Development and Review of State Program Applications


       Evaluation of State Legal Authorities

        (40 C.F.R. Parts 122 - 125 and 403)

                     VOLUME ONE
                   July 29,  1986

                  Office of  Water

   United States Environmental Protection Agency

                  Washington D.C.

     The NPDES State Program Guidance is the result of a two year
effort by the Office of Water to assemble-relevant EPA policy
and guidance memoranda, case law and model documents, along with
a clear and comprehensive discussion of federal NPDES requirements,
and to reproduce these materials in an accessible and convenient
format.  Given the fundamental and increasing importance of
NPDES State programs in the accomplishment of our mission under
the Clean Water Act, we are pleased to be able to provide State
agencies with this Guidance.  The EPA Office of Water plans to
update the Guidance as necessary by providing States and EPA
Regional Offices with additional pages (or where appropriate,
replacement pages) for inclusion in the looseleaf notebook.

     I believe this document will be of use to State and federal
personnel involved in the administration of programs to protect
one of our nation's most valuable resources, clean water.  In
addition, because it sets out federal requirements and policies
for the NPDES program, I believe this guidance will promote
understanding,  efficiency and consistency in the implementation
of the NPDES program while continuing to strengthen the State-
federal partnership.
ce J .
                               Lawrence J .  Jensen               Date
                               Assistanct Administator
                                  for Water
                               U.S. Environmental Protection


   Contents	.	.  Page

                           VOLUME I

 Introduction                                                  i
Chapter One - Synopsis of the Statutory and Regulatory
              Requirements of the NPDES Program

  A. Statutory Scheme                                         1-1
  B. Regulatory Scheme                                        1-3
  C. History of State NPDES Program Approvals                 1-7
  D. Oversight                                                1-8

Chapter Two - Procedures for State Program Approval,
              Modification, Review, and Withdrawal

  A. Approval of New State Programs                           2-1
  B. Program Modification Process                             2-10
  C. Legal Review of Existing Programs                        2-12
  D. Withdrawal of State Programs                             2-14

 Chapter Three - Statutory Authority and The Attorney
                 General Statement

  A. Background                                               3-1
  B. Statutory Requirements and the Attorney General's        3-5

     (1) NPDES Requirements                                   3-6
     (2) Pretreatment Requirements                            3-24
     (3) Authority Over Federal Facilities                    3-33
     (4) General Permit Requirements                          3-34

Chapter Four - Regulatory Authorities

  A. Background                                               4-1
  B. Required State Program Regulations                       4-4

     (1) NPDES                                                4-4
     (2) Pretreatment Regulations                             4-41
     (3) Federal Facilities                                   4-54
     (4) General Permits                 .                     4-55

                            - 2 -
CONTENTS	    '	        Page

Chapter Five - The Program Description and Memorandum
               of Agreement

  A. Background                                               5-1
  B. Purpose and Contents of the Program Description
     and MOA                                                  5-5

     1. NPDES Programs                                        5-6
     2. Pretreatment Programs                                 5-24
     3. Federal Facilities Authority                          5-33
     4. General Permits Program                               5-34

Chapter Six - EPA's State Program Oversight

  A. Background on Oversight Process                          6-1
  B. Statutory Basis for State Oversight                      6-5
  C. EPA and State Roles                                      6-7
  D. Identification and Resolution of State Program
     Deficiencies                                             6-10

                          Volume II

  Part I - Program Submission/Approval Documents - Models and

  Part II - Policies on State Program Approval and Review Procedures

  Part III - Policies on State Program Requirements

  Part IV - Policies on EPA Oversight of State Programs

  Part V - Policies on State Program Withdrawal Process

  Part VI - Policies on State Programs and Enforcement

  Part VII - Miscellaneous State Program Information

  Part VIII - Summary of Significant State Program Case Law

  Part IX - State Program Approval/Oversight Checklist

  Part X - Model NPDES Permit



     The National Pollutant Discharge Elimination System

(NPDES), established in 1972 under section 402 of the Federal

Water Pollution Control Act (FWPCA)(33 U.S.C. §1251 et seq.), is

now administered primarily by the States.  To date, 37 States

and Territories out of a possible 56 have received EPA approval

for NPDES programs.  Several of the remaining States are

developing program applications.  In addition, many of the

approved programs are only authorized to administer the

basic NPDES permitting program; under the 1977 Clean Water Act

Amendments, these States must request approval of program

modification to assume the pretreatment program and authority

to regulate federal facilities.  NPDES States also have the

option of seeking authority to issue general permits for

certain types of discharges.

     State program development activity is not limited to these

original program approvals.  Most of the approved States

began operating the NPDES program in the first three years

of its existence.  Since that time, federal law has undergone

substantial amendment and revision.  The NPDES regulations

require approved States to modify their programs to reflect

these changes.  Similarly, State law may have changed since

the original program approval through statutory or regulatory

amendments or judicial decisions interpreting applicable

requirements.  These State changes also must be formally
                            - i -

transmitted to EPA with a request for program modification.

To identify the need for legal revisions, and resolve any

existing or potential problems resulting from lack of up-to-

date authorities,  EPA has initiated a program to review all

existing State programs.

     The purpose of this guidance is to provide assistance

for persons preparing, reviewing, or evaluating State program

applications, requests for modifications, and to measure the

sufficiency of authorities for approved State programs.  The

NPDES regulations set out program requirements in some detail.

This guidance is intended to supplement and clarify these

regulations and policies and assist both State and EPA

personnel in preparing and reviewing a program submission.

     This guidance is a comprehensive delineation of the

statutory,  regulatory, programmatic, and resource requirements

which States are expected to meet.  It is intended to provide

States with a clear and concise discussion of the requirements

for a program submission and subsequent modifications.  It

is also expected that this guidance will aid EPA personnel

in evaluating State legal authorities and ensure consistency

in the level of scrutiny each program receives.
                           - 11 -

     The State Program Guidance is divided into two distinct

volumes.  Volume One is a narrative discussion of the required

legal authorities for State programs as well as the elements of

a State program submission.  It also discusses EPA's oversight

of approved State programs.  The first chapter of Volume One

is background, and provides a capsulated history of the

NPDES program, as related to State programs.  The second

chapter delineates the procedures to be followed for approval

and modification of State programs.  This Chapter also describes

the program withdrawal process and the procedures for legal

reviews of existing State programs.  Finally, it discusses

the criteria for determining whether a program modification

needs to be publicly noticed.

     Chapters Three, Four, and Five discuss the components

of a State program application, including statutes, regula-

tions, procedures (embodied in a program description), and

the Memorandum of Agreement (MOA) between the State and the

appropriate EPA Regional Administrator.  Each of these

Chapters is further subdivided into four subparts dealing

with the requirements for NPDES, pretreatment, federal

facilities, and general permits.  Finally, Chapter Six con-

tains a discussion of EPA's oversight of approved State


     While Volume One of the guidance explains EPA's

NPDES State Program requirements, Volume Two contains a

number of model program documents illustrating the contents

of approved programs and the approval process.  These include

                           - iii -

model Attorney General's Statements for NPDES and pretreatment

and a model MOA *that States can easily use in developing

their programs.  Also included are examples of documents

that EPA has approved in other States.  Volume Two also

includes other appendices addressing EPA policies and memo-

randa, pertinent case law, and opinions by EPA's Office of

General Counsel, relevant to State programs.  A final appendix

provides checklists to be used by both drafters and reviewers

as a practical tool for initially outlining, refining, and

evaluating a State's submission.

     This format should make it easy for users to find those

parts of the guidance that are relevant to their particular

needs.  Persons preparing or reviewing program modifications

need only look to those portions of the document which con-

cern the particular modification sought.  For example, a

State preparing a pretreatment program need only look to the

portion of each chapter dealing with pretreatment.  EPA expects

that by clearly setting out the federal requirements and

explaining the approval/modification processes, program

reviews will be improved through reduced complications and

increased awareness of expectations.

                         CHAPTER ONE

                       SYNOPSIS OF THE
                ;%  STATUTORY AND REGULATORY
A. Statutory Scheme

     Congress established the NPDES program when it enacted

the Federal Water Pollution Control Act (FWPCA) Amendments of

1972.  Section 402 of that Act requires EPA to administer a

national permit program to regulate discharges of pollutants

into the waters of the United States and sets out the basic

elements of that program.

     The Act also allows States to request authority to admin-

ister the program in lieu of EPA.  While the FWPCA does not

explicitly require a State to apply for NPDES approval, the

legislative history clearly reflects a Congressional intent

that States be primarily responsible for administering the

program.  Under Section 402(b), EPA must approve a State's

request to operate the permit program once it determines,

after an independent review of the submission, that the

State has adequate legal authorities, procedures, and the

ability to administer the program.  Section 402 also de-
lineates the requirements for a State program submission

and establishes the basic authorities which must be contained

in a State program.

      EPA is also directed by section 304(i) of the FWPCA to

adopt procedural and programmatic requirements for State NPDES

programs, including guidelines on monitoring, reporting,


                       SYNOPSIS OF THE
                    STATUTORY AND REGULATORY
   Contents	Page

A. Statutory Scheme                                      1-1

B. Regulatory Scheme                             .        1-3

   (1) Table of Recent NPDES Rulemakings                 1-5

   (2) Table of Recent Pretreatment Rulemakings          1-6

C. History of State NPDES Program Approvals              1-7

D. Oversight                                             1-8

enforcement, personnel, and funding; and to develop uniform

national forms for use by both EPA and approved States.  Mini-

mum State program requirements also include a prohibition

against interested persons serving on a State permitting

agency's board of directors or other body which approves all

or portions of NPDES permits.  Finally, at all times following

approval, State programs must be consistent with minimum federal

requirements, although they may always be more stringent.  If

a State program does not remain consistent, the Administrator

may, after hearing, withdraw program approval.*

     In 1977, the FWPCA was amended by the Clean Water Act

Amendments of 1977.  The resulting statute, codified at 33

U.S.C. §1251 et seq., is popularly known as the Clean Water

Act (CWA).  These amendments resulted in more comprehensive

regulation of pollutant discharges with increased emphasis on

the control of toxic pollutants.  The amendments also mandate

that States seeking NPDES authority must seek approval to

administer a State pretreatment program and demonstrate that

they have the authority under State law to regulate discharges

from federal facilities located within the State.

     In addition to imposing these requirements on new
States seeking NPDES authority, the 1977 Amendments required
*_/ Note that the 1972 Act contained no requirement for States to
develop pretreatment programs.  Also, State programs could not
regulate federal facilities within the State (See, EPA v. State
Water Resources Control Board, 426 U.S. 200 (1979) noted in
Appendix C).


 States already approved to administer the NPDES program to

 develop pretreatment programs  (see, section  54(c)(2) of the

 amendments).  Since the CWA specifically required federal

 facilities to comply with applicable State requirements, State

 programs were also required to obtain federal facilities

 authority as well [See, Memorandum on "State Regulation of

 Federal Facilities" (Policy No. N-78) reproduced in Appendix

 A].   (See also, 40 C.F.R. §123.62(a)(4), 44 Fed. Reg. 32854,

 June  7, 1979).  Although these requirements have been in

 effect for eight years, many States still have not modified

 their programs as required by the CWA.

 B. Regulatory Scheme

     Pursuant to its authority under section 304(i) of the

 statute,  EPA promulgated initial State program regulations

 in 1972 (40 CFR Part 12-4, 37 Fed. Reg.  28390, December 18,

 1972).  EPA has revised its NPDES program regulations several

times since then to clarify EPA policy, implement statutory

changes,  and reflect the outcome of legal challenges to the

regulations (such as court decisions and settlement agreements)

The most extensive of these revisions occurred in 1979 (44

Fed. Reg.  32854,  June 7, 1979) and 1980 (45 Fed. Reg. 33290,

May 19, 1980).

     The 1979 revisions to the NPDES regulations expanded

and clarified the regulations in response to the 1977 CWA

amendments.   Revisions included changes to the definition of

 "person"  so as to encompass federal facilities,  thus requiring

State programs to include authority to regulate these dis-

chargers.  Specific requirements relating to permit application

forms, reflecting the increased emphasis on toxic pollutants,

were also added.  The revised NPDES regulations also created

a class of permits known as general permits.  Under the

general permit program, one permit may be issued which regu-

lates similar dischargers in a defined geographic area with

the same effluent limitations.  By covering numerous discharg-

ers with one permit, the permitting authority can realize

savings in time and resources otherwise expended if individual

permits were issued to each discharger.  While States are not

required to seek general permi-t authority, as with other

aspects of the federal program, a State is not automatically

authorized to issue such permits, but must first request and

receive approval of a program modification.

     The 1980 revisions consolidated the permitting require-

ments of the NPDES program, the Hazardous Waste Management

program under the Resource Conservation and Recovery Act

(RCRA), the Underground Injection Control (UIC) program

under the Safe Drinking Water Act (SDWA), the State Dredge

or Fill (404) program under the CWA, and the Prevention of

Significant'Deterioration (PSD) program under the Clean Air

Act.  Consolidation was expected to streamline permitting

application and issuance procedures in cases where a permittee

would be subject to the requirements of more than one of the

above programs.

      In  addition  to  the consolidation, the  1980  revisions

added new provisions establishing minimum guidelines for public

participation  in  State enforcement activities,*  and expanded

the application and  reporting requirements  for toxic pollutants.

Finally, the consolidated regulations contained  more detailed

provisions regarding public notice and hearings.  To reflect

these .revisions,  EPA required that all State programs be modified

within two years  to  incorporate the changes.  To date, no State

has requested  program modification as required,  although several

States have made  the necessary revisions.   Since the Consolidat-

ed Permit Regulations, EPA has promulgated  several other revis-

ions, although most do not require extensive changes to approved


     On April  1,  1983, EPA promulgated new  "deconsolidated"

regulations for the NPDES program (48 Fed.  Reg.  14146).  While

this revision  changed the format of the NPDES regulations, it

offered no substantive changes in the federal requirements.

Table One indicates other recent changes to the NPDES


                          Table One

 Recent NPDES Revisions

   Date             Cite                         What

 9/1/83      48 Fed. Reg.  39611    "Common  Issues" Settlement
V This change came as a result of the holding in Citizens for
a Better Environment v. EPA, 596 F.2d 720 (7th Cir. 1979)
(See Appendix B).


                      Table One Continued
 6/25/84     49 Fed. Reg. 25978  '  Compliance extention for 301(k)
                                     innovative technology

 8/8/84      49 Fed. Reg. 31841    Delays submission of certain
                                     application data

 9/20/84     49 Fed. Reg. 37007    Causes for permit modification
                                   based on secondary treatment

 9/26/84     49 Fed. Reg. 37998    NPDES Settlement Agreement

 2/19/85     50 Fed. Reg. 6939     Corrections

 6/3/85      50 Fed. Reg. 23382    Secondary Treatment

 8/26/85     50 Fed. Reg. 34648    State program reporting

     Pursuant to the Clean Water Act Amendments of 1977,

EPA also promulgated general pretreatment regulations on

June 26, 1978 (43 Fed. Reg. 27736).  These rules regulate the

introduction of pollutants to publicly owned treatment

works (POTWs).  All new State NPDES program submissions must

include a pretreatment program.  Similarly, EPA's general

pretreatment regulations require existing State NPDES pro-

grams to be modified by March 27, 1980, to assume pretreat-

ment authority over indirect dischargers.  Table Two indicates

the revisions to the General Pretreatment Regulations since

their adoption.

                           Table Two          .   .

   Recent Pretreatment Revisions

     Date             Cite                      What

   1/28/81     46 Fed. Reg. 9404     Comprehensive revision

   2/10/84     49 Fed. Reg. 5131     Suspension of "new source,"
                                     "pass through" and "inter-
                                     ference" .definitions


                          Table Two Continued
   7/10/84     49 Fed. Reg. 28058    "New Source" redefined .

   8/3/84      49 Fed. Reg. 31212    Removal Credits

   9/25/85     50 Fed. Reg. 38809    Scope of FDF (PT) Variances

     The current NPDES and pretreatment regulations contain

the minimum criteria necessary for judging the sufficiency of

a proposed State program.  The regulations outline the elements

of a State program submission and describe the requirements

of activities such as permit issuance, compliance monitoring,

enforcement, legal authorities, resources and State agency

organization.  State NPDES programs must meet these minimum

requirements, although they may be more stringent.  These

regulatory requirements are discussed in detail in the

following chapters of this guidance.

C.  History of State NPDES Program Approvals

      The first State NPDES program to be approved was California,

on May 14,  1973.   By the end of 1975, EPA had approved 28 State

programs.  An additional two programs were approved by the end of

1977.   Thus, 30 State programs were approved before the 1977 CWA

amendments went into effect.  Of these 30 States, some have complied

with the CWA requirements and updated their legal authorities

although as of 1985, none had requested approvel of their

modifications as  required.  Most, but not all,  these States have

requested and received pretreatment and federal facilities

approval as required.  The first State to be approved for

pretreatment was Minnesota, on July 16, 1979, and the first

State to be approved for federal facilities authority was

California, on May 5, 1978.

     At present, EPA has approved 37 State NPDES programs.  Of

these, 22 have been approved to administer pretreatment programs

and 28 have been approved to regulate federal facilties.  In

addition, nine States have been authorized by EPA to issue

general permits.  (The approved NPDES States are listed in

Volume II.)

     The fact that so many programs were approved before the

1977 CWA amendments and the 1979 revisions to the regulations

has resulted in serious consistency problems.  Until now, EPA

has been unable to undertake a systemtic evaluation and review

of legal authorities in approved States.  Although the CWA and

the NPDES regulations require that States" update their legal

authorities to remain consistent with federal requirements, few

States have done so.  In addition, since EPA has not had the

resources to perform reviews of the approved States, the

complete scope of this problem is not known.  This problem is

discussed further under Oversight, below, and in Chapter VI.

D.  Oversight

     Upon EPA approval, the State takes over primary responsibility

for issuance of permits and administration of the NPDES program

in that State.  Day-to-day program operation is the State's

function.  The approved State must continue to comply with all

applicable requirements of the CWA and NPDES regulations.


