NPDE$ ADMINISTRATIVE
PROCEDURES MANUAL
Prepared for:
U.S. Environmental Protection Agency
Office of Water Enforcement
Washington, D.C.
Prepared by:
JRB Associates, Inc.
':'.; - ^, McLean, Va:
- arid
Richard C. Browne
Washington, D.C.
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CONTENTS
Page
FOREWORD viii
CHAPTER I. PART 124 IN PERSPECTIVE ' 1-1
OVERVIEW !-l
THE STATUTE 1-2
HISTORY OF NPDES REGULATIONS 1-3
SIGNIFICANT CHANGES IN PART 124 1-5
FREQUENTLY ASKED QUESTIONS 1-8
ADDITIONAL QUESTIONS 1-12
CHAPTER II. SUBPARTS A-C - APPLICABILITY, APPLICATION II-l
PROCESS, STATE CERTIFICATION
OVERVIEW II-l
DEFINITION OF THE SEVEN PROCEDURAL STAGES II-2
The Application Process II-2
State Certification II-2
Draft Permit or Denial II-2
Public Comment and Hearings • II-3
Final Permits II-3
Evidentiary Hearings or Nonadversary Hearings II-4
Appeal to the Administrator II-5
SEQUENCE OF THE APPLICATION PROCESS II-7
Application for Permit II-7
Special Provisions for Applications from New Sources II-8
Requests for Modification, Revocation and Reissuance, II-9
or Termination
Permits Required on Case-By-Case Basis 11-10
Procedure for Handling Application After Deciding 11-11
to Deny or Terminate
PROCEDURES ON STATE CERTIFICATION 11-12
Introduction 11-12
State Certification 11-12
Change in State Law 11-13
iii
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CONTENTS (CONTINUED)
Page
CHAPTER III. SUBPART D - PREPARATION OF A DRAFT PERMIT III-l
OVERVIEW III-l
CHAPTER IV. SUBPART E - PUBLIC NOTICE, COMMENT AND HEARINGS IV-1
OVERVIEW IV-1
METHODS FOR CIRCULATING NOTICE IV-2
PROCEDURES FOR THE COMMENT PERIOD AND PUBLIC HEARINGS IV-3
Public Comments and Hearings IV-3
Raising Objections and Providing Information IV-3
During Comment Period
Terms Requested by Corps of Engineers and IV-3
Other Governmental Agencies
Re-opening of Comment Period IV-4
CHAPTER V. SUBPART F - SPECIAL PROVISIONS FOR VARIANCES V-l
AND STATUTORY MODIFICATIONS
OVERVIEW V-l
GENERAL PROCEDURES FOR PROCESSING VARIANCES AND V-2
STATUTORY MODIFICATIONS
Application V-2
Effect on Permit V-3
Appeals V-4
SPECIAL PROCEDURES V-5
CHAPTER VI. SUBPART G - ISSUANCE AND EFFECTIVE DATE OF PERMIT VI-1
OVERVIEW VI-1
ADMINISTRATIVE RECORD FOR FINAL PERMIT VI-3
CHAPTER VII. SUBPART H - EVIDENTIARY HEARING PROCESS VII-1
OVERVIEW VII-1
PROCEDURES FOR INTERLOCUTORY APPEAL VII-3
EXPEDITING THE PROCESS VII-5
IV
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CONTENTS (CONTINUED)
CHAPTER VIII. SUBPART I - NONADVERSARY PROCEDURES
OVERVIEW
EXPEDITING THE PROCESS
Page
VIII-1
VIII-1
VIII-4
CHAPTER IX. GENERAL ISSUES
OVERVIEW
GENERAL PROVISIONS
Public Access to Information
Delegation of Authority; Time Limitations
Service
Settlements
General Permits
Grouping Parties
Production or Exchange of Documents and Data
Ex Parte Communications
New Sources
IX-1
IX-1
IX-3
IX-3
IX-4
IX-5
IX-5
IX-6
IX-8
IX-8
IX-8
IX-11
CHAPTER X. RESOURCE DOCUMENTS AND BIBLIOGRAPHY
OVERVIEW
TOPICAL INDEX TO DECISIONS OF THE GENERAL COUNSEL
AND THE NPDES REGULATIONS
BIBLIOGRAPHY
INDEX TO NPDES REGULATIONS
PARTS 122-125
X-l
X-l
X-2
X-8
X-ll
X-14
APPENDIX - DECISION LOGIC
OVERVIEW
A-l
A-l
INDEX
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LIST OF FIGURES
Figure Page
VI-1 Decision Logic to Determine "Uncontested Provisions" VI-6
Final Permit
VII-1 Subpart H - Evidentiary Hearing Procedures VII-29
A-l NPDES Permit Process A-2
A-2 Subpart H - Evidentiary Hearing Procedures A-3
A-3 Subpart I - Nonadversary Procedures for Initial A-4
Licensing
LIST OF TABLES
Table
VI-1 Enforceable Permit Provisions VI-7
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LIST OF FORMS
Page
Statement of Basis
Fact Sheet
Designation of Record Clerk
Administrative' Record for Draft Permit.
III-3
III-5
III-ll
111-12
Notice of Public Hearing
Public Notice of Draft Permit
Public Notice of Draft General Permit
IV-5
IV-8
IV-11
Administrative Record for Final Permit
Checklist of Documents to Include in Administrative Record
for Final Permit
VI-5
VI-8
Designation of Trial Staff and Decisional Body
RA's Order Granting/Denying Evidentiary Hearing and Notice
of Contested/Uncontested Conditions
Referral to Chief ALJ
Public Notice of Evidentiary Hearing
Proposed Prehearing Order
Order on Request for Intervention
Motion
Stipulation
VII-9
VII-10
VII-12
VII-13
VII-20
VII-24
VII-25
VII-27
?ublic Notice of Panel Hearings
RA's Order Granting Nonadversary Hearing
Designation of Trial Staff and Decisional Body
VIII-6
VIII-13
VIII-15
vii
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FOREWORD
This manual has been designed for use by attorneys, permit writers, and
regional hearing and record clerks in applying the procedures for NPDES permit
issuance and review as codified in'40 CFR 124. The manual is divided into 10
chapters and an appendix.
The first nine chapters track the individual Subparts contained in Part 124.
Chapter IX also contains miscellaneous provisions of the regulations that pertain
to more than one Subpart. Chapter X provides resources that will be helpful in
preparing draft and final permits, and in implementing both evidentiary and non-
adversary initial licensing hearing provisions.
Each chapter contains an overview of the Subpart being addressed. These
overviews summarize the critical elements of the Subparts. The remainder of
each chapter contains sample forms, checklists, and diagrams designed to expedite
your work in complying with the procedures in Part 124.
The appendix contains.a three-part decision logic diagram, which graphically
illustrates the steps of the entire NPDES process in a condensed manner for easy
reference.
An index has also been provided for easy reference to chapter materials.
Information particularly relevant to the attorneys, permit writers, and regional
hearing and record clerks has been indexed under the heading "Information."
viii
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CHAPTER I
PART 124 IN PERSPECTIVE
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CHAPTER I—PART 124 IN PERSPECTIVE
OVERVIEW
The National Pollutant Discharge Elimination System (NPDES) permit program
was established by the Federal Water Pollution Control Act Amendments of 1972.
The NPDES program is designed to protect the environment, specifically the Nation's
waters, from the effects of pollution. It does this by requiring a permit for all
owners or operators of point sources discharging pollutants into the Nation's waters.
The permit regulates the type and amount of pollutants that may be discharged.
The 1979 regulations extensively revise the former regulations governing
the NPDES permit program. This chapter will give an overview and a brief history
of the NPDES regulations. Significant changes in Part 124 of the regulations
dealing with the procedures for decisionmaking regarding NPDES permits are the
principal focus of this manual. A listing of frequently asked questions with
references to specific sections in the manual is also included. In addition, a
decision logic diagram for Part 124 decisions has been included in the appendix,
detailing relationships of persons involved, time schedules, and decisions.
The Environmental Protection Agency (EPA) has also proposed regulations that
would consolidate five of its permit programs. The five programs are the NPDES
permit program (Clean Water Act), Underground Injection Control (Safe Drinking
Water Act), Hazardous Waste Management (Resource Conservation and Recovery Act),
Prevention of Significant Deterioration (Clean Air Act), and the Dredge and Fill
program (Section 404, Clean Water Act). This chapter will briefly discuss the
anticipated impact of the proposed Consolidated Permit Regulations.
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THE STATUTE
The Federal Water Pollution Control Act Amendments of 1972 replaced the
Refuse Act permit program under which the Army Corps of Engineers regulated the
discharge of pollution into navigable waterways. The 1972 Amendments placed
responsibility for water pollution control with EPA and, for the first time,
created a Federal-State partnership for regulating water quality.
The Statute specifies the basic aspects of water pollution control require-
ments. EPA is to establish effluent limitations and performance standards for
various sources, limiting the amounts of pollutants that may be discharged.
Industrial sources were required to meet limitations reflecting best practicable
control technology (BPT) to control water pollution by July 1, 1977 and best
available control technology (BAT) by July 1, 1983. Publicly owned waste treat-
ment plants were to provide at least secondary treatment by July 1, 1977, and
best practicable wastewater technology by July 1, 1983. The Clean Water Act of
1977 has refined and adjusted BAT requirements, specifially with reference to
treatment for toxic chemicals and providing additional time to meet BAT require-
ments in some cases.
For new industrial plants, EPA is to issue new source performance standards
based on best available demonstrated control technology. If the guidelines and
performance standards are insufficient to achieve water quality standards or
other requirements of state law, additional, more stringent requirements may
be imposed. To ensure that effluent guidelines are met, a system to control
individual dischargers through permits was established.
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HISTORY OF NPDES REGULATIONS
In December 1972 and May 1973, the EPA promulgated regulations outlining
the NPDES program. The regulations for Hearings were promulgated in July of
1974. On August 21, 1978, the EPA proposed extensive revisions of the existing
regulations for the purposes of:
• Clarifying and improving existing'program regulations and
procedures in light of past experience;
i) Filling significant gaps in coverage under the existing regulations,
particularly in response to court decisions, and the emphasis on
controlling toxic and hazardous substances; and
« Making the regulatory changes which are necessary under the Clean
Water Act of 1977.
The final regulations were published on June 7, 1979, and revised the
proposed regulations based on the comments received during the subsequent
comment period. Under Title 40 of the Code of Federal Regulations (40 CFR),
the new regulations have been established in the following five Parts:
-Part 121- State Certification of Activities Requiring a "Federal
License or Permit
Establishes the procedures and requirements for State
certification of licenses or permits issued by Federal
agencies. (Unchanged from provisions formerly found in
40 CFR 123.)
-Part 122- National Pollution Discharge Elimination System
Specifies who must apply for permits; how permits are
issued; what terms and conditions must go into permits;
methods for revising or re-issuing permits; and other
basic program requirements.
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-Part 123- State Permit Program Requirements
Establishes guidelines for submitting an NPDES
permit program to the EPA and EPA's procedures
for reviewing and approving such programs.
-Part 124- Procedures for Decisionmaking Regarding National
Pollutant Discharge Elimination System
Provides the procedures for processing and issuing
NPDES permits.
-Part 125- Criteria and Standards for the National Pollutant
Discharge Elimination System
Establishes the criteria and standards which the EPA
and approved States apply in making certain permit
determinations which become the basis for the initial
permit terms and conditions or modifications.
A copy of the regulations, Parts 122 through 125, is provided in Chapter X
of this manual.
The proposed Consolidated Permit Regulations, published for comment on
June 14, 1979, incorporate Parts 122 through 124 of the NPDES regulations with
significant changes. The principal impact of the proposed Consolidated Regu-
lations upon NPDES decisionmaking procedures in Part 124 (if the regulations
are promulgated in a similar manner as proposed) will result in cases where
public, nonadversary, or evidentiary hearings are to be held on portions of
a consolidated permit that relate to programs other than NPDES. In these
cases, careful coordination of the differing elements of the permit will
be necessary to prevent delays.
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SIGNIFICANT CHANGES IN PART 124
In most cases, the general framework of the former regulations covering
procedures for making permit determinations has not been changed. However,
significant changes have been made in the following areas:
• The procedures for variances, modifications, and permit actions
other than the basic issuance of a permit
• The degree to which permit decisions are documented before an
evidentiary hearing begins
• The hearing procedures for "initial licensing"
• The relationship of prior administrative proceedings to any
evidentiary hearing.
The former regulations did not specify how modification requests, variance
applications, and other permit actions beyond the basic issuance of a permit
should be handled. The new regulations specify the procedures for such actions
and put them on the same procedural "track" as other permit applications.
The new regulations have also consolidated procedures for variances in a
single Subpart, whereas in the former regulations, they were scattered through
various Subparts of 40 Code of Federal Regulations. In addition, the new regu-
lations provide that variance applications should be submitted, whenever possible,
before the close of comments on a draft permit. This provision insures that there
will be an opportunity to consider all the relevant issues before the formulation
of the final permit terms, and that the issues will not be raised at a later
date for purposes of delay.
There has also been a significant change in the degree to which permit
decisions are documented before an evidentiary hearing. Under the new regulations,
the contents of fact sheets are expanded and specified in more detail to
assure that the explanation on how and why the Agency arrived at specific permit
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conditions is adequate. However, the final regulations did not go as far as the
proposed regulations, in that each permit need not be accompanied by a fact sheet.
The fact sheet requirement has been limited to major or controversial discharges,
as well as variances, modifications (such as Section 301(i) modifications), and
general permits.
The new regulations also provide that the draft and final permit terms
must be based on an administrative record, which could simply be an adequately
organized file drawer containing the relevant information. This provision
ensures that the information considered in drawing up a permit is identified
and publicly available for comment.
The Administrative Procedures Act (APA) allows decisions in cases involving
initial licensing to be made by procedures that are much less formal than strict
courtroom procedures. The new regulations use this provision of the APA to
implement nonadversary hearing procedures for initial licensing and for Section
30.1 (h) modified permits. Under the new procedures, a panel of EPA employees
(or if appropriate, the panel may include persons not employed by EPA) having
special expertise in areas related to hearing issues will be present at the
hearing and may question the parties. The proceeding will be subject to the
overall control of the Presiding Officer, usually an Administrative Law Judge
unless all parties waive their right to have an ALJ preside. Because of the
non-accusatory nature of the new panel hearings, there is an increased reliance
on fact-finding procedures other than cross-examination.
There has also been a significant change in the relationship of prior
administrative proceedings to any evidentiary hearing. So that the Presiding
Officer will know what happened regarding the permit before the hearing began
and so that he or she will have the benefit of the earlier stages of consider-
ation of the issues, the new regulations provide that the administrative record
on which the final permit was based will automatically be admitted into evidence
at any evidentiary hearing. In addition, no issue may be raised at an eviden-
tiary hearing if it was not first raised during the comment period on the draft
permit (including any public hearing period), unless good cause is shown for
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the failure to do so. The purpose of this provision is to encourage resolu-
tion of the issues at a less burdensome, less expensive, and more open stage
of the permit issuance process.
There have also been less extensive changes in the evidentiary hearing
procedures with respect to the cross-examination of EPA staff members, the
right of cross-examination, the ultimate burden of persuasion, and the sub-
mission of direct testimony.
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FREQUENTLY ASKED QUESTIONS
The following list of questions provides a "shopping list" of items that
are answered in this and subsequent chapter's of the manual. A blank sheet has
been provided at the end of these questions for you to note any other questions
which you may frequently need to answer.
1. What are the major changes in the new regulations?
Chapter 1
2. What procedures are to be followed if a request fo-r modification is denied?.
Chapter 2
3. What procedures are to be followed for permit denial or termination?
Chapter 2
4. What must be included in a state certification?
Chapter 2
5. Can the EPA modify a permit if a state changes its certification?
Chapter 2
6. What must be included in a draft permit?
Chapter 3
7. What are some of the common problems in preparing a draft permit?
Chapter 3
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8. When is a statement of basis prepared?
Chapter 3
9. When are fact sheets required?
Chapter 3
10. What must be included in a fact sheet?
Chapter 3
11. What are the methods for circulating public notice?
Chapter 4
12. What must be included in the various public notices?
Chapter 4
13. When may a public hearing be held?
Chapter 4
14. What may the Director do if substantial new questions concerning a
permit are raised during the comment period?
Chapter 4
15. For what types of discharge may a variance be obtained?
Chapter 5
16. Can a variance be obtained at any point in time by a permittee?
Chapter 5
17. What must be included in an application for a variance?
Chapter 5
18. What status does a permit have when the potential permittee is seeking
a variance?
Chapter 5
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19. For what reasons may a variance be granted?
Chapter 5
20. Who may grant a variance?
Chapter 5
21. When does a permit finally become effective?
Chapter 6
22. When only part of a permit is made the subject of a hearing, what effect
does the uncontested part have?
Chapter 6
23. What must be included in the administrative record for a final permit?
Chapter 6
24. What status does a permit have when it is contested pending a hearing?
Chapter 6
25. What status does a permit have when it is being appealed to the Administrator?
Chapter 6
26. What must be included in a request for an evidentiary hearing?
Chapter 7
27. What are some ways to expedite the evidentiary hearing process?
Chapter 7
28. What authority does the Presiding Officer have to control the hearing?
Chapter 7
29. When may the Presiding Officer certify an order or ruling for interlocutory
appeal?
Chapter 7
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30. What cases may proceed under the nonadversary procedures?
Chapter 8
31. What are some ways to expedite the nonadversary process?
Chapter 8
32. Is "separation of functions" followed in the nonadversary process?
Chapter 9
33. Is the exchange of documents and data permitted for evidentiary and
nonadversary hearings?
Chapter 9
34. When does a stipulation or consent agreement need EPA headquarters
approval?
Chapter 9
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ADDITIONAL QUESTIONS
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CHAPTER II
APPLICATION, STATE
CERTIFICATION
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CHAPTER II
SUBPARTS A-C — APPLICABILITY, APPLICATION
PROCESS, STATE CERTIFICATION
OVERVIEW
This chapter briefly summarizes and defines the seven procedural stages
of the permit decision and then, in greater detail, describes the requirements
for two of the stages: the application process and state certification
(Subparts B and C).
The procedures for processing and issuing NPDES permits are covered in
Part 124 of the new regulations. This Part organizes permit decisions into
seven stages.
The new regulations provide that a permit denial, modification,
revocation and reissuance, or termination will be subject to the same pro-
cedure of notice-and-comment and potential hearings as other permit actions.
The regulations allow the EPA to modify a permit during the permit
review process in response to changes in state certification resulting from a
court decision or changes in state law. The extent of modification will
depend on whether the modified certification is received prior to or after
final agency action.
A description of the essential elements of the procedures follows below.
For a complete analysis of the procedures, reference should be made to the
Subpart in question.
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DEFINITION OF THE SEVEN PROCEDURAL STAGES
1. The Application Process [Subpart B]
Any person who discharges pollutants into the waters of the
United States must have a permit. No permit other than a general
permit will be issued until the discharger has submitted a complete
application that complies with the filing requirements specified in
Part 124, Subpart B.
2. State Certification [Subpart C]
Section 401(a)(l) of the Clean Water Act prohibits the EPA
from issuing a permit until certification is granted or waived by
the state in which the discharge originates. Therefore, when
an application is received which does not include a state
certification (as is often the case), the EPA must forward the
application to the appropriate state. If certification is not received
by the time a draft permit is prepared, the EPA will send the state
another request that certification be granted or denied. Included
in this request will be notice to the state that its failure to
respond within a specified reasonable time, not to exceed 60 days,
will result in a waiver of the right to certify, rather than
denial of certification.
3. Draft Permit or Denial [Subpart D]
After receiving a properly submitted application and considering
all relevant data, the EPA must tentatively decide whether to issue
or deny a permit. If the EPA tentatively decides to issue a permit,
a draft permit will be prepared and will be made available for public
review. The draft permit will specify all the limitations, requirements,
and conditions to be placed on the discharges. The EPA must also
prepare either a fact sheet or a statement of basis explaining in simple
"language how each draft permit was prepared.
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4. Public Comment and Hearings [Subpart E or I]
The regulations require the EPA to notify the public
regarding permits and permit hearings. The public notice must
provide interested persons with a minimum of 30 days to comment
on the draft permit or 30 days notice before a hearing. A longer
comment period may always be provided.
The regulations allow public hearings to be held whenever there
is significant public interest. It should be noted, however, that in the
case of initial licensing, the public hearing is completely
discretionary (see Section 124.41(i)(1)).
Public participation in the NPDES permit decisionmaking process
takes on added significance under the new regulations. All
parties, including applicants, must now raise all objections and
submit all relevant evidence by the close of the public comment period
or at the public hearings on the draft permit. Parties can no longer
raise issues or present evidence for the first time at either an
evidentiary or a panel hearing, unless good cause for the failure
to do so earlier is shown.
5. Final Permits [Subpart G or I]
After the close of the public comment period, including any
public hearing period on a draft permit, the EPA will prepare and
issue a final permit. Public notice of this action will be served
on the applicant and interested parties. The notice will inform them
of their right to contest the permit by filing a request for an
evidentiary or panel hearing within 30 days. Uncontested terms and
conditions become effective 30 days after the date of such notice.
At the time the final permit is issued, the EPA will also
issue a response to the significant public comments received, which
will also indicate any provisions of the draft permit that have been
changed and the reasons for the change.
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6. Evidentiary Hearings or Nonadversary Hearings for Initial [Subpart H or I]
Licensing
An evidentiary hearing is available to challenge final
individual permits. The hearing is a formal proceeding under
the control of a Presiding Officer, an Administrative Law
Judge. The Presiding Officer may hold prehearing conferences
with the parties for the purposes of obtaining stipulations,
admissions, identifying matters not in issue, and those matters
in dispute. Time schedules may also be specified for the hearing
and for exchanging documents and data. The Presiding Officer
also has wide authority to examine witnesses, exclude or limit
evidence, and allow cross-examination on factual questions.
Following the hearing, the parties will be given an
opportunity to submit proposed findings of fact and conclusions.
The Presiding Officer will evaluate and review these, as well
as the record and any interlocutory decisions in preparing the
initial decision. The initial decision automatically will
become effective 30 days after service, unless a petition for
review is filed by a party, or the Administrator, on his own
motion, decides to review the decision.
Cases involving initial licensing, or other cases where all
the parties elect to do so, may proceed under the new, less formal
nonadversary procedure. A panel (usually of three or more EPA
employees with expert knowledge on the hearing issues but occasion-
ally including persons not employed by EPA) will be present at
the hearing and may question the parties, subject to the overall
control of the proceeding by a Presiding Officer. One purpose
of the new panel hearings is to avoid being "accusatory in form."
There will be increased reliance on fact gathering procedures
other than cross-examination.
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The primary purposes of the nonadversary panel hearing are to
obtain facts about why the permit is objectionable to the party
requesting the hearing, to receive evidence and/or testimony to
support suggested alternative conditions, and to aid the panel and
the Presiding Officer or Regional Administrator in preparing
a recommended decision. The panel, particularly the technical panel
members will probably ask the most questions of the witnesses.
Counsel for the parties and for the EPA staff (if Agency Trial Staff is
designated) will have a far less visible role in the proceedings,
compared with their role in formal evidentiary hearings.
Cross-examination is not likely to be necessary in most non-
adversary panel hearings because the panel and Presiding Officer
will have the authority to question each witness informally and to
satisfy themselves as to whether the record contains facts sufficient
to support the recommended decision to be prepared.
The emphasis in these proceedings will be on informality rather
than traditional courtroom or adjudicatory procedures.
The subject of the nonadversary hearings for cases involving
initial licensing will be the EPA's draft permit. A final permit
will not have been issued yet. In other cases, the hearings may be held
after a final permit has been issued. In addition, where EPA
grants or denies a variance such as a fundamentally different factors
variance, in an NPDES state, that variance decision would be subject
to an EPA nonadversary hearing (if properly requested). After the
hearing, the person named to prepare the decision (either the Presiding
Officer or the Regional Administrator) will prepare and file a
recommended decision. The recommended decision will become the final
decision of the EPA within 30 days after service, unless a petition for
review is filed by a party with the Administrator, or the Administrator
elects to review it.
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7. Appeal to the Administrator [124.101]
[124.125]
Any party or requester, as the case may be, will have 30 days
after service of an initial or recommended decision, or the denial
in whole or part of an evidentiary or panel hearing, to file a
notice of appeal and a petition for review with the Administrator.
The Administrator will then grant or deny the petition within a
reasonable time. If the Administrator decides to accept review,
the parties will be given the opportunity to file briefs in support
of their position. .
Within the 30 day period, the Administrator may also, on his
own motion, decide to review the decision or the denial of a
hearing. The Administrator will then notify the parties and
set up a briefing schedule.
On review, the Administrator may summarily affirm without
opinion, modify, set aside, or remand for further proceedings
the initial or recommended decision or the denial of an eviden-
tiary or panel hearing. This petition for review by the Adminis-
trator is a prerequisite for judicial review of the final
decision of the Administrator.
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SEQUENCE OF THE APPLICATION PROCESS [Subpart B]
Application for Permit [124.11]
Any person who discharges pollutants into the Nation's
waters must have a permit." However, certain sources are not
required to obtain an NPDES permit, i.e.:
• Irrigation return flows \-\22 41
• Vessels being used for transportation
• Discharges of dredged or fill material which are
regulated by Section 404 of the Clean Water Act
• Agriculture and silviculture operations producing
pollutants through runoff.
Other than general permits or permits otherwise initiated by
the EPA under §124.32, no NPDES permits will be issued until the
applicant has properly completed and submitted an appropriate
application form.
All permits will be issued for a fixed period of time, [122.12]
but not for more than five years. Permits may be modified,
revoked and reissued, or terminated. However, except for
continuation of expiring permits under the APA, as codified by
the regulations, the terms of a permit will not be extended
beyond the five-year limit by modification, extension, or other
means. The continuation provision automatically continues the [122.12(b)(1)]
terms of an expired federally issued permit pending the
issuance of a new permit if the permittee has submitted a
timely and sufficient application, and through no fault
of the permittee, the Regional Administrator is unable to
issue a new permit before the expiration date of the previous
permit.
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Any permit issued to dischargers in primary industries (see [122.12(c)(1) and
(2) 1
the industrial categories listed in Appendix A of Part 122) must
incorporate applicable effluent limitations standards, or a
"reopener clause" and specified effluent limitations. The [122.15(b)(1)]
following language is an acceptable "reopener clause" for
the purposes of this regulation:
"This permit shall be modified, or alternatively, revoked
and reissued, to comply with any applicable standard or
limitation promulgated or approved under Sections 301(b)(2)
(C) and (D), 304(b)(2), and 307(a)(2) of the Clean Water
Act, if the effluent standard or limitation so issued or
approved:
(i) Contains different conditions or is otherwise
more stringent than any effluent limitation in
the permit; or
(ii) Controls any pollutant not limited in the permit.
The permit as modified or reissued under this paragraph
shall also contain any other requirements of the Act then
applicable.
Special Provisions for Applications from New Sources
[124.12]
[122.47(c)(4)]
The regulations also include special provisions for appli-
cations from new sources. Before beginning any on-site con-
struction, the EPA requires potential new sources to submit
information to the Regional Administrator, so that he or she
can make a determination on whether the facility is in fact
a new source. Within 30 days of the receipt of all such
information, the Regional Administrator will make an initial
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termination. Public notice of the determination will be
sued. If determined to be a new source, the notice will
ate that the applicant must comply with the environmental
view requirements of 40 CFR §6.900 et seq., which may
elude a requirement that an Environmental Impact Statement
IIS) be prepared. If an EIS is required, no on-site con-
ruction may begin until a final permit is issued containing
,S-related requirements or the applicant enters into a
itten agreement which will assure compliance with all such
iquirements, unless construction is found not to cause
gnifleant adverse environmental impact. This "preconstruc-
on ban" provision of Section 122.47(c)(4) does not apply
i projects under construction as of the August 13, 1979,
fective date of the regulations.
Any interested person may challenge the determination
r requesting an evidentiary hearing within 30 days of issu-
ice of the notice. The Regional Administrator may delay a
taring on a new source determination until the hearing on
ie final permit and consolidate the two hearings.
iquests for Modification, Revocation and Reissuance, or Termination [124.13]
The requests can be made by any interested person, including
discharger with a permit. The Director may also initiate
dification, revocation and reissuance, or termination, see
:ction 122.31(c). Formal requests must be in writing and must
ate all the relevant facts and reasons underlying the request.
If the request for modification is granted: [124.13(b)(1)•
124.32(a)(1)]
— the Director will formulate a new draft permit
incorporating the changes (modification may be
based on the initial request itself, unless more
information is needed, in which case the Director
may require a new permit application).
— only those terms requested to be modified will
be re-opened. (All other aspects of the permit
will remain in force.)
II-9
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If the request for revocation and reissuance is granted: [124.13(b)(1);
q 124.32(a)(l)]
— the Director will formulate a new draft permit
incorporating the changes and shall issue a notice
of intent to revoke the existing permit.
— the same procedures would be followed as if the
permit had expired and was being reissued.
• If the request for termination is granted: [124.13(b)(2) ;
124.32(a)(l)]
— the Director shall issue a notice of intent
to terminate.
— see also Procedure for Handling Application After
Deciding to Deny or Terminate (page 11-11).
• If the modification request is denied: [124.13(b)(2) ]
— the Director will make a written reply to the
discharger (and to the requester, if different)
briefly explaining his reasons for that decision.
— there is no automatic right to a hearing on this
determination.
(Note: the procedure for the grant of a request for
termination is covered later on in this chapter.)
Any such draft permit or notice of intent to revoke and [124.32(b)]
reissue or terminate must, as with all permit decisions, be
based on the administrative record.
Permits Required on Case-by-Case Basis [124.14]
The Director, on a case-by-case basis, may determine that the
following facilities or operations are significant contributors of
pollution to waters of the United States and must obtain individual
permits:
• Concentrated animal feeding facilities; [122.42]
• Concentrated aquatic animal production facilities; [122.43]
• Separate storm sewers; and [122.45]
• Certain facilities other than separate storm sewers, [122.48]
which may also be covered by general permits.
11-10
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If the Regional Administrator decides that an individual permit
is required, he or she will give written notice to the discharger.
Notice will:
• Explain the reasons for the decision;
• Include a permit application;
• State that the application must be properly submitted
within 60 days; and
• In the case of general permits, state that the general [122.48(e)(2)]
permit no longer authorizes the owner or operator to
discharge pollutants (provided that there has already
been an on-site inspection of the facility and a
determination made that the facility should be regulated
by a general permit).
No evidentiary hearing is provided before requiring individual
permit applications. The question as to whether the case-by-case
designation is proper and, thus, an individual permit should be
required can be raised by the potential individual permittee (or
other interested person) during the public comment period and any
subsequent hearings.
Procedure for Handling Application After Deciding to Deny or Terminate [124.15;
124.321
If a permit is denied or terminated, the same basic pro-
cedures would be followed as apply to permit issuance:
• A notice of intent to deny or terminate
will be issued
• Notice will be accompanied by a fact sheet or
statement of basis
• Notice will be made available for public comment
• A response to comments will be prepared
• A final decision will be prepared
• An evidentiary hearing with a right of appeal to
the Administrator may be requested on the issues
raised.
11-11
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PROCEDURES ON STATE CERTIFICATION [Subpart C]
Introduction [124.21]
Section 401(a)(1) of the Clean Water Act prohibits the EPA from
issuing a permit until certification is granted or waived by
the state in which the discharge originates. All applications
without state certification must, therefore, be forwarded to
the appropriate state agency, along with a request for certi-
fication. If the draft permit is prepared, and state certi-
fication is still not received, the Regional Administrator
must send the state the following:
• A copy of the draft permit, and
• Notice that the
— EPA cannot take further action until the state
either grants or denies certification, or waives
the right to certify; and
— right to certify will be deemed waived unless
exercised within a specified reasonable time
(not to exceed 60 days) from the date the draft
permit is sent, unless unusual circumstances
require a longer time-.
State Certification [124.22]
If the state decides to grant or deny certification, it
will provide notice, including a copy of any certification
to the applicant and the Regional Administrator.
A state certification must be in writing and must include:
(1) The terms or conditions which will result in
compliance with applicable state or Federal law
11-12
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(2) If the state is certifying a draft permit, it must
identify:
a. any conditions in the draft permit which should
be made more stringent to comply with applicable
state and Federal law (the Clean Water Act) as well
as the applicable provisions of the Act or state
law upon which each condition is based. Ordinarily
states will probably limit their certifications to the
requirements of their own state laws, rather than the
Clean Water Act.
b. the extent to which each term or condition can be
made less stringent without violating the require-
ments of state law, a "ceiling".
Note that the following conditions apply to state certification
procedures for EPA-issued permits:
• No final permit will be issued unless it incorporates [124.23(a)]
the requirements specified by the state in (1) and
(2)a above.
• Failure of the state to specify as required in (2)a and
(2)b above will be deemed a waiver of the right to
certify with respect to such condition or term.
• Forcing the states to set as a ceiling the minimum terms
and conditions which will be necessary to comply with
applicable state law will alleviate the need for
continual resubmission each time a draft permit is made
less stringent as a result of public review during the
permit issuance process.
• The states, however, may not require the EPA to adopt [124.23(c)]
less stringent conditions, nor condition or deny
dertification on the grounds that state law requires
less stringent conditions than Federal law.
Change in State Law [124.23(b)]
If, after state certification has been granted, there is a change
in state law, or certain provisions of the state law are found invalid
by a state court, the state may issue a modified certification or
notice of waiver, and forward it to the EPA.
If the modified certification is received by the EPA prior to final
agency action, the permit will be issued consistent with any more stringent
requirements of state law as specified by conditions identified in the
certification (unless change in certification is based on a relaxation
of state law).
11-13
-------
After final agency action, the Regional Administrator may
modify the permit only to the extent necessary to delete any
conditions found invalid by a state court. No EPA appeal
proceedings are available to contest conditions specified by the
state in its certification; relief is only available through
state procedure.
11-14
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CHAPTER III
PREPARATION OF
DRAFT PERMIT
-------
CHAPTER III
SUBPART D—PREPARATION OF A DRAFT PERMIT
OVERVIEW
When the EPA or approved states receive an application that meets NPDES
requirements, they must tentatively decide whether to issue or deny the permit.
If they tentatively decide to issue the permit, a draft permit will be prepared
and it will be made available for public review. The draft permit will specify
all the compliance schedules, limitations, requirements and conditions to be
placed on the discharger.
The EPA and the states are also required to prepare a fact sheet or statement
of basis for each draft permit. A fact sheet is required for draft"permits
covering major dischargers, general permits, those arousing widespread public
interest or raising major issues, and those incorporating a variance or
modification. It is not intended that a fact sheet be required whenever there
is any permit mnriifiration; rathpr, it is required only when the entire^permit
or significant terms or conditions are being modified, or the permit contains
modified terms or conditions specifically authorized by the Act (such as Section
301(i) or 301(h)). The fact sheet will set forth the major facts and the
significant questions considered in setting the terms of the draft permit.
A statement of basis is required for all other permits. It presents, in
less detail, the derivation of the terms and conditions of the permit and the
reasons for them.
Any permit terms and conditions formulated by the EPA will be based on an
official agency file, called the administrative record. The administrative record
will typically consist of the application, draft permit, statement of basis or
fact sheet, supporting documents and data. The record will be made available to
the public for inspection and copying.
III-l
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This chapter includes examples of a statement of basis, a fact sheet,
and an administrative record. For a complete analysis of the procedures,
refer to the appropriate section of the regulations.
The following forms are included:
• Model formats for a statement of basis and a fact sheet, with
helpful hints for preparing the documents.
• Suggested formats for an index to the administrative record for
both draft and final permits, including the text of the rules
governing preparation and contests of the record. Also included
is a sample index to documents, listing some of the specific docu-
. ments that would be found in a typical administrative record.
III-2
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[Statement of Basis]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
STATEMENT OF BASIS
DRAFT NPDES PERMIT TO
DISCHARGE INTO THE WATERS OF
THE UNITED STATES
NPDES Permit No.
Application No.
[Optional, State Permit No.
if available]
Name and Address of Applicant
Name and Address of Facility
where Discharge Occurs
Receiving. Water:
Classification:
I. LOCATION OF DISCHARGE
The above named applicant has applied for an NPDES permit,
which will be issued by the U.S. Environmental Protection
Agency to discharge into the designated receiving water.
A description and/or sketch of the location of the discharge
is appended as Attachment I. [Generally, a description alone
should be sufficient for the statement of basis.]
II. DESCRIPTION OF APPLICANT'S FACILITY AND DISCHARGE
^ 4M
Provide a brief factual description of the
kind of facility, parameters discharged and
concentrations (from permit application), and
the processes and sources which contribute
to each discharge.
^ «•
III. DESCRIPTION OF LIMITATIONS AND CONDITIONS [124.33]
Discharge 001
• Briefly refer to each effluent parameter - explain how
how each limitation was denied - identifying tech-
nologies applied and degree of production or control
III-3
-------
expected from such treatment technologies. Reference
any calculations made in determining that a particular
parameter did not need to be limited. Cite sources
of limitations (e.g., Guidelines/Development Document/
Guidance).
Briefly describe the basis for selection of monitoring
requirements.
Discharge 002
E<
Follow Same Procedure
General Conditions
• Briefly describe any important or case-specific general
conditions. Explain the reasons and basis for the
conditions.
Compliance Schedules
* Briefly describe reasons for Compliance Schedules —
highlight important issues.
N.B. The "STATEMENT OF BASIS" is intended to be
brief, concise but complete. The Preamble at
44 FR 32881 states:
In many cases the "statement of basis' could
consist of the internal memorandum prepared
within the Agency which informs the person
signing the permit of the guidelines or other
source of the effluent limits and any issues
which the permit raises. By utilizing such an
approach, EPA believes we are maximizing the
utilization of the permit issuing authority's
limited resources without denying the public
or permittee basic information upon which to
judge the adequacy of the permit.
THEREFORE
Existing Regional practices, unchanged, may be
sufficient in many cases to serve as a statement
of basis. Such a determination of existing
sufficiency must be made by each Region.
III-4
-------
[Fact Sheet for: (1) Major
Dischargers; (2) Permits Incor-
porating a Variance or Modifica-
tion; (3) Permits which Raise
Major Public Issues or with
Widespread Public Interest. Fact
Sheet for General Permits would
be similar but would not identify
applicants and would justify
general permit program area,
etc. ]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
FACT SHEET
DRAFT NPDES PERMIT TO DISCHARGE INTO
THE WATERS OF THE UNITED STATES
NPDES Permit No.
Application No.
[Optional, State Permit No.
if available]
Name and Address of Applicant
Name and Address of Facility where
Discharge Occurs
Receiving Water:
Classification:
I. LOCATION OF DISCHARGE
The above named applicant has applied for an NPDES permit,
which will be issued by the U.S. Environmental Protection
Agency to discharge into the designated receiving water.
A description and/or sketch of the location of the
discharge is appended as Attachment I. Enclose location
map if submitted as part of application.
II. DESCRIPTION OF DISCHARGE'
A quantitative description of the existing discharge in
terms of significant effluent parameters is appended
as Attachment II.
III-5
-------
III. DESCRIPTION OF LIMITATIONS AND CONDITIONS
The effluent limitations in the draft Permit as well as
monitoring requirements, schedules of compliance and
special conditions are described in Attachment III. Also
included in Attachment III is an explanation of the basis
for each limitation or condition in the draft Permit.
IV. STATE CERTIFICATION REQUIREMENTS
State whether there is a 401 Certi-
fication for this permit - if not -
why not. Describe specific state
certified limitations (as opposed
to EPA-developed permit limitations),
[Subpart C]
[124.21 et
seq.]
Review and appeals of conditions specified by the
State shall be made through the applicable pro-
cedures of the State and may not be made through
EPA procedures.
V. VARIANCE OR MODIFICATION (if applicable)
[124.23(e)]
A brief statement of reasons why a
requested variance modification is
or is not justified.
[124.34(b)
(5)]
VI. EPA CONTACT
Additional information concerning the draft Permit may
be obtained between the hours of a.m. and
p.m., Monday through Friday from:
Name
Address
Room Number
Telephone
Dated
Regional Administrator
III-6
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ATTACHMENT I [124.34(b)
(31)]
• Attach a sketch or a detailed description of the location
of the discharge point(s).
e.g., Use location map or sketch from application
or prepare sketch from USGS maps
NOTE: Sketch or detailed description is only
required "where appropriate". This should
mean in any case where use of a sketch or
detailed description will make the fact sheet
clearer and more easily understandable.
III-7
-------
ATTACHMENT II
DESCRIPTION OF DISCHARGE:
Discharge 001 (Describe processes and other sources
which contribute to the discharge)
Effluent Parameter Maximum Ib/day (mg/1) Average Ib/day (mg/1)
Discharge 002 (Describe sources, etc.)
Effluent Parameter Maximum Ib/day (mg/1) Average Ib/day (mg/1)
Discharge 003
III-8
-------
ATTACHMENT III
DESCRIPTION OF LIMITATION AND CONDITIONS:
Discharge 001
Effluent Parameter Discharge Limitations Monitoring Requirements
Daily Avg. Daily Max. Frequency Type
Parameter #1
— Citation to Statutory/Regulatory Provisions on which
limitations are based.
— Description of technologies selected and effluent
reduction or control expected from such treatment
technologies. Refer to Guidelines/Development Document/
Guidance, Treatability Manuals, BMP Guidance Documents, etc.
— Any calculations or other necessary explanation of
derivation of limitations/monitoring requirements. Include
all calculations necessary to convert effluent guideline
limitations to permit limitations, all 402(a)(1) Best
Engineering Judgment calculations, etc. Include any calculations
used to determine that an effluent limitation for a parameter
was not necessary.
— Reference any EPA national policy guidance relied on such
as the National Municipal Policy, the Second Round Permits
Policy, etc.
• Parameter #2:
Discharge 002
Discharge 003
III-9
-------
General Conditions
• Reference 122.14
• 316(a) or 316(b) or other study requirements
Compliance Schedules
• List any compliance schedules with statutory/regulatory,
or other justification for the dates selected.
Attain BCT or BAT limitations on .
Attain interim limitations of on
II-I-10
-------
[Designation of Record Clerk]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
Re: Ajax Manufacturing Company
NPDES Permit Application No.
Designation of Record Clerk
In accordance with the requirements of 40 C.F.R. 124.35(e),
the following person is designated Record Clerk with respon-
sibility for maintaining the Administrative Record for the
above identified draft Permit:
Name
Address
Telephone
Dated Regional Administrator
III-ll
-------
[Administrative Record For Draft Permit]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
ADMINISTRATIVE RECORD
FOR DRAFT PERMIT
APPLICATION NO:
PERMIT NO:
PERMITTEE:
S12O5 Administrative record for EPA
(a) Decisions by the Regional
Adminstrator to formulate a draft permit
under S 124.31 or S 124.32 shall be made
on the basis of the administrative record
defined in this section.
(b) The record for a draft permit under
§ 124.31 shall consist of:
(1) The initial application and any
supporting data furnished by the
applicant:
(2) The draft permit;
(3) The statement of basis required by
S 124.33 or fact sheet prepared under
§12434:
(4) All documents cited in the fact
sheet or die statement of basis;
(5) Other documenta contained te the
supporting file for the permit, including
correspondence, telephone and meeting
memoranda, compliance reports, etc;
(6) All comments submitted en a new
source determination under $ 124.12,
and any other documents H>A cooaidera
relevant to the determination; and
(7) Any environmental asseranenU
negative declaration, or environmental
Impact appraisal dial may have been
prepared.
(c) The record for formulating a draft
permit under § 124.32 shall consist of the
draft permit, the statement of basis
required by J 124.33 or fact sheet
prepared under $ 124.34 and all
documents cited in the fact sheet or the
statement of basis.
(d) Material readily available at the
issuing Regional Office or published
material.which is generally available,
and which is included in the
administrative record trader the ,
standards of paragraphs (b) and (c),
does not need to be physically included
in the same file as the rest of the record
as long as it is specifically refeieuied in
the statement of basis or the fact sheet
te] No later than the time a draft
permit is Issued, a Record Clerk shall be
designated with responsibility for
maintaining (he records estabttshed-
under this section. Copying of any
documents in the record shall be
allowed under appropriate
arrangements to prevent their loss. The
charge for such copies shall be made In
accordance with the written «rj"»dnle
contained In 40 CFE Part 2.
f Comment The administrative record far
draft pennlU under Una section wiU comprise
the bulk of the material for the final
administrative .record See § 121&4.J
111-12
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CHAPTER IV
PUBLIC NOTICE
-------
CHAPTER IV
SUBPART E—PUBLIC NOTICE, COMMENT AND HEARINGS
OVERVIEW
Part 124 ensures public notice and participation in permit proceedings.
This chapter will cover the methods for circulating notice, the contents of the
notice, and the procedures to be followed during the comment period.
Public notice must provide interested persons with a minimum of 30 days to
comment on the draft permit and 30 days notice before a hearing. Notice must be
mailed to certain Federal and state agencies, persons on mailing lists, appli-
cants, and other persons specified in the regulations. Notice may also be
published, posted at municipal buildings, or provided in any other manner that
is designed to inform interested persons.
The regulations also allow public hearings concerning draft permits to be
held whenever there is significant public interest. The EPA may also schedule
such a hearing on its own initiative.
Public comment takes on added significance under the new regulations. Unless
good cause for the failure to do so earlier is shown, parties cannot raise issues
for the first time at an evidentiary hearing. All parties, including applicants,
must now raise all objections and submit all relevant evidence at the public
hearings on the draft permit or by the close of the public comment period. The
purpose of the change is to encourage resolution of issues at the time.of public
comment on the draft permit, rather than in the more cumbersome and expensive
evidentiary hearing.
The regulations also specify the information"to be contained in the
public notice. In accordance with these requirements, particular notice
forms have been prepared and appear at the end of this chapter.
IV-1
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METHODS FOR CIRCULATING NOTICE [124.41]
The Director must give notice of formulation of a draft
permit and notice of all hearings by two methods:
• A detailed mailed public notice sent to
— the applicant
— the U.S. Corps of Engineers
— the appropriate Federal and state agencies, including
affected state
— any persons requesting information
— all persons on a mailing list
• One of the following less detailed public notices
— newspaper publication within area affected by the
discharge; or
— posting notice at the Post Office and principal
office of the municipality affected by the discharge.
IV-2
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PROCEDURES FOR THE COMMENT PERIOD AND PUBLIC HEARINGS
Public Comments and Hearings [124.42]
Public notice must provide interested persons with a minimum
of 30 days to submit written comments on the draft permit and
administrative record. During this period, any interested person
may also make a written request for a public hearing, stating the
nature of the issues to be raised. The Director may hold such a
hearing if there is significant public interest or in any other
such appropriate case. Public notice must be given 30 days before
the hearing, and any interested person may submit oral or written
statements and data concerning the permit. At the hearing, reason-
able time limits may be set for oral statements and all statements
may be required to be submitted in writing.
Raising Objections and Providing Information During Comment Period [124.43]
This public comment period takes on added significance under
the new regulations. All parties, including applicants, must now
raise all objections and submit all relevant evidence at the public
hearings or by the close of the public comment period.
Terms Requested by Corps of Engineers and Other Governmental Agencies [124.44]
Government agencies, both Federal and State, will be expected
to comment during the public comment period. In appropriate cases,
however, they may still be consulted informally before the draft
permit is formulated.
IV-3
-------
If, during the comment period, the District Engineer of
the Corps of Engineers advises the Director in writing that
specified conditions should be included in the permit or that
the permit should be denied so as to avoid substantial impair-
ment of anchorage or navigation of U.S. waters, the Director
must follow such advice. Any review on such action will pro-
ceed through the applicable procedures of the Corps of Engineers.
Specified conditions submitted by any state or federal
agency with jurisdiction over fish, wildlife, or public health
may also be included in the permit to the extent necessary to
carry out the provisions of the Clean Water Act.
Re-opening of Comment Period [124.45]
The new regulations do not provide for an automatic "reply
comment" period, in which interested parties could respond to
points made during the main comment period. However, when sub-
stantial new questions are raised during the public comment
period, the Director may
• re-open the comment period
• prepare a fact sheet or revised fact sheet, and
re-open the comment period, or
• prepare a new draft permit appropriately modified.
IV-4
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[Notice of "Public Hearing]
Permit No.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
NOTICE OF PUBLIC HEARING ON
DRAFT NPDES PERMIT TO
DISCHARGE INTO THE WATERS
OF THE UNITED STATES
Date of Notice
[124.41(g)]
Application No.
Name and Address of Applicant
Name and Address of Facility
Where Discharge Occurs
[124.41(c)(2)]
Receiving Water:
Classification:
This is to give notice that on
[124.41(g)(2)]
date
the Regional Administrator or a Presiding Officer designated
by him/her will conduct a Public Hearing on the above identified
Draft Permit. The hearing will be held at
and will begin at
have been heard.
time
name and address of place of hearing
and continue until all interested persons
IV-5
-------
EPA's contact person for information regarding the draft [124.41(c) (3)]
permit and from whom copies of the permit and the Statement of
Basis or Fact Sheet may be obtained is:
Name
Address
Telephone
The administrative record containing all documents
relating to the permit is located at
room number and address
and is available for public inspection between a.m. and
p.m. Monday through Friday, except holidays.
Section 316(a) information
if applicable.
Public notice of the draft permit was dated
LOCATION OF DISCHARGE
A description and/or sketch of the location of the
discharge is appended as Attachment I.
* THE REMAINDER OF THIS INFORMATION IS ONLY NECESSARY*
* FOR THE MORE DETAILED MAILED PUBLIC NOTICE*
[124.41(c)(4)]
[124.41(c)(5)]
f!24.41(e)]
[124.41(g)(D]
[124.41(c)(2)]
[124.41(d>]
DESCRIPTION OF APPLICANT'S FACILITY AND DISCHARGE
Provide a brief factual description of
the kind of facility, and the processes
and sources which contribute to each
discharge.
IV-6
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New Source Information if
applicable including EIS
information.
[124.41(d)(3)]
The purpose of this Public Hearing is "to receive comments
from interested persons and the public on the Draft Permit
proposed by EPA for this facility. The following is a summary
of the procedures which will be followed at the hearing:
[124.41(g)(3)l
[124.41(d)(2)l
[124.42]
1. The Presiding Officer shall have authority to open
and conclude the hearing and to maintain order.
2. Any person appearing at the Hearing may submit oral
or written statements and data concerning the draft
permit.
3. The Presiding Officer may set reasonable limits on
the time allowed for oral statements.
OPTION: The notice may prescribe time
limits (i.e., number of minutes allowed
for each person or group)
OR
The notice may require submission of
statements in writing.
[124.42(b)(2)]
IV-7
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[Public Notice of Draft Permit
Except General Permits]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
PUBLIC NOTICE OF DRAFT NPDES PERMIT TO [124.41(c)]
DISCHARGE INTO THE
WATERS OF THE UNITED STATES
Permit No. Date of Notice
Application No.
Name and Address of Applicant
Name and Address of Facility. [124.41(c)(2)]
Where Discharge Occurs
Receiving Water:
Classification:
This is to give notice that the U.S. Environmental Protection
Agency has formulated a Draft Permit for the above-identified facility
under the National Pollutant Discharge Elimination System.
EPA's contact person for information regarding the draft [124.41(c) (3)]
permit and from whom copies of the permit and the Statement of
Basis or Fact Sheet may be obtained is:
Name
Address
Telephone
IV-8
-------
The administrative record containing all documents
relating to the draft permit is located at
[124.41(c)(4)]
room number and address
and is available for public inspection between a.m. and p.m.
Monday through Friday, except holidays.
Section 316(a) information
if applicable.
[124.41(c)(5)]
[124.41(e>]
LOCATION OF DISCHARGE
A description and/or sketch of the location of the discharge [124.41(c)(2)]
is appended as Attachment I.
DESCRIPTION OF APPLICANT'S FACILITY AND DISCHARGE
Provide a brief factual description of the
kind of facility, and the processes and
sources which contribute to each discharge.
[124.41(d)]
New Source Information if .applicable
including EIS information.
COMMENT PROCEDURES
EPA's comment and public hearing procedures may be found
at 40 C.F.R. §124.42. The following is a summary of those
procedures:
1. The comment period during which written comments
on the draft permit may be submitted extends for
30 days from the date of this Notice. The comment
period for this permit closes on
[124.41(d)(3)]
date
IV-9
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2. During the comment period, any interested person
may request a Public Hearing by filing a written
request which must state the issues to be raised.
The last day for filing a request for public
hearing is .
date
In appropriate cases, including cases where there
is significant public interest, the EPA Director
may hold a public hearing. A decision has not
yet been made as to whether a public hearing will
be held for this permit.
OR: If a decision to hold a hearing has already been
made, state DATE, TIME AND PLACE of hearing.
NOTE: In cases of Permits which will follow the
Nonadversary Procedures of Subpart I, include
the information required by §124.41(i).
For example:
Further action on this draft permit will be
governed by Subpart I of Part 124 of EPA's regulations
(Nonadversary Procedures for Initial Licensing). These
procedures are conducted informally but, in order to
participate, interested persons must submit a written
request for a hearing. In this case, written requests
for hearings must be submitted to the Regional Hearing
Clerk no later than .
date
While such hearings are informal, the issues
presented in the hearing must have been raised in the
comment period on the draft permit, and testimony of
witnesses must ordinarily be submitted in writing
before the hearing.
For a form of Notice of Panel Hearing, see page
VIII-6.
IV-10
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[Public Notice of Draft General
Permit to be published both in
a daily or weekly newspaper
within the area of the discharge
and in the Federal Register ]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
PUBLIC NOTICE OF DRAFT GENERAL PERMIT
This is to give notice that the U.S. Environmental Protection Agency
has formulated a Draft General Permit for the General Permit Program Area
(GPPA) described in Attachment I to this notice.
["Prepare a map or narrative description I [124.41(f)(2)(ii)]
|_of the GPPA for attachment. J
EPA's contact person for information regarding the draft permit
and from whom copies of the permit and the Statement of Basis
or Fact Sheet may be obtained is:
Name
Address
Telephone
The administrative record containing all documents [124.41(c)(4)]
relating to the permit is located at
room number and address
and is available for public inspection between a.m. and
i.m. Monday through Friday, except holidays.
IV-11
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DESCRIPTION OF ACTIVITIES TO BE COVERED
Briefly describe the activities or
operations to be covered by the
General Permit.
BASIS FOR CHOOSING GPPA
Explain reasons and basis for
selection of the GPPA.
New Source Information if
applicable.
[124.41(d)(3)]
COMMENT PROCEDURES
EPA's comment and public hearing procedures may be found
at 40 C.F.R. §124.42. The following is a summary of those
procedures:
1. The comment period during which written comments
on the Draft General Permit may be submitted
extends for 30 days from the date of this Notice.
_T.he comment pe.riod for this permit closes
on .
date
2. During the comment period, any interested person
may request a Public Hearing by filing a written
request which must state the issues to be raised.
The last day for filing a request for public
hearing is .
date
3. In appropriate cases, including cases where there
is significant public interest, the EPA Director
may hold a public hearing. A decision has not
yet been made as to whether a public hearing will
be held for this permit.
OR: If a decision to hold a hearing has
already been made, state DATE, TIME,
AND PLACE of hearing.
IV-12
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eHAPTiE'R V
VARIANCES AND
MODIFICATIONS
-------
CHAPTER V
SUBPART F-SPECIAL PROVISIONS FOR VARIANCES AND
STATUTORY MODIFICATIONS
OVERVIEW
The Clean Water Act provides for certain variances, modifications, and
extensions of its statutory requirements. The procedures regarding applica-
tion for, processing of, and decision on requests for variances are covered
in Subpart F of 40 CFR 124. However, to properly understand variance proce-
dures, reference must be made to the Act itself and the substantive criteria
for granting such variances, modifications, and extensions set out (in the
cases where regulations have been promulgated) in Subparts C, D, E, F, G, H,
I, and J of 40 CFR. 125.
The obligation to request variances, modifications, or extensions is on
the discharger. Requests must be filed by certain deadlines and be accompanied
by applications substantiating that certain conditions were met. The deadlines
and the conditions vary according to the type of variance, extension, or modifi-
cation requested. The procedures for processing variance requests are similar
for all but 301(h) secondary treatment modifications and 316(a) thermal variances.
If a variance request is granted, a draft permit will be prepared to reflect the
variance. Denials of requests will be supported in the record of the relevant
permit. Grants and denials of variance requests are also subject to appeal.
This chapter describes the general procedures for handling variance
requests. Specific procedures, with reference to applicable sections of the
Act and regulations, are listed for the various types of variance requests.
V-l
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GENERAL PROCEDURES FOR PROCESSING
VARIANCES AND STATUTORY MODIFICATIONS
Application
In order for a discharger to obtain a permit containing
provisions that vary from statutory requirements, a written
application must be submitted. The actual contents of the
application and the deadline for its submittal depend on
the type of variance, modification, or extension being
requested.
In the case of a Section 301(c) economic variance or a [124.51(d)(1);
Section 301(g) water quality variance the discharger may 124.51(b)(2)(i)]
initially apply for a variance before the permit application
is submitted by submitting an "initial" application.* If
the Director anticipates such a potential variance or if,
for example, a fundamentally different factors variance is
still pending from the first permit, he or she may require
the discharger to submit a variance application to aid in
writing a draft permit.
A discharger lacking necessary information to complete
an application for a variance under 301(c) or 301(g) may
request an extension of the deadline for submitting the
application. The Director may grant such an extension
for up to six months.
One other factor which may affect the manner of and
deadline for applying is the status of applicable regula-
tions. Certain Subparts of 40 CFR 125 covering criteria
for granting variances had not been promulgated as of
August, 1979.
*Because there was also a statutory deadline for submitting requests for Section 301(h)
secondary treatment waivers, Section 301(h) applicants also submitted "initial"
applications; this section does not apply to those situations.
V-2
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Effect on Permit
Any modification, extension, or other variance must
be accommodated in a draft permit. The manner in which
this occurs depends on the status of the permit at the
time the variance request is received.
If the permit application has been received, but the [124.53(a)(1)]
draft permit has not yet been formulated, a determination
on the variance request shall be made and reflected in the
draft permit. An exception would be made if the request
would unduly delay the permit; in such a case, the handling
of the variance request may be separated from the permit
process.
If the draft permit has been formulated, but a final [124.53(a)(2)]
permit has not yet been issued, the permit may be stayed
and a determination on the variance request incorporated
into it. As above, an exception would be made to separate
the variance request from the permit process if the permit
were threatened with undue delay.
If a final permit has already been issued, or if the [124.53(a)(3)]
permit process has been separated from the action on the
variance request, a new draft permit may be formulated to
accommodate any variance granted.
Where appropriate, the fact sheet or administrative
record shall reflect the bases for any variances.
V-3
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Appeals
Generally, permit provisions that represent a modifi-
cation, extension, or variance from statutory requirements
are subject to the same hearings and appeals as any other
provisions. For state-issued NPDES permits, any Federal
determination on a variance request may be appealed by
filing for a Subpart I hearing. Contested variance
provisions of federally issued permits would be heard
under Subpart I or Subpart H, at the discretion of the
Regional Administrator.
Final appeal within the EPA would be to the Administrator. [124.101]
V-4
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SPECIAL PROCEDURES:
APPLICATION PROCEDURES AS COVERED BY 124.51
AND
DECISION PROCEDURES AS COVERED BY 124.52
Request: Non-POTW variance based on the presence of "fundamentally different
factors" from those forming basis for effluent limitations guideline.
Authority: 124.51(b)(l)
Deadline: Close of public comment period on draft permit.
Application Content: Part 125, Subpart D
Processing; Normal procedures under 124.52-.54.
State Director or Regional Administrator may deny or recommend
approval.
EPA DAAWE may deny or approve.
Request: Non-POTW variance from BAT requirements, based on effluent limitations
guidelines for 302(b)(2)(F) pollutants because of economic capability of owner
or operator.
Authority; 124.51 (b)(2)
301(c)
Deadlines: • Initial "post card" application by:
(1) September 25, 1978 for pollutants controlled by BAT effluent
limitation guideline promulgated before December 27, 1977; or
(2) 270 days after promulgation of an applicable effluent
guideline for guidelines promulgated after December 27, 1977.
• Completed request by close of public comment period on draft permit.
Extension of up to six months may be granted upon request
(Section 124.51(d)(2)).
V-5
-------
Application Content; Substantive content not available (to be published in
Part 125, Subpart E).
Processing: Normal procedures under 124.52-.54.
State Director or Regional Administrator may deny or recommend
approval.
EPA DAAWE may deny or approve.
Request: Non-POTW variance from BAT requirements based on effluent limitation
guidelines for 301(b)(2)(F) pollutants because of certain environmental
considerations.
Authority: 124.51(b)(2)
301(g)
Deadlines: • Initial "post card" application by:
(1) September 25, 1978, where applicable effluent limitation guideline
promulgated before December 27, 1977; or
(2) 270 days after promulgation of applicable-effluent guideline
promulgated after December 27, 1977.
• Completed request by close of public comment period on draft permit.
Extension of up to six months may be granted upon request
(Section 124.51(d)(2)).
Application Content: Substantive content not available (to be published in
Part 125, Subpart F).
*
Processing: Normal Procedures under 124.52-.54.
State Director or Regional Administrator may deny or recommend approval.
DAAWE may deny or approve.
V-6
-------
Request: Non-POTW variance of effluent limitations based on other than promulgated
effluent limitation guidelines.
Authority: 124.51(b)(2)
301(c) or 301(g)
Deadline: Close of public comment period on draft permit. Extension of up
to six months may be granted upon request (Section 124.51(d)(2)).
Application Content; Substantive content not available (to be published in
Part 125, Subparts E and F).
Processing: Normal procedures under 124.52-.54.
State Director or Regional Administrator may deny or recommend approval.
DAAWE may deny or approve.
Eequest: Non-POTW extension of statutory deadlines in SOlCb)(1)(A) and .
SOI(b)(1)(C) based on delay in completion of a POTW into which the source
is to discharge.
Authority; 124.51(b)(3)
301(1)(2)-
Deadlines: (1) June 26, 1978; or
(2) 180 days after the relevant POTW requests an extension under
124.51(c)(2).
Application Content: Part 125, Subpart J
Processing: Normal procedures under 124.52-.54.
Director may grant or deny.
V-7
-------
Request: Non-POTW extension of' statutory deadline in 301(b)(2)(A) for best
available control technology based on use of innovative technology.
Authority; 124.51(b)(4)
301(k)
Deadline; Close of public comment period on dischargers first draft permit
requiring BAT.
Application Content; Substantive content not available (to be published in
Part 125, Subpart C).
Processing: Normal procedures under 124.52-.54.
Regional Administrator may grant or deny.
State Director may grant or deny after consultation with the
Regional Administrator.
Request: Modification of requirements under 302(a) for achieving water quality-
related effluent limitations.
Authority: 124.51(b)(5) for non-POTWs; 124.51(c)(3) for POTWs
302(b)(2)
Deadline; Close of public comment period on draft permit.
Application Content; Explain why requirements of 302 have been met.
Processing; Normal procedures under 124.52-.54.
State Director or Regional Administrator may deny or recommend approval.
DAAWE may deny or approve.
V-8
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Request: Non-POTW variance for thermal component of a discharge.
Authority; 124.51(b)(6)
316 (a)
Deadlines: (1) Close of public comment period on draft permit if thermal effluent
limitations are established under 402(a)(1) or are based on water
quality standards.
(2) With application for permit under 124.11.
N.B. Initial application may be filed and additional studies filed later
(see Section 124.56).
Application Content: Part 125, Subpart H
Processing: Special procedures under 124.56.
Director may grant or deny.
Request: POTW modification of secondary treatment requirements of 301(b)(l)(B)
for discharges into marine waters.
Authority: 124.51(c)(l)
301(h)
Deadlines; (1) Initial application by September 25, 1978
(2) Completed application by September 13, 1979.
Application Content: Part 125, Subpart G
Processing: Special procedures under 124.55. For further information contact
301(h) Task Force, Office of Water Program Operations (WH-546),
EPA, 202/426-^8972.
V-9
-------
Request: POTW extension from statutory deadlines in 301(b)(l)(B) and 301(b)(l)(C)
based on delay in receipt of Federal funding for construction of the POTW.
Authority: 124.51(c)(2)
301(1)(1)
Deadline: June 26, 1978
Application Content: Part 125, Subpart J
Processing: Normal procedures under 124.52-.54.
Director may grant or deny.
V-10
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CHAPTER VI
ISSUANCE OF
PERMIT
-------
CHAPTER VI
SUBPART G—ISSUANCE AND EFFECTIVE
DATE OF PERMIT
OVERVIEW
Subpart G covers the issuance of final permits. It describes the pro-
cedures necessary to finalize a draft permit and the circumstances under which
provisions of a final permit become enforceable.
The steps in issuing a final permit are included in the decision logic,
located in the Appendix. A final, complete permit is issued only after certain
procedural requirements have been satisfied. Also, a permit may be issued in
part and stayed in part, pending resolution of its contested provisions. While
the decision logic (illustrating the overall 1IPDES permit process) covers permit
issuance procedures, a more detailed logic in this chapter (Figure VI-1) provides
a method to segregate contested permit conditions from those which are uncontested
and therefore immediately enforceable. A chart (Table VI-1) is also provided in
this chapter that summarizes when a permit, in part or otherwise, becomes effective.
Certain steps are necessary for every permit. There must be a public comment
period of at least 30 days. Before issuing a permit, all significant comments
must be answered in writing. If the final permit differs from the draft permit,
all changes must be highlighted and the reasons for the changes explained. The
responses to comments, and the explanation and justifications of changes, must be
made in writing and made part of the administrative record.
VI-1
-------
The administrative record, established for the draft permit, must be
updated for the final permit. Included in the update are all comments received
during the public comment period, responses to the comments, records of any
hearings held, and any supporting documentation such as correspondence, compli-
ance reports, and meeting memoranda.
Certain final issuance procedures vary, depending on the nature of the
final permit being issued. For instance, permits for some new sources require
preparation of a final EIS, which must be issued at least 30 days before the
subject final permit can be issued.
The provisions of a final permit contested in a hearing must be identified
and separated from the uncontested provisions. This process is somewhat difficult,
but its significance lies in the rule that uncontested provisions of final permits
become effective and enforceable 30 days after the notice of a hearing is given.
The determination of uncontested provisions must be made when a hearing is granted
or an appeal is made to the Administrator. Contested provisions are stayed pending
the outcome of the hearing or appeal.
The procedures covered in Subpart G involve some significant decision-
making by Agency officials. The comments in this subpart aid in understanding
the subtle distinctions of these decisions.
VI-2
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ADMINISTRATIVE RECORD FOR FINAL PERMIT
Any final permit issued under 124.61 for which the draft
permit was subject to the administrative record requirements
of 124.35 requires an administrative record. Included in the
administrative record for the final permit are:
• The Administrative Record for the Draft Permit
The required contents for that record are listed in
124.35(b) for draft permits initiated by discharger
applications and in 124.35(c) for draft permits
initiated by the Director.
• All Comments Received During the Comment Period
A comment period of at least 30 days is required for
a draft permit, under 124.42(a). Note that the
comment period may be re-opened under 125.45(c).
All written comments from the complete period must
be included in the record.
• Tape(s) or Transcript(s) of Hearing(s)
Public hearings on the draft permit may be held
pursuant to 124.42(b). The record of the hearing
shall include all written materials submitted and
all oral statements, reduced to written or taped
form.
* Response to Comments
The Director is required under 124.63(a) to respond
in writing to comments submitted during the comment
VI-3
-------
period and during any hearing. The response shall
include:
— Permit Changes. Each provision in the final
permit that differs from or is in addition
to those in the draft permit shall be speci-
fically identified. The reasons for the changes
shall be stated.
— Response to Comments. All significant comments
shall be briefly described. A response to each
of the significant comments shall be made.
— Cited documents. Any documents cited in the
response to comments shall also be included.
Environmental Impact Statement
If required under 40 CFR §6.916, a final environmental [124.62]
impact statement shall be prepared before the final
permit for a new source is issued.
The Final Permit
Other Supporting Documents
Any documents contained in the file supporting the
permit shall be included. Examples are: copies of
notices, correspondence, logs of telephone conversations,
meeting memoranda, compliance reports, etc.
Any materials readily available at the issuing Regional
Office or published material which is generally available,
and which is included in the administrative record under
124.61 or 124.63, does not need to be physically included
in the same file as the rest of the record as long as it
is specifically referenced in the fact sheet, statement
of basis or in the response to comments.
VI-4
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[Administrative Record for Final Permit]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
ADMINISTRATIVE RECORD
FOR FINAL PERMIT
APPLICATION NO:
PERMIT NO:
PERMITTEE:
§ 124.64 Administrative record for final
permit Issued by EPA.
(a) Decisions to issue a final permit
under § 124.61 shall be made on the
basis of the administrative record
defined in this section.
(b) The administrative record for any
final permit shall consist of the
administrative record for the draft
permit and
(1) All comments received during the
public comment period required by
§ 124.42;
(2) The tape or transcript of any
hearing(s) held under § 124.42;
(3) The response to comments
required by § 124.63;
(4) Any final Environmental Impact
Statement;
[5] Other documents contained in the
supporting file for the permit, including
correspondence, telephone and meeting
memoranda, compliance reports, etc.;
and
(6) The final permit.
These documents shall be added to the
record as soon as feasible after their
receipt or publication by the Agency.
(c)(l) This section applies to all final
permits where the draft permit was
subject to the administrative record
requirements of § 124.35.
(2) Whether or not a draft permit was
formulated or final permit was issued
subject to this Subpart, the Regional
Administrator, at any time prior to the
rendering of an initial decision in an
evidentiary hearing on that permit, may
withdraw the permit in whole or in part
and formulate a new draft permit under
§ 124.31 addressing the portions so
withdrawn. The new draft permit shall
proceed through the same process of
public comment and opportunity for a
public hearing, etc. as would apply to
any other draft permit subject to this
Part. Any portions of the permit which
are not withdrawn and which are not
stayed under J 124.61 shall remain in
effect.
(d) Material readily available at the
issuing Regional Office or published
material which is generally available,
and which is included in the
administrative record under the
standards of this section or of § 124.63
("Response to Comments"), does not
need to be physically included in the
same file as the rest of the record as
long as it is specifically referenced in
the fact sheet or statement of.basis or in
the response to comments.
VI-5
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PAGE NOT
AVAILABLE
DIGITALLY
-------
TABLE VI-1
ENFORCEABLE PERMIT PROVISIONS
Existing Sources
Evidentiary hearing granted on
application for renewal of
existing permit
§124.61(f)
Evidentiary hearing granted in
whole or in part regarding permit
for existing source
§124.61(e)
Petition for review of denial of
request for evidentiary hearing
§124.61(e)
-All conditions of existing permit remain
in full force and effect although the
Regional Administrator, on request of
applicant, can modify the existing
permit to delete requirements which
unnecessarily duplicate uncontested
provisions of the new permit
-Contested provisions stayed pending
final Agency action
-Uncontested provisions continue in full
force and effect
-All contested provisions stayed pending
final Agency action
-Uncontested provisions become effective
30 days unless denial of evidentiary
hearing appealed (124.61 (e)(5)
-All contested provisions stayed pending
final Agency action
New Sources or New Discharges
Evidentiary hearing granted regarding
permit for initial permit
§124.61 (c)
Petition for review of the denial
of an evidentiary hearing
§124.60(c)
All contested provisions of stayed
pending final Agency action and since
there is no existing permit, the source
is considered to be WITHOUT A PERMIT
PENDING FINAL AGENCY ACTION
VI-7
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CHECKLIST OF DOCUMENTS TO INCLUDE
IN ADMINISTRATIVE RECORD
LJ Permit Application
[~| Designation of Record Clerk
LJ Draft Permit
II Statement of Basis/Fact Sheet
I—I Public Notice/Draft
LJ Notice of Public Hearing
I I Comments
I I Response to Comments
CD Final Permit
I—I Statement of Basis/Fact Sheet - Final
I I Request for Evidentiary Hearing
I—I Order and Specifications of Regional Administrator
*- I I Designation of Trial Staff and Decisional Body [124.77]
I,,' Mr.i-i'no Of Grant of Hearing
I I Request to be Party
11 I _Rpfprral to Chief Administrative Law Judge
I—I Notice of Pre-Hearing Conference
I—I Appearances
I I Pre-Hearing Conference Order
I—I Request for Intervention
I I Order of Administrative Law Judge on Request for Intervention
LJ Stipulation
JRB Associates, Inc.-
VI- 8
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CHAPTER VII
EVIDENTIARY HEARINGS
-------
CHAPTER VII
SUBPART H—EVIDENTIARY HEARING PROCESS
OVERVIEW
An evidentiary hearing provides permittees a mechanism for challenging final
individual permits. The hearing is to be conducted by a Presiding Officer, an
Administrative Law Judge. Prehearing conferences may be held for the purposes of
obtaining stipulations, admissions, identifying matters not in issue, and matters
in dispute. Time schedules may also be specified for the hearing and for exchanging
documents and data. The Presiding Officer will also have wide authority during the
hearing, including the authority to examine witnesses, exclude or limit evidence,
and rule on motions and other procedural matters pending before him or her,
e.g., motions for summary judgment.
The limited right of cross-examination in evidentiary hearings is also
explicitly recognized in the new regulations. There is no automatic right of
cross-examination and the proponent of cross-examination has the burden of
justifying its use. In addition., all direct and rebuttal testimony must be
submitted in written form unless it can be affirmatively shown that the testi-
mony can only be effectively presented orally.
An essential change in the new procedures is the prohibition against raising
issues at an evidentiary hearing that were not first raised during the comment
period on the draft permit. An exemption from this requirement is provided if
good cause can be shown for the failure to raise the issues earlier.
The regulations also provide for an interlocutory appeal process. This
process allows a party to appeal an order or ruling prior to the issuance of the
VII-1
-------
initial decision by the Presiding Officer. It is permitted only if the Presiding
Officer, upon motion of a party, certifies the orders or rulings for appeal.
Requests for certification must be filed in writing within 10 days of service of
notice of the order or ruling and must briefly state the grounds for such request.
Certification may be granted only if certain threshold conditions are met.
After the hearing, the parties will have an opportunity to submit proposed
findings of fact, conclusions, and a supporting brief. The Presiding Officer may
allow reply briefs. The Presiding Officer will then review and evaluate these,
together with the hearing record and any interlocutory decisions, in issuing the
initial decision. The initial decision will automatically become effective 30
days after its service, unless there is a petition for review, or the Administrator
on his or her own motion decides to review the decision.
The decision logic included in this chapter (Figure VII-1) illustrates
the key events in the evidentiary hearing process. Helpful hints for
expediting the process will also be provided, as well as checklists for
evaluating requests for an evidentiary hearing, sample forms for a proposed
prehearing conference order and a stipulation. Reference should be made to
the section in question for a complete analysis of the procedures.
VII-2
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PROCEDURES FOR INTERLOCUTORY APPEAL [124.90]
The former practice of deciding legal issues separately through
referral to the Office of General Counsel has been stopped. These
issues will now be subject to normal interlocutory appeals (an appeal
during the hearing). The interlocutory appeal process allows a party
to appeal an order or ruling prior to the issuance of the initial
decision by the Presiding Officer. To invoke this procedure, a party
must, within 10 days of service of notice of the ruling or order, file
a written request to the Presiding Officer for certification of the
orders or rulings for appeal on the record. The request must briefly
state the grounds relied upon. It should be noted that the Office of
General Counsel will continue to play a major role in deciding issues
of law.
The Presiding Officer may certify an order or ruling for appeal
to the Administrator only if all 3 of the following requirements are
satisfied:
(1) The appeal involves an important question
on which there is substantial ground for
difference of opinion;
(2) The appeal is necessary to prevent exceptional
delay, expense, or prejudice to the parties; and
(3) Either an immediate appeal will materially
advance the ultimate completion of the pro-
ceeding or the review after the final order
is issued will be inadequate or ineffective.
The Administrator will decline to hear the appeal if he or she
determines that certification was improperly granted.
Within 30 days of their submission, the Administrator will accept
or decline all interlocutory appeals. If the Administrator takes
no action within this time, the appeal will be considered dismissed.
VII-3
-------
If the Presiding Officer declines to certify an order
or ruling for appeal, it may be reviewed by the Administrator
only upon appeal from the initial decision, unless in
exceptional circumstances the Administrator determines upon
motion of a party that to delay review would not be in the
public interest. Such motion must be made within 5 days after
notification of the Presiding Officer's refusal to certify.
Only in exceptional circumstances may the Presiding Offi-
cer stay the proceeding pending a decision by the Administrator
upon the Presiding Officer's grant or denial of certification.
Ordinarily, the interlocutory appeal will be decided on
the basis of the submissions made to the Presiding Officer.
The Administrator may, however, allow briefs and oral argu-
ments. Issues of law will be referred to the General Counsel
for determination, subject to the Administrator's approval.
VII-4
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HELPFUL HINTS FOR EXPEDITING EVIDENTIARY HEARINGS
"There are no inherently protracted cases, only cases
which are unnecessarily protracted by inefficient
procedures and management."
(Foreword to Manual for Complex Litigation, Fourth
Edition)
This is a brief compilation of some ideas for managing contested
cases.
Every participant in litigation has his or her own ideas about how to
handle the case, and extensive literature has been produced that discusses
the problems of delayed action, particularly in the administrative processes
of government. In the final analysis, however, it is attention to the case
by all participants, including lawyers, witnesses, technical and para-
professional assistants, and staff support people, that is most likely to
lead to efficiency.
Checklists serve no function or purpose—in fact, a person's good ideas
about how to staff a case are valueless—unless the checklists are used in ways
that are suited to the individual case and the objectives of the litigation.
Therefore, the following list is nothing more than several ideas that may help
participants to plan the management of cases that are likely to be contested.
• THE MULTIDISCIPLINARY TEAM APPROACH to contested cases is
essential to a successful NPDES matter.
This means that technical professionals who review
applications and prepare draft permits, consul-
tants, technical and scientific support staff,
lawyers, and clerical support and administrative
staffs must all be brought together EARLY and OFTEN
when a particular permit is identified as contro-
versial or is otherwise likely to lead to a request
for hearing. The roles and responsibilities of each
member of the team need to be worked out and agreed
VII-5
-------
upon early in the process. One case manager
should be designated as the person through
whom all information about the case is filtered.
This case manager may be any qualified team
member, until the time a request for hearing
is granted. From this point on, the lead staff
lawyer should ordinarily assume the responsi-
bilities of the case manager. When a lawyer
serves as case manager, a qualified technical
staff member should be designated to head up the
technical/scientific effort and should have the
necessary authority to direct and coordinate
all work done by the technical members of the
team.
FACT SHEETS/STATEMENTS OF BASIS are useful tools for assuring
that all team members have contributed to permit preparation
at an early stage.
Because the Regulations call for a determina-
tion as to whether an extensive Fact Sheet or a
more simple Statement of Basis will be prepared
for every permit, the person responsible for the
determination should call in the entire team to
participate both in the determination and in the
preparation of the appropriate supporting document.
Obviously, less time will be required of the team
if a Statement of Basis is to be prepared. However,
it is no less important that the team participate
in and agree upon the determination that the State-
ment of Basis will be appropriate rather than a more
detailed Fact Sheet. Determinations about which
document will be prepared for a large number of
permits being issued at the same time may be made
by a small committee of qualified staff members.
• WRITTEN TESTIMONY of scientific/technical witnesses, which will
later be required for cases that go to hearing, can be outlined
at the time the Statement of Basis or Fact Sheet is prepared.
If outlines are prepared early, the team will be
able to focus its attention on the issues and on
the support necessary for the case to progress
efficiently.
VII-6
-------
THE ADMINISTRATIVE RECORD, now required for every permit, is
a practical and useful vehicle for ensuring that all documentary
support for the permit is (a) identified and (b) readily avail-
able, before the draft permit is publicly noticed.
The Administrative Record will be assembled
"as-you-go," using a checklist, to ensure that
the file contains support or citations for each
of the conditions or limitations contained in
the permit.
PREHEARING CONFERENCES are an integral and essential part of
the hearing process.
At the time a request for hearing is granted,
agency staff should be prepared to go forward
promptly with a request for a prehearing confer-
ence addressed to the Presiding Officer. If the
agency staff is properly prepared, the early
prehearing conference will allow the main issues
in the case to become clear and will permit a
schedule of work to be arranged to move the case
to an early decision. (For additional suggestions,
see "Proposed Prehearing Order" on p. VII-20.)
• PREPARED TESTIMONY can be assembled far more easily if (a) it
has been outlined early in the process and (b) the entire team
is fully conversant with the issues in the case.
To prepare written testimony for filing before
a hearing is one of the most difficult tasks
facing a participant in a contested case. There
simply are no shortcuts. The task will be
simplified if the team has been assembled early
and has identified the issues for which testimony
needs to be prepared. To circulate draft
testimony "for comment" is not a pleasing notion.
But not having testimony checked (a) to ensure
that the witness has prepared COMPLETE testimony,
i.e., without inadvertent gaps or omissions, or
(b) to "tie in" the testimony with other dependent
witnesses, i.e., as in the case of hypothetical
questions or different aspects of a single issue,
is unthinkable. It should be the function of the
case manager to ensure that prepared testimony is
as complete and accurate as possible. NOTE: The
point being made here is the importance of the
accuracy and completeness of what the witness has
to say. The witness and only the witness has the
final word in what testimony he or she presents,
based upon his or her own personal knowledge,
experience, or expertise.
VII-7
-------
DOCUMENTATION for the permit conditions and limitations
must be identified and cited before the draft permit is
issued.
The regulations no longer allow lately
discovered justification for permit condi-
tions. Consequently, any document that will
assist in explaining or justifying a permit
condition must be identified at the time that
the condition is proposed, prepared, or drafted.
VII-8
-------
[Designation of Trial Staff
and Decisional Body]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE MATTER OF:
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM EVIDENTIARY
HEARING
Permit No.
Ajax Manufacturing Company
Permittee
REGIONAL ADMINISTRATOR'S
DESIGNATION OF
AGENCY TRIAL STAFF
AND DECISIONAL BODY
In accordance with the provisions of 40 C.F.R. Sections
124.77 and 124.78, I hereby designate the following persons
as members of the Agency Trial Staff and Decisional Body,
respectively, for the above identified proceeding:
Agency Trial Staff .
Names
Organizational Affiliations
Addresses
Decisional Body
Names
Organizational Affiliations
Addresses
Dated
Regional Administrator
VII-9
-------
[RA's Order Granting
Evidentiary Hearing and
Notice of Contested/
Uncontested Conditions]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
Re: Permit No.
[124.75]
Regional Administrator's Order
Granting Evidentiary Hearing;and
Notice of Contested and Uncontested [124.75(b)]
Permit Terms and Conditions [124.61(e)]
Dear
This will acknowledge your Request for an Evidentiary Hearing
dated , on the above identified permit.
date
This Order constitutes my decision to
grant/ grant in part/
your Request in accordance with EPA Rules at
deny in part
40 C.F.R. 124.75 and will serve as the specification and notice of
terms and conditions which are contested (and therefore stayed) and
uncontested (and therefore effective) which is required by 40 C.F.R.
124.61(e).
Referring to your Request for Hearing, I have determined to
grant your request as to the following issues:
State issues in language
used by requester
[124.75(a)]
VII-10
-------
I have determined to deny your request as to the following issues
for the reasons stated:
State issues in language
used by requester —
briefly stating reasons
[124.75(d)]
The following terms and conditions of the above identified permit
are contested and the force and effect of these terms and conditions is
stayed pending final Agency action in accordance with 40 C.F.R. 124.61(e)(l)
Specify terms and conditions —
referring to the final permit
The following terms and conditions of the permit are uncontested and
therefore are enforceable obligations of the discharger. (40 C.F.R. 124.61(e))
Specify terms and conditions —
referring to the final permit
Public Notice of this Order granting an Evidentiary Hearing and [124.77]
designation of Agency Trial Staff and members of the decisional body
will be issued in the near future.
Dated
Regional Administrator
VII-11
-------
[Referral to Chief ALJ]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
Honorable
Chief Administrative Law Judge
U.S. Environmental Protection Agency
Washington, D.C. 20460
Re: Evidentiary Hearing
NPDES Permit No.
Ajax Manufacturing Company
Dear Judge :
In accordance with the requirements of 40 C.F.R. Section
124.81, I am referring the above identified proceeding to you
with the request that you assign an Administrative Law Judge
to serve as Presiding Officer.
A copy of the notice of grant of an Evidentiary Hearing
is enclosed. The notice was on
, 19 .
Dated Regional Administrator
VII-12
-------
[Public Notice of
Evidentiary Hearing]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
PUBLIC NOTICE OF EVIDENTIARY HEARING [124.41(h)]
[124.77]
Permit No. Date of Notice
Name of Permittee
Address of Permittee
This is to give notice that on the
date
Regional Administrator a request
granted/granted in part
for an Evidentiary Hearing under EPA rules for the above
identified National Pollutant Discharge Elimination System
(NPDES) Permit. The request for hearing, dated ,
date
was filed by ,
name of party requesting address of party requesting
Further proceedings involving .this Permit will be governed
by EPA's Rules for Decisionmaking which are found at 40 C.F.R.
Part 124 (published in the Federal Register at 44 F.R. 32854 on
June 7, 1979). Copies of these rules are available for inspection
and copying at the Regional Office.
EPA's contact person for information regarding this permit [124.41
(c)(3)]
and from whom copies of the permit, the statement of basis or
fact sheet and the Regional Administrator's order granting the
hearing may be obtained is:
Name
Address
Telephone
The administrative record containing all documents relat- [124.41
(c
ing to the permit is located at
room number and address
VII-13
-------
and is available for public inspection between a.m.
and p.m., Monday through Friday, except holidays.
|~ Section 316(a) information if ~| [124.41(c)
applicable (5>]
Public notice of the draft permit was dated . [124.41(g)
date (1)]
A public hearing on this permit was/was not, held on
date
The purpose of this Evidentiary Hearing is to determine [124.41(g)
(3)]
whether the permit, as it was issued by EPA, should be changed
in the manner suggested by the Request for Hearing. The case
will be assigned to an EPA Administrative Law Judge for hearing
and preparation of an initial decision. The following is a
summary of rules with regard to the Evidentiary Hearing process:
1. Any person seeking to be a party must file a [124.41(h)
request to be admitted as a party to the hearing (4)(i)]
within 15 days of the date of publication of [124.79]
this notice, that is, no later than .
date
2. Any person seeking to be party may propose [124.41(h)
additional material issues of law or fact (4)(ii)]
not already raised by the original requester
or another party.
HOWEVER, under EPA Rules no evidence shall be submitted [124.76]
and no issue shall be raised by any party to a hearing
that was not submitted to or raised in the adminis-
trative record unless good cause is shown for the
failure to submit them.
3. The terms and conditions of the permit at issue may [124.41(h)
be amended after the evidentiary hearing and any (4)(iii)]
person interested in the permit must request to be
a party in order to preserve any right to appeal
or otherwise contest the final administrative
determinat ion.
4. Parties may be represented by counsel or other [124.73(b).
authorized agent or representative.
VII-14
-------
5. The Agency trial staff for this proceeding [124.41(h)(5)]
is composed of the following persons: [124.77]
[124.78]
Names
6. The Decisional Body for this proceeding is [124.41(h)(5)]
composed of the following persons: [124.77]
[124.78]
Names
7. The Regional Hearing Clerk is: [124.41(h)(6)]
Name
Address
Telephone
8. A request to become a party to these proceedings [124.79]
must meet the following requirements:
a) Such requests shall state each legal or [124.74]
factual question alleged to be at issue,
and their relevance to the permit decision,
together with a designation of the specific
factual areas to be adjudicated and the
hearing time estimated to be necessary for
that adjudication.
Information supporting the request or
other written document relied upon to
support the request shall be submitted
unless it is already in the administrative
record.
b) The name, mailing address and telephone number
of the person making such request;
c) A clear and concise factual statement of the
nature and scope of the interest of the
requester;
d) The names and addresses of all persons whom ,
the requester represents; and
e) A statement by the requester that upon motion
of any party or sua sponte by the Presiding
Officer and without cost or expense to any
other party, the requester shall make avail-
able to appear and testify, the following:
i) The requester;
ii) All persons represented by the requester,
and
iii) All officers, directors, employees
consultants and agents of the requester
and the persons represented by the
requester.
VII-15
-------
f) Specific references to the contested
permit terms and conditions, as well
as suggested revised or alternative
permit terms and conditions (not
excluding permit denial) which in
the judgement of the requester, would
be required to implement the purposes
and policies of the Act.
g) In the case of challenges to the
application of control or treatment
technologies identified in the state-
ment of basis or fact sheet, identifi-
cation of the basis for the objection,
and the alternative technologies or
combination of technologies which the
requester believes are necessary to
meet the requirements of the Act.
h) Specific identification of each of the
discharger's obligations which should
be stayed if the request is granted.
If the request contests more than one
permit term or condition then each
obligation which is proposed to be
stayed must be referenced to the
particular contested term warranting
the stay.
VII-16
-------
The following is a general description of the receiving water [124.41
(c)(2)]
and the location of each existing or proposed discharge point and
of the permittee's activities:
The following is a brief description of the permit [124.41
00(3)]
terms and conditions which have been contested and for which
the Evidentiary Hearing has been granted:
VII-17
-------
EX_ PARTE COMMUNICATIONS: [124.78]
No interested person outside the EPA or member of
the EPA trial staff shall make or knowingly cause to
be made to any members of the decisional body an ex parte
communication relevant to the merits of the proceedings.
Nor shall the members of the decisional body initiate such
communications themselves.
"Ex parte communication" means any communication,
whether written or oral, relating to the merits of the
proceeding between the decisional body and an interested
person outside the EPA or the EPA trial staff where such
communication was not originally filed or stated in the
administrative record or in the hearing. Ex parte
communications do not include:
i) Communications between EPA employees
other than between the EPA trial staff
and the members of the decisional body
ii) Discussions between the decisional body
and either
a) Interested persons outside the EPA; or
b) The EPA trial staff;
If all parties have received prior written notice of such
proposed communications and have been given the opportunity
to be present and participate therein.
iii) Communications between EPA employees including
trial staff but not the decisional body and any
persons outside the EPA including interested
persons outside the EPA.
"Interested person outside the EPA" includes the
permit applicant, any person who filed written comments in
the proceedings, any person who requested the hearing, any
VII-18
-------
person who requested to participate or intervene in the
hearing, any participant or party in the hearing and the
attorney of record for such persons.
FILING AND SERVICE:
An original and one (1) copy of all written sub-
missions relating to an evidentiary hearing filed after
the notice of hearing is published shall be filed with
the Regional Hearing Clerk. The party filing any sub-
mission shall serve a copy of such submission upon the
Presiding Officer and each party of record. Service
shall be by mail or personal delivery.
Every submission shall be accompanied by an acknowl-
edgement of service by the person served or proof of service
in the form of a statement of the date, place, time, and
manner of service and the names of the persons served, certified
by the person who made service. (A signed statement that an
attached list of persons were mailed the submission is suf-
ficient to meet the requirements of this paragraph. Certified
mail is not required).
VII-19
-------
[Proposed Prshearing Order]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE MATTER OF:
NATIONAL POLLUTANT DISCHARGE )
ELIMINATION SYSTEM EVIDENTIARY )
HEARING ) PROPOSED
) PREHEARING ORDER
)
Permit No.
Aj ax Manufacturing Company
Permittee
[This form is intended to be used by the Agency Trial Staff as
a checklist of those procedural matters which, if followed, will
greatly expedite the hearing. It applies equally in both Evidentiary
and Nonadversary Hearing cases (the latter where a Trial Staff is
designated). This checklist should be consulted as soon as a Request
for Hearing has been granted and should be reviewed regularly during
preparations for the Hearing.
It is appropriate to draft a Proposed Prehearing Order for consider-
ation by the Presiding Officer at the Prehearing Conference. Where
this is done, the Proposed Order.should be accompanied by. a "Motion
to Adopt Proposed Prehearing Order" and should be filed and served
before the Prehearing Conference. Such a Motion should state that
the Proposed Order represents the position of the Agency Trial Staff
on the matters contained in the Order which position will be asserted
at the Prehearing Conference.
Obviously, Prehearing Conferences can be streamlined and expedited
if the Presiding Officer and other parties to the Hearing are informed
of the Trial Staff's position prior to the Conference.
VII-20
-------
A commendable alternative to this recommended practice is the
submission of a "Proposed Agenda for Prehearing Conference" prior
to the Conference. However, the Proposed Order approach has the
additional benefit of enabling the Trial Staff to come to grips
with its position on the appropriate issues at an early stage and
to articulate the position in a form which may be used conveniently
by the Presiding Officer in preparing the Order required by 124.83(e).]
(e) The Presiding Officer shall prepare [ 124. 83 (e) ]
a written prehearing order reciting the
actions taken at the prehearing
conference and setting forth the
schedule for the hearing, unless a
transcript has been taken and
accurately reflects these matters. The
order shall include a written statement
of the areas of factual agreement and
disagreement and of the methods and
procedures to be used in developing the
evidence and the respective duties of
the parties in connection therewith. This
order shall control the subsequent
course of the hearing unless modified by
the Presiding Officer for good cause
•shown.
§ 124.83 Prehearing conferences.
-{a) The Presiding Officer, sua sponte,
or at the request of any party, may
direct the parties or their attorneys or
duly authorized representatives to
appear at a specified time and place for
one or more conferences before or
during a hearing, or to submit written
proposals or correspond for the purpose
of considering any of the matters set
forth in paragraph (c) of this section.
[NOTE: The Proposed Order format is a convenient method for submitting
the "written proposals" called for by 124.83(a).]
(b) The Presiding Officer shall allow a
reasonable period before the hearing
begins for the orderly completion of all
prehearing procedures and for the
submission and disposition of all
prehearing motions. Where the
circumstances warrant, the Presiding
Officer shall call a prehearing
conference to inquire into the use of
available procedures contemplated by
the parties and the time required for
their completion, to establish a schedule
for their completion, and to set a
tentative date for beginning the hearing.
