGTON. D.C. 20460
11 APR 1979
OFFICE OF ENrORCcMENT
MEMORANDUM
TO: Deputy Assistant Administrators for Enforcement
FROM: Assistant Administrator for Enforcement
SUBJECT: Development of Neutral Administrative Inspection Schemes
It is essential that all enforcement programs develop, as soon
as possible, neutral schemes for the conduct of all inspections. This
requirement is mandated by the decision of the Supreme Court in
Marshall v. Barlow's, Inc., U. S. , 98 S. Ct. 1816 (1978). As you
know, the Barlow's decision addressed the issue of the need for and use
of warrants in conducting administrative inspections under various regula-
tory schemes. The Court stated, in general, that a warrant was necessary
when requested by the owner or person-in-charge of the establishment to be
inspected, but that the warrant need not be based on a showing of criminal
probable cause. Rather, a warrant would be issued if it could be shown that
the establishment was being inspected pursuant to a neutral administrative
scheme.
The Department of Justice and the Office of General Counsel agree
that there is an urgent need for each compliance monitoring program to develop
a neutral administrative scheme for inspections, and that such scher.es must
be put into writing. If the schemes are not documented until an inspection
warrant is sought, they will appear to be post hoc rationalizations for
ill-conceived or harassing inspectional programs and will not be favored by
the courts.
I believe that most of our compliance monitoring programs have
developed inspection programs which utilize neutral criteria. In some
instances, however, the total "neutral scheme for each program has not been
formally documented. Examples of neutral criteria which could satisfy the
requirements of Barlow's are random selection; inspecting all or a fixed
percentage of certain types of facilities on an annual basis; ranking
inspections by the amount of controlled chemical substances manufactured,
processed or distributed in ccnunerce; re-inspect ion of establishments which
exhibited prior violations; and other reasonable factors that show that the
establishment being inspected has not been selected for any arbitrary or
invidious reason. The Office of General Counsel will cooperate with the
Office of Enforcement in assuring that the neutral administrative scheTes
developed by each program are compatible with the Barlow's decision.
-------
APPENDIX A
(Page 2 of 11)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
> WASHINGTON. D C. 20460
11 APR :379
MET-'ORANCUM OFFICE OF ENFORCEMENT
TO: Regional Administrators
Surveillance and Analysis Division Directors
Enforcement Division Directors
FROM: Assistant Administrator
for Enforcement
SUBJECT: Conduct of Inspections After the Barlow's Decision
I. Summary
This document is intended to provide guidance to the Regions in
the conduct of inspections in light of the recent Supreme Court decision
in Marshall v. Barlow's, Inc., U.S. , 98 S. Ct. 1816 (1978).
The decision bears upon the need to obtain Vverrants or other process for
inspections pursuant to EPA-administered Acts.
In Barlow' s, the Supreme Court held that an OSHA inspector was noc
entitled to enter the non-public portions of a work site without either
(1) the owner's consent, or (2) a warrant. The decision protects the
owner against any penalty or other punishment for insisting upon a warrant.
In summary, Barlow's should only have a limited effect on EPA
enforcement inspections:
o Inspections will generally continue as usual;
o VJiere an inspector is refused entry, EPA will seek a varrant through
the U.S. Attorney;
j
o Sanctions will not be imposed upon owners of establishments who insist
on a warrant before allowing inspections of the non-public portions
of an establishment.
The scope of the Barlow's decision is broad. It affects all current
inspection programs of EPA, including inspections conducted by State
personnel and by contractors. The Agency's procedures for inspections,
particularly vfaere entry is denied, ware largely in accord with
the provisions of Barlow's before the Supreme Court issued its ruling.
Nevertheless, a number of changes in Agency procedure are varranted.
Thus, it is important that all personnel involved in the inspection
process be familiar with the procedural guidelines contained in this docu-
ment.
-------
APPENDIX A
(Page 3 of 11)
- 2 -
This document focuses on the preparation for and conduct of inspec-
tions, including (1) how to proceed when entry is denied, (2) under what
circumstances a warrant is necessary, and (3) what showing is neces-
sary to obtain a warrant.
II. Conduct of Inspections
The following material examines the procedural aspects of conducting
inspections under EPA-administered Acts. Inspections are considered in
three stages: (1) preparation for inspection of premises, (2) entry onto
premises, and (3) procedures to be followed where entry is refused.
A. Preparation
Adequate preparation should include consideration of the following
factors concerning the general nature of warrants and the role of personnel
conducting inspections.
(1) Seeking a Warrant Before Inspection
Ihe Barlow*s decision recognized that, on occasion, the Agency may
wish to obtain a warrant to conduct an inspection even before there has
been any refusal to allow entry. Such a warrant may be necessary when
surprise is particularly crucial to the inspection, or when a company's
prior bad conduct and prior refusals make it likely that warrantless
entry will be refused. Pre-inspect ion warrants may also be obtained where
the distance to a U.S. Attorney or a magistrate is considerable so that
excessive travel time would not be wasted if entry were denied.
At present, the seeking of such a warrant prior to an initial inspection
should be an exceptional circumstance, and should be cleared through
Headquarters. If refusals to allow entry without a warrant increase, such
warrants may be sought more frequently. (For specific instructions on
how to obtain a warrant, see Part D.)
(2) Administrative Inspections v. Criminal Investigations
It is particularly important for both inspectors and attorneys to
be aware of the extent to which evidence sought in a civil inspection can
be used in a criminal matter, and to know when it is necessary to secure a
criminal rather than a civil search warrant. There are three basic rules
to remember in this regard: (1) If the purpose of the inspection is to
discover and correct, through civil procedures, noncompliance with regulatory
requirements, an administrative inspection (civil) warrant may be used;
(2)" if the inspection is in fact intended, in whole or in part, to gather
evidence for a possible criminal prosecution, a criminal search warrant
must be obtained under Rule 41 of the Federal Rules of Criminal Procedure;
and (3) evidence obtained during a valid civil inspection is generally
admissible in criminal proceedings. These principles arise from the recent
Supreme Court cases of Marshall v. Barlow's, Inc., supra; Michigan v. Tyler,
U.S. , 98 S.Ct. 1942 (1978); and U.S. v. LaSalle National Bank,
U.S. , 57 L. Ed". 2d 221 (1978). It is not completely clear wnether
a combined investigation for civil and criminal violations may be properly
conducted under a civil or "administrative" warrant, but we believe that
-------
APPENDIX A
- 3 - (Page 4 of 11)
a civil warrant can properly be used unless the intention is clearly to
conduct a criminal investigation.
(3) The Use of Contractors to Conduct Inspections
Several programs utilize private contractors to aid in the conduct
of inspections. Since, for the purpose of inspections, these contractors
are agents of the Federal government, the restrictions of the Barlow' s
decision also apply to them. If contractors are to be conducting
inspections without the presence of actual EPA inspectors, these con-
tractors should be given training in hew to conduct themselves when
entry is refused. With respect to obtaining or executing a warrant,
an EPA inspector should always participate in the process, even if
he was not ac the inspection where entry was refused.
(4) Inspections Conducted by State Personnel
The Barlow * s holding applies to inspections conducted by State
personnel and to joint Federal/State inspections. Because some EPA
programs are largely implemented through the States, it is essential
that the Regions assure that State-conducted inspections are conducted
in compliance with the Barlav's decision, and encourage the State inspec-
tors to consult with their legal advisors when there is a refusal to
allow entry for inspection purposes. State personnel should be encouraged
to contact the EPA Regional Enforcement Office when any questions con-
cerning compliance with Barlow's arise.
With regard to specific procedures for States to follow, the
important points to remember are: (1) The State should not seek for-
cible entry without a warrant or penalize an owner for insisting upon
a warrant, and (2) the State legal system should provide a mechanism for
issuance of civil administrative inspection warrants. If a State is
enforcing an EPA program through a State statute, the warrant process
should be conducted through the State judicial system. Where a State
inspector is acting as a contractor to the Agency, any refusal to allow
entry should be handled as would a refusal to an Agency inspector as
described in section II.B.3. Where a State inspector is acting as a
State employee with both Federal and State credentials, he should utilize
State procredures unless.the Federal warrant procedures are more, advantageous,
in which case, the warrant should be sought under the general procedures
described below. The Regions should also assure that all States which
enforce EPA programs report any denials of entry to the appropriate
Headquarters Enforcement Attorney for the reasons discussed in section
II.B.4.
B. Entry
(1) Consensual Entry
One of the assumptions underlying the Court's decision is that
most inspections will be consensual and that the administrative inspec-
tion framework will thus not be severely disrupted. Consequently, inspec-
-------
APPENDIX A
(Page 5 of 11)
- 4 -
tions will normally continue as before the Barlow's decision was issued.
This means that the inspector will not normally secure a warrant before
undertaking an inspection but, in an attempt to gain admittance, will
present his credentials and issue a notice of inspection where required.
The establishment owner may complain about allowing an inspector to enter
or otherwise express his displeasure with EPA or the Federal government.
However, as long as he allows the inspector to enter, the entry is voluntary
and consensual unless the inspector is expressly told to leave the premises.
On the other hand, if the inspector has gained entry in a coercive manner
(either in a verbal or physical sense), the entry would not be consensual.
Consent must be given by the owner of the premises or the person in
charge of the premises at the time of the inspection. In the absence
of the owner, the inspector should make a good faith effort to determine
who is in charge of the establishment and present his credentials to
that person. Consent is generally needed only to inspect the non-public
portions of an establishment - i.e., any evidence that an inspector obtains
while in an area open to the public is admissible in an enforcement
proceeding.
(2) Withdrawal of Consent
The owner may withdraw his consent to the inspection at any time.
The inspection is valid to the extent to which it has progressed before
consent was withdrawn. Thus, observations by the inspector, including
samples and photographs obtained before consent was withdrawn, would be
admissible in any subsequent enforcement action. Withdrawal of consent
is tantamount to a refusal to allow entry and should be treated as
discussed in section II.B.3. below, unless the inspection had progressed
far enough to accomplish its purposes.
(3) When Entry is Refused
Barlow *s clearly establishes that the owner does have the right
to ask for a warrant under normal circumstances. Therefore, refusal
to allow entry for inspectional purposes will not lead to civil or criminal
penalties if .the refusal is based on the inspector's lack of a warrant
and one of the exemptions discussed in Part C does not apply. If the
owner were to allow the inspector to enter his establishment only in
response to a threat of enforcement liability, it is quite possible that
any evidence obtained in such an inspection would be inadmissible. An
inspector may, however, inform the owner who refuses entry that he intends
to seek a warrant to compel the inspection. In any event, when entry is
1
FIFRA inspections are arguably not subject to this aspect of Barlow's
See discussion, p. 5 and 6.
-------
APPENDIX A
(Page 6 of 11)
- 5 -
refused, the inspector should leave the premises immediately and telephone
the designated Regional Enforcement Attorney as soon as possible for
further instructions. The Regional Enforcement Attorney should contact
the U.S. Attorney's Office for the district in which the establishment
desired to be inspected is located and explain bo the appropriate Assistant
United States Attorney the need for a warrant to conduct the particular
inspection. The Regional Attorney should arrange for the United States
Attorney to meet with the inspector as soon as possible. The inspector
should bring a copy of the appropriate draft warrant and affidavits.
Samples are provided in the appendix to this document.
(4) Headquarters Notification
It is essential that the Regions keep Headquarters informed of
all refusals to allow entry. The Regional Attorney should inform the
appropriate Headquarters Enforcement Attorney of any refusals to enter
and should send a copy of all papers filed to Headquarters. It is
necessary for Headquarters to monitor refusals and Regional success in
obtaining warrants to evaluate the need for improved procedures and to
assess the impact of Barlow's on our compliance monitoring programs.
C. Areas Where a Right of Warrantless Entry Still Exists
1. Emergency Situations.
In an emergency/ where there is no time to get a warrant, a warrant-
less.''inspection is permissible. In Camara v. Municipal Court, 387 U.S. 523
(1967), the Supreme Court states that "nothing we say today is intended
to foreclose prompt inspections, even without a warrant, that the law has
traditionally upheld in emergency situations". Nothing stated in Barlow's
indicates any intention by the court to retreat from this position. The
Regions will always have to exercise considerable judgment concerning
whether to secure a warrant when dealing with an emergency situation.
However, if entry is refused during an emergency, the Agency would need
the assistance of the U.S. Marshal to gain entry, and a warrant could
probably be obtained during the time necessary to secure that Marshal's
assistance.
An emergency situation would include potential imminent hazard
situations, as well as, situations where there is potential for destruction
of evidence or where evidence of a suspected violation may disappear during
the time that a warrant is being obtained.
(2) FIFRA Inspections.
There are some grounds for interpreting Barlow's as not being
applicable to FIFRA inspections. The Barlow's restrictions do not apply
to areas that have been subject to a long standing and pervasive history
-------
APPENDIX A
(Page 7 of 11)
- 6 -
of government regulation. An Agency administrative law judge held recently
that even after the Barlow's decision, refusal to allow a warrantless
inspection of a FIFRA regulated establishment properly subjected the
owner to civil penalty. N. Jonas s Co., Inc./ I.P. & R Docket No. III-121C
(July 21, 1978). For the present, however, FIFRA inspections should be
conducted under the same requirements applicable to other enforcement
programs.
(3) "Open Fields" and "In Plain View" situations.
Observation by inspectors of things that are in plain viev, (jL.ei.,
of things that a member of the public could be in a position to observe) does
not require a warrant. Thus, an inspector's observations from the public
area of a plant or even from certain private property not closed to
the public are admissible. Observations made even before presentation of
credentials while on private property which is not normally closed to the
public are admissible.
D. Securing a Warrant
There are several general rules for securing warrants. Three
documents have to be drafted: (a) an application for a warrant, (b) an
accompanying affidavit, and (c) the warrant itself. Each document should be
captioned with the District Court of jurisdiction, the title of the action,
and the title of the particular document.
The application for a warrant should generally identify the statutes
and regulations under which the Agency is seeking the warrant, and should
clearly identify the site or establishment desired to be inspected
(including, if possible, the owner and/or operator of the site).
The application can be a one or two page document if all of the factual
background for seeking the warrant is stated in the affidavit, and the
application so states. The application should be signed by the U.S.
Attorney or by his Assistant U.S. Attorney.
The affidavits in support of the warrant application are crucial
documents. Each affidavit should consist of consecutively numbered para-
graphs, which describe all of the facts that support warrant issuance. If
the warrant is sought in the absence of probable cause, it should recite
or incorporate the neutral administrative scheme which is the basis for
inspecting the particular establishment. Each affidavit should be signed
by someone with personal kncwlege of all the facts stated. In cases where
entry has been denied, this person would most likely be the inspector
who was denied entry. Note that an affidavit is a sworn statement that
must either by notarized or personally sworn to before the magistrate.
-------
APPENDIX A
(Page 8 of 11)
- 7 -
The warrant is a direction to an appropriate official (an EPA
inspector, U.S. Marshal or other Federal officer) to enter a
specifically described location and perform specifically described
inspection functions. Since the inspection is limited by the terms of
the warrant, it is important to specify to the broadest extent possible
the areas that are intended to be inspected, any records to be inspec-
ted, any samples to be taken, any articles to be seized, etc. While
a broad warrant may be permissible in civil administrative inspections,
a vague or overly broad warrant will probably not be signed by the
magistrate and may prove susceptible to constitutional challenge
The draft warrant should be ready for the magistrate's signature at the
time of submission via a motion to quash and suppress evidence in
Federal District court. Once the magistrate signs the draft warrant, it
is an enforceable document. Either following the magistrate's signature
or on a separate page, the draft warrant should contain a "return of
service" or "certificate of service". This portion of the warrant should
indicate upon whom the warrant was personally served and should be signed
and dated by the inspector. 'As they are developed, more specific warrant-
issuance documents will be drafted and submitted to the Regions.
