The Clean Water Act
Compliance/Enforcement
Guidance Manual
U.S. Environmental Protection Agency
Washington, DC 20460
Prepared by
The Office of Enforcement and Compliance Monitoring
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Table of Contents
Chapter One Overview
1 Purpose of the Manual 1-1
2 Introduction 1-3
3 A Short Legislative History 1-7
4 Overview of the Clean Water Act 1-11
5 Exhibits 1-29
Chapter Two GeneralOperating Procedures
1 Introduction 2-1
2 Prinary Office Responsibilities 2-3
3 Organizational Charts 2-9
4 Exhibits 2-15
'•Chapter.Three Compliance Monitoring Procedures
1 Introduction 3-1
2 Self-Monitoring and Other Information Gathering 3-3
3 Inspections • 3-7
4 Reviewing Facility Recordkeeping and Reporting 3-19
5 Warrants 3-21
6 Exhibits 3-25
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Chipcer Four Documentation of Evidence
1 Introduction
2 Self-Monitoring Reports
3 Compliance File Review
4 Review of Sources of Evidence
5 Exhibits
4-1
4-3
4-5
4-9 -
4-15
Chapter Five Responding to Noncoapliance
1 Introduction
2 Level of Action Policy
3 Exhibits
5-1
5-3
5-7
Chapter Six Administrative Enforcement.
1 Introduction
2 Administrative Enforcement
3 Exhibits
6-1
6-3
6-15
Chapter Seven Administrative Enforcement Actions;. Civil
Penalty Provisions
7-1
Chapter Eight JudicialEnforcement: Civil Actions
1 Introduction
2 Elements of a Violation; Civil
3 Procedures for Filing Actions
4 Consent Decrees
5 Exhibits
8-1
8-5
8-9
8-21
8-25
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Guidance Manual 1985
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Chapter Nine Criminal Enforcement
1 Criminal Enforcement 9-1
2 Exhibits 9-15
Chapter Ten Enforcement of Consent Decrees
1 Introduction 10-1
2 Consent Decree Tracking and Monitoring 10-3
3 Consent Decree Enforcement 10-5
4 Exhibits 10-17
Chapter Eleven Special Topics In the NPDES Program
1 Introduction 11-1
2 Standard Permit Conditions 11-3
3 Permit as a Shield 11-13
4 Issuance of Best Professional Judgment Permits 11-15
5 Special NPDES Evidentiary Hearing Procedures 11-19
6 The Freedom of Information Act 11-25
7 Protection of Confidential Business Information 11-29
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CWA Compliance/EnforcementIvGuidance Manual 1985
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Chapter One
Overview
Chapter Contents Page
1 Purpose of the Manual 1-1
Reservation 1-1
2 Introduction 1-3
Purpose and Scope of the Clean Water Act 1-3
Compliance and Enforcement 1-5
Program Regulations 1-6
3 A Short LegislativeHistory 1-7
Pre-1972 Law 1-7
The 1972 Amendments 1-8
The NRDC Consent Decree and the 1977 Amendments 1-8
Recent Regulatory Developments 1-10
4 Overview of the Clean Water Ace l-ll
NPDES Permits and Effluent Standards 1-12
The Pretreatraent Program 1-17
Recordkeeping, Monitoring, and Entry and Inspection '
Provisions 1-20
Oil and Hazardous Substances Spills 1-21
Dredged and Fill Material Permit Program 1-23
Enforcement Provisions 1-25
5 Exhibits 1-29
1-1: National Effluent Guidelines 1-31
1-2: Approved State NPDES Programs 1-36
1-3: Key Sections of NPDES Regulations 1-37
1-4: General NPDES Permits by Category 1-39
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Chapter One Contents
CUA Compliance/Enforcement1-liGuidance Manual 1985
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Chapter One
1 Purpose of the Manual
The purpose of this manual is to provide guidance to compliance/enforcement
personnel on the substantive and procedural requirements necessary for
ensuring compliance and preparing enforcement cases under the Clean Water
Act.
The manual describes compliance monitoring, case development and judicial
proceedings Including:
» Conducting compliance Inspections and obtaining sufficient evidence
to document a suspected violation;
• Filing administrative, civil, and criminal enforcement actions; and
* Monitoring compliance with and enforcing consent decrees*
Reservation
The policies and procedures set forth herein and the Internal office proce-
dures adopted pursuant hereto are intended solely for the guidance of
United States Environmental Protection Agency (EPA) personnel. These poli-
cies and procedures are not Intended to be relied upon to create a right or
benefit (substantive or procedural) enforceable at law by a party to liti-
gation with the United States Environmental Protection Agency. The Agency
reserves the right to take any action alleged to be at variance with these
policies and procedures or that is not in compliance with internal office
procedures.
CWA Compliance/Enforcement 1-1 Guidance Manual 1985
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Chapter One Purpose of the Manual
CWA Compliance/Enforcement 1-2 Guidance Manual 1985
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Chapter One
2 Introduction
Purpose andScope of the Clean Water Act
The Clean Water Act (CWA) [33 U.S.C. §1251, et_ seq_. ], as amended, was
enacted to "restore and maintain the chemical, physical, and biological
integrity of the Nation's waters." The CWA established a national goal to
eliminate the discharge of pollutants into the navigable waters by 1985.
The Act set up a National Pollutant Discharge Elimination System (NPDES)
permit program. Under this program, the discharge of any pollutant into
the waters of the United States is unlawful except as authorized by an
NPDES permit issued pursuant to Section 402(a) of the CWA.
By 1977, all existing industrial dischargers were required to install the
best practicable control technology (BPT) and all municipal dischargers
were required to meet secondary sewage treatment standards. By 1984,
industrial dischargers were required to meet best available technology
(BAT) requirements, which are intended to limit discharges of toxic
substances and can be more stringent than BPT standards. Discharges of
conventional pollutants (e.g., biochemical oxygen demand and total
suspended solids) were required to meet best conventional pollutant control
technology (BCT) by 1984 (explained below). New sources of industrial dis-
charges are required to meet any applicable new source performance stan-
dards that achieve the highest effluent reduction possible using the best
available demonstrated control technology.
The CWA also established a pretreatment program, which regulates Industrial
discharges to publicly owned treatment works (POTWs); dredged and fill
permit program; and prohibitions on certain spills of oil and hazardous
substances.
The NPDES Permit Program
To implement the NPDES permit program, the Act set up a two-part system for
determining allowable pollutant discharges. First, the Act requires
increasingly stringent technology-based effluent limitations. EPA estab-
lishes these BPT and BAT limitations in national effluent guidelines (see
Exhibit 1-1) or, in the absence of national regulations, on a case-by-case
basis by EPA technical personnel who follow statutory guidelines. Second,
after EPA determines the appropriate technology-based requirement, the
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Chapter One Introduction
Agency is required to impose any other more stringent limitations necessary
to Beet state water quality standards and any other federal law to imple-
ment any applicable water quality standard, fhese limitations are placed
in the NPDES permit.
State NPDES Programs. The CWA authorizes EPA to approve states to admin-
ister the NPDES program. In order to be approved, a state program must
have adequate legal authority and programmatic capability to issue and
enforce NPDES permits. Upon approving a state program, EPA must suspend
issuance of permits in that state. However, EPA retains veto authority •
over any proposed state permits that do not meet the minimum EPA require-
ments, and EPA also retains concurrent enforcement authority. Under EPA
policy, EPA will take enforcement action where the state fails to take
"timely and appropriate" enforcement action or in cases of national
significance. As of February 1985, EPA has approved 37 state NPDES
programs (see Exhibit 1-2).
In those states where EPA retains the NPDES permitting authority, the CWA
provides the state with the opportunity to certify that the permit meets
all state water quality standards and any other state requirements.
The PretreatmentProgram
The CWA also sets up a mechanism to regulate industrial discharges to
publicly owned treatment works (POTW), known as the pretreatment program.
Under this program, EPA has authority to develop pretreatment standards for
pollutants that interfere with or pass through POTWs or contaminate
sludge. These standards are promulgated as part of the national effluent
guidelines. A list of these categorical standards is contained in Exhibit
1-1. The standards focus on toxic pollutants that are not adequately
treated by the POTW. The program also requires certain municipalities to
submit a local pretreatment program that authorizes the POTW to regulate
its indirect dischargers. The pretreatment program constitutes one part of
an approvable state NPDES program. The key CWA provisions on NPDES and
pretreatment are discussed later in this chapter.
Dredged and Fill Permit Programs
The CWA also sets up a Section 404 dredged and fill permit program. Under
this program, the Army Corps of Engineers issues permits to applicants to
discharge dredged and fill material to designated waters of the United
States. Unlike NPDES industrial permits for existing sources, the National
Environmental Policy Act (NEPA) applies to permits Issued by the Corps and
thus may require the Corps to prepare an environmental Impact statement
(EIS) prior to issuance of a permit. While the Corps issues federal
dredged and fill permits and enforces the terms of the permits, EPA is
charged with approving state agencies to administer a Section 404 program
and with overseeing state Section 404 program implementation, including
enforcement. As of May 1985, only one state has an approved program. EPA
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Chapter One Introduction
may bring actions for discharges without a Section 404 permit and shares
enforcement authority with the Corps for Section 404 permit violations.
Compliance and Enforcement
The CWA establishes several authorities for EPA compliance and enforcement
activities. The Act authorizes the Administrator to require owners and
operators of point sources and certain contributors to publicly owned
treatment works to maintain records, and to monitor and report on water '
discharges. NPDES permit holders and some industrial contributors to pub-
licly owned treatment works must submit compliance and discharge monitoring
reports on a regular basis. EPA also has authority to enter and inspect
water pollution sources, to sample direct and indirect discharges, and to
inspect records and monitoring equipment. Entry and Inspection issues are
discussed in detail in Chapter Three.
The CWA provides several enforcement remedies for discharging without a
permit and for violating permit effluent limitations, pretreatment require-
ments, monitoring provisions, and any permit conditions, which include the
following:
* Issuance of a notice of violation to a state and a violator;
• Issuance of an administrative compliance order;
• Filing of a civil action for injunctive relief and penalties;
* Filing of a criminal action; and
• Filing of an emergency action.
An approved state NPDES or Section 404 program must include the authority
to obtain civil and criminal remedies, including emergency injunctive
relief; the state has primary responsibility for bringing enforcement
action.
The CWA also contains a citizen suit provision, which authorizes persons to
commence a civil action against alleged violators to enforce the Act's
requirements or to require the Administrator to perform a mandatory duty..
The Act provides for extensive public participation in several areas of
regulatory development and the enforcement process. In addition, an
opportunity for the public's input is required in developiag, revising, and
enforcing any effluent regulation, permit limitation, or program estab-
lished by EPA or a state agency.
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Chapter One Introduction
Program Regulations
EPA has published the NPDES program regulations in 40 G.F.R. Parts 122
through 125. Part 122 contains substantive permitting requirements,
including reporting, testing, and other permit conditions (as opposed to
specific permit limitations contained in effluent guidelines). Part 123
contains permitting and enforcement requirements for approval of state
NPDES programs. Part 124 contains procedural requirements for issuing per-
mits and challenging permit limitations, including evidentiary hearings.'
Part 125 provides criteria to be applied by EPA or an approved state in
imposing effluent limitations and making specialized permit determinations
under the NPDES program, such as variance requests. Key sections of the
regulations are outlined in Exhibit 1-3.
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Chapter One
3 A Short Legislative History
Pre-1972 Law
Apart from the 1899 Rivers and Harbors Act 33 U.S.C. §407 et seg. (commonly
known as the "Refuse Act"), the federal water pollution control effort did
^not begin until the passage of the Federal Water Pollution Control Act of
1948 (FWPCA). The FWPCA relied primarily on state and local action to meet
federal pollution abatement goals. The federal government's role was
restricted to assisting local governments in neeting their water pollution
control problems.
The 1965 amendments to the FWPCA continued to rely largely on state
action. The amendments required the states to establish water quality
standards that would be applicable to interstate waters. In 1966, the Fed-
eral Water Pollution Control Administration established guidelines on water
quality standards. By 1972, the majority of states had obtained federal
approval for their standards. The 1965 amendments also provided for
federal grants for state water pollution control activities. Regarding
enforcement, however, the federal law relied primarily on informal negotia-
tions and cooperative efforts between the enforcement agency and the
polluter.
In contrast to the water quality-based approach of the FWPCA, the Refuse
Act prohibited the discharge from a ship or shore installation into navi-
gable waters of the United States of "any refuse matter of any kind or
description whatever other than that flowing from streets and sewers and
passing therefrom in a liquid state without a permit." Originally intended
to protect navigation, the Refuse Act was rejuvenated as a water pollution
control measure. In United States v. Republic Steel Corp. [362 U.S. 482
(I960)], the Supreme Court Interpreted an "obstruction to navigable capa-
city" to Include the discharge of industrial wastes into a navigable
river. In 1971, the Army Corps of Engineers adopted guidelines to imple-
ment an Executive Order of December 1970, which created a Refuse Act permit
program.
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Chapter One A Short Legislative History
The 1972 Amendments
the FWPCA amendments of 1972 set up a comprehensive regulatory scheme for
controlling water pollution discharges and resolved the differing water
quality standards approach of the 1965 FWPCA and the effluent standards
approach of the Refuse Act. The 1972 amendments to the FWPCA set as a
national goal the elimination of the discharge of pollutants into the
navigable waters by 1985. The amendments also abandoned water quality
standards as the primary regulatory approach in favor of EPA-promulgated;
industry-by-industry, technology-based effluent limitations and extended
federal Jurisdiction to all waters of the United States.
The amendments established the NPDES permit program to implement these
"technology-forcing" standards, superseding the Refuse Act permitting
program. Under this scheme, a permit is required for any discharge into
the waters of the United States and cannot be issued unless the effluent
discharges meet federal effluent guidelines or, when no guidelines exist,
the issuing Agency's best professional judgment on how to meet statutory
requirements. The Act further required more stringent permit limitations
based on state water quality standards and other state water quality
requirements. The amendments also authorized EPA to establish effluent
standards for new sources and toxic pollutants and to set pretreatment
standards for industrial contributors or indirect discharges to publicly
owned treatment works.
Finally, the amendments provided extensive enforcement authority, including
issuance of administrative orders, and established civil penalties of up to
$10,000 per day of violation and criminal penalties of up to $25,000 per
day of violation and one year in prison.
EPA promulgated the initial regulations for state NPDES programs on
December 22, 1972 (37 Fed. Reg. 28391) and promulgated substantive NPDES
permitting requirements on May 22, 1973 (38 Fed. Reg. 13528). In the
initial, or "first-round," permitting effort, EPA and states with NPDES
program authority issued over 65,000 NPDES permits. EPA issued the vast
majority of these permits prior to promulgation of best practicable control
technology (BPT) effluent guidelines by relying on its authority under
Section 4Q2(a)(l) of the Act to issue permits with "such conditions as the
Administrator determines to be necessary to carry out the provisions of
this Act."
The NRDC Consent Decree and the 1977 Amendments
EPA's development of BPT national effluent guidelines focused largely on
conventional pollutants such as biochemical oxygen demand, suspended
solids, and acidity and alkalinity. In addition, EPA regulated some toxic
pollutants on a substance-by-substance basis under Section 307 rather than
on an industry-by-industry basis through the effluent guidelines. In 1975,
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Chapter One A Short legislative History
the Natural Resources Defense Council (NRDC) and several other environmen-
tal groups filed suit against EPA challenging (1) EPA's criteria for
identifying toxic pollutants under Section 307(a) of the OTA, and EFA's
failure to promulgate effluent standards under this section and (2) EPA's
failure to promulgate pretreatment standards under Section 307(b) for
numerous industrial categories and pollutants. In settling this litiga-
tion, NRDC v. Train, 8 ERG 2120 (D. D.C. 1976), EPA and NRDC agreed on a
policy to regulate toxic pollutants through EPA effluent guidelines and
standards.
The consent agreement required EPA to regulate the discharge of 65 categor-
ies of priority pollutants (which included 129 chemical substances) from 34
industrial categories unless specific findings could be made to exclude
industrial categories or pollutants from regulation. EPA subsequently
removed 3 of the 129 substances from regulation. The decree required
adoption of best available technology (BAT) effluent limitation guidelines
in each category by June 30, 1983, and set similar requirements for new
sources and indirect dischargers. NPDES permits issued or renewed after
January 1, 1976, had to be modified to reflect these new effluent
standards.
The 1977 Federal Water Pollution Control Act amendments largely incorpor-
ate the NRDC Consent Decree by:
* Adopting the list of priority pollutants as the list of toxic
pollutants to be regulated by EPA;
• Requiring establishment of BAT effluent limitation guidelines by
July 1, 1980;
« Requiring compliance with BAT effluent limitations by July 1, 1984;
and
» Allowing EPA to add to or delete from the list of toxic pollutants.
On March 9, 1979, the Consent Decree was modified (12 ERC 1833) to adopt
the 1977 amendments' BAT compliance deadline of June 30, 1984, and to
extend the deadline for developing technology-based effluent limitations
for toxics in the 34 industrial categories.
The 1977 amendments made other significant changes as well. First, under
the revised Section 402(d), EPA is authorized to issue an NPDES permit in
Chose instances in which the state-proposed NPDES permit is inconsistent
with the federal requirements.
Second, Section 313 was amended to authorize states to issue NPDES permits
to federal facilities (see Executive Order 12088). EPA has interpreted
Section 313 to require state programs to include federal facilities permit-
ting in its NPDES program. (See "State Regulation of Federal Facilities
Uader the Federal Water Pollution Control Act Amendments of the 1977 Clean
Water Act POLICY GUIDANCE MEMORANDUM," March 10, 1978, contained in the
Permits Division (Office of Water) Policy Book.)
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Chapter One A Short Legislative History
Third, the amendments add significant pretreatment provisions. Under
Section 402(h), EPA has authority to take enforcement action in an approved
NPDES state to prevent the introduction of pollutants into a PQTW that is
discharging pollutants in violation of its permit. EPA previously had this
authority only in unapproved states. Section 309(f) authorizes IPA to take
a civil action against an indirect discharger for violating any pretreat-
ment standard and against the receiving POTW in which the PQTW does not
begin enforcement action within 30 days following notice from the Admin-
istrator; it also authorizes EPA to require POTWs to submit pretreatment
programs for Agency approval. Section 402(b)(8) requires states to include
conditions in POTW NPDES permits that ensure the identification of sources
introducing pollutants to POTWs and to implement a program to ensure
compliance with pretreatment standards by each such source.
Finally, Congress ratified the judicial and regulatory interpretations of
the Section 404 program as one with broad jurisdictlonal scope, including
wetlands. The amendments also established EPA's authority to approve state
Section 404 programs in certain waters of the United States.
Recent Regulatory Developments
Following the passage of the 1977 amendments, IPA substantially revised the
NPDES permitting regulations to include best available technology (BAT), or
"second-round," permitting conditions (i.e.t testing and monitoring re-
quirements; 44 Fed. Reg. 32854, June 7, 1979). EPA revised these regu-
lations and consolidated them with other EPA permit program regulations (45
Fed. Reg. 33290; May 19, 1980). Shortly thereafter, several industry
groups and NRDC challenged numerous sections of the EPA permitting
regulations. The litigation focused largely on challenges to permittee
reporting and testing requirements. EPA settled most of the NPDES-specific
issues by agreeing to propose regulatory revisions (47 Fed. Reg. 25546,
June 14, 1982; and 47 Fed. Reg. 52072, November 18, 1982). The Agency also
promulgated a final regulation on common issues (i.e., provisions applic-
able to NPDES as well as other EPA permitting programs) on September 1,
1983 (48 Fed. Reg. 39611). EPA adopted the final regulation on NPDES-
specific issues on September 26, 1984 (49 Fed. Reg. 37997).
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Chapter One
4 Overview of the Clean Water Act
The following are the central components of the CWA's regulatory scheme:
• Section 301 — Prohibition against discharges to waters of the
United States except in compliance with an NPDES or Section 404
permit and compliance deadlines for technology-based effluent
limitations and water quality-based effluent limitations;
• Section 303 — State development of water quality standards and EPA
review of such standards;
• Section 304 — Criteria for development of national effluent
guidelines for industry categories;
• Section 306 — EPA development of standards of performance for new
sources of pollutant discharges;
• Section 307 — EPA development of pretreatment categorical stan-
dards for industrial contributors to POTWs and development of toxic
pollutant standards;
• Section 308 — EPA authority to require discharger reporting and
monitoring and to enter, inspect, and sample water pollutant
discharges;
• Section 309 — Administrative orders and civil and criminal
enforcement of the NPDES program and Section 404 violations;
• Section 311 — Control of discharges of oil or hazardous
substances;
• Section 313 — State and EPA NPDES permitting of federal
facilities;
• Section 401 — State certification of EPA-issued permits;
• Section 402 — EPA issuance of NPDES discharge permits and EPA
approval of states to administer an NPDES program;
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Chapter One Overview of the Clean Water Act
Section 404 — Army Corps of Engineers' issuance and enforcement of
dredged and fill permits and EPA approval of state Section 404
programs;
Section 504 — Emergency enforcement;
Section 505 — Citizen suits against CWA violators or against the
Administrator for failure to perform a nondiscretionary act or
duty!
Section 508 — Prohibitions on award of federal contracts, grants,
or loans for CWA violations;
Section 50? — Judicial review of EPA effluent standards and Agency
permitting decisions; and
Section 510 — State authority to set more stringent effluent limi-
tations than those required by federal law.
NPDES Permits and Effluent Standards
Section 402 of the CWA establishes the NPDES permit program. Under Section
301 of the Act, the discharge of pollutants into the waters of the United
States is prohibited except when the discharge Occurs under the limitations
and conditions of an NPDES (or Section 404) permit. The permit incorpo-
rates the minimum, nationally required effluent limitations and any more
stringent water quality-based limitations, as well as other compliance
measures, schedules, and monitoring and reporting requirements. These
limitations are legally binding on the industrial or municipal permittee.
Permit Limitations and Compliance Deadlines
Section 301 also provides compliance deadlines for industrial and municipal
dischargers to achieve minimum levels of water pollution control. By July
1, 1977, industrial permittees were required to achieve BPT; and, by July
1, 1984, industrial permittees were required to achieve BAT for toxic
pollutants. Under Sections 301, 306, and 307, EPA has established BPT,
BAT, and new source effluent limitations and standards by promulgating
industry-by-industry effluent guidelines.
Section 304 provides the criteria for adopting limitations through efflueac
guidelines. For setting both BPT and BAT, Sections 3Q4(b)(l)(i\) -*n
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Chapter One Overview of the Clean Water Act
cost of the pollution control technology with the effluent reduction
benefits that the Agency expects to achieve). In adopting standards,
Section 304(b)(l)(B) directs EPA to consider the age of the equipment and
facilities involved, the effluent reduction process employed, engineering
aspects, process changes, nonwater quality environmental impact (including
energy requirements), and any other appropriate factors, as determined by
the Administrator.
Section 304(b)(4)(B) provides that in setting BCT limitations, EPA must
consider the same factors in setting BAT and must do an additional cost
test. BCT cannot be less stringent than BPT nor more stringent than BAT,
The effluent guidelines are contained in 40 C.F.R. Parts 400 to 464.
Effluent limitations become enforceable against an individual point source
discharger through its NPDES permit. Toxics standards and new source
performance standards (NSPS) are enforceable whether or not a permit has
been issued, and pretreatment standards are enforceable directly or as part
of a POTW pretreatment program. The nationally promulgated effluent
guideline regulations may not be challenged in an NPDES permit proceeding;
under Section 509(b)(l), a challenge must be made within 90 days of
promulgation of such final regulations.
Where effluent guidelines have not been established for a particular Indus-
trial category, EPA has authority under Section 402(a)(l) of the Act to
issue enforceable NPDES permits "upon such conditions as the Administrator
determines to be necessary to carry out the provisions of the Act" [United
States v. Cutter Laboratories, Inc., 413 F. Supp. 1295 (E.D. Tenn 1976)].
EPA refers to these permits as "best professional judgment" (BPJ) permits.
Where an effluent guideline does apply to a particular discharger, EPA or
an authorized NPDES state can use its Section 402(a)(l) or equivalent state
authority to establish additional permit limitations for pollutants that
were not addressed by the national guideline.
New Source Performance Standards
Section 306 directs the Administrator to adopt new source performance stan-
dards (NSPS) for new sources of water pollutants. A new source is defined
as "any source, the construction of which is commenced after the publica-
tion of proposed regulations prescribing a standard of performance under
this section which will be applicable to such source...." Construction is
defined as "any placement, assembly, or installation oE facilities or
equipment (including contractual obligations to purchase such facilities or
equipment)...." EPA publishes NSPS regulations along with industry-by-
industry effluent guidelines for existing sources.
The NPDES regulations provide criteria for determining whether a source is
an existing source (or a modification thereof) or a new source. This
determination is important for three reasons:
* First, NSPS can be more strict than effluent guidelines for
existing sources;
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Chapter One ^___^_^__ Overview of the Clean Water Act
* Second, EPA-issued new source permits, unlike existing permits, are
subject to the environmental review requirements of the National
Environmental Policy Act (NEPA), and thus the facility may be
required to prepare an environmental impact statement (EIS) [Note
that state-issued new source permits are not subject to NEPA. See
District of Columbia v. Schramm. 631 F. 2d 854 (D.C. Cir. 1980), 40
C.F.R. §122.29(c)(l)(ii)J; and
* Third, under Section 306(e), the new source discharges oust immedi-
ately comply with the NSPS and do not receive the statutory compli-
ance deadline of June 30, 1984, as do existing sources, which must
attain BAT.
The permit regulations at 40 C.F.R. §122.29(d)(4) require dischargers to
"start up" all pollution control equipment so that their permit conditions
are met prior to any actual discharge and to meet all permit conditions no
later than 90 days following issuance of the permit. Where there is a new
discharge of pollutants, but no applicable proposed NSPS, the source is
considered to be a new discharger under the NPDES regulations (40 C.F.R.
§122.2). New dischargers, like new sources, must have all start-up
equipment in place to meet permit conditions before beginning to discharge.
In addition, Section 306 provides new sources with a ten-year period of
protection from more stringent technology-based standards, and new dischar-
gers receive a similar protection period from more stringent technology-
based standards. However, for both new sources and new dischargers, the
protection period does not extend to additional or more stringent permit
conditions based on water quality standards, toxic effluent standards under
Section 307(a) of the CWA, or additional permit conditions controlling
toxic pollutants or* hazardous substances that are not controlled by NSPS.
Water Quality-Based Limitations
Section 301(b)(l)(C) requires POTWs to achieve "any more stringent limita-
tion, including those necessary to meet water quality standards...estab-
lished pursuant to any State law or regulations...." As noted in United
States Steel Corp. v. Train [556 F. 2d 822, 838 (7th Cir. 1977)],
technology-based limitations represent the minimum level of pollution con-
trol required by the Act. Any more stringent water quality-based limita-
tions apply to both industrial and municipal dischargers and must be placed
in the NPDES permit.
Publicly Owned Treatment Works
Section 30l(b)(l)(B) requires POTWs, as defined in Section 201, to achieve
effluent limitations based upon secondary treatment guidelines. Section
304(d)(l) directs EPA to adopt secondary treatment guidelines. The Agency
has defined secondary treatment in 40 C.F.E. Part 133. In the 1981 amend-
ments to the Act, Congress added Section 304(d)(4), which provided that
"such biological treatment facilities as oxidation ponds, lagoons, and
ditches and trickling filters shall be deemed the equivalent of secondary
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Chapter One Overview of the Clean Water Act
treatment." In amending this section, Congress approved the use of certain
biological treatment techniques that can significantly reduce biological
oxygen demand (BOD) and total suspended solids (TSS) levels, although these
treatment techniques are not capable of achieving the regulatory standard
of 30 tng/L of BOD and TSS over a 30-day period. EPA issued rules to
implement Section 30A(d)(A) on September 20, 1984 (49 Fed. Reg. 36986).
General NPDES Permits
EPA or a state approved to issue general permits may issue a general NPDES
permit covering a category of discharges under the CWA within a geographi-
cal area. General NPDES permits set permit limitations and conditions,
including monitoring and reporting requirements on an area-wide and indus-
try basis and authorize discharges from a large number of facilities with a
single permit action. EPA began to implement the general permit program in
1979. Exhibit 1-4 contains a list of proposed and issued general permits.
The permitting approach has its greatest impact where an industry is con-
centrated in a particular geographical area. For example, a general permit
for coal mining activities in Kentucky covers about 2,500 facilities.
EPA uses general permits for major as well as minor dischargers. Major
dischargers are defined in Section 122.2 as "any NPDES 'facility or acti-
vity1 classified as such by the Regional Administrator or, in the case of
'approved state programs,' the Regional Administrator in conjunction with
the state director." Under 40 C.F.R. §122.28, the NPDES director may issue
a general permit covering either separate storm sewers or a category of
sources that:
• Involve the same or substantially similar types of operations;
• Discharge the same types of wastes;
• Require the same effluent limitations or operating conditions;
• Require the same or similar monitoring; and
• In the opinion of the NPDES director, are more appropriately con-
trolled under a general permit than under individual permits.
EPA issues general permits based on BPJ determinations under authority of
Section 402(a)(l) of the CWA in any case where eEfluent guidelines do not
address the discharges regulated by general permits.
The NPDES director may require any person authorized by a general permit to
apply for an individual permit for several reasons, including "[t]he
discharger is not in compliance with the conditions of the general NPDF.S
permit" [Section 122.28(b)(2)]. In addition, any general permittee may
request to be excluded from the coverage of the general permit by applying
for an individual permit.
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Chapter One Overview of the Clean Water Act
State NPDES Programs
Section 402(b) of the CWA authorizes EPA to approve states to administer
the NPDES program. The Administrator oust approve a proposed state permit
program unless he or she determines that the state does not have adequate
legal authority or programmatic capability. This includes permitting and
enforcement authority, and adequate resources and staffing. The approved
program must cover all categories of direct discharges to state waters
(including federal facilities), as well as regulate indirect dischargers
through a pretreatment program. The permitting requirements that all NPDES
states oust meet are contained in 40 C.F.R. §123.25. Upon approval, EPA ,
must suspend further Issuance of federal NPDES permits in the state under
Section 402(c). The state also becomes the primary enforcement authority
of the NPDES program. [See toinoll U.S.A. Inc. v. California State Water
Resources Control Board, 674 F. 2d 227 (9th Cir. 1982).] However, Section
309 does not preclude federal enforcement following state NPDES program
approval. EPA also retains extensive statutory oversight authority under
Section 402(d) to review proposed state permits and to withdraw a program
that does not comply with federal requirements.
Compliance with Permit Limitations
Permit limitations generally serve as a shield for enforcement. Section
402(k) provides that "[cjompllanee with a permit issued pursuant to this
section shall be deemed compliance [for the purpose of federal enforcement
and citizen suits] with Section 301, 302, 306, 307, and 403, except any
standard imposed under Section 307 for a toxic pollutant injurious to human
health." In duPont v. Train [430 U.S. 112, 138, n. 28 (1976)], the Supreme
Court noted that "[tjhe purpose of §402(k) seems to be to Insulate permit
holders from changes in various regulations during the period of a permit
and to relieve them of having to litigate in an enforcement action the
question of whether their permits are sufficiently strict. In short,
§402(k) serves the purposes of giving permits finality." (Chapter Eleven
discusses this concept in greater detail.)
Permit Modifications
While it is important to set effluent limitations for all pollutants during
the initial permit issuance, EPA or an approved state may reopen and modify
a permit under 40 C.F.R. §122.62. The following are examples of good cause
for permit modification:
* Material and substantial alterations to the permitted facility;
* New Information received by the NPDES director that was not avail-
able at the time of permit Issuance;
• Regulations on which the permit was based have been changed by EPA
or judicial decisions (permittee must request this modification);
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Chapter One Overview of the Clean Water Act
* Incorporation of a Section 307(a) toxic effluent standard; and
* Modification of a compliance schedule.
Note that administrative orders Issued under Section 309 that contain com-
pliance schedules do not modify permit requirements.
State Certification
Where !PA is the permit-Issuing authority, Section 401 of the Act requires
a state to certify that the NPDES permit meets requirements of federal and
state law, Including application of state water quality standards. (EPA
has adopted regulations for certification In 40 C.F.R. Part 121. The
regulations actually refer to the Refuse Act predecessor to Section 401.)
EPA cannot Issue the permit until the state so certifies or waives
certification. Section 303 establishes procedures for establishing state
water quality standards, subject to approval by the EPA Administrator, and
Section 303(c)(l) requires a state to review its water quality standards at
least once every three years and to receive EPA approval of these
revisions.
The Pretreatment Program
The pretreatment program is designed to protect municipal wastewater treat-
ment plants and the environment from damage that may occur when pollutants
are discharged into a sewage system. Section 307 of the Act establishes
regulation of industries that discharge waste to a POTW and authorizes EPA
to set pretreatment standards for those pollutants discharged to POTWs that
would Interfere with, pass through, or otherwise be incompatible with the
treatment works. The general pretreatment program regulations are
contained in 40 C.F.R. Part 403.
Because municipal wastewater treatment systems are designed primarily to
treat domestic wastes, the introduction of nondomestic wastes may affect
these systems. For example, the bacteria needed In activated sludge
treatment systems can be Inhibited by toxic pollutants. The result is
interference with the treatment process, which means that domestic and
industrial wastes may be improperly treated by the POTW before being
discharged into the receiving water. Even if pollutants do not .interfere
with the treatment systems, they may pass through POTWs without being
adequately treated because the systems are not designed to remove them.
EPA has prohibited "Interference" and "pass through" In 40 C.F.R. §403.
While these definitions were remanded In National Association of Metal
Finishers, et al. (NAMF) v. EPA [719 F. 2d 624, 641 (3d Cir. 1983)]. rev'd
in part on other grounds, 53 U.S.L.W. 4193 (Sup. Ct. 1985), the generic
prohibition in Part 403 remains.
EPA regulates indirect discharges in two ways. First, under the NRDC
consent decree (cited above) and Section 307(b)(i), EPA must adopt 34
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Industrial pretreatment or categorical standards, which are analogous to
BAT standards for direct dischargers unless EPA can support a decision to
exclude them from national regulation. Categorical standards apply to
those users in these categories that the Agency has determined are the most
significant sources of toxic pollutants. In developing these categorical
standards, EPA compares the percent removal of pollutants achieved for BAT
at a direct-discharging industry to the percent removal of indirectly
discharged pollutants at the POTW to determine whether there is "pass
through" of pollutants. If there is "pass through," EPA establishes
categorical pretreatment standards based on BAT.
As of May 1985, EPA has adopted 24 final pretreatment categorical standards
covering 21 industrial categories. Industries in those categories must
come into compliance with the standards no later than three years from the
effective date of the standard. Section 307 also authorizes EPA to approve
POTW applications for removal credits for an industrial user (i.e., a
treatment allowance for the POTW's treatment of some of the industrial
user's discharge). In addition, POTWs are required to establish more
stringent local limits for industrial users where necessary to protect the
environment or the municipal sewage system (40 C.F.R. §403.5). Section
403.5 also states that limits are considered pretreatment standards and are
enforceable as such under Section 307(d) of the Act.
Second, the general pretreatment regulations prohibit the discharge of
pollutants that:
* Create a fire or explosion hazard in the sewers or treatment works;
* Are corrosive (i.e., pH lower than 5.0);
» Obstruct flow in the sewer system or interfere with operation of
the sewer system;
• Upset the treatment processes or cause a violation of the POTW's
permit; and
• Increase the temperature of wastewater entering the treatment plant
to above 104 °F (40 °C).
These prohibited discharge standards apply to all Industrial and commercial
establishments connected to POTWs.
In NAMF, cited above, the court addressed several issues In the pretreat-
ment program. The court upheld the BPT-level electroplating pretreatraent
standards (40 C.F.R. Part 413; see Exhibit 1-1). (Electroplaters consti-
tute approximately 11,000 of the 14,000 indirect dischargers.) The court
also upheld the combined waste stream formula (i.e., the formula for
deriving categorical standards where more than one waste stream are
combined) and the removal credits provision. The court remanded the
definitions of "interference" and "pass through."
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Chapter One Overview of the Clean Water Ac*
Approval of Local Programs
Those POTWs with a total design flow greater than 5 million gallons per day
that receive industrial discharges that either pass through, Interfere
with, or are covered by a .categorical standard oust submit a local
pretreatment program to EPA or an approved state (40 C.F.R. §403.8). An
approved local program must develop and enforce local limits to Implement
the prohibitions on pass through and interference, as well as the specific
prohibitions of 40 C.F.R. §403.5(b) (see NAMF, above).
The POTW must have authority to obtain remedies for violations of categori-
cal standards, local limits, or other pretreatment requirements such as
monitoring [40 C.F.R. §4Q3.8(f)(l)(vi)(A)]. The state may approve the
local program if the state has an approved pretreatment program; otherwise,
EPA approves the program. The state and EPA may take enforcement action
when the POTW either has not taken timely and appropriate enforcement
action or has sought an insufficient remedy. •
Where the POTW does not have an approved local program at the time the
POTw's existing permit is reissued or modified, the reissued or modified
permit must contain a compliance schedule to develop such a program [40
C.F.R. §403.8(d)]. The approval authority should also incorporate an
approved POTW pretreatnent program into the POTW permit [40 C.F.R.
§403.8(e)(4)].
Reporting Requirements
Industrial dischargers covered by categorical standards must prepare a
Baseline Monitoring Report (BMR), which describes a facility's operation
and waste stream characteristics (40 C.F.R. §403.12), The discharger
submits this report to the POTW (if the POTW's pretreatment program is
approved) or to the applicable approval authority. The BMR, which
generally includes sampling and analysis data of the Industrial user's
discharge, must be submitted within 180 days of the effective date of final
categorical pretreatment standards for that Industrial category. If not in
compliance, the user must develop and submit a compliance schedule
describing the steps it will take to achieve compliance. Within 14 days
after the date for each step, the user must submit progress reports.
Within 90 days of the final compliance date of an applicable standard, the
indirect discharger must submit a compliance data report detailing the
nature and concentration of the industry's discharges. Industries subject
to categorical standards must also, at least twice a year, submit a report
containing self-monitoring results to the Control Authority. In addition,
an industry must report Immediately any slug loads or significant changes
In its discharge characteristics to the POTW.
Pretreatment Enforcement
EPA's pretreatraent enforcement efforts have Increased with the 1984 dead-
lines for achieving certain pretreatment categorical standards. On October
28, 1983, EPA issued a Pretreatment Compliance Strategy (Short Term). (See
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Chapter One Overview of the Clean Water Act
Water Enforcement Policy Compendium.) The objective of the short-term
strategy is to require all POTWs that are obligated to develop and imple-
ment pretreatment programs to do so in the shortest possible time. The
policy states that POTWs that did not meet the July 1, 1983, deadline for
approval of POTW programs under Section 309(a)(5)(A) will receive compli-
ance schedules, through administrative orders or judicial orders, requiring
submittal of a program no later than September 30, 1984. The strategy also
provides for EPA enforcement of categorical standards in unapproved cities
in unapproved states and in approved cities that are not enforcing
categorical standards. (See Chapter Eight for a more detailed discussion
of pretreatment enforcement.)
On April 12, 1984, EPA issued FY 1984 Pretreatment Enforcement Activities,
which included an attachment addressing factors for identifying POTW and
industrial user pretreatment referrals. On November 5, 1984, EPA issued
Guidance to POTWs for Enforcement of Categorical Standards to advise POTWs
of their responsibilities for enforcing pretreatment categorical
standards. Further guidance to be considered in making POTW referrals was
issued on December 31, 1984, as the POTW Pretreatment Multi-Case
Enforcement Initiative.
Recordkeeping, Monitoring, and Entry and Inspection Provisions
Authority
Section 308 of the CWA provides broad authority to EPA to require direct
and indirect dischargers to maintain records, make reports, and provide
monitoring and sampling data. An approved NPDES state must have equivalent
Section 308 authority. EPA may use this authority to gather information
for developing effluent limitations and pretreatment standards; to deter-
mine whether any person is in violation of any effluent limitation, other
limitation, or pretreatment standard; or to carry out the NPDES program,
Section 311 (oil and hazardous substances discharges), or Section 404
(dredged and fill permit program). For example, Section 308 authorizes EPA
to require NPDES application form data, including testing of toxic
substances 40 C.F.R. §122.21, and together with Section 402(a)(l) and
402(a)(2) authorizes EPA to require permittees to submit discharge
monitoring reports.
5ntry and Inspection
Sections 308(a)(4)(A) and (B) authorize the Administrator or an authorized
representative to enter and inspect a discharger's premises, to have access
to records and equipment, and to conduct sampling. In Marshall v. Barlow's
[436 U.S. 307 (1978)], the Supreme Court held that an OSHA inspector was
not entitled to enter the nonpublic portions of a worksite without either
the owner's consent or a warrant. The Barlow's decision affects all EPA
inspection programs, including inspections conducted by state personnel and
EPA contractors. If consent is denied, the Agency must seek an ex parte
administrative warrant through the U.S. Attorney. The warrant must
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Chapter One Overview of the Clean Water Act
designate specific areas of the facility to be inspected. The Agency may
obtain a warrant if it can show that the facility was chosen on the basis
of a general administrative plan for enforcing the Act. [See Public
Service Company of Indiana v. Environmental Protection Agency, 509 F. Supp.
720 (S»D. Ind. 1981) (Clean Air Act case).] Chapter Three discusses entry
and access issues in greater detail.
Confidential Business Information
Under Section 308(b), any records, reports, or other information that is
obtained from the discharger or during an inspection and that constitutes
effluent data must be made available to the public, unless a person can
show that the portion of the information that is not effluent data is
entitled to be withheld as a trade secret. Further, Section 402(J)
requires permit applications and issued permits to be available to the
public, including information submitted on forms and any attachments used
to supply information required by the forms [40 C.F.R. §122.7(c)]. The
Administrator must review requests for confidential treatment of Informa-
tion in accordance with 18 U.S.C. §1905 and 40 C.F.R. Part 2. Under 18
U.S.C. §1905, criminal penalties are also provided if a federal employee
knowingly releases information determined to be confidential.
Oil and Hazardous Substances Spills
Section 311 of the CWA provides a liability and compensation system for the
discharge of oil and hazardous substances into the waters of the United
States. Section 311(b)(3) prohibits the discharge of oil or hazardous
substances in "harmful" quantities. The CWA defines "hazardous substances"
as substances that "when discharged in any quantity into or upon [statu-
torily covered waters or their adjoining shorelines] present an imminent
and substantial danger to the public health or welfare, including, but not
limited to, fish, shellfish, wildlife, shorelines, and beaches." The list
of hazardous substances is contained in 40 C.F.R. Pare 116.
The unauthorized discharge of oil and hazardous substances may result in
the assessment by the Coast Guard of an administrative civil penalty of not
more than $5,000 per day of violation. In the case of discharges of haz-
ardous substances, the SPA Administrator may, in lieu of the Coast Guard
assessments, begin a civil action in district court under Section
311(b)(6)(B) to impose a penalty not to exceed $50,000.* EPA interprets
its enforcement authority under this section as applying only to hazardous
substances.
EPA and the Coast Guard have entered into an agreement regarding the
enforcement of Section 311, which governs which agency will take
enforcement action (see 44 Fed. Reg. 50785, August 29, 1979).
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Where such a discharge was the result of willful negligence or willful mis-
conduct by the owner, operator, or person in charge, the maximum liability
increases to $250,000. Note that civil penalties may not be assessed under
both Section 311 and Section 309.
Section 311(b)(5) requires any person in charge of a vessel, offshore
facility, or onshore facility to notify the Coast Guard or EPA immediately
of any discharge of a harmful quantity from such vessel or facility as soon
as he or she has knowledge of the discharge. Failure to notify the
government nay result in a criminal penalty of not nore than $10,000 or
imprisonment for not more than one year.
Discharges under Section 311 exclude those discharges permitted under
Section 402 or identified in an NPDES permit application and "caused by
events occurring within the scope of relevant operating or treatment
systems" [Section 311(a)(2)]. Discharges covered by Section 311 are
commonly known as spills, since they are generally unforeseen.
In addition to this discharge liability, Section 311(c) authorizes the
United States to remove and recover the oil or hazardous substance and to
recover the costs of removal up to the limits established in Section
311(f). To finance the cost of removal, Section 311(k) set up a revolving
fund of $35 million, which is also available to reimburse dischargers who
remove a discharge under very limited circumstances. One-half of this fund
has been transferred, however, for use under the Comprehensive
Environmental Response, Compensation, and Liability Act (known as
"Superfund").
Section 311 Regulations
Pursuant to Section 311, EPA has adopted regulations covering the following
categories:
* Oil dischargers -- 40 C.F.R. Part 110
• Oil pollution prevention — 40 C.F.R. Part 112
* Liability for pollution — 40 C.F.R. Part 113
• Civil penalties for oil pollution — 40 C.F.R. Part 114
• Designation of hazardous substances — 40 C.F.R. Part 116
* Reportable quantities of hazardous substances — 40 C.F.R. Part 117
• Notification to Coast Guard — 33 C.F.R. Part 15 (promulgated by
the Coast Guard)
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Chapter One Overview of the Clean Water Act
Dredged and Fill Material Permit Program
Section 301 of the CWA declares the discharge of pollutants unlawful except
in compliance with, among other things, Section 404. Section 404 autho-
rizes the Secretary of the Army, acting through the Chief of Engineers of
the Army Corps of Engineers, to issue permits for discharge of dredged or
fill material into specified locations [Section 404(a)], after considera-
tion of environmental guidelines [Section 404(b)(l)]. A permit may be
Issued even if the environmental guidelines would prohibit it based on the
economic impact on navigation and anchorage [Section 404(b)(2)]. The
Corps' action is subject to an EPA "veto" if the discharge will have
certain unacceptable impacts [Section 404(c)].
The 1977 amendments to the CWA authorized issuance of general permits [Sec-
tion 404(e)j, created certain exemptions from permit requirements [Section
404(f) and (r)], authorized transfer of part of the Corps program to the
states [Section 404(g) through (1)], and gave the Corps authority to
enforce conditions in the Section 404 permits that they issue [Section
404(s)]. The Corps regulations for issuing dredged and fill permits are
contained in 33 C.F.R. Parts 320 through 323. EFA's technical regulations
under Sections 404(b)(l), 404(c), and 404(g) through (1) are contained in
40 C.F.R. Parts 230 through 233.
Definitions
EPA and the Corps define dredged material as "material that is excavated or
dredged from waters of the United States" [33 C.F.R. §323.2(j); 40 C.F.R.
§232.2]. According to 33 C.F.R. §323.2(1), "discharges of pollutants Into
waters of the United States resulting from the onshore subsequent proces-
sing of dredged material that is extracted for any commercial use (other
than fill) are not included within [the term discharge of dredged material]
and are subject to Section 402...even though the extraction and deposit of
such material may require a permit from the Corps of Engineers." On the
other hand, run-off or overflow from a contained land or water dredged
material disposal area is handled under Section 404.
EPA and the Corps currently have different definitions of fill material.
EPA defines it as material that replaces an aquatic area with dryland or
that changes the bottom elevation for any purpose (40 C.F.R. §233.2). The
Corps defines it as "any material used for the primary purpose of replacing
an aquatic area with any land or changing the bottom elevation of a water
body. The term does not include any pollutant discharged into the water
primarily to dispose of waste, as that activity is regulated under Section
402..." [33 C.F.R. §323.2(m)]. EPA and the Corps are working together to
develop a common definition. In the meantime, EPA's definition is
operative. A discharge without a permit violates Section 301 regardless of
which permit (NPDES or Section 404) applies.
The dividing line between the Section 404 program and the NPDES program is
based on the type of pollutant involved. If the pollutant is dredged or
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fill material, Section 404 applies and the Section 404
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Chapter One Overview of the Clean Water Act
State Section 404 Programs
EPA also may approve state Section 404 programs, review the performance of
such programs, object to state permits that are outside the requirements of
Section 404, and take enforcement action on violations of state-issued Sec-
tion 404 permits. As of May 1985, one state had an approved Section 404
program. (Note that states may take over the Section 404 program for only
some of the waters of the United States. The Corps always retains juris-
diction over waters presently used, or susceptible to use, as a means to
transport interstate commerce, including tidal waters and adjacent
wetlands.)
Enforcement Provisions
Administrative Orders
Sections 309(a)(l) and (3) of the CWA authorize EPA to issue administrative
orders that require compliance with the Act in cases of violations of per-
mit conditions or limitations or of discharges without a permit. Section
309 is not available to a state for enforcement purposes; a state must have
independent state law provisions to enforce an NPDES permit. EPA may also
issue orders to remedy violations of:
* Effluent limitations — Section 301;
* Water quality-related effluent limitations — Section 302;
» New source performance standards — Section 306;
• Toxic and pretreatment effluent standards — Section 307;
• Data disclosure and inspections — Section 308; and
* Sewage sludge disposal — Section 405.
Section 309(a)(4) requires EPA to send a copy of an administrative order to
the state in which the violation occurs. EPA must also serve a copy of an
order issued to a corporation on any appropriate corporate officers. These
orders are subject to judicial review under Section 509. Finally, orders
issued under Section 309(a)(5) must specify the time foe compliance. Uhere
EPA issues an order regarding a Section 308 violation, it cannot take
effect until the affected person has an opportunity to discuss the viola-
tion with the Administrator. The CWA does not authorize administrative
assessment of penalties by EPA. Chapter Six discusses administrative
enforcement in greater detail.
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Chapter One Overview ofthe Clean Water Act
Injunctive Relief
EPA can obtain injunctive relief pursuant to Sections 309(b), 309(f),
402(h), and 504. Section 309(b) authorizes the Administrator to seek a
permanent or temporary injunction for any violation for which he or she
could issue an administrative order. Federal district court has jurisdic-
tion over such violations. Again, EPA must notify the state of its action.
Section 504 authorizes EPA to bring an emergency action to restrain a dis-
charge of pollutants that is presenting an imminent and substantial endan-
germent to human health and welfare. However, the use of Section 504, more
clearly than Section 309(b), is discretionary. [See Weinberger v. Romero-
Barcelo, 456 U.S. 305 (1982); Committee for the Consideration of the Jones
Falls Sewage System v. Train, 387 F. Supp. 526 (D. Md. 1975); but compare
Sierra Club v. Train, 575 F. 2d 485 (5th Cir. 1977) with United States v.
Phelps Dodge Corp., 391 F. Supp. 1181 (D. Ariz. 1975).
Section 309(f), added in the 1977 amendments to the CWA, authorizes a
separate civil action against an industrial contributor and a receiving
POTW for violation of pretreatment requirements. If the owner or operator
of a treatment works does not commence enforcement action within 30 days of
the Administrator's notification of a violation, the Administrator may
commence a civil action for appropriate relief, including but not limited
to a permanent or temporary injunction against the owner or operator and
the industrial contributor. EPA must also notify the state of this action.
Civil Penalties
Section 309 authorizes EPA to bring a civil action for "violation of any
condition or limitation which implements sections 301, 302, 306, 307, 308,
318, or 405." Alternatively, in states that have been approved for primary
enforcement authority, EPA may first notify the appropriate state and the
persons in alleged violation and give the state 30 days to bring its own
enforcement action. This is known as a "notice of violation." Section
309(d) provides that violators of these sections, of administrative orders,
or of permit conditions implementing these sections are subject to civil
penalties of up to $10,000 for each day of violation. The federal district
court in which the defendant is located, resides, or is doing business has
jurisdiction. It is Agency policy to recover from a defendant at least the
economic benefit gained through noncompliance. See Civil Penalty Policy,
July 8, 1980, contained in the Water Compliance/Enforcement Policy
Compendium.
When a state receives NPDES program approval, it assumes primary enforce-
ment responsibility, and enforces NPDES requirements under state law.
Under 40 C.F.R. §123.27, in order to be approved, the state NPDES program
must be able to assess at least $5,000 a day for each civil violation.
However, EPA may still intervene in a state enforcement action or take
direct action. The SPA Policy Framework for State/EPA Enforcement Agree-
ments discusses criteria for EPA involvement in an enforcement action.
Chapter Eight details the EPA civil judicial enforcement program.
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Chapter One Overview of the Clean Water Act
Criminal Penalties
Any person who willfully or negligently violates a permit issued by EPA or
by a state under an EPA-approved program, discharges without a permit, or
violates other NPDES program requirements is subject to a criminal penalty
of up to $25,000 a day, or a year's imprisonment, or both under Section
309(c)(l). The Act also provides a penalty of up to $10,000 or six month's
imprisonment for making knowing and false statements in any application or
report, or for tampering with monitoring equipment! Chapter Nine contains
a detailed discussion of the EPA criminal enforcement program.
Contractor Listing
Section 508 of the CWA and Executive Order 11738 authorize EPA to preclude
certain facilities from obtaining government contracts, grants, or loans,
if the facility is the basis of criminal or civil violations of water
pollution control standards. The contractor listing program allows EPA to
place the facility on the "List of Violating Facilities" after providing
certain procedures to the respondent under 40 C.F.R. Part 15, including an
informal Agency hearing called a "listing proceeding."
EPA proposed revisions to Part 15 on July 31, 1984 (49 Fed. Reg. 30628) to
provide for mandatory listing for criminal convictions and to clarify the
procedural rights of respondents in listing proceedings. As discussed in
Chapter Six, contractor listing can be a very effective enforcement tool,
particularly where previous formal enforcement proceedings (such as
administrative orders, court orders, or consent decrees) have not resulted
in compliance.
Citizen Suits
Section 505 provides for two types of citizen suits. First, any citizen
may commence a civil action on his or her own behalf against any other
person, including the United States and any government agencies, who is
alleged to be in violation of effluent standards or limitations under the
Act (generally NPDES permit violations) or in violation of a compliance
order issued by EPA or the state. Second, a citizen may commence a civil
action against the Administrator for his or her alleged failure to perform
any nondlscretionary duty under the Act. U.S. district courts have juris-
diction in each of these cases.
Prior to bringing a citizen suit against a violator, the citizen must
provide 60 days' notice to EPA, to the affected state, and to any alleged
violator of the standard, limitation, or order. A citizen's suit brought
against the Administrator requires 60 days' notice to the Administrator.
The 60-day notice provision gives EPA the opportunity to consider enforce-
ment against the alleged violator. The procedures governing notice are
contained in 40 C.F.R. Part 135. Such notice is not required for viola-
tions of NSPS and toxle effluent standards. Citizen actions that could
otherwise be brought under the Administrative Procedure Act, federal
questions of jurisdiction, and other provisions of law do not require the
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Chapter One Overview of the Clean Water Act
60-day notice. [See NRDC v. Train, 510 F. 2d 692 (D.C. Cir. 1974).] Case
law on the availability of alternate jurisdictional grounds varies from
district to district.
Citizens may recover attorneys' fees and court costs "whenever the court
determines such award is appropriate" [Section 505(d)]. Where EPA or the
state is diligently prosecuting an enforcement action against a violator, a
citizen suit may not proceed against that violator; however, the citizens'
group may then intervene as a matter of right.
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Chapter One
5 Exhibits
This section contains the following exhibits:
Exhibit 1-1: National Effluent Guidelines
Exhibit 1-2: Approved State NPDES Programs
Exhibit 1-3: Key Sections of NPDES Regulations
Exhibit 1-4: General NPDES Permits by Category
CWA Compliance/Enforcement1-29'Guidance Manual 1985
-------
Chapter One Exhibits
CWA Compliance/Enforcement1-30Guidance Manual 1985
-------
Chapter One
Exhibit 1-1
National Effluent Guidelines
(Including Pretreatment Categorical Standards)
EFFLUENT GUIDELINES
WOPCS£D AND rWL BILES - PRIMARY CATDGORIES
FEDERAL RBSISTER CITATIONS
(1979 -
2/22/85
40 CFR PAig TSfPS HUE
* 031LCQU11IG
fttaat II (CartMking)
* ELECTRICAL/ELECTSCNIC CWGNHtlS
Phase It ,
467 PKJC6ED
PBOULCATICN
Correct lor
WJtice (ICBI
461 nOtCBEB
PROUICXTICN
Correction
Correction
notice
434 HCtfOSEP
PBCHJLCATICN
Correction
Sit. of Commit
Notica (ICBI
465 PROPOSED
Fln&l Jteond.
Correction
mONJUATION
Correction
Notiot lies)
pKJtacAncM
Final mend.
PKJKLGATION
Incartn Final/
Prop, MM.
Final Aeniffini
ntic* (ICBI
NOtiC* (ICBI
FRcnaCATiOM
Correction
11/05/82
09/30/83
10/29/82
02/27/84
12/30/80
09/30/82
a —
12/30/80
01/31/83
1V09/83
10/29/82
08/04/83
08/11/82
03/31/83
02/28/83
11/30/83
47 PR 52626
48 PR 49126
49 FR 11629
SO FR 4513
47 FR 51052
49 PR 9108
49 FR 13879
49 PR 27946
49 PR 47925
46 FR 3136
47 FR 45382
48 FR J3321
49 FR 19240
49 PR 24388
SO re 4513
46 PR 2934
47 FR S4232
48 PR 31401
48 PR 41409
49 FR 33648
48 FR 6268
48 PR 52380
49 FR 14104
SO PR 4513
47 FR 51278
48 FR 36942
48 PR 41409
SO FR 4872
47 FR 37048
48 FR 15382
48 FR 45249
«» FR 5921
49 FR 34823
50 PR 4513
48 PR 55690
49 PR 105S
11/23/82
10/24/83
03/27/84
01/31/85
11/10/82
03/09/84
04/09/84
07/09/84
12/07/84
01/13/81
U/13/82
11/01/83
QS/04/84
08/13/84
01/31/85
01/12/81
12/01/82
07/08/83
09/1S/83
08/24/84
02/10/83
11/17/83
04/10/84
01/31/85
11/12/82
08/15/83
09/15/83
02/04/85
08/24/82
04/08/83
10/04/83
02/16/84
09/04/84
01/31/85
03/09/83
12/14/83
01/09/84
aujnatuni
Octcbar 26. 19821 August 2,
( ) ia Chi projected oct«Jule approved by d» court on fequat 25, 1982;
1983; January 6, 1984i July 5, 1984; «nd January 7, 198S.
MOTEl THIS LtSTINO DOCS MOT tNOUDB RULBWJtWO aCnvCTIES SUBSBOUBm.* PUBUSHED 8ETOEBN ffOKSM. «ND PHCMJWATION
UNLESS THE SCHEDULED EKNACMTW HAS NOT YBT BEEN COPLETED. THESE, NO PUBLICATIONS ISSUED PRIOR TO 1979.
ARE IDtNTtriEO IN THE PREAMBLES TO EACH PROLTCATED RfCUUITW.
CWA Compliance/Enforcement
1-31
Guidance Manual 1985
-------
ChapterOne
Exhibit 1-1
INOCTRIAL TECHNOLOGY OIVISION
wo FINM. Kites - pumm CATSJMUES
(1979 - Pramt)
Industry
IB cm tact TYPE HULK
sigw
recaw. Rteisrm CITATION
(ft*tn*tnnt - PSES only)
413
HORSED 01/24/T8
HOtlUWnOI 08/09/T9
CBmctlan —
Cornet ton —
Prop. Amend. —
Prop. Aamd. —
Kop. Mind.
rlnal Mini.
Comet ion
NCCic* (IC8) —
41 FX
44 ra
44 PR
45 fl
4i PR
4« n
46 nt
47 nt
48 re
48 rx
IB nt
48 rx
49 FR
iSM
52590
S633Q
19245
9461
4J972
18462
2774
12462
43MO
414U9
J4IJ21
raiOKZS (NK*1
* nOKWIC fflOUCAlfl
«ad Cuting)
Fhn> II
HOi t
*4M
41$
41)
420
WDPOSB3
Hat la*
(Add. D*t«)
Notie*
(Add.
10/79/83
4? « 51512
49 IB 102SO
so rt 6172
W/U7/19
lU/ul/19
91/25/WI
07/U3/8U
01/2S/H1
09/02/81
08/11/82
01/21/U3
07/15/81
09/J6/03
09/15/1J
W/U4/U4
1V15/K2
03/2U/H4
02/1S/*S
. 97AO/80
PIOHLOOIOH 06/16/82
Correction —
ffCfOBCO
HOWLOI7UM
B7/24/00
Oametion
' Oornetlon
Mnal Jtaxid.
Oar net ion
Prop, tend.
COrnct Ion
Pinil **nd.
Cornet Ion
Cornelian
07/26/84
12/24/10
oi/M/sa
4S nt 49450
47 m 2B26U
47 re KJ36 12/UU/82
48 m 49409 10/25/81
49 n 11402 U/22/84
49 fK 17»4 U9/2VH4
46 nt usa
4? rtl 23259
47 IH 24SI4
47 fit 417M
a nt sins
41 nt 46944
48 TO S1647
49 nt 21024
49 R 24726
49 m 25634
01/07/91
OS/27/U2
09/22/82
11/U/BJ
JU/14/IU
11/10/Bi
05/17/84
06/15/84
Ut/22/tf4
* Administrator's tl^natunj ( ) Ls tlw projtctad acfttdul* ippcowd by tlw court on tequst 25. 19U2i
October 26, 19621 Auguit 2, U81i OtnuilV t, 1984i July 5, 1984| *nd Jinuary 7, 1985.
mis usriHG BOBS nor wcxcne IDUKUING ACTIVITICS o/aeeEiumttT PUBLISMD BEKCB* PBDKSW. MO
UNIXSS THE SCHEXUUS FKMAMTTCN HAS WT WT BEEN OXPUTO). THESE, MID PUBLICAT1CHS ISSUtD PIUUK TU
w
-------
Chapter One
Exhibit 1-1
EFFIUENT GUIDELINES DIVISION
PHUHJSED AND FINAL RULES - PRIMARX CAIB30RIES
FEDERAL REGISTER OTATICNS
(1979 - Present)
2/22/85
- continued -
Industry
40 CPU PART TKPE MJLE
FEEERAL REGISTER CITATION
• LEAnSR TANNING i FDJISHDS
425
1 METAL
NONFCRROUS HDUS
Phase I
n.
NONfOOOJB HEtALS FORMING
433
t 413
421
421
471
PROPOSED 06/13/79
FflCKUUATICN 11/07/82
Correction/
Notice
(Add. Data)
final ,
final ,
Correction
Correction
Correction/
final. Jtend.
(PSES)
Notice
(Add. Cuts)
Notice
(tfeiver, Reg. II)
Notice
(Waiver, Reg. II)
PROPOSED 03/11/82
PROHJUSAJIOM 07/03/83
final Attend. —
Correction —
PROPQ5GD
PROULCAnCN
Correction
Oomction
01/31/83
02/23/84
03/13/M
Huruoti)
Notice
(Hearing)
Notice —
(Cement Period)
PRXJUATKM (07/85)
02/03/84)
Notice —
(Hearing)
Notice —
(Add. Data)
PROUlCAnON (06/85)
44 PR 38746
47 PR 52848
48 PR 30U5
48 FR 31404
48 FR 32346
48 FR 35649
48 FR 41409
49 FR 17090
49 FR 42794
49 PR 44143
47 FR 38462
48 FR 32462
48 FR 41409
48 FR 43680
48 FR 7032
49 FR 8742
49 FR 26738
49 PR 29792
49 FR 26352
49 R) 29625
49 FR 33026
4} FR 8112
49 FR 10132
SO PR 4872
07/02/79
11/23/82
06/30/83
07/08/83
07/15/83
08/05/83
09/15/B3
04/23/84
10/28/84
11/02/84
08/31/82
07/15/83
09/15/83
09/26/83
02/17/83
03/09/94
06/29/84
07/24/M
06/27/M
07/23/84
08/20/84
03/05/84
03/19/84
02/04/85
• Administrator's signature! ( ) is the projected schedule approved by the court on Aicust 25. 19821
OEtooer 26. 1982) Augmt 2. 1983i January 6. 1984, July 5, 19841 and Jamary 7, 1985.
MOTE: THIS USTTNG DDES NOT INCLUDE RULDWJtINC ACTIVITIES SUBSEQUENTLY PUBLISHED 8E1XSI PROPOSAL AND PROHUICAIION
UNLESS IKE SOHEKJUD PROrUUAnON HAS NOT YET BEEN COMPLCTED. THESE, AND PUBLICATIONS ISSUED PRIOR TO L979,
Are uamriED at rat PREWBUS 10 EACH pROMUuxns REGULATION.
CWA Compliance/Enforcement
1-33
Guidance Manual 1985
-------
Chapter One
Exhibit l-l
Sffwait GUIDOIMiS DIVISION
FfOTOSHS ATO FINAL RULES . PRIfWW OdSMMES
PiE£!RAL B&SXSfSft CTHATXQNS
(197) -
2/32/85
- continued -
lnamtry_
* ORE «NING
OTGW 1C CHEMCALS AND KMIK3 *
SWIHBftC FIBERS
PESTICIDES.
440
4U
» 4 IS
451
HDP06ED
aotic*
(Rooonto)
os/23/82
U/OS/82
02/28/83
(Md. OBta)
•otio
Period)
(Mil Dual
* WIRXBfl MFtNING.
' MWWCEUnCUS.
419
439
(03/85)
11/17/79
09/10/82
ROKKEB U/97/82
IVMOCUBM 09/10/83
Om-twmm —
»tlo» (ICBI —
QDrraction
BCT cost
Biunaion
HOtlOB
PLASTICS IOLDHC b ROWING
4«3
02^53/84
U/04/84
4? PR 25632
47 TK 54598
4B TO 11S28
49 FR 34295
4? m S3994
48 FR 6250
49 ?R 244*2
49 TO 30752
» FR 1366
44 nt 7S92S
47 FR 46434
49 FR 34133
47 FR 13534
48 FR 49808
48 FR 50322
SO nt 4313
48 nt 49832
49 FR 1190
49 FR 8%7
49 PS 17978
49 FR 2714S
49 FR 5862
49 PR 49026
06/14/82
12/01/82
03/21/83
08/29/84
U/SO/82
02/»/W
06/13/14
08/01/64
01/24/85
12/21/79
10/18/82
08/28/84
11/26/82
10/27^3
11/M/B3
OV31/8S
10/27/83
01/10/84
03/09/8*
04/26/84
07/32/84
02/15/84
12/17/84
* **»u«la• 1985.
NCTTEl THIS LISTING OQGS HOT INCLUDE WLOVKDC MCnvRTES SDBSDOUOnLY PUBLISHED BCTWEQJ PRDPC6W. AND PROULCATtQN
UNLESS TOE soffnnm FWXJLOWIOH n*s tar KCT SEEK COVLRED. THESE, AND PUBLICATIONS ISSUED PRIOR TO 1979,
Am [DemriED IN THE PREAMBLES ID EACH tmsaam RHULATICN.
CWA Compllance/Eaforcemeat
1-34
Guidance Manual 1985
-------
Chapter One
Exhibit l-l
GUIOELINES OOTtSIW
PTOPOSED MID FINAL PULES - PRIMARY
RSCISI» CITAIKHS
(1979 - Promt)
2/5S/SS
- eontuuad -
Industry
40 QUART TYPE RULE
FEDERAL BtCISTER CTPglOM
* fOSttAffl BttKSUNG.
t BWER.
46J
430
S 431
PROPOSED
PHOHUUasrrai
final Mand.
final Mmd.
Trap-
PSUPQ6ED
PPCHUICAZICN
Nocica
(Add. CBU)
Comet ton
final *»r¥).
ytlpg (FDf)
Ouiivc'tlon
Public (fcat-ing
INPCCS Oicuion)
ttotloi
(Petition Donicd)
01/19/81
11/05/82
12/11/80
10/29/82
(Variance Omiedl
> (KB) —
ttotiot —
lament period)
' TOOTLE MILLS.
1 TIMBER.
423
410
429
18/83/80
PHCHJLCATICN 11/07/12
rinal Mend. —
PHDW36ED
PIOWLCATICN
*x.io«
(Add, Oital
Carraetion
10/1S/79
08/J7/8J
44 IK 8860
47 re 53172
48 re 31403
48 FR 41409
49 fR 18226
4« FR 1439
47 FR S200«
*8 m 11451
4* FR 13176
48 (R 31414
41 fft 43582
48 fS 45105
48 fS 45841
49 FR 40546
49 ID 40549
47 FR 5206*
48 FR 2804
45
47 FR 52190
41 HI 31404
44 FR 62204
47 re 38810
48 FR 1722
01/21/81
11/24/12
07/08/81
09/1S/SI
04/27/84
OVOS/81
11/18/82
03/U/83
03/30/83
07/03/H3
Of/lS/81
10/06/83
10/07/83
IQ/U/M
10/16/94
il/W/W
01/21/83
lo/14/ao
11/19/82
97/08/83
10/29/79
OB/02/83
01/14/83
48 m 39624 Q9/W83
PROPOSED 10/16/79
PKHKCAHCN 01/07/31
nnal .
44 FR 62810
46 m 3260
46 FR S7287
10/11/79
01/2S/S1
U/23/81
* Adunutntor'i •igmtumt ! ) Is the projected **eAil« «ppro«d 6y the Court on August 2S,
Octooer 2C. 1982; jtuQUSt 2. 1983: January «, I984i July 5, 1914; *nd Janury 7, 198S.
1982:
CWA Compliance/EaforcemenC
1-35
Guidance Manual 1985
-------
Chapter One
Exhibit 1-2
Approved State NPDES Programs
(as of May 1, 1985)
State
Alabama
California
Colorado
Connecticut
Delaware
Georgia
Hawaii
Illinois
Indiana
Iowa
Kansas
Kentucky
Maryland
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Jersey
New York
North Carolina
North Dakota
Ohio
Oregon
Pennsylvania
Rhode Island
South Carolina
Tennessee
Vermont
Virgin Islands
Virginia
Washington
West Virginia
Wisconsin
Wyomi ng
TOTALS
Approved State
NPDES Permit
Program
10/19/79
05/14/73
03/27/75
09/26/73
04/01/74
06/28/74
11/28/74
10/23/77
01/01/75
08/10/78
06/28/74
09/30/83
09/05/74
10/17/73
06/30/74
05/01/74
10/30/74
06/10/74
06/12/74
09/19/75
04/13/82
10/28/75
10/19/75
06/13/75
03/11/74
09/26/73
06/30/78
09/17/84
06/10/75
12/28/77
03/11/74
06/30/74
03/31/75
11/14/73
05/10/82
02/04/74
01/30/75
37
Approved To
Regulate Federal
Facilities
10/19/79
05/05/78
_—
—
—
12/08/80
06/01/79
09/20/79
12/09/78
08/10/78
_
09/30/83
__
12/09/78
12/09/78
01/28/83
06/26/79
06/23/81
11/02/79
08/31/78
04/13/82
06/13/80
09/28/84
—
01/28/83
03/02/79
06/30/78
09/17/84
09/26/80
—
, —
—
02/09/82
—
05/10/82
11/26/79
05/18/81
27
Approved State
Pretreatment
Program
10/19/79
—
_
06/03/81
—
03/12/81
08/12/83
, —
—
06/03/81
—
09/30/83
—
06/07/83
07/16/79
05/13/82
06/03/81
—
09/07/84
—
04/13/83
—
06/14/82
—
07/27/83
03/12/81
—
09/17/84
04/09/82
08/10/83
03/16/82
—
—
—
05/10/82
12/24/80
—
21
CWA Compliance/Enforcement
1-36
Guidance Manual 1985
-------
Chapter One Exhibit 1-3
Key Sections of NPDES Regulations
EPA's NFDES regulations are contained in 40 C.R.F. Part 122-125. The
key sections in Part 122, which cover substantive requirements, are:
* 122.2 Definitions
* 122.3 Exclusions
* 122.4 Prohibitions
* 122.6 Continuation of expired permits
• 122.7 Confidentiality of permits, permit applications,
and effluent data
* 122.21 Permit application requirements, including testing
requirements
* 122.22 Who must sign a permit application
* 122.28 General permit program requirements
* 122.29 Requirements for new sources and new discharges
• 122.41- Required effluent limitations and permit conditions
122.45 for NPDES permits
* 122.46 Duration of permits
• 122.47 Schedules of compliance
* 122.48 Recording and reporting monitoring results
* 122.50 Disposal of pollutants into wells
* 122.61 Tranferring permits
* 122.62 Permit modification and revocation
• 122.64 Permit termination
Part 123 contains requirements for state NPDES programs.
* 123.2 Definitions
* 123.21- Contents of state program submission
123.24
* 123.25 Substantive NPDES requirements applicable to states
CWA Compliance/Enforcement 1-37 Guidance Manual 1985
-------
Chapter One Exhibit 1-3
* 123.26- Compliance evaluation and enforcement requirements
123.27
* 123.44 EPA review of state permit
• 123.61 EPA approval process for state program requests
• 123.63 Criteria for EPA withdrawal of state programs
Part 124 contains procedures for issuing NPDES permits and holding
hearings on EPA-issued permits as follows:
* 124.11- Procedures
124.21 and
124.51-
124.61
* 124.71- Evidentiary hearings for EPA-issued NPDES permits
124.91
Part 125 contains regulations for setting effluent limitations in NPDES
permits including variances.
CWA Compliance/Enforcement 1-38 Guidance Manual 198S
-------
Chapter One
Exhibit 1-4
General NPDES Permits by Category
(as of May 1985)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
*
**
CATEGORY DRAFT PROPOSED
Coal mines
Placer mines X
Deep seabed mining
Sand and gravel extraction X(2)*
Onshore oil and gas X(3)
Stripper wells
Coastal oil and gas X(2)
Offshore oil and gas X(5) X
Construction activities X
(dewatering)
Hydrostatic testing (natural X(3)
gas transmission pipelines)
Petroleum storage and transfer;
marketing terminals
Noncontract cooling water
uncontaminated storm water
Seafood processors
(onshore and at sea)
Trout fish hatcheries X
Animal feedlots
Minor POTWs X(6)
(secondary treatment)
Ballast water treatment X
facilities
Log transfer facilities X
Water supply X
( ) indicates the number of permits — usually a number of
covered by the same category permit.
Includes expired BPT permits.
FINAL
X
X
X
X(7)**
X
X
X(4)
X(4)
X
X(3)
states
CWA Compliance/Enforcement
1-39
Guidance Manual 1985
-------
Chapter One Exhibit 1-4
CATEGORY DRAFT PROPOSED FINAL
20. Army: Water Purification
Mobile Unit
21. Navy: Weapons Training (Vieques,
Puerto Rico)
22. Stormwater (Lake Tahoe)
TOTAL 21 9 25
CWA Compliance/Enforcement 1-40 Guidance Manual 1985
-------
Chapter Two
General Operating Procedures
Chapter Contents Page
1 Introduction 2-1
2 Primary Office Responsibilities 2-3
Regional Administrator 2-3
Headquarters 2-4
Department of Justice and Referral Procedures 2-6
3 Organizational Charts 2-9
4 Exhibits 2-15
2-1: Case Referrals for Civil Litigation 2-17
2-2: Implementation of Direct Referrals for
Civil Cases Beginning December 1, 1983 2-22
CWA Compliance/Enforcement 2-i Guidance Manual 1985
-------
Chapter Two Contents
CWA Compliance/Enforcement 2-ii Guidance Manual 1985
-------
Chapter Two
1 Introduction
The Environmental Protection Agency and the Department of Justice (DOJ)
share the federal government's compliance and enforcement activities for
water pollution control laws.* The basic framework for the responsibil-
ities of each EPA office that participates in enforcement activities is
found in the Administrator's memorandum of July 6, 1982, entitled "General
Operating Procedures for the Civil Enforcement Program," and the memorandum
of October 27, 1982, entitled "General Operating Procedures for the
Criminal Enforcement Program." (Both of these documents are contained in
the EPA General Enforcement Policy Compendium.)
This chapter first describes the roles of the various EPA offices that are
involved with administrative and civil enforcement of water pollution vio-
lations. Second, the chapter discusses procedures for EPA referral of
cases to DOJ. Finally, the chapter contains organizational charts of EPA
offices.
EPA's enforcement program includes both compliance-oriented and legal-
oriented activities. The compliance activities are primarily the responsi-
bility of EPA's program offices while the legal-oriented activities are
principally charged to the Regional Counsel or the Headquarters' Office of
Enforcement and Compliance Monitoring (OECM). Issues of legal interpreta-
tion are the responsibility of the Office of General Counsel. Many
enforcement activities are not clearly "compliance" or "legal" as they
involve elements of both. Where both elements are present, the EPA
employee must coordinate his or her work with the activities of the other
participating offices. For example, when an EPA inspector is denied access
to an NPDES-permitted facility, he or she must consult the Office of
Regional Counsel as to whether an administrative warrant should be
obtained.
The U.S. Army Corps of Engineers and the Coast Guard also have enforce-
ment responsibilities under Sections 404 and 311 of the CWA,
respectively.
CWA Compliance/Enforcement 2-1 Guidance Manual 1985
-------
Chapter Two Introduction
CWA Compliance/Enforcement 2-2 Guidance Manual 1985
-------
Chapter Two
2 Primary Office Responsibilities
Ihe following describes the basic administrative and civil enforcement
functions as they are divided among the various EPA offices.
Regional Administrator
Program Office
* Identifies instances of noncompllance;
* Establishes priorities for handling instances of noncorapliance;
* Evaluates the technical sufficiency of actions designed to remedy
violations;
* Identifies for formal enforcement action those cases that cannot be
resolved informally;
• Provides technical support necessary for developing cases and
conducting litigation;
• Issues NPDES permits (where the state is not approved by EPA to
administer an NPDES program);
• Reviews permit variance requests;
• Issues notices of violation;
* Issues administrative orders under Section 309 of the Clean Water
Act (GWA); and
• Assists in developing civil actions for referral to DOJ (for direct
referrals) or via Headquarters' Office of Enforcement and
Compliance Monitoring (OECM).
CWA Compliance/Enforcement 2-3 Guidance Manual L985
-------
Chapter Two Primary Office Responsibilities
Regional Counsel
• Acts as attorney for program offices;
* Assists program office in drafting the terms and conditions of
NPDES permits and responses to variance requests;
• Assists program office in drafting notices of violations and
administrative orders, and drafts complaints (in cooperation with
DOJ);
• Prepares case referrals and formally concurs in civil referrals
prior to signature by the Regional Administrator;
» Requests DOJ (through the Regional Administrator) to file a
complaint, where EPA policy permits direct referral;
• Ensures consistency of action with OECM guidance;
* Negotiates enforcement matters and settlements;
• Attends any negotiations in which outside parties are represented
by counsel;
• Serves as lead attorney in handling specific enforcement actions
[consistent with Section VII(B) of the May 7, 1982, memorandum on
regional reorganization]:
— Manages case for EPA,
— Coordinates case development for EPA, and
Coordinates litigation activity with DOJ; and
• Provides legal representation for the Agency in administrative
proceedings (evidentiary hearings) originating in the Region and in
appeals from those proceedings.
Headquarters
Program Office: Assistant Administrator for Water
• Manages national program policy matters;
• Establishes national compliance and enforcement priorities;
• Provides overall direction to and accountability measures for the
compliance and enforcement program;
* Maintains the Permit Compliance System (PCS), which tracks permit
issuance and compliance;
CWA Compliance/Enforcement 2-4 Guidance Manual 1985
-------
Chapter Two Primary Office Responsibilities
Office of General Counsel
• Provides legal interpretation of applicable statutes and regula-
tions to support the water enforcement programs; and
• Has lead responsibility, in consultation with OECM, for defensive
litigation arising out of enforcement actions.
National Enforcement Investigations Center
The National Enforcement Investigations Center (NEIC), which reports to the
Assistant Administrator for Enforcement and Compliance Monitoring, is
located at the Denver Federal Center. The NEIC functions as a national
technical and financial resource and as an investigative unit. NEIC has
expertise in investigation and evidentiary discovery, assists in case
development, and provides litigation support. Regional Administrators and
the Assistant Administrator for Water should involve NEIC in cases that
have precedential implications, national significance, or are multi-
regional in nature.
Department of Justice and Referral Procedures
Section 506 of the Clean Water Act and an IPA/DOJ Memorandum of
Understanding (MOU), issued on June 15, 1977, establish the basic relation-
ship between DOJ and EPA in conducting civil judicial litigation. The MOU
is found in the General Enforcement Policy Compendium (Policy #GM-3). The
relationship is defined in greater detail by the April 8, 1982, memorandum
entitled "Draft DOJ/EPA Litigation Procedures." A copy of that document,
commonly referred to as the "Quantico (VA) Guidelines," can also be found
in the General Enforcement Policy Compendium (Policy #GM-8). EPA issued
guidance on case development and referrals in a September 7, 1982, memoran-
dum from the Acting Enforcement Counsel, entitled "Case Referrals for Civil
Litigation contained in the General Enforcement PolicyCompendium (Policy
#GM-13)." This guidance is also contained in Exhibit 2-1.
On September 29, 1983, the Deputy Administrator established a procedure for
direct referral of certain routine cases in a letter to the Acting
Assistant Attorney General. Under the terms of this letter, EPA Headquar-
ters has waived concurrence in certain types of routine civil cases. The
letter is also contained in the EPA Water Compliance/Enforcement Policy
Compendium. Under the procedures for direct referral, the following cases
will be referred directly from EPA Regional Offices to the Land and Natural
Resources Division of DOJ:
* Cases involving discharges without a permit by industrial
dischargers;
• All cases against "minor" industrial dischargers;
CWA Compliance/Enforcement 2-6 Guidance Manual 1985
-------
Chapter Two Primary Office Responsibilities
* Cases involving failure by industrial dischargers to monitor or
report;
• Referrals to collect stipulated penalties from industrial
dischargers under consent decrees; and
* Referrals to collect administrative penalties under Section 311(j)
of the CWA.
On November 28, 1983, the Assistant Administrator for Enforcement and Com-
pliance Monitoring issued a memorandum to EPA enforcement personnel, which
provided guidance on implementing the September 29, 1983, direct referral
agreement. These two documents are contained in Exhibit 2-2.
CWA Compliance/Enforcement 2-7 Guidance Manual 1985
-------
Chapter Two Primary Office Responsibilities
CWA Compliance/Enforcement 2-8 Guidance Manual 1985
-------
Chapter Two
3 Organizational Charts
This section contains the following organizational charts:
* U.S. Environmental Protection Agency
* Office of Enforcement and Compliance Monitoring
* Office of Water
CWA Compliance/Enforcement 2-9 Guidance Manual 1985
-------
Chapter Two Organizational Charts
CWA Compliance/Enforcement 2-10 Guidance Manual 1985
-------
Chapter Two
Organizational Charts
u.i. oniMNCMTM. pranEoriM ABDCT
STAFF OFFICES
Adaiftlstreflv* t«v Judge*
Civil Right*
SKI 11 and Dludvantagad
Binlim* Utllljetlon
Sclonco Mitwey Board
ASSOCIATE ADMINISTRATOR
FOR IHTERNATIONAL ACTIVITIES
ASSISTANT
ADMINISTRATOR FOR
ADMINISTRATION AM)
RESOURCES MMUfiDCNT
OFFICE OF THE
COMPTROLLER
OFFICE OF
ADMINISTRATION
OFFICE OF IWOR-
WTION RESOURCES
MANAGEMENT
OFFICE OF
ADMINISTRATION
Cincinnati, OH
OFFICE OF
ADMINISTRATION
RIP, NC
ASSISTANT
ADMINISTRATOR FOR
ENFORCEMENT AND
COMPLIANCE MQNITOHINO
-
ASSOC. ENFORCEMENT
COIMSa-VATEII
ASSOC. ENFORCEMENT
CCUJKSEL-AIR
ASSOC. ENFORCEfCNT
COUNSEL -VASTE
ASSOC. ENFORCEMENT
COUNSEL-SPECIAL
LITIGATION I POLICY
NATIONAL ENFORCEMENT
INVEST ISATIONS CENTER
OFFICE OF COMPLIANCE
ANAUTSIS AND PROQRW
OPERATIONS
GENERAL
PESTICIDES AND
TOXIC SUBSTANCES
DIVISION
HATER
DIVISION
AIR AND
RADIATION
DIVISION
QMNTS, CONTRACTS
AMD GENERAL
MNINISnUTIQN
DIVISION
SOLID HASTE
AMD EMERGENCY
RESPONSE DIVISION
ASSISTANT ADMINISTRATOR
FCR HATER
OFFICE OF
WTER WCRCOCNT
AKD POUTS
OFFICE OF
HATER RE8ULATIQNS
AND STANDARDS
OFFICE OF
HATER PROGRAMS
OPERATIONS
OFFICE OF
DRIMIIW HATER
ASSISTANT AOMINISTRATOR
FOR SOLID VASTE AND
CNERGENCr RESPONSE
OFFICE OF
SOLID HASTE
OFFICE OF EMERGENCY
AND REMEDIAL
RESPONSE
OFFICE OF
HASTE PHOORAW
ENFORCEMENT
ASSOCIATE ADMINISTRATOR
FOR REGIONAL OPERATIONS
ASSISTANT
ADNINISTIUTOR FOR
POLICY AM)
EVALUATION
-
OFFICE OF
POUCT ANALYSIS
OFFICE OF
STAMBAMM AND
REGULATIONS
OFFICE OF
ACCOUNTABILITY
AND EVALUATION
ASSISTANT
AOMINISTRATOR FOR
EXTERKAL AFFAIRS
OFFICE OF
INTEHSOVERMCNTAL
LIAISON
OFFICE OF
OMGRESSIONM.
LIAISON
OFFICE OF
PUBLIC AFFAIRS
OFFICE OF
FEDERAL
ACTIVITIES
INSPECTOR GENERAL
-
OFFICE OF
AUDIT
OFFICE OF
INVESTIGATION
OFFICE OF MAMAOE-
MENT AM) TECHNICAL
ASSESSMENT
ASSISTANT ADMINISTRATOR
FOR AIR AND RADIATION
-
OFFICE OF AIR OUALITt
FtANNIM AND
STANDMIS
OFFICE OF MOBILE
SOWCES
OFFICE OF
RADIATION PROGRAMS
ASSISTANT ADMINISTRATOR
FOR KSTICIOCS AND TOXIC
SUBSTANCES
OFFICE OF
PESTICIDES
PROGRAMS
OFFICE OF
TOXIC SUBSTANCES
ASSISTANT ADMINISTRATOR
FOR
RESEARCH AND KVELCfwENT
OFFICE OF MONITORING
SrSTENS AND
QUALITY ASSURANCE
OFFICE OF EH»IRO«-
HENTAL EWINEBtINQ
AND TECHNOLOGY
OFFICE OF ENVIRON-
MENTAL PROCESSES AM)
EFFECTS RESEARCH
OFFICE OF
HEALTH RESEARCH
III!)
RES 10" 1
BOSTON
REGION II
NEK row
REGION III
PHILADELPHIA
RESIGN IV
ATLANTA
REGION >
CHICAGO
1
REG 1 OK 11
DALLAS
|
RC6IOR *ll
KANSAS CITT
1
REGION VIII
DEWED
1 1
KEGICN IX
SAM FRANCISCO
REGION X
SEATTLE
CWA Compliance/Enforcement
2-11
Guidance Manual 1985
-------
Chapter Two
Organizational Charts
ones op BWRcaejr AD OMUAICB monmnc
ASSISDOT ACMtNISTRATOR
CF OffOOSfOT AH)
OMFLIAMZ MMITORDB
Of floe of
Analysis aid
Narlonal
Center
Air
Vast*
ttlnlnal
and
T1 rlmt-lrr.
CWA Compliance/Eoforcement
2-12
Guidance Manual 1985
-------
Chapter Two
Organizational Charts
ivnizo wm
Iranlcal Sup-
pore Ettvtalon
(Oidimtl)
ttnltorlng &
Data Support
Mvision
CWA Compliance/Enforcement
2-13
Guidance Manual 1985
-------
Chapter Two Organizational Charts
CWA Compliance/Enforcement 2-14 Guidance Manual 1985
-------
Chapter Two
4 Exhibits
This section contains the following exhibits:
Exhibit 2-1: Case Referrals for Civil Litigation
Exhibit 2-2: Implementation of Direct Referrals for Civil Cases
Beginning December 1, 1983
CWA Compliance/Enforcement 2-15 Guidance Manual 198S
-------
Chapter Two Exhibits
CWA Compliance/Enforcement 2-16 Guidance Manual 1985
-------
Chapter Two 2~l
Case Referrals for Civil Litigation
^^
i 4%
I ^SZ
*r ^P
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WAIMINOTOH. DC «4iO
S82
omct of
USM, *HB (H*OHC>MCNT COMNICk
HEMQRANPU't
SUBJECT: Case Referrals for Civil-Litigation
FROM? Hiehael A. Brown \ll>>^-^.
Acting Enforcement Counsel
Deputy General Counsel
TO: Regional Counsel!
A review of our recent enforcement reftrrtls for proposed
civil litigation I/ and conferences with the Departnent of Justice
have revealed thaT certain points relating to case development
and litigation activities must again be emphasized and some new
"ground rules' should be set forth. This memorandum is intended
to supplement th« General Operating Procedures memorandum governing
EPA's enforcement activity which was issued on July 6, 1982.
Quality of Referrals
I want to stress that a case should not be forwarded to
Headquarters for referral to DOJ unless you fully intend that the
:ase should be filed. Sending a case forward merely to get credit
for the ease is a waste of your tine and ours. We want to
concentrate on properly developed eases that will actually be
filed, not merely pi>per to be reierred to DOJ that results in nn
action. In addition, referrals to Headquarters and DOJ for thp
purpose of applying pressure on a party to settle should not be
made unless the Regional Office is willing to carry the case.
through a suit.
My review of the past numbers of referrals by EPA to DOJ
compared to the actual number of cases that are filed reveals
that past practices resulted in a considerable disparity between
the two numbers. You, and especially the Regional Administrator,
should be prepared to support a cise that is referred to
Headquarters all the wty through trial.
T7This memorandum applies only to referrals for civil litigation.
Guidance for referral of cases for criminal proceedings will
be addressed in a subsequent memorandum.
Compliance/Enforcement 2-17 Guidance Manual 1985
-------
Chapter Two Exhibit 2-1
-2-
Case Development Process
We expect that DOJ and Headquarters' involvement In the case
development process will continue to be intensive in hazardous
waste and Superfund cases in the future. This is because these
are new areas of the law, without much precedent. In the more
mature areas (air and water cases) we expect the case development
process to be more informal. For example, in many cases the
coordination between Headquarters, DOJ attorneys and Regional
attorneys may be accomplished by infrequent meetings and telephone
contacts.
The need for Headquarters Enforcement Counsel or DOJ
involvement in a case at an early stage depends upon sound
judgment. If the case, even though in a mature program, presents
national issues, contains novel problems, requires extra support,
or has other areas in which you or your attorneys would like
support from or the views of Headquarters, the Department of
Justice or both, we will provide it. However, we do not want
to make the case development process a burden on the Regions in
air and water cases which do not require it.
It is essential that Regional attorneys apprise Headquarters
and DOJ counsel of new cases which are under development as soon
as sufficient information is acquired about the cases to enable a
determination to be made that they have potential for referral.
This is necessary in order that the Regions, Headquarters and DOJ
can plan resource needs, litigation support and budgetary requests.
We anticipate that increased use of our computer system by the
Regional Offices will aid in the advance notification of emerging
cases.
Referral Package
As the case development process, including e->ly DOJ
involvement, becomes widespread, we will be able .o significantly
reduce the supporting paperwork you send to EPA Headquarters to
accompany a referred ease. In order to achieve this result, it
is highly desirable for the Regional attorney to acquaint the
appropriate Headquarters and DOJ attorneys with developing cases
by telephone and at regional meetings at an early stage. In any
event, as described in the following paragraph, certain basic
information in the form of a referral memorandum should accompany
the litigation report at the tine the case is formally referred
to Headquarters, in addition to the more comprehensive litiganon
report.
CUA Compliance/Enforcement 2-L8 Guidance Manual 198S
-------
Chapter Two Ksfaibit 2-1
When a ease is forwarded to Headquarters for referral to
DOJ, the referral memorandum, at a minimum, should include
identification of the potential defendants, a factual summary,
identification of issues, status of past Agency enforcement efforts,
and the names of Agency and DOJ attorneys who are involved in
the case, including the lead attorney. This should be accompanied
by the litigation report, together with a copy of the relevant
papers in the case file and such other accompanying explanatory
memoranda or analyses as have been agreed to between the Regional
attorney, the Headquarters attorney and the DOJ attorney working
on the case.
One particular need in a case referral i» to identify th«
problems that may exist with the case. In the past many documents
forwarding cases to EPA Headquarters have been pure advocacy
documents. 1y this I mean they stressed only the positive side
of a case, However, once the case was referred to DOJ and work
began, problems that might complicate the prosecution of the case
would then be revealed. In order to properly focus your resources
and ours, it is necessary that initial forwarding paperwork
include a description of all problems that may accompany the
prosecution of the case. Further, if problems are identified
after the case has been forwarded to Headquarters, the referral
paperwork shoulc be supplemented to include-these problems.
