EPA's Interim Significant Noncompliance Policy for Clean Water
Act Violations Associated with CSOs, SSOs, CAFOs, and Storm
Water Point Sources
U.S. Environmental Protection Agency
Office of Enforcement and Compliance Assurance
Office of Compliance
Washington, DC 20460
October 2007
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EPA's Interim Significant Noncompliance Policy for Clean Water Act Violations
Associated with CSOs, SSOs, CAFOs, and Storm Water Point Sources
( "Interim Wet Weather SNCPolicy")
I. Scope and Intent
This policy addresses significant noncompliance (SNC) violations associated with
combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), concentrated animal
feeding operations (CAFOs), and storm water point source discharges covered by the National
Pollutant Discharge Elimination System (NPDES) program under the Clean Water Act (CWA),
Since 1998, CSOs, SSOs, CAFOs, and storm water point sources have been EPA national
compliance and enforcement priorities and referred to as "wet weather" sources or "wet weather"
program areas. This policy is referred to below as the "Interim Wet Weather SNC Policy,"
although it applies to both wet weather and dry weather (i.e., not caused by a precipitation-
related event) violations. The intent is to provide EPA Regions, States, Indian Tribes and U.S.
territories with a framework to identify the most significant violations that rise to the priority
level for prompt follow-up action, in order to better manage the current NPDES program and to
improve accountability. The scope of this policy is limited to the universe of wet weather
sources selected by the NPDES authority for compliance evaluation, including inspections, file
reviews, and evaluation of self-monitoring and reporting results. This policy does not establish
compliance evaluation and enforcement commitments between EPA Headquarters and the
Regions, or between EPA Regions and the States. Regions and States should continue to utilize
existing documents to determine compliance evaluation targets and negotiate State-EPA
management agreements. EPA is issuing this as an interim policy in anticipation that it may need
to be revised after an initial implementation period.
II. Introduction
EPA, in consultation with States, developed the Permit Compliance System (PCS) as well
as the NPDES Enforcement Management System (EMS), which comprises several policies,
including the SNC Policy, to guide NPDES authorities in identifying and tracking significant
noncompliance and appropriate enforcement responses.1 When EPA's current, 1986 CWA
Significant Noncompliance Policy (SNC Policy) was issued, EPA and the States were focused on
addressing the most significant sources of water pollution at the time - the universe of large
municipal and industrial point sources regulated by the NPDES program, known as "major
facilities." (40 CFR §122.2) Tracking information that measures and evaluates compliance with
pollutant discharge limits and controls imposed on major facilities on a national scale is
important to EPA's efforts to ensure that such limits and controls are appropriate. In the last
1 See NPDES Enforcement Management System, (1986, revised in 1989). The SNC portion is contained in Chapter
VII, B., Part 2, Significant Noncompliance.
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twenty years, these efforts have resulted in significant pollutant controls and reductions from
traditional major facilities.
Since the SNC Policy was issued, state reports submitted under CWA Section 305(b) and
periodically compiled by EPA into the National Water Quality Inventory Report, indicate the
growing significance of water quality impairment due to pollutants associated with wet weather
sources. These sources include overflows from combined and sanitary sewer systems, storm
water runoff from industrial and municipal sectors, and discharges from CAFOs. CSOs and
SSOs can pose a significant threat to public health and the environment due to high
concentrations of bacteria from fecal contamination, as well as disease-causing pathogens.
Storm water runoff may include a variety of pollutants, such as sediment, oil and grease,
chemicals, nutrients, metals, and bacteria. Discharges from CAFOs often include nutrients,
organic matter pathogens, and trace metals. In an effort to supplement the 1986 SNC Policy to
reflect the evolution of the NPDES program and the need to address and track significant
noncompliance at these wet weather sources, EPA, in consultation with the States, developed this
Interim Wet Weather SNC Policy. This Interim Wet Weather SNC Policy supplements the 1986
SNC Policy for NPDES major facilities and is intended to reflect the importance of wet weather
sources in managing, evaluating, and reporting on the effectiveness of the national NPDES
compliance and enforcement program.
In developing this Interim Wet Weather SNC Policy, EPA recognizes that wet weather
point sources differ from traditional NPDES major facilities and that these differences will
influence both the manner in which SNC violations are defined, as well as in the approach the
NPDES authority takes to respond to SNC violations. Some of the more significant differences
include the following:
1. The universe of wet weather sources is far greater than the universe of NPDES
major facilities. The universe of certain wet weather sectors, particularly those
typically covered by general permits (such as construction storm water and
CAFOs), tend to receive less automatic review compared to major facilities
covered under individual NPDES permits.
2. While the vast majority of NPDES major facilities are continuous dischargers,
many wet weather sources are characterized by intermittent discharges.