VII-21
-------
(c) In conferences held, or in
suggestions submitted, under paragraph
(a), the following matters may be
considered:
(1) The necessity or desirability of
simplification, clarification,
amplification or limitation of the issues.
(2) The admission of facts and of the
genuineness of documents, and the
possibility of stipulations with respect to
facts.
(3) The consideration of and ruling
upon objections to the introduction into
evidence at the hearing of any written
testimony, documents, papers, exhibits,
or other submissions proposed by a
party, except that the administrative
record required by § 124.64 shall be
received in evidence subject to the
provisions of J 124.85(d)(2).
Notwithstanding the foregoing, at any
time before the end of the hearing any
party may make, and the Presiding
Officer shall consider and rule upon,
motions to strike testimony or other
evidence other than the administrative
record on the grounds of relevance,
competency or materiality.
(4) The identification of matters of
which official notice may be taken.
(5) The establishment of a schedule
which includes definite or tentative
times for as many of the following as are
deemed necessary and proper by the
Presiding Officer:
(i) The submission of narrative
statements of position on each factual
issue in controversy;
(ii) The submission of written
testimony and documentary evidence
(e.g., affidavits, data, studies, reports
and any other type of written material)
in support of such statements; or
(iii) Written requests to any party for
the production of additional
documentation, data, or other
information relevant and material to the
facts in issue.
(6) The grouping of participants with
substantially like interests for purposes
of eliminating duplicative or repetitive
development of the evidence and
making and arguing motions and
objections.
(7) Such other matters as may
expedite the hearing or aid in the
disposition of the matter.
[NOTE: Each of the above mentioned 7 items may be addressed
appropriately in a Proposed Prehearing Order. In any event,
Counsel ought to be prepared to address each of these issues
(i.e., state a position) at the Prehearing Conference.]
VII-22
-------
(d) At a prehearing conference or
within some reasonable time set by the
Presiding Officer, each party shall make
available to all other parties the names
of experts and other witnesses it
expects to call. At its discretion or at the
request of the Presiding Officer, a party
may include a brief narrative summary
of any witness's anticipated testimony.
Copies of any written testimony,
documents, papers, exhibits, or
materials which a party expects to
introduce into evidence, and the
a~dministrarive record required by
§ 124.64, shall be marked for
identification as ordered by the
Presiding Officer. Witnesses, proposed
written testimony and other evidence
may be added or amended only upon a
finding by the Presiding Officer that
good cause existed for failure to
introduce the additional or amended
material within the time specified by the
Presiding Officer. Agency employees
and consultants shall be made available
as witnesses by the Agency to the same
extent that production of such witnesses
is required of other parties .under
§ 124.74(c)(4). (See also § 124.85(b)(l6)).
[NOTE: Preparation and exchange of witness and exhibit lists
(i.e., lists of exhibits marked for identification) before
the Hearing begins invariably saves hours (and sometimes days)
of valuable hearing time.]
VII-23
-------
[Order on Request
For Intervention]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE MATTER OF:
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM EVIDENTIARY
HEARING
Permit No.
Ajax Manufacturing Company
Permittee
ORDER ON REQUEST
FOR INTERVENTION
Text should recite facts about the
request - an analysis as to whether
the request meets the requirements
of 124.79 (b) (including the require-
ments of 124.74 and 124.76) and an
order granting/denying the request.
Dated
Administrative Law Judge
VII-24
-------
[Motion]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE MATTER OF:
NATIONAL POLLUTANT DISCHARGE )
ELIMINATION SYSTEM EVIDENTIARY )
HEARING ) MOTION FOR
Permit No.
Ajax Manufacturing Company
Permittee
f 124.8S Motions.
(a) Any party may make a motion,
(including a motion to dismiss a
particular claim or a contested issue), to
the Presiding Officer about any matter
relating to the proceeding. All motions
shall be filed and served as provided in
§ 124.80 except those made on the
record during an oral hearing before the
Presiding Officer.
(b) Within 10 days after service of any
written motion, any party to the
proceeding may file a response to the
motion. The time for response may be
shortened to three days or extended for
an additional ten days by the Presiding
Officer for good cause shown.
(c) Notwithstanding § 122.15, any
party may file with the Presiding Officer
a motion seeking to apply to the permit
any regulatory or statutory requirement
issued or made available after the
issuance of the permit under § 124.61.
The Presiding Officer shall grant any
motion to apply a new statutory
requirement unless he or she finds it
contrary to legislative intent. The
Presiding Officer may grant a motion to
apply a new regulatory requirement
where appropriate to carry out the
purposes of the Act, and where no party
would be unduly prejudiced thereby.
VII-25
-------
[NOTE: Properly drawn Motions, when based upon carefully considered
points and authorities, may serve key functions.
Motions provide a convenient vehicle for focusing the attention
of the Presiding Officer and the other parties on one or many issues
which arise before the Hearing begins and which, if decided upon before-
hand, will save hearing time. Motions during the Hearing which involve
important issues often occupy time for parties to prepare responses
and to be heard orally. For important controversial issues which can
be identified early (e.g., grouping of parties, consolidation and sever-
ance, summary determination, production of documents) identification
of issues through Motions will save time at the Hearing for the presen-
tation of facts.]
[NOTE: Memoranda of Points and Authorities in support of a Motion may
be incorporated into the body of the Motion or into a separate Memo-
randum. If included in the body of the Motion, Points and Authorities
should be so labeled. If included in a separate Memorandum, the Memo-
randum should be filed and served with the Motion. The Motion itself
should then refer to the "attached Memorandum."]
VII-26
-------
[Stipulation]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE MATTER OF:
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM EVIDENTIARY
HEARING
Permit No.
Ajax Manufacturing Company
Permittee
STIPULATION
It is hereby stipulated by -and between the Permittee and the
Agency Trial Staff in the above identified proceeding that:
1. Permittee hereby withdraws its request for evidentiary
hearing.
2. The permit involved in this proceeding shall be modified
as follows:
a.
b.
c.
Specify changes by using
carefully drawn amending
language — (e.g., Delete.
Substitute ...) referring
to specific conditions of
the permit.
VH-27
-------
3. This Stipulation shall not bind the Environmental Protection
Agency or have any force or effect or be filed in this proceeding until
approved and signed by the Deputy Assistant Administrator for Water
Enforcement.
Dated by the last signatory hereto:
Date
Ajax Manufacturing Company
By
Title
U.S. Environmental Protection Agency
By
Counsel for Agency Trial Staff
Approved:
Deputy Assistant Administrator
for Water Enforcement
VII-28
-------
PAGE NOT
AVAILABLE
DIGITALLY
-------
CHAPTER VIII
NONADVERSARY
HEARINGS
-------
CHAPTER VIII
SUBPART I—NONADVERSARY PROCEDURES
OVERVIEW
Procedures that are much less adversarial than strict courtroom procedures
will be utilized" for cases involving initial licensing and Section 301(h) modified
permits. In other cases,, the regulations allow permit applications to be processed
under the nonadversary procedure if a party submits a proper request, no objection
is received, and the EPA agrees with the request.
The nonadversary hearings move away from traditional format hearings in which
the EPA and other parties present opposing cases before a single hearing officer.
Instead, a panel of EPA employees, at least two of whom have not taken part in
preparing the draft permit, will be present-at the hearing. The panel members
will have special expertise on the hearing issues and they will question the parties,
subject to the overall control of the proceedings by the Presiding Officer. Panel
membership may, if appropriate, include persons not employed by EPA.
An Agency Trial Staff will not be designated for all panel hearings, though
the regulations allow one to be named if necessary. Instead, the Agency will pre-
pare a draft response to the permit application. The information contained in the
application and the draft response will be the focus of attention at the hearing
in cases involving initial licensing. In other cases, a panel hearing may be held
after a final permit has been issued.
While nonadversary procedure is designed to be nonaccusatory, there are
nevertheless some strict formal requirements which must be met. Just as in the
case of an evidentiary hearing, the Request for Panel Hearing must meet the
VIII-1
-------
requirements of Section 124.74 as to contents of the request. In addition, issues
not raised in the Request for Hearing may not be first raised at the panel hearing
itself; written "comments" (less formal than prepared testimony) must be filed in
advance of the hearing unless a "Motion to Permit Oral Comments" is filed and
granted two weeks prior to the hearing. All parties should be made aware of these
formal requirements lest the formal rules for panel hearings become confused with
the quite informal rules governing public hearings.
The hearing itself will be divided into two stages. In the first stage, the
parties can present their views and arguments to the panel and be questioned by it.
Cross-examination will not be permitted at this stage of the proceeding unless it
is determined that such cross-examination would expedite resolution of the issues.
However, the parties may submit written questions for the Presiding Officer or a
panel member to ask the participants.
Since nonadversary hearings are designed to provide the technical panel and
Presiding Officer (Decisional Body) with facts sufficient for a recommended decision,
it is likely that the panel rather than the parties will conduct most of the
examination or inquiry of witnesses. Should an important area of inquiry be over-
looked, it is likely that the panel will only need to be reminded of the area of
inquiry. It is not likely that cross-examination by a party will be necessary to
draw out the facts in a case where the panel needs to be satisfied on the spot that
the facts are in the record and are adequate to support the issue they are
intended to bear upon.
In the second stage of the proceeding, formal cross-examination may be
allowed if a proper request is submitted. The request must be in writing and
must specify the disputed issues of material fact, whom the party desires to cross-
examine, and an estimate of the time necessary. The Presiding Officer may, instead
•
of granting cross-examination, require alternative means of clarifying the record to
be used. Once again, the main thrust of the panel hearing is to allow the panel,
as decisional body, the greatest flexibility to obtain the facts in the form most
useful to the panel. Should the panel believe, for example, that a written
VIII-2
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supplemental report from a witness will be more useful than further oral
questioning, the report should be called for. The panel may find that the
parties can submit written questions to a witness to elicit information desired.
Because reconvening the hearing for cross-examination will be expensive and
time consuming, there is good reason for the panel to seek imaginative methods
for ensuring completeness of the record.
After the hearing, a recommended decision will be prepared. The recommended
decision will become the final decision of the EPA within 30 days after service,
unless there is a petition for review or the Administrator elects to review it.
If the Administrator does review the decision, he or she may consult with the
Presiding Officer, the panel members, or any other EPA employee in preparing the
final decision.
The decision logic included in this chapter illustrates the key events in
the nonadversary process. Helpful hints for expediting the process and sample
forms are included.
VIII-3
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HELPFUL HINTS FOR EXPEDITING
NONADVERSARY HEARINGS
THE NONADVERSARY HEARING PROCEDURE has been adopted expressly for its
simplicity. The Agency staff — permit writers, technical support staff,
lawyers, and clerical support staff — and the administrative record are
the keys to keeping the procedure simple.
A good administrative record, carefully prepared by the staff,
will ensure efficiency and simplicity in the case. Though the
nonadversary procedure is new to the EPA permit program,
informal hearing procedures are not new to Agency decision-
making. The single most important distinction between more
formal and less formal procedures is the method used for making
a record to support the final decision. In simplest terms,
the nonadversary procedure relies primarily upon written or
documentary support for the permit or for alternatives suggested
by a party to the hearing. The "hearing" portion of the proceeding
is designed exclusively to allow the decisionmakers (Presiding
Officer and Panel) to ask questions of the Agency staff or other
parties, which will clarify the written record or aid the
decisionmakers to better understand the facts. The hearing
then is designed to assist the decisional body rather than to
provide a forum for argument or debate over positions of the
parties.
Simplicity will be ensured; in most cases, there will be no
need for Agency Trial Staff to appear at the hearing if a
thoroughly documented administrative record and a well-
reasoned Fact Sheet or Statement of Basis accompanies the
permit file to the hearing room.
• HELPFUL HINTS FOR EVIDENTIARY HEARINGS apply also to NONADVERSARY
PROCEEDINGS.
While not repeated here, the principles set out in Chapter VII
for evidentiary hearings should be followed for informal pro-
ceedings as well.
VIII-4
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• STAFF WITNESSES who appear before panel hearings should be thoroughly
familiar with those portions of the record for which they have
responsibility.
In many cases, one person will not be able to testify about every
term and condition of the permit. In such cases, each witness
should become acquainted with the entire range of issues in the
case and understand where his or her testimony fits in. The
panel's work will be considerably lessened by this practice.
PANELS OF WITNESS can be used very effectively in nonadversary hearings.
The hearing panel, i.e., Decisional Body, will be able more
readily to have its questions answered by the best qualified
witness if all witnesses on a particular issue are called and
sworn in at the same time. In this way, a witness who can
furnish the answer to a question will be allowed to answer
it immediately rather than having to wait his or her turn
to take the witness stand. The hearing panel should find
such a practice more satisfactory because they will know
in advance that someone will be available at the witness
table to promptly answer any question on an issue under
instruction. This procedure may become all the more impor-
tant in cases where no Agency Trail Staff are present.
VIII-5
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[Public Notice of Panel Hearing]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
PUBLIC NOTICE OF PANEL HEARING [124.116]
[124.41(1)]
[124.41(c)]
Permit No. Date of Notice:
Name and Address of Permittee:
This is to give notice that on the Regional
date
Administrator granted a Request for a Panel Hearing under EPA's rules
for Nonadversary Procedures in connection with the above-identified
National Pollutant Discharge Elimination System (NPDES) Permit. The
request for hearing dated was filed by
date name and address
of party requesting
tor: The hearing in this case is being held by direction 1 [124.114(b)]
of the Regional Administrator. J [124.41 (j) (1)]
Further proceedings involving this Permit will be governed by
EPA's Rules for Decisionmaking which are found at 40 C.F.R. Part 124
(published in the Federal Register at 44 F.R. 32854 on June 7, 1979).
Copies of these rules are available for inspection and copying at the
Regional Office.
VIH-6
-------
EPA's contact person for information regarding this Permit [124.41(c) (3)]
and from whom copies of the draft Permit, the statement of basis
or fact sheet, and the Regional Administrator's Order granting
the hearing may be obtained is:
Name
Address
Telephone
The administrative record containing all documents relating [124.41(c)(4)]
to the Permit is located at
room no. and address
and is available for public inspection between a.m. and
p.m., Monday through Friday, except holidays.
[Section 316(a) information if applicable.] [124.4.(c)(5)]
The purpose of the Panel Hearing is to determine whether
the draft Permit, as prepared by the EPA Staff, should be changed
in the manner suggested by the Request for Hearing.
[OR: Specify the issues identified sua sponte by the R.A.] [124.114(b)(2)]
An EPA Administrative Law Judge will serve as'Presiding [124.119(a)(1)]
Officer for this proceeding and I have determined that the
Presiding Officer will prepare the Recommended Decision in this
case.
[OR: The Regional Administrator will prepare the [124.116]
Recommended Decision in this case.]
[OR: The parties have waived their right to have an [124.119(a)(2)]
Administrative Law Judge serve as Presiding Officer
and a lawyer employed by the
EPA and without prior connection with this proceeding
will serve as Presiding Officer.]
VIII-7
-------
[124.78]
[124.120(b>]
[124.120(b)]
[124.120(b)]
[124.78]
The following persons will serve as members of the technical
panel (Decisional Body).
Name
Address
Area of Expertise
The following EPA employees will provide staff support to
the panel but may not sit as panel members:
Name
Address
~.
I have determined to designate an Agency Trial Staff for this
case. The following persons will serve as Agency Trial Staff:
Name
Address
_ •
[OR: I have determined not to designate an Agency Trial
Staff for this case.]
Your attention is directed to the following Rule on Ex
Parte Communications:
No interested person outside the EPA or member of the EPA [124.78]
Trial Staff shall make or knowingly cause to be made to any members
of the decisional body an ^x parte communication relevant to the
merits of the proceedings. Nor shall members of the decisional body
initiate such communications themselves.
"Ex parte communications" means any communication written or oral
relating to the merits of the proceeding between the decisional body
and an interested person outside the Agency or the Agency Trial Staff
where such sommunication was not originally filed or stated in the
administrative record or in the hearing. Ex parte communications do
not include:
(i) Communications between Agency employees other than between
the Agency Trial Staff and the members of the decisional
body;
VIII-8
-------
(ii) Discussions between the decisional body and
either
(A) Interested persons outside the Agency; or
(B) The Agency Trial Staff;
If all parties have received prior written notice
of such proposed communications and have been given
the opportunity to be present and participate therein.
(iii) Communications between Agency employees including
Trial Staff but not the decisional body and any per-
sons outside the Agency including interested persons
outside the Agency.
"Interested person outside the Agency" includes
the permit applicant, any person who filed written
comments in the proceeding, any person who requested
the hearing, any person who requested to participate
or intervene in the hearing, any participant or party
in the hearing and the attorney of record for such
persons.
The following is a summary of EPA's rules which will apply
to this nonadversary proceeding:
(a) Each person desiring to participate shall file
a motion to participate with the Regional Hearing
Clerk no later than . [124.117(a)]
date [124.41(j)(4>]
[Suggest 15 days from notice.]
(b) Each request shall include:
(1) A brief statement of the interest of the [124.117(a)]
person in the proceeding;
(2) A brief outline of the points to be
addressed;
(3) An estimate of the time required;
(4) The name, mailing address and telephone [124.74(c)
number of the person making such request; ^ 'J
(5) A clear and concise factual statement of
the nature and scope of the interest of
the requester;
VIII-9
-------
(6) The names and addresses of all persons
whom the requester represents; and
(7) A statement by the requester that, upon
motion of any party, or sua sponte by
the Presiding Officer and without cost
or expense to any other party, the re-
quester shall make available to appear
and testify, the following:
(i) The requester;
(ii) All persons represented by the
requester; and
(iii) All officers, directors, employees,
consultants and agents of the re-
quester and the persons represented
by the requester.
(8) Specific references to the contested permit
terms and conditions, as well as suggested
revised or alternative permit terms and con-
ditions (not excluding permit denial) which,
in the judgment of the requester, would be
required to implement the purposes and poli-
cies of the Act.
(9) If the request is submitted by an organi-
zation, a non-binding list of the persons
to take part in the presentation.
(c) At least two weeks before the scheduled date of the
hearing, the Presiding Officer will make a hearing
schedule available and will mail it to each person
who has requested to participate.
(d) All comments on the Draft Permit must be presented [124.118]
as follows:
(1) No later than 30 days before the scheduled
start of the hearing, that is, no later
than , each party shall
date
file all of its comments on the draft per-
mit, based on information in the administra-
tive record and any other information which
is or reasonably could have been available
to that person. All comments shall include
any affidavits, studies, data, tests, or
other materials relied upon for making any
factual statements in the comments.
VIII r 10.
-------
(2) (a) Written comments filed under paragraph (1)
of this section shall constitute the bulk
of the evidence submitted at the hearing.
Oral statements at the hearing should be
brief and in the nature of argument. They
should be restricted either to points that
could not have been made in written comments,
or to emphasizing points which are made in
the comments, but which the participant be-
lieves can be more effectively argued in
the hearing context.
(b) Notwithstanding the foregoing, within two
weeks prior to the deadline specified in
paragraph (a) of this section for the filing
of comments, any party who has filed a re-
quest to participate in the hearing may
move to submit all or part of its comments
orally at the hearing in lieu of submitting
written comments and the Presiding Officer
shall, within one week, grant such motion
if the Presiding Officer finds that such
person will be prejudiced if required to
submit such comments in written form.
(3) Parties to any hearing may submit written
material in response to the comments filed
by other participants under paragraph (1)
of this section at the time they appear
at the panel stage of the hearing.
The Regional Hearing Clerk is: I124.41(j)(6)J
Name
Address
Telephone
Filing and Service; An original and one (1) copy of all written sub-
missions relating to an evidentiary hearing filed after the notice of hearing
is published shall be filed with the Regional Hearing Clerk. The party filing
any submission shall serve a copy of such submission upon the Presiding Offi-
cer and each party of record. Service shall be by mail or personal delivery.
Every submission shall be accompanied by an acknowledgement of service
by the person served or proof of service in the form of a statement of the
date, place, time, and manner of service and the names of the persons served,
certified by the person who made service.
VIII-11
-------
A signed statement that an attached list of persons were mailed the sub-
mission is sufficient to meet the requirements of this paragraph. Certified
mail is not required.
The following is a general description of the applicant's
activities and operations which result in the discharge described
in the Permit Application:
Tl24.41(d)(l)]
[Description]
The following is a general description of the receiving water
and of the location of each existing or proposed discharge point:
[Description]
Dated
Regional Administrator
VI.II-KL2
-------
[RA's Order Granting Nonadversary Hearing]
LIMITED STATES ENVIRONMENTAL PROTECTION AGENCY
• REGION A
402 Permit Street
Discharge, OH 95217
Re: Permit No.
Regional Administrator's Order
Granting Nonadversary Hearing
[124.114]
Dear
This will acknowledge your Request for a Panel Hearing
dated , on the above identified permit.
date
This Order constitutes my decision to
deny in part
at 40 C.F.R. 124.114.
grant/grant in part/
your Request in accordance with EPA Rules
Referring to your Request for Hearing, I have determined to
grant your request as to the following issues:
State issues in language
used by requester
I nave determined to deny your request as to the following
issues for the reasons stated:
State issues in language
used by requester —
Briefly stating reasons
VIII-13
-------
Public Notice of this Order Granting a Panel Hearing [124.116]
[124.120(b)]
and of designation of Agency Trial Staff and members of the
decisional body and a statement of the person who will issue
the recommended decision will be issued in the near future.
Dated Regional Administrator
VIII-14
-------
[Designation of Trial Staff and Decisional
Body if so designated by the Regional
Administrator, see Section 124.120(b)]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE MATTER OF:
NATIONAL POLLUTANT DISCHARGE )
ELIMINATION SYSTEM NONADVERSARY )
HEARING
[Draft] Permit No.
Ajax Manufacturing Company
Permittee
REGIONAL ADMINISTRATOR'S
DESIGNATION OF
AGENCY TRIAL STAFF
AND DECISIONAL BODY
In accordance with the provisions of 40 C.F.R. Sections
124.77 and 124.78, I hereby designate the following persons
as members of the Agency Trial Staff and Decisional Body,
respectively, for the above identified proceeding:
Agency Trial Staff
Names
Organizational Affiliations
Addresses
Decisional Body
Names
Organizational Affiliations
Addresses
Dated
Regional Administrator
' JRB Associates, Inc.
VIII-15
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CHAPTER IX
GENERAL ISSUES
-------
CHAPTER IX—GENERAL ISSUES
OVERVIEW
This chapter will cover a number of miscellaneous provisions of the
regulations that may apply to more than one subpart of Part 124:
• Public access to information
• Delegation of authority
• Time limitations
• Service
• Settlements
• General permits
• Grouping parties
• Production or exchange of documents and data
• Ex parte communications
• New sources.
The new regulations contain provisions for exchange of documents and
data and grouping of parties in evidentiary and panel hearings. An exchange of
documents and data will be permitted if it is deemed necessary and proper by
the Presiding Officer. To avoid duplicative arguments, evidence, and motions
during the hearings, the Presiding Officer also has the authority to group parties
with substantially similar interests.
IX-1
-------
Where service of notice or other pleadings is required, submission shall be
by mail or personal delivery. In addition, if service is by mail, the time limit
specified therein for the person served to do some act will be extended for 3 days.
To encourage expeditious resolution of the issues, the regulations allow
the parties to a hearing to stipulate to those facts in which they are in agree-
ment. However, approval by the Deputy Assistant Administrator for Water Enforce-
ment is required for those stipulations which settle the. case or a major portion
of it.
communication between the decisional body and the Agency Trial Staff or
interested persons outside the Agency which is relevant to the merits of the case
and not: originally filed or stated in the administrative record or in the hearing
is prohibited by the ex parte communications rule, unless all the parties were
given notice and the opportunity to participate therein.
This ex parte prohibition also applies to the nonadversary initial licensing
hearings. However, formal "separation of functions" has been eliminated in this
new procedure. Persons involved in the draft permit may sit on the panel, and
members of the panel may advise the Administrator on appeal.
The new regulations also contain many special provisions for new sources.
Before beginning any on-site construction, potential new sources are required to
submit relevant information to the Regional Administrator , so that he or she can
make a determination on whether the facility is in fact a new source. If the
facility is determined to be a new source, the applicant must also comply with 'the
environmental review requirements of 40 CFR Section 6.900 et seq. Any Environ-
mental Impact Statement prepared and any other applicable factors will be con-
sidered by the Regional Administrator in deciding whether to issue a permit for
a new source and what conditions to put in any such permit,
IX-2
-------
GENERAL PROVISIONS
Public Access to Information [Subpart J]
[124.131]
The following shall be made available to the public
without restriction:
• NPDES permits
• Permit application forms and any attachments that
are used to supply information requested by the
application form
• Effluent data
• State certifications
• Comments of governmental agencies and anyone else
• Draft permits
• Fact sheets/Statements of basis.
It should be noted that in the past, because of inconsis-
tencies in the language of Sections 402(j) and 308, there has
been some confusion as to the confidentiality of information
contained in NPDES permits and permit applications. However,
in March of 1978, the General Counsel issued Class Determination
1-78, entitled Confidentiality of Information in National
Pollution Discharge Elimination System Permits and Permit Appli-
catj-ons Under Section 402 (j) of the Federal Water Pollution Control
Act. This determination states, among other things, that
The NPDES permit application is a standard form
specified by EPA. It asks the applicant to supply
certain specific information. In some cases, there
is insufficient space for the applicant to supply
all of the requested information. In those cases
the applicant attaches additional sheets with the
further information. For purposes of Section 402(j),
the NPDES permit application required to be made
IX-3
-------
public is the application form itself and any
attachments that are used to supply information
requested by the application form. Any informa-
tion obtained by EPA that goes beyond that asked
for in the application, whether submitted by the
applicant or obtained by EPA under authority such
as 40 CFR 125.13 [of the former regulations], is
not considered part of the permit application as
contemplated by Section 402 (j ). This additional
information will be treated in accordance with
the procedures of 40 CFR 2.302.
If an applicant has claimed as confidential any
information contained in the NPDES permit appli-
cation or the NPDES permit, confidential treat-
ment will be denied in accordance with this
Determination and notice given to the applicant
in accordance with 40 CFR 2.205(f).
Delegation of Authority; Time Limitations [Subpart J]
[124.132]
Under Subpart J the Administrator may delegate any of
his or her authority to act to a judicial officer. (This
provision requires clarification because the Administrator
is not compelled to take any action "under this Subpart.")
If the Agency misses deadlines imposed by these regu-
lations, procedural relief, including deadline extensions,
may be granted to a party who shows that it has been
prejudiced by that failure.
IX-4
-------
Service (manner of; additional time)
Service shall be by mail or personal delivery. Every
submission must be accompanied by an acknowledgment of service
by the person served, or proof of service in the form of a
statement of the date, place, time, and manner of service and
the names of persons served, certified by the person who made
service. A signed statement that an attached list of persons
were mailed the submission is sufficient to meet the require-
ments of this regulation. Certifed mail is not required.
In addition, if service is by mail, the time limit speci-
fied therein for the person served to do some act will be ex-
tended 3 days.
[Subpart J]
[124.80]
[124.134]
[124.134]
Settlements
At any time, the parties to a hearing may stipulate to
relevant facts or to settlement. However, all stipulations
which settle an evidentiary or panel hearing in whole or sub-
stantial part will not bind the EPA or have any force or effect,
unless and until such stipulations are approved and signed by
the Deputy Assistant Administrator for Water Enforcement. This
provision obviates the need for approval of stipulations settling
minor issues and facts, while also recognizing that a case which
has been set down for a hearing is apt to involve major issues
of significance to the NPDES program. Hence, approval should
be required for those stipulations which settle the case or a
major portion of it. Stipulations sent in to the Deputy
Assistant Administrator for Water Envorcement for review
and signature should be addressed: Att: Adjudicatory
Hearing Clerk (EN-336), Permits Division, Chief of Water
Enforcement, EPA, 401 M St., S.W., Washington, D.C. 20460.
[Subpart J]
[124.85(d)(6)(e>]
[124.133]
IX-5
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General Permits [122.48]
The EPA or approved states may issue general permits
to control the discharge of pollutants from certain sub-
stantially similar activities located in the same geographic
area. The program is intended to deal with numerous minor
discharges subject to the same limitations and conditions.
The new regulations require the permit-issuing agencies
to designate general permit program areas (GPPA's). The GPPA's
will correspond with existing geographic or political boun-
daries, such as Section 208 planning areas, state highway
systems, and sewer districts. General permits may then be
issued to cover all owners or operators of separate storm
sewers or other categories of point sources within a desig-
nated GPPA, other than those covered by individual NPDES permits.
General permits will be issued directly by the EPA or
approved states without any preceding applications from indi-
vidual owners or operators. They will then be subject to
public notice, comment, and opportunity for a public hearing
under Part 124. No evidentiary or nonadversary panel hear- [124.71]
ings will be held to consider the terms and conditions of these
permits. However, any individual source subject to a general
permit may instead apply for an individual permit, and then
request an evidentiary hearing on the issuance or denial of
an individual permit. Such applications for an individual [122.48(e)(3)]
permit must be submitted no later than 90 days after the
publication of the general permit.
The procedures also provide that sources excluded from
general permit coverage solely because they already have an
individual NPDES permit, may request that the individual
permit be revoked, and that they be covered by the general
permit.
IX-6
-------
The Director may, on his or her own motion, or
upon petition from interested persons, revoke a general
permit and require an individual permit if:
[122.48(e)]
The discharge is a significant contributor of
pollution.
The discharger has not complied with the terms
and conditions of the general permit
There has been a change in the availability of
technology or practices for the control of
pollutants from the particular source
Effluent limitation guidelines are subsequently
promulgated for point sources covered by the
general permit
A Water Quality Management plan containing
requirements applicable to such source is
approved; or
With respect to other minor sources operating
in the area, this source does not;
—involve the same or substantially similar
type of operation
—discharge the same type of wastes
—require the same effluent limitations or
operating conditions, or
—require the same similar monitoring requirements.
[122.48(b)(2)(i)]
The Regional Administrator (but not the State Director)
may require such an individual permit only if there has been
an on-site inspection of the facility which demonstrated
that the source would be more appropriately regulated under
such a permit. Notice should be given to the discharger as
specified in Chapter II of this manual. A national general
permit policy document is presently being drafted to provide
more in-depth guidance for this new approach in permitting.
IX-7
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Grouping Parties [124.83(c)(6)]
The new regulations authorize the Presiding Officer to
group parties with substantially like interests for purposes
of avoiding duplicative evidence, arguments, and motions during
an evidentiary or panel hearing.
Production or Exchange of Documents and Data [124.83(c)(5)(iii)]
[124.83(e)]
Exchange of documents and information may be ordered if [124.119(b)(1)]
it is deemed necessary and proper by the Presiding Officer.
A party may then make a written request to any other party
for the production of additional data or other information
relevant to the facts in issue. Generally speaking, Section
308 provides the EPA with adequate authority to compel pro-
duction of information if necessary. The Freedom of Infor-
mation Act ordinarily provides adequate authority for parties
to obtain information from the EPA.
Ex Parte Communications [124.78]
From the time of notice of the grant of an evidentiary
or panel hearing to the date of final Agency action, any communi-
cation between the decisional body and interested persons outside
the Agency, or between the decisional body and the Agency Trial
Staff is prohibited as an ex parte communication if:
• Relevant to the merits of the case
• Not originally filed or stated in the administrative
record or in the hearing; and
• All parties did not receive prior written notice of
such proposed communication or they were not given
the opportunity to be present at and participate in
the discussion.
IX-8
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The diagram below illustrates and defines the relation-
ships involved in an ex parte communication:
Decisional Body
(any Agency employee reasonably
expected to be involved in the
decision process)
Agency Trial Statf
(any Agency employee designated
by the Agency as available to
investigate, litigate, and
present the evidence and argu-
ments of the Agency in the
hearings)
Interested persons outside
the Agency
(includes the permit applicant,
any person requesting the hearing,
and any party to the hearing)
A June 16, 1978 memorandum from the Administrator entitled
Ex Parte Contacts in NPDES Adjudicatory Hearing Decision, states
The term "interested person outside the agency"
appears in the Sunshine Act, and refers generally
to anyone who has a stake in the outcome of the
proceedings greater than a member of the general
public. The term includes, for instance, all
parties to the hearing and their competitors, public
officials (including elected representatives such
as mayors, Senators, and Congressmen), environmental
and other interest groups, and companies, organiza-
tions or associations with some special interest in
the issues (for example, the Chamber of Commerce or
industry trade associations).
Ex parte communications do not include:
• Communications between Agency employees, other than
those in the decisional body, and interested persons
outside the Agency;
• Communications between Agency employees, other than
between the Agency Trial Staff and members of the
decisional body.
A member of the decisional body who receives or makes an
ex parte communication must file for the public record of the
[124.78(a)(3>]
IX-9
-------
hearing, a memorandum stating the substance of such communi-
cation, as well as submit any written communications. In
addition, upon receipt of such a communication by any member [124.78(b)]
of the decisional body, the person presiding at the hearing
may require the party who knowingly made the communication
to show cause as to why its claim or interest in the pro-
ceeding should not be dismissed, denied, or otherwise adversely
affected.
The rule governing ex parte communications also
applies to nonadversary initial licensing hearings. There-
fore, whenever an Agency Trial Staff is designated, "separation
of functions" in the strict sense will apply. In addition, for
purposes of the rule, the decisional body includes the panel
members whether or not permanently employed by the Agency. The
Regional Administrator may also designate EPA employees who
will provide staff support to the panel, but who may or may
not: serve as panel members. Such persons will also be subject
to the ex parte rules. [124.120(b)]
However, because the decisions involved are complex and [124.120]
policy-dominated, and because the purpose of the panel [124.126]
hearings is to avoid being accusatory in form or substance,
formal "separation of functions" has been eliminated. The
initial licensing procedure allows persons who were involved
in the preparation of the draft permit to sit on the panel, and
allows panel members, the Presiding Officer, or other EPA
employees to advise the Administrator on appeal. This does
not mean that the objective of independent review of a permit
during successive levels of Agency decisionmaking has been
discarded. The regulations have met this objective by requiring
any hearing panel to include at least 2 persons who have not
taken part in preparing the draft permit, and that when the
Administrator reviews a permit, any person assisting him or
her directly in preparing the final decision must be without
substantial prior connection with the matter.
IX-10
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New Sources
A new source is defined in 122.3(v) as "any building,
structure, facility, or installation from which there is or
may be a discharge of pollutants the construction of which
commences:
» After promulgation of standards of performance and
Section 306 of the Clean Water Act which are appli-
cable to such source; or
• After proposal of standards of performance under
Section 306 which are applicable to such source,
but only if the standards are promulgated within
120 days of their proposal."
The regulations contain many special provisions for new sources.
For instance, before beginning any on-site construction, potential
new sources are required to submit relevant information to the
Regional Administrator so that he or she can make a determination
on whether the facility is in fact a new source. Any interested
person may challenge the Regional Administrator's initial determina-
tion by requesting an evidentiary hearing. (For more details on
this provision (124.12), see Chapter II of this manual.)
The criteria and standards for new source determinations
are specified in 122.47(b). A new source will result from
construction of a source on a site:
• Where another source is not located; or
• Where another source is located, provided that the:
—process which causes the discharge from the other
source is totally replaced; or
—construction results in a new or additional discharge.
IX-11
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If the facility is determined to be a new source, the
applicant must comply with the environmental review require-
ments of 40 CFR §6.900 et seq. The Regional Administrator
will determine whether an Environmental Impact Statement (EIS)
is required. If it is determined that an EIS will be prepared,
the public notice of the draft permit will occur at the same
time or after a draft EIS is issued. The EIS will include a [124.31]
recommendation on whether the permit is to be issued or denied.
Any EIS prepared and any other applicable factors listed in
40 CFR §6.920 will be considered by the Regional Administrator
in deciding whether to issue a permit for a new source.
No final permit for a new source will be issued until
at least 30 days dfter the date of issuance of a final EIS if
one is required under 40 CFR §6.916. If an EIS is required, [124.62]
no on-site construction may begin before issuance of a final
permit incorporating appropriate ElS-related requirements, or
before the applicant executes a binding written agreement
calling for compliance with all such requirements, unless the
Regional Administrator determines that construction will not
cause a significant adverse environmental impact. If an EIS
is not required, no on-site construction may begin before 15
days following issuance of a finding of no significant impact,
unless upon a request to begin construction, the Regional
Administrator determines that a finding of no significant
impact will probably be made. If any on-site construction
begins in violation of the above requirements, the Regional
Administrator will advise the owner that it is proceeding with
construction at its own risk, and that such construction acti-
vities constitute grounds for denial of a permit. The Regional
Administrator may also seek a court order to enjoin the
construction. [122.47(c)(4)]
IX-12
-------
In addition, no permit will be issued to a facility which
is a new source if its discharge will:
• Cause or contribute to the violation of water
quality standards if the point of discharge is
located in a segment that was an effluent limi-
tation segment prior to this discharge; or
• Exceed the total pollutant load allocation if
the discharge is into a water quality segment. [122.13(i)]
IX-13
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CHAPTER X
RESOURCE DOCUMENTS
& BIBLIOGRAPHY
-------
CHAPTER X
RESOURCE DOCUMENTS AND BIBLIOGRAPHY
OVERVIEW
The materials provided in this chapter are research aids and tools designed
to assist participants in preparing for and conducting hearings.
The complete text of Parts 122, 123, 124, and 125 is provided as a handy
reference in using this manual.
An index to common NPDES issues and problems is provided with reference to
past decisions of the General Counsel and to the current regulations.
In addition, an annotated bibliography of useful references is provided
which includes such topics as pleading and practice in hearings, evidence, legal
forms, and past decisions and opinions from the EPA General Counsel.
X-l
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TOPICAL INDEX TO DECISIONS OF THE
GENERAL COUNSEL AND THE NPDES REGULATIONS
[This index to common and frequently occurring issues in NPDES permit
proceedings will aid the user in locating, by number, relevant decisions
of the General Counsel in Adjudicatory Proceedings under the 1974
Regulations.]
Issue: Amendments to Permits reflect guideline changes
— OGC .#10,23,27
— Section 122.31(e)(3) and (4)
Issue: "Backsliding"
— Section 122.15(i)
Issue: Best Engineering Judgment [Section 402(a)(D]
— Case by Case Regulation - limitations not included in guidelines
OGC #54
•— Factors for Defining BPT - case by case
OGC #38,40
— Information Requests
Section 308/402(a)(1)
OGC #21,27,32,35,39,43
— Issuance of Permits Prior to Promulgation of NSPS Guidelines
OGC #1,4,9,21,23,32,38,43
— Sections 125.3(c)(2) and 122.15(f)(10)
Issue: Burden of Proof
— OGC #5,23,51
— Section 124.85(a) (see also Section 122.14(1) (4) for burden
of proof in upset proceedings)
X-2
-------
Issue: Certification by State [Section 401]
— Conditions/Limitations due to State Certification
OGC #14,17,25
— Section 124.21 (Subpart C)
Issue: Confidentiality of Section 308 data
— OGC #50
— Section 124.131
Issue: Compliance
— Compliance Dates and Schedules
BPT—OGC #11,23,27.42
— Compliance Steps toward Statutory Goals to be Achieved
after Expiration of Permit
OGC #2
— Enforcement Compliance Status Letters (ECSL's)
OGC #45,47
Issue: Cooling System
— Section 316(b)
OGC #32,41 *
Issue: Corps of Engineers Requirements
— OGC #17,22,27,28
— Section 124.44
Issue: Deadlines — permit extension beyond 7/1/77
— 'OGC #11,26,40,45,47,49
— Part 125, Subpart J
Issue: Discovery/subpoenas
— OGC #23
X-3
-------
Issue: Effluent Guidelines
— Application of Guidelines Promulgated Subsequent to Request
for Evidentiary Hearing
OGC #36,39
U.S. Pipe and Foundry Company
— Use of Promulgated Regulations during Judicial Review
Permit Conditions; Adjudicatory Hearings
OGC #3,23,27,32
— Section 124.86(c) and introductory paragraph to Section 122.15
Issue: Ex Parte Communications
— Section 124.78
Issue': Force Majeur — Conditions beyond control of permittee
— OGC #8,15,32
Issue: Indirect Discharges
— OGC #43 at 200
— Section 122.3(k) and (p)
Issue: Internal Waste Streams (up the pipe)
— OGC #18,27,33,43
— Section 122.16(h)
Issue: Irrigation Return Flow
— OGC #21
— Section 122.3(y) (excluded)
Issue: Issues in Proceedings
— Raising additional issues (discretion) Appeal 75-7 p. 93
Issue: Liability for Violations
— Joint and several liability
OGC #43
X-4
-------
Issue: MaIfunctions
— OGC #1
Issue: Mixing Zones
— OGC #31
Issue: Monitoring
— Frequency, Analytical Methods, Studies
OGC #27,29,39
— (Research Samples), OGC #43 at 212
— Section 122.20
Issue: Navigable Waters
— OGC #7,30,53
— Section 122.3(t)
Issue: New Source Determinations
— OGC #36,51,52
— Section 122.3(v) and 122.47
Issue: Operator Requirements
— OGC #19
Issue: Parties to Proceedings
— Consolidation and Severance
Section 124.82
— Additional parties/issues
Section 124.79/Appeal #75-7
X-5
-------
Issues: Privately Owned Treatment Works
— OGC #43
— Section 122.3(k)
Issues: Removal of In-Place Pollutants
— OGC #40
Issue: Sewers
— Combined Sewers
OGC #48
Issue: Sludge Disposal Requirements in Permits
— OGC #33
— Section 122.15(h)
Issue: Standby Emergency Facilities
— OGC #40
— Section 122.14(k) and (1) upset/bypass
Issue: Stays/Extensions for Adjudication
— OGC #43; Section 124.61
Issue: Stipulations - Consent decrees
— Binding Effect
OGC #2,22,41
— Section 124.133
Issue: Studies
— BAT Studies - Section 308 Authority
OGC #39
Issue: Summary Determination
— Section 124.84
X-6
-------
Issue: Water Quality Standards
— Cost benefitting requirements to meet State water
quality standards
OGC #37
— More stringent than BAT or Guidelines
OGC #2,13,14,16,17,44
Issue: Wells
— Injection Wells
OGC #6,8,18,27,43
— Section 122.41
X-7
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ANNOTATED BIBLIOGRAPHY
I. Hearing Procedure
Ruhlen, M. , Manual for Administrative Law Judges. Washington, B.C.:
The Administrative Conference of the United States. Superintendent of
Documents, U.S. Government Printing Office, Stock No. 052-044-00007-5,
1974. A brief but useful guide to authority, duties, and responsibilities
of Administrative Law Judges. Contains a compendium of suggested forms
for orders. Counsel should refer to this pamphlet as an authoritative
guide to hearing procedures.
Manual for Complex Litigation with Amendments to June 3, 1977, ed. 4. Chicago:
Commerce Clearing House, Inc., 1977. This reference, a successor to the
Handbook of Recommended Procedures for the Trial of Protracted Cases, is
a comprehensive collection of recommended practices and suggested forms
useful for administering the "big case". While directed mainly toward
complex and multidistrict litigation in the Federal courts, the forms
section of the book contains a number of useful checklists for prehearing
orders, which have been used successfully in the district courts. Many
of the suggestions can be applied fully to complicated administrative
litigation.
Frumer, L., Bender's Federal Practice Forms. New York; Matthew Bender and
Company Incorporated, 1951. This 16-volume treatise with annual supplement,
which is a companion to Moore's treatise on Federal Practice, is a very
complete reference to recommended forms used in the Federal courts. The
sections on pleadings and motions are particularly well suited for use
in administrative litigation.
Pedersen, W. , The Decline of Separation of Functions in Regulatory Agencies,
64 Virginia Law Review 991 (1978). A law review article by the principal
author of the nonadversary procedures. Provides legal philosophies behind
his approach.
II. Witnesses
Handbook for the Businessman as a Witness. New York: The United States
Trademark Association, 1974. A highly readable practical bread and butter
pamphlet for both witnesses and counsel. The title should not detract from
the book's value as a tool for technical or scientific expert witnesses.
X-8
-------
III. Evidence
Cleary, E. , ed., McCormick's Handbook of the Law of Evidence, 2nd ed.
St. Paul: West Publishing Co., 1972. A widely used authoritative reference
on the law of evidence. Most useful as a "counsel table" tool. This edition
is not annotated to the Federal Rules of Evidence.
"Federal Rules of Evidence," in Federal Rules, 1979 edition. St. Paul:
West Publishing Co., 1979. A handy counsel table reference to the text
of the Federal Rules of Evidence. While the Federal Rules are not directly
applicable in NPDES hearings, Agency Counsel have, in the past, found
reference to the Rules to be a very convenient and authoritative way of
focusing evidentiary objections and arguments on some concrete statement
of evidentiary principles. Because the Federal Rules of Evidence have
liberalized and modernized many of the old formalistic principles of
evidence, the Rules often offer a completely satisfactory result in debates
on evidence at administrative hearings.
Saltzburg, S. and Redden, K., Federal Rules of Evidence Manual, 2nd ed.
Charlottesville, Virginia: The Michie Company, 1977. This is a thoroughly
annotated and annually supplemented reference to the Federal Rules of
Evidence. It is especially useful as a counsel table guide because it
incorporates editorial comments, Advisory Committee notes, and legislative
history in the annotation to each of the rules. Case citations also
contribute to the usefulness of the manual for research and memorandum
writing.
Gelpe and Tarlock, The Uses of Scientific Information in Environmetnal Decision
Making. 48 S. Cal. L. Rev., 371 (1974).
IV. Substantive NPDES Issues
U.S. Environmental Protection Agency, National Pollutant Discharge Elimina-
tion System Adjudicatory Hearing Proceedings, Decisions of the Administra-
tor and Decisions of the General Counsel. Washington, B.C.: U.S. Environ-
mental Protection Agency, 1976-77. The compendium of OGC Decisions
Nos. 1-36 (Volume 1) and 37-54 (Volume 2) issued in connection with Adjudi-
catory Proceedings from 1974 through December 1976. Individual copies
of Decisions Nos. 55-74, through January 1979, may be obtained from EPA
Headquarters.
Environmental Protection Agency General Counsel Opinions. Chatsworth,
California: NILS Publishing Company, 1979. A two-volume compendium of
EPA General Counsel Opinions, supplemented periodically. These are
written opinions from OGC on legal interpretations of EPA-administered
legislation and programs. They should not be confused with NPDES
decisions of the General Counsel in adjudicatory proceedings.
X-9
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Doglin, E. and Guilbent, T., eds., Federal Environmental Law. St. Paul:
Environmental Law Institute, West Publishing Co., 1974. The chapter on
"The Federal Law of Water Pollution Control" authored by Robert Zener,
former EPA General Counsel, is still an often-cited and definitive refer-
ence to the history of the Federal Water Pollution Control Act Amendments
of 1972 and the early efforts of EPA to implement the statute.
V. General
A Uniform System of Citation, Twelfth Edition. Cambridge, Massachusetts:
The Harvard Law Review Association, 197.6. This is the so-called "Blue
Book". The most frequently used reference to forms for citation in
legal documents such as briefs, memoranda, correspondence, etc.
Wiener, F., Briefing and Arguing Federal Appeals. Washington, B.C.:
The Bureau of National Affairs, Inc., 1967. .This is a widely used text
on brief writing, which is a "must" skill for any trial lawyer. While
devoted primarily to Federal court appellate advocacy, the methods and
approaches recommended for brief writing are quite appropriate for use
in preparing trial briefs and memoranda of law, even at the trial level.
X-10
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INDEX TO NPDES REGULATIONS (PARTS 122-125)
PART 121-STATE CERTIFICATION OF
ACTIVITIES REQUIRING A FEDERAL
LICENSE OR PERMIT
3. 40 CFR Part 121 is redesignated
from 40 CFR Part 123.
4. Part 122 is revised to read as
follows:
PART 122—NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
Subpart A—General
Sec.
122.1 Purpose and scope.
122.2 Law authorizing NPDES permits.
122.3 Definitions.
122.4 Exclusions.
122.5 Signatories.
Subpart B—NPDES Permit Application and
.iMuanca
122.10 Application for a permit.
122.11 Permit issuance; effect of permit.
122.12 Duration of permits and continuation
of expiring permits; Transferability of
permits.
122.13 Prohibitions.
122.14 Conditions applicable to all permits.
122.15 Applicable limitations, standards.
prohibitions, and conditions.
122.16 Calculation and specification of
effluent limitations and standards.
122.17 Schedules of compliance.
Subpart C—Permit Compliance
122.20 Monitoring.
122.21 Recording of monitoring results.
122.22 Reporting of monitoring results and
compliance by permittees.
122.23 Noncompliance reporting.
Subpart D—Permit Modification,
Revocation and Relsauance, and
Termination
122.30 General.
122.31 Modification, revocation and
reissuance, and termination.
Subpart E—Special NPDES Programs
122.40 General.
122.41 Disposal of pollutants into wells, into
publicly owned treatment works or by
land application.
122.42 Concentrated animal feeding
operations.
122.43 Concentrated aquatic animal
production facilities.
122.44 Aquaculture projects.
122.45 Separate storm sewers.
122.46 Silvicultural activities:
122.47 New sources and new dischargers.
122.48 General permit program.
122.49 Special considerations under Federal
law.
Subpart F—Miscellaneous
122.60 Delegation of authority.
Appendix A.—Point Source Categories and
Permit Expiration Dates.
Authority.—Clean Water Act, as amended
by the Clean Water Act of 1977, 33 U.S.C.
1251 et seq; Administrative Procedure Act 5
U.S.C. 551 et seq.
PART 123—STATE PERMIT PROGRAM
REQUIREMENTS
Subpart A—General
Sec.
123.1
123.2
123.3
123.4
123.5
Purpose and scope.
Definitions.
Elements of a program submission.
Program description.
Memorandum of Agreement with the
Secretary for section 404 programs.
123.6 Attorney General's Statement.
123.7 Memorandum of Agreement with the
Regional Administrator.
123.8 Sharing of information.
Subpart B—Requirements of State
Programs
123.11 Requirement to obtain a permit.
123.12 Operational requirements.
123.13 Control of disposal of pollutants into
wells.
123.14 Inspections, monitoring, entry, and
reporting.
Subpart C—Transfer of Information,
Objections to Permits
123.21 Receipt and use of Federal
information.
123.22 Transmission of information to EPA.
123.23 Objections to proposed NPDES
permits.
123.24 Prohibitions.
Subpart D—Enforcement Provisions
123.31 Compliance evaluation programs.
123.32 Enforcement.
Subpart E—Planning and Conflict of
Interest Requirements
123.41 Continuing planning process.
123.42 Asency board membership.
Subpart F—Procedures for Approval of
State Permit Programs
123.51 Section 402 approval process.
123.52 Ser.-tion 404 approval process.
Subpart 0—Revisions to Approved
Programs
123.61 Procedure for revision of State permit
projiiams.
123.62 NPDES program revisions under the
Clean Water Act of 1977.
Authority: Clean Water Act. as amended
by the Clean Water Act of 1977, 33 U.S.C.
1251 et seq.
X-ll
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PART 124—PROCEDURES FOR
DECISIONMAKING REGARDING
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM PERMITS
Subpart A—Applicability
Sec.
124.1
124.2
Purpose-and scope.
Definitions.
Subpart B—The Application Process
124.11 Application for a permit.
124.12 Special previsions for applications
from new sources.
124.13 Requests for modification, revocation
and reissuance, or termination.
124.14 Permits required on a use-by-case
basis.
124.15 Decisions on permit denials and
terminations.
Subpart C—State Certification
124.21 Circulation of applications and draft
permits to certifying States.
124.22 State certification.
124.23 Effect of State certification.
124.24 Special provisions for State
certification and concurrence in
applications for section 301(h)
modifications.
Subpart D— Preparation of a Draft Permit
124.31 Draft permit after application.
124.32 Other draft permits.
124.33 Statement of basis.
124.34 Fact sheet.
124.35 Administrative record for EPA draft
permits.
124.38 Applicabili ty of Subpart D to dra ft
permits incorporating section 301 (h)
modifications.
Subpart E—Public Comment and Hearings
124.41 Public notice regarding permits and
permit hearings.
124.42 Public comments and hearings.
124.43 Obligation to raise points and
provide information during the comment
period.
124.44 Terms requested by the Corps of
Engineers and other governmental
agencies.
124.45 Reopening of comment period.
Subpart F—Special Provisions for
Variances and Statutory Modifications
124.51 Time deadlines for applications for
variances from and modifications of
effluent limitations.
124.52 Decisions on variances and
modifications.
124.53 Procedures for variances and
modifications where EPA is the permit
issuing authority.
124.54 Appeals of modifications and
variances.
124.55 Special provisions for modifying the
secondary treatment requirements under
section 301(h).
124.56 Special procedures for decisions on
thermal variances (section 316(a}|.
Subpart G—Issuance and Effective Date of
Permit
124.Gl Issuance and effective date of permit;
stays.
124.62 Final Environmental Impact
Statement.
124.63' Response to comments.
124.64 Administrative record for final
permit issued by EPA.
Subpart H—Evidentiary Hearings for EPA-
Issued Permits
124.71 Applicability.
124.72 Definitions.
11I4.73 Filing and submission of documents.
124.74 Requests for evidentiary' hearing.
124.75 Decision on request for a hearing.
124.76 Obligation to raise issues and submit
evidence before a final permit is issued.
124.77 Noiice of the grunt of a hearing.
124.7U Ex parte communications.
124.79 Additional parties and issues.
i;M.80 Filing and service.
124.81 Assignment of Administrative Law
Judge.
124.02 Consolidation and severance.
124.93 Prohearing conferences.
124.64 Summary determination.
124.85 Hearing procedure.
124.8G Motions.
124.87 Record of hearings.
124.88 Proposed findings of fact and
conclusions: brief.
124.89 Decisions.
124.90 Interlocutory appeal.
124.101 Appeal to the Administrator.
Subpart I—Non-Adversary Procedures for
Initial Licensing
124.111 Applicability.
124.112 Relation of other Subparts.
124.113 Public notice regarding draft permits
and permit conditions.
124.114 Hearinxs.
124.115 Effect of denial or absence of
request for hearing.
124.116 Notice of hearing.
124.117 Request to participate in heating.
124.118 Submission of written comments on
draft permit.
124.119 Presiding Officer.
124.120 Panel hearing.
124.121 Opportunity for cross-examination.
124.122 Record for final permit.
124.123 Filing of brief, proposed findings of
fact and conclusions of law and
proposed modified permit.
124.124 Recommended decision.
124.125 Appeal from or review of
recommended decision.
124.126 Final decision.
124.127 Final decision if there is no review.
Subpart J—Miscellaneous
124.131 Public access to information.
124.132 Delegation of authority; time
limitations.
124.133 EPA Headquarters' approval of
stipulation or consent agreement.
124.134 Additional time after service by
mail.
124.135 Effective date of Part 124.
Authority.—Clean Water Act, as amended
by the Clean Water Act of 1977. 33 U.S.C.
1251 et seq; Administrative Procedure Act, 5
U.S.C. 551 et seq.
X-12
-------
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
Subpart A—Criteria and Standards for
Imposing Technology-Based Treatment
Requirements Under Section 301(b) of the
Act
Sec.
125.1 Purpose and scope.
125.2 Definitions.
125.3 Technology-based treatment
requirements in permits.
Subpart B—Criteria for Issuance of Permits
to Aquacufture Projects
Purpose and scope.
Criteria.
125.10
125.11
Subpart C—Criteria for Extending
Compliance Dates for Facilities Installing
Innovative Technology Under Section
301(k) of the Act [Reserved]
Subpart D—Criteria and Standards for
Determining Fundamentally Different
Factors Under Sections 301(b)(1MA),
301(b)(2) (A) and (E), and 307(b) of the Act
125.30 Purpose and scope.
125.31 Criteria.
125.32 Method of application.
Subpart E—Criteria for Granting Economic
Variances From Best Available Technology
Economically Achievable Under Section
301(c) of the Act [Reserved]
Subpart F—Criteria for Granting Water
Quality Related Variances Under Section
301(g) of the Act [Reserved]
Subpart G—Criteria for Modifying the
Secondary Treatment Requirement Under
Section 301(h) of the Act [Reserved]
Subpart H—Criteria for Determining
Alternative Effluent Limitations Under
Section 316(a) of the Act
125.70 Purpose and scope.
125.71 Definitions.
125.72 Early screening of applications for
section 316(a) variances.
125.73 Criteria and standards for the
determination of alternative effluent
limitations under section 316(a).
Subpart I—Criteria Applicable To Cooling
Water Intake Structures Under Section
316(b) of the Act [Reserved]
Subpart J—Criteria for Extending
Compliance Dates Under Section 301(1) of
the Act
125.90 Purpose and scope.
125.91 Definition.
125.92 Requests for permit modification and
issuance under section 301(i)[l) of the
Act.
125.93 Criteria for permit modification and
issuance under section 301(i)(l) of the
Act
125.94 Permit terms and conditions under
section 301(i)(l) of the Act.
125.95 Requests for permit modification or
issuance under section 301(i)(2) of the
Act
125.96 Criteria for permit modification or
issuance under section 301(i)(2) of the
Act.
125.97 Permit terms and conditions under
section 301(i)(2) of the Act
Subpart K—Criteria and Standards for Best
Management Practices Under Section
304(e) of the Act
125.100 Purpose and scope.
125.101 Definition.
125.102 Applicability of best management
practices.
125.103 'Permit terms and condition*.
125.104 Best management practices
programs.
Subpart L—Criteria and Standards for
Imposing Conditions for the Disposal of
Sewage Sludge Under Section 405 of the
Act [Reserved]
Subpart M—Ocean Dumping Criteria Under
Section 403 of the Act [Reserved]
Authority: Clean Water Act. as amended
by the Clean-Water Act of 1977, 33 U.S.C.
1251 et seq.
X-13
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If- . s
Thursday
June 7, 1979
Part II
Environmental
Protection Agency
National Pollutant Discharge Elimination
System; Revision of Regulations
-------
32854 Federal Register / Vol. 44, No. Ill / Thursday, June 7,1979 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Pails ^ 115,121,122,123,124,
125, 402, an<* 403
[FRLrzof-2J
National Pollutant Discharge
Elimination System; Revision of
Regulations
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This rule extensively revises
the existing regulations governing the
National Pollutant Discharge
Elimination System (NPDES) program
for three purposes:
(1) To clarify and improve existing
program regulations and procedures in
light of past experience;
(2) To fill 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
(3) To make the regulatory changes
which are necessary under the 1977
amendments to the Clean Water Act.
DATES: These regulations will be
considered issued for purposes of
judicial review at 1:00 p.m. eastern time
on June 14,1979. If such date is a
Federal holiday, the issuance date will
be considered to be 1:00 p.m. eastern
time on the next day after the seventh
day which is not a Federal holiday.
Parts 121,122,123,125 and 403 of this
regulation shall be effective August 13,
1979. Part 124 is effective as provided in
§ 124.135. In order to assist EPA to
correct typographical errors, incorrect
cross-references, and similar technical
errors, comments of a technical and
nonsubstantive nature on this final
regulation may be submitted not later
than August 13,1979. However, the
effec.tive dates will not be delayed by
consideration of such comments.
FOR FURTHER INFORMATION CONTACT:
Edward A. Kramer (EN-336), Office of
Water Enforcement, Environmental
Protection Agency, Washington, DC
20460 [202-755-0750).
SUPPLEMENTARY INFORMATION:
Background
The Federal Water Pollution Control
Act Amendments of 1972 established the
National Pollutant Discharge
Elimination System (NPDES) permit
program. Shortly after, in December 1972
and May 1973, EPA promulgated
regulations outling the NPDES program
in two Parts. 40 CFR Part 124
established substantive requirements for
approved State NPDES programs, while
Part 125 established the similar
requirements of the EPA permit
program. These two Parts, revised
several times, are the existing NPDES
regulations which remain in force until
the effective date of these regulations
published today.
In 1977, a new phase of the NPDES
program began, prompted by several
developments. First, five years of
experience with dischargers, approved
NPDES States, and the courts had been
gained. Second, the "first round" of
NPDES permits, issued for a term of five
years, were beginning to expire. Third, a
major statutory deadline (July 1,1977)
had passed, and the 1983 deadline for
achievement of more stringent treatment
requirements became the new program
goal, along with an increased emphasis
on the control of toxic and hazardous
pollutants. In late 1977, Congress
enacted the Clean Water Act of 1977,
making several significant changes in
the scope and direction of the NPDES
program. These changes include:
revisions of the 1983 treatment
requirements for industrial dischargers;
extensions of the 1977 treatment
deadline for certain municipal and
industrial dischargers; provisions for
certain variances from technology-based
treatment requirements; recognition of
the Consent Decree in NRDC v. Train, 8
ERG 2120 (D.D.C. 1976); requirements for
best management practices in certain
industrial permits; provision for control
of sewage sludge disposal in NPDES
permits; provision for EPA to issue
permits if it objects to a State NPDES
permit; and authorization of State
assumption of the permit programs
under sections 318, 404, and 405.
In addition to the need for regulatory
revisions to address these major
developments, the former regulations
had to be amended and reorganized
because they had become unwieldy. On
one hand, much needless duplication of
the basic substantive and procedural
requirements between the former State
and Federal NPDES program regulations
can be eliminated. Under the regulations
published today, the basic substantive
and procedural requirements applicable
to all permits are set forth in Parts 122
and 124. Part 123, which establishes
State Permit Program Requirements,
cross-references provisions from those
Parts which are applicable to State
programs. EPA believes that this new
structure will help to simplify the
regulations for use by permittees, the
States, and the public, and will avoid
inconsistencies between State and
Federal programs.
Parts of the former NPDES regulations
were either too terse to provide
meaningful guidance or left significant
permit-related issues unaddressed. For
example, in many situations the former
regulations governing adjudicatory
hearings provided inadequate assistance
or direction to Presiding Officers or the
parties. Based upon several years of
experience accumulated by EPA in
conducting these hearings, the
regulations published today for Part 124
provide more detailed procedures better
tailored to result in responsible,
informed permit issuance decisions.
Similarly, and for the same purpose, the
regulations published today for Parts 122
and 125 provide guidance on substantive
questions formerly unaddressed in
regulations.
Accordingly, five new Parts of Title
40, incorporating all of existing Parts
115,122,123,124,125 and 402, as well as
portions of § 6.900, are established as
follows: '
• PART 121—STATE CERTIFICATION
OF ACTIVITIES REQUIRING A
FEDERAL LICENSE OR PERMIT
• PART 122—NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
• PART 123—STATE PERMIT
PROGRAM REQUIREMENTS
• PART 124—PROCEDURES FOR
DECISIONMAKING REGARDING
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM PERMITS
• PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
A "Guide to the NPDES Regulations"
which describes the regulations has
been prepared and is available by
writing the Environmental Protection
Agency, Public Information Center (PM-
215), 401 M Street, S.W., Washington,
D.C. 20460.
These regulations were proposed on
August 21,1978, (43 FR 37078).
Originally, the comment period on.the
proposed regulations was to have ended
on October 20,1978. However, based on
many requests from the public, the
comment period was extended to
November 20,1978 (43 FR 47213,
October 13,1978). During the comment
period, two public meetings were held:
one in Washington, D.C. and one in San
Francisco. Over 100 people attended
each meeting and over 500 letters were
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Federal Register /Vol. 44. No. Ill / Thursday. June 7, 1979 / Rules and Regulations 32855
submitted containing thousands of
comments. Comments were catalogued
and summarized for each section of the
proposal. These final regulations revise
the proposed regulations based on
comments received. A summary of
comments received and the bases for
revisions are discussed later in this
preamble. •
In addition to the August 21,1978
proposal, EPA published other
regulations governing specific portions
of the NPDES program. These
regulations were promulgated
separately from the August 21,1978 core
package because of statutory deadlines
for application by permittees for certain
extensions and modifications or because
of other pressing needs. The following
table'summarizes all regulations
recently published by EPA concerning
the NPDES program. Except as noted in
the table, these separately published
regulations have been incorporated into
this final rule.
Table I
FEDERAL REGISTER Date
Feb. 4. 1977 (42 FR 6846)
Apr. 25, 1978 (43 FR 17484)._.
May 16. 1978 (43 FR 21266)__
May 23, 1978 (43 FR 22160) —
June 26. 1978 (43 FR 27736)._..
Aug. 21. 1978 (43 FR 37078)
Sept 1, 1878 (43 FR 39282)
Status of
Summary of regulation regulations as
of last
publfcatjoo
Genera/ Permit Program. Proposed estab- Proposed
Bsnment of a new general program cover- Rule.
ing point source Discharges.
— 30KM Modfications. Proposed establish- Proposed
ment of criteria, standards and procedures Rule.
for granting 301(h) permit modifications to
the secondary treatment requirements for
certain ocean discharges.
30nn Extensions. Establishes criteria for Interim Final
granting extensions for compliance with Rule.
1977 statutory deadline for muraopaf treat-
ment requirements and industries planning
to connect to these treatment systems
and a method for incorporating these ex-
tensions in the NPDES program.
_ Veto/Modification. Revised Parts 124 and Final Rule
125 of EPA regulations to clarify the pro-
cedures and criteria which EPA win use in
exercising its authority to- object to (veto)
the issuance of State NPDES permits and
to require modification of permits to incor-
porate SAT/Toxic requirements in accord-
ance with NRDC Consent Decree of June
8. 1976.
... Fretnatment Pretreatment regulations to Final Rule .
control the introduction of non-domestic
wastes into municipal treatment plants.
.... NPDES Regulations Proposed revision to the Proposed
NPDES regulations Rule.
_ Best Management Practices. Proposed es- Proposed
taMshment of new controls on toxic and Rule.
Comments
Incorporated in final rule.
primarily at 5 122.48.
Procedures incorporated into
Part .124. Subpart G, of Part
125 reserved for standards
and criteria.
Incorporated in final rule as
Subpart J of Part 125.
Veto regulations incorporated
in final rule at J 123.23.
Modification regulations
incorporated in final rule at
5 122.15
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
Appeals for the Third Circuit. In
American Iron and Steel Institute \.
EPA (AISIII), 543 F.2d 521 (3rd Cir.
1976), the court held that "net/gross"
provisions of NPDES regulations (which
currently appear, in amended form, as
§ 122.16 (!) and (g) of these regulations)
are not reviewable in the abstract, but
become reviewable either in the context
of individual effluent limitations
guidelines or NPDES permit issuance.
A/5///at 528.
EPA agrees with the Court's analysis
in AISIII. Today's regulations will be
reviewable when NPDES permits are
issued. A very few, such as net/gross
provisions, may also become reviewable
when effluent limitations guidelines are
promulgated. None are reviewable now
in the Courts of Appeals.
There remains a question not
addressed by the AISIII decision: Is
review of these regulations available in
District Courts? EPA believes that
District Court review is not available
now. Two of the reasons cited in AISIII
for the unavailability of Court of
Appeals review similarly militate
against District Court review: The
absence of a factual context to focus
review, and the absence of a concrete
record to aid the reviewing court; AISIII
at 528. Moreover, the absence of
immediate effect on the discharger and
other parties points persuasively to a
conclusion that today's regulations are
not ripe for review in either the District
Courts or the Courts of Appeals. As the
Supreme Court stated in Toilet Goods
Ass'n. v. Gardner, 387 U.S. 158,165
(1967) the challenged regulations:
would at most lead only to ... a
determination that can then be promptly
challenged through an administrative
procedure, which in turn is reviewable by a
court Such review will provide an adequate
forum for testing the regulation in a concrete
situation. [Footnotes omitted.]
EPA believes, for the same reasons,
that the NPDES regulations should be
reviewed in the concrete context of
permit issuance proceedings. See
Diamond Shamrock Corp. v. Costle, 580
F. 2d 670 (D.C. Cir. 1978).
Issuance Date of the Regulations
EPA further wishes to point out that
the NPDES regulations will not be
considered issued for the purpose of
judicial review (if available at this time)
until 1:00 p.m. eastern time, 7 days after
publication in the Federal Register (June
14,1979). EPA published notice of this
intent to have a delayed issuance date
on May 1,1979, 44 FR 25475. The
regulations will not become effective
until 60 days from that issuance date
(August 13,1979) except for Part 124
which will be 120 days (October 12,
1979). In addition, due to the length of
NPDES regulations and the number of
cross-references, EPA will accept
nonsubstantitive comments (e.g.^
typographical errors, incorrect cross-
references, missing lines, etc.) during
this same 60-day period. This
nonsubstantive comment period will not
affect the effective date of the NPDES
regulations.
Overview of These Regulations ~
/. Part 121—State Certification of
Activities Requiring a Federal License
or Permit
A. What Does This Part Do? Part 121
contains State certification procedures
and requirements applicable to all
Federal Licenses and permits other than
NPDES.
B. How Does This Part Relate to
Existing Regulations? The existing State
certification regulations predate the
Federal Water Pollution Control Act
Amendments of 1972 and have never
been updated. However, because of the
impact of State certification of non-
NPDES permits on a myriad of Federal
programs, it will be necessary to consult
with the affected agencies in some detail
before changes are made. State
certification of Federal licenses or
permits other than NPDES will continue
unchanged. This Part merely
redesignates the existing regulations,
formerly 40 CFR123, as Part 121. State
Certification of NPDES permits is
discussed in the overview of Part 124.
C. How Does This Part Relate to the
August 21,1978 Proposed Regulations?
The August 21,1978 proposal
inadvertently deleted existing State
certification regulations. Thft deletion
was noted in a comment from the public.
In response to the comment, this Part
has been retained.
//. Part 122—National Pollutant
Discharge Elimination System
A. What Does This Part Do? 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.
B. How Does This Part Relate To
Existing Regulations? The former
regulations contain separate NPDES
program requirements for approved
States (40 CFR Part 124) and for EPA (40
CFR Part 125). The majority of
provisions under former Parts 124 and
125 are duplicative. To eliminate this
duplication, the NPDES program
requirements applicable to both EPA
and approved States have now been -
consolidated into one set of regulations
in Part 122. The process for approval of
a State program to administer the -
NPDES is in a separate Part (see Part
123 below), which cross-references the
applicable substantive requirements of
Part 122.
Part 122 regulations reflect significant
developments which have occurred
since the NPDES program began.
Furthermore, provisions of the former
regulations have been reorganized and
rewritten. New regulations have been
included where the former regulations
do not adequately address the
requirements of the Act (i.e., where
court decisions have altered aspects of
the NPDES program, where EPA
guidance for administration of the
NPDES program was not previously
incorporated into regulations, and where
experience in administering the program
has highlighted gaps in effective
implementation of the Act). Finally,
certain revisions have been made to
conform the NPDES program to
provisions of the 1977 amendments to
the Clean Water Act.
C. How Does This Part Relate to the
August 21,1978 Proposed Regulations?
The following is a discussion of the
significant comments received and the
basis for revisions made to Part 122 of
the proposed regulations. Minor
editorial changes have been made in all
sections.
§ 222.3 Definitions.
Il22.3(f) Definition of "best
management practices ".
Many commenters indicated
confusion as to the relationship between
best management practices mandated
under section 304(e) of the Act and best
management practices which might be
required under other authorities (e.g.,
through section 401 State certification;
pursuant to section 208(e) for water
quality management plan requirements;
where effluent limitations are
inappropriate or infeasible to control
plant source discharges in accordance
with NRDC v. Costle (Runoff Point
Sources) 568 F.2d 1369 (D.C. Cir. 1977)).
To clarify this point, it should be noted
that the definition of best management
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32857
practices in paragraph (f), while adapted
from section 304(e) language and
legislative history, applies to uses of the
term "under any or all authorities."
Thus, the term has beemised to reflect
section 304(e) as well as requirements
imposed under section 402(a)(l) in
accordance with the Runoff Point
Sources decision in NRDC v. Costle.
Several commenters also noted that
the legislative history of section 304(e)
specifically excludes actual plant
process design and related operating
decisions from the definition of best
management practices. EPA agrees, and
has revised the definition to include this
limitation authority under section 304(e).
§ 122.3(k) (proposed %122.3(j))
Definition of "discharge of a pollutant".
Many commenters disagreed with one
or more of the types of activities
included within the definition of a
"discharge of a pollutant" in proposed
paragraph (j). In response, the following
revisions and clarifications have been
incorporated into the final regulations.
First, the regulations have been
clarified to. indicate that a discharge to a
pipe is not, in and of itself, a discharge
of pollutants subject to the permit
program. A discharge to a pipe must
ultimately reach navigable waters in
order to fall within the purview of the
NPDES requirements.
Second, a number of comments
questioned the statutory authority for
the requirement in the proposed
§ 122.3fj} that classified a discharge
through a State or municipally owned
treatment system as a direct discharge,
if that treatment system was not
designed and constructed to meet the
"applicable requirements of section
301(b) of the Act." These commenters
argued that this provision placed an
undue burden on industrial users of
State/municipal treatment systems and
that this method of control was beyond
authority granted EPA by the Act
EPA has changed this requirement in
response to these comments, although
the Agency believes that the proposed
regulations were within its authority.
This provision hi revised § 122.3(k) now
defines as a "discharge of a pollutant"
only those discharges into pipes which
do not lead to a treatment system, but
rather into waters of the United States.
On the other hand, a discharger
discharging into a storm sewer or other
publicly owned conveyance which does
not lead to a publicly owned treatment
works, but directly to navigable waters,
is clearly subject to the permit
requirement. See United States v.
Granite State Packing Co., 343 F. Supp.
57 (D.N.H.1972], aff'd., 470 F.2d 303 (1st
Cir. 1972). The final regulations continue
to reflect this requirement.
Third, the provision in the proposed
definition_of "discharge of pollutant,"
which stated that discharges through
State or municipal systems handling
primarily industrial wastes be
considered direct discharges has been
deleted in response to comments. Many
commenters considered the proposed
approach to be unwieldly and
inconsistent with the language of the
Act regarding publicly owned treatment
works (POTWs). This provision was
intended to allow a more equitable
control of compatible wastes
(biochemical oxygen demand (BOD) and
suspended solids (SS)} which are
discharged into POTWs by industries
(incompatible industrial wastes are
controlled through the pretreatment
regulations, 40 CFR Part 403). At
present, POTWs are required by the Act
to achieve, at a minimum, the effluent
quality attainable through the
application of secondary treatment. The
secondary treatment information
regulation (40 CFR Part 133) controls
concentration and percent removal of
BOD and SS, pollutant parameters
normally associated with domestic
wastes. However, many POTWs receive
and treat large amounts of industrial
waste. The secondary treatment
information regulation does not
completely address compatible
industrial waste; 40 CFR § 133.103(b)
only allows an upward adjustment of
the concentration limits where the
effluent limitation guidelines, which
. would be applicable to the industry if it
were a direct discharger, are less
stringent than secondary treatment. 40
CFR 133 does not allow for more
stringent concentration limits where
industrial effluent limitations guidelines
are more stringent. Nor does the
secondary treatment regulation allow
for any adjustment of the 85% removal
requirement The proposed provision
would have allowed EPA to address
these two areas and we continue to
believe that it is supportable under the
Act. However, we do agree with those
commenters who said that such a
provision would be very unwieldly and
would make permit writing under these
circumstances a very difficult task.
Therefore, we have deleted this
provision and intend to deal with these
issues by revising the definition of
secondary treatment or alternatively,
covering these areas in a revision to the
definition of best practicable waste
treatment technology.
Further, a number of commenters
objected to the provision which included
discharges through pipes, sewers or
other conveyances owned by third
parties other than a State or
municipality as direct discharges. These
commenters argued that such
discharges, at a minimum, should be
considered to be discharges through
treatment systems. In addition, many
commenters questioned the statutory
authority and practicability of such a
provision.
EPA has revised this provision to
indicate that discharges through"
privately owned treatment systems are
direct discharges. Moreover, EPA
continues to believe that adequate
authority exists for such a provision.
This provision reflects EPA's
interpretation of the Act in the Decision
of the General Counsel No. 43
(Friendwood Development Company).
Nevertheless, EPA does not intend for
this requirement to result in many
permits for a single discharge point. To
avoid-the administrative problems
caused by multiple permits, EPA
recommends the issuance of a single
permit to all users as well as the control
or treatment facility, with all parties
listed as permittees and with joint and
several liability for obligations under the
permit.
Finally, a number of commenters
argued that the inclusion of surface
runoff channelized into point sources in
the proposed definition of "discharge of
a pollutant" was overreaching in light of
the statutory exclusion of irrigation
return flows. Many commenters also
argued that the definition was confusing
when read in conjunction with proposed
§ 122.4 (Exclusions), § 122.45 (Separate
storm sewers), and § 122.46
(Silvicultural activities). This definition
has not been changed. The concerns of
the commenters have been addressed
through revisions to § 122.4, § 122.45,
and § 122.46. For further details see
discussion on these sections later in this
preamble.
§ 122.3(1) (proposed § 122.3(K))
Definition of "discharge monitoring
report".
A number of comments were received
on the proposed definition of "discharge
monitoring report." Some argued that
the definition should allow more
flexibility to States in development of a
form for reporting of self-monitoring
results by permittees. Other commenters
argued that EPA standard national
forms for Discharge Monitoring Reports
should be used both by EPA and by
approved States. EPA was persuaded by
the latter arguments and has changed
the definition to require the use of
standard national forms by both EPA
and approved NPDES States. This will
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32858 Federal Register / Vol. 44. No. Ill / Thursday. June 7. 1979 / Rules and Regulations
facilitate the use of computer systems
designed to directly read and analyze
the reported information. It will also
increase the ability of all program -
offices within EPA to share such
information. EPA will provide the States
with preprinted standard forms (States
may substitute their name, logo, etc. on
these forms) and will also provide
necessary computer software.
§ 122.3(1) (Proposed § 122.3(s))
Definition of "navigable waters".
The definition of "navigable waters"
has been slightly revised to clarify its
intent and scope, but the basic thrust
and coverage remain the same as in the
proposed rules.
Some commenters suggested that EPA
exclude certain types of impoundments
of navigable waters from the definition,
such as holding ponds, cooling ponds,
and closed cycle lagoons. Under some
circumstances, it is appropriate to
impound navigable streams in order to
create a cooling pond or lake. EPA does
not mean to prohibit this practice and
applicable regulations specifically
recognize this use and specify where it
is allowable to comply with technology-
based regulations. For example, in 40
CFR § 423.11 (m) and (n), the terms
"cooling pond" and "cooling lake" are
distinguished. A "cooling pond" may
under some circumstances be navigable
waters, but usually is not. A "cooling
lake" is always a navigable water. Yet
in either case affluent guidelines
explicitly recognize some circumstances
in which it is appropriate to use such
impoundments for treatment. (Compare
40 CFR § 423.13(1){3) with 40 CFR
§ 423.15(1)(2)). These are exceptional
cases, however. In general, the Act's
requirements must be met at the point of
discharge into navigable waters.
Some commenters suggested that
waste treatment systems be excluded
from the definition of navigable waters.
EPA disagrees with this comment where
cooling ponds are involved. Such ponds
are frequently extremely large in size
and some harbor fish populations which
invite recreational uses. If such ponds
are opened for recreational use,
recreational users of the previously non-
navigable waters could be exposed to
potentially harmful effects where, for'
example, fish are contaminated and
consumed by such users. EPA believes
this use should remain subject to control
under the Act's regulatory provisions,
and that such broad jurisdiction is
consistent with the thrust of the Act and
its legislative history.
Use by industries in interstate
commerce. Some controversy has
centered around the question of what
waters are defined as "waters of the
United States" because of use by
industries in interstate commerce for .
industrial purposes. The Decision of the
General Counsel No. 73 concluded that
the definition in the previous regulations
required actual use by an industrial user
downstream from the discharger. Since
there were no users downstream-from
the discharging industry, the stream in
question was found not to be waters of
the United States. The opinion explicitly
stated, however, that it was based upon
the regulations, not the Act, and left
open the question whether EPA was free
to adopt a broader definition tied to the
susceptibility of the stream of use by
industries in interstate commerce:
These regulations are intended to
broaden the definition of waters of the
United States in the manner suggested
by Decision No. 73. Waters will be
considered to be'waters of the United
States not only if they are actually used,
but also if they may be susceptible to
use, for industrial purposes by industries
hi interstate commerce. Thus the
regulations now focus, not on the nature
of the stream's users, but on the
characteristics of the stream itself, and
it will no longer be necessary to show
actual industrial use for a stream to fall
within the definition.
On the other hand, except for cooling
ponds which meet the criteria for
"waters of the United States" (such as,
for example, those which are used for
fishing or other recreational purposes by
interstate travelers), EPA agrees with a
frequently encountered comment that
waste treatment lagoons or other waste
treatment systems should not be
considered waters of the United States.
Accordingly, the definition has been
revised to exclude such treatment
systems.
Moreover, if any portion of a stream is
used or susceptible to_use by industries
hi commerce, the entire stream is waters
of the United States. As an example,
assume that three industries in
interstate commerce (A, B and C), lie
along a stream which flows into a small
lake contained entirely on the property
of Industry C, and from which there is
no outflow. Industries A and B are
upstream of Industry C. All three use the
stream for industrial purposes and
discharge effluent into the stream. The
stream is waters of the United States
because it is used by industries in
interstate commerce. All three industries
require NPDES permits, including
Industry C, even though there is no user
downstream from Industry C. The
question of actual or potential use
downstream from the discharger
(Industry C) is not relevant to the
determination, since the character of the
stream as a whole is clearly such as to
be susceptible to use by an industry hi
interstate commerce.
§ § 122.3 (u) and fv) (proposed § 122.3ft))
Definition of "new sources and new
dischargers".
Some commenters objected to the
definition of new source in the proposed
regulations, particularly the 120-day
limit hi paragraph (t)(l)(ii) for the
__ promulgation of proposed standards.
These commenters pointed out that the
120-day limit for promulgation of
standards was not part of the statutory
definition of new sources hi section 306
of the Act and so went beyond proper
EPA authority. EPA believes that the
definition of new source in section 306
of the Act must be read in the context of
section 306 hi its entirety. Section
306(b)(l)(B) contemplates the
promulgation of new source
performance standards within 120 days
of proposal. See Decision of the General
Counsel No. 71. Read together with the
definition to section 306(a)(2), this
section supports the language of both
the proposed and final regulation.
Further, there is also an overriding
policy in support of the 120-day
limitation; since construction of a source
to meet new source performance
standards can only proceed hi a
meaningful way if final standards are
available, any inequities which may
result from EPA failure to promulgate
standards within 120 days of proposal
are resolved by the language of section
306(d). A source which falls outside the
new source definition but is a new
discharger and commences construction
after October 18,1972, may gain the
benefit of the new source protection
period by satisfying the requirements of
section 306{d). See preamble discussion
of § 122.47(d).
A number of commenters objected to
the use of the definition of "new
discharger" to proposed § 122.3{t)(2)
(now § 122.3(v)). They argued the
definition would automatically require a
new permit when a discharger ceased
operation during the term of the permit.
They also suggested the definition could
be read to impose new source
performance standards on a discharger
which recommences operation after
terminating a discharge. EPA has
revised the definition of "new
discharger" in response .to these
comments. The term now applies only to
a genuinely new source of discharge but
which is not a "new source" as defined
in section 306 of the Act because
applicable performance standards have
not been issued. The final regulations
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Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations 32859
continue to require that new dischargers
meet applicable standards and
limitations upon commencement of
discharge, and identify most of these
sources as eligible under section 306{d)
of the Act and § 122.47(d) for the ten
year protection from more stringent
standards of performance.
EPA does not intend to require a new
permit automatically/when a discharge
, ceases. Many permits cover facilities
which in the normal Bourse of their
operations cease and recommence
discharge. Their permits do not lapse
when they cease discharging. However,
the proposed rules were intended to
require a source which shuts down
(including those which do so in order to
escape a statutory deadline or other
requirement) to meet all applicable
standards and limitations upon
recommencement of discharge. This
requirement is now contained in
§ 122.17(c)(3).
Definitions of Application, Discharge
Monitoring Report, New Source/
Environmental Questionnaire and
Permit. Proposed § 122.3 referenced
Appendices A, B, C and D which were to
contain copies of the application form,
...permit format, new source/
environmental questionnaire arid
discharge monitoring reports,
respectively. These Appendices have
been deleted from the final regulations
pending completion of these forms. They
will be published at a later date.
A new Appendix A has been added
which is a redesignation and redivision
- of the industrial categories appendix
contained in former regulations
promulgated on May 23,1978 and
December 11,1978 (see Table I of this,
• preamble). The Appendix has been
revised to conform to the modified
settlement agreement approved by the
District Court and issued on March 9,
1979, in NRDC v. Costle (which modifies
> the NRDC v. Train 8 ERG 2120 (D.D.C.
1976), settlement agreement of June 8,
1976). Additional time after the issuance
date for effluent limitations guidelines
under the consent decree has been
added to allow for processing of
permits. This Appendix will be updated
from time to time if further modifications
are made.
New Definitions. In response to
comments requesting definitions for
additional terms, EPA has included
several new definitions in the final
regulations.
A definition of "publicly owned
treatment works" ("POTWs")
(i 122.3(bb)J has been added which is
consistent with the definition of POTW
found in other EPA regulations, e.g., 40
CFR § 403.3(m).
A definition of "Direct discharge"
(§ 122.3(h)) has been added which states
that this term means the discharge of
pollutants.
The term "Director" (| 122.3(i)) has
been changed to include both the
Regional Administrator and the State
Director, as appropriate. Generally, the
use of the term Director means that the
regulation is applicable to both EPA and
approved States. The terms "Regional
Administrator" (§ 122.3(cc)J,
"Enforcement Division Director"
(§ 122.3(n}) and "State Director
(§ 122.3(ii)) are now used only where the
regulation addresses an action that is
unique to one of those people. This
change in the use of the term "Director"
necessitated the addition of a new term,
"State Director" which is the same
definition as was found for "Director" in
proposed § 122.3(h).
A definition of "process waste water"
(§ 122.3(aa)) has been added which
restates the definition found in 40 CFR
§ 401.11(q).
§ 122.4 Exclusions^
Some commenters thought proposed
§ 122.4(a)(l) over-stepped EPA's
statutory authority to control vessels
when "operating in a capacity other
than a vessel." Commenters felt that the
language in section 502(12)(B) of the Act
which defines "discharge of a pollutant"
as "any addition of any pollutant to the
waters of the contiguous zone or the
ocean from any point source other than
a vessel or other floating craft,"
(emphasis added) precluded regulating
mining vessels as point sources. The Act
does not define "vessels or other
floating craft", but it appears that those
terms refer to transportation vessels.
The legislative history of the Federal
Water Pollution Control Act
Amendments of 1972 (FWPCA) and the
Marine Protection Research and
Sanctuaries Act (MPRSA) of the same
year, indicated that all ocean discharges
within the jurisdiction of the United
States were to be regulated by EPA
under one Act or the other. As the
Senate Public Works Committee noted
on the FWPCA:
Coupled with the provisions in the bill
reported by the Committee on Public Works,
the bill to be reported from the Commerce
Committee [i.e., the MPRSA] should enable
the United States to have complete and
integrated regulation of the disposal of
pollutants into all waters and over all
sources of pollutants subject to its
jurisdiction (emphasis added). See A " "
Legislative History of the Water Pollution
Control Act Amendments of 1972, Senate
Committee on Public Works, 93d Cong.. 1st
sess. (1973) at 1492 (hereafter FWPCA Legis.
Hist).
Hence, if the commenters are right,
the MPRSA or Ocean Dumping Act
would require permits for temporarily
fixed drilling vessels, ocean mining
dredge ships or processing vessels.
We believe the greater weight of
authority points to the fact that similar
structures should be treated similarly,
i.e., an oil platform at sea and an oil
platform that is temporarily anchored to
the bottom of the sea should have to
meet the same requirements under the
same Act. Similarly a deepsea mining
processing ship should have the same
requirements as an onshore processing
plant discharging into the ocean. It
appears the exception in section
502(12)(B) was intended solely to
exclude redundant authority over ocean
dumping under NPDES and the Ocean
Dumping Act.
The Clean Water Act clearly is better
designed to regulate routine industrial
discharges. The industry-by-industry
approach required for effluent limitation
guidelines under the Act is more attuned
to handling discharges from these two
industries than the Ocean Dumping Act
since the Ocean Dumping Act requires
extensive, studies aimed at finding
alternatives to ocean discharges.
Regular sewage discharges from
vessels are still regulated by the Coast
Guard under section 312 of the Act.
Paragraph 122.4(a)(l) is aimed at
industrial processes that occur at sea.
Many commenters objected to the
comment after § 122.4(a)(2) in the
proposed regulations regarding the
relationship of section 402 and 404
permits, which incorporated the
"primary purpose" test presently .stated
in Corps of Engineers regulations for
section 404 permits, 33 CFR § 323.2(m).
These commenters objected to the
vagueness of the comment and to the
implication that both a section 402 and a
section 404 permit could be required for
the same activity. This comment has
been deleted because the Agency is
currently reviewing its position on the
overlap between section 402 and 404
permits. Part of this Agency review
involves a draft policy document
concerning the applicability of the
NPDES program to the disposal of solid
waste in waters of the United States.
Since Agency policy was not resolved at
the time of publication of these final
regulations, no resolution or further
clarification is now appropriate.
Many commenters objected to the
restriction contained in § 122.4(a)(3) of
the proposed regulations that limited
that exclusion to indirect dischargers as
denned in § 122.3(o) of the proposed
regulations. Although § 122.4{a)(3) has
been retained without change, these
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32S60 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
comments have been reviewed in
conjunction with comments submitted
on proposed § 122.3{j) (definition of
"discharge of pollutant"). For further
details, see preamble discussion on
proposed § 122.3(j).
Many commenters objected to the
comment after § 122.4(a)(4), pertaining
to the exclusion of irrigation return
flows, as being beyond EPA authority.
Comments under this section were
considered in conjunction with those
received under proposed § 122.3(j)
(discharge of pollutant), § 122.45
(separate storm sewers), and § 122.46
(silvicultural activities). The comment
has been deleted and changes have
been made in § 122.48 which address
many of the concerns raised by
commenters.
§ 122.5 Signatories.
Many commenters objected to the
proposed revision of § 122.5, which
required that ail permit program forms
be signed bya principal executive
officer of a level of at least vice
president for a corporation, or by an
equivalent level official for partnerships
or for public facilities. This section has
been changed to require that only permit
applications must be signed by a
principal executive officer or equivalent
official. Other permit program forms
may be signed by a duly authorized
representative of the appropriate official
so long as the authorized representative
is responsible for the overall operation
of the discharging facility, and the
authorization is made in writing.
Further, the signatory may rely on the
representations of the person
immediately responsible for obtaining
the information in the document when
certifying to its accuracy, etc. This
change will ease the paperwork burden
upon the regulated community, while at
the same time providing an equal degree
of legal accountability on the part of the
principal executive officer or equivalent
level official. By authorizing a
representative to sign other permit
program forms, the responsible official
does not lose legal accountability for the
accuracy of the information that is
submitted.
§ 122.10 Application for a permit.
A number of commenters were
concerned about the intent of proposed
§ 122.10{b) regarding enforcement
against persons currently discharging
without a permit who have applied for,
but have not yet received, an NPDES
permit. In response, EPA has deleted
this section. However, EPA wishes to
clarify its enforcement policy with
regard to existing dischargers who have
submitted timely and sufficient
applications for an initial NPDES permit,
and have otherwise proceeded in good
faith, but have not yet received a permit
through no fault of their own. In those
cases, these dischargers will not be
subject to enforcement action by EPA
for discharging without a permit.
EPA has also placed the requirements
of proposed § 124.11(b) and (c) into
§ 122.10 so that all the requirements
relating to permit application will be
contained in one section.
Many commenters objected to the
requirement in proposed § 124.11(b)(3)
and (c) for submitting applications 180
days before the present permit expired
(180 days before the discharge) when
there is no concomitant requirement on
the issuing authority to issue a permit in
a resonable time. Because of the
significant resource restraints on States
and EPA, it may not be possible to issue
permits to all applicants, especially
minor dischargers, in a set time period.
Although the statute requires a permit
for a lawful discharge of pollutants, the
fact a discharger is without a permit due
to the lack of action by the issuing
authority will weigh heavily against the
instituting of enforcement actions.
§ 122.12 Duration and transferability.
Some commenters suggested that the
five year limit for permit terms be
extended to ten years for new sources.
While new sources and certain new
dischargers may qualify for a
"protection period" from any more
stringent standards of performance
under section 306(d) of the Act, the five
year permit term is an express statutory
requirement and cannot be altered
through these regulations. However,
permits may be continued under the
Administrative Procedure Act (APA)
where the applicant has submitted a
timely application for renewal and EPA
has been unable to process the
application. See § 122.12(b).
Several comments were also received
on proposed § 122.12(c) (now
§ 122.12(d)), which established
requirements for transfer of permits.
Many of these comments objected to the
required approval by the permitting
authority prior to transfer, arguing (1)
restraint of trade and (2) increase of
paperwork. EPA does not agree with the
first argument but does agree with the
second. Accordingly, paragraph (d) has
been revised to make transfer approval
automatic within 30 days unless action
is taken by the Director. The Director's
option to require a new application for
permit reissuance or modification, as
well as the requirement for a written
agreement between the transferor and
transferee specifying transfer of liability
has been retained.
A new section, § 122.12(c) has. been
added which substantially incorporates -
the requirements of former § 124.46
(Compliance with 1984 Treatment
Deadlines for Discharges of Toxic
Pollutants 43 FR 58066). Some of the
requirements originally in former
§ 124.46, (e.g., the permit must
incorporate "[ajny other terms and
conditions necessary to carry out the
provisions of the Act") have not been
repeated in new § 124.12(c) because
they are elsewhere in Part 122.
EPA has moved proposed § 122.33 to
§ 122.12(b) because "extension of
expiring permits" is more logically dealt
with in this section on permit duration.
In porposed § 122.33, EPA indicated that
expiring permits could be "extended"
under 5 U.S.C. section 558{c) (section
9(c) of the APA. For clarity EPA has
substituted the terms "continuation" or
"continued" for "extension" or
"extended," since the APA does not use
the terms "extension" or extended."
Proposed § 122.33fa)—MaGy
commenters objected to the restrictions
in proposed § 122J33(a) for automatic
continuations, arguing that the only
restriction provided by the APA for
automatic continuation is "timely and
sufficient application for a renewal."
