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
CWA Compliance/Enforcement             iii             Guidance Manual 1985

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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
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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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Chapter One	Overview of the Clean Water Act


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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Chapter One	Overview of the Clean Water Act


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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Chapter One	Overview of the Clean Water Act
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.
CWA Compliance/Enforcement              1-26           Guidance Manual 1985

-------
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
CWA Compliance/Enforcement              1-27           Guidance Manual 1985

-------
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.
CWA Compliance/Enforcement              1-28           Guidance Manual 1985

-------
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

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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

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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

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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

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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

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Chapter Two                               	                   Contents
CWA Compliance/Enforcement              2-ii           Guidance Manual 1985

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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

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Chapter Two       	  	     	         Introduction
CWA Compliance/Enforcement               2-2           Guidance Manual 1985

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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

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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

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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

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Chapter Two	Primary Office Responsibilities
CWA Compliance/Enforcement              2-8            Guidance Manual 1985

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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

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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

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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

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Chapter Two               		Organizational Charts
CWA Compliance/Enforcement              2-14           Guidance Manual 1985

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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

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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

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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

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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

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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

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      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

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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

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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

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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

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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

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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

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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

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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

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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.
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Chapter Three             	   	Introduction
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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.
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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.
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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.
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Chapter Three	 Self-Monitoring and Other Information Gathering
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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.
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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.
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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
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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).
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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;
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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
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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.
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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.
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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
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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.
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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.
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Chapter Three	Inspections
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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

-------
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

-------
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

-------
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

-------
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

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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

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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

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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

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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

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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

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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

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Chapter Three                 	Exhibits
CWA Compliance/Enforcement              3-42           Guidance Manual 1985

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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

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Chapter Four	Contents
CHA Compliance/Enforcement            4-li             Guidance Manual 1985

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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

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Chapter Four	Introduction
CWA. Compliance/Enforcement             4-2             Guidance Manual 1985

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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

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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

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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

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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

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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

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Chapter Four	Compliance File Review
CWA Compliance/Enforcement             4-8             Guidance Manual 1985

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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

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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

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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

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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

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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

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Chapter Four	Exhibits
CWA Compliance/Enforcement            4-16              Guidance Manual  1985

-------
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-------
Chapter Four
                         Exhibit 4-2
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 CWA Compliance/Enforcement
4-18
Guidance Manual 1985

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Chapter Five                     	        	Contents
 CWA Compliance/Enforcement            5-ii             Guidance Manual 1985

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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Chapter Six	Contents
CWA Compliance/Enforcement               6-ii           Guidance  Manual  1985

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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.
CWA Compliance/Enforcement               6-1           Guidance Manual 1985

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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.
CWA Compliance/Enforcement               6-3           Guidance Manual 1985

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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
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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
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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.
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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

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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):

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

-------
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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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
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                       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

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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

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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

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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

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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

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Chapter Six                                      	,	Exhibit 6-6
                                                     Attachment
                                                     Diagnostic
                                                     Evaluation
                                  Attachment

                                (Preliminary)

                            DIAGNOSTIC EVALUATION
CW4 CoBplianee/lnforceaent               6-79            ftiidance Manual  1985

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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

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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

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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
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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.
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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.
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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;
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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.
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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)].
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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.
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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.
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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
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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).
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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.
 CWA Compliance/Enforcement            8-24            Guidance Manual 1985

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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.
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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.
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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
                                          
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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 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

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 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

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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
                                     -13-

                  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*
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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
          1

          2

          3

          4

          5

          6

          7

          8

          9

         10

         11

         12



         14

         15

         16

         17

         18

         19

         20

         21

         22

         ~23

         24

         25

         26

         27

         28
   •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
         Guidance  Manual 1985

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Chapter Eight
                                                                                 Exhibit  8-11
            1
            2
            3
            4
            5
            6
            7
            a
            9
            10
            n
            12
            13
            14
            15
            16
            17
            18
            IS
            20
            21
            22
           1*3
            24
            25
            26
            27
            28
      "=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
 CWA Compliance/Enforcement
                                  8-136
Guidance  Manual  1985

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Chapter Eight
                                                                Exhibit  8-11
           1
           2
           3
           4
           5
           6
           7
           8
           9
          10
          11
          12
          13
          14
          15
          18
          17
          18
          19
          20
          21
          22
          23
          24
          25
          26
          27
          28
    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
 CWA Compliance/Enforcement
                                  8-137
Guidance  Manual  1985

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Chapter Eight
                                                              Exhibit  8-11
             1
            2
            3
            4
            5
            S
            7
            3
            9
           10
           11
           12
           13
           >14
           15
           16
           17
           18
           19
           20
           21
           22
           23
           24
           25
           28
           27
           28
     •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
CWA Compliance/Enforcement
                                8-138
Guidance  Manual  1985

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Chapter Eight
                                                               Exhibit 8-11
1

2

3
4
5

6

7
8

9

10
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26
27
- 28
•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


 CWA Compliance/Enforcement
8-140
Guidance Manual 1985

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Chapter Eight
                                                              Exhibit  8-11
           ,1
            2
            3
            4
            5
            S
            7
            8
            9
           10
           11
           12
           13
           14
           IS
           16
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           18
           19
           20
           21
           22
           23
           24
           25
           26
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           28
     •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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                                8-141
Guidance  Manual  1985