     Once EPA approves a State program, EPA's involvement is

much more limited.  EPA continues to provide legal and tech-

nical assistance in permit issuance and program administration

and retains an active role in enforcement, although the State

has primary responsibility for these activities.  The Agency

also supports State programs through federal grant funding

under sections 106, 205(g) and 205(j) of the CWA.  Of course,

EPA continues to establish rules and develop effluent guide-

lines and pretreatment standards for direct and indirect dis-

chargers.  In large part, however, the federal role is to

oversee State programs.

     The CWA mandates an oversight function for EPA to ensure

that State programs are at all times in conformity with federal

requirements.  In the past, EPA has carried out its oversight

responsibilities largely through review of State-issued

permits, annual negotiations relating to federal funding and

State program performance, program audits and analysis of

State enforcement and monitoring activities.  However, EPA is

also responsible for ensuring that State programs continue to

meet the minimum criteria for legal authority and program

performance.   The Agency plans to direct an increased part of

its resources and efforts to oversee these important elements.

     Most of the State programs were approved at least eight

years ago.  However, not all of these programs have been

reviewed since their initial approval by EPA,  despite changes

in both EPA and State statutes and regulations.  As part of


EPA's program to meet its oversight obligations, the Agency

has developed a program for. the review of State statutory and

regulatory authorities to assure that approved States have

authority that satisfies the minimum federal requirements for

State programs.  These reviews will be carried out jointly by

EPA Regions and Headquarters.  Each review will be a compre-

hensive review of the State's statutory and regulatory authori-

ties.  States found to have inadequate authorities will be

notified and are expected to amend their legal authorities

promptly to conform with the federal requirements.  The pro-

cedures for State legal reviews are discussed in detail in

Chapter 2.

	Contents	Page

A.  Approval of New State Programs                        2-1

    (1) Background on Program Approval Process            2-1

    (2) Elements of State Program Submission              2-2

    (3) Initial Program Development Process               2-3

        (a) Review of EPA Regulations and Guidance
            on State Programs                             2-3

        (b) State's Self-Evaluation                       2-4

        (c) Meeting With EPA                              2-5

        (d) EPA Involvement in State Program Development  2-5

    (4) Program and Document Development Process          2-6

        (a) State Incorporation of EPA's Comments         2-6

        (b) State Transmits Draft Submission to EPA
            Regional Office                               2-6

        (c) EPA Review of Draft Submission                2-6

        (d) State Incorporation of EPA's Draft
            Submission Comments                           2-7

    (5) Formal Program Approval Process                   2-7

        (a) State Formal Submission                       2-7

        (b) EPA Review and Public Comment                 2-7

        (c) EPA's Decision                                2-9

        (d) Notice of the Approved Program                2-9

B.  Program Modification Process                          2-10

    (1) State Program Modification Submission             2-10

    (2) Substantial Modifications                         2-11

    (3) Son-Substantial Modifications                     2-12

	Contents ( con t)	Page

C.  Legal Review of Existing Programs                     2-12

    (1) State Self-Evaluation                             2-13

    (2) EPA Review of State Authorities                   2-13

    (3) State Revisions to Legal Authority and
        Resources                                         2-14

D.  Withdrawal  of State Programs                          2-14

    (1) Voluntary Withdrawal                    .          2-14

    (2) Involuntary Withdrawal                            2-15

       (a)   Criteria for Program Withdrawal               2-15

       (b)  Procedures for Program Withdrawal              2-16

A.  Approval of New State Programs

      (1)  Background on Program Approval Process

      A State's decision to seek approval to administer the

NPDES program triggers a process designed to ensure that the

State Agency or Agencies implementing the program have suffic-

ient  legal authority, procedures, and resources to properly

manage and operate the various aspects of the program.  The

contents of a State program submission are prescribed in 40

CFR Part 123, and are described in detail in the succeeding

chapters of this document.  Part A of this chapter addresses

the process by which a submission for a new State program

is assembled, and apprises the State of the steps EPA will

follow in evaluating the documents, including public involve-

ment,  prior to a decision on approval.  These procedures

also  apply to program modifications, such as the addition of

a new program component (See Part B of this Chapter).

    There are a number of phases and activities that must be
jointly undertaken by EPA and the State.  Each step is important

to the successful approval of the proposed program, although

they  may not always occur in the order outlined below.  Steps

may also be repeated when necessary to develop an adequate

program.   The final submission must assure that the program

will  be operated in full compliance with the CWA.

Approvals of State programs and revisions thereto are a joint

function of EPA Regional Offices and Headquarters (both the

Office of General Counsel and Office of Water Enforcement

and Permits).  Early and frequent involvement of all concerned

offices will ease program development, review, and approval.

      (2)  Elements of State Program Submission

     The contents of a State program submission are prescribed

in Section 402(b) of the CWA and 40 CFR Part 123.  A State

seeking approval of a new program must submit all of these

documents.  Generally, a State also must submit each of these

documents where it requests a program modification,  although

the information required for modifications is generally less

extensive.  For example, a State seeking approval of a federal

facility modification need only submit legal authority necessary

to demonstrate'their ability to regulate such facilities,

not the entire State NPDES regulations, unless other sections

may affect the State's authority.  Similarly, where a State

is requesting a program modification because of proposed

changes to the State/EPA Memorandum of Agreement, the State

needs to submit only that document,  although EPA could ask

for additional information.   The following documents are the

elements of a State program submission (see 40 CFR 123.21).

    (a) Governor's Letter;  A State program submission must
        include a request from the Governor of the State's
        program submission.   For program modification,  the
        request may be submitted by the State Director instead
        of the Governor.

    (b)  Attorney General's Statement;  The State must submit
        a statement from the Attorney General (or independent
        legal counsel where the State Agency has such a
        position)  certifying that adequate authority exists


         under State law to administer the program.  The State
         Attorney General must explain the basis for his
         certification of authority.  The contents of an
         Attorney General's Statement are explained in detail
         in Chapters 3 and 4, and a model Statement is included
         in Volume II.

      (c) Statutes and Regulations;  The State must submit
         copies of all statutes and regulations that form
         the basis for the State program, including all
         authorities cited by the Attorney General.  In
         addition, the State must submit any judicial decisions
         that may impact the adequacy of those authorities.
         Chapter 3 describes the required State -statutory
         authority; Chapter 4 outlines minimun State regulations.

      (d) Program Description;  The State must submit a
         description of the procedures the State will follow
         to implement the program.  This description must
         discuss organization, program and enforcement procedures,
         and State resources and funding.  In addition, the
         State must submit copies of all forms to be used in
         the program.  The contents of the Program Description
         are discussed in Chapter 5.

      (e) Memorandum of Agreement;  The State must submit
         a Memorandum of Agreement (MOA) between the State
         and EPA.  This document outlines the respective
         program responsibilities of EPA and the State.  The
         State must comply with all terms of the MOA.  The
         contents of the MOA are set out in .Chapter 5.

      (3) Initial Program Development Process

      (a) State Review of EPA Regulations and Guidance
         on State Programs

     A State, interested in receiving EPA approval to operate

the NPDES permit program in lieu of the federal program, should

begin its efforts to formulate a program submission by educating

itself on the program's purposes, scope, and requirements.  This

may be accomplished by examining EPA's NPDES and pretreatment

regulations, including the procedures for public involvement,

in 40 CFR Parts 122,  123, 124, 125 and 403.  In addition to

program requirements, States should look at related substantive


requirements that States must adopt, such as effluent limi-

tations guidelines in 40 CFR Chapter I, Subchapter N.  (These

substantive requirements are referenced in §123.25(a).)  The

State should also become familiar with the contents of this

State program guidance document.

     Current federal law and EPA regulations prohibit approval

of partial NPDES programs.  Therefore, the State must require

permits for all point source discharges of pollutants within

its jurisdictional boundaries, including federal facilities.

In addition, the State must operate and enforce a pretreat-

ment program according to the regulations in 40 CFR Part

40.3.  States are not required to request authority to issue

general permits.  However, if a State does not receive

approval of a general permits program, the State may not

issue such permits to satisfy the NPDES program requirements.

Any general permits issued by a State which has not been

approved by EPA to issue such permits are not considered to

be NPDES permits.

     (b)  State's Self-Evaluation

     Once the State acquaints itself with the breadth and
purposes of the NPDES program, the next step is a self-analysis

of its legal authority to administer such a program and an

estimation of the resources needed to run it effectively.

The State's legal analysis should examine statutes, regulations,

and judicial decisions to determine whether there is a need for

State statutory amendments or new regulations.  This review

must examine authorities in light of the State's plan to

administer the program.  The State should also begin plans

to obtain the resources necessary to administer the program.

      (c)  Meeting with EPA

     At this point, if it has not already done so, the State

should alert EPA of its intentions, and seek advice on sub-

mission development.  It is generally helpful to meet and

review the existing relevant State legal authorities, if

any, and anticipated program needs with the staff at EPA.

The Regional Office will inform EPA Headquarters of the

State's plans.  Whenever possible, meetings at this stage

should also include EPA Headquarters, in order to assure

that all EPA concerns are raised at an early stage with

adequate opportunity for discussion and State response.

     (d)  EPA Feedback on State Program Development

     Following this original consultation, EPA Headquarters

and the Regional Office will collaborate on a set of written

comments and suggestions appraising the State's legal author-

ities and identifying any issues and concerns which need to

be resolved through additional legislative or regulatory

actions.  This review should describe all changes to legal

authority necessary to meet Federal requirements.  While

these comments should identify ail necessary changes, it

is possible that changes in the State's intended procedures

will require different legal authorities from those reviewed,

thus leading to additional EPA comments.  For example, EPA's

review of a statute may reveal adequate authority to administer

the pretreatment program based on a State-run permit program.

 If  the  State  later  indicates that  it does not plan to issue

 permits to all indirect, dischargers, EPA must re-examine the

 statute and may have new comments.

 (4)  Program  and Document Development Process

     (a)  State Incorporation of EPA Comments

     After receiving EPA's comments on the State's statutes

 and regulations, the State should begin to revise its authorities

 to reflect these comments.  If necessary to resolve issues,

 all parties may meet to discuss the needed State revisions.

 Since legislative enactments are the common source of delay in

 the approval process, these changes should be pursued quickly.

 If the State can address most of. EPA's comments at this early

 juncture,  the remainder of the processes, especially EPA reviews,

are far more likely to proceed expeditiously.   The State should

also begin preparing the other documents required for the

program submission.

     (b) State Transmits Draft Submission to EPA Regional Office

     Once EPA recommendations have been incorporated, the

State will assemble a complete draft program submission.  The

components of this submission are discussed above in part A(2)

of this Chapter (pg. 2-2).  Once assembled,  the draft submission

is to be forwarded to the appropriate EPA Regional Office for

detailed review and comment.

     (c)  EPA Review of Draft Submission

     The EPA Regional Office will provide EPA Headquarters,  which

must concur in the decision to approve a State program, with

copies of the State's draft submission.  EPA will then carefully

review the State's application to determine whether it is

consistent with the CWA and to ensure that EPA's approval of

the program, as proposed by the State, will not be susceptible

to legal challenge.  EPA Headquarters and the Regional Office

will coordinate their findings and provide the State with

written comments on each draft submitted.  (It is possible

that EPA will request and/or that the State will choose to

submit several drafts in order to avoid delays in action on

the formal submission or a decision that the formal .submission

is not complete.)

     (d)  State Incorporation of EPA's Draft Submission Comments

     Upon receipt of EPA's comments on the State's draft program

submission, the State will revise its documents as necessary

to incorporate, or otherwise resolve, EPA's comments.  If

this is not done, the program submission cannot be approved.

(5)  Formal Program Approval Process

     (a)  State's Formal Submission

     Once all components of the draft submission are revised

as necessary to address EPA comments, the Governor will

formally transmit the final submission to the EPA Regional

Administrator, as provided by 40 CFR 123.21.   The State must

submit three (3) copies.  Assuming that all earlier activity


has been well coordinated between the State, the Region,

and EPA Headquarters, the remainder of the process should

proceed rapidly.  However, if all necessary changes have not

been made or if draft materials were not submitted to EPA

for preliminary review, delays are likely.

     (b)  Final EPA Review and Public Comment
     The procedures for reviewing a State's formal program

submission are set out in 40 CFR 123.61.  First, within

thirty (30) days of receipt of the package, the Regional

Administrator makes a determination of whether the submission

is complete.  This completeness determination may only be

made with the concurrence of the Director of the Office of

Water Enforcement and Permits and the Associate General

Counsel for Water.  In determining whether the program sub-

mission is complete, EPA will look beyond whether each docu-

ment is present, and will also examine whether the State has

addressed all minimum requirements for a State program.  A

State program submission will not be considered complete

if the legal authority does not meet minimum requirements or

if significant changes are need to other portions of the

submission.  If the submission is complete, EPA has ninety

(90) days to approve or deny the request for State program

approval,  although this period can be extended if the State

agrees.  If the submission is incomplete, the 90-day clock

will not commence until EPA receives the additional materials,

     Once a completeness determination is made, EPA will

publish notice of the submission in the Federal Register and

in enough of the largest newspapers in the State to attract

State-wide attention.  In addition, the notice must be mailed

to all interested persons and- government agencies.  The hearing

must provide a comment period of at least forty-five (45) days

and indicate that a public hearing will be held within the

State.  The meeting must be held no less than thirty (30) days

after being noticed in the Federal Register.*  The notice must

also indicate where and when the State's submission will be

accessible to the public and indicate the cost of obtaining a

copy.   The notice shall also delineate the fundamental aspects

of the State's proposed program.  Finally, the notice must

indicate whom an interested member of the public may contact

for additional information.

     (c)  EPA's Decision

     Following the public comment period, EPA will complete

its final review of the submission, considering all public

comments on the proposed program.  The Regional Administrator,

with Headquarters'  concurrence by the Director of the Office

of Water Enforcement and Permits and the Associate General

Counsel for Water,  then makes a determination on whether to

approve the program.

     (d)  Notice of an Approved Program

     If EPA approves the program, the Governor will be so

notified and a public notice (including a summary of responses
^_l The notice designating the time and place for the hearing
mey be included in the notice proposing approval.

 to  significant public comments) will be published  in the

 Federal Register as well as mailed to all interested parties.

 The public notice must also explain the basis  for  EPA's decision,

 Following public notice, EPA generally turns its files over

 to  the State Agency or Agencies'which will be  implementing

 the program and ends its permitting activities in  the State.

 Note, however, that through the MOA, EPA and the State may

 agree that EPA will retain responsibility for  certain permits

 in  limited circumstances (such as where EPA has ongoing enforce-

 ment actions).  This approach may not be used  to authorize a

 partial program that would otherwise be prohibited by the


     In the event the program is not approved, EPA will notify

 the State and indicate the reasons for disapproval, and the

 revisions necessary for subsequent approval.

 B.  Program Modification Process

     (1)   State Program Modification Submission

     Revisions to State programs may be necessary any time the

 State or federal programs change,  such as the  addition of a

new program component (i.e.,  pretreatment,  federal facilities

or general permits), adoption of new or amended Federal laws

 (requiring changes to State laws), other changes to State

 laws,  transfer of the program administration from one State

Agency to another,  and the adoption of revised State forms.

Under federal rules, States must request a modification to

their approved program in these cases prior to EPA review

and approval.  Unless the CWA or EPA regulations specify a

deadline for modifications to assure consistency with new or

revised federal requirements, such modifications are expected

to be made by approved States within a reasonable time.  Pro-

gram modification is often necessary to avoid inconsistencies

between the State program and the CWA, and to assure the con-

tinuing validity of EPA's approval of the State program.

Either EPA or the State may initiate the procedures for

program modification.

     The procedures for program modification are very similar

to the original program approval process (See Part A of this

chapter):  States and EPA should follow those procedures,

although some steps may be changed or omitted.  There is

one significant difference in process:  for program reviews,

the 30-day period for making completeness determination and

the 90-day review period clock do not apply.  There are no

time limits for these actions in program revisions.

     As with program approvals, early EPA involvement will

facilitate action on program modification and eliminate delays

Program modifications may require the submission of a supple-

mental program description, MOA, Attorney General's Statement

and copies of all legal authorities, where appropriate.  EPA

will determine the documentation necessary for each program

modification (where the modification is to add a new program

component, the State must submit all of these documents,

although only in modified form).

      (2)  Substantial Modifications

      Program modifications may be considered either substantial

or non-substantial.  If EPA determines the proposed modification

is substantial, the NPDES regulations require that the modifi-

cation be subjected to public notice and comment prior to EPA

approval.  For example, adding a pretreatment program is always

considered a substantial modification (See, 40 CFR 403.10(h)).

The Regional Administrator, with the concurrence of EPA Head-

quarters, will determine whether any other proposed modification

is substantial by considering its scope,  programmatic impact,

and potential to arouse public interest or concern.

      Public notices for substantial modifications must provide

at least a thirty (30) day comment period, summarize the pro-

posed revision and provide opportunity for the public to

request a hearing.  (Such hearings will be held where signifi-

cant public interest is demonstrated.)

     After consideration of the public comments and the require-

ments of the CWA,  the Regional Administrator, with the concur-

rence of EPA Headquarters, will determine whether to approve

or deny the modification.  The modification does not become

effective as a matter of federal law until approved by EPA.

Approvals of substantial modifications will be publicly noticed

in the Federal Register (as described above).

      (3)  Non-substantial Modifications

      If the Regional Administrator, with concurrence of EPA

Headquarters, determines that-the proposed modification is not

substantial, the Regional Administrator may approve or deny

the revision, without public comment, by notice of his or her

decision in a letter to the Governor or his designee (Program

Director).  Review of minor modifications should also be

coordinated with EPA Headquarters.  Minor changes in forms,

procedures, and regulations will generally be considered non-

substantial modifications.  Proposed non-substantial modifi-

cations do not need to be subject to prior public notice

in the Federal Register.  Generally, final approval of non-

substantial modifications need not be published either.