3. Permit coverage for the construction storm water sector is often short-term, with
permit coverage often ending within a year.
4. Wet weather sources frequently are not subject to numeric effluent limits;
consequently, compliance determination for these sources relies heavily on site
inspections, supplemented by self-inspection and self-reporting requirements.
The statutory provisions and EPA regulations described in this document contain legally
binding requirements. However, this document is intended solely as advisory. This policy is not
a regulation, nor does it change or substitute for those provisions and regulations. Thus, it does
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not impose legally binding requirements on EPA, States, U.S. territories, Indian Tribes, or the
regulated community and it does not confer legal rights or impose legal obligations upon any
member of the public or the Agency. In the event of a conflict between the discussion in this
document and any statute or regulation, this document would not be controlling. This document
may be revised periodically without public notice to reflect changes in EPA policy.
III. Definitions
NPDES authority, the entity - EPA Region, State, U.S. territory, or Indian Tribe - authorized to
implement the NPDES program.
Significant noncompliance (SNC): those alleged violations where the NPDES authority, using its
enforcement discretion and applying best professional judgment and the criteria described in this
policy for the specific program area, has determined that the relevant criteria for SNC have been
met.
Discharge: When used without qualification, "discharge" means any addition of any pollutant or
combination of pollutants to waters of the United States from any point source. See 40 CFR
§122.2
Unauthorized discharge: a discharge that is not authorized by an NPDES permit or that is in
violation of an NPDES permit.
Significant unauthorized discharge: an unauthorized release of pollutants to a water of the
United States that has negatively impacted or has the potential to negatively impact human health
or the environment (see factors to consider in section IV.).
Overflow, any release, spill, or discharge of wastewater from or caused by a sewage collection
system, and not private laterals, to public or private property (including building backups)
whether or not it reaches waters of the United States.
Significant Overflow, any overflow (refer to above definition) that occurs in a high public use or
public access area, or otherwise may affect public health. This definition includes overflows
from manholes and other sources that reach waters of the United States, including significant
unauthorized discharges, and overflows and backups into basements, yards, parks, or any other
areas where people can come into direct contact with sewage, that are caused by conditions in the
sewage system.
Major milestones: significant actions or corrective measures that a permit or enforcement order
requires to be completed by a designated date. Major milestones may include, but are not limited
to, the actions and associated deadlines for the following: begin construction of corrective
measures, end construction of corrective measures, achieve final compliance, implement best
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management practices (BMPs), submit and implement a nutrient management plan (NMP), and
pay a penalty.
Formal Enforcement Action: an action that "requires actions to achieve compliance, specifies a
timetable, contains consequences for noncompliance that are independently enforceable without
having to prove the original alleged violation and subjects the person to adverse legal
consequences for noncompliance."2 For purposes of this policy, EPA's definition of formal
enforcement action is consistent with existing policy and includes: (1) unilateral administrative
order (with or without a penalty) or administrative order by consent (with or without a penalty);
and, (2) civil judicial consent decree or Court order.
Informal Action to Address Wet Weather SNC Violations: an action that does not meet EPA's
definition of formal enforcement action above and: 1) is in writing, 2) informs the permittee of
the violation(s), 3) identifies the actions necessary to achieve compliance, 4) specifies milestones
and a final date to achieve compliance, and 5) provides notification of the possibility of escalated
enforcement action if the violation is not corrected in a timely manner.
Resolved: a violation that no longer meets the SNC criteria.
Resolved Pending: the status of a violation that continues to meet SNC criteria, but is being
resolved in accordance with an enforcement order or other mechanism to achieve compliance.
Quarter: three consecutive months in accordance with the same schedule as the quarters defined
by the Quarterly Noncompliance Report (QNCR) in 40 C.F.R. 123.45(d), as follows:
January, February, March
April, May, June
July, August, September
October, November, December
Quarter Response Deadline: for purposes of timely SNC determination and follow-up response,
deadlines are the same as the date for completion of reports associated with the QNCR schedule
in 40 C.F.R.123.45(d). The deadlines are as follows:
Quarter Reporting Deadline
January, February, March May 31
April, May, June August 31
July, August, September November 30
October, November, December February 28
2 See NPDES Enforcement Management System, (1986, revised in 1989), Chapter 1, p. 24.
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First Quarter Response Deadline: the reporting deadline associated with the first quarter that the
SNC violation is identified.
Second Quarter Response Deadline: the reporting deadline associated with the second
consecutive quarter that a violation is in SNC,
Third Quarter Response Deadline: the reporting deadline associated with the third consecutive
quarter that a violation is in SNC.