Early involvement by Headquarters, and DOJ where appropriate,
should provide for early identification and resolution of such
problems, tour credibility with Headquarters and CPA's credibility
with DOJ are not aided by selling a case that must be 'unsold*
when reality sets in.
Lead Attorney
The lead attorney responsibility establishes an accountable
party for the progress of the case. It has become apparent that
many times the failure of a case to nove forward is a direct
result of the lack of an identifiable lead attorney who bears
the responsibility for the progress of th»t _ase. Responsibility
cannot be vaguely shared between two or t"ire« attorneys. Someone
has to have the lead designation if for no other reason than to
act as a focal point, prescribe milestones, and make appropriate
reports.
At such time as you begin the case development process there
should be a clear understanding between the Agency attorneys
about who will take the lead in the case development phase.
Ordinarily the lead attorney in the development phase will be a
Regional attorney. However, in cases of national significance
CWA Compliance/Enforcement 2-19 Guidance Manual 1985
-------
Chapter Two Exhibit 2-1
-4-
or cases without precedent, the lead attorney, even in the develop-
ment phase, may be an attorney from Headquarters or DOJ. After
the ease has been referred to DOJ, there should again be a conference
between the appropriate Regional, Headquarters and DOJ attorneys
to determine if the lead in the ease should shift. If so, the
new lead attorney should be designated and his/her identity
clearly understood by all parties to the case, including technical
support personnel. When the case is filed, the lead responsibility
should again be agreed to by the attorneys and conveyed to all
other parties involved in prosecuting the case. At all tines, .
the computer system should be kept current on the identity of
the lead attorney.
Regardless of who has the lead, the responsibility for the
initial documentation of statutory violations and development of
supporting data that justifies referral of a case to DOJ for
litigation always rests with EPA attorneys. In addition, I expect
that EPA attorneys will be responsible for developing and
maintaining a thorough understanding of the facts of the case,
the issues involved or which may be raised. Agency policies which
affect or may be affected by the case, and to serve as spokesperson
on the case development and litigation team for EPA's views.
Whsn a case is referred to the Department of Justice, the
Departntnt will, in consultation with EPA, and in accordance with
the Memorandum of Understanding between the agencies, designate a
lead case attorney. The OOJ lead attorney will be responsible
for and have authority to require development of case strategy
and tactics? evaluate the quality and quantity of evidence necessary
to prove the government's case; assign and coordinate responsibilities
to litigation team members, including technical personnel; and
insure that ail necessary government personnel are fully informed
of case progress. The lead attorney will also communicate as
the government's spokesperson with defendants; and undertake the
necessary case preparation to move the matter expeditiously to
trial.
Generally, the lead attorney after referral of a case will
be from the Department of Justice c. United States Attorneys
Office. This is consistent with .he Attorney General's statutory
responsibility for litigation involving the United States and
its Agencies and the Memorandum of Understanding. On a case by
case bisis EPA attorneys may be assigned lead responsibility.
When this occurs, the EPA attorney assigned lead responsibility
will be supervised by the Chief of the Environmental Enforcenent
Section of the DOJ with respect to litigation matters.
CWA Compliance/Enforcement 2-20 Guidance Manual 1985
-------
Chapter Two Exhibit 2-1
-5-
It is essential that all litigation team members understand
theie respective responsibilities and cooperate in the litigation
effort. Expsrience demonstrates that cases which are actively
moved to trial provide a full opportunity for each attorney to
gain meaningful experience in litigation. Without this support
our litigation effort cannot succeed.
The computer system should at all times reflect the identity
of the lead case attorney. In each case, EPA will designate an
EPA attorney who will continue to be responsible for coordinating
agency input.
Further Clarification
I realize that this guidance does not prescribe exact
procedures for every conceivable situation. However, I am looking
to you as Regional Counsels to exercise your best professional
judgment in supervising your Regional attorneys. Please let me
know in those instances where attorneys from Headquarters and the
Regional attorneys are unable to reach agreement on the handling
of cases. Further, the Headquarters Associate Enforcement Counsel
and I stand ready to help you in any dealings with DOJ, \t
necessary.
Goal
I want to emphasize that the goal of EPA is for expeditious,
efficient, and successful prosecution of our enforcement cases.
It rtoes not natter who gets the credit or the lead; what does
matter ia whether the eases are worth the time of all the parties
Involved, are filed and prosecuted in a timely manner, arid achieve
protection for the public and the environment.
ect Robert M, perry
Steve Ramsey
Associate Enforcement Counsels
CWA Compliance/Enforcement 2-21 Guidance Manual 1985
-------
Chapter Two , . Exhibit 2-2
Implemeatation of Direct Referrals
for Civil Cases Beginning December lt 1983
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
«, oc ««***
28
•OTBMKMCHT COUXZk.
MEMORAMLUM
SUBJECT: Implementation of Direct Referrals for Civil Cases
Beginning Beeasber 1. 19S3
FROM: Courtney H.
Assistant Adi In 1st rat or foe Enforcement
and Compliance Monitoring
70: Regional Admin is era tors. Beg ions I - I
Regional Conns el a, Regions I - I
Associate Enforcement Counsels
OECM Office Directors
I. BACKGROOHP
On September 29, 1983, the Environmental Protection
Agency (EPA) and the Land and Natural Resources Division of
the Department of Justice (DOJ) entered into an agreement
which, beginning on December 1, 1983, allows certain
categories of cases to be referred directly to DOJ from EPA
Regional offices without ay prior concurrence. A copy of
that agreement is attached to this memorandum.
This memorandum provides guidance to EPA Headquarters
and Regional personnel regarding procedures to follow in
Implementing this direct referral agreement. Additional
guidance will be issued as required.
II. PROCEDURES FOR CASES SOBJSCT TO DIRECT REFERRAL
The atta-jied agreement lists those categories of
cases which cat be referred directly by the Regional
Administrator to DQJ. All other cases oust continue to be
reviewed by Headquarters OSCM and will be referred by ae to
DOJ. Cases which contain counts which could be directly
referred and counts which require Headquarters concurrence
should be referred to EPA Headquarters. If you are uncertain
whether a particular case nay be directly referred, you
should contact the appropriate Associate Enforcement Counsel
for guidance.
CWA Compliance/Enforcement 2-22 Guidance Manual 1985
-------
er Two Exhibit 2-2
-2-
Many of the procedures for direct referral cases are
adequately explained in the September 29th agreement.
However, there are some points' I want to emphasise.
Referral packages should be addressed to Mr. F. Henry
Habicht, II. Assistant Attorney General. Land and Natural
Resources Division. U.S. Department of Justice. Washington.
D.C. 20530. Attention: Stephen D. Ramsey. The time limitations
set forth in the agreement for review and initial disposition
of the package will commence upon receipt of the package in
the Land and Natural Resources Division. «nd not at the DOJ
mailroom. Delivery of referral packages to the Land and
Natural Resources Division will be expedited by use of
express nail, which is not commingled with regular mail in
DOJ's nailroom.
The contents of a referral package (either direct to
DOJ or to EPA Headquarters) should contain three primary
divisions: (1) a cover letter; (2) the litigation report;
(3) the documentary file supporting the litigation report.
The cover letter should contain a summary of the following
elements:
(a) identification of the proposed defendant(s);
(b) the statutes and regulations which are the basis
for the proposed action against the defendant(s);
(c) a brief statement of the facts upon which the
proposed action is based;
(d) proposed relief to be sought against the defendant(s);
(e) significant or precedential legal or factual issues;
(f) contacts with the defendant(s), including any
previous administrative enforcement actions taken;
(g) lead Regional legal and technical personnel;
(h) any other aspect of the case which is significant and
should be highlighted, including any extraordinary
resource demands which the case may require.
A referral to DOJ or to Headquarters ZPA is tantamount
to a certification by the Region that it believes the case
is sufficiently developed for the filing of a complaint,
and that the Region is ready, willing and able to provide
such legal and technical support as might be reasonably
required to pursue the case through litigation.
CWA Compliance/Enforcement 2-23 Guidance Manual 1985
-------
Chapter Two Exhibit 2-2
-3-
As provided In the September 29, 1983, agreement,
information copies of the referral package aay be provided
to the U.S. Attorney for the appropriate judicial district
in which the proposed case may be filed. These information
packages should be clearly labelled or stamped with the
following -wordss "Advance Copy — No Action Required At
This Time". Also, information copies should be simultaneously
provided to the appropriate OECM division at Headquarters.
It is Important that the directly referred cases be tracked
in our case docket system and Headquarters oversight initiated.
Copies of Che referral cover letter vill be provided to
OECM* s Office of Management Operations for inclusion in the
automated case docket system when Headquarters informational
copy is received at OECM's Correspondence Control Unit.
Department of Justice Responsibilities
DQJ shares our desire to handle these cases as expedi-
tiously as possible. To that end, DQJ has agreed that,
within thirty days of receipt of the package in the Land and
Natural Resources Division at DQJ Headquarters, it will
determine whether Headquarters DOJ or the U.S. Attorney
vill hare the lead litigation responsibilities on a specific
case. DOJ will notify the Regional offices directly of its
determination in this regard, with a copy to the appropriate
OECM division. Although USA offices will have lead respon-
sibilities in aany cases, the Land and Natural Resources
Division will continue to have oversight and management
responsibility for all eases. All complaints and consent
decrees will continue to require the approval of the
Assistant Attorney General for the division before the ease
can be filed or settled.
DOJ has reaffirmed the time frame of the Memorandum
of Understanding, dated June 15, 1977. for the filing of
eases within 60 days after receipt of the referral package,
where possible. Where it is not possible, DOJ will advise
the Region and Headquarters of any reasons for delays in
filing of the case. However, when DOJ determines that
the USA should have the lead responsibilities in a case, DOJ
will forward the case to the USA within thirty days of
referral to the extent feasible.
DOJ can request additional information from a Region
on a case or return a case to a Region for further develop-
ment. In order to avoid these delays, referral packages
should be as cooplete as possible and the Regions should
work closely with DQJ to develop referral packages.
CWA Compliance/Enforcement 2-24 Guidance Manual 1985
-------
Chapter Two Exhibit 2-2
-4-
The Deputy Administrator has expressed concern In the
past on ch« number of cases returned to the Regions or
declined by EPA or DOJ. I have assured the Deputy Administrate!
that I will closely track the number of cases declined by
DOJ or returned to the Regions and the reasons for the
declination or return as indications of whether direct
referral* are a feasible method of handling EFA's judicial
enforcement prograa.
Headquarters OECM Responsibilities
Although OECM will not formally concur on cases directly
referred to DOJ, OECM will still review these packages and
nay offer comments to the Regions and DOJ. DOJ is free to
reqrest EPA Headquarters assistance on cases, as DOJ
believes necessary. EPA Headquarters review will help to
point out potential issues and pinpoint areas wh«r« future
guidance should be developed. OECM will also be available
as a consultant to both DOJ and the Regions on these cases.
OECM will be available to address policy issues as they
arise and, as resources permit, may be able to assist In
case development or negotiation of these cases. Any request
from a Regional office for Headquarters legal assistance
should be in writing from the Regional Administrator to
toe, setting forth the reasons for the request and the type
of assistance needed.
OECM also maintains an oversight responsibility for
these cases. Therefore, Regional attorneys must report
the status of these cases on a regular basis througnuse
of tha automated case docket.All information for the case
required by the case docket system must appear in the
docket and be updated in accordance with current guidance
concerning the automated docket system.
Settlements In Cases Subject to Direct Referral
I will continue to approve and execute all settlements
In enforcement cases, including those in cases subject to
direct referral and amendments to consent decrees in these
cases. This is necessary to ensure that Agency policies and
enforcement activities are being uniformly and consistently
applied nationwide. After the defendants have signed the
settlement, the Regional Administrator should forward a
copy of the settlement to me (or my designee) with a written
analysis of the settlement and a request that the settlement
be signed and referred for approval by the Assistant Attorney
General for the Land and Natural Resources Division and for
entry. The settlement will be reviewed by the appropriate
OECM Enforcement Division for consistency with law and
Agency policy.
CVA Compliance/Enforcement 2-25 Guidance Manual 1985
-------
Chapter Two Exhibit 2-2
-5-
Within twenty-one days from the date of receipt of the
settlement by the appropriate 0£CM division. I will either
sign the settlenent and t ran sate it to DOJ with a request
that the settlenent be entered, or transmit a memorandum to
the Regional Office explaining factors which justify post-
ponement of referral of the package to DOJ, or return the
package to the Region for changes necessary before the
agreeaent can be signed.
Obviously, ve vant to avoid the necessity of
communicating changes in Agency settlement positions to
defendants, especially after they have signed a negotiated
agreeaent. To avoid this, the Regional office should
coordinate with Headquarters OECM and DOJ in development of
settlement proposals. A copy of all draft aettleoent
agreements should be transmitted by the Regional Counsel to
the appropriate Associate Enfore as en t Counsel for review
before it is presented to the defendant. The Associate
Enforcement Counsel will coordinate review of the settlement
with the Headquarters program office and respond to the
Regional office, generally, within ten days of receipt of
the draft. The Regional office should remain in contact
with the Headquarters liaison staff attorney as negotiations
progress. Failure to coordinate settlement development
with appropriate Headquarters offices may result in rejection
of a proposed settlement which has been approved by the
defendant(s) and the Regional office.
I will also continue to concur in and forward to DOJ
all requests for withdrawal of cases after referral. In
addition. I will review and concur in any delay in the filing
or prosecution of a case after referral. This is appropriate
because cases which are referred to DOJ should he expeditiously
litigated to conclusion, unless a settlement or some other
extraordinary event Justifies suspending court proceedings.
The review of reasons for withdrawal or delay of cases
after expenditure of Agency and DOJ resources is an important
function of OECM oversight. Therefore, should the Regional
offices desire to request withdrawal or delay of a case
which has been referred to DOJ, a memorandum setting forth
the reasons for such a request should be forwarded to the
appropriate OECM division, where it will be reviewed «nd
appropriate action recommended to me.
III. CASES HOT SUBJECT TO DIRECT REFERRAL
Those eases not subject to direct referral will be
forwarded by the Regional Administrator to the Office
of Enforcement and Compliance Monitoring for review prior
to referral to DOJ. OECM has committed to a twenty-one day
Cum-around time for these cases. The twenty-one day
review period starts when the referral is received by the
appropriate OECM division.
CWA Compliance/Enforcement 2-26 Guidance Manual 1985
-------
Chapter Two EaMbit 2-2
-6-
Wtthin this twenty-one day period, DECM will decide
whether to refer the case to DOJ (OECM then has fourteen
additional days to foTaally refer the ease) , to return the
case to the Region foe further development, or to request
additional information from the Region.
Because of this abort OECM review period, emphasis
should be placed on developing complete referral packages
so that delay occassioned by requests for additional infor-
mation from the Region vill be rare. OECM may refer a case
to DOJ which lacks some information only if the referral
can be supplemented vith a minimum of tine and effort by
information available to the Regional office which can
immediately be gathered and transmitted to DOJ. However,
this practice is discouraged. In the few instances in
which a case is referred to DOJ without all information
attached, the information should, at a minimum, be centrally
organized in the Regional office and the litigation report
should analyze the completeness and substantive content of
the information.
A referral will be returned to the Region, with an
explanatory memorandum, if substantial information or
further development is needed to complete the package.
Therefore, the legions should work closely with OECM
attorneys to be certain referral packages contain all
necessary information.
IV. MEASURING THE EFFICACY OF THE DIRECT REFERRAL AGREEMENT
I will use EPA's case docket systai. OECM's quarterly
Manages ent Accountability reports and DOJ'a responses to
the referral packages to review the success of the direct
referral agreement. OECM will review the quality of the
litigation reports accompanying directly referred cases and
discuss the general quality of referrals from each Regional
office at case status meetings held periodically with DOJ's
Environmental Enforcement Section.
If you have any questions concerning the procedures
set out in this memorandum, please contact Richard Hays,
Senior Enforcement Counsel, at FTS 382-4137.
Attachment
CWA Compliance/Enforcement 2-27 Guidance Manual 1985
-------
Chapter Two Exhibit 2-2
.
* UNITE!1 STATES EKV1RO!«.SI»T*1 PROTECTION ASEt;CY
" TTD:.. S£
tffia o» T»«
Honorable T. Henry Bablcfat, XX '•*
Acting Assistant Attorney General •'
land and Katural Resources Divisiot i
U.S. Department of Justice
Washington, D.C. .20530
Dear Banks
•*. .
As a result of our meeting on Thursday, September .« «
and the subsequent discussions of respective staffs, we are *«
agreement that, subject to the conditions set forth below, the
classes of cases listed herein will be referred'directly frosi - --••
EPA's Regional Offices to the Land and Katural Resources Division- -~-
of the Department of Justice in Washington. D.C. -_.-.--_ ,-t^_-
The terms, conditions and procedures to be followed in .~'-:
implementing this agreement aret .. - .-JcV' ", "-^
1. The Assistant Administrator for •enforcement anfl Complianee ~':^_
Monitoring will waive for a period of one year the requirement
of the Assistant Administrator's prior concurrence for referral
to the Department of Justice for the following classes of -----
Judicial enforcement cases:
cases involving failnre to monitor or report
industrial
CWA Compliance/Enforcement 2-28 Guidance Manual 1985
-------
Chapter Two , Kacfaibit 2-2
eases involving non-ferrous smeltersi V_ . .-~^-'f-ri
... • _.**" "" 7'.***
(ill) cases involving national Emissions Standards for ,>"-
Hazardous Air Pollutants! .-- ..""-"'"
Civ) cases involving the post-1982 enforcement policy"""*
Cases described in Section 1* above, shall be referred -'-••;-;•
directly from the Regional Administrator to the Land and " •"t"t.
Katural Resources Division af DOJ in the following wanner* '"'. .-~
fa} The referral package s&all be forwarded to the Assistant-' 4
Attorney General for Land and Natural Resources* U.S.;•* TlJ
Department of Justice U»J), with copies of the package :-n"
being simultaneously forwarded to the U.S. Attorney.- -'-•:',
CBSAI for the appropriate judicial district in which •—-
the proposed case is 4o be filed (marked "advance copy-""^^:i
no action required at this tine*), and the Assistant -:^~-.
Administrator for Enforcement arad Complianc* Monitoring •^H
(OECM) at EPA Beadguarters. DECK shall have the ^-following"
functions with regard to said referral package*j--; - '-;~,'^.'^_
•> ., ~" °-i':s^'~*-jr
(i) OECN shall have no responsibility for review of-.^."^
such referral packages, and the referral shall be'f^j7
effective as of the date of receipt of the packagei^i
by DOJ} however, OECM shall comment to the RegionJ^
upon any apparent shortcomings or defects which -~fT.2
It susy observe in the package." DOJ may, of eourse*'.t
continue to consult with OECH on such referrals. ^~/~
Otherwise, DECK shall be responsible only for "ffX^
routine oversight of the progress and management .-^^
of the case consistent with applicable present / ^'^,
and fotore guidanc*, OECR shall, Ji^wever* retain;^;
final authority to approve settlements on behaJJ? ?r^%
of EPA for these cases, as la other cases*
Clll The referral package vhall be in th'e fomat *ad
contain information provided by guidance mraoranflj.
as «ay be promulgated from time to time by OECH ia'lv.'
consultation with DOJ and Regional representatives.^
CWA Compliance/Enforcemeat 2-29 Guidance Manual 1985
-------
Chapter Two
Exhibit 2-2
shall , within 30 flays from receipt of the
xx*l jsackage, det«miaa |JJ whether the L
Division of U03 will have lead responsibility for
the case? or (2) whether the DSA will have lead
responsibility for the case.
I. (a)
fiill
it, Is agrmtS that to the extent f aasible, -r'~-l~^-
eases in which the USA will fcave the lew! -will-to'--
transmitted to the OSA for filing and handling • *~
within this 30-day period, if QOJ determines that
the case requires additional legal or factual -----
development at uoj prior to referring the •attar"-'"-"
to the OSA, the case may be returned to the : '* : "
Regional Office, or may be retained at the Lands" " -
Division of BOJ for further development, including ,
requesting additional information from the Regional.
Office* In any event, OOJ will notify the itegional -
Office, OECH and the DSA of its detersiaatioa of, "
the lead rol« within the abave-awntioned 30-day '* *
period. J "- --
Regardless of whether »OJ or the TJSA is aeterainea ." .
to have lead responsibility for management of " ~'*~-
the case, the procedures ant! time limitations set*'?-'"
forth iti the HOU and 2B CTR SO. 65 et aeq., shall -"'
remain in effect and shall xun concurrently withv'VJI
the aaoageaeat determinations aada r«.^-».^t to -*,v,'ri:
this a§r»ememt« - - - - -*•.-• ~"~
*41 ether eases not apecif ically described in paragraph -_-£S}
1, above, which the Regional Offices propose for judicial '*'
enforcement shall first be forwarded to OECH and the - vjcf4.&
appropriate Headquarters program office for review. .^'--=~^
* copy of the referral package shall be forwarded •inul-t$3£
taneously by the Regional Office to the lands Division of v ^
WM and to the OS* for the appropriate Judicial district,^ ^
the BSA'» copy being marked "advance copy-no action required
•ft* bnJ.
CbJ
OECH shall review the referral package within twenty-ornery- '-
121 ) calendar days of tha- date of receipt of said parkage-^-
froa the Regional ASmiaistrator a, id •hall, withia said .^J^S
time period, make a determination of whether the case ,"r !?-"'
should be (al formally referred to DOJ, Cb) returned to-r^-*
the Regional Administrator for any additional development -'*
which may be required? or t*'"*»i «» information which -may be retjuired to satisfy --^?
the necessary and essential legal and factual requirements -
for that type of case.
CWA Compliance/Eaforcement
2-30
Guidaace Manual L98S
-------
Chanter Two Exhibit 2-2
-4-
(c) Any request for information, or return of the case
to the Region shall be transmitted by appropriate letter
or memorandum signed by the AA for OECM (or her designee)
within the aforementioned twenty-one day period. Should "
OECM concur in the proposed referral of the case to OO3. .-•
the actual r&farral shall .be by letter iron the AA far r " "•
OECM lor her designee) signed vithin fourteen days oZ '"
the termination of the aforementioned twenty-one day - ,T'-~i '
review period. Copies of the letters referred to herein"~-
shall be sent to the Assistant Attorney General for the .^
Lands Division of XCO. , - . . -: .. _ , . -^~
(d) Open receipt of the referral package by DOJ, the ' *'-T
procedures and time deadlines set forth in paragraph.
.Mo. £ of the MOD shall apply. .. .
•• m - -. r_
Xn order to allow sufficient time prior to implementation'of "':'-
this agreenent to make the U.S. Attorneys, the Regional Offices - •'-"•
and our staffs aware of these provisions, it is agreed that this" *:
agreement shall become effective December 1, 1983. Courtney Price"
will distribute • memorandum within EPA explaining this agreement "
and how it will be Implemented within the Agency. (You will receive:
• copy.} A - ---•_— -''--
I believe that this agreement will •li-minate the necessity of .
formally amending the Memorandum of Understanding between our _ .;;>"-
respective agencies, and will provide necessary experience to '' ^'-i^-
ascertain whether these procedures will result in significant •
savings of time and resources. Xn tSat regard, I have asked - " -"•- '
Courtney to establish criteria for measuring the efficacy of this KJ-
•greement during the one year trial period., and I ask t^tt you -- ••^«?
cooperate with her in providing such reasonable and necessary ££'•?''
information as she may request of you in making that determination!1-
At the end of the trial period—or at any time in th« interval— "^
we may propose such adjustments in the procedures set forth herein."
as «ay be appropriate based on experience of all parties.j;.. V^;--^
It is further understood that it is the mutual desLni of the v—
Agency and DOJ that cases be referred to the USA for -filing as ' -£?
expeditiously as possible.' _. ^~i~-~+
X appreciate your cooperation in arriving at this agreement." "
Xf this meets with your approval, please sign the enclosed cc~ =s?
in the space indicated below and return the copy to «e for -''
Sincerely jours.
Alvin 1. Aim
Deputy Adainistra
F. Meaxy M^iacht« II
Acting Assistant Attorney General
Land and Hatnral Resrynrces -••——•-
U.S. Department of Justice
CWA Compliance/Enforcement 2-31 Guidance Manual 1985
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Chapter Two Exhibits
CMA Compliance/Enforcement 2-32 Guidance Manual 1985
-------
Chapter Three
Compliance Monitoring Procedures
Chapter Contents Page
1 Introduction 3-1
2 Self-Monitoring and Other Information Gathering 3-3
3 Inspections 3-7
Neutral Inspection Scheme 3-8
Types of Inspections 3-8
Notification of a Pending Inspection 3-9
Chronology of Inspection Procedures 3-10
Professional Conduct During the Inspection 3-12
Entry 3-12
Contractor Inspections 3-13
Opening Conference 3-14
Conducting the Inspection 3-14
Confidential Business Information 3-16
Exit Interview 3-17
Documentation and Inspection Report 3-17
4 Reviewing Facility Recordkeeping and Reporting 3-19
NPDES Requirements Review 3-19
POTW and Industrial Contributor Pretreatraent
Requirements Review 3-20
5 Warrants 3-21
Policy 3-21
Securing and Serving an Administrative Warrant 3-22
CWACompliance/Enforcement 3-1 Guidance Manual 1985
-------
Chapter Three Contents
6 Exhibits 3-25
3-1: Discharge Monitoring Report 3-27
3-2: Model Pre-Inspection Notification Letter 3-29
3-3: NPDES Compliance Inspection Report 3-30
3-4: Deficiency Notice 3-32
3-5: Records, Reports, and Schedules Checklist 3-33
3-6: Model Application for Administrative Warrant 3-36
3-7: Model Affidavit in Support of Application
for an Administrative Warrant 3-37
3-8: Model Administrative Warrant 3-39-
CWA Compliance/Enforcement 3-ii Guidance Manual 1985
-------
Chapter Three
1 Introduction
The Clean Water Act (CWA) authorizes EPA or an approved NPDES state to
issue permits and to set effluent limitations, conditions, and pretreatment
standards to be met by permittees and indirect dischargers. Section 308
authorizes monitoring and inspections to determine whether NPDES permit
limitations and conditions are met. Specifically, Section 308 of the Act:
• Requires permittees and indirect dischargers to maintain records,
make reports, install and maintain monitoring equipment, and sample
effluents,
• Authorizes EPA to enter and inspect facilities to examine and copy
records and monitoring equipment and to sample effluents.
* Authorizes public access to records unless they are shown to
require confidential treatment in order to protect trade secrets.
States with approved NPDES programs carry out NPDES compliance monitoring
activities. EPA may grant such approval if a state has authority equiv-
alent to Section 308 of the CWA. After a state is approved, however, EPA
continues to play an important oversight role in enforcement, compliance
monitoring, and permit development.
With 37 states approved to run NPDES programs, most compliance monitoring
activity takes place at the state level. The CWA and NPDES regulations (40
C.F.R. §123.26) require that an approved state conduct NPDES compliance
monitoring. Several non-NPDES states conduct their own compliance moni-
toring activities and conduct joint inspections with EPA personnel.
This chapter provides a brief introduction to compliance monitoring and
inspection Issues, including review of a facility's recordkeeping and
reporting. For a more detailed discussion on the technical aspects of
compliance monitoring and inspections, refer to the NPDES Compliance
Inspection Manual (June 1984), which consolidates and supersedes earlier
NPDES inspection manuals.
CWA Compliance/Enforcement 3-1 Guidance Manual 1985
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Chapter Three Introduction
CHA Compliance/Enforcement 3-2 Guidance Manual 1985
-------
Chapter Three
2 Self-Monitoring and Other Information
Gathering
In passing the Clean Water Act, Congress placed initial responsibility for
determining compliance on the regulated community. Section 308 authorizes
EPA to require sources (both direct and indirect) to maintain records, to
sake reports, to install and maintain monitoring equipment, and to sample
effluents. The NPDES program regulations (40 C.F.R. §§122.41, 122.42, and
122.48) require permittees to monitor effluent limitations, and require
routine sampling and analysis of effluents and the reporting of numerical
effluent limitations at the frequency stated in the permit, but in any
event not less than once a year. These results are reported on standard
Discharge Monitoring Reports (DMRs). (See Exhibit 3-1.) State-approved
NPDES programs are required to use the standard DMR form.
The NPDES- regulations contain a number of other reporting requirements
relating to actual or potential permit or other violations. Permittees
must orally report noncompliance that may endanger health or the environ-
ment within 24 hours after becoming aware of the violation and must submit
a written report within 5 days after becoming aware of the violation [40
C.F.R. §122.41(l)(6)(i)]. In addition, permittees must report violations
of maximum daily discharge limitations for any pollutant listed for such
reporting within 24 hours [40 C.F.R. §122.41(l)(6)(li)].
The NPDES permit regulations also require reporting of compliance or
noncompliance with final permit compliance dates and with interim
compliance schedule requirements [40 C.F.R. §122.41(1)(5)].
The General Pretreatment Regulations set reporting requirements for
indirect dischargers that may establish strong evidence of violations of
pretreatment categorical standards. First, 40 C.F.R. §403.12(d) requires
an Industrial user subject to a categorical pretreatment standard to submit
to the Control Authority (either EPA or an approved state or local program
authority) a report Indicating the nature and concentration of all pollut-
ants in the discharge that are limited by applicable pretreatment stan-
dards. The user oust submit this report within 90 days following the date
for final compliance with categorical pretreatment standards or, for a new
source, following commencement of the introduction of wastewater into the
PQTW. The report must state whether the user Is meeting these standards
and, if not, what additional measures are needed to bring the user into
compliance.
CWA Compliance/Enforcement 3-3 Guidance Manual 1985
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Chapter Three Self-Monitoring and Other Information Gathering
Second, 40 C.F.R, §403.12(e) requires industrial users subject to categori-
cal pretreatment standards to submit to the Control Authority (during the
months of June and December following the compliance date of such standard)
a report on the nature and concentration of pollutants in the effluent that
are limited by categorical pretreatment standards. Both reports must
contain the results of sampling and analysis of the discharge. Control
Authorities establish monitoring frequencies.
Certain types of NPDES permits also require special reporting. Many of
these requirements are discussed in greater detail in Chapter Eleven. For
example, permittees must notify the regulatory authority of planned changes
in or expansion of production facilities [40 C.F.R. §122.41(l)(l)] and
non-POTWs must provide notification when the effluent contains toxics in
amounts over the notification level [40 C.F.R. §122.42(a)], POTWs must
provide information on new indirect discharges and on substantial changes
in the type or volume of materials received from existing contributors [40
C.F.R. §122.42(b)].
Section 308(a) further authorizes EPA to require a source to provide speci-
fic information to assist EPA in determining compliance. Where a DMR re-
flects permit violations, EPA may request copies of permittee-retained
monitoring documents to confirm the number of days of violation of maximum
effluent limitations, particularly where an on-site inspection cannot be
easily scheduled. [See* 40 C.F.R, §122.41(h).] EPA may also use a Section
308 letter to request information from a suspected discharger who does not
currently have a permit. Finally, a Section 308 information request can
require sampling, analysis, and reporting of data formerly required under
the terms of an expired but not extended NPDES permit. This occurs where
the state runs the NPDES program although state law does not have a
statutory provision for extending state-issued permits beyond their
expiration date even where a timely application is filed.
Section 308 is also used as an informal information-gathering tool to
assist in implementing EPA regulatory programs or in issuing permits. For
example, Section 308 authorizes EPA to request information on an Industrial
discharger's facility for the purpose of collecting data for use in devel-
oping national effluent guidelines. Section 308 can also be used to
require Information that would be necessary for the preparation of an NPDES
permit.
Section 308 requests may be particularly helpful In providing EPA with
sufficient information to modify an existing NPDES permit, where enforce-
ment of existing permit conditions is not at issue. For example, the
Regional Office may suspect that an NPDES-perraitted facility is causing
toxicity problems in a receiving stream. However, the existing permit does
not place effluent limitations on toxic pollutants. Although EPA may not
be able to enforce against a discharger for pollutants that are not Limited
in the permit (see "Permit as a Shield" section in Chapter Eleven), it can
request the discharging facility to perform toxicity analyses that would
enable EPA to set toxics limits in a modified or reissued permit. Failure
to comply with the request may result In an enforcement action under
Section 309.
CWA Compliance/Enforcement 3-4 Guidance Manual 1985
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Chapter Three Self-Monitoring and Other Information Gathering
Chapter Six addresses Section 308 letters la the context of administrative
enforcement actions.
CWA Compliance/Enforcement 3-5 Guidance Manual 1985
-------
Chapter Three Self-Monitoring and Other Information Gathering
CWA Compliance/Enforcement3-6Guidance Manual 1985
-------
Chapter Three
3 Inspections
SPA may conduct an administrative inspection wherever there is an existing
discharge penult, or where a discharge exists or Is likely to exist, even
though no permit has been issued. Inspections can be used either to
inspect a regulated facility even though there is no reason to believe
there is a CWA violation or where a CWA violation is suspected.
Inspections extend to facilities where records are maintained and located
elsewhere*
State and federal inspectors have two major areas of responsibility:
* Legal responsibilities include presenting proper EPA credentials
prior to inspections and properly handling any confidential
business information that may be obtained as a result of the
inspection. The inspector must also be familiar with the statutory
and regulatory sections that apply to the inspected facility.
* Procedural responsibilities include collecting and preserving
evidence in such a way as to avoid jeopardizing a potential legal
action. This also involves keeping detailed inspection records and
preparing an accurate inspection report.
Following the inspection, the inspector should do the following:
• Supplement facts contained in the inspection report with evidence,
including samples of effluent, photographs, statements from
witnesses, and personal observations;
• Determine what data should be collected to serve as possible
evidence;
* Clearly report the facts observed; and
• Relate the facts and data observed, either in court or in an
administrative hearing.
The inspector should also be aware of the requirements contained in the
statute, regulations, and the NPDES Compliance Inspection Manual (June
1984). This section is based largely on the NPDES Compliance Inspection
Manual.
CWA Compliance/Enforcement 3-7 Guidance Manual 1985
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Chapter Three Inspections
Neutral Inspection Scheme
In planning Inspections, EPA uses Che "Neutral Inspection Plan for the
NPDES Program" (policy issued February 17, 1981, and contained in the Water
Compliance/Enforcement Policy Compendium). Under this plan, EPA selects
facilities for routine inspections only on the bases of the time that has
passed since the last inspection and their geographic location. EPA does
not schedule routine inspections with any bias to any one category or
treatment type.
When EPA plans a routine inspection, it prepares an inspection plan. The
plan determines the type of inspection, purpose, tasks to be completed,
schedules, and milestones.
The requirements of a neutral inspection plan do not apply, however, when
the Agency has probable cause to inspect a facility for suspected viola-
tions* Probable cause is usually present when, for example, a violation is
reported to EPA by the facility's self-monitoring reports or by the public.
Types of Inspections
Program enforcement personnel conduct the following types of facility
inspections. Note that these inspections may also include a component for
pretreatment.
Compliance Evaluation Inspection (CEI) is a nonsampling inspection designed
to verify permittee self-monitoring requirements and compliance schedules.
This inspection is based on facility record reviews and on visual observa-
tions and evaluations of treatment facilities, effluents, and receiving
waters. The CEI inspection is scheduled routinely for all major facilities
on a rotating schedule.
Compliance Sampling Inspection (CSI) involves the collection of represen-
tative samples of the permittee's influent or effluent (or both) during an
inspection. EPA performs chemical analyses (1) to verify the accuracy of
the permittee's self-monitoring program and reports, (2) to determine the
quantity and quality of the effluents, and (3) when appropriate, to provide
evidence in enforcement proceedings. This inspection also includes the
nonsampling tasks of the CEI. EPA schedules CSI inspections on a rotating
basis for all major facilities.
ToxicsSampling Inspection (TSI) is a sampling inspection that focuses on
priority pollutants other than heavy metals, phenols, and cyanide, which
are typically included in a CSI. The TSI is only scheduled when there are
significant toxics problems in a particular discharge, either in an indus-
trial source or in a municipal treatment works that is treating toxic
discharges.
CWA Compliance/Enforcement 3-3 Guidance Manual 1985
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Chapter Three Inspections
Diagnostic Inspection (DI) of a publicly owned treatment works (POTW) is
used to identify compliance problems and direct them to the permittee for
correction, and to evaluate why the POTW is not able to meet its discharge
limits. EPA conducts the inspection as part of an enforcement data-
gathering effort. The inspector conducts a visual inspection of the
facility and discusses operational issues with facility management
personnel.
Performance Audit Inspection (PAI) is used to verify the permittee's
reported data and compliance through a check of laboratory records. The
Inspector reviews the permittee's self-monitoring program, from sample
collection to final report. (EPA does not separately sample and analyze
the effluents.) EPA may request the facility's laboratory to run perfor-
mance audit samples (standardized test samples) as part of the performance
audit to ensure that the analyses of the facility laboratory are adequate.
EPA performs this inspection only when it has reason to believe that a
facility laboratory is not producing correct analytical results.
Compliance Biomonitoring Inspection (CBI) evaluates the biological effect
of the permittee's effluent on test organisms using acute toxicity bioassay
techniques and includes the steps involved in a CEI. EPA may use data
collected from this inspection to determine whether more stringent water
quality-based limitations should be placed in an NPDES permit.
Reconnaissance Inspection (RI) is used to obtain a preliminary overview of
a permittee's compliance program. The inspector performs a. brief visual
inspection of the permittee's treatment facility, effluents, and receiving
waters. The RI utilizes the inspector's experience and judgment to quickly
summarize a permittee's compliance program. It is the briefest of all
NPDES inspections.
Legal Support Inspection(LSI) is a resource-intensive inspection conducted
as part of case referral preparation following a routine inspection.
Notification of a Pending Inspection
State Notification
EPA will notify the appropriate state regulatory agency in a timely manner
of inspections to be conducted within the state's jurisdiction, with the
possible exception of emergencies, consistent with the State/EPA
Enforcement Agreement.
Facility Notification
The regulatory authority may send a letter pursuant to Section 308 to
notify a facility that it Is scheduled for an inspection. The letter
advises that an inspection is imminent but generally does not specify the
exact date of the inspection. The letter may request information on such
CWA Compliance/Enforcement 3-9 Guidance Manual 1985
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Chapter Three Inspections
issues as on-site safety requirements and safety equipment needed by an
inspector. The letter generally also informs the permittee of the right to
assert a claim of confidentiality, in cases where a trade secret might be
disclosed. A model notification letter is contained in Exhibit 3-2.
EPA can conduct the inspection without prior notice or can present notifi-
cation during entry. EPA does not generally give notification when it
suspects illegal discharges or improper recordkeeping since conditions can
be altered or records destroyed before the inspection•
Chronology of laspection Procedures
The Inspector should follow the overall chronology of inspection
procedures described below:
Pre-Iospectioa Activities
* Establish the purpose, objectives, type, and scope of the
inspection considering the importance of the facility and the
available Agency resources;
* Review background information, including a description of the
facility, records on monitoring results, correspondence, and the
most recent permit;
* Provide timely notification to the appropriate state regulatory
agency;
* Develop a project plan for carrying out the inspection. The
project plan addresses the purpose, tasks, scope, procedures, and
needs for the inspection, Including personnel and equipment;
* Gather forms and equipment for the inspection; and
* Coordinate time for completing the inspection with the laboratory,
if samples are to be taken.
Entry to Facility Premises
Established entry procedures involve the following steps:
* Present official Agency employee credentials; and
* Obtain approval to inspect from person authorized to give consent
(or take appropriate action on a denial of entry, including
obtaining an administrative warrant).
CWA Compliance/Enforcement 3-10 Guidance Manual 1985
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Chapter Three Inspections
Opening Conference With Facility Officials
After entry, the inspector normally conducts an opening conference with the
facility's management. During the conference, the inspector will:
• Discuss the inspection plan, including objectives and scope, with
the facility management; and
* Establish a working relationship with the facility
officials*
Facility Inspection
During the inspection, the inspector will determine compliance with the
permit and the regulations and collect evidence of any violations. The
Inspector will:
• Review facility self-monitoring records;
• Inspect monitoring equipment, treatment processes, and associated
manufacturing processes, treatment operation logs, parts
Inventories, laboratory facilities, as well as sampling points and
procedures;
• Collect samples (and provide split samples for permittee if
requested) if inspection includes sampling; and
• Accurately record all data collected and observations made during
the course of the inspection.
Closing Conference With PlantOperator
At the closing conference, the inspector normally concludes the Inspection
by:
• Collecting additional information, if needed; and
• Clarifying any misconceptions with facility officials.
InspectionReport and Post-Inspection Activities
In order to document, organize, and complete his or her inspection
activities, the inspector will do the following:
• Complete the NPDES Compliance Inspection Report (EPA Form 3560-3;
see Exhibit 3-3);
» Follow sample chain-of-custody requirements (see discussion in
Chapter Four) and deliver samples to the laboratory;
CWA Compliance/Enforcement 3-11 Guidance Manual 1985
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Chapter Three Inspections
• Follow required sample preservation techniques and holding times
for sample storage; and
• Prepare narrative report.
Professional Conduct During the Inspection
EPA has adopted revised regulations on employee ethics in conducting
governmental business [40 C.F.R. §3.103, 49 Fed. Reg. 7528 (February 29,
1984)]. All inspectors should conduct themselves in accordance with these
regulations. The regulations provide that "[e]mployees may not use their
official positions for private gain or act in such a manner that creates
the reasonable appearance of doing so."
Inspectors may not accept favors, benefits, or meals from the facility
owner or operator because such action might be construed as influencing the
inspectors' performance of their governmental duties. Inspectors may ac-
cept refreshments or nominally priced meals when refreshments are offered
as part of a general meeting; however, these occasions should be kept to a
minimum.
Entry
Unless entry is authorized by an administrative warrant, the facility owner
or operator must give consent to the inspector before he or she can enter
the facility. The EPA inspector must give the facility's owner or operator
an opportunity to examine the inspector's credentials and to call the
Agency office to verify the credentials. The inspector must present
credentials to preclude personal liability for his or her actions. An
inspector may, however, be personally liable if he or she threatens the
owner/operator, uses force to enter the premises, or accepts gifts or
payment from a permittee.
Releases and Waivers
EPA employees must not sign any type of waiver or visitor release that
would relieve the facility of responsibility for injury to the EPA employee
or that would limit the rights of EPA to use the data gathered during the
inspection. If entry is made conditional on signing either type of
release, the inspector should contact the Regional Counsel's Office.
Denial of Entry and Administrative Warrants
Where entry is refused or the owner or operator asks the inspector to leave
during an inspection, the inspector must follow the procedures listed
Off A Compliance/Enforcement 3-12 Guidance Manual 1985
-------
Chapter Three Inspections
below, which have been developed in accordance with the U.S. Supreme
Court's decision in Marshall v. Barlow's, Inc.* [436 O.S. 307 (1978)].
• Ensure that all credentials and notices have been presented to the
facility owner or operator;
* Determine the reasons for the denial of entry. Officials of the
facility may wish first to seek advice from their attorneys on
EPA's inspection authority under Section 308;
• If entry is still denied, the inspector should withdraw from the,
facility and inform his or her supervisor who will confer with the
Office of Regional Counsel to consider obtaining a warrant; and
* Carefully note all observations made and data collected to support
the denial, including the name and title of persons approached,
reason(s) for denial, date and time of denial, condition of the
facility, attitude of the owner or operator toward compliance
inspections, effluent quality, previous noncorapltance with permit
limits, and any other probable cause to suspect a violation. These
factors are extremely important because they may form the basis for
requesting an inspection warrant.
If denied access to some parts of the facility, the inspector should note
the reasons for the denial and the parts of the inspection that could not
be completed. The inspector should contact the Regional Office to discuss
whether to obtain a warrant to complete the inspection.
A warrant is a judicial authorization for Agency personnel to enter specif-
ically described locations and to perform specific inspection functions.
An inspector may request a warrant prior to inspection if he or she sus-
pects that violations may be hidden during the time required to obtain a
search warrant. The documents required in securing a warrant are discussed
in the April 11, 1979 memorandum, "Conduct of Inspections After the
Barlow's Decision" (contained in General Enforcement Policy Compendium,
GM-5). Section 5 of this chapter ("Warrants") discusses procedures for
obtaining a warrant.
Contractor Inspections
EPA considers contractors as "authorized representatives" under Section 308
of the Clean Water Act, and they may, therefore, conduct inspections.
Industry, however, has challenged EPA's authority to consider contractors
In Marshall v. Barlow's Inc., the Supreme Court held that the Constitu-
tion prohibits an OSHA inspector from entering the nonpublic portions of
a work site to conduct searches without either proper consent or an
administrative search warrant.
CWA Compliance/Enforcement 3-L3 Guidance Manual 1985
-------
Chapter Three Inapectiona
as "authorized representatives." In Stauffer Chemical Co. v. EPA [647 F.
2d 1075, 1079 (10th Clr. 1981)], the court held that employees of an
independent contractor are not authorized representatives of the EPA
Administrator under Section 114(a)(2) of the Clean Mr Act. (Section 308
of the Clean Water Act contains comparable entry and inspection language.)
The Sixth Circuit arrived at the same conclusion in United States v.
Stauffer Chemical Co. [684 F. 2d 1174, 1189-90 (6th Clr. 1982), aff'd on
other grounds United States v. Stauffer Chemical Co., No. 82-1448 (U.S.
Sup. Ct.)]. However, In another Clean Air Act case, the Ninth Circuit has
held that contractors are "authorized representatives," BunkerHill Co.
Lead and Zinc [658 F. 2d 1280, 1284 (9th Cir. 1981)]. Accord Aluminum Co..
of America v. EPA, No. M-80-13 (M.D.N.C. Aug. 5, 1980).
Opening Conference
After entry, the inspector should outline inspection plans with facility
officials and conduct an opening conference. At the opening conference,
the inspector should cover the following items:
• Discuss objectives and scope of the inspection;
* Discuss inspection authority under the CWA and its regulations;
* Advise the facility manager (or equivalent) of his or her right to
request that trade secret information be held confidential;
* Plan meetings with personnel and schedule inspections of the
various plant areas;
• Outline the list of records to review and obtain copies;
* Discuss plant safety requirements and emergency procedures;
* Establish ground rules for taking photographs; and
• Advise company officials of their right to sample or conduct
observations or measurements simultaneously with the EPA inspector.
Conducting the Inspection
The inspector should consider requesting a facility official to accompany
him or her during the inspection who can describe facility processes and
minimize safety and liability concerns.
CWA Compliance/Enforcement 3-14 Guidance Manual 1985
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Chapter Three Inspections
The inspector's field notebooks, facility operator's formal statements,
photographs, drawings and maps of the facility, printed matter, mechanical
drawings, and copies of facility records and documents can all be used as
evidence of possible violations.
The field notebook should contain only objective facts and observations;
it is a part of the Agency files, not a personal record. The inspector
should number, date, initial, and include the facility name and location on
any document collected during the Inspection.
Photographs can provide an objective record of plant conditions. The
inspector should obtain the approval of the facility official before taking
any photographs. The inspector should avoid photographing sensitive
operations, such as equipment, that are claimed as trade secrets by the
operator. If refused permission, the inspector may contact the Regional
Counsel's Office for further instructions. Inspectors may, however, take
photographs from areas of public access and should log these photographs in
their field notebooks.
The inspector, plant employee, or a private citizen may also prepare a
formal statement. The statement must contain factual information, and it
must positively identify the person making the statement and his or her
qualifications. The person who makes the statement should sign it.
Chapter Four discusses types of evidence in more detail.
Sampling and Laboratory Analysis
The inspection may, depending on the type, include sampling or evaluation
of the facility's sampling program. In addition, the inspection will often
evaluate the quality control measures employed by the facility to ensure
data integrity, including the collection and analysis of samples by the
facility. The inspector should properly seal and preserve samples, follow
established chain-of-custody procedures, and verify the following:
* Compliance with effluent limitations;
• Self-monitoring data;
• Compliance of facility's sampling program with the permit and other
applicable regulations;
• Adequacy of data to support an enforcement action; and
• Permit reissuance or permit revision.
The results of these activities are often used as evidence in Agency
enforcement actions.
The procedures that facility laboratories must follow in analyzing water
pollutants are contained in 40 C.P.R. Part 136. Anyone may apply to the
Regional Administrator for approval of an alternative test procedure (40
C.F.R. §§136.4 and 236.5). Finally, the inspector must ensure that all
CWA Compliance/Enforcement 3-15 Guidance Manual 1985
-------
Chapter Three Inspections
data introduced into the inspection file are complete, accurate, and
representative of existing conditions at the facility.
Chapters Five and Six of the NPDES Compliance Inspection Manual contain a
detailed, technical discussion of sampling collection and flow measure-
ment. Chapter Seven of that manual addresses biomonitoring inspections.
Deficiency Notice
Where the inspector finds deficiencies in the permittee self-monitoring
program (i.e., sampling and analysis), he or she should complete a
deficiency notice that can be issued on-site following the inspection or
issued later by the Regional program office. Exhibit 3-4 contains a
deficiency notice form. The deficiency notice provides a quick response to
problems with a permittee's self-monitoring program.
The permittee can respond to a deficiency in one of two ways:
• Include the response as part of a regular DMR; or
• Submit a separate response within a specified period following
receipt of the deficiency notice (15 working days are generally
sufficient to correct self-monitoring problems).
For either response option, however, the inspector should specify in the
deficiency notice a deadline for the permittee's response to the notice.
Confidential Business Information
Records, reports, and any other information obtained during an inspection
relating to effluent data are required to be available to the public under
Section 308 of the CWA. If the facility can show that the information
contains trade secrets, the Administrator must keep such information
confidential. However, a business cannot refuse access merely by making a
confidentiality claim under Section 308 of the CWA to the inspector.
Regulations on handling confidentiality claims are contained in 40 C.F.R.
§§2.201 through 2.215. Under 18 U.S.C. §1905, disclosure of confidential
information by federal employees may be punishable by fines or
imprisonment. Confidential information cannot be disclosed to the public,
but may be disclosed to EPA representatives for purposes of enforcement.
Enforcement personnel must treat all material claimed to be confidential as
such until a Regional Office determines otherwise. Confidential informa-
tion Includes equipment or process flows that are regarded as trade
secrets. All confidential information must be marked as such and muse be
kept in a locked filing cabinet following an inspection.
CWA Compliance/Enforcement 3-16 Guidance Manual 1985
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Chapter Three Inspections
EPA must keep a chain-of-custody record for all confidential information.
A chain-of-custody record documents possession of evidence from the time of
the inspection to the time it is introduced as evidence in a case.
While traveling, inspectors should keep sensitive information in a locked
briefcase and out of public view. When the briefcase is not in the
inspector's possession, he or she should place it in a locked area such as
a motel room or the trunk of a car (see 40 C.F.R. Part 2.211).
Chapter Eleven contains a more detailed discussion of confidential business
information.
Exit Interview
Inspectors may discuss any deficiencies in self-monitoring procedures and
the need for corrective action with the facility owner or operator, unless
the inspector feels a permit violation has occurred. When the inspector
has reason to believe that an enforcement action may be necessary, he or
she should not release information on the violation before consulting with
the Regional Office. The inspector should never discuss compliance status
or enforcement consequences of noncorapliance, nor should he or she
recommend a particular consultant or consulting firm.
The exit conference with facility officials allows the inspector to
complete any work that remains after the inspection. During the exit
conference, the inspector may do several things:
• Collect missing or additional information;
• Answer any questions;
• Prepare receipts for samples and data;
• Accept claims of confidential business information; and
• Provide for the permittee to obtain the results of the sampling
analysis when completed.
Documentation and Inspection Report
As soon as possible after the inspection, the EPA employee must prepare an
inspection report. The report should contain the inspection report and
narrative and documentary support. EPA should mail the sampling and
analysis data to the permittee or industrial user no later than 30 days
following the completion of the analysis. The narrative portion of the
inspection report should document and support suspected violations.
CWA Compliance/Enforcement 3-17 Guidance Manual 1985
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Chapter Three Inspections
CWA Compliance/Enforcement 3-18 Guidance Manual 1985
-------
Chapter Three
4 Reviewing Facility Recordkeeping and
Reporting
NPDES Requirements Review
NPDES permits impose recordkeeping and reporting requirements. During an
inspection, EPA or an approved NPDES state may review the recordkeeping
practices of the permittee against the recordkeeping and self-monitoring
requirements stated in the permit and in 40 C.F.R. §§122.41, 122.42 and
122.48. Where an Industrial user is involved, EPA should review the
pretreatment reporting requirements in 40 C.F.R. §403.12.
The types of records EPA reviews may Include sampling and analysis data,
monitoring records, laboratory records, plant manuals, operating records,
management records, and pretreatment records (e.g., baseline monitoring
reports). Exhibit 3-5 contains a checklist inspectors should use to verify
that:
* Information on the facility that is contained in the permit is
correct;
• Records and reports required by permit are complete, including
laboratory analyses; and
• The permittee is meeting its compliance schedule, including
construction and permit milestones.
The checklist is also contained in the NPDES Compliance Inspection Manual.
EPA should determine that information is maintained at least three years
from the date of a sample, measurement report, or application pursuant to
40 C.F.R. §122.41(j). In particular, the inspector should check items such
as changes in the raw wastewater volume, changes In the location or charac-
teristics of the waste discharged, and changes in the treatment process.
CWA Compliance/Enforcement 3-19 Guidance Manual 1985
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Chapter Three Reviewing Facility Recordkeeping and Reporting
POTW and Industrial Contributor Pretreatment Requirements Review
The inspector must do the following when addressing pretreatraent
requirements:
1. Determine the status of the POTW's pretreatment program.
• Has the program been approved by EPA or a state, or is the approval
in progress?
• Is the POTW in compliance with the pretreatment requirements of its
permit? If not, what information is lacking, why is the
information overdue, and what is the POTW doing to get back on
schedule?
2. Collect information about the compliance status of contributing Indus-
trial facilities with Categorical Pretreatment Standards. The inspec-
tor should review POTW records to determine:
• Number of contributing industries;
• Whether these industries have been notified of applicable stan-
dards;
• Whether industries have submitted baseline monitoring and other
compliance reports to the POTW;
• Number and names of contributing industries in compliance with
standards; and
• Whether contributing industries with compliance schedules are
meeting deadlines.
3. Collect information about the status of compliance of contributing
industries with prohibited discharges (40 C.F.R. §403.5) and local
limits, if more stringent than EPA Categorical Pretreatment Stan-
dards. This applies in cases where the POTW determines that more
stringent discharge requirements are needed due to industrial loadings
in relation to available POTW treatment systems. The inspector should
report:
• How many and which Industrial facilities appear not to be in
compliance;
• Any reasons for noncorapliance; and
• Any follow-up action recommended, such as further inspections,
monitoring, review of discharge limits, etc.
Exhibit 3-5 contains a checklist for reviewing pretreatraent requirements.
CWA Compliance/Enforcement 3-20 Guidance Manual 1985
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Chapter Three
5 Warrants
In the vast majority of cases, EPA obtains the consent of the facility's
management in order to enter the premises and to conduct compliance moni-
toring activities. However, some facilities refuse to allow EPA employees
access to premises, especially where "trade secrets" are claimed or
surreptitious illegal activities may be conducted. When consent cannot be
obtained (or is withdrawn) an administrative warrant can be used to gain
entry.
Policy
It is EPA policy to obtain a warrant when all other efforts to gain lawful
entry have been exhausted and the inspector has carefully followed
established entry procedures. This policy, of course, does not apply to
pre-inspection warrants.
Marshall v. Barlow's, Inc.
In Marshall v. Barlow's.Inc.. 436 U.S. 307 (1978), the Supreme Court
addressed the need for an administrative warrant when an Occupational
Health and Safety Administration inspector sought entry into a workplace
where consent for the inspection was not voluntarily given by the owner.
The Court concluded that an administrative warrant was required to conduct
such regulatory inspections unless the industry is one with a history of
pervasive regulation, such as liquor or firearms. The Agency applies the
requirements of the Barlow's decision to all CWA inspections.
According to Barlow's, a warrant may be obtained on either of two bases:
• Where there is probable cause to believe that a violation has been
committed; or
* When the inspection is pursuant to a neutral inspection scheme.
(On February 17, 1981, EPA issued "Neutral Inspection Plan for the
HPDES Program," contained in the Water Complinace/Enforcement
Policy Compendium.
CWA Compliance/Enforcement 3-21 Guidance Manual 1985
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Chapter Three Warrants
Probable cause (for purposes of administrative warrants) means that there
is specific evidence of an existing violation or the threat of one. The
application for the warrant must be supported by factual information
sufficient to apprise a court of the specific nature of the circumstances
giving rise to the need for a warrant.
Seeking a Warrant Before Inspection
Normally, EPA arrives at a facility and requests entry without having first
obtained a warrant. If the facility denies entry, EPA then obtains the
warrant. However, it is sometimes advisable to obtain a warrant prior to
going to the facility, A pre-inspection warrant may be obtained at the
discretion of the Regional Office if:
• A violation is suspected and could be covered up within the time
needed to secure a warrant;
• Prior correspondence or other- contact with the facility to be
inspected provides reason to believe that entry will be denied when
the inspector arrives; or
* The facility is unusually remote from a magistrate or a district
court and, thus, obtaining a warrant after a refusal of entry would
require excessive travel time.
Civil VersusCriminal Warrants
If the purpose of the Inspection is to discover and correct, through civil
procedures, noncorapllance with regulatory requirements, a civil warrant
should be secured if entry is refused.
If the primary purpose of the inspection is to gather evidence for a crimi-
nal prosecution and there Is sufficient evidence available to establish
probable cause for a criminal warrant, then a civil warrant should not be
used to gain entry. Rather, a criminal search warrant must be obtained
pursuant to Rule 41 of the Federal Rules of Criminal Procedure. (See
"The Use of Administrative Discovery Devices in the Development of Cases
Assigned to the Office of Criminal Investigations" contained in the General
Enforcement Policy Compendium, #GM-36.)
Evidence obtained during a valid civil inspection is generally admissible
in criminal proceedings.
Securing and Serving an Administrative Warrant
EPA developed certain procedures for obtaining and serving warrants in
light of the Barlow's decision.
CWA Compliance/Enforcement 3-22 Guidance Manual 1985
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Chapter Three Warrants
Important Procedural Considerations
* The application for a warrant should be made as soon as possible
after the denial of entry or withdrawal of consent.
* In order to satisfy the requirements of Barlow's, the affidavit in
support of the warrant must include a description of the reasons
why the establishment has been chosen for inspection. The only
acceptable reasons are specific probable cause or selection of the
establishment for inspection pursuant to a neutral administrative
inspection scheme,
* A warrant must be served without undue delay and within the number
of days stated (usually 10 days). The warrant will usually direct
that it be served during daylight hours.
* Because the inspection is limited by the terms of the warrant, it
is very important to specify to the greatest extent possible the
areas intended for inspection, records to be inspected, samples to
be taken, etc. A vague or overly broad warrant probably will not
be signed by the magistrate.
» 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 U.S. Attorney.
Procedures for Obtaining a Warrant
1. Contact the Regional Counsel*s Office. The inspector should discuss
with the Regional Counsel's Office the facts regarding the denial or
withdrawal of consent or the circumstances that gave rise to the need
for a pre-inspection warrant. A joint determination will then be made
as to whether or not to seek a warrant.
2. Contact Headquarters Program Office. The Regional Office should notify
Headquarters.
3. Contact the United States Attorneys Office. After a decision has been
made to obtain a warrant, the designated regional official should con-
tact the U.S. Attorney for the district in which the property is
located. The Agency should assist in the preparation of the warrant
and necessary affidavits.
4. Apply for the Warrant. The application for a warrant should identify
the CWA as authorizing the issuance of the warrant. The name and
location of the site or establishment to be inspected should be clearly
identified and, if possible, the owner or operator (or both) should be
named. The application can be a one— or two-page document if ail
factual requirements for seeking the warrant are stated in the affi-
davit and the application so states. The application must be signed by
the U.S. Attorney. Exhibit 3-6 contains a model application for an
administrative warrant.
CWA Compliance/Enforcement 3-23 Guidance Manual 1985
-------
Chapter Three Warrants
5. Prepare the Affidavits. The affidavits in support of the warrant
application are crucial documents. Each affidavit should consist of
consecutively numbered paragraphs that describe all of the facts in
support of warrant issuance. Each affidavit should be signed by a per-
son with first-hand knowledge of all the facts stated, most likely the
inspector. An affidavit is a sworn statement that must be notarized or
sworn to before the magistrate. Exhibit 3-7 contains a model
affidavit.
6. Prepare the Warrant for Signature. The draft should be ready for the
magistrate's signature. Once signed, the warrant is an enforceable
document (i.e., failure by a facility to comply with the warrant is
treated as a contempt of the court). The warrant should contain a
"return of service" or "certificate of service" that indicates upon
whom the warrant was served. This part of the warrant is to be dated
and signed by the inspector after the warrant is served. Exhibit 3-8
contains a model administrative warrant.
7. Serve the Warrant. The warrant is served on the facility owner or the
agent in charge at the time of the inspection. Where there is a proba-
bility that entry will still be refused, or where there are threats of
violence, the inspector should be accompanied by a U.S. Marshal. In
this case, the U.S. Marshal is principally charged with executing the
warrant, and the inspector must abide by the U.S. Marshal's decisions.
8. Perform the Inspection. The inspection should be conducted strictly in
accordance with the warrant. If sampling is authorized, all procedures
must be followed carefully, including presentation of receipts for all
samples taken. If records or other property is authorized to be taken,
the inspector must issue a receipt for the property and maintain an
inventory of anything removed from the premises. This inventory will
be examined by the magistrate to ensure that the inspector has not
overstepped the warrant's authority.
9. Return the Warrant. After the inspection has been completed, the war-
rant must be returned to the magistrate. Whoever executes the warrant
(i.e., the U.S. Marshal or whoever performs the inspection) must sign
the return of service form indicating to whom the warrant was served
and the date of service. The executed warrant is then returned 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 inven-
tory is accurate and complete.
CWA Compliance/Enforcement3-24Guidance Manual 1985
-------
Chapter Three
6 Exhibits
This section contains the following exhibits;
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit 3-8:
Discharge Monitoring Report
Model Pre-Inspection Notification Letter
NPDES Compliance Inspection Report
Deficiency Notice
Records, Eeports, and Schedules Checklist
Model Application for an Administrative Warrant
Model Affidavit in Support of Application for an
Administrative Warrant
Model Administrative Warrant
CWA Compliance/Enforcement
3-25
Guidance Manual 1985
-------
Chapter Three Exhibits
CWA Compliance/Enforcement 3-26 Guidance Manual 1985
-------
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-------
Chapter Three
Exhibit 3-1
GENERAL INSTRUCTIONS
I If farm Hsi fctra f anal!) cosiple cd f»* frcrrmtin* o^ma:J slum* monitoring period yndir
"MAXIMUM"1 __
«L Enter 'PERMIT REQUIREMENT" for eaeh paramc-er utder "QUANTmr and -QUALITY" a. «(Jtc»neil in pemtt
7. Under "NO CX* cnier nurcber of »anple meaturcmeiii djnng momionng pericd ifot eteeed maximum (aiul/or minimum or 7-dajr
»%'ersje at an;rocnatc)ji:nrii rcru "in tnt for caco f*i" c.e^. If noie er.cr "0"
S E"Uer"I-REQLENC\ OF ANALWS" bo.nsi'SX .IPLE r-.F-NSwREVCiVrjce-^l ffea.ncv nf lin-flm; and anahtit uicd during
Etig period^ and as "PERMIT R£QLlR£M£NT"*|:tcifie4 m permit (tg., Encr "CONT1* for ceuttn«3«t imtmiefinfi,
IIT* for ef» d»y per m^pek, "1/33" for ww da* per month "I/9Q" far one dav per 6>arwr, t e.)
Ersier "SAMPLE T^ PE* bath ss "SAMPLE ME.\SORCMENT™ (actual un-pie tvpe used danag irdnitoriss
"PEfMIT REOUIREMENT'CcB-, iaier "GRAB* for individual taroplc. "24HC for 2^-Umir compoiiM:, V
§ period) 2si3 a
N/A" for cerHi
10 WHERE VIOLATION"; GF !>£8Mrr ftEQllRtMCNT^ ARE REPORTED ATTACH A BRIEF EXPLANATION TO DESCRIBE
OM.bC AND CORKECTIV£ ACTIONS TAkEN RCfrrENCC E'VCII VIOLATION 3Y DATE-
II If "no dise*iaf js"* oec»r» d«n"c ma-si tor ins rcnod en,tc- "NO DISCfl AR.OC* acrois forn n p :cs of dai» eBtfv
12. Enter -NAME.TITLE OF PRINCIPAL EXECUTE C OFFICER" »uH ^JGNATtRE OF PH1.NCIPAL EXECUTiVE OFFICER OR
AUTHORIZED AGENT"-TELEPHONE NUMBER' and"l>ATr n boitom of firm.
IJ Mzti n-ncd Rrpon to Orfict{*) br dzi^i) j-rr (red 11 «c*"ji Prsin eoiv for vr it rc*ern1i.
14. More a'ciaikd Lasiru£U«a f« au of itm DISCHARGE MONITORING REPOUT (JMil) form miy be abumed from OfHc^i)
LEGAL NOTICE
Thtt report s rrqmred by bw (31 USC 1311 40 CFR I25.2T) r-tiJun m rnrart or Caduit to rnon trmhTuny can reiuJi in ovO petaiio not
to exceed S10000 per day of violation, Of u> ciinuul pcnalitei not to exceed 523,000 per day of violation, or by improonmrnt for not more Itafl
oiur jmur, or 67 boto.
OHO3« MUM O
CWA Compliance/Enforcement
3-28
Guidance Manual 1985
-------
Chapter Three Exhibit 3-2
Model Pre-Inspection notification Letter
Certified Mail - Return Receipt Requested
Dear Sir: Date
Pursuant to the authority contained in Section 308 of the Clean Water •
Act (33 U.S.C. §1251 et seq.), representatives of the U.S. Environ-
mental Protection Agency (EPA), or a contractor retained by EPA, shall
conduct, within the next year, a compliance monitoring inspection of
your operations including associated waste treatment and/or discharge
facilities located at (site of inspection). This inspection will
ascertain the degree of compliance with the requirements of Che
National Pollutant Discharge Elimination System (NPDES) permit issued
to your organization.
Our representatives will observe your process operations, inspect your
monitoring and laboratory equipment and methods, collect samples,
examine appropriate records, and will be concerned with related
matters.
In order to facilitate easy access to the plant site, please provide
the name of an individual who can be contacted upon arrival at the
plant. Additionally, we would appreciate receiving a list of che
safety equipment you would recommend that our representatives have in
their possession in order to safely enter and conduct the inspection.
Please provide the information requested within 14 days of receipt of
this letter.
If you have any questions relating to anything concerning this
inspection, please call (appropriate designated official).
Sincerely yours,
Director
Water Management Division
CWA Compliance/Enforcement 3-29 Guidance Manual 1985
-------
Chapter Three
Exhibit 3-3
HPDES Compliance Inspection teport
UniuM Stittt
-------
Chapter Three Exhibit 3-3
INSTRUCTIONS
Section A: National Data System Coding
Column 1: Transaction Cods: Use N, C, or 0 for New, Change, or Delete All inspections will be new unless (here is an
error in the data entered.
Columns 3-11: NPDES Permit No. Enter the facility's NPOES permit number (Use tha Remarks columns to record the
State permit number, if necessary)
Columns 12-17: Inspection Date. Insert the date entry was made into the facility Usetheyear/momh/dayformatje g,
82/06/301* June 30,1982),
Column 18: inspection Type. Use one of the codas listed Mow to describe the type of inspection;
A-Pwforraancs Airiit E-Corps o£ Engineers Inspection S-Ccmpliance Sampling
B-fUojronitoring L-Enteccenent Case Support- X-Toxic Sampling
C-Conpliance Evaluation P-Pretreatroent
!>0iagn<»tic S-SelacHva inspection
Column 19; Inspector Coda, Use one of the codas listed below to describe the lead agercy m the inspection
C-Contractor or Other Inspector (Specify N-NBJC Inspectors
in content field) H-EPA Regional Inspector
E-Oorps of Engineers S-Stata Inspector
3-Joiot S?A/State Itepectors-ffiA .lead T-Ooint State/EPA inspectors-State Lead
Column 21 -88: Remark*. These columns are reserved for remarks at the discretion of the Region
Column S3: facility Evaluation Rating. Use information gathered during the inspection (regardless of inspection type)
to evaluate the quality of the facility self-monitoring program Grade the program using a scale of 1 to 5 with a score of 5
being used for very reliable self-monitoring programs and 1 being used (or very unreliable programs
Column 71; Biomonitonng Information. Enter D for static testing Enter F for flow through testing Enter N for no
biomcnitoring.
Column 72; Quality Assurance Data Inspection. Enter Q if the inspection was conducted as followup on quality
assurance sample results inter N otherwise.
Columns 73-80: These columns are reserved for regionally defined information.
Section 8. Facility Data
This section is self-explanatory
Section C. Areas Evaluated During Inspection
Indicate findings IS. M. U, or N/Ei in the appropriate box Use Section 0 and additional sheets as necessary Support the
findings, as necessary, in a brief narrative report Use the headings given on me report form (e g , Permit, Records/Re-
ports) when discussing the areas evaluated during the inspection The heading marked 'Other * may include activities
such as SPCC. BMP's. and multimedia concerns
Section 0 Summary of Findings/Comments
Briefly summarize the inspection findings This lummary should abstract tne pertinent inspection findings, not replace
the narrative report Include a list of attachments Include effluent data here instead of permit limits when effluent
sampling has been done Use extra sheets as necessary
CHA Compliance/Enforcement 3-31 Guidance Manual 1985
-------
Chapter Three
Exhibit 3-4
Deficiency Notice
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM (HfDBSl
(ftttd ImtixHoas on (net at Ittt MM fe*fer< cornel* «««>
Otinni tl» compUjncc leapectton cjmed out on Idtiel.
. the deficiencies noted below ureie found
Additional area/of deficiency miy be brought to yoyr mention following a complete review of the 1 rupee t ion Report and other in-
form it ion on filo with ihe REGULATORY AUTHORITY administering your NPDES PERMIT
Mf ASUftXMCM? f0*^*end t, m*(iuwr9r*Oya!
Mom n(Xm| pombw taOaw^f Kiton cio M iimmti br IIH REGULATORY AUTHORITY la wtiltll ram OMRtui«il!B!ttt4»
-------
Chapter Three
Eshiblt3-5
Eeeotds. Reports, and S
Werificatian
YES NO N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes tfo N/A
Yes No N/A
DEPECTICN OBSERVATIONS VERIFY INFORMATION CONTAINED IN PERMIT
1* Correct name and mailing address of permittee.
2. Facility is as described in permit.
3. Notification has been given to EPA/State of new, different, increased discharges.
4. Accurate records of influent volume are maintained, tfen appropriate.
5. Number and location of discharge points are as described in the permit.
6. Name and location of receiving waters are correct.
7. All discharges are permitted.
B. ReoordtoBejring and Reporting Evaluation
YES NO N/A
Yes to N/A
Yes Ito N/A
Yes No N/A
Yes ND N/A
Yes ND N/A
Yes ND N/A
Yes ND N/A
Yes No N/A
Yes ND N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes ND N/A
Yes ND N/A
Yes No N/A
Yes No N/A
Yes MD N/A
Yes Na N/A
RECORDS AND REPORTS ARE MAINTAINED AS REQUIRED BY PERMIT
1. All required information is available, complete, and current; and
2» Information is maintained for required period.
3. Analytical results are consistent with the data reported on the DMR's.
4. Sampling and Analysis Data are adequate and include:
a. Dates, times, location of sampling
b. Wane of individual performing sampling
c. Analytical methods and techniques
d. Results of analysis
e. Dates of analysis
f. Name of person performing analysis
g. Instantaneous flow at grab sample stations
5. Monitoring records are adequate and include
a. Flow, pH, D.O. , etc. as required by permit
b. Monitoring charts
6« Laboratory equipment calibration and maintenance records are adequate.
7. Plant Records are adequate* and include
a. O&M Manual
b. "As-built" engineering drawings
c. Schedules and dates of equipment maintenance and repairs
d. Equipment supplies manual
e. Equipment data cards
*Required only for facilities built with Federal construction grant funds.
-------
Chapter Three
Exhibit 3-5
Yes Ho N/A
Yes No N/A
Yes to N/A
Yes No N/A
Yes No N/A
Yes to N/A
Becocds, Reports, and Schedules QecfclisC
8. Pretreatment records are adequate and include:
a. Industrial Waste ttdinance (or equivalent documents)
b. Inventory of industrial waste contributors, including:
1. Compliance records
2. User charge information
9. SPOC properly completed, when required.
10. Best ffenageraent Practices Program available, when required.
C. Oanpliance Schedule Status Review
YES NO N/A
Yes M) N/A
Yes to N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes to N/A
Yes to N/A
Yes No N/A
Yes to N/A
Yes to N/A
Yes to N/A
1HE
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
MttUTiKE IS MKtTlNG 'WE (JUMRoANCE iJtHEUULE
The permittee has obtained necessary approvals to begin construction.
Financing arrangements are complete.
Contracts for engineering services have been executed.
Design plans and specifications have been completed.
Construction has begun.
Construction is on schedule.
Equipment acquisition is on schedule.
Construction has been completed.
Start-up has begun.
The permittee has requested an extension of time.
The permittee has met compliance schedule.
CW& Conplianoe/Biforcemenr
3-34
Guidance
1985
-------
Chapter Three
Exhibit 3-5
Records, Reports, and ?H*«*"1«*s Checklist
D. POTW Pretreataent Requirements Review
YES NO N/A
Yes No N/A
Yes No N/A
"es No N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes ND N/A
Yes No N/A
Yes No N/A
Yes No N/A
Yes No N/A
THE FACILITY IS SUBJECT TO PIEI1MMMT KBQuTH*fifIS
1. Status of POW Pretreaonent Program
a. The BOW Pretreaonent Program has been approved by EPA. (If not, is approval
in progress? )
b. The POTW is in compliance with the Pretreaonent Program Compliance Schedule.
(If not, note why, what is due, and intent of the P0IW to remedy)
2. Status of CoBftliance with Categorical Pratreatraent Standards.
a. How many industrial users of the POIW are subject to Federal or State
Pretreacnent Standards?
b. Are these industries aware of their responsibility to comply with
applicable standards?
c. Have baseline monitoring reports (403.12) been submitted for these
industries?
i. Have categorical industries in noncontplianca (on EMR reports)
submitted compliance schedules?
ii. How many categorical industries on compliance schedules are meeting
the schedule deadlines?
d. If the compliance deadline has passed, have all industries submitted 90 day
compliance reports?
e. Are all categorical industries submitting the required semiannual report?
f. Are all new industrial discharges in compliance with new source
pretreadnent standards?
g. Has the K7IW submitted its annual pretreaonent report?
h. Has the POIW taken enforcement action against noncontplying
industrial users?
i. Is the POTW conducting inspections of industrial contributors?
3. Are the industrial users subject to Prohibited Limits (403.5) and Local iimts
more stringent than EPA in compliance?
(If not, explain why, including need for revision of limits.)
Conpliaritc^Biforcement
3-35
Guidance ME«wal 1985
-------
Chapter Three
Exhibit 3-6
Model Application for Administrative Warrant
UNITED STATES DISTRICT COURT
DISTRICT OF
IN THE MATTER OF:
Docket No.
Case No.
Application for an
Administrative Warrant
NOW COMES a duly designated representative of the Administrator of the
United States Environmental Protection Agency, by and through (name),
United States Attorney for the District of HHZI1_
and applies for an administrative warrant to enter, inspect, reproduce
records, photograph, and sample for compliance with the Clean Water
Act, 33 U.S.C. §1251 et seq., and as authorized by Section 308 of the
Act, 33 U.S.C. §1318, the premises at (description of the premises)
in the possession, custody, or control of the (name of company or
owner). In support of this application, the duly designated
representative of the Administrator respectfully submits an affidavit
and a proposed warrant.
Respectfully submitted,
(Signature of U.S. Attorney)
United States Attorney for the
District of
(Date)
CWA Compliance Enforcement
3-36
Guidance Manual 1985
-------
Chapter Three
Exhibit 3-7
Model Affidavit in Support of
Application for an Administrative Warrant
UNITED STATES DISTRICT COURT
DISTRICT OF
IN THE MATTER OF:
Docket No.
Case No.
Affidavit in Support of
Application for an
Administrative Warrant
State of
County of
(Name of Affiant)
, being duly
—^^^^^^^MMV^H«—BMm^^^^_^^^_^^_^^» *
sworn upon his(her) oath, according to law, deposes and says:
1. I am compliance officer with the (division) . United
, and a duly
States Environmental Protection Agency, Region
designated representative of the Administrator of the United States
Environmental Protection Agency for the purpose of conducting inspec-
tions pursuant to Section 308 of the Clean Water Act, 33 U.S.C. §1318.
I hereby apply for an administrative warrant of entry, inspection,
reproduction of records, photography, and sampling of the premises in
the possession, custody, or control of the (name of company or owner).
2. (Name of establishment, premises, or conveyance) is a
(describe business) that the undersigned compliance officer of the
United States Environmental Protection Agency has reason to believe is
in violation of the Clean Water Act. This belief is based upon the
following facts and information: (Summarize the reasons why a viola-
tion is suspected and the specific facts that give rise to probable
cause or summarize the neutral administrative inspection scheme used
to select the premises for inspection).
3. The entry, inspection, reproduction of records, photography,
and sampling will be carried out with reasonable promptness, and a
copy of the results of analyses performed on any samples or material
collected will be furnished to the owner or operator of the subject
premises.
CWA Compliance/Enforcement
3-37
Guidance Manual 1985
-------
Chapter Three Exhibit 3-7
4. The compliance officer may be accompanied by one or more other
compliance officers of the United States Environmental Protection
Agency.
5. A return will be made to the court at the completion of the
inspection, reproduction of records, photography, and sampling.
(Signature of Affiant)
(Title)
(Division)
Region ( )
United States Environmental
Protection Agency
Before me, a notary public of the State of ,
County of , on this day of
19 , personally appeared , and upon oath
stated that the facts set forth in this application are true to his
(her) knowledge and belief.
(Signature of Notary)
A Notary Public of
My Commission Expires
CWA Compliance/Enforcement 3-38 Guidance Manual 1985
-------
Chapter Three
Exhibit 3-8
Model Administrative Warrant
UNITED STATES DISTRICT COURT
DISTRICT OF
IN THE MATTER OF:
To (name)
(title)
Docket No._
Case No«
Warrant of Entry, Inspection,
Reproduction of Records,
Photography, and Sampling
United States Environmental
Protection Agency, Region , and any other duly designated repre-
sentatives of the Administrator of the United States Environmental
Protection Agency:
Application having been made by the United States Attorney on behalf of
the United States Environmental Protection Agency (EPA) for a warrant
of entry, inspection, reproduction of records, photography, and
sampling to determine compliance with regulations under the Clean Water
Act, 33 U.S.C. §1251 et seq., and the court being satisfied that there
has been a sufficient showing that reasonable legislative or admini-
strative standards for conducting an inspection and investigation have
been satisfied;
IT IS HEREBY ORDERED that EPA through its duly designated representa-
tives (Names of representatives) is hereby entitled and author-
ized to have entry upon the following described premises:
(Description of premises.)
IT IS FURTHER ORDERED that entry, inspection, reproduction of records,
photography, and sampling shall be conducted during regular working
hours or at other reasonable times, within reasonable limits, and in a
reasonable manner.
IT IS FURTHER ORDERED that the warrant shall be for the purpose of
conducting an entry, inspection, reproduction of records, photography,
and sampling pursuant to 33 U.S.C. §1318 consisting of the following
activities:
CWA Compliance/Enforcement
3-39
Guidance Manual 1985
-------
Chapter Three Exhibit 3-8
(Describe specific activities.) For example:
* Entry to, upon, or through the above-described
premises including all buildings, structures,
equipment, machines, devices, materials, and sites to
inspect, sample, monitor, and Investigate the said
premises*
* Access to and reproduction of all records pertaining
to or relating to water pollutant discharges.
* Inspection, including photographing of any equipment,
methods, or sites used to monitor or control water
pollutants.
IT IS FURTHER ORDERED that, if any property is seized, the duly
designated representative or representatives shall leave a receipt for
the property taken and prepare a written inventory of the property
seized and return this warrant with the written Inventory before me
within 10 days from the date of the inspection.
IT IS FURTHER ORDERED that this warrant shall be valid for a period of
10 days from the date of this warrant.
IT IS FURTHER ORDERED that the United States Marshal is hereby autho-
rized and directed to assist the representatives of the United States
Environmental Protection Agency in such manner as may be reasonable,
necessary, and required.
(Signature of Magistrate)
(Date)
CWA Compliance/Enforcement 3-40 Guidance Manual 1985
-------
Chapter Three Exhibit 3-8
SETUBK OF SERVICE
I hereby certify that a copy of the within warrant was served by
presenting a copy of same to (facility owner or agent) on (date) at
(location of establishment or place) .
(Signature of person making service)
(Official title)
8ETUBN
Inspection of the establishment described in this warrant was completed
on (date) .
(Signature of person conducting the inspection)
CWA Compliance/Enforcement 3-41 Guidance Manual 1985
-------
Chapter Three Exhibits
CWA Compliance/Enforcement 3-42 Guidance Manual 1985
-------
Chapter Four
Documentation of Evidence
Chapter Contents Page
1 Introduction 4-1
2 Self-Monitoring Reports 4-3
3 Compliance File Review 4-5
Organizing Compliance Data 4-5
Controlled Identification of Samples 4-6
4 Review of Sources of Evidence 4-9
Compliance File Documentation 4-9
Further Processing of the Compliance File—
Enforcement Case Review 4-13
5 Exhibits 4-15
Exhibit 4-1: Custody Seal 4-17
Exhibit 4-2: Chain of Custody Record 4-18
CWA Compliance/Enforcement 4-i Guidance Manual 1985
-------
Chapter Four Contents
CHA Compliance/Enforcement 4-li Guidance Manual 1985
-------
Chapter Four
1 Introduction
Chapter Three discussed compliance monitoring procedures, including
self-monitoring reports, inspections, and review of records. This chapter
discusses documentation of evidence to ensure its usefulness as admissible
evidence in an EPA enforcement proceeding. Documentation serves to freeze
the actual conditions existing at the time of the inspection so that evi-
dence may be examined objectively at a later date by compliance personnel.
In addition to monitoring reports, types of documentation include the field
notebook, statements, photographs, drawings and maps, printed matter,
mechanical recordings, and copies of records. EPA documents the evidence
for a CWA enforcement action based on the following sources:
• Discharger self-monitoring reports;
» Data obtained by EPA in its own compliance/monitoring activities;
» State-generated information;
• POTW-generated information; and
» Information obtained from state or local police.
Section 2 of this chapter, "Self-Monitoring Reports," discusses the use of
self-monitoring reports as admissible evidence. The remainder of the
chapter discusses documentation of other evidence generally obtained in the
course of an EPA inspection.
CWA Compliance/Enforcement 4-1 Guidance Manual 1985
-------
Chapter Four Introduction
CWA. Compliance/Enforcement 4-2 Guidance Manual 1985
-------
Chapter Four
2 Self-Monitoring Reports
Discharger self-monitoring reports often constitute the most significant
admissible evidence in a CWA enforcement action• As discussed in Chapter
Three, the CWA and the NPDES regulations require NPDES permittees to submit
discharge monitoring reports (DMRs) and 24-hour reporting of noncompli-
ance. The DMR provides EPA with data on whether the permittee is achieving
Its permit effluent limitations. The NPDES program relies extensively on
these monitoring reports for evidence.
Monitoring reports are generally sufficient to establish liability for
violations of an NPDES permit. See Student Public Interest Research group
of New Jersey, lac, v. Prltz8che, Podge & Olcott, Inc., 579 F. Supp. 1528
(D. N.J. 1984). In that case, a citizen group filed a motion for partial
summary judgment, claiming that permit violations recorded on the defen-
dant's own DMRs and noncompliance reports (NCRs) established liability.
The defendant argued that many of its test results were actually due to
inaccurate measurements or faulty test procedures, although its results did
not constitute evidence of reporting Inaccuracies. The court ruled that
the DMRs and NCRs may be used as admissions to establish a defendant's
liability. See also, Student Public Interest Research Group, Inc. v.
Monsanto Co., 22 ERC 1137, 1141 (D. N.J. 1983} and Sierra Club v. Raytheon
Co_. 22 ERC 1050, 1053 (D. Ma., 1984). However, where defendant offers
evidence to contradict its own DMR, plaintiff's motion for partial summary
judgment may not be granted. See Friends of the Earth v. Facet Enter-
prises. Inc. 22 ERC 1143, 1146 (W.D. N.Y. 1984).
In addition to filing the required DMRs, a facility may conduct a compli-
ance audit on Its own. Note that these independent audits are generally
not protected against disclosure to the government or to other parties nor
do they protect the alleged violator from an enforcement action. Such
information may help EPA enforcement personnel to determine the reason for
noncoraplianc e.
As discussed in Chapter Three, the General Pretreatment Regulations also
set reporting requirements for indirect dischargers that may establish
strong evidence of violations of pretreatment categorical standards.
CWA Compliance/Enforcement 4-3 Guidance Manual 1985
-------
Chapter Four Self-Monitoring Reports
While the required reporting for NPDES permitting and pretreatment consti-
tutes key evidence of liability, inspections may provide more detailed and
reliable information on the facility's violations, and thus help fashion an
appropriate enforcement response. For example, the Region may want to
conduct sampling at the violating facility to verify the results of a DMR
that was prepared by a facility with little experience in monitoring. The
remainder of this chapter deals with evidence other than permittee or
industrial user monitoring reports.
CWA Compliance/Enforcement 4-4 Guidance Manual 1985
-------
Chapter Four
3 Compliance File Review
To ensure the validity and probative value of documentary evidence for an
administrative or judicial enforcement proceeding, enforcement personnel
must review the evidence obtained for objectivity, adequacy, and proper
Identification, In some Instances, enforcement personnel may request a
Headquarters Enforcenent Case Review, which includes an interpretation of
laboratory test results. In all cases, enforcement personnel must verify
that all procedural safeguards were implemented. This section is based on
the EPA HPPES Compliance Inspection Manual, June 1984.
Organizing Compliance Data
EPA may conduct NPDES Inspections as part of a routine inspection or as a
follow-up to violations identified in a discharge monitoring report or
other self-monitoring report. Upon completion of an NPDES inspection, the
inspector must organize the documentary evidence that he or she has
collected into a compliance file. An inspection file may actually consist
of two separate files—a nonconfidential file and confidential business
information (CBI) file.
The inspector organizes information gathered during an NPDES inspection
that has not been claimed as NPDES CBI into a package referred to as the
nonconfidential inspection file. This file contains the inspector's report
and all forms and nonconfidential documentary evidence secured by the
inspector that relate to the inspection.
The CBI inspection file contains information gathered during an NPDES
inspection that has been claimed as CBI. When an inspector returns from an
inspection with information that has been declared confidential, the
inspector should immediately give the information to the Document Control
Officer (DCO), who then assigns a document control number to the confiden-
tial material. (The inspector does not have authority to grant or deny a
CBI request.) In addition, the inspector informs the DCO of any physical
samples that were claimed as confidential. The DCO assigns a document
control number to physical samples and notifies the laboratory of this
number. (The document control number is used by laboratory personnel in
completing the sample chain of custody and laboratory analysis forms.)
CWA Compliance/Enforcement 4-5 Guidance Manual 1985
-------
Chapter Four ^ Compliance File Review
Controlled Identification of Samples
Regional enforcement personnel must determine that samples were properly
collected and accurately and completely Identified. Any label used to
identify the sample must be moisture resistant and able to withstand field
conditions. Whenever enforcement personnel take a sample, they should
prepare a receipt for the sample that includes the following information:
* Name, office address, and signature of the inspector (sampler);
» Sample site location, discharge, and facility;
• Date and time of collection;
* Indication of grab or composite sample with appropriate time and
volume information;
* Identification of parameter to be analyzed;
• Notation of preservative used;
• Indication of any unusual condition at the sampling location or
in the appearance of the water;
* Notation of conditions (such as pH, temperature, residual chlorine,
and appearance) that may change before the laboratory analysis,
including the identification number of instruments used to measure
parameters in the field.
When a facility claims that samples or documents are confidential, EPA must
follow the confidential business information (CBI) procedures in 40 C.F.R.
Part 2, (Chapter Eleven contains a detailed discussion of EPA handling of
CBI.)
Samples that are to be used as evidence must be identified with tags and
sealed with EPA seals (see Exhibit 4-1). The EPA inspector places the
seals on sample containers.
Transfer of Custody and Shipment
In order to ensure the admissability of the permit compliance sampling data
in court, there must be accurate written records tracing the custody of
each sample through all phases of the monitoring program. The primary
objective of this chain of custody is to create an accurate written record
that can be used to trace the possession and handling of the sample from
the moment of its collection through analysis and introduction as evidence.
CWA Compliance/Enforcement 4-6 Guidance Manual 1985
-------
Chapter Four Compliance Pile Review
The EPA Chain of Custody Record contains the following information (see
Exhibit 4-2):
* Sampler's name;
* Site location;
t Sampling location;
* Sample and inspection number;
• Date and time of collection;
t Sample analysis required;
* Remarks; and
t Names and dates of individuals involved in accepting and relin-
quishing samples.
Compliance Inspection Manual contains a more detailed discussion
of sampling and chain of custody procedures.
CWACompliance/Enforcement4-7Guidance Manual 1985
-------
Chapter Four Compliance File Review
CWA Compliance/Enforcement 4-8 Guidance Manual 1985
-------
Chapter Four
4 Review of Sources of Evidence
An NPDES violation can be documented through a combination of evidential
sources. These sources include DMRs as well as the inspection report,
samples, statements, photographs, drawings and maps, printed matter, and
copies of records. Enforcement personnel should review the available
evidence to ensure that it is sufficient to support an enforcement action:
• The validity and quality of the evidence;
• That all necessary documentation has been provided; and
• That such documentation is adequate to substantiate the substance
of the violation.
This section is based on the NPDES Compliance Inspection Manual, June 1984.
Compliance File Documentation
Inspector's Field Notebook
The core of all documentation relating to an inspection is the field
notebook, which provides accurate and inclusive documentation of all
inspection activities. The notebook will form the basis for written
reports and should contain only facts and pertinent observations.
Language should be objective, factual, and free of personal feelings or
terminology that might prove inappropriate. Notebooks become an important
part of the evidence package and can be entered in court as evidentiary
material.
Inspection Entries
Since an inspector may be called to testify in an enforcement proceeding,
each inspector must keep detailed records of inspections, investigations,
samples collected, and related inspection functions. Types of information
that should be entered into the field notebook include:
CWA Compliance/Enforcement^9 Guidance Manual 1985
-------
Chapter Four Review of Sources of Evidence
• Observations. All conditions, practices, and other observations
that will be useful in preparing the inspection report or that will
validate evidence should be recorded.
* Documents and Photographs. All documents taken or prepared by the
Inspector should be noted and related to specific inspection
activities. (Photographs taken at a sampling site should be listed
and described.)
• Unusual Conditions and Problems. Unusual conditions and problems
should be noted and described in detail.
» General Information. Names and titles of facility personnel and
the activities they perform should be listed along with statements
they may have made and other general information. Weather condi-
tion should be recorded. Information about a facility's record-
keeping procedures may be useful in later inspections.
The field notebook is a part of the Agency's files and is not to be con-
sidered the Inspector's personal record. Notebooks are held indefinitely
pending disposition instructions.
Samples
Samples are the evidence most frequently gathered by inspectors. For the
analysis of a sample to be admissible as evidence, a logical and documented
connection must be shown between samples taken and analytical results re-
ported. This connection is shown by using a chain of custody system that
identifies and accompanies a sample between the time it is collected and
the time it is analyzed. (See discussion in Section 3 of this chapter.)
Statements
Inspectors may obtain formal statements from persons who have personal,
first-hand knowledge of facts pertinent to a potential violation. State-
ments can be used to verify data collected during an Inspection. They can
also be used as admissions by the facility as to who owns, operates, or
controls the facility. The statement of facts is signed and dated by the
person who can testify to those facts in court, and it may be admissible as
evidence.
The principal objective of obtaining a statement is to record in writing,
clearly and concisely, relevant factual Information so that it can be used
to document an alleged violation.
Photographs
The documentary value of photographs ranks high as admissible evidence.
