UNITED STATES ENVIRONMENTAL PROtECTION AGENCY 

WASHINGTON. D.C. 20460 

SEP 2t• ( 

MEMORANDUM 

SUBJECT: 

FROM: 

TO: 

OFFICE OF 

FY 1990 Guidance for Reporting and Evaluating WATER 

POTW Noncompliance with Pretreatment Implementation 

Requirements /~ 

er, Dl.rector 

of Water 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 implement pretreatment requirements 

and criteria~for determining which pretreatment violations by 

POTWs meet)r1

ctha level of sig~:tficant noncompliance (SNC) • It also 

establishes timely and appropriate criteria for responding to 

noncompliance for pretrea·tment implementation violations. 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 evaluating possible 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 approved programs in significant noncompliance with 

pretreatment implementation requirements; and 2) WQ/E-10, 

the number of POTWs that meet the criteria for repo~able 

noncompliance. We will track performance on both' these 

measures for FY 1990 as a means of evaluating the efficacy of 

the new SNC definition. 

Regions and States are expected to initiate timely 

and appropriate actions to resolve instances of significant 

noncompliance, including POTW pretreatment implementation 

violations. POTWs which meet 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 contact me (475-8488) or Richard Kozlowski, 

Director, Enforcement Division (475-8304). The staff contact is 

Anne Lassiter, Chief, Policy Development Branch (475-8307). 

Attachment 
FY 1990 GUIDANCE FOR REPORTING AND EVALUATING 

POTW NONCOMPLIANCE WITH 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 or More 

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 important tool to identify priority 

violations of permit conditions, to overview the effectiveness of 

state and EPA compliance and enforcement activities, to provide a 

framework to achieve a nationally consistent pretreatment 

program, and to.compile national statistics on noncompliance for· 

the NPDES program. The existing rule for noncompliance reporting 

requires EPA and the states to report instances where POTWs have 

failed to adequately implement and enfo~ce their approved 

pretreatment program. 

~,Nearly 1500 POTWs are now approved. Pretreatment will be 

the primary mechanism to control toxic and hazardous pollutants 

which may enter the POTW or its sludge. Therefore, it is vital 

that EPA and the approved States routinely evaluate POTW 

compliance with the requirements of their approved progra~ and 

report POTWs that have 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 evaluate principal 

activities and functions necessary to implement the program. In 

some cases, approved states and Regions may need to modify the 

program andjor NPDES permit because the existing requirements 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 or two or more 

Level II criteria are considered to be in significant 

noncompliance. In addition, the Region/approved State may 

designate any failure to implement violation as SNC if it 

substantially impairs the ability of the POTW to achieve its 

program objectives. · POTWs with violations which meet 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 timely basis, the 

POTW should be 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 states must report certain permit 

violations on the Qua~terly Noncompliance Report (QNCR) which 

meet criteria identified in the existing NPDES Regulations (40 

CFR Part 123.45). One of the violations that must be reported is · a POTW's failure to adequately implement its approved 

pretreatment program. Prior to September 1987, the interpretation 

of adequate implementation was left to the discretion of the 

Regions and approved States. 

In September 1987, the Office of Water Enforcement and 

Permits issued "Guidance for Reporting and Evaluating POTW 

Noncompliance with Pretreatment Implementation Requirements" 

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 determine which POTWs should be reported on the QNCR 

for failure to implement approved pretreatment programs. The 

definition of SNC is used to identify the 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 pretreatment program 

implementation on the 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 the Agency Operating 

Guidance and included as a performance measure for EPA and 

approved State programs under the Strategic Planning and 

Management System (SPMS). 
3 

B. Bxistinq Rule 

The QNCR is the basic mechanism for reporting violations o'f 

NPDES permit requirements. Major1 POTW permittees must be 

reported on th~ QNCR: 

(1) if they are under an enforcement order for previous permit violations; or 

(2) if their noncompliance meets specific c,riteria 

(Category I noncompliance); or 

(3) if the regulatory agency believes the violation(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 implementation requirements (except for 

orders addressing schedule and reporting violations) 

must be listed on the QNCR and the compliance status 

must be reported on each subsequent QNCR until the POTW 

returns to full compliance with the implementation reqUirements. 

