40 CFR 123.45 - Noncompliance and program reporting by the Director.

§ 123.45 Noncompliance and program reporting by the Director.
The Director shall prepare quarterly, semi-annual, and annual reports as detailed below. When the State is the permit-issuing authority, the State Director shall submit all reports required under this section to the Regional Administrator, and the EPA Region in turn shall submit the State reports to EPA Headquarters. When EPA is the permit-issuing authority, the Regional Administrator shall submit all reports required under this section to EPA Headquarters.
(a) Quarterly reports. The Director shall submit quarterly narrative reports for major permittees as follows:
(1) Format. The report shall use the following format:
(i) Provide a separate list of major NPDES permittees which shall be subcategorized as non-POTWs, POTWs, and Federal permittees.
(ii) Alphabetize each list by permittee name. When two or more permittees have the same name, the permittee with the lowest permit number shall be entered first.
(iii) For each permittee on the list, include the following information in the following order:
(A) The name, location, and permit number.
(B) A brief description and date of each instance of noncompliance for which paragraph (a)(2) of this section requires reporting. Each listing shall indicate each specific provision of paragraph (a)(2) (e.g., (ii)(A) thru (iii)(G)) which describes the reason for reporting the violation on the quarterly report.
(C) The date(s), and a brief description of the action(s) taken by the Director to ensure compliance.
(D) The status of the instance(s) of noncompliance and the date noncompliance was resolved.
(E) Any details which tend to explain or mitigate the instance(s) of noncompliance.
(2) Instances of noncompliance by major dischargers to be reported—
(i) General. Instances of noncompliance, as defined in paragraphs (a)(2)(ii) and (iii) of this section, by major dischargers shall be reported in successive reports until the noncompliance is reported as resolved (i.e., the permittee is no longer violating the permit conditions reported as noncompliance in the QNCR). Once an instance of noncompliance is reported as resolved in the QNCR, it need not appear in subsequent reports.
(A) All reported violations must be listed on the QNCR for the reporting period when the violation occurred, even if the violation is resolved during that reporting period.
(B) All permittees under current enforcement orders (i.e., administrative and judicial orders and consent decrees) for previous instances of noncompliance must be listed in the QNCR until the orders have been satisfied in full and the permittee is in compliance with permit conditions. If the permittee is in compliance with the enforcement order, but has not achieved full compliance with permit conditions, the compliance status shall be reported as “resolved pending,” but the permittee will continue to be listed on the QNCR.
(ii) Category I noncompliance. The following instances of noncompliance by major dischargers are Category I noncompliance:
(A) Violations of conditions in enforcement orders except compliance schedules and reports.
(B) Violations of compliance schedule milestones for starting construction, completing construction, and attaining final compliance by 90 days or more from the date of the milestone specified in an enforcement order or a permit.
(C) Violations of permit effluent limits that exceed the Appendix A “Criteria for Noncompliance Reporting in the NPDES Program”.
(D) Failure to provide a compliance schedule report for final compliance or a monitoring report. This applies when the permittee has failed to submit a final compliance schedule progress report, pretreatment report, or a Discharge Monitoring Report within 30 days from the due date specified in an enforcement order or a permit.
(iii) Category II noncompliance. Category II noncompliance includes violations of permit conditions which the Agency believes to be of substantial concern and may not meet the Category I criteria. The following are instances of noncompliance which must be reported as Category II noncompliance unless the same violation meets the criteria for Category I noncompliance:
(A) (1) Violation of a permit limit;
(2) An unauthorized bypass;
(3) An unpermitted discharge; or
(4) A pass-through of pollutants which causes or has the potential to cause a water quality problem (e.g., fish kills, oil sheens) or health problems (e.g., beach closings, fishing bans, or other restrictions of beneficial uses).
(B) Failure of an approved POTW to implement its approved pretreatment program adequately including failure to enforce industrial pretreatment requirements on industrial users as required in the approved program.
(C) Violations of any compliance schedule milestones (except those milestones listed in paragraph (a)(2)(ii)(B) of this section) by 90 days or more from the date specified in an enforcement order or a permit.
(D) Failure of the permittee to provide reports (other than those reports listed in paragraph (a)(2)(ii)(D) of this section) within 30 days from the due date specified in an enforcement order or a permit.
(E) Instances when the required reports provided by the permittee are so deficient or incomplete as to cause misunderstanding by the Director and thus impede the review of the status of compliance.
(F) Violations of narrative requirements (e.g., requirements to develop Spill Prevention Control and Countermeasure Plans and requirements to implement Best Management Practices), which are of substantial concern to the regulatory agency.
(G) Any other violation or group of permit violations which the Director or Regional Administrator considers to be of substantial concern.
(b) Semi-annual statistical summary report. Summary information shall be provided twice a year on the number of major permittees with two or more violations of the same monthly average permit limitation in a six month period, including those otherwise reported under paragraph (a) of this section. This report shall be submitted at the same time, according to the Federal fiscal year calendar, as the first and third quarter QNCRs.
(c) Annual reports for NPDES—
(1) Annual noncompliance report. Statistical reports shall be submitted by the Director on nonmajor NPDES permittees indicating the total number reviewed, the number of noncomplying nonmajor permittees, the number of enforcement actions, and number of permit modifications extending compliance deadlines. The statistical information shall be organized to follow the types of noncompliance listed in paragraph (a) of this section.
(2) A separate list of nonmajor discharges which are one or more years behind in construction phases of the compliance schedule shall also be submitted in alphabetical order by name and permit number.
(d) Schedule—
(1) For all quarterly reports. On the last working day of May, August, November, and February, the State Director shall submit to the Regional Administrator information concerning noncompliance with NPDES permit requirements by major dischargers in the State in acordance with the following schedule. The Regional Administrator shall prepare and submit information for EPA-issued permits to EPA Headquarters in accordance with the same schedule:
Quarters covered by reports on noncompliance by major dischargers:
[Date for completion of reports]
1 Reports must be made available to the public for inspection and copying on this date.
January, February, and March 1 May 31
April, May, and June 1 August 31
July, August, and September 1 November 30
October, November, and December 1 February 28
(2) For all annual reports. The period for annual reports shall be for the calendar year ending December 31, with reports completed and available to the public no more than 60 days later.
(Approved by the Office of Management and Budget under control number 2040-0082)
[48 FR 14178, Apr. 1, 1983, as amended at 50 FR 34653, Aug. 26, 1985; 54 FR 18785, May 2, 1989; 63 FR 45123, Aug. 24, 1998]
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§ 123.45 Noncompliance and program reporting by the Director.