Some commenters suggested deletion of
the requirement that the delay in permit
issuance not be caused by actions of the
permittee (proposed § 122.33(a}(2}).
Other commenters suggested revising
the requirement to provide that requests
for evidentiary hearings do not
constitute a delay caused by the
permittee.
In response to these comments, EPA
has deleted proposed § 122.33(a){2) from
the final regulations, but believes that
delays caused by the permittee may in
some cases render a permit application
"untimely." Proposed § 122.33(a)(3) (now
§ 122.12(b)(l)(ii)) restricts permit
continuation to instances where the
Regional Administrator is unable to
issue a new permit before the expiration
date of the old permit. This provision
has been retained but it is intended only
to implement the requirement of section
558(c) that there be no final Agency
determination on an application, and not
to restrict the applicability of section
558(c).
§ 122.33(c}—Proposed § 122.33(c)(2)
(now § 122.12(b)(3)) indicated that a
permit continuation could be denied by
the Enforcement Division Director when
the permittee was not in compliance
with the expiring permit. Many
commenters contended that such a
denial is not authorized by the APA. •,
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Federal Register / Vol. 44. No. Ill / Thursday. June 7. 1979 / Rules and Regulations 32861
EPA agrees and has redrafted
5 122.12(b)(3)(iii) accordingly. However,
if the Regional Administrator makes a
final determination to deny an
application for permit reissuance,
section 558(c) is by its terms no longer
applicable, and the discharger is subject
to enforcement action for discharging
without a permit. J
Several commenters questioned the
applicability of this section to permits
issues by EPA in NPDES States before
the State program was approved. In
response to this question, § 122.12(b](4)
clarifies that although § 122.12(b) does
not apply where EPA originally issued
the permit but an NPDES State is now
the permit issuing authority, States may
continue the State-issued permit if so
authorized under State law.
§ 122.13 Prohibitions.
§ 122.13(b}—Several commenters
expressed concern over the role of State
certification in the permit issuance
process. This issue is addressed more
directly in the preamble discussion of
Part 124, Subpart C.
§ 122.13(c)—See the preamble
discussion to § 123.23 for a discussion of
EPA's authority to object to the issuance
of State-issued permits under section
402(d)oftheAct. -
§ 122.13(i}—In response to a number
of comments, § 122.13(i) has been
modified. This section has been changed
to clarify that only a new source or a .
new discharger into a water quality
segment (as defined in 40 CFR
§ 130.20(o)(l)) must demonstrate that
there are sufficient pollutant load
'allocations to allow the discharge and
that the facility is entitled to these
allocations. The proposal applied to all
new sources or new dischargers,
including those to an effluent limitation
segment (as defined in 40 CFR
§ 130.20(a)(2)). However, upon review of
the comments, the Agency determined
that the requirement was appropriate
only in water quality segments.
§ 122.14 Conditions applicable to all
permits.
5 122.14(aJ—This section in the
proposed regulations (the permit as a
limited authorization to-discharge)
received the greatest number of
comments. Many of these comments
pointed out the difficulty of analyzing
the effect of paragraph (a) without the
benefit of reviewing the application form
-to which it is tied. The Agency agrees
with these comments. As a result the
substantive requirements of paragraph
{a} are reserved in these Final
regulations and will be reproposed,
together with publication of a draft
application form, in the summer of 1979.
In conjunction with the application form
revision, the Agency is also examining
the overall permit scheme, including use
of the application data, monitoring
requirements, enforcement, the
relationship of the application to section
311 and other such considerations.
Although paragraph (a) is withdrawn
and reserved for reproposal, a comment
has been inserted in its place to
reemphasize the Agency's commitment
to moving towards the national goal of
the elimination of the discharge of
pollutants as stated by section 101(a)(l)
of the Act. It is no longer acceptable for
a discharger to. disclaim responsibility
for being aware of the impact of its
discharges upon human health and upon
the environment. The Agency, therefore,
expects each applicant to discharge
pollutants only in accordance with its
application and permit.
Many comments on this paragraph
discussed the difficulty of its
implementation. In its ongoing
development of a new application form,
the Agency is addressing many of the
major concerns expressed, and
commenters will have an opportunity to
raise these issues when the Agency
proposes its revised approach this
summer.
§ 122.14(b)—The language of
§ 122.14{bj has been shortened to
eliminate superfluous language. The
substance remains unchanged.
§ 122.14(d)—Several commenters
argued that permits should only be
modified to incorporate section 307(a).
standards or prohibitions where the
pollutant has been found to be injurious
to health. However, the Agency is not -
empowered to ignore the criteria of
section 307(a), which include toxicity,
persistence, degradability, and the effect
on organisms in waters. When a
standard is promulgated under section
307(a) to establish these criteria, it
should be incorporated into the permit
However, where a standard under
section 307(a) controls a pollutant
identified as injurious to health, it is
effective and enforceable whether or not
incorporated into permits and must be
complied with by the time set forth in
the promulgated standard.
Many commenters were qoncemed
that modification proceedings to .
conform the permit to a toxic effluent
standard or prohibition might also open
other permit conditions to modification.
Such a result is contrary to this
paragraph's express language. Other
terms and conditions may be modified
only in accordance with § 122.31.
The comment to § 122.14(d) has been
expanded to indicate that when-the new
NPDES application form becomes
available, this paragraph will be
reproposed to require submission of a
new application or partial application as
part of the modification proceedings of
this paragraph.
§ 122. J4fe>—Many commenters
objected to the requirement that
permittees notify the Director of process
changes or other modifications which do
not result in permit violations. In
response, this paragraph has been
revised to require only notification of
activities which would constitute cause
for permit modification or revocation
and reissuance. This requirement as
revised, is necessary because process or
other changes may result in significant
discharges of pollutants which are not
limited by the permit. Upon receipt of
notification under this paragraph, the
Director can require further information
on a new application which may either
justify permit modification or indicate
that no modification is necessary.
Several other commenters expressed
concern that this paragraph would
require daily notifications as a result of
variability in their discharges. As noted
in the above discussion, this paragraph
has been revised and should, therefore,
minimize any potential problems
presented by waste stream variability.
§ 122,14{f}—In response to comments.
§ 122.14(f) has been revised. As revised,
EPA believes this provision is consistent
with the Supreme Court's decision in
Marshal] v. Barlow's Inc., 436 U.S. 307,
(1978).
§ 122.14(g}—Several commenters
expressed doubts whether EPA is legally
authorized to require proper operation
and maintenance of facilities and
systems, including requirements such as
effective management of treatment
facilities and adequate staffing and
training. Such requirements are clearly
authorized by section 402(a)(2) of the
Act, which requires the Administrator to
prescribe conditions in permits which
will assure compliance with the
requirements of section 402(a)(l).
§ 122.14(h}—A number of commenters
questioned the need to report "minor"
noncompliance under § 122.14(h) within
24 hours of becoming aware of the
noncompliance. They felt that the
Discharge Monitoring Reports (DMR)
under § 122.22 provide a sufficiently
prompt method of notification. EPA
agrees that in instances of "minor"
noncompliance the DMR does provide a
sufficiently prompt method of
notification and has revised
§ 122.14(h)(2)(iiiJ to reflect this. In
response to comments, we have also
revised § 122.14(h)(2)(i) to require 24
hour reporting only for violations of
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Federal Register /Vol. 44. No. Ill / Thursday, June 7, 1979 / Rules and Regulations
discharges containing the toxic
pollutants limited by toxic pollutant
effluent standards under section 307(a)
(e.g., Aldrin/dieldrin, Endrin,
Toxaphene, Benzidene, Polychlorinated
Biphenyls and DDT/DDD and DDE). In
addition a new § 122.14[h](2)(ii) has
been added which gives the Director the
discretion to require 24-hour and/or
five-day reporting in a permit for other
noncomplying discharges which may
pose health problems (e.g., section 311
substances). The purpose of such
prompt reporting is to enable the
permitting authority to use the
information to make a case-specific
determination of the severity of the
violation, its possible environmental
effects and mitigation possibilities.
The majority of the commenters were
concerned with the difficulty in
providing the required noncompliance
information within 24 hours. Several
commenters stated that the
determination of corrective measures
may in some cases take longer than 24
hours to develop. As stated earlier, this
24-hour requirement is now mandatory
for only certain instances of
noncompliance. While EPA expects
these dischargers to formulate a plan of
action for correcting the situation within
24 hours of a violation, such plan may
indicate various options for corrective
action. It is necessary, however, that the
best possible information, including
notice of the noncompliance, be
provided to the permitting authority
within 24 hours of the time that the
permittee was aware of the
noncompliance so as to enable any
action necessary to prevent a crisis,
such as contamination of a downstream
drinking supply.
Many commenters requested that the
term "becoming aware" be more
precisely defined. This language has not
been changed because it was intended
to cover "awareness" based on any or
all sources of information such as
analysis, measurement or observation.
Some commenters felt that the five-
day requirement for submission for
written information might not be long
enough if a corporate vice president
must sign a letter, under the
requirements of § 122.5. This situation
has been addressed in changes to
§ 122.5, which now allows for the
delegation of such responsibilities and
through changes to § 122.14(h)(iii)
discussed earlier.
§ I22.14(i)—'nie language of § 122.14(i)
has been shortened to eliminate
superfluous language but the substance
remains unchanged.
Proposed § 122.14(j}—The substance
of this section has been moved to Part
125, Subpart A. The requirement that
permits to POTWs include sewage
sludge disposal conditions under section
405 has been moved to § 122.15(h). Many
commenters objected to the prohibition
against discharge of solids, sludges,
filter backwash or pollutants removed hi
the course of treatment or control of
wastewaters. However, to allow
discharge of substances which have
been removed by treatment systems
would result in circumvention of the
Act's requirements for limiting discharge
of those substances which can be
removed by the treatment
§ 122.14(j)—Some commenters argued
that halting or reducing production as
required in proposed § 122.14[k) (now
§ 122.140)) may cause greater
environmental harm than continuation
of production. The Agency believes that
the pollution problems which may occur
as a result of shutdown and startup will
generally be less severe than those
characteristic of situations of continual
noncompliance. Rather than require the
Director to decide immediately in each
case whether the environmental harm
caused by shutdown or reduction might
be greater than that caused by continual
noncompliance, the requirements of this
subsection have been retained. It should
also be noted that paragraph (j) is not as
harsh as some commenters have
indicated, since it is modified somewhat
by the upset and bypass provisions.
§ 122.14(k)—In response to comments,
the bypass provision (proposed
§ 122.14(1)) has been redrafted for
clarity. Many commenters stated that
the bypass notification requirements
were impractical and internally
inconsistent. The provision has been
modified to require permittees to submit
notice within 24 hours of becoming
aware of the bypass in those
circumstances where the necessity for a
bypass cannot be anticipated. Where
the need for a bypass is known in
advance, the permittee must now submit
a request for approval at least 10 days
before the anticipated event.
Several commenters stated that it was
inappropriate for the Agency to limit
bypasses to situations where there is a
risk of "serious" injury. This provision
has been modified to apply where there
is a risk of "personal" injury.
Commenters objected to the statement
that treatment facilities should generally
be constructed with redundant or
backup equipment This comment was
merely intended to note that proper
engineering practices often involve the
use of redundant or backup systems for
equipment such as pumps or power
supplies. Such practice can eliminate
any noncompliance during periods of
equipment malfunction or maintenance.
This comment has been modified to
clarify that the pemitting authority will
take into account whether the bypass
involved regular preventive
maintenance for which backup
equipment should have been available.
Several commenters stated that
bypasses should be authorized during
periods of preventive or corrective
maintenance. However, in most cases
waste treatment facilities should be
designed with redundant equipment and
with sufficient storage capacity such
that bypassing is not necessary during
periods of maintenance. The bypass
provision is intended to provide relief
from permit limitations during unusual
circumstances; it is not intended to
allow limitations to be routinely
exceeded. . ".
Some commenters objected to the -
requirement that the public be afforded
an opportunity to comment on requests ,
for bypasses. However, the Agency
believes that the critical review offered
by the public is a useful element of the ;
system. . ;-
Many commenters argued that :
economic loss caused by delays in
production should be included in the
definition of severe property damage.
After serious consideration, the Agency
has rejected this position. Except in
limited cases, the Clean Water Act does
not authorize noncompliance with
effluent limitations because of the cost
to an individual facility. Where effluent
limitations, which include consideration
of the cost of operation of waste
treatment facilities, have been properly
established, a source must either comply
or close. Nonetheless, this section
provides for the authorization of
intentional bypass where failure to
bypass would result in severe property
damage. In most cases this damage
would be to the treatment facility itself;
thus, failure to allow bypass would
jeopardize future adequate treatment In
the oil and gas production industry,
severe property damage includes
permanent loss of oil which might result
if a well were to be shut in. For electric
generating facilities, curtailing
production might risk substantial
property loss to users of the electricity.
In all of these cases consideration
beyond the economic loss to the
permittee warrant a bypass.
Further, although permittees may be
required to limit production rather than
exceed limitations, this risk can be
minimized by the prudent use of back-up
equipment and the capacity to store
untreated wasies during periods of
maintenance. The Agency will consider
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32863
the reasons for noncompliance in
exercising its discretion to enforce. •
§ 122.14(1}—In response to comments,
the upset provision (proposed
§ 122.14(m)) has been redrafted for
clarity. Many commenters also noted
that proposed subparagraph (m)(2)
provided only that an upset "may"
constitute an affirmative,' defense.
However, it is the Agency's intention
that a defense of upset is available if the
applicable conditions are satisfied The
provision has been amended to reflect
this.
The comment following this section
relating to judicial review of Agency
determinations was confusing to several
commenters. In response to these
concerns, the comment has been revised
to indicate that the initial Agency
determination on a claim of upset
constitutes an exercise of prosecutorial
discretion, not final Agency action
subject to judicial review. Since upset is
an affirmative defense, the permittee's
opportunity for review of a claim of
upset will be hi the context of any
enforcement action for noncompliance.
Many commenters stated that an
upset should not be treated as a permit
violation in the first place and that it
was improper to require permittees to
prove an upset as an affirmative defense
in a court action. Commenters relied on
Marathon Oil Co. v. EPA, 564 F^d 1253
(9th C3r. 1977) in support of this position.
The Agency believes that this upset
provision is fully consistent with all
legal opinions dealing with this issue.
Most Courts have concluded that no
upset provisions need be provided. In
Weyerhouser Co. v. Costle, 590 F.2d
1011.1056-58 (D.D. Cir. 1978] and Com
Refiners Ass'n v. Costle, (No. 78-1089,
8th Cir. April 2,1979) the District of
Columbia and the Eighth Circuits
recently held that EPA's exercise of its
enforcement discretion would
adequately deal with any possible
problem. See also United States Steel v.
Train, 556 F.2d 822, 842, n.3 (7th Cir.
1977); American Petroleum Institute v.
EPA, 540 F. 2d 1023,1035-36 (10th Cir.
1976). Although the Agency will
continue to exercise its enforcement
discretion, EPA believes that all parties
will benefit from allowing permittees an
opportunity to present their claims in a
formal judicial proceeding. This
provision also meets the requirements
set put in those decisions which
required some form of upset relief. See
Marathon, Oil Co. v. EPA, supra; FMC
Corp. v. Train, 539 F.2d 973,986 (4th Cir.
1976). In Marathon, the Court of Appeals
for the Ninth Circuit clearly indicated
that the burden of proof and the
obligation to provide relevant evidence
establishing that the noncompliance
could not have been prevented could be
placed on the permittee. The
requirement that an upset be established
as an affirmative defense is-an efficient
and effective method of implementing
this obligation. The only alternative
approach would be to require an
administrative determination with
respect to upsets. However, Congress
has indicated, in reference to section
309(a)(5)(B) of the Act, that enforcement
actions should not be bogged down in
administrative determinations or
showing of fault. See A Legislative
History of the Clean Water Act of 1977,
Senate Committee on Environment and
Public Works, 95th Cong., 2d sess. (1978)
at 464-65 (hereafter CWA Legis. Hist.).
Although the upset provision does
authorize permittees a limited
opportunity to make such showings, it is
properly placed in the context of judicial
determinations in an enforcement
action.
Commenters have not been able to
, identify significant impacts from this
approach. The Act contains no provision
for administrative penalties, and
sanctions can only be imposed after a
judicial determination of a violation.
Further, noncompliance reporting
requirements exist independently of
whether the noncompliance was caused
by an upset. One commenter did note
that under § 122.31, a permit may be
withdrawn by administrative action for
previous violations. It is agreed that an
opportunity to prove upset must be
afforded in such cases.
While the Agency will, of course,
consider the possibility of upset where
relevant, it must be stressed that upsets
are exceptional events which should
occur infrequently. The upset provision
should not be construed as providing
relief where there is a pattern of permit
violation.
In response to comments, § 122.14(1](1)
has been revised to indicate that
noncompliance due to operational error
or lack of preventive maintenance does
not constitute an upset. EPA believes
these revisions clarify the situations
listed in the original proposal.
Commenters objected to the
requirement that a specific cause be
identified hi establishing an upset. They
claimed that even properly run faculties
may have upsets for which no particular
cause can be found. However, requiring
permittees to identify the cause of
noncompliance is an essential aspect of
placing the burden of proof on the
permittee to show that an upset was
beyond its control. If upsets could be
proved merely by asserting that a
facility was being properly run at the
time of noncompliance, the burden of
proof would be reversed and the
prosecution would be required to
establish the cause of the upset to rebut
this showing. Such an approach would
make enforcement extraordinarily
difficult. Congress intended that
prosecution for permit violation be swift
and simple, and this provision
implements that objective while
allowing permittees to demonstrate that
noncompliance could not be avoided.
Further, the requirement that a cause be
identified will encourage permittees to
examine the operation of their treatment
system and will help ensure that
noncompliance is not repeated. Finally,
where a cause of noncompliance cannot
be identified, the Agency may still
exercise prosecutorial discretion not to
enforce in situations where it is not
warranted.
Some commenters asserted that the
upset provision would undercut the
States' authority to impose stricter
effluent limitations. In response to this
concern, EPA has revised this section to
make clear what was originally
intended—the upset provision applies
only to violations of technology-based
effluent limitations established pursuant
to sections 304 and 306 of the Act This
change is consistent with the Marathon
decision, and necessary to achieve the
goals of the Act Violations of stricter
State standards or water quality based
effluent limitations are not subject to a
defense of upset.
§ 122.15 Applicable limitations,
standards, prohibitions and conditions.
§ J2ZI5f#—Paragraph (f) listed
situations where limitations more
stringent than those required by sections
301(b)(l)(A), 301(b)(l)(B), 301(b)(2)(B),
and 308 of the Act would be required.
Some commenters suggested an
additional situation, where necessary to
conform to applicable water quality
requirements under section 402(a)(2) of
the Act when the discharge affects a
State other than the certifying State.
EPA agrees and has added § 122.15(f)(4)
to cover this situation.
Some commenters were concerned
that paragraph (f)(8), which indicated
that additional or more stringent permit
limits could be established based on
"fundamentally different factors," might
be misinterpreted to mean that
fundamentally different factors
variances could only result in additional
or more stringent limits. To address their
^concerns, EPA has added a comment
indicating that less stringent permit
limits may also be requested based on
fundamentally different factors. Further
details as to fundamentally different
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
factors variances are found in Part 125,
Subpart D, and related preamble
discussion.
Paragraph (f}(9), which provides for -..•'
.incorporation of additional
requirements, conditions or limitations
into a new source permit based on the
National Environmental Policy Act or ''
section 511 of the Clean Water Act,
provides the basis for the incorporation
into NPDES permits of conditions
related to an Environmental Impact
Statement (EIS). Some commenters
suggested nonwater related EIS
condition cannot be placed in permits.
However, EPA believes that ElS-related
conditions may be imposed in NPDES
permits in order to minimize any
adverse impacts on the environment
identified in the EIS, regardless of their
relation to water pollution or water
quality problems. (See September 23,
1976, Memorandum of the General
Counsel, entitled EIS Regulations for
NPDES Permits and former 40 CFR
§ 6.918). To do otherwise would negate
the purpose and intent behind the
requirement that an environmental
impact statement be prepared.
Commenters also argued that the Act
does not authorize the case-by-case
establishment of technology-based
permit limitations as contemplated by
paragraph (f)(10). This argument is
unpersuasive in light of section 402(a)(l)
of the Act, which authorizes the
establishment of "necessary" conditions
in the absence of effluent limitations
guidelines. Moreover, this argument has
been rejected in the courts and by long-
standing EPA policy (see preamble
discussion to Part 125, Subpart A). Thus,
this section has not been changed.
A new paragraph § 122.15(f)(ll) has
been added to assure consistency with
the pretreatment regulations (40 CFR
Part 403} which may, in some cases,
require more stringent limitations.
§ 122.15(g}—A number of commenters
questioned the relationship between
"best management practices," under
proposed § 122.3(f) and § 122.15(g); and
"operating practices" under proposed
§ 122.15(i). Since best management
practices include operating practices,
the two sections have been combined.
Thus, paragraph (g), has been revised
to clarify that "best management
practices" (BMPs) may be required in
permits where numeric effluent
limitations are infeasible, or where
reasonably necessary to achieve
effluent limitations and standards. "
These BMPs are similar to those
authorized pursuant to section 304(e) of
the Act (which is covered in detail in
Part 125, Subpart K); however, they are
authorized by section 402 and EPA's
authority has been so recognized in
NRDC v. Costle, (Runoff Point Sources).
In addition, a comment has been added
which provides examples of BMPs
which could be required under
paragraph (g). See also preamble
discussion under proposed § 122.3.
§ 122.15(i}—Proposed paragraph (j)
(now paragraph (i)) which prohibited
"backsliding" in permit levels of control
with limited exceptions, has been
retained. The concerns of some
commenters about the effect of
paragraph (j), where permits are based
on interim final effluent guidelines
which are more stringent than final
effluent guidelines, have been addressed
to § 122.31. Paragraph (j) is superseded
in these cases by § 122.31(e)(4), which
allows limitations based on more
stringent interim final limitations to be
modified based on less stringent final
guidelines if a modification request is
made in a timely manner. In addition,
§ 122.15(i)(3) now indicates that there is
a third instance where "backsliding"
will be allowed, i.e., for conventional
pollutants. Congress directed EPA to
shift its pollution control technology to
toxics. (See CWA Legi's. Hist., Statement
of Managers, at 269). The 1977
amendments to the Act (sections
301(b)(2)(E) and 304(b)(4)) set out a
completely new test for conventional
pollutants. The new requirement, known
as best conventional technology (BCT),
is based on a comparison to the cost of
secondary treatment and a cost/benefit
test. The test sets best practicable
technology (BPT) effluent guidelines as a
floor and best available technology
(BAT) as a ceiling. In a small number of
cases, where no promulgated guidelines.
were in effect at the time of initial
permit issuance, (i.e., where a section
402(a)(l) limit is very stringent) the test
may result to effluent limits for BCT less
stringent than limitations to the original
permit for BPT. In these cases, EPA
believes that, consistent with
Congressional intent, backsliding to BCT
should be allowed.
§ 122.16 Calculation and specifications
effluent limitations and standards.
§ 122.16(a)—A number of commenters
suggested that "actual production," as
used in proposed § 122.16(a) as the basis
for calculating permit limitations,
standards or prohibitions, should be
defined or clarified.
In response to these suggestions, a
comment to § 122.16{a) has been added,
which explains that permit limitations
will be calculated based upon a
reasonable measure of production,
taking into account historical data to the
case of existing facilities, or market data
for new or significantly modified
facilities or processes. In the case of
new or modified facilities or processes,
permit limitations are subject to
subsequent modification once a pattern
of production figures become available.
Other commenters questioned
whether proposed § 122.16(a) was
intended to apply to POTWs, and if so,
how? fa response to these comments,
EPA has added a new § 122.16(a)(3)
which states that POTW permit
limitations are to based on design flow.
Basing POTW permit limitations on
design flow will allow growth, while at
the same tune maintain the proper level
of treatment due to the 85% removal
requirement to 40 CFR Part 133. Since
the percentage removal requirement is
not applicable to industries, their limits
must be based on actual production.
In response to a specific invitation for
comments in the August 21,1978,
preamble discussion on proposed
§ 122.16 some commenters favored the
use of an alternative effluent limitation
approach for calculating permit limits.
The approach described to that
preamble was: (1) Determine a total
technology-based effluent limitation for
the entire plant and (2) relocate this
total discharge among the outfalls, as
long as the plant continues to meet the
overall technology-based requirement.
EPA is still evaluating this proposal.
Should it prove appropriate within the
constraints of the Act, EPA may adopt
this alternative approach to future
rulemaking. This portion of § 122.16(a) is
promulgated as proposed.
§ 122.l6(c}—A number of commenters
suggested that certain terms to
§ 122.16(c) (Proposed § 122.16(b)) such
as "maximum daily discharge",
"average monthly discharge" and
"average seven consecutive day
discharge" be defined. These definitions
have been added to § 122.16(c) and for
clarity the term "average seven
consecutive day discharge" has been
replaced by "average weekly
discharge".
Several commenters questioned the
distinction between the terms used to
§ 122.16(c) for the calculation of permit
limitations of POTWs and discharges
other than POTWs. The distinction
between these two general types of
discharges is based upon existing
requirements in effluent guidelines and
its secondary treatment information (40
CFR Part 133). fa order to maintain
consistency with effluent guideline and
secondary treatment requirements,
§ 122.16(c) has not been changed, except
as discussed earlier.
A number of commenters urged that
the permitting authority should have the
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32865
discretion to require either mass- or
concentration-based limitations, -
depending on the nature of the process
and the receiving waters. This approach
has not been adopted, except as
provided in § 122.16(d), because the
Agency continues to believe that most
permit limitations standards and
prohibitions must be expressed
quantitatively in terms of mass in order
to preclude the use ofjdilution as a
substitute^for treatment. Paragraph (d)
of § 122.16 allows the use of
concentration limits under
circumstances in which administrative
or technical problems make the use of
mass limits impracticable or
inconsistent with other requirements
such as promulgated effluent guidelines
or pretreatment standards. (EPA has
decided to state pretreatment standards
in terms of concentratiorrand wherever
- possible to provide an equivalent mass
per unit of production, see preamble
discussion to 40 CFR Part 403, June 26,
1978, 43 FR 27743-27744).
§ 122.16 (f) and (g)—Paragraph
122.16(g) (proposed § 122.16(f)) provides
for issuance of permits based on net
terms rather than gross terms.
Dischargers may receive a credit under
specific conditions, for pollutants.
present in their intake waters. Numerous
commenters objected to the conditions
under which a credit would be granted
and suggested that the various
conditions be deleted. EPA has not
deleted any of the conditions necessary
for achieving a credit allowance and,
therefore, receiving a permit calculated
on a net basis. EPA considers these
conditions as reasonable and consistent
with court decisions and also believes
they are necessary for achieving the
goals of the Act
The limitations upon the net/gross
provision in these final regulations grow
out of the technical basis on which
effluent limitations guidelines are
established. Without exception, EPA has
developed effluent limitations guidelines
on a gross, not a net, basis. The
guidelines assume that a treatment
technology will achieve a final effluent
concentration which is independent of
fluctuations in influent concentration,
within a very broad range. (For a
discussion of the independence of
effluent concentration from raw waste
concentration in the petroleum refining
industry, for example, see 40 FR 21939-
21949 (May 20,1975).) The effluent levels
achieved by good treatment may be
close to background levels in some
receiving waters. This fact underlines
the mischief which can result from an
indiscriminate application of net
limitations. A plant may have a
treatment system which, properly
operated, achieves a suspended solids
limit of 15 mg/1 with a raw waste
between 150-600 or more mg/1. If the
intake concentration is 15 mg/1, this will
have no effect upon the achievable final
effluent concentration. Yet
indiscriminate application of the "net"
requirement would allow the discharger
to discharge 30 mg/1, or twice the
concentration which a well-run
treatment system should achieve. For
this reason, EPA has restricted the
application of the "net" allowance to
those cases where the treatment
required by the Act will not remove the
pollutants hi the intake water (such as,
for example, where cooling water is
discharged without settling).
Many commenters suggested that
proposed § 122.16(f) (now § 122.16(g)(l))
be revised to read that permits "shall"
be written on a net basis rather than the
discretionary "may" in the proposed
regulation. EPA has accepted these
comments in part EPA does not believe
every permit should automatically be
written on a net basis (assuming the
conditions of § 122.16(g) are met)
because some dischargers may not want
to do the sampling, etc., necessary to
develop a net permit. Therefore, the
discharger must actually request
calculation on a net basis at the time of
permit application. However, EPA does
believe, if calculation on a net basis is
requested, and all the conditions of
§ 122.16(g) are met the permit should be
written on a net basis. To this extent,
EPA has accepted the suggestion of
these commenters.
Several commenters objected to the
requirement in § 122.16(g)(l) (proposed
§ 122.16(f)) that limits the availability of
credit to those dischargers who
discharge their effluent into the same
body of water from which they received
their influent While a discharger should
not be held responsible for pollutants
already existing in its water supply if
the discharge is into the same body of -
water from which the discharger took
water, the same reasoning cannot
support allowance of a credit where the
discharge is into another body of water.
The grant of a credit in the latter case
would allow a discharger to transfer
pollutants from one body of "water to
another, thus, adding pollutants to
receiving waters for the first time. An
exception to this rule is where the
discharge is made into a tributary of the
stream from which the influent was
taken. In such a case a credit may be
allowed since the tributary will be
considered to be the same body of water
as the downstream lake or river for the
purpose of 1122.16(g).
A number of commenters objected to
proposed § 122.16(f)(2) (now
§ 122.16(g)(2)) as being vague. The intent
of this section was to deny calculation
of effluent limitations on a net basis if
the discharger's influent treatment
system (to clean water for the
manufacturing process) or the
wastewater treatment system entirely
removes specific pollutants which had
been present in the intake waters and
are limited by the dischargers permit.
This intent has been clarified in
§ 122.16(g)(l)(i)(B).
The provision that a credit shall only
be allowed for pollutants present after
any treatment steps have been
performed on the intake water is also
repeated in § 122.16(g)(2) (proposed
- § 122.16(f)(4)). Some commenters
objected to this requirement suggesting
that EPA has no jurisdiction to regulate
intake pollutants but may only regulate
pollutants added by the discharger. See
Appalachian Power Co. v. Train, 545
F.2d 1351,1377 (4th Cir. 1976). In
Appalachian Power the court said that
EPA only had jurisdiction over
pollutants added by the discharger. EPA
believes that when a source changes the
character or concentration of an intake
pollutant and then discharges it, the
source is, hi effect, adding a pollutant to
the water. For example, one step in the
pretreatment of intake water in many
industries is chlorination to protect
pipes and process equipment from algae
formation. This treatment will result in
chlorination of the intake pollutants
thereby rendering them more toxic.
When this occurs, the discharger should
not be allowed to pass through those
pollutants in its waste stream without
some responsibility for treatment. If the
discharger can demonstrate that the
character or concentration of the
pollutants has not changed after
pretreatment then a credit for those
pollutants will be allowed. These
determinations will have to be made on
a case-by-case basis.
A credit may be allowed for the
amount of pollutant remaining in a
discharger's intake water after any
treatment of the intake waters and
wastewater treatment Thus, if a
discharger treats its intake water and
removes 90 percent of a pollutant, the
discharger may be entitled to a credit for
the remaining ten percent left in the
water used in the plant process. If the
discharger's waste treatment system
also removes 90 percent of the pollutant,
the discharger's credit of ten percent
shall be reduced by 90 percent because
the pollutant remaining in the influent is
being treated a second time, thereby,
reducing the pollutant by an additional
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32866 Federal Register / Vol. 44. No. Ill / Thursday. June 7. 1979 / Rules and Regulations
90 percent Therefore, the discharger's
total credit following both treatments
would be one percent of the pollutant in
the original influent To clarify this
result, the word "incidentally" was
deleted from § 122.16(g)(2) (proposed
§ 122.16(^(4}).
Some commenters objected to the,
requirement in § 122.16(g)(2) (proposed
§ 122.15(f)(4)) that a credit could not be -
granted where the pollutants in the
intake waters were "chemically or
biologically" different from the
discharge water. This requirement was
considered vague and overly broad. EPA
disagrees. Generic pollutant parameters
such as biochemical oxygen demand
(BOD), chemical oxygen demand (COD),
total organic carbon (TOG) or total
suspended solids (TSS) are broad
measurements of a number of specific
chemicals or materials. TSS, as
- measured at an intake point, may
consist mostly of river silt; but after
being used in a process the TSS, as
measured at the outfall, may include
substantial quantities of metals or other
materials with toxic characteristics. EPA
considers it essential to avoid allowance
of credit when the pollutants in the
discharge water vary significantly in
toxicity from the pollutants in the intake
water. Dischargers should not be
allowed an unrestricted right to add
more toxic pollutants to their discharge
waters.
Finally, a new sentence has been
added to § 122.16(g)(2) stating that a
credit not be allowed for the discharge
of pollutants which have been made
more concentrated by a discharger (the
third sentence has been similarly
revised to state that the pollutants
discharged cannot vary physically, e.g.,
in concentration from the pollutants in
the intake water). For example, when
waters are taken from a stream and
used in a cooling pond, this use may
result in the loss (through evaporation or
otherwise) of significant amounts of the
water thereby concentrating the
•remaining pollutants. This action by the
discharger—causing the character of the
water to change by increasing the
amount of pollutants per volume of
water—constitutes an addition of
pollutants to the stream. Therefore, a
source will not be allowed to discharge
this water without treatment
§ 122.1S(hJ~A number of comments
were received on the subject of batch
discharges, under § 122.16(h), suggesting
that definitions of terms used in
§ 122.16(h) be provided, and that
restrictions on batch discharges be
relaxed.
Paragraph 122-16(h) has been
redrafted. The Agency's intent is
unchanged, however, the terminology
has been clarified. As proposed, the
paragraph used the terms "continuous,"
"batch" and "intermittent" discharges
but did not define them. In final form,
paragraph (c) now defines "continuous
discharge" and paragraph (h) now deals
with "noncontinuous discharges." In
addition, paragraph (h) now clearly
indicates that the requirements of
§ 122.16 (c) and (d) (proposed
paragraphs (b) and (d)) are applicable to
the discharges described in this
paragraph. Subparagraph (h)(2) has
been revised to clarify that limits refer
to specific pollutants.
Several commenters argued that batch
discharges should be limited only in
cases where water quality standards
would be violated. Such a provision
would be inconsistent with the Act's
technology-based treatment
requirements which apply regardless of
water quality impacts.
§ 122.J6/y—Many commenters urged
that the Agency should not impose
limitations and standards upon internal
waste streams under § 122.16(i) and
questioned the Agency's authority to do
so. Other commenters urged that the
Agency should broaden the
circumstances under which internal
waste stream limitations would be
imposed. EPA continues to believe that
the Act provides authority to regulate
internal waste streams in appropriate
circumstances. The Agency's intent
regarding the imposition of limitations
upon internal waste streams has been
clarified by means of a comment to
§ 122.16{i) which states that limitations
on internal waste Streams will not be
imposed routinely, but only under
exceptional circumstances which make
monitoring of the final discharge point
impractical or infeasible. The comment
also provides examples of where
internal waste stream limitations might
be necessary.
§ 122.17 Schedules of compliance.
Several commenters thought that
proposed § 122.17(e) (now § 122.17(d))
provided for a schedule of compliance
which allowed compliance after the
statutory deadline. This was not EPA's
intent, so to avoid any possible
confusion this paragraph has been
revised to clarify that compliance with
statutory treatment requirements must
be as soon as possible, but no later than
the applicable deadline imposed by the
Act.
In response to comments, 1122.17{c)
has been redrafted to explain in greater
detail the use of two alternative
schedules of compliance in cases of
planned or contemplated plant "shut-
down" or discharge to a publicly owned
treatment works. These two schedules,
when read together will indicate a
critical date for the decision to cease
discharge rather than proceed toward
compliance—and irreversible date on
which steps toward compliance must be
taken. No later than this date, if the
permittee does not intend tp construct
the required treatment technology, it
must make a firm public commitment to
cease discharge. Examples of firm public
commitment have been provided in the
Comment to § 122.17(c).
Some commenters also thought that
the requirements of § 122.17(c) should
not apply where a discharge to a POTW
is planned, but should apply where
Federal funding problems, beyond the
control of the permittee, delay the
planned "tie-in" to the POTW. In cases
of this sort, paragraph (c) must be ,
considered in conjunction with sections
301(i)(2) and 309(a) of the Act, which
authorize limited extensions of statutory
compliance dates. EPA has no intention
of negating these provisions of the Act
through the operation of paragraph (c).
A new paragraph, § 122.17(e) has been
added to deal with the situation where a
POTW received a section 202(a)(2)
innovative and alternative wastewater
technology grant. POTWs constructing
facilities with this grant money may not
achieve the statutory treatment
limitations because the innovative
technology, as applied, may not work as
planned when the facility is completed.
Section 202(a)(3) of the Act recognizes
that the facilities may have to be
modified or replaced and thus, to
encourage innovative and alternative
technologies, authorizes grants of 100
percent of these costs if the
Administrator determines that certain
conditions are met. EPA believes that in
order for the Permits Program and the
Construction Grants Program to work in
concert the permit schedule of
compliance should be modified if this
unique type of construction grant is
awarded. Thus, this new paragraph
provides that the permit may.be
modified to extend the schedule to
account for the amount of time lost in
building the First treatment plant. This
new paragraph does not, however,
authorize EPA to extend the statutory
date for compliance. If the POTW
cannot achieve compliance in time, the
schedule will not be extended. However
EPA, in it exercise of prosecutorial
discretion, may consider the grant under
section 202(a)(3) when assessing the
POTWs efforts to comply with statutory
treatment requirements.
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Federal Register / Vol. 44. No. Ill / Thursday. June 7. 1979 / Rules and Regulations 32867
§ 12230 Monitoring. '• •
Several commenters suggested that
§ 122.20(b), which requires the Director
to specify monitoring requirements in
permits, should be deleted. No change
has been made in this paragraph. EPA
believes that there is an important need
to tie permit limits to specific monitoring
equipment or methods, such as
biomonitoring, in complex situations
involving toxic pollutants.
§ 122.20 (c) ond/tf>-^Section 122.20
has been amended to provide guidance
for establishing sampling and measuring
requirements in NPDES permits. The
section also requires that once
monitoring requirements are established
for an NPDES permit such requirements
cannot be changed unless the permit is
modified hi accordance with § 122.31.
In establishing monitoring
requirements there are several
considerations. Many effluent limitation
guidelines have been determined by
statistical analysis of the pollutant
levels found in a large number of
composite samples or in grab samples.
Consequently, a permitting authority
may require that sampling for
compliance monitoring be done hi a
manner consistent with the data base
used in setting the limitation guideline.
The development documents for effluent
Imitation guidelines often indicate the
general method of sampling used to
accumulate the data for guidelines
setting. The revisions to § 122.20(c)
indicate that less detailed monitoring
may be appropriate in some cases, but
once a permittee has accepted a given
set of monitoring requirements, the
permittee is bound by that approach
unless the permit is modified for other ..
reasons, in which case monitoring
requirements may be reexamined.
§ 122.22 Reporting of monitoring
results and compliance by permittees.
Several commenters objected to
§ 122.22[a) because it could be read to
require permittees to submit monitoring
results to both EPA and where
appropriate the NPDES State. In
response to these comments, EPA has
substituted the term "Director" for the
proposed terms "Enforcement Division
Director and . . . Director" to indicate
that only one report must be submitted
to the appropriate permit issuing
authority (unless otherwise specifically
required). -
Several commenters objected to the
requirements for reporting of monitoring
results for pollutants not limited in the
permit. However, section 308 of the Act
clearly authorizes such a requirement.
Even in those situations where
monitoring is not required, it is clear
that if the permittee has conducted
monitoring activities, they should be
reported to provide as complete and
accurate a picture of the discharge as
possible.
Other commenters suggested that .
§ 122.22(a) should be limited to
monitoring done at the monitoring points
specified in the permit. EPA has not
accepted this suggestion since it would
allow circumvention of this requirement
by sampling at a point other than that
specified in the permit.
Several commenters suggested that
the imposition of a maximum $10,000
fine per violation (e.g., false statement)
(§ 122.22(d)) is inconsistent with section
309(c)(2) of the Act This is a misreading
of the Act, which states that any person
who knowingly makes "any" false
statement should be liable up to $10,000.
If this section is violated several times
•as a result of several false statements,
each violation is separately subject to
the statutory fine.
§ 122.23 Quarterly noncompliance
reporting.
Many comments were received
indicating that definitions of "major"
• and "minor" permittees should be
provided in the regulations. However,
"major" and "minor" are not permanent
classifications. Rather, these
classifications are intended to provide
EPA and the States with flexibility to
establish priorities for permitting and
compliance activities so as to best
utilize existing resources. Thus, it is
more appropriate that information on
"major" and "minor" classifications be
provided in annual guidance, rather than
fixed in these regulations. However, in
orde~r to emphasize that the "major" or
"minor" classification relates to the
nature of the discharge and not the
nature (or size) of the facility, the
regulations have been revised to read
major [or] minor "discharger" rather
than "permittee" (see, e.g., § 122.23(a)).
Several commenters objected that the
quarterly reporting requirements were \
too frequent, too resource-intensive, and
not useful. However, the regulation were
designed to minimize the amount of
reporting and to focus on the most
significant instances of noncompliance
by major dischargers in the narrative
portion of the report. In fact, the
proposed (and final) regulations change
the existing requirement by adding
narrative information on noncompliance
with effluent limitations by major
dischargers, continuing the existing
narrative reporting requirements on
schedule violations by major
dischargers, and reducing the required
reporting on noncompliance by minor
dischargers to annual statistical
reporting. EPA believes that these
changes will result hi less resources
devoted to preparing reports while
providing the most useful, up-to-date
information to interested members of
the public. ^_
Many comments were received
concerning § 122.23(b)(3). Specifically,
concern was expressed that serious
effluent limitation violations of short
duration would not be reported. Other
commenters stated that the definition of
a pattern of noncompliance did not
adequately handle noncompliance for
parameters requiring continuous
monitoring. The concern was expressed
by many that our definition would result
in almost continuous reporting of many
minor violations. In response to these
comments, two changes have been
made. First, the definition of a pattern of
noncompliance has been changed by
adding the sentence: "This pattern of
noncompliance is based on violation of
monthly averages and excludes
parameters where there is continuous
monitoring, such as pH". Second, a
paragraph has been added that provides
for the reporting of a significant
discharge of a pollutant that otherwise
would not be reported.
Many other comments were received
requesting clarification of requirements
for format, copying and distribution. We
do not believe such specific details are
appropriate for regulation. These
concerns will be addressed La guidance
issued by the Office of Enforcement on
report preparation.
§ 122.31 Modification, revocation and
reissuance, and termination.
The majority of the comments on
proposed § 122.31 dealt with two general
areas. First, many commenters thought
that permit modification or revocation
was inconsistent with a fixed term
permit and the concept of finality as
expressed in section 402(k) of the Act.
However, the protection provided by
section 402(k) is expressly limited by
section 402(b)(l)(C) of the Act; which
states that permits may be modified or
terminated (revoked) for cause,
"including but not limited to" three
specified situations which are
representative examples, not an
exhaustive list. Other situations may
also constitute good and valid cause for
permit modification or revocation. EPA
believes that "cause," as defined in
§ 122.31, falls well within the authority
of section 402(b)(l)(C) of the Act,
notwithstanding section 402(k).
Second, a large number of
commenters, while recognizing EPA's
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32868 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
.authority to modify or revoke permits,
suggested that causes for revocation and
causes for modification should be listed
separately since absolute revocation is a
more "severe" measure. EPA agrees
with these commenters and has
separated and reduced the causes for
absoulte revocation. For clarity in
distinguishing between the methods
used for changing or terminating a
permit, three terms are used in § 122.31
and throughout these final regulations:
"modification," "revocation and
reissuance" and "termination."
"Modification" is used where existing
permit conditions are changed but the
permit expiration date remains the
same. "Revocation and reissuance" is
used to describe the action to revoke an
existing permit and reissue a new permit
which provides the permittee the
protection of a new five-year permit.
Finally, "termination" means the
revocation of an existing permit, where
a new permit is not reissued.
Proposed § 122.31(d) listed thirteen
situations which constituted "cause" for
permit modification or termination. In
accordance with EPA's decision to
separate cause for "termination" from
cause for permit "modification" or
"revocation and reissuance," a new
paragraph (e) has been added to -
supplement paragraph (d). In the final
regulations paragraph (d) contains five
situations where a permit can be either
"modified," "revoked and reissued" or
"terminated." These include the three
situations listed in the Act plus two
other situations. The first situation is
where information indicates that the
discharge poses a threat to human
health or welfare (see discussion of
paragraph (d)(4)). The second situation,
a change in ownership, was added in
response to comments [see discussion of
paragraph {d)(5)).Paragraph (e) lists all
other situations which are cause only for
permit "modification" or "revocation
and reissuance."
Several commenters suggested
additional situations that should
constitute "cause" for permit
modification. The suggested causes
included: revisions to the best
practicable waste treatment technology
standards; promulgation of regulations
governing the disposal of sewage sludge
under section 40S(d) of the Act; and the
inability of a permittee to meet permit
limitations despite installation of
technology contemplated by the permit.
EPA does not believe that these
situations constitute "cause" for •'
modification or revocation and
reissuance. However, in response to
comments, two additional "causes"
have been added: (1) § 122.31{d)(5), a
change in ownership or control of a
source which has a permit, consistent
with § 122.12(d) (where no changes in
the permit are necessary, the permit
may be modified but is not subject to
public notice or an opportunity for a
hearing in accordance with
§ 122.31(f)(4)), and (2) § 122.31(e)(7),
failure of an NPDES State to notify an
affected State of a discharge that
originates in the NPDES State as
required by section 402(b)(3) of the Act.
One commenter also felt that
procedural safeguards surrounding the
revocation and reissuance, and
termination of a permit were inadequate
and did not meet the requirements of 5
U.S.C. section 558(c). In response to this
concern, it should be noted that
§§ 122.1(b}(2) and 122.30 specifically
state that all actions will be taken in
accordance with the procedural
requirements of 40 CFR Part 124, thus
providing adequate procedural
safeguards.
§ 122.31fd)—Section 122.31(d)(l) states
that "violation of any term or condition
of the permit" constitutes cause for
permit modification, revocation and
reissuance, or termination: Many
commenters objected to this and
specifically to the use of the word "any""
since it did not distinguish between
serious, repeated, or willful violations
and minor, single, or inadvertent
violations. EPA understands that these
commenters fear that under the
proposed regulations, a single, minor
permit violation could result in permit
termination and subject the discharger
to action for discharging without a
permit. While this is an unlikely case,
the Act specifically states that violation
of any condition of the permit
constitutes cause for permit -
modification or termination.
Consequently, EPA has not revised this
paragraph; however, the permitting
authority will normally consider the
seriousness of the violation and the use
of other enforcement actions before
deciding to terminate a permit under this
paragraph.
Paragraph 122.31(d)(2) states that
"failure of the permittee to disclose fully
all relevant facts or misrepresentation of
any relevant facts by the permittee"
constituted cause for permit
modification, revocation and reissuance,
or termination. Many commenters felt
that this subsection should require
knowing or willful failure to disclose
facts. As with proposed § 122.31{d)(l),
EPA has not made the suggested change
because this paragraph mirrors the
language in the Act. In response to
comments, however, EPA has clarified
the final clause in this paragraph to
indicate that misrepresentation of any
"relevant" fact is intended to be subject
to this paragraph.
The last sentence to both proposed
§§ 122.31 (d)(l) and (d)(2) stated that the
two situations, violation of any term or
condition of a permit or failure of a
permittee io disclose all relevant facts,
constituted cause for termination,
revocation and reissuance, or
modification only when such changes
would make the permit more stringent.
Many commenters strenuously objected
to the more stringent requirement in the
last sentence and gave examples of
when a permit should be made less
stringent. Although EPA believes that
circumstances justifying a less stringent
permit will be extremely rare, comments
suggesting such circumstances were
persuasive. Accordingly, EPA has
deleted the more stringent modification
restriction in paragraph (d) (1) and (2) to
allow less stringent modifications if
justified.
In response to comments which
pointed out that proposed § 122.31(d](3)
did not properly paraphrase the
statutory definition of "cause" found in
section 402(b](l)(C)(iii) of the Act, EPA
has revised this paragraph to be
consistent with the Act.
Proposed § 122.31(d)(4) stated that
"information indicating the permitted
discharge poses a threat to human
health or welfare" constituted cause for
permit modification or revocation. While
some commenters thought this
paragraph exceeded EPA's statutory
authority, other commenters stated that
this provision was consistent with EPA's
authority under section 402(k) of the
Act. Because EPA concurs with the
latter comments and believes that such
a provision is consistent with the Act,
paragraph (d)(4) is retained as a final
regulation. In response to comments
suggesting that the "human health or
welfare" provision should be "cause"
only to modify a permit to make it more
stringent, and in keeping with EPA's
decision to allow permit termination
only in certain limited circumstances,
EPA has placed this "cause" under the
section which authorizes termination of
the permit in addition to modification or
revocation and reissuance. Many
commenters also felt that this paragraph
should be limited to situations where
there was a "substantial showing" or
"verification" as to the likelihood of an
adverse impact on human health. EPA
has not adopted these suggestions but
points out that the permittee remains
free to challenge the existence of a
threat to human health or welfare in any
proceeding to modify, revoke and
reissue, or terminate a permit.
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Federal Register / Vol. 44. No. Ill / Thursday. June 7. 1979 / Rules and Regulations 32869
Proposed § 12£31(d)(5) indicated that
a discharger's failure or refusal to allow
authorized representatives of the permit
issuing authority to enter, inspect, or
copy materials on-the premises as
provided in proposed § 122,14(f)
constituted cause for permit
modification or revocation. Many
coramenters suggested deletion of this
provision because failure to allow such
entry, inspection, or copying was a
cause for enforcement action under
sections 308 and 309 of the Act Other
commenters stated that the provision
was inconsistent with the Supreme
Court's decision in Marshall v. Barlow's
/ho, 438 U.S. 307, (1978). In response,
EPA has deleted proposed § 122.31{d)(5).
Proposed § 122.14(1) was also revised in
response to comments. See discussion of
§ 122.14(f).
§ 122.31(e}~Proposed § 122.31(d)(6)
(now § 122.31(e)(l)) indicated that
material and substantial alterations or
additions to the discharger's operation
constituted cause for permit
modification or revocation. In response
to comments requesting clarification as
to what constitutes "material and
substantial alterations or additions," a
parenthetical cause has been added to
indicate that such change includes
situations covered by § 122.14(e) which
requires a new permit application.
Some commenters asked under what
circumstances would proposed
§ 122-31(d}(7), now 112£31(e}(2), be
used? Section 122Jl(e)(2) might be
appropriate if a permit misapplied State
water quality standards (in effect at the
time of permit issuance) and only
secondary treatment was necessary.
This section could be used to modify the
permit to reflect the proper level of
treatment In addition, 5 12Z31(e)(2) has
been revised to indicate that it can be
used for revising more than effluent
limitations, e.g., monitoring
requirements.
Proposed f 122.31(d)(6) (now
§ 122.31(e)(3)) indicated circumstances
under which revision or withdrawal of
EPA promulgated effluent limitations
guidelines constituted cause of permit
modification or revocation. Many
conunenters objected that the
requirement to file a modification
request within ninety (90) days after the
Federal Register notice of withdrawal or
revision was unreasonable, particularly
since the scope of the relaxed guideline
or standard may not be known. EPA
continues.to believe that Federal
Register notice is appropriate and
adequate and that 90 days is sufficient
time for a discharger to determine the
scope of the revision or withdrawal.
Several commenters suggested that
withdrawal or revision of Water Quality
Standards of EPA promulgated interim
final effluent limitation guidelines
should also constitute cause for permit
modification. EPA agrees with these
commenters and has revised
§ 122.31[e)(3) accordingly.
Other commenters suggested
modifications should be allowed to
make a permit less stringent, when the
permit was issued based upon section
402(a)(l) of the Act and the pemit
limitations are more stringent than
subsequently promulgated effluent
guidelines. EPA cannot allow
modification to make a permit less
stringent under these circumstances
since a less stringent modification
would constitute unwarranted
"backsliding" in pollution control. See
£7-5. Steel v. Train, 556 F.2d 822, 846 (7th
Cir. 1977). Paragraphs 122.15(i)(l). (2)
and (3) lists the only exceptions to this
principle.
A few commenters thought there was
no need to modify a permit when EPA-
promulgated effluent guidelines
limitations were withdrawn, revised,-or
judicially remanded (see proposed
§ 122.31(d)(8) and (9). now § 122.31(e)(3)
and (4)) since the guidelines were no
longer .applicable or enforceable. These
comments indicate a fundamental
misconception as to the enforceability of
individual permit terms and conditions;
permit terms and conditions remain
enforceable unless and until they are
modifiecl, revoked, or judicially or
administratively stayed.
Several commenters objected to
proposed § 122.31(d)(ll), (now
§ 122.(e)(6J) which indicated by
reference to proposed § 122.14{d) and
§ 122.15(b) that promulgation of effluent
standards limitations or prohibitions
under sections 307(a), 301(b)(2)(C) and
(D) and 304(b)(2) of the Act constituted
cause for permit modification or
revocation. Since that paragraph
incorporated the requirements of former
40 CFR § 124.46, that requirement has
not been changed. However, two
additional cross references to § 122.17
(causes for modifications to schedules of
compliance) have been added for
completeness.
Proposed § 122.31(d)(12). stated that
failure of the permit "to apply any
applicable standards or limitations"
constituted cause for permit
modification or revocation. Many
commenters objected to that paragraph
as unfairly penalizing the permittee for
failure of the permit issuing authority to
write the permit properly. Other
commenters indicated that any attempt
to apply limitations or standards which
were not in effect at the time of permit
issuance constitutes unauthorized
overreaching by the permit issuing
authority. EPA has carefully considered
these comments in light of section 402(k)
of the Act and has concluded that,
except as provided in § 122.31 (e) (7), a
permit should not be modified to
incorporate new standards or
limitations. Accordingly, EPA has
deleted that paragraph.
Proposed § 122.31(d)(13), defined
cause to include "other circumstances
. . . [which] have materially and
substantially changed since the permit
was issued." Several commenters
suggested that this subsection was
either too vague or too expansive and
should, therefore, be deleted. Although it
was not intended that this paragraph be
used as a carte blanche to allow permit
modifications, EPA understands arid
partially agrees with the fears of some
commenters that this paragraph could
be so used. Accordingly, that paragraph
has been deleted.
§ 122.31(f)—Proposed § 122.31(e) (now
§ 122Jl(fj) listed six uncontested
actions amending minor provisions of an
effective permit that were not subject to
the usual procedures of notice and
opportunity for hearing unless the
modification would render the permit
less stringent Several commentera
thought that it was inconsistent to allow
only more stringent modification
without public notice and an
opportunity for hearing and not to allow
less stringent modifications in that same
manner. EPA believes that a
requirement for public notice and
opportunity for a hearing for less
stringent modifications is necessary,
since the public has a right to know of
any permit modifications which would
render a permit less stringent and could,
therefore, adversely affect the
environment. The only person who
would be affected by a more stringent
modification is the permittee and the
permittee receives notice of and retains
the right to contest any more stringent
modifications. If the permittee contests
the modification, § 122.31(f), by its
terms, is not applicable and the
requirements of Part 124 come into
effect.
Several commenters suggested that a
permit modification to require less
frequent monitoring or reporting should
be an insignificant modification under
§ 122.31(f). Since less frequent
monitoring or reporting would render a
permit less stringent. EPA. for the
reasons stated above, believes public
notice and an opportunity for a hearing
is required.
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Other commenters suggested various
changes to proposed § 122.31(e)(3) (now
§ 122.31(f)(3)} to allow more than the
proposed 120 days slippage not only for
interim compliance dates but also for
final compliance dates. An extension of
the final compliance date clearly
renders the permit less stringent and
therefore EPA has not made the
suggested changes. EPA further believes
that a slippage of more than 120 days in
an interim compliance date would, in
most cases, interfere with the
attainment of a final compliance date. In
the development of the Interim National
Municipal Policy and Strategy EPA
carefully considered the effect of the
Construction Grants process on the
achievement of interim compliance
dates by municipal permittees. EPA
concluded that 120 days slippage in
interim compliance date is sufficient to
accommodate the Construction Grants
process and that, with careful grants
management EPA is hopeful that even
slippages of 120 days will not occur in
the future.
§ 122.41 Disposal of pollutants into
wells, into publicly owned treatment
works, or by land application.
Proposed § 122.41(a) requiring State
permits for the disposal of pollutants
into wells has been moved from Part 122
'to Part 123 because it is applicable
solely to NPDES States.
1122.41(a)—One commenter
recommended that disposal of wastes
by land application, as well as by well
injection or routing to a POTW should
be included in § 122.41. EPA agrees, and
this change has been made.
A number of commenters objected to
the provision in proposed § 122.41(b)
(now § 122.41(aJ) requiring adjustment
of effluent limitations for discharges into
surface waters where a portion of raw
waste is injected into a well. These
commenters argued that the adjustment
provision is inconsistent with Exxon
Corp. v. Train, 554 F.2d 1310 (5th Cir.
1977), and further that EPA should defer
tffSubpart C of the Safe-Drinking Water
Act, which establishes controls over
well injection.
EPA believes that these commenters
have misconstrued the purpose and
scope of proposed § 122.41(b) (now
§ 122.41(a)J. The provision does not
regulate well injection, directly or
indirectly, nor does it place any limit on
the amounts which may be injected, the
rates of injection, or the design and
operation of injected wells. Instead,
§122.41 focuses on the remaining wastes
which are being discharged into waters
of the United States. The purpose of the
regulation is to ensure that the Act's
treatment requirements are met for
discharges into surface waters. Unless
adjustment is made in calculating
effluent limitations, dischargers using
wells, POTWs, or land application for
part of their wastes would get treatment
"credit" for pollutants so disposed and
thus escape application of technology-
based requirements to the portions of
the wastes disposed to waters of the
United States.
Several comments noted that the
formula as published in the proposed
rules is incorrect and inconsistent with
EPA's examples in the preamble. EPA
agrees, and has modified the final rules
to incorporate the correct method of
calculation. This method may be
algebraically expressed as:
N_
P=ExT
where P is the permit effluent Limitation,
E is the limitation derived by applying
effluent guidelines to the total waste
stream, N is the wastewater flow to be
treated and discharged to waters of the
United States, and T is the total
wastewater flow.
Several commenters noted that strict
application of the formula would allow a
discharger to inject concentracted
wastes into a well and discharge
relatively dilute wastes to surface water
with little or no treatment The last
sentence in proposed § 122.41(b) was
intended to cover this situation. That
sentence allows adjustment of the
effluent limitations derived from,the
formula as necessary to account for
changes in "character or treatability" of
the wastes disposed into navigable
waters. Permit issuing authorities should
devise appropriate methods of
adjustment in each case, based upon a
finding that the wastes being discharged
into surface waters are "fundamentally
different" from those considered in
issuing effluent guidelines. These
variances will be controlled by Subpart
D of Part 125.
A new paragraph (§ 122.41(a)(l)) has
also been added to cover the situation
where EPA-promulgated effluent
guidelines provide separate standards
for a discharge of wastes from a _
particular process and all wastes from
that process go to wells, land
application, or POTWs. Such separate
process standards would not be used to
calculate permit limits.
§ 122.42 Concentrated animal feeding
operations.
Proposed § 122.42 subjected
concentrated animal feeding operations
to individual permits coverage and all
other animal feeding operations to
general permit coverage. Many
commenters objected tffEPA's blanket
coverage of all animal feeding
operations, arguing that many smaller
animal feeding operations are not point
sources. These commenters also added
that such operations were adequately
covered by the section 208 planning
process. EPA has reconsidered its
position and agrees that not all animal
feeding operations are point sources and
thus subject to permit requirements.
EPA is, therefore, withdrawing the • '
proposed revision; and the final
regulations reflect the requirements
found in former § 124.82 and § 125.51.
Thus, only concentrated animal feeding
operations will be subject to individual
permits and general permits will not
apply to other animal feeding
operations. "
§ 122.43 Concentrated aquatic animal
production facilities.
Many commenters objected to this
proposal which subjected concentrated
aquatic animal production facilities to
individual permit coverage and all other
aquatic animal production facilities to
general permit coverage. In addition,
commenters objected to the provisions
for case-by-case designation of certain
aquatic animal production facilities as
concentrated aquatic animal production
facilities, and therefore, subject to
individual permits.
As discussed in § 122.42, EPA is
withdrawing the proposed revision
regarding general permits. The final
regulation concerning permit coverage is
similar to former 40 CFR § 124.1(u) and
§ 125.1(ii) requiring only individual
permits of concentrated aquatic animal
production facilities. However, EPA
believes that some aquatic animal
production facilities that may not be
classified as concentrated under the
formula, nevertheless, may be
significant contributors of pollution.
Because of this, EPA is retaining the
provision for case-by-case designation
of concentrated aquatic animal
production facilities. EPA is revising this
to include the following language
suggested by one commenten "In no
case shall a permit application be
required from a concentrated aquatic
animal production facility designated
under (the case-by-case provision) until
there ha's been an on-site inspection of
the facility and a determination that the
facility should and could be regulated
under a permit program."
Commenters also objected to
combining warm and cold water aquatic
animal production facilities and the
9,090 kilograms (approximately 20,000
pounds) of aquatic animals per year cut-
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Federal Register /Vol. 44. No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32871
off. In response to these comments,
aquatic animal production facilities are
now differentiated in the regulations
based on whether they produce warm or
cold water species and the
characteristics of the method of
confinement. Warm and cold water
production facilities are separated
because of basic operational
characteristics differences. Cold water
aquatic animal production facilities,
where concentrated feeding and
continuous flow occur, discharge
organic pollutants at a rate related to ,
the amount of food fed and the total
weight of the animals produced. Small
facilities of this type, however, (such as
"fishout" ponds and farm ponds)
produce negligible amounts of pollution.
For this reason a facility which produces
less than 9,090 harvest weight kilograms
(approximately 20,000 harvest weight
pounds) of aquatic animals per year and
feeds less than 2^72 kilograms
(approximately 5,000 pounds) of food
during the month of maximum feeding.
is not required to have an NPDES permit
unless so required on a case-by-case
basis (see § 122.43(c)).
In most cases warm water aquatic
animal production facilities differ in
construction and operation from cold
water facilities. If the discharge from a
warm water operation takes place for
less than 30 days per year or only during
periods of excess runoff, no NPDES
permit is required. Facilities which
produce less than 45,454 harvest weight
kilograms (approximately 100,000
harvest weight pounds) of warm water
aquatic animals per year are also
exempted. The 45,454 kilogram figure
will apply to warm water aquatic animal
production facilities. If sufficient
information is submitted to EPA to
substantiate a higher figure, EPA will
consider amending this section.
Finally, EPA has deleted the non-
native fish restriction found in proposed
§ 122.43(b)(l). Although this restriction
was taken from the former regulations,
an overwhelming number of commenters
objected to the restriction because of its
indirect effect on research, sport fishing,
and fish management and, generally,
because it exceeded EPA's statutory
authority. Since EPA agrees that a
native/non-native fish distinction bears
little relation to the quality of the
discharge, this distinction was deleted.
§ 122.45 Separate storm sewers.
On February 4,1977, the EPA
published a proposed rule to establish
an NPDES general permit program for
irrigation return flows and separate
storm sewers (see preamble discussion
of § 122.48 General Permit Program}.
The February 4,1977 proposed definition
of "separate storm sewer" was the same
as defined in former 40 CFR § 125.52. In
the August 21,1978 proposal, EPA
redefined "separate storm sewer" to
mean "a conveyance or system of
conveyances (including but not limited
to pipes, conduits, ditches and channels)
primarily used for collecting and
conveying storm water runoff." This
definition differed from the February 4,
1977 definition, in that the February 4,
1977 proposal required the sewer to be
located in an "urbanized area" or
otherwise be found to be a significant
contributor of pollution. The August 21,
1978 proposal also introduced the
concept of case-by-case designations of
"concentrated" storm sewers and
indicated that concentrated storm
sewers require individual permits.
In response to comments objecting to
the case-by-case designation of >
concentrated separate storm sewers and
the deletion of the "urbanized area"
requirement for separate storm sewers,
EPA has returned to the definition of
separate storm sewer proposed in
February 4,1977, i.e., the sewer must be
located in an urbanized area to be a
separate storm sewer and there will be
no case-by-case designations of a
different category of sewers known as
"Concentrated" storm sewers. A
conveyance or system of conveyances
net located in an urbanized area, can, as
proposed in the February 4,1977 rule, be
designated a significant contributor of
pollution and be considered a "separate
storm sewer" subject to permit
requirements. Likewise, under
§ 122.48(e) concerning general permits,
the permit issuing authority can require
that sources otherwise subject to a
general permit obtain an individual
permit. This case-by-casa designation is
similar to the February 4,1977 proposal.
A comment has also been added
which indicates that the designation of
separate storm sewer under this section
has no bearing on whether the source is
or is not a separate storm sewer for
purposes of funding under Title II of the
Act. This comment was added to
prevent any possible confusion between
these regulations and the Title II
regulations.
§ 122.46 Silvicultural activities.
Proposed § 122.46 restated the former
definition of "silviculhiral point source"
(40 CFR § 124.85(a) and § 125.54(a)) and
introduced the concept of case-by-case
designations of silvicultural activities as
point 3ources. Many commenters
objected to the case-by-case designation
of point sources arguing, among other
things, that such designations would
negate the section 208 planning process,
that the criteria for designations were
too vague and that the designation of
any additional silvicultural point
sources should be through rulemaking
procedures. EPA has considered these
comments and determined that the four
silvicultural point source activities
defined under § 122.46(a) (rock crushing,
gravel washing, log sorting, and log
storage) are sufficient under NPDES
because most water pollution from
forest management areas is non-point in
nature and hence not subject to NPDES.
EPA accordingly has deleted all
reference to case-by-case designation of
silvicultural point sources.
% 122.47 New sources and new ;
dischargers.
§ 122.47 (a) and(b)—Two commenters
pointed out that proposed § 122.47 (a)
and (b) did not address the question of .
whether a mobile drilling rig which i
relocates requires an EIS upon
relocation. The final regulations
continue to track the language of section
306(a)(5) of the Act which defines
construction to include "any placement,
assembly or installation of facilities and
equipment... at the premises where
such equipment will be used," without
interpreting this language in the context
of mobile drilling rigs. It should be noted
that at present, no new source
performance standards have been
promulgated for mobile drilling rigs;
thus, no mobile drilling rig may be
considered a new source at present. The
Agency intends to examine the EIS issue
at the time that it promulgates new
source performance standards for these
sources.
§ 122.47(c)—Several commenters
remarked that State-issued permits to
new sources should require EIS's under
proposed § 122.47(c)(l)(ii). Other
commenters disagreed. It is clear,
however, that the issuance of a permit
by a State is not a major Federal Action.
Chesapeake Bay Foundation v. United
States (E.D. Va. June 28,1978).
Therefore, EPA has not changed this
statement.
Several commenters objected to the
requirement in proposed § 122.47(c) (2)
and (3) that the Regional Administrator
must accept the EIS recommendations
and deny or condition permits in
accordance with such recommendations.
They argued that the EIS is only a
recommendation and that it is the
Regional Administrator's duty to
evaluate the recommendation and make
permit-related decision accordingly.
EPA agrees with the thrust of these
comments, and the regulation has been
redrafted to reflect them.
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Many commenters disagreed with the
provision of proposed § 122.47{c) (4) and
(5) which would bar construction prior
to issuance of a permit or negative
declaration. However, EPA believes that
it is implicit in the requirement of
section 511(c) of the Act and of the
National Environmental Policy Act
(NEPA) that the expected environmental
impacts studied in the environmental
impact assessment should not be
allowed to proceed until that
assessment has beerT concluded. This
has consistently been the Agency's
position (see former 40 CFR § 6.908,
published in 42 FR 2454 (January 11,
1977)) and has recently been reinforced
in NEPA regulations published by the
Council on Environmental Quality (43
FR 55478, November 29,1978).
Therefore, the position is retained in
these final regulations. It should be
noted that subparagraph (c)(4) allows
the Regional Administrator to approve
construction prior to issuance of a
permit or finding of no significant impact
(i.e., a negative declaration) if he or she
determines that such a finding will
probably be made.
§ 122.47(d}—Several commenters
pointed out under proposed
§ 122.47(d)(l)(ii) that construction often
creates construction-related discharge
and that the 10-year protection period
for new source performance standards
should not begin at the time of such
discharges. Accordingly, the regulations
have been modified to trigger the period
at the time of discharge only hi the case
of process or other non-construction
related discharges.
The interpretation of section 306(d]
has been a vexing legal problem for EPA
since the enactment of the 1972
Amendments to the Clean Water Act.
That provision grants to a qualifying
source meeting "all applicable
standards of performance" a ten-year
immunity (or immunity during the period
of amortization of pollution control
facilities, if shorter) from "any more
stringent standard of performance." The
term "standard of performance" is
defined in section 306(a)(l) in such a
way as to make it clear that it refers
only to new source performance
standards issued by the Administrator.
Thus-the literal effect of section 306(d) is
to give a new source a ten-year
protection only from more stringent new
source performance standards, and not
from more stringent BAT, BPT, or BCT
effluent limitations.
Reading this provision of the statute
literally would make it meaningless, a
result Congress could not have intended.
New source performance standards are
periodically revised to incorporate new
designs and in-process changes which
can only be incorporated into a new
plant when it is first built. If the statute'
is applied literally, after the protection
period expires a new source would have
to comply with any revised new source
performance standards, some of which
might be achievable only by a plant
which was designed and constructed
from the ground up so as to meet them.
On the other hand, reading the term
"standard of performance" (in its second
use in section 306(d)) to refer to all
technology-based standards not only
does violence to the language of the Act
(by requiring the same statutory term to
have two different meanings in the same
sentence and by falling to track the
definition in section 306(a)(lJ), but also_
seriously interferes with Congress'
command in the 1977 Amendments that
technology-based standards for toxic
pollutants be expeditiously achieved.
In the proposed regulations EPA
sought to deal with these problems of
interpretation by construing the
protection afforded by section 306(d) to
apply only to "more stringent"
technology-based effluent limitations
controlling the same pollutants as are
controlled by the applicable standards
of performance. In other words, if the
NSPS only limited pollutants A and B,
EPA could later impose technology-
based effluent limitations for pollutants
D and E, but could not impose more
stringent technology-based limitations
on A and B.
A number of commenters objected to
this proposal, arguing that section 306(d)
should be read to afford, new sources
protection against any additional
requirements during the protection
period. EPA agrees that the protection
provided by the proposed regulations "
should be broadened, although not to
the extent suggested by the commenters.
Accordingly, the Agency has invoked its
rule-making authority under section
501(a) of the Act to fashion an
interpretation of section 306(d) that
gives the greatest effect possible to the
language of the statute hi light of
congressional purposes. This
construction has two principal features.
First, it extends the protection afforded
by section 306(d) not only to new source
performance standards, but to all
technology-based requirements under
section 301 (BPT, BCT, and BAT).
Second, the protection is not extended
to toxic pollutants controlled by
applicable BAT regulations, but not by
the new source performance standards.
(The proposed regulations would have
exempted from 10-year protection
conditions controlling any pollutants not
controlled by the applicable new source
performance standards.)
In this way, EPA has sought to
implement two conflicting congressional
goals. On the one hand, new sources
must be given some meaningful
protection for ten years after - .
construction. Section 306(d) should not
be ignored. On the other hand, the
. purpose of the new provisions of the Act
controlling toxic pollutants must not be
frustrated by allowing new sources
which meet old new source performance
standards based on traditional
pollutants such as BOD and suspended
solids to escape application of BAT
controls on toxic pollutants.
A number of commenters suggested
that the section 306(d) protection period
apply to State water quality standards
and other requirements not based on
—technology. EPA has not adopted these
proposals because the term "standard of
.performance" clearly refers to a
technology-based standard. (See section
306(a)(l) of the Act.) Moreover, an
earlier version of section 306(d) adopted
by the House would have provided
protection from any effluent limitation,
whether technology-based or water-
quality-based. (See FWPCA Legis. Hist.
at 965-66.) But the version adopted by
the conferees and ultimately enacted
provided protection only from
"standards of performance." The shift
clearly indicated an intent to narrow the
type of "standards" from which
protection is granted.
In response to comments objecting to
the limitation of the protection period to
pollutants actually controlled by the
standard of performance,
§ 122.57(d)(2)(ii) allows imposition of a
more stringent technology-based
effluent limitation during the protection
period only if it controls a toxic
pollutant. This revision will allow the
imposition of additional controls over
pollutants which are neither hazardous
nor toxic where such control has been
specifically identified as necessary to
indirectly control toxic pollutants. EPA's
present strategy for controlling toxics
will involve such indirect regulation in
many instances. This best
accommodates the purposes of the 1977
Clean Water Act amendments. Congress
intended for EPA to shift its focus from
the regulation of conventional pollutants
to a new program for applying
technology-based requirements to toxic
pollutants. Under the Act as amended,
toxic pollutants are treated separately
from less hazardous materials. Section
307{a), as amended in 1977, requires
EPA to establish for toxic chemicals
either effluent limitations based on the
301(b) criterion of best available
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Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations 32873
technology economically achievable, or
a national standard under section 307(a)
itself based on the toxicity of the
substance and designed to provide an
"ample margin of safety."
The policy of Congress was clearly to
control toxic chemical pollution as
quickly and as effectively as possible.
See CWA Legis. Hist. 427-29 (remarks of
Senator Muskie). The addition of the
new BAT standard for toxic pollutants
was intended not to make toxic controls
less effective than they would have been
under section 307(a), but to allow EPA to
use the regulatory mechanisms of
section 301(b) when they would be more
efficient than those under section 307(a).
In light of the expressed intent of
Congress to expedite the control of toxic
pollutants, EPA believes that the intent
of the Act would be ill served by a
policy of exempting classes of sources
from compliance with toxic controls for
ten years, where the Act can be
interpreted not to provide such an
exemption.
Finally, the protection period will not
extend to permit conditions controlling
hazardous substances under section 311
of the Act. This exception is intended to
carry out the purposes of the 1978
amendments to section 311 of the Act
Those amendments excluded from
control under section 311 discharges
which are controlled by the permit
system under section 402. The legislative
history of that provision, though brief,
shows that Congress intended for any
exemption from section 311 to depend
upon the availability of effective control
under section 402 of the hazardous
substance discharges. Thus, for
example, Congressman Breaux, one of
the sponsors of the 1978 amendments,
said:
At the present time many industrial point
sources have section 402 permits which do
not identify or provide for the regulation of
designated hazardous substances. Section
311(a)(2) would be amended to provide these
sources a reasonable opportunity to identify
the constituent elements of their effluent to
develop treatment and management
procedures and to apply for a new permit
without being liable for section 311 penalties.
Cong. Rec. (daily ed.) at 13599, October 14,
1978.
New sources should have this same
opportunity to apply for a permit that
reflects consideration of hazardous
substance discharges, and these
regulations now accord that opportunity.
Several commenters pointed out that
under proposed § 122.47(d)(4) the
maximum of a 60-day "start-up" period
was insufficient for new sources to meet
all permit conditions. One example
given was the case of biological
oxidation ponds in cold weather. As a
result, the timejimit has been extended
to 90 days.
§ 122.48 General permit program.
On February 4,1977, EPA published a
proposed rule (42 FR 5846) to establish
an NPDES general permit program for
irrigation return flows and separate
storm sewers. The proposed rule arose
out of the decision in NRDC v. Costle
[Runoff Point Source), which denied
EPA's authority to exclude certain point
sources from the permit program. The
general permit program outlined a
system whereby similar activities in a
given geographic area would be covered
' by a single general permit. The program
was intended to provide administrative
flexibility in dealing with numerous
minor discharges subject to the same
limitations.
Approximately 40 comments were
received on the proposed regulations
during the overall comment period,
ending April 1977. Many of these
comments addressed problems
associated with irrigation return flows.
However,, after the proposal Congress
excluded irrigation return flows from the
permit requirements (see section 502(14)
of the Act). Accordingly, EPA has
exempted those discharges from both
individual and general permit coverage,
see § 122.4(a)(4).
The August 21,1978 proposal reserved
§ 122.48 for the general permit program.
Based on comments on the original
general permit proposal and the August
21,1978 proposal, EPA has made several
revisions as noted below.
. First, as indicated in § 122.48(b), the
general permit program is limited to
certain types of point sources. While the
original general permit proposal covered
only separate storm sewers and
irrigation return flows (now exempted),
comments addressing the administrative
flexibility of the approach have
prompted us to authorize the use of
general permits for other categories of
points sources with minor discharges
located in the same geographic area. All
draft general permits for other
categories of points sources must be
sent to the EPA Deputy Assistant
Administrator for Water Enforcement
for a 90-day review (see §§ 123.22,
124.32(a) and the Comment to
§ 122.48{a)(2)).
Some commenters misinterpreted the
proposed regulations and though that
EPA was requiring States to use general
permits. It should be noted that the
general permit program is optional.
States (and EPA) retain the right to
require individual permits for any and
all point sources.
A few commenters were confused as
to the proposed timetable for
establishment of a general permit
program for separate storm sewers
which varied depending on whether the
permitting authority is a State or EPA. In
response, EPA has decided to drop the
deadline requirement for submitting a
separate storm sewer general permit
program. Since the requirements for
State general permit programs have
been placed in § 123.12, a more in-depth
discussion of State requirement can be
found in the preamble discussion of that
section.
The proposed general permit
regulations listed geographic areas
which may be appropriate for the
issuance of general permits to storm
sewers, including political or
geographical boundaries. Based on
several comments, the final regulations
have been revised to include boundaries
designated by roads in a State highway
system as a geographical area.
Several commenters addresed the
procedural aspects of general permit
issuance established in the proposed
regulations,'particularly, public notice.
These issues are now covered under
Part 124 and have been subject to
renewed opportunity to comment in the
August 21,1978 proposal. Although
commenters felt the Agency should
individually send notice to permittees
covered by a general permit, EPA
believes that such system would be
unwieldy and that Federal Register
notice, or other appropriate notice in the
case of State issued general permits, is
sufficient (see § 124.41(f)).
The original February 4,1977
proposed general permit terms and
conditions have been deleted because
they would be duplicative of the
provisions in § 122.14 and § 122.15
(permit terms and conditions). Since
these sections are more detailed than
the general permit proposal, they
address the concerns of commenters
that proposed general permit terms and
conditions were vague and overbroad.
Any concerns about unreasonable
permit conditions are adequately
addressed by a discharger's right to
request an individual permit and then
request a hearing under Part 124.
Some commenters were confused
about the use of best management
practices (BMPs) as general permit
terms and conditions, including
questions on how best management
practices would be developed. The use
of BMPs for separate storm sewers is of
particular importance since "end-of-
pipe" effluent limitations may not be the
most appropriate means of control. As
indicated in the preamble discussion of
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BMPs, they may be imposed in general
permits under a variety of authorities.
To summarize briefly, BMPs may be
imposed in general (or individual)
NPDES permits, where: uniform numeric
effluent limitations are infeasible, in
accordance with NRDC v. Costle
(Runoff Point Sources); BMPs are
mandated under section 304(e) of the
Act to control toxic and hazardous
pollutants from ancillary industrial
activities; BMPs are "appropriate
requirements" related to the
achievement of effluent limitations,
pursuant to section 402(a)(2) of the Act;
BMPs are a condition of State
certification for an EPA-issued permit
under section 401(d) of the Act; BMPs
constitute a more stringent limitation
established pursuant to State law or
regulations under section 301(b)(l)(C) of
the Act; BMPs are required pursuant to
the National Environmental Policy Act,
where an Environmental Impact
Statement (EIS) has been prepared; and
BMPs are necessary to assure
consistency with a State water quality
management plan pursuant to section
208(e) of the Act. (See § 122.15{g).)
A number of commenters noted some
problems with the provisions related to
revocation of a general permit and
issuance of an individual permit to a
particular discharger. As a result, the
provisions have been redrafted, with
several major changes in the final
regulations. First, interested persons can
request that a general permit be revoked
and an individual permit required for a
particular permittee. A permittee is
adequately protected against arbitrary
action in this regard under the
procedural safeguards of Part 124.
Second, rather than requiring general
permit modification, the revocation of a
general permit and the issuance of an
individual permit now automatically
modifies the general permit's
applicability to the individual permittee.
Public notice and opportunity for
comment on the modification of the
general permit for this purpose (i.e.,
solely reflecting a change in covered
permittees) is not necessary because
public notice will be given of the new
individual permit for the permittee.
Third, individual permittees can request
to be covered by the general permit, and
vice versa. In a related vein, a few
commenters suggested that a person
covered by a general permit should be
excluded from general permit coverage
where an individual permit is requested,
and left unpennitted pending a decision
on the individual permit request. This
suggestion has not been taken, since it
runs contrary to the pollution control
goals of the Act and EPA's policy on
permit modification and revocation and
reissuance.
Finally, EPA has rejected some
changes recommended by commenters
as inconsistent with the Act's
requirements, e.g., general permits may
not be issued for terms which exceed
five years, and section 208 water quality
management agencies may not be
designated as permitting authorities for
general permits.
///. Part 123—State Permit Program
Requirements
A. What Does This Part Do? Section
304(i)* of the Act directs the
Administrator to promulgate guidelines
for State programs setting minimum
requirements for State participation in
the National Pollutant Discharge
Elimination System (NPDES) permit
program under sections 402, 318 and 405.
Section 101(e) of the Act directs the
Administrator to promulgate guidelines
setting minimum requirements for public
participation in the development,
revision and enforcement of State
programs approved pursuant to sections
402 or 404. This Part contains the
guidelines required by section 304(i) and
101(e). In addition, this Part sets
guidelines for State section 404 permit
programs regulating discharges of
dredged or fill material. The decision to
include section 404 permit programs in
this Part is based on the very close
parallel between the statutory . -
requirements for the NPDES and section
404 permit programs (e.g., compare
section 402(b) with section 404(h)).
This Part also specifies the process for
EPA approval of State programs and for
revision of State programs (including
any revisions to existing State programs
necessary to conform to the Clean
Water Act of 1977). Guidelines for EPA
overview of State programs, including
the requirement for a Memorandum of .
Agreement between the State and EPA,
and the process for objection to
proposed State NPDES permits are also
incorporated into this Part
Many of the substantive requirements
for the operation of the NPDES program,
whether administered by a State or EPA,
are contained in Parts 122,124 and 125.
The provisions of those Parts are
applicable to State programs only to the
extent they are incorporated by
reference into Part 123 (e.g., see
§ 123.12). Thus, if a provision of Part 122,
124 or 125 is not cross-referenced in Part
'The provisions of section 3O4 were redesignated
as a result of the Clear Water Act of 1977. What is
now designated section 304(i) was formerly section
304{h). Congress failed to make corresponding
changes to section 402. Cross references in section
402 to section 3(M(h) should, therefore, be read to
mean section 304(i).
123 it is not directly applicable to State
NPDES programs. For example, most of
the requirements of Part 124 do not
apply to States.
A person reading Part 122,124 or 125
should be able to determine from the
context whether the particular provision
is applicable to State administered
programs. Nonetheless, if any doubt
exists Part 123 should be consulted to
determine whether or not States must
conform to the particular requirement in
question. Where an applicable provision
of Part 122 incorporates requirements
from elsewhere in this Chapter it
becomes a State program requirement.
For example, § 122.20 is made
applicable to State programs under
§ 123.12 and requires that NPDES
. permits include monitoring
requirements. Under § 122.20{c) the
testing done by permittees is required to
conform to 40 CFR Part 136. Therefore,
these Part 136 requirements are
applicable to State programs.
Additional operational requirements
of State section 404 programs will be
proposed in the near future as part of
the "consolidated regulations". These
will closely parallel the requirements of
Parts 122 and 124 which are applicable
to State NPDES programs. Until the
remaining requirements to State section
404 programs are proposed. States
should seek guidance from Parts 122 and
124, from regulations promulgated by the
Corps of Engineers and directly from
EPA.
The provisions of Part 123 (including
the applicable sections of Parts 122,124
and 125) are minimum requirements and
the States are free to impose more
stringent requirements at any time.
Thus, in the final example of the
preceding paragraph, the State is free to
ignore the EPA-promulgated effluent
guideline if it chooses to impose more
stringent effluent limitations than EPA
requires under 40 CFR Subchapter N.
B. How Does This Part Relate to
Existing Regulations? Prior to the
promulgation of these regulations the
operational requirements for State
NPDES programs were contained in
former Part 124 and former Part 105
(Public Participation). The process for
approval and revision of State programs
was developed and contained in EPA
policy memoranda and informational
communications. The approval and
revision process contained in this Part is
merely a codification of existing
requirements and does not represent —
any change in these processes.
The public participation guidelines of
Part 105 were recently replaced with a
revised set of guidelines under Part 25.
In doing this EPA decided to remove
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State permit programs from the coverage
of Part 25 and to incorporate the
applicable public participation
requirements for State programs into
Part 123. This was done so all the major
requirements for State programs are
contained in one Part. In doing this EPA
has incorporated most of the substantive
provisions of Part 25: into Part 123 (in
certain instances this is done by
incorporation of applicable
requirements of Part 124).
Public participation in the permit
issuance process, pursuant to the
requirements of section 101(e) of the
Act, is fostered by the public notice
requirement (§ 124.41), the statement of
basis and fact sheet requirements
(§ § 124.33 and 124.34), the public
comment period and opportunity for
hearing requirements (§ 124.42), and the
response to comments section (§ 124.63),
all of which are applicable to State
NPDES programs.
A basic element of Congress' concern
for public participation is to make use of
a concerned public in identifying
possible noncompliance with permit
requirements. To this end Part 123
requires that all permit applications and
all effluent data be made available to
the public without restriction. All other
information must be made available to
the public unless shown to be
confidential. (See § 124.131.) In addition.
"quarterly noncompliance reports" and
annual reports prepared under § 122.23
must be made available to the public.
The availability of this data ensures that
the public can monitor the performance
of permittees.
Additionally, the regulations attempt
to assure that possible violations
identified by the public will be acted
upon by the State. Section 123.31
requires that States establish programs
to receive and review all evidence
submitted by the public.
Finally, citizens have a right to
directly initiate enforcement actions in
Federal court pursuant to section 505 of
the Act. That section also provides that
citizens may intervene as a matter of
right in any action in Federal court and,
in many cases, recover attorney's fees,
C. How Does This Part Relate to the
August 21.1978 Proposal?The following
is a discussion of the significant ,
comments received and changes made
to the August 21,1978 proposal. Editorial
changes have been made to all sections
and are not discussed. There has also
been a renumbering of the Part 123
sections. There are now fewer sections
in Part 123 because a large number of
the proposed sections were condensed
into § 123.12.
§ 123.1 Purpose and scope.
Many comments suggested EPA
should be allowed to complete the
permit issuance process, after approving
a State program, for those permits "in
the pipeline" at the time of program
approval. While this approach has merit
it cannot be adopted because section
402(c) of the act precludes permit
issuance by EPA after the date of
approval of a State program. See
Central Hudson Gas and Electric Corp.
v. EPA, 587 F.2d 549 (2nd Cir. 1978).
However, EPA will endeavor to avoid
these problems, to the extent possible,
whenever the transfer of program
authority is pending.
In an effort to clarify the status of
Federally issued permits after program
approval a new paragraph has been
added, §123.1(d). It provides that EPA or
the Corps (in the case of section 404
programs) retains jurisdiction over
Federally issued permits for all purposes
until they expire, unless arrangements
are made with the State for the State to
assume responsibility for administering
permits issued by the Federal
Government. This retention of
jurisdiction may be extended beyond
the expiration date of the permit, with
the agreement of the State, for the
purpose of resolving an ongoing issue,
such as an adjudicatory hearing or
permit modification request.
Many commenters opposed the
provisions in § 123.1 and § 123.62
(proposed § 123.102) which link the
permit programs under sections 318
(aquaculture) and 405(a) (disposal of
sewage sludge) to the section 402 permit
program. These comments suggested
that such a linkage is not authorized by
law and would impose an additional
burden on NPDES States. However, the
Clean Water Act of 1977 specifically
amended section 318 and 405 to provide
that permits issued under these sections
are NPDES permits. In light of the
prohibition against partial program
approval requiring that all elements of
the NPDES program be administered by
the State, State programs must now
include the activities specified in
sections 405 and 318.
To avoid any confusion, the language
.in § 123.1 and § 123.62 has been
clarified. A preliminary review of State
programs indicates that most existing
NPDES States have adequate authority
to control the discharges specified in
sections 318 and 405(a). Therefore, the
requirement that States have authority
for controlling these discharges should
not impose an additional burden. EPA
will assume that existing State programs
have the necessary authority and are
authorized to implement sections 318
and 405(a). Any State which lacks
authority should contact EPA and take
whatever action is necessary to modify
its program to conform.
Another new provision has been
added to this section (§ 123.1(f)) which
specifies that the public participation
guidelines of section 101(e) are now
incorporated into Part 123.
§ 123.2 Definitions.
Four new definitions have been
added, i.e., "draft permit," "proposed
permit," "Memorandum of Agreement,"
and "State/EPA Agreement." These
definitions conform to existing practice
and do not represent any new or
changed requirement.
A draft permit is the document
prepared by the Director after -
tentatively determining to issue a permit
to an applicant. This draft permit is then
put on public notice and circulated in
accordance with the applicable sections
of Part 124. A fact sheet on the draft
permit may be required. A statement of
basis is required whenever a fact sheet
is not prepared.
After the close of the comment period.
the Director analyzes all the information
submitted on the draft permit and
arrives at a final determination to issue
a specific document as a final permit.
Where EPA has not waived the right to
review the permit, this final
determination is subject to EPA review
in accordance with § 123.23 before it can
become finally effective. The State
Director's final determination is sent to
EPA as a "proposed permit" in
accordance with the Memorandum of
Agreement. The State Director may
issue the proposed permit as soon as
EPA concurs with the proposed permit,
or the time for EPA review expires. No
proposed permit is required under these
regulations whenever EPA has waived
its right to review (See § § 123.23 and
123.7).
The definitions of Memorandum of
Agreement and State/EPA Agreement
were added to provide clarity. There
were several comments questioning the
relationship between these two
documents. See the preamble discussion
of § 123.7 for a discussion of this
relationship.
§123.3 Elements of a program
submission.
A new section (§ 123.3) has been
added to clarify and identify all
requirements of a program submission in
one section. With respect to State
program forms, EPA is now more
specific as to which State forms it will
review (i.e., the permit form and the
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'32876 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
permit application form(s)). States will
. be required to use a standard Discharge
Monitoring Report (DMR) form
developed by EPA. These forms will be
printed by EPA and supplied to States
on request. States may, however,
substitute their State Agency's name,
address, logo, and other similar material
for EPA's on the forms. They are
designed to be read and analyzed by
computer. EPA will supply the computer
software associated with the
standardized DMR to States as
requested.
The use of standard national forms is
specifically provided for in the Act
(section 304(i)) and enhances EPA's
ability to assure a degree of national
uniformity of the program. Many
comments were received from national
companies requesting EPA to
standardize all forms. However, the
Agency believes that DMRs are the only
forms which should be standardized
now.
§ 123.4 Program description.
Several comments were received on
proposed § 123.3 objecting to the
prohibition against allowing more than
one State agency to issue section 404
permits. Most of these comments
suggested that this is inconsistent with
the efforts of several States to provide
"one-stop" permitting authorities
covering certain activities (e.g., power
plant siting councils). EPA disagrees
with these comments and believes that
it is important to have this permitting
authority in one State Agency.
§ 123.5 Memorandum of Agreement
with Secretary for section 404 programs.
This requirement was proposed as
§ 123.3(b) (the program description
section) but has been made into a
separate section for clarity. Some of the
proposed requirements of this section
have been eliminated or modified in
response to comments. For example,
joint processing agreements, while
encouraged, are not required. Likewise,
the State need not await the completion
of a environmental impact statement by
the Corps before permit issuance. The
most important feature of this -
Memorandum of Agreement (MOA) is in
paragraph (a) and remains unchanged.
This requires a delineation of section
404 permitting responsibilities for waters
of the State consistent with section
404(g)(l) of the Act.
§ 123.6 Attorney General's Statement.
Section 402(b) of the Act requires that
the State Attorney General certify that
the State have adequate legal authority
to implement the requirements of the
NPDES program. Where the State
program has independent legal counsel,
such counsel may submit the statement
in lieu of the State Attorney General. To
qualify as "independent legal counsel"
the attorney representing the State
agency must have authority to
independently represent the State
agency in court on all matters pertaining
to the State program.
Many comments indicated that the
requirements of proposed § 123.4(c)
were confusing insofar as that
paragraph listed a number of sections of
Part 123 which, in turn, cross-referenced
sections of Parts 122 and 124 as being
applicable to State programs. In order to
eliminate this confusion, the sections of
Part 123 which merely served to cross-
reference sections of Part 122 and 124
have been consolidated in a new
§ 123.12 (see discussion below]. Section
123.6(c) is now phrased to require a
certification that the State has authority
to implement the requirements of Part
123. EPA will continue its past practice
of supplying States with a model
Attorney General's Statement format
While EPA has a legal duty to
independently review State authorities,
the Attorney General's Statement is
given great weight in interpreting the
requirements of State law.
§ 123.7 Memorandum of Agreement
with the Regional Administrator (MOA).
The provision on scope of EPA waiver
of review (proposed § 123.5.(b)) drew
the most comments on this section and
has be modified. The language in the
regulations as proposed was based on
existing Agency policy on waiver and,
therefore, reflected what is presently
found in MOA's with the NPDES States.
As written, the provision on waivers
broadens the scope of waivers
available. This waiver of review is now
very broad for non-process wastewater
discharges; however, in some instances
such a waiver is possible only with the
prior approval of the EPA Deputy
Assistant Administrator for Water
Enforcement On the other hand, EPA
will not waive review of any general
permits proposed by the State. The
waiver provisions of this section only
specify the maximum waiver available,
and in some instances EPA may choose
not to extend this maximum waiver to a
State. This is particularly true for a State
with a new program where EPA
oversight is critical until the program
becomes established and experienced.
