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

Pretreatment 101

Enforcement

EPA Region 6 Pretreatment Workshop

August 2, 2011

EnforcementEnforcement

This presentation reflects the Pretreatment This presentation reflects the Pretreatment Streamlining Rule revisions that were:Streamlining Rule revisions that were:

– published in the published in the Federal RegisterFederal Register on October on October 14, 2005, 14, 2005,

– promulgated for judicial review purposes on promulgated for judicial review purposes on October 28, 2005, and October 28, 2005, and

– effective on November 14, 2005 effective on November 14, 2005

Enforcement Legal AuthorityEnforcement Legal Authority

40 CFR § 403.8(f)(1)(vi)(A)40 CFR § 403.8(f)(1)(vi)(A)

– Obtain remedies for noncompliance by any IU Obtain remedies for noncompliance by any IU with any pretreatment standard or requirementwith any pretreatment standard or requirement

Local RegulationsLocal Regulations

– enforce against any industrial user (IU)enforce against any industrial user (IU)

– all violations must be actionableall violations must be actionable

– remedies must be non-exclusiveremedies must be non-exclusive Derived from state lawDerived from state law

Violations Enforcement ActionsUnauthorized Discharges

Prohibited Standards

Permit Limits

Monitoring Requirements

Reporting Requirements

Permit Conditions

Compliance Schedule Deadlines

Enforcement Orders/Actions

Informal Notice

Notice of Violation

Administrative FinesShow Cause Orders

Consent OrdersCompliance Orders

Cease and Desist OrdersInjunctive ReliefCivil Penalties

Criminal ProsecutionSupplement EnforcementBest Management Practices

(BMPs) Requirements

Types of ViolationsTypes of Violations Unauthorized DischargesUnauthorized Discharges

can be unpermitted or non-permitted, with or without resulting harm to the can be unpermitted or non-permitted, with or without resulting harm to the POTWPOTW

Unpermitted: unaware of requirement to obtain a permit or notified of Unpermitted: unaware of requirement to obtain a permit or notified of requirement to apply but fails to.requirement to apply but fails to.

Non-permitted: fails to make application for permit renewal.Non-permitted: fails to make application for permit renewal.

Prohibited StandardsProhibited Standards with or without harm to POTWwith or without harm to POTW

Violations of permit limitsViolations of permit limits isolated or chronic;isolated or chronic;

minor or significant; and/orminor or significant; and/or

with or without harm to POTW.with or without harm to POTW.

Types of ViolationsTypes of Violations

Monitoring requirements violationsMonitoring requirements violations can be the result of a user’s failure to perform:can be the result of a user’s failure to perform:

all self-monitoring required or a portion thereof all self-monitoring required or a portion thereof

(e.g., did not perform required monthly self-monitoring);(e.g., did not perform required monthly self-monitoring);

compliance monitoring as requiredcompliance monitoring as required

(e.g., had self-monitoring limit violations but failed to (e.g., had self-monitoring limit violations but failed to perform required resampling and analyses)perform required resampling and analyses)

monitoring in accordance with 40 CFR Part 136monitoring in accordance with 40 CFR Part 136

Types of ViolationsTypes of Violations Reporting requirements violationsReporting requirements violations

failure to comply with record keeping requirements as failure to comply with record keeping requirements as specified in § 403.12(o);specified in § 403.12(o);

failure to provide 24 hour notice;failure to provide 24 hour notice;

failure to provide notifications (notice of changed discharges, failure to provide notifications (notice of changed discharges, potential problems, violation, etc.), reports (compliance potential problems, violation, etc.), reports (compliance monitoring, etc.) or plans (slug discharge, etc.);monitoring, etc.) or plans (slug discharge, etc.);

failure to provide reports by specified deadlines;failure to provide reports by specified deadlines;

falsification or “doctoring” of paperwork;falsification or “doctoring” of paperwork;

failure to provide schedule of compliance activity reports by failure to provide schedule of compliance activity reports by specified deadlines; andspecified deadlines; and

failure to properly sign or certify reportsfailure to properly sign or certify reports

Types of ViolationsTypes of Violations Permit condition violationsPermit condition violations

failure to mitigate;failure to mitigate;

dilute wastestream in lieu of (adequate)pretreatment;dilute wastestream in lieu of (adequate)pretreatment;

failure to install or maintain monitoring point and/or failure to install or maintain monitoring point and/or pretreatment equipment.pretreatment equipment.

