5559
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                             WASHINGTON.  D.C.  20-160           '
                                SEP   1 1973
    MEMORANDUM

    TO:

    FROM:
                                                            OFFICE OF ENrORCL.MEilT
Addressees (Attached)

Jeffrey G. Miller,. Deputy Assistant Administrator for
Water Enforcement (EN-335)

Swep T. Davis, Deputy Assistant Administrator for
Water Planning and Standards (WH-551)

Stephen Plehn, Deputy Assistant Administrator for
Solid Waste (WH-562)               '
     SUBJECT:   Request  for  Comments  on  "NPDES  Permits  for  Solid  Waste
               Disposal  Facilities  in Waters of the United States"
          Attached  is  a  draft  (dated August 23, '1978)  Policy  Guidance
     Memorandum on  the above captioned matter.   We would appreciate your
     written comments  on the draft memorandum and ask  that you. provide any
     comments by S6£tc;".Brn45-;  1978.
          Please send comments  to:

               Tom Tomasello
               Permits Division,  Office of Water Enforcement (EN-336)
               Environmental Protection Agency
               401  M Street, SW
               Washington,  DC   20460
       Jeffrey G. Miller
                          *•!  Stephen Plehn
     Attachment

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Addressees:

Directors of Approved NPDES
  Permit Programs
Enforcement  Division Directors,
  Regions I  - X
Permit Branch Chiefs,
  Regions I  - X
Alan Eckert, OGC
Lee DeHihns, OGC
LiDby Dollard, National  Solid Waste
  Management Association
Steve Schroeder, Natural Resources
  Defense Council
William Hedeman, U. S. Army Corps
  of Engineers
Curtis Clark, U.S. Army Corps of
  Engineers

Dennis Huebner, Region  I
Russel1 Wilder, Region  I
A. Miller, Region  II
Michael Debonis, Region II.
C. Howard, Region  111
William Schremp, Region III
J. Humphries, Region  III
Randy Pompom'o, Region  III
M. Polensky, Region  III
George Penc, Region  III
E. T. Heinen, Region  IV
Karl  Klepitsch,  Region  Y
E.. Shannon,  Region  V        .
Peter Dunsavage, Region VI
Bill  Hathaway,  Region VI
f-icrris Tucker,  Region VII
Lawrence  Gazda,  Region  VIII
Dale  Vondenahl,  Region  VIII
Charles  Bourns,  Region  IX
Tobia  Hegaahl,  Region X
Ronald Lee,  Region X

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MEMORANDUM •            .

TO:       Regional Administrators           •     •
          NPDES State Directors                         . -
                                                       AUG 2
FROM:     Deputy Assistant Administrator  for .Water
            Enforcement (EN-335)   .
          Deputy Assistant Administrator  for Solid Waste (WH-562)
          Deputy Assistant Administrator  for'Water Planning
            and Standards  (WH-551)

SUBJECT:  NPDES Permits for Solid Waste Disposal  Facilities
          in Waters of the United States  -  POLICY GUIDANCE
          MEMORANDUM                             •   ,
I.   INTRODUCTION


     Questions  have  been  asked  regarding  the  applicability  of  the

National  Pollution  Discharge  Elimination  System ("NPDES") program

to discharges  of  solid  wastes into waters of  the United States,

particularly wetlands.   In response to requests from EPA Regions
          *                  •                       L
and  potential  permittees  for  guidance, this memorandum provides

policy  on ,the  applicability of  the NPDES  program to these types

of discharges  and the•criteria, and procedures' for. the issuance of'

such permits.   Although the discharge of  any solid waste into

waters  of the  United States requires  an NPDES permit, this

guidance is limited to solid waste disposal facilities located in

waters  of the  U.  S. which receive wastes from sources such as

 trucks, barges, or other  transportation  vehicles.  The guidance

 applies principally to those water'areas most .easily  converted  to
          »               .               .
 solid waste disposal facilities,  such as wetlands  and  tidal areas

 including unvegetated coastal mud  flats.                        .


