Reviewing Proposed Permit Regulations
A Citizen's Guide
Auiiust 1978

-------
United States          Office of Water
Environmental Protection*;    Enforcement (EN 335)
Agency             Washington DC 20460
August 1978
Reviewing Proposed
Permit Regulations

A Citizen's Guide

-------
Page Intentionally Blank

-------
     CITIZEN'S GUIDE TO REVIEWING THE
    PROPOSED PERMIT PROGRAM REGULATIONS

INTRODUCTION:

     On August 21, 1978, the Environmental
Protection Agency (EPA) proposed revised regulations
to govern the permit programs established under
the Federal Water Pollution Control Act of 1972,
as amended by the Clean Water Act of 1977,(collec-
tively referred to as the Clean Water Act).  The
major program addressed by the regulations is the
National Pollutant Discharge Elimination System
(NPDES) under section 402.  Certain provisions
also will affect the program for the control of
the discharge of dredged or filled material under
section 404.  Both programs require a permit to
be obtained before the discharge of pollutants.
Section 402 permits are to be issued by EPA and
section 404 permits by the Secretary of the
Army (acting through the Corps of Engineers).
In both cases, qualified States may assume
permitting authority, provided certain conditions
are met.  These proposed regulations outline
the conditions under which an NPDES permit
is required, identify the required content of
NPDES permits, set forth the procedures for
issuance of NPDES permits, and outline the
requirements States must meet in order to
assume permitting authority under either section
402 or 404.

     The proposed regulations were published
in the Federal Register  (43 FR 37078,
August 21, 1978), pages 37078 to 37134.  Copies
of the proposal  may be obtained from Government
Printing Office bookstores, EPA Regional Offices,

-------
or EPA headquarters (attention:   Edward Kramer,
U.S. EPA, EN-336, 401 M St.,  S.W. Washington,
D.C. 20460).  Written comments should be submitted
to the same address by October 20,  1978.  Due  to
the length of the proposal,  please organize your
comments by page number and  section.

   Table of Contents:

     I.  Background                  page 2
    II.  Summary of Proposed
         Regulations                 page 5
   III.  Detail of the Provisions    page 7
         A.  Part 122                page 7
         B.  Part 123                page 13
         C.  Part 124                page 16
         D.  Part 125                page 19
    IV.  Major Issues                page 20
I.  Background

     The EPA is proposing new regulations for
the permit programs for three purposes:

     o  to clarify and improve existing program
        regulations and procedures in light of
        past experience;

     o  to fill in significant gaps in coverage
        under the existing regulations, particularly
        in response to court decisions and the
        emerging emphasis on the control of toxic
        and hazardous pollutants; and

     o  to make the regulatory changes which
        are necessary under the 1977 amendments
        to the Clean Water Act (P,l. 95-217).

     It is important to keep in mind that
the language referred to throughout this guide is
proposed.  The provisions are not final.  The
purpose of the proposal is to suggest changes and

-------
stimulate comment.  Only after comments received
from any interested person or group have been
reviewed and appropriate changes made will
regulations be published in final form.

     Existing Regulations

     The existing regulations will continue to
govern the operation of the program during the
proposal period.  There are several revisions
to "existing regulations" which will be made
while these major revisions are pending. It is
necessary to move ahead with certain revisions
independent of the major revisions due to time
deadlines established by the Clean Water Act
Amendments of 1977 (CWA) and recent court decisions.

     The following regulations, published in the
Federal Register, have been or will be incorporated
into existing regulations.

       DATE                       SUMMARY

43 FR 17484,              Section 301(h) of CWA
April 25, 1978            variance from secondary
  (proposed)              standards for qualifying
                          municipalities discharging
                          into marine waters

43 FR 21266,              Section 301(i) of CWA provides
May 16, 1978              for an extension of com-
  (interim final)         pliance deadlines for
                          eligible municipalities

43 FR 27736,              Sections 307(b) and (c) of CWA
June 26, 1978             require that pretreatment
  (final)                 standards be established
                          to control the introduction-
                          of non-domestic wastes into
                          publicly owned treatment
                          works

-------
     DATE                         SUMMARY

43 FR 22160,              Veto/Modification
May 23, 1978              procedures  and criteria
  (final  in part,          EPA will  use when  (1)
  proposed in part)        objecting to  (vetoing)
                          State  issued permits
                          and (2)  requiring  modifi-
                          cation of permits  to
                          incorporate Best Available
                          Treatment (BAT)  toxic
                          requirements.