However, any modification, substantial or not, which adds a

component (e.g., federal facilities or general permit

authority) to any State program will be published in the

Federal Register.

C.  Legal Review of Existing Programs

     EPA has initiated a program to review the legal authorities

for all approved State NPDES programs.  It is expected that

these reviews will need to be done periodically,  perhaps every -^

few years, depending on the degree to which federal and/or

State law and program requirements change.  These reviews

are a joint Headquarters/Regional effort; Headquarters must

concur in any determination of State program consistency or

inconsistency with federal law.  EPA will review the statutes

and regulations in each State to determine whether they are


 consistent with  federal  requirements.  The  required  legal

 authorities are  described  in  Chapters  3 and  4.  The  mechanisms

 for  identifying  'and resolving deficiencies  are  set out in

 Chapter  6.  This part outlines the review process.   While

 reviews  will  focus on legal authorities, States and  EPA will

 also review resources to determine whether they remain adequate

     (1) State self-evaluation

     The first step in any legal review should be a  State

 self-evaluation.  The State should review statutes and regu-

 lations  for consistency with  federal requirements just as

 would be done for program approvals.  The States should

 submit their conclusions on the legal analysis to EPA.  In

 some cases, EPA  may proceed directly to the next stage, in

 which case this  step may be omitted.

     (2)  EPA Review of State  Authorities

     EPA will independently evaluate State legal authorities

 to determine consistency with federal requirements.  The

 scope of this review will be  the same as described for State

 self-evaluation,  including State resources.  The standard of

 review is the same as for approval of new programs;  States

are expected to have authorities that meet all federal

 requirements.   Where the State has conducted its own self-

evaluation, EPA will carefully consider the State's  conclusions

 in formulating its comments.   The review of State programs

is a joint Regional/Headquarters activity; both offices must

coordinate in preparing comments.  EPA will then submit

comments  on the State's authority identifying needed revisions.


     (3)  State Revisions to Legal Authority and Resources

     Once the State has received comments from the Region and

Headquarters, the State will revise its statutes and

regulations as necessary to address EPA's concerns.  The

State will then submit a request for program modification

approval based upon these changes.  In many cases, the State

will also need to submit a revised Attorney General's statement

addressing the modified authorities.  EPA will act on this

submission as described in Part B of this Chapter.

D.  Withdrawal of State Programs

     (1)  Voluntary Withdrawal

     According to 40 CFR 123.64(a), a State may, at"any

time, voluntarily transfer program responsibilities back to

EPA by giving the Regional Administrator 180 days notice, and

providing a plan for the orderly transfer of relevant program

information necessary for EPA to administer the program.  At

least thirty (30) days in advance, the Regional Administrator

must publish public notice of the transfer in the Federal

Register and in enough of the largest newspapers of the State

to provide statewide coverage, and mail notice to all permittees

and other interested persons.  A State may not return part of

the NPDES program and retain other portions.  If the program

is transfered to EPA, the State must return the entire program.

     (2)  Involuntary Withdrawal

     At all times after program approval, State programs

must be consistent with the CWA and federal rules and must be

administered accordingly.  Section 402(c)(3) of the CWA and

EPA regulations  (40 CFR 123.64(b)) allow the Agency to with-

draw  its approval of a State program which no longer complies

with  the requirements of the CWA and regulations thereunder.

Program withdrawal is considered an extreme remedy but will

be invoked in those cases where the State is unable or fails

to take required corrective action to solve State program

deficiencies.  EPA will exercise great care to assure that

the State is fully apprised of any program deficiency de-

terminations by EPA at the earliest possible time and that

a plan for corrective action on a reasonable schedule is

developed.  In some cases, EPA may decide to call for a

public meeting to review EPA's concerns with a specific

State program.  EPA may not withdraw a part of the State

program,  leaving the State with partial authority.  Any

withdrawal applies to the entire approved program.

     The Administrator may order the commencement of

withdrawal proceedings on his own initiative or in response

to a petition by an interested person alleging that the

State has failed to comply with the requirements of the CWA

or EPA regulations.  Upon receipt of such a petition, the

Administrator may undertake an initial, informal investigation

to determine whether the State program is being administered

in accordance with federal requirements.  The Administrator

may then either grant the petition and initiate the "with-

drawal process described below, or deny the petition.

      (a)  Criteria for Program Withdrawal

      Grounds for initiating State program withdrawal proceedings

are  set out in 40 CFR 123.63, and include the following:

   (1) The State's legal authorities no longer meet CWA require-
      ments ;

   (2) The operation of the State program fails to comply with
      EPA regulations;

   (3) The State's enforcement program fails to comply with EPA
      regulations; or

   (4) The State program fails to comply with the terms of the
      Memorandum of Agreement.

      (b) Procedures for Program Withdrawal

      If the Administrator finds cause to commence withdrawal

proceedings, he or she will issue an order designating the time

and place for an adjudicatory hearing to be held.  The order

must  also contain the issues to be considered at the hearing.

The State has thirty (30) days to admit or deny the allega-

tions.  All parties may be represented by counsel and the

party seeking withdrawal has the burden of coming forward

with  evidence of the allegations.  Once the Presiding Officer

has evaluated the record, he/she shall make a recommendation

to the Administrator.  Parties may file exceptions to this     """

recommended decision.  The Administrator must issue his/her

decision within sixty (60) days of receiving the Presiding

Officer's recommendation.

      If the State Program is found to be deficient, the

Administrator must provide up to ninety (90) days for the

State to take corrective action.  If this action is not

withdraw approval is a final agency action for purposes  of

judicial review.

     A more detailed description of the withdrawal procedures

may be found in 40 CFR 123.64(b)(3);  also see Procedures

for the Withdrawal of State NPDES Program Approval,  General

Counsel Opinion No.  78-7,  April 18, 1978 in Volume II.

                    STATUTORY AUTHORITY AND
   Contents	Page

A. Background on the Statutory and Regulatory Requirements
   of the NPDES Permit Program                                 .3-1

B. State Statutory Authority and the Contents of the
   Attorney General's Statement3-5

   (1)  NPDES Requirements

       (a)  Authority to issue permits                          3-6

       (b)  Authority to deny permits in certain cases          3-9

       (c)  Authority to apply federal standards and
           requirements to direct dischargers                  3-10

       (d)  Authority to limit permit duration                  3-15

       (e)  Authority for entry, inspection, and sampling; and
           applying monitoring, recording, and reporting
           requirements (direct dischargers)                   3-16

       (f)  Authority to require notice of introduction of
           pollutants into publicly owned treatment works      3-16

       (g)  Authority to issue notices, transmit data and
           provide opportunity for public involvement          3-17

       (h)  Authority to provide public access to information   3-18

       (i)  Authority to modify or terminate permits            3-19
       (j)  Authority to enforce permit conditions and the
           requirements of the permit program                  3-19

       (k)  Conflict of Interest: State Agency memberships      3-23

       (1)  Incorporation by reference                          3-24

   (2)  Pretreatment Requirements

       (a)   Authority to apply federal pretreatment
            requirements to industrial users                   3-24

   Contents	.	Page

    (b)  Authority to impose federal pretreatment
          requirements in the NPDES permits of publicly
          owned treatment works                                3-26

    (c) Authority to require notice of introduction of
         pollutants into publicly owned treatment works        3-27

    (d) Authority to make determinations on requests for
         local pretreatment program approval and
         removal allowances                                    3-27

    (e) Authority to make initial determinations on
         categorization of industrial users, and requests for
         fundamentally different factors variances             3-28

    (f) Authority to apply recording, reporting, and
         monitoring requirements to industrial users           3-29

    (g) Authority to apply entry, inspection,  and sampling
         requirements                                          3-30

    (h) Authority to issue notices, transmit data, provide
         opportunity for public involvement, and public access
         to information                                        3-30

    (i) Authority to bring enforcement actions for violations
         of pretreatment standards and requirements by
         industrial users                                      3-31

    (j) Incorporation by reference                             3-33

(3)  Authority Over Federal Facilities                          3-33

(4)  General Permit Authority
    (a) Authority to issue and enforce general permits         3-34

    (b) Incorporation by reference                             3-34

attorney in State agencies having benefit of independent

legal counsel certify that in his or her opinion, the laws of

the State provide adequate authority to carry out the program.

(EPA regulations describe the specific content of these state-

ments in 40 CFR 123.23.)  This Attorney General's Statement

must include a discussion of the State's legal basis for con-

ducting each aspect of the program and address any significant

differences between State and federal law._^/  The Attorney

General's statement must cite to the specific statutory and

regulatory provisions that provide.the legal authority for each

program element.  However, citations alone are not adequate?

the Attorney General must explain how each citation provides

the requisite authority.  These explanations need not be exten-

sive where the provisions are clear on their face.  Where

appropriate to clarify authority, the AG should also cite to

judicial decisions and other interpretations of State authority

     Whenever State regulations are cited, the underlying

statutory authority for the regulation should also be cited.

If administrative regulations are based upon a broad statutory

provision, such as the "power to implement a pretreatment

program," then the Attorney General must explain that such

regulations do not violate any applicable doctrines under State

law (e.g., the delegation of legislative authority to State

administrative agencies).
^/ In order to resolve any significant differences between
State and federal law, the Attorney General must identify those
federal requirements which have no corresponding provisions in
State law as early in the program development process as possible,


A.  Background on the Statutory and Regulatory Requirements
    of the NPDES Permit Program

     Section 402(b) of the CWA requires a State seeking EPA

approval for NPDES authority to submit copies of all State

statutes and regulations which will form the legal foundation

for its permit program.  EPA must review and evaluate the

adequacy of these legal authorities to ensure their consistency

with the Act and the NPDES and pretreatment regulations set out

at 40 CFR Parts 122-125 and 403.  The following sections of the

Act are directly applicable to State programs: 304(i), 308(c),

309(c) and (d), 316(a), 318(c), 402(b), (d), (g), (h). and (j),

403(a) and 405(c).

     States must have adequate statutory and regulatory authority

to administer the NPDES program.  The State must have authority

at least as stringent as the federal requirements

cited at 40 CFR 123.25 (including the pretreatment program).

States can have additional authorities providing that they are

not less stringent than those required by the federal program.

State law can be more stringent, but States cannot use more

stringent provisions to "trade off" for provisions that are less

stringent than federal requirements.  All State statutes and

regulations must be in full force and effect by the time the

program is approved.  Of course a State seeking a modification

to its program must have adequate legal authority to  implement

the modification.

     Where a State is requesting program approval, Section 402(b)

also requires that the Attorney General, (AG) or the chief


     There is no explicit requirement that a single State Agency

have authority to operate the entire program.  Although central-

ization of NPDES program functions is generally preferable, the

CWA allows program functions to "be managed by more than one
State agency.  However, if management of the program is shared,

it cannot result in a gap in the State's total authority.  The

agencies, taken together, must have full authority to administer

the program.  In addition, each agency must have all necessary

legal authority to control those discharges within its jurisdic-

tion.  The Attorney General should indicate which State agency

will be responsible for performing each program task and how

the several agencies will coordinate their activities ._£/

     Before developing the statement, it is suggested that the

AG's office carefully review drafts of the program descrip-

tion so that the statement will address the activities which

the State intends to undertake.  In many instances, the adequacy

of the legal authority will depend upon the approach the State

agency intends to adopt.  For example, a State may have adequate

authority to regulate industrial users through State-issued

permits, but the State agency has elected to administer the
pretreatment program through POTWs (like the federal program).

In this case, the AG must interpret the State's pretreatment
£_/ States contemplating this type of bifurcated management
should take particular note of the conflict of interest pro-
visions contained in section 304(i)(2)(D) of the Act (see,
subsection B(l)(j), infra).  Each agency having or sharing
authority to issue, or in some way act upon permits, must
satisfy the conflict of interest provisions.


authority in view of the program the State plans to administer.

    The Attorney General's statement must be signed by the

Attorney General or a representative of the AG who is authorized

to sign and can bind the State by so doing.  Alternatively, the

Statement may be signed by an independent legal counsel.

To qualify as independent legal counsel, the signatory must

have full authority to represent the State agency in Court on

all matters, including defending actions against the State and

bringing actions to enforce against program violations.

    A State must also submit an Attorney General's statement

if it proposes to modify its program to add a new program

component (i.e., pretreatment, federal facilities, or

general permits).  In these cases, the AG statement need only

address authority for the component being sought, unless

broader discussion is appropriate to explain the authority fully,

An AG's statement may often be necessary at other times the

State requests program modification, such as when the State

amends or revises its statutory or regulatory authorities.

In addition, EPA may require a supplemental Attorney General's

statement to be prepared whenever it has reason to believe

that circumstances surrounding a State program have changed

(see,  40 CFR 123.63).  For example, if State judicial decisions

raise questions about the adequacy of State authorities, EPA

can request a supplemental AG Statement to resolve ambiguities.

     When the program approval or modification request is

submitted,  the Regional Administrator,  in conjunction with

the Director of the Office of Water Enforcement and Permits,

and the. Associate General Counsel for Water, must make an

independent determination as- to the adequacy of State legal

authorities.  (Section 402(b) of the Act provides, in part,

that "...[EPA] shall approve each such submitted program unless

[it] determines that adequate authority does not exist..." to

perform certain functions set forth in section 402(b).)  The

State Attorney General's certifications cannot be deemed to be

absolutely dispositive of the sufficiency of a State's legal

authority.  However, EPA will give the Attorney General's

statement the greatest possible weight when the adequacy of

the State's program and legal authorities is assessed. .Where

the plain wording of statutory or regulatory authorities appears

to conflict with federal requirements, EPA cannot approve the

program unless the authority is revised or the AG demonstrates

that the authority is adequate.  If the AG's Statement leaves

authority ambiguous, EPA will request clarification.

B.   State Statutory Authority and the Contents
    of the Attorney General's Statement

    The following discussion addresses the statutory authority

required for State program approvals.  Each of these topics

must be discussed by the Attorney General in his or her state-

ment.  This discussion tracks the Model AG's statements for

NPDES and pretreatment that EPA has developed.  These models

are reproduced in Volume II.  For new programs and full program

legal reviews, State authority must cover all topics addressed

in this Chapter.  Where States are modifying programs to add a

new component, it is only necessary to look at the section

dealing with that program element.


     This Chapter also identifies many of the areas which

 frequently  create stumbling blocks  to program approval, and

 explains what constitutes adequate  State authority.  However,

 these problems areas will not be the only ones considered during

 EPA's review of the legal authorities.  EPA will give added

 scrutiny to any State authority which appears to conflict with

 the requirements under section 402  and the federal NPDES regulations

     As discussed above, the Attorney General's statement must

 also cite to regulations providing  the State's authority to

 administer the program.  These regulatory requirements are

 discussed in Chapter 4.

 (1)  NPDES Requirements

     (a) Authority to Issue Permits

     (1) Existing and new point sources

     The scope of State NPDES programs must be at least as

broad as EPA's program.  States must have authority to re-

quire all point source discharges,  existing as well as new,

to obtain permits.2.7  States may not exclude types of point
£/  EPA's NPDES regulations create an exception to the general^
requirement that States regulate all discharges.  NPDES States
need not have authority to regulate discharges on Indian lands.
The inability to regulate these activities is not considered a
partial program and is not an impediment to EPA approval
(40 CFR 123.l(h)).  In fact, EPA cannot authorize a State
to regulate discharges on Indian lands unless the State demon-
strates such authority.  See also, EPA's Policy for Administra-
tion of Environmental Programs on Indian Reservations (11-8-84)
and State Jurisdiction over Indians Living on Tribal Lands,
General Counsel's Opinion No. 77-6 (5-31-77).

sources, as defined in the Act and EPA regulations, from the

permit requirement.£/  For example, some States in the past

have sought to exclude certain categories, types, or sizes

of point sources from the basic requirement to obtain a permit.

Other States have attempted to "grandfather" or exempt discharges

already in existence, or provide automatic permits for existing

dischargers.  Such schemes are inconsistent with the CWA.

     It is also not permissible for States to develop provisions

for de jure permits (i.e., the discharger is authorized to

discharge if, after a certain time period, the permitting

authority has not acted on the discharger's permit application).

This approach would allow issuance of a permit without notice

and comment and without the permitting authority determining the

appropriate permit limits.  No facility may discharge without

a valid NPDES permit issued in accordance with State regulations

equivalent to the federal NPDES regulations unless it has been

specifically excluded from regulation.  However, States may

allow NPDES permits to be continued after expiration where the

permittee has filed a timely and complete application.

     State authority to require dischargers to obtain NPDES
permits must be based on the existence of a "discharge of

pollutant, from a point source, into waters of the United

States" (as these terms are defined in section 502 of the

Act and 40 CFR 122.2 of the NPDES regulations).  State
V  EPA regulations at 40 CFR 122.3 list several types of
discharges as being excluded from the NPDES permit requirements
Most of these exemptions represent discharges that EPA has
determined not to be point sources.

provisions that seem to require an additional demonstration,

such as a showing of pollution, a public nuisance, harm to the

environment, or violations of effluent or water quality standards,

are not valid unless the State can demonstrate that they are

in fact consistent with the CWA.  Generally, where the State

law requires an NPDES permit for any discharge that causes or

may cause pollution, or otherwise predicates the regulatory

requirements on such provisions, the State law does not meet

federal requirements and must be changed.

     State law requiring discharge permits also must provide

adequate authority to issue permits regulating the disposal of

pollutants into wells (see, CWA section 402(b)(1)(D)).  This

authority must enable a State to prevent pollution of ground

and surface waters and protect public health and welfare by

preventing or permitting discharges to wells.  An approved

State Underground Injection Control (UIC) program under section

1422 of the Safe Drinking Water Act will satisfy this requirement.