2. Category I pretreatment program noncompliance - A POTW 

must be reported on the QNCR: 

a) if it violates any requirement of an enforcement order 

(except schedule or reporting requirements as noted 

below), or · 

b) ;if it has failed to sUbmit a pretreatment report (e.g., 

to submit Annual Report or to publish a list of 

significant violators) within 30 days from the due date 

specified in the permit or enforcement order, or 

c) if it has failed to complete a pretreatment milestone 

within 90 days from the due date specified in the 

permit or enforcement order •. 

1 Major POTW permittees are those with a dry weather flow of at 

least 1 million gallons per day or a BOD/TSS loading equivalent 

to a population of at least 10,000 people. Any POTW (including a 

minor POTW) with an approved local pretreatment program should 

have its pretreatment violations reported on the QNCR• 
4 

3. Category II - A POTW must be reported on the QNCR ~f the instance of noncompliance is: 

a) I a pass through of pollutants which causes or has the potential to cause a water quality problem 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 required by the approved proqram, 2 or 

any other violation or group of violations which the Director or Regional Administrator considers .to .be of substantial concern. · 

c. Determination of Inadequate Proqraa Implementation for QNCR Listinq. 

OWEP has-developed criteria to evaluate local program implementation that explain and clarify the existing regulations. As stated, these criteria highlight activities that control authorities must undertake to implement their programs. 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 criteria provide the framework for the definition of reportable noncompliance which should be 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 pretreatment program implementation. POTWs with pretreatment violations which meet the level of SNC must either resolve these violations on a timely basis or the Region or approved State must take formal enforcement action on a timely basis. The attached table, Table 1, identifies the individual violations which constitute the criteria for reporting noncompliance on the QNCR, as well as the criteria for SNC. 

2 The permit is the basis for enforcing· reqUirements of the approved program or the Part 403 regulations. It should at least require compliance with. 40 CFR part 403 and the approved program and ideally it should provide 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 

. A POTW should be reported on the ONCB if the violation of its approved pretreatment program, its NPDES permit or the General Pretreatment Regulations, (40 CFR Part 403) meets any of the following Level I or Level.II criteria for inadequate implementation of its approved pretreatment program. A POTW should be considered to be·in significant noncompliance if it meets any one of the following Level I criteria or two or more of the Level II criteria. The POTW may also be identified as in significant noncompliance if it meets any·.Q.rul of the Level II criteria if that 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 of pass through andjor interference as defined in 40 CFR Part 403.3 and required.in Section 403.5, and as specified in the approved program or the NPDES permit. Actions taken in·response to discharges which result in pass 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 or publication of .significant violators) to the Approval Authority within 30 da~s of the due date · specified in the NPDES permit, enforcement order, or approved program. 3 

3) Failed to complete a pretreatment implementation. compliance schedule.milestone within 90 days of the 'due date specified in the NPDES permit, enforcement order, or approved program. · 

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

TABLE 1 (Continued) 

B. Level II 

1) Failed to issue, reissue, or ratify industrial user 

permits, or other enforceable control mechanisms, where 

required, for at least 90% of the "significant · industrial users", within 180 days after program approval (or after permit expiration), or within 180 

days of the date required in the approved program; 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 required by the permit, the approvedprogram, 

or enforcement order. 

3) Faiied to enforce pretreatment standards or reporting requirements -- including self-monitoring requirements -- as required by the approved program, the NPDES 

permit, or the General Pretreatment Regulations. Failed to take appropriate action against a violation 

within-thirty (30) days of being 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 significant noncompliance are 

not considered effective unless otherwise defined in an 

approved program enforcement response plan. 