Clear photos of relevant subjects, taken in proper light and at proper lens
settings, provide an objective record of conditions at the time of
CWA Compliance/Enforcement 4-10 Guidance Manual 1985
-------
Chapter Four Review of Sources of Evidence
inspection. If possible, photographs should be taken in such a way as to
keep "sensitive" buildings or operations out of the background. Note that
photographs may always be taken from areas of public access (e.g., across a
stream, from a parking lot, etc.). The photographs should be identified by
location, purpose, date, time, inspector's initials, and related sample
number. A log of all photographs taken should be maintained in the
inspector's field notebook, and the entries should be made at the tine the
photograph is taken.
When a situation arises that dictates the use of photographs, the inspector
should obtain the permittee's approval to take photographs. The inspector
must be tactful in handling any concerns or objections a permittee may have
about the use of a camera. In some cases, the inspector may explain to the
permittee's representative that waste streams, receiving waters, and
wastewater treatment facilities are public information, not trade secrets.
In the event the permittee's representative still refuses to allow photo-
graphs and the inspector believes the photographs will have a substantial
impact on future enforcement proceedings, regional enforcement attorneys
should be consulted for farther instructions. At all times, the inspector
is to avoid confrontations that might jeopardize the completion of the in-
spection.
Prayings andMaps
Schematic drawings, maps, charts, and other graphic records can be useful
in supporting violation documentation. They can provide graphic clarifica-
tion of site location, relative height and size of objects, and other
information. Drawings and maps should be simple and free of extraneous
details. Basic measurements and compass points should be included to
provide a scale for interpretation. Drawings and maps should be identified
by source and be dated.
Printed Matter
Brochures, literature, labels, and other printed matter may provide impor-
tant information regarding a facility's conditions and operations. These
materials may be collected as documentation if, in the inspector's judg-
ment, they are relevant. All printed matter should be identified with
date, inspector's Initials, and origin.
Mechanical Recordings
Records produced electronically or by mechanical apparatus can be entered
as evidence. Charts, graphs, and other "hard copy** may also serve as
evidence. Data collected should be identified by date of collection,
inspector's Initials, and related sample number.
CWA. Compliance/Enforcement 4-11 Guidance Manual 1985
-------
Chapter Four Review of Sources of Evidence
Copies of Records
Records and files may be stored in a variety of information retrieval
systems, including written or printed materials, computer or electronic
systems, or visual systems such as microfilm and microfiche.
When copies of records are necessary for an inspection report, storage and
retrieval methods must be taken into consideration:
* Written of printed records can generally be photocopied on-site.
Portable photocopy machines may be available to inspectors through
the Regional Office. When necessary, however, inspectors are
authorized to pay a facility a "reasonable" price for the use of
facility copying equipment.
- At a minimum, all copies made for or by the inspector should be
initialed and dated for Identification purposes. (See identifi-
cation details below.)
- When photocopying is Impossible or impracticable, close-up
photographs may be taken to provide suitable copies*
• Computer or electronic records may require the generation of
"hard" copies for inspection purposes. Arrangements should be
made during the opening conference, if possible, for these copies.
- Photographs of computer screens may possibly provide adequate
copies of records if other means are impossible.
• Visual systems (microfilm, microfiche) usually have photocopying
capacity built into the viewing machine, which can be used to
generate copies.
- Photographs of the viewing screen may provide adequate copies if
"hard" copies cannot be generated.
Identification Procedures
Immediate and adequate Identification of records reviewed is essential to
ensure the ability to Identify records throughout the Agency custody
process and to ensure their admlssibllity In court. When Inspectors are
called to testify in court, they must be able to positively Identify each
particular document and state its source and the reason for its collection.
Initial, date, number, and write in the facility's name on each record, and
log these items in the field notebook.
* Initialing/Dating. Each inspector should develop a unique system
for initialing (or coding) and dating records and copies of
records so that he or she can easily verify their validity. This
can be done by initialing each document In a similar position, or
by another method, at the time of collection. Both the original
CWA Compliance/Enforcement 4-12 Guidance Manual 1985
-------
Chapter Four Review of Sources of Evidence
and copy should be initialed. All record identification notations
should be made on the back of the document.
* Numbering. Each document or set of documents substantiating a
suspected violation or violations should be assigned an identifying
number unique to that document. The number should be recorded on
each document and in the field notebook.
* Logging. Documents obtained during the inspection should be
entered in the field notebook by a logging or coding system. The
system should Include the identifying number, date, and other
relevant information:
- The reason for copying the material (i.e., the nature of the
suspected violation or discrepancy).
- The source of the record (i.e., type of file, individual who
supplied record).
- The manner of collection (i.e., photocopy, other arrangements).
Further Processing of the Compliance File—jBnforcement Case Review
Once the compliance file has been initially reviewed, further case
development may be necessary. If so, regional enforcement personnel should
send the file to OECM and the program office. Otherwise, the Region may
use the evidence collected to take enforcement action or to prepare a
litigation report. (The contents of a litigation report are discussed in
Chapter Eight.)
Headquarters case development may include:
• Review of compliance with recordkeeping and reporting requirements;
• Scientific review to determine the significance of any discrepancy
in chemical composition, toxicity, or risk assessment;
• Review of relationship of the suspected CWA violation to other
federal environmental laws;
* Review of new program elements for which policy interpretations
must be established; and
* Review of program Information that is normally kept on file at
Headquarters.
CWA Compliance/Enforcement 4-13 Guidance Manual 1985
-------
Chapter Four Review of Sources of Evidence
CWA Compliance/Enforcement 4-14 Guidance Manual 1985
-------
Chapter Four
5 Exhibits
This section contains the following exhibits:
Exhibit 4-1: Custody Seal
Exhibit 4-2: Chain of Custody Record
CWA Compliance/Enforcement 4-15 Guidance Manual 1985
-------
Chapter Four Exhibits
CWA Compliance/Enforcement 4-16 Guidance Manual 1985
-------
4J
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ivas Aaoisno
CUSTODY SEAL
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Signature
ivas Aaoisno
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IV
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u
-------
Chapter Four
Exhibit 4-2
Chain of Custody Record
CHAIN OF CUSTODY RECORD
SURVEY
11*110*
NUMlil
S!»IION '.OCAllOH
9
1
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Relinquished by: jij. •!...>
Relinquished by: ti*>i**ni
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Dispatched by: fj«im>*i
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SAMPLERS: ;s*«»**
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Received by: a*m*M> Date/Time
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Received by Mobile laboratory for field Date/Time
analysis: Uvwvx
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Received for Laboratory by Dote/Time
Method of Shipment:
Oiitribtilron: Orig. - Accompany Shipment
1 C0py~ Survey Caordmator Ft*ld Fif«s
CWA Compliance/Enforcement
4-18
Guidance Manual 1985
-------
Chapter Five Contents
CWA Compliance/Enforcement 5-ii Guidance Manual 1985
-------
Chapter Five
1 Introduction
EPA enforcement staff may consider a broad range of enforcement responses
once they have collected all of the noncompliance data from various reports
and inspections (see Chapter Three). This chapter addresses informal
Agency responses to noncompliance (i.e., all enforcement activities other
than administrative and judicial actions). The manual discusses formal
enforcement actions in Chapter Six, "Administrative Enforcement," Chapter
Eight, "Judicial Enforcement: Civil Actions," Chapter Nine, "Criminal
Enforcement of the Clean Water Act," and Chapter Ten, "Enforcement of Con-
sent Decrees."
EPA oust ensure that there is timely and appropriate enforcement of viola-
tions. See "Implementing the State/Federal Partnership in Enforcement:
State/Federal Enforcement Agreements." As discussed in the "National
Guidance for Oversight of NPDES Programs, FY 85," July 6, 1984, an appro-
priate response is one that results in the violator's returning to compli-
ance as expeditiously as possible. Under this guidance, "the administering
agency should strive to take appropriate formal enforcement responses
against 100 percent of its significant noncompliers before they appear on
two consecutive quarterly noncompliance reports (QNCE) for the same viola-
tion (generally within 60 days of the first QNCR) if the permittee has not
returned to compliance. All other instances of noncompliance should be
addressed consistent with the procedures and time frames in administering
the agency's Enforcement Management System (EMS)."
The EMS, issued on March 7, 1977 and discussed below, contains guidance on
the appropriate use of enforcement responses. The Office of Water is
currently revising the EMS.
Informal enforcement responses are generally less resource-intensive than
formal responses and are often used as a fact-finding effort on the extent
of noncompliance. Where these responses will not achieve immediate
compliance, formal enforcement actions should be considered. Informal
enforcement actions include the following:
» Telephone calls;
* Warning letters;
* Meetings;
CWA Compliance/Enforcement 5-1 Guidance Manual 1985
-------
Chapter Five Introduction
* Informal requests for information;
• Inspections; and
• Deficiency notices.
In carrying out their enforcement responsibilities, EPA regional enforce-
ment personnel must coordinate closely with the states consistent with the
State/EPA Enforcement Agreement. For example, where EPA discovers non-
compliance through the receipt of monitoring reports, it should notify the
state and determine the adequacy of any actual or planned state response..
The State/EPA Enforcement Agreements are the basis for EPA coordination
with the state. In addition, the "National Guidance for Oversight of NPDES
Programs" sets criteria for NPDES program enforcement.
CWA Compliance/Enforcement 5-2 Guidance Manual 1985
-------
Chapter Five
2 Level of Action Policy
Enforcement Response Guide
Exhibit 5-1 lists the recommended enforcement responses outlined in the EMS
and serves as a guide for NPDES enforcement personnel. The recommended
responses serve three purposes:
» Provide appropriate responses (for both the severity of action and
the use of Agency resources) for different levels and types of
NPDES permit and reporting violations;
» Ensure a relatively consistent enforcement response for comparable
violations nationwide; and
» Provide a quick reference for enforcement personnel,
EPA and state enforcement personnel should not apply the EMS guidelines
rigidly in any particular case, because the guidelines will not always
prescribe the most appropriate means for achieving compliance. EPA should
determine its response by considering several factors:
» Severity of the violation and Its impact on the environment;
• Compliance history of the discharger;
• Potential impact of an enforcement action on other dischargers;
• Availability of Agency and judicial resources; and
• Considerations of fairness and equity.
When using the EMS, enforcement personnel should generally apply the
following rules:
» Judicial actions will be preceded by administrative orders;
• Violations of administrative orders will result In judicial action;
» When corrective actions are not taken by the violator, a minor
violation may result In judicial action;
CWA Compliance/Enforcement 5-3 Guidance Manual 1985
-------
Chapter Five Level of Action Policy
* Industrial facility production is generally assumed to be
controllable; and
* "Warning" letters are useful to discourage violations by warning
permittees of future enforcement if noncompliance continues.
As provided in the "National Guidance for Oversight of NPDES Programs,"
enforcement response procedures must also include time frames for
escalating enforcement responses where the noncompliance has not been
resolved.
Informal Responses
EPA and the states may use any combination of the following types of
Informal responses, or other responses, as deemed appropriate. Note that
all enforcement contacts with a discharger (including summaries of
telephone calls and meetings) should be described and placed in the permit
or the compliance file. Under the National Oversight Guidance, EPA must
prepare and maintain accurate and complete documentation that can be used
in future formal enforcement actions.
Telephone Calls to the Violator
Telephone contact with the permittee is a cost-effective means of obtaining
information and resolving isolated or infrequent violations. EPA's prompt
response to such violations helps to deter future violations by showing the
permittee that EPA is serious about enforcing NPDES program requirements.
Depending on the type of noncompliance, EPA may want to talk with a partic-
ular person. For example, if a DMR has not been received, EPA may want to
call the plant lab supervisor rather than the plant manager.
When contacting a permittee by telephone, EPA enforcement personnel should
keep the following points In mind:
* Be courteous;
* Identify the specific violations that have prompted the call;
• Seek resolution of the violation; and
» Make no commitment of nonenforcement for past violations.
The EPA employee should note the date and time, the person contacted, and
the substance of the conversation (see Exhibit 5-2, Record of Communica-
tion). The employee places these notes in the permittee's compliance
file, which may serve as the basis for an escalated enforcement response.
The employee should also document his or her ability to contact a permitee
by telephone or the permittee's failure to return phone calls.
CWA Compliance/Enforcement 5-4 Guidance Manual 1985
-------
Chapter Five Level of Action Policy
Preliminary Warning Letter
The warning letter indicates EPA's seriousness about enforcing NPDES
program violations and deters future violations. A warning letter is not a
formal Section 308 information request or a Notice of Violation (discussed
in Chapter Six). The warning letter should be courteous in tone and cover
the following points:
* Identify the specific violation(s);
* Seek resolution of the violation, if it is continuing;
• Warn of future enforcement actions that will result from continued
violative conduct; and
* Make no commitment of nonenforcement for past violations.
The letter may informally solicit information from the permittee about the
magnitude, extent, and environmental effect of the violation, as well as
information regarding any action taken by the permittee to mitigate the
violation. (Exhibits 5-3 through 5-6 contain several model warning letters
to dischargers, covering alleged reporting and effluent limitation viola-
tions.) In addition, EPA must ensure that the affected state is aware of
the noncompliance by forwarding to the state copies of warning letters sent
to violators in the state consistent with the terms of the State/EPA Agree-
ments.
Requests forInformation
If the Agency can obtain information voluntarily from a permittee, it may
include an informal request for information as part of a warning letter.
Although Section 308 of the Clean Water Act need not be cited, the follow-
ing information should be requested:
* Information on the nature and extent of the violation;
* Environmental effects;
• Action taken to mitigate the discharge and to meet the construction
schedule;
• The monitoring schedule of the facility; and
• Any other information that may be pertinent to achieving
compliance.
EPA does not have to establish a violation prior to making an information
request; however, the request may help in determining Agency action once a
violation is confirmed. EPA also has the option of sending a formal
Section 308 letter to the permittee, which notes that a failure to respond
may result in a civil enforcement action. (Chapter Six discusses formal
Section 308 letters used to supplement administrative enforcement actions.)
CWA Compliance/Enforcement 5-5 Guidance Manual 1985
-------
Chapter Five Level of Action Policy
Meetings
The permittee and EPA may clarify the permittee's legal responsibilities
and agree on corrective action through an informal meeting. In setting up
the meeting, EPA must clarify that it will be informal and may not preclude
formal enforcement proceedings.
Technical staff members of both EPA and the permittee typically attend
these meetings. However, the EPA personnel must determine prior to the
meeting whether the permittee is planning to include legal counsel. If so,
the Regional Counsel's Office should provide an attorney to represent the.
Agency at the meeting. A Regional Counsel's Office representative should
also attend all meetings that may affect future or ongoing enforcement
cases. EPA personnel should summarize all discussions and any decisions
made. These summaries will be made a part of the file.
Compliance Inspections
As discussed in Chapter three, inspections are an integral part of the
Agency's NPDES compliance/enforcement program. EPA conducts NPDES
inspections with the understanding that the information obtained may be
used as evidence in enforcement actions. In addition to conducting routine
inspections to verify compliance with NPDES permit conditions and effluent
limitations and to verify the reliability of self-monitoring data, EPA may
conduct follow-up inspections to provide support for enforcement actions.
The deficiency notice addresses those permit violations associated with
self-monitoring and recordkeeping activities. An inspector may issue a
deficiency notice to a permittee immediately following the compliance
inspection for self-monitoring deficiencies. Deficiency notices are
discussed in greater detail in Chapter Three.
CWA Compliance/Enforcement 5-6 Guidance Manual 1985
-------
Chapter Five
3 Exhibits
This section contains the following exhibits:
Exhibit 5-1: Enforcement Response Table
Exhibit 5-2: Model Record of Communication
Exhibit 5-3: Model General Informal Warning Letter
Exhibit 5-4: Model Overdue Discharge Monitoring Report (DMR) Letter
Exhibit 5-5: Model Deficiencies in Completing the DMR Letter
Exhibit 5-6: Model Violation of Effluent Limitations and Failure
To File Reports Letter
CWA Compliance/Enforcement
5-7
Guidance Manual 1985
-------
Chapter Five Exhibits
CWA Compliance/Enforcement5-8Guidance Manual 1985
-------
Chapter Five
Exhibit 5-1
Enforcement Response Table
Noncompliance
Exceeding Final Limits
Exceeding Final Limits
Exceeding Final Limits
Exceeding Final Limits
Exceeding Final Limits
Exceeding Interim Limits
(for discharge under
permittee* s control)
Exceeding Interim Limits
(for discharge under
permittee's control)
Exceeding Interim Limits
(uncontrolled)
Exceeding Interim Limits
(uncontrolled)
EFFLUENT LIMITS
Circumstances
Infrequent or isolated
minor violation
Infrequent or isolated
major violations of
single effluent limit
.Frequent violations of
effluent limits (i.e.,
those which occur more
often than once in any
four consecutive
quarters)
Within Technical
leview Criteria and
time frame for its use
Varied frequency or
continuation
Results in known
environmental damage
Without known damage
No harmful effects
known
With substantial
environmental damage
Response
Warning letter
Warning letter,
administrative
order, or judicial
action
Administrative
order or judicial
action
Warning letter or
request explanation
Warning letter or
administrative order
Administrative order
or judicial action
Warning letter,
administrative order
or judicial action
"No action" letter
Administrative order
or judicial action
CWA Compliance/Enforcement
5-9
Guidance Manual 1985
-------
Chapter Five
Exhibit 5-1
Permit
Compliance
Failure to report to
EPA (routine reports,
discharge monitoring
reports)
Failure to report to
EPA (one-time reports)
Failure to notify EPA
(noncompliance with
schedule requirement)
Failure to report or
notify EPA
REPORTING
Circumstances
Isolated or infrequent
Isolated or infrequent
Isolated or infrequent
Failure to notify EPA
of effluent limit
violation
Failure to notify EPA
of effluent limit
violation
Failure to notify EPA
of effluent limit
violation
Minor reporting
deficiencies
Minor reporting
deficiencies
Permittee does not re-
spond to letters, or
does not follow through
on verbal or written
agreements, or commits
frequent violations
Known environmental
damage results
Isolated or infrequent;
no known effects
Continuing
Isolated or infrequent
Continuing
Response
Phone call* or
warning letter
that requires
reports to be sub- '
mitted immediately
Warning letter
that requires
reports to be sub-
mitted immediately
Phone call* or
warning letter
that requires re-
ports to be submit-
ted immediately
Administrative order
or judicial action
if nonresponse
continues
Administrative order
or judicial action
Warning letter
Second warning
letter or admini-
strative order
Warning letter that
requires corrections
to be made on next
submittal
Administrative
order, if continued
* Phone calls should be followed up with warning letters if reports are
not received within agreed-upon time frame.
CWA Compliance/Enforcement
5-10
Guidance Manual 1985
-------
Chapter Five
Exhibit 5-1
Major or gross
reporting
deficiencies
Major or gross
reporting
deficiencies
Isolated or infrequent
Continuing
Warning letter that
requires correc-
tions to be made on
next submlttal
Administrative order
COMPLIANCE SCHEDULES (Construction Phasesor Planning)
Send warning letter
Missed interim date
Missed interim date
Missed interim date
Missed final date
Missed final date
Missed final date
Will not cause late
final date or other
interim dates
Will result in other
missed interim dates
and/or late final date
Will result in other
missed dates (no
good or valid cause)
Compliance likely
within 90 days
Violation for good
or valid cause
(strike, act of God,
etc.)
Compliance is 90 days
or more outstanding;
failure or refusal to
comply without good
or valid cause
Send "no action"
letter, warning
letter, or adminis-
trative order
Send warning letter
(first time only),
administrative
order, or judicial
action
Send warning
letter; follow up
to verify status
Contact permittee,
require documenta-
tion of good or
valid cause; issue
administrative
order if beginning
construction date
was missed or other
delays in construc-
tion occurred with-
out good or valid
cause
Issue administrative
order or take judi-
cial action
CWA Compliance/Enforcement
5-11
Guidance Manual 1985
-------
Chapter Five Exhibit 5-1
Major or gross Continuing Issue administra-
deficiencies tive order or take
judicial action
Failure to install Continuing Issue adminlstra-
monitoring equipment tive order to
require monitoring
(using outside
contracts, if
necessary) and
install equipment
leporting false Take judicial
Information action
CHA Compliance/Enforcement 5-L2 Guidance Manual 1985
-------
Chapter Five
EsMbit 5-2
Record of Communication
RECORD OF
COMMUNICATION
TO
BFDES File Ho. .
QPHQNfCAU. QoiSCLTSSIOf. QUELOTHII"
DOTMiH|»fCIPV|
QCONFCRENCI
{Rfcord of iwm cli€cMd iliavO
FROM DATE
October
TIME
2:15 P.
26, 198S
H,
SUBJECT
Permitte ABC — Receipt of DHRs
On October 26, 1982, I called
(name)
of Permittee ABC, and
requested information on the lack of self monitoring reports.
I obtained no response, the switchboard operator, after requesting
name and company, stated Mr. Doe was "out" as uaa his plant operator. I
requested _^^_______ to call back. This la the third such unsuccessful
attempt to reach'a company representative since (date)
CO*CI.U
-------
Chapter Five Exhibit 5-3
Model General Informal Warning Letter
RE: NPDES Permit 0
Addressee:
This letter is to notify you that there has been a violation of
permit requirements; specifically , of
permit #00000000001. A response on behalf of the owner/operator of XYZ
facility is requested.
According to the terms of the above-cited permit, the XYZ facility is
required to meet:
1. Effluent limits #1 through #6.
2. Monitoring requirements for sections 1 to 5 of the permit.
3. Compliance schedule, dated December 6, 1979, on construction of
treatment facilities.
My review of the available material indicates these requirements have
not been met with regard to:
1. Effluent limits #2 and #4 for May, June, and July 1982.
2. Monitoring requirements B2 for May and June 1982.
3. Compliance schedule, page 4, June 1982, milestone.
This notice is intended to ensure that you are provided adequate
notice of violations and requirements of the permit. We request that
you take immediate steps to correct the above violations and return
compliance by (date) .
[Informal meeting] If an informational meeting would be of value in
understanding legal requirements under the Clean Water Act and the
subject permit, please notify the Water Compliance Section at ( )
. A meeting will be scheduled as soon as possible.
[Information request] Based on our review of your permit and informa-
tion available, we request that you respond to EPA, Region IX on the
following questions:
1. Have steps been taken to require plans and specifications for
installation of equipment A and B?
2. Has the facility installed self-monitoring equipment C for the
plant?
Sincerely,
Branch Chief (Water Management Division)
cc: State Agency
CWA Compliance/Enforcement 5-14 Guidance Manual 1985
-------
Chapter Five Exhibit 5-4
Model Overdue Discharge Monitoring Report (DMR) Letter
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Subject; Delinquent Discharge Monitoring Report (DMR)
NPDES Permit Mo.:
Dear :
Your facility has been issued a National or State Pollutant Discharge
Elimination System (N/SPDES) permit, which authorizes you to discharge
wastewater to the surface waters of the United States and requires you
to perform certain discharge monitoring tests and report the results to
this office. We have not received your last required report covering
the three-month period ending and due during the
following month.
You may have overlooked our previous notification(s) concerning this
matter. Whatever the reason, we are concerned about the continuing
nature of your failure to comply. Consequently, you are required to
submit both the overdue report and an explanation for your
noncompllance within 14 days of receipt of this letter. Your
explanation must include a plan to ensure that all future DMRs are
submitted in a timely manner.
We know that you understand the importance of complying with the terms
of your permit; nevertheless, we must emphasize that failure to comply
with the DMR requirement can result in referral of this matter to our
Regional Counsel for further action.
If you have any questions regarding these requirements, please write to
Chief Permits Administration Branch at the above address or call
at .
Thank you for your cooperation in this matter.
Sincerely,
Chief
Water Permits and Compliance Branch
Water Management Division
cc: State Agency
CWA Compliance/Enforcement 5-15 Guidance Manual 1985
-------
Chapter Five
Exhibit 5-5
Model Deficiencies in Completing the DMR Letter
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Subject:
Dear
Deficient Discharge Monitoring Report
Permit No. PR
Your facility has been issued a National or State Pollutant Discharge
Elimination System (N/SPDES) permit, which authorizes you to discharge
wastewater to the surface waters of the United States and requires you
to meet certain conditions. Accordingly, you have submitted the
required Discharge Monitoring Report (DM1) pursuant to 40 C.F.R.
§122.41 for the monitoring period ending .
Our review of your DMR has uncovered certain deficiencies (see attach-
ment). Please send a revised DMR that corrects these deficiencies.
Ihe correct monitoring requirements must be complied with when
completing your next DMR. If you have any questions concerning this
letter, or if you cannot comply with any of your self-monitoring
requirements, please contact the Permits Administration Branch, at the
above address or call .
Thank you for your cooperation in this matter.
Sincerely yours,
Chief
Water Permits and Compliance Branch
Water Management Division
cc: State Agency
CWA Compliance/Enforcement
5-16
Guidance Manual 1985
-------
Chapter Five Exhibit 5-6
Model Violation of Effluent Limitations and Failure
To File Reports Letter
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Subject: Apparent Violation of Effluent Limitations
NPDES Permit No.
Dear :
Your facility has been issued a National or State Pollutant Discharge
Elimination System (N/SPDES) permit, which authorizes you to discharge
wastewater to the surface waters of the United States and requires you
to meet certain conditions. Accordingly, you have submitted the
required Discharge Monitoring Report (DMR) under 40 C.F.R. §122.41 for
the reporting period ending . Our review of the
report reveals that the discharge may not comply with certain effluent
limitations specified in your permit (see attachment).
According to the conditions of your permit you are also required to
provide this office and the appropriate state Agency with information
concerning any apparent noncompliance that occurs under 40 C.F.R.
§122.41. Each notification must include the following:
a. A description of the noncompliance and its cause;
b. The duration, and exact dates and times;
c. The impact upon the receiving waters;
d. The steps taken or planned to be taken to reduce or eliminate the
noncompliance;
e. The steps already taken, planned, or currently being taken to
prevent recurrence of the condition and to ensure future compliance
with permit limitations.
We have not received this notification from you. The noncompliance
notification must be sent to the Chief of the Permits Administration
Branch within 14 days of the date of this letter. We know you under-
stand the importance of complying with the terms of your permit;
nevertheless, we must emphasize that failure to comply with effluent
limitations and noncompliance reporting can result in referral of this
matter to our Regional Counsel for further action.
CWA Compliance/Enforcement 5-17 Guidance Manual 1985
-------
Chapter Five Exhibit 5-6
If you have any questions regarding this request, please write to the
Permits Administration Branch, at the above address or call
at
Sincerely yours,
Chief
Water Permits and Compliance Branch
Water Management Division
cc: State Agency
CWA Compliance/Enforcement 5-18 Guidance Manual 1985
-------
Chapter Six
Administrative Enforcement
Chapter Contents
Page
1 Introduction
6-1
2 Administrative Enforcement
Section 308 Letters
Notices of Violation
Administrative Orders
Contractor Listing
NPDES Permit Actions
6-3
6-3
6-5
6-7
6-11
6-12
3 Exhibits
6-1 s Model Section 308 Letter-
Request for Municipal Compliance Plan
6-2: Model Section 308 Letter—
Request for Composite Correction Plan
6-3: Sample Section 308 Letter—
Industrial Discharger
6-4: Model Notice of Violation
6-5; Recommended Format for Clean Water Act
Section 309 Administrative Orders
6-6: Model Municipal Administrative Orders
6-7: Model Notice of Deficiency
6-15
6-17
6-24
6-32
6-40
6-43
6-68
6-84
CWA Compliance/Enforcement
6-i
Guidance Manual 1985
-------
Chapter Six Contents
CWA Compliance/Enforcement 6-ii Guidance Manual 1985
-------
Chapter Six
1 Introduction
This chapter outlines the types of administrative enforcement actions that
are available once the Agency has determined that an administrative
enforcement response Is the appropriate action for a detected violation.
This chapter discusses the following administrative actions:
* Request for Information [Section 308(a)]
* Notice of Violation {Section 309(a)(l)]
* Administrative Order [Section 309(a)(3>]
* Contractor Listing [Section 508]
• Permit Actions [Section 402]
Section 309 of the CWA provides EPA with administrative enforcement
mechanisms. An administrative order Is frequently the most expeditious
approach to compliance; however, it cannot be used to resolve every type of
violation. Where further information regarding the cause of a violation or
where a corrective measure is needed to reach compliance, It may be more
appropriate to first use a Section 308 letter. Generally, the Agency pre-
fers the administrative order as the Initial formal approach for resolving
a compliance problem, thus avoiding the resource commitments of
litigation.
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Chapter Six Introduction
CJWA Coopl lane e/lnf or cement 6-2 Guidance Manual 1985
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Chapter Six
2 Administrative Enforcement
Section 308 Letters
Purpose and Authority
Section 308 of the CWA authorizes the Administrator to require the owner or
operator of any point source or indirect discharger to provide whatever
information the Administrator may reasonably require, Including reports,
sampling, and monitoring. A Section 308 letter is an Agency request for
Information and can constitute the first step in enforcement against a
violating facility. Note, however, that a Section 308 letter, Itself, can
only request information or testing; It cannot be used to require compli-
ance with other CWA sections or with permit requirements. Thus, the
Section 308 letter serves to complement formal administrative enforcement.
A Section 308 request either may be sent by itself or may accompany an
administrative order. For example, where EPA has identified violations at
a publicly owned treatment works (POTW), it may require submission of a
composite correction plan. For violating industrial facilities, a Section
308 request can accompany a notice of violation or an administrative order.
IPA's broad information-gathering authority withstood several constitu-
tional challenges in United States v. Tivian [589 F. 2d 49 (1st Cir. 1978)
cert, denied 442 U.S. 942 (1979)]. In that case, the court held that:
« Authorizing 1PA to require the owner or operator of any emission or
point source to provide EPA wlch such Information as the Agency may
reasonably require to carry out Its responsibilities under the Act
does not violate the Fourth Amendment;
» Requiring a corporation to supply data does not constitute invol-
untary servitude, which Is prohibited by the Thirteenth Amendment;
and
« Taking records was not without procedural due process that is
required by the Fifth Amendment.
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Chapter Six Administrative Enforcement
Failure to respond to a Section 308 Information request Is grounds for
Issuance of an administrative order or a civil judicial action under
Section 309.
A Section 308 letter Is not a prerequisite to Issuance of an administrative
order or a civil judicial or criminal action. However, In many Instances
where violations are suspected but further data Is needed, EPA may request
detailed Information on the facility and its effluent prior to Issuing an
administrative order. For example, EPA may require a permittee to submit
data to verify effluent violations.
It may also be appropriate to use a Section 308 letter rather than an
administrative order, where EPA wants to correct noncompllance problems but
needs further information from the facility to determine what constitutes
an expeditious schedule for compliance. This Is often the case when a
Section 308 letter is sent to a municipality.
Contents of a Section 308 Letter
A Section 308 letter should contain the following elements:
* Name of discharging facility and permit number, If any;
• Citation to the Agency's legal authority (Section 308);
• Specific description of the Information that EPA is requiring the
recipient to submit;
» Notification that failure to respond may result In a Section 309
civil action;
» Deadline for compliance with information request;
• Notification of certification requirement pursuant to 40 C.F.R.
$122.22
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Chapter Six Administrative Enforcement
• Specific findings of violations and documents where such informa-
tlon is contained; and
* Request for information from the facility to assist EPA In setting
up a compliance schedule, including a specific date certain for
achieving final compliance (optional). (This may include a list of
questions on the treatment capabilities of the facility or on a
more formal plan, such as a municipal compliance plan.)
The Regional Administrator or the director of the Regional Water Management
Division, depending upon Regional Office practice, issues Section 308
letters after consultation with the Office of Regional Counsel. The letter
is sent by certified mail, return receipt requested, or by personal service
(although the latter method is not the Agency's usual practice). Usually,
a Section 308 letter is issued to a corporation, so it is Important that
the letter is addressed to the appropriate company official. That official
Is typically the president of the company, although sometimes the appro-
priate official may be a plant manager or an attorney.
Exhibits 6-1 and 6-2 contain model Section 308 letters that are addressed
to municipalities to implement the National Municipal Policy. Exhibit 6-1
contains a model Section 308 letter requesting preparation of a municipal
compliance plan, and Inhibit 6-2 contains a model Section 308 letter
requesting preparation of a composite correction plan. These two exhibits
are contained in the August 20, 1984, EPA memorandum entitled "Example Noti-
Judlcial Enforcement Documents for Obtaining Compliance with the National
Municipal Policy." Exhibit 6-3 contains a sample Section 308 letter
requesting information from an industrial discharger.
Notices of Violation
Purpose and Authority
A notice of violation (NOV) is a letter Issued by EPA pursuant to Section
309(a) of the Act that notifies the state that a violation of the CWA has
been detected. The violating facility also receives a copy of the NOV.
Section 309(a)(l) states that, If EPA finds a violation of a permit issued
by an approved state program, the Agency shall either bring a civil action,
issue an administrative order, or Issue an NOV.-
Although an NOV is not a prerequisite to federal enforcement (see U.S. v.
City of Colorado Springs. 455 F. Supp. 1365 (D. Colo. 1978)J, an NOV can be
a useful enforcement tool.
Notice to the state of the Issuance of an NOV provides the state with an
opportunity to take enforcement action. EPA is not required to give the
state such notice; however, it typically does so as a matter of policy
pursuant to the "State/EPA Enforcement Policy Framework," Issued on July
26, 1984. Note that NOVs only apply to NPOES-approved states although EPA
may choose to issue NOV-like letters for violations In states that do not
CWA Compliance/Enforcement 6-5 Guidance Manual 1985
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Chapter Six Administrative Enforcement
have NPDES-approved programs. In some cases, a state/EPA Memorandum of
Agreement may require state notification prior to Issuing an NOV. Such
notification may prompt the state to commence enforcement action. Accord-
Ing to the Policy Framework, EPA may take action where the state fails to
take timely and appropriate enforcement action.
The NOV also serves several practical purposes in the compliance and
enforcement program. An NOV may serve to draw the owner's attention to
violations with which he or she may be unaware and encourage the owner to
rectify the problem. In other cases, an owner may want to comply with the
law but does not know what the law requires. An NOV can serve to clarify
the legal obligations Imposed by the Act.
Contents of an NOV
The CWA does not set forth any specific, requirements for the contents of an
NOV. Exhibit 6-4 contains a model NOV and cover letter. The Agency has
followed the practice of Including the following elements in most NOVs:
• Specific reference to the legal requirement that has been violated;
• Specific reference to the point source or Industrial user In viola-
tion of the standard;
» The factual basis for the NOV, including the date, time, and
evidence of the violation;
• An explanation of further administrative or judicial action that
may be taken If the state does not begin enforcement action or the
source does not comply:
Example: "Section 309(a) of the Clean Water Act permits SPA to
Issue an administrative order requiring compliance with
applicable standards. In addition, Section 309 autho-
rizes EPA to Initiate a civil action in U.S. district
court for Injunctive relief or to recover a $10,000 civil
penalty per day of violation, or both, If the Administra-
tor finds that the violation has continued beyond the
30th day after this notification. Moreover, Section
309(c) authorizes the Initiation of criminal prosecution
for willful or negligent violations."
* An Indication that (1) the source may confer with EPA officials
concerning the violations within 30 days of the notification; (2)
the source Is entitled to the presence of an attorney If he or she
so desires; and (3) a record of any such conference will be made
(optional);
« The name, address, and telephone number of the EPA official to be
contacted concerning the scheduling of a conference; and
• The signature of the appropriate EPA official.
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Chapter Six Administrative Enforcement
In addition, the NOV may Include a requirement under Section 308 for the
source to report within a specified time on actions it has taken to address
the noticed violations.
Issuing the NOV
Like Section 308 letters, NOVs are Issued under the signature of the direc-
tor of the regional water management division after consultation with the
Office of Regional Counsel or by the Regional Administrator, depending upon
Regional Office practice. The NOV and a form cover letter is addressed to
the state agency and an appropriate company official and sent by certified
mail or by personal service.
Administrative Orders
Purpose and Authority
Sections 309(a)(l) and 309(a)(3) of the CWA authorize the Administrator to
issue administrative compliance orders for violations of the following CWA
provisions:
• Section 301 (effluent limitations and prohibitions against
discharges not authorized by a permit);
• Section 302 (water quality-related effluent limitations);
• Section 306 (new source performance standards);
• Section 307 (toxic and pretreatment effluent standards);
• Section 308 (information requests and inspections);
• Section 318 (aquaculture); and
• Section 405 (sewage sludge disposal).
EPA may issue administrative orders for violations of any conditions or
limitations that are contained in a permit Issued under Section 402 or In a
state permit Issued under Section 404 that implement any of these listed
sections. An order that Is Issued for a violation of Section 308 does not
take effect until the alleged violator is provided an opportunity to confer
with the Administrator. [Se£ Section 309(a)(4).] Note that Section 309
does not apply to grant agreements and schedules in grants.
The Administrator has delegated issuance of administrative orders to the
Regional Administrators, who, in most Regions, have In turn delegated
issuance to the regional water management division directors.
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Chapter Six Administrative Enforcement
On April 18, 1975, EPA issued "Guidelines for the Issuance of Administra-
tive Compliance Orders Pursuant to Title III, Sections 309(a)(3) and
309(a)(4) of the Federal Water Pollution Control Act, as amended [33
U.S.C. §§1319(a)(3) and 1319(a)(4)]." These guidelines are contained in
the Water Compliance/Enforcement Policy Compendium. The guidelines were
based on the 1972 Federal Water Pollution Control Act Amendments.
On July 30, 1985, EPA issued "Recommended Format for Clean Water Act
Section 309 Administrative Orders," which replaces the April 18, 1975
guidelines. The new guidance details specific statutory requirements and
options and suggestions on format for administrative orders. The new
guidance discourages use of successive administrative orders for the same
violation, clarifies legal authority (e.g., Sections 308 and 309) as the
basis for order requirements, clarifies the scope of order requirements,
identifies sanctions for order violations and sets out sample provisions.
The recommended format guidance is contained in Exhibit 6-5.
Under the 1972 Amendments, administrative orders had to require compliance
with the terms of the permit or other applicable requirements within 30
days of issuance. The April 18, 1975 guidance reflected this requirement.
In the 1977 Amendments to the Act, Congress amended Section 309(a)(5) to
state that an administrative order that is issued for a violation of an
interim compliance schedule must specify a time for compliance not to
exceed 30 days. However, regarding compliance with final deadlines, the
Administrator may specify a time that he or she determines to be reasonable
(taking into account the seriousness of the violation) and any good faith
efforts on the part of the violator to comply with applicable
requirements. This requirement is reflected in the July 30, 1985 guidance.
The courts have addressed the issue of the Administrator's duty to issue
compliance orders. In the only court of appeals decision, Sierra Club v.
Train [557 F. 2d 485 (5th Cir. 1977)], the court held that the issuance of
an administrative compliance order under Section 309(a)(3) is discre-
tionary. However, in the majority of district court cases, including South
Carolina Wildlife Federation v. Alexander [457 F. Supp. 118, 134 (D. S.C.
1978)], the court held that Section 309(a)(3) imposes a nondiscretionary
duty on the Administrator to issue compliance orders once he or she becomes
aware of a violation of the Act. Nonetheless, the court did not believe
that the Administrator must bring enforcement proceedings in the courts by
either a civil or criminal action. This is consistent with the Clean Air
Act interpretation of EPA's duty. [See, e.g., Council of Commuter
Organizations v. M.T.A., 683 F. 2d 663, 671-672 (2d Cir. 1982).]
Issuance of an administrative order is not a prerequisite to instituting a
civil judicial action. In addition, compliance with an administrative
order does not preclude civil judicial action that seeks penalties for the
underlying violation. [See, e.g., United States v. Earth Sciences, Inc.,
599 F. 2d 368, 375-76 (10th Cir. 1979).] Nonetheless, mitigation and good
faith efforts to achieve compliance may be equitable arguments in deter-
mining the size of the penalty.
Finally, an administrative order may not be issued for past violations that
have been corrected. The violation (or the condition giving rise to viola-
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Chapter Six Administrative Enforcement
tlons) oust, therefore, be current based on information available at the
time of the order. Some NPDES permit violations occur on an intermittent
basis (e.g., once every other month). The Region may issue an administra-
tive order for a violation of & permit condition that is the cause of
intermittent permit effluent limitation violations (such as an operation
and maintenance requirement or failure to adhere to best management
practices).
Contents of an Administrative Order
The administrative order must state, with reasonable specificity, the
nature of the violation [i.e., the Region must make a factual finding that
there has been a violation of one of the above-specified sections, typical-
ly Section 301(a)]. To determine the compliance date, the Region must also
make a finding in the administrative order on what constitutes a reasonable
time to achieve compliance and tailor the administrative order to the
Section 309(a)(5) requirements. The order must also Include an explicit
order based on the factual findings of the violation and that Imposes
requirements related as closely as possible to achieving and maintaining
compliance by a certain date.
While an administrative order must specify compliance with the relevant
statutory section, such as Section 301, it may not impose the particular
treatment technology that a permittee must use to reach compliance.
Specifying such actions is not consistent with the CWA's intent to allow
the permittee to achieve statutory compliance deadlines in a manner chosen
by the permittee. (Similarly, an NPDES permit may not require a specific
treatment to achieve compliance, but may only include the statutory compli-
ance deadlines and appropriate effluent limits. This does not preclude
imposition of requirements such as best management practices.)
The administrative order may contain, however, a Section 308 information
request (which references Section 308 as Its authority), as long as it is
reasonably necessary to determine the status of the violator and to correct
the violation (e.g., requiring sampling and monitoring at weekly Inter-
vals). Of course, the Region may still use Section 308 authority to elicit
information in a nonenforcement context.
Note that where EPA Issues an administrative order for failure to submit
information pursuant to Section 308, the order may not take effect under
Section 309(a)(4) until the person to whom it is Issued has had an oppor-
tunity to confer with the Administrator concerning the alleged violation.
Thus, in issuing such an order, the Region should Include an opportunity
for the violator to confer with EPA.
Administrative Orders for Municipalities Violating Secondary Treatment
Requirements
The EPA memorandum entitled "Example Non-Judicial Enforcement Documents for
Obtaining Compliance With National Municipal Policy" contains model admini-
strative orders for use against discharge violations by publicly owned
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Chapter Six Administrative Enforcement
treatment works (POTW). The models conform to minimum federal requirements
for obtaining compliance by unfunded municipalities.
Under EPA policy, noncomplying municipalities that receive a Section 308
letter or an administrative order are generally grouped into two types—
those requiring a Composite Correction Plan (CCP) and those requiring a
Municipal Compliance Plan (MCP). A municipality that has a constructed
POTW that is not in compliance with its NPDES permit effluent limits may be
required to develop a CCP. A model administrative order requiring a CCP is
contained in Exhibit 6-6. Note that the 30-day compliance requirement for
a nondeadline violation is specifically stated in paragraph (a) of the
order, and the preparation of the CCP where corrective measures are not
completed in paragraph (l)(b) of the order. An affected municipality that
needs to construct a wastewater treatment facility in order to achieve
compliance must develop an MCP. A model administrative order requiring an
MCP is also contained in Exhibit 6-6.
Administrative Orders for New Sources
New source dischargers of water pollutants must have in operation and must
start up all pollution control equipment that is required to meet the
conditions of its permit before beginning to discharge. Within the short-
est feasible time (not to exceed 90 days), the owner or operator must meet
all permit conditions [40 C.F.R. §122.29(d)(4)]. Although new source dis-
chargers may not receive permit compliance schedules, EPA may issue admini-
strative orders to new sources containing such schedules. If the new
source does not meet all permit limitations within 90 days, EPA may bring a
civil injunctive action to cease the discharge until compliance is
achieved; such civil action may include a request for civil penalties.
However, where the new source facility meets its permit conditions as part
of its start-up requirement, and subsequently violates permit limitations
or conditions, EPA may issue an administrative order to address these
violations.
Administrative Orders for Administratively Extended Permits
Where the administrative order involves an expired permit, the order must
explain whether the permit has been administratively extended by operation
of law. Section 558(c) of the Administrative Procedure Act (APA) extends
the duration of a permit term by operation of law where the permittee sub-
mits a timely application for permit reissuance and the Agency does not act
on the permit application. The majority of states that are approved to
administer the NPDES program have similar provisions.
Administrative Penalties
The CWA does not currently authorize administrative penalties for viola-
tions of the NPDES permit or the Section 404 program. Section 311(b)
authorizes the Coast Guard to assess administrative penalties for oil
spills and Section 311(j)(2) authorizes EPA to assess penalties for failure
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Chapter Six Administrative Enforcement
to develop and implement satisfactory spill prevention, containment, and
countermeasure plans. The Coast Guard may also assess penalties for
failure to observe marine sanitation device regulations under Section
312(J).
Contractor Listing
Section 508 of the CWA, Executive Order 11738, and 40 C.F.R. Part 15 autho-
rize EPA, after providing certain administrative procedures, to preclude'
certain facilities from being used in connection with government contracts,
grants, or loans if the facility is violating CWA standards. Contractor
listing can be an effective enforcement tool, and EPA policy calls for
Regional Office enforcement personnel to consider this option to obtain
compliance. (See "Guidance for Implementing EPA's Contractor Listing
Authority," July 18, 1984, contained In the General Enforcement Policy
Compendium, GM-31.)
The contractor listing regulations at 40 C.F.R. §15.20(a)(l) provide that a
listing recommendation (generally from the Regional Administrator to the
Headquarters listing official) may be based on the following!
• Facilities that have given rise to a conviction under Section
309(c) of the CWA.
• Facilities that have given rise to any injunction, order, judgment,
decree, or other form of civil ruling by a federal, state, or local
court issued as a result of noncompliance with clean water stan-
dards, or facilities that have given rise to a conviction in a
state or local court for noncompliance with clean water standards;
and
• Facilities not In compliance with an order under Section 309(a) of
the Act, or that have given rise to the initiation of court action
under Section 309(b) of the Act, or have been subjected to equiva-
lent state or local proceedings to enforce clean water standards.
Prior to listing on the second and third bases above, EPA must determine
that there is evidence of continuing or recurring noncompliance with clean
water standards at the facility [Section 15.20(a)(2)]. EPA has proposed
revisions to the contractor listing regulation (49 Fed. Reg. 30628, July
31, 1984), which among other things provide for automatic listing of a
facility for a criminal conviction.
The recommending party (generally the Regional Office) sends a listing
recommendation to the Agency listing official. Reeotiraendatlons to list may
also come from the Associate Enforcement Counsel for Water Enforcement, a
governor, or any citizen. The respondent must first receive notice of the
listing recommendation and an opportunity to request a listing proceeding,
which Is an informal Agency adjudication, before the respondent can be
listed.
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Chapter Six Administrative Enforcement
EPA should consider listing actions for violating facilities when other
enforcement actions have not stopped the violator from continuing its
pattern of chronic noncompliance. EPA may use listing as an enforcement
response where a facility fails to comply with an administrative or
judicial order. Note that the district courts have upheld EPA's authority
to list facilities of noncriminal violators. [See e.g., U.S. v. Interlake,
Inc., 432 F. Supp. 987 (N.D. 111. 1977).] EPA may also bring a listing
proceeding based on present "recurring or continuing" violations and a
prior judicial or administrative judgment even if the prior action did not
address the present violations. Listing may be appropriate where the value
of the facility's government contracts, grants, and loans exceeds the cost
of compliance. Of course, a listing action is likely to be more effective
if the continuing or recurring noncompliance involves unambiguous and
clearly applicable clean water standards. Facilities may be removed from
the "List" only after they demonstrate that they have achieved and will
maintain compliance.
NPDES Permit Actions
Notices of Deficiency
Pursuant to 40 C.F.R. §124.3(c), EPA must issue notices of deficiency to
owners or operators who have failed to submit complete NPDES applications
(Exhibit 6-7). (These notices should be distinguished from (1) NOVs or
administrative orders under Section 309 and (2) the deficiency notices
discussed in Chapter Three, which are used as a follow-up to compliance
inspections.) A notice of deficiency should be issued when:
• An owner or operator has not submitted an NPDES application by the
due date specified for the application; or
• An owner or operator has submitted a timely but incomplete NPDES
application.
The notice of deficiency should do the following:
• Detail deficiencies in the NPDES application; and
• Require submission of a complete NPDES application by a specific
date, generally within 30 days from the date of issuance of the
notice of deficiency.
In addition, the notice of deficiency should be accompanied by a warning
letter advising the recipient that failure to submit a complete application
by a particular date will result in the initiation of further enforcement
action. In that event, the permit application may be denied under Section
124.3(d) and appropriate enforcement action may be taken under Section 309
of CWA. (If the recipient does not file a timely renewal application, the
existing permit cannot be administratively extended, and the recipient
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Chapter Six Administrative Enforcement
could also be faced with an enforcement action for discharging without a
permit.)
Notices of Intent To Deny a Permit
Once a permit application is complete, the director must decide either to
prepare a draft permit or to deny the permit application. EPA may issue a
notice of intent to deny a permit application under 40 C.F.R. §124.6(b).
Modifications, Revocations and Reissuances, or Terminations of Permits
Under 40 C.F.R. §124.5, an NPDES permit may be modified, revoked and re-
issued, or terminated either at the request of any interested person
(including the permittee) or upon EPA's own initiative. This authority
provides the Agency with additional administrative tools to respond to
cases of noncompliance. Permits may be modified or revoked and reissued
only for the reasons specified in 40 C.F.R. §122.62. Section 309 adminis-
trative orders may not be used to modify permits. Permits may be termi-
nated only for the reasons specified in 40 C.F.R. §122.64.
Note that compliance with a new permit does not preclude a civil judicial
action or penalties for violations of a previous permit. [See Illinois v.
Outboard Marine Corp.. Inc.. 680 F. 2d 473, 480 (7th Cir. 1982).] However,
a request for equitable relief to enjoin future violations of an expired
permit may be moot. See Sierra Club v. Aluminium Co. of America, 585 F.
Supp. 842, 854 (N.D. N.Y. 1984).
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Chapter Six Administrative Enforcement
CWA Compliance/Enforcement6-14Guidance Manual 1985
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Chapter Six
3 Exhibits
This section contains the following exhibits;
Exhibit 6-1:
Exhibit 6-2:
Exhibit 6-3:
Exhibit 6-4:
Exhibit 6-5:
Exhibit 6-6:
Exhibit 6-7:
Model Section 308 Letter—
Request for Municipal Compliance Order
Model Section 308 Letter—
Request for Composite Correction Flan
Sample Section 308 Letter—Industrial Discharger
Model Notice of Violation
Recommended Format for Clean Water Act
Section 309 Administrative Orders
Model Municipal Administrative Orders
Model Notice of Deficiency
CWA Compliance/Enforcement
6-15
Guidance Manual 1985
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Chapter Six Exhibits
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Chapter Six Exhibit 6-1
Model Section 308 Letter—Request for Municipal Compliance Plan
Honorable
Title Certified: RRR, Restricted Delivery
Address
RE: Request for Information
EPA ID No.
I am writing this letter requesting information from you in your
official capacity as a municipal official. This letter is written
under the authority of Section 308 of the Clean Water Act (the Act)
and is the Initial step in enforcement activities necessary to bring
[ a ] into compliance with the Act as quickly as possible. A
response to this letter on behalf of [ a ] is required.
Owners of publicly owned treatment works were required, under
Section 301(b) of the Act, to construct treatment works and to meet
effluent limitations representing secondary treatment [and water qual-
ity requirements]b by the July 1, 1977 statutory deadline [unless time
for compliance is extended by the issuance of and compliance with a
permit authorized under Section 301(1) of the Act. The maximum exten-
sion allowed under Section 301(1) is until July 1, 1988]c.
My review of available materials indicates that [ a ] has
been issued National Pollutant Discharge Elimination System (NPDES)
Permit No. , expiring on (date) . for a [ d ]
wastewater treatment works at (location) . The currently appli-
cable effluent limitations in that permit reflect secondary treat-
ment [and water quality] t> requirements. [You have not been issued a
permit extending the time for compliance under Section 301(1).je
Based on my review of discharge monitoring reports, Regional Construc-
tion Grants records and other records, I have determined that [ a ]
is failing to meet effluent limitations contained in the permit and
that one of the reasons for that failure is the absence of necessary
treatment works. [Cite specific findings and documents to substan
tiate your claim.] The municipality is, therefore, in violation of
the deadline for treatment under Section 301(b) of the Act and in
violation of the effluent limitations of its NPDES permit.
A schedule of compliance for necessary construction (including, if
appropriate, associated upgrading and expansion) and for compliance
with effluent limitations must be established. [In addition, appro-
priate interim effluent limitations mist be set for the period prior
to attainment of final effluent limitations.]f In order to assist
this Agency in setting that schedule, the municipality is required to
Note: Items in bold type indicate optional material. The letters
in bold type refer to notes that are listed on the last page of this
exhibit.
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Chapter Six Exhibit 6-1
prepare a Municipal Compliance Plan (MCP) as described in Enclosure 1,
and answer the other questions in Enclosure 1, including appendices.
These questions are to be answered based on the assumption that EPA
Construction Grants will not be available to fund any portion of the
design or construction of the required wastewater treatment facility.
After considering the information you submit, 1 will issue an Adminis-
trative Order (or request the commencement of a court action) requir-
t a 1 to take appropriate and timely action.
The failure to respond to this request may result in the taking
of legal action under Section 309 of the Act. The municipality
remains responsible for compliance with the statutory requirements of
the Act and with the requirements of its permit. [In addition, the
municipality mist comply with any currently effective order Issued by
IPA or the State of _ .]S
The municipality's response to this inquiry is required within
_____ days after receipt of this request. The response must be signed
by an authorized person who Is a principal executive officer or a rank-
ing official of [ a ]« [ h ] The responses must be certified
as to accuracy. The certification must substantially conform to one of
the forms contained In Attachment B. The response is to be mailed or
delivered to (address).
Please affix the ID notation, shown above, on the cover page of
the response, and, If appropriate, on the cover page of any material
claimed to be treated as confidential.
The notice of deficiency should do the following:
[Information reporting required of permittee is not subject to
the requirements of the Paperwork Reduction Act of I960.]1
If you have any questions concerning this matter, please contact
__________ of my office at (address and telephone number).
Very truly yours,
(Authorized official)
(Title)
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Chapter Six Exhibit 6-1
Enclosure 1
Information To Be Furnished on Behalf of Municipality*
The following information is to be furnished on the assumption that no
portion of the money that will be necessary for design, construction,
or operation of required treatment works will be available in the form
of Construction Grants under Title II of the Clean Water Act, unless
permittee has been awarded such grant or has been preliminarily certi-
fied by the state for the award of such grant on or before September
30, 1985.
1. Prepare (obtain approval from governing body of the permittee)
and deliver a copy of a Municipal Compliance Plan (MCP) and proof
of approval. The MCP must show how the permittee proposes to
attain continuing compliance with the effluent limitations in its
NPDES permit and the secondary treatment [and water quality]-]
requirements of Section 301(b) of the Clean Water Act at the
earliest possible time. The MCP shall minimally contain the
following elements:
* The proposed capacity and effective removal capability of the
new or upgraded facility and description of the treatment (and
conveyance) technology and/or other activities proposed to be
undertaken in order to attain compliance, including list and
capacity of principal components.
t The cost, in 198_ dollars, of construction and other activi-
ties required for attaining compliance.
• A statement of sources and methods of financing the new or
upgraded facility.
t The annual cost in 198_ dollars for operating and maintaining
the completed facility and for replacing equipment or appur-
tenances that are portions of the completed facility and that
have a useful life shorter than that of the facility (OM&R).
• The financial mechanisms (sources of revenue) to be used to
fund repayment of those portions of financing that are required
to be repaid and to finance OM&R.
• A proposed, fixed-date compliance schedule showing proposed
dates of completion of improvements, attainment of continuing
compliance, completion of financing-required activities, and
other milestones appropriate to attaining compliance. (See
Attachment for suggested format.)
If any portion of the material furnished ia claimed as business
confidential, that claim must be made at the same time the infor-
mation is furnished. The procedures for making such a claim and
EPA's handling of the claims appear In 40 C.F.R. Part 2, Subpart
B. A copy of these regulations will be furnished on request.
CWA Compliance/Enforcement 6-19 Guidance Manual 1985
-------
Chapter Six Exhibit 6-1
[The phrase "other milestones" includes all proposed interim
activities that will ensure reduction in the size of effluent
violations pending attainment of compliance. Examples of such
activities, some of which may not directly relate to final
attainment, are:
— Improved operation and maintenance of existing system;
— Expedited implementation of approved pretreatment program;
— Replacement of equipment;
• Improved enforcement of existing sewer use ordinance;
- Expedited completion of upgrade or secondary (where
advance waste treatment Is required);
[—• Minor structural modifications or rehabilitation.]k
Please answer Question 2 only if the proposed date of completion
under a final date-compliance schedule occurs after [July 1, 1988]!
2. (a) Complete the attached [ m ].
(b) State in detail any facts or circumstances, other than those
disclosed in the Municipal Compliance Plan, that will prevent
I a ] from completing construction of secondary treatment
wastewater facilities [and facilities to meet water quality-
baaed limitations^ and having those facilities fully opera-
tional and in compliance with permit effluent limits hy [July
1, 1988]1-.
All municipal officials or their representatives shall respond to
the following:
3. (a) Do you have any reason to helieve that your treatment facility
is currently incapable of meeting the effluent limitations
listed in Attachment A? (Attachment A is a copy of the
interim effluent limitations in effect on June 30, 1977, in
your then current NPDES permit.)
(b) If your answer to Question 3(a) is yes, what do you consider
to be reasonable effluent limitations for the period prior to
attaining secondary treatment [and water quality-based]3
requirements? [Why do you believe the suggested numbers are
reasonable?]0
(c) If the compliance schedule Includes "other milestones" the
performance of which result in the immediate Improvement of
water quality, please state the effluent limitations that the
facility will be capable of meeting upon completion of perfor-
mance of those activities, either by single activity or by
groups of activities to be completed over a period of time not
to exceed 12 months.
CWA Compliance/Enforcement 6-20 Guidance Manual 198S
-------
i
0
ct>
O
ATTACHMENT A
PERMIT LIMITS
6/30/77
A. EFFLUENT LIMITATIONS AMD MONITORING REQUIREMENTS
During the period beginning ___________
discharge from outfall(s) serial nuubm(s)
and lasting through
the permittee Is authorized to
Such discharges shall be United and monitored by Che permittee as specified below:
Effluent
Characteristic
Fla«-m3/Day (MCD)
Discharge
Limitations
kg/daydbs/day)
Other Unita (Specify)
Monthly Ayg Weekly Avg Monthly Avg Weekly Avg
Monitoring
Requlrenenta
Mcaaurement Sample
Frequency Type
The pll shall not be less than
monitored.
standard units nor greater than
standard unlta and shall be
n
(9
There shall be no discharge of floating solids or visible foam In other than trace amounts.
Samples taken In compliance wltli the monitoring requirements specified above aliall he taken at the following
loeatlon(s):
-------
Chapter Six Exhibit 6-1
Attachment B
Form of Certification
A. For use at all plants but most appropriate at large plants (where
signatory has ultimate responsibility but lacks direct control or
specific knowledge of details):
I certify under penalty of law that this document
and all attachments were prepared under my direc-
tion or supervision in accordance with a system
designed to ensure that qualified personnel proper-
ly gather and evaluate the information submitted.
Based on ny Inquiry of the person or persons who
manage the system, or those persons directly
responsible for gathering the information, the
information submitted is, to the best of my know-
ledge and belief, true, accurate, and complete. I
am aware that there are significant penalties for
submitting false Information, including the possi-
bility of fine and imprisonment for knowing viola-
tions.
(40 C.F.R. |l22.22(d); 48 Fed. teg. 39,619,
September 1, 1983)
B. Alternate form that is appropriate for use at smaller plants (where
signatory has direct control over and specific knowledge of details):
I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true
and correct. Executed on (date).
(28 U.S.C. §1746)
CWA Compliance/Enforcement 6-22 Guidance Manual 1985
-------
Chapter Six Exhibit 6-1
Notes
a Name of the municipality/permittee.
b Applies only If the municipality is subject to water quality
standards or other Section 301(b)(l)(C) requirements,
c Include only when appropriate.
d Description of size and type of current treatment (e.g., 3/4 MGD
primary).
e Include this sentence only when appropriate. The sentence may be
modified to show receipt of a Section 301(1) application and
subsequent rejection, or violation of a previously issued Section
301(i) permit. If the permittee received an Enforcement Compliance
Schedule Letter (ECSL) that has been previously voided, recite facts
of issuance, reason for cancellation, and method of receipt by the
permittee of notice of cancellation in lieu of this sentence.
Cancellation cannot be solely by statement of such In this
document•
f Does not apply if there is an existing order setting Interim
effluent limitations, and these limits are not to be changed.
g Applies If there is an outstanding state or IPA order.
h If desired, add reference to representative authority for executing
documents under 40 C.F.R. §122.22(b) when a request is made to a
large city that has decentralized management.
i Optional in EPA- or state-issued letters.
j Include only If treatment beyond secondary is required.
k Preferred, but not required. See Page 10 of Regional and State
Guidance ontheNational Municipal Policy, March 1984.
1 Modify to reflect a date earlier than July 1, 1988, that requester
can reasonably expect all work to be completed, if appropriate.
m To be identified when the new financial analysis form has been
approved. Subject to further expansion or modification at that
time*
n To be Included only If interim limits are to be Included in Final
Administrative Order.
CWA Compliance/Enforcement 6-23 Guidance Manual 1985
-------
Chapter Six Exhibit 6-2
Model Section 308 Letter—Request for Composite Correction Plan
Honorable Certified: 111, Restricted Delivery
title
Address
RE: Request for Information
EPA ID Ho.
I an writing this letter requesting information from you in your "
official capacity as a municipal official. This letter is written
under the authority of Section 308 of the Clean Water Act (the Act)
and Is the initial step in enforcement activities necessary to
bring I a ] into compliance with the Act as soon as possible. A
response to this letter on behalf of [ a ] Is required,
Owners of publicly owned treatment works are required, under
Section 301(b) of the Act, to meet effluent limitations in the
National Pollutant Discharge Elimination System (NPDES) permits issued
for the operation of those treatment works.
My review of available materials Indicates that the municipality
has been Issued NPDSS Permit Mo. , expiring on (date), for
a wastewater treatment plant at (location). [ b ]
The permit requires the attainment of the effluent limitations
listed In Attachment A during the time the permit is In effect.
Discharge Monitoring Reports filed by [a ] for the period beginning
19 and ending 19 show continuing
discharges in excess of permit limitations as follows:
Period/Date Pollutant Permit Limitation Reported Value
The reported values that are outside permit limits are found to be
true. I, therefore, find the municipality in violation of Its NPDES
permit.
JA preliminary diagnostic evaluation of facility effectiveness was
performed by at the request of EPA Region . That
•evaluation, a. copy of which Is attached, as Attachment B Indicates
that the following nay be among the major causes of [ a ]'a
failure to meet the permit Units:
[Specify major findings of evaluation]0
NoteJ Items in bold type indicate optional materials. The
letter in bold type refer to notes that are listed on the last
page of this exhibit.
CWA Compliance/Enforcement 6-24 Guidance Manual 1985
-------
Chapter Six Exhibit 6-2
The preparation by [ a ] of a Composite Correction Plan (the Plan)
as described in Attachment C is necessary in order to determine the
the activities required for bringing its treatment works into compliance
with permit effluent limitations.
Within 45 days of the receipt of this request [ a 1 shall:
(1) Advise me of the name(s) of the persons who will prepare or
review the Plan and provide me with a statement of their
qualifications to prepare or review the Plan, and
(2) Provide me with the dates on which [ a ] will commence and
complete the Plan. If the date for completion of the plan
is after (date) , the municipality shall explain why the
Plan cannot be completed on or before that date.
Unless otherwise advised to the contrary within 30 days of for-
warding the above-requested information, [ a ] shall proceed to
prepare its Composite Correction Plan. It shall provide an Interim
report of progress on (date) and every days thereafter, and
furnish me a copy of the Plan and proof of Its acceptance by the
municipality within 15 days of the municipality's target completion
date of the Plan.
Following receipt of the Plan, I will Issue an Administrative
Order (or request the commencement of court action leading to the
entry of a legally enforceable equivalent order) requiring [ a ] to
take appropriate action that will result in attainment of permit
effluent limitations by the municipality.
The failure to respond to this request may result In EPA taking
legal action under Section 309 of the Act. [ a ] remains
responsible for compliance with the statutory requirements of the Act
land]*1 [,Je with the requirements of Its permit [and with the
requirements of any outstanding orders Issued by the State of ,
SPA% ot the Courts].6
The municipality's responses to this inquiry are required within
the times specified above. Each response must be signed by an autho-
rized person who Is a principal executive officer or a ranking offi-
cial of the municipality. [ f ] The responses must be certified as
to accuracy. The certification must substantially conform to one of
the forms contained In Attachment D. The responses are to be mailed
or delivered to (address)
Please affix the ID notation shown above on the cover page of the
response and, If appropriate, on the cover page of any material
claimed to be treated as confidential.
[Information reporting required of the Municipality Is not
subject to the Paperwork Reduction Act of 1980.]8
CWA Compliance/Enforcement 6-25 Guidance Manual 1985
-------
Chapter Six Exhibit 6-2
If you have any questions concerning this order, contact my
office at (address and telephone number).
Very truly yours,
(Authorized official)
(Capacity)
Enclosures
CWA Compliance/Enforcement 6-26 Guidance Manual 1985
-------
ft)
s
I
ATTACHMENT B
P8RMIT LIMITS
6/30/77
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS
During the period beginning ________^^_
discharge from outfall(s) serial nuaber(s)
and lasting through
Che permittee la authorised Co
Such discharges ahall be United and monitored by the permittee as specified below:
Effluent
Characteristic
Flow-ml/Day (HGU)
Discharge
Limitations
Other Untco (Specify)
Monthly Avg Weekly Avg Monthly Avg Weekly Avg
Mont Coring
EequlrementB
Frequency
Sample
Type
fr
IS
I
The pli shall not be less than
monitored.
standard units nor greacer than
standard unita and ahall be
There shall be no discharge of floating solids or visible foam In other than trace amounts.
Samples taken in compliance with che monitoring requirements a pec IE led obove shall be taken ac Che following
locaclon(e):
00
Wl
-------
Chapter Six Exhibit 6-2
Attachment C
Composite Correction
Plan Instructions
Composite Correction Plan
I. INTRODUCTION
The Composite Correction Plan (CCP) is designed to Identify and
correct those areas in a POTW that are limiting the plant's ability to
comply with its NPDES permit effluent limitations. The CCP is a two-
step process that should provide the most economical method for
improving POTW performance. The approach consists of an evaluation
step and a plan development step.
The evaluation step is a thorough review and analysis of a PQTW's
design capabilities and the associated administration, operation, and
maintenance practices. It is conducted to provide information upon
which to make decisions regarding efforts to improve performance. The
primary objective is to determine whether significant Improvement In
treatment can be achieved without making major capital Improvements.
This objective is accomplished by assessing the capabilities of key
unit processes and by identifying and prioritizing the factors that
limit performance and that can be corrected.
The plan development step uses the results of the evaluation to
develop step-by-step instructions to correct each deficiency identified
in the evaluation. The plan also must include a detailed schedule for
implementation and an associated itemized cost estimate.
II. CONTENT OF COMPOSITE CORRECTION PLAN
The Composite Correction Plan prepared using the above evaluation
shall address all factors that are currently limiting or that could
limit plant operating efficiency and the plant's ability to meet its
permit effluent limitations. The plan shall Include the following
Information:
a. A list of all factors that are limiting the plant's treatment
capability.
b. An estimate of the effluent quality that the treatment plant Is
theoretically capable of achieving if all plant operations are
optimized.
c. Specific, proposed actions to correct each limiting factor,
Including (where appropriate) specific changes to operating,
maintenance, staffing, user charge system, sludge handling,
pretreatment or budgeting practices, or any other change that will
optimize plant performance. Such proposed actions shall Include
capital Improvements to the existing physical plant, where
appropriate.
CWA Compliance/Enforcement 6-28 Guidance Manual 1985
-------
Chapter Six Bshibit 6-2
d. A proposed schedule and cost estimate for implementing each change,
including the date for full permit compliance. This schedule shall
include specific dates by which each change will be Initiated and
completed.
e. A certificate showing the method of financing any capital
improvements or any other portions of the activities listed in
Paragraph C that will not be furnished from current receipts.
CHA Compliance/Enforcement 6-29 Guidance Manual 1985
-------
Chapter Six Eachibit 6-2
Attachment D
Form of Certification
A. For use at all plants but Boat appropriate at large plants (where
signatory has ultimate responsibility but lacks direct control or
specific knowledge of details):
I certify under penalty of law that this document and
all attachments were prepared under my direction or
supervision In accordance with a system designed to
ensure that qualified personnel properly gather and
evaluate the information submitted. Based on my
inquiry of the person or persons who manage the system,
or those persons directly responsible for gathering the
Information, the information submitted is, to the best
of my knowledge and belief, true, accurate, and com-
plete. I am aware that there are significant penalties
for submitting false Information, Including the possi-
bility of fine and imprisonment for knowing violations.
(40 C.F.R. §122.22(d); 48 Fed. Reg. 39,619, Sept. I,
1983)
B. Alternate form that is appropriate for use at smaller plants (where
signatory has direct control over and specific knowledge of details)
I declare (or certify, verify, or state) under penalty
of perjury that the foregoing Is true and correct,
Executed on (date).
(28 D.S.C. §1746)
CWA Compliance/Enforcement 6-30 Guidance Manual 1985
-------
Chapter Six Exhibit 6-2
NOTES
a Same of permittee
fc If the permit has expired but has been continued by operation of law
and the expired permit had Section 301(b)(l) limits, add sentence
showing continuing applicability of final permit limits.
c Applies only if there has been a preliminary diagnostic evaluation. '
Language cross referencing any reports, etc., that indicates problem
sources or solutions may be substituted. Such reference, obviously
may be deleted if the Region or state does not wish to send, or if
previously transmitted.
d Applies if there are no outstanding orders.
e Applies if there are outstanding 1PA or state orders or court
decrees.
* If desired, add reference to authority of representative to execute
documents under 40 C.F.R. §122.22 where request is to large
municipality that may have decentralized management.
8 Inclusion of this sentence is optional in EPA- or state-issued
requests.
CWA Compliance/Enforcement 6-31 Guidance Manual 1985
-------
Chapter Six Exhibit 6-3
Sample Section 308 Letter—Industrial Discharger
Mr. B. G. Caldwell 2.0 "&
Dow Chemical Company 3^
Dow Center
Midland, Michigan 48640
Dear Mr. Caldwell:
The enclosed information request is directed to you under the
authority of the Federal Clean Water Act, Section 308, 33 U.S.C. 1318,
and the Resource Conservation and Recovery Act, Sections 3007 and
8003, 42 U.S.C. 6927 and 6983. The response must be returned to the
United States Environmental Protection Agency, Region V, Attn. Arnold
Leder, Chief, Compliance Section, within 21 days of receipt.
The written statements submitted pursuant to this request must be
notarized and submitted over an authorized signature certifying that
they are true and accurate to the best of the signatory's knowledge
and belief. Moreover, any documents submitted to Region V pursuant to
this information request must be certified as authentic to the best of
the signatory's knowledge and belief. Should the signatory find, at
any time after submittal of the requested information, that any por-
tion of the submission certified as true is false or incorrect, the
signatory should so notify Region V. If any response or document
certified as true is found to be untrue, the signatory can be prose-
cuted under 18 U.S.C. 1001 and other Federal statutes.
The information requested herein must be provided notwithstanding its
possible characterization as confidential information or trade
secrets. Should you so request, however, any information (other than
public Information) which the Administrator of this Agency determines
to constitute methods, processes, or other business information
entitled to protection as trade secrets will be maintained confiden-
tial. Request for confidential treatment must be made when the infor-
mation is provided, since any information not so identified will not
be accorded this protection by the Agency.
If you have any specific questions concerning this request, please
contact Jonathan T. McPhee, an attorney on my staff, at (312)
256-0078.
Very truly yours,
ORIGINAL SIGNED BY DALE S. BRYSON
Sandra S. Gardebring
Director, Enforcement Division
CWA Compliance/Enforcement 6-32 Guidance Manual 1985
-------
Chapter Six Exhibit 6-3
cc: Jack Bails
Michigan Department of Natural Resources
Jay Brant
Assistant U.S. Attorney
Jose Allen
U.S. Department of Justice
bcc: Bryson, Penner, Grimes/Schulteis/McPhee
Miner
Bremer/Hesse
Pratt/Barney.
Am endola
Zar
Leder/308 Tracking
Winkelhofer/Amendola
McGrath/Saulys
Manzardo/Dzlkowski/Newraan/eiemens
CWA Enforcement/Compliance 6-33 Guidance Manual 1985
-------
Chapter Six Exhibit 6-3
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION V
JOU CHEMICAL COMPANY,
MIDLAND, MICHIGAN
Respondent .
DIRECTION TO PRODUCE INFORMATION JNOER
SECTION 3Q3(a) OF THE CLEAN WATER ACT
AND SECTIOHS 3007 ANO 3003 OF THE
RESOURCE CONSERVATION AW RECOVERY ACT
Oow Cheaalcal Company shall produce the following information regarding
operations at Its Midland, Michigan plant, within 21 days following receipt
of this request. The response shall be made under oath by a responsible
corporate official.
DEFINITIONS AHO INSTRUCTION
A. As used herein, "Dow-Midland facility* shall mean the plant, facilities
and operations, Including brine fields, pipes or plumbing appurtenant
thereto, and reinjection or underground Injection wells or systems which
are used or employed In the production, treatment, transport, or disposal
of chemicals or chemical waste in and around Midland, Michigan, by Oow
I
Chemical Company.
8. As used herein 'laboratory quantities* shall mean small quantities
of materials (less than 2 kilograms per month) which are used for analytical
purposes or pilot or bench scale operations in the development or testing of new
processes or- production methods.
C. "Documents" shall include, but not by way of limitation, all correspond-
ence, memoranda, notes, letters, reports, drafts, laboratory notes, chromatograms
or other direct analytical data, minutes of meetings, scientific papers (whether
published or unpublished), and tape or disc recordings, and copies of any of the
above.
0. "Chemical waste* or 'waste products" shall mean wastewater; process
contact irtter (or non-contact «atar wli*re It Is possible that such could be
contaminated or Infiltrated, e.g., by leaks in condenser or heater tubes);
discarded or unwanted products, byproducts, filtrates, extracts, or contaminants.
CWA Compliance/Enforcement 6-34 Guidance Manual 1985
-------
Chapter Six , Exhibit 6-3
E. " Identify" shall mean;
1. With respect to a person, state that person's
(a) full name, (b) business and residence address,
(c) employer's name and address, (d) position or
occupation, and (e) if a corporation, the state
•nd date of incorporation and location and address
of Its principal headquarters.
2. With respect to a document, state (a) its title or,
if none, its suoject natter, (b) Its date, (c) the
author or address, (d) the addressee, 1f any,
(e) the reclpents of all copies, (f) the farm, file,
or document control number, 1f any, (g) It's location
and Its custodian.
3. With respect to a chemical or chemical waste, state
the comnon chemical name and any synonymous names,
listed in the 8th or 9th Collective Index of Chemical
Abstracts.
F. 'Relating to" shall mean constituting, defining, containing,
embodying, identifying, stating, referring to, dealing with or in any way
pertaining to.
G. 'Production process* shall mean all structures, pipes or other
plumbing, electrical or electronic apparatus, tanks, vessels, reactors,
condensers and other equipment associated with the manufacture, production,
refinement filtration or other activity Involved 1n creation of any saleable
product by Dow-Midland, Including all influent and effluent streams or
pathways for raw materials, catalysts, sorbents, modifiers, product, by-
product, waste product and any other input or output from each such discrete
process.
H. "Waste stream" or "wastewater" shall include, but not by way of
limitation, solid, liquid and gaseous material which is not a raw material,
intermediate product or saleable byproduct of each production process or
other source at Oow-Midland and any rejected, spilled, dumped, leaked or
otherwise lost or unconflned raw material, intermediate product, or saleable
product or byproduct which has not been recovered or reclaimed for sale
or reuse and which 1s disposed of, stored for disposal or consigned for
disposal by Dow-Hidland or by any other person by Incineration, landfilllng,
discharge with or without treatment to waters of the United States, deep-well
Injection or reflection, or otherwise.
CWA Compliance/Enforcement 6-35 Guidance Manual 1985
-------
Chapter Six Exhibit 6-3
.3-
1, 'Dispose of" shall mean to burn, vaporize, volatilize, leach, spill,
dump, landfill, discharge, Inject or pump Into subterranean structures-or
soils, or otherwise dissipate Into the ambient environment.
J. As used herein, the singular shall Include the plural and the plural
the singular, verb tenses shall be taken to Include past, present and future,
and the masculine the feminine, "each" shall include 'every" and "every" shall
Include "each", "any" shall Include "all" and "all* shall Include "any",
K. With respect to analytical data provided 1n response to this document,
describe the sampling, preservation techniques and analytical protocols used
to determine the results and specify the detection limits of each analysis.
1HFOWWIQN TO BE PRODUCED
1. Provide a complete description, by trade name and chemical name, of
all products, Intentional or unintentional byproducts, secondary products and
waste products (whether disposed of, recycled or otherwise handled) now used
or produced at the Dow-Midland facility, or used or produced there since
January 1, 1970. ather than laboratory quantities of such materials. This
description should attribute each material so identified to the production
process which employs or generates It.
2. Provide a complete description of all raw materials , by trade naae
and chemical name or species, now used at the Dow-Midland facility, or used
there since January 1, 1370, other than laboratory quantities of such materials.
Including all information en the Identity and quantity of irapunties and/or
contaminants contained therein. This description should attribute each material
so Identified to the production process which employs it.
3. Identify the sources and the amounts of the materials described in
paragraphs 1 and 2 above, used or produced during the period January 1, 1970
to November 30, 1980, on an annual basis and by production process.
CWA Compliance/Enforcement 6-36 Guidance Manual 1985
-------
Chapter Six Exhibit 6-3
-4-
\
4. Describe, by use of flow diagrams, blueprints, and written descriptive
material, each production process at the Dow-Midland facility, 11st the wastewater
or waste stream volumes from each production process or other source at Dow-Midland
facility, and describe the location within the plant from which such wastewater
or waste stream emanates or originates by the use of flow diagrams or schematics,
blueprints or otherwise, which diagrams or schematics should also reflect Inputs
of raw materials and outputs of product.
5. For each wastewater stream source characterized In paragraph 4 above,
Identify each chemical substance, other than water, by chemical name which 1s
known or suspected to be present In such waste stream, except for waste streams
which contain only domestic sewage.
6. Describe, with flow diagrams or schematics, blueprints, or otherwise,
the disposition, transfer, and treatment of all wastewater streams at the Dow-
Midland facility described In paragraph 4 above.
7. Describe for each material listed under paragraphs 1 and 2 above, the
methods of disposal now In use, or used by the Dow-Midland facility.
since January 1. 1970, of each such material which 1s not sold as a marketable
product or consumed In the manufacture of a marketable product at the Dow-Midland
plant. Including spilled, off-specification or contaminated product and raw material.
This description shall Include an Identification of the material; the production
process or operation which produces the material; the method of disposal of such
material; the names, addresses, and the dates of employment of, and volumes of
materials handled by, waste haulers, transporters or disposers emoloyed by the Dow-
Midland facility; and the names, addresses and dates of employment of disposal
or recycling facilities used by the Dow-Midland facility, Including any which are
owned and/or operated by Dow Chemical Company, or any of its operational units
or subsidiaries, wholly or In partnership or concert with others.
8. For each point-source discharge froa the Dow-Midland facility, provide
CWA Compliance/Enforcement 6-37 Guidance Manual 1985
-------
Chapter Six Exhibit 6-3
.5.
a complete characterization and quantification of each constituent of effluent
\
discharged for said point source it the present time, where such Information has
not been provided as part of a permit application under the Clean Wattr Act,
33 U.S.C. 125l_tt je£. To the extent that analytical data are available, provide
such a characterization for each effluent and each point source discharge since
January 1, 1975. This request Is not directed to the Monthly Operating Reports
(MORs).
3. To the extent that responses to the foregoing do not describe them,
specify the Identity and quantity of each constituent of any waste stream placed
into any underground injection system, whether deep-well or relnjectlon, or
lagoon, pond or similar facility, operated in conjunction with any production
or waste disposal process at the Dow-Hidland facility, since January 1, 1965.
Include • description of the geologic and nydrogeologic conditions surrounding
and/or underlying each such location, and Identify all studies relating to the
original and subsequent condition of groundwater surrounding or underlying each
such location.
10. Identify all studies done by the Dow-H1dla«d facility or Its contractors or
employees relating to the exposure of animals or plants to effluents from or
Internal process waste streams within the Dow-H1dland facility, whether based
on direct exposure to the effluent or waste stream, or In-stream or after
dilution. Identify all studies by the Dow Chemical Company or its contractors
or employees relating to concentrations of organic chemicals present in
receiving waters both upstream and downstream from the Dow-Midland facility.
11. Provide copies of all documents relating to each study described In
paragraph 10 above.
12. Identify all studies done by the Dow Chemical Company, or it contractors or
employees, relating to the presence of metallic or organic contaminants In aniwls
or plants In surface waters which are or could be affected by effluents or discharges
CWA Compliance/Enforcement 6-38 Guidance Manual 1985
-------
Chapter Six Exhibit 6-3
-6-
U. PraviJj copies of all doc-wits relating to cach study dusiHbec in
paragraph 12 above,
14. Identify all protocols or met'icoologies used, initiated, discove-e.1 or
e.7?',>.'C>VV *•') .',T<«%"J->^«_^
-S AI{ JSA 3 . SAR Je BR lafi
Oirsctsr, Enforcement Division
Compliance/Enforcement 6-39 Guidance Manual 1985
-------
Chapter Six
Exhibit 6-4
Model ifotlce of Violation
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Region
In reply refer to
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Addressee — the State
Addressee — the Violator
Re: Notice of Violation No.
NPDES Permit No.
Dear
The enclosed Notice of Violation sets forth the findings of the United
States Environmental Protection Agency (EPA) that has violated
certain limitations of the above-captioned NPDES permit. This permit
was issued on by pursuant to the Clean Water Act, as
amended (Act).
The Notice is issued pursuant to Section 309(a) of the Act. If the
does not commence appropriate enforcement action within thirty (30)
days of this notification, the EPA may undertake enforcement action
pursuant to Section 309 of the Act.
If you require any Information or assistance regarding this matter,
please contact , an engineer on my staff whose telephone
number is ____________• Please inform this agency of all action
taken with regards to this natter.
Sincerely,
Director
Water Management Division
Enclosure
CWA Compliance/Enforcement
6-40
Guidance Manual 1985
-------
Chapter Six Exhibit 6-4
Region TIT
Curtis Building
6th & Walnut Streets
Philadelphia, Pennsylvania 19106
IN THE MATTER OF:
Facility name and address:
Docket No.
PROCEEDINGS UNDER SECTION 309(a)
OF THE aBAN WATER ACT
AS AMENDED, 33 U.S.C. §1319(a) IN
RE: NPDES PERMIT NO.
NOTICE OF VIOLATION
STATUTORY AUTHORITY
The following FINDINGS are made and NOTICE OF VIOLATION issued pursu-
ant to the authority vested in the Administrator of the Environmental
Protection Agency (hereinafter "EPA") under Section 309 of the Clean
Water Act, as amended, 33 U.S.C. §1319 (hereinafter "Act"), which
authority has been delegated by the Administrator to the Regional
Administrator of Region , and redelegated by the Regional Admini-
strator of Region to the Director, Water Management Division of
Region .
FINDINGS OF VIOLATION
1« On , EPA, Region , and the (applicable
state agency) issued National Pollutant Discharge Elimination System
Permit Number (hereinafter "Permit") to [source]
(hereinafter "Permittee") to discharge from its facility located at
to the River, a navigable waterway, in accordance
with effluent limitations and monitoring requirements and other
conditions set forth in the permit. The permit became effective .
2. Paragraph of the permit, as amended, entitled "Future
Effluent Limitations and Monitoring Requirements" required that the
permittee attain certain specified effluent limitations for outfall
001 by .
3. Part IB of the permit, as amended, entitled "Monitoring and
Reporting" requires the permittee to submit Discharge Monitoring
Reports (hereinafter "DMRs") on a quarterly basis showing the results
of all monitoring for the preceding three months.
4. An evaluation of the DMRs submitted for the months of July, 1977
through April, 1978 shows that the permittee has violated the effluent
limitations for outfall 001 as reported In Attachment A.
CWA Compliance/Enforcement 6-41 Guidance Manual 1985
-------
Chapter Six Exhibit 6-4
NOTICE OF VIOLATION
Notice Is hereby given to the permittee and the [state agency] that the
undersigned, by the authority duly delegated by the Administrator of IPA
to the Regional Administrator of EPA, Region , and by him duly
sub-delegated, finds that the permittee la In violation of a condition
or a limitation that implements Section 301 (33 U.S.C. §1311) of the
the Act In a permit issued under Section 402 (33 U.S.C. §1342) of the
Act.
If the state has not commenced appropriate enforcement action within
thirty (30) days of the date of this Notice, EPA, Region , will
commence appropriate enforcement action pursuant to Section 309 of the
Act (33 U.S.C. §1319).
Signed this day of ^_____ , 19
Director
Water Management Division Region
CWA Compliance/Enforcement 6-42 Guidance Manual 1985
-------
Chapter Six Enhiblt 6-5
Recommended Format for Clean Water Act
Section 309 Administrative Order
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20*60
JUL 301985
arnet or
WAT1R
MEMORANDUM
SUWiCTv""3ecoiwiended Format for Clean Water Act
action 309 Administrative ardors
i.-» i"_
PROM: Rebecca W. Hanraer, Director
Office of water Enforcement and Permits (EN-335)
TOi Water Management Division Directors
Regions I - K
One of the most frequently used Environmental Protection
Agency mechanisms in the formal enforcement process is the
Administrative Order (AO) issued under Section 309 o€ the Clean
Hater Act. It is our belief that AO'g should be used in a
consistent and affective wanner since they are a major part of
the enforcement schema. Por this reason, the Office of Water
Enforcement and Permits has undertaken an effort to assess AO
content and format during the past year. The outcome of that
assessment was the draft Recommended Format for Administrative
Orders forwarded to you on Hay 9, 1985. We have received
comments and suggestions from several Regions which were utilized
in preparing the final documents. Attached you will find the
'final Recommended Format for Clean Water Act section -309
Administrative Orders (Attachment 1).
The Recommended Format was developed with the cooperation
and assistance of the Office of Enforcement and Compliance
Monitoring. fh« purpose of tha Recommended Format is to provide
a general guide which delineates (1) the specific statutory
requirements (such as the requirements oC Section 3Q9(a)(4) on
opportunity for a recipient to confer with the Administrator
on violations based on failure to submit information); and
(2) options and suggestions on format Cor Administrative Orders
(such as tha option of including violations in a separate
section after Findings of Pact). The Recommended Format, as
utilized by tha Regions, should result in more effective and
even-handed national enforcement through Administrative Orders.
Of A Compliance/Enforcement 6-43 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
- 2 -
In addition to the Recommended Format, we are forwarding the
Checklist on Administrative Orders (Attachment 2). The Checklist
should be used for reviewing EPA and State-issued AO's. There will
obviously be some variation among states with regard to AO's;
however, the use of a Checklist should assure that the State-issued
AO's are complete and enforceable.
The new guidance replaces a document dated April 18, 1975
that was developed by the Office of Water Enforcement. It should
be noted that the statute was revised twice since 1975. In
particular, the new guidancet discourages use of successive AO's
for the same violation? clarifies which legal authority (e.g.,
Sections 308 and 309) EPA should cite as the basis for certain
requirements imposed through an AO; clarifies the scope of require-
ments which EPA may impose through AO's; identifies sanctions
available for AO violations; and sets out sample provisions
which AO's should include to clarify the legal effect of the
Order.
In the coming fiscal year, the Office of Hater enforcement
and Permits, with extensive coordination with the Office of
Enforcement and Compliance Monitoring (OECM), will develop further
information on the use of Section 309 Administrative Orders. Some
of those documents will coven use of AOs on consent (bilateral
and joint signature); principles for negotiation of bilateral
orders especially for National Municipal Policy? use of multiple
AO's and alternatives to AQ's for the sane facility when an AO
is violated; and increased use of Section JOB to require information
(including use of show cause proceedings).
If you have any specific questions on the above, please
call me (FTS-475-8488) or Bill Jordan, Director, Enforcement
Division (FTS-475-8304). The staff contact is Virginia Lathrop
(PTS-475-8299).
Attachments
CWA Compliance/Enforcement 6-44 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
ATTACHMENT 1
Recommended Format for Clean Water Act Section 309
Administrative Orders
The following is the recommended format and content for an
Administrative Order (AO). Examples and suggested wording are
Included at various points in the discussion and in the sairple
AO (Attachment 1-0). Adherence to the Recommended Format should
result in more effective and evenhanded national enforcement
through Administrative Orders.
Introduction
The following should be followed for the venue, title,
docket identification and preamble paragraph.
UNITED STATES
EHVIRONHENTAt PROTECTION AGENC*
REGION
IH THE MATTER OP DOCKET MO. X1-B4-Q6
Wastewater Treatment Works »4
Sludge River Pollution Control District
Sludge Palls, Columbia
PROCEEDING UNDER SECTION
309(a) of the
Clean water Act, 33 U.S.C. FINDINGS Of VIOLATION
Section 1319(a); in re AND
NPDES PERMIT No. OPDER POR COMPLIANCE
'The following FINDINGS are made and ORDER issued pursuant
to the authority vested in the Administrator of the United States
Environmental Protection Agency (EPA) under Section 309 of the
Clean Water Act, 33 U.S.C. S1319, (hereinafter the Act) and by
him delegated to the Regional Administrator of EPA, Region XI
(and redelegated by the Regional Administrator of Region XI to
the Director, Hater Management Division, Region xi)."
CWA Compliance/Enforcement 6-45 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
- 2 -
Venue and title
The Region Identification is included to establish th<
specific venu* of the issuing authority. The full address of
the Region is to be in the letterhead or under the Regiona.
Administrator's (or his designee's) signature to the Order and
on the blue back cover (which is optional).
Docket Number
To identify the proceeding, a docket number is required.
To avoid confusion, the NPDES number should not be used as the
Docket number. However, the NPDES number, if any, should be
referred to under the proceedings identification in the title.
The docket number "XI-84-06" identifies tha Order as being the
6th Order issued in 1984 in Region XI. An Administrative Order
docket should be kept separate from any other docket. However,
if a common docket is kept then a prefix should be added to the
docket number, e.g., "XI-AO-84-06".
Preamble Paragrapji
The preamble paragraph is important not only to establish
the Administrator's authority to issue the Order but also to
establish the delegation of authority to the Regional Administrator.
t£ the Regional Administrator has redelegated his authority to
the Director of the Regional Water Management Division, thia
redalegation should also be stated here or in the preamble to
the Order portion of this document. It should be noted that
there is no authority to redelegate this authority to other RPA
Regional staff below the Division Director level. If the
redelegation is asserted here, the paragraph should be amended
by adding:
"... and redelagated by the Regional Administrator of
Region XI to the (undersigned) Director, Hater Management Division,
Region XI".
The Administrative Order can be signed by a duly authorized
Acting Regional Administrator or Director. However, the Agency
should be prepared to show that the person signing as Acting
Regional Administrator or Director has the requisite authority
to sign the Order.
CWA Compliance/Enforcement 6-46 Guidance Manual 198S
-------
Chapter Six Exhibit 6-5
- 3 -
FINDINGS OP FACT
The Findings should adequately set forth the specific permit,
statutory (and regulatory)* requirements violated and the specific
nature and dates o£ the violations. In order to avoid difficulty
In determining from the face of the Findings whether the order
was necessary and timely, and the remedy was appropriate, the
Findings and Order should be able to stand without reference to
extraneous facts. The Findings should speak to all t'he pertinent
facts and law much as a complaint in a civil action does. With
these observations in mind, the following recommendations are
•ade as to th* specific facts to be alleged in the Findings.
