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OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Special Review
Congressionally Requested Review of
EPA Region 3's Oversight of State
National Pollutant Discharge
Elimination System Permit Programs
Report No. 2005-S-00002
October 29, 2004

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Report Contributors:	Eileen Collins
Lorraine Fleury
Randy Holthaus
Khadija Walker
Abbreviations
CFR	Code of Federal Regulations
EPA	Environmental Protection Agency
NPDES	National Pollutant Discharge Elimination System

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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
2005-S-00002
October 29, 2004
Catalyst for Improving the Environment
Why We Did This Review
Senator Barbara Mikulski
asked us to evaluate whether
EPA Region 3 is overseeing
the National Pollutant
Discharge Elimination System
(NPDES) permit program
properly. We agreed to
provide a review responding
to five questions.
Background
Since 1972, the NPDES
permit program has controlled
water pollution by regulating
point sources that discharge
pollutants into United States
waters. In most cases,
authorized States administer
the program. EPA is
responsible for overseeing
State implementation of the
program.
For further information,
contact our Office of
Congressional and Public
Liaison at (202) 566-2391.
To view the full report,
click on the following link:
Congressionally Requested Review of EPA
Region 3's Oversight of State Nationai Pollutant
Discharge Elimination System Permit Programs
What We Found
The review answers five specific questions:
1.	What are the statutory and regulatory requirements that EPA must follow
for conducting oversight of State NPDES programs? The oversight
requirements in the law are limited, but requirements are in the regulations.
2.	How many major and minor NPDES permitted sources are in Region 3
States? Of the 7,499 traditional NPDES permitted sources in the Region, 750 are
major sources and 6,749 are minor sources with individual permits.
3.	How many inspections and enforcement actions were taken? According to
the information in the Permit Compliance System, from October 1, 2002, to
August 9, 2004, Region 3 and States inspected 3,729 permittees and took 205
enforcement actions. However, States do not report all of their actions in the
system.
4.	What are Region 3's procedures for ensuring that States comply with
grant work plans? EPA Order 5700.6, entitled Policy on Compliance, Review
and Monitoring, is the official policy that the Regions should follow to ensure
grant recipients are complying with grant work plans. In Region 3, multiple
people within the Water Division manage the grants. The project officers rely on
technical staff in the Division to obtain some of the reports States should submit
and inform them if they are having problems with a State. The Region also
conducts joint evaluations with States regarding the grant work plan.
5.	What are Region 3's procedures for ensuring that States are monitoring
permits and taking timely enforcement actions? Region 3 uses various tools
for overseeing States, including (a) reviewing information in the Permit
Compliance System, (b) making quarterly calls with States, (c) carrying out
Federal inspections and enforcement actions, and (d) reviewing State programs.
www.epa.gov/oig/reports/2005/
20041029-2005-S-00002. pdf

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Table of Contents
Letter to Senator Mikulski 		1
What are the statutory and regulatory requirements that EPA must follow
for conducting oversight of State NPDES programs?		2
How many major and minor NPDES permitted sources are in Region 3 States? 		2
How many inspections and enforcement actions were taken? 		3
What are Region 3's procedures for ensuring that States comply with
grant work plans?		4
What are Region 3's procedures for ensuring that States are monitoring
permits and taking timely enforcement actions?		5
Appendices 		6
A.	Background 		6
B.	Details on Federal Requirements and Other Guidance Related to the NPDES Program	7
C.	Details on Inspections and Enforcement Actions 		12
D.	Region 3 Activities and Details on FTEs		14
E.	Scope and Methodology		17
F.	Region 3's Response 		19

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
October 29, 2004
The Honorable Barbara A. Mikulski
United States Senate
Washington, DC 20510-2003
Dear Senator Mikulski:
In your letter dated June 4, 2004, you asked that our office evaluate whether EPA Region 3 is
overseeing the National Pollutant Discharge Elimination System (NPDES) permit program
properly. You particularly wanted to know if Region 3 had routinely turned over the program to
the States and then provided little to no oversight unless there was a crisis. Based on
conversations with your staff, we agreed to provide a review related to five specific questions.
Your concern about Region 3's oversight of State NPDES programs focused on publicly owned
treatment works. As a result, we limited the focus of this review to industrial and municipal, or
traditional, point sources. In responding to a draft of this review, Region 3 explained that to
fully address the sources of pollution, the NPDES program has evolved to focus on new sources
that are often sporadic and the product of wet weather events, and do not fit into the traditional
NPDES paradigm. The Region stated that the program shifted its emphasis in the early 1990's to
address these pollution sources, and they are now a national priority for the NPDES program.
While we did not expand our review to include the other types of sources, Region 3 in its
response provided information regarding these sources. We did not evaluate this additional
information.
The following paragraphs provide brief answers to the five specific questions. Our answers are
supplemented by additional information in Appendices B through D. Appendix A provides
general background information, Appendix E provides details on our scope and methodology,
and Appendix F is a copy of Region 3's comments to our draft review.
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1.	What are the statutory and regulatory requirements that EPA must follow for
conducting oversight of State NPDES programs?
Federal requirements in law that specifically relate to EPA overseeing State NPDES
programs are limited. The law specifies actions that either EPA or authorized States
must take to carry out the program. EPA oversight responsibilities are in the regulations
at 40 CFR Part 35 and Part 123. Many of these requirements specify actions that
authorized States must take to carry out the program. Generally EPA, in its oversight
role, is responsible for ensuring that States take such actions.
Other documents—such as EPA guidance—also discuss oversight. See Appendix B for
further details on the requirements found in the Clean Water Act, regulations, and other
guidance documents.
2.	How many major and minor NPDES permitted sources are in Region 3 States?
According to data from the Permit Compliance System, as of July 1, 2004, a total of
7,499 NPDES permitted sources were within Region 3—750 major and 6,749 minor
sources with individual permits. These numbers represent traditional NPDES point
source dischargers and do not include wet weather permittees, general NPDES permit
facilities, or construction sites. A "major" municipal permitted source is a point source
that has a design flow of at least 1 million gallons per day. A "major" industrial source is
defined through a specified ranking system. Certain classes of permittees are
automatically designated as majors, such as nuclear power plants. A "minor" facility is
any permitted facility other than a major facility. Minor sources comprise about 90
percent of the universe of Region 3 permittees.
Table 1: Traditional Permitted Sources in Region 3
Type of Source
DC
DE
MD
PA
VA
WV
Total
Major
4
21
94
384
149
98
750
Minor
11
35
488
4,146
1,156
913
6,749
Total
15
56
582
4,530
1,305
1,011
7,499
Percentage of
Total
1%
1%
8%
60%
17%
13%
100%
Source: EPA Permit Compliance System
2

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3. How many inspections and enforcement actions were taken?
According to the information in the Permit Compliance System, from October 1, 2002, to
August 9, 2004, Region 3 and the States conducted the following number of inspections
and enforcement actions.
	
