OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

 Evaluation Report 

Better Enforcement Oversight 

Needed for Major Facilities with 

Water Discharge Permits in 

Long-Term Significant Noncompliance 

Report No. 2007-P-00023 

 May 14, 2007 
Report Contributors: George Golliday

 Renee McGhee-Lenart 

Laura Tam

 Andrew Creath 

 Dan Engelberg 

Abbreviations 

DMR Discharge Monitoring Report 

ECHO Enforcement and Compliance History Online 

EMS Enforcement Management System 

EPA U.S. Environmental Protection Agency 

NPDES National Pollutant Discharge Elimination System 

OECA Office of Enforcement and Compliance Assurance 

OIG Office of Inspector General 

OTIS Online Tracking Information System 

PCS Permit Compliance System 

QNCR Quarterly Noncompliance Report 

SNC Significant Noncompliance 

Cover Photo: Sloss Industries wastewater treatment facility. 

(Black Warrior RIVERKEEPER Website photo) 
U.S. Environmental Protection Agency 2007-P-00023

Office of Inspector General May 14, 2007

At a Glance


Catalyst for Improving the Environment 

Why We Did This Review 

We undertook this review to 

assess oversight of major 

facilities in long-term

significant noncompliance 

with water discharge permit

requirements. We sought to

determine if the U.S. 

Environmental Protection 

Agency (EPA) and States are 

taking timely and appropriate 

enforcement actions against 

facilities in long-term

significant noncompliance. 

Background 

EPA has authorized 45 States 

to administer the National 

Pollutant Discharge

Elimination System program, 

including enforcement of 

discharge permits. EPA still 

maintains responsibility for 

oversight and ensuring that

Clean Water Act regulations 

are enforced. According to

EPA’s current guidance,

several basic oversight criteria 

define a “well-performing” 

compliance and enforcement 

program, including (1) timely

and appropriate enforcement 

response, and (2) accurate

recordkeeping and reporting. 

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: 

www.epa.gov/oig/reports/2007/ 

20070514-2007-P-00023.pdf 

Better Enforcement Oversight Needed for 

Major Facilities with Water Discharge Permits 

in Long-Term Significant Noncompliance

 What We Found 

EPA did not provide effective enforcement oversight of major facilities with 

National Pollutant Discharge Elimination System permits in long-term significant 

noncompliance. While flexibility is required in a national program, EPA 

inconsistently applied guidance defining timely formal actions. Also, EPA 

guidance did not provide meaningful direction on what constitutes “appropriate” 

actions. Moreover, for 21 of 56 facilities reviewed, EPA and States did not take 

suitable formal enforcement actions to address all instances of significant 

noncompliance. At the remaining 35 facilities, none of the actions we could 

assess were timely based on criteria in EPA’s Enforcement Management System. 

EPA and States also did not maintain complete and accurate records of National 

Pollutant Discharge Elimination System compliance and enforcement activities. 

Many region and State files were incomplete, and data in EPA’s information 

systems were incomplete and inaccurate. Further, regions and States did not 

report inspection-related violations in EPA’s Permit Compliance System. We also 

noted that bacteria exceedances are not required to be reported as significant 

noncompliances. 

Timely actions could help minimize the millions of pounds of excess pollutants 

released by these facilities. We estimate that up to 51 million pounds of excess 

pollutant loads were discharged from July 2002 through June 2005 by 44 facilities 

reviewed, representing loads that could be minimized. 

What We Recommend 

We recommend that the Assistant Administrator for the Office of Enforcement 

and Compliance Assurance clarify and implement guidance regarding facilities in 

significant noncompliance, implement a quality assurance program, and establish 

controls allowing EPA leadership to identify significant noncompliance by 

bacteria-only violators. EPA disputed many of our findings, but stated general 

concurrence with our recommendations and identified planned actions. However, 

the Office of Enforcement and Compliance Assurance’s planned actions generally 

do not address the intent of our recommendations, and the issues are considered 

unresolved. 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL 

May 14, 2007 

MEMORANDUM 

SUBJECT: Better Enforcement Oversight Needed for Major Facilities with 

Water Discharge Permits in Long-Term Significant Noncompliance 

Report No. 2007-P-00023 

FROM: Wade T. Najjum 

Assistant Inspector General, Office of Program Evaluation 

TO: Granta Y. Nakayama 

Assistant Administrator, Office of Enforcement and Compliance Assurance 

This is our report on the subject review conducted by the Office of Inspector General (OIG) of 

the U.S. Environmental Protection Agency (EPA). This report contains findings that describe 

the problems the OIG has identified and corrective actions the OIG recommends. Accordingly, 

the findings described in the report are not binding upon EPA in any enforcement proceeding 

brought by EPA or the Department of Justice. This report represents the opinion of the OIG and 

does not necessarily represent the final EPA position. Final determinations on matters in this 

report will be made by EPA managers in accordance with established resolution procedures. 

The estimated cost of this report – calculated by multiplying the project’s staff days by the 

applicable daily full cost billing rates in effect at the time – is $932,305. 

Action Required 

In accordance with EPA Manual 2750, you are required to provide a written response to this 

report within 90 calendar days. You should include a corrective action plan for agreed upon 

actions, including milestone dates. We have no objections to the further release of this report to 

the public. This report will be available at http://www.epa.gov/oig. 

If you or your staff have any questions regarding this report, please contact me at (202) 566-0832 

or najjum.wade@epa.gov; or Dan Engelberg, Director for Program Evaluation, Water Issues, at 

(202) 566-0830 or engelberg.dan@epa.gov. 
Better Enforcement Oversight Needed for Major Facilities with 

Water Discharge Permits in Long-Term Significant Noncompliance

Table of Contents 

Chapters 

1 Introduction ........................................................................................................... 1 

Purpose .......................................................................................................... 1 

Background .................................................................................................... 1 

Noteworthy Achievements.............................................................................. 5 

Scope and Methodology................................................................................. 5 

2 Oversight Limited at NPDES Major Facilities in Long-Term SNC..................... 6 

EPA Guidance Misinterpreted and Vague...................................................... 6 

Lack of Suitable Enforcement at 21 Facilities................................................. 8 

Untimely Enforcement at 30 Facilities ............................................................ 8 

Timely Enforcement Helps Minimize Excess Pollutant Discharges................ 9 

Conclusion...................................................................................................... 9 

 Recommendation ........................................................................................... 10 

Agency Comments and OIG Evaluation......................................................... 10 

3 Incomplete and Inaccurate Records and Reporting Inhibit 

EPA Oversight of NPDES Major Facilities .......................................................... 11 

Compliance and Enforcement Files Incomplete............................................. 11 

EPA’s Enforcement Data Systems Inaccurate ............................................... 12 

Many Violations Found During Inspections Not Reported in PCS ................. 13 

Bacteria Not Reported as SNC ...................................................................... 13 

Conclusion...................................................................................................... 14 

 Recommendations ......................................................................................... 14 

Agency Comments and OIG Evaluation......................................................... 14 

Status of Recommendations and Potential Monetary Benefits................................. 15

Appendices 

A Details on Scope and Methodology..................................................................... 16 

B Overall Agency Comments................................................................................... 20 

C OIG Evaluation of Overall Agency Comments ................................................... 23

D Detailed Agency Comments and OIG Evaluation............................................... 25 

E Distribution ............................................................................................................ 43 
Chapter 1

Introduction 

Purpose 

We initiated this review to assess oversight of major facilities in long-term 

significant noncompliance (SNC) with National Pollutant Discharge Elimination 

System (NPDES) permits. The U.S. Environmental Protection Agency (EPA) has 

overall responsibility for implementing the NPDES program and ensuring 

adherence to Clean Water Act regulatory requirements. We sought to determine 

how well EPA is ensuring that timely and appropriate enforcement actions are 

taken against NPDES facilities in long-term SNC. We also sought to determine 

what excess pollutant loads could be minimized if facilities in long-term SNC for 

effluent violations achieved compliance. 

Background 

The Clean Water Act authorizes the NPDES permit program. The program is 

designed to control water pollution by regulating point sources that discharge 

pollutants into surface waters of the United States. Point sources are discrete 

conveyances, such as pipes from municipal and industrial facilities or man-made 

ditches. These facilities are generally classified as major or minor, depending on 

size and nature of the discharges. For example, a major municipal treatment plant 

typically discharges one million gallons or more per day of wastewater. 

Facilities that intend to discharge pollutants into the Nation’s waters are required 

to obtain an NPDES permit. The permit sets limits on the amount of pollution a 

facility can discharge into waterbodies, to protect human health and aquatic 

resources. Federal regulations require permitted facilities to monitor discharged 

pollutants and periodically report those monitoring results to EPA or States using 

Discharge Monitoring Reports (DMRs). 

Noncompliance with permit requirements can pose risks to human health and the 

environment. Violations of pollutant permit limits can expose aquatic life and 

humans to excess levels of toxic or harmful pollutants. Similarly, failure to 

submit DMRs means risks to aquatic life and humans are unknown. 

EPA Oversight of NPDES Compliance and Enforcement Programs 

The EPA Office of Enforcement and Compliance Assurance (OECA) is 

responsible for ensuring that the regulated community complies with Federal 

environmental statutes, including the Clean Water Act. The Clean Water Act 

gives EPA authority to allow States to administer the NPDES program. 

1
Currently, 45 States administer the program, including compliance and 

enforcement. Where the State is the administering agency, EPA has continuing 

overall responsibility for implementing and overseeing the NPDES program. In 

the remaining States, EPA is still the administering authority. For certain States, 

including Oklahoma and Texas, EPA has compliance and enforcement authority 

for some facilities while the States have that authority over others. 

According to EPA’s current guidance, 1986 Revised Policy Framework for 

State/EPA Enforcement Agreements, several basic elements define a "quality" 

compliance and enforcement program, including: 

• Timely and appropriate enforcement response 

• Accurate recordkeeping and reporting 

Compliance with the nation's environmental laws is the goal of enforcement. 

Deterrence of noncompliance is achieved through: (1) a credible likelihood of 

detecting a violation, (2) the speed of the enforcement response, and (3) the 

likelihood and severity of the sanction. Enforcement is a vital part of encouraging 

regulated entities to meet environmental obligations. Additionally, enforcement 

levels the playing field with environmentally compliant companies and deters 

those who might otherwise profit from violating the law. 

Types of Noncompliance 

Title 40, Code of Federal Regulations, Section 123.45(a)(2) requires EPA and 

States to report when NPDES major dischargers are in noncompliance with their 

permit conditions. Reportable noncompliance can include a violation of effluent 

limits in NPDES permits, violations of enforcement orders or schedules for 

compliance with permit conditions, failure to provide compliance schedule reports, 

unauthorized bypasses or discharges, and failure to submit DMRs on time. 

SNC is a subset of reportable noncompliance. SNC involves priority violations of 

NPDES permit conditions that EPA believes merit special attention, including: 

• Violations of monthly and non-monthly effluent limits for two or more 

months during two consecutive quarterly review periods, by (a) 20 percent 

for toxic pollutants, such as metals; and (b) 40 percent for conventional 

pollutants, such as total suspended solids. 

• Non-effluent violations, such as bypasses or unpermitted discharges, 

which cause or have the potential to cause a water quality problem, such 

as beach closings. 

• Permit compliance schedule violations. 

• Reporting violations, including failure to submit timely DMRs (filing a 

DMR more than 30 days late or not at all). 

• Violations of existing enforcement orders, including judicial or 

administrative orders. 

2
There are approximately 6,400 active NPDES major facilities. About 4,800 

facilities reported being in noncompliance for at least one quarter during our 

12-quarter review period (July 2002 through June 2005). About 2,650 of those 

facilities were reported to be in SNC for at least one quarter during the same time. 

Enforcement Management System Criteria 

EPA’s national guidance for developing and improving NPDES compliance 

tracking and enforcement systems is called the Enforcement Management System 

(EMS). According to the EMS, there are three levels of response to all violations. 

For some violations, a response may not be necessary. The second level response 

is an informal response. An informal enforcement response can be an inspection, 

phone call, or a violation letter. Informal responses inform the permittee that the 

Agency is aware that a violation occurred. The third level of response is a formal 

action. A formal enforcement action: 

• Requires a facility to take action to achieve compliance. 

• Specifies a timetable. 

• Contains consequences for noncompliance that are independently 

enforceable without having to prove the original violations. 

• Subjects the facility to adverse legal consequences for noncompliance. 

According to the EMS, facilities with SNC violations must receive a formal 

enforcement action, from the administering authority, that is timely and 

appropriate, or return to compliance within the quarter following the SNC 

violation. If formal action is not taken, the State or EPA is expected to produce a 

written record clearly justifying why an alternative action (other than a formal 

action) was more appropriate. If the State, as the NPDES program authority, does 

not take timely and appropriate formal enforcement action, EPA is expected to 

take a formal enforcement action. 

EMS states a timely formal enforcement action must be taken by the end of the 

quarter following the SNC violation. For instance, if a facility experiences an 

SNC violation in February of the first quarter, a formal enforcement must be 

taken by the administering agency by June 30 of the second quarter. 

EMS states an appropriate response for SNC is a formal action. The guidance 

states an appropriate formal enforcement action is determined by its effectiveness 

and whether the noncomplying facility returns to compliance as quickly as 

possible. An appropriate action also establishes a deterrent to future violations 

and promotes fairness of government treatment. 

Compliance and Enforcement Data Systems and Reports 

EPA and States use the Permit Compliance System (PCS) to manage and assess 

compliance and enforcement program information. This includes such 

3
information as permit issuance, permit limits, facility monitoring data, and 

enforcement and inspection activity for facilities regulated under the Clean Water 

Act. EPA and States enter compliance and enforcement information directly into 

the PCS database. For example, States enter DMR data and information 

submitted by NPDES facilities into PCS. A few States submit DMR information 

electronically. 