E. Standards or Bases for the Issuance of Administrative Warrants.
The Barlow's decision establishes three standards or bases for the
issuance of administrative warrants. Accordingly, warrants may be obtained
upon a showing: 1) of traditional criminal probable cause, 2) of civil
probable cause, or 3) that the establishment was selected for inspection
pursuant to a neutral administrative inspection scheme.
1. Civil specific probable cause warrant.
Where there is some specific probable cause for issuance of a warrant
such as an employee complaint or competitor's tip, the inspector should be
prepared to describe to the U.S. Attorney in detail the basis for this
probable cause.
The basis for probable cause will be stated in the affidavit in
support of the warrant. This warrant should be used when the suspected
violation is one that would result in a civil penalty or other civil
action.
2. Civil probable cause based on a neutral administrative
inspection scheme.
Where there is no specific reason to think that a violation has been
committed, a warrant may still be issued if the Agency can show that the
establishment is being inspected pursuant to a neutral administrative
scheme. As the Supreme Court stated in Barlow's:
-------
APPENDIX A
(Page 9 of 11)
- 8 -
"Probable cause in the criminal law sense is not required.
For purposes of an administrative search, such as this, probable
cause justifying the issuance of a warrant may be based not only
on specific evidence of an existing violation, but also on a
showing that "reasonable legislative or administrative standards
for conducting an ... inspection are satisfied with respect
to a particular [establishment]". A warrant showing that a speci-
fic business has been chosen for an OSHA search on the basis of a
general administrative plan for the enforcement of the act derived
fron neutral sources such as, for example, dispersion of employees
in various type of industries across a given area, and the desired
frequency of searches in any of the lesser divisions of the area,
would protect an employers Fourth Amendment rights."
Every program enforced by the Agency has such a scheme by which it prioritizes
and schedules its inspections. For example, a scheme under which every permit
holder in a given program is inspected on an annual basis is a satisfactory
neutral administrative scheme. Also, a scheme in which one out of every three
known PCS transformer repair shops is inspected on an annual basis is satis-
factory, as long as, neutral criteria such as random selection are used to
select the individual establishment to be inspected. Headquarters will prepare
and transmit to the Regions the particular neutral administrative scheme under
which each program's inspections are to be conducted. Inspections not based
on specific probable cause must be based on neutral administrative schemes for
a warrant to be issued. Examples of two neutral administrative schemes are
provided in the appendix. (Attachments II and III)
The Assistant U.S. Attorney will request the inspector to prepare and
sign an affidavit that states the facts as he knows them. The statement
should include the sequence of events culminating in the refusal to allow
entry and a recitation of either the specific probable cause or the
neutral administrative scheme which led to the particular establishment's
selection for inspection. The Assistant U.S. Attorney will then present
a request for an inspection warrant, a suggested warrant, and the inspector's
affidavit to a magistrate or Federal district court judge.
3. Criminal Warrants.
Where the purpose of the inspection is to gather evidence for a
criminal prosecution, the inspector and the Regional Attorney should request
that the U.S. Attorney seek a criminal warrant under Rule 41 of the Federal
Rules of Criminal Procedure. This requires a specific showing of probable
cause to believe that evidence of a crime will be discovered. Agency policy
on the seeking of criminal warrants has not been affected by Barlow's. The
2
The Barlow's decision states that imposing the warrant requirement
on OSHA would not invalidate warrantless search provisions in other
regulatory statutes since many such statutes already "envision resort
-------
-9-
APPENDIX A
(Page 10 of 11)
distinction between administrative inspections and criminal warrant
situations is discussed in Section II.A.2.
F. Inspecting with a Warrant
Once the warrant has been issued by the magistrate or judge", the
inspector may proceed to the establishment to ccmmence or continue the
inspection. Where there is a high probability that entry will be refused
even with a warrant or where there are threats of violence, the inspector
should be accompanied by a U.S. Marshal when he goes to serve the warrant
on the recalcitrant owner. The inspector should never himself attempt
to make any forceful entry of the establishment. If the owner refuses
entry to an inspector holding a warrant but not accompanied by a U.S.
Marshal, the inspector should leave the establishment and inform the
Assistant U.S. Attorney and the designated Regional Attorney. They will
take appropriate action such as seeking a citation for contempt. Where
the inspector is accompanied by a U.S. Marshal, the Marshal is principally
charged with executing the warrant. Thus, if a refusal or threat to
refuse occurs, the inspector should abide by the U.S. Marshal's decision
whether it is to leave, to seek forcible entry, or otherwise.
The inspector should conduct the inspection strictly in accordance
with the warrant. If sampling is authorized, the inspector must be sure
to carefully follow all procedures, including the presentation of receipts
for all samples taken. If records or other property are authorized to be
taken, the inspector must receipt the property taken and maintain an
inventory of anything taken from the premises. This inventory will be
examined by the magistrate to assure that the warrant's authority has
not been exceeded.
2 continued from page 8.
to Federal court enforcement when entry is refused". There is thus
some question as to whether the existence of a non-warrant Federal
court enforcement mechanism in a statute requires the use of that
mechanism rather than warrant issuance. We believe that the Barlow's
decision gives the agency the choice of whether to proceed through warrant
issuance or through an application for an injunction, since the decision
is largely based on the fact that a warrant procedure imposes virtually"
no burden on the inspecting agency. In addition, an agency could attempt
to secure a warrant prior to inspection on an ex parte basis, something
not available under normal injunction proceedings. Several of the acts
enforced by EPA have provisions allowing the Administrator to seek
injunctive relief to assure compliance with the various parts of a
particular statute. There may be instances where it would be more appro-
priate to seek injunctive relief to gain entry to a facility than to
attempt to secure a warrant for inspection, although at this point we
cannot think of any. However, since the warrant process will be far
more expeditious than the seeking of an injunction, any decision to
seek such an injunction for inspection purposes should be cleared through
appropriate Headquarters staff.
-------
- 10 -
APPENDIX A
(Page 11 of 11)
G. Returning the Warrant.
After the inspection has been completed, the warrant must be returned
to the magistrate. Whoever executes the warrant, (i.e., whoever performs
the inspection), must sign the return of service form indicating to whcm
the warrant was served and the date of service. He should then'-return
the executed warrant to the U.S. Attorney who will formally return it to
the issuing magistrate or judge. If anything has been physically taken
from the premises, such as records or samples, an inventory of such items
must be submitted to the court, and the inspector must be present to certify
that the inventory is accurate and conplete.
III. Conclusion
Except for requiring the Agency to formalize its neutral inspection
schemes, and for generally ending the Agency's authority for initiating
civil and/or criminal actions for refusal to allow warrantless inspections,
Barlow's should not interfere with EPA enforcement inspections.
Where there is doubt as to how to proceed in any entry case,
do not hesitate to call the respective Headquarters program contact for
assistance.
Marvin B. Durning
U. S. GOVERNMENT PRINTING OFFICE 1979 - 677-09VI101 Reg. 8
-------
APPENDIX B - SECTIONS OF THE
CLEAN WATER ACT RELEVANT TO
NPDES INSPECTORS
-------
APPENDIX B
(Page 1 of 14)
FEDERAL WATER POLLUTIONS CONTROL ACT,
AS AMENDED BY CLEAN WATER ACT OF 1977
(Commonly Referred to as Clean Water Act)
(33 U.S.C. 1251, etseq., PL 92-500; Enacted by Congress October 18, 1972, Overriding
the President's Veto of October 17, 1972, as amended by PL 93-207, December 28, 1973,
and PL 93-243, January 2, 1974; PL 93-592. January 2, 1975; PL 94-238, March 23, 1976;
PL 94-558, October 19, 1976; PL 95-217, December 28, 1977).
{Editor's note: The Federal Water Pollution Control Act Amendments of
197;. PL 92-500. replaced the previous language of the ^ct entirely, including
the Water Quality Ac of 1965. tne Clean Water Restoration Act of 1966. and
-ne Water Qualify Improvement Act of 1970. all of which had been amend-
ments of the Federal Water Pollution Control Act first passed in 1956. The
I9T> amendments. PL 95-217, further amended PL 92-500.]
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled,
TITLE I—RESEARCH AND RELATED
PROGRAMS
DECLARATION OF GOALS .AND POLICY
Sec. 101. (a) The objective of this Act is to restore
and maintain the chemical, physical, and biological
integrity of the Nation's waters. In order to achieve this
objective it is hereby declared that, consistent with the
provisions of this Act.—
(I) it is the national goal that tTie discharge of pollu-
tants into the navigable waters be eliminated by 1985;
(2) it is the national goal that wherever attainable, an
interim goal of water quality which provides for the pro-
tection and propagation of fish, shellfish, and wildlife
and provides for recreation in and on the water be
achieved by July 1, 1983;
(3) it is the national policy that the discharge of toxic
pollutants in toxic amounts be prohibited;
(4) it is the national policy that Federal financial
assistance be provided to construct publicly owned
waste treatment works;
(5) it is the national policy that areawide waste treat-
pent management planning processes be developed and
implemented to assure adequate control of sources of
pollutants in each State; and
(6) it is the national policy that a major research and
demonstration effon be made to develop technology
lecessary to eliminate the discharge of pollutants into
he navigable waters, waters of the contiguous zone,
ind the oceans.
Co) It is the policy of the Congress to recognize, pre-
;er\e, and protect the primary responsibilities and rights
jf States to prevent, reduce, and eliminate pollution, to
jlan the development and use (including restoration,
^reservation, and enhancement) of land and water
esources, and to consult with the Administrator in the
r\srcise of his authority under this Act. It is the polic\
of Congress that the States manage the construction
grant program under this Act and implement the permit
programs under sections 402 and 404 of this Act. It is
further the policy of the Congress to suppon and aid re-
search relating to the prevention, reduction, and elimi-
nation of pollution, and to provide Federal technical
services and financial aid to State and interstate agencies
and municipalities in connection with the prevention,
reduction, and elimination of pollution.
(c) It is further the policy of Congress that the Presi-
dent, acting through the Secretary of State and such na-
tional and international organizations as he determines
appropriate, shall take such action as may beYiecessary
to insure that to the fullest extent possible all foreign
countries shall take meaningful action for the preven-
tion, reduction, and elimination of pollution in their
waters and in international \\aters and for the achieve-
ment of goals regarding the elimination of discharge of
pollutants and the improvement of water quality to at
least the same extent as the United States does under its
laws.
(d) Except as otherwise expressly provided in this
Act, the Administrator of the Environmental Protection
Agency (hereinafter in this Act called "Administraior")
shall administer this Act.
(e) Public participation in the development, revision,
and enforcement of any regulation, standard, effluent
limitation, plan, or program established by the Ad-
ministrator or any State under this Act shall be provided
for, encouraged, and assisted by the Administrator and
the States. The Administraior, in cooperation with the
Slates, shall develop and publish regulations specifying
minimum guidelines for public participation in such
processes.
(f) It is the national policy that to the maximum ex-
tent possible the procedures utilized for implementing
this^Act shall encourage the drastic minimization of
paperwork and interagency decision procedures, and
the best use of available manpower and funds, so as to
prevent needless duplication and unnecessary delays at
all levels of government.
(g) It is the policy of Congress that the authority of
each State to allocate quantities of water v\ithm its
jurisdiction shall not be '>uperseded, abrogated or other-
wise impaired b> this Act. It is the further policy of
Congress that nothing in this Act shall be construed to
5-19-73
PubKhtfJ !>/ rUf LJLKI.AU Ol" NVTIONAL M I 4.IKS INC.. WASHINGTON' DC 20037
-------
APPENDIX B
(Page 2 of 14)
such publicly owned treatment works may be revised by
the ow ner or operator of such works to reflect the re-
mo\al of such toxic pollutant by such works."
(2) The Administrator shall, from time to time, as
control technology, processes, operating methods, or
other alternative change, revise such standards follow-
ing the procedure established by this subsection for
promulgation of such standards.
(3) When proposing or promulgating any pretreat-
rrent standard under this section, the Administrator
shall designate the category or categories of sources to
which such standard shall apply.
(4) Nothing In this subsection shall affect any pre-
treatment requirement established by any State or local
law not in conflict with any pretreatment standard
established under this subsection.
(c) In order to insure that any source introducing pol-
lutants into a publicly owned treatment works, which
source would be a new source subject to section 306 if it
were to discharge pollutants, will not cause a violation
of the effluent limitations established for any such treat-
ment works, the Administrator shall promulgate pre-
ireatment standards for the category of such sources
simultaneously with the promulgation of standards of
performance under section 306 for the equivalent cate-
gory of new sources. Such pretreatment standards shall
prevent the discharge of any pollutant into such treat-
ment works, which pollutant may interfere with, pass
through, or otherwise be incompatible with such works.
(d) After the effective date of any effluent standard
or prohibition or pretreatment standard promulgated
under this section, it shall be unlawful for any owner or
operator of any source to operate any source in viola-
tion of any such effluent standard or prohibition or pre-
treatment standard.
INSPECTIONS, MONITORING AND ENTRY
Sec. 308. (a) Whenever required to carry out the ob-
jective of this Act, including but not limited to (1) de-
veloping or assisting in the development of any effluent
limitation, or other limitation, prohibition, or effluent
standard, pretreatment standard, or standard of per-
formance under this Act; (2) determining whether any
person is in violation of any such effluent limitation, or
other limitation, prohibition or effluent standard, pre-
treatment standard, or standard of performance; (3)
any requirement established under this section; or (4)
carrying out sections 305, 311, 402, 404 (relating to
State permit programs), and 504 of this Act—
(A) the Administrator shall require the owner or
operator of any point source to (i) establish and main-
tain such records, (ii) make such reports, (iii) install,
use, and maintain such monitoring equipment or
methods (including where appropriate, biological moni-
toring methods), (iv) sample such effluents (in accor-
dance with such methods, at such locations, at such
intervals, and in such manner as the Administrator shall
prescribe), and (v) provide such other information as he
mav, reasonably require; and
(B) the Administrator or his authorized represen'
live, upon presentation of his credentials—
(i) shall have a right of entry to, upon, or througn
any premises in which an effluent source is located or in
which any records required to be maintained under
clause (A) of this subsection are located, and
(ii) may at reasonable times have access to and copy
any records, inspect any monitoring equipment or
metnod required under clause (A), and sample any ef-
fluents which the owner or operator of such source is re-
quired to sample under such clause.
(b) Any records, reports, or information obtained
under this section (1) shall, in the case of effluent data,
be related to any applicable effluent limitations, toxic,
pretreatment, or new source performance standards,
and (2) shall be available to the public, except that upon
a showing satisfactory to the Administrator by any per-
son that records, reports, or information, or particular
pan thereof (other than effluent data), to which the Ad-
ministrator has access under this section, if made public
would divulge methods or processes entitled to protec-
tion as trade secrets of such person, the Administrator
shall consider such record, report, or information, or
particular portion thereof confidential in accordance
with the purposes of section 1905 of title IS of the
United States Code, except that such record, report, or
information may be disclosed to other officers, employ-
ees, or authorized representatives of the United State*
concerned with carrying out this Act or when relevant
any proceeding under this Act.
(c) Each State may develop and submit to the Ad-
ministrator procedures under State law for inspection,
monitoring, and entry with respect to point sources lo-
cated in such State. If the Administrator finds that the
procedures and the law of any State relating to inspec-
tion, monitoring, and entry are applicable to at least the
same extent as those required by this section, such State
is authorized to apply and enforce its procedures for in-
spection, monitoring, and entry with respect to point
sources located in such State (except with respect to
point sources owned or operated by the United States).
