ANALYSIS OF COLORADO
DEPARTMENT OF HEALTH'S
ADMINISTRATION OF THE
NPDES PROGRAM
April 23, 1579
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TABLE OF CONTENTS
Page
Table of Contents 11
List of Tables iv
List of Figures iv
INTRODUCTION
Background 1
Purpose 2
Organization 3
FINDINGS 5
RECOMMENDATIONS 8
PERMIT ISSUANCE
Background g
Program Goal 9
Analysis of Results 10
COMPLIANCE AND ENFORCEMENT
Analysis of Compliance Program 17
Compliance Schedule Implementation 20
Analysis of Enforcement Program 21
Federal Enforcement Actions 24
Analysis of Civil Penalties 25
Compliance Status of Major Dischargers 27
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TABLE OF CONTENTS
Page
PROGRAM MANAGEMENT ISSUES
Program Responsibility 32
NPDES Staff Turnover 33
Need for Para-professional Staff 34
Lack of Staff Orientation and Training 34
Lack of Compliance and Enforcement Personnel 35
Mining Permit Needs 36
Permit Issuance - Compliance Coordination 36
Administration of Adjudicatory Hearings 38
WQCD - Attorney General Coordination 38
Status of Recent Issues 40
Enforcement Management System 41
NPDES Files Management 42
Chronology I - Policy Issues and
Assistance Provided 44
Chronology II - Program Operations and
Assistance Provided 48
NPDES PROGRAM RESOURCES
Past and Present Program Support 51
Analysis of Program Resource Needs 52
Permit Issuance Needs 52
Compliance Assurance Needs 54
Enforcement Needs 54
Summary 55
ATTACHMENTS 57
11
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Attachment A -
List of Attachments
NPDES Program Review, Proposed Plan
Paae
58
Attachment B - Inter-office Memorandum, Colorado
Department of. Health, Frank Rozich
to William Auberle, 9/2/78 60
Attachment C - Letter to Roger E. Frenette, EPA, from
Fred Matter, WQCD, transmitting tabulations
of enforcement actions, dated November 15,
1978 61
Attachment D - Colorado Organization Chart Submitted
with Program Plan for Delegation
Purposes^ 1974 64
Attachment E - Letter to Robert D. Siek, Assistant
Director, Colorado Department of
Health from John A. Green, EPA Regional
Administrator, dated August 19, 1976 65
Attachment F - Letter to John A. Green, EPA Regional
Administrator from Robert D. Siek,
Assistant Director, Colorado Department
of Health dated September 8, 1976 68
Attachment G - Water Quality Control Division
Organization Chart and List of
Duties, dated October 13, 1978 71
Attachment H- - Memorandum transmitted to WQCD Chief,
Monitoring and Enforcement Section,
suggesting improvements for the Permit
Program and specific needs for an
Enforcement Management System 75
Attachment I - EPA Summary of Colorado NPDES
File Audits 81
iii
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LIST OF TABLES
Page
Table 1 - Permits Issued By Water Quality Control
Division ^
Table 2 - Percent of Unissued Major and Minor Permits 15
Table 3 - List of Enforcement Actions - State of
Colorado 22
Table 4 - Federal Enforcement Actions in Colorado
since NPDES Delegation 26
Table 5 - Status of Compliance With July 1, 1977
Requirements as of October 1 , 1978 28
Table 6 - EPA Workload Model, National Productivity
Indices 53
Table 7 - Resource Summary 56
LIST OF FIGURES
Figure 1 - Comparison of Number of Major Permits In Need of
Reissuance With Actual Number Reissued, by
quarter, Between July 1, 1975 and October 1,
1978 11
Figure 2 - Comparison of Number of Minor Permits In Need of
Reissuance With Actual Number Reissued, by Quarter,
Between July 1 , 1975 and October 1 , 1978 12
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ANALYSIS OF COLORADO DOH ADMINISTRATION OF THE NPDES PERMIT PROGRAM
INTRODUCTION
Background
On October 18, 1972, Congress passed the Federal Water Pollution
Control Act Amendments of 1972, (33 USC §§ 1251-1376, Supp. 1973; here-
inafter the "Act"). This legislation established the National Pollutant
Discharge Elimination System (NPDES) permit program, under which the
Administrator of the U. S. Environmental Protection Agency (EPA) may
issue permits which control the discharge of pollutants into navigable
waters from municipal, industrial, and agricultural point sources.
Section 402(b) of the Act provides that the Governor of a State
desiring to administer the NPDES program for discharge into navigable
waters within its jurisdiction may submit to the Administrator of the
EPA a full and complete description of the program it intends to
administer, including a statement from the State Attorney General that
the laws of the State provide adequate authority-to carry out the
described program. The criteria to be satisfied by a State wishing to
administer the NPDES program are found in regulations at 40 C.F.R.
Part 124. The Administrator is required to approve each such submitted
program unless the program does not meet the requirements of § 402(b)
and EPA's guidelines which include adequacy of State resources. Among other
authorities, the State must have: (1) adequate authority to issue
permits which comply with all pertinent requirements of the Act; (2)
adequate authority, including civil and criminal penalties, to abate
violations of permits; and (3) authority to insure that the Administrator,
the public, any other affected State, and other affected agencies are
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given notice of each permit application as well as the opportunity for a
public hearing prior to final action on each permit application.
On December 27, 1974, Region VIII EPA received a formal request from
the Governor of Colorado to operate the NPDES Permit Program. Following
a detailed review by the Region, a public hearing on the application was
held in Denver, Colorado. After consideration of public and Regional
comments, the Administrator of EPA, on March 27, 1975, granted the Colorado
Department of Health (CDOH) authority to operate the NPDES permit program.
The Administrator's approval letter stressed that Colorado's program must
at all times be conducted in accordance with Section 402 of the Act, all
guidelines promulgated pursuant to Section 304(h)(2) of the Act and the
Memorandum of Agreement and; in addition, that with the transfer of authority
Colorado was responsible for taking enforcement actions for violations of
all State-issued permits.
The application submitted by the Governor is comprised of 10 sections.
The first section covers program description and details how the Colorado
Department of Health (CDOH) will administer the NPDES program. It includes
a description of the CDOH organization, permit procedures, resources
devoted to the permit program, State regulations and authority, the Colorado
Water Quality Control Act, the Colorado Water Quality Standards, and the
Memorandum of Agreement. Also included is the Attorney General's Statement
which certifies that Colorado has sufficient legal authority and satisfactory
regulations to administer the NPDES program and that no person issuing >'PDES
permits is subject to a conflict of interest as defined by Federal regulations.
Purpose
The Act requires that any State NPDES permit program shall at all
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times be administered in accordance with Section 402(b) and the applicable
guidelines. Whenever the Administrator determines after public hearing
that a State is not administering a program in accordance with these
requirements, he is required to so notify the State and, if appropriate
corrective action is not taken within a reasonable period (not to exceed
ninety days), the Administrator is required to withdraw approval of the
program. The Administrator shall not withdraw approval of any such
program unless he shall first have notified the State and made public,
the reasons, in writing, for withdrawal. The purpose of this analysis is
to assist 1n determining whether the Colorado Department of Health has
administered the NPDES permit program consistent with the requirements
of the Act.
The analysis was agreed to by top management of the Region VIII EPA
and Colorado Department of Health at the Fiscal Year 1978 mid-year program
review session held June 7, 1978. A plan for carrying out the analysis
was developed and, on June 23, 1978, EPA and Water Quality Control Division
agreed to initiate the analysis. A copy of the plan appears as Attachment A.
Organization
The report is divided according to the major activities that comprise
any NPDES program and is supplemented with management and resource analyses.
An analysis of Colorado's permit issuance performance is included in the
first chapter. Permit issuance functions, by definition, include receipt
and review of applications, the analyses and application of State and
Federal standards to each specific discharger, public participation
activities related to proposed decisions, and finally, issuance or reissuance
of permits according to a priority system. The adjudication of contested
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issues of fact 1s also part of the permit issuance function. Compliance
assurance and enforcement are documented in the second major chapter of
the report. Compliance assurance functions, the second major area in an
NPDES permit program, includes the maintenance of a source inventory,
the review of Discharge Monitoring Reports submitted by permittees,
pre-enforcement evaluations related to effluent and compliance date
violations, and enforcement evaluations recommending specific responses
to permittees.
The third major area of activity necessary to carry out the NPDES
program flows from the compliance assurance functions identified above.
Documentation of facts, analyses of specific violations within the context
of a response matrix, and the issuance of Warning Letters, Administrative
Orders, Notices of Violation, or referrals to the Attorney General are
major segments of enforcement area. The most resource-intensive aspect
involves the follow-up needed to bring enforcement cases to successful
completion. Of necessity this function requires close coordination
between technical and legal personnel.
A discussion of management issues related to all aspects of the NPDES
program, that is, permit issuance, compliance assurance, and enforcement,
makes up the third major chapter. Lastly, a specific analysis of Colorado's
NPDES program needs in terms of number of staff required to effectively
implement the NPDES program completes the report.
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FINDINGS
Communications with the Water Quality Control Division staff and
coordination on the varied aspects of the National Pollutant Discharge
Elimination System permit program form the basis for a substantial portion
of EPA's knowledge of the WQCD's policies, practices and program operations.
File reviews and a number of staff Interviews were undertaken during the
summer of 1978 to supplement personal knowledge and, to the degree possible,
document programmatic and managerial issues that serve as barriers to
effective Implementation of the NPDES program. The findings set forth
below can be substantiated in the text of this report and the attachments
appended thereto.
For the period of review, March 27, 1975, to October 1, 1978, the EPA
finds:
1. The Water Quality Control Division (WQCD) did not, during
seventy percent of the time, meet the performance goal related to permit
issuance identified in the Memorandum of Agreement. During only four of
thirteen quarters did the WQCD meet the 30 permits per month goal.
2. Chronologies of events listed as "Policy Issues" and "Program
Operations" depict a continuous failure to effectively administer the
NPDES program. The State's permit program has been in need of strong,
day-to-day management. Lack of program accountability, high staff turnover,
the need for organization and training of personnel, and the lack of
adequate numbers of compliance and enforcement personnel have plagued
program operations.
3. The WQCD's approach to compliance and enforcement and their
lack of management system results in an inefficient use of limited
resources.
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4. The WQCD has indiscriminately extended final compliance dates
of permittees, using methods beyond the boundaries stipulated 1n the
Clean Water Act.
5. With respect to the issuance of Administrative Orders, the EPA
issued and resolved 25 percent of such actions taken in the State. For
civil penalty assessments and referrals, EPA has been responsible for
nearly one half of all successful enforcement actions taken in the State.
6. After more than three years into the program, the need for
improved comnunication and coordination — for a true partnership — between
the WQCD and the Attorney General's Office, remains unmet.
7. The adjudicatory hearing process has proved to be a slow, cumbersome,
resource-Intensive, in essence — unworkable — portion of the WQCD's
permit program.
8. Even though the major dischargers (136 of 950 industries and
municipalities) contribute an overwhelming percentage of the pollution
load discharged to State waters, the WQCD strategy is directed largely
at minor dischargers.
9. A number of major program issues, brought to the WQCD's
attention during the FY-77 and FY-78 Section 106 mid-year review sessions,
have yet to be acted upon.
10. Based upon the application of a national workload model,
modified to fit Region VIII experience, EPA finds that the WQCD has
adequate permit issuance staff, but needs an additional nine workyears
of effort, largely for the compliance assurance and water enforcement
functions, to meet NPDES program requirements.
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71. An audit of about ten percent of the NPDES files found major
deficiencies. The filing system is in great need of attention.
12. The role of the Water Quality Control Commission in approving/denying
each individual civil penalty raises questions of propriety and conflict of
interest when viewed in light of 40
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RECOMMENDATIONS
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PERMIT ISSUANCE
Background
When the NPDES program was delegated to the State of Colorado on
March 27, 1975, there were approximately thirty original applications,
including one major industrial, that required draft permits. On that
date there were no expiring permits so that the total number of permits
that remained to be issued consisted of about thirty permits out of a
total of 556 permits.
The program requirements have increased since March 1975. The
number of dischargers requiring permits increased from 556 in March
1975 to 950 on October 1, 1978, about a 70 percent increase. Of that
increase, the number of major municipal and major industrial permits
has fluctuated somewhat but, on the balance, remained relatively con-
stant at about 150. As of October 1, 1978, there were 136 major
industrial and major municipal dischargers in the State.
Program Goal
1/
The performance goal stipulated in the Memorandum of Agreement
requires the State to issue thirty (30) permits per month. The
commitment is as follows:
"The Director, or his designee, in the administration
of the NPDES permit program on behalf of the State, shall
use his best efforts to attain the performance goals which
1/ Memorandum of Agreement between State of Colorado Department of
Health and U.S. Environmental Protection Agency, Region VIII, setting
forth policies and expectations for delegation of the National Pollutant
Discharge Elimination System (NPDES), dated December 24, 1974. Page 10
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have been set pursuant to Section 106 of the Act, and to con-
form to the Environmental Protection Agency's permit issuance
strategy aimed at the issuance of permits to all substantial
dischargers by December 31, 1974.
To this end, the Division will issue at least thirty (30)
permits per month for the first six (6) months of calendar
year 1975, or until all permits are issued, but will have
prepared draft permits for all point source discharges covered
by the Act by June 30, 1975."
Analysis of Results
Figures 1 and 2 show the trend in permit issuance and reissuance for
the major permits and minor permits, respectively. The thirteen quarters
preceding October 1, 1978, are depicted.
