REPORT TO EPA
MUNICIPAL COMPLIANCE
WITH THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
Prepared by the
Management Advisory Group (MAG)
to the
EPA Construction Grants Program
JUNE 1986
-------
TABLE OF o r is
Pages
FOREWJRD
DcB TrIvE SU RY i
MRC MENBERS v
L ri ‘ ID MR. IAWR J. JENSEN, EPA ASSISTN T
NISTR OR FOR WA ’ I , FRCL 1 MR. NE’rH MTTL R;
GIAI 4AN OF G vii
I. ir r oucri .i 1
II. OVERVIEW OF THE NP TI( AL P LLZJI A1’7r DISCHA
EflINATI SYST 3
II]. MUNICIPAL LIANC 11
IV. EPA ASSISTAI E FOR Oi IPLL INCE 19
V. ST1 ITE PA1 rICIPATIa IN NPDES PI N4 23
VI. O SIDERATIONS FOR IMP1 JVED MUNICIPAL Ctt4PLIPINCE 29
VII. RE O 1 DATIa S 35
LIST OF ABBREVIATIONS 37
-------
FORE
Managat nt Advisory Group to the Construction Grants Program (MPG )
The MarIag nent Advisory Group to the EPA Construction Grants Program
(MPG) has been an official advisory ccmnittee to EPA arid the Office of
Water since the passage of the Clean Water Act in 1972. MPG is canposed
of sixteen r nbers who serve for two year terms. The group has a
diversity of professional and technical backgrounds which include
wastewater trea ent engineering and manag nt experts, equipt nt
manufacturers, financial specialists, State and local governmant
officials, and environmantal and public representation. M bers of W G
are appointed by the EPA Deputy Administrator, are drawn frc n different
parts of the country, and serve without ccinpensation. The Office of
Municipal Pollution Control has direct responsibility for the
administration and substantive needs of MAG.
MPG’s Report on Funding
MPG’ s study of municipal cai liance began after the canpietion of its
last major report: “Future Funding of Municipal Water Pollution Control
eed” That report was distinguished by its exploration of alternative
sources of funding for municipal wastewater treatxrent, especially the
concept of State revolving loan programs.
Developi nt of the Capliance Report
This canpliance report was developed under the leadership of a MPG Task
Force on Catipliance chaired by Mr. Kenneth Miller who is now Chairman of
MPG. Special recognition is due Mr. Joseph Lagnese who is the principal
author of the report and who devoted long hours, effort and creativity
to the task. The views expressed in this report represent a consensus
of MAC n nbers, and are attributable to thEn.
The study leading to the report was greatly aided by the cooperation of
the Office of Water EnforcErent and Permits, specifically by Ms. Betsy
LaRoe who provided indispensable data, support and evaluations for MPG.
Executive Stuirnary - MAC Findings and Recarnendations
An executive sunmary which follows, lists the report’s findings and
recaruendations for convenience in referring to the major results of the
report.
-------
EXECtJPIVE SU’ 4P .RY
Background
The MAG Report on Municipal Carpliance enccxripasses a number of subject
sections which lead to a series of reccmrendations to be considered for
irrproved ccznpliance. A major part of the report describes the present
National Pollutant Discharge Elimination Syst n. The need for an
ordered description of the syst in layman’s language was seen as a
necessary basis for evaluating the current syst n and making
recamendations for any changes and improvenents.
Data is included in the report on the status of nuinicipal carpliance.
Other sections of the report describe EPA and State roles and activities
in bringing about caupliance. Organizational and procedural factors are
listed for considering nnproved municipal ccitipliance and a final section
consists of a number of recamendations to EPA for improving ccupliance.
Sunnaries of M G findings and a list of the recanrendations follcM.
Si .mmary of M C Findings
1. The National Municipal Policy (NMP), forimilated to bring
municipalities into carpliance with the wastewater treatient
requir rents of the Clean Water Act, sets out a viable policy and
strategy for ensuring that municipalities care into caipliance with
their discharge limitations.
2. A significant percentage of municipal wastewater treathent
facilities are not yet in caripliance with their final effluent
limits.
3. The current incauplete delegation of the NPDES program to all the
States results in NPDES program authority being divided between EPA
and the NPDES States, which is not the nost effective institutional
arrang rent for EPA manag ient and oversight of the Federal
program.
4. EPA relies heavily on Inanagenent strategies to achieve improved
municipal carpliance, which places a large administrative burden on
the Regions and States. This diverts resources that could be used
nore effectively for carpliance and enforc rent activities.
5. Managenent of the NPDES ccxnpliance and enforc rent program could be
greatly enhanced by the irore effective and ca iplete use of an
autariated data systen (FCS).
6. EPA and the States tend to pay too little attention to the
caripliance status of minor POIWs. This tends to undermine the
integrity of the national NPDE program.
1
-------
5. Minor ?YIS S Develop a n re attentive program to deal with
non—carTpliance by Minor PCII’Ws, so as to assure that all PCIIWs and
the piblic they serve, regardless of size, r nath mindful of the
official interest and n nitoring of their ccxr pliance
responsibilities.
6. u.nistrative Penalties Amsnd the CWA to allcM the use of
athtirastrative penalties for NPD violations, with procedural
safeguards as needed.
7. Up-front Civil Penalties Where non-canplying municipalities are
acting in good faith and are cooperating with Regional/State NPDES
enforc nt programs to correct the probl n, up-front civil
penalties should not be imposed except possibly in an escr
approach which u1d provide for return upon fu1filln nt of
canpliance caTTnitrrents.
8. Training and Operation Assistance Increase efforts, including
funding assistance, to encourage States to expand their training
and operation assistance programs, both for the benefit of
correcting existing noncar p1iance and for reducing the future
occurrence of O&M related non-canpliance.
9. Future Federal Funding in P Scheduling Provide for priority
grant status to be taken into account in Municipal Canpliance Plan
( P) ca’ipliance scheduling.
10. Incentives Place increased it asis on creating a large range of
incentives for P01W cciripliance, including official acknowledg nts
and neaningful recognition of both ex lary as well as sustained
canpliance efforts by POIWs, especially minor PO’IWs.
iii
-------
G EPS WHO ORKED c THIS RE ORF
Mr. Leon Asadoorian
President-Treasurer
Mathuen Construction Co.
Mathuen, W
*Mr Jazt s Borberg
General Manager
Hanpton Roads Sanitation District
Virginia Beach, Birginia
Mr. J. Edward Brc qn
State Water Coordinator
I ia Dept. of Water, Air,
and Waste Managarent
Des ‘kines, IA
*Honor 1e Jan Datpsey
Mayor of Auburn
Auburn, IA
*Mr Ronald P. Drainer
Section Manager
Grants àninistration
Illinois EPA
Springfield, IL
*Mr Robert P. Elsperman
President
Tariton Corporation
St. Louis, M D
*Mr George Erganian
M nber
Board of Public Works
City of Indianapolis
Indianapolis, IN
***Mr Walter Garrison
Vice President
Janes M. t’bntgarery
Consulting Engineers
Pasadena, C
*Honorable Marry Kinney
Forner Mayor of A].k x uerque
A1hxuerque, R4
* Current Mather
** Current Manber and Chairperson
Forirer Chairperson
*Mr Joseph Lagnese, Jr.
