1. INTRODUCTION

1.1 OVERVIEW OF THE NPDES PROGRAM

The Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act (CWA) of 1977 and by the Water Quality Act of 1987, specifies the objectives of restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters. The Act provides broad authority to the U.S. Environmental Protection Agency (EPA) to:

Establish the National Pollutant Discharge Elimination System (NPDES) program and the
National Pretreatment Program

Define pollution control technologies and establish effluent limitations based thereon

Take enforcement actions, both civil and criminal, when violations of the Act occur.

The NPDES program, mandated by Section 402 of the Act, regulates the discharge of pollutants from point sources--such as municipal wastewater treatment plants, industries, animal feedlots, aquatic animal production facilities, and mining operations. Each point source is required to obtain a NPDES permit, containing effluent limits, monitoring and reporting requirements, and any other terms and conditions necessary to protect water quality, in order to discharge.

To determine whether NPDES permit conditions are being met, Section 308 of the Act authorizes inspections and monitoring of permittee facilities. Section 308 requires two types of monitoring: selfmonitoring to be conducted by the permittee and compliance monitoring to be performed by the permit-issuing agency. According to the Act, an inspection may be conducted wherever there is an existing NPDES permit or where a discharge exists or is likely to exist and no permit has been issued.

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Compliance with NPDES permit conditions is often monitored by States. Sections 308 and 402 of the Act allow the transfer of Federal program authority to conduct NPDES permit compliance monitoring to State agencies. Currently, over 75 percent of the States and territories are approved by EPA to implement State NPDES programs.

1.2 PURPOSE OF THE NPDES COMPLIANCE MONITORING PROGRAM

As mentioned above, each NPDES permit contains specific, legally enforceable, effluent limitations and monitoring requirements. The purpose of the NPDES compliance monitoring program (and the various inspections conducted under the program) is to evaluate the compliance of dischargers with permit limitations and conditions. This evaluation involves two aspects: 1) collection of samples of a permittee's effluent by a NPDES inspector as occurs during a Compliance Sampling Inspection (CSI), a Toxics Sampling Inspection (XSI), or a Compliance Biomonitoring Inspection (CBI); and 2) evaluation of a permittee's self-monitoring procedures as takes place in a Performance Audit Inspection (PAI). Under certain circumstances, the inspection may also evaluate the industrial monitoring and enforcement efforts conducted as part of a municipality's pretreatment program. This type of inspection is known as a Pretreatment Compliance Inspection (PCI).

To familiarize new NPDES inspectors with the legal aspects of compliance monitoring, this module discusses how the law should be taken into account during NPDES inspections as well as hearings or trials arising from such inspections. The module begins with a short review of sources of statutory authority and briefly describes the legal basis for NPDES inspections. It then emphasizes the legal considerations which facilitate the inspector's ability to perform his/her prescribed functions--namely, to gain access and to identify, gather, preserve, and present evidence.

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1.3 SOURCES OF LEGAL AUTHORITY

Legal principles are meant to apply to a variety of different circumstances. Laws enable society to be organized since they endeavor to make the outcome of business, political, and social interactions predictable. Legal authority in the U.S. system of government comes from five sources: (1) the U.S. Constitution; (2) legislative acts passed by Congress; (3) common law principles and legal precedents established by court decisions; (4) regulations adopted by Government agencies; and (5) court decisions interpreting the first four sources of legal authority and deciding their appropriate application under varying factual circumstances. The U.S. Constitution is the foundation for all powers exercised by the Federal Government. Only those powers that are specifically granted or implied to Federal authority in the Constitution can be exercised by the Federal Government. Specifically, the Constitution provides for Congress to pass laws; for the Executive Branch and its agencies to administer or execute the laws; and for the Federal courts to interpret or explain those laws, to settle or resolve disputes over the laws, and ultimately, to authorize and determine specific sanctions or punishment for violation of Federal laws.

1.4 NPDES AUTHORITY

Congress exercised its legislative power by adopting the Federal Water Pollution Control Act of 1972 [33 United States Code (U.S.C.) 1251 et seq.]. Because the Act itself does not define each detail to be implemented, Congress delegated to EPA the authority to develop regulations to carry out its intent of controlling water pollution. Whenever the Agency adopts a regulation, that regulation has the same force and effect as if the law were passed by Congress, assuming the regulation is within the Agency's delegated authority and is constitutional. EPA's current regulations for the NPDES, sludge, and pretreatment programs are found in the Code of Federal Regulations (CFR) at 40 CFR Parts 122-125, 129, 133, and 136, 258, 503, and Chapter I, Subchapter N (i.e., the 400 series).

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2. AUTHORITY TO INSPECT

To determine whether permit conditions are met by the NPDES permittee, Section 308(a) of the Act allows inspection and monitoring. In effect, the section provides for two types of monitoring. First, the permittee must monitor itself: "the Administrator shall require the owner or operator of any point source to... maintain records, ... make reports, use monitoring methods, ... sample effluents, and provide other information" in a manner prescribed by the Administrator. Second, EPA may independently verify the permittee's monitoring by conducting its own inspection and monitoring. "The Administrator ... shall have the right of entry to ... any premises in which an effluent source is located or in which any records required to be maintained ... are located, and may are located, and may ... have access to and copy any records, inspect any monitoring equipment or method, ... and sample any effluents which the owner or operator of such source is required to sample."

Although the Act grants the EPA Administrator with the power to monitor permittees, it is obviously impractical for the Administrator himself to visit every permittee's premises. So Congress extended the authority to enter, inspect, and sample to "the Administrator or his authorized representative, upon presentation of his credentials." According to 40 CFR 122.41(i), Conditions Applicable to All Permits, the authority to inspect permitted facilities is implicit. The inspector's authority is not limited to entering and examining the industry's treatment plant (effluent sources) alone. The inspector may inspect other areas of the permitted facility as well. General conditions affecting monitoring requirements for permits are found in 40 CFR 122.41(j).

An inspector is issued credentials designating him/her as an authorized representative of the Administrator. An inspector's credentials are his/her proof of authority to enter and inspect a facility and must, therefore, always be presented when entering a facility. The primary purpose of using credentials is to protect permittees from unauthorized inspections. However, the use of agency enforcement

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