As of December 21, 2021 EPA must prepare public (quarterly and annual) reports as set forth here from information that is required to be submitted by NPDES-regulated facilities and the State Director.

(a) NPDES noncompliance reports (NNCR) - quarterly. EPA must produce an online report on a quarterly basis with the minimum content specified here. The Director must electronically submit timely, accurate, and complete data to EPA that allows EPA to prepare these quarterly NNCRs.

(1) Content. The NNCR must include the following information:

(i) A facility specific list of NPDES-regulated entities in violation, including non-POTWs, POTWs, Federal permittees, major facilities, and nonmajor facilities, as well as a list of CWA point sources that did not obtain NPDES permits authorizing discharges of pollutants to waters of the United States.

(ii) For each identified NPDES-regulated entity in violation of the Clean Water Act:

(A) The name, location, and permit number or other identification number, if a permit does not exist.

(B) Information describing identified violation(s) that occurred in that quarter, including the date(s) on which violation(s) started and ended (if applicable). Where applicable, the information must indicate the pipe, parameter, and the effluent limit(s) violated. Violations must be classified as Category I and II as described in paragraph (a)(2) of this section.

(C) The date(s) and type of formal enforcement and written informal enforcement action(s) taken by the Director to respond to violation(s), including any penalties assessed.

(D) The status of the violation(s) (e.g., corrected or continuing, and the date that the violation(s) was resolved), which can be reported by linking violations to specific enforcement actions, or tracking noncompliance end dates.

(E) Any optional details that may help explain the instance(s) of noncompliance as provided by the Director or EPA.

(F) All violations must be reported in successive quarterly reports until the violation(s) is documented as being corrected (i.e., the regulated entity is no longer in violation). After a violation is reported as corrected in the NNCR, that particular violation will not continue to appear in subsequent quarterly reports, although it will appear in the relevant annual report.

