DRAFT
February 7, 1973
EXPLANATORY STATEMENT
******
IMPLEMENTATION OF THE
"NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM"
PURSUANT TO SECTION 402,
FEDERAL WATER POLLUTION CONTROL
ACT AMENDMENTS OF 1972
* * *
U.S. ENVIRONMENTAL
PROTECTION AGENCY
WASHINGTON, D.C.
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On October 18, 1972, the Federal Water Pollution Control Act
Amendments of 1972 were enacted. One major feature of this sweeping
revision of the Federal water pollution laws was the establishment of
a new national permit system. Section 402 requires that industrial,
municipal, and other point source dischargers obtain permits for the
discharge of any pollutants into the navigable waters of the United
States, and it provides for a cloiely knit Federal-State partnership
to administer the program.
This Explanatory Statement provides a succinct, but comprehensive,
summary of the main features of the national permit system. It includes
the principal aspects of the statute itself, important regulations and
guidelines which have been promulgated or are being developed, and major
policy directives issued by the Environmental Protection Agency. It
also describes the background of the program, including relationships
to the Refuse Act Permit Program announced December 23, 1970, and
provides other factual information concerning the scope of the program
and the manner of its implementation and operation.
The purpose of this statement is to provide information to the public
concerning this program. Section 101 of the new law requires that EPA
assure broad public participation in connection with all activities under
the law. Although formal regulations to implement Section 101 have not
been issued, this statement will be distributed widely among citizen
organizations and other public groups as part of EPA's performance of
its responsibilities under Section 101, in addition to further implementing
EPA's general policy emphasis on freedom of information and open dis-
closure of its policies and program activities. The attached statement
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is in draft form. Criticisms, comments and suggestions are requested
during the period between now and March 30. 1973. Following that date,
a revised final statement will be prepared and made available to the
public.
Particular attention is called to the section on pages 11-12 con-
cerning the development of interim effluent guidance in twenty major
industrial categories. This guidance will be used as an important element
of the technical analysis which must be performed prior to the specifica-
tion of effluent limitations in individual permits to be issued by EPA
or the States prior to the formal publication of effluent guidelines
under the new law. As such, it is subject to comment, review, and
revision as necessary to carry out the purposes of the 1972 Amendments.
Copies of this guidance have been available for public inspection for
several months and have been circulated among certain civic and environ-
mentalist groups. As indicated in the statement, the guidance was
reviewed with technical representatives of industrial corporations and
trade associations during the formulation of the guidance. Copies of
the guidance are available upon request. Requests for them should be
mailed to the Office of Permit Programs, Room 706, Crystal Mall Building #2,
Environmental Protection Agency, Washington, D.C. 20460.
./,
R. Quarles, Jr.
Assistant Administrator for
Enforcement and General Counsel
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TABLE OF CONTENTS
Page
I. Introduction • 1
A. Prior Water Pollution Control Legislation 1
B. The Permit Program Under the Refuse Act 4
II. The Amendments of 1972: 6
A. Objective of the Act 6
B. Major Changes 7
1. Enforcement Mechanisms Replaced 7
2. Jurisdiction « 7
3. Key Definitions 8
4. National Pollutant Discharge Elimination
System 8
5. Specific Effluent Limitations 10
C8 A New Regulatory Scheme Established 10
III. Requirements of the New Act 11
A. The Effluent Limitations o ....... 11
1. General Effluent Limitations ................ 12
a. Best Practicable Control Technology and
Best Available Technology 13
b. Effluent Limitations for Publicly Owned
Treatment Works 15
c, Pretreatment Effluent Standards 15
d. Toxic Pollutants Effluent Standards 16
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Page
2. New Source Performance Standards 17
3. Water Quality Standards 18
B. Other Provisions of the 1972 Amendments 19
1. Special Permit Programs 19
2. Discharges Regulated Other Than Under Permit
Authority 19
3. Categorically Prohibited Discharges and
Unregulated Discharges 21
IV. The National Permit System 21
A0 Interim State Programs a 21
1. Broad Test for Authorization 22
2. Specific Criteria for Authorization 22
Bo Final Approval of State Permit Programs 24
1. Authority 24
2. Minimum Procedural Elements 24
Ce Federally Operated Permit Program 29
V, Scope of Federal Review Authority Over State
Programs 31
A. Review of Individual Permits 31
B. Review of Total State Program 32
VI. Enforcement 33
A. Federal Enforcement of Conditions of Individual
State Permits 33
B. Federal Enforcement of All State Permits .......... 33
C. Types of Federal Enforcement Actions (Federal and
State Permit Conditions) 34
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VII. Public Participation and Citizen Suits 35
VIIIu Other Questions and Answers 37
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I. Introduction
On October 18, 1972, Congress passed the Federal Water Pollution
Control Act Amendments of 1972. It has been acclaimed as "one of
the most significant, most comprehensive, most thoroughly debated
pieces of environmental legislation ever to be considered by the
Congress." It provides new enforcement tools for combating
pollution and increased Federal grants for construction of waste
treatment facilities, and authorizes additional funds for research
into the problems and solutions to pollution. Legislated
protection of this country's waters is not a new phenonmenon. Nor
is the new Act's mechanism for controlling pollution, a system of
permits for discharges into the waters, a novel regulatory scheme.
A. Prior Water Pollution Control Legislation
The first comprehensive Federal Water Pollution Control Act
was enacted in 1948 on a temporary basis and extended in 1952 0 It
became permanent legislation in 1956 and was amended in 1961 to
establish a more effective program to abate pollution of navigable
as well as interstate waters which endangered the health or welfare
of persons. The method of enforcement was a Federal-State enforce-
ment conference, with participation by local officials and other
interested persons, to discuss pollution problems of a particular
location. Public hearing and court action followed the conference
if necessary.
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In 1965 the FWPCA was again amended, this time by the
Water Quality Act. Under it each of the States, the District of
Columbia, Puerto Rico, the Virgin Islands and Guam were given the
first opportunity to establish water quality standards for inter-
state waters including coastal waters. If a State did not set
such standards, the Federal government did.