     Purpose of This Booklet

     This booklet is designed to facilitate  your
understanding of the proposed revisions.   We have
tried to identify the major provisions and
issues here, and there is a more thorough  discussion
covering all new aspects of the  proposal  in  the
Preamble (pages 37078 to 37088 in the August 21
Federal Register).  Your comments are solicited
on all aspects of the proposal,  and in  particular
on those issues raised in this guide.  Below is a
list of the new titles, and a summary of  the
proposed regulations.  For those of you  interested
in more detail, a description of the  major
provisions and their location in the  proposed
regulation (indicated by the number of  the Part
and paragraph) follows.

     Four new Parts of Title 40, incorporating
all of existing Parts 122, 123,  124,  125,  and 402
will be established as follows:

     o  Part 122  National Pollutant  Discharge
                  Elimination System

     o  Part 123  State Permit Program  Requirements

     o  Part 124  NPDES Procedures

     o  Part 125  NPDES Criteria and  Standards

-------
SUMMARY OF PROPOSED REGULATIONS:

Part 122 - National Pollutant Discharge Elimination
           System

     Proposed  Part 122 establishes the basic
"program definition" of  the NPDES, whether
administered by  EPA or an approved State.  This
part covers the  full range of substantive program
requirements,  spelling out in detail who must
apply  for a permit; how  a permit  is issued; what
terms, conditions, and schedules  of compliance
'must be incorporated into permits; when and how
monitoring and reporting of permit compliance
must be performed; when  permits may be revised or
reissued; and  what special requirements apply to
certain types  of dischargers.

Part 123 - State Permit  Program Requirements

     Proposed  40 CFR 123 establishes guidelines
specifying what  the Administrator will require
before approving State permit programs under
sections 318 ('aq.uacul ture), 402 (NPDES), 404
(dredged or fill material), or 405 (sewage
sludge) of the Clean Water Act. ,In addition, the
regulations outline the  process of State program
approval and revision.   Permit programs under
sections 318 and 405 may not be approved independent
of section 402 permit programs and must be
incorporated into all such programs.  No partial
program approvals will be granted.  Particular
substantive and  procedural requirements of
proposed 40 CFR  Parts 122, 124, and 125 are
incorporated by  reference for programs under
NPDES  (i.e., sections 318, 402, and 405) and

-------
serve as guidance for the  section  404 program
pending the development of corresponding  section
404 regulations (which will  be  proposed soon as
Part 126).   Furthermore,  the Part  123 regulations
describe actions which must be  taken to conform
to the Clean Water Act amendments  of 1977 in
States with previously approved NPDES programs.

Part 124 - Procedures for NPDES

     This part establishes all  the procedures  to
be used by EPA and approved States for  receiving
permit applications,  writing draft permits
and soliciting public comment on them.  In
addition, it establishes procedures to  be used by
EPA for issuing final permits and holding
evidentiary hearings.  (NPDES State procedures
for issuing final permits and providing appeals
of permit terms and conditions  are not  included
in these regulations since State procedures are
established in accordance with  requirements of
State law.)

Part 125 - Criteria and Standards  for NPDES

     Proposed Part 125 contains the particular
requirements or standards which must be applied
by EPA or approved States in making certain
permit determinations.  Often these determinations
(e.g., concerning variances from or the application
of EPA promulgated guidelines)  must be  made in
the course of permit modification  or issuance.
Most of these items have not been  previously
incorporated into regulations.   Some are  still
under development and will be proposed  at a later
date.

-------
DETAIL OF THE PROVISIONS:

A.   Part 122 - Applicability of the NPDES
     Program

     Any discharge of a pollutant, including
discharges from Federal facilities (§122.3), into
waters of the U. S. without an NPDES permit
is unlawful, unless such discharge is explicitly
exempted from coverage of these regulations
(§122.2).  Exemptions from the NPDES program
include: (1) discharge from vessels, except
rubbish, trash, or garbage, or discharges from
production vessels (such as mining vessels,
seafood processing vessels, etc.); (2) discharges
of dredged or fill material regulated under
section 404, except where the primary purpose of
the discharge is the disposal of waste materials
rather than the changing of bottom elevation; (3)
certain discharges of pollutants into a Publicly
Owned Treatment Works (POTW); and (4) discharges
from agricultural or silvicultural activities
except from animal feeding operations, aquatic
animal production facilities, and silvicultural
point sources and to aquaculture projects (all of
these are further defined at a later point)
(§122.4).

     The proposed regulations also outline the
conditions and requirements an NPDES permit must
contain.  The permit shall not be issued, if
among other things, it:  (1) does not comply with
requirements of the Clean Water Act; (2) does not
comply with State requirements; (3) is objected
to by EPA (in the case of State-issued permits);
4) permits a discharge substantially impairing
anchorage or navigation; or 5) is inconsistent
with a section 208 plan  (§122.13).