Enviror rental Engineer Consultant
Allison Park, PA
*Mr J. Leonard Ledbetter
Carrnissioner
Georgia Departnent of Natural Resources
Atlanta, G1
*Ma. Sue Lofgren
Partner, The Fonurt
Tenpe,AZ
**Mr Kenneth Miller
Vice President
Division of Water gineering
GI2M Hill
Denver, CD
*Mr Larry J. Silverman
Executive Director
Airerican Clean Water Assn.
Washington, DC
*Mr Edward 0. (Ned) Sullivan
Vice President
Bank of Boston
Project Finance Unit, HO-31-3
Boston, ?‘
*Mr Gerald H. Teletzke
Envirorurental Engineering Consultant
Soottsdale, AZ
***Mr Thanas Westoott
President
Westcott Construction Ccziçany
N. Attleboro,
Mr. Janes A. Hanlon, !‘ G
Executive Secretary
Environirental Protection Agency
40]. M Street, SW
Washington, DC
V
-------
June 4, 1986
Mr. Lawrence J. Jensen
Assistant Administrator for Water
Environmental Protection Agency
4th M Streets SW
Washington, D.C. 20460
Dear Mr. Jensen:
It is with great pleasure that I, art behalf of the Manage-
ment Advisory Group to the Construction Grants Program
(MAG), forward to you our just-completed report entitled,
Municipa]. Compliance with the National Pollutant Discharge
Elimination System.
MAG has worked diligently on this report for the last
18 months, after.having completed its earlier report, Future
Funding of Municipal Water Pollution Control Needs, in May
1984. That report was distinguished by its exploration of
alternative sources of funding municipal wastewater treat-
ment, especially the concept of state revolving loan funds.
The present report evolved around the need for ensuring that
municipalities meet the wastewater discharge requirements of
the Clean Water Act under the National Pollutant Discharge
Elimination System (NPDES), so that the goal of clean water
for the nation can be achieved. A great number of munic-
ipalities do not now comply with their discharge permit
requirements.
NAG found that the National Municipal Policy, which the
Environmental Protection Agency (EPA) developed to bring
municipalities into compliance with their wastewater dis-
charge limitations, represents a viable policy and strategy.
In a series of recommendations, NAG emphasizes that the
National Municipal Policy needs to be strongly supported and
vigorously carried out at federal, state, and local govern-
ment levels. Technical. assistance, training seminars,
conferences, and diagnostic evaluations are a few of the
methods that will be of assistance.
MAG also recommends that all of the remaining states that
have not accepted authority to administer the NPDES system
be encouraged to do so. Efforts should be made to reduce
the administrative and reporting burden on the states and
EPA regions. A truly national and simplified data base sys-
tem would facilitate such reduction and would allow the
shifting of more resources to operational efforts to improve
compliance.
v i i
-------
i. Iri DDucrI 4
In 1983, the Manag nt Advisory Group (MAn) to the Federal Construction
Grants Program initiated a special evaluation of the national municipal
water pollution control program. This effort focused primarily on
funding options for construction of wastewater treatn nt facilities to
meet the goals and objectives of the Clean Water Act (CW J, with special
r hasis on the need to prai te municipal financial self—sufficiency to
construct publicly c ned treath nt works (PCYIWs) and to maintain these
facilities in ccit pliance with their permit requirements. This study was
canpleted in May 1984, arid resulted in a report entitled “Future Funding
of Municipal Water Pollution Control Needs.”
Foll iing this study, MAG fonted another subcatirtittee to look at the
relationship between the national grants program and the persistent
problems associated with municipal caupliance and enforc nt efforts
under the National Pollutant Discharge Elimination Syst (NPDES),
especially noncanpliarice by PO’IWs that were planned, designed and
constructed with Federal funds. MAG turned its attention to this
subject because of its grc ing awareness that widespread noncanpliance
by YIWs was a problem and was also a reflection on the Construction
Grants program. This report delineates MPG’ s findings and makes
recaTuendations for enhancing ccnpliance by municipalities.
-------
3
II. OVERVIEW OF THE NATIONAL LOLLUTANT DISQ!A1 E ELIMINATION SYSTE 4
A. General
The Clean Water Act authorizes EPA and approved States to administer the
NPD program, which is the basic regulatory approach for ensuring that
wastewater discharges (nun.icipal and industrial) meet the r iir ients
of the CWA. The three operational el rents of the NPDES program are:
* Permits : The enforceable doci.ments that contain the effluent
limitations, as ll as n nitoring and reporting requir nts
to which dischargers must adhere.
* Car liance Wnitoring : The activities associated with
tracking facility caripliance with permit LLmits and
requir8Tents, which include: Conducting inspections,
reviewing required reports, canpiling statistical information,
ensuring quality control, etc.
* Enforc tent : The activities associated with evaluating
noncaipliance, initiating and escalating enforce nt responses
until the nonca liance is resolved.
There are currently 37 approved State NPDES programs, 22 of which are
also approved to administer the pretreatment program (see TABLE 1). EPA
retains the lead responsibility in the balance of the States, but shares
many of the in la Entation functions of the NPDFS program in a
partnership arrang ient with State agencies. Even where States
administer the NPDES program, EPA oversees State performance and retains
the right to initiate an enforc rent action in a State.
B. EPA Organizational Responsibilities
The NPDES permit and cczr pliance nonitoring functions are managed by the
EPA Office of Water Enforcetient and Permits (CMEP) under the Assistant
Administrator for Water. Responsibility for NPDE enforcerent
functions, h ver, falls into t separate offices of the Agency. The
( EP is responsible for non-judicial or “administrative” enforcatent
responses, such as notices of violation (Nays) and administrative orders
(ADs). Responsibility for judicial enforcetent actions is shared
bet en C JEP and the Associate Enforcerent Counsel for Water Enforcerent
under the Assistant A ninistrator for the Office of Enforcerent and
Caupliance r cnitoring (03)1). C ’JEP carries out technical functions
related to cases and OE) 4 carr es out the legal functions. ?breover,
03)1 shares its legal responsibilities with the Land and Natural
Resources Division of the Depar rent of Justice (DOJ). The EPA Regions
are organized in a similar manner, although the titles of the different
offices and divisions are not exactly the sane.
Figure 1 presents a diagram that shc s hc the EPA Regions and
Headquarters are organized with respect to NPDES permits, caripliance
nonitoring and enforcerent activities. Generally, enforcetent actions
camence in the Regions, and, where judicial enforcetent actions are
involved, are referred first to Headquarters (O N in conjunction with
G EP) and then to the DQ3.
-------
TABLE 1
ST T NPD S P9CC.P ST T’.S
10/4, 3
A orove State
PDES perrn
prog rarrt
Ap rove t3
reculate Fe era1
facil i.t. es
? p’rove
reere3te
;r ç
?1a ar’3
Cal fcrr. a
• C 1ora
Connect LCUt
Delaware
Ceorr t a
Hawa
• t 11 t no L S
ar
Iowa
Kansas
Kentuc’ y
1.1 r y I
U
sot a
M 55 SS L O L
‘ : sour
•Ucnt3fla
.e!raSc3
‘ce’.’ a a
:ew Jersey
\e ?:r
‘ rt CaroiLna
\ort’ akota
1 .