Water quality standards were set by classifying bodies of
water for different levels of water use such as drinking, industrial
water supply, or recreational use and then by specifying the
characteristics or criteria which the water had to have to support
these uses. A second part of the standards was the plans estab-
lished to implement and enforce the criteria. When approved by
the Federal authority, such standards (criteria and plans) became
the Federal-State standards applicable to those waters.
Any discharge of pollution which reduced the quality of
the receiving water below the criteria or in violation of an
implementation plan was subject to enforcement action. States
have always had the primary responsibility for enforcing water
quality standards, but, because standards were federally approved
and enforceable, the Federal government could enforce them by
bringing an abatement suit, after at least 180 days' notice of
violation to the dischargers and other interested parties.
Even earlier than the 1948 FWPCA, Congress passed the River
and Harbor Act for the protection of the Nation's waterways. Enacted
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in the late 1800's, this Act provided for the maintenance, protection,
and preservation of the navigable waters of the United States,
through regulation in some instances by means of permits for con-
struction, dredging, and discharges in those waters. Section 13 of
the River and Harbor Act of 1899, which by itself is known as the
Refuse Act, literally prohibited discharge or deposit of refuse
matter into navigable waters and their tributaries unless authorized
by a permit from the Secretary of the Army. The Refuse Act provided
both permit authority, and enforcement measures, civil and criminal
penalties, against the discharger of refuse where no permit had
been obtained. Navigable waters, to which the River and Harbor Act
applies, are those waters which are presently, or have been in the
past, or may be in the future susceptible for use for purposes of
interstate or foreign commerce.
The Refuse Act, as a section of an Act generally intended to
prevent impediments to navigation, was initially used for navi-
gational purposes. In recent times, with rising concern about
increased water pollution, the potential use of the Refuse Act for
water pollution control was recognized. With a focus on the dis-
charge itself, it was seen as an enforcement tool complementary
to the enforcement provisions of the FWPCA, with its focus on the
quality of the receiving water. The Refuse Act could be used to
enforce water quality requirements.
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The Department of the Interior, then charged with admin-
istering the water pollution control legislation, announced that
the Refuse Act would be utilized more fully, and the Department
of Justice issued guidelines for Refuse Act prosecutions against
dischargers without permits. The Department of the Army announced
its desire to initiate a Refuse Act Permit Program. Finally, by
Executive Order on December 23, 1970, the President directed the
establishment of a Federal permit program utilizing the Refuse Act,
and requiring close coordination between the Army Corps of Engineers
and the Environmental Protection Agency. Effective July 1, 1971,
the discharger of any industrial wastes into navigable waters or
their tributaries was required to have applied for a permit from
the Corps.
The Federal Government thus combined its resources and
legal authorities to maximize control over water pollution. In
addition to enforcement conferences, 180-day notice proceedings,
and civil and criminal Refuse Act prosecutions, a Refuse Act permit
program was fully functioning for approximately one year.
B. The Permit Program under the Refuse Act
Because the Refuse Act authorized the Secretary of the
Army to issue permits for discharges, the Army Corps of Engineers
had the primary responsibility of administering the Refuse Act
permit program. The Corps received applications from dischargers
for permits, determined the effect of the discharge on anchorage
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and navigation and formally issued any permit. EPA reviewed these
applications, and advised the Corps on the effect of the discharge
on water quality. Applicants for a Refuse Act permit also had to
receive a certification from the State in which the discharge was
to be made that the discharge would not violate water quality
standards established under the Federal Water Pollution Control Act.
Therefore, before issuance or denial of a permit the Corps received
advice from EPA and the State as to whether and on what conditions
the permit should issue.
By December 21, 1971, only 20 permits had been issued under
the program. On that date, the new program came to an abrupt halt.
A United States District Court judge enjoined the Corps from
issuing Refuse Act permits. The injunction in the case, Kalur v.
Resor, was based on two grounds. The Corps of Engineers acted
beyond its authority if it issued permits for discharges into
tributaries of navigable waters. Literally, the Refiise Act only
authorized the issuance of permits for deposits into navigable waters,
although the Act prohibits discharges and deposits into navigable
water and non-navigable tributaries. Secondly, the District Court
judge determined that the Corps in issuing permits under the
Refuse Act was not exempt from the requirements of the National
Environmental Policy Act of 1969. That Act required all Federal
agencies undertaking any major Federal action significantly
affecting the quality of the human environment to prepare an
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environmental impact statement for that action. The Court held
that until the Corps modified its operating regulation* to allow
the preparation of impact statements covering water quality aspects
of Refuse Act permits, the issuance of permits was to be discontinued.
The Government, at EPA's insistence, appealed the court's decision.
The Kalur decision did not mean the end of EPA's pollution
control program. Pending the resolution of issues raised by the
Kalur decision on appeal, EPA continued to process the permit
applications at hand in preparation for the possible reactivation
of the Refuse Act Permit Program or passage of new legislation
authorizing the issuance of permits.
At the same time EPA had to decide how to keep alive the
momentum created by the Refuse Act Program and other pollution
control statutes. The Agency initiated the Abatement Commit-
ment Letter program by which is sought informally, the voluntary
commitment of industrial dischargers to commence abatement plans*
This program was utilized along with the other enforcement
measures so that as of September 30, 1972, 59 enforcement con-
ferences had been undertaken, 166 180-day notices had been served,
some 100 abatement letters were signed and 405 civil and criminal
actions had been initiated from December 2, 1970 to September 30,
1972.
II. The FWPCA Amendments of 1972
A. Objectives of the Act
The Refuse Act Permit Program was still enjoined in October
of 1972 when Congress enacted the FWPCA Amendments of 1972 providing
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a new comprehensive program of pollution control. As stated in
the 1972 Act, it is the national goal that the discharge of
pollutants into navigable waters be eliminated by 1985, and that,
as an interim goal, there be attained by July 1, 1983, water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in and on the
water. To reach these goals the Act requires that a discharge of
waste or of waste-containing water be of a specified, improved
quality before its release from a point source to the receiving
water, or in some cases that the discharge be prohibited. To
assure that the improved quality is attained, the Act provides
a new authority to the Federal and State governments with which
to continue and fully develop a national permit system.