     Permittees are authorized to discharge
pollutants for which information was requested in
the permit application,  only as expressly

-------
                       8

authorized by th« permit.   To implement this
requirement, EPA will  be developing new application
and permit forms which will  be available for
public comment in the  near future.   All discharges
must be in accordance  with permit terms.  Permits
provide for EPA or State inspection and monitoring
and require dischargers to inform EPA or the
State in writing of instances of noncompliance
with permit requirements.   Disposal  of sludge,
solids, filter, backwash,  or other pollutants
removed in the course  of treatment to prevent
entry of the pollutants into the water is to be a
condition of the permit.  In addition, strict
conditions, including  notice requirements, are to
be included in permits to  control bypass or
diversion of wastes from treatment require-
ments and incidents of treatment facility "upset"
(§122.14).

     Permits are to include all  applicable
limitations and standards  under the Clean Water
Act, including effluent standards or prohibitions
and pretreatment standards under section 307.
Permits for POTWs shall include requirements for
a local pretreatment program including notice
to EPA of new discharges and identification of
all significant sources of pollution.  Some of
the other permit requirements are:   (1) any
conditions reasonably  necessary for the achievement
of effluent limitations, including conditions
imposed by EPA as part of  a construction grant;
(2) any more stringent requirements needed to
meet State requirements, State water quality
standards, comply with requirements of section
208 plans, comply with variance provisions, or
meet downstream quality requirements; (3) conditions
for sludge disposal under section 405, and (4)
best management practices  to control toxic and
hazardous pollutants from on-site industrial
activities under section 304(e).  With limited
exceptions, permit conditions are to be at least
as stringent as those of previously issued
permits (§122.15).

-------
      In  addition,  where  applicable, permits
 should be  consistent  with  other  requirements of
 Federal  law,  including,  but  not  limited to the
 following:   Executive Order  11990  (Protection of
 Wetlands),  Executive  Order 11988 (Preservation of
 Floodplains),  the  Wild and Scenic  Rivers Act, the
 National Historic  Preservation Act, the Land and
 Water Conservation Act,  the  Endangered Species
 Act,  and the  Coastal  Zone  Management Act (§122.49).

      Permits  are  to be written for a term not to
 exceed five years. (§122.12).   They may be
 modified under certain circumstances, as described
 in  the regulations, but  no modification may
 extend the  permits beyond  the five-year term
 (§122.31).   Cause  of  modification  includes, among
 other things:  violation  of permit  requirements
 (permit  may be made more stringent only); failure
 to  disclose fully  all  relevant information;
 reduction  or  elimination of  the  discharge;
 information indicating the discharge poses a
-threat to  human health or  welfare; failure to
 allow inspection  or monitoring;  material and
 substantive  alterations or  additions to discharger's
 operation;  certain instances of  judicial remand
 or  EPA withdrawal  or  revision of effluent limita-
 tions or standards; modifications  specifically
 allowed  by  the Clean  Water Act;  or modifications
 to  implement  EPA's toxic pollutant control
 program  (§122.31).

      Certain  categories  of discharge are subject
 to  special  provisions and  conditions under the
 NPDES program.  Briefly, they include the
 fol1owi ng:                '

      1.  Disposal  of  Pollutants  into Wells and
 POTW's - States with  NPDES authority must control
 thedisposal  of pollutants into  wells and
 POTirs to  protect  human  health and welfare and to
 prevent  pollution  of  ground and  surface water.

-------
                       10

Permit effluent limitations must be  adjusted and
made more stringent to reflect disposal  of  part
of a waste stream into a well  or POTW (§122.41).

     2.  Animal Feeding Operations - Individual
permits are required for Concentrated Animal
Feeding Operations, which are defined as feeding
operations (animals confined for at  least 45 days
out of 12 months and no crops, vegetation,  forage
growth or post-harvest residues are  sustained):
(1) supporting more than 1,000 ani'ial units; (2)
supporting more than 300 animal units plus  either
pollutants discharged into a stream  thru a
man-made ditch or pollutants discharged directly
into a stream running through the operation or
(3) designated a significant contributor of
pollution by EPA or the State after  an on-site
inspection.  All other Animal Feeding Operations
will be covered by general permits (§122.42).

     3.  Aquatic An JIM) Production Facility -
Individual permits are required for  Concentrated
Aquatic Animal Production Facilities, which
are defined as a fish farm, hatchery, or other
facility: (1) producing more than 20,000 pounds
of aquatic animals per year or (2) designated
by EPA or a State as a significant contributor of
pollution.  All other Aquatic Animal Production
Facilities will be covered by general permits
(§122.43).