IV. Factors to Determine Significant Unauthorized Discharge
NPDES authorities should evaluate whether a significant unauthorized discharge has
occurred based on impact to human health or the receiving water, condition or quality of the
receiving water, and any impairment of the actual and/or designated uses of the receiving water.
For example, factors to consider to determine if a significant unauthorized discharge has
occurred may include the following:
• the discharge has caused or contributed to an exceedance of any applicable water quality
standard;
• the discharge or overflow is not weather-related;
• the discharge has caused or contributed to a fish kill, fish advisory, or shellfish bed or
beach closing;
• the discharge impacts an area identified as being disproportionately impacted by
pollutants from multiple environmental pathways;
• the waterbody impacted by the discharge is:
1) a drinking water source, has drinking water intakes, or is in a source water protection
area;
2) a high quality habitat for aquatic organisms, fish, or wildlife;
3) a habitat for endangered species;
4) an Outstanding Natural Resource Water;
5) a waterfowl staging or nesting area;
6) used for shellfish harvesting;
7) used for primary or secondary contact recreation; and/or
8) a sensitive coastal area where habitat relies on adequate water quality to thrive.
V. SNC Process
"Traditional" NPDES point sources that have individual NPDES permits, are required to
periodically submit self-monitoring data in discharge monitoring reports (DMRs) which are
routinely screened for noncompliance problems, and a subset of facilities {i.e., major facilities)
are automatically screened for alleged SNC violations. In contrast, the wet weather point sources
that are frequently covered under NPDES general permits or are unpermitted, may not be
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required to submit DMRs, and most are not automatically evaluated for alleged SNC violations.
Some wet weather point sources are required to self-report (e.g., annual reports required from
CAFOs, spill reports required from sewer systems). However, most wet weather violations are
detected by information gathering techniques such as inspections, file reviews, CWA Section 308
requests, and responding to citizen complaints.
An NPDES "major facility" (40 CFR Part 122.2) that is also a wet weather point source
should continue to be screened for traditional SNC violations. Examples include large sewage
treatment facilities and any associated collection systems they own or operate and large industrial
facilities also required to have permits for storm water discharges. In addition, all wet weather
point sources (major facilities and non-major facilities, permitted and unpermitted) that are
reviewed for compliance status (e.g., via inspection or record review) are to be screened for
alleged SNC violations under this new policy. The four recommended steps in implementing
this Interim Wet Weather SNC Policy are:
1. Conduct compliance monitoring/evaluation activities and determine whether
an alleged violation occurred or was reported.
2. Determine SNC.
3. Identify and undertake a timely and appropriate response.
4. Document resolution of noncompliance.
The overall SNC process is illustrated in Figure 1. The timing of the SNC process (see
Figure 3) is based on the existing reporting procedures used to track traditional SNC. The time-
line begins in the first quarter that the NPDES authority is able to identify noncompliance. The
NPDES authority should determine SNC by the reporting deadline associated with that quarter.
Determining a violation is SNC by the reporting deadline places that facility in SNC for the
quarter when noncompliance was identified. The NPDES authority should initiate formal or
informal action against any facility with a SNC violation no later than the reporting deadline
associated with the third consecutive quarter that the identified facility is in SNC.
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Step 1.
Compliance monitoring
aviluation activities.
Were violations found
during compliance
activity?
No-
Document and stop
Yes
Step 2.
Does the violation rise to
the level of SNC?
No
Follow EMS procedures
for violation screening and
response.
Yes
Step 3.
_
ta
Does the SNC violation or
the facility's compliance
history indicate prompt,
formal enforcement?
Yes
Take Formal
Enforcement Action,
No
Informal action initiated -
Is timely compliance being
achieved? (e.g.,
milestones met)
No
Yes
BUI
!w
Take Formal
Enforcement Action
Step 4.
Document resolution
of noncompliance. ^
Hi
Document the Resolved Status.
Figure 1. SNC Process
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1. Conduct Compliance Monitoring/Evaluation Activities and Determine Whether a
Potential Violation Exists
The first quarter of SNC may be triggered by the date the site is inspected, the final
inspection report is received, a self-monitoring report or a record is reviewed, or other
compliance monitoring activity is completed. In situations where the NPDES authority
determines that a follow-up inspection at a facility would be useful, or where the evaluation
would be aided by additional sampling, information gathering, and further analysis (e.g., receipt
of additional information requested via Section 308 of the CWA), the first quarter of SNC is
triggered by the date when adequate information becomes available to the NPDES authority. The
two examples in Figure 2 below provide guidance for timely SNC determination. Example #1 is
where adequate information on an alleged violation(s) exists at the time of initial compliance
monitoring activity, inspection, or record review. Example #2 shows an alleged violation
requiring further information or analysis, so Step 1 occurs in the quarter when that additional
information (e.g., sampling analysis results) is received or analysis is completed.