B. Major Changes
1. Enforcement Mechanisms Replaced
The new Act terminates the use of enforcement conferences
and 180-day notices/ and ends the Refuse Act permit program. It
gives immunity from prosecution under certain key sections of the
Act, or under the Refuse Act until December 31, 1974, to any
applicant for a discharge permit, if the application has not been
processed and if the discharge is one susceptible to a permit.
2. Jurisdiction
The new Act continues the Refuse Act's jurisdiction
over all navigable waters, but, as defined by the Act, navigable
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waters mean "the waters of the United States." Included are all
interstate waters, all navigable waters, tributaries of navigable
waters and any intrastate non-navigable rivers, streams, or lakes
utilized by industries in interstate commerce, or utilized by
interstate travelers for recreational or other purposes. The Act
also applies to the territorial seas (the belt of seas extending
three miles from the coastline), to the contiguous zone (the high
seas contiguous to the territorial sea but not to extend beyond
12 miles from the coastline), and to the ocean beyond the con-
tiguous zone.
3. Key Definitions
The Act specifically defines pollutants and point
source. Pollutants are dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radio-active materials, heat, wrecked
or discarded equipment, rock, sand, cellar dirt and industrial,
municipal and agricultural waste discharge into water. Point
sources are "discernible, confined and discrete conveyances" which
means, for example, any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container rolling stock, vessel, or cattle
feedlot.
4. National Pollutant Discharge Elimination System
The new permit system is called the National Pollutant
Discharge Elimination System (NPDES). It is a National system
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because it is effective nation-wide and involves Federal and
State participation, with the objective being State-administered
permit programs.
Full implementation of the program by States may take
time. Before then, the Act provides for either a fixed life
interim State program or a Federal permit program. After a State
has a NPDES permit program, Federal review and monitoring of the
program will continue to insure that the purposes of the Act are
carried out. Thus, the program is based on an effective Federal-
State partnership.
The scope of activities regulated under the permit
authority is wide. Some 40,000 of the nation's 300,000 industrial
water users, will be subject to permit regulation. Municipal
waste-treatment sources are also point sources at which this
pollution control program is aimed. Between 10,000 and 13,000
communities will be affected. Water pollution from agricultural
sources is, under certain circumstances, subject to the new permit
authority. Some examples are the animal wastes from concentrated,
confined feedlots which reaches surface water, and discharges from
irrigation when drains are used. Acid mine drainage from both
surface and subsurface coal mines, where such drainage is from
discrete conveyances, will be regulated. Included in this group
of point sources are any pipes or conduits which reach and empty
into the contiguous zone or ocean, and offshore oil rigs.
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5. Specific Effluent Limitations
A major revision from prior legislation is the
requirement that specific limitations be applied to discharges.
Limits are placed on the amount of pollutants in discharged
wastewater or reduction in the amount of wastewater or solid
waste discharges. This is the Act's method for attaining the
1983 and 1985 goals.
C, A new Regulatory Scheme Established
Any permit issued under the National Permit System will
impose on a discharger of pollutants from a point source, certain
requirements all aimed at attaining the goals of the Act: Every
discharger must make application for a permit and in so doing
provide the permitting authority with data on the discharge; the
permit which is proposed to be issued must contain conditions
which will insure that the discharge will meet effluent limitations
including schedules of compliance, water quality standards, new
source performance standards from new plants and factories, toxic
standards, and pretreatment standards for those facilities dis-
charging into a municipal waste treatment facility; each permit
must require the discharger to monitor the discharge, to keep full
records and report periodically on what is occurring in regard to
the discharge; throughout the process of issuance by the permitting
authority there is to be full public participation; notice, adequate
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to inform all interested parties, is to be given of the processing
of the permit, and, if sought, hearings must be held to explore
all issues raised concerning the proposed permit. Each of these
elements of the new system will be fully discussed hereafter.
III. Requirements of the New Act
A. The Effluent Limitations
Prior pollution control statutes did not specifically
provide for effluent limitations, but the Federal Government's
pollution control program did. The need for standard discharge
limits within industrial categories became apparent in the Fall
of 1971 during the study of twenty basin areas in which effluent
limits had been developed to achieve water quality standards under
implementation plans. The Agency thereafter contracted for
research and studies to determine what secondary treatment or its
equivalent was for 22 basic industries. EPA's enforcement
personnel used these studies in part to develop a draft set of
effluent guidance for the 20 industrial categories which con-
tributed a high percentage of industrial pollution. This proposed
effluent guidance received Agency-wide review. Thereafter, the
Agency asked a select group of technical personnel from industry
to comment on them. The draft guidance was again sent to reviewers
throughout the Agency; Planning and Management was asked to
evaluate the economic impact of these guidance materials. EPA
Headquarters then sent the effluent guidance to the ten EPA
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Regional offices to be used in the development of conditions for
Refuse Act permits. Social and economic considerations were to
be made in addition to applying the guidance. The numbers
represented the Agency's best determination of "best practicable
control technology," a term present in the new Act, and one which
will be explored later. This "guidance" had two separate cate-
gories of numbers. An industry had to apply to its discharges by
January 1976 treatment which made use of the "best practicable
control technology." If a discharger had recently begun a sub-
stantial treatment program which would be complete by July 1, 1974,
a second level of less stringent limitations was applicable.
The new Act also has categories of effluent limitations
and achievement dates. Congress provided two interim dates of
July 1, 1977, and July 1, 1983, by which different levels of treat-
ment are to be reached. It is a timetable based on advances in
technology.
1. General Effluent Limitations
For all dischargers other than publicly owned
treatment works, not later than July 1, 1977, effluent limitations
are to be achieved which will require the application of the "best
practicable control technology currently available." At the same
time, all publicly owned facilities must utilize "secondary
treatment" and, if an industrial discharger sends its wastes
through a publicly owned treatment works, certain "pretreatment
standards" must be met. An additional requirement is that by the
July 1977 date, effluent limitations may be imposed so that any
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State law will be met. Not later than July 1, 1983, effluent
requirements must be met which represent the "best available
technology economically achievable/1 and, for publicly owned
facilities, which represent the application of the "best practi-
cable waste treatment technology." Any other applicable pretreat-
ment standards must also be attained by that date. Special
standards for toxic substances must be observed in effluent dis-
charges for both 1977 and 1983 periods.
