United Stnim
Cnviror.rrwntiil Protection
Agency
Office of Water
Enforcsment and Permits
Washington. DC 2O460
1987
Water
Guidance for
Reporting and Evaluating
POTW Noncompliance
with Pretreatment
Implementation
Requirements
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
September 30, 1987
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Guidance for Reporting and Evaluating POTW Noncompliance
with Pretreatment Implementation Requirements
FROM: JamelR. Elder, Director
mice of Water Enforcement and Permits (EN-335)
TO: Regional Water Management Division Directors,
NPDES State Pretreatment Program Directors
the Office of Water Enforcement and Permits has completed development of a guidance for evaluating
and reporting noncompliance by Publicly Owned Treatment Works (POTWs) that have failed to
implement their approved pretreatment programs. The Guidance identifies criteria for evaluating the
principal POTW activities that are essential to fully implement most local programs. POTWs that meet
the criteria in the definition should be reported by EPA and approved States on the Quarterly
Noncompliance Report (QNCR).
These criteria were developed by an EPA workgroup and presented to States and Regions at the
National Pretreatment Coordinators Meeting, December 17, 1986. Draft guidance was developed and
circulated for comment in May 1987. In general, your comments supported the criteria that were
proposed in the draft. We also received comments from former PIRT members. As a result, the final
guidance has been modified in two areas. Under the criteria for POTW inspections of SIUs, the percent
coverage has been increased to 80% of the levels required in the permit or approved program. If no
specific permit or program requirement was established, the guidance recommends reporting any POTW
that failed to sample or inspect at least 50% of its SIUs in a 12 month period. The second area of change
was for enforcement of pretreatment standards. Several PIRT comments wanted a specific criterion for
failure to develop adequate local limits. Instead of adding new criteria, we expanded the discussions
under the criteria for issuance of SIU control mechanisms, implementation of pretreatment standards,
and enforcement against interference and pass-through. The discussions include minimum local limit
requirements and recommended procedures to resolve these and other deficiencies of approved
programs.
For FY 1988, EPA Regions and States should use this guidance to identify POTWs that are failing to
implement their approved programs and should report them on the QNCR. While formal enforcement
is not automatically required as a response to noncompliance reported on the QNCR, Regions and
approved States should seriously consider the use of an administrative order (and, perhaps, with a
penalty depending on the egregiousness of the lack of implementation) to establish a schedule to correct
(he violations. The Strategic Planning and Management System for FY 1988 contains two measures:
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WQE-12 which addresses the POTWs compliance assessment process; and WQE-13 which will track
how frequently POTW noncompliance is addressed by formal enforcement. Further explanation of this
measure can be found in “Definitions and Performance Expectations” in “A Guide to the Office of
Water Accountability System and Mid-Year Evaluations” (Fiscal Year 1988). EPA Regions should assist
States in applying the definition of reportable noncompliance, identifying noncomplying PO1’Ws, and
tracking cases where formal enforcement is taken. The Office of Enforcement and Compliance
Monitoring is developing more specific guidance on the criteria for judicial referrals and the burden of
proof for demonstrating noncompliance for POTW pretreatment implementation. That guidance will
be distributed to the Regions for review before it is made final.
If you have questions regarding the guidance or SPMS reporting please contact Bill Jordan, Director,
Enforcement Division, or Anne Lassiter, Chief, Policy Development Branch (202/475-8307). The staff
contact is Ed Bender (202/475-8331).
cc: Glenn Unterberger
Gerald Bryan
Pretreatment Coordinators, EPA and States
Regional Compliance Branch Chiefs
Regional Counsels
Rebecca Hanmer
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GUIDANCE FOR
REPORTING AND EVALUATING
POTW NONCOMPLIANCE WITH
PRETREATMENT REQUIREMENTS
United States Environmental Protection Agency
Office of Water
Office of Water Enforcement Permits
Washington, D.C.
September 30,1987
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TABLE OF CONTENTS
I. Introduction 1
A. Background 1
B. Existing Rule 1
C. Definition of Reportable Noncompliance 2
II. Applying the Criteria 4
A. Failure to Issue Control Mechanisms to Significant IUS in
a Timely Fashion 4
B. Failure to Inspect Significant lUs 5
C. Failure to Establish and Enforce Iii Self-Monitoring
where Required by the Approved Program 5
D. Failure to Implement Pretreatment Standards 6
E. Failure to Enforce Against Pass-Through and Interference 8
F. Failure to Submit Pretreatment Reports Within 30 days 9
0. Failure to meet Compliance Milestones by 90 days or more 9
H. Any Other Violation(s) of Concern to the Approval Authority 9
III. Reporting on the QNCR 10
A. Format 10
B. Description of the Noncompliance 10
C. Compliance Status 11
LV. Examples of Reporting on the QNCR 12
A. Example 1 12
B. Example 2 13
V. Compliance Evaluation 14
VI. Response to Noncompliance 17
VII. Summary 18
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1. INTRODUCTION
A. Background
EPA Regions and NPDES States must report certain permit violations on the Quarterly Noncompliance
Report (QNCR) which meet criteria identified in the existing NPDES Regulations (40 CFR Part 123.45).
One of the violations that must be reported is a POTW’s failure to adequately implement its approved
pretreatment program. The interpretation of adequate implementation is currently left to the discretion
of the Region and approved States.
The Office of Water Enforcement and Permits has developed a definition of reportable noncompliance
for POTW pretreatment program implementation which establishes criteria to evaluate adequate
implementation. Although the size and complexity of local pretreatment programs varies greatly among
Control Authorities, all POTWs must perform certain basic activities to implement their pretreatment
programs. The defmition of reportable noncompliance establishes criteria in five basic areas of POTW
program implementation: IU control mechanisms; compliance monitoring and inspections; POTW
enforcement; POTW reporting to the Approval Authority; and other POTW implementation
requirements.
