UNITEDSTATESENVIRONMENTALPROtECTIONAGENCY WASHINGTON. D.C. 20460 

### SEP

## 2t•
( MEMORANDUM SUBJECT:

FROM:
TO: OFFICEOF FY 1990 Guidance for Reporting and Evaluating WATER POTW Noncompliance with Pretreatment Implementation Requirements

**/~** er, Dl.rector ofWater Enforcement and Permits (EN-335) R ional Water Management Division Directors, Regions I-X NPDES State Pretreatment Program Pirectors
Attached is the final "FY,1990 Guidance for Reporting and Evaluating Noncompliance with Pretreatment Implementation Requirements". This Guidance defines criteria for determining which POTWs should be reported on the Quarterly Noncompliance Report (QNCR) for failure to implementpretreatment requirements and

**criteria~for** determiningwhich pretreatmentviolationsby POTWs meet)r 1 cthalevel of

**sig~:tficant** noncompliance (SNC)• It also establishes timely and appropriate criteria for responding to noncompliance for pretrea·tment implementationviolations. The timely and appropriate definition adopted for the pretreatment. programis the same as for the NPDES program. The comments received from you on the August 9, 1989 draft .were timely and thoughtful. Perhaps the most frequent comment was the recommendation that we drop the separate definition for reportable noncompliance (RNC). As indicated in the August 9 letter, a workgroup is evaluatingpossible changes to the Quarterly Noncompliance.Report and RNC/SNC reporting system. The workgroup should complete its assessment and recommend changes in FY 1990. A final decision as to whether to continue the use of both an RNC and an SNC definition will await the recommendation of that group. For FY 1990, we will use both the RNC and SNC definitions. Two commenters suggested that the criterion addressing issuance of control mechanisms established an excessive-ly long timeframe (180 days) for permit issuance and reissuance. Suggestions were made to shorten the timeframe for IU permit issuance and reissuance to as little as 90 days. While we did not make this change, we have added to the SNC definition a provision that EPA Regions and States may design\ate a POTW as in significant noncompliance if any violation substantially interferes with the ability of the POTW to attain program objectives....

**~.** -2-
The FY

**19~0** SPMS requirements include two measures for POTW pretreatment implementation: l) WQ/E-5, the number and percent of approvedprograms in significantnoncompliancewith pretreatment implementation requirements; and 2) WQ/E-10, the number of POTWs thatmeetthe criteria for

**repo~able** noncompliance. We will trackperformance onboth'these measures for FY 1990 as a means of evaluating the efficacy of the new SNC definition. Regions and States are expectedto initiate timely and appropriate actions to resolve instances of significant noncompliance, including POTW pretreatment implementation violations. POTWs whichmeet the-definition of SNC for pretreatment implementation and are not addressed on a timely basis will be carried on the Exceptions List until they have been resolved or received a formal enforcement response. All POTWs with approved pretreatment programs should be tracked for both RNC and SNC. If you have any questions regarding the use of this document, you may contactme (475-8488) orRichard Kozlowski, Director, Enforcement Division (475-8304). The staffcontact is Anne Lassiter, Chief, Policy Development Branch (475-8307).
AttachmentFY 1990GUIDANCE FOR REPORTING ANDEVALUATING POTW NONCOMPLIANCEWITH PRETREATMENT REQUIREMENTS.. TABLE OF CONTENTS
I. Executive Summary II. Introduction A. Background B. Existing Rule c. Determination of Inadequate Program Implementation for QNCR Listing III. Applying the Criteria A. Level I Criteria 1. Failure to Enforce Against Pass Through and Interference 2. Failure to Submit Pretreatment Reports Within 30 days 3. Failure to Meet Compliance Milestones by**~o** days orMore B. Level II Criteria Page 1 2 2 3 4
7 7 7
9
9
10 1. Failure to Issue control Mechanisms 10

IV. 

## v. to Significant IUS in a Timely Fashion 2.**~Failure** to Inspect or Sample Significant Industrial Users 11
3. Failure to Enforce Pretreatment 11 Standards and Reporting Requirements 4. Any Other Violation{s) of Concern 15 to the Approval Authority Compliance Evaluation Reporting on the QNCR A. Format B. Description of the Noncompliance 

### c. Compliance Status 15 20 20 21 22 VI. · Examples of Reporting on the QNCR 23 VII. Response**~o** POTW Significant Nonc;ompliance for 24 Failure to Implement Approved Pretreatment Programs:t. Executive summary The QNCR is an importanttool to identifypriority violations of permit conditions, to overview the effectiveness of state and EPA compliance and enforcement activities, toprovide a framework to achieve a nationally consistentpretreatment program, and to.compile national statistics on noncompliance for· the NPDES program. The existingrule for noncompliance reporting requires EPA and the states to report instanceswhere POTWs have failed to adequately implement and

**enfo~ce** their approved pretreatmentprogram.

**~,Nearly** 1500 POTWs are now approved. Pretreatmentwill be the primarymechanism to control toxic andhazardous pollutants which may enter the POTW or its sludge. Therefore, it isvital that EPA and the approved States routinely evaluate POTW compliance with the requirements of their approved

**progra~ and**  report POTWs thathave failed to.adequately implement their· approved

**program~** J.'l( ,.::.·.

**~o.'·-** , ...**~~~--t-·"--** This Guidance is intended to assistRegions and approved States to evaluat.e and report POTW noncompliance with pretreatment requirements and to take formal enforcement action where violations are of a significant nature. The Guidance explains the criteria that should.be used to evaluateprincipal activities and functions necessary to implement the program. In some cases, approved states and Regions may need tomodify the program andjor NPDES permitbecause the existingrequirements are inadequate or because conditions have changed. In general, those POTWs that meet the definition of