1977 and 1983 are target dates—they are the outside
limits for compliance. Also the Act envisions that in meeting
effluent limitations there will be stages of compliance including
attainment of levels of substantial improvement even before these
dates. There will be imposed on discharges a schedule of remedial
measures. This schedule will appear as conditions set in a NPDES
permit.
a. Best Practicable Control Technology and Best
Available Technology
The Act charges the Administrator with the task
of publishing regulations providing "Guidelines" for effluent
limitations for point sources, within one year of enactment, after
consultation with appropriate Federal and State agencies and other
interested persons. These effluent limitations are the ones which
shall require the application of the best practicable control
technology currently available for the 1977 target date and best
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available technology economically achievable for the 1983 target
date. The Administrator will identify three things in the
regulations.
First, he will interpret and give meaning to the
terms "best practicable" and "best available" when applied to
various categories of industries. In defining "best practicable"
and "best available" for a particular category, he is to take into
account such factors as the age of the equipment and facilities
involved, the process employed, the engineering aspects of the
application of control techniques, process changes, and non-water
quality environmental impact (including energy requirements)0 In
assessing "best practicable control," the Administrator is to make
a balancing test between total cost and effluent reduction benefits.
In some instances this test may eliminate the application of tech-
nology which is high in cost in comparison to the minimal reduction
in pollution which might be achieved. Cost is a factor in deter-
mining "best available," but the test is one of reasonableness.
Cost effectiveness for either standard is to be confined to con-
sideration of classes or categories of point sources and will not
be applied to an individual point source within a category or
class.
Second, having interpreted "best practicable" and
"best available" the Administrator can specify the effluent limi-
tations to be implemented by July 1, 1977. The Administrator is
authorized to promulgate guidelines for "effluent limitations", but
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in essence, the "guidelines11 are "effluent limitations" rather
than general procedures for determining limitations. For, he
is to identify the degree of effluent reduction attainable through
the application of the best practicable control and best available
technology in terms of amounts of constituents and chemical,
physical, and biological characteristics of pollutants.
Third, the regulations are to identify control
measures and practices to eliminate the discharge of pollutants.
b. Effluent Limitations for Publicly Owned Treatment
Works.
Not later than July 1, 1977, publicly owned
treatment facilities must be meeting effluent limitations derived
from "information" which the Administrator is required to publish
by sixty days after enactment. The "information" is to describe
the degree of effluent reduction attainable through application
of secondary treatment. The information shall be in terms of
amounts of constituents and chemical, physical, biological char-
acteristics of pollutants. Nine months after enactment, the
Administrator is required to publish information on alternative
waste treatment management techniques and systems available, as
the basis for the 1983 effluent limitations. Given their appli-
cation to effluent limitations, these "information" issuances are
the limitations.
c. Pretreatment Effluent Standards
In view of the Act's requirement that discharges
from private point sources into publicly owned treatment works are
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to comply with applicable pretreatment effluent standards by 1977
and 1983, such standards have to be set. Within 180 days of
enactment, the Administrator is to publish proposed regulations
setting these standards and promulgate them 90 days later. The
pollutants covered are those which are determined not to be sus-
ceptible to treatment by such treatment works or which would
interfere with the operation of such works. The regulations must
specify a time for compliance not to exceed three years from their
promulgation. The Administrator is to designate the category or
categories of sources to which such standards shall apply. Pre-
treatment effluent standards may be more stringent for 1983 since
the standards are to be updated from time to time.
d. Toxic Pollutant Effluent Standards
The 1972 Act requires the Administrator to
establish effluent standards or prohibitions controlling toxic
pollutants. "Toxic pollutant" is defined as those pollutants, or
combinations of pollutants which after discharge and upon exposure
to any organism, either directly or indirectly, will "on the basis
of information available to the Administrator" cause death, disease,
or other abnormalities in the organism or its offspring. The
drafters of the Act had in mind certain substances such as mercury,
beryllium, arsenic and cadmium.
The Administrator is to issue a list of toxic
pollutants within 90 days of enactment. Within 180 days after
publication of the list, the Administrator is required to establish
standards for those toxic pollutants listed. In determining effluent
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standards for those toxic pollutants which he designates as toxic,
the Administrator is to consider the pollutants' toxicity, per-
sistence, and degradability, as well as the presence of organisms
in any affected waters. The Administrator is to designate
categories of sources to which the standards shall apply. New
standards may be promulgated from time to time, so that whatever
standard is in effect prior to July 1977 and July 1983 must be met.
Because of the dangerous nature of toxic materials,
state and federal authorities will have to place controls on the
discharge of toxics even before the toxic standards are issued.
Either through permit conditions or other enforcement measures,
toxic discharges will have to be regulated to the same extent the
Act provides for in the development of toxic standards.
2. New Source Performance Standards
New factories, industries, etc., constructed after
the date of the new Act will be subject to national standards of
performance. Within 90 days after enactment, EPA is to publish a
list of categories of sources which must include 27 major types of
industry. Within one year after that date, the Administrator shall
propose and publish regulations establishing Federal standards of
performance of new sources within such categories. These standards
are to assure that new stationary sources of water pollution are
designed, built, equipped and operated to minimize the discharge
of pollutants. The standards are to reflect the greatest degree of
effluent reduction which the Administrator determines to be
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achievable through application of the "best available demonstrated
control technology", process, operating method, or other alter-
natives. "Best available demonstrated technology" has been
described as those plant processes and control technologies which,
at the pilot plant or semiworks level, have demonstated that both
technologically and economically they justify the making of
investments in new production facilities.