Compliance schedule deadlines violationsCompliance schedule deadlines violations

failure to perform specified activity by imposed failure to perform specified activity by imposed deadlinedeadline

Enforcement orders/actionsEnforcement orders/actions

failure to respond as requiredfailure to respond as required

Legal AuthorityLegal Authority

Applies to all IUs of POTWApplies to all IUs of POTW

Need a range of administrative and judicial Need a range of administrative and judicial enforcement optionsenforcement options

Enforcement RemediesEnforcement Remedies

AdministrativeAdministrative

JudicialJudicial

SupplementalSupplemental

Administrative Administrative Enforcement RemediesEnforcement Remedies

Notice of ViolationNotice of Violation

Consent OrdersConsent Orders

Show Cause HearingShow Cause Hearing

Compliance OrderCompliance Order

Cease and Desist OrderCease and Desist Order

Administrative FinesAdministrative Fines

Emergency SuspensionEmergency Suspension

Termination of PermitTermination of Permit

Notice of ViolationNotice of Violation

Initial POTW responseInitial POTW response

Official noticeOfficial notice

Provides IU opportunity to correct deficiencyProvides IU opportunity to correct deficiency

Provides consistencyProvides consistency

Issued for minor (nonsignificant) or infrequent Issued for minor (nonsignificant) or infrequent violationsviolations

When to Issue a Notice of Violation?When to Issue a Notice of Violation?

Violations typically addressed with a NOV:Violations typically addressed with a NOV:

– Unpermitted dischargesUnpermitted discharges

– Effluent limit violationsEffluent limit violations

– Monitoring violationsMonitoring violations

– Reporting violationsReporting violations

– Missed Compliance Schedule deadlinesMissed Compliance Schedule deadlines

Administrative FinesAdministrative FinesAdministrative FinesAdministrative Fines Issued at POTW’s discretionIssued at POTW’s discretion

Punitive in naturePunitive in nature

Deterrent for future violationsDeterrent for future violations

Monetary penaltyMonetary penalty

Assessed directly by the Control Authority Assessed directly by the Control Authority (CA) – no court order interference(CA) – no court order interference

Administrative FinesAdministrative FinesAdministrative FinesAdministrative Fines In determining whether fines should be used and the amount of In determining whether fines should be used and the amount of

the fines, the CA should consider:the fines, the CA should consider:

– The type, severity, and number of the violationsThe type, severity, and number of the violations

– The duration of the noncomplianceThe duration of the noncompliance

– The impact of the violation on the: POTW, environment, The impact of the violation on the: POTW, environment, human healthhuman health

– Whether the IU derived any economic benefit or savings from Whether the IU derived any economic benefit or savings from the noncompliancethe noncompliance

– Whether the IU is making good faith efforts to restore Whether the IU is making good faith efforts to restore compliancecompliance

– Other policy considerations normally involved in an Other policy considerations normally involved in an enforcement decisionenforcement decision

Administrative FinesAdministrative FinesAdministrative FinesAdministrative Fines Types of fine schedules:Types of fine schedules:

– Flat rateFlat rate

– Flat rate with escalationFlat rate with escalation

– Fine calculated using a matrixFine calculated using a matrix

– Fine based on type of noncomplianceFine based on type of noncompliance

– Fine in addition to cost recoveryFine in addition to cost recovery

– Fine based on economic benefit of noncomplianceFine based on economic benefit of noncompliance

See EPA’s See EPA’s Guidance Manual for Calculation for Economic Benefit of Guidance Manual for Calculation for Economic Benefit of Noncompliance with Pretreatment StandardsNoncompliance with Pretreatment Standards (1989) (1989)

Administrative FinesAdministrative FinesAdministrative FinesAdministrative Fines Methods to assess Methods to assess

administrative fines:administrative fines:

– Sewer billSewer bill

– NOVNOV

– Administrative OrderAdministrative Order

– Show Cause HearingShow Cause Hearing

Administrative OrdersAdministrative Orders

Direct IUs to undertake or cease specified activitiesDirect IUs to undertake or cease specified activities

Recommended as first formal response to SNCRecommended as first formal response to SNC

May incorporate:May incorporate:

– Compliance schedulesCompliance schedules

– Administrative penaltiesAdministrative penalties

– Termination of service ordersTermination of service orders


Common elements of administrative orders:Common elements of administrative orders:

– TitleTitle

– Legal authorityLegal authority

– Finding of noncomplianceFinding of noncompliance

– Ordered activityOrdered activity

– Milestone dates for corrective actionsMilestone dates for corrective actions

– Standard clausesStandard clauses


Types of Administrative Orders:Types of Administrative Orders:

– Cease and Desist OrderCease and Desist Order

– Consent OrderConsent Order

– Show Cause OrderShow Cause Order

– Compliance OrderCompliance Order


Cease and Desist Order:Cease and Desist Order:

– An administrative order directing an IU to An administrative order directing an IU to

immediately halt illegal or unauthorized immediately halt illegal or unauthorized

dischargesdischarges

– Used where the discharge could cause Used where the discharge could cause

interference or pass through or otherwise create interference or pass through or otherwise create

an emergency situationan emergency situation


Consent Order:Consent Order:

– An administrative order embodying a An administrative order embodying a

legally enforceable agreement between the legally enforceable agreement between the

CA and the noncompliant IUCA and the noncompliant IU

– Designed to restore the IU to compliance Designed to restore the IU to compliance

statusstatus


Elements of Consent OrdersElements of Consent Orders

–Compliance scheduleCompliance schedule

–Fines or remedial actionsFines or remedial actions

–Signatures of CA and IU representativesSignatures of CA and IU representatives


Show Cause Order:Show Cause Order:

– An administrative order directing a noncompliant IUAn administrative order directing a noncompliant IU

to appear before the CA, to appear before the CA,

explain its noncompliance, and explain its noncompliance, and

show cause why more severe enforcement actions show cause why more severe enforcement actions

against the IU should not go forwardagainst the IU should not go forward


Compliance Order:Compliance Order:

–An administrative order directing a An administrative order directing a

noncompliant IU to achieve or restore noncompliant IU to achieve or restore

compliance by a date specified in the compliance by a date specified in the

orderorder


Compliance Order:Compliance Order:

– Issued when noncompliance cannot be Issued when noncompliance cannot be

resolved withoutresolved without

construction, repair, or process changesconstruction, repair, or process changes

– Used to require development of Used to require development of

management plans or spill plansmanagement plans or spill plans

JudicialJudicialEnforcement RemediesEnforcement Remedies

Injunctive ReliefInjunctive Relief

Civil PenaltiesCivil Penalties

Criminal ProsecutionCriminal Prosecution

Civil LitigationCivil Litigation

Why? Normally pursued when:Why? Normally pursued when:– The corrective action required is costly and The corrective action required is costly and

complexcomplex

– The penalty to be assessed exceeds that The penalty to be assessed exceeds that which the CA can assess administrativelywhich the CA can assess administratively

– When the IU is considered to be unwilling to When the IU is considered to be unwilling to cooperate, and court supervised settlement cooperate, and court supervised settlement is neededis needed


Why? Normally pursued when:Why? Normally pursued when:

–Emergency situations where injunctive Emergency situations where injunctive relief is necessary to halt or prevent relief is necessary to halt or prevent discharges which threaten human discharges which threaten human health, the POTW, or the environmenthealth, the POTW, or the environment

–To impose civil penalties and recover To impose civil penalties and recover losses due to noncompliancelosses due to noncompliance


Remedies available:Remedies available:–Consent decreeConsent decree

– InjunctionsInjunctions

–Civil penalties & cost recoveryCivil penalties & cost recovery

Civil LitigationCivil Litigation Consent Decree:Consent Decree:

–A court supervised settlement A court supervised settlement agreement, the violation of which may agreement, the violation of which may be considered contempt of courtbe considered contempt of court

–Used when the IU is willing to Used when the IU is willing to acknowledge and correct the acknowledge and correct the noncompliance and agree on penaltynoncompliance and agree on penalty


Injunctions, Injunctive relief:Injunctions, Injunctive relief:

–A court order which restrains or A court order which restrains or compels action by the IUcompels action by the IU

Civil LitigationCivil Litigation Civil Penalties:Civil Penalties:

– A monetary or other punitive measure, A monetary or other punitive measure, usually associated with a court actionusually associated with a court action

– For the pretreatment program, the term For the pretreatment program, the term may be used synonymously with “fines” may be used synonymously with “fines” (although fines generally imply the use of (although fines generally imply the use of administrative rather than civil administrative rather than civil procedures)procedures)

Civil LitigationCivil Litigation Cost RecoveriesCost Recoveries

For expenses that the CA incurred For expenses that the CA incurred when:when:

– Responding to the noncomplianceResponding to the noncompliance

– Restoring the wastewater treatment plant and/or Restoring the wastewater treatment plant and/or conveyancesconveyances

– Paying for medical treatment of injured employeesPaying for medical treatment of injured employees

– Paying for any fines assessed to the CA for NPDES Paying for any fines assessed to the CA for NPDES permit violationspermit violations

Civil LitigationCivil Litigation Basic Process:Basic Process:

– The CA decides to sue IU to recover costs, seek civil The CA decides to sue IU to recover costs, seek civil penalties, and corrective actionspenalties, and corrective actions

– The CA files complaint alleging violation(s)The CA files complaint alleging violation(s)

– The IU files answer admitting or denying allegationsThe IU files answer admitting or denying allegations

– Trial date setTrial date set

– Discovery process involving CA and IUDiscovery process involving CA and IU

– Settlement negotiationsSettlement negotiations

– TrialTrial

– VerdictVerdict

– AppealsAppeals

Clean Water ActClean Water Act

Strict LiabilityStrict Liability

Users are held legally responsible

for noncompliance, regardless of

intent or negligence


Acted upon when violations of the law are Acted upon when violations of the law are punishable, upon conviction, by fines punishable, upon conviction, by fines and/or imprisonment and/or imprisonment

The prosecutor must The prosecutor must proveprove criminal intent / criminal intent / negligencenegligence

Burden of proof is on the CA to compile Burden of proof is on the CA to compile strong evidence of noncompliancestrong evidence of noncompliance

Criminal ProsecutionCriminal Prosecution The IU:The IU:

– Must have Must have intendedintended to break the law to break the law oror

– Was so indifferent to the nature and Was so indifferent to the nature and implications of its act that it could be implications of its act that it could be deem criminally deem criminally negligentnegligent

Criminal offenses are traditionally defined Criminal offenses are traditionally defined as either felonies or misdemeanorsas either felonies or misdemeanors


Felonies: Felonies:

– Offenses punishable by imprisonment for Offenses punishable by imprisonment for a term exceeding one year or deatha term exceeding one year or death

Misdemeanors: Misdemeanors:

– Offenses other than feloniesOffenses other than felonies

Each violation, each day, a separate Each violation, each day, a separate offenseoffense

Supplemental EnforcementSupplemental Enforcement

Public noticePublic notice

Water service severanceWater service severance

Termination of sewer serviceTermination of sewer service

Performance bond / liability insurancePerformance bond / liability insurance

Increased monitoring / reportingIncreased monitoring / reporting

Required pollution prevention activitiesRequired pollution prevention activities

Enforcement Response PlansEnforcement Response Plans[40 CFR § 403.8(f)(5)][40 CFR § 403.8(f)(5)]

Reflect POTW’s responsibility to enforce Reflect POTW’s responsibility to enforce pretreatment requirements & standardspretreatment requirements & standards

Identify how the POTW will investigate Identify how the POTW will investigate noncompliance noncompliance