Table 2: Inspections Conducted in Fiscal Years 2003 through 2004
Type of Source
Region 3
DE
MD
PA
VA
WV
Total
Major
375
40
416
241
314
96
1,482
Minor
97
24
793
30
1,115
188
2,247
Total
472
64
1,209
271
1,429
284
3,729
Source: EPA Permit C
'ompliancc Syst
em





Table 3: Enforcement Actions Taken in Fiscal Years 2003 through 2004
Type of Source
Region 3
DE
MD
PA
VA
WV
Total
Major
47
0
14
19
18
8
106
Minor
11
0
47
0
37
4
99
Total
58
0
61
19
55
12
205
Source: EPA Permit Compliance System
The District of Columbia is not listed separately in either of these two tables because the
District is not authorized to run the program. The inspections and enforcement actions
Region 3 conducted in the District are included in the tables above as part of Region 3's
inspection and enforcement actions.
The tables above only include inspections and enforcement actions States include in the
Permit Compliance System. However, not all actions are reported in this system. States
are not required to report all inspections and enforcement actions for minor permittees.
See Appendix C for further details on inspections and enforcement actions.
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4. What are Region 3's procedures for ensuring that States comply with grant work
plans1?
EPA has procedures in place to ensure that grants are properly monitored by both grants
and program officials after award. EPA Order 5700.6 entitled Policy on Compliance,
Review and Monitoring is the official policy that the Regions should follow to ensure
grant recipients are complying with work plans. In Region 3, multiple people within the
Water Division manage the grants. The project officers rely on technical staff in the
Division to obtain some of the reports States should submit. In addition, the project
officers expect the technical staff to inform them if they are having problems with a
State. The project officer and technical staff each maintain files containing some of the
documents submitted by the States. As a result, there is no one location for maintaining
all grant reports, which increases the difficulty in locating the information.
The information that Region 3 requires the States to submit, as specified in the work
plans, varies greatly from State to State. For example, four of the five State work plans
required inspections to be reported. However, this one requirement ranged from strictly
reporting the number of inspections conducted, to a list of facility types that were
inspected, to the actual inspection reports being submitted to the Region.
In addition to the grant work plans, the Memorandum of Agreement/Understanding
between the States and Region 3 require the States to submit reports, such as inspections
conducted and enforcement actions taken. Each of the five States has its own
Memorandum of Agreement/Understanding with the Region-all of which are over 10
years old. The amount of information that the Region requires States to submit based on
these documents also varies greatly. For example, three of the five Agreements require
the States to report the names of the permitted sources to be inspected. According to the
State Oversight Coordinators, this information and other required reports are no longer
needed. However, these requirements have not been rescinded.
The Region conducted annual joint evaluations for two of the five States (Maryland and
Virginia) during fiscal year 2004. The joint evaluation process must include a discussion
between EPA and the State regarding progress made in meeting grant commitments, and
any existing and potential problem areas. If the evaluation shows that the State has not
made sufficient progress, EPA and the State must negotiate a resolution that addresses
the issues. See Appendix D for further details on Region 3 activities.
' EPA uses grants to fund State NPDES programs.
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5. What are Region 3's procedures for ensuring that States are monitoring permits
and taking timely enforcement actions?
Region 3 State Oversight Coordinators are responsible for ensuring that the five Region 3
States adequately monitor and enforce their NPDES program. The coordinators rely on
State-submitted data in the Permit Compliance System to determine if States are properly
running the NPDES monitoring and enforcement programs. In addition to their day-to-
day communications with the States, the coordinators also have quarterly meetings via
telephone where they discuss enforcement cases, data management issues, and any other
current activities. They also rely on information obtained from inspections and
enforcement actions conducted by Region 3 staff. Region 3 conducts various types of
reviews of state programs. The Region has focused most of its efforts on major sources
with individual permits as opposed to minor sources with individual permits. See
Appendix D for further details on Region 3 activities and resources spent on oversight.
If you or your staff have any questions, please contact Eileen McMahon, Assistant
Inspector General for Congressional and Public Liaison, at (202) 566-2391.
Sincerely,
/s/
Nikki L. Tinsley
Appendices (6)
5