The purpose of this Guidance is to explain the basis for the definition and its criteria, provide examples
of how to apply the the criteria, explain how to report noncompliance for POTW pretreatment program
implementation on the QNCR and suggest appropriate responses to noncompliance. This Guidance
should beL used to fulfill requirements for reporting POTW pretreatment noncompliance that are
described in the FY 1988 Agency Operating Guidance and included as a performance measure for EPA
and approved State programs under the Strategic Planning and Management System (SPMS).
B. Existing Rule
The QNCR is the basic mechanism for reporting violations of NPDES permit requirements. Major
POTW permittees’ must be reported on the QNCR:
(1) if they are under an enforcement order for previous permit violations; or
(2) if their noncompliance meets specific criteria (Category I noncompliance); or
(3) if the regulatory agency believes the violation(s) causes problems or is otherwise of concern
(Category II noncompliance).
The specific requirements of the existing rule which relate to pretreatment program implementation are
as follows:
1. Enforcement Orders - All POTWs that are under existing enforcement orders (e.g.,
administrative orders, judicial orders, or consent decrees) for violations of pretreatment
implementation requirements must be listed on the QNCR and the compliance status must
be reported on each subsequent QNCR until the POTW returns to full compliance with the
implementation requirements.
1 Major POTW permittees are those with a dry weather flow of at least 1 million gallons per day or a BOD/TSS loading
equivalent to a population of at least 10,000 people. Any POTW (including a minor POTW) with an approved local
pretreatment program should have its pretreatment violations reported on the QNCR.
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2. Category I pretreatment program noncompliance - A POTW must be reported on the QNCR:
a) if it violates any requirements of an enforcement order, or
b) if it has failed to submit a pretreatment report (e.g., to submit an Annual Report or to
publish a list of significant violators) within 30 days from the due date specified in the
permit or enforcement order, or
c) if it has failed to complete a pretreatment milestone within 90 days from the due date
specified in the permit or enforcement order.
3. Category II- A POTW must be reported on the QNCR if the instance of noncompliance is:
a) a pass-through of pollutants which causes or has the potential to cause a water quality
problem or health problem,
b) a failure of an approved POTW to implement its approved pro rum adequately [ emphasis
added], including failure to enforce industrial pretreatment requirements on industrial
users as required by the approved program, 2 or
c) any other violation or group of violations which the Director or Regional Administrator
considers to be of substantial concern.
C. Definition of Reportable Noncompliance
OWEP has developed criteria to evaluate local program implementation that explain and clarify the
existing regulations. As stated, these criteria highlight activities that control authorities should use to
implement their programs. These activities include:
1) establishment of IU control mechanisms,
2) POTW compliance monitoring and inspections,
3) POTW enforcement of pretreatment requirements,
4) POTW reporting to the Approval Authority, and
5) Other POTW implementation requirements.
Collectively, these activities are the framework for the defmition of reportable noncompliance (Table
1), which should be used by EPA Regions and approved States to report POTW noncompliance with
pretreatment requirements on the QNCR.
The following table summarizes the reportable noncompliance criteria. A more detailed explanation of
their application is contained in Section II of this guidance.
2 The permit should require compliance with 40 CFR part Section 403, and the approved program. Thus the permit is the
basis for enforcing requirements of the approved program or the Part 403 regulations.
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TABLE 1
DEFINITION OF REPORTABLE NONCOMPLIANCE
A POTW should be reported on the QNCR if the violation of its approved pretreatment program, its
NPDES permit or an enforcement order 3 meets one or more of the following lettered criteria for
implementation of its approved pretreatment program:
I. Issuance of IU Control Mechanisms
A) Failed to issue, reissue, or ratify industrial user permits, contracts, or other control
mechanisms, where required, for “significant industrial users”, within six months after
program approval. Thereafter, each “significant industrial user” control mechanism should
be reissued within 90 days of the date required in the approved program, NPDES permit,
or an enforcement order.
II. POTW Compliance Monitoring and Inspections
B) Failed to conduct at least eighty percent of the inspections and samplings of “significant
industrial users” required by the permit, the approved program, or an enforcement order.
C) Failed to establish and enforce self-monitoring requirements that are necessary to monitor
SIU compliance as required by the approved program, the NPDES permit, or an enforcement
order.
HI. POTW Enforcement
D) Failed to develop, implement, and enforce pretreatment standards (including categorical
standards and local limits) in an effective and timely manner or as required by the approved
program, NPDES permit, or an enforcement order.
E) Failed to undertake effective enforcement against the industrial user(s) for instances of
pass-through and interference as defined in 40 CFR Section 403.3 and required by Section
403.5 and defined in the approved program.
LV. POTW Reporting to the Approval Authority
F) Failed to submit a pretreatment report (e.g., annual report or publication of significant
violators) to the Approval Authority within 30 days of the due date specified in the NPDES
permit, enforcement order, or approved program. 4
V. Other POTW Implementation Violations
0) Failed to complete a pretreatment implementation compliance schedule milestone within
90 days of the due date specified in the NPDES permit, enforcement order, or approved
program. 4
H) Any other violation or group of violations of local program implementation requirements
based on the NPDES permit, approved program or 40 CFR Part 403 which the Director or
Regional Administrator considers to be of substantial concern. 4
The term enforcement order means an administrative order, judicial order or consent decree. (See Section 123.45)
Existing ONCR criterion (40 CFR Part 123.45); the violation be reported.
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II. APPLYING THE CRITERIA
The criteria for reporting POTW noncompliance with pretreatment requirements are based on the
General Pretreatment Regulations [ particularly Section 403.8(0(2)], approved pretreatment programs,
and NPDES permit conditions (particularly Part III). Where specific conditions, deadlines, or
procedures are specified in the regulations or the approved program, and incorporated or referenced
in the NPDES permit, PO1’W performance should be evaluated against those requirements. Any failure
to meet those requirements is a violation. The criteria included in this Guidance establish a basis for
determining when a violation or series of violations should be reported on the QNCR for failure to
implement a pretreatment program. If the POTW is identified as meeting one or more of the criteria,
the PO1’W should be considered in reportable noncompliance and reported on the QNCR.