4) Any other violation or g~oup of violations 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 · 

4 See 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 certain violations of pretreatment standards, reporting, schedules and enforcement orders by SIUs. 

5 Existing QNOR criterion (40 CFR Part 123.45); the violation 

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, or procedures are specified in the Regulations or the approved program, and incorporated or referenced in the NPDES permit, POTW performance should be evaluated against those requirements. Any failure to meet those requirements is a violation. The criteria included in this Guidance establish a basis for determining when a violation or series of violations should be reported on the QNCR for failure to implement a pretreatment program. If the POTW is identified as meeting one or more of the criteria, the POTW should be reported on the QNCR. If the POTW's violations meet the criteria for significant noncompliance, the violation must be reported in the QNCR and it must be resolved or EPA or the 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 should be evaluated using the information routinely obtained from pretreatment compliance inspections, annual reports, pretreatment audits and Discharge Monitoring 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 be useful 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 program to identify any specific procedures, levels of performance, or milestones 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 listed below) 

1. Failure to Bnforee Against Pass Through and 

Interference 
8 

Definitions of industrial user discharges that interfere with a POTW or pass through the trnatment works were promulgated January 14, 1987 (52 FR 1586). 

Protection against interference and pass through.are fundamental objectives of implementing a local pretreatment program. Interference generally involves the discharge of a pollutant(s) which reduces the effectiveness of treatment such that a permit requirement is violated. (If the pollutant that ·causes the violation is the same as the permit pollut,ant limit that was exceeded, pass through has occurred.) The POTW is responsible for ident~fying and controlling the discharge of pol~utants from IUs that may inhibit or disrupt the plant operations or th~ use and disposal of sludge. The POTW must monitor IU contributions and establish local limits to protect its sludge. 

The POTW should have written procedures-to--inv-est-iqate,--------- control and eliminate interference and pass through. Whenever interference or pass 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 evaluated based on the timeliness of the POTW response, the degree to which the problem is abated, and the use of the maximum enforcement authority required to resolve the problem. 

Whenever an industrial source has been identified as a cause of such violations, the control authority must respond in a rapid and aggressive manner to avoid continuing problems, consistent with the POTWs approved enforcement procedures. Where there are no approved procedures, a reasonable expectation would be that the interference/pass through would be corrected within 90 days after the industrial source has been identified as causing the interference or pass through or that an enforcement order setting an expeditions compliance schedule for corrective action would be issued within 90 days after the source is identified. Where the SIU does not comply with the schedule, the POTW would be expected to make use of full enforcement authorities to secure compliance. 

Section 403.5of the General Pretreatment Regulations requires that the POTW develop and enforce local limits to prevent interference and pass through from industrial contributors to the treatment works. If a POTW has permit limit violations that are attributable to industrial loadings to its plant, it may also be a vi9lation of the requirement to enforce local limits. However, interference or pass through may reflect the fact that the approved program includes inadequate local limits. If such is the case the POTW should be required to modify its approved pretreatment program. 
9 

2. Fai~lure to Submit Pretreatment Reports Within 30 days 

This crite~ion already exists under Category I of 40 CFR Part 123.45(a). The term "pretreatment report" should be· inter- preted to include any report required by the Approval Authority from the POTW (including publication of significant violators/ noncompliers in the newspaper as required by Section 403.8(f)(2)(vii) of the General Pretreatment Regulations). Where specific dates are established for these or other reports from the POTW, they may be tracked in PCS. When deadlines are missed, the POTW should be notified immediately because these ·reports contain information which is essential to determine compliance status. Whert the due date is missed by 30 days or more, the POTW 

meets 

should be reported on the QNCR as in noncompliance. A POTW which this criterion would also be considered in significant noncompliance. 