Status of Violator
Findings of Pact should first identify fully the entity to
whom the order is to be issued and define its legal status
(i.e., corporation, partnership, aasoclation, state, municipality,
commission or political subdivision of a state). Clearly
identifying the orderee limits the possibility o£ challenges to
jurisdiction or venue and establishes a record upon which
subsequent enforcement actions may rely. The Findings should
next establish the orderee 's status under the Clean Mater Act,
(i.e., permittee, industrial user, control authority, etc.) and,
in the case of permittees, the permit number, date issued, and
current permit status. The Findings should name the receiving
stream into which the violator discharges and should establish
the violator discharges to "navigable waters* under Section
502(7) of the Act through a specific point source as defined in
Section 502.
of Violations
Section 309{a)(5!(A) requires that all orders ". . . should
state with reasonable specificity the nature of the violation
. . . ." It is imperative that the Findings contain the specific
permit provision or statutory or regulatory requirement which
has been violated and the authority by which it was imposed on
the orderee. Next, the evidence or basis for the specific
violation (such as DMR, inspection report, BMR) and dates of
violation should be set forth concisely. In cases of more than
one violation, identify what the documentation is for each and
give the specific dates of violation. (In instances where only
approximate dates are known or where there is a continuing
violation say "on or about" or "beginning on or about".)
Alternatively the violations may be sat off in a separate section
entitled "Violations" which can follow the "Findings of Fact."
An AO should not set out a regulatory requirement that was violated
without setting out the underlying statutory requirement. The
Section 309(a)(3) authorizes AO's for violations of permit and
statutory provisions.
CWA Compliance/Enforcement 6-47 Guidance Manual 1985
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Chapter Six Exhibit 6-5
- 4 -
Where the violation is based on a £ tilure to provide required
information, a finding can usually only itate that the required
information was not received by the agency. In those cases, the
lack of receipt of the required information must serve as the
basis of the violation. Section 308 violations have additional "
requirements as described below.
CWA Section 308 Violitions
Administrative Orders issued for violations based on a
failure to submit information requested under Section 308 of the
Act do not take effect until the person to whom it is issued has
had an opportunity to confer with the Administrator (or his or
her designee) concerning the alleged violation. (See CWA
Section 309(a)(4)). It is essential that such person be provided
with a reasonable opportunity to confer. Any order issued for a
Section 308 violation either exclusively or in conjunction with
other violations should provide for a period of time in which
the orderee may confer with an authorized person designated in
the Order. If an opportunity has been provided prior to the
issuance of the order, the order should so state and set forth
the documentation of the opportunity to confer and the outcome
of the conference, if any.
Prior Enforcement Contacts
Administrative Orders frequently set forth prior contacts
with the orderee in an attempt to obtain compliance. Generally,
this is a good practice since it helps to build a record and may
provide additional support in any subsequent enforcement action.
This can be done by cataloguing the meetings, letters, telephone
calls, etc., made in an attempt to secure voluntary compliance
or by stating that repeated attempts were made. The repeated
attempts may be set out in an attached summary or log of meetings,
notices, letters, and telephone calls and dates thereof, along
with dates of responses from the orderee, if any (see Attachment
1-A).
Other Findings
In certain circumstances it may be necessary or useful to
include other findings which are supportive to the specific
requirements of the order (e.g., "the company's treatment works
are currently capable of meeting the effluent limits contained
in its permit" or 'the POTW has adequate authority to enforce
the categorical pretreatment standards"). Whether or not to
include such statements must be determined on a case by case
basis but, if included, should be incontrovertible facts.
CWA Compliance/Enforcement 6-48 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
ORDER FOR COMPLIANCE
The format for the Order should be as follows:
Ordar
"Baaed on the foregoing FINDINGS and pursuant to the
authority vested in tho Administrator, Environmental Protection
Agency, under Sections 308 and 309(a) of the (Vet, and* by him
delegated to the undersigned (or if the Regional Administrator
redelegatea his authority to the Division Director, add after
"of the Act* - "and by him delegated to the Regional Administrator,
and redelegated to the undersigned"), it is hereby ordered!".
If the delegation statement is stated in the Preamble, this
statement may simply be: "Rased on the foregoing Findings, and
pursuant to the authority of Sections 308 and 309(a) of the Act,
it is hereby ordered:"
Terras of the Order
Section 309(a)(l) and (a)(3) authorizes the Administrator to
issue an order requiring compliance with enumerated sections of
the Act or a condition, limitation or permit requirement implementin
the enumerated sections of the Act. Any requirement contained in
the order must be directly related to achieving that compliance
with those legal requirements. The terns of the order must set
forth what EPA specifically expects the Orderee to do in order to
achieve and maintain compliance.
Section 309(a)(5)(A) sets forth the time periods by which
the orderee oust comply. In cases of an interim compliance
schedule or an operation and maintenance requirement the time
for compliance nay not exceed thirty days. In cases of compliance
with a final deadline, the time for compliance must be "reasonable*
as determined by the Administrator, taking into consideration
the seriousness of the violation and past efforts o£ the orderee.
Every order tust contain a specific final date by which the orderee
must achieve compliance (i.e., cease its violation!s)) consistent
with the statutory language.
Although some Orders have included a prescribed method by
which an orderee is to achieve compliance, specific prescribed
steps or methodologies (such as a treatment technology) may be
difficult to enforce. Because Section 309 specifies in explicit
terms only that AO'3 require compliance by a date certain the more
closely a requirement in the AO is related to actually achieving
compliance, Che sounder the legal position to include that require-
ment. Section 308 of the Act can provide substantial support in
this area by requiring reporting of the specific steps or methods.
CWA Compliance/Enforcement 6-49 Guidance Manual. 1985
-------
Chapter Six Exhibit 6-5
- 6 -
The Orders containing Interim milestones leading to final
compliance should include reporting requirements under Section 308.
The order should specify the manner and timeframe for reporting
compliance with the terns of the order to the issuing authority.
The order should contain requirements Cor reporting on the
compliance progress and submitting suitable documentation to
show the Orderee has tal'en action to meet the AO requirements.
The attached sample AO jets forth sample language on order
requirements (Attachment 1-0), as well as a sample blue back
(Attachment 1-C) and cover letter (Attachment 1-B).
Additional Provisions
It has been the long term practice of many of the Regions
to include standard provisions regarding additional remedies,
nonwaiver of permit conditions, etc., in all administrative
orders or as part of the cover letter accompanying the AO. This
practice should be used by all the Regions for every order issued.
In addition to promoting national consistency, it alerts the
violator to the array of sanctions which could be used should
additional enforcement be necessary and helps encourage compliance
with the Order as issued.
The following are sample provisions which should be added to
Administrative Orders singly or in combination and may be modified
based on the particular facts of the case. They may also be
included in the cover letter.
Non Waiver of Permit Conditions:
"This ORDER does not constitute a waiver or a modification
of the terms and conditions of the Orderee's permit which
remains in full force and effect. EPA reserves the riaht
to seek any and all remedies available under Section 309(b)
(c) or Cd) of the Act for any violation cited m this ORDER."
Potential Sanctions for Administrative Order Violations
(for ion-Hunicipala}i
"Failure to comply with this ORDER or the Act may result in
civil penalties of uo to $10,000 per day of violation,
ineliqibility Cor contracts, grants or loans (Clean Hater
Act, Section 508) and permit suspension.*
General Disclaimers:
'Issuance of an Administrative Order shall not be deemed an
election by EPA to forego any civil or criminal action
to seek penalties, fines, or other appropriate relief under
the Act."
CWA Compliance/Enforcement 6-50 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
- 7 -
•Compliaice with the terms and conditions of this ORDER
shall not be construed to relieve the orderee of Its
obligations to comply with any applicable federal, state
or local law.'
Administrative Action Resulting in Inel igibility Cor Federal
Contracts, Grants or Loans:
•Violations of this order may result in initiation of Agency
action to prohibit the facility from obtaining Federal
contracts, grants, or loans pursuant to Clean Water Act,
Section 508, E.O. 11738, and 40 CPR Part 15."
Effective Date of the Order
When the Order does not address a violation o£ a requirement
to provide information under Section 308, the ORDER can merely
recite that:
•this ORDER shall become effective upon its receipt by (or
service upon) said COMPANY.*
For Section 308 violations where an opportunity for conference
before the ORDER can become effective is required by section 309
and this was ..ot done prior to the issuing of the ORDER, the
last paragraoh should read:
"The COMPLY shall have the opportunity, for a period of
) days from receipt of this ORDER, to confer with
_
the following designated Agency representative: Hr. N. Force,
Director, Water Management Division, Environmental Protection
Agency, Room 5013, Region XI, Old National Bank Building, 1414
Main Street, Brewsterville, Centralia, 11101, (555) 123-4567;
unless the Agency official issuing the Order decides otherwise,
this ORDER shall become effective at the expiration of said
period for consultation; and, the COMPANY shall have _
(_) days from *nd after said effective date to comply with the
terms of this uRDER. To constitute compliance, material required
to be submitted by the COMPANY to the Agency must be in the hands
of the designated Aqency representative prior to the expiration of
said _ (_) day period."
Signing of the Order
When the Order is dated and signed, the name of the signing
official (Regional Administrator, or Director, Water Management
Division) should be typed below the signature, together with
the address of the Regional office.
CWA Compliance/Enforcement 6-51 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
- a -
i
Other Considerations
The use of legal blue-back at least on the primary copy of
the Findings and Order served, while not necessary, tends to
impross upon the person served of the legal seriousness of the
action being taken. Attachment 1-C provides a proposed format and
content of the legal blue back. When a Order is issued to a
Corporation, a copy of the Order shall be served on appropriate
corporate officers.
As in court actions, the order should be retained and placed
in a permanent file with the Rocket Clerk, along with the affidavit
or certification of service attached. If service is made by
certified mail restricted delivery, a carbon copy of the letter
of transraittal, together with the Post Office mailing receipt
and the return receipt, when returned, should be stapled to the
front of the original Order, just as a return of personal service
would be.
Follow-up and File Closing
As good housekeeping practice, and more importantly, from
the standpoint of possible reference for or evidence in future
administrative or court actions, it is important that every file
contain, at the minimum, a closing memo to the files delineating
the final disposition of the matter. (The AO will only be closed
out when the facility has returned to compliance or when appropriate
EPA action is taken, i.e., escalating the enforcement response.)
"hen a file is closed out, a brief letter should be sent to
the orderee with a carbon copy to Headquarters advising that the
action has been completed. Attachment 1-E is an example of what
a close out letter might look like.
CWA Compliance/Enforcement 6-52 Guidance Manual 1985
-------
Chapter Six
Exhibit 6-5
ATTACHMENT I-A
Prior Contacts with Orderee
Despite repeated written and telephone reauests, as more Cully
set out in the log attached as Exhibit and made a part hereof
by reference, the COMPANY, in violation of Section 308 of the
Act, has not supplied the requested information.
tOC SAMPLE
12/04/83
12/07/84
12/10/84
04/23/84
04/24/84
OS/06/84
DMR data showed significant noncompliance
(memo from X. Anin to file).
30S Letter sent to Company.
Plant Visit: Some data from inspection
(by N. Spector).
Telephone - N. Force to Company. Follow-up
requests for information on recent DMR from
Company. No information sent.
Telephone - M. Force to Company. To request
additional data by phone from Company. No
information obtained.
Note filed by S. Force - Bo letter or further
information from Company.
CWA Compliance/Enforcement
6-53
Guidance Manual 1985
-------
Chapter Six Ezhlbit 6-5
ATTACHMENT 1-B
February 21, 1985
CERTIFIED MAIL -
RETURN RECEIPT REQUESTED
Ms. Alice Smith, Director
Sludge River Pollution Control
District
13 Plain Street
Sludge Falls, Columbia 1234S
RE: NPDES Permit No. CL0003456
Dear Ms. Smith*
Enclosed is an Administrative Order issued to the Sludge River
Pollution Control District (SRPCD), by the Regional Administrator
of the Environmental Protection Agency ("EPA"), Region XI, under
Sections 308 and 309 of the Clean Water Act (the "Act"). The
Regional Administrator has found that the SRPCD has violated
Section 301 of the Act by failing to comply with certain
requirements of its National Pollutant Discharge Elimination
System permit. Specifically, during 1984 SRPCD consistently
violated its effluent limitations on ammonia and phosphorus and
intermittently violated affluent limitations for biochemical
oxygen demand and total suspended solids.
The Order, which is effective upon receipt, seeks to remedy the
violations by requiring SRPCD to submit a plan for meeting its
effluent limitations and requiring SRPCD to then implement the
plan and comply with its effluent limitations.
This Order does not modify your current NPDES permit; nor will
compliance with the Order excuse any violation of.the permit.
Failure to comply with the enclosed Order may subject the District
to further enforcement action. EPA may initiate a civil action
in federal district court for violations of an Order seeking
injunctive relief and civil penalties.
If you have any questions concerning this matter, please contact
Mr. Jones, an engineer in the Permit Compliance Section, at
222-3922.
Sincerely yours,
Prudence Purewater
Regional Administrator
Enclosure
cc: State Division of Hater Pollution Control
State Department of the Attorney General
CWA Compliance/Enforcement 6-54 Guidance Manual 1985
-------
Chapter Six
Exhibit 6-5
ATTACHMENT 1-C
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION
IN THE MATTER OF
SLfcDUE RIVER POLLUTION CONTROL
DISTRICT
SLUDGE FALLS, COLUMBIA
PERMITTEE*
NPDES PERMIT NO. CIOQ034S6*
PROCEEDINGS UNDER THE CLEAN
HATER ACT
AS AMENDED (33 U.S.C.
13l9(a)(3n**
FINDINGS OF VIOLATION
AND
ORDER OP COMPLIANCE
Issued by:
Prudence Purevater
Regional Administrator
Environmental Protection Agency.
Region XI
Federal Building
Hokum, Centralia 12345
* Where Permit has been issued.
** May also have proceeding under
33 USC 1318.
CWA Compliance/Enforcement
6-55
Guidance Manual 1985
-------
Chanter Six Exhibit 6-5
ATTACHMENT 1-D
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION XI
IN THE MATTEP OF ) DOCKET Number AO-85-13
Sludge River Pollution
Control District
Wastewater Treatment Works $4
FINDINGS OF VIOLATION
AND
NPDES Permit No CL003456
ORDER FOR COMPLIANCE
Proceedings under Section )
309(a) of the Clean Hater Act, )
33 U.S.C. S1319(a) )
STATUTORY AUTHORITY
The following FINDINGS are made and ORDER Issued pursuant to the
authority vested in the Administrator of the Environmental Protec-
tion Agency ("EPA") by Section 309 of the Clean Water Act, 33
U.S.C. S1319, (the Act), and by the Administrator delegated to
the Regional Administrator of EPA, Region XI.
FINDINGS
1. The Sludae River Pollution Control District (the "District")
is a political subdivision of the state organized under the
laws of the State of Columbia and as such is a "person"
under Section 502 of the Act, 33 U.S.C. $1362.
2. The Sludge River Pollution Control District is the owner
and operator of a wastewater treatment facility which provides
advanced treatment to wastewater from the Towns of Locus and
Sludge Falls. The facility discharges pollutants into the
Sludge River, a navigable water of the United States as defined
by Section 502 of the Act, 33 U.S.C. S1362.
CWA Compliance/Enforcement 6-56 Guidance Manual 1985
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Chapter Six Exhibit 6-5
- 2 -
3. The discharge of pollutants by any person into the waters of
the United States, except as authorized by an NPDES permit,
Is unlawful under Section 301(a) of the Clean Hater Act.
4. On January 22, 1981, the District was issued National
Pollutant Discharge Elimination System (NPOES) Permit Number
•CL0003455 (the "Permit") by the Regional Administrator of
EPA pursuant to the authority given the Administrator of EPA
by Section 402 of the Clean Water Act, which authority has
been delegated by the Administrator to the Regional
Administrator. The permit became effective on February 22,
1981, and will expire on February 22, 1996.
5, The permit authorizes the discharge of pollutants into the
Sludge River, in accordance with effluent limitations and
other conditions contained in the Permit. The limitations
contained in Special Condition Al of the Permit require the
plant to achieve monthly average limits of 7 mq/1 for BOD
and TSS, 1 mcj/1 Cor total phosphorus (Total P) and 1 ng/1
for ammonia nitrogen (NHj-N).
6. Attached hereto and incorporated herein by reference is a
summary of effluent data submitted by the District to EPA
for the period from December, 1933 to Novenber, 1984. The
data shows that:
a.} the District violated the monthly average limits for
TSS during two of the twelve months and violated the
maximum daily limits Cor BOD nine times and TSS
twelve tines over periods of three months and five
months, respectively;
CWA Compliance/Enforcement 6-57 Guidance Manual 1985
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Chapter Six Exhibit 6-5
b.) The District violated the limits on daily maximum
concentrations thirty tinea Cor HH3-N and twenty
tines for Total P over a six month period;
c.) The District violated average monthly Concentration
limits for NH3-N and Total P each month over a
period of four months and six months, respectively.
7. EPA personnel performed a diagnostic audit inspection at
the facility during 1984. The purpose of the inspection
was to determine the cause of non-compliance with the
effluent limitations for NR3-H and Total P. The inspection
report was completed on December a, 1984 and is attached
hereto and incorporated herein by reference as a part of
these Findings.
8. Based on the inspection report, the facility is currently
capable of meeting the concentration Units for NHj-N and
Total P if properly operated in accordance with Condition D2
of the permit which requires maximizing the removal of
those pollutants.
9. Based on the above, I find that the District is in violation
of Section 301 of the Act, 33 U.S.C. S1311, and permit
conditions implementing that section contained in a permit
issued under Section 402 of the Act, 33 U.S.C. S1342.
CWA Compliance/Enforcement 6-58 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
- 4 .
ORDER
Baaed on the foregoing FINDINGS and pursuant to the authority
of Sections 308 and 309 of the Act, IT IS HEREBY ORDERED*
1. Within sixty days of receiving this ORDER, the District
shall submit to EPA a plan for achieving compliance
with the effluent limitations on MH3-N, Total P, BOD,
and TSS. The plan shall address the operational
problems cited in EPA's December 8, 1984, diagnostic
audit inspection report and identify any changes in
plant operation, funding, and staffing necessary to
meet the permit conditions.
2. The District shall immediately comply with all eCCluent
limitations contained in Special Condition Al of the
Permit Cor BOD and TSS.
3. The District shall immediately achieve and comply with
the interim effluent limitations specified in Attachment
A for BHi-H and Total P as an intermediate step toward
achieving final compliance. These Interim effluent
limitations shall terminate on May 1, 1989. During the
time period that the interim effluent limitations are
in effect, all requirements and conditions of the
Permit remain fully effective and enforceable.
4. By Hay 1, 1984, the District shall have implemented
any operational changes necessary to meet the permit
effluent limitations for NH3-N and Total P. The District
shall conply with all effluent limitations contained in
the Permit by May I, 1985.
CWA Compliance/Enforcement 6-59 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
*» 5 w
5. Where this ORDER requires a specific action to be jer-
forsed within a certain time frame, the District shall
autrait a written notice of compliance or non-compliance
with each deadline. Notification shall be. mailed tithin
seven dayi after each required action.
6. If non-compliance is reported, notification shall
include the following information:
a) A description of the nature and dates of violations;
b) A description of any actions taken or proposed
by the District to comply with the requirements;
c) A description of any factors which tend to
explain or mitigate the non-conpliance;
d) The date by which the District will perform the
required action.
All reports shall be in writing and addressed as follows.
Director
Hater Management Division
U.S. Environmental Protection Agency
Federal Building - Room 13
Hokum, Centralia 12345
CWA Compliance/Enforcement 6-60 Guidance Manual 1985
-------
Chapter Six
Exhibit 6-5
- 6 -
This ORDER does not constitute a waiver or a mortification
of the terms and conditions of the District' i permit,
which remains in Cull force and effect. EPA reserves
the right to seek my and all remedies available under
Sections 309(b), (c) or (d) of the Act for any violation
cited in this ORDER.
Issuance of an Administrative Order shall not be deemed
an election by EPA to forego any civil or criminal action
to seek penalties, fines, or other appropriate relief
under the Act*
This Order shall become effective upon the date of
receipt by the District.
Dated this
day of
Signed:
Prudence Purewater
Regional Administrator
W.S. SPA, Region J
-------
Chapter Six Exhibit 6-5
Attachment l-E
He. Adams
Peerless Company
RR »3
Burning River, Centralia 12346
RE: Administrative Order IXI-AQ-8S-Q6
(HPDES Permit 80, 1111112)
Dear Mr. Adams:
This is to notify you that as of Hay 15, 1985 the above named
permittee appears to have complied with Administrative Order
IXI-AO-85-06 issued on February 24, 1985. This Administrative
Order has been placed on inactive status, and the Agency intends
no further enforcement action at this time based on presently
available information.
Sincerely,
Director
Water Management Division
cc: Compliance Information and Support Branch
OHEP (ES-338)
CWA Compliance/Enforcement 6-62 Guidance Manual 1985
-------
Chapter Six Eahlbit 6-5
ATTACHMENT 2
SAMPLE EVALUATION CHECKLIST FOR EPA's
CWA SECTION 309 ADMINISTRATIVE ORDERS or STATE EQUIVALENT
The purpose of this checklist la to serve as a guide for review of
State ftO's or EPA's ftO's.
1. Region:
2. State:
3. Date Issued:
4. [ } Major I I Minor
S. [ ] Municipal [ ] Non-Municipal
yea No
6. Does the administrative order contain a title? [ ] [I
*7. Does the order establish the venue of the
issuing authority? (i.e., identification of
EPA Region). (Ill
8. Does the order provide the address of the
issuing authority? ( J II
9. Does the order contain a standard docket
number? (i.e.. X-AO-84-01: X»Region; AO-AOs
84-Year; 01-Serial Number). ( ] [ !
10. Does the order state the appropriate statutory
authority for issuing the order? (i.e., CWA
Section 309{a) and where reports or information*
are required, Section 308). I ] ( 1
'11. Does the order contain a suitable statement of
delegation? {i.e., Delegation should correspond
to signatory of order). [ ] { 1
12. Does the order identify the legal status of
the violating party? (i.e., Leaal status as a
corporation, municipality, etc.). [ ] [ ]
These Questions are of particular interest for EP^ issued
Administrative Orders.
CWA Compliance/Enforcement 6-63 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
13.
14.
15.
16.
yes No
Does the ordar describe the legal authority/
instrument which is the subject of the violation?
(e.g., statutory provision, regulatory provision*
if applicable, statutory authority for permit
issuance, name of permittee, permit number, date
permit issued, permit modification or extension,
date previous administrative order issued, etc.). [ ] (1
Examples
[ ] Statute
[ ] NPDES Permit
Does the order contain a. specific finding that
the discharger is in violation of a soecific
statutory or permit requirement:? ( ] ( ]
Does the order describe or reproduce the
specific terms of the legal authority/
instrument which are the subject of the
violation? (e.g., effluent limitations,
compliance schedules, etc.). (1 [ ]
Does the order state, with reasonable
specificity, the nature of the violation?
(e.g., type of violation, date, evidence,
etc.). [ ] [ )
Examples
1 1 Reporting or monitoring violation
( 1 Effluent limitation violation
[ ] Violation of special permit condition
( 1 Pratreatment violation
( ] Unpermitted or unauthorized discharge
( ] Failure to meet O&H/const ruction schedule
I 1 Violation of a Section 308 letter
[ ] Improper Os M
( 1 Other
CWA Compliance/Enforcement 6-64 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
Ye 3 Mo
17. Does the order specify the duration of violation,
if known? I ] [ ]
Estimated vio.ation
•18. Does the order document prior raguasts to the
violating party Cor compliance with the legal
authority/instrument? (o.g., telephone calls,
letters, meeting, etc.).
f J t 1
*19. Where the order is issued for a CWA Section
308 violation does the order provide tha
violating party with an opportunity for prior
consultation? [ ] [ ]
20. Does the order establish interim effluent
limitations? f 1 [ )
21. Does the order sat out clearly any specific
steps which EPA/State wants the violating party
to take to achieve compliance? [ ] [ ]
Examples
C ] Submission of monitoring reports
[ ] Compliance with existing effluent limitations
( ] Submission of pretreatment program
[ ] Submission of correction/compliance olan or study evaluating
compliance options
[ ] Compliance with existing OSH/construction schedule
[ I Compliance with interim effluent limitation
[ ] Compliance with categorical or general pretreatment Standards
[ ] Other
22. Are the number oE days reasonable for the
type of relief sought? [ I [ 1
CWA Compliance/Enforcement 6-65 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
Yes Ho
23. Does the order contain a specific requirement
and dace foe final compliance? { ) [ J
24. Does the order specify a nanner and time frame
Cor reporting compliance with the terns of the
order to the issuing authority? [ ] ( ]
25. Does the order specify the effective date of
the order? (e.g., Date of receipt, date of
consultation, etc.). [ ) ( ]
26. What Is the elapsed tine between the dates of
violation and the date of issuance of the
order? Is the elapsed time reasonable?
Number of days _^__^__^
•27. who is the signatory of the order? (Choose
two or less).
( ] Regional Administrator
[ ] Regional Counsel
[ J Water Division Director
[ J State Water Pollution Control Officer
[ ] Other
CHA Compliance/Enforcement 6-66 Guidance Manual 1985
-------
Chapter Six Exhibit 6-5
Attachment 3
Recommended Format - CWA - Administrative Orders
Summary of Changes from the
April 13, 1975 Guidelines on
Administrative Order Format
General Approach
The April 18, 1975 guidance entitled "Guidelines Eor issuing
Administrative Compliance Orders Pursuant to Section 309(a)(3) and
(a)(4) of the Federal water Pollution Control Act, as Amended," has
been clarified and been brought up to date with the new July 1985
"Recommended Format for Clean Water Act Section 309 Administrative
Orders. "
Some examples of the modifications and additions are:
• The new guidance makes it clear that citations of the regulatory
basis of violations must also include the underlying statutory
basis of the regulation.
0 The new guidance makes it clear that the basis of the violation
may be set off in a separate section of the order if the Region
so chooses.
* The Section on Terms of the Order has been expanded to explain
in greater detail the need for a final date for tine periods for
coninq into compliance. This section also deals with prescribed
methods which may be imposed on Orderees through AO's (i.e., the
closer the requirement to achieving compliance, the sounder the
legal position to include the requirement in an AO).
" The discussion on using successive AO's has been eliminated since
the current view, successive AO's for the same noncompliance
problems should normally be avoided and the case should be
escalated to the referral process.
0 The discussion on personal service of AO's has been eliminated
since this is extremely resource intensive and the accepted
method of service is now by Certified nail-Restricted Delivery
with a return receipt.
• New attachments have been included such as the sample AO. Other
attachments were updated.
* We have added a section on Additional Provisions, such as a
commonly used statement that further violations of the require-
ments of the AO and the permit may result in civil action
including a penalty of up to 510,000 per day, ineligibility Eor
Federal contracts, grants and loans and suspension of the permit.
0 The Order portion of the Guidance and the Sample AO indicate
that Orders which include milestones should include reporting
requirements under Section 308 of the Act.
CWA Compliance/Enforcement 6-67 Guidance Manual 1985
-------
Chapter Six Exhibit 6-6
Model Municipal Administrative Orders
Cover letter - AO's for Preparing
MCP's and CCP's
.#
Honorable
Certified Hail - Restricted Delivery
RE:
Dear :
Attached hereto is an Administrative Order directed to
a , (the municipality) which makes findings
that3is in violation of the requirements of
•Cthe Clean Mater Act (the Act) and]* its National Pollutant
Discharge Elimination System (NPDES) permit. The Order requires
the performace of certain activities aimed at correcting those
violations at the earliest possible time. The Order is served
on you as a municipal offical.
[The municipality may wish to review the enclosed facility
plan which you have previously prepared as an aid in responding
to the questions asked in the order.1 xx
After a response has been reviewed, a
second Administrative Order will be entered or a court action
may be commenced. The Order or prayer for relief will require
correction of violations in a timely manner. Interim effluent
limits pending attainment of permit limits may also set.
The responses to the questions asked in the Order must be
signed by a principal executive officer or a ranking official of
f . The person signing the responses must certify
as to their accuracy. The form of certification should be
substantially the same as either the forms contained in
Attachment .
The failure to comply with the terms of the Order may result
in the taking of legal action under Section 309 of the Act.
Compliance with the terms of the order will, however, not excuse
past or future violations of the NPDES permit tor the Act].x
~J you have any questions concerning the Order, please contact:
Very truly yours,
NOTES
a Name of Municipality
x Omit bracketed words i£ CCP i<5 requested
xx Use bracketed words i£ accompanying MCP request and
Facility Plan has been submitted. Hay be deleted,at
option of Agency.
CWA Compliance/Enforcement 6-6B Guidance Manual 1985
-------
Chapter Six Exhibit
AO * Request for MCP
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION
IN THE MATTER OP ) Docket No.
5
) FINDINGS OF VIOLATIONS
Proceedings under Section 309(a)(3) )
of the Clean Water Act, as amended, ) AND
33 O.S.C. 1319
-------
Chapter Six Exhibit 6-6
3) On , ___^_ *_ was issued national Pollutant
Discharge Elimination System (NPDES) Permit Number (the
"permit") by the pursuant to
Section 402 of the Act, 33 O.S.C. 1342. The permit became
effective on 19 , and will expire on 19 .f
That permit requires the attainment of secondary treatment
[and water quality]" limitations after its effective
date, (and does not contain any extension of time
authorized by Section 301{i> of the Act].6
4) Discharge Monitoring reports and the records of EPA
Region relating to construction grants under Title II
of the Act show that permittee has consistently failed to
meet and continues to fail to meet the numerical effluent
limits contained in the permit and has failed to construct
treatment works necessary to achieve compliance with the
requirements of Section 301 (bHl) of the Act. (Cite
specific documentation showing recent violations per DMS's,
etc. and specific records showing lack of construction).
__*___ is therefore found to be in violation of a final
deadline contained in Section 301 (bMl) of the Act, and is
also found to be in violation of the effluent Imitations
of its NPDES permit implementing Section 301(b) of the
Act.
5) Section 309{a}(5) of the Act requires that Administrative
Orders to correct failures to meet final deadlines estab-
lished under the Act specify a time for compliance that
does not exceed the time determined to be reasonable, taking
into account the seriousness of the violation and any good
faith efforts to comply with applicable requirements.
Following receipt of (1) information concerning the type
of construction it proposes to use to meet treatment require-
ments and its NPDES permit, (2) the method of financing
that construction, and (3) permittee's estimate of the
time necessary to complete the necessary work, I will
determine what is a reasonable time for a to meet
pe.iait effluent limits and the statutory deadline.
(6) I will require certain information from the Permittee to
determine appropriate interim effluent limitations until the
final permit effluent limitations are required to be
CWA Compliance/Enforcement 6-70 Guidance Manual 1985
-------
Chapter Six Exhibit 6-6
Based on the above findings it is hereby ORDERED:
a shall, within days furnish responses to all
questions contained in Exhibit 1, including confirmation of
approval of Municipal Compliance Plan by the municipality
and send the responses to .
This order entered this day of » 198 , shall be
effective on receipt.
(Name and Title or Authorized
Signatory)
Note:
8 Pill in name of municipality.
b Describe current facility, e.g., primary.
c Applies only if subject to Section 3Ql(b)(l)(C) requirements.
° Does not apply if the Permittee is currently under order
to comply with interim limits and the order is not going
to be superseded. Revise paragraph if interim order is in
effect but further information is needed to confirm that
those limitations are still appropriate.
e Include only if appropriate. This sentence nay be modified to
show receipt of a S30KI) application and subsequent rejection.
Substitute language showing issuance of and subsequent
withdrawal of GCSL, if appropriate.
' Modify or expand if permit has expired but is currently
effective under applicable State or Federal law.
9 Include only if appropriate.
CWA Compliance/Enforcement 6-71 Guidance Manual 1985
-------
Chapter Six Exhibit 6-6
Exhibit 1 to this AO is identical to Enclosure I of Exhibit
6-1 attached to §308 letter requesting preparation of MCP.
CWA Compliance/Enforcement 6-72 Guidance Manual 1985
-------
Chapter Six Exhibit 6-6
Table BB to
Enclosure I
Proposed
Compliance
Schedule
Table BB
Date completed or
Work to be completed
1. Bnploy engineer to plan project
2. Approve Planning, including
obtaining State approval
3. Complete Plans 6 Specifications
4. Approve Plans S Specifications
including obtaining necessary State
(and EPA) approvals
5. Commence any required
real property acquisition or
condemnation proceedings
6. Obtain possession of acquired
or condemned property
7. Obtain financing, including
but not limited to awarding
of State and Federal
grants 1C any, and other
financial commitments
8. Advertise for bid "
9. Award construction contract _______^^_
10. Commence construction "~~~~~~~"~"~""^^~~
11. Complete construction
12. Commence Operations
13. Attain permit effluent limits
and full compliance with
S301(b) , Clean Hater Act
Note: Also include dates for progress reports on
principal anticipated events, e.g. construction and
equipment fabrication dates
CWA Compliance/Enforcement 6-73 Guidance Manual 1985
-------
I
I
a
a
ID
rt
s,
o
r|
rt
p
rr
A. KFPLUEMT LIMITATIONS
MONITOR! MS REQUIREMENTS
IXinny the period beginning anrl lasting through
the permittee is authorized to discharge Iron outfalls(s) serial nunber(s)
Such dischargers shall be limited and monitored by the permittee as specified below:
ATTACHMENT A
PERMIT LIMITS
6/30/77
1
«>l
•e-
fr
a
ff
§
Effluent Characteristic
Flow-m3/Day (MGD)
Discharge Limitations
Hoot tor ing Requirements
kg/day(Ibs/day) Other Units (Specify) Measurement Sample
Monthly Avg Weekly Avg Monthly Awg Weekly Awg Frequency Typ°
The pi I shall not be less than standard units nor greater than standard units and shall be monitored
There shall be no discharge of floating solids or uisble foam in other than trace amounts.
Sanples taken in compliance with the monitoring requiranenti specified above shall be taken at the following
location!s):
OS
ui
-------
Chapter Six
AO - Request for CCP
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION
IN. THE MATTER OF ) Docket No.
5 riNDINGS OF VIOLATIONS
Proceedings under Section 309 (a) (3) }
of the Clean Hater Act, as amended, ) AND
33 O.S.C. 1319UH3}, in re: NPDES )
Permit NO. ) ORDER FOR COMPLIANCE
STATUTORY AUTHORITY
This Order is issued pursuant to Section 309(a)(3) of the Clean
Water Act (the Act), 33 U.S.C. 1319(a)(3). Section 309(a){3) grants
the Administrator of the United States Environmental Protection
Agency (EPA) the authority to issue orders requiring persons
to comply with Sections 301, 302, 306, 307, 308, and 405 of the Act
and to comply with any conditions or limitation implementing any
of such sections in a National Pollutant Discharge Elimination
System" (NPDES) permit issued under Section 402 of the Act.
'This authority has been delegated to the Regional Administrator.
The Order is based on findings of violations of conditions of an
NPDCS permit issued under Section 402 of the Act relating to
compliance with section 301(b) of the Act.
FINDINGS
1) The a Una "Permittee"), is a
municipality which owns and operates a publicly owned treat-
ment works including a million gallon per day design
capacity wastewater treatment facility
which discharges to the , a water of
the United States.
2) On , a was issued NPDES Permit
No. (the permit) by '"' ' pursuant to
Section 402 of the Act 33, U.S.C. 1342. The permit became
effective on , 19 , and will expire
on , If . *~
CWA Conpliance/Enforcaient 6-75 Guidance Manual 1985
-------
Chapter Six Exhibit 6-6
3} The permit (Part I, Section A) requires the attainment of
the weefcly average, monthly average and other effluent
limitations listed in Attachment B (the permit limits) on
a continuing basis during the term of the permit.
4) Based upon my review of Discharge Monitoring Reports furnished
by permittee, I find that _____ a _ has consistently discharged
pollutants outside the effluent limitations stated in its
NPDES permit. (Specify Nos. and source (DMR, etc.) of most"
recent obtained information). I further find that these
discharges continue at this tine.
is in violation of the effluent limitations
of its NPDES permit
16) A preliminary diagnostic evaluation of facility effectiveness
was performed by _ at the request of EPA Region _ .
That evaluation, a copy of which is attached, indicates
that the following may be among the major causes of
permittee's failure to meet the permit limits:
Based on the abovei findings it is hereby ORDERED!
**^ a shall perform any and all needed corrective
action and achieve compliance with effluent limitations
as shown in Part I, Section A of the permit and in
Attachment B to this order within 30 days. The permittee
shall within 45 days notify me of the corrective actions
taken and certify that it believes the actions will result
in continuous future compliance with permit limitations.
Ib) If for any reason a is unable to complete necessary
corrective measures within the time called for in paragraph
.la, it shall prepare a Composite Correction Plan, (Plan)
as described in Attachment A, as follows:
(i) Within 45 days of the effective date of this order,
permittee shall furnish me with the following:
(A) a confirmation that it will prepare or employ a
consultant to prepare a Composite Correction Plan,
and a statement of the dates it proposes to stc t
and ccraplete the Plan. If the data for proposed
completion is after _ , permittee will
advise why it cannot complete the Plan by that date.
(B) a statement of the names of the persons who will
prepare and review the plan and information concerning
their qualifications to prepare and/or review the
plan and supervise its execution.
CWA Compliance/Enforcement 6-76 Guidance Manual 1985
-------
Chapter Six Exhibit 6-6
(11) Unless otherwise advised to the contrary within 30 days
of furnishing materials required under subdivision l(b)(il
of this order, a will commence preparation of the Plan
forthwith and shall complete the Composite Correction Plan
by 198 , or if not disapproved by EPA, by the
latar completion date proposed in response to question
IbHiMA). (Add clause calling for interim reporting, if
desired.) Permittee shall send a copy of the Plan and
proof of its acceptance by permittee within 45 days of the
required completion date, as determined above.
All responses are to be sent to .
A failure to comply with paragraphs la) or Ib) hereof
shall constitute a violation of this order.
This order entered this day, of , 198_, shall be
effective on receipt.
(Name and Title of Authorized
• • Signatory)
'Notes
a Name or permittee.
b Applies only if there has been a prelimary diagnostic
evaluation. Language cross referencing any reports, etc.,
which indicate problem sources or solutions may be
substituted, or entire sentence deleted.
® If the permit has expired but has been continued by
operation of law and the expired permit had 301(b)(l) limits,
add sentence showing continuing applicability of final
permit limits.
C»A Compliance/Enforcement 6-77 Guidance Manual 1985
-------
I
O
P>
•a
rr
n
01
H-
N
n>
rt"
P
nt
o
H
n
A
P
A. EFFLUENT LIMITATIONS AND MDNITORINQ RflQUIKEMCNTS
During the period beginning and lasting through
the permittee is authorized to discharge (ran outfalls(s) serial numbar(a)
Such dischargers shall be limited and monitored by the permittee as specified below:
ATTACHMENT B
PERMIT LIMITS
•**
00
Effluent Characteristic
(M3D)
Discharge Limitations
Mori J tog ing Requlranents
kg/day(lbs/day) Other Units "(Specify) Heasurement Sample
Monthly Awg Meekly Avg Kunthly Aug Meekly A«g Frequency Type
e.
to
n
*
The pli shall not be less than standard units nor greater than standard units and shall be monitored
Tliere shall be no discharge of floating solids or visble foan in other than trace amounts.
Samples taken in compliance with the monitoring requiranents specified above shall be taken at the following
locationisl;
00
Ul
-------
Chapter Six , Exhibit 6-6
Attachment
Diagnostic
Evaluation
Attachment
(Preliminary)
DIAGNOSTIC EVALUATION
CW4 CoBplianee/lnforceaent 6-79 ftiidance Manual 1985
-------
Chapter Six Exhibit 6-6
ATTACHMENT A
Composite Correction
Plan Instructions
COMPOSITE CORSECTION PLAN
I. INTRODUCTION
The Composite Correction Plan (CCP) is designed to identify
and correct those areas in a POTW which are limiting the plant's
ability to comply with its NPDES permit effluent limitations.
The CCP is a two step process which should provide the most
economical method to improve POTW performance. The approach
consists of an evaluation.step and a plan development step.
The evaluation step is a thorough review and analysis o£ a
POTW's design capabilities and the associated administration,
operation and maintenance practices. It is conducted to provide
information upon which to make decisions regarding efforts to
improve performance.i The primary objective is to determine if
significant improvement in treatment can be achieved without
making major capital improvements. This objective is accomplished
by assessing the capabilities of key unit processes and by
identifying and prioritizing the factors which limit performance
and which can be corrected.
The plan development step uses the results of the evaluation
to develop step by step instructions to correct each deficiency
identified in the evaluation. The plan also must include a
detailed scheduled for implementation and an associated itemized
cost estimate.
CWA Compliance/Enforcement 6-80 Guidance Manual 1985
-------
Chapter Six Exhibit 6-6
1. QUALIFICATIONS OF PREPARER
The below mentioned evaluation and plan may be prepared by staff
from the municipality if qualified personnel are available. Such
staff qualifications shall include training and experience in
evaluating the design, construction, operation, maintenance and
management of sewage treatment plants. If no such staff are
available, the preparer shall be an engineering consultant with
the above stated qualifications. In any case, the plan must be
either prepared or reviewed by a professional engineer licensed
for this type of analysis in the State where the plant is located.
2. IN-DEPTH DIAGNOSTIC EVALUATION
The Composite Correction Plan shall be prepared using the results
of an in-depth diagnostic evaluation of the plant's ability to
meet its permit effluent limits. This evaluation shall at a
minimum include:
a. A review of the plans and specifications as currently
constructed. (Also a review of the results of EPA's or
State's preliminary evaluation of the facility, if
appropriate)
\ ,
b. A review of all aspects of the current operations and
maintenance practices at the plant.
c. A review of all influent loading data in both quality
and quantity including where appropriate a review of all
industrial contributors to the plant and their pretreatraent
requirements.
d. A review of all sludge handling practices at the plant.
e. A review of the staffing, training, management, budge't,
and financial accounting at the plant, including and evaluation
of the user charge system currently in effect.
f. A review of all recent sampling, preservation and
laboratory analysis and associated records used for determining
in-plant process controls and compliance with the permit
effluent limitations.
g. A review r«f other significant factors affecting compliance
which are u lique to the plant.
CWA Compliance/Enforcement 6-81 Guidance Manual 1985
-------
Chapter Six Exhibit 6-6
3. CONTENT OF COMPOSITE CORRECTION PLAN
The Composite Correction Plan prepared using the above evaluation
shall address all factors which are currently limiting or which
could limit plant operating efficiency and the plant's ability to
meet its permit effluent limitations. The plan shall include the
following information:
a. A list of all factors which are limiting the plant's
treatment capability.
b. An estimate of the effluent quality which the treatment
plant is theoretically capable of achieving If all plant
operations are optimized.
c. Specific, proposed actions to correct each limiting
factors, including where appropriate specific changes to
operating, maintenance, staffing, user charge system, sludge
handling, pretreacmenc or budgeting practices or any other
change which will optimize plant performance. Such proposed
actions shall include capital improvements to the existing
physical plant where appropriate.
d. A proposed schedule and cost estimate for implementing
each change, including the date for full permit compliance.
This schedule shall include specific dates by which each
change will be initiated and completed.
e. A certificate showing the method of financing any capital
improvements or any other portions of the activities listed
in paragraph c which will not be furnished from current
receipts.
CWA Compliance/Enforcement 6-82 Guidance Manual 1985
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Chapter Six Exhibit 6-6
Attachment
(Form of
Certification)
Worn of. Certification
A. For use at all plants but most appropriate at large plants
(where signatory has ultimate responsibility but lacks
direct control or specific knowledge of details):
I certify under penalty of law that this document
and all attachments were prepared under my
direction or supervision in accordance with a
system designed to assure that qualified personnel
properly gather and evaluate the information
submitted. Based on my inquiry of the person or
persons who manage the system, or those persons
directly responsible for gathering the information,
tie information submitted is, to the best of ray
knowledge and belief, true, accurate, and complete.
I am aware that there are significant penalties
for submitting false information, including the
possiblility of fine and imprisonment for knowing
violations.
(40 CFR 122.22{d); 48 FR 39619, Sept. 1, 1983)
B. Alternate form. Appropriate for use at smaller plants (where
signatory has direct control over and specific knowledge of
details):
I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true and
correct. Executed on (date).
(28 O.S.C. 1746}
CWA Cottpllance/Enforcement 6-83 Guidance Manual 1985
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Chapter Six Exhibit 6-7
Model Notice of Deficiency
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Region
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
John Doe
Plant Manager
Smith Industries, Inc.
36 Sunshine Drive
Clark, VA 24077
RE: Notice of Deficiency
EPA Identification No,
Smith Industries, Inc.
Dear Mr. :
The Environmental Protection Agency (EPA) has conducted an initial
review of your permit application submitted on December 22, 1982, for
an NPDES permit at the facility referenced above. This phase of our
review was conducted to determine whether information submitted in
your application was complete in accordance with the requirements of
40 C.F.R. Part 122. Upon determining that the application Is
complete, EPA will conduct a thorough technical review.
After reviewing the submitted material, we have determined that the
application is deficient and have specified additional Information
needed to make it complete. A copy of our comments is enclosed. It
is our intent that these comments assist you in the preparation of a
complete NPDES application.
If you have any questions regarding the review of your application or
if you desire a meeting with EPA, please contact of my staff
at the above address or at (telephone //). All correspondence should
reference the EPA Identification Number.
Sincerely,
Jane Jones, Director
Water Management Division
Enclosure
CWA Compliance/Enforcement 6-84 Guidance Manual 1985
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Chapter Seven
Administrative Enforcement Actions:
Civil Penalty Provisions
Chapter Contents Page
CWA Compliance/Enforcement 7-1 Guidance Manual 1985
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Chapter Seven Contents
CWA Compliance/Enforcement 7-ii Guidance Manual 1985
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Chapter Seven
Administrative Enforcement Actions:
Civil Penalty Provisions
As of this writing, the Glean Water Act does not provide for the assessment
of administrative civil penalties, except for penalties under Section
3H(j)(2) for failure to have, update, or implement an individual oil or
hazardous substance contingency plan. The President's authority to assess
these penalties has been delegated to the EPA Administrator.
CWA Compliance/Enforcement7^1Guidance Manual 1985
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Chapter Seven Administrative Enforcement Actions
CWA Compliance/Enforcement 7-2 Guidance Manual 1985
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Chapter Eight
Judicial Enforcement: Civil Actions
Chapter Contents Page
1 Introduction 8-1
Statutory Authority 8-1
2 Elements of aViolation; Civil 8-5
Evidence in Support of Civil Actions 8-5
3 Procedures for Filing Actions 8-9
Preparation of the Referral Package 8-9
Interrelationship of Referral Process, Litigation, and
Negotiations 8-13
Filing the Complaint 8-14
Injunetive Relief 8-15
Discovery 8-18
Issues That Are Not Reviewable at Trial 8-18
Motion for Summary Judgment 8-19
4 Consent Decrees 8-21
Contents of the Consent Decree 8-21
5 Citizen Suits [Reserved] 8-25
CWA Compliance/Enforcement 8-1 Guidance Manual 1985
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Chapter Eight Contents
6 Exhibits 8-27
8-1: Model Civil Litigation Report Outline and Guide 8-29
8-2: Sample Complaint for Industrial Discharger 8-38
8-3: Sample Complaint for Municipal Discharger 8-50
8-4: Sample Pretreatment Complaint 8-58
8-5: Sample Motion for Preliminary Injunction 8-67
8-6: Sample Request for Admissions 8-69
8-7: Sample Notice of Deposition Upon Oral Examination 8-73
8-8: Sample Interrogatories 8-76
8-9: Sample Request for Production of Documents 8-95
8-10: Sample Motion for Summary Judgment 8-107'
8-11: Sample Industrial Consent Decree 8-135
8-12: Sample Municipal Consent Decree 8-153
8-13: Sample Pretreatment Consent Decree 8-161
CWA Compliance/Enforcement 8-ii Guidance Manual 198S
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Chapter Eight
1 Introduction
In addition to administrative enforcement responses, the Administrator may
initiate civil judicial actions under the Clean Water Act's enforcement
provisions. Such civil judicial actions may be used to compel compliance
with the CWA's statutory and regulatory requirements as well as to seek
civil judicial penalties. If one or more of the following factors are
present, a civil judicial action is generally preferable to issuing an
administrative order:
* A person has failed to comply with an administrative order;
* EPA must immediately stop or require continuance of a person's
conduct (e.g., continue treatment of a discharge) to prevent
irreparable injury, loss, or damage to the waters of the United
States;
» EPA must compel long-term compliance;
* A judicial action will deter others from violating the requirements
of the Act; or
• Violators have gained substantial economic benefit from aces of
noncompliance because administrative penalties are not available
under Section 309 of the CWA.
Statutory Authority
Section 309(b) of the CWA authorizes the Administrator to commence a civil
action for appropriate relief, including a permanent or temporary injunc-
tion, for any violation for which he or she is authorized to issue an
administrative compliance order under Section 309(a). Section 309(a)(3)
authorizes compliance orders for violations of Sections 301, 302, 307, 308,
318, or 405 or for violations of conditions or limitations in a Section 402
or Section 404 permit implementing these sections. Before bringing a judi-
cial enforcement action, EPA may notify the violator and the applicable
state and may give the state 30 days to bring its own enforcement action.
As a matter of Agency policy, EPA provides prior notification to states and
CWA Compliance/Enforcement 8-1 Guidance Manual 1985
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Chapter Eight Introduction
consults with them before taking action. (See "Implementing the State/
Federal Partnership in Enforcement: State/Federal Enforcement
'Agreements,'" issued June 26, 1984.)
Section 309(d) provides that violations of these sections, of an adminis-
trative order, or of permit conditions implementing these sections give
rise to liability for civil penalties of up to $10,000 for each day of each
violation. EPA may commence both administrative and judicial enforcement
for the same violations.
The federal district court in which the defendant is located, resides, or.
is doing business has jurisdiction to restrain such violations. The gov-
ernment must give notice of any federal enforcement action to the affected
state. Section 309(b) establishes the venue of Section 309 actions as "the
district court of the United State in which the defendant is located or
resides or is doing business."*
Typical CWA judicial enforcement cases involve discharges without an NPDES
permit or a Section 404 permit or violations of NPDES permit effluent
limitations. EPA may also address violations of pretreatment standards,
prohibitions, or requirements through these authorities. When EPA files
suit against a publicly owned treatment works (POTW) or other municipally
owned or operated facilities, it also must join the state under Section
309(e).
Section 309(f), added in the 1977 Amendments to the CWA, authorizes a sep-
arate civil action for violation of pretreatment requirements. If the
owner or operator of a treatment works (generally a POTW) does not commence
appropriate enforcement action within 30 days of the Administrator's noti-
fication of a pretreatment violation by a source discharging into the POTW,
the Administrator may commence a civil action for appropriate relief,
including but not limited to a permanent or temporary injunction against
the POTW owner or operator and the industrial user.
Section 402(h) provides for injunctive relief where a POTW permit condition
is violated by authorizing EPA or an approved state to commence an enforce-
ment action to restrict or prohibit the introduction of any pollutant into
such treatment works by a source not using such treatment works prior to
the finding that such condition was violated.
Section 31i(b)(3) prohibits the discharge of oil or hazardous substances in
"harmful quantities" (see 40 C.F.R. §§110.3, 116.4, and 117.3) and author-
izes EPA to bring a civil action in district court for such hazardous
substance discharges and to obtain up to $50,000 in penalties. (The Coast
Guard has authority to assess an administrative civil penalty of not more
than $5,000 for oil discharges.) Where such discharge resulted from
willful negligence or willful misconduct, liability may increase up to
$250,000. This larger penalty is available only for hazardous waste dis-
charges. Civil penalties may not be assessed under both Section 311 and
* The same standard is adopted by Section 3il(b)(6)(B) for Section 311
cases.
CWA Compliance/Enforcement 8-2 Guidance Manual 1985
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Chapter Jight Introduction
Section 309. (Note that discharges under Section 311 exclude those dis-
charges permitted under Section 402 or identified in an NPDES permit
application and "caused by events occurring within the scope of relevant
operating or treatment systems.")
Section 311(c) authorizes the United States to remove and recover the oil
or hazardous substances and to recover the costs of removal under Section
311(b)(6)(D), up to the limits established in Section 311(f).
Section 504 provides for injunctive relief if a water pollution source or
combination of sources presents an imminent and substantial endangerment Co
the health or welfare (i.e., livelihood) of persons. The venue of Section
504 actions is "the appropriate district court." Relief is legally avail-
able under this section independent of whether a source is complying with
permit requirements. Where a cause of action under Section 504 is taken,
it often accompanies an enforcement action under Section 309(b). Civil
penalties are not available under Section 504.
CWA Complfance/Enforcement 8-3 Guidance Manual 1985
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Chapter Eight Introduction
CWA Coapliance/Enforcenent 8-4 Guidance Manual 1985
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Chapter Eight
2 Elements of a Violation: Civil
Evidence in Support of Civil Actions
Evidence that can be presented to a court in accordance with the Federal
Rules of Evidence is necessary to support each element of a civil cause of
action. Therefore, before a civil action is filed, each element of the
offense should be reviewed to ensure that there is competent evidence to
support each element of the violation. Note that certain matters may not
be easily established at trial as may first appear (e.g., the existence of
a partnership and the number of days in violation).
The following is a list of general evidentiary showings that should be met
to prove the most common civil actions arising under the CWA.
General Requirements for Civil Actions Brought Under Section 309
Violations of Section 301(a). The elements of proof in a Section 301 case
(basically for a discharge not authorized by a permit or for permit
violations) are the following:
• The defendant is a person within the meaning of the CWA [see
Section 502(5)];
• The defendant discharged pollutants within the meaning of the CVJA
[see Sections 502(12) and 502(6)] for each day alleged; and
• Such actions were not in compliance with Sections 301, 302, 306,
307, 318, 402, or 404 of the CWA, or a permit condition
implementing these sections.
Note that under Section 402(k), compliance with a validly issued NPDES
permit generally constitutes compliance, for purposes of Section 309, with
Sections 301, 302, 306, and 403. (This does not include, however, Section
307 toxics standards, a Section 311 spill, or Section 504 imminent and
substantial endangerraent. The perrait-as-a-shield rule is discussed in more
detail in Chapter Eleven.)
CWA Compliance/Enforcement 8-5 Guidance Manual 1985
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Chapter Eight Elements of a Violation; Civil
The most common violations occur under Sections 301 and 402 (i.e.» either
discharging without an NPDES permit or violating the limitations or condi-
tions of an NPDES permit). For violations of Section 301 concerning unper-
mitted discharges, the government need only prove that the defendant has
not been authorized to discharge pollutants but has done so. For viola-
tions of Section 301 concerning permit violations, however, the government
must plead the terms of the permit being violated and demonstrate the
defendant's noncompliance with those terms. Because the CWA is a strict
liability statute, neither a showing of intent [United States v. Earth
Sciences. 599 F. 2d 368, 374 (10th Cir. 1979)] nor a showing of environmen-
tal harm [Crown.Simpson.Pulp Co. v. Costie, 642 F. 2d 323, 328 (9th Cir.),,
cert, denied. 454 U.S. 1053 (1981)] is required for liability to attach in
Section 309 civil actions.
Violations of Section 309 Orders. In actions that also address violations
of a Section 309(a) administrative order, EPA must demonstrate the exis-
tence of a valid administrative order and the defendant's noncompliance
with the order. Note that Section 309 explicitly only authorizes civil
penalties (as opposed to injunctive relief) as relief available to address
administrative order violations. This does not preclude application for
injunctive relief to correct the underlying violations that were the basis
of the administrative order.
Violations of Section 307(d). In a Section 307(d) pretreatment case, EPA
must plead the applicable pretreatment regulations—either a categorical
standard or a requirement in the general pretreatment regulations, such as
a violation of the general prohibitions under 40 C.F.R. §403.5—as well as
the defendant's violations of those regulations. Note that pretreatment
reporting violations are violations of Section 308, and not Section
307(d). Since the majority of industrial users are subject to both elec-
troplating categorical standards (due April 27, 1984 for non-integrated
facilities and June 30, 1984 for integrated facilities) and metal finishing
categorical standards (due February 15, 1986), EPA should ensure that the
treatment for electroplating will be consistent with the treatment needed
to meet the metal finishing requirements by the metal finishing deadline.
(This will help avoid relitigation for violations of metal finishing
standards.)
In an enforcement case involving alleged violation of pretreatment catego-
rical standards, a defendant may argue that he or she is entitled to
removal credits pursuant to Section 307(b)(l) and 40 C.F.R. §403,7 (i.e., a
credit for the extent to which the POTW can treat the indirect discharge).
Unless the POTW has applied for and been granted removal credits, such an
argument is not a defense.
POTW Violations of Requirements for Local Pretreatment Program. If the
POTW is required to prepare a local pretreatment program for approval by
EPA or the state (if the state has an approved pretreatment program) and
implement that program, this requirement must be contained in the POTW's
CWA Compliance/Enforcement 8-6 Guidance Manual 1985
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Chapter Eight Elements of a Violation; Civil
NPDES permit to place EPA in the strongest enforcement posture.* Sections
309(b) or 309(f) may provide a federal cause of action in limited circum-
stances even if the requirement is not in a permit, particularly if the
POTW has other permit violations or there are industrial user violations
exacerbated by the absence of a pretreatment program. Note that a POTW
with an approved local program is expected to take an active enforcement
role.
In some cases, a POTW may have both NPDES permit and pretreatment viola-
tions. In general, EPA should enforce against all available violations in
a single action. However, in certain circumstances, EPA may wish to pursue
only the pretreatment violations, and preserve its right to enforce subse-
quently against the NPDES violations. To minimize any res judicata prob-
lems, the complaint should include only the facts necessary to support the
pretreatment violations.
The government may decide to proceed simultaneously against a POTW and an
indirect discharger violating general pretreatment prohibitions, categor-
ical standards, or properly adopted local limits.
Violations of Section 404. EPA may bring a Section 404 case if there has
been a discharge without an Army Corps of Engineers (Corps) or state-issued
permit or for the violation of a state-issued permit. Where a Corps permit
has been violated, the Corps has primary enforcement responsibility. In
these cases, the enforcing agency must prove the discharge occurred without
any authorizing dredged or fill material permit under the appropriate
regulatory definition. (The EPA definitions are provided at 40 C.F.R.
§233.3.) Note that under Section 404(p), compliance with a valid dredged
or fill permit generally constitutes compliance with Sections 301, 307, and
403 of the CWA.
General Requirements for Civil Actions Under Section 311
In a Section 311 discharge case, EPA must prove that the defendant dis-
charged a harmful quantity of oil or a reportable quantity of hazardous
substance into the waters of the United States, an adjoining shoreline, a
contiguous zone, or an open ocean if the resources of the United States are
affected, and that the discharge occurred within a 24-hour period.
Hazardous substances are defined at 40 C.F.R. §116.4 and reportable quanti-
ties are defined at 40 C.F.R. §117.3. The courts have held that due care
provides no defense to liability (See e.g., United States v. Coastal States
Crude Gathering Co.. 643 F. 2d 125 (5th Cir. 1981).
The cause of action here is for violation of a permit condition imposed
under Section 402(b)(8) for the purpose of implementing Section 307.
CWA Compliance/Enforcement 8-7 Guidance Manual 1985
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Chapter Eight
3 Procedures for Filing Actions
The Assistant Administrator for OECM (or the Assistant Administrator's
delegatee), refers requests for CWA civil judicial actions to the Depart-
ment of Justice (DOJ), unless direct referral from the Regional Office is
permitted.* In most instances, the designated lead Agency regional attor-
ney prepares a referral package with technical support from the Regional
water program office.** The Regional Administrator signs the referral
package and forwards it to OECM (with a copy to the appropriate
Headquarters program office).
Preparation of the Referral Package
The referral package should contain a referral memorandum and a civil liti-
gation report.
Referral Memorandum
A referral memorandum identifies the primary elements of the proposed liti-
gation. Specifically, the memorandum should include the following items:
• Identification of the potential defendants;
• Brief factual summary of the case;
* The Regional Office also has independent authority to refer requests
for emergency temporary restraining orders under the Act to the Depart-
ment of Justice and the appropriate United States Attorneys Office.
When exercising this authority, however, the Regional Administrator
must notify the Assistant Administrator for OECM (or the Assistant
Administrator's designee).
** Headquarters program and Enforcement Counsel staff may participate more
actively in the case development process if precedential or nationally
significant issues are involved. See "EPA Policy on Nationally Managed
or Coordinated Enforcement Actions," January 4, 1985.
CWA Compliance/Enforcement 8-9 Guidance Manual 1985
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Chapter Eight Procedures for Filing Actions
• Identification of the major issues (including potential problems
that may exist with the case);
* Status of past Agency enforcement efforts; and
* Names of regional legal and technical staff and the DOJ attorney
who are involved in the case, including the lead attorney.
Civil Litigation Report
In addition to the referral memorandum, the referral package must contain a
civil litigation report (signed by the designated lead EPA attorney) and
supporting documents. (See Exhibit 8-1 for a complete outline and guide to
preparing the report.) The report must include the following items;
* A draft complaint;
• Sections of the CWA and regulations that have been violated;
* A description of the evidence sufficient to prove each element of
the violation, Including a copy of documentary evidence and a
summary of expected expert testimony;
» A description of attempts to resolve the violation, including a
description of any administrative action taken to date;
• Any past, anticipated, or pending state or federal actions (admin-
istrative or Judicial) against the violator;
» Evaluation of potential defenses and how the government would
refute them;
» List of equities that may weigh against granting the relief;
* Evaluation of any issues of national or precedential significance;
• Description of environmental harm or other factors that justify
prosecution;
* Description of the pollution control remedy to be sought; and
» Discussion of an acceptable civil penalty settlement figure and
potential for settlement.
In 'addition, it may be appropriate to include an enforceable draft consent
decree that:
• Provides for compliance as expeditiously as practicable;
• Is in accordance with requirements of applicable statutes, regula-
tions, and policies;
CWA Compliance/Enforcement 8-10 Guidance Manual 1985
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Chapter Eight Procedures for Piling Actions
* Contains adequate reporting and testing provisions;
* Includes an appropriate termination date or specifies some other
process for concluding the court's jurisdiction;
* Includes an appropriate penalty in accordance with the applicable
penalty policy; and
* Otherwise comports with "Guidance for Drafting Judicial Consent
Decrees" (see GeneralEnforcement Policy Compendium, GM-17) and
"Guidelines for Enforcing Federal District Court Orders in
Environmental Cases" (see General EnforcementPolicy Compendium,
GM-27). (For municipal cases, see also "Municipal Enforcement
Guidance," October 25, 1984.)
Civil Penalty Amount. The litigation report should state the maximum pos-
sible civil penalty, which is calculated on the basis of the number of
violations, multiplied by the number of days of violation, multiplied by
$10,000. The report should also contain the "Initial penalty target
figure." As provided in the IPA "Civil Penalty Policy," July 8, 1980,
(contained in the Water Compliance/Enforcement PolicyCompendium), and the
"Guidance for Calculating the Economic Benefit of Noncompliance for a Civil
Penalty Assessment," November 5, 1984, contained in the General Enforcement
Policy Compendium, GM-33, this figure includes the economic benefit factor
(i.e., benefit gained fron delayed compliance) plus the adjusted gravity
factor. This figure represents the Agency's first settlement goal. The
gravity figure may be adjusted during negotiations as more information
becomes available. However, the economic benefit figure should not be
adjusted downward unless EPA obtains more accurate, verifiable information
that would justify recalculation of economic benefit. Because the minimum
acceptable figure is usually lower than the maximum statutory amount, EPA
and DOJ negotiators must guard this minimum sum in the strictest confidence
so that the potential for maximum penalties serves as an impetus for the
violator to settle.
EPA issued a new Civil Penalty Policy on February 16, 1984 (contained in
the General Enforcement Policy Compendium, GM-21). EPA is developing a
CWA-specific penalty policy to implement the new policy.
Enforceable Consent Decree. The report may include a draft consent decree
designed to secure compliance as expeditiously as practicable. If the dis-
charger has agreed to a settlement, the decree should accompany the re-
port. [Note that any offer of settlement to a potential defendant should
be discussed with OECM staff before being released. See "Headquarters
Review and Tracking of Civil Referrals" (March 8, 1984) and "Implementation
of Direct Referrals for Civil Cases Beginning December 1, 1983," (November
28, 1983) contained in General Enforcement Policy Compendium, GM-26 and 18,
respectively.] If the source has not agreed to settle, the draft decree
should contain schedules and other agreements most favorable to Che Agency
because the draft decree will represent the starting point for negotia-
tions.
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Chapter Eight Procedures for Filing Actions
The contents of a consent decree ultimately depend upon the underlying vio-
lation and the circumstances under which the violation will be remedied.
Section 4 of this chapter discusses the terms of a settlement agreement in
greater detail. In addition. General Enforcement Policy Compendium
documents GM-17 and (M-27 should be reviewed when preparing consent
decrees*
Headquarters and Department of Justice Review
Once the referral package i§ received by Headquarters, Enforcement Counsel
attorneys will conduct a limited final legal review to ensure completeness,
accuracy, and consistency with applicable Agency enforcement policies. The
Headquarters water program office provides a technical and program policy
review of litigation reports. Headquarters will transmit the case to DOJ.
OECM will notify the Regional Administrator upon the transmittal of the
civil referral.
Following the referral of a case, the lead EPA attorney will be responsible
for coordinating responses to all requests for supplemental information by
DOJ or the U.S. Attorney's office. The lead Agency attorney also will be
responsible for keeping program officials, the Office of Public Affairs,
and other previously Involved Agency attorneys apprised of case
developments. After EPA refers the case to DOJ, DOJ prepares the necessary
court papers and gathers information needed to support a court action
(sometimes in conjunction with the local Assistant U.S. Attorney) and then
sends the case to the U.S. Attorney for filing.
Direct Referrals
On September 29, 1983, EPA and DOJ agreed to permit Regional Offices to
refer certain cases directly to DOJ without Headquarters concurrence. In
those cases the Regions should send referral packages to the Assistant
Attorney General, Lands and Natural Resources Division, Department of
Justice, P.O. Box 23495, Washington, D.C. 20026. The Regions may directly
refer the following cases under the CWA:
* Cases involving discharges without a permit by industrial
dischargers;
» All cases against minor industrial dischargers;
» Cases involving only failure to monitor or report by industrial
dischargers;
* Referrals to collect stipulated penalties from industrial dis-
chargers under consent decrees; and
» Referrals to collect administrative penalties under Section 311(j)
of the CWA.
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Chapter Eight Procedures for Filing Actions
See "Implementation of Direct Referrals for Civil Cases," November 28,
1983, contained in the General Enforcement Policy Compendium, GM-18.
Regional Offices should send copies of direct referrals simultaneously to
OECM and the Headquarters program office. If elements of a referral
include national or precedential!/ significant issues, or otherwise do not
fall within these guidelines, the Regional Office must refer the case to
EPA Headquarters.
Enforcement Docket System
Regional and Headquarters staff enforcement attorneys must enter and track
all civil judicial cases in the EPA Enforcement Docket System. Guidance on
docket procedures is contained in the March 8, 1984, memorandum entitled
"Headquarters Review and Tracking of Civil Referrals," which is contained
in the General Enforcement Policy Compendium, GM-26.
Guidance Documents on Case Development Procedures
Agency employees who are involved in the investigation and referral to DOJ
of CWA civil judicial actions should familiarize themselves with the Agency
documents listed below. These documents are contained in the General
Enforcement Policy Compendium;
• Memorandum of Understanding Between the Department of Justice and
the Environmental Protection Agency (June 15, 1977) GM-3;
• Quantico Guidelines for Enforcement Litigation (April 8, 1982)
GM-8;
• General Operating Procedures for EPA's Civil Enforcement Program
(July 6, 1982) GM-12;
• Working Principles Underlying EPA's National Compliance/Enforcement
Programs (November 22, 1983) GM-24;
• Case Referrals for Civil Litigation (September 7, 1982) GM-13; and
• Headquarters Review and Tracking of Civil Referrals (March 8,
1984) GM-26.
Interrelationship of Referral Process, Litigation, and Negotiations
Concurrently with the preparation of the civil litigation report, the
referral process, and the pendency of litigation, the government may con-
duct negotiations with the violator aimed at settling the case. The vast
majority of CWA cases are settled by negotiation. However, litigation
reports must be prepared and negotiations must be conducted on the
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Chapter Eight Procedures for Filing Actions
assumption that the case will eventually go to trial and will require proof
of each element of violation, as well as support for the civil penalty and
injunctive relief sought.
Before beginning settlement negotiations, the federal government's litiga-
tion team must agree upon what constitutes an acceptable settlement. The
team must know what pollution-control remedies are required, the schedule
for compliance, the penalty figure, and any other facility-specific
requirements either necessary or desirable to abate the pollution and to
monitor compliance.
Filing the Complaint
The civil action commences with the filing of a complaint (Federal Rules of
Civil Procedure, Rule 3). The complaint may be filed in the U.S. district
court in which the violation occurred or in which the defendant resides or
does business.
Complaints are governed by the General Rules of Pleading established by
Rule 8 of the Federal Rules of Civil Procedure. Complaints must state a
cause of action (i.e. , the complaint must allege facts that constitute a
violation of the CWA).
Complaints are filed on behalf of the United States of America. Conse-
quently, the complaint should be styled as "United States v. Polluter"
rather than "Environmental Protection Agency v. Polluter" or "(Name of EPA
Administrator) v. Polluter." In filing a complaint, EPA should consider
joining corporate officials or city officials, in addition to the corpora-
tions and cities themselves. EPA should also consider joining the parent
corporation of a defendant subsidiary.
The complaints must also state the grounds upon which the court's jurisdic-
tion lies. Usually, the government asserts federal court jurisdiction
under Section 309 of the CWA, 28 U.S.C. §1331 (the "federal question"
jurisdiction when the amount in controversy exceeds $10,000), 28 U.S.C.
§1345 (the United States as a plaintiff), and 28 U.S.C. §1355 (when the
government seeks a civil penalty).
Complaints must also contain a demand for relief. CWA complaints generally
request both injunctive relief and the imposition of civil penalties. Once
the government files a complaint, the source is potentially liable for pay-
ment of penalties and must report the potential liability to shareholders
and the Securities and Exchange Commission in its "10-K" form. This
requirement does not apply to closely held corporations, which are often a
major problem. Shareholder pressure may help force the company's officers
to settle sooner. A filed complaint can improve the quality and timing of
a settlement because the source is faced with a trial and potentially large
penalties.
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Chapter Jight Procedures for Filing Actions
Exhibits 8-2 and 8-3 contain sample complaints used in industrial and muni-
cipal enforcement cases, respectively.
In addition, on October 17, 1984, EPA issued "Model Pretreatment Complaints
and Consent Decrees." The model complaints address the following pretreat-
ment violations:
• Failure of an industrial user to submit a baseline monitoring
report (BMR) — Industrial user as defendant;
* Failure of a POTW to submit a pretreatment program — POfW and
state as defendants;
• Failure of an industrial user to meet categorical standards —
industrial user as defendant; and
• Failure of an industrial user to meet categorical standards —
industrial user, POTW, and state as defendants.*
Exhibit 8-4 contains a sample pretreatment complaint alleging violations of
categorical pretreatment standards and national prohibited discharge
standards, and alleging failure to submit a BMR and other pretreatment
reports.
Injunctive Relief
EPA generally seeks injunctive relief to obtain compliance with permit
limitations or conditions or other CWA requirements. Injunctions are an
equitable form of relief within the discretion of the court. (See United
States v. Romero-Barcelo. 456 U.S. 305 (1982).]
In seeking injunctive relief in NPDES permit violation cases, EPA generally
requests a compliance schedule for meeting the required pollution control
and final compliance dates. This will include interim effluent limitations
that will ensure the greatest amount of pollution control reasonably
achievable. In addition to specifically requiring compliance with effluent
limitations, EPA may also require certain actions and practices including
sampling, monitoring, and reporting requirements. Should the discharger
fail to comply, the court order, if entered on consent, should include
stipulated penalties.
The reader may obtain the sample complaints in the October 17, 1984
memorandum from the Office of Enforcement and Compliance Monitoring,
Associate Enforcement Counsel for Water Enforcement, LE-134W,
Washington, D.C. 20460.
CWA Compliance/Enforcement 8-15 Guidance Manual 1985
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Chapter Eight Procedures for Filing Actions
The government must prove that there was a violation of the CWA and that
there is no adequate remedy at law (e.g., civil penalties are not adequate
to "right the wrong" because they will not mitigate the environmental harm
caused by the defendant's violation). The remedy should correct the viola-
tions without being unnecessarily burdensome to the defendant. However,
the government need not necessarily prove irreparable injury. ISee, e.g.,
Bowles v. Huff. 146 F. 2d 428 (9th Cir. 1944).]
In the case of municipal defendants, it is usually advisable to determine
the financial capability of the defendant to finance the injunetive
relief. While financial inability of a defendant does not, by itself,
constitute a reason not to take enforcement action, it is. proper for the
government to consider financial ability or inability in determining its
priorities in demanding relief. In some cases a defendant's financial or
other inability to comply may require that the defendant cease operations
[U.S. Steel v. Train. 556 F. 2d 822, 838 (7th Cir. 1977]. Where the
defendant is a POTW, such a result would always be counterproductive in
terms of pollution control. More appropriate remedies may include the
following:
• An order to develop a financial plan for achieving compliance as
expeditiously as possible;
• An order compelling maximum use of existing facilities until final
compliance can be achieved;
• An order containing an extended compliance schedule that takes into
account the municipality's financial situation;
• An order requiring initiation and prosecution of a legal action to
recover from other responsible parties, such as the architect/
engineer, contractor, or manufacturer (perhaps with EPA technical
and legal assistance under Section 203(a) of the CWA); and
• An order prohibiting the POTW from accepting new contributors until
it is able to treat the additional wastes adequately [See Section
402(h)J.
Note that the "National Municipal Policy," January 23, 1984 (contained in
Water Compliance/Enforcement Policy Compendium) expects compliance with
secondary treatment by no later than July 1, 1988, For further guidance,
see this policy as well as "Municipal Enforcement Guidance," October 25,
1984.
When injunctive relief may result in prohibiting a discharger from
operating, EPA must show that the discharger either seriously or imminently
threatens public health or causes substantial and unavoidable nonhealth
injuries [Harrison v. Indiana Auto ShreddersCo.. 529 F. 2d 1107 (7th Cir.
1975; Clean Air Act case)].
CWA Compliance/Enforcement 8-16 Guidance Manual 1985
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Chapter Eight Procedures for Filing Actions
An Injunction operates in personam (meaning "against the particular
person"), so that the district court in which the motion is filed must have
JJQ personam Jurisdiction over the party against whom the injunction is
sought. Usually this means that the person or corporation who is the
defendant must live or have a place of business within the state. Further,
service of process, or the delivery of written notice, is subject to the
territorial limits of the state in which the district court is located
unless otherwise provided for in a statute. [See also, Federal Rules of
Civil Procedure, Rule 4(f).]
Temporary Restraining Order
A temporary restraining order (TRO) is an order of a court that prohibits
or Units specified acts of a defendant. The TOO operates for no more than
ten days, unless extended for good cause for another ten-day period, or a
longer period if the party against whom the order Is directed consents to
the longer period. [See Federal Rules of Civil Procedure, Rule 65(b).]
To obtain a TRO, EPA must prove from specific facts shown by affidavit or
by the verified complaint that immediate and irreparable injury, loss, or
damage will result before the adverse party (the discharger) can be heard
in opposition. The ex parte nature of TROs distinguishes them from other
court orders. EPA must certify in writing the efforts, if any, the Agency
made to give notice of the hearing to the adverse party.
A draft TRO should accompany the motion. When a court grants a TRO, the
court must set a date for a hearing on a preliminary Injunction at the
earliest possible time. The discharger may seek to dissolve the TRO by
giving EPA two days' notice and persuading the court at the hearing either
that the underlying alleged violation is not occurring or that Immediate
and irreparable injury, loss, or damage will not result.
Preliminary Injunction
A preliminary injunction preserves the status quo pending final determina-
tion of the action after notice and a full hearing on the merits. The
injunction may not be issued without notice to the discharger. In addi-
tion, the preliminary injunction can last longer than ten days and is
effective for the time during which the court decides (pendente-lite) to
issue a permanent injunction.
The applicant has the burden of establishing the right to Injunctive
relief. To do so, EPA will rely on affidavits and oral testimony, when
available and if necessary, to substantiate the Agency's contentions.
The court may order the advancement and consolidation of the trial on the
merits with the hearing on the application for preliminary injunction.
Therefore, the government attorney should be prepared to go forward with
the prosecution of the case when seeking a preliminary injunction. Exhibit
8-5 contains a sample motion for preliminary injunction.
CWA Compliance/Enforcement8-17Guidance Manual 1985
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Chapter Eight Procedures for Filing Actions
Permanent Injunction
A permanent injunction is generally unlimited in duration. It is generally
granted after a full trial on the merits or on consent. Consequently, the
judgment granting a permanent injunction constitutes final disposition of
the suit, although the judgment may be appealed to a circuit court.
Mere passage of time will not dissolve a permanent injunction, unless the
judgment so provides. However, the court may terminate or modify the
prospective features of a final injunctive decree when warranted by changed
conditions.
Discovery
Discovery is the process by which information—documentary, testimonial,
and physical—in the possession of one party to a civil action is secured
by another party.* Discovery serves as a device to (1) narrow and clarify
the basic issues between the parties, and (2) ascertain the facts, or
information as to the existence or whereabouts of facts, relative to those
issues.
Discovery prepares the parties for trial by apprising each party as fully
as possible of the proof in the possession of the other party. In almost
all cases, it is advantageous to institute discovery as soon as possible,
which can generally be simultaneously with the commencement of the action.
Filing discovery requests may be necessary to develop the government's
case. While violations of effluent limitations can be supported with dis-
charge monitoring reports, the significance of these violations may some-
times be established only through discovery, such as through the deposition
of the plant manager.
The several different discovery methods are listed in Rule 26 of the Fed-
eral Rules of Civil Procedure. This chapter provides several sample plead-
ings used in discovery in Clean Water Act enforcement cases. Exhibit 8-6
contains a sample request for admissions. Exhibit 8-7 contains a sample
notice of deposition upon oral examination. Exhibit 8-8 contains sample
written interrogatories. Exhibit 8-9 contains a sample,request for produc-
tion of documents.
This discussion on discovery is based on the American Law Institute -
American Bar Association Environmental Litigation course materials.
CWA Compliance/Enforcement 8-18 Guidance Manual 1985
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Chapter Eight Procedures for Filing Actions
Issues That Are Not Reviewable at Trial
Section 509(b)(2) provides:
Action of the Administrator with respect to which review
could have been obtained [under Section 509(b)(l)] shall
not be subject to judicial review in any civil or crimi-
nal proceeding for enforcement.
This provision severely limits the number and type of defenses that a
defendant can raise in an enforcement proceeding. Generally, Section
509(b)(l) provides for review of rules or orders promulgated pursuant to
Sections 301, 302, 306, 307, and 402 (including- actions issuing or denying
permits) or any other final Agency action of the Administrator, within 90
days of publication of the rule or order in the Federal Register. Juris-
diction lies in the U.S. Court of Appeals for the appropriate circuit for
applicable rules or orders, or in the D.C. Circuit. After the 90-day
period has expired, the defendant may not challenge the rule or order.
Thus, in an action to enforce the effluent guideline limitations estab-
lished by an industrial effluent guideline, for example, the discharger may
not challenge the rule as being inapplicable due to a defect in the rule-
making (such as the failure of the Agency to consider cost in establishing
the standard). In other words, although the discharger may defend against
the enforcement action on the grounds that the standard does not apply to
or may not be applied against the discharger, it may not challenge the
reasonableness of or adoption procedures of the standard itself. In
addition, the discharger may not so challenge the terms of a permit.
Motion for Summary Judgment
The United States may file a motion for partial summary judgment in a CWA
case on the question of liability for NPDES permit violations or unperrait-
ted discharges. Such a motion can be useful in encouraging the defendant
to reach a settlement with the government. Rule 56 permits any party to a
civil action to move for summary judgment upon a claim, counterclaim, or
cross-claim where there is no genuine issue of material fact and the moving
party is entitled to prevail as a matter of law (see Charles Wright,
Federal Courts, 663-670). The motion may be based on the pleadings or it
may be supported by affidavits.
The government's motion papers in an NPDES permit violation case generally
include the relevant permit application, a copy of the issued NPOES permit
(indicating interim and final effluent limitations), copies of discharge
monitoring reports and other noncompliance reports, and affidavits of
Agency enforcement personnel (generally the technical compliance chief or
CWA Compliance/Enforcement 8-19 Guidance Manual 1985
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Chapter Eight Procedures for Filing Actions
site inspector). As discussed in Chapter Four, an unchallenged monitoring
report may be sufficient to establish liability for permit violations.
[See StudentPublic Interest Group of New Jersey, Inc. v. Fritzsche, Dodge
and Olcott, Inc., 579 F. Supp. 1528 (D. N.J. 1984) and FacetEnterprises,
Inc. v. Friends of the Earth. 22 E.R.C. 1143 (W.D. N.Y. 1984).]
The court does not try issues of fact on a motion for summary judgment, but
determines whether there are issues to be tried. The court generally gives
the party opposing the motion the benefit of all reasonable doubt in decid-
ing whether a genuine issue exists. Further, the court may deny summary
judgment if, in its judgment, fairness dictates proceeding to trial.
Exhibit 8-10 contains a sample motion for summary judgment filed by the
government covering issues of liability for discharging without a permit
and failing to report discharges to the Agency.*
In Exhibit 8-10, the government's motion goes beyond what ts generally
required in such a motion, because it, in part, responds to Issues
raised by defendant's own motion for summary judgment, including whether
discharges to "waters of the United States" are involved (see pages 13
through 22 of the memorandum in support of the motion for summary
judgment).
CWA Compliance/Enforcement 8-20 Guidance Manual 1985
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Chapter Eight
4 Consent Decrees
Civil judicial actions are often settled prior to trial by consent of the
parties; such settlements normally take the form of negotiated consent
decrees*
Contents of the Consent Decree
The consent decree must ensure that EPA has met its goals for the litiga-
tion. A consent decree will explain the future rights and obligations of
the parties, will address reasonably foreseeable issues that may arise in
the decree's implementation, and will ensure the prompt and effective
enforcement of the decree by EPA, the Department of Justice, and the court
should the defendant not honor the agreement.
While consent decrees negotiated by the Agency differ because each decree
embodies a separate negotiating process and a different set of facts, there
are elements common to most settlements. The following is a brief outline
of the elements that should be considered when drafting a consent decree.*
Elements of theConsent Decree
I. Preliminary Statements. Preliminary statements establish a background
for the agreement. These statements relate the general intentions and pur-
poses of the parties regarding settlement. Although preliminary statements
do not set forth the specific, substantive liabilities and rights of the
parties, they are very useful should the substantive provisions of the
agreement need clarification. These statements may be presented as stipu-
lations and findings of fact by the court.
For further discussion on consent decrees, consult the October 19,
1983, "Guidance for Drafting Judicial Consent Decrees," and the April
18, 1984, "Guidelines for Enforcing Federal District Court Orders," both
contained in the General Enforcement Policy Compendium, GM-17 and 27,
respectively.
CWACompliance/Enforcement8-21 Guidance Manual 1985
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Chapter Eight Consent Decrees
Preliminary statements often include one or more paragraphs on:
• The dates that the complaint and amendments to the complaint were
filed;
* The statutory authority for the action;
• The parties to the agreement;
* The gravamen or alleged gravamen of the action. (To the extent
that the parties can agree, the decree should state facts concern-
ing the case, including the conduct that violates the CWA or
conditions that endanger public health or the environment. If a
defendant will not agree to such facts, the facts should then be
characterized as allegations by the United States); and
• A statement of reasons why the parties believe the settlement is in
the public interest. (These may include the avoidance of prolonged
litigation or an expeditious and desirable environmental remedy.)
II* Jurisdiction. The agreement should always contain a stipulation that
the court has jurisdiction over both the subject matter and the parties,
and should cite the statutory basis for such jurisdiction.
III. Parties Subject to the Termsof the Consent Decree. The settlement
document should state that the parties and their successors, assigns, and
heirs (if a person) agree to be bound by the document. The agreement
should also state what terms are applicable to individual parties. For
example, a decree may have a separate paragraph referencing the paragraphs
applicable to each party or may identify each party's responsibilities in
separate paragraphs.
IV. Injunctive Relief. The heart of a consent decree is the means by
which compliance with statutory and regulatory requirements will be
achieved. The consent decree should require the defendant to report, cer-
tify, or otherwise document compliance with all injunctive measures
required under the decree. This places the burden of confirming compliance
on the defendant. The decree should include every CWA provision,
regulation, or permit condition with which the violator must comply, and
detail the action that will be taken to achieve and maintain compliance.
V. Reporting and Recordkeeping. To assist EPA in monitoring the perfor-
mance of the agreement's terms, it may be necessary to require periodic
reports. These reports may include sampling and monitoring requirements, a
monthly accomplishments report, and submission of logs or other documents
generated during the term of the decree.
VI. Access Agreements. EPA must have prompt, immediate access to the
facility at all reasonable times to ensure compliance with the terms of the
agreement. When a consent decree requires remedial work at a facility, EPA
should obtain an explicit right of access.
CWA Compliance/Enforcement 8-22 Guidance Manual 1985
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Chapter Eight Consent Decrees
VII. Schedule for Compliance. An agreement must provide a practical and
expeditious schedule for completion of its terms. In some instances, it
may not be practical to specify a date. In such a case, the decree should
provide for the fulfillment of specific requirements upon performance of a
condition precedent (e.g., entry of the decree).
VIII. Stipulated Penalties. Stipulated penalties are normally provided in
decrees to ensure compliance with its terms. Such penalties are advisable
when corrective action or work by defendants is likely to take a substan-
tial period of time. Penalties should be reasonable in terms of the viola-
tion they address but large enough to deter violations effectively.
IX. Penalties for Past Violations. Penalties for past violations are a
key part of a CWA settlement. The decree should specify how, by whom, and
to whom the penalty should be paid (generally to the United States
Attorneys Office, made out to "Treasurer, United States of America.") If a
defendant will pay a penalty in installments, the decree should provide a
clear schedule of payment. Delinquent payments should accelerate payment
of the entire penalty sum. The penalty amount should be consistent with
applicable penalty policies.
X. Oversight of Completed Work. For the orderly management of a consent
decree, it is often necessary for EPA to oversee the completed compliance
schedule activities.
XI. Force Majeure. A force majeure clause, if included, should be
narrowly and explicitly drawn. Note that economic hardship should not be
included as a force majeure event.
XII. Compliance with Other Laws. A consent decree should state that a
defendant is required to comply with other federal, state, or local laws,
regulations, or permit requirements not addressed by the consent decree.
The decree should not be used as an excuse for violation of other legal
obligations, or as an inference that the decree settles potential govern-
ment claims with respect to those obligations.
XIII. Extent of theRelease Given Under the Decree. Any release from
liability must be explicit and limited to the controversy involved in the
case. No criminal liability may be released in a civil settlement. Also,
the agreement should state that any nonsettling parties are not released by
the agreement.
XIV. Good Faith Negotiation Clauses. This paragraph has proved desirable
in multi-party cases where the Agency has not settled with all parties.
The paragraph commonly declares that all parties negotiated and entered the
decree in good faith, and that they believe the settlement is fair and
equitable. This language may be considered self-serving by any nonsettling
parties. However, it may be useful in defending collateral actions by non-
settling parties.
CWA Compliance/Enforcement 8-23 Guidance Manual 1985
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Chapter Eight Consent Decrees
XV. Termination and Effective Dates Clauses. Each agreement should
establish specific dates by which action under its terms is required and
when the defendant's obligation ends, such as a specific term after the
defendant has demonstrated it has achieved and is maintaining compliance.
Exhibit 8-11 contains a sample consent decree for an industrial direct
discharger that has violated its NPDES permit limitations. Two items in
the sample decree need to be qualified. First, while the sample decree
provides for EPA to send a demand letter to the defendant for collection of
stipulated penalties, the preferred approach is to provide for automatic
payment of such penalties upon violation of a decree. This is discussed in
.Chapter Ten, "Enforcement of Consent Decrees." Second, the decree should
provide for the jurisdiction of the court to additionally extend to
assessment of stipulated penalties that accrue during the term of the
decree.
Exhibit 8-12 contains a sample consent decree involving violations of an
NPDES permit by a municipal discharger. Exhibit 8-13 contains a sample
consent decree involving pretreattnent violations by an industrial
contributor to a POTW.
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Chapter Eight
5 Citizen Suits [Reserved]
WA Compliance/Enforcement 8-25 Guidance Manual 1985
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Chapter Eight Citizen Suits
CWA Compliance/Enforcement 8-26 Guidance Manual 1985
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Chapter Eight
6 Exhibits
This section contains the following exhibits:
Exhibit 8-1: Model Civil Litigation Report Outline and Guide
Exhibit 8-2: Sample Complaint for Industrial Discharger
Exhibit 8-3: Sample Complaint for Municipal Discharger
Exhibit 8-4: Sample Pretreatment Complaint
Exhibit 8-5: Sample Motion for Preliminary Injunction
Exhibit 8-6: Sample Request for Admissions
Exhibit 8-7: Sample Notice of Deposition Upon Oral Examination
Exhibit 8-8: Sample Interrogatories
Exhibit 8-9: Sample Request for Production of Documents
Exhibit 8-10: Sample Motion for Summary Judgment
Exhibit 8-11: Sample Industrial Consent Decree
Exhibit 8-12: Sample Municipal Consent Decree
Exhibit 8-13: Sample Pretreatment Consent Decree
CWA Compliance/Enforcement
8-2T
Guidance Manual 1985
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Chapter Eight Exhibits
CHA Compliance/Enforcement 8-28 Guidance Manual 1985
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Chapter Eight Exhibit 8-1
Model Civil Litigation Report Outline and Guide
Title Page
A. Identify the facility by name and location and indicate the parent
company if different from the facility name.
B. Identify who prepared the report (both legal and technical
personnel) indicating addresses and telephone numbers.
C. Show the date of completion/submission of the report.
Table of Contents (Standardized Example)
I. Information Identifying the Defendant(s) Page
II. Synopsis of the Case Page
III. Statutory Authority Page
IV. Description of Defendant's Business and
Technical Description of the Pollution Source Page
A. Facility Description Page
B. Source of Pollution Page
C. Pollutants Involved; Environmental Harm
(Where Appropriate) Page
D. Available Control Technology and/or
Remedial Action Page
CWA Compliance/Enforcement 8-29 Guidance Manual 198S
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Chapter Eight Exhibit 8-1
V. Administrative and Enforcement History Page
VI, Required Elements of Proof and Evidence Page
A. Elements of Proof Page
B. Evidence of Violation Page
C. Evidence of Environmental Harm
(Where Appropriate) Page
D. Discovery Page
E. Evidence Favorable to Violator Page
F. Government Witnesses Page
G. Defense Witnesses Page
H. Resource Needs Page
VII. Relief Requested Page
A. Preliminary Injunction Page
B. Standards To Be Met Page
C. Compliance Schedule Page
D. Stipulated Contempt Fines Page
E. Civil Penalties Page
F. Necessary Bonds Page
VIII. Anticipated Issues Page
A. Possible Defenses Page
B. Equitable Arguments Page
C. Pending Related Administrative or Court Action Page
D. Other Issues Page
E. Discussion of Any Potential Practical
Problem With the Case Page
IX. Litigation Strategy Page
A. Need for Preliminary Injunction Page
CWA Compliance/Enforcement 8-30 Guidance Manual 1985
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Chapter Eight Exhibit 8-1
B. Potential for Summary Judgment Page
C. Settlement Potential Page
D. Other Potential Defendants Page
X. Index of Attachments Page
XI. Attachments Page
* Copies of correspondence
* Copies of relevant regulated submissions
• Copies of relevant policy memos, regulations, interpretations
Body of the Report
I. Information Identifying the Defendant(s)
A* Legal name of company
B. Address: Corporate headquarters
C. Name of facility (if different from "A")
D. Address of facility (if different from "B")
E. SIC code
F, State of incorporation
G. Registered agent for service
H. Legal counsel (name, address, telephone number)
I. Judicial district in which violator is located
II. Synopsis of the Case
This section should be a one- or two-page articulation of the
heart of the case. It should describe both the violation and the
proposed relief. It should not describe statutory authority or
intricate legal issues in detail.
This succinct statement of the case will provide the reader a
framework in which to fit the details developed and presented in
the body of the litigation report.
CWA Compliance/Enforcement 8-31 Guidance Manual 1985
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Chapter Eight Exhibit 8-1
The factual basis of the case should be touched upon. Purely
conclusory characterization of the case is not as useful as
showing the facts of a violation and requested relief. For
example, it is better to say a violator discharged or emitted X
quantity of Y. pollutant for Z days, than to simply say that the
violator did not comply with the terms of a permit, State Imple-
mentation Plan (SIP), or statute.