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Appendix A
Background
Water pollution degrades surface waters making them unsafe for drinking, fishing, swimming,
and other activities. As authorized by the Clean Water Act, the National Pollutant Discharge
Elimination System (NPDES) permit program, since 1972, has been used to control water
pollution by regulating point sources that discharge pollutants into waters of the United States.
Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes
that are connected to a municipal system, use a septic system, or do not have a surface discharge
do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain
permits if their discharges go directly to surface waters.
In most cases, authorized States administer the NPDES permit programs. EPA Region 3
oversees the NPDES program of five States-Delaware, Maryland, Pennsylvania, Virginia, and
West Virginia. Delaware and Maryland received EPA authorization to run the program in 1974,
Virginia in 1975, Pennsylvania in 1978, and West Virginia in 1982. The District of Columbia
does not have EPA authorization to run the program. When EPA authorizes a State to run the
program, the State is then responsible for writing the permits, reviewing monitoring data that
sources submit, and taking enforcement actions, when appropriate, against sources. Even though
a State is authorized to run the program, Region 3 can conduct its own inspections of, and take
enforcement actions on, permit holders.
The Permit Compliance System is the national data system EPA uses to support the NPDES
program. This system, which is managed by EPA's Office of Enforcement and Compliance
Assurance, is a critical information system for EPA's Office of Water. According to EPA, the
system tracks NPDES permit issuance, permit limits, self monitoring data, and enforcement and
inspection activity for more than 64,000 facilities regulated under the Clean Water Act. For
minor permitted sources, neither EPA nor States are required to input information into the Permit
Compliance System for all enforcement actions, parameter limits, and measurement data. In
practice, some States input this information for some minor sources.
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Appendix B
Details on Federal Requirements and
Other Guidance Related to the NPDES Program
Federal requirements for the NPDES program are in the Clean Water Act (Act) and the Code of
Federal Regulations (CFR). In addition to the CFR, other EPA guidance documents and
individual Memorandums of Agreement between Region 3 and its States discuss oversight.
Many of the key guidance documents that EPA's Office of Enforcement and Compliance
Assurance and the Office of Water issued to EPA Regions are from the late 1980s.
Federal Requirements in the Law
EPA is authorized, under Section 106 of the Act, to issue grants to States for the purpose of
assisting in establishing and carrying out pollution prevention programs.
Under Section 308 of the Act, EPA and authorized States must require the owner or operator of
any point source to establish and maintain records; make reports; install, use, and maintain
monitoring equipment; sample effluents in accordance with methods prescribed by EPA; and
provide other information as required. EPA and authorized States have the right of entry to,
upon, or through any premises where an effluent source is located or in which any records
required to be maintained are located. EPA and authorized States may have access to and copy
any records, inspect any monitoring equipment or method required, and sample any effluents that
the owner or operator of such source is required to sample.
Section 309 of the Act allows EPA and authorized States to issue administrative orders and
assess criminal and civil penalties for violations of permit conditions and limitations. Further,
EPA must establish guidelines for monitoring and reporting requirements, as well as
enforcement provisions. Whenever EPA finds that any permittee violates any condition or
limitation of the Act in a permit issued by a State under an approved permit program, EPA must
notify the permittee of the violation and the State of the finding. If EPA notifies the State and
the State does not commence enforcement actions within 30 days, EPA must issue an order
requiring the permittee to comply with such condition or limitation or must bring a civil action in
accordance with Section 309. If EPA finds that violations of permit conditions or limitations are
so widespread that such violations appear to result from a failure of the State to enforce such
permit conditions or limitations effectively, EPA shall notify the State that it has 30 days to
correct the problems. If the State does not correct the problems, EPA must take corrective
actions.
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Requirements in the Regulations
Regulations related to Federal oversight of the NPDES program are in 40 CFR Parts 35 and 123.
Regulations at 40 CFR Part 35 specify the requirements related to Section 106 grants. Title 40
CFR Part 123 specifies what States are required to report, and, therefore, the information EPA
should be reviewing as part of its oversight of the States.
Regulations at 40 CFR Section 35.107 require that EPA and the States negotiate work plans,
considering factors such as national program guidance, as well as regional guidance, goals, and
priorities. The work plan is the basis for managing and evaluating performance under the grant
agreement. A work plan must specify, among other things, the commitments for each work plan
component, a time frame for accomplishing each activity, and the roles and responsibilities of
the States and EPA in carrying out the commitments.
According to 40 CFR Section 35.115, EPA and the States must develop a process for jointly
evaluating and reporting progress and accomplishments under the work plan. The State must
report at least annually to EPA on its progress. The evaluation process must provide, among
other things, a discussion of progress against the commitments made and a discussion of existing
and potential problems. If the joint evaluation reveals that the State has not made sufficient
progress under the work plan, EPA and the State must negotiate a resolution that addresses the
issues. Copies of evaluation reports are to be maintained in EPA's official files and provided to
the State.
Title 40 CFR Section 35.168 describes the minimum requirements that States must meet to be
eligible for water pollution control grants. The minimum requirements include compiling and
reporting water quality data, and coordinating work plan activities with activities the States
propose, as part of their water quality management planning grants.
Regulations at 40 CFR Part 123, entitled State Program Requirements, specify what States are
required to enforce and report to EPA for the NPDES program. These regulations require that
States (1) provide quarterly reports for major facilities in noncompliance, (2) submit an annual
report to EPA of noncompliance for minor sources, (3) submit a semi-annual report to EPA
listing major permitted sources with two or more violations of the same monthly average permit
limit in a six-month period, and (4) have procedures for and the ability to inspect the facilities of
all major dischargers at least once per year.
Title 40 CFR Section 123.24 specifies that the Memorandum of Agreement, which is between
EPA and the States and delegates the program to individual States, should include, among other
things, "provisions specifying the frequency and content of reports, documents, and other
information which the State is required to submit to EPA. State reports may be combined with
grant reports where appropriate." This section also states that the Memorandum of Agreement
should have provisions for coordinating compliance monitoring and enforcement activities by
the States and by EPA.
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Title 40 CFR Section 123.26, entitled Requirements for Compliance Evaluation Program, covers
the State NPDES compliance evaluation programs; it requires the States to maintain a
comprehensive inventory of all sources covered by NPDES permits and a schedule of reports
required to be submitted by permittees to the State agency. This section also requires that the
States have procedures for and the ability to inspect the facilities of all major dischargers at least
once per year.
Headquarters' Guidance
Numerous Headquarters' guidance documents, some from the 1980s, contain procedures that
Region 3 can use to oversee the NPDES program and water grants. The EPA guidance primarily
pertains to oversight of major permitted sources, and not minor permitted sources. These key
documents include (1) NPDES Program Guidance for Development and Review of State
Program Application and Evaluation of State Legal Authorities, (2) National Guidance for
Oversight of NPDES programs, (3) the Enforcement Management System, (4) Quarterly Non-
Compliance Report Guidance Manual, (5) Office of Enforcement and Compliance Assurance
Guidance for Memorandum of Agreement, and (6) EPA Order 5700.6 Policy on Compliance,
Review and Monitoring.
NPDES Program Guidance for Development and Review of State Program Application
and Evaluation of State Legal Authorities (July 1986): This guidance addresses the legal
aspects of State program oversight and the methods for resolving program deficiencies.
Specifically, the guidance refers to an annual review that the Region prepares outlining
the State's accomplishments and indicating areas needing improvement. This report
should be provided to the Office of Water in Headquarters. The guidance also addresses
how a properly drafted work plan should contain quantifiable outputs for each described
activity that can be used to evaluate the State's progress toward meeting its
commitments. When a State does not meet its commitments, the guidance contains
resolution options ranging from informal dialogues with the State to program withdrawal.
National Guidance for Oversight of NPDES Programs (May 1987): This guidance
requires the Region to conduct audits of the State programs by taking random samples of
discharge monitoring reports and Permit Compliance System data to ensure the States are
properly monitoring the NPDES program. Oversight of the enforcement program should
assess the timeliness and appropriateness of the States' response to violations. States
should have quarterly and annual inspection plans. States should conduct audits of each
local program at least once every 5 years, conduct annual pretreatment inspections of
publicly owned treatment works with approved local programs, and review monitoring
reports.
The Enforcement Management System (1989): The guidance provides both EPA and
State enforcement agencies with a system for developing their own compliance and
enforcement policies. The intent of the system is to provide consistency across the nation
regarding enforcement policies, yet allow flexibility. The Enforcement Response Guide
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within the system provides examples of noncompliance incidents, the circumstances in