Table 1 reduces the accomplishments graphically displayed on the
Figures 1 and 2 to number of permits issued per quarter and per month.
The Water Quality Control Division (WQCD) met the performance goal of
issuing 30 permits per month during the quarters ending July and October,
1976, and January and April, 1977, when permit issuance reached between
34 and 60 permits per month. On the other hand, the WQCD did not meet
its performance goal during seventy percent (9 of 13 quarters) of the
time. Furthermore, a significant trend in not meeting program goals
has developed since April, 1977. Table 1 and Figures 1 and 2 depict a
dramatic failure in meeting expectations. For the 18 months between
April, 1977 and October 1978, permit issuance has declined from thirty-
five (35) to six (6) permits issued per month. Most importantly the
average number of major permits issued was less than two (2) per month,
for the last seven quarters shown at Table 1. Fortunately, the rate
of expiration of major permits also declined during this period or an
even wider gap representing expired permits would have occurred.
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Quarter Ending
UjlNjJ .V > l>. I.-.JJ > ad Ih.l 1 mud «|IIV HIUI Hl\
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TABLE 1
Permits Issued By Water Quality Control Division
Quarter
Ending
No. of
Major
Permits
No. of
Minor
Permi ts
Total/
Permi ts
Quarter
Total/
Permits
Month
Oct
'75
13
17
30
10
Jan
'76
9
43
52
17
Apr
'76
12
47
59
20
Jul
'76
19
84
103
34
Oct
'76
24
83
107
36
Jan
'77
15
166
181
60
Apr
'77
8
97
105
35
Jul
'77
4
41
45
15
Oct
'77
4 u
39
43
15
Jan
'78
2
34
36
12
Apr
78
2
5
7
2
Jul
'78
10
15
25
8
Oct
'78
2
18
20
6
1/ 12 major permits were actually issued, 8 of which were developed
by the EPA Regional Office at the State's request.
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A comparison of the work to be accomplished (permits 1n need of
Issuance or reissuance) against the actual work done shown in Figures
1 and 2 clearly shows that the continuous backlog of major and minor
permits would in essence have been cleared if the productivity during
the October 1976 through April 1977 period could have been maintained.
Lack of appropriate performance has led to unenforceable requirements,
confusion for permittees, the issuance of "temporary permits" or
administrative extensions under the Administration Procedures Act and
other vagaries. For example, during the period from January 1, 1978
to November 6, 1978, the WQCD issued public notices of its intent to
issue seventy-three (73) administrative extensions for permits which
had expired. The use of administrative extensions began about one year
after assumption of NPDES program and has been part of Colorado's pro-
gram ever since.
The use of administrative extensions places severe limitations on
the incorporation and enforcement permit effluent limitations and do
not provide opportunities to incorporate revised water quality standards.
Administrative extensions at best only maintain the status-quo.
In Table 2 the percent of unissued major and minor permits is
given for each quarter. Using an average of 136 major permits, the
analysis shows the unissued rate varied from two (2) percent to
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TABLE 2
Percent of Unissued Major and Minor Permits
Major Permits
Minor Permits
Number of
1/
Number of
Quarter
Major Permits
Percent
Minor Permits
Percent
Ending
Not Issued
Not Issued
Not Issued
Not Issued
Oct '75
7
31
6
Jan '76
16
12
74
14
Apr '76
18
13
147
27
Jul '76
24
18
156
29
Oct '76
19
14
178
33
Jan '77
11
8
101
19
Apr '77
15
11
67
12
Jul '77
17
13
77
14
Oct '77
6
4
81
15
Jan '73
5
4
65
12
Apr '78
3
2
85
16
Jul '78
12
9
109
20
Oct '78
15
11
118
22
Average
10%
18%
1/ Based upon average of 136 major dischargers,
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eighteen (18) percent, with an average of ten (10) percent for the
period of analysis. Using an average of 537 minor permits for the
period of record, the unissued rate has varied from six (6) to
thirty-three (33) percent. The average rate for the period was
eighteen (18) percent. Therefore, the Water Quality Control Division
maintained an issuance rate of ninety (90) percent of the major permits
and eighty-two (82) percent of the minor permits. As noted earlier,
1977-78 represented a period of low expiration rates of major permits;
otherwise the unissued percentage would have been significantly higher
during the last eighteen months.
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COMPLIANCE AND ENFORCEMENT
This chapter describes the State of Colorado's compliance and
enforcement programs as carried out by the Water Quality Control
Division and the issues related thereto, identifies the Federal enforce-
ment actions, highlights the role of the Water Quality Control Commission
in enforcement matters and summarizes the status of compliance of major
dischargers with the July 1, 1977 Clean Water Act requirements.
The only way to truly determine effluent compliance with an
NPDES permit is to measure the quantity of pollutants in a treated
wastewater discharge. Water quality monitoring data for point source
dischargers (NPDES permittees) is normally generated by EPA, the State,
and, most frequently, by the source itself. Resource restrictions
on States and the EPA severely limit the amount of information generated
by the regulatory agencies. Thus, self-monitoring information that is
submitted by the permittee, in reports called Discharge Monitoring Reports,
becomes a most valuable tool in establishing a viable compliance and
enforcement program.
Analysis of Compliance Program
The following program documentation was developed from EPA staff
knowledge and updated through interviews with State staff during summer
of 1978. Although there has been no written statement on compliance
monitoring until just recently (refer to September 2, 1978, memorandum,
Attachment B), the following represents the Water Quality Control Division's
(WQCD) standard operating procedures over the last three years.
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1. Discharge Monitoring - Because the WQCD feels that the quality
assurance of permittee-generated data is questionable and that
its direct use against a source is an unethical practice, the
WQCD has determined and uses discharge monitoring report (DMR)
results solely as a tracking device. When effluent violations
are uncovered through DMR review, the WQCD normally sends the
permittee a form letter to provide the permittee notice of
violation or, in extreme cases of noncompliance, the WQCD
schedules "Compliance Monitoring" as defined below.
2. Compliance Monitoring - The WQCD's routine sampling program is
referred to as "Compliance Monitoring." Normally a single
sampler is sent to collect a single grab or composite sample.
Despite a Colorado regulation which requires that a split sample
be offered to the permittee before a sample can be considered
admissible evidence for enforcement, the sampler, in practice,
secures the sample without a witness being present or without
making any attempt to locate a representative of the discharger
to accept the split sample. No additional compliance review,
such as inspection of flow measuring devices or review of the
source's sampling and reporting procedures are conducted during
the WQCD's "compliance monitoring."
The sampling program is carried out as part of the State's
stream sampling program. The purpose of "compliance samplinc"
appears to be that of generating areawide exposure by sampling
each source, regardless of size, effluent quality, compliance
history, or receiving stream each few months.
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3. Enforcement Monitoring - When the WQCD is considering either
Issuing a Cease and Desist Order or assessing a civil penalty,
1t schedules "Enforcement Monitoring." "Enforcement Monitoring"
is defined as three separate samples (generally composites)
taken in separate weeks, over a thirty day period, regardless
of the sampling requirements set forth by the permit. An
enforcement sample can also consist of three samples taken on
three separate days during a seven-day period. Efforts are
made to split the samples with the source at this point.
However, no additional compliance reviews are normally made.
Compliance monitoring outputs are by definition high when compared to
other States, while enforcement monitoring is low for a program of this
size. It follows that the largest portion of the WQCD's monitoring
resources are allocated to "compliance monitoring" and the total use of
this information serves, as a general rule, only to locate potential
violators, a function that could be accomplished more effectively and
with less manpower by the WQCD's review of Discharge Monitoring Reports.
As previously indicated the WQCD does not use permittee-developed
monitoring results to support enforcement efforts. It is not known
whether this is due to legal limitations and policy developed by the
Attorney General's Office. See Chronology I, Items P and T for repeated
requests to the WQCD to review this policy. In those few cases where
"compliance monitoring" is scheduled from DMR reviews, the compliance
monitoring data is not available for enforcement support since samples
are not split with the permittee. Consequently, additional effort, in
the form of "enforcement monitoring" must then be undertaken. Again,
this enforcement scheme proves to be an unduly resource intensive approach.
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In addition to this obstacle, the State's policy of requiring "enforcement
sampling" prior to issuing a Cease and Desist Order causes significant
time delays in taking of the action. Such delays are unnecessary - in
view of the DMR data and compliance monitoring information which should
be utilized to support the "Findings of Fact" required for issuance of
Cease and Desist Orders.
Compliance Schedule Implementation
The Clean Water Act required publicly-owned treatment works to meet
secondary treatment levels and industrial sources to meet best practical
treatment control technology requirements by July 1, 1977. Additionally,
where State water quality standards call for more stringent requirements,
the more stringent criteria were to have also been met by that same date.
Prior to July 1, 1977, in those cases where permittees did not have
adequate treatment facilities in place to meet the requirements mentioned
above, enforceable compliance schedules outlining the specific action
items and time frames were placed in NPDES permits. Except as allowed by
Section 301(i) of the Clean Water Act for publicly-owned treatment works,
any schedule which extended compliance after July 1, 1977, could only be
allowed through the enforcement mechanisms described in the Clean Water
Act.
The file reviews and interviews carried out during the summer of
1978 showed that the Water Quality Control Division has indiscriminately
extended compliance schedules outside the boundaries required by the
Clean Water Act. In so doing the WQCD has manipulated the final compliance
date of permittees by approving, through issuance of standard form
letters, repeated one-, two-, and three-month delays requested by permittees.
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The confusion caused by this schedule approval method has, in some cases,
hampered the ability of the WQCD and even the EPA to take the necessary
enforcement actions. It appears the WQCD has not recognized its legal
responsibilities in administering the compliance schedule aspects of the
NPDES program.
Based upon experience, we have found that the WQCD tends to approve
almost all schedule extension requests without any meaningful evaluation
of the justification for additional time. Not only are numerous extensions
unjustified, but also the means of providing the extensions are not by
enforcement mechanisms called for by the Clean Water Act, The WQCD's
mishandling of compliance schedules is a practice most visible to the
public it serves and, most assuredly, undermines the credibility of the
State's regulatory program.
Analysis of Enforcement Program
A comprehensive list of enforcement actions is surmiarized in Table 3.
Because the WQCD makes no particular distinction between major and minor
dischargers for compliance reporting purposes, the information presented
in Table 3 relates to all known permit enforcement actions taken since
NPDES delegation in March, 1975.
A general scan of Table 3 indicates no obvious trends in the amount
of activity. Further, there is no significant increase in activity
immediately after July 1, 1977, the compliance date mandated by the Clean
Water Act. Emphasis.on the use of warning letters is reasonable inasmuch
as actions are elevated through the application of an enforcement matrix.
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TABLE 3
List of Enforcement Actions
State of Colorado 1/
(Includes Major & Minor Dischargers)
Warning Letters
Quarter
Self-
Compliance
Enforcement
Administrative
Commission
Ending
Monitoring
Monitoring
Conferences
Orders
Penalties
Violation
Violations
July 1975
40
16
3
0
0
Oct 1975
224
21
2
4
0
Jan 1976
1
0
1
10
0
Apr 1976
18
94
10
5
2
July 1976
n
27
13
2
2
Oct 1976
10
74
9
7
0
Jan 1977
12
29
10
11
1
Apr 1977
84
0
5
20
2
Jul 1977
5
32
6
8
1
Oct 1977
33
0
0
8
0
*Jan 1978
22
24
0
2
1
Apr 1978
51
13
2
4
1
*Jul 1978
44
9
8
18
3
*0ct 1978
38
22
6
26
1
Total
593
361
75
125
13
Average/
Quarter
42
26
5
9
1
1/ All information extracted from WQCD's own monthly summaries except periods
identified with asterisk. Information for that period taken from
November 15, 1978, letter to EPA from WQCD. See Attachment C.
Warning Letters - Form letters sent to permittees calling attention to
effluent violations found through review of either
self-monitoring reports or compliance monitoring sampling
conducted by the WQCD.
Enforcement Conferences - Meetings conducted by the WQCD with permittees
with respect to effluent violations to determine
future enforcement action.
Administrative Orders - Cease and Desist Orders issued by the Department of Health.
Commission Penalty - Approval of civil penalty previously negotiated by the
Attorney General's Office and the WQCD.
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Table 3 shows that the WQCD in conjunction with the Attorney General's
Office sent 68 warning letters, held 5 conferences, issued 9 administrative
orders and was successful in receiving Water Quality Control Commission
approval of one civil penalty, during an average quarter. For the period
of record, Table 3 shows that 82% of the actions for effluent violations
were warning letters, 6% were enforcement conferences, 11% were administra-
tive orders, and 1% of the actions resulted in penalty assessments. Reading
left to right, each action described in Table 3 is successively more
resource intensive and requires a comparable increase in expertise on the
part of the responsible personnel.
While a distinction between major and minor dischargers was not
available for the period, the third quarter of FY 78 (quarter ending
July 1, 1978) may illustrate the typical pattern of major/minor activity
by the WQCD. During this productive quarter, 18 administrative.orders
were issued, 4 (22%) to major dischargers and 14 (78%) to minor dischargers.
Of the 8 enforcement conferences, 4 were minors, and 4 were majors. The
three penalties were assessed against minor dischargers.
Major permittees constitute 18% of the permit holders in Colorado but,
as a group, contribute approximately 85% of the State's pollutional load.
Therefore, more time and effort should be directed toward violations of
major permits than is currently the practice. Since each individual
action takes a minimum amount of time, effort and coordination regardless
of size of the discharger, enforcement actions against violations of
minor dischargers indicates an apparent imbalance of effort in the State's
strategy of minimizing pollution. A method for establishing priorities
for violation follow up must be developed.