       The thrust of  the  policy  expressed in  this  guidance  is  that
      /~,......I      -.                       •.                .
 the discharge  of solid wastes  into water is  subject  to the NPDES

 requirements'of  section  402 .of  the Clean Water Act. ("CV.:A") and  •

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                   ...                               AUG.2 3 137* ...  .
should not be permitted where there are practicable alternatives

which: 1) dp not involve a discharge  into water; or 2)  could be

conducted in a manner  less damaging to  the  affected aquatic

ecosystem.  Appendix "A" provides  the definition of certain

terms used in this memorandum.           .           .       .



     This policy is consistent  with the principles contained in

EPA1s Wetlands Policy  (38  Fed.  Reg. 10834,  May 2,  1973),  Executive

Order 11990 providing  for  the  protection of wetlands  (42  .Fed.

Reg. 26901, May  24, 1977),  and  EPA's  proposed classification

criteria for  solid waste  disposal facilities under section 4004

of  the  Resource  Conservation and Recovery  Act and  section 405 of

the Clean Water  Act  (43 Fed. Reg., 4953, February  '6,  1978}..-



II.  NPDES  APPLICABILITY



    •  There  appears to be  overlapping authorities  under sections

 402 and 404  of  the Gt'A to control the discharge of solid waste.

 EPA and approved NPDES States  have authority  to issue  NPDES

 permits under section 402,  and  the U.S. Army  Corps of  Engineers

 and approved 404 States have authority  to  issue permits to

 control .solid waste disposal under section 404.   EPA has.on


 several occasions recognized the  authority to regulate the

 discharge of solid waste  under the NPDES program.I/    Corps
 I/  Appendix  "B"  contains  a brief discussion of  EPA and Corps'
 ~~      jurisdiction  to  control the discharge of solid waste under
        sections  402  and  404.

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                • .    . .     .                            AUG 2 3 1ST?




reculations, however, exclude from the defnition of fill



material "any pollutant discharged into the water primarily to.



dispose of waste", explaining that such discharges are to be



regulated through NPDES permits.  It  is the Corps' position      !



that the placement of solid waste in  waters has  as a, primary



purpose, the disposal of waste  and thus is subject only  to



NPDES.  EPA will initiate  discussions with the Corps.'  to modify



their position so that, where solid waste  is  disposed  at a  site



resulting in the filling of  an  area of  the waters of  the. United



States, a Corps' 404 permit  as  well as  an  N.PDES  permit will  be



required for the.entire discharge.  In  other  words  such  a



discharge would have a  dual  purpose '(disposal and  fill)  requiring



both  an NPDES, and  404  permit.   Until' this issue is  resolved,



EPA  and  approved  NPDES.States  have  the  authority and  responsi-



bility  to control  the  discharge of  solid  waste under section



402  of  the  CViA.                                       °





      A.  Who Must Apply?                  '.         .





          Under the definition of "point source" solid waste



 collection  and transport vehicles, which discharge of  solid



 waste into  waters might be considered "dischargers" subject to



 NPDES requirements.  Logically, however,  the solid waste



 disposal facility (see Appendix "A"  definitions) not  the



 collection and tranport vehicles should be required  to  comply



 with the- NPDES requirements.   Thus,  the owner or-operator  of s.

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                                                   ,<
                                                       '  AUG  2 3 1978

new or existing solid waste facility must  apply  for an NPDES
permit. New facilities must apply  for  and be  issued  an NPDES


permit before receiving any solid  waste  for disposal into


waters of the United States.




     B.  How To Apply?                                      .
                                                     *


         Owners and operators  of  solid wastes facilities shall


file applications  for NPDES permits  with the  appropriate EPA


Regional Office or the  approved NPDES  State.   Applicants should


use the  relevant portions  of NPDES permit application Short Form


B  (agriculture).   Under the  authority  of 40  CFR .§§124 . 23- and'.'