POTW performance should be evaluated using the information routinely obtained from pretreatment
compliance inspections, annual reports, pretreatment audits and Discharge Monitoring Reports
(DMRs) as well as any special sources of information. All annual reports should include a Pretreatment
Performance Summary of SIU compliance information. 5 This summary should be useful to assess the
effectiveness of pretreatment implementation. Pretreatment staff should review the approved program,
the NPDES permit, and any correspondence with the POTW regarding its pretreatment program to
identify any specific procedures, levels of performance, or milestones that may apply to implementation
of the particular program. Where these requirements exist, they should be recorded on fact sheets and
possibly added to the specific requirements in the permit.
ISSUANCE OF IU CONTROL MECHANISMS
A. Failure to Issue Control Mechanisms to Significant LUs in a Timely Fashion
The POTW can use contracts 6 , individual permits, or sewer use ordinances as control mechanisms.
Control mechanisms establish enforceable limits, monitoring conditions, and reporting requirements
for the industrial user. In some cases, an approved program may have a sewer use ordinance that defines
the limits (including local limits) and a separate mechanism for establishing monitoring conditions at
each facility. Technically, if a control mechanism expires, control of the SIU and enforcement of some
pretreatment requirements may be suspended. Therefore, timely issuance and renewal of all control
mechanisms is essential.
All Control Authorities must apply pretreatment standards to their industrial users. Where the approved
program requires that individual control mechanisms be developed for significant industrial users, but
does not include a timeframe, the POTW should be given a deadline to issue them. Some States include
schedules for issuing specific SIU permits in a POTW’s NPDES permit. Where the POTW has missed
two or more deadlines specified in a permit or enforcement order for issuing individual control
mechanisms by 90 days or more, the violation must be reported on the QNCR as a schedule violation.
In general, EPA believes that where individual control mechanisms are required by the approved
program, the POTW should issue control mechanisms to all SIUs within six months after the program
is approved or after new pretreatment standards (categorical or local limits) are established, so that
full implementation can be evaluated by an audit within one year after approval. Any delay in this
schedule should be reported on the QNCR.
USEPA. Pretreatment Compliance Monitoring and Enforcement Guidance (PCME). 1986. Recommended specific data.
EPA proposed rules for annual reports that include the PCME data
6 Proposed rule change to 40 CFR 403 on June 12, 1986 (51 21454) would make contracts an unacceptable control
mechanism to obtain penalties
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The POTW should also maintain and update its inventory of SIUs. EPA is considering further
rulemaking to require annual updates of the LU inventory by all POTWs. The LU inventory is the
foundation for applying pretreatment controls and monitoring IU compliance. PO1’Ws that fail to
maintain an adequate inventory of SIUs and annually update the inventory should be reported on the
QNCR. Where necessary, permits should be modified to require routine updates of the LU inventory.
POTW COMPLIANCE MONITORING AND INSPECTIONS
B. Failure to Inspect Significant Industrial Users
POTWs are required to possess the legal authority to carry out all inspection, surveillance, and
monitoring procedures necessary to verify the compliance status of their industrial users independent
of information provided by the industrial user [ 40 CFR 403.8 (0(4)]. In the PCME Guidance, EPA
recommended that the Control Authority conduct at least one inspection and/or sampling visit for each
significant industrial user annually.
The approved program and/or the NPDES permit may establish other requirements for inspections or
use a different definition of significant industrial user. In those cases where the permit or approved
program identifies specific requirements for inspection and sampling, these requirements should be
used as a basis to evaluate POTW compliance. If the PO1’W has failed to inspect or sample at least 80%
of the significant industrial users as required by the permit or the approved program, the POTW should
be reported on the QNCR for its failure inspect. POTW sampling of all lUs is essential to evaluate LU
compliance where lUs do not submit self-monitoring information. In the absence of specific inspection
coverage requirements in the approved program or permit, the Approval Authority should report any
POTW which has not inspected or sampled at least 50% of all SIUs within a 12 month period. In addition,
if the approved program or permit does not contain specific criteria, the Approval Authority should
modify the NPDES permit to be sure that the POTW conducts inspections or sampling visits of all
SIUs at least annually.
C. Failure to Establish and Enforce IU Self-Monitoring where Required by the Approved Program
All categorical lUs are required to report at least twice a year [ 40 CFR (403.12)]. POTWs also have
authority to require monitoring and reporting from non-categorical lUs. As a result, most POTWs have
established self-monitoring requirements for S1Us as a means of securing adequate data to assess SIU
compliance at less cost to the POTW than if all data were developed by the PO1’W through sampling.
Where a program does not require SIU self-monitoring, the visits and inspections conducted by the
POTW must be sufficient in scope or frequency to assure compliance.
LU self-monitoring requirements should specify the location, frequency, and method of sampling the
wastewater; the procedure for analysis and calculation of the result; the limits; and the reporting
requirements. These self-monitoring requirements may be applied, in general, through an ordinance,
through specific control mechanisms, or through a combination of general and specific mechanisms.
Where self-monitoring is used, it should be required frequently enough to accurately demonstrate the
continuing compliance of the SRi. A POTW may use a combination of Sit self-monitoring and its own
data collection to evaluate SIU compliance with its limits. As a guide, EPA has published self-monitoring
frequencies for significant industrial users that are related to their process wastestream flow rates. (See
section 2.2 of the PCME Guidance).
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In most situations, effluent monitoring information should be available so that the compliance of a SIU
with a monthly, 4-day or other average limit can be determined at least once a quarter . This frequency
is higher than the implied minimum in the regulations; however, this frequency is more likely to promote
continued compliance and a more timely POTW response to violations. Under proposed rules 7 for
pretreatment, SIU violations would trigger additional self-monitoring. For each violation the STU
detects, it would be required to resample and submit both sample results for review by the Control
Authority.