which the incidents occurred, and a range of responses that are applicable.
Quarterly Non-Compliance Report Guidance Manual (April 1994): This guidance
manual illustrates how to review and interpret the information contained in the quarterly
report. The manual describes the different types of violations and explains that
"significant non-compliers" is not a regulatory distinction but a program definition used
for management purposes and serves to classify those violations EPA believes merit
priority enforcement attention. In addition, it provides explicit detail on how to interpret
the Permit Compliance System data elements included in the report. The last section of
the manual provides a four-step approach for reviewing the quality of the report.
Office of Enforcement and Compliance Assurance Guidance for Memorandum of
Agreement (June 2001): This Headquarters' guidance for the Regions is a tool for
developing grant work plans between the Regions and their States. The guidance
covered fiscal years 2002 and 2003. The Memorandum of Agreement guidance
identified the overall program directions, work plans, specific activities, and expected
results. State work plans should take into consideration national, regional, and State
priorities. This guidance identified wet weather sources as the national priority. The
guidance also identified the goal of inspecting 100 percent of the major NPDES
permittees. However, priority minor permittees are allowed to be traded for major
permittees at a ratio of 2 minors to 1 major. The minors that can be traded for majors are
sources in priority watersheds, sources that discharge to impaired waters, or wet weather
sources.
The Memorandum of Agreement guidance requires Regions to review the discharge
monitoring report information that is put in the Permit Compliance System for the
required data elements. The Permit Compliance System is to include data on all major
permittees, and any minor permittees the State has included as part of its inspection
requirement.
EPA Order 5700.6 Policy on Compliance, Review and Monitoring (January 2004)2: This
policy was issued to create more effective post-award grants management and monitoring
within the Agency. The policy identifies baseline monitoring responsibilities for grant
offices and program offices that are to be carried out annually. As part of baseline
monitoring, the grants management office is to ensure (a) the recipient satisfies
administrative award conditions, (b) the recipient files single audit reports, (c) financial
status reports are reconciled with available funds for the project, and (d) the program
office receives quality assurance documents. Baseline monitoring for the program
offices includes the project officer ensuring that programmatic terms and conditions are
2The purpose of this policy was to consolidate, improve, make consistent, and streamline all
existing EPA post-award management policies.
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satisfied, and progress reports and quality assurance reports are received and acceptable.
Project officers are also required to reconcile the financial status of the award with the
project's progress. Much of this activity is dependent upon sharing information between
the two offices. All baseline monitoring information must be documented in the
respective official project officer and grant specialist files.
Region 3 Guidance
Region 3 has developed further guidance for taking timely and appropriate enforcement actions.
These guidelines were disseminated to the Region 3 States in May 1997. Region 3's goal
(although not a requirement) is that violations will be addressed before they become
exceptions-that is, before a system is out of compliance for two consecutive quarters. This
Regional process presumes that States would be able to address most violations within 6 to 8
months of their occurrence. Specific time frames for what is considered acceptable depend upon
the nature of the violation and the extent and schedule of enforcement action that the State has
committed to undertake. Region 3's timely and appropriate enforcement policy complements the
national timely and appropriate guidelines that are included in the National Guidance for
Oversight o/NPDES Programs.
Region 3 uses the EPA and Regional strategic plans to set out priorities for the NPDES program.
The strategic plans identify objectives for program implementation and state oversight and
establish key measures of progress and reporting requirements. The strategic plans, along with
national program guidance, are used in developing State grant work plans.
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Appendix C
Details on Inspections and Enforcement Actions
Region 3 conducted the following inspections, by State, from October 1, 2002, through August
9, 2004.
Table 4: Inspections Conducted by Region 3
Type of Source
DC
DE
MD
PA
VA
WV
Total
Major
10
14
79
255
8
9
375
Minor
8
3
45
35
4
2
97
Total
18
17
124
290
12
11
472
Source: EPA Permit Compliance System
The Region uses different targeting approaches depending upon the purpose of the inspection.
For example, if the purpose of the inspection is to assess the quality of a state inspection, the
Region will select a facility the State recently inspected. If the purpose of the inspection is to
identify sources of water impairments, the Region will select facilities based on the nature of the
water impairment and characteristics of target facilities. The Region may also select a facility
for inspection based on a citizen complaint.
States conducted the following number of inspections:
Table 5: Inspections Conducted by States
Type of Source
DE
MD
PA
VA
WV
Total
Major
40
416
241
314
96
1,107
Minor
24
793
30
1,115
188
2,150
Total
64
1,209
271
1,429
284
3,257
Source: EPA Permit Compliance System
The inspections listed in tables 4 and 5 include Compliance Evaluation Inspections and
Compliance Sampling Inspections. The intent of the inspections is to ensure that permittees
comply with the self-monitoring requirements, effluent limits, and compliance and sampling
schedules. Also, States reported in the Permit Compliance System that they conducted 5,441
reconnaissance inspections. Reconnaissance inspections are not as comprehensive as the
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evaluation and sampling inspections, as less time and fewer resources are used. However, these
inspections, according to Region 3, are particularly useful in responding to citizen complaints,
maintaining a regular compliance presence, and targeting future investigations.
The Region conducted the following enforcement actions from October 1, 2002, to August 9,
2004, by State:
Table 6: Enforcement Actions Taken By Region 3
Type of Source
DC
DE
MD
PA
VA
WV
Total
Major
3
3
4
32
2
3
47
Minor
0
0
0
5
2
4
11
Total
3
3
4
37
4
7
58
Source: EPA Permit Compliance System
States took the following enforcement actions from October 1, 2002, through August 9, 2004.
Table 7: Enforcement Actions Taken by States
Type of Source
DE
MD
PA
VA
WV
Total
Major
0
14
19
18
8
59
Minor
0
47
0
37
4
88
Total
0
61
19
55
12
147
Source: EPA Permit Compliance System
EPA and State enforcement actions ranged from consent decrees to letters of warning. A
consent decree is the result of a judicial action and can include cash penalties. A letter of
warning notifies a party of some infraction or violation.
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Appendix D
Region 3 Activities and Details on FTEs
Region 3 uses several tools for overseeing State programs.
Region 3 relies on the Permit Compliance System database to monitor State activities.
Region 3 reviews the data States enter into the system for completeness, but it does not
check the data for accuracy. The Region does, however, check the accuracy of the data
that Region 3 staff enter. It is the responsibility of the States to ensure the accuracy of
the data that they enter.
Region 3 uses quarterly calls with States to monitor progress on enforcement actions.
During quarterly calls, the Region and States discuss the Watch List and quarterly reports
to determine whether States are taking timely and appropriate action. The Watch List is
used to track facilities with serious or chronic violations for which no formal
enforcement response had been taken. The Region generally documents these meetings
and covers major topics with its States, including discussing how to bring significant
non-compliers back into compliance, tracking progress in implementing agreed upon
strategies and work plans, assessing the status of ongoing cases, and identifying progress
in addressing citizen complaints. Regional staff also consult with States regarding the
status of ongoing cases and implementation of State strategies and work plans at other
times besides during the quarterly calls.
Region 3 uses information it gathers when conducting Federal inspections of facilities to
evaluate the quality of inspections the State has performed at that facility, and the
adequacy of the facility's permit, which the State prepared. When Region 3 initiates
enforcement actions, it discusses the rationale for initiating the enforcement action with
the State, so that the State can incorporate Region 3's expectations and policies into its
program.
Region 3 conducts various types of reviews of State programs. The Region conducted a
comprehensive review of the NPDES program in Maryland and a preliminary review of
Delaware in 2002. However, the Region never finalized these reports. As part of the
National Permitting for Environmental Results Project, in fiscal year 2004, Region 3
conducted NPDES program evaluations by preparing program profiles for Delaware,
Maryland, Pennsylvania, Virginia, and West Virginia. These profiles are expected to be
available in December 2004. Maryland is also a pilot state in the Office of Enforcement
and Compliance Assurance's State Review Framework project, an effort to standardize
the approach that Regions will use to review State enforcement programs. In June 2004,
Region 3 evaluated the adequacy of the Maryland inspection program by conducting joint
inspections at three sewage treatment plants. Region 3 concluded that Maryland's
inspection procedures were comparable to those of EPA.
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Region 3's Procedures to Ensure Its Own
Enforcement Actions are Addressed Timely and Appropriately
According to the Region, the Region 3 inspector who detects a violation is responsible for
proposing the appropriate enforcement action. Once a month, several Regional offices hold a
screening meeting where they go over new cases and determine if the action is appropriate and
set a date for issuing the penalty. The case will be assigned a docket number and progress of the
enforcement action is tracked monthly.
Regional Resources
According to Region 3, it spent about 16 full-time equivalent positions3 to execute its
compliance and enforcement water program in FY 2003, which includes its own direct activities
as well as oversight of State NPDES programs.
Table 8: Total Resources for NPDES Branch