125.13  the  following  additional information should be provided


with  the  application  in order that the discharge may be completely


and accurately  evaluated:                                          :




      1. .  a  factual statement  of  .whether the facility is a new


          or  existing facility;




      2..  a  description of. the  applicability  of .any  State, .


          local,  or regional solid waste or water quality


          management plans, including  any plans  approved


          under section 4007 of the  Resource  Conservation  and


         ' Recovery Act  (RCRA)  or  section  208  of  the  CV7A,  to    .


          the facility  and its  consistency with  these.plans;




      3.  copies of all applicable State and  local permits


          and licenses  obtained for  the  facility,  a  list of


          those required but  not  obtained (including the current


          status of the permit "application),  'and.a statement-


          that no  other such  oermitr: or  licenses .?. re re

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4.   a description of ' the types and estimated quantities

    of waste known to have been received by the facility

    in the past, presently being received  in the case

    of existing facilities, and wastes anticipated to

    be received during the term of the permit  bhis    .

    description shall include the  frequency and duration

    of the discharge.  Particular  reference shall be

    made  to any toxic pollutants  identified by EPA

    under section  307  (a)(l)of  the CWA,  any hazardous

    substances  identified  under section  311 .of the CWA,

    and any wastes- considered hazardous  under  Subtitle  C

    of. the RCRA;         .           •


 5.  a  brief description  of those  specific  areas of  the

     facility  and  adjacent  and  nearby waters  where the flow

     and circulation of  waters  of  the United  States•may.be

     impaired  or their .reach reduced (including any  areas

     to be dewatered) during the term of.the permit.


 6.   a description of any ad ve rse. environmental, or    '. "..

     health effects which the owner or operator has
    *                                        .
     .reason to know are or will be related to  the .

     operation of the facility, including  those based on

    .any physical, chemical or biological  data and

     information available  (including  fish kills), etc.;


 7.  a description of technologies and management

     practices which  the applicant proposes  to employ  to

     minimize adverse impacts on  the  physical, chemical,

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                                                       ;  AUG 23 19'3


        and biological integrity of waters adjacent to. and


        nearby the facility, during operation of  the  facility


        and similar practices which will be  implemented  to


        minimize these impacts upon "close-down"  of the
                                                   •           '  .

        faciity;



    8.  for new  facilities,  an alternatives  study which


        investigates  the  availability  of practicable  alternative


        disposal sites  (including  those which  would  not


        involve  a  discharge  into water) and  alternative  .


        methods  of disposal.(including, "improved tehnol'og ical '


        controls over the generation  and  migration of leachate);



    9.  for  new  facilities,  the  permit issuers may re.cuire the  '.


        applicant  to perform algal or biological assay  tests


        on adjacent and nearby waters  to assist-  in establishing


        permit terms and conditions;  and    .    .  -



    10.   a  "close-down" date if appropriate, indicating  how


         long the  facility will  receive solid waste.     • .



        *                            -            -
III.  Permit Issuance and Denial



     A.   Mew Facilities        .        .  .'  '            :     '      •



     Only under  extraordinary circumstances  should an NPDES


permit be issued authorizing a new  discharge of solid waste


into waters of the United States.   Thus permits for

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                                                  A I/I;- P -i f07o    • .
new facilities may be issued only upon such a showing.  A

finding that extraordinary circumstances exists  can  be made  by

a NPDES permitting authority only upon determination that:  1)

there are no practicable alternative  sites which would not
                                                    »
involve a discharge  into water;  and  2)  where there  are no -

available alternative sites  that the  facility will employ

all practicable measures and management practices to protect

and minimize potential  harm  to  the  affected  aquatic  ecosystem.

These determinations .must  be based.upon  the  results  of alterna-

tives studies  required  by  the  permit issuing  authority in  the

application  or the  permit  as provided in. sections II,  .IV  •

and V of  the Memorandum'.'                •  .


      Since  effluent limitations guidelines controlling the

discharge of solid  waste  have  not  been issued under sections 301

 and. 304  of  the CV.'A,  the decision whether to issue of deny a  •

 permit  and the permit requirements imposed must be  decided on. a

 case-by-case basis under the authority of section 402(a)(l).

 In making these decisions the permit issuer must consider

 the appropriate factors listed  in section 304(b)(1)(B).  One of
         •                              •    •                 ,
 these factors is "other factors as  ... demmed appropriate."'