The entire paragraph on the contents
of the MOA (proposed § 123.5(c)) has
been reorganized to reflect a more
functional arrangement The '
requirement that the agreement be
reviewed and revised every three years'
(proposed § 123.5(b)) has been deleted
on the basis of many comments
suggesting tiiat it was unnecessarily
mechanical. Instead, MOA's should be
reviewed and revised as necessary to
reflect programmatic changes.
Relationship between Memorandum
of Agreement and State/EPA
Agreement. The State/EPA Agreement -
is an overall management tool which
provides a way for the Regional
Administrator and the State to
coordinate and, to the maximum extent
feasible, integrate programs
administered by EPA and the State,
emphasizing problem-solving
approaches to specific environmental
problems. The State/EPA Agreement
reflects important decisions on
environmental priorities, administrative
problems, timing, responsibilities and
allocation of resources. In FY1980, the
State/EPA agreement is to cover
programs under the Clean Water Act
Safe Drinking Water Act, and Resource
Conservation and Recovery Act. Other
environmental programs will be added
to the process in following years.
The Memorandum of Agreement is a
document signed by the Administrator
and the State which formally sets forth ,
the relationship between EPA and the
State in the administration of an
approved State permit program and
details specific procedures that must be
followed by both parties in the
development, issuance, review, and
enforcement of permits. The
Memorandum of Agreement is the legal -
basis upon which EPA predicates its
continuing decision that State-issued •
permits are consistent with the
requirements of the Clean Water Act
and implementing regulations. Because
of this, any proposed change to an MOA
must be reviewed and approved by the
Administrator to assure it is consistent
with the requirements of Part 123.
The Memorandum of Agreement and
the State/EPA Agreement should be
consistent This should not present a
problem since they generally address
different areas of the State/EPA NPDES
relationship. The State/EPA Agreement
should include the MOA, However, it
may not override it in the instance of
any inconsistency. If the State/EPA
Agreement indicates that a change is
needed in the MOA, the proposed
change must be reviewed and decided
by the Administrator.
§ 123.8 Sharing of information.
Many commenters raised concerns
about the treatment of confidential
information submitted to EPA or an
NPDES State, particularly when the two
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Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations 32877
/ agencies share information. For
example, when a State NPDES program
is approved EPA gives the State the
information in its files, A new 1123.8
has been added to specify how
confidential information is treated under
these circumstances. Persons interested
in this area should consult 40 CFR Part 2
which is also applicable.
§ 123.11 Requirement to obtain a
permit. ' 1
Proposed § 123.11[c), which specified
which State has permit issuing authority
for discharges into waters which form
the boundary line between States, has
been dropped.
§ 123.12 Operational requirements.
This is a new section which combines
the requirements of proposed §§ 123.24.
123.21,123.41.123.42,123.43,123.44,
123.51.123.52. and 123.61. Each of the
proposed sections cross-referenced
provisions of Parts 122,124 and 125 as
being applicable to State-programs.
Comments pointed out that this resulted
in a great deal of confusion in under-
standing what is required of a State.
Section 123.12 now combines, in a single
section, all the cross-references. In
addition, a person reading Parts 122,124
or 125 should be able to determine, from
the context, whether a particular section
is applicable to State programs. In case
of any doubt, however, § 123.12 is
controlling.
It should be noted that, while al! the
provisions of § 123.12 are applicable to
State programs. States need not have
detailed State regulations on each
provision. For example, as long as a
State has adequate legal authority to
implement § 123.22 (which indicates
how information is submitted to EPA)
and acts in accordance with § 123.22, it
need not have a regulation which
duplicates the Federal requirement.
Again, States are always free to impose
more stringent requirements than are
included in these regulations.
§ 123.12(a)(14}—-This section allows
States to operate a general permit
program. This section greatly modifies
and simplifies the requirements for State
general permit programs which were
proposed at 42 FR 6846 {February 4.
1977); see preamble discussion of
§ 122.48. Of course, operating a general
permit program is strictly optional. A
State may choose to require individual
permits in all cases. If a State chooses to
issue general permits it is subject to the
provisions of 1123,12(a)(14). This
specifies that such permits shall be
issued in accordance with § 122.43. and
that they are subject to a full 90-day
EPA review, including review by EPA
Headquarters for all proposed general
permits other than those tor separate
storm sewers.
§ 123.13 Control of disposal of
pollutants into wells.
The requirement of this section was
proposed in 1122.41(a) but was moved
to § 123.13 since it is applicable only to
State programs. Some commenters
questioned EPA's authority to require
States to control well disposal by
permit Section 402(b)(l)(D) of the Act
specifically requires States to have this
authority, although EPA lacks similar
authority under the Act. See Exxon
Corp. v. Train, 554 F.2d 1310 (5th Cir.
1977). NPDES1 States are urged to use the
authority required by this section in
developing and implementing an under-
ground injection control program
required under the Safe Drinking Water
Act. The requirements of these two Acts
are consistent and complementary. State
UIC program regulations will be
promulgated as part of EPA's
consolidated regulations.
The requirement of § 122.41, that
permit conditions for surface discharges
be adjusted where a portion of the
permittee's effluent is discharged under-
ground, into a POTW or by land
application, remains applicable to
States.
§ 123.22 Transmission of information
to EPA.
This section was proposed as § 123.23.
Several commenters felt that EPA
should provide the permit applicant with
a copy of any comment, objection, or
recommendation respecting a proposed
State permit. EPA agrees and has
incorporated such a requirement into
§ 123.22(a).
5 123.23 Objections to proposed
NPDES permits.
The requirements of this section were
not included in the August proposal
(Part 124, Subpart L was reserved for
these requirements) but were included
as a portion of the regulations
promulgated at 43 FR 22160-22164, (May
23,1978). EPA believes that the portion -
of those regulations dealing with EPA
objection to State permits belongs in
Part 123 where the other requirements
for State programs are contained.
Therefore, they will not be included in
Subpart L to Part 124. In transferring the
objection regulations into 1123.23, no
substantive changes were made.
Reviewability of Objections. Although
the Agency has not sought comment on
the incorporation of the objection
regulations into Part 123, and issue
associated with these regulations^ the
availability of administrative and
judicial review of EPA's decision to
object to a permit
An EPA objection is, in essence, a
determination that certain conditions
which are not included in a proposed
State permit are necessary to cany out
the requirements of the Clean Water
Act Section 402(d)(2) of the Act requires
the Administrator, when he objects to
the issuance of a permit, to state the
reasons and to set forth the effluent
limitations and conditions which the
permit would include if it were issued
by the Administrator. If the State fails to
submit a revised permit (after any EPA
hearing on the objection), the
Administrator may issue the permit. All
determinations underlying the objection
are then subject to Agency review in
accordance with Part 124 of these
regulations. Under those regulations,
contested provisions of the permit are
stayed during Agency review. Thus,
EPA's determinations do not affect the
discharger until the administrative
process is at an end and a final permit is
issued.
Where EPA objected to a permit prior
to the 1977 amendments to the Act. the
Act made no provision for further action
by EPA. The objection to the permit was
the final Agency action, and the Act
prohibited the State from issuing the
permit objected to. In these
circumstances, the Agency took the
position that the objection was
reviewable in the Court of Appeals as
the Agency's action in "denying any
permit" under section 509(b) of the Act
In general, the courts agreed; See,
Republic Steel Corp. v. Cos tie. 581 F.2d
1228 (6th Cir. 1978); Ford Motor
Company v. EPA, 567 F.2d 661 (6th Cir.
1977); Mianus River Preservation
Committee v. Administrator, EPA, 541
F.2d 899 (2nd Cir. 1976); but see.
Washington v. EPA. 573 F.2d 583 (9th
Cir. 1978).
This resulted in a situation which the
Senate Report on the 1977 amendments
described as the:
Impasse which may result when the
Administrator objects to the issuance of a
permit which is contrary to the provisions of
the Act and the State is unwilling to issue a
permit to the point source which is consistent
with the provisions of the Act Under the
present Act neither EPA nor the State may
issue a valid permit in these circumstances.
[CWA Legis. Hist. Vol. 4 at 706.]
Accordingly, the Congress amended
the Act to allow EPA to issue the permit
after an objection. The Senate
Committee report criticized EPA as
having been "much too hesitant" to take
actions to object too State permits, and
called for a "vigorous overview of State
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32878 Federal Register /Vol. 44. No. Ill / Thursday, June 7, 1979 / Rules and Regulations
programs to assure uniformity and
consistency of permit requirements and
of the enforcement of violations of
permit conditions." Id.
The theme of the Senate Report—that
the objection was an expeditious
mechanism to avoid delays in permit
issuance and resolve disputes between
the States and EPA—was echoed in the
Conference Report on Pub. L. 95-217,
which said:
After the date of enactment of this
provision the Administrator is expected to
use the authority given by this amendment to
issue a permit after objection to a State
issued permit. Thus any litigation over the
degree of effluent reduction required for a
source should take place in the context of
judicial review of the permit rather than in
the context of an enforcement action. *. *.-*.
Judicial review arising out of this provision
would be in the same manner as judicial
review of any EPA issued 402 permit. [
Legis. Hist.. Vol. 3 at 281.]
This passage clearly indicates that
EPA permit issuance under section 402
is the only reviewable action associated
with an EPA objection. The objection is
an interlocutory decision, one which has
no effect on the applicant and other
interested persons except to shift the
forum for hearings and review. Thus,
Congress thought judicial review of the
permit was the appropriate place to
review EPA's determinations. Several
other factors militate in favor of this
view:
1. The availability of administrative
review and-the stay provision hi EPA's
permit issuance regulations means that
EPA's objection determination has no.
effect on the discharger. In such cases,
review is properly delayed until Agency
action is final and effective. See Toilet
Goods Association v. Gardner, 387 U.S.
158,165 (1967). .
2. Judicial review of an Agency
objection prior to final permit issuance
would unnecessarily bifurcate the
judicial review proceedings and delay
final Agency action. Review of the
objection could consume months or even
years. Permit issuance, appeals, and
judicial review of the permit could
consume additional months or years.
3. The short time period for Agency
action precludes the sort of record
building by EPA which is a- normal
prerequisite of effective judicial review. v
See American Iron and Steel Institute v.
EPA, 543 F.2d 521 (3rd Cir. 1976}.
§ 123.31 Compliance evaluation
programs.
This section, which was proposed
§ 123.71, was refilled and slightly
condensed. A few new requirements
were included based on existing Agency
policy. In particular, this section now
requires that the State enforcement
program have procedures and ability to
receive citizen complaints about
possible program violations and to
ensure that these complaints are
adequately considered. This
requirement was included in the public
participation regulations of former Part
105 and as proposed in Part 25. In order
to include all the public participation
requirements for State programs in Part
123, this requirement was moved from
Part 25. EPA believe? that this is an
important aspect of involving the public
hi enforcement as mandated by section
§ 723.32 Enforcement. .
Proposed as § 123.72, this section
drew many comments. However, most
of the provisions of § 123.32 are
identical to the requirements of the 1973
regulations (former § 124.73). EPA has
not changed these provisions, although
minor wording changes have been made
for clarification. The new element of
" § 123.32 (proposed § 123.72(i)) is the
addition of a penalty policy provision
requiring States to calculate civil
penalties for deadline violations using
specified criteria. This requirement
generated a great deal of confusion.
Many commenters feared that States
would be required to implement all
aspects of EPA's penalty policy
including use of the penalty panel and
EPA's computer programs. While States
are strongly encouraged to use these, •-
§ 123.32(i) only requires States to
employ the basic precepts of the penalty
policy. It allows States to exercise
substantial discretion in settling civil
enforcement cases. No* change was
made to the proposed version.
Another new provision, § 123.32(h)(2),
has been added to clarify that State
enforcement proceedings may not
include additional elements of proof or
mental state for establishing violations.
EPA's approach has consistently been to
require States to have the same
enforcement remedies that are available
to EPA. In exercising this enforcement
authority, States should not have any
additional elements of proof or other
legal requirements which make State
imposition of penalties more difficult
than EPA action. <
A vailability of Resources. — Proposed
§ 123.81. Part of this proposed section
has been deleted and part has been
moved into § 123.4 (Program
description). Proposed § 123.81 (b)
(identifying criteria for EPA evaluation
of State resources) was deleted entirely
because these criteria are matters
relating to internal EPA review and do
not need to be promulgated in the form
of regulations. Nonetheless, EPA does
require that sufficient resources be
devoted to State programs. Proposed
§ 123.81 (a) has been incorporated into
§123.4.
§ 123,42 .Agency board membership.
Proposed § 123.83 on Agency board
membership drew a very large number
of comments, most of which argued that
it was too stringent. Nonetheless, since
§ 123.42 is identical to former f 124.94
and is clearly mandated by section
304(i)(2)(D) of the Act, no changes have
been made. ,
§ 123.51 and § 123.52 Section 402 and
404 approval process.
The approval process sections
(proposed § § 123.91 and 123.92) have
been clarified and made more specific.
The changes are consistent with the
process EPA has routinely employed in
these matters. Requirements from the
proposed public participation ]_ >
regulations (e.g., the need for EPA to
prepare a responsiveness summary)
have been added.
§ 123.61 Procedure for revision of State
permit programs. ' -
The procedures for State program .
revision have been clarified and include
a new requirement that EPA publish
notice of any action substantially
modifying a State program. Proposed
§ 123.103 was inserted into § 123.61.
§ 123.62 NPDESprogranTrevisions
under the CWA of1977.
A large number of comments were
received on the dates specified hi v
proposed § 123.102(c) for modifications
to State programs implementing the 1977
amendments. These dates have been
adjusted to be more realistic. Proposed
§ 123.102(a) was deleted because it
contained only optional changes. States
are still free to make these changes..
IV. Part 124—Procedures for
Decisionmaking Regarding National
Pollutant Discharge Elimination System
Permits
A. What Does This Part Do? Part 124
establishes the procedures which-EPA
will use for receiving permit
applications, writing draft permits, and
soliciting public comment on them. It
also establishes the procedures which
EPA will follow in issuing final permits
and holding evidentiary and panel
hearings. A number of provisions of this
Part are applicable to approved States
through incorporation by reference in
§ 123.12.
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Federal Register / Vol. 44. No. Ill / Thursday. June 7. 1979 / Rules and Regulations 32879
E. How Does This Part Relate To
Existing Regulations? In most cases, this
Part wifl not change the general
framework of the former regulations
- covering permit determinations.
Applications for permits win still be
filed with the appropriate permit issuing
authority; draft permits will be prepared
and made available for,eomment. After
comments have been received and
analyzed, any necessary changes will be
made by the permit issuing authority,
and a final permit will be issued. Any
interested person will then be able to
request an evidentiary hearing on any
factual issues involved.
However, significant changes have
been made in the procedures for
variances, modifications, and other
permit actions besides the basic
issuance of a permit: In the degree to
which permit decisions are documented
before an evidentiary hearing begins; in
the relationship of prior administrative
proceedings to any evidentiary hearing;
and in the hearing procedures for "initial
licensing". Each of these points, all of
which were the subject of comments,
are explained in the following sections.
C. Haw Does This Part Relate To The
August 21,1978Proposed Regulations?
The following is a discussion of the
significant comments received and the
basis for revisions made to Part 124 of
the proposed regulations, including the
integration of the section 301(h)
procedures into Part 124 (section 3W(h)
procedures were proposed separately on
April 25,1978, 43 FR 17484J. Minor
editorial changes have been made in all
sections.
§124.1 Purpose and scope.
A number of comments inquired
whether denials of a permit would be
subject to the same rights of public
comment and potential evidentiary
hearing as other permit actions. The
answer is "yes" and a new section has
been added to make this clear (§ 124.15).
A denial of a permit could be based on,
among other things, the discharger not
complying with the requirements of Part
122, Subpart B.
§ 124.11 Applications.
This section has been modified by
moving proposed § 124.11 (b) and (c)
into § 122.1CX Proposed § 122.17.
"Requests for additional information"
has been made part of this section.
§ 124.12 Special provisions for
applications from new sources.
[I] This section allows the Regional
Administrator to delay a hearing on a
new source determination until the
hearing on the final permit. Some ,
commenters objected to such a delay.
arguing that it could result in an
Environmental Impact Statement (EIS)
being written before the discharger had
an opportunity to argue on appeal that
the discharge was not a "new source."
The Agency believes the proposed
approach is efficient. Hearings on a new
source determination and permit terms
will often involve common issues and
witnesses. In such cases, the Regional
Administrator should have the option of
either bifurcating the hearing or waiting
until after a final permit is written to
hear all the issues. The choice will
depend on which option would consume
the least resources and time. Since EPA
is legally responsible for preparing the
EIS, EPA will share the burden of
making a wrong decision.
(2) Some comments claimed the EPA
"lacked authority to restrict the
construction of new sources pending
National Environmental Policy Act
(NEPA) environmental review, arguing
that the Agency may regulate only
discharges and has no power to regulate
construction of sources.
While it is true that EPA lacks
authority to regulate construction which
will not result in a discharge of
pollutants, EPA has an obligation under
NEPA to consider alternatives to the
proposed action where a permit
issuance would necessarily involve a
discharge. Judicial decisions under
NEPA have made it clear the EPA must
consider reasonable alternatives, and
that the alternatives (where a new
source is involved) must always include
not permitting the source. Where a
source's operation necessarily results in
a discharge, denial of an NPDES permit
is tantamount to denial of the right to
construct the facility. Thus, in such
cases, EPA cannot fully consider such
environmental matters as land use, air
quality degradation, solid waste
disposal problems, and others, without
consideration of alternatives which
involve no construction at the selected
site. Since construction of the facility
could limit or eliminate some of the
options which should be considered,
EPA has the authority to require that
NEPA review be completed prior to
actual construction. For a complete
discussion of this issue, see EPA
General Counsel Opinions. "Water
Pollution" at 31O-311 (NILS 1979).
Proposed § 124.13 Information required
for thermal discharge modifications.
This section, which was essentially
substantive requirements for thermal
discharges, has been incorporated into
Part 125, Subpart H.
§ 124.13 Modification, revocation and
reissuance requests.
Several persons urged that it would be
inefficient in processing modification
requests to require (as proposed in
1124.15) submission first of a request to
apply for a modification and then of the
application itself. EPA agrees and has
revised this section to state that the
modification can be based on the initial
request itself unless more information is
needed.
The proposed regulations also
intended to put modification requests
and variance applications on the same
procedural "track" as other permit
applications. They did this by requiring
those seeking a modification to write to
EPA and request permission to apply for
a new permit. If the request was
granted, an application could then be
filed and would be processed like any
other application. This basic approach
has been retained in the final
regulations.
Suggestions for an automatic right to a
hearing when permit modification
requests are denied, have been rejected.
Departures from the five year cycle of
permit issuance and reexamination laid
down by section 402(b)(l)(B) of the Act
should not be encouraged. If
encouraged, they could keep numerous
permits in a state of perpetual
reexamination to the detriment of the
water pollution control program. By the
same token, the regulation has been
amended to make clear that even
modification requests which are granted
only reopen the permit to a limited
extent.
§ 124.14 Permits required on a case-by-
case basis.
This section (proposed § 124.16)
provides that sources which in the
normal course are subject to a general
permit program under § 122.48, may be
required to apply for an individual
permit in certain cases. Comments
urging that an evidentiary hearing be
afforded before requiring individual
permit application have not been
accepted. To allow this would produce
long delays and a potential for two
consecutive evidentiary hearings on
closely related issues. Instead, the
question whether an individual permit
should be required at all will be open to
full reconsideration as part of the
deliberations on the potential terms of
any such permit.
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32880 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
§ 124.21-24 State certification.
(a) State certification under section
401 of the Act was also the subject of
numerous comments.'
(1) Many commenters objected to the
delays caused by the State certification
- process in the NPDES program.
Specifically they thought that the
provision in the proposal for potentially
allowing a State one year to certify was
unconscionable. In response to those
comments the regulations have been
modified so that the right to certify will
be deemed waived unless exercised
within a specified reasonable time
which shall not exceed 60 days unless
the Regional Administrator finds that
unusual circumstances require a longer
time.
Because of some ambiguity in the
certification provisions concerning the
role of State certification in the EPA
permit issuance process, the
certification provisions were amended
so as to set out a realistic, workable
procedure consistent with the statute. A
State will now be required to identify
those provisions which it finds
necessary to comply with applicable
State or Federal law. However, since
certification as to Federal requirements
would duplicate EPA's work, EPA
expects that ordinarily States will limit
their certifications to requirements of
State law.
Some problems have resulted from the
practice of certifying draft permits,
which practice has arisen from the
practical difficulties of certifying
applications. In particular, certifications
have not always clearly stated exactly
what conditions are necessary to
comply with State law, and whether less
stringent conditions would also satisfy
State law. The final regulations remedy
these problems by requiring States to set
forth in all cases the minimum terms and
conditions which will be necessary to
comply with applicable law. For
example, if a State certifies a permit
with an effluent limitation imposing a
daily maximum BOD of 25 mg/1, it will
be required to identify also a ceiling
representing the minimum level of
control, such as 30 mg/1 or 40 mg/1,
which the State finds necessary to
comply with State law. In responding to
public comments, or in an evidentiary
1 EPA recognizes that the former regulations in 40
CFR Part 123 are in need of revision. The "substance
of these regulations predates the 1972 amendments
to the Clean Water Act and has never been
updated. However, because of the impact of State
certification of non-NPDES permits on a myriad of
Federal programs, it will be necessary to consult
with the affected agencies in some detail before
changes are made. Meanwhile, the current
certification requirements for Federally issued non-
NPDES permits or licenses have been moved from
Part 123 to Part 121.
hearing,'EPA will be barred from
considering any effluent limitation less
stringent than the "ceiling" set by the
State in its certification.
If the State fails to provide the
"ceiling" required by these rules, EPA
will be free to consider any changes
which it finds appropriate during the
subsequent permit review process. Of
course, the Agency has an independent
obligation to include hi permits effluent
limitations which are necessary to
comply with State law, including water
quality standards, whether or not the
State has certified. See Decision of the
General Counsel No. 58.
While EPA recognizes the burden that
this procedure imposes upon States, the
only logical alternative is unacceptable
as a practical matter, that is continual
resubmission to the State for
recertification each time a draft permit
is made less stringent as a result of
public review during the permit issuance
process.
(2) Changes have been made to" allow
EPA to modify a permit under certain
circumstances if a State changes its
certification during the EPA permit
review process. The modified
certification must be based upon
changes in State law or upon a State
court decision. Moreover, if a permit is
final before the modified certification is
received, it will be modified only to
delete provisions resulting from a
certification found invalid by a State
court. These limitations are necessary to
avoid a "moving target" of State law
during the permit's life. See § 124.86(cj
and preamble discussion of that
paragraph for a fuller treatment of this
issue.
(3) A new section § 124.24 has been
added to the State certification Subpart.
This addition contains the provisions for
concurrence/certification from the April
25,1978 proposal for section 301(h)
"modifications. The major divergence
from normal permit procedures is that
NPDES States (or the certifying Agency
within a non-NPDES State] must
concur/certify as described in this new
section. Proposed § 124.61(a}(2) stated
that no final permit shall be issued by
EPA which grants a section 301(h)
modification until the appropriate State
has been given 30 days to approve or
disapprove the modification. If the State
disapproved the modification within 30
days, the modification would be deleted
from the permit. Proposed § 233.45 had a
similar provision except that there was
no time limitation. One comment to
proposed § 233.45 suggested that EPA
should allow 30 days for State
concurrence or concurrence would be
considered denied. Although EPA
recognizes the need to reduce delays in
section 301(h] processing, we do not
believe we can deem concurrence
denied (as opposed to waived) if not
granted within a certain number of days.
Therefore we have instead chosen to
deem concurrence/certification waived
after 60 days rather than adopt the
suggestion that concurrence be deemed
denied. . - ' " ' _
§ 124.31 Draft permit.
A number-of comments objected to
the statement in proposed § 124.41(a)
(now § 124.31(a}) that "any other
relevant information" in addition to the
"types specified could be considered in-
deciding on a draft permit. Although the
Agency has retained the language, it is
not intended to allow draft permits to be
based on material that is not reflected in
the administrative record.
§ 124.32 Other draft permits.
"This section provides that when EPA
moves to revoke or suspend a permit, it
shall do so by formulating a new draft .
permit subject to notice and comment
and potential evidentiary hearing.
Although commenters did not object to
. the purpose behind this section (to make
sure that such decisions are made
through the same basic procedures that
apply to the permit issuance) some
commenters, suggested that the permit
holder should be notified before any
such draft permit was issued. EPA has
not accepted this suggestion because the
draft permit will constitute sufficient
notice well before any legally effective
action is taken. This section has also
been revised to require all draft general
permits other than separate storm
sewers, (whether issued by EPA
Regional Offices or the States) be sent
to the EPA Deputy Assistant
Administrator for Water Enforcement
for 90 days for his/her concurrence or
denial.
§ § 124.33-35 Statement of basis, fact
sheet, and administrative record.
A major purpose of the proposed
regulations was to increase the level of
explanation of how and why EPA
arrived at specific permit conditions,
and to specifically identify the
documents or other information
considered in doing this.
The proposal would have done this
by: (1) requiring each permit to be
accompanied by a fact sheet explaining
the factors considered and the reasons
for the decision, and (2) requiring
permits to be based on an
"administrative record."
The administrative record could
simply be an adequately organized file
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Federal Register / Vol. 44, No. Ill / Thursday. June 7, 1979 / Rules and Regulations 32881
drawer containing the relevant
information. This ensures that the
information considered in formulating a
permit is identified and publicly
available for comment. The
administrative record requirement does
not mean that there must be individual
copies of the monitoring or reporting
conditions or effluentjlimitations
guidelines and development documents
in the file, as long as they are properly
cited. EPA's response'to the many
comments that were received on these
provisions is provided below.
[1] A number of commenters argued
that to prepare a detailed "fact sheet"
and administrative record for every
permit would result in a lot of
paperwork for which there was no real
demand. EPA agrees with these
comments since, in our experience,
although all permits are made available
for public comment, over 90% of the
EPA-issued permits become final
without any public comment or requests
for an evidentiary hearing. Accordingly,
§ 124.34 (proposed § 124.44) has been
rewitten to require a "fact sheet" only
for permits to major dischargers and
other controversial permits including all
variances or modifications. Permits for
small discharges will not require a fact
sheet and will only require a less
detailed "statement of basis".
In many cases the "statement of
basis" could consist of the internal
memorandum prepared within the
Agency which informs the person
signing the permit of the guideline or
other source of the effluent limits and
any issues which the permit raises. By
utilizing such an approach, EPA believes
we are maximizing the utilization of the
permit issuing authority's limited
resources without denying the public or
permittee basic information upon which
to judge the adequacy of the permit
The regulations have also been
revised to provide explicitly that a fact
sheet can be prepared for any permit
which is the subject of widespread
public interest during the public
comment period and for which no fact
sheet was prepared originally.
{2} Since the fact sheet can be quite
extensive. States objected to mailing a
copy to each person on a mailing list
since most permits have proved to be of
little interest. Therefore, the public
notice of every draft permit will be sent
to those on the mailing list but the fact
sheet (or statement of basis) will be sent
only on request.
(3) Because the fact sheet requirement
has been limited to major or
controversial discharges, the
requirement of a special level of
discussion for discharges of over 500,000
gallons per day has been eliminated.
Distinctions among major or
controversial permits based on the
amount of water discharged do not
correspond to any real differences in the
degree of discussion that is advisable.
(4) Comments from both industry and
EPA Regions on proposed
§ 124.44(a)(6)(iii) suggested deletion of
the requirement that the record contain •
all documents cited in an EIS or similar
analysis. These comments argued that
since so many documents are generally
cited, the requirement would be
impossible practically and would also
make the record less, rather than more
useful. EPA agrees with these comments
and has revised this section accordingly.
Persons who wish specific documents to
become part of the record may supply
those documents as part of their
comments under § 124.42.
This section has also been reworded
to clarify that generally available
material cited in a fact sheet does not
need to be physically included in the
administrative record.
§ 124.36 Applicability of Subpart D to
draft permits incorporating section
301(h) modifications.
A new section, § 124.36, has been
added to indicate that Subpart D is
applicable to section 301(h) proceedings
except, as provided in proposed Subpart
C of Part 233, the'Administrator, or a
person designated by the Administrator
will prepare the draft permit, not the
Regional Administrator as with other
draft permits.
§ § 124.41 and 124.42 Public comments
and public notice.
The public notice sections were
amended to cut time and paperwork
requirements based on overwhelming
objections to the proposed changes. On
the advice of the States, the public
comment period reverts from the
proposed 45 days to the former
regulations' 30 days. Many States felt
that 30 days is sufficient for the vast
majority of noncontroversial permits
and additional time can be made
available for those permits that generate
public interest. EPA suggests, however,
that a liberal policy be followed in
granting extensions of the comment
period.
Some commenters suggested that
other methods of public notice of an
action should be authorized. EPA and
the States have found that the mailing
list has been by far the most effective
means of eliciting public participation
into the NPDES process. Therefore, we
urge States to develop mailing lists as
provided or by any additional means
they have found effective.
Similarly, States and EPA Regional
Offices both stated that newspaper
notices were ineffective in eliciting
public comment and were a substantial
drain on limited resources. EPA agrees
and has revised this section to make
newspaper notices shorter as well as
optional if other means, such as posting,
are utilized.
The proposed regulations allowed
certain Federal and State agencies a
separate early chance to comment on
permit applications before the public
comment period began. This provision
has been eliminated in response to
comments both from EPA Regions and
from representatives of dischargers.
These agencies now will be expected to
comment during the public comment
period. In particular cases, however,
they may still be consulted informally
before the draft permit is formulated.
This revision also deals with those
comments which argued that Ihe
comments of other agencies on a draft
permit must be reflected in the record.
As noted elsewhere in this preamble,
any permit terms in EPA-issued permits
must be supported by the administrative
record whether or not they are based on
the views of other agencies.
§ 124.43 Obligation to raise points and
provide information during the public
comment period.
This section is discussed below along
with § 124.76.
§ 124.44 Terms requested by the Corps
of Engineers and other Government
agencies.
Proposed §§ 124.21 and 124.22 stated
the circumstances in which terms may
be included in an NPDES permit at the
request of another Federal agency.
Although many comments were received
on this, no substantive change has been
made because EPA continues to believe
the language in the proposal was
correct. The Act says that EPA "shall"
include hi permits those conditions
requested by certifying States and the
Corps of Engineers.2 Any challenge to
those conditions must therefore be made
through the State or Corps of Engineers
procedures for challenging decisions.
Terms based on the comments of other
agencies without such veto authority
must be within the discretion of EPA
"The statement of one commenter that the Corps
authority under section 4O2{b)(6) of the Act is
limited to vetoing permits, not imposing conditions
on them, seems simplistic to EPA. A Corps of
Engineers' statement that certain terms must be
included in a permit can properly be viewed as a
statement that the permit will be vetoed unless it
contains those terms.
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32882 Federal Register / VoL 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
under the Clean Water Act and are
therefore subject to the same procedures
that apply to permits generally.
In response to comments, affected
States are now included in § 124.44(c).
This revision clarifies the right of such
States under sections 402(b](5) and
401(a)(2) of the Act to require more
stringent requirements so that a
discharge of another State does not
violate its water quality standards.
§ 124.45 Reopening of comment period,
Proposed § 124.44 (now § 124.45)
allowed for reopening of a comment
period (or reproposal of a permit) at the
discretion of the Regional
Administrator.
Several comments suggested an
automatic "reply comment" period in
which the discharger and others could
respond to points made during the main
comment period. EPA agrees that this
may be a good idea in some specific
cases, but it could be unnecessarily
burdensome if required by regulation hi ~~
all cases. Therefore, the proposal has
not been changed.
Subpart F—Special Provisions for
Variances and Statutory Modifications
In response to several suggestions, the
procedures for variances have all been
placed in a single Subpart. This revision
is done to present the public with an
organized view of how variances will be
handled within the normal permit
procedures.
Under the Clean Water Act and the
former regulations, there are more than
a dozen different statutory or regulatory
provisions on which permit
requirements could be based, and seven
provisions under which a variance from
those provisions could be granted. Many
of these provisions are not covered in
the existing regulations, and where they
are, the references are scattered through
various parts of the Code of Federal
Regulations.
Subpart F deals with the problems in
two ways. First, it consolidates into one
Federal Register Subpart the former
procedures for making decisions'on -
permit terms contained in 40 CFR Parts
122 and 402 (relating to thermal
discharge requirements) and the former
Part 124.
Second, it specifies where in the
sequence, "application—draft permit—
comment—final permit", permit actions
other than the simple one of deciding on
permit applications should fit
In particular, it provides that
whenever possible, a variance must be
applied for before the close of comment
on a draft permit. This will ensure that
there is an opportunity to consider all
the relevant issues before deciding the
terms of a final permit and that issues
are not raised at a later date for
purposes of delay. The regulations also
provide that where a variance is
properly requested after this stage but
before a permit has become final under
§ 124.101, the decision on the variance
will still be made through the same
permit procedures that apply to other
permits. This will be done in appropriate
cases by issuing a new supplementary
draft permit embodying the Agency's
response to the variance request, and
holding action on the original permit
until the supplementary permit has
reached the same procedural stage and
the two permits can proceed together.
§ 124.51 Time deadlines for
applications for variance from and
modifications of effluent limitations.
(1) A number of comments argued that
the time limits for variance applications
set forth in proposed § 124.14 were too
strict These comments haveiieen
accepted in a number of particulars.
(a) The statute requires applications
for variances under section 301(c) and
under section 301(g) to be submitted 270
days after promulgation of the relevant
effluent guidelines or by September 25,
1978, whichever is later. However, since
EPA has not yet issued crieteria for such
applications, it clearly would have been
unreasonable to have required a
complete application by last September.
Accordingly, these regulations
incorporate the requirements of previous
interim final regulations stating that
applicants need only have submitted a
very brief notice by September 25,1978,
(or within 270 days of the promulgation
of an applicable effluent guideline) to
qualify under that deadline. See 43 FR
40859 (Sept. 13,1978).
Similarly, in the case of section 301(h),
§ 124.51(c)(l) revises proposed 40 CFR
§ 233.32 to indicate that a preliminary
application must have been submitted to
EPA by the statutory deadline, but the
final application should not be filed until
the section 301(h) criteria are
promulgated in final form in Part 125,
Subpart G. The criteria, when
promulgated, will also specify the
method of, and timing for, making a final
application. This revision to the tuning
requirement is necessary because the
statutory deadline has passed and EPA
has not yet issued section 301(h) criteria.
(b) Dischargers who wish to be
considered for a section 301(c) or
section 301{g) variance will be required
to comply with the substantive
requirements of § 124.43 and Part 125
(once they are promulgated) by the close
of the public comment period of their
draft permits.
In some cases, draft permits will
contain effluent limits that are not based
on effluent guidelines but may still be
eligible for variances. In those cases, it
would be impossible to submit
supporting evidence that a variance
should be granted during the 30-day
period of public comment. Therefore, in
those cases, and in other cases the
Agency believes appropriate, the
Regional Administrator may grant an
extension for up to six months to allow
the applicant to complete his or her
submission.
However, there will be many times
when waiting until the last minute of the
comment period would not be in the
interest of the permitting process, the
applicant, or the public. Therefore, in
those cases where it is clear that a
discharger will be submitting an
application for a variance, the Director
may require the applicant to submit that
application in full before the draft
permit is formulated. This req'uirement is
intended to reduce the time for permit
issuance, especially in those cases
where it is clear that a variance or
modification will be applied for, such as
where the discharger has submitted the
270 day application for a section 301(c)
or 301(g) variance (5 124.51(b)(2)(i)) or
where a fundamentally different factors
variance is still pending on the first
permit This will lower the permit
processing costs for the permitting
agencies., the applicant and the public
because there will no longer be a draft
permit subject to a public notice that is
irrelevant to the issues in the final -
permit -
§ 124.52 Decisions on variances and
modifications which EPA or the State
can grant.
Section 124.52 explains how decisions
will be made on variances. There is a
distinction between the variances and
modifications EPA and the States may
grant and those the Act requires that
only EPA may grant
(1) Many commenters objected to EPA
and not approved NPDES States maVing
variance determinations for
fundamentally different factors
variances, economic variances,
environmental variances, and section
301(h) secondary treatment waivers.
These commenters thought the States
with NPDES authority have the
authority to rule on these particular
variances.
The 1972 Amendments to the Federal
Water Pollution Control Act carefully
spell out the relationship between the
Federal Government and the States in
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32883
achieving the Act's goals of eliminating
the discharge of pollutants from the
'Nation's waters. A major responsibility
of the Federal Government under the
Act is the development and
promulgation of uniform national
technology-based standards for
categories and classes of industrial
discharges. Variances from these
standards are allowed if the applicant
can show the plant is fundamentally
different from those plants used in
developing the limits. Since EPA
promulgates those national standards,
EPA, not the States, is the authority best
able to judge if a plant is fundamentally
different from those that were the basis
for the standard.
The variance sections in the Act
clearly designate who the Congress
intended to make the determinations.
For example, section 316{a) provided for
thermal waivers to be granted by either
EPA or NPDES States. Specific grants of
authority appear hi the 1977
amendments which added sections
301(g), 301(h) and 301(i). Section 301(g)
authorizes "the Administrator, with the
concurrence of the State" to grant
variances from BAT effluent limitations.
Similarly, section 301(h) provides that
permits incorporating modifications of
the secondary treatment required may
be issued by "the Administrator with
the concurrence of the State. . . ."
Section 301(i)(l), municipal tune
extensions like section 316(a) variances,
may be granted by the "Administrator
(or, if appropriate, the State)." Finally,
section 301{c), only mentions the
Administrator and so variances under it
can only be granted by the Agency.
(2) A number of commenters objected
to the condition in the proposal that
when the Act required State
concurrence in a variance that is issued
by EPA, the variance request would not
be considered by the Agency until the
State had first approved it. In response,'
proposed § 124.14(e) has been modified
in § 124.52[b) to allow the State Director
to concur after EPA makes a draft
determination. In States where EPA is
the permit issuing authority a State will
certify the draft permit in the regular
procedure. All State (whether NPDES or
not) must concur/certify section 301(h)
determinations before EPA can issue the
section 301(h) modified permit (see
§ 124.24).
Some commenters objected to
considering States' views at all where
the act did not explicitly require it.
However, States have authority, where
State law requires it, to set more
stringent limitations for a permittee
under sections 401 and 510. Though EPA
grants the variances, the variance
sections do not allow EPA to overrule
State authority to require more stringent
State requirements. Therefore, it is not
appropriate to disregard State input into
variance determinations.
§ 124.55 Special provisions for
modifying the secondary treatment
requirement under section 301(h).
Paragraph 124.55(a) sets out the
requirements for submission of
additional information necessary to
make a section 301(h) determination.
This section is substantially the same as
proposed § 233.32(c) except that it states
that if an application, "on its face,"
demonstrates that the applicant is not
entitled to a section 301(h) modification,
then the applicant cannot submit
additional information and the
application will be denied. This
requirement is consistent with
Congressional intent, [CPV/1 Legis. Hist.
at 448] and has been added to clarify
EPA's original intent behind proposed 40
CFR § 233.32(c). This is similar to the
"summary denial mechanism" suggested
by some commenters.
States argue they should be allowed
to issue permits with section 301(h)
modifications. EPA disagrees and
believes that the proper procedure is
dictated by the Act itself. Section 301(h)
provides, not that EPA may modify an
existing NPDES permit to allow a less
than secondary discharge if the
permittee meets the requirements of
section 301(h), but that EPA may "issue
a permit under section 402 which
modifies the requirements of section
301(b)(l)(B)" (emphasis added). This
requires EPA to assume full NPDES
permitting authority—even where the
State has an approved NPDES permit
program—hi issuing any section 301(h)
permit. This interpretation is buttressed
by the fact that the statute calls only for
"State concurrence" in any section
301(h) permit issued, and does not
require the State to crank the permit
back into the State permitting process
and add additional terms and conditions
necessary to assure compliance with
sections of the act other than section
301(h).
EPA believes this result is not only
required by the act but makes a great
deal of sense as a practical matter. Any
other approach would bifurcate the
permitting process for section 301(h)
dischargers between EPA and the State,
resulting in a great deal of confusion
(especially since there is some overlap
between section 301(h) requirements
and other applicable requirements of the
act) and delaying issuance of final
permits. To clarify this issue, EPA has
revised proposed § 124.61(a)(2) (now
§ 124.55(d)) to indicate that NPDES
States may (not must) revoke the
existing NPDES permit when they
concur in the modification and they may
also choose to cosign the section 301(h)
permit. EPA hopes that NPDES States
will choose to revoke any existing State-
issued permits and cosign the EPA-
issued section 301{h) permit because this
will reduce confusion as to permit
limitations.
i 124.61 Stays.
(a) Proposed § 124.61(a) provided for
automatic stays of contested permit
provisions if an evidentiary hearing
request is granted, or if a petition for
review of denial of a request for an
evidentiary hearing is filed with the
Administrator.
Numerous comments were received
on this provision. One recurrent theme
was that if a permit was stayed by EPA,
compliance schedules hi it should be
extended for the same period that the
stay was in effect. This suggestion has
been accepted except where the
technology is not contested but the
ability of such technology to reach
certain effluent limits is. In addition,
compliance schedules cannot be stayed
where failure to meet a statutory
deadline or a permit term of more than
five years would result from such an
extension. It has been EPA's consistent
position that it lacks power to grant
dischargers more time to comply with
the statutory mandate than Congress
has decided they should have, or to
extend the statutorily prescribed permit
term. However, permits may be
continued by operation of law under the
Administrative Procedure Act See
f 122.12(b).
(b) A number of comments objected to
the statement hi proposed
§ 124.61(c)(2)(ii) (now § 124.61(d)) that a
new source or a new discharger is
considered to be without a permit
pending the completion of any
evidentiary hearing. However, this
provision is only a logical extension of
the provision (which most of these same
commenters endorsed), that new permit
terms are stayed pending those hearings
and therefore has been retained.
For this reason EPA has deleted the
provision allowing the Regional
Administrator to approve the start of
discharge by a new source or a new
discharger even though a hearing on that
source's permit is still in progress. Such
sources which are concerned about their
ability to open on schedule under these
provisions should apply for the
necessary permit far enough hi advance
of their target opening dates to allow
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32884 Federal Register / Vol. 44, No. Ill / Thursday. June 7, 1979 / Rules and Regulations
time for completing all necessary
procedures.
EPA has recently established several
procedures to expedite the issuance of
NPDES and other EPA permits (e.g-
Prevention of Significant Deterioration
permits for air new sources) to new
facilities. EPA has designated in each
EPA Regional Office a New Source
Coordinator charged with the
responsibility of shepherding these
applicants through the permit process.
EPA has also adopted a policy of (1)
informing each new facility within 30
days of request whether a particular
permit program will apply to the new
facility and (2) determining within 30
days of receipt whether an application is
complete. Furthermore, EPA Regions are
establishing permit tracking systems or
procedures to ensure that new facility
applications are addressed
expeditiously. All of these initiatives
will help minimize delay.
One comment also asked about the
relation of § 124.61(c](2][ii) to proposed
§ 124.11fc) (now § 122.10(c)) which
required new dischargers to apply 180
days before the scheduled start of
operations. The 180 days is a minimum
period; it does not preclude applications
before then.
(c) A number of commenters asked
that a provision be made for appealing
stays, or asked about the status and
applicability of determinations that
permit terms were uncontested and
severable from contested ones.
In these regulations we have
accommodated these concerns by
requiring the Regional Administrator to
identify in the notice of a grant of the
hearing the terms of the permit which
are not contested and therefore are
enforceable against the discharger
during the permit proceedings. In some
cases it may be necessary for the
Regional Administrator to write new
conditions to represent uncontested
requirements. For example, if a final
permit would require compliance with
effluent limitations representing the
application of both technologies A and
B, and the discharger agrees that
compliance with technology A is
appropriate but challenges application
of technology B, the Regional
Administrator must write specific permit
conditions requiring the installation of
technology A. The fact sheet or
statement of basis should include the
type of technology contemplated by the
permit writer to meet any technology-
based limits in the permit
Appeals from determinations on
uncontested conditions will be available
only through the provisions of § 124.101.
(d) A number of comments questioned
the provisions in the proposed
regulations that made certain deadlines
run from the date of receipt of a ~
specified notice. Such a provision could
result in different deadlines for different
people, and make it more difficult to find
out when deadlines actually did elapse.
Accordingly, these provisions have been
changed to specify the time when the
notice is given as the starting point for
deadline, and three additional days
provided to cover mailing delays
(§124.134). >
§ 124.64 Response to comments.
A major part of the effort in the
proposed regulations to increase the
extent to which EPA explains the basis
for permits was requiring a response to
comments received on a draft permit.
The substance of those proposed
provisions has been left essentially
unchanged. However, proposed § 124.63
("final fact sheet") has been retitled
"Response to comments" to clarify that
a document must be prepared for every
issued permit which responds to all
significant comments and objections to
the draft permit and indicates which
provisions have been changed and the
reasons for the change. A comment has
also been added to make clear that if
new points are raised during the public
comment period, EPA has the right to
add new material to the administrative
record to document its response to those
new points.
§ 124.65 Administrative record.
The "administrative record"
provisions have not been changed,
except to delete the proposed
requirement that all records be indexed
and subcategorized. Though this may be
advisable as a matter of policy for large
records in significant cases, it seems
inadvisable to require it across the
board by regulation.
At the request of NPDES States, the
administrative record, as detailed in this
section, is not a requirement for State
programs.
Subpart H—Evidentiary Hearings for
EPA-Issued Permits
§ 124.71 Applicability.
The provision in this section for not
holding evidentiary hearings on general
permits was approved by the one
commenter to address it directly. The
Natural Resource Defense Council in its
comments did not criticize this approach
but asked what alternative mechanisms
for tightening requirements on
individual sources subject to general
permits were available. In response,
EPA wishes to point out that interested
persons are always free to suggest in
their comments on draft general permits,
or in a petition to EPA, that issuance of
an individual permit should be required.
EPA will then be obliged to answer the
points made and to issue an individual
permit if it appears that step is required.
§ 124.72 Definitions.
Comments from the Natural Resource
Defense Council pointed out that the
proposal, by automatically making the
permittee a party to any evidentiary
hearing, could result in the permittee not
having to make the commitments to
make witnesses available and to file
certain papers to focus the issues that
are required of those who become
parties through their own affirmative
actions.
EPA agrees with this comment and
has therefore deleted this provision.
Permittees will still get notice of all
hearing requests, and will be free to
intervene in hearings to protect their
interests.
\124.74 Request's for evidentiary
hearings.
(a) The test for "standing" to request
an evidentiary hearing has been relaxed
in the final version of the regulations.
Instead of the stricter test contained in
the proposal, the standard in the
existing regulations will be retained.
(b) Some comments questioned the
provision in § 124.74{b)(4J that persons
requesting a hearing agree in advance to
make potential witnesses under their
control available to testify. EPA lacks
explicit subpoena authority for hearings
held in connection with NPDES
proceedings and this language is
necessary to provide some equivalent
assurance that needed witnesses will be
available. In line with this purpose, an3
as suggested by other comments,
§ 124-74{b)(4} (now § 124.74(e}{4}) has
been revised to clarify that the duty to
produce witnesses only applies when
the Presiding Officer has ordered their
production.
§ 124.75 Decision on a request for a
hearing.
Section 124.75 and § 124.101 have
been revised to clarify that a Regional
Administrator's denial of a hearing may
be appealed to the Administrator, and
the Administrator may review or reverse
any legal or policy conclusions on which
that denial was based.
§ 124.76 Obligation to submit evidence
and raise issues before a final permit is
issued.
Two major purposes of the proposed
changes to EPA procedures were to
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encourage resolution of issues at the
time of comments on a draft permit,
rather than in the far more burdensome
context of an evidentiary hearing, and to
link that hearing explicitly to the
preceding stages of permit issuance. At
present even where afl major issues
have been fully analyzed and resolved
before the final permit was issued, they
can be re-examined anew in the
evidentiary hearing. The Presiding
Officer may not know what happened
regarding the permit before the hearing
began. Also, new issues might be raised
at the evidentiary hearing even though
they could have been settled much more
simply if raised at an earlier stage.
The proposed regulations attempted
to remedy this situation in two ways.
First, the administrative record on which
the final permit was based would
automatically go into evidence at any
evidentiary hearing so that the
decisionmaker would have the benefit of
the earlier stages of consideration of the
issues.
Second, no issue could be raised at an
evidentiary hearing if it was not first
raised during the comment period on the
draft permit (proposed § 124.53). An
exemption from this requirement was
provided if "good cause" could be
shown for the failure to raise the issue
earlier. These provisions have largely
been retained in the final regulations
(§ 124.43). The purpose is not to exclude
any person from EPA's decision-making
process, but rather to focus the attention
of the Agency and parties on the
informal comment and public hearing
. stage of the permit issuance process.
EPA believes that policy issues and
most technical issues relating to the
issuance of NPDES permits should be
decided in the most open, accessible
forum possible, and at a stage where the
Agency has the greatest flexibility to
make appropriate modifications to the
permit Evidentiary hearings, because
they entail great delays, because they
are cumbersome, and because only the
well-financed can afford to participate,
are disfavored as a means of solving
any issues other than contested factual
issues requiring cross-examination. Not
only will this in the long-run lead to
greater and better informed citizen
participation, it will increase efficiency
in the permit issuance process and will
speed application of pollution control
requirements.
Many comments were received on
these different aspects of the proposal.
The proposed changes were very widely
endorsed and supported in principle.
However, non-governmental
commenters argued that the regulations
went too far in tying the evidentiary
hearing to the preceding notice-and-
comment stages. These comments have
been largely accepted. Specifically,
§ 124.53 (now § 124.43) and § 124.76
have been amended very much along
the lines suggested in the comments of
the Utility Water Act Group.
In addition, though the proposed
requirement for automatic receipt of the
administrative record in evidence has
been retained, a comment has been
added and the section has been changed
slightly to make clear that testimonial
material in the administrative record
should be subjected to' the same tests of
its testimonial value as other testimonial
material introduced at the evidentiary
hearing.
Some comments argued that receiving
the administrative record in evidence
automatically conflicted with the
provision in 5 U.S.C. § 556 for the
exclusion of "irrelevant, immaterial, or
unduly repetitious evidence". As the
comment described above explains,
receiving the administrative record in
evidence serves to document for the
Presiding Officer and the parties the
prior proceedings out of which the
evidentiary hearing will arise and on
which it must in part be based. A
substantial useful purpose is therefore
served by this procedure. This purpose
could not be served as well, and many
opportunities for useless arguments
would be opened up, if the section were
amended to provide that the
administrative record could be edited in
some fashion before or after its
introduction.
§ 124.84 Summary determinations.
A number of comments objected to
the provision in § 124.84 that allowed
motions for summary determination to
be made "with or without" supporting
affidavits. They feared that by explicitly
mentioning the possibility of a motion
without supporting affidavits, the
regulations might result in shifting the
burden of proof to the party against
whom the motion is made. No such
result is intended by this provision.
Motions for summary determination
must be affirmatively supported. The
form of the proposal was only meant to
recognize the possibility that material.
already in the record might amount to
that affirmative support.
§ 124.85 Hearing procedure.
[1] Burden of proof. Comments came
in on all sides of the question "Who
should bear the burden of proof?" The
comments discussed, not so much the
burden of going forward, which most
cornmenters agreed could properly be
shifted by regulation, as the ultimate
burden of persuasion. Several changes
have been made in response to
comments, but the basic approach has
not been changed. Because this is a
complex issue, it is discussed in some
detail.
Most comments agreed that the Act
explicitly assigns a burden of persuasion
for most variance decisions. The Act
explicitly provides that variances under
sections 301(c), 301(h), 301(g), and 316(a)
may only be granted if the applicant
carries an affirmative burden of proof.
Variances under section 301(c) are
conditioned on a "showing by the owner
or operator of such point source
satisfactory to the Administrator";
sections 301(g) and 316(a) uses almost
the same language; section 301(h)
variances may be granted "if the
applicant demonstrates to the
satisfaction of the Administrator [that
the conditions are met"].
The question then becomes what the
substantive burden should be for basic
permit terms not involving a variance.
That question, in EPA's opinion, is of
more limited importance than might first
appear.
When EPA proposes permit terms, it
has a burden of going forward, or, stated
differently, an obligation to provide
information and material so that other
interested persons can understand what
the proposed terms are based on and the
reasoning behind them. Other persons
have a similar burden with respect to
terms they propose. This obligation has
been recognized by EPA (See Decision
of the General Counsel No. 63, pp. 23-
31), and is part of the law of informal
rulemaking as well. Portland Cement
Ass'n. v. Ruckelshaus, 486 F.2d 375 (D.C.
Cir. 1973). The provisions of these
regulations on statement of basis and
fact sheet, administrative record, and
comments are largely aimed at
implementing those requirements.
The question of the substantive
burden of proof assumes importance
when the information provided by the
various interested persons under these
obligations is fairly evenly balanced in
the conclusions it points to. A
substantive burden of proof rule can be
used to help decide which conclusions
should be accepted. It is in this context
that the question of whether EPA or the
person challenging a permit term bears
the burden of proof assumes importance.
In one sense, every party could be said
to have the "burden of persuasion" as to
the permit terms that it was advocating,
but that approach would be of little use
as a guide to decision. Accordingly, the
regulations (as proposed and
promulgated) assign the substantive
burden of proof to the permit applicant
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in all cases. The Administrative
Procedure Act (APA), 5 U.S.C. section
556fd) provides that "except as
otherwise provided by statute, the
proponent of a rule or order has the
burden of proof." Since dischargers are
under a statutory obligation to apply for
and receive an NPDES permit, the
United States Court of Appeals for the
Seventh Circuit has recently held the
discharger is the proponent "as the
applicant for a permit, without which it
would be forbidden by law to discharge
pollutants," U.S. Steel v. EPA, 536 F.2d
822, 834 (7th Cir. 1977).
Such a conclusion follows from a
literal reading of the statute. It also
makes sense from the standpoint of the
public policy. Though we acknowledge
that EPA may have some disposition to
favor its own conclusions on the terms
of a given permit, in general it can be
expected to be more concerned with
carrying out the terms of the statute in
the context of given permits than a
discharger. Accordingly, it is proper to
fix the substantive burden of proof on
the party which can be expected to have
relatively less interest in achievement of
the statutory purpose.
Comments were received suggesting
that the Agency's position regarding
burden of proof is inconsistent with
Decision of the General Counsel Nos. 63
and 72. The difficulty is caused by the
use of inconsistent terminology in these
opinions. In Decision of the General
Counsel No. 63, the term "ultimate
burden of persuasion" was used with
respect to the EPA's obligation under
section 316(b) to present evidence
regarding best available technology for
minimizing the environmental impact of
intake structures. In context it is
apparent that EPA has the burden of
coming forward with evidence regarding
intake structures. This cannot shift the
ultimate risk of non-persuasion, which
lies always with the discharger. To the
exent that Decision of the General
Counsel No. 63 can be construed to shift
this risk of non-persuasion to EPA, it is
incorrect. Decision of the General
Counsel-No. 72 correctly distinguishes
between the burden of coming forward
with evidence and the risk of non-
persuasion, and labels the burden of
coming forward the "burden of proof."
(2) Cross-examination, (a) Several
commenters objected to the restrictions
on cross-examination of EPA employees
set forth in proposed § 124.83(b)(16).
They argued that cross-examination
should be allowed on facts which
formed the basis of legal or policy
matters, or on those matters themselves.
Facts which meet the other tests for
cross-examination and which are
relevant to legal or policy judgments are
of course potentially eligible for cross-
examination. However, the proposed
language has been retained to underline
that cross-examination on legal or
policy matters per se should not be
allowed. These matters of course
deserve to be clarified as much as any
factual issues, but cross-examination is
not the right way to do it. Written
presentations and oral argument can
perform the same task far more
efficiently and should be relied on
instead.
One comment also objected to the
provision that required all evidence in
an NPDES proceeding to be submitted in
written form unless an affirmative
showing could be made that oral
presentation was necessary. It argued
that the Food and Drug Administration
(FDA) regulations cited in support of
this position did not really support it.
However, the FDA regulations at issue
are similar to § 124.85(c) and EPA
interprets the content of the two
provisions as being the same (see 21
CFR § 2.154(b)). FDA regulations require
written evidence on "general" matters
and leaves the form of presentation to
the choice of the parties where
"particular" matters are concerned.
However, "general" matters are said to
involve (among other things) "scientific,
medical or technical information not
relating to a unique event", 41 FR 51706,
51716 (Nov. 23,1976), and this is a
description that could apply to many
issues in an NPDES proceeding.
(c) Proposed § 124.83(c)(5)(iii) is a
limited provision for "discovery" in
NPDES evidentiary hearings. Comments
were received arguing both for the
expansion and for the deletion of this
section. In the final version, this section
has been kept and also applies in panel
hearings (Subpart I). Although
information may be attainable under the
Freedom of Information Act or section
308 of the Act, discovery may be a more
useful and direct approach to elicit
information for a hearing.
(d) Several comments challenged as
illegal the provision in § 124.83(c}(6]
authorizing the Presiding Officer to
group parties with similar interests. We
have not changed this section since we
agree with Judge Friendly and the Food
and Drug Administration that such a
provision is fully authorized by existing
la"w, see National Nutritional Foods
Assoc, v. Food and Drug Administration,
504 F.2d 761, 795 (2d Cir. 1974). See also
41 FR 51706, 51718.
\124.B6(c) Motions.
The general rule is set out in § 122.15
that the applicable regulations and "
requirements for NPDES permit issuance
are those in effect at the time a permit is
issued by a State or by EPA under
§ 124.61.
This provision is consistent with the
. decision of the Administrator//? the -
Matter of U.S. Pipe and Foundry Co.,
NPDES Appeal No. 75-4 reprinted in -
EPA, Decisions of the Administrator
and Decisions of the General Counsel
v.I at 110 (1975). The Administrator's
views on this issue were adopted by the
Fifth Circuit in Alabama ex rel. Baxley
v. EPA, 557 F.2d 1101 (5th Cir. 1977).
Proposed § 124.86(c) authorized
Presiding Officers to apply in permit
hearings regulations issued after the
permit is issued under § 124.61. For an
explanation of the proposed regulation,
see 43 FR 37080 (Aug. 21.1978).
Several commenters contended that
§ 124.86(c) violates due process and is
inconsistent with the Alabama v. EPA .
decision. EPA does not believe that any
due process issue can be involved here.
All parties will have a full opportunity
to challenge in the adjudicatory hearing
the application of any regulations which
are applied to a discharger under
§ 124.86(c). Moreover, the provision may
not be used when any party would be
"unduly prejudiced thereby."
It is the general rule that laws which
become effective during the pendency of
judicial review proceedings control
those proceedings, Bradley v. Richmond
School Board, 416 U.S. 696 (1974);
Republic Steel Corp. v. Costle, 581 F.2d
1228 (6th Cir. 1978). This rule also holds
true for the application of Federal
regulations in administrative
proceedings. Thorpe v. Housing
Authority of Durham, 393 U.S. 268
(1969). The Supreme Court has only
recognized exceptions to this general
rule to prevent "manifest injustice."
Thorpe v. Housing Authority, 'supra at
282; Greene v. United States, 376 U.S.
149 (1964). The Administrator departed
from this rule in his decision in U.S.
Pipe, supra. There he set forth a fixed
rule that permits would always be
governed by rules in effect at the time of
initial permit issuance, and would be
unaffected by changes in applicable
regulations during permit appeals. The
Administrator concluded that:
To allow permit limitations and conditions
to change according to a "floating" standard
or guideline during the pendency of a permit
review proceeding would be highly disruptive
and counter-productive. [Id. at 117]
The Fifth Circuit approved the
Administrator's position in Alabama ex
rel. Baxley v. EPA, supra. However,
neither the Administrator nor the Fifth
Circuit discussed Bradley or Thorpe,
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and EPA can only speculate as to what
result would have been reached had
those decisions been brought to EPA's
and the court's attention.
EPA recognizes the potential for
disruption which a continuously shifting
field of applicable regulations could
bring to permit proceedings. However,
the Agency now believes that the per se
rule established by the Administrator in
the U.S. Pipe decision was too inflexible
and in certain respects unlawful. EPA is
clearly obligated under Bradley and
Thorpe to apply new statutory law to
administrative proceedings which are
not final, unless a contrary legislative
intent can be discerned. However,
courts will give deference to EPA's own
regulations controlling the application of
EPA rules to pending proceedings. See
Greene v. United States, supra at 160-
162. Moreover, the courts will not apply
the Thorpe rule blindly where to do so
would result in unnecessary delay.
Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 418-19 (1971).
Accordingly, EPA has preserved the
general rule enunciated in the U.S. Pipe
decision, but has modified it to require
the Presiding Officer to apply
intervening statutory requirements, and
to allow him to apply new regulations "
where to do so would not unduly
prejudice any party. The Agency
expects that motions to apply new
regulations will be liberally granted
where to do so will shorten the hearing
or resolve issues (such as determination
of BCT or BAT on a case-by-case basis]
that otherwise would consume
considerable staff and hearing time. See
Public Service Co. of Indiana v. FERC,
575 F.2d 1204 1220-21 (7th Cir. 1978).
§ 124.90 Interlocutory appeal.
The present practice of deciding legal
issues separately through referral to the
Office of General Counsel has been
eliminated. Instead, these issues will be
subject to normal interlocutory appeal
procedures. The regulations also provide
that the General Counsel's Office will
play a major role in deciding any legal
issues raised in such appeals. This
approach was suggested in the
comments of the Utility Water Act
Group. Similar changes have been made
to § 124.101.
This approach presupposes that
members of the General Counsel's
Office who take part in deciding
interlocutory appeals under this
provision will not have performed
"investigative or prosecutorial
functions" in the hearing at issue, and
will not be organizationally subordinate
to those who have. 5 U.S.C. Section
554(d). In the normal course lawyers in
the General Counsel's office do not
perform such functions. In NPDES cases
where they do, the lawyer in question
and all that lawyer's subordinates will
be barred from advising the
Administrator.
§ 124.101 Appeals to the Administrator.
(1) The proposed regulations would
have provided two administrative
appeals from ALJ decisions—once to the
Regional Administrator and then after
that to the Administrator in Washington.
In the final regulations the opportunity
to appeal to the Regional Administrator
has been eliminated and only the appeal
to the Administrator has been retained.
This will make the process far less
cumbersome. Regional Administrators
will still be able to express their views
by advising on the terms of draft and
final permits and either by participating
in the evidentiary hearing or by
declaring themselves part of the
decisional body (and thus subject to the
exparte rules of § 124.78) and advising
the Administrator.
(2) Comments were received objecting
to the provisions in this section for the
Administrator to consider new issues on
appeal or to base a decision on material
erroneously excluded. These provisions
were inserted to provide a measure of
flexibility in the administrative
decisionmaking process. Of course they
should not be invoked where the
matters to be considered are of a type
that properly should have been subject
to an evidentiary hearing.
'(3) A number of commenters objected
to the showing of substantial issues in
justification of an appeal to the
Administrator has a very broad power
§ 124.101. We agree with those
commenters who stated that the
Administrator has a very board power
of review of decisions in NPDES permit
cases. However, EPA's intent in setting
up this program is that: (1) this power of
review should be only sparingly
exercised; (2) most permits be finally
adjudicated at the Regional level; and
(3) review by the Administrator be
confined to cases which have
precedential importance for the program
as a whole. The threshold showing as
proposed was intended to further that
purpose; and thus has been retained.
(4) Another commenter asked about
the availability of interlocutory judicial
review of decisions such as new source
determinations and section 316(a)
determinations.
EPA's position is that judicial review
is only available for final permits for
which appeal to the Administrator has
been sought under §124.101. Except in
the special cases explicitly described in
§124.56 all other decisions in connection
with a permit are subject to challenge
and revision in future administrative
proceedings. They represent cases in
which the administrative process is
therefore not complete, and are not ripe
for review because they fall under the
requiremenHo exhaust administrative
remedies.
§ § 124. Ill through 124.127 Non-
adversary procedures for initial
licensing.
The APA allows decisions on the
initial grant of a license'or variance to
be made by procedures that are much
less adversarial than strict court room
procedures, even when a formal hearing
is required. The regulations use this
provision of the APA to move away
from traditional format hearings in
which EPA and other parties present
separate cases before a single hearing
officer. Instead, under Subpart 1, a panel
. of EPA employees with expert
knowledge of, or responsibility for, the
subjects involved will be present at the
hearing and will question the parties,
subject to over-all control of the
proceeding by the Presiding Officer, an
Administrative Law Judge. We expect
that in some cases no Agency trial staff
will be designated, although the
regulations allow one to be named if
necessary. Instead, the Agency will
prepare a draft response to the permit
application, and the information
contained in the application and the
draft response will be the focus of
attention at the hearing. The hearing
itself will be divided into a "legislative"
phase—at which the parties can present
views and arguments to the panel and
engage in a colloquy, and an
"adjudicative" phase—at which formal
cross-examination can be ordered if
certain threshold conditions are met.
After the hearing, the panel will prepare
a recommended decision which may be
appealed to the Administrator. Though
the Administrator will make an
independent review of the decision upon
deciding to review it, the Administrator
would be free to consult with panel
members. EPA believes that this
procedure complies with the literal
language of the "initial licensing"
provisions of the APA and fits the
purpose of those provisions more closely
than existing procedures.
Under the APA, in cases of formal
rulemaking, ratemaking or initial
licensing, agencies have more latitude
than in other formal cases to require the
submission of evidence in written form.
5 U.S.C. Section 556(d). An initial
decision by the "independent" presiding
Administrative Law Judge (ALJ) is not
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32888 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
required; instead any "responsible
employee" of the Agency may
recommend a decision. 5 U.S.C. Section
557(b)(l).
As the preamble to the proposal"
explained, these exemptions were
provided for initial licensing because the
decisions involved were complex and
policy-dominated and thus were thought
to be "like rulemaking." Since these
decisions did not involve accusing
anyone of wrongdoing, there was no
reasons for "separation of functions"
within the Agency or for an initial
decision by a statutprily independent
individual. Rather, the complexity of the
problems required that the Agency be
able to draw on its staff experts freely
without being hampered by such
artificial barriers. APA: Legislative
History; S. Doc. 248, 79th Cong., 2d.
Sess. 204, 229, 262, 361 (1946) (henceforth
APA Leg. Hist.).
The use of a panel and the omission or
deemphasis of an EPA trial staff in
proceedings under these regulations
would make their structure conform
more closely to the non-accusatory
nature of the decision in question. The
form of proceeding would correspond to
its function—a group of EPA employees
exploring {he issues to determine what
decision to make or recommend—rather
than to a courtroom trial.
The comments raised a number of
closely intertwined objections to the
legal justification for this approach and
to the implementation of it. The most
important general objections are
discussed first, followed by a discussion
of comments relating to individual
sections.
(1) General comments.
(a) First objection—issuing NPDES
permits to existing sources is not "initial
licensing".
The commenters who raised this issue
made little effort to support it, and it
suffers from the initial weaknesses of
being contrary to the plain language of
the statute, consistent EPA practice and
the relevant judicial opinions.
The APA defines "license" to include:
The whole or a part of an agency permit,
certificate, registration, charter, or other form
of permission, 5 U.S.C. section 551(8),
and "licensing" as including:
Agency process respecting the grant,
renewal, denial, revocation, suspension,
annulment, withdrawal, limitation,
amendment, modification, or conditioning of
a license, 5 U.S.C. section 551(9).
Though "initial" is not defined, its
natural meaning (according to Webster's
Third World Dictionary, unabridged
1947) is "of or relating to the beginning,"
or, in other words to the first grant of
the license in question. Neither this
definition nor the statutory language
offers any basis for distinguishing
between first grants of licenses to
existing sources and those which are
physically new.
In the more than six years since the
NPDES system was authorized by the
Federal Water Pollution Control Act
Amendments of 1972, EPA has
consistently treated the first grant of an
NPDES permit to an existing source as
"initial licensing" and this reading has
been upheld by both courts which have
considered the point. United States Steel
Corp. v. Train, 556 F.2d 822, 834-35 (6th
Cir. 1977); Marathon Oil Corp. v.
Environmental Protection Agency, 564
F.2d 1253,1265 (9th Cir. 1977).
Analogous provisions of the APA
confirm that the exemptions made
available for "initial licensing" may
properly be used even when an existing
source is being permitted. Whatever the
examples of "licensing" Congress had in
mind, Congress made the same
exemptions available for all cases of
ratemaking, and ratemaking of course in
the majority of cases would involve
existing companies.3
(b) "Separation of functions" should
be followed in initial licensing.
"Separation of functions" iri the strict
sense will be observed in proceedings
under this Subpart. Whenever an agency
trial staff is named to perform an
advocacy role in the hearing, separation
of functions requirements will apply to it
(§ 124.78).
The comments on this point argued by
analogy that persons involved in
preparing the draft permit should not sit
on the panel, and that members of the
panel should not advise the
Administrator'on appeal. The APA
contains no prohibition on either of
these practices. Nevertheless, we have
discussed them as though the literal bar
on separation of functions in the narrow
case was concerned.
The legislative history of the APA
contains a number of statements
cautioning agencies against overbroad
application of the exemptions which the
text of the statute provides from
"separation of functions" requirements
and from the requirement to prepare a
proposed decision before making a final
one. Several commenters argued that
these statements demonstrated that
NPDES permitting is not the kind of
'Under 5 U.S.C. sections 551 (4) and (5).
"rulemaking" includes "ratemaking". 5 U.S.C.
section 554. which contains the APA's separation of
functions requirements, states in subsection (a) that
it only applies to "adjudication", while sections
556(d) and 557(b) contain parallel exemptions from
other APA requirements for rulemaking and initial
licensing.
"initial licensing" Congress had in mind,
and that accordingly, these exemptions
should not be applied to it.
We disagree. As the preamble to the
proposal stated, these exemptions were
provided for cases which involved a
complex array of factual and policy
issues requiring a division of labor
among the staff, and which were npt
"accusatory". NPDES permitting easily
meets both tests.
Particularly where a permit to a major
source is concerned, questions can arise
concerning the nature of given industrial
processes, their similarity to or
difference from other industrial
processes, and how this should affect
control requirements or classification
under effluent limitations guidelines. For
section 301(c) determinations, EPA must
consider the economic impact of the
proposed discharge requirement, and
alternative discharge requirements, on
the plant itself and the company.
Section 316(a) thermal variances can
require consideration of the dispersal
and persistence of the discharge in the
receiving waters, and its effect there on
numbers of different species and the
ecosystem generally. In many cases,
certainty on these points will not be
attainable; yet the final judgment will
depend on highly discretionary
judgments on a variety of legal and
factual issues.
In such cases, the final decision will
depend largely on "policy" choices
about how to choose among
uncertainties and weigh various facts
against each other, just as it does, for
example, when economic information of
various sorts must be analyzed for rate-
setting purposes, or information on
traffic growth, company and community
economic health, and other factors must
be assessed for purposes of CAB or ICC
route awards. These latter decisions are
clearly among those which Congress
meant to exempt from "separation of
functions" requirements, and NPDES
permitting in our view should be
similarly classified.
• Similarly, the initial grant of an
NPDES permit is "non-accusatory" like
these other decisions because it is the
first time the Agency will have
confronted the task of applying the
standards of the statute to the particular
discharge at issue. The Agency will
have not made a prior decision to which
it might feel compelled to adhere, as
could be the case in renewal licensing,
and whatever decision is made will not
amount to a finding of legal wrong-
doing.
The legislative history of the APA, we
believe, recognizes these points. Both
the House and Senate Reports say at
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32889
one point that "instances" of the
exempted categories may arise which
"tend to be accusatory in form and
involve sharply controverted factual
issues'^ and where the exemption
contained in 5 U.S.C. section 554(d) from
separation of functions should not be
invoked (emphasis added). As this
preamble explains] the whole purpose of
EPA's new provisions is to avoid being
"accusatory in form" while for the
reasons just given, EPA does not believe
they are accusatory in substance. The
logic of these passages accordingly does
not apply.
Both the House and the Senate reports
also say that
The alternative intermediate procedure [in
5 U.S.C section 557[b) {1} and (2)] which an
agency may adopt in rulemaking or
determining applications for initial licenses is
broadly drawn. But even in those cases, if
issues of fact are sharply controverted or the
case or class of cases tends to become
accusatory in nature, sound practice would
require the agency to adopt the intermediate
recommended decision procedure, APA leg.
Hist. p. 273, accord, p. 210 (emphasis added).
This language only states that
agencies should not omit an
intermediate decision entirely under
section 557(b)(2) in the described cases.
There is no indication that an
intermediate decision by an ALJ would
be required; indeed, the implication is to
the contrary. The text of 5 U.S.C section
557 provides that as a general matter
ALJs in adjudicatory proceedings must
render "initial" decisions, but that in
rulemaking and initial licensing any
"responsible employee" may instead
"recommend" a decision. Yet the quoted
passages refer to a "recommended"
decision (by a "responsible employee"),
not an "initial" decision (by an ALJ).
Under this reading, the quoted
passage does not pertain to the
procedures at issue here, which provide
for a recommended decision by the
panel in every case.
In addition to these reasons based on
the letter of the APA's language and
legislative history, we believe EPA has
made a legitimate effort to respond to
the spirit of the statute. First, the
procedures are not mandatory for all
cases of initial licensing, and so the
Agency will retain discretion to follow
more conventional procedures in those
cases where they are most appropriate.
In general, EPA believes that Regions
should consider using these procedures
in'complicated cases where the record
will be long and technical. These are the
cases that will best justify the work of
assembling and using a panel, and that
will profit most from the increased
reliance on procedures other than cross-
examination. Cases with few issues or
issues that are easily focused should be
handled through the more customary
procedures. However, EPA also believes
that Regions must have discretion to
make this choice in individual cases,
and that the only proper question for
judicial review should be whether the
procedure actually selected resulted in a
legally satisfactory hearing, not whether
some other procedure might have been
better.
Second, the procedures themselves
have been structured to avoid as much
as possible creation of an "adversary"
or "accusatory" mentality through
overreliance on courtroom devices.
Finally, in response to comments, the
regulations have been rewritten to
ensure that there will be independent
review of a permit during Agency
decisionmaking, but in a way that
avoids the costs of formal separation of
functions.
The regulations do this by stating that
any hearing panel on a permit must
include at least two persons who had no
connection with preparing the draft
permit, and that when the Administrator
reviews a permit, any persons assisting
him or her directly in preparing the
opinion must be "without substantial
prior connection with the matter." This
will ensure that at successive levels of
review new people will take a fresh look
at the permit, and that the same'small
group will not be in charge of
decisionmaking from start to finish.
However, no restriction has been
placed on who these new people may
talk to. To do that would be in effect to
re-adopt separation of functions with all
its inefficiencies. Instead, the effort has
been to build a system of "checks and
balances" within the internal structure
of the Agency that can serve the same
purpose in a less costly manner. See n
K. Davis, Administrative Law Treatise
11.10 at 87 (1958).
For these reasons, we believe the
elimination of formal "separation of
functions" from the new initial licensing
procedures is well within the discretion
recently recognized by the Supreme
Court. "Absent constitutional
constraints or extremely compelling
circumstances, the administrative
agencies should be free to fashion their
own rules of inquiry and to pursue
methods of inquiry capable of permitting
them to discharge their multitudinous
duties", Vermont Yankee Nuclear Power -
Corp. v. NRDC, 98 S.Ct. 1197.1211 (1978)
citing and endorsing language from two
prior opinions.
(c) Third objection—variances are not
initial licenses. Many comments argued
that the proposed procedures-went too
far in applying the APA "initial
licensing" provisions to "the first
decision on any variance applied for by
a discharger." We believe our position is
supported both by the language of the
statute and by its purposes.
Under the APA, " 'license' includes
the whole or part of any agency permit
. . . [or] statutory exemption," and
" 'licensing* includes agency process
respecting the . . . amendment,
modification, or conditioning of a
license." (emphasis added) The
language of the statute, then, furnishes
no reason why a variance cannot be
regarded as a "license" in itself, either
as "part" of the existing permit or as a
"statutory exemption" from the
requirements. Granting a variance
similarly fits under the definition of
"licensing" both because the variance
can be viewed as a license in itself and
because in any event the proceeding
results in the actual or potential
amendment or modification of a permit.
This line of construction could be
pressed so far that it gave results
contrary to the main purpose of the
statute. However, where the initial grant
of a variance is concerned, the results of
this approach are in harmony with those
purposes.
The first decision on a statutory or
administrative variance granted to a
source will be the first occasion on
which EPA will be applying the policy of
that particular provision of the statute or
authorizing regulations to the given
discharge. Very often the factual and
policy considerations relevant to a
decision on that variance will be just as
wide-ranging, and just as incapable of
precise resolution, as the considerations
bearing on the initial grant of the basic
permit. For example, variances under
sections 301(g), 301(h) and 316(a) of the
Act depend on predicting the impact of
the uncontrolled discharge on the entire
relevant ecosystem, while variances
under section 301(c) depend on an
assessment and evaluation of the cost of
technology for a given plant and on-
drawing the conclusions that installing
this technology would be "beyond the
economic capability" of the source and
that alternate requirements will result in
"reasonable further progress" toward
full control.
Such decisions therefore, will often fit
the tests put forth above for determining
when a decision is "initial licensing."
Indeed, in Seacoast Anti-Pollution
League v. Costle, 572 F.2d. 872, 875 n.3,
879 (1st Cir. 1978), (henceforth
Seabrook} the court held in effect that it
made little difference whether the
Seabrook proceedings were
characterized as the initial grant of a
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permit under section 402 of the Act or
the initial grant of a variance under
section 316(a)—the procedures would be
the same and would be governed by the
"initial licensing" provisions of the APA.
The one 21 year old case cited against
this conclusion, Chotin Towing Corp. v.
Federal Power Commission, 250 F.2d.
394 (D.C. Cir. 1957} is not on point That
case held that a proceeding to abandon
a pipeline was not "initial licensing."
The abandonment decision would
presumably be made under the same
statutory provisions the license was
granted under, and would therefore not
represent the first time the agency took
a position on those provisions in the
context of the particular pipeline. By
contrast, variances under the Clean
Water Act result from the application of
statutory provisions on which the
Agency will not previously have taken a
position, and which therefore fit the
purpose of the "initial licensing"
provisions the way the abandonment
proceeding at issue in Chotin Towing
did not
Experience, however, has shown that
hearings for variance are seldom
necessary. For instance, in all the
fundamentally different factor variances
decided to date, there has not been a
question of fact at issue but if a
particular situation applied to a
quideline. In such cases, where facts are
not at issue, the decision on the
variances may be handled without a
hearing but on the papers filed by
interested parties.
(d) Fourth objection—cross
examination would be unduly limited.
Many comments asserted that the test
for being granted cross-examination set
forth in these procedures was too strict.
The statute, however, states only that
cross-examination must be allowed to
the extent required for a "full and true
disclosure of the [material] facts." A
long line of commenters have criticized
the tendency of formal administrative
hearings to allow long and unproductive
cross-examination. The procedures set
forth in these regulations do no more
than set forth in a manner essentially
endorsed by one Court of Appeals, a
method by which the standards of the
statute may be particularized. Seabrook
at 880. How rigorously they are applied
will depend on the factual
circumstances of each particular case.
Commenters also asserted generally
that the restrictions on cross-
examination in these procedures
showed that EPA was prepared to
ignore important factual questions in
initial licensing.
On the contrary, EPA believes that
resolving factual questions may often be
important in initial licensing, though
there may also be many cases where
their resolution is not governing or
where they cannot be resolved.
However, there are many devices other
than cross-examination for such
questions. Written comments and panel
hearings are two of them. These
regulations have been structured to
encourage the use of such alternative
ways of resolving such important factual
questions before the more cumbersome
tools of cross-examination are called on.
On a more specific point several
commenters asserted that in requiring
testimony to be submitted in written
form in initial licensing, the regulations
violated the holding in Seabrook.
However, on March 24,1978,
Administrator Costle issued a Response
to the Remand Order in this opinion. In
the document that Administrator said:
The Court of Appeals disapproved the
manner in which I requested written
information * * * after the initial hearing had
been held and when the case was on appeal
to me.
Under the Administrative Procedure Act
the submission of evidence in written form
may be required hi cases, such as this one,
concerning the initial grant of a license or
permit The court acknowledged that but held
that this result had to be qualified by the
special language of the Federal Water
Pollution Control Act, which requires an
"opportunity for public hearing" in permit
cases.
As 1 read the court's opinion, their holding
on this point was motivated by a concern that
all evidence received at an adjudicatory
hearing be subject to a full opportunity for
public comment and potential cross-
examination. * * * I do not believe the court
meant totally to exclude the use of written
testimony in initial licensing cases such as
this.
The examples of abuse of the "written
evidence" provision the court gave in its
opinion all relate to evidence received after
the hearing. Here I can appreciate the
conclusion that evidence so received may, as
a practical matter, be less exposed to public
comment than it should be. even if a formal
opportunity for cross-examination is
provided.
No such danger would arise if the evidence
is provided before the hearing and can be the
subject of comment argument, and potential
cross-examination at it. In addition, the
hearing would provide a chance to correct
any unanticipated deficiencies that might
arise. Cf. Attorney General's Manual on the
Administrative Procedure Act P. 78. (1947).
By contrast, there is at least a possibility
that an absolute right to present direct
testimony orally could be abused for
purposes of delay in complicated or
controversial cases.
The trend of the law has been to allow
more latitude, not less, to agencies to require
the submission of complicated technical
material in written form to increase efficiency
and avoid delay, as long as an adequate
opportunity for public challenge and dispute
was preserved. See 40 Fed. Reg. 40682,40703
[Sept. 3,1975); 41 Fed. Reg. 5171&-17 (Nov. 23,
1976).
Beyond these considerations. I believe a
careful reading of the conceptual framework
of the court's opinion also supports the
position! have adopted.
The question of the extent to which written
evidence is proper under the APA only arises ~
when an initial licensing decision must be
made by formal adjudicatory procedures.
Those procedures are only applicable where
the statute (or in some cases, due process)
requires them. The court held mat where
adjudicatory decisions are concerned, an
intent to hold formal hearings should
generally be inferred whenever the statute
requires a "hearing" in connection with that
decision.
However, to hold that written evidence
may not be required in initial licensing cases
if the governing statute requires a "hearing"
would be inconsistent with that basic
analysis. The "written evidence" provision
i only applies when the statute requires a
formal hearing. It was deliberately inserted to
govern such hearings. ^» say that it does not
apply whenever the statute at issue requires
a "hearing" would be in effect to say that it
never or almost never applied, since a
statutory "hearing" requirement is necessary
to make the APA applicable in the first place.
It would be in effect to say that the same
statutory reference that makes formal hearing
procedures applicable generally also makes
the "written evidence" provision for initial
licensing cases inapplicable, even though
Congress expressly inserted that provision as
a general rule for formal hearing procedures.
Though the Federal Water Pollution
Control Act does not simply require an
opportunity for a hearing, but an opportunity
for a "public" hearing, I do not believe that
the presence or absence of this one word
should change the outcome of the analysis.
There is no indication Congress intended
such a sweeping result to follow, and the
term has never been understood to carry this
meaning. Indeed, virtually all hearings are
"public" by definition and to the extent
"public" has any explicit connotation, I take
it to be one of less, rather than more,
formality—a hearing to receive public views
and complaints, rather than to generate a
record for decision.
Instead, I take the court's opinion to mean
that where the statute requires a "public
hearing" any written evidence received must
come in before that hearing begins, or at it so
that it can be the subject of potential cross-
examination, or other types of challenge, in a
public forum.
This interpretation was not
challenged in the remand proceedings
and has now been decided in EPA's
favor by the First Circuit, It is adopted
here.
A related change has been made in
consequence. Comments came in asking
about the relationship between "reply
comments" under proposed § 124.119
and post-hearing briefs under § 124.123.
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32891
Since under the interpretation here
adopted, reply comments could not
contain testimonial material in any
event, the "reply comment" provision
and the section on post-hearing briefs
perform the same function and the
"reply comment" provision has been
deleted. ' . j , -
Some commenters also argued that
the use of a panel violates the "on the
record" decision requirement of the
APA. However, as the court in the
Seabrook case explicitly recognized,
consultation among experts is legal and
desirable in decisionmaking in technical
areas. Seabrook at 872, 880-81. The
statutory background discussed above
explicitly contemplates that the decision
in initial licensing cases may be the
work of a group. See especially APA
Leg. Hist, at 229.
(e) Fifth objection—there is no need
for two procedures. Several persons •
urged that having two types of
procedures for making decisions on
"initial licensing" would be cumbersome
and create confusion beyond any
purpose it might serve.
We disagree. Procedures analogous to
those set forth in Subparrt have been
used in other contexts at EPA and have
worked well. They have proved easy to
follow and did not require undue
explanation. The costs of delay and lack
of coordination in formal adjudication
can be so great that a new approach
would be justified if it saved time and
- effort in only a few cases. We think the
savings from this approach will be much
more considerable than that.
The Natural Resources Defense
Council suggested that these procedures
might be adapted to all NPDES permit
decisions, which would make the
creation of separate initial licensing^
procedures unnecessary. Though this
would be desirable as a matter of policy,
in EPA's judgment the legal differences
between initial and non-initial licensing
under the APA are too great to make
such an approach feasible. However,
§ 124.111{a)(3) has been amended to "
allow applicants who do not come
within the definition of "initial
licensing" to voluntarily be subject to
these procedures instead of Subpart H.
A request under § 124.111(a)(3) made
during the public comment period, if
granted, can have the effect of this
Subpart superseding Subparts E and G.
(2) The Extent of Disagreement.
Despite-the number of comments
received on these proposals, EPA
believes the disagreement is more about
means than about ends. This emerges
dearly from the following comments of
the Utility Water Act Group, which
submitted the longest and most detailed
analysis of these procedures. As an
alternative to the proposed procedures,
they suggested these steps:
Hearing panels, with independent decision
makers [sic] as suggested below, could be
used either during the informal public -
hearings on draft permits or, in proper cases
of initial licensing, during the adjudicatory
hearing itself. They might under the
supervision of the presiding officer, be used
to write some or all of the technical portions
of the decisions involved. Separate technical
advice (perhaps drawn from the same pool of
technical persons involved in the hearing
panels, but not including those persons
involved in the particular case in question)
could be provided to the Administrator on
appeal. Thus, the advantages of technical
input to the decisionmakers could be
combined with independence of
decisionmakers, both initially and on review.
This would fill the Agency's needs while also
providing fair and impartial decision [sic]
making.
In the evidentiary hearing process,
presiding officers can be authorized to
impose very abbreviated cross-examination
rights where proper initial licensing cases are
•involved, subject to the same sorts of tests
articulated now in the separate [initial
licensing] procedures. The Agency staff
would function as party to these proceedings.
But the rules could specifically require that
they eschew an adversary position and act
affirmatively to ensure that the record is
adequate and that a reasoned and objective
Agency decision results from the process.
Participating staff members must be prepared
to confess error, after hearing the evidence,
on some positions which the staff originally
took in the draft permit. [Utility Water Act
Group Comments pp. 252-53.J
These are the same basic ends EPA
seeks through the special "initial
licensing" procedures promulgated
today. The only differences are that the
Agency believes that a strict, courtroom
type separation of functions is too costly
in time, resources, and the quality of the
resulting decision to be compatible with
that goal, and that a "non-adversary"
agency staff can only be achieved by
removing it from participation in the
inherently adversary setting of a trial-
type hearing.4
Comments on Specific Sections
\124.111 Applicability.
The major questions under this •
section, regarding the treatment of
existing sources, variances and the need
for an alternative procedure, have been
discussed above. A new provision has
been added to allow parties to elect to
follow this procedure hi cases that do
not involve initial licensing.
One commenter raised the question
whether a permit to a source that has
'For further (fiscustioa of these and other points
relating to these "initial licessing" procedures see
Pedersen The Decling of Separation of Functions in
Regulatory Agencies". 64 Va. L. Rev. 991 (1978).
changed owners, would be considered an
"initial license" potentially subject to
these procedures. The answer is "No"—
it is the first permit to the physical
facility, not to the owning entity—that is
significant under the purposes of the
"initial licensing" provisions discussed
above.
§ 124.112 Relation to other Subparts.
A number of commenters point out
that the procedures in this Subpart were
not articulated in as much detail as the
other evidentiary hearing provisions,
and asked that more provisions be
added.
This lesser degree of formality was to
some extent deliberate on EPA's part,
since these proceedings are meant to be
relatively less "judicialized" in form
than those under Subpart H. For that
reason, not all the suggestions on this
point have been accepted. However, a
substantial number have been, and
therefore §124.112 has been added to
specify the provisions from SubpaM E, F,
G and H that are incorporated in this
Subpart I by reference. ~
\124.116 Notice of hearing.
Under the proposal, the Regional
Administrator would have issued the
decision in all cases after the hearing. ,
This proposal left open the question of
the role of the Presiding Officer in
preparing that decision. To correct this
ambiguity the regulations have been
rewritten to provide that the Regional
Administrator must choose, at the time
the notice of hearing is issued, whether
the decision will be issued in his or her
name or in the name of the Presiding
Officer. If the Presiding Officer is
chosen, then the analysis and
conclusions of the initial decision will
be wholly the responsibility of the
Presiding Officer, though consultation
with the panel and consideration of their
views will be expected. If a Regional
Administrator decision is chosen, the
Presiding Officer will have no obligation
to take part in preparing it, although he
or she may take part.
§ 124.120 Panel hearing. •
(1) Commenters attacked the
provision in this section and §124.121
requiring the Presiding Officer to consult
with the panel before making rulings on
cross-examination. They argued this
might prejudice the independence of the
Presiding Officer.
The APA allows decisions in "initial
licensing" cases to be "institutional"
decisions that draw on the training and
experience of a number of different staff
members, rather than the work of the
Presiding Officer alone. These staff
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32892 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
members must work from the record in
preparing their decision. Under these
regulations those staff members will
also be members of the hearing panel or
its support staff. Because the panel
members will therefore have a stake in
the contents of the record from which
they will all have to work, it is
appropriate for the Presiding Officer to
consult them on key decisions that may
*- help to shape that record. The Presiding
Officer, of course, will retain the final
power to rule on these matters.
(2) Several commenters argued that
the entire panel be present at any cross-
examination under this section. This
comment has been accepted, so that all
panel members, to the extent feasible,
be present
Subpart]—Miscellaneous
§ 124.131 Public access to information.
A number of commenters suggested
that trade secret information either
should not be disclosed to other persons
in NPDES proceedings, or should only
be disclosed subject to specific
safeguards. The handling of trade secret
information has not generally been a
problem in NPDES proceedings, in part
because the statute restricts the types of
information that qualify.
However, to remove any ambiguity
EPA has added a reference to EPA's
general regulations on this point to this
section to make clear that they continue
to govern except to the extent that the
Clean Water Act mandates disclosure.
i 124.132 Delegation of authority; time
-limitations.
Quite a few commenters urged that
EPA should set additional deadlines for
its actions under this Part, or that failure
to meet the deadlines already
established should have more drastic
consequences. These comments have
not been accepted. The Agency's
workload, commitments, and future
resources are too unpredictable to make
it advisable for any more binding
deadlines to be set. One of the major
purposes of these revisions is to speed
the processing of permits and that result
should be evident whether or not more
deadlines are established.
§ 124.133 EPA Headquarters approval
of stipulations or consent agreement.
Some coinmenfers also question the
provision that all stipulations be
approved by the EPA Deputy Assistant
Administrator for Water Enforcement.
This provision has been retained
because cases which are settled upon
stipulation after having been set down
for hearing are apt to be the major
controversial cases for which a specific
provision for central review is
appropriate. However, it has been
rewritten and renumbered to make clear
that only stipulations which settle the
case or a major portion of it are subject
to this provision.
§ 124.135 Effective date.
While Parts 121,122,123,125, and 403
will Be effective 60 days after issuance,
this is a new section which states that
Part 124, with some exceptions, shall not
be effective until 120 days after
issuance. This extra tune is necessary to
allow EPA Regional Offices and NPDES
States to change internal operating
procedures as necessary.
V. Part 125—Criteria and Standards for
the National Pollutant Discharge
Elimination System
A. What Does This Part Do? Part 125
contains requirements or standards
which must be applied by EPA or
approved States in making specialized
types of permit determinations. One or
more of these determinations must often
be made in the course of permit issuance
or modification.
B. How Does This Part Relate To
Existing Regulations? Three of the
Subparts contained in this Part are
taken from existing, i.e., former, EPA
regulations. Subpart B (proposed
Subpart C) establishes the criteria for
issuance of permits to aquaculture
- projects. These criteria are substantially
the same as the criteria in former 40 CFR
115.10. The other requirements of former
40 CFR Part 115 are now contained in
various sections of Part 122 and 124.
These regulatory revisions were.made in
response to the 1977 amendments to
section 318 which stated that such
permits must now be issued pursuant to
section 402 of the Act. Since the
requirements of former Part 115 are now
contained in these regulations. Part 115
is deleted. Subpart H (proposed Subpart
I) establishes the criteria for determining
alternative effluent limitations under
section 316(a) of the Act. The criteria are
substantially the same as in former 40
CFR Part 122. Since the requirements of
former Part 122 are now contained in
these regulations, former Part 122 is
deleted. Subpart J {proposed Subpart JQ
establishes the criteria for extending
compliance dates under section 301 (i) of
the Act. This Subpart ] incorporates the
interim final section 301 (i) regulations
published on May 16,197a
Two of the Subparts contained hi Part
125 were proposed for the first time on
August 21,1978. Subpart A establishes
criteria and standards for imposing
technology-based treatment
requirements under section 301(b) of the
Act. Subpart D (proposed Subpart E)
establishes criteria and standards for
determining fundamentally different
factors under sections 301(b)(l)(A),
301(b](2)(A), 301(b}(2)(E) and 307(b) of
the Act.
One Subpart contained in this Part
was proposed for the first time on
September 1,1978. Subpart K (proposed
reserved Subpart L) establishes criteria
and standards for imposing best
management practices for ancillary
industrial activities under section 304(e)
of the Act.
