Jump to main content.

Compliance and Enforcement Quick Finder

 

NPDES Storm Water Construction Expedited Settlement Offer (ESO) Enforcement Initiative

Storm Water Expedited Settlement OfferTable of Contents:

ESO Memorandum

DATE: August 26, 2003
   
SUBJECT: Expedited Settlement Offer Program for Storm Water (Construction)
   
FROM: John Peter Suarez, Assistant Administrator
Office of Enforcement and Compliance Assurance
   
TO:

Water Management Division Directors
Regions I - X

Enforcement Division Directors
Regions II, VI, VIII

Regional Counsels
Regions I - X

   

This memorandum transmits the final framework for the Expedited Settlement Offer (ESO) Program for Storm Water. The joint regional and Office of Regulatory Enforcement staff workgroup developed: an ESO scope and procedure document; an inspection check-off sheet; a penalty calculation worksheet and a model ESO settlement agreement (attached) in an effort to have a consistent and uniform program throughout the country. I want to thank Regions I, III, IV, VI, VII, VIII and X for their active participation in the development of the ESO program for storm water. I also want to acknowledge the efforts of Regions III and VI in performing the field test of the program earlier this spring. This effort could not have been accomplished without the experience, knowledge and expertise of all of the workgroup members.

Storm water cases often involve facilities or sites where the cumulative effect of discharges can have significant environmental impact on a watershed. In storm water cases, issuing timely and consistent enforcement actions to compel compliance is necessary to achieve deterrence and insure timely correction of violations. An ESO provides "real time" enforcement in situations where violations can be corrected quickly and a penalty assessed within a short amount of time, generally a few months from EPA's discovery of the violation.

The purpose of expedited settlements is to supplement, not replace, the traditional administrative and judicial enforcement options. The program enables the regions to establish a credible and pervasive field presence. Traditional enforcement actions should be pursued for all violations where an expedited settlement is not adequate to address the level of non-compliance or the nature of the violator (e.g., where there is a significant environmental harm, large economic benefit, repeat violator), or where the violator declines the offer for expedited settlement.

In order to ensure that the ESO is used appropriately, regions must consider the ESO criteria. Sites that meet all of the following criteria can be ESO-eligible: (1) construction sites up to 50 acres1; (2) sites where the penalty calculated via the ESO worksheet is no more than $15,000; (3) sites where there is no evidence of significant environmental impact (e.g., turbidity observed in receiving water); (4) sites where the operator is a first-time violator; and (5) sites where there are no non-allowable storm water discharges (e.g., a process wastewater discharge such as truck washing or discharge from a concrete batch plant operation). After one year of implementation, ORE in consultation with the regions will evaluate the criteria and the effectiveness of the ESO for storm water and make any changes that may be needed to ensure the continued usefulness of this program.

Regions may use ESOs for storm water upon providing a memorandum to ORE/Water Enforcement Division that they are committed to using the ESO as part of a complete storm water enforcement program that will encompass other administrative penalty cases and judicial referrals as appropriate. In addition, regions must commit that the ESO for storm water will complement, rather than substitute for other formal Section 402 enforcement. Finally, regions must also state that they will use the ESO as developed and that they will not revise or edit the documents, including the criteria determining which sites are eligible for ESOs, without obtaining prior approval by WED. ORE will review the regional ESOs to maintain the uniformity of the nationally-implemented criteria and penalty schedules.

ORE looks forward to working with the regions in exploring meaningful and effective opportunities to use the ESO for storm water. For specific questions, please contact Lauren V. Kabler in the Water Enforcement Division at (202) 564-4052.

Footnote

  1. ESOs for sites over 50 acres will be considered by the Water Enforcement Division on a case-by-case basis provided that the ESO is part of a complete storm water enforcement program as detailed in the final framework.

Region 6 Commitment Letter

DATE: September 19, 2003
   
SUBJECT: Expedited Settlement Offer Program for Storm Water (Construction) Commitment Letter
   
FROM: Samuel Coleman, P.E., Director
Compliance Assurance and Enforcement Division
   
TO: Mark Pollins, Director
Water Enforcement Division
Office of Regulatory Enforcement (2243A)
   

As requested by John Peter Surez's memorandum of August 26, 2003, this this memorandum is to indicate Region 6's committment to using the Expedited Settlement Offer (ESO) Program as part of a complete storm water enforcement program that will encompass other administrative penalty cases and judicial referrals, as appropriate.

In addition, Region 6 agrees that the ESO Program for storm water will complement, rather than substitute for other formal Section 301 and 402 enforcement. Region 6 will use the ESO as developed and will not revise or edit the documents, including the criteria determining which sites are eligible for ESOs, without obtaining prior approval by the Water Enforcement Division.

