CRITERIA FOR NEUTRAL SELECTION OF A. BACKGROUND In response to the Supreme Court decision in Marshall v. Barlow's Inc., 436 U.S. 307 (1978), the Agency developed neutral inspection criteria to be used when targeting compliance inspections. The purpose of using the Neutral Inspection Plan is to eliminate any bias in choosing candidates for compliance inspections. Under the NPDES program [authorized by Section 402(a)(1) of the Clean Water Act], over 65,000 permits have been issued for the discharge of pollutants. Of these issued permits, about 7,500 have been classified by EPA or States with NPDES authority as major permittees. The designation of a permittee as "major" is based on a number of factors including quantity and potential environmental impact of the wastewater source (e.g., toxicity). EPA's program to monitor compliance with terms and conditions of issued NPDES permits is primarily designed to ensure the compliance of these major permittees. Compliance inspections performed under the NPDES program can be divided into two general categories: 1) those inspections based on administrative factors; and 2) those inspections based on specific evidence of an existing violation (e.g., civil probable cause). Inspections based on the second category are not neutral since they are based on prior knowledge of apparent or probable permit violations. Factors which constitute specific evidence consist of: 1) violations reported on recent DMRs; 2) citizen complaints; 3) response to emergency situations, such as threats to public health or safety; 4) follow-up to previous inspections which indicated violations; and 5) specific enforcement case support. The Agency has developed the Neutral Inspection Plan described in the remainder of this appendix to schedule inspections based strictly on administrative factors. B. UNIVERSE OF NPDES INSPECTION CANDIDATES EPA and State personnel as well as authorized contractors have, upon the presentation of credentials, the authority to enter and inspect all NPDES permitted facilities at any reasonable time, regardless of other factors such as "major" or "minor" designations. Because of limited resources, not all minor facilities are usually targeted for inspections each year. Consequently, the frequency with which compliance inspections are performed is based on: Other factors influencing compliance monitoring such as the ability to follow-up on inspection findings. C. BASIC SELECTION CRITERIA When targeting permittees for neutral compliance inspections, the time that has passed since the last inspection and the geographical grouping of the permittees are the only factors which may be considered. Other information, such as data from DMRs which indicate apparent violations, would not be used since this would constitute probable cause under the civil standard. However, the existence of such data would not preclude the facility from being considered for a neutral inspection if this Neutral Inspection Plan is followed during the selection process. The only permittees who would not be considered when targeting neutral compliance inspections are permittees who are in current litigation with EPA (State litigation would not preclude an EPA inspection.) D. NEUTRAL COMPLIANCE INSPECTIONS To target inspections based on a Neutral Inspection Plan, permitting authorities must first determine the length of time that has passed since the last EPA or State inspection. This can be done easily using the capabilities of the Permit Compliance System (PCS). A PCS report can be generated which will print out each permittee in order by the date of the last inspection. Attachment A contains a sample list which PCS can generate. A separate report can be generated for each State in the Region. In some cases, it may be appropriate to use subdivisions (e.g., county) of a State. The permittees which are highest on the list (greatest time since last inspection) will have the highest priority for neutral inspections. In order to minimize use of limited resources, inspection targeting should be based on both the priority list and geographical grouping. For example, any permittee on the list may be targeted for an inspection if it is in close physical proximity to a facility which is very high on the list. PCS can give the names and most recent inspection dates for all permittees which are in the same county as a permittee selected for an inspection. The priority list will identify only those facilities which are possible targets for compliance inspections during the current fiscal year. The exact timing of these inspections during the fiscal year will be at the discretion of the permitting authority, based on logistics and other specific needs. The list of permittees targeted for inspections may be amended at any time during the fiscal year. Similarly, before the start of a new fiscal year, the permitting authority should reassess all permittees regardless of whether all previously targeted inspections have been completed for the current fiscal year. F INSTRUCTIONS FOR TARGETING INSPECTIONS BASED ON THE POINT ASSESSMENT SYSTEM To use the Neutral Inspection Plan, permitting authorities will first determine the percentage of inspection resources that will be devoted to neutral administrative inspections. This will depend, to a large extent, on the ongoing enforcement case load and the percentage of major permittees which have probable violations of effluent limitations and compliance schedules. For example, the following resources may be allocated for neutral inspection activities: The remaining inspection resources would be reserved for inspections based on probable cause and specific enforcement case support. EPA Regional staff should next determine the approximate number of neutral inspections that can be completed using the resources allocated for each inspection type (CSI, CEI, and PAI). This number will be flexible depending on the type and/or the number of outfalls and size of the permitted facility. |