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The erratic pattern of .the enforcement outputs over time might
easily be equated with changes in personnel and policy in the WQCD and
the Attorney General's Office. In 1975, as the State program got underway,
EPA provided a substantial degree of supportive effort, both in compliance
and permit issuance. In January, 1976, the State made some effort to
shift discharge monitoring report review functions to the clerical staff.
EPA again provided much training support during this transition. (See
Chronology II in the Management Issues Chapter.) A new Assistant Attorney
General was assigned to handle the WQCD's cases during that year. In
1977, the responsibilities for discharge monitoring report reviews and
follow-up were transferred to an engineering technician (para-professional);
later, the duties related to the scheduling of enforcement conferences
were also added. The upswing in the issuance of administrative orders
during the last two quarters of the analysis (44 of the 125, or about
one-third of administrative orders were issued during these two quarters),
could, in part, be due to the assignment of a more aggressive Assistant
Attorney General to the Water Quality Control Division. Observation over
the past 3-4 years discloses that the Attorney General's Office is not
involved as counsel to the WQCD, and provides legal advice on permit/compliance
issues only when so requested. Oftentimes the Attorney General is not even aware
of a violation due to failure of the WQCD to so advise. The relationship
of the WQCD and Attorney General should be a partnership. It is not.
Federal Enforcement Actions
The Regional Office of the EPA was directly responsible for many of
the enforcement activities in Colorado in spite of program delegation.
EPA issued 114 Notices of Violation (as called for in Section 309(a)(1)),
31 Administrative Orders, and referred 12 cases to the U.S. Attorney for
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civil penalty during the period between March 1975 and October 1, 1978.
An average of eleven enforcement actions per quarter, or a total of 157,
were taken by the EPA. Federal action was necessary to fill the void
created by the lack of State pursuit. EPA often responded to requests
for assistance from the State.
Comparisons of State enforcement actions sumnarized in Table 3 and
EPA actions listed in Table 4 are illustrative. For example, EPA issued
and resolved violations in 31 Administrative Orders while the WQCD
issued 125, showing a 25 percent partnership by EPA. A distinction is
noteworthy here. State-issued orders were to major and minor dischargers
as described in the preceding section, while EPA actions were taken
almost exclusively against violations by major dischargers, often
constituting more complex endeavors. Civil penalty assessments and referrals
may be a more representative index of EPA's role after NPDES program
delegation. Of the 25 cases that have resulted in penalties, twelve (48%)
were resolved directly by EPA, while thirteen (52S) were taken by the
Water Quality Control Division, and in six of these cases EPA provided
considerable support. Thus, in spite of NPDES program assumption, Federal
enforcement was present and felt as often as State enforcement during the
fourteen quarter period of record.
Analysis- of Civil Penalties
Under the Colorado Water Quality Control Act, anyone who violates
a condition of an NPDES permit or a condition of a Cease and Desist Order
issued pursuant to the Act is subject to civil penalties of up to $10,000
per day of violation. Section 25-8-608(2) provides for the assessment of
civil penalties by the State Water Quality Control Commission.
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TABLE 4
FEDERAL ENFORCEMENT ACTIONS 1/
IN COLORADO SINCE NPDES DELEGATION
FY 75
FY 76
2/ 3/
FY 77 - FY 78 ~ TOTAL
NOTICES OF VIOLATIONS
ADMINISTRATIVE ORDERS
7
4
22
11
55
30
114
31
ro
cri
REFERRALS TO U. S.
ATTORNEY
12
TOTAL
12
39
63
43
157
1/ As of October 1, 1978
2/ Fiscal Year includes 5 quarters.
3/ Does not include three Administrative Orders to Federal facilities.
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In early 1976 the Commission requested the development of civil penalty
guidelines. On May 4, 1975, the Commission officially adopted a guideline
that had been developed by a committee consisting of Division and Commission
members and an EPA attorney. The guidance sets forth a simple matrix relating
the size of the establishment and the degree of the offense to a range of
penalties.
To-date, the Commission has deliberated on thirteen penalty situations
and, in most cases, approved the WQCD's negotiated amounts but with a
stipulation that a portion or all of the penalty be suspended. The
penalties collected to-date have ranged from about $200 to $15,000, with
four exceeding $1,000. The $15,000 penalty was collected on a major
environmental incident (toxic discharge, fish kill, interstate effect);
the Commission approved a penalty of $40,000 but suspended $25,000 of
it. When penalties are suspended it is normal WQCD practice to make
provisions for forfeiture should violations reoccur. In one case the City
of Sterling, having had its penalty suspended for major violations,
continuously violated its stipulated condition. When the WQCD attempted
to collect the forfeiture of $2,500, the Commission refused to approve of
the action and allowed the flagrant violation of the Colorado Water Quality
Control Act to continue. The role of the Commission in acting upon
individual penalties raises serious questions when viewed in light of
legislative history of the Clean Water Act that is formulated
Compliance Status of Major Dischargers
The status of compliance of major dischargers with the July 1, 1977,
requirements of the Clean Water Act is summarized in Table 5. No effort
was made to determine the compliance status of minor dischargers.
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TABLE 5
STATE OF COLORADO
STATUS OF COMPLIANCE WITH JULY 1, 1977,
REQUIREMENTS AS OF 10/1/78
Number of
Majors
Number
Out
Percentage
Out
Number
In
Percentage
In
Industrial
61
16
26%
45
74%
Municipal
75
45
60
30
40%
Total
136
61
45%
75
55%
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As of October 1, 1978, fifty-six of the major industrial dischargers
had completed construction of facilities necessary to meet the July 1,
1977, requirements. This represents 90 percent of the sixty-one major
industrial dischargers in the State. However, due to operation and
maintenance problems and design deficiencies discovered after start-up,
the actual percentage of major industrial dischargers meeting the
July 1, 1977, requirements is more on the order of 74 percent, as shown
in Table 5. On the national level, eighty five percent of all major
industrial dischargers met the Clean Water Act requirements.
Even though about 70 percent of the major municipalities have
wastewater treatment facilities in place to meet secondary treatment
requirements, overall major municipal compliance is actually 40 percent.
Nationally, forty (40) percent of the major municipalities are reported
to have met secondary treatment levels. And, as mentioned above, operation
and maintenance problems, design deficiencies, and the lack of water
quality standards based effluent limitations in some permits, (NH3, CI2»
etc.) account for the thirty percent (from seventy to forty percent)
decrease in municipal compliance with the July 1, 1977, Clean Water Act
requirements. The State of Colorado's construction grant funding policy
related to advanced wastewater treatment which removes "Front Range"
communities as recipients of funding for water quality standards related
purposes, shows little promise of granting any relief. Therefore, it is
expected that the actual compliance rate will not substantially improve
during the next few years. Additionally, municipalities as a rule,
demonstrate very erratic process control which gives rise to numerous
short-term permit violations. In this latter case, the Water Quality
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Control Division should use its enforcement mechanism to minimize permit
violations attributable to poor O&M rather than hope for additional
capital construction in order to achieve higher compliance levels.
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PROGRAM MANAGEMENT ISSUES
Included as part of this chapter are two Chronologies that summarize
major events which have transpired since the assumption of the NPDES
program by the Colorado Department of Health (CDOH) on March 27, 1975.
The Chronologies are divided into "Policy Issues" and "Program Operations".
In the first Chronology, which also included the assistance provided to
CDOH, summaries of letters transmitted between the EPA Regional Office to
the Water Quality Control Division (WQCD) of the CDOH are highlighted.
Equally important, major training sessions held for the purpose of strengthen-
ing the Colorado program are also listed. In the second Chronology termed
"II. Chronology of Program Operations and Assistance Provided", many
individual training sessions that have been provided by EPA personnel and
other direct forms of assistance will provide the reader with an accurate
picture of the EPA-WQCD relationships.
Missing from both Chronologies are the on-going communications between
the WQCD and the Regional EPA Office on a variety of program matters.
Some of the important items include the assistance provided on individual
permits on a day-to-day basis, the bi-monthly meetings held between EPA,
WQCD, and the Attorney General's Office for the purpose of coordinating
and following up on enforcement actions, the regional meetings set-up
for States related to NPDES regulations, policies and water enforcement
actions that provide the States with direct face-to-face contact with EPA
Headquarters personnel.
The Water Quality Control Division staff and the EPA staff have been
communicating at all organizational levels. While Federal requirements change,
the Chronologies also point out that there should be no surprises related to
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what is needed to operate a successful NPDES program. Lastly the reader
will note the numerous occasions of direct program assistance that EPA pro-
vided the WQCD during the period of analysis, March 27, 1975 to October 1, 1978.
Highlights from the Chronologies follow and are referred to and
identified by Roman Numerals and letters. In the description of issues
that follow, Chronologies were supplemented by the results of interviews
of State staff taken during the program review sessions. Twelve major
topics are described.
Program Responsibility
The lack of a clearly delineated and understood organization of the
WOCD runs through both Chronologies. The organizational structure given
in Colorado's NPDES program submittal appears as Attachment D of this
report. The responsibility for the "Waste Discharge Permit Program" is
listed under the Monitoring and Enforcement Section. A major difference
existed between the organization on paper and the day-to-day working of
the WQCD. To EPA's knowledge, no written functional statement of duties
was available to the following individuals who served in Acting capacity
as Chief, Monitoring and Enforcement Section for the approximate periods
given: Mr. Bill Heller, March 1975 to September 1975; Mr. Arden Wallum,
September 1975 to February 1976; and Mr. Paul Williamson, February 1976
to August 1977. Furthermore, the quasi delegation of responsibility for
permit issuance from an Acting Chief, Monitoring and Enforcement Section,
to an Acting NPDES engineer was never understood by either the EPA staff
or the W CD's Acting NPDES engineer.
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During this period a letter from the EPA Regional Administrator to
Mr. Robert Seik that asks a number of questions regarding NPDES responsibility
can best be described as "Who is in charge?" In a reply dated September
1976, WQCD indicates that a Team Leader is not named, re-organization is
still underway and generally there still remains unsatisfactory resolution.
Refer to Chronology I, items H and J and Attachments E and F p. 65. It
appears that an organization was finally approved and put in place with
accountable people during August of 1977, nearly two and one-half years
after program assumption. The organizational structure currently in place,
with appropriate individuals assigned, which has been operating since
August 1977 is given as Attachment G. The responsibility for the permit
issuance, compliance assurance, and technical support for water quality
enforcement functions is with Mr. Fred Matter.
NPDES Staff Turnover
Many engineers were trained ~ partially by EPA staff — and then
left the WQCD Permit Program during the period from March 1975 to August
1977. They are:
Mr. Rick Moore
Mr. Boyd Hanson
Mr. Bill Heller
Mr. Joe Virgona
Mr. Dick Bowman
Mr. Larry Quinn
Mr. Don Carlson
Mr. Bill Early
Mr. Paul Williamson
As related to EPA, factors attributable to the high turnover rate were
lack cf authority and accountability in permit issuance matters, dissatis-
faction over the lack of support by management, and the level of administrative
(para-professional) duties engineers were required to carry out.
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Need for Para-professional Staff
With regard to the latter situation, EPA has stressed the need to
staff the organization with para-professionals. In June 1976 the WQCD
was provided a briefing of the benefits to be derived from staffing the
NPDES permit program with para-professionals. Position Descriptions were
provided as was an assessment of how they could best support the WQCD
program and, as a supplementary benefit, release the engineering staff to
do the work they were hired and paid to do. See Chronology I, items D, G,
H, P and R p. 44. In the "Chronology of Program Operations and Assistance
Provided," numerous efforts were made by EPA to train a continuous flow of
personnel to handle Public Notices, review discharge monitoring reports,
develop and maintain compliance schedules and quarterly non-compliance
reports, and other para-professional duties. Refer to Chronology II, items
C, E, H, L, M, 0, P, Z and X.
Lack of Staff Orientation and Training
A theme that is not included in either Chronology but was highlighted
1n interviews was the lack of training given new WPCD staff by the State.
It was reported that when new personnel enter duty with the WPCD in permit-
water enforcement capacities, there is little or no training for the
tasks to be completed, identification of their day-to-day priorities and
how their duties fit in with the rest of the staff. The number of training
sessions provided by EPA appears to verify the comments made. As required
by the Memorandum of Agreement between the Regional EPA Office and the
State of Colorado, considerable training was provided the WQCD permit staff.
At least 20 significant training sessions have been held by EPA which are
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identified in Chronology I and II p. 44. Regional meetings pertaining
to program changes are not included.
Lack of Compliance and Enforcement Personnel
The chapter that follows in this report identifies the resources
available to the WQCD since program assumption, provides an analysis of
needs, and suggests an appropriate number of personnel necessary to
operate the NPDES program. (See "NPDES Program Resources.") It goes
without saying that the NPDES program was delegated to Colorado in spite
of the availability of too few personnel. Not only was the program delegated
with too few permit issuance personnel, there were no personnel assigned to
permit compliance or technical and para-professional water enforcement
functions. The Colorado program submittal provides the following description
of "Funding and Manpower".
"During FY-75, the Water Quality Control Division will have 43.5
man-years of effort at its disposal to further water quality in
the State. It is anticipated that eight man-years will be required
to administer the Colorado Permit Discharge Elimination System
program. Of these, four man-years are engineers who are presently
employed; three man-years are clerk-typists of whom one is presently
employed; and one man-year attorney time spent totally on enforcement."