3. Failure to meet Compliance Schedule Milestones by 90 pays or more 

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 

may 

Contingency and Countermeasure plan~, additional monitoring that be needed to attain compliance with the permit, and any other requirements, especially the development or revis~on of local ~ 

major 

limits. The schedules should divide the corrective action into steps (milestones) that can be verified by inspection or review. Most schedule~ include progress reports. EPA recommends that the milestones be set at least every six months throughout the schedule. The schedules can be incorporated as part of the POTW's NPDES permit if final compliance will not exceed the regulatory compliance deadline. If the compliance schedule is to resolve a violation that has· occurred after the requlatory compliance deadline, the schedule must be placed in an administrative order, judicial order, or a consent decree outside the NPDES permit. 

The existing rule for QNCR reporting requires that all permittees be listed on the QNCR if they are under an enforcement order. If the perm~ttee is. in compliance with the order, the 

missed 

compliance status is "resolved pending". If the permittee has a compliance schedule date by 90 days·or more, the permittee must be reported as noncompliant on the QNCR. For POTW pretreatment programs, a failure to begin corrective action, complete corrective action, or attain final compliance within 90 days of the compliance deadline in an enforcement order is considered SNC. 
.·. 

·. 

10 

B. LEVEL II CRITERIA (a POTW is considered RHC for aeetinq any criterion and SNC for meetinq two or more of the criteria 

listed, except that a POTW aay be identified as aeetinq SNC 

if it meets any one of thtt criteria listed below if the 

violation sUbstantially iapairs the ability of the POTW to 

achieve proqraa objections.) 

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 program may have a sewer use ordinance 

that defines the limits {including local limits) and an 

individual mechanism for establishing monitoring 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 approved program· 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 or more deadlines specified in a permit or 

enforcement order for issuing individual control mechanisms by 90 

days or more, the violation must 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 or reissue control mechanisms 

to 90% of the SIUs within six months following the required date 

or, if there is no required date, within six months after the 

program· is approved. Where initial issuance of individual 

control mechanisms has occurred, POTWs should be expected to 

reissue 90% of required control mechanisms within six months of 

expiration. POTWs that(fail to meet these timeframes should be 

reported on the QNCR. 
11 

Some POTWs have stated that delay in submission of,an application by the SIU or delay in review by 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 prior to its 

expiration. 

2. Failure to Inspect or Samole Significant Industria! 

Users 

POTWs are required to carry out all inspections, surveillance, and monitoring procedures necessary to verify the 

compliance status of their industrial users independent of 

information provided by 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 permit may establish 

other requirements for inspections or use a different definition 

of significant industrial user. In those cases where the permit 

or approved program identifies specific requirements for 

inspection or sampling, these requirements should be 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 or permit, the Approval Authority should 

also report any POTW which has 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-Monitoring Requirements 

All categorical IUs are required to report at least twiee a 

year (40 CFR 403.12). POTWs also have 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 developed by the POTW 

through sampling. Where an approved program-does not require SIU 

self-monitoring, the visits and inspections conducted by the POTW 

must be sufficient in scope or frequency to assure compliance. 
· . 

. · 

12 

In evaluating·compliance with this criterion, EPA and 

approved States should examine the requirements of the NPDES 

permit and the approved pretreatment program and determine 

whether the Control Authority has established self-monitoring requirements as required. IU self-monitoring requirements should 

specify .the location, frequency, and method of sampling the 

wastewater; the procedure for analysis and calculation of the 

result; the pollutant limits; and the reporting requirements. 

Under certain conditions, SIU violations may trigger additional 

self-monitoring (See 403.12(g)). For each violation the SIU 

detects, it must notify the POTW and resample and submit both 

sample results for review by the Control Authority. ·These self~monitoring requirements may be applied, in general, through 

an, ordinance, through specific control mechanisms, or through a 

combination of general and specific mechanisms. Where 

self-monitoring is used, it should be required frequently enough 

so that in combination with POTW monitoring, compliance of the 

SIU can be accurately assessed. 