 In the case of solid waste  facilities the alternatives study is

 an essential  element in any permit  issuance decision  and  is  an

 appropriate factor  warranting  consideration under section

 304(b)(1)(B).  Thus, the  permit issuer must consider  the  '

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                                      .                .  AUG 2:3 i
alternatives study in assessing the technology applicable to

the discharge.  If reasonable alternative sites exist which


would not result in a discharge into waters of the U.S. a


zero discharge limitation would apply and the application for a

permit for the new facility must be denied.  If, however, there


are no alternativ^ sites available with a zero discharge


potential and a permit  is issued,  it should be issued  for the


site with the least potential for  adverse environmental  impact

as determined by  the  alternative studies.



     Solid waste  is not.susceptible  to  the  same kinds  of
                                           ., '--•        .   .
treatment technology  traditionally applicat-io-n—to  industrial

effluent waste  streams. We  are  not  dealing with .a waste stream


that can be  treated to  reduce  the  amount  of pollution  entering


waters  of the U.S.  A decision  to  allow a discharge of solid.


waste  would  have  an  irreversible adverse  effect on waters


of  the U.S.  i.e., the elimination  of these water.   Apparently


the  only  technology  available  to control  the  impact-of the


discharge  of solid waste (i.e.,  the elimination of areas of


waters of  the U.S.). is to prevent the discharge or to reduce .


 its  quantity.  The decision whether to allow the discharge


 depends pn  the  availability of feasible alternatives which is


 dete.rmined  through the alternatives study.  The determination


 of zero discharge for  a solid waste facility is similar  to the

 zero discharge requirements imposed on industry (i.e. where


 total recycle of effluent is the  technology applied).


 B.  Existing Facilities               ••                   .

     Interim and  final  NPDES permits may  be issued  to  existing


 facilities  as-follows:         •'         .

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     (1)  Interim permits shall.require an alternatives study
                            A.      .               •
and shall be issued to existing facilities where' the discharge

of solid waste at the facility has not completely or- substantially
                                   * •      -        .     •.
converted waters of the U.S. within-the disposal site  into a
                                                    *
dry area.  The permit shall  authorize  the discharge only  into

those areas already converted or  substantially  converted  into

dry areas and shall not authorize  any  further encroachment into

waters of the U.S.  The interim permit shall expire 180 days
                   •                                  '           i
after submission of the final alternatives  study cs required  in

the interim permit. This  interim  permit  mechanism  allows

existing  facilities to  continue  to discharge  solid  waste

pending  the results of  the  alternatives-study;


      {2}  Final  permits may be  issued  to existing  facilities:


        o without  requiring an  alternatives study  where.

           the  discharge of  solid  waste.at the  facility

           has  completely  or substantially converted

           waters of  the U.S. .into, a dry -area.   2_'/The  final
 2/  These areas which are waters of the U.S. and have been

       converted into dry areas remain waters of the U.S.

       subject to the CWA.  Dischargers discharging  into  these

       areas must apply for an NPDES permit.  Under . un-usual

       circumstances  (i.e., where these .areas are filled  .after

       the date of this memorandum without  a permit) restoration

       of the area may be re.luirec. .

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                                                            •  »\
          permit  shall  not authorize any discharge of   ^ 2 3 1973

          solid waste into waters of the U.S.  other than

          into  those which have already been converted or.
          substantially converted into a dry area.

       o  at the  expiration of an interim permit whejre ,

          the results of the alternatives study indicates

          that  there are no practicable alternative
          discharge sites.                .

     Final pernits for.the continued discharge at  existing  .

facilities where water areas of  the U.S. have.not  been substan-
tially filled shall be denied  if  the alternatives  study' required •
in the interim permit demonstrates  the  ex.i stence-. of . an  alternative.

site.  The authority and  rationale  to  deny  issuance  of.a  final
permit based on  the  alternatives  study  is the.same as that:  set

out  for "new facilities"  above.

