Pro WCt ion
. DC 20460
National Municipal
Policy and Strategy
For Construction Grants,
NPDES Permits, and
Enforcement Under
the Clean Water Act
October 1979
-------
NOTES
To order this publication, National Municipal Policy and Strategy (UNA-13.0)
from EPA, write to:
General Services Administration (8FFS)
Centralized Mailing List Services
Bldg. 41, Denver Federal Center
Denver, CO 80225
Please indicate the ordering number and title of publication.
-------
NATIONAL MUNICIPAL POLICY AND STRATEGY
For Construction Grants, NPDES Permits, and
Enforcement Under the Clean Water Act
U.S. Environmental Protection Agency
Office of Water Enforcement
Office of Water Program Operations
October 1979
-------
PREFACE
A majority of municipal dischargers, for a variety of reasons, have not
complied with the Clean Water Act's July 1, 1977 treatment requirements. These
discharges contribute a substantial pollutant load into the waters of the
United States.
This National Municipal Policy and Strategy, published after months of
comment and discussion, will serve to guide Regions and States in a productive
period of activity aimed at achieving the Clean Water Act's goals of fishable
and swimmable waters, in part through full municipal compliance.
To give effect to this National Municipal Policy and Strategy, I have
directed the Deputy Assistant Administrators for Water Enforcement and Water
Program Operations to produce a Municipal Management System. I have further
directed the Deputy Regional Administrators to work directly with the Program
Offices to implement the management system.
Douglas MJ Costle
Administrator
-i-
-------
OUTLINE
Page
I Introduction 1
II Legislative Background 3
III Status and Scope of Municipal Noncompliance 5
o Description of Noncompliance Problem
o Remedies to the Noncompliance Problem
IV Municipal Noncompliance Classification Process 8
o Purpose
o 301(i)(l) Initial Test
o POTWs With Active Grants
o POTWs Without Active Grants
o POTWs Which Have Completed Construction
V Issuance of 301(i)(l) Extensions 16
o The Relationship of Section 301(h) to
Section 301{i)(l)
VI Issuance of 309(a)(5){A) Administrative Orders 22
VII Priorities for Issuance of Extensions and
Administrative Orders 27
o Pretreatment Priorities
o Funding Availability and Schedule Development
VIII Treatment More Stringent Than Secondary 33
IX Municipal Referral Priority System 37
o Purpose
o Scope
o Effect of 301(i)(l) Request on Initiated
Referrals
o Procedure
o Special Enforcement: Public Health and Fragile
Ecosystems
o Special Enforcement: Category IV
o Implementation
X Formulating a Municipal Management System 42
-111-
-------
PART I: INTRODUCTION
An analysis of compliance indicates that the majority of publicly-owned
treatment works (POTWs) have not completed construction necessary to meet the
1977 treatment requirements. Many of these POTWs are eligible for relief fron
enforcement under the Clean Water Act (P.L. 95-217) by the provision in section
301(i)(l) that provides for extensions of the time for compliance until no
later than July 1, 1983. In response to this and other provisions applicable
to municipalities, EPA has developed a National Municipal Policy and Strategy
for more effectively managing municipal compliance with the Clean Water Act.
The goal is to integrate permits, enforcement, and construction grant
activities by:
issuing, to qualified POTWs, extensions with enforceable
compliance schedules based on grant funding, in the form of
permits and administrative orders;
coordinating with States to develop State Project Priority Lists
which assure that grant funding is allocated to projects
necessary to meet the enforceable requirements of the Act before
funding is allocated to other projects, to the extent authorized
by law; and
laying the foundation to permanently coordinate grant, permits,
and enforcement operating practices with the aim of stream!ining
compliance by municipalities while simultaneously removing
impediments to enforcement actions, if needed.
The National Municipal Policy and Strategy under the Clean Water Act
contains: (1) a process for determining whether a permittee will be eligible
for a permit extension, be issued an administrative order, or be subject to
referral for judicial action; (2) a brief description of how Construction
-1-
-------
Grant and Permit staffs will coordinate in the issuance of National Pollutant
Discharge Elimination System (NPDES) permits containing actual dates based on
grant schedules as compliance milestones; (3) a brief description of how
Construction Grants and Enforcement staffs will coordinate to produce
administrative orders containing grant-based compliance schedules; and (4) a
brief description of the relationship of permit and enforcement actions to
State Project Priority Lists (PPLs) and the Clean Water Act's enforceable
requi rements.
-2-
-------
PART II: LEGISLATIVE BACKGROUND
Section 301(i)(l) provides relief to POTWs which did not have adequate
Federal funding in time to meet the 1977 treatment requirements. This section
authorizes permit issuing authorities to grant timely requests for extensions
of the July 1, 1977 treatment deadline, "where construction is required . . .
to achieve limitations . . . but . . . (B) the United States has failed to make
financial assistance under this Act available in time" (emphasis added). Any
permit issued or modified under section 301(i)(l) must contain, among other
terms and conditions, "a schedule of compliance . . . based on the earliest
date by which such financial assistance will be available . . . and
construction can be completed, but in no event later than July 1, 1983"
(emphasis added).
Section 216 authorizes the Administrator to remove a project from a
State's priority list, "if the Administrator, after a public hearing,
determines that a specific project will not result in compliance with the
enforceable requirements of this Act" (emphasis added). The enforceable
requirements of the Act include the conditions of an NPDES permit, or where
no permit applies, any condition which the Regional Administrator determines
necessary to meet applicable criteria for best practicable wastewater treatment
technology (see 40 CFR 35.905).
Since they also affect compliance with the Clean Water Act, several other
sections have a direct effect on POTWs and the National Municipal Policy and
Strategy. Sections 307(b) and (c) and 402(b)(8), as implemented by 40 CFR 403,
-3-
-------
require certain POTWs to have a pretreatment program in place and approved by
no later than July 1, 1983. Section 301(h) authorizes applications for
modification of the secondary treatment requirements for certain POTWs
discharging into marine and estuarine waters (see 40 CFR 125, Subpart G) --
many POTWs have requested both 301(i)(l) permit extensions and 301(h) permit
modifications.
-4-
-------
PART III: STATUS AND SCOPE OF MUNICIPAL NONCOMPLIANCE
Description of the Noncompliance Problem
POTW compliance with the July 1, 1977 treatment deadline has been
classified as follows:
CATEGORY
CATEGORY III
CATEGORY I POTWs that need construction to comply; did not significantly
contribute to the delay in construction; construction grant
funding is or will be available to assist in complying; and can
complete construction by the 1983 deadline.
POTWs that need construction to comply; did not significantly
contribute to the delay in construction; construction grant
funding through Step 3 is available to assist in complying; but
cannot complete construction by the 1983 deadline.
POTWs that need construction to comply; did not significantly
contribute to the delay in construction; for which construction
grant funding through Step 3 does not appear to be available by
July 1, 1983, and consequently, may not complete construction by
the 1983 deadline.