FEDERAL ENFORCEMENT
Sec. 309. (a) (1) Whenever, on the basis of any in-
formation available to him, the Administrator finds
that any person is in violation of any condition or
limitation which implements section 301, 302, 306, 307,
30S, 318, or 405 of this Act in a permit issued by a State
under an approved permit program under section 402 or
404vof this Act, he shall proceed under his authority in
paragraph (3) of this subsection or he shall notify the
person in alleged violation and such State of such find-
ing. If be>ond the thirtieth day after the Administra-
tor's notification the State has not commenced ap-
propriate -enforcement action, the Administrator shall
issue an order requiring such person to comply w'
such condition or limitation or shall bring a civil act
in accordance w ith subsection (b) of tr»s section.
(2) Whenever, on the the basis of information sv
1
2-10-73
. 1978b/ Tnt 3 jieau e"-'3-c-i' -' .
C313 9211-79 SOO JO
-------
APPENDIX B
(Page 3 of 14)
April 3, 1970, no certification shall be required under
this subsection for a license or permit issued after April
3, 1970. to operate such facility, except that any such
license or permit issued without certification shall
terminate April 3,1973, unless prior to such termination
date the person having such license or permit submits to
. the Federal agency which issued such license or permit a
certification and otherwise meets the requirements of
this section.
(b) Nothing in this section shall be construed to limit
the authority of any department or agency pursuant to
any other provision of law to require compliance with
any applicable-water quality requirements. The Ad-
ministrator shall, upon the request of any Federal de-
partment or agency, or State or interstate agency, or
applicant, provide, for the purpose of this section, any
relevant information on applicable effluent limitations,
or other limitations, standards, regulations or require-
ments, or water quality criteria, and shall, when re-
quested by any such department or agency or State or
interstate agency, or applicant, comment on any
methods to comply \vith such limitations, standards,
regulations, requirements, or criteria.
(c) In order to implement the provisions of this sec-
tion, the Secretary of the Army, acting through the
Chief of Engineers, is authorized, if he deems it to be in
the public interest, to permit the use of spoil disposal
areas under his jurisdiction by Federal licensees or per-
mittees, and to make an appropriate charge for such
use. Moneys received from such licensees or permittees
shall be deposited in the Treasury as miscellaneous re-
ceipts.
(d) Any certification provided under this section
shall set forth any effluent limitations and other limita-
tions, and monitoring requirements necessary to assure
that any applicant for a Federal license or permit will
comply with any applicable effluent limitations and
other limitations, under section 301 or 302 of this Act,
standard of performance under section 306 of this Act,
or prohibition, effluent standard, or pretreatment stan-
dard under section 307 of this Act, and with any other
appropriate requirement of State law set forth in such
certification, and shall become a condition on any Fed-
eral license or permit subject to the provisions of this
section.
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM
Sec. 402. (a) (1) Except as provided in sections 318
and 404 of this Act, the Administrator may, after op-
portunity for public hearing, issue a permit for the dis-
charge of any pollutant, or combination of pollutants,
notwithstanding section 301 (a), upon condition that
such discharge will meet either all applicable require-
ments under sections 301, 302, 306, 307, 30S, and 403 of
this Act, or prior to the taking of necessary implement-
ing actions relating to all such requirements, such condi-
tions as the Administrator determines are necessary to
:arry out the provisions of this Act.
(2) The Administrator shall prescribe conditions for
such permits to assure compliance with the requirements
of paragraph (1) of this subsection, including conditions
on data and information collection, reporting, 2nd such
other requirements as he deems appropriate.
(3) The permit program of the Administrator under
paragraph (1) of this subsection, and permits issued
thereunder, shall be subject to the same terms, condi-
tions, and requirements as apply to a State permit pro-
gram and permits issued thereunder under subsection
(b) of this section.
(4) All permits for discharges into the navigable
waters issued pursuant to section 13 of the Act of March
3, 1899, shall be deemed to be permits issued under this
title, and permits issued under this title shall be deemed
to be permits issued under section 13 of the Act of
March 3, 1899, and shall continue in force and effect for
their term unless revoked, modified, or suspended in ac-
cordance_with the provisions of this Act.
(5) No permit for a discharge into the navigable
waters shall be issued under section 13 of the Act of
March 3, 1899, after the date of enactment of this title.
Each application for a permit under section 13 of the
Act of March 3, 1S99, pending on the dale of enactment
of this Act shall be deemed to be an application for a
permit under this section. The Admims;ra:or shall au-
thorize a State, which he deierrnir.es has the capability
of administering a permit program which will earn out
the objective of this Act, to iss-je permits for discharges
into the navigable waters within the jurisdiction of such
State The Administrator may exercise the authority
granted him b> the preceding sentence only during the
period w hich begins on the da;e of enactment of this Act
and ends either on the ninetie'h da> after the date of the
firs: promulgation of guidelines required b\ section
304 (h) (2) of this Act, or the date of approval by the
Administrator of a permit program for_such State under
subsection (b) of this section, whichever date first oc-
curs", and no such authorization to a State shall extend
be\ond the last day of such period. Each such permit
shall bs subject to such conditions as '.he Administrator
determines are necessary to carry out the provisions of
this Act. No such permit shall issue if the Administrator
objects to such issuance.
(b) At any time after the promulgation of the guide-
lines required by subsection (h) (2) of section 304 of this
Act, the Governor of each State desiring to administer
its own permit program for discharges into navigable
waters within its jurisdiction may submit to the Admin-
istrator a full and complete description of the program
it proposes to establish and administer under State law
or under an interstate compact. In addition, such State
shall submit a statement from the atrorne> general (or
the attorney for those State water pollution control
agencies which have independent legal counsel), or from
the chief legal officer in the case of an interstate agencj.
that the laws of such State, or the interstate compact,
as the case may be, provide adequate authority to carry
out the described program. The Adnrnisiraior shall ap-
2-1073
lS785jr Tr-«Sji-»jC"
0013 j2f'l~ SC-
3 C-« flairs I-C
71
-------
APPENDIX B
(Page 4 of 14)
monitoring device or method required to be maintained
under this Act, shall upon conviction, be punished b> a
fine of not more than 510,000, or by imprisonment for
not more than six months, or by both.
(3) For the purposes of this subsection, the term
"person" shall mean, in addition to the definition con-
tained in section 502(5) of this Act, any responsible
corporate officer.
(d) Any person who violates section 301, 302, 306,
307, 308, 318, or 405 of this Act, or any permit con-
dition 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 (a) of this section, shall be subject to a civil
penalty not to exceed $10,000 per day of such violation.
(e) Whenever a municipality is a party to a civil
action brought by the United States under this section,
the State in which such municipality is located shall be
joined as a party. Such State shall be liable for payment
of any judgment, or any expenses incurred as a result of
complying with any judgment, entered against the
municipality in such action to the extent that the laws of
that State prevent the municipality from raising
revenues needed to comply with such judgment.
(0 Whenever, on the basis of an information avail-
able 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 opera-
tor of such treatment works and the Stale of such viola-
tion. 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 Ad-
ministrator may commence a civil action for appropri-
ate 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 Ad-
ministrator 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 compli-
ance with this Act. 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
Act.
INTERNATIONAL POLLUTION ABATEMENT
Sec. 310. (a) Whenever the Administrator, upon
receipts of reports, surveys, or studies from any duly
constituted international agency, has reason to believe
that pollution is occurring which endangers the hec'
or \\elfare of persons in a foreign country, and
Secretary of State requests him to abate such" pollution.
he shall give formal notification thereof to the State
water pollution control agency of the State or States in
which such discharge or discharges originate and to the
appropriate interstate agency, if any. He shall also
promptly call such a hearing, if he belie\es that such
pollution is occurring in sufficient quantity to warrant
such action, and if such foreign country has gi^en che
United States essentially the same rights with respect to
the prevention and control of pollution occurring in that
country as is given that country by this subsection. The
Administrator, through the Secretary of State, shall in-
vite the foreign country which may be adversely affected
by the pollution to attend and participate in the hearing,
and the representative of such country shall, for the pur-
pose of the hearing and any further proceeding resulting
from such hearing, have all the rights of a State water
pollution control agency. Nothing in this subsection
shall be construed to modify, amend, repeal, or other-
wise affect the provisions of the 1909 Boundary Waters
Treaty between Canada and the United States or the
Water Utilization Treaty of 1944 between Mexico and
the United States (59 Stat. 1219), relative to the control
and abatement of pollution in waters covered by those
treaties.
(b) The calling of a hearing under this section sh-"
not be construed by the courts, the Administrator,
any person as limiting, modif>ing, or otherwise affei..
ing the functions and responsibilities of the Administra-
tor under this section to establish and enforce water
quality requirements under this Act.
(c) The Administrator shall publish in the Federal
Register a notice of a public hearing before a hearing
board of five or more persons appointed by the Ad-
ministrator. A majority of the members of the board
and the chairman who shall be designated by the Ad-
ministrator shall not be officers or employees of Fed-
eral, State, or local governments. On the basis of the
evidence presented at such hearing, the board shall
within sixty days after completion of the hearing make
findings of fact as to whether or not such pollution is
occurring and shall thereupon by decision, incorporat-
ing its findings therein, make such recommendations to
abate the pollution as may be appropriate and shall
transmit such decision and the record of the hearings to
the Administrator. All such decisions shall be public.
Upon receipt of such decision, the Administrator shall
promptly implement the board's decision in accordance
with the provisions of this Act.
(d) In connection with any hearing called under this
subsection, the board is authorized to require any per-
son whose alleged activities result in discharges causing
or contributing to pollution to file with it in such for-
as it may prescribe, a report based on existing da
furnishing such information as may reasonably be rv.
quired as to the character, kind, and quantity of such
2-10-78
i972D/TpeS--?ai.c'.':31ioijiAMai'S Ine
'.Tj 92::-7= 5CD50
57
-------
APPENDIX B
(Page 5 of 14)
.lions and conditions which such permit \vould include if
it were issued by the Administrator.
(3) The Administrator ma>, as to any permit applica-
;ion. waive paragraph (2) of this subsection.
(-) In any case where, after the date of enactment of
this paragraph, the Administrator, pursuant to para-
graph (2) of this subsection, objects to the issuance of a
permit, or request of the State, a public hearing shall be
held by the Administrator on such objection. If the
S:2;e coes not rasubmit such permit revised to meet such
ocjeciion within 30 days after completion of the hear-
ing, or, if no hearing is requested within 90 days after
the date of such objection, the Administrator may issue
the permit pursuant to subsection (a) of this section for
such source in accordance with the guidelines and
requirements of this Act.
(e) In accordance with guidelines promulgated pur-
suant to subsection (h) (2) of section 304 of this Act, the
Administrator is authorized to waive the requirements
of subsection (d) of this section at the time he approves
a program pursuant to subsection (b) of this section for
any category (including any class, type, or size within
such category) of point sources within the State submit-
ting such program.
(0 The Administrator shall promulgate regulations
establishing categories of point sources which he deter-
mines shall not be subject to the requirements of subsec-
tion (d) of this section in any State with a program ap-
pro1, sd pursuant to subsection (b) of this section. The
Administrator may distinguish among classes, tjpes,
and sizes within any category of point sources.
(g) Any permit issued under this section for the dis-
charge of pollutantr'into the navigable waters from a
vessel or other floating craft shall be subject to any ap-
plicable regulations promulgated by the Secretary of the
Department in which the Coast Guard is operating,
establishing specifications for safe transportation,
handling, carriage, storage, and stowage of pollutants.
(h) In the event any condition of a permit for dis-
charges from a treatment works (as defined in section
212 of this Act) which is publicly owned is violated, a
State with a program approved under subsection (b) of
this section or the Administrator, where no State pro-
gram is approved or where the Administrator deter-
mines pursuant to section 309(a) of this Act that a State
with an approved program has not commenced appro-
priate enforcement action with respect to such permit,
may proceed in a court of competent jurisdiction to
restrict or prohibit the introduction of any pollutant
into such treatment works by a source not utilizing such
treatment works prior to the finding that such condition
'was violated.
, (i) Nothing in this section shall be construed to limit
(the authority of the Administrator to take action pur-
jsuant to section 309 of this Act.
i (j) A copy-of each permit application and each per-
rnii issued under this section shall be available to the
publi:. Such permit application or permit, or portion
ihereof. shall further be available on request for the
rpose of reproduction
(k) Compliance with a permit issued pursuant to this
section shall be deemed compliance, for purposes of sec-
tions 309 and 505, with sections 301, 302, 306. 307. and
•J03, e\ceot an;, standard imposed under section ?07 for
a toxic pollutant injurious to human health. Until
December 31, 1974, in any case where a permit for dis-
charge has been applied for pursuant to this section, but
final administrative disposition of such application has
no1, besn made, such discharge shall not be a violation
of (1) section 301, 306. ana 402. of this Act, cr (2)
section 13 of the Ac: of March 3, 1899, unless the Ad-
ministrator or other plaintiff proves that final admin-
istrative disposition of such application has not been
made because of the failure of the applicant to furnish
information reasonably required or requested in order
to process the application. For the ISO-day period
beginning on the date of enactment of the Federal
Water Pollution Control Act .Amendments of 1972, in
the case of any point source discharging any pollutant
or combination of pollutants immediately prior to such
date of enactment which source is not subject to section
13 of the Act of March 3, 1S99, the discharge b> such
source shaJl not be a violation of this Act if such a
source aoplies for a permit for discharge pursuant to
this section within such 180-day period.
fl) The Administrator shall not require a permit
under this section, for discharge composed entirely of
return flo".s from irrigated agriculture, nor shall the Ad-
mir.is;raior directly or indirectly, require am State to
require such a permit.
[Editor's note: SEC. 54(c) (2) of the Clean Water
Act of 19~7says:
"Any S'ate permit program approved under section
402 of the Federal Water Pollution Control Act before
the dale of enactment of the Clean Water Act of 1977,
which requires modification to conform to the amend-
ment madsbv paragraph (1) of this subsection, shall not
be required to be modified before the end of the one
>ear period which begins on the date of enactment of
the Clean Water Act of 1977 unless in order to make the
required modification a State must amend or enact a
law in which case such modification shall not be
required for such State before the end of the two >ear
period which begins on such date of enactment."]
OCEAN DISCHARGE CRITERIA
Sec. 403. (a) No permit under section 402 of this Act
for a discharge into the territorial sea, the waters of the
contiguous zone, or the oceans shall be issued, after
prcr>njlga;ion of guidelines established under subsection
(c) of this section, except in compliance with such Guide-
lines. Prior to the promulgation of such guidelines, a
permit ma> be issued under such section 402 if the Ad-
ministrator determines it to be in the public interest.
(b) The requirements of subsection (d) of section 402
of this Act may not be waived in the case of permits for
discharges into the territorial sea.
(c) (1) The Administrator shall, within one hundred
and eishiv days after enacimen: of this Act (and from
CGS/-I--I I i97eoyTr.s9jr»4uc".*-s-
0:13 c-2!-. :2 s::;:
-------
APPENDIX B
(Page 6 of 14)
merits of subsections (b) (1) (A) and (C) of ihis section
and shall contain such other terms and conditions, in-
cludme pretreatmeni and interim effluent limitations
and water conservation requirements applicable to that
point source, as the Administrator de:ermines are
necessary to carry out the provisions of this Act.