**repo~table** noncompliance should be priorities for resolving the inadequacies in approved programs or permits. POTWs that meet any Level I criterion ortwo ormore Level II criteria are considered tobe in significant noncompliance. In addition, the Region/approved Statemay designate any failure to implementviolation as SNC if it substantially impairs the ability of the POTW to achieve its program objectives. ·POTWs withviolations whichmeet SNC criteria must resolve those violations before appearing on the 2nd QNCR or the Region or approved State is expected to take formal enforcement action. Where the violation is not resolved and formal enforcement action is not taken on a timelybasis, the POTW shouldbe listed on the Exceptions List until such time as the violation is corrected or the POTW has been put on a schedule for correction through formal enforcement.2
II. INTRODUCTION A. Background EPA Regions and·NPDES statesmust report certainpermit violations on the**Qua~terly** NoncomplianceReport (QNCR) which meet criteria identified in the existingNPDES Regulations (40 CFR Part 123.45). One of the violations that must be reported is
· a POTW's failure to adequately implement its approved

pretreatmentprogram. Priorto September 1987, the interpretation of adequate implementationwas leftto the discretion of the Regions and approved States. In September 1987, the Office ofWater Enforcement and Permits issued "Guidance for Reporting and Evaluating POTW Noncompliance with Pretreatment ImplementationRequirements" which provided a definition of reportable noncompliance (RNC) for POTW pretreatment program implementation. These criteria were to be used in determining when a POTW shou-ld--be--reporteCiontne··------=--- QNCR. This guidance established criteria which covered five basic areas of POTW program implementation:_IU control mechanisms; IU inspections; POTW enforcement; POTW reporting to the Approval Authority; and other POTW implementation requirements. Now, based on experience with the use of that definition in Fiscal**~ears,1988** and 1989, EPA has revised the RNCcriteria and has developed a new definition of sigpificant noncompliance {SNC) for POTW's that have failed to adequately implement their approved pretreatment programs. The new definition of RNC will be used to determinewhich POTWs should be reported on the QNCR for failure to implement approved pretreatment programs. The definition of SNC is used to identifythe instances .of noncompliance that are**subj~ct** to formal enforcement action, if not resolved on a timely and appropriate basis. The purpose of this Guidance is to explain the RNC/SNC criteria, with examples of how to apply the criteria; describe how to re'port noncompliance for POTW pretreatmentprogram implementation onthe QNCR and establish timely and**appropria~e** criteria for response to significant noncompliance. This Guidance should be used as a basis for reporting POTW pretreatment noncompliance as required in theAgency Operating Guidance and included as a performancemeasure for EPA and approved State programs under the Strategic Planning and Management System (SPMS).3
B. Bxistinq Rule The QNCR is thebasicmechanism for reportingviolations o'f NPDES permit requirements. Major1 POTW permitteesmust be reported on

**th~** QNCR: (1) if they areunder an enforcement order for previous permit violations; or (2) if theirnoncompliancemeets specific c,riteria (Category I noncompliance); or (3) ifthe regulatory agencybelieves theviolation(s) causes problems or is otherwise of concern (Category'!! noncompliance). The specific requirements of the existing rule which relate to pretreatment program implementation are as follows: 1. EnfDrcement Orders

- All POTWs that are under existing enforcement orders (e.g., administrative orders, judicial orders, or consent decrees) for violations of pretreatment implementationrequirements (except for orders addressing schedule and reportingviolations) must be listed on the QNCR and the compliance status must be reported on each subsequent QNCR until the POTW returns to full compliancewith the implementation reqUirements. 2. Category I pretreatment program noncompliance - APOTW must be reported on the QNCR: a) if itviolates any requirement of an enforcement order (except schedule or reporting requirements as noted below), or · b) ;if ithas failed to sUbmit a pretreatment report (e.g., to submit Annual Report or to publish a list of significantviolators) within 30 days from the due date specified in the permit or enforcement order, or c) if ithas failed to complete a pretreatmentmilestone within 90 days from the duedate specified in the permit or enforcement order•.

1 Major POTW permittees are those with a dry weather flow of at least 1 million gallonsperday or a BOD/TSS loading equivalent to a population of atleast 10,000 people. Any POTW (including a minor POTW) with an approved local pretreatmentprogram should have its pretreatmentviolations reported on the QNCR•4 3. Category II - A POTW mustbe reported on the QNCR

**~f** the instance of noncompliance is: a) I a pass through ofpollutantswhich causes orhas thepotential to cause a water qualityproblem or pealthproblem, b)

c) a failure of an approved

### POTW to implement its approved program adequately [emphasis added], including failure"to enforce industrial pretreatment requirements on industrial users as requiredby the approved proqram,2 or any otherviolation orgroup ofviolations which the DirectororRegional Administratorconsiders .to .be of substantial concern. · 

### c. Determination of Inadequate ProqraaImplementation for QNCR Listinq. OWEP has-developed criteriato evaluate local program implementation that explain and clarifythe existingregulations. As stated, these criteriahighlight activities that control authorities must undertake to implement theirprograms. These activities include: 1) POTW·establishment of IU control mechanisms, 2) POTW compliance monitoring and inspections 3) POTW enforcement of pretreatment standards and reporting requirements 4) POTW reporting to the Approval Authority, and 5) Other POTW implementation requirements. Collectively, these criteriaprovide the framework for the definition of reportable noncompliance which shouldbe used by EPA Regions and approved States to report POTW noncompliance with pretreatment requirements on the QNCR. These same criteria also provide the basis for a definition of significant noncompliance for pretreatmentprogram implementation. POTWs withpretreatment violations which meet the level of SNC must eitherresolve these violations on a timelybasis orthe Region orapproved Statemust take formal enforcement action on a timelybasis. The attached table, Table 1, identifies the individual violations which constitute the criteria for reporting noncompliance onthe QNCR, as well as the criteria for SNC.