     Final permits  (for  both  new/existing facilities) shall

expire  five  years  from  issuance  or  on  the  "close-down"- date

reported  in  the  application,  whichever is earliest.   However,

permits of  even  shorter  duration may  be issued on the basis of

the  alternatives study if the study indicates that the facility

may  be  phased  out  before the  "close-down"  date.   The permit

issuer  may  establish an expiration date extending beyond

the  "close-down" date  as appropriate to impose monitoring

and  inspection requirements at the .facility to ensure that

leachate  or other pollutants will not  enter waters of the

U.S.following  close-down.                           •           •

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                                                    o u fr-Q M
                                                    *•* *** *V ul 4J
                                                         ™".^^

                                       •.                 • ^UG 2 •? 1070
     Appendix  "C"  provides a schemative flow diagram of the*"'  .


 above  permit issuance and denial discussion.     ,            •




 IV.  Permit Terms  and Conditions                       •




     While the procedures for processing solid waste facility


 permits will not vary appreciably from other NPDES permits,


 their  content might be substantially different.^/   This is


 due to the fact that the appropriate, permit controls are not


.traditional "end-of-pipe" effluent  limitations;  instead, the


 .appropriate controls are specific management practices imposed


 under  section 402(a)(l) of  the  CWA  which are designed  to reduce


 adverse impacts upon the adjacent and  nearby aquatic  ecosystem


 if the discharge  is  authorized.




      The  utilization of  such  management  practices  when.effluent


 ]imitations are infeasible  has  recently  been  sanctioned  by the


 District  of Columbia Circuit  Court  of Appeals. [NRDC v.  Costle


 	 F  2d 	,  10 ERC  2025  (D.C.  Cir. 1977)].  Moreover,  there  is


 authority under sections  304(e) and 402(a)(l)  of the  CwA to


  impose  BMP's  where the discharge of'so3id  waste'may contribute


  significant amounts  of toxic  or hazardous  pollutants as defined


  under section 307(a)(l)  or 311  of  the CVJA.
  3_/  However,  the traditional NPDES approach of specifying


        end-of-pipe treatment is still appropriate  in certain


        cases for example where leachate  is  channelized and.


        collected and ultimately discharged.

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                                                   AUG 2J5 .IS'TS"'
     Because of the nature of these management practices, EPA

permit writers should work closely with  the Office of  Solid

Waste as well as Regional 404 permit  reviewers in devising

permit terms and conditions, particularly  those designed to
                                                    %
ensure adequate control  and  treatment of leachate.  Similarly,

permit writers in  approved States  should contact  appropriate

State or Federal agencies  involved  in solid waste management or

the  regulation of  discharges of  dredged  or fill  material.



     Although  specific  permit  conditions will vary  depending

upon the characteristics and location of the  facility, permits

for  solid  waste  facilities  must incorporate the  following:



      1.   for all  permits:

          a.   specific boundary limits on the area into which

          the discharge is authorized; the  amount of solid

          waste which c^n be discharged;  and permissible

          elevations of the disposal  area  (including the use cf

          compaction).  Conditions requiring  the construction  of

          dikes,  levtes and other' techniques,where required, to •

         . minimize  incursions into waters  of  the United  States.

           (It is important to note  that  section 404 permits are

           required  for  the construction  of  these  dikes,  levees,  etc.)



           b.  requirements for  appropriate control  technologies

           and management practices  which apply during  operation

         .  and  upon "close-down"  of  the facility  which will,  to

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r.
                                                        i'       i       -
                                                        ^y%/%r a?
                                                           •AU.G 23 1373
             the maximum extent practicable, minimize potential



             adverse impacts upon adjacent or nearby waters,



             particularly those impacts resulting from leachate



             generation and migration.  The required control

                                                       «

             technologies and management practices may include •



             constructing drainage control structures., maintainance



             of  adequate soil cover, minimization of the active



             working face of the  facility, prevention of contact of



             discharged waste with ground water, means necessary to



             prevent toxic  and  hazardous substances  from entering



             the environment outside  of the disposal  site, 'employment



             of  impermeable barriers  or collection  ditches and



             treatment of  collected  leachate;





             c.   terms and. conditions necessary  to  ensure  compliance



             with any  appropriate requirements  of  sections 307



              (toxic pollutants) 311  (hazardous  substances),  and  405 -"



              (sewage sludge)  of the  CVJA;





              d.   provisions for adequate  monitoring record-



             . keeping,  and  reporting on the wastes being discharged



              including the amount of waste discharged;