     4.  Aquaculture Projects - Under section
318, discharges to aquaculture projects require
an NPDES permit.  They ara defined as managed
water areas which use the discharge  of pollutants
for the maintenance of production of harvestable
freshwater, estuarine, or marine plants or
animals (§122.44).

     5.  Separate Storm Sewers - Concentrated
separate storm sewers are subject to individual
permits; all others are subject to general

-------
                       11

permits.  Concentrated separate storm sewers  are
those which are designated by EPA or a State,
e.g. when effluent guidelines are promulgated  for
separate storm sewers in a category, section  208
plans contain controls for separate storm sewers;
or EPA or a State determines that a separate
storm sewer is a significant source of pollution
(§122.45).

     6.  Si Ivi cultural Activities - Sf 1 vical tural
point sources requiring individual NPOES permits
are limited to the following: (!) a discernible,
confined, discrete conveyance related to rock
crushing, gravel washing, log sorting, or log
storage facilites or (2) activities designated by
EPA or a State to be a significant contributor to
pollution (§122.46).

     7.  New Sources - New source means  any
facility or installation from which there may be
a discharge of pollutants which commences
construction after Performance Standards under
section 306 of the Clean Water Act are (1)
j)r:>nulgated,  or (2) proposed and promulgated
within 120 days of proposal  [§122.3(t)].  Con-
struction activities which result in a new source
are: (1) construction of a source on a new
site or construction of a source totally replacing
an older facility or (2) modification of an
existing sourca by changing, replacing,  or
adding to process or production equipment.
Construction means (1) the beginning of  a continuous
on-site construction program, including  the
placement, assembly or installation of permanent
facilities or equipment for use in the source's
operation or significant site preparation work
or (2)  the entering of a binding contractual
obligation for the purchase of permanent facilities
or equipment for the source.

     The issuance of an NPOES permit to  new
sources located in a State without NPDES permitting
authority may be a major Federal ~ction  under

-------
                       12

the National  Environmental  Policy  Act (NEPA)
requiring an environmental  review  pursuant to
NEPA, including, where appropriate,  the preparation
of an Environmental  Impact  Statement (EIS).   No
on-site construction may begin until  after
issuance of a final  EIS or  until  15  days after
issuance of a negative declaration unless the
construction is approved by EPA and  is determined
not to cause significant adverse environmental
impact.  Where an EIS recommends denial of the
permit, the permit shall be denied.   Where the
EIS recommends the imposition of conditions,  the
permit shall not issue unless the  permit applicant
agrees as a condition of the permit  to take the
actions recommended by the  EIS.

     New sources, as defined by these regulations,
which meet applicable New Source Performance
Standards (NSPS) are not subject to  more stringent
technology-based standards  for the shortest of
the following periods: ten  years from completion
of construction, ten years  from the  beginning
of a discharge, or the period of depreciation or
amortization under the Internal Revenue Code.
This protection from more stringent  standards
does not apply to non-technology-based standards
(such as water quality standards)  and any effluent
limitations controlling a pollutant  not covered
in the NSPS, including toxics (§122.47).

     8.  Non-compliance Reporting  -  The proposed
regulations also require that EPA or States with
permit-issuing authority compile and make available
to the public Quarterly Non-Compliance Reports.
This,report is to contain narrative  information
of the following sort for major permittees:  (1)
failure to complete construction requirements by
the date specified in the permit;  (2) failure to
provide complete compliance schedule reports; (3)
noncompliance with discharge requirements
where the permittee has not returned to compliance

-------
                        13

within  45  days or where a pattern of non-compliance
(e.g.,  violation of the same standard or limitation
in  two  consecutive quarters) is established; (4)
failure to report effluent data as required in
the permit or  (5) submission of a deficient
report.

     The narrative information is to include:  (1)
name, location, and permit number of the violator;
(2)  brief  description and date of each instance
of  noncompliance; (3) brief description, including
date, of enforcement action taken; (4) status  of
the  noncompliance; and  (5) description of mitigating
circumstances.  Separate lists are to be provided
for municipal, non-municipal and Federal permittees
and  listings are to be in alphabetical order by
the  name of the permittee.