FY1999
FY2000
FY2001
FY2002
FY2003

Number of FTEs
15.5
15.5
15.6
16.85
16.45

Of the resources shown in Table 84, five positions were used specifically on State oversight
responsibilities over the last 3 years. Two positions were for State Oversight Coordinator
positions within the Region. Three positions were devoted to maintaining and reviewing the
Permit Compliance System.
3A full-time equivalent position is equal to 2,087 hours of work per year.
4Table 8 represents the resources for the Region's NPDES branch only. This table does not
include the resources from other offices involved in enforcement, such as the Office of Regional Counsel
or the Office of Environmental Justice.
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Table 9: NPDES Branch Resources Used by Major Program Area
Activity
FY1999
FY2000
FY2001
FY2002
FY2003
Core Program - Major Facilities
3.0
2.0
1.35
1.6
1.5
Core Program - Minor Facilities
1.5
1.0
1.0
1.0
0.7
Combined Sewer Overflows
(CSOs) /Sanitary Sewer
Overflows (SSOs)5
1.5
4.0
5.0
6.0
6.0
Storm Water
1.0
2.0
3.0
3.0
3.0
Concentrated Animal Feeding
Operations
0.5
0.5
.25
.25
.25
State Oversight Responsibilities
3.0
2.0
2.0
2.0
2.0
Other Activities - Permit
Compliance System and Data
5.0
4.0
3.0
3.0
3.0
TOTAL
15.5
15.5
15.6
16.85
16.45
The NPDES enforcement branch also receives support from the immediate Office of the Director
and the Office of Watersheds. In addition to the staff resources Region 3 spent on NPDES
monitoring and enforcement, Region 3 stated that it committed $32,000 in travel funds in both
2003 and 2002, and $25,000 in both 2001 and 2000, for all travel related to compliance
monitoring and enforcement, of which State oversight is just a part.
5The resources for wet weather issues increased from 1999 to 2003 due to the Office of
Enforcement and Compliance Assurance making this area a national priority.
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Appendix E
Scope and Methodology
The purpose of our work was to obtain, review, and summarize the Federal oversight
requirements for the NPDES program and to identify what efforts Region 3 has taken to oversee
State programs. This work was not an audit in accordance with generally accepted Government
auditing standards. We did not complete this work with the intent of providing an independent
assessment of the performance of a Government organization or activity, as required by
generally accepted Government auditing standards. We performed our work from June 17, 2004,
through September 17, 2004.
Our scope was Region 3 and its five States-Delaware, Maryland, Pennsylvania, Virginia, and
West Virginia, plus the District of Columbia. We focused only on the monitoring and
enforcement aspects of the NPDES program; we did not include permit writing. We focused on
the fiscal year 2003-2004 timeframe and limited our review to industrial and municipal, or
traditional, point sources and did not include wet weather permittees, general NPDES permit
facilities, and construction site permits.
To complete our work, we reviewed the Clean Water Act as well as the relevant regulations
pertaining to oversight found in 40 CFR Parts 35 and 123. We interviewed Region 3 managers
and staff in the Water Protection Division's Office of Compliance and Enforcement. We also
obtained relevant documents from Region 3 staff, including national oversight guidance,
Memorandums of Agreement, and Section 106/Performance Partnership grant work plans for the
States of Delaware, Maryland, Pennsylvania, Virginia, and West Virginia.
We relied on data provided by Region 3 officials from EPA's Permit Compliance System
database. We did not independently verify the accuracy of the data.
We also interviewed officials in EPA's Office of Enforcement and Compliance Assurance in
Headquarters to identify any expectations that the office had of Region 3 in conducting
oversight.
We provided EPA Region 3 an opportunity to review and comment on this review before
issuance. Based on their comments we made revisions to the text of the review, as well as some
of the statistical data on inspections and enforcement actions. In discussing the response with
the Region, we identified several reasons for differences between the statistics in our draft
review and those Region 3 provided in response to the draft. First, the Region included
inspections and enforcement actions for Pennsylvania and West Virginia that are not included in
the Permit Compliance System. For this review, we only used the data in the system, which is
what EPA uses to report accomplishments. Second, the Region included enforcement actions for
violations of general permits and non-permitted sources. Since these were not within the scope
of our review, we did not include these actions. Third, the data was obtained from the Permit
17