The environmental seriousness of the violation, its ongoing
nature, and a violator's recalcitrance may be touched upon in
this section (but will also be developed later in paragraph
III. Statutory Authority
A. Present the substantive requirements of the law and .
applicable regulations. Reference all federal statutes by
U.S.C. citation as well as by the section of the pertinent
Act. Summarize the enforcement authority, jurisdiction, and
venue. Specific elements of proof are to be addressed in
paragraph VI.
B. Lengthy dissertation on the law is unnecessary. However, in
the instance of State Implementation Plans under the Clean
Mr Act, or Water Quality Standards under the Clean Water Act,
or involvement of any other state law or regulation, a more
extensive explanation of the law or regulation may be
necessary. Pertinent excerpts from any applicable state
laws or regulations should be identified and attached to the
litigation report.
C. Any prior interpretation of pertinent state laws or
regulations that are germane to the case should be
referenced when identifying the law violated. If a state's
interpretation of the law has been different from ours, the
issue should be discussed with the state and fully explained
in this section of the litigation report. (This section may
then be referenced when discussing potential defenses, etc.,
in paragraph VIII.)
D. List any other possible theories of violation under federal,
state, or common law.
IV. Description of the Defendant's Business and Technical Description
of the Pollution Source
A. Describe the violating corporation and the particular
division or facility in question. Any interesting corporate
interrelationships or subsidiaries should be noted.
CHA Compliance/Enforcement 8-32 Guidance Manual 1985
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Chapter Eight Exhibit 8-1
B. Discuss the business of the corporation and/or division,
providing details about the facility in question, what is
produced, and what causes the pollution. Emphasis should be
on the particular process that is causing the problem. Plant
and process should be thoroughly explained, Including those
outfalls or emission points not subject to this enforcement
action. Diagrams should be referenced and attached to, or
included in, the litigation report. Photographs of the
source may be helpful.
C. Discuss the types of pollutants being discharged, and
potential health and environmental effects. Although the
seriousness of the violation is not technically a requirement
of proof in enforcement of certain statutes, it is sometimes
relevant to the assessment of penalties and equitable
relief. For this reason, it should be discussed in the report
although It will not be the sole determinant of whether a
case has prosecutorial merit. The Department of Justice has
suggested the following considerations in assessing the
seriousness of the violation:
* The discharge of toxics or mutagens or carcinogens is more
serious than the discharge of conventional pollutants;
* The discharge of large quantities of pollutants
is more important than the discharge of small quantities;
* Bioaccumulative wastes posing long-term threats are more
serious than biodegradable wastes;
* The discharge of pollutants In an area not attaining
primary ambient air quality standards is more important
than discharges in an area not meeting secondary
standards;
• The discharge of pollutants that directly and demonstrably
affect health or the environment Is more than those that
have no direct or obvious effect;
• Ongoing present violations that the government seeks to
stop are more important than episodic violations which
have ceased; and
* A defendant with a history of violations is more worthy
of attention than a first offender.
If a case does not present obvious "serious" health effects
or environmental harm, but is compelling for some other
reason (e.g., deterrence of continued, blatant violations of
the law), this should be indicated.
CWA Compliance/Enforcement 8-33 Guidance Manual 1985
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.Chapter Eight . Exhibit 8-1
D. Discuss available methods of controlling the problem.
Specify technology(ies) that will achieve the imposed limits,
and indicate the time requirements for a schedule of
compliance that considers time necessary for design,
contracting, construction, and startup. (This is not
inconsistent with EPA policy of not prescribing specific
compliance technologies. This information may be necessary
in court to illustrate technical feasibility if requested by
the judge.)
Cost estimates should be included, to the extent known.
Indicate the reliability of the estimates. (Reference
paragraph VII(E) as appropriate.)
V. Chronological Administrative History and/or Earlier Enforcement
Actions (State and Federal)
A. Show all attempts to exact compliance or impose sanctions
administratively or judicially that have been considered or
taken. A full historical chronology should be presented.
B. Indicate whether necessary notice pursuant to the statutory
requirements has been given to the violator prior to
initiation of court action.
VI. Required Elements of Proof and Evidence
A. List the necessary elements of proof to establish the
violation under each statute involved.
B. Present a detailed, objective, factual analysis of all real,
documentary, and testimonial evidence corresponding to each
necessary element of proof in paragraph VI(A) above.
Indicate the location of all real evidence.
Reference each item of documentary evidence as an attachment,
except where it is too voluminous (in which case indicate its
present location).
Identify all witnesses by name (indicating whether lay or
expert), when indicating the import and substance of their
testimony. Complete addresses and phone numbers of witnesses
will be listed in paragraph VII(E) below.
C. Discovery. Where evidence may be made available by
discovery, indicate:
1. The type of evidence anticipated;
CWA Compliance/Enforcement 8-34 Guidance Manual 1985
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Chapter Eight Exhibit 8-1
2. The person or organization currently having the
evidence; and
3. The type of discovery to be used.
Assess the quality of the evidence* Be objective. Any facts
or circumstances that affect the strength of the Agency's
proof should be explicitly set forth. The newness or oldness
of evidence is relevant; the dependability of testing
techniques is important. Any assumptions, and the reasons
for them, should be spelled out.
D. If establishing environmental harm is Important to the case,
set forth the evidence of harm (as done in paragraph VI(B)
for elements of substantive violation).
E. List all evidence favorable to the violator, including test
results that differ from EPA's. Any relevant fact that may
bear adversely on the government's contentions should be
highlighted. Defense witnesses, to the extent they can be
anticipated, should be listed in paragraph VI(G).
F. List all government witnesses alphabetically with business
address, and telephone number and home telephone number.
Qualifications of experts should be given*
All witnesses listed should have been consulted and
thoroughly interviewed. Paragraph VI(B) should set out in
succinct fashion the actual facts and opinions to be included
in the testimony.
G. List all defense witnesses anticipated, identifying their
employment, expertise, etc. The likely content of their
testimony should be set out in paragraph VI(E).
H. Indicate projected resource needs (e.g>, experts, money,
etc.).
VII. Relief Requested
This paragraph should include a comprehensive "bottom-line"
settlement position on all items of relief necessary, including
those set forth below. If there are policy questions or conflicts
associated with any requested relief, discuss them. This section
should be carefully detailed. It will be relied upon in
determining the acceptability of any settlement offers/proposed
consent decrees.
A. Preliminary injunction.
B. Standards to be met (interim and final).
CWA Compliance/Enforcement 8-35 Guidance Manual 1985
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Chapter Eight Exhibit 8-1
C. Compliance schedule for available technology with phasing,
duration, etc. (Reference paragraph IV(D), as appropriate.)
D. Stipulated contempt fines in conjunction with compliance
schedule.
E. Civil Penalties.
1. Economic savings realized by the violator should be
analyzed. The EPA Civil Penalty Evaluation form should
be completed, discussed, and attached. Calculations
should be included as attachments. This section should
include discussion of all elements developed under EPA's
civil penalty policy, including ability of the company
to pay and recalcitrance.
2. Comment on types of credits possible (or proposed by the
violator), as well as credits considered and/or allowed
for other similar violators (including municipal POTWs).
3. If economic savings is not a relevant measure of penalty
assessment, explain what basis should be used.
F. Necessary bonds*
Witnesses necessary to establish the relief requested should
be identified by name, address and telephone number, with a
brief summary of the subject of their testimony.
VIII. Anticipated Issues
A. Possible defenses.
(Analyze only defenses that are likely to be presented;
fanciful theories can be ignored.)
1. Outline legal issues. Attach legal memoranda on threshold
legal issues (e.g., Chapter 11 Reorganization) or col-
lateral legal action asserted as a bar to enforcement
litigation.
2. Outline factual issues.
B. Equitable arguments by the violator (e.g., EPA delay in
promulgating guidelines; installation of equipment that did
not work; in compliance at its other facilities; emission
standard to be revised; inability to finance; economic
constraints, etc.). Any past action, or inaction (not
necessarily judicial or administrative) by a state or any
EPA office that the company may use as an excuse, or cite
for reliance, (e.g., promises of less stringent limits;
agreement not to sue, etc.).
CWA Compliance/Enforcement 3-36 Guidance Manual 1985
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Chapter Eight Exhibit 8-1
C. Pendency of any action involving the violator or EPA on
related issues in any court or administrative forum.
(Reference paragraph V(A), as necessary.)
D. Other possible issues that might arise at trial,
E. Discuss any potential practical problems with the case*
IX. Litigation Strategy
A. Need for preliminary injunction.
B. Potential for summary judgment.
C. Settlement potential.
1. Past contacts by EPA, the Department of Justice or the
United States Attorney's Office.
2. Present negotiating posture and assessment of potential
for settlement. Include comparison of posture with
"bottom-line" settlement position from paragraph VII.
D. Other potential defendants.
S. Other pending actions against violator.
X. Index of Attachments
XI. Attachments
CWA Compliance/Enforcement 8-37 Guidance Manual 1985
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Chapter Eight Exhibit 8-2
Sample Complaint for Industrial Discharger
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA, )
)
Plaintiff, S
v. ) CIVIL ACTION NO.
SCM CORPORATION, )
)
Defendant. )
COMPLAINT
The United States of America, by the authority of Che
Attorney General and at Che request of and on behalf of the United
States Environmental Protection Agency ("EPA"), alleges as follows:
1. This is a civil action pursuant to Sections 309(b)
and (d) of the Clean Water Act (the "Act"), 33 U.S.C. S1319(b)
and (d), for imposition of civil penalties and for injunctive relief
against the defendant for its discharge of pollutants into the navi-
gable waters in violation of its discharge permit and in violation of
Sections 301 and 402 of the Act, 33 U.S.C. S1311 and 1342,
respectively.
2. Authority to bring this civil action is vested in
the Department of Justice pursuant to 28 U.S.C. S516 and 33 U.S.C.
SS 1319 and 1366.
3. This Court has jurisdiction of the subject matter of
this action pursuant to 28 U.S.C. $11345 and 1355 and 33 U.S.C.
S1319. Venue is proper in this District pursuant to 28. U.S.C.
S1391(b) and (c) and 33 U.S.C. S1319(b).
CWA Compliance/Enforcement 8-38 Guidance Manual 1985
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Chapter Eight Exhibit 8-2
- 2 -
4. Notice of the commencement of this action has been
provided to the State of Maryland pursuant to 33 U.S.C. I1319(b).
5. Defendant SCM Corporation ("SCM") is a New York
corporation doing business In the State of Maryland. Service on SCM
may b« made by serving counsel to SCM Corporation, Joseph S. Kaufman,
MeInicove, Kaufman, Ueiner and Stnouse, P.A., 36 South Charles Street,
Sixth Floor, Baltimore, Maryland 21201, who has agreed to accept
service on behalf of SCM.
6. Defendant SCM owns and operates the Adrian Joyce Works,
a titanium dioxide manufacturing facility ("the facility"), located
at 3901 Clldden Road, Baltimore, Maryland, which discharges pollutants
in the fora of contact and non-contact cooling and process waters
into navigable waters.
7. Section 301 of the Act, 33 U.S.C. S1311, prohibits the
discharge of pollutants into the navigable waters except, inter
alia, in compliance with the terns and conditions of a permit issued
pursuant to Section 402 of the Act, 33 U.S.C. 11342. Under the
Rational Pollutant Discharge Elimination System ("NPDES") permit
program authorized pursuant to 33 U.S.C. 11342, the Administrator of
EPA has the authority to issue NPDES permits for the discharge of
pollutants into the navigable waters.
8. Section 402(b) of the Act, 33 U.S.C. I1342(b), provides
that the Administrator of EPA may authorize a state to operate its
own NPDES permit program in compliance with the requirements of the
Act. The State of Maryland was granted authority by the Administrator,
CWA Compliance/Enforcement: 8-39 Guidance Manual 1985
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Chapter Eight _____ Exhibit 8-2
-3-
1PA, to operate an NPDES permit oystetn effective September 5, 1974,
pursuant to a Memorandum of Agreement between IPA and the State
of Maryland (hereinafter "Memorandum of Agreement*).
9. The Septeaber 5, 1974 Memorandum of Agreement
provides, inter alia, that State permits will become NPDES
permits upon either reissuance of State Discharge Permits or when
State Discharge Permits are continued under the Maryland Administrative
Procedures Act following timely application for renewal of
State Discharge Permits.
10. On May 28, 1974, EPA issued to defendant SCM HPDES
Permit Ho. MD. 0001261, (Exhibit A, appended hereto) authorizing
the discharge of specified pollutants in specified amounts into
the Patapsco River which flows into Baltimore Harbor of the
Chesapeake Bay. This was the federal portion of the joint federal-
state discharge permits which vere issued pursuant co a Joint
federal-state penait process cotunenced in 1974 by the State of Maryland
and EPA in anticipation of EPA1a approval of the State of Maryland's
administration of the NPDES permit program.
*
11. On June 19, 1974, the State of Maryland issued
to defendant SCM State Discharge Permit No. 74-D1P-164 (Exhibit B,
appended hereto) authorizing the discharge of specified pollutants
in specified amounts into Che Patapseo River. This permit was the
state portion of the Joint federal-state discharge permits which were
issued pursuant to the aforementioned Joint federal-state pollutant
discharge permits process.
CWA Compliance/Enforcement 8-40 Guidance Manual 1985
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Chapter Eight Exhibit 8-2
- 4 -
12. The terns and conditions of NPDES Penult Number
MD. 0001261 and State Discharge Permit No. 74-DIP-164 vere and are
Identical. By Its terns NPDES Penult Mo. MD 0001261 became
effective on June 27, 1974, and expired on June 27, 1979.
13. iy its terms State Discharge Permit No. 74-DIP-
164 became effective on June 19, 1974, and vas Co have expired
on June 19, 1979. However, the permit terms and conditions
remain effective under law and pursuant to the 1974 Memorandum
of Agreement, by reason of defendant SCM's application to the State
of Maryland for renewal of the State Discharge Pernlts.
14. Pursuant to the 1974 Memorandun of Agreement, as of
June 27, 1979 (the expiration date listed in NPDES Pernlt No. MD.
0001261), State Discharge Permit No. 74-DIP-164 became and continues
to be the NPDES Pernlt regulating the discharge of pollutants from
SCM's facility for the purpose of sections 301 and 402 of the Act. 33
U.S.C. IJ1311 and 1342.
IS. Fart I.A. of the NPDES Permit (Exhibit "A" hereto,
pages three through five) specifies numerical effluent limitations
for, inter alia, total suspended solids ("TSS") and "pH" in discharges
from outfalls Numbers 001 and 002 from the defendant's facility.
FIRST CLAIM
(Violations of pH Discharge Limitation at Outfall 001)
16. The allegations in paragraphs 1-15 above are incorpo-
rated herein by reference as if fully alleged below.
17. Section 301 of the Act, 33 U.S.C. 11311, prohibits the
discharge of any pollutant by any person except, inter alia. In
CWA Compliance/Enforcement 8-41 Guidance Manual 198S
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Chapter Eight Exhibit 8-2
- 5 -
compliance with the terms and conditions of an 8FDIS permit, Issued
pursuant ta Section 402 of the Act, 33 O.S.C. 11342.
18. 'The term "person" is defined under the Act to include
corporations.
19. Defendant SCM Corporation is a "person" under the Act.
20. The industrial wastes discharged by defendant from
outfalls Numbers 001 and 002 at all relevant tinea herein were
and are "pollutants" under the Act.
21. The tern "point source* la defined under the Act as
"any discernible, confined and discrete conveyance, including but not
United to any pipe, ditch, drainage, tunnel, conduit well ... froa
which pollutants art or nay be discharged." 33 U.S.C. 11362(14).
22.. The SCM facility and outfalls Not. 001 and 002
are "point sources" under the Act.
23. The term "navigable waters" is defined under the Act
as the "waters of the United States, Including the territorial seas."
33 U.S.C. 11362(7).
24. The Patapsco River and the Chesapeake Bay are
"navigable waters" under the Act.
25. Section 309(b) of the Act, 33 U.S.C. S1319(b), autho-
rizes the Administrator of EPA to commence a civil action for appro-
priate relief, including a permanent injunction, for any violation of
a condition or limit in a permit issued by EPA or by a state
under an approved NPDES permit program.
CWA Compliance/Enforcement 8-42 Guidance Manual 1985
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Chapter Eight Exhibit 8-2
- 6 -
26. Section 309(d) of the Act, 33 O.S.C. I1319(d),
provides that any person violating the Act, Including any condition
or limitation of a permit Issued under Section 402, shall be subject
to a civil penalty not to exceed §10,000 per day for each violation
of the HPDES Permit.
27. The effluent limitations In Part l.A. of the HPDES
Permit were divided Into Interim and final stages. The Interim
effluent limitations for outfall Ho. 001 were effective through June
30, 1977. The final effluent limitations in Part l.A. of the HPDES
Permit authorized defendant SCM, as of July 1, 1977, to discharge
from outfall 001 Industrial waotewattr with a pH not less.than 6.0
standard units nor greater than 9.0 standard units.
28. Defendant SCM, according to reports filed by it with
the State of Maryland, aa required under its NPDES Permit, has exceeded
continuously the final limitations of Part l.A. of the NPDES Permit
for pH at outfall 001 from July 1, 1977 to the present.
29. Both the State of Maryland and the EPA have issued
administrative coaplaints and notices of violation to defendant SCM
requiring compliance with the pR limitations In the HPDES Permit for
outfall 001, but defendant SCM has continued to violate the terms and
conditions of its NPDES Permit at outfall Ho. 001.
30. The violations of the pH effluent limitations contained
in Part l.A. of the NPDES Permit at outfall 001 will continue unless
defendant SCM la ordered by the Court to comply with the HPDES Permit
and with the Clean Water Act*
CWA Compliance/Enforcement 8-43 Guidance Manual 1985
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Chapter Eight Exhibit 8-2
. 7 .
SECOND CLAIM
(Violations of pH Discharge Limitations at Outfall 002)
31. The allegations contained In paragraphs 1-30 above
are Incorporated herein by reference as If fully alleged below,
32. The Interim effluent limitations In Part I.A, of the
NPDES Permit for outfall No. 002 were effective through June 30,
1977. The final effluent llnitationa in Part I.A. of the NPDES
Permit authorised defendant SCM, as of July 1, 1977, to discharge
from outfall 002 wastewater with a pH not less than 6.0 standard
units nor greater than 9.0 standard units.
33. Defendant SCM, according to reports filed by it with
the State of Maryland as required under ita NPDES Permit, has exceeded
contlnously the final limitations of Part I.A. of the NPDES Permit
for pH at-outfall 002 from July 1, 1977 to the present.
34. Both the State of Maryland and the EPA have issued
administrative complaints and notices of violation to defendant SCM
requiring compliance with the pH limitations in the NPDES Permit for
outfall 002, but defendant SCM has continued to violate the terms and
conditions of its NPDES Permit ac outfall 002.
35. The violations of the pH effluent limitations
contained in Part I.A. of the NPDES Permit at outfall 002 will continue
unless defendant SCM is ordered by the Court to comply with the
NPDES Permit and with the Clean Water Act.
THIRD CLAIM
(Daily Maximum TSS Discharge Limitation Violations)
36. The allegations contained in paragraphs 1-35 above are
incorporated herein by reference as if fully alleged below.
CWA Compliance/Enforcement 8-44 Guidance Manual 1985
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Chapter Eight Exhibit 8-2
- 8 -
37. As of July 1, 1S77, the final effluent limitations In
Part I.A. of the NPDES Permit authorized defendant SCH to discharge
tram the facility not in excess of the daily maximum of six thousand
five hundred (6,500) pounds per day of total suspended solids ("TSS").
38. Defendant SCH, according to reporta filed by it with
the State of Maryland aa required under its NPDES Permit, has exceeded
on numerous occasions the final daily maximum effluent limitations
of Part I.A. of the NPDES Permit for TSS at the facility from July 1,
1977 to the present.
39. loth the State of Maryland and the EPA have issued
administrative complaints and notices of violations to defendant SCM
requiring compliance with the daily maximum TSS effluent limitations
in the NPDES Permit for the facility, but defendant SCM has continued
%
to violate the terms and conditions of its NPDES Permit at the facility.
40. The daily maximum TSS effluent limitation violations
of Part l.A. of the NPDES Permit at the facility will continue unless
defendant SCH is ordered by the Court to comply with the NPDES Permit
and the Clean Water Act.
FOURTH CLAIM
(Monthly Average TSS Discharge Limitation Violations)
41. The allegations contained in paragraphs 1-40 above are
incorporated herein by reference as if fully alleged below.
42. As of July 1, 1977, the final effluent limitations in
Part l.A. of the NPDES Permit authorized defendant SCM to discharge
from the facility not in excess of a monthly average of four thousand
three hundred twenty (4,320) pounds per day of TSS.
C¥A Compliance/Enforcement 8-45 Guidance Manual 1985
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Chapter Eight Exhibit 8-2
- 9 -
43. Defendant SCM, according to reports filed by It with
the State-of Maryland as required under Its NPDES Pernlt, has exceeded
on numerous occasions che final monthly average effluent limitations
of Part I.A. of the NPDES Permit for TSS at the facility from July 1,
1977 to the present.
44. Both the State of Maryland and the EPA have Issued
administrative complaints and notices of violations to defendant SCM
requiring compliance with the TSS effluent limitations In the NPDES
Permit for the facility, but defendant SCM has continued to violate
the terns and conditions of Its NPDES Permit ac the facility.
45. The monthly average TSS effluent limitations violations
of Part I.A. of the NPDES Permit at the facility will continue unless
defendant SCM Is ordered by the Court to comply with the NPDES Permit
and the Clean Water Act.
FIFTH CLAIM
(Five Day Monitoring and Notification Violations
at Outfalls 001 and 002)
46. The allegations contained In paragraphs 1-45 above
are Incorporated herein by reference as If fully alleged below.
47. Parts I.A. and II.A.2. of the NPDES permit set forth
self-monitoring and notification requirements which defendant SCM
Is required to perform. Specifically, these parts require defendant
SCM to periodically monitor for total suspended solids ("TSS") and
to continuously monitor the pH of Its discharges and to notify the
EPA Regional Administrator and the State of Maryland within five (5)
days of becoming aware of any violations of its dally maximum pH or
TSS effluent limitations ("five day letters").
CWA Compliance/Enforcement 8-46 Guidance Manual 1985
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Chapter Eight : Exhibit 8-2
- 10 -
48. Defendant SCH ha* not reported violations of final
effluent limitations at outfalls 001 and 002 in its five day
letters. Rather, the limitation* contained in the five day letters
submitted by defendant SCM to EPA and the State of Maryland are
interim limitations which, by the express terns of the KPDES Pernit.
were lesa stringent than the final effluent limitations in
the HPDES permit and are no longer applicable. Therefore, defendant
SCM has not fully reported all violation* of its final effluent
limitations in five day letters as required by the NFDES Pernit.
49. The violations of Part I.C.2. and II.A.2 of the
NPDES Permit will continue unless defendant SCM is ordered by the Court
to coaply with the NFDES Permit and the Clean Water Act.
SIXTH CLAIM
(Monthly Discharge Monitoring and Notification Violations
at Outfalls 001 and 002)
SO. The allegations contained in paragraphs 1-49
above are incorporated herein by reference as if fully alleged
below.
51. Parts I.A. and I.C.2. of the HPDES Permit set forth
self-monitoring and notification requirements which defendant SCM
Is required to perfona. Specifically, these parts require defendant
SCM to to periodically monitor for total suspended solids ("TSS") In
its discharges and to the continuously monitor the pH of its discharges
and to notify the EPA Regional Administrator and the State of Maryland
In monthly discharge reports of any violations of its daily maximum
or monthly average effluent limitations.
CWA Compliance/Enforcement 8-47 Guidance Manual 1985
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Chapter Eight Exhibit 8-2
- 11 -
52. Defendant SCM hue not reported violations of final
effluent limitations at outfalls 001 and 002 in Its monthly discharge
monitoring reports. Rather, the limitations contained in the monthly
discharge monitoring reports submitted by defendant SCM to EPA and
the State of Maryland are interim limitations which, by the express
terms of the NPDES Permit, were leas stringent than the final affluent
limitations in the NPDES permit and are no longer applicable. Therefore,
defendant SCM has not fully reported all violations of its final
effluent limitations in monthly discharge monitoring reports as
required NPDES Penalt.
53, The violations of Part I.C.2. and II.A.2 of the NPDES
Permit will continue unless defendant SCM is ordered by the Court to
comply with the NPDES Permit and with the Clean Water Act.
WHEREFORE, Plaintiff, the United States of America,
respectfully prays the Court to order the following relief:
a. That defendant SCM be ordered to pay civil penalties
of $10,000 per day for each .day of each violation of its NPDES
Permit and of Section 301 of the Clean Water Act;
b. That defendant SCM be enjoined from discharging from
its facility in violation of the final pH and TSS effluent limits
contained in NPDES Permit No. MD. 0001261 and the Clean Water Act;
c. That defendant SCM be ordered to comply with the
monitoring and reporting requirements pertaining to final pH and TSS
effluent limitations contained in NPDES Permit No. MD 0001261!
CHA Compliance/Enforcement 8-48 Guidance Manual 1985
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Chapter Eight
Exhibit 8-2
- 12 -
d. Th«t the United States be awarded its costs of this
action; and
*. That this Court grant such additional relief as nay be
appropriate.
Respectfully submitted,
F. HENRY HABICHT, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department: of Justice
Washington. D. C. 20530
ROBERTA VAN HEUVELW
Attorney
Environmental Enforcement Section
Department of Justice
Land and Natural Resources Division
Washington. D. C. 20530
(202) 633-5273
J. FREDERICK M0f2
United States Attorney
By:
GLENDAGORDON
Assistant United States Attorney
8th floor, U.S. Courthouse
101 W. Lombard Street
Baltimore, Maryland 21201
(301) 539-2940
JAMES T. HEENEHAH, III
Assistant Regional Counsel
United States Environmental
Protection Agency
Region III
6th and Walnut Streets
(215) 597-8916
CWA Compliance/Enforcement
8-49
Guidance Manual 198S
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Chapter Eight Exhibit 8-3
Sample Complaint for Municipal Discharger
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OP LOUISIANA
UNITED STATES OF AMERICA
Plaintiff,
CIVIL ACTION NO.
«*
SAINT BERNARD PARISH and
STATE OP LOUISIANA,
Defendants.
S3-3201
SECT. K MA£ 5
COMPLAINT
The United States of America, at the request of the
Administrator of the United States Environmental Protection
4
Agency <"EPA"), alleges thatt
1. This is a civil action pursuant to Section 309
of the Clean Hater Act ("the Act"), 33 U.S.C. 11319, for
injunctive relief and for aaaesanant of a civil penalty against
Saint Bernard Pariah, Louisiana for its discharge of pollutants
in violation of Section 301 of the Act, 33 U.S.C. §1311, and
its National Pollutant Discharge Elimination System (NPDES)
perait, and for relief against the State of Louisiana under
33 U.S.C. $1319(e).
2. This Court has jurisdiction over the subject
•atter of this action pursuant to 28 U.S.C. $1345 and Section
309 of the Act, 33 U.S.C. $1319. Notice of the commencement
CWA Compliance/Enforcement 8-50 Guidance Manual 1985
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Chapter Eight _____ Exhibit 8-3
- 2 -
of this action has been given to the State of Louisiana through
the Louisiana Department of Natural Resourceg.
3. Defendant, Saint Barnard parish ("St. Bernard") is
a political subdivision oi the State of Louisiana, duly formed
under the lava of the State of Louisiana, and is a municipality within
the meaning of Section 502(4} of the Act, 33 U.S.C. §1362(4).
4. Defendant, State of Louisiana is a party to
this action pursuant to Section 309(e) of the Act, 33 U.S.C.
S1319(e).
S. Section 301(a) of th* Act, 33 U.S.C. $1311(a>,
prohibits the discharge of pollutants except as in accordance
with Section 301(b) of the Act, 33 U.S.C. S1311(b|, and as <
authorized by a permit issued under Section 402 of the Act,
33 U.S.C. $1342. Section 301(b) of the Act requires that
publicly owned treatment works achieve by July 1, 1977 effluent
limitations requiring the application of "secondary treatment.'
6. Saint Bernard operates and maintains a publicly
owned wastewater treatment facility known as the Nunster
Waatewater Treatment Plant in or near Meraux, Louisiana. On
or about September 28, 1974, EPA, pursuant to Section 402(a)
of the Act, 33 U.S.C. $1342(a), issued NPDES Permit No. LA0040177
("the Nunster permit*) to Saint Bernard. The Nunster permit
authorized the discharge of pollutants from the Munster
Hastewater Treatment Plant into the Forty Arpent Canal strictly
subject to the terms and conditions of the Nunster permit.
CWA Compliance/Enforcement 8-51 Guidance Manual 1985
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Chapter Eight Exhibit 8-3
- 3 -
7. Ths forty Arpant Canal Is a "navigable water*
as defined by Section 502(7) of the Act, 33 U.S.C. $1362(7).
I. St. Barnard discharged pollutants .in violation
of Section 301 of the Act, 33 U.S.C. S1311, and the terms of
its Munster permit at the Munster Wastewater Treatment Plant
as followst
(a) At relevant times, St. Bernard unlawfully
discharged pollutants having a Biochemical Oxygen
Demand (5-day1 in excess of the 30-day and 7-day
average final effluent limitations contained in
Special Condition l.b, page S of the Nunster permit,
(b) At relevant times, St. Bernard unlawfully '
discharged pollutants containing Total Suspended
Solids in excess of the 30-day and 7-day average
final effluent limitations contained in Special
Condition l.b, page 5 of the Munster permit.
(c) At relevant times, St. Barnard unlawfully
discharged Peeal Co11form in excess of the limitations
contained in Special Condition l.b, page 5 of the
Munster permit.
(d) At relevant tines, St. Bernard unlawfully
bypassed the Hunster Hastewater Treatment Plant as
flows exceeded the design hydraulic capacity of
the secondary treatment system and St. Bernard
CWA Compliance/Enforcement 8-52 Guidance Manual 1985
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Chapter Eight Exhibit 8-3
violated the monthly average flow limitations
specified in Special Condition l.b., page S of
the Munster Permit.
(*) At relevant tinea, St. Bernard unlawfully
failed properly to dispose of sludges and solids
as specified by Condition 9, page 2 of the Munster
permit.
9. On or about October 27, 1979, the Munster Permit
expired. St. Bernard raappliad for a permit on February 2, 1983,
St. Bernard discharged pollutants without the authorization
of an effective NPDBS permit from about October 27, 1979 until
at least February 2, 1983, St. Bernard thereby violated Section
301 of the Act, 33 U.S.C. S1311.
10. St. Bernard is required by Special Condition
4.a,(1) of the Munster Permit to operate the Nunster wastewater
treatment facility in an efficient manner which would minimize
upsets and discharges of excessive pollutants. fha condition
also requires that St. Bernard provide an adequate operating
staff qualified to carry out the necessary operation, maintenance
and testing functions. St. Bernard has failed and continues
to fail to meet the operation, maintenance and testing requirements
of Condition 4.a.(I), and thereby violated the terms of the
Munster Permit.
11. St. Bernard Is required by Special Condition
2.c., page 8, of the Munster Permit, to submit Discharge
CWA Compliance/Enforcement 8-53 Guidance Manual 1985
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Chapter Eight Exhibit 8~3
- 5 -
Monitoring Reports no later than the 28th day of the month
following specified quarterly reporting periods. At relevant
timesi St. Bernard failed to submit timely Discharge Monitoring
Reports and thereby violated of the terns of the Munster Permit.
12. St. Bernard is required by Special Condition 3,
page 10, of the Munotor Permit to submit Men—compliance
reports providing information to EPA concerning violations of
the Act and the Munater Permit. Despite frequent violations
(luring relevant periods, St. Bernard failed to submit Non-
Ccnnplianca Reports in conformity with Special Condition 3
and thereby violated the terns of the Munster Permit.
II. Pursuant to Section 309(b) and (d) of the Act, 33
U.S.C. $1319(b) and (d), St. Bernard is subject to injunetive
relief and civil penalties not to exceed $10,000 per each
day St. Barnard discharged pollutants in violation of Section
301 of the Act, 33 U.S.C. $1311, or violated any permit condition
implementing sections 301 or section 306 of the Act, 33 U.S.C.
$S 1311, 1318. Unless restrained by Order of this Court,
St. Bernard will continue to* violate Section 301 of the Act,
33 U.S.C. $1311 and the terms and conditions of the permit.
14. Section 309(o) of the Act, 33 U.S.C. $1319(e),
providesi
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
CHA Compliance/Enforcement 8-54 Guidance Manual 1985
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Chapter Eight Exhibit 8-3
- 6 -
with any Judgment, entered against the
municipality in such action to the extent
that th* laws of that State prevent the
municipality from raising revenues.needed
to comply with such Judgment.
The State of Louisiana ia liable insofar aa its laws
prevent St. Barnard from raising revenues to comply with the Act
or prevent payment of any Judgment entered against St. Barnard.
WHEREFORE, the United states of America praya thati
1. St. Bernard be permanently enjoined from discharging
pollutants not authorised by the Muneter Permit and from all
future violations of the terrat and conditions of the Munater
Permit}
i
2. St. Bernard be ordered to undertake, on an expedited
schedule, a program, including but not limited to design, plans
and specifications and construction, to bring its treatment
plane discharges into compliance with the Act and the Hunster
Permitt
3* St. Bernard be ordered to develop and implement
programs to assure compliance with permit tarns and requirements,
including but not limited to proper operation and maintenance,
testing, submission of discharge monitoring reports an4 submission
of noncompliance reports;
4. St. Bernard be assessed, pursuant to Section
309(d) of the Act, 33 U.S.C. $1319(d), a civil penalty not to
exceed ten thousand dollars ($10,000.00) for each day of
CWA Compllaace/Enforeenenc 8-55 Guidance Manual 1985
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Chapter Eight Exhibit 8-3
violation of the Hunster Permit or of Section 301 of the Act,
31 U.S.C. -S1311.
S. Relief be awarded against tha State of Louisiana
pursuant to Section 309(e) of the Act, 33 U.S.C. Sl319(e)r
6. The United States be awarded the coats and
disbursements of this action; and
7. This Court grant tha United States ouch othor
relief as it nay deem just and proper.
Respectfully submitted,
CAROL B. DIMKINS >
Assistant Attorney General
Land and Natural Resources Division
JOHN VOL2
United States Attorney
Eastern District of Louisiana
By t
WILLIAM F. BAITY (J
Assistant United States Attorney
Hale Boggs Federal Building
-_IJew Orleans, Louisiana 70130
-------
Chapter Eight Kachlbit 8-3
- 8 -
PLEASE SERVE;
1. Mr. Nicholas Cusimano, President
St. Bernard Parish Police Jury
8201 Judge Parer Drive
Chalnetta, Louisiana 70043
2. Honorable David C. Treen
Governor of Louisiana
P. 0. Box 44004
Baton Rouge, Louisiana 70804
CWA Compliance/Enforcement 8-57 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-4
Sample Pretreatment Complaint
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA,)
)
Plaintiff,}
)
) Civil Action Ho,
NATIONAL PLATING COMPANY, )
INC., )
)
Defendant. )
"
COHPLAIMT
Plaintiff, United States of America, at the request of the
Administrator of the Environmental Protection Agency ("EPA"5,
alleges:
Introduction and Mature of Case
1. This is a a civil action pursuant to Section 309(b) and
(d) of the Clean Water Act, 33 O.S.C. S1319(b) and (d) (the "Act"),
concerning the discharge of pollutants in violation of pretreatment
standards under Section 307(b) of the Act, 33 U.S.C. §1317(b!,
and reporting requirements under Section 307(b) and 308(a) of the
Act, 33 U.S.C. SS1317(b) and 1318(a).
Jurisdiction
2. Jurisdiction is vested in thia Court pursuant to Section
309(b) of the Act, 33 U.S.C. S1319(b), and 28 U.S.C. «1345.
CWA Compliance/Enforcement 8-58 Guidance Manual 1985
-------
Chapter Eight __ Exhibit 8-4
-2-
Hotice of the commencement of this action has been given to the
State of Rhode Island.
3. Venue 13 proper in this court pursuant to 28 U.S.C.
Sl391(b) and (c) and Section 309(b) of the Act, 33 U.S.C. §1319(b),
since at all times relevant to this complaint this is the judicial
district in which the defendant was and is located and was and is
doing business. The claims stated herein arose in this judicial
district. •
Defendant
4. The defendant, National Plating Company, Inc. ("National"),
is a corporation organized and existing under the laws of the
State of Rhode Island. Defendant at all relevant times did ?nd
does operate an electroplating facility at or about 946 Eddy
Street, Providence, Hhode Island 02905 (the "facility").
5. Since approximately 1968, the defendant has been
discharging pollutants into a publicly owned treatment works,
("POTW"), as defined in 40 C.F.R. $403.3(o5, located in Providence,
Rhode Island and currently owned and operated by the Narragansett
Bay Commission ("NBC"),
FirstCause of Action:
National ProhibiteciDischarge Pretreatment Standards
6. The allegations of paragraphs 1 through 5 of this Complaint
are realleged and incorporated by reference herein.
CWA Compliance/Enforcement 8-59 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-4
7, Pursuant to Section 307(b) of the Act, 33 J.S.C. §1317{b),
the Administrator of the EPA established prohibited discharge
standards as part of the national pretreatment standards. These
standards took effect on August 25, 1978, and appear at 40 C.F.R.
$403.5.
8. Forty C.F.R. S403.5(b) of the prohibited discharge
standards prohibits non-domestic sources from introducing into a
POTH discharges with pH values below 5.0.
9. Section 307(d) of the Act, 33 O.S.C. S1317(d), prohibits
the operation of any source in violation of any applicable pre-
treatn»nt standard established pursuant to Section 307(b) of
the Act, 33 U.S.C. Sl317(b).
10. Defendant, a non-domestic source subject to 40 C.F.R.
S403.5{b>» has introduced into the NBC POTH discharges with a pH
lower than 5.0 on November 29, 1983 and November 14 and 15, 1984
and, on information and belief on other occasions, in violation
of 40 C.F.R. S4Q3.S{b) and Section 307{d) of the Act, 33 U.S.C.
Sl317(d).
11. Defendant continues to violate national prohibited
discharge standards and will continue to do so in violation of
Section 307 of the Act, 33 U.S.C. S1317, unless restrained by
this Court.
CWA Compliance/Enforcement 8-60 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-4
-4-
12. Section 309(b) and (d) of the Act, 33 U.S.C. «1319(b)
and (d), authorizes injunctive relief and the assessment of civil
penalties not to exceed $10,000 for each d-ay of violation of
Section 307 of the Act, 33 U.S.C. S1317.
Second Cause of Action;
National Categorical Pretreatment Standards
13. The allegations of paragraphs 1, 2, 3, 4, 5, and 9 are
realleged and incorporated by reference herein.
9
14. Pursuant to Section 307(b) of the Act, 33 U.S.C. $1317(b),
the Administrator of EPA established national categorical
pretreatment standards governing the electroplating Point Source
Category. These standards appear at 40 C.F.R. Part 413.
15. Existing non-integrated sources within the Elecroplating
Point Source Category were required to comply with the standards
established for cyanide and metals at 40 C.F.R. Part 413 by
April 27, 1984.
16. Defendant is an existing non-integrated source within
the Electroplating Point Source Category within the meaning of
and subject to 40 C.F.R. Part 413.
17. Since on or about April 27, 1984, defendant has introduced
into the NBC POTW electroplating process wastewaters that contain
levels of cyanide, copper, nickel, zinc and total metal which
exceed the applicable national categorical pretreatment standards
for cyanide, copper, nickel, zinc and total metal set forth in
CWA Compliance/Enforcement 8-61 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-4
-5-
40 C.F.R. Part 413, in violation of 40 C.F.R. Part 413 and Section
307(d) of the Act, 33 O.S.C. |1317(d>.
18. Defendant continues to violate national categorical
pretreatment standards and will continue to do ao in violation of
Section 307 of the Act, 33 O.S.C. §1317, unless restrained by
this Court.
19. Section 309(b) and (a) of the Act, 33 O.S.C. Sl319(b)
*
and (d), authorizes injunctive relief and the assessment of civil
penalties not to exceed $10,000 for each day of violation of
Section 307 of the Act, 33 O.S.C. §1317.
Third Cause of Action:
Pretreatment Reporting Requirements
20. The allegations of paragraphs 1, 2, 3, 4, 5, 9, 14, 15
and 16 are realleged and incorporated by reference herein.
21. Section 308(a) of the Act, 33 U.S.C. $1318(a), authorizes
the Administrator of the EPA to require the submission of reports
whenever necessary for the purpose of, inter alia, determining
whether any person is in violation of any pretreatraent standard.
22. Pursuant to Sections 307(b) and 308(a) of the Act, 33
O.S.C. $S1317(b) and 1318(a), the Administrator promulgated 40
C.F.R. S403.12(d), which requires, inter alia, an industrial user
subject to a categorical pretreatment standard to submit, within
90 days following the date for final compliance with applicable
CWA Compliance/Enforcement 8-62 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-4
categorical standards, a Compliance Report on discharge concentra-
tions and flows, status of compliance, and, if the industrial
user is not in consistent compliance, measures to bring the user
into compliance,
23. The date for final compliance with categorical pretreatment
standards applicable to the defendant was April 27, 1984.
Defendant was and is subject to 40 C.F.R. $403.12(d). Defendant
f
was required to submit its Compliance Report on or about July 26,
1984.
24. Defendant failed to submit a Compliance Report pursuant
to 40 C.F.R. §403.12(d) by July 26, 1984, or at any time thereafter.
25. Pursuant to Sections 307(b> and 308(a) of the Act, 33
U.S.C. SS1317(b) and 1318{a), the Administrator promulgated 40
C.F.R. $403.12{e), which requires, inter alia, an industrial user
subject to a categorical pretreatment standard to submit Periodic
Compliance Reports during the months of June and December after
the compliance date of tht pretreatment standard. The Periodic
Compliance Reports must report discharge concentrations and flows.
26. The compliance date of the pretreatment standards
applicable to the defendant was April 27, 1984. Defendant was
and is subject to 40 C.F.R. §403.12(e). Defendant was required
to submit its Periodic Compliance Reports in June and December,
1984, and will be required to submit Periodic Compliance Reports
in June and December of the following years.
CWA Compliance/Enforcement 8-63 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-4
-7-
27. Defendant failed to submit a Periodic Compliance Report
pursuant to 40 C F.R. §403.12(e) in June or December, 1984 or at
any cine thereafter.
28. Pursuant to Sections 307(b) and 308(aS of the Act, 33
U.S.C. SSl317(b) and 1318(a), the Administrator promulgated 40
C.F.R. $403.12(b), which requires, inter alia, an industrial user
who will be subject to a categorical pcetreatment standard to sub-
mit to the control authority -within 180 days of the effective
date of the standard, a report containing information about the
user and a schedule for compliance where pretreatment is necessary
to meet the standard. The report is referred to as a baseline
monitoring report ("BUR").
29. On July 15, 1983 EPA promulgated categorical pretreatment
standards for total toxic organics ("TTO") applicable to all
electroplating facilities. The effective date of those standards
was August 29, 1983. Defendant was and is subject to 40 C.F.R.
$403.12(b). Defendant was required to submit a BHR on total
toxic organics on or about February 24, 1984.
30. Defendant failed to submit a BHR on total toxic organics
to the control authority in accordance with the requirements of
40 C.F.R. S403.12(bS on February 24, 1984 or anytime therafter.
31. Each of defendant's failures to submit a Baseline Moni-
toring Report, a Compliance Report and Periodic Compliance Reports
CWA Compliance/Enforcement 8-64 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-4
-8-
violatrs 40 C.P.R. §403.12(b),(d) and (e) and Sections 307(d)
and 30i(a) of the Act, 33 U.S.C. SSl317(d) and 1318(a).
32. Defendant is continuing to violate Sections 307(d) and
308(a) of the Act, 33 U.S.C, SS1317{d) and 1318{a), and will
continue to do so unless restrained by this Court.
33. Section 309(b) and (d) of the Act, 33 U.S.C. S§1319(b)
and (d), authorizes injuntive relief and the assessment of civil
**
penalties not to exceed $10,000 for each day of violation of
Sections 307 and 308 of the Act, 33 U.S.C. SS1317 and 1318.
Prayerfor Relief
WHEREFORE, plaintiff respectfully prays:
1. That this Court issue an injunction enjoining the defend-
ant from the operation of its facility except in full compliance
with all applicable pretreatment standards and requirements
including prohibited discharge pretreatment standards, categorical
pretreatment standards, and reporting requirements.
2. That this Court issue an injunction requiring the
defendant expeditioualy to bring its facility into compliance
with all applicable pretreatment standards and requirements;
3. That the defendant be assessed civil penalties under
Section 309(d) of the Act, 33 U.S.C. S1319(d), in an amount not
to exceed 510,000 for each day that it has operated its facility
CWA Compliance/Enforcement 8-65 Guidance Manual 1985
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Chapter Eight Exhibit 8-4
-9-
in violation of Sections 307 and/or 308(a) of the Act, 33 U.S.C,
SS1317 and 1318U);
4. That the costs and disbursements of this action be
awarded to the plaintiff; and
5. That this Court grant such other relief as it may deem
just and proper.
F. HENRY HABICHT II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
LINCOLN C. ALMOND
United Statea Attorney
District of Rhode Island
EVERETT SAHMARTINO
Assistant U.S. Attorney
P.O. Box 1401
Providence, RI 02901
ANDREW S. HOGELAHD
Attorney
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
(202) 633-1307
OF COUSEL:
Maria L. Rodriguez, Esq.
Office of Regional Counsel
U.S. Environmental Protection
Agency
John F. Kennedy Federal Building
Boston, Massachusetts 02203
CWA Compliance/Enforcement 8-66 Guidance Manual 1985
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Chapter Eight Exhibit 8-5
Sample Motion for Preliminary Injunction
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO.
)
COMBINED WATER WORKS AND SEWERAGE )
SYSTEM BOARD, CITY OF WELLSBURG )
WEST VIRGINIA; and the STATE OF )
WEST VIRGINIA} )
)
Defendants* )
MOTION FOR A PRELIMINARY INJUNCTION
The United States of America, for and on behalf of the
Administrator of the United States Environmental Protection
Agency, hereby moves this Court pursuant to Rule 65 of the
Federal Rules of Civil Procedure for a preliminary injunction to
enjoin a deliberate past and present course of conduct by the
municipal defendant whereby it has engaged in the unlawful
discharge of pollutants into Buffalo Creek and the Ohio River,
contrary to the conditions set forth in National Pollutant
Discharge Elimination System (NPDES) Permit No. WV0026032.
Plaintiff seeks an order enjoining the City of
Wellsburg Combined Water Works and Sewerage System Board from:
(a) discharging collected screening, slurries, or other
solids (or runoff from such collected screenings, slurries, or
other solids) generated at a sewage treatment plant (hereinafter,
"plant") located at the confluence of Buffalo Creek and the Ohio
River, Brooke County, West Virginia, into any navigable water or
any tributary of a navigable water;
(b) discharging any pollutant from the plant except in
compliance with National Pollutant Discharge Elimination System
Permit No. WV0026832.
Plaintiff seeks this relief on the following grounds:
1. The Defendant has been discovered discharging
pollutants into the confluence of Buffalo Creek and the Ohio
River, at Wellsburg, West Virginia.
CWA Compliance/Enforcement 8-67 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-5
2. The discharges into Buffalo Creek and the Ohio
River are in violation of National Pollutant Discharge
Elimination System (NPDES) Permit No. WV00226832, issued by the
Environmental Protection Agency to the Defendant.
3. These violations will continue in the future unless
judicially restrained.
In support of this Motion, Plaintiff refers this Court
to the Memorandum of Law, Affidavit and the Complaint filed
herein.
WHEREFORE, Plaintiff respectfully prays that this Court
enter a Preliminary Injunction, as sought herein.
Respectfully submitted,
CAROL E. DINKINS
Assistant Attorney General
Land and Natural Resources Division
WAYNE R. WALTERS
Attorney, Environmental Enforcement
Section - Room 1714
United States Department of Justice
Land and Natural Resources Division
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) (FTS) 633-1066
WILLIAM A. KOLIBASH
United States Attorney
Northern District of West Virginia
By:
Assistant United States Attorney
OF COUNSEL:
Jed Z. Callen, Esquire
Office of Regional Counsel
U.S. Environmental Protection Agency
Region III
Philadelphia, Pennsylvania
CWA Compliance/Enforcement 8-68 Guidance Manual 1985
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Chapter Eight Exhibit 8-6
Sample Request for Admissions
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA,
Plaintiff, )
) Civil Action Bo. CA-3&-23S7(A)
* /
CLARK OIL AND REFINING COMPANY, )
Defendant. )
UNITED STATES' FIRST REQUEST
FOP. ADMISSIONS
Plaintiff, United States of America, oursuant to Rule 36
of che Ferderal Rules of Civil Procedure, requests Defendant,
, Clark Oil & Refining Company to admit: the truth of che
following matters within 30 days after service of this request.
DEFINITIONS
A. "Clark Oil" shall refer to Defendant Clark Oil
and Refining Coapany.
B. The "Garyville plane" shall refer to a petroleun
refinery located in Garyville, St. Mary's Parish, Louisiana,
including its wastewater ^treatment and related facilities.
C. "EP/." shall refer to the United States Environmental
?rot-3Ctl3n Agency.
0. "XPDES" shall refer to the National Pollutant
Discharge Elinination Svstem.
CWA Compliance/Enforcement 8-69 Guidance Manual 1985
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Chapter Eight Exhibit 8-6
- 2 -
E. "Pollutant" Is defined In §502(6) of che Clean
Water Act, 33 U.S.C. 11362(6).
F. "Discharge" Is defined in §502(12) and (16) of
Che Clean Water Act, 33 U.S.C. §1362(12) and (16), and includes
discharges of pollutants to navigable waters from any point
source.
G. "Point source" is defined in S502(U) of che
Clean Water Ace, 33 U.S.C. S1362C14).
H. "Navigable waters" is defined in 1502(7) of che
Clean Water Act, 33 U.S.C. S1362(7).
1. "OMR" shall refer to Discharge Monitoring P.eoorcs.
MATTERS FOE WHICH ADMISSIONS
ARE REQUESTED
1. Clark Oil is incorporaCed under the laws of the
'State of Louisiana.
2. Clark Oil nalntatns a principal place of business
in Garyville, Louisiana.
3. Clark Oil has owned and operated the Garyville
plant since approxinately August 1, 1581 to the present.
4. Clark Oil has discharged and continues to
discharge wacer pollutants from the Garyville plant through
Outfalls 001, 002 and 003 to che Mississippi River.
5. Ourfalls 001, 002 and 003 are point sources.
6. The Mississippi River is a navigable water.
CWA Compliance/Enforcement 8-70 Guidance Manual 1985
-------
Chapter Eight __ Exhibit 8-6
- 3 -
7. On or about August 21, 1981, EPA issued KPDES
Peasit No. LA0051993 to Clark Oil, which Permit was received
by Clark Oil.
8. Exhibit "A" attached hereto Is a true and
correct copy of NPDES Permit No. LA0051993.
9. On or about August 15, 1983, EPA issued
Administrative Order No. VI-83-161 to Clark nil, which Order
was received by Clark Oil.
10. Exhibit "I" attached hereto is a true and
correct copy of Administrative Order No. 71-83-161.
11. Clark Oil submitted DMR's Co SPA pertaining to
Outfalls 001, 002 and 003 at che Garyville plant for the
period from January 1, 1981 through September 30, 1984.
12. Exhibits 001-1 through 001-38 attached hereto
are true and correct copies of certain DMR's subnlrted to EPA
by Clark Oil pertaining to Outfall 001 at the Garyville plant
for the period January 1, 1981 through September 30, 1984.
13. The numerical values reported In Exhibits 001-1
through 001-38 attached hereto are true and correct.
14. Exhibits 002-1 through 002-15 attached hereto
are true and correct copies of certain DMR's submitted co EPA
by Clark Oil pertaining to Outfall 002 at the Garyville olanc
for the period April 1. 1981 through Seoteiaber 30, 1983.
15. The nanerlcal values reported in Exhibits 002-1
through 002-15 as cached hereto are true and correct.
CUA Compliance/Enforcement 8-71 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-6
16. Exhibits 003-1 through 003-16 attached hereto
are true and correct copies of certain DMR's submitted to EPA
by Clark Oil pertaining to Outfall 003 at the Garyville
plant for the period January 1, 1981 through September 30,
1983.
17, The nunerical values reported in Exhibits 003-1
through 003-16 attached hereto are true and correct.
Respectfully subnitted,
F. HENRY HABICHT II
Assistant Attorney General
Land and Natural Resources Divislor
GREGORY WEISS
Assistant United Statas Attorney
Eastern District of Louisiana
B:
REED tf. NEUMAN, Attorney
Environmental Enforc:Tenc Division
Land snd Fatural Resources Divisior
U.S. Department of Justice
Washington, D.C. 20S30
CWA Compliance/Enforcement 8-72 guidance Manual 1985
-------
Chapter Eight Exhibit 8-7
i
Sample Notice of Deposition
Upon Oral Examination
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Civil Action No. CA-34-2387(A)
v. )
)
CLARK OIL AND REFINING COMPANY, )
Defendant. )
NOTICE OF DEPOSITION UPON ORAL EXAMINATION
Please take notice chat Plaintiff, United States of
America, will take the oral deposition under oath of a person
or persons designated by defendant Clark Oil and Refining
Company (hereafter "Clark Oil"), pursuant to Rule 30(b)(6)
of the Federal Rules of Civil Procedure, to testify with
respect to the matters set forth below. Said deposition will
be taken before an officer duly authorized to administer the
oath, beginning at 10:00 a.m., Monday, January 14, 1985 at the
offices of the United States Attorney, 500 Canp Street, Mew
Orleans, Louisiana, and continuing through Friday, January 18,
1985, or until completed. Clark Oil is requested to designate
a person or persons knowledgeable about the operation of Clark
Oil, specifically regarding the natters listed below. Pursuant
to the Federal Rules of Civil Procedure, including Rules 30(b)(l)
and 34, Clark Oil shall bring with it to said deposition the
documents listed on Schedule "A" attached hereto.
CWA Compliance/Enforcement 8-73 Guidance Manual 1985
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Chapter Eight Exhibit 8-7
- 2 -
MATTERS FOR EXAMINATION
Unless otherwise noted, these natters refer to the
period from January 1, 1981 through and until the trial of
this action. Terns used herein are as defined in the United
States' First Set of Interrogatories and First Request for
Production of Documents to Clark Oil.
1. Accuracy of each and every pollutant parameter
and discharge value reported in Discharge Monitoring Reports
submitted by Clark Oil to EPA.
2. All methods, procedures and/or techniques for
computing monthly or daily average and daily maximum discharge
results as reported by Clark Oil to EPA in Discharge Monitoring
Reports.
3. Date, duration, source(s), nature, concentration.
quantity and/or discharge configuration and location of each
and every discharge of water pollutants exceeding the Garyville
permit limits or not expressly authorized by a permit at the
Garyville plant; all sampling, measuring, testing, and monitoring
and che results thereof done with respect to such discharges;
4. Date, duration, location, source and/or quantity
of each and every oil sheen, oil globules or oil spills,
known to Clark Oil. observed in the Mississippi River at or
near the Garyville plant.
5. Adequacy and conditions of the Garyville plant
and wastewater treatment facilities as acauired from Clark
Oil's predecessor in interest to comply with its NPDES permit,
including the refinery and its operation, the wastewater treatment
system, the nature, size and competence of the wastewater
treatment plant staff, particularly as the foregoing relate to
problems with compliance with the Garyville permit limits, and
when Clark inquired into such matters and/or discovered such
matters.
6. Monthly production figures for the Garyville
plant.
7. Daily and monthly influent pollutant loadings
in the Garyville plant's wastewater treatment system.
8. Design specifications and treatment capacitv of
the Garyville plant's wastewater treatment system.
CWA Compliance/Enforcement 8-74 Guidance Manual 1985
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Chapter Eight Exhibit 8-7
- 3 -
9, Facilities, operation and management of the
Garyville plant regarding monitoring, analysis and reporting
of water pollutant dischaiges; compliance with water pollution
control laws, regulations and permits; design, management
control or evaluation of reduction or the production process
insofar as ic m&v affect :he discharge of water pollutants;
training and supervision of employees working with processes
or equipment that produce or control water pollutants, design,
operation and maintenance of water pollution control eauionent,
and initiation and evaluation of budget requests for oollution
control and other capital equipment,
10. Any and all causes and possible causes for
discharges of pollutants from the Garyville plant exceeding
the Garyville permit limits or not expressly authorized by
the permit.
11. Each and every neasure considered by Clark Oil,
or by consultants working on behalf of Clark Oil, to reduce
water pollutant discharges at the Garyville plant and/or
achieve compliance with tne Garyville permit limits, including
the nature of any such measures, when it was considered, by
whoa it was considered or evaluated, the approximate costs and
impacts of such measures, and when and by what means any such
action was implemented and the cost, including tax consequences,
of doing so.
12. Any and all acts taken at the Garyville plane
to respond to the discharge or to prevent the future discharge
of pollutants not expressly authorized by permit, and all costs
such acts including capital and operation and maintenance.
13. Particulars of any reports submitted to EPA, in
writing or otherwise, by Clark Oil regarding discharges of
water pollutants from or operation of the Garyville plant.
Respectfully submitted,
JOHN VOLZ
United States Attorney
GREGORY WEISS
Assistant United States Attorney
Eastern District of Louisiana
_
REED W. NftJHAjl, Attorney
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Deoartment of Justice
Washington, D.C. 20530
CWA Compliance/Enforcement 8-75 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-8
Sample Interrogatories
UNITED STATES DISTRICT COURT
EASTERN DISfHCT OF LOUISIANA
UNITED STATES OF AMERICA. )
)
Flaimtiff, ) .
) Civil Action No. CA-84-2387(A)
v. )
CLASK OIL AND REFINING COMPAHY, >
)
Defendant. )
UNITED STATES OF AMERICA'S
FIRST SET OF IHTIRROGATQRIES
Pursuant to Rule 33 of the Federal Rales of Civil
Procedure, plaintiff United States of America hereby requests that
defendant Clark Oil and Refining Company answer under oath the
following interrogatories separately and fully in writing. Answers
are to be served upon counsel for the United States at the Office
of the United States Attorney for the Eastern District of Louisiana,
Hale Boggs Federal Building, 500 Camp Street, New Orleans, Louisiana
70130, within 30 days after service of this notice. The answers
hereto should include all information known up to the dace of
verification hereof.
Instructions
1. Identification of a natural person. Whenever in
these Interrogatories there is a request to identify a natural
person, state:
CWA Compliance/Enforcement 8-76 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-8
- 2 -
(a,) his full name;
(b) his present or last known business address;
(e) his presenc or last known employer and
position with that employer; and
(d) his employer and position an the time
relevant Co the particular interrogatory
involved.
2. Identification of persons with responsibility
for certain matters. Whenever in these interrogatories
there is a request to identify each person with responsibility
over certain matters, the request includes each person with
other than wholly clerical duties. The request is not limited
to the head of a department or section, but includes subordinate
employees other than clerical staff.
3. Identificationof an entity other than a natural
person. Whenever in these interrogatories there is a request
to Identify a "person" which is a business organization or
other entity not a natural person, state:
(a) the full name of such organization or entity;
and
(b) the present or laat known address of such
organization or entity.
4. Identification .of act or aetivit?. Whenever in
these interrogatories there is a request to identify an "act"
or "activity":
CWA Compliance/Enforcement 8-77 Guidance Manual 1985
-------
Chapter Eight ExhlbiC 8-8
- 3 -
*a) state each transaction or action constituting
the act or activity;
(b) 3-cate the date it occurred;
Cc) state the place it occurred;
(d) identify each document referring or relating
to the act or activity; and
(e) identify each person participating or engaging
in the act or activity.
5. Identification of a communication. Whenever in
these interrogatories there Lo a request to identify a
"communication":
(a) state the date of the communication;
(H) specify the place where it occurred;
(c) identify in accordance with Instruction 1
each person who originated, received,
participated, or was present during
such communication;
(d) state the type of communication (letter,
telegram, telephone conversation, etc.);
(e) identify in accordance with Instruction 7
each document relating or referring to, or
comprising such communication; and
(f) state the substance of the communication.
S. Identification of a meeting. Whenever in these
interrogatories there is a request to identify a "meeting"
state:
CWA Compliance/Enforcement 8-78 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
- 4 -
(a) the date of the meeting;
(b) the place of the meeting;
(e) an Identification in accordance with
Instruction 1 of each person attending
the meeting;
(e) the substance of the meeting; and
(d) an identification in accordance with
Instruction 7 of each document relating
or referring to the meeting.
7« Identification of documents. Whenever in these
interrogatortea there la a reemeat to identify a document,
state:
(a) its date;
(b) its author and signatory;
(c) the type of document (letter, memorandum,
contract, report, accounting record, etc.);
(d) its title;
(e) its substance;
(f) its addressee and all other persons receiving
copies;
(g) its custodian;
(h) its present or last known location; and
OTA Compliance/Enforcement 8-79 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
- 5 -
(1) If Che document was, but no longer is In
your possession or subject to your control,
state what was done with the document, who
disposed of It, why It was disposed of and
when it was disposed of.
8. Use of documents in Place of an answer. Whenever
a full and complete answer to any interrogatory or part of an
interrogatory is contained in a document or documents, the
documents, If appropriately Identified as answering a specific
numbered interrogatory or part of an interrogatory, may be
supplied in place of a written answer.
?« Numerical information. Interrogatories calling
for numerical or chronological information shall be deemed, to
the extent that precise fissures or dates art not known, to call
for estimates. In each instance that an estimate is given, it
should be identified as such together wich the source of Information
underlying the estimate. .
10. Sources of information. For each interrogatory
answer, identify each person who provided information considered
in preparing that answer, specifying the nature of the information
provided. In answering these interrogatories every source of
information to which defendant has access should be consulted,
regardless of whether the source is within defendant's immediate
possession or control. All documents or other information in
the possession of experts or consultants should be consulted.
CWA Compliance/Enforcement 8-80 Guidance Manual 1985
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Chapter Eight __ Exhibit 8-8
- fi -
12, Partial answers. If any Interrogatory cannot! be
answered fully, as full an answer as possible should be provided.
State the reason for your inability to answer fully, and give
any Information,'knowledge or belief defendant has regarding
the portion unanswered.
13. Tiae period. Unless otherwise indicated, these
interrogatories apply to the tine period from January 1, 1981
until the trial of this natter.
14. Supplemental answers. These interrogatories are
continuing; supplemental answers must be filed pursuant to Fed,
R. Civ. ?» 26(e) between the date these interrogatories are
answered and the time of trial.
15. Deletions from documents. Where anything has
been deleted from a document produced in response to an
interrogatory:
(a) specify the nature of the material deleted;
(b) specify the reason for the deletion; and
(e) identify the person responsible for the
deletion.
16. Claim of privilege. If objection is made to
answering any interrogatory or disclosing the substance of any
document on the basis of any claim of privilege, defendant Is
requested to specify In writing the nature of such Information
or documents, along with the nature of the privilege claimed,
30 chat the Court may rule on the propriety of defendant's
objection. In the case of documents, defendant should state
CWA Compliance/Enforcement 8-81 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
- 7 -
(a) the title of the document;
(b) the nature of the document (interoffice
memorandum, correspondence, report, etc.);
(e) the author or sender;
(d) the addressee;
(e) the date of the document,
(f) the name of each person to whoa the
original or a copy was shown or circulated,
(g) the names appearing on an? circulation list
relating to the document,
(h) the basis upon which privilege is claimed, and
(1) a summary statement of the subject matter of the
document in sufficient detail te permit the court
to rule on the propriety of the objection.
Definitions
1. "Person" unless otherwise specified means a
natural person, firm, partnership, association, corporation,
proprietorship, governmental body, government agency or commission
or any other orgnization or entity.
2. "Document" is defined as any recording of information
in tangible form. It includes, but is not limited to, memoranda,
reports, evaluations, correspondence, communications, intra-office
memoranda, inter-office comnunieations, agreements, contracts,
invoices, checks, journals, ledgers, telegrams, handwritten
notes, periodicals, pamphlets, computer or business machine
print-outs, accountants' work papers, accountants' statements
CWA Compliance/Enforcement 8-82 aiidance Manual 1985
-------
Chapter Eight Exhibit 8-8
- S -
and writings, notation or records of meetings, printers' galleys,
books, papers, speeches, public relations issues, advertising,
material filed with government agencies, office manuals, employee
manuals or office rules and regulations reports of experts, any
o?aer written matter, tape recordings or other sound or visual
reproduction materials, computer data bases, or any tangible or
physical objects however produced or reproduced upon which
words or other information art affixed or recorded or from
which by appropriate transcription written matter or a tangible
thing may be produced. Where a document is to be identified or
produced, all originals or if not available, copies, together
with all prior drafts, or all copies which are In any manner
different from the original, are to be identified or produced.
3- "Relating to" means constituting, defining,
containing, embodying, reflecting, identifying, stating,
referring to, dealing with, or in any way pertaining to.
4. "EPA" means the United States Environmental
Protection Agency.
5- "Discharge" includes a discharge of a pollutant or
pollutants to navigable waters from a point source.
6- "Pollutant" is as defined in 33 U.S.C, S1362.
7* "Clark Oil" shall mean defendant Clark Oil and
Refining Company, its subsidiaries, divisions, officers,
employees, agents, servants, and, unless privileged, its attorneys,
8. The "Sarvville plant" means the petroleum refinery
owned and operated by Clark Oil in Garyville, St. Mary's Parish,
CWA Compliance/Enforcement 8-83 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-8
. 9 .
Louisiana, including its wastewater treatment and related
facilities.
9. The "Garyville permit" means National Pollution
Discharge Elimination System (NPDES) Permit No. LA 0051993
as Issued, administratively extended or renewed.
10. The "Saiyville permit limits" mean any water
pollutant discharge limitations or conditions contained in
the Garyville penalt.
11. The "State" Beans the State of Louisiana, including
its departments, agencies and officials.
Interrogatories
1. State all water pollutant discharge limitations,
including any extensions or modifications, Clark Oil contends
have applied since January 1 , 1981 at its outfalls at the
Garyville slant, specifying the source of each of those
limitations.
2. Are say of the values contained in any Discharge
Monitoring Seports ("DMRs") submitted by Clark Oil to EPA or
the State relating to the Garyville plant inaccurate or
misleading? If so, for each such value state in what respect
it is inaccurate or misleading; what Clark Oil contends
the correct value Is, specifying Che basis for this calculation
and identifying any documents relevant to this calculation;
the reason for the original error; identify all persons
responsible for calculating the original value and the new
value; and state whether the allegedly correct value complies
CHA Compliance/Enforcement 8-84 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
- 10 -
with the Garyvtlle pa mi It Halts.
3. List each discharge of water pollutants from any
source at the Garyvtlle plant exceeding the Garyvilie permit
limits for such source, or any discharge of water pollutants
without a permit, stating for each such discharge the date
and duration of the discharge; the source; the quantity and
concentration of pollutant discharged; all sampling or testing
done with respect to the discharge; any explanation or reason
known to or hypothesized by Clark Oil why the discharge
exceeded Che Garyirille permit Haltsj and an identification
of all acts takes to respond to the discharge or to prevent
future discharges, including equipment changes, changes in
operating or maintenance procedures or operator training
or disciplinary actions.
4. Does Clark Oil contend that it could not prevent
the discharges listed in response to Interrogatory No. 3 above
from exceeding the Garyvillo permit limits? If so, specify
each and every such discharge and for each sttte all facts
supporting the contention that such violations were not
preventable.
5. Does Clark Oil contend that operator error
caused any of the discharges listed In response to Interrogatory
No. 3 above to exceed the Garyville permit Hales? If so,
idenetfy each employee whose error Clark Oil contends to have
contributed to the discharge; identify all acts of the employee
which are contended to have resulted In the discharge exceeding
CWA Compliance/Enforcement 8-85 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
. 11 .
the Garyville permit limits; identify the immediate supervisor
of the employee; and identify all documents or communications
containing or relating to instructions to the employee regarding
discharge limitations, reduction of pollutant discharges, or
measures to be taken in the event of discharges in excess of
the Garyville permit limits.
6* Does Clark Oil contend that equipment malfunction
or defect, including design defect, caused any of the discharges
listed in response to Interrogatory No. 3 above to exceed the
Garyville permit limits? If so, identify the type of equipment;
stats the manufacturer of the equipment, the model number and
any other identification number for the equipment; describe
the malfunction or defect; state in what manner the malfunction
or defect is alleged to have caused the discharge to exceed
the Garyville permit limits; Identify the persons responsible
for maintaining the equipment and/or preventing malfunctioning;
identify all documents containing instructions for maintaining
or servicing or preventing malfunction of the equipment;
identify the parsons responsible for purchasing or approving
the purchase of the equipment; identify all persons responsible
for review of the design, operation, or suitability of the
equipment; and state whether the equipment is still In Clark
Oil's possession and if not, where it is.
7. Does Clark Oil contend that it has not been
feasible co comply with any of the limitations contained in
CWA Compliance/Enforcement 8-86 Guidance Manual 1985
-------
Chapter Eight , Exhibit 8-8
- 12 -
the Garyville permit? If so, state the basis of this contention.
identifying all persons, including experts or consultants
with knowledge of the basis for this contention, and identitying
all documents relating to this contention,
8. During the week preeeeding each discharge identified
in response to Interrogatory No. 3 above, had Clark Oil made any
production process changes, including equipment or formulation
changes, which were designed to or had the effect of varying produci
time or the production process? If ao, describe any such process
changes, identifying any documents relating to such changes.
9. Describe each measure considered by Clark Oil
to reduce water pollutant discharges or to achieve compliance
with the Garyville permit limits, including but not limited to
modifications of production processes, and modifications of
pollution control facilities, including in the description
the nature of the measure, the period of time during which it
was considered, and an identification of the persons who
participated ia the eoasideration or evaluation of the measure,
identifying any documents relating to such consideration. If
any such measure was implemented, identify each action taken to
Implement it, specifying the dates, the action, the costs or
expenditures relating to each such act, Including operation and
maintenance costs, stating what portion of the expense, if any,
was eligible for investment tax credit and, if applicable, the
tax credit claimed, and identifying all documents relating to
CWA Compliance/Enforcement 8-87 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
- 13 -
such costs or expenditures and tax credits. -For treasures
not implemented, state the reason Che measure was- lot implemented
and* the estimated cost of the measure, including oaeration
and maintenance eosta.
10. Identify each person now or formerly in the
employ of Clark Oil who has or had responsibility with regard
to monitoring, analysis and reporting of pollutant discharges
from the Garyville plant; compliance by the Garyville plant
with water pollution control laws and regulations; design,
management, control or evaluation of production or the production
process at the Garyville plant insofar as it affects or nay
affect the discharge of water pollutants; training and supervision
of employees working with processes or equipment chat produces
or controls water pollutants; operation and maintenance of
water pollution control equipment at the Garyville plant; and
initiation and evaluation of budget requests for pollution
control or other capital equipment.
11. Identify all persons who work for or have worked
for Clark Oil, or who are or have been consultants to Clark Oil,
or who work for or have worked for consultants to Clark Oil,
who have knowledge of the nature and amount of water pollutants
discharged from the Garyville plant including sampling and
testing for 30Dj, TSS, COD, phenols, ammonia, sulfide, chromium
and oil and grease; measures considered or taken by Clark Oil
to reduce discharges of water pollutants from the Garyville plant;
CWA Compliance/Enforcement 8-88 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-8
- 14 -
budgeting, financial, and technical analysis of water pollution
eoncrol equipment and other capital improvement projects;
operation and maintenance of water pollution control equipment
at the Garyville plant: sources of wastewaters at the Garyville
plant; financial aspects of the Garyville plant, including
cash flows, ooerating expenses and profitability; and initiation
and evaluation of budget requests for pollution control or
other capital equipment.
12. Identify each person, firm or corporation, including
employees, when Clark Oil has consulted regarding water pollution
control at the Garyville plant, stating when such consultant
waa retained; the nature of any advice or opinion rendered by
the consultant; whether any documents were given to the
consultant in connection with its work, identifying all such
documents; whether any documents were preparad by the consultant
in connection with his work, identifying all such documents;
and whether any document wan prepared by Clark Oil or its
agents or other consultants relating to any advice or opinion.
or document prepared by the consultant, identifying all such
documents.
13. Identify all entities which were predecessors
to or connected with Clark Oil with regard to ownership or
operation of the Garyvilla plant, including subsidiaries,
divisions, affiliates, partnerships, joint ventures or other
entities, stata what discussions, if any, Clark Oil had with
CWA Compliance/Enforcement 8-89 Guidance Manual 1985
-------
Chapter Eight Exhibit 8-8
- 15 -
any such entity relating to the w.istewater treatment facilties
and compliance with the Garyville permit, and identify all
documents relating to such discussions.
14. State whether Clark Oil has any actual or
potential insurance coverage, including comprehensive liability,
applicable to any of the claims asserted in this action by
the United States. If so, identify the insurers and state
the policy number and the amount of the insurance, identifying
all such policies. State whether any insurance company has
ever performed an environmental risk assessment or other
study regarding Clark Oil's compliance with water pollution
control lava, identifying the company and the assessment or study.
15. Has Clark Oil ever orally reported to EPA or the
State, by telephone or otherwise, any discharge of pollutants
from the Garyville plant which exceeded the Garyville permit
limits? If so, identify each such oral report, giving exact
dates and times, all persons authorizing or making such reports,
all persons to whom such reports were made, and the substance of
each such report. Identify all documents relating to the above.
including any records of telephone calls, giving their present
location.
16. State each and every occurrence of oil sheen, oil
globules or oil spills in the Mississippi River observed at or
near the Garyville plant known to Clark Oil and Identify all
documents relating to the same including their present location.
CWA Compliance/Enforcement 8-90 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
- 16 -
For each occurrence state the exact dates and times Clark Oil
first became aware of such occurrence, the duration of the same,
whether the same was reported, orally or in writing, to the State
or EPA, and the names of all persons making or authorizing such
observances or reports and all persons to whom such reports were
made.
17. State the methods, procedures or techniques for
computing monthly or daily average discharge results reported
in Clark Oil's discharge monitoring reports for each and every
monthly reporting period from August. 1981. to the present at the
Garyville plant, stating for each month during the above period
the total number of times during each month that sampling was
conducted for each parameter in the Garyville permit and the
exact dates and times of such sampling; the total number of
samples used to'compute the monthly average for each parameter
and the specific method used to compute that average; all sampling
results for each parameter obtained during each month; the average
result for each parameter which was obtained, if different
from that reported in discharge monitoring reports for each
month; the sampling methods or techniques used; and identify
all documents relating to the above, including any statements
«t policy, procedures, schedules, or rationales relating
thereto.
18. State the methods, procedures or techntaues for
computing the daily maximum discharge results for each para-
meter in the Garyville permit for each and every monthly
CWA Compliance/Enforcement 8-91 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
- 17 -
reporting period from August, 1981 to the present at the Garyville
plant, stating for each month during the above period the total
number of times during each month chat sampling was conducted
for each parameter and the exact dates and tines of such
sampling; all sampling; results for each parameter obtained
during each month; the sampling methods or techniques used;
the methods, procedures or techniques employed in reporting
the results to the State or EPA in discharge monitoring
reports, including the reasons for employing such methods,
procedures or techniques; and Identify all documents relating
to the above, including any statements of policy, procedures,
schedules or rationales relating thereto, giving the present
location of all such documents.
19. State the rate of return on equity (the average
anticipated future value of the annual after tax income divided
by the total value of common shareholder interest) for Clark
Oil for each year since 1981; state all facts or other infomaation
supporting or relating to your answer and identify the person(s)
who provided the information.
20. State the interest rate on borrowed capital (long
tern debt) o£ Clark Oil for each year since 1980; state ail facts
or other information supporting or relating to your answer and
identify the person(s) who provided the information.
21 . State the eauity share of the total investment
of Clark Oil. [The eauity share is equal to the prooortion of a
CWA Compliance/Enforcement 8-92 Guidance Manual 1985
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Chapter Eight Exhibit 8-8
- 18 -
corporation's long-term financing which is provided by common
shareholders. It is a fraction, the numerator of which is the
sum of all common equity accounts on a corporation's balance
sheet including common stock, retained earnings, capital surplus
and any ohter accounts representing common equity investments.
The denominator of the fraction is given by adding to the
numerator the sum of the preferred stock account plus all long-
term debt incurred by the owner (excluding portions of such
debt in the current account).] State further each item in the
calculation. State all facts or other information supporting or
relating to your answer and identify the person(s) who provided
the Information.
22. State the depreciable life (minimum number of
years over which the particular pollution control equipment
may be depreciated) of the facilities installed at the Garyville
plant pursuant to the adminiscrative order issued by the
Louisiana Environmental Control Commission on June 24, 1982.
State all facts or other information supporting or relating to
your answer and identify the person(s) who provided the information.
23. Identify all persons having responsibility for
or otherwise having substantial knowledge of the financial
condition and affairs of Clark Oil and/or any parent or holding
company.
24. Identify all experts expected to testify at
trial, stating the subject matter on which the expert is
CWA Compliance/Enforcement 8-93 Guidance Manual 1985
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Chapter Sight
Exhibit 8-8
- 19 -
expected to testify, and the substance of the facts and
opinion to which the expert is expected to testify with a
ausaary of the grounds for each opinion.
25. Identify all witnesses other than those identified
in response to Interrogatory No. 24 above, who are expected
to testify at trial, summarizing their expected testimony and
identifying all documents upon which they intend to rely.
Respectfully submitted,
JOHN 70LZ
United States Attorney
Eastern District of Louisiana
By:
GREGORY C. WEISS
Assistant United States Attorney
eJ A!
REED W. NSUflAM, Attorney
Environmental Enforcement Section
Load and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
OF COUNSEL:
ELLIOTT P. LAWS
United States Environmental
Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
CWA Compliance/Enforcement
8-94
Guidance Manual 1985
-------
Chapter Eight Exhibit 8-9
Sample Request for Production of Documents
IN THE UNITED STATES DISTRICT COURT
FOR THE NOR::HERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) ~ Civil Action No. 84-CV-681
v. ) (MINER, J.)
)
GENERAL ELECTRIC CORPORATION, )
)
Defendant. )
UNITED STATES OF AMERICA'S FIRST
REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Rule 34 of the Federal Rules of Civil
Procedure, plaintiff United States of America hereby requests
that defendant General Electric Corporation produce and penile
this plaintiff to inspect, copy or photograph each of the following
documents of things which may ba in the possession, custody or control
of the defendant by the plaintiff, its attorney or someone acting on
the plaintiff's behalf. These documents are to be produced at
the Office of the United States Attorney for the Northern District
of New York, 369 Federal Building, Syracuse, New York 13260, within
within 30 days after service of this Request or auch other place
as counsel for the parties nay agree.
Instructions
!•• Document no longer In possession. If any document
requested Is no longer in the possession, custody or control
of defendant, state:
CVA Compliance/Enforcement 8-95 Guidance Manual 1985
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Chapter Eight Inhibit 8-9
. 2 -
(a) what was done with the document;
(b) when such disposition was made;
(c) the identity and address of the current
custodian of the document;
t
(d) the person who made the decision to transfer
of dispose of.che document;
(e) the reasons for transfer or disposition.
2. Sources of docuaenta. In responding to this
Request, every source of documents to which defendant has
access should be consulted, regardless of whether the source
is within defendant's immediate possession or control. All
documents in the possession of experts or consultants should
be consulted.
3* Tine period. Unless otherwise indicated, this
s
Sequest applies to ehe time period from July 1, 1977 until
the date upon which production occurs.
4. Supplemental Produceion. This Sequest is
continuing: defendant's response must be supplemented if
defendant obtains further or different information or documents
between the date of production and the time of trial.
5. Deletions from documents. Where anything hag
been deleted from a document produced in response to a request:
(a) specify the nature of the material deleted;
(b) specify the reason for the deletion; and
(c) identity the person responsible for che deletion.
CWA Compliance/Enforcement 8-96 Guidance Manual 1985
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Chapter Eight Exhibit 8-9
. 3 -
6. Slain of Privilege. If objection is made to
produce ion of any documents on Che basis of any claim of
privilege, defendant is requested to specif? in writing the
nature of such information or documents, along with the nature
of the privilege claimed, so that the Court may rule on the
propriety of defendant's objection. In the case of documents,
defendant should state:
(a) the title of the document,
(b) the nature of the document (interoffice
memorandum, correspondence, report, etc.).
(c) the author or sender,
(d) the date of the document,
(e) the name of each person to whom
the original or a copy was shown or circulated,
(f) the naaes appearing on any circulation list
relating to the document,
(g) the basis upon which privilege is claimed,
and
(h) a summary stateaent of the subject natter of
the document in sufficient detail to permit
the court to rule on the propriety of the
objection.
7* Inability to respond. Whenever defendant* is
unable to produce documents in response to a Request, state
the steps taken to locate responsive documents.
CWA Compliance/Enforcement 8-97 Guidance Manual 1985
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Chapter Eight Exhibit 8-9
- 4 -
8. Relation toparticular reouests. For each document
produced, indicate to which numbered paragraph it responds.
D«£lnittlonjj
1* "Person" unless otherwise specified means a
natural person, firm, partnership, association, corporation,
proprietorship, governmental body, government agency or commission
or any other organization or entity.
2. "Document" is defined as any recording of information
in tangible fora. It includes, but is not limited to, memoranda,
reports, evaluations, correspondence, communications, iatra-offiee
memoranda, inter-office communications, agreements, contracts,
invoices, checks, journals, ledgers, telegrams, handwritten
notes, periodicals, pamphlets, computer or business machine
print-outs, accountants' vork papers, accountants' statements
X ^
ana writings, notations or records of meetings, printers' galleys,
books, papers, speeches, public relations issues, advertising,
material filed with government agencies, office manuals, employee
manuals or office rules and regulations reports of experts, any
other written matter, tape recordings or other sound or visual
reproduction materials, computer data bases, or any tangible or
physical objects however produced or reproduced upon which
words or other information are affixed or recorded or from
which by appropriate transcription written matter or a tangible
thing nay be produced. The complete original, or a complete copy
if the original is not available, together with all prior drafts
CWA Compliance/Enforcement 8-98 Guidance Manual 1985
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Chapter Eight Exhibit 8-9
- 5 -
and all copies which are in any manner different from che original.
are to be produced.
3. "Discharge" includes a discharge of a pollutant
or pollutants to navigable waters from any point source.
4. "Relating to" means constituting, defining,
containing, embodying, reflecting, identifying, stating,
referring to. dealing with or in any way pertaining to.
5. The "facility" means defendant's facility located
in Wacarford, New York, and includes defendant's property
surrounding the facility. .
6. "Discharge" is defined in S 502(12) and (16) of
the Clean Water Act, 33 U.S.C. S 1362(12) and (16).
7. "Pollutant" is defined in S 502(6) of the Clean
Water Act, 33 U.S.C. S 1362(6).
s
8. "HPDES permit" means National Pollution Discharge
Elimination System Permit No. N.Y. 0008605 as renewed or modified,
and any New York State SPDES permit.
9. "NPDES limits" means any discharge limitations
or conditions contained in defendant's NPDES permit.
10. The "State" means the State of New York, including
any departments or agencies.
Requests for Production
1. All organizational charts of the Waterford facility.
2. Any organizational charts shoving che relationship
between the Waterford facility and defendant's headquarters, and the
CWA Compliance/Enforcement 8-99 Guidance Manual 1985
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Chapter Eight
Exhibit 8-9
- 6 -
relationship between the defendant corporation and any parent,
subsidiary or affiliated companies.
3. All permits or other documents authorizing water
pollutant discharges from the Waterford facility.
4. All documents relating to any test results, laboratory,
analyses, flow measurements or concentration analyses of any
discharge from the Waterford facility, including all discharge
monitoring reports, bypass reports, other reports on discharges
maintained by defendant or sent to any government entity, flow
logs and measurements, easts or analyses for Biological Oxygen
Demand ("BODs"), Total Suspended Solids ("TSS"), Total Kjeldahl
Nitrogen as N ("TIN"}, pi, phenols, copper, Oil and Grease, and
all documents used as the basis for or in preparation of such
documents. ~ ••
5. All documents which refer or relate to the quantitative
or qualitative characteristics including the toxicity, or chemical
or physical characteristics, of the Uaterford facility's discharges
of water pollutants.
6. All documents which refer or relate to the effects *
of the Uaterford facility's discharges on the water quality
of the Hudson River into which defendant discharges, or which
refer or relate to whether or not the facility's discharges
violate applicable water pollution control laws, including NPDES
limits.
CWA Compliance/Enforcement 8-100 Guidance Manual 1985
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Chapter Eight Exhibit 8-9
- 7 -
7. All documents relating to process or equipment
changes at the Wacerford facililty which were designed to, or had
the effect of, preventing or .reducing discharge of water pollutants.
8. All documents relating to change(s) in operating,
maintenance or inspection procedures at the Wacerford facility
which were designed to, or had the effect of, preventing or
reducing discharge of water pollutants.
9. All documents relating to difficulties encountered
by defendant in meeting NPDES limits, or other water pollutant
effluent limitations at the Waterford facility.
10. All documents relating to consideration by defendant
of whether to install, not to install and to defer installation of
water pollution control equipment at the Waterford facility.
11. All documents relating to consideration by defendant
of whether to implement, not to implement and or defer implementation
of process changes that would affect pollutant discharges at the
Waterford facility.
12. All documents relating to the advantages or dis-
advantages or potential implications to defendant of delaying
installation of water pollution equipment at the Waterford facility.
13. All documents relating to the capital, operating
or maintenance costs of water pollution control equipment installed,
or considered for installation, at the Waterford facility to
achieve, or contribute to the achievement of, applicable water
pollution control standards, including NPDES limits.
CHA Compliance/Enforcement 8-101 Guidance Manual 1985
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Chapter Eight Exhibit B-9
. 8 -
14. 411 documents relating to the types, kinds or numbers
of pieces of equipment that correspond to the cost figures contained
in die documents produced in response to Request 13 above.
IS. All documents relating to the choice of rate of
recurs, or discount rate, to be used in calculating a discounted
cash flow for, or otherwise analyzing, a particular investment
by defendant.
16. All documents relating to decisions to include or
Co exclude water pollution control equipment as alternatives in
deciding upon which capital assets corporate resources should be
expended (e.g., corporate planning documents or their equivalent
containing such references).
17. All documents relating to criteria used by
defendant to determine whether to include or to exclude water
s
pollution control equipment at the Waterford facility within
a range of capital investment alternatives.
18. All documents, including bid requests, bids,
estimates, contracts or staff memoranda, which relate to any
water pollution control equipment installed, or being installed,
at the Waterford facility.
19. All documents which relate to the costs of any
equipment or work discussed in Request 13 above, if not
already there supplied.
CWA Compliance/Enforcement 8-102 Guidance Manual 1985
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Chapter Eight Exhibit 8-9
20. All documents ufaich relate to defendant's
consideration or evaluation of the equipment referred to in
Request 18 above, or any other equipment designed or intended
to reduce water pollutant discharges by the facility.
21. All documents containing instructions to employees
at the Waterford facility regarding the level or amount of water
pollutant discharges.
22. All documents containing instructions to employees
regarding steps to be taken in the event of an unauthorized
discharge.
23. All documents, including training manuals,
relating to operating, testing or maintenance procedures with
respect to water pollution control equipment.
24. All documents evaluating facility procedures or
X
alternative procedures for reducing water pollution discharges
at the Waterford facility.
25. All documents analyzing or evaluating facility
equipment with respect to reduction of water pollutant discharges
at the Waterford facility.
26. All charts or diagrams illustrating facility
operating conditions and production flow at the Waterford facility.
27. All documents relating to control technology,
devices or other equipment for the control or reduction of
water pollutant discharges at the Waterford facility.
C¥A Compliance/Enforcement 8-103 Guidance Manual 1985
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Chanter Eight Exhibit 8-9
- 10 -
28. All documents relating to meetings, discussions,
or oral communications regarding water pollutant discharges
at the Waterford facility.
29. All documents or corporate records relating to
meetings, discussions or other oral communications regarding
technology, personnel training, inspection, maintenance or
any other means to reduce water pollutant discharges, or to
achieve compliance with HPDES effluent limits at the Wacerford
facility.
30. All documents relating to meetings, discussions,
or any other otal communications relating to the cost of
measures for compliance with the NPDES effluent'limitations at the
Waterford facility.
31. All documents relating to complaints received
by defendant from any source regarding water pollutant discharges
from the Waterford facility.
32. All documents, including minutes, relating to
meetings of defendant's Board of Directors, officers, management
personnel, facility personnel or other agents of defendant
regarding water pollutant discharges, health or environmental
effects of water pollutant discharges or compliance with the NPDES
permit for the Waterford facility.
33. All studies, evaluations, tests, reports or other
documents prepared by any contractor, agent or employee of defendant
or any other person relating to water pollutant discharges,
CWA Compliance/Enforcement 8-104 Guidance Manual 1985
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Chapter Eight Exhibit 8-9
- 11 -
including health or environmental effeeta, or compliance with the
NPDES permit; at the Wacerford facility.
34. 411 documents relating to inquiries made into the
causes of water pollutant discharges at the Waterford facility not
authorized by NFBSS permit.
35. 411 documents relating to procedures for reporting
water pollutant discharges, or violations of water pollution laws
or regulations, to ZPA or the State.
36. 411 documents chat refer or relate to contacts
of any kind between officials of the Federal Government
(including but not limited to EPA) or the State, and persons
representing or acting on behalf of defendant relating ia
any way to discharge of water pollutants by the Waterford
facility.
37. 411 documents prepared for or furnished ,to any person
retained by defendant as a consultant or expert in connection
with the subject matter of this case.
38. 411 reports, memoranda, analyses, computations or
other documents, including drafts, prepared by any person retained
by defendant as a consultant or expert in connection with the
subject matter of this case.
39. 411 documents on which any witness intends to r.ely.
4.0. 411 docaents relating to defendant's defenses and
affirmative defenses.
CWA Compliance/Enforcement 8-105 Guidance Manual 1985
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Chapter Eight
Exhibit 8-9
- 12 -
41. All documents defendant Intends to rely on or
introduce into evidence at trial.
42. All documents identified in response to the United
States' First Set of Interrogatories.
43. All documents relating to defendant's or the
Vaterford facility's document retention policies.
FREDERICK J. SOILL1N, JR.
United States Attorney
Northern District of New York
CRAIG^A. "BENEDICT /
Assistant United States Attorney
Northern District of Hew York
369 Federal Building
100 South Clinton Street
Syracuse, ^Rpw Yp-iTk 13260
?'. GRIGQsr Attorney
nental Enforcement Section
Natural Resources Division
U.S. Department of Justice
Washington, D. C. 20530
202-633-2056
OF COUNSEL;
WILLIAM C. TUCKER
Office of Regional Counsel
U.S. Environmental Protection Agency
26 Federal Plaza
New York, Hew York 10278
CWA Compliance/Enforcement
8-106
Guidance Manual 1985
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Chapter Eight Exhibit 8-10
Sample Motion for Summary Judgment
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OP LOUISIANA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civ. No. 83-3201
) Section "K"
ST. BERNARD PARISH and )
STATE OF LOUISIANA, )
>
Defendants. )
PLAINTIFF'S HOTIO8 FOR PARTIAL SUHHAR?
JUDGHENT ON ISSUES OF LIABILITY
Pursuant to Rule 56, Fed. R. civ. p., and for the
reasons stated in the attached memorandum, the United states
moves for partial summary judgment on the issues of liability.
In particular, the United States seeks summary judgment on
its claims that:
(1) defendant St. Bernard Parish on 73
occasions failed to comply with monitoring
and reporting conditions of its HPOES permit,
in violation of permit conditions implementing
33 U.S.C. 1318 in a permit issued under 33 U.S.C.
1342 by a Regional Administrator of the United
States Environmental Protection Agency; and
(2) from October 28, 1979, to and including
the present, defendant St. Bernard Parish
CWA Compliance/Enforcement 8-107 Guidance Manual 1985
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Chapter Eight
Exhibit 8-10
-2-
discharged pollutants Into waters of the United
States without an NPDBS permit authorizing the
discharge, in violation of Section 301 of the
Clean Water Act.
Respectfully submitted,
JOHN VOLZ
United States Attorney
Eastern District of Louisiana
By.