     Statistical information is to be compiled
for  all  instances of non-compliance by major
permittees not reported narratively.  Statistical
compilation is also required for all minor
permittees whose compliance has been reviewed.
In  addition, a separate list shall be provided
annually for minor permittees a year or more
behind  on  their construction schedules (§122.23).
B.  Part 123 - Requirements for State Assumption
               of Permit Authority Under Sections
               402 and 404

     Part 123 outlines the requirements and
procedures for State assumption of permitting and
enforcing authority under sections 402 (NPDES
program) and 404 (control of the discharge of
dredged or fill material), for EPA approval  of
State programs and for revisions to approved
programs.  It should be noted that the section
402 NPDES program now .includes permit requirements
under section-318 (aquaculture projects) and 405
(disposal of sewage sludge) (§123.1).   State NPDES

-------
                       14

submissions must therefore meet the requirements
of sections 318 and 405 for EPA approval  under
section 402.  The requirements and procedures for
EPA approval of a State's program under section
404 are, however, separate from although similar
to those for approval  under section 402.

     A State program will not be approved if the
State does not have all the necessary authority
and resources and does not agree to implement
all the requirements of the program.  No partial
program approvals will be granted.  After approval
the States are required to conduct their programs
at all times in accordance with statutory require-
ments, guidelines, and regulations (§123.1).

     In order to obtain EPA approval, a State
must submit to EPA a full and complete description
of each program it proposes to administer
(§123.3) plus a statement from the State's
attorney general that the State's law provides
adequate legal authority to carry out and meet
the requirements of these regulations (§123.4).

     Prior to approval of the States's program,
EPA and the State will sign a Memorandum of
Agreement describing the manner in which the
permit program will be administered by the State
and reviewed by EPA.  This agreement is to be
reviewed and revised as necessary, but at least
once every three years.  The memorandum is to
include a statement concerning EPA's waiver of
authority to review permits proposed to be
issued by the state.  For the NPDES program, no
waivers are allowed for the following activities:
(1) discharges from publicly owned treatment
works (POTW's) exceeding 0.5 million gallons per
day (MGD) (2) discharges of unpolluted cooling
water exceeding 1 MGD: (3) all other discharges
above 0.1 MGD; (4) discharges into the territorial

-------
                       15

sea, the contiguous zone or the oceans; (5)
discharges of toxic pollutants; (6) discharges
of hazardous pollutants; or (7) discharges
affecting the waters of a State other than the
one proposing the permit.  For the section 4U4
program, no waivers are allowed for the following
activities: (1) the discharge of toxic pollutants;
(2) the discharges of hazardous pollutants;
(3) discharges affecting the waters of a State
other than the one proposing the permit; (4)
discharges incidental to an activity which
has as its purpose the changing of the use of the
area, where the flow and circulation of waters
may be impaired or reduced; (5) discharges
into wetlands; or (6) proposed general permits
(§123.5).

     Requirements for the processing, issuance,
and substance of permits issued by States are
laid out in detail in the regulations. In
general the requirements are the same as or
similar to those which EPA must meet in issuing
Federal permits.  One of these requirements is
that maximum civil penalties and criminal  fines
be comparable to similar maximum amounts
recoverable by EPA under the Clean Water Act.
In addition, civil penalties actually assessed
should be appropriate to the nature of the
violation, taking into consideration the amount
of environmental damage and the economic benefit
gained from delayed compliance ($123.72).

     In addition, the regulations now require
that any State permit program have an approved
continuing planning process (section 2U8 and
303 water quality management and planning) at all
time consistent with the requirements of the
Clean Water Act (§123.82).  States must also
have measures to protect against conflict of
interest in any member of a State board or body
which processes permits (§123.83).

-------
                       16

     The process for EPA approval  of  both  section
402 (§123.91) and 404 (§123.92)  programs is  laid
out in the regulation.   This  section  includes
time constraints upon EPA's  action and  requirements
for public notice,  comment,  and  hearings on  the
State's program.  Provision  is also made in  the
regulations for revision of  approved  State
programs (§123.101).
C.   Part 124 - Procedures  for EPA  Decision-Making
                Regarding NPDES Permits

     Part 124 outlines the  process  for  applying
for an NPDES permit,  seeking a modification  of an
existing permit, EPA decision-making  on  the
permit application,  and administrative  hearings
and appeals on the terms of the permit.   The
regulations require  all discharges  that  do
not now have a permit, that are expanding or
modifying existing facilities in such a  way  as to
be classified as a new source, or that  have
expiring permits to  apply to either EPA  or,  where
appropriate, the State, for an NPDES  permit
(§124.11).  Special  procedures are  set  up for new
sources because of the NEPA responsibilities
concommitant with the issuance of new source
permits by EPA (§124.12).