‘Creçon
Penn y1 ’:ania
‘Rhode Islard
Sc th Caroitna
Tenr’ess e
V e TT on t
Vtr;u Isla”cs
Vtrq tnia
Wash tngtofl
West Virginia
WtscnnS in
Wyon ’ttng
10 ‘i9/ 9
05/14/73
03/ 27/ 5
09/26/73
04/01/74
06/28/74
11/28/74
I 0i23/ 7
“1 ‘Oil’S
P 8/ 10 / 78
0 /30/83
09 / P5,’ 4
•i C) / / 73
C6/30 ‘ 4
r 5/OL/74
lO,’3C/4
06/ 1’ / 4
0 /l2’
C 9 / 19.’’ 5
C 4/ 13 ,‘ 9 2
10/29. -
l” / 19/ ’S
C6’13/ 5
0/ 11 /‘ 3
C) 9,’26 / 73
C6’30/78
09/17/84
( ‘ 6/ 10/’ S
12 / 28/77
01/11/74
06/30/74
03/31/15
11/14/73
05/10/82
02/04/14
01/30/75
10/19 /79
05 / 0 5 / 7 3
1 2 / 09 , ’ 8 0
06/01/79
09/20/79
12/09/78
08/10/78
09/30/83
1 2/09/73
12/09/78
) 1/28/83
0 /26/79
(‘6/2 3/8 1
11/02/79
08/31/78
C4/ 13/8 2
06, 13/80
09 ‘29/84
01/28/83
0 3 / 0 2/79
06/ 30/79
9/ 17 ,94
09/25 ,’80
02/09/82
05/10/92
11/26/79
05/18/8 1
10/19/79
06/03/81
03,12/81
08/ 12/8 3
06/03/81
09/30/83
09/30/85
06 / 01,/83
07/16/79
05/13/P 2
06/03/s 1
09/07/ 4
04/13/82
06/14/82
03/12/81
09/17/84
04/09/8 2
08/10/83
03/16/82
05/10/82
12/24/80
22
TOTALS 37 28
CC MPL TE State Prograrns (NPDES, Federal FacilitLes & Pretreatment 19
— ir d cateS State approved to issue General Permits
-------
FIQJRE 1
O R
OT OC pcrTvlrILS
I fFI OF * TDU
I ( )
KrEB F D4 r I
I J Dp uc 1
( P)
( . 41CIPAL p w.rri .
( 0 ( K)
w r i L5rVITIC$ —
ORCI NI ZATIONAL P P TIVE
NPDES
GDI A - JUSTICE
-1
- I i- LN N -: I
aD 3 OFT IC INA JpAL RES
OTM IA
tOi-SPCCIFIC
OTh R I0IAL ?ICITJTTIES
-------
- TABLE2
TABLE 2
ESTIMATE OF EPA RESOURCES
COMMITTED TO COMPLIANCE/ENFORCEMENT
FY 1985 FY 1986
( Operat3.ng Plan) ( Qperatxng P1ar i ”
FTE $ FTE 5
(thousands) (t-tousa. i )
MUNICIPAL ONLY
Mur1ct al.Ja5te Trestment Fac .lLty
Cor t met ron :
EPA 1ead1uar:ers (OMPC) 106.5 24,339.9 106.5 25.574.
£P egLonS (WMD) 440.2 31,316.2 416.7 15,315.4
Muruci a1 Jaste Treatment 3&M:
:? leadl’Jarter3 (OMPC) 4.5 214.8 4.5 230.7
EPA Reg .3 s ( MD) 30.5 1,35 .L 30.0 1,263.7
3perat r Tra .tung Graits 21G.O 250.)
( 104) (eriac e:,
MUNICIPAL AND INDUSTRIAL
Water Quali_/ t for;et nt:
EPA tIeal3.larer3 (3 EP) 30.9 7,250.2 31.7 4,023.5
E?A Regions ( J’4D) 351.1 12,723.5 360.6 13,143.
ENFORCEMENT: ALL AGENCY PR0GP MS
E 1f3rcement Poficy and 3 er tions:
CPA Heairl .lartems (OECM) 121.3 7,323.9 95.3
EPA R gior s (ORC) 145.3 5,922.7 149.7 € ,0.,3.2
GRANT ASSISTANCE TO STATES
Federal rartts 4ater Pollution
Control. Programs tinder 1362 61,3’..3.4 64,9::.:
(act tal)
1. (Definition of FTE) Full—time eluivalent (workyears) is the
number of years t t a permanent full-time md/or oti er-thari-
permanent full—time empldyees . or( at their basic rate of pay.
2. In addition to State Progra i Grants under 136 of the CWA,
States that have fully funded the Lnanmgeiflent’ of t eir delegated
construction grant prograns with fuuds avatlabe under 2O5(g)
may use any remaining ç205(g) funds for corto1 i nce/enforcemen:
activiti as.
* Not actial unless specifically noted.
PrLor to C .,ngressional addonS.
-------
5
E. Basic Tools for Identifying Noncanpliance and Determining the
Appropriate Enforcetent Action
The NPDES cai liance and enforc ent program is managed by the Regions
and States based on a n .m ber of car lex regulations, policies, and
guidance doc mants. The following is an abbreviated description of the
key program docurrents, how they are used, and how they relate to one
another.
1. Discharge nitoring Reports ( 4Rs): How EPA/States Receive
Information Fratt Dischargers:
The NPDES program functions primarily on the basis of voluntary
carpliance and reporting by the discharger. Each perinittee is
expected to canpiete a TTonthly DMR, which is the vehicle by which
each discharger reports its performance based on the results of its
self-rtonitoring. A permittee is required to suJ nit its DblRs on
either a nonthly or quarterly basis, depending upon the specific
reporting requir rents in its permit. Permittees are also required
to report certain kinds of permit violations at the tine they
occur, usually by phone. Consequently, EPA and the States rely
largely on the honesty and integrity of dischargers to report their
permit violations. Violations can also be detected by inspections,
but inspections are used primarily to verify instances of reported
noncarpliance and to support forir l enforcei nt actions.
2. Enforc rent Manag rent Systen (E7 1S): How EPA/States Review
Permitee Canpliance Information:
The NPD S regulations require approved States to have procedures
for receiving, evaluating, and retaining all reports that
permittees must sutinit. In 1977, EPA published its original
Enforcetent Manag tent Systan (E 4S), which set forth a process for
the EPA Regions to follow in collecting, evaluating and translating
catipliance information into appropriate enforc nt responses. The
States were encouraged to follow the Federal example, but were not
required to do so. In terms of actual practice, it appears that
the Regions never uniformly adopted the principles and procedures
in the original E , and there was relatively little State follow
through. reover, the process in the 1977 E 4S helped the Regions
determine the “appropriate” enforc t nt response, but did not
contain any guidance about the “tineliness” of these responses.
The ‘4S guidance was recexttly revised and updated. It is now
required for all administering agencies--EPA and States alike. It
also now specifies tine frarres within which administering agencies
are expected to initiate enforc rent response for instances of
“significant noncarpliance” (to be discussed later). The purpose
of the E 4S is to prarote nationwide consistency in how and when EPA
and the States respond to different kinds of noncanpliance. The
revised version sets forth requir rents and procedures for EPA and
States which can be sunmnarized as follows:
-------
vloI.AT1cN RFVIEi’J ACfRt4 cRITERLA
TABLE 3
DischarO. MOnitOliflo
•.ports (PnSSI
Pratrs.tsenl PeiortI
Co.illance Sch.dute U.oort
Final PronraSS Psoort
All Additional CanonS
10 dayS ouerdue Of lncn—nI.I.
or not unlenstandaDla
10 days overdua or
or not undaritaitd•bia
10 dayS Onar4i.a Or inconfliet .
or not und.retandable
10 4ayS c •nd .e Or inro.Ctl .t.