WIU.IAH F. BAITY
Assistant United States Attorney
Hale Boggs Federal Building
New Orleans, Louisiana 70130
(504) 589-3518
___ ..... „ ......... ^
REED MEOMAN
Attorney
Environmental Enforcement Section
Land and Natural Resources Division
United states Department of Justice
Washington, D.C. 20530
(202) €33-4059
ALAN H. ECKERT
Senior Litigator
Office of General Counsel
United States Environmental
Protection Agency
Washington, D.C. 20460
CHA Compliance/Enforcement
8-108
Guidauce Manual 1985
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Chapter Eight Exhibit 8-10
-3-
OF COUNSEL:
ELYSE 0IBIAGIO-HOOD
Office of Enforcement and
Compliance Monitoring
United states Environmental
Protection Agency
Washington, O.C. 20460
(202) 475-8187
RALPH CORLEY
Office of Regional Counsel
United States Environmental
Protection Agency
Region VI
1201 Elm St.
Dallas, Texas 75270
CWA Compliance/Enforcement 8-109 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OP LOUISIANA
UNITED STATES OP AMERICA,
Plaintiff,
v.
Section "x"
ST. BERNARD PARISH and
STATE OF LOUISIANA,
Defendants.
Civ. No. 83-3201
PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEPENDANT'S MOTION
FOR SUMMARY JUDGHENT AND IN SUPPORT OF MOTION FOR PARTIAL
SUMMARY JUDGMENT ON ISSUES OP LIABILITY
In the attached notion, the plaintiff United states
naves under Rule 5«, Fed. R. Civ. p., for partial summary judg-
ment on issues of liability for violations of the Clean water Act,
In particular, the United States seeks summary judgment on
defendant St. Bernard Parish's liability for its discharges
of pollutants into "water* of the United States* without a
valid NPDES permit from October 28, 1979 to the present tine,
in violation of the Act {Complaint, Paragraphs 7, 9), and its
liability, during the period when it held a valid NPDES permit,
for repeated violations of its requirements for the submission
of discharga monitoring reports and non-compliance reports
(Complaint, Paragraphs 11 and 12). This memorandum also
states plaintiff's grounds for opposing the Motion for Summary
Judgment filed by defendant St. Bernard Parish on or about
April 3, 1984.
CUA Compliance/Enforcement 8-110 Guidance Manual 1985
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Chapter Sighc Exhibit 8-10
-2-
I. STATUTORY AND REGULATOR* BACKGROUND
Before 1973, federal water pollution control efforts
wort directed towards assisting states in achieving water
quality standards, states were required to develop water
quality standards for'interstate waters within their boundaries
according to intended uses (e.g., agriculture, drinking water
supply, fish and wildlife management), taking into account
the water's ability to assimilate the pollution. Concluding
that water quality standards alone were not adequate to restore
and maintain the integrity of the nation's waters. Congress
enacted the Federal Water Pollution Control Act Amendments of
1972, PUD.L. Ho. 92-500, 86 Stat. Sli, 33 O.S.C. 1251 et aeq.
S. Rep. Ho. 93-414, 92d Cong., lat Sesa. S (1971), reprinted
in 2 A Legislative History of the WaterPollution ControlAct
Amendments df 1972 In U2fi (19731 (hereinafter "Legislative
Hlstory'Jj Eg* v. StateWater Resources Control Board, 426
U.S. 200, 202-206 (1976). Adding to the water quality approach
established in the existing statute, the 1972 Amendments (now
referred to as the Clean Wafior Act) established a detailed
regulatory system for technology-based standards to control
water pollution from point sources. ]_/ The system includes
|/ 'Point source* is defined in Section 502(14) of the Act
~ to meant
any discernible, confined, and discrete
conveyance, including but not limited to,
any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling
stock, concentrated animal feeding operation,
or vessel or other floating craft, from which
pollutants are or may be discharged. Thin
term does not include return flows from
Irrigated agriculture.
CWA Compliance/Enforcement 8-111 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
. 3 -
both substantive control requirements and procedures for
putting those controls into effect.
The Act directed the Administrator to promulgate
effluent limitations representing the degree of effluent
control which can be achieved by point aources using variouft
levels of pollution control technology. E.t. duPont de
Nemoura tCo. tf. Train. 430 U.S. 11J, 126-238 11577). Fublicly
owned treatment works (POfHs) were required to meet effluent
limitations based on secondary treatment £/ by July 1, 1977.
Section 301(b)(1)(B), 33 U.5.C. 1311(b)(1)<9). To ensure
compliance with these effluent limitation standards, and
water quality standards and other requirements (see Section
301{bHlHCJ), Congress, in Section 402 of the Act,
33 U.S.C. 1342, established the National Pollutant Discharge
Elimination Systtm (NPDES). Th« CM* prohibits tht "Discharge
of any pollutant,* _3/ from a point source, Section 502(6), 33.
U.S.C. 1362(6), into the Nation's waters unless such discharge
2/ Secondary treatment, defined in 40 C.f.R Part 133,
involves uses of biological processes, primarily
decomposition, with or without chemical disinfectants,
to remove organic wastes which are not removed by mere
screening airl sedimentation, which is termed 'primary
treatment."
3/ The term "discharge of a pollutant,* as utilized in
*~ Section 301{a) and elsewhere in the Act, is defined in
Section 502(12), 33 U.S.C. 1362(12), to mean:
any addition of any pollutant to navigable
water from any point source * * *.
(continued)
CWA Compliance/Enforcement 8-112 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
- 4 -
1* in compliance with Section 402. Section 301, 33 U.S.C. 1311i
EPA v». State Water Resources Control Board, supra, 426 U.S.
at 205. SPUES permits under Section 402 are issued by EPA or
by • state agency with an approved NPDES program. 4/
the CHA'limita the term of an NPDES permit to five
years. Section 402(b)UHB), 33 U.S.C. 1342(b)(l)(B). All
NPDES permittees must submit an application for renewal of a
permit at least 180 days prior to the expiration date of the
permit. 40 CFR 5122.21(0)11983). When a timely and suffi-
cient application for reissuance has been made to EPA and the
(continued from previous page)
The tep» "pollutant" is defined in Section S02{6» of the Act,
33 U.S.C. 1362(b), to aeani
dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological
materials, radioactive materials, heat,
wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, muni-
cipal, and agricultural waste discharged
into water.
The terra 'navigable waters" is defined in Section 502(7) of
the Act, 33 U.S.C. 1362(7), to meant
* * * the waters of the United states, including
the territorial seas.
The tern "point source" is defined in Section 502(14) of the
Act, n. 1, supra.
,47 Thirty-six states operate their own NPDES programs. The
State of Louisiana, however, does not have an approved
NPDES program, and EPA thus has permitting authority within
the State.
CWA Compliance/Enforcement 8-113 Guidance Manual 198S
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Chapter Eight Exhibit 8-10
- 5 -
Agency 14 unable to reissue 'the permit prior to th* stated
expiration date, the permit remains in full force and effect
until final action on the application. However, if no timely
renewal application la submitted, the permit expires. 5 U.S.C.
5S3(c)j 40 C.r.R. S122.6 (19831. See also Costic v. Pacific
Legal Foundation, 445 U.S. 190, 210-211 n. 13 (1980).
Section 509(bill) of the CWA grants any interested
person the right to judicial review of the Administrator's
"action * * * in approving or promulgating any effluent
limitation or other limitation under sections 301 * * *" ,
(33 U.S.C. 1369(b)(l)(CM, and 'in issuing or denying any
permit under section 402 * * *" (33 U.S.C. 1369 (bMlHfl).
Judicial review is limited to the appropriate court of appeals
upon petition made within 90 days after the challenged action
of the Administrator. 33 U.S.C. 1369(b)(l). This review is
exclusive of any other potential avenue for review, including
in an enforcement proceeding. Section 509(b)(2), 33 U.S.C.
I369(b)(2), provides)
(2) Action of the Administrator with respect
to which review could have been obtained
under paragraph (1) of this subsection
shall not be subject to Judicial review
in any civil or criminal proceeding for
enforcement.
Section 309 of the Act provides broad federal
enforcement authority to issue administrative orders and to
sue in United states district courts to compel compliance
and for imposition of civil and criminal penalties. Section
30f, 33 U.S.C. 1319.
CHA Compliance/Enforcement 8-114 Guidance Manual 19SS
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Chapter Eight , Exhibit 8-10
- 6 -
!I. STATEMENT
Defendant St. Barnard Parish owns and operates th* Kunstar
Plant, a POTW, in Meraux, Louisiana* Answer, 16. In Ii74»
th* parish submitted an application for an NPDES permit for
diceharnai froa the Munseec Plant into th« Forty Arp«nt Canal.
Affidavit of Shirley Bruce, Attachment T (hereafter 'Bruce
Affidavit*), Exh. A. i/ EPA isau*d the permit on September 28,
1974, affective October 2i, U74. Answer, IS. the permit
expiration data was sat at tha statutory maximum of five
years after issuance on October 27, 1979. Exh. B to Bruce
Affidavit at 1. ,
The interim and final effluent limitations (maximum allowable
pollutant discharge levels, aee Section 502(11) of the Act, 33
U.S.C. 1362(11)) in the pot-rait were identical, £/ setting 30-day
average and 7 day average limitations on five-day biochemical
V Ms. Bruca's affidavit re.fers to 'Attachments' to tha
affidavit, he refer to them as 'Exhibits' to avoid
confusion wiih the Attachments to this Memorandum
j|/ Tha permit limited flow from the Munstcr Plane to 2.S
million gallons per day (mgd) monthly avirage, and a
maximum of S.O on any day. The permit also contained the
following additional effluent limitations!
30-day average 7-day average
Biochemical Oxyyen 30rog/l 4Smg/l
Demand (BOO;)
Total Suspended 40og/l SOmg/1
Solids (TSS) .
(continued)
CWA Compliance/Eiiforceiaent 8-115 Guidance Manual 1985
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Chapter Eight Ezhlbit 8-10
oxygon demand (BOOj), total suspended solids (TSS), and fecal
col I form bacteria. The final effluent limitations vert
effective only until Nay 1, 197?! but the permit included
more stringent "projected effluent limitations' and required
the Pariah to prepare and submit plants to meet these more
stringent limitations *at the earliest possible date.* id.,
Special Condition l.b., p. S. The burden is on the moving party "to establish the
absence of a genuine issue as to any material fact, and that he
is entitled to a judgment as a matter of law.* Bcnton-Volvo-
Hetairie, Inc. v, Volvo Southwest, Inc.. 471 P.2d 135, 13S (Sth
Cir. 1973K See also Union Planters National Leasing, Inc. v.
Moods, 687 r.2d 117 (Sth Cir. 1982).
(continued from previous page)
Exh. B to Bruce Affidavit at 5. The terms *7-day average*
and *30-day average" were defined as th* arithmetic mean of
all effluent samples collected within a period of seven or
thirty consecutive days, respectively. Id. at 6.
CWA Compliance/Enforcement 8-116 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
.8.
The United States willingly assumes this burden. An
shown by defendant's admissions and other (acts as to which
there ean b* no real dispute, the defendant on many occasions
violated requirements of its NPDES permit. Moreover, because
of defendant's failure to fila an application for renewal of
its NPDES permit, defendant has since the fall of 1979 been
discharging pollutants without a permit in violation of the
Clean Water Act* The facts are set forth under Local Rule
3.9 in Plaintiff's Statement of. Material Facts as to which
Tiiere Is Ho Genuine Issue to be Tried, Attachment A, TJ
In order to prevail on its claim of permit violations,
the United States must show that defendant violated the terms
of its NPDES permit. Xn order to prevail on its claim of
unlawtvl discharges, the United States must show that the Parish
discharged pollutants without a permit. The Clean Water Act
provides tor 'appropriate relief, including a permanent or
temporary injunction,* and penalties of up to 510,000 per day
of violation, Section 309(b), (d), 33 U.S.C. 1319(bl, (d),
*
*or' *ntM alia, * 'violation of any permit condition or
limitation* implementing the regulatory provisions of the
Act. Section 309(1)0), 33 U.S.C. 1319(a)(3l. these
regulatory provisions inelud* Section 308, 33 U.S.C. 1318,
2/ The Parish's Motion for Summary Judgment failed to comply with
~ Local Rule 3.9. In the interest of expediting the decision, t*\e
United States is not fili-ty n notion to Strike. See Local Rule 3.16.
CWA Cowpliaace/Enforcen»at 8-117 Guidance Manual 1985
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Chapter Eight Exhibit 8-iO
. 9 -
authorizing tho Administrator to esquire the owners or operators
of a 'point source* to * install* use and maintain • • *
monitoring equipment or methods • * * (and] provide such other
information aa he may reasonably require.* Moreover, it is un-
lawful for any 'person* 8/ to "discharge* a 'pollutant* fron a
"point source* 9/ without an NPDES penult. See pp. 3-4, supra.
The sane penalties apply as for permit violations. Section
309(d), 33 U.S.C. 1319(d).
Defendant St. Bernard Parish admits it is a 'municipality'
and therefore a person under the Clean Water Act. Answer, 13.
Thus in order to prevail on its claims of permit violations, ,
the United states need only show that the defendant at relevant
times failed to comply with its permit terms. To prevail on
its claim that the Parish has discharged without a permit,
the United States must show that the defendant (1) 'discharged'
(2) 'pollutants* (3) into 'waters of the Unite** States* (4)
without an NPDES permit.
It is not, however, necensary for plaintiff to show intent.
The Senate Report discussing the rationale of Section 301 indicates
that the provision was modeled on Section 1} of the River and
Harbors Act of 1899, 33 U.S.C. 407 (referred to as the Refuse-Act),
B/ The term "person" is defined to include a "municipality,* such
~ as St. Bernard Parish. Section 502(4), 11 U.S.C. 1362(4), (5),
2/ toe definitions of the terras 'discharge,* "pollutant*,* and
•point source,* see notes 2 a.-16 4, aupra.
CtfA Coopllance/Inforeenent 8-118 Guidance Manual 1985
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Chapter Eight
Exhibit 8-10
-10-
and was intended to prohibit all discharges of pollutants,
regardless of the motivation or fault loading to the discharge!
The Committee believes that th* no-discharge
declaration in Section 11 of the 1899 Refuse
Act is useful as an enforcement tool. There-
fora, this section [Section 3011 declares the
discharge of pollutants unlawful. Th* Com-
mittee believes it is important to clarify
this pofntt no one has th* right to pollute.
2 Legislative History at 14*1. See also, United states v.
White Fuel Corp., 498 P,2d 619, 622 (1st Cir. 1974) (Refuse
Act is strict liability statute!. Similarly, Section 301 of the
Clean Hater Act has been held to set a strict liability standard.
United States w. Earth Seiencea, Inc., 599 ?.2d 368, 374 <10th
Cir. 1179). As the court stated in Unitedstates v. Amoco Oil Ca.,
No. 80-0301-CV-w-o, slip op. at 15 (W.D, Ho. Jan. 3, 1984)
(Attachment 0)t
The liability imposed under Sl319(d) is a
variety of strict liability, and neither
fault nor intent are relevant thereto,
eicept in connection with the amount of
penalty imposed. (Citations omittert.]
*
IV. THE PARISH REPEATEDLY VIOLATED THE MONITORING AND REPORTING
CONDITIONS Of ITSPERMIT
As indicated above, the Parish** HPDES permit
required it to measure several effluent chaiacteristics of
the Hunster Plant's discharge — flow, BOD;, total suspended
solids, settleable solids, pH, and fecal coliform bacteria.
Flow was to be measured daily, sjsttleabie solids twice weekly,
and the other characteristics weekly. The Parlih was then
required to summarize this information monthly on a Di
CWA Compliance/Enforcement
8-119
Guidance Manual 1985
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Chapter Eight Exhibit 8-10
- 11 -
Monitoring Report fora and to report the results to EPA
quarterly. Exh. B to Bruce Affidavit at 6-10. The Parish
has eatsblisnad a consistent pattern of non-compliance with
the monitoring and reporting requirements of its permit. For
purposes of this notion, plaintiff seeks sunitary Judgment
«
respecting 73 specific instances of failure to monitor and
report effluent characteristics. A list of thes<* vielations
of Condition 2, requiring the submission of DMRs, is attached
as Attachment B.
The violations are established by the defendant's
own Discharge Monitoring Reports, which are agency records
authenticated by the Bruce Affidavit, at Exh. C. Attachment
B summarises the instances where the reports fall to show
information required by the permit to Be reported.
V. SINCE 1979 THE MONSTER PLANT HAS DISCHARGED POLLUTANTS WITHOUT
ANHPDE3 PERMITISVIOLATION OF THE CHA
The United states is entitled to summary Judgment on its
*
claim that the Munster Plant has discharged without an NPDES
permit from October 2*, 1979, the day after its NPDES permit
expired, to the present time. Defendant undeniably lacks an
NPOES permit. The Munster Plant "discharges' sewage every
day to the Forty Arpent Canal. See Declaration of Robert
Killer, Attachment E. "Sewage* is a "pollutant.* Section
502(6), 33 U.S.C. 1362(8!. If these daily unperwitted discharges
are into a 'water of the United States,* all the elements of
a violation are established. Although defendant t'n its
Motion for Summary Judgment claims that the Forty Arpent
CHA Compliance/Enforcement 8-120 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
- 12 -
Canal is not 'waters of tha United statoa,* this claim is raised
in tha wrong court* ten years too latt.
A* Defendant has no NPDES Permit,
Extension of.expired NPDCS permits is governed by
5 U.S.C. 538(c)» which provides in relevant parts
* * * When th* licensee has made timely and
sufficient application for a renewal or a
new license in accordance with agency rules,
• license with reference to an activity of a
continuing nature does not expire until the
application has been finally determined by
the agency.
EPA rules, in conformity with this provision, provide that
NPOES permits are automatically extended if renewal applications
are "timely' and 'complete.' 40 C.F.R. $122.6(a)(lH1983).
Under 40 C.F.R. $122.21(d), a renewal application Is timely only
if submitted at least 180 days before expiration of the existing
permit. The same requirement has been continuously in effect
Since 1973, see 40 C.f.R. J125.12(J)(1978), 38 Fed.Reg. 13533
(lay 22, 1973), and was in effect at the time the Hunster Plant
permit expired in 1179, see *40 C.F.R. f$ 122.10, 121.12 (1979J.
Defendant's NPDES permit for discharges from the
Nunster Plant expired on October 27, 1979. Csh, B to Bruce
Affidavit at 1. !fet defendant failed to submit a renewal
application u.itil February 2, 1983, more than three years
after the permit expired. Exh. E to Bruce Affidavit. Merely
submitting an application, of course, does not authorize the
discharge of pollutants. Thus, the Hunater Plant continues
to discharge without a permit to the present day.
CWA Compliance/Enforcement 8-121 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
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B. Defendant la discharging into "waters of the
United States."
" 1« Defendant is barredfrom challenging ita 1974
NPDES permit, which includes EPA'sdetermination
that theMunstar Plantdischarges into"watersof
the United states.*
The defendant was issued an NPDES permit in 1974 *to
discharge from {the Nunster Plant] to receiving waters named 40
Arpent Canal I04H) * * *.« Bruce Affidavit, Exh. B at 1,
Defendant at that tine could have sought Judicial review of
this permit determination in the court of appeals, but did not.
This failure ia dispositive of its claim that it is not dis-
charging into 'waters of the United states." -
I
It Is axiomatic that if Congress lodges Judicial review
powers over a matter in one court, other courts are implicitly
excluded from reviewing that same matter. Fott v. INS, 375
U.S. 217 U96J)} Hhitnay national Bank v. New OrleansBank, J79
U.S. 411 1195SH This is true of N?OES permits, which are review-
able exclusively by courts of appeals under Section 509 of the
CWA. E.g., Sun Enterprises. Ltd. v. Train, 532 f.2d 280 (2d Cir,
19761, And it la especially true of review of permit issuance
actions in enforcement proceedings, which is specifically barred
by Section S09(b)(2). See, a.o^. United States v. Cutter
Laboratories, Inc., 413 F. Supp. 1295, 1258 IE.D. Tenn. 1976).
Defendant St. Bernard Parish plainly could have
raised its claim that the Forty Arpent Canal is not "waters
of the United States* on review of its 1974 NPDES permit in
the court of appeals. It is a principal function of reviewing
courts to Inquire into into the jurisdiction of an agency to
CWA Compliance/Enforcement 8-122 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
-14-
take the action under review, E.g. , Batterton v. Francis,
432 U.S. 418, 426-29 (1977), Because the Parish failed to
seek review when it was proper to do so, it nay not now
obtain it. A situation similar to this one was presented in
Onited States v. Ve 1 s icol Chemi e_al Corp . . 438 P. Supp. 945
(W.D. Tenn. 1916). There, the defendant in an action Cor
violation of its HPDES permit conditions contended that it was
discharging into a POTW, not waters of the United States. The
court rejected this argument, in part because actions in
issuing the permit were not reviewable in an enforcement pro-
ceeding. Id. at 943-49.
'* the forty Arpent Canal is •waters of the United
States.*
Federal jurisdiction under the Clean Water Act extends
to "navigable waters," Section 502(7), 33 U.S.C. 136217), which
are defined as "the waters of the United States, including the
territorial seas." Id. It was Congress' intention that this
term be given "the broadest possible constitutional interpreta-
tion • * ».« s. lept. No. 92-1236, 92 Cong., 2d Sess. at 144
(Conference Report), in 1 Legislative History at 327. See also
United States v. Lambert . 70S F.2d S3«, 537-31 Ulth Cir. 1913);
Leslie Salt Co. v. Froehlke, 578 F.2d 742 «9th Cir. 19781. The
Fifth Circuit has held that the commerce clause extends to
protecting estuarine waters and the fish and wildlife that inhabit
\
them
CWA Compliance/Enforcement 8-123 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
-IB-
destruction of fish and wildlife in our estuarine
waters does have a substantial, and in some areas
devastating affect on interstate commerce, «- « »
Zabel v. Tabb. 430 f.ld Hi, 203-04 (Sth Cir, 19701, cert.
denied, 401 U.S. 910 (19,71),
In keeping with Congress' intention, EPA has defined
the toera 'waters of the United States* to Include all waters,
including "'wetlands,1 * • * the use, degradation, or destruction
of which would affect or could affect interstate oc foreign
commerce * * •." commerce * • •." 40 C.F.R. $122.2 (definition
of "Waters of the United States,"! Uti3). 10/
!£/ The complete definition is as follows!
(a) All waters which are currently used, were
used in the past, or may be susceptible to use
in interstate or foreign commerce, including
all waters which are subject to the ebb and
flow of the tide?
tbJ All interstate waters, including interstate
"wetlands?"
(c) All other waters such as intrastate lakes,
rivers, streams (including intermittent streams),
mudflats, sandflats, "wetlands,' sloughs, prairie
potholes, wet meadows, playa lakes, or natural
ponds the use, degradation, or destruction of
which would affect or could affect Interstate oc
foreign commerce including any such waters:
(1) Which are or could be used by interstate
or foreign travelers for recreational or other
purposes!
(2) Prom which fish or shellfish are or could
be taken and sold in interstate or foreign
commarcaj or
(3) Which are used or could be used for indus-
trial purposes by industries in interstate
commerce*
(fn, continued on next page)
CWA Compliance/Enforcement 8-124 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
- 16 -
"Wstlands* ara defined in the same lection to mean:
those areas that are inundated or saturated by
surface or groundwater at • frequency and duration
sufficient to support, and that under normal
circumstances do support, a prevalence of
vegetation typically adapted for life in
saturated soil conditions. Wetlands generally
include swamps, marshes, bogs, and similar
areas,
Subsection (d) of the definition of 'waters of the United
States* also includes any "tributary" of • water otherwise
falling within the definition. The definition the Corps of
Engineers has established of 'waters of the United States**
which Is substantively identical to EPA's, has been approved
ana applied by the Fiftn Circuit in Avoyelles Sportsmen's
(d) All impoundments of waters otherwise defined
as waters of the United States under this
definition;
(•) Tributaries of waters identified in para-
graphs (a)-(d) of this definition}
(() The territorial sea; and
(g) "Wetlands" adjacent to waters (other than
waters that are*themselves wetlands) identified
in paragraphs (a)-(f) of this definition.
Haste treatment systems, including treatment
ponds or lagoons designed to meet the requirements
of CM* (other than cooling ponds as defined in 40
CFR J423.11(ni) which also neat the criteria of this
definition) are not waters of the United States.
This exclusion applies only to manmade bodies of
water which neither were originally created In waters
of the United States (such as disposal arei in wet-
lands) nor resulted from the impoundment of waters of
the United States, [J\ee Note 1 of this section.]
This definition was in effect at all relevant times.
CWA Compliance/Enforcement 8-125 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
-17-
Leaqua. Inc. w. Marah, 711 F.2d 897, 914-916 (5th Cir. 1983J,
and Buttrey », United states, 890 F.2d 1170, 11IS-8S (5th Cir.
1982), and was most recently followed by this Court in Buttrey
•• Onttad States, 173 P. Supp. 283 (I.D. La. 1983J.
The Forty Arpent Canal is 'waters of th* United States
States* because it is a tributary of wetlands that are them*
selves "waters of the United States* and because it is a
tributary, ultimately, of the 5ulf Outlet Channel of the Missis-
sippi River. St. Bernard Pariah has previously acknowledged in
its 1974 permit application that tho Forty Arpent Canal is a
tributary of the Gulf Outlet Channel. Under 'Name of receiving
water or waters,* the Parish entered, "40 Arpent Canal to Missis-
sippi River - Gulf Outlet.* Exh. A to Bruce Affidavit at 2. Thus,
the Parish plainly believed that discharges to the Canal would
ultimately find their way to the Gulf Outlet, a water that is
navigable in fact. Moreover, in a 1973 report to EPA acknowledg-
ing a bypass — that is, a discharge of raw sewage ~ the Parish
acknowledged that the bypass condition threatened *«ittensive
oyster leases in the area.* Exh. 0 to Bruce Affidavit at 1.
Evidently the Parish knew its discharges would reach waters
•from which fish or shellfish are or could be taken and sold
in interstate commerce,* Such waters are "waters of the
United States.* See pp. 21-22 infra.
Aside from the Parish's admissions, the evidance
plentifully shows that the Forty Arpent Canal is 'waters of th*
CWA Compliance/Enforcement 8-126 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
United States.* The Canal, which receives effluent from the
Hunatar. Plant, Is bordered on the northern side Dy a levee,
approximately 30 feat high. Affidavit of Ur. William Kruexynski,
Attaenoant c (hereafter 'Kruczynski Affidavit*), 18. c. U/
Two pumping stations along the levee disenaryo water
tram the Canal into a wetland area north of the levee, Idit
Th» Pariah admits that these discharges periodically occur.
See Affidavit of Michael Roy rterkl (hereafter *H«rkl Affidavit*)
attachea to defendant'* Notion for Summary Judgment, at 2i
Memorandum in Support of Defendant's Notion for Summary Judg-
ment (Uef. Mam.) at "if 4 .
•
Tne two pumping stations discharge into open water
pools in the wetland area. These pools in turn are connected
by open watar channels tnrouyh the wetland to bayou Bienvenue
and the Mississippi River Gulf Outlet. Kruczynski Affidavit,
td.e. The areas adjacent to the lovee along the entire length
of th* Forty Arpent Canal are wetlands, permanently saturated
both by some tresh water input, probdoly from the Violet Canal,
and Dy tiaai action trom tne north. Id. id.e, a.y.
These wetlands are characterized by a preaoiai nance
ot wetland vegetation, including Sgartina alternif lora,
patens, P an i e urn' ' v LT g a t urn , Scirpua americanua, and
Iva fruteseena at th* northern portions, shading to 'cypress
and other wetland trees and shrubs toward the south.' Id. , IB. a.,
\
liy It will assist this Court in understanding tnis evidence to
refer to the two maps attached to Attachment G and to the
diagram, photographs and infrared aerial pnotoyraph attached to
the KruczynsKi Mffionvit, Attacmunt C.
CWA Compliance/Enforceaent 8-12? Guidance Manual 1985
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Chapter Eight ______~ Exhibit 8-10
».f,, S.y. These plants aca adapted for lif* in saturated soil.
lo. The wetlands ace adjacent to Bayou ctienvenue and lorn a
a sinyle hydroloyic regime with th* bayou. Id., 18.i. Sea
United States v, Leo Hood Contracting, Inc., 529 P. Supp.
119, 121 (E.D. Mich, 1981) (wetland is "adjacent" to water
body if tnere is a "direct water connection* to it).
Th* evidence clearly shows that Forty Arpent Canal is a
trioutary oi the wetlands ana, ultimately, of Bayou Bienvenue and
tne Mississippi River Coif Outlet Canal. It has been clear since
United .states v. Ashland Oil and Transportation Co., 504 F.2d
1317 (6tn Cir. 1974) that the cluan Mater Act extends upstream
from waters that ar* navigable in fact to cover their non-
naviyaole trioutaries. defendants concede as mucn. Def. Men.
at 3. As this Court ooserved in Huttrey v. United States, S73
F. sivi>. ^»Jr jS»u, (E.G. La. iy»3), tne uovernment nas not defined
tnn tern, "tributary.* However, wo submit that the Forty Arpent
Canal is precisely the sort of trioutary that Congress meant to
cover as "waters of tne United states.' *.
First, the Congress has prohibited a cramped
construction of Clean Water Act jurisdiction. As the Senate
Report on the Itli Amendments,explains!
i ,
* * * tfatwr noves in hyaroloyical cycles ana
it is essential that discharge of pollutants
oe controlled at tne source. Therefore
reference to the control requirements must be •
maoa to the navigaole waters, portions the'reof,
ana their trioucarias.
2 Legislative History at 1«!*S. So* also Avgyelles !»jortaraen's
League, Inc. v. Haran, siyra, 715 F.ia at 91S (quoting and
CHA Compliance/Enforcement 8-128 Guldaoce Manual 1985
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Chapter Eight Exhibit 8-10
-20-
r«lying upon Senate Report), Courts havt carried out Congress'
intent by adopting a broad construction of the tarn "tributary*
to effectuate the goals of the Act. Thus, in Ashland Oil,
supra, th* court affirmed the conviction of • defendant that
had spilled oil into a small tributary to Little Cypress Creak,
which flowed into Cypress Croak, which flowed into Pond River,
which ultimately flowed into Green River. Only the Green River
was navigable in fact. United States v. Ashland Oil and Trans-
portation Co.. suprai 504 F.2d at 1320. The Tenth Circuit has
held that the Clean Hater Act covers a discharge into a small
tributary even though the record did not show whether discharges
would reach downstream waters absent significant rainfall, united
Suites v. Texas GasPipe tine Co., 111 f,2d 345, 348-47 {10th Cir.
1979). See also United Statea v. Phelps Dodge Corp., 331 F. Supp
1181, 1147 (D. Ariz. 1975) ('waters of the United States* Include
"normally dry arroyoe through which water nay flow, where such
water will ultimately end up in public waters such as a river or
«
stream, tributary to a river or stream, lake, reservoir, bay,
gulf, sea or ocean • * •.*>»
The Forty Arpent Canal plainly meets the requirements
laid out in these cases. Effluent discharged into the Canal
from the Nunster Plant ultimately is pumped into pools in the
adjacent wetlands, which are directly connected hydrologically
to Bayou aienvenue and through it to the Gulf Xntracoastal
\
Waterway and the Mississippi River Gulf Outlet Canal. See
Kruciynski Affidavit, 11 I.e., 8.1.
CWA Compliance/Enforcement 8-129 Guidance Manual 1985
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Chanter Eight Exhibit 8-10
-21-
• In light of these'undisputed facts, ind of the
consistent body of case law, defendant's contention that the
Forty Arpent Canal it a 'closed system,* D«f, Ken. at 4, must
ba rejected. Oofendant's reliance upon the fact that th«
Canal is pumped, rather than "freely flowing" into the vet lands,
Ut., is misplaced. For example, in United States v. Texas
Gas pipe Line Co.,, supra, and United States v.Phelps Podga
Corp., supra, there was no evidence of connection to downstream
waters except on a sporadic basis. Moreover, the Parish's
argument is an attempt to shift the responsibility for compliance
with the Clean Hater Act to the Lake Borgne Basin Levee
District, a State agency that that operates the two pumping
stations on the Forty Arpent Canal (see Affidavit of Peter
Romanowsky, Attachment G ('Romanovsky affidavit*) at 3), and
away from itself. This attempt imiet fail.
rirst, the Parish is not the only discharger into
the forty Arpent Canal. The Murphy'Oil Company is also a
source of discharge affaeting the forty Arpent Canal. See Exh.
f to Bruce Affidavit at 1. It would plainly be Inconsistent
with Congress1 directive 'that discharge of pollutants be
controlled at the source,* see p. 19, supra, to place Union's
and the Parish's NPOCS obligations on the back of the levee
district.
CWA Compliance/Enforcement 3-130 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
-22-
Mors than that, the Forty Arpent Canal is a substantial
body of water that itself merits Clean Water Ace protection. It
is six miles long and from 100 to ISO feat wide. Merkl Affidavit
at 1. At least in the past, it supported flshi one State
investigation of the Munster Plant resulted from a citizen
complaint about a fish kill in the forty Arpent Canal, a kill
that the State investigator found waa due in whole or in part to
discharges from the Munster Plant. Romanowsky Affidavit at 4.
thus, it seems likely that the Canal meets, or would meet absent
gross pollution from the Munster "Plant, an independent test in
EPA's regulations. Those regulations define 'waters of the
United States" to include waterst
t * *
(1) Which are or could be used by
interstate or foreign travelers
for recreational or other purposes
art
(2) From which fish or shellfish are
or could be taken and sold in
interstate at foreign commerce.
40 C.F.R. 5122.2 (1983) (definition of 'waters of the United
States").
CONCLUSION
Defendant's Motion for Summary Judgment should be
denied. Partial summary judgment should be entered for the
United States on the issues of liability discussed above because
the material facts about which there Is no genuine dispute
s
estaolish that the defendant St. Bernard Parish repeatedly
CWA Compliance/Enforcement 8-131 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
-23-
violatad conditions of its NPDES permit, and has discharged
and continues to discharge pollutants into 'waters of the
United States' without an NPDES permit as required by law,
A proposed order is attached.
Respectfully submitted,
JOHN VOLZ
United States Attorney
Eastern District of Louisiana
Byi
WllLXAH r. BAIT*
Assistant United states"Attorney
Hale Boggs Federal Building
New Orleans, LA 70130
(504> 539-3518
~
/
Sec
REED NEUMAN
Environmental Enforcement Section
Land and Natural Resources Division
United States Department of Justice
Washington,- D.C. 20530
(202) 633-5266
ALAN W. ECKERT
Senior Litigator
Office of General Counsel
United States Environmental Protection
Agency
Washington, B.C. 20460
(202) 382-7606
CWA Compliance/Enforcement 8-132 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
-24-
OF COUNSEL1
ELXSE DiBIAGIO-WOOD
Offiea of Enforcement and Compliance Monitoring
Unittd State* Environmental Protection Agency
Washington, B.C. 20460
(202) 475-811?
RALPH CORLEY
Offiea of Regional Counsel
U.S. Environmental Protection Agency
Region VI
1201 Elm St.
Dallas, Texas 75270
CWA Compliance/Enforcement 8-133 Guidance Manual 1985
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Chapter Eight Exhibit 8-10
LIST OF ATTACHMENTS
A. Statement of Facts As To Which Theea Is No Genuine Issue To
•a Triad
«B« Table of Monitoring' and Reporting Violations
C. Affidavit of Or. William L. Kruexynski (with attachments)
0, UnitedStates ?. Amoco Oil Co., Ho. 80-0801-CV-W-O
(W.O. Mo. Jan 3, i9B4).
E. Declaration of Robert Miller
F, Affidavit of Shirley Bruce (with exhibits)
G. Affidavit of Peter Xomanowsky
H. Proposed Order
CWA Compliance/Enforcement 8-134 Guidance Manual 1985
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Chapter Eight
Exhibit 8-11
Sample Industrial Consent Decree
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•9»m C60.183
r-a-JS 00}
GUY G. HURL8UTT
UNITED STATES ATTORNEY
DISTRICT OF IDAHO
ROOM 693 FEDERAL BUILDING
SSO WEST FORT STREET
BOISE, IDAHO 83724
Telephone: (208) 334-1211
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Plaintiff,
RAINBOW TROUT FARMS, INC. and
IDAHO TROUT PROCESSORS COMPANY,
Defendants.
Civil No. 82-1439
STIPULATION
AND
CONSENT DECREE
Plaintiff, United States of America, on behalf of the United
States Environmental Protection Agency ("EPA"), having filed a Complaint
herein on December 30, 1982 alleging that defendants have discharged
pollutants in violation of the Clean Hater Act, 33 U.S.C. Section 1251 et
sea.., and the parties by their attorneys having consented to entry of
this Decree;
NOW THEREFORE, before the taking of any testimony herein, and
without trial or adjudication of any issue of fact or law herein, and
upon consent of the parties, by their attorneys and authorized officials,
it is
HEREBY STIPULATED AS FOLLOWS:
1. This Court has jurisdiction of the subject matter of this
action pursuant to 28 U.S.C. Section 1345 and Section 309{b) of the Clean
STIPULATION AND CONSENT DECREE - PAGE ONE OF EIGHTEEN
CWA Compliance/Enforcement
8-135
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Chapter Eight
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"=0fm GB0.1SJ
2-876 003
Water Act, 33 U.S.C. Section 1319(0), and jurisdiction over the parties
hereto. The Complaint filed herein states a claim upon which relief can
be granted against defendants.
2. The provisions of this Consent Decree shall apply to and
ba binding upon the parties to this action, their officers, directors,
agents, servants, employees and successors or assigns. Defendants shall
five notice of this Consent Decree to any successors 1n Interest prior to
transfer of ownership and shall simultaneously verify to plaintiff that
defendants have given such notice.
3. Defendant Rainbow Trout Farms, Inc. is an Idaho corporation
and operates a fish culturfng facility near Filer, Idaho. Defendant
Idaho Trout Processors Company, also an Idaho corporation, operates a
fish processing plant near Filer, Idaho adjacent to the said culturing
facility operated by Rainbow Trout Farms, Inc. Effluent from the processing
plant Is joined with effluent from the culturing facility in a tall race.
The combined effluent in whole or in part discharges directly to
Cedar Draw Creek. A portion of the effluent is periodically diverted,
typically from May through September annually, to an irrigation and
drainage canal operated by the Twin Falls Canal Company. The diversion
structure that regulates the amount of water diverted to the canal Is
located on defendants' property but is operated by the Twin Falls Canal
Company, pursuant to the terns of a Judgment entered on February 14, 1957
In the District Court for the Eleventh Judicial District of the State of
Idaho. Water from the canal in turn flows to Cedar Draw Creek. Cedar
Draw Creek is a tributary to the Snake River.
STIPULATION AND CONSENT DECREE - PAGE TWO OF EIGHTEEN
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Chapter Eight
Exhibit 8-11
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farm 090-183
124-7 8 OQJ
4. On Hay 2, 197S, pursuant to Section 402 of the Clean Mater
Act. 33 U.S.C. Section 1342, EPA Issued a National Pollutant Discharge
Elimination System (°NPOES*) permit to defendants. The permit authorized
defendants to discharge certain amounts of'pollutants to Cedar Draw Creek
and required, Inter alia, monthly submission of Discharge Monitoring
Reports ("OMRs°1 to EPA stating the amounts of pollutants discharged each
month to Cedar Draw Creek frow defendants' fish cultuHng facility and
processing plant. The permit allowed defendants to submit OMRs that did
not specify the amounts of pollutants discharged, If defendants represented
on such OMRs that for a given calendar month all of the effluent was
diverted to the Irrigation and drainage canal operated by the Twin Falls
Canal Company and none was discharged directly from defendants' facilities
to Cedar Draw Creek.
S. Defendants' NPDES permit expired at midnight on December
31, 1979. Defendants have discharged pollutants after the expiration
date of that permit. There 1s a dispute between plaintiff and defendants
as to whether defendants reasonably believed that application for renewal
of that permit was necessary. Nevertheless, 1t Is agreed that discharges
occurring after the expiration date of the permit have violated Section
301 of the Clean Water Act, 33 U.S.C. Section 1311, and entitle plaintiff
to the relief set forth In this Decree.
6. Despite the expiration of defendants' NPDES permit, defendants
have continued to submit monthly OHRs to EPA. All of the Discharge
Monitoring Reports submitted by defendants for the months from January
1980 through January, 1983 have stated that there his been no discharge
of effluent from defendants' facilities directly to Cedar Draw Creek.
STIPULATION AND CONSENT DECREE - PAGE THREE OF EIGHTEEN
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8-137
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Chapter Eight
Exhibit 8-11
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•arm OBD-IB]
2-87* KM
These DMRs have been Inaccurate. There have been continuous discharges
In Intermittent quantities of pollutants from defendants' facilities
directly to Cedar Draw Creek, even though a substantial portion of the
effluent Is periodically diverted to the canal operated by the Twin
Falls Canal Company as described in Paragraph 3 above.
7. Defendants have ceased discharges of pollutants from their
facilities. On January 8, 1983, defendant Rainbow Trout Farms, Inc.
removed all of the fish from the fish rearing ponds at Its Filer, Idaho
facility and transferred them to other locations. Also on January
8, 1983, defendant Idaho Trout Processors Company suspended fish processing
at Its Filer, Idaho plant.
8. On February 16, 1983, defendants submitted to EPA an
application for a new MPOIS permit that would authorize discharges from
defendants' processing plint and fish rearing facility. EPA Is currently
evaluating that application and developing a draft NPOES permit In
accordance trith the penult-Issuance procedures set forth at 40 C.F.R.
Parts 122 and 124.
HOW, THEREFORE, based on the foregoing, It Is hereby ORDERED,
ADJUDGED, AND DECREED AS FOLLOWS:
SECTION ONE
Interim Discharge Limitations and Interim
Monitoring, Sampling and Reporting Requirements
«
I. Until the effective date of a new NPOES permit, defendant
Idaho Trout Processors Company shall record the number of pounds of fish
STIPULATION AMD CONSENT DECREE - PAGE FOUR OF EIGHTEEN
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Chapter Eight
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•5--m 080-'83
•I-S-76 DQJ
Effluent Interim Discharge Interim
Characteristic Limitations Monitoring Requirements
Parameter Monthly Dally Measurement Sample
(units) Average Maximum Frequency Type
Flow (MGO) n/a n/a I/week 24 hr. total
Biochemical Oxygen Demand (see paragraph I/Meek 8 hr.
Us/day 3.d. below! composite
Total Suspended Solids (see paragraph I/Meek 8 hr.
Lbs/day 3.e. below) composite
Settleable Solids n/a n/a I/week grab
ml /I
Oil & Grease n/a n/a I/Meek grab
Lbs/day
pH Not less than 6.0
nor greater than 9.0
standard units
(Both as a monthly
average and as a
dally maximum) I/week grab
a. The "dally maximum" Is the maximum allowable discharge in any
calendar day. The "monthly average" 1s the arithmetic mean of samples
collected during a calendar month.
b. Effluent samples of the combined processing plant and
rearing facility discharges to the Creek and/or the canal shall be taken
after any treatment and prior to nixing with the receiving Maters.
c. A composite sample shall consist of at least six samples
taken at equal time Intervals and apportioned according to the volume of
the flow at the time of the sample.
d. Defendants' discharges of Biochemical Oxygen Demand ("BOO")
shall comply with the following limitation: z ^ C(Q.Q0188Hxl] + y.
Where: x 1s the weight 1n pounds of fish processed at the processing
STIPULATION AND CONSENT DECREE - PAGE SIX OF EIGHTEEN
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Guidance Manual 1985
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Chapter Eight
Exhibit 8-11
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•arm CSO-IB3
2-8-76 OOJ
plant on the day that effluent samples are taken (as recorded pursu&it to
paragraph 1 above of this Section); y Is the amount of BOD discharged
fron the fish rearing area (as monitored pursuant to paragraph 2 ab ve);
and z Is the amount of BOD discharged after treatment to Cedar Draw Creek
and/or to the canal (as monitored pursuant to this paragraph 3).
t. Defendants' discharges of Total Suspended Solids ("TSS"!
shall be limited as follows:
1. Discharges occurring during cleaning of the fish rearing
ponds or raceways shall comply with the following limitation:
z <,C(0.001885(x)] * .IS y. Hhere: x 1s the weifht 1n pounds of fish
processed at the processing plant on the day that effluent samples are
taken (as recorded pursuant to paragraph 1 above of this Section); y Is
the amount of TSS discharged from the fish rearing area (as monitored
pursuant to paragraph"2 above); and z is the amount of TSS discharged
after treatment to Cedar Draw Creek and/or to the canal (as monitored
pursuant to this paragraph 3).
ii. Discharges not occurring during periods of cleaning of
the fish rearing ponds or raceways shall comply with the following
limitation: z £ [{0.00188)(x>] * [(§ mg/l){now y)!8.34)]. Where: x
is the weight in pounds of fish processed at the processing plant on the
day that effluent samples are taken (as recorded pursuant to paragraph 1
above of this Section); flow y 1s the amount 1n millions of gallons per
day (MSB) of water flowing from the fish rearing area Us monitored
pursuant to paragraph Z above); and z is the amount of TSS discharged
after treatment to Cedar Draw Creek and/or to the canal (as monitored
pursuant to this paragraph 3).
STIPULATION AMD COMSENT DECREE - PAGE SEVEN OF EIGHTEEN
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Guidance Manual 1985
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Chapter Eight
Exhibit 8-11
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f. Defendants may construct waste holding tonds or install any
other treatment device In order to meet the discharge limitations of this
paragraph i.
4. Defendant Rainbow Trout Farms, Inc. shall not clean Its
rearing ponds or raceways by any process that results in the discharge of
wastes to Cedar Draw Creek and/or the Irrigation and drainage canal In
mounts exceeding the discharge limitations stated 1n paragraph 3 above
of this Section.
5. There shall be no discharges of floating sol Ids or visible
foam to Cedar Draw Creek and/or the Irrigation and drainage canal 1n
other than trace amounts.
6. Within twenty (20) days of entry of this Decree, defendants
shall submit to EPA, at the address given In paragraph 10 below of this
Section, (a) a composite one-page schematic diagram that shows the relative
locations of the raceways, processing plant and the tall race that receives
the process wastes from the rearing facility and the processing plant,
and which also Indicates the flow patterns and points at which defendants
will conduct the monitoring required by this Section of this decree, and
(b) a written description of the operational procedures to be adopted by
defendants to assure that personnel from the fish rearing facility and
processing plant carry out the effluent monitoring required by this Section.
7. Defendants shall take the samples and measurements that are
required by this Decree In such a manner to assure that they are
representative of the volume and nature of the discharge. All samples
required by paragraphs 1. 2 and 3 of the Section shall be taken within
STIPULATION AND CONSENT DECREE - PAGE EIGHT OF EIGHTEEN
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the sane calendar day at the respective sampling locations shown In the
diagram submitted as required by paragraph 6 above of this Section.
8. Defendants shall conduct the polljtant analyses required by
this Decree 1n accordance with the approved test methods set forth in 40
C.F.R. Part 136.
9. For each measurement or sample required by the terms of
this Decree, defendants shall maintain a record of the following information:
a. the exact place, date, and time of sampling or
measurements;
b. for samples taken from the fish rearing facility,
a statement Indicating whether the ponds and raceways
at the facility were being cleaned at the time the samples
were taken*,
c. the person(s) who performed the sampling or measurements;
d. the date(s) the analyses were performed;
e. the person(s) who performed the analyses;
f. the analytical techniques or methods used; and
9. the results of all required analyses.
10. Until the effective date of a new NPOES permit authorizing
discharges from defendants' facilities, results of the discharge monitoring
required by this decree shall be summarized by defendants on Discharge
Monitoring Report forms {EPA No. 3320-1) and submitted on a semi-monthly
basts to EPA with the Information described 1n paragraph 9 above of this Section
attached thereto. Separate reports shall be submitted for the processing
plant and rearing facility. The reports shall be postmarked by the 15th
and 30th day of each month and submitted to the following address:
STIPULATION AND CONSENT DECREE - PAGE NINE OF EIGHTEEN
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m C8D-183
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Diana Banta, Chief
Mater Compliance Section (M/S 513)
U. S. Envlrorenenjl Protection Agency
1200 Sixth Avenu>.*
Seattle, Washinreon 98101
Such records shall be maintained for a minimum of three (3) years following
the sampling date, or for a longer period of time at the request of plaintiff,
11. Until the effective date of a new NPOES permit authorizing
discharges from defendants' facilities, defendants shall notify EPA
orally within twenty-four (24) hours of the time that either of them
become aware of any pollutant discharge that exceeds the discharge limitations
set forth in this Section of this Consent Decree. Such notice shall be
made to Diana Banta, Chief, the EPA Water Compliance Section, at (206)
442*1094. Followup written notice of violations of discharge limits
shall be postmarked within five (5) days following the tine that either
of the defendants become aware of such violations. Written notice shall
be sent to the address listed supra 1n paragraph 10 of this Section.
12. Until the effective date of a new NPOES permit authorizing
discharges from defendants' facilities, defendants shall notify EPA in writing of
any violation of the discharge monitoring requirements set forth in this
Section of this Consent Decree. This notice shall be postmarked within
five (5) days following the time that either of defendants become aware
of such violations of monitoring requirements, and shall be sent to the
address listed supra in paragraph 10 of this Section.
13. Defendants shall at all times maintain in good working order and
operate as efficiently as possible all facilities and systems (and related
appurtenances) for collection and treatment which are installed or used
by the defendants for water pollution control and abatement to achieve
compliance with the terns and conditions of this Consent Decree. Proper
STIPULATION AMD CONSENT DECREE - PAGE TEN OF EIGHTEEN
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OBD-183
6 DOJ
operation and maintenance ncludes, but 1s not limited to, effective
performance based on designed facility removals, adequate funding, effective
management, adequate opera:ar staffing training, and adequate laboratory
and process controls. Including appropriate quality assurance procedures.
14. Any authorized representative of the U. S. Environmental Protection
Agency, upon presentation of his credentials, nay at any time enter upon
the premises of defendants' facilities described herein for the purpose
of determining compliance with the discharge limitations and monitoring,
sampling, and reporting and recordkeeping provisions of this Decree.
SECTION THO
Permit Discharge Limitations and
Requirements for Monitoring,
Sampling and Reporting
1. Except as described in Section Three infra of this Consent Decree,
the Interim Requirements set forth above In Section One will be superseded
by the terms of an KPDES permit as of the effective date of that permit.
2. Defendants shall comply with the discharge limitations and the
monitoring, sampling and reporting requirements of an MPOES permit as of
the effective date of such a permit.
SECTION THBEE
Stipulated Penalties for
Violation of Consent Decree
A. Nonconipllance with Discharge Limitations
1. If the defendants fail to comply with the Interim Discharge
Limitations for daily maximum discharges as set forth 1n Section One
above, upon demand by the United States, the defendants shall Incur
and pay, within ten (10! days of the demand, to the United Stages a
stipulated penalty of $500.00 per day of violation for the first five
STIPULATION AND CONSENT DECREE - PAGE ELEVEN OF EIGHTEEN
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form CBO.ta3
12-8 IS DOJ
(5) days (not necessarily consecutive) of such violation, and $1,000.00
per day of violation for the second five (I) days (not necessarily consecutive)
of such vlolatl -n, and $10,000,00 per day for each additional day of
violation of such Interim dally maximum Units while these Interim Limitations
remain 1n effect.
2. And further, upon demand by the United States, the defendants
shall Incur and pay, within ten (10) days of the demand, to the united
States a stipulated penalty of $1,000.00 for each month during which
defendants violate any of the Interln nonthly average limitations set forth
In Section One above while these Interim Limitations remain in efftct.
B. Nonconipllance with NPOES Permit Discharge Limitations
1. If the defendants fall to comply with the dally or Instantaneous
naximua discharge limits set forth In an MPOES permit on or after the
effective date of such an NPDES permit, as referred to in Section Two
above, upon demand by the United States, the defendants shall Incur and
pay to the United States within ten (10) days of the demand, a stipulated
penalty of $250.00 per day of violation for each of the first ten (10)
days (not necessarily consecutive) of such violation, and $500.00 per day
of violation for each of the second ten (10) days (not necessarily consecutive)
of such violation, and $1,000.00 per day for each additional day of
violation of such NPOES permit daily or instantaneous maximum limits
from the twenty-ffrst (2lst) such day, until the expiration of this
Consent Decree,
2. And further, upon demand by the United States, the defendants
shall Incur and pay to the United States within ten UQ) days of the
demand, a stipulated penalty of $500,00 per month for each month during
STIPULATION AND CONSENT DECREE - PAGE TWELVE OF EIGHTEEN
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c-ni OBO-183
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which defendants violate any of the monthly average discharge limitations
set fo*th in an effective NPDES permit, for the duration of this Consent
Decree.
C. Noncqmpliance with Interim Monitoring, Sampling, andReporting
Requirements
1. If the defendants fail to comply with the Interim Monitoring,
Sampling and Reporting requirements as set forth in Section One above,
in that the defendants fail to monitor, sample and report by the date
required, upon demand by the United States, the defendants shall incur
-ttg *
and pay to the United States, within ten (10) days of the demand, a stipulated
penalty of $1,000.00 for each such failure while the Interim Monitoring,
Sampling, and Reporting requirements are in effect.
2. And further, 1f defendants submit an Inaccurate Discharge Monitoring
Report to EPA, upon demand by the United States, the defendants shall Incur
and pay to the United States, within ten (10) days of demand, a stipulated
penalty of $10,000.00 for each such Inaccurate report submitted while the
Interim Monitoring, Sampling, and Reporting requirements are in effect.
D. Noncompllance with NPPES Permit Monitoring, Sampling, and Reporting
Requirements
1. As of the effective date of a NPOES permit issued to the defendants,
the terms of that pertnlt shall set forth the applicable monitoring, sampling
and reporting requirements. However, if such requirements of the permit are
violated during the time that both the permit and this Consent Decree are 1n
force, EPA «ay, at Its discretion, and upon notice to the defendants, re-impose
the Interim Monitoring, Sampling, and Reporting requirements set forth in
Section One above for the duration of this Consent Decree.
2. If the defendants fail to comply with NPOES permit monitoring, sampling,
and reporting requirements during the period of time that both a permit and
STIPULATION AND CONSENT DECREE - PAGE THIRTEEN OF EIGHTEEN
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tim OBQ-183
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this Consent Decree are In force, In that the defendants fall to monitor,
sample or report by the date required, upon demand by the United States, the
defendants shall Incur and pay to the United States within ten (10) days of
the demand, a stipulated penalty of $500.00 for each such failure.
3. If defendants submit an Inaccurate Discharge Monitoring Report to
EPA while both an NPOES permit and this Consent Decree are in force, upon
demand of the United States, the defendants shall incur and pay to the United
States a stipulated penalty of 110,000.00 for eactr such inaccurate report
that is submitted.
I. Payment of Stipulated Penalties
1. Stipulated penalties due pursuant to this Section shall be paid by
cashier's check made payable to the "Treasurer, United States of America/
and delivered to the Office of the United States Attorney, Room 693
Federal Building, 550 H. Fort Street, ioise, Idaho 83724.
2. Defendants Rainbow Trout Farms, Inc. and Idaho Trout Processors
Company shall be Jointly and severally liable for any stipulated penalties
made payable under this Section.
3. Any dispute with respect to defendants' liability for a stipulated
penalty shall be resolved by this Court.
4. The provisions of this Section shall not be construed to Unit my
other remedies, Including but not limited to Institution of contempt proceedings
or criminal prosecution, available to plaintiff for violations of this Consent
Decree or any other provision of law.
SECTION FOUR
Penalties for Past Violations and Contingent Penalties
STIPULATION AND CONSENT DECREE - PAGE FOURTEEN OF EIGHTEEN
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-arm 080-183
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1. In full settlement of the Complaint of the United States,
defendants agree to pay a civil penalty In the total sun of SEVEN THOUSAND
DOLLARS ($7,000.00), which shall be paid within five days of the date of
entry of this Decree by a cashier's check made payable to the "Treasurer,
United States of America," and delivered to the Office of the United
States Attorney, Roon 613 Federal Building, S50 H. Fort St., Boise,
Idaho 83724.
2. In addition, defendants agree to pay EIGHT THOUSAND DOLLARS
($8,000.00} within five days of the dite of entry of this Decree by a
cashier's check made payable to the "Clerk, United States District Court
for the District of Idaho," and delivered to the Office of the Clerk of
the Court, Room 612 Federal Building, S50 West Fort St., Boise, Idaho 83724.
ly this Decree the Clerk Is hereby ordered to deposit said $8,000.00 1n
a standard Interest-bearing savings account at the Statehouse Branch of
the Idaho First National Bank in Boise, Idaho. This amount shall be
reaitted to the defendants according to the foTlowing schedule and conditions
and In the following prescribed manner.
a. Upon application by the United States and Order by the
Court, $2,000.00 shall be remitted to the defendants on or about August
i, 1983, so long as defendants achieve and maintain complete compliance
with the terras of this Consent Decree, Including any NPDES permit, from
the date of lodging of this Decree through July 31, 1983.
b. Upon application by the United States and Order of this
Court, $2,000.00 shall be remitted to the defendants on or about October 5,
1983, so long as defendants maintain complete compliance with the terms
of this Consent Decree, including any NPOES permit, from August 1, 1983,
through September 30, 1983.
STIPULATION AND CONSENT DECREE - PAGE FIFTEEN OF EIGHTEEN
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c. Upon application by the United States and Order of this
Court, S2.000.00 shall be remitted to the defendants on or about December
5, 1983, so long as defendants maintain complete compliance with the
terns of this Consent Decree, Including any MPDES permit, from October 1,
1983, through November 30, 1983.
d. Upon application by the United States and Order of thfs
Court, the remaining $2,000.00, plus any and all accrued Interest on the account,
shall be remitted to the defendants on or about February 5, 1984, so
long as defendants maintain complete compliance with the terms of this
Consent Decree, including any MPDES permit, from December 1, 1983
through January 31, 1984.
e. Any violations of the terns of this Decree, or the require-
ments of any NPOES permit, during any of the two-month periods described
In subparagraphs (a) through (d) of this paragraph shall result 1n
forfeiture of a civil penalty to the United States In the amount that
otherwise would have been returned to the defendants for that two-month
period. In the event of such violation, upon application by the United
States and Order of this Court, the Clerk's office will transmit the
appropriate amunt to the United States Attorney for the District of
Idaho 1n the form of a check made payable to the Treasurer of the United
States of America.
SECTION FIVE
General Provisions
1. All Information and comments submitted by defendants to EPA
pursuant to this Decree shall be subject to public inspection unless identified
by defendants as confidential In conformance with 40 C.F.R. Part 2. The
STIPULATION AND CONSENT DECREE - PAGE SIXTEEN OF EIGHTEEN
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Information and documents so Identified as confidential will be disclosed
only In accordance with EPA regulations at 40 C.F.R. Part 2 and C.F.R. Section
122.19.
2* This Consent Decree In no way affects or relieves defendants
of responsibility to comply with any other Federal, State or local laws or
regulations.
3. Any modification of this Consent Decree must be In writing and
approved by this Court.
s ^"4. This Court shall retain jurisdiction of this cause solely for
the purpose of enabling any party to apply to the Court at any time for such
further relief as nay be appropriate to interpret, enforce, modify or terminate
the Decree. Otherwise, this Decree shall terminate on March 31, 1985.
S. It is further ordered that each party shall bear Its own costs
in this litigation, including attorney's fees.
Entered this
day of
, 1983.
United States District Judge
STIPULATED, AfiREED and APPROVED for entry waiving notice.
RAINBOW TROUT FARMS, INC,
IDAHO TROUT PROCESSORS COMPANY
Clark, Attorney
Anderson, Kaufman, Rinfert and Clark
STIPULATION AMD CONSENT DECREE - PAGE SEVENTEEN OF EIGHTEEN
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UNITED STATES OF AMERICA
^,00*01 • C» Dlnkiifis '
yiw Assistant Attorney General
Land and Natural Resources Division
U. S. Department of Justice
Guy G. Hurl butt
United States Attorney
Courtney M. Price
Special Counsel for Enforcement
U.S. Environmental Protection Agency
ravid H. Heineck
Assistant Regional Counsel
U.S. Environmental Protection Agency
Region 10
STIPULATION AND CONSENT DECREE - PAGE EIGHTEEN OF EIGHTEEN
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Chapter Eight Exhibit 8-12
Sample Municipal Consent Decree
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 77-1163-BL
UNITED STATES 0? AMERICA, )
Plaintiff, )
v. )
) CONSENT ORDER
CITY OF WELCH, McDOWELL COUNTY, )
WEST VIRGINIA, a municipal )
corporation, WELCH SANITARY )
BOARD, and the STATE OF WEST )
VIRGINIA, )
Defendants. )
THIS MATTER having come before the Court upon the
application of the United States of America for entry of this
order; and
WHEREAS, the United States of Aaerlca, the City of Welch
(hereinafter, "Welch"), Welch Sanitary Board (hereinafter,
"Board"), and the State of West Virginia have consented to
entry of this order;
WHEREAS, this Court has Jurisdiction of this action
pursuant to 28 U.S.C. 1345 and 33 U.S.C. 1319(b);
WHEREAS, venue is proper in this Court pursuant to 28
U.S.C. 139Ifb) ar. (c); and
WHEREAS, : 3 Court finds that: Welch owns a sewage
collection s am in McDowell County, West Virginia, which
discharges Llutants into Tug Fork; Welch controls the
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/
financing and Initiation of construction of sewage treatment
works for Chat city; Welch created the Board to supervise,
control, administer, operate and maintain any and all worka for
the collection and treatment of sewaga which are owned by Welch;
Tug Fork is a navigable waterway aa defined la the Clean Water
Ace, section 502(7), 33 O.S.C. 1362(7); on August 23, 1974,
pursuant to 33 O.S.C. 1342, and based upon an application
lubaitted on behalf of the Board, the United States (through
the U.S. Environmental Protection Agency) issued a national
pollutant discharge elimination system (hereinafter, "NPDES")
permit for the discharge of pollutants froa the Board's sewage
treatnent system; the terms or conditions of the permit were
not contested by the Board, Welch, or the'State; the permit
•became-effective on September 22, 1974; the permit required
the Board to submit to the United States not later than March
22, 1972, a compliance schedule for termination of its discharge
in accordance with 33 U.S.C. 1311(b)(1)(B); the Board has
failed to submit the compliance schedule in violation of the
permit; on May 17, 1976, the United States pursuant to 33
O.S.C. 1319(a)(3) and (4) issued findings of violation and an
order for cocpliance to the Board, citing the Board for
violations of its permit conditions and directing the Board to
3ubait-to the Unitsd States not later than June 13, 1976, a
schedule"for co-_llanca; the Board has failed c6 submit the
schedule for -pliance in violation of the May 17, 1975,
order; neic- Welch nor Che Board have constructed a sewage
treatnent ,-ks capable of achieving effluent liaitations
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"based upon secondary treataent as defined by the Adoinscracor
of che Environmental Protection Agency pursuant to 33 U.S.C.
1314(d)(l); Welch and the Board have continued co discharge
pollutants within the meaning of 33 U.S.C. 1311; the discharge
of pollutants by Welch and Che Board is not: in compliance with
an NPDES permit and it in continued violation of 33 U.S.C.
1311; and
WHEREAS, che parties have agreed that this order shall be
lodged and aade available for public coament prior to entry by
the Court, pursuant to the procedures identified at 28 C.F.R.
SO.?; and
WHEREAS, entry of this order is in the public interest;
NOW THEREFORE,
Pursuant to F.R.C.P. 65, IT IS on this day of
, 1983, ORDERED that:
1. Municipal compliance plan.
Within 120 days of the entry of this order, or by November
30, 1983, whichever is earlier, the Board shall pursuant to
F.R.C.P. 5 file with the Court and serve upon an individual
designated by the United States Environmental Protection Agency
(hereinafter, "EPA designate") and serve upon an individual
designated by the Vest Virginia Departaent of Natural Resources
i^Chareinafte'r, "WVK'R designate") a plan (hereinafter,
"municipal coopl'ance plan") for achieving compliance with the
Clean Water A . The Board shall file a municipal compliance
plan which:
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(a) has been certified by * registered professional
engineer;
(b) identifies a creacmenc cechnology which the Board
proposes to use and which will achieve Che level of effluent
quality attainable through tha application of secondary •
treatment;
(c) proposes that construction of the treatment facility
which will achieve the level of effluent quality attainable
through the application of secondary treatment will be started
by no later than May 1, 1984;
i
(d) proposes thac construction of the treatment facility
will be completed no later than May 1, 1986;
(e) proposes thac the level* of effluent quality
attainable through the application of secondary treatment will
be achieved no later than August 1, 1986;
(f) estimates the capital requirements of Che treatment
technology proposed;
, Cg) estimates Che operation and maintenance costs of
the treatment technology proposed;
(h) identifies the financial mechanisms proposed to be
used by the Board for facility construction;
(i) identifies the financial mechanisms proposed to be
used—by-the Board for generating adequate revenues for operation
and maintenance
•2. Modi;.sattons to nunlcioal compliance plan. The
United Star-. a«y Inform the Board o£ any modifications which
the Cnitac :etas proposes Co the auniclpal compliance plan.
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In the event the Board agrees to modify the municipal compliance
plan as proposed fey the United States, the Board shall pursuant
to F.R.C.P. 5 file with the Court, and serve upon the EPA
designate and the WVDNR designate, the modifications to which
the Board and the United States have agreed. In che event the
Board does not agree to modify the municipal compliance plan
as proposed by the United States (or in the event the Board
fails to file with the Court modifications to which the United
States and the Board have agreed), the United States may
pursuant to F.R.C.P. 5 file with the Court and serve upon the
Board proposed modifications to the municipal compliance plan.
The municipal compliance plan shall be deemed to be modified
as proposed by the United States unless, within fourteen days
of the ftling of the proposed modification, American Cyanamid
applies to the Court pursuant to F.R.C.F. 7 for further order.
3. Implementation of municipal compliance plan. The
Board shall implement the municipal compliance plan filed by
the Board, as modified by (a) modifications filed with the
Court to which the Board and the United States have agreed,
(b) modifications filed by the United States and for which
timely motion for further order has not been made by the Board,
and (c) further order of the Court.
:A. • MiniaunL effluent limitations. After August 1, 1986,
the Board'ahd .We':h are enjoined from discharging any effluent
from the coll- .ion syscea or creatoent works chac does not
achieve che -lowing effluent limitations:
(i! ;he arithmetic mean of the values for biological
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oxygen demand for effluent samples collected In any period of
thirty consecutive days shall not exceed 30 milligrams per
liter;
(ii) the arithmetic mean of the values for biological
oxygen demand for effluent samples collected in any period of
seven consecutive days shall not exceed 45 milligrams per
liter;
(iii) the arithmetic mean of the values for biological
oxygen demand for effluent samples collected in any period of
thirty days shall not exceed 15 percent of the arithmetic(mean
of the values for influent samples collected at approximately
the same times during the same period;
(iv) the arithmetic mean of the values of suspended
solids for effluent samples collected in any period of thirty
consecutive days shall not exceed 30 milligrams per liter;
(v) che arithmetic mean of the values of suspended
•
solids for effluent samples collected in any period of seven
consecutive-days shall not exceed 45 milligrams per liter;
(vi) the arithmetic mean of the values of suspended
solids for effluent samples collected in a period of thirty
consecutive days shall not exceed 15 percent of the arithmetic
mean of the values for influent samples collected at approximately
ithe'same-tine duri-.g the same period;
* ••.- '
(vi'i) cv; effluent values for pH shall be maintained
within the.11-. ;a of 6.0 to 9.0; and
(vii che fecal coliforn concent of Che effluent shall
not exceed . -0 per 100 ailliliter as a 30-day geometric nean
CWA Compliance/Enforcement 8-158 Guidance Manual 1985
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Chapter Eight Exhibit 8-12
- 7 -
•
based on not less than five samples during any 30-day period
nor exceed 400 per 100 milliliter in more than ten percent of
•11 samples during any 30-day period.
5. Compliance with NPPES permit. After August 1, 1986,
the Board and Welch are enjoined from discharging any pollutant
from the collection system or treatment Works except in
compliance with an NPDES permit issued pursuant to the Clean
Water Act.
6. Penalty. The Board shall pay a civil penalty of
I amount], by tendering a check in that amount payable to the
•
order of the Treasurer of the United States within thirty
days of the entry of this order.
7. Stipulated penalties. If the Board violates any
provision of this order, the Board shall pay a civil penalty
of
(i) $100 per day 'for each of the first 30 days of
violation,
(ii) $200 per day for each of the next 60 days of
violation,
(iii) $500 per day for each of the next 60 days of
violation, and
(iv) $1000 per day for each of the next 60 days of
violation-,-. Thereafter, the United States oay apply to the
.Court for "appro- iate penalties. The United States may apply
• to the Court •_ any. time for other non-penalty relief in the
event of ar. iolation of the Act, o£ any permit issued
pursuant : :he Act, or of chis order.
CWA Compliance/Enforcement 8-159 Guidance Manual 1985
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Chapter Eight Exhibit 8-12
- 8 -
8. Nonwaiver provision^ This order In no way relieves
any defendant of responsibility to comply with any other State,
Federal or local law or regulation. The order dated May 17,
1976, of the United States EPA retains full force and effect.
U.S.D.J.
CWA Compliance/Enforcement 8-160 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
Sample Pretreatment Consent Decree
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No,
UNITED STATES OP AMERICA,
Plaintiff,
v.
LFE CORPORATION, INC.
Defendant. )
CONSENT DECREE
WHEREAS, plaintiff. United States of America, on behalf of
the United States Environmental Protection Agency ("SPA"), has
filed a complaint alleging'that defendant, LFE Corporation, Inc.,
has violated sections 307 and 308 of the Clean Water Act (the
"Act"), 33 U.S.C. SS1317 and 1318?
WHEREAS, defendant, LPE Corporation, Inc. ("LFE Corporation"),
a corporation organized and existing under the laws of the
State of Delaware, owns and operates a facility for the pro-
duction of printed circuit boards located at 55 Green Street,
Clinton, Massachusetts 01510 (the "facility");
WHEREAS, the facility generates wastewater which is ulti-
mately discharged to a treatment works owned by the Town of
Clinton, Massachusetts, and operated by the water Division of
the Metropolitan District Commission, an Agency of the Comraon-
of Massachusetts;
CWA Compliance/Enforcement 8-161 Guidance Manual 1985
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Chapter Eight Exhibit 8-^3
-2-
WHEREAS, LFE Corporation admits, for the purposes of these
proceedings only, that it has been and is in violation of appli-
cable federal pretreatment requirements set forth at 40 C.P.R.
Parts 403 and 413, which ware promulgated pursuant to sections
30? and 308 of the Act, 33 U.S.C. $51317 and 1318;
WHEREAS, the Court finds that this consent decree is in
the public interest} and
WHEREAS, plaintiff and defendant in this action, by their
respective attorneys and duly authorized representative, have
consented to the entry of this decree;
HOW, THEREFORE, it ia hereby ordered, adjudged, and decreed
as followss
JURISDICTION
1. The Court has jurisdiction over the subject matter of
this case and the parties consenting hereto pursuant to 28 U.S.C.
$1345 and section 309 of the Act, 33 U.S.C. S1319. The complaint
states claims upon which relief can ba granted against LFE
Corporation pursuant to sections 307, 308, and 309 of the
Act, 33 U.S.C. $$1317, 1318, and 1319.
APPLICATIOH
2. The provisions of this decree shall be binding upon
LFE Corporation and its officers, directors, agents, servants,
employees, successors, assigns and all persons, firms, and
corporations acting under, through, or on behalf of LFE Cor-
poration. LFE Corporation shall give notice of this consent
CWA Compliance/Enforcement 8-162 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
decree to all successors in interest, prior to transfer of
ownership or operation, and shall simultaneously notify the
EPA and the United States Attorney for the District of
Nassachusetta that such notice has been given.
CIVIL PENALTY
3. LFE Corporation shall pay a civil penalty to the united
States in the amount of fifty-six thousand dollars ($56,000)
within fifteen days of the date of entry of this decree. Pay-
ment shall be made by certified cheek payable to "Treasurer,
United States of America' and shall be delivered to the united
States Attorney for the District of Massachusetts.
SCHEDULE FOR COMPLIANCE
4. LFE Corporation shall construct and install pollution
control equipment necessary to comply with applicable federal
pretreatment requirements in accordance with the following
schedule:
A. By the date of entry of this decree, begin
on-site construction and installation of
equipment; and
B. By April 22, 1985, complete construction and
equipment installation.
5. By May 22, 1985, LFE Corporation shall achieve and
thereafter maintain compliance with the General Pcetreatment
Regulations set forth at 40 C.F.R. Part 403 and the applicable
categorical pretreatnent standards for the Electroplating
Point Source Category set forth at 40 C.F.R. §413.84.
CWA Compliance/Enforcement 8-163 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
-4-
INTERIM OPERATIOM
6. Beginning on the date of entry of this decree and
continuing until Nay 22, 1985, LPE Coporation shall operate
and maintain its wastewater treatment system so as to:
A. Maximize the efficiency of the system and
minimize the discharge of metals and cyanide;
and
B. Continuously aaintain the pH of the wastewater
so that it does not fall below 5.0 for a total
of ten minutes or longer during any one day.
MONITORING AND SAMPLING
7. LPE Corporation shall sample and analyze its process
wastewater, exclusive of any, sanitary waatewater, as follows:
A. Beginning on the date of entry of this decree and
continuing until the construction and-installation
of the pretreatment system is complete as set
forth in paragraph 4 of this decree, samples shall
be collected from the pH neutralization tank and
shall be representative of all process wastewater;
B. Upon completion oC construction and installation
of the pretreatment system, samples shall be
collected at a point subsequent to all pretreat-
ment processes and shall be representative of
all process wastewater;
C. Samples shall be obtained through composite
sampling techniques and analyzed for concentra-
tions of total cyanide, total copper, total
nickel, total chromium, total zinc, total lead,
total cadmium, and total mecals as sec forth at
40 C.F.R. Part 136. Samples shall be collected
during all hours of plant operation and in
accordance with the schedule set forth in
paragraphs 3, 9, and 10 of this decree;
CWA Compliance/Enforcement 8-164 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
-5-
0. If LFE Corporation submits the results oi six
consecutive samples which demonstrate to the
satisfaction of the plaintiff that:
i. Total cyanide or total cadmium is present
in its process wastewater at concentrations
less than or equal to five percent of the
applicable daily maximum categorical standard,
measurement of such parameter or parameters
will cease to be required under this paragraph;
and
ii. Total nickel, total chromium, and total zinc
are all present in its process wastewater at
concentrations less than or equal to five
percent of the applicable daily maximum
categorical standards, measurement of these
parameters and of total metals will cease
to be required under this paragraph.
The period during which the samples are collected
may precede the date of entry oC this decree, but
no more than three samples may be collected during
one week. LFE Corporation shall notify the EPA in
writing prior to any change in its operations or
manufacturing processes. Upon changing its operations
or manufacturing processes, LFE Corporation shall
repeat the sampling and analysis set forth in this
aubparagraph;
£. Plow shall be measured as set forth at 40 C.F.R.
S403.12(b)(4), and shall be reported for each day
during which samples are collected in accordance
with the schedule set forth in paragraphs 8, 9,
and 10 of this decree; and
P. continuous monitoring shall be done tor pH.
Daily maximum and minimum pH levels shall be
reported for each day during which samples are
collected in accordance with the schedule set
forth in paragraphs 3, 9, and 10 of this decree.
8. Beginning on the date of entry of this decree and
continuing until Kay 22. 1935, the sampling, analysis, and
monitoring required by paragraph 7 shail oe done one day
each week.
CWA Compliance/Enforcement 8-165 Guidance Manual 1985
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Chapter Eight , Exhibit 8-13
-6-
9. Beginning on Nay 22, 1985, and continuing until LFE
Corporation has demonstrated continuous compliance with the
requirements specified in paragraph 5 to the satisfaction of
the plaintiff for four consecutive months, the sampling,
analysis, and monitoring required by paragraph 7 shall be
done three days each weer.
10. Beginning after L J Corporation has demonstrated continuous
compliance with the reqi cements specified in paragraph 5 to
Che satisfaction of the laintiff for four consecutive months
as set forth in paragrap 9 and continuing until this decree
is terminated, the sampling, analysis, and monitoring required
by paragraph 7 shall be done one day each week.
REPORTING
11. Not later than seven days following the deadline
contained in paragraph 4(8), LFE Corporation shall mail to
EPA a notice of compliance or noncompliance with the deadline
Signed by its authorized representative as defined in 40 C.F.R.
S403.12OO. if noncoraplianee is reported, LFE Corporation
shall state the reason Cor noncompliance, the date on which it
expects to comply with the requirement, and an assessment of
the probability that it will comply with subsequent requirements.
When LFS Corporation has completed the requirement that was the
subject of a notification of nonccmpliance, it shall mail notice
to EPA within seven days of completion of the requirement.
CWA Compliance/Enforcement 8-166 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
12. Reports on Che sampling results required by paragraphs
7, 8, 9, and 10 shall be mailed to EPA on or before the end of
the second week following the week in which samples are taken.
The reports shall be signed by an authorized representative of
LFB Corporation as defined in 40 C.F.R. S403.12(k) and shall
include the sampling results, the date and time of each sample,
an explanation for the cause of any violation of any applicable
pretreatment standard or failure to sample, the duration of
any violation, and the remedial steps taken to prevent or
minimize any violation.
13. The aforementioned reporting requirements do not relieve
LFE Corporation of its obligation to submit any other reports or
information required by the Act, by the regulations promulgated
thereunder, or by any state or local requirements.
14. Any information provided under the reporting requirements
of this decree may be used by the plaintiff as an admission of
the defendant in any proceeding to enforce the provisions of this
decree or the Act.
STIPULATED PENALTIES
15. LFE Corporation shall pay stipulated penalties to the United
States for violations of this decree, as set forth below, unless
excused by the provisions of paragraph 18:
A. Five hundred dollars (S500) per day for each day
CWA Compliance/Enforcement 8-167 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
-8-
of operation by which LFE Corporation is late in
nesting any of the requirements of the construction
and installation schedule set forth in paragraph 4.
B. Five hundred dollars
-------
Chapter Eight Exhibit 8-13
payable to "Treasurer, United States of America" and shall be
delivered to the United States Attorney Cor the District of
Massachusetts. Payments shall be made by the fifteenth day of
the month following the calendar month in which any violations
occur.
17. The United States reserves all legal and equitable
remedies available to enforce the provisions of this decree.
FORCE MAJEURE
18. (aj In the event that LPS Corporation fails to comply with
any action required to be taken by it under this decree, LFE
Corporation shall not be relieved of its obligation to pay
stipulated penalties under paragraph 15 of this decree except for
those days of noncompliance resulting solely from circumstances
beyond the control of LPE Corporation. Actions of any contractors
hired by LFE Corporation to accomplish any of the actions
required by this decree are presumed to be within the control
of LPE Corporation. Neither increased costs associated with
compliance with the requirements of this decree nor changed
economic or business conditions shall be considered circumstances
beyond the control of LFE Corporation.
(b) In the event that there is any dispute as to whether
all or a portion of LFE Corporation's failure to comply with any of
the actions required to be taken by it under this decree was
caused by circumstances beyond its control, LFE Corporation shall
CWA Compliance/Enforcement 8-169 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
-10-
have the burden of proof to show (i) that the noncompliance
was caused solely by circumstances beyond its control; (ii)
the number of days of noncompliance that resulted from circum-
stances beyond its control; and (iii) that the defendant took
all mitigating measures feasible to minimize the number of
days of any noncoapliance.
(c) The granting of relief from any obligations by the
operation of this paragraph shall have no effect on any other
obligations. LPE Corporation must make an individual showing of
proof regarding each obligation from which relief is sought.
(d> The provisions in this paragraph shall be inoperative
unless LFS Corporation notifies the person listed in paragraph
20 In writing, within fourteen days from the start of any noncom-
pliance, of its belief that all or any portion of the noncom-
pliance is solely the result of circumstances beyond its control.
GENERAL PROVISIONS
19. Until termination of the provisions of this consent decree,
the EPA, its contractors, consultants, and attorneys shall have
authority to enter the facility, at all times, upon proper
identification, for the purposes of monitoring the progress of
activity required by this decree, verifying any data or information
submitted to EPA under this decree, and taking samples. This
requirement does not relieve LFE Corporation of its obligation to
allow entry pursuant to the Act.
CWA Compliance/Enforcement 8-170 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
-11-
20. Submissions required by thin decree Co be made to EPA
shall be made In writing to the fol.owing address, unless EPA
gives written notice that another individual has been designated
to receive the submissions:
John E. Cianciarulo, Environmental Engineer
Formit Compliance Section
Hater Management Division
U.S. Environmental Protection Agency, Region I
J.F.K. Federal Building
Boston, Massachusetts 02203
21. This decree is neither a permit nor a modification of
existing permits under any federal, state, or local law and in no
way relieves LFE Corporation of its responsibility to comply with
all applicable federal, state, and local laws and regulations,
22. By this decree, plaintiff does not waive any rights or
remedies available to it for any violation by LFE Corporation
of federal or state laws, regulations, or permit conditions
other than those violations specifically covered by this decree.
23. Nothing herein shall be construed to limit the authority of
the United States to undertake any action against any person,
including LFE Corporation, in response to conditions which may
present an imminent and substantial endangerment to the public
health, welfare, or the environment.
24. LFE Corporation shall be responsible for any and all
expenses of any nature whatsoever incurred by the United States
in collecting any outstanding penalties due under paragraphs 3
CWA Compliance/Enforcement 8-171 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
-12-
and IS and in enforcing the requirements of this decree including,
but not limited to, counse' fees.
25. The Coyrt shall rettin jurisdiction to modify and enforce
the terms and conditions o: this decree and to resolve disputes
arising hereunder as may be necessary or appropriate for the
construction or execution of this decree.
26. Any modification of this decree shall be in writing and
shall not take effect unless approved by the Court.
27. This decree shall terminate, and plaintiff will move the
Court to dismiss the action, at such tine as all penalties
that LFE Corporation is obligated to pay under paragraphs 3 and
15 of this decree have been paid in full, all construction and
installation of pollution control equipment has been completed,
and LFE Corporation has maintained continuous compliance with
federal pretreatnent standards to the satisfaction of the
plaintiff for twelve consecutive months".
28. LPE Corporation consents to the entry of this consent
decree without further notice. The United States consents to
the entry of this consent decree subject to publication of
notice of the decree In the Federal Register, pursuant to 28
C.F.R. S50.7, and an opportunity to consider comments, said
publication date to be communicated to the Clerk of the Court
and the parties by attorneys for the United States.
CWA Compliance/Enforcement 8-172 Guidance Manual 1985
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Chapter Eight Exhibit 8-13
-13-
Consented toi
For Plaintiff, United States of America:
P. HENRX HABICHT I" Dated
Assistant Attorney General
Land and Natural Resources
Division
United States Department
of Justice
WILLIAM P. WELD
United States Attorney
District of Massachusetts
1107 John H. McCormack Post
Office and Courthouse Building
Boston, Massachusetts 02109
Byi PATTI B. SARZS Dated
Assistant United States Attorney
Chief, Civil Division
District of Massachusetts
COURTHBf«r PRICE /"fff Da/ted/
Assistant Administrator I *
for Enforcement and
Compliance Monitoring
United States Environmental
Protection Agency
COLENE M. CASTOR Dated
Assistant Regional Counsel
Office of Regional Counsel
United States Environmental
Protection Agency, Region I
J.F. Kennedy Building
Boston, Massachusetts 02203
CWA Compliance/Enforcement 8-173 Guidance Manual 1985
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Chapter Nine
Criminal Enforcement
Chapter Contents Page
1 Criminal Enforcement . 9-1
Statutory Authority 9-1
Basic Enforcement Policy 9-2
Criteria for Identification of a Potential
Criminal Action 9-2
Criminal Enforcement Priorities 9-5
Procedures for the Investigation and Referral
of a Criminal Case 9-9
2 Exhibits 9-15
9-1: Criminal Enforcement Provisions of the
Clean Water Act 9-17
9-2: Sample Criminal Information 9-19
9-3: Sample Criminal Information 9-25
9-4: Functions and General Operating Procedures
for the Criminal Enforcement Program 9-31
9-5: Office of Criminal Investigations:
Management and Field Offices 9-47
9-6: Format for Criminal Case Referrals 9-51
CWA Compliance/Enforcement9^1Guidance Manual 1985
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Chapter Nine Contents
CWA Compliance/Enforcement 9-ii Guidance Manual 1985
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Chapter Nine
1 Criminal Enforcement
Statutory Authority
Section 309(c) of the CWA provides criminal penalties for "willfully or
negligently" discharging pollutants into the waters of the United States
without an HPDES or Section 404 permit and for willfully or negligently
violating pretreatment and toxic pollutant standards. The section also
provides criminal penalties for the following actions;
* Willfully or negligently violating NPDES or state Section 404
permit effluent limitations or conditions [Section 404(s) provides
criminal penalties for such violations of Corps of Engineers'
dredged and fill permits];
* Knowingly making false statements in any document required by the
CWA to be filed or maintained;
* Tampering with monitoring equipment required under the CWA; and
* Failing to give immediate notice to the appropriate federal agency
of the discharge of oil or a hazardous substance into the waters of
the United States (Section 311).
Exhibit 9-1 contains the CWA criminal enforcement provisions.
In addition to violation of specific federal environmental statutes,
defendants in EPA criminal cases are often charged with other crimes under
general federal criminal enforcement provisions found in Title 18 of the
United States Code. These charges, which may arise out of the activities
that ultimately result in environmental criminal charges, include: false
statements (18 U.S.C. §1001), for the making of a false statement or con-
cealing of a material fact in a matter within the jurisdiction of a depart-
ment or agency of the federal government; conspiracy (18 U.S.C §371), for
activities by two or more persons to commit an offense against or to
defraud the United States; mail fraud (18 U.S.C. §1341), for the use of the
mail to further a fraudulent scheme or artifice; and wire fraud (18 U.S.C.
§1343), for the use of the telephone, radio, or television to further such
schemes or artifices.
CWA Compliance/Enforcement 9-1 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
Basic Enforcement Policy
The CWA enforcement program promotes compliance with the terms and provi-
sions of the CWA and provides the Agency with a variety of administrative,
civil, and criminal enforcement options to accomplish this goal. Potential
overlap often exists, however, among these various options. Theoretically,
the Agency may pursue criminal sanctions in every situation that presents
evidence supporting the requisite elements of proof. In conducting crimi-
nal investigations and preparing criminal referrals, it is important for
the key offices involved (OECM-Criminal Enforcement, NEIC criminal investi-
gators, Regional Counsel's Office, and program managers) to work closely
together.
As a matter of enforcement policy and resource allocation, an unrestrained
use of criminal sanctions is neither warranted nor practical. The commit-
ment of investigative and technical resources necessary for the successful
prosecution of a criminal case is great. More Importantly, a criminal
referral for investigation or prosecution can entail profound consequences
for the defendant and, therefore, should reflect a considered, institu-
tional judgment that the fundamental interests of society require the
application of federal criminal sanctions. Accordingly, EPA generally
confines criminal referrals to situations that—when measured by the nature
of the conduct, the compliance history of the subject(s), and the gravity
of the environmental consequences—reflect the most serious cases of envi-
ronmental misconduct. Criminal enforcement may also be appropriate to
establish a deterrant effect when a pervasive pattern of violations exists.
Criteria for Identification of a Potential Criminal Action
EPA's choice among its varying enforcement options—civil, administrative,
and criminal—is, and must remain, a discretionary judgment that balances
essentially subjective considerations. This section discusses the factors
that EPA should address in reaching a decision to take criminal, as opposed
to civil, action for serious misconduct.
Criminal Intent
An individual who engages in conduct prohibited by statute or regulation
can be prosecuted civilly or administratively, without regard to the mental
state that accompanied the conduct. Criminal sanctions, on the other hand,
are ordinarily limited to cases in which the prohibited conduct is accom-
panied by evidence of "guilty knowledge" or intent on the part of the pros-
pective defendant(s). Referred to as the scienter requirement, this ele-
ment of proof exists under virtually every environmental statute enforced
by the Agency. This requirement to prove a culpable mental state, as well
as a prohibited act, is the clearest distinction between criminal and civil
enforcement actions.
CWA Compliance/Enforcement 9-2 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
However, a prosecution for illegal discharges under the Clean Water Act can
be based on either willful or_ negligent conduct [33 U.S.C. §1319(c)(l)].
[Note that the Refuse Act of 1899 (33 U.S.C. §§407, 411) has generally been
interpreted as a "strict liability" statute. See, e.g., United States
v. White Fuel Corporation, 498 F. 2d 619 (1st Cir. 1974).]
The CWA provides two different standards:
• Violations of the CWA, including the discharge of pollutants into
the waters of the United States without a permit, and permit and
pretreatment violations are subject to criminal penalties only if
done "negligently or willfully." [Section 309(c)(l)]. This
standard is unique because it is not used in any other environ-
mental statute. It allows for criminal prosecution in those
instances where the conduct is found to be only negligent. [See
United States v. Frezzo Brothers, Inc., 461 F. Supp. 266 (E.D. Pa.
1978), affd. 602 F. 2d 1123 (3d Cir. 1979), cert, denied, 444
U.S. 1074 (1980).]
• Falsification of documents required to be filed or maintained is
subject to criminal penalties if the act was done "knowingly"
[Section 309(c)(2)].
Several courts have interpreted the meaning of these phrases as they are
used in the CWA. In both standards, courts have found that the government
has met its burden of proof if it can demonstrate that the violative acts
were done intentionally and not as a result of accident or mistake. How-
ever, the government is not required to demonstrate that the defendant
intended by these acts to violate the law. [See United States v. Ouelette,
11 ERG 1350, 1352 (E.D. Ark. 1977). (Proof of specific criminal intent in
falsifying discharge monitoring reports is unnecessary to sustain convic-
tion; proof of knowingly making false statements is sufficient.)]
The Nature and Seriousness of the Offense
EPA has limited resources for criminal case development. In addition, EPA
is only one of many agencies that make demands on the services of the
limited prosecutorial staffs of the Department of Justice. As a matter of
resource allocation, therefore, as well as enforcement policy, EPA investi-
gates and refers for criminal prosecution only the most serious forms of
environmental misconduct.
Of primary importance to the referral decision is the extent of environ-
mental contamination or hazard to human health that has resulted from, or
was threatened by, the prohibited conduct. In general, this determination
depends upon considerations such as the following:
• The duration of the conduct;
• The toxicity of the pollutants involved;
CWA Compliance/Enforcement 9-3 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
• The proximity of population centers;
• The quality of the receiving land, air, or water; and
• The amount of federal, state, or local clean-up expenditures.
EPA should also assess the illegal conduct's impact—real or potential—on
EPA1s regulatory functions. This factor is particularly important in cases
of falsification or concealment of required records and reports or other
information. For example, even if a technical falsification case can be
made, criminal sanctions may not be appropriate if the falsified informa-
tion could not reasonably have been expected to have a significant impact
on EPA's regulatory process or decisionmaking. Where the falsification
materially affects EPA decisionmaking, however, EPA should consider crimi-
nal sanctions. These cases could include falsification of a discharge
monitoring report, omissions in a permit application, or alteration of a
treatment process during testing periods.
The Need for Deterrence
Deterring criminal conduct by a specific individual (individual deterrence)
or by the community at large (general deterrence) has always been one of
the primary goals of criminal law. Where the offense is deliberate and
results in serious environmental contamination or human health hazard, EPA
can achieve deterrence through the use of strong punitive sanctions.
The goal of deterrence may, on occasion, justify a criminal referral for an
offense that appears to be relatively minor. This would be true for
offenses that—while of limited importance by themselves—would have a
substantial cumulative impact if frequently committed. For example, dis-
charging a small quantity of a toxic pollutant in violation of a permit may
not seem significant as an isolated act, but if widespread, it would be
extremely dangerous. EPA may also use criminal enforcement to deter an
individual with an extended history of recalcitrance and noncorapliance.
Compliance History of the Subject
The compliance history of the potential defendent is relevant in determin-
ing the appropriateness of criminal sanctions. In federal criminal
enforcement, first offenders are generally treated less severely than reci-
divists (i.e., criminal sanctions become more appropriate as the incidents
of noncompliance increase). Further, instituting a civil suit is never a
prerequisite to filing a criminal prosecution (United States v. Frezzo
Brothers, Inc., cited previously, 461 F. Supp. at 268). However, a history
of environmental noncompliance often indicates the need for criminal
sanctions to achieve effective individual deterrence.
CUA Compliance/Enforcement
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Chapter Nine Criminal Enforcement
The Heed for Simultaneous Civil or Administrative Enforcement Action
Simultaneous civil and criminal enforcement proceedings are legally permis-
sible [United States v. Kordel, 397 U.S. 1, 11 (1970)] and on occasion are
clearly warranted. For example, where remedial or injunctive relief is
necessary at the same time that criminal sanctions are appropriate, paral-
lel civil and criminal actions may be brought.