In evaluating compliance with this criterion, EPA and approved States should examine the requirements
of the permit and determine whether the Control Authority has established self-monitoring
requirements as required. Where appropriate requirements have been established, the Control
Authority must ensure that SIUs comply with all aspects of the requirements and report in the manner
required in the control mechanism. Where the Control Authority fails to establish appropriate
requirements or to adequately enforce (e.g., POTW should respond in writing to all SNC violations for
lU self-monitoring) these requirements once established, the Control Authority should be considered
in noncompliance and listed on the QNCR.
POTW ENFORCEMENT
D. Failure to Implement Pretreatment Standards
1. Application of Local Limits
Implementation of pretreatment standards requires the development of local limits as well as the
enforcement of all pretreatment standards. The discussion of local limits in the preamble to the 1981
General Pretreatment Regulations states in part: “These [ local] limits are developed initially as a
prerequisite to POTW pretreatment program approval and are updated thereafter as necessary to reflect
changing conditions at the POTW.” In order to comply with their permit and the regulations, each
POTW should have already conducted a technical evaluation, using available techniques, to determine
the maximum allowable treatment plant headworks (influent) loading for six metals (cadmium,
chromium, copper, lead, nickel and zinc) and other pollutants which have reasonable potential for
pass-through, interference, or sludge contamination. Therefore, any POTW that has not conducted this
evaluation and adopted appropriate local limits should be reported on the QNCR for failure to
adequately implement their approved pretreatment program.
If any PO1’W program has already been approved without the analysis of the impact of the pollutants
of concern and adoption of local limits, the Approval Authority should report the POTW on the QNCR
and immediately require the POTW to initiate an analysis and to adopt appropriate local limits. This
requirement should be incorporated in the POTW’s NPDES permit as soon as feasible. Where a POTW
has previously adopted local limits but has not demonstrated that those limits are based on sound
technical analysis, the Approval Authority should require the PO1’W to demonstrate that the local limits
are sufficiently stringent to protect against pass-through, interference and sludge contamination. POTWs
which cannot demonstrate that their limits provide adequate protection should be reported on the
QNCR and required to revise those limits within a specific time set forth in a permit modification.
See proposed amendments to General Pretreatment Regulations. 51 FR 2154, June 12, 1986.
8 See discussion from Rebecca Hannier, Director, OWEP. USEPA Memorandum “Local Limits Requirements for POTW
Pretreatment Programs”. August 5, 1985.
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2. POTW Enforcement and IU Significant Noncompliance
The Control Authority must have the legal authority--usually expressed through a sewer use
ordinance--to require the development of compliance schedules by lUs and to obtain remedies for
noncompliance, including injunctive relief and civil or criminal penalties [ 40 CFR 403.8(f)(iv) and (vi)].
In addition, the Control Authority must have an attorney’s statement, which among other things,
identifies how the Control Authority will ensure compliance with pretreatment standards and
requirements and enforce them in the event of noncompliance by industrial users [ Section
403.9(b)(1)(lli)]. Further procedures for enforcement may be contained in the approved program, sewer
use ordinance or NPDES permit.
The attorney’s statement and compliance monitoring sections of the approved program, taken in
combination with the NPDES permit, may provide a comprehensive set of enforcement procedures
which the POTW should follow to ensure the compliance of industrial users with pretreatment standards.
Where such procedures are inadequate, EPA strongly recommends that POTWs develop written
enforcement procedures which describe how and when enforcement authorities are applied (See section
3.3 of the PCME). These procedures serve to inform industrial users of the likely response to violations
and assist the POTW in applying sanctions in an equitable manner.
The Approval Authority must periodically evaluate whether the POTW is effectively enforcing
pretreatment standards. In evaluating performance, the Approval Authority should examine both
whether the POTW is following its enforcement procedures and whether the program is effective in
ensuring compliance with pretreatment standards. One of the indicators the Approval Authority should
use in evaluating effectiveness is the level of compliance of SIUs with pretreatment standards. Where
the level of significant noncompliance (SNC) 9 of S1Us is 20% or greater, there is a reasonable
presumption that the Control Authority is either not effectively enforcing its procedures or that the
procedures are inadequate. The burden of proving that this is not the case should fall on the Control
Authority.
EPA and NPDES States have been using a definition of significant noncompliance for major permittees
to set priorities for formal enforcement and as a tool to evaluate the effectiveness of Regional and State
compliance programs. Major industrial permittees, a subset of all industrial permittees, generally have
the largest direct discharge flows, and highest toxic pollutant loadings. Therefore their noncompliance
has the greatest potential to adversely affect water quality or pose human health problems. In terms of
priorities, the significant industrial users within a PO1’W should be considered to be similiar to the
major industrial permittees by the approved State or EPA Region.
Enforcement followup by EPA Regions and approved States is generally considered to be effective if
the levels of signfficant noncompliance among major industrial permittees is maintained below 6%.
Given the fact that most approved pretreatment programs are still relatively inexperienced, a 20% level
of SNC for SIUs appears to be a reasonable starting point to assume that POTW enforcement is
inadequate. As PO1’Ws gain experience, the level of SNC should decrease, and thus, this definition can
be made more stringent.
See SNC definition included in section 3.4.1 of the PCME. The ANPR for the Domestic Sewage Study recommended that
the definition of SNC in the PCME be incorporated into the definition of significant violators for industrial users (Section
403.8Q)(2).
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3. Enforcement Response Procedures
Although most approved programs describe the authorities that are available to the POTW and the
procedures for addressing SIU noncompliance, few programs specify what action will be taken or when
it should occur. POTWs have been required to develop enforcement response procedures under consent
decrees with specific timeframes for initiating informal to formal enforcement. These timeframes range
from 14 to 60 days.
While a specific timeframe for POTW action against an SJU in SNC has not been set, as a general rule
EPA recommends that a POTW respond initially to each violation within 30 days from the date the
violation is reported or identified to the POTW As part of the initial responses, the POTW should
evaluate the violation and contact the SIU (e.g., telephone call, warning letter, or meeting). Where
formal enforcement is needed as a subsequent enforcement response, the appropriate timeframe is 90
days from the date of the initial response to the violation. This timeframe is equivalent to the expectation
for initiating formal enforcement in the NPDES program.