Region 6 is committed to maintaining uniformity with the nationally-implemented criteria and penalty schedules. Region 6 is also committed to assuring compliance with the Clean Water Act and achieving the goals of the Act, including taking all necessary and appropriate steps to assure expeditious resolution to environmental violations.

Instructions Provided in the ESO package to the Violators

The following are the instructions provided to the Violators. It is also available in the following formats for printing and mailing:

EXPEDITED STORM WATER SETTLEMENT INSTRUCTIONS & AGREEMENT

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 6
1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733

The United States Environmental Protection Agency (EPA) has authority under Section 309 of the Clean Water Act to pursue civil penalties for violations of the storm water regulations. EPA encourages the expedited settlement of certain easily verifiable violations of storm water requirements, such as the violations cited in the Expedited Settlement Agreement for which these instructions are provided.

You may resolve the cited violations quickly by signing and returning the original Expedited Settlement Agreement and paying the penalty amount within 30 days of your receipt of the Expedited Settlement Agreement. As a condition of the settlement, you must also correct the violations within 30 days of your receipt of the Expedited Settlement Agreement. After a 30 day public comment period and once fully executed by EPA the Expedited Settlement Agreement is binding on EPA and the owner or operator. Upon signing and returning of the Expedited Settlement Agreement and a check for the amount of the penalty, copies of which should be retained by you, this will resolve these civil penalty claims for these violations. EPA will not accept or approve any Expedited Settlement Agreement returned more than 30 days after the date of your receipt of the settlement agreement.

If you do not sign and return the Expedited Settlement Agreement with payment of the penalty amount within 30 days of your receipt of the Expedited Settlement Agreement the Expedited Settlement Agreement will be automatically withdrawn, without prejudice to EPA's ability to file an enforcement action for the above or any other violations. Failure to return the Expedited Settlement Agreement within the approved time does not relieve you of the responsibility to comply fully with the regulations, including correcting the violations that have been specifically identified in the Expedited Settlement Offer Worksheet Findings and Alleged Violations form. If you decide not to sign and return the Expedited Settlement Agreement and pay the penalty, EPA may pursue more formal enforcement measures to correct the violation(s) and seek penalties of up to a maximum penalty of $32,500 per day per violation.

You are required in the Expedited Settlement Agreement to certify that you have corrected the violations and paid the penalty amount. The payment for the penalty amount must be in the form of a bank, cashiers or certified check payable to the "Treasurer, United States of America" with EPA and the Docket Number of the Expedited Settlement Agreement written on the check. The Docket Number is located at the top of the Expedited Settlement Agreement.

The original, signed, Expedited Settlement Agreement and a copy of the check payment of the penalty amount must be sent via CERTIFIED MAIL to the address listed at the top of the Expedited Settlement Agreement. The original check payment of the penalty amount must be sent to the address listed in the lower left hand column of the Expedited Settlement Agreement.

By the terms of the Expedited Settlement Agreement, you waive your opportunity for a hearing pursuant to Section 309 of the Clean Water Act. EPA will treat any response to the proposed Expedited Settlement Agreement, other than acceptance of the settlement offer, as an indication that the recipient is not interested in pursuing this expedited settlement procedure.

If you have any questions, you may contact Mr. Taylor Sharpe at 214-665-7112.

Criteria for Determining Eligibility for ESOs

The following are the ESO criteria to determine eligibility of violators to resolve NPDES storm water construction violations through the ESO. It is also available in Word Perfect for printing and mailing.

EXPEDITED SETTLEMENT OFFER ("ESO") for STORM WATER (Construction)

Scope

Storm water cases often involve facilities or sites where the cumulative effect of discharges can have significant environmental impact. In storm water cases, issuing timely and consistent enforcement actions to compel compliance is necessary to achieve the goal of deterrence. This can be achieved through issuing an expedited settlement offer ("ESO") pursuant to the revisions to the "Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation, Termination or Suspension of Permits" ("Consolidated Rules"), 40 C.F.R. Part 22, particularly 40 C.F.R. § 22.13(b).1 An ESO provides "real time" enforcement in situations where violations can be quickly corrected and a penalty collected within a short amount of time, generally a few months from EPA's discovery of the violation.

The revisions to Part 22 provide a less resource-intensive mechanism for processing widespread violations associated with relatively small penalty amounts. Relatively limited penalty amounts are contemplated by this approach in keeping with the nature of the violations and the violator. The size of the penalty for each violation is important to the success of an expedited settlement program.