On not .ndanatafl4ahlS
c. Cnforc.0nt Orders
Any Other Paaulia.anta
Cit.d in IIt• Enlotce.aitt
Ord.r
d. Oth.f Violation.
lailur. to Iaoleant lasu.
o.raila. anact erdIaanc..
laepact lus) local pratrsat.ent
pro ra. r.jIrants.
Failure 01 Ut• P01W to •iitoncs
IU pratr.ato.nt ta ulraaitt.
Violation of narrativ. rioulta-
..nts ((naccural• rac0rdk.e in .
lnallaOu.la tr..ta.ftt olani
op.ration md •sint.nanc.I
railura (0 1oIlo P.St
Na..aq.n.nt Practice. li.•..
reaulr..enit to d..lon SPCC
olans •ni t Inla. .sit PMPI
Lily violations durino ii .
oua rear
Violations lot wbick a forsal
•nforc.onnt action I. rmc spid•d
by Ii. t.lone iit I..p.a..
iwids.
• U.ctud•e bact.fi olo,(cel counta a4 .I.cai coilfnn l. colon.
and than t par. t.ra Ion iich crttarta an. dIac,.ttOnsry
In Ut. •b.anca of intanl. •ffluant 11.11. in an •nlensa..nt
ordan. p.i.it lisle. should ba tracked and •ralu.(ad bse.d on
(ha crltarla ton polsie niotsilona
vi ni a tout OF OTNF•
VIOLATIONS OF IFFLUENT LIMITS
a P.rsit Violation. Critarts
30 Day Ausraqe Violations • 3 viol. eionu in b ountha
7 Day Av.raqa violations Two vlolstto0a in a nth
Daily sa.i .u.violatiOfla Four violation. in a nth
• 4 0 or ‘11.0. or if conrlnuoo.
nit0rlnq CIIISTIa are ..c ..ded
• Itors water Four lions ha .tlactiv. iimi
Any L..lt Causas or ha. potential to cause
a watar quality or a health
probila or the Violation is 01
concarn to the Director
b. [ nforcaonflt Ordar Violations
Any Ll.it Cited in the Any viola ton duriny thu quarter
tnforce.eflt Ordaf”
a Pratreata.rt Proor.a
- I.ple*ent at ion
-Enforcesant by POT
b C.n .r.I P.r.jt Conditions
-Record K.aflInQ. O CR
-S lip
VIOLA? OIlS OF COMPLIASC(
Start CoriatrucitOil
40
days
past aChadulad data
InS Conatructioil
Attain final Co Lisnca
All Additional Mit.SlOnaa
40
days
paat echaduled data
VIOLATIONS OF UCPOPTING PFOSJIPCMTMTS IN
OPOF as
PIPRITS AND (NfOSCFPI
ANNUAL P(VItw
The lila of any .a or p.ralIIsa or .iner paraittea of concern
• itould ba r.viau.d at last OflCS in a twalve .onhii porlod. raqardl..a
of vhethan (ha above criteria kava baan aaea.dad
-------
TAALI I
1’ . 01 ________
A. Vto)att ol puit da q*i
I • VinLat Iai 01 tIi* UMtau
a. 10 — aa 26 C. fic
b. 30 a.g 4# itM ld .r icI I IC
C. Mr v1olatj wIth 10 I.aiLh
—
d. Ik w*I I b ”as wIth 10 or
ai th I ta It 1*3
a. IAq rwIttad dtidi.r s with 10 or
I th I ta lILA)
I. Ik*a t ptIwci i with 10 or
lth 1 ct. 111*4
•. Ut t ktbyl Nt1 t
b. b ti t1 %
c. Mtafm ?I i 3l.i II, 1. mi sIt
_ , 4 _ • _ d L . t _ ’.ll.— )
a.
3. ta 1 W 30 days oc i
a. lia S I 1& ICII rta ID )
b. staaa rta
a. 01 p1 I
4. h., ta
a. I, 2sta or ttci t ta
4. Othur p, t eusdi L.i
a. VuIhu to %‘t a p,str.. nt
or for $,dt,,ct l rw
b. VIolatt ol , 1T.tIas rsa tr tu
e. y Mr .Io1att 01
t tI Otr.c toi-
TAAIZ (O )
S.ctt s 01
iI t I
a. ltart wta tI
b. d n tIo, Mt)t i,
c. Attain fl, .1 II ior lIorl. II
r ia oqr)
0. Mr d l. NLI.ator..
3. ta IM. 30 y, or
a. bI.ct, Itot1f rta ( 1
b. Pr.tru. It a iortl
c. ost 01 FInal I I s
0. Wwr **
a. Zi Ima or I fIcI. t t
Cat y •
I a
I “a
I
I I .I- sa
UaCt C t
ct l oF
s iiatlcm C.t.cjoay 9C
“a
I “a
II ..
If .
II )%S
II .
yvr. 01 VIol.tt
S. Vlolat1o of b ...t dar lIrfItas
I. VjoIatI of £fll ,t Lilt.,
a. ad 30 day ag as th
b. tr .toL.tim, with 10 or Pw.lth
3. Vtolat1a 01 1L ed la uIIl.utors. b 10 day. or ei
11* 1 -“a
A- . (If halt I. —
•tcla ’t a. curr.Mt
Is,rlcrl nat.ht. It La
C a 1y I i t) f* ar.
I or 4$ th .)
(IA I .s
2. VIoI tI of h1 na 8dw jl. Ill .sI u by II day. or s
tin I y.a
It S 2 “a
(IS 2 a
II IC II m
113
it s
Its
H J— a
1
I
II
11
“a
“a
“a
* tic
lID
Ito
I ID
11 10
lID
110
Ito
‘ (to
tilt
(‘“I
is s,
II no
II
1112 II J”a
(IA I “a
4. Mr audar rso$r’t.s
a J-.fu4tcIaI dar.
*- inI.tr .tIa dar . or tJ.1r stat. iuIvaI .ntS
t lIr —
-------
7
The n z regulation also provides for a s i-annua1 Statistical
Si.nwiary Report (SASSR), which is to report on the ntmter of major
permittees with t or nore violations of the sama rronthly average
permit limitations at the sane pipe in a six nonth period,
including those otherwise reported in the QNCR.
It is apparent that a primary purpose of the ( CR and SSR are to
provide information to assist EPA in carrying out its oversight
responsibilities, which includes assessing the effectiveness of
State and Regional NPDES capliance activities. It should be noted
that the CRJSSR requir nts do not establish criteria for
selecting enforc rent action, nor codify enforceient policy which
r nains under EPA discretion. The CR/SSR and E}IS are
capl ntary in their intended application. The CR/SSR
establish criteria for tracking major permit nonccnçliance, while
the E74S is used to guide EPA Regions and States in responding to
all instances of nonca liance. Hc iever, since the CR reports
instances of major permittee noncanpliance that exceed certain
thresholds of tine, magnitude or freguency, it is reasonable to
expect that EPA and the States will place highest priority on
resolution of these instances of nonccxripliance. Regardless of
whether a violation is listed on the CR or SSR, any violation of
an NPDES permit is a violation of the Clean Water Act (CWA) for
which the permittee is liable.