     (2) Waters of the State

     The State law must define "Waters of the State" as

broadly as the NPDES regulations (see 40 CFR 122.2).  This

definition is very broad and encompasses virtually all surface

waters.  The State cannot limit the scope of the NPDES program

by exclusions for waters "wholly on private property," or

"non-continuous or intermittent" water bodies, etc., unless

the State can demonstrate that those exclusions are not in-

consistent with the Act.  For example, some waters wholly

on private property are considered waters of the U.S. because


of  connections to  interstate commerce, such as making them

available for recreational use by the public.  (There may

also be pretreatment-related concerns with the definition of

waters of the State.  See Part B(2)(a), below.)

     (b)  Authority to Deny Permits in Certain Cases

     No discharger has a right to an NPDES permit and State

law may not provide dischargers with such a right.  States

also must have authority to deny permits.  This authority can-

not be limited by  requiring the State to demonstrate "pollution"

or  similar environmental impact.

     In addition,  States must have authority to prohibit permit

issuance in certain circumstances.  The Act prohibits permit

issuance in the  four circumstances listed below; States must

have the authority to deny permits in these circumstances even

though the discharge would not violate any applicable effluent

guideline or water quality standard.  The following discharges

are prohibited:

     0 Discharges  which would conflict with an approved Area
       Management  Plan (section 208(e));

     e Discharges  of radiological, chemical, or biological war-
       fare agents, or high level nuclear wastes (section

     0 Discharges  which, in the judgment of the Army Corps of
       Engineers,  would substantially impair anchorage and/or
       navigation  (section 402(b)(6)); and

     0 Discharges where EPA has objected to the State's draft/
       proposed  permit.

     The federal rules also prohibit the issuance of permits

in  other situations (listed in §122.4).  State law must provide

similar authority.

      (c)  Authority to Apply Federal Standards and Requirements
          to Direct Dischargers

      (1) Technology-based Effluent Limitations Guidelines

      Section 402(b)(l)(A) of the CWA requires States to have

authority to adopt and apply federally promulgated, technology-

based effluent limitations guidelines in their NPDES permits.

The Attorney General's statement must describe the mechanism

by which these standards will be -adopted into State law and

applied to dischargers.  If the State must independently

develop and promulgate its own effluent standards and limita-

tions, they must be at least as stringent as the federal

standards and the State must cite to the controlling statutory

and regulatory authorities.  States must require compliance

with technology-based requirements no later than the deadline

required under federal law.  The applicable technology-based

limitations are described below.

      (i) Industrial Permittees

     Pursuant to section 301(b) of the Act, existing point

sources, other than publicly owned treatment works, are

required to achieve pollutant reductions resulting from the

application of the following federal effluent standards:

      0 By July 1, 1977, effluent limitations which require
       the application of the best practicable control
       technology currently available (BPT) for all pollutants;

      0 By July 1, 1984, effluent limitations which require
       the application of the best available technology
       economically achievable (BAT) for toxic pollutants,
       including the elimination of discharges of all pollutants
       where appropriate;

      0 By July 1, 1984, effluent limitations for conventional


       pollutants which require the application of the best
       conventional control technology (BCT); and

     8 By July 1, 1987, effluent limitations which require the
       application of the best available technology economically
       achievable (BAT) for nonconventional pollutants.

     These requirements apply even where the permittee's

discharge consists solely of sanitary waste equivalent in

character to domestic sewage.

     (ii) Municipal Permittees

     State Agencies must require publicly owned treatment works

(POTWs) to achieve secondary treatment no later than July 1,

1977 (Section 301(b)).  However, section 301(i) allows POTWs

to request an extension of the compliance deadline if they

were awaiting construction grant awards and requested the

extension in 1978.  POTWs granted compliance extensions must

comply with secondary treatment (and water quality-based

limits, see below) no later than July 1,  1988.  The State's

authority to require compliance by POTWs may not be limited,

such as by being dependent on funding availability.

     (2) Water Quality-Based Effluent Standards

     States must .have authority to apply water quality standards,

which are developed under State law and approved by EPA,£/ in

permits.  These standards must be imposed in permits whenever

they are more stringent than applicable technology-based

limitations (CWA 301(b)(1)(C)).  Compliance with water quality-

based permit limits must be required by July 1, 1977.  If

new or revised water quality-based permit limits are developed
£_/ In the event a State fails to submit a water quality standard,
   or the standard as submitted or subsequently revised does
   not meet the requirements of section 303 of the Act, EPA is
   authorized to develop the standard in lieu of the State.


after that date, the State must have authority to require

compliance within a reasonable time.  The State's water-quality

standards must implement the total maximum daily load allocations

(TMDL) established under section 303(d), and the continuing

planning process under section 3O3(e) of the Act. £/  States

also must have authority to impose in permits any more stringent

water quality-based effluent limitations developed by EPA

under section 302 of the Act where necessary to achieve

water quality standards.  Only EPA may establish water quality-

based effluent limitations under section 302? this provision

does not apply to State programs, except to the extent that

States must ensure compliance with such limits.  States may

not incorporate provisions similar to those in section

302(b)(2) into State law.  Those provisions are integral to

the section 302 standard-setting process and have no application

to water quality standards established under section 303.

     (3) New Source Performance Standards

     States are required to impose federal new source perfor-

mance standards.  These standards reflect the greatest degree

of effluent reduction achievable through the application of

the best available demonstrated control technology, processes,
operating methods, or other alternatives, including, where

applicable, a no-discharge requirement.  States must require

compliance with these standards upon commencement of discharge
   The State process for developing water quality standards
   and TMDLs must be consistent with 40 CFR Part 131.  These
   State procedures are not reviewed as part of the NPDES
   program approval or review except to the extent they are
   implemented through the NPDES permit process.

 (see 40 CFR 122.29).  In order for these standards to be imposed

 correctly, the State's, definition of "new source" must be at

 least as stringent as EPA's  (see, 40 CFR 122.2 and.122.29(a)

 and  (b)).                              .

     (4) Toxic Pollutant Effluent Standards

     States must have authority to apply federal toxic

 pollutant effluent standards under Section 307(a) to new and

 existing sources.  Compliance with these standards must be

 achieved by the date specified in the standard (which is

 generally, no more than one year after promulgation).  These

 standards appear in 40 CFR Part 129.  Although new standards

 must apply regardless of their presence in existing NPDES

 permits, States also must have authority to modify permits to

 insert toxic pollutant limitations.

     (5) Best Professional Judgment (BPJ) Effluent Limitations

     EPA cannot approve a State program unless that State

 is authorized to fully implement all aspects of the NPDES

program, even where an applicable federal effluent standard

or limitation has not been promulgated (i.e., the State must

be able to develop permit limitations based upon the best

professional judgment (BPJ) of the permitting authority).

When establishing BPJ limitations, the permitting authority

must consider the statutory factors for the appropriate level

of technology set out in section 304(b) of the Act (see also,

 40 CFR 125.3(d)).  In cases where EPA has promulgated an

effluent guideline but the guideline does not address a particular

pollutant present in the discharger's effluent, the State must

have authority to use a combination of effluent guidelines

and BPJ to establish appropriate permit limitations for the  .

entire discharge.

     (6) Ocean Discharge Effluent Limitations

     When permitting discharges into the territorial seas,

States must have the authority to apply additional require-

ments derived from the ocean discharge criteria promulgated

by the Administrator under section 403 of the Act (see, 40

CFR Part 125, Subpart M).  Note that all discharges beyond

the territorial seas (3 miles offshore) are outside State

jurisdiction and are permitted by EPA.

     (7) Compliance Schedules

     States must have authority to incorporate compliance

schedules in NPDES permits.  These schedules must require

compliance with applicable requirements no later than statutory

deadlines.  States may not impose or modify compliance schedules

where those schedules would be inconsistent with federal

requirements (such as extending beyond a statutory deadline).

     (8) Variances

     The CWA and EPA regulations authorize variances from

applicable effluent limitations in several instances.  States

are not required to allow dischargers variances from such

limitations,  although they may do so.  However, if a State

authorizes variances, the State standards must be at least

as stringent as federal requirements.

     States also may not allow for variances that are not

authorized under federal law, whether in the form of adjustments


to the permit or a separate State rulemaking that modifies

the standard for a particular permittee.  For example, a

State could not allow for variances from water quality standards

based upon economic impact, since these variances are not

available under the Act.  State procedures for acting on variances

also must be consistent with federal requirements.  Thus, States

may not grant certain variances (e.g., Fundamentally Different

Factors) although they may have authority to incorporate an

FDF variance granted by EPA.

     Variances from technology-based limitations for industrial

facilities are authorized under CWA sections 301(c) (for non-

conventional pollutants based upon economic impacts); 301(g) (for

nonconventional pollutants where there are no water quality impacts;

301(k) (compliance extensions for innovative technology); 301(1)(2)

(delay in POTW construction); and 316(a) (thermal).  EPA also

allows variances based upon fundamentally different factors at

the permitted facility.  POTWs are eligible for variances

under section 301(h) (ocean discharge) and compliance extensions

under section 301(i) (federal funding for POTW construction).

     (d) Authority to Limit Permit Duration
     The CWA establishes maximum permit terms of not more than

five years.  Permits may, of course, be issued with shorter

terms.  Notwithstanding the five year authorized term, a permit

based upon BPT may not be issued with an expiration date later

than the applicable BAT/BCT statutory deadline.

     Under federal law, where a permit expires through no fault

of the permittee, it is administratively continued if the


 permittee  filed  a  timely  and  complete application  for a new permit

 Although not  required by  the  CWA,  States may allow the terms

 of  expired permits to be  administratively  continued  in a

 similar manner.  The Attorney General must assure  EPA that

 authority  to  continue expired permits is consistent  with the

 State's Administrative  Procedure Act or other procedural

 laws, as well as the State's  own NPDES regulations (see, 40

 CFR 122.6).

      (e)   Authority For Entry,  Inspection, and Sampling; and
           Applying Monitoring,  Recording, and Reporting
           Requirements  to Direct Dischargers

     The Attorney  General must  indicate whether State law

 authorizes the Director to impose  recording, reporting,

 monitoring, entry, inspection,  and sampling requirements,

 and  explain how these requirements will be imposed.  The State

 must have  authority to  enter  and inspect, at reasonable times,

 any  premises on which an effluent  source is located  or records

 required by the CWA are kept.   In practice, this means the

 States must be able to  inspect  any NPDES permittee.  Thus,

 a State exclusion  for private residence is generally not

 authorized since a private residence may be a discharger

 regulated by the program or may be a depository for  records

 required to be kept under federal  law.

      (f) Authority to Require Notice of Introduction of
          Pollutants into Publicly Owned Treatment Works

      States must have the authority to require POTWs to

provide notice of  the introduction of pollutants to  the POTW

by industrial users.  This authority is fully discussed in

the pretreatment section of this chapter (see Part B(2)(c),

below at page 3-27).

     (g)  Authority to Issue Notices, Transmit Data and
          Provide Opportunity for Public -Hearings

     A  State must have authority for public participation

in the  issuance of NPDES permits that is equivalent to federal

requirements.  The CWA contains several provisions encouraging

or requiring public participation in a State's permit develop-

ment process.  Detailed requirements for public involvement

are outlined in 40 CFR Part 124.  These include authority for

public  notice and comment and opportunity for public hearing

on all  permits.  It is expected that most States will choose

to cover the detailed provisions for public participation in

administrative regulations rather than statutory authorities.

However, State statutory authority must be broad enough to

'allow development of regulations consistent with federal

requirements.  The State must ensure that draft permits and

fact sheets be available for public review and comment.  The

notice  and comment procedures also must apply when the State

proposes to modify, terminate, and revoke and reissue permits.

The State authority must ensure consideration of all relevent

public  comments before the State decides to issue or modify a

permit, and a responsiveness summary of the significant

comments must accompany the final permit notice.

    ' A  State may not limit the applicability of these public

participation procedures.  Thus, a State law which limits

hearings or opportunities to comment to aggrieved applicants

will not comply with the public participation requirements of

the Act.  Similarly, the opportunity to request a public hear-

ing (non-adjudicatory) must be available to the citizenry as

well as to the permit applicant.  If held, a hearing must be


convened before rather than after a final decision on the


      (h) Authority to Provide Public Access to Information

      The treatment of confidential business information has'

been  a troublesome area in State program approvals.  Some

State laws deny the permitting authority access to "confidential"

or "proprietary" information.  Other laws require only that such

information be withheld from the public.  Many of these restrictions

are inconsistent with the CWA.

     Under the CWA, States must allow public access to all

information from permittees except confidential business infor-

mation.  However, certain information is not eligible for con-

fidential treatment.  All permits and information required in

permit applications must be made available (although information

not required by the permit application does not fall within this

category).  In addition, information constituting effluent

data must be made public.  EPA has defined effluent data very

broadly to include any information necessary to evaluate the

discharge, determine effluent limits,  ascertain compliance and

allow meaningful public comment on permits (see, 40 CFR 2.302).

Thus,  where permit limits are based upon the facility's production,

production data could not be claimed confidential if it met the

criteria in Part 2.^.7

     State laws must be consistent with these broad public access

to information requirements.  States also may not create restric-

tions on the use of such information,  including effluent data,
2J Federal effluent guidelines are often calculated on a production


 (e.g., making information received from a discharger inadmissible

 in an enforcement action against the discharger).  The State

 must have authority to disclose any information, even trade

 secret information, to EPA.  EPA's use of such disclosures would,

 of course, be subject to the appropriate requirements for public

 access in 40 CFR Part 2.  Furthermore, disclosure is subject

 to protective orders issued by a court or Administrative Law


     (i)  Authority to Modify, Revoke and Reissue or Terminate

     States must be authorized to modify, revoke and reissue,

or terminate permits for cause.  Section 402(b)(l)(C) defines

cause to include the following:

     0 Violation of any conditions of the permit;

     0 Obtaining a permit by misrepresentation or failure
        to disclose all relevant facts; and

     0 Changes in circumstances which require either a temporary
        or permanent reduction or elimination of the permitted

A complete listing of authorized causes for permit modification

is set out in 40 CFR 122.62, and causes for termination at 40

CFR 122.64.  States may not authorize permit modifications for

less stringent limits where these would not be allowed under   .^

federal law.

     (j)  Authority to Enforce the Permit and the Permit Program

     State law must provide for adequate enforcement authority,

including the ability to enjoin violations and bring both

civil and criminal action for any violations of permits or

the permit program.  Other sanctions, such as the ability to

bring actions for damages,  are allowed, but they must be addi-


tional rather than substitutes  for these enforcement remedies.

     The NPDES regulations outline the enforcement capabilit-

ies which must be included in a State program  (se_e, 40 CFR

123.27).  A State must have authority to seek  injunctive

relief in two instances.  First, the State must be able to

immediately restrain any unauthorized activity endangering the

public health or the environment.  Second, it must have

authority to sue to enjoin any threatened or continuing vio-

lations without first revoking the permit.  State penalty

authority must allow the State to seek civil penalties in the

amount of at least $5,000 per day of violation, seek criminal

fines (for willful or negligent violations) in the amount of

at least $10,000 per day of permit violation, and seek criminal

fines for knowing false representations or certifications, or

knowingly rendering monitoring devices inaccurate, in at

least the amount of $5,000 for each instance of violation.

Other provisions in the Act relating to criminal sanctions

which States are encouraged to provide include the following:

  e Imprisonment - section 309(c) provides for maximum
    imprisonment of one year (or six months for false
    statements); and

  0 Additional penalties - section 309(c) provides for a
    doubling of maximum fines and imprisonment terms for
    "second offenders".

     The Attorney General must describe the State Agency's

enforcement options in detail,  covering each of the above

points.   In addition,  since federal law includes criminal

sanctions for persons who willfully or negligently violate

effluent standards or limitations, water-quality standards,

or permit conditions, the Attorney General must indicate

whether criminal fines or imprisonment, based upon negligent

conduct, is permissible under State law.  The Attorney General

must also describe any limitation or prerequisites to enforce-

ment actions.  Such restrictions will be carefully reviewed

to determine whether State authority still meets federal

minimum requirements.

     States also cannot provide additional defenses or rights

to dischargers where not authorized by federal law.  Thus, a State

could not allow a permittee to challenge its permit limits in

an enforcement proceeding and State law that provided such an

option would be inconsistent with the federal requirements.

Similarly, a State could not restrict its enforcement by

limiting the use of information in an enforcement action.

     Administrative enforcement mechanisms, such as informal

orders (not directly enforceable by a court), may be used

as a first response to a violation, but are not an acceptable

substitute for the above-described formal enforcement

capabilities.  Furthermore, if provisions for administrative

compliance orders, requiring the cessation of violations of

permit conditions or allowing the administrative assessment

of penalties for violations, are present in the State's law,

the Attorney General must indicate whether these procedures

must be exhausted before the State Agency is permitted to

seek civil or criminal penalties, or injunctive relief.

Note that the NPDES regulations require that injunctions be

available without prior permit revocation of permits (see,

40 CFR 123.27).  Of course, the Attorney General should also


 describe  any  additional  enforcement  remedies  available to

 the  State,  including citations, to  supporting  legal authorities.

      State  programs must allow for public participation in

 the  enforcement process.  The  NPDES  regulations allow States

 to choose one of two basic options.  The first option is for

 State  law to  provide for intervention as of right in any enforce-

 ment action.  States choosing  this option may not place restric-

 tions  on  this right, other than  jurisdictional limits such as

 standing.   Alternatively, where  State laws allow permissive

 intervention  in State actions, the State may agree not to

 oppose such intervention in any  enforcement proceeding.  (Although

 the NPDES regulations specify  only that the State will not

 oppose permissive intervention where authorized under State

 law, EPA has  interpreted this  option as being available only

when permissive intervention is  possible.)  Under this option,

 the State also must agree to investigate and respond to citizen

complaints and publish all settlement agreements for a public

comment period of at least 30  days.  A third option available

to States is  a hybrid of the first two.  For example, a State

may allow intervention through a rule analagous to Rule 24(a)(2)

of the Federal Rules of Civil  Procedure and provide an assurance

by the appropriate State enforcement authority that it will not

oppose intervention under the  State analogue on the ground that

the applicant's interest is adequately represented by the State.

