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Developing an Enforcement Response Plan - R8PA

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					Developing an Enforcement
      Response Plan




           Stephanie Gieck
EPA Region 8 - NPDES Enforcement Unit
      Why do we do enforcement?
1.   Ensure compliance
2.   Protect the environment/POTW/workers
3.   Deter polluters
4.   Deter others
5.   Level playing field
6.   Punishment
     Why develop/implement an
 Enforcement Response Plan (ERP)??
• Required for approved pretreatment programs
  under 40 CFR 403.8 (f)(5)
• Consistent path when violations occur
• Industries are not as likely to view any
  enforcement as subjective
• Tool…not a paperwork exercise
           What must be in an ERP?
                 40 CFR 403.8(f)(5)(i-iv)
i.   Describe how the publicly owned treatment works
     (POTW) will investigate instances of noncompliance;
ii. Describe the types of escalating enforcement
     responses the POTW will take in response to all
     anticipated types of industrial user violations and the
     time periods within which responses will take place;
iii. Identify (by title) the official(s) responsible for each
     type of response; and
iv. Adequately reflect the POTW's primary responsibility
     to enforce all applicable pretreatment requirements
     and standards.
       Starting an ERP from scratch
• EPA’s 1989 “Guidance for
  Developing Control Authority
  Enforcement Response Plans”
   http://www.epa.gov/npdes/pubs/
   owm0015.pdf

• “EPA Region VIII Model
  Enforcement Response Plan”
   http://www.epa.gov/region8/water/
   Pretreatment/pdf/ModelERP.pdf

• Other POTWs
          Example ERP Outline
1. Introduction/Purpose
2. Definitions/Abbreviations
3. Identifying and Investigating Instances of
   Noncompliance
4. Types of Enforcement Actions
5. Description of Personnel
6. Enforcement Response Guide
7. Significant Noncompliance
        1. Introduction/Purpose
• What is the ERP?
• Why develop an ERP?
• “Adequately reflect the POTW's primary
  responsibility to enforce all applicable
  pretreatment requirements and standards” [40
  CFR 403.8(f)(5)(iv)].
  – Cite legal authority to enforce pretreatment
    requirements and standards
  – Address legal authority in outside jurisdictions (if
    applicable)
       2. Definitions/Acronyms
• Copy and paste applicable terms/acronyms
  from you ordinance/rule & regulations
3. Identifying and Investigating Instances
            of Noncompliance
• “Describe how the publicly owned treatment
  works (POTW) will investigate instances of
  noncompliance” [40 CFR 403.8(f)(5)(i)].
• Other procedures do not need to be included
  in their entirety
• Summarize and reference other procedures
  when applicable (i.e. sampling, inspection,
  industrial waste survey, etc.)
3. Identifying and Investigating Instances
            of Noncompliance
• How does the POTW know when a violation
  has occurred?
  – Industrial Waste Survey/Industrial User Inventory
     • CIU discharging without a permit
     • May have info on an IU causing pass-through or
       interference
  – Monitoring and Inspecting
     • SIU/CIU inspections
     • Initial inspections
     • Authority sampling
3. Identifying and Investigating Instances
            of Noncompliance
  – Compliance Evaluation
     • Review of self-monitoring reports or other notifications
       (24-hour non-compliance, hazardous waste,
       accidental/slug discharge, etc.)
        – Recommended - checklist of self-monitoring/permit
          requirements
     • Records reviews
Side Note: Checklist for Review of Self-
         Monitoring Reports
• May be attached to self-monitoring report after review
• Due date/date received
• Monitoring
   – correct parameters
   – correct sampling frequency
   – compare to permit limits, categorical and local
   – correct sample type
   – sampling/analysis meets 40 CFR Part 136 (holding times,
     analysis method, temperature, preservation, bottle type,
     etc.)
   – Were any violations reported according to noncompliance
     reporting requirements?
• Certification statement(s) signed by authorized personnel
  4. Types of Enforcement Actions
• “Describe the types of escalating enforcement
  responses the POTW will take in response to
  all anticipated types of industrial user
  violations and the time periods within which
  responses will take place” [40 CFR
  403.8(f)(5)(ii)].
• Copy and paste from your ordinance/rules &
  regulations
• DO NOT create new legal authorities in ERP
       5. Description of Personnel
• “Identify (by title) the official(s) responsible for each
  type of response” [40 CFR 403.8(f)(5)(iii)].
• Identify who will have responsibilities to take various
  enforcement actions
• Responsibilities may be defined by your
  ordinance/rules & regulations
• Personnel may be:


                          TO


       Pretreatment                  Utilities Director
         Inspector                   and City Attorney
  6. Enforcement Response Guide
• Matrix/table
• Defines the range of appropriate enforcement
  actions
• Based on the nature and severity of violation
  and other factors (frequency, knowing violation,
  etc.)
• Promotes consistency
• “Describe the types of escalating enforcement
  responses the POTW will take in response to all
  anticipated types of industrial user violations
  and the time periods within which responses
  will take place” [40 CFR 403.8(f)(5)(ii)].
   6. Enforcement Response Guide
• List the anticipated types of violations, such as:
   –   Discharge without a permit
   –   Unauthorized discharge
   –   Violation of a permit limit
   –   Late self-monitoring reports
   –   Failure to submit noncompliance notification
   –   Failure to monitor
   –   Falsification of information/data
   –   Failure to implement best management practices (BMPs)
   –   Etc.
• Refer to the “EPA Region VIII Model Enforcement
  Response Plan” or other POTW’s ERPs for more
  violations
  6. Enforcement Response Guide
• Include nature/severity and other factors, such
  as:
  –   Isolated event
  –   Recurring event
  –   No harm to POTW, human health, or environment
  –   Harm to POTW, human health, and/or environment
  –   Report ≤30 days late
  –   Report >30 days late
  –   Etc.
  6. Enforcement Response Guide
• List range of enforcement actions based on
  the violation and other factors
• Include time frame in matrix or elsewhere in
  ERP
     6. Enforcement Response Guide
         (from “EPA Region VIII Model Enforcement Response Plan”)




List responsible personnel and time frame elsewhere in ERP if not in matrix
     6. Enforcement Response Guide
(from EPA’s 1989 “Guidance for Developing Control Authority Enforcement
                            Response Plans)