     The Clean Water Act authorizes a number of
variances from or modifications to  effluent
limitation requirements, including, but  not
limited to: alternative effluent limitations for
thermal discharges (§124.14); a variance based on
economic capability  under section 301(c);
a variance based on  environmental  considerations
under section 301(g); and extensions  of  deadlines
under sections 301(i) and 301(k).   The  regulations
require that, to the extent possible, such
variances be requested at the time  a  permit  is
applied for and lay  out the procedures  for such
requests.

-------
                       17

     The regulations do not change very  much  the
initial steps in the process of securing a
permit, e.g. submittal  of an application for  a
permit, preparation of fact sheets,  circulation
of fact sheets and other information,  and prepara-
tion of the draft permit.  The regulations,
do however, lay out in more detail than  previously
what information must be contained in  the fact
sheets (§§124.42 and 124.63) and the requirements
for circulation of information on proposed
permits to other interested Federal  agencies
(such as Corps of Engineers and the Fish and
Wildlife Service) and State agencies (§§124.21-23
and 124.31-34)  The regulations also require  that
all permit decisions be made only on the basis of
a formal administrative.record developed during
the process of permit formulation and  issuance
(§124.44). Materials to be included in the
administrative record are laid out (§§124.44  and
124.64).

     After the initial  stages of permit  processing
(through issuance of a draft permit) the regulations,
in new provisions, provide two different sets of
procedures for appealing permit terms  and conditions:
one will be more formal and adversarial  in  nature;
the other less so, in accord ance with the  terms
of the Federal Administrative Procedures Act  for
cases of "initial licensing."  These procedures
apply only to EPA issued permits.  Appeals  on NPDES
permits issued by States follow State  law.

     The more formal appeal procedures are  very
similar to that outlined in previous regulations.
Following opportunity for public notice  and
comment on the draft permit (§124.51)  and the
issuance of a proposed permit (§124.61), any
interested person has the opportunity  to request
a full evidentiary hearing to challenge  the
permit terms.  The process of the evidentiary
hearing is very similar to that formerly employed,

-------
                       18

including requirements for requesting the hearing,
grounds for rejecting requests for admission of
additional parties, the admission of written
evidence, the opportunity to cross-examine
witnesses, and the handling of legal issues by
EPA's General Counsel.

     There are, however, new provisions and
requirements in the process.  They include: (1)
An affirmative obligation on the part of any
interested person to raise all arguments and
factual grounds supporting their position by the
close of the public comment period on the proposed
permit (§124.53) and the concommittant provision
that issues not raised during the public comment
period may not be raised during the evidentiary
hearing unless good cause for not raising it
previously can be shown (§124.76); (2) The
unavailability of an evidentiary  hearing to
those dischargers subject to a general permit.
They should apply for an individual permit, which
can then be challenged in an evidentiary hearing
(§124.71); (3) Stays of contested terms of
permits (as designated by EPA) may be granted,
except for cases involving initial permit
issuance and permit modification (§124.61); (4)
Persons entitled to an evidentiary hearing may
appeal issues presenting important policy
questions directly to the Administrator or
Regional Administrator (§§124.101 et. seq.); (5)
The right to cross-examination is recognized,
but not automatically granted.  The proponent of
cross-examination has the burden of justifying
its use.  Also, EPA employees may be subject
to cross-examination, but only on factual issues
(§124.85); and (6) All evidence is to be submitted
in written form (§124.85).

     EPA has taken advantage of a provision of
the Federal Administrative Procedures Act which
allows appeal decisions on initial licensing to

-------
                       19

be made on  the basis of procedures much less
adversarial  than  the formal hearings otherwise
required.   Thus,  under the new regulations, the
following appeal  procedure can be followed for
permit issuance to  new permittees and "first
time" permit determinations:  (1) Following
notice and  an opportunity to submit written
comments (§124.112), a less formal panel hearing
may be requested  on the permit terms (§124.113);
(2) Written comments are to be filed prior to the
hearing, and in response, EPA is to file written
reply comments, the administrative record, etc.,
(§124.117); and (3) An EPA panel, consisting of
EPA employees having special expertise on the
permit issues shall participate   along with an
Administrative Law Judge (the Presiding Officer).
The panel may question any person participating
in the hearing, including those requested to
appear, and a verbatim transcript shall be made
of the hearing; (4) Requests for cross-examination
on any disputed issue of materia'l fact may be
made.  It may be  granted or alternative methods
of clarifying the record may be designated
(§124.119).
D.   Part 125 - Criteria and Standards for the
                National Pollutant Discharge
                Elimination System

     Part 125 lays out the criteria and standards
EPA will consider in writing substantive requirements
into permits.  Many subsections of this part have
been reserved for later developments.  Part 125
states that the technology-based requirements of
the Clean Water Act are the minimum level  of
control that must be imposed in an NPDES permit
(§125.2).  The technology-based requirements
are to be applied prior to or at the point of
discharge and may not be satisfied by non-treatment
techniques such as flow augmentation.  (Non-treatment

-------
                         20

techniques may be applied under limited
circumstances to meet water quality  standards,
however) (§125.2).