Figure 2, Examples of Timing for SNC Determination
1. Conduct Compliance Evaluation Activity
2. Determine SNC
Example #1
Conduct inspection (no follow-up information or analysis required)
5/31/07
between l/l/07and 3/31/07
Conduct inspection
Receive additional information (e.g., sampling
results) and complete investigative analysis
8/31/07
W
between 1/1/07 and
3/31/07
6/1/07
NPDES authorities should continue to implement targeting strategies and conduct routine
compliance monitoring and evaluation activities (e.g., inspections, file reviews, review of self-
reports) to detect CSO, SSO, CAFO, and storm water violations. The NPDES authority should
conduct compliance monitoring activities consistent with guidance provided in the NPDES
Compliance Monitoring Strategy [under development]. Once targets are selected, NPDES
authorities should evaluate all available compliance information such as self-monitoring reports,
inspection reports, sampling results, contents of permit file, and citizen complaints. The NPDES
authority should follow its standard procedures for reporting and tracking violations discovered
during compliance evaluation activities. It should also follow its standard procedures regarding
informing facilities of their noncompliance status.
More information may be helpful before making a SNC determination. This could be
accomplished by the NPDES authority issuing an information request letter under Section 308 of
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the CWA or a State's information gathering authority. For example, during a construction storm
water inspection, the inspector may be unable to determine the responsible party, owner or
operator, or find that information required to be on site is missing. The NPDES authority may
decide to issue a follow-up information request letter to document whether or not the
construction company obtained a permit, developed a storm water pollution prevention plan
(SWPPP), and/or conducted required site inspections.
Another example is when determining multiple or significant CSOs or SSOs, the NPDES
authority may need to gather information such as spill rate and beach closures, or information
regarding systemic issues with the condition of the collection system, including examining the
operation and maintenance procedures. For evaluation of a CAFO or a construction site, whether
a significant unauthorized discharge occurred may depend on review of rainfall records and
other factors such as overall conditions at the facility and whether required best management
practices were properly implemented and maintained.
2. Determine SNC
In most cases, the NPDES authority should determine whether a violation identified in
Step 1 rises to the level of SNC by the reporting deadline associated with the quarter in which the
violation occurred. In the situations when more information is necessary, the deadline for
determining SNC is the reporting deadline associated with the quarter when the information was
obtained. Figure 2 above presents two examples - example #1 where all information necessary
was obtained at the inspection, and example #2 where the information became available at a later
date. This policy does not directly impact EPA's quarterly noncompliance reporting (QNCR)
requirements per 40 CFR Part 123.45, however, it does utilize the quarterly reporting deadlines
associated with the QNCR. The two examples of timing for SNC determination outlined in
Figure 2 above are consistent with the timing of existing NPDES noncompliance reporting, are
compatible with EPA's national NPDES database, and allow the identification, determination,
and tracking of wet weather SNC violations to be done in batches.
For any alleged violation found during an inspection or other compliance evaluation
activity, NPDES authorities should apply the appropriate CSO, SSO, CAFO, and storm water
program-specific SNC criteria in this policy - using best professional judgment - to determine
whether the violation is SNC. Applying the recommended SNC criteria in this policy will often
involve looking beyond actual discharges to evaluate other factors such as substantial failure to
implement best management practices or to meet major milestones required in a permit or a
judicial or administrative order, or failure to submit timely reports as required. Documentation
of the SNC determination (including the person making the determination, the date, and the
reason that the alleged violation constitutes SNC) should be kept on file by the NPDES authority,
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as well as timely entered or transferred into the ICIS-NPDES national database.3 If the NPDES
authority has not yet notified the facility of its noncompliance status, a written notification should
be provided at the time of the SNC determination to advise the facility of its status.
Facilities with alleged violations not initially determined to meet SNC criteria can be
addressed by either informal or formal enforcement action. EPA's 1989 NPDES Enforcement
Management System (EMS) encourages all CWA violations be reviewed and considered for
appropriate follow-up enforcement action. If non-SNC violations persist without resolution, the
NPDES authority should re-classify the alleged violation as SNC and initiate formal enforcement
action with an appropriate penalty - particularly if the facility fails to correct violations that are
noted during the compliance evaluation or fails to comply with conditions related to an informal
action.
A. Combined Sewer Overflows
EPA's 1994 CSO Control Policy required all CSO communities to implement the nine
minimum controls (NMCs) by January 1, 1997, and develop long term control plans (LTCPs) for
achieving compliance with the technology-based and water quality-based requirements of the
CWA. The CSO Control Policy provided that the requirement to implement the NMCs and
develop and implement approved LTCPs with intermediate and final milestones are to be
embodied in NPDES permits, or other enforceable mechanisms, such as administrative orders or
civil judicial consent decrees. In December 2000, Congress amended the CWA to require
conformity with EPA's CSO Control Policy in permitting and enforcement activities (Wet
Weather Water Quality Act).