The Online Tracking Information System (OTIS) enables EPA staff, 

State/local/tribal governments, and Federal agencies to access enforcement and 

compliance data from systems like PCS. The public can access the Enforcement 

and Compliance History Online Website (ECHO),1 which provides similar data. 

Each quarter, the States and/or EPA produce a Quarterly Noncompliance Report 

(QNCR) from PCS. The report flags NPDES major facilities that were in 

reportable noncompliance with permit requirements during the previous 6 months. 

States and EPA regions use the QNCR to determine what actions to take at these 

facilities. The QNCR encompasses a rolling 6-month period such that the QNCR 

for the second quarter (April through June) captures reportable effluent violations 

from January through June. The Watch List is an EPA management tool, not for 

public access, that tracks facilities with serious or chronic noncompliance that 

have not received formal enforcement action. 

PCS reports effluent violations on the QNCR by using a computer comparison of 

permitted effluent limits to a facility’s actual self-reported monitoring data from 

DMRs. If those effluent violations are severe enough, the facilities should be 

flagged as SNC for effluent violations. The QNCR is submitted to EPA 

headquarters on the last working day of the second month following the QNCR 

period. 

Compliance Inspections 

Inspections are another critical source of compliance and enforcement 

information. During inspections, information is gathered to determine 

compliance. Inspections include direct observations of facility operations and/or 

conditions. Inspections allow EPA and States to determine reliability of a 

permittee’s self-reported data. They also allow EPA to evaluate compliance with 

permit conditions, applicable regulations, and other requirements. The Agency 

goal is to have EPA and/or States annually inspect 100 percent of all NPDES 

major facilities or equivalent coverage of a combination of major and priority 

minor facilities. 

1 http://www.epa.gov/echo/. 

4
Noteworthy Achievements 

OECA piloted the State Review Framework in 2004 to foster dialogue on 

enforcement and compliance performance that should lead to improved program 

management and environmental results. This framework involves a process for 

conducting performance reviews of enforcement and compliance activities in the 

States (as well as for non-delegated programs implemented by EPA regions). 

In January 2004, OECA initiated the “Watch List,” which tracks facilities with 

serious or chronic violations of environmental laws that have received no formal 

enforcement response. The Watch List for NPDES facilities uses existing data 

reported by EPA regions and States to PCS. 

EPA, in cooperation with State governments and the Environmental Council of 

the States, developed ECHO, which provides integrated compliance and 

enforcement information for approximately 800,000 regulated facilities 

nationwide. The site allows the public to find inspection, violation, enforcement 

action, informal enforcement action, and penalty information about facilities for 

the past 3 years. 

Scope and Methodology 

We conducted our review from January 2005 through December 2006 in 

accordance with Government Auditing Standards, issued by the Comptroller 

General of the United States. We reviewed EPA’s oversight of NPDES major 

facilities in long-term SNC using the following quality elements in EPA’s 1986 

Revised Policy Framework for State/EPA Enforcement Agreements: (1) timely 

and appropriate enforcement response, and (2) accurate recordkeeping and 

reporting. We interviewed staff in OECA and Office of Water’s Office of 

Wastewater Management. We interviewed staff in selected EPA regions, as well 

as officials and staff in selected States. 

We selected 84 of the 132 facilities in long-term SNC, according to EPA data 

systems, in EPA Regions 4, 5, and 6 for our review. We reviewed available 

compliance and enforcement files to determine their accuracy and completeness 

for the 84 NPDES facilities in long-term SNC. We utilized data from PCS and 

OTIS to determine the excess pollutant loads released from facilities in long-term 

SNC for effluent violations. We evaluated the effectiveness of management 

controls and considered findings in prior EPA Office of Inspector General (OIG) 

reports. 

Details on our scope and methodology are in Appendix A. 

5
Chapter 2

Oversight Limited at NPDES Major Facilities 

in Long-Term SNC 

EPA did not provide effective enforcement oversight of major facilities in longterm SNC with NPDES permits. EPA inconsistently interpreted guidance 

defining timely formal actions. Also, EPA’s guidance does not provide a means 

for determining the appropriateness of actions. Problems with EMS guidance 

prevented us from determining whether enforcement actions taken were 

appropriate. However, we found that for the 56 NPDES major facilities in longterm SNC reviewed:2 

• At 21 facilities, EPA and States did not take suitable formal enforcement 

actions to address SNC violations during our review period. 

• At the remaining 35 facilities, none of the actions that we could assess 

were timely based on the criteria in EPA’s EMS. 

Timely and appropriate formal enforcement actions are important to minimize 

additional pollutants from being discharged into the Nation’s waters to ensure 

protection of human health and the environment. We estimate that up to 

51 million pounds of excess pollutant loads were discharged during our review 

period by 44 facilities reviewed, and that represents loads that can be minimized. 

EPA Guidance Misinterpreted and Vague 

EPA did not consistently interpret its EMS guidance for timely actions, even 

though EMS guidance is clear with regard to timeliness. Further, EMS guidance 

is unclear regarding appropriateness of enforcement actions and is thus subject to 

interpretation. This ambiguity prevented us from evaluating the appropriateness 

of the EPA and State formal enforcement actions taken. However, we concluded 

that EPA’s ambiguous guidance may result in inconsistency in interpretations 

between regions and States. Flexibility is needed in any national enforcement 

program. Nonetheless, definitions for program fundamentals such as the 

timeliness and appropriateness of action are necessary to establish minimum 

acceptable performance and oversight. 

2

 Due to significant EPA data system errors for 27 facilities in Alabama, Michigan, and Texas, as discussed in 

Chapter 3, we could only evaluate 57 of the 84 facilities selected for review for timely formal enforcement action. 

We also eliminated one additional facility in Tennessee from our sample that was shown to be a minor facility by 

OECA. 

6
EPA Inconsistently Interprets Guidance for Timely Actions 

During our review, we were given inconsistent interpretations of what EPA 

considers timely. In a 1999 EMS memo, OECA’s water enforcement division 

director wrote that for a formal enforcement action to be considered timely, it 

must be taken by the end of the quarter following the SNC violation. In other 

words, if a facility experiences an SNC violation in February of the first quarter, 

then a formal enforcement action must be taken by the administering agency by 

June 30 of the second quarter – the last day of the quarter – to be timely. 

Although we believe the policy in the EMS memo is clear on the definition of 

“timely,” and the memo has not been rescinded, EPA allows other interpretations. 

For example: 

• In response to an earlier version of our report, EPA asserted that timely 

enforcement actions could be 60 days later than the timely definition 

above. 

• In subsequent data submissions to the OIG, EPA noted that a timely 

response must occur within 6 months of the facility appearing and 

remaining on the QNCR. This implies EPA has up to a full year from the 

time of an SNC violation to provide a response. 

EPA’s stated that “not only is there flexibility in the EMS language itself 

regarding timeliness, but the fact that the EMS is a guidance document and not a 

regulation infers flexibility.” However, that is inconsistent with written guidance 

in EMS, which provides a clear definition of timely. 

EPA Guidance Does Not Address Appropriateness of Actions 

EMS guidance states that the appropriate response to an SNC violation is 

a formal action that should ensure that the facility returns to compliance 

expeditiously, creates a deterrent effect, and is fair. However, the guidance does 

not state how expeditiously facilities should come back into compliance after an 

action is taken. In fact, EPA staff stated that “appropriate” is defined flexibly and 

a formal action can address the same violations for many years. Since EPA has 

no clear criteria, we could not determine if the formal actions taken were 

appropriate. 

We questioned whether the outcome of some formal actions was appropriate. For 

example, EPA took a formal enforcement action in 1988 against the East Chicago 

Sewage Treatment Plant.3

 According to OECA, that action “renders all effluent 

exceedances (sic) resolved pending since that time.” East Chicago has been in 

SNC for effluent violations – including pollutants such as phosphorus, chlorides, 

and sulfates – in every quarter from 1996 to June 2005. During the 3 years of our 

3

 EPA issued Pretreatment Administrative Orders on January 25, 1993, and September 20, 2004. The September 

2004 order addressed pretreatment issues found during an audit. 

7
review period, East Chicago discharged between 76,000 and 230,000 pounds of 

excess phosphorus and between 12,000,000 and 38,000,000 pounds of excess 

chlorides. We could not determine the excess loadings of sulfates. Seventeen 

years after formal action, as of June 2005, the facility still had excess discharges 

to waters that were currently impaired. 

Lack of Suitable Enforcement at 21 Facilities 

Of the 56 NPDES major facilities in long-term SNC that we were able to assess, 

EPA and States did not take suitable formal enforcement actions to address all 

SNC violations against 21 of them during the 3-year period July 2002 through 

June 2005. Some facilities received informal actions, such as letters of violation. 

According to the EMS, facilities with SNC violations must receive a formal 

enforcement action, from the administering authority, that is timely and 

appropriate, or return to compliance within the quarter following the SNC 

violation. Specifically: 

• Eight of the 21 facilities in SNC during our review had not received a 

formal action as of June 2005, according to OECA. 

• The remaining 13 facilities were operating under enforcement orders 

issued prior to the time period, but these actions did not address all 

violations for which the 13 facilities were in SNC. 

For example, the Lafayette Sewage Treatment Plant in Tennessee received formal 

action regarding only two of three pollutants for which it was in SNC. During our 

review period, this facility was in SNC for effluent violations for six quarters for 

ammonia-nitrogen, seven quarters for settleable solids, and two quarters for total 

suspended solids. The Tennessee Department of Environment and Conservation 

issued an Administrative Order in April 2002 to address ammonia-nitrogen and 

total suspended solids violations. However, the Order did not address the 

settleable solids violations. This facility discharged between 15,000 and 182,000 

pounds of excess settleable solids from July 2002 to June 2005. The facility 

discharges to a stream that is impaired for organic enrichment and low dissolved 

oxygen, and Lafayette’s excess settleable solids discharges could be further 

worsening the existing water quality impairments. 

Untimely Enforcement at 30 Facilities 

EPA and States took 57 formal enforcement actions to address SNC violations 

between July 2002 and June 2005 at 35 facilities.4

 We were able to assess 45 of 

4

 Some facilities received more than one enforcement action. Thus, a facility may have had one action judged 

untimely and another in which timeliness could not be determined. This explains the apparent inconsistency in the 

total number of facilities associated with untimely actions and actions whose timeliness could not be determined. 

A total of 35 facilities were included in the assessment. 

8
the 57 actions at 30 facilities for timeliness and, based on EMS criteria, none of 

the 45 was timely. 

For example, EPA issued an Administrative Order against ConocoPhillips 

Company on August 14, 2003, to address effluent violations for selenium 

beginning July 2002. The action was untimely because it was not taken by 

December 2002 (the end of the next quarter), as required by EMS. According to 

PCS, the facility continued to exceed selenium permit limits through June 2005. 

Our calculations show that this facility discharged about 950 pounds of selenium 

above its allowable permit level between July 2002 and June 2005. Selenium is 

toxic to aquatic life and some wildlife and harmful to humans. 

We could not determine the timeliness of the remaining 12 formal actions at 

10 facilities because available information was flawed. Specifically, the 

enforcement actions did not explain what SNC violation was being addressed or 

when the SNC violations occurred. Without this information, we would not 

determine whether the action was timely. For example, the Consent Decree 

issued against the City of Columbiana Wastewater Treatment Plant in Alabama 

on December 10, 2003, simply accelerates an existing compliance schedule for a 

Consent Order issued on March 21, 2002. This action does not directly link to an 

SNC violation. Therefore, we could not address timeliness. 

Timely Enforcement Helps Minimize Excess Pollutant Discharges 

Timely actions are important because they can help deter or minimize 

environmental impact. The sooner SNC is identified and formal enforcement 

actions taken, the sooner the excess pollution can be controlled. We estimate that 

up to 51 million pounds of excess pollutant loads were discharged from July 2002 

through June 2005 by 44 of the facilities we reviewed.5 Seventeen of those 

facilities discharged excess pollutants into already impaired waters. 

Conclusion 

EPA has not provided its regions and States with clear and consistent guidance for 

taking timely and appropriate enforcement actions. Incomplete and misleading 

guidance reduces the effectiveness of regions’ and States’ oversight of NPDES 

facilities. At the Agency level, we concluded that EPA does not provide effective 

oversight over the regions and States. Noncompliance with permit requirements 

can pose risks to human health and the environment through exposure to excess 

levels of toxic or harmful pollutants. 

5

 Due to a lack of data in EPA’s data system, we could only calculate a range of pollutant discharges for some 

facilities. See Appendix A for more details. 

9
Recommendation 

We recommend that the Assistant Administrator, Office of Enforcement and 

Compliance Assurance: 

2-1 Clarify and implement the EMS guidance to ensure that timely and 

appropriate formal enforcement actions are taken against NPDES facilities 

in SNC. 

Agency Comments and OIG Evaluation 

EPA agreed to clarify the EMS guidance by rescinding the 1999 OECA 

memorandum in conflict with the EMS. EPA’s planned action is to eliminate the 

guidance that clarifies when timely enforcement action should be taken. While 

reducing the ability to measure the effectiveness of enforcement actions increases 

the flexibility to define all actions as timely, it does not meet the intent of the 

recommendation. EPA’s detailed response and OIG’s evaluation are in 

Appendices B, C, and D. The OIG has incorporated technical corrections and 

clarifications from EPA’s response into the final report as appropriate. 

10
Chapter 3

Incomplete and Inaccurate Records and Reporting 

Inhibit EPA Oversight of NPDES Major Facilities 

Records of compliance and enforcement activities were often incomplete and 

inaccurate. Specifically: 

• Many region and State files were incomplete. 

• Data in EPA’s information systems were incomplete and inaccurate. 