          List time frame elsewhere in ERP if not in matrix
7. Significant Noncompliance (SNC)
• Include definition of SNC
• POTW may define additional specific SNC
  criteria as allowed under 40 CFR
  403.8(f)(2)(viii)(H).
• Include or reference any SNC determination
  and publication procedure
  Types of
Enforcement
     Phone call
• Minor/
  infrequent
  violations
• Document it
  – If it’s not
    documented, it
    didn’t happen.
         Types of Enforcement
             Notice of Violation (NOV)
• Informs IU that a violation has occurred
• Minor/infrequent violations
Legal Authority
• Guidance – does not have to be in ordinance,
  simply a communication tool
• Avoid any requirement in ordinance for high level
  personnel to sign NOV
Procedures
• Certified mail or hand delivered
• Keep a copy of the signed NOV in file
         Types of Enforcement
           Administrative Order (AO)
• Direct IU to cease or take specific actions
• May incorporate compliance schedules,
  administrative fines, and termination of
  service
Legal Authority
• Must clearly be in ordinance
Procedures
• POTW must track actions and due dates
          Types of Enforcement
           Administrative Order (AO)
• Types of AOs (Examples in Guidance)
  – Cease and Desist Order
     • Order IU to cease illegal or unauthorized discharge or
       terminate discharge altogether
  – Consent Order
     • Combines an order with a negotiated settlement
     • Includes:
             1) compliance schedule
             2) stipulated fines/remedial actions, and
             3) signature of POTW and IU
     • Signing the order is not admission of liability
          Types of Enforcement
            Administrative Order (AO)
• Types of AOs continued (Examples in Guidance)
  – Show Cause Order
     • Directs IU to appear before Control Authority, explain
       noncompliance, and show cause why more severe
       enforcement actions should not proceed
     • Hearing officer or review board determines whether further
       enforcement should be taken
  – Compliance Order
     • Directs IU to achieve or restore compliance by a given date
     • Includes actions and specific dates
     • POTW must track IU’s performance
         Types of Enforcement
               Administrative Fines
• Monetary penalty, not a civil penalty
• Do not require court intervention unless IU
  refuses or contests
• A result of escalated enforcement if:
  – IU remains in violation despite repeated NOVs
  – IU violates terms of an administrative order (AO)
• Punitive, recapture full or partial economic
  benefit and deter future violations
Types of Enforcement
   Administrative Fines
         Types of Enforcement
              Administrative Fines
Legal Authority
• Must clearly be in ordinance
• Ordinance should detail procedure for
  assessment
  – i.e. fines may be assessed prior to or subsequent
    to a hearing, indicate that fine and dollar amount
    are subject to appeal
• Cite a maximum fine (per violation, per day)
         Types of Enforcement
             Administrative Fines
• Amount of fine:
  – Include economic benefit
  – Recommend developing a fine schedule or fine
    calculation policy
  – Fine must deter to be effective
          Types of Enforcement
               Administrative Fines
• Fine Schedules/Calculation Policy
  – Flat rate - $3,000 per day per violation
  – Flat rate with escalation - $500 per violation,
    increasing by $100 increments for each subsequent
    violation
  – Fine matrix – defines fine based magnitude and other
    factors
  – Fine based on type of violation – defines fine based on
    violation
  – Fine + cost of recovery – fine defined plus POTW
    recovers cost incurred
              Types of Enforcement
                       Administrative Fines
• Amount of fine:
   – Too small – no deterrence
   – Too large of a fine – put industry out of business
Procedure
Assessing fine:
   –   Assess on sewer bill
   –   Include with NOV
   –   Include with an administrative order (AO)
   –   Show Cause Hearing
        • Meeting with POTW and IU
        • Opportunity for IU to appeal the fine
        • IU may present information on ability to pay
            Types of Enforcement
                         Civil Litigation
•   Formal lawsuit against IU
•   Secures court ordered action to correct violations and
    secure penalties
•   Includes enforcement measures that require the
    courts: injunctive relief or settlement agreements
•   Uses
    – Emergency situation
    – Efforts to restore IU compliance through other means have
      failed
    – Impose civil penalty to recover losses due to
      noncompliance, penalty exceeds what POTW can assess
      administratively
         Types of Enforcement
                 Civil Litigation
Legal Authority – Approved program must:
  – be able to seek or assess civil (or criminal)
    penalties at least $1,000 per day, per violation and
  – be able to seek injunctive relief [40 CFR
    403.8(f)(1)(vi)(A)]
             Types of Enforcement
                         Civil Litigation
• Types of civil litigation:
   – Consent Decrees
       • Agreements between the POTW and IU reached after lawsuit is
         filed
       • Signed by POTW, IU, and judge
       • Violator acknowledges/corrects violations
       • Agreement on a penalty
   – Injunctions
       • Court order to cease or take actions
   – Civil Penalties and Cost Recovery
• Refer to Guidance for information on the civil litigation
  process
         Types of Enforcement
         Criminal
• Knowing and willful
  violations
• Review State statutes
  authorizing local
  government to
  prosecute criminal acts
• Criminal cases are
  frequently referred to
  EPA and/or State
            Types of Enforcement
          Termination of Sewer Service
Legal Authority
• Must be in ordinance
Procedure
Should have a procedure in place
  –   Should include notice to the facility
  –   Physically sever service
  –   Cease and desist order
  –   Revoking a discharge permit
         Types of Enforcement
      Supplemental Enforcement Actions
• Could include:
  – Public notices (i.e. SNC publication)
  – Water service termination
  – Referral to EPA or State
  – Supplemental Environmental Projects (SEPs)
Legal Authority
• May or may not need to be in ordinance
  Important Reminder

POTWs are required to:
      Develop
        AND
    Implement
      an ERP

				
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posted:11/5/2012
language:English
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