The Approval Authority should review the Control Authority’s actions carefully to determine whether
it has evaluated the violations and contacted the SIU in a timely manner, escalating the response when
compliance is not achieved. If this review reveals that the Control Authority has often not followed its
own procedures or that the Control Authority has not appropriately used its full authorities to achieve
compliance by its SIUs, the Control Authority should be judged to be in noncompliance.
Where the Control Authority is judged to have followed its procedures in almost all cases, but the level
of significant noncompliance among SIUs is 20% or greater, the adequacy of Control Authority
enforcement procedures should be reviewed. If the procedures are found to be inadequate, the
procedures should be modified. The Approval Authority might require modification of the approved
program, through the NPDES permit or possibly an administrative order requiring the adoption of new
procedures along the lines of those included in the PCME Guidance. The Control Authority should be
listed on the QNCR in noncompliance until it has taken those actions required of it by the Approval
Authority.
Even where the SIUs have a low level of significant noncompliance, the Approval Authority should
review the performance of the Control Authority to ensure that it is, in fact, implementing its
enforcement procedures and that the procedures are adequate to obtain remedies for noncompliance.
For example, where a Control Authority fails to identify all violations or fails to respond to violations
when they do occur, the POTW should normally be identified as in noncompliance on the QNCR.
E. Failure to Enforce Against Pass-Through and Interference
Definitions of industrial user discharges that interfere with a POTW or pass-through the treatment
works were promulgated January 14, 1987 (52 FR 1586).
Interference generally involves the discharge of a pollutant(s) which reduces the effectiveness of
treatment such that an NPDES permit limit is exceeded. The pollutant that caused the interference will
be different from the pollutant in the permit that was exceeded. (If the pollutant that causes the violation
is the same as the pollutant in the permit that was exceeded, pass-through has occurred.) The POTW
is responsible for identifying and controffing the discharge of pollutants from lUs that may inhibit or
disrupt the plant operations or the use and disposal of sludge. The POTW must monitor LU contributions
and establish local limits to protect its sludge.
The PO1’W should have written procedures to investigate, control and eliminate interference and
pass-through. Whenever interference or pass-through is identified, the PO1’W should apply such
procedures to correct the problem. Section 403.5 of the General Pretreatment Regulations requires
that the POTW develop and enforce local limits to prevent interference and pass-through from industrial
contributors to the treatment works. If a POTW has permit limit violations that are attributable to
industrial loadings to its plant, it is also a violation of Section 403.5. The POTW should be reported on
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the QNCR for failure to enforce against pass-through and/or interference, if the POTW has two or
more instances of pass-through and interference in any month or 3 or more instances in a quarter.
The POTW is responsible for monitoring to detect these discharges and enforcing against the 113 where
it contributes to permit exceedances. The PCME Guidance recommends one inspection and/or sampling
visit each year for each SIU. Many Approval Authorities require the POTW through its NPDES permit,
to monitor the influent, effluent, and sludge at least annually to evaluate the potential for interference
and pass-through. In a few cases, special monitoring has been required for septage and other waste
haulers or to monitor corrective actions for past violations of interference and pass-through. POTWs
that fail to have quarterly monitoring of their SIUs (by the POTW or 5113 as discussed under the previous
criterion) and/or have not developed appropriate local limits to prevent interference or pass through
are generally unprepared or unable to enforce against interference or pass-through. These POTWs
should be reported as failing to adequately implement their pretreatment programs.
POTW REPORTING TO THE APPROVAL AUTHORITY
F. Failure to Submit Pretreatment Reports Within 30 days
This criterion already exists under Category I of 40 CFR Part 123.45(a). The term “pretreatment report”
should be interpreted to include any report required by the Approval Authority from the POTW
(including publication of significant violators in the newspaper as required by Section 403.8(f)(2)(vii)
of the General Pretreatment Regulations). Where specific dates are established for these or other
reports from the POTVV they may be tracked as schedule requirements in PCS. When deadlines are
missed, the PO1’W should be notified immediately because these reports contain information which is
essential to determine compliance status. When the due date is missed by 30 days or more, the POTW
should be reported on the QNCR as in noncompliance.
OTHER POTW IMPLEMENTATION VIOLATIONS
G. Failure to meet Compliance Schedule Milestones by 90 Days or more
Compliance schedules are frequently used to require construction of additional treatment, corrective
action, Spill Prevention Contingency and Countermeasure plans, additional monitoring that may be
needed to attain compliance with the permit, and any other requirements, especially local limits. The
schedules divide the process into major steps (milestones) that can be verified by inspection or review.
Most schedules include progress reports. EPA recommends that the milestones be set at least every six
months throughout the schedule. The schedules can be incorporated as part of the permit if final
compliance will not exceed the regulatory compliance deadline. If the compliance schedule is to resolve
a violation that has occurred after the regulatory compliance deadline, the schedule must be placed in
an administrative order, judicial order, or a consent decree.
The existing rule for QNCR reporting requires that all permittees be listed on the QNCR if they are
under an enforcement order. If the permittee is in compliance with the order, the compliance status is
“resolved pending”. If the permittee has missed a compliance schedule date by 90 days or more, the
permittee must be reported as noncompliant on the QNCR. For POTW pretreatment programs, a failure
to attain fmal compliance within 90 days of the compliance deadline in an enforcement order is
considered SNC.
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H. Any Other Violation(s) of Concern to the Approval Authority
This criterion allows the Approval Authority to identify any POTW as in reportable noncompliance for
a single violation or any combination of violations which are judged to be important even though they
may not be covered by the specific criteria in the defmition. These violations may include instances
where the approved program and/or implementation requirements are considered to be inadequate to
control JIJ contributions to the POTW (e.g. failure to develop and/or enforce local limits), to monitor
for SIU compliance with pretreatment requirements, or to enforce requirements and obtain remedies
for SIU noncompliance.