• Regions and States did not report inspection-related violations in PCS, 

although EPA required such reporting. 

An accurate history of the compliance and enforcement activities at a facility is 

important for oversight and making future enforcement decisions. The lack of 

accurate information inhibits EPA’s ability to provide effective oversight to 

NPDES major facilities and thus protect human health and the environment from 

excess levels of toxic or harmful pollutants. During our review, we also found 

that bacteria exceedances are not required to be reported as SNC, but we think 

such reporting should be considered. 

Compliance and Enforcement Files Incomplete 

Many EPA and State compliance and enforcement files were incomplete for 

NPDES major facilities. We reviewed EPA and State files to determine if they 

were complete by comparing enforcement information from EPA and State file 

reviews to formal enforcement actions listed in PCS/OTIS. Some of the 

information in the compliance and enforcement files did not match the 

information recorded in EPA’s data systems. Table 3-1 on the following page 

shows the results of comparing enforcement files with EPA’s data system 

information. Additionally, 12 formal enforcement actions in the EPA and State 

files were not listed in EPA’s data systems. We also found one action listed in 

OTIS for which we could find no other evidence in either PCS or EPA and State 

files. Incomplete files and data systems prevent EPA from having the needed 

information to provide effective oversight. 

11
Table 3-1: Completeness of EPA and State Enforcement Files 

Region State 

Actions 

reported by 

PCS/OTIS 

No. of those 

actions found 

in EPA files 

Percent 

complete 

No. of those 

actions found 

in State files 

Percent 

complete 

Region 4 Alabama 

Tennessee 

8 

7 

5 

4 

63% 

57% 

8 

4 

100% 

57% 

 Total 15 9 60% 12 80% 

Region 5 Indiana 4 2 50% 1 25% 

Michigan 4 2 50% 1 25% 

 Total 8 4 50% 2 25% 

Region 6 Oklahoma 12 10 83% 5 (of 9)* 55%* 

Texas 22 12 55% 5 (of 10)* 50%* 

 Total 34 22 65% 10 (of 19)* 53%* 

*When calculating completeness of State files, we did not consider actions taken against facilities for which 

EPA retains primary enforcement authority. 

Source: EPA OIG review 

EPA’s Enforcement Data Systems Inaccurate 

EPA’s data systems used to track NPDES enforcement program are inaccurate. 

EPA’s data systems do not accurately reflect the SNC status of facilities. Once a 

formal enforcement action is issued for an SNC violation, a facility should be 

designated as “resolved pending” for that violation, according to Title 40, Code of 

Federal Regulations, Section 123.45. However, OECA states that Regions 4, 5, 

and 6 (the three regions reviewed) do not designate facilities in “resolved 

pending.” Thus, facilities in these regions may appear to remain in SNC status in 

EPA’s data systems for a long time despite operating with an existing 

enforcement action. 

EPA’s data system incorrectly classified Michigan facilities in SNC for DMR 

violations due to data system errors in Michigan. These errors have existed since 

2003. EPA’s PCS data system showed that 30 facilities from Michigan were in 

long-term SNC. However, OECA reviewed the facilities’ status and determined 

that 27 of the facilities were not actually in SNC.6

 OECA stated that Michigan 

was having problems entering DMR information into PCS in a timely manner. 

Staff from Michigan Department of Environmental Quality also noted that their 

data system was not capable of correctly communicating with PCS and that SNC 

data was not available through their system at the time we interviewed them. 

However, the data entry and transmission problems continue, which seriously 

compromises EPA’s oversight of Michigan’s NPDES facilities. 

6 We excluded 25 Michigan facilities with significant data errors from our analysis. Two other facilities, one from 

Alabama and one from Texas, were also excluded for similar reasons. See Appendix A for more details. 

12
In a related matter, EPA staff stated that once a facility receives a violation for 

submitting DMRs late, that violation will continually show as a violation in 

EPA’s data systems until regions or States manually correct the problem. EPA 

needs to ensure its data systems are accurate so it can provide proper oversight to 

regions and States. 

Many Violations Found During Inspections Not Reported in PCS 

Despite EPA requirements, most EPA regions and States do not enter into PCS 

violations found during inspections. OECA reported that no States in EPA 

Regions 1, 2, 5, 7, 9, and 10 reported these violations in Fiscal Year 2005. 

Inspections allow EPA and States to determine the reliability of the permittee’s 

self-reported data and evaluate compliance with permit conditions and applicable 

regulations. Entering these violations into PCS allows EPA and States to track 

these violations and report them. 

EPA currently requires data entry of violations found during inspections (called 

single-event violations) for NPDES major permittees in PCS in the single event 

category. However, most States are not performing this procedure. Staff from 

EPA Region 4 stated that EPA does not ensure that States enter single event 

violation data from inspections. Staff from EPA Regions 5 and 6 acknowledged 

that entry of single event violations is required. Failing to enter inspection-related 

violations in PCS may prevent these types of violations from being identified and 

acted upon. 

Bacteria Not Reported as SNC 

We noted numerous and significant exceedances of bacteria permit limits at 37 of 

84 facilities we reviewed. Almost 75 percent of the exceedances would be 

classified as SNC using the criteria for conventional pollutants. The 

violations ranged up to 59,000 percent of the permit limit. None of these 

violations was reported as SNC in PCS or OTIS because bacteria are not a 

pollutant subject to SNC criteria. Since these violations are not classified as SNC, 

they would likely not be reported on the QNCR that regions and State use to 

address facilities with significant violations. 

Although SNC reporting is not required, bacteria are a leading cause of water 

quality impairments across the nation. When present at levels exceeding water 

quality standards, bacteria can make swimmers ill and contaminate shellfish for 

human consumption. Our review only discovered the significant bacteria 

violations because those facilities had SNC violations for other pollutants. In the 

absence of other SNC violations, EPA and States may not address significant 

bacteria violations. 

Because this issue was outside the scope of our review of long-term SNC, we did 

not conduct a separate review focused on the extent of bacteria-only violations 

13
and the adequacy of the response to them. However, it is enough of a concern 

that it warrants further review by OECA. 

Conclusion 

While EPA has overall responsibility for implementing and overseeing the 

NPDES program, EPA generally has to rely on the States for information. EPA 

cannot attest to the reliability of records and data for those facilities in long-term 

SNC. Incomplete and inaccurate records and information represent a 

management control weakness. EPA cannot rely on NPDES enforcement and 

compliance data from its internal systems being complete or accurate. Also, 

enforcement and compliance records maintained by regions and States are 

incomplete and inaccurate. OECA needs to implement a quality assurance 

program that, at a minimum: 

• Assesses accuracy of region and State compliance and enforcement files. 

• Verifies status of facilities in SNC. 

• Verifies that formal actions taken are correctly entered into EPA systems. 

• Assures reporting issues (with Michigan and others) are resolved or reports 

annotated to disclose known inaccuracies. 

• Verifies that all EPA regions and States are entering violations found as a 

result of inspections in PCS. 

Recommendations 

We recommend that the Assistant Administrator, Office of Enforcement and 

Compliance Assurance: 

3-1 Implement a quality assurance program addressing the completeness of 

compliance and enforcement files, accuracy of EPA data systems, and 

reporting in PCS the violations found during inspections. 

3-2 Establish controls allowing EPA leadership to identify significant 

noncompliance by bacteria-only violators for enforcement action. 

Agency Comments and OIG Evaluation 

EPA generally concurred with our recommendations. However, OECA’s 

response that its existing actions and processes provide a reasonable amount of 

quality assurance is not responsive to Recommendation 3-1. We consider the 

issue unresolved. For Recommendation 3-2, we accept OECA’s response. 

OECA will need to provide us with an action plan and milestone dates for when 

the proposed actions will occur. EPA’s detailed response and OIG’s evaluation 

are in Appendices B, C, and D. The OIG has incorporated technical corrections 

and clarifications from EPA’s response into the final report as appropriate. 

14
Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Rec. 

No. 

Page 

No. Subject Status1 Action Official 

Planned 

Completion 

Date 

Claimed 

Amount 

Agreed To 

Amount 

2-1 

3-1 

3-2 

10 

14 

14 

Clarify and implement EMS guidance to ensure 

that timely and appropriate formal enforcement 

actions are taken against NPDES facilities in SNC. 

Implement a quality assurance program addressing 

the completeness of compliance and enforcement 

files, accuracy of EPA data systems, and reporting 

in PCS the violations found during inspections. 

Establish controls allowing EPA leadership to 

identify significant noncompliance by bacteria-only 

violators for enforcement action. 

U 

U 

O 

Assistant Administrator, 

Office of Enforcement and 

Compliance Assurance 

Assistant Administrator, 

Office of Enforcement and 

Compliance Assurance 

Assistant Administrator, 

Office of Enforcement and 

Compliance Assurance 

O = recommendation is open with agreed-to corrective actions pending;

C = recommendation is closed with all agreed-to actions completed;

U = recommendation is undecided with resolution efforts in progress 

15

1 
Appendix A 

Details on Scope and Methodology 

We conducted our review from January 2005 through December 2006 in accordance with the 

Government Auditing Standards, issued by the Comptroller General of the United States. 

We interviewed staff in OECA and the Office of Water’s Office of Wastewater Management to 

determine applicable compliance and enforcement guidance and criteria for EPA regions and 

States. We reviewed NPDES major facilities in long-term SNC. We classified facilities as being 

in long-term SNC if they had been in SNC for 8 of 12 quarters from the third quarter of 2002 to 

the second quarter of 2005 in PCS. However, due to continual updating of EPA data systems, 

7 of the facilities selected were classified in SNC for only 7 of 12 quarters by the end of our field 

work. 

We selected EPA Regions 4, 5, and 6 for review because they have the highest concentration of 

NPDES major permits with 3,506 facilities (55 percent of the universe). Further, of EPA’s 

10 regions, they are ranked high in the number of long-term SNC facilities (see Table A-1). 

Table A-1: Number of SNC Facilities/Ranking of Regions 

Regions 

No. of Long-Term 

SNC Facilities Ranking 

Region 4 38 4th 

Region 5 51 2nd 

Region 6 43 3rd 

Source: EPA OIG Review 

Although EPA Region 2 had the highest number of long-term SNC facilities, many were in the 

territory of Puerto Rico, and we chose not to review that region due to travel and time 

constraints. We interviewed staff in all three regions selected for review. We also interviewed 

EPA Region 7 staff during the preliminary research phase of our review. 

We reviewed 84 of the 132 facilities in long-term SNC in EPA Regions 4, 5, and 6 according to 

PCS. These 84 facilities represent about 1.3 percent of the total number of active NPDES major 

facilities from 2002 through 2005. We selected facilities by choosing two States from each of 

the three EPA regions reviewed (see Table A-2). We interviewed staff in those States to gather 

information about compliance and enforcement programs. 

Table A-2: Facilities Reviewed by State 

Regions States 

No. of Facilities 

Reviewed 

Region 4 Alabama 8 

 Tennessee 12 

Region 5 Indiana 8 

 Michigan 30 

Region 6 Oklahoma 4 

Texas 22 

Source: EPA OIG Review 

16 
We reviewed compliance and enforcement files for 84 NPDES facilities in long-term SNC. We 

reviewed files to confirm enforcement actions taken by EPA and States as reported in PCS and 

OTIS, determined whether timely formal enforcement actions were taken at facilities, and 

determined the completeness of the compliance and enforcement files. To do this, we verified the 

SNC status and formal actions taken at each facility through OTIS. We relied on the 

classification system in PCS and OTIS to indicate whether an action was formal or informal. 

During file reviews, we documented only those actions classified as formal – such as 

administrative orders and consent orders – and compared them to information from PCS and 

OTIS to confirm that our data were complete. Finally, we compared the formal actions taken 

against each facility with the facility’s SNC status in PCS and OTIS to determine if timely 

formal enforcement actions were taken consistent with criteria from EPA’s EMS document. 

We could not assess the appropriateness of enforcement actions because the EMS does not state 

how expeditiously facilities should come back into compliance after an action is taken. This 

ambiguity prevented us from evaluating the appropriateness of the EPA and State formal 

enforcement actions taken. 

Of the 84 initial facilities we evaluated, 25 of the 30 facilities in Michigan were excluded from 

our timeliness analysis due to EPA data system errors. Additionally, one facility each in Texas 

and Alabama were excluded for similar issues. We also excluded one facility because it was a 

minor facility even though OECA’s data systems showed it as a major facility in SNC. We 

analyzed the remaining 56 facilities to determine if timely formal enforcement actions were 

taken to address SNC. Due to EPA data system inaccuracies, 2 of the 56 facilities that were 

classified as major facilities in PCS were actually minor facilities for part of our 3-year 

evaluation period. As such, we evaluated these facilities only for that period of time when the 

facilities were considered major facilities. 

Because 21 facilities did not have actions taken during our review period, we only identified and 

analyzed formal enforcement actions at the remaining 35 facilities. We reviewed 69 actions 

from these 35 facilities. We excluded 12 of those 69 actions from our analysis for timeliness 

(8 addressed sludge or sludge reporting violations that were not directly related to the SNC 

violations, 3 addressed citizen complaints at specific facilities, and 1 represented a parallel action 

that allowed the State to assume primary enforcement authority from EPA). Thus, we evaluated 

57 formal actions. 

To evaluate timeliness for the 57 formal actions, we reviewed each individual action found 

during the file reviews and from OTIS to determine the following information: (1) the date the 

formal action was taken, (2) the specific SNC violations the action addressed, and (3) the dates 

the violations occurred. We then determined the length of time between the dates the actions 

were taken and the dates the violations occurred. We compared the violations and formal actions 

to the 3-year compliance status history as shown in OTIS for each facility on a quarterly basis. 

