1. Pretreatment 101 Enforcement EPA Region 6 Pretreatment Workshop August 2, 2011

2. Enforcement u This presentation reflects the Pretreatment Streamlining Rule revisions that were: –published in the Federal Register on October 14, 2005, –promulgated for judicial review purposes on October 28, 2005, and –effective on November 14, 2005

3. Enforcement Legal Authority u 40 CFR § 403.8(f)(1)(vi)(A) –Obtain remedies for noncompliance by any IU with any pretreatment standard or requirement u Local Regulations –enforce against any industrial user (IU) –all violations must be actionable –remedies must be non-exclusive u Derived from state law

4. ViolationsEnforcement Actions Unauthorized Discharges Prohibited Standards Permit Limits Monitoring Requirements Reporting Requirements Permit Conditions Compliance Schedule Deadlines Enforcement Orders/Actions Informal Notice Notice of Violation Administrative Fines Show Cause Orders Consent Orders Compliance Orders Cease and Desist Orders Injunctive Relief Civil Penalties Criminal Prosecution Supplement Enforcement Best Management Practices (BMPs) Requirements

5. Types of Violations u Unauthorized Discharges u can be unpermitted or non-permitted, with or without resulting harm to the POTW u Unpermitted: unaware of requirement to obtain a permit or notified of requirement to apply but fails to. u Non-permitted: fails to make application for permit renewal. u Prohibited Standards u with or without harm to POTW u Violations of permit limits u isolated or chronic; u minor or significant; and/or u with or without harm to POTW.

6. Types of Violations u Monitoring requirements violations u can be the result of a user’s failure to perform:  all self-monitoring required or a portion thereof  (e.g., did not perform required monthly self-monitoring);  compliance monitoring as required  (e.g., had self-monitoring limit violations but failed to perform required resampling and analyses)  monitoring in accordance with 40 CFR Part 136

7. Types of Violations u Reporting requirements violations  failure to comply with record keeping requirements as specified in § 403.12(o);  failure to provide 24 hour notice;  failure to provide notifications (notice of changed discharges, potential problems, violation, etc.), reports (compliance monitoring, etc.) or plans (slug discharge, etc.);  failure to provide reports by specified deadlines;  falsification or “doctoring” of paperwork;  failure to provide schedule of compliance activity reports by specified deadlines; and  failure to properly sign or certify reports

8. Types of Violations u Permit condition violations u failure to mitigate; u dilute wastestream in lieu of (adequate)pretreatment; u failure to install or maintain monitoring point and/or pretreatment equipment. u Compliance schedule deadlines violations u failure to perform specified activity by imposed deadline u Enforcement orders/actions u failure to respond as required

9. Legal Authority u Applies to all IUs of POTW u Need a range of administrative and judicial enforcement options

10. Enforcement Remedies u Administrative u Judicial u Supplemental

11. Administrative Enforcement Remedies u Notice of Violation u Consent Orders u Show Cause Hearing u Compliance Order u Cease and Desist Order u Administrative Fines u Emergency Suspension u Termination of Permit

12. Notice of Violation u Initial POTW response u Official notice u Provides IU opportunity to correct deficiency u Provides consistency u Issued for minor (nonsignificant) or infrequent violations

13. When to Issue a Notice of Violation? u Violations typically addressed with a NOV: –Unpermitted discharges –Effluent limit violations –Monitoring violations –Reporting violations –Missed Compliance Schedule deadlines

14. Administrative Fines u Issued at POTW’s discretion u Punitive in nature u Deterrent for future violations u Monetary penalty u Assessed directly by the Control Authority (CA) – no court order interference

15. Administrative Fines u In determining whether fines should be used and the amount of the fines, the CA should consider: –The type, severity, and number of the violations –The duration of the noncompliance –The impact of the violation on the: POTW, environment, human health –Whether the IU derived any economic benefit or savings from the noncompliance –Whether the IU is making good faith efforts to restore compliance –Other policy considerations normally involved in an enforcement decision

16. Administrative Fines u Types of fine schedules: –Flat rate –Flat rate with escalation –Fine calculated using a matrix –Fine based on type of noncompliance –Fine in addition to cost recovery –Fine based on economic benefit of noncompliance See EPA’s Guidance Manual for Calculation for Economic Benefit of Noncompliance with Pretreatment Standards (1989)

17. Administrative Fines u Methods to assess administrative fines: –Sewer bill –NOV –Administrative Order –Show Cause Hearing