As the pressure to meet the most basic compliance and enforcement needs
increased, the personnel assigned to permit issuance were apparently divided
between permit Issuance and compliance needs. That condition, to a much
lesser degree, continues to exist today.
Chronologies I and II are replete with requests to the State to
bolster the NPDES - water enforcement program. As early as December 1975,
the EPA Regional Administrator notified the State of the need for two
additional personnel to meet critical needs (Chronology I, item B).
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Additional communication pushed for relief in this area (See Chronology I,
Items H and L).
Mining Permit Needs
The need for specific mining expertise is needed in the State NPDES
program, both in the permit Issuance and water enforcement areas. There
are 80 mining and/or milling permits in the State of Colorado. The
State has assigned sanitary engineers to address NPDES mining problems.
While the WQCD has an industrial expert on its staff, he has seldomly
been called upon to assist with major mining permits or enforcement cases.
Because of the lack of focus in mining, EPA provided direct permit writing
assistance on major and controversial mining/milling permits during the
period covered by this analysis, and, when enforcement actions were
developed and settlements negotiated, EPA played a direct role in evaluating
the feasibility of alternative solutions, developing the compliance
schedules, etc. On the more routine permits the WQCD staff drafted mining
permits, negotiated compliance schedules as called for in the Memorandum
of Agreement. A stronger role by the WQCD in the mining area continues
to be a basic program necessity. EPA doubts that the WQCD is adequately
prepared for the mining "boom" that has developed.
Permit Issuance - Compliance Coordination
Coordination within the permit Issuance - water compliance sphere
of activities has suffered as a result of the high turnover, lack of
State day-by-day training and clearly enunciated procedures. The
following example related to an American Metals Climax (AMAX) (C0-CO23O)
adjudicatory hearing request is self-explanatory.
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May 13, 1977
May 23, 1977
June 14, 1977
July 22, 1977
September 28, 1977
October 4, 1977
October 21, 1977
April 24, 1978
June 23, 1978
September 20, 1978 -
October 5, 1978
AMAX requests Adjudicatory hearing; letter also
called attention to 3 minor errors in the permit.
WQCD sends letter correcting minor errors and also
calling attention to a discharge from one of the
treatment ponds.
WQCD sends delinquent self-monitoring letter to
AMAX.
AMAX answers the self-monitoring question and also
reiterates that the Company has applied for an
Adjudicatory hearing on 5-13-77.
WQCD letter to AMAX requests an up-to-date compliance
schedule.
WQCD sends violation letter for zinc to AMAX.
AMAX answers the zinc violation letter and states
that an adjudicatory hearing has been requested on
the zinc limitation, therefore, limitation was not
in effect.
AMAX transmits self-monitoring results and calls
the WQCD's attention to the adjudicatory hearing
request.
AMAX requests permit renewal and advises WQCD that
the Adjudicatory hearing matters could be dealt
with during the permit renewal procedures.
WQCD sends non-compliance letter to AMAX regarding
zinc limitation.
AMAX replies to 9/20/78 letter reiterating again,
the adjudicatory hearing request for the zinc limi-
tation.
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Administration of Adjudicatory Hearings
The administration of the State's adjudicatory hearings has been
a slow, cumbersome, resource-intensive portion of their program. The
nature of the procedure that requires the State to "consider all issues of
fact and law l/"at the hearings appears to have been a constraint. Instead
of narrowing the issues to be adjudicated to those of fact, and requiring
the Attorney General's Office to resolve issues of law independent of the
adjudicatory hearing process, the existing procedures, according to our
understanding, require the State, through the Pre-Hearing Conference,
Discovery Proceedings, and the Conduct of the Hearing, to develop the
record on legal matters that could otherwise be resolved in a much less
resource consumptive fashion. Further, it appears that the WQCD cannot
deny even the most spurious adjudicatory hearing requests.
WQCD - Attorney General Coordination
Another factor that has delayed the effective administration of the
adjudication process has been the apparent lack of coordinated decision-
making. Does the Water Quality Control Division (WOCD) have responsibility
to initiate the State's response to any adjudicatory hearing request? If
so, are its responsibilities limited to the development of technical
support data and analysis? At what point does the lead responsibility
shift to the Attorney General's Office? What are the continuing responsi-
bilities of the WQCD once the adjudication process has been initiated?
What appeal does the WQCD and A. G.'s Office have over scheduling of
hearings by the Department of Administration? To the best of our knowledge
V Section 6.1.7, Regulations for the State Discharge Permit System.
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a mutually-agreed upon working agreement has never been developed
between the WQCD and the A.G.'s Office on adjudication or enforcement
matters.
There are several examples of the lack of coordinated and timely
execution of the adjudicatory hearing process. Included are the CF&I
Steel (C0-0000621), Standard Metals (C0-0027529) and American Metals
Climax (AMAX) (C0-0000230) request. The Standard Metals (Sunnyside Mine)
request, which is still pending, is described below.
During the spring of 1976, while the WQCD was drafting the Sunnyside
Mine permit, Standard Metals indicated that they intended to request a
hearing based on the fact that the receiving water was of poorer quality
than the proposed effluent limitations. Upon permit issuance a hearing
was requested. After several meetings with the State and Standard Metals,
EPA recommended to the WQCD that a hearing be held as soon as possible
because the July 1, 1977 mandatory date had passed and Standard Metals
was not in compliance with Best Practicable Treatment (BPT). Due to the
nature of the State's Adjudicatory Hearing Procedure and lack of effective
program administration, the hearing was not scheduled until the Fall of
1978, over a year after the request. On October 26, 1978, less than three
weeks before the hearing date, the hearing officer granted Standard Metals
a postponement of the hearing until June 1979. Thus the adjudicatory
hearing on the Standard Metals permit is scheduled to begin more than two
years after the hearing was requested, and during this entire period the
permittee is without a compliance schedule to meet Best Practicable
Treatment levels that should have been achieved by July 1, 1977.
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Status of Recent Issues
A number of major program Issues were raised during the 1977 and the
1978 mid-year review sessions that were held between EPA and WQCD managers.
The lack of staff, confusion over re-organization, ineffective use of and
coordination with existing staff, need for improved coordination with the
Attorney General's Office, need for enforcement training for the State's
technical people were problems discussed during the April 1977 meeting.
(Refer to Chronology I, item L.) Comments pertinent to the 1978 Section 106
plan are of the same tenor. (See Chronology I, item P.) And, during
June, 1978, at a mid-year review session between top management personnel
from both EPA and the Colorado Department of Health, specific issues in
permit issuance, compliance monitoring, use of district engineer personnel,
compliance monitoring strategy, use of DMRs in enforcement matters, and
the need to train personnel were discussed at some length. (Refer to
Chronology I., item T) At that meeting the WQCD committed to re-issuing
all expired permits by October 1, 1978, of re-vamping its compliance
sampling procedures to insure that the results would meet enforcement
objectives, of reviewing their policy of not using discharge monitoring
report results as enforcement documentation, and of training the appropriate
enforcement personnel to meet the Attorney General's need in water quality
enforcement matters. It was also at that session that the need for this
program review was agreed to by both agencies.
The status of permit issuance is highlighted in a previous chapter as
is the use of the administrative extension of permits. The WQCD did not
meet its FY 78 permit reissuance goal promised during the mid-year evaluation
conference. At this time the State has yet to change the policy of not
using the results of their compliance sampling in enforcement matters.
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And, as substantiated in interviews, EPA knows of no training by the
State, of their district engineers or Denver Office personnel, on the basics
of case documentation, chain of custody procedures, and other enforcement
program matters needed to make effective use of staff time. It could not
be determined during program review sessions whether discharge monitoring
reports were now used as documentation 1n at least limited enforcement
actions, such as Cease and Desist Order and Notices of Violation.
Enforcement Management System
The Enforcement Management System (EMS) is a formal guideline
developed by the Environmental Protection Agency to insure fairness and
national consistency in the enforcement of NPDES permits. Each EPA
Regional Office has, with minor adjustments, adopted the system. States
that issue permits were also requested to apply the policies, priorities
and procedures enumerated in the Enforcement Management System or, to
develop an adaptation of them. The Enforcement Management System consists
of:
A. Source Inventory
B. Information Control
C. Internal Management Control
D. Pre-enforcement Evaluation
E. Enforcement Evaluation
F. Formal Legal Action and Follow-up
G. Compliance Inspections
The absence of a formally established enforcement matrix for example
makes justification of any specific action most difficult. An enforcement
matrix is found in element E. above. And without clearly understood
enforcement priorities, staff proceed in all directions and too often are
mis-directed resulting in failure to achieve the desired end. Priority setting
is also included in the EMS.
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Due to a lack of attention to the Enforcement Management System by
the WQCD staff, the EPA specifically adapted the EMS to the Colorado
program and informally transmitted the results in the form of a six-page
memorandum to the Chief, Monitoring and Enforcement Section during April
1977. See Attachment H, p. 75. Even with this head start there is no
evidence that the WQCD ever adopted any system of formal policies,
priorities and procedures that would comprise an Enforcement Management
System.
NPDES Files Management
EPA personnel audited about 10% of the major municipal and major
industrial permit files, and the following observations were made.
1. Thirty percent of the files checked did not have the originally
signed permit or even a copy of the Issued permit. Findings
indicate that two sets of files have been developed in an attempt
to minimize loss of original permits;
2. The files audited were not very efficiently organized, that is,
one must search through every piece of correspondence and
documentation to find the application and/or the permits;
3. Certified cards acknowledging receipt of issued permits were
not found with the permit;
4. Public notice information did not have any legal affidavit showing
that public notices had been published in the newspapers;
5. Discharge monitoring reports were not scrutinized for reporting
errors;
6. There was no explanation or indication of follow-up in the files
where DMRs are missing;
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7. Follow-up notations to resolve controversies generated by permittees
could not be found;
8. The state apparently allows several reporting periods of violation
before commencing enforcement inquiries.
9. The file folders are constructed of extremely flimsy material and
state funds are not available to obtain sturdier and more useful
folders.
Summaries of file audits make up Attachment I, p. 81 to this
report. In summary, the NPDES and discharge monitoring report files
at the WQCD Office are in great need of attention and can use major
improvements.
Chronologies of events referred to in this Chapter follow.
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NPDES-Water Enforcement Program
I. Chronology of Policy Issues and Assistance Provided
A. March 27, 1975
B. December 4, 1975
C. May 27, 1976
D. June 8, 1976
E. June 21, 1976
F. June 28-29, 1976
G.July 16, 1976
Assumption of NPDES permit program.
Letter from John A. Green, EPA Regional Administrator
to Dr. Edward Dreyfus, Executive Director, Colorado
Department of Health, identifying lack of performance
by State staff and the need of two additional people
to fill the most pressing needs.
Letter from John A. Green, EPA Regional Administrator
to Dr. Edward Dreyfus, Executive Director, Colorado
Department of Health, calling attention to State's
practice of extending permits for indefinite periods
of time, and granting major modifications to Denver
Metro permit without any public participation effort,
both in violation of FWPCA.
Meeting with Frank Rozich in which Roger Frenette
outlined the benefits to be derived of staffing his
NPDES program with para-professionals. Three
position descriptions provided for follow-up.
Letter from Robert Siek, Assistant Director, Colorado
Department of Health to Mr. John A. Green, EPA Regional
Administrator, replying to May 27, 1976 letter.
Includes six-page analysis of Colorado's staffing
needs. Letter identifies major problems in administra-
tion of program, the need for staff, request for staff
that was turned down by State Budget Office, and
requesting assistance.
Meeting with six state permit engineers, Attorney-
General's Office representatives and EPA staff held
at Quality Inn, Denver. Purpose: to provide States
with first-hand view of differing approaches (from
other States) and practices of permit issuance, follow-up
and enforcement. Technical-legal interface and emerging
policies were highlighted. States were requested to
develop legal-technical work practice and priorities
where needed, or to streamline them.
Workshop held between six Colorado Permit Staff members
(technical and clerical personnel), and EPA permit
staff for the purpose of providing EPA's approach to
administrating the permit program. Office practices,
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administrative procedures, work flow, communication
needs, and data management aspects were discussed
at some length. Handouts of the above, dealing with
permit issuance, compliance assurance and water
enforcement were provided the Colorado staff. State
was requested to develop a standard operating
procedure.
H. August 19, 1976 Letter from John A. Green, EPA Regional Administrator,
to Mr. Robert Siek, Assistant Director, Colorado
Department of Health summarizing changes made by
Colorado, meetings held, and suggesting several
staffing needs.
J. September 8, 1976 Letter from Robert Siek, Assistant Director, Colorado
Department of Health to John A Green, replying to
organizational issues raised in August 19, 1976 letter.
Team leader not named, reorganization still underway,
staff involved in other programs (404, energy, etc.),
that is, unsatisfactory resolution.
K. March 3, 1977
L. April 15, 1977
M. May 16, 1977
N. June 17, 1977
0. August 11, 1977
EPA staff met with and interviewed several Colorado staff
permit members to identify current operations, and
determine how the implementation of a data management
system could assist in organizing the State's adminis-
trative tasks. Responses from Colorado staff were very
negative, and managers were not aware of benefits to be
derived. (Because key individual's transfer was imminent,
decision was made not to pursue our effort at this
ti me).
Mid year review follow-up meeting by seven EPA staff
members. Lack of staff, confusion over reorganization,
ineffective use of existing staff, poor coordination
with Attorney-General's Office, need for enforcement
training by State's technical people, were problems
discussed and promises made by State to address in
remaining year.
Roger Frenette provided Paul Williamson with listing of
suggested priorities for reissuing all permits in Colorado.