The purpose of expedited settlements is to supplement, not replace, the traditional administrative and judicial enforcement options. The program enables the regions to establish a credible and pervasive field presence. Traditional enforcement actions should be pursued for all violations where an expedited settlement is not adequate to address the level of non-compliance or the nature of the violator (e.g., where there is a significant environmental harm, large economic benefit, repeat violator), or where the violator declines the offer for expedited settlement.

Regions may use ESOs for storm water upon providing a memorandum to ORE/Water Enforcement Division that they are committed to using the ESO as part of a complete storm water enforcement program that will encompass other administrative penalty cases and judicial referrals as appropriate. In addition, regions must commit that the ESO for storm water will complement, rather than substitute for other formal Section 402 enforcement. Finally, regions must also state that they will use the ESO as developed and that they will not revise or edit the documents, including the criteria determining which sites are eligible for ESOs, without obtaining prior approval by WED. ESOs for sites over fifty acres will be considered by WED on a case-by-case basis provided that the ESO is part of a complete storm water enforcement program as detailed in the final framework. The regions must seek WED approval if they wish to use the ESO at sites larger than fifty acres. ORE will review the regional ESOs to maintain the uniformity of the nationally-implemented criteria and penalty schedules. After one year of implementation, ORE will evaluate the effectiveness of the ESO for storm water and make any changes that may be needed to ensure the continued usefulness of this tool.

Terminology

A. The Inspector Worksheet is the NPDES Industrial Storm Water Worksheet for Construction. It is the worksheet that an inspector uses in the field when conducting an inspection - each block cross-references the applicable ESO element(s) allowing an inspector to quickly and easily transfer inspection findings to ESO Worksheet and calculate a proposed penalty.2

B. The ESO Worksheet is the Expedited Settlement Offer Worksheet - Findings and Alleged Violations. It is the worksheet that an inspector uses to calculate a proposed or recommended penalty for the site based on the inspector's findings - it will be incorporated by reference into the ESO Settlement Agreement.

C. The ESO Agreement is the Expedited Stormwater Settlement Agreement. It is a combined "Complaint" and "Consent Agreement and Final Order."

D. The ESO Criteria, as follows, controls which sites are ESO-eligible. Sites which meet all of the following criteria can be ESO-eligible: (1) construction sites up to fifty acres; (2) sites where the penalty calculated via the ESO worksheet is no more than $15,000; (3) sites where there is no evidence of significant environmental impact (e.g., turbidity observed in receiving water); (4) sites where the operator is a first-time violator3; and (5) sites where there is no evidence of non-allowable storm water discharges (e.g., process wastewater discharge, such as truck washing or discharge from a concrete batch plant operation).

Procedure

  1. Inspector conducts a storm water inspection using the Inspector Worksheet
    for Construction.
  2. The inspector consults the ESO Criteria to determine whether the site is
    ESO-eligible.
  3. If the inspector determines that the site is ESO-eligible, the inspector transfers the findings to the ESO Worksheet and calculates a proposed penalty.
  4. a. The inspector leaves the ESO Worksheet (proposed penalty) in the field with
    the site representative4; or,
    b. The inspector does not leave the ESO Worksheet in the field with the site representative. Some regions may require that the ESO Worksheet undergo supervisor review and approval before it is delivered to a site representative.
  5. A supervisor reviews the Inspector Worksheet and ESO Worksheet and either approves or does not approve the proposed penalty. If the penalty is approved, the ESO Agreement, along with attached instruction sheet, and ESO worksheet are mailed to the site representative within seven business days of the inspection.5
  6. The site representative is given thirty days to return a signed ESO Agreement accompanied by a check. The check will be deposited in an interest-bearing escrow account.6 If the signed ESO Agreement is not received within thirty days the ESO is automatically withdrawn. If the offer is withdrawn the region should be prepared to escalate enforcement response by commencing an administrative enforcement proceeding under 40 C.F.R. Part 22.
  7. Link to Public Notice Web PageThe region provides for a thirty day public notice of ESO Agreement. Some regions may choose to public notice the ESO Agreement concurrent with the thirty days the violator has to correct the violation and sign the ESO Agreement. Other regions may choose to public notice the ESO Agreement after it has been signed by the violator and returned to EPA.
  8. Regions are required to consider any public comments received regarding the ESO in order to determine, after reviewing the comments, whether the ESO is in the public interest. If a region determines, after a mandatory ten day period following the close of the comment period, that the ESO is in the public interest, the Appropriate Official at a region (e.g., an approving neutral, like a Regional Judicial Officer) will sign the Agreement. Regions will file the signed ESO Agreement with a Hearing Clerk, mail the original back to the site representative and mail a copy to any commenters informing them of their right to file with the Regional Administrator a petition to set aside the ESO pursuant to §309(g)(4)(C) of the Act, 33 U.S.C. §1319(g)(4)(C) and Part 22. The ESO is effective thirty days after signature by the Appropriate Official, unless a petition to set aside the ESO Agreement is filed by a commenter.

