40 CFR § 123.26 - Requirements for compliance evaluation programs.

§ 123.26 Requirements for compliance evaluation programs.

(a) State programs shall have procedures for receipt, evaluation, retention and investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation for possible enforcement of failure to submit these notices and reports).

(b) State programs shall have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements. The State shall implement and maintain:

(1) An automated, computerized system which is capable of identifying and tracking all facilities and activities subject to the State Director's authority and any instances of noncompliance with permit or other program requirements (e.g., identifying noncompliance with an automated, computerized program to compare permit limits to reported measurements). State programs must maintain a management information system which supports the compliance evaluation activities of this part (e.g., source inventories; compliance determinations based upon discharge monitoring reports, other submitted reports, and determinations of noncompliance made from inspection or document reviews; and subsequent violation notices, enforcement actions, orders, and penalties) and complies with 40 CFR part 3 (Cross-Media Electronic Reporting Regulation) and 40 CFR part 127 (NPDES Electronic Reporting Requirements). State programs may use EPA's national NPDES data system for their automated, computerized system;

(2) A program for periodic inspections of the facilities and activities subject to regulation. These inspections shall be conducted in a manner designed to:

(i) Determine compliance or noncompliance with issued permit conditions and other program requirements;

(ii) Verify the accuracy of information submitted by permittees and other regulated persons in reporting forms and other forms supplying monitoring data;

(iii) Verify the adequacy of sampling, monitoring, and other methods used by permittees and other regulated persons to develop that information; and

(iv) Protect surface waters and public health.

(3) A program for investigating information obtained regarding violations of applicable program and permit requirements; and

(4) Procedures for receiving and ensuring proper consideration of information submitted by the Public about violations. Public effort in reporting violations shall be encouraged, and the State Director shall make available information on reporting procedures.

(c) The State Director and State officers engaged in compliance evaluation shall have authority to enter any site or premises subject to regulation or in which records relevant to program operation are kept in order to copy any records, inspect, monitor or otherwise investigate compliance with the State program including compliance with permit conditions and other program requirements. States whose law requires a search warrant before entry conform with this requirement.

(d) Investigatory inspections shall be conducted, samples shall be taken and other information shall be gathered in a manner (e.g., using proper “chain of custody” procedures) that will produce evidence admissible in an enforcement proceeding or in court.

(e) State NPDES compliance evaluation programs shall have procedures and ability for:

(1) Maintaining an automated, computerized system which is capable of managing the comprehensive electronic inventory of all sources covered by NPDES permits and generating an electronic schedule of reports required to be submitted by permittees to the State agency. (Note: State programs may use EPA's national NPDES data system for their automated, computerized system.);

(2) Initial screening (i.e., pre-enforcement evaluation) of all permit or grant-related compliance information to identify violations and to establish priorities for further substantive technical evaluation;

(3) When warranted, conducting a substantive technical evaluation following the initial screening of all permit or grant-related compliance information to determine the appropriate agency response;

(4) Maintaining a management information system which supports the compliance evaluation activities of this part; and

(5) Inspecting the facilities of all major dischargers at least annually.

(f) A state, tribe, or territory that is designated by EPA as an initial recipient of electronic NPDES information, as defined in § 127.2 of this chapter, must maintain the data it collects and electronically transfer the minimum set of NPDES data to EPA through timely data transfers in compliance with all requirements of 40 CFR parts 3 and 127 (including the required data elements in appendix A to part 127). Timely means that the authorized state, tribe, or territory submits these data transfers (see the data elements in appendix A to 40 CFR part 127) to EPA within 40 days of when the state, tribe, or territory completed the activity or received a report submitted by a regulated entity. For example, the data regarding a state inspection of an NPDES-regulated entity that is finalized by the state on October 5th must be electronically transferred to EPA no later than November 14th of that same year (e.g., 40 days after October 5th). EPA must become the initial recipient of electronic NPDES information from NPDES-regulated entities if the state, tribe, or territory does not consistently maintain these timely data transfers or does not comply with 40 CFR parts 3 and 127. See 40 CFR 127.2(b) and 127.27 regarding the initial recipient.

[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989; 63 FR 45122, Aug. 24, 1998; 80 FR 64099, Oct. 22, 2015]

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