Where appropriate requirements have been established, the 

Control Authority must ensure that SIUs comply with 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 Control Authority should be considered in 

noncompliance and listed on the QNCR. 

b. POTW Enforcement and IU Significant Noncompliance 

The Control Authority must have the legal authority -- usually expressed through a sewer use 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 with pretreatment standards and 

requirements and enforce them in the event of non-compliance by 

industrial users [403.9(b)(l)(iii)]. Further, procedures for 

enforcement may be contained in the approved program, sewer use 

ordinance, or NPDES permit. 

The attorney's statement and compliance monitoring sections 

of the approved program, taken in combination with the NPDES 

permit, may provide a comprehensive set of enforcement procedures 
13 

which the POTW should follow to ensure the compliance of. 

industrial users. with pretreatment standards. Where,such 

procedures are inadequate, EPA' strongly recommends that POTWs 

develop written enforcement procedures whi~h describe how, when, 

and by whom enfprcement authorities are applied (See section 3.3 

of the PCME). In fact, amendments.to the General Pretreatment 

Regulations proposed on November 23, 1989 (40 CFR Parts 122 and· 

403) require POTWs to develop S\lCh procedures. Thes'e procedures 

must be approved by the Approval Authority. (After the NPDES 

permit is modified or reissued to incorporate these requlatory changes, these procedures become enforceable requirements of the 

pretreatment program.) These procedures serve to inform 

industrial users of the likely response to violations and assist 

the POTW in applying sanctions in an equitable manner. 

The Approval Authority must periodically evaluate whether 

the POTW is effectively enforcing pretreatment requirements. In· 

evaluating performance, the Approval Authority should examine 

both whether the POTW is following its enforcement procedures, where there are such approved procedures, and whether the program is effective in ensuring compliance with pretreatment standards. 

Regardless of whether there are procedures, one of the indicators 

the Approval Authority should use 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 six month period without formal POTW actions or 

penalties where appropriate, there is a reasonable presumption that overall the Control.Authority is not effectively enforcing its program. To overcome the/presumption of ineffective 

enforcement, the POTW should be able to demonstrate maximum use 

of its enforcement authorities on a timeframe consistent with its 

enforcement procedures or, in the absence of written procedures, 

with the timeframes inqluded in this 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 initially to all violations with either.formal or 

informal enforcement action within 30 days from the date the 

violation is reported or identified to the POTW. Frequently, the 

initial action will be informal (e.g., telephone call, warning 

letter, or meeting.) Where informal action does not bring compliance, the POTW should promptly escalate the level of 

enforcement response. As a· general rule, escalation should occur 

within 90 days of the init,ial action, if compliance has not bee~ 

achieved. -Where an SIU continues to violate, so that the pattern 

of violations meets the criteria for significant noncompliance, 

the violation should be resolved within 90 days of the receipt of 

information which established the 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 -- to protect public welfare and property -- the initial response should be immediate and should include a'formal enforcement action. The POTW should exercise any an~ all. authority that is necessary to resolve instances of significant noncompliance or establish a·schedule for resolving them. · 

The control Authority should also use its authority to assess penalties against noncomplying industrial u~ers to recapture the economic benefit of delaying compliance. Penalties would be expected as part of the response to violations of most compliance schedules and for violations wh.ich were related to interference and pass through at the POTW. EPA uses a computer model "BEN" to estimate the economic benefit. Economic benefit results from delaying capital. expenditures, one-time costs for construction/acquisition of treatment facilities, and the avoided cost of operating and maintaining the treatment wo~~~~-_JC~ntro.l ______ _ authorities should use procedures whrcn-coriSider economic benefit a,s part of their penalty assessment process. 

The Approval Authority should review the Control Authority's overall actions carefully to determine whether it has routinely evaluated the violations and contacted the SIUs in a timely manner, escalating the response when compliance is not achieved. If this review reveals that the control Authority has often not followed its own procedures or that the Control Authority has not appropriately used its full authorities to achieve compliance by 

its SIUs, the Control Authority should be judged to be in noncompliance. 