             .e.  to the extent that the disposal area falls        .



              within the waters defined in section 403 of



              the CV;A ,  compliance with guidelines issued under



              Section  403(c) of the CWA; and

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                          1-',     -  •  •  •

                                          *    ;":       _.-_.„.
   f.  where  appropriate,  a  requirement  of  periodic       "   ''


   bioassay and/or  algal 'assay  tests  on  the solid


   waste  and  leachate  (where collected  and  treated) and


   on  the receiving waters to assist  in  determining


   whether the  management practices and  conditions


   specified  in the permit remain adequate  to minimize
                                              *

   adverse water quality  effects.  Sampling from wells


   may be required  to detect ground w.ater. contamination


    particularly where this contamination may effect


    surface waters.



2.   for interim permits:'   .         .


    a.   a condition  that the applicant will undertake  a


    study of  practicable alternative  disposal sites   .


    (including  those which would  not  involve  a discharge  •


    into  water)  and  alternative methods  of  disposal


    (including  improved technological controls over the


    generation  and  migration of  leachate),  which will form


    the basis for the  issuance  of any NPDES permit after


    •the expiration  of  the  interim permit.




     b.  a compliance schedule for preparation of. an


   .  alternatives study including:  a) a  date for .  '.


     submission  of  a draft alternatives  study, which


     should be as soon as  practicable., but generally not


     later than  one  year from the date of issuance  of


     the  interim permit; and b)  a date for submission of


     the  final alternatives study, which should  allow up


     to six months  to revise the  study in response  to


     comments from  the permit issuing authority.

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                                            :    •           AUG 23 1973



          c.   a  condition that the interim permit  will not



          extend more than 180 days after the date established



          in  the compliance schedule for the submission of the



          final  alternatives study, and in no case later' than



          July 1, 1981.



      3.   for final permits:




          a reasonable compliance schedule towards implementa-



          tion of the best management practices and control



          requirements required in the permit.



'v-   Alternatives Study



      The alternatives study  in the permit application for new



 facilities and  in interim permits for existing facilities is



 essential to fulfilling  the  objective of  eliminating  the



 disposal of  solid waste  in waters.   In  addition  to describing



 alternative  sites and. methods of  disposal,  the study  must:  1)



 assess  the effects  on water  quality  of  each  alternative;  2)



 assess  the technical and economic feasibility of each alternative;



 3) compare the  relative water quality  impact and feasibility



 of the  al te-ma t ives; and 4)  determine which  feasible alternative



 (alone  or in combination)  will  most  effectively  minimize



 anticipated  impacts upon waters  of  the U.S.; and 5)  for existing




 facilities  issued interim permits,  consider the  impact that



 solid waste  disposal has had on waters of the U. S.  within  the



 existng disposal site.   Determinations of the economic feasibility



 of alternatives shall  be based  on the total cost of  solid waste



 management (including  the cost of solid waste collection and



  transportation), not merely on the costs associated  with



  cisoosal.                    .                    •       .    .

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                               16                       'AUG.2 3 1978



     The study must be a  realistic  appraisal  of  alternatives.

For example, where a significant portion  of  an  entire  region  is

composed of wetlands, such  as  southern  Louisiana,  the  alternatives

study should focus on the relative  merits of  alternative  sites

and methods of disposal  in  water, with  a  view toward determining:

the least damaging alternative in  terms of water quality  impact.

Also, the study  shall not be  limited  to areas under the present

ownership of  the applicant  or the  permittee but include all

'reasonable  alternative  areas.


     Generally,  the  study should  be made on a permit-by-permit

basis.  However,  in  unusual  areas  where there may be many permittees

and/or  permit  applicants in a geographic .area the permit issuing

•authority may  authorize the preparation of an "areawide alternatives

study".  This  study,  which may be prepared by an appropriate

 regional planning commission, must cover  the act ivi tie's .of

permittees  and permit applicants in a  designated geographic area,

with  the express agreement of those permittees  and applicants and

 the  concurrence of the permit issuing  authority in the area so

 desianated.
 Jeffrey G. Miller    .                 Stephen  Piehn
 Deputy Assistant Administrator,       Deputy Assistant  Administrator
 Office of Water Enforcement         •  Office of  Solid Waste
 Swep T. Davis
 Deoutv Assistant Administrator
   ^   »•
 Office of Water, Planning  and Standards

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                            APPENDIX  "S"                   A,,
                            	                  AUG 2 3 1378
      Both  EPA and the  U.S.  Army Corps of Engineers  have recognized


 the  authority to regulate discharges of solid waste into waters


 of  the United States under section 402 of the Clean Water Act.