2The permit is thebasis for enforcing·reqUirements of the approved program orthe Part 403 regulations. It should at least require compliance with.40 CFR part 403 and the approved program and ideally it shouldprovide more specific implementation

. . requirements when they are necessary to evaluate noncompliance•.5

TABLB 1 DEPJ:N:ITIONS OP RBPORTABLB AND SIGN:IP:ICAN'l' NONCOHPLIANCB



### . APOTW shouldbe reported onthe ONCB iftheviolation of its approvedpretreatmentprogram, itsNPDES permit orthe General PretreatmentRegulations, (40 CFR Part 403) meets any of the following Level I or Level.II criteria for inadequate implementation of its approved pretreatmentprogram. APOTW should be consideredtobe·in significantnoncompliance if it meets any one of the following Level I criteria ortwo ormore of the Level II criteria. The POTW may also be identified as in significant noncompliance if itmeets any·.Q.rul of the Level II criteria ifthat violation substantially impairs the ability of the POTW to achieve program objectives. A.· Level I· 1) Failed to take effective action against industrial users for.instances ofpass through andjor interference as defined in 40 CFR Part 403.3 and required.in Section 403.5, and as specified in the approved program orthe NPDES permit. Actions taken in·response to discharges which result inpass through and/or interference that failed to eliminate the causal discharge within 90 days of identifying the responsible industry or failed to place the responsible industry on an enforceable schedule within 90 days of identification are not considered to be effective, unl_ess otherwise defined in an approved enforcement response plan. 2) Failed to submit a pretreatment report (e.g., annual report orpublication of .significant violators) to the Approval Authoritywithin 30

**da~s** of the due date · specified inthe NPDES permit, enforcement order, or approved program.3 3) Failed to complete a pretreatment implementation. compliance schedule.milestonewithin 90 days of the'due date specified in the NPDES permit, enforcement order, or approved program. ·

3 The term enforcement ordermeans an administrative order, judicial order or consent decree.' (See 40 CFR 123.45)6

TABLE 1 (Continued)
B. Level II 1) Failedto issue, reissue, orratify industrial user permits, orother enforceable control mechanisms, where required, for at least 90% of the "significant · industrial users", within 180 days afterprogram approval (or afterpermit expiration), orwithin 180 days of the date required in the approvedprogram;

**NPD~S** permit, or enforcement order. 2) Failed to conduct a complete inspection or sampling of at least eighty percent of the "significant industrial users" as requiredby the permit, the approvedprogram, or enforcement order. 3) Faiied to enforce pretreatment standards or reporting requirements

-- including self-monitoringrequirements

-- as required by the approved program, the NPDES permit, or the General PretreatmentRegulations. Failed to take appropriate action against a violation within-thirty (30) days ofbeing notified of such violation. Actions taken in response to incidents of s-ignificant noncompliance that failed to return the SIU Jto compliance (or in c'ompliance with an enforceable compliance schedule} within 90 days of the receipt of information establishing significantnoncompliance are not considered effective unless otherwise defined in an approved program enforcement response plan. 4) Any otherviolation or

**g~oup** ofviolations of local program implementation requirements based on the NPDES permit, approved program or 40 CFR Part 403 which the Director or Regional Administrator considers to be of substantial concern.5 ·

4See SNC definition for industrial users, section 3.4.1 of the PCME. EPA proposed to use that definition to identify significant noncompliers for the annual public notification requirement (section 403.8)(f)(2)(vii)). Significant noncompliance (SNC) includes certainviolations ofpretreatment standards, reporting, schedules and enforcement orders by SIUs. 5 Existing QNOR criterion (40 CFR Part 123.45); theviolation must be reported.'7

III. Applying the Criteria The

**crite~ia** for reporting POTW noncompliance with pretreatment requirements are based on the General Pretreatment Regulations [particularly 403.8(f}(2)], approved pretreatment programs, and NPDES permit conditions (particularly Part III). Where specific conditions, deadlines, orprocedures are specified in the Regulations or the approvedprogram, and incorporated or referenced in the NPDES permit, POTW performance shouldbe evaluated against those requirements. Any failure tomeet those requirements is a violation. The criteria included inthis Guidance establish a basis for determining when a violation or series of violations shouldbe reported on the QNCR for failure to implement a pretreatment program. If the POTW is identified as meeting one ormore of the criteria, the POTW shouldbe reported on the QNCR. If the POTW's violationsmeet the criteria for significant noncompliance, the violationmust be reported in the QNCR and itmust be resolved orEPA orthe approved State must take formal enforcement action to resolve the violation before the POTW appears on the second QNCR. This definition of "timely and appropriate" is the same as for the NPDES program. · POTW performance shouldbe evaluatedusing the information routinely obtained from pretreatment compliance inspections, annual reports, pretreatment audits and DischargeMonitoring Reports (DMRs) as well as any special sources of information. All annual reports should include the compliance status of

## Ius; a summary of compliance and enforcement activities, and other information, as required by Section 403.12(i) of the General Pretreatment Regulations. This information should beuseful to assess the effectiveness of pretreatment implementation.- Pretreatment staff should review the approved program, the NPDES permit, and any correspondence with the POTW regarding its pretreatment programto identify any specific procedures, levels of performance, ormilestones that may apply to implementation of the

**particul~r** program.
A. (,c LEVEL I CRITERIA (a POT1f is

**CO~l&iderec!**

# t)o be IUIC and SltC for any violation listedbelow) 1. Failure to BnforeeAgainst Pass Through and Interference8
Definitions of industrial user discharges that interfere with a POTW or passthrough the trnatmentworks were promulgated January 14, 1987 (52 FR 1586). Protection against interference andpass through.are fundamental objectives of implementing a local pretreatment program. Interferencegenerally involves the discharge of a pollutant(s) which reduces the effectiveness oftreatment such that a permit requirement isviolated. (If thepollutantthat ·causes theviolation is the same as thepermitpollut,ant limit that was exceeded, pass throughhas occurred.) The POTW is responsible for