POTWs that need construction to comply and are causing signif-
icant public health or pollution problems, but due to lack of
position on project priority lists, may require judicial action
to assure prompt achievement of NPDES permit requirements.
CATEGORY V POTWs that have completed construction and are not meeting
effluent limitations or other NPDES requirements.
CATEGORY VI POTWs that need construction to comply and did significantly
contribute to the delay in construction.
CATEGORY IV
Remedies to the Noncompliance Problem
Major municipal compliance with the treatment requirements of the Clean
Water Act along with the Major Source Enforcement Effort (MSEE) for industrial
dischargers are the primary water enforcement priorities. Now that the number
of major industrial sources out of compliance has been reduced, enforcement
actions aimed at significant POTWs which have not installed secondary or more
-5-
-------
stringent treatment will be stepped up in accordance with procedures discussed
in this National Municipal Policy and Strategy.
Initially, placing POTWs on enforceable compliance schedules is essential
to an effective municipal compliance effort. The methods of accomplishing this
are:
(1) Section 301(i)(l) extensions to qualified POTWs, as discussed in
Part V;
(2) Section 309(a)(5)(A) administrative orders or comparable State
mechanisms, as discussed in Part VI, to certain POTWs unable to
comply by July 1, 1983; and
(3) Referral for judicial action in appropriate cases, as discussed
in Part IX.
A process for determining which compliance response is appropriate is
described in Part IV. Procedures and priorities for administering each
response are described in Parts V-IX.
Table A illustrates the six categories of municipal noncompliance and the
appropriate Regional or NPDES State compliance responses.
-6-
-------
TABLE A
CATEGORIES OF AND RESPONSES TO MUNICIPAL NONCOMPLIANCEV
CATEGORY
Category I
Category II
and
Category III
Category IV
Category V
Category VI
EXTENSION REQUESTED
NO ECSL?/
•301 Him EXTENSION NOT REQUESTED-
NONCOMPLIANCE
WITH ECSL
Grant 301(i) request;
issue permit with compl.
schedule assuring com-
pletion of construction
by 1983. Revoke ECSL.
Deny 301(i) request;
Issue permit, or con-
tinue permit where ESCL
exists, requiring
immediate compl. with
secondary or more
stringent treatment;
Issue 309(a}(5)(A)
Administrative Order(s)
with compl. schedule
not extending beyond
1983.
Deny 301(i} request;
referral for judicial
action.
Deny 301(i) request;
Issue 309(a)(5)(A)
Administrative Order(s)
or referral for judicial
action.
Deny 301(i) request;
referral for judicial
action.
Issue permit requiring
immediate compliance
and 309(a)(5)(A) Admin-
istrative Order(s) 3/
with compl. schedule
assuring completion of
construction by 1983.
Issue permit requiring
immediate compl. with
secondary or more strin-
gent treatment; Issue
309(a)(5)(A) Admin-
istrative Order(s) not
extending beyond 1983.
Referral
action.
for judicial
Issue 309(a)(5)(A)
Administrative Order(s)
or referral for judicial
action.
Referral
action.
for judicial
COMPLIANCE
WITH ECSL
Revoke ECSL; Continue
permit and issue
309(a)(5)(A) Admin-
istrative Order(s) with
compl. schedule assur-
ing completion of
construction by 1983.
Revoke ECSL; Continue
permit requiring
immediate compl. with
secondary or more
stringent treatment;
Issue 309(a)(5)(A)
Administrative Order(s)
not extending beyond
1983.
Monitor
compliance
with ECSL
Not Applicable^'
Referral
action.
for judicial
Issue 309(a)(5)(A)
Administrative Order(s)
or referral for judicial
action.
Referral for judicial
action.
Not Applicable.
Not Applicable.
Not Applicable.
V Requests for 301 (h) not Tncluded. (Note: 301 (h) requests should be processed before 30TOT requests").
2/ ECSL means Enforcement Compliance Schedule Letter or a comparable State procedural mechanism.
3/ A 309(a)(5)(A) Administrative Order or a comparable State procedural mechanism.
4/ ECSL policy prohibited the issuance of ECSLs beyond the life of a NPDES permit (e.g., beyond July 1, 1983).
-7-
-------
PART IV: MUNICIPAL NONCOMPLIANCE CLASSIFICATION PROCESS
Purpose
The process outlined in this part provides a systematic method to
determine whether a POTW should receive a section 301(i)(l) penr.it extension,
be issued a section 309(a)(5)(A) administrative order, or be subject to
referral for judicial action. *
The flow diagram (Figure A) divides POTWs into two groups -- those with and
those without active grants. POTWs with active grants which have not
significantly contributed to a delay in funding or completion of construction
will either be granted 301(i)(l) extensions or issued administrative orders in
lieu of a 301(i)(l) permit extension, depending on whether the POTW submitted a
timely request for an extension and can complete construction by July 1, 1983.
POTWs which have significantly contributed to a delay in funding or subsequent
construction will be candidates for referral for judicial action, or
administrative orders. POTWs without active grants, particularly POTWs in
Category III, should be moved into the grant process wherever possible.
301(i)(1) Initial Test
The 301(i)(l) regulations (40 CFR 125.93) state that no extension can be
* Part IX contains a discussion of when States with administrative penalty
procedures should use administrative penalties first rather than referral for
judicial action.
-8-
-------
FIliURE A
PROCESS FOR CLASSIFYING STATUS OF NONCOMPl YINU POTWi
NONCOMPLYING
POTWi
ON SCHEDULE
OFF SCHEDULE
CG/PERMITS REVIEW
CAUSE OF SCHEDULE
DELAY
POTENTIALLY
EXCUSABLE
CONTRIBUTION TO
DELAY BYPOTW
INSIGNIFICANT OR
NO CONTRIBUTION
TO DELAY BY POTW
ENFORCEMENT
ACTION SHORT
OF REFERRAL
TO COURT
COMPLIES WITH ACTION
FUND FROM
RESERVE OR
REVISE PRIORITY
RANKING
DOES NOT COMPLY
WITH ACTION
NU1 ON FUNOABIE
PORTION OF PROJECT
PRIORITY LIST
CAUSING SIGNIFICANT
WATER QUALITY AND/OR
PUBLIC HEALTH PROBLEMS
NO
YES
REQUEST STATE
TO HEEXAMINE
PRIORITY RANKING
YES
NO
CATEGORY 1
GRANT 301 (.1(1
EXTENSION
CATEGORY II
309UK5HAI
ORDERS
FUNDING NOT
MADE AVAILABLE
DOES NOT COMPLY
WITH ACTION
CATEGORY IV
REFERRAL
TO COURT
-------
granted unless a POTW requires construction to meet treatment requirements, and
either:
(a) The issuance of a notice to proceed under a construction
contract for any segnent of Step 3 project work (or if notice to proceed is not
required, the execution of the construction contract) occurred before July 1,
1977, but construction could not physically be completed by July 1, 1977
despite all expeditious efforts by the POTW (see initiation of construction
as defined in 40 CFR 35.905 for Step 3); or
(b) Federal financial assistance either was not available, or was
not available in tine for construction required to achieve NPDES permit
lin-itations, and the POTW did not in any significant way contribute to this
unavailability or delay.