Such a hybrid public participation approach is consistent with

federal requirements,  even though it does not clearly fit within

either of the options outlined in the regulation.  These require-

ments were first added in 1979.  Thus many approved States do

not yet have  the required authority.


      (k) Conflict of Interest;  State Board' Memberships

      The CWA requires that no State Board, Agency or organiza-

tion  which approves or acts on NPDES permit applications or

portions thereof, may include among its membership, any person

who receives, or has during the previous two years received, a

significant portion of his income directly or indirectly from

permit holders or applicants for an NPDES permit.  "Significant

portion of income" is defined in EPA's regulations as 10 percent

or more of gross personal income for a calendar year, except

that  it means 50 percent or more of gross income if the recipient

is over 60 years of age and is receiving that portion of income

as a pension retirement or similar arrangement (see, 40 CFR

123.25(c)).  "Permit holders or applicants for a permit" do

not include State Agencies or Departments.  All State programs

must have conflict of interest protections which are at least

as stringent as those of the CWA.

     This statutory prohibition against conflicts of interest

has been a problem in a number of States.  Some States require

permitting boards to have representatives of the regulated

public.  Other State boards are elected and could include

members who receive income from permittees.  These States'

approaches are inconsistent with the explicit language of the

Act.  States must either establish the federal conflict prohibition

or the Board must delegate its permitting and enforcement

powers to a position that is prohibited from conflicts.  Some

States have sought to avoid the prohibition through recusal on

matters affecting the permittee.  This alternative is also not



      (k) Incorporation by reference

      Although States seeking NPDES program approval are required

to  adopt administrative regulations similar to EPA's, there is

no  legal prohibition against a State doing so through incorpora-

tion  by reference.  Clearly, it,is preferrable to have specific

State regulations that explain applicable requirements fully,

but States may choose instead to have a short incorporating

provision.  If a State chooses to pursue incorporation by

reference, the Attorney General must certify that such an

incorporation is proper and enforceable under State law and

includes all of EPA's regulations which are applicable to

States.  The Attorney General should also explain the form, if

any,  that such incorporation must follow under State law and

explain how the rules meet those requirements ••  The Attorney

General should indicate, by means of a list, those federal

regulations which the State has incorporated and explain how

the list was generated.  The Attorney General should pay particular

attention to any attempt to incorporate federal law prospect-

ively, that is, to incorporate revisions to federal law which are

yet to occur.   Most State Courts have held such incorporations

invalid as unconstitutional delegations of legislative power

and State authority.  EPA will closely review any attempts to -^

incorporate State law prospectively.

(2)  Pretreatment Requirements

      (a)   Authority to Apply Federally Promulgated Categorical
          Pretreatment Standards to Industrial Users

     States seeking pretreatment program approval must have

authority to impose pretreatment standards on all industrial

users of publicly-owned treatment works (POTWs) .   Pretreatment

standards include the general and specific prohibited discharges

listed in 40 CFR 403.5, local limits developed by POTWs,  and

federally promulgated categorical pretreatment standards  found

in 40 CFR Subchapter N.

     A State must be able to apply and enforce these pretreat-

ment standards directly against any owner or operator

of any source subject to them.  Where the State regulates

all industrial users (lUs) itself, either through regulations or

State-issued permits to all industrial users, the requirement

that the authority operate directly should not be a problem.

However, most States will administer the pretreatment program

like the federal program - with POTWs being approved to  .

regulate industrial users of their system and the State

primarily overseeing the POTWs1 efforts.  In these cases, the

State cannot rely upon the POTW to impose the' pretreatment

requirements ; such requirements must apply to all lUs irrespective

of POTW action.  Thus,  a State scheme that allows the State only

to enforce against the POTW when the industrial user violates a

pretreatment requirement is impermissible.  Similarly, if the State

must take an intermediate step, such as issuing an order with

pretreatment requirements or revoking the POTWs approved pre-

treatment program (or permit issued under that program),  prior

to acting, the State's authority does not meet federal require-

ments.  Of course, a State permit system would be adequate,

even though the requirements would only be applicable once

imposed in the permit,  if the State issued permits to all

industrial users.

      It must also be clear that the State has authority to

apply pretreatment standards to industrial users.  Many State

statutes only authorize the State to regulate discharges to

waters of the State.  Unless the term discharge is defined

clearly to  include indirect discharges, it is unlikely that such

authority is consistent with federal requirements.  Industrial

users do not discharge to waters, but instead to the POTW1s

sewer system.  This has been a common problem in State pretreat-

ment  submissions.  States are cautioned that an easy remedy,

such as defining discharge to include indirect discharges, may

result in requiring all industrial users to obtain permits

(under State law), a result which the State may not have intended

or desired.  In addition, such a definition may have the absurd

result of requiring water quality standards for sewer lines.

      (b)  Authority to Apply Pretreatment Requirements in NPDES
          P~ermits for Publicly Owned Treatment Works

     State Agencies must have authority to apply the following

pretreatment requirements in terms and conditions of NPDES

permits issued to POTWs:

     0  Compliance schedules for local POTW pretreatment program
        development (40 CFR 403.8(d));

     0  Conditions of an approved local program (40 CFR 403.8(c));

      0  A modification clause allowing the POTW's permit to
        be reopened to incorporate either an approved local
        pretreatment program, or a compliance schedule for
        developing a local program (40 CFR 403.10(d));

      0  Effluent discharge limitations to be enforced against
        industrial users (40 CFR 403.5); and

      0  Conditions of an approved removal credit (demonstrated
        percentages of pollutant removal) (see,  40 CFR 403.7,
        and subsection (d), below).

     Most States should have adequate statutory authority to

impose these conditions in NPDES permits as part of their NPDES

authority.  This will frequently be a general authorization to

include appropriate conditions in permits.  However, these

authorities should be reviewed to ensure against inconsistencies

that would prevent imposition of these conditions.

     (c)  Authority to Require Notice of Introduction of
          Pollutants into Publicly-Owned Treatment Works

     States must have the authority to require POTWs to provide

notice of the introduction of pollutants to the POTW by industrial

users.  CWA section 402(b)(8) specifically requires permits to

contain conditions requiring notice of new or increased discharges

from industrial users who would be subject to either section

301 or 306 of the Act if they were discharging directly.  The

State must also be able to require notice of the anticipated

impact of such discharges.  Most States laws should meet this

requirement through their power to incorporate conditions into

NPDES permits, although the authority must still be reviewed to

ensure that there are no restrictions.  Since the NPDES regula-

tions (40 CFR 122.42(b)) require such notices, States with

NPDES authority will generally have adequate authority to

meet this requirement.

     (d)  Authority to Make Determinations on Requests for Local
          Pretreatment Program Approval and Removal Allowances

     Unless the State chooses to assume responsibility for

implementing local POTW pretreatment programs, State law must

authorize the State Agency to approve or deny municipal requests

for local POTW pretreatment programs.  The State must have

authority to follow procedures equivalent to EPA's, including


allowing  for public notice and comment  (see, subsection (h),

below).   Local programs may not be approved where the POTW

lacks  either the authority or the procedures to administer and

enforce the program against industrial users.

     Although not required by the CWA, States may allow POTWs

to make adjustments to the categorical pretreatment effluent

limitations placed on industrial users based upon the consistent

pollutant removal achieved by the treatment works.  States

choosing  to allow POTWs to request and receive removal credits

authority must be able to follow procedures similar to those

used for  local program approval.  States are not required to

grant removal credits.

     (e)  Authority to Make Determinations on Categorization
          of Industrial Users, and Requests for Fundamentally
          Different Factors Variances

     State law must also authorize the State Agency to make a

determination as to whether or not the industrial user falls

within a particular category or subcategory.  The category

determination allows the industrial user to know which cate-

gorical standard is applicable to its discharge.  The Attorney

General must also describe the requirements that the State

Agency must follow in making category determinations.  States

should note that under federal law (40 CFR 403.6(a)(4)),  States

must provide industrial users the right to appeal the decision

to EPA.  States that cannot provide for such appeals are not

authorized to make category determinations.  In any instance

where a State lacks the authority to make category determinations,

EPA will make the determination.

     States may also choose to develop authority to act on

requests for fundamentally different factors (FDF) variances for

industrial users, although States may choose not to allow such

variances.  Under federal law, States may not grant FDF variances,

but may only deny or recommend approval to EPA.  States also

may not grant State FDF variances under their own authority,

since these could make the program less stringent than the

federal program.  The Attorney General must describe the

State's FDF requirements and procedures.

     (f)  Authority to Apply Recording, Reporting and Monitoring  .

     States must have authority to require industrial users and

POTWs to submit reports, keep records, and install, use, and

maintain monitoring equipment.  The Attorney General must

explain that the State has authority to require each report

identified in the general.pretreatment regulations (40 CFR

403.12) (see also subsection (c), above).  These include baseline

monitoring reports, compliance reports, and periodic reporting

by industrial users.  POTWs and industrial users must be required

to sample, respectively, their influents and effluents.  The

Attorney General also must describe the requirements which the

State agency must follow in order to accomplish the above


     It must be clear that the State's reporting and monitoring

provisions apply to indirect discharges and are not limited to

direct discharges.  For example, some States have authority

that allows imposition of these requirements to "point sources"

or to "discharges to waters of the State."  These provisions


generally will not provide adequate authority.  The term point

source usually applies only to direct discharges; the problems

with  "discharge" under the pretreatment program are discussed

above in Part B(2)(a) of this chapter.  If the State statute

contains such provisions, the State must demonstrate that they

apply to indirect discharges as well.

      (g)  Authority to Apply Entry, Inspection and Sampling

     State law must provide authority to enable authorized

representatives of the State and POTWs with approved pretreat-

ment programs to enter and inspect at reasonable times any

premises of a POTW or of an industrial user where an effluent

source is located or in which any records are maintained.

This must include authority to review and copy any records

required to be maintained, inspect any monitoring equipment,

and sample any industrial user's effluent.  As discussed above

(subsection (f)), it is important to ensure that the State's

authority applies to indirect dischargers.  The Attorney General

must describe the requirements which the State Agency must

follow in order to accomplish the above activities.

     (h)  Authority to Issue Notices, Transmit Data, and
          Provide Opportunity for Public Hearings and Public
          Access to Information

     States must have authority to provide public notice and

comment on requests for local pretreatment program approval and

for removal credit authority.  States must also provide an

opportunity for public hearing on these decisions and public

notice of the final decision.  These public notices and comment

provisions are similar to those for NPDES permits (described


above at Part B(l)(g)), and State notice provisions must be

equivalent in scope, including the interested public,  affected

States and governmental agencies.

     States also must have authority to provide public access

to information from permittees and industrial users.  All

information, other than confidential business information, must

be available to the public.  As with NPDES information, effluent

data may not be claimed confidential (this authority is the same

as for direct dischargers, discussed above at Part B(l)(h)).

The public also must have access to requests for local program

approval and comments thereon.  Finally, the State must have

authority to transmit any requested information to EPA.  The

Attorney General must describe the requirements which State

Agency must follow in order to accomplish the above activities.

     (i)  Authority to Enforce Against Violations of Pretreatment
          Standards and Requirements By Industrial Users

     States must have authority to enforce against violations

of any pretreatment standard or requirement by industrial users.

(Enforcement authority is also required against POTWs, but

since the POTW1s requirements are all inserted into its permit,

the authority to enforce against permit violations is adequate -

see Part B(l)(j) of this chapter.)  Pretreatment standards

are broadly interpreted (as discussed above in Part B(2)(a)) to

include categorical pretreatment standards, the specific and

general prohibitions in the pretreatment regulations,  and local

limits.  Pretreatment requirements include all other regulatory

provisions imposed upon industrial users, such as reporting

requirements.  States must have authority to enforce directly

against violations of any of thse provisions.


     State enforcement authority must consist of both civil and

criminal penalties  (equivalent to those for NPDES permit violations)

and  injunctive relief authority.  (Enforcement authority for

NPDES State programs is discussed above at Part B(l)(j). )  As
with the NPDES enforcement authority, a State may not substitute  •
other mechanisms for the required authorities.
     States also must have authority to join the POTW as a

defendant in any action against one of its industrial users for

violations of pretreatment requirements.  The CWA in Section

309(f) authorizes EPA to join the POTW where it fails to in-
itiate an enforcement action after receiving notice from EPA of

its  intent to enforce against the violation.  States must have

an equivalent provision (see also 40 CFR 403.5(e)).  Generally,

methods of ensuring that industrial users comply with section

307(b) of the Act vary from State to State.  For example, a

State could issue permits to all indirect dischargers and have
enforcement authority against all permit violations.  However,

where the State does not issue permits to all industrial users,
it normally must have regulatory requirements that impose

pretreatment requirements, and must have authority to enforce

those regulations.

     The Attorney General must discuss the State's options for

ensuring compliance with these requirements and the authority
therefor.  In examining this authority, it is important that

State enforcement authority be consistent with the chosen

regulatory scheme.  Review of the enforcement language should

also make sure that the various provisions are consistent

with one another.  For example, if the State's civil authority

applies to standards and regulations, but the criminal provision

applies to conditions and limitations, the criminal authority

does not appear adequate to cover violations of regulations,

especially given strict interpretation of criminal statutes.

     Finally, the State law must include provisions allowing

the State to seek injunctive relief restricting or prohibiting

the introduction of pollutants into a publicly owned treatment

works in the event a condition of a permit for the discharge

of pollutants from such a treatment works is violated.

     (j)  Incorporation by Reference

     See discussion of incorporation by reference in Part

B(l)(l) of this chapter.

     (3)  Authority Over Federal Facilities

     Prior to the 1977 Amendments to the CWA, States were not

allowed to exercise NPDES jurisdiction over discharges by

federal facilities.  (See, EPA v. California State Water

Resources Control Board, 426 U.S. 200 (1976)).  In the 1977

Amendments, Congress declared that all federal facilities must
comply with applicable State law, thus requiring States approved

to administer the NPDES program to regulate federal facilities

within the State.  Consequently any State whose program was

approved before 1977 must modify its program to cover these

facilities.  Generally, this means that the definition of

"person" must be broad enough to encompass federal facilities.


The Attorney General must therefore certify that there are no

barriers, prohibitions, or exclusions on regulating federal


      (4)  General Permit Requirements

      (a) Authority to Issue and Enforce General Permits

     General permits are administrative tools designed to

assist the permitting authority in meeting the mandates of the

CWA.  Unlike individual permits, general permits are not written

for a particular facility at a specific location, but instead

cover multiple facilities in similar, but not necessarily

identical circumstances.  For this reason, general permits are

more akin to a rulemaking proceeding than traditional licensing.

     If a State intends to issue general permits, the State

must have authority which would allow such permits, although

it need not specifically reference them.  The primary considera-

tions will normally be whether State law requires individual

permits or could be interpreted more broadly.  The Attorney

General must assure EPA that the State's permitting authority

does not require individual permits for all sources, and that

issuance procedures for general permits are consistent with State


(b) Incorporation by Reference

     See discussion of incorporation by reference in

Part B(l)(l) of this chapter.

                       REGULATORY AUTHORITIES
   Contents	         Page

A. Background on NPDES Regulatory Requirements              4-1

   (1)  Reasons for Regulations                             4-1

   (2)  Incorporation by Reference                          4-3

   (3)  Attorney General Involvement                        4-4

B. Required State Program Regulations

   (1) NPDES Regulations                                    4-4

       (a)  Program scope and definitions                   4-4
            (40 CFR 122.2,  122.3, 122.5, and 122.7)

       (b)  Permit application requirements                 4-8
            (40 CFR 122.21  and 122.22)

       (c)  Additional application information required     4-11
            from special dischargers (40 CFR 122.21(g-k),
            122.23, 122.24, 122.25, 122.26, and 122.27)

       (d)  Permit conditions and effluent limitations      4-15
            (40 CFR 122.41, 122.44, 122.45, 122.48,
            122.50, 124.59  and 125 Subpart A)

       (e)  Other permit program requirements.              4-26

       (f)  NPDES variance  requirements                     4-27
            (40 CFR 122.21(1) and (m), 124.54, 124.62,
            124.66, and 125 Subparts C, D, G, H,  and J).

       (g)  Procedures for  public participation             4-32
            (40 CFR 124.3,  124.6, 124.8, 124,10,  124.11,
            124.12, 124.17, 124.56, and 124.57)

       (h)  Transferring,  modifying,  revoking and           4-36
            reissuing and terminating permits (40 CFR
            122.61, 122.62, 122.63, 122.64 and 124.5)

       (i)  Enforcement and penalties for permit            4-40
            noncompliance (40 CFR 122.41, 123.26 and


    Contents	Page

    (j)  Incorporation of EPA test procedure guidelines  4-40

(2) Pretreatment Regulations                             4-41

    (a)  Definitions (40 CFR 403.3)                      4-42

    (b)  Prohibited discharges,  local limits,  and        4-43
         categorical standards (40 CFR 403.5 and
         403.6 Subchapter N)

    (c)  Industrial user reporting (40 CFR 403.6(e)(3),  4-45
         403.10(f), 403.12,  and  403.14)

    (d)  Local POTW pretreatment programs (40  CFR 403.8,  4-48
         403.9,  403.11)

    (e)  Removal credits (40 CFR 403.7 and 403.11)       4-51

    (f)  Fundamentally different factors variances
         (40 CFR Part 125 Subpart D,  403.13)             4-52

    (g)  Net/gross adjustments (40 CFR 403.15)           4-53

    (h)  Upset (40 CFR 403.16)                           4-53

(3)  Federal Facilities Regulations                      4-54

(4)  General Permits Regulations                         4-55

    (a)  Sources                                         4-55

    (b)  Scope                                           4-55

    (c)  Coverage                                        4-56

    (d)  Procedures                                      4-56


                     REGULATORY AUTHORITIES

A. Background on NPDES Regulatory Requirements

      (1) Reasons for Regulations

      To  attain program approval, the CWA requires that States

have  adequate legal authority to administer the various aspects

of the program.  Section 304(i) directs EPA to promulgate regula-

tions which establish minimum elements for State programs

including monitoring and reporting requirements, enforcement

provisions, funding, personnel, qualifications, and manpower

requirements.  The minimum  legal authorities, including regu-

lations which every NPDES program must have, are listed at 40

CFR 123.25 and are cross-referenced with .the substantive NPDES
regulations.  The minimum legal requirements for State pretreat-

ment  programs are described at 40 CFR 403.10(f)(1).