 A February 9, 1977,  letter from EPA's General Counsel noted


 that such  discharges were unlawful unless authorized by an


 NPDES permit.  A March 7, 1977, letter from the Deputy Director


 of the Corps' Civil Works Division agreed that the discharge of


 solid waste  into water of the United States, including wetlands,

' is subject to the Clean Water Act.  The  letter also stated that

 while an NPDES permit would be  required  for s'uch a discharge a


 section 404  permit would also  be  required if  it is necessary to


 construct a  levee or  other containment  structure to  restrain


 the wastes from  entering surrounding  aquatic  areas. The  letter


 further declared that the Corps would  not issue a  404  permit


 for  such  a levee or containment structure.until the  applicable


 N?D£S  permit was issued.



       Based on these letters  the Deputy Assistant Administrator


  for Water Enforcement issued a guidance memorandum on July


  11,  1977  indicating that the disposal of solid waste such as


  garbage'into wetlands or other waters of the United States


  is  an unlawful discharge of  pollutants unless permitted under


  section  402  or the Clean Water Act.



       Corps  regulations issued  on July  19, 1977, eliminated from


  the definition of fill material subject to section 404 permit

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requirements those "pollutant(s) discharged  into  the water

                                                          *
primarily to dispose of waste," explaining that such pollutants


were to be regulated through NPDES permits (33  CFR  323.2(m)J.


The preamble accomoanying the. Corps' regulations  noted  that-'Che

                                                          :-'":'^-'-
disposal of waste materials, such as sludge,  garbage,  trash,  '••


and debris in water was better controlled  through NPDES permits,


even though the  final  result of the discharge might  be  a


filling of an area of  the waters of the  United States  (42 Fed.


Reg. 37130, July 19, 1977).



     Most recently, on February 6, 1978, EPA proposed  regula-


tions specifying minimum criteria for  the  classification of


solid waste disposal facilities under  sections 1008(a)(3) and


'4004 (a) of the Resource Conservation and Recovery Act  and


section 405(c) of  the  Clean Water Act.   Section 257.3-1(2)  cf


these regulations  would classify solid waste facilities in


.wetlands as "open  dumps" unless an NPDES permit was  obtained


(43 Fed. Reg, 4953, February 6, 1978).   These regulations would


also establish a strong presumption against  the  issuance of an •


NPDES permit  unless:   1) the discharge is  justified  in light  of


other practicable  alternatives; and 2)  the permit assures  that


the facility -will  utilize  all practicable  technologies and/or


best management  practices  to minimize  adverse effects  on the


aquatic ecosystem.

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     memorandum;  (2) a  facility  for which  the owner or



     operator cannot demonstrate to the  satisfaction of



     the NPDES permitting  authority that a substantial



     commitment has been made  to solid waste disposal



     before  the date of this memorandum  or (3)  any



     expansion  of an existing  facility  after  the  date



     of  issuance  of  this memorandum  into waters of  the



     U.S.  where  these  waters have not been converted



     or  substantially  converted into  dry land  as  part  of



      the operation of  the  existing facility.





(d)   "Solid waste" means any garbage,  trash, sludge from



     waste treatment plants, water supply  treatment



      plants, or air pollution control facilities, and



      other discarded material,  including  solid, liquid,



      semisolid, or contained gaseous material resulting



      from industrial,   commercial, mining  or agricultural



      operations, or other  community  activities which



      constitutes a discharge of pollutants that would not



      be adequately controlled  through conventional NPDES
   •


      "end-of-pipe" treatment  technology.