Separate enforcement staffs must be appointed when the government initiates
a grand Jury investigation, if not before. The use of simultaneous pro-
ceedings provides grounds for legal challenges to one or both proceedings
that, even if unsuccessful, will consume additional time and resources.
Typical objections Include the allegation that the government violated the
criminal defendant's Fifth Amendment right against self-incrimination by
using an administrative or civil enforcement proceeding to obtain from that
defendant information for use in the criminal enforcement action. Thus,
parallel proceedings should be avoided except where clearly justified.
(See_ Policy and Procedures on Parallel Proceedings at the Environmental
Protection Agency, January 23, 1984.)
EPA can achieve some of the goals of a criminal prosecution, including a
degree of deterrence and punishment, through a civil action that secures
substantial civil penalties in addition to injunctive relief. Moreover,
recent experience indicates that, while many convictions may result in a
period of incarceration, criminal sentences are often limited to monetary
fines and a probationary period. Thus, the use of the additional time and
resources necessary to pursue a criminal investigation simultaneously with
a civil enforcement action is often not justified. Nonetheless, criminal
enforcement has certain advantages. Criminal actions may proceed to
quicker resolution; they can reach individuals; and even where only fines
and probation result, they may have a substantial deterrent effect.
Criminal Enforcement Priorities
The Office of Criminal Enforcement of the Office of Enforcement and Compli-
ance Monitoring (OECM), in conjunction with the Agency program offices, has
developed investigative priorities in each of the Agency's program areas.
Through this effort, EPA focuses the investigative resources on the most
serious cases of environmental misconduct. These priorities are fluid and
are modified to reflect changing programmatic circumstances. In addition,
the creation of these priorities does not preclude the possibility of a
criminal referral for conduct not falling within these investigative
priorities. (See Criminal Enforcement Priorities for the Environmental
Protection Agency, October 12, 1982.)
The priorities under Che CWA are listed below and can be found in the
above policy. The list is random and is not intended to create a ranking
within the priorities for a statute; nor is any statute given higher
priority than another.
CWA Compliance/Enforcement 9-5 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
Violations of the NPDSS Permit Program
Section 309(c)(l) of the CWA [33 U.S.C. §1319(c)(l)] provides misdemeanor
penalties of one year of imprisonment and up to a $25,000 fine for the
willful or negligent violation of conditions or limitations in NPDES
permits issued by the Administrator or a state. The NPDSS permit program
is the primary mechanism for monitoring and controlling water pollution
under the CWA.
The Agency places a. high investigative priority on willful NPDES permit
violations that result in, or threaten, significant environmental contami-
nation or that pose a hazard to human health.
The elements of proof necessary for a conviction under this section are as
follows;
• The defendant was operating under an effective NPDES permit;
• The defendant's act violated a condition or limitation contained in
the permit; and
* The defendant acted willfully or negligently.
Exhibit 9-2 (Counts 1 through 9) contains an example of a criminal informa-
tion charging violations of an NPDES permit under Section 309(c)(l).
Falsifying GWA Records and Tampering
Section 309(c)(2) of the CWA (33 U.S.C. §1319(c)(2)] provides misdemeanor
penalties of six months of imprisonment and a $10,000 fine for knowing
falsification of records and for tampering with required monitoring
devices. EPA places a high investigative priority on cases in which the
falsification or tampering has, or could reasonably be expected to have, a
significant impact on EPA's regulatory process or decisionmaking.
The following elements are necessary to sustain a conviction for falsifying
records:
• The defendant made a statement, representation, or certification;
• The defendant made the statement, representation, or certification
in a document required to be filed or maintained under the CWA;
* The statement, representation, or certification was false; and
* The defendant knowingly made the false statement, representation,
or certification.
CWA Compliance/Enforcement9-6Guidance Manual 1985
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Chapter Nine Criminal Enforcement
The following elements are necessary to sustain a conviction for tampering
with records:
• The defendant was required to maintain a monitoring device or
method under the Act;
• The defendant falsified or tampered with the device or method or
rendered the device or method inaccurate; and
* The defendant acted knowingly.
Exhibits 9-2 (Counts 10 through 12) and 9-3 (Counts 7 through 8) contain
sample criminal informations charging falsification under Section
309(c)(2).
Unpennitted Discharges
Section 309(c)(l) of the CWA [33 U.S.C. §1319(c)(l)] provide misdemeanor
penalties of one year of imprisonment and a $25,000 fine for willful or
negligent discharges into navigable waters without an NPDES or "dredged and
fill" permit.* EPA places a high Investigative priority on willful,
unpermltted discharges that cause, or threaten, significant environmental
contamination or that pose a hazard to human health.
In order to sustain a conviction for discharging without a permit, the
government must demonstrate the following elements:
* The defendant discharged a pollutant;
* From a point source (as defined In the CWA);
• Into navigable waters (as defined in the CWA);
* Without an NPDES or Section 404 permit; and
• The defendant acted willfully or negligently.
Exhibit 9-3 (Counts 1 through 6) contains a sample criminal information
charging discharges without such permits in violation of Section 309(c)(l).
Violations of Toxic or Pretreatment Standards
Section 309(c)(l) of the CWA [33 U.S.C. §1319(c)(l)] provides misdemeanor
penalties of one year of imprisonment and a $25,000 fine for willful or
* The Refuse Act also contains misdemeanor penalties of one year of
imprisonment (Including a 30-day minimum sentence) and a $2,500 fine
for each violation of that Act (33 U.S.C. §411].
CWA Compliance/Enforcement9-7Guidance Manual 1985
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Chapter _Ni_ne Criminal Enforcement
negligent violations of Section 307 of the CWA. Section 307 requires EPA
to establish toxic and pretreatment categorical standards• Subsection (d)
provides that:
[a]fter 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
pretreatment standard.
The elements necessary to prove a violation of the toxic or pretreatment
standards are as follows:
* Pretreatment or toxic standards were In effect;
• The defendant operated the source;
» The source was operated in violation of a pretreatment or toxic
pollutant standard; and
* The defendant acted willfully or negligently.
Violations of Section 404 Permits
Section 404 regulates the discharge of dredged and fill materials and is
particularly important in protecting wetland areas. Section 404(s)(4)(A)
of the CWA [33 U.S.C. §1344(s)(4)(A)] provides misdemeanor penalties of one
year of imprisonment and a $25,000 fine for willfully or negligently
violating conditions or limitations of a permit issued by the Corps of
Engineers under Section 404 of the CWA. [Section 309(c)(l) provides
identical penalties for violations of Section 404 permits Issued by a state
that has assumed responsibility for administering the program.]
The following elements of proof are necessary for a conviction under this
section:
• The defendant was operating under an effective Section 404 permit;
» The defendant's act violated a condition or limitation contained in
the permit; and
» The defendant acted willfully or negligently.
Failure To Report Spill of Oil or Hazardous Substance
Section 311(b)(5) of the CWA [33 U.S.C. §1321(b)(5)] provides misdemeanor
penalties of one year of imprisonment and a $10,000 fine for failure to
notify the National Response Center of a spill of oil or hazardous
substance. [This provision is similar to that contained in Section 103(b)
of the Comprehensive Environmental Response, Compensation and Liability
CWACompliance/Enforcement9^8 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
Act, 42 U.S.C. §9603(b).] EPA Regional Offices may also receive spill
calls that satisfy the notification requirements. Thus, regional records
should also be checked whenever a spill case is considered.
The following are elements of this violation:
• The defendant was in charge of a vessel or onshore or offshore
facility;
* Oil or a hazardous substance In a reportable quantity was dis-
charged from the vessel or facility;*
* The defendant had knowledge of the discharge; and
* The defendant failed to notify the National Response Center or
other appropriate government Agency immediately upon receiving
knowledge of the spill.
Procedures for the Investigation and Referral of a Criminal Case
On January 7, 1985, EPA issued "Functions and General Operating Procedures
for the Criminal Enforcement Program" (Exhibit 9-4). These procedures
establish the process by which suspected criminal activity Is investigated,
referred, and prosecuted by EPA offices and the Department of Justice
(DOJ). The following discussion of investigation and referral procedures
is based upon that document.
Investigation
The Office of Criminal Investigations (OCI) of the National Enforcement
Investigations Center (NSIC) performs the primary role in investigating and
referring to the DOJ allegations of criminal misconduct. This office is
staffed by experienced criminal investigators located in each of five area
field offices and five area sub-offices, covering all ten EPA Regions, and
at EPA Headquarters. Exhibit 9-5 contains a list of the managing head of
the OCI and of its offices.
Discharge under this section Is defined to include spilling, leaking,
pumping, pouring, emitting, emptying, or dumping. It excludes dis-
charges in compliance with NPDES permits [Section 311(a)(2)(A)]. A
reportable quantity of oil is an amount sufficient to violate applicable
water quality standards; to cause a film or sheen upon, or discoloration
of the surface of water or adjoining shorelines; or to cause a sludge or
emulsion to be deposited beneath the surface of water or upon adjoining
shorelines (40 C.F.R. §110.3).
CWA Compliance/Enforcement 9-9 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
EPA may receive an initial allegation of potential criminal activity from
any of several sources, including state agencies, routine compliance
inspections, public-spirited or disgruntled plant employees, and citizen
groups. The Agency employee who receives the allegation should discuss the
Information with a supervisor and then send it immediately to the Special-
Agent-In-Charge or Resident-Agent-In-Charge of the responsible field
office. The Special-Agent-In-Charge opens a case file* and assigns a
criminal investigator (known as a Special Agent) for follow-up.
If the reliability of the allegation is unclear, the Special Agent conducts
a preliminary inquiry solely to determine the credibility of the allegation
and to make an initial assessment of the need for more thorough investi-
gation. This initial inquiry is brief and does not involve an extensive
commitment of resources or time. The sole purpose is to reach an initial
determination on the need for a complete investigation.
Once a determination has been made by the OCI that a thorough investigation
is warranted, the Special Agent immediately contacts the Regional Counsel
in the Region where the investigation will be conducted. The Regional
Counsel determines whether a civil enforcement action is pending or contem-
plated against the investigative target and assigns an attorney to work
with the investigator during the case development process.
The regional attorney and Special Agent also contact the appropriate
regional program office to ensure that no administrative enforcement action
is pending or contemplated. While simultaneous administrative/civil and
criminal enforcement actions are legally permissible, they will be the
exception, rather than the rule. Generally, EPA holds an administrative or
civil proceeding in abeyance pending the resolution of the criminal inves-
tigation. One exception is a situation in which emergency remedial
response is mandated.
Where parallel administrative/civil and criminal enforcement proceedings
are appropriate, the Office of Regional Counsel will prepare a recommenda-
tion and request for such a course of action (in consultation with the
Special-Agent-in-Charge) and forward it to the Associate Counsel for
Criminal Enforcement for submission to the Assistant Administrator for
Enforcement and Compliance Monitoring for approval. Upon approval, such
parallel proceedings will thereafter be conducted in accordance with the
Agency guidance, "Policy and Procedures on Parallel Proceedings at the
Environmental Protection Agency," January 23, 1984. Agency supervisors
will be guided in managing the respective arms of those proceedings by the
further guidance of "The Role of EPA Supervisors During Parallel
Proceedings" March 12, 1985.
The opening of a case file does not commit the Agency to proceed with a
criminal referral at the culmination of the investigation; nor does it
reflect an Agency decision that criminal conduct has occurred. All
enforcement options remain open and should be considered until referral
to DOJ.
CWA Compliance/Enforcement9-10Guidance Manual 1985
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Chapter Nine Criminal Enforcement
The Special Agent, acting under the supervision of the area office
Special-Agent-In-Charge or Resident-Agent-In-Charge, has primary responsi-
bility for managing the investigation. The Special Agent is responsible
for determining the basic investigative approach and takes the lead in
conducting Interviews; assembling and reviewing records; planning and
executing surveillances; coordinating with state, federal, and local law
enforcement agencies; planning and executing searches; developing infor-
mants; and performing other investigative tasks. A technical person from
the Regional Office and a regional attorney work with the Special Agent
during those portions of an Investigation requiring technical and legal
expertise.
Referral
A referral recommendation is prepared based on the results of the independ-
ent field Investigation, or when the case cannot or should not proceed any
further without the initiation of a grand jury investigation by DOJ. The
Special Agent is responsible for preparing the referral package in
consultation with other members of the investigative team (headquarters and
regional legal and technical staff and DOJ). The regional attorney
prepares a separate legal analysis of the case to be Included in that
package.
The Speclal-Agent-In-Charge and the Regional Counsel review the referral
package and act as Joint signatories. The regional or headquarters program
office or the NEIC reviews technical portions of the package—depending on
which office was the source of technical support. During this technical
review, one of these technical offices should confirm that it has suffici-
ent resources to support litigation.
Following completion of the referral package and concurrence in the refer-
ral recommendation by the Speclal-Agent-In-Charge and the Regional Counsel,
the Region sends five copies of the referral package and all exhibits to
the Director, Office of Criminal Enforcement (LS-134C), U.S. Environmental
Protection Agency, 401 M Street S.W., Washington, B.C. 20460. Headquarters
sends copies of the referral package to the local United States Attorney
and DOJ after the Assistant Administrator for Enforcement and Compliance
Monitoring approves the referral.
If either the Special-Agent-In-Charge or the Regional Counsel opposes the
referral, that official includes a statement of the reasons for the deci-
sion and makes an alternative recommendation (j.e., close out investiga-
tion, change to civil referral, or change to administrative action). The
package is nevertheless sent to the Ofice of Criminal Enforcement for
review, and the Assistant Administrator for Enforcement and Compliance
Monitoring makes the final referral decision.
The Headquarters review focuses on the adequacy of case development, suffi-
ciency of evidence, adherence to the criminal enforcement priorities of the
Agency, legal issues of first Impression, consistency with related program
office policy, and general proaecutorial merit. This review should also
take into consideration any actions or statements that could undermine a
CWA Compliance/Enforcement 9-11 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
prosecution. In cases involving particularly complex issues of law, the
Office of Criminal Enforcement consults the Office of General Counsel. If,
following this review process, the Assistant Administrator accepts the
referral recommendation, he or she sends the referral simultaneously to
both the United States Attorney and DOJ. The Office of Criminal Enforce-
ment drafts cover letters to those offices.
ReferralPackage Format
Referral packages should be prepared in accordance with "Format for
Criminal Case Referrals," Issued by NEIC on October 31, 1984. Exhibit 9-6
contains a copy of this format.*
References
Any Agency employee who is involved in the investigation and referral to
the Department of Justice of allegations of criminal violations of the CWA
should be familiar with the Agency documents listed below. Although a
digested form of some of this material is contained in this chapter, most
of the items are not covered in detail. Copies may be obtained by contact-
ing the Office of Criminal Enforcement, OECM, LE-134C, EPA Headquarters,
FfS-557-7410.
» Functions and General Operating Procedures for the Criminal
Enforcement Program, January 7, 1985;
• Criminal Enforcement Priorities for the Environmental Protection
Agency, October 12, 1982;
* Agency Guidelines for Participation in Grand Jury Investigations,
April 30, 1982|
» The Use of Administrative Discovery Devices in the Development of
Cases Assigned to the Office of Criminal Investigations, February
16, 1984;
* Policy and Procedures on Parallel Proceedings at the Environmental
Protection Agency, January 23, 1984;
* Role of EPA Supervisors During Parallel Proceedings, March 12,
1985;
Special procedures may be used in infrequent and unusual circumstances
where immediate resort to the grand jury's compulsory process may be
required In investigations of ongoing illegal activity or when there are
grounds to anticipate the flight of a witness or defendant. Such
procedures are set forth in Part IV of "Functions and Operating
Procedures for the Criminal Enforcement Program" (Exhibit 9-4).
CWA Compliance/Enforcement 9-12 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
• Guidance Concerning Compliance with the Jencks Act, November 21,
1983;
• Guidance on Sampling, Preservation and Disposal of Technical
Evidence in Criminal Enforcement Matters, June 11, 19.84; and
• Press Relations on Matters Pertaining to EPA's Criminal Enforcement
Program (draft).
CWA Compliance/Enforcement 9-13 Guidance Manual 1985
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Chapter Nine Criminal Enforcement
CWA Compliance/Enforcement 9-L4 Guidance Manual 1985
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Chapter Nine
2 Exhibits
This section contains the following exhibits:
Exhibit 9-1: Criminal Enforcement Provisions of the Clean Water Act
Exhibit 9-2: Sample Criminal Information
Exhibit 9-3: Sample Criminal Information
Exhibit 9-4: Functions and General Operating Procedures for the
Criminal Enforcement Program
Exhibit 9-5: Office of Criminal Investigations: Management and Field
Offices
Exhibit 9-6: Format for Criminal Case Referrals
CWA Compliance/Enforcement 9-15 Guidance Manual 1985
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Chapter Nine Exhibits
CWA Compliance/Enforcement 9-16 Cuidaace Manual 1985
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Chapter Nine Exhibit 9-1
Criminal Enforcement Provisions of the Clean Water Act
CWA §309. Enforcement (33 D.S.C. §1319)
(c)(l) Any person who willfully or negligently violates section
1311, 1312, 1316, 1317, or 1318 of this title, or any permit condi-
tion or limitation implementing any of such sections in a permit
issued under section 1342 of this title by the Administrator or by a
State or in a permit issued under section 1344 of this title by a
State, shall be punished by a fine of not less than $2,500 nor more
than $25,000 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 para-
graph, punishment shall be by a fine of not more than $50,000 per
day of violation, or by imprisonment for not more than two years, or
by both.
(2) Any person who knowingly makes any false statement, represen-
tation, or certification in any application, record, report, plan,
or other document filed or required to be maintained under this
chapter or who falsifies, tampers with, or knowingly renders inac-
curate any monitoring device or method required to be maintained
under this chapter, shall upon conviction, be punished by a fine of
not more than $10,000, 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 contained in section 1362(5) of
this title, any responsible corporate officer.
CWA §311. Oil and hazardous substance liability (33 U.S.C. §1321)
(b)(5) Any person in charge of a vessel or of an onshore facility
or an offshore facility shall, as soon as he has knowledge of any
discharge of oil or a hazardous substance from such vessel or facil-
ity in violation of paragraph (3) of this subsection, immediately
notify the appropriate agency of the United States Government of
such discharge. Any such person (A) in charge of a vessel from
which oil or a hazardous substance is discharged in violation of
paragraph (3)(i) of this subsection, or (B) in charge of a vessel
from which oil or a hazardous substance is discharged in violation
of paragraph (3)(ii) of this subsection and who is otherwise subject
to the jurisdiction of the United States at the time of the dis-
charge, or (C) in charge of an onshore facility or an offshore
facility, who fails to notify immediately such agency of such dis-
charge shall, upon conviction, be fined not more than $10,000, or
imprisoned for not more than one year, or both. Notification
received pursuant to this paragraph or information obtained by the
CWA Compliance/Enforcement 9-17 Guidance Manual 1985
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Chapter Nine Exhibit 9-1
exploitation of such notification shall not be used against any such
person in any criminal case, except a prosecution for perjury or for
giving a false statement.
CWA §404. Permits for dredged or fill material (33 O.S.C. §1344)
Any person who willfully or negligently violates any
condition or limitation in a permit issued by the Secretary under
this section shall be punished by a fine of not less than $2,500 nor
more than $25,000 per day of violation, or by imprisonment for not
more than one year, or by both. If the conviction is for a viola-
tion committed after a first conviction of such person under this
paragraph, punishment shall be by a fine of not more than $50,000
per day of violation, or by imprisonment for not more than two
years, or by both.
(B) For the purposes of this paragraph, the term "person" shall
mean, in addition to the definition contained in section 1362(5) of
this title, any responsible corporate officer.
CWA Compliance/Enforcement 9-13 Guidance Manual 1985
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Chapter Wine . Exhibit 9-2
Sample Criminal Information
UNITED STATES DISTRICT COURT FOR THE
SOUTSESH DISTRICT OF WEST VIRGINIA
CHARLESTON
ONXTSD STATES OF AMERICA
CRIMINAL HO,
I0*- '}*.$$ 0
33 U.S.G. i U19(e) (I)
33 O.S.C. f Ul9(c)<2>
CHEMICAL FORHULATORS . IHC ,
a Georgia corporation; and
MICHAEL M. WATTS
lHFORMATI_Og
The United Scatas Attorney charges:
FISST COOST
1. At all tiaas material hereto. CHEKtCAL FORXULATOH3,
INC., a Georgia corporation, was a parson engaged in manufac-
turing chemicals, pesticides and other substances at Hitro.
tfasc Virginia, vtchia ehe Southern Diatricc of Hesc Virginia.
2. Ac all timas aacerial hereto, MICHAZL H. WATTS
was Che production manager or plant manager of the CHEMICAL
FORMULATORS. INC., facility at Hitro, Mast Virginia.
3. AC all times material hereto, National Pollutant
Discharge Elimination System Permit Number WV0000103, issued
April 29. 1976 Co CHEMICAL FORMULATORS. INC.. upon the
application of R. Eugene Klncaid, was e££acciv« and binding
co regulate eha discharge of pollutants from Che Nitro
facility into the Kanawtaa River, a navigable vacer of the
U.jited Scacea.
4. Oa or about the 17ch day of March, 1977, at Micro,
West Virginia and tn the Southern District of Uesc Virginia,
MICHAEL M. WATTS, and CHEMICAL FQRMULATORS, ISC , did will-
fully, negligently and unlawfully discharge a pollutant, to
wit phenol, in an amount greater than che amount authorized
by national Pollutant Discharge Elimination Syacem Permit
lumber '.JV0000108, into tha Kanswha River, in violation of
;.cle 33, Oniced Scacaa Code, Section 1319
-------
Chapter Nine _ , Exhibit 9-2
SECOND COUNT
1, The Unit:ad States Attorney hereby reallages each
and every allegation contained ia paragraphs one through
threa of the First Count of this Information.
2. On or about the 6th day of April, 1977. at Nitro,
S«st Virginia and in cha Southern District of Vast Virginia,
MICHAEL M. WATTS, and CHEMICAL FQ8MULAIQRS, IKC. , did will-
fully, negligently and unlawfully discharge a pollutant, to
wit phenol, is «n amount greater than the amount authorized
by national Pollutant Discharge Elimination System Permit
Bumbor HV0000108, inco the Kanawha Rivar; la "violation of
Titl* 33. United States Code, Section 1319(c)(1).
THIifl COONT
1. The Oaiced States Attorney hereby raalleges aach
and every allegation contained to paragraphs one through
tare* of the First Count of this Information.
2, On or about the 7th day of April, 1977, ac Micro,
Seat Virginia and ia the Southern District of Vest Virginia,
MICHAEL H. WATTS, and CHEMICAL FORHULATORS. QIC.. did will-
fully, negligently and unlawfully discharge a pollutant, to
vie phenol, in as amount greater than the mount authorized
by National Pollutant Discharge Elimination System Permit
Number WV0000108, into the Kanauha River, in violation of
title 33. United State* Coda, Section 1319(e)(l).
FOURTH COdHT
1. The United States Attorney hereby realleges each
aad every allegation contained ia paragraphs one through
three of the First Count of this Information.
2. On or about the 10th day of June. 1977, at llitro,
Vest Virginia and in the Southern District of Uest Virginia,
MICHAEL M. WATTS, and CHEHICAL FORMJLATOES. INC.. did will-
fully, negligently and unlawfully discharge a pollutant, to
CMA Compliance/Enforcement 9-20 Guidance Manual 1985
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Chapter Nine Exhibit 9-2
vie phenol, in an amount greacsr Chan che amount
by Rational Pollutant Discharge Elininaeion System Persic
Humber WV0000108, into che Kanawha River; in violation of
Tide 33, United States Coda, Section 1319(c)(l).
FIFTH couirr
1. The United Scates Attorney hereby realleges each
and rvory allegation contained in paragraphs one through
three of che First Count of ehii Information.
2. On or about the 13ch day of June, 1977. ac Nitro.
Vest Virginia aad in the Southern District of West Virginia,
HZCSAEZ. M. WATTS, «nd CHEKICAL FQIMBLftXQRS, JSC., did will-
folly, negligently and unlawfully discharge a pollutant, to
vie phenol, la an amounc greater Chan the amount authorized
by Hationml Pollucanc Discharge Elimination Systen Permit:
Number WV0000108, into che Kanavha River; in violation of
Ttcla 33, United Scacea Code, Section 1319(c)(l).
SDCTH COCST
1. file United States Attorney hereby real legs s each
aad every alligation contained in paragraphs one through
three of die First Count of this Information.
:. On or about che 16ch day of June, 1977, ac Nitre,
Weat Virginia and in Che Southern District of West Virginia,
MICHAEL M. WATTS, and CHEMICAL FORMULATORS, INC., did will-
fully, negligently and unlawfully discharge a pollutant, to
wit phenol. In an amount greater Chan che amount authorised
by National Pollutant Discharge Elimination System Permit
Sumbar WVOOOOIOS, ii.co Che Kanawha River; in violation of
Ticla 33, United States Code, Section 1319(c)(l).
SEVENTH COUNT
1. The United States Attorney hereby realleges each
and every allegation contained in paragraphs one through
three of ehe First Count of chis Information
CWA Compliance/Enforcement 9-21 Guidance Manual 1985
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Chapter Nine Exhibit 9-2
2. On or about the 17th day of Juno, 1977, ac Nitre,
Wasc Virginia and in the Southern District of West Virginia,
MICHAEL M. WAITS, and CHEWC*! FOW" »TORS. ISC., did will-
full/, negligently and unlawfully discharge a pollutant, to
wit phenol, la as mount greater than the amount authorized
by National Pollutant Discharge Elimination System Permit
Number UVOOOOlOa, Into the Kaaavha River, In violation of
Tic la 33. Unicad States Cade, Section U19(c)(l).
EIGHTH COPOT
1. The United States Attorney haraby realleges each
and every allegation contained la paragraphs one through
three of too-Fine Count of tola- Information.
2. On or about the 18th day of November, 1977, at
Nino, Beat Virginia and in Che Southern District of West
Virginia. HICHAEL M. WAITS, and CHEMICAL FOBMUUTORS. ISC.,
did willfully, negligently and unlawfully discharge a pol-
lutant, to wit phenol, in an amount greator than the amount
authorized by National Pollutant Discharge Elimination
System Permit Number MV0000108, into the Ranawba River, in
violation of title 33, United St««» Coda, Section 1319
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Chapter Nine luMbit 9-2
TEMTH COTJHT
1. The United States Attorney hereby realleges each
and every allegation contained in paragraphs one through
three of the First Count of this Information.
2. On or about ehe 1st day of April, If77, ae Micro,
West Virginia and la the Southern District of West Virginia,
MICHAEL M. WATTS, and CHEMICAL FCRHULATOHS. XHC., did know-
ingly maka a falsa statement and representation in a document
filed with the Voiced States Environmental Protection Agency
undar Tide 33, United States Code, Section 1231, et, sag. ;
is violation of Title 33, United States Code, Section 1319{c)(2),
ELgfEHTH COUHT
1. The United States Attorney hereby realleges each
•Bd every allegation contained in paragraphs one through
three of the First Count of tali Information.
2. On or about the 2nd day of July, 1977, at Sitro,
West Virginia and in the Southern District of West Virginia,
MICHAEL M. WATTS, and CHEMICAL FOSMULATOES, DIG., did know-
ingly sake * false statement and representation in a document
filed with the United States Environmental Protection Agency
under Title 33, United States Code, Section 1251, ec teg. ;
in violation of title 33, United States Cods, Section 1319(c)(2).
TWELFTH COITOT
1. the United States Attorney hereby realleges each
and every allegation contained in paragraphs one through
three of the first Count of this Information.
2. On or about the llth day of October, 1977, at
Micro, West Virginia aad in the Southern District of West
Virginia, MICHAEL H. WATTS, and CHEMICAL FOBMULATORS. IHC. .
did knowingly make a false statement and representation in a
document filed with the United States Environmental Protection
Agency under Title 33, United States Coda, Section 1251, ee
CWA Compliance/Enforcement 9-23 Guidance Manual 1985
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Chapter Nine Exhibit 9-2
gag. ; in violation of Tide 33, Uniced Scaces Code, Section
1319(c)(Z).
ROBERT B. KING
United Scaces Attorney
By:
MARY STAHLExTEINBERs
Assistant Uniced Scaces Attorney
CWA Compliance/Eaforcement 9-24 Guidance Manual 1985
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Chapter Nine Exhibit 9-3
Sample Criminal Information
WITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT 0? WEST VIRGINIA
CHARLTSTON
UNITED STATES OF AMERICA
v. CRIMINAL HO.
53V.S.C. i
33 U.S.C. { 1311. for
CUNKIKCHA" ENTERPRISES, INC., Counts 1-6;
a West Virginia corporation, aad 33 B.S.C. f 13l9(c)(23
I. V. CUNNINGHAM, JR. for Counts 7-8.
United States Attorney charges:
msT COURT
1. Ac all clsus material hereto, defendant CUNNINGHAM
ENTERPRISES, INC., a Weic Virginia corporation, was a parson
engaged in the business of developing and .operating a mobile
BOB* park, that is, Fairlawn Habile Borne Park, wishia the
Southern District of West Virginia, and in she business of
acquiring aad disposing of fly ash, chat is, refuse or vasta
oactrial derived from fuel buraed la boilers of"Union Carbide
Corporation, within the Southern District of Vest Virginia.
2. Ac all tints material hereto, defeadaat 1. V.
CUNNINGHAM, JR., was president and controlling stockholder of
defendant CUNNINGHAM ENTERPRISES, INC.
3. At all times aatarlal hersso, CUNNINGHAM ENTERPRISES,
ISC.,' and I. V. CUNNISGEAM, JR., the def eadaass, owned anc
operated a a&xn fly ash settling pond and as asergeacy fly
ash settling pond, bosh pones located adjacent so Fairlawn
Mobile Hcae Park.
4 At all ciaes material hereto. National Pollutant .
Discharge Eliaisation Systea (hereinafter "N?3£S") Persit
*
Ntsaber WV 0002381 issued "ebr-jary 26, 1975, to Cusr.inghaa
Raalcy Company transferred 10 defendant CUSJCTGEAH ESTERPRISSS,
~"C . ;-i »f*»<""-'ve March 26, 1975, regulated ;he cischarge oi
CWA Compliance/Enforcement 9-25 Guidance Manual 1985
-------
Chapter Nine Exhibit 9-3
pollutant? from outfall 001. which was locateo at the maia fly
ash pond, into Finnay Creek.
3. Ac all else* material heraco, rinney Creek and Dutch
Hollow wars navigable waters as defined la Tide 33. United
Scaces Code. Section 1362(7).
6. *0n or about May 21. 1976, ac or near Dunbar. Kanawha
Councy. West Virginia, and within the Southern District of West
Virginia. I. V. CUNNINGHAM. JR., the defendant, did wilfully
and negligently discharge end cause co be di*charged a pollutant,
to wic. sewage, fron a point source into Finnoy Creek, without
having obtained an N?D£S permit authorizing laid discharge of
sewage; in violation of Title 33. United States Code. Sections
1311 and 1319 (c)(l).
SECOND COUNT
I. The United States Attorney hereby realleges each
and every allegation contained in paragraphs one through
five of the First Count of this Information.
2. On or about March 29. .1977. a: or near Dunbar.
Kaaawha Carney, Best Virginia, and within the Southern
District of West Virginia. CUNNINGHAM ENTZRPSISES, IDC., the
defendant, did wilfully and negligently discharge and cause
to be discharged a pollutant, to wit. sewege, from a point
source into ?inney Creek, without having obtained an N?DES
permit authorizing said discharge of sewage; in violation of
Title 33. United States 'Code, Sections 1311 and 1319(cMl).
THIRD COUNT
1. The United States Attorney hereby realleges each and
every allegation contained in paragraphs one through five of
trie First Count of this Information.
2. On or about June 28, 1977, at or near Dunbar,
Kanavha County, West Virginia,, and within the Southern
District of Vest Virginia, CUNNINGHAM EHTiRPRISIS, ISC., the
defendant, did wilfully and negligently discharge and cause
CWA Compliance/Enforcement 9-26 Guidance Manual 1985
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Chapter Nine Exhibit 9-3
to bt discharged pollutants, that is, industrial waste, into
Dutch Hollow, from a point source other chaa the source
a-^hcrized by SPDES Persic Nunber WV 0002381. aad without
having obtained an NPBES permit for said discharge of industrial
waste, in violation of Tide 33. United States Code. Section
1311 aad*1319(cKl).
FOURTH COUNT
1. The United State* Attorney hereby realleges each and
•very allegation contained in paragraphs one through five of
eh* Fine Count of this Information.
2. On or abouc November 16, 1977, at or near Duabar,
Kaaawha County, Uesc Virginia. _ and within che Southern
District of Vest* Virginia, CDNNINGEAM ENTERPRISES . IDC., the.
f
defendant, did wilfully and negligently discharge aad cause
to bt discharged pollutants, that is, industrial waste, into
Dutch Hollow, from a point source other than che source
authorized by NPDES Peraic Number WV 0002381, and without
having obtained an NPDES permit for said discharge of industrial
waste; ia violation of Title 33. United States Code. Sections
1311 and L319Cc)(l).
COUNT
1.- The United States Attorney hereby realleges each and
every allegation coatainea in paragraph* one through five of
the First Count of this Information.
2. On or abouc April 13, 1978. at or near Dunbir.
Kanavha County. Vest Virginia, and vichin the Southern
District of West Virginia, CUNNINGHAM ENTERPRISES, INC.. the
defendant, did wilfully and negligently discharge aad cause
to be- discharged pollutants, that is, industrial wasca, into
Dutch Hollow, from a point source other .than the source
authorized by I57DES Peraic Nusber WV 0002381, and without
having' obtained an N?DES pencit for said discharge of industrial
waste; in violation of Title 33, United States Code, Sections
1311 and 131IX..X1;
CWA Compliance/Enforcement 9-27 Guidance Manual 1985
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Chapter Nine Exhibit 9-3
SIXTH COURT
1.. the United States Attorney h«*reby realleges each aad
every allegation contained is paragraphs one through five of
the Fine Coons of this Xaforsaties.
2. On or about May 28, 1979. at or near Dutibar, Kaaavna
County., tfett Virginia, and «tthia the Soutnera District of
Hast Virginia, CtnmtMGKAK SMTEBFSISES, INC.. she defendant,
did wilfully and n«glig«ntly discharge and cause to be
discharged a pollutant, to wit, seuage, from a point source
into Tinnoy Creek, vithout having obtained aa KPDES permit
authorizing said discharge of savage; in violation of Title
33. United States Code. Sections 1311 and 1319(e)(l).
SgVP.TH COUNT
1. Th« United States Attorney hertby- realleges each and
every allegation coataiaed is paragraphs erne through five ef
the First Count of this Information.
2. On or about April 6. If71. ac or sear Diasbtr. Kanawha
Coasey, (fast irirgiaia, and withia the Southera District of
Heat Virginia. CUHKINCHAM arrEKPSlSES, IMC,, the defendant.
did k&oviagl? pake and cause to bo aade a false itateneat and
representation la-a document, that is. a letter dated April 6,
1978, which letter was written in response to a request for
infornatlon aade by the teireo States Environnental Protection
Agency pursuant to Title 33, United States Code, Section 1318,
teaouiag such document to contain * false statement ard
representation regarding discharge of sewage fcoi -.ocile hoae
units of the Fairlavn Mobile Hooe Park as follows
"In regard to question. &$abar (1), I aa advised
as of 1973 all of the mobile homes in the Fairia«a
Mobile Hone Park »ere disposing of the sewage through
connection to tne Diabar Sanitary Board fewer systes,
excepting 23 cobile hooe units uhien were connected
to septic tank systeas.
2. The disposal systeo set forth is paragraph (1)
. vat used until Occobe:, 1975, at which tine all units
were than connected to the Ues; Suabar Public Service
District.
CWA Compliance/Enforcemeat 9-28 Guidance Manual 1985
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Chapter Nine Exhibit 9-3
,3. (a) City of Dunbar Sanitary Board system;
(b) Occurred prior to tbe corporate charter
of Curaingnam Enterprises, Inc.;
(c) May. 1977, for «U but 23 aosile home
units and the remainder in July, 1977,
(d) 27th Street lif: station.
You should be advised that as noted above, the entire
sanitary sewage systers for all of the mobile hoses
comprising the Fairlawn Mobil* Hone Park wara on July 1.
1977, connected to tbe U«ic thmbar Public Service
District, vhlch is not a s&taicipal seuage collection
treatment system, and is a public service district
organized under the laws of the State of Hast Virginia."
when, ia truth and in fact, as defendant CUNNINGHAM DTTtSPIUSES,
INC., then aad there well knew, savage frea Tairiawn Mobile
Hoot Park was being discharged iato the sals fly ash pood and
eaaace iato Fiaa'ty Creek; in violation of title 33, United
Scatea Code, Section 1319(c)(2).
EIGHTH COUNT
1. The Baited States Attorney hereby realleges each and
every allegation contained in paragraphs ene through five of
the First Caanc of tais Indorsation.
2. On or about July 7. 1978, at or ae*r Disbar, Kasawaa
Councy, Best Virgiai*. aad within coe Soushem District of
West Virginia, OJHNINCEAM 2K7EKPRISZS. INC., the defendant.
cid knowingly make and cause to be made a. false stateaent and
representation in a docuaer.;, that is, a letter dated July 7,
1S7S, which lecctr uai written in response to a request for
information made by the United States E-*ifesBe&tal Protection
Agency pursuant to fide 33, United States Code. Section 1318,
knowing such document to contain a false stateaenc and
representation regarding discharge of sevage into :he aain
fly msh pond of CUNNINGHAM ZHTES?RISSS. INC.. as follows-
"Sanitary wastes were deposited ia :he sain fly
ash settling pond cosing, frcm adjacent dwelling
houses nee owned or controlled by the Persittee
CWA Compliance/Enforcement 9-29 Guidance Manual 1985
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Chapter Nine Exhibit 9-3
"tie: sure. Evidence! «ai noted of th* sam« by
the Ucst Virginia Separtaene of Natural Resources bu:
not sure as to whether or not such **ax"ary waste
cane from the soptiv, syi-.am u«. Crua the *cj*canc
dwelling houses l=*scuch tt th«y had no se;cic syizess
or savage disposal sysceau."
vhea, in truth and ia fact, as CUNNINGHAM ENTERPRISES, INC.,
the defendant, then and there well knew, tevige froa Fair lavs
Mobile Hon« Park was being discharged into the sain fly ash
pond and thence into Finney Creek; in violation of Title 33,
Dnieed States Code, Section 1319
-------
Chapter Nine Exhibit 9-4
Functions and General Operating Procedures
for the Criminal Enforcement Program
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20440
OI-FIIE OF 'XFONI t-MC
KNDCnVPI I KM I-
MI'MTl'HIMi
MEMORANDUM
SUBJECT: Functions and General Operating Procedures for
Che Criminal Enforcement Program
Courtney M. Price icJT A
Assistant Administrator V *)
To: Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Regional Counsels
I am pleased to transmit the final operating procedures
for the criminal enforcement program. These procedures were
developed after extensive coodination with and comments from
Che Regional offices and program staffs. Your assistance has
been valuable in developing procedures that will accomodate
the interests and needs of Che various offices of the Agency
and enhance our ability to conduct a rigorous and effective
criminal enforcement effort. These procedures replace the
interim operating procedures which were issued in January,
1984.
We have attempted in this guidance to recognize the
significant role that the Regional Counsels, Regional Program
Offices and the National Program Managers play in the criminal
enforcement program. Active participation by all of us is
essential to its success. I look forward to working closely
with you.
Specific questions concerning this guidance may be
directed to Randall M. Lutz, Assistant Enforcement Counsel
for Criminal Enforcement (FTS 382-4543; E-Mail Box EPA2201).
Attachment
CWA Compliance/Enforcement 9-31 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
FUNCTIONS
and
GENERAL OPERATING PROCEDURES
for the
CRIHINAL ENFORCEMENT PROGRAM
CWA Compliance/Enforcement 9-32 Guidance Manual 1985
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Chapter Mine Exhibit 9-4
I. PURPOSE AND PHILOSOPHY
These General Operating Procedures establish the process by
which suspected criminal activity is investigated and prosecuted
by the various agencies and officials involved. In addition,
the functions, roles and relationships of these entities are
set forth under a variety of circumstances. Because of the
need in each case to involve many geographically dispersed
professionals of various disciplines, this guidance emphasizes
a "team" approach to the investigation and prosecution of
criminal cases. The procedures set forth below are not to be
rigidly interpreted. It is recognized that certain cases may
require flexibility to proceed successfully.
II. ROLES AND RELATIONSHIPS
Hose aspects of the Agency's enforcement program have
been delegated in significant measure to the Regional Offices.
The critical stage in development of the criminal enforcement
program, the need for specialized expertise and consistency,
however, dictate a centralized management approach for the
program. Management of criminal legal and policy functions will
be focused at Headquarters, and the management of criminal
investigative functions will be focused at the National Enforce-
ment Investigations Center (NEIC).I It is understood that the
actual enforcement efforts in each case will require a team
effort which relies upon the contribution of Headquarters
and regional legal and technical staff and the Department of
Justice (DOJ).
The Office of Enforcement and Compliance Monitoring (OECM):
The Assistant Administrator for Enforcementand Compliance
Monitoring~~~
The Administrator has delegated the responsibility to
develop and implement this program to the Assistant Administrator
for Enforcement and Compliance Monitoring (the Assistant Admini-
strator). The Assistant Administrator maintains policy and
operational control for this program through the Associate
Enforcement Counsel for Criminal Enforcement and Special
Litigation (the Associate Enforcement Counsel) and the Director,
NEIC.
Criminal enforcement policies and priorities are established
through the Assistant Administrator. The Assistant Administrator
oversees the criminal investigating program, and reviews and
approves criminal referrals to DOJ. The Assistant Administrator
ensures consistent and complementary use of the civil and
criminal enforcement authorities available to the Agency
(including, where appropriate, parallel proceedings), develops
and defends the budget, and allocates investigative resources
for the program.
CWA Compliance/Enforcement 9-33 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-2-
The Associate Enforcement Counsel for Criminal Enforcement and
Special Litigation
The Associate Enforcement Counsel, through the Assistant
Enforcement Counsel for Criminal Enforcement (the Assistant
Enforcement Counsel), is responsible for providing legal
guidance to the Agency on all aspects of the criminal enforcement
program, informing the Assistant Administrator of ongoing
case activity and articulating investigation and litigation
priorities by developing an enforcement strategy, together with
the NEIC, for the program. To implement these responsibilities,
the Associate Enforcement Counsel through the Assistant Enforcement
Counsel, supervises the Criminal Enforcement Division (CEO)
which coordinates the team Investigation and prosecution of
criminal cases with DOJ's Land and Natural Resources Division
and local federal and state agencies; provides legal advice and
support to the NEIC's Office of Criminal Investigations (OCI)
and to the Regional Counsels; reviews all criminal referrals
to DOJ; participates in the prosecution of selected cases of
national importance or that exceed the resources of local or
regional offices; makes recommendations on the use of parallel
proceedings; develops training programs for agency legal and
regional program staff; issues legal updates of significant
decisions by the United States Supreme Court and other courts;
and reviews the legal soundness and consistency of guidances
and procedures developed throughout the Agency.
The National Enforcement Investigations Center (NEIC)
The Director, NEIC, through the Assistant Director for
Criminal Investigations (the Assistant Director) , monitors
and supervises all investigative activities arising under che
criminal enforcement program through the Office of Criminal
Investigations' Area Offices (and Resident Offices), the Washington
Staff Office, and the NEIC Investigative Unit. The NEIC
formulates procedural and technical guidance for the conduct
of Agency investigations.
The Director, NEIC, assumes overall responsibility for
recruiting the Agency's investigative staff, informing the
Assistant Administrator of Investigative activity; and recom-
mending how investigative resources should be allocated among
the Regions consistent with national enforcement strategies.
The NEIC develops and implements training programs on operational
aspects of criminal case development for Agency personnel. It
assumes responsibility for technical support in Agency criminal
investigations that have inter-regional ramifications or
that exceed the resources of the technical staffs of individual
Area or Regional Offices.
The NEIC oversees the criminal investigative activity in
each of the Area Offices. Further, while day-to-day investigative
CWA Compliance/Enforcement 9-34 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-3-
decisions are usually made in che Area Office under Che super-
vision of a Special-AgenC-in-Charge (SAIC), in designated
cases of national significance or of particular sensitivity,
the Assistant Director has the authority to direct the investi-
gative activity of any Area Office. The Assistant Director
also reviews and concurs in performance evaluations of the
criminal investigators (Special Agents) and conducts the
performance evaluations of the SAICs. Final approval of SAIC
•performance evaluations is given by the Director, NEIC.
Area Offices: A key component of the NEIC's centralized
management approach to Che criminal enforcement program has
been the development of Area Offices. Special Agents constitute
Headquarters rather than regional resources and are part of the
staff of NEIC. They are housed in an Area Office and are supervised
by a SAIC who reports to the Assistant Director. The management
of any given investigation is the primary responsibility of
the Special Agent, acting under che immediate supervision of
the SAIC.
The SAIC in each Area Office ensures that events (witness
interviews, investigative developments, opening and closing
of investigations) in each of the cases and investigations are
properly documented by che investigative staff utilizing scandard
agency forms. In certain Regions, the numbr of Special Agents
assigned and the investigative caseload has not yet risen to
a level Justifying the presence of an Area Office. A Resident
Office will be located in each such Region, directed by a
Resident-Agent-in-Charge who reports in Curn Co the SAIC who
is responsible for the Region in which the Area Resident Office
is locaCed.
NEIC Invescigacive Unic: A Special NEIC Investigative
Unit, also staffed by experienced Special Agents, is located
ac che NEIC headquarters in Denver. Unlike Area Offices,
this uniC has national jurisdiction, focusing on cases that
span Che Jurisdiccion of two or more Area Offices, Chat set
national precedent or where investigative demands are beyond
the capacity of a particular Area Office. Investigators
assigned to this unit also participate, where appropriate, in
investigations in which the NEIC is providing technical support.
The NEIC Invescigacive UniC -- like Che Area Offices -- is
managed on a day-Co-day basis by a SAIC, who reports in turn to
the Assistant Director.
Washington Staff Office: The Washington Scaff Office
serves as che OCI's focal poinc ac EPA Headquarters and provides
a liaison with all Headquarters program offices and with law
enforcement agencies located in the Washington area. This
office selectively participates in investigations of national
importance.
CWA Compliance/Enforcement 9-35 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-4-
The Office of Regional Counsel (ORC)
Special Agents will coordinate closely with Regional Attoneys
throughout the investigative process and will utilize the
expertise of selected Regional Attorneys for advice on specific
cases and EPA'a statutes and regulations. To facilitate this
consultation, each ORC will designate a Regional Attorney Co
serve as a contact with Che criminal enforcement program.
Furthermore, this Regional Attorney will be assigned to a case
early in the case development process to assist as needed in
the investigation, indictment, and prosecution. Both the
Regional Attorney and the Special Agent coordinate and consult
with the CED in resolving issues concerning the application
of criminal law to the criminal enforcement of environmental
statutes.
The Regional Attorney nay become a member of the prosecu-
tion team, joining the prosecutor, the attorney from the CEO,
technical and program personnel and the Special Agent. The
Regional Attorney may assist in evidence review or documenta-
tion and statutory and regulatory interpretation and other
functions as assigned by the Regional Counsel necessary for
the successful prosecution of the case. The CEO supports such
activities by providing specialized expertise in the application
of criminal law to environmental enforcement.
The Regional Administrator
The Regional Administrator, or his designee, will be kept
apprised of criminal enforcement matters occurring in the
Region. To coordinate criminal investigations with other
Agency activities, notification to the Regional Administrator
should occur, for example, when a decision is made to pursue
parallel civil/criminal enforcement proceedings, or when inves-
tigations involve companies or individuals who are also involved
with the Agency on other, unrelated matters. It is the respon-
sibility of the Regional Counsels (as advised by the Regional
Attorney assigned to assist in a criminal investigation) to
timely notify the Regional Administrators of appropriate cases
and developments. The Director, NEIC, and appropriate Regional
Program Division Directors will notify the Regional Administrators
of appropriate investigative situations. Once apprised of a
criminal enforcement activity, it is Che Regional Administra-
tor's function to notify State regulatory agencies of important
developments in criminal investigations as appropriate.
The Program Assistant Administrators
As the national program managers, the Program Assistant
Administrators work wich the CED in the establishment of
Agency-wide and media-specific compliance and enforcement
priorities. These priorities will provide a framework for
decisions on Che allocation of EPA'3 criminal investigative
and technical resources.
CWA Compliance/Enforcement 9-36 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-5-
As in other enforcement areas, Program Assistant Adminis-
trators provide technical support and other resources to Head-
quarters and to the regions to support criminal investigations,
case development and prosecution. NEIC and the CED will provide
the Program Assistant Administrators with projections of
anticipated resource needs Co ensure adequate technical and
legal support for such purposes.
Each Program Assistant Administrator will appoint one
individual to coordinate with che CED and the NEIC on criminal
enforcement matters. Subject to the normal constraints on
dissemination of information concerning criminal cases,
consultation will occur during che referral review process
to ensure that a specific case does not raise policy issues
Chat should be brought to the attention of the Assistant
Administrator prior to the referral decision.
The Regional Program Division Directors
The Regional Program Division Directors play an important
role in the case development process by providing upon request
technical support for an investigation through consultation or
actual field work, as needed and as resources are available.
The expertise of the technical staff in the various media is
an excellent resource for case development. Also, in those
cases that are prosecuted and go to trial it will often be
necessary for the regional technical staff to testify as deter-
mined by the prosecutor.
The Regional Program Division Directors will designate a
contact staff member for support of criminal investigations
involving che functions of that division.
The Office of General Counsel (OGC)
In criminal enforcement matters, as in other areas of Agency
activity, the General Counsel is responsible for interpreting
laws and regulations to ensure their consistent application.
OGC attorneys also assist in resolving legal Issues involving
the interpretation of environmental statutes chat arise
during investigations, during the review of criminal referrals,
or during the prosecution of criminal cases. OGC also partici-
pates in the preparation of briefs and other court documents
in criminal cases, and, in consultation with CED, makes
determinations whether to appeal adverse court decisions.
The Department of Justice (DOJ)
DOJ and local United States Attorneys provide legal advice
upon request during field investigations and obtain criminal
search warrants and other court processes in support of EPA
criminal cases. They direct the conduct of grand jury investi-
gations and proceedings, and all prosecutions and appeals of
CVA Compliance/Enforcement 9-37 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-6-
federal criminal environmental cases. In consultation with
EPA attorneys and investigators, DOJ prosecutors negotiate and
accept plea agreements and make sentencing recommendations.
In addition, DOJ monitors the exercise of law enforcement
powers by EPA Special Agents.
III. INITIATION AND CONDUCT OF AN INVESTIGATION
This Section describes the Interaction of the participating
offices in the initiation and pursuit of a routine Investigation.
The roles described herein are for guidance and can be changed
to accommodate the special circumstances of the investigation
and prosecution of a specific case.
Initiation of an Investigation: Preliminary Inquiry
An initial "lead" or allegation of potential criminal
activity may come to the Agency from any of several sources,
including State agencies, routine compliance inspections,
citizens or disgruntled company employees, among others.
Regardless of its source, the SAIC and/or the Resident-Agent-in
Charge (RAIC) should be immediately notified. The SAIC or
RAIC evaluates the lead and, if necessary, assigns a Special
Agent for follow-up, assigns a case number and opens an investi-
gative file.
If the reliability of the lead is unclear, the Special
Agent conducts a preliminary inquiry to determine the credibility
of the allegation and makes an initial assessment of the need
for a more thorough investigation. This initial inquiry is
brief, and involves no extensive commitment of resources or
time. The purpose is to reach an initial determination on the
need for a complete investigation. The CED is consulted if
this determination concerns legal issues of criminal liability.
Conduct of an Investigation
Because the complexity of many environmental criminal
investigations requires the skills of various disciplines, a
team approach to the prosecution is necessary. If, after the
preliminary inquiry, the SAIC feels that the lead warrants
thorough investigation, the Special Agent will immediately
contact the appropriate Regional Counsel to determine whether
any civil enforcement action is pending or contemplated against
the investigative target. The Special Agent contacts the
designated regional program contact person for assistance and
transmittal of information when necessary. The Special Agent
contacts the appropriate Regional Program Division Directors
to determine whether any administrative enforcement action is
pending or contemplated against the target. For any particular
case where technical support during the investigation is needed,
CWA Compliance/Enforcement 9-38 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-7-
the appropriate Regional Program Division Director will be
asked co designate specific Individuals cq work with the Special
Agent during Che investigation. These activities are carried
out In consultation with the NEIC.
Overall management of the investigation is the sole responsi-
bility of the Special Agent, acting under the supervision of
the RAIC or SAIC, The Special Agent is responsible for determining
the basic investigative approach, and takes the lead in conducting
interviews, assembling and reviewing records, planning and
executing surveillances, coordinating with the United States
Attorney's offices and other federal, state and local law
enforcement agencies, obtaining and executing search warrants,
communicating with informants, contacting other witnesses and
performing other investigative functions.
In pursuing an investigation, the Special Agent is responsible
for completing all required reports and coordination and
notification requirements (interview summaries, reports of
investigation, etc.)- As a general practice, only one member
of the investigative tean will record or document any stage or
development in the investigation.
Issues and problems concerning the use of discovery devices,
the confidentiality of business information, delegations of
authority within the Agency, interpretation and application of
State statutes and enforcement proceedings, internal EPA policy
and guidance, the impact of decisions by the United States
Supreme Court and other courts, and elements of proof under
EPA's environmental criminal provisions are legal Issues that
will have to be resolved by the CED, ORC and OGC contact. It is
the responsibility of the Special Agent Co consult with and
seek the guidance of the legal contact of the QIC and the
Assistant Enforcement Counsel on these and similar issues
throughout the pre-referral investigative process.
Parallel Investigations and Proceedings I/
While simultaneous administrative/civil and criminal enforce-
ment actions are legally permissible, they are resource-intensive
1/ Agency guidelines on parallel proceedings were issued on
January 23, 1984. (See memorandum "Policy and Procedures on
Parallel Proceedings at the Environmental Protection Agency",
Assistant Administrator, Office of Enforcement and Compliance
Monitoring to Assistant Administrators, Regional Administrators,
Regional Counsels, and Director, NEIC, January 23, 1984).
Agency officials and staff should consult these guidelines
prior to conducting parallel investigations or proceedings.
Further guidance on specific issues concerning parallel
proceedings is expected to be published.
CWA Compliance/Enforcement 9-39 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-8-
and fraught with potential legal pitfalls. Parallel proceedings
will nevertheless be pursued where the public Interest requires
a dual approach, e.g., where both injunctive relief or remedial
action and criminal sanctions are warranted. Where injunctive
relief Is not needed, and where the conduct warrants criminal
sanctions, an administrative or civil proceeding seeking punitive
penalties would generally be held in abeyance by the Region
pending the resolution of the criminal investigation. The
criminal referral and the parallel administrative/civil action
of the Regional Office will each be considered to be separate
referrals for Regional management reporting purposes. Where
parallel proceedings are justified, the criminal Investigation
will be pursued in accordance with Agency guidance on the
conduct of a parallel proceeding. The Assistant Administrator
will approve the conduct of parallel proceedings upon the
advice of the Associate Enforcement Counsel and will notify
the Regional Administrator of the approval.
Coordination vich State/Local Enforcement
It is recognized that many investigations and cases can be
prosecuted at either the federal or state/local level. It is
the goal under this policy over time to refer more cases more
frequently to the state/local level as the abilities and resources
at those levels Increase and the case load at the federal
level becomes more difficult to manage. Although this concurrent
Jurisdiction raises some issues (e.g., how to avoid duplication
of effort, how to obtain the best result, should separate
cases ever be brought, etc.), they do not warrant the issuance
of a formal general operating policy in this area. If the
need becomes apparent, a policy will be drafted for review and
comment.
Whatever determinations are made about the level at which
environmental criminal cases should be prosecuted, it is
vitally important that at the investigative level close
coordination is maintained between and among federal and state/
local law enforcement and regulatory agencies. SAICs are
responsible for ensuring regular communication, exchanges of
information under appropriate assurances of security, and
coordinated actions between OCX and such agencies in investigative
activities generally and with respect to specific investigations.
IV. REFERRAL PROCEDURES
Routine Referrals
Criminal cases shall be developed as thoroughly as possible
prior to referral to DOJ. During this investigative and case
CWA Compliance/Enforcement 9-40 Guidance Manual 1985
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Chapter Nine , Exhibit 9-4
-9-
preparation process, Informal coordination among the Special
Agent, Che CEO, the Regional Attorney, DOJ and local United
States Attorneys ia encouraged.
A referral recommendation will be developed when the field
investigation has been completed. At this point, the results
of the investigation are assembled in a referral package by the
Special Agent. The Special Agent assigned to the investi-
gation ia responsible for coordinating the preparation of the
overall referral package and consulting with other members of
the investigative team. A separate legal analysis ia drafted
by the Regional Attorney.
Once the referral package is prepared, it is reviewed by
the SAIC and the Regional Counsel, who act as Joint signatories.
Technical portions of the package are alao reviewed by the
Region or Headquarters program office or the NEIC, depending
upon the source of technical support. During this technical
review, the technical resources to support the ensuing
prosecution should also be identified and their availability
specifically confirmed by the appropriate technical office.
Following completion of the referral package and concur-
rence in the referral recommendation by the SAIC and the
Regional Counsel, five copies of the referral package (with
all exhibits) should be directed Co the Associate Enforcement
Counsel, and one copy to the Director, NEIC. No copies of
this referral package will be sent to the local United States
Attorney or DOJ until Headquarters has reviewed the referral
package and the Assistant Administrator has approved the
referral. However, the Special Agent is encouraged to consult
and review documents with the local AUSA or DOJ prosecutor who
will be handling the case at the earliest possible time, as
needed for legal advice and for case development strategy at
any point in the invesigative process, even if the formal
referral has not yet been made.
The Headquarters review will focus on the adequacy of case
development, adherence to the criminal enforcement priorities
of the Agency, legal issues of first Impression, consistency
with related program office policy, and overall prosecutorlal
merit. In cases involving particularly complex issues of law,
the CED will also consult with OGC and OOJ attorneys. If,
following this review process, the referral recommendation is
accepted by the Assiaistant Administrator, copies of the referral
package will be directed simultaneously to the local United
States Attorney and to DOJ. Appropriate cover letters will be
drafted by the CED for the signature of the Assistant Administrator.
CWA Compliance/Enforcement 9-4L Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-10-
Eaergency Assistance from United States Attorneys
In unusual circumstances, it nay be necessary to secure
the Immediate assistance of the local United States Attorney
for legal process. For example, immediate resort to the grand
jury's compulsory process nay be required in investigations of
ongoing illegal activity, or when there are grounds to anticipate
the flight of a witness or defendant. Such situations will
arise infrequently. When they arise, Che SAIC, with the
knowledge of the Regional Counsel, will contact the NEtC,
which will In turn consult with the CEO. Following approval
by the Assistant Administrator, telephonic authorization to
contact the AUSA for appropriate assistance will be granted in
appropriate cases. Copies of all materials normally included
in a referral package (which have been transmitted Co the
local AUSA in connection with the emergency situation) will
then be directed immediately and simultaneously to NEIC, to
the CED and to the Environmental Crimea Unit (ECU) of DOJ's
Land and Natural Resources Division. These copies will be
sent within 48 hours. Appropriate follow-up letters to the
AUSA and DOJ will be drafted by the CEO confirming the emergency
situation.
V. POST-REFER1AL PROCEDURES
Following referral to DOJ, responsibility for managing
the prosecution rests with the prosecutor assigned to the
case. Usually, the prosecutor is a member of the local United
States Attorney's office. In cases of national significance
or beyond the resources of the local United States Attorney,
the case may be managed by the ECU. The ECU monitors the
progress of federal environmental criminal referrals throughout
the country. Within EPA, oversight of the criminal prosecution
docket is the responsibility of the CED.
The Special Agent responsible for the Investigation, working
in close cooperation with the Regional Attorney assigned to the
case, acts as primary liaison with DOJ or the local AUSA.
This Special Agent performs and coordinates additional investi-
gation as required and usually will be designated a special
agent of the grand jury if a grand jury presentation or investi-
gation is Initiated.
Many of EPA's criminal cases are developed further
through the grand jury. Stringent, closely-monitored rules
govern the conduct of grand jury investigations. To ensure
the swcrecy of the grand jury process, no one may have access
to information received by the grand jury without court per-
CWA Compliance/Enforcement 9-42 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-11-
mlsaion or rule authorization unless otherwise permitted by law.
Agency officials are responsible for familiarizing themselves
completely with these rules prior to participating in a
grand jury investigation. 2/
The CEO and ORC attorneys are responsible for fulfilling
requests for legal assistance during the litigation of the
case. CED attorneys will coordinate with Regional Attorneys
and OGC in responding to these requests. Regional program .
offices and NEIC technical staff will be available to provide
technical support as needed.
VI. PLEA BARGAINING
Negotiation of settlements in criminal cases (i.e., plea
bargaining) is the sole responsibility of DOJ and the local
AUSA although consultation with the investigative team and
the Regional Administrator is strongly encouraged. Following
referral of a criminal case, Agency officials should never
enter into independent negotiations or discussions with
the subject(s) of that referral without prior coordination
with and approval from the DOJ attorney or the AUSA overseeing
the case. It is, of course, entirely appropriate for Agency
officials working on the criminal prosecution — including
investigators, attorneys and technical personnel — to provide
input, suggestions and advice during the negotiation process.
DOJ or the AUSA conducting settlement negotiations should
consult the CED before entering into any final settlement.
VII. CLOSING INVESTIGATIONS
A case may be closed prior to or after referral to DOJ for
one or more of the following reasons: initial allegation unfounded,
referral for administrative/civil enforcement action, referral
to another agency or law enforcement office, lack of prosecutorial
2_/ Agency guidelines on grand jury investigations were cir-
culated on April 30, 1982. (See memorandum "Agency Guidelines
for Participation in Grand Jury Investigations , Associate
Administrator for Legal and Enforcement Counsel and General
Counsel to Assistant Administrators, Regional Administrators,
Regional Counsels and Director, NEIC, April 30, 1982.) Agency
officials should consult these guidelines prior to participa-
tion with DOJ in a grand Jury investigation.
CWA Compliance/Enforcement 9-43 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-12-
taerit, declination by DOJ or resolution of the ease after the
filing of charges. The decision to close an investigation
(unless it occurs because of court action or a Jury decision)
is one which usually is made after consultation among EPA
attorneys, the SAIC and the prosecutors (if it occurs after
referral co DOJ).
VIII. DEBARMENT AND SUSPENSION
As stated at 40 C.F.R. § 32.100, "it is EPA's policy to do
business only with participants which properly use federal
assistance." To protect the interests of the Government, EPA
has the authority to deny participation in Its programs to
those who are either debarred or suspended (listed; for their
illegal or improper activities. This guidance sets forth when
and how a referral for debarment is to be made.
Upon Conviction
Under the regulations, only convictions oandate listing.
Immediately upon obtaining a conviction for the violation
of either the Clean Air Act or the Federal Water Pollution
Control Act concerning a "facility", as defined in 40 C.F.R.
§ 15.3(1), the SAIC in the region where the conviction was
obtained will telephonlcally notify the CED for purposes of
further referring the natter for "listing" the violating facility.
The CED will verify the conviction by obtaining a copy of the
court's Judgment of conviction and referring the natter with
the relevant information and documents to the listing official
in OECM.
At Other Times
At any time during the Investigation or prosecution of a
ease, but before the case is closed, the SAIC may review the
facts of the case to recommend to the Assistant Director whether
a referral should be made to the Director, Grants Administration
Division, for debarment and/or suspension of Che person or
company from the opportunity to participate in EPA assistance
or subagreements pursuant to 40 C.F.R. Part 32. If the decision
by the Assistant Director, after reveiw by the Director, NEIC,
to refer the matter for debarment is aade at the tine Che case
Is to be closed, the Assistant Director will send the relevant
documents along with a report (stating the reasons for the
referral) to the CED, which will review those materials and,
if meritorious, make a recommendation for referral through
the Associate Enforcement Counsel to the Assistant Administrator.
If approved by the Assistant Administrator, the natter will
then be referred to the Director, Grancs Administration Division.
CWA Compliance/Enforcement 9-44 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-13-
Any decision by the Assistant Director to refer the matter
for debannenc while the investigation is ongoing or while the
prosecution is pending will be done in accordance with the
procedures for parallel investigations set forth In Section II
of these General Operating Procedures.
IX. REQUESTS FOR ASSISTANCE IN CRIMINAL INVESTIGATIONS
CONDUCTED BY THE JUSTICE DEPARTMENT AND THE FBI
EPA may receive requests for technical, legal or investiga-
tive assistance in environmental criminal cases that are initi-
ated independently by DOJ or the Federal Bureau of Investigation
(FBI).
It is the policy of EPA to provide support for these requests
to the extent resources permit. Requests for legal assistance in
criminal investigations fron OOJ or the FBI are reviewed by the
CEO and the Assistant Administrator. Requests for investigative
assistance involving substantial investigative and technical
resources are reviewed and determined by the Director of NEIC
and the Assistant Administrator. Accordingly, Regional Offices
that receive any such requests should forward the request to
the appropriate Area Office SAIC.
X. SECURITY OF CRIMINAL INVESTIGATIONS
Information on criminal investigations must be provided with
restraint, and only to persons who "need to know" the information.
Additionally, special attention must be given to the care and
custody of written materials pertaining to an investigation.
Active criminal investigations shall never be discussed with
personnel outside of the Agency except as is necessary to pursue
the investigation and to prosecute the case. Agency policy is
neither to confirm nor deny the existence of a criminal investi-
gation. Requests for information on active investigations from
the news media must be handled by the appropriate SAIC, the Office
of Public Affairs or the CEO consistent with the official
guidance.3_/
3/ Agency guidelines on press relations concerning investigations
Has been circulated in draft. (See memorandum "Press Relations
on Matters Pertaining to EPA's Criminal Enforcement Program",
Assistant Administrator, Office of Enforcement and Compliance
Monitoring and Assistant Administrator for External Affairs co
Assistant Administrators, Regional Administrators, Regional
Counsels, Director of NEIC and all SAICs).
CWA Compliance/Enforcement 9-45 Guidance Manual 1985
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Chapter Nine Exhibit 9-4
-14-
Finally, In the event of Inquiries from Congress, the staff
of the Assistant Administrator will work closely with the
Congressional Liaison Office prior to releasing any information
or making any public statments.
The MEIC criminal investigative offices and CEO offices are
equipped with secure office space, filing cabinets, and evidence
vaults> Similar security aeasures oust be utilized by Regional
staff assigned to an investigation.
XI. RESERVATIONS
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are not intended
to, do not, and may not be relied upon Co, create a right or
benefit, substantive or procedural, enforceable at law by a
party to litigation with the United States. The Agency
reserves the right to take any action alleged to be at variance
with these policies and procedures or not in compliance with
Internal office procedures chat may be adopted pursuant to
these materials.
CWA Compliance/Enforcement 9-46 Guidance Manual 1985
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Chapter Nine
Exhibit 9-5
Office of Criminal Investigations: Management and Field Offices
Environmental Protection Agency
National Enforcement Investigations Center
Criminal Investigations
(Management and Field Offices)
ASSISTANT DIRECTOR:
James L. Prange
EPA - NEIC
Office of Criminal Investigations
P.O. Box 25227, Bldg. 53
Denver Federal Center
Denver, CO 80225
WASHINGTON STAFF OFFICE;
NEIC Office of Criminal Investigations (LE-134C)
Washington Staff Office
401 M Street, S.W.
Washington, D.C. 20460
Special Agent-ln-Charge:
Gary Steakley
NEIC INVESTIGATIVE UNIT - DENVER:
NEIC Office of Criminal Investigations
EPA - NEIC Investigative Unit
P.O. Box 25227, Bldg. 53
Denver Federal Center
Denver, CO 80225
Special Agent-ln-Charge;
Special Agents:
Daryl C. McClary
Klrby O'Neal
Ken Wahl
Bill Smith
PHILADELPHIA AREA OFFICE (Regions I, II, and III):
NEIC Office of Criminal Investigations
Philadelphia Area Office
EPA - Region III
841 Chestnut Building
Philadelphia, PA 19107
FTS 776-5128
303/236-5128
FTS 557-7410
202/557-7410
FTS 776-5128
303/236-5128
CWA Compliance/Enforcement
9-47
Guidance Manual 1985
-------
Chapter Nine
Exhibit 9-5
Special Agent-in-Charge:
Special Agents:
Joseph F. Cunningham
Philip Andrew
John Aduddell
Robert Boodey
Michael Byrnes
Boston Resident Office (Region I):
NEIC Office of Criminal Investigations
Boston Resident Office
EPA - Region I
60 Westview Street
Lexington, MA 02173
Resident Agent-ln-Charge:
Special Agent:
Robert Harrington
Peter Gerbino
New YorkResident Office (Region II):
NEIC Office of Criminal Investigations
New York Resident Office
c/o Office of Regional Counsel
EFA - legion II
26 Federal Plaza
New York, NY 10278
Resident Agent-in-Charge:
Special Agent:
William E. Graff
James O'Gara
ATLANTA AREA OFFICE (Regions IV and VI):
NEIC Office of Criminal Investigations
Atlanta Area Office
EPA - Region IV
345 Courtland Street, NE
Atlanta, GA 30365
Special Agent-in-Charge:
Special Agents:
David L. Riggs
Clayton Clark
Martin Wright
John West
FTS 597-1949
215/597-9814
FTS 597-1860
597-1795
597-0122
597-1599
FTS 861-6209
617/861-6700
FTS 264-8917
212/264-8917
FTS 257-4885
404/881-4885
FTS 257-4746
257-4747
257-4748
CWA Compliance/Enforcement
9-48
Guidance Manual 1985
-------
Chapter Nine
Exhibit 9-5
Dallas Resident Office (Region VI):
MIC Office of Criminal Investigations
Dallas Resident Office
EPA - Region VI
Earle Cabell Federal Building
Room 3A-8
Dallas, TX 75242
Resident Agent-In-Charge:
Special Agent:
Thomas Kohl
Stephen K. Wells
CHICAGO AREA OFFICE (Regions V and VII):
NEIC Office of Criminal Investigations
Chicago Area Office
EPA - Region V
230 South Dearborn Street
Chicago, IL 60604
Special Agent-in-Charge;
Special Agents;
Louis M. Halkias
Judy Vasey
Mike Konyu
Jim Swanson
Ken Wllk
Kansas City Resident Office (Region VII):
NEIC Office of Criminal Investigations
Kansas City Resident Office
c/o Office of Regional Counsel
EPA - Region VII
324 East llth Street
Kansas City, MO 64106
FTS 729-9306
729-9307
729-9321
214/767-9306
FTS 886-9872
312/886-9872
Resident Agent-in-Charge:
Special Agent:
Gregory T. Spaldlng
Bill Hare
FTS 758-2069
816/374-2069
CWA Compliance/Enforcement
9-49
Guidance Manual 1985
-------
Chapter Nine
Exhibit 9-5
SEATTLE AREA OFFICE (legions IX and X):
NIIC Office of Criminal Investigations
Seattle Area Office
EPA - Region X
1200 Sixth Avenue
Seattle, WA 98101
Special Agent-in-Charges
Special Agents:
Dixon E. McClary
Kenneth Purdy
Commodore Mann
Gerd Hattwig
San Francisco Resident Office (Region IX):
NEIC Office of Criminal Investigations
San Francisco Resident Office
EPA - Region IX
215 Fremont Street
San Francisco, CA 94105
Resident Agent-in-Charge:
Special Agent:
David Wilma
Sandra Smith
FTS 399-8306
206/442-8306
FTS 454-0509
415/974-0509
CWA Compliance/Enforcement
9-50
Guidance Manual 1985
-------
Chapter Nine Exhibit 9-6
Format for Criminal Case Referrals
ENVIRONMENTAL PROTECTION AGENCY
Of RCE OF ENFORCEMENT
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
SUI101NG S3 SOX 25337. DENVER FEDERAL CENTER
OINVM. COLORADO S033S
TO: SAC/RAC* ^ «« October 31, 1984
FSOM: James L. Prange
Assistant Direct
SUBJECT: Format for Criminal Case Referrals
Jaws L. Prange 4yn«^:_C__
Assistant DirectorCrlmirarT Investigations
1. FUOTDSE; This memorandum establishes policy and procedures in the
preparation and submission of a Criminal Case Referral within the
Office of Criminal Investigations, National Enforcement Investigations
Center, U.S. Environmental Protection Agency.
2. SCOPE; Ice provisions of this order apply to all legal and technical
employees involved in Che preparation of Criminal Case Referrals and
oo all snAoyeea of the Office of Criminal Investigations, National
Enforcement Investigations Center.
3- UTCBODOCTIOH: Effective imnediately the following policy and procedures
shall be used in the preparation and submission of Criminal Case
Referrals. These guidelines should be considered as reflecting the
mini mm standards necessary in the content of the report.
*• PBEPARAHON AND SUaflSSIOH: Criminal Case Referrals will be prepared
in every instance where investigation has disclosed substantial crimi-
nal violations of the federal environmental statutes and regulations,
including ancillary U.S. Code violations, which create a likelihood of
criminal prosecution. The timefrane for submission may vary, but in all
circumstances submission should be performed whenever a case is substan-
tially proven. This decision for submission should be made in close
coordination with the Department of Justice attorneys. Regional and
Headquarters legal staff, program technical staff, the responsible
CWA Compliance/Enforcement 9-51 Guidance Manual 1985
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Chapter Nine Exhibit 9-6
-2-
Speclal Agent in Charge of the Office of Criminal Investigations, and
Che Special Agent managing the investigation. The Special Agent managing
the investigation will be responsible for the preparation and submission
of the Criminal Case Referral in acceptable form.
In those criminal investigations not utilizing the services of an
Investigative Grand Jury, i.e., the agency will use the Grand Jury
or other court procedures merely to obtain an indictment or information,
the responsible Special Agent will submit a completed Criminal Case
Referral, in acceptable form, to the responsible Special Agent in Charge.
This submission will be done in sufficient time to allow formal internal
review and approval prior to submission to the Department of Justice and
the U.S. Attorney. This will ensure adequate agency review prior to
the commitment of further agency resources in the particular investiga-
tion. The final approval by the Special Agent in Charge shall provide
notice to the Special Agent that formal legal proceedings may begin.
5. PDaiAT OF A CRMHAL CASE REFE3BAL;
a. Title Pagg; The Title Page will be in the format as shown in
Attachment A.
b. Introduction and Signature Page: The Introduction and Signature Page
will be in the format as shown in Attachment B. It will contain
the following information:
(1) EPA criminal file number and NEIC project code.
(2) Federal judicial district by name and the corresponding
United States Attorney.
(3) Approval signatures by the Special Agent in Charge and the
Regional Counsel.
CWA Compliance/Enforcement 9-52 Guidance Manual 1985
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Chapter Nine Exhibit 9-6
-3-
(4) A brief introduction outlining the principal violations and
the suspect firms and/or individuals.
c. Table of Contents: Each Criminal Case Referral shall have a Table of
Contents that includes, at a iMpjinini, the following sections:
Section Page
I. Title Page
II. Introduction and Signature Page
III. Statutory and Regulatory Violations
IV. Personal History of Defendants
V. Enforcement and Regulatory History
VI. Description of Evidence
Appendix A. List of Witnesses
Appendix B. List of Exhibits
Appendix C. Exhibits
d. A discussion of die individual sections follows:
Section I - Title Page: See Attachment A.
Section II - Introduction and Signature: See Attachment B.
Example of Introduction:
This report is submitted in regard to alleged violations
of the United States Code by Richard Roe, John Doe, Mary Doe,
and others named as defendants or co-conspirators herein, in
that between January 16, 1983, and July 1, 1983, in Fulton
County, Northern Judicial District of Georgia, they did con-
spire to violate the enviroimental laws of the United States,
further, that on July 1, 1984. they did cause the illegal
disposal of a listed hazardous waste in Macon County, Middle
Judicial District of Georgia.
CWA Compliance/Enforcement 9-53 Guidance Manual 1985
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Chapter Nine Exhibit 9-6
Section II - Statutory and Regulatory Violations:
This section should contain the statutory and regulatory provisions
chat provide the basis for the Criminal Case Referral. Pertinent por-
tions of each statute or regulation should be quoted In full. If
different charges apply to different defendants, it should be noted.
Section III - Personal History of Defendants:
This section will be utilized to provide pertinent personal history
information on the subjects of the Criminal Case Referral. For
each individual, the following information should be included in the
order listed:
(1) Name.
(2) Title and business.
(3) Home address with zip code.
(4) Home phone.
(5) Work address with zip code (list all known company or
corporate affiliations).
For each corporate subject:
(1) Name of company and parent corporation, if appropriate.
(2) Complete address of company.
(3) Complete address of facility associated with offenses.
(4) State of incorporation of corporate subjects.
(5) Registered agent for service.
(6) A brief statement of the business, profits, and size of the
company.
CWA Compliance/Enforcement 9-54 Guidance Manual 1985
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Chapter Nine Exhibit 9-6
-5-
Section IV - Enforcement and Regulatory History:
This section should include a description of all known enforcement
activity, both state and federal, taken against the defendants in Che
past relating to environmental matters generally. In addition, the
writer should discuss any previous efforts by EPA or. state agencies
to remedy the problem through informal, administrative, or civil
means. Give only brief sunnaries.
Section V - Description of the Evidence:
This section includes a chronological narrative of all relevant
and material facts constituting the alleged criminal violations.
It may be that for several separate incidents the episodic
method nay be utilized. This section forms the factual basis for
criminal charges and should be defendant oriented, i.e., should
tell what the defendant(s) did or caused to be done whenever
possible.
Each specific fact contained in this report shall be referenced to
an exhibit or exhibits which substantiate the statement of fact.
Speculation will be avoided. This section will usually constitute
the major portion of the case report.
Appendix A - List of Witnesses:
This section is particularly useful to prosecutors supervising Che
case, and will frequently be used in issuing subpoenas, planning a
Grand Jury preseitation, and estimating the scope of Che prosecution.
For each witness, the writer should provide all available background
data (i.e., name, residence, work address, telephone numbers, etc.) and
a brief sunmary (one paragraph) of the matters on which testimony is
CWA Compliance/Enforcement 9-55 Guidance Manual 1985
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Chapter Nine Exhibit 9-6
-6-
anticipated. This section should include not only Che key substantive
witnesses, but also those who will establish Che appropriate foundation
for documentary or physical evidence (for example: photographers, chain
of custody witnesses, record custodians, etc.). Confidential informants
should not be identified in this list.
Apendices B. C - List of Exhibits and Exhibits;
Copies of every substantial piece of documentary evidence in the case
should be included as an exhibit to the report and should be indexed
to allow for easy reference in the main body of the report. Original
exhibits or documents should not be included in che case report.
Originals will normally be used as evidence in trial and should be
retained in che OCI Office until other arrangements are made with
the Justice Department prosecutor supervising Che case.
6. REVIEW AMD APPROVAL PROCESS; The responsible'Special Agent will submit Che
Criminal Case Referral in complete but rough draft form to che" Special Agent
in Charge (SAIC) in accordance with section entitled "Preparation and Sub-
mission" above. The SAIC will conduct a thorough review, and, after any
necessary corrections, the SAIC will approve che report for typing in the
initial final fora. The Special Agent and SAIC will review che Initial
final draft. If Chis is approved, the SAIC will arrange for Che report
co be forwarded, in a confidential manner, co che* Regional attorney
assigned to Che investigation. The Regional attorney may make a copy
of Che exhibits for future use and review Che concent of the report
for legal sufficiency, preparing any necessary reports chat might
supplement Che Criminal Case Referral. (See Section 8 below.) The
Special Agtsic should also assure chat che report is reviewed by
CWA Compliance/Enforcement 9-56 Guidance Manual 1985
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Chapter Nine Exhibit 9-6
-7-
•technical personnel assigned Co the investigation for technical
sufficiency. Approval by technical personnel shall also commit the
Agency to support for the case throughout the Judicial process. Any
corrections that are necessary will be made by die'Off ice of Regional
Counsel, the Criminal Case Referral will then be forwarded in a con-
fidential manner to the responsible Regional Counsel for approval.
This person shall note approval by affixing his/her signature in
the appropriate space on the Signature Page. The approved report
r
shall then be forwarded to the appropriate Special Agent in Charge.
The Special Agent in Charge shall again review the Criminal Case
Referral. Any further changes will be discussed with the Regional
Counsel or his designee sad/or the technical staff as appropriate.
Whai approved, the Special Agent in Charge shall affix his/her
signature in the appropriate space on the Signature Page. The
referral will then be forwarded to the'Crininal Enforcement Divi-
sion in EPA Headquarters for review and approval. After approval
by the Assistant Administrator for Enforcement and Compliance Monitor-
ing, the referral will be sent concurrently to the Environmental dimes
r *
Unit, Department of Justice, and to the appropriate U.S. Attorney's
Office. Section 7 describes the ultimate distribution of the referral
package.
7. DISTRIBUTION OF THE QUMIMAL CASE REEERRAL:
a. The original report with copies of exhibits 13 forwarded to the U.S.
Attorney of the principal judicial district. An additional copy or
copies may be provided to other U.S. Attorneys, if jurisdiction falls
in mare than one judicial district.
CWA Compliance/Enforcement 9-57 Guidance Manual 1985
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Chapter Nine Exhibit 9-6
-8-
b. One copy with exhibits should go to the OCX case file.
c. One copy with exhibits should go Co Che Criminal Enforcement Divi-
sion legal office in Headquarters.
d. One copy with exhibits should go to the Department of Justice, Environ-
mental Crimes Unit.
e. One copy without exhibits should go to the Regional Counsel.
f. One copy with exhibits should go to the Assistant Director, Criminal
Investigations, NEIC.
Original exhibits in EPA custody should be maintained in a secure
manner by the Special Agent/Case Agent until such tine as their
personal delivery to the court or prosecutor is arranged.
Nothing in this section shall preclude connunications between the
investigating officials, the U.S. Attorneys, the Department of
Justice, and Headquarters legal staff at any time. Such contact is
encouraged, particularly prior to the initiation of investigative
Grand Jury activities.
8. LEGAL ANALYSIS REPQKf: the Regional or Headquarters attorney
assigned to Che investigation may, as part of the review process,
prepare a legal analysis report which should be marked in capital
letters "PRIVILEGED - ATTOENK WORK PRODUCT." This report would
address the various legal issues involved in the particular investi-
gation, including strengths and weaknesses, legal defenses, evidenti-
ary challenges, and equitable defenses. 1C may also include a
proposed sample indictment, a listing of the eleoents of the various
offenses, parallel proceedings matters, and any other material
CWA Compliance/Enforcement 9-58 Guidance Manual 1985
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Chapter Nine Exhibit 9-6
-9-
counsel may feel would be useful In the prosecution of the criminal
matter. It should also include environmental impact information.
Distribution of this report should be made to the Regional Counsel
or his/her designee, Criminal Enforcement Division legal staff, Che
U.S. Attorney having jurisdiction, and the Department of Justice,
Environmental Crimes Unit. In addition, the Office of Criminal
Investigations should get a copy.
Attachments (2)
cc: Thomas P. Gallagher, Director
Carroll G. Hills, Chief, Enforcement Specialist
CWA Compliance/Enforcement 9-59 Guidance Manual 1985
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Chapter Nine
Exhibit 9-6
UNITED STATES ENVIRDNMEWBVL PROTECTION AGENCY
OFFICE OF ENFORCEMENT Am COMPLIANCE MONITORING
OFFICIAL USE ONLY
REPORT OF INVESTIGATION
FRED C. UI1L1AMS, dba
UNIVERSAL ENGINEERLNG
CASE t 84-XI-3-99 69W
AUGUST 1984
NATIONAL ENFORCEMENT INVESTIGATIONS CEOTER
OFFICE OF CRIMINAL INVESTIGATIONS
(OFFICE ADDRESS)
CWA Compliance/Enforcement
9-60
Guidance Manual 1985
-------
Chapter Nine
Exhibit 9-6
ATTACHMENT B
(APPROPRIATE AREA OFFICE}
( LETTERHEAD }
CRIMINAL FILE NUMBER;
PROJECT NUMBER:
REPORT EXAMINED, APPROVED,
AND RECOMMENDED FOR
PROSECUTION
(date here)
SPECIAL AGENT IN CHARGE
REGIONAL COUNSEL
Larry D. Thompson
United States Attorney
Northern District of Georgia
Richard B. Russell Building, Room 1800
75 Spring Street, S.W,
Atlanta, Georgia 30303
INTRODUCTION:
This report is submitted in regard to alleged violations of the
United States Code by Richard Roe, John Doe, Mary Doe, and others named
as defendants or co-conspirators herein, in that between January 16,
1983, and July 1, 1983, in Fulton County, Northern Judicial District of
Georgia, they did conspire to violate the environmental laws of the
United States; Further, that on July 1, 1983, they did cause the illegal
disposal of a listed hazardous waste in Macon County, Middle Judicial
District of Georgia.
CWA Compliance/Enforcement
9-61
Guidance Manual 1985
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Chapter Nine Exhibits
CWA Compliance/Enforcement 9-62 Guidance Manual 1985
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Chapter Ten
Enforcement of Consent Decrees
Chapter Contents Page
1 Introduction 10-1
2 Consent Decree Tracking and Monitoring 10-3
3 Consent Decree Enforcement 10-5
Factors To Weigh 10-5
Types of Enforcement Responses 10-9
4 Exhibits 10-17
10-1: Consent Decree Tracking Guidance 10-19
10-2: NEIC Consent Decree Tracking Guidance 10-26
10-3: Demand Letter for Stipulated Penalties (Reserved) 10-44
10-4: Motion To Enforce Decree 10-46
CWA Compliance/Enforcement 10-1 Guidance Manual 1985
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Chapter Ten Contents
CWA Compliance/Enforcement 10-ii Guidance Manual 1985
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Chapter Ten Introduction
• The government's interest In preserving the integrity of court
orders;
* Any mitigating factors; and
• The likelihood that the response will remedy the violation.
EPA can pursue a variety of responses to fit the seriousness of the vio-
lation* Often the consent decree provides a specific remedy in cases of
noncompliance, such as stipulated penalties. In some cases, it may call
for informal negotiation when disputes arise regarding compliance with the
decree. Other enforcement responses may include the following;
* Increased decree monitoring;
• Motions to enforce the decree;
• Contempt-of-court motions; and
* Contractor suspension and debarment (discussed in Chapter Six).
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Chapter Ten
2 Consent Decree Tracking and
Monitoring
To Implement a post-settlement enforcement program effectively, the Agency
must carefully track a violator's compliance with terms of a consent order
or consent decree. Such tracking ensures that all compliance milestones
are met and that any Instances of noncompllance are quickly identified.
EPA monitors compliance with consent decrees at two levels. At the first
level, legal and technical staff in the Regional Offices review reports
submitted by the discharger and may conduct inspections of the discharger
as needed to verify compliance with the decree for day-to-day management
purposes. The Regional Offices may also use either the automated tracking
capability of the Permit Compliance System (PCS) or the automated tracking
system developed by the National Enforcement Investigation Center (NEIC)
to track progress with specific milestones contained in a consent decree.
The Office of Enforcement and Compliance Monitoring (OECM) conducts the
second level of monitoring. The OECM reporting system is described in
detailed guidance issued on October 25, 1984 (Exhibit 10-1). Under this
system, OECM gathers information on consent decree compliance status from
the Regional Offices at the end of each fiscal quarter and summarizes the
information for inclusion in the Agency's Strategic Planning and Management
System (SPMS) quarterly report. OECM also prepares a report for the Deputy
Administrator that provides a name-by-name listing of active decrees along
with the current compliance status of each decree.
According to the October 25, 1984 guidance, the information requested by
OECM consists of a declaration by the Region as to the compliance status of
the decree. Where the decree is being violated, the Region must tell OECM
whether formal enforcement action to remedy the violation has been ini-
tiated. Under this tracking system, the only enforcement actions tracked
are referral of a contempt action, referral of a decree modification, or
collection of stipulated penalties.
Where the discharger is not meeting the final compliance limits or condi-
tions of the decree, the discharger shall be reported as in violation of
the decree. If the Regional Office has determined that the discharger will
be unable to meet the final terms of the decree, the Region will continue
to report the discharger in violation until one of the acceptable
enforcement actions listed above has been commenced.
CWA Compliance/Enforcement10-3Guidance Manual 1985
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Chapter Ten Consent Decree Tracking and Monitoring
Regardless of whether the Regional Offices use PCS or the NSIC system to
track consent decree progress, Regional Offices must continue to send hard
copies of all new decrees to NE1C for entry into the Consent Decree Library
and for entry into the automated summary library features of the current
system. Consent decree summaries include the decree dates and requirements
and indicate whether the requirements have been met. The NEIC tracking
system is contained as Exhibit 10-2.
the Regional Office must also ensure that, at a minimum, it receives notice
when penalties that are due under the decree have been paid and should
maintain records indicating penalty collection dates. The OECM Office of
Compliance Analysis and Program Operations (OCAPO) and the Associate
Enforcement Counsel for Water review the Regional Administrator's responses
pursuant to Headquarters' national oversight role.
Consent decree monitoring requires Agency determinations on whether Indi-
vidual consent decree requirements are being met. This involves examining
discharge monitoring reports on effluent limits and other reports required
by the decree to be kept, reviewing any water quality testing results, and
tracking compliance schedule deadlines. This effort Is supplemented by
on-site inspections of discharge sources performed by the Regional Office.
Pursuant to the Enforcement Management System (EMS) guidance, Regional
Offices must maintain records of their responses to consent decree
violations•
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Chapter Ten
3 Consent Decree Enforcement
Factors To Weigh
When the Agency determines that a defendant has not compiled with the terms
of the consent decree, the Agency must decide how it will enforce the terms
of the decree. The government has an interest in upholding the integrity
of court orders. As stated in the "Guidelines on Enforcing Federal Dis-
trict Court Orders," EPA must weigh several factors in deciding upon the
type and extent of relief to pursue:
• Environmental harm;
• Effect of delay on the final compliance schedule;
• The willfulness or negligence of the defendant;
• The deterrent effect of various enforcement responses;
• The economic benefit the defendant derives through continued
noncompliance;
• Any mitigating factors that may exist; and
• The goals that can be achieved through an enforcement action.
All Agency responses to noncompliance must require compliance with the
order's terms as quickly as possible.
EnvironmentalHarm
The effect of decree violations on water quality, as well as the goals of
the CWA, should weigh heavily in determining the appropriate enforcement
response. While some deadlines or schedules may be delayed without imme-
diate harm, frequently delays in complying with the effluent limitation
schedule will have important water quality or related environmental
impact. Violations of effluent limits, compliance schedule dates, or
reporting or recordkeeping may result in either a motion to enforce or a
motion for contempt.
CWA Compliance/Enforcement 10-5 Guidance Manual 1985
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Chapter Ten Consent Decree Enforcement
Schedule Violation
CWA consent decrees frequently set interim compliance schedules that
describe specific acts to be completed by a scheduled date. In many cases,
final compliance requires water pollution control equipment to be
purchased, installed, brought on line, and finally operated and maintained.
Decree compliance schedules are often quite detailed and are accompanied by
effluent limitation deadlines. For example, the decree in United States
v. City of Providence [492 F. Supp. 602 (D. Mass. 1979)], required the city
to repair and restore its water pollution control facility and equipment by
May 1, 1978, and to meet its effluent standards by June 1, 1978. In United
States v. City of Detroit [476 F. Supp. 512 (S.D. Mich. 1979)], the decree,
which was over 30 pages long, specified construction, financing, staff
training, facility planning, and effluent limitations and gave specific
dates for compliance in each area [476 F. Supp. at 516-517].
In reviewing a schedule violation, the Agency considers whether a particu-
lar preliminary delay of schedule will jeopardize the final date set for
compliance. Timely compliance with final effluent limitations is of para-
mount importance. For example, in the Detroit case, the city's failure to
hire adequate staff for its facility affected Detroit's ability to meet the
final compliance date required by the decree.