     While State provisions need not be identical to the

corresponding federal provisions, they must establish require-

ments at least as stringent as the federal program.  State

provisions may be more stringent; however, the State may not   •>-.

make one requirement more lenient as a tradeoff for making

other requirements more stringent.  Of course, States may

adopt additional requirements beyond the federal provisions as

they  see fit.

     Neither the CWA nor EPA regulations explicitly require that

a State enact regulations.  But unless a State enacts a very

specific and detailed statute, administrative regulations are


needed to clearly delineate all substantive and procedural

requirements necessary to establish minimum legal authority for

program approval.  Administrative regulations, which flesh out

program requirements, provide a State Director with guidance

and uniform procedures to implement the NPDES and pretreatment

programs, and alert permittees of the requirements and obli-

gations the program imposes upon them.  Finally, such rules

guarantee the public an opportunity to participate in the program

program development process.  This chapter discusses the regulatory

authority that States must adopt.  Of course, a State may

include all of these provisions in its statute.

     States must adopt each provision required by 40 CFR 123.25

in terms at least as stringent as those in the federal rules.

Thus, State rules which require inclusion of conditions in

permits under section 402 are not adequate unless they are

valid incorporations by reference under State law (see below).

Instead,  the State regulations must contain specific provisions.

Similarly, language such as "in accordance with CWA" does not

establish a specific standard unless it incorporates the CWA

and implementing regulations by reference.

     This chapter discusses the various provisions required to

be included in State regulations.  Several sections are designated

"optional" to indicate that States are not required to adopt

them.  However,  if States elect to adopt provisions in these

areas,  State rules must be at least as stringent as federal

requirements.  Thus,  States need not allow reduced procedural

requirements for minor modifications to permits; if they choose

to allow these, however, they can only allow them where authorized

by federal rules.  In some cases, EPA strongly recommends that

States adopt "optional" requirements to facilitate program

comprehension by the regulated community and public (e.g.,


      (2) Incorporation by Reference

      Several States have chosen to incorporate EPA regulations

by reference rather than to promulgate a separate, equivalent

set of State regulations.  While incorporation by reference may

make  it more difficult for the public and regulated community

to determine the applicable requirements, some States have

chosen incorporation by reference to ease the administrative

burdens of regulatory development.  Although EPA discourages

this  practice because of the increased difficulty in determining

requirements,  there is no federal prohibition against it.

However, many State courts have held that prospective incor-

poration by reference (automatic incorporation of future

federal regulations) is an unconstitutional delegation of

legislative authority.  Ultimately, State law determines whether

incorporation by reference of existing or future EPA regulations

is permissible (see, Chapter Three, Part B(l)(j)).

      At a miminum, an incorporation must provide sufficient

detail for EPA to determine whether all applicable State program

requirements have been included.  Of course, the Memorandum of

Agreement (MOA) and the program description must fully address

the permitting procedures which the State intends to use.  The

MOA should also describe the mechanism for keeping the incorpor-

ation up-to-date and consistent with future changes in the

federal law.          .

     (3) Attorney General Involvement

     As discussed in Chapter Three, the CWA requires the Attorney

General to certify that the State has adequate legal authority to

carry out the described State program.  This discussion of legal

authority necessarily encompasses State regulatory authority

(see, 40 CFR 123.23(a)) and the Attorney General's statement must

cite to those regulations.  State agencies developing or revising

program regulations are well advised to involve the Attorney

General's office and EPA as early in the process as possible.

Early participation by the State Attorney General and EPA will

assist the State in narrowing the issues and minimizing delays

in program approval.  Proposed regulations must be circulated

for EPA comment and, wherever possible, EPA's substantive

comments should be incorporated (see. Chapter Two, above).

     The structure of this chapter does not follow that of

Chapter III even though these rules must be cited in the Attorney

General's Statement.  Rather, we have grouped the regulations into

sections with common characteristics to assist persons developing
programs.  To a large extent, this chapter tracks the NPDES


B.  Required State Program Regulations

     (1)  NPDES-Regulations

     (a)  Program Scope and Definitions

     (i)  Definitions (40 CFR 122.2) (Optional)

     Many terms used in the regulations are unique and will be

unfamiliar to the general public.  Others have precise meanings

under the NPDES program that may be different from ordinary

usage.  The federal NPDES regulations define many of these

terms.  While State program regulations are not required to

contain these definitions, in order that these rules be easily

understood, EPA strongly recommends that State regulations

include a definitions section.  If the State elects to adopt

these definitions, in either the State statute or the regulations,

they must be consistent with the CWA and federal regulations.

Even if the State does not adopt them as rules, the State's

use of such terms in State regulations and interpretations of

those requirements must be consistent with the federal definitions

The State should consult with EPA to determine which State

and/or federal terms to define in the regulations.

     (ii)  Exceptions (40 CFR 122.3) (Optional)

     EPA exempts seven types of discharges from NPDES require-

ments.  Most of these exemptions are specifically required by

the CWA; others reflect discharges that are not considered

point sources under the Act.  State regulations may also adopt-

these exceptions, if authorized by the State's statute, unless

the State wishes to regulate these dischargers under the NPDES

system.  States may not, however, exclude any other discharges

from regulations under the NPDES program.  For example, a

State could not exempt de minimis discharges of pollutants,

since neither the CWA nor the NPDES regulations authorize such

exclusions.  The following are EPA exceptions:


  o  Sewage from vessels (this exception only applies to sewage;
      other discharges from vessels must be subject to the '
      NPDES permit program);

  o  Dredge or fill material regulated under a §404 permit;

  o  The indirect discharge of pollutants into a POTW (these
      discharges are regulated under the pretreatment program);

  o  Discharges made in compliance with the instructions of an
      on-scene coordinator pursuant to a national oil and
      hazardous substances pollution plan, or pollution by oil
      and hazardous substances regulations (see,  40 CFR 1510,
      and 33 CFR 153.10(e) );

  o  Non-point source agricultural and silvicultural activities;

  o  Irrigation return flows; and

  o  Any discharge into a privately owned treatment works
      (unless the Director requires otherwise under §122.44(m)
      - see Part B(l)(c)(iii) of this chapter).  States may
      not categorically exempt all such discharges, but must
      have authority to require contributors to such treatment
      works to obtain NPDES permits at the Director's discretion,

     (iii)  Prohibitions (40 CFR 122.4)

     State regulations must prohibit the issuance of an NPDES

permit under the following circumstances:

  o  the CWA or implementing regulations will be violated;

  o  an EPA Regional Administrator has objected to issuance;

  o  the permit conditions will not ensure compliance with
      water quality requirements of all affected States;

  o  the Secretary of the Army believes anchorage and navigation
     would be substantially impaired;

  o  the discharge is a radiological, chemical, or biological
      warfare agent or high-level radioactive waste;

  o  the discharge is inconsistent with an approved CWA §208
      area waste treatment management plan;

  o  For discharges to the territorial seas, contiguous zone,
      or oceans,  insufficient information exists to make a
      reasonable judgment whether the discharge complies
      with promulgated ocean discharge degradation guidelines
      (40 CFR Part 125, Subpart M); and


  o  Where a discharge from a new source or a new discharger
      will cause or contribute .to violation of water-quality

     Of course, States may prohibit issuance of a permit in

other circumstances.

     (iv)  Effect of Permit Issuance (40 CFR 122.5)

     States must, at a minimum, have regulations which clearly

indicate that an NPDES permit conveys no property rights or

exclusive discharge privilege to the permittee.  States may also

include a "permit as a shield" provision in State regulations.

Under federal law (CWA §402(k) and 40 CFR 122.5), if a permittee

complies with its permit, it is considered to be in compliance

with section 301, 302, 306, 307, 318, 403, and 405 of the Act

(except for toxic effluent standards under §307(a)).  A permittee

is authorized to discharge pollutants which are not limited in

the permit (assuming that the pollutant's presence was disclosed

in the permit application).  Similarly, EPA's NPDES regulations

do not allow new effluent standards, other than toxic standards

developed under section 307(a) of the CWA, to be imposed until

the permit is modified.  This shield concept forces permit writers

to draft permits that properly regulate pollutants in the permittee's

discharge and provides some measure of certainty to the regulated

community.  States may choose not to provide this shield to

dischargers (in so doing the State would be considered more

stringent than the federal program).

     (v)  Confidentiality of Business Information (40 CFR 122.7)

     The regulations must contain provisions for confidentiality

of information.  The State must ensure that the following information


cannot be claimed confidential and that it must be disclosed

upon request:

  o  Name and address of the applicant;

  o  The completed permit application and all attachments
       (although the State may allow supplemental information
      requested by the Director, but not required by the
      permit application itself, to be claimed eligible for
      confidential treatment);

  o  The NPDES permit; and

  o  Effluent data, which is broadly interpreted to include
      information related to determining applicable effluent
      limitations and toxic, pretreatment, or new source
      performance standards, and whether the discharger is in
      compliance with those limits.  For example, production
      data used to calculate permit limits and assess compliance
      with those limits may be considered effluent data (see,
      section 308(b) of the CWA and 40 CFR 2.302).

The State may deny confidential treatment to other information.

     (b)  Permit Application Requirements for All Dischargers

     (i)  Permit Applications (40 CFR 122.21)

     State regulations must require any owner or operator

proposing to discharge a pollutant from a point source to

waters of the State (other than those discharges specifically

exempted) to apply for an NPDES permit prior to commencing the

discharge.  (Since a new source may not discharge until it

receives a permit, it is recommended that States require

applications at least 180 days in advance.)  If the owner and

operator are different people, the State must require the

operator to apply, although it may require both persons to

apply.  Similarly, any discharger operating under an existing

NPDES permit has a duty to reapply for a new permit prior to

the expiration date of the existing permit.  (States may set

an earlier deadline for reapplication.)  The State regulations


must also specify that, except in the case of general permits,

the State may not issue a permit before receiving a complete

application form.  (Note: NPDES States must also have authority

to require users of a privately owned treatment works to obtain

an individual permit and submit a permit application or to be a

limited co-permittee on the treatment works permit (see, 40 CFR


     The State must require all applicants to submit the informa-

tion listed in 40 CFR 122.21(f).  This information includes:

  o  The name, address, and location of the facility (and whether
     the facility is located on Indian land);

  o  The operator's name, address, telephone number, ownership
     status and status as federal, State, private, public, or
     other entity;

  o  A listing of all permits received or applied for under
     other federal and/or State environmental programs;

  o  A brief description of the business, and up to four standard
     industrial classification (SIC) codes* .which best reflect
     the principal products or services provided by the facility;

  o  A topographic map of the area where the facility is located
     extending at least one mile beyond property boundaries
     which depicts the outline of the facility, and all known
     surface water bodies, drinking-water wells, existing and
     proposed intake and discharge structures and hazardous
     waste wells used to inject fluids within a 1 mile of the
     facility ' s.                                                •<-•

     States must submit a copy of the application form they

intend to use to obtain this information, which must at a minimum

include the same information as the federal NPDES form (Form  1).

Of course, State Agencies are free to modify EPA's NPDES application
*_/ SIC codes are developed and published by the Office of
   Management and Budget.


 forms with the State's letterhead, etc., but they may not eliminate

 required information.  (Additional information or application

 forms required of certain classes of dischargers are discussed

 below in Part B(l)(c).)

     (ii)  Signatories (40 CFR 122.22)

     Signatory requirements are intended to ensure a high

 level of responsibility within the entity applying for a permit

 or submitting a report.  The regulations must provide that all

 permit applications be signed as follows:

  Corporations - By the president, secretary, treasurer, vice-
                 president in charge of a principal business
                 function, or any other person performing a
                 similar policy-making function.  However, if
                 authority is properly delegated, a manager of
                 a facility employing more than 250 persons,
                 or having gross annual sales or expenditures
                 exceeding $25 million (in second quarter 1980
                 dollars), may also sign the application.

  Partnerships and Proprietorships - By any general partner or
                                     by the proprietor.

  Municipalities,  State,  Federal and Other Public Agencies -
                 By either a principal executive officer
                 (Regional Administrator/Town Manager) or the
                 ranking elected official (Mayor).

     Also,  all compliance monitoring reports required by the

permit or other reports/information requested by the State

agency must be signed by the person or position described

above or their duly authorized representative.  The NPDES

regulations limit  who may be named an authorized representative

 (see, 40 CFR 122.22(b)).   States must apply similar limitations.

     (iii)   Certifications (40 CFR 122.22(d))

     The regulations must require all persons signing an.appli-

cation or submitting a report or other required information


to certify the accuracy of the document."  The rules also must

specify the language to be used by the signatory.  At a minimum,

the State must require certification language equivalent to

the following:

    "I certify, under penalty of law, that this document and
    all attachments were prepared under my direction or
    supervision in accordance with a system designed to
    assure that qualified personnel properly gather and evaluate
    the information submitted.  Based on my inquiry of the
    person or persons who manage the system, or those persons
    directly responsible for gathering  the information, the
    information submitted is, to the best of my knowledge and
    belief, true, accurate, and complete.  I am aware that
    there are significant penalties for submitting false
    information, including the possibility of fine and impri-
    sonment for knowing violations."

     (iv)  Recordkeeping (40 CFR 122.21(o))

     The regulations must also require applicants to retain

all data used to prepare permit applications for at least

three years following the date the application is signed.

This recordkeeping requirement extends to supplemental infor-

mation requested by the State agency during the permit develop-

ment process.

     (c) Additional Application Information Required of
         Certain Dischargers (40 CFR Part 122 - Subpart B)

     (i) Industrial and Commercial Discharges

     Existing manufacturing, commercial, mining, and silvicultural

dischargers must also submit a State application that requires

at least the same information as federal NPDES Application

Form 2-c or, for non-process discharges, Form 2-e (proposed

October 1, 1984, 49 F.R. 38812).  At a minimum the State must

require the following information:

  o  The latitude and longitude of each outfall location;


  o  The name of the receiving water;

  o  A chart of the water flow through the facility depicting
      average intake and discharge flows which contribute to
      effluent and treatment;

  o  A description of operations or processes contributing to
      process wastewater, cooling water, and storm water runoff,
      and the treatment each receives;

  o  A description of the frequency, duration and flow rates
      of each intermittent or seasonal discharge occurrence
      (except for storm water runoff and leaks);

  o  If an applicable promulgated effluent limitation guideline
      requires production data, a reasonable measure of the
      applicant's actual production reported in the same unit
      of measurement as that in the guideline;

  o  A description of the requirements and compliance schedule
      for constructing or upgrading present treatment, if any;

  o  Quantitative and qualitative data describing the charac-
      teristics of the discharge, analyzed using the procedures
      set out in 40 CFR Part 136.  (40 CFR 122.21(g)(7) outlines
      the minimum discharge data the State must require).

  o  A list of toxic pollutants which the discharger uses or
      manufactures as an intermediate or final product or

  o  Biological toxicity tests which the applicant knows or
      has reason to believe have been conducted within the
      last three years;

  o  Identity of the contract laboratory or consulting firm
      (if any) which analyzed the discharger's effluent for
      purposes of application preparation; and

  o  Any other information which the State agency reasonably
      deems necessary.

     Certain silvicultural discharges and discharges to aqua-

cultural projects are considered point sources under the NPDES

program.  These discharges also must submit application form

2-c or the State that meets federal requirements.  State

regulations must specify criteria at least as stringent as

federal  requirements for determining which of these facilities


are point sources within the meaning of the CWA and thus subject

to NPDES permit requirements.  The federal criteria are set

out in 40 CFR 122.25 and 122.-27.

     (ii) Concentrated Animal Feeding Operations

     Concentrated animal feeding operations (feedlots) are

considered point sources under the CWA.  The State regulations

must contain criteria for designating which of these facilities

are point sources (see 40 CFR 122.23 and Part 122 Appendix B).

All point source feedlots must provide the information

required on NPDES application Form 2-b or the State's form

requiring the same minimum information, including the following:

  o  The type and number of animals in open confine-
       ment and/or housed under a roof;

  o  The number of acres used for confinement; and

  o  The design used for runoff diversion and control,
      if any, including acreage and storage capacity.

     (iii) Concentrated Aquatic Animal Production Facilities

     Concentrated aquatic animal production facilities (fish

farms)  are considered point sources under the CWA.  The State

regulations must contain criteria for determining which of

those facilities are point sources (see 40 CFR 122.24 and Part.^

122 Appendix C).  All point source fish farm facilities must

provide the following information at a minimum:

  o  The maximum daily and average monthly flow from
      each outfall;

  o  The total number of ponds, raceways, and receiving

  o  The total annual and maximum harvestable weight of each
      species of aquatic animal;, and

  o  The calender month of maximum feeding, and the total mass
      of food fed during that month.

     (iv) New Sources

     Facilities which may qualify as new sources must also

provide EPA and the State with sufficient information to deter-

mine whether the applicant is in fact a new source and,

therefore,  subject to new source performance standards.

Interested persons must be able to challenge new source deter-

minations by the permitting authority.  States are not required

to specify criteria to be used in the new source determinations,

although it is recommended that they do so (see 40 CFR 122.29(b))

In determining whether a facility is a new source, States must

use criteria equivalent to those in the federal rules.

     States also must submit copies of the application forms

new sources will be required to use.  It is recommended that

States have regulations that specify the information to be

submitted.   EPA recently proposed a revised new source form,

2-d (Oct. 1,  1984 49 F.R.  38812).  States will be required to

use this form once the final rules are promulgated.

     (v) POTW Application Requirements

     States must set application requirements for POTWs and

submit the  application form to be used.  In addition to

information on its discharge, each POTW should be required to

list the dischargers which contribute flow to its flow.