(B) No time modification granted by the Adminis-
trator (or if appropriate the State) pursuant to para-
graph (2) (A) of this subsection shall extend beyond the
earliest date practicable for compliance or beyond the
d.ite 0:' any extension granted to the appropriate pub-
licly ownsd treatment works pursuant to paragraph (1)
of this subsection, but in no event shall it extend beyond
July 1, 1983; and no such time modification shall be
granted unless (i) the publicly owned treatment works
\vill be in operation and available to the point source be-
fore Jiily 1, 1983, and will meet the requirements to sub-
sections (b) (1) (B) and (C) of this section after receiving
the discharge from that point source; and (a) the point
source and the publicly owned treatment works have en-
tered into an enforceable contract requiring the point
source to discharge into the publicly owned treatment
works, the owner or operator of such point source to
pay the costs required under section 204 of this Act, and
the publicly owned treatment works to accept the dis-
charge from the point source; and (iii) the permit for
such point source requires point source to meet all re-
quirements under section 307 (a) and (b) during the
period of such time modification.
0) (1) Any application filed under this section for a
modification of the provisions of—
(A) subsection (b) (1) (B) under subsection (h) of this
section shall be filed not later than 270 da>s after the
dace of enactment of the Clean Water Act of 19/7;
(B) subsection (b) (2) (A) as it applies to po'lutants
identified in subsection (b) (2) (F) shall be filed not later
than 270 days after the date of promulgation of an ap-
plicable ef fluent guideline under section 304 or not later
than 270 days after the date of enactment of the Clean
Water Act of 1977, whichever is later.
(2) Any application for a modification filed under
subsection (g) of this section shall not operate to stay
any requirement under this Act, unless in the judgment
of the Administrator such a stay or the modification
sought will not result in the discharge of pollutants in
quantities which may reasonably be anticipated to pose
an unacceptable risk to human health or the environ-
ment because of bioaccumulation, persistency in the en-
vironment, acute toxicity, chronic toxicity (including
carcinogenicity, mutagenicity or teratogeru'city), or
svnergistic propensities, and that there is a substantial
likelihood that the applicant will succeed on the merits
of such application. In the case of an application filed
under subsection (g) of this section, the Administrator
may condition any stay granted under this paragraph on
requiring the filing of a bond or other appropriate
security to assure timely compliance with the require-
ments from which a modification is sought.
(k) In the case ot any facility subject to a permit un-
der section 402 which proposes to comply with the re '
quirements of subsection (b) (2) (A) of this section by i
placing existing production capacity with an innovati^
production process which will result in an effluent re-
duction significantly greater than that required by the
limitation otherwise applicable to such facility and
moves toward the national goal of eliminating the dis-
charge of all pollutants, or with the installation of an in-
novative control technique that has a substantial likeli-
hodd for enabling the facility to comply with ths aooli-
cable effluent limitation by achieving a significantly
greater effluent reduction than that required by the ap-
plicable effluent limitation and moves toward the na-
tional goal of eliminating the discharge of all pollutants,
or by achieving the required reduction with an inno-
vative system that has the potential for significantly
lower costs than the system which have been determined
by the Administrator to be economically achievable, the
Administrator (or the State with an approved program
under section ^02, in consultation with the Administra-
tor) may establish a date for compliance under subsec-
tion (b) (2) (A) of this section no later than July 1, 1987,
if it is also determined that such innovative system has
the potential for industrywide application.
(1) The Administrator may not modify any require-
ment of this section as it applies to any specific pollutant
which is on the toxic pollutant list under section 307(a)
(l)of this Act.
WATER QUALITY RELATED EFFLUENT
LIMITATIONS
Sec. 302. (a) Whenever, in the judgment of the Ad-
ministrator discharges of pollutants from a point source
or group of point sources, with the application of efflu-
ent limitations required under section 301(b) (2) of this
Act, would interfere with the attainment or mainte-
nance of that water quality in a specific portion of the
navigable waters which shall assure protection of public
water supplies, agricultural and industrial uses, and the
protection and propagation of a balanced population of
shellfish, fish and wildlife, and allow recreational acti-
vities in and on the water, effluent limitations (including
alternative effluent control strategies) for such point
source or sources shall be established which can reason-
ably be expected to contribute to the attainment or
maintenance of such water quality.
(b) (1) Prior to establishment of any effluent limita-
tions pursuant to subsection (a) of this section, the
Administrator shall issue notice of intent to establish
such limitation and within ninety days of such notice
hold a public hearing to determine the relationship of
the economic and social costs of achieving any such lim-
itation or limitations, including any economic or social
dislocation in the affected community or communities,
to the social and economic benefits to be obtained
(including the attainment of the objective of this Acf*
and to determine whether or not such effluent limit
lions can be implemented with available technology (_
other alternative control strategies.
-------
APPENDIX B
(Page 7 of 14)
title, including, but not limited to, projects eligible for
reimbursement under section 206 of this title.
(b) No guarantee, or commitment to make a guaran-
tee, may be made pursuant to this section—
(I) unless the Administrator certifies that the issuing
body is unable to obtain on reasonable terms sufficient
credit to finance its actual needs without such guaran-
tee; and
(2) unless the Administrator determines that there is
a reasonable assurance of repayment of the loan, obli-
gation, or participation therein.
A determination of whether financing is available at
reasonable rates shall be made by the Secretary of the
Treasury with relationship to the current average yield
on outstanding marketable obligations of municipalities
of comparable maturity.
(c) The Administrator is authorized to charge reason-
able fees for the investigation of an application for a
guarantee and for the issuance of a commitment to
make a guarantee.
(d) The Administrator, in determining whether there
is a reasonable assurance of repayment, may require a
commitment which would apply to such repayment.
Such commitment may include, but not be limited to,
(1) all or any portion of the funds retained by such
grantee under section 204(b) (3) of this act, and (2) any
funds received by such grantee from the amounts ap-
propriated under section 206 of this act.
PUBLIC INFORMATION
Sec. 241. The Administrator shall develop and oper-
ate within one year of the date of enactment of this sec-
tion, a continuing program of public information and
education on recycling and reuse of waste\vater (includ-
ing sludge), the use of land treatment, and methods for
the reduction of wastewater volume.
REQUIREMENTS FOR AMERICAN MATERIALS
Sec. 215. Notwithstanding any other provision of
law, no grant for which application is made after Febru-
ary 1, 1978, shall be made under this title for any treat-
ment works unless only such unmanufactured articles,
materials, and supplies as have been mined or produced
in the United States, and only such manufactured ar-
ticles, materials, and supplies as have been manufac-
tured in the United States, substantially all from arti-
cles, materials, or supplies mined, produced, or manu-
factured, as the case may be, in the United States will be
used in such treatment works. This section shall not
apply in any case where the Administrator determines,
based upon those factor the Administrator deems
relevant, including the available resources of the
agency, it to be inconsistent with the public interest
(including multilateral government procurement agree-
ments) or the cost to be unreasonable, or if articles,
materials, or supplies of the class or kind to be used or
the articles, material, or supplies from v.hich they are
manufactured are not mined, produced, or manufac-
tured, as the case may be, in the United Slates in suffi-
cient and reasonably a\ailable commercial quantities
and of a satisfactory quality.
DETERMINATION OF PRIORITY
Sec. 216. Notwithstanding any other provision of
this Act, the determination of the priority to be given
each category of projects for construction of publicly
o*ned treatment works within each Scaie shall be made
solely by that State, excspt that if the Administrator,
after a public hearing, determines that a specific project
will not result in compliance with the enforceable re-
quirements of this Act, such project shall be removed
from the State's priority list and such State shall submit
a revised priority list. These categories shall include, but.
not be limited to (A) secondary treatment, (B) more
stringent treatment, (C) infiltration-m-flow correction,
(D) major sewer system rehabilitation, (E) new collector
sewers and appurtenances, (F) new interceptors and ap-
purtenances, and (G) correction of combined sewer
o\erflows. Not less than 25 per centum of funds allo-
cated to a State in any fiscal \ ear under this title for con-
struction of publicly owned treatment works in such
State shall be obligated for those t\pes of projects re-
ferred to in clauses (D, (E), (F), and (G) of this section,
if such projects are on such State's priority list for that
>ear and are otherwise eligible for funding in that fiscal
year.
COST-EFFECTIVENESS GUIDELINES
Sec. 217. Any guidelines for cost-effectiveness anal-
ysis published by the Administrator under this title shall
provide for the identification and selection of cost cffec-
tne alternatives to comph with the objective and goals
of this Act and sections 201 (b), 201 (d), 201 (g) (2) (A),
and 301 (b) (2) (B) of this Act.
TITLE III—STANDARDS AND ENFORCEMENT
EFFLUENT LIMITATIONS
Sec. 301. (a) Except as in compliance with this sec-
tion and sections 302, 306, 307, 318, 402, and 404 of this
Act, the discharge of any pollutant by any person shall
be unlawful.
(b) In order to carry out the objective of this Act
there shall be achieved—
(\) (A) not later than July 1, 1977, effluent limita-
tions for point sources, other than publicly owned treat-
ment works, (i) which shall require the application of
the best practicable control technology currently avail-
able as defined by the Administrator pursuant to section
304 (b) of this Act, or (n) in the case of a discharge into
a publicly owned treatment works which meets the re-
quirements of subparagraph (B) of this paragraph,
which shall require compliance with an> applicable pre-
treatment requirements and an> requirements under sec-
tion 307 of this Act; and
2-10-73
I5«SO> The Bureau ol '• tnorjl Af'airs !-
C-3.3 021 ,/73'SC; 10
-------
APPENDIX B
(Page 8 of 14)
(B) for publicly o^ned treatment WO-'NS in existence
on Jui> 1, 1977, or approved pursuant to section 203 of
this Act prior to June 30. 1974 (for which construction
miiit be completed within four years of approval), efflu-
ent iimitaf.ons based upon secondary treatment as
defined b> the Administrator pursuant to section 304(d)
(l)of this Act; or,
(C) not later than July 1, 1977, any more stringent
limitation, including those necessary to meet water qual-
i'.y v.ar.darcij. treatment standards, or scnecule of com-
pliance, established pursuant to any State law or regula-
tions, (under authority preserved by section 510) or any
other Federal law or regulation, or required to imple-
ment any applicable water quality standard established
pursuant to this Act.
(2) (A) for pollutants identified in subparagraphs
(C), (D), and (F) of this paragraph, effluent limitations
for categories and classes of point sources, other than
publicly owned treatment works, which (i) shall require
application of the best available technology economic-
ally achievable for such category or class, which will re-
sult in reasonable further progress toward the national
goal of eliminating the discharge of all pollutants, as
determined in accordance with regulauons issued by the
Administrator pursuant to section 30-Kb) (2) of this Act,
v. hich such effluent limitations shall require the elimina-
tion of discharges of all pollutants if trie Administrator
finds, on the basis of information a'.ailable to him (in-
cluding information developed pursuant to section 315),
that such elimination is technologically and economic-
ally achievable for category or class of point sources as
determined in accordance with regulations issued by the
Administrator pursuant to section 30-(b) (2) of this Act
or (li) in the case of the introduction of a pollutant into
a publicly owned treatment works which meets the re-
quirements of subparagraph (b) of this paragraph, shall
require compliance with any applicable pretreatment re-
quirements and any other requirement under section 307
of this Act;
(B) not later than July 1, 1983, compliance by all
publicly owned treatment works with the requirements
set forth in section 201 (g) (2) (A) of this Act;
(C) not later than July 1, 1934, with respect to all
toxic pollutants referred to in table 1 of Committee
Print Number 95-30 of the Committee on Public Works
and Transportation of the House of Representatives
compliance with effluent limitations in accordance with
subparagraph (A) of this paragraph;
(D) for all toxic pollutants listed under paragraph (1)
of subsection (a) of section 307 of this Act w hich are not
referred to in subparagraph (C) of this paragraph com-
pliance with effluent limitation in accordance with sub-
paragraph (A) of this paragraph not later than three
> ears after the date such limitations are established;
(E) not later .than July 1, 193-1, effluent limitations
for categories and classes of point sources, other than
publicly owned treatment works, which in the case of
pollutants identified pursuant to section 304(a) (4) of
this Act shall require application of the best conven-
tional pollutant control technology as determined in ?
cordance with regulations issued by the Aclrmnistrai
pursuant to section 304(b) (4) of this Act; and
(F) for all pollutants (other than those subject to sub-
paragraphs (C), (D). or (E) of this paragraph) compli-
ance with effluent limitations in accordance with sub-
paragraph (A) of this paragraph not later than 3 years
after the date such limitations are established, or not
later than July 1, 1984, whichever is later, but in no case
later than July I. 1937.
(c) The Administrator may modify the requirements
of subsection (b) (2) (A) of this section with respect to
any point source for which a permit application is filed
after July 1, 1977, upon a showing by the owner or op-
erator of such point source satisfactory to the Adminis-
trator that such modified requirements (1) will represent
the maximum use of technology within the economic
capability of the owner or operator; and (2) will result in
reasonable further progress toward the elimination of
the discharge of pollutants.
(d) Any effluent limitation required by paragraph (2)
of subsection (b) of this section shall be reviewed at least
every five years and, if appropriate, revised pursuant to
the procedure established under such paragraph.
(e) Effluent limitations established pursuant to this
section or section 302 of this Act shall be applied to all
point sources of discharge of pollutants in accordance
with the provisions of this Act.
(0 Notwithstanding any other provisions of this ^
it shall be unlawful to discharge any radiological, chei
ical, or biological warfare agent or high-level radioac-
tive waste into the navigable waters".
(g) (1) The Administrator, with the concurrence of
the State, shall modify the requirements of subsection
(b) (2) (A) of this section w ith respect to the discharge of
any pollutant (other than pollutants identified pursuant
to section 30-i(a) (4) of this Act, toxic pollutants subject
to section 307 (a) of this Act, and the thermal com-
ponent of discharges from any point source upon a
showing by the owner or operator of such point source
satisfactory to the Administrator that—
(A) such modified requirements will result at a mini-
mum in compliance with the requirements of subsection
(b) (1) (A) or (C) of this section, whichever is applicable;
(B) such modified requirements will not result in any
additional requirements on any other point or nonpoint
source; and
(C) such modification will not interfere with the at-
tainment of maintenance of that water quality which
shall assure protection of public water supplies, and the
protection and propagation of a balanced population of
shellfish, fish, and wildlife, and allow recreational acti-
vities, in and on the water and such modification will
not result in the discharge of pollutants in quantities
which may reasonably be anticipated to pose an unac-
ceptable risk to human health or the environment be-
cause of bioaccumulation, persistency in the envir'
ment, acute to\icity, chronic toxicity (including carcii
genicity, mutagenicity or teratogenicit>), or s>nergistic
propensities.
I
Environment Reporter
0013 1211-73 S0050
-------
APPENDIX B
(Page 9 of 14)
(2) If an owner or operator of a point source applies
for a modification under this subsection with respect to
ihe discharge of any pollutant, such owner or operator
•;ha!l be eligible to apply for modification under subsec-
tion (c) of this section with respect to such pollutant
only during the same time-period as he is eligible 10 ap-
pl> for a modification under this subsection.
(h) The Administrator, with the consurrence of the
S:aie, rray issue a permit under section 402 which modi-
fies the requirements of subsection (b) (1) (3) of this sec-
lion with respect to the discharge of any pollutant in an
existing discharge from a publicly owned treatment
works into marine waters, if the applicant demonstrates
to the satisfaction of the Administrator that—
(1) there is an applicable water quality standard spe-
cific to the pollutant for which the modification is re-
quested, which has been identified under section 304(a)
(6) of this Act; "
(2) such modified requirements will not interfere with
the attainment or maintenance of that water quality
which assures protection of public water supplies and
protection and propagation of a balanced, indigenous
population of shellfish, fish and wildlife, and allows
recreational activities, in and on the water;
(3) the applicant has established a system for mon-
itoring the impact of such discharge on a representative
sample of aquatic biota, to the extent practicable;
(4) such modified requirements will not result in any
additional requirements on any other point or nonpoint
source;
(5) all applicable pretreatment requirements for
sources introducing waste into such treatment works
will be enforced;
(6) to the extent practicable, the applicant has estab-
lished a schedule of activities designed to eliminate the
entrance of toxic pollutants from nonindustrial sources
into such treatment works;
(7) there will be no new or substantially increased dis-
charges from the point source of the pollutant to which
the modification applies above that volume of discharge
specified in the permit;
(S) any funds- available to the owner of such treat-
ment works under title II of this Act will be used to
achieve the degree of effluent reduction required by sec-
tion 201 (b) and (g) (2) (A) or to carry out the require-
ments of this subsection.