At the same time EPA promulgates new performance
standards, it is to provide pretreatment standards for newly con-
structed point sources discharging into public treatment facilities<
3. Water Quality Standards
The new Act does not ignore the concept of water
quality standards in 1977 and 1983 achievements. Water quality
standards which were adopted and enforced under the old FWPCA for
interstate waters are continued in effect, and can be updated, and
new ones are to be established for intrastate water bodies where
not previously adopted by the States. If water quality standards
cannot be protected by the application of best practicable control
technology for industries and secondary treatment for municipal
wastes before 1977, then technology must be employed which will
protect water quality standards. Before 1983 if best available
treatment and its equivalent for municipal facilities will not
contribute to attainment of water quality which will protect public
water supplies, agricultural and industrial uses, protection of a
population of fish and wildlife, and allow recreational activities,
more stringent effluent limitations are to be imposed.
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An overall view of the conditions of the waters and
of the discharges therein will be provided in a report which is
to be prepared for Congress on or before January 1, 1974. This
water quality report will include an inventory of all point source
discharges and will identify which navigable waters are of the
quality, or can reach the quality by 1977 or 1983, that provides
for protection of fish and shellfish populations and allows
recreational activity.
B. Other provisions of the 1972 Amendments
1. Special Permit Programs
Several special (non-NPDES) permit programs are
established by the new Act. The Administrator of EPA may permit
discharges of pollutants associated with approved aquaculture
projects. The Secretary of the Army in conjunction with the
Administrator of EPA may issue permits for the discharge of dredged
or fill material into navigable waters at specified disposal sites.
In addition, the discharge of sewage sludge resulting from the
operation of a treatment works is prohibited except in compliance
with a permit issued by the Administrator of EPA.
2. Discharges Regulated Other than Under Permit Authority
Other discharges of pollutants from point sources
are not controlled by the Act's permit systems, but are controlled
by some mechanism under the Act. Sewage which is discharged from
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vessels, clearly a point source, is the subject of a special
provision dealing with the design, manufacture, installation and
use of marine sanitation devices.
Additions of other pollutants to the contiguous zone
or ocean from vessels and other floating craft are excluded from
the permit authority, but are not totally free of regulation. The
Act creates liabilities for oil and hazardous spills from vessels
and from onshore and offshore facilities into navigable waters
and waters of the contiguous zone. In the ocean, vessels are
subject to another statute, the Marine Protection, Research, and
Sanctuaries Act of 1972 which also has a permit program.
Permits for discharges from point sources must reflect
consideration of toxic discharges, but, since toxic discharges may
be prohibited altogether by the Administrator, and any "source"
is subject to toxic limitations, regulation goes beyond compliance
with a permit. Enforcement actions such as court suits, fines and
penalties are envisioned when toxics are being, have been, or will
be discharged from both point and non-point sources.
Discharges associated with "secondary recovery" in
the production of oil and gas are excluded from the permit program.
This exclusion includes water, gas, or other material which is
injected into a well to facilitate the production of oil or gas,
or water derived in association with oil and gas production and
disposed of in a well. Yet this activity is not beyond regulatory
control. The wells so used must have been approved by the State
in which the well is located and the State must have determined
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that the injection or disposal will not result in the degradation
of ground or surface water resources.
3. Categorically Prohibited Discharges and Unregulated
Discharges
Congress has provided that it is unlawful to discharge
any radiological, chemical, or biological warfare agent or high-
level radioactive waste into the navigable waters. No permit or
exception can be given to such discharges. On the other hand,
discharges from properly functioning marine engines are not
expected to be treated as unlawful or to be regulated. No section
of the Act specifies this exemption, but Congress in discussing
the bill said they intended this exception. Finally, pollution
from non-point sources is not within the scope of the Act, except
where a special provision, such as for disposal of dredge and fill
materials, feedlots, or sewage sludge, so provides.
TV. The National Permit System
The Environmental Protection Agency will have three important
jobs in establishing the NPDES: (1) EPA will authorize or reject
requests for interim State permit programs; (2) the Agency will
approve or disapprove final State permit programs; and (3) the
Agency will administer any permit program not State-operated.
A. Interim State Programs
The new Act provides an opportunity for States to request
interim authority to operate their own permit programs right away.
The interim authority is short-termed, however, in that the
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authority will expire approximately five months after enactment
of the law, at which time the final State program should be in oper-
action. On December 19, 1972, the Agency announced that ten States
were going to operate interim permit programs.
1. Broad Test for Authorization
The Administrator of EPA is to grant interim authori-
zation to a State, which "he determines has the capability of
administering a permit program which will carry out the objective
of this Act," to issue permits for discharges into navigable waters
within the jurisdiction of such State. The language quoted above
is the only criterion set forth in the Act relating specifically
to interim authorization—whether the State's program meets the
objective of the Act. The objective of the Act, as it relates to
permit requirements, is the prohibition of discharges which are
not in conformance with effluent limitations, water quality standards,
schedules of compliance, etc., provided for in the Act. The State
must have the capability of imposing these requirements through
its existing permit program.
2. Specific Criteria for Authorization
The Administrator has on the basis of the broad test
developed a number of criteria which will be applied in his con-
sideration of whether to grant interim authorization. A State's
request for authorization is to contain the following assurances to
the Administrator:
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a. That the State has the requisite authority to
issue permits containing effluent limitations, abatement schedules,
and monitoring requirements;
b. That effluent limitations can be established
requiring the application of "best practicable control technology
currently available" for industrial sources and secondary treat-
ment for municipal sources, or compliance with applicable water
quality standards, whichever is more stringent, by July 1977;
c. That the State understands that all outstanding
State permits must be reexamined and reissued to conform to the
Act;
d. That the State will, in fact, undertake to impose
these requirements in permits;
e. That the State, in conformance with discussions
with EPA, will follow a system of priorities mutually acceptable
to the State and EPA, and in the processing of permits will give
due consideration to all available information on control
technology, currently available, including interim effluent limi-
tations guidance prepared by EPA;
f. That the State will establish procedural steps
for public notice and hearing on any proposed permits; and
g. That the State will take all necessary measures
to move toward the objective of obtaining final approval of its
permit program.