There are particular interim violations that cause EPA great concern, such
as when a facility does not place a purchase order for pollution control
equipment in time to have the equipment Installed and operating prior to
the final compliance date. Typically, a vendor requires a large down pay-
ment from the facility before delivering water pollution control equip-
ment. Should the facility refuse to take delivery, the down payment is
forfeited, and the facility is liable to the vendor for breach of con-
tract. Given the strong economic incentive for a facility to abide by the
purchase agreement, the timely placement of a purchase order may show the
facility's intention to comply with the rest of the schedule. Thus, where
construction or repair of a facility is required, as in City of Providence,
Agency staff should closely examine the construction schedule to determine
what steps in the schedule are critical to attainment of the overall goals
of the settlement.
Delay in commencement of construction is further cause for concern. A
construction delay may indicate that a purchase order, which had been
placed on time, may have been subsequently cancelled, thus jeopardizing the
final compliance date. When construction is not proceeding on schedule,
EPA should immediately investigate the reasons for the delay. Some reasons
for delay may include the following:
* The vendor of the equipment may have failed to deliver on time
(indicating that the defendant inadequately monitors contracts or
that the defendant may be reviewing compliance plans);
* The defendant may be planning to shut down the violating facility;
or
CWA Compliance/Enforcement 10-6 Guidance Manual 1985
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Chapter Ten Consent Decree Enforcement
* The defendant may be planning to use the pollution control
equipment at another site.
Normally, the government should avoid agreeing to extensions of compliance
schedules without pursuing significant monetary penalties. Extensions
without penalties typically should be limited to cases in which the defen-
dant can prove that the violation was caused by circumstances falling
squarely within the force majeure clause of the order. Any extension of a
court-ordered compliance schedule must receive the approval of the court.
Informal agreements not to abide by a consent decree's terms are against
Agency policy.
Willfulness and Negligence of theDefendant
Agency staff should also examine the conduct of the defendant in complying
with the decree. Agency staff should ask whether the defendant has:
• Placed prompt equipment orders;
* Reported progress to the Agency and the courts;
• Initiated personnel training;
» Expedited construction contracts;
• Notified EPA of problems with a vendor's delivery agreement;
• Requested EPA to observe the operation of new control equipment;
and
* Observed operation and maintenance requirements.
Because the defendant has signed a judicially enforceable agreement, he or
she cannot plead ignorance of its terms.
Applicability of Force Majeure Clauses
The Agency's consent decrees often include specific provisions exempting
the defendant from decree enforcement actions for noncompliance caused by
factors completely beyond the defendant's control. Such force majeure
clauses should be narrowly drafted. (See, General Enforcement Policy
Compendium #GM 17.) Where the cause of decree noncompliance Is outside the
force majeure clause, the liability of the defendant will be sufficient to
support a motion to enforce the decree. This remedy does not require the
conscious disregard of decree requirements; however, where such willfulness
does exist, the Agency also should seek to have the defendant held in
contempt. Indeed, where the conscious disregard of decree requirements
Includes making false statements to Agency staff who monitor decree compli-
ance, EPA may consider a separate criminal prosecution under Title 18 of
the U.S. Code. Such a prosecution was successfully pursued for false
statements made by defendants in implementing a consent decree under the
CWA Compliance/Enforcement 10-7 Guidance Manual 1985
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Chapter Ten Consent Decree Enforcement
CWA and the Toxic Substances Control Act in U.S. v. Transformer Services
(Ohio), Inc., et al. C 80-122-A (N.D. Ohio 1983). (A copy of the motion to
enforce the consent decree here is contained in Exhibit 10-4.)
Deterrence and Economic Benefit
The defendant may gain an increasing economic benefit, as well as a compet-
itive advantage, as a result of continued noncompliance. Consent decrees
should contain stipulated penalty provisions that clearly are capable not
only of recovering economic benefit, but imposing substantial additional
penalties in light of the defendant's recidivist nature. The government
must pursue these stipulated penalties aggressively in response to decree
violations.
In the absence of a stipulated penalty provision, the EPA staff still
should pursue money penalties substantially in excess of the defendant's
economic benefit from violating the court order. The penalty period is
measured from the date of the first provable violation to the date of
anticipated compliance. In addition to recouping economic benefit, the
government's request for a civil contempt penalty should reflect the
recalcitrant behavior of the defendant, his or her recidivist nature, and
the need to uphold the integrity of the judicial decrees, and should
specifically deter future violations. The civil contempt penalty should be
substantially higher than if it were a penalty for an initial violation.
Mitigating Factors
Mitigating factors do not excuse noncompliance. Instead, these factors
help to explain noncompliance and should be used to determine EPA's
enforcement response. The defendant may argue mitigating factors to per-
suade a court not to exercise its powers to enforce the terms of the
decree. A properly drafted force majeure clause can reduce the force of
these arguments. The following are some examples of mitigating factors;
• The sole vendor of che required control equipment goes out of busi-
ness unexpectedly;
• A union with a "no strike" contract violates the contract and calls
a strike;
• An economic downturn causes a prolonged shutdown of a facility with
little or no prospect of restart;
• A technology that had been successfully applied at one facility
fails to achieve the same success at another facility, notwith-
standing all good faith attempts to design, modify, and operate the
equipment in a manner consistent with good pollution control
practices; or
CWA Compliance/Enforcement 10-8 Guidance Manual 1985
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Chapter Ten Consent Decree Enforcement
* An action (or lack of action) by the government that Interferes
with a defendant's ability to comply with the decree's
requirements.
The Agency should place the burden of identifying mitigating factors on the
defendant as early as possible, typically by notifying the defendant of its
noncompliance with a decree requirement and requiring an explanation.
Goal-Oriented Action
Finally, the decision to take enforcement action should be based upon
overall goals of achieving compliance and establishing deterrence. For
example, a large corporation may willingly pay a penalty or fine as the
"price of polluting," but continue its noncompliance. In such cases, EPA
should consider a contempt of court petition and a motion to terminate or
amend the consent decree. Another defendant may be sufficiently deterred
by a civil penalty. For the former, a motion to enforce may be appro-
priate; for the latter, EPA should seek payment of stipulated penalties.
Types of Enforcement Responses
Adequate enforcement of the terms of a decree quickly corrects the viola-
tion, deters future violation (by defendant or others), and preserves the
integrity of court-ordered remedies.
As provided in the October 25, 1984 policy on Consent Decree Tracking
(Exhibit 10-1), some violations may be dealt with by the collection of
stipulated penalties and a bilateral revision to the order, such as requir-
ing increased monitoring. More serious violations may be grounds for
collecting stipulated penalties and filing a motion to enforce the order or
moving for a contempt of court ruling. Whatever response is appropriate,
It la critically Important to respond promptly to prevent the order from
becoming a fiction (as is also in the case where EPA informally agrees to
accept less than full compliance with the terms of a consent decree).
The nature of the defendant in an enforcement action may also affect the
choice of response. Some courts have shown some reluctance to require a
city or municipality to pay substantial monetary penalties. [See City of
Providence, cited previously, at 610, quoting Shakman v. DemocraticOr-
ganization of Cook Co., 533 F. 2d 344, 352 (7th Cir. 1976).} Remedies
other than monetary penalties, such as holding municipal officials in
contempt, can be effective where the defendant is a city or local govern-
ment. Under some circumstances, however, monetary fines against a munici-
pality may well be justified. Where the defendant is a private party, the
Agency does not hesitate to seek civil penalties for violations. [See
e.g., United States v. Homestake Mining Co., 595 F. 2d 421, 425 (8th Cir.
1979). Agency first sought CWA penalties before stipulated penalties in
decree.]
CWACompliance/Enforcement 10-9 Guidance Manual 1985
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Chapter Ten Consent Decree Enforcement
Increased Monitoring
Where EPA suspects relatively small or minor decree violations, the appro-
priate initial response may be increased Agency monitoring of the
defendant's activities. Increased monitoring requirements may be imposed
through a revised consent decree that sets new, achievable milestones in
conjunction with collecting penalties for violations of the original
decree.
For example, if EPA suspects the defendant violated operation and main-
tenance recordkeeping requirements, the Agency could request or inspect
those records at unannounced intervals. (An unannounced inspection is more
likely to reveal actual conditions.) A Section 308 letter requiring
records of operation and maintenance practices for the past month (or
quarter) may also provide an accurate picture of day-to-day operations, as
well as serve to deter future noncompliance. The Agency should consider
further enforcement where the defendant violated the terms of the decree.
An EPA "paper trail" of correspondence (pressing for compliance) with the
defendant helps to substantiate the defendant's contempt of the consent
decree.
Enforcement of Stipulated Penalties
The Agency should enforce any stipulated contempt penalty provisions that
were incorporated into the decree. Although this sanction is within the
court's equitable powers, the fact of stipulation should weigh heavily in
the government's favor, particularly if the agreed-upon sum is not unduly
oppressive. Consequently, stipulated penalty amounts should be realis-
tically drawn, although larger on a daily basis than civil penalties that
the government typically might seek in settlement. Application of the
stipulated penalty provision should be speedy to avoid an oppressive
penalty request. Such requests are candidates for direct referrals.
Stipulated penalties should be used when available to the government, and
payable to the Treasury without use of a demand letter.
The stipulated penalties in the City of Providence decree provided for the
City of Providence to pay a civil penalty of $2,500 for each day that it
was in violation of any requirement of the consent decree. The penalty was
to be paid to the Treasurer of the United States within 14 days of a demand
for payment by the United States [City of Providence, 492 F. Supp. at
607-608].
In obtaining stipulated penalties upon demand, the government sends a
demand letter (certified mail, return receipt requested) to the defendant,
signed by the Assistant Attorney General of the Lands and Natural Resources
Division, stating the dates and nature of the decree violations and
demanding payment to the U.S. Treasury. The letter also requests the check
to be delivered to the United States Attorney for the district in which the
decree was entered or to the Department of Justice, Land and Natural
Resources Division, in Washington, D.C. The letter should recite the
applicable provision authorizing the demand, the applicable provision that
CWA Compliance/Enforcement10-10Guidance Manual 1985
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Chapter Ten Consent Decree Enforcement
has been violated, and the time period that the demand covers. Exhibit
10-3 contains a sample demand letter (currently reserved).
Ho legal defense is available to a defendant in response to a demand letter
other than the argument that the violation itself did not occur. A defen-
dant may, however, seek to advance equitable arguments to convince the
court to mitigate the penalty.
A better approach, also commonly employed, does not require a government
demand letter, but makes payment to the U.S. Treasury obligatory upon the
violation of a decree. Under this approach, the following language should
be used:
Defendant shall pay to the United States the following
stipulated penalties for violations of this decree;
(1) [Paragraph 1 enumerates stipulated penalties.]
(2) Payment shall be made by certified check drawn to
the order of "Treasurer, United States of America"
and tendered to the United States Attorney, District
of , [address], within 30 days of each
violation. Upon failure to pay, Plaintiff shall be
entitled to Judgment against Defendant in such
amounts, plus all costs and attorneys' fees
associated with collection.
Note that many court orders provide that any stipulated penalties accrued
for delay in scheduled increments of progress will be voided if final
compliance is achieved on schedule. Thus, if it appears that a lapse in
the schedule will not jeopardize timely final compliance, and there is no
other apparent reason to suspect that the delay is indicative of a pattern
of noncompliance, it may not be appropriate to demand stipulated penal-
ties. For this reason, this type of consent agreement should be avoided in
the future.
Motion To Enforce the Decree
The Agency may seek specific performance of a decree's requirements by
using a motion to enforce judgment pursuant to Rule 70 of the Federal Rules
of Civil Procedure. A Rule 70 motion often includes a motion to show cause
why the defendant should not be held in contempt. An example of such a
motion, filed in U.S. v. Transformer Services (Ohio), Inc., is included as
Exhibit 10-4. Rule 70 applies where a judgment (Rule 54 defines a decree
or order as a judgment) directs a party to perform a specific act within a
specified time.
The filing of discovery requests may be necessary prior to filing a motion
to enforce a decree. While violations of effluent limitations can be
supported with discharge monitoring reports, consent decrees may require,
for example, that certain operation and maintenance practices be undertaken
at regular Intervals. The extent of violations of these requirements can
often be established only through discovery, such as through the deposition
CWA Compliance/Enforcement 10-11 Guidance Manual 1985
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Chapter Ten Consent Decree Enforcement
of a plant manager. Refer again to Exhibit 8-8, which contains a sample
set of interrogatories.
The motion should assert that the defendant has failed to comply with some
provision of the order (e.j|., the compliance schedule or operation and
maintenance requirements) and that the court order in no way excuses non-
compliance. The motion should also request that the court compel the
violator to pay any accrued stipulated penalties. A referral to DOJ to
collect stipulated penalties from industrial dischargers under consent
decrees can qualify as a direct referral.
In this motion, the Agency may also move to have further requirements
placed upon the defendant. In City of Detroit, cited previously, the
Agency moved that the defendant show cause why it should not be compelled
to comply with the effluent limitations established in the decree. The
motion further sought an order requiring Detroit to report effluent limit
violations to the court, the EPA, and the State of Michigan within 24 hours
of violation and to submit a written compliance plan and weekly status
reports on the defendant's compliance progress* Such motions may also seek
more stringent reporting requirements, advance Agency approval for defen-
dant activities, temporary or permanent shut down of violating facilities
or parts of such facilities, more stringent operation and maintenance obli-
gations, or letters of credit or performance bonds. This motion to request
modification of a consent decree is not a direct referral candidate.
To develop the motion, the Regional Office prepares a litigation report and
follows the referral procedures discussed in Chapter Eight. The standard
of proof for a motion to enforce the court order is the same as for the
underlying complaint (£.£., the government must prove each element of the
allegation "by a preponderance of the evidence").
The defendant must answer the motion within 20 days. The answer may admit
or deny the allegations, or admit the allegations with some explanation or
defense. For example, the defendant may admit the violation, but argue
that the force majeure clause excuses the noncompliance.
The defendant may also invoke Federal Rules of Civil Procedure (Fed. R.
Civ. P.) 60 and 62 in response to the Agency's motion to enforce the
decree. Rule 60 provides that a party may seek relief from a judgment or
order for the following reasons:
* Clerical mistakes;
• Mistake, Inadvertence, surprise, or excusable neglect;
• Newly discovered evidence;
* Fraud, misrepresentation, or other misconduct of an adverse party;
• The judgment is void;
CWA Compliance/Enforcement 10-12 Guidance Manual 1985
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Chapter Ten Consent Decree Enforcement
• The judgment has been satisfied, released, discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application; and
• Any other reason justifying relief from the operation of the
judgment.
Under Fed. R. Civ. P. 62, the defendant may seek to stay the Agency's
enforcement proceeding on the grounds that it has filed one of the
following:
• A motion for a new trial or to amend a judgment; or
• a motion for relief from a judgment.
In City of Providence, cited previously (at 604), the city initially moved
the court to provide relief from a CWA judgment. The court found the city
was not entitled to relief and rejected its claim of impossibility.
Contempt of Court Motions; Civil and Criminal
For the most serious violations of a court decree, the Agency may also move
that the defendant be adjudged in contempt of the decree or order under
Fed. R. Civ. P. 70. A contempt motion (technically styled as a motion to
show cause why defendant should not be held in contempt) requests the court
to use its inherent authority to ensure that its orders are obeyed. Con-
tempt motions generally accompany motions to enforce the decree. The
government must prove each element of a civil contempt action by "clear and
convincing evidence." Since this is a difficult burden of proof to main-
tain, the motion is reserved for not only the most serious consent decree
violations but also ones for which EPA has substantial proof.
The standard for granting a motion for civil contempt is stated in City of
Providence, cited previously (at 609). The court found the city failed to
comply with the terms of the decree and provided no justifiable excuse for
its failure; therefore, the city was in contempt of the court's decree.
The defendant must respond to a contempt motion within 20 days. The
defendant may file a motion under Fed. R. Civ. P. 60 for relief from the
consent decree. The defendant may also raise equitable defenses such as
"estoppel," "laches," and "unclean hands" in an attempt to place
responsibility for noncorapliance on the government.
Other defenses may include the following:
• Claims of financial impossibility or financial inability;
• Failure of EPA to respond to reasonable requests for modification
of the decree;
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Chapter Ten Consent Decree Enforcement
• Failure of the pollution control techniques to accomplish required
effluent reductions despite all good faith efforts to operate the
equipment;
* !PA acquiescence in a control technique that subsequently failed;
• Interference with compliance efforts by third parties (such as a
labor union or equipment vendor); and
• Force majeure*
EPA should oppose all of these arguments.
Where the court finds the defendant in contempt, the court will probably
order a new schedule based on EPA estimates of expeditious compliance. The
court will also order the defendant to pay any stipulated penalties already
accrued and may order periodic payments of any prospective stipulated pen-
alties (sometimes into an escrow account) until compliance is achieved.
The court may also find, either upon motion by EPA under 18 U.S.C. §401(3)
or on its own motion, that the defendant willfully and Intentionally ig-
nored the court's order, amounting to criminal contempt. In such a case,
the court may order a jail sentence and the payment of monetary penalties
aimed at punishing the defendant. The defendant's behavior must be willful
and intentional "beyond a reasonable doubt" to constitute criminal
behavior.
Factors to examine in determining the propriety of a criminal contempt
action include the following:
* Scope and duration of the violation;
• Environmental contamination or health hazard;
* Willfulness of the violation;
• Any falsification or misrepresentation by the defendant;
• Ability of the defendant to comply with the terms of the decree;
and
• Evidence of motive for the violation.
The motion for contempt should clearly state whether it is for civil or
criminal contempt. EPA should request a hearing on the motion and the
allegations should be supported with affidavits and other appropriate docu-
mentation. In addition, EPA should submit an order for the judge to sign
and a memorandum of law supporting the ruling, which help to ensure that
the judge is properly Informed of EPA's position.
The defendant's response to a contempt motion may Include use of Fed. R.
Civ. P. 60 and an array of equitable defenses. Many of the available equi-
table defenses were argued in City of Providence. Providence argued that
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Chapter Ten Consent Decree Enforcement
It had been unavoidably delayed because of time spent obtaining a permit
from the state, that it could not abate the pollution because of the high
cost of doing so, that it was delayed by labor problems and sabotage, and
that the terms of the decree were impossible to meet. The court rejected
all of these defenses 1492 F. Supp. at 609]. In United States v. Homestake
Mining Co., the lower court granted a private company relief from judgment
under Fed. R. Civ. P. 60(6) because of "mechanical problems, weather prob-
lems and strikes by various workers" [595 F. 2d at 426-427 (reversing the
opinion of the lower court)].
The defendant's responses in Providence and Homestake Mining were similar
because they Involved causes claimed to be outside of the defendant's con-
trol that rendered the defendant unable to comply with the decree. These
include natural disasters, acts of God, conflicts with other government
requirements, labor disputes, vandalism, or unanticipated changes of condi-
tions or circumstances.
Other Remedies; Receivership and Masters
The court has a broad range of equitable remedies to enforce its decrees*
The Detroit case noted that the remedies of contempt proceedings and
injunctions may only have invited further confrontation and delay. There-
fore, the court turned to the less common remedy of a receivership [476 F.
Supp. at 520]. The court appointed the mayor of Detroit to act as receiver
or administrator of the wastewater disposal plant for not less than one
year. The Providence court, however, rejected motions for appointment of a
receiver or a master [492 F. Supp. at 610-611]. The court found the city
should continue to manage the facility and that a master was not needed to
make any factual findings. Note that appointing a receiver may result in a
great expenditure of governmental resources to oversee the receivership.
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Chapter Ten Consent Decree Enforcement
CWA Compliance/Enforcement 10-16 Guidance Manual 1985
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Chapter Ten
4 Exhibits
This section contains the following exhibits:
Exhibit 10-1: Consent Decree Tracking Guidance
Exhibit 10-2: NEIC Consent Decree Tracking Guidance
Exhibit 10-3: Demand Letter for Stipulated Penalties (Reserved)
Exhibit 10-4: Motion To Enforce Decree
CWA Compliance/Enforcment 10-L7 Guidance Manual 1985
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Chapter Ten Exhibits
CWA Compliance/Enforcement 10-18 Guidance Manual 1985
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Chapter Ten Exhibit 10-1
Consent Decree Tracking Guidance
'. AGENCY
251984
MEMORANDUM
SUBJECT! Consent Decree tracking J .
FROM: Courtney M. Priee\_,**«*'<"">
Assistant Administrator for Enforcement and
Compliance Monitoring
TO: Regional Enforcement Contacts
In my September 27, 1984, memorandum to you on consent
decree tracking I requested comments on the reporting guidance
developed by the consent decree tracking workgroup, we have
found your comments to be most useful and I want to thank you
for your assistance in this important endeavor.
A clear consensus as to which reporting option should be
used was not reached via the comments we received. However
I believe either option will enable us to dramatically improve
our understanding of consent decree compliance status, and
that over time both will serve our needs well. We have
chosen to go with Option A as described in the attachment to
the September 27 memorandum with a few adjustments that""
reflect the comments we received. Attachment 1 contains 'the
description of the approach we will use.
Persuasive arguments were made for choosing Option B on
the basis of its more explicit initial focus on results.
However, I am convinced that after we get past the first
quarter Option A will be able to track results just as well,
and the data that the Regions will report will be more current.
Under Option B, it is possible that a decree violation could
go unreported for nearly 2 quarters.
I understand from my staff that Option B is more compatible
with the Quarterly Noncompliance Reports (QKCR's) used by the
water program. The Regions should use the most current data
available when reporting on the compliance status of Water
program consent decrees. If the most current information
available is that obtained from the QNCR's, that is the
information that should be reported.
CWA Compliance/Enforcement 10-19 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-1
Attachment 1
I. What constitutes a reportable violation?
For the purposes 'of reporting a decree will be reported
as in violation if any term or condition of the decree is not
complied with. De Minimis violations of, for example, reporting
requirements, are factored out by the timing of reporting.
II. What will be reported and what time frames will be used
for reporting?
All reporting will be done on a name basis. OECM will
summarize the data and report aggregated numbers Cor each
reporting category in the quarterly Strategic Planning and
Management System (SPMS) report. Although the reports to
OECM will not specify the nature of the violation, it is
advisable that each Region have a readily available summary
of the nature of the reported violations to facilitate responses
to requests that we may receive from Congress or other
interested parties.
The Regions will report on November 3, 1984, (and
henceforth by the 15th day after the close of each fiscal
quarter) on the following measures using the best available/most
current information (it is recognized most information would
be current as of the last round of quarterly reports - here
October 1, but that some data lag may exist) on consent
decree compliance status as of October 1, 1984.
(a) the names and number of active consent decrees as
Of 10/1/34.
(b) the names and number of active consent decrees in
violation as of 10/1/84.
(c) the names and number of active consent decrees in
violation as of 10/1/84, where enforcement action
has been commenced (see section III for the list of
appropriate enforcement actions) .
*(d) _the names and number of active consent decrees
reported in violation at the end of the previous
quarter which have been returned to compliance.
For the test run, reporting categories d t e will not be
used.These categories will be reported on for the
first quarter FY85 SPMS report in January.
CWA Compliance/Enforcement 10-21 Guidance Manual 1985
-------
Chapter Tea Exhibit 10-1
-2-
•(«) the names and number of active consent decrees
reported in violation at the end of the previous
quarter which have not been returned to compliance
and have not had an appropriate enforcement action
commenced.
III. what constitutes an appropriate enforcement action?
Appropriate enforcement actions are formal enforcement
actions which include contempt actions, collection of penalties,
and decree modifications. These actions will be counted in
the enforcement action commenced category when they are
referred by the Regions to Headquarters or directly to the
Department Of Justice. I,egg formal ae»|f|r»g -fif1! •" *»•"»"*
letters, formal warning_letters, etc., are not included in
1EBe LiSl fl't._.appropria'ce*actibhs. ' A pending violation means^
that no action has been taken or chat the violation is in the
first stages of being addressed (e.g. the source was sent a
demand letter),
IV. Final CoaplianeeDeterminations
In cases where the final compliance date in the decree
has been reached and the source is not meeting the final
compliance limits or conditions of the decree, the decree shall
be reported as in violation. If the Regional Office has
determined that the source will be unable to meet the final
terms of the decree, the Region will continue to report the
decree in violation until one of the acceptable enforcement
actions listed in section III above has been commenced. At
the time that such action is commenced, the decree will be
reported as in violation/action commenced under category (c)
(Section II) until it is returned to compliance with the
decree.
V. How will consent decrees covering multiple facilities be
counted?
Actions taken to address violations at more than one
facility covered by the same decree will only be reported and
counted as one decree. The Regional actions against multiple
facilities covered by the same decree will be accounted for
in the significant noncomplier lists and the enforcement
actions tracked in the f¥85 SPMS.
CWA Compliance/Enforcement 10-22 Guidance Manual 1985
-------
Chapter Ten Exhibit IO-I
-3-
VI. What Is the rola of the Policy and Management Divisions?
In the August 15, 1984, memorandum, Al Aim encouraged
the Regional Administrators to have consent decree compliance
information reported through the Policy and Management Divisions
in each Region. He left open the option for each Regional
Office to establish whatever reporting mechanism best suited
their needs. This recommendation was not intended to place
the PSMD's in charge of the consent decree enforcement program.
The August IS, 1984, memorandum did not contemplate any
changes in responsibility Cor enforcement of consent decrees.
VII. How will reporting take place?
the Regions will send their consent decree compliance
status reports directly to OECH's Compliance Evaluation Branch
by the 15th day after the end of the each fiscal quarter.
OECH/CEB will prepare a summary report and forward the report
for inclusion in the quarterly SPMS report. As with other
SPMS measures, OECH/CEB will confirm the information contained
in the report with the Regions prior to finalization of the
quarterly SPMS report.
CWA Compliance/Enforcement 10-23 Guidance Manual 1985
-------
If!
3
ATTACHMENT 2
Regional Summary
(a) The number of active consent decrees as of 10/1/84 »
(c)
o
8
•8
•H
3
(b) The number of active consent decreus in violation as ot 10/1/84
The number ot active consent decrees in violation as ot 10/1/84,
where entorcemunt action ha8 been commenced » _
*(d) The number ot active consent decrees reported in violation at the
end ot the previous quarter which have been returned to compliance
Me) The number of active consent decrees reported in violation at the
end of the previous quarter which have not been returned to
compliance and have not had an appropriate untorceraant action
commenced **
tM
O
* foe the teat run, reporting categories die Mill not be used.
These categories will be reportec
SPMS report in January.
instructional
on for the tirst quarter t*Y 85
a
-------
Name of decree
Statute
In
Violation
-2-
C
In Violation
With Action
Crane need
»D
Violation cran
Prior Qtr. Hatumed
to Compliance
(U
T3
rt
n>
H
ID
O
Violation iron
Prior Qcr. Not *et
Addressed
1.
2.
3.
4.
S.
6.
ETC.
For the test run, reporting categories d S « will not be used.
will be reporUjd on Cor tins tirst quarter
these categories
«5 SPHH report in January.
Instructlona
a List the nana of the decree, the applicable statute, and check either column b (in violation) or
c (in violation wltn appropriate action comtenced) 1C tne decree is in violation. Ma will
assure Uiat the ix-cree is in contjliance it noither column is checked.
0 The decree spec!tic data on this chart should retlect tno sunnary nutters presented on the
previous i>ago.
i
o*
-------
Chapter Ten Exhibit 10-2
NEIC Consent Decree Tracking Guidance
CONSENT DECREE TRACKING SYSTEM GUIDANCE
EPA GENERAL ENFORCEMENT POLICY I GM - 19
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
EPfECTlVE BATE! DEC 20 883
CWA Compliance/Enforcement 10-26 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
TABLE OP CONTEMTS
PAGE
INTRODUCTION 1
Scope and Exclusions 2
TRACKING SYSTEM 4
Tracking System Objectives 4
Kay Track ing System Components 4
1. The Repository S
2. The Consent Decree Library...,.*. 5
3. Compliance Monitoring......... 6
4. Compliance Tracking 7
Tracking System Operation. 8
OFFICE RESPOHSIBIUTIBS. 10
1. National Enforcement Investigations Center....... 11
2. Regional Administrator's Office 12
3. OfSic* of Enforcement and Compliance Monitoring.. 13
CWA Compliance/Enforcement 10-27 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-2-
Until recently, EPA had no uniform automated Information
system intended primarily for consent decree compliance
tracking. Some Agency offices do us* automated information
systems to track source coapliance generally. However, the
us* of these systems varies throughout the Agency, making it
difficult to integrate compliance data. Moreover, sons*
offices track consent decree compliance by hand, resulting
in lengthy information retrieval times.
On August 4, 1982, EPA managers net to discuss establishing
a uniform national approach to consent decree compliance
tracking which incorporates the use of an automated information
system intended primarily for tracking consent decree
coapliance. They agreed that this tracking system should
build upon, rather than replace, existing information systems
maintained by various Agency enforcement offices.
Subsequent to that meeting, the National Enforcement
Investigations Center (NEIC), working closely with the Office
of Legal and Enforcement Policy (OLEP), developed ideas for
such a tracking system. This document describes the proposed
tracking system and Agency office roles in Implementing and
maintaining it.
Scopeand Exclusions
This tracking system will include information on all
court entered judicial consent decrees In enforcement cases to
CWA Compliance/Enforcement 10-29 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-3-
whlch EPA ia a party, as veil as the status of compliance
•fforta required by these decrees. It will not includei
• State eonaentdecroea to which EPA ia not a party.
mi* include* Cases in which EPA say have a
continuing intareat in tJi* compliance status of
the decree even though, for example, EPA originally
deferred the underlying enforcement action to
appropriate Stata authorities. This topic will be
discussed generally in guidance entitled,
'Coordinating federal and State Enforcement Actions".
• Federal facilities Compliance Agreements. These
agreements are negotiated with Federal facilitie*
to bring Chen into compliance with applicable
environmental statutes. Executive Order 12038
provides a non-judicial aechanian for negotiating
these agreements. Within EPA, the Office of
Federal Activities (OPA) has the lead responsibility
Cor tracking compliance with these compliance
agreements. OPA is developing guidance on this
area entitled, "rederal Facilities Compliance
Program - Resolution of Compliance Problems".
Also, considerations in selecting an appropriate enforcement
response to a consent decree violation are discussed generally
in forthcoming guidance entitled, "Enforcing Consent Decree
Requirements*.
CWA Compliance/Enforcement 10-30 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
.4-
TSACXING SYSTEM
Tracking System Objectives
This uniform national approach to consent decree compliance
tracking seeks to achieve the following objactivasi
* Facilitate consent decree enforcement by uniformly
Cracking the compliance status of all EPA consent
decrees.
* Keep senior Agency managemement informed of the
compliance status of all EPA consent decrees.
* Provide timely, accurate information upon request
• to Congress and the public concerning the compliance
status of EPA consent decrees.
Kay Tracking System Components
To achieve (has* objectives, the tracking system relias
on four key components:
1. The Repository
2* The Consent Decree Library
3. Compliance Monitoring
4. Compliance tracking
These components are described below.
CWA Compliance/Enforcement 10-31 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-5-
Repository
• The Repository la a collection of physical copiea of over
429 EPA consent decrees NEIC haa on file. HBIC assembled
thta collection with til* assistance of the Regional Offices, tho
Department of Justice (OOJ)r and tti* Federal Courts. NBIC
ia continuing ita efforts to complete the collection of consent
decrees to b« filed in the Repository. To facilitate this
effort* the Regional Counsels should forward copies of all
new consent decrees to HE 1C for inclusion in the Repository.
MEIC maintains the Repository and, upon request, can
provide a copy of any EPA consent decree on file to requesting
Agency offices,
2. The Consent Decree Library
MB1C developed, and will maintain, the consent decree
library as an automated management information system to
store summaries of each EPA consent decree on file in the
Repository. Each consent decree summary will include the
following informationt
* Case nan*.
* Date the consent decree was entered and, if
applicable, the date the decrao was modif led.
* Consent decree requirements, including due dates.
* Information indicating when these requirements
were not.
CWA Corapliance/Eoforcemenc 10-32 Guidance Manual 1985
-------
Chapter Ten tehibit
NEIC will develop these summaries and sand Chen to the Regional
Counsels' Offices to review and confirm their accuracy, file
information in the library can be updated by NEIC, baaed upon
information sent to NEIC by the Office of Enforcement and
Compliance Monitoring (OECN), to reflect the current compliance
status of SPA consent decrees.
The library contains summaries of most EPA consent
decrees on file. Computer terminals will link EPA Head-
quarters and the Regional Offices electronically with the
library. NEIC will provide OEQI and Regional Office personnel
training on how to use the library.
Direct access to the library will provide the Agency's
attorneys and enforcement staff with information on active
or terminated consent decrees which nay be useful in drafting
and negotiating new consent decrees. Direct access to the
library will also provide Regional managers with information
on upcoming requirements which may be useful in targeting
source inspections and in projecting resource needs.
3« Compliance Monitoring
Consent decree compliance monitoring is presently
conducted to determine whether individual consent decree
requirements are properly met. Compliance monitoring activities
often include source reporting and on-site inspections.
CWA Compliance/Enforcement 10-33 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-7-
Onder the national consent decree tracking system, the
Regional Program Offleas ar* primarily responsible for con-
ducting monitoring activities in accordance with national
guidance issued by EPA Headquarters. The Regional Program
Offices will continue to conduce compliance monitoring using
whatever automated information system (e.g., PCS-for Hater
Enforcement) they choose to use to assist them in their
monitoring efforts.
4. Compliance Tracking
Compliance tracking is the gathering and compiling of
eoapliance information which Agency management can use to
determine and asses* general trends in the Agency's consent
decree enforcement efforts. Compliance tracking will be
based upon the information gathered by the Regional Program
Offices in the course of conducting their compliance monitoring
activities.
OECM is responsible for tracking EPA's enforcement efforts
on a national level, including whether the Agency is meeting its
legal responsibility to the Courts for ensuring that consent
decree requirements are met. Consequently, OECM will be
principally responsible for compliance tracking, through use
of the automated Consent Decree Library operated by NEIC, to
ensure that Agency consent decree enforcement efforts are
adequate.
CWA Compliance/Enforcement 10-34 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-8-
To facilitate OECM complianca tracking activities,
Tbe Office of Management Operations (OKO) will send each
Regional Administrator periodic information requests concerning
the compliance status of each consent decree in the Region.
That* information requests will serve as a tool to ensure
that Regional Offices focus on source compliance with individual
milestones in each consent decree.
Tracking System Operation
The operation of the tracking system will draw from the
information stored in the consent decree library. At the
beginning of each quarter, OHO will send to each Regional
Administrator two computer print-outs (see attachments)
containing consent decree information from the consent decree
library. The computer print-outs will listi
a. All consent decree milestones in each Region
which are scheduled to come due during the
present quarter (prospective).
a. All consent decree milestones in each Region
Cor which the Region was responsible for
ensuring compliance during the preceding
quarter (ret rospecti ve).
CWA Compliance/Enforcement 10-35 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-S-
The prospective print-out is intended as a tool for use
by the Regional and OBCM management generally. It nay b«
uaed, toe example, as an alert-device to assist each Regional
Administrator in advance preparations Cor ensuring that
consent decree nilestones coning due during the quarter are
net properly.
The retrospective print-out will contain instructions
asking each Regional Administrator to respond to OHO, within
ten working days of the transaission date of the print-out,
with the following suraary informations
* Whether each consent decree nilestone which came
due. during the precading quarter was achieved.
* The consent decre* •ilestones which were noc
in compliance.
* Whether any consent decree milestones were
renegotiated.
* If any nilestone is not achieved or renegotiated,
the enforcement response the Region intends to
take to ensure that the nilastone is achieved.
The Associate Enforcement Counsels in OECM will review
the information provided by the Regional Administrator £or
use in tracking the Agency's overall consent decree enforce-
ment efforts. OHO will send the raw data to NEIC to be
used to update the information in the consent decree library.
CWA Compliance/Enforcement LO-36 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-10-
It will be Important for the Regional Administrator to
make sure that the response in properly coordinated between
the various offices in the Region (e.g., tho Regional
Program Offices and the Regional Counsels' Offices). This
will better ensure that the Information in the tracking system
is accurate and complete.
Office RESPONSIBILITIES
Three Agency components will share responsibilities in
implementing and maintaining the consent decree tracking
ayaten. These three offices arei
1. N8IC
2. Regional Adainistrators
3. OBCM Headquarters
The respective'responsibilities of these offices are specified
below.
CWA Compliance/Enforcement 10-37 Guidance Manual 1985
-------
Chapter Tea Exhibit 10-2
-11-
1. NEIC
NEIC's responsibilities generally will involve the
start-up operations and the maintenance of tha Repository and
the Consent Decree Library. This will includo th* followings
* Completing th* collection of physical copies of
EPA consent decrees to be filed in the Repository.
• Maintaining the Repository and making available to
Agency personnel upon request copies of consent
decrees filed in the Repository.
* Bnsuring that suoaarias of all EPA consent decrees
filed in Che Repository are fed into the Consent
Decree Library, NEIC will send copies of the
sumaries to the Regional Counsels* Offices for
review to ensure the accuracy of the summaries.
• * Maintaining the Consent Decree Library and ensuring
the smooth technical operation of the library.
* Providing OECM and Regional Office personnel with
training on how to use the library and establishing
a contact point in NEIC to respond to Agency
inquiries on proper library use.
• Updating the Consent Decree Library with compliance
information aent to H1IC quarterly by OHO.
CWA Compliance/Enforcement 10-38 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-12-
2, Regional Administrators
the JUgtonal Administrators arc ultimately responsible
for keeping informed of the compliance status of the consent
decrees in their Regions, so that they can act promptly to
remedy any identified instances of noneonplianee. It will be
important for the Regional Administrator to sake lure that
the Region's consent decree compliance efforts are properly
coordinated between the Regional Program Offices, the Regional
Counsel's Office, and other appropriate offices in the Region.
With regard, to the consent decree tracking system, these
compliance efforts will includet
* Reviewing the consent decree summaries prepared
by MEXC for accuracy prior to final entry into
the Consent Decree Libraryt
.• Forwarding to HEIC copies of all future EPA
concent decrees that have been entered in Court,
including any renegotiated consent decrees.
* Conducting compliance monitoring in accordance with
policy issued by the national program offices to
determine if the terms of each consent decree
are met. Regional Offices nay use whatever
automated information system they choose to
assist then in aonitoring.
CWA Compliance/Enforcement 10-39 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
-13-
* Responding to OMO requests for information
concerning consent decree compliance status.
* Osing the Consent Decree Library as say be
necessary to ensure the compliance of
•listing consent decrees and in drafting and
negotiating new consent decrees.
17 OECN
Under the tracking system, OECN's general responsibilities
of tracking consent decree compliance will bo shared by OHO
and the Associate Enforcement Counsels* The00 responsibilities
will includes
* Sending quarterly information requests
inquiring about the compliance status of the
consent decrees in each Region to each
Regional Administrator.
* Forwarding summary information from
the Regional Administrator to HEIC to use
in updating the Consent Decree Library.
* Forwarding to NEIC copies of all future EPA
consent decrees in nationally managed cases,
including any renegotiated consent decree in
which the Associate Enforcement Counsel took
the lead in the renegotiation.
CWA Compliance/Enforcement 10-40 Guidance Manual 1985
-------
Chapter Ten
Exhibit 10-2
-14-
* Tracking the overall EPA consent decree
enforcement effort using information
contained in the Regional Adrainstrator's
responses to OECN's quarterly consent
decree compliance information requeats.
* Evaluating each Region's accomplishments
in monitoring consent decree compliance and
responding to nonconplianca problems*
The success of this uniform national ayatem for tracking
consent decrees depends upon how well Agency offices work
together in iaplementing and maintaining the system. If
properly implemented and maintained, the tracking system can
enhance EPA'a consent decree enforcenwnt efforts.
If you'have any questions concerning tha system, please
contact Michael Randall of OLEP at FTS 382-2931 or
Gerald Bryan of OHO at PTS 382-4134.
Attachments
CWA Compliance/Enforcement
10-41
Guidance Manual 1985
-------
Chapter Ten Exhibit 10-2
Attachment A
SAMPLE PROSPECTIVE REPORT FOR THE QUARTER BEGINNING 7/1/83
Liatad below at* the consent decree Milestones which will
come due during the present quarter.
1. Republic Steel Chicago, 111
Milestonei Place purchase order
Due datei 9/19/83
2. Great Lakes Steel lug Island, HZ
Milestone! Commence construction
Due datai 8/1/83
3. ford Motor Co. Dearborn, MX
Milestone! Demonstrate compliance
Due datei 9/30/83
CH& Compliance/Enforcement 10-42 Guidance Manual 1985
-------
Chapter Ten Bifaibit 10-2
Attachment 3
SAMPLE RETROSPECTIVE REPORT FOR THE QUARTER ENDED 6/30/83
Please provide the requested information for the
consent decrees milestones listed below.
A. Milestones due In quarter dated 4/1/83 to 6/30/83:
1. Republic Steel Chicago, 111
Milestone! Submit engineering plan
Due date* 6/30/83
«. Has Milestone Achieved?
(yea or no)
b. If net achieved, was nilestone renegotiated?
(yea or no)
e. If renegotiated.* please indicate new milestone.
(e.g., new milestone date due ia 9/30/83)
d. 1C not achieved or renegotiated, what action is
contemplated to bring source back into compliance?
(e.g., referral to OLEC BQ)
3. Milestones due In previous quarters which were not set
in those quarters and had not been renegotiated or
achieved as of 3/31/83?
1, Great Lakes Steel lug Island, NX
Milestonei Place purchase order
Due dates 1/1/83
a. Has milestone been achieved since the previous update?
(yes or no)
b. If not achieved, has milestone been renegotiated since
the previous update?
(yes or no)
c. CRepeat above)
d* (Repeat above)
C. Total number of consent decrees with milestones not
met or renegotiated by 6/30/93. (number)
0. total number of consent decrees this quarter
brought back into compliance with milestone
requirements due to action (including
renegotiation) taken by the Region? , (number)
CHA Compliance/Enforcement 10-43 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-3
Demand Letter for Stipulated Penalties
(Reserved)
CWA Compliance/Enforcement 10-44 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-3
(Reserved)
CWA Enforcement/Compliance 10-45 Guidance Manual 1985
-------
Chapter Ten
Exhibit 10-4
Uotioa To Enforce Decree
DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
UNITED STATES of AMERICA
Plaintiff,
v.
TRANSFORMER SERVICE (OHIO),
INC.
Defendant.
CIVIL ACTION NO. C-80-122-A
JUDGE CONTIE
MOTION BY PLAINTIFF UNITED STATES
TO ENFORCE JUDGMENT AND FOR ORDER
TO SHOW CAUSE WHY DEFENDANT SHOULD
NOT BE HELD IN CONTEMPT
Plaintiff United States of America, at the request of the
Administrator of the United States Environmental Protection Agency
("EPA"), alleges:
1. This is a post judgment proceeding, pursuant to Rule 70 of
the Federal Rules of Civil Procedure and 28 U.S.C. §1651, for addi-
tional injunctive relief and civil penalties for the continuing failure
of the defendant, Transformer Services (Ohio), Inc., to comply with
the Consent Decree entered into in this action on July 19, 1980, and
filed on November 6, 1980.
JURISDICTION AND VENUE
2. This Court has jurisdiction of the subject matter of this
action pursuant to 28 U.S.C. §1345 and §1651, and Section 17 of the
Toxic Substances Control Act (TSCA"), 15 U.S.C. §2616 and §309(b) of
the Clean Water Act, 33 U.S.C. §1319(b).
3. Venue is proper in this Court pursuant to 28 U.S.C. §1391
since defendant resides in this judicial district, the claims asserted
in this action arose in this district, and the Consent Decree filed
herein was filed in this district.
PARTIES
4. Defendant Transformer Service (Ohio), Inc. ("TSI" or "the
defendant"), is a corporation organized and doing business under the
laws of the State of Ohio. Defendant's business office is located at
680 East Market Street, Akron, Ohio.
CUA Compliance/Enforcement
10-46
Guidance Manual 1985
-------
Chapter Ten Exhibit 10-4
PROCEDURAL BACKGROUND
5. On July 17, 1980, the United States filed a Complaint in
this action alleging, inter alia, that defendant disposed of poly-
chlorinated biphenyls ("PCBs") at its field shop at 699 Home Avenue,
Akron, Ohio in a manner that violated Sections 6 and 15 of TSCA, IS
U.S.C. §§2605 and 2614, including by allowing PCBs to seep into soil
at the Home Avenue site. The Complaint also alleged that defendant
had discharged pollutants from the Home Avenue site into sewers
discharging into the Little Cuyahoga River located near the site.
6. A Consent Decree was entered into by the parties on July
19, 1980 and filed herein on November 6, 1980 (a copy of which is
annexed as Exhibit A hereto). The Decree required, inter alia, that
TSI "complete the removal and disposal of all PCB-contaminated soils
within and adjacent to its field shop located at 699 Home Avenue, in
strict accordance with the requirements of 40 C.F.R. §761.lO(a)(4)."
The clean-up was required to include removal of all PCB-contaminated
soils to a level whereby all remaining soils retained PCB concentra-
tions of less than 50 parts per million ("ppn") and disposal of the
PCB-eontamlnated soils was required to be only by the methods listed
in 40 C.F.R. §761.10(a)(4). TSI was required to complete the removal
and disposal of the PCB-contaminated soil within 6 months of entry of
the decree.
CLAIM FOR RELIEF
7. TSI has failed to remove all the PCB-contaminated soil
in excess of 50 ppm froa the Home Avenue site (see Affidavit annexed
as Exhibit B hereto). Testing by EPA indicates that soil contamina-
tion levels up to 790 parts per million PCB remain at the site. The
most recent information generated by TSI shows an even higher level of
contamination of 1000 parts per million PCB in soils at the site (see
Affidavit annexed as Exhibit C hereto).
8. It is now almost 4 years since the Consent Decree was
entered into by the parties. TSI has clearly failed to complete the
removal of PCB-contaminated soils within the 6-month period allowed by
the Consent Decree, and shows no sign of completing the removal of the
contaminated soil in the near future.
9. Contrary to the requirements of the Consent Decree that
removal and disposal of the PCB-contaminated soil from the Home Avenue
site be in accordance with all applicable statutory and regulatory
requirements, including the requirement that the soil be disposed of
at a licensed PCB landfill, TSI's officers attempted to violate the
Consent Decree and the law by removing contaminated soils from the
Home Avenue site on a weekend and attempting to sell it as non-
contaminated soil to an auto wrecking yard. Gregory Booth of TSI and
Gerald Rafferty, General Manager of TSI, were indicted for several
felonies as a result of these actions and pled guilty to a felony and
misdemeanor count.
CWA Enforcement/Compliance 10-47 Guidance Manual 1985
-------
Chapter Ten Exhibit 10-4
10. Particularly in light of the egregious and unlawful
behavior of defendant and its officers and their protracted delay in
cleaning up the Home Avenue site, it is essential that this Court take
action to force the defendants to clean up the site promptly and to
penalize them for their willful failure to comply with the Consent
Decree herein. Since PCBs are highly toxic substances which bioaccu-
mulate in the environment and produce deleterious health effects in
humans and animals, Including skin lesions, reproductive failure,
teratogenicity (abnormal fetal development), and cancer (see 1T6 of
Complaint herein), it is of the utmost public concern to ensure that
this site is cleaned up Immediately.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that this Court issue an
order:
1. Directing defendant to file an answer or other
responsive pleading to this motion within 20 days after service;
2. Permitting plaintiff to file a reply within 10 days of
receipt of defendant's response.
3. Directing defendant to appear before this Court and
present evidence why it should not be held in contempt for failure to
comply with this Court's Consent Decree of July 19, 1980;
4. Directing defendant to complete the removal and disposal
of PCB-contaminated soils at the site in accordance with the require-
ments of the Consent Decree by no later than November 1, 1984;
5. Requiring defendant to post a bond in the amount of the
expected cost of completion of the clean-up within 15 days of the
entry of the contempt order requested herein;
6. Requiring defendant to pay a civil penalty of up to
$25,000 per day of violation for its past failure to comply with the
Consent Decree herein;
7. Requiring defendant to pay penalties to be affixed by
the Court in an amount of up to $25,000 per day in the event that
defendant does not comply'with the contempt order requested herein;
and
CWA Enforcement/Compliance 10-48 Guidance Manual 1985
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Chapter Ten
Exhibit 10-4
8.
Requiring defendant to pay the United States' costs of this
motion.
By:
OF COUNSEL:
THOMAS DAGGETT
U.S. Environmental Protection
Agency
Region V
230 South Dearborn Street
Chicago, Illinois 60604
F. HENRY HABICHT, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
CATHERINE R. McCABE
Attorney, Environmental Enforcement
Section
Land and Natural Resources Division
U. S. Department of Justice
Washington, D.C. 20530
(202) 633-2779
J. WILLIAM PETRO
U.S. ATTORNEY
DENNIS P. ZAPKA
Assistant U.S. Attorney
Northern District of Ohio
1404 East Ninth Street, Suite 500
Cleveland, Ohio 44114
(216) 363-3950
CWA Enforcement/Compliance
10-49
Guidance Manual 1985
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Chapter Ten Exhibits
Compliance/Enforcement 10-50 Guidance Manual 1085
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Chapter Eleven
Special Topics in the NPDES Program
Chapter Contents Page
1 Introduction 11-1
2 Standard Permit Conditions 11-3
Duty To Comply 11-3
Proper Operation and Maintenance 11-4
Duty To Mitigate 11-4
Duty To Halt or Reduce Activity 11-4
Duty To Provide Information 11-4
Inspection and Entry 11-5
Monitoring and Recordkeeping 11-5
Reporting and Signatory Requirements 11-6
Notice of Planned Physical Alterations or Additions 11-9
Bypass of Treatment Facilities 11-10
Upset Conditions 11-10
Duty To Reapply 11-11
3 Permit as a Shield 11-13
The General Rule 11-13
Exceptions to the General Rule 11-14
4* Issuanceof Best Professional Judgment Permits 11-15
Setting BPJ Permit Limitations 11-15
Issuing the BPJ Permit 11-17
CWA Compliance/Enforcement11-1Guidance Manual 1985
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Chapter Eleven .. Contents
5 Special NPDES Evidentiary Hearing Procedures 11-19
Request for a Hearing 11-19
Filing Documents 11-19
Ex Parte Communications 11-20
Prehearing Conferences 11-20
Motions . . 41-21
Summary Determinations 11-21
Hearing Procedures 11-22
Interlocutory Appeals 11-23
6 The Freedom of Infortiation Act 11-25
Denials of FOIA Requests, . ... 11-26
Exemptions . . 11-2?
7 Protection of Confidential Business Information 11-29
CWA Compliance/Enforcement 11-ii Guidance Manual 1985
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Chapter Eleven
1 Introduction
Chapter One contained a broad overview of the general provisions of the
Clean Water Act (CWA) and its implementing regulations. This chapter pro-
vides a more detailed discussion of particular topics relevant to the NPDES
program.
As discussed in the first chapter, the central mechanism for accomplishing
the CWA's goal is the NPDES permit system, outlined in Section 402. The
NPDES program prohibits discharges of pollutants from a point source into
the waters of the United States unless the discharger acquires a permit
from EPA or from an approved state in which the discharge will occur.
This chapter will address the following topics:
• Boilerplate permit conditions;
• A permit as a shield to enforcement;
• Issuance of best professional judgment (BPJ) permits;
• Special evidentiary procedures required for permit hearings;
• The Freedom of Information Act; and
• Protection of Confidential Business Information.
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Chapter Eleven Introduction
CHA Compliance/Enforcement 11-2 Guidance Manual 1985
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Chapter Eleven
2 Standard Permit Conditions
This section addresses the standard NPDES conditions that EPA or an ap-
proved state must place in every permit. These are only minimum condi-
tions; the states are authorized to set more stringent permit conditions.
These "boilerplate" provisions are contained in 40 C.F.R. §122.41; any
violation of these conditions is actionable in an enforcement proceeding
under Section 309 of the CWA. These provisions may be incorporated into a
permit either expressly or by reference. Further, in the event a particu-
lar condition is held invalid, the remainder of the permit retains its full
force and effect. This section discusses the following conditions:
• Duty to comply;
• Proper operation and maintenance;
• Duty to mitigate;
• Duty to halt or reduce activity;
• Duty to provide information;
• Inspection and entry;
• Monitoring and recordkeeping;
• Reporting and signatory requirements;
• Notice of planned physical alterations or additions;
• Bypass of treatment facilities;
• Upset provisions; and
• Duty to reapply.
Duty To Comply [Section 122.41(a)]
The permittee must comply with all of the conditions of the permit. A
violation of any of these conditions is grounds for an enforcement
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Chapter Eleven Standard Permit Conditions
proceeding, permit termination, permit revocation and reissuance or modifi-
cation, or for denial of a permit renewal application. Under Section
309(d) of the CWA, where the permittee violates conditions implementing CWA
Sections 301, 302, 306, 307, 308, 318, or 405, he or she may be liable for
civil penalties of up to $10,000 per day of violation. Persons who will-
fully or negligently violate these same conditions are subject to criminal
penalties of $25,000 per day of violation, imprisonment for up to one year,
or both.
Proper Operation and Maintenance [Section 122.4l(e)]
The permittee must at all times properly operate and maintain all facil-
ities and systems of treatment and control (and related appurtenances) that
are installed or used by the permit holder to achieve compliance with the
permit conditions. This includes adequate laboratory controls and appro-
priate quality assurance procedures. The operation of back-up or auxiliary
facilities or similar systems installed by the permittee, is required when
such operation is necessary to achieve compliance with the conditions of
the permit.
Duty To Mitigate [Section 122.41(d)]
A permittee must take all reasonable steps to minimize or prevent any
discharge in violation of the permit that has a reasonable likelihood of
adversely affecting human health or the environment. Note that this condi-
tion does not impose liability for medical costs for persons harmed by the
results of the noncompliance. See "Duty To Halt or Reduce Activity" below.
Duty To Halt or Reduce Activity [Section 122.41(c)
A permit holder, in an enforcement action, may not defend its facility's
noncompliance on the grounds that it would have been necessary to halt or
reduce activity of the regulated facility in order to avoid the violation.
The permittee is expected to temporarily cease or reduce operations to
maintain compliance.
Duty To Provide Information [Section 122.41(h)]
The permittee must, within a reasonable time, provide the NPDES program
director (generally either the regional program division director or the
state NPDES director) with any information that the director may request to
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Chapter Eleven Standard Permit Conditions
determine whether cause exists for modifying, revoking and reissuing, or
terminating a permit, or to determine permit compliance. For example, upon
request, the permit holder must also furnish the director with copies of
any records that, under the provision of the permit, are required to be
kept.
Inspection and Entry [Section 122.41(1)]
The permittee must allow the NPDES program director or an authorized repre-
sentative who presents credentials and other documents as may be required
by law, to:
• Enter the permit holder's premises where the regulated facility or
activity is located or where records must be kept in accordance
with permit conditions;
• Have access to and copy, at reasonable times, any records that must
be kept in accordance with permit conditions;
• Inspect, at reasonable times, any facility, equipment (including
monitoring and control equipment), practices, and operations
regulated or required by a permit; and
• Sample or monitor, at reasonable times, for the purpose of ensuring
permit compliance or as otherwise authorized by the CWA, any sub-
stances or parameters at any location.
Monitoring and Recordkeeping [Section 122.41(j)]
Monitoring Requirements
The NPDES regulations require the permittee to monitor the mass (or other
measurement specified in the permit) for each pollutant or indicator
limited by the permit and the volume of effluent discharged from each
outfall. In addition, the permittee may be required to take any other
appropriate measurements, including:
• Pollutants subject to notification requirements;
• Pollutants in Intake water (in the case of net limitations); and
• Frequency and rate of discharge for noncontinuous discharges.
The permittee's samples and measurements must be representative of the
regulated activity, and the permittee must take all samples and measure-
ments at the locations and with the frequency specified in the permit. If
the permit holder monitors any pollutant more frequently Chan required by
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Chapter Eleven Standard Permit Conditions
the permit, he or she must include the results of this additional testing
in the calculation and reporting of the data submitted in the DHE. Any
calculations made for pollutant limitations, which require an averaging of
measurements, shall use an arithmetic means unless the permit specifies
otherwise [40 C.F.R. §122.41(a)]. Approved testing procedures for
sampling are established in 40 C.F.R. Fart 136.
Recordkeeping
The permittee must retain records of all monitoring information for a
period of at least three years from the date of each sample, measurement,
report, or application. The NfDES director may extend this period upon
request* Required records Include all calibration and maintenance records,
all original strip chart recordings, copies of all reports required by the
permit, and records of all data used to complete the permit application.
Monitoring records must include the following:
* The date, exact place, and time of the sample or measurement;
* The Individuals who performed the sampling or measurement;
* The dates that the analyses were performed;
* The names of the Individuals who performed the analyses;
* The analytical techniques or methods that were used; and
* The results of such analyses.
Reporting and Signatory Requirements (Sections 122.41, 122.42, and 122.22) '
Reporting Requirements
Under 40 C.F.R. §§122.41(1)(4) and 123.22(d), the state or EPA permittee
must report all monitoring results on a Discharge Monitoring Report (DMR)
form. The frequency of submission of the DMR depends on the nature and
effect of the discharge and is designated in the permit, but in no case
will the frequency be set at less than one year [40 C.F.R. §122.44(i)(2)].
The permittee must report any noncompllance that may endanger health or the
environment within 24 hours from the time he or she becomes aware of the
circumstances, and, unless waived, must provide the director with a written
submission five days later. The written submission must contain a descrip-
tion of the cause of noncompllance, the period of noncompliance (Including
exact dates and times), the anticipated time It is expected to continue,
and finally the steps taken or planned to reduce, eliminate, or prevent a
recurrence of the noncompliance.
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Chapter Eleven _ Standard Feral t Conditions
Under 40 C.F.R. §122.41(1)(6), the permittee must report the following
within 24 hours:
* An unanticipated bypass that exceeds any effluent limitation in the
permit. (The director may waive the written report on a case-by-
case basis if he or she receives the oral report within 24 hours.};
* An upset that exceeds any effluent limitation in the permit; or
» A violation of the maximum daily discharge limitation for any
pollutant listed in the permit as requiring 24-hour reporting.
The permittee must report all other instances of noncompliance (which are
not required to be reported within 24 hours) at the time he or she submits
the DMR. All reports of progress toward interim and final requirements
contained in a permit compliance schedule must be submitted no later than
14 days following each schedule date [40 C.F.R. §§122. 41(1) (5) and
A permittee wishing to transfer his or her permit must notify the direc-
tor. The director may require modification or revocation and reissuance of
the permit to change the name of the permittee [40 C.F.R. §122.41(1)(3)] .
A person knowingly making a false statement, representation, or certifica-
tion in any record or other document submitted or required to be maintained
under the permit is subject to a fine of not more than $10,000 per viola-
tion, imprisonment of not more than 6 months, or both [see CWA Section
309(c)(Z)].
ReportingToxic Pollutants
A permittee (other than a publicly owned treatment works) must notify the
HPDES director as soon as he or she has reason to believe that any activity
has occurred or will occur that will result in the discharge of any toxic
pollutant that is not limited in the permit and that would exceed the
highest of the following levels:
• One hundred micrograms per liter (100 ug/L);
* two hundred micrograms per liter (200 ug/L) for acrolein and
acrylonitrile; five hundred micrograms per liter (500 ug/L) for
2,4-dinitrophenol and for 2-methyl-4,6-dlnitrophenol; and one
milligram per liter (1 mg/L) for antimony',
• Five times the maximum concentration value reported for that
pollutant in the permit application; or
* The level established by the NPDES director in the permit.
The permittee must also notify the NPDES director as soon as the facility
has begun or expects to begin to use or manufacture, as either an inter-
mediate or final product or by-product, any toxic pollutant that was not
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Chapter Eleven Standard Permit Conditions
reported in the permit application [40 C.F.R. §§122.42(a)(l) and
122.42(a)(2)].
POTW Reporting
All publicly owned treatment works (POTWs) must provide adequate notice to
the NPDES director of any of the following:
• Any new introduction of pollutants into the POTW from an indirect
discharger that would be subject to CWA Section 301 (effluent
limitations) and Section 306 (new source performance standards) if
the facility were directly discharging the pollutants; and
• Any substantial change in the volume or character of the pollutants
introduced into the POTW since the time of permit issuance.
Adequate notice includes information on (1) the quality and quantity of
effluent introduced into the POTW, and (2) any anticipated impact of such
change on the quality and quantity of the effluent that is discharged from
the POTW [40 C.F.R. §122.42(b)].
Signatory Requirements
Under 40 C.F.R. §§122.22 and 122.41(k), the permittee must sign and certify
all applications, reports, or information submitted to the director.
Applications. All permit applications must be signed as follows:
• For a corporation, permit applications must be signed by a respon-
sible corporate officer, which means one of the following:
— A president, secretary, treasurer, or vice-president of the
corporation who is in charge of a principal business function,
or any other person who performs similar policy or decision-
making functions; or
— The manager of one or more manufacturing, production, or operat-
ing facilities that employs more than 250 persons or that has
gross annual sales or expenditures exceeding $25 million (in
second quarter 1980 dollars), if the authority to sign such
documents has been assigned or delegated to the manager in
accordance with corporate procedures;
• For a partnership or sole proprietorship, permit applications must
be signed by a general partner or the proprietor, respectively; and
• For a municipality, state, federal, or other public agency, permit
applications must be signed by either a principal executive officer
or a ranking elected official. A principal executive officer of a
federal agency includes:
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Chapter Eleven Standard Permit Conditions
— The chief executive officer of the agency, or
— A senior executive officer having responsibility for the overall
operation of a principal geographic unit of the agency
[40 C.F.R. §122.22(a)].
Reports. All reports required by permits and any other information reques-
ted by the director must be signed by a person described above under
"Applications" or by a duly authorized representative of that person. A
representative is duly authorized only if the following conditions are met:
• Written authorization is submitted to the director; and
t The authorization specifies either an individual or a position
having overall responsibility for environmental matters for the
company or responsibility for the overall operation of the regu-
lated facility or activity such as plant manager, operator of a
well or a well field, superintendent, or a position of equivalent
responsibility [40 C.F.R. §122.22(b)].
Certification. Any person authorized (as described above) to sign a docu-
ment shall make the following certification:
I certify under penalty of law that this document and
all attachments were prepared under my direction or
supervision in accordance with a system designed to
ensure that qualified personnel properly gather and
evaluate the information submitted. Based on my in-
quiry of the person or persons who manage the system
or those directly responsible for gathering the
information, the information submitted is, to the
best of my knowledge and belief, true, accurate, and
complete. I am aware that there are significant
penalties for submitting false information including
the possibility of fine and imprisonment for knowing
violations [40 C.F.R. §122.22(d)].
Notice of Planned Physical Alterations or Additions {Section 122.41(1)1
The permittee must give advance notice to the director of any planned
physical alterations or additions to the permitted facility where:
• The alteration or addition to the facility may meet one of the
criteria or determining whether a facility is a new source; or
• The alteration or addition could significantly change the nature of
or increase the quantity of pollutants discharged. [This notifica-
tion requirement also applies to pollutants that are not subject to
either effluent limitations in the permit or to the toxic discharge
notification requirements in 40 C.F.R. H22.42(a).]
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Chapter Eleven Standard Pernit Conditions
Bypass of Treatment Facilities [Section 122.41(m)J
Bypass occurs where the permittee intentionally diverts a waste stream away
from a treatment facility. The NPDES regulations generally prohibit bypass
unless:
• The bypass was unavoidable and necessary to prevent loss of life,
personal injury, or severe property damage. Severe property damage
means substantial physical damage to property, damage to the treat-
ment facilities that causes them to become inoperable, or substan-
tial and permanent loss of natural resources that can reasonably be
expected to occur in the absence of a bypass. Severe property
damage does not mean economic loss caused by delays in production;
or
• There were no feasible alternatives to the bypass, such as using
auxiliary treatment facilities, retaining untreated wastes, or per-
forming necessary maintenance during normal periods of equipment
down time. This condition is not satisfied if adequate back-up
equipment should have been installed in the exercise of reasonable
engineering judgment to prevent a bypass that occurred during
normal equipment down time or preventive maintenance.
Bypass does not constitute a violation where it has not caused effluent
limitations to be exceeded, and only if it is necessary for essential
maintenance to ensure efficient operation of the treatment facility.
Essential maintenance includes repairs and maintenance that cannot wait
until the production process is not in operation. Economic considerations
alone do not qualify maintenance as essential.
If the permittee knows in advance of the need for a bypass that will exceed
the limits of the permit, the permittee must submit prior notice, if pos-
sible, at least 10 days before the date of the bypass. The director may
approve an anticipated bypass after considering its adverse effects, if he
or she determines that it will meet the conditions listed above.
The permittee must submit notice of an unanticipated bypass within 24 hours
following the incident.
Upset Conditions [Section I22.41(n)]
An upset Is an exceptional incident in which there is unintentional and
temporary noncompliance with technology-based limitations due to factors
beyond the permittee's reasonable control. An upset does not include non-
compliance caused by operational error, improperly designed facilities,
inadequate facilities, lack of preventive maintenance, carelessness, or
improper operation.
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Chapter Eleven Standard Permit Conditions
An upset constitutes an affirmative defense to an action brought for non-
compliance with technology-based limitations. It is not an affirmative
defense for violations of water quality standards. The administrative
denial of this affirmative defense alone does not constitute final Agency
action subject to judicial review.
A permittee who wishes to establish the affirmative defense of upset must
demonstrate, through properly signed, contemporaneous operating logs or
other relevant evidence, that the following conditions were in effect at
the time of the upset:
• The permittee can identify the cause of the upset;
• The permitted facility was being properly operated at the time;
• The permittee submitted notice of the upset within 24 hours follow-
ing the incident; and
• The permittee complied with any remedial measures required by the
permit.
The permittee who seeks to establish an upset has the burden of proof in an
enforcement action.
Duty To Reapply [Section 122.41(b)]
If the permittee wishes to continue an activity after the expiration date
of the permit, the permittee must apply for and obtain a new permit. The
application must be submitted at least 180 days before the expiration date
of the existing permit. The NPDES director may grant permission to submit
an application less than 180 days before expiration, but no later than the
permit expiration date [40 C.F.R. §122.21(d)].
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Chapter Eleven Standard Permit Conditions
CWA. Compliance/Enforcement 11-12 Guidance Manual 1985
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Chapter Eleven
3 Permit as a Shield
The General Eule
Section 402(k) of the Act states that "Icompliance with a permit...shall
be deemed compliance, for purposes of Sections 309 [Agency enforcement
actions] and 505 [citizen suits]," with the following sections;
§301 Effluent limitations
§302 Water quality-related effluent limitations
§306 National performance standards
§307 Toxic and pretreatment standards
§403 Ocean discharge criteria
The permittee may generally discharge a substance in any quantity not
specifically limited by the permit [Montgomery Environmental Coalition v.
Costle, 646 F. 2d. 568, 588 (D.C. Cir. 1980)]. Permit compliance may
shield the discharger and may establish an absolute defense against either
a government enforcement action or a citizen suit. To obtain the shield,
permittees must provide all information on their discharge requested by EPA
during the permit application process. Permit compliance does not shield
the discharger against certain actions such as a Section 504 emergency
enforcement action, a Section 307 toxics standards action, or a Section 308
or 309(f) action. Further, EPA may bring suit under the emergency provi-
sion of the Safe Drinking Water Act, if there is an endangerraent to drink-
ing water supplies.
The shield concept is based on the presumption that the permit writer had
adequate information describing the nature of the pollutants to be dis-
charged and has incorporated this information into the permit limitations.
Further, it provides the permittee some certainty on how to manage his or
her treatment activities.
In E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 138 n. 28 (1977),
the U.S. Supreme Court interpreted Section 402(k) as "giving permits
finality," and stated that "the purpose of §402(k) seems to be to insulate
permit holders from changes in various regulations during the period of a
permit and to relieve them of having to litigate...the question whether
their permits are sufficiently strict."
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Chapter Eleven Permit as a Shield
Exceptions to the General Eule
Section 402(k) provides that compliance with the permit will not be deemed
compliance with any standard imposed under Section 307 (toxic and pretreat-
ment standards) for a toxic pollutant injurious to human health. Permit
holders must comply with new or revised standards for toxic pollutants by
the date specified in the rulemaking. These Section 307(a) standards can
be found in 40 C.F.R. Part 129. Thus, the lack of a permit limitation for
a toxic standard does not preclude an enforcement action for the violation
of that standard.
In the leading Section 402(k) decision, Inland Steel Co. v. EPA. [574 F.
2d. 367, 373 (7th Cir. 1978)], the court held that Section 402(a)(3)
authorizes EPA to terminate or modify a permit to reflect subsequently
adopted toxic pollutant standards. [See 40 C.F.R. §122.62(a)(6).] The
court further stated that:
The language [of §402(k)] should be read to mean that a
permit insulates the permit holder from any change in the
regulation until the change is incorporated into the per-
mit, and as a recognition that changes in the regulations,
except for those prescribing standards for toxic pollutants
• injurious to human health, are not self-executing but must
be placed in a permit before they can be enforced against a
permit holder. (564 F. 2d at 373) [emphasis added]
The court reasoned that the protection of human health should not be
delayed while proceedings are undertaken to modify the permits of those
facilities discharging the toxic pollutant.
The District of Columbia Court of Appeals has agreed with Inland Steel in
two opinions. In Hercules Inc. v. EPA [598 F. 2d. 91, 130 (D.C. Cir.
1978)], the court noted that "dischargers must meet newly established toxic
standards even before their permits have been revised to include them." In
Environmental Defense Fund v. EPA [598 F. 2d. 62, 73 (D.C. Cir. 1978)], the
court stated that "citizen suits for violations of Section 307 [are] free
from certain procedural requirements of other citizen suits; [and] that
Section 307 standards [are] to become effective quickly."
Where a permit is not modified to incorporate a new or revised toxic stan-
dard, EPA regulations, nonetheless, require compliance within the tine
provided in the regulations that establish these prohibitions [40 C.F.R.
§122.41(a)(1)]. Of course, once the permit has been modified, the permit
holder is also susceptible to either a Section 309 enforcement action or a
Section 505 citizen suit for noncompliance.
Section 504 of the CWA provides a second important exception to the shield
concept. Section 504 authorizes the Administrator to seek an injunction
against any discharger in the event of imminent and substantial endanger-
raent to human health or welfare. Finally, neither Section 308 violations
nor Section 309(f) actions are covered by the general rule.
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Chapter Eleven
4 Issuance of Best Professional Judgment
Permits
Setting BPJ Permit Limitations
As discussed in Chapter One, each discharger must comply with technology-
based limitations based on either (1) national effluent limitation guide-
lines or (2) in the absence of applicable guidelines, a case-by-case deter-
mination made by a permit writer of the appropriate level of treatment
technology. This latter type of limitation is referred to as a best pro-
fessional judgment (BPJ) permit limitation. BPJ permit limitations may
also be used in conjunction with a national guideline where the guideline
does not address a particular pollutant that is discharged.
Section A02(a)(l) of the CWA states:
[T]he Administrator may...issue a permit for the discharge
of any pollutant...upon condition that such discharge will
meet either all applicable requirements under Sections 301,
302, 306, 307, 308 and 403 of the Act, or, prior to the
taking of necessary implementing actions relating to all
such requirements, such conditions as the Administrator
determines are necessary to carry out the provisions of
this Act. (Emphases added)
See also U.S. Steel Corp. v. Train [556 F. 2d. 822, 844 (7th Cir. 1977)]
and NRDC v. Train [510 F. 2d. 692, 709-710 (D.C. Cir. 1975)].
The Supreme Court recognized in E.I, du Pont Nemours & Co. v. Train [A30
U.S. 112 (1977)] that "large numbers of permits could be issued before the
§301 [effluent guideline] regulations were promulgated" (A30 U.S. at 134
n.24). [Accord. NRDC v. Train. 510 F. 2d 692, 696 n.9 (D.C. Cir. 1975);
United States v. Cargill Inc., 508 F. Supp. 734, 739 (D. Del. 1981);
Homestake Mining Co. v. EPA, 477 F. Supp. 1279, 1288 (D. S.D. 1979);
and United States v. Cutter Laboratories, Inc., 413 F. Supp. 1295 (E.D.
Tenn. 1976).] Section 402(a)(l) and its implementing regulations "clearly
provide for the issuance of NPDES permits prior to the establishment of
effluent limitations" by regulation (Id. at 1298).
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Chapter Eleven Issuance of Best Professional Judgment Permits
In developing a BPJ permit:, the permit writer first determines the appro-
priate BCT or BAT technology requirements for the entire industry and then
considers any site-specific factors that make the particular discharger
different from the Industry in general [see U.S. Steel Corp. v. Train, 556
F. 2d 827, 844 (7th Cir. 1977)]. In making this determination, permit
writers apply the following factors listed in CWA Section 304(b).
General Factors To Consider (all BPJ Permits)
* The age of the equipment and facilities involved;
* The industrial processes used;
* The engineering aspects of the application of various types of
control techniques, process changes, nonwater-quality environmental
impacts; and
* Any other factor that the Administrator deems appropriate.
Special Factors To Consider for;
BPJ-Best Practicable Technology (BPT) Permits. The total cost of the
applicable technology should be considered in relation to the effluent
reduction benefits to be achieved from the application of BPT«
BPJ-Best Available Technology (BAT) Permits. Permit writers should
consider the following points:
• Existing treatment techniques;
» Process and procedure innovations;
* Operating methods and other alternatives for classes and
categories of point sources; and
• Cost of achieving such effluent reduction.
BPJ-Best Conventional Technology (BCT) Permits. Permit writers must
analyze the cost of attaining a BCT-level reduction in effluents and
the effluent reduction benefits derived by both POTWs and industrial
point sources.
Other Factors To Consider
In addition to these general and special factors, permit writers should
consider the control measures and practices that are available to eliminate
discharge of pollutants from categories and classes of point sources, tak-
ing into account the cost of such elimination. EPA has published a Treat-
ability Manual to aid permit writers in these efforts. The manual can be
obtained from the Permits Division, Office of Water.
CWA Compliance/Enforcement 11-16 Guidance Manual 1985
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Chapter Eleven Issuance of Best Professional Judgment Permits
Issuing the BPJ Permit
A fact sheet must accompany the following proposed BPJ permits (see 40
C.F.R. §§124.8 and 124.56):
• Major dischargers;
• General permits;
• Draft permits incorporating a variance;
• Draft permits that raise major issues or are the subject of wide-
spread public Interest;
• Draft, permits controlling toxic pollutants;
• Draft permits limiting internal waste streams; and
• Draft permits limiting indicator pollutants.
The fact sheet contains an analysis and explanation of the calculations or
other determinations of the derivation of the BPJ limitations and condi-
tions in the specific permit. (Note that, when EPA establishes a metho-
dology for setting BCT effluent limitations, it will require all permit
writers to use that methodology when developing BPJ-BCT limitations.) A
fact sheet that fails to provide adequate rationale for the limitations may
result in a successful challenge to the permit.
Effluent guidelines can only be challenged in the U.S. Court of Appeals
within 90 days following promulgation of the guidelines and cannot be chal-
lenged in an evidentiary hearing. A BPJ determination may be the subject
of an evidentiary hearing conducted according to the Administrative
Procedure Act (APA), 5 U.S.C. Section 556 and 40 C.F.R. Part 124 Subpart
E. However, a permit based on an effluent guideline may not be challenged
in an evidentiary hearing except on factual questions relating to
application to the particular discharge.
BPJ permits have full force and effect and are binding upon the permit
holder. Like permits using BAT and BCT limitation guidelines, BPJ permits
are enforceable under Sections 309 and 505 of the Act.
EPA may not relax a BPJ limitation if the final BCT or BAT guideline is
less stringent than the BPJ permit, unless the permit holder can show that
its operation and maintenance costs are totally disproportionate to those
considered in the subsequently promulgated guideline [40 C.F.R. §122.62
(a)]. In the event the BCT or BAT limitations are more stringent, the
permittee is shielded from the tougher standards unless the permit is
modified.
CUA Compliance/Enforcement 11-17 Guidance Manual 1985
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Chapter Eleven Issuance of Best Professional Judgment Permits
CWA Compliance/Enforcement 11-13 Guidance Manual 1985
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Chapter Eleven
5 Special NPDES Evidentiary Hearing
Procedures
Any Interested person may challenge an issued NPDES permit, except a
general permit [40 C.F.R. §124.71(a)], by requesting a formal hearing.
General permits, which are similar to regulations and not adjudication,
cannot be challenged administratively, but only In a court. Requesting an
evidentiary hearing and a subsequent appeal to the Administrator are pre-
requisites to judicial review for an Individual EPA-issued NPDES permit,
according to 40 C.F.R. §124.91(e), Section 704 of the Administrative
Procedure Act (APA), and Section 509(b)(l) of the CWA.
Request fora Hearing
A permittee or any interested person must file a request for an NPDES evi-
dentiary hearing (hereafter referred to as "hearing") with the Regional
Administrator (RA) within 30 days of a final permit decision [40 C.F.I.
§124.74(a)]. The requestor sends a letter that identifies the requestor,
his or her Interest in the permit, the contested permit conditions, pro-
posals for alternative conditions (including deletion), the legal and
factual issues to be resolved, and an estimate of the amount of time
necessary for the hearing.
The RA has 30 days to respond to a hearing request. The RA must deny a
request that raises only purely legal issues. The requestor may appeal a
denial to the Administrator. The RA will grant a request that raises
material issues of fact relevant to permit issuance [see 40 C.F.R.
§124.75(a)(l)]. The RA must provide reasons for denying the hearing
request. Appeals resulting from an RA's denial must be taken to the
Administrator within 30 days of the denial (see 40 C.F.R. §124.91).
Filing Documents
Each party must file (with the Regional Hearing Clerk) an original and one
copy of all written submissions related to the hearing. The parties must
also serve these documents (either by mail or personal delivery) to all
other parties to the proceeding and to the Administrative Law Judge (ALJ).
CWA Compliance/Enforcement 11-19 Guidance Manual 1985
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Chapter Eleven Special NPDES Evidentiary Hearing Procedures
The party must then file an affidavit of service with the Regional Hearing
Clerk [40 C.F.R. §124.80(a-c)].
The clerk will maintain a record of all involved parties, including service
addresses, telephone numbers, and the name and telephone number of any
attorney representing any party. This information is available on request
[40 C.F.R §124.80(d)].
Ex Parte Communications
The APA prohibits any decisionmakers from engaging in ex parte discussions
of the merits of a formal hearing with interested persons outside the
Agency [5 U.S.C. §557(d)]. The APA also contains a separatlon-of-functions
provision, which prohibits anyone Involved in investigative or prosecu-
torial functions from participating in the hearing, or giving advice to the
ALJ [5 U.S.C. §554(d)]. These two provisions are meant to ensure impartial
deeisionmaklng by the Agency. EPA employees, consultants, and contractors
who are either called as witnesses or assisted in developing the draft
permit (which is the subject of the hearing), have been designated as
members of the Agency trial staff, and may not participate in ex parte
contacts [see 40 C.F.R. §124.78(a)(l>].
Prehearing Conferences
EPA regulations (40 C.F.R. §124.83) provide for prehearing conferences.
These conferences may be convened at the request of any party of record, or
on motion of the ALJ [40 C.F.R §124.83(a)]. The prehearing conference may
be used to:
* Limit, simplify, or clarify the issues in dispute;
• Establish admissions of facts and the genuineness of documents to
be received In evidence;
• Collect all written testimony and mark items for identification;
• Identify expert witnesses (the ALJ can request a summary of the
anticipated expert testimony);
• Raise objections to any written documents, or other exhibits,
submitted in evidence;
• Agree on stipulations of proof; and
* Determine any remaining scheduling needs.
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Chapter Eleven Special NPDES Evidentiary Hearing Procedures
Following the preheating conference, the ALJ issues a preheating order
reciting all action taken during the conference, the parameters of the
hearing, and the procedures to be used [40 C.F.R. §124.83(e)].
Motions
Any party may file a motion on any matter related to the proceeding,
Including a motion to dismiss [40 C.F.R. §124.86]. Each motion must be in
writing and properly served unless offered orally during the hearing.
Any party nay file a response to a motion within 10 days after receiving
service. The ALJ may shorten this period to 3 days or extend it for 10
additional days if the respondent can demonstrate good cause.
Unless contrary to legislative intent, motions to apply recently enacted
statutory provisions will be granted. Motions to apply new EPA regulations
will be granted if they will not unduly prejudice a party [40 C.F.R.
§124.86(c)l.
Summary Determinations
Any party may file a motion for summary determination.with or without
supporting affidavits and briefs on any issue on the basis that there is no
genuine issue of material fact for adjudication. The motion must be filed
at least 45 days before the date set for the hearing* [40 C-F.R
§124.84(a)l.
Any party must make a response or counteraction for summary determination
within 30 days of receipt of service. Responsive motions must clearly
demonstrate that the motion involves genuine Issues of material fact. All
affidavits must be based on personal knowledge and must state that the
affiant is competent to testify to the matters stated therein [40 C.F.R.
§124.84(e)].
The ALJ must rule on the motion within 30 days of the filing of responsive
briefs [40 C.F.R. §124.84(d)]. The denial of a motion for summary
determination may be certified for Interlocutory appeal under 40 C.F.R.
§124.84(e) (see Interlocutory Appeals).
Upon a showing of good cause, the motion may be filed at any time prior
to the conclusion of the hearing.
CWA Compliance/Enforcement11-21 Guidance Manual 1985
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Chapter Eleven Special NPDES Evidentiary Hearing Procedures
Hearing Procedures
After the RA has granted a hearing request and designated an ALJ and trial
staff, he or she must decide which procedures to use in the proceeding. If
the permit In controversy constitutes an initial licensing under 40 C.F.R.
§124.111 (the first decision on permit Issuance to a person who has not
previously held one), the EA may elect either the Section 124, Subpart E
(evidentiary) hearing procedures, or the Section 124, Subpart F (non-
adversary) procedures, even if no party has requested that Subpart F be
applied. If the permit is not an Initial license under Section 124,111,
the RA can still choose to use Subpart F If no party offers a valid objec-
tion [40 G.F.R. §124.75(a)(2-3)].
Burden of Proof
Every party may be represented by legal counsel during the proceeding. EPA
has the burden to justify final permit conditions that have been chal-
lenged. The permittee has the burden of pursuading the Agency to issue a
permit authorizing pollutants to be discharged. Third parties have the
burden of proof for any issues they raise during the hearing [40 C.F.E.
|124.85(a)].
Discretionary Powers of the ALJ
The ALJ may rule on any of the following issues and topics:
» The exact date, time, and place of the hearing;
* Whether to hold a prehearing conference and, if so, its agenda;
» Determination of what facts are in dispute (scope of the hearing);
• Administration of oaths;
• Adnissibility of evidence;
» Identification and certification of issues for interlocutory
appeal;
» Time limits for filing motions;
* Whether or not issues in complex cases should be decided
separately;
* Allowing cross examinations when the proponent can justify the
request;
* What information can be claimed as confidential business
information;
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Chapter Eleven Special NPDES Evidentiary Hearing Procedures
» Whether testimony of opposing witnesses should be heard
simultaneously;
» The conduct of the hearing participants; and
• Taking any other action that would not be Inconsistent with Section
124, Subpart E [see 40 C.F.R. §124.85(b)].
Relevancy of Evidence
The federal rules of evidence for judicial proceedings do not apply to
hearings. All relevant, competent, and material evidence presented will be
admitted unless repetitious [40 C.F.R. §124.85(d)]. The parties should
submit all written evidence before the beginning of the hearing unless good
cause can be shown by the proponent. The administrative record of the
draft permit proceedings is automatically admitted Into evidence.*
Objections to evidence will be deemed waived unless parties raise their
objections promptly. All rulings by the ALJ are appealable to the
Administrator.
Interlocutory Appeals
To appeal a particular order or ruling made by the ALJ before the conclu-
sion of the hearing, or before the ALJ's initial decision Is issued, a
party must obtain a certification that the matter is proper for an inter-
locutory appeal to the Administrator. The party must file a request for
certification in writing, within 10 days of service of the notice of the
order or ruling, and the request must briefly state the grounds for the
appeal [40 C.F.R. §124.90(a)].
EPA regulations 40 C.F.R. §124.13 and §124.76 authorize the RA to
require the submission of all evidence, including supporting Informa-
tion, during the draft permit comment period. The failure to submit
these materials In a timely manner will prevent their use during a
subsequent evidentiary hearing. The RA must reasonably believe that the
permit issuance will be contested and that requiring the information
during the comment period may substantially expedite the decisionmaking
process.
CWA Compliance/Enforcement 11-23 Guidance Manual 1985
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Chapter Eleven Special NPDES Evidentiary Hearing Procedures
CWA Compllaace/Eaforceinent 11-24 Guidance Manual 1985
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Chapter Eleven
6 The Freedom of Information Act
The Freedom of Information Act (FOIA), 5 U.S.C. Section 552, is not a part
of the CWA, but personnel involved in compliance and enforcement activities
occasionally respond to FOIA requests. Essentially, FOIA provides for
public access to government documents, subject to some limitations. EPA
regulations state that the Agency "will make the fullest possible disclo-
sure of records to the public, consistent with the rights of individuals to
privacy, the rights of persons in business information entitled to confi-
dential treatment, and the need for EPA to promote frank internal policy
deliberations and to pursue its official activities without undue
disruption." [40 C.F.R. §2.101(a).]
The regulations implementing the FOIA at EPA are contained in 40 C.F.R.
Part 2. Actually, these regulations govern any request for information
whether styled as an FOIA request or otherwise [40 C.F.R. §2.104].
Each Regional Office and Headquarters has a Freedom of Information Officer
to whom public requests for information must be sent and who monitors pro-
cessing of the request. [The addresses are listed at 40 C.F.R. §2.106.]
Should a request for information come to you instead, you must promptly
forward it to the appropriate officer. Requests must be in writing and
"reasonably describe" the records sought in a way that permits EPA to iden-
tify and locate them. [40 C.F.R. §2.108.] If the description is not suf-
ficient, EPA must notify the requestor that the request will not be further
processed until additional information is provided. [40 C.F.R. §2.109.]
The Freedom of Information Officer notifies EPA offices believed to be
responsible for maintaining the records in the request. Assuming the
request is sufficient to permit identification and location of the records,
the responsible EPA office(s) must promptly locate the records, or deter-
mine that they do not exist, or that they are located in another EPA office
or another agency. If the records have been claimed as "business confiden-
tial," the office must comply with Subpart B of 40 C.F.R. Part 2 (see
below). The responsible office must also determine whether records are
exempt from disclosure and why.
CWA Compliance/Enforcement 11-25 Guidance Manual 1985
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Chapter Eleven The Freedom of Information Act
EPA must send a written Initial determination to the requestor not later
than the 10th working day after the date of receipt of the request in the
office of the Freedom of Information Officer. The determination must state
which of the requested records will, and which will not, be released, and
the reason for any denial. [40 C.F.R. §2.112.] Section 2.112(e) permits
extensions of time in certain limited circumstances.
Denials of FOIA Requests
EPA may deny an FQIA request only for any of the following reasons:
• The record is not known to exist;
• The record is not in EPA's possession;
* The record has been published in the Federal Register, or is other-
wise published and available for sale;
• A statute, regulation under Part 2, or a court order prohibits dis-
closure;
* The record is exempt from mandatory disclosure under 5 U.S.C.
Section 552(b), and EPA has decided that the public interest would
not be served by disclosure;
• Initial denial is requested because a third party must be consulted
in connection with a confidential business Information claim; or
• The record is believed to exist but has not yet been located
[40 C.F.R. §2.113(a)].
The initial determination must list which records are being withheld and
the basis for withholding them. However, if the acknowledgment of the
existence or nonexistence of records would, in and of itself, reveal confi-
dential business information, the initial determination should state that
the request is denied "because either the records do not exist or they are
exempt from mandatory disclosure ..." [40 C.F.R. §2.113(d).j If the
initial determination denies any part of the request, the determination
must state that the requestor may appeal the denial by written appeal
within 30 days of receipt of the determination. [40 C.F.R. §2.113(f).]
The Office of General Counsel decides appeals and must make the final
determination in writing In most cases within 20 working days of receipt of
the appeal. If the Office of General Counsel denies the appeal, the denial
must state which exemptions in 5 U.S.C. Section 552(b) apply and the
reasons for the denial of the appeal. The denial must also state that
judicial review of the determination may be obtained In the U.S. district
court in which the complainant resides, or in which the Agency records are
situated, or In the District of Columbia. [40 C.F.R. §2.116.]
CWA Compliance/Enforcement 11-26 Guidance Manual 1985
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Chapter Eleven The Freedom of Information Act
Exemptions
The FOIA provides nine categories of exemptions from mandatory disclosure
[40 C.F.R. §2.118]. If the record does not fall into one of the nine
categories listed below, EPA must disclose the record. Even if the record
does fall into one of the categories, EPA still must disclose it if no
important purpose would be served by withholding the documents. Those
categories of exemptions for which EPA will not disclose records unless
ordered to do so by a federal court or in exceptional circumstances are
noted with an asterisk. [See 40 C.F.R. §2.119.]
* Specifically authorized under criteria established by an Executive
Order to be kept secret in the interest of national defense or
foreign policy and are In fact properly classified pursuant to such
Executive Order.*
» Related solely to the internal personnel rules and practices of an
agency.
• Specifically exempted from disclosure by statute if the statute
requires the matters be withheld in such a manner as to leave no
discretion on the issue, or establishes particular criteria for
withholding, or refers to particular types of natters to be
withheld.*
• Trade secrets and commercial or financial information obtained from
a person that is privileged or confidential.*
* Interagency or intra-agency memorandums or letters that would not
be available by law to a party other than an agency in litigation
with the agency.
» Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy.*
• Investigatory records compiled for law enforcement purposes.
• Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions,*
* Geological and geophysical information and data, Including maps,
concerning wells.*
EPA charges requestors for costs associated with searching and reproducing
records. The fees, payment schedules, and waivers of fees are contained in
40 C.F.R. §2.120.
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Chapter Eleven The Freedom of Information Act
CWA Compliance/Enforcement11-28Guidance Manual 1985
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Chapter Eleven
7 Protection of Confidential Business
Information
In various circumstances, EPA employees handle Information from businesses
that Includes Information falling within "the concept of trade secrecy and
other related legal concepts which give (or may give) a business the right
to preserve the confidentiality of business information and to limit Its
use or disclosure by others In order that the business may obtain or retain
business advantages it derives from Its rights In the information." [40
C.F.R. §2.201(e).] Proper protection of confidential business information
(CBI) is extremely important; In fact Congress enacted the following
criminal provision more than 20 years before the founding of EPA:
Whoever, being an officer or employee of the United States
or of any department or agency thereof, . . . publishes,
divulges, discloses, or makes known in any manner or to
any extent not authorized by law any information coming to
him In the course of his employment or official duties or
by reason of any examination or Investigation made by, or
return, report or record made to or filed with, such de-
department or agency or officer or employee thereof, which
Information concerns or relates to the trade secrets, pro-
cesses, operations, style of work, or apparatus, or to the
identity, confidential statistical data, amount or source
of any income, profits, losses, or expenditures of any
person, firm, partnership, corporation, or association; or
permits any income return or copy thereof or any book con-
taining any abstract or particulars thereof to be seen or
examined by any person except as provided by law; shall be
fined not more than §1,000, or imprisoned not more than
one year, or both; and shall be removed from office or
employment. [18 U.S.C. ^1905.]
EPA regulations at 40 C.F.R. Part 2, Subpart B, specifically govern the
handling of CBI under all EPA statutes (40 C.F.R. $2.302 applies to CBI
under the CWA). The basic rules of Subpart B apply except to the extent
modified or superseded by Section 2.302 or 40 C.F.R. |122.7. [40 C.F.R.
*2.202(c).]
Effluent data are not entitled to confidential treatment; such data are
defined for purposes of the confidentiality regulations at 40 C.F.R.
^2.302. Permits, permit applicants, and names and addresses of permit
CWA Compliance/Enforcement 11-29 Guidance Manual 1985
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Chapter Eleven Protection of Confidential Business Information.
three working days; see Section 2.204(c)(2)(li)], then the Information is
not entitled to confidential treatment.
If the company makes a claim, the EPA office must make a preliminary deter-
mination after considering 40 C.F.R. §§2.203 and 2.208 and any previous
determinations under Subpart B that might be applicable.
If the EPA office determines that the information might be CBI, the office
must:
1. Furnish a written notice to each affected company stating that EPA
is determining whether the information is entitled to confidential
treatment and affording the company an opportunity to comment;
2, Furnish a determination to the person requesting such Information
that EPA Is inquiring into whether the Information Is entitled to
confidential treatment; that, therefore the request is initially
denied; and, that after further inquiry the Office of General
Counsel will issue a final determination; and
3. Refer the matter to the Office of General Counsel for a final
confidentiality determination. [See 40 C.F.R. §2.205.]
CWA Compliance/Enforcement 11-31 Guidance Manual 1985
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