Because developing and implementing LTCPs is the central requirement of the CSO
Policy, enforcement efforts should focus on the timely development and implementation of
adequate and enforceable LTCPs. Indeed, two of the most significant CSO noncompliance
issues, which each warrant inclusion as criteria for use in SNC determinations, are: 1) failure to
submit an adequate LTCP, and 2) failure to meet the intermediate and final LTCP milestones.
Similarly, substantial failure to implement the NMCs required by a permit or other enforceable
mechanism warrants inclusion as a criterion for SNC determination.
The SNC criteria also include "multiple significant unauthorized discharges " or multiple
unauthorized significant overflows. Isolated dry weather overflows (which are prohibited by the
CSO Policy) and which may be beyond the control of the permittee, do not necessarily elevate
the noncompliance to the status of SNC. For example, under the SNC criteria, a single dry
weather overflow that is not indicative of a broader problem would not trigger SNC. However,
multiple dry weather overflows at permitted CSO outfalls, which indicate a lack of system
3Specific ICIS-NPDES data entry guidance will be developed prior to full implementation of this policy.
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capacity, should be designated SNC. Whether the discharge is from a constructed, unpermitted
outfall should also be a factor to consider in determining whether the unauthorized discharge is
significant.
When determining whether alleged CSO violations should be designated as SNC, the
regulatory authority should evaluate the degree of noncompliance and the significance of the
environmental and health impacts associated with the violations.
Each of the following types of alleged CSO violations may constitute SNC:
CSO SNC Criteria
Multiple significant unauthorized discharges or multiple unauthorized significant overflows.4
Substantial failure to implement NMCs as required in a permit or in an administrative or
judicial order.
Failure to report unauthorized overflow(s) or discharge(s) as required.
Failure to submit an approvable LTCP, as required in a permit or in an administrative or
judicial order, or the submittal is late by 90 days or more.
Failure to meet the major milestones (including LTCP milestones) required in an
administrative or judicial order or in a permit (where expressly allowed by state water quality
standards) by 90 days or more.
Failure to submit required (e.g., by permit, enforcement order, or information request) report
or report is late by 30 days or more.
B. Sanitary Sewer Overflows
SSOs include those overflows that reach waters of the U.S., as well as overflows out of
manholes onto city streets, sidewalks, parks and other locations, and backups into buildings
caused by conditions in the sewer system. SSOs that reach waters of the U.S. are point source
discharges and are prohibited under Section 301 of the CWA. SSOs that do not reach waters of
the U.S. may be indicative of improper operation and maintenance of the sewer system, and thus
4
The term "multiple" includes repeated or recurring overflows at a single location, or an overflow (or overflows) at
different locations. The criteria for SNC include "multiple significant discharges or multiple significant overflows," however,
using its discretion (see section V.2.E.), it may be appropriate for the regulatory authority to designate an isolated discharge or
overflow as SNC if it involves a substantial volume, or has a significant adverse impact on human health or the environment.
Important considerations include the duration, frequency, and volume of any unpermitted discharge. An isolated discharge or
overflow generally does not elevate noncompliance to the level of SNC unless indicative of a broader problem.
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may violate NPDES permit conditions requiring proper operation and maintenance per the
federal regulations at 40 CFR 122.41(e).
In 1996, EPA added "Chapter X: Setting Priorities for Addressing Discharges from
Separate Sanitary Sewers" to the EMS. This Interim Wet Weather SNC Policy builds on the
guiding principles outlined in Chapter X. For alleged SSO violations, the regulatory authority,
using best professional judgment, should assess available information (including steps the
municipality has taken to plan for and address its peak wet weather flows), and evaluate the
significance of noncompliance and the associated significant impacts to the environment and/or
human health, as well as the quality of the municipality's operation and maintenance or Capacity,
Management, Operations, and Maintenance (CMOM) programs as specified in its permit or in an
enforcement order.
Each of the following types of alleged SSO violations may constitute SNC:
SSO SNC Criteria
Multiple significant unauthorized discharges, or multiple significant overflows.5
Failure to report overflow(s) or discharge event(s) as required.
Failure to meet the major milestones required in an administrative or judicial order or in a
permit by 90 days or more.
Failure to submit required (e.g., by permit, enforcement order, or information request) report
or report is late by 30 days or more.