4. Significant Non ipliance (SNC): H i EPA/States Manage Their
Programs to Place Priority on the r’tst Serious Violations:
In an effort to manage the NPDES program nest effectively with the
limited resources available, EPA has developed criteria for
tracking and acting upon priority violations as irected by the
Strategic Planning and Manag nent Syst n (SPMS). These violations
have been defined as a subset of those instances of nonca liance
reported in the 4CR, and are called Significant Nonocmpliance
(SNC).
According to EPA the SNC designation is used for t purposes.
First, it is used as a rnanag ient tool for canputing EPA’s national
statistics on levels of noncaupliance for the Agency’ s Strategic
Planning and Managarent Syst n (SPt’ ), and for tracking instances
of noncaripliance until they are resolved (either returned to
2. SPMS is a syst n that is used to identify and manage EPA’ s priority
program ccrrrnitrrents. The report provides a process for the Agency
to identify neasures of success and track progress against them.
Each quarter, the Office of Manag nt Systems and Evaluation
publishes the report using information provided by Headquarters,
Regional Offices and State agencies. The Office of Car liance
Analysis and Program Operations (in OEU4) is responsible for the
enforcement sections of this report.
-------
TAET
PCS USAGE BY STATES
Supp1 es
Enters Data Interfaces to Re’ ::-
NPDES STATES Directly with PCS for PCS E--
I Connecticut X
Rhode Island X X
Vermont X
II New Jersey X
New York X
Virgin Islands X
III Deleware_ X X
Maryland
Pennsylvania x
Virginia X
West Virginia X
IV Alabama X
Georgia X
Kentucky X
Mississippi - X
North Carolina x
South Carolina X
Tennessee X X
V Illinois X X
Indiana X
Michigan X X
Minnesota X
Ohio X
Wi sco nsln x
VII Iowa
Kar.sas X
Missouri X
ebraska X
VIII Colorado X
Monta’ a
North Dakota
WyOT1ifl
I X Californ a
Hawaii
Nevada
X Oreaor
Washintiton —— —
Subtotal: 15 7
r’Jon—NPDES STATES
I Massachusetts )
Maine X
New Hampshire
IV Florida
VI Arkansas X
Louisiana X
New Mexico
Ok1aho ia x
Texas
VIII South Dakota \
Utah
IX Arizona X
X Alaska
Idaho —
Subtotal: 2 1 13
TOTAL 17 8
-------
TABLE 6
REOUIP D DATA TO BE E’:TERCD INTO PCS
Information Type Malors Minor 92—SODs Ot ’er “ .‘ ers
Permit Facility Data x x x
Permit Event Data X X X
Inspection Data x x x
Parameter Lir’its and X
Pipe Sched.ule Data
Compliance Schedule X X
Data
D 1R tleasuretfleflt Data x
SignifiCant , :oncornp.Lar Ce x
Flag
Enforcement cti n Data X
(Enforcertent Action Data.
Compliance Schedule Data,
and Interim Limits Data
from all active for al
enforcement actions)
Enforcement Action Data X
(Type Action, ENAC;
Issue Date, ENDT; and
Date Compliance Required.
ERDT; from all active
formal enforcement
actions)
Pretr atment Approval X x x
Nation al Municipal Policy X X X
Data
-------
9
In addition, there are t basic subsets of formal enforc rent
responses: A ninistrative and judicial:
a. inistrative orders (AOs): Generally used as the first
formal response because they are expedient and econai ical to
issue; and
b. Judicial referrals: Generally a lengthy and nore costly
court process involving litigation, either by the State
Attorney General if pursued by a NPDES State, or by EPA and
txxr, if Federally pursued.
Case referral is typically reserved for particularly serious violations
or cases of recalcitrance. In FY 1984, for example, there were well
under 100 judicial C U referrals in ccmparison to over 1600 ADs issued.
The Clean Water Act does riot allow EPA to assess penalties for
violations except through the judicial process. Because court. action is
so slow and cuwbersar , penalties appear to have been of limited value
to EPA thus far. Sczre States, however, have the legal authority to
iir pose administrative penalties, which greatly enhances their
administrative enforc t nt capability. EPA is currently seeking
airendrrent of the G to give the Agency administrative penalty
authority.
-------
11
III. MUNICIPAL (Xt1PLIANCE
A. History and Current Status of Municipal Noncarpliance
The 1972 Clean Water Act established a carcpliance deadline of July 1,
1977, for all permittees to rr et the requir rents of the Act. By 1977,
only about 80 percent of major industrial dischargers had canpieted
installing the necessary technology, and the Agency began to
aggressively enforce against major industrial dischargers that failed to
neet their catipliance schedules. As a result, today about 94 percent of
the major industrials have ccxnpleted the construction needed to achieve
the final effluent limits (FELs). As of March 31, 1985, C ICR reporting
period, five percent of these major industrial perinittees that have
canpleted their facilities and are being tracked against FELS, were in
SNC. Despite the high level of cartpliance ng industrial dischargers,
lack of ca ipliance with categorical pretreath nt standards r uiren nts
by industrial dischargers may in part be contributing to municipal
noncanpliance.
On the municipal side, f r than 40 percent of major ITunicipal
d.ischargers caripleted construction to n et the O secorx3ary treathent
r uiraients by 1977, but the Agency did not adopt an aggressive
enforcerent posture against municipal dischargers. reover, Congress
extended the municipal caupliance deadline twice: first to 1983 an then
to July 1, 1988, for municipalities that had applied for a §301(i)
extension in 1977.
Congress also reduced the anount of funding per fiscal year, but
continued funding through 1985 and legislative proposals indicate that
funding will be continued into the early 1990’s. The priority systan
and grant procedures encouraged municipal dischargers to proceed in
accordance with grant availability. Wiüle there is ccn 6 ensus that the
grants program has provided an incentive and catalyst for construction
of facilities throughout the country, the uncertainty regarding timing
and levels of grant awards and other administrative prob1 ns has, in
sate cases, caused certain municipalities to delay construction and
caripliance.
Today, only about 65 percent of the total major municipal dischargers
have cci leted the construction necessary to ireet statutory trea rent
requir 1ents. As of the Septanber 30, 1985 period, the noncaripliance
figures were as fo1lc s:
3. Section 301 (i) of the CWA established conditions for EPA to grant
PCIIWs extensions to the 1977 deadline of the 1972 C for final
permit caripliance, if filed by June 26, 1978.
-------
13
B. Causes of Municipal Noncar lianCe
There is very little information which accurately substantiates the
underlying causes of nminicipal noncanpliance. The EPA Task Force Report
on 4&M (August 9, 1984) suggested that approximately 72 percent of all
canpliance problems at operational F(lNs are caused by design and
influent related limitations, and the remaining 28 percent are due to
O&M limitations. This fi.rth..ng is of limited value, hcMever, because it
is not clear h this qualitative asses rent of noncaripliance relates to
noncaipliance as it is determined and counted by regulatory agencies.
It was apparent to MPJG in this evaluation that the lack of i re
significant delineation and quantitative data on the causes for
noncaipliance was and is a serious limitation to a successful cai p1iance
achiev TEnt program for POIWs.