III. REPORTING ON THE QNCR
The Quarterly Noncompliance Report is prepared by NPDES States and EPA Regions each quarter.
It lists violations of Federally designated major NPDES permittees that are of concern to the Agency.
The format is described in Section 123.45(a) of the Regulations. For each instance of noncompliance,
the report must show the date, basis and type of the violation, the date and type of action the agency
has taken, and the current compliance status. The agency should also explain mitigating circumstances
or remedial actions which the permittee may have planned. Detailed guidance for preparing the QNCR
is available upon request to the Regions or OWEP. The following discussion summarizes the basic
requirements for reporting POTW pretreatment violations.
The QNCR must be submitted to EPA Headquarters sixty days after the reporting quarter ends. The
QNCR covers Federally designated majors. Generally, a POTW over 1 MGD is automatically designated
as a major. This includes the vast majority of the POTW Control Authorities. All POTW pretreatment
implementation violations should be reported on the QNCR, regardless of whether the control authority
is classified as a major or a minor PO1’W
A. Format
The general format for the QNCR is described in the Regulations. A list of abbreviations and codes
used by the State Agency or EPA Region that prepares the report should be attached to each QNCR.
If the Permit Compliance System (PCS) is used to generate the QNCR, standard abbreviations are
automatically used and no special list of abbreviations or codes is needed for the submittal to
Headquarters. (Note that a list of abbreviations may be needed for Freedom of Information Act
requests.) The format is intended to provide the minimum information that is necessary to describe the
violation, show how and when the agency responded, explain any mitigating circumstances or clarifying
comments, and indicate the current compliance status of the permittee.
The description of the permittee should include the name of the permit holder, the name of the
municipality, and the NPDES permit number. The permittee should be the Control Authority for the
local pretreatment program. If other municipal permittees are subject to the Control Authority, they
should be listed under the comments portion of the entry. The Control Authority is responsible for
violations by other permittees covered by the Control Authority’s pretreatment program. Similarly,
industrial users that contribute to the violation should be listed under comments.
B. Description of the Noncompliance
Under the permittee’s name and permit number, information on each instance of noncompliance must
be reported. For pretreatment violations, the description should summarize the criteria that were
violated and reference the QNCR Regulation subparagraph. The subparagraph of the August 1985
Regulations that apply would be as follows:
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QNCR (Section 123.45)
l pe of violation Regulation Subparagraph
1) Failure to implement or enforce industrial pretreatment (a)(iil)(B)
requirements
(Criteria A-E)
2) Pretreatment Report -30 days overdue (a)(ii)(D)
(Criterion F)
3) Compliance schedule - 90 days overdue (a)(iii)(C)
(Criterion 0)
4) Other violation or violations of concern (a)(iii)(G)
(Criterion H)
The criterion should be listed under the type of violation as the example (Section IV) shows.
Each violation should include the date. If the PO1’W has missed a deadline, the deadline is the date of
the violation. The last day of the month is used as the violation date for violations of monthly averages.
In some cases, the Agency may have discovered the violation through an audit or inspection of the
PO1’W program. The inspection/audit date should be noted under comments. In the examples, all dates
on the QNCR are written in six digit numbers representing the month, day, and year. The date, January
9, 1987 is entered as 010987 for the PCS generated QNCR.
The Region or approved State should contact the POTW promptly when a pretreatment implementation
violation is detected. The Region/State should also indicate its response to the PO1’W’s failure to
implement an approved program on the QNCR. In determining the appropriate response, the
Region/State should consider the impact of the violation, POTW compliance history, the number of
SIUs, and the nature and/or duration of the violation. Initial violations may be resolved through training,
conferences, or on-site reviews. The Regional/State response should be timely and escalate to formal
enforcement (an administrative order or judicial referral) if the POTW fails or is unable to comply in
a timely fashion (see example 2). The date the action was taken should also be indicated on the QNCR.
Planned actions by the POTW or its lUs and projected dates should be noted under comments.
C. Compliance Status
The QNCR also tracks the status of each instance of reportable noncompliance. Three status codes are
usually reported: noncompliance (NC), resolved pending (RP), and resolved (RE). “Noncompliance”
means the violation or pattern of violations is continuing. “Resolved pending” means the permittee is
making acceptable progress according to a formal schedule (i.e., through an administrative or judicial
order) to correct the violation. “Resolved” means the permittee no longer exceeds the QNCR criteria
for which they are listed. For the “noncompliance” and “resolved pending” status, the status date is
generally the last date of the report period. The status date for “resolved” is either the date the
noncompliance requirement is fulfilled or the last day of the report period in which the permittee no
longer meets the QNCR criteria.
The “comments” column can be used to describe the violation, explain permittee progress, indicate
potential remedies, projected dates of compliance, and explain agency responses. Other information can
also be reported under comments, including the name of noncomplying SIUs; the level of performance
or degree of failure by the POTW; the names of other permittees that are covered by the Control
Authority; agency plans for training or technical assistance; and the manner in which the agency learned
of the violation.
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W EXAMPLES OF REPORTING ON THE QNCR
The following examples illustrate how violations and agency responses are reported. Example 1 is a
moderate size POTW that has refused to implement the program. Example 2 is a small PO1’W which
needs assistance. In each example, instances of noncompliance were addressed by an administrative
order after an initial warning.
A) Example 1
Scenario: Hometown’s pretreatment program was approved in June 1985. The permit required an
annual report, fifteen days after the end of each year, beginning January 15, 1986. The
program required that permits be issued to 15 SIUs by June 30, 1986. The POTW was audited
in August 1986 and had failed to permit and inspect its lUs and failed to submit an annual
report.