C. How Does This Part Relate to the
August 21,1978 Proposed Regulations?
The following is a discussion of the
significant comments received and the
basis for revisions made to Part 125 of
the proposed regulations. Minor
editorial changes have been made in all
sections.
Proposed Reserved Subparts
Proposed reserved Subpart B—EPA
Objection to State-Issued Permits Under
Section 402(d}(2] of the Act. This
Subpart was reserved for the provisions
of former 40 CFR § 124.42. .EPA has
decided to move these requirements to
§ 123.23 so that all requirements relating
to State permit programs will appear in
that Part
Proposed Reserved Subpart L—Criteria
and Standards for Best Management
Practices Under Section 304(e) of the
Act,
This Subpart was reserved in the
August 21,1978 proposal. On September
1,1978, EPA proposed regulations
establishing criteria and standards for
best management practices under
section 304(e) of the Act. These
regulations are now incorporated in part
in the final regulations as Subpart K, A
more detailed discussion of this Subpart
is found in the preamble discussion of
Subpart K.
Other Proposed Reserved Subparts.
Other proposed reserved Subparts
remain reserved pending development
of criteria and standards. These
Subparts are relettered as follows:
Subpart C (proposed Subpart D)—Criteria
fcr Extending Compliance Dates for
Facilities Instating Innovative Technology
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32893
Under Section 301(k) of the Act
Subpart E (proposed Subpart F)—Criteria
for Granting Economic Variances from BAT
Under Section 301(c) of the Act
Subpart F (proposed Subpart G>—Criteria
for Granting Water Quality Related
Variances Under Section 301(g) of the Act
Subpart G (proposed Subpart H)—Criteria
for Modifying the Secondary Treatment
Requirements Under Section 301(h) of the
Act (criteria proposed as 40 CFR 233,
Subpart B on April 25,1978).
Subpart I (proposed Subpart J)—Criteria
Applicable to Cooling Water Intake
Structures Under Section 316(b) of the Act
Subpart L (proposed Subpart M)—Criteria
and Standards for Imposing Conditions for
the Disposal of Sewage Sludge Under
Section 405 of the Act
Subpart A—Technology-Based
Treatment Requirements
This Subpart establishes the criteria
and standards for imposing technology-
based treatment requirements of the
Clean Water Act into permits under
section 301(b). It clarifies and sets forth
in regulatory form the long-standing
EPA policy that these technology-based
treatment requirements represent the
minimum levels of controls under
section 402, and that they cannot be
satisfied through the use of "non-
treatment" techniques such as flow
augmentation and in-stream mechanical
aerators (although such techniques may
be used to achieve water quality
standards in certain limited
circumstances).
Technology-based requirements may
be imposed in permits through the
application of an EPA promulgated
effluent guideline or on a case-by-case
basis under section 402(a)(l) of the Act.
Case-by-case determinations must
consider: the factors listed in section
304(b) of the Act for development of
EPA effluent guidelines; EPA draft or
proposed development documents or
other guidance; and other appropriate
factors.
Commenters had little difficulty with
the requirement that EPA promulgated
effluent guidelines limitations must be
applied in permits but several argued
that EPA cannot require technology-
based effluent limitations to be included
in State-issued permits until EPA has
promulgated effluent guidelines, citing
Ford Motor Co. \. EPA, 567 R2d 661 (6th
Cir. 1977) and Washington v. EPA, 573
F.2d 583 (9th Cir. 1978). EPA disagrees
and believes that these commenters
misread those cases. EPA believes that
issuance of these regulations satisfies
the criteria expressed by the court in
Ford Motor Co. v.EPA. (which indicated
that EPA may "veto" State-issued
permits only on the basis of validly
promulgated EPA regulations or clear
statutory requirements). For example,
§ 125.3 contains a clear and explicit
requirement that even if effluent
limitations guidelines have not been
, promulgated for a class or category of
point sources, State and Federal permit
issuers are obligated to establish
technology-based permit requirements.
See United States Steel Corp. v. Train,
556, F.2d 822 (7th Cir. 1977). As to the
decision of the Ninth Circuit in
Washington v. EPA, the court there held
that the requirements of sections 301
and 304 of the Act are not self-
executing, and that there were no
regulations which would support a veto
by EPA. The Agency believes that these
regulations provide the support the court
found lacking in Washington v. EPA,
and that States can properly be required
to set case-by-case technology-based
effluent limitations even where EPA has
not been able to promulgate effluent
limitations guidelines. This requirement
is also supported by the decision of the
Sixth Circuit in Republic Steel Corp, v.
Costle, 581 F.2d 1228 (1978).
Subpart B—Aquaculture
Subpart B (proposed Subpart C) sets
out the criteria and standards for
approving aquaculture research projects.
The final version is essentially
unchanged from the proposal except for
§ 125.11(a)(4). Two commenters pointed
out that the proposal requiring the crop
be fit for human consumption was too
strict, in that it precluded crops which
may be consumed by animals or plants.
Therefore, this requirement was
changed to require only that the crop not
have a significant potential for human
health hazards resulting from its
consumption. As stated earlier, this
Subpart incorporates the criteria found
in former 40 CFR Part 115, and since the
other requirements of 40 CFR Part 115
have been incorporated into the NPDES
regulations revision, 40 CFR Part 115 is
deleted.
Subpart D—Fundamentally Different
Factors Variances
Subpart D (proposed Subpart E)
establishes the criteria for determining
whether a particular industrial
discharger should be subject to more or
less stringent effluent limits than those
required by national effluent limitations
. guidelines or pretreatment standards
promulgated under sections 301(b)(l)(A),
301(b)(2}(A) and (E), and 307(b) of the
Act ("national limits"), because of site-
specific "fundamentally different
factors". When EPA establishes national
limits under these sections of the Act,
EPA considers a great deal of
information regarding the appropriate
statutory factors from various
dischargers in an industrial category. In
some cases, however, data on a
particular discharger may not be
available or may not be considered. It
may therefore be necessary, on a case-
by-case basis, to vary the nationally
prescribed limits for a particular
discharger if the relevant statutory
factors relating to that discharger are
shown to be fundamentally different
from those previously considered by
EPA.
No discharger, however, may be
excused from the Act's requirement to
meet BPT, BCT, BAT or a pretreatment
standard through this variance clause. A
discharger may instead receive an
individualized definition of such a
limitation or standard where the
nationally prescribed limit is shown to
be more or less stringent than
appropriate for the discharger under the
Act.
Subpart D is substantially similar to
proposed Subpart E. However, the
provisions have been reorganized and
edited for greater clarity and have been
revised in certain respects in response
to public comments.
In response to some comments, EPA
has deleted proposed § 125.26(a)(9). This
paragraph would have prohibited a
variance for a discharger if, as a result
of the variance, other dischargers (or
nonpoint sources) would be subject to
additional controls through water
quality wasteload allocations. EPA
agrees that potential changes to
wasteload allocations are irrelevant
when considering the appropriate
technology-based limitation for a
particular discharger under the Act.
EPA has also modified proposed
§ 125.26(b)(3) (now § 125.31(d)(3)) by
deleting the requirement that a
treatment technology must cause a
violation of State or Federal law to be
considered an adverse non-water
quality impact. EPA recognizes that a
discharger's non-water quality impact,
while not in violation of the law, could
be fundamentally worse than the impact
of the dischargers EPA studied when
promulgating a national limit.
EPA has been prompted by other
comments to add a new provision
(§ 125.31(e)(4)) which makes clear that
specific receiving water quality is not a
relevant factor in the fundamentally
different factors variance context To
allow relaxation from technology-based
limits because of case-by-case
variations in receiving water quality
would be grossly violative of the Act
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and contrary to its fundamental
principles. Weyerhaeuser Company v.
Costle. 11 ERG 2149, 2170-73 (D.C. Cir.
1978); Appalachian Power Company v.
Train, 545 F.2d 1351,1360,1378 (4th Cir.
1976); In Re Louisiana-Pacific Corp., 10
ERG 1841 (Administrator's Decision
1977). Similarly, new § 125.31(f) makes
clear that nothing in the variance
provisions impairs rights of States and
localities under section 510 of the Act.
Thus, a State or local government need
not grant a variance even if a discharger
satisfies all of the requirements of
Subpart D.
It should be stressed that only
"fundamental" differences may qualify a
discharger for a variance. The above-
cited authorities and the Act's
legislative history show that Congress
intended for plants in a given industrial
category to meet technology-based
limitations which are as uniform as
possible. EPA's national limits are
therefore "presumptively applicable,"
Appalachian, supra at 1358, and the
variance clause must assure that the
"pin-hole safety valve envisioned in the
Act and duPont does not become a
yawning loophole." Weyerhaeuser,
supra at 2169. Accordingly, a discharger
should not expect to obtain a variance
by merely showing certain differences
between itself and the plants EPA
studied since no two plants in the
country are exactly alike. The
discharger must instead show such a
substantial difference with respect to
one or more of theTelevant statutory
factors that either (i) the costs of
complying would be wholly out of
proportion to the costs EPA considered
on a national basis or (ii) the non-water
quality environmental impact (including
energy requirements) would be
fundamentally more adverse than the
impacts EPA considered on a national
basis.
Paragraph 125.31(e){2) provides that a
variance may not be granted on the
basis that a technology which EPA
relied upon in establishing a national
limit will not achieve the limit at a
particular discharger's plant. Rather, a
variance must be based on a showing
that the discharger's plant is
fundamentally different from the plants
EPA studied. If a discharger does not
believe that EPA's national limit is
supported by a technology which EPA
identified in its rulemaking record, the
discharger's legal recourse is to seek
judicial review of the national limit
under section 509(b)(l)(E) of the Act
within 90 days after promulgation.
Alternatively, if the discharger's
arguments are based solely on grounds
which arose after this 90-day period, the
discharger's remedy is to petition EPA
for an amendment to its national rules.
(See Administrator's final decision in
the matter of Martin Marietta
Aluminum, Inc.'s request for variance
approval, October 1977, at pp. 15-16.)
Finally, as in the proposal, this
Subpart does not apply to national limits
promulgated in 40 CFR Part 423 (steam
electric genera ting point source
category). Pursuant to an order of the
U.S. Court of Appeals for the Fourth
Circuit, EPA has already published a
new BPT variance clause for that
industry; 43 PR 44846, September 29,
1978. EPA plans to propose an
appropriate BAT variance clause for this
category at the same time it proposes
new BAT limitations for steam electric
plants in compliance with the 1977
Clean Water Act Amendments.
Subpart H—Criteria for Determination
of Alternative Thermal Effluent
Limitations Section 316(a).
Subpart H (proposed Subpart I) is
unchanged except for the addition of
language regarding demonstrations of
prior applicable harm discussed below.
This language is now found in new
§ 125.72, Early screening of applications
for section 316(a) variances, {proposed
§ 124.13); this section was moved into
Part 125 because EPA believes it is more
in the nature of a substantive, rather
than a procedural requirement.
Commenters questioned why EPA did
not discuss the use of "absence of prior
appreciable harm" demonstrations for
obtaining thermal variances under
section 316. EPA considers the "absence
of prior appreciable harm"
demonstrations to be very important
part of the section 316(a) process, and
when warranted, encourages their use.
EPA excluded reference to this type of
demonstration because detailed
guidance on how and when to conduct
them will not be included in these
regulations. However, for clarification, a
reference to "absence of prior
appreciable harm" has been added to
this section.
The regulations have also been
revised to provide that the specific
forms of studies prescribed apply only
to the initial grant of a section 316{a)
variance. In many cases, neither the
nature of the thermal discharge nor the
aquatic population will have changed
since a variance was initially granted. It
would therefore be an unnecessary and
costly burden on the Agency and
dischargers alike to require a full section
316(a) demonstration for each renewal
Section 125.72 accordingly gives the
Director the flexibility to require
substantially less information in the
case of renewal requests. This does not
mean, however, that the Director may
not require a full demonstration for a
renewal in cases where he has reason to
believe that circumstances have
changed, that the initial variance may
have been improperly granted, or that
some adjustment in the terms of the
initial variance may be warranted.
Persons holding such a variance should,
of course, be prepared to justify its
continuation with studies based on
actual operating experience, and a
comment has been added to that effect.
One commenter suggested that the
definitions of "representative important
species" and "balanced indigenous
community" should include only native
species unless otherwise designated by
the Director. Another commenter
suggested the inclusion of all species.
EPA has not changed this language.
Several commenters argued that
applicants should not be required to
analyze cumulative effects of thermal
discharges together with other sources
of impact upon the affected species as
required by proposed § 125.47(a) (now
§ 125.72(a)J. This issue was addressed in
the Administrator's first Seabrook
decision which concluded that analysis
of cumulative effects is required.
Several commenters pointed out that
the criteria in proposed § 125.47 (now
§ 125.72) are vague. The criteria have
intentionally been written in a general
manner because, as one commenter
noted, factors in section 316(a)
demonstrations are site-specific. Indeed,
Agency experience in reviewing section
316(a) requests under the more detailed
criteria of the former part 122 ("Thermal
Discharges") has shown the
inappropriateness of such criteria and
has led to the more general criteria of
present Part 125, Subpart H.
Subpart J—Criteria for Extending
Compliance Dates Under Section 301(i)
of the Act
Proposed Subpart K (now Subpart J)
was reserved for the criteria for
extending compliance dates under
section 301(i) of the Act. On May 16,
1978, EPA published interim final
regulations implementing section 301(i)
of the Act (43 FR 21266). Sectidn 301(i)
authorizes the Administrator, or where
appropriate, the State Director, to grant
timely requests for permits extending
the July 1,1977 statutory treatment
requirements to no later than July 1,
1983. These extensions are potentially
available only to POTWs that require
construction to meet 1977 treatment
levels and to certain dischargers which
planned, in good faith, to discharge into
a presently unavailable POTW ("tie-
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Federal Register J Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32895'
ins")- The purpose of the interim final
regulation was to establish the criteria
for granting section 301(i) extensions
and the method for incorporating these
extensions into permits issued under
section 402 of the Act. A 60-day
comment period was provided, and the
Agency received li written comments.
The EPA response to significant
comments, including the development of
an Interim National Municipal Policy
and Strategy [Notice of Availability
published 43 FR 47774, October 17,1978)
is described below.
The Enforcement Compliance Schedule
Letter (ECSL) Policy
In the preamble to the interim final
regulation, EPA announced that no more
municipal ECSLs or comparable State
procedural mechanisms would be issued
"[sjince section 301[i) and the ECSL are
different solutions to the same
noncompliance "problem" (43 FR 21267).
The preamble further stated that ECSL
holders should elect a remedy, they
could either request a section 301(i)
extension and thus ultimately give up
the ECSL or not request a section 301(i)
and thus retain the ECSL. EPA strongly
encouraged all potentially eligible
• POTWs, whether or not they held an
ECSL, to request section 301(i)(l)
extensions. In response to this effort,
over 9,500 POTWs have requested
section 301(i)[l) extensions while
slightly more than 600 POTWs elected to
retain their ECSLs. Thus, almost every
POTW in the Nation which needs
construction to meet the 1977 treatment
deadline has either taken advantage of
section 3Ql(i}(l) or chosen to retain its
ECSL. One commenter expressed the
belief that all ECSLs should remain in
effect and that the prior granting of an
ECSL indicated a finding of good faith
and therefore should be dispositive of a
section 301(i) request. EPA does not
intend to change its policy on the effect
of an extension request on an ECSL
because to do so after the deadline for
301(i}{l) requests (June 26,1978) would
unfairly penalize the 600 ECSL holding
POTWs which may have relied on this
EPA policy in deciding not to request an
extension. EPA also continues to believe
that the prior granting of an ECSL is not •
dispositive of a 301(i) request and that
Congress intended for each request to
be considered independently in light of
the statutory criteria and actions by the
ECSL-holder subsequent to the issuance
of the ECSL.
EPA is aware of possible situations
under section 301(i)(2) where an
extension request must be denied for
reasons completely outside the control
of the discharger (e.g. the POTW did not
request or receive a section 301(i)(l)
extension as required by the Act). In
such a situation, the use of a section
309{a)(6) order to "tie-in" (or
comparable State procedural
mechanism) may be appropriate.
Eligibility for a Section 301(i)(l)
Extension
Under interim final § 124.103, a POTW
would be eligible for a section 301(i)(l)
extension if, among other requirements,
it required construction to achieve
f statutory treatment limitations. The term
"construction" was defined in interim
final § 124.102(a). One commenter
suggested that the definition of
"construction" should be the same as -
the definition in section 212 of the Act.
EPA agrees with this comment,
particularly since the granting of a
section 301(i)(l) request and the
awarding of Federal financial assistance
are closely related. The definition of
"construction" has been changed
accordingly.
Under interim final § 124.103(a), a
POTW that needed construction to
achieve the. statutory treatment
limitations and that had begun "actual
construction, . . before July 1,1977, but
construction could not physically be
completed by July 1,1977, despite all
expeditious effort of the POTW" was
eligible for a section 301(i)(l) extension.
"Actual construction" was intended to
mean that the POTW must have begun a
continuous program of physical
construction of the facility before July 1,
1977, as opposed to actions which have
been abandoned or are so insignificant
that they did not lead to completion of
the facility. However, *vhen the EPA
Regional offices and NPDES States
began to process section 301(i)(l)
requests it became apparent that there
was some confusion as to what "actual"
construction meant since only the term
"construction" was defined. Therefore,
EPA has clarified this concept by
replacing the term "actual construction"
with the definition of the term "initiation
of construction" to allow a precise
definition which is consistent with the
construction grants definition found at
40 CFR § 35.905. Thus, under § 125.93 a
POTW would be eligible for a section
301(i)(l) extension if it: (1) needs
construction to achieve the statutory
treatment limitations; (2) before July 1,
1977, issued a notice to proceed under a
construction contract for any segment of
Step 3 project work (or executed a
construction contract if notice to
proceed was not necessary) and (3)
made all expeditious efforts to complete
construction.
Under interim final f 124.103(b) (now
§ 125.93(b)), a POTW that needed
construction to achieve the statutory
treatment limitations and did not
complete construction because
"{Fjederal financial assistance was not
available, or was not available in time
for construction required to achieve
these limitations, and the POTW did not
in any significant way contribute to this
unavailability or delay", was eligible for
a section 301(i)(l) extension. This
criterion has not been changed. EPA
recognizes that many POTWs,
especially minor POTWs, meet this
requirement but will not receive Federal
funding in time (or at all) to complete
construction by July 1,1983. Since, by
the terms of the Act, these POTWs
cannot be granted a section 301(i)(l)
extension, EPA has developed an
Interim National Municipal Policy and
Strategy which indicates that such
POTWs should receive 309(a)(5)(A)
Administrative Orders (or comparable
State procedural mechanisms) which are
also based on the Construction Grant
process. These orders, like 301(i)(l)
extensions, should not be written to
extend the July 1,1983 deadline.
Section 30l(i)(l) Compliance Schedules
Many commenters expressed
confusion as to when fixed date
compliance schedules, as opposed to
floating or ratchet compliance
schedules, should be used. This
confusion was as a result of the use of
the phrases "when the availability of
Federal funding is certain" and "when
the availability of Federal funding is
uncertain" to indicate what type of
schedule should be used. EPA
discourages the use of ratchet schedules
or floating schedules because they
decrease the ability of the public to
participate in the permit process.
Furthermore, by definition, if the
availability of Federal funding is so
uncertain that compliance with the July
1,1983 deadline cannot reasonably be
assured, then the POTW is not eligible
for a section 301{i) extension. Thus the
regulations now require fixed date
compliance schedules in all instances. In
the Interim National Municipal Policy
and Strategy, EPA established the
priority in which section 301(i)(l)
extension requests should be
considered. Generally, projects in the
earliest stage of the Construction Grant
process (i.e., Step 1) are to be processed
last. One of the reasons for giving Step 1
projects lowest priority was that EPA
recognized that uncertainties in the Step
1 planning process, such as the need to
prepare an Environmental Impact
Statement or to make changes after a
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32896 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
public hearing, make it difficult to
project the amount of time it will take to
complete the Step 1 planning process.
However, if after acting on requests
. from POTWs in Steps 2 and 3,
extensions are granted for POTWs in
Step 1, fixed dates for the submission of
a facility plan should be used,
recognizing that up to a four month
slippage without permit modification is
allowable. Permits issued during or .prior
to Step 1 planning generally should be
written to expire on the date set for
submission of a facility plan. The
reissued permit will then contain a fixed
date compliance schedule derived from
the facility plan. However, if the
permitting authority is able to accurately
establish dates certain beyond the Step
1 process, such dates may be included in
the permit.
When developing fixed date
compliance schedules based on the
construction grant process, the permit
issuing authority should assume that
appropriation will be provided in
accordance with the EPA Annual
Operating Guidance. Use of this
approach in developing permit
compliance dates will be considered
sufficient to meet the requirement that
the permit assure that the July 1,1983
deadline will be met. It should also be
noted that while the regulations
contemplate certification that funding
will be available in time to complete
construction by July 1,1983 to be by
whatever method the EPA Regional
Office and the State agree on, the mere
granting of a section 301(i)(l) extension
by an NPDES State does not constitute
certification.
Subpart K—Criteria and Standards for
Imposing Best Management Practice
Under Section 304(e) of the Act
Proposed Subpart L (now Subpart K)
was reserved for the criteria and
standards for imposing best
management practices under section
304(e) of the Act On September 1,1978,
EPA published proposed regulations
establishing these criteria and standards
(43 FR 39282). Section 304(e) of the Act
authorizes the Administrator to publish
regulations to control plant site runoff,
spillage or leaks, sludge or waste
disposal, and drainage from raw
material storage which may contribute
significant amounts of toxic and
hazardous pollutants to navigable
waters. The purpose of Subpart K is to .
prevent discharges of toxic and
hazardous substances from facilities
which are subject to the NPDES. In
NRDC v. Costle (Runoff Point Sources)
the court recognized EPA's authority
under section 402(a)(l) of the Act to
include BMPs in permits where numeric
effluent limitations are infeasible or
where reasonably necessary to achieve
effluent limitations and standards (see
§122.15{g) (2) and (3) and preamble
discussion to § 122.15(g)). Subpart K,
however, addresses EPA's authority- to
require BMPs under section 304(e) of the
Act.
On September 1,1978, EPA also
proposed Spill Prevention Control and
Countermeasure (SPCC) regulations
under the authority of section
311(j)(l)(C) of the Act. Section
311(j)(l)(C) authorizes the issuance of
regulations establishing procedures,
methods and equipment to prevent
discharges of oil and hazardous
substances from vessels and from on-
shore and off-shore facilities and to
contain such discharges. The purpose of
proposed 40 CFR Part 151 was to
prevent discharges of hazardous
substances from facilities subject to
section 402 permitting requirements.
The approach used in both proposed
regulations was similar to the one
developed and used in EPA's oil
pollution prevention regulation, 40 CFR
Part 112. This was the concept of a plan
developed by the owner or operator of a
facility or by his/her engineer, hi
accordance with guidelines contained in
the respective regulations. The proposal
required that the plans be certified by a
registered professional engineer and
subsequently implemented by the owner
or operator.
The requirements of the two proposed
regulations (40 CFR Parts 125 and 151)
were coordinated and the proposals
stated that compliance by a facility with
the provisions of the SPCC plan
requirements set out in 40 CFR Part 151
would be established as a minimum
level of control for the BMP plan
required by 40 CFR Part 125. The
purpose of publishing the two
regulations concurrently was to allow
the owner or operator of a permitted
facility to develop BMP and SPCC plans
concurrently and thereby avoid
duplication of environmental controls.
The proposal stated that SPCC plans
could be incorporated'into BMP Plans
by reference.
A thirty-day comment period was
provided which was extended twenty
days (43 FR 47213, October 31,1978).
The Agency received 75 comments and
EPA's response to the significant
comments is described below.
Several comments were received
suggesting that BMP Plans and SPCC
Plans are duplicative and should be
developed together. Other comments
requested a clarification of the
relationship between the two. Finally,
some comments argued that since BMPs
and SPCC Plans are authorized by
different sections of the Act, they are
therefore designed for different purposes
and should not be linked. In response to
the first comment, EPA wishes to point
out that BMP Programs and SPCC Plans
are being developed together. This first
step in this development is Subpart K,
i.e., BMPs which involve minor new
construction or modifications to existing
facilities. The second step will be SPCC
Plans (and perhaps another BMP
regulation) which will emphasize
secondary containment to control spills
and may require major construction for
drainage control, sewering and diking.
EPA believes that a requirement for
BMP programs is a necessary step at
this time, for a number of reasons. Many
industrial permits were issued during
1974 and 1975 and will be due for
renewal before the SPCC requirements
under section 311 become effective.
Since the timing for preparation of SPCC
plans by NPDES-pennitted facilities will
be tied to permit reissuance, many
facilities would be subject to no spill
• prevention controls at all until 1984 or
1985. The development of a BMP
program by such facilities will focus
attention on the potential for spills and
other unplanned discharges and help to
prevent such occurrences until the time
SPCC requirements become effective.
BMP programs will be compatible with
later requirements for SPCC plans, and
steps taken in implementing a BMP
program will satisfy some of the SPCC
requirements. Additionally, EPA
believes that prevention of unplanned
releases of toxic materials requires
actions by facilities not yet subject to
SPCC requirements, and that the BMP
program is an effective and relatively
inexpensive way to achieve such
prevention.
EPA also agrees with some
commenters that, while both BMPs and
SPCC Plans have many common
features, their emphasis is different.
Facilities subject to the NPDES Program
normally have continuous discharges of
wastewater and the capability to treat
that wastewater. SPCC Plans, on the
other hand, focus on classic spill events
and may require containment. Thus,
there is some overlap between BMPs
and SPCC Plans (BMPs are normally a "
subpart of SPCC Plans) and therefore a
need exists for a regulatory link. It
should be noted that BMPs are broader
than SPCC Plans in one sense because
BMPs control both section 307 and 311
pollutants whereas SPCC Plans control
only section 311 pollutants.
- Many commenters argued that the
economic impact of the proposed f
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32897
regulations would be excessive and that
the benefits to the environment would
not justify the^expense of employing the
BMPs contemplated by the regulation.
Although EPA explicitly requested
information in the preamble to the
proposed regulation (43 FR 39282)
concerning the costs of BMPs and
preparation of BMP plans for particular
industries, few commenters directly
addressed costs. It appears that the
major categories of expense in the
proposal were for SPCC related
requirements. Because of this economic
impact, EPA has revised today's
regulations to make inclusion of SPCC
plans in BMP programs discretionary
rather than mandatory as was proposed.
(See § 125.104(b)(4](i}.) Thus, Subpart K
emphasizes BMPs of a procedural nature
(especially preventive maintenance and
housekeeping] and BMPs requiring only
minor construction.
Based on a recent EPA survey of
representative plants in the chemical
industry, it appears that many of these
type of BMPs are currently in use by
facilities. Good housekeeping or
preventive maintenance procedures,
material recovery programs, safety
procedures, training programs, etc. are
common and thus the costs of complying
with Subpart K will not be great
Facilities are encouraged, nevertheless,
to begin planning for BMP-related major
construction (drainage control, waste
stream segregation, and secondary
containment) to coincide with
construction related to the installation
of best available technology (BAT) and
of the implementation of (SPCC) plans.
BMP regulations requiring major
construction may be published in the
future.
Under authority of section 402(a)(l) of
the Act, permitting authorities may
impose BMPs -on a case-by-case basis
using best engineering judgment. These
case-specific BMPs may be more Costly
than those contemplated by Subpart K
which requires only procedural BMPs or
minor construction. Guidance to
permitting authorities will emphasize
procedural BMPs and will encourage
equivalency for potentially costly BMPs,
such as secondary containment. Where
permitting authorities have knowledge
of a specific facility or receive
information through the permit
application indicating the opportunity
for discharges of toxic or hazardous
pollutants which could be prevented by
a BMP, the permitting authority may -
impose a BMP based on best
engineering judgment. Such BMPs,
which may involve construction, are
expected to be limited to facilities with
spill histories or other indications of an
inadequate program to control
discharges from ancillary industrial
activities.
Several coramenters argsed that
dictating manufacturing process changes
or operational procedures and activities
went beyond the intent of Congress.
EPA does not intend to use BMPs to
dictate how plants are operated or to
otherwise infringe on plant
management's prerogatives. However,
section 304(e) does give EPA the
authority to prescribe certain "in-plant"
procedures or practices which would be
useful to prevent the discharge of toxic
or hazardous pollutants where
traditional effluent Limitations
guidelines are impractical or ineffective.
To further explain EPA's intent,
changes have been made to proposed
§ 125.62 and i 125.64(b)(4)(iii), now
1125.102 and § 125.104{iii), to clearly
distinguish between ancillary
manufacturing operations (sources of
pollutants) and BMPs (methods to
prevent or minimize pollution). For
example, preventive maintenance and
housekeeping are BMPs, not ancillary
operations. Material storage and
loading/unloading operations are
ancillary manufacturing operations, not
BMPs.
To allow due process and public
notice of BMP programs, permittees are
now required to submit a description of
their program with their NPDES permit
application, (§ 125.104(c)). Some
commenters thought one year for the
implementation of BMP plans, proposed
§ 125.64(c), was too short. EPA feels that
the one year after permit issuance is *
realistic and reasonable, particularly for
the BMPs of a procedural nature or
minor construction required by this
Subpart. However, a discharger could be
given more than one year under special
circumstances such as coordinating a
BMP plan with an SPCC plan required
under 40 CFR Part 151. '
Many commenters suggested that the
term "significant amount" should be
defined or that a minimum amount of a
particular chemical should be specified
to require the preparation of a BMP
plan. EPA has not defined this term but
wishes to clarify its meaning. In the case
of section 311 pollutants EPA has
proposed reportable quantities of
hazardous substances (44 FR 10271. Feb
16,1979) and considers these quantities
potentially significant for the purpose of
this Subpart. For section 307 pollutants,
the fact that a chemical is on the section
307 toxic pollutant list indicates
potentially toxic effects of its discharge.
As guidance to facilities developing
BMP programs, two examples are given
to demonstrate the definition-of
"significant amount",in terms of the
BMPs applicable to a particular
chemical:
1. A facility uses laboratory quantities of
toxic chemical X in an analytical chemistry
laboratory adjacent to its manufacturing
facility. Chemical X is used for no other
purpose at the facility. No more than five
pounds of the chemical are on hand at any
given time. An appropriate BMP could be to
label all containers of chemical X with
instructions such as "Do not dispose of this
•material in laboratory sinks. Refer to
Laboratory Procedures Manual for Disposal
Instructions." The Laboratory Procedures
Manual might further provide that chemical X
and other compatible chemicals be disposed
of in an appropriately labelled 55 gallon drum
to be periodically picked up and treated by a
responsible hazardous waste contractor in
accordance with RCRA regulations.
2. A facility uses thousands of gallons daily
of a hazardous chemical Y (a section 311
Category "A" pollutant) as a raw material in
a batch chemical manufacturing process and
is located next to a small stream. Chemical Y
is stored outside in a single 10,000 gallon tank
and is periodically pumped to the reactor
vessel. An appropriate BMP would be to
provide secondary containment-around the
storage tank in the form of a dike to contain
the maximum volume of chemical Y stored in
the tank plus a reasonable allowance for
rainfall. In the alternate, a facility might
choose to use a combination of measures
instead of secondary containment to attempt
to achieve equivalency to. secondary
containment. For example, a liquid level
alarm, frequent non-destructive testing and
daily visual inspections might be employed
rather than constructing a dike around the
storage tank. However, this latter approach
may not satisfy proposed SPCC requirements
which require the former approach, i.e.,
secondary containment wherever reasonable
probability of a discharge to navigable
waters exists. Thus, provision of secondary
containment would satisfy both BMP and
proposed SPCC requirements simultaneously.
Numerous commenters stated that the
proposed regulations went beyond the
intent of Congress because the
development of BMPs is discretionary
and can ony be on the basis of point
source categories supplemental to
effluent guidelines. EPA disagrees and '
believes that BMP programs and case-
by-case determination of BMPs are
appropriate based on the legislative
history to section 304(e) (see CWA
Legis. Hist, at 453 which specifically
discusses case-by-case determinations
of BMPs). BMPs supplemental to effluent
limitations guidelines have not yet been
promulgated by EPA. However, the
potential for confusion and duplication
of effort by the permittee between BMPs
and SPCC plans has led us to delete the
requirement for a BMP plan in favor of a
BMP program. The BMP program
approach provides a self-regulatory.
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32898 Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations
flexible mechanism to control toxic and
hazardous pollutant discharges from
ancillary sources and will allow
permittees to develop BMPs tailored to
their particular circumstances with
attendant cost savings.
Many comments were received
concerning the relationship of BMPs to
the requirements of the Resource
Conservation and Recovery Act
(RCRA), arguing that RCRA
requirements should not be imposed by
the Clean Water Act EPA disagrees and'
wishes to point out that section 304{e)
specifically includes the phrase "sludge
or waste disposal" as one of four
general activities subject to BMPs. Thus
§ 125.104(b)[4)(ii) has not been changed
and continues to require management
practices developed by companies to
comply with RCRA to simultaneously
satisfy the BMP requirements of the
Clean Water Act by expressly
incorporating the practices into the BMP
program.
Many commenters felt that the
requirement for a professional engineer
(PE) to certify the BMP plan was
unnecessary and should be eliminated
. or made optional. Since Subpart K no
longer requires BMP plans, PE
certification is no longer required.
However, EPA continues to believe that
PE certification wouldiassure a
minimum level of quality in both BMPs
and SPCC plans. Since today's
requlations are the first step in a two
step process, and the second step [SPCC
regulations 40 CFR Part 151) may require
PE certification of SPCC plans, EPA
encourages facilities to develop their
programs in accordance with sound
engineering practices. These facilities
would then have BMP-related
procedures and construction which
could satisfy, in part, future SPCC
requirements.
Economic Impact of Subpart K
Since Subpart K now requires only
BMPs of a procedural nature or those
requiring minor construction, the costs
of compliance with these regulations
should be minimal. Permittees are
encouraged to use innovative,
inexpensive techniques to achieve the
basic goal of preventing the discharge of
toxic or hazardous pollutants from
ancillary industrial activities to surface
waters. Because BMP requirements will
vary among facilities, guidance will be
provided to the permit writers on what
requirements are sufficient. This
guidance will reflect the conclusion of a
BMP cost analysis which is being
undertaken by the Agency. The
guidance will consider reasonableness
of cost. Most facilities have many of
these generic BMPs in place and Subpart
K only requires documentation of the
existing practices or, in some cases,
upgrading and documentation of the
BMP program. Although BMPs requiring
major construction (e.g., grading, paving,
sewering, waste stream segregation,
covering, and secondary containment)
may be included in the BMP program
description, the implementation of these
BMPs is not mandated by these
regulations. Therefore, EPA has
determined that Subpart K does not
constitute a major regulation requiring
the preparation of an economic impact
statement under Excecutive Order
12044.
Because there is much flexibility in
how the individual facility complies
with BMP procedural requirements,
there is also flexibility in compliance
costs. The cost of developing and
implementing BMP procedures is
estimated to be within the range of
$10,000 to $30,000 per facility for the
costs of a materials inventory, some
engineering modifications, training,
maintenance, housekeeping, and some
minor construction for items such as the
installation of liquid level alarms. To
develop these costs the assumption was
made that 50% of the BMP procedural
requirements would already be in place
in order to meet normal safety, fire, and
other occupational or operational
standards. Clearly, a facility with minor
problems will require a less elaborate
program.
Because the requirements may be less
flexible under the SPCC program for
which these BMP requirements are the
first stage and we have so little cost
data now on the BMP procedures
because of their flexibility, further cost
estimates for BMPs will be acquired
when we prepare a detailed analysis of
the SPCC cost requirements. These
estimates will be necessary for the
Agency to adequately assess the cost
and usefulness of specific aspects of the
SPCC program.
Based on existing predictions of
NPDES permit issuance, industrial
facilities will be required to develop and
implement BMP programs on the
following schedule:
Number of Permits
FY1979 „_ „ 2.600
FY1980. 3,000
FY1981 „ 1,700
FY 1982 „.. 1,000
Using an average cost of $20,000 per
facility, the total costs of BMPs, thru FY
1982 are expected to be no greater than
the following:
FY 1981..
FY1982..
. $34,000,000
$23.000,000
FY1979_
FY 1980
™ $52,000,000
$60,000,000
This does not include the cost of
BMPs established tinder authority of
section 402(a)(l) using best engineering
judgment
The Agency may propose a new form
of BMP guidelines in the future which
will describe BMPs which are broadly
applicable to industrial facilities and
relatively independent of the chemical
under consideration. In addition, these
BMP guidelines would address more
specific or advanced BMPs for certain
chemicals or ancillary industrial
activities and would include an
economic impact analysis. Major
construction would probably be
required to comply with these futore
BMPs and likely will be required to
comply with the SPCC regulations.
VI. The Relationship of the NPDES
Program to the Regulation of Hazardous
Substances Under Section 311 of the Act
On November 2,1978, Congress
amended section 311 of the Act (Pub. L.
95-576). Because this Congressional
action was taken after the August 21,
1978 proposal, EPA feels a brief
discussion of the relationship of the
NPDES program to section 311 is
warranted.
Section 311 of the Act regulates
discharges of oil and hazardous
substances and contains reporting
requirements, penalties and other
requirements. Until the 1978
amendments, the relationship between
the requirements of section 311 and
those of section 402 has been unclear. In
particular, it was unclear whether, and
to what extent, discharges from facilities
with NPDES permits were subject to the
provisions of section 311.
On November 2,1978, Congress
amended section 311 and set forth three
types of discharges^ hazardous
substances which will be subject to
sections 402 and 309 of the Clean Water
Act and excluded from section 311
liability. The three cases excluded are
(1) discharges in compliance with a
permit under section 402 of the Act, (2)
discharges resulting from circumstances
identified and reviewed and made a part
of the public record with respect to a
permit issued or modified under section
402 of the Act, and subject to a
condition in such permit, and (3)
continous or anticipated intermittent
discharges from a point source,
identified in a permit or a permit
application under section 402 of the Act,
which are caused by events occurring
within the scope of relevant operating or
treatment systems. These excluded
discharges are exempted from the
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reporting requirements, civil penalties
and clean-up cost liabilities under
. section 311 and are instead subject to
^_ sections 402 and 309 of the Act
On February 16,1979, EPA proposed
regulations addressing the 1978 --.
amendments to section 311 (44 FR10271,
40 CFR § 117.12). The proposed
regulations include detailed criteria for
exclusions from section 311. The
preamble to that proposal contained an
extensive discussion of the criteria for
section 311 exemptions. Interested
persons are advisedto review that
proposal. When the section 311
regulations are published in final form,
they will be incorporated into NPDES
regulations as appropriate. ^
The Agency is presently developing
revised application requirements which
will be announced in the near future in
the form of proposed regulations and a
draft revised NPDES permit application
form (reserved § 122.14(a)). The new
requirements will afford applicants the
opportunity to identify discharges and
spills of hazardous substances. Where
adequate treatment equipment or •
management practices are available to
control such events, permits will contain
appropriate requirements reflecting such
control. Coverage of these discharges or
"spills by permits will result in exemption
from the requirements of section 311.
VII. Conforming Amendments to the
General Pretreatment Regulations 40
CFRPart403.
This rulemaking contains a series of
technical amendments to the General
Pretreatment Regulations for New and
Existing Sources of Pollution (40 CFR
Part 403, 43 FR 27736-27762, June 26,
1978). These amendments will conform
the pretreatment regulations to both the
final NPDES regulations and the Public
Participation Regulations (40 CFR Part
25, 44 FR 10286-10297 February 16,1979).
Since the, provisions in the pretreatment
regulations were based on the proposed
or draft versions of both the regulations,
changes are necessary. The majority of
these changes are in the nature of cross-
reference corrections in 40 CFR Part 403.
The most significant revision is that
the process for EPA review and
approval of State pretreatment programs
is now governed by 40 CFR § 123.61
rather than 40 CFR § 403.11. This was
done to assure that EPA has a uniform
process for approving revisions to State
NPDES programs. The time deadlines
for applying for State pretreatment
program approval and the contents of
the application will continue to be
, governed by § 403.10. It is anticipated
that further amendments to the
pretreatment regulations will be made in
the near future.
Note.—The Enivromnental Protection
Agency has determined that this document
does not constitute a major regulation
requiring preparation of an economic impact
statement under Executive Order 12044. In
accordance with Executive Order 12044, EPA
is committed to evaluating significant new
regulations within five years of
implementation. The evaluation plan for this
regulation was not included in the August 21,
1978 proposal since the Agency policy was
established several months subsequent to
publication of the proposed regulation. Since
an evaluation plan was not included in the
— proposed regulations, an evaluation plan is
not included in this final rule. However, these
NPDES regulations will be incorporated into
the EPA consolidated permit regulations
schedule to be proposed sometime in June
1979. A proposed evaluation plan for these
NPDES regulations will be incorporated into
the overall evaluation plan for the
consolidated permit regulations. EPA
anticipates the evaluation plan will include
assessments of: reporting requirements;
elimination of duplicative requirements for
permit applicants and NPDES States; new
permit procedures designed to reduce
unnecessary delay and the effectiveness of
the reorganization of the regulations for
greater clarity.
Authority.—These regulations are issued
under authority of the Clean Water Act, as
amended by the Clean Water Act of 1977, 33
U.S.C. 11251 et seq.
Date: May 22,1979
Douglas M. Costle,
Administrator.
/
PART 6—PREPARATION OF
ENVIRONMENTAL IMPACT
STATEMENTS
1.40 CFR Part 6, Subpart I, is
amended by deleting § § 6.906, 6.909
6.916 (b) and (c) and 6.918.
PART 115—REQUIREMENTS FOR
APPROVAL OF AQUACULTURE
PROJECTS [DELETED]
2.40 CFR Part 115 is deleted.
PART 121—STATE CERTIFICATION OF
ACTIVITIES REQUIRING A FEDERAL
LICENSE OR PERMIT
3. 40 CFR Part 121 is redesignated
from 40 CFR Part 123.
4. Part 122 is revised to read as
follows:
PART 122—NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
Subpart A—General
Sec.
122.1 Purpose and scope.
122.2 Law authorizing NPDES permits.
122.3 Definitions.
122.4 Exclusions.
122.5 Signatories.
Subpart B—NPDES Permit Application and
Issuance
122.10 Application for a permit.
122.11 Permit issuance; effect of permit.
122.12 Duration of permits and continuation
of expiring permits; Transferability of
permits.
122.13 Prohibitions.
122.14 Conditions applicable to all permits.
122.15 Applicable limitations, standards,
prohibitions, and conditions.
122.16 Calculation and specification of
effluent limitations and standards.
122.17 Schedules of compliance.
Subpart C—Permit Compliance
122.20 Monitoring.
122.21 Recording of monitoring results.
122.22 Reporting of monitoring results and
compliance by permittees.
122.23 Noncompliance reporting.
Subpart D—Permit Modification,
Revocation and Reissuance, and
Termination
122.30 General.
122.31 Modification, revocation and
reissuance, and termination.
Subpart E—Special NPDES Programs
122.40 General.
122.41 Disposal of pollutants into wells, into
publicly owned treatment works or by
land application.
122,42 Concentrated animal feeding
operations.
122.43 Concentrated aquatic animal
production facilities.
122.44 Aquaculture projects.
122.45 Separate storm sewers.
122.46 Silvicultural activities.
122.47 New sources and new dischargers.
122.48 General permit program.
122.49 Special considerations under Federal
law.
Subpart F—Miscellaneous
122.60 Delegation of authority.
Appendix A.—Point Source Categories and
Permit Expiration Dates.
Authority.—Clean Water Act, as amended
by the Clean Water Act of 1977, 33 U.S.C.
1251 et seq; Administrative Procedure Act, 5
U.S.C. 551 et seq.
Subpart A—General
§122.1 Purpose and scope.
(a) The regulations in this Part define
the National Pollutant Discharge
Elimination System (NPDES) program
including permit programs under
sections 402, 318 and 405 of the Act.
They apply to the program as
administered by EPA and, to the extent
incorporated by reference in Part 123, by
approved NPDES States.
(b) The regulations in Parts 123,124,
and 125 also apply to the NPDES
program as follows:
(1) Part 123 describes the
requirements for State participation in
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32900 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
the NPDES permit program and in the
permit program established under
section 404 of the Act ("section 404
program").
(2) Part 124 describes certain
permitting procedures for the NPDES
program; these procedures apply in their
entirety to the program as it is
administered by EPA and, to the extent
incorporated by reference in Part 123, by
approved NPDES States.
(3) Part 125 describes some of the
criteria and standards for making
certain determinations in the NPDES
program; these criteria and standards
apply to the program as administered by
EPA and, to the extent incorporated by
reference in Part 123, by approved ..
NPDES States.
(c) Section 402 of the Clean Water Act
(formerly referred to as the Federal
Water Pollution Control Act), (Pub. L.
92-500, as amended by Pub. L. 95-217
and Pub. L 95-576) establishes the
NPDES program. The NPDES program
also includes permit program
requirements under sections 318 and 405
of the Act. This program regulates the
discharge of pollutants from point
sources and related activities into the
waters of the United States. All such
discharges or activities are unlawful
absent an NPDES permit. After a permit
is obtained, a discharge not in
compliance with all permit terms and
conditions is unlawful.
(d) NPDES permits are issued by the
State Director, or by the EPA Regional
Administrator where there is no
approved State program or where the
permit is for discharges resulting from
activities on Indian lands over which the
States has no jurisdiction.
[Comment: Throughout this Part, the Regional
Administrator is designated as the EPA
permit issuing authority where no State
NPDES program is approved. However,
reference to the "Regional Administrator" for
purposes of permit issuance should be read to
include the Enforcement Division Director.
Similarly, the term "State Director" includes
the delegated representative of the State
Director.]
§ 122.2 Law authorizing NPDES permits,
(a) Section 301(a) of the Act provides
that "Except as in compliance with this
section and sections 302, 306, 307, 318,
402, and 404 of this Act, the discharge of
any pollutant by any person shall be
unlawful."
(b) Section 402(a)(l) of the Act
provides in part that "the Administrator
may, after opportunity for public
hearing, issue a permit for the discharge
of any pollutant, or combination of
pollutants, . . . upon condition that such
discharge will meet either all applicable
requirements under sections 301, 302,
, 306, 307. 308, and 403 of [the] Act or
prior to the taking of necessary
implementing actions relating to all such
requirements, such conditions as the
Administrator determines are necessary
to carry out the provisions of [the] Act."
(c) Section 318(a) of the Act provides
that "The Administrator is authorized,
after public hearings, to permit the
discharge of a specific pollutant or
pollutants under controlled conditions
associated with an approved
aquaculrure project under Federal or
State supervision pursuant to section
402 of this Act"
(d) Section 405 of the Act provides, in
part that "where the disposal of sewage
sludge resulting from the operation of a
treatment works as defined in section
212 of this Act (including the removal of
in-place sewage sludge from one
location and its deposit at another
location) would result in any pollutant
from such sewage sludge entering the
navigable waters, such disposal is
prohibited except in accordance with a
permit issued by the Administrator
under section 402 of the Act"
(e) Sections 402(b), 318 (b) and (c), and
405(c) of the Act authorize EPA approval
of State permit programs for discharges
form point sources, discharges to
aquaculture projects, and disposal of
sewage sludge.
(f) Section 404 of the Act authorizes
EPA approval of State permit programs
for the discharge of dredge or fill
material.
(g) Section 304(i) of the Act provides
that the Administrator shall promulgate
guidelines establishing uniform
application forms and offier minimum
requirements for the acquisition of
information from discharges in approved
States and establishing minimum
procedural and other elements- of
approved State NPDES programs.
(h) Section 501(a) of the Act provides
that "The Administrator is authorized to
prescribe such regulations as are
necessary to carry out his functions
under this Act"
(i) Sedtion 101{e) of the Act provides
that "Public participation in the
development, revision, and enforcement
of any regulations, standard, effluent
limitations, plan, or program established
by the Administrator or any State under
this Act shall be provided for,
encouraged, and assisted by the
Administrator and the States. The
Administrator, in cooperation with the
States, shall develop and publish
regulations specifying minimum
guidelines for public participation in
such processes." Public participation
requirements set forth in these
regulations carry out the purposes of 40
CFR 25 and supersede the requirments
of that Part as they apply to actions
controlled by Parts 121-125 of these
regulations.
§122.9 Definitions.,
The following definitions apply to this
Part and to Parts 123,124 and 125:
[Comment Terms used in this Part and in
Parts 123,124 and 125 which are defined in
• the Act and are not defined here shall have
the meaning provided in the Act]
(a) "Act" means the Clean Water Act
(formerly referred to as the Federal
Water Pollution Control Act) Pub. L. 92-
500, as amended by Pub. L. 95-217 and
Pub. L. 95-576, 33 U.S.C. 1251 et seq.
(b) "Administrator" means the
Administrator of the United States
Environmental Protection Agency.
(c) "Application" means:
(1) The EPA standard national forms
for applying for an NPDES permit
including any subsequent additions,
revisions or modifications, or
(2) Substantially similar forms
approved by EPA for use in approved
States at the time of a program approval
under Part 123, including any approved
subsequent additions, revisions or
modifications.
[Comment: EPA is presently developing a
new application form. The essential elements
of this new application form will be required
to be used by the States.]
(d) "Applicable standards and
limitations" means all State, interstate
and Federal standards and limitations to
which a discharge or related activity is
subject under the Act including, but not
limited to, effluent limitations, water
quality standards, standards of
performance, toxic effluent standards
and prohibitions, best management
practices, and pretreatrnent standards
under sections 301, 302, 303, 304, 308,
307, 218, 403 and 405 of the Act
(e) "Approved State program" means
a State or interstate permit program
which meets the requirements of section
402(b) of the act, and which has been
submitted to and approved by EPA
under §123.51 and section 402(c) of the
Act. Approved State programs must
include authority to regulate discharges
specified in sections 318 and 405 of-the
Act through the NPDES program.
(f) "Best management practices"
"BMPs" includes treatment
requirements, operating and
maintenance procedures, schedules of
activities, prohibitions of activities, and
other management practices to control
plant site runoff, spillage, leaks, sludge
or waste disposal, or drainage from raw
material storage. BMPs may be imposed
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Federal Register / VoL 44. No. Ill / Thursday. June 7. 1979 / Rules and Regulations 32901
in addition to or in the absence of other
applicable standards and limitations.
(g) "Contiguous zone" means the
entire zone established by the United
States under Article 24 of the
Convention on the Territorial Sea and
the Contiguous Zone.
(h) "Direct discharge" means the
discharge of a pollutant or the discharge
of pollutants. j
(i) "Director" means the "Regional
Administrator" or the "State Director,"
as appropriate. _
fComment Where there is no approved State
program, the term "Director" refers to the
Regional Administrator. Where there is an
approved State program, the term "Director"
normally refers to the State Director. In some
circumstances, however, EPA retains
authority to take certain actions even where
there is an approved State program. Kg.,
where EPA issued a permit prior to the
approval of a State program, EPA may retain
Jurisdiction over that permit after program
approval, see §123.1(d). In such cases, the
term"Director" means the Regional
Administrator and not the State Director.]
0) "Discharge" when used without
qualification includes a discharge of a
pollutant and a discharge of pollutants.
(k) "Discharge of a pollutant" and
"discharge of pollutants" each means:
(1) Any addition of any pollutant or
combination of pollutants to navigable
waters from any point source, or
(2) Any addition of any pollutant or
combination of pollutants to the waters
of the contiguous zone or the ocean from
any point source other than a vessel or
other floating craft when being used as a
means of transportation.
This definition includes discharge into
waters of the United States from:
surface runoff which is collected or
channelled by man; discharges through
pipes, sewers, or other conveyances
owned by a State, municipality or other
party which do not lead to treatment
systems; and discharges through pipes,
sewers, or other conveyances, leading
into treatment systems owned in whole
or in part by a third party other than a
State or a municipality.
(1) "Discharge Monitoring Report
("DMR") means the-EPA uniform
national form, including any subsequent
additions, revisions or modifications for
the reporting of self-monitoring results
by permittees. DMRs must be used by
approved States as well as by EPA.
[Comment: EPA win supply DMRs to any
approved State upon request The EPA
uniform national forms may be modified to
substitute the State Agency name, address,
logo, and other similar information, as
appropriate, in place of EPA'sJ
(ta) "Effluent limitation" means any
restriction imposed by the Director on
quantities, rates, and concentrations of
pollutants which are discharged from
point sources into navigable waters, the
waters of the contiguous zone, or the
ocean.
(n) "Enforcement Division Director" •
means the Director of the Enforcement
Division within the appropriate Regional
Office of the Environmental Protection
Agency.
(o) "Environmental Protection
Agency" ("EPA"] means the United
States Environmental protection
Agency.
(p) "Indirect discharger" means a non-
municipal, non-domestic discharger
introducing pollutants to a publicly
owned treatment works, which
introduction does not constitute a
"discharge of pollutants."
(q) "Interstate agency" means an
agency of two or more States
established by or under an agreement or
compact approved by the Congress, or
any other agency of two or more States,
having substantial powers or duties
pertaining to the control of pollution as
determined and approved by the
Administrator.
(r) "Municipality" means a city, town,
borough, county, parish, district
association or other public body created
by or pursuant to State law and having
jurisdiction over disposal of sewage,
industrial wastes, or other wastes, or an
Indian tribe or an authorized Indian
tribal organization, or a designated and
approved management agency under
'section 208 of the Act.
(s) "NPDES" ("National Pollutant
Discharge Elimination System") means
the national program for issuing,
modifying.jevoking and reissuing,
terminating, monitoring, and enforcing
permits pursuant to sections 402, 318,
and 405 of the Act. The term includes
any State or interstate program which . -
has been approved by the
Administrator.
(t) "Navigable waters" means "waters
of the United States, including the
territorial seas." This term includes:
(1) All waters which are currently
used, 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;
(2) Interstate waters, including
interstate wetlands;
(3) All other waters such as intrastate
lakes, rivers, streams {including
intermittent streams], mudflats,
sandflats and wetlands, the use,
degradation or destruction of which
would affect or could affect interstate or
foreign commerce including any such
waters:
(i) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes;
(ii) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce;
(iii) Which are used or could be used
for industrial purposes by industries in
interstate commerce;
(4) All inpoundmants of waters
otherwise defined as navigable waters
under this paragraph;
(5] Tributaries of waters identified in
paragraphs (1M4) ot this section,
including adjacent wetlands; and
(6) Wetlands adjacent to waters
identified in paragaphs (l)-{5) of this
section ("Wetlands" means those areas
that are inundated or saturated by
surface or ground water at a frequency
and duration sufficient to support, and
that under normal circumstances do
support, a prevalence of vegetation
typically adapted for life in saturated
soil conditions. Wetlands generally
included playa lakes, swamps, marshes,
bogs, and similar areas such as sloughs,
prairie potholes, wet meadows, prairie
river overflows, mudflats, and natural
ponds}; provided that waste treatment :,
systems (other than cooling ponds
meeting the criteria of this paragraph)
are not waters of the United States.
[Comment:]'For purposes of clarity the term ,
"waters of the United States" is primarily
used throughout the regulations rather than
"navigable waters"]
(u) "New discharger" means any
building, struture, facility or installation:
(1) which on October 18,1972, has never
discharged pollutants; (2) which has • s
never received a finally effective NPDES
permit (3) from which there is or may be
a new or additional discharge of
pollutants; and (4) which does not fall
within the definition of "new source."
(v) "New source" means any building,
structure, facility or installation from
which there is or may be a discharge of
pollutants the contraction of which
commences:
(1) After promulgation of standards of
performance under section 306 cf the
Act which are applicable to such source;
or
(2) After proposal of standards of
performance under section 306 which
are applicable to such source, but only if
the standards are promulgated within
120 days of their proposal.
[Comment: See S 122.47 for the criteria and
standards to be used in determining whether
a source has commenced construction within
the meaning of this definition, for the types of
-construction activities which result in new
sources or new dischargers, and for the effect
of a new source determination.]
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32902 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations.
(w) "Permit" means any permit issued
by EPA under the authority of section
402 of the Act or by an approved State
under the authority of State law,
controlling the discharge of pollutants
into the waters of the United States.
{Comment. Approved States are not required
to use the EPA standard permit form.
However, State permit forms are reviewed
and approved at the time of NPDES program
approval. See 5 123.3(a)(5).J
(x) "Person" means an individual,
corporation, partnership, association,
Federal agency. State, municipality,
commission, or political subdivision of a
State or any interstate body.
(y) "Point source" means any
discernible, confined and discrete
conveyance, including but not limited to
any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling
stock, concentrated animal feeding
operation, vessel or other floating craft,
from which pollutants are or may be
discharged. This term does not include
return flows from irrigated agriculture.
. (z) "Pollutant" means dredged spoil,
solid waste, incinerator residue, filter
backwash, sewage, garbage, sewage
sludge, munitions, chemical wastes,
biological materials, radioactive
materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt, and
industrial, municipal, and agricultural
waste discharged into water. It does not
mean:
(1) Sewage from vessels or
(2) Water, gas, or other material which
is injected into a well to facilitate
production of oil or gas, or water
derived in association with oil or gas
production and disposed of in a well, if
the well used either to facilitate
production or for disposal purposes is
approved by authority of the State in
which the well is located, and if such
State determines that such injection or
disposal will not result in the
degradation or ground or surface water
resources.
[Comment. The legislative history of the Act
reflects that "radioactive materials" as
included within the definition of "pollutant"
in section 502 of the Act means only
radioactive materials which are not
encompassed in the definition of source, by-
product, or special nuclear materials as
defined by the Atomic Energy Act of 1954, as
amended, and regulated under the Atomic
Energy Act Examples of radioactive
materials not covered by the Atomic Energy
Act and, therefore, included within the term
"pollutant" are radium and accelerator
produced isotopes. See Train v. Colorado
Public Interest Research Group, Inc., 426 U.S.
1 (1976).]
(aa} "Process waste water" means
any water which, during manufacturing.
or processing, comes into direct contact
with or results from the production or
use of any raw material, intermediate
product, finished product, byproduct, or
waste product
fbb) "Publicly owned treatment
works" ("POTW") means a treatment
works as defined in section 212 of the
Act, which is owned by a State or
municipality, excluding any sewers or
other conveyances not leading to a
facility providing treatment.
(cc) "Regional Administrator" means
the Regional Administrator of the
appropriate Regional Office of the
Enviromental Protection Agency or the
delegated representative of the Regional
Administrator.
(dd) "Schedule of compliance" means
a schedule of remedial measures
including an enforceable sequence of
interim requirements (e.g., actions,
operations, or milestone events) leading
to compliance with applicable standards
or limitations or other permit
requirements. Unless otherwise
provided in these regulations, each
schedule shall culminate in a specific
. requirement to achieve expeditious final
compliance with all applicable
standards and limitations.
(ee) "Secretary" means the Secretary
of the Army, acting through the Chief of
Engineers.
(ff) "Sewage from vessels" means
human body wastes and the wastes
from toilets and other receptacles —
intended to receive or retain body
wastes that are discharged from vessels •
and regulated under section 312 of the
Act, except that with respect to
commercial vessels on the Great Lakes
This term includes graywater. For the
purposes of this definition, "graywater"
means galley, bath, and shower water.
(gg) "Sewage sludge" means the
solids, residues, and precipitate
separated from or created in sewage by
the unit processes of a publicly owned
treatment works. "Sewage" as used in
this definition means any wastes,
including wastes from humans,
households, commercial establishments,
industries, and storm water runoff, that
are discharged to or otherwise enter a
publicly owned treatment works.
(hh) "State" means a State, the
District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa,
or the Trust Territory of the Pacific
Islands. • ' — '
(ii) "State Director" means the chief
administrative officer of a State water
pollution control agency or interstate
agency approved by EPA to administer
the NPDES program, or the delegated
representative of the State Director. If
responsibility for water pollution control
and enforcement is divided within a
State agency or among two or more
State or interstate agencies, "State
Director" means the administrative
officer authorized to perform the
particular procedure or function to
which reference is made. "-».-
(jj) "Variance" means any mechanism
or provision under sections 301 or 316 of
the Act and Part 125, or in the applicable
effluent limitation guidelines which
allow modification to or waivers of the
effluent limitation requirements of the
Act. This includes provisions'which
allow the establishment of alternative
limitations based on fundamentally
different factors and sections 301(c),
301(g), 301(h), and 316(a) of the Act,
where appropriate.
' (kk) "Waters of the United States"
means "navigable waters."
§ 122.4 Exclusions.
(a) The following discharges do not
require an NPDES permit:
(1) Any discharge of sewage from
vessels, effluent from properly .
functioning marine engines, laundry,
shower, and galley sink wastes, or any
other discharge incidental to the normal
operation of a vessel. This exclusion
does not apply to rubbish, trash,
garbage, or other such materials
discharged overboard; nor to other
discharges when the vessel is operating
in a capacity other than as a means of...
transportation such as when a vessel is
being used as an energy or mining
facility, a storage facility, or a seafood
processing facility, or is secured to the
bed of the ocean, contiguous zone, or
waters of the United States for the
purpose of mineral or oil exploration or
development;
(2) Discharges of dredged or fill
material into waters of the United States
and regulated under section 404 of the
Act
(3) The introduction of sewage,
industrial wastes or^other pollutants into
publicly owned treatment works by
indirect dischargers.
[Comment: This exclusion applies only to the
actual introduction of pollutants into publicly
owned treatment works. Plans or agreement
to switch to this method of disposal in the
future do not relieve dischargers of the
obligation to apply for and receive permits
until all discharges of pollutants to waters of
the United States are actually eliminated. All
applicable pretreataient standards
promulgated under section 307(b) of the Act
must also be complied with, and may be
included in the permit to the publicly owned .
treatment works. This exclusion does not
apply to the introduction of pollutants to
privately owned treatment works or to other
discharges through pipes, sewers, or other
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Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations 32903
conveyances owned by a Stale, municipality,
or other party not leading to treatment works.
See Sl213(k)l.
(4) Any introduction of pollutants
from agricultural and •sirvicaltural
activities, including runoff from
orchards, cultivated crops, pastures,
range lands, and forest lands, except
that this exclusion shall not apply to:
[i] Discharges from concentrated
animal feeding operations as defined in
§122.42;
(ii) Discharges from concentrated
aquatic animal production facilities as
defined in § 122.43;
(Hi) Discharges to aquacultare projects
as defined in § 122.44; and
(iv) Discharges from silvicultural point
sources as defined in § 122.46.
(b) The exemption of a discharge from
NPDES requirements in paragraph (a) of
this section does not preclude State
regulation of the exempted discharge
under State authority, in accordance
with section 510 of the Act.
§ 122.5 Signatories.
. (a) All permit applications shall be
signed as follows:
(1) For a corporation, by a principal
executive officer of at least the level of
vice president
(2) For a partnership or sole
proprietorship, by a general partner or
the proprietor, respectively; or
(3) For a muncipality. State, Federal,
or other public facility, by either a
principal executive officer or ranking
elected official
(b) All other reports or requests for
information required by the permit
issuing authority shall be signed by a
person designated in paragraph (a) or a
duly authorized representative of such
person, if:
(1) The representative so authorized is
responsible for the overall operation of
the facility from which the discharge
originates, e.g, a plant manager,
superintendent or person cf equivalent
responsibity;
{2] The authorization is made in
writing by the person designated under
paragraph (a); and
(3) The written authorization is
submitted to the Director.
(c) Any changes In the written
' authorization submitted to the
permitting authority under paragraph (b)
which occur after the issuance of a
permit shall be reported to the
permitting authority by submitting a
copy cf a new written authorization
which meets the requirements of
paragraph (b) (1) and (2).
(d) Any person signing any document
under paragraph (a) or (b) shall make
the following certification: "I certify
under penalty of law that I have
personally examined and am familiar
with the information submitted in the
attached document; and based on my
inquiry of those individuals immediately
responsible for obtaining the
information, I believe the submitted
information is true, accurate and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of
fine and imprisonment"
[Comment- The permit application will be
revised to incorporate this statement Where
a permit program document does not contain
the statement, the certification must
accompany the appropriate document]
- (e) This section is applicable to
approved States (see § 123.12). States
may adopt language which is equivalent
to, but not identical to, the certification
statement in paragraph (d), if such
equivalent language is approved by the
Regional Administrator.
Subpart B—NPDES Permit Application
and Issuance
§ 122.10 Application for a permit.
(a) Any person who discharges or
proposes to discharge pollutants, except
persons covered by general permits
under § 122.48 or excluded under
§ 122.4, shall complete, sign, and submit
an application (which includes a BMP
program if necessary under § 125.102) to
the Director in accordance with Part 124,
Subpart R
(b) Persons currently discharging who
have:
(1) Existing permits shall submit a
new application under paragraph (cj of
this section where facility expansions,
production increases, or process
modifications will:
(i) Result in new or substantially
increased discharges of pollutants or a
change in the nature of the discharge of
pollutants, or
pi) Violate the terms and conditions of
the existing permit
(2) Expiring permits shall submit new
applications at least 180 days before the
expiration date of the existing permit,
unless permission for a later date has
been granted by the Director.
(c) A person proposing a new
discharge shall submit an application at
least 180 days before the date on which
the discharge is to commence, unless
permission for a later date has been
granted by the Regional Administrator.
[Comment: Persons proposing a new
discharge are encouraged to submit their
applications well in advance of the 180 day
requirement to avoid delay. In addition,
information required by 1124.12[b){l) must
be submitted before on-site construction.
which normally will commence long before
the permit application & required.]
§ 122.11 Permit Issuance; effect of permit
(a) The receipt of a complete
application by the Director initiates the
permit issuance process described in
Part 124.
(b) Following the permit issuance
process me Director may issue or deny a
finally effective permit Where EPA is
the permitting authority. EPA action
shall not be final for die purpose of
judicial review under section 509(b) of
the Act until this issuance or denial has
taken place. (See S 124.61).
(c) Compliance with a permit during
its term constitutes compliance, for
purposes of sections 309 and 505, with
applicable standards and limitations of
the Act except for any standard
imposed under section 307 for a toxic
pollutant injurious to human health.
However, a permit may be modified.
revoked and reissued, or terminated
during its term for cause as described in
§122.31.
(d) The issuance of a permit does not:
(1) Convey any property rights of any
sort, or any exclusive privileges;
(2) Authorize any injury to private
property or invasion of other private
rights, or any infringement of Federal,
State, or local laws or regulations; or
(3) Preempt any duty to obtain State
or local assent required by law for the
discharge.
§ 122.12 Duration of permits and
continuation of expiring permits;
transf erabflity of permits.
(a) Duration of Permits. All permits
shall be issued for fixed terms not to
exceed five years. Permits of less than
five years duration may be issued in
appropriate circumstances (see
paragraph (c)). Permits may be modified,
revoked and reissued, or terminated as
specified in Subpart D. Except for the
continuation provisions of paragraph (b]
for expiring permits,-the term of a permit
shall not be extended beyond five years
from its original date of effectiveness by
modification, extension or other means.
(b) Continuation of expiring permits.
(1) Where EPA is the permit issuing
authority, the terms and conditions of an
expired permit are automatically
continued under 5 U.S.C. § 558(c)
pending issuance of a new permit if:
(i) The permittee has submitted a
timely and sufficient application for a
new permit under § 122.10{a); and
(ii) The Regional Administrator is
unable, through no fault of the permittee,
to issue a new permit before the
expiration date of the previous permit
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32904 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
(e.g., where it is impracticable due to
time and/or resource constraints).
(2) Permits continued under paragraph
(b)(l) remain fully effective and
enforceable against the discharger.
(3) Where the permittee is not in
compliance with the terms and
conditions of the expiring permit:
(i) The permit may be continued under
, this section pending a final
determination by the Regional
Administrator on the application for a
new permit and enforcement action may
be taken based upon the. continued
permit; or
(ii) The Regional Administrator may
make a determination to deny the
application for a new permit in
accordance with the procedures,
specified in Part 124. The discharger
would then be subject to enforcement
action for discharging without a permit.
(4) States authorized to administer the
NPDES may continue permits in a
similar manner if so authorized by State
law. However, a permit is not continued
under Federal law where EPA originally
issued the permit, but the State is the
permitting'authority at the time the
permit expired. In such case, the
discharger is discharging without a
permit, from the time the EPA-issued
permit expires to the time that the State-
issued permit is effective.
(c) No permit issued to a discharger
within an industrial category listed in
Appendix A of this Part, prior to the
applicable permit expiration date listed
in Appendix A, may be issued to expire
after that date, unless:
(1) The permit incorporates effluent
limitations and standards applicable to
the discharger which are promulgated or
approved under sections 301(b)(2)(C)
and (D), 304(b}(2), and 307(a}{2) of the
Act; or -
[Comment: EPA is presently reviewing and
revising effluent limitations guidelines for
industries listed in Appendix A, In some
cases, EPA may approve existing guidelines
or choose not to develop new guidelines. If
EPA decides noHo develop new effluent
guidelines, it will publish notice in the
Federal Register as to that decision. Such a
Federal Register notice would mean, in
effect, that the guidelines are "approved" for
the purpose of this regulation.]
(2) The permit incorporates:
(i) The "reopener clause" required by
§ 122.15(b)(l); and
(ii) Effluent limitations to meet the
requirements of sections 301(b){2) (A),
(C), (D), (E) and (F) of the Act.
[Comments: (1) NPDES States are urged to
issue short term permits expiring on or before
the dates listed in Appendix A. This will
ensure that all appropriate provisions of the
Act, including compliance with the effluent
limitations by the statutory deadlines, are
met in permits issued after the promulgation
of effluent guidelines under sections 301(b}[2)
(q and (D), 304(b)(2), and 307(a)(2). Even if
States issue long term permits with later
expiration dates (in accordance with
paragraph (c)(2)), dischargers are legally
required to meet all applicable statutory
deadlines and requirements, including
compliance with any promulgated EPA
effluent guidelines defining "best
conventional pollutant control technology"
(BCT) and "best available control technology
economically achieveable" (BAT).
(2) A determination that a particular
discharger falls within a given industrial
category for purposes of setting a permit
expiration date under paragraph (c) is not
conclusive as to the discharger's inclusion in
that industrial category for any other
prupose, and does not prejudice any rights to
challenge or change that inclusion at the time
a new permit based on that determination is
formulated.]
(d) Transferability of permits. A
permit may be transferred to another
person by a permittee if.
(1) The permittee notifies the Director
of the proposed transfer;
(2) A written agreement containing a
specific date for transfer of permit
responsibility and coverage between the
current and new permittees (including
acknowledgement that the existing
permittee is liable for violations up to
that date, and that the new permittee is
liable for violations from that date on) is
submitted to the Director; and
(3) The Director within 30 days does
not notify the current permittee and the -
new permittee of his or her intent to
modify, revoke and reissue, or terminate
the permit and to require that a new
application be filed rather than agreeing
to the transfer of the permit.
[Comment A new application could be
required under this paragraph where the
change of ownership is accompanied by a
change or proposed change in process or "
wastewater characteristics or a change or
potential change in any circumstances that
the permitting authority believes will affect
the conditions or restrictions in the permit.]
§122.13 Prohibitions.
No permit shall be issued hi the
following circumstances:
(a) Where the terms or conditions of
the permit do not comply with the "
applicable guidelines or requirements of
the Act, or regulations.
(b) Where the applicant is required to
obtain a State or other appropriate
certification under section 401 of the Act
and Part 124, Subpart C, and that
certification has not been obtained or
been waived.
(c) By the State Director where the
Regional Administrator has objected to
issuance of the permit under § 123.23.
(d) Where the imposition of conditions
cannot ensure compliance with the
applicable water quality requirements of
all affected States as required by section
401(a){2)oftheAct
(e) Where, in the judgment of the
Secretary, anchorage and navigation in
or on any of the waters of the United
States would be substantially impaired ,
by the discharge.
(f) For the discharge of any
radiological, chemical, or biological
warfare agent or high-level radioactive.
waste.
(g) For any discharge from a point
source inconsistent with a plan or plan
amendment approved under section
208(b)oftheAct
(h) For any discharge to the territorial
sea, the waters of the contiguous zone,
or the oceans in the following
circumstances:
(1) Prior to the promulgation of the
guidelines under section 403(c) of the
Act, unless the Director determines'
permit issuance to be in the public
interest; or
(2) After promulgation of guidelines .
Bunder section 403(c) of the Act, where
insufficient information exists to make a
, reasonable judgment as to whether the
discharge complies with any such
guidelines.
(i) To a facility which is a new source
or a new discharger, if the discharge
from the construction or operation of the
facility will:
(1) Cause or contribute to the violation
of water quality standards if the point of
discharge is located in a segment that
was an effluent limitation segment (as -•
defined in 40 CFR § 130.2(o)(2)) prior to
the introduction of the discharge from
the new source or new discharger; or
(2) Exceed the total pollutant load
allocation if the discharge is into a
water quality segment as defined in 40
CFR § 130.2(o)(l).
The owner or operator of a facility
which is a new source or new discharger
into a water quality segment mustalso
demonstrate, at the time of applying for
a permit that there are sufficient
remaining pollutant load allocations to
allow the discharge and that the facility
is entitled to these allocations.
§ 122.14 Conditions applicable to all
permits.
The following conditions apply to all
permits, whether issued by the Regional
Administrator or the State Director.
They shall be either expressly
incorporated into the permit or
incorporated by reference.
[Comment If not incorporated by reference,
the inclusion of the requirements of this
section into permits may require some
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32905
wording changes. Where this is the case, the
permit conditions should be worded
substantially similar to the requirements of
this section, and should be of equivalent
force.]
(a) [Reserved]
[Comment: This paragraph is reserved
pending publicationlof a revised NPDES
application form. When a proposed revised
application form is available this paragraph
will be reproposed in a manner consistent
with the proposed revised form. At that time
EPA will outline a comprehensive scheme for
the relationship between the data required in
the application form, monitoring
requirements, permit conditions, and the
pollutants authorized to be discharged by the
permit and not authorized to be discharged
by the permit. The existing NPDES
application forms should be utilized until the
revised application form is available, except
as otherwise provided in these regulations.
See § 122.5.]
(b) All discharges shall be consistent
with the terms and conditions of the
permit.
(c) The permit may be modified,
terminated, or revoked during its term
for cause as described in § 122.31.
(d) If any applicable toxic effluent
standard or prohibition (including any
schedule of compliance specified in such
effluent standard or prohibition) is
established under section 307(a) of the
Act for a toxic pollutant and that
standard or prohibition is more stringent
than any limitation upon such pollutant
in the permit, the Director shall institute
proceedings under these regulations to
modify or revoke and reissue the permit
to conform to the toxic effluent standard
or prohibition.
[Comment: Effluent standards or prohibitions
established under section 307(a] for toxic v
pollutants injurious to human health are
effective within the time provided in the
implementing regulations, even absent permit
modification.]
(e) Any permittee who knows or has
reason to believe that any activity has
occurred or will occur which would
constitute cause for modification or
revocation and reissuance under
§ 122.31 must report its plans, or such
information, to the Director so that the
Director can decide whether action to
modify or revoke and reissue a permit
under § 122.31 will be required. The
Director may then require submission of •
a new application. Submission of such
application does not relieve the
discharger of the duty to comply with
the existing permit until it is modified or
reissued.
(f) The permittee shall allow the
Director, or an authorized
representative, upon the presentation of
credentials and such other documents as
may be required by law:
(1) To enter upon the permittee's
premises where a point source is located
or where any records must be kept
under the terms and conditions of the
permit;
(2) To have access to and copy at
reasonable times any records that must
be kept under the terms and conditions
of the permit;
(3) To inspect at reasonable times any
monitoring equipment or method
required in the permit;
(4) To inspect at reasonable times any
collection, treatment, pollution
management, or discharge facilities „
required under the permit; and
(5) To sample at reasonable times any
discharge of pollutants.
(g) The permittee shall at all times
maintain in good working order and
operate as efficiently as possible all
facilities and systems (and related
appurtenances) for collection and
treatment which are installed or used by
the permittee for water pollution control
and abatement to achieve compliance
with the terms and conditions of the
permit. Proper operation and
maintenance includes but is not limited
to effective performance based on
designed facility removals, adequate
funding, effective management,
adequate operator staffing and training,
and adequate laboratory and process
controls including appropriate quality
assurance procedures.
(h)(l) If, for any reason, the permittee
does not comply with or will be unable
to comply with any maximum daily or
average weekly discharge limitations or
standards specified in the permit, the
permittee shall, at a minimum, provide
the Director with the following
information as specified in paragraph
(i) A description of the discharge and
cause of noncompliance;
(ii) The period of noncompliance,
including exact dates and times and/or
the anticipated time when the discharge
will return to compliance; and
(iii) Steps being taken to reduce,
eliminate, and prevent recurrence of the
noncomplying discharge.
(2)(i) In the case of any discharge
subject to any applicable toxic pollutant
effluent standard under section 307(a),
the information required by paragraph
(1) regarding a violation of such
standard shall be provided within 24
hours from the time the permittee
becomes aware of the circumstances. If
this information is provided orally, a
written submission covering these
points shall be provided within five
days of the time the permitfee becomes
aware of the circumstances covered by
this paragraph.
(ii) In the case of other discharges
which could constitute a threat to
human health, welfare, or the
environment, the Director may require
that the information required by
paragraph (1) be provided within 24
hours or five days from the time the
permittee becomes aware of the
circumstances. Where the Director
requires 24-hour notice, if the
information is provided orally, a written
submission covering these points must
be provided within five days of the time
the permittee becomes aware of the
circumstances covered by this
paragraph.
[Comment: Discharges that may be required
to be reported within 24 hours under
paragraph (h)(2)(ii) could include discharges
containing section 311 pollutants or
pollutants which could cause a threat to
public drinking water supplies.]
(iii) Where a permittee orally reports
a violation within 24 hours in
accordance with paragraphs (h)(2) (i) or
(ii), the Director may waive, on a case-
by-case basis, the requirement that a
written submission be provided within
five days of the time the permittee
becomes aware of the violation.
(iv) In all other cases this information
shall be provided in the DMR in
accordance with the requirements of
§ 122.22.
(i) The permittee shall take all
reasonable steps to minimize any
adverse impact to waters of the United
States resulting from noncompliance
with the permit.
(j) The permittee, in order to maintain
compliance with its permit, shall control
production and all discharges upon
reduction, loss, or failure of the
treatment facility unitl the facility is
restored or an alternative method of
treatment is provided. This requirement
applies in the situation where, among
other things, the primary Source of
power of the treatment facility is
reduced, lost, or fails.
(k) Bypass.
(1) Definitions.
(i) "Bypass" means the intentional
diversion of wastes from any portion of
a treatment facility.
(ii) "Severe property damage" means
substantial physical damage to property,
damage to the treatment facilities which
would cause them to become inoperable,
or substantial and permanent loss of
natural resources which can reasonably
be expected to occur in the absence of a
bypass. Severe property damage does
not mean economic loss caused by
delays in production.
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32906 Federal Register / Vol. 44. No. Ill / Thursday, June 7, 1979 / Rules and Regulations
(2) Conditions necessary for bypass.
Bypass is prohibited unless the
following four conditions are meU
(i) Bypass is unavoidable to prevent
loss of life, personal injury or severe
property damage;
(ii) There are no feasible alternatives
to bypass, such as the use of auxiliary
treatment facilities, retention of
untreated wastes, or maintenance
during normal periods of equipment
down-time;
(iii) The permittee submits notice of
an unanticipated bypass to the Director
within 24 hours of becoming aware of
the bypass (if this information is
provided orally, a written submission
must be provided within five days).
Where the permittee knows or should
have known in advance of the need for a
bypass, this prior notification shall be
submitted for approval to the director, if
possible, at least ten days before the
date of the bypass;
[Comment: Fully efficient operation of
treatment systems is required at all times.
Although this generally requires the use of all
portions of an existing treatment system, in
some cases, maintenance necessary to ensure
.. efficient operation may require bypassing
portions of a system. Where-such a bypass
will not cause applicable effluent limitations
or standards to be exceeded, it may be done
without notification to the permitting
authority. Where, however, a bypass is
undertaken for reasons other than essential
maintenance or where a bypass would cause
effluent limitations or standards to be
exceeded, it may be undertaken only in
accordance with the provisions of this
section.]
(iv) The bypass is allowed under
conditions determined to be necessary
• by the Director to minimize any adverse
effects. The public shall be notified and
given an opportunity to pomment on
bypass incidents of significant duration,
to the extent feasible.
(3) Prohibition of bypass. The Director
may prohibit bypass in consideration of
the adverse effect of the proposed
bypass or where the proposed bypass
does not meet the conditions set forth in
paragraphs (k)(2) (i) and (ii).
[Comment: When a bypass occurs, the
burden is on the discharger to demonstrate
compliance with this paragraph. If the reason
for the bypass was the need for regular
preventive maintenance, for which backup
equipment should have been provided by the
discharger, in accordance with paragraph
(2)(ii), the bypass will not be allowed. If there
is any doubt as to the necessity of the bypass
or the availability of methods to reduce or
eliminate the discharge, appropriate
enforcement action may be taken.]
(1) Upset—(1) Definition. "Upset"
means an exceptional incident in which
there is unintentional and temporary
noncompliance with technology-based
permit effluent limitations because of
factors beyond the reasonable control of
the permittee. An upset does not include
noncompliance to the extent caused by
operational error, improperly designed
treatment facilities, inadequate
treatment facilities, lack of preventive
maintenance, or careless or improper
operation.
(2) Effect of an upset. An upset shall
constitute an affirmative defense to an
action brought for noncompliance with
such, technology-based permit effluent
limitations if the requirements of
paragraph (1](3} are met.
(3) Conditions necessary for a
demonstration of upset. A permittee
who wishes to establish the affirmative
defense of upset shall demonstrate,
through properly signed,
contemporaneous operating logs, or
other relevant evidence that:
(i) An upset occurred and that the
permittee can identify the specific
cause(s) of the upset;
(ii) The permitted facility was at the
time being operated in a prudent and .
workman-like manner and in
compliance with proper operation and
maintenance procedures;
(iii) The permittee submitted
information required in § 122.14(h)(l)
within 24 hours of becoming aware of
the npset (if tbisjnformation is provided
orally, a written submission must be '
provided within five days), and
(iv) The permittee complied with any
remedial measures required under
§ 122J4(i).
(4) Burden of proof. In any
enforcement proceeding the permittee
seeking to establish the occurrence of an
upset shall have the burden of proof.
[Comments: [1] Upset is only available for
permit limits which are based on technology.
It is not available for non-technology-based
requirements such as water quality
standards, State laws, or health or
environmentally based toxic pollutant
effluent standards. (2) Although in the usual
exercise of prosecutorial discretion. Agency
enforcement personnel should review any
claims that noncompliance was caused by an
upset, no determination made in the course of
thg review constitutes final Agency action'
subject to judicial review. Permittees wiE
have the opportunity for a judicial
determination on any claim of upset only in
an enforcement action brought for
noncompliance with technology-based permit
effluent limitations.]
§ 122.15 Applicable (Imitations, standards,
prohibitions, and conditions.
Each NPDES permit shall provide for
and ensure compliance with all
applicable requirements of the Act and
regulations promulgated under the Act.
For the purposes of this section, an
applicable requirement is a statutory or
regulatory requirement whieh takes
effect prior to final administrative
disposition of a permit issued by a State
with an approved NPDES program, or, in
the case of a permit issued by EPA,
which takes effect prior to the issuance
of the permit except as provided in
§ 124.86(c), Permits shall ensure
compliance with the following as
applicable:
(a) Effluent limitations and standards
under sections 301, 302, 303, 304, 307,
318, and 405 of the Act, including any
interim final limitations and standards.
(b) For a discharger within any
industrial category listed in Appendix A,
requirements under section 307(a)(2) of
the Act, as follows:
(1) Prior to the applicable permit
expiration date listed in Appendix A,
(i) If applicable standards or
limitations have not yet been issued:
(A) The permit shall include
conditions stating that, if an applicable
standard or limitation is issued or
approved under sections 301(b)(2) (C)
and (DJ, 304(b)(2) and 307(a)(2) and such
effluent standard or limitation is more
stringent than any effluent Bmjtation in
the permit or controls a pollutant not
limited in the permit, the permit shall be
promptly modified or, alternatively.
revoked and reissued in accordance
with such effluent standard or limitation
and any other requirements of the Act
then applicable.
[Comment: The following language is an
acceptable permit condition for the purposes
of this section:
. "This permit shall be modified, or
alternatively, revoked and reissued, to
comply with any applicable standard or
limitation promulgated or approved under
sections 301(b}(2) (C) and (D), 304(b){2), and
307(a){2] of the Clean Water Act, if the
effluent standard or limitation so issued or
approved:
(i) Contains different conditions or is
otherwise more stringent than any effluent
limitation in the permit; or
(ii) Controls any pollutant not limited in the
permit
The permit as modified or reissued under
this paragraph shall also contain any other
requirements of the Act then applicable/*]
(B) The Director shall promptly
modify, or alternatively revoke and
reissue, the permit to incorporate an
applicable standard or limitation under
sections 301(b)(2) (C) and (D), 304(b)(2),
and 3O7(a)(2) is issued or approved if
such effluent standard or limitation is
more stringent than any effluent
limitation in the permit, or controls a
pollutant not limited in the permit.
[Comment The requirements of this section
are intended to assure compliance with the
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32907
1984 statutory deadline for the achievement
of best available technology economically
achievable for pollutants now listed under
section 307(a)(l) of the Act. When a permit is
modified or revoked and reissued pursuant to
subparagraph (B), additional limitations may
be included hi the permit to assure
achievement of applicable statutory
requirements [e.g., best conventional
pollutant control technology for
"conventional" pollutants and best available
technology economically achievable for "non-
conventional" pollutants) by appropriate
statutory deadlines.]
(ii) If applicable standards or
limitations have been issued, the permit
shall include those standards or
limitations.
(2) Any permit issued after the
applicable permit expiration date listed
in Appendix A, shall include effluent
limitations and a compliance schedule
to meet the requirements of sections
301(b)(2) (A), (C), (D), (E). and (F) of the
Act, whether or not applicable effluent
limitations guidelines'have been
promulgated or approved. Such permits
need not incorporate the clause required
by paragraph (b)(l)(i)(A) of this section.
(c) Standards of performance for new
sources under section 306 of the Act,
including any promulgated interim final
effluent limitations and standards.
(d) If the permit is for a discharge
from a publicly owned treatment works,
a condition requiring the permittee to:
(1) Provide adequate notice to the
Director of the following:
(i) Any new introduction of pollutants
into that POTW from an indirect
discharger which would be subject to
sections 301 or 306 of the Act if it were
directly discharging those pollutants;
and
(ii) Any substantial change in the
volume or character of pollutants being
introduced into that POTW by a source
introducing pollutants into the POTW at
the time of issuance of the permit.
[Comment: For purposes of this paragraph,
adequate notice shall include information on
(1J the quality and quantity of effluent to be
introduced into such POTW and (2) any
anticipated impact of such change in the
quantity or quality of effluent to be
discharged from such POTW.]
(2) Identify, in terms of character and
volume of pollutants, any significant
indirect dischargers into the POTW
subject to pretreatment standards under
section 307{b) of the Act and 40 CFR
Part 403.
(3) Establish a local program when
required by and in accordance with 40
CFR Part 403 to assure compliance with
pretreatment standards to the extent
applicable under section 307(b), The
local program shall be incorporated into
the permit as described in 40 CFR Part
403.
(4) Require any indirect discharger to
such POTW to comply with the
reporting requirements of sections
204(b), 307, and 308 of the Act, including
any requirements established under 40
CFR Part 403.
(e) Any conditions imposed in grants
made by the Administrator to POTWs
under sections 201 and 204 of the Act
which are reasonably necessary for the
achievement of effluent limitations
under section 301 of the Act
[Comment: Among other things, this
paragraph contemplates permit conditions
embodying measures to protect the POTW
against overloading and schedules of
compliance which are consistent with, and
determined from, construction grant award
dates.]
(f) Any requirements in addition to or
more stringent than promulgated
effluent limitations guidelines or
standards under sections 301, 304,306,
307, 318 and 405 where necessary to:
(1) Achieve water quality standards
established under section 303 of the Act;
(2) Attain or maintain a specified
water quality through water quality
related effluent limits established under
section 302 of the Act;
(3) Conform to the conditions of a
State certification under section 401 of
the Act where EPA is the permit issuing
authority;
(4) Conform to applicable water
quality requirements under section
401(a}(2) of the Act when the discharge
affects a State other than the certifying
State;
(5) Incorporate any more stringent
limitations, treatment standards or
schedules of compliance requirements
established under Federal or State law
or regulations in accordance with
section 301(b){l}(C) of the Act;
(6) Ensure consistency with the
requirements of a Water Quality
Management plan approved by EPA
under section 208(b) of the Act;
(7) Incorporate section 403(c] criteria
under Part 125 Subpart M for ocean
discharges;
(8) Incorporate alternative effluent
limitations or standards where
warranted by "fundamentally different
factors," under Part 125 Subpart D;
(9) Incorporate other requirements, or
conditions, or limitations into a new
source permit under the National
Environmental Policy Act 42 U.S.C.
§ §4321 et seq. and section 511 of the
Act, where EPA is the permit issuing
authority;
(10) Establish oa a case-by-case basis
technology-based limitations-controlling
a pollutant not included in promulgated
effluent limitation guidelines or ,
standards in accordance with §125.3.
(g) Best management practices to "
control or abate the discharge of
pollutants where:
(1) Authorized under section 304(e) of
the Act for the control of toxic and
hazardous pollutants from ancillary
industrial activities;
(2) Numeric effluent limitations are
infeasible; or
(3) The practices are reasonably
necessary to achieve effluent limitations
and standards or to carry out the
purposes of the Act
[Comment: Examples of best management
practices which may be imposed under (g)(2)
include: a) proper operator qualifications of
treatment facility personnel (see Decision of
the General Counsel No. 19), and b) sludge-
handling requirements (see Decision of
General Counsel No. 33). Examples of best
management practices which may be
imposed under (g)(3) include: a) coal mining
operation's diversion of water from an active
coal mining area to prevent contact between
water and iron pyrites which could react to
form sulfuric acid and wastewaters with low
pH values; (b) the construction of sheds over
material storage piles to prevent rainfall from
leaching materials from these piles and
creating a source of pollution; (c) ditching and
diversion of rainfall runoff for treatment prior
to discharge; and (d) the use of solid,
absorbent materials for cleaning up leaks and
drips as opposed to washing these materials
down a floor drain creating additional
sources of pollution. Although these best
management practices under (g](2) and (3)
would be required under the authority of
NRDC v. Costle, (Runoff Point Sources) 568
F.2d 1369 (D.C. Cir. 1977) they are similar to
those in (g)(l) and Subpart K of Part 125
imposed for toxic and hazardous materials
under section 304(e).]
(h) Requirements under section 405 of
the Act governing the disposal of
sewage sludge from publicly owned
treatment works, in accordance with
any applicable regulations.
(i) Where a permit is renewed or
reissued, interim limitations, standards,
or conditions which are at least as
stringent as the Final limitations,
standards or conditions in the previous
permit (unless the circumstances on
which the previous permit was based
have materially and substantially
changed since the time the permit was
issued and would constitute cause for
permit modification or revocation and
reissuance under § 122.31). Where
effluent limitations were imposed under
section 402(a)(l) of the Act in a
previously issued permit and these
limitations are more stringent than the
subsequently promulgated effluent
guidelines, this paragraph shall apply
unless:
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32908 Federal Register f Vol. 44, No. Ill f THnrsday, June 7, 1979 / Roles and Regulations
(1) The discharger has installed the
treatment facilities contemplated by the
discharger in connection with the
issuance of the previous permit and has
properly operated and maintained the
facilities but has nevertheless been
unable to achieve the previous effluent
limitations. In this case the limitations in
the reissued permit may reflect the level
of pollutant control actually achieved
(but shall not be less stringent that
required by the subsequently
promulgated effluent guidelines};
(2) In the case of an approved State,
State law prohibits permit conditions
more stringent than an applicable
effluent guideline; or
(3) The subsequently promulgated
effluent guidelines are based on best
conventional pollutant control
technology (section 301[b)(2)(E) of the
Act).
(j) In the case of a permit issued to a
facility that may operate at certain times
as a means of transportation over water,
a general condition that the discharge
shall comply with any applicable
regulations promulgated by the
Secretary of the Department in which
the Coast Guard is operating,
establishing specifications for safe
transportation, handling, carriage, and
storage of pollutants.
(k) Any conditions that the Secretary
of the Army considers necessary to
ensure that navigation and anchorage
will not be substantially impaired.
§ 122.16 Calculation and specification of
effluent limitations and standards.
(a)(l) All permits shall impose final,
and where necessary, interim final
effluent limitations, standards and
prohibitions under § § 122.14 and 122.15
for each outfall or discharge point of the
permitted facility, except as otherwise
provided under § 122.15(g)(2) and
§ 122.16(1).
(2) Except in the case of POTWs,
permit limitations, standards or
prohibitions shall be calculated based
on the actual production and not the
designed production capacity of the
facility where the promulgated effluent
guideline limitations and standards are
based on production.
[Comment- Where design capacity is not
representative of actual production, permit
limitations will be calculated to reflect a
reasonable measure of actual production.
such as the high month during the previoes
year, or the monthly average for the highest
year of the previous five years, for facilities
where such data is available. For new
sources, or new discharges, actual production
generally will be projected production based
on market data, and permit limitations may
require modification once actual prodaction
figures are available.]
(3} fa the case of POTWs, permit
limitations, standards, or prohibitions
shall be calculated based on design
flow.
(b) AH interim and final permit
effluent limitations, standards, or
prohibitions established under |§ 122.14
and 122.15 for a metal shall be
expressed in terms of the total metal
(i.e., the sum of the dissolved and
suspended fractions of the metal) unless:
(1) The promulgated effluent
limitation and standard under the Act
specifies the limitation for the metal in
the dissolved or valent form; or
(2) In establishing permit. limitations
on a case-by-case basis, it is necessary
to express the Limitation on the metal in
the dissolved or valent form in order to
carry out the provisions of the Act
(c) For continuous discharges all
interim and final permit effluent
limitations, standards, and prohibitions
established under §§122.14 and 122.15,
including those necessary to achieve
water quality standards, shall be stated
as maximum daily and average monthly
discharge limitations for all dischargers
other than publicly owned treatment
works, and average weekly and average
monthly discharge limitations for
POTWs.