Footnotes

  1. The ESO is a settlement approach and the ESO worksheet is not intended , and should not be used as, the basis for a penalty demand in an administrative penalty hearing or a judicial trial. The ESO settlement penalty is not intended for use by EPA, defendants, respondents, courts, or administrative law judges at a hearing or in a trial. Further, whether the Agency decides to use the ESO approach is purely within EPA's discretion.
  2. Use of this form is not mandatory - it is merely provided as a tool to for the inspector.
  3. "Violator" refers to any operator who has been issued a formal enforcement action, or APO, by either EPA or a state for violation of either the MSGP or the CGP.
  4. The inspector must clearly explain to the site representative that the penalty left in the field by the inspector is a proposed penalty and that it is not an official offer by EPA to settle the government's civil penalty claims against the respondent. A final offer will be mailed to the site recipient by EPA upon supervisor review and approval.
  5. Some regions may choose to send an administrative order at this time as well.
  6. Requesting check prior to public notice guards against collection actions, however, some regions may choose not to accept a check prior to public notice. If this is the case, a region may request that the check be mailed within thirty days of receiving the final signed ESO Agreement from the region.

2003 Storm Water Compliance and Enforcement Strategy Memorandum

SUBJECT: 2003 Storm Water Compliance and Enforcement Strategy
   
FROM:

Walker B. Smith, Director
Office of Regulatory Enforcement

Michael M. Stahl, Director
Office of Compliance
   
TO:

Water Management Division Directors
Regions I - X

Enforcement Division Directors
Regions II, VI, VIII

Regional Counsel
Regions I - X
   

This memorandum transmits the final 2003 Storm Water Compliance and Enforcement Strategy (Strategy) developed by the Office of Regulatory Enforcement and the Office of Compliance. We want to thank all ten Regions and the Office of Water for their active participation in the development of this strategy. This effort could not have been accomplished without their experience, knowledge, and expertise.

The purpose of this national strategy is to improve compliance with storm water requirements and protect our nation's waters from the harmful effects of polluted storm water. The NPDES storm water requirements have been in effect for more than ten years. However, EPA and state storm water inspection data reveal that a majority of industrial facilities inspected over the last ten years do not have an NPDES storm water permit. Moreover, there is significant non-compliance at permitted sites.

Storm water runoff is a major cause of water quality impairment. According to the Report to Congress on The Phase I Storm Water Regulations (U.S. EPA, 2000), urban storm water runoff contributes to 13 percent of impaired river and stream miles, 21 percent of impaired lake acres, 55 percent of impaired ocean shoreline miles, and 46 percent of impaired estuary square miles. Storm water runoff can carry high levels of pollutants such as sediment, oil and grease, suspended solids, nutrients, heavy metals, pathogens, toxins, and trash into sewer systems and ultimately into our streams, rivers, lakes, estuaries, wetlands, and oceans. This creates an unhealthy environment for aquatic organisms, wildlife and humans (U.S. EPA, 1992, Environmental Impacts of Storm Water Discharges: A National Profile).

The Strategy was developed for use by EPA Regions. In addition, the Regions are encouraged to work with their states in adopting similar approaches to storm water enforcement. The IG Audit, "State Enforcement of Clean Water Act Dischargers Can be More Effective," noted the need for states to have more effective risk-based enforcement strategies to better protect human health and the environment and to meet the goals of the CWA. The Strategy anticipates a strong EPA/state partnership to address non-compliance with storm water requirements.

The Strategy provides two model storm water compliance and enforcement approaches for Regions and states to use in developing and implementing their own strategies to address this non-compliance problem. The first is a sector-based enforcement model which focuses on particular industrial sectors with low compliance rates. The second provides a watershed-based enforcement model which identifies a vulnerable watershed with significant impacts due to a variety of industrial storm water sources. Both models rely on risk-based targeting to identify industrial storm water discharges causing significant environmental impacts. The Strategy also includes: (1) a storm water training program for inspectors and enforcement officers; (2) a storm water expedited settlement offer program; (3) guidance for application of the CWA Penalty Policy to storm water cases; (4) field tools, such as inspector check-off sheets and compliance assistance material; and, (5) enforcement tools, including a legal forms database for storm water, enforcement strategies, and non-compliance scoring criteria. Finally, the Strategy discusses compliance and enforcement priorities for the Phase II storm water requirements which became effective in March 2003 (small construction and regulated small MS4s).