QNCR Listing
Hometown WWTP, Hometown, US 00007
INSTANCE OF REG ACTION COMPLIANCE
NONCOMPLIANCE DATE SUBPARA (AGENCY/DATE) STATUS (DATE)
Issue permits 063086 (iii)(B) Audit RP (033187)
(Criterion A) (EPA/083086)
AO#123
(State/033 187)
Inspect SIUs 083086 (iii)(B) Audit RP (033187)
(Criterion B) (EPA/083086)
AO#123
(State/033 187)
Submit Annual 011587 (ii)(C) Phone call RP (033187)
Report (State/0 13087)
(Criteria F) AO #123
(State/033 187)
COMMENTS
AO requires submission of annual report by 4/30/87, and permit issuance and sampling inspections of
all SIUs by 6/30/87. Control Authority includes two other permittees: Suburb One, Permit No. US
00008 and Suburb Two, Permit No. US 00009 who must meet the schedule for inspections.
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Discussion: The entry on QNCR for Hometown shows the name and permit number of the facility.
The Control Authority also covers two other permittees. Three reportable noncompliance
criteria were exceeded (see sections I and II of this guidance). The annual report was due
January 15, 1987, according to the NPDES permit for Hometown. The approved program
was the basis for the other reported violations. The “reg subpara” identifies the section
of the existing QNCR which covers the violations. The State has called the city which
promised to submit the annual report. After discussion with the city and its outlying
jurisdictions, an administrative order was issued with a compliance schedule to resolve all
three violations. Hometown is following an enforceable schedule that will lead to
compliance, so its compliance status is shown as “RP” (resolved pending) for all three
violations. The comments indicate the compliance deadlines.
B) Example 2
Scenario: Little Burg’s pretreatment program was approved January 1, 1986. The facility has two
SIUs, one is a food processor and the other is a pharmaceutical manufacturer. Little Burg
has had loads that have resulted in permit violations of BOD (March - June 1986). The State
Approval Authority issued an administrative order September 30, 1986 to establish a
schedule for issuing IU permits. The BOD violations were considered resolved for reporting
purposes as of October 1, 1986.
QNCR Listing
Little Burg WWTP, Little Burg, US 0008
INSTANCE OF REG ACTION COMPLIANCE
NONCOMPLIANCE DATE SUBPARA (AGENCY/DATE) STATUS (DATE)
Enforce against 033186 (iii)(B) AO#1 RP (033187)
IU (State/093086)
pass-through/ Warning letter
interference (State/04 1586)
(Criterion E)
Criteria E 043086 (iii)(B) AO#1 RP (033187)
(State/093086)
Warning letter
(State/OS 1586)
Criteria E 053186 (iii)(B) same RP (033187)
Criteria E 063086 (ili)(B) same RP (033187)
COMMENTS
State has provided training to Little Burg and PRELIM to calculate local limits (10/86). City will issue
permits by 4/15/87.
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Discussion: Little Burg has a history of problems from industrial loadings. The pretreatment violation
is a lack of enforcement against interference and pass-through. The same violation
occurred four months in a row. The POTW also had a violation of its BOD limit which
met the criteria for reporting on the QNCR. In this case DMR data were critical flags of
an interference/pass-through problem. The solution is believed to be local limits and
permits for the SIUs. The administrative order established a schedule which is being
tracked. The original BOD violations have been resolved because the SIUs have reduced
their loads and are preparing to add treatment. When the POTW has completed the
development of local limits and issued the permits, the instances of noncompliance will
be deleted from the QNCR. The State will continue to monitor progress each quarter
through reports and/or inspections.
V. COMPLIANCE EVALUAflON
EPA or the approved State should use pretreatment compliance inspections, annual reports, audits, and
DMRs to evaluate the compliance status of the permittee. At a minimum, available data should be
reviewed every six months to determine whether the POTW is in compliance. This review may occur in
conjunction with the conduct of an audit or inspection or the receipt of a report. Once the facility is
shown on the QNCR, quarterly evaluations are needed to update the compliance status on each QNCR.
Compliance with permit effluent limits, compliance schedules, and reporting can be tracked in PCS,
which is EPA’s automated data system. The dates for submission and receipt of periodic reports and
routine requirements should also be tracked in PCS. WENDB data already require that receipt of an
annual report (or periodic report) and its due date must be entered into PCS as a permit schedule
requirement. This tracking would allow Regions and States to forecast when reports are expected and
detect reporting violations, similar to the process for tracking discharge monitoring reports and other
scheduled events.
The Pretreatment Permits and Enforcement Tracking System, (PPETS), has been developed, as a part
of PCS, to track the overall performance of POTWs with their pretreatment requirements and the
compliance rates of significant industrial users. Users guides and training will be provided to Regions
and States in the fall of 1987. A few examples of the data which PPETS will include for each PO1’W are
the number of significant users (SIUs), the number of required control mechanisms not issued, the
number of SIUs not inspected or sampled, the number of SIUs in significant noncompliance (SNC), and
the number of enforcement actions. Most of the data in PPETS will only be indicative of potential
violations. The apparent violation should be verified as a continuing problem before the instance of
noncompliance is reported on the QNCR. The data elements in PCS and PPETS that may apply to
reportable noncompliance are summarized for each criterion in Table 2.
Once the POTW has been reported on the QNCR it should continue to be reported each quarter until
the instance of noncompliance is reported as resolved. Compliance with an enforcement order (both
judicial and administrative) should be tracked on the QNCR from the date the order is issued until it
is met in full. EPA and/or the approved State should verify the compliance status of the POTW each
quarter through periodic reports from the POTW, compliance inspections, audits, meetings, or requests
for compliance data and information.