Letter from Roger Frenette to Mr. Frank Rozich
assisted State by providing examples of kinds and
sizes of permit fees used by other States operating
the NPDES program in U. S. Attachments furnished.
Meeting with Fred Matter and staff with Ken Alkema,
Roger Frenette and other EPA staff on effects of
reorganization, who in State will do what, chain of
command, the need to gear staff to meet Section 106
program commitments, enforcement policies, Attorney-
General Office's role, need for paraprofessionalS-
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P. August 26, 1977 Letter from John A. Green, Regional Administrator,
to Mr. Frank Rozich transmitting comments on draft
Section 106 plan. Enforcement Division identified
strong disagreements with State policy of not using
DMRs, the wasteful and inefficient use of resources,
action needed to eliminate delays in water enforce-
ment actions and training of technical people that
is necessary. Note: The words in the Section 106
Plan were changed, but no changes were apparent in
actual practice.
Q. November 21, 1977 Letter from Alan Merson, EPA Regional Administrator
to Dr. Anthony J. Robbins, Executive Director, Colorado
Department of Health, advising of $94,000 supplemental
grant and program areas that should be considered
(includes permits compliance and enforcement) and
$20,000 to be transferred to Attorney-General's Office
for water enforcement.
R. December 7, 1977 Letter and attachment from Roger Frenette to Mr. Frank
Rozich reminding him of funding received, need to
support compliance and enforcement programs, and noting
that 24 enforcement actions are pending and delays ever
increasing.
S. May 5, 1978 Letter from Alan Merson, EPA Regional Administrator,
to Dr. Anthony Robbins, Executive Director, Colorado
Department of Health, advising of two Section 106
grant amendments and concerns over lack of State
performance in the permit-water enforcement program.
T.June 7, 1978 Mid-year review meeting between EPA and Colorado
Department of Health top management teams. Continuing
permit/enforcement problems highlighted: 60 permits
issued between October 77 and March 31, 1978 with 159
permits remaining to be issued by October 1, 1978;
problems with use of continuous administrative permit
extensions discussed; state met compliance monitoring
commitment but results cannot be used for enforcement
purposes; state district personnel not knowledgeable
of Attorney General's Office basic requirements for
case documentation; state does not use information
from Discharge Monitoring Reports to file enforcement
actions. State commits to getting all expired permits
out by October 1, 1978; of revamping compliance sampling
procedures (splitting samples with permittee) to ensure
meaningful use of results; of reviewing policy of not
using Discharge Monitoring Reports as enforcement
documentation; and training appropriate personnel to
meet Attorney General's needs in water enforcement matters.
State and EPA management teams agree to the need to
initiate a detailed program review within following
-46-
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two weeks. Roger Frenette to meet with Frank
Rozich with draft outline.
U. June 23, 1978 EPA (Frenette, Alkema and Burm) meet with Colorado
Division of Water Quality personnel (Rozich, Matter
and Wallum) to discuss program review plan and agree to
ground rules.
V. October 26, 1978 Colorado Adjudicatory Hearing Officer recorranendations
made on this date regarding CF&I Steel Corporation.
EPA, during prior 16 months, provided $9,500 to the
State for expert testimony, coordinated technical
review by steel expert, and provided staff assistance
and testimony at adjudicatory hearing sessions.
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NPDES-WATER ENFORCEMENT PROGRAM
II. Chronology of Program Operations and Assistance Provided
Delegation of NPDES Program - March 27, 1975
1975
A* Notified State by phone that insufficient training was given to
people in NPDES program. Suggested personnel from EPA spend some
time at Health Department to train and go over some problems.
B. First visit to Health Department - Train Mary Corn concerning
receipt of new apps, PN, issuances, reissuances, tracking of
facility data, etc.
C. Notified State of inconsistencies concerning assigning application
numbers and inactivating permits if a self-monitoring report was
submitted reading no discharge.
January, 1976
^ Dessie Brewer trained by Barbara Hanson concerning self-monitoring
regulations and effluent violations.
E. Arden Wallum, who handled compliance schedule events, trained by
Cathy Ruggiero.
F. State was notified of inconsistencies regarding the sending of
delinquent self-monitoring letters to facilities who do not have
permits issued or whose permits have been inactivated.
G. Barbara Hanson visits State Health to try to help Dessie Brewer
on self-monitoring problems and the tracking of effluent violations.
H. State is notified of inconsistencies in the tracking and approval
of compliance schedules. Cathy Ruggiero visits State office and
assists Arden in trying to clear up the problem.
j. Computer listings are submitted to State to try and help them
track permits and applications. This is also to help them track
permits in need of drafting. Tess Matassoni visits Health Depart-
ment to explain how the system works. Computer listings are mailed
on a monthly basis.
K. Compliance Section of EPA tries to convince State that the preprint-
ed DMR reports should be utilized by Health Department for minors.
Preprinted DMR's will cut down on engineers and administrative help
in reviewing for effluent violations. State opts to use own forms.
- 48 -
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K. State is notified that paraprofessionals are needed to take
administrative work off engineer and technical personnel's hands.
M. State is notified that amendments must go to public notice. If
significant changes are made in the permit, the State would just
make the change without notifying EPA for consultation or give
public a chance to comment.
N. Larry Quinn and Barbara Quinn, the second and third persons to
handle compliance schedule events and the quarterly non-compliance
report are trained by Cathy Ruggiero. Compliance shcedule com-
puter listings are provided to aid the State in tracking schedule
date violations. Inconsistencies and improper correspondence
problems and solutions are discussed.
January, 1977
0. Judi Dukat takes over the handling of new apps, PN, issuances and
tracking of facility data, etc.
P. Judi Dukat is trained by Tess Matassoni regarding above and how
the computer system works.
Q* State is notified that the assigning of NPDES numbers are to be
assigned from listing that EPA supplies them with. State continues
to make up NPDES numbers.
R. EPA is notified that certain files have been misplaced and the State would
like copies of pertinent data pertaining to these files be sent
to the Health Department.
S. EPA personnel participate in conference with State personnel
concerning engineers' and clericals' scope of duties.
T. State is notified that compliance schedule events and DMR tracking
is inconsistent.
U. Paul Williamson, Judy Dukat and Karen are trained by Cathy Ruggiero to handle
compliance schedule events and the quarterly non-compliance report.
Inconsistencies and incorrect correspondence problems and solutions
are again discussed. Paul and Judy were trained at our office
and Karen was trained at the State office.
V- State Health Department begins extending expiring permits instead
of drafting renewals.
-49-
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1978
X. State notified of inconsistencies regarding criteria used to
identify majors.
Y. EPA notified that State wishes to utilize our DMR preprinted
forms. Employee sent to EPA for training. EPA notified in two
weeks employee has left. Another will be sent for training.
Z. Technician is assigned at Health Department. Now too many people
are handling the same duties. Personnel from Health Department
complain that they do not have delineation of duties explained to
them when they come on board.
AA. During this year Paul Williamson is reassigned and Arden Wallum
takes over. State is notified of responsibility to review and concur on
Federal permits issued by EPA. State remains confused on this
issue.
BB. Judi Dukat notified EPA of her quitting. New person takes over
tracking of permits. This person will also handle compliance
schedules.
CC. More inconsistencies regarding files, compliance schedules and the
quarterly non-compliance report.
DD* state requests EPA lend assistance in sending of 301(i) compliance extension
letters to municipalities in Colorado.
EE. EPA notifies ^0 municipalities of opportunity to apply for Section
301(i) extension, sends out reminders, answers calls and letters
and provides State with list of 131 municipalities who applied.
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NPDES PROGRAM RESOURCES
Past and Present Program Support
At the time of Colorado's request for the NPDES authority on
December 27, 1974, State personnel identified a need for eight workyears
of effort to adequately staff the NPDES program. Six of the eight employees
were on board, and EPA agreed to supply the State with clerical aid until
Colorado could obtain funding to hire the other two clerk-typists.
Additionally, one workyear of effort (legal) was allocated for enforcement
and 10.5 workyears were allocated for compliance (sampling) and O&M efforts.
The funding at that time was $106,848 for permits; $34,205 for enforcement;
and no allocation for compliance assurance. This resulted in a total of
about nine workyears of effort and $141,053 funding for permit issuance,
compliance assurance, and enforcement. Compliance and ambient sampling
and O&M functions were allocated $153,082.
The FY-78 Section 106 grant application identifies nine workyears
allocated for permits, two workyears for enforcement, and 5.1 workyears
in compliance assurance and 0&M (sampling is not included). The funding
for these programs is $166,233 for permits; $33,667 for enforcement and
$94,879 for compliance assurance and 0&M. The total for these programs in
FY-78 is therefore, 14.0 workyears of effort and $259,900 funding."
Thus, the allocation of resources for permit issuance, compliance
assurance and enforcement increased from about nine workyears in FY-75 to
14.0 workyears in FY-78, a 50 percent program growth. Likewise, funding
allocated to these functions has grown from $141,053 in FY-75 to $259,900
in FY-78, an eighty percent increase.
If .Assumes that of 5^1 workyears allocated to compliance assurance and
0&M, 3.0 workyears and $57,000 are for compliance assurance purposes.
- 51 -
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When Colorado requested the NPDES program, there were 556 NPDES permit ap-
plications in the State. There are now 950 applications—a 70 percent increase.
Analysis of Program Resource Needs
The Headquarters Office of EPA developed national workload models for key
activities of the NPDES program (see Table 6). These productivity measures re-
flect average Regional requirements based upon seven years of experience. While
some variation may occur among the States, these models can serve as a guide
for determining the number of staff needed to operate and maintain an NPDES program.
The productivity measures include all the time needed for any required
permit effort, including supervision. On the basis of these measures, it is
estimated that the following workyears of effort would be needed in FY-79 to
administer an effective NPDES program in the State of Colorado.
The Permit Issuance Needs are computed below.
Permit Issuance Needs
Reissue/modify major permits
1/
Workdays Workyears
Average - 136 major permits = 45 x 15 days 675 3.1
3 year permits
2. Reissue/modify minor permits
Average = 814 minor permits = 158 x 4 days 632 2.9
5 year permits
3. Conduct and settle adjudicatory hearings
3 x 200 days 600 2.7
Total 1907 8.7
Based on the national workload model, Colorado would require 8.7 work-
years of effort to effectively issue and reissue all of the major and minor
permits in the State.
1/ 220 workdays = 1 workyear
- 52 -
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TABLE 6
EPA Workload Model
National Productivity Indices
Permit Issuance
1. Reissue/modify major permits
2. Reissue/modify minor permits
3. Conduct and settle adjudicatory hearings
for major permits 150 days to conduct
50 days to settle
100 days total
Compliance Assurance
1. Maintenance of source inventory
2. Pre-enforcement Evaluation
3. Enforcement Evaluation
(including compliance schedule functions)
4. Preparation of Non-Compliance Reports
Enforcement
1. Administrative Orders and Notices of
Violation
2. Municipal Referrals to State Attorney
General (Legal and Technical)
3. Industrial Referrals to State Attorney
General (Legal and Technical)
15 days/permit
4 days/permit
200 days total
.37 years/1000 DMR.'s
.18 years/1000 DMR's
.11 years/1000 DMR's
.66/1000 OMRs
.08 year/QNCR
3 years/100 actions
1 year/case
1.25 years/case
- 53 -
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The Compliance Assurance Needs are computed below.
Compliance Assurance Needs
Workyears
1. Maintenance of Source Inventory
Major Self-Monitoring Reports
136 x 12 months = 1642 x .37 years/1000 .6
Minor Self-Monitoring Reports
790 x 8 months = 6320 x .37 years/1000 2.3
(Reviewed on the average every 1 1/2 mos.)
2. Pre-enforcement Evaluation
Major Self-Monitoring Reports
136 x 12 months = 1642 x .18 years/1000 .3
Minor Self-Mon1tor1ng Reports
790 x 8 months = 6320 x .18 years/1000 1.1
3. Enforcement Evaluation
Major Self-Monitoring Reports
136 x 12 = 1642 x .11 years/1000 .2
Minor Self-Monitoring Reports
790 x 8 months = 6320 x .11 years/1000 .7
4. Prepare Quarterly Noncompliance Reports .08 year x 4 .3
Total 5.5
Based on the workload model, the Water Quality Control Division would
require 5.5 workyears in compliance assurance to carry out this portion
of the NPDES program.
Enforcement Needs
Taking a point 1n time of October 1, 1978, Colorado had 16 major
industrials and 45 major municipals out of compliance. We believe the
national workload model indices are too high based on Region VIII experience.
National workload indices assume that each enforcement action is
litigated. Region VIII experience shows that few actions are actually
- 54 -
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litigated and because of this, only 0.56 workyears per case have been
needed by the EPA Regional Office for the mix of municipal and industrial
cases. Therefore, using the above violations as an average, we have
calculated the following resource requirements based on our Regional
workload Indices of 0.56 workyears per case and not the 1.25 or 1.0 work-
years per case given in Table 6. The major violations are subdivided
into 48 Administrative Orders and 13 referrals, a proportion extracted
from Colorado experience during the period of this analysis. The manpower
needs for enforcement of the Clean Water Act are computed below.
1. Administrative Orders and Notices of Violation
.03 years/action x 48 cases 1.4
2. Referrals to State Attorney General and
technical follow-ups to completion.
.56 workyears x 13 cases 7.3
Total 8.7
Using national workload indices adapted to Regional experiences,
the analysis points to the need for 8.7 workyears of technical and legal
effort to successfully address and follow through major NPDES enforcement
actions.
Summary
Table 7 provides a summary of the WQCO's current workforce allocation
and a comparison with program requirements developed from workload models.