**ident~fying** and controllingthe discharge of

**pol~utants** from IUs thatmay inhibit or disrupt theplant operations or

**th~** use and disposal of sludge. The POTW must monitor IU contributions and establish local limits toprotect its sludge. The POTW shouldhave written procedures-to--inv-est-iqate,--------- control and eliminate interference and pass through. Whenever interference orpass through is identified, the POTW should apply such procedures to correct the problem. The effectiveness of POTW actions against IUs that cause interference and pass through is evaluatedbased on the timeliness of the POTW response, the degree to which the problem is abated, and the use ofthe maximum enforcement authority required to resolve theproblem. Whenever an industrial sourcehas been identified as a cause of such violations, the control authoritymust respond in a rapid and aggressive manner to avoid continuingproblems, consistent with the POTWs approved enforcementprocedures. Where there are 

## no approved procedures, a reasonable expectationwouldbe that the interference/pass through wouldbe correctedwithin 90 days after the industrial source has been identifiedas causingthe interference orpass through or that an enforcement order setting an expeditions compliance schedule for corrective actionwouldbe issued within 90 days afterthe source is identified. Where the SIU does not comply with the schedule, the POTW wouldbe expected to make use of full enforcement authorities to secure compliance. Section 403.5ofthe General PretreatmentRegulations requires that the POTW develop and enforce local limits to prevent interference andpass through from industrial contributors to the treatmentworks. If a POTW haspermit limit violations that are attributable to industrial loadings to its plant, itmay alsobe a vi9lation of the requirement to enforce local limits. However, interference orpass throughmay reflect the fact that the approved program includes inadequate local limits. If such is the case the POTW shouldbe required to modify its approved pretreatment program.9

2.

**Fai~lure** to Submit PretreatmentReports Within 30 days This

**crite~ion** already existsunder Category I of 40 CFR Part 123.45(a). The term "pretreatmentreport" shouldbe·inter- preted to include any report requiredbytheApproval Authority from the POTW (includingpublicationof significantviolators/ noncompliers in the newspaper as requiredby Section 403.8(f)(2)(vii) ofthe General PretreatmentRegulations). Where specific dates are established for these or other reports from the POTW, theymay be tracked in PCS. When deadlines are missed, the POTW shouldbe notified immediatelybecause these·reports contain informationwhich is essential to determine compliance status. Whert the due date ismissed by 30 days ormore, the POTW should be reported on the QNCR as in noncompliance. APOTW which meets this criterionwould alsobe considered in significant noncompliance. 3. Failure to meet Compliance ScheduleMilestones by 90 pays ormore This criterion is also included in

**Catego~.**I of 40 CFR Part 123.45(a). Compliance schedules are frequently used to require construction of additional treatment, corrective action to correct inadequacies in implementation, Spill Prevention Contingency and Countermeasure

**plan~,** additional monitoring that may be needed to attain compliancewith the permit, and any other requirements, especiallythe development or

**revis~on** of local

**~** limits. The schedules should divide the corrective action into major steps (milestones) that canbeverifiedby inspection or review. Most

**schedule~** includeprogress reports. EPA recommends that the milestones be set at leastevery sixmonths throughout the schedule. The schedules canbe incorporated as part ofthe POTW's NPDES permit if final compliancewill not exceedthe regulatory compliance deadline. Ifthe compliance schedule is to resolve a violation that has·occurred afterthe requlatory compliance deadline, the schedulemust beplaced in an administrative order, judicial order, ora consent decree outside the NPDES permit. The existing rule for QNCR reportingrequires that all permittees be listed on the QNCR ifthey are under an enforcement order. If the

**perm~ttee** is.in compliancewiththe order, the compliance status is "resolvedpending". If thepermitteehas missed a compliance schedule dateby 90 days·ormore, the permitteemust be reported as noncompliant on the QNCR. For POTW pretreatmentprograms, a failure to begin corrective action, complete corrective action, or attain final compliancewithin 90 days of the compliance deadline in an enforcement order is considered SNC..·. ·. 10

B. LEVEL II CRITERIA (a POTW is consideredRHC for aeetinq any criterion and SNC for meetinq two ormore of the criteria listed, except that a POTW aaybe identified as aeetinq SNC if itmeets any one of thtt criteria listedbelow if the violation sUbstantially iapairs the ability of the POTW to achieve proqraaobjections.) 1. Failure to Issue Control Mechanisms to SignifiCant Industrial Users in a Timely Fashion Control mechanisms establish enforceable limits, monitoring conditions, and reporting requirements for the industrial user. In some cases, an approved programmay have a seweruse ordinance that defines the limits {including local limits) and an individual mechanism for establishingmonitoring conditions at each**facility~** Technically, if a control mechanism expires, control of the SIU and enforcement of some pretreatment requirements may be suspended. Therefore, timely issuance and renewal of all control mechanisms is essential. All Control Authorities must apply pretreatment standards to their industrial users. Where the approvedprogram·requires that individual control mechanisms be developed for significant industrial users, but does not include a timeframe for issuance, the POTW should be given a deadline to issue them through an·. " enforcement order. Some States include schedules for issuing specific SIU permits in a POTW's NPDES permit. Where the POTW has missed one ormore deadlines specified in a permitor enforcement order for issuing individual control mechanisms by 90 days or more, the violationmust be reported on the QNCR as a schedule violation. For failure to issue control mechanisms, whe·re individual control mechanisms are required by the approved program or the NPDES permit, the POTW should issue orreissue controlmechanisms to 90% of the SIUs within sixmonths following the required date or, if there is no required date, within sixmonths after the program· is approved. Where initial issuance of individual control mechanisms has occurred, POTWs shouldbe expected to reissue 90% of required control mechanisms within sixmonths of expiration. POTWs that(fail tomeet these timeframes shouldbe reported on the QNCR.11 Some POTWs have stated that delay in submission of,an applicationby the SIU or delay in reviewby a state agency causes unavoidable delays in issuance of control mechanisms. The POTW should establish a schedule for IU applications and any other required preliminary steps which allows for the timely review and issuance of a control mechanism priorto its expiration. 2. Failure to Inspect or Samole Significant Industria! Users POTWs are required to carryout all inspections, surveillance, andmonitoringprocedures necessary toverify the compliance status of their industrial users independent of information providedby the industrial user [40 CFR 403.8 (f)(2)(iv)]. In the PCME Guidance, EPA recommended that the Control Authority conduct at least one inspection andjor sampling visit for each significant industrial user annually. The approved program and/or the NPDES permitmay establish other requirements for inspections oruse a different definition of significant industrial user. In those cases where the permit or approved program identifies specificrequirements for inspection or sampling, these requirements shouldbe used as a basis to evaluate POTW compliance. If the POTW has failed to either inspect or sample at least 80% of the significant indu.strial users as required by the permit or the approved program, the POTW