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Compliance System on different dates and reflected more current information the States
provided. We updated the tables to include the more current statistics.
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Region 3's Response
Appendix F
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
SUBJECT: Region III Comments on "Review of EPA Region Ill's
Oversight of State National Pollutant Discharge
Elimination System Permit Programs "
FROM:	Donald S. Welsh, Regional Administrator
Region III
TO:	Nikki L. Tinsley, Inspector General
Office of the Inspector General
I would like to thank you for the opportunity to review and comment on your report "Review of
EPA Region Ill's Oversight of State National Pollutant Discharge Elimination System Permit Programs
The enclosed comments focus on three overarching issues that we believe need clarification.
Additionally, specific suggestions are made for changes to the
five sections of the report that would provide for a more complete understanding of Region Ill's oversight
program. We request your consideration of these points in the final report of this review and any
subsequent phases of your review of the Region III NPDES program. The
three overarching areas are:
The Changing NPDES Program - The NPDES program has changed dramatically over the last
decade to address significant environmental problems that are affecting water quality. The
review should reflect these changing conditions.
Our Oversight Philosophy - Region III implements a multi-faceted state oversight process that
continually ensures that states are implementing the program appropriately and environmental
results are achieved. The review should give a fuller picture of this program.
NPDES National Leadership - By adapting to the changing program and practicing a continual
process of oversight driven by outcomes, Region III has played a national leadership role.
We again welcome the Inspector General's review as a means to promote continuous
improvement in the delivery of EPA and state NPDES programs. If you or your staff have any questions,
please do not hesitate to contact me, or Jon Capacasa, Director, Water Protection Division, at (215) 814 -
5422.
Enclosure
Original Signed by Donald S. Welsh on October 20, 2004
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Region III Comments on: "Review of EPA Region Ill's Oversight of State
National Pollutant Discharge Elimination System Permit Programs"
I. The Changing NPDES Program
Major Points:
The NPDES program is not static and changes to address the environmental
priorities of today.
•	Municipal and Industrial Point Sources have been and continue to be successfully
addressed by the permit and compliance program. The most significant
environmental challenges of today are from wet weather sources. This is an ever-
growing universe of sources that pose a special permitting and compliance
oversight challenge.
•	Useful state and Federal program evaluation shouldfocus on environmental
outcomes and will require modernization of the Permit Compliance System (PCS)
and revision to key guidance documents
The goal of the NPDES Program is to ensure that dischargers of pollutants into waters of
the United States do not interfere with the designated uses of waters. As the major source of
pollutants change so do the emphases of the program. Over the last decade, the NPDES program
has changed dramatically to address our new significant environmental problems.
In the early history of the NPDES program, the most significant sources of pollutants
were industrial and municipal points sources, basically, those facilities that discharge waste
water from a treatment plant. The program focused its attention on these sources and both the
permitting and compliance programs were successful in securing major reductions in pollutant
loadings from these traditional point sources. However, even after significant reductions at point
sources and continuing progress, EPA realized that more would need to be done to meet Water
Quality Standards.
In examining the origins of current water impairments, it became apparent that in order to
fully address the sources of major pollution, the NPDES program would have to evolve as the
sources were changing. These new sources are often sporadic and the product of wet weather
events, and therefore, they did not fit into the traditional NPDES paradigm. The program shifted
its emphasis in the early 1990s to start to address these pollutant sources and they are now cited
as national priorities for the NPDES program. These include:
Combined Sewer Overflows are discharges from sewage collection systems that
collect both rain water and sanitary sewage in the same pipe. During rain events,
these systems become surcharged and discharge, adversely affecting water quality
and posing a threat to public health. EPA is implementing a combined permitting
and enforcement strategy to address this problem. Region III has the second
highest number of these communities in the nation, 224 communities and
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solutions will continue to require huge investments by municipalities throughout
the nation, and a commensurate investment by the Region and states.
Sanitary Sewer Overflows are discharges of raw sewage and industrial waste
from Separate Sewer systems into our waters. As our collection system
infrastructure becomes older and communities continue to grow, the systems
become surcharged due to infiltration of water into the system and increased
inflow to the system from new housing and industry. These overflow events pose
a threat to public health and the environment. There are literally thousands of
sanitary systems in Region III, and the number that are overflowing are unknown.
To identify and address these require a substantial investment by state and Federal
compliance staff.
Municipal Separate Stormwater Systems. Every time it rains, pollutants (oil,
grease, heavy metals, trash) and pathogens are washed into our waters from storm
sewer systems. EPA and the states began implementing an extensive permitting
and compliance program in the early 1990s to minimize these discharges and
ensure that water quality is protected. There are over a 1000 MS4s that are
regulated in Region III.
Concentrated Animal Feeding Operations are one of the leading causes of
water impairment in Region III, particularly for the Chesapeake Bay. Animal
waste carried by rainwater runoff from large scale agricultural operations are
regulated under the CAFO NPDES permitting program. This program represents
a difficult and complicated permitting and compliance challenge.
Industrial and Construction Stormwater activities are a leading cause of water
impairment in Region III. Stormwater runoff from these activities carry large
amounts of sediment and pollutants into our waters. These activities are regulated
under the Industrial and Construction Stormwater permitting program and pose a
significant compliance challenge due to the nature and number of sources.
Permits issued to these sources, whether individual or general permits, do not normally
fall within the traditional major or minor source category (with the exception of POTWs with
CSO systems and MS4 Phase I facilities) upon which many previous guidance documents were
crafted. However, these sources are an ever-increasing universe. In fact, in Region III, these
classes of permittees represent the overwhelming majority of permits issued, as can be seen from
the table below.
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NPDES Permitted Universe