Section 301(i)(l) does not authorize the granting of any extensions where
construction cannot be completed by July 1, 1983. For this reason, the section
301(i)(l) regulations (40 CFR 125.93) require States to certify that funding
will be available in time to ensure compliance by July 1, 1983. It is
anticipated that award dates for Step 3 grants can be projected with reasonable
accuracy based on the new construction grant requirement for five-year Project
Priority Lists beginning in FY 1980.
POTWs with Active Grants
POTWs which are either on their grant schedule or had begun a continuous
program of physical construction of the facility before July 1, 1977 (i.e., into
-10-
-------
Step 3) can complete construction by July 1, 1983, and which meet the criteria
of section 301(i)(l) as outlined in 40 CFR 125.93 should be granted 301(i)(l)
extensions.
Generally, there are two major ways in which POTWs may be off grant
schedules -- (1) preconstruction lag (POTWs that have been awarded grants Dut
have not begun work, primarily at the Step 3 stage), or (2) POTWs that have
begun work but have encountered delays. Only off-schedule POTWs that can be
considered not to have caused funding or construction delays are immediately
eligible for 301(i)(l) extensions (e.g., preconstruction lag occurred because
State law prohibited the raising of matching local funds prior to the award of
Federal funds).
Where delays exist, the Region or NPDES States should review the cause and
nature of delay to determine whether compliance would better be assured by
referral for judicial action, or issuance of a 301(i)(l) extension or a
309(a)(5)(A) administrative order. In determining that a judicial action
should be taken against a POTW for failing to meet the July 1, 1977 deadline,
the Agency has necessarily determined that the failure of the POTW to meet that
deadline is attributable in significant measure to the POTW's own action or
inaction rather than the unavailability of Federal funds. Since this
determination is dispositive of 301(i)(l) requests, such requests should be
denied for any POTW against which a judicial action for failure to construct
necessary treatment works by July 1, 1977 has been filed or referred. However,
where no referral for judicial action is either pending or planned, and if the
cause and nature of any funding or construction delay is less serious, the
Region or NPDES State should exercise its prosecutorial discretion through an
administrative form of enforcement action prior to the 301(i)(l) determination
-11-
-------
to give the POTW an opportunity to demonstrate its intention and ability to
meet the new deadline.
By using enforcement actions short of referral first, the Region or NPDES
State carries out enforcement actions in conjunction with an offer of Federal
financial assistance. If a POTW fails to comply with such enforcement actions,
the subsequent case for referral for judicial action will be strengthened
because Agency program actions appear consistent to the court.
If a POTW complies with interim enforcement actions (confirming that it is
taking all reasonable steps to comply with the Clean Water Act) and can meet
the 1983 deadline, referral for judicial action is not necessary, and a
301(i)(l) extension may be granted. If the POTW did not request an extension
and does not hold an tCSL or cannot meet the 1983 deadline, an administrative
order may be issued. This approach does not mean that administrative orders
are to be the enforcement mechanism of first choice in all cases. Where the
POTW has a history of delay despite efforts by the Agency to urge the POTW to
proceed, referral for judicial action should be considered the enforcement
mechanism of first choice.
POTWs Without Active Grants
The right side of the flow chart (Figure A) addresses the three types of
POTWs without an active grant: (1) those on the fundable portion of a State
Project Priority List (PPL), (2) those not on the fundable portion of a PPL,
and (3) those which completed final construction but are not meeting required
effluent limitations. Some POTWs on the fundable portion of a PPL may not have
applied for a grant. For those POTWs that fail to apply for a construction
-12-
-------
grant in a timely manner, appropriate enforcement actions should be taken,
informing such POTWs that funds are available and '•.ha1' they have either "X"
days *o apply for a nrant or their 301 (iVl) reouest will be denied. !f the
-n-"/ cornlies and enters into an active nrant posture, a de^.prrinat 'on *T) issue
a 3(")l'i)'l) rentes* or administrative order can be made has^d on *-.he ^"'l^'tv of
*he DnTW to corplete construction by July 1, PP3.
In + he case of r>nTWs not on the ^undable portion of the nnL , an
should be nade to elevate significant pnTWs selected by the Person and NPP[S
State into the ^undahle portion of the PPL (i.e., rove pf~lTWs frot" Category III
to II). !n all cases, Fnforcement will analyze the nature of the violation and
deternine if a revision to the PDTW's project ranging appears to he justified.
lf t for example, the action was for an effluent violation resulting in serious
strear degradation (e.g., precluding or restricting beneficial uses, or
creating public health hazards), the Pegional Administrator should contact the
State to request that the POTW's project be considered for placement in the
^undable range of the PPL.
If projects which do not meet the enforceable requirements of the Clean
Water Act are proposed for funding, the Regional Administrator should ask the
State to revise its PpL to rank the noncomplying "OTW higher -- above the fun-
ding line, if possible (see 40 CFR 35.915). For example, should the fundable
portion of the State PPL include pipe- related projects beyond the State's
allowance o^ 25 percent not required to meet the enforceable requirements of
the Clean Water Act, the Regional Administrator may ask the State to revise its
Project priority List to substitute a nonconplying POTW for one or more of the
-13-
-------
pipe projects. All such requests should be made through and approved by the
Regional prograir, office responsible for PPL management.
Tne process of reevaluation of project priority does not increase the
total tunas available to the State for water pollution abatement. Thus, given
a fixeu dn-.Gi.nt. of dollars allocated, increasing the priority of one project
will decrease that of another. For states that have developed priority systems
and lists in accordance with the September 21, 197& construction grant
regulations (see 40 CFk 35.915) and program guidance, it is expected tnat
requests for reevaluation will be few and limited to those cases where it
appears new information exists regarding the particular project in question
that was not considered in establishing the project's priority.
When requests are made, the State will be asked to: (1) reevaluate the
original priority rating, or (2) consider funding from the Step 1 and Step 2
grant reserve. If the State increases the priority rating or agrees to fund
from the reserve, then Enforcement, if necessary, will issue a letter or
administrative order soliciting an application, and the process would follow
the pattern outlined in the section on Active Grants (see pages 10-12). Should
the State deny increased priority, the POTW should be considered to have no
Federal funding available by July 1, 1963, and hence may not meet the 1983
construction deadline necessary for granting of a 301(i)(l) extension. Since
the POTW presents a significant pollution problem, serious consideration must
then DC given to bringing a judicial action under section 309 of the Clean
Water Act.
Determining the appropriate compliance response (301(i}(1) permit
extension, administrative order, or referral) is clearly dependent on grant
-14-
-------
funding. Since a delay may be experienced in the development of more complex
PPLs, the processing of some 301(i)(l) requests may be deferred until fiscal
year 1980, and in the case of some minors, beyond fiscal year 1980.