Specifies officials responsible for each type of Specifies officials responsible for each type of enforcementenforcement

Specifies types of and time frames for taking Specifies types of and time frames for taking escalating enforcement for anticipated types of escalating enforcement for anticipated types of violationsviolations

Enforcement Response PlansEnforcement Response Plans

Federal RegisterFederal Register, October 14, 2005, October 14, 2005

BMPs that set specific requirements will aid BMPs that set specific requirements will aid POTWs and Approval Authorities in their POTWs and Approval Authorities in their compliance determinationscompliance determinations

Enforcement Response PlansEnforcement Response Plans

Federal RegisterFederal Register, October 14, 2005, October 14, 2005

BMP common elements includeBMP common elements include::

– Requirements or prohibitions on practices, activities, or Requirements or prohibitions on practices, activities, or dischargesdischarges

– Requirements for installation, operation, and Requirements for installation, operation, and maintenance of treatment unitsmaintenance of treatment units

– Timeframes for key activitiesTimeframes for key activities

– Reporting and records retentionReporting and records retention

– Certification and reporting of complianceCertification and reporting of compliance

Factors to Consider for Appropriate Factors to Consider for Appropriate Enforcement ResponseEnforcement Response

Magnitude of violationMagnitude of violation

Duration of violationDuration of violation

Effect on POTW, including a violation of BMPs, which will Effect on POTW, including a violation of BMPs, which will adversely affect the operation and implementation of the adversely affect the operation and implementation of the pretreatment programpretreatment program

Effect on receiving waterEffect on receiving water

Pattern of past violations / success of previous Pattern of past violations / success of previous enforcement actionsenforcement actions

Attitude and actions of the IUAttitude and actions of the IU

Effective enforcement Effective enforcement

actionsactions

areare

timelytimely

Effective enforcement Effective enforcement

actionsactions

areare

timelytimely

Enforcement Data ManagementEnforcement Data Management Specify reports and compliance certifications Specify reports and compliance certifications

required from IUsrequired from IUs Notify IUs of late submittalsNotify IUs of late submittals Review reports and certifications receivedReview reports and certifications received Notify users, Notify users, within specified timeframeswithin specified timeframes, of , of

deficiencies and violations in reports and any deficiencies and violations in reports and any noncompliance issues, including BMP violationsnoncompliance issues, including BMP violations

Schedule IU responsesSchedule IU responses Track IU responsesTrack IU responses Escalate enforcementEscalate enforcement

Enforcement Enforcement DocumentationDocumentation

Comprehensive explanation of violationComprehensive explanation of violation Assume any action could be used in an Assume any action could be used in an

enforcement caseenforcement case Document Document ALLALL actions actions

– Includes: telephone calls, meetings, etc.Includes: telephone calls, meetings, etc.

Data TrackingData TrackingIU relatedIU related

Industrial waste surveyIndustrial waste survey Permit reissuancePermit reissuance IU report due datesIU report due dates IU reporting requirementsIU reporting requirements IU compliance status and violation IU compliance status and violation

dates, including BMPsdates, including BMPs Timeframe due dates for BMP key Timeframe due dates for BMP key

activitiesactivities

Data TrackingData TrackingPOTW relatedPOTW related

POTW compliance monitoringPOTW compliance monitoring

POTW inspection reportsPOTW inspection reports

POTW enforcement actions with POTW enforcement actions with due dates and received datesdue dates and received dates

Tracking SystemsTracking Systems

ManualManual

AutomaticAutomatic

Standardized formsStandardized forms

Significant Noncompliance Significant Noncompliance (SNC)(SNC)

40 CFR 40 CFR §403.8(f)(2)(viii) applies to:§403.8(f)(2)(viii) applies to:

– SIUsSIUs

– IUs which violate paragraphs (f)(2)(viii)IUs which violate paragraphs (f)(2)(viii)(C), (D), and (H)(C), (D), and (H)


Violation of a Pretreatment Standard or Violation of a Pretreatment Standard or Requirement, as defined by 40 CFR Requirement, as defined by 40 CFR §403.3(l):§403.3(l):