      (vi)  Storm Water Discharges (40 CFR 122.26)

      Storm water discharges are point sources under the NPDES

program.  State regulations must include storm water discharges

as point sources covered by the program.  EPA defines storm

water point sources at 40 CFR 122.26(b).  EPA recently proposed

changes to these storm water requirements (August 12, 1985

50 F.R. 32548).  Once these changes are promulgated as final

rules, States will be required to modify their regulations


      (d) Permit Conditions and Effluent Limitations

     The State's regulations must impose a variety of obligations

and duties on dischargers and must specifically require that

these be incorporated, either expressly or by reference, in

NPDES permits.  All permits must contain these minimum permit

provisions, as discussed in detail below.

      (i) Effluent Limitations (40 CFR 122.44, 125.3)

      (A) Technology-Based Effluent Limitations

     State regulations must require compliance by all dischargers

with applicable technology-based requirements within the time

frames specified in the CWA and NPDES regulations.  These in-

clude the following deadlines for point sources other than POTWs:

  o  Best practicably control technology (BPT) by July 1,

  o  Best available technology economically achievable (BAT)
      for toxic pollutants and best conventional control tech-
     nology (BCT) for conventional pollutants by July 1, 1984.

  o  BAT for nonconventional pollutants by July 1, 1987.

The regulations also must require that technology-based effluent

limitations for municipal dischargers be based on secondary

treatment and require compliance with these limitations by  .
July  1,  1977  (see, 40 CFR Part.133).  Finally, new sources  must
be required to comply with applicable new source performance

      To  implement these technology-based requirements, State
regulations must adopt and apply EPA's national effluent limita-
tions guidelines and new source performance standards  (40 CFR
Chapter  I Subchapter N) and secondary treatment information
requirements  (40 CFR Part 133).  State regulations must require
State-issued permits to incorporate, at a minimum, limits based
on these guidelines.  If an effluent limitation guideline is not
available or is inappropriate,  the State must have authority to
impose technology-based treatment requirements on a case-by-case
basis using the permitting authority's best professional judgement
(BPJ).  The requirements and methodology for establishing BPJ
limitations are set out in 40 CFR 125.3(c) and (d) (see also,
§402(a)(l) of the CWA).  The State agency also must be authorized
to use a combination of effluent guidelines and BPJ limitations
to derive permit limits where limits on pollutants not regulated
in the guidelines are necessary to control the discharge.
     When implementing these requirements, State law must ensure
that permit limits are established for each point of discharge,
and must prohibit treatment substitutes such as flow augmentation
(dilution) as a means of complying with permit limits.  State
regulations must require that the permit contain limits on
every toxic pollutant discharged at levels above BAT.  This can
be achieved through limits on each pollutant that is or. may be

discharged, or through the use of indicator pollutants.

     (B)  Water-Quality-Based Effluent Limitations

      State regulations must allow the permitting authority

to include any requirement necessary to accomplish the

following water quality objectives:

  o Achieve water quality standards established under section
     303 of the CWA;

  o Attain or maintain a specified water quality through water
     quality-related effluent limits established by EPA under
     section 302 of the CWA;

  o Conform to applicable water quality requirements under
     section 401(a) (2) of the CWA when the discharge affects
     another Stater

  o Impose compliance schedule requirements to meet other
    water-quality related requirements established under
    federal or State law;

  o Ensure consistency with the requirement of an EPA approved
     Water Quality Management Plan under section 208(b) of the
     CWA; and

  o Incorporate section 403(c) criteria for ocean discharges.
     (see, 40 CFR Part 125, Subpart D).

     (C) Toxic Effluent Standards or Prohibitions (40 CFR
         122.44(b), Part 129)

     The "permit as a shield" defense authorized by 402(k)

(see Part B(l)(a)(iv) of this chapter) is not available for
dischargers violating EPA's toxic effluent standards or pro-

hibitions.  The regulations must adopt or incorporate EPA's

toxic pollutant effluent standards or prohibitions promulgated

under section 307(a) of the CWA (40 CFR Part 129).  Violation

of a duly promulgated toxic effluent limitation is an enforceable

violation under the law, even before the State modifies the

permit to include them.  The State agency must have authority


to require compliance with these standards where the NPDES

permit has not been modified to incorporate them.

     (D) Compliance Schedules (40 CFR 122.47)

     State regulations must provide authority to include sche-

dules of compliance in NPDES permits leading to compliance

with applicable effluent limits.  New sources, new dischargers,

and recommencing discharges may not be issued compliance sche-

dules except in limited circumstances.  Compliance schedules

must require the permittee to comply as soon as possible, but

not later than the applicable statutory deadline.

     (ii) Calculation of Effluent Limitations (40 CFR 122.45,

     (A)  Production-Based Effluent Limitations

     State regulations must contain provisions for calculating

effluent limits where the applicable effluent limitation

guidelines are production-based.  Permit limits for POTWs may

be established using the treatment works design flow, although

actual operation data may be substituted.  However, design

capacity may not be used for non-municipal dischargers subject

to production-based effluent limitation guidelines.  Instead,

permit limits must be based on a reasonable measure of actual

production.  Generally, this should be a long-term average of

the facility's production.  Note that variable limits in permits

(i.e.,  tiered limits) allowed if actual production is expected

to vary during the permit term,  although the State must include

restrictions on the frequency and degree of variations and

must require notice from the discharger prior to changing to

different effluent limits.


     (B) Limitations on Metals

     The State regulations must specify the basis for calculating

effluent limitations for metals.  Generally, EPA must establish

limitations for metals in terms of total recoverable metals.

Exceptions to the norm are listed in 40 CFR 122.45(c), and

include wherever the applicable effluent guideline regulate a

different form of the metal.  Most promulgated guidelines

regulate total metals rather than total recoverable metals.

State permits should specify the form of the metal upon which

the limits are based.

     (C) Limitations on Continuous Dischargers

     The regulations must require that effluent limitations

for non-municipal dischargers that discharge continuously

be expressed in terms of "maximum daily" and "average monthly"

limits.  Effluent limitations pertaining to POTWs with

continuous discharges are expressed as "average weekly" and

"average monthly" limits, although States may also include

other terms, such as daily maximum limits.

     (D) Limitations on Non-Continuous Dischargers

     Effluent limits for facilities with non-continuous discharges
shall contain limitations which correspond to the frequency of

the discharge.  They must include such measures as are necessa.ry

and ensure that the appropriate effluent guidelines and water

quality standards are met.

     (E) Limits on Mass

     State regulations must require that, except for the fol-


 lowing situations, effluent limits be expressed in terms of

 ma s s:

  o Limits involving pH, temperature, radiation or other
    pollutants which cannot appropriately be expressed by

  o The applicable effluent guideline is expressed in another
    unit of measurement; or

  o The permit limitations are established on a case-by-case
    (BPJ) basis and expressions in terms of mass are infeasible
    because the mass of the pollutant to be discharged is
    unrelated to a measure of the facility's operation.

Of course, States are free to develop permit conditions which

are expressed both in mass and concentration measures.

     (F) Limiting Pollutants in Intake Water

     The regulations may allow an applicant to request that

its effluent limitations be adjusted to reflect pollutants

present in its intake water.  In order to be eligible, the

applicant must show either (i) the applicable effluent guidelines

specifically authorize calculations on a net rather than gross

basis;  or (ii) its treatment system would enable the facility

to comply with its permit limits in the absence of pollutants

in the intake water.  The regulations may not allow the granting

of credit for intake water pollutants in excess of the pollutant's

level in the facility's influent.   Credit may only be granted

to the extent the permittee needs the credit to meet its permit

limits.   Credit for generic pollutants is only allowed if the

pollutants in the intake and effluent are similar.  The intake

water and discharge must involve the same water body, although

the Director may modify this requirement (see 40 CFR 122.45(g)).

     (G) Internal Waste Stream Limits •

     State regulations must authorize permit writers to impose

effluent limitations or standards and monitoring requirements

on internal waste streams when it is impracticable or infeasible

tc establish permit limitations at the point of discharge.

The fact sheet for the draft permit must set forth the justifying

circumstances whenever internal limits are required.  (See 40

CFR 122.45(h) and 124.56.)

     (H) Adjustment For Well Disposal, Land Application,  or.
         Discharge to POTWs

     The discharge of process wastewater to wells, POTWs, or

by land application is not treatment within the meaning of the

CWA.   Therefore,  the regulations must require the State to

adjust mass-based effluent limitations to reflect a reduction

in effluent resulting from partial disposal through these

methods.  Under the NPDES regulations, this adjustment generally

is a flow-proportional reduction in effluent limits based upon

the diverted flow.  (See, 40 CFR 122.50.)

     (iii)  Boilerplate Conditions (40 CFR 122.41)

     EPA's regulations (40 CFR 122.41) require States to estab-

lish the duties and obligations listed below as boilerplate

conditions in all NPDES permits.  These provisions must be

specified in State regulations and must be required to be

included in any permit.

  o Duty to comply with the permit conditions and §307(a)
     toxic standards or prohibitions (even if the permit is
     not modified to incorporate the toxic limit);

  o Duty to properly operate and maintain the treatment facility;

  o Duty to reapply prior to expiration of the permit;

  o Duty to mitigate any noncompliance with the permit;

  o Statement that the permit does not convey property rights;

  o Statement that the permit may be modified, revoked and
     reissued or terminated for cause;

  o Duty to allow the State agency or its representatives to
     enter and inspect the permittee's premises,  monitor or
     sample effluent, and examine and copy records;

  o Caveat that a discharger may not claim the need to halt or
     reduce activity in order to maintain compliance with the
     permit as a defense in an enforcement action;

  o Additional conditions which the Secretary of the Army
     considers necessary to protect navigation and anchorage;

  o Conditions requiring vessels transporting, handling, or
      storing pollutants to comply with any applicable Coast
      Guard regulations; and

  o Conditions specifying that the permittee is subject to the
      civil and criminal enforcement remedies of the CWA for
      any permit violation.  (The State should specify the appli-
      cable provisions of the CWA.  It is recommended that
      States also cite to equivalent State statutory provisions.)

     (A)  Additional Conditions for POTWs (40 CFR 122.42(b))

     The State's regulations must contain authority to include

the following conditions in POTW NPDES permits:

  o Duty to identify any significant indirect sources which
     may be subject to categorical pretreatment standards;

  o The permit must incorporate the requirements of a local
     pretreatment program (40 CFR 403), once it has been
     approved, including reporting requirements (40 CFR

  o Any EPA-imposed conditions or restrictions on grant money
     (CWA sections 201 and 204) which are reasonably necessary
     to achieve effluent limitations (40 CFR 122.44(n)); and

  o Requirements under section 405 of the CWA and any other
     State or local regulations on the use or disposal of
     sewage sludge.


     (B)   Up_set and Bypass

     State regulations must require a prohibition on bypass to

be included as a condition In all State permits.  Bypass .must

be prohibited, even when in compliance with permit limits

(except for essential maintenance).  States may excuse bypasses

that exceed permit limits only if the bypass was necessary to

prevent severe property damage or loss of life and there were

no feasible alternatives to the bypass.  If States excuse these

bypasses,  they must require reporting equivalent to that required

in the federal rules.  (See 40 CFR 122.41(m).)

     An upset is a temporary condition beyond the control of

the permittee that causes the permit limits to be violated.

State regulations may provide upset conditions in permits that

allow permittees to claim upset as an affirmative defense to

enforcement actions against a violation of technology-based

effluent  limits.  If the State allows upsets, the State rules

also must specify the pre-conditions to establishing the defense

and require these to be incorporated into permits (e.g.,

notice, demonstration of cause, mitigation).  These must be at

least as  stringent as the federal requirements.  (See 40 CFR


     (C)   Other Conditions

     State regulations must provide authority to include best

management practices (BMPs) in NPDES permits.  BMPs may be

used to control toxic pollutant discharges from ancillary

industrial activities.  States also must have authority to

impose these conditions where numerical limitations are infeasible


or when necessary to carry out the requirement of the CWA.-

(See 40 CFR 122.44(k).)

     State regulations must also provide authority to include

conditions in permits for privately owned treatment works

affecting a user of the system.  The user must be included as

a limited co-permittee.  As discussed above (Part B(l)(b)),

the State also must have authority to require the users of the

privately owned treatment works to obtain individual NPDES

permits (see 40 CFR 122.44(m)).

     (iv) Reporting and Monitoring Requirements (40 CFR

     State regulations must contain provisions for reporting

and monitoring.  The minimum requirements to be included in

State rules are described below.

     (A)  Monitoring Conditions

     State regulations must require that all permits contain

requirements for the permittee to monitor its discharge.  The

State must have authority to require monitoring that is

representative of the discharge.

  o Requirements concerning the proper use,  maintenance and
     application of monitoring equipment (see 122.48(a));

  o Required monitoring activities (type, intervals, frequency,
     and test procedures to yield representative results of
     the discharger's activity.  Monitoring frequency may be
     no less than annually (see, 40 CFR 122.41));

  o Requirements to monitor:

    - The mass (or other specified measurement) for each pol-
       lutant limited in the permit;

    - The volume of effluent discharged from each outfall;


    - Any other appropriate measurement (40 CFR 122.44(1));.

  o Duty to provide relevant information the State agency
     requires, within a reasonable time;

  o Duty to allow the State agency to enter and inspect the
     permittee's premises, including monitoring or sampling
     effluent, and examine and copy records; and

  o Duty to retain monitoring data for at least three years.

States must also have authority in regulations to impose

monitoring on internal waste streams,  and where necessary to

determine eligibility for credits based upon intake water

pollutants.   (See 40 CFR 122.44(i)(1)(iii ) .  )

     (B)   Reporting Requirements

     As discussed above, State regulations must require that

all reports submitted pursuant to the NPDES permit be signed

and certified by a person described in Part B(l)(b)(ii) of this

chapter or by a duly authorized representative of that person.

A person or position may only be authorized if he/it has

responsibility for the overall operation of the treatment

facility, or overall responsibility for environmental matters

of the company, partnership, or agency.

     State regulations must also require that the following
reporting conditions be included in NPDES permits:

  o Duty to report monitoring data as specified, by the permit,
     but in no case less frequently than once a year;

  •o Monitoring data must be reported on a Discharge Monitoring
     Report (DMR) (EPA's national reporting form);

  o Duty to report progress with compliance schedules within
     14 days after each scheduled milestone;

  o Duty to report any anticipated noncompliance with permit

  o Duty to give the . State .Agency advance notice of. any planned
      changes which nay result .in noncompliance;

  o Duty to report any noncompliance which may endanger public
      health or the environment within 24 hours and to follow
      up such reports with written notice within 5 days.   Such
      noncompliance includes unanticipated bypasses,* upsets,
      or violations of specified maximum daily discharge limi-
      tations .

      State regulations must also require permits issued to

existing manufacturing, commerical,  mining, and silvicultural

facilities to include a duty to notify the State agency of new

or increased toxic pollutant discharges not expressly regulated

by the permit.  The State may establish threshold' notification

levels that differ from EPA's levels as long as the levels are

at least as stringent as those set out in the federal regulations

at 40 CFR 122.42U) ) .

      In addition, States must require POTWs to notify the State

agency of the introdu-ction of pollutants from any indirect

sources which would be required to obtain an N'PDES permit if

they discharged directly.  POTWs also must be required to notify

the State of any new or increased discharge of pollutants to

the POTW,  including changes in volume or character of pollutants.

      (e) Other Permit Program Requirements

      (i) Duration (40 CFR 122.46)

     State regulations must specify the duration of NPDES

permits.  States may not allow permits to be written for

periods longer than five years.  States must have authority

to issue permits for shorter periods where appropriate.
  V A permittee may not intentionally bypass its treatment
  system unless the bypass was unavoidable to prevent  loss
  of life,  personal injury or severe property damage.


States nay not issue permits that extend past a statutory

deadline unless those permits -contain conditions implementing

the applicable deadline.    '   .

      (ii) Continuation  (40 CFR'122.6) (Optional)

     Under the federal  regulations (and Administrative Procedure

Act), the permit may be continued in effect beyond its expiration

date  if the permittee has filed a timely and complete application

for renewal prior to expiration of the permit.  States are not

required to provide for continuation.  However, if States

elect to continue permits beyond their term, they must specify

the requirements for continuation in regulations.  These rules

must be at least as stringent as federal requirements (e.g.,

may not allow continuation except where the applicant has filed.

a timely and complete renewal application).

      (iii) Anti-Backsliding  (40 CFR  122.44(1))

     State regulations  must prohibit the reissuance of a permit.

with  less stringent limitations, standards, or  conditions than

those in the previous permit except where cause exists to modify

the permit (see Part B(l)(h) of this chapter).  This provision

applies to permits based upon BPJ as well as guidelines or
water quality standards.

      (f) Variances From CWA Requirements (40 CFR 122.21, 124.62,
         Part 125 ) (Optional)

     The CWA and NPDES  regulations authorize several variances
to the NPDES requirements.  N'PDES States are not required to

allow dischargers to be granted any or all of these variances.

However, if a State chooses to authorize variances, it must


have regulatory requirements and procedures equivalent to those

required under federal law..' States which do not adopt any or

some of these variance, provisions should make an affirmative

statement to that effect in the program description.

     States may not grant all of the variances listed below.

Certain variances may only be granted by EPA; States opting to

allow these variances may only deny or recommend approval to

EPA.  (The discussion below identifies which party may

grant each variance.) If a State plans to allow its dischargers

to obtain these variances, it must establish procedures for

reviewing the requests and incorporating the approved variances

into State permits.

     (i)  Non-POTW Variances

     (A)  Delay in POTW Construction (§301(i)(2))

     This variance is. available to a discharger that intends

to connect to.a POTW upon completion of the treatment works'

construction.   The request must have been filed by 6/2G/78, or

180 days  after the POTW files for a similar extension due to

unavoidable construction delays, whichever is later, but in

any event no later than 12/25/78.  The State may grant such

variances,  which extend the compliance deadlines for BCT

and BAT.