For the purposes of this subsection the phrase "the
discharge of any pollutant into marine waters" refers to
a discharge into deep waters of the territorial sea or the
waters of the contiguous zone, or into saline estuarine
waters where there is strong tidal movement and other
hydrological and geological characteristics which the
Administrator determines necessary to allow compli-
ance with paragraph (2) of '.his subsection, and section
101 (a) (2) of this Act.
(i) (1) Where construction is required in order for a
planned or existing publicly owned treatment works to
achieve limitations under subsection (b) (!) (B) or (b){l)
(C) of this section, but (A) construction cannot be com-
pleted within the time required in such subsection, or
(B) the United States has failed to make financial assis-
tance under this Act available in time to achieve such
limitations by the time specified in such subsection, the
owner or operator of such treatment works may reques:
the Administrator (or if appropriate the State) to issue a
permit pursuant :o section 402 of this Act or to modif> a
permit issued pursuant to that section to extend such
time for compliance. Any such request shall be filed
with ;he Admir.istrator (or if aopropriate the Scats')
within ISO days after the date of enactment of ihis sub-
section. The AcL-nmistrator (or if appropriate the State)
may grant such request and issue or modify such a per-
mit, which shall contain a schedule of compliance for
the publicly ov.ned treatment works based on the
earliest date by which such financial assistance will be
available from the United States and construction can
be completed, but in no event later than July 1, 1983,
and shall contain such other terms and conditions, in-
cluding those necessary to carry out subsections (b)
through (g) of section 201 of this Act, section 307 of this
Act, and such interim effluent limitations applicable to
that treatment works as the Administrator determines
are necessary to carry out the provisions of this Act.
(2) (A) Where a point source (other than a publicK
owned treatment works) will not achieve the require-
ments of subsections (b) (1) (A) and (b) (1) (C) of this
section and—
(i) if a perm:: issued prior to July I, 1977, to such
point source is based upon a discharge into a pub!ic!>
owned ireatmer.: w orks; or
(li) if such point source (other than a publicly owned
treatment works) had before July 1, 1977, a contact
(enforceable against such point source) to discharge into
a pubhch owned treatment works; or
(iii) if either-n application made before July 1, 1977,
for a construc'.:on grant under this Act for a publicly
owned treatme-.t works, or engineering or architeci'jral
plans or working drawings made before July 1, 1977,
for a publicly owned treatment works, show that such
point source was to discharge into such publicly o»sned
treatment works, and such publicly owned treatment
works is preser.:ly unable to accept such discharge with-
out construction, and in the case of a discharge to an ex-
isting publicly owned treatment works, such treatnent
works has an e.\:ension pursuant to paragraph (1) of this
subsection, the owner or operator of such point source
may request the Administrator (or if appropriate the
State) to issue or modify such a permit pursuant to such
secnon 402 to extend such time for compliance. Any
sucn request shall be filed with the Administrator (or if
appropriate the State) within ISO days after the dsie of
enactment of this subsection or the filing of a request by
the appropriate publicly owned treatment works Lnder
paragraph (I) of this subsection, whichever is brer.
If the Admmis:rator (or if appropriate the State) finds
that the owner or operator of such point source has acted
in good faith, re may grant such request and iss'.e or
modify such a rermit, which shall contain a schecule of
compliance for the point source to achieve the require-
7-7-73
Ccc/'1!"1' "9"B S/ Tn*Bu'*ajolN3iicn*'i' « "s I"
0012 5211,/S S0050
-------
APPENDIX B
(Page 10 of 14)
such publicly owned treatment works may be revised by
the owner or operator of such works to reflect the re-
moval of such toxic pollutant by such works."
(2) The Administrator shall, from time to time, as
control technology, processes, operating methods, or
other alternative change, revise such standards follow-
ing the procedure established by this subsection for
promulgation of such standards.
(3) When proposing or promulgating any pretreat-
me.it standard under this section, the Administrator
shall designate the category or categories of sources to
which such standard shall apply.
(4) Nothing in this subsection shall affect any pre-
treatment requirement established by any State or local
law not in conflict with any pretreatment standard
established under this subsection.
(c) In order to insure that any source introducing pol-
lutants into a publicly owned treatment works, which
source would be a new source subject to section 306 if it
were to discharge pollutants, will not cause a violation
of the effluent limitations established for any such treat-
ment works, the Administrator shall promulgate pre-
treatment standards for the category of such sources
simultaneously with the promulgation of standards of
performance under section 306 for the equivalent cate-
gory of new sources. Such pretreatment standards shall
pre\em the discharge of any pollutant into such treat-
ment works, which pollutant may interfere with, pass
through, or otherwise be incompatible with such works.
(d) After the effective date of any effluent standard
or prohibition or pretreatment standard promulgated
under this section, it shall be unlawful for any owner or
operator of any source to operate any source in viola-
tion of any such effluent standard or prohibition or pre-
treatment standard.
INSPECTIONS, MONITORING AND ENTRY
Sec. 308. (a) Whenever required to carry out the ob-
jective of this Act, including but not limited to (1) de-
% eloping or assisting in the development of any effluent
limitation, or other limitation, prohibition, or effluent
standard, pretreatment standard, or standard of per-
formance under this Act; (2) determining whether any
person is in violation of any such effluent limitation, or
other limitation, prohibition or effluent standard, pre-
treatment standard, or standard of performance; (3)
an> requirement established under this section; or (4)
carrying out sections 305, 311, 402, 404 (relating to
State permit programs), and 504 of this Act—
(A) the Administrator shall require the owner or
operator of any point source to (i) establish and main-
tain such records, (ii) make such reports, (iii) install,
use, and maintain such monitoring equipment or
methods (including where appropriate, biological moni-
toring methods), (iv) sample such effluents (in accor-
dance with such methods, at such locations, at such
internals, and in such manner as the Administrator shall
prescribe), and (v) provide such other information as he
ma> reasonably require; and
(B) the Administrator or his authorized represer
tiv e, upon presentation of his credentials—
(i) shall have a right of entry to, upon, or througn
an\ premises in which an effluent source is located or in
\\hich any records required to be maintained under
clause (A) of this subsection are located, and
(ii) may at reasonable times have access to and copy
any records, inspect any monitoring equipment or
method required under clause (A), and sample any ef-
fluents which the owner or operator of such source is re-
quired to sample under such clause.
(b) Any records, reports, or information obtained
under this section (1) shaJl, in the case of effluent data,
be related to any applicable effluent limitations, toxic,
pretreatment, or new source performance standards,
and (2) shall be available to the public, except that upon
a showing satisfactory to the Administrator by any per-
son that records, reports, or information, or particular
part thereof (other than effluent data), to which the Ad-
ministrator has access under this section, if made public
would divulge methods or processes entitled to protec-
tion as trade secrets of such person, the Administrator
shall consider such record, report, or information, or
particular portion thereof confidential in accordance
with the purposes of section 1905 of title 18 of the
United States Code, except that such record, report, or
information may be disclosed to other officers, employ-
ees, or authorized representatives of the United Stat*-
concerned with carrying out this Act or whan relevan
anv proceeding under this Act.
(c) Each State may develop and submit to the Ad-
ministrator procedures under State law for inspection,
monitoring, and entry v\ith respect to point sources lo-
caied in such State. If the Administrator finds that the
procedures and the law of any State relating to inspec-
tion, monitoring, and entry are applicable to at least the
same extent as those required by this section, such State
is authorized to apply and enforce its procedures for in-
spection, monitoring, and entry with respect to point
sources located in such State (except with respect to
point sources owned or operated by the United States).
FEDERAL ENFORCEMENT
Sec. 309. (a) (I) Whenever, on the basis of any in-
formation available to him, the Administrator finds
that any person is m violation of any condition or
limitation which implements section 301, 302, 306, 307,
308, 318, or 405 of this Act in a permit issued by a State
under an approved permit program under section 402 or
40-i"of this Act, he shall proceed under his authority in
paragraph (3) of this subsection or he shall notify the
person in alleged violation and such State of such find-
ing. If beyond the thirtieth day after the Administra-
tor's notification the State has not commenced ap-
propriate enforcement action, the Administrator shall
issue an order requiring such person to comply v\
such condition or limitation or shall bring a civil act.
in accordance with subsection (b) of this section.
(2) Whenever, on the the basis of information avail-
-------
APPENDIX B
(Page 11 of 14)
:nate shall be notified of the award by the Admmistra-
or and the awarding of such recognition shall be pub-
lished in the Federal Register.
(f) Upon the request of a State water pollution con-
trol agency, personnel of the Environmental Protection
Agency may be detailed to such agency for the purpose
of carrying out the provisions of this Act.
GENERAL DEFINITIONS
Sec. 502. Except as otherwise specifically provided,
when used in this Act:
(1) The term "State water pollution control agency"
means the State agency designated by the Governor
having responsibility for enforcing State laws relating
to the abatement of pollution.
(2) The term "interstate agency" means an agency of
two or more States established by or pursuant to an
agreement of compact approved by the Congress, or
any other agency of two or more. States, having sub-
stantial powers or duties pertaining to the control of
pollution as determined and approved by the Admini-
strator.
(3) The term "State" means a State, the District of
Columbia, the Commonwealth of Puerto Rico, the Vir-
gin Islands, Guam, American Samoa, and the Trust
Territory of the Pacific Islands.
(4) The term "municipality" means a city, town,
trough, county, parish, district, association, or other
public body created by or pursuant to State law and
having jurisdiction over disposal of sewage, industrial
wastes, or other wastes, or an Indian tribe or an autho-
rized Indian tribal organization, or a designated and
approved management agency under section 208 of this
(5) The term "person" means an individual, corpor-
ation, partnership, association, State, municipality,
commission, or political subdivision of a State, or any
interstate body.
(6) The term "pollutant" means dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equip-
ment, rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water. This term
does not mean (A) "sewage from vessels" within the
meaning of section 312 of this Act; or (B) water, gas, or
other material which is injected into a well to facilitate
production of oil or gas, or water derived in association
with oil or gas production and disposed of in a well, if
the well used either to facilitate production or for dis-
posal purposes is approved by authority of the State in
which the well is located, and if such State determines
that such injection or disposal will not result in the de-
gradation of ground or surface water resources.
(7) The term "navigable waters" means the waters of
e United States, including the territorial seas.
(S) The term "territorial seas" means the belt of the
seas measured from the line of ordinary low water
along that portion of the coast which is in direct con-
tact wiih the open sea and the line marking the seaward
limit of inland waters, and extending seaward a dis-
tance of three miles.
(9) The term "contiguous zone" means the entire
zone established or to be established by the United
States under article 24 of the Convention of the Terri-
torial Sea and the Contiguous Zone.
(10) The term "ocean" means any portion of the
high seas beyond the contiguous zone.
(11) The term "effluent limitation" means any re-
striction established by a State or the Administrator on
quantities, rates, and concentrations of chemical, physi-
cal, biological, and other constituents which are dis-
charged from point sources into navigable waters, the
waters of the contiguous zone, or the ocean, including
schedules of compliance.
(12) The term "discharge of a pollutant" and the
term "discharge of pollutants" each means (A) any ad-
dition of any pollutant to navigable waters from any
point source, (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any
point source other than a vessel or other floating craft.
(13) The term "toxic pollutant" means those pollu-
tants, or combinations of pollutants, including disease-
causing agents, which after discharge and upon ex-
posure, ingestion, inhalation or assimilation into any
organism, either directly from the environment or indi-
rectly by ingestion through food chains, will, on the
basis of information available to the Administrator,
cause death, disease, behavioral abnormalities, cancer,
genetic mutations, physiological malfunctions (includ-
ing malfunctions in reproduction) or physical deforma-
tions, in such organisms or their offspring.
(14) The term "point source" means any discernible,
confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concen-
trated animal feeding operation, or vessel or other float-
ing craft, from which pollutants are or may be dis-
charged. This term does not include return flows from
irrigated agriculture.
(15) The term "biological monitoring" shall mean
the determination of the effects on aquatic life, includ-
ing accumulation of pollutants in tissue, in receiving
waters due to the discharge of pollutants (A) by tech-
niques and procedures, including sampling of organisms
representative of appropriate levels of the food chain
appropriate to the volume and the physical, chemical,
and biological characteristics of the effluent, and (B) at
appropriate frequencies and locations.
(16) The term "discharge" when used without quali-
fication includes a discharge of a pollutant, and a dis-
charge of pollutants.
(17) The term "schedule of compliance" means a
schedule "of remedial measures including an enforceable
sequence of actions or operations leading to compliance
with an effluent limitation, other limitation, prohibi-
tion, or standard.
(18) The term "industrial user" means those indus-
tries identified in the Standard Industrial Classification
2-10-7S
Copyright - 1973b/7he Bureau &' Na'icna1 A'tai-s ne
0013 3211.75 so:s:
79
-------
APPENDIX B
(Page 12 of 14)
pro1, e each such submitted program unless he
determines that adequate authority doe* not e\ist:
(1) To'ssue permits which—
( \) a??'/', and insure compliance \Mih. any applica-
ble requirements of sections 301, 302, 306, 307, and -V03;
(B) are for fixed terms not exceeding five years; and
(C) can be terminated or modified for cause includ-
ing, but not limited to, the following:
(i) violation of any condition of the permit;
fu'i obtaining a permit b> mursoresencation. or fail-
ure 'o disdose fully all reie1. ant facts;
(>.ii) change in any condition that requires either a
temporary or permanent reduction or elimination of the
permitted discharge;
(D) control the disposal of pollutants into wells;
(2) (A) To issue permits which apply, and insure
compliance with, all applicable requirements of section
308 of this Act, or
(B) To inspect, monitor, enter, and require reports to
at least the same extent as required in section 308 of this
Act;
(3) To insure that the public, and any other State the
waters of which may be affected, receive notice of each
application for a permit and to provide an opportunity
for public hearing before a ruling on each such applica-
tion;
(4) To insure that the Administrator receives notice
of each application (including a copy thereof) for a per-
mit;
(5) To insure that any State (other than the permit-
ting State), whose waters may be affected by the issu-
ance of a permit may submit written recommendations
to the permitting State (and the Administrator) \vith re-
spect to any permit application and, if any part of such
written recommendations are not accepted by the per-
mitting State, that the permitting State will notify such
affected State (and the Administrator) in writing of its
failure to so accept such recommendations together with
its reasons for so doing;
(6) To insure that no permit will be issued if, in the
judgment of the Secretary of the Army acting through
the Chief of Engineers, after consultation with the Sec-
retary of the department in which the Coast Guard is
operating, anchorage and navigation of any of the navi-
gable waters would be substantially impaired thereby;
(7) To abate violations of the permit or the permit
program, including civil and criminal penalties and
other \%avs and means of enforcement.