We compared the length of time between violation and action with EPA’s EMS criteria for 

timeliness. If the length of time exceeded the time period allowed by the criteria, the action was 

found to be untimely. Although we conducted an extensive file review on each facility, we did 

not have enough information on 12 formal actions to determine whether they were timely. 

17
We analyzed data from OTIS and PCS to determine the excess pollutants released from facilities 

in long-term SNC for effluent violations. We calculated the excess pollutant load by 

determining the pollutant load each facility is permitted to discharge and subtracting that load 

from the pollutant load each facility actually discharged when it violated its permit limits. We 

determined the pollutant load actually discharged from facility DMR information by multiplying 

the actual effluent flow times the actual effluent pollutant concentration times a constant of 8.34. 

EPA uses this formula to determine mass-based permit limitations and was reviewed by staff 

from EPA’s Office of Wastewater Management. We calculated the permitted pollutant load for 

each facility using the same formula and each individual facility’s pollutant permit limits. We 

summed the daily excess pollutant loads for each facility over the 3-year time period from the 

third quarter of 2002 through the second quarter of 2005. 

In certain cases, OTIS did not report actual effluent pollutant concentrations. However, the 

percentage by which the permit limit was exceeded was reported in OTIS. In this case, we backcalculated the actual effluent pollutant concentration using the pollutant permit limit and the 

percentage by which the permit limit was exceeded as reported by PCS. Since the percentage 

exceedance is calculated by PCS automatically using the data as reported by each facility on its 

DMRs, this method did not compromise the accuracy of the actual effluent pollutant 

concentration. Five of the 84 evaluated facilities were listed as SNC for effluent violations, but 

OTIS had no information indicating which effluent limits were violated or by what percentage. 

For this reason, we did not include those five facilities in our analysis. 

Due to varying availability of information for each facility, we calculated both minimum and 

maximum excess pollutant loads. If the required information for each facility – including design 

and actual reported flows, permit effluent limits, and actual effluent concentrations – was 

available in the detailed facility reports from PCS, then it was not necessary to determine 

minimums and maximums. However, if the only information available was the design flow, 

permit limit, and the percentage by which the facility exceeded its permit limit from the detailed 

facility report, then we calculated both minimum and maximum excess pollutant loads. This is 

because the 3-year compliance status by quarter only lists the highest monthly percentage by 

which the facility violated its permit limits in that quarter. The magnitude of any violations in 

other months for that quarter was unknown. Both minimum and maximum excess pollutant load 

were calculated to account for this uncertainty. 

While interviewing EPA region and State staff, we also sought to obtain information on what 

tools and best practices are available to help address facilities in long-term SNC. 

Management Controls 

We identified the following management controls as applicable to our objectives: 

Effectiveness of Program Operations: We evaluated the effectiveness of the 

compliance and enforcement program by determining if EPA and States were providing 

timely and appropriate enforcement actions to facilities in long-term SNC, and if EPA 

provided effective oversight to selected regions and States. Details on what we found are 

in Chapter 2. 

18
Validity and Reliability of Data: We evaluated the validity and reliability of PCS/OTIS 

data by comparing it with the data found in EPA regions and State files. We compared 

the number and types of formal enforcement actions in PCS/OTIS for the 84 facilities we 

reviewed with the information found in EPA and State files. Details on what we found 

are in the Chapter 3. 

Compliance with Applicable Laws and Regulations: In our evaluation, we determined 

whether regions and States were following EMS guidance in addressing facilities in SNC 

with timely enforcement actions. We found problems in the guidance provided. Details 

on what we found are in Chapter 2. 

Prior Coverage 

We reviewed the following prior EPA OIG audits as they pertained to our review: 

• Water Enforcement: State Enforcement of Clean Water Act Dischargers Can Be 

More Effective, 2001-P-00013, August 14, 2001. 

• North Carolina NPDES Enforcement and EPA Region 4 Oversight, 2000-P-00025, 

September 28, 2000. 

• Kansas National Pollutant Discharge Elimination System Program, E1HWF7-07-

0022-8100089, March 31, 1998. 

• Region 10's National Pollutant Discharge Elimination System Permit Program, 

E1HWF7-10-0012-8100076, March 13, 1998. 

19
Appendix B 

Overall Agency Comments 

 March 30, 2007 

MEMORANDUM 

SUBJECT: OECA Comments on Draft Report, “Better Oversight Needed for Major 

Facilities with Water Discharge Permits in Long-Term Significant 

Noncompliance” 

FROM: Granta Y. Nakayama

 Assistant Administrator 

TO: Dan Engelberg 

 Director, Water Issues, Office of Program Evaluation 

Office of Inspector General 

The Office of Enforcement and Compliance Assurance (OECA) appreciates the opportunity 

to review and comment on the February 28, 2007 Office of Inspector General (OIG) draft report 

titled, “Better Oversight Needed for Major Facilities with Water Discharge Permits in LongTerm Significant Noncompliance.” This draft report was revised after OIG received OECA’s 

extensive comments in October 2006 on its initial August 2006 draft report. The revised draft is 

an improvement over the initial draft. However, despite exhaustive efforts by OECA and 

Regional staff to provide well-documented comprehensive comments and to be available for 

follow-up consultation, significant factual inaccuracies and misinterpretations remain. These 

undermine the credibility of OIG’s analysis and diminish the value of its recommendations. 

These include: 

• Inaccurate Interpretation of National EPA Enforcement Guidance and Policy. Despite 

OECA’s attempts to clarify the operation of its guidance and policy, OIG fails to 

recognize the difference between regulatory requirements and EPA guidance and, as a 

result, applies EPA’s timely and appropriate enforcement response guidelines as a rigid 

requirement. OIG’s draft report fails to consider the deliberate flexibility provided to 

Regions and states in EPA’s guidance resulting in inaccurate OIG findings such as, “at 22 

of the 57 facilities reviewed, EPA and the states did not take sufficient formal 

enforcement action,” and “at the remaining 35 facilities, none of the actions were timely.” 

In stark contrast, OECA’s assessment of the 57 facilities indicated that the vast majority 

(approximately 53 or 93%) of facilities included in the OIG review received an adequate 

response to address the SNC violations. 

• Inaccurate Data Analysis. At least seven facilities (three in Region 4 and four in Region 

6) should not have been included in OIG’s analysis because they were not classified as 

20
major facilities during all or part of the evaluation period and, therefore, would not have 

been screened for SNC violations by EPA. A request for change in a facility’s status is 

submitted in writing from a Region to OECA’s Office of Compliance. Status change 

dates are not archived in EPA’s Permit Compliance System (PCS) or Facility Registry 

System; they are documented in manual files maintained in the Regional offices. OECA 

provided information on this issue in its October 2006 response to OIG’s original report, 

yet OIG did not remove these facilities from its February 2007 draft report. OIG 

continued to misinterpret data in its analysis and inaccurately concluded that these 

facilities were majors. In other instances, OIG failed to acknowledge that many SNC 

violations reviewed were already addressed under existing enforcement orders and 

compliance schedules (i.e., the facility was in “resolve pending” status in PCS), and thus 

did not require any additional enforcement. Lastly, facilities were included in the 

analysis even though a known state-wide data system problem resulted in incorrect SNC 

determinations. 

• No Acknowledgement of Ongoing Efforts to Improve Records and Reporting. OIG’s 

draft report fails to consider OECA’s ongoing efforts to work with Regions and states, 

through the State Review Framework (SRF), the Watch List, and ECHO processes, to 

improve record keeping and reporting associated with compliance monitoring and 

enforcement activities. OECA believes that its existing efforts are responsive to OIG 

recommendation 3-1 to implement a quality assurance program addressing the 

completeness of compliance and enforcement files and recommendation 3-2 to address 

significant bacteria violations. By not recognizing these recent efforts to establish better 

management controls and accountability, the draft report leaves the impression that 

OECA is not actively addressing issues such as timely enforcement and accurate 

recordkeeping of enforcement files. 

Despite numerous concerns with the underlying analysis in this draft report, OECA largely 

accepts OIG’s three recommendations and, as noted in the bullet above, is already implementing 

two out of the three recommendations. Of the remaining recommendation, 2-1, to clarify and 

enforce EMS guidance, OECA is prepared to implement the part of the recommendation that will 

clarify the guidance. In response, OECA commits to rescind the 1999 OECA memorandum that 

conflicts with the NPDES Enforcement Management System (EMS). This will be discussed 

with the Regional NPDES Enforcement Branch Chiefs at the national NPDES meeting in April, 

2007. OECA does not, however, concur with the balance of recommendation 2-1, to enforce the 

EMS, as the EMS does not impose a set of enforceable standards. 

This draft report reflects continuing problems with the overall OIG evaluation process, 

including: poor communication during the analysis leading to the use of incomplete and/or 

inaccurate information, broad findings that are not supported by the data used, lack of 

acknowledgment of ongoing efforts by OECA, Regions, and states to address the problem being 

evaluated, exclusion of relevant information which would directly impact findings and 

recommendations, and failure to weigh the benefits of OIG’s recommendations against the 

resource burdens and procedural barriers they will entail and the competing needs and demands 

they will displace. A specific example of poor communication during this evaluation is the fact 

that even after receiving detailed written comments from OECA and having face-to-face 

21
meetings to discuss those comments, OIG staff never contacted EPA staff with any follow-up 

questions or clarifications in the course of re-writing the draft report. OECA would like to work 

with the OIG to improve communication and the overall evaluation process. 

Attached are OECA’s detailed comments on the analysis, findings, and recommendations in 

the February 28, 2007 draft report. If you have any questions, please call Mark Pollins at 

202-564-4001. 

Attachments 

cc: Walker Smith, OCE 

 Randy Hill, OCE 

Mark Pollins, OCE 

Michael Stahl, OC 

 Lisa Lund, OC 

David Hindin, OC 

Doug Mundrick, Region 4 

Cheryl Newton, Region 5 

Mike Michaud, Region 6 

22
Appendix C 

OIG Evaluation of Overall Agency Comments 

OECA took issue with the overall OIG evaluation process, expressing concerns about the 

conclusions reached in analysis, poor communications during the evaluation, and the belief that 

data collected was incomplete or inaccurate. OECA also disagreed with the OIG assessment that 

its oversight needed improvement. Specifically OECA stated that: 

• OIG inaccurately interpreted National EPA Enforcement Guidance and Policy. 

• OIG included facilities that were not classified as major facilities during all or part of the 

evaluation period. 

• OIG did not acknowledge OECA’s ongoing efforts to improve its records and reporting. 

Despite OECA’s numerous concerns with the underlying analysis, OECA stated it generally 

accepted OIG’s recommendations and was in the process of implementing them. OECA’s 

detailed responses, along with the OIG’s evaluation, are provided in Appendix D. 

The detailed OECA response focuses on denying existence of oversight issues, while agreeing to 

implement most of the recommended actions. OECA’s criticism of the evaluation for poor 

communication and faulty analysis is rooted in OECA’s rationale that written policies can be 

ignored or interpreted to allow OECA “flexibility” to claim timely and appropriate performance 

under almost all circumstances. OIG understands OECA’s rationale; we simply do not accept 

that it is valid. OIG’s conclusion that OECA has not acted in a timely manner is based on 

written policy and criteria that OECA prefers to ignore. In fact, one of OECA’s corrective 

actions will be to rescind the policy memorandum clarifying the standard for timely enforcement. 

The OECA response is illustrative of the control environment that allowed the conditions 

addressed in the report to exist. Management is responsible for communicating the objectives of 

internal control and ensuring the organization is committed to sustaining an effective internal 

control environment. Management’s philosophy and operational style set the tone within the 

organization culture. Culture is defined by management’s leadership in setting values of 

integrity and ethical behavior but is also affected by the relationship between the organization 

and central oversight agencies. Management’s commitment to establishing and maintaining 

effective internal control should cascade down and permeate an organization’s control 

environment, which aids in the successful implementation of internal control systems. In our 

opinion, the OECA response is a reflection of weakness in the overall management control 

environment of the organization. 

Inaccurate Interpretation of National EPA Enforcement Guidance and Policy 

This is a disagreement over how to measure EPA’s effectiveness ensuring the compliance with 

the Clean Water Act and how accountable for achieving results it is. EPA’s desire for total 

flexibility undermines the use of internal controls to ensure timely and appropriate enforcement 

response. OECA interprets the national enforcement guidance and policy, EMS, as granting it 

23
total flexibility about when and how to enforce against significant noncompliance. Using this 

interpretation, OECA concluded that its response was “adequate” 93 percent of the time. 

We carefully applied OECA’s own guidance set out in the EMS to determine how well EPA 

regions and States are fulfilling their enforcement responsibilities. The EMS represents OECA’s 

own enforcement principles for EPA regions and States. The EMS provides clear and consistent 

guidance on what constitutes a timely enforcement response. In brief, the EMS states that a 

formal enforcement response must be taken before the end of the quarter following the quarter in 

which EPA and/or States designate a facility in SNC. The memorandum OECA wants to rescind 

clarifies this point. 

Inaccurate Data Analysis 

OECA’s response actually addresses the inaccurate data in their systems, rather than inaccurate 

data analysis on the part of OIG. OECA objected to the records of some of the facilities we 

included in our sample taken from their data system, PCS. We agree with OECA that their 

systems contain inaccurate data and recommended that they develop a quality assurance program. 

OECA requested that seven facilities in our review should be removed. We will remove one of 

the seven. Decherd WWTP in Tennessee was not designated a major discharger until after our 

study period. We have removed Decherd from our findings. We had included this facility in our 

study because EPA listed this minor facility as being in SNC during our study period in the PCS 

database. Also, Windermere and Munford Lagoon were not major facilities during all of our 

review period although PCS showed them in significant noncompliance during that time. Both 

facilities were in significant noncompliance for at least three quarters after they became majors. 