The limited reference infonMtion on the causes of PCIIW nonca pliance
causes, together with the experiences and observations of M G nEnbers,
suggest that the major causes nest likely fall into the fo1lc ing
categories:
1. Inadequate operation and maintenance (O&M) due to insufficient
revenues, lack of skill and/or kn 1edge, or poor practices;
2. Inadequate industrial pretrea ient;
3. Excessive infiltration/inflc q (I/I) due to deficient s r
system, inadequate rehabilitation, and inadequate
contrail regulation of s er system use;
4. Lack of adequate facilities to treat discharges of sanitary
wastes, ccinbined storm overflc s (CS)) and/or
infiltration/infl i (I/I):
5. Inadequate facilities to maet secondary treathent or advanced
treathent; and
6. Lack of appropriate institutional structures at local level,
such as independent carinissions and authorities, with the
pc rs necessary to finance capital and operating costs and to
efficiently manage facilities and systems.
Relating to the O&M problems caused by insufficient local annual
revenues, it is of interest to note that a recent user charge survey of
80 Federally funded projects by the Office of Municipal Pollution
Control (C*1 ), revealed that the user charge systems were not being
properly maintained to assure adequate funds for satisfying increased
costs of O&M and adequate allowances for depreciation/replacement.
Evidently, the original cantatient by these grantees to maintain their
user charge systems adequate to sustain carpliant performance is not
being realized. As such, the Federal inves rent in these OIWs, as well
as carpliant performance, is possibly being jeopardized.
-------
15
The general goal of the policy is to establish enforceable schedules for
car 1iance with the 1988 deadline by the end of FY 1985. Where there
are extraordinary circumstances that make it iir ossthle for an affected
P01W to neet the July 1, 1988, deadline, the a nin.istering agency is
expected to establish a fixed-date schedule to achieve catipliance in the
shortest, reasonable period of tine thereafter. Agency guidance to
support the policy specifies that any such extension beyond July 1,
1988, nn.ist be incorporated into a judicial order.
The places priorities for EPA and State ccn pliance and enforc nt
efforts on:
1. PCIIWs that previously received Federal funding assistance and
are not currently in caripliance with their pezinit limits;
2. All other major POIWs; and
3. Minor POIS Js that are contributing significantly to water
quality iinpairnent.
In addition, the guidance sets forth a tiore detailed approach for
handling the various categories of P01W noncaripliance problEns as
follcMs:
1. Canpleted PCYIWs not neeting their Final Effluent Limits
( FElLs) : These are POIWs that could rreet their permit
requir rents by using better O&M procedures and practices.
The guidance reccmrends the use of in-depth, diagnostic
evaluations to identify the causes of noncat!pliance and to
prepare a CCP. Regions and States can use ACs or other
appropriate enforc nt rrechani ns to require suthtittal of
CCPs. Where P(YIWs have received grants after Dec ber 29,
1981, the guidance recamends use of the one—year 5
certification requiratents in lieu of the CCP process.
2. Municipalities in the Grants Process : These are P(YIWs that
already have an approved grant and those that are on the
fundable portion of the State project priority list. Where
PCTIWs have an approved S201 facility plan, they do riot have to
develop a separate MC?. Regions arid States can establish
schedules and interim effluent limits by reissu.thg the permit
and/or issuing an AC or §301(i) extension. (See footnote 3.)
3. Unfunded Municipa1iti s : These POIWs nuist develop MCPs, and
the Regions and States can use information requests, ADs,
judicial orders, or equivalent State actions to obtain
suthiittal of MCPs and to establish schedules for capliance.
5. Requires grantee to certify after one year’ s operation follc ing
initiation of operation that the plant performs according to design
intent and permit conditions, or otherwise catinit to an expedient
prcgramn of necessary alterations.
-------
17
4. Both Regions and States have limited resou.rces to handle a
project of such magnitude;
5. Tt re are continuing coordination problems bet en
construction grant activities and the NPDES enforcai nt
program;
6. It is difficult to assess progress in dealing with canpieted
PCTIWs because these activities tend to occur through ongoing
programs rather than under the aegis of the NI P; and
7. The large n miber of cai liance schedules n being established
is creating a longer-term rk item to track ccit pliance with
these schedules and take enforc Tent action where schedules
are violated.
The report’ s reca inendations dealt primarily with manag nt strategies,
as was the intent of the Program Evaluation Office responsible for the
report, and did not address the r dies for alleviating the underlying
causes of P01W r n-canpliance.
-------
19
IV. EPA ASSISTT N FOR (XtIPLThNCE
A. General
EPA assistance to bring about caupliance under the National Municipal
Policy has been noving forward on several fronts. These efforts include
the foll ing:
1. Project certification;
2. Operator training assistance; and
3. Incentives.
B. Project Certification
Project certification is a requir nt for all grant funded projects
awarded after Decanber 29, 1981. It requires that the grantee -certify
that a project does or does not meet the design specifications, effluent
limitations and all other project performance standards as determined
during a one year performance period fo1lc ’iing initiation of operation.
Construction grant regulations require that an engineer or engineering
firm provide services during a one year performance period to:
o Direct operations of the project;
o Train or provide training for operating personnel;
o Prepare curricula and training materials;
o Revise O&M manuals to accarm date actual operating
experience; and
o advise whether the project is meeting performance
standards.
If at the end of the one year performance period the grantee cannot
provide affirmative certification, a corrective action report and
schedule must be developed. This report must include:
o An analysis of the cause of the project’s failure to meet
performance standards;
o A schedule for undertaking corrective action; and
o A new date for certifying to the reviewing agency that
the project is meeting performance standards.
As of October 11, 1985, 484 projects had initiated the one year project
performance certification and 116 had cat leted it. There is no data
available on h many of the non-caplying P IWs subject to the b 4P will
be grant funded and subject to such useful certification. It is
obvious, hc ver, that this post-1981 stipulation of the grant program
will contribute significantly to reducing non-ca liance of facilities
constructed with grant funds.
-------
21
D. Incentives
EPA has recognized that the best type of caripliance program is one which
is braced enthusiastically by all participants. If support can be
built anong the general public and elected officials for excellence in
waste water treat nt performance, many non-carpliance problai s uld be
solved. To this end, EPA has been developing a National Operation and
Maintenance cellence Awards Program that will “recognize )I’iJs ar
local managa ent officials whose efforts are resulting in outstanding
O&M performance and continuing high levels of effluent caripliance.” It
is patterned, to a great degree, on an award program that Region V has
had in place for a n .miber of years.
There will be six awards based on plant design capacity: One each for
0-1, 1-10 and +10 million gallons per day, using secondary and advanced
treatmant processes.
The program was announced at the 1985 Water Pollution Control Federation
(WE F) Conference, with the first national awards to be presented in
October 1986. It is anticipated that this will provide the necessary
tima for States and Regions to select naninees and allcM a caririittee to
make the selections. The criteria for selection are still beir
developed.
The program is also expected to enhance any State and/or Regional awards
already being given, and the new Regional awards programs u1d “mirror
the national awards program categories to the maxinn.irn extent feasible.”
It is expected that the awards cer nies will provide as nuch public
exposure as possible with each Regional ±ninistrator presenting the
State ncminees’ award certificates to the mayors/public rks directors
and the P(YLW staffs in their cantrunities. A full madia involv nt
should be undertaken.
EPA will rk with the WPCF to give substantial exposure for the
national awardees at the WPCF Conference as ll as in other
organizational journals and publications.