(S) To insure that any permit for a discharge from a
publicly owned treatment works includes conditions to
require the identification in terms of character and vol-
ume of pollutants of any significant source introducing
pollutants subject to pretreatment standards under sec-
tion 307 (b) of this Act into such works and a program
to assure compliance with such pretreatment standards
by each such source, in addition to adequate notice to
the permitting agency of (A) new introductions into
such uorks of pollutants from any source which would
be a new source as defined in section 306 if such source
discharging pollutants. (B) new introduction'
pollutants into such works from a source which we
be subject to section 301 if it were discharging such poi-
lu'ants. or (C) a substantial change in \oltim; or char-
acter of pollutants being introduced into such works b>
a source introducing pollutants into such works at the
time of issuance of the permit. Such notice shall include
information on the quality and quantity of effluent to
be introduced into such treatment works and any antici-
pated 'mpact of such change in the quantity or quality
of effluent to be discharged from such publicly owned
treatment works; and
(9) To insure that any industrial user of any publicly
owned treatment works will comply with sections 204
(b), 307, and 308.
(c) (1) Not later than ninety days after the date on
which a State has submitted a program (or revision
thereof) pursuant to subsection (b) of this section, the
Administrator shall suspend the issuance of permits
under subsection (a) of this section as to those navigable
waters subject to such program unless he determines
that the State permit program does not meet the require-
ments of subsection (b) of this section or does net con-
form to the guidelines issued under section 304 (i) (2) of
this Act. If the Administrator so determines, he shall
notify the State of any revisions or modifications nec-
essary to conform to such requirements or guidelines.
(2) Any State permit program under this section sh'
at all times be in accordance with this section and gui
lines promulgated pursuant to section 304 (h) (2) of t>.
Act. -
(3) Whenever the Administrator determines after
public hearing that a State is not administering a pro-
gram approved under this section in accordance with
requirements of this section, he shall so notify the State
and, if appropriate corrective action is not taken within
a reasonable time, not to exceed ninety days, the Admin-
istrator shall withdraw approval of such program. The
Administrator shall not withdraw approval of any such
program unless he shall first have notified the State, and
made public, in writing, the reasons for such with-
drawal.
(d) (1) Each State shall transmit to the Adminis-
trator a copy of each permit application received by
such State and provide notice to the Administrator of
every action related to the consideration of such permit
application, including each permit proposed to be issued
by such State.
(2) No permit shall issue (A) if the Administrator
within ninety days of the date of his notification under
subsection (b) (5) of this section objects in writing to
the issuance of such permit, or (B) if the Administrator
within ninety days of the date of transmittal of the pro-
posed permit by the State objects in writing to the is-
suance of such permit as being outside the guidelines
and requirements of this Act. Whenever the Administ
tor objects to the issuance of a permit under this pa
graph such written objection shall contain a statemein.
of the reasons for such objection and the effluent limiia-
Environment flesofter
0913 9211/73 SG353
72
-------
APPENDIX B
(Page 13 of 14)
able ;o him, the Administrator finds that violations of
perrr.'t conditions or limitations as set forth in para-
graph (1) of this subsection are so widespread that such
v iola:;oni aopear to result from a failure of the State to
enturce such -permit conditions or limitations effec-
ti\el\, he shall so notify the State. If che Administrator
finds such failure extends beyond the thirtieth day after
such notice, he shall give public notice of such finding.
During the period beginning with such public notice and
ending \>.hen such State satisfies the Administrator that
it will -r.forcs such conditions and limitations (hereafter
referred to in this section as the period of "federally as-
sumed enforcement"), except where an extension has
been granted under paragraph (5) (B) of this subsection,
the Administrator shall enforce any permit condition or
limitation with respect to any person—
(A) by issuing an order to comply with such condi-
tion or limitation, or
(B) by bringing a civil action under subsection (b) of
this section.
(3) Whenever on the basis of any information avail-
able to him the Administrator finds that any person is in
violation of section 301, 302, 306, 307, 308, 3IS, or
405 of this Act, or is in violation of any permit condi-
tion or limitation implementing any of such sections in a
permit issued under section 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 with subsec-
tion (b) of this section.
(4) A copy of any order issued under this subsection
shall be sent immediately b> the Administrator to the
State in which the violation occurs and other affected
States. In any case in which an order under this subsec-
tion (or notice to a violator under paragraph (1) of this
subsection) is issued to a corporation, a copy of such
order (or notice) shall be served on any appropriate cor-
porate officers. An order issued under this subsection
relating to a violation of section 308 of this Act shall not
take effect until the person to whom it is issued has had
an opportunity to confer with the Administrator con-
cerning the alleged violation.
(5) (A) Any order issued under this subsection shall
be b\ personal service, shall state with reasonable
specificity the nature of the violation, and shall specify a
time for compliance not to exceed thirty days in the case
of a violation of an interim compliance schedule or
operation and maintenance requirement and not to ex-
ceed a time the Administrator determines to be reason-
able in the case of a violation of a final deadline, taking
into account the seriousness of the violation and any
good faith efforts to comply with applicable require-
ments.
(3) The Administrator may, if he determines (i) that
anj person who is a violator of, or any person who is
otherwise not in compliance with, the time requirements
under this Act or in any permit issued under this Act,
has acted in good faith, and has made a commitment (in
the form of contracts or other securities) of necessary
resources to achie\e comp'iance by the earliest possible
date after Jul> I, 1977. but not later than April 1, 1979;
(li) that any extension under this provision will not re-
sult in the imposition of any additional controls on any
other point or nonpoint source; (iii) that an application
for a permit under section 402 of this Act was filed for
such person prior to December 31. 1974; and (iv) that
the facilities necessary for compliance with sucn require-
ments are under construction, grant an extension of the
date referred to in section 301(b) (1) (A) to a date which
will achieve compliance at the earliest time possible but
not later than April 1, 1979.
(6) Whenever, on the basis of information available
to him, the Administrator finds (A) that any person is in
violation of section 301(b) (1) (A) or (C) of this Act, (B)
that such person cannot meet the requirements for a
time extension under section 301(i) (2) of this Act, and
(C) that the most expeditious and appropriate means of
compliance with this Act by such person is to discharge
into a publicly owned treatment works, then, upon re-
quest of such person, the Administrator may issue an
order requiring such person to comply with this Act at
the earliest date practicable, but not later than July 1,
1983, by discharging into a publicly owned treatment
works if such works concur with such order Such order
shall include a schedule of compliance.
(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 jurisdiction to restrain such violation and to
require compliance. Notice of the commencement of
such action shall be given immediately to the appropri-
ate State.
(c) (1) Any person who willfully or negligently vio-
lates section 301. 302, 306, 307, or 308 of this Act, or
any permit condition or limitation implementing any of
such actions 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, shall be
punished by a fine of not less than 52,500 nor more than
S25.0CO per day of violation, or by imprisonment for
not more than one year, or by both. If the conviction is
for a violation committed after a first conviction of such
person under this paragraph, punishment shall be by a
fine of not more than 550,000 per day of violation, or
by imprisonment for not more than two years, or by
both.
(2) Any person who knowingly makes any false state-
ment, representation, or certification in any applica-
tion, record, report, plan, or other document filed or re-
quired to be maintained undsr this Act or who falsifies.
tampers with, or knowing!) renders inaccurate any
Environment
00i3 92M/73/S0050
So
-------
APPENDIX B
(Page 14 of 14)
I
supersede or abrogate rights to quantities of water
which have be;n established by any State. Federal agen-
cies shall co-operate with State and local agencies to
de\-:lop comprehensive solutions to prevent, reduce and
eliminate pollution in concert with programs for manag-
ing water resources.
COMPREHENSIVE PROGRAMS FOR WATER
POLLUTION CONTROL
Sec. ;o:. (a) The Administrator shall, after careful
investigation, and in cooperation with other Federal
agencies. State"water pollution control agencies, in-
terstate agencies, and the municipalities and industries
involved, prepare or develop comprehensive programs
for preventing, reducing, or eliminating the pollution of
the navigable waters and ground waters and improving
the sanitary condition of surface and underground
waters. In the development of such comprehensive pro-
grams due regard shall be given to the improvements
which are necessary to conserve such waters for the pro-
tection and propagation of fish and aquatic life and
wildlife, recreational purposes, and the withdrawal of
such waters for public water supply, agricultural, in-
dustrial, and other purposes. For the purpose of this
section, the Administrator is authorized to make joint
investiiritions with any such agencies of the condition of
any waters In any State or States, and of the discharges
of an> sewage, industrial wastes, or substance which
may adv arsely affect such waters.
(b) (1) In the survey of planning of any reservoir by
the Corps of Engineers, Bureau of Reclamation, or
other Federal agency, consideration shall be given to in-
clusion of storage for regulation of streamflow, except
that any such storage and water releases shall not be
provided as a substitute for adequate treatment or other
methods of controlling waste at the source.
(2) The need for and the value of storage or regula-
tion of streamflow (other than for water quality) in-
cluding but not limited to navigation, salt water intru-
sion, recreation, esthetics, and fish and wildlife, shall be
determined by the Corps of Engineers, Bureau of
Reclamation, or other Federal agencies.
(3) The need for, the value of, and the impact of,
storage for water quality control shall be determined by
the Administrator, and his views on these matters shall
be set forth in any report or presentation to Congress
proposing: authorization or construction of any reser-
voir including such storage.
(4) The value of such storage shall be taken into ac-
count in determining the economic value of the entire
project of which it is a part, and costs shall be allocated
to the purpose of regulation of streamflow in a manner
which will insure that all project purposes, share
equitably in the benefits of multiple-purpose construc-
tion.
(5) Costs of regulation of streamflow features in-
corporaced in any Federal reservoir or other impound-
ment under the provisions of this Act shall be derer-
mmed and rhe beneficiaries identified and if the benefits
are widespread or national in scope, the costs of su
features shall be nonreimbursable.
(6) No license granted by the Federal Power Commis-
sion for a hvdroelectric power project shall include
storage for regulation of streamflow for the purpose of
water quality control unless the Administrator shall rec-
ommend its inclusion and such reservoir storage capac-
ity shall not exceed such proportion of the total storage
required for the water quality control plan as the
drainage area of such reservoir bears to the drainage
area of the river basin or basins involved in such water
quality control plan.
(c) (I) The Administrator shall, at the request of the
Governor of a State, or a majority of the Governors
when more than one State is involved, make a grant to
pay not to exceed 50 per centum of the administrative
expenses of a planning agency for a period not to exceed
three years, which period shall begin after the date of
enactment of the Federal Water Pollution Control Act
Amendments of 1972, if such agency provides for ade-
quate representation of appropriate State, interstate,
local, or (when appropriate) international interests in
the basin or portion thereof involved and is caoable of
developing an effective, comprehensive water quality
control plan for a basin or portion thereof.
(2) Each planning agency receiving a grant under this
subsection shall develop a comprehensive pollution con-
trol plan for the basin or portion thereof v. hich—
(A) is consistent with any applicable water qual
standards, effluent and other limitations, and thermal
discharge regulations established pursuant to current
law within the basin;
(B) recommends such treatment works as will pro-
vide the most effective and economical means of collec-
tion, storage, treatment, and elimination of pollutants
and recommends means to encourage both municipal
and industrial use of such works;
(C) recommends maintenance and improvement of
water quality within the basin or portion thereof and
recommends methods of adequately financing those
facilities as may be necessary to implement the plan; and
(D) as appropriate, is developed in cooperation with,
and is consistent with any comprehensive plan prepared
by the Water Resources Council, any areawide waste
management plans developed pursuant to section 208 of
this Act, and any State plan developed pursuant to sec-
lion 303(e) of this Act.
(3) For the purposes of this subsection the term
"basin" includes, but is not limited to, rivers and their
tributaries, streams, coastal waters, sounds, estuaries,
bays, lakes, and portions thereof, as well as the lands
drained thereby.
(d) The Administrator, after consultation with the
States, and River Basin Commissions established under
the Water Resources Planning Act, shall submit a repor'
to Congress on or before July 1, 1978, which analy
the relationship between programs under this Act, a.
the programs by which State and Federal agencies allo-
cate quantities of water. Such report shall include rec-
-------
APPENDIX C - NEUTRAL INSPECTION PLAN
-------
APPENDIX C
(Page '1 of 9 )
CRITERIA FOR NEUTRAL SELECTION OF
NPDES COMPLIANCE INSPECTION CANDIDATES
A. BACKGROUND
In response to the recent Supreme Court decision in
Marshall v. Barlow's Inc., 436 U.S. 307 (1978), the Agency
is developing neutral inspection criteria to be used when
targeting compliance inspections. The purpose of using the
neutral inspection plan is to eliminate any bias in choosing
candidates for compliance inspections.
Under the National Pollutant Discharge Elimination
System (NPDES) authorized by Section 402(a)(l) of the Clean
Water Act, over 50,000 permits have been issued for the dis-
charge of pollutants. Of these issued permits, about 8,000
have been classified by EPA or states with NPDES authority
as major permittees. The designation of a permittee as
"major" is based on quantity and potential environmental
impact of the wastewater source.
EPA's program to monitor compliance with the terms and
conditions of issued NPDES permits is primarily designed to
ensure the compliance of the major permittees. EPA has not
been provided with sufficient resources £o routinely monitor
««
the compliance of the remaining minor permittees.
Compliance inspections performed under the NPDES pro-
gram can be divided into two general categories.: 1) those
-------
APPENDIX C
(Page 2 of 9)
2
inspections based on administrative factors; and 2) those
inspections based on specific evidence of an existing
violation, e.g. civil probable cause.
Inspections based on the second category are not
neutral since they are based on prior knowledge of apparent
or probable permit violations. Factors which constitute
specific evidence include: 1) violations reported on recent
DMRs; 2) citizen complaints; 3) r-esponse to emergency
situations, such as threats to public health or safety;
4) follow-up to previous inspections which indicated
violations; and 5) specific enforcement case support.
For targeting inspections which rely strictly on
administrative factors, the Agency has developed the
following neutral inspection plan.
B. UNIVERSE OF NPDES INSPECTION CANDIDATES
The EPA, upon the presentation of credentials, has the
authority to enter and inspect all NPDES permitted facilities
at any time regardless of other factors such as "major" or
"minor" designations. Because of limited resources, not all
facilities are targeted for inspections each year. The
frequency with which compliance inspections are performed
is based on the discharger's environmental significance,
available resources, the types and mix of inspections being
employed, climatic and geographical influences on inspection
logistics, and other factors influencing compliance monitor-
ing such as the ability to follow up on inspection findings.
-------
APPENDIX C
(Page 3 of 9)
C. BASIC SELECTION CRITERIA
When targeting permittees of neutral compliance
inspections, the time that has passed since the last inspec-
tion and the geographical grouping of the permittees are the
only factors which may be considered. Other information, such
as data from DMRs which indicated apparent violations, would
not be used since this would constitute probable cause under
the civil standard. However, the- existence of such data would
not preclude the facility from being considered for a neutral
inspection if this neutral plan is followed during the
selection process.
The only permittees who would not be considered when
targeting neutral compliance inspections are permittees who
are in current litigation with EPA. This does not apply to
state litigation.
D. NEUTRAL COMPLIANCE INSPECTIONS
To target inspections based on a neutral inspection plan,
Regions will first determine the length of time that has
passed since the last EPA or state inspection for all major
permittees. This can be done easily using the capabilities
of the Permit Compliance System (PCS) available in each EPA
Regional Office. A PCS report can be generated which will
print out each major permittee in order by the date of the
last inspection. Appendix A contains a sample list which
the PCS System can generate. A separate report should be
-------
APPENDIX C
(Page A of 9)
4
generated for each state in the Region. In some cases, it
may be appropriate to use subdistricts (by county) of a state
depending on the organizational structure in a specific state
or Region. The permittees which are highest on the list
(greatest time since last inspection) will have the highest
priority for neutral inspections.