Since the facilities did not receive timely action while they were major facilities, we will keep 

them in our analysis. We disagree with EPA about the other four facilities. 

OECA stated that we failed to acknowledge many SNC violations reviewed that were already 

addressed under existing enforcement orders and compliance schedules. On the contrary, we 

considered whether a facility was in “resolved pending” as indicated by EPA data systems and 

data submitted to us by OECA. 

OECA also stated that we retained several facilities in our review in spite of a known state-wide 

data system problem that resulted in incorrect SNC determinations. Again, we disagree. We did 

not evaluate the timeliness of enforcement actions at 25 of the 30 Michigan facilities due to the 

state-wide data problem. According to Region 5 staff, Michigan’s data system problems related 

only to discharge monitoring reporting and compliance schedule reporting. For that reason, we only 

included facilities in our analysis that had other types of violations. The five Michigan facilities we 

analyzed had effluent violations for at least two consecutive quarters. Even though we did not 

evaluate the timeliness of enforcement actions at the 25 facilities, we did report on the obvious 

oversight problems that exist from a State having system with unreliable data for several years. 

No Acknowledgement of Ongoing Efforts to Improve Records and Reporting 

We included the efforts OECA mentioned in its response in the Noteworthy Achievements 

section of the report. 

24
Appendix D 

Detailed Agency Comments and OIG Evaluation 

# 

OECA Response, 

Section/Page 

OECA Comments 

(Attachment 1 of its response) OIG Response 

1 At a Glance, 

page 1 

OECA’s specific responses to each of the 

findings and recommendations are detailed 

below. The description of the 

recommendations should be modified 

accordingly. 

See responses below. 

2 At a Glance, 

page 1 

OECA questions the accuracy of OIG's 

estimate of the pounds of excess pollutant 

released. As discussed below, there is 

sufficient reason to believe that the OIG's 

selection of facilities used to calculate a 

hypothetical estimate of pollutants discharged 

is flawed due to OIG's inaccurate 

interpretations of EPA's national enforcement 

guidance. Further, the OIG erroneously 

assumes that when an enforcement action is 

concluded, compliance is immediate. 

• To illustrate, the OIG presents an 

estimate of the range of pollutants in 

excess of permit limits released by using 

data calculated for 45 facilities that the 

OIG found to be in SNC for the 3-year 

period from July 2002 through June 2005. 

However, many of these facilities were 

operating under consent orders that 

provided a schedule for return to 

compliance. As violating facilities 

complete the necessary plant upgrades 

allowing them to meet the original permit 

limits, pollutant reductions are achieved. 

Because of the infrastructure changes that 

are often needed to correct compliance 

problems, the OIG cannot expect that 

pollutant reductions will be immediately 

gained upon completion of an 

enforcement action. 

Our selection of facilities used to calculate 

the estimate of pollutants discharged was 

not flawed. Our estimates of excess 

pollutants released represent actual effluent 

pollutant concentrations as reported by 

NPDES facilities and recorded in EPA’s 

database, OTIS. 

We analyzed data from OTIS and PCS to 

determine the excess pollutants released 

from facilities in long-term SNC for effluent 

violations. We calculated the excess 

pollutant load by determining the pollutant 

load each facility is permitted to discharge 

and subtracting that load from the pollutant 

load each facility actually discharged when 

it violated its permit limits. We determined 

the pollutant load actually discharged from 

facility DMR information by multiplying 

the actual effluent flow times the actual 

effluent pollutant concentration times a 

constant of 8.34. EPA uses this formula to 

determine mass-based permit limitations 

and was reviewed by staff from EPA’s 

Office of Wastewater Management. We 

calculated the permitted pollutant load for 

each facility using the same formula and 

each individual facility’s pollutant permit 

limits. We summed the daily excess 

pollutant loads for each facility over the 

3-year time period from the third quarter of 

2002 through the second quarter of 2005. 

As such, our estimates would implicitly 

consider any reductions being achieved as a 

result of consent orders or plant upgrades. 

Our analysis does not expect that pollutant 

reductions are the immediate result of 

enforcement actions. We did the analysis to 

determine the impact on the environment 

when a facility is not in compliance with its 

NPDES permit. It may take years for a 

facility to come back into compliance under 

25
# 

OECA Response, 

Section/Page 

OECA Comments 

(Attachment 1 of its response) OIG Response 

a consent decree. During that time, a 

facility with effluent violations is still 

discharging pollutants into the water above 

its permitted limits. 

3 At a Glance, 

page 1 

There is an error in the shaded background 

summary - EPA "authorizes" (not "delegates") 

states to administer the NPDES program. 

The final report was revised to reflect this 

comment. 

4 Chapter 1, page 1 EPA Oversight of NPDES Compliance and 

Enforcement Program, p. 2: The placement of 

the statement, "EPA is expected to take formal 

enforcement action when states fail to take 

timely and appropriate action" in the first 

paragraph of this section, which discusses 

Clean Water Act (CWA) authority and the 

NPDES program, implies that the CWA 

mandates when EPA shall take enforcement 

action. The CWA does not address this issue. 

The statement itself is an accurate 

representation of information presented in 

the EMS. The statement was moved to the 

section discussing the EMS criteria on 

page 3. 

5 Chapter 1, 

pages 1-2 

Furthermore; the statement inaccurately 

represents EPA guidance on this issue (see the 

August 25, 1986 James Barnes Memorandum 

to the Regions, "Revised Policy Framework 

for State/EPA Enforcement Agreements 

(Barnes Memo)). The Barnes Memo 

recommends consultation with a state to 

determine whether the state is moving 

expeditiously to resolve the violation -- it does 

not contemplate automatic formal Federal 

action once a recommended deadline for state 

action has passed. The Memo specifies that 

timeframes are not intended to be rigid 

deadlines for action. It explains that because 

authorized states have primary responsibility 

and EPA clearly does not have the resources 

to take action on or review in detail any and 

all violations, EPA will circumscribe its 

actions to certain cases and areas and will take 

action based on specific listed factors in the 

Memo. Further, the Barnes Memo 

acknowledges that because EPA will not, in 

most cases, receive real time data, Regions are 

not expected to be able to take direct 

enforcement action following the exact same 

timeframes as those that apply to the 

administering agency. Finally, the Barnes 

Memo does not require formal enforcement 

action in every instance. The Memo 

establishes that an appropriate response is to 

be determined by the administering agency 

based upon a consideration of what is needed, 

and that the form of the enforcement response 

must achieve compliance. The redraft 

suggested below is an accurate interpretation 

of EPA guidance and does not imply, as does 

OIG's draft language, that immediate federal 

The EMS was finalized in 1989, at least 

2 years after the Revised Policy Framework 

for State/EPA Enforcement Agreements 

(Barnes Memo). The EMS constitutes a 

system for translating compliance 

information into timely and appropriate 

enforcement actions. Also, EMS provides 

the flexibility for each administering agency 

to develop management procedures which 

are best suited to its operations and 

resources with the goal of most efficiently 

translating compliance information into 

timely and appropriate enforcement action. 

Thus, the flexibility desired by OECA was 

implicitly considered during development of 

the EMS and the language regarding timely 

and appropriate formal enforcement actions 

to address SNC violations. 

Any ambiguity regarding timely and 

appropriate language in the EMS was 

resolved in an October 6, 1999, OECA 

memorandum that provided the Water 

Enforcement Division’s official 

interpretation of the EMS’s language 

regarding the “begin date” for the period 

allowed for a timely and appropriate 

enforcement response to a SNC violation. 

The memo further states that EMS requires 

that a formal action must be taken to 

prevent the SNC violation from being 

reported on a second QNCR and, under 

QNCR rules, this can be accomplished only 

if the enforcement action is taken during 

this "following" quarter. Further, the use of 

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action is required when the period for timely 

state actions has passed, or that such action 

must be formal. 

• Delete "EPA is expected to take formal 

enforcement action when states fail to 

take timely and appropriate action" from 

first paragraph on page 2." 

• Add new paragraph after the two bullets 

in the second paragraph of this section 

that includes "EPA's guidance indicates 

that EPA may consider taking direct 

enforcement action where: a state 

requests EPA action, where the state 

enforcement response is not timely or 

appropriate, in cases or program areas 

setting national precedents, or where 

there is a violation of an EPA order or 

consent decree. In deciding whether to 

take enforcement EPA will consider 

whether: the case is nationally significant, 

risk or damage to the environment or 

public health is significant, the violator 

stands to gain significant economic 

benefit, or there are repeat patterns of 

violations and violators." 

• Add a new paragraph for remaining text 

beginning, "Compliance with the nation's 

environmental laws. . ." 

this “begin date” is consistent with the 

timeframe for violation status calculations 

PCS makes for the QNCR and SNC. 

No change made. 

6 Chapter 1, page 2 Types of Noncompliance, p. 2: OIG's 

description of the QNCR regulations does not 

distinguish between reportable noncompliance 

(RNC) and significant noncompliance (SNC). 

Reporting RNC at NPDES majors is a 

regulatory requirement. Identifying, 

addressing, and tracking SNC violations (a 

subset of RNC) is not a regulatory 

requirement - it is a management tool used to 

prioritize violations and focus enforcement 

resources. In contrast to a regulatory 

requirement, there is inherent flexibility – by 

design -- in the application of a 

policy/management tool. 

• "Revise citation as follows” . . . 

Section 123 .45(a)(2)." 

The report was revised to include the 

detailed citation. 

7 Chapter 1, 

pages 2-3 

Enforcement Management System Criteria, p. 

3: In this chapter, OIG acknowledges the 

flexibility within the EMS for the permitting 

authority to exercise discretion in deciding 

which of a range of possible responses (no 

response, informal action, formal action) to 

take in addressing violations, including SNC 

violations. That acknowledgment does not 

carry through the end of page 3 or through the 

According to the EMS, facilities with SNC 

violations must receive a formal 

enforcement action from the administering 

authority that is timely and appropriate, or 

return to compliance within the quarter 

following the SNC violation. If formal 

action is not taken, the State or EPA is 

expected to produce a written record clearly 

justifying why an alternative action (other 

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rest of the draft report. For example in 

numerous places on pages 6 - 8, OIG's 

findings are based solely on whether "formal" 

enforcement actions were taken – in contrast 

to its earlier acknowledgement on p. 3 that a 

range of responses are available. The EMS 

includes the expectation that SNC violations 

receive a formal enforcement action. 

However, it also acknowledges that there may 

be circumstances when formal enforcement 

action is not taken and the administering 

agency is expected to have a written 

justification for why the alternative action was 

more appropriate. 

• "Replace "formal enforcement action" 

with "enforcement action" at page 3 and 

pages 6 - 8. 

than a formal action) was more appropriate. 

If the State, as the NPDES program 

authority, does not take timely and 

appropriate formal enforcement action, EPA 

is expected to take a formal enforcement 

action. Our file and database review at 

EPA and States found no written 

justifications for not taking formal 

enforcement actions. 

No change made. 

8 Chapter 1, page 3 Compliance and Enforcement Data Systems 

and Reports, p. 4: The second and fourth 

sentences in the third paragraph need to be 

rewritten to distinguish between 

"noncompliance" and "reportable 

noncompliance." 

• Revise second sentence as follows: "The 

report flags NPDES major facilities that 

were in reportable noncompliance with 

permit or enforcement order requirements 

during the previous six months." 

• Revise fourth sentence as follows: 

"reportable effluent violations." 

While our original statement is accurate, we 

made these revisions in our final report. 

9 Attachment 1, 

Chapter 1, page 3 

Scope and Methodology, p. 5, 6, 8: The total 

of 132 facilities stated in paragraph 2 on p. 5 

as well as in paragraph 4 on p. 15 in Appendix 

A does not match the total of 128 facilities 

reflected in Table A-1 in Appendix A. 

Further, at pages 6 and 8 the following 

sentences are inconsistent: 

• “At the remaining 35 facilities, none of 

the actions that we could assess were 

timely based on the criteria in EPA's 

EMS" (page 6), 

• “We were able to assess 45 of the 57 

actions at 30 facilities for timeliness and, 

based on EMS criteria, none of the 45 

was timely" (page 8), 

• We could not determine the timeliness of 

the remaining 12 formal actions at 10 

facilities because available information 

was not adequate" (page 8). 

The total numbers of facilities represented in 

the three bullets above are inconsistent (e.g., 

30 facilities, 35 facilities and 40 facilities). 

• Please clarify, correct and provide 

Appendix A was revised so that the 

facilities in Table A-1 add to 132 facilities. 

We evaluated the timeliness of actions at 

35 total facilities. Some facilities received 

more than one enforcement action. Each 

action was assessed individually, thus one 

facility may have had an action judged 

untimely and another action for which we 

could not assess the timeliness. Thus, 45 

actions at 30 of the 35 facilities were 

untimely. We could not determine the 

timeliness of the remaining 12 actions that 

occurred at 10 of the 35 facilities. The 

apparent inconsistency stems from the 

overlap that occurred during our analysis 

because facilities may have had more than 

one action. Thus, an action was classified 

as either untimely or not assessed. In 

contrast, a facility with more than one 

action could be included as both untimely 

and not assessed. We added clarifying 

language in the report. 

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accurate facility and enforcement action 

totals. 

10 Chapter 2, 

pages 3-4 

"EPA Guidance Misinterpreted and 

Inadequate, p. 6 - 7: OECA strongly disagrees 

with OIG's statements that the EMS guidance 

that describes timely and appropriate 

enforcement actions is inadequate. On the 

contrary, the EMS provides fully adequate 

guidance on timely and appropriate 

enforcement responses for various types of 

violations, including those designated as SNC. 

OIG acknowledges at page 6 that 

"Flexibility is needed in any national 

enforcement program" yet contradicts this 

statement by continuing to apply the EMS as a 

set of rigid requirements (rather than flexible 

guidance). The OIG fails to recognize that a 

flexible enforcement response is necessary to 

manage the NPDES enforcement program. 