POTWs Which Have Completed Construction
POTWs that have completed construction and are not meeting their NPDtS
permit limitations are not eligible for 301(i){l) extensions and are candidates
for various enforcement remedies.
Section 203(e) of the Clean Water Act authorizes the Administrator, at
the grantee's request, to provide technical and legal assistance in the
administration and enforcement of contracts necessary to construct treatment
works. The extent of this assistance will depend upon available resources.
The construction grant regulations (40 CFR 35.970) indicate the request must
generally be made in writing, and States may also provide such assistance. The
grantee is responsible for enforcing all contracts necessary to build the POTW
independently of EPA.
-15-
-------
PART V: ISSUANCt OF 301(i)(l) EXTENSIONS
Issuing or modifying NPUES permits to incorporate 301(i)(l) extensions is
direct"y relateo to the construction grant process, and close coordination and
snarui.; or i-.Tor-nation between the two program offices is required. Similarly,
av-arjiny or amencing grants to POTWs that are issued 301(i)(l) extensions must
also be coordinated so that fixed permit compliance milestones ensure that
major construction grant dates are enforceable and consistent with grant
agreements. Since the great bulk of program coordination will occur through
the 3Gl(i)(l) mechanism, the following chart (Figure B) illustrates how the
Permits and Construction Grants staff must work together to formulate 301(i)(l)
permit terms and conditions and award construction grants to POTWs with
301(i)(l) extensions. The same coordination must take place in formulating
compliance schedules in administrative orders (see Part VI).
As shown, a suggested sequence of activities beginning in fiscal year
1979 for implementing the 301(i)(l) process at the Regional and State level
would be as follows:
(1) Permits staff will provide the list of 301(i)(l) applicants to
the Grants staff.
(2) Grants staff will determine which of the applicants are on the
fundable portion of the PPL and supply the grants schedule to
Permits staff.
(3) Permits and Enforcement staff will simultaneously prepare
additional permit and compliance information in accordance with
the suggested processing priorities in Part VII.
(4) Permits staff will determine which of the 301(i)(l) applicants
have active grants through use of the Grants Information Control
System (GIGS) and will extract necessary project information
from GIGS. If the information is not available from GIGS, then
Grants will furnish all necessary information to Permits.
-16-
-------
FIGURE B
APPROACH TO PERMIT ISSUANCE FOR APPROVED 301 nidi EXTENSIONS
APPROVED 301 ullll
CANDIDATES
IN ACCORDANCE WITH
PRIORITY ISSUANCE
RANKING
COMPLETE AWT REVIEW [IF APPLICABLE)
TO ENSURE CORRECT EFFLUENT
LIMITATIONS AND TO PROJECT GRANT
FUNDING
PRELIMINARY DETERMINATION
BY GRANTS PERMITS ON PERMIT
TERMS AND COMPLIANCE
SCHEDULES
(OPTION)I
GRANTS AND PERMITS MEETING j
WITH MUNICIPALITY OR DISTRICT '
(PRE PERMIT PUBLIC NOTICE OR |
PRE GRANT APPLICATION STAGE) ,
GRANTS STAFF DERIVES SCHEDULES
FROM GRANTS INFORMATION
(PROJECT LIST OR EXISTING
GRANT AGREEMENT!
(OPTION)
(PROPOSED DISCHARGE!
I
GRANTS FINALIZES
GRANT AGREEMENT
PERMITS PREPARES
DRAFT PERMIT
PERMITS PUBLIC
NOTICES
DRAFT PERMIT
(IF
.NEEDED)
CHANGE IN PERMIT BASED ON
COMMENTS. AMEND GRANT IF
NECESSARY
PERMIT ISSUES FINAL PERMIT
REFERENCING GRANT. GRANTS
AWARDSGRANT, REFERENCING
PERMIT
I
ENTER COMPLIANCE SCHEDULE
INTO MONITORING SYSTEM IN
ACCORDANCE WITH REGIONAL/STATE
MUNICIPAL MANAGEMENT SYSTEM
-17-
-------
The remaining 3Gl(i)(l) applicants not covered by the Permit Compliance
System ;PCb) or uICS would be the unfunded projects. Processing of 301(1)(1)
requests from ^nfunded POTWs should be delayed until the State Project
Priority List has oeen properly adjusted in fiscal year 1980.
A final list of eligible extension candidates should be developed by the
Permits staff and sent to the Water Division, where effluent limitations are
established Dased upon water quality standards, the Water Quality Management
staff generally will provide the effluent limitations; the Permits staff is not
expected to aevelop water quality-related effluent limitations. When a project
is either undergoing review for treatment more stringent than secondary or is
awaiting such review pursuant to Office of Water Program Operations, Program
Requirements Memorandum (PRM 79-7), an NPLiES permit should not be issued prior
to completion of that review (.see Part VIII). The Permits staff will review
these effluent limitations for legal and procedural (not technical) adequacy to
assure that they are supportable and enforceable. If the Permits staff is not
satisfied that the limits are supportable and enforceable, Permits should inform
Grants and Water Quality Management of the nature of their concerns and attempt
to reach mutual agreement on effluent limitations. Once the limits are
acceptable, construction schedules will be developed by either Grants or
Permits staff based on the project list and/or schedule in existing grant
agreements and concurred on by both programs.
-18-
-------
Once the schedule and effluent limitations information is available,
the Permits staff will develop a draft permit based on information received
from the Construction Grants and Water Quality Management staffs, and the
Grants staff will develop a proposed grant award agreement.
The draft and final permit must include a compliance schedule which
contains actual milestones derived from the grants process. The PCS and GICS
systems have been reviewed, and the necessary and discretionary grant events
that will make up the milestone dates will be listed in the Compliance and
Grants Interaction Systems Workgroup Report (see Part X). At a minimum, the
compliance scheaule should contain dates for submission of the grant
application to the State, project completion dates, the date for completion of
construction, pretreatment milestones (see the Rhett-Miller memorandum on
pretreatment program coordination dated November 28, 1978), and the date for
achievement of final effluent limitations. *
Whenever possible, representatives knowledgable of both Permits and
Construction Grants programs should be at meetings with the grantee/permittee
to discuss the information placed in the draft NPDES permit and grant
conditions. A pre-public notice, conference, and/or grant preapplication
conference may also resolve certain permit problems before the permit is issued
and thus reduce the number of evidentiary hearing requests.
* For a discussion of interim compliance date slippage, see 40 CFR
122.31(f)(3).
-19-
-------
If no pre-public notice conference is held, the permittee should be made aware
of the proposed schedule and allowed to comment on the schedule before public
notice of the permit is given.