– daily maximum, daily maximum,

– long-term average, or long-term average, or

– instantaneous limit, orinstantaneous limit, or

– narrative standardnarrative standard

that causes pass through or interferencethat causes pass through or interference


Discharge that causes imminent Discharge that causes imminent endangerment or results in the POTW endangerment or results in the POTW exercising its emergency authorityexercising its emergency authority

Failure to accurately report Failure to accurately report noncompliancenoncompliance

SNC (continued)SNC (continued)

Failure to meet, within 90 days, a Failure to meet, within 90 days, a compliance schedule milestonecompliance schedule milestone

Failure to submit a report Failure to submit a report [including compliance [including compliance certifications] within 45 days of certifications] within 45 days of the due datethe due date


Other violation or group of violations, Other violation or group of violations, which may include which may include a violationa violation of BMPs of BMPs, , which the POTW determines will which the POTW determines will adversely affect the operation or adversely affect the operation or implementation of the local Pretreatment implementation of the local Pretreatment ProgramProgram


Chronic violationsChronic violations– 66% or more of all the measurements during a

6-month period exceed allowable numeric limits– measurements for same pollutant


Technical Review Criteria (TRC) Technical Review Criteria (TRC) violationsviolations– 33% or more of all the measurements during a

6-month period equal or exceed 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


Chronic and TRC violations– now limited to numeric

pretreatment standards or requirements

– include instantaneous limits

Chronic and TRC Chronic and TRC SNC CalculationsSNC Calculations

Calculate SNC quarterly “rolling quarters”Calculate SNC quarterly “rolling quarters”

Evaluate Evaluate a numerica numeric Pretreatment Standard or Pretreatment Standard or Requirement, including instantaneous limits, as Requirement, including instantaneous limits, as defined by 40 CFR defined by 40 CFR §403.3(l)§403.3(l)

Categorical daily maximums and monthly Categorical daily maximums and monthly averagesaverages

““But I only collected one sample for the month”But I only collected one sample for the month”

SNC CalculationsSNC Calculations

Month Self MonitoringJan 0.05Feb 0.06Mar 0.09Apr 0.1May 0.04Jun 0.04Jul 0.08

Aug 0.04Sep 0.03Oct 0.08Nov 0.08Dec 0.08Jan 0.02Feb 0.02Mar 0.02Apr 0.12May 0.11Jun 0.02Jul 0.09

Aug 0.03Sep 0.03

Metal Finishing PSESTRC = 1.2(0.07) = 0.084Cadmium - Monthly Ave. = 0.07

Started Jan 2006

SNC

(TRC)

Second QuarterJan-Jun

Third QuarterApr-Sep

Fourth QuarterJul-Dec

Not SNC

SNC(Chronic)

Indicators of an EffectiveIndicators of an EffectiveEnforcement Response PlanEnforcement Response Plan

Ensure violators return to compliance as Ensure violators return to compliance as soon as possiblesoon as possible

Penalize noncompliant users for Penalize noncompliant users for pretreatment violationspretreatment violations

Deter further noncomplianceDeter further noncompliance

Recover additional expenses incurred by Recover additional expenses incurred by POTW attributable to noncompliancePOTW attributable to noncompliance

Approval Authority OversightApproval Authority Oversight

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

Expect each violation (reporting, discharge, and required BMPs) to be noted with POTW / IU response

Anything less will complicate the review

Key to Effective Key to Effective EnforcementEnforcement

Follow the enforcement response plan Follow the enforcement response plan Follow the enforcement response guideFollow the enforcement response guide DocumentationDocumentation NotificationNotification EscalationEscalation

RESOURCESRESOURCEShttp://cfpub.epa.gov/npdes/

Click on Pretreatment

Then click on Final Pretreatment Streamlining Rule

Pretreatment Streamlining Rule, Federal Register, Pretreatment Streamlining Rule, Federal Register, October 14, 2005October 14, 2005

Then click on Publications

Guidance for Developing Control Authority Guidance for Developing Control Authority Enforcement Response Plans, September 1989Enforcement Response Plans, September 1989

Documents

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