February 7, 1973








           *  *  *
                            U.S. ENVIRONMENTAL
                             PROTECTION AGENCY
                            WASHINGTON,  D.C.


     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


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


     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


                       TABLE OF CONTENTS


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



          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


VII.   Public Participation and Citizen Suits 	 35

VIIIu  Other Questions and Answers	37


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.


        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


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.


        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


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


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,


 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


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


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


         4.  National Pollutant Discharge Elimination System

             The new permit system is called the National Pollutant

Discharge Elimination System  (NPDES).  It is a National system

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.

         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

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

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


          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


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


              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

available technology economically achievable for the 1983 target

date.  The Administrator will identify three things in the


                  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


                  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


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

                  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


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


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

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.


              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

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



that the injection or disposal will not result in the degradation

of ground or surface water resources.

          3.  Categorically Prohibited Discharges and Unregulated

              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


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:

             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


             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.


     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


         2.  Minimum Procedural Elements

             In addition to legal authority, a State permit program

cannot be approved unless it conforms to certain guidelines

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

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,

             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


             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.


             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.

     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


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

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

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


    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

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

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

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


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
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

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


      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


           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


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


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.