After me permittee has made any comments on the draft permit, the Permits
staff will puDlish notice of tne draft permit and make any chanyes resulting
from trie public notice. Permits and Construction Grants staffs should then
jointly determine if such chanyes to the draft permit may affect the existing
or proposed construction grant award. If so, the grant should be adjusted
accordingly. The Permits staff would then issue the permit in final form.
depending on the circumstances, the final permit may be issued either before or
after the award of the construction grant. Where the grant award satisfies
permit requirements, Grants staff should reference the NPDES permit number in
tne grant, and Permits staff should reference the construction grant award
identification number in the permit. It is not necessary to defer grant award
until the permit is issued, unless significant permit issues directly affect
the type of project for whicn the award is intended. However, if an
evidentiary neariny is requested and granted on construction grant-related
issues, both programs must again coordinate to share information necessary to
resolve the evidentiary hearing (e.g., how schedules were developed, etc.). No
grants to PuiWs should be awarded that relate to the permit issue in question
while relevant portions of the permit are stayed by the evidentiary hearing.
Once the eviaentary hearing is resolved, Permits should issue a final permit
and Construction Grants should make necessary amendments to the grant award.
-20-
-------
The Relationship of Section 301(h) to Section 301(i)(l)
In the Regions and NPDES States which have POTWs discharging into iiarine
or estuarine waters, almost all POTWs which submitted preliminary applications
for section 301(h) permit modifications also requested 301(i)(l) permit
extensions. Where the POTWs submit final applications for 301 (h) permit;
modifications, the 301(h) application should be processed first. * If the
301(h) is granted, it will be the basis for the new compliance schedule and the
301(i)(l) request becomes moot. If the 301(h) is denied, the 301(i)(l) request
should then be considered in the same manner as other 301(i)(l) requests.
Specifically, if the POTW can complete construction by July 1, 1983, the
request should be granted; if the POTW cannot complete construction by July 1,
1983, the request should be denied and a 3Q9(a)(5)(A) order may be issued not
extending beyond July 1, 1983.
In some cases, the delay pending the 301(h) determination will force a
POTW in Category I into Category II, and a 309(a)(5)(A) order must be issued
rather than a 301(i)(l) extension. In order to minimize this occurance, POTWs
should be advised to proceed with construction until they reach the critical
point at which further construction will depend on EPA's decision concerning
the 301(h) application.
* See 40 CFR 125 Subpart G, "Modification of Secondary Treatment Requirements
for Discharges into Marine Waters."
-21-
-------
PART VI: ISSUANCE OF 309(a)(5)(A) ADMINISTRATIVE ORDERS
where construction cannot be completed by July 1, 1983, a 309(a)(5)(A)
order Must be issued. The objective of issuing section 309(a)(5)(A;
administrative orders in lieu of 301(i)(l) extensions is to establish an
enforceable schedule for compliance based on progress which can be made up to
19b3 -- even tnough the schedule does not require completion of construction.
The following flow chart (Figure C) illustrates an approach to issuance of
section 309(a)(5)(A) administrative orders (or comparable State procedural
mechanisms) when used as a means to obtain an enforceable compliance schedule.
Section 309(a)(5)(A) administrative orders in lieu of 301(i)(l) extensions
must always be issued (and notice given to the public} in conjunction with an
underlying permit which requires compliance with the July 1, 1977 treatment
requirements, except as described in Part VIII for treatment more stringent
than secondary. Where section 309(a)(5)(A) administrative orders in lieu of
301(i)(l) extensions are appropriate, compliance schedules in the
administrative order will be determined by the identified dates on which
funding either is available in an existing grant agreement or wi11 be available
in projected grant funding derived from the approved Project Priority List.
The coordination between Enforcement and Grant programs in the issuance of
these orders should be the same as that discussed in Part V.
The contents of these 309(a)(5)(A) administrative orders will differ
slightly depending on whether the administrative order is for a POTW in
Category I, II, or III. Each administrative order is to contain a compliance
schedule which reflects milestone dates derived from the grant process. Since
-22-
-------
FIGURE C
APPROACH TO THE ISSUANCE OF§309 (a)(5)(A)
ADMINISTRATIVE ORDERS
POTW INELIGIBLE FOR A§301 d)
EXTENSION BECAUSE IT CANNOT
COMPLY BY 1983 OR IT FAiLED TO
APPLY IN TIME FOR AN EXTENSION
GRANTS/ENFORCEMENT
EXAMINES PROJECT PRIORITY
LIST FOR FUNDING STATUS
IDENTIFY PROJECTS
UNDERGOING AWT REVIEW
AND COMPLETE REVIEW
GRANTS/ENFORCEMENT
FORMULATES
COMPLIANCE SCHEDULE
POTW APPLIES FOR
GRANT ASSISTANCE.
IF NECESSARY
ENFORCEMENT DRAFTS
ADMINISTRATIVE ORDER
GRANTS FINALIZES GRANT SCHEDULES
ENFORCEMENT FINALIZES AND
ISSUES ADMINISTRATIVE ORDER
ALONG WITH NPDES PERMIT
GRANTS AWARDS GRANT
(REFERENCING
ADMINISTRATIVE ORDER)
T
COMPLIANCE SCHEDULE ENTERED
INTO TRACKING SYSTEM (IN
ACCORDANCE WITH THE
MUNICIPAL MANAGEMENT SYSTEM)
23-
-------
construction grants are awarded in steps, and the funding may not be continuous
\except for combined Step 2+3 grants;, issuance of succeeding administrative
orders r.ay often oe necessary. In no event should an administrative oroer
contain a compliance schedule extending beyond July 1, 1983, the final date for
•r.unicipal compliance established by Congress in section 301 •'}(!}. Thus, the
last compliance cate in the adniinistrative order will be the last identified
cate in tne PuTW's grant schedule prior to July 1, 1983, even if that date only
takes the PuTw through part of the construction grant process and toward final
1 innts.
PuT'wS in uategory I which have not requested 301(i)(l) extensions and
which do not hold tCSLs may be issued administrative orders. It should be
noted that only one administrative order need be issued for each POTW in
Category I in this case. This administrative order will move the permittee
through the entire grant process toward completion of construction by July 1,
lyt>3 (see Part V).
POTWs in Categories II and III cannot receive 301(i)(l} extensions because
construction will not be completed by July 1, 1983. Such POTWs should be
issued 309(a)(5)(A) administrative orders. Each administrative order should
reflect one step in the permittee/grantee's construction grant award and should
require compliance with the requirements of that step by the final date for the
completion of the step, or July 1, 1983, whichever is earlier.
In Category II, a POTW may not currently be funded beyond facility planning
(Step 1), requiring issuance of an administrative order in which the final
-24-
-------
compliance date will be the Step 1 completion date. Subsequent administrative
orders would be issued incrementally, with compliance schedules reflective the
las': dates of each construction grant award. Public notice need not be given
for orders subsequent to the *irst.
In Category .'I!, ^ore than one administrative order -nay he necessary to
carry the POTW as far as possible through the construction grant process by
July 1, !9P?, as grant milestones are Identified. Again, public rotice need
not be given for orders subsequent to the first.