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B. Final Approval of State Permit Programs
The grant of interim authorization will in most cases be
a step toward final approval where the State desires to administer
the permanent NPDES. The Administrator is to approve a State's
program (or interstate agency1s program where appropriate) unless
he determines that the State does not possess adequate legal
authority in State law to perform certain acts. Th« State program
must also provide for certain procedural steps.
1. Authority
The State must have authority to (a) issue permits
for terms not exceeding five years; (b) adequately notify members
of the public, other States, and the Secretary of th* Any of
pending permit applications; (c) abate violations of permits, with
authority to impose civil and criminal penalties; (d) insure that
the State permitting agency receive adequate notice of new intro-
ductions or substantial changes in the volume or character of
pollutants introduced into publicly-owned treatment works; and
(e) to insure that any industrial user of publicly-owned treatment
works complies with pretreatment effluent standards and other
requirements. The State also must have an approved continuing
planning process before approval of its permit program can be
granted.
2. Minimum Procedural Elements
In addition to legal authority, a State permit program
cannot be approved unless it conforms to certain guidelines
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prescribing other substantive requirements and minimum procedural
steps. The Act directs that these guidelines must include, but
are not limited to, monitoring and reporting requirements (including
procedures to make information available to the public), and
requirements for funding, personnel qualifications, and manpower.
These Guidelines which EPA is required to promulgate,
were proposed in the FederalRegister on November 11, 1972, and
thereafter commented upon by all interested parties including the
public. They were issued in final form on December 22, 1972.
Their development began many months ago when EPA in anticipation
of the new Act sought to develop the required guidelines cooper-
atively with a group of State representatives. Throughout a series
of drafting sessions, the work group focused its efforts on three
main areas of concern: State authority, State resources, and
procedures. The preparation of these guidelines was dictated by
the need to fashion a strong and uniform National permit program
with State procedures consistent with and as strong as the
national program, without being unduly costly, time-consuming, or
burdensome to States.
The Work Group was not concerned with past performances
of particular State programs. The new Act contemplates an opportunity
for even the historically weakest State program to wipe the slate
clean. Nor were the Guidelines designed to satisfy a certain
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number of existing State programs or to relate to whatever existing
state legal authority there is.
"Hie proposed Guidelines which incorporate many of the
views of the Work Group contain the following requirements:
a. A State must have a statute or regulation which
prohibits the discharge of pollutants.
b. There must be basic procedures for the filing of
permit applications and the exchange of information between
Federal and State agencies all aimed at the goal of obtaining
adequate data about the discharge.
c. The State or interstate agency is to formulate
tentative views on conditions for the permit being sought and a
draft permit and then provide for notice and public participation
in the decision-making on that permit. Public notice is to be
given taf an application for a permit by posting a notice in public
places and by mailing it to interested groups. Other appropriate
Government agencies are to be notified. The Agency is to receive
the written comments of any interested party and the written
views and recommendations of other Government agencies.
d. An opportunity must be given for the applicant,
any affected State, or interstate agency or EPA, or other govern-
ment agency, or any interested persons to request a public hearing.
After notice has been given, the hearing is to take place in the
geographical area of the proposed discharge, or other suitable place,
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e. The procedures of the State or interstate program
must insure that each permit issued will be conditioned with
effluent limitations, other standards and limitations, or prior to
promulgation by EPA of standards and limitations, any effluent
conditions designed to achieve the requirements of the Act.
Permits must provide that these requirements will
be achieved by means of scheduled or phased compliance. The require-
ments are to be met not later than July 1, 1977, the target date.
f. A State or interstate agency cannot issue a permit
for discharges of warfare agents or high-level radioactive waste,
or a discharge which the Secretary of the Army has found will
substantially impair anchorage and navigation, or a discharge which
the EPA Administrator has objected to in writing, or a discharge
in conflict with a plan approved under an areawide waste management
provision.
g. Procedures of the State program must allow for
requirements in permits dealing with monitoring, recording and
reporting. Permittees may have to install, maintain and use
monitoring equipment which will register such factors as flow and
composition of the discharge.
h. The States must be able to modify, suspend or
revoke permits and must have the powers and procedures necessary
for recourse to criminal, civil and civil injunctive remedies.
Maximum civil penalties and criminal fines recoverable at the State
level are to be comparable to similar maximum amounts recoverable
at the Federal level.
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i. A State or interstate agency in submitting its
program for approval must provide information about the manpower
and resources of the State program. Relevant considerations are
the number of employees, their qualifications and functions, the
costs of administering the program and funding available for such
costs and a description of the kinds and number of industries
under the States' jurisdiction.
As part of the structure of the many State or
interstate agencies, designated boards or bodies will approve
NFDES permits. The State or interstate agency must give assurances
that no member of the approving board or body, including the Director,
will be a person who receives or has during the previous two years
received, a significant portion of his income directly or indirectly
from permit holders, which has been interpreted to mean 10% of
gross personal income for a year.
j. Participating state programs must have procedures
to control the disposal of pollutants into wells. By its procedures,
a State shall not allow uncontrolled disposal into wells; and where
the applicant has proposed well disposal as a way to meet terms of
a proposed permit, the State must prohibit the proposed disposal or
condition the permit with terms to prevent pollution of ground and
surface water and protect public health and welfare.
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C0 Federally Operated Permit Program
The Act contemplates that the Administrator of EPA will
issue permits in the early phase of the NPDES program and even
beyond that if a State does not apply for or receive either interim
authorization or approval of a qualified State permit program. In
these cases EPA will begin the process of issuing permits in coordina-
tion with the States. Although this federal authority is available,
the Agency has been faced with the difficult decision of whether
to begin issuing permits in certain areas or to await the issuance
of the Guidelines for the permanent state programs as well as the
issuance of all the necessary standards for the effluent limitations.
The procedures to be followed by EPA in processing and
issuing permits will be proposed in regulations to be published in
the Federal Register. With the exception of such subjects as
manpower and resources, and disposal of pollutants in wells, over
which the States have authority, the regulations for the Federal
permit program will meet the requirements of the Guidelines for
State programs as a minimum.