**shoul~** be reported on the QNCR for its failure to inspect. POTW sampling of all IUs is essential to evaluate IU compliance where IUs do not submit self-monitoring information. In the absence.of specific inspection coverage requirements in the approved program orpermit, theApproval Authority should also report any POTW whichhas not

**eith~r** inspected or sampled at least 80% of all SIUs within a 12 month period. 3. Failure to Enforce Pretreatment Standards and Reporting Requirements
a. IU Reporting and Self-MonitoringRequirements All categorical IUs are required to report at least twiee a year (40 CFR 403.12). POTWs alsohave authority to require monitoring and reporting from non-categorical IUs. As a result, most POTWs have established self-monitoring requirements for SIUs as a means of securing adequate data to assess SIU compliance at less cost to the POTW than if all data were developedby the POTW through sampling. Where an approvedprogram-does not require SIU self-monitoring, the visits and inspections conductedby the POTW must be sufficient in scope or frequency to assure compliance.· . . · 12

In evaluating·compliancewith this criterion, EPA and approved States should examine the requirements of the NPDES permit and the approvedpretreatmentprogram and determine whether the Control Authorityhas established self-monitoring requirements as required. IU self-monitoring requirements should specify.the location, frequency, andmethod of sampling the wastewater; the procedure for analysis and calculation of the result; the pollutant limits; and the reporting requirements. Under certainconditions, SIU violationsmay trigger additional self-monitoring (See 403.12(g)). For eachviolationthe SIU detects, itmust notify the POTW and resample and submit both sample results for reviewby the Control Authority. ·These**self~monitoring** requirementsmay be applied, in general, through an,ordinance, through specific control mechanisms, orthrough a combination of general and specificmechanisms. Where self-monitoring is used, it shouldbe required frequently enough so that in combination with POTW monitoring, compliance of the SIU can be accurately assessed. Where appropriate requirements havebeen established, the Control Authority must ensure that SIUs complywith all aspects of the requirements and report in the manner required in the control mechanism. Where the Control Authority fails to establish appropriate requirements or to adequately enforce these requirements once established (i.e., POTW should respond in writing to all SNC violations for IU self-monitoring and reporting}, the ControlAuthority shouldbe considered in noncompliance and listed on the QNCR. b. POTW Enforcement and IU SignificantNoncompliance The Control Authoritymust have the legal authority

-- usually expressed through a seweruse ordinance

-- to require the development

..of compliance schedules by IUs and to obtain remedies for noncompliance, including injunctive relief and civil or criminal penalties [40 CFR 403.8(f)(l)(iv) and (vi)]. In addition, the Control Authority must have an attorney's statement, which among other things, identifies how the Control Authority will ensure compliance withpretreatment standards and requirements and enforce them in the event ofnon-compliance by industrial users [403.9(b)(l)(iii)]. Further, procedures for enforcement may be contained in the approvedprogram, seweruse ordinance, or NPDES permit. The attorney's statement and compliancemonitoring sections of the approved program, taken in combinationwith the NPDES permit, may provide a comprehensive set of enforcement procedures

### 13 which the POTW should follow to ensure the compliance of. industrial users. withpretreatment standards. Where,such procedures are inadequate, EPA' stronglyrecommends that POTWs develop written enforcementprocedures**whi~h** 

### describe how, when, andbywhom enfprcement authorities are applied (See section 3.3 of the PCME). In fact, amendments.to the General Pretreatment Regulations proposedonNovember 23, 1989 (40 CFR Parts 122 and· 403) require POTWs todevelop S\lCh procedures. Thes'e procedures must be approvedby the Approval Authority. (After the NPDES permit is modified or reissued to incorporate these requlatory changes, these procedures become enforceable requirements of the pretreatmentprogram.) These procedures serve to inform industrial users of the likely response toviolations and assist the POTW in applying sanctions in an equitablemanner. The Approval Authoritymust periodically evaluatewhether the POTW is effectively enforcingpretreatment requirements. In· evaluating performance, the Approval Authority should examine bothwhether the POTW is following its enforcementprocedures, where there are such approvedprocedures, andwhetherthe program is effective in ensuring compliance withpretreatment standards. Regardless of whether there are procedures, one of the indicators the Approval Authority shoulduse in evaluating effectiveness is the level of compliance of SIUs with pretreatment standards. Where the level of significant noncompliance (SNC)-of SIUs is 15% or greater over a sixmonth periodwithout formal POTW actions or penalties where appropriate, there is a reasonablepresumption that overall the Control.Authority is not effectively enforcing its program. To overcome the/presumption of ineffective enforcement, the POTW shouldbe able to demonstrate maximum use of its enforcement authorities on a timeframe consistentwith its enforcement procedures or, in the absence ofwrittenprocedures, with the timeframes inqluded inthis document. The Approval Authority should also review the nature and timeliness of the actions taken.by the POTW to obtain compliance from individual SIUs. As a general rule, EPA recommends that a POTW respond initiallyto all violations with either.formal or informal enforcement actionwithin 30 days from the date the violation is reported or identified to the POTW. Frequently, the initial actionwill be informal (e.g., telephone call, warning letter, ormeeting.) Where informal action does not bring compliance, the POTW shouldpromptly escalate the level of enforcementresponse. As a·general rule, escalation should occur within 90 days of the init,ial action, if compliancehas not**bee~** 