The need for flexibility is even greater today 

than when the guidance was first established 

because of the significant expansion of the 

universe of regulated entities covered by the 

NPDES program without a corresponding 

increase in EPA resources. 

On page 6, OIG states that "EMS 

guidance is unclear regarding appropriateness 

of enforcement actions . . ." OECA strongly 

disagrees - the EMS is very clear that an 

appropriate response should, ". . . reflect the 

nature and severity of the violations, and, 

unless there is supportable justification, the 

response must be a formal enforcement action, 

or a return to compliance by the permittee . . . 

In the rare circumstances when formal 

enforcement action is not taken, the 

administrating agency is expected to have a 

written record that clearly justifies why the 

alternate action (informal enforcement action 

or permit modification) was more 

appropriate" (see EMS, Chapter 11, 

Attachment B, p .2 and page 7 of this 

document). 

On pages 6-7, the OIG states that 

"EMS guidance is clear with regard to 

timeliness" in one paragraph yet relies on a 

subsequent October 6, 1999 OECA 

memorandum in another paragraph to define 

what is timely. The OIG relies on this 

memorandum and not the EMS guidance that 

reflects current practice. OECA agreed in its 

October 2006 meeting with OIG to rescind the 

1999 OECA memorandum that conflicts with 

the EMS. OECA also stressed that 1999 

OECA’s comment is directly contradicted 

by its October 6, 2006, response, which 

states “that its guidance documents are 

indefinite in regard to the timeliness 

standard.” 

Our report states that EPA has indistinct 

guidance to determine if actions are 

appropriate because the guidance does not 

state how expeditiously facilities should 

come back into compliance after an action 

is taken. 

Our report states that we believe the 

guidance is clear on the definition of 

“timely.” However, we were given 

inconsistent interpretations of what EPA 

considers timely. 

EMS states a timely formal enforcement 

action must be taken by the end of the 

quarter following the SNC violation. For 

instance, if a facility experiences an SNC 

violation in February of the first quarter, a 

formal enforcement must be taken by the 

administering agency by June 30 of the 

second quarter. 

The October 6, 1999, memorandum 

provides clarification of existing EMS 

language concerning timely and appropriate 

enforcement response to SNC. The memo 

represents the Water Enforcement 

Division’s official interpretation of the EMS 

language concerning timely and appropriate 

enforcement. OECA states that the memo 

has not been rescinded. OECA has chosen 

not to implement the memo, but the memo 

is the current guidance. We are concerned 

that OECA is more concerned about current 

practice than implementing current 

guidance. 

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memo is not being implemented by 

Headquarters and the Regions. 

11 Chapter 2, page 4 OECA disagrees with the OIG's conclusions 

on page 7 regarding whether the response to 

East Chicago was appropriate. The 

implication that there was inadequate 

enforcement attention at this site between 

1988 and 2004 is not valid (see attachment 2 

for a PCS list of all formal and informal 

actions at the facility, including available 

compliance schedule milestones). 

It is unclear how the OIG calculated 

the range of excess pollutant loadings for East 

Chicago. It is unclear if the OIG used the 

actual flow data taken from the DMRs during 

its file review, or used design flow data from 

PCS. Flow data are not available in OTIS. 

Since the 1988 consent order, EPA and/or 

Indiana have issued the following formal 

actions: a pretreatment administrative order 

in January 1993, a State-agreed order in 

November 2003 (not shown in OECA’s 

attachment 2), and a pretreatment 

enforcement action in 2004. A stipulated 

court order was completed in October 1991. 

All other actions included in the attachment 

are informal actions, such as phone calls 

and warning letters. 

Despite these actions, East Chicago had 

12 consecutive quarters of effluent 

violations from July 2002 through June 

2005. We evaluated the agreed order and 

determined it was untimely because it 

addressed violations from March and April 

2000. We could not make a determination 

on the pretreatment enforcement action 

taken in 2004 due to a lack of information 

in PCS and the data files. 

As stated in our report, we question the 

appropriateness of an enforcement action 

taken in 1988 that, according to OECA, 

“renders all effluent violations resolved 

pending since that time,” while the facility 

continues to violate permits limits and 

discharges to an impaired waterbody. 

For this facility, our estimate of pollutant 

loadings used the design flow. The report’s 

scope and methodology clearly lays out how 

we calculated the excess pollutant loadings. 

12 Chapter 2, page 5 Insufficient Formal Actions at 22 Facilities, p. 

8: OECA is reluctant to accept this finding 

without further evaluation under a correct 

interpretation of the guidance. This reluctance 

is based on OECA's experience reviewing the 

facilities that the OIG examined in its August 

2006 draft report wherein its findings were 

dramatically different than OIG's findings 

(e.g., 53 or 93% received an appropriate 

enforcement response). As explained in 

OECA's response to the August 2006 draft 

report, OIG's inaccurate interpretation of the 

EMS, failure to consider whether a facility 

was in "resolved pending" status, and the 

exclusion of relevant information, results in 

inaccurate findings. The same problems exist 

in this draft report. 

See OIG response to comments 7 and 10 

above. 

We found that 22 facilities (21 facilities 

once Decherd is removed, see response to 

comment #23) in SNC received insufficient 

formal actions and 30 facilities did not 

receive timely actions. We stated that we 

could not judge the appropriateness of the 

actions because OECA had not clearly and 

unambiguously defined how quickly a 

facility must come into compliance. OECA 

stated that 53 facilities received an 

appropriate response, but it failed to state 53 

received a timely response. 

We considered whether a facility was in 

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“resolved pending” as indicated by PCS or 

OTIS and OECA submitted data. We 

found that 13 facilities had received no 

formal action during our review period but 

had received actions prior to the start of our 

review period. We considered these actions 

in our review. However, we found that all 

13 facilities had unaddressed SNC 

violations during our review period. 

As stated in Chapter 3, OTIS data for 

Regions 4, 5, and 6 do not show facilities 

with active enforcement actions as resolved 

pending even though they are required to do 

so. Thus, OECA’s data systems do not 

show the correct enforcement status of 

facilities, as required by regulation. 

13 Chapter 2, page 5 OECA bases its findings on follow-up 

discussions with Regional staff - to OECA's 

knowledge it does not appear that the OIG 

based its findings on follow-up discussions 

with Regional staff. 

The fact that we disagree with OECA on 

many of the facts and inferences in this 

report does not imply that we ignored EPA's 

views. On the contrary, we carefully 

reviewed all written comments and verbal 

comments made at the numerous meetings 

we attended with OECA and regional staff. 

Following completion of field work and 

submission of our discussion draft to OECA 

on May 26, 2006, we met with OECA 

and/or regional staff on June 7, June 29, 

October 24, October 26, and November 8, 

2006. Further, OECA submitted data on 

November 16 (in response to the November 

8 meeting with OECA and regional staff) 

that reflected consultation with regional 

staff. 

14 Chapter 2, page 5 OECA disagrees with the statement that ". . . 

facilities with SNC violations must receive a 

formal enforcement action . . . or a return to 

compliance within the quarter following the 

SNC violation." OIG's statement, excerpted in 

part, from the EMS implies that every SNC 

violation requires a formal enforcement 

action. In fact, the EMS provides flexibility to 

Regions and states to address SNC - the EMS 

allows that an appropriate response may be 

formal or informal, with justification, or that a 

facility may return to compliance on its own. 

As stated previously, the OIG's draft report 

does acknowledge that informal actions are an 

option; however, the report focuses solely on 

whether EPA or the states took formal 

enforcement action at the 57 facilities. By 

only evaluating whether a formal enforcement 

action had been taken, the evaluation ignores 

the provisions in the EMS which allow an 

See OIG response to comments 7 and 10 

above. 

Alabama and/or EPA should have issued a 

formal enforcement action by the end of 

September 2004. The informal action was 

issued after the facility had been in SNC for 

four consecutive quarters. 

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informal enforcement response. The EMS 

recognizes that an informal enforcement 

response may be the most appropriate 

response given the circumstances of the case. 

Informal responses are used successfully by 

EPA and states to address SNC violations. 

• For example, Alabama issued a Notice of 

Violation (NOV) to Centerville to address 

chlorine total residual. The NOV resulted 

in the permittee changing its treatment 

technology for disinfection and 

submitting a schedule for making such 

change. Clearly, this informal action 

induced the permittee to take corrective 

action. 

15 Chapter 2, page 5 The draft report fails to acknowledge the 

compliance status classification of "resolved 

pending," i.e., a permittee in compliance with 

enforcement order and on track to achieve 

compliance pursuant to a compliance schedule 

but has not yet achieved full compliance with 

permit conditions. OECA believes that the 

OIG misinterpreted SNC violations for 

several facilities as being "unaddressed by 

enforcement action" when in fact, they were 

addressed. Below are just a few examples of 

facilities that were resolved pending during 

OIG's 12 quarter review period : 

We considered whether a facility was in 

“resolved pending” as indicated by PCS or 

OTIS and OECA submitted data. We found 

that 13 facilities had received no formal 

action during our review period but had 

received actions prior to the start of our 

review period. We considered these actions 

in our review. However, we found that all 

13 facilities had unaddressed SNC 

violations during our review period. 

As stated in Chapter 3 of our draft report, 

OTIS data for Regions 4, 5, and 6 do not 

show facilities with active enforcement 

actions as resolved pending even though 

they are required to do so. Thus, OECA’s 

data systems do not show the correct 

enforcement status of facilities, as required 

by regulation. To overcome this issue, OIG 

utilized OECA’s own extensive data 

collection efforts provided on November 16, 

2006. 

See OIG response to comments 16 to 19 

below. 

16 Chapter 2, page 6 City of Attalla, AL - Alabama issued an 

administrative consent order on February 26, 

2002, to this facility addressing violations of 

effluent limits for BOD5 mass and 

concentration, TSS mass, TSS % removal, 

BOD5 % removal, pH, and Toxicity, and for 

Sanitary Sewer Overflows. The consent order 

required return to compliance within 1095 

days upon the effective date of the order. 

When problems persisted, Alabama filed a 

complaint in state court on February 10, 2003 

resulting in a consent decree which was 

finalized on May 13, 2005. Alabama did not 

wait until February 2005 (1095 days) to 

The consent decree issued on May 13, 2005, 

is an escalation of an existing action. Thus, 

it is unclear if this escalation is timely 

according to the EMS criteria. However, it 

should be noted that the February 26, 2002, 

action, which preceded our evaluation time 

period, would be considered untimely since 

it addressed 27 sanitary sewer overflows 

reported from January 1999 through 

October 2001 and 12 violations of 

biochemical oxygen demand and total 

suspended solids from June through 

November 2001. This facility had 11 

quarters of effluent violations from July 

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escalate formal enforcement when it believed 

a stronger approach was necessary to assure 

the facility will address its problems 

expeditiously. 

2002 through June 2005. 

17 Chapter 2, page 6 Lafayette STP, TN- Tennessee issued an 

administrative order against this facility in 

April 2002 to address violations of effluent 

limits for Nitrogen, Ammonia, TSS, fecal 

coliform, and DO. The order required 

expansion of the plant (completed in 2004) to 

achieve compliance. The Lafayette STP was 

not a major facility until the 3rd Quarter of 

2004. The STP continued to have problems 

with Nitrogen, Ammonia, and Settleable 

Solids. It is not uncommon for violations to 

occur during plant expansion and start-up 

because it takes time for the activated sludge 

to form, to establish optimum activated sludge 

wasting rate, mix liquor concentration, and to 

reach a steady state of operation. When 

violations persisted after the start-up of the 

new plant and allowing for a period of time to 

reach steady state of operation, Tennessee 

issued a second administrative order in May 

2006. 

The Facility Registry System, which relies 

on PCS data, lists Lafayette as a major since 

August 2002. (See Comment #23) 

The April 2002 administrative order did not 

address settleable solids. During our review 

period, the facility was in SNC for seven 

quarters for settleable solids that were not 

addressed by formal enforcement actions. 

Moreover, this facility had three 

consecutive quarters of SNC effluent 

violations for settleable solids after third 

quarter 2004, when OECA claims this 

facility became a major. Thus, even under 

OECA’s facility classification, this facility 

should have received a formal enforcement 

action before the end of second quarter 

2005. 

18 Chapter 2, page 6 Austin, IN- Per the PCS comment field for 

this facility, the state's 2002 order specifically 

addressed the NPDES schedule violations. 

The only issue was that the order was not 

properly linked in PCS to show that the 

schedule violations were resolved pending. 

Austin Municipal Wastewater Treatment 

Plant had at least four consecutive quarters 

of compliance schedule violations after the 

February 2002 Consent Order. These SNC 

violations were unaddressed by enforcement 

actions. According to OECA, the state’s 

2002 Consent Order addressed the NPDES 

schedule violations that occurred after the 

order was issued. If issuing an 

administrative order resolves future 

compliance schedule problems, we do not 

understand how OECA has any facilities in 

SNC for compliance schedules violations 

and do not understand why it would be a 

category of SNC. 

19 Chapter 2, page 6 Hillsboro, TX- The city of Hillsboro had 

multiple effluent violations during 2002. 

Texas asked Region 6 to issue an 

administrative order addressing these 

violations while the state developed an 

enforcement action. An administrative order 

was issued by EPA Region 6 on March 25, 

2003. When the city failed to respond 

adequately to the order, Region 6 issued 

another administrative order on June 12, 2003, 

which also addressed continuing effluent 

violations. The city submitted an acceptable 

compliance plan on July 17, 2003, which was 

monitored closely while Texas continued to 

OIG’s analysis indicates that both of these 

enforcement actions were untimely. The 

March 2003 Administrative Order 

addressed violations from January 2002 to 

October 2002. The June 2003 

Administrative Order addressed violations 

from November 2002 to March 2003. 