C. Storm Water Point Sources
Storm water discharges are point sources subject to the NPDES program, as provided in
Section 402(p) of the CWA and EPA's implementing regulations. EPA and State issued
individual and general permits for storm water generally require the development and
implementation of storm water pollution prevention plans (SWPPP), or storm water management
programs (SWMP) in the case of municipal separate storm sewer systems (MS4). These best
management practices (BMPs) are to be implemented to minimize the discharge of pollutants to
receiving waters.
5The term "multiple" includes repeated or recurring discharges or overflows at a single location, or a
discharge/overflow at different locations. The regulatory authority may use its discretion to designate an isolated discharge or
overflow as SNC (see section V.2.E.) if the discharge or overflow involves a substantial volume, or has a significant adverse
impact on human health or the environment. Important considerations include the duration, frequency, and volume of any
unpermitted discharge. An isolated discharge or overflow generally does not elevate noncompliance to the level of SNC unless
indicative of a broader problem.
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For alleged storm water violations, the regulatory authority should make a SNC
determination using best professional judgment by assessing available information and
evaluating the significance of noncompliance, and the associated potential significant impacts to
the environment and/or human health.
Each of the following types of alleged storm water violations may constitute SNC:
Storm Water SNC Criteria
A significant unauthorized discharge.
Any significant unauthorized discharge at a site with a small construction waiver or
conditional exclusion for no exposure.
Significant violations of permit requirements. Examples of such violations include, but are not
limited to:
• lack of or a substantially inadequate SWPPP or SWMP,
• substantial failure to implement or maintain BMPs,
• substantial failure to perform required monitoring, and
• substantial failure to implement the MS4 requirements.
Failure to obtain permit coverage as required where there is a discharge.
Failure to meet the major milestones required in an administrative or judicial order or in a
permit by 90 days or more.
Failure to submit required report (including failure to respond to an information request), or
report is late by 90 days or more.
D. Concentrated Animal Feeding Operations
[Note: the 2/28/05 2nd Circuit decision and subsequent EPA revisions to the CAFO rule may
result in future changes to the CAFO criteria. ]
Concentrated animal feeding operations are defined as point sources subject to the
NPDES program. An EPA national CWA priority is to focus federal compliance and
enforcement activities on existing CAFOs that need permits {i.e., met the regulatory definition of
"CAFO" prior to the 2003 federal CAFO regulations and discharge to waters of the U.S.) and
have the potential to cause the most environmental harm, such as large and medium CAFOs with
outdoor production areas that are inadequately designed or operated. EPA and State issued
individual and general permits require the development and implementation of a nutrient
management plan (NMP) to properly manage manure, litter, and process wastewater generated by
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the CAFO and minimize the discharge of pollutants to receiving waters from land application
areas.
For alleged CAFO violations, the regulatory authority should make a SNC determination
using best professional judgment by assessing available information and evaluating the
significance of noncompliance, including the associated impacts on the environment and/or
human health. Factors specific to CAFOs include whether there is a:
• discharge from the production area that is not in compliance with an NPDES permit or
occurs in the absence of an NPDES permit; or
• non-precipitation related discharge (i.e., dry weather discharge) of manure, litter, process
wastewater, or other pollutants from the land application area to a water of the U.S.
Some examples of deficiencies in implementation of a NMP include: inadequate lagoon
freeboard, animal burrows in a lagoon berm causing leakage, clogged land application spray gun
causing uneven and over-application in some areas, long-term storage of manure in uncovered
stockpiles near a stream, disposal of dead animals in an open ditch, and failure to keep records
documenting nutrient management practices.
Each of the following alleged CAFO violations may constitute SNC:
CAFO SNC Criteria
Any significant unauthorized discharge.
No NMP when one is required.
(CAFO criteria continued on next page)
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Multiple discharges without an NPDES permit (and the failure to apply for an NPDES permit,
when one is required) and/or multiple violations of permit requirements.6 For example,
multiple deficiencies in implementing the permit and the NMP, such as failure to:
• maintain adequate storage capacity and containment
implement buffer/setback requirements
• properly manage chemicals and other contaminants handled on-site
• properly manage mortalities
• conduct proper operation and maintenance
• properly handle manure, including land applying in accordance with NMP
• test soils and manure, as required
• meet record keeping requirements
• keep the NMP up-to-date
Failure to meet the major milestones required in an administrative or judicial order or in a
permit by 90 days or more.
Failure to submit annual report or other required report (including failure to respond to an
information request), or report is late by 90 days or more.
E. Discretionary Wet Weather SNC
As with traditional NPDES SNC, the NPDES authority has the discretion to designate
any alleged wet weather violation of concern, even if it does not meet any of the specific criteria
above, as SNC. Interpreting and applying the criteria involves use of discretion as well. For
example, for alleged violations related to CSOs and SSOs, the NPDES authority has discretion to
determine how many violations constitute "multiple" significant overflows. Similarly, for
alleged storm water violations, the NPDES authority has discretion to determine the number of
violations that constitute "significant violations of permit requirements."