### achieved. -Where an SIU continues toviolate, so that the pattern of violations meets the criteria for significant noncompliance, the violation shouldbe resolvedwithin 90 days of the receipt of information which establishedthe SIU to be in SNC or the POTW should issue an enforceable schedule for resolution of the noncompliance within that**~0** 

### days. ··14


### Under certain emergency situations

-- toprotectpublic welfare and property

-- the initial response shouldbe immediate and should include a'formal enforcement action. The POTW should exercise any

**an~** 

### all.authoritythat is necessaryto resolve instances of significantnoncompliance or establish a·schedule for resolvingthem.· The control Authority should alsouse its authority to assess penalties againstnoncomplying industrial

**u~ers** 

### to recapture the economicbenefit ofdelaying compliance. Penalties would be expected aspart of the response toviolations ofmost compliance schedules and forviolationswh.ich were related to interference andpass through atthe POTW. EPA uses

### a computer model "BEN" to estimate the economicbenefit. Economicbenefit results from delaying capital. expenditures, one-time costs for construction/acquisitionoftreatment facilities, and the avoided cost of operating andmaintainingthe treatment

**wo~~~~-_JC~ntro.l**

### ______ _ authorities should useprocedures whrcn-coriSider economicbenefit a,s part of theirpenalty assessmentprocess. The Approval Authority should review the Control Authority's overall actions carefully to determine whether ithas routinely evaluated the violations and contactedthe SIUs in a timely manner, escalatingtheresponse when compliance is not achieved. If this review reveals that the control Authorityhas often not followed its own procedures orthat the Control Authorityhas not appropriately used its full authorities to achieve compliance by 

### its SIUs, the Control Authority shouldbejudged tobe in noncompliance. Where the control-Authority isjudgedtohave followed its procedures in almost all cases, but the level of significant noncompliance among SIUs is 15% orgreater, the adequacy of Control·Authority enforcementprocedures shouldbe reviewed. If the procedures are found tobe inadequate, the procedures should bemodified. The Approval Authority.might requiremodification of the approved program, through the NPDES permit, ormight issue an administrative orderrequiring the adoption ofnew procedures along the lines of those included in the PCME Guidance. Even where the SIUs have a low level of significantnon- compliance, theApproval Authority should reviewthe performance of the 

### control Authority to ensurethat it is, in fact., implementing its enforcementprocedures and that.theprocedures are adequate to obtainremedies fornoncompliance. Forexample, where a Control Authority fails to identify all violations or fails to respond to violationswhen they do occur, the POTW should normallybe identified as in noncompliance onthe QNCR.15

c. Local limits APOTW thathas violations of its NPDES permit limitations which are attributed to interference orpass-through from nondomestic contributions, should be reported on the QNCR (40 CFR 123.45 (a)). Likewise, a POTW which fails to enforce its approved local limits shouldberincluded on the QNCR. Just as for limits based on national categorical pretreatment standards,

**POT"~s** are expected to exercise the full range of enforcement mechanisms available to ensure the compliance of industrial users with approved local limits. I.n assessingthe effectiveness of enforcement of local limits, the same criteria sqouldbe applied as for enforcement of national pretreatment standards. 

### 4. Any OtherViolation(s) of Concern to the Approval Authority

**T~is** criterion allows the Approval Authority to identify any POTW as in reportable noncompliance for a singleviolation or any combination of violations which arejudged to be important even though they may not be covered by the specific criteria in the definition. These violations might include suchviolations as failure to update an industrial user inventory, failure to staff the pretreatment program consistentwith the approvedprogram'or NPDES permit, issuance of control mechanisms of inadequate quality, or failure to develop or analyze local limits as required by an NPDES permit or.enforcement order. IV. compliance Evaluation EPA or the approved State should use annual (or more ·frequent) reports, pretreatment compliance inspections, audits,

any follow-up reports, and DMRs to evaluate the compliance status of the permittee. At a minimum, data shouldbe reviewed every six months to determine whether the POTW is in compliance. The Approval Authority should attempt to schedule audits andjor inspections and receipt of reports to support this sixmonth review. Once the facility is shown on the QNCR, quarterly evaluations are needed to update the compliance status on each QNCR.Compliance withpermit effluentllimits, compliance schedules, and reporting canbe tracked in PCS, which is EPA's

.automated data system. The dates for submission and receipt of

periodic reports and routine requirements should also be tracked in PCS. WENDB data elements already include the date of receipt of an annual report (orperiodic report). This tracking would allowRegions and states to forecast when reports are expected and detect reporting violations, similar

**~o ~he**  process for tracking discharge monitoring reports and other scheduled events.16

The Pretreatment Permits and Enforcement Tracking System, (PPETS), has been developed, as a part of PCS, to trackthe overall