 (e)  "Waters of the United  States"  includes, but  is not



      limited to:





       (1)  The  territorial  seas;

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(2)   All waters which are presently used, or


     were used in the past, or may be susceptible to


     use in interstate or foreign commerce, including


     all waters which are subject to the ebb and
                                         *

     flow of the tide, intermittent streams, and'


     adjacent wetlands.




(3)  Tributaries of navigable waters of  the United


     States, including adjacent wetlands;




(4)  Interstate waters,  including adjacent  wetlands;


     and




(5)  All other waters  of the  United  States  such  as


     intrastate  lakes, rivers,  streams,  mudflats,


     sancflats  and  wetlands,  the  use,  degradation


     or destruction of which  would  effect  or


     could affect  interstate  commerce  including,  but


     not limited to:




      (i)   Intrastate lakes,  rivers,  streams,  and.


           wetlands which are  or could be used by


           interstate travelers for recreational or


           other purposes; and




     (ii)  Intrastate  lakes, rivers, streams, and


           wetlands from which fish or shellfish


           are or could  be taken and sold  in  interstate


           commero.-; and

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         (iii)   Intrastate  lakes,  rivers,  streams,  and



                wetlands  which  are or could be utilized


                for  industrial  purposes by industries  in
                                               «

                interstate  commerce;  and




      (6)   All  impoundments of  water otherwise defined  as



           waters of the  United States under this definition.




(f)   "Wetlands" means those areas that are inundated or



      saturated by surface or ground waters at a frequency


      and duration sufficient to  support,  and  under.



      normal circumstances do or  would support a prevalence


      of vegetation typically adapted  for  life in  saturated


      or seasonally saturated soil, ccr.ci tions.  Wetlands



      generally  include  swamps, marshes,  bogs, and  similar


      areas such as sloughs, potholes, wet meadows,



      river overflows, mudflats,  and natural  ponds.

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                                                    Al'PF.NDiX  "<;
                                           PEIIMIT DECISION MAKlliC  PROCESS
Lr
.-I
            |
             NEW  FACILITY
           (Tlie Applicant must
           (provide an alternatives
           (study as part of its
           (permit application	
                     1
           (If the Alternatives  |
           (Study demonstrates   |
           (that;	j
                     1
 |A1ternat ive
 (Sites  arc
' (available
 (the permit
 (application
 (shall  be
 (denied	
(Alternative
(Sites are not
(available the
(permit may be
(issued with
(appropriate
(conditions
                                          (IF Tin: i)i.r>ci!A!!i;i: OR  |
                                          (PROPOSED DISCHARGE   j
                                          (IS INTO A:	(
                                         	1	1_
                                              | EXI STING  FACILITY
                                              I  WHICH:	
                                                 Jllan mibs t:mt lal ly or  (
                                                 (Completely converted  |
                                                 (water of lh«! U.S.     |
                                                 [into dry _a reas	|
                                                          I
                                                	I	
                                                                                           1
                                                           (lias  not  substantially   |
                                                           (or completely  converted (
                                                           (waters of  the  U.S.  into |
                                                           (dry  areas	|
                                                                       I
                                                           	I	
(Iseue a final permit with
(appropriate conditions and
(not require an alternatives
(study.   The permit shall not
(authorize any discharge into
(waters  of the U.S. not
(already completely or aub-
Istantlally converted	
                                                                               (lusuu an  interim permit
                                                                               (requiring,  in  addition
                                                                               (to other  applicable
                                                                               (requirements,  an alterna-
                                                                               (tiven study based on  a
                                                                               (compliance  schedule in
                                                                               (the permit	
                                                                                 If  the alternatives study
                                                                                (demonstrates that:
                                                                          (Alternative |
                                                                          (Sites  are    [
                                                                          (available    |
                                                                          (the  final    j
                                                                          (permit  f)hall|
                                                                          I he- denied    |
                                                                                                    1
                                                                                            (Alternative
                                                                                            (Si teu are not
                                                                                            (available a
                                                                                            (final permit
                                                                                            (may be issued
                                                                                            (with
                                                                                            |/i|i|) rep r 1 H C e
                                                                                           JkjiiiiLLLLL! il!)	

-------