In order to minimize use of Agency resources, inspection
targeting should be based on both the priority list and geo-
graphical grouping. For example, any permittee on the list
may be targeted for an inspection if it is in close physical
. •
proximity to a facility which is very high on the list. This
is extremely important as it allows the most efficient use of
the limited inspection resources. The PCS System can give the
names and most recent inspection dates for all permittees
which are in the same county as a permittee which is selected
for an inspection.
The priority list will identify only those facilities
which are possible targets for compliance inspections during
the current fiscal year. The exact timing of these inspec-
tions during the fiscal year will be at the discretion of
':he Regional Office, based on logistics and specific Regional
Leeds.
The list of permittees targeted for inspections may be
imended at any time during the fiscal year. Similarly, before
:he start of a new fiscal year, Regional Offices should
-------
APPENDIX C
(Page 5 of 9)
5
reassess all permittees regardless of whether all previously
targeted inspections have been completed for the current
fiscal year.
INSTRUCTIONS FOR TARGETING INSPECTIONS BASED ON THE POINT
ASSESSMENT SYSTEM
To use the neutral inspection plan, Regional Offices will
first determine the percentage of inspection resources that
will be devoted to neutral administrative inspections. This
will depend, to a large extent, on the ongoing enforcement
case load and the percentage of major permittees which have
probable violations of effluent limitations and compliance
schedules. For example, a Region may allocate the following
resources for neutral inspection activities:
a) 10% of the Compliance Sampling Inspection resources;
b) 25% of the Performance Audit Inspection resources;
and
c) 50% of the Compliance Evaluation Inspection
resources.
The remaining Regional inspection resources would be
reserved for inspections based on probable cause and specific
enforcement case support.
The Region should next determine the approximate number
of neutral inspections that can be completed using the
resources allocated for each inspection type (CSI, CEI, PAI).
This number will be flexible depending on the type and/or the
number of outfalls and size of the permitted facility.
-------
APPENDIX C
(Page 6 of 9)
6
For each state, starting with the permittees highest on
the list, proceed down the priority list until about one third
of the neutral inspection resources for that state have been
allocated. For example, if the allocated inspection resources
for neutral inspections in a particular state are enough for
30 inspections, approximately the first 10 permittees on the
priority list would be targeted. The Region should then use
the remaining 20 inspections for permittees which are grouped
with the already targeted candidates based on common geographi-
cal and/or special technical considerations. For example, a
Region may target a sampling inspection at a facility with a
high point rating, and then target several more sampling
inspections, CEIs or PAIs in the same geographic area. This
would allow all these inspections to be done on one inspection
trip.
Regions may target inspections to single facilites at
times, such as when the facility is in close proximity to
Regional Offices or Field Offices.
A specific percentage of inspection resources are set
aside each fiscal year for enforcement case support activi-
ties and emergency response. By the last quarter of the
fiscal year, Regions should know to what extent these
set-aside resources will be available for routine inspections.
To the extent that these resources become available, they
should be utilized to inspect the remaining permittees on th'e
priority list.
-------
APPENDIX C
(Page 7 of 9 )
Appendix A
The following two pages are sample printouts from the Permit
Compliance System (PCS) for the State of New Jersey. Printout 1
gives a partial listing of major NPDES facilities in order by the
date of the last inspection. Permittees with no date listed for
inspections have not had an inspection which was noted in PCS.
These permittees will have the highest priority for neutral
inspections.
Printout 2 is a list of permittees and inspection dates by
county (for New Jersey). This Printout is used to identify per-
mittees which may be in close physical proximity to facilities
which were chosen for inspections from Printout 1.
-------
Printout 1
NAME IOATE'
PSSlG CO HARRISON GAS PLANT
PUBLIC SERVICE ELEC & GAS
PUBLIC SERVICE EUEC «. CAS
PUBLIC SERVICE ELEC t GAS
NL INDUSTRIES
HK:FFA«Y PAPERDOARD co,
SCHERING COUP.
E.I. OU PONT OE f.'EMOUR CORP,
SCIENTIFIC CHEMICAL PROCESSING
PFIZER IMC.
PORT AUTHORITY OF N Y AN'O N J
eor.pEN IHC-SUQH FI;OO
P.S.E.i G MERCER' G«llER
ATLANTIC CIIY ELEC,
JERSEY CENTRAL POKER & LIGHT
JERSEY CENTRAL POHER & LIGHT
P.S.E, R G.
CITY OF ELIZABETH
PASSAK VALLEY SEHERAGE COMM
K03IL CHEMICAL DI3T, SER,
ATLANTIC COUNTY S./r,'
CUMBERLAND COUNTY UTILITIF.S All
MONMOUTH co, BAYSHORE OUTFALL
CITY OF NEWARK DPM
P.S.E.& G HOPE CREEK
CITY OF ORANGE DPH
PEOUANNOCK Lin.rx.f, FAIRFILO 3
OCUN COUNTY SEilERAGC AUTH,
CITY OF BORDCNrOHN DPW 7o7
Town OF V-LST NEW YORK 771130
HOORESTOHN -TrlP STP 771205
V|ILLl'|f'lJO''0 KUA STP 771206
BURLll'GTOfl TVIP MAIN STP 771212
CITY Or •'LINGTON 771212
HAMILT P »UA 700215
CHERRY t-.uL TOWNSHIP 7,80223
i -i'-rn rnTI I F r f . 7^0220
THE PERMIT COMPLIANCE SYSTEM.
ALL" MAJOR FACILITIES AND THEIR LATEST INSPECTION
— .•-.... REGION=02 STATEsNJ —
9|J5 MONDAY, JUNE 16».19BO 1
ITYPE INSP
NPOES CITY
NJ0000566 HARRISON
NJ0000562 EDISON /TWP/
NJU000639 NEWARK
NJ0000671 JERSEY CITY /C/
Njcoooiii SA.YHEVILLE
NJOOOH57 CLIFTON '
NJ0002305 KENILHORTH
NJ000264Q LJMDEN
NJ0003212 CARLSTADT BORO
Njooos'ibo PARSIPPANY
NJ000332'l NEWARK
NJOOO«961 CAPF MAY
NJ000159S HAMILTON /TUP/
NJ00053S3 PENf.'S'GROVE
NJ0005517 HILFOHD
NJooossso LACEY TKP
NJOOOS622 HANCOCKS BRIDGE.
NJ0020618 ELIZABETH /C/
NJ0021016 NE/fAPK '
NJ0021392 CARTERE?
NJQ021'I73 ATLANTIC CITY
Nj002«9
-------
•prii. ^t 2
NAME IDATE
ATLANTIC COUNTY S'.A.
HAMILTON TI'P MUA 780215
CITY OF EGG HARBOR 790815
TO'oH OF HAMNONTON 79o&ii
BUENA BOROUGH MUA 791003
SCIENTIFIC CHEMICAL PROCESSING
JOINT HTG RUTH-E,RUTH-CARL. 751125
DIAMOND SHAMROCK) CORP 770328
TCCHIUCAL OIL PRODUCTS INC 760626
HATHE50N GAS PROD. CO. 78062"?
ROYCE CHEMICAL CO 700911
HAPCAL PAPER MILLS INC 730911
BENDIX COOP. . 781025
A3CX CORPORATION, 790301
INTERhEOlAJTCS DIV-TENN. CHEM. 790320
HACKEN5ACK MATER COMPANY 7903e'<
BOROUGH .Cr EOGErtATER 790321
FORD MOTOR' CO MAHHAH 790119
LEVER BROTHtlUS CO. 790516
TRANSCONTINENTAL GAS PIPE LINE' 790606
BERC-EN COUNTY UTILITIES AUTH, 790620
UHIVERISAL OIL PROD. 790702
NORTHHEST BERGEN COUNTY 3,A. 790802
HAZARD CORPORATION 790912
NO.ARLINGTON LYNDHURST JNT MTG 791019
PUBLIC SERViICE ELEC & CA3 791126
BOROUGH OF FAIR LAMM MJ . 800108
VILLAGE OF P.IDGEWOOO 600305
CITY OF BORDENTQHH DPH 711211
BEVERLY SEWERAGE'iAUTHORITY 770203
'STEP*!! CHE'1 C" !»D rHEH DIV 770210
MOORESTOHN T«P STP "' 77120^
HILLING30RO MUA STP 771206
BUHLINGTOH TWP MAIN STP 771212
CITY OF BURLINGTON 771212
IOMAC CHEM CO OIV OF 5YBRON 760830
TEMNECO CHEMICALS ItlC 781004
GRIFFIH PIPE PRODUCTS 781212
MOUNT LAUREL MUA 790103
EYESHAM MUA 790215
HCUFOKD TOWNSHIP 790215
BUKLINGTON THP LA GORGE SQUARE 790307
DEI.RAN SEHEHAGE AUTHORITY 7903IU
MOUNT HOLLY SEWERAGE AUTHORITY 790311
MOUNT LAUREL MUA 790«17
MAC-MCGUIRE AFB 79o«25
HOOKER CHEMICAL CORP 790"27
HERCULES Me 790502
FORT OIK 790517
ARHAK COMPANY 790530"
P.S.C.JE, 790619
p. <; c. r. n. 790619
THE PERMIT COMPLIANCE SYSTEM
ALL MAJOR FACILITIES AND THEIR LA.EST INSPECTION
........^..... REGION3Q2 STATE3MJ ...-.,....-...
'9125 MONDAY, JUNE lb/ 1980
ITYPE
C
C
C
C
C
C
C
C
C
C
s
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
f
C
L
C
C
C
C
C
3
s
3
C
C
C
C
C
C
C
C
C
C
C
C
C
INSP
R
s
3
s
R
R
R
K
R
R
P
S
R
R
S
S
S
S
R
3
S
a
R
S
s
s
R
s
R
n
II
R
R
R
R
R
R
R
S
S
S
3
3
S
S
R
S
S
s
s
3
HPDES
NJ0021473
HJ0021393
NJ002058?
t(J0025l60
"J0021717
NJ0003Z12
tlJQOQ£7c>8
NJ0005750
KJ0002721
tU000267<|
NJ00020(>7
NJGC0010Q
NJOOOJIIO
NJ0020591
NJ000270<(
IIJ0002143
MJ0002101
NJ0020026
NI0001252
NJ0023368
MJ3023291
NJ0000621
NJ0023671
NJ0024791
NJ0024678
NJ000511Q
NJ0023361
NJD021709
MJ002(t660
NJ0005509
NJ0001391
NJ000509b
HJ002517B
NJ002'I040
NJ0026332
HJ0021fr95
HJ0023507
» JO 0240 15
HJ0023901
NJ0022578
NJ0005112
MJ0004955
NJ0004560
NJ0005002
MJ0005690
CITY
ATLANTIC CITY
MAYS LANDING
EGG HARiSOR CITY /C/
HAMMONTON "
DUEMA aORO
CARL3TADT BORO
RUTHcllFoRD
CARL&TADT DORO
CARLStADT BORO
CAST HUTHERFORO
EAST HUTHERFORO
EAST KATERSON
TETERBORO
HAHHAH TIP
ORADELL
EDGEHATER BORO
MAHKArt THP
EDGEKATER BORO
CARL3TACT BORO
LITTLE FEHRY /BORO/
EAST KUTHERFORD
HALOHICK
NURTH ARLINGTON
NORTH ARLINGTON
RIDGEFIELD 60RO
FAIRLAWN
RIDGEVtOOO nl
BORDENTOKN /C/
BEVERLY /CITY/
FIELDSBORO
MOOHE5TOMN THP
HILLINGUORO THP
QURUIMGTON /THP/
BURLINGTON /
-------
APPENDIX D - SAMPLE 308 LETTER
-------
APPENDIX D
(Page 1 of 2)
Date
Dear Mr. :
Pursuant to the authority contained in Section 308 of the Federal
Water Pollution Control Act (33 U.S.C. 1318) representatives of the
Environmental Protection Agency, specifically, the NEIC office in
Denver, Colorado and/or Region will conduct an inspection of your
Company's manufacturing operations together with associated waste
treatment and discharge facilities. The inspection is planned for
the week of and is intended to determine degree of
compliance with the requirements of the National Pollutant Discharge
Elimination System issued to your Company.
Our representatives will observe your process operations, inspect and
evaluate your monitoring/field/laboratory equipment and methods;
examine appropriate records; and will be concerned with related
matters.
The EPA visit will focus on procedures, and accordingly, it is reques-
ted that Company monitoring under conditions of the NPDES permit be
scheduled to precisely correspond with this inspection. We ask only
that the Company conduct its monitoring (for all parameters, if at
all possible) under normal procedures and practices. On-the-spot
observation shall be made of sample collection, any field preserva-
tion of samples, handling and transport of samples, field and analy-
tical equipment in operation, and the actual conduct of analytical/
laboratory procedures. If analyses are conducted by an ouside contrac-
tor, please notify your agent that EPA personnel will evaluate analy-
tical tests and methods as they are being performed. Please inform
us if these tests are conducted elsewhere than at your main manufac-
turing location.
Please provide the name of any "new" individual whom we may not have
had contact with in the past (if such is necessary) to enable our
access to the plant. We would appreciate a list of safety equipment
if required by our people. Any reports or information that may be
considered confidential by you will be treated in accordance with
Section 308(b) of the Act, but should be properly identified as such
to the EPA, and necessary reasons for confidential claims may need to
be made available to the EPA. However, "effluent data" is always
considered accessible to the public.
If you have any questions concerning this inspection, please telephone
, NEIC, Denver at .
Sincerely yours,
-------
APPENDIX D
(Page 2 of 2)
Date
ABC Company
Pursuant to the authority contained in Section 308 of the Federal
Water Pollution Control Act (33 U.S.C. 1318) representatives of the
Environmental Protection Agency (EPA), specifically of the National
Enforcement Investigations Center, or Region V, may conduct an inspec-
tion of your Company's manufacturing operations, together with asso-
ciated waste treatment and discharge facilities, within the next six
months. The inspection is designed to carry out EPA's responsibilities
under Section 308. The persons who will be conducting the inspections
will be authorized representatives of the Environmental Protection
Administration as referred to in Section 308 and will present appro-
priate credentials. They will observe your process operations;
inspect and evaluate your monitoring/field/laboratory equipment and
methods; examine monitoring and calibration records and other appro-
priate records; and will be concerned with related matters.
The EPA visit will focus on procedures and, accordingly, it is
requested that Company monitoring be conducted under usual practices
and procedures. On-the-spot observations shall be made of sample
collecting, field preservation of samples, handling and transport of
samples, and field and analytical equipment used in the actual conduct
of analytical/laboratory procedures. If analyses are conducted by an
outside contractor, EPA personnel will also evaluate analytical tests
and methods as they are being performed. Please inform the inspectors
if any tests are conducted other than at your main manufacturing
location.
It is requested that plant process flow diagrams, waste treatment
plant flow diagrams, and treatment plant design data be made available
to the inspectors during the first day of their inspection.
The EPA inspectors will also provide verification samples for
analytical evalution by the Company for certain pollutant parameters.
The results of these tests, as well as the results of the compliance
monitoring sampling taken during the inspection, should be transmitted
to the EPA's National Enforcement Investigations Center, Denver
Federal Center, P.O. Box 25227, Denver, Colorado 80225, within two
weeks after the EPA inspection.
Please inform the appropriate plant personnel to expect such an
inspection to ensure a rapid plant entry and to ensure that these
surveys are conducted without unnecessary delay.
We will appreciate your full cooperation in this matter.
Sincerely yours,
-------
APPENDIX E - CREDENTIALS
-------
COMPLlAi
Cre^
Under authorhV?delegated
KS. Environ
^AUDITOR
by the Ack&fnistrator of the
tion Agency v
'O
i
whose signature appeaf$;below
Administrator. This authorizati
308(a), clause (B) of tHJ^Iea
with a contract betweenHVPA
Issued
Expires
sentative of the
perfornitlJfl duties listed in section
^!p^*v ^^
re to b€^:performed in accordance
>
U.S. EPA Contract No.