- 55 -
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TABLE 7
Resource Summary
(in workyears)
FY-78
Allocation
Program
Requirements
Hard
Needs
Permit Issuance
9.0
8.7
Compliance Assurance
Water Enforcement V
3.0 1/
5.5
2.5
2.0
8.7
6.7
Total NPDES Program 14.0
22.9
8.9
iy Assumes that of the 5.1 workyears allocated to compliance and 0&M,
3.0 are of compliance assurance nature.
2/ These activities include all functions.
This analysis indicates that 22.9 workyears of para-professional,
professional and legal effort would be required to carry out an effective
NPDES program. Supervision and clerical needs are included therein. It
appears there are adequate number of resources for permit issuance if
managed correctly and allowed to place 100 percent of their time in permit
issuance; however, hard needs of 2.5 and 6.7 workyears are needed in the
compliance assurance and enforcement areas, respectively. Those two areas
are not funded at sufficient levels to ensure compliance with requirements
of the Clean Water Act. The analysis shows that overwhelming needs are in
the water enforcement area. Findings given in preceding chapters of this
report verify these results.
- 56 -
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ATTACHMENTS
- 57 -
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STATE OF COLORADO
ATTACHMENT A
ACTIVITY
Organizational conference
File Review
File Review
Interview
I
in
00
1
Interview
Interview
NPDES PROGRAM REVIEW
PROPOSED PLAN
DESCRIPTION EPA STAFF PARTICIPANT STATE CONTACT/ PARTICIPANT
Reach understanding of program Frenette, Burm, Alkema F. Rozich 6/23^78
F. Matter
Review 10% of major municipal T. Matassoni Arden Wallum
and 10% of major industrial
permit files.
Review discharge monitoring B. Hanson
report files and water
enforcement files for
adequacy of documentation, etc.
With secretarial and technical Matassoni & Burm Karen Young
staff members. Trace flow Richard Summer
of correspondence, controls,
tracking, priority "setting,
delegations of authority
With secretarial and paraprofessional Hanson, Fischer
staff members. Logging of DMR,
tracking of violations, State
response, follow-up action, use
of state monitoring, etc.( Com-
pare with EMS guidelines.)
With secretarial, technician, Ruggiero, Alkema
and technical staff members.
Compliance schedule activity,
flow of correspondence,
tracking of violations, coor-
dination with construction
grants and Attorney General's
office, quarterly noncompliance
report.
Betty Simmons
Stan Mays
Des1 Brewer
Betty Simmons 5
Dick Summers £
Karen Young ==
Arden Wal1um =j
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Page 2
ACTIVITY
DESCRIPTION
EPA STAFF PARTICIPANT
STATE CONTACT / PART ICI PANT
Policy Discussion
Policy Discussion
tn
10
With Attorney General's A Frenette
office representative. \ Lepley
Agreements with Dept. \ Alkema
of Health; service pro- \ Burm
vided; unmet needs, etc. \
With Division Director, \
Deputy Director, on V
implementation of CWA, |
technical and legal \
policies of Permit Program,
Monitoring, Compliance, and
Enforcement.
Frank Rozlch
Sharon Metcalf
Fred Matter
Arden Wall urn
Betty Simmons
Exit Conference
Discussion of tentative findings
NOTE: Sessions will be scheduled in such a way as to minimize disruptions to State Office. EPA will contact
Mr. Fred Matter to schedule all visitations at State Office. Mr. Matter will be responsible for
arranging for a meeting room.
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..TTACHMENT B
COLORADO DEPARTMENT OF HEALTH - 4210 East 11th Avenue - Denver, CO. 80220
Water Quality Control Division
File Copy
Transmittal I.O.C.
W1]11 am Auber1o 9/2/73
Frank J. Rozlch Memo August 18, 1378
Sel M'onl tor Ing/Enforcejnent
The policy of the Watar Quality Control Division has always been
to utilize the self-monltorlng reports as a tool of enforcement. The
self-^onltorlnn reports are routinely checked and If they Indicate a
violation of the discharge permit Units, one of four actions are taken.
If the permit violation Is minor such as chlorine and/or fecal
col I form limits, the D.E. Is asked to work with the entity and correct
the violation, if the permit violation Is more than a minor violation
but not significant, the entity Is generally contacted by letter pointing
out the violation and asking for response as to cause and correction.
At tines, depending on the situation and Q.E.'s recunxncnd.itIons,
the entity is asked to come in for a neetim; whsre they are presented
w I tii the facts of the violation and asked to cone up with 3 compliance
schedule which, If satisfactory, is then adhered to, probably with an
order.
If t!ic pemit violation Is significant enforcement -Jrnr>]<»5 ctre
cjcnerally collecteo limnedlately, depending sonewhat cn v.-rot die district
angineur savs.
The self-^onitofing reports are, therefore, used a r^nns to
tri
-------
ATTACHMENT C
COLORADO DEPARTMENT OF HEALTH
4210 EAST 11TH AVENUE • DENVER, COLORADO 80220 • PHONE 388-6111
Anthony Bobbins, M.Q., H.P.A. Executive Director
November 15, 1978
Ref: 8E-PC
Mr. Roger E. Frenette, Chief
Permits Administration and Compliance Branch
Enforcement Division
Environmental Protection Agency
i860 Lincoln Street
Denver, CO 80295
RE: Colorado NPDES Program Review
Dear Roger:
In response to your letter of October 2k, 1978, requesting additional
information on the outputs and policies of the Colorado NPDES permit
program, I am enclosing tabulations by quarters in FY 78 of your items
a. through e. listed under number 1.
Number 2 - I am enclosing a copy of the Colorado Water Quality Control
Commission's Guidelines for Assessment of Civil Penalties
for Violation of Permits, adopted May A, 1976.
Number 3 ~ Copy of an IOC from Frank J. Rozich to William Auberle,
relative to Self-Monitoring/Enforcement.
I trust that this give you the necessary additional information; how-
ever, should more be desired or should you have any questions, please
ca 11 me.
Very truly yours,
WATER QUALITY CONTROL DIVISION
Fred Matter, P.E., Chief
Monitoring 5 Enforcement Section
FM:ef
Enclosures
- 61 -
-------
OCTOBER 1977 - SEPTEMBER 1978
FY - 78
a. Self-Monitoring Violation Number
October - December 1977 22
January - March 1978 51
April - June M
July - September 38
b. Compliance/Enforcement Monitoring
October - December 1977 ^
January - March 1978 13
Apri1 - June 9
July - September 22
c. Enforcement Conferences Conducted
October - December.1977~
January - March 1978
Apr i1 - June
July - September
d. Notices of Violation and Administrative
(Cease and Desist Orders) Issued
October - December 1977 2
January - March 1978 **
Apri1 - June '8
July - September 26
- 62 -
-------
October 1977 - September 1978 (FY - 78, continued)
Number
I
1
3
1
- 63 -
e. Penalty Actions approved by the Water
Quality Control Commission
October - December 1977
January - March 1978
Apri1 - June
July - September
-------
attachment d
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GOVERNOR
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DEPARTMENT OF HEALTH
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DIRECTOR WATER QUALITY
CONTROL DIVISIOII
" ~" ^'JmTER QUALITY CONTROL COiViSSIC"!
ItECHMCAI. SECSETA?..)
senior information
REPRESENTATIVE
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ASSISTANT
DIRECTOR
SECRETARY I A (2T
STEliO TRANSCRIBER I (Shorthand)
STENO TRANSCRIBER I
ADMINISTRATIVE TYPIST (2)
FIELD SERVICES
ENGINEERS (C)
MONITORING AND
ENFORCEMENT SECTION
Effluent 6 Stream Monitoring
Non-Point Source Control
Waste Discliarqe Permit Program
Engineers (5)
Aquatic Biologists (2)
Engineering Technicians (7)
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-------
ENVIRONMENTAL PROTECTION AGENCY
ATTACHMENT E
AUG 1 9
Ref: 8E-PC
Mr. Robert 0. Slek
Assistant Director
Department of Health
Environmental Health
4210 E. 1-1 th Avenue
Denver,-Colorado 30223-
Oear Mr. _S1ek:
Thank you for your letter of "June 21, 1975, responding to currant issues "
-involved in-Colorado'5 administration of the percrit prG^ri-n. During
the interim,, several meetings have been held between our respective staff?
as wel 1 as^wttir the Attorns^-=^eral's^ctffiee-^The--extension of-E>ers»-ts —
by letter has since been terminated and the elimination of effluent limi-
tations from permits without public participation has also been changed.
The definition of what constitutes a "significant change" in a permit
condition, thereby requiring public participation, has also been clarified^
We understand the resource problem that the administration of the perait
program carries and strongly endorse your strategy of setting expiration
dates which result in a nsore uniforn administrative vwkload.
Changes in work assignments as well as the restructuring of the permit
program workload are well - underway. Your staff report clearly lays out
the basic manpower requirements of the Section 402 pemit program. Tha
staff level Indicated is well justified, according to our experiences. ;
Ue 'nave the following suggestions and coi^nents;
1. A teara leader is nseded who can roanage and drive the program on a
day-to-day basis.
2. Administrative functions should, to the raaximusn degree possible,
be separated frcn»-th& technical, professional duties and the
positions filled accordingly.
3. It appears that tlPDES personnel are being employed in too many
other areas such as Section 404, energy studies, etc., to
maintain a cohesive HPDES operation.
4. "either this office nor the three other Statas in the ^eqion who
operate the perrait program have experience 1n using administrative
- 65 -
-------
2
personnel to carry out both para-professional tasks and typing/
secretarial duties. The functions are separated. Tiris does not
Imply that your approach will not work, however.
5. With the large number of penrits your office roust handle, we
recownend the use of a full-time file clerk. Gecause of the
"paper SVizzard" associated with the nPDES program, we have
found that the benefits derived by the office far outweigh
the costs.
Ue have questions regarding responsibilities in the permit program and
would appreciate a response to the attached questions. Your help hers
will also help improve coordination between our respective offices.
will be happy to assist in training new personnel and in providing
continued assistance in suggesting organizational arrangements and
Sincerely yours,
3:3r!ED BY
"i:-;, A. GREEN
John A. Green
Regional Administrator
Enclosure
- 66 -
-------
Who is responsible for the Colorado Permit Program?
. This involves establishing goals, priorities and technical require-
ments for processing, and issuing permits and monitoring permit
reports on a day-to-day basis;
. Programming work for Permit Team Members;
. Directing total permit program operation;
. Developing administrative procedures and organizing personnel for
smooth work flow and the handling of exceptions;
. Setting and changing policy and assuring consistency in permit
issuance;
~T" Rec efvfng an~d processTng a IT perrnit appl ications; ~~
. Conducting on-site inspections'of permit facilities;
. Coordinating all permit aspects with EPA and State Offices;
. Initiating, directing, and coordinating effluent monitoring efforts
and inspections of permit facilities;
. Reviewing discharge monitoring reports, comparing with State sampling
results, and recommending investigations;
. Reviewing and approving/disapproving compliance schedules;
. Initiating and coordinating enforcement investigations with Attorney.
If the above mentioned functions are shared by more than one individual,
what is the relationship between the permit issuance and compliance assurance
efforts? Who is responsible for permit issuance? Who is responsible for
compliance assurance?
V.'hat is the relationship between compliance assurance and the enforcement
function? Who is responsible for initiating enforcement actions and
providing the technical support?
Who is responsible for reviewing both the discharge monitoring reports and
State effluent monitoring results? Does this person also recommend enforce-
ment actions? Who adjusts the State effluent monitoring strategy to reflect
discharge monitoring results and the review of State effluent monitoring?
What role do the District Engineers play in permit issuance? In Compliance
Monitoring? In enforcement investigations? Will they perform added
permit functions in the future?
EncloSUre
- 67 -
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ATTACHMENT F
COLORADO OEPAP3TJVIE3MT OF HEALTH
.3
4210 E. 1TTH /VENUE DENVER 0O22O jj PHONE 303*6111
ANTHONY ROBBINS. A. EXECUTIVE DIRECTOR
ncCEIVED
September 8, 1976
SEP 1 5 1975
£NFO!vcL.
-------
Page 2
RE: 8E - PC (Continued)
2. Similarly, the above applies to the questions regarding permit
jssuance, compliance assurance and enforcement actions.
3. The present role of the District Engineers in permit issuance
is at the present, relatively minor. It is hoped, that, at some
future period, the District Engineers will be more actively in-
volved not only in permit issuance, but also in compliance assur-
ance and enforcement actions.
Reference the question on monitoring discharge reports and state
effluent results, we are planning a new approach to both self-
monitoring review and scheduling of effluent monitoring. Briefly,
we plan to utilize the data from the routine stream sampling pro-
gram comparison with trends based on the historical data, and
self-monitoring data, to schedule point discharge monitoring.
All samples will be collected and handled routinely as legal sampl
This approach .should provide a closer relationship of sampling
with water quality goals.
Robert D. Siek
Assistant Director, Department of Health
Environmental Health
RDS/vs
- 69 -
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PERMIT PROGRAM CLERICAL PERSONNEL DUTIES
Dessie Brewer, Administrative Clerk Typist A
Self Monitoring (all aspects)
Special Projects
Typing as assigned
Serves as backup for others as required
Answers procedural and administrative questions concerning her assigned duties.
Mary Com, Secretary IA
Has full responsibility for the detail work connected with permit issuance
commencing with a review of the first typed draft of permits to ascertain
clerical ^errors, (material with errors is to be returned to the Clerical
Supervisor for handling), and on through timely issuance of the final permit.