As for the substantive requirements of permits issued by
EPA, the Act authorizes the Administrator to issue permits for the
discharge of any pollutant or combination of pollutants upon the
conditions that such discharge will meet all applicable require-
ments of the Act relating to effluent limitations, water quality
standards, other effluent standards, inspections, monitoring and
guidelines establishing ocean discharge criteria. Prior to the
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establishment of these standards and limitations, he is to condition
permits in any way he determines to be necessary to carry out the
provisions of this Act.
The Federal procedural steps, as indicated above, will be
similar to the steps the States will have to include in their permit
programs. After determining which applications will require EPA's
issuance of a permit, the Agency will prepare and issue public notice
as to those applications. If, after comments are received, a deter-
mination is made that a requested hearing is required, EPA will
give notice and hold the hearing.
Following a hearing (or public comments period, if no
hearing is held) the Administrator, based upon the record before
him, will issue or deny the permit.
One step is exclusive to the Federal permit program. The
Act requires that an applicant for a federal license or permit,
and in this case for a permit to discharge, must provide the
licensing or permitting agency with certification from the State
in which the discharge originates. The State is to certify that
the discharge will comply with the basic requirements of the Act,
the effluent limitations, water quality requirements, new source
performance standards, toxic standards and pretreatment standards.
The certification must also set forth any effluent limitations
necessary to assure that the applicant will comply with any appro-
priate requirements of State law. The State is given a reasonable
time, which the Agency has interpreted to mean generally three
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months, but in no event more than a year, to provide its certi-
fication. Unless the State waives its certification or certifies
to the specified requirements, a Federal NPDES permit cannot issue.
The Agency has adopted the policy that it will issue
permits on a basis of priority. The major industrial and municipal
dischargers account for a high percentage of the total pollution
load going in the Nation's rivers and lakes and thus are placed in
high priority for the establishment of abatement programs under the
new legislation.
The fee application schedule used by the Corps of Engineers
in the RAPP has been adopted by EPA for its permit program except
for minor dischargers. As required by the Corps, each applicant
for a RAPP permit paid a flat fee of $100 and in addition $50 more
for each discharge point in excess of one. For minor dischargers
(less than 50,000 gallons per day) a flat fee of $10 will be
charged. These schedules were adopted by EPA pursuant to Section
483(a) of 31 U.S.C.
V. Scope of Federal Review Authority Over State Programs
The role of the Federal government in the National permit
system does not end with the authorization and approval of State
programs. Any permit issued under either the State interim or
final program is subject to a certain degree of Federal approval.
A. Review of Individual Permits
The Administrator has the authority to review individual
permits to be issued under the State interim authorization and
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place conditions on such permit as he determines are necessary to
carry out the provisions of the Act. If he objects to issuance
of a permit it shall not issue.
When a permit is to be issued under an approved State program,
the Administrator has the authority to object, within 90 days of
notification to him, in writing on two grounds: (1) that another
downstream State whose waters will be affected by the issuance of
a permit has notified him of recommendations it has in regard to
the permit application; or (2) that such permit will be outside
the guidelines and requirements of this Act.
The Administrator may waive his right to review an indi-
vidual permit application made under a final State plan, but not
under the interim authorization. A broader power is that he may
at the time he approves a State plan waive the right to review all
permit applications for any category of point sources within the
State submitting its program. But he must establish regulations
setting out which point sources will come within this waiver of
review.
B. Review of Total State Program
In addition to the Administrator's review of individual
permits, he has the power to take over a whole State permit
program. Whenever the Administrator determines, after holding a
public hearing, that a State is not administering its approved
program in accordance with the Act, he is to notify the State that
the program is not functioning properly. If the State does not
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take corrective measures within ninety days, then the Administrator
is to withdraw his approval of the program after he notifies the
State of this decision and has publicly, and in writing, made known
his reasons for withdrawing approval. The Administrator is not
to take such action except upon a clear showing of failure by the
State. The administration of the permit program will thus revert
to Federal authority.
VI, Enforcement
A. Federal Enforcement of Conditions of Individual State Permits
After State permits have been issued either under interim
or final programs, Federal power may be exercised to enforce them.
The thrust of the new legislation is to give the States the primary
responsibility for enforcing the permits they issue, but there are
circumstances in which the Administrator may assert his authority.
If the Administrator determines that a violation of a State permit
is occurring he may either take direct enforcement action or,
notify the permittee and the State that a violation has occurred and
if the State does not act within 30 days of notification, he can
proceed to take direct enforcement action. Any time the Adminis-
trator takes such action he must immediately notify the State.
B. Federal Enforcement-All State Permits
As with a State permit program not being administered
properly, if the Administrator finds that violations of permit
conditions are so widespread that such violations appear to result
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from a State's failure to enforce its permits, there will occur
what is called "federally assumed enforcement." However, before
the Administrator assumes full enforcement powers for a State,
the following steps must be taken: when the Administrator receives
information of widespread violations, he must notify the State,
wait 30 days to see if the failure is corrected and then give public
notice if he finds that he must assume enforcement. This period of
Federal enforcement will last until the State satisfies the Adminis-
trator that it will enforce its permits.
C» Types of Federal Enforcement Actions (Federal and State
Permit Conditions)
The direct enforcement actions, mentioned above, which
the Administrator may take to remedy violations of permits are
spelled out in the new Act. These are actions which may be taken
whether the Administrator is enforcing conditions of a federally-
issued or a State-issued permit (interim or final). Whenever the
Administrator "finds on the basis of information available to him"
that a person is violating effluent limitations, water quality
limitations, new source performance standards, toxic or pretreat-
ment standards, any inspection, monitoring or entry requirements
or any other condition of a permit such as scheduled compliance
dates, or prior to promulgation of all the relevant standards, any
conditions set in a permit, he is obliged to either issue an order
requiring the discharger to comply or bring a civil suit for
appropriate relief. Such a civil action would include a permanent
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or temporary injunction and civil penalties. Dischargers who
violate permit conditions are also subject to criminal penalties.
If the Administrator elects to issue a compliance order
instead of bringing a court action, and if the order is not obeyed,
the Administrator may bring a civil action for injunctive relief
to enforce his order or seek civil penalties for the violation of
his order. Any civil actions undertaken by the Administrator may
be brought in the U.S. District Court for the district in which
the discharger "is located or resides or is doing business."