-------
23
V. STATE PARTICIPATION IN NPDES PI )GRAM
A. General
The issuance and enforcerent of NPDE discharge permits is not an
isolated activity. In order for it to be effective, it rraist be an
integral part of a water pollution control program.
The isportance of the NPDES permit program lies in the fact that
permits are the major tool used to ensure that dischargers do not
individually or collectively cause violations of water quality
standards.
In setting permit limits and the actual issuance of permits, there is a
distinction between approved and unapproved States. t’breover,
circimtstances regarding the degree of State delegation vary anong
Regions, as is ex tplified by Region VI where no States have approved
NPDES programs and Region VII where all States have approved programs.
The degree of States’ involv rent in program operations where EPA
retains priir ary responsibility is also highly variable. %‘thile the State
NPDES program is subject to an all or nothing approval, many activities
in an unapproved State are shared between EPA and the State by
agre rerit. Because of the difficulty of characterizing these
arrang rents, this discussion will deal only with States which have
approved programs.
B. Overall Program Managetent
As with nost other specific programs, the EPA may approve a State to
assi.me NPDES program responsibilities if the State’ s program neets the
rninirrn.m1 requirerents in terms of statutory authority, rules and
adeinistrative procedures. The acceptance of the State program is
embodied in a formal agreerent between the State and EPA, characterized
as a n rorandum of understanding. The agreenent sets out the general
long term conditions of acceptance.
an annual basis another process unfolds. The Administrator, in
conjunction with the Assistant Administrators, develops an annual
guidance docwnent that identifies long and short term environnental
objectives and priorities. Based on the priorities articulated in the
National guidance, the States prepare annual State programs and
associated workplans which identify their water program plans for the
caning year. The State and the Region then finalize negotiations on the
State output carinititents for the caning year. These ccmnitnents are
finalized using a variety of tools in the various Regions, State/EPA
agreerents, enforcerent agreerents and program grant conditions.
EPA recently issued a Policy on Performance-based Assistance, which
gives direction to the Regions in their rrcnitoring and evaluation of
State performance in carrying out the annual plan. This policy, along
with other program specific guidance, form the basis for EPA’s
rnanagerent and overview strategy to ensure Regional and State
performance.
-------
25
The review can also include a nere detailed evaluation of permit
issuance, inspection and caripliance activities, as well as a review of
files to determine whether actions were taken in a timaly manner arid
properly doct nted.
D. Data Manag Tent
Information about dischargers and their performance is generally
maintained in the Permit Catpliance Syst6n by EPA. As had been noted
previously, nest States do not now use PCS in their manage nt of the
DS capliance/enforc nt programs. The reasons for non-participation
vary. Sate States had an existing but incanpatible State syst n prior
to the availability of PCS. In other cases, States have determined that
PCS will not satisfy State needs for a data manag ent systan. While
States may not utilize S, they still tran nit the information to EPA
for entry. Since the information maintained on S is all EPA-reguired,
it is available to EPA, but often only if EPA maintains it.
Other Federal data syst ns maintain information critical to managing arid
auditing a water program. The construction grants program data base,
the Grants Information and Control Systan (GICS) arid the water quality
data base (STOREr) both contain suppl ntal information. These systens
are also nore ccimenly maintained by States, although neither is
universally utilized.
On the issue of the collection and analysis of scientific information,
EPA has provided rtore guidance in the form of a nonitoring strategy,
analytical procedures and other relevant guidance. In the case of
analytical and scientific data, a number of sources including
dischargers, universities, and other State arid Federal agencies gather
data.
Performance review functions also have been established in the
analytical area. EPA annually reviews the States’ data gathering and
quality assurance activities. In addition, there is an ongoing effort
to rteasure and improve the quality of data received by dischargers
th nselves. Sançles are developed by EPA and sent to pexmittees as
“unknown” for analyses and a quality check on local procedures. States
also utilize operator certification, laboratory certification arid
inspections as additional neans to improve and maintain data quality.
E. Canpliance l ’knitoring and Achiev nt
Once the permit is issued, the focus is on ccznpliance arid enforc tent.
Several key activities are available to States to determine facility
canpliarice. States receive and review information as it is
suthiitted each rronth or each quarter. Deviations fran permit
reguirai nts are dealt with in accordance with regulations, guidance and
agreer nts. If a facility has a schedule of canpliance, progress imist
also be rroratored either through notation on the rronthly report or by
noting the caiçletion of milestones such as suthtission of plans for
improver nts.
-------
27
In sar States, the option of administrative penalties exists. This
action can be particularly effective where the cost of carpliance does
not greatly overshad the penalty which can be uiçosed.
final action that the State can take is to refer cases to the
State’ s attorney general to all for resolution by the courts. Since
approved State programs are required to have substantially equivalent
penalties, the major distinction is that the cases are tried in State
courts.
In dealing with noncatipliance, States can utilize sanctions other than
penalties to solve or encourage resolution of problems. One example is
sewer extension limitations or bans on hook-ups, which have proved to be
a very effective means to sti ilate r nicipa1ities to make iniprov nts
to inadequate systems because their i osition places limitations on
growth.
The certification of operators is one caiuon State practice which is
designed to ensure that operators are qualified to operate their plants.
These programs can be sh n to provide a substantial improv rent in
expertise if they are aggressively administered. In particular, a
willingness to suspend or revoke certificates for inadequate performance
rks well and lends credibility to the certification process.
It is important to note that the preceeding discussion of the States’
role and responsibilities in the NPDES program focuses on National
guidance. Hcx iever, I’W did not have the opportunity to evaluate either
the effectiveness of the national guidance, or the extent to which
individual States augment it. Fran our individual experiences and.
ir uiries, h ver, we are inclined to believe the States, within their
budgetary constraints, are striving to utilize and productively augmant
EPA guidance to achieve improved caupliance. We also believe there is
recognition in the States and Regions that there is a limit to the
an unt of guidance and reporting which can be imposed on the States.
-------
30
As much as there r nains concern for the adequacy of
construction grant funding, we have difficulty understanding
the disparity between the funding effort directed at capital
investh nt in contrast to that available to adequately support
ca liance ntnitcring. Specifically, failure to suppletent
the Federal dollars expended for construction of PC/IWs with
funding for ongoing ccznpliance of catipleted facilities will
frustrate the intent of the law and the purpose of the
construction.
As d nanding as this task of ccv liance nonitoring might be,
its full and car lete accaTplishnent appears to be achievable
given the relatively ll universe involved, the capabilities
of today’ s autateted data syst ns, and the potential of the
United States Government. We stress this concern for
catipliance rroru.toring because of the essential nature and
dependency which it holds to enforc nent and ultimate
caipliance achiev ent.
We recograze the need for setting priorities in the cmpliance
nonitoring and enforc ent programs for PCIIWs. In fact, we
agree that priority should be in order of majors, PL 92-500
minors, and other minors, as EPA policy is based. Hc ver,
there is a concern within MAG that, as a result of limited
resources, minor PO’IWs approach a zero priority status, with
very little attention being given to these naller P(YIWs.
Without attention, particularly of Ct’s reported violations,
the minor YIWs can becare suspect and in fact indifferent to
the NPDES program, which has the potential to undermine the
public’s perception of the national effort. The retedy need
not be in altering the existing manag ent strategies to
include minors, bit rather might be in the use of separate,
less intensive resource strategies. These might include
requiretents for self-enforc rent responses to IY”IR violations,
such as local public notice of violations. Another
possibility would be the use of a different mailing address
and review attention for EliRs reporting violations, as opposed
to those not reporting violations.