Administrative orders are intended to be managed like 301(i}(l)
extensions. Thus, a PQTW's compliance with its administrative order should be
monitored as would a 301(i)(l) extension, and the enforcement response to any
violations of such an administrative order would be carried out in accordance
with procedures delineated in a Region or State's Enforcenent wanagement System
(see Part X).
Should a NPPES State propose to grant a 3ni(i)(l) extension to a POTW in
Categories II, III, IV, V, or VI, the Region should object to and if necessary,
veto ''he permit. When a NPDES State proposes to issue an administrative order
in lieu of a 301(i)(l) extension to a POTW within Categories II or III, the
Region should closely review the administrative order to assure that it
comports with this National Municipal Policy and Strategy. If the order does
not comport with this Policy and Strategy, for example, because the State
administrative order goes beyond July 1, 1983, the Region should request that
-25-
-------
the order be issued in confornity with this Policy and Strategy. If the State
does not so modify the administrative order, the Region should inform the
PCT'w and the State that the State order is without authority and that
compliance with it alone will not protect the POTW fron Federal enforcement.
Further, the Region always retains its right to take enforcement action
independent of any State enforcement action.
-26-
-------
PART VII: PRIORITIES FOR ISSUANCE OF EXTENSIONS AND ADMINISTRATIVE ORDERS
Optimum use of resources is required in the issuance of modified permits
and administrative orders and the awarding of construction grants if the 1983
deadline is to be ~:et. Following is the priority in which these activities
should occur:
PRIORITY FOR ISSUING 301(i)(1) EXTENSIONS
AND 309(a)(5)(A) ADMINISTRATIVE ORDERS
1. Active Grants with Pretreatment Requirements
—Step 3
--Step 2
--Step 1
2. Grantees on Fundable (One Year) Portion of Project Priority List
(Grants not yet awarded)
—Step 3
--Step 2
—Step 1
3. Active Major Grantees (Funded from Previous Project Priority List)
--Step 3
—Step 2
—Step 1
4. Active Minor Grantees (Funded from Previous Project Priority List)
--Step 3
--Step 2
--Step 1
5. Unfunded
-27-
-------
This priority ranking tatces several considerations into account including
tne Agency's emphasis on toxic substances control, funding availability,
aMiit> to formulate fixed date permit scnedules, and size ana environmental
effect of the discharge.
Pretreatinent Priorities
The General P^etreatment Regulations (40 CrK 403) require POTws with
design *Iows ot greater than 5 mgd to develop pretreatment programs (PGTWs with
flows of 5 i.igd or less may be required to develop a pretreatment program in
certain circumstances). Compliance schedules for development of pretreatment
programs must be incorporated into all such permits when the permits are
reissued or modified (e.g., when a permit is reissued or modified to
incorporate a 3Gl(i)(1) extension). Some NPDES States have the authority to
place pretreatment compliance schedules in permits prior to the approval of
State pretreatment programs. Where NPUES States do not have the authority to
write pretreatment compliance schedules prior to State pretreatment approval,
the NPUES permit must contain a reopener or modifier clause (see 40 CFR
4U3.1G(d)(1)) and the permit must be subsequently modified, or revoked and
reissued. Alternatively, in those NPDES States lacking such pretreatment
authority, issuance of NPDES permits to POTWs with pretreatment requirements
may be deferred until the State obtains this authority.
Federal funding for the development of pretreatment programs is available
under the Construction Grants Program. The construction grants regulations
^40 CFR Subpart E) require the completion of certain elements of the
pretreatment program prior to award of Step 2 grants after June 30, 1980, the
-28-
-------
completion of the remaining elements prior to award of Step 3 grants after
December 31, 1980, and the approval of a POTW pretreatment program by the 90
percent completion stage of Step 3. The pretreatment regulations (40 CFR 403)
require POTW pretreatment program approval by July 1, 1983, or three years
after the permit is either modified or reissued, whichever is earlier. It is
anticipated that it will take up to six months after submission of the program
to obtain approval. Accordingly, submission of an approvable pretreatment
program should be six months before the 90 percent Step 3 completion stage, or
2-1/2 years after the permit is modified or reissued, or January 1, 1983,
whichever is earlier.
Given the above deadlines, the first order of priority of the Construction
Grants Program must be to amend existing grants as soon as possible to provide
for development of pretreatment programs. Similarly, issuance of permits to
provide for pretreatment programs is of top priority.
Funding Availability and Schedule Development
The second order of priority is POTWs on the fundable portion of the
Project Priority List. These POTWs represent the fiscal year's workload for
the Construction Grants Program and will require construction to comply with
NPDES permit limitations.
The priority established for issuing 301(i)(l) extensions requires Step 3
projects to be processed first, Step 2 second, and Step 1 last. The rationale
in support of this hierarchy is that, generally speaking, more information is
available at the later steps in the grant process. Additionally, schedules
-29-
-------
with shorter time intervals and hence with a greater accuracy will be
developed, thus either minimizing or reducing the possibility of formal permit
modification due to the inclusion of unrealistic dates in the NPDES permit. In
the case of schedule development for Step 2 and Step 3 projects for which
facility planning requirements (Step 1) have been completed, the States or
Regions are to establish the appropriate time intervals required to complete
Step 2 and Step 3 projects, and, together with the dates of funding
availability contained in the State's PPL, to specify accurate _fixed dates for
initiation and completion of the step. A key point to note is since funding is
available for these POTWs, 301(i)(l) permits are required to contain fixed
schedule dates.
Many of the factors which led to the utilization of the "trigger date"
schedule in the past have either become moot or less relevant. Thus the Agency
has reevaluated its position regarding continued utilization of this type of
schedule and the 301(i) regulations (40 CFR 125.94 (a}(l)) now requires use of
fixed dates.
Of the three step grant process, Step 1, which provides for development of
facility plans, has been the most difficult to maintain on schedule. A number
of other Federal statutes (e.g. the Historic Preservation Act, Endangered
Species Act, National Environmental Policy Act, Wild and Scenic Rivers Act, and
certain Executive Orders) establish requirements which may affect the scope of
the planning process and hence the completion date in mid-course. The scope
of the project may also be revised as a result of the public hearing required
prior to approval of the facility plan under the Construction Grant
regulations.
-30-
-------
In recognition of the above, the fixed schedule approach adopted in the
NPDES regulations distinguishes Step 1 schedule development from that of Steps
2 and 3. Under this approach, the Step 1 schedules would be based upon the
expected date of the Step 1 award, in consideration of availability of Federal
funding, and establishment of an appropriate time period to complete Step 1
work, based on the estimated project scope and the project's ranking on the PPL
for Step 2 funding. Fixed dates would then be incorporated in the NPDES permit
and would also serve as the basis for the grant period in the subsequent grant
award. The permit may be conditioned to expire at that completion date. For
active Step 1 grants for which the permit is expected to expire prior to
completion of the Step 1 project and for which permit reissuance is urgent, it
must be determined if planning has progressed to the point where a completion
date can be specified and the required schedule (40 CFR 35.917-1(a)) for
completion of Steps 2 and 3 is available. Where this information is available,
the schedule should be checked against the PPL. If the schedule dates precede
dates of funding availability, the schedule should be adjusted to reflect the
earliest expected date of grant eligibility. If those dates fall outside the
fundable range of current allotments, the Regions or States should assume
appropriations to the extent indicated in the Agency's annual operating
guidance. In the event facilities planning has not sufficiently progressed to
establish Step 2 and Step 3 schedules, the permit should be conditioned to
expire or be modified shortly after the date of project completion contained in
the Step 1 grant awarded as previously discussed.