VII. Public Participation and Citizen Suits
In the development of the guidelines or standards
required to be promulgated by EPA, the Act contemplates public
participation through comments or hearings and also participation
by other interested government agencies or groups in advisory
capacities. As discussed earlier, the public is to take a signif-
icant role in the permit process. All documents relating to a
proposed permit such as applications, fact sheets, draft permits,
comments thereon and other information are to be readily available
to the public for inspection. Moreover, public hearings may be
sought by any interested person.
Citizens are given the right to bring a civil suit under
the new Act against any person who is alleged to be in violation
of an effluent standard or limitation (which includes violation
of a permit condition) or of an order issued by the Administrator
or a State in regard to such limitation or standard, or against
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the Administrator "where he allegedly fails to perform any non-
discretionary act or duty. Under the Act citizen is defined as
"a person or persons having an interest which is or may be
adversely affected," and "Person" is defined to mean "an individual,
corporation, partnership, association, State, municipality, com-
mission, or political subdivision of a State, or any interstate body."
According to relevant legal interpretation, a citizen plaintfiff
must be a person with an interest that is or may be adversely
affected in fact; a generalized but unaffected 'interest in the
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environment would not be sufficient to give a citizen standing to
sue under the Act.
Persons who can be named as defendants in a citizen suit
include the United States and any other governmental agency to the
extent permitted by the eleventh amendment to the Constitution. The
suit shall be brought in the district court without regard to the
amount in controversy or the citizenship of the parties. In addition
to granting injunctive relief, the courts are authorized to apply
any appropriate civil penalties of this Act.
A suit against violators of the basic effluent requirements
cannot be brought, however, until after June 30, 1973. The seven-
month moratorium was designed to give EPA and the States time to
institute an NPDES permit program and to give dischargers an
opportunity to file an application for a permit.
A citizen may sue the Administrator for failure to perform
non-discretionary acts such as meeting a deadline in establishing
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regulations or standards which will be the basis for permit
conditions, or in preparing studies or reports. If the Adminis-
trator fails to take enforcement action after he finds that a
violation of the Act has occurred, he is also subject to a citizen's
action.
If a citizen is going to bring an action in any of these
circumstances except for violation of toxic or performance standard
requirements, the citizen must give at least 60 days notice prior
to commencement of the action (1) to the Administrator, (2) to
the State in which the alleged violation occurs, and (3) to the
alleged violator. A separate suit may not be brought by a citizen
if the Administrator or the State has commenced and is diligently
prosecuting a civil or criminal action to require compliance with
the violated standard, permit condition, or order.
VIII. Other Questions and Answers
A. What is the effect of the new Act o« pending Refuse
Act applications and permits?
Under the new Act, each application for a permit under
the Refuse Act pending on the date of enactment is considered an
application for a permit under the new Act. All permits issued
under the Refuse Act are considered to be permits issued under the
new Act.
B. What permit authority will be exercised over thermal
discharges?
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The Administrator will be establishing effluent limi-
tations on thermal discharges as part of the general effluent
limitations and, for new sources, as part of the performance stan-
dard. If the owner or operator of a point source, after opportunity
for public hearing, satisfies the Administrator (or the State where
appropriate) that the effluent limitation proposed for a thermal
discharge is more stringent than necessary to assure protection and
propagation of a balanced, indigenous population of shellfish, fish,
and wildlife, the Administrator (or State) may impose a different
limitation which will still provide that protection.
C. Are industrial users of publicly-owned treatment
facilities required to obtain a permit? What control is placed on
such indirect discharges?
Individual industrial users of publicly owned waste
treatment facilities are not required to obtain NPDES permits,
although they are required to monitor their discharge. However,
permits for waste treatment facilities must identify any industrial
users and the quality and quantity of the discharge into the
system. EPA or the State agency, as the issuer of the permit to
the public facility, is to be notified by the public facility of
any changes in the volume or constituency of the discharge from
the industrial user.
D. Can a State ever apply standards or requirements to its
permits other than the Federally promulgateid ones?
If the Administrator gives his cpproval a State may
apply its own standards and regulations applicable to new source
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performance standards, sewage sludge disposal, and discharge
monitoring and reporting thereof, as long as they are as stringent
as the federally promulgated one.
E. Does the scope of the new Act's jurisdiction include
ground water?
To a limited extent, ground water is subject to regu-
lation under the new Act in that States are to control the
disposal of pollutants into wells, and the Federal government is
charged with developing comprehensive programs for preventing,
reducing, or eliminating the pollution of ground waters and under-
ground waters.
Whereas the States have the authority to control dis-
posal of pollutants into well, the Federal government only has
such control where a well disposal is related to a discharge to
navigable waters. The drafters of the new Act considered
providing such authority to both Federal and State authorities,
but determined that State law was or could be made sufficient to
control deep-well disposals.
F. May individual exceptions be made to the application
of the "best available technology" requirement?
In addition to the variance relating to thermal
discharges, the Administrator may modify the requirement for
application of the best available technology economically
achievable with respect to any point source for which an application
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is filed after July 1, 1977. The applicant must make a satis-
factory showing to the Administrator that such modified require-
ments will (1) represent the maximum use of technology within the
economic capability of the applicant and (2) will result in
reasonable further progress toward the elimination of the dis-
charge .
G. Are facilities operated by the Federal Government
subject to regulation in the new Act?
Every Federal department, agency, or instrumentality
which has jurisdiction over any property or engages in any
activity resulting in the discharge of pollutants shall comply
with any Federal, State, interstate or local pollution control
requirements to the same extent that any person must comply. The
President can exempt an executive agency if it is in the paramount
interest of the United States. But no exemption can be granted
from the requirements of pretreatment or toxic effluent standards,
or the new source performance standards. The regulations for the
Federal NPDES program include "any agency or instrumentality of
the Federal Government" within the definition of person. There
was consideration given to having Federal facilities subject to
any NPDES permit, federally or state-issued. Finally, it was
determined that only federally issued permits were applicable.
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