**perform~nce** of POTWs with their pretreatment requirements and the compliance rates of significant industrial users. Most of the data in PPETS will onlybe indicative ofpotential violations. The apparent violation shouldbeverified as a continuingproblembefore the instance of noncompliance is reported on the QNCR. The data,elements in PCS and PPETS that may apply to reportable noncompliance are summarized for each criterion inTable 2.
once

**th~** POTW has been reported on the QNCR 'it should continue to be reported each quarteruntil the instance of noncompliance is reported as resolved. Compliancewith an enforcement order (bothjudicial and administrative) shouldbe tracked on the QNCR from the date the order is issueduntil it is met in full. EPA and/or the approved State shouldverify the compliance status of the POTW each quarter once it is listedon the QNCR through periodic reports from the POTW, compliance inspections, audits, meetings, orby a 308 letterto the POTW for compliance data and information on the status of the pretreatment implementationviolation. ,17 Table 2 REPORTABLE NONCOMPLIANCE CRITERIA AND RELATED PPETS DATA ELEMENTS Criterion Criterion II-1 Failure to Issue Control Mechanisms

Criterion II-2

-- Failure to Inspect SIUs

Criteria II-2
Failure to Enforce Data Source PPETS

-

PPETS

- .

PCS

Standards and Reporting Requirements PPETS

- pata Element· o Number of SIUs without required mechanisms*
o ,Control mechanism deficiencies
o SIUs not inspected or sampled
o Number of SIUs*
o SIUs in SNC but not inspected or sampled
0 SIUs not inspected at

·required

frequency
0 Inadequacy of POTW inspections
0 ·violation summary

0 Effluent data•
0 SIUs in SNC*
0 Adequacy of POTW monitoring
0 SIUs in SNC with selfmonitoring*Criterion

Criterion I-1 Failure to Enforce against Interference and Pass-through 18

Data Source

PCS

PPETS Data Element

o Number of enforcement actions*
o Existing local limits
o Headworks ' analysis
o Deficiencies in POTW application of standards· o Violation Summary
o Effluent data*

o SIUs in SNC*
o Number of enforcement actions*
o Number of IUs assessed penalties

o Number of significant violators published in the newspaper*
o Pass Through/ Interference incidents
o Deficiencies in POTW sampling19



## * Water Enforcement National Data Base (WENDB) data elements for which data entry is required, not optional.20


## v. Reporting on the ONCR The QuarterlyNoncomplianc£. Report is prepared byNPDES states and EPA Regions each quarter. It listsviolations of Federally designated- majorNPDES

**permitte~s** that are of concern to the Agency. The format is described in Section 123.45(a) of the NPDES Regulations. For each instance of noncompliance, the report must show the date, basis and type of the violation, the date and type of action the agency has taken, and the current compliance status. The agency should also explain'mitigating circumstances or remedial actions which the permitteemay have planned. Detailed guidance for preparing the QNCR is available upon request to the Regions or·oWEP. The following discussion summarizes the basic requirements for reporting POTW pretreatment violations. '

. r The QNCR must be submitted to EPA Headquarters sixtydays after the reporting quarter ends. The QNCR covers Federally designated majors. Generally1 a **POTW--eve~--1-MGD---is----automat±cally** designated as·a major. This includes the vastmajority of the POTW Control Authorities. All POTW pretreatment implementation violations should be reported on the QNCR, regardless ofwhether the control authority is classified as a major or a minor POTW. A. Format The general format for the QNCR is described in the Regulations. A list of abbreviations and codes used by the State Agency or EPA Region that prepares the report should be attached to each QNCR. If the Permit Compliance System (PCS) is used to generate the QNCR, standard abbreviations are automatically used and no special list of abbreviations or codes is needed for the submittal to Headquarters. (Note that a list of abbreviationsmay be needed for Freedom of Information Act requests.) The format is intended to provide the minimum information that is necessary to describe the violation, show how and when the agency responded,

**e~plain** any mitigating circumstances or clarifying

**commen~s,** and indicate the current compliance status of the permittee. The description of the permittee should include the name of the permit holder, the name of the municipality, and the NPDES permit number. The permittee shouldbe the Control Authority for the local pretreatment program. If othermunicipal permittees are subject to the Control Authority, they should be listedunder the comments portion of the entry. The Control Authority is responsible for violations by otherpermittees coveredby the ·control Authority's pretreatment program. Similarly, industrial

users that contribute to the violation shouldbe listed under comments.21 B. Description of the Noncompliance Under the permittee's name and_permit number, information on each instance of noncompliancemust be reported. For pretreatment

**v~olations,** the-description should summarize the criteria that were violated and reference the QNCR Regulation subparagraph. The subparagraph of theAugust 1985 Regulations that applywould_be as follows: Type ·ofviolation Regulation Subparagraph 1) Failure.to implement or enforce industrial pretreatment requirements (Criteria I-1 and II-1, -2, and -3) 2) Pretreatment Report

- 30 days overdue (Criterion I-2) 3) Compliance schedule

- 90 days overdue (Criterion I-3) 4) Other violation orviolations of concern (Criterion II-4) QNCR (section 123.45)

(a)(iii)(B) (a)(ii)(D) (a)(iii)(C)

(a)(iii)(G) The criterion should be listedunderthe type ofviolation as the example (SectionVI) shows. Each violation should include the date. Ifthe·POTW has missed a deadline, the deadline is the date of the violation. The last day of the month is used as the violation date for violations of monthly averages. In some cases, the Agencymay have discovered the violation through an audit or inspection of the POTW program. The inspection/audit date shouldbe noted· under comments. In the examples, all dates on the QNCR are written in six digit numbers representing themonth, day, and year. The date, January 9, 1987 is entered as 010987 for the PCS generated QNCR. The violation date of some implementationrequirementsmay be the date the pro'gramwas approved. Where the POTW has taken no action to implement a requirement since approval of the program, this beginning datewould be appropriate. In other cases, the POTW may have been issued a specificdeadline. These deadlines may be establishedthrough a permit or a compliance order. For example, some programs require annual inspections of22 all SIUs as a