Any problems encountered during this process are to be brought to the attention
of the Clerical Supervisor or the Section Chief. During the permit issuance
process, will make the appropriate entries in the various status logs so the
status of any particular -pe&jiit will be readily apparent and information
available for required reporting and/or inquiries. Answers procedural and
administrative"questionsueoHGerning her assigned duties,."Typing as assigned.
Handles special projects. flaridleiS special projeclsT Assists with telephone.
Serves as backup for others as required.
Judith Dukat, Administrative Clerk Typist A
Prepares reports as necessary, (weekly, monthly, annually).
Coordinates transfer of permit information between EPA and the State.
New and Renewal Applications
Permit Fees.
Logs in drafted permits prior to their being typed, (forwards to Supervisor).
Compliance reports and associated detail work.
Answers procedural and administrative questions concerning her assigned duties.
Assists with telephone.
Special Projects. Typing as assigned.
Serves as backup for others as required.
Vera Snyder, Administrative Clerk Tyoist A
Typing duties as assigned.
Xeroxing
Special Projects
Serves as backup for others as required.
Other assign ments to be developed as program knowledge increases.
Karen Young, Administrative Clerk Typist A
Typing duties as assigned.
Filing
Maintains record of livestock operations not requiring discharge permits.
Serves as backup for others as required.
Other assignments to be developed as program knowledge increases.
Note: The above assignments will be followed until further notice. Additional
and/or expanded duties are being considered for the clerical staff in order
that the permit engineers may devote more of their time to the technical
aspects of the program. ^
- 70 - Sep^enber 3, 1976
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ATTACHMENT G
Octoiier ID, 1978
WATER QUAI.ITY CW/lltf4, DIVISION
legal - - - Water Quality- - -
Cntinscl Control (.'cmn.
Evan Hi Mine
noneuo Rupp
(vacant Sleno Tr. )
Division Director
Frank Rozich
Field Services
Roger
5nadt»s
~H|1iIm;i sL Ine
Jerry
Itnunian, Richard
Cooper, Sam if; 1
Ear ley, W i I I lam
lllnimn, II. Fred
Knrlin. Illchnnl .1
I finis, Dcrald A.
Malm, Clarence 0.
Muck, Joseph
Prnncan, Ituland
Soldano, Gary
Tistinic, Tin huh II.
Williamson, Pnul K.
(vacant P.II.E. A)
Jr.
Clerical Suiiervisoi—
Simoons, Hetty L.
Ill Iss, Gerald
Conneil, Uiris E.
Day, Bnlty J.
Elzl, Jndltli
Frledciiunn, El en nor
Uoss, Marslui
Serrano, Christina
Singer, Vivian S.
Tafoya, Juanita
Yoting, Karen
(vacant Typist A)
(vacant A.C.T. A)
(vacant A.C.T. A)
Monitoring fc Enf.
M;iIter. Fred
Anderson, R. Dennis
Mars, J. lVter
FJnney, Ricky
(vacant Researcher)
Oodjiar, Cilcnn
May, Stanley
Kulile, Jon
Hansen, Ed.wuil
I'log, Dennis
Sr|iiiro, Sandra
(vacant En^rAide)
Walliun, Ardcn
Uirgncs, Dwl|;lit
Uiubrilo, James
Fonville, David
Snider, Steven
Simmers, Rlcliard
(vacant Higr. Aide)
Plant Operators
Certification Bd.
-Acini n. Officer
W. Fllnn
l
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ORGANIZATION AND DUTIES OF HATER QUALITY CONTROL DIVISION
Legal
Counsel
W.Q.C. - -
Commission
3 FTE
Division
Di rector
Plant Operators
Certification Board
Administrative Officer
Clerical
14 FTE
— Legal Counsel
Field Services Monitoring & Water Quality
15 FTE Enforcement!.... Management Planning
21 FTE
7 FTE
Technical
Servi ces
7 FTE
General
Services
10 FTE
Field Services: 10 Districts - 5 district offices + La Junta; rest handled
out of Denver
1. Division represented in the field
2. Wastewater treatment plant inspections
3." Site location evaluations
4. Drinking water facilities
communi ty
non-coirmuni ty
5. Solid waste sites inspection
6. Investigate spills in their area
7V Provide input to other sections on enforcement actions, permits,
construction grants, col 1ect .samples when necessary, operator
" training, recomendations on planning and enforcement.
8. Review plans and specifications of non-construction grant projects.
9. Review O&M Manuals
Monitoring and Enforcement: 3 district offices - permits; 3 district offices -
sampli ng
1. Collect & analyze samples
stream - 124 stations, 28 primary
effluents - surveillance and enforcement
special studies --field lab, etc.
2. Hold pre-enforcement conferences
3. Issue fJotice of Violation and Cease and Desist Orders
4. Issue Clean-up Orders
5. Enforcement conferences with attorneys
6. Adjudicatory hearings
7. Court actions
8. Received fines to Commission
9. Review self-monitoring data and issue notices
10. Issue and re-issue JIPDES nermits
11. Drafting of regulations - Mater Quality Standards, Groundwater Regulations
12. Review Federal and other states' regulations & comment on same
13. Provide information as requested
- 72 -
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¦idter Quality Management Planning
1. Continuing planning process
2. Establish waste load allocations for stream segments
3. 208 point source plans for non-designated areas of the state;
state wide Mining BMP & Construction BMP
4. Establish facility plan boundaries
5. Review 201 facility plans for population projections and levels
of treatment required
6. NPDES permit reviews and comments
?. Site application reviews and comments
8. EJS reviews
9. A-95 reviews
10. Subdivision reviews
11. Subsurface disposal permits issued .
12. Subsurface disposal self-monitoring reports reviewed
13. Pits, ponds, and lagoons inventory
14. Review Federal and state regulations and comment on same
15. Stream classification recommendations
16r-RnjvtdB~Tnformat+orfWrequested
Technical Services
1. Process Federal grant applications
2. Process Federal grant increases
3. 0 & M Manuals reviewed
4. Plans and specifications reviewed - domestic and industrial
5. Process State grant applications
6. State 0 & M Manuals reviewed
7. Spill reports compiled
8. Manpower training
9. Drafting of regulations either individually or on committee
10v Review Federal and state regulations and comment on same
11. Provide information as requested
12. Work towards assuming more of the Federal construction grant
program; presently performing 3 functions - Plans & Specifications,
Change Orders, & Plan of Operations. Plan to take over 24 of 28
functions. Hope to begin takeover on Jan. 1.
General Services
1. Review and approval of plans and specifications for public water
supplies
2. Review and approval of plans and specifications for other supplies
3. Review of P&S for swimming pools
4. Review of self-monitoring da'ta for bacteria and turbidity
5. Review of self-monitoring data for inorganic a organic chemicals
and radioactivity
6. Notify violators - phone and letter
7. Review requests for waivers
8. Issue waivers
9. Manpower training (water operators)
10. 404 permit certification
11. ISDS reports received
12. ISDS regulations reviewed
13. Assist with plumbing examination
14. Review and comment on Federal regulations
- 73 -
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Division as a whole
1. Annual report to Commission
2. State/EPA Agreement
3. Biennial report to Congress - 305(b)
4. Annual budget
5. Training of Hater & Wastewater Operators
6. Operator certification
7. Serve on various committees
8. Propose regulations
9. Testify at legislative corrmittee meetings
10. Participate in workshops as needed
- 74 -
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ATTACHMENT H
ENVIRONMENTAL PROTECTION AGENCY
SUBJECT: Suggestions to Assist , la the Development of a Mora Effective
Permit Progras./
Realizing, the 4tate of flux wftlch currently exists at the Colorado
Department of Health* 1mpI«entat1on of sent NP3ES guidances nay not
be feasible at this time. However, when positions relative to the
projected reorganization are mads known, an opportunity for restructur-
ing the 1a-house operations will be afforded.
Program admlnlstration requires a broad general Knowledge of the law* -
the political situation, budget and personnel management. An administrator's
duties Involves a perspective not compatible with direct Interaction
with NPOES permittees 1n enforcement proceedings. In his capacity as
administrator, the director of a program cannot keep In tune with the
technical requirements of the program, maintain any semblence of aware-
ness of a particular permittee's compliance record and current status*
nor take the time to be properly updated for each enforcement Issue.
Colorado's political situation 1o Itself* requires a check and balance
situation where the administrator 1s isolated from programs conflicting
in circumstance* e.g.. Construction grant funding lacking 1n the mist
of HPKS permit noncompliance or technical assistance fallings leading
to the necessity for enforcement.
The structure most deslreable for MP0E5 program adnlnlstratlon Is first
to Isolate the authorities for programs of potential conflict. This
Isolation means granting the authority as well as the responsibility for
managing each program to a lower line chief* yet allows for some Input
from the administrator and for final concurrence. The structure certainly
does exist to a degree at the Colorado Department of Health, yet the
compactness of the Water Quality Control Division management matrix
does not fit this described model. The following organization should
be evaluated as an alternative for Implementation by Colorado:
DIRECTOR"
CHIEF, ENFORCEMENT
CHIEF, ASSISTANCE PROGRAMS
PERMITS
ISSUANCE
COMPLIANCE,
PERMITS
GRANTS
OPERATOR
CERTIFICATION
TECHNICAL
ASSISTANCE
CONCURRENCES-
ITMIOl* j>
CURNAMf ^
OATS ~
EPA FORM tazo-l
-75 -
OFFICIAL. FILE COPY
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-2-
The primary concern here Is enforcement. Permits need to be properly
Issued before they can be enforced, but need to be enforced once Issued.
The credibility of any regulatory program 1s dependent on the uniformity
that 1t posses, and even if cutbacks due to lack of resources Is
necessitated, uniformity over a narrower range 1s needed. The Enforcement
Management System (EMS) recognizes the need for enforcement consistency,
the resource limitations often imposed, and a process for working within
the program constraints. Major aspects of EMS are:
1. Source Inventory
a. Name, location, permit number.
b. Effluent limitations, compliance dates.
c. Compliance record, construction progress.
The development and maintenance of the Inventory is a clerical function
requiring routine updating for the basic types of information. Automated
systems are available for storing of this Information, but as with all
Inventory information, 1t 1s necessary that only one group be clearly
responsible for Its maintenance.
2. Information Control - Tracking
a. Compliance schedules.
b. Construction grant information.
c. Discharge Monitoring Reports.(DMR).
d. Compliance Inspection reports.
3. Information Control - Response
a. Reports from State Agencies.
b. Reports from Federal Agencies.
c. Citizens complaints.
d. Adjudicatory Information.
e. Noncomoliance reports (including OMRs).
f. Modification and variance requests.
Tracking of reports as listed in item 2 to insure their submittal and
item 3 to Insure adequate timely responses to those of item 3 1s an
essential program function whlcb is basically that cf clerical personnel.
- 76 -
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¦3-
Agaln, automation can assist 1n the proper Integration of the material, but
responsibility for the reports control must be clearly Identified.
4. Internal Management Control
This consists of Insuring the proper utilization of those reports of
items 2 and 3 and Integrating those reports for:
a. Establishing an enforcement record for each source.
b. Establish models for evaluation of the Agency's activities
1n meeting the program objectives.
5. Pre-enforcement Evaluation
This process 1s the screening of the available data to d1st1nqu1sh
sources that are 1n obvious compliance from those which may be 1n
noncompliance. The functions can be performed by para-professlonal
or administrative staff members checking for:
a. Report submittals.
b. Completeness of Discharge Monitoring Reports.
c. Any deviation of reported discharge data beyond the
permit limits.
d. Utilization of the Technical Review Criteria of
Attachment II of the EMS Guide to establish significant
violations 1n the case where limited resources constrain
the degree of follow-up.
The staff member responsible for the screening, should utilize a violation
and follow-up summary similar to Attachment III of the EMS guide to record:
a. The violation indicated by the OMR.
b. The action taken on the violation.
\
1. No further action
2. Telephone call
3. Standard form letter
4. Referral to professional staff.
- 77 -
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-4-
6. Enforcement Evaluation
Utilizing the Information which filters up from the pre-enforcement
evaluation, the technical staff would make a determination of the
appropriate course of enforcement action. Guidances should be established
to aid 1n determining the proper action to Insure a consistent and
credible program. In cases resulting 1n referrals to the legal staff,
the technical people should maintain awareness as to both the technical
and legal Issues.
7. Compliance Inspections
Compliance Inspections are an Important means for establishing the
compliance status of a source. The actual scope of the source Inspection
may vary, but all sampling Inspections should be done In accordance with
those procedures necessary 1n establishing a violation, i.e., correct
sampling types, split samples, chain of dustody, etc. For cases requir-
ing samples over a period of several days In order to establish a violation,
self-mon1tor1ng can be utilized 1n conjunction with the Agency's compliance
monitoring. The compllance monitoring would substantiate the validity of
the source generated data.
To Iceep afloat 1n the tide of Information available 1n the NPOES program,
an Agency must be systematic. Information 1s available for a reasonable,
logical approach to compllance analysis, and to waste the data available
through discharge monitoring reports not only wastes a valuable resource
but also taxes, unnecessarily, the compllance monitoring system.
As Colorado has presently six district offices and a proposed expansion.
It is essential-that centralization for the enforcement decisions Is
evaluated. The district enqlneers serve as Information sources and 1n
assistance programs, but too much dependency on the D.E.'s for enforce-
ment matters serves only to muddle tracking procedures and lend Itself
to an Inconsistent program. The main office should not only serve as a
focal point for program objectives, but also needs to be a clearing-
house for enforcement activities, with quality Input from the various
information sources.