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develop its enforcement action. The permittee 

has been in resolved pending status from 

April 2004 through the present except for the 

quarter of April through June 2005 when they 

had additional effluent violations. These 

violations were addressed by a state 

administrative order issued on July 14, 2006. 

This action required the facility to come into 

final compliance with effluent limits no later 

than October 12, 2006. The facility complied 

with this requirement and has had no further 

violations to date. 

20 Chapter 2, page 7 OIG's draft report still includes Michigan 

facilities (e.g., Flint Ink and Great Lakes 

Tissue) even though a known state-wide data 

system problem, discussed at length with the 

OIG in response to its August 2006 draft, 

resulted in incorrect SNC determinations and 

subsequent management decisions not to 

respond to some effluent violations. DMR 

data input issues in Michigan existed from 

October 2003 through September 2005. As 

such, reports of violations occurring during 

this timeframe, including non-reporting 

violations, are questionable. OECA believes 

EPA Region 5 appropriately exercised its 

enforcement discretion to make the decision 

not to respond. 

OECA’s earlier comments only referred to 

State-wide data system problems involving 

DMRs and compliance schedule reporting. 

As a result of those comments, we 

eliminated 25 of the 30 Michigan facilities 

from our timeliness assessment. We 

retained five Michigan facilities that had 

effluent violations in our timeliness review. 

If PCS coding issues extend to effluent 

violations, as OECA now suggests, we are 

even more concerned about the integrity of 

EPA’s data systems. However, without 

additional evidence of those newly reported 

data problems, we are retaining these five 

cases in the final report. 

21 Chapter 2, page 7 • For example, the 12 consecutive quarters 

of effluent violations cited in OIG's draft 

report at Flint Ink were actually toxicity 

violations that occurred for one quarter 

(February and March 2000). As explained 

to the OIG on several occasions, these 

violations continued to appear due to 

improper coding in PCS. Further, 

Michigan worked with Flint Ink to find 

the source of the toxicity and discovered 

an issue with a water additive. Flint Ink's 

permit was subsequently modified to 

withdraw permission to use the additive 

and the company ceased use. A multimedia inspection conducted by Region 5 

in 2006 confirmed cessation of the 

additive and that the company was 

moving a majority of its process out of 

state thus eliminating all discharges to 

surface waters. The toxicity violations 

were addressed and resolved by state 

action (compliance assistance and permit 

modification), and the general nonreporting violations were a direct result of 

Michigan's data system issues. 

OECA reported that the known State-wide 

data system problems involved only 

reporting issues such as discharge 

monitoring reporting and compliance 

schedule reporting. Flint had 12 quarters of 

effluent violations during our review period. 

Flint was still in SNC for effluents 

violations in September 2006 according to 

EPA’s data system, ECHO. OECA’s data 

provided on November 16, 2006, did not 

state that the 12 quarters of effluent 

violations were toxicity violations from 

February and March 2000. OECA’s 

response is contradictory. OECA states that 

the violation is due to improper coding. 

Then it states there was a toxicity problem, 

and that it was addressed and resolved 

through State action. From OECA’s 

response and our analysis, we believe Flint 

was in SNC and did not receive timely 

action. 

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22 Chapter 2, page 7 • The two consecutive quarters of mercury 

violations at Great Lake's Tissue cited in 

OIG's draft report were accurately 

portrayed. However, since they occurred 

at the very end of OIG's review period, 

OECA does not understand how the 

conclusion was reached that no action 

was taken. PCS indicates, and the Region 

has confirmed, that Michigan referred the 

case to the state Attorney General in July 

of 2005. 

A timely enforcement action should have 

been taken by Michigan to address the 

mercury effluent violations at Great Lakes 

Tissue by June 2005, which is prior to the 

end of our evaluation period. 

23 Chapter 2, 

pages 7-9 

OIG completely disregarded OECA's October 

2006 comments to the August 2006 draft 

report relating to a number of minor facilities 

in Regions 4 and 6 that were inaccurately 

included in his analysis as majors- these 

facilities were not classified as majors during 

the analysis and therefore not subject to SNC 

screening during all or part of the OIG's 

evaluation period . 

Region 4 has reconfirmed that 3 

facilities in Tennessee (Lafayette STP, 

Decherd City STP and Munford Lagoon) were 

not major facilities during all or part of the 

OIG's 12 quarter review period. Lafayette did 

not become a major facility until the 3rd 

quarter of 2004 when the plant expanded. 

Two other Region 4 facilities in TN (Decherd 

City STP and Munford Lagoon) were not 

classified as major facilities until the 4th 

Quarter of 2004 and the 4th Quarter of 2005, 

respectively. Neither of these facilities had 

SNC violations reported in the QNCR during 

the OIG evaluation period and therefore 

should not have been subject to SNC 

evaluation by the OIG (see attachment 2 for 

letters from Region 4 files documenting status 

change dates). 

Region 6 has reconfirmed that 4 

facilities in Texas (New Boston, SWS 

Holdings, Texas Dept. of Criminal Justice, 

and Windermere Utility) were not major 

facilities during the OIG's 12 quarter review 

period. Although PCS is the legal database of 

record for the NPDES program, dates of status 

change are not tracked in PCS - the date 

associated with a change in facility status 

from a minor to a major is manually tracked in 

files at the Regional office. For three of the 

four Texas facilities (New Boston, SWS 

Holdings, Texas Dept. of Criminal Justice), 

the OIG's conclusions were based on dates it 

found in the Facility Registry System (FRS) - 

an integrated, comprehensive, multi-media 

We removed Decherd (TN0020508) from 

our sample. We included Decherd, as well 

as the other facilities OECA questions, in 

our sample because EPA databases showed 

that facility was a major facility in SNC 

throughout our review period. However, 

our findings regarding the other six facilities 

are still valid. 

We obtained data on the status of the six 

facilities from the Facility Registry System. 

According to Office of Environmental 

Information staff and data documentation, 

the Facility Registry System pulls 

information from PCS. The Facility 

Registry System would only show that a 

facility is a major if PCS was updated and 

also considered it a major. The Facility 

Registry System shows the status of facility 

(major or minor) and the date in which the 

last change was made in the Facility 

Registry System. Office of Environmental 

Information staff verified that the date the 

information was last updated would only 

change if the data in PCS changed. 

The Facility Registry System confirms that 

Lafayette STP (TN0020877) has been a 

major since August 2002. Even using 

OECA’s data interpretation, Lafayette had 

three consecutive quarters of SNC effluent 

violations for settleable solids after 

becoming a major. This facility did not 

receive a timely formal enforcement action 

to address those SNC violations. 

According to the Facility Registry System, 

the Texas Dept. of Criminal Justice 

(TX0031577) has been a major since 

November 2001; New Boston (TX0026018) 

has been a major since May 2002; SWS 

Holdings (TX0070955) has been a major 

since August 2002; Windermere 

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data system maintained by EPA's Office of 

Environmental Information (OEI) . OEI staff 

confirmed that FRS does not track dates 

associated with a change in facility status - it 

tracks dates of permit application receipt and 

issuance. Thus, it is not possible to determine 

when a facility became a major by looking in 

the FRS. For example, the August 30, 2002 

date that the IG based its conclusion on for 

SWS Holdings was the date the permit 

application was received, not the date the 

facility became a major. FRS is not the legal 

database of record for NPDES program. It 

should be noted that the new ICIS-NPDES 

data system will improve on the current 

functionality available in PCS by providing a 

"begin date" and "end date" to track the 

conversion. In addition, as a result of the State 

Review Framework project, the Integrated 

Data for Enforcement Analysis System 

(IDEA) now contains quarterly "snapshots" of 

the major/minor and active/inactive facility 

status of the NPDES permitted universe. This 

feature is an additional source of historical 

information that OECA now can access as 

needed. 

For one of the four Texas facilities 

(Windermere Utility), the OIG based its 

conclusion that the facility was a major on the 

fact that the facility has a design flow of 2 

MGD. EPA's definition of a major municipal 

facility is a facility with a design flow > 1 

MGD, however, this facility is not a 

municipality. It has an SIC code of 6552 and 

is therefore subject to EPA's definition of 

major (which is a complex formula 

considering a number of factors) for an 

industrial facility (see attachment 2 for letters 

from Region 6's files documenting status 

change dates). 

(TX0074853) has been a major since March 

2004; and Munford Lagoon (TN0062499) 

has been a major since September 2004. 

Windermere had three consecutive quarters 

of SNC violations after March 2004 that 

were not addressed with formal 

enforcement actions so it did not receive 

timely action. Similarly, Munford Lagoon 

had three consecutive quarters of SNC 

violations after September 2004 that were 

not addressed with formal enforcement 

actions. 

As additional evidence, we spoke with the 

consulting engineer for the City of New 

Boston, who stated that New Boston has 

been a major for at least 10 years. 

24 Chapter 2, page 9 Untimely Enforcement at 30 Facilities, p. 8 - 

9: OECA is reluctant to accept this finding 

because of OIG's misinterpretation of the 

EMS timeliness standard. 

See comments 25 to 27 below. 

25 Chapter 2, page 9 As noted above, the OIG relies on a 1999 

memorandum in spite of OECA's explanation 

that the timely standard in the memorandum is 

not being implemented. OECA stated in 

October 2006 that the timely standard needs to 

be clarified and we will rescind the 1999 

memo. 

We relied on the 1999 memorandum 

because it provides the Water Enforcement 

Division’s official interpretation of the EMS 

language concerning timely and appropriate 

enforcement. OIG does not believe 

rescinding the memo will clarify the 

timeliness standard. On the contrary, 

rescinding the memo will make the 

timeliness standard open to interpretation. 

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26 Chapter 2, page 9 The OIG ignores flexibility in the EMS 

language regarding timeliness (see Chapter II, 

Attachment B). The purpose of guidance, such 

as the EMS, is to provide recommendations 

and set program expectations - not establish 

regulatory requirements (see Appalachian 

Power Co. v. EPA, 208 F. 3d - 1015 (D.C. 

Cir. 2000) and Barrick Goldstrike Mines Inc . 

v. Browner, 215 F.3d 45 (D .C . Cir. 2000), 

finding that EPA guidance cannot have the 

binding effect of a rulemaking). The OIG 

continues, however, to treat the 

recommendations in the EMS as rigid 

requirements on the Agency. 

Our evaluation does not advocate using the 

EMS as regulatory requirements. It simply 

uses OECA’s own program principles to 

assess how well the Agency is issuing 

timely and appropriate formal enforcement 

actions for long-term SNC violations. In 

our view, OECA needs to have criteria in 

place so that it can provide adequate 

oversight to region and State programs. 

27 Chapter 2, 

pages 9-10 

The OIG fails to take into account the time 

needed to work with a state, gather more 

evidence to support a case, allocate resources 

to an action and negotiate complex corrective 

measures to resolve noncompliance. The OIG 

does not acknowledge that state enforcement 

processes and timelines must be considered in 

determining reasonable timeliness. To 

illustrate, many states have the authority to 

issue monetary penalties within a compliance 

order. Issuance of such an order may require 

longer time frames than in the EMS due to 

public comment and participation 

requirements, or because a hearing is 

scheduled, or because of complex negotiation 

schedules. Thus, judgments on what is a 

reasonable time table for action must 

ultimately be case-specific in consideration of 

complex compliance problems that may 

require long term studies and complex 

injunctive relief (see Barnes Memo, Criteria 

for Direct Federal Enforcement in Delegated 

States, at pages 21 - 25). 

See OIG response to comments 7 and 10 

above. 

The OIG’s evaluation applies the 

programmatic principles set forth in the 

EMS to determine how well EPA regions 

and States are fulfilling their enforcement 

responsibilities. The EMS represents 

OECA’s own enforcement principles for 

EPA regions and States. The EMS also 

provides the flexibility for each 

administering agency to develop 

management procedures which are best 

suited to its operations and resources with 

the goal of most efficiently translating 

compliance information into timely and 

appropriate enforcement action. Thus, the 

flexibility desired by OECA, to consider 

many of the issues mentioned, is implicitly 

considered in the EMS. We appreciate the 

need for flexibility; however, we believe 

that OECA needs to have criteria in place so 

that it can provide appropriate oversight to 

region and State programs. 

28 Chapter 2, 

page 10 

• For example, it is incorrect for OIG to 

conclude on page 8 of the draft report that 

EPA's Administrative Order against 

ConocoPhillips was untimely. There are 

complex selenium water quality standard 

and permitting issues associated with this 

facility. EPA was in extensive 

negotiations with state partners, as well as 

Fish and Wildlife Service and the facility 

to resolve the complex permitting issues. 

The flexibility inherent in EPA's 

enforcement guidance is critical to being 

able to account for such complex 

circumstances. 

EPA issued an Administrative Order against 

ConocoPhillips Company on August 14, 

2003, to address effluent violations for 

selenium beginning July 2002. The action 

was untimely because it was not taken by 

December 2002 (the end of the next 

quarter), as required by EMS. According to 

PCS, the facility continued to exceed 

selenium permit limits through June 2005. 

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29 Chapter 2, 

page 10 

• For example, the OIG states on page 8 of 

the draft report that it could not determine 

timeliness of 12 formal actions involving 

10 facilities because the available 

information was not adequate. 

Furthermore, the OIG states on page 9 of 

the draft report that for Columbiana 

WWTP, AL, timeliness could not be 

assessed because the action was not 

linked to the violation. OECA does not 

understand this statement given that 

Alabama provided compliance and 

enforcement files containing a copy of a 

Consent Order, Complaint and Consent 

Decree for this facility to the OIG during 

its onsite file review on February 6 - 7, 

2006 and the OIG indicates that 

Alabama's files were 100% complete in 

Table 3-1 on page 11 of the draft report. 