Where the control-Authority is judged to have followed its procedures in almost all cases, but the level of significant noncompliance among SIUs is 15% or greater, the adequacy of Control· Authority enforcement procedures should be reviewed. If the procedures are found to be inadequate, the procedures should be modified. The Approval Authority. might require modification of the approved program, through the NPDES permit, or might issue an administrative order requiring the adoption of new procedures along the lines of those included in the PCME Guidance. 

Even where the SIUs have a low level of significant non- compliance, the Approval Authority should review the performance of the control Authority to ensure that it is, in fact., implementing its enforcement procedures and that. the procedures are adequate to obtain remedies for noncompliance. For example, where a Control Authority fails to identify all violations or fails to respond to violations when they do occur, the POTW should normally be identified as in noncompliance on the QNCR. 
15 

c. Local limits 

A POTW that has violations of its NPDES permit limitations 

which are attributed to interference or pass-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 should berincluded 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 assessing the effectiveness of 

enforcement of local limits, the same criteria sqould be applied 

as for enforcement of national pretreatment standards. 

4. Any Other Violation(s) of Concern to the Approval 

Authority 

T~is criterion allows the Approval Authority to identify any 

POTW as in reportable noncompliance for a single violation or any 

combination of violations which are judged to be important even 

though they may not be covered by the specific criteria in the 

definition. These violations might include such violations as 

failure to update an industrial user inventory, failure to staff 

the pretreatment program consistent with the approved program' 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 should be 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 six month 

review. Once the facility is shown on the QNCR, quarterly 

evaluations are needed to update the compliance status on each 

QNCR. 

Compliance with permit effluentllimits, compliance 

schedules, and reporting can be 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 (or periodic report). This tracking would 

allow Regions 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 track the 

overall perform~nce of POTWs with their pretreatment requirements 

and the compliance rates of significant industrial users. Most 

of the data in PPETS will only be indicative of potential 

violations. The apparent violation should be verified as a 

continuing problem before 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 in Table 2. 

once th~ POTW has been reported on the QNCR 'it should 

continue to be reported each quarter until the instance of 

noncompliance is reported as resolved. Compliance with an 

enforcement order (both judicial and administrative) should be 

tracked on the QNCR from the date the order is issued until it is 

met in full. EPA and/or the approved State should verify the 

compliance status of the POTW each quarter once it is listed on 

the QNCR through periodic reports from the POTW, compliance 

inspections, audits, meetings, or by a 308 letter to the POTW for 

compliance data and information on the status of the pretreatment 

implementation violation. , 
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 sampling 
19 

* Water Enforcement National Data Base (WENDB) data elements 

for which data entry is required, not optional. 
20 

v. Reporting on the ONCR 

The Quarterly Noncomplianc£. Report is prepared by NPDES 

states and EPA Regions each quarter. It lists violations of Federally designated- major NPDES 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 permittee may 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 sixty days after the reporting quarter ends. The QNCR covers Federally designated majors. Generally 1 a POTW--eve~--1-MGD---is----automat±cally 

designated as· a major. This includes the vast majority of the 

POTW Control Authorities. All POTW pretreatment implementation violations should be reported on the QNCR, regardless of whether 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 should be the Control Authority for the local pretreatment program. If other municipal permittees are subject to the Control Authority, they should be listed under the comments portion of the entry. The Control Authority is responsible for violations by other permittees covered by the ·control Authority's pretreatment program. Similarly, industrial 

users that contribute to the violation should be listed under 

comments. 
21 

B. Description of the Noncompliance 

Under the permittee's name and_permit number, information 

on each instance of noncompliance must be reported. For pretreatment v~olations, the-description should summarize the criteria that were violated and reference the QNCR Regulation subparagraph. The subparagraph of the August 1985 Regulations that apply would_be as follows: 

Type ·of violation 

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 or violations 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 listed under the type of violation 

as the example (Section VI) shows. 