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Table 2
REPORTABLE NONCOMPLIANCE CRITERIA AND RELATED PCS/PPETS
DATA ELEMENTS
Criterion Data Source Data Element
Criterion A PPETS o Number of Sills without
-- Failure to Issue Control Mechanisms required control
mechanisms’°
o Control mechanism
deficiencies
Criterion B PPETS o Number of Sills not
-- Failure to Inspect SIUs inspected or sampled’°
o SIUs in SNC but not
inspected or sampled’°
o SIUs not inspected at
required frequency
o Inadequacy of POTW
inspections
Criterion C PPETS o SIUs in SNC with self-
-- Failure to Establish Self-Monitoring monitoring’ 0
Criterion D PCs o Violation Summary
-- Failure to Implement Standards o Effluent data’°
PPETS o SIUs in SNC’°
o Number of enforcement
actions’°
o Amount of Penalties’°
o Adopted local limits’ 0
o Technical evaluation for
local limits’ 0
10 Water Enforcement National Data Base (WENDB) data elements for which data entiy is required, not optional
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Table 2
(Continued)
Criterion Data Source Data Element
Criterion D (Continued) PPETS o Deficiencies in PO1’W
-- Failure to Implement Standards application of standards
o Date permit required
implementation’°
o Number of significant
violators published in
the newspaper’°
Criterion E PCS o Violation summaly
-- Failure to Enforce o Effluent data’°
PPETS o Same as Criterion D
o Pass Through/Interfer-
ence incidents
o Deficiencies in POTW
sampling
o Deficiencies in PO1’W
application of standards
o Enforcement response
procedures used
Criterion F PCS o reporting schedule
-- Failure to Submit Annual Report o permit reporting t °
Criterion G PCS o compliance schedule
-- Failure to Meet Compliance Schedules events’ 0
10 Water Enforcement National Data Base (WENDB) data elements for which data entry is required, not optional
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VI. RESPONSE TO POTW NONCOMPLIANCE
The QNCR requires reporting of noncompliance, as well as the action taken by the approved State or
EPA Region to resolve the noncompliance. EPA Regions and approved States should review and verify
all problems or violations related to POTW program implementation, regardless of whether they are
or will be reported on the QNCR. Specific implementation requirements must be identified and
compliance should be systematically reviewed and evaluated. In determining the appropriate response,
the Approval Authority should consider the nature of the violation, the length of time the POTW has
been approved, and the compliance history of the permittee.
Given the fact that implementation of pretreatment program requirements is a relatively new experience
for many POTWs, formal enforcement may not be initially appropriate. The POTW may be unaware
of how to correct the violations that have occurred and may need training and guidance from the
Approval Authority. The opportunity for a “second chance” is an important option for the Approval
Authority. In all cases, the POTW should be advised of its violations. However, if the violation is the
first such problem and the POTW is willing to implement the approved program and needed corrective
action, then technical assistance may be appropriate to help the POTW personnel understand what is
expected and when.
EPA recommends closely monitoring the progress of the POTW in issuing, reissuing, or ratifying its
control mechanisms. If the POTW consistently fails to issue and maintain its control mechanisms in a
timely fashion--that is issuance in accordance with the approved program or permit or the requirement
of an enforcement order within 90 days after permit expiration--the Approval Authority should issue a
warning letter or administrative order to the Control Authority and establish a schedule for issuing the
necessary control mechanisms.
Where a schedule is needed for corrective action, the Approval Authority may wish to establish that
schedule in an enforcement order. When a schedule extends for 90 days or longer, EPA recommends
that the Approval Authority establish the schedule in an enforcement order. A detailed schedule with
intermediate milestones will help the POTW allocate appropriate time and priority to the required
tasks, while helping the Approval Authority assess the POTW’s progress. The Approval Authority may
use a 308 letter to obtain information and time estimates from the POTW to develop the compliance
schedule. Compliance with an enforcement order is tracked on the QNCR until the PO1’W has returned
to full compliance with the NPDES permit.
Formal enforcement will be the appropriate initial response in a growing number of cases as POTWs
become more knowledgeable of their implementation responsibilities. Where the PO1’W has
substantially failed to implement its approved program or demonstrates inadequate commitment to
corrective action on a timely basis, the Approval Authority should initiate formal enforcement action. 1 ’
Formal enforcement may also be appropriate as an initial response where the POTW’s failure to enforce
has contributed to interference, pass-through, or significant water quality impacts. When a violation by
the POTW has been identified and the POTW has failed to initiate corrective action in the quarter
following identification on the QNCR, the Approval Authority should strongly consider formal
enforcement action.
11 EPA Headquarters is developing criteria for bringing formal enforcement actions and model pleadings and complaints for
judicial actions against POTWs for failure to implement their pretreatment programs.
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VII. SUMMARY
The QNCR is an important tool to identify priority violations of permit conditions, to overview the
effectiveness of State and EPA compliance and enforcement activities, to provide a framework to achieve
a nationally consistent pretreatment program, and to compile national statistics on noncompliance for
the NPDES program. The existing rule for noncompliance reporting requires EPA and the States to
report instances where POTWs have failed to adequately implement and enforce their approved
pretreatment program.
Nearly 1500 POTWs are now approved. Pretreatment will be the primary mechanism to control toxic
and hazardous pollutants which may enter the POTW or its sludge. Therefore, it is vital that EPA and
the approved States routinely evaluate POTW compliance with the requirements of their approved
program and report POTWs that have failed to adequately implement their approved program.
This Guidance is intended to assist Regions and approved States evaluate and report POTW
noncompliance with pretreatment requirements. The Guidance explains the criteria that should be used
to evaluate principal activities and functions necessary to implement the program. In some cases,
approved States and Regions may need to modify the program and/or NPDES permit because the
existing requirements are inadequate or because conditions have changed. In general, those POTWs
that meet the definition of reportable noncompliance should be priorities for resolving the inadequacies
in approved programs or permits.
EPA plans to incorporate specific criteria into the NPDES Regulations for noncompliance reporting
of POTWs which fail to adequately implement their pretreatment programs. The regulation will be
developed after Regions and approved States have had the opportunity to use this Guidance for at least
12 months to assess the effectiveness of the criteria in identifying serious noncompliance. Comments
on the use of this guidance and the reporting of POTW noncompliance required under the Strategic
Planning and Management System in FY 1988 will be carefully evaluated for future regulatory and
program reporting requirements.
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