For the purposes of this part:
(1) A "continuous discharge" means a
discharge which occurs without
interruption, except for infrequent
shutdowns for maintenance, process
changes, or other similar activities
throughout the operating hours of the
facility.
(2) The "maximum daily discharge" is
the total mass of a pollutant discharged
during the calendar day or, in the case-
of a pollutant limited in terms other than
mass pursuant to paragraph (d), the
average concentration or other
measurement of the pollutant specified
during the calendar day or any 24-hour
period that reasonably represents the
calendar day for the purposes of
sampling. The maximum daily discharge
limitation may not be violated during
any calendar day.
(3) The "average monthly discharge
limitation" is the total mass, and
concentration in the case of POTWs, of
all daily discharges sampled and/or
measured during a calendar month on
which daily discharges are sampled and
measured, divided by the number of
daily discharges sampled and/or
measured during such month. The
average monthly discharge limitation
may not be violated during any calendar
month.
(4) The "average weekly discharge
limitation" is the total mass and
concentration of all daily POTW
discharges during any calendar week on
which dairy discharges are sampled
and/or measured, divided by the
number of daily discharges sampled
and/or measured during such calendar
week. The average weekly discharge
limitation may not be violated during
any calendar week
[Comment: Calculations for all such
limitations which require averaging of
measurements or of daily discharges, shall
utilize an arithmetic mean average, unless
otherwise specified or approved by the
Director.]
(d) Paragraph (c) is not applicable:
(1) For pH, temperature, radiation or
other pollutants which cannot be
appropriately expressed by mass; or
(2) Where applicable promulgated
effluent guideline limitations, standards,
or prohibitions are expressed in other
terms than mass, e.g.. as concentration
levels. ;
te) Except as provided in paragraph
tf), effluent limitations imposed in
permits shall not be adjusted for
pollutants in the intake water.
ffjfl} Upon request of the discharger,
effluent limitations or standards
imposed in a permit will be calculated
on a "net" basis, i.e., adjusted to reflect
credit for pollutants in the discharger's
intake water, if the discharger
demonstrates that its intake water is
drawn from the same body of water into
which the discharge is made and if:
(i)(A) The applicable effluent
limitations and standards contained in
Subchapter N of this Chapter
specifically provide that they shall be
applied on a net basis; or
(B) The discharger demonstrates that
pollutants present in the intake water
will not be substantially removed by the
treatment systems operated by the
discharger; and
(ii) The permit contains conditions
requiring the permittee to conduct
additional monitoring (i.e., for flow and
concentration of pollutants) as
necessary to determine continued
eligibility for and compliance with any •-
such adjustments.
The discharger shall notify the Director
if this monitoring indicates that
eligibility for an adjustment under this
section has been altered or no longer
exists. In such case, the permit shall be
modified or revoked and reissued under
§122.31.
(2) Permit effluent limitations or
standards adjusted under this paragraph
shall be calculated on the basis of the
amount of pollutants present after any
treatment steps have been performed on
the intake water by or for the
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Federal Register / Vol 44, No. Ill / Thursday. June 7. 1979 / Rules and Regulations 32909
discharger. Adjustments under this
paragraph shall be given only to the
extent that pollutants in the intake
water which are limited in the permit
are not removed by the treatment
technology employed by the discharger.
In addition, effluent limitations or
standards shail not.be adjusted when
the pollutants in the intake water vary
physically, chemically or biologically
form the pollutants;limited by the
permit Nor shall effluent limitations or
standards be adjusted when the
discharger significantly increases
concentrations of pollutants in the
intake water, even though the total
amount of pollutants might remain the
same.
(g) Discharges which are not
continuous, as defined in paragraph (c),
shall be particularly described and
limited, considering the following
factors, as appropriate:
(1) Frequency (e.g., a batch discharge
shall not occur more than once every 3
weeks):
(2) Total mass (e.g., not to exceed 100
kilograms of zinc and 200 kilograms of
chromium per batch discharge);
(3) Maximum rate of discharge of
pollutants during the discharge (e.g., not
to exceed 2 kilograms of zinc per
minute); and
(4) Prohibition or limitation of
specified pollutants by mass,
concentration, or other appropriate
measure (e.g., shall not contain at any
time more than 0.1 mg/1 zinc or more
than 250 grams (Vi kilogram) of zinc in
any discharge).
(h) Where permit effluent limitations
or standards imposed at the point of
discharge are impractical or infeasible,
effluent limitations or standards for
discharges of pollutants may be imposed
on internal waste streams prior to
mixing with other waste streams or
cooling water streams. In such
instances, the monitoring required by
Subpart C shall also be applied to the
internal waste streams.
[Comment: Limits on internal waste streams
will only be imposed in exceptional
circumstances, such as where the final
discharge point is inaccessible (e.g., under 10
meters of water), where the wastes at the
point of discharge are so diluted as to make
monitoring impracticable, or where the
interferences among pollutants at the point of
discharge would make detection and/or
analysis impracticable.]
§ 122.17 Schedules of compliance.
(a) Permits shall contain schedules of
compliance requiring the permittee to
take specific steps where necessary to
achieve expeditious compliance with
applicable standards and limitations
and other requirements. Schedules of
compliance shall require compliance as
soon as possible, but in no case later
than an applicable statutory deadline.
(b) If any permit allows a time for
achieving final compliance which
exceeds 9 months from the date of
permit issuance, the schedule of
compliance in the permit shall set forth
interim requirements and the dates for
their achievement. Examples of interim
requirements include the following
events: submit complete Step 1
construction grant (for POTWs); let
contract (for nonPOTWs); commence
construction and complete construction.
(1) In no event shall more than 9
months elapse between dates specified
for interim requirements.
(2) If the time necessary for
completion of any interim requirements
(such as the construction of a treatment
facility) is more than nine months and is
not readily divisible into stages for
completion, the permit shall specify
interim dates not more than nine months
apart for the submission of reports of
progress toward completion of the
interim requirements.
(c) A permittee may terminate its
direct discharge by cessation of
operation or discharge to a POTW
rather than achieve applicable
standards and limitations by the final
date for compliance established in its
permit or in the Act under the following
circumstances:
(1) If the decision to terminate a direct
discharge is made after issuance of a
permit:
(i) The permit shall be modified or
revoked and reissued to contain a
schedule of compliance leading to
termination of the direct discharge by a
date which is no later than the statutory
deadline; or
(ii) The permittee shall terminate
direct discharge before ncncompliance
with any interim requirement specified
in the schedule of compliance in the
permit.
(2) If the decision to terminate a direct
discharge is made before issuance of the
permit, the permit shall contain a
schedule leading to termination of the
direct discharge by a date which is no
later than the statutory deadline.
(3) If the permittee contemplates but
has not made a final decision to
terminate the direct discharge before the
issuance of the permit, the permit shall
contain alternative schedules leading to
compliance as follows:
(i) The schedule shall contain an
interim requirement requiring such a
final decision no later than a date which
allows sufficient time to comply with
applicable limitations and'standards in
accordance with paragraph (c)(3)(ui) of
this section, (i.e., a milestone event for
commencement of construction of
control equipment); and
(ii) A subsequent schedule leading to
termination of the direct discharge by a
date which is no later than the statutory
deadline; and
(Hi} A subsequent alternative schedule
leading to compliance with applicable
standards and limitations, no later than
the statutory date; and
(iv) A requirement that after the
permittee has made a decision pursuant
to paragraph (c)(3)(i) of this section, it
shall:
(A) Follow the Schedule required by
paragraph (c)(3)(ii) of this section if the
decision is to terminate its discharge, or
(B) Follow the schedule required by
paragraph (c)(3)(iii) of this section if the
decision is not to terminate its
discharger; and
(4) If the permittee has made a
decision to terminate its direct discharge
in accordance with this section, it shall
post a bond within 30 days of permit
issuance, or the date of the decision, in
the amount of the cost of compliance
with applicable limitations and
standards, payable to the permit issuing
authority hi the event that termination
or compliance with applicable
limitations and standards is not
achieved by the statutory deadline or
the date set forth in the permit, if earlier.
(5) In all cases, the permittee's
decision to terminate its direct discharge
of pollutants shall be evidenced by a
Board of Directors resolution which has
been made public or by such other
means as EPA determines evidences a
firm public commitment
[Comment A permittee may evidence a firm
public commitment: (1) by a resolution of the
Board of Directors signed by the Chairman of
the Board and the Chief Executive Officer; (2)
in the case of a public facility, by appropriate
action by either the principal executive
officer or elected official or (3) as otherwise
appropriate for partnerships, sole
proprietorship, etc.]
(d) The Director may, upon request of
the applicant, modify a schedule of
compliance in an issued permit if he or
she determines good and valid cause
(such as an act of God, strike, flood,
materials shortage, or other events over
which the permittee has little or no
control or remedy) exists for such
modification under §122.31. In no case
shall the compliance schedule be
modified to extend beyond an
applicable statutory treatment deadline,
(e) In the case of a POTW which has
received a grant under section 202(a)(3)
of the Act to fund 100% of the costs to
modify or replace facilities construction
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
with a grant'for innovative and
alternative wastewater technology
under section 202(a)(2), the schedule of
compliance may be modified to reflect
the amount of time lost during
construction of the innovative and .
alternative facility. In no case shall the
compliance schedule be modified to
extend beyond an applicable statutory
deadline for compliance.
(f) New sources, new dischargers,
sources which recommence discharging
after terminating operations and those
sources which had been indirect
dischargers which commence
discharging into navigable waters do not
qualify for compliance schedules under
this section and are subject to
§ 122.47(d)(4).
Subpart C—Permit Compliance
§ 122.20 Monitoring.
(a) To assure compliance with permit
terms and conditions, all permittees
shall monitor as specified in the permit:
(1) The amount, concentration, or
other measurement specified in § 122.16
for each pollutant specified in the
permit;
(2) The volume of effluent discharged
from each point source; and
(3) As otherwise specifically required
in the permit, e.g., as required under
§ 122.16(g)(2).
(b) For purposes of paragraph (a), the
Director shall specify the following
monitoring requirements in the permit:
(1) Requirements concerning proper
installation, use, and maintenance of
monitoring equipment or methods
(including biological monitoring
methods where appropriate);
(2] Monitoring frequency, type, and
intervals sufficient to yield continuing
data representative of the volume of
effluent flow and the quantity of
pollutants discharged. Variable effluent
flows and pollutant quantities shall be
monitored at more frequent intervals
than relatively constant effluent flows
and pollutant quantities; and
(3) Test procedures for the analysis of ~~
pollutants meeting the requirements of
paragraph (c) of this section.
(c)(lj Test procedures identified in 40
CFR Part 136 shall be utilized for
pollutants or parameters listed in that
Part, unless an alternative test
procedure has been approved under that
Part.
(2) Where no test procedure under 40
CFR Part 136 has been approved, the
Director shall specify a test method in
the permit.
(3) Notwithstanding paragraph (c)(l}
of this section, the Director may specify
in a permit the test procedure used in
developing the data on which an
effluent limitations guideline was based,
or specified by the standards and
guidelines.
(4) Where a method approved under
40 CFR Part 136 for any pollutant or
parameter was used in developing the
applicable standards and limitations or
is specified by the standards and
limitations, the same method shall be
specified in the permit
(d) The sampling frequency and other
monitoring requirements specified by
the Director under paragraph (b)of this
section shall, to the extent applicable,
be consistent with monitoring
requirements specified in a standard or
effluent limitations guideline on which
the effluent limitations in the permit are
based.
(e) If the permittee believes that the
monitoring requirements specified by
the Director under paragraph (b) of this
section in any draft permit under
§ 124.31 are not sufficient to yield data
representative of the volume of effluent
flow and the quantity of pollutants
discharged, it should request that
additional monitoring requirements
sufficient to yield such data be included
in the final permit. Compliance with
effluent limitations contained in the
permit will be determined in accordance
with the monitoring requirements
specified in the permit which, when
finally effective, are deemed to yield
data representative of the volume of
effluent flow and the quantity of
pollutants discharged.
(f) The Act provides that any person
who falsifies, tampers with, or
knowingly renders inaccurate any
monitoring device or method required to
be maintained under this section shall,
upon conviction, be punished by a fine
of not more than $10,000 per violation, or
by imprisonment for not more than 6
months per violation, or by both.
§ 122.21 Recording of monitoring results.
(a) Any permittee required to monitor
under § 122.20 shall maintain records of
all monitoring information and
monitoring activities, including:
(1) The date, exact place and time of
sampling or measurements;
(2) The person(s) who performed the
sampling or measurements;
(3) The date(s) analyses were
performed;
(4) The person(s) who performed the
analyses;
(5) The analytical techniques or
methods used; and
(6) The results of such analyses.
(b) All records of monitoring activities'
and results (including all original strip
chart recordings for continuous -
monitoring instrumentation and
calibration and maintenance records)
shall be retained by the permittee for
three years. The three-year period shall
be extended: ,
~[1) Automatically during the course of
any unresolved litigation regarding the
discharge of pollutants by the permittee
or regarding promulgated effluent
guidelines applicable to the permittee, or
(2) As requested by the Director.
(c) The Act provides that any person
who knowingly makes any false
statement representation, or
certification in any record or other
document required to be maintained
under this section shall, upon
conviction, be punished by a fine of not
more than $10,000 per violation, or by
imprisonment for not more than six ..
months per violation, or by both.
§ 122.22 Reporting of monitoring results
and compliance by permittees.
(a) Permittees shall report to the
Director, using Discharge Monitoring
Reports, the results of any monitoring
specified by the permit This includes
reporting of the results of monitoring
required by § 122.20 to the Director, as
often as required by the permit, but in
no case less than once per year. Other
monitoring data not specifically required
hi the permit (such as internal process or
internal waste stream data) or data
collected by third parties need not be
submitted unless it indicates a violation,
but it shall be identified and referenced
as a supplement to the DMR.
[Comment: Reporting frequency depends
upon the nature and effect of the discharge.
For discharges such as small volume, non-
contact cooling water, annual report
submission may be sufficient Discharges
vvhich require more frequent reporting
include: variable discharges; discharges
which contribute significant amounts of
pollutants to the waters of the United States;
discharges which contain toxic or hazardous
pollutants or other pollutants of concern; and
discharges which apply new treatment or
control methods.]
(b) If the permittee monitors any
pollutant more frequently than required
by the permit using approved analytical
methods, the results of this monitoring
shall be reported in the DMR. For
purposes of this paragraph, "approved
analytical methods" are those test
procedures for the analysis of pollutants
which conform to 40 CFR 136 or are
specified in the permit
(c) Within 14 days after each interim
or final permit compliance schedule
date, the permittee shall provide the
Director with written notice of the
permittee's compliance or
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Federal Register / Vol. 44, No. Ill / Thursday. June 7. 1979 / Rules and Regulations 32911
noncompliance with the interim or final
requirements.
(d) The Act provides that any person
who knowingly makes any false
statement, representation, or
certification in the monitoring report or
notice of compliance shall, upon
conviction, be punished by a fine of not
more than $10,000 per violation, or by
imprisonment for not more than six .
months per violation, or by both.
§ 12&23 Noncompfiance reporting.
(a) On the last working day of
February, May, August, and November.
the State Director shall submit to the
Enforcement Division Director
information concerning noncompliance
with NPDES permit requirements by
major discharges in the State in
accordance with the reporting schedule
contained in paragraph (g). The
Enforcement Division Director shall
submit such information, and shall also
prepare and submit information for
EPA-issued permits, to the EPA Office of
Water Enforcement in accordance with
paragraph (g).
(b) The reports required by paragraph
(a) shall include the following
information:
(1) Failure to complete construction
elements. Noncompliance shall be
reported:
(i) When the permittee has failed to
complete by the date specified in the
permit, an element of the compliance
schedule (e.g., award of contract,
preliminary plans, begin construction or
attain operational level}; and
(ii) The permittee has not returned to
compliance by accomplishing the
requirements of the permit within 30
days from the date a report is due under
§ 122:22(c).
(2) Failure to complete or provide
compliance schedule reports.
Noncompliance shall be reported in the
following circumstances:
(i) When the permittee fails to
complete or provide a report required in
the permit compliance schedule or under.
§ 122.22 (e.g, progress reports or
notification of compliance or
noncompliance); and
(ii) The permittee has not returned to
compliance by submitting the report
'within 30 days from the date it is due
under § 122.22(c).
(3) Noncompliance with applicable
standards and limitations.
Noncompfiance shall be reported:
(i) When the permittee has violated an
applicable standard or limitation and
has not returned to compliance with the
NPDES permit requirements within 45
days from the date that the DMR or
notification of noncompliance under
§ 122.14{h) was due; or
(ii) When a pattern of noncompliance
with applicable standards or limitations
as determined by the Director exists for
any major discharger over a period of 12
months prior to the end of the current
reporting period. This pattern of
noncompliance is based on violation of
monthly averages and excludes
parameters where there is continuous
monitoring. A pattern of noncompliance
shall be reported whenever there is:
(A) Any violation of the same permit
or limitation or standard in two
consecutive quarters; and
(B) Any violation of one or more
permit limitations or standards in each
of four consecutive quarters; or
(iii) When, as determined by the
Director, a significant discharge of a
pollutant occurs, such as a discharge of
a toxic or hazardous substance.
(4) Failure to Report Effluent Data.
NoncompL'ance shall be reported where
the permittee has failed to provide a
DMR within 30 days of the date it is due
or where the permittee has exceeded
effluent limitations and has failed to
report this noncompliance.
(5) Deficient Reports. Noncompliance
shall be reported where the required
reports provided by the permittee are so
deficient as to cause misunderstanding
by the permit issuing authority and thus
impede the review of the status of
compliance.
(6) Modifications to schedules of
compliance under § 122.17(d).
Noncompliance resulting from or
constituting the basis for a modification
under § 122.17(d) shall be reported.
[Comment: Noncompliance reported under
paragraph (b) shall be reported in successive
reports until the noncompliance is resolved.
The resolution of noncompliance shall be
reported, and when the noncompliance is
reported as resolved, it will not appear in
subsequent reports.]
(c) The narrative information required
under paragraph (b) shall:
(1) Include the following data in the
following order.
(i) Name, location, and permit number
of each noncomplying permittee;
(ii) A brief description and date of
each instance of noncompliance;
{iii) The date(s) and a brief
description of the action(s) taken by the
Director to insure compliance;
(iv) Status of the instance of
noncompliance with the date of the
action or resolution;
(v) Any details which tend to explain
or mitigate an instance of
noncompliance; and
(2) Provide separate lists for non-
POTWs, POTWs, and Federal
permittees:
(3) Combine information concerning
schedule and effluent noncompliance in
a single entry for each permittee; and
(4) Alphabetize all narrative listings
by permittee name. Where two or more
permittees have the same name, the
lowest permit number shall govern the
order of entry, i.e., the lowest number
shall be entered first.
(d) Statistical information shall be
reported quarterly on all other instances
of noncompliance with permit
requirements by major dischargers not
'set forth in paragraph (b) of this section.
(e) For minor dischargers whose
compliance has been reviewed by the
permitting authority, statistical
information on the types of
noncompliance listed under paragraph
(b) of this section shall be reported
annually. In addition, a separate list of
minor dischargers which are one or
more years behind hi construction
phases of the compliance schedule shall
be submitted annually in alphabetical
order by name and permit number.
(f) Reporting schedules: [I] The
schedule for reporting noncompliance by
major dischargers under paragraphs (b),
(c), and (d) of this section shall be as
follows:
Quarters'
Dates lor
completion of
January, February, and March May 31.'
April. May. and June August 31 .*
July. August, and September November 30.'
October, November, and December February 28.*
1 Covered by reports on noncompliance by major
dischargers.
'Report made available to the pub*c on the date.
(2) The annual reporting period for
noncompliance by minor dischargers
under paragraph (e) of this section shall
end at the end of the Federal fiscal year
(currently September 30), with reports
completed and available to the public no
more than 60 days later.
(g) All reports prepared under this
section shall be made available to the
public for inspection and copying.
[Comment: The distinction between "major"
and "minor" dischargers is established in
EPA's annual operating guidance for the EPA
Regional Offices and the States.]
Subpart D—Permit Modification,
Revocation and Reissuance, and
Termination
§122.30 General
Permits shall be (a) modified, (b)
revoked and reissued, or (c) terminated
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32912 Federal Register / Vol. 44, No. Ill /Thursday, June 7, 1979 / Rules and Regulations
only as authorized in this Subpart, and
then only in conformance with
applicable provisions of Part 124.
§ 122.31 Modification, revocation and
reissuance, and termination.
(a) An issued permit may be modified
in whole or in part, revoked and
reissued, or terminated during its term
for cause as specified in this section.
(b) Permit modifications shall not be
used to extend the term of a permit
beyond 5 years from the original date of
issuance.
(c) Modification, revocation and
reissuance, or termination of an issued
permit may be initiated by the Director
under applicable provisions of Part 124.
Any interested person may request the
Director to modify, revoke and reissue,
or terminate an issued permit.
(d) Causes for modification,
revocation and reissuance, or
termination include the following:
(1) Violation of any term or condition
of the permit
(2) Failure of the permittee to disclose
fully all relevant facts or
misrepresentation of any relevant facts
by the permittee in the application or
during the permit issuance process;
(3) A change in any condition that
requires either a temporary or a
permanent reduction or elimination of
any discharge controlled by the permit
(e.g., plant closure, termination of
discharge by connection to a POTW, the
promulgation of any applicable effluent
standard or prohibition under section
307 of the Act, any change hi State law
that requires the reduction or
elimination of the discharge, etc.);
(4) Information indicating that the
permitted discharge poses a threat to
human health or welfare; or
(5) A change in ownership or control
of a source which has a permit, where
required by the Director in accordance
with § 122.12(d).
(e) In addition to the provisions of
paragraph (d) of this section, causes for
modification, or revocation and
reissuance, but not termination, of a
permit include the following:
(1) Material and substantial
alterations or additions to the
discharger's operation which were not
covered in the effective permit (e.g.,
production changes, relocation or
combination of discharge points,
changes in the nature or mix of products
produced), provided that such
alterations do not constitute total
replacement of the process or
production equipment causing the
discharge which converts it into a new
source;
[Comment: Certain reconstruction activities
may cause the new source provisions of
section.306 to become applicable to the
discharger. (See 1122.47.) In such cases the
new source permit issuance procedures of
5 124.12 should be followed rather than the
modification procedures of § 124.13.]
(2) The existence of a factor or factors
which, if properly and timely brought to
the attention of the Director, would have
justified the application of Limitations or
other requirements different from those
required by applicable standards or
limitations but only if the requester
shows that such factor or factors arose
after the final permit was issued;
(3) Revision, withdrawal, or
modification of water quality standards
or EPA promulgated effluent limitations
guidelines (including interim final
effluent limitations guidelines}, but only
v/hen:
(i) The permit term or condition
requested to be modified or revoked
was based on a promulgated effluent
limitations guideline or an EPA
approved or promulgated water quality
standards
(ii)(A) EPA has revised, withdrawn, or
modified that portion of the effluent
limitations guidelines on which the
permit term or condition was based; or
(B) EPA has approved a State actioff
with regard to a water quality standard
on which the permit term or condition
was based; and
(iii) A request for modification, or
revocation and reissuance, is filed in
accordance with § 124.13 (or applicable
State procedures meeting the
requirements of § 124.13) within ninety
(90) days after Federal Register notice
of:
(A} Revision, withdrawal, or
modification of that portion of the
effluent limitations guidelines; or
(B) EPA approval of State action
regarding a water quality standard;
(4) Judicial remand of EPA
promulgated effluent limitations
guidelines, if the Demand concerns that
portion of the guidelines on which the
permit term or condition was based and
the request is filed within ninety (90)
days of the judicial remand;
(5) Any modification, or revocation
and reissuance of permits specifically
authorized by the Act, e.g., sections
301(c), 301(g), 301(h), 301(i) or 301(k);
(6) As necessary under § § 122.14(d),
122.15{b) and 122.17 (c) and (e); or
(7) Failure of an approved State to
notify anoiher State whose waters may
be affected by the discharge'from the
approved State, as required by section
402(b)(3) of the Act.
(f) The following permit modifications
shall not require public notice and
opportunity for hearing under Part 124
unlesslhey would render the applicable
standards and limitations hi the permit
less stringent, or unless contested by the
permittee: -.-•-•
(1) Correction of typographical errors;
(2) A change requiring more frequent -
monitoring or reporting by the permittee;
(3) A change hi an interim compliance
date, but not beyond 120 days and not
where the change would interfere with
the attainment of a final compliance
date;
(4) A change in ownership or control
of a source which has a permit where no
other change hi the permit is necessary
and where transfer is accomplished in
accordance with § 122.12(d);
(5) A change in the construction
schedule for a discharger which is a new
source. No such change shall affect a
discharger's obligation to have all
pollution control equipment installed
and hi operation prior to discharge
under § 122.47(d}(4); and
(6) Deletion of a point source outfall,
where the discharge from that outfall is
terminated and does not result in
discharge of pollutants from other
outfalls except in accordance with
permit limits.
Subpart E—Special NPDES Programs
§122.40 General
The following sections described
NPDES program coverage for certain
categories of point source dischargers.
§ 122.41 Disposal of pollutants into wells,
into publicly owned treatment works, or by
land application.
(a) Where part of a discharger's
process waste water is not being
discharged into waters of the United
States or contiguous zone because it is
dis'posed into a well, into a POTW, or by
land application thereby reducing the
flow or level of pollutants being
discharged into waters of the United
States, applicable effluent limitations
and standards for the discharge hi the
permit shall be adjusted to reflect the
reduced raw waste resulting from such
disposal. Effluent limitations and
standards in the permit shall be
calculated by one of the following "
methods:
(1) If none of the waste from a
particular process is discharged into
waters of the United States, and effluent
limitations guidelines provide separate
allocation for wastes from that process,
all allocations for the process shall be
eliminated from calculation of permit
effluent limitations or standards;
(2) In all cases other than those
described in paragraph (1), effluent
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32913
limitations shall be adjusted by
multiplying the effhient limitation
derived by applying effluent guidelines
to the total waste stream by the amount
of wastewater flow to be treated and
discharged into waters of the United
States, and dividing the result by the
total wastewater floiw. Effluent
limitations and standards so calculated
may be further adjusted under Part 125,
Subpart D to make them more stringent
if dischargers to wells, publicly owned
treatment works, or by land application
change the character or treatability of
the pollutants being discharged to
receiving waters.
[Comments This method may be algebraically
expressed as:
P = E X N / T; where P is the permit effluent
limitation, E is the limitation derived by
applying effluent guidelines to the total waste
stream, N is the wastewater flow to be
treated and discharged to waters of the
United States, and T is the total wastewater
flow.]
(b) Paragraph (a) shall not apply
where promulgated effluent limitations
guidelines:
(1) Control concentrations of
pollutants discharged, but not mass; or
(2) Specify a different specific
technique for adjusting effluent
limitations to account for well injection.
(c) Paragraph (a) does not alter a
discharger's obligation to meet any more
stringent requirements established
under §§ 122.14 and 122.15.
§. 122.42 Concentrated animal feeding
operations.
(a) Concentrated animal feeding
operations are point sources subject to
the NPDES permit program.
(b) Definitions.
(1) "Animal feeding operation" means
a lot or facility (other than an aquatic
animal production facility) where the
following conditions are met:
(i) Animals (other than aquatic
animals) have been, are, or will be,
stabled or confined and fed or
maintained for a total of 45 days or more
in any 12-month period, and
(ii) Crops, vegetation, forage growth or
post-harvest residues are not sustained
in the normal growing season over any
portion of the lot or facility.
Two or more animal feeding operations
under common ownership are
considered, for the purposes of these
regulations, to be a single animal
feeding operation if they adjoin each
other or if they use a common area or
system for the disposal of wastes.
(2) "Concentrated animal feeding
operation" means an animal feeding
operation which meets the criteria set
forth in paragraphs (b)(2) (i), (ii), or (iii)
of this section:
(i) More than the numbers of animals
specified in any of the following
categories are confined:
(A) 1,000 slaughter and feeder cattle,
(B) 700 mature dairy cattle (whether
milked or dry cows),
(C) 2,500 swine each weighing over 25
kilograms (approximately 55 pounds),
(D) 500 horses,
(E) 10,000 sheep or lambs,
(F) 55,000 turkeys.
(G) 100,000 laying hens or broilers (if
the facility has a"continuous overflow
watering),
(H) 30,000 laying hens or broilers (if
the facility has a liquid manure system),
(I) 5,000 ducks, or
(J) 1,000 animal units; or
(ii) More than the following numbers
and types of animals are confined:
(A) 300 slaughter or feeder cattle,
(B) 200 mature dairy cattle (whether
milked or dry cows),
(C) 750 swine each weighing over 25
kilograms (approximately 55 pounds),
(D) 150 horses.
(E) 3,000 sheep or lamb,
(F) 16,500 turkeys,
(G) 30,000 laying hens or broilers (if
the facility has continuous overflow
watering),
(H) 9,000 laying hens or broilers (if the
facility has a liquid manurejiandling
system),
(I) 1,500 ducks, or
(J) 300 animal units;
and either one of the following
conditions are met: pollutants are
discharged into waters of the United ~
States through a man-made ditch,
flushing system, or other similar man-
made device; or pollutants are
discharged directly into navigable
waters which originate outside of and
pass over, across, or through the facility
or otherwise come into direct contact
with the animals confined in the
operation. Provided, however, that no
animal feeding operation is a
concentrated animal feeding operation
as defined above if such animal feeding
operation discharges only in the event of
a 25 year, 24 hour storm event.
{iii) The Director determines that the
operation is a significant contributor of
pollution to waters of the United States,
in accordance with paragraph (c).
(3) The term "animal unit" means a
unit of measurement for any animal
feeding operation calculated by adding
the following numbers: the number of
slaughter and feeder cattle multiplied by
1.0, plus the number of mature dairy
cattle multiplied by 1.4, plus the number
of swine weighing over 25 kilograms
(approximately 55 pounds), multiplied
by 0.4, plus the number of sheep
multiplied by 0.1, plus the number of
horses multiplied by 2.0.
(4) The term "man-made" means
constructed by man and used for the
purpose of transporting wastes.
(c) Case-by-case designation of
concentrated animal feeding operations.
(1) Notwithstanding any other
provision of this section, any animal
feeding operation may be designated as
a concentrated animal feeding operation
where it is determined to be a
significant contributor of pollution to the
waters of the United States. In making
this designation the Director shall
consider the following factors:
(i) The size of the animal feeding
operation and the amount of wastes
reaching waters of the United States;
(ii) The location of the animal feeding
operation relative to waters of the
United States;
{iii) The means of conveyance of
animal wastes and process waste
waters into waters of the United States;
(iv) The slope, vegetation, rainfall, and
other factors affecting the likelihood or
frequency of discharge of animal wastes
and process wastewaters into waters of
the United States; and
(v) Other such factors relative to the
significance of the pollution problem
sought to be regulated.
(2) No animal feeding operation with
less than the numbers of animals set
forth in paragraphs (b)(2) (i) and (ii) of
this section designated as a
concentrated animal feeding operation
unless:
(i) Pollutants are discharged into
waters of the United States through a
man-made ditch, flushing system, or
other similar man-made device; or
(ii) Pollutants are discharged directly
into waters of the United States which
originate outside of the facility and pass
over, across, through the facility or
otherwise come into direct contact with
the animals confined hi the operation.
(3) In no case shall a permit
application be required from a
concentrated annual feeding operation
designated under this paragraph until
there has been an onsite inspection of
the operation and a determination that
the operation should and could be
regulated unde'r the permit program.
§ 122.43 Concentrated aquatic animal
production facilities.
(a) Concentrated aquatic animal
production facilities, as defined in this
section, are point sources subject to the
NPDES permit program.
(b) Definitions. (1) "Concentrated
aquatic animal production facility"
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32914 Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations
means a hatchery, fish farm, or other
facility which contains, grows, or holds:
(i) Cold water fish species or other
cold water aquatic animals in ponds,
raceways, or other similar structures
which discharge at least 30 days per
year but does not include:
(A) Facilities which produce less than
9,090 harvest weight kilograms
(approximately 20,000 pounds) of
aquatic animals per year, and
(B) Facilities which feed less than
2,272 kilograms (approximately 5,000
pounds) of food during the calendar
month of maximum feeding.
(ii) Warm water fish species or other
warm water aquatic animals in ponds,
raceways or other similar structures
which discharge at least 30 days per
year, but does not include:
(A) Closed ponds which discharge
only during periods of excess runoff; or
(B) Facilities which produce less than
45,454 harvest weight kilograms
(approximately 100,000 pounds) of
aquatic animals per year.
(2) "Cold water aquatic animals'*
include, but are not limited to, the
Salmonidae family of fish, e.g., trout and
salmon.
(3) "Warm water aquatic animals"
include, but are not limited to, the
Ameiuride, Centrarchidae and
Cyprinidae families of fish, e.g,
respectively catfish, sunfish, and
minnows.
(c) Case-by-case designation of
concentrated aquatic animal production
facilities. Any warm or cold water
aquatic animal production facility not
otherwise falling within the definitions
provided in paragraph (b) may be
designated as a concentrated aquatic
animal production facility where the
facility is determined to be a significant
contributor of pollution to waters of the
United States. In making this
designation the Director shall consider
the following factors:
(1) The location and quality of the
receiving waters of the Unites States;
(2) The holding, feeding, and
production capacities of the facility;
(3) The quantity and nature of the
pollutants reaching waters of the United
States; and
(4) Other such factors relating to the
significance of the pollution problem
sought to be regulated.
In no case shall a permit application be
required from a concentrated aquatic
animal production facility designated
under this paragraph until there has
been an on-site inspection of the facility
and a determination that the facility
should and could be regulated under the
permit program.
" § 122.44 Aquaculture projects
(a) Discharges into aquaculrure
projects, as defined in this section, are
subject to the NPDES permit program
through section 318 of the Act, and in
accordance with Part 125, Subpart B.
(b) Definitions. (1) "Aquaculture
project" means a defined managed
water area which uses discharges of
pollutants into that designated area for
the maintenance or production of
harvestable freshwater, estuarine, or
marine plants or animals.
(2) "Designated project area" means
the portions of the waters of the United
States within which the applicant for a
permit plans to confine the cultivated
species, using a method or plan or
operation (including, but not limited to
physical confinement) which, on the
basis of reliable scientific evidence, is
expected to ensure that specific
individual organisms comprising an
aquaculrure crop will enjoy increased
growth attributable to the discharge of
pollutants permitted under this section
and be harvested within a defined
geographic area.
§ 122.45 Separate storm sewers.
(a) Separate storm sewers, as defined
in this section, are point sources subject
to the NPDES permit program. Separate
storm sewers may be covered either
under individual NPDES permits or
under the general permit program (see
§ 122.48).
(b) Definition. "Separate storm sewer"
means a conveyance or system of
conveyances (including but not limited
to pipes, conduits, ditches, and
channels) primarily used for collecting
and conveying storm water runoff and
either:
(1) Located in an urbanized area as
designed by the Bureau of Census
according to the criteria in 39 FR15202
(May 1,1974); or
(2) Not located in an urbanized area
but designated as a significant
contributor of pollution under paragraph
(c).
"Separate storm sewer" does not
include any conveyance which
discharges process wastewater or storm
water runoff contaminated by contact
with wastes, raw materials, or pollutant-
contaminated soil, from lands or
facilities used for industrial or
commercial activities, into waters of the
United States or into separate storm
sewers. Such discharges are subject to
the general provision of this Part.
[Comment: Whether or not a system of
conveyances is or is not a separate storm
sewer for purposes of this Part shall have no
bearing on whether or not the system is
eligible for funding under Title n of the Act,
see 40 CFR § 35.925-21.]
(c) Case-by-case designation of
separate Btonn sewers. The Director
may designate a storm sewer not
located in an urbanized area as a
separate storm sewer. This designation
may be made to the extent allowed or
required by EPA promulgated effluent
guidelines for point sources in the
separate storm sewer category or when:
(1) A Water Quality Management plan
under section 208 of the Act, which
contains requirements applicable to
such point sources is approved; or
(2) A storm sewer is determined to be
a significant contributor of pollution to
the waters of the United States. In
making this determination the following
factors shall be considered:
(i) The location of the storm sewer
with respect to waters of the United
States:
(ii) The size of the storm sewer;
(iii) The quantity and nature of the
pollutants reaching waters of the United
States; and
(iv) Other such factors relating to the
significance of the pollution problems
sought to be regulated.
[Comment An NPDES permit for discharges
into waters of the United States from a
separate storm sewer covers all conveyances
which are a part of that separate storm sewer
system, even though there may be several
owners-operators of such conveyances.
However, discharges into separate storm
sewers from point sources which are not part
of the separate storm sewer systems may
also require a permit]
§122.46 snvteufturai activities.
(a) Silvicultural point sources, as
defined in this section, are point sources
subject to the NPDES permit program.
(b) Definitions. (1) "Silvicultural point
source" means any discernible,
confined, and discrete conveyance
related to rock crushing, gravel washing,
log sorting, or log storage facilities
which are operated in connection with
Silvicultural activities and from which
pollutants are discharged into waters of
the United States.
[Comment: The term does not include non-
point source Silvicultural activities such as
nursery operations, site preparation,
reforestation, and subsequent cultural
treatment thinning, prescribed burning, pest
and fire control, harvesting operations,
surface drainage, and road construction and
maintenance from which there is runoff
. during precipitation events. However, some
of these activities (such as stream crossing
for roads) may involve point source
discharges of dredged or fill material which
may require a section 404 permit (see 33 CFR
S 209.120).]
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Federal Register / Vol. 44. No. Ill / Thursday, June 7, 1979 / Rules and Regulations
32915
(2) "Rock crushing and gravel washing
facilities" means facilities which
process crushed and broken stone,
gravel and riprap (see 40 CFR Part 436,
Subpart B, and the effluent limitations
guidelines pursuant thereto).
(3) "Log sorting and log storage
facilities" means facilities whose
discharges result from the holding of
unprocessed woodl i.e. logs or
Toundwood with bark or after removal
of bark in self-contained bodies of water
(rail! ponds or log ponds) or stored on
land where water is applied
intentionally on the logs (wet decking).
(See 40 CFR Part 429. Subpart J, and the
effluent limitations guidelines pursuant
thereto.)
§ 122.47 New sources and new
dischargers.
(a) Definitions. (1) "New source" and
"new discharger" are defined in § 122.3
(u) and (v).
(2) "Source" means any building,
structure, facility, or installation from
which there is or may be a discharge of
pollutants;
(3) "Existing source" means any
source which is not a new source or a
new discharger;
(4) "Site" means the land or water
area upon which a source and its water
pollution control facilities are physically
located, including but not limited to
adjacent land used for utility systems,
repair, storage, shipping or processing
areas, or other areas incident to the
industrial, manufacturing, or water
pollution treatment processes.
(5) "Facilities or equipment" means
buildings, structures, process or
production equipment or machinery
which form a permanent part of the new
source and which will be used in its
operation, provided that such facilities
or equipment are of such value as to
represent a substantial commitment to
construct. It does not include facilities or
equipment used hi connection with
feasibility, engineering, and design
studies regarding the source or water
pollution treatment for the source.
(b) Criteria and standards for new
source determination. (1) The following
construction activities result in a new
source as defined in § 122.3.
(i) Construction of a source on a site
where another source is not located, or
(ii) Construction of a source on a site
where another source is located,
provided that the process or production
equipment which causes the discharge
of pollutants from the other source is
totally replaced by this construction or
the construction results in a new or
additional discharge.
[Comment: The fact that a source is
constructed on a site so that it shares or uses
common land or water areas of another
source for utility systems, repair, storage, or
shipping does not prevent that source from
being considered a new source.]
(2) The modification of an existing
source by changing existing process or
production equipment, replacing existing
process or production equipment (except
as provided in paragraph (b)(l)), or by
the addition of such equipment on the
site of the existing source which results
in a change in the nature or quantity of
pollutants discharged is not a new
source under this section,. Modifications
of this nature are subject to the
provisions of § 122.31(e)(2).
(3) Construction of a new source as
defined under § 122.3(v) has commenced
if the owner or operator has:
(i) Begun, or caused to begin as part of
a continuous on-site construction
program:
(A) Any placement, assembly, or
installation of facilities or equipment;
(B) Significant site preparation work
including clearing, excavation, or
removal of existing buildings, structures,
or facilities which is necessary for the
placement, assembly, or installation of
new source facilities or equipment; or
(ii) Entered a binding contractual
obligation for the purchase of facilities
or equipment which is intended to be
used hi its operation within a
reasonable time. Options to purchase or
contracts which can be terminated or
modified without substantial loss, and
contracts for feasibility, engineering,
and design studies do not constitute a
contractual obligation under this
paragraph.
(c) Requirement of an Environmental
Impact Statement. (1) The issuance of a
permit to a new source:
(i) By EPA may be a major Federal
action significantly affecting the quality
of the human environment within the
meaning of the National Environmental
Policy Act of 1969 (NEPA), 33 U.S.C.
4321 et seq. and is subject to the
environmental review provisions of
NEPA as set out in 40 CFR 6, Subpart I.
EPA will determine whether an
Environmental Impact Statement (EIS) is
required under § 124.12 and 40 CFR 6,
Subpart I;
(ii) By an NPDES-approved State is
not a Federal action and therefore does
not require EPA to conduct an
environmental review.
(2) The EIS shall include a
recommendation on whether the permit
is to be issued or denied.
(i) If the recommendation is to deny
the permit, the final EIS shall contain
the reasons for the recommendation and
list those measures, if any, which the
applicant could take to cause the
recommendation to be changed;
(ii) If the recommendation is to issue
the permit, the final EIS shall
recommend the actions which the
permittee should take to prevent or
minimize any adverse environmental
impacts;
(3) The Regional Administrator shall
issue or deny the new source NPDES
permit following a complete evaluation
of any significant beneficial and adverse
environmental impacts and a review of
the recommendations contained in the
EIS.
(4)(i) No on-site construction of a new
source for which an EIS is required shall
commence before issuance of a final
permit incorporating appropriate EIS-
related requirements, or before
execution by the applicant of a legally
binding written agreement which
requires compliance with all such
requirements, unless such construction
is determined by the Regional
Administrator not to cause significant
adverse environmental impact.
(ii) No on-site construction of a new
source for which no EIS is required shall
commence before 15 days following
issuance of a finding of no significant
impact, unless the new source requests
permission to construct and the Regional
Administrator determines that a finding
of no significant impact will probably be
made.
(5) The permit applicant must notify
the Regional Administrator of any on-
site construction which begins before
the times specified in paragraph (c)(4) of
this section. If on-site construction
begins in violation of this paragraph, the
Regional Administrator shall advise the
owner or operator that it is proceeding
with construction at its own risk, and
that such construction activities
constitute grounds for denial of a permit.
The Regional Administrator may seek a
court order to enjoin construction in
violation of this paragraph.
(d) Effect of compliance with new
source performance standards. (1)
Except as provided in paragraph (d)(2),
any new discharger on which
construction commenced after October
18,1972, or any new source, which
meets the applicable promulgated new
source performance standards before
the commencement of discharge, shall
not be subject to any more stringent new
source performance standards, or to any
more stringent technology-based
standards under section 301(b)[2) of the
Act for the shortest of the following
periods:
(i) Ten years from the date that
construction is completed; ^-
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32916 Federal Register / VoL 44. No. Ill / Thursday, June 7, 1979 / Rules and Regulations
(ii) Ten years from the date the source
begins to discharge process or other
non-construction related wastewater, or
(iii] The period of depreciation or
amortization of the facility for the
purposes of section 167 or 169 (or both]
of the Internal Revenue Code of 1954.
[Comment: The provisions of this paragraph
do not apply to existing sources which
modify their pollution control facilities or
construct new pollution control facilities and
achieve performance standards, but which
, are neither new sources nor new dischargers
or otherwise do not meet the requirements of
this paragraph.]
(2) The protection from more stringent
standards of performance afforded by
paragraph (d)(l) of this section does not
apply to:
(^'Additional or more stringent permit
conditions which are not technology
based, e.g., conditions based on water ,
quality standards, or effluent standards
or prohibitions under section 307(a); and
(ii] Additional permit conditions
controlling pollutants listed as toxic
under section 307(a) of the Act or as
hazardous substances under section 311
of the act and which are not controlled
by new source performance standards.
This includes permit conditions
controlling pollutants other than those
identified as toxic or hazardous where
control of those other pollutants has
been specifically identified as the
method to control the toxic or hazardous
pollutant.
(3) Where an NPDES permit issued to
a source enjoying a "protection period"
under paragraph (d)(l), will expire on or
before the expiration of the protection
period, such permit shall require the
owner or operator of the source to be in
compliance with the requirements of
section 301 and any other than
applicable requirements of the act
immediately upon the expiration of the
protection period. No additional period
for achieving compliance with these
requirements shall be allowed.
(4) The owner or operator of a new
source, a new discharger, a source
recommencing discharge after
terminating operations, or a source
which had been an indirect discharger
which commences discharging into
navigable waters shall install and have
in operating condition, and shall "start-
up" all pollution control equipment
required to meet the terms and
conditions of its permits before
beginning to discharge. Within the
shortest feasible time (not to exceed 90
days), the owner or operator must meet
all permit terms and conditions.
(5) After the effective date of new
source performance standards, in
accordance with section 306(e), it shall
be unlawful for any owner or operator
of any new source to operate such
source in violation of those standards
applicable to such source.
§ 122.48 General permit program.
(a) Definitions. (1) The term "separate
storm sewer" is defined in § 122.45.
(2) The term "general permit program
area" ("GPPA") means any area so
designated under paragraph (c) of this
section in which all owners or operators
of separate storm sewers or other
categories of point sources are subject
to the same general permit, other than
owners or operators of such sources to
whom individual NPDES permits have
been issued.
[Comment: All draft general permits for point
sources other than separate storm sewers
must be sent to the EPA Deputy Assistant
Administrator for Water Enforcement during
the public comment period for a 90-day
review. If the draft general permit does not
meet the criteria of §122.48(bX2), the EPA
Deputy Assistant Administrator may object
to the issuance of the general permit within
those 90 days. See § 123.12(a)(14) and
(3) The term "general permit" means
an authorization to discharge which,
(i) Where issued by EPA, is published
in the Federal Register or.
(ii) Where issued by a State,
published in accordance with applicable
State procedures, and
(iii) Is applicable to all owners and
operators of separate storm sewers or
other categories of point sources in a
designated GPPA, other than owners
and operators of such sources to whom
individual NPDES permits have been
issued.
(b) The Director may regulate the
following discharges under general
permits:
(1) Separate Storm sewers; and
(2) Such other categories of point
sources if there are a number of minor
point sources operating in a
geographical area that:
(i) Involve the same or substantially
similar types of operations;
(ii) Discharge the same types of
wastes;-
(iii) Would require the same effluent
limitations or operating conditions;
(iv) Would require the same similar
monitoring requirements; and
(v) In the opinion of the director, would
be more appropriately controlled under
a general permit than under an
individual NPDES permit.
(c) Each general permit shall be
applicable to a class or category of
dischargers meeting the criteria of
paragraph (b) within a GPPA designated
by the Director.
(1) The GPPA shall correspond with
existing geographic or political
boundaries such as:
(i) Designated planning areas under
sections 208 and 303 of the Act;
(ii) Sewer districts or sewer
authorities;
(iii) City, county or State political
boundaries;
(iv) State highway systems;
(v) Standard metropolitan statistical
areas as defined by the Office of
Management and Budget;
(vi) Urbanized areas as defined by the
Bureau of Census (see § 122.45(b)(l)); or
(vii) Any other appropriate divisions
or combinations of the above
boundaries which will encompass the
sources subject to the same general
permit
(2) Any designation of any GPPA is
subject to review by the Director at the
expiration of the general permit for the
GPPA. or if individual permits have
been issued to all the owners and
operators in the categories of point
sources within the GPPA, or as
necessary to address water quality
problems effectively.
(3) General permits shall be issued in
accordance with the applicable
requirements of Part 124.
[Comment: The permit issuing authority is
encouraged to provide as much actual notice
of the draft general permit to the permitees as
possible. This notice would be in addition to
the public notice requirements in § 124.41(1)
and could include notice in trade association
journals and newsletters.]
(d) Scope of General Permits. (1) Each
general permit shall cover all owners
and operators of separate storm sewers
or other designated categories of point
sources in the GPPA for which the
general permit is issued, except:
(i) As provided in paragraph (e); and
(ii) Owners and operators of separate
storm sewers or other categories of
point sources, who are already subject
to individual NPDES permits prior to the
effective date of the general permit;
(2)(i) All sources not excluded from
general permit coverage for these
reasons are permittees subject to the
terms and conditions of the general
permit.
(ii] Source excluded from general
permit coverage solely because they
already have an individual NPDES
permit may request that the individual
permit be revoked, and that they be
covered by the general permit. Upon
revocation of the individual NPDES
permit, the general permit shall apply to
such point source.
(e) Case-by-case designation. (1)
Under § 124.14, the Director may revoke
a general permit as it applies to any
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Federal Register / Vol. 44. No. Ill / Thursday, June 7. 1979 / Rules and Regulations 32917
person and require such person to apply
for and obtain an individual NPDES
permit. Interested persons may petition
the Director to take action under this
paragraph if one of the six cases listed
below occurs. Cases where individual
NPDES permits may be required include
the following: j
(i) The covered discharge(s) is a
significant contributor of pollution;
(ii) The discharger is not hi
compliance with the terms and
conditions of the general permit;
(iii) A change has occurred hi the
availability of demonstrated technology
or practices for the control or abatement
of pollutants from the covered point
source;
(iv) Effluent limitations guidelines are
subsequently promulgated for point '
sources covered by the general permit;
(v) A Water Quality Management plan
containing requirements applicable to
such point source is approved; or
(vi) The requirements of paragraph
(b)(2)(i) through (iv) are not met.
(2) Where EPA is the permit issuing
authority, the Regional Administrator
may revoke a general permit as it
applies to any person and require such
person to apply for an individual NPDES
permit if:
(i) There has been an on-site
inspection of the facility and a
determination that the point source
should and could be regulated under an
individual permit; and
(ii) The owner or operator has been
notified in writing of the revocation of
the general permit and that a permit
application is required. This notice shall
include an application form, a statement
that the owner or operator has sixty
days from receipt of notice to file the
application, and a statement that the
general permit no longer authorizes the
owner or operator to discharge
pollutants.
(3) Any owner or operator subject to a
general permit may request to be
excluded from the coverage of the
general permit by applying for an
individual permit The owner or
operator shall submit such application,
with reasons supporting the request, to
the Director no later than ninety days
after the publication by EPA of the
general permit in the Federal Register or
the publication by the State in
accordance with applicable State law.
All such requests shall be granted by
issuance of any individual permit if the
reasons cited by the owner or operator
are adequate to support the request.
(4) Where an individual NPDES
permit is issued to an owner or operator
otherwise subject to a general permit,
the general permit as it applies to the
individual NPDES permittee is
automatically revoked on the effective
date of the individual permit.
(5) Any owner or operator applying
for an individual NPDES permit under
this paragraph is subject to the
procedures set forth hi Part 124.
§ 122.49 Special considerations under
Federal law.
Under section 301(b)(l){C) of the Act,
permits shall be consistent with and
reflect requirements under applicable
Federal laws other than the Act, and to
the extent authorized by law,
requirements under Executive Orders.
For permits issued by the Regional
Administrators, such Federal
requirements include but are not limited
to the following:
(a) Executive order 11990 (Protection
of Wetlands).
(b) Executive Order 11988
(Preservation of Floodplains).
(c) Sections 3, 4, and 5 of the Wild and
Scenic Rivers Act, 16 U.S.C. 1273 et seq.
(d) The National Historic Preservation
Act of 1966, 42 U.S.C. 4321 et seq. (and
the related Executive Order 11593).
(e) The Land and Water Conservation
Act, 16 U.S.C. 460, et seq.
(f) Section 7 of the endangered
Species Act, 16 U.S.C 1531 et seq.
(g) Section 307 of the Coastal Zone
Management Act, 16 U.S.C. 1451 et seq.
[Comment: NPDES permits must be *~
consistent with approved coastal zone
management plans by virtue of sections
307(c)(3}(A) (Federally issued permits) and
307(c)(l) (approval and oversight of State
permit programs).]
(h) The Solid Waste Disposal Act, as
amended by the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. 6901
et seq.
(i) The Safe Drinking Water Act, 42
U.S.C. 300f et seq.
• 0) The Marine Protection, Research,
and Sanctuaries Act (the Ocean
Dumping Act), 33 U.S.C. 1401 et seq.
(k) The Surface Mining Control and
Reclamation Act of 1977, 30 U.S.C. 1201
et seq.
(1) The Fish and Wildlife Coordination
Act, 16 U.S.C. 661 et seq.
Subpart F—Miscellaneous
§ 122.60 Delegation of authority.
Subject to the appeal provisions of
Part 124, the following authorities are
hereby delegated to each of the Regional
Administrators for the Region hi which
they are located:
(a) The authority to issue, condition.
revoke, modify, deny, monitor, and
enforce permits for discharges regulated
by the NPDES program under sections
318, 402 and 405 of the Act.
(b) The authority to receive permit
applications and related documents
from States and to object in writing to
the issuance of permits under section
402(d)(2) of the Act or (if such permits
are outside the guidelines and
requirements of the Act) under sections
402(d) (1), (2) and (4) of the Act.
(c) The authority under section 403(c)
of the Act to issue permits under section
402 of the Act for a discharge into the
territorial sea, the contiguous zone, or
the oceans before the promulgation of
guidelines under section 403(c) of the
Act, including the determination that
issuance is in the public interest.
(d) The authority granted to the
Administrator by sections 308(a) and
308(b) of the Act.
(e) The authority to grant variances
granted to the Administrator under
sections 301(c). 301(g), and 316(a) of the
Act.
(f) The authority to grant time
extensions of statutory compliance
dates under sections 301(i) and 301(k) of
the Act.
(g) The authority to establish water-
quality-related effluent limitations under
section 302 of the Act
(h) These authorities may be
redelegated to the Enforcement Division
Director of each Region. Permit issuance
authority may not be redelegated below
the Enforcement Division Director.
Appendix A—Point Source Categories and Permit
Expiration Dates
Point source category
Permit expiration dates
Aluminum Forming _„
Auto & Other Laundries „.,...
Battery Manufacturing :_
Coa! Mining
Co9 Coating „_
Electric & Electronic Components..-
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December 31 1980
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June 30, 1961.
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March 31 1981
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32918 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
5. A new Part 123 is added as follows:
PART 123—STATE PERMIT PROGRAM
REQUIREMENTS
SubpartA—General
Sec.
123.1 Purpose and scope.
123.2 Definitions.
123.3 Elements of a program submission.
123.4 Program description.
123.5 Memorandum of Agreement with the
Secretary for section 404 programs.
123.6 Attorney General's Statement.
123.7 Memorandum of Agreement with the
Regional Administrator.
123.8 Sharing of information.
Subpart B—Requirements of State
Programs
123.11 Requirement to obtain a permit.
123.12 Operational requirements.
123.13 Control of disposal of pollutants into
wells.
123.14- Inspections, monitoring, entry, and
reporting.
Subpart C—Transfer of Information,
Objections to Permits
123.21 Receipt and use of Federal
information.
123.22 Transmission of information to EPA.
123.23 Objections to proposed NPDES
^permits.
123724 Prohibitions.
Subpart D—Enforcement Provisions
123.31 Compliance evaluation programs. •
123.32 Enforcement
Subpart E—Planning and Conflict of
Interest Requirements
123.41 Continuing planning process.
123.42 Agency board membership.
Subpart f—Procedures for Approval of
State Permit Programs
123.51 Section 402 approval process.
123.52 Section 404 approval process.
Subpart G—Revisions to Approved
Programs
123.61 Procedure for revision of State permit
programs.
123.62 NPDES program revisions under the
Clean Water Act of 1977.
Authority: Clean Water Act, as amended
by the Clean Water Act of 1977, 33 U.S.C.
1251 et seq.
Subpart A—General
§ 123.1 Purpose and scope.
(a)(l) This Part specifies the
requirements of State section 404
(discharges of dredged or fill material)
and NPDES (sections 318, 402, and 405)
permit programs which must be met in
order to obtain approval of the
Administrator under the Clean Water
Act.
(2) This Part also specifies the process
for approving and modifying State
programs and for EPA objection to
proposed State permits.
(h) A State permit program which
conforms to this Part shall be approved
by the Administrator. A State permit
program will not be approved by the
Administrator under section 402 of the
Act unless it has authority to control the
discharges specified in sections 318 and
405(a) of the Act. Except as provided
below, State section 402 permit
programs approved by EPA prior to the
date of promulgation of these
regulations may implement sections 318
and 405 of the Act. If a State lacks
authority to implement these sections, it
shall notify EPA and revise its program
in accordance with § 123.62. Permit
programs under sections 318 and 405
will not be approved independent of a
section 402 p'ermit program.
(c) Upon approval (and upon
subsequent notification from the State
that it is administering the permit
program for purposes of section 404), the
Administrator or the Secretary (in the
case of section 404 programs), shall
suspend the issuance of permits for
those activities subject to the approved
program.
(d) After program approval EPA or the
Secretary (in the case of section 404
programs) shall retain jurisdiction over
any permits (including general permits)
which have been issued by the Federal
government unless arrangements have
been made with the State in the
Memorandum of Agreement for the
State to assume responsibility for these
permits. Retention of jurisdiction shall
include the processing of any permit
appeals, modification requests or
variance requests; the conduct of
inspections, and the receipt and review
of self-monitoring reports. If any permit
appeal, modification request or variance
request is not finally resolved when the
Federally issued permit expires, EPA or
the Secretary (in the case of section 404
programs) when agreed to by the State, •
may continue to retain jurisdiction until
the matter is resolved. Under section
404(h)(5) of the Act States are entitled,
after program approval, to administer
and enforce general permits issued by
the Secretary. However, if the State
chooses not to administer and enforce
these permits the Secretary retains
jurisdiction until they expire.
(e) Any State permit program
approved by the Administrator shall at
all times be conducted in accordance
with the requirements of this Part
(including, where incorporated by
reference, provisions of Parts 122,124,
and 125).
(f) These regulations are promulgated
under the authority of sections 304(i),-
101(e) and 501(a) of the Act, and
implement the requirements of those
sections.
[Comment: No partial program approvals
may be granted. States must have authority
to issue permits for all discharges into all
waters of the United States within the State's
jurisdiction. (In appropriate circumstances
more than one State Agency can be approved
to issue NPDES permits; see 1123.4[b}.) In
addition. States (including States which have
previously been approved) must implement
the Clean Water Act of 1977, (Pub. L. 95-217),
amendments to sections 313 (Federal
facilities); 304(e) (best management
practices); and 402(b)(8) (pretreatment) of the
Act. Similarly, all the requirements of section
404 must be satisfied prior to approval of a
State section 404 program. The section 404
and NPDES programs are independent; a
State may obtain approval for one without
the other. '
Although these regulations require States
to administer complete programs, EPA
recognizes that, as a matter of Federal law, a
State may lack authority to exercise
jurisdiction over discharges from facilities on
Indian" lands. The lack of such authority does
not constitute grounds for refusal to authorize
State administration of a program. However,
to the extent that States have authority to
exercise jurisdiction, they are required to do
so.]
(g) Nothing in this Part precludes a
State from:
(1) Adopting or enforcing any
standard, limitation, or other
requirement which is more stringent
than required under the Act; or '
(2) Operating a permit program with a
greater scope of coverage than required
under the Act.
(h) A State permit program approved
under this Part is established and
operated under State law.
[Comment: EPA has a continuing statutory
responsibility to assure that the operation of
State programs in in accordance with Federal
law. States must cooperate with EPA and
assure that it has access to information which
it requests in order to carry out this
responsibility. See §§ 123.8 and 123.61(d).]
§123.2 Definitions.
(a) The definitions in Part 122 apply to
this Part.
(b) "Draft permit" means the permit
prepared pursuant to §§ 124.31 or 124.32 '
indicating the State Director's tentative
determination to issue or modify a
permit with specified conditions.
(c) "Proposed permit" means a state
permit or permit modification prepared
after the public comment period (and,
where applicable, any public hearing)
which is sent to EPA for review before
final issuance by the State. In the case
of section 404 programs, proposed
permits are not required unless
requested by EPA.
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Federal Register / Vol. 44. No. Ill / Thursday, June 7. 1979 / Rules and Regulations 32919
[Comment: Where EPA has waived permit
review no proposed permit is required under
these regulations. The State may issue a final
permit after meeting the requirements of
§§ 124.31,124.41,124.42 and 124.44.]
(d) "Memorandum of Agreement"
means the agreement entered into
pursuant to § 123.7 between the
Regional Administrator and the State '
Director, governing the relationship,
duties, and rights of the parties in
operating a State NPDES program.
(e) "State/EPA Agreement" means an
agreement between the Regional
Administrator and the State which
integrates and coordinates EPA and
State activities, responsibilities and
programs under the Clean Water Act,
the Resource Conservation and
Recovery Act, and the Safe Drinking
Water Act. The scope of the State/EPA
Agreement may be expanded in the
future to cover other environmental
programs. Guidance for these
agreements will be published from time
to time in the Federal Register (see, e.g.,
44 FR17294 March 21.1979).
§ 123.3 Elements of a program
submission.
(a) EPA will not initiate formal review
of a proposed State program until it
receives three copies of a complete
program submission. If a submission
made by a State is not complete, the
statutory review period (i.e., the period
of time allotted for EPA review under
the Act] shall not commence until the
deficiency is corrected. The submission
shall contain the following elements:
(1) A letter from the Governor of the
State requesting program approval;
(2) An Attorney General's Statement
as required by § 123.6;
- (3) A Memorandum of Agreement as
required by § 123.7;
(4) A complete program description as
required by § 123.4;
(5) Copies of the permit application
and permit forms which the State
intends to employ in its program. Except
for Discharge Monitoring Reports, forms
used by States need not be identical to
the forms used by EPA or the Secretary
but should require the same basic
information. The State need not provide
copies of uniform national forms it
intends to use but should note that it
intends to use these:
[Comment: The States are encouraged to use
uniform national forms established by the
Administrator in the case of NPDES, or the
Secretary in the case of section 404 programs.
States are required to use uniform national
Discharge Monitoring Reports, see
§ 122.31(1). Regulations will be proposed in
the near future specifying information
required on State NPDES and section 404
application forms. Uniform national forms
may be modified to substitute the State
Agency's name, address, logo, and other
similar information, as appropriate, in place
ofEPA's.]
(6) Copies of all applicable statutes
and regulations, including those
governing applicable State
administrative procedures; and
(7) In the case of section 404
programs, a Memorandum of Agreement
between the State and the Secretary as
required by § 123.5.
(b) If the State's submission is
materially changed during the statutory
review period, the review period shall
recommence.
§ 123.4 Program description.
Any State desiring to administer a
permit program shall submit to the
Administrator a complete description of
the program it proposes to establish and
administer under State law or under an
interstate compact The program
description shall include:
(a) A description of how the State
intends to carry out its responsibilities
under the Act.
(b)(l) A description (including
organization charts) of the organization
and structure of the State agency or
agencies which will have responsibility
for administering the permit program.
NPDES authority may be shared by two
or more State agencies but each agency
must have Statewide jurisdiction over a.
class of activities. Where more than one
agency is responsible for issuing
permits, each agency must make a
submission meeting the requirements of
§ 123.3 before formal EPA review will
commence. In the case of section 404
programs, the State must designate one
agency to be responsible for issuing
section 404 permits.
(2) In the case of section 404
programs, the program description shall
describe how the State section 404
agency will interact with other State and
local agencies.
[Comment There is no restriction limiting the
number and type of state agencies
implementing the NPDES program. However,
EPA favors the use of a single agency.]
(c) A description of State procedures
for the issuance of permits (including
general permits if the State chooses to
implement § 122.48), and any State
appellate review procedures.
(d) A description of the State's
priorities for issuance of permits.
(e) A description of the State's
priorities for enforcement of permits,
including a complete description of the
State's compliance tracking and
enforcement programs. In addition, in
the case of section 404 programs the
State must explain how it will
coordinate its enforcement strategy with
that of the Corps of Engineers and EPA.
(f) A description of the funding
arrangements and personnel
qualifications for the State's program,
including the following information:
(1) A description of the agency staff
who will be engaged in carrying out the
State program, including the number and
occupations of the employees;
(2) A list of the proposed or actual
costs of establishing and administering
the program, including the cost of the
personnel listed in paragraph (f)(l) of
this section, the cost of administrative
support, and the cost of technical
support;
(3) A description of the funding,
including Federal grant money,
available to the State Director to meet
the costs listed in paragraph (f)(2) of this
section, including any restriction or
limitation upon this funding. Where the
State proposes to administer a program
of greater scope than is required by -
Federal law, the information provided
under this paragraph shall indicate the
resources dedicated to administering the
federally required portion of the
program; and
(4) For section 404 programs, a
description of the categories and sizes of
dicharges of dredged or fill material to
which the State Director proposes to
issue permits. For each category, the
following information shall be given:
(i) Estimated number within the
category which must file for a permit;
and
(ii) Number and percent within each
category for which the State has already
issued a State permit or equivalent
document regulating the discharge.
(g) In the case of section 404
programs, a description of the specific
best management practices
requirements proposed to be used to
satisfy the exemption provisions of
section 404(f)(l)(E) for construction or
maintenance of farm roads, forest roads,
or temporary roads for moving mining
equipment in accordance with
applicable regulations.
[Comment: Regulations governing these BMPs
will be proposed in the near future.]
§ 123.5 Memorandum of Agreement with
the Secretary for section 404 programs.
In the case of section 404 programs
the State shall enter into a
Memorandum of Agreement with the
Secretary, which shall include:
(a) An identification of those waters
in which the Secretary will suspend the
issuance of section 404 permits
(pursuant to section 404 (h)(2) and (g)(l))
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32920
Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
upon approval of the State program by
the Administrator;
(b) Where an agreement is reached,
procedures for joint processing of
permits for activities which require both
a section 404 permit from the State and
a section 9 or 10 permit from the .
Secretary under the River and Harbor
Act of 1899.
(c) An identification of those
individual and general permits, if any,
issued by the Secretary, the terms and
conditions of which the State intends to
administer and enforce (including
inspection, monitoring, and surveillance
responsibilities) upon receiving approval
of its program, and a plan for
transferring these permits to the State.
[Comment: See Comment to § 123.7(b)(l).J
(d) Procedures whereby the Secretary
will transfer to'the State pending section
404 permit applications and other
relevant information, as specified in
§ 123.21.
(e) Assurance that the State will not
issue any section 404 permit for a
discharge which, in the judgment of the
Secretary after consultation with the
Secretary of the Department in which
the Coast Guard is operating, would
substantially impair anchorage or
navigation.
(f) Those "classes or categories" if.
any, of proposed State permits for which
the Secretary waives the right to review.
(g) Other matters not inconsistent
with this Part that the Secretary and the
State deem appropriate.
[Comment: States that regulate the discharge
of dredged or fill material into those
traditionally navigable waters which, by
virtue of section 404(g)(l), will also require a
section 404 permit from the Secretary after
State program approval, are strongly
encouraged to establish in this Memorandum
of Agreement procedures for joint processing
of permits, including joint public notices and
public hearings,]
§ 123.6 Attorney General's Statement >
(a) Any State desiring to administer a
permit program shall submit a statement
from the State Attorney General (or the
attorney for those State agencies which
have independent legal counsel), that
the laws of the State, or the interstate
compact, as the case may be, provide
adequate authority to carry out the
program described under § 123.4 and to
meet the requirements of this Part. The
Attorney General's Statement shall
include citations to specific statutes,
administrative regulations, and, where
appropriate, judicial decisions to
demonstrate adequate legal authority.
[Comment: To qualify as "independent legal
counsel" the attorney signing the statement
required by this section must have full
authority to independently represent the
State in court on all matters pertaining to the
State program.]
(b) Where juridiction may be
exercised over activities on Indian
lands, the statement shall certify that
the State has such authority.
(c) In the case of section 404
programs, in addition to certifying the
authorities described in paragraph (a),
the Attorney General's Statement shall
also contain:
(l)An analysis of the State's-law
prohibiting the taking-of private
property without just compensation,
including any applicable judicial
interpretations, and assurance that this
will not adversely affect the successful
implementation of the State's regulation
of the discharge of dredged or fill
material; and '
(2) A certification that the State has
authority to prohibit, deny, restrict, or
withdraw the specification of disposal
sites for the discharge of dredged or fill
material in any defined area of those
waters for which the State receives
section 404 authority, including:
(i) Authority to apply the criteria
contained in 40 CFR Part 230;
(ii) Authority (similar to EPA's
authority under section 404(c)) to
prohibit the discharge of dredged or fill
material into areas where such
discharges would have an unacceptable
adverse effect on municipal water
supplies, shellfish beds and fishery
areas (including spawning and breeding
areas), wildlife or recreational areas.
[Comment The above authority to prohibit,
deny, restrict or withdraw the specification
of disposal sites should not be limited to
situations where an application for a 404
permit has been made, but should also
include the authority to designate areas
which will not be available for disposal site
specification, as described in 40 CFR
§ 230.7(d). Nothing in subparagraph {c)(2)(ii)
is intended to limit the Administrator's
authority to take similar actions under
section 404(c) of the Act.]
(d) The authorities cited by the State
Attorney General or other legal officer
as authority to meet the requirements of
this Parfshall be in the form of lawfully
adopted State statutes or regulations
which shall be in full force and effect at
the time the statement is signed.
[Comment: This Part sets forth a number of
procedural requirements. For example,
§ 123.22 requires approved States to transmit
information to EPA and other agencies. Not
all such procedural requirements need be
embodied in State regulations. However, the
State must show it has adequate authority to
carry out all the requirements of this Part,
and that no State statute or regulation is
inconsistent with those requirements.]
§ 123.7 Memorandum of Agreement with
the regional administrator.
(a) Before the Administrator approves
any State NPDES or section 404
program, the State Director and the
Regional Administrator shall execute a
Memorandum of Agreement (MOA),
which shall be approved by the
Administrator not later than the time of
program approval. In addition to
including the requirements of paragraph
(b), the Memorandum of Agreement may
include other terms, conditions, or
agreements relevant to the
administration and enforcement of the
State's regulatory program which are not
inconsistent with this Part. No
Memorandum of Agreement shall be
approved which restricts EPA's
statutory oversight responsibility. The
Memorandum of Agreement shall be
available for inspection and comment
before the public hearing required by
§§123.51 or 123.52:
(b) The Memorandum of Agreement
shall include the following:
(1) Provisions implementing § 123.21
for the prompt transfer of any pending
permit applications or any other
relevant information not already in the
possession of the State Director. Where
existing permits are transferred to the
State for administration, the
Memorandum of Agreement shall
contain provisions specifying a
procedure for transferring responsibility
for these permits. Where existing
permits are not transferred, § 123.1(d)
applies.
[Comment: In many instances States will lack
the authority to directly administer permits
issued by EPA. However, a procedure may be
established to transfer responsibility for
these permits. For example, a State could
issue permits identical to the outstanding
EPA permits which could be simultaneously
revoked.]
(2) Provisions implementing §§ 123.22
and 123.23 specifying the basis and
procedures for EPA to receive permits
and permit applications from the State
for review, comment, and objection. In
the case of a State section 404 program
the State shall assure that it will
transmit copies of all proposed permits
to the Corps of Engineers, the U.S. Fish
and Wildlife Service, and the National
Marine Fisheries Service at the same
time such permits are transmitted to
EPA, subject to the right of any of these
agencies to waive, in whole or in part,
the right to receive such permits.
(3){i) In the case of section 402
programs, provisions specifying the-
extent to which EPA review of State-
issued permits will be waived under
sections 402(d)(3), (e) or (f) of the Act.
While the Regional Administrator and
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32921
the State may agree to waive EPA
review of certain "classes or categories"
of permits, no waiver of review may be
granted for the following discharges:
(A) Discharges into the territorial sea
or contiguous zone;
(B) Discharges which may affect the
waters of a State other than the one in
which the discharge originates;
(C) Proposed JNPDES general permits
{see § 122.48); i
(D) Discharges from publicly owned
treatment works with a daily average
discharge exceeding 1 million gallons
per day;
(E) Discharges of uncontaminated
cooling water with a daily average
discharge exceeding 500 million gallons
per day;
(F) Discharges from any major
discharger or from any discharger within
any of the industrial categories listed in
Appendix A to Part 122;
(G) Discharges from other sources
with a daily average discharge
exceeding 0.5 million gallons per day,
except that EPA review of permits for
discharges of non-process wastewater
may be waived, regardless of flow, with
the prior concurrence of the JSPA Deputy
Assistant Administrator for Water
Enforcement;
(ii) In the case of section 404
programs, provisions specifying the
extent to which EPA review of permit
applications and State-issued permits
will be waived under sections 404(k) or
(1) of the Act While the Regional
Administrator and the State, in
consultation with the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service, may agree to waive
Federal review of certain "classes or
categories" of permits no waiver may be
granted for the following activities:
(A) Discharges which may affect the -
waters of a State other than one from
which the discharge originates;
(B) Discharges incidental to activities
described in section 404(f){2) of the Act
(i.e., activities having as their purpose
bringing an area of the waters of the
United States into a new use, where the
flow and circulation of waters may be
impaired or their reach reduced);
(C) Proposed section 404 general
permits; or
[D) Discharges known or suspected to
contain toxic or hazardous pollutants hi
significant amounts.
(iii) Whenever a waiver is granted
under paragraph (b)[3) (i) or (ii) of this
section, a statement that the Regional
Administrator retains the right to
terminate the waiver, in whole or in
part, at any time by sending the State
Director written notice of termination.
The waiver shall not affect the duty of
the State to supply EPA with copies of
all permit applications, public notices
and final permits.
(4) Provisions, consistent with this
Part, specifying the frequency and
content of reports, documents and other
information which the State must submit
to EPA.
(5) Provisions on the State's
enforcement program including:
(i) Provisions for compliance
monitoring by the State and by EPA and
for the coordination of these efforts.
These provisions may specify the basis
on which the Regional Administrator
will select facilities or activities within
the State for EPA inspection;
(ii) Fiscal arrangements for effective
litigation support for the State attorney
general or other appropriate legal
officers;
(iii) The establishment of an
enforcement management system
implementing the requirements of
§ 123.31.
(6) Where appropriate, provisions for
joint processing of permits by the State
and EPA.
[Comment: To promote efficiency and to
avoid duplication and inconsistency, States
are encouraged to enter into joint processing
agreements with EPA for permit issuance.
Likewise, States are encouraged to
consolidate their own permit programs and
activities.}
(7) Provisions for modification of the
Memorandum of Agreement with the
approval of the Administrator.
(c) The Memorandum of Agreement
and the State/EPA Agreement should be
consistent. If the State/EPA Agreement
indicates that a change is needed in the
Memorandum of Agreement, the
Memorandum of Agreement may be
amended in accordance with procedures
set forth in this Part. The State/EPA
Agreement may not override the
Memorandum of Agreement.
[Comment: Detailed program priorities and
specific arrangements for EPA support of the
State program will change and are therefore
more appropriately negotiated in the context
of annual agreements rather than in the
MOA. Where this is the case, it may still be
appropriate to specify in the MOA the basis
for such detailed agreements, for example, a
provision in the MOA specifying that EPA
will select facilities in the State for inspection
annually as part of the State/EPA
Agreement]
§ 123.8 Sharing of information.
(a) Any informationobtained or used
pursuant to a State program shall be
available to EPA upon request without
restriction. If the information has been
submitted to the State under a claim of
confidentiality, the State must pass that
claim on to EPA. Any information
obtained from a State and subject to a
claim of confidentiality will be treated
in accordance with the regulations in 40
CFR Part 2. If EPA obtains information
from a State that is not claimed to be
confidential, EPA may make that
information available to the public
without further notice.
(b) EPA may furnish information to
States in order to implement these
regulations. In the case of information
claimed as confidential by submitters.
State access will be subject to the rules
in 40 CFR Part 2, Subpart B. ' „
Subpart B—Requirements of State
Programs
§ 123.11 Requirement to obtain a permit
(a) State NPDES permit programs
must have a statute or regulation,
enforceable in State courts, which
prohibits the discharge of pollutants by
any person except as authorized by a
permit in effect under the State program
or under section 402 of the Act, except
that States need not regulate discharges
exempt from the Federal permit
requirement under 1122.4.
(b) State section 404 permit programs
must have a statute or regulation,
enforceable in State courts, which
prohibits the discharge of dredged or fill
material into waters subject to the
State's jurisdiction by any person except
as authorized by a permit in effect under
the State program or under section 404
of the Act, except that States need .not
regulate discharges exempt from the
Federal permit requirement under
section 404(r) or under the regulations
implementing section 404(f)(l) of the
Act.
[Comment: § 123.1(g) provides that States are
not preempted from adopting more stringent
standards or regulating more activities than
the Act requires. For example. States may
choose to regulate certain minor categories of
discharges of dredged or fill material which
have been exempted from the Federal
program by section 404(f)(l] of :-he Act.
Likewise, States are not precluded from
regulating activities which, by virtue of
section 404(g)(l) of the Act, also require a 404
permit from the Secretary. Although State
permits in waters described in section
404[g)(l) are not section 404 permits, section
404(1) of the Act provides'that a State is not
preempted from requiring permits for
discharges into these waters. It should be
noted that the regulations of the Corps of
Engineers encourage joint Corps-State
processing of permits, including joint public
notices and hearings (33 CFR § 320.4(j)). The
Secretary attaches considerable weight to
State determinations (33 CFR § 320.4(j)(l)-
(7).]
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
§ 123.12 Operational requirements.
(a) State section 402 programs must
have legal authority to implement each
of the following provisions and must be
administered in confonnance with each
of the following provisions:
(1) § 122.5—(Signatories);
(2) § 122.11(d)—(Permit issuance;
effect of permit);
(3) §122.12(a), (c) and (d)—(Duration
and transferability of permits);
(4) §122.13—(Prohibitions);
[5] §122.14—(Conditions applicable to
all permits);
(6) §122.15—(Applicable limitations,
standards, prohibitions and conditions);
(7) §122.16—(Calculation and
specification of effluent limitations and
standards);
(8) §122.17(a), (b), (d), (e) and (f)—
(Schedules of compliance);
(9) §122.20—(Monitoring);
(10) §122.21—(Recording of monitoring
results);
(11) §122.22—(Reporting of monitoring
results);
(12) § 122.23—(Noncompliance
reporting);
(13) § 122.31—(Modification,
revocation and reissuance, and
termination);"
(14) Part 122. Subpart E except
§§ 122.40,122.47(aHc) and 122.49—
(Special NPDES Programs)—provided,
States are not required to implement the
general permit program under § 122.48.
If a State chooses to issue general
permits such action is subject to the
following conditions:
(i) Any general permit shall be issued
in accordance with § 122.48;
(ii) Prior to, or at the time of proposal
of any general permit, the State
Attorney General (or other legal officer
as appropriate, see § 123.6) shall certify
that the State has adequate legal
authority to issue and enforce general
permits;
(iii) EPA shall have 90 days to review
any proposed general permit; and
(iv) All general permits, except those
for separate storm sewers, may be
objected to on EPA's behalf by the EPA
Deputy Assistant Administrator for
Water Enforcement The State shall
transmit a copy of any such proposed
general permit to the EPA Deputy
Assistant Administrator for Water
Enforcement at the same time the
proposed permit is transmitted to the
EPA Regional Office.
(15) § 124.13—(Modification requests);
(16) § 124.31(b)—(Draft permits);
(17) § 124.32(a}—(Other draft permits);
(18) § 124.33—(Statement of basis);
(19) § 124.34—(Fact sheet);
(20) § 124.41—(Public notices);
(21) § 124.42—(Public comments and
hearing);
(22) § 124.44—(Comments from
government agencies);
(23) § 124.51—(Time requirements for
variances), provided, State programs are
not required to provide for any or all of
the variances listed in § 124.51;
(24) § 124.52—(Decision on variances);
(25) § 124.63(a}—(Response to
comments);
(26) § 124.131(a)—(Public access);
(27) Subparts A, B, C, D, H, I, J, K and
L of Part 125—{NPDES Determinations);
and
(28) 40 CFR Parts 129,133 and
Subchapter N.
(b) States seeking approval of section
404 programs should consult with EPA
on the operational aspects of their
programs.
[Continent- Regulations governing the
operational aspects of State section 404
programs will be proposed in the near future.]
§ 123.13 Control of disposal of pollutants
Into wells.
State section 402 permit programs
must have authority to issue permits to
control the disposal of pollutants into
wells. Such authority shall enable the
State Director to protect the public
health and welfare and to prevent the
pollution of ground and surface waters
by prohibiting well discharges or by
permitting them with appropriate permit
terms and conditions.
[Comment: States which are authorized to
administer the NPDES permit program under
section 402 of the Act are encouraged to rely
on existing statutory authority, to the extent
possible, in developing a State underground
injection control (UIC) program under section
1422 of the Safe Drinking Water Act Section
402(b)(l)(D) of the Clean Water Act requires
that NPDES States have the authority "to
issue permits which . . . control the disposal
of pollutants into wells." In many instances,
therefore, NPDES States will have statutory
authority to regulate well disposal which
satisfies the requirements of the UIC
program. However, the Clean Water Act
excludes certain types of well injections from
the definition of "pollutant" If the State's
statutory authority contains a similar
exclusion it may need to be modified to
qualify for UIC program approval]
§ 123.14 Inspections, monitoring, entry,
and reporting.
Any State permit program shall
provide adequate authority to inspect,
monitor, enter, and require reports to at
least the same extent as required in
section 308 of the Act
Subpart C—Transfer of Information,
Objections To Permits
§123.21 Receipt and use of Federal
information.
Upon receiving EPA approval, the
State agency administering a permit
program shall be sent any relevant -
information which was collected by EPA
or, where appropriate, the Secretary.
The Memoranda of Agreement under
§§ 123.5 and 123.7 shall provide for the
following, in such manner as the State
Director and the Regional Administrator
or, where appropriate, the Secretary,
shall agree:
(a) Prompt transmission to the State
Director from the Regional
Administrator or the Secretary of copies
of any pending permit applications or
any other relevant information collected
before the approval of the State permit
program and not already in the
possession of the State Director. Where
existing permits are transferred to the
State Director (e.g., for purposes of
compliance monitoring, enforcement, or
reissuance), relevant information
includes support files for permit
issuance, compliance reports, and
records of enforcement actions.
(b) Procedures to ensure that the State
Director will not issue a permit on the
basis of any application received from
the Regional Administrator or the
Secretary which the Regional
Administrator or the Secretary identifies
as incomplete or otherwise deficient
until the State Director receives
information sufficient to correct the
deficiency. • •-. '
§ 123.22 Transmission of information to
EPA.
(a) Each State agency administering a
permit program shall transmit to the
Regional Administrator (and in the case
of section 404 programs, to the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the National Marine
Fisheries Service), copies of permit
program forms and any other relevant
information to the extent and in the
manner agreed to by the Director and
the Regional Administrator in the
Memorandum of Agreement and not
inconsistent with this Part. EPA review
of proposed NPDES general permits is
governed by § 123.12(a)(14). The
Memorandum of Agreement shall
provide for the following:
(1) Prompt transmission to the
Regional Administrator of a copy of any
complete permit applications received
by the State Director.
(2) Prompt transmission to the
Regional Administrator and any
affected State of notice of every action
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32923
taken by the State agency related to the
consideration of any permit application,
including a copy of each proposed or
draft permit and any terms, conditions,
requirements, or documents which are
related to the proposed or draft permit
or which affect the authorization of the
proposed permit. In the case of section
404 programs, the above shall be
transmitted to the Corps of Engineers,
the U.S. Fish arid Wildlife Service, and
the National Marine Fisheries Service at
the same time they are transmitted to
EPA. The State program shall provide:
(i) A period of time (up to 90 days}.in
which the Regional Administrator, or
where appropriate, the EPA Deputy
Assistant Administrator for Water
Enforcement (see § 123.12(a](14J), may
comment upon, object to, or make
recommendations with respect to the
proposed permit and, in the case of
section 404 programs, on the permit
application. A copy of any comment,
objection, or recommendation shall be
sent to the permit applicant by EPA. In
the case of NPDES general permits, EPA
shall have 90 days to comment upon,
object to, or make recommendations
with respect to the proposed permit.
(ii) In the case of a draft or proposed
permit which includes a tentative
determination to approve a variance
request which may only be authorized
by EPA (see § 124.52(b)}. formal EPA
review of the permit shall not begin
under this section and § 123.23 until EPA
rules on the variance request.
[Comment: Normally EPA review time is
substantially less than 90 days. However,
EPA reserves the right to take a full 90 days
to supply specific grounds for objection
where a general objection is filed withjn the
review period of the Memorandum of
Agreement In making comments, objections
or recommendations on proposed State
section 404 permits, the Regional
Administrator will consider any timely
written comments submitted to him by the
Secretary, the U.S. Fish and Wildlife Service
or the National Marine Fisheries Service.]
(3) Transmission to the Regional
Administrator of a copy of every issued
permit following issuance, along with
any and all terms, conditions,
requirements, or documents which are
related to or affect the authorization of
the permit.
(b) In the case of NPDES programs,
transmission by the State Director to
EPA of:
(1) Notices from publicly owned
treatment works under § 122.15(d) and
40 CFR Part 403, upon request of the
Regional Administrator,
(2) A copy of any significant
comments presented in writing pursuant
to the public notice and the response to
comments prepared pursuant to
§ 124.63(a) if:
(i) The Regional Administrator
requests this information; or
(ii) The proposed permit contains
requirements significantly different from
those contained in the tentative
determination and draft permit; or
(iii) Significant comments adverse to
the tentative determination and draft
permit have been presented at the
hearing or in writing pursuant to the
public notice; and
(3) A quarterly noncompHance report
in accordance with § 122.23.
(c) Within the time period agreed
upon in the Memorandum of Agreement
(or 90 days in the case of proposed
NPDES general permits), the Regional
Administrator (or, where appropriate,
the EPA Deputy Assistant Administrator
for Water Enforcement), pursuant to the
right to object provided in the Act and
§ 123.23, may comment upon, object to,
or make recommendations with respect
to any proposed permit. In the case of
section 404 programs, the Regional
Administrator shall notify the State
Director of his or her intent to comment
upon or object to a proposed permit
within 30 days of receipt.
(d) The Regional Administrator may,
by agreement with the State Director in
the Memorandum of Agreement (see
§ 123.7(b)(3J), waive the right to review,
object to, or comment upon permit
applications and proposed permits for
classes, types, or sizes of discharges
within any category of point sources,
including the right to receive information
under paragraphs (a)(2) and (b)(2) of this
section.
(e) Any State section 404 permit
program shall provide for transmission
by the State Director to the Regional
Administrator of the quarterly and
annual reports on the permit program, in
accordance with applicable regulations.
[Comment: Regulations governing reporting
requirements for State section 404 programs
will be proposed in the near future.)
(f) Any State permit program shall
keep such records and submit to the
Administrator such information as the
Administrator may reasonably require
to ascertain whether the State program
complies with the requirements of the
Act or of this Part.
§ 123.23 Objections to proposed NPDES
permits.
(a)(l) Within the period of time
provided under the Memorandum of
Agreement, the Regional Administrator
shall notify the State Director of any
objection to issuance of a proposed
permit {except as provided in paragraph
(a)(2) of this section for proposed
general permits). This notification shall
set forth in writing the general nature of
the objection.
(2) Within 90 days following receipt of
the proposed permit which has been
objected to under subparagraph (a)(l) of
this section, or in the case of general
permits, within 90 days after the receipt
of the proposed general permit, the
Regional Administrator, or, in the case
of general permits other than for'
separate storm sewers, the EPA Deputy
Assistant Administrator for Water
Enforcement shall set forth in writing
and transmit to the State Director:
(i) A statement of the reasons for the
objection (including the section of the
Act or regulations that support the
objection), and
(ii) The actions that must be taken by
the State Director in order to eliminate
the objection (including the effluent
limitations and conditions which the
permit would include if it were issued
by EPA).
[Comment: This paragraph, in effect, modifies
any existing agreement between EPA and the
State which provides'less than 90 days for
EPA to supply the specific grounds for an
objection. However, where an agreement
provides for an EPA review period of less
than 90 days EPA must file a general
objection, in accordance with paragraph
(a)(l) within the time specified in the
agreement. This general objection will be
followed by a specific objection within the
90-day statutory period. This modification to
the MOA's is necessary for EPA review of
general permits and since the Clean Water
Act of 1977 now requires EPA to provide *
detailed information concerning acceptable
permit terms and conditions. To avoid
possible confusion, MOA's should be
changed to reflect this.)
(b) The Regional Administrator may
object to the issuance of a proposed
permit as being outside the guidelines
and requirements of the Act. This
objection must be based upon one or
more of the following grounds:
(1) The permit fails to apply, or to
ensure compliance with, any applicable
requirement of this Part;
[Conwne/jt-Under the provisions of this
section, a permit not requiring the
achievement of required effluent limitations
by applicable statutory deadlines shall be
subject to objection by the Regional
Administrator.}
(2) In the case of any proposed permit
for which notification is required under
section 402(b)(5) of the Act, the written
recommendations of an affected State
have not been accepted by the
permitting State and the Regional
Administrator finds the reasons for
rejecting the recommendations are
inadequate;
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32924 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
(3) The procedures followed in
connection with formulation of the
proposed permit failed in a material
respect to comply with procedures
required by the Act, or by regulations
thereunder or by the Memorandum of
Agreement;
(4) Any finding made by the State
Director in connection with the
proposed permit misinterprets the Act or
any guidelines or regulations under the
Act, or misapplies them to the facts;
(5) Any provisions of the proposed
permit relating to the maintenance of
records, reporting, monitoring, sampling,
or the provision of any other information
by the permittee are inadequate, in the
judgment of the Regional Administrator,
to assure compliance with permit
conditions, including effluent standards
and limitations required by the Act, by
the guidelines and regulations issued
under the Act, or by the proposed
permit;
(6) In the case of any proposed permit
with respect to which applicable
standards and limitations under sections
301, 304, 306, 307, 318, 403 and 405 of the
Act have not yet been promulgated by
the Agency, the proposed permit, in the
judgment of the Regional Administrator,
fails to carry out the provisions of the
Act or of any regulations issued under
the Act;
[Comment The provisions of this paragraph
apply to determinations made pursuant to
§ 125.3(c)(2) in the absence of applicable
guidelines and to best management practices
under section 304(e) of the Act, which must
•be incorporated into permits as requirements
under sections 301, 306, 307, 318, 403, or 405
as the case may be.]
(7) Issuance of the proposed permit
would in any other respect be outside
the requirements of the Act, or^
regulations issued under the Act.
(c) Prior to notifying the State Director
of an objection based upon any of the
grounds set forth in paragraph (b) of this
section, the Regional Administrator:
(1) Shall consider all data transmitted
pursuant to § 123.22;
(2) May, if the information provided is
inadequate to determine whether the
proposed permit meets the guidelines
and requirements of the Act, request the
State Director to transmit to the «
Regional Administrator the complete
record of the permit proceedings before
the State, or any portions of the record
that the Regional Administrator
determines are necessary for review. If
this request is made within 30 days of
receipt of the State submittal under
§ 123.22, it shall constitute an interim
objection to the issuance of the permit,
and the full period of time specified in
the Memorandum of Agreement for the
Regional Administrator's review shall
recommence when the Regional
Administrator has received such record
or portions; and
(3) May, in his or her discretion and to
the extent feasible within the period of
time available under the Memorandum
of Agreement, afford to every interested
person an opportunity to comment on
the basis for an objection.
(d) Within 90 days of receipt by the
State Director of an objection by the
Regional Administrator, the State or any
interested person may request that a
public hearing be held by the Regional
Administrator on the objection.
-Following a request, the Regional
Administrator may provide public notice
and hold a public hearing in accordance
with the procedures of §§ 124.41 and
124.42 if warranted by significant public
interest. A hearing shall be held
whenever requested by the State which
• proposed the permit.
(e) A public hearing held under
paragraph (d) shall be conducted by an
EPA panel in an orderly and expeditious
manner. Members of this panel shall
include the Regional Administrator, the
Assistant Administrator for
Enforcement, the General Counsel, or
their respective representatives.
(f) At the conclusion of the public
hearing the Regional Administrator shall
reaffirm the original objection, modify
the terms of the objection, or withdraw
the objection, and shall notify the State
of this decision.
(g) Where the Regional Administrator
has objected to a proposed permit under
this section, he or she may issue the
permit in accordance with Parts 121,122
and 124 and any other guidelines and
requirements of the Act in the following
circumstances:
(1) If no public hearing is held under
paragraph (d) and the State does not
resubmit a permit revised to meet the
Regional Administrator's objection
within 90 days of receipt of the
objection; or
(2) If a public hearing is held under
paragraph (d) and the State does not
resubmit a permit revised to meet the
Regional Administrator's objection or
modified objection within 30 days of the
date of the Regional Administrator's '
notification under paragraph (f) of this
section.
[Comment- Where the time set out in this
paragraph expires without acceptable State
action, exclusive authority to issue the permit
passes to EPA.]
(h) In the case of proposed general
permits for discharges other than from
separate storm sewers substitute "EPA
Deputy Assistant Administrator for
Water Enforcement" for "Regional
Administrator" whenever it appears in
paragraphs [b), (c), (d), (f) and (g).
§ 123.24 Prohibitions.
Any State permit program shall
provide that no permit shall be issued -
when EPA has objected in writing under
section 402(d) or section 404(j) of the
Act, whichever is applicable, and in the
case of section 404 programs, in any
defined area as to which the
administrator has made a determination
to prohibit or withdraw specification for
disposal under section 404{c) of the act.
In addition, no permit shall be issued if
objected to by the Secretary pursuant to
sections 402(b)(6) or 404(h)(l)(F) of the
Act.
Subpart D—Enforcement Provisions
§ 123.31 Compliance evaluation programs.