     Criteria for granting various of the  Clean
Water Act's variances are also outlined in this
Part, such as the "fundamentally different"
variance for BPT and BAT (§125.25) and criteria
for determinations of alternative thermal  effluent
limitations under section 316(a) (§125.45),
Others are reserved for later treatment.
IV.  MAJOR ISSUES

     Although much of the proposed regulation  is
new, we expect the majority of comments  to be
concerned with the following provisions.
A brief description of the issue is presented,
along with a citation where the applicable
provision can be found in the proposal.   Your
comments on these issues are especially  solicited.

     1.  The definition of new source §122.3(t).
Facilities which commence construction after the
promulgation of applicable new source performance
standards are "new sources."  However, as defined,
facilities which commence construction after the
proposal of applicable new source performance
standards would be considered new sources only  if
those standards were published in final  form
within 120 days of proposal.  New facilities
which do not fall within these definitions would
be "new dischargers" but not "new sources."
These "new dischargers" (1) would not be able  to
take advantage of the "new source" provision in
section 306 of the Clean Water Act which allows a
period of time during which no new performance
standards could be imposed (toxic controls and
technology-based standards could still be applied)
and (2) would not be "major federal actions"

-------
                         21

requiring the preparation of an Environmental
Impact Statement under the National  Environmental
Policy Act (NEPA), since that requirement applies
only to new sources.

     2.  Signatories to permit program forms
§122.5.
The proposed regulations have been drafted to
require that all corporate permit program forms
be signed by an executive officer of at least  the
level of vice-president.  In addition, persons
signing permit program forms must state that they
have made sufficient inquiries to certify the
veracity of the submitted information.  These
provisions are important to assure accountability
on the part of corporate and municipal officials.

     3.  The permit as a limited authorization to
discharge §122.14(a).
In order to clarify the scope of the discharge
that is allowed by the NPDES permit, the proposed
regulations state the basic principle that
permittees may discharge pollutants for which
information was requested in the application only
as expressly provided in the permit.  While
certain dischargers may contend that this principle
is unreasonable and unduly burdensome, we believe
that it is a necessary response to (1) past
uncertainties as to the coverage of a permit and
(2) recent Congressional criticism.  Nevertheless,
efforts are now underway to assure that the
permit application implements this principle in  a
fair and practical manner.  (A revised permit
application will be available for public comment
within the next few months).  There are two
approaches being considered; 1) applicants must
characterize the amount and nature of all pollutants
in their waste streams or 2) information will  be
sought for specific pollutants (e.g., conventional,
toxic, hazardous, those cited in primary drinking

-------
                         22

water standards, etc.).   Comments are solicited
concerning these approaches,  test methods,
screening mechanisms and methods for applying
these requirements.

     4.  Bypass and upset provision §122.14(1)
and (m).
For the first time in regulations, the proposed
revisions specify when and under what conditions
bypass and upset incidents are permissible
and do not constitute permit violations.   Bypass
or diversion of wastes from any portion of  the
treatment facilities is allowed only where
necessary to prevent loss of life, serious
injury, or severe property damage and when  there
are no feasible alternatives to bypass.  Similarly,
upset or exceedance of permit limitations for
reasons beyond the control of the permittee is  a
possible defense to an enforcement action
if certain demonstrations can be made by the
discharger.  Some dischargers may view the
limitations on bypass and upset as overly restrictive.
Should bypass or upset be allowed under other
conditions?  Should bypass or upset be further
restricted, and if so, how?

     5.  Retention in reissued permits of existing
permit limits more stringent than subsequent
guidelines §122.15(jT
Although this provision is limited to circumstances
where the more stringent permit limits were
actually achieved or achievable and is intended
to prevent "back-sliding" in pollution control,
it may be subject to objection by affected
industrial dischargers.  Should the limits
established by published effluent guidelines be
used uniformly, that is without regard to past
pollution control performance?

     6.  Calculation of effluent limitations §122.16(a)
Effluent limitations must be calculated for each
outfall or discharge point of a permitted facility.

-------
                         23

It has been suggested that this requirement be
interpreted in such a way that, for a given
plant, the sum of effluent limitations on all
outfalls could be re-allocated among the outfalls.
Thus, some outfalls could receive effluent
limitations more stringent, and some less stringent,
than would be required if technology based limits
were applied to each outfall.  Should a facility's
discharges be looked at as a whole or on an
outfall by outfall basis?