18. Administrative Orders u Direct IUs to undertake or cease specified activities u Recommended as first formal response to SNC u May incorporate: –Compliance schedules –Administrative penalties –Termination of service orders

19. Administrative Orders u Common elements of administrative orders: –Title –Legal authority –Finding of noncompliance –Ordered activity –Milestone dates for corrective actions –Standard clauses

20. Administrative Orders u Types of Administrative Orders: –Cease and Desist Order –Consent Order –Show Cause Order –Compliance Order

21. Administrative Orders u Cease and Desist Order: –An administrative order directing an IU to immediately halt illegal or unauthorized discharges –Used where the discharge could cause interference or pass through or otherwise create an emergency situation

22. Administrative Orders u Consent Order: –An administrative order embodying a legally enforceable agreement between the CA and the noncompliant IU –Designed to restore the IU to compliance status

23. Administrative Orders u Elements of Consent Orders –Compliance schedule –Fines or remedial actions –Signatures of CA and IU representatives

24. Administrative Orders u Show Cause Order: –An administrative order directing a noncompliant IU F to appear before the CA, F explain its noncompliance, and F show cause why more severe enforcement actions against the IU should not go forward

25. Administrative Orders u Compliance Order: –An administrative order directing a noncompliant IU to achieve or restore compliance by a date specified in the order

26. Administrative Orders u Compliance Order: –Issued when noncompliance cannot be resolved without F construction, repair, or process changes –Used to require development of management plans or spill plans

27. Judicial Enforcement Remedies u Injunctive Relief u Civil Penalties u Criminal Prosecution

28. Civil Litigation u Why? Normally pursued when: –The corrective action required is costly and complex –The penalty to be assessed exceeds that which the CA can assess administratively –When the IU is considered to be unwilling to cooperate, and court supervised settlement is needed

29. Civil Litigation u Why? Normally pursued when: –Emergency situations where injunctive relief is necessary to halt or prevent discharges which threaten human health, the POTW, or the environment –To impose civil penalties and recover losses due to noncompliance

30. Civil Litigation u Remedies available: –Consent decree –Injunctions –Civil penalties & cost recovery

31. Civil Litigation u Consent Decree: –A court supervised settlement agreement, the violation of which may be considered contempt of court –Used when the IU is willing to acknowledge and correct the noncompliance and agree on penalty

32. Civil Litigation u Injunctions, Injunctive relief: –A court order which restrains or compels action by the IU

33. Civil Litigation u Civil Penalties: –A monetary or other punitive measure, usually associated with a court action –For the pretreatment program, the term may be used synonymously with “fines” (although fines generally imply the use of administrative rather than civil procedures)

34. Civil Litigation u Cost Recoveries u For expenses that the CA incurred when: –Responding to the noncompliance –Restoring the wastewater treatment plant and/or conveyances –Paying for medical treatment of injured employees –Paying for any fines assessed to the CA for NPDES permit violations

35. Civil Litigation u Basic Process: –The CA decides to sue IU to recover costs, seek civil penalties, and corrective actions –The CA files complaint alleging violation(s) –The IU files answer admitting or denying allegations –Trial date set –Discovery process involving CA and IU –Settlement negotiations –Trial –Verdict –Appeals

36. Clean Water Act Strict Liability Users are held legally responsible for noncompliance, regardless of intent or negligence

37. Criminal Prosecution u Acted upon when violations of the law are punishable, upon conviction, by fines and/or imprisonment u The prosecutor must prove criminal intent / negligence u Burden of proof is on the CA to compile strong evidence of noncompliance

38. Criminal Prosecution u The IU: –Must have intended to break the law or –Was so indifferent to the nature and implications of its act that it could be deem criminally negligent u Criminal offenses are traditionally defined as either felonies or misdemeanors

39. Criminal Prosecution u Felonies: –Offenses punishable by imprisonment for a term exceeding one year or death u Misdemeanors: –Offenses other than felonies u Each violation, each day, a separate offense

40. Supplemental Enforcement u Public notice u Water service severance u Termination of sewer service u Performance bond / liability insurance u Increased monitoring / reporting u Required pollution prevention activities

41. Enforcement Response Plans [40 CFR § 403.8(f)(5)] u Reflect POTW’s responsibility to enforce pretreatment requirements & standards u Identify how the POTW will investigate noncompliance u Specifies officials responsible for each type of enforcement u Specifies types of and time frames for taking escalating enforcement for anticipated types of violations

42. Enforcement Response Plans u Federal Register, October 14, 2005 u BMPs that set specific requirements will aid POTWs and Approval Authorities in their compliance determinations