The Strategy reflects continuing work in the area of storm water enforcement. This effort has enjoyed steady support and participation by the Regions which is greatly appreciated. If you have any questions regarding this document, please contact Mark Pollins, Director, Water Enforcement Division at (202) 564-4001 or Jim Edward, Director, Compliance Assistance and Sector Programs Division at (202) 564-2462, or have your staff contact Lauren Kabler of the Water Enforcement Division at (202) 564-4052.

Attachment(s)

cc:

  • Enforcement Coordinators, Regions I - X
  • Compliance Branch Chiefs, Regions I - X
  • NPDES Permits Branch Chiefs, Region I - X
  • Water Enforcement Branch Chiefs, ORC, Regions I - X
  • Storm Water Coordinators, Regions I - X

ESO Region 6 Process

  1. The Inspector performs an NPDES storm water inspection using an Inspector Worksheet for each party that is an "operator" and subject to the NPDES program. It is anticipated that many times there will be more than one party that is an operator and each party will receive a separate inspection and settlement.
    1. Construction Inspector Worksheet:
      1. Word Perfect file format
      2. Adobe Acrobat file format
    2. ESO Penalty Worksheet
      1. Microsoft Excel file format
      2. Adobe Acrobat file format
  2. The Inspector transfers the inspection findings from the Inspector Worksheet to the ESO Penalty Worksheet and calculates proposed penalty. Prior to completion of the ESO Worksheet, the Inspector will assure that the party being inspected meetings the ESO Criteria. If the facility is eligible, then the Inspector will give the site representative a copy of the ESO Worksheet and explain the ESO process during the Exit Interview. The Inspector Worksheet will not be left in the field.
  3. Penalty Package prepared by Enforcement Officer
    1. Cover Letter
      1. Word Perfect
      2. Adobe Acrobat PDF
    2. Instructions to Violators
      1. Word Perfect format
      2. Adobe Acrobat PDF format
    3. ESO Agreement
      1. Word Perfect
      2. Adobe Acrobat PDF
    4. ESO Penalty Worksheet
      1. Microsoft Excel file format
      2. Adobe Acrobat file form
    5. Administrative Order
      1. Word Perfect
      2. Adobe Acrobat PDF
    6. Informational Forms
      1. SBREFA (PDF)
      2. SEC form (PDF)
  4. The site representative is given 30 days from the postmark of the date of the EPA letter to return the signed ESO Agreement.
    1. The site representative returns the ESO Agreement to the Region along with a photocopy of the check to:
      1. U.S. EPA Region 6
        Docket No.:___________________
        P.O. Box 50625
        Dallas, TX 75250-0625
    2. The check shall be mailed to:
      1. Regional Hearing Clerk
        U.S. EPA, Region 6
        Docket No.:___________________
        P.O. Box 360582M
        Pittsburgh, PA 15251
  5. Enforcement Officers will track the ESO Agreement and AO issued to the site representative to assure a response to the AO. If the ESO is not returned and postmarked within thirty (30) days of EPA mailing the ESO Agreement, then the offer is withdrawn, and a Show Cause Order will be drafted. Any penalty settlements made after the ESO Offer is withdrawn will be handled by the current EPA civil settlement policy for NPDES storm water violations.
  6. The AO will compel compliance and require a response. Those who do not initiate the ESO process are required by the AO to arrange for a Show Cause meeting within 45 days of the letter.
  7. If the ESO is returned, and signed, EPA routes the following package:
    1. Cover Letter (PDF)
    2. ESO Agreement (original returned and signed by Respondent, being routed for EPA signatures)
  8. The Region will provide for a 30 day public notice of the ESO Agreement.
  9. Ten (10) days after public notice terminates, the Region will sign the ESO Agreement and mail it back to the site representative(s). Thirty (30) days later, the ESO Agreement goes into effect.

Time Line

  1. Inspection (inspection report & worksheet returned to Region)
  2. ESO Worksheet, ESO Agreement Offer reviewed by Branch Chief. The ESO package is put together and cover letter signed by the Branch Chief and the AO signed by the Division Director.
  3. 30 days - waiting for response.
  4. ESO Returned to EPA signed by Respondent.
  5. 30 Days Public Notice
  6. Wait 10 days
  7. Branch Chief or Division Director signs ESO Agreement (represents signature as complainant).
  8. Regional Administrator signs the ESO Agreement.
  9. File with Hearing Clerk.
  10. ESO Agreement mailed to Respondent.
  11. 30 Days after filing with Hearing Clerk, it becomes effective.

 

Local Navigation

Jump to main content.