(a) Any State program shall have
procedures for receipt, evaluation, and
investigation for possible enforcement
action of all notices and reports required
of permittees (or failure to submit such
notices and reports). ^
(b) Any State section 402 permit
program shall have procedures and
ability for:
(1) The maintenance of a
comprehensive inventory of all sources
covered by NPDES permits and a
forecast of all reporting requirements to
the agency. Any compilation, index or
inventory of such sources shall be made
available to the Regional Administrator
upon request;
(2) Initial screening (i.e., pre-
enforcement evaluation] of all permit or
grant-related compliance information to
identify violations and to establish the
priority for further substantive technical
evaluation;
(3) Following the initial screening, a
substantive technical evaluation, where
warranted, of all permit or grant-related
compliance information to determine the
appropriate agency response;
(4) The maintenance of a management
information system which supports and
guides the activities of this paragraph
and paragraph (c).
(c) Any State program shall have
inspection and surveillance procedures
to determine, independent of
information supplied by dischargers,
compliance or noncompliance with .
applicable program requirements,
standards and limitations, filing
requirements and permit terms or
conditions, including the following:
(1) A program which is capable of
surveying State waters to identify
dischargers subject to regulation who
have failed to apply for permits;
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32925
(2) A program for periodic inspections
of the activities subject to regulation.
The facilities of major dischargers (for a
discussion of "major discharger", see
Comment to § 122.23) shall be inspected
at least annually. These inspections
shall: j
(i) Determine compliance or
noncompliance with issued permit terms
and conditions and other program
requirements, and, in particular,
compliance or noncompliance with
specific standards and limitations,
operation and maintenance
requirements, and schedules of
compliance;
(ii) Verify the accuracy of information
submitted by permittees in reporting
forms and other forms supplying
monitoring data; •>
(iii) Verify the adequacy of sampling,
monitoring and other methods used by
permittees to develop that information;
and
(3) A program for investigating
evidence of violations of applicable
program requirements, standards and
limitations, filing requirements, or
permit terms and conditions indicated
by reports and notifications evaluated
under paragraph (b) or by the survey,
inspection, and surveillance activities in
paragraphs (c) [I] and (2] of this section.
This program shall include procedures
for receiving and ensuring proper
consideration of evidence submitted by
the public about violations. Public effort
in reporting violations shall be
encouraged, and the State Director shall
make available information on reporting
procedures.
(d) Inspections shall be conducted,
samples shall be taken and other
information shall be gathered in a
manner that will produce evidence
admissible in an enforcement
proceeding or in court.
§123.32 Enforcement
Any State agency administering a
permit program shall have the following
powers and procedures and recourse to
criminal and civil remedies:
(a) In the case of Section 402
programs, procedures which enable the
State Director immediately and
effectively to halt or eliminate any
imminent or substantial endangennent
to the public health or welfare resulting
from the discharge of pollutants:
(1) By an order or suit in the
appropriate State court to immediately
restrain any person causing or
contributing to the discharge of -
pollutants; or
(2) By a procedure for immediate
telephone notice to the Regional
Administrator of any actual or
threatened endangerment to the public
health or welfare resulting from the
discharge of pollutants.
(b) In the case of section 404
programs, procedures which enable the
State Director immediately and
effectively to halt or eliminate any
unauthorized discharges of dredged or
fill material, including the authority to
do each of the following:
(i) Issue a cease and desist or an
interim protective order to any person
responsible for or involved in an
unauthorized discharge;
(2) Sue in the appropriate State court
to immediately restrain any person
responsible for. or involved in an
unauthorized discharge; and
(3) Immediately notify the Regional
Administrator by telephone of any
actual or threatened endangerment to
the public health or welfare resulting
from any discharge of dredged or Fill
material.
(c) Procedures which enable the State
Director to sue in courts of competent
jurisdiction to enjoin any threatened or
continuing violation of any permit term
or condition without the necessity of a
prior revocation of the permit.
(d] Procedures which enable the State
Director to enter any premises in which
a source of a discharge, including a
treatment facility, is located or in which
records must be kept under terms or
conditions of a permit, and otherwise to
investigate, inspect or monitor any
suspected violations of applicable
standards and limitations or of permit
terms or conditions.
(e) Procedures which enable the State
Director to require compliance with and
to assess or to sue to recover in court
civil penalties, for the violation by any
person of the following:
(1) Any applicable standards and
limitations;
(2) Any permit term or condition;
. (3) Any filing requirements;
(4) Any duty to allow or carry out
inspection, entry, or monitoring
activities;
(5) any order issued by the State
Director under paragraph (a) or (b) of
this section; or
(6) Any rules, regulations, or orders
issued by the State Director.
(f) Procedures which enable the State
Director to seek criminal fines for the
willful or negligent violation by any
person of any of the following:
(1) Any applicable standard or
limitations;
(2) Any permit term or condition; or
(3) Any filing requirements.
(g) Procedures which enable the State
Director to seek criminal fines against
any person who knowingly makes any
false statement, representation, or
certification in any permit program form
or any notice or report required by the
terms and conditions of any issued
permit or who knowingly renders
inaccurate any monitoring device or
method required to be maintained by the
State Director.
[Comment: It is understood that in many
States the State Director is represented in
State courts by the State Attorney General or
other appropriate legal officer. While the
State Director need not appear in court
actions under this section, he or she should
have the power to request that such actions
be brought.]
(h)(l) The maximum civil penalties
and criminal fines that can be sought by
the State Director under paragraphs (e),
(f) and (g) of this section shall be
comparable to similar maximum
amounts that can be sought by the
Administrator under section 309 of the
Act. The maximum amounts of these
civil penalties or criminal fines shall be
applicable.to each violation specified in
paragraphs (e), (f) and (g) of this section,
or, if the violation is continuous, to each
day the discharge occurs.
(2) The burden of proof and degree of
knowledge or intent required under
State law for establishing violations
under paragraphs (e), (f) and (g) shall be
no greater than the burden of proof or
degree of knowledge or intent EPA must
show when it brings an action under
section 309 of the Act.
[Comment: For example, this requirement is
not met if the State law includes any mental
state as an element of proof for civil
violations.]
(i) Any civil penalty assessed, sought,
or agreed upon by the State Director
under paragraph (e] of this section shall
be appropriate to the violation. A civil
penalty agreed upon by the State
Director in settlement of administrative
or judicial litigation may be adjusted by
a percentage which represents the
likelihood of success of establishing the
underlying violation or violations in
such litigation. In the event that such a
civil penalty would be so severely
disproportionate to the resources of the
owner or operator of the violating
facility that its imposition, together with
the costs of expeditious compliance,
would jeopardize its continuance in
business, the payment of the penalty
may be deferred or the penalty may be
forgiven in whole or in part as
circumstances may warrant. For
violations resulting from a source's
failure to bring itself into initial
compliance with a statutory or final
permit deadline, "appropriate to the
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32926 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 /Rules and Regulations
violation" as nsed in this paragraph, ~
means a penalty which is equal to:
(1) An amount appropriate to redress
the harm or risk of harm to public health
or the environment; plus
(2) An amount appropriate to remove
the economic benefit gained or to be
gained from delayed compliance; plus
(3) An amount appropriate as a
penalty for the violator's degree of
recalcitrance, defiance, or indifference
to requirements of the law, plus
(4) An amount appropriate to recover
unusual or extraordinary enforcement
costs thrust upon the public; minus
(5) An amount, if any, appropriate to
reflect any part of the noncompliance
attributable to the Government itself;
minus
(6) An amount appropriate to reflect
any part of the noncompliance caused
by factors completely beyond the
violator's control (e.g., floods, fires, etc.)
[Comment: The following enforcement
options, while not mandatory, are highly
recommended:
(i) Procedures for assessment by the
State Director or by a State court of the
costs of an investigation, inspection, or
monitoring survey which led to the
establishment of the violation;
(ii) Procedures which enable the State
Director to assess or to sue any person
responsible for an unauthorized
discharge for any expenses incurred by
the State in removing, correcting, or
terminating any adverse effects upon
water quality resulting from the
unauthorized discharge, whether or not
accidental; and
(iii) Procedures which enable the State
Director to sue for compensation for any
loss or destruction of wildlife, fish, or
aquatic life, and for any other actual
damages caused by an unauthorized
discharge either on behalf of the State,
on behalf of any residents of the State
who are directly aggrieved by the
unauthorized discharge, or both.]
Subpart E—Planning and Conflict of
Interest Requirements.
§ 123.41 Continuing planning process.
Any State permit program shall have
an approved continuing planning
process under 40 CFR Part 35, Subpart G
and shall assure that its approved
planning process is at all times
consistent with the Act.
§ 123.42 Agency board membership.
(a) Each State permit program shall
ensure that any board or body which
approves all or portions of permits shall
not include as a member any person
who receives, or has during-the previous
two years received, a significant portion
of income directly or indirectly from
permit holders or applicants for a
permit.
(b) For the purposes of this section:
(1) "Board or body" includes any
individuaVincluding the Director, who
has or shares authority to approve all or
portions of permits in the first instance,
as modified or reissued, or on appeal.
(2) "Significant portion of income"
shall mean 10 percent of gross personal
income for a calendar year, except that
it shall mean 50 percent of gross
personal income for a calendar year if
the recipient is over 60 years of age and
is receiving that portion under
retirement, pension, or similar
arrangement.
(3) "Permit holders or applicants for a
permit" shall not include any
department or agency of a State
government, such as a Department of
Parks or a Department of Fish and
Wildlife.
(4) "Income" includes retirement
benefits, consultant fees, and stock
dividends.
(c) for the purposes of this section,
income is not received "directly or
indirectly from permit holders or
applicants for a permit" where it is
derived from mutual fund payments, or
from other diversified investments over
which the recipient does not know the
identity of the primary sources of
income.
Subpart F—Procedures for Approval
of State Permit Programs
§ 12331 Section 402 approval process.
(a) After determining that a State
program submission is complete, EPA
shall publish notice of the State's
application in the Federal Register, in
enough of the largest newspapers hi the
State to attract statewide attention, and
mail notice to persons known to be
interested in such matters, including all
people on EPA mailing lists under
§ 124.41[b) and appropriate State
mailing lists and all permit holders and
applicants within the State. This notice
shall:
(1) Provide a comment period of not
less than 45 days during which
interested members of the public may
express their views on the State
program;
(2) Provide for a public hearing within
the State to be held no less than 30 days
after notice is published in the Federal
Register;
(3] Indicate the cost of obtaining a
copy of the State's submission;
(4) Indicate where and when the
State's submission may be reviewed by
the public;
(5) Indicate whom an interested
member of the public should contact
with any questions; and
(6) Briefly outline the fundamental
, aspects of the State's proposed program.
and the process for EPA review and -
decision.
(b} Within 90 days of the receipt of a
complete program submission under"
I 123.3 the Administrator shall approve
or disapprove the program based on the
requirements of this Part and of the Act
and taking into consideration all
comments received. A responsiveness
summary shall be prepared by the
Regional Office which identifies the
public participation activities
conducted, describes the matters
presented to the public, summarizes
significant comments received and
explains the Agency's response to these
comments.
(c) If the Administrator approves the
State's section 402 program he or she
shall notify the State and publish notice
hi the Federal Register. The Regional
Administrator shall suspend the
issuance of permits by EPA as of the
date of program approval.
(d) If the Administrator disapproves
the State program he or she shall notify
the State of the reasons for the
disapproval and of any revisions or .
modifications to the State program
which are necessary to obtain approval.
§ 123.52 Section 404 approval process.
(a) Within 10 day of receipt of a State
section 404 program submission under
§ 123.3 of this Part, the Administrator
shall provide copies of the State's
submission to the Corps of Engineers,
the U.S. Fish and Wildlife Service, and
the National Marine Fisheries Service.
(b) After determining that a State
program submission is complete, EPA
shall publish notice of a State's
. application in the Federal Register, in
enough of the largest newspapers hi the
State to attract Statewide attention, and
mail notice to persons known to be
interested in such matters, including all
people on appropriate State, EPA, and
Corps of Engineers mailing lists and all
permit holders and applicants within the
State. This notice shall:
(1) Provide a comment period of not
less than 45 days during which
interested members of the public may
express their views on the State
program;
(2) Provide for a public hearing within
the State to be held no less than 30 days
after notice is published in the Federal
Register;
(3) Indicate the cost of obtaining a
copy of the State's submission;
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32927
(4) Indicate where and when the
State's submission may be reviewed by
the public;
(5) Indicate whom an interested
member of the public should contact
with any questions; and
(6) Briefly outline: the fundamental
aspects of the State's proposed program,
and the process for EPA review and
decision. ,
(c) Within 120 days of the receipt of a
complete program submission under
§ 123.3 the Administrator shall approve
or disapprove the program based on the
requirements of this Part and of the Act
, and taking into consideration all
comments received. A responsiveness
summary shall be prepared by the
Regional Office which identifies the
public participation activities
conducted, describes the matters
presented to the public, summarizes
significant comments received and
explains the Agency's response to these
comments.
(d) If the Administrator approves the
State's section 404 program he or she
shall notify the State and the Secretary
and publish notice in the Federal
Register. The Secretary shall suspend
the issuance of section 404 permits by
the Corps of engineers within the State,
except for those waters specified in
section 404(g)(l) of the Act as identified
in the Memorandum of Agreement
between the State and the Secretary
(see § 123.5(a)).
(e) If the Administrator disapproves
the State program he or she shall notify
the State of the reasons for the
disapproval and of any revisions or
modifications to the State program
which are necessary to obtain approval.
Subpart G—Revisions to Approved
Programs
§ 123.61 Procedure for revision of State
permit programs.
(a) Program revision may be initiated
at the request of either EPA or the State.
Program revision may be necessary
when the controlling Federal or State
statutory or regulatory authority is
modified or supplemented. The State
Director shall keep EPA fully informed
of any proposed modifications to its
basic statutory or regulatory authority or
its forms, procedures or priorities.
(b) Revision of a State program shall
be accomplished as follows:
(1) The State shall submit a modified
program description. Attorney General's
Statement, Memorandum of Agreement,
or other documents as are necessary
under the circumstances.
(2) If EPA determines that the
proposed program modification(s) is
substantial, the Agency shall issue
public notice and provide at least 30
days for the public to comment The
public notice shall be mailed to
interested persons and shall be
published in enough of the largest
newspapers in the State to attract
statewide attention. The public notice
shall summarize the proposed
modifications and provide for the
opportunity to request a public hearing.
A hearing will be held if there is
significant public interest.
• (3) The program modification shall
become effective upon the approval of
the Administrator. Notice of approval of
substantial program modifications shall
be published in the Federal Register.
Non-substantial program modifications
may be approved by a letter from the
Agency.
(c) The State Director shall notify EPA
whenever the State proposes to transfer
all or part of any program from the
approved State agency to any other
agency, and shall identify any new
division of responsibilities among the
agencies involved. The new agency is
not authorized to administer the
program until approved by the
Administrator. Organizational charts
required under § 123.4(b) shall be
revised and resubmitted.
(d) If the Administrator has reason to
believe that circumstances may have
changed with respect to a State
program, he or she may request, and the
State shall provide a supplemental
Attorney General's Statement, program
description, other document or
information as necessary.
§ 123.62 NPDES program revisions under
the Clean Water Act of 1977.
(a) Approved State NPDES permit
programs shall be revised, if necessary:
(1) To include authority to require
permits for the discharges specified in
sections 318 and 405(a) of the Act (see
§ 123.1[b)J.
(2) To ensure that permits comply
with the requirements of section 304(e)
of the Act and Part 125, Subpart K (best
management practices].
(3) To comply with the amendment to
section 4Q2[b)(8) of the Act, and with 40
CFR Part 403 (pretreatment programs).
(4) To authorize State issuance,
monitoring (including reporting, entry,
and inspection), and enforcement of
permits to Federal facilities to the same
extent as any person.
[Comment: Facilities on Indian lands are not
necessarily Federal facilities.]
(b) All new programs must comply
with these regulations upon approval.
Any approved State section 402 permit
program which requires modification to
conform to this Part shall be so modified
within one year of the date of
promulgation of these regulations,
unless a State must amend or enact a
statute in order to make the required
modification in which case such
modification shall take place within two
years, except that revision of State
programs to implement the requirements
of 40 CFR Part 403 (pretreatment) shall
be accomplished as provided in 40 CFR
§ 403.10. In addition, approved States
shall submit, within six months, copies
of their permit forms for EPA review and
approval.
[Comment: EPA anticipates that many
approved States may need to revise their
permit forms to comply with these
regulations, particularly 1122.14.]
(c) Failure of an approved State to
modify its permit program under this
section constitutes grounds for
withdrawal of program approval.
6. Part 124 is revised to read as
follows:
PART 124—PROCEDURES FOR
DECISIONMAKING REGARDING
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM PERMITS
Subpart A—Applicability
Sec.
124.1 Purpose and scope.
124.2 Definitions.
Subpart B—The Application Process
124.11 Application for a permit.
124.12 Special provisions for applications
from new sources.
124.13 Requests for modification, revocation
and reissuance, or termination.
124.14 Permits required on a use-by-case
basis.
124.15 Decisions on permit denials and
terminations.
Subpart C—State Certification
124.21 Circulation of applications and draft
permits to certifying States.
124.22 State certification.
124.23 Effect of State certification.
124.24 Special provisions for State
certification and concurrence in
applications for section 301(h)
modifications.
Subpart D—Preparation of a Draft Permit
124.31 Draft permit after application.
124.32 Other draft permits.
124.33 Statement of basis.
124.34 Fact sheet.
124.35 Administrative record for EPA draft
permits.
124.36 Applicability of Subpart D to draft
permits incorporating section 301(h)
modifications.
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32928 -Federal Register / Vol. 44. No. Ill / Thursday, June 7, 1979 / Rules and Regulations
Subpart E—Public Comment and Hearings
124.41 Public notice regarding permits and
permit hearings.
124.42 Public comments^ and hearings.
124.43 Obligation to raise points and
provide information during the comment
period.
124.44 Terms requested by the Corps of
Engineers and other governmental
agencies.
124.45 Reopening of comment period.
Subpart F—Special Provisions for
Variances and Statutory Modifications
124.51 Time deadlines for applications for
variances from and modifications of
effluent limitations.
124.52 Decisions on variances and
modifications.
124.53 Procedures for variances and
modifications where EPA is the permit
issuing authority.
124.54 Appeals of modifications and
variances.
124.55 Special provisions for modifying the
secondary treatment requirements under
section 301(h).
124.56 Special procedures for decisions on
thermal variances (section 316(a)).
Subpart G—Issuance and Effective Date of
Permit
124.61 Issuance and effective date of permit;
stays.
124.62 Final Environmental Impact
Statement.
124.63 Response to comments.
124.64 Administrative record for final
permit issued by EPA,
Subpart H—Evidentiary Hearings for EPA-
Issued Permits
124.71 Applicability.
124.72 Definitions.
124.73 Filing and submission of documents.
124.74 Requests for evidentiary hearing.
124.75 Decision on request for a hearing.
124.76 Obligation to raise issues and submit
evidence before a final permit is issued.
124.77 Notice of the grant of a hearing.
124.78 Ex parte communications.
124.79 Additional parties and issues.
124.80 Filing and service.
124.81 Assignment of Administrative Law
Judge.
124.82 Consolidation and severance.
124.83 Prehearing conferences.
124.84 Summary determination;
124.85 Hearing procedure.
124.86 Motions.
124.87 Record of hearings.
124.88 Proposed findings of fact and
conclusions; brief.
124.89 Decisions.
124.9O Interlocutory appeal.
124.101 Appeal to the Administrator.
Subpart I—Non-Adversary Procedures for
Initial Licensing
124.111 Applicability.
124.112 Relation of other Subparts.
124.113 Public notice regarding draft permits
and permit conditions.
124.114 Hearings.
124.115 Effect of denial or absence of
request for hearing.
124.116 Notice of hearing.
124.117 Request to participate in hearing.
124.118 Submission of written comments on
draft permit.
124.119 Presiding Officer.
124.120 - Panel hearing.
124.121 Opportunity for cross-examination.
124.122 Record for final permit.
124.123 Filing of brief, proposed findings of
fact and conclusions of law and
proposed modified permit
124.124 Recommended decision.
124.125 Appeal from or review of
recommended decision.
124.126 Final decision.
124.127 Final decision if there is no review.
Subpart J—Miscellaneous
124.131 Public access to information.
124.132 Delegation of authority, time
limitations.
124.133 EPA Headquarters' approval of
stipulation or consent agreement.
124.134 Additional time after service by
mail.
124.135 Effective date of Part 124.
Authority.—Clean Water Act. as amended
by the Clean Water Act of 1977, 33 UJS.C.
1251 et seq; Administrative Procedure Act, 5
U.S.C. 551 et seq.
Subpart A—Applicability
§ 124.1 Purpose and scope.
This Part specifies the procedures
governing EPA's issuance of NPDES
permits and permit appeals. The
portions of this Part listed in § 123.12
apply to State permit programs
approved under Part 123. This Part
organizes permit decisions into a
sequence of seven procedural stages."
First, an application must be made in
proper form (Subpart B). This
application will then be circulated to
affected States for certification or the
State will certify the draft permit under
section 401 (Subpart C]. EPA will then
prepare a draft permit or permit denial
(Subpart DJ, which will be made
available for public comment (Subpart E
or I). This is the stage for interested
governmental agencies, other than
certifying States, to express their views
of the permit. After these comments
have been considered, EPA will issue a
final permit (Subpart G or I), and any
interested person may then request an
evidentiary hearing on any factual
questions involved. The initial decision
made after that hearing may then be
appealed to the Administrator. Under
Part 124, decisions on variance requests
will ordinarily be made during the
permit issuance process (Subpart F).
Requests for permit modifications and
other changes in permit terms will be
made where possible, through the same
procedures that apply in making
decisions on initial permits. Each such
decision must move through the same
procedures of notice-and-comment and
potential hearings as the basic permit.
§ 124.2 Definitions.
(a) The definitions of Parts 122,123
and 125 apply to this Part
(b) "BAT' or "Best Available
Technology" means the level of
treatment of best available technology
economically achievable as determined
by the Administrator.
Subpart B—The Application Process
§124.11 Application for a permit
(a) Any person who discharges or
proposes to discharge pollutants, except
persons covered by general permits
under § 122.48, or excluded under
§ 122.4, shall complete, sign, and submit
an application to the Regional
Administrator, in accordance with Part
122, Subpart B.
(b) Expect as provided by § 124.32(a)
no NPDES permit other than a general
permit shall be issued until the applicant
has filed a complete application that
complies with the filing requirements in
this Subpart and Part 122. If an applicant
fails or refuses to correct deficiencies in
its NPDES application form, the permit
may be denied or appropriate
enforcement action may be taken under
sections 308, 309, or 402(h) of the Act.
(c) Permit applications shall comply
with the signature and certification
requirements of § 122.5.
(d) If the Director determines that
further information or a site visit is
necessary in order to evaluate the
discharge completely and accurately,
the applicant shall be notified and a
date shall be scheduled for receipt of the
requested information and for any
necessary site visit.
(e) Special procedures for applications
for variances and statutory
modifications are provided in Subpart F.
§ 124.12 Special provisions for
applications from new sources.
(a) The owner or operator of any
'facility which may be a new source as
defined in 1122.3(v) and which is
located in a State without an approved
NPDES program must comply with the
provisions of this section in addition to
the requirements of § 124.11.
(b](l) Before beginning any on-site
construction as defined in § 122.47, the
owner or operator of any facility which
may be a new source must submit
information to the Regional
Administrator so that he or she can
determine if the facility is a new source.
The Regional Administrator may request
any additional information needed to
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Federal Register / VoL 44, No. Ill / Thursday, June 7, 1979 / Roles and Regulations
32929
determine whether the facility is a new
source.
(2) The Regional Administrator shall
make an initial determination whether
the facility is a new source within 30
days of receiving all necessary
information under paragraph (b)(l).
(c) The Regional Administrator shall
issue a public notice in accordance with
§ 124.41 of the new source determination
under paragraph (b). The notice shall
state that the applicant, if determined to
be a new source, must comply with the
environmental review requirements of
40 CFR | 6.900 et seq.,
(d) Any interested person may
challenge the Regional Administrator's
initial new source determination by
requesting an evidentiary hearing under
§ 124.74 within 30 days of issuance of
the public notice of the initial
determination. The Regional
Administrator may defer the evidentiary
hearing on the determination until after
a final permit decision is made under
§ 124.61, and consolidate the hearing on
the determination with any hearing on
the permit
§124.13 Requests for modification,
- revocation, and reissuance, or termination.
(a) If a discharger with a permit or an
interested person believes that a
modification, revocation or reissuance,
or termination is justified under the
standards of § 12Z31, it may request a
modification, revocation and reissuance,
or termination from the Director in
writing. The request shall set forth all
facts or reasons known to the requester -
which may be relevant to a decision on
the modification request
(b)(l) If the Director agrees that the
modification or revocation and
reissuance request appears to meet the
requirements of § 122.31, the Director
shall formulate a draft permit under
5 124.32 incorporating the changes. If
additional information is needed to ',
prepare a draft permit, the Director may
request it under § 124.11(d) or in
appropriate cases may require the
submission of a complete new permit
application under § 124.11(a). When a
request for a modification under this
section is granted and a new draft
permit is formulated, only those terms
dependent on the request will be
reopened. All other aspects of the permit
will remain in force until the expiration
of the permit. If the permit is revoked
and reissued, the draft permit is subject
to the same procedures as if the permit
had expired and was being reissued.
(2) If the Director agrees that the
termination request appears to meet the
requirements of § 122.31, the Director
shall prepare a notice of intent to
terminate under § 124.32.
(3) If the Director decides that the
modification request does not appear to"
meet the requirements of § 122.31 the —,
Director shall reply in-writing to the
discharger (and the person requesting
the modification, if different) briefly
setting forth in writing the reasons for
that decision.
§ 124.14 Permits required on a case-by-
case basis.
(a) Various sections of Part 122 allow
the Director to determine, on a case-by-
case basis, that certain concentrated
animal feeding operations (§ 122.43),
aquatic animal production facilities
(§ 122.44), separate storm sewers
(1122.46), and certain other facilities
covered by general permits (§ 122.48)
that do not generally require individual
permits may be required to obtain one
because of their contribution to water
pollution.
(b) Whenever the Regional
Administrator decides that an individual
permit should be required under this
section, the Regional Administrator
shall inform the discharger hi writing of
that decision, the reasons underlying it
and shall include an application form hi
such notice. The discharger must apply
under § 124.11 for a permit within 60
days of such notice. The question
whether the initial designation was
proper will remain open for
consideration during the public
comment period under Subpart D and
--any subsequent hearing.
§124.15 Dedsiora on permit denials and
terminations.
(a) The decision to deny a permit
which has been applied for shall be
made through the same procedures as
any other decision on a permit A draft
notice of intent to deny will be issued
and made available for public comment
accompanied by a fact sheet or
statement of basis. A response to
comments and final decision will then
be prepared, and an evidentiary hearing
with a right of appeal to the
Administrator may be requested on the
issues raised.
(b) The decision to terminate a permit
shall be made through the same
procedures that apply to any other
permit action initiated by EPA under
§ 124.32.
(c) References to a "permit" or to
decisiorunaking on a permit in this Part
shall be read to include decisions on
permit denial or termination where
necessary to carry out the intent of this
section.
Subpart C—State Certification
§ 124.21 Circulation of applications or
draft permits to certifying States.
(a) Under section 401(a)(l) of the Act
EPA may not issue a permit until a —
certification is granted or waived in
accordance with that section by the
State in which the discharge originates
or will originate.
(b) When an application is received
which does not include a State
certification, the Regional Administrator
shall forward the application to the
certifying State agency with a request
that certification be granted or denied.
(c) If State certification has not been
received by the time the draft permit is
prepared, the Regional Administrator
shall send the certifying State agency:
(1) A copy of the draft permit;
(2) A statement that the EPA cannot
issue or deny the permit until the
certifying State agency has granted or
denied certification under § 124-22, or
waived its right to certify; and
(3) A statement that the right to certify
will be deemed waived unless exercised
within a specified reasonable time
which shall not exceed 60 days from the
date the draft permit is sent to the State
unless the Regional Administrator finds
that unusual circumstances require a
longer time.
§124.22 State certification.
(a) Any State certification shall be
issued or denied within the reasonable
time specified under § 124.21(c)f3). The
State shall provide notice of its action,
including a copy of any certification, to
the applicant and the Regional
Administrator.
(b] A State certification shall be made
hi writing and shall include:
(1) The terms and conditions which
will result in compliance with the
applicable provisions of sections 208(e),
301, 302, 303,306, and 307 of the Act and
with appropriate requirements of State
law,
(2) Where the State certifies a draft .
permit instead of an application, any
conditions, more stringent than those in
the draft permit which the State finds
necessary to comply with the
requirements listed in paragraph (b)(l)
of this section. For each such condition,
the provision of the Act or State law
which forms the basis for the condition
shall be identified. Failure to provide
such a statement shall be deemed a
waiver of the right to certify with
respect to such condition; and
(3) A statement with respect to each
term and condition of the draft permit of
the extent to which such term or
condition can be made less stringent
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32930 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
without violating the requirements of
State law including water quality
standards. Failure to provide such a
statement shall be deemed a waiver of
the right to certify with respect to any
such less stringent term or condition
which may be established during the
EPA permit issuance process.
[Comment: The requirement of paragraph
(b](3) of this section is necessary to'enable
the certification to serve its statutory function
without requiring continual resubmission to
the State. For example, a State might certify
that a draft permit containing a technology-
based limitation of 300 kg/day of BOD will
meet State water quality standards and other
State law requirements. However, if during
the permit issuance process EPA decides that
400 kg/day is the appropriate technology
requirement, it is not clear at present whether
the previous State certification continues to
be valid. It would be impracticable and
would add to delay in permit issuance if EPA
resubmitted such permits to the State each
time EPA considered setting a less stringent
limitation than contained in the draft permit
The requirement that States clearly identify
what conditions are necessary to meet State
law will simplify the permit issuance process
and make certification more useful. However,
States may not require EPA to adopt less
stringent requirements. See § 124.23(c).]
§ 124.23 Effect of State certification.
(a) Where certification is required
under section 401(a)(l) of the Act, no
final permit shall be issued:
(1) If certification is denied, or
(2) Unless the final permit
incorporates any requirements specified
in the certification under § 124.22(b)(l)
and (2).
(b) If the State law upon which a
certification is based changes, or if a
State court stays, vacates, or remands a
certification, a State which has issued a
certification under § 124.22 may issue a
modified certification or notice of
waiver and forward it-to EPA. If the
modified certification is received prior
to final Agency action on the permit, the
permit shall be issued consistent with
any more stringent conditions which are
bgsed upon State law identified in such
certification. If the certification or notice
of waiver is received after final Agency
action on the permit, the Regional
Administrator may modify the permit
only to the extent necessary to delete ,
any conditions based on a condition in a
certification found invalid by a State
court
(c) A State may not condition a
certification or deny a certification on
the grounds that State law requires a
less stringent condition. The Regional
Administrator shall disregard any such
certification conditions, and will
consider such denials of certification to
constitute waivers of certification.
[Comment State certification rights proceed
from the authority of States under section 510
of the Act to set more stringent limitations
than those required by the Act States may
not require EPA to disregard or downgrade
Federal requirements.]
(d) A permit may be modified during
Agency review in any manner consistent
with a certification meeting the
requirements of § 124.22(b). No such
modifications shall require EPA to
submit the permit to the State for
recertification.
(e) Review and appeals of conditions
specified by the State shall be made
through the applicable procedures of the
State and may not be made through the
procedures in this Part
§ 124.24 Special provisions for State
certification and concurrence in
applications for section 301 (h)
modifications.
(a) Where an application for a permit
incorporating a request under 301(h) of
the Act is submitted to the State, the
appropriate State official may either
(1) Deny the request for the modified
permit under section 301(h) (and so
notify the applicant and EPA) and if the
State is an approved NPDES State and
the permit is due for'reissuance, proceed
to process the permit application under
normal procedures; or ;
(2) Forward a certification meeting the
requirements of this Subpart to the
Administrator or a person designated by
the Administrator.
(b) Where EPA issues a tentative
determination on the request for a
modified permit under section 301(h),
and no certification has been received
under paragraph (a), the Administrator
or a person designated by the
Administrator shall forward the
tentative determination to the State in
accordance with § 124.21(c) specifying a
reasonable time for State certification
and concurrence. If the State fails to
deny or grant certification and
concurrence under paragraph (a) within
such reasonable time, certification will
be deemed to be waived and the State
will be deemed to have concurred in the
issuance of a modified permit under
section 301(h).
(c) Any certification provided by a
State under paragraph (a)(2) shall
constitute the State's concurrence (as
required by section 301(h)) in the
issuance of the section 301(h) modified
permit subject to any conditions
specified therein by the State.
[Comment: Section 301(h) certification/
concurrence under this section will not be
forwarded to the State by EPA for
recertification after the permit issuance
process. Accordingly, States must specify any
conditions required by State law, including
water quality standards, in the certification.]
Subpart D—Preparation of Draft
Permit
§124.31 Draft permit after application.
(a] If a permit has been properly
requested under § 124.11, the Director,
after analyzing the data and other .
information concerning a permit
furnished under Subparts B and C, and
any other relevant information, shall
tentatively decide whether to issue or
deny the permit. Any Environmental
Impact Statement prepared under 40
CFR § 6.912, and any other applicable
factors listed in 40 CFR § 6.920, shall be
considered by the Regional
Administrator in deciding whether to
issue a permit for a new source under
this section.
(b) If the Director tentatively decides
to issue a permit, a draft permit shall be
prepared containing:
(1) All conditions, limitations, or
requirements specified in § 122.14;
(2) All effluent limitations, standards,
prohibitions, and conditions required by
§ 122.15, including, where applicable,
any conditions certified by a State
agency under Subpart C, and all
variances or other modifications that are
to be included under Subpart F. All
effluent limitations and standards shall
be calculated and specified as required
by §122.16;
. (3) All compliance schedules required
by § 122.17; and
(4) All monitoring requirements
required by § 122.20.
(c) Any draft permit formulated by
EPA shall be based on the
administrative record required by
§124.35.
(d) If the Regional Administrator
determines under 40 CFR § 6.910 that an
EIS shall be prepared for a new source
the public notice of the draft permit
under this section shall occur at the
same time or after a draft EIS is issued.
§124.32 Other draft permits.
(a) In the following cases the Director
may formulate a draft permit without
having received an application from a
discharger.
(1) If the Director decides that a
^permit should be modified, or revoked
and reissued under § 122.31, the Director
shall formulate a draft permit reflecting
the modifications or a draft reissued
permit including a notice of intent to
revoke the existing permit. If the
Director decides that a permit should be
terminated, the Director shall issue a
notice of intent to terminate.
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Federal Register / Vol. 44. No. Ill / Thursday. June 7. 1979 / Rules and Regulations 32931
(2) General permits to be issued either
by EPA or by States under f 122.43 shall
be proposed in draft form, shall contain
the designation of the General Permit
Program Area (as defined in
§ 122.48(a)(2)) and, except for general
permits for separate storm sewers, shall
be sent to the EPA Deputy Assistant
Administrator f(jr Water Enforcement
for concurrence or objection during the
public comment'period. No final permit
shall be issued if the EPA Deputy
Assistant Administrator for Water
Enforcement objects to the general
permit Such objection must be made
within 90 days from the date of
publication of the public notice for the
draft general permit under § 124.41{f).
(b) Any draft permit or notice of intent
to revoke or terminate, issued under
paragraph (a), shall be based on the
administrative record defined in
5124.35. _...
§ 124.33 Statement of basis.
A statement of basis shall be prepared
for every draft permit formulated under
§ § 124.31 or 124.32 where a fact sheet is
not required under § 124.34. The
statement of basis shall briefly describe
the derivation of the terms and
conditions of the permit and the reasons
for them. For instance, if effluent
limitations in a permit are based upon
the application of treatment
technologies, the statement of basis
shall identify the technologies and the
degree of effluent reduction or control
which the treatment technologies are
assumed to achieve. The statement of
basis shall be part of the administrative
record and shall be made available to
the discharger and other members of the
public on request
§ 12444 Fact sheet.
(a) A fact sheet shall be prepared for
' every draft permit for a major discharger
(as established in EPA's annual
operating guidance for EPA Regional
Offices and the States), any draft permit
which incorporates a variance or
modification, general permits tinder
§ 124.48, and every draft permit which"
the Regional Administrator or State
Director finds is the subject of
widespread public interest or raises
major issues. The fact sheet shall briefly
set forth the major facts and the
significant factual, legal,
methodological, and policy questions
considered in getting the terms of the
draft permit The Director shall send this
fact sheet to the applicant, to the District
Engineer of the Corps of Engineers, to
the Regional Director of the U.S. Fish
and Wildlife Service and the National
Marine Fisheries Service, to other
interested State and Federal agencies,
(including EPA where the draft permit is
prepared by the State) and to any other
person on request Any of these persons
may waive their right to receive a fact
sheet for any classes and categories of
permits.
(b) The fact sheet shall include: (1) A
brief explanation of the express
statutory or regulatory provisions on
which permit requirements are based,
and for permits issued by EPA,
appropriate supporting references to the
administrative record required by
§124.35;
(2) Any calculations or other
necessary explanation of the derivation
of specific effluent limitations and
conditions, including a citation to the
applicable guideline or development
documents or standard provisions as
required under § 122.15 and reasons
why they are applicable or an
explanation of how the alternate
effluent limitations were developed:
' (3) Where appropriate, a sketch or
detailed description of the location of
the discharge described in the
application;
(4) A quantitative description of the
discharge described in the application;
(5) Reasons requested variances or
modifications do or do not appear
justified;
(8) For EPA-issued permits the results
of any State certification under Subpart
C;
(7) Name and telephone number of a
person who can provide additional
information; and
(8) Any information, not otherwise
specified herein, required by 5124.33.
§124^5 Administrative record for EPA
draft permits.
(a) Decisions by the Regional
Adminstrator to formulate a draft permit
under § 124.31 or § 124.32 shall be made
on the basis of the administrative record
defined in this section.
(b) The record for a draft permit under
§ 124.31 shall consist of:
(1) The initial application and any
supporting data furnished by the
applicant;
(2) The draft permit;
(3) The statement of basis required by
§ 124.33 or fact sheet prepared under
§ 124.34-
(4) All documents cited in the fact
sheet or the statement of basis;
(5) Other documents contained in the
supporting file for the permit, including
correspondence, telephone and meeting
memoranda, compliance reports, etc;
(6) All comments submitted on a new
source determination under § 124.12,
and any other documents EPA considers
relevant to the determination; and
(7) Any environmental assessment
Environmental Impact Statement,
negative declaration, or environmental
impact appraisal that may have been
prepared.
(c) The record for formulating a draft
permit under § 124.32 shall consist of the
draft permit the statement of basis
required by § 124.33 or fact sheet
prepared under § 124.34 and all
documents cited in the fact sheet or the
statement of basis.
(d) Material readily available at the
Issuing Regional Office or published
material which is generally available,
and which is included in the
administrative record under the
standards of paragraphs (b) and (c),
does not need to be physically included
in the same file as the rest of the record
as long as it is specifically referenced in
the statement of basis or the fact sheet
(e) No later than the time a draft
permit is issued, a Record Clerk shall be
designated with responsibility for
maintaining the records established
under this section. Copying of any
documents in the record shall be
allowed under appropriate
arrangements to prevent their loss. The
charge for such copies shall be made in
accordance with the written schedule
contained in 40 CFR Part 2.
[Comment: The administrative record for
draft permits under this section will comprise
the bulk of the material for the final
administrative record. See § 124.64.]
§124.36 Applicability of Subpart O to draft
permits incorporating section 301(h)
modifications.
Subpart D is applicable to draft
permits incorporating section 301 (h)
modifications except that the terms
"Administrator or a person designated
by the Administrator" shall be
substituted for the terms "Regional
Administrator" as appropriate.
Subpart E—Public Comment and
Hearings
§ 124.41 Public notice regarding permits
and permit hearings.
(a) Notices shall be circulated in a
manner designed to inform interested
persons of a hearing or determination
dealing with permit denial or issuance.
Notice of a draft permit shall allow at
least 30 days for public comments and
notice of a hearing shall be given 30
days before the hearing.
[Comment: At the discretion of the Director,
this could include press releases or the use of
additional means to elicit public
participation!]
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.32932 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
fb) Notice of the formulation of any
draft permit and.notice of all hearings
shall be given by the Director;
(1) By mailing a copy to the applicant;
to the U.S. Army Corps of Engineers, to
Federal and State agencies with
jurisdiction over fish, shellfish and
wildlife resources and to other
appropriate governmental authorities
including any affected State; to any
person on request and to all persons on
a mailing list developed from those who
request to be on the list and by using the
following methods:
(i) Soliciting persons for "area lists"
from participants in past permit
proceedings in that area; and
pi) Notifying the public as to the
availability of mailings of public notices
through periodic press publication and
notices in such publications as Regional
and State funded newsletters,
environmental bulletins or State Law
Journals. The mailing list may be
updated from time to time by requesting
an indication of continued interest in
being on the mailing list; and
(2) By any of the following methods:
(i) By publication of a notice meeting
the requirements of paragraph (c) in a
daily or weekly newspaper within the
area affected by the discharge; or
(ii) By posting a copy of the
information required under paragraph
(c) and (d) at the principal office of the
municipality or political subdivision
affected by the facility or discharge, and
by posting a copy at the United States
Post Office serving those premises;-or
(iii) Where the State is the permit
issuing authority in any other manner
constituting legal notice under State law.
(3) Any person otherwise entitled to
receive notice under paragraph (1) of
this section may waive the right to
receive notice for any classes and
categories of permits.
(c) All public notices issued under this
section shall contain the following
information:
(1) Name and address of the office
processing the application or conducting
the hearing;
(2) Except in the case of general
permits, name and address of the
applicant and the discharger (if different
from the applicant) and a general
description of the location of each
existing or proposed discharge point,
including the receiving water;
(3) Name of a person, and an address
and telephone number where interested
persons may obtain further information,
including copies of the draft permit, the
statement of basis or fact sheet;
(4) For EPA-issued permits, the
location of the administrative record
required by § 124.35 and the times at
which it will be open for public
inspection;
(5) If the applicant has properly
applied under section 316(a) for a
thermal variance, a statement to that
effect The notice shall state that all
data submitted by the applicant are
"available as part of the administrative
. record for public inspection during office
hours. The notice shall also state that
any person may comment in writing
under § 124.42 upon the applicant's
desired alternative effluent limitations
and may also request a hearing.
(d) Mailed public notice to those
identified in paragraph (b)(l) shall
contain the information required under
paragraph (c) and the following:
(1) A brief description of the
applicant's activities or operations that
result in the discharge described in the
application, and a statement whether
the application pertains to a new or
existing discharge;
(2) A brief description of the comment
procedures required by § 124.42,
including the time and place of any
public hearing that will be held.
(3) If the discharge is from a new
source, a statement of the Regional
Administrator's decision as to whether
an Environmental Impact Statement will
be or has been prepared.
(4) A statement of the right and
procedures to request a public hearing.
(e) In addition to the information
required by paragraphs (c) and (d)
above, mailed public notice of a draft
permit for a discharge where a section
316(a) application has been filed under
§ 124.51(b)(6) shall include:
(1) A statement that the thermal
component of the discharge is subject to
effluent limitations under'sections 301 or
306 of the Act and a brief description
including a quantitative statement of the
thermal effluent limitations proposed
under sections 301 or 306; and
(2) A statement that a section 316(a)
application has been filed and that
alternative less stringent effluent
limitations may be imposed on the
thermal component of the discharge1
under section 316(a) and a brief
description including a quantitative
statement of the alternative effluent
limitations, if any, included in the
application.
(3) If the applicant has filed an early
screening application for Bisection
316(a) variance under § 125.72, a
statement that the applicant has
submitted such a plan.
(f) Notice of the formulation of a draft
general permit and the issuance of a
final general permit under § 122.48 shall
meet:
(1) The requirements of paragraphs (c)
and (d) and shall be published in a daily
or weekly newspaper within the area
affected by the discharge and in the '
Federal Register for EPA-issued permits
or in a manner constituting legal notice
under State law for State-issued permits.
(2) The public notice for general
permits shall also include:
(i) A brief description of the types of
activities or operations to be covered by
the general permit;
(ii) A map or description of the
General Permit Program Area; and
(iii) The basis for choosing the
General Permit Program Area.
(3) The Director shall use all other
reasonable means to notify affected
dischargers of the draft and final general
permit
(g) In addition to the information
required under paragraph (c), public
•notice of a public hearing held under
§ 124.42(b) shall contain the following
information:
(1) Reference to the date of the public
notice of the draft permit;
(2) Date, time and place of the
hearing; and
(3) hi the case of a mailed public
notice, a brief description of the nature
and purpose of the hearing, including the
applicable rules and procedures.
(h) A public notice of the grant of an
evidentiary hearing under Subpart H
shall contain the information required
under paragraph (c), (g)(l), (g)(3) and a
mailed public notice of such a hearing
shall also include:
(1) Reference to any public hearing
under 1124.42 on the disputed permit;
(2) Name and address of the person(s)
requesting the evidentiary hearing;
(3) Brief description of the permit
terms and conditions which have been
contested and for which the evidentiary
hearing has been granted;
(4) Brief description of the nature and
purpose of the hearing including the
following declarations:
(i) Any person seeking to be a party
must file a request to be admitted as a
party to the hearing within 15 days of
the date of publication of this notice;
(ii) Any person seeking to be a party
may, subject to the requirements of
§ 124.76., propose material issues of fact
or law not already raised by the original
requester or another party;
(iii) The terms and conditions of the
permit(s) at issue may be amended after
the evidentiary hearing and any person
interested in those permit(s) must
request to be a party in order to
preserve any right to appeal or
otherwise contest the final
administrative determination.
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Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations 32933
;'(5) Names or organizational
description of the EPA employees who
shall constitute "Agency trial staff" and
the "decisional body" under 1124.78
_who are subject to the ex parte
communication rules.
(6) The name, address and office
telephone number of the Regional
Hearing Clerkj
(i) A public notice for a draft permit
that will be processed under Subpart I
shall include the information in
paragraphs (c) and a statement that any
hearing will be held under the non-
adversary initial licensing procedures. In
addition, a mailed public notice shall
include:
(!) The information in paragraph (d)
except that a public hearing under
paragraph (d)(2) is discretionary with
the Regional Administrator;
(2) A statement that the permit will be
processed under the nonadversary
procedures for initial licensing of
Subpart I, together with a brief
description of those procedures. This
description shall state explicitly the
manner and timing for any person to
request a hearing on the permit If EPA -
has decided on its own motion to hold a
hearing, the notice shall so state, and
shall also contain the information
required by § 124.41ft');
(3) A statement that written comments
on the draft permit and, in the case of a
section 301 (h) application, the tentative
determination to grant or deny the
application submitted to EPA with thirty
(30) days of the date of the notice will be
considered by EPA in making a final
decision on the application. This 30-day
period may be extended up to 60 days
sua sponte or on request of an interested
party;
(4) to the case of the public notice of
the draft permit or denial of an
application for a modified permit under
section 301(h) shall include:
(i) A summary of the information
contained in the application; and
fii) A summary of the tentative
determination prepared under
1124.114(1),
(j) A notice of a grant of a panel
hearing requested under Subpart I shall
include the applicable information from
paragraph (i). In addition, the mailed
public notices shall include:
(1) Name and address of the person
requesting the hearing, or a statement
that the hearing is being held by order of
the Regional Administrator, and the
name and address of each known party
to the hearing;
(2) Names or organization description
of the EPA employees who shall
constitute the "decisional body" and the
"Agency trial staff," under 5124.78 who
are subject to the ex parte
communication rules;
(3) A statement whether the
recommended decision will be issued by
the Presiding Officer or by the Regional
Administrator;
(4) The due date for filing a written
request to participate in the hearing
under § 124.117;
(5) The due date for filing comments
under f124.118; and
(6) The name, address, and office
telephone number of the Regional
Hearing Clerk.
§ 124.42 Public comments and hearings.
(a) A comment period of at least 30
days following the date of public notice
of the formulation of a draft permit shall
be provided. During this period any
interested persons may submit written
comments on the draft permit and
administrative record and may request a
public hearing. A request for a public
hearing shall be in writing and shall
state the nature of the issues to be
raised. All comments shall be
considered in preparing the final permit
and shall be responded to as provided in
§ 124.63.
(b)(l) In appropriate cases, including
cases where there is significant public
interest the Director may hold a public
hearing on a draft permit or permits.
Public notice of that hearing shall be
given as specified hi § 124.41.
(2} Any person appearing at such a
hearing may submit oral or written
statements and data concerning the
draft permit Reasonable limits may be
set upon the time allowed for oral
statements, and the submission of
statements in writing may be required.
§ 124.43 Obligation to raise points and
provide information during the comment
period.
All persons, including applicants, who
believe any of the terms of a draft
permit are not appropriate either
because one of the variances or
modifications listed in Subpart F should
be granted or for some other reason,
must raise all reasonably ascertarnable
issues and submit all arguments and
factual grounds supporting their
position, including all supporting
material by the close of the public
comment period (including any public
hearing period) required by § 124.42.
§ 124.44 Terms requested by the Corps of
Engineers and other governmental
agencies.
(a) If the District engineer of the Corps
of Engineers advises the Director in
writing during the public comment
period that anchorage and navigation of
any of the waters of 1he United States
would be substantially impaired by the
granting of a permit, the permit shall be
denied and the applicant so notified. If
the District Engineer advises the
Director that imposing specified
conditions upon the permit is necessary
to avoid any substantial impairment of
anchorage or navigation, then the
Director shall include the specified
conditions in the permit. Review or
appeal of a denial of a permit or of
conditions specified by the District
Engineer shall be made through the
applicable procedures of the Corps of
Engineers, and may not be made through
the procedures provided in this Part.
fb) If during the comment period the
U.S. Fish and Wildlife Service, the
National Marine Fisheries Service, or
any State or other Federal Agency with
jurisdiction over fish, wildlife, or public
health advises the Director in writing
that the imposition of specified
conditions upon the permit is necessary
to avoid substantial impairment of fish,
shellfish, or wildlife resources, the
Director may include the specified
conditions in the permit to the extent
they are determined necessary to carry
out the provisions of the Act
(c) In appropriate cases the Director
may consult with one or more of the
agencies referred to in this section
before issuing a draft permit and may
reflect their views in the statement of
basis, the fact sheet or the draft permit
§ 124.45 Reopening of comment period.
If any information or arguments
submitted during the public comment
period, including information or
arguments whose submission is required
under § 124.43, appears to raise
substantial new questions concerning a
permit the Director may conclude that-
one of the following actions is necessary
for an informed decision:
(a) Formulation of a new draft permit
appropriately modified, under § 124.42;
(b) Preparation of a fact sheet or
revised fact sheet under § 124.34 and
reopening the comment period under
5 124.42; or
(c) Reopening of the comment period
under § 124,42 to give interested persons
an opportunity to comment on the
information or arguments submitted.
In each case the notice required by
§ 124.41 shall be given.
Subpart F—Special Provisions for
Variances and Statutory Modifications
§ 124.51 Time deadlines for applications
for variances from and modifications of
effluent limitations.
(a) Except as provided in paragraph
(d), applications for variances from and
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Federal Register / Vol. 44, No. HI / Thursday, June 7, 1979 / Rules and Regulations
modification of effluent limitations
under the statutory and regulatory
provisions of the Act shall be made as
provided in paragraph (b) and (c).
(b} Dischargers other than publicly
oivned treatment works. (1) A request
for a variance based on the presence of
"fundamentally different factors" from
those on which the effluent limitations
guideline was based, shall be made by
the close of the public comment period
under § 124.42. The request shall explain
why the requirements of § 124.43 and
Part 125, Subpart D have been met.
(2) A request for a variance from the
BAT requirements for section
301(b](2)(F) pollutants (commonly called
"non-conventional" pollutants] pursuant
to section 301(c) because of the
economic capability of the owner or
operator; or pursuant to section 301(g)
because of certain environmental
considerations, where those
requirements were based on effluent
limitation guidelines, must be made by:
(i) Submitting an initial application to
the Regional Administrator and the
State Director stating the name of the
applicant, the permit number, the outfall
number(s), the applicable effluent
guideline, and whether the applicant is
applying for a section 301(c) or section
301(g) modification or both. This
application shall be filed not later than:
(A) September 25,1978, for a pollutant
which is controlled by a BAT effluent
limitation guideline promulgated before
December 27,1977; or
(B) 270 days after promulgation of an
applicable effluent limitation guideline
for guidelines promulgated after
December 27,1977;
(ii) Submitting a completed request
demonstrating that the requirements of
§ 124.43 and the applicable requirements
of Part 125 have been met no later than
the close of the public comment period
under § 124.42. .
(iii) Requests for variance of effluent
limitations based on other than effluent
limitation guidelines, shall comply only
with paragraph (ii) and need not submit
an initial application under paragraph
W-
(3) An extension under section
301(i)(2) of the statutory deadlines in
sections 301(b)(l)(A) or (b](l)(C) based
on delay in completion of a publicly
owned treatment work into which the
source is to discharge must have been
requested on or before June 26,1978, or
180 days after the relevant publicly
owned treatment works requests an
extension under paragraph (c)(2) of this
section, whichever is later. The request
shall explain why the requirements of
Part 125, Subpart J have been met.
(4) An extension under section 301(k)
from the statutory deadline of section
301(b)(2)(A) for best available control
technology based on the use of
innovative technology may be requested
no later than the close of the public
comment period under § 124.42 for the
discharger's initial permit requiring
compliance with best available control
technology. The request shall explain
why the requirements of § 124.43 and
Part 125, Subpart C have been met.
(5) A modification under section
302(b)(2) of requirements under section
302(a] for achieving water quality
related effluent limitations may be
requested no later than the close of the
public comment period under § 124.42
on the permit from which the variance is
sought. The request shall explain why
the requirements of that section have
been met.
(6) A variance under section 316{a) for
the thermal component of any discharge
must be filed with a timely application
for a permit under § 124.11. If thermal
effluent limitations are established
under section 402(a)(l) or are based on
water quality standards the application
shall by filed by the close of the public
comment period under 1124.42. A copy
of the application as required under Part
125, Subpart H shall be sent
simultaneously to the appropriate State
or interstate certifying agencyrfSee
§ 124.56 for special procedures for
section 316(a] thermal variances.)
(c) Publicly owned treatment works.
(I) A preliminary application for a
modification under section 301(h) from
requirements of section 301(b)(l)(B) for
discharges into marine waters must
have been submitted to the Agency no
later than September 25,1978. A final
application must be submitted in
accordance with the filing requirements
of Part 125, Subpart G, after that Subpart
is promulgated, and shall demonstrate
on its face that all the requirements of
Part 125, Subpart G have been met (See
§ 124.55 for special rules for section
301 (h) modifications.)
(2) An extension under section
301(i}(lJ from the statutory deadlines in
sections 301(b}(l)(B) or (b](l)C) based
on delay in the construction of publicly
owned treatment works must have been
requested on or before June 26,197S.
(3) A modification under section
302(b)(2) of the requirements under
section 302(a) for achieving water
quality based effluent limitations may
be requested no later than the close of
the public comment period under
§ 124.42 on the permit from which the
modification is sought
(d)(l) Notwithstanding any later time
specified in paragraphs {b) and [c), the
Director may notify the applicant before
a draft permit is published pursuant to
§ 124.41 that the draft permit will likely
contain limitations which are eligible for
variances or modifications. In such
notice the Director may require the
applicant as a condition of
consideration of any potential variance
request to submit a full application
within a specified reasonable time
before the draft permit is formulated.
This notice can be sent before the
application under § 124.11 has been
submitted.
[Comment- This paragraph is intended to
reduce the time for permit issuance,
especially in those cases where it is clear that
a variance or modification will be applied for,
such as where the discharger has submitted a
variance application under § 124.51(b)(2)(i)
even before the permit application "is filed
under § 124.11.]
(2) A discharger who cannot file a
complete request required under
paragraphs (b](2)(ii), (b)(2)(iii), (b)(3)(ii)
or (b)(3)(iii) may request an extension to
apply. Extensions shall be limited to the
time the Director determines is
~ necessary to satisfy the requirements of
the appropriate regulations, but shall be
no more than six months in duration.
The request may be granted or denied in
the discretion of the Director.
§ 124.52 Decisions on variances and
modifications.
(a) The Director may grant or deny the
following modifications or variances
(subject to EPA objection under § 123.23
for State permits):
(1) Extensions under section 301(i)
based on delay in completion of a
publicly owned treatment works;
(2) After consultation with the
Regional Administrator, extensions
under section 301(k) based on the use of
innovative technology; or "
(3) Variances under section 316(a) for
thermal pollution.
(bj The State Director may deny, or
forward to the Regional Administrator
with a written concurrence or submit to
EPA without recommendation a
completed application for:
(1) A variance based on the presence
of "fundamentally different factors"
from those on which an effluent
limitations guideline was based;
(2) A variance based on the economic
capability of the applicant under section
301 (c) of the Act;
(3) A variance based upon certain
water quality factors under section
301(g);of
(4) A modification of section 302(b)(2)
requirements under section 302(a)
(water quality related effluent
limitations).
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32935
(c) The Regional Administrator may
deny, or may forward to the EPA Deputy
Assistant Administrator for Water
Enforcement with recommendation for
approval, an application for a variance
listed in paragraph fb) which is
forwarded by ,the State Director, or
submitted to the Regional Administrator
by the applicant where EPA is the
permitting authority.
(d) The EPA Deputy Assistant
Administrator for Water Enforcement
may approve or deny any variance
application submitted under paragraph
(c). If the EPA Deputy Assistant
Administrator approves the variance,
the Director may formulate a draft
permit incorporating the variance. Any
public notice of a draft permit for which"
a variance or modification has been
approved or denied shall identify the
applicable procedures for appealing that
determination under § 124.54.
§ 124.53 Procedures for variances and
modfficatforw where EPA is tne permit
issuing authority. -
(a) In states where EPA is the permit
issuing authority and an application for
a variance or modification is filed as
required by § 124.51, the application
shall be processed as follows:
(1) If at the time an application for a
variance or modification is submitted
the Regional Administrator has received
an application under § 124.11 for
issuance or renewal of that permit but
has not yet formulated a draft permit
under § 124.31 covering the discharge in
question, the Regional Administrator
after obtaining any necessary
concurrence of the EPA Deputy
Assistant Administrator for Water
Enforcement under § 124.52, shall set
forth a tentative determination on the
request at the time the draft permit is
formulated as specified in § 124.31,
unless this would significantly delay the
processing of the permit In that case the
processing of the variance or
modification request may be separated
from the permit in accordance with
paragraph (3), and the processing of the
permit shall proceed without delay,
[2] If at the time an" application for a
variance or modification is filed the
Regional Administrator has formulated
a draft permit under § 124.31 covering
the discharge in question, but that
permit has not yet become final under
§ 124.101, administrative proceedings
concerning that permit may be stayed
and the Regional Administrator shall
formulate a new draft permit including a
tentative determination on the request,
and the fact sheet required by § 124.34.
However, if this will significantly delay
the processing of the existing permit or
the Regional Administrator for other
reasons considers combining the
variance request and the existing permit
inadvisable, the request may be
separated from the permit in accordance
with paragraph (3), and the
administrative disposition of the
existing permit shall proceed without *
delay.
{3) If the permit has become final
under § 124.101 and no application
under § 124.11 concerning it is pending
or if the variance or modification
request has been separated from a
permit as described in paragraphs (1)
and (2), the Regional Administrator shall
formulate a new draft permit under
3 124.31. This permit shall be
accompanied by the fact sheet required
by § 124.34, except that the only matters
considered shall relate to the requested
variance.
§ 124.54 Appeals of modifications and
variances.
(a) Normally, the appeals of permit
determinations are handled in one
proceeding, either State or Federal.
When a State issues a permit in which
EPA has made a variance
determination, a separate appeal on that
determination is possible. In such"cases,
requests for appeal of the EPA permit
conditions must be filed under Subpart I
after the public notice of the grant or
denial of the variance. If the owner or
operator is challenging issues hi a State
proceedings on the same permit, the
Regional Administrator will decide, in
consultation with State officials, which
case will be heard first
(b) Appeals of modifications or
variance determinations shall be
governed by Subpart I unless the
Regional Administrator determines that
'consolidation with an evidentiary
hearing under Subpart H will expedite
consideration of the issues presented.
[Comment: The panel proceedings of Subpart
I will generally be utilized when there is a
State-issued permit and only the variance
issues are in the Federal forum.]
(c) Stays for section 301(g) variances.
Under the authority of section 301{j}(2),
if a request for an evidentiary hearing is
granted regarding a variance under
section 301 (g), or if a petition for timely
review of the denial of a request for an
evidentiary hearing is timely filed with
the Administrator under 1124.101 with
respect to such a variance, any -
otherwise applicable standards and
limitations under section 301 of the Act
shall riot be stayed unless:
(1) In the judgment of the Regional
Administrator, the stay or the variance
sought will not result in the discharge of
pollutants in quantities which may
reasonably be anticipated to pose an
unacceptable risk to human health or
the environment because of
bioaccumulation, persistency in the
environment, acute toxicity, chronic
toxicity, or synergistic propensities; and
(2] In the judgment of the Regional
. Administrator, there is a substantial
likelihood that the discharger will
succeed on the merits of its appeal; and .
(3) The discharger files any bond or
other appropriate security which is
required by the Regional Administrator
to assure timely compliance with the
requirements from which a variance is
sought in the event that the appeal is
unsuccessful.
(d) Stays for variances or
modifications other than section 301(g)
will be granted or denied pursuant to
§124.61.
§ 124.55 Special provisions for modifying
the secondary treatment requirement
under section 301(h).
(a) Where it is clear on the face of a
section 301(h) application that the
discharger is not entitled to a
modification, the application shall be
denied.
(b) In the case of all other section
301(h) applications the Administrator, or
a person designated by the
Administrator may either:
" (1) Give written authorization to an
applicant to submit information required
by Part 125. Subpart G or the final
application by a date certain, not to
exceed 9 months, if:
(i) The applicant proposes to submit
new or additional information and the
applicant demonstrates that:
(A) The applicant made consistent
and diligent efforts to obtain such
information prior to submitting the final
application;
(B) The failure to obtain such
information was due to circumstances
beyond the control of the applicant; and
(CJ Such information can be submitted
promptly; or
(ii) The applicant proposes to submit
minor corrective information and such
information can be submitted promptly;
or
(2) Make a written request of an
applicant to submit additional
information by a date certain, not to
exceed 9 months, if such information is
necessary to issue a tentiative
determination under § 124.114(g).
All additional information authorized or
requested under this paragraph which is
timely, received, shall be considered part
of the original application.
(c) Applications for modifications
under section 301(h) shall be processed
independently of any pending
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3293S Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations
application for the issuance or
reissuance of a permit requiring the
applicant to meet effluent limitations
based on secondary treatment under
section 301(b){l)[B).
(d) No modified permit shall be issued
granting a section 301(h) modification
unless the appropriate State officials
have concurred or waived concurrence
pursuant to § 124.24. In the case of a
penr.it issued to an applicant in an
approved State, the State Director may:
(1) Revoke any existing permit as of
the effective date of the EPA-issued
modified permit; and
(2) Co-sign the modified permit, if the
Director has indicated an intent to do so
in the written concurrent.
(e) Appeals of determinations under
section 301(h) shall be governed by Part
124, Subpart I.
§ 124.56 Special procedures for decisions
on thermal variances (section 316{a)).
(a) Except as provided in § 124.53 the
only issues connected with issuance of a
particular permit on which EPA will
make a final Agency decision before the
final permit is issued under § 124.61 are
whether alternative effluent limitations
would be justified under section 316(a)
and whether cooling water intake
structures will use the best available
technology under section 316(b),
"Applicants who wish an early decision
on these issues should request it and
furnish supporting reasons at the time
their applications are filed under
§ 124.51(b)(6). The Regional
Administrator will then decide whether
or not to grant it. If it is granted, both the
early decision on section 316 (a) or (b)
issues and the grant of the balance of
the permit shall be considered permit
issuance under these regulations, and
shall be subject to the same
requirements of public notice and
comment and the same opportunity for
an evidentiary hearing.
(b) If the Regional Administrator, on
review of the administrative record,
determines that the information
necessary to decide whether or not an
alternative effluent limitation under
section 316(a) should be granted to a
source is not likely to be available by
the time a decision on "permit issuance
must be made, the Regional
Administrator may issue a permit under
§ 124.61 for a term of up to Eve years.
This permit shall require that the point
source achieve the effluent limitations
initially proposed for the control of the
thermal component of the discharge no
later than the date otherwise required
by applicable legal requirements.
However, the permit shall also afford
the permittee an opportunity to file a
demonstration under section 316(a) after
conducting such studies as are required
under Part 125, Subpart H.
[Comment: A new discharger may not
commence operation in violation of the
thermal effluent limitations which are
initially proposed unless and until the section
316(a) variance request is finally approved.]
(c) Any hearing scheduled under
paragraph (a) shall be publicized as
required by § 124.41 and shall be
scheduled enough in advance of the
final compliance date specified hi the
permit to allow the permittee to take
necessary measures to comply by that
date in the event its request for
modification of thermal limits is
eventually denied after the hearing is
concluded.
(d) Whenever the Regional
Administrator defers the determination
under section 316(a), any determination
under section 316(b) may be deferred.
Subpart G—Issuance and Effective
Date of Permit
§ 124.61 Issuance and effective date of
permit; stays.
(a)(l) After the close of the public
comment period (including any public
hearing period] required by § 124.42 on a
draft permit, the Regional Administrator
shall prepare and issue a final permit
and shall serve notice as provided in
§ 124.80(c) of that action of the
applicant, and on each person who has
submitted written comments or - -
requested notice of the issuance of the
final permit This notice shall include
reference to the procedures available to
contest the permit terms under § 124.74
et seq.
[Comment: A statement signed by a person in
the Regional Office that an attached list of -
persons were mailed the notice of issuance of
the final permit is sufficient to meet the
requirements of § 124.80{c). The mailed notice
need not be sent certified mail.]
(b) Any final permit issued under
paragraph (a) constitutes final action of
EPA, when it becomes effective under
paragraph (c) unless a request for an
evidentiary hearing under § 124.75 or a
panel hearing under § 124.114 is granted.
(c) Except as provided in paragraphs
(d), (e) and (f), a permit or modification_
shall become effective 30 days after the
service of notice of the final permit
under paragraph (a), unless a later
effective date is specified in the permit.
(d) If a request for an evidentiary
hearing is granted under § 124.75 or
§ 124.111(a)(3) regarding the initial
permit issued for a new source or a new
discharger, or if a petition for review of
the denial of a request for an
evidentiary hearing with respect to such
a permit is timely filed with the
Administrator under 1124.101, the
applicant shall be without a permit for
the proposed new source or new
discharge, pending final Agency action
under § 124.101.
(e){l) If a request for a hearing is
granted hi whole or hi part under
§ 124.75 or § 124.111(a)(3) regarding a
permit for an existing source, or if a
petition for review of the denial of a
request for an evidentiary hearing with
respect to such a permit is timely filed
with the Administrator under § 124.101,
the force and effect of the contested
provisions of the final permit shall be
stayed and shall not be subject to
judicial review under section 509(b) of
the Act, pending final Agency action
under § 124.101. The Regional
Administrator shall serve notice, in
accordance with § 124.75, on the
discharger and all parties identifying the
terms of the final permit which are not
contested and therefore are enforceable
obligations of the discharger.
(2] 'Where effluent limitations are
contested, but the underlying control
technology is not, the notice shall
identify the installation of the
technology in accordance with the
permit compliance schedules (if
uncontested) as an uncontested,
enforceable obligation of the permit
(3) Where a combination of
technologies is contested, but a portion
of the combination is not contested,
such portion shall be identified as
uncontested if compatible with the
combination of technologies proposed
by the requester.
(4) A term or condition, otherwise
uncontested, shall not be identified as
uncontested if it is inseverable from a
contested term or condition.
(5) Uncontested terms and conditions
shall become enforceable 30 days after
the date of such notice, provided,
however, that if a request for an
evidentiary hearing on a term or
condition was denied and the denial is
appealed under § 124.101, then such
term or condition shall become
enforceable upon the date of the notice
of the Administrator's decision on the
appeal if the denial is affirmed, or shall
be stayed, in accordance with this
section, if the Administrator reverses
the denial and grants the evidentiary
hearing on such permit term.
(6) Uncontested terms and conditions
shall include:
(i) Permit requirements for which an
evidentiary hearing has been requested
but the hearing has been denied:
(ii) Preliminary design and
engineering studies or other
requirements necessary to achieve the
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32937
final permit term or conditions which do
not entail substantial expenditures;
(iii) Permit conditions which will have
to be met regardless of which party
prevails at the evidentiary hearing;
(iv) Where the discharger proposed a
less stringent level of treatment than
that contained in the final permit, any
permit conditions appropriate to meet -
the levels proposed by the discharger, if
the measures required to attain such
less stringent level of treatment are
._ consistent with the measure required to
attain the limits proposed by the
Agency; and
(v) Construction activities such as
segregation of waste streams or
installation of equipment which would
partially meet the final permit terms or
conditions and coukfalso be used to
achieve the discharger's proposed
alternative terms and conditions.
(7) If at any time after a hearing is
granted and after the Regional
Administrator's notice under paragraph
(1), it becomes clear that a permit
requirement is no longer contested, any
party may request the Presiding Officer
to issue an order identifying the
requirements as uncontested. The
requirement identified in such order
shall become enforceable 30 days after
the issuance of the order.
(f) Where an evidentiary hearing is
granted under § 124.75 on an application
for a renewal of an existing permit, all
provisions of the existing permit, as well
as uncontested provisions of the new
permit, shall continue in full force and
effect until final Agency action under
§ 124.101. [See § 122.12(b]J. Upon written
request from the applicant, the Regional
Administrator may modify the existing
permit to delete requirements which
unnecessarily duplicate uncontested
provisions of the new permit
[Comment: The following examples
demonstrate the application of § 124.61(6)
and(f):
Example I: The discharger requests and is
granted an evidentiary hearing on its
contention that the EPA's proposed efflnent
limitation for total suspended solids (TSS) at
level X is too stringent and should be relaxed
to level Y. Treatment technology A attains
level Y whereas technology A phis B is .
necessary for level X. In this case, the
discharger's obligation to install technology
A is effective 30 days after service of the
-notice trader S 124.75(bJ and this obligation is
not stayed by virtue of the contest as to the
need for additional technology B. The
discharger would be required to comply with
all portions of the compliance schedule
relating to design, construction and
attainment of technology A, but would obtain
a stay of such provisions with respect to"
technology B. This is true even if the schedule
does not separate the two technologies. The
discharger meat of course also perform all
basic work such as segregation of waste
streams, site preparation, monitoring,
reporting, and initial construction because
this will be necessary regardless of the
outcome of the contest The additional
obligations of technology B are stayed.
Example 2: The same facts as in Example 1
except that a public interest group has also
requested and been granted participation in
the evidentiary hearing. The group contends
that TSS level X is too lenient and should be -
tightened to level Z. Treatment technology C,
which is inconsistent with both A and B
technologies, is required for level Z. In this
case the discharger's obligation to install
technologies A, A and B, or C are all stayed.
The discharger's obligations to perform basic
work such as segregation of waste streams,
site preparation, monitoring, reporting, and
perhaps initial construction are not stayed
because they are unaffected by the contest
Example 3: The discharger requests an
evidentiary hearing on two issues: that the
permits total suspended solids fTSS] limit
and pH limit are each too strict The Regional
Administrator grants the evidentiary hearing
on the TSS issue but denies it on the pH
claim. The TSS and pH technologies are
independent and severable and the
discharger does not appeal the denial of
hearing on the pH claim. In this case the
discharger's obligation to install the pH
control technology is not stayed and becomes
effective 30 days after service of the Regional
Administrator's notice under § 124.75(b). If
the underlying technology for the TSS limit is
at issue, the TSS limitation is stayed.
However, as described in Examples 1 and 2,
the discharger's obligations to perform aH
work unaffected by the stay (e.g^, segregation
of waste streams, site preparation, initial
construction, etc.) are not stayed.
Example 4: The same facts as in Example 3
except that the equipment required for
attaining the pH limit is achieved by the
installation of the TSS equipment In this
case the Regional Administrator may
determine mat the pH permit term is
inseverable from the TSS contest and thus
the limits for both parameters would be
stayed by virtue of the hearing on TSS,
although as noted in the preceding examples.
the discharger's obligations to perform all
work unaffected by the stay are not stayed
Note however, that if the pH limit is
achievable in an inexpensive and temporary
alternative such as additional chemical
treatment in the discharger's existing
equipment then the Regional Administrator
may determine that the pH permit term is
severale and refuse to stay the pH term.
Example & The same facts as in Example 3
except that the discharger appeals (to the
Administrator) the Regional Administrator's
denial of the evidentiary hearing on Issue No.
2 (the pH limit). In this case the pH limitation
is also stayed (with the exceptions noted in
the preceding examples) at least until the
Administrator's decision on such appeal If
the Administrator affirms the denial of the
evidentiary hearing on the pH limit then 19011
service of notice under § 124J5(b) the stay
terminates. If the Administrator reverses and
thus grants the evidentiary hearing on the pH
term then the stay continues until final
Agency action.
(g) When issuing a finally effective
permit under Subpart I, the Regional
Administrator shall extend the permit
compliance schedule to the extent
required by a stay under this section;
provided that no such extension shall be
granted which would: •
(1) Result in the violation of an
applicable statutory deadline; or
(2) Cause the permit to expire more
than five years after issuance under
§124.61(a).
[Comment: Extensions of compliance
schedules will not automatically be granted
for a period equal to the period the stay is in
effect lor an effluent limitation. For example.
if both the Agency and the discharger agree
that a certain treatment technology is
required by tbe Act where guidelines do not
apply, but a hearing is granted to consider the
effluent limitations which the technology will
achieve, requirements regarding installation
of the underlying technology will not be
stayed during the hearing. Thus, unless the
hearing extends beyond the final compliance
date in the permit it will not ordinarily be
necessary to extend the compliance schedule.
However, where application of an underlying
technology is challenged, the stay for
installation requirements relating to that
technology would extend for the duration of
the hearing.]
(h) For purposes of judicial review
under section 509(b) of the Act. final
administrative action on a permit does
not occur unless and until a party has
requested and exhausted its
Administrative remedies under Subpart
H and I and §124.101. Any party which
neglects or fails to seek review under
§ 124.101 thereby waives its opportunity
to exhaust available Agency remedies.
§ 124.62 Final ifr»!ii/nnwntaf Impact
statement
No final permit for a new source shall
be issued until at least 30 days after the
date of issuance of a final
Environmental Impact Statement if one
is required under 40 CFR § 6.916.
§ 124£3 Response to comments.
(a) At the time any final permit is
issued, the Director shaD also prepare a
response to comments for that permit -
This response to comments shall
contain:
(1) A specific indication of which
provisions of the draft permit have been
changed in the final permit, and the
reasons for the change; and
(2) A brief description of and response
to all significant comments on the draft
permit raised during the public comment
period, or during any hearing.
[bj For EPA-issued permits any
documents cited hi the response to
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32933 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
comments shall be included in the
administrative record for the final
permit as defined in § 124.64.
[Comment: If new points are raised or new
material supplied during the public comment
period, EPA may document its response to
those matters by adding new material to the?
administrative record.]
§ 124.54 Administrative record for final
permit issued by EPA.
(a) Decisions to issue a final permit
under § 124.61 shall be made on the
basis of the administrative record
defined in this section.
(b) The administrative record for any
final permit shall consist of the
administrative record for the draft
permit and
(1) All comments received during the
public comment period required by
§ 124.42;
(2] The tape or transcript of any
hearing(s) held under § 124.42;
(3) The response to comments
required by § 124.63;
(4} Any final Environmental Impact
Statement;
(5) Other documents contained in the
supporting file for the permit, including
correspondence, telephone and meeting
memoranda, compliance reports, etc.;
and
(6) The final permit.
These documents shall be added to the
record as soon as feasible after their
receipt or publication by the Agency.
(c)(l) This section applies to all final
permits where the draft permit was
subject to the administrative record
requirements of § 124.35.
(2) Whether or not a draft permit was
formulated or final permit was issued
subject to this Subpart, the Regional
Administrator, at any time prior to the
rendering of an initial decision in an
evidentiary hearing on that permit, may
withdraw the permit in whole or in part
and formulate a new draft permit under
§ 124.31 addressing the portions so
withdrawn. The new draft permit shall
proceed through the same process of
public comment and opportunity for a
public hearing, etc. as would apply to
any other draft permit subject to this
Part. Any portions of the permit which
are not withdrawn and which are not
stayed under § 124.61 shall remain in
effect.
(d) Material readily available at the
issuing Regional Office or published
material which is generally available,
and which is included in the
administrative record under the
standards of this section or of § 124.63
("Response to Comments"), does not
need to be physically included in the
same file as the rest of the record as
long as it is specifically referenced in
the fact sheet or statement of basis or in
the response to comments.
Subpart H—Evidentiary Hearings for
EPA-lssued Permits
§124.71 Applicability.
The regulations in this Subpart govern
all evidentiary hearings conducted by
EPA under section 402 of the Act, except
as otherwise provided in Subpart I. An
evidentiary hearing is available to
challenge any permit issued under
§ 124.61 except for a general permit.
Persons affected by a general permit
may not challenge the terms and
conditions of a general permit but may
instead apply for an individual permit
under § 124.1J as authorized in § 122.48
and then request an evidentiary hearing
on the issuance or denial of an
individual permit.
§124.72 Definitions.
For the purpose of this Subpart H and
I, the following definitions are
applicable:
(a) "Judicial Officer" means a
permanent or temporary employee of the
Agency appointed as a Judicial Officer
by the Administrator under these
regulations and subject to the following
conditions:
(1) A Judicial Officer shall be a
licensed attorney. A Judicial Officer
shall not be employed in the Office of
.Enforcement or the Office of Water and
Waste Management, and shall not
participate in the consideration or
decision of any case in which he pr she
performed investigative or prosecutorial
functions.
(2) The Administrator may delegate
any authority to act in an appeal of a
given case under this Subpart to a
Judicial Officer who, in addition, may
perform other duties for EPA, provided
that that delegation shall not preclude a
Judicial Officer from referring any
motion or case to the Administrator
when the Judicial Officer decides
referral would be appropriate. The
Administrator, in deciding a case, may
consult with and assign the drafting of
preliminary findings of fact and
conclusions and/or a preliminary
decision to any Judicial Officer.
(b) "Party" means the EPA trial staff
under § 124.78 and any person whose
request for a hearing under § 124.74 or
whose request to be admitted as a party
or to intervene under § § 124.79 or
124.117 has been granted.
(c) "Presiding Officer" means an
Administrative Law Judge appointed
under 5 U.S.C. § 3105 and designated to
preside at the hearing.
(d) "Regional Hearing Clerk" means
an employee of the Agency designated
by a Regional Administrator to establish
a repository for all books, records,
documents and other materials relating
to hearings under this Subpart. A
Regional Hearing Clerk may be the same
person as the Record Clerk required by
§ 124.35.
§ 124.73 Filing and submission of
documents.
(a) All submissions authorized or
required to be filed with EPA under this
Subpart shall be filed with the Regional
Hearing Clerk, unless the regulations
provide otherwise. Submissions shall be
considered filed on the date on which
they are mailed or delivered in person to
the Regional Hearing Clerk.
{b) All such submissions shall be
signed by the person making the
submission, or by an attorney or other
authorized agent or representative.
(c)(l) All data and information
referred to or in any way relied upon in
any such submissions shall be included
hi full and may not be incorporated by
reference, unless previously submitted
as part of the administrative record in
the same proceeding, except for State or
Federal statutes and regulations, judicial
decisions published in a national
reporter system, officially issued EPA
documents of general applicability, and
any other material which is generally
available or of peripheral relevance, jn
which case the party relying on it shall
file a written undertaking to make
copies available"as directed by the
Regional Administrator or the Presiding
Officer.
(2) If any part of the material
submitted is in a foreign language, it
shall be accompanied by an English
translation verified under oath to be
complete and accurate, together with the
name, address, and a brief statement of
the qualifications of the person making
the translation. Translations of literature
or other material in a foreign language
shall be accompanied by copies of the
original publication.
(3) Where relevant data or
information is contained in a document
also containing irrelevant matter, either
the irrelevant matter shall be deleted
and only the relevant data or
information shall be submitted or the .
relevant portions shall be briefly
indicated.
(4) The failure to comply with the
requirements of this section or any other
requirement in this Subpart may result
in the exclusion from consideration of
any portion of the submission which
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Federal Register / VoL 44, No. Ill /Thursday, June 7, 1979 / Rules and Regulations 32939
fails to comply. If the Regional
Administrator or the Presiding Officer,
on motion by any party or sua sponte,
determines that a submission fails to
meet any requirement of this Subpart
the Regional Administrator or Presiding
Officer shall direct the Hearing Clerk to
return the submission with a copy of the
applicable regulations indicating those
provisions not complied with in the
submission. The party proposing to
submit any materials previously rejected
shall have 14 days to correct the errors
and resubmit unless the Regional
Administrator or the Presiding Officer
determines that there is good cause to
allow a longer time.
(d) The filing of a submission shall not
mean or imply that it in fact meets all
applicable requirements or that it
contains reasonable grounds for the
action requested or that the action
requested is in accordance with law.
(e) The original of all statements and
documents containing factual material,
data, or other information shall be
signed in ink and shall state the name,
address and the representative capacity
of the person making the submission.
The person signing shall comply with
the signature and certification
procedures of § 122.5.
§ 124.74 Requests for evidentiary hearing.
(a) Within 30 days following the
service of notice of the Regional
Administrator's issuance of a final
permit under § 124.61, any interested
person may submit a request to the
Regional Administrator under paragraph
(b) for an evidentiary hearing to
reconsider or contest the terms of that
permit. If such a request is submitted by
a person other than the permittee, the
person shall simultaneously serve a
copy .of the request on the permittee.
(b) In accordance with § 124.76, such
requests shall state each legal or factual
question alleged to be at issue, and their
relevance to the permit decision,
together with a designation of the
specific factual areas to be adjudicated
and the hearing time estimated to be
necessary for that adjudication.
Information supporting the request or
other written document relied upon to
support the request shall be submitted
as required by § 124.73 unless it is
already in the administrative record
required by § 124.64.
[Comment This paragraph allows the
submission of requests for evidentiary
hearings even though both legal and factual
issues may be raised, or only legal issues
may be raised. la the latter case, because no
factual issues were raised, the Regional
Administrator would be required to deny the
request. However, on review of the denial.
the Administrator is authorized by
§I24.IOI(a)fI} to review policy or legaf
conclusions of the Regional Administrator.
EPA is requiring an appeal to the
Administrator even of purely legal issues
involved in a permit decision to ensure that
the Administrator will have an opportunity to
review any permit before it will be final and
subject to judicial review.]
(c) Such requests shall also contain:
(1) The name, mailing address and
telephone number of the person making
such request;
(2) A clear and concise factual
statement of the nature and scope of the
interest of the requester;
(3) The names and addresses of all
persons whom the requester represents;
and
(4} A statement by the requester that,
upon motion of any party, or sua sponte
by the Presiding Officer and without
cost or expense to any other party, the
requester shall make available to appear
and testify, the following:
(i) Hie requester;
(ii) All persons represented by the
requester; and
fjui) All officers, directors, employees,
consultants and agents of the requester
and the persons represented by the
requester.
(5) Specific references to the
contested permit terms and conditions,
as well as suggested revised or
alternative permit terms and conditions
(not excluding permit denial) which, in .
the judgment of the requester, would be
required to implement the purposes and
policies of the Act.
(6) In the case of challenges to the
application of control or treatment
technologies identified in the statement
of basis or fact sheet, identification of
the basis for the objection, and the
alternative technologies or combination
of technologies which the requester
believes are necessary to meet the
requirements of the Act
(7) Specific identification of each of
the discharger's obligations which
should be stayed if the request is
granted. If the request contests more
than one permit term or condition then
each obligation which is proposed to be
stayed must be referenced to the
particular contested term warranting the
stay.
(d) The Regional Administrator [upon
notice to all persons who have already
submitted hearing requests) may extend
the time allowed for submitting hearing
requests under this section for good
cause. - -
S 124.75 Decision on request for a
hearing. ,
(a) Following the expiration of the
time allowed by § 124.74 for submitting
a request for an evidentiary hearing, the
Regional Administrator shaD determine
whether the request shall be granted,
denied or granted in part and denied in
part The Regional Administrator shall
grant a request either in whole or in part
only if the request conforms to the
requirements of § 124.74 and sets forth
material issues of fact relevant to the
issuance of the permit
(b) If the Regional Administrator
grants a request for an evidentiary
hearing, in whole or in part, the Regional
Administrator shall state and identify
the permit terms and conditions which
have been contested by the requester
and for which the evidentiary hearing
has been granted. Permit terms and
conditions which are not contested or
for which the Regional Administrator
has denied the hearing request shall not
be affected by or considered at the
evidentiary hearing. The Regional
Administrator shall specify these terms
end conditions in writing and serve
notice in accordance with 5 124.61(e).
(c) If the Regional Administrator
grants a request for an evidentiary
hearing in whole or in part in regard to
a particular proposed permit then any
other request for an evidentiary hearing
in regard to that permit shall be treated
as a request to be a party and the
Regional Administrator shall grant any
'such request which meets the
requirements of paragraph (a) of this
section.
(d) If a request for a hearing is denied
in whole or in part the Regional
Administrator shall briefly state the
reasons. That denial is then subject to
review by the Administrator under
{124.101.
§ 124.76 Obligation to raise Issues and
submit evidence before a final permit Is
Issued.
No evidence shall be submitted by
any party to a hearing under this
Subpart that was not submitted to the
administrative record required by
§ 124.64 unless good cause is shown for
the failure to submit it No issues shall
be raised by any such party that were
not submitted to the administrative
record required by § 124.64 unless good
cause is shown for the failure to submit
them. Good cause includes the case
where the party seeking to raise the new
issues, or introduce new information,
shows that it could not reasonably have
ascertained the issues or made the
information available within the time
required by § 124.43.
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32940' Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
§ 124.77 Notice of the grant of a hearing.
Public notice of the grant of an
evidentiary hearing regarding a permit
shall be given as provided in § 124.41(h)
and in addition by mailing a copy to all
persons who commented on the draft
permit or submitted a request for a
hearing. Before the issuance of such
notice the Regional Administrator shall
designate the Agency trial staff and the
members of the decisional body (as
defined in § 124.78).
§124.78 Ex parte communications.
(a](l) No interested person outside the
Agency or member of the Agency trial
staff shall make or knowingly cause to
be made to any members of the
decisional body an ex parte
communication relevant to the merits of
the proceedings.
(2) No member of the decisional body
shall make or knowingly cause to be
made to any interested person outside
the Agency or member of the Agency
trial staff an ex parte communication
relevant to the merits of the
proceedings.
(3) A member of the decisional body
who receives or who makes or
knowingly causes to be made a
communication prohibited by this
subsection shall file with the Regional
Hearing Clerk, for the public record of
the hearing, all such written
communications or memoranda stating
the substance of all such oral
communications together with all ,
written responses and memoranda
stating the substance of all oral
responses.
(b) Upon receipt by any members of
the decision making body of an ex parte
communication knowingly made or
knowingly caused to be made by a party
in violation of this section, the person
presiding at the stage of the hearing then
in progress may, to the extent consistent
with justice and the policy of the Act
require the party to show cause why its
claim or interest in the proceedings
should not be dismissed, denied,
disregarded or otherwise adversely
affected on account of such violation.
(c) The prohibitions of this section
begins to apply upon issuance of the
notice of the grant of a hearing under
§ 124.77 or § 124.116. This prohibition
terminates at the date of final Agency
action.
(d) For purposes of this section, the
following definitions shall apply:
(1) "Agency trial staff means those
Agency employees, whether temporary
or permanent, who have been
designated by the Agency under § 124.77 .
or § 124.116 as available to investigate,
litigate and present the evidence.
arguments and position of the Agency in
the evidentiary hearing or non-
adversary initial licensing hearing.
Appearance as a witness does not
necssarily require a person to be
designated as a member of the Agency
trial staff;
(2) "Decisional body" means any
Agency employee who is or may
reasonably be expected to be involved
in the decisional process of the
proceeding including the Administrator,
Judicial Officer, Presiding.Officer, the
Regional Administrator (if he does not
designate himself as a member of the
Agency trial staff) and any of their
direct support staff participating in the
decisional process. In the case of a
nonadversary initial licensing
proceeding, the decisional body shall
also include the panel members whether
or not permanently employed by the
Agency;
(3) "Exparte communication" means
any communication written or oral
relating to the merits of the proceeding
between the decisional body and an
interested person outside the Agency or
the Agency trial staff where such
communication was not originally filed
or stated uVthe administrative record or
in the hearing. Ex parte communications
do not include:
(i) Communications between^Agency
employees other than between the
Agency trial staff and the members of
the decisional body;
(ii) Discussions between the
decisional body and either '
(A) Interested persons outside the
Agency; or
(B) The Agency trial staff;
If all parties have received prior written
notice of such proposed communications
and have been given the opportunity to
be present and participate therein.
(iii) Communications between Agency
employees including trial staff but not
the decisional body and any persons
outside the Agency including interested
persons outside the Agency.
(4) "Interested person outside the
Agency" includes the permit applicant,
any person who filed written comments
•in the proceeding, any person who
requested the hearing, any person who
requested to participate or intervene in
the hearing, any participant or party in
the hearing and the attorney of record
for such persons.
§ 124.79 Additional parties and issues.
(a) Any person may submit a request
to be admitted as a party within 15 days
after the date of mailing, publication or
posting of notice of the grant of an
evidentiary hearing, whichever occurs
last. The Presiding Officer shall grant
such requests as meet the requirements
of § 124.74 and § 124.76. Such request
must specifically identify those issues
already raised which the requester
seeks to address at the hearing.
(b) After the expiration of the time
prescribed in paragraph (a) any person
may file a motion for leave to intervene
as a party. This motion must meet the
requirements of § § 124.74 and 124.76
and set forth the grounds for the
proposed intervention provided,
however, that no factual or legal issues
in addition to those raised by timely
hearing requests may be proposed
except for good cause. Any motion to
intervene must also contain a verified
statement showing good cause for the
failure to file a timely request to be
admitted as a party. The Regional
Administrator, or the Presiding Officer if
one has been assigned, shall grant such
motion only upon an express finding on
the record that:
(1) Extraordinary circumstances
justify granting the motion;
(2) The intervener has consented to be
bound by:
(i) Prior written agreements and
stipulations by and between the existing *
parties; and
(ii) All orders previously entered in
the proceedings; and
(3) Intervention will not cause undue
delay or prejudice the rights of the
existing parties.
§ 124.80 Filing and service.
(a) An original and one (1) copy of all
written submissions relating to an
evidentiary hearing filed after the notice
of hearing is published shall be filed
with the Regional Hearing Clerk.
(b) The party filing any submission -
shall serve a copy of such submission
upon the Presiding Officer and each
party of record. Service shall be by mail
or personal delivery.
(c) Every submission shall be
accompanied by an acknowledgement
of service by the person served or proof
of service in the form of a statement of
the date, place, time, and manner of
service and the names of the persons
served, certified by the person who
made service.
[Comment: A signed statement that an
attached list of persons were mailed the
submission is sufficient to meet the
requirements of this paragraph. Certified mail
is not required.]
(d) The Regional Hearing Clerk shall
maintain and furnish to any person upon
request a list containing the name,
service address and telephone number
of all parties and their attorneys or duly
authorized representatives. f
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32941
§124.81 Assignment of administrative law
judge.
No later than the date of mailing,
publication or posting of the notice of a
grant of an evidentiary hearing,
whichever occurs last, the Regional
Administrator shall refer the proceeding
to the Chief Administrative Law Judge
who shall make an assignment of an
Administrative Law Judge to serve as
Presiding Officer for the hearing.
§ 124.82 Consolidation and severance.
(a) The Administrator, Regional
Administrator or Presiding Officer, has
the discretion to consolidate, in whole
or in part, two or more proceedings to be
held under this Subpart, whenever it
appears that a joint hearing on any or all
of the matters in issue would expedite or
simplify consideration of the issues and
that no parry would be prejudiced
thereby. Consolidation shall not affect
the right of any party to raise issues that
might have been raised had there been
no consolidation.
(b) If the Presiding Officer determines
consolidation is not conducive to an
expeditious, full and fair hearing, any
party or issues may be severed and
heard separately.
§124.83 Prehearfng conferences.
(a) The Presiding Officer, suasponte,
or at the request of any party, may
direct the parties or their attorneys or
duly authorized representatives to
appear at a specified time and place for
one or more conferences before or
. during a hearing, or to submit written
proposals or correspond for the purpose
of considering any of the matters set
forth In paragraph (c) of this section.
(bj The Presiding Officer shall allow a
reasonable period before the hearing
begins for the orderly completion of all
prehearing procedures and for the
submission and disposition of all
prehearing motions. Where the
circumstances warrant, the Presiding
Officer shall caD a prehearing
conference to inquire into the use of
available procedures contemplated by
the parties and the time required for
their completion, to establish a schedule
for their completion, and to set a
tentative date for beginning the hearing.
(c) In conferences held, or in
suggestions submitted, under paragraph
(a), the following matters 'may be
considered:
(1) The necessity or desirability of
simplification,, clarification,
amplification or limitation of the issues.
(2) The admission of facts and of the
genuineness of documents, and the
possibility of stipulations with respect to
facts.
(3) The consideration of and ruling
upon objections to the introduction into
evidence at the hearing of any written
testimony, documents, papers, exhibits,
or other submissions proposed by a
party, except that the administrative
record required by § 124.64 shall be
received in evidence subject to the
provisions of § 124.85(d)(2).
Notwithstanding the foregoing, at any
time before the end of the hearing any
party may make, and the Presiding
Officer shall consider and rule upon,
motions to strike testimony or other
evidence other than the administrative
record on the grounds of relevance,
competency or materiality.