DC
DE
MD
PA
VA
WV
Total
Majors*
4
21
94
384
149
98
750
Minors*
11
35
488
4146
1156
913
6749
General Permittees
0
0
1611
1979
18
2094
5702
Industrial Storm
Water Permittees
9
0
146
2155
63
39
2412
MS4 Permittees*
0
3
60
923
60
40
1086
Estimated Ongoing
Construction Sites
n/a
1190
2000
2500
n/a
1000
6690
Total
24
1249
4399
12087
1446
4184
23389
As the permitted universe has changed, so has the emphasis of the compliance and state
oversight program. Previously, the Region III compliance program was principally concerned
with major, and occasionally minor industrial and municipal point sources. Within the last
decade, and particularly during the last five years (when Wet Weather became a national
priority), Region III shifted its compliance and enforcement resources to address the compliance
challenges posed by these sources. Region III has actively encouraged the states to make a
similar shift in their resources and programs. Region III and the states were able to make this
shift in resource deployment based upon our confidence in the traditional Discharge Monitoring
Report (DMR)-driven compliance program's ability to detect problems at major sources.
From an outcomes standpoint, we have found that the significant non-compliance
(SNC) rate has remained stable and there has been an increase in environmentally beneficial
enforcement cases. There has been some difficulty in tracking these improvements given that
guidance, reporting requirements, and data systems established previously concerned themselves
primarily with major and minor sources. However, with the modernization of PCS and revisions
to some key guidance documents, both of which are currently ongoing at the national level, the
ability to accurately capture the effectiveness of the program and its oversight will improve.
II. Our Oversight Philosophy
Major Points:
•	Region Ill's state oversight program relies on multiple tools not limited to PCS
reporting or grants oversight.
•	Strong oversight of states 'permit issuance is the underpinning of an effective
compliance and enforcement program. Region III has one of the best programs
in the nation.
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• Our oversight program is driven by the National and Regional Strategic Plans
and is environmental results driven.
Region III maintains an aggressive oversight program that emphasizes the quality and
timeliness of permitting as well as timely and appropriate enforcement. Region III state
oversight program relies on an array of tools which go beyond the grant oversight and case-by-
case work described in the review. Our approach involves continual evaluation and correction.
We place emphasis on building capacity and addressing deficiencies in areas of regional and
national priority, as identified in yearly program guidance and the national and regional strategic
plans. Major elements of oversight program include:
The EPA National and Regional Strategic Plans and National Program
Guidance provide the central planning and implementation frameworks for the
water programs. These are the most encompassing statements of our objectives
for program implementation and state oversight and establish key measures of
progress and reporting requirements. Region III has worked hard to engage the
states in the development of the national and regional strategic plan. Together,
Region III and its states establish targets on a yearly basis in order to ensure that
national and regional strategic plan objectives are met.
CWA 106 Grants, while an important resource for the states in the
implementation of the water programs (e.g., Standards, Monitoring, Permitting,
and Compliance), typically fund in the range of 25% to 33% of the state's efforts.
Because of this, states have a great deal of latitude in developing annual work
plans submitted to EPA, and can choose to develop a grant work plan that
addresses elements of the overall program. Region III utilizes other avenues to
supplement grant reporting, such as MOUs and letters of agreement. The
Strategic Planning targets and measures as noted above constitute the most
inclusive statement of program commitments and oversight expectations.
Permit Reviews are a prerequisite to a credible compliance program. Region III
utilizes a diverse array of tools to ensure that permits are timely issued, protect
water quality and are enforceable. Utilizing criteria such as permit expiration,
environmental importance, national and regional program priorities, and
identified state program weaknesses, Region III reviews a large number of
permits each year in detail. For all major permits, the Region requests that the
states complete checklists to ensure that the permits are complete and protective.
Coordination occurs between permitting and enforcement staff to identify
particular areas of concern based on other oversight activities. A Permit Tracking
System is also maintained as a key tool to analyze and track reoccurring issues
and propose systemic solutions.
The Permit Compliance System is an important planning, tracking and oversight
tool. The Region expends significant effort in ensuring that the required data is
entered completely and timely. Regular system checks and audits are performed
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and deficiencies are brought to the states attention . Previous data concerns have
been addressed by withholding 106 grant money. Using Sector Indexing Projects,
ongoing Echo and Watch List Reviews, and quality checks performed during our
investigations and enforcement actions, we are also assured that the compliance
data is accurate.
Timely and Appropriate Enforcement Action by the states is ensured through
review and discussion of the quarterly Watch List (Quarter Non-Compliance
Report). During these discussions with the states, the underlying data in the
system is verified to ensure that it is accurate, the compliance history of the
source is discussed, and consensus is reached on the appropriate enforcement
response. Region III continually monitors progress in implementing the agreed
upon enforcement response and assists the state in accomplishing the goal of
compliance if necessary.
Federal Inspections are one of the most critical and useful tools in conducting
meaningful state oversight. Inspections are targeted to address regional and
national environmental and programmatic priorities. While a goal of these
inspections is to detect non-compliance, they are also used to conduct an ongoing
evaluation of the state permit and compliance program. Issues examined include
program implementation, data quality, inspection quality, and permit quality.
When a pattern of concern is identified, actions are taken to address concerns.
Direct Federal Enforcement is also one of the most critical elements in state
oversight. While we prefer that states take the lead or work with us as partners in
formal enforcement, EPA has regularly initiated direct enforcement in delegated
programs. Reason for direct enforcement include: when a state requests EPA
action; EPA is better positioned to address jurisdictional, legal, or technical
issues; issues of national precedence are involved; and/or lack of timely or
appropriate action by the state. Consultations conducted with the delegated states
in advance of formal enforcement provide an opportunity for EPA to clarify
expectations and polices that they can incorporate in their program.
The Consultative Process is a cornerstone of our compliance oversight program.
During Quarterly Conferences and ongoing discussions with the state, a full range
of issues are explored and documented. These include not only SNC, but
progress in implementing agreed upon strategies and work plans, the status of
ongoing cases, and progress in addressing citizen complaints. These discussions
provide a holistic picture of the health and capability of the state program.
Program Evaluations are another aspect of our evaluation process. In the past
year alone, we have completed a number of programmatic reviews which are
highlighted later.
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III. NPDES National Leadership
Major Points:
•	Region III has led the way nationally in measures of NPDES program
effectiveness. It also uses innovative tools for state oversight which are national
models and constructively engages the states in meeting national and regional
priorities.
•	Region Ill's program is outcome centered and has delivered a number of notable
achievements.
As discussed above, by adapting to a changing program and implementing our
philosophy of a continuous evaluation and improvement using an array of tools, Region III and
its states are implementing an NPDES program that is driven by the national and regional
strategic plan. Our shared program has resulted in numerous notable accomplishments that
include in part:
Lowest National Major Permit Backlogs - Timely issued and effective permits
are the cornerstone of an environmentally driven NPDES program. Region III
has worked with its states to ensure that our backlog rate for majors is the lowest
in the nation at 7.2%. The national goal is 10% and other Regions range from
10.9%) to 34.7%). For minor permits, Region III performance is also notable with
13.8%. Only Region IV performs better at 11.9%. The remaining Regions have
minor backlogs between 15%> and 48%>.
Standardized Permit Checklists - Region III developed a permit checklist for
state use in order to effectively oversee the quality of state issued permits. This
has been held up as a national model adopted by other Regions that helps
maintain consistency in permit issuance.
Low Significant Non-Compliance Rate - Region III continues to have one of the
lowest Significant Noncompliance (SNC) Rates in the country at 13%> in
comparison to the national average of 15%>. This is an indication of the
effectiveness of Region III and the states to identify and resolve violations at the
traditional major sources.
Cases of National Significance - Region III has completed three of the top Clean
Water Act judicial actions in the country (Smithfield, Allegheny Ludlum, and
Dean Dairy). These significant penalty cases were the result of our oversight
activity of the states. These cases sent a clear message to the states and the
regulated community concerning our compliance expectations.
Joint Federal/State Cases - Region III has settled or is in the process of settling
some of the largest most complicated municipal cases in the country. These cases
have built state capacity, have had or will have significant environmental results,
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and have educated the state regarding federal compliance expectations and
policies. These cases include, in part, Baltimore City (settled), WASA CSO
(complaint filed and negotiations ongoing), Baltimore County, WSSC,
ALCOSAN, and Reading. Region III, PaDEP, and Allegheny County have also
worked together to implement an initiative in Allegheny County to ensure that
83 communities enter in compliance orders with the state and county to address
sewer overflows.
Program Improvement Initiatives - Based upon observed program deficiencies
or identified obstacles to achieving national goals, the Region's NPDES program
has initiated a number of efforts to improve the state and Federal program. Work
in these areas include:
Integrated CSO Team - A division-wide team was formed to determine
better means to accomplish national and regional CSO goals through
effective state/EPA interaction. This group has prepared a strategy and
evaluated aspects of the state/Federal permitting and compliance
programs. They have put into place and are putting into place activities to
enhance compliance through training, state/Federal conferences,
inspection, case development, permit review, etc. Areas include:
Statistically Valid Non-Compliance Rate Study for Nine Minimum
Controls, Implementation Status Analysis, Phase II Permitting Analysis,
and Watershed targeting.
-	Divisional Stormwater Strategy - The division is updating its strategy in
response to high non-compliance rates and resource shortfalls at the state
level. Key areas of effort include: encouragement of low impact
development, permit improvement, targeting specific sectors for
inspection and enforcement work; joint state/Federal targeting and
enforcement in priority watersheds. A key element has been encouraging
states to reinvest inspection resources from major sources where there are
no compliance concerns to stormwater sources.
-	Program Evaluations - The Region has conducted and completed the
following NPDES program evaluations in FY 2004 - In-depth State
Program Profiles for Maryland, Virginia, West Virginia, Delaware, and
Pennsylvania. Areas of program enhancement were identified and a
management plan endorsed by the state and Region III were developed
and are being implemented. A study on Maryland Inspection
effectiveness was conducted utilizing joint oversight inspections at three
facilities. An ongoing multi-media compliance and enforcement
evaluation is occurring for major MDE compliance programs. This is
scheduled to be completed by the end of the calendar year.
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VI. Comments on "Review of EPA Region 3's Oversight of State National Pollutant
Discharge Elimination System Permit Programs"
Our specific comments on the draft review are presented below. We will address each
section with general comments and make recommendations on how the review might better
capture the state oversight program that Region III is implementing.
Section "At A Glance"
General Comments:
The review does not capture the full universe of sources that the states and Region III are
responsible for implementing. The review also focuses on small elements of the Region III
oversight program. This leads to an incomplete understanding of the program and how it is
implemented in the Region.
Specific Recommendations:
1.	Question 2 - The response to Question 2 should identify that there are almost 24,000
permitted sources in Region III. Of those sources 750 are major, 6749 are minor, and
over 16,000 are under General Permits.
2.	Question 3 - The number of inspections and enforcement actions identified in this
response is only a subset of those that the state and EPA take. The response should
identify the total number of inspections, including compliance inspections, and the total
number of enforcement actions. During the time period in question - over 17,700
inspections were conducted of which 13,500 where reconnaissance inspections. More
than 4,400 enforcement actions were taken.
3.	Question 4 - The following language is recommended: It is the Project Officer's
responsibility to coordinate technical reviews of work products under grants and
document the receipt and acceptance of major reports in grant files. The Technical
Contact is responsible for maintaining the submitted reports.
4.	Question 5 - The response Question 5 should state that the Region employs a
comprehensive state oversight program that is not limited to monitoring Grant work plans
or actions taken against major sources.
Section 1 What are the statutory and regulatory requirements that EPA must follow for
conducting oversight of State NPDES programs?
General Comments:
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State oversight is discussed in policy and guidance, and key program measures are
incorporated into the Agency Strategic Plan. The discussion in regulation is primarily for
program authorization which discusses what types of procedures and programs a state needs to
have in place to be authorized to operate an NPDES program.
Specific Recommendations:
None
Section 2 How many major and minor NPDES permitted sources are in Region 3 States?
General Comments:
The text presents a very limited view of the program. Wet Weather Sources are a leading cause
of impairment and are a national and regional priority. This has been the major area of
emphasis for the compliance program during the last five years. We would recommend that you
consider incorporating our discussion and updated statistics on the "Changing NPDES Program".
Additionally, the definition of major source is incorrect.
Specific Recommendations:
1. The following chart should replace the one in this section:
Table 1. NPDES Permitted Universe
Type of Source
DC
DE
MD
PA
VA
WV
Total
Majors*
4
21
94
384
149
98
750
Minors*
11
35
488
4146
1156
913
6749
General Permittees
0
0
1611
1979
18
2094
5702
Industrial Storm
water Permittees
9
0
146
2155
63
39
2412
MS4 Permittees*
0
3
60
923
60
40
1086
Estimated Ongoing
Construction Sites
n/a
1190
2000
2500
n/a
1000
6690
Total
24
1249
4399
12087
1446
4184
23389
2. Additionally, the definition of major should be rewritten to conform to the following:
A major municipal facility is defined by flow. All municipal wastewater treatment
plants with effluent flows greater than 1 MGD should be classified as major municipal
NPDES permittees. A major industrial facility is defined through a ranking scheme
based on several factors: These factors include toxic pollutant potential, discharge flow
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volume, receiving stream flow volume, conventional pollutant loadings, potential public
health impact (e.g., proximity to downstream drinking water intakes), water quality
factors, and proximity to near coastal waters. Generally, if a facility receives a ranking
greater than 80 points it is designated a major industrial NPDES permittee. Certain
classes of permittees are automatically designated as majors. They include nuclear
power plants and municipal separate storm sewer systems serving populations greater
than 100,000 individuals.
Section 3 How many inspections and enforcement actions were taken?
General Comments:
The numbers reflected in the draft report charts reflect traditional NPDES program
activity only. The current text presents a very limited view of the program. However, as
discussed, Wet Weather Sources are a leading cause of impairment and are a national and
regional priority. For the last five years, our efforts have been directed by the Strategic Plan and
national and regional priorities. It is therefore important to capture this universe.
With respect to the inspection chart in the text, only certain classes of inspections have
been used, even though an effective program uses a full range of inspection types to accomplish
its goal of improved compliance. In responding to citizen complaints, gathering information on
whether facilities should be the target of detailed investigation, maintaining a regular compliance
presence, and just assessing conditions at facilities, many states use reconnaissance inspections.
This allows them to target future investigations for a greater return on the investment. This
information should be used.
With respect to enforcement actions, it appears that only information in PCS was used.
We have assembled a more complete picture of actual activity by examining detailed reports
submitted to us by the states.
Specific Recommendations:
1. The following two charts should replace those currently in the report -
Table 2: Inspections Conducted in Fiscal Years 2003-2004
Type of
Source
Inspection type
EPA
DE
MI)2
PA34
VA
WV4
Total