The NPDES authority also has the discretion to not designate alleged wet weather
violations that meet the above SNC criteria to account for unusual circumstances that result in
SNC violations beyond a facility's control.
6The term "multiple" includes repeated or recurring violations or deficiencies. The CAFO criteria for SNC
include "multiple violations of permit requirements" or "multiple deficiencies in implementing the permit and
NMP," however, it may be appropriate for the regulatory authority to use its discretion (see section V.2.E.) to
determine an isolated violation/deficiency as SNC if it has the potential for a significant adverse impact on human
health or the environment. Important considerations include type, duration, frequency, and outcome of any violation
or deficiency. An isolated violation or deficiency generally does not rise to the level of SNC unless it is indicative of
a broader problem.
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October, 2007
3. Identify and Undertake a Timely and Appropriate Response
The NPDES authority should take appropriate follow-up action against a wet weather
SNC violation no later than the reporting deadline associated with the third consecutive quarter
that the violation identified in Step 1 is in SNC, In most cases, EPA expects that the NPDES
authority will initiate formal enforcement actions to address SNC violations. The NPDES
Authority should use the 1995 Interim Clean Water Act Settlement Penalty Policy and
supplemental guidance documents to determine whether a penalty is appropriate and the penalty
amount, but EPA expects that most facilities will receive substantial penalties for violations that
rise to the level of SNC. The NPDES authority should consider the violator's past history of
compliance and/or recalcitrance. A pattern of violations (e.g., failure to obtain permit coverage
at multiple sites, similar violations at multiple sites owned or operated by the same entity, or
history of similar violations at one site) would be a factor to consider. For example, if the
violator has a poor compliance history, multiple violations, or a single violation resulting in
extreme adverse impacts (e.g., a fish kill), the NPDES authority should initiate formal
enforcement action, with a penalty when appropriate. In some circumstances, such as a first-time
violator that promptly implements corrective measures, SNC may be addressed by informal
action. Recommended SNC response options and deadlines are illustrated in Figure 3 below.
This policy does not directly impact EPA's quarterly noncompliance reporting (QNCR)
requirements per 40 CFR Part 123.45, however, it does utilize the quarterly reporting deadlines
associated with the QNCR. The quarterly approach outlined in Figure 3 is consistent with the
timing of existing NPDES noncompliance reporting, is compatible with EPA's national NPDES
database, and allows the identification, tracking, and response to wet weather SNC violations to
be done in batches.
A. Formal Enforcement Approach
When the NPDES authority determines that the violation rises to the level of SNC, the
NPDES authority should determine whether the violation should be resolved by a prompt, formal
enforcement action. A particularly egregious violation or a facility with history of
noncompliance or uncooperative behavior may compel the NPDES authority to proceed directly
to formal enforcement, with a penalty, when appropriate. EPA has existing guidance in the EMS
on the range of appropriate enforcement responses. Although the EMS does not specifically
address all wet weather sources, the same basic principles apply. The NPDES authority should
refer to existing national guidance and/or any program-specific guidance for recommendations
and use its discretion in determining appropriate enforcement responses.
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B. Informal Approach
When the NPDES authority determines that prompt and timely compliance is likely to be
achieved and that the violator has a good compliance record, it may decide to initially respond
with an informal action to resolve the SNC violation. All informal actions should be in writing
and well documented and should contain the following major elements: 1) informs the permittee
of the violation(s), 2) identifies the actions necessary to achieve compliance, 3) specifies
milestones and a final date to achieve compliance, and 4) provides notification of the possibility
of escalated enforcement action if the violation is not corrected in a timely manner.
Whenever an informal action is used to address a wet weather SNC violation, the
NPDES authority should evaluate progress made by the facility towards achieving compliance by
the second quarter response deadline. If the facility is being cooperative and is on track to
achieve compliance but has not yet obtained full compliance, the NPDES authority may not need
to take immediate additional action. The NPDES authority should continue to monitor the
facility's progress toward achieving compliance. However, if the facility fails to correct
violations and comply with the conditions specified in an informal action, the NPDES authority
should escalate to a formal enforcement action, with an appropriate penalty, as soon as
practicable, but no later than within one quarter of determining the facility's failure to maintain
its "resolved pending" status. If, however, after the NPDES authority initiates an informal
action, the facility is uncooperative and is not making progress towards achieving compliance by
the second quarter SNC response deadline, the NPDES authority should escalate to a formal
enforcement action with appropriate penalty by the third quarter SNC response deadline.