As stated in the report, we could not 

determine the timeliness of the remaining 

12 formal actions at 10 facilities because 

available information was not sufficient. 

Specifically, the enforcement actions were 

not directly linked to the SNC violation 

addressed or when the SNC violations 

occurred. Without this information, we 

could not determine whether the action was 

timely. 

Alabama did have files on all eight facilities 

from our sample. The Consent Decree was 

in the file. However, the Consent Decree 

simply accelerates an existing compliance 

schedule for a Consent Order issued on 

March 21, 2002. The language in the 

document does not directly link the action 

to an SNC violation. Therefore, we could 

not address timeliness. 

30 Chapter 2, 

page 10 

It is not clear why the IG did not take 

advantage of the Watch List for its analysis. 

The Watch list and associated data provides 

much better insight related to case-specific 

circumstances and OECA's tracking of 

enforcement timeliness. The OIG was 

provided access to the Watch List, but it is 

unclear whether it was used. 

The OIG evaluated whether EPA conducted 

(1) timely enforcement on NPDES major 

facilities in SNC, and (2) proper oversight 

over regions and States. The Watch List is 

derived from EPA’s data systems. To avoid 

errors, we utilized the original data in 

EPA’s data systems. Our methodology is 

presented in Appendix A. 

31 Chapter 2, 

page 10 

Timely Enforcement Helps Minimize Excess 

Pollutant Discharges, p. 9: See OECA 

response at page 3, At A Glance, concerning 

the accuracy of the pollutant reduction 

estimate presented here. 

See OIG response to comment 2 above. 

32 Chapter 2, 

pages10-11 

Recommendation 2-1, p. 9: Clarify and 

enforce EMS guidance to ensure that timely 

and appropriate formal enforcement actions 

are taken against NPDES facilities in SNC. 

OECA Response: OECA concurs with the 

recommendation to clarify its NPDES 

timeliness guidance. As discussed with OIG, 

OECA will rescind the 1999 OECA 

memorandum in conflict with the EMS and 

will discuss this with the Regional NPDES 

Enforcement Branch Chiefs at the national 

NPDES meeting in April, 2007. OECA 

disagrees, however, with the OIG's 

commendation to "enforce EMS guidance." 

The EMS is a management tool which 

facilitates evaluation and performance review. 

It is not a set of rigid regulatory requirements 

which EPA imposes on the states or Regions 

as the use of the term "enforce" suggests. 

Rescinding the guidance without a 

satisfactory replacement will not “ensure 

that timely and appropriate formal 

enforcement actions are taken against 

NPDES facilities in SNC.” If OECA 

rescinds the 1999 memorandum, it will need 

to explain how it will unambiguously define 

timely and appropriate enforcement. 

We understand OECA’s concerns about the 

use of the word “enforce” in the 

recommendation. We will change the word 

“enforce” to “implement” in the final report. 

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33 Chapter 3, 

page 11 

Chapter 3: Inadequate Records and Reporting 

Inhibit EPA Oversight of NPDES Major 

Facilities, p. 10 – 13. Compliance and 

Enforcement Files Are Incomplete, p. 10: The 

authorized states are responsible for keeping 

accurate records. As such, EPA does not 

require that all information be stored in 

duplicate in the Regional offices. The OIG 

appears to assume that EPA should have hard 

copies of all state files. This redundancy is 

neither practical nor efficient. EPA has the 

ability to request information at any time and 

has the ability to audit state files. The State 

Review Framework (SRF) established a file 

review protocol that will be implemented in 

all 50 states by the end of FY 2007. When a 

state is not keeping accurate records (e.g., 

inspection reports or enforcement actions), the 

SRF process will identify this and formal 

recommendations and milestones will be 

made to ensure better file management. To the 

extent that violations or problems noted in 

files are not in the databases, the SRF process 

will also address this. 

An accurate history of the compliance and 

enforcement activities at a facility is 

important for oversight and making future 

enforcement decisions. The lack of 

accurate information inhibits EPA’s ability 

to provide effective oversight to NPDES 

major facilities and thus protect human 

health and the environment from excess 

levels of toxic or harmful pollutants. 

We recognize that the State Review 

Framework may help address file 

deficiencies at States noted in this report. 

However, only the active oversight and 

management of the State Review 

Framework process will result in 

improvements. It is not clear what steps 

EPA plans to take to improve its oversight 

and management in this area. 

34 Chapter 3, 

page 11 

EPA's Enforcement Data Systems Are 

Inaccurate, p. 11 - 12: OECA does not agree 

with the statement that EPA's data systems are 

inaccurate. The OIG provides no context 

supporting this broad statement but rather 

appears to make this statement based upon a 

specific, known problem in one state 

(Michigan). The OIG should indicate that 

EPA requires states to enter at least 95% of 

discharge monitoring report (DMR) and 

effluent limit data (which generate SNC 

status). Historically there are only two states 

that do not meet or come very close to this 

goal - Michigan, and Oregon. As EPA 

provides CWA data to hundreds of thousands 

of users via the ECHO web site, it is 

unfortunate that the OIG report classifies the 

data systems as inaccurate because there are 

data translation issues in two of fifty states. 

The ECHO web site clearly caveats these 

problems. These caveats should have first 

alerted OIG staff that Michigan data should be 

avoided and could not be used to draw 

accurate conclusions about facility SNC 

status. In addition, OECA, and the Regional 

office pointed out to the OIG staff on 

numerous occasions that the Michigan data 

should not be used in the OIG study; however, 

the OIG decided to include the flawed data 

anyway. In regard to the SNC status in other 

Our findings about NPDES program 

enforcement data systems being inaccurate 

go well beyond our findings in Michigan. 

Our report contains several examples of 

EPA’s data system problems, including 

several that EPA has acknowledged 

elsewhere. 

EPA’s data systems do not accurately 

reflect the SNC status of facilities. Once a 

formal enforcement action is issued for an 

SNC violation, a facility should be 

designated as “resolved pending” for that 

violation, according to Title 40, Code of 

Federal Regulations, Section 123.45. 

However, OECA states that Regions 4, 5, 

and 6 (the three regions reviewed) do not 

designate facilities in “resolved pending.” 

Thus, facilities in these regions may appear 

to remain in SNC status in EPA’s data 

systems for a long time despite operating 

with an existing enforcement action. 

EPA staff also stated that once a facility 

receives a violation for submitting DMRs 

late, that violation will continually show as 

a violation in EPA’s data systems until 

regions or States manually correct the 

problem. 

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OECA Response, 

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states evaluated, the OIG audit points out that 

many facilities that are flagged in the data 

systems as having SNC violations are actually 

covered under enforcement orders (thus are 

technically "resolved pending"). EPA is aware 

that many Regions and states prefer to keep 

the SNC flag on to keep pressure on the 

facility to complete enforcement order 

milestones. OECA believes that states should 

have the flexibility to manage SNC data as the 

states determine is appropriate. Keeping the 

SNC flag on is more informative to the public 

(e.g., it puts more pressure on the 

owner/operator of the plant to come back into 

compliance). 

• Revise the title of this section to read 

"SNC and violation data are inaccurate in 

Michigan" - this revised language is 

consistent with what OECA has already 

posted on its web site. 

The State of Michigan has had data 

problems. We could not evaluate the 

timeliness of enforcement actions at 25 of 

the 30 Michigan facilities due to the Statewide data problem. Even though we did not 

evaluate timeliness of enforcement actions 

at the 25 facilities, we did report on the 

obvious oversight problems that exist from 

a State having system problems for years. 

The ECHO Website notes the following 

data accuracy issues. 

1. A number of EPA-authorized 

NPDES facilities in Region 10 do 

not have up-to-date permit limits 

entered in PCS. 

2. DMR non-receipt is not being 

tracked for California Clean Water 

Act NPDES permits. 

3. In Indiana, many non-receipt 

violations are erroneous and are 

currently being investigated with 

resolution pending. 

4. In Delaware, Virginia, and West 

Virginia, some pH violations are in 

error. 

No revision is necessary. 

35 Chapter 3, 

page 12 

Many Violations Found During Inspections 

not Reported in PCS, p. 12: This is an issue 

that has concerned OECA, and we have been 

working with the Regions and states to 

improve such reporting since 2003. As noted 

in OECA's October 2006 response, the 

number of reported violations rose from 220 

in 2003 to 4,441 in 2005. The OIG Report 

fails to acknowledge substantial progress 

made by OECA in this area. EPA has also 

been responsive to state requests for 

clarification on reporting standards by 

finalizing more clear guidelines in regard to 

how such information should be reported to 

PCS. To ensure EPA has a full record of 

violations found, EPA has also proposed to 

the states that violation reporting be expanded 

to non-major facilities. 

The steps taken by OECA are encouraging; 

however, OECA must implement a quality 

assurance program to ensure that violations 

found during inspections are reported in 

PCS. 

36 Chapter 3, 

page 12 

Bacteria not Reported as SNC, p. 12: The 

permit parameters that are "eligible" to be 

automatically tracked are specifically noted in 

the RNC regulation, so EPA would be unable 

to simply begin tracking these as RNC or 

SNC without a regulatory change. Despite this 

obstacle, OECA has piloted additional 

See OIG response to comment 38 below. 

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management controls to assist in tracking 

bacteria violations at direct dischargers. For 

direct discharge facilities, the Watch List 

process provides Regions and states with the 

capability to flag facilities that have 

continuing exceedances - which includes 

bacteria and other pollutants that are not 

evaluated for SNC. While only some Regions 

and states are required to report under this 

pilot, other Regions and states use the Watch 

List as way to monitor these other parameters 

that are not included in the regulation. OECA 

is considering whether this pilot should be 

extended. OECA is also developing new 

reporting capabilities that will enable users to 

automatically access these violations. In 

OECA's October 2006 comments to the OIG, 

EPA's existing NPDES SNC policy was 

described which includes the discretion to flag 

"any other violation of concern" (such as 

bacteria) as SNC. OECA is working with an 

EPA-state advisory group to supplement the 

existing NPDES SNC policy to address 

significant violations from wet weather point 

sources (Combined Sewer Overflows, 

Sanitary Sewer Overflows, Concentrated 

Animal Feeding Operations and stormwater) 

which include the most significant sources of 

pollutants (including bacteria) not covered by 

the existing SNC Policy . 

37 Chapter 3, 

page 12 

Recommendations 3-1, page 12: Implement a 

quality assurance program addressing the 

completeness of compliance and enforcement 

files, accuracy of EPA data systems, and 

reporting in PCS the violations found during 

inspections. 

• OECA Response: OECA concurs and 

believes that its existing processes - 

which include SRF, the Watch List and 

ECHO - provide a reasonable amount of 

quality assurance. These substantial 

efforts were not discussed in the OIG 

report. In regard to inspection-related 

violations, EPA continues to negotiate 

with states to obtain this reporting, and is 

just beginning a new Regional pilot to 

ensure that EPA-determined violations 

are accurately tracked. 

OECA’s existing activities (State Review 

Framework, the Watch List, and ECHO) do 

not represent a quality assurance program. 

The Watch List and ECHO do not appear 

sufficient to address completeness of files, 

data accuracy, and reporting inspection 

violations. Moreover, the State Review 

Framework may help States address these 

issues, but not necessarily EPA regions. 

OIG is not convinced that these existing 

efforts will sufficiently address our 

recommendation. OECA needs to 

implement a quality assurance program 

addressing the completeness of compliance 

and enforcement files, accuracy of EPA 

data systems, and reporting in PCS the 

violations found during inspections. 

38 Chapter 3, 

pages 12-13 

Recommendation 3-2, page 12: Establish 

controls allowing EPA leadership to identify 

significant noncompliance by bacteria-only 

violators for enforcement action. 

• OECA Response : OECA concurs and is 

pursuing this in three other ways that may 

If OECA believes these actions will 

establish controls so EPA leadership can 

identify SNC by bacteria-only violators for 

enforcement action, we will accept their 

response. We will need to obtain an action 

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OECA Comments 

(Attachment 1 of its response) OIG Response 

have the same intended effect of 

addressing bacteria without the 

significant resource expenditure it would 

take to re-open the table of parameters 

found in the QNCR regulation at 40 CFR 

Part 123 .45 : 1) use of Watch List pilot 

criteria which includes bacteria, 2) 

develop better analytical tools that can 

assist the Regions and states in easily 

flagging these problems and tying the 

problems to watershed quality, and 3) 

continue to provide discretion for 

Regions and states to elevate serious 

bacteria violations to SNC status via the 

existing NPDES SNC policy . In addition, 

to improve public access to information 

about such violations, OECA will be 

adding effluent report charting (including 

bacteria violations) to its ECHO database 

in 2007. In addition, the most significant 

sources of bacteria (combined sewer 

overflows, sanitary sewer overflows, 

concentrated animal feeding operations, 

and storm water) are included in an effort 

underway by OECA's Office of Civil 

Enforcement to develop a wet weather 

SNC policy. 

plan and milestone dates for when these 

actions will occur. 

42
Appendix E 

Distribution 

Office of the Administrator 

Assistant Administrator for Enforcement and Compliance Assurance 

Regional Administrator, Region 4 

Regional Administrator, Region 5 

Regional Administrator, Region 6 

Agency Followup Official (the CFO) 

Agency Followup Coordinator 

General Counsel 

Principal Deputy Administrator for Enforcement and Compliance Assurance 

Director, Office of Regional Operations 

Director, Water Enforcement Division, Office of Enforcement and Compliance Assurance 

Office of Enforcement and Compliance Assurance Followup Coordinator 

Regional Audit Followup Coordinator, Region 4 

Regional Audit Followup Coordinator, Region 5 

Regional Audit Followup Coordinator, Region 6 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for Public Affairs 

Acting Inspector General 

43