Compliance1
180
40
416
256
314
96
1302
Majors"
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Reconnaissance

459

947
43
75
1524
Minors/GP
Compliance
356
24
793
30
1115
292
2610
Reconnaissance

334

5143
350
6478
12305
Total

536
857
1209
6376
1822
6941
17741
1	Compliance = CSIs, CEIs, SSO, CSO, storm water etc. (i.e, all types of inspections specific to determining compliance
with NPDES program requirements.
2	MD reconnaissance inspection numbers are not available.
3.	Data from 10/01/02-3/31/04
4	PA & WV data augmented by hard copy data.
Table 3: Enforcement Actions Taken in Fiscal Years 2003 - 2004
PCS and Hard Copy Data
Type of Source
EPA1
DE1
MD1
PA
VA
WV
Total
Majors*
48
3
13
147
294
12
517
Minors/GP*
99
0
47
1122
1499
1165
3932
Total
147
3
60
1269
1793
1177
4449
1	Totals do not contain informal actions (Notices of Violation, etc.), only formal action counted.
Section 4 What procedures does Region 3 use to ensure that States comply with grant
work plans6?
General Comments:
Region III acknowledges the need for continual improvement for the standardization of
file documentation with regard to commitments made by states under grants. A special Region
III Workgroup has been formed to address Grant File structures and documentation. The
Division has also initiated a major effort over the past two years to improve its central filing
systems and records management. With respect to making decisions without relying on
submitted reports, there is an implication that the Region does not base its decisions on
information. This is not accurate. Some of the required submissions under grants are for the
purpose of documenting that the work has been accomplished by the state, while others may
contain more technical information that is necessary to manage the program. When decisions are
6EPA uses grants to fund State NPDES programs.
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made, the Region relies not only on grant reports, but also on information from many sources
including periodic conference calls, Watch List reports, PCS, inspection reports, etc.
With respect to review and documentation of work plan commitments, a statement is
made that it was unclear who has the responsibility for maintaining the reports the states were
required to submit, the Project Officer or the Technical Contact. It is the Project Officer's
responsibility to coordinate the technical review of work products, document their receipt and
acceptance in the grant files. It is the Technical Contact's responsibility to maintain the reports.
The Region will take steps to remind those involved of their responsibilities.
The report states that information that Region III required states to submit as specified in
the work plan varies from state to state. While this is true, the National Program Guidance is the
core document used by the national program and Regions to advise states of their reporting
requirements, not grant agreements. Grant work plans vary because states have the
responsibility to prepare requests to the Agency for funding in line with National Program
Guidance. Since federal funding only partially supports state programs, and the needs and
priority interests vary state to state, they have the discretion to apply for elements of their
program not the entire work effort. EPA in its role provides grant guidance and oversees state
grants to ensure the annual work plans are fulfilled. The primary purpose of the grant reports is
to provide the information necessary for EPA to determine that the work plan has been
completed, to justify final payments, and closure of grants.
The report also discusses State Authorization Memorandum of Agreement/
Understanding (MOA/MOU). The report implies again that the varying requirements in these
agreements is somehow a deficiency. It is important to understand that these are Authorization
Agreements and not annual work plans. They essentially lay out how the state and EPA are
going to fulfill the requirement specified in the authorization regulations. So while each is
different because there are many ways available to satisfy the same requirement, the underlying
requirements remain the same in each of the agreements. Also, as different forms of supplying
the required information have developed (e.g., national databases), the Region has accepted
those in lieu of the existing MOA requirements. Region III agrees that the delegation
agreements could benefit from updating. However, in our view these have not been
impediments to securing the necessary information or commitments from states under the
program, and updates would require a substantial level of effort on behalf of the states and EPA.
Even during such an updating process, the resultant agreements would likely be different due to
the different state needs, organizations, and means of completing work.
Specific Recommendations:
The sections should be edited to reflect the discussion above.
Section 5. What procedures does Region 3 use to ensure that States are monitoring
permits and taking timely enforcement actions?
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General Comments:
This section captures only a small portion of the Region III oversight program. Region
III maintains an aggressive oversight program that incorporates extensive reviews of permit
quality and timeliness as well as compliance and enforcement. Region III does not rely on a
singular tool for oversight but instead takes a systematic approach that involves continual
evaluation and action based upon a series of tools. The major tools of the oversight program
have included: National Program Guidance/Regional and National/Regional Strategic Plan;
106 Grants and Workplans; Permit Reviews and Checklists; The Permit Compliance
System; Timely and Appropriate Enforcement Action; Federal Inspections; Federal
Enforcement; The Consultative Process; and Special Program Evaluations such as the
Permitting for Results Project. Thus, it is incorrect to say that the State Coordinators rely
primarily on state-submitted data in PCS to determine if the states are properly running the
NPDES program. They rely on all information that has been made available through our
oversight process. Additionally, it is also not accurate to state that the Region has focused most
of its efforts on major sources. This is demonstrated in the report's Appendix D, detailing
NPDES Branch FTE usage, and in our previous discussion on the national and regional Wet
Weather priority.
Specific Recommendations:
The sections should be edited to reflect the discussion above.
Section Appendix A
No Comment
Section Appendix B
No Comment
Section Appendix C
General Comments:
This Appendix should be edited to incorporate the revised inspection and enforcement
action data that captures the full universe of NPDES sources and compliance activities.
Specific Comments
1. The existing table 4 should be replaced by the following:
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Table 4: Inspections Conducted by Region III
October 1, 2002 - August 30, 2004
Type of Source
DC
DE1
MI)'
PA
VA
WV
Total
Majors*
8
6
78
70
8
10
180
Minors/GP*
14
11
54
127
146
4
356
Total
22
17
132
197
154
14
536
1	Totals do not contain informal actions (Notices of Violation, etc.), only formal action counted.
2.	The Region does not use as a targeting criteria those sources that the state does not
inspect. The Region employees different targeting approaches depending on the purpose
of the effort, for example:
Oversight Inspections - Targeting is directed to sources that have been recently
inspected in order to identify the effectiveness of the state compliance program.
Rule Penetration/Effectiveness - Targeting is accomplished by a
random/representative selection of facilities in the sector of concern. The purpose
of this effort is to identify program implementation and compliance issues that
need addressing.
Environmentally Driven - The purpose of these efforts are to identify and address
sources of water impairment. Targeting criteria in this case will be based upon
the nature of the impairment and the discharge characteristics of the target
sources.
Compliance Driven - The purpose of these efforts are to address identified
compliance problems that have been revealed through data review, citizen
complaints, and state oversight. In this case, the primary criteria is the
compliance history.
National Priorities - These are inspections that are used to support national
priorities. Generally, the Region attempts to overlay all the above criteria in
identifying targets for inspection.
3.	Table 5 and subsequent text should be replace by the following:
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Table 5: Inspections Conducted by States
Type of
Source
Inspection type
DE
MD2
PA34
VA
WV4
Total
Majors*
Compliance1
40
416
256
314
96
1122
Reconnaissance
459

947
43
75
1524
Minors/GP
Compliance
24
793
30
1115
292
2254
Reconnaissance
334

5143
350
6478
12305
Total

857
1209
6376
1822
6941
17205
1	Compliance = CSIs, CEIs, SSO, CSO, storm water etc. (i.e, all types of detailed inspections specific to determining
compliance with NPDES program requirements.
2	MD reconnaissance inspection numbers are not available
3	Data between 10/01/02-3/31 /04.
4	PA & WV data augmented by hard copy data.
The inspections listed in Table 5 include Compliance inspections and Reconnaissance
inspections. Both types of inspections have an important role in an effective compliance
program. Compliance inspections include Compliance Evaluation Inspections, Compliance
Sampling Inspections, SSO, CSO and stormwater inspections. The purpose of these types of
inspections is to make a facility compliance determination with respect to either the entire permit
or with targeted aspects of the permit. Reconnaissance Inspections are less detailed evaluations.
They are particularly useful in responding to citizen complaints, gathering information on
whether facilities should be the target of detailed investigation, maintaining a regular compliance
presence, and just assessing conditions at facilities. This allows the state to target future
investigations for a greater return on the investment.
4. Tables 6 and 7 and subsequent text should be replace by the following
Table 6: Enforcement Actions Taken by Region III
October 1, 2002 - August 30, 2004
Type of Source
DC1
DE1
MD1
PA
VA
WV
Total
Majors*
3
3
4
33
2
3
48
Minors/GP*
4
4
1
40
44
6
99
Total
7
7
5
73
46
9
147
1	Totals do not contain informal actions (Notices of Violation, etc.), only formal action counted.
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Table 7: Enforcement Actions Taken by States
PCS and Hard Copy Data
Type of Source
DE1
MI)'
PA
VA
WV
Total
Majors*
3
13
147
294
12
469
Minors/GP*
0
47
1122
1499
1165
3833
Total
3
60
1269
1793
1177
4302
1	Totals do not contain informal actions (Notices of Violation, etc.), only formal action counted.
Section Appendix D
General Comments:
This section should be brought into alignment with the preceding discussions. Generally,
the description of Region III oversight activities has to be expanded to capture the full extent of
our efforts in this area.
Specific Recommendations:
1.	Region III performs numerous oversight activities designed to ensure that the states are
implementing the NPDES program effectively and efficiently. These tools include: National
Program Guidance/Regional and National/Regional Strategic Plan; 106 Grants and
Workplans; Permit Reviews and Checklists; The Permit Compliance System; Timely and
Appropriate Enforcement Action; Federal Inspections; Federal Enforcement; The
Consultative Process; and Special Program Evaluations such as the Permitting for Results
Project.
2.	Region III relies on PCS as a part of its oversight process. While PCS is limited in its
ability to support the new national Wet Weather priorities, it is a useful tool to conduct
oversight. Region III reviews the data States enter into the Permit Compliance System
for completeness. The states are responsible for ensuring data accuracy, however,
nationally and Regionally, through the Sector Indexing Project, the Watch List, and
ongoing inspection and enforcement activity, data accuracy is ensured.
3.	The discussion on the Quarterly calls should be expanded to include the other oversight
functions that occur. In addition to discussion of the Watch List, the calls are used for
tracking progress in implementing agreed upon strategies and work plans, the status of
ongoing cases, and progress in addressing citizen complaints, among other things. These
discussions provide a holistic picture of the health and capability of the state program.
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4.	With respect to the review of the Maryland and Delaware state programs, the reports
were completed and the results discussed with the states. They were not, however,
finalized. This decisions was based on the introduction of national program evaluation
programs and guidelines being developed. Region III supports a consistent national
program evaluation frame work. Region III also suggests the section dealing with the
state profiles for the Permitting for Environmental Results and the State Review
Framework should be moved into this section. The Regions have a substantial role in
implementing this program.
5.	With respect to Regional Resources, Region III staffed the NPDES Enforcement Branch
with approximately 16 full-time equivalent positions to execute its compliance and
enforcement program. The purpose of Table 8 and Table 9 is to demonstrate how field
and data resources are deployed across the various NPDES enforcement areas. These
NPDES Branch enforcement FTE are supported by additional enforcement and
permitting FTE within the Water Protection Division, such as the immediate Office of the
Director and the Office of Watersheds.
6.	State oversight is not only conducted by the state coordinator and data management staff,
but by each of the enforcement and permitting staff through their implementation of
national and regional priorities as discussed previously.
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