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Chapter Eight
                                                                Exhibit  8-11
          i
          2
          3
          4
          S
          e
          7
          8
          9
         10
         11
         12
         13
         14
         15
         16
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         18
         19
         20
         21
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         28
   'arm CBO '83
   S-8-76 DOJ
              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
CWA Compliance/Enforcement
                                 8-142
Guidance  Manual  1985

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Chapter Eight
                                                                Exhibit 8-11
          1
          2
          3
          4
          5
          i
          7
          8
          9
         10
         11
         12
         13
         14
         15
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    ;,m C8B 183
     •3-76 DOJ
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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                                  8-143
Guidance  Manual  1985

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Chapter Eight
                                                                  Exhibit 8-11
        i
        2
        3
        4
        5
        6
        7
        8
        9
       10
       11
       12
       13
       ''14
       15
       16
       17
       18
       19
       20
       21
       22
       23
       24
       25
       26
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       28
   m C8D-183
    76 DO;
                     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
 CWA Compliance/Enforcement
                                    8-144
Guidance  Manual  1985

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Chapter Eight
                                                                  Exhibit 8-11
        1
        2
        3
        4
        5
        6
        7
        8
        9
       10
       11
       12
       13
       14
       15
       16
       17
       18
       19
       20
       21
       22
       23
       24
       25
       26
       27
       28
     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
 CWA Compliance/Enforcement
                                    8-145
Guidance  Manual  1985

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Chapter Eight
                                                                  Exhibit 8-11
         1
        2
        3
        4
        S
        6
        7
        8
        9
        10
        11
        12
        13
        14
        IS
        16
        17
        18
        19
        20
        21
        22
        23
        24
        25
        26
        27
      '  28
 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
CWA  Compliance/Enforcement
                                   8-146
Guidance  Manual  1985

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Chapter Eight
                                                                Exhibit  8-11
          i
          2
          3
          4
          5
          6
          7
          8
          3
         10
         11
         12
         15
         16
         17
         18
         19
         20
         21
         22
         23
         24
         25
         26
         27
       ' 28
   c-ni OBO-183
   :4T6 SO!
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
 CWA Compliance/Enforcement
                                  8-147
Guidance  Manual  1985

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Chapter Eight
                                                                                 Exhibit 8-11
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   tim OBQ-183
   -.8.76 DOJ
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
 CWA Compliance/Enforcement
                                  8-148
Guidance  Manual  1985

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Chapter Eight
                                                                Exhibit  8-11
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   -arm 080-183
   2-3-76 DQJ
          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
CWA Compliance/Enforcement
                                 8-149
Guidance  Manual  1985

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Chapter Eight
                                                                 Exhibit 8-11
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   •m C9D 18)
   >58 DO;
              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
CWA Compliance/Enforcement
                                  8-150
Guidance  Manual  L98S

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Chapter Eight
                                                                Exhibit 8-11
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   vm O8D,)8S
   7-8-76 DOJ
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
CWA  Compliance/Enforcement
                                  8-151
                                   Guidance Manual 1985

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Chapter  Eight
                                                                  Exhibit 8-11
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IS

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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
CtfA Compliance/Enforcement
                                      8-152
Guidance Manual  1985

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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
CWA Compliance/Enforcement            8-153              Guidance Manual 1985

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Chapter Eight	       Exhibit  8-12
                                      - 2 -
                         /
         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
CWA Compliance/Enforcement              8-154            Guidance Manual 1985

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Chapter Eight                    	Exhibit  8-12
                                    - 3 -

       "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:
CWA  Compliance/Enforcement              8-155            Guidance Manual 198S

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Chapter Eight	                  Exhibit 8-12
                                     - 4 -
                 (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.
 CWA Compliance/Enforcement              8-156            Guidance Manual 1985

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Chapter Eight                                         	 Exhibit 8-12
                                      -  5  -
         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
CWA Compliance/Enforcement              8-157            Guidance  Manual 1985

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Chapter Eight         	    	Exhibit 8-12
                                       - 6 -

          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;
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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.
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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
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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 
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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).
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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
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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
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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
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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
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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

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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
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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

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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

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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

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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

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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

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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).
CWA Compliance/Enforcement            10-2              Guidance Manual 1985

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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•
CWA Compliance/Enforcement10-4Guidance Manual 1985

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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;
CWA Compliance/Enforcement            10-13            Guidance Manual 1985

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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
 CWA Compliance/Enforcement            10-14            Guidance Manual 1985

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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.
CWA Compliance/Enforcement:            10-15            Guidance Manual 1985

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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

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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

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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

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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

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                                                                                                                                      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

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    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*

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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Chapter Ten	Exhibit 10-3






                   Demand Letter for Stipulated Penalties
                                 (Reserved)
CWA Compliance/Enforcement            10-44            Guidance Manual 1985

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Chapter Ten	Exhibit 10-3
                                 (Reserved)
CWA Enforcement/Compliance            10-45            Guidance Manual  1985

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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

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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

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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.
 CWA Compliance/Enforcement11-1Guidance Manual  1985

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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

CWA Compliance/Enforcement11-3Guidance Manual 1985

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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
 CWA Compliance/Enforcement11-4Guidance Manual 1985

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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
CWA Compliance/Enforcement              11-5           Guidance Manual 1985

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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
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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.
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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.
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Chapter Eleven	Issuance of Best Professional Judgment Permits
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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).
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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.
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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.
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Chapter Eleven	Special NPDES Evidentiary Hearing Procedures
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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.
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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.]
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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
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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
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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.]
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