Each violation should include the date. If the· 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 Agency may have discovered the violation through an audit or inspection of the POTW program. The inspection/audit date should be noted · under comments. In the examples, all dates on the QNCR are written in six digit numbers representing the month, day, and 

year. The date, January 9, 1987 is entered as 010987 for the PCS generated QNCR. 

The violation date of some implementation requirements may be the date the pro'gram was approved. Where the POTW has taken 

no action to implement a requirement since approval of the 

program, this beginning date would be appropriate. In other 

cases, the POTW may have been issued a specific deadline. These deadlines may be established through a permit or a compliance order. For example, some programs require annual inspections of 
22 

all SIUs as a condi~ion of the NPDES permit but d9 not establish 

specific timeframes. In the absence of a particular compliance date, the specific deadline should be assumed to be one·year after the effective date of the NPDES permit. Thus, the initial 

date of the violation is one year after the effective date of the 

permit. 

The Region or approved State should contact the POTW 

.promptly when a pretreatment implementation violation is 

detected. The Region/State should. also indicate the action taken. 

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 should be timely and escalate to formal 

enforcement (an administrative order or judicial referral) if the 

POTW fails or is unable to comply·in,a timely fashion. The date 

the action was taken should also be indicated. Planned actions 

by the POTW or its IUs and projected dates should be 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 or pattern of violations is continuing. "Resolved ~ending" means the 

permittee is making acceptable progress according to an 

enforceable schedule (i.e., through an administrative or judicial order) to correct the violation. "Resolved" means the permittee 

no longer exceeds the QNCR criteria for which they are listed. 

For the "noncompliance" and "resolved pending" status, the status 

date is generally the last date of the report period. The status 

date for "resolved" is either the date the noncompliance requirement is fulfilled Qr the last day of the report period in 

which the permittee no longer meets ~he QNCR criteria. 

The "comments" column can be used to describe the violation, explain permittee progress, indicate potential remedies, project dates of compliance, and explain agency responses. Other 

information can also be reported under comments, including the 

name of noncomplying SIUs: the level of performance or degree of failure by the POTW; the names of other permittees that are 

covered by the Control Authority; agency plans for training or 

technical assistance; and the manner in which the agency learned 

of the violation. 
23 

VI. Example of Reporting on the ONCB 

The following example illustrate.s how violations and .Agency 

responses are reported. This is a moderate-sized POTW that has 

refused to implement the program • 

. Scenario: Hometown's pretreatment program was approved in June 

1985. The permit required an annual. report, fifteen days after 

the end of each year, beginning January 15, 1986. The program 

required that permits be issued to 15 SIUs by June 30, 1986. The 

POTW was audited in August 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 

INSTANCE OF · REG 

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 report by 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 other permittees: s~burb One, Permit No. us 00008 and Suburb Two, Permit No. 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 other permittees. ·Three reportable noncompliance 

criteria were exceeded (see sections I and II of this -guidance).· 
24 

The annual report was due January 15, 1987, according to the NPDES permit for Hometown. The approved program was the basis . for the other reported violations. The "reg subpara" '' identifies the section of the exis~ing QNCR which covers the violations. The State has called the city which promised to submit~ t:he ' annual 

report. After discussion with the city and its outlying:· jurisdictions, an administrative ord.er was issued with ~: compliance schedule to resolve all three violations. Hometown is following an enforceable schedule that will lead to 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 Significant Noncompliance for Failure to Implement Approved Pretreatment Prog~ 

This Guidance establishes criteria for determining when a POTW's failure to implement pretreatment program requirements meets the level of significant noncompliance. In all instances where the violation is judged to be SNC, the violation must 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, the violation must be resolved or EPA or the approved State must take formal enforcement 

appears on the 

action 

second 

to 

QNCR. 

resolve the violation before the ~ 

In the rare circumstances ~ere formal enforcement is not taken and the violation not resolved, the administering agency must prepare a written record to justify 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 should make 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. 

\