     7.  Extension of expiring permits under the
Administrative Procedure Act (APA) §122.33.
The proposed regulations limit the availability
of automatic extensions of expiring permits to
circumstances where delay is not caused by the
permittee, and authorizes the denial of an
extension where the discharger is not in compliance
with the expiring permit.  These limitations are
implicit in the APA, but may be subject to
objection by dischargers, particularly those who
anticipate delay in permit reissuance due to
evidentiary hearings.  Under what circumstances
should expiring permits be extended automatically?

     8.  Adjustment of permit limits to reflect
disposal in a deep well or to a publicly owned
treatment works §122.41.
The proposed regulations would allow permit
limits to be tightened to reflect these two kinds
of disposal, i.e., effluent limits would be
based upon the flow and pollutants actually
discharged to waters of the United States.  This
provision will assure that pollution controls
are applied equitably.

     9.  New source coverage §122.47-
The proposed regulations clarify for the first
time: (1) when existing sources may become new
sources based upon new construction and (2)
that the new source "protection period" under  -

-------
                         24
section 306 applies only to technology-based
permit requirements for covered pollutants,  and
does not apply to more stringent water quality
standards or to coverage of additional pollutants.
Are these appropriate limitations on the use
ni c uncic a|j|jr u|j r i a uc iiiiiiia
of new source "protections"?
    10.  Designation of one State agency to
administer the 404 (dredge and fill)  prograni
§123.3(b).
Although one agency must be the designated 404
permitting authority, local agencies  may be able
to play a significant role in the planning
and control of activities subject to  404 permits
and in the review and consideration of applications
for 404 permits.  Comments are solicited on the
nature of permissible State - local institutional
relationships in approvable State 404 programs.
For instance, if local  agencies want  to be
delegated State permitting authority, what
controls are necessary by the State agency to
ensure compliance with program requirements?

    11.  Memorandum of Agreement between Corps of
Engineers and State §123.3(h).
For the 404 (dredge and fill) permit program,
such an agreement seems required by the provision
for a "full and complete description" of a
proposed State program under section  404(g)(l).
Without an agreement between the State and the
Corps ast to those waters for which each has
primary permitting responsibility, there will be
needless duplication of administrative" effort,
wasting scarce resources and burdening the
public with uncertainties in applying for permits
and delays in the processing of permit applications.
Comments are solicited.

    12.  Assurance of continued coordination of
State 404 with Federal  and State statutes §123.82.
It is possible that section 404(h)(l)(H) of the

-------
                         25

Clean Water Act which requires "continued coordi-
nation with Federal and Federal-State water
related planning and review processes" may
require that States ensure compliance with some
or all of the statutes and executive orders
listed in the Corps regulations.  Comments are
solicited.

    13.  Revision of existing State NPDES programs
§123.5(c) and §123.101 - 103.
Under the proposed regulations,  revision of
existing State NPDES programs would be required,
if necessary, to conform to the Clean Water Act
Amendments of 1977 and other requirements in
these regulations (e.g. the listing of permits
for which EPA may not waive review).

    14.  Permit support documents:  fact sheets
and administrative record §124.43, .44, .63, and  .64.
Under the proposed regulations,  a fact sheet
describing the legal, technical  and policy basis
for permit terms and conditions would be required
for each permit, and all permit determinations
would be required to be based upon a defined
administrative record under the supervision of a
designated Record Clerk.  Currently these permit
support documents may not be prepared or may be
prepared in different form in both NPDES States
and EPA Regions.  Will these documents facilitate
the participation by interested persons in the
formulation of proposed permits?

        15.  Obligation to raise issues and
factual grounds prior to an evidentiary hearing
§124.53 and .76.
Under the proposed regulations,  new issues and
factual grounds not raised during the public
comment period could be raised in an evidentiary
hearing only where good cause was shown.  This is
to avoid unnecessary delays in final permit
issuance.  Although public interest groups are

-------
                         26

not always equipped to participate in permit
proceedings at an early stage,  the "good cause"
exception may be interpreted more stringently
in the case of the permit applicant than for
public interest groups, to compensate for this
disparity in relative access to information.

        16.  Criteria for fundamentally different
factors variances§125.25 - .27.
For the first time in regulations factors which
may be considered fundamentally different from
those used in the development of an effluent
limitations guideline are set forth.   One or more
of these factors may justify the granting of a
variance from guideline limitations.   Comments on
these factors are requested.
                 Permits Division
                 Office of Water Enforcement
                 Environmental  Protection Agency

-------