(G) If the permittee or discharger is in compliance with an enforcement order (e.g., permittee is completing the necessary upgrades to its existing wastewater treatment system in accordance with the schedule in the enforcement order), and has no new, additional violation(s), the compliance status must be reported as “resolved pending” in the NNCR. The permittee/discharger will continue to be listed on the NNCR until the violation(s) is documented as being corrected.

(2) Violation classifications. A violation must be classified as “Category I Noncompliance” if one or more of the criteria set forth below are met.

(i) Reporting violations. These include failure to submit a complete, required report (e.g., final compliance schedule progress report, discharge monitoring report, annual report) within 30 days after the date established in a permit, administrative or judicial order, or regulation. In addition, these also include any failure to comply with the reporting requirements at 40 CFR 122.41(l)(6).

(ii) Compliance construction violations. These include failure to start construction, complete construction, or achieve final compliance within 90 days after the date established in a permit, administrative or judicial order, or regulation.

(iii) Effluent limits. These include violations of interim or final effluent limits established in a permit, administrative or judicial enforcement order, or regulation that exceed the “Criteria for Noncompliance Reporting in the NPDES Program” in appendix A to § 123.45.

(iv) Compliance schedule violations. These include violations of any requirement or condition in permits, or administrative or judicial enforcement orders, excluding reporting violations, compliance construction milestones and effluent limits.

(v) Non-numeric effluent limit violations. These include violations of non-numeric effluent limits (e.g., violations of narrative permit requirements or requirements to implement best management practices) that caused or could cause water quality impacts. Examples of such impacts on water quality include, but are not limited to, unauthorized discharges that may have caused or contributed to exceedances in water quality standards, fish kills, oil sheens, beach closings, fishing bans, restrictions on designated uses, and unauthorized bypass or pass through or interference with the operations of a POTW (see 40 CFR 403.3).

(vi) Other violations. These include any violation or group of violations, which in the discretion of the Director or EPA, are considered to be of concern. These violations include repeat violations by a specific point source, geographic clusters of violations, corporations with violations at multiple facilities, or industrial sectors with identified patterns of violation that have a cumulative impact on water quality, but otherwise would not meet Category I criteria. EPA must determine whether to issue policy or guidance to provide more specificity on identifying these types of violations and how to report them.

(vii) All other types of noncompliance that do not meet the criteria for Category I Noncompliance must be classified as “Category II Noncompliance.”

(3) EPA must provide an easy-to-use interface to facilitate public access, use, and understanding of the NNCR, including the ability to sort violations by duration, severity, frequency, detection method (e.g., self-reported effluent, monitoring, inspection), flow and pollutant loadings, type of discharger, waterbody receiving the discharge, proximity to impaired waters, and category of violation (I or II). EPA must exclude from public release any confidential business information or enforcement-sensitive information associated with the NNCR.

(b) NPDES noncompliance reports - annual summary (annual). EPA must prepare annual public reports that provide a summary of compliance monitoring and enforcement activities within each state, tribe, and territory, as well as summary information on violations identified in the four quarterly NNCRs for that federal fiscal year. EPA must provide these annual reports by no later than March 1st of the following year.

(1) Facility types covered by reports. EPA must produce, at a minimum, Annual Summary Reports for the following universes: Individually-permitted NPDES-regulated entities; all other NPDES-regulated entities that are not individually permitted; Clean Water Act point sources that had unauthorized discharge(s) of pollutants to waters of the US; and a combined report that includes totals across all three reports above. Individually-permitted facilities are defined in this subsection as those permits that are unique to the permittee, that include permitted effluent limits, and require the submission of discharge monitoring reports.

(2) Content of reports. Reports must include applicable data for NPDES-regulated entities:

(i) The number of NPDES permittees;

(ii) The number inspected by on-site inspections;

(iii) The number reviewed in which permitted limits were compared to measured data to determine violations;

(iv) The number evaluated by other, off-site compliance monitoring activities;

(v) The number with any violations;

(vi) The number with Category I violations;

(vii) The number receiving paper or electronic written informal enforcement actions;

(viii) The total number receiving formal enforcement actions with a compliance schedule;

(ix) The total number receiving a penalty assessment;

(x) The total amount of penalties assessed; and

(xi) The number of permit modifications extending compliance deadlines more than one year.