43. Enforcement Response Plans u Federal Register, October 14, 2005 u BMP common elements include : –Requirements or prohibitions on practices, activities, or discharges –Requirements for installation, operation, and maintenance of treatment units –Timeframes for key activities –Reporting and records retention –Certification and reporting of compliance

44. Factors to Consider for Appropriate Enforcement Response u Magnitude of violation u Duration of violation u Effect on POTW, including a violation of BMPs, which will adversely affect the operation and implementation of the pretreatment program u Effect on receiving water u Pattern of past violations / success of previous enforcement actions u Attitude and actions of the IU

45. Effective enforcement actions are timely

46. Enforcement Data Management u Specify reports and compliance certifications required from IUs u Notify IUs of late submittals u Review reports and certifications received u Notify users, within specified timeframes, of deficiencies and violations in reports and any noncompliance issues, including BMP violations u Schedule IU responses u Track IU responses u Escalate enforcement

47. Enforcement Documentation u Comprehensive explanation of violation u Assume any action could be used in an enforcement case u Document ALL actions –Includes: telephone calls, meetings, etc.

48. Data Tracking IU related u Industrial waste survey u Permit reissuance u IU report due dates u IU reporting requirements u IU compliance status and violation dates, including BMPs u Timeframe due dates for BMP key activities

49. Data Tracking POTW related u POTW compliance monitoring u POTW inspection reports u POTW enforcement actions with due dates and received dates

50. Tracking Systems u Manual u Automatic u Standardized forms

51. Significant Noncompliance (SNC) u 40 CFR §403.8(f)(2)(viii) applies to: –SIUs –IUs which violate paragraphs (f)(2)(viii)(C), (D), and (H)

52. Significant Noncompliance (SNC) u Violation of a Pretreatment Standard or Requirement, as defined by 40 CFR §403.3(l): –daily maximum, –long-term average, or –instantaneous limit, or –narrative standard that causes pass through or interference

53. Significant Noncompliance (SNC) u Discharge that causes imminent endangerment or results in the POTW exercising its emergency authority u Failure to accurately report noncompliance

54. SNC (continued) u Failure to meet, within 90 days, a compliance schedule milestone u Failure to submit a report [including compliance certifications] within 45 days of the due date

55. SNC (continued) u Other violation or group of violations, which may include a violation of BMPs, which the POTW determines will adversely affect the operation or implementation of the local Pretreatment Program

56. SNC (continued) u Chronic violations – –66% or more of all the measurements during a 6-month period exceed allowable numeric limits – –measurements for same pollutant

57. SNC (continued) u Technical Review Criteria (TRC) violations – –33% or more of all the measurements during a 6-month period equal or exceed F F the product of the allowable numeric limit multiplied by the applicable TRC – –TRC = 1.4 (for BOD, TSS, FOG) or – –TRC = 1.2 (for all other pollutants, except pH) – –measurements for same pollutant

58. SNC (continued) u u Chronic and TRC violations – –now limited to numeric pretreatment standards or requirements – –include instantaneous limits

59. Chronic and TRC SNC Calculations u Calculate SNC quarterly “rolling quarters” u Evaluate a numeric Pretreatment Standard or Requirement, including instantaneous limits, as defined by 40 CFR §403.3(l) u Categorical daily maximums and monthly averages u “But I only collected one sample for the month”

60. SNC Calculations SNC (TRC) Second Quarter Jan-Jun Third Quarter Apr-Sep Fourth Quarter Jul-Dec Not SNC SNC (Chronic)

61. Indicators of an Effective Enforcement Response Plan u Ensure violators return to compliance as soon as possible u Penalize noncompliant users for pretreatment violations u Deter further noncompliance u Recover additional expenses incurred by POTW attributable to noncompliance

62. Approval Authority Oversight u u EPA or the State WILL review the files – –the files need to make sense – –the files need to present a clear picture of the chronology of events u u Expect each violation (reporting, discharge, and required BMPs) to be noted with POTW / IU response u u Anything less will complicate the review

63. Key to Effective Enforcement u Follow the enforcement response plan u Follow the enforcement response guide u Documentation u Notification u Escalation

64. RESOURCES http://cfpub.epa.gov/npdes/ Click on Pretreatment Then click on Final Pretreatment Streamlining Rule Pretreatment Streamlining Rule, Federal Register, October 14, 2005 Then click on Publications Guidance for Developing Control Authority Enforcement Response Plans, September 1989