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Attachment 1 October, 2007
Figure 3. SNC Response Options and Deadlines
Quarter 1:
Conduct
compliance
monitoring
activity
1st Quarter
Response
-~ Deadline:
Determine
SNC
Response Options
Initiate FEA by 3,d Quarter Response
Deadline.
Initiate informal action. Evaluate
progress toward achieving compliance
by 2nd Quarter Response Deadline.
No action needed, compliance
achieved.
Cooperative facility: Facility on
track to achieve compliance --
immediate additional action may
not be required. Continue to
monitor progress. Initiate FEA
within one quarter of facility's
failure to comply
Uncooperative facility: Initiate
FEA by 3rd Quarter Response
Deadline
Quarter of Compliance
Monitoring Activity
1st Quarter Response
Deadline
2nd Quarter Response
Deadline
3rd Quarter Response
Deadline
January-March
May 31
August 31
November 30
April-June
August 31
November 30
February 28
July-September
November 30
February 28
May 31
October-December
February 28
May 31
August 31
Whenever an administrative penalty order (APO) is selected as an appropriate
enforcement response, it should be accompanied by an administrative order requiring
compliance, unless compliance has already been achieved. When a facility has returned to
compliance on its own, the NPDES authority may decide that an APO alone may be an
appropriate enforcement response to alleged wet weather SNC violations. For example, for a
construction company that failed to obtain storm water permit coverage and implement BMPs at
a particular site but has completed the construction project and moved on, an APO may be an
appropriate enforcement response if there are no ongoing violations at the site and no injunctive
relief is required to achieve compliance.
Consistent with EPA's existing NPDES SNC policy, when appropriate, the NPDES
authority may decide that no action is required because the facility has promptly and fully
returned to compliance once aware of its problems. A decision to take no action should be well
documented and kept in the NPDES authority's program files.
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4. Document Resolution of Noncompliance
The NPDES authority should document the pending resolution and final resolution of
SNC violations and include all documentation in its program files. This information should also
be timely entered or transferred into the 1CIS-NPDES national database. Determining that a wet
weather violation is resolved is challenging because most wet weather facilities do not submit
DMRs, therefore the MPDES authority does not automatically receive self-monitoring data to
verify a facility's compliance status. For example, the NPDES authority may utilize either a
certification letter submitted by the owner/operator of the facility or conduct a follow-up
inspection to determine if compliance has been achieved. Key documentation items to be
included in the certification letter or the report that follows the inspection should include a
detailed description of corrective measures and dates implemented as well as identification of
any other longer term actions planned (e.g., training of staff) and the schedule for those items.
The date the NPDES authority receives this documentation (i.e., date the certification letter
received or follow-up inspection is conducted) is critical in tracking when the facility's SNC
violation was resolved and if it was resolved expeditiously.
Where a SNC violation determination is based on intermittent discharges, having several
months without significant discharge is not necessarily sufficient to classify the facility as having
resolved SNC and returned to compliance. Generally, the facility will remain in SNC or
Resolved Pending status until it implements the appropriate corrective measures to resolve the
alleged SNC violations. For example, a separate sanitary system may be listed as SNC for a
significant discharge that occurs during wet weather because of insufficient sewer capacity. If no
corrective measures are implemented by the facility, the facility should not be considered to have
returned to compliance simply because a quarter passes without another significant discharge.
Generally, the facility will have resolved its SNC violation and returned to compliance when the
sewer capacity assurance projects necessary to eliminate the overflows have been completed.
VI. SNC Tracking and Reporting
Tracking and reporting of wet weather SNC information is linked to the implementation
of EPA's ICIS-NPDES national database and associated policy and guidance documents
currently under development. In coordination with EPA's Office of Compliance, EPA's Office
of Civil Enforcement will draft recommendations for tracking and reporting wet weather SNC
information and will seek input from the State-EPA NPDES Advisoiy Group.
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Attachment
List of Acronyms
APO
Administrative Penalty Order
BMP
Best management practice
CAFO
Concentrated animal feeding operation
CMOM
Capacity, Management, Operations, and Maintenance
cso
Combined sewer overflow
CWA
Clean Water Act
DMR
Discharge monitoring reports
EMS
Enforcement Management System
EPA
Environmental Protection Agency
ICES
Integrated Compliance Information System
LTCP
Long term control plan
MS4
Municipal separate storm sewer system
NMCs
Nine minimum controls
NMP
Nutrient management plan
NPDES
National Pollutant Discharge Elimination System
PCS
Permit Compliance System
SNC
Significant noncompliance
sso
Sanitary sewer overflow
SWMP
Storm water management plan
SWPPP
Storm water pollution prevention plan
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