(4) The identification of matters of
which official notice may be taken.
(5) The establishment of a schedule
which includes definite or tentative
times for as many of the following as are
deemed necessary and proper by the
Presiding Officer;
(i) The submission of narrative
statements of position on each factual
issue in controversy;
(ii) The submission of written
testimony and documentary evidence
(e.g., affidavits, data, studies, reports
and any other type of written material)
in support of such statements; or
(iii) Written requests to any party for
the production of additional
documentation, data, or other
information relevant and material to the'
facts in issue.
(6) The grouping of participants with
substantially like interests for purposes
of eliminating duplicative or repetitive
development of the evidence and
making and arguing motions and
objections.
{7} Such other matters as may
expedite the hearing or aid in the
disposition of the matter.
(d) At a prehearing conference or
within some reasonable time sat by the
Presiding Officer, each party shall make
available to all other parties the names
of experts and other witnesses it
expects to call. At it» discretion or at the
request of the Presiding Officer, a party
may include a brief narrative summary
of any witness's anticipated testimony.
Copies of any written testimony,
documents, papers, exhibits, or
materials which a party expects to
introduce into evidence, and the
administrative record required by
§ 124.64, shall be marked for
identification as ordered by the
Presiding Officer. Witnesses, proposed
written testimony and other evidence
may be added or amended only upon a
finding by the Presiding Officer that
good cause existed for failure to
•introduce the additional or amended
material within the time specified by the
Presiding Officer. Agency employees
and consultants shall be made available
as witnesses by the Agency to the same
extent that production of such witnesses
is required of other parties under
§ 124.74(c)(4). (See also } 124.85{b)(16}).
(e) The Presiding Officer shall prepare
a written prehearing order reciting the
actions taken at the prehearing
conference and setting forth the
schedule for the hearing, unless a
-transcript has been taken and
accurately reflects these matters. The
order shall include a written statement
of the areas of factual agreement and
disagreement and of the methods and
procedures to be used in developing the
evidence and the respective duties of
the parties in connection therewith. This
• order shall control the subsequent
course of the hearing unless modified by -
the Presiding Officer for good cause
shown.
§ 124.84 Summary determination.
(a) Any party to an evidentiary
hearing may move with or without
supporting affidavits and briefs for a
summary determination in his or her
favor upon all or any part of the issues
being adjudicated on the basis that there
is no genuine issue of material fact for
determination. Any such motion shall be
filed at least 45 days before the date set
for the hearing, except that upon good
cause shown such motion may be filed
at any time before the close of the
hearing.
(b) Any other parry may, within 30
days after service of the motion, file and
serve a response to it or a counter-
motion for summary determination.
When a motion for summary
determination is made and supported, a
party opposing the motion may not rest
upon mere allegations or denials but
must show, by affidavit or by other
materials subject to consideration by the
Presiding Officer, that there is a genuine
issue of material fact for determination
at the hearing.
(c} Affidavits shall be made on
personal knowledge, shall set forth facts
that would be admissible hi evidence
and shall show affirmatively that the
affiant is competent to testify to the
matters stated therein.
(d) The Presiding Officer has the
discretion to set the matter for oral
argument and call for the submission of
proposed findings, conclusions, briefs or
memoranda of law. The Presiding
Officer shall rule on the motion not more
than 30 days after the date responses to
the motion are filed under paragraph (b)
of this section.
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32B42 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
(e) If all issues of material fact are
decided on a motion for summary
determination, no hearing will be held
and the Presiding Officer shall
thereupon prepare an initial decison
under § 124.89. If the motion for
summary determination is denied or if
only a partial summary determination is
granted, the Presiding Officer shall issue
a memorandum opinion, and order,
interlocutory in character, and the
hearing will proceed on the remaining
issues. Appeals from interlocutory
rulings are governed by § 124.90.
§ 124.85 Hearing procedure.
(a){l) The permit applicant always
bears the burden of persuading the
Agency that a permit authorizing
pollutants to be discharged should be
issued and not denied. This burden does
not shift
(2) The Agency has the burden of
going forward to present an affirmative
case in support of any challenged term
or condition of a final permit
[Comment: In many cases the documents
contained in the administrative record, in
particular the fact sheet or statement of basis
and the response to comments should
adequately discharge this burden.]
(3) Any hearing participant who, by
raising material issues of fact, contends:
(i) That particular terms, conditions or
requirements in the permit are improper
or invalid, and who desires either:
(A) The inclusion of new or different
terms, conditions or requirements; or
(B) The deletion of such terms,
conditions or requirements; or
(ii) That the denial or issuance of a
permit is improper or invalid, shall have
the burden of going forward to present
an affirmative case upon the issues.
(b) The Presiding Officer shall have
the authority and duty to conduct a fair
and impartial hearing, to take action to
avoid unnecessary delay in the
disposition of the proceedings, to
"maintain order and all powers
necessary to these ends, including the
power to:
(1) Establish the date, time and place
of hearings and conferences; '
(2) Establish the methods and
procedures to be used in the
development of the evidence;
(3) Prepare, after considering the
views of the participants, written
statements of areas of factual
disagreement among the participants;
(4) Hold conferences to settle,
simplify, determine or strike any of the
issues in a hearing, or to consider other
matters that may facilitate the
expeditious disposition of the hearing;
(5) Administer oaths and affirmations;
(6) Regulate the course of the hearing
and govern the conduct of participants;
(7) Examine witnesses;
(8) Identify and refer issues for
interlocutory decision under 1124.90;
{9} Rule on, admit, exclude, or limit
evidence;
(10) Establish the time for filing
motions, testimony and other written
evidence, briefs, findings, and other
submissions;
;,_ (11) Rule on motions and other
procedural matters pending before him,
including but not limited to motions for
summary determination in accordance
with § 124.84;
(12) Order that the hearing be
conducted in stages in cases where the
number of parties is large or the issues
are numerous and complex;
(13) Take any action not inconsistent
with the provisions of this subpart for
the maintenance of order at the hearing
and for the expeditious, fair and
impartial conduct of the proceeding;
(14) Provide for the testimony of
opposing witnesses to be heard
simultaneously or for such witnesses to
meet outside the hearing to resolve or
isolate issues or conflicts;
(15) Order that trade secrets be
treated as confidential business
information in accordance with
§ 124.131; and
(16) Allow such cross-examination as
may be required for a full and true
disclosure of the facts. No cross-
examination shall be permitted on
questions of law or policy, or regarding
matters (such as the validity of effluent
limitations guidelines) that are not
subject to challenge in an NPDES
proceeding. No Agency witnesses shall
be required to testify or be made
available for cross-examination on such
matters. In determining whether cross-
examination shall be permitted the
Presiding Officer shall consider whether
it is likely to result in clarifying or
resolving a disputed issue of fact
material to the decision, and whether
the issue can be more economically
clarified in other ways. The party
seeking cross-examination has the
burden of demonstrating that this
standard has been met
(c) All direct and rebuttal evidence at
an evidentiary hearing shall be
submitted hi written form, unless, upon
motion and good cause shown, the
Presiding Officer determines that oral
presentation of the evidence on any
particular fact will materially assist in
the efficient identification and
clarification of the hearing issues.
Written testimony shall be prepared in
narrative form. To the extent that
testimony is to be submitted in writing.
the Presiding Officer may set dates for
the filing of such evidence with the
Regional Hearing Clerk as follows:
(1) The participant with the burden of
going forward to present an affirmative
case upon an issue (as defined in
§ 124.85(a) of these regulations) shall file
direct testimony first.
(2) All participants other than the
participants specified in the preceding
subsection shall file their direct
testimony on said issue not later than 20
days after the date of the filing of the
testimony under the preceding
subsection.
(3) All rebuttal testimony shall be
filed no later than 30 days after the date
of the filing of testimony under
paragraph (c)(l) of this section.
(d)(l) The Presiding Officer shall
admit all relevant, competent and
material evidence, except evidence that
is unduly repetitious. Evidence may be
received at any hearing even though
inadmissible under the rules of evidence
applicable to judicial proceedings. The ""
weight to be given evidence shall be
determined by its reliability and
probative value.
(2) The administrative record defined
by § 124.64 shall be admitted and
received hi evidence. Any party may
move that a sponsoring witness be
provided for a portion or portions of the
administrative record. The Presiding
Officer, upon finding that the standards
for cross-examination of § 124.85(b)(3)
have been met and that the
administrative record taken as a whole
indicates legitimate doubt about such
portion of the record, shall grant such .
motion and direct the appropriate party
to produce such witness. If a sponsoring
witness cannot be provided, the
Presiding Officer may reduce the weight
afforded the appropriate portion of the
record as a factual statement
accordingly.
[Comment: Receiving the administrative
record into evidence automatically serves
several purposes: (1) It documents the prior
course of the proceeding; [2] it provides 3
record of the views of affected persons for
consideration by the agency decisionmaker;
and [3) it provides factual material for use by
the decisionmaker. Subject to § 124.76,
parties are free to contest the factual portions
of the administrative record in the hearing,
and to argue that portions of it should not be
given weight unless sponsored by a witness
who will be available for cross-examination.]
„ (3) Whenever any evidence or
testimony is excluded by the Presiding
Officer as inadmissible* all such
evidence or testimony existing in
written form shall remain a part of the
record as an offer of proof. The party
seeking the admission of oral testimony
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
32943
may make an offer of proof, which shall
consist of a brief statement on the
record describing the testimony
excluded. .
- (4) Where two or more parties have
substantially similar interest and
positions, the presiding Officer may
' limit the number of attorneys or other
party representatives who will be -
permitted to cross-examine and to make'
and argue motions and objections on
behalf of such parties. Attorneys may,
however, engage in cross-examination
relevant to matters not adequately
covered by previous cross-examination.
(5) Rulings of the Presiding Officer on
the admissibiliry of evidence or
testimony, the propriety of cross-
examination, and other procedural
matters shall appear in the record and
shall control further proceedings, unless
reversed as a result of an interlocutory
appeal taken under § 124.90,
- (6) All objections shall be made
promptly or be deemed waived. Parties
shall be presumed to have taken
exception to an adverse ruling. No
objection shall be deemed waived by
further participation in the hearing.
(e) Parties may at any time stipulate
to relevant facts or to settlement
However, ail settlements to which the
Agency is a party must be approved by
the EPA Deputy Assistant Administrator
for Water Enforcement in accordance
with § 124.133.
§124.86 Motions.
(a) Any party may make a motion,
(including a motion to dismiss a
particular claim or a contested issue), to
the Presiding Officer about any matter
relating to the proceeding. All motions
shall be filed and served as provided in
§ 124.80 except those made on the
record during an oral hearing before the
Presiding Officer.
(b) Within 10 days after service of any
written motion, any party to the
proceeding may file a response to the
motion. The time for response may be
shortened to three days or extended for
an additional ten days by the Presiding
Officer for good cause shown.
(c) Notwithstanding § 122.15, any
party may file with the Presiding Officer
a motion seeking to apply to the permit
any regulatory or statutory requirement
issued or made available after the
issuance of the permit under § 124.61.
The Presiding Officer shall grant any
motion to apply a new statutory
requirement unless he or she finds it
contrary to legislative intent The
Presiding Officer may grant a motion to
apply a new regulatory requirement
where appropriate to carry out the
purposes of the Act and where no party
would be unduly prejudiced thereby.
§ 124.87 Record of hearings.
(a) All orders issued by the Presiding
Officer, transcripts of oral hearings or
arguments, written statements bf
position, written direct and rebuttal
testimony, and any other data, studies,
reports, documentation, information and
other written material of any kind
submitted in the proceeding shall be a
part of the record of the hearing, and
shall be available except as provided in
§ 124.131 to the public in the office of the
Regional Hearing Clerk promptly upon
receipt in that office. -
(b) Evidentiary hearings shall be
either stenographically reported
verbatim or tape recorded, and
thereupon transcribed. After the
hearing, the reporter shall file with the
Regional Hearing Clerk (i) the original of
the transcript, and (ii) the exhibits
received or offered into evidence at the
hearing.
(c) The Regional Hearing Clerk shall
promptly notify each of the parties of
the filing of the certified transcript of
proceedings. Any party who desires a
copy of the transcript of the hearing may
obtain a copy of the hearing transcript
from the Regional Hearing Clerk upon
payment of costs.
(d) The Presiding Officer shall allow
witnesses, parties, and their counsel an
opportunity to submit such written
proposed corrections of the transcript of
any oral testimony taken at the hearing,
pointing out errors that may have been
made in transcribing the testimony, as
are required to make the transcript
conform to the testimony. Except in
unusual cases, no more than thirty days
. shall be allowed for submitting such
corrections from the day a complete
transcript of the hearing becomes
available.
§ 124.88 Proposed findings of fact and
conclusions; brief.
Within 45 days after the certified
transcript is filed, any party may file
with the Regional Hearing Clerk
proposed findings of fact and
conclusions and a brief in support
thereof, each containing appropriate
reference to the record. A copy of any
such findings, conclusions and brief
shall be contemporaneously served
upon every other party and the Presiding
Officer. The Presiding Officer, for good
cause shown, may extend the time for
filing the proposed findings and
conclusions and/or th« brief. The
Presiding Officer may allow reply briefs.
§124.89 Decisions.
(a] The Presiding Officer shall review
and evaluate the record, including the
proposed findings and conclusions, any
briefs filed by the parties and any
interlocutory decisions pursuant to
§ 124.90 and shall issue and file his
initial decision with the Regional
Hearing Clerk. The Regional Hearing
Clerk shall immediately serve copies of
the initial decision upon all parties (or
their counsel of record) and the
Administrator. - ..
(b) The initial decision of the
Presiding Officer shall automatically
become effective thirty (30) days after
its service unless within such time:
(1) A party files a petition for review
by the Administrator pursuant to
§ 124.101; or
(2) The Administrator sua sponle files
a notice that he or she will review the.
decision pursuant to § 124.101.
§ 124.90 Interlocutory appeal
(a) Except as provided in this section,
appeals to the Administrator may be
taken only under § 124.101. Appeals
from orders or rulings may be taken
under this section only if the Presiding
Officer, upon motion of a party, certifies
those orders or rulings to the
Administrator for appeal on the record.
Requests to the Presiding Officer for
certification must be filed hi writing
within ten days of service of notice of
the order, ruling, or decision and shall
state briefly the grounds relied on.
{b) The Presiding Officer may certify
an order or ruling for appeal to the -
Administrator if;
(1) The order or ruling involves an
important question on which there is
substantial ground for difference of
opinion; and
(2) Either.
(i) An immediate appeal of the order
or ruling will materially advance the
ultimate completion of the proceeding,
or,
(ii) A review after the final order is
issued will be inadequate or ineffective;
and,
(3) Such an appeal is necessary to
prevent exceptional delay, expense or
prejudice to any party.
(c) To the extent an appeal under this
section involves issues of law, the
Administrator shall refer those issues to
the General Counsel for determination
subject to his or her approval.
(d) If the Administrator decides that
certification was improperly granted, he
or she shall decline to hear the appeal.
The Administrator shall accept or
decline all interlocutory appeals within
30 days of then- submission; if the
Administrator takes no action within
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32944 Federal Register / Vol. 44, No. Ill / Thursday, June 7. 1979 / Rules and Regulations
that time, the appeal shall be considered
dismissed. When the Presiding Officer
declines to certify an order or ruling to
the Administrator for an interlocutory
appeal, it may be reviewed by the
Administrator only upon appeal from
the initial decision of the Presiding
Officer, except when the Administrator
determines upon motion of a party and
in exceptional circumstances, that to
delay review would not be in the public
interest Such motion shall be made
within five days after receipt of
notification that the Presiding Officer
has refused to certify an order or ruling
forr interlocutory appeal to the
Administrator. Ordinarily, the
interlocutory appeal will be decided on
the basis of the submissions made to the
Presiding Officer. The Administrator
may, however, allow briefs and oral
argument
(e) The Presiding Officer may stay the
proceeding pending a decision by the
Administrator upon an order or ruling '
certified by the Presiding Officer for an
interlocutory appeal, or upon the denial
of such certification by the Presiding
Officer. Only in exceptional
circumstances shall proceedings be
stayed.
(f) The failure to request an
interlocutory appeal shall not foreclose
a party from taking exception to an
order or ruling in an appeal under
§ 124.101.
§ 124.101 Appeal to the Administrator.
(a}(l) Within 30 days after service of
an initial decision, or the denial in
whole or in part of a request for an
evidentiary hearing, any party or
requester, as the case may be, may
appeal any matter set forth in such
initial decision or denial or in any
adverse order or riding to"which the
party objected during the hearing, by
filing with the Administrator notice of
appeal and a petition for review. Proof
of service upon all parties shall
accompany such filing. The petition
shall include a statement of the
supporting reasons for such exceptions
and, where appropriate, a showing that
the initial decision contains:
(i) A finding of fact or conclusion of
law which is clearly erroneous, or
(ii) An exercise of discretion or policy
which is important and which the'
Administrator should, hi his discretion,
review.
(2) Within 15 days after service of a
petition for review under paragraph
(a)(l), any other party to the hearing hi
question may file a responsive petition.
(3] Policy or legal conclusions made in
the course of denying a request for an
evidentiary hearing may be reviewed
and changed by the Administrator in an
appeal under this section.
(b) Within 30 day of an initial decision
or denial of an evidentiary hearing the
Administrator may, sua sponte, review
such decision. Within seven (7) days
after the Administrator has decided
under this section to review an initial
decision or the denial of an evidentiary
hearing, notice of that decision shall be
served by mail upon all affected parties
and the Regional Administrator.
(c) Within a reasonable tune following
the filing of the petition for review, the
Administrator shall issue an order either
granting or denying the petition for
review. When the Administrator grants
a petition for review or determines
under paragraph (b) to review a
decision, the Administrator may notify
the parties that only certain issues shall
be briefed.
(d) Notwithstanding the grant of a
petition for review or a-determination
under paragraph (b] to review a
decision, the Administrator may
summarily affirm without opinion an
intitial decision or the denial of an
evidentiary hearing.
(e) To the extent an appeal under this
section involves issues of the law, the
Administrator shall refer those issues to
the General Counsel for determination
subject to his or her approval.
(f) A petition to the Administrator
under paragraph (a) for review of any
initial decision or the denial of an
evidentiary hearing is, under 5 U.S.C.
§ 704, a prerequisite to the seeking of
judicial review of the final decision of
the Agency.
(g)(l) If a party timely files a petition
for review or if the Administrator sua
sponte orders review, then, for purpose
of judicial review under section 509(fa) of
the Act, final Agency action on an issue
occurs after EPA review procedures are
exhausted and the Administrator's
decision is issued and is implemented as
follows:
(i) If the Administrator denies review
or summarily affirms without opinion as
provided in § 124.101{d) then the initial
decision or denial becomes effective
upon the service of notice of such
decision.
(ii) If the Administrator issues a
decision without remanding the
proceeding then the final permit,
redrafted as required by the
Administrator's decision, shall be
reissued and served upon all parties to
such appeal hi accordance with
paragraph (g)(2) of this section.
(Hi) If the Administrator issues a
decision remanding the proceeding then
final Agency action occurs upon
completion of the remanded proceeding.
including any Administrator appeals to
the Administrator therefrom.
(2J For purposes of judicial review
under section 509(b) of the Act, final
Agency action occurs ten days after a
final permit is issued. After Agency
review procedures are exhausted a final
permit shall be prepared and issued by
the Regional Administrator:
(i) When the Administrator issues
notice to the parties that review has
been denied if review is denied;
(ii) When the Administrator issues a
decision if review is not denied and the
Administrator does not remand the
proceedings; or
(iii) Upon the completion of remand
proceedings if the proceedings are
remanded unless the Administrator's
remand order specifically provides that
appeal of the remand decision will be
required in order to exhaust
administrative remedies.
(h) The petitioner may file a brief in
support of the petition within 21 days
after the Administrator has granted a
petition for review. Any other party may
file a responsive brief within 21 days of
service of a brief hi support of the
petition. The petitioner may file a reply
brief within 14 days of service of the
responsive brief and any person may file
an amicus brief for the consideration of
the Administrator. If the Administrator
determines, sua sponte, to review an
initial Regional Administrator's decision
or the denial of an evidentiary hearing,
the Administrator shall notify the
parties of the briefing schedule.
(i) Review by the Administrator of an
initial decision or the denial of an
evidentiary hearing shall be limited to
issues, specified under paragraph (a) of
this section, except after notice to all
parties, the Administrator may raise and
, decide other matters which he or she
considers material on the basis of the
record.
Subpart I—Non-Adversary Procedures
for Initial Licensing
§124.111 Applicability.
(a) Except as set forth in this Subpart,
this Subpart applies hi lieu of, and to the
complete exclusion of, Subparts E
through H in the following cases:
(1) In all proceedings for the issuance
of a modified permit under section
301(h) of the Act except that hi such
proceedings the terms "Administrator or
a person designated by the
Administrator" shall be substituted hi
this Subpart for the term "Regional
Administrator"; and
(2) In any proceedings for the issuance
of any other permit which constitutes
"initial licensing" under the _^
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Federal Register / Vol. 44. No. Ill / Thursday. June 7. 1979 / Roles and Regulations 32935
Administrative Procedure Act where
the Regional Administrator elects to
apply this Subpart and explicitly so
states in the public notice of the draft
permit
(b) The parties to an evidentiary
hearing that yirould otherwise be held
under Subpart H may agree to conduct
that hearing in accordance with this
Subpart Any applicant for an NPDES
permit which is not an initial license
may request when requesting an
evidentiary hearing under § 124.74, that
its application be processed under the
procedures of this Subpart If the
Regional Administrator agrees with this
request and if a hearing is granted, the
notice of the hearing shall be issued
under § 124.118 shall include a
statement that the permit will be
processed under the procedures set forth
in this Subpart unless a written
objection is received within 30 days. If
no such objection is received, the
application shall be processed hi
accordance with §§ 124.117-124.121 of
this Subpart except that any reference
to a draft permit shall be taken as
referring to the final permit If an
objection is received, Subparts F
through H shall be applied instead.
(cj "Initial licensing" includes both the
first grant of an NPDES permit to a •
discharger that has not previously held
an NPDES permit and the first decision
on any variance applied for by a
discharger.
§124.112 Relation to other subparts.
The following provisions of Subparts
E through H apply to proceedings under
this Subpart
(a) § 124.54 'Terms requested by the
Corps of Engineers and other
Government Agencies."
(b) § 124.62 "Final environmental
impact statement"
(c) § 124.65 "Early decision on certain
permit conditions."
(d) § 124.66 "Deferral of decision on
certain permit conditions."
(e) § 124.72 "Definitions."
(f) § 124.73 "Filing,"
(g) § 124.78 "Exparte
communications."
(h) § 124.80 "Filing and service."
(ij § 124.82 "Consolidation and
severance."
0) 1124.85(a) {burden of proof);
(k) 1124.86 "Motions."
(IJ § 124.87 "Record of hearings."
(m) § 124.90 "Interlocutory appeal"
§ 124.113 Public notice regarding draft
permits and permit conditions.
Public notice of the formulation of a
draft permit under this Subpart shall be
given as provided in § 124.41{i). At the
discretion of the Regional
Administrator, the comment period
specified hi this notice may include an
opportunity for a public hearing under
§ 124.42.
§124.114 Hearings.
(a) By the close of the comment period
set forth in § 124.113 (§ 124.41(i)). any
person may request the Regional
Administrator to hold a panel hearing
on the draft permit by submitting a
written request containing the following:
(1) A brief statement of the interest of
the person requesting the hearing;
(2) A statement of any objections to
the draft permit;
(3) A statement of the issues which
such person proposes to raise for
consideration at such hearing; and
(4) Statements meeting the
requirements of § 124.74(c)(l)-{5). ^-
(b] Whenever (1) a written request
satisfying the requirements of paragraph
(a) of this section has been received and
presents genuine issues of material fact,
or (2) the Regional Administrator
determines sua sponte that a hearing
under this Subpart is necessary or
appropriate, the Regional Administrator
shall serve written notice of the
determination on each person requesting
such hearing and the applicant and
shall provide public notice of the
determination in accordance with
1124.41Q). If the Regional Administrator
determines that a request filed under
paragraph (a) of this section does not
comply with the requirements of
paragraph (a) or does not present
genuine issues of fact the Regional
Administrator may deny the request for
the hearing and shall serve written
notice of such determination on all
persona requesting the hearing.
(c) The Regional Administrator may
decide before a draft permit is
formulated that a hearing should be held
under this Part In such a case the notice
issued under § 124.113 shall so state and
shall contain the information required
by 1124.41Q).
§ 124.115 Effect of denial or absence of
request for hearing.
If no request for a hearing is made
under § 124.114, or if all such requests
are denied under that section, the draft
permit shall be treated procedurally as if
it were a recommended decision issued
under § 124.124 of this Subpart except
that for purposes of § 124.125 and
§ 124.126 the term "hearing participant"
or "person who participated hi the
hearing" shall be construed to mean the
applicant and any "person who
submitted comments under § 124.41(i)
§124.116 Notice of hearing.
Upon granting a request for a hearing
under § 124.114 the Regional
Administrator shall promptly publish a
notice of the hearing as required under
5 124.410). The mailed notice shall
include a statement which indicates
whether the Presiding Officer or the
Regional Administrator will issue the
recommended decision.
§ 124.117 Request to participate In
hearing.
(a) Each person desiring to participate
in any hearing noticed under this
section, shall file a motion to participate
with the Regional Hearing Clerk by the
deadline set forth in the notice of the
grant of the hearing. The request shall
include:
(1) A brief statement of the interest of
the person in the proceeding;
(2) A brief outline of the points to be
addressed;
(3) An estimate of the time required;
and
(4) Statements meeting the
requirements of § 124.74(c)[l)-{5).
(5) If the request is submitted by an
organization, a non-binding list of the
persons to take part in the presentation.
(b) As soon as practicable, but hi no
event later than two weeks before the
scheduled date of the hearing, the
Presiding Officer shall make a hearing
schedule available to the public and
shall mail it to each person who
requested to participate in the hearing.
§ 124.118 Submission of written
comments on draft permit
(a) No later than 30 days before the
scheduled start of the hearing (or such
other date as may be set forth in the
notice of hearing), each party shall file
all of its comments on the draft permit,
based on information in the
administrative record and any other
information which is or reasonably
could have been available to that
person. All comments shall include any
affidavits, studies, data, tests, or other
materials relied upon for making any
factual statements hi the comments.
(b)(l) Written comments filed under
paragraph (a) of this section shall
constitute the bulk of the evidence
submitted at the hearing. Oral
statements at the hearing should be
brief and hi the nature of argument
They should be restricted either to
points that could not have been made hi
written comments, or to emphasizing
points which are made hi the comments,
but which the participant believes can
be more effectively argued in the
hearing context
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32946 Federal Register / Vol. 44, No. Ill /Thursday, June 7, 1979 / Rules and Regulations
(2) Notwithstanding the foregoing,
within two weeks prior to the deadline
specified in paragraph (a) of this section
for the filing of comments, any party
who has filed a request to participate in
the hearing may move to submit all or
part of its comments orally at the
hearing in lieu of submitting written
comments and the Presiding Officer
shall, within one week, grant such
motion if the Presiding Officer finds that
such person will be prejudiced if
required to submit such comments in
written form,
(c) Parties to any hearing may submit
written material in response to the
comments filed by other participants
under paragraph (a) of this section at the
time they appear at the panel stage of
the hearing under § 124.120.
|124.119 Presiding Officer.
(a)(l) Upon the granting of a request
for a hearing the Regional Administrator
shall, as soon as practicable, request
that the Chief Administrative Law Judge
assign an Administrative Law Judge as
Presiding Officer. The Chief
Administrative Law Judge shall ~ "~ '
thereupon make such assignment
(2) If all parties to the hearing waive
in writing their statutory right to have an
. Administrative Law Judge preside at the
hearing, the Regional Administrator
shall name a lawyer permanently or
temporarily employed by the Agency
and without prior connection with the
proceeding to serve as Presiding Officer.
(b) It shall be the duty of the Presiding
Officer to conduct a fair and impartial
hearing. The Presiding Officer shall have
the authority:
(1) Conferred by § 124.85(b)(lHl5).
§ 124.83(b) and (c); and
(2) To receive relevant evidence.
provided that all comments under
- § 124.118, the record of the panel hearing
under § 124.120, and the administrative
record, as defined in § 124.35 (or in the
case of voluntary use of these
procedures under § 124.111{a}{3), the
administrative record for the final
permit under § 124.64) shall be received
in evidence.
§124.120 Panel hearing.
(a) A Presiding Officer shall preside at
each hearing held under this Subpart
An EPA panel shall also take part in the
hearing. The panel shall consist of three
or more temporary or permanent EPA
employees having special expertise in
areas related to the hearing issue, at
least two of whom shall not have taken
part in preparing the draft permit. If
appropriate for the evaluation of new or
different issues presented at the hearing,
the panel membership may change or
may include persons not employed by
EPA.
(b) At the time of the hearing notice
pursuant to § 124.116, the Regional
.Administrator shall designate the
persons who shall serve as panel
members for the hearing and the
Regional Administrator shall file with
the Regional Hearing Clerk the name,
address and area of expertise of each
person so designated. The Regional
Administrator may also designate EPA
e.mployees who will provide staff
support to the panel but who may or
may not serve as'panel members. Such"
designated person shall be subject to the
exparte rules in 1124.78. The Regional
Administrator may also designate
Agency trial staff as defined in § 124.79
for the hearing.
[c] At any time before the close of the
panel hearing, the Presiding Officer,
after consultation with the panel, may
request that any person having
knowledge concerning the issues raised
in the hearing and not then scheduled to
participate therein appear and testify at
the hearing.
(d) The panel members may question
any person participating in the panel
hearing. Cross-examination by persons
other than panel members shall not be
permitted at this stage of the proceeding
except where the Presiding Officer
determines, after consultation with the
panel, that such cross-examination
would expedite consideration of the
issues. However, the parties may submit
written questions to the Presiding
Officer for the Presiding Officer to ask
the participants, and the Presiding
Officer may, after consultation with the
.panel, and at his or her sole discretion,
ask these questions or permit a panel
member to ask them.
(e) Within ten days after the close of
the hearing, any of the participants shall
submit such additional written
tsstimony, affidavits, information or
' material as such participant deems
relevant or which the panel may request
of such participant These additional
submissions shall be filed with the
Regional Hearing Clerk and shall be a
part of the hearing record.
f 124.121 Opportunity for cross-
examination.
(a) Any participant in a panel hearing
may submit a written request to cross-
examine on any issue of material fact
The motion shall be submitted to the
Presiding Officer within 15 days after a
full transcript of the panel hearing is
filed with the Regional Hearing Clerk
and shall specify:
(1) The disputed issue(s) of material
fact regarding which cross-examination
is requested. This shall include an
explanation of why the questions at
issue are factual, rather than of an
analytical or policy nature, the extent to
which they are in dispute in light of the
record made up to that stage, and the
extent to which they are material to the
decision on the application; and '
[2] The personfs) a participant desires
to cross-examine, and an estimate of the
time necessary. This shall include a
statement as to why the cross-
examination will result in resolving the
issue of material fact involved. ..
(b) After receipt of all motions for
cross-examination under paragraph (a),
the Presiding Officer, after consultation
with the hearing panel, shall promptly
issue an order either granting or denying
each such request If any request for
cross-examination is granted, the order
shall specify:
(1) The issues on which cross-
examination is granted;
(2) The persons tq be cross-examined
on each issue;
(3) The persons allowed to conduct
cross-examination;
(4) Time limits for the examination of
witnesses by each cross-examiner; and
(5) The date, time and place of the
supplementary hearing at which cross-
examination shall take place.
In issuing this ruling, the Presiding
Officer may determine that one or more
participants have the same or similar
interests and that to prevent unduly
repetitious cross-examination, they
should be required to choose a single
representative for-purposes of cross-
examination. In such a case, the order
shall simply assign time for cross-
examination by that single
representative without identifying the
representative further. If said
participants with the same or similar
interests shall fail to designate such
single representative, then the Presiding
Officer shall divide the assigned time
among the representatives of such
participants or issue such other order as
justice may require.
(c) The Presiding Officer and to the
extent possible, the members of the
hearing panel shall be present at the
supplementary hearing. During the
course of the hearing, the Presiding
Officer shall have authority to modify
any order issued under paragraph (b) of
this section. A record will be made
under § 124.87.
(d)(l) No later than the time set for
requesting cross-examination, a hearing
participant may request that alternative
methods of clarifying the record (such as
the submission of additional written
information] be used in lieu of or in
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32947
addition to cross-examination. The
Presiding Officer shall issue an order
granting or denying such request at the
time he issues (or would have issued) an
order under paragraph (b) of this
section. If the request is granted, the
order shall specify the alternative
provided and, any other relevant
information (e.g., the due date for
submitting wptten information).
(2) In passing on any request for
cross-examination submitted under
paragraph (a) of this section, the
Presiding Officer may, as a precondition
to ruling- on the merits of such request,
require alternative means of clarifying
the record to be used whether or not a
request to do so has been made under
the immediately preceding paragraph.
The person requesting cross-
examination shall have one week to
comment on the results of utilizing such
alternative means, following which the
Presiding Officer, as soon as practicable,
shall issue an order granting or denying
such person's request for cross-
examination. '•
(e) The provisions of § 124.85{d)(2) .
apply to proceedings under this Subpart
§ 124.122 Record for final permit
(a) The record on which the final
permit shall be based in any proceeding ~
under this Subpart (other than a
proceeding by consent of the parties
under § 124.111(a)(3)) consists of:
(1) The administrative record
compiled under § 124.35;
(2) Any material submitted under
§ 124.78 relating to ex parte contacts;
(3) All notices issued under 1124.113;
(4) All requests for hearings, and
rulings on those requests received or
issued under § 124.114;
(5) Any notice of hearing issued under
§ 124.116;
(6) Any request to participate in the
hearing received under § 124.117;
(7) All comments submitted under
1124.118, any motions made under that
section and the rulings on them, and any
comments filed under § 124.113(b)(9);
(8) The full transcript and other
material received into the record of the
panel hearing under § 124.120;
(9) Any motions for, or rulings, on
cross-examination filed or issued under
§ 124.121;
(10) Any motions for, orders for and
the results of, any alternatives to cross-
examination under § 124.121; and
(11) The full transcript of any cross-
examination held.
(b) In any proceedings under this
Subpart involving a permit which is not
an initial license and which are
conducted under § 124.111(a)(3), the
record for decision shall consist of:
(1) The administrative record under
. §124.64;
(2) All requests for hearing-submitted
under 1124.74, and all rulings on those
requests; and
(3) The items specified in
subparagraph in subparagraphs (a)(4)
though (a)(ll) of this section.
§ 124.123 Filing of brief, proposed
findings of fact and conclusions of law and
proposed modified permit
Unless otherwise ordered by the
Presiding Officer, each party may,
within 20 days after all requests for
cross-examination are denied or after a
transcript of the full hearing including
any cross-examination becomes
available, submit proposed findings of
fact; conclusions regarding material
issues of law, fact, or discretion; a
proposed modified NPDES permit (if
such person is urging that the draft
permit should be modified); and a brief
in support thereof, together with
references to relevant pages of
transcript and to relevant exhibits.
Within 10 days thereafter each party
may file a reply brief concerning matters
contained hi opposing briefs and
containing alternative findings of fact;
conclusions regarding material issues of
law, fact, or discretion; and a proposed
modified permit. Oral argument may be
held at the discretion of the Presiding
Officer on motion of any party or sua
sponte.
§124.124 Recommended decision.
The person named to prepare the
decision shall, as soon as practicable
after the conclusion of the hearing,
evaluate the record of the hearing and
prepare and file a recommended
decision with the Regional Hearing
Clerk. That person may consult with,
and receive assistance from, any
taember of the hearing panel in drafting
the recommended decision, and may
delegate the preparation of the
recommended decision to the panel or to
any member or members of it. This
decision shall contain findings of fact,
conclusions regarding all material issues
of law, and a recommendation as to
whether and in what respects the draft
permit shall be modified. After the
recommended decision has been filed,
the Regional Hearing Clerk shall serve a
copy of such decision on each party and
upon the Administrator.
§ 124.125 Appeal from or review of
recommended decision.
Within 30 days after service of the
recommended decision, any party may
take exception to any matter set forth in
such decision or to any_adverse order or
ruling of the Presiding Officer to which
such party .objected, and may appeal
such exceptions to the Administrator as
provided in § 124.101, except that
references in § 124.101 to "initial
decision" will mean recommended
decision under § 124.124.
§ 124.126 Final decision.
As soon as practicable after all appeal
proceedings have been completed, the
Administrator shall issue a final t
decision. Such final decision shall
include findings of fact; conclusions
regarding material issue of law, fact, or
discretion, as well as reasons therefor;
and a modified NPDES permit to the
extent appropriate. It may accept or
reject all or part of the recommended
decision. The Administrator may
delegate some or all of the work of
preparing this decision to a person or
persons without substantial prior
connection with the matter. The
Administrator or a person designated by
the Administrator may consult with the
Presiding Officer, members of the
hearing panel or any other EPA
employee in preparing the final decison.
The Hearing and Record Clerk shall file
a copy of the decision on all hearing
participants.
§ 124.127 Final decision if there Is no
review.
If no party appeals a recommended
decision to the Administrator, and if the
Administrator does not elect to review
it, the recommended decision is deemed
the final decision of the Agency upon
the expiration of the time for filing any
appeals.
Subpart J—Miscellaneous
§124.131 Public access to information.
(a) All permit applications, effluent
data, certifications issued under section
401 of the Act and Subpart C of this
Part, comments of all governmental
agencies on a permit application, and
draft permits and fact sheets prepared
shall be available to the public without
restriction.
(b) Access to other information shall
be governed by the provisions of 40 CFR
Part 2.
§ 124.132 Delegation of authority; time
limitations.
(a) The Administrator may delegate to
a Judicial Officer any or all of his or her
authority to act under this Subpart.
(b) The failure of the Administrator,
Regional Administrator or Presiding
Officer to do any act within the time
periods specified herein shall not be
construed as a waiver or in derogation
of any rights, powers or authority of the
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32948 Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
United States Environmental Protection
Agency.
(c) Upon a showing by any party that
it has been prejudiced by a failure of the
Administrator, Regional Administrator,
or Presiding Officer to do any act-vvithin
the time periods specified herein, the
Administrator, Regional Administrator,
or Presiding Officer, as the case may be,
may grant such party such relief of a
procedural nature (including extension
of any time for compliance or other
action) as may be appropriate.
§ 124.133 EPA headquarters' approval of
stipulation or consent agreement
No evidentiary hearing under Subpart
H or non-adversary initial licensing
hearing under Subpart I may be
resolved, settled or decided, in either
whole or substantial part, by the
stipulation or consent of the parties
thereto, unless and until the stipulation
or consent agreement is approved and
signed by the Deputy Assistant
Administrator for Water Enforcement.
No stipulation or consent without such
approval and signature shall bind EPA
or have any force or effect or be filed in
any proceeding.
§124.134 Additional time after service by
mail.
Whenever a party or interested
person has the right or is required to do
some act or take some proceeding
within a prescribed period after the
service of notice or other paper upon
him or her by mail, three days shall be
added to the prescribed time.
§ 124.135 Effective date of Pert 124.
(a) All provisions of this Part shall
apply to any permit were the draft
permit was included in a public notice
after October 12,1979.
(b) All the provisions of Subpart H
other then § 124.78 and the provisions of
§§ 124.83(c) and 124.85(d)(l) for
automatic receipt of the administrative
record into evidence shall apply to all
hearings for which the notice of hearing
is issued after [60 days after date of
issuance] provided that the Presiding
Officer at any such proceeding may vary
or suspend any of the terms of these
regulations hi any hearing that begins
before January 1,1980, to avoid
inconvenience or injustice.
(c) Section 124.64{c)(2) provides a
mechanism by which EPA may in effect
make permits issued before the effective
date of this Part subject to its
provisions. - -
7. Part 125 is revised to read as
follows:
PART 125—CRITERIA AND
STANDARDS FOR THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
Subpart A—Criteria and Standards for
Imposing Technology-Based Treatment
Requirements Under Section 301(b) of the
Act
Sec.
125.1 Purpose and scope;
125.2 Definitions.
125.3 Technology-based treatment ,
requirements in permits.
Subpart B—Criteria for issuance of Permits
to Aquaculture Projects
125.10 Purpose and scope.
125.11 Criteria.
Subpart C—Criteria for Extending
Compliance Dates for Facilities Installing
Innovative Technology Under Section
301(K) of the Act [Reserved]
Subpart D—Criteria and Standards for
Determining Fundamentally Different
Factors Under Sections 301(b)(1XA),
301(b)(2) (A) and (E), and 307(b) of the Act
125.30 Purpose and scope.
125.31 Criteria.
125.32 Method of application.
Subpart E—Criteria for Granting Economic
Variances From Best Available Technology
Economically Achievable Under Section
301(c) of the Act [Reserved]
Subpart F—Criteria for Granting Water
Quality Related Variances Under Section
301(g) of the Act [Reserved]
Subpart G—Criteria for Modifying the
Secondary Treatment Requirement Under
Section 301(h) of the Act [Reserved]
Subpart H—Criteria for Determining
Alternative Effluent Limitations Under
Section 316(a) of the Act
125.70 Purpose and scope.
125.71 Definitions.
125.72 Early screening of applications for
section 316(a) variances. - - (
125.73 Criteria and standards for the
determination of alternative effluent
limitations under section 3T6(a).
Subpart I—Criteria Applicable To Cooling
Water Intake Structures Under Section
316(b) of the Act [Reserved]
Subpart J—Criteria for Extending
Compliance Dates Under Section 301(i) of
the Act
125.90 Purpose and scope.
125.91 Definition.
125.92 Requests for permit modification and
issuance under section 301(i)(l) of the
Act.
125.93 Criteria for permit modification and
issuance under section 301(i)(l) of the
Act
125.94 Permit terms and conditions under
section 301(i}(l) of the Act.
'125.95 Requests for permit modification or
issuance under section 301(i}{2) of the
Act
125.96 Criteria for permit modification or .
issuance under section 301(i}(2) of the
Act '
125.97 Permit terms and conditions under
- section 301{i)(2) of the Act
Subpart K—Criteria and Standards for Best
Management Practices Under Section
304(e) of the Act "
125.100 Purpose and scope-.
125.101 Definition.
125.102 '• Applicability of best management
practices. -
125.103 Permit terms and conditions.
125.104 Best management practices
programs. .. '
Subpart L—Criteria and Standards for
Imposing Conditions for the Disposal of
Sewage Sludge Under Section 4C5 of the
Act [Reserved]
Subpart M—Ocean Dumping Criteria Under
Section 403 of the Act [Reserved]
Authority: Clean Water Act as-amended
by the Clean Water Act of 1977, 33 U.S.C
1251 et seq. - -'
Subpart A—Criteria and Standards for
Technology-Based Treatment
Requirements Under Sections 301(b)
and 402 of the Act
-' ,
§ 125.1 Purpose and scope.
This Subpart establishes criteria and
standards for the imposition of ..
technology-based treatment
requirements in permits undet-section
301 (b) of the Act, including the
application of EPA promulgated effluent-
limitations and case-by-case
• determinations of effluent limitations
under section 402(a){l) of the Act.
§125.2 Definitions.
Unless otherwise noted, the
definitions in Parts 122,123, and 124
apply to this Part.
§ 125.3 Technology-based treatment
requirements In permits. . ' ~
(a) General. Technology-based
treatment requirements under section
301 (b) of the Act represent the minimum
level of control that must be imposed in
a permit issued under section 402 of the
Act. (See §§ 122.14 and 122.15 for a
discussion of additional or more
stringent effluent limitations and
conditions.) Permits shall contain the
following technology-based treatment
requirements in accordance with the
following statutory deadlines;
(1) For POTW's, effluent limitations
based upon:
(i) Secondary treatment—from date of
permit issuance; and
(ii) The best practicable waste
treatment technology—not later than
July 1,1983; and
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32949
(2) For dischargers other than POTWs
except as provided in § 122.47(d),
effluent limitations requiring:
(i) The best practicable control
technology currently available (BPT)—
from date of permit issuance;
(ii) For conventional pollutants, the
best conventional pollutant control
technology (BCT)—not later than July 1,
1984;
(iii) For all toxic pollutants referred to
in Committee Print No. 95-30, House
. Committee on Public Works and
Transportation, the best available
technology economically achievable
(BAT) — not later than July 1,1984;
(iv) For all toxic pollutants other than
those listed in Committee Print No. 95-
30, effluent limitations based on the
BAT not later than three years after the
date such effluent limitations are
incorporated into an NPDES permit and
(v) For all pollutants which are neither
toxic nor conventional pollutants,
effluent limitations based on BAT not
later than three years after the date such
effluent limitations are incorporated into
an NPDES permit, or July 1.1984,
whichever is later, but in no case later
than July 1,1987.
(b) Statutory variances and
extensions. (1) The following variances
from technology-based treatment
requirements are authorized by the Act
and may be applied for under § 124.51;
(i) For POTWs, a section 301[hJ
marine discharge variance from
secondary treatment (Subpart G);
(ii) For dischargers other than
POTWs;
(A) A section 301(c) economic
variance from BAT {Subpart E);
(B) A section 301 (g) water quality
related variance from BAT (Subpart F);
and
(C) A section 316(a) thermal variance
from BPT. BCT and BAT (Subpart H).
(2) The following extensions of
deadlines for compliance with
technology-based treatment
requirements are authorized by the Act
and may be applied for under § 124.51:
(i) For POTWs a section 301(i)
extension of the secondary treatment
deadline (Subpart J);
(ii) For dischargers other than
POTWs:
(A) A section 301(i) extension of the
BPT deadline (Subpart J); and
(B) A section 301(k) extension of the
BAT deadline (Subpart C).
(c) Methods of imposing technology-
based treatment requirements in
permits. Technology-based treatment
requirements may be imposed through
one of the following three methods:
(1) Application of EPA-promulgated
effluent limitations developed under
section 304 of the Act to dischargers by
category or subcategory. These effluent
limitations are not applicable to the
extent that they have been remanded or
withdrawn. However, in the case of a
court remand, determinations
underlying effluent limitations shall be
binding in permit issuance proceedings
where those determinations are not
required to be reexamined by a court
remanding the regulations. In addition,
dischargers may seek fundamentally
different factors variances from these
effluent limitations under § 124.51 and
Subpart D of this Part
(2) On a case-by-case basis under
section 402(a)(l) of the Act to the extent
that EPA-promulgated effluent
limitations are inapplicable. The permit
writer shall apply the appropriate
factors listed in section 304 of the Act,
and shall consider.
(i) The appropriate technology for the
category or class of point sources of -
which the applicant is a member, based
upon all available information
(including EPA draft or proposed
development documents or guidance);
and
(ii) Any unique factors relating to the
applicant.
[Comment: These factors must be considered
in all cases, regardless of whether the permit
is being issued by EPA or an approved State.)
(3) Through a combination of the
methods in paragraphs (c) (1) and (2) of
this section. Where promulgated effluent
limitations guidelines only apply to
certain aspects of the discharger's
operation, or to certain pollutants, other
aspects or activities are subject to
regulation on a case-by-case basis in
order to carry out the provisions of the
Act.
(d) Technology-based treatment
requirements are applied prior to or at
the point of discharge.
(e) Technology-based treatment
requirements cannot be satisfied
through the use of "non-treatment"
techniques such as flow augmentation
and in-stream mechanical aerators.
However, these techniques may be
considered as a method of achieving
water quality standards on a case-by-
case basis when:
(1) The technology-based treatment
requirements applicable to the discharge
are not sufficient to achieve the
standards;
(2) The discharger agrees to waive
any opportunity to request a variance
under sections 301 (c), (g) or (h) of the
Act; and
(3) The discharger demonstrates that
such a technique is the-preferred
environmental and economic method to
achieve the standards after
consideration of alternatives such as
advanced waste treatment, recycle and
reuse, land disposal, changes in
operating methods, and other available
methods.
(f) Technology-based effluent
limitations shall be established under
this Subpart for solids, sludges, filter
backwash, and other pollutants removed
in the course of treatment or control of
wastewaters in the same manner as for
other pollutants.
Subpart B—Criteria for Issuance of
Permits to Aquaculture Projects
§ 125.10 Purpose and scope.
(a) These regulations establish
guidelines under sections 318 and 402 of
the Act for approval of any discharge of
pollutants associated with an
aquaculture project.
(b) The regulations authorize, on a
selective basis, controlled discharges
which would otherwise be unlawful
under the Act in order to determine the
feasibility of using pollutants to grow
aquatic organisms which can be
harvested and used beneficially. EPA
policy is to encourage such projects,
while at the same time protecting other
beneficial uses of the waters.
(c) Permits issued for discharges into
aquaculture projects under this Subpart
are NPDES permits and are subject to
the applicable requirements of Parts 122,
123 and 124. Any permit shall include
such conditions (including monitoring
^nd reporting requirements) as are
necessary to comply with those Parts.
Technology-based effluent limitations
need not be applied to discharges into
the approved project except with
respect to toxic pollutants.
§125.11 Criteria.
(a) No NPDES permit shall be issued
to an aquaculture project unless:
(1) The Director determines that the
aquaculture project
(i) Is intended by the project operator
to produce a crop which has significant
direct or indirect commercial value (or is
intended to be operated for research
into possible production of such a crop);
and
. (ii) Does not occupy a designated
project area which is larger than can be
economically operated for the crop
under cultivation or than is necessary
for research purposes.
(2) The applicant has demonstrated, to
the satisfaction of the Director, that the
use of the pollutant to be discharged to
the aquaculture project will result in an
increased harvest of organisms under
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32950 Federal Register / VoL 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
culture over what would naturally occur
in the area;
(3) The applicant has demonstrated, to
the satisfaction of the Director, that if
the species to be cultivated in the
aquaculture project is not indigenous to
the immediate geographical area, there
will be minimal adverse effects on the
flora and fauna indigenous to the area,
and the total commercial value of the
introduced species is at least equal to
that of the displaced or affected
indigenous flora and fauna;
(4) The Director determines that the
crop will not have a significant potential
-' for human health hazards resulting from
its consumption;
(5) The Director determines that
migration of pollutants from the
designated project area to water outside
of the aquaculture project will not cause
or contribute to a violation of water
quality standards or a violation of the
applicable standards and limitations
applicable to the supplier of the
pollutant that would govern if the
aquaculture project were itself a point
source. The approval of an aquaculture
project shall not result in the
enlargement of a pre-existing mixing
zone area beyond what had been
designated by the State for the original
discharge. .
(b) No permit shall be issued for any
aquaculture project in conflict with a
plan or an amendment to a plan
approved under section 208(b) of the
Act
(c) No permit shall be issued for any
aquaculture project located in the
territorial sea, the waters of die
contiguous zone, or the oceans, except
in conformity with guidelines issued
under section 403(c) of the Act
(d) Designated project areas shall not
include a portion of a body of water
large enough to expose a substantial
portion of the indigenous biota to the
conditions within the designated project
area. For example, the designated
project area shall not include the entire
width of a watercourse, since all
organisms indigenous tojhat
watercourse might be subjected to
discharges of pollutants that would,
except for the provisions of section 318
of the Act, violate section 301 of the Act
(e) Any modifications caused by the
construction or creation of a reef, barrier
or containment Structure shall not
unduly alter the tidal regimen of an
estuary or interfere with migrations of
unconfined aquatic species.
[Comment: Any modifications described In
this paragraph which result in the discharge
of dredged or fill material into navigable
waters may be subject to the permit
requirements of section 404 of the Act.]
(f) Any pollutants not required by or
beneficial to the aquaculture crop shall
not exceed applicable standards and
limitations when entering the designated
project area.
Subpart C—Criteria for Extending
Compliance Dates for Facilities
Installing Innovative Technology
Under Section 301(k) of the Act—
[Reserved]
Subpart D—Criteria and Standards for
Determining Fundamentally Different
Factors Under Sections 301(b)(1)(A),
301(bX2) (A) and (E), and 307(b) of the
Act
§ 125.30 Purpose and scope.
(a) This Subpart establishes the
criteria and standards to be used in
determining whether effluent limitations
or standards alternative to those
required by promulgated EPA effluent
limitations guidelines or standards
under sections 301,304, and 307(b) of the
Act {hereinafter referred to as "national
limits") should be imposed on a
discharger because factors relating to
thfe discharger's facilities, equipment.
processes or other factors related to the
discharger are fundamentally different
from the factors considered by EPA in
development of the national limits. This
Subpart applies to all national limits
promulgated under sections 301,304 and
307(b) of the Act except for those
contained in 40 CFR Part 423 (steam
electric generating point source
category).
(b) In establishing national limits, EPA
takes into account all the information it
can collect develop and solicit
regarding the factors listed in sections
304(b), 304(g) and 307(b) of the Act. In
some cases, however, data which could
affect these national limits as they apply
to a particular discharge may not be
available or may not be considered
during their development As a result it
may be necessary on a case-by-case
basis to adjust the national limits, and
make them either more or less stringent
as they apply to certain dischargers
within an industrial category or
subcategory. This will only be done if
data specific to that discharger indicates
it presents factors fundamentally
different from those considered by EPA
in developing the limit at issue. Any
interested person believing that factors
relating to a discharger's facilities,
equipment processes or other facilities
related to the discharger are
fundamentally different from the factors
considered during development of the
national limits may request a
fundamentally different factors variance
under 5 124.51(b)(l). In addition, such a
variance may be proposed by the
Director in the draft permit (see
§ 123.22(a)(2)fii)).
§125.31 Criteria.
(a) A request for the establishment of
effluent limitations under this Snbpart
(fundamentally different factors l
variance) shall be approved only if:
(1) There is an applicable national
limit which is applied in the permit and
specifically controls the pollutant for
which alternative effluent limitations'or
standards have been requested; and
(2) Factors relating to the discharge
controlled by the permit are -
fundamentally different from those
considered by EPA hi establishing the
national limits; and
• (3) The request for alternative effluent
limitations or standards is made in
accordance with the procedural
requirements of Part 124.
(b) A request for the establishment of
effluent limitations less stringent than
those required by national limits
guidelines shall be approved only if:
(1) The alternative effluent limitation
or standard requested is no less
stringent than justified by the
fundamental difference; and
(2) The alternative effluent limitation
or standard will ensure compliance with
sections 208(e) and 301(b)(l)(C) of the
Actrand ,
(3) Compliance with the national
limits (either by using the technologies
upon which the national limits are based
or by other control alternatives) would
result in:
(i) A removal cost wholly out of
proportion to the removal cost
considered during development of the
national limits; or
fli) A non-water quality
environmental impact (including energy
requirements) fundamentally more
adverse than the impact considered
during development of the national
limits.
[c) A request for alternative limits
more stringent than required by national
limits shall be approved only if:
(1) The alternative effluent limitation
or standard requested is no more
stringent than justified by the
fundamental difference; and
(2) Compliance with the alternative
effluent limitation or standard would not
result in:
(i) A removal cost wholly out of
proportion to the removal cost
considered during development of the
national limits; or
(ii) A non-water quality
environmental impact (including energy
requirements) fundamentally more
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-Federal Register /Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32951
adverse than the impact considered
during development of the national
limits.
(d) Factors which may be considered
fundamentally different are:
(1) The nature or quality of pollutants
contained in the raw waste load of the
applicant's process wastewaten
[Comment: (l)jln determining whether factors
concerning the discharger are fundamentally
different EPA!will consider, where relevant,
the applicable development document for the
national limits, associated technical and
economic data collected for use in developing
each respective national limit records of
legal proceedings, and written and printed
documentation including records of
communication, etc., relevant to the
development of respective national limits
which are kept on public file by EPA. (2)
Waste stream(s) associated with a
discharger's process wastewater which were
not considered in the development of the
national limits will not ordinarily be treated
as fundamentally different under paragraph
(a). Instead, national limits should be applied
to the other streams, and the unique stream(s)
should be subject to limitations based on
section 402(a)(l)'of the Act See § 125.2(c){2).]
(2) The volume of the discharger's
process wastewater and effluent
discharged;
(3) Non-water quality environmental
impact of control and treatment of the
discharger's raw waste load;
(4) Energy requirements of the
application of control and treatment
technology,
(5) Age, size, land availability, and
configuration as they relate to the
discharger's equipment or facilities:
processes employed; process changes;
and engineering aspects of the
application of control technology;
(6) Cost of compliance with required
control technololgy.
(e) A variance request or portion of
such a request under this section shall
not be granted on any of the following
grounds:
(I) The ^feasibility of installing the
required waste treatment equipment
within the time the Act allows.
[Comment- Under this section a variance
request may be approved if it is based on
factors which relate to the discharger's
ability ultimately to achieve national limits
but not if it is based on factors which merely
affect the discharger's ability to meet the
statutory deadlines of sections 301 and 307 of
the Act such as labor difficulties,
construction schedules, or unavailability of
equipment]
(2) The assertion that the national
limits cannot be achieved with the
appropriate waste treatment facilities
installed, if such assertion is not based
on factors) listed in paragraph (d) of
this section;
[Comment- Review of the Administrator's
action in promulgating national limits is
available only through the judicial review
procedures set forth in section 509(b) of the
Act]
(3) The discharger's ability to pay for
the required waste treatment; or
(4) The impact of a discharge on local
receiving .water quality.
(f) Nothing in this section shall be
construed to impair the right of any
State or locality under section 510 of the
Act to impose more stringent limitations
than those required by Federal law.
§ 125.32 Method of application.
(a) A written request for a variance
under this Subpart shall be submitted in
duplicate to the Director in accordance
with Part 124 Subpart F.
(b) The burden is on the person
requesting the variance to explain that:
(1) Factor(s) listed in § 125.31(b)
regarding the discharger's facility are
fundamentally different from the factors
EPA considered in establishing the
national limits. The requester should
refer to all relevant material and
information, such as the published
guideline regulations development
document, all associated technical and
economic data collected for use in
developing each national limit, all
records of legal proceedings, and all
written and printed documentation
including records of communication,
etc., relevant to the regulations which
are kept on public file by the EPA;
(2) The alternative limitations
requested are justified by the
fundamental difference alleged in
paragraph (b)(l) of this section; and
[3) The appropriate requirements of
§ 125.31 have been met. , • "
Subpart E—Criteria for Granting
Economic Variances from Best
Available Technology Economically
Achievable Under Section 301(c) of the
Act—[Reserved]
Subpart F—Criteria for Granting Water
Quality Related Variances Under
Section 301(g) of the Act—[Reserved]
Subpart G—Criteria for Modifying the
Secondary Treatment Requirement
Under Section 301(h) of the Act—
[Reserved]
Subpart H—Criteria for Determining •
Alternative Effluent Limitations Under
Section 316(a) of the Act
§ 125.70 Purpose and scope.
Section 316(a) of the-Act provides
that
"With respect to any point source
otherwise subject to the provisions of section
301 or section 306 of this Act whenever the
owner or operator of any such source, after
opportunity for public hearing, can
demonstrate to the satisfaction of the .
Administrator (or, if appropriate, the State)
that any effluent limitation proposed for the~
control of the thermal component of any
discharge from such source will require
effluent limitations more stringent than
necessary to assure the projection [sic] and
propagation of a balanced, indigenous
population of shellfish, fish and wildlife in
and on the body of water into which the
discharge is to be made, the Administrator
(or, if appropriate, the State) may impose an
effluent limitation under such sections on
such plant with respect to the thermal
component of such discharge (taking into
account the interaction of such thermal
component with other pollutants), that will
assure the protection and propagation of a
balanced indigenous population of shellfish.
fish and wildlife in and on that body of
water."
This Subpart describes the factors,
criteria and standards for the
establishment of alternative thermal
effluent limitations under section 316{a)
of the Act in permits issued under
section 402(a] of the Act.
§ 125.71 Definitions.
For the purpose of this Subpart:
(a) "Alternative effluent limitations"
means all effluent limitations or
standards of performance for the control
of the thermal component of any
discharge which are established under
section 316(a) and this Subpart.
(b) "Representative important
species" means species which are
representative, in terms of their
biological needs, of a balanced,
indigenous community of shellfish, fish
and wildlife in the body of water into
which a discharge of heat is made.
(c) The term "balanced, indigenous
community" is synonymous with the
term "balanced, indigenous population"
in the Act and means a biotic
community typically characterized by
diversity, the capacity to sustain itself
through cyclic seasonal changes,
presence of necessary food chain
species and by a lack of domination by
pollution tolerant species. Such a
community may include historically
non-native species introduced in
connection with a program of wildlife
management and species whose
presence or abundance results from
substantial, irreversible environmental
modifications. Normally, however, such
a community will not include species
whose presence or abundance is
attributable to the introduction of
pollutants that will be eliminated by
compliance by all sources with section
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32952 Federal Register / Vol. 44. No. I'll / Thursday. June 7. 1979 / Rules and Regulations
301 [b)(2) of the Act; and may not include
species whose presence or abundance is
attributable to alternative effluent
limitations imposed pursuant to section
316(a). -
§ 125.72 Early screening of applications
for section 316(a) variances.
(a) Any initial application for a
section 316(a) variance shall include the
following early screening information:
(1) A description of the alternative
effluent limitation requested;
[2] A general description of the
method by which the discharger
proposes to demonstrate that the
otherwise applicable thermal discharge
effluent limitations are more stringent
than necessary;
(3) A general description of the type of
data, studies, experiments and other
information which the discharger
intends to submit for the demonstration:
and
(4) Such data and information as may
be available to assist the Director in
.selecting the appropriate representative
important species.
(b) After submitting the early
screening information under paragraph
(a), the discharger shall consult with the
Director at the earliest practicable time
[but not later than 30 days after the
application is filed) to discuss the
discharger's early screening information.
Within 60 days after the application is
filed, the discharger shall submit for the
Director's approval a detailed plan of
study which the discharger will
undertake to support its section 316(a)
demonstration. The discharger shall
specify the nature and extent of the
following type of information to be
included in the plan of study: biological,
hydrographies! and meteorological data;
physical monitoring data; engineering or
diffusion models; laboratory studies;
representative important species; and
other relevant information. In selecting
representative important species, i
special consideration shall be given to
species mentioned in applicable water
quality standards. After the discharger
submits its detailed plan of study, the
Director shall either approve the plan or
specify any necessary revisions to the.
plan. The discharger shall provide any
additional information or studies which
the Director subsequently determines
.necessary to support the demonstration,
including such studies or inspections as
may be necessary to select
representative important species. The
discharger may provide any additional
information or studies which the
discharger feels are appropriate to
support the demonstration.
(c) Any application for the renewal of
a section 316(a] variance shall include
only such information described in
paragraphs (a) and (b) of this section
and 1124.73(c)(l) as the Director
requests within 60 days after receipt of
the permit application.
(d) The Director shall promptly notify
the Secretary of Commerce and the
Secretary of the Interior, and any
affected State of the filing of the. request
- and shall consider any timely
recommendations they submit
• (e) In making the demonstration the
discharger shall consider any
information or guidance published by
EPA to assist hi making such
demonstrations.
(f) If an applicant desires a ruling on a
section 316{a) application before the
ruling on any other necessary permit
terms and conditions, (as provided by
§ 124.57), it shall so request upon filing
its application under paragraph (a) of
this section. This request shall be
granted or denied in the discretion of the
Director.
[Comment At the expiration of the permit,
any discharger holding a section 316{a)
variance should be prepared to support the ,
continuation of the variance with studies
based on the discharger's actual operation
experience.] •
§125.73 Criteria and standards for the
determination of alternative effluent
limitations under section 316(3).
(a) Thermal discharge effluent
limitations or standards established in
permits may be less stringent than those
required by applicable standards and
limitations if the discharger
demonstrates to the satisfaction of the
olrector that such effluent limitations
are more stringent than necessary to
assure the protection and propagation of
a balanced, indigenous community of
shellfish, fish and wildlife in and on the
body of water into which the discharge
is made. This demonstration must show
that the alternative effluent limitation
desired by the discharger, considering
the cumulative impact of its thermal
discharge together with all other
significant impacts on the species
affected, will assure the protection and
propagation of a balanced indigenous
community of shellfish, fish and wildlife
in and on the body of water into which
the discharge is to be made.
(b) In determining whether or not the
protection and propagation of the
affected species will be assured, the
Director may consider any information
contained or referenced in any
applicable thermal water quality criteria
and thermal water quality information
published by the Administrator under
- section 304(a) of the Act or any other
information he deems relevant
(c)(l) Existing dischargers may base
their demonstration upon the absence of
prior appreciable harm in lieu of
predictive studies. Any such
demonstrations shall show:
(i) That no appreciable harm has
. resulted from the normal component of
the discharge (taking into account the
interaction of such thermal component
with other pollutants and the additive
effect of other thermal sources to a
balanced, indigenous community of
shellfish, fish and wildlife in and on the
body of water into which the discharge
has been made; or ;
(ii) That despite the occurrence of
such previous harm, the desired .
alternative effluent limitations (or
" appropriate modifications thereof] will
nevertheless assure the protection and
propagation of a balanced, indigenous
community of shellfish, fish and wildlife
in and on the body of water into which
the discharge is made.
(2) In determining whether or not prior
appreciable harm has occurred, the
Director shall consider the length of time
in which the applicant has been
discharging and the nature of the •
discharge.
Subpart I—Criteria Applicable to
Cooling Water Intake Structures Under
Section 316
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Federal Register / Vol. 44. No. Ill / .Thursday, June 7. 1979 / Rules and Regulations 32953
provided that completion of the facility
and attainment of operational level by
no later than July, 1,1983, is a
reasonable expectation.
§ 125.92 Requests for permit modification
and issuance under section 3C1(iX1) of the
Act. i :
Any owner or operator of a publicly •
owned treatment works (POTW) that
requires construction to achieve
limitations under sections 301(b)(l)(B) or
301(b](l)(C) of the Act may request -
modification or issuance of a permit
extending the date for compliance with
these limitations in accordance with the
provisions of § 124.51 (c).
§ 125.93 Criteria for permit modification
and Issuance under section 301(0(1) of the
Act
No request for a permit modification
or issuance under section 301(i)(l) shall
be granted unless the Director finds that
the POTW requires construction to
achieve limitations under sections
301(b){l}(B) or 301(b)(lHC) of the Act
and did not complete construction for
either of the following reasons:
(a) The issuance of a notice to
proceed under a construction contract
for any segment of Step 3 project work
(or if notice to proceed is not required,
the execution of the construction
^contract) occurred before July 1,1977,
but construction could not physically be
completed by July 1,1977, despite all
expeditious efforts of the POTW (see
initiation of construction as defined in
40 CFR § 35.905 for Step 3); or
(b) Federal financial assistance was
not available, or was not available in
time for construction required to achieve
these limitations, and the POTW did not
in any significant way contribute to this
unavailability or delay.
§ 125.94 Permit terms and, conditions
under section 301(0(1) of the Act
(a) All permits modified or issued by
the Director under section 301(i)(l) of
the Act shall contain at a minimum the
following permit terms and conditions:
(1) the shortest reasonable schedule of
compliance for achievement of
limitations under sections 301(b)(l) fB)
and (C) but in no event later than July 1,
1983. This schedule shall be based upon
the earliest date that Federal financial
assistance will be available and
construction can be completed and on
any additional information submitted by
the POTW or otherwise available.
(i) When a facility plan has been
approved in accordance with 40 CFR 35,
Subpart E. this schedule shall contain
dates certain for the completion of
actions leading toward the attainment of
statutory treatment limitations.
(ii) When the POTW has not
completed Step 1 of the construction
grants process in accordance with 40
CFR 35, Subpart E, this schedule shall
contain a date certain for the
submission of a facility plan (completion
of Step 1} upon which date the permit
should be set to expire. In this case, in
order to assure compliance by the
POTW by July 1,1983, the following
requirements must be met:
(A) Certification by the State, based
on its one or five year project priority
list developed pursuant to 40 CFR
35.915(c], that funding will be available
in time to ensure compliance by July 1,
1983; and
(B) Reporting once a year (if
necessary) by the POTW as to its
progress in obtaining Federal funding.
[Comment: EPA recognizes that the date for
submission of the facility plan may not take
into account all the uncertainties of the Step 1
planning process. Because of the
uncertainties inherent in the Step 1 planning
process. EPA recommends that section
301(i)(l) requests (and permit issuance) for
projects that are presently in Step 2 or 3
should be acted on before requests from
projects in Step 1. When Federal funding in
the form of a Step 2 construction grant award
is made available, and the Step 1 permit has
expired, the permit is to be reissued
containing a date certain schedule derived
from the facility plan and coordinated with
the State Project Priority List]
(2) A statement ensuring compliance
with requirements under sections 201 (b)
through (g) of the Act consistent with
the terms of the POTWs construction
grant
(3) Abatement practices and interim
effluent limitations reflecting optimum
operation and maintenance of the
existing facilities. These shall include:
(i) Adequate operator staffing and
training;
(ii) Adequate laboratory and process
controls; and
(iii) Effluent limitations derived from
reports of operation and maintenance
inspections conducted by EPA or the
State, or other guidance.
[Comment: Only in exceptional
circumstances should in-depth plant
evaluations he conducted, e.g., when existing
information does not represent the true
capabilities of the plant.)
(4) Interim effluent limitations
reflecting other non-capital intensive
measures for increased pollution
control. This shall include any possible
minor facility modifications such as
piping changes, additional metering and
instrumentation or the use of skimming
and vacuuming equipment. When an
existing POTW is currently violating
limitations imposed under section
301(b)(l)(C) of the Act, interim effluent
limitations shall be established to
minimize adverse water quality impact;
these limitations shall not be made less
stringent or allow more pollutants to be
discharged than are currently being
- discharged during the term of an
extension granted under section 301(i)(l)
of the Act.
(b) If a POTW has industrial users,
any permit issued or modified by the
Director under section 301(i)(l) shall
contain any terms and conditions
necessary to ensure compliance with 40
CFR 403.
§ 125.95 Requests for permit modification
or issuance under section 301(0(2) of the
Act
Any owner or operator of a point '
source other than a POTW that will not
achieve the requirements of sections
301(b)(l)(A) and 301(b)(l)(C) of the Act
because it was scheduled to discharge
into a POTW that is presently unable to
accept the discharge without
construction, may request modification
or issuance of a permit extending the
date of compliance with these
limitations in accordance with the
provisions of § 124.51(b).
§ 125.96 Criteria for permit modification
or issuance under section 301(i)(2) of the
Act
No request for a permit modification
or issuance under section 301(i)(2) of the
Act shall be granted unless the Director
finds that the discharger has failed to
achieve the requirements of sections
301(b)(l)(A) and 301(b)(l)(C) of the Act
because it was scheduled to discharge
into a POTW that is presently unable to
accept the discharge without
construction, and:
(a) The discharger has indicated an
intent to discharge into the POTW
before July 1,1977, in one of the
following ways:
(1) The discharger was issued a permit
before July 1,1977, based upon a
discharge into a POTW;
(2) The discharger had a binding
contractual obligation before July 1,
1977, (enforceable against the
discharger) to discharge into a POTW.
Contracts which can be terminated or
modified without substantial loss and
contracts for feasibility, engineering and
design studies do not constitute a
contractual obligation under this
paragraph.
(3) A construction grant application
made by the POTW before July 1,1977,
clearly demonstrated that the discharger
was to discharge into the POTW; or
(4) Engineering plans, architectural
plans or working drawings prepared for
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32954 Federal Register / VoL 44. No. Ill / Thursday, June 7, 1979 / Rules and Regulations
the POTW before July 1,1977, clearly
demonstrated the discharger was to
discharge into the POTW. Plans and
drawings, such as those accompanying a
bona fide application for a Federal
construction grant are sufficient only to
the extent that they were truly
representative of the intent of the
discharger and the POTW;
(b) The Director finds that the
discharger has acted in good faith in its
efforts to effectuate discharge into the
POTW and to minimize or abate
pollution prior to discharge into the
POTW. This shall include the following
findings:
(i) Failure of the discharger to meet
the July 1,1977, deadline was for
reasons beyond its control;
(ii) A history of a high degree of
commitment to meet the requirements of
the Act as manifested by cooperation
with the State or EPA in attempting to '
resolve disputed issues;
(in) No history of unjustified delay;
(iv) No past serious or intentional
violations of the Act; and
(v) All reasonable measures are being
taken to expedite compliance.
[Comment: The Director may also consider
whether the discharger has operated its
facilities competently and responsibly and
the exent to which the discharger has
completed the necessary prerequisites to
having its waste treated by the POTW.]
fc) The POTW will be in operation
and available to the discharger July 1,
1983;
(d) The POTW will be able to meet
secondary treatment and water quality
standard effluent limitations by July 1,
1983, after receiving the waste from the
discharger;
(e) The discharger and the POTW
have entered into an enforceable
contract providing that:
(i) The discharger agrees to discharge
its waste to the POTW;
(ii) The POTW agrees to accept and
treat that waste by a date certain; and •
(iii) The discharger agrees to pay all
user charges and industrial cost
recovery charges required under section
204 of the Act; and
(f) In the case of a discharge into an
existing POTW, such POTW has been
granted an extension under section
301(i)(l)oftheAct —
§ 125.97 Permit terms and conditions
under section 301(i)(2) of the Act
All permits modified or issued by the
Director under section 301(i)(2) of the
Act shall contain at a minimum the
following permit terms and conditions:
(a) The shortest reasonable schedule
of compliance leading to discharge into
the POTW, not to extend beyond the
earliest date practicable for compliance,
or beyond the final compliance date of
any extension granted to the appropriate
POTW under section 301(i)(l) of the Act
but in no event later than July 1,1983.
This schedule shall be based upon the
earliest date fay which the appropriate
POTW can receive the waste from the
discharger and the discharger can
complete the necessary prerequisites to
having its waste treated by that POTW.
(b) Achievement of effluent
limitations and standards under sections
301(b)(l)(A) and 301(b)(l)(C) of the Act
by the same final date in the schedule
established in paragraph (a) of this
section in the event that the permittee
. does not discharge its wastes to the
POTW by the date established under
paragraph (a) of this section.
(c) Abatement practices and interim
effluent limitations reflecting optimum
operation and maintenance of the
discharger's existing facilities. These
shall include:
(1) Effective performance of facility
design removals;
(2) Adequate operator staffing and
training; and
(3) Adequate laboratory and process
control.
(d) Interim effluent limitations
reflecting other non-capital intensive
measures for increased pollution
control.
(e) Requirements to meet applicable
toxic effluent standards and
prohibitions after they are promulgated
under section 307(a) of the Act .
(f) Requirements to ensure compliance
with:
(1) Pretreatment requirements
imposed by the POTW pursuant to any
extension granted to the POTW under
section 301(i)(l);
(2) Any State or local pretreatment
requirements; and
(3) Pretreatment standards as
promulgated under section 307(b) of the
Act
[Comment- The legislative history cites the
following example: "[Fjf an industry is
planning on participating in a municipal
system which will not be available until
January 1983, that industry would still have
to install and operate pretreatment facilities
within the time specified for compliance at
the time the applicable pretreatment standard
was promulgated and in no event later than
three years from the date of said
promulgation. Thus, if the pretreatment
regulations are promulgated March 1,1979,
and require compliance within two years,
that industry would be required to comply by
March 1,1981." KR. Rep. No. 95-830, 95th
Cong.. 1st Sess., 12712 (daily ed. Dec. 6,
1977J.J
(g) Any water conservation
requirements necessary to carry out the
provisions of the Act or imposed by the
POTW pursuant to the contract
executed between the discharger and
the POTW.
[Comment: The existence of such a contract
is a prerequisite to granting an extension -
under section 301(i)(2){B) of the Act and
§125.96(e).) _, ,
Subpart K—Criteria and Standards for
Best Management Practices
Authorized Under Section 304(e) of the
Act
§ 125.100 Purpose and scope.
This Subpart describes how best
management practices (BMPs) for
ancillary industrial activities under
section 304(e] of the Act shall be
reflected in permits, including best
management practices promulgated in
effluent limitations under section 304
and established on a case-by-case basis
in permits under section 402(a)(l) of the
Act. Best management practices
authorized by section 304(e) are
included in permits as requirements for
the purposes of sections 301,302,306,
307, or 403 of the Act as the case may
be.
§ 125.101 Definition.
"Manufacture" means to produce as
an intermediate or final product or by-
product :
§125.102 Applicability of best
management practices.
Dischargers who use, manufacture,
store, handle or discharge any pollutant
listed as toxic under section 307(a)(l) of
the Act or any pollutant listed as
hazardous under section 311 of the Act
are subject to the requirements of this
Subpart for all activities which may
result in significant amounts of those
pollutants reaching waters of the United
States. These activities are ancillary
manufacturing operations including:
materials storage areas; in-plant
transfer, process and material handling
areas; loading and unloading operations;
plant site runoff; and sludge and waste
disposal areas.
§ 125.103 Permit terms and conditions.
(a] Best management practices shall
be expressly incorporated into a permit
where required by an applicable EPA
promulgated effluent limitations
guideline under section 304(e);
(b) Best management practices may be
expressly incorporated into a permit on
a case-by-case basis where determined
necessary to carry out the provisions of
the Act under section 402(a)(l). In
issuing a permit containing BMP
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Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations 32955
requirements, the Director shall consider
the following factors:
(1) Toxicity of the pollutant(s);
(2) Quantity of the pollutant(s) used,
produced, or discharged;
(3) History of NPDES permit
violations; j
(4) History of significant leaks or
spills of toxic or hazardous pollutants;
(5) Potential for adverse impact on
public health (e.g., proximity to a public
water supply) or the environment (e-.g.,
proximity to a sport or commerical
fishery); and
(6) Any other factors determined to be
relevant to the control of toxic or
hazardous pollutants.
(c) Best management practices may be
established in permits under paragraph
(b) of this section alone or in
combination with those required under
paragraph (a) of this section.
(d) In addition to the requirements of
paragraphs (a) and (b) of this section,
dischargers covered under § 125.102
shall develop and implement a best
management practices program in
accordance with § 125.104 which
prevents, or minimizes the potential for,
the release of toxic or hazardous
pollutants from ancillary activities to
waters of the United States.
§ 125.104 Best management practices
programs.
(a) BMP programs shall be developed
in accordance with good engineering
practices and with the provisions of this
Subpart.
(b) The BMP program shall:
(1) Be documented in narrative form,
and shall include any necessary plot
plans, drawings or maps;
(2) Establish specific objectives for the
control of toxic and hazardous
pollutants.
(i) Each facility component or system
shall be examined for its potential for
causing a release of significant amounts
of toxic or hazardous pollutants to
waters of the United States due to
equipment failure, improper operation,
natural phenomena such as rain or
snowfall, etc.
(ii) Where experience indicates a
reasonable potential for equipment
failure (e.g., a tank overflow or leakage),
natural condition (e.g., precipitation), or
other circumstances to result in
significant amounts of toxic or
hazardous pollutants reaching surface
waters, the program should include a
prediction of the direction, rate of flow
and total quantity of toxic or hazardous
pollutants which could be discharged
from the facility as a result of each
condition or circumstance;
(3) Establish specific best
management practices to meet the
objectives identified under paragraph
(b)(2) of this section, addressing each
component or system capable of causing
a release of significant amounts of toxic
or hazardous pollutants to the waters of
the United States;
(4) The BMP program:
(i) May reflect requirements for Spill
Prevention Control and Countermeasure
(SPCC) plans under section 311 of the
Act and 40 CFR Part 151, and may
incorporate any part of such plans into
the BMP program by reference;
[Comment: EPA has proposed section
311(j)(l)(c) regulations (43 FR 39276) which
require facilities subject to NPDES to develop
and implement SPCC plans to prevent
discharges of reportable quantities of
designated hazardous substances. While
Subpart K requires only procedural activities
and minor construction, the proposed 40 CFR
151 (SPCC regulations) are more stringent
and comprehensive with respect to their
requirements for spill prevention. In
developing BMP programs in accordance with
Subpart K, owners or operators should also
consider the requirements of proposed 40
CFR 151 which may address many of the
same areas of the facility covered by this
Subpart.]
(ii) Shall assure the proper
management of solid and hazardous
waste in accordance with regulations
promulgated under the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976 (RCRA) (40 U.S.C. 6901 et
sag). Management practices required
under RCRA regulations shall be
expressly incorporated into the BMP
program; and
(iii) Shall address the following points
for the ancillary activities in § 125.102:
(A) Statement of Policy;
(B) Spill Control Committee;
(C) Material Inventory, *
(D) Material Compatibility;
(E) Employee Training:
(F) Reporting and Notification
Procedures;
(G) Visual Inspections;
(H) Preventive Maintenance;
(I) Housekeeping; and
(J) Security.
[Comment: Additional technical information
on BMPs and the elements of a BMP program
is contained in a publication entitled "NPDES
Best Management Practices Guidance
Document." Copies may be obtained by
written request to Edward A. Kramer (EN-
336), Office of Water Enforcement,
Environmental Protection Agency,
Washington, D.C. 20460.)
(c)(l) The BMP program must be
clearly described and submitted as part
of the permit application: An application
which does not contain a BMP program
shall be considered incomplete. Upon
receipt of the application, the Director
shall approve or modify the program in
accordance with the requirements of
this Subpart. The BMP program as
approved or modified shall be included
in the draft permit (§ 124.31). The BMP
program shall be subject to the
applicable permit issuance requirements
of Part 124, resulting in the incorporation
of the program (including any
modifications of the program resulting
from the permit issuance procedures)
into the final permit.
(2) Proposed modifications to the BMP
program which affect the discharger's
permit obligations shall be submitted to
the Director for approval. If the Director
approves the proposed BMP program
modification, the permit shall be
modified in accordance with § 122.31, ;
provided that the Director may waive
the requirements for public notice and
opportunity for hearing on such
modification if he or she determines that
the modification is not significant. The
BMP program, or modification thereof,
shall be fully implemented as soon as
possible but not later than one year after
permit issuance, modification, or
revocation and reissuance unless the
Director specifies a later date in the
permit.
[Comment: A later date may be specified in
the permit, for example, to enable
coordinated preparation of the BMP program
required under these regulations and the
SPCC plan required under 40 CFR 151 or to
allow for the completion of construction
projects related to the facility's BMP or SPCC
program.]
(d) The discharger shall maintain a
description of the BMP program at the
facility and shall make the description
available to the Director upon request. .
(e) The owner or operator of a facility
subject to this Subpart shall amend the
BMP program in accordance with the
provisions of this Subpart whenever
there is a change in facility design,
construction, operation, or maintenance
which materially affects the facility's
potential for discharge of significant
amounts of hazardous or toxic
pollutants into the waters of the United
States.
(f) If the BMP program proves to be
ineffective in achieving the general
objective of preventing the release of
significant amounts of toxic or
hazardous pollutants to those waters
and the specific objectives and
requirements under paragraph (b) of this
section, the permit and/or the BMP
program shall be subject to modification
to incorporate revised BMP
requirements.
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32956
Federal Register / Vol. 44, No. Ill / Thursday, June 7, 1979 / Rules and Regulations
Subpart L—Criteria and Standards for
Imposing Conditions for the Disposal
.of Sewage Sludge Under Section 405
of the Act [Reserved]
Subpart M—Ocean Dumping Criteria
Under Section 403 of the Act
[Reserved]
PART 402—COOLING WATER INTAKE
STRUCTURES [DELETED]
a 40 CFR Part 402 is deleted.
PART 403—GENERAL
PRETREATMENT REGULATIONS FOR
EXISTING AND NEW SOURCES OF
POLLUTION.
9.40 CFR Part 403 is amended as
follows:
A. The Table of Contents is amended
by revising the heading for | 403.11 to
read as follows:
§403.11 Approval procedures for POTW
pretreatment programs and revision of
categorical pretreatment standards.
*****
B. Section 403.7 is amended by
revising paragraph (e)(3) to read as
follows:
§403.7 [Amended]
* * * * *
(e) * * * (3) The Regional
Administrator may agree, in the
Memorandum of Agreement under 40
CFR 123.7, to waive the right to review
and object to Submissions for authority
to revise discharge limits under this
section. Such an agreement shall not
restrict the Regional Administrator's
right to comment upon or object to
permits issued to POTWs except to the
extent permitted under 40 CFR
C. Section 403.8 is amended by
revising the Erst sentence of paragraph
(f)(2)(vii) to read as follows:
§403.8 [Amended]
*****
(f) * * * (2) * * * (vii) Comply with the
public participation requirements of 40
CFR Part 25 in the enforcement of
National Pretreatment Standards.
§403.9 [Amended]
D. Section 403.9(d) is deleted and
§ § 403.9(e) and (f) are redesignated as
§§ 403.9(d) and (e), respectively.
§403.10 [Amended]
E Section 403.10(d)(l) is amended by,
deleting the words "set forth in
§ 403.10(b)" from the first and second
sentences.
F. Section 403.10 is amended by
revising paragraph (f)[l) to read as
follows:
* * -* * * -—
(f) * * * (1) Legal Authority. The
Attorney General's Statement submitted
in accordance with paragraph (g)(l)(i)
shall certify that the Director has
authority under State law to operate and
enforce the State pretreatment program
to the extent required by this Part and
by "40 CFR 123.32. At a minimum, the
Director shall have the authority to:
* * * * *
G. Section 403.10 is amended by
revising paragraph (g)(l) to read as
follows: -
* * * * - *
(g)(l)(i) A statement from the State
Attorney General (or the Attorney for
those State agencies which have
independent legal counsel) that the laws
of the State provide adequate authority
- to implement the requirements of this
Part. The authorities cited by the
Attorney General in this statement shall
be in the form of lawfully adopted State
statutes and regulations which shall be
in full force and effect before the time of
approval of the State pretreatment
program.
(ii) Copies of all State statutes and
regulations cited in the above statement.
* * * * *
H. Section 403.10 is amended by
revising paragraph (g){3) to read as
follows:
*****
(g)***
(3} Any modifications or additions to
the Memorandum of Agreement
(required by 40 CFR 123.7} which may be
necessary for EPA and the State to
implement the requirements of this Part.
*****
k Section 403.10 is amended by
revising paragraph (h)(2) to read as
follows:
• **'**-*
(h)***
(2) Commence the program revision
process set out in 40 CFR 123.61. For
purposes of that section all requests for
approval of State pretreatment programs
shall be deemed substantial program
modifications. A comment period of at
least 30 days and the opportunity for a
hearing shall be afforded the public on
all such proposed program revisions.
***-•**
J. Section 403.10(i) is amended by
substituting the words "this Part" for the
words "paragraph (g) of this section" in
both places they appear.
K. The heading of § 403.11 is revised
to read as follows:
§ 403. 1 1 Approval Procedures for POTW
Pretreatment Programs and Revision of
Categorical Pretreatment Standards. .'. - _
L. Section 403.11 is amended by
revising the first sentence to read as
follows:
"The following procedures shall be
followed in approving or denying
requests forPOTW Pretreatment
Program approval:" .
* * * * *
M. Section 403.11 is amended by
deleting all references to | 403.10(f) and
(g).
N. Section 403.11{a) is amended by
changing the reference hi two places
from "§ 403.9(e) and (f)" to "§ 403.9(d)
and (e)."
O. Section 403.11(b)[l)(i) is amended
by deleting from the first sentence the
words "shall be published in the Federal
Register in the case of a State
Submission and"
P. Section 403.11(b){l)(i)(A) is deleted
and subparagraphs (B) and (C) are
redesignated to (A) and (B) respectively.
Q. Section 403.11 is amended by
revising subparagraph (b)(l)(i)(B),
(formerly (b)(l)(i)(C)), to read as follows:
(D * * * •
(i) * * *
(B) Publication of a notice of request
for approval of the Submission in the
largest daily newspaper within the
jurisdiction(s) served by the POTW.
*****
R. Section 403.11 is amended by
substituting the words "30 days"
wherever the words "45 days" appear.
S. Section 403.11(b)(2}{ii) is amended
by deleting the words "a State or."
T. Section 403.11(e) is amended by
deleting the words "or Director."
[FR DOC..79-17271 Filed 6-0-79; »:45 «aij
BJUJNQ CODE 6S60-01-«
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United States Official Business
Environmental Protection Penalty for Private Use
Agency ^$300 EN-336
Washington DC 20460
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APPENDIX
DECISION-LOGICS
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APPENDIX
DECISION LOGIC
OVERVIEW
A decision logic has been developed for this manual to graphically
illustrate the entire NPDES permit process. It is presented in three
parts:
• Figure A-l NPDES Permit Process
• Figure A-2 Subpart H - Evidentiary Hearing Procedures
• Figure A-3 Subpart I - Nonadversary Procedures in
Initial Licensing
These diagrams afford a convenient guide to the many elements and
steps of the permit issuance and review process. Through reference to
instruction symbols, the user is directed to the appropriate hearing format
for the permit in question.
It is anticipated that this decision logic presentation will be use-
ful to EPA staff involved in the NPDES program, as a checklist to gauge
their own performance and as a ready reference to illustrate the NPDES
process to persons who are not as familiar with it.
A-l
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PAGE NOT
AVAILABLE
DIGITALLY
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PAGE NOT
AVAILABLE
DIGITALLY
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PAGE NOT
AVAILABLE
DIGITALLY
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PUBLIC NOT ICE
PER 124.4l||i OF
ISSUANCE Of
DRAFT PERMIT.
COMMENT PERIOD.
AND/OR PUBLIC
HEARING AND/OR
PANEL
HEARING
124113 '
FILEOW1TH-
REGIONAL
HEARING CLERK
124 120
NOTICE 1O RE
QUEST ERS AND
APPLICANT AND
PUBLIC NOTICE Ptl
124 4 111)
124. HS
MOTIONS FOR
LEAVE TO
PARTICIPATE
124.117tal
M'BMISStON OF
'\D0tTIONAt
MAT tBIAt BV
PARTIES
174.1201*1
ISSUANCE OF
TRANSCRIPT
RECORD Of
HEARING
124 87
REQUEST TO
CROSS-EXAMINE
WITNESSES
124 III
SUPPLEMENTARY
I24.I21IEI
RECORD OF
HEARING PER
124.87
*^___^S*^
PREPARATION OF
ADMINIKlHATtVt
RECORD FOR
FINAL PtRMII
IN CONSENT
HEARINGS
122 122H.I
PARITESMAY
FILE BRIEFS.
PROPOSED
FINDINGS.
CONCLUSIONS
AND PERMIT
MODIFICATIONS
»24.123
PREPARATION OF I
RECOMMENDED f
DECISION
124 124
FILING OF
RECOMMENDED
DECISION WITH
REGIONAL
HEARING
CLEHK
124.174
COPIES
SERVED ON
AND THE
ADMINISTRATOR
124.124
. ^— '
DAYS
NOTtCE OF
APPEAL ABO
REVIEW!
124.101, 124. lift
o
D
P
O
-INSTRUCTION
FIGURE 8-1. SUBPART 1-NONADVERSARY PROCEDURES FOR INITIAL LICENSING
Full size version in Appendix (page A-4)
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INDEX
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INDEX
Administrative record
for draft permits, 11-10, III-l, III-2, III-ll, II1-12, VI-2, VI-8, A-2
for final permits, III-2, VI-1 through VI-6, VI-8, A-2
Appeals to the Administrator, II-6, A-2
Application process, II-l through II-3, II-8 through 11-15, A-l, A-2
Applications, II-l through II-15
case-by-case determination, 11-10, 11-11
from new sources, II-8, II-9
Delegation of authority, IX-1, IX-4
Denial of permits, II-l, II-2, 11-11
Draft permits, II-l through II-3, II-5, II-9, 11-10, 11-12 through 11-14,
III-l through 111-12
Evidentiary hearing, II-4, II-5, II-6, 11-11, VII-1 through VII-29, IX-1,
IX-6, IX-11, A-l, A-3
Ex parte communications, IX-1, IX-2, IX-8, IX-9, IX-10
Final permits, II-l, II-3 through II-6, VI-1 through VI-8, A-2
Forms, see List of Forms, vii
General permits, IX-1, IX-6, IX-7
Grouping parties, IX-1, IX-2, IX-8
Information
for attorneys, 1-2 through 1-13, II-2, V-5 through V-10, VI-3, VI-4,
VII-1 through VII-29, VIII-1 through VIII-15, IX-5, IX-8
for permit writers, 1-2 through 1-13, II-2, II-3, III-l through 111-12,
IV-3, IV-4, V-2, V-5 through V-10, VI-3, VI-4, VII-1 through VII-29,
VIII-1 through VIII-15, IX-5, IX-6 through IX-13
public access to, IX-1, IX-3, IX-4
for regional hearing clerks and record clerks, 1-8 through 1-11, II-3,
IV-2, VI-3, VI-4, VII-1 through VII-29, VIII-1 through VIII-15, IX-5, IX-8
Interlocutory appeal, VII-1 through VII-4
Modification requests, II-9, 11-10, 11-14, V-l through V-10
appeals, V-4
applications, V-2, V-5 through V-10
effect on permit, V-3
procedures for various requests, V-5 through V-10
New sources, IX-1 through IX-13
applications from, II-8, II-9
Nonadversary hearings, II-4, II-5, VIII-1 through VIII-15, A-l, A-4
Prehearing conference, VII-1, VII-2, VII-7
Production or exchange of documents and data, IX-1, IX-8
-------
Public comment, II-l, II-3, IV-1, IV-3, IV-4, IV-9, IV-12
procedures, IV-1, IV-3, IV-4, IV-9, IV-12
reopening of comment period, IV-4
Public hearings, II-l, II-3, IV-1, IV-3 through IV-7
Public notice, II-l, II-3, IV-1 through IV-12
forms, see List of Forms, vii
methods for circulating notice, IV-2, IV-5 through IV-12
procedures, IV-1 through IV-12
Revocation and reissuance, II-9, 11-10
Service, IX-1, IX-2, IX-5
extension of time, IX-5
Settlements, IX-1, IX-5
State certification, II-l, II-2, 11-12, 11-13, 11-14
change in state law, 11-13
Statement of basis, III-l, III-2, III-3, III-4, VII-6
Stipulations, VII-2, VII-27, VII-28, IX-2
Termination of permits
requests, II-9, 11-10
procedures, II-9, 11-10, 11-11
Time limitations
EPA's failure to comply, IX-4
Variance, V-l through V-10
appeals, V-l, V-4
applications, V-l, V-2, V-5 through V-10
effect on permit, V—3
procedures for various requests, V-5 through V-10
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