C. Penalties
A primary need in the legislative area, nost apparent to MAG,
is in the area of administrative penalties. Under current
law, EPA is required to pursue court action to seek penalties
for NPD violations. This is tine consuMing, costly and
generally ineffective. It is recognized that penalties can be
an effective deterrent to permit violation, if the penalty
policy is unccxnplicated, can be expediently administered, and
is uniformly and fairly applied.
-------
31
In our judg nt, it is now tine to give EPA qualified
authority to utilize administrative penalties for violation of
permits. thile court actions can be an effective punitive
rreasure, the ability to seek administrative penalties will
provide EPA with an effective way to deter non-capliance.
Proper restrictions on this pcF.s’er canbined with fair appeal
processes will enhance EPA’ s enforcEtent capabilities without
violating the due process rights of dischargers.
In another penalty area, NAG questions the effectiveness of
up-front civil penalties in judicial enforcemant actions
against municipalities. tnile we understand the need to
provide exfflnples of the consequences and repercussion of
non-caupliance, we r nain concerned that in general, penalties
are not conducive to cooperative catipliance, which in the end
usually best serves the goal of achieving canpliance.
Further, penalties do not appear to act as an effective
deterrent to others because each offender usually perceives
its situation as unique. Finally, the reason for
non-caupliance, particularly in municipal cases, is often
related to the carinunity’s financial capability, and using
econanic sanctions appears to be counter-productive in these
situations.
The use of penalties becates n re difficult when uniformity
requires that the anxunt of the penalty be determined on the
basis of savings accruing fran the non-canpliance, as is
custar ry for industrial enforceient actions. Using this
approach, the penalties for municipalities can becate so large
that they caiprise a significant portion of the required
capital costs for abat rent. The attetipted canprcxnise on this
procedure only tends to contribute to the sense of inequity
which pervades such proceedings. Finally, the fact that many
past settl Tents have not contained civil penalties further
contributes to the controversy which surrounds this approach.
It uld appear that a far nore productive approach s! uld be
the use of significant stipulated penalties to assure
catpliance, with fair consideration for unavoidable
delays. As a caupranise, consideration might be given to an
approach which s uld Iold up-front penalties in escrow, with
opportunity for the violating municipality to have these
penalty funds returned upon successFul caripletion
of the mandated schedule.
D. Funding for Catpliance/Enforceient
As previously discussed, it is difficultto iiiprehend the
logic of providing over $40 billion in Federal funding for
municipal water pollution control facilities over the past 13
years, and not to adequately fund the incr ental additional
cost for proper cLlu liance nonitoring of the performance
of these sane facilities following constniction. This
questioned logic is based on reasonable confidence by NAG that
caupliance rrcnitoring is achievable with but ntdest resources.
-------
33
F. Incentives
Incentives are considered a helpful and under-used tool for
improved cattpliance. EPA ’s ITost recently announced program of
awards is a we1cai d addition to the rather rreager program of
awards which recognize excellence in P01W performance. The
potential for additional recognition options as an incentive
for canpliance r nains great. In particular, there is a
great potential for ilt?roved canpliance in a program which
recognizes sustained caipliance, rather than only ex riplary
performance. Similar recognition should also be given for
industrial pretrea nt efforts. The potential uld
probably be enhanced if instituted by EPA. A periodic listing
of P(YIWs performance, circulated in each State, u1d be
another rrethod. It can be added that all such incentive or
recognition programs should particularly impact the- minor
POIWs, which are ackncMledged by EPA to receive l r priority
attention.
-------
35
VII RECOMMENDATIONS
1. National Municipal Policy The National Municipal Policy for
bringing rrninicipalities into ccznpliance with the Clean Water Act
(G A) needs to be strongly supported and vigorously carried out at
Federal, State and local governirent levels. Technical assistance,
training s ninars, conferences, and diagnostic evaluations are sare
of the methods that can be utilized to encourage and assist
canpliance with the CWA.
2. NPDES Authority &icourage the r naining unapproved States to
request authority to administer the NPDES program, which uld
enable EPA to focus its managEx nt and oversight of the national
program in a ri re uniform manner.
3. NPDES Data Base Improve the NPD data base by providing increased
funding for the Permit Ca pliance Syst n (PCS) and by encouraging
States to becar direct users of the national data syst n (PCS).
4. Administrative Burden on Regions/States Undertake a canprehensive
review of existing NPDES program manag rent strategies to determine
if there are ways to reduce the administrative and reporting burden
on the States and Regions, which might all ’i then to shift nore
resources to the operational efforts of the NPDES program to
mtprove canpliance.
5. Minor PC1IWS Develop a nore attentive program to deal with
ron-caiipliance by Minor PO1 7s, so as to assure that all P(YIWs and
the public they serve, regardless of size, ra ain mindful of the
official interest and nonitoring of their ccnipliance
responsibilities.
6. Administrative Penalties Amend the C to allc the use of
administrative penalties for NPD violations, with procedural
safeguards as needed.
7. Up-front Civil Penalties Wnere rion-cariplying rnuracipalities are
acting in good faith and are cooperating with Regional/State NPDES
enforc nt programs to correct the prob1 n, up-front civil
penalties should not be imposed except possibly in an escr
approach which s ild provide for return upon fulfillment of
canpliance ccmnitrrents.
8. Training and Operation Assistance Increase efforts, including
funding assistance, to encourage States to expand their training
and operation assistance programs, both for the benefit of
correcting existing noncarpliance and for reducing the future
occurrence of O&M related non-catcpliance.
9. Future Federal Funding in Scheduling Provide for priority
grant status to be taken into account in Municipal Carpliance Plan
( 42P) cczrpliance scheduling.
10. Incentives Place increased rpiasis on creating a large range of
incentives for P01W carpliance, including official acknowledgen nts
and meaningful recognition of both ex rplary as well as sustained
carpliance efforts by P 0 1Ws, especially minor P(Y 1 Ws.
-------
LIST OP ABBREVIATIONS
AA Assistant Administrator
AD Admini$tlat lYe Order
BOD Biochemical Oxygen Demand
GCP Composite Corrections Plan
Chemical Oxygen Demand
cso Combined Sewer Overflows
CWA Clean Water Act
Discharge Monitoring Reports
DOJ Department of Justice
Enforcement Management Systems
EPA Environmental Protection Agency
FEL Final Effluent Limits
oics Grants Information and Control System
ui Infiltration/Inflow
MAG Management Advisory Group to the EPA
Construction Grant. Program
Municipal Compliance Plan
National Municipal Policy
NOV Notice of Violations
NPDES National Pollutant Discharge Elimination System
OEO ( Office of Enforcement and Compliance Monitoring
Operation & Maintenance
G E Operation’ Management Evaluation
Office of Water
Office of Water Accountability System
Office of Water Enforcement and Permits
cs Permit Compliance System
P01W Publicly Owned Treatment Works
QNCR Quarterly Non-ComP1iIn 1 Reports
ss Suspended Solids
SASSR Semi-Annual Statistical Su ary Report
SNC Significant Non-Compliance
SPMS Strategic Planning and Management System
SSR Statistical Sunittiry Report
STORET Storage and Retrieval
TRC Technical Review Criteria
WPCF Water Pollution Control Federation
------- |