**condi~ion** of the NPDES permitbut d9 not establish specific timeframes. In the absence of a particular compliance date, the specificdeadline shouldbe assumed to be one·year after the effective date of theNPDES permit. Thus, the initial date of theviolation is one year afterthe effective date of the permit. The Region or approved State should contact the POTW .promptlywhen a pretreatment implementationviolation is detected. The Region/State should.also indicatethe actiontaken. in response to the POTW's failure to implement an approved program on the QNCR. In determining the appropriate,response, the Region/State should consider the impact of the violation, POTW compliance history, the number of SIUs, and·the nature andjor duration of the

**violation~** Initial violations may be resolved through training, conferences, or on-site reviews. The· Regional/State response shouldbe timely and escalate to formal enforcement (an administrative order orjudicial referral) if the POTW fails or is unable to comply·in,a timely fashion. The date the action was taken should alsobe indicated. Planned actions by the POTW or its IUs and projected dates shouldbe noted under comments. 

### c. Compliance Status The QNCR also tracks the status of each instance of reportable noncompliance. Three status codes are usually reported: noncompliance (NC), resolved pending (RP), and resolved (RE). "Noncompliance" means the violation orpattern of violations is continuing. "Resolved

**~ending"** means the permittee is making acceptable progress according to an enforceable schedule (i.e., through an administrative orjudicial order) to correct the violation. "Resolved" means the permittee no longer exceeds the QNCR criteria for which they are listed. For the "noncompliance" and "resolvedpending" status, the status date is generally the last date of the report period. The status date for "resolved" is either the datethe noncompliance requirement is fulfilled Qr the last day of the report period in which the permittee no longermeets

**~he** QNCR criteria. The "comments" column canbe used to describe the violation, explainpermittee progress, indicatepotential remedies, project dates of compliance, and explain agency responses. Other information can also be reported under comments, includingthe name of noncomplying SIUs: the level of performance or degree of failure by the POTW; the names of otherpermittees that are covered by the Control Authority; agencyplans for training or technical assistance; and the manner inwhich the agency learned of the violation.23
VI. Example ofReporting on the ONCB The following example illustrate.s how violations and .Agency responses are reported. This is a moderate-sized POTW thathas refused to implement the program•

. Scenario: Hometown's pretreatmentprogramwas approved inJune 1985. The permit required an annual.report, fifteen days after the end of each year, beginningJanuary 15, 1986. The program required that permitsbe issued to 15 SIUs byJune 30, 1986. The POTW was audited inAugust 1986 and had failed to permit and inspect its IUs and failed to submit an annual report. Hometown meets the criteria for SNC. ONCR Listing Hometown WWTP, Hometown, 

### us 00007

REG INSTANCE OF · COMPLIANCE NONCOMPLIANCE_/_OATE STATUS_DATE SUBPARA ACTION_(AGENCY/DATE)
Issue permits (Criterion II-1) 063086 (iii)(B) AO #123 RP (033187) Inspect SIUs (Criterion II-2) 083086 (iii)(B) AO #123 RP (033187) (State/033187)
(State/033187)
Submit Annual Report Phone call (State/013087) 011587 (ii)(C) AO #123 (State/033187) RP (033187) (Criteria I-2) COMMENTS AO requires submission of annual reportby 4/30/87, and permit issuance and sampling inspections of all SIUs by 6/30/87. EPA Audit 8/30/86 identified-violations of·permit inspection requirements Control Authority includes two otherpermittees:**s~burb** One, Permit No. 

### us 00008 and Suburb Two, PermitNo. 

### us 00009 who must meet the schedule for inspections. Discussion: The entry on the QNCR for Hometown shows the name and permit**numb~r** of the facility. The Control Authority also covers two otherpermittees. ·Three reportable noncompliance criteria were exceeded (see sections I and II of this-guidance).·24
The annual reportwas due January 15, 1987, according to the NPDES permit for Hometown. The approved programwas the basis

.for the other reportedviolations. The "reg subpara"''identifies the section of the

**exis~ing** QNCR which covers the violations. The State has called the citywhichpromised to

**submit~ t:he** 

**'**annual report. After discussionwith the city and its outlying:· jurisdictions, an administrative ord

. erwas issued

**with**
**~:** compliance schedule to resolve all three violations. Hometown is following an enforceable schedule thatwill leadto compliance, so its compliance status is shown as "resolved

.pending" "RP" for all three violations. The comments indicate the compliance deadlines. VII. Response to POTW SignificantNoncompliance for Failure to Implement Approved Pretreatment

**Prog~** This Guidance establishes criteria for determining when a POTW's failure to implement pretreatmentprogram requirements meets the level of significant noncompliance. In all instances where the violation is judged tobe SNC, the violationmust be addressed on a "timely and appropriate" basis. The definition

**~** for "timely and appropriate" for pretreatment implementation wilL be the same as for NPDES violations. That is, theviolationmust be resolved or EPA or the approved Statemust take formal enforcement action to resolve theviolation before the

**~** appears on the second QNCR. In the rare circumstances

**~ere** formal enforcement is not taken and the violation not resolved, the administering agency must prepare a written record tojustify why no action or the .alternat£ action was more approprittte. Where "timely and appropriate·· enforcement action is no*"·

_ taken, the POTW will be listed on the Exceptions List and will be tracked until such time as the violation is fully

**resol~ed.** Each justification for the Exceptions List will be evaluated individually to determine whether the failure to take action was

.justified. The justification shouldmake clear the reason for not taking action and discuss such factors as the nature of the implementation requirement schedule, the expected date of compliance, and the alternative process that will be used to resolve the violation. \