(c) Schedule for producing NNCR quarterly information.

(1) The Director has until 45 days from the end of the calendar quarter to update or correct NPDES data submissions in EPA's national NPDES data system for events that occurred within that calendar quarter covered by the NNCR.

(2) EPA must publish the NNCR in electronic form to be easily accessible and available to the public within two months after the end date of the calendar quarter:

EPA Schedule for Quarterly NNCR

Calendar quarter EPA NNCR
publication
date for
calendar
quarter
January, February, March May 31.
April, May, June August 31.
July, August, September November 30.
October, November, and December Last Day in February.
Appendix A to § 123.45 - Criteria for Category I Noncompliance Reporting in the NPDES Program

This appendix describes the criteria for reporting Category I violations of NPDES permit effluent limits in the NPDES non-compliance report (NNCR) as specified under paragraph (a)(2)(C) of this section. Any violation of an NPDES permit is a violation of the Clean Water Act (CWA) for which the permittee is liable. As specified in paragraph (a)(2) of this section, there are two categories of noncompliance, and the table below indicates the thresholds for violations in Category I. An agency's decision as to what enforcement action, if any, should be taken in such cases, shall be based on an analysis of facts, legal requirements, policy, and guidance.

Violations of Permit Effluent Limits

The categorization of permit effluent limits depends upon the magnitude and/or frequency of the violation. Effluent violations shall be evaluated on a parameter-by-parameter and outfall-by-outfall basis. The criteria for reporting effluent violations are as follows:

a. Reporting Criteria for Category I Violations of Monthly Average Permit Limits - Magnitude and Frequency

Violations of monthly average effluent limits which exceed or equal the product of the Technical Review Criteria (TRC) times the effluent limit, and occur two months in a six- month period must be reported. TRCs are for two groups of pollutants.

Group I Pollutants - TRC=1.4
Group II Pollutants - TRC=1.2
b. Reporting Criteria for Chronic Violations of Monthly Average Limits

Chronic violations must be reported in the NNCR if the monthly average permit limits are exceeded any four months in a six-month period. These criteria apply to all Group I and Group II pollutants.

Group I Pollutants - TRC=1.4
Oxygen Demand
Biochemical Oxygen Demand
Chemical Oxygen Demand
Total Oxygen Demands
Total Organic Carbon
Other
Solids
Total Suspended Solids (Residues)
Total Dissolved Solids (Residues)
Other
Nutrients
Inorganic Phosphorus Compounds
Inorganic Nitrogen Compounds
Other
Detergents and Oils
MBAS
NTA
Oil and Grease
Other detergents or algicides
Minerals
Calcium
Chloride
Fluoride
Magnesium
Sodium
Potassium
Sulfur
Sulfate
Total Alkalinity
Total Hardness
Other Minerals
Metals
Aluminum
Cobalt
Iron
Vanadium
Group II Pollutants - TRC=1.2
Metals (all forms)

Other metals not specifically listed under Group I

Inorganic
Cyanide

Total Residual Chlorine

Organics

All organics are Group II except those specifically listed under Group I.

[80 FR 64100, Oct. 22, 2015]

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U.S. Code: Title 42 - THE PUBLIC HEALTH AND WELFARE

Title 40 published on 2015-07-01

The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 40 CFR Part 123 after this date.

  • 2015-10-22; vol. 80 # 204 - Thursday, October 22, 2015
    1. 80 FR 64064 - National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule
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      ENVIRONMENTAL PROTECTION AGENCY
      Final rule.
      The final rule is effective on December 21, 2015. The incorporation by reference of certain publications listed in this rule was approved by the Director of the Federal Register as of February 7, 2000. In accordance with 40 CFR part 23, this regulation shall be considered issued for purposes of judicial review at 1 p.m. Eastern time on November 5, 2015. The start dates for electronic reporting are provided in 40 CFR 127.16.
      40 CFR Parts 9, 122, 123, 124, 127, 403, 501, and 503