Schedules for which Step 1 activities have been completed prior to permit
reissuance should be developed based upon the grantee's submitted schedule and
Federal funding availability, allowing for reasonable Agency review time.
-31-
-------
Agency review time should be established based on State and Regional
experience, average review times as determined from Grants Information Control
System (GIGS) data, Regional workplans, output commitments, or the Zero Base
Budgeting process.
In the case of segmented projects where more than one Step 2 or Step 3
grant exists or is expected to be awarded, schedules should be developed as
previously discussed for each significant project segment for inclusion in the
NPDES permit. For this purpose, a significant project segment is one for which
completion is necessary in order for the permittee to meet final permit
limitations or a project for which a delay would result in delay of attainment
of final effluent limits by the date established in the NPDES permit. If there
is any question concerning whether a project segment is significant under this
definition, Grants, Permits, and Enforcement staff should jointly arrive at a
final determination. Individual or multiple permit schedules should clearly
identify the associated construction grant project number.
Priority numbers 3 and 4 are consistent with past policy for issuance of
NPOES permits. Priority number 5 is self-explanatory.
-32-
-------
PART VIII: TREATMENT MORE STRINGENT THAN SECONDARY
In considering the fiscal year 1979 appropriations bill for the
construction grants program, the Appropriations Conference Conmittee indicated
that the Administrator must personally approve all projects providing treatment
more stringent than secondary (see Appropriations Conference Committee Report,
Amendment No. 23). The Report states that Federal funds may be awarded for
construction of such advanced treatment with an incremental cost of more than
$1,000,000 only if the Administrator personally determines that it will
definitely result in significant water quality and public health improvements.
The advanced treatment review requirement will affect the permit process and
enforcement under the Clean Water Act in a number of ways.
During the grant award review period for advanced projects, some NPOES
permits requiring treatment more stringent than secondary will expire. Since
•
compliance schedules and final effluent limitations in the reissued NPDES
permit depend upon the results of the review, these permits should not be
reissued until the initial review is completed in accordance with the Office of
Water Program Operations, Program Requirements Memorandum (PRM) 79-7. However,
advanced projects are to be promptly identified.
In all cases where the NPDES permit, whether current or expired, requires
treatment more stringent than secondary and the PRM review has not been
completed, enforcement of effluent limitations requiring the more stringent
treatment should be deferred pending completion of the review. The POTW
should proceed with any fundable steps which can be taken toward achievement
-33-
-------
of secondary treatment as long as such steps are not incompatible with the
more stringent facility design.
In some cases (e.g., where 1977 NPDES permit requirements have not
been clearly established and the NPDES permit has expired), it may be
necessary to issue a section 309(a)(5)(A) administrative order (absent an
underlying NPDES permit) which incorporates interim effluent limitations
and a schedule of compliance to assure progress toward the installation of
secondary treatment.
Five possible determinations may be expected from the PRM review
process:
(1) The more stringent project as proposed is fully justified and is
fully fundable (although the project may not currently be on the
fundable portion of the Project Priority List); or
(2) The more stringent level of treatment required of the POTW was
based on incorrect or inadequate water quality analysis and, therefore,
the more stringent portion of the project as proposed is not required
and is not fundable, but a lesser level of treatment is justified and
is fundable; or
(3) The more stringent level of treatment required of the POTW was
based on incorrect or inadequate water quality analysis, and advanced
treatment may not be required to satisfy water quality requirements,
but additional information is needed to determine what is the
appropriate and fundable treatment level; or
-34-
-------
(4) The more stringent level of treatment is justified but a reeval-
uation of the cost-effective analysis and/or design of the entire
project or portion of the project is recommended to arrive at a less
costly treatment alternative or configuration; or
(5) Treatment greater than secondary is required to achieve more
stringent State requirements, but the greater level of treatment has
been determined by the PRM review to be ineligible for construction
grant funding, and the State has chosen not to relax its requirements.
Should the PRM review result in determinations (1) or (2) above, the
POTW will fall into one of the categories of POTWs as outlined in Part III
and should be dealt with accordingly.
Determinations (3) or (4) above could result in funding being deferred
for the entire facility or any element of the facility pending the further
information gathering and subsequent analysis. In these situations,
although the final PRM review is not complete, the process previously dis-
cussed for determining eligibility for a 301(i)(l) extension under Part IV
of this document should be applied. Should application of this process
result in a POTW falling into Categories I, II or III as outlined in Part
III, the appropriate requirements of any construction grant or grant amend-
ment awarded the POTW for purposes of gathering additional information are
to be incorporated into the NPDES permit or 309(a)(5)(A) order, whichever
instrument is applicable under this National Municipal Policy and Strategy.
-35-
-------
If the PRM review results in determination (5), the reissued permit
must contain final effluent limitations which are necessary to meet the more
stringent State requirements. However, since the more stringent treatment
will not be Federally funded in these instances, enforcement of these permit
requirements calls for special consideration. For Federally-issued permits,
there should be a commitment from the non-NPDES State prior to permit
issuance to enforce the more stringent requirements.
With regard to enforcement by EPA, if the POTW has not significantly
contributed to construction delays, enforcement of more stringent than
secondary requirements imposed pursuant to determination (5) should be
postponed, and a construction schedule taking the POTW through to completion
of that portion of the project which the PRM review has determined to be
fundable (secondary treatment at a minimum) should be required, generally by
means of a section 309(a)(5)(A) administrative order. If, however, the POTW
subsequently violates its compliance schedule, action to enforce the more
stringent treatment requirements consistent with the Municipal Referral
Priority System (see Part IX) is appropriate. Even though a POTW has ex-
peditiously completed construction to the fundable treatment level, the more
stringent requirements are legally enforceable.
The State nay elect to relax its more stringent requirements to the
level which has been determined by EPA's PRM review to be fundable. In that
case, the NPDES permit may be modified to require the less stringent final
effluent limitations, and a compliance schedule for achievement of the
fundable treatment level should be established.
-36-
-------
PART IX: MUNICIPAL REFERRAL PRIORITY SYSTEM
Purpose
The Municipal Referral Priority System (MRPS) is a system for identifying
and setting priorities for case referrals to the Department of Justice by EPA
and to State Attorneys General by the State. This system assumes that
enforcement actions short of referral, if appropriate, have been taken and did
not achieve the desired results.