Staff levels 1n the Denver office need to be sufficient for adequate
review of the materials and tracking. The following levels are recommended
as a minimum staffing for compliance purposes only:
2 Staff Engineers
- 73 -
-------
-5-
1 1/2 Para-professionals- one designated review of discharge monitoring
reports for completeness* Initial follow-up, referral to staff engineers
for further action—1/2 designated for compliance schedules tracking and
processing.
3 Clerical - the clerical duties should Include discharge monitoring
report pre-screening and tracking, typing, telephone, and other clerical
functions. In addition, a specific Individual should be assigned
responsibility for maintaining the files.
In summary, the needs for a good Enforcement Management System are not
purely technical, but do, Infact, rest heavily on the clerical functions
of inventory, tracking and screening. This frees those Individuals of
a technical background to function 1n their desired area, undaunted by
the activities necessary to the program for which they fall to perform
adequately because of their over qualifications.
- 79 -
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ENVIRONMENTAL PROTECTION AGENCY
sowwrr
1. Overall organizational structure which supports program needs.
2. Use of all conpllance related Information. Since self-nonitorlng
is the largest single source of compliance Information, its proper
use 1s essential to any eaapllance program.
3. Peralt violations and follow-up oust be tracked.
4. Adequate clerical, part-professional and engineering support oust
be available.
5. Procedures for information flow oust be established.
6. One organization unit nust be responsible for: (1) identifying
penslt violations* (2) tracking responses to violations* (3)
coordinating all appropriate Input to violations and (4) assuring
compliance after violation occurs.
7. Gcoaunlcatlons levels between technical and legal staff oust be
open.
8. Files nust be aaintalned In a centralized location with a specific
- Individual designated responsible for their maintenance.
CONCURRENCES
KHHk ^
•UHNAMI >
OA-re ~
1
j
j
i
-
OFFICIAL FILE COPY
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ATTACHMENT I
NOTES ON
FILE AUDITS AND INTERVIEWS
Eleven permit files were selected, and each file was audited. The
eleven files audited were Mid Continental Coal and Coke, Great Western
Sugar at Loveland, Evans Sanitation, Stanley Aviation, Upper Thompson,
Georgetown, Colorado Ute, Public Service at Arapahoe, Table Mesa, Harold
Blitt. and DM & H Cattle.
The audit was rather difficult to perform because of the lack of
organization of correspondence and reports in the files. Correspondence
and reports are not being consistently filed in chronological order.
This appeared to be a basic problem with all eleven files audited.
Because of the lack of organization it was hard to determine whether
certain correspondence was missing, misfiled, or just not generated.
Therefore, there appeared to be no continuity when follow-up did occur.
Regarding State follow-up of effluent violations reported on the
Discharge Monitoring Reports (DMR's), the State does not appear to
be acting on any effluent violations unless prompted by a Notice of
Violation from EPA.
The files audited also seem to indicate very poor follow-up for
delinquent self-monitoring reports and incorrect sample types. An
example of poor follow-up for delinquent DMR's is Georgetown Valley
where it appears it took the State a year to obtain DMR's from the
facility. No telephone contact appeared to be made regarding delin-
quent reports, only letters were sent. An example of incorrect sample
type is Public Service at Arapahoe. Public Service has been indicating
that pH was being sampled by a composite sample since January of 1977.
No letter in the file was found for correcting this improper procedure.
Specifics are attached regarding problems encountered with Mid
Continental Coal and Coke, Evans Sanitation District, Stanley Aviation,
and Goraetown Valley.
- 81 -
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Mid-Continental Coal and Coke
CO-0000396
For this facility, there were three separate files. According to the labels,
each file was to contain self-monitoring reports and correspondence for the
years specified on the label. However, there was evidence that the self-
monitoring reports (DMR) were not filed in the proper file, e.g., '76
file contained '75 DMR's in addition to the '76 OMR's. DMR's were also
filed loosely on top of all correspondence. The only DMR that appeared
missing was for the second quarter of 1977. It appears that no delinquent
letter was sent for this reporting period. The only violation reported by
the facility was for TSS during the first quarter of 1977. A letter of
violation was sent to City by the State on July 5, 1977. However, the
State's letter was sent due to prompting by EPA with an NOV to the State
on June 20, 1977. The City did reply on July 26, 1977. No record was in
the file regarding whether the reply was adequate. The reply appears
adequate to me.
Evans Sanitation
C0-0020508
The DMR's for this facility from January through September 1977 were filed
in no order whatsoever. There was also no DMR for October of 1977. The
DMR's for 1976 were filed in between April 1977 and February 1977 DMR's.
BODr violations were noted for November 1977, January 1978, and April 1978
DMR s. The September 1977 DMR reflected a violation of the CI2 limit of
.2 mg/1 which was effective July 1, 1977. The February 1978 DMR contained
no BOD, no TSS, and no FC data. The only follow-up correspondence for
effluent violations in the file was a letter dated April 29, 1977, re-
garding CI2 violations in the compliance monitoring sample of March 16,
1977 (Note: the limit of .2 mg/1 for CI2 was not effective until July 1,
1977). No further follow-up correspondence for DMR violations was in the
file.
Stanley Aviation
C0-00001864
The DMR's for this facility, specifically October 1977, November 1977,
and January 1978, were received in the State office anywhere from two
to three months late. I could find no delinquent letters in the file.
The DMR's for 1977 and 1978 were not consistently filed in chrono-
logical order. There were many effluent violations (TSS plus heavy
metals) starting as far back as August 1977. The only enforcement
related correspondence that I could find was a letter dated September
23, 1977, asking whether the Company has hooked up to Aurora or not and
a memo regarding a meeting with the Company on March 21, 1978. The
memo indicated the Company was to submit a compliance schedule within
- 82 -
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-2-
two weeks. The schedule, if approved, was to be adopted as part of a
State NOV. The Company, during the interim was to attempt to keep
levels of contaminants low and address their methods by letter. No
futher enforcement related correspondence (by State or Company) was seen
in the file after this memo.
I asked if they had an enforcement file for this permittee. I was told
by Betty Simmons that there was none. She indicated that if there was
an enforcement file, all copies of correspondence in the enforcement
file should be in the permit file.
Georgetown
C0-0027961
The only DMR's in this permit file were for the last half of 1977 and
the first quarter of 1978. The State sent delinquent letters starting
back in July of 1976. It seems that the State just kept sending delin-
quent letters after delinquent letters with no telephone contact (at
least there was no indication of telephone contacts). Taking a year and
a half to get a major permittee to submit reports appears to be stretching
it a bit. No enforcement related letter appeared in the file other
than the letter dated October 5, 1977, which was generated due to
violations found in State compliance monitoring. EPA issued the State
an NOV for BOD, TSS, and Oil and Grease on November 29, 1977. The
State did not reply to this NOV until March 7, 1978.
- 83 -
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The following is a suranary of the conclusions reached following the file
audit conducted at the Colorado Health Department:
a) In general the files that were audited were not found to be very
efficiently organized. Whatever you may be looking for (e.g., permit,
application, etc.,) you must search the entire file to find it.
b) From what I could determine, the files are to be kept in
chronological order. In most of the files checked this is not followed
consistently. You will find 1978 correspondence with 1973 correspondence.
Also, in four files I found loose material floating in the files.
c) In one case, the Colorado Ute Electric Association, C0-0000523, I
found data pertaining to the Colorado Ute Electric Association, C0-0000043
f i 1 e.
d) In three of the ten files checked I did not find a copy of the
issued permit. In one other file, the permit was found with correspondence
filed between the permit pages (Upper Thompson Sanitation District).
e) In all cases, the certified receipt cards acknowledging receipt of
the issued permits were not found near the permit. In two cases the certified
card was not found at all. The Evans Sanitation District had a specific
problem in that the certified receipt card was never returned to the Colorado
Health Department. Follow-up by this Agency (phone memo) confirmed the permit
had indeed been received. There was nothing in the Colorado Health Department
file to confirm receipt of the permit. How does the Health Department know
if the permit was ever received and also when the permit becomes effective?
f) The Mid-Continent Coal & Coke Company had an amendment issued on
December 15, 1977. It consisted of changing pages one, three and five of
the permit. These changes were incorporated in EPA's file but not in the
Colorado Health Department file. There is a copy of the transmittal letter
but not of the amended pages. How does the Colorado Health Department keep
track of amendments? From what I could tell, they can't.
g) While looking through the compliance schedule section, I noticed
that the approved schedule is not stamped so there is no quick way of
establishing if the compliance schedule was approved unless you read the
entire correspondence section.
-------
h) It was brought up that two (2) separate files exist for each
permitted facility. One is considered the correspondence file and
contains a copy of the permit, application, and Summary of Rationale,
as well as all the correspondence that has been received for each
facility. The other file 1s considered the permit file and contains
the original permit, application and Summary of Rationale and can
be found 1n Arden Wallum's office. When asked the purpose of dual
files, the reason was given that too many original permits had been lost
so this was used as a safeguard. If people from outside the Health
Department request to see the files, they are shown the correspondence
files.
i) The question was asked as to why the Department had such flimsy
file folders and why they were set up where you had to go through the
entire file to find anything specific. The answer given was that the hard
cover files like those used by EPA were too expensive to obtain.
- 85 -
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Reviewed Colorado's NPDES files to determine the effectiveness of the
compliance-assurance activity. The following files were scanned for
violations and follow-up:
1) City of Longmont - C0-0026671
2) South Lakewood Sanitation District - CO-0020028
3) Greeley Sand & Gravel - C0-0001376
4) A.T. & S.F. Railroad - C0-0000558
5) Cortez - C0-0027880
As in any random population sampling, observation made may not truly
be indicative of the functionality of the program. However, several
points continually were evidenced:
1) Files are not well organized.
a) Permits are commingled with correspondence.
b) Correspondence is not uniformly chronologically arranged.
c) State's monitoring results are not separated from correspondence
package.
d) Identical letters exist in file.
e) No identification on DMR sheets to correlate follow-up
activity.
2) Discharge Monitoring Reports.
a) Reports are not scrutinized for reporting format errors.
b) Reports are not uniformly dated when received.
c) No explanation or indication of follow-up exists in files
where DMR's are missing.
3) Follow-up.
a) When a response to a form letter is received, State generally
makes no further efforts to resolve a controversy generated
by the permittee response, e.g., South Lakewood Sanitation
District's 12/28/77 letter indicating subsequent sample
showed no violation; Longmont's 12/22/77 letter indicating
- 86 -
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violations will continue for approximately one year (no
other action by State in response). Cortez letter of
9/28/77 not responding to questions asked in State's 8/3/77
letter.
b) State allows several reporting periods of violation before
commencing enforcement inquiries, and often not before an
EPA NOV is issued.
c) No inter-section (Permits-Grants) communications are evident
in file to explain some of the rationale for allowing by-
passes. e.g., Longmont indicated several periods of bypass
would be required during a construction phase, this was
neither verified, conditioned through permit authorization,
followed-up, etc. A State enforcement sample showing
ten times the effluent limit was never reacted to because
it was "assumed" they were bypassing.
A few conclusions that might be drawn from this brief file review
are:
1) Technical involvement in follow-up does not appear to be of
a very high caliber at any point. Follow-up of violations appears
to be of relatively low priority.
2) DMR review practices need to be refined and a response matrix
developed as it is apparent that the review of DMR's varies
in frequency and thoroughness as well as the follow-up being
quite arbitrarily determined.
3) No chain of true responsibility can be identified in the State's
communications as District Engineers, Permits Engineers, Compliance
Technicians, Surveillance Engineers, and the Permits Chief
all send letters under their own signatures for overlapping
areas of responsibility to common recipients.
- 87 -
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Feedback 1s one of the basic principles of a good management system
and without such feedback, morale will surely be depressed. Section and
Divisional staff meetings are a formal feedback system. Fred Matter's
first section meeting was September 28, 1978, and his Intent is to have
such meetings every three to six months. Division meetings are held semi-
annually. Normally all directives to staff are from I.O.C. (internal
office correspondence). Virtually no opportunities exist to sit down and
discuss directives as a group or for staffers to uniformly discuss policy
positions.
There is no office policy on who must sign certain types of letters
although Fred Matter initials all correspondence. As a result, significant
letters have been signed by Staff engineers.
There was evidence of reluctance 1n using the District Engineers as
a compliance information source. Based upon actual participation, the
District Engineers have a non-regulatory orientation. They have volunteered
very little compliance information and have attended few enforcement meetings
to which they were invited. Further, District Engineers have contributed
nothing to the drafting of permits.
One staff member's last State sponsored training was prior to 1965.
If this is indicative of the professional development opportunities
provided through the State, it is no wonder that the NPDES Enforcement "
Program Itself has been stagnant. Occasionally, supervisory personnel will
be allowed to take advantage of regional training opportunities, but
certainly the Division does not appear to be pushing professional develop-
ment.
Some staff also expressed concern about the crowded working conditions.
Personnel cannot do a very effective job if everyone 1s crowded together.
Staff members expressed concern regarding the lack of orientation
personnel receive in the Water Quality Control Division. New personnel
are expected to pick up where the departing people have left off with
no direction or written procedures- to follow.
The Water Quality Control Division has not had a full complement of
clerical help since December 1977 which has resulted in the permits back-up.
Since all clerical help must be obtained through the clerical supervisor,
there can be day-to-day changes in priorities that result in backlogs of
work.
A staff member is assigned as a part-time file clerk. Since he also
types and assists with DMRs, the files are still a mess. There is no
back-up system utilized 1f the file clerk is gone for an extended period
of time.
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