Control No.
•D
"• •" i '*j> V*" *"•*• J^" i> V "•* •"•"
y.,.. faffcfl \\ *'
? >. -t ^.^
>
X
(Signature)
Authorized Representative
(Signature)
U.S. EPA Project Officer
Phone
-------
APPENDIX F - SAMPLE WARRANT
-------
APPENDIX F
1 of 1 f
IN THE UNITED STATES DISTRICT COURT
FOR TEE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IN TfiS HATTER OF: )
)
GENERAL MOTORS CORPORATION )
GENERAL MOTORS ASSEMBLY DIVISION )
WILLOW RUN AIRPORT j APPLICATION FOR
YPSILANTI, MICHIGAN 48197 ) ADMINISTRATIVE WARRANTS
ANT) )
VEHICLE EMISSION LABORATORY )
GENERAL MOTORS PROVING GROUND )
HILFORD, MICHIGAN 48042 )
NOW COMES the Administrator for the Environmental
Protection Agency (EPA) , by and through the United States
Attorney, and applies for administrative warrants to
enter, to observe a Selective Enforcement Audit (SEA) test
on a configuration of motor vehicles canufactured by the
General Motors Corporation (GM) as specified in a SEA test
order issued on July 23 , 1973, by the Assistant Xdmtnist-rator
for Enforcement of EPA, and to inspect GM ' s records, files,
papers, processes, controls, and facilities which are
involved in and associated with the manufacture and testing
of said configuration pursuant to said test order at the"
premises of the GM Willow Run vehicle assembly plant, Ypsilanti,,
Michigan, and the GM vehicle emission laboratory at Milford,
Michigan, in accordance with Sections 206(b) and (c) , 208(a)
and 301(a) of the 'Clean Air Act, 42 U.S.C. §7525(b) and (c) ,
7542(a) and 7601(a), and regulations promulgated thereunder.
In support of this application, the Administrator respectfully
submits an affidavit and proposed warrants.
James K. Robinson
United States Attorney
By:.
Assistant United States Attorney
-------
APPENDIX F
(Page 2 of 10)
AFFIDAVIT
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
I, Edward McHan, being duly sworn, hereby depose
apd say:
1. I am a duly authorised employee or the United
States Environmental Protection Agency, and ray title is
Chemical Engineer, Surveillance and Analysis Division,
Region VT. which includes the State of Louisiana. In my
capacity, I am responsible for inspecting facilities subject
to various federal environmental statutes as directed by ay
supervisors.
2. On Tuesday, August 1, 1978 from about 7:45
p.m. to 8:45 p.m., 1 nade a preliminary inspection of che
CLAW facility and took tvo samples at the open pits. On
Wednesday, August 2. 1978 I took a few photographs of the
facilities from around 3:30 p.m. until 5:30 p.m. On Thursday,
August 3, 1978 accompanied by another EPA employee, I visited
nhe facility and area from about 11:30 a.m. to 2:00 p.m. and
also took a few additional photog-raphs. These brief visits
to the site have only involved facility employees a few
minutes each time in order to obtain passes from the field
office and to open gstes at various guard houses.
3. On Friday, August 4, 1978, a local deputy
sheriff, state and local officials and I were refused adnit-
tanca to Che CLAW facility. Also, CLAW officials were no
longer at the field house or available elsevrhere to issue
passes to enter. My previous sampling and inspection was
not sufficient for laboratory purposes" and needs to be
resumed.
4. Information I have gathered in the local
community, in newspapers, on television, from laboratory
-------
APPENDIX F
(Page 3 of 10)
tests of the samples, from the Ibcrville Sheriff's Office,
and at Che CLAW facility strongly suggest and support: the
need to enter and inspect the facilities for possible Section
301, 311 and ocher violations of the Federal Water Pollution
Control Ace. Further, -it is possible chat there are hazardous
wastes and conditions on the premises as defined in Section
1004(5) of the Resource Conservation and Recovery Act of 1976,
(42 USC 6903) (5) .which constitute an iminenc hazard under
seccion 7003 of the Resource Conservation and Recovery Act
of 1976 (42 USC 6973). These observations are:
a. Obvious spillage of wasce material on
the grounds of the CLAW facility subject to entering waterways.
b. Contaminated landfills wich obviously
exposed and damaged barrels with their contents enpcied or
nearly enipty.
c. Drainage froc landfills into a "fishing"
lake and ocher- adjacent areas leading to various waterways.
d. Open pits conza^.n4ng oil wastes and
hazardous, toxic chemical wastes with, che appearance of
overflow wastes on che adjacent grounds as well as high
water marks on trees nexc to che open pits equal co or
higher Chan che pics.
e. The lack of levees between che facility
grounds and drainage areas co the Grand ?jiver, "fishing
lake", bayous and barrow ditches.
f.' Copies of a few facility log records and
ocher documents which were previously copied by the local
Sheriff's office. These records indicate che receipt and con-
tent of oil and hazardous chemical wastes accepted at che
facility.
g. "Poor maincer.ar.ee and sloppy "housekeeping"
practices ac Che facility which leads a reasonable person Co
recognize the likelihood of these prohibited pollutants
-2-
-------
APPENDIX F
(Page 4 of 10)
entering into nearby waterways including waters of the
United States and its tributaries, as well as posing a.
threat to the environment and the public health and welfare
of the United States.
h. The reported death, of a 19 year old
track driver at the CLAW (Z?A, Inc.) open pits on July 25,
1978 while he was discharging waste into an open pit at the
facility. The death was possibly caused by his inhalation
of toxic fuaes caused by a reaction of nixing incompatible
toxic .wastes ia the open pit. Two eye witnesses to the
death of the driver reported the presence of choking fuaes
.in the area when they opened the'doors to their truck, to
assist the driver who. .died. .They also reported that his
truck was parked at the edge of the open pit with the doors
open at the cine of death. Subsequent laboratory.tests of
waste taken from the pits have shown waste materials were
present in the pit, which,when mixed with the spent caustic
being discharged from the driver's truck could have caused
the death. Final autopsy reports are still pending. It is
allegedly reported that CLAW facility officials directed the
*»
driver to take and discharge his wastes to the truck ramp on
the edge of an open pit. Discharging toxic waste into an
open pit at the edge of a.pit is.not a safe, desirable, or
acceptable practice since toxic chanical. reactions are very
probable and can result in the death of anyone nearby.
5. Section 303 of che. Federal Water Pollution
Control Act, 33 USC 1318,'and section 3007 of the Resource
Conservation and Recovery Act of 1976, (42 USC 6927), pro-
viding for entry, inspection, record inspection and copying
and sampling are reasonable, in the public interest and
necessary in order "to" carry out the provisions of these
Acts, which Acts are designed to protect the environment, as
-3-
-------
APPENDIX F
(Page 5 of 10)
veil as Che public health, and welfare. In the instant
natter it is reasonable to assume chc need for inspection,
based on the information and observations set out in paragraph
4 above and in the public interest.
J? /
^t^^J C jflc^dL*-
ESV.'AAD c. NC hAi-i
CHE:-!ICAL ENGINEER
UKITED STATES ENVIRONMENTAL
PROTECTION AGENCY
Subscribed and svorn to before ce
at Baton Rouge, State of Louisiana,
this /a of CLij^^^^r _, 1978.
-------
APPENDIX F
(Page 6 of 10)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TN THE MATTER OF
CLEAN LAND AIR AND WATER,
CORPORATION, d/b/a CLAW;
ETC.,. ET AL.
WARRANT OF ENTRY, INSPECTION
AND MONITORING PURSUANT TO
33 U.S.C.S1318 and 42 U.S.C.S6927
TO: THE UNITED STATES OF AiMERICA, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, THROUGH ITS DULY. DESIGNATED REPRESENTATIVE
OR REPRESENTATIVES, THE UNITED STATES MARSHAL OR ANY OTHER
FEDERAL OFFICER
An application having been made by the United States of
Anerica, United States Environmental Protection Agency, for a
warrant of entry, inspection and monitoring pursuant to 33 D.S.C.S1318
and 42 0-S.C. §6927, as part of an inspection prograai designed to
assure compliance with the Federal Water 'Pollution Control Act
(ccsaaonly referred to as the Clean Water Act), 33 U.S.C.S1251, et
seer. , and the Resource and Recovery Act of 1976 (42 O.S.C.SS901, et
seq.) ,. and an "affidavit having been made before rae by Edward McEam,
a duly authorized employee of the United States Environmental
Protection Agency, that he"has reason to believe-that on the premises
-hereinafter described there exist a danger to the public's health,
veJLfare and safety and to the property, rivers and envirerjnent of
the United 'States, and that in order to determine whether the
Federal Water Pollution Control Act (ccn^aonly referred to as the
Clean Water Act), 33 O.S.C-S1251, et seq., and the Resource and
Recovery Act of 1376 (42 U.S.C-S6901, et seq.), and the rules,
regulations and order's issued pursuant to the Acts have been or
are being violated, an entry on, and inspection and monitoring
of the said described property is required and necessary;
-------
APPENDIX F
(Page 7 of 10)
And, the Court being satisfied that there has been a
sufficient showing that reasonable legislative or administrative
standards for conducting an inspection and 'investigation have been
satisfied with respect to the said described property and that
probable cause exist to issue a warrant for the entry, inspection,
investigation and monitoring of the said described premises:
IT IS HEREBY ORDERED AND COiC-lAIIDED that the United States
of America, United States Environments-I Protection Agency, through
its duly designated representative or representatives, the United
States Marshal, or any other federal officer are hereby entitled tc
and shall be authorized and permitted to have entry upon the
following described property which is located in the Middle District
of .Louisiana:
"Those premises known as the Claw Corporation
waste disposal facility in Ibervillft Parish,
Louisiana, also known as Z?A, Inc., Clear Land
Air Water Corporation, Environmental Purification
Advancement, Environmental Purification Abatement
and possibly as the Pollins Environmental Services
of Louisiana, or which are cwr.ed or operated by
any other person or company,- corporation or part-
nership, which premises and property are more
particularly aj-.d further described as follows:
"From the intersection of La. Highway 75 and
•ia. Highway 3066, proceed South for approximately
7 miles; turn right and travel across the Sayor-
Sorrel-Pontocn 3ridce, a distance of approximately
0.2 miles; turn right, proceed northwest on Route
2, the Lower -Laves P.oad, for apprcxir-.stcly 1.6
miles at which point the pavement ends; at this
point turn right, travel approximately 0.1 miles
to the entrance of the injection well, which is
believed to be o*.~ned by Rollins Environmental
Services of Louisiana, Inccrpcratsd, all as is
shown on the attached photos identified as
Government Exhibits 1 and 2.'
•From the Rollir.s Environmental Services of
Louisiana, Incorporated office, proceed South on
the shell/gravel road for approximately 1.4 miles
until the road deadends. This is the location of
•the field office of Clean Land Air and Water
(CLAW), and storage tanks which are believed to be
owned by Rollins Environmental Services of Louisiana
Incorporated, all as is shown on the attached photos
identified as Government Exhibits 3, 4, and 5.
-------
APPENDIX F
(Page 8 of 10)
C7) seize, inspect, sample, and photcraph any
evidence which constitutes or relates to or
is part of a violation of the Federal Water
Pollution Control Act (crcr=nonly referred to
"as the Clean Water Act, 33 U.S.C.51251, et
seq. ; and the Resource and Recovery Act of 1976
(42 U.S.C.S6901, et sec.);
(8) take such photographs of the above authorized
procedures as nay be required or- necessary.
IT IS FURTHER ORDERED that a copy of this warrant shall
be left at the premises at the tiae of the inspection.
IT IS FURTHER ORDERED that if any property is seized,
the officer conducting the search and seizure sha.ll leave a receipt
for the property taken and prepare a written inventory of the property
seized an"d' return this warrant with the written inven-ory before
me within 10 days frca the date of this warrant.
IT IS FURTHER ORDERED that the warrant authorized herein
shall be valid for a period of 10 days frcn the da-a of this warrant.
IT IS FURTEZR ORDERED that the United States Marshal is
hereby authorized and directed to assist the representatives of the
United States Environmental Protection Agency in such manner as
joay-be reasonably necessary and required to execucs this warrant
and the provisions contained herein, including but set lirsited to
gaining entry upon the premises, the inspection **-r* monitoring
thereof, the seizure and sampling of materials, dccnrsents or equipment,
•and ttie photographing of the premises, . and. -the materials or equipment
thereon.
DATED this Je> day of Cuuj^^L- , 1S78.
UNITED STATIC M,\GIS7r>ATE
-------
APPENDIX F
(Page 9 of 10)
"From the field office of CUVW. return to ths
site of the intersection at the paved lower levee
road and the road leading to tie deep veH injection
site (Rollins Environmental}.' Proceed ncrthvesc
on the unpaved shell/gravel lever levee road
approximately 6.1 miles to the entrance read and
bridge leading to the gate guard house ar.d cace
of the EPA, Inc. waste disposal pits. 7hi_s"sa=e
-entrance road is 7.7 miles northwest along ihe
lower levee road from the intersection of the lower
levee road and Bayou Sorrel Pontoon Bridge ?joad.
IT IS FURTKZR ORDERED that the entry, i-ispacricn.
Investigation and monitoring authorized herein sha.ll be conducted
during regular working hours or at other reasonable ti_=es, within
reasonable linits and In a reasonable mariner frca 6:00 a.z:_ to
10:00 p.a.
IT IS FURTHER ORDERED that the warrant issued bezrein shall
be for the purpose of conducting an entry, Inspection, izves-iga-ior.
and nonitoring pursuant to 33 D.S.C.S1313 ar.d 42 U.S,C.5 = = 27
consisting of the following:
premises. Including all bu^ldir.gs, structures,
equipment, machines, devices, -ateria_ls a_=d
sites to inspect, sample-, photcgra=.i, rzcr.itor
or investigate the said premises;
(2) access to, seizure of and c=pyi_r.g of all records
pertaining to or related to the cpera-isn of
the facility, equipment, waste izaAerials
which are accepted and stored en the premises
and records which are recnired to be aair.-ained
under 33 -U.S.C.§1313(a) (A) , and 42 3.S .Z.S6901,
et seq. , .including any rules .and .r=guJLaziocs
and orders promulgated thereto;
(3) inspection, including photcgraphinc, of ar.y
monitoring ecui=rient or methods rec-^i_r=d by
33 n.S.C.Sl3iS(a) (A) , a— 42 U .S . C.'5£32" ;
(4) inspection, including photographing, cf any
equipment, processes or raethcds used i- sar.pling,
aonitoriag or in waste characterization;
(5) inspection, including photographing, of any
equipment or methods used to dispose of cr store
wa.ste substances;
(6) sample and seize any pollutants, effluents,
runoff, soil, or other materials or s-urscar.ces
which may reasonably be expected tc pclluze
the waters of the United Scaccs under vcricus
conditions or threaten the public health, safety
or welfare of the people of the-United States;
-------
APPENDIX F
(Page 10 of 10)
?.ST;JR:I or scnvicc
I hereby certify that a copy of the within warrant was
, . . _ 0 I i D . T~ I —• 'I
served by presenting a copy of same to fvoi'j.)'-1- \ I'ij.^O'Vr c..[ v**< l<»/l
an'agent of GoneraJL Motors Corporation (GM) on /\ijav5"*" 1 ,
J
iS7S, at the GM Willow ?.un vehicle assembly plant, Vpsilanti, ilichicar
(Usne of usrson ma}:in
------- |