Referral for judicial action against POTWs which failed to meet the July 1,
1977 treatment requirements can have one or more of the following results:
o assessment of penalties for past violations in accordance with the
April 11, 1978 Penalty Policy Memorandum
o imposition of judicially enforceable compliance schedules
o penalties for noncompliance with the judicially imposed schedules
o appointment of a special master
o sewer hook-up bans as authorized by section 402(h) of the Clean Water
Act
o the availability of the funding necessary for completion of
construction as a result of 309(e} of the Clean Water Act
NPDES States which have the authority to assess administrative penalties
should do so first, because administrative penalties contain some (but not all)
elements present in the referral process and may achieve the desired results
more expeditiously than referral for judicial action.
NOTE: Judicial action against POTWs which did not significantly contribute to
delays in construction and for which judicial action is necessary to
assure the availability of construction grant funding will not ordinarily
seek assessment of penalties for past violations.
-37-
-------
Scope
Candidates for judicial action under the MRPS are: (1) all POTWs for which
construction is needed but which do not qualify for a 301(i)(l) extension and
will not receive a 309(a)(5)(A) administrative order (Category VI): (2)
recipients of section 301(i)(l) permit extensions, 301(h) permit modifications,
ECSLs, or administrative orders which subsequently violate such extensions,
ECSLs or administrative orders; and (3) POTWs which have completed construction
but are not meeting the final effluent limits or other requirements of permits
(Category V). POTWs in Category IV which are subject to referral as a means of
moving the POTW into Category II are discussed in a separate section in this
Part entitled, Special Enforcement.
Effect of 301(i)(1) Request on Initiated Referrals
In determining that a judicial action should be taken against a POTW for
failing to meet the July 1, 1977 deadline, the Agency has necessarily
determined that the failure of the POTW to meet that deadline is attributable
in a significant measure to the POTW's own action or inaction rather than the
unavailability of Federal funds alone. Since this determination is dispositive
of 301(i)(l) requests, requests in these cases should be denied for any POTWs
against which such a judicial action has been filed or referred. The initiated
referral shall continue unaffected by the MRPS.
Procedure
The referral priority rank for a POTW is based on the POTW's size and
treatment level, with possible adjustments if certain factors are present. The
-38-
-------
referral priority ranking of each POTW within either an EPA Region or a NPDES
State should be derived as follows:
(1) List all major POTWs in the Region or State according to population
served, from the largest to the smallest (regional sewer authorities
should be ranked according to the total population served by the
regional POTW); and
(2) Rank those POTWs into three population-served groups (POTWs with
populations greater than or equal to 100,000, POTWs with populations
from 50,000 to 99,999, and all other POTWs); and
(3) Within each of these three population groups, rank the POTWs
according to current treatment level:
(a) POTWs with no treatment (raw sewage dischargers).
(b) POTWs with primary treatment installed and waste treatment
requi red.
(c) POTWs with primary treatment installed and secondary treatment
required.
(d) POTWs with intermediate treatment installed and advanced
waste treatment required.
(e) POTWs with intermediate treatment installed and secondary
treatment required.
(f) POTWs with secondary treatment installed and advanced waste
treatment required.
(g) POTWs with secondary treatment installed but not in compliance
with effluent limitations.
(h) POTWs with advanced wastewater treatment installed but not in
compliance with effluent limitations.
(4) Within each of the eight current treatment level groups, rank POTWs
according to the following eight priority factors in order of
importance:
(a) Significant drinking water use/public health hazard;
(b) Fisheries, shellfish and protected areas, and/or scenic and
recreational areas threatened;
-39-
-------
(c) Failure to develop adequate pretreatment programs or to operate
an approved program under 40 CFR 403, or have had a spill of
toxic and/or hazardous materials within the previous calendar
year;
(d) Reconstruction lag greater than twelve months (see Office of
Water Program Operations, Program Requirements Memorandum 78-12),
(e) PGTW is eligible but has not applied for a grant (more than six
months late),
(f) POTW is eligible but has not applied for a grant (less than six
months late);
( g) Blatant disregard of standard operation and maintenance (O&M)
procedure;
(h) Poor O&M practices which have detrimental effects on POTW
performance.
Special Enforcement: Public Health and Fragile Ecosystems
Development of a referral priority list should not be perceived as
restricting the Region's discretion to immediately pursue actions against other
significant municipal pollution sources where violations of a POTW's NPDE5
effluent criteria result in a threat to the general public health and safety in
an area. The POTW would move into a top priority position for the allocation of
Regional and State resources, overriding the normal order of referral as
established by the MRPS.
Consideration for special enforcement may be given on a case-by-case basis
for municipalities causing damage to fragile ecosystems, defined as fisheries
or special recreational areas. Such requests should be made in writing to the
Deputy Assistant Administrator for Water Enforcement.
-40-
-------
Special Enforcement: Category IV
Additionally, selected POTWs which would otherwise fall into Category III
should be candidates for referral when the POTWs are causing either significant
threats to the public health and safety or damage to fragile ecosystems, and
they are low on the State Project Priority List. In these cases, the referral
mechanism is the best or only one available to assure prompt achievement of
NPDES permit requirements.
Implementation
EPA Regional Offices are required to use the MRPS to produce lists of
identified Regional and NPDES State municipal referral candidates. As POTWs
fail to meet the terms and conditions of their ECSLs, administrative orders,
permit modifications or extensions, or are deemed to be enforcement candidates
under MRPS, they should be added to the MRPS lists and ranked accordingly.
Candidates ranked according to MRPS include those POTWs in the municipal Major
Source Enforcement Effort (MSEE) which have violated the July 1, 1977 statutory
deadline for the installation of secondary treatment technology.
-41-
-------
PART X: FORMULATING A MUNICIPAL MANAGEMENT SYSTEM
An overall Municipal Management System (MMS) will serve as the key
mechanism through which EPA Regional and State Enforcement and Grants staffs
develop formal operating procedures to support preparation of compliance
schedules in 301(i)(l) extensions and 309(a)(5)(A) administrative orders as
well as to respond to instances of noncompliance when they occur. While the
emphasis of this system will be on updating the current Enforcement Management
System (EMS), numerous grants management activities must be added.
Four work groups were specified in the "Interim National Municipal Policy
and Strategy" (September 1978). These workgroups, comprised of State and EPA
representatives, met in the period from November 1978 through March 1979 and
addressed the following subjects:
o Permits and Grants interaction
o Compliance and Grants information systems
o Noncompliance response guidance
o State-U.S. EPA cooperation
The products of the four municipal workgroups are designed to provide a more
detailed framework for Regional and State program managers to implement the
policies herein. The municipal workgroup products provide for:
o Issuing effective NPDES permits
o Developing a common data link between the Permit Compliance System (PCS)
and the Grants Information Control System (GICS)
-42-
-------
o Implementing a consolidated noncompliance response guide for
coordinating Grants and Enforcement response
o Developing formal Regional and State operating procedures for dealing
with POTWs
o Instituting time frame controls for implementing action steps specified
in the MMS
-43-
------- |