     (B)  Innovative Technology  (§301(X))

     The  State may extend the statutory BCT and BAT compliance

deadlines where the discharger intends to use "innovative

treatment technology."  The proposed technology must have the


potential for industry-wide application and produce either a

significantly greater effluent reduction than would be achieved

by BAT or achieve the same level of pollution reduction as

BAT but at a significantly lower cost.  A §301(k) request must

be made before the end of the public comment period for the

facility's N'PDES permit and must demonstrate how the requirements

of 40 CFR Part 125, Subpart C, and 40 CFR 124.13 have been

met.  State regulations may not allow compliance extentions

beyond July 1, 1987.

     (C) Thermal Discharge Variances (§316(a))

     A request for a thermal variance must be filed with the

permit application unless thermal effluent limitation guidelines

have been established or the limitations are based on water

quality standards.  Where these latter circumstances are

present, the request may be filed at any time before the close

of the public comment period for the facility's NPDES permit.

     (D) Fundamentally Different Factors (FDF)  (40 CFR Part
         125,Subpart D)

     This variance allows a discharger which is fundamentally

different from those facilities considered by EPA during the

development of an otherwise applicable national effluent limita-

tion guideline to request different effluent limitations.  An

FDF request must be made by the close of the public comment

period for the facility's NPDES permit.  The applicant may be

any interested party and, as part of the request, must demonstrate

how the requirements of 40 CFR Part 125, Subpart D, and 40

CFR 124.13 have been met.  An FDF determination may result in


either more or less stringent effluent limits than those other-

wise imposed under a guideline.

     FDF requests for less stringent limitations may only be

approved where compliance with effluent limitations guidelines

would result in a removal cost wholly disproportionate to the

removal cost considered during the guideline's development or

where imposition of the guidelines would result in a fundamentally

more adverse non-water quality environmental impact than

those impacts considered during development of the guideline.

In no case may the alternati've limitations requested be less

stringent than is justified by the demonstrated fundamental

difference.  In addition, the alternative limitations must

comply with sections 208(e) and 301(b)(1)(C) of the Act, including

water quality standards or other more stringent State regulations.

The factors which may qualify a facility as fundamentally

different are set out in 40 CFR Part 125, Subpart D and must

be specified in State regulations.  Only EPA may grant FDF


     (E) Variances for Nonconventional Pollutants (CWA §301(c)
         and (g))

     The §301(c) variance is available for dischargers who can

show that the requested modification (to BAT guidelines for

nonconventional pollutants) represents the maximum use of

technology within the economic capability of the owner and

will result in reasonable further progress toward eliminating

the discharge of pollutants.

     Under section 301(g), a discharger may request a variance


from BAT guidelines for nonconventional pollutants where it

has complied with BPT limitations, and can demonstrate that

the requested modification will not create an additional burden

for other dischargers or interfere with aquatic life or human

health in the vicinity of the discharge.

     Applicants for 301(c) and 301(g) variances must have

submitted an initial request to both the State Agency and EPA

no later than 9/25/78 where the guideline in question was

promulgated before 12/27/77; or within 270 days of a guideline's

promulgation after 12/27/77.  A final request, demonstrating

how the requirements of 40 CFR Part 125, Subparts E and F,

and 40 CFR 124.13 have been met, must be submitted no later

than the close of the public comment period for the facility's

NPDES permit.  Only EPA may grant these variances.

     (F) Adjustments to Water-Quality Standards (§302(b))

     When EPA develops permit limitations based upon water-

quality criteria which are more stringent than the applicable

technology-based limitations pursuant to section 302 of the

CWA,  a permittee may request an adjustment if he can show that

there is no reasonable relationship between the economic and

social costs and the benefits to be obtained form the more

stringent effluent limitation.  This adjustment is not really a

variance, but is actually part of EPA's standard-setting process

State regulations should require requests for adjustments of

water-quality related effluent limitations to be supported by

adequate justification, and filed no later than the close of


public comment period for the facility's NPDES permit.

      (ii) POTW Variances

      (A) Delay in POTW Construction (§301(i))

      States may grant POTWs a compliance extension under section

301(i) of the CWA.  That section allows a POTW to request an

extension of the municipal compliance deadline because of a

delay in funding for construction.  Such a request must have

been  filed by 6/26/78.  Compliance with secondary treatment or

water quality-based effluent limitations may not be extended

beyond July 1, 1988.

      (B) Marine Discharges (§301(h))

     A POTW discharging to the territorial seas may request

modification to otherwise applicable secondary treatment

requirements in accordance with 40 CFR Part 125, Subpart G.

Only EPA may grant these variances.

      (C) Adjustments to Water Quality Standards (§302(b))

     POTWs may also request adjustments to water-quality based

effluent limitations established by EPA pursuant to §302.

The requirements and procedures are the same as for non-POTW

dischargers (see above).

      (g) Procedures for Permit Applications, Permit Issuance
         and Public Participation

      (i) Processing Permit Applications (40 CFR 124.3)

     In order to receive program approval, the State must have

regulations that require public involvement in the permit issuance

process.  The State Agency must not commence processing a


permit application until the applicant has fully satisfied the

application requirements discussed in Part B(l)(b) of this


     (ii) Draft Permit Development (40 CFR 124.6)

     The State Agency must prepare either a notice of intent

to deny the application, or a draft permit for every permit

application it receives (a notice of intent to deny is a type

of draft permit).  Causes for permit denial are discussed

at Part B(l)(h) of this chapter.  Draft permits must also be

prepared whenever the permit is modified, revoked and reissued,

or terminated.  A draft permit must include all of the following


  o The boilerplate conditions set out in section B(l)(d)

  o Effluent limitations calculated and established from the
     requirements set out in section B(l)(d) above; and

  o All other appropriate provisions including compliance
     schedules and monitoring and reporting requirements.

     (iii) Fact Sheet Development (40 CFR 124.8, 124.56)

     State regulations must require that a fact sheet be prepared

for permits issued to major dischargers, as well as certain
other discharges as specified in 40 CFR 124.8(a).  The purpose

of the fact sheet is to explain the basis for any permit condi-

tion and thus allow meaningful public comments on the draft

permit.  Accordingly, the fact sheet must set out the following

significant factual, legal, methodological, and policy questions

considered in preparing the draft permit:


  o A brief description of the type of facility or activity
     being permitted;.

  o The type and quantity of wastes or pollutants to be dis-

  o A summary of the rationale for the permit limitations
     including an explanation of their basis and why BPJ limits
     or limits on toxic pollutants, internal waste streams, or
     indicator pollutants are applicable;

  o Reasons supporting or contravening a variance request
     including all calculations used; and

  o A description of the procedures for reaching a final decision
     including opportunity for public participation and a
     person to be contacted if more information is desired.

     (iv) Public Notice and Comment Procedures (40 CFR 124.10,
          124.11, 124.12)

     The regulations must require that every fact sheet and

draft permit be publicly noticed.  The public notice must

identify the name and address of the processing office, the

name and address of the applicant, a brief description of the

business conducted at the facility, a description of the

general location of each outfall, and a description of the

procedures for submitting comments.  The notice must also

provide for no less than a 30-day public comment period during

which any interested person may submit written comments and

request a public hearing.  Subsequent notices (e.g., a notice

announcing the scheduling of a public hearing,  which must be

issued at least 30 days prior to the hearing) must reference

all previous notices relating to the permit.  Finally, where

the notice is for a public hearing, the notice must designate

the date,  time, and place of the hearing and specify its

nature and purpose.

    The State's regulations must specify that public comments.
will be considered before making a final decision; that signi-
ficant comments will be responded to in writing and made
available to the public; and that any provisions in the final
permit which differ from the proposed permit will be noted and
explained in the written response to comments.

     (v) Distribution of Notice (40 CFR 124.10(c), (e))
     States must specify how and to whom the public notice
will be disseminated.  State rules must assure that all notices
will be mailed to the applicant, the U.S. Corps of Engineers,
the U.S. Fish and Wildlife Service, the National Marine
Fisheries Service and any other interested federal or State
agencies with jurisdiction over wildlife, natural resources,
coastal zone planning, or historic preservation.  The notice
should also be sent to all persons on the" State's general
mailing list, and any unit of local government having juris-
diction over the geographic area where the discharge will
occur.   In addition, notices for major facilities or general
permits must be published in the daily or weekly newspapers
within the area affected by the facility or permit.  The
regulations may also require notice by other means constituting^
legal notice under State law.

     Finally, the regulations must require that copies of the
permit application and draft permit (if any) be mailed to the
applicant and interested persons, including local, State and
federal agencies.  See 40 CFR 124.10(c)(1)(i-iv) for a complete
list of persons to be mailed these documents.  Other persons

on the mailing list need only be sent the public notice

unless they request additional information.

      (h)  Transferring/ Modifying, Revoking and Reissuing,
          and Terminating Permits

      (i) Transfers (40 CFR 122.61)

      State program regulations must restrict transfer of

NPDES permits and corresponding responsibilities upon change

in ownership to the following two methods:

  o The permit may be revoked and reissued, or modified to
      identify the new permittee using the modification
     procedures outlined below; or

  o The permit may be automatically transfered if the existing
     permittee notifies the Director at least thirty (30)
     days in advance of the proposed transfer date, and
     produces a written agreement between the existing and
     new permittees containing a specific date for transfer
     of permit responsibilities,  coverage, and liability;
     and the State Agency agrees.*

      (ii) Modification (40 CFR 122.62, 124.5)

     The State regulations must contain procedures and standards

regarding permit modification.  Unless the change is a minor

modification under 40 CFR 122.63 (see below), the State

agency must prepare a draft permit for public comment.  See,

40 CFR 122.62.  The State need not prepare a draft permit

where the State denies the request for modification or revocat-

ion and reissuance, but need only provide notice to the

person requesting the change.
V The automatic transfer is effective only if the Director
does not notify the existing and proposed permittees
of his intent to modify or revoke and reissue the permit
(see 40 CFR 122.61).             ^

     EPA's regulations limit the causes for permit modification.

The State may adopt any or.all of these causes as it

However, NPDES States may not create additional causes or

justifications for modification, nor may they establish a

general provision authorizing modification "for cause."  State

rules must specify the applicable causes for permit modification.

EPA's causes for NPDES permit modifications (or,  where the

permittee agrees, for revocation and reissuance)  are limited

to the following:

  o Material and substantial alterations to the facility;

  o New information not available at the time of permit issuance
     that would justify different conditions;

  o New regulations or judicial decisions revising a regulation
     on which the permit was based.*

  o To incorporate an approved variance request;

  o To incorporate a section 307(a) toxic effluent standard or

  o When required by a reopener condition in the permit;

  o When an eligible permittee requests effluent limitations
     on a "net basis", or where the discharger loses its
     eligibility for net limitations;

  o As necessary to require development of or incorporate
     conditions of an approved local pretreatment program;

  o Where the permittee demonstrates that the operation and
     maintenance cost of complying with BPJ effluent limitations
     is totally disproportionate from the operation and maintenance
     costs considered in the development of a subsequently
     promulgated effluent limitations guideline;

  o To correct technical mistakes or mistaken interpretations
     of law made in determining permit conditions;
_*_/ Note that the permittee must request such modification
within 90 days of publication of EPA's revisions in
the Federal Register or of the judicial decision.


  o When the discharger has installed treatment technology
     pursuant to a BPJ permit  limitation, and has properly
     operated and maintained the facility, but has nevertheless
     been unable to achieve those  limits, the permit may be
     modified to reflect the levels of pollutant control actually
     achieved, but in no case  may  the modified limits be less
     stringent than required by a  subsequently promulgated
     effluent guideline;

  o Upon failure of the permitting State to notify another
     State whose waters may be affected by a discharge from
     the permitting State pursuant to section 402(b);

  o When the level of discharge of a pollutant, not limited by
     the permit, exceeds the level which can be achieved by
     the appropriate technology-based treatment requirements.

  o To establish a "notification level" as provided in section
     B(l)(d), above.

  o A compliance schedule may be modified when the Director
     believe good cause exists, however, in no case may an
     NPDES compliance schedule be modified to extend beyond an
     applicable CWA statutory  deadline.

     (iii) Causes for Minor Modification (40 CFR 122.63) (Optional)

     In limited circumstances, States may modify a permit

without public notice and comment,  with the permittee's consent.

However, these modifications are limited to minor changes in

the permit conditions, such as correcting typographical errors

or increasing monitoring frequency (although not decreasing).

States may not adopt any causes for minor modification other

than those listed in 40 CFR 122.63.  However, States are not

required to allow minor modifications.

     (iv) Causes for Modification/Revocation and Reissuance
          (40 CFR 122.62(bO)

     Revocation and reissuance is similar to permit modification,

but involves reopening the entire permit rather than just the

provision intended to be modified.   A permit may be reissued

with a new 5-year permit term, unlike a modification which may

not change the permit duration.  Revocation and reissuance

follows the same process that is used for modification..

     The State's regulations may allow permit modification,

or revocation and reissuance, where cause for termination

exists (as outlined below), but the State agency determines

that modification or revocation and reissuance is more appro-

priate.  In addition, a permit may be modified or revoked and

reissued where the State Agency receives notice of a proposed

transfer of permit responsibility as discussed under "Permit

Transfers" above.
     (v) Causes for Termination/Renewal Denial (40 CFR 122.64,
     State regulations may specify any number of causes for

terminating permits or denying renewal.  However, the regulations

must allow the State Director to terminate a permit or deny a

renewal application for at least the following causes:

  o Failure to comply with any of the permit conditions;

  o Failure to disclose all relevant information on a permit
    application or other misrepresention of any relevant facts
    at any time;                                             •*••

  o The facility or activity presents a danger to human health
    or the environment; or

  o A change occurs in the discharger's circumstances requiring
    a temporary or permanent reduction or elimination of the
    pollutants controlled by the permit.

     If the Director tentatively decides to terminate a permit,

the regulations must require issuance of a notice of intent


to terminate using the same procedures as those used for

proposing draft permits  (a determination to terminate a permit

or deny renewal constitutes a type of draft permit; se e,  Part

B(l)(g) of this chapter).

     (i) Enforcement and Penalties For Permit Noncompliance
         (40 CFR 123.27)

     Enforcement remedies must be specified in the State's

statutes. . Where authorized by State law, States may find it

helpful to outline these provisions in the regulations.  (As

noted in Part B(l)(d)(i) of this chapter, these enforcement

remedies should also be referenced in each permit.) The

required enforcement authority is discussed in Chapter III.

     The State program regulations must contain procedures for

public participation in enforcement actions through either of

the following methods:

  (1) Allowing interested citizens the right to intervene in any
      civil or administrative actions as a matter of right; or

  (2)(a)  Not opposing interested citizen intervention where
         permissive intervention is provided under a State
         statute or regulation;

     (b)  Investigating and responding,  in writing, to all
         citizen reports of violations; and

     .(c)  Providing a 30 day public notice and comment period
         on any proposed enforcement settlements.

Option 2 is only available in States that allow permissive


     (j)  Incorporation of EPA Test Procedure Guidelines
         (40 CFR 122.21, 122.44, 403.12)

    Whenever a permit requires a pollutant to be sampled and

analyzed,  the State regulations must require the permittee to

use the EPA testing procedures set out in 40 CFR Part 136.  It

is recognized that these guidelines will not address every

situation.  Therefore, approval of alternative testing procedures

may be sought from the EPA'Regional Administrator, through the

State agency.  The request will be forwarded to EPA's Environ-

mental Monitoring and Support Laboratory in Cincinnati, Ohio

for evaluation and a recommendation on the request.

(2)  Pretreatment Requirements

     State NPDES programs must include a pretreatment program

to regulate indirect dischargers.  In addition, all existing

NPDES programs must be modified to include authority over such


     EPA rules require State NPDES programs to have regulations

in effect at the time of program approval.  This rule generally

applies to State pretreatment well (see, 40 CFR

403.10 (g)(l)(i)).  However, EPA has created a limited exception

to this requirement for States requesting program modifications

to add the pretreatment program (see, 40 CFR 403.10(g)(iii)).

There are two prerequisites to exercising this option.  First,

the State must have very specific statutory authority that

meets EPA's statutory and regulatory criteria  (the statutory
criteria are discussed in Chapter III, Part B(2); the regulatory

criteria are set out below).  Thus, the statute must be more

detailed than would normally be required for State program

statutory authority (containing similar detail to that which

regulations would be required to contain), and it must be

self-implementing, that is,  capable of being enforced directly

without the need of administrative regulations.


     Second,-the program description must contain a detailed

description  of the procedures the State intends to use to

administer the program (see, 40 CFR 403.10(f)).  The Attorney

General must also assure EPA that the State agency has a valid

legal basis  to enforce each of these procedures despite the

absence of implementing regulations and without the need for

any additional steps, such as issuing an order containing the

applicable limits.  Obviously, States are not likely to have a

detailed statute which satisfies this "self-implementing"

requirement.  Therefore, most States are expected to promulgate

regulations.  The regulations required for pretreatment programs


     (a) Definitions (40 CFR 403.3)

     Many of the terms used in the pretreatment regulations

will be unfamiliar to the regulated community and the public.

In order to  eliminate any ambiguity, the State regulations

should define terms that may be unclear.  These definitions

must be consistent with the definitions in 40 CFR 403.3.

While the State need not adopt all of the definitions in

that section, EPA requires the following terms be defined:

Pass-through, interference, industrial user, new source, pre-

treatment, pretreatment standards, and pretreatment requirements

However, the State's use of the other terms must be consistent

with federal rules.  States are strongly encouraged to adopt

all of the definitions in 40 CFR 403.3.

     (b) Prohibited Discharges, Local Limits,  and EPA
         Categorical Pretreatment Standards
     The State must adopt regulations which make pretreatment

standards directly applicable to indirect dischargers and .

enforceable by the State, even where the POTW administers an

approved local program.  These include national categorical

pretreatment standards, prohibited discharge standards and

local limits (see below).  State regulations that apply

pretreatment limitations for indirect dischargers through the

POTWs NPDES permit are unacceptable unless the State statute

specifically requires indirect dischargers to comply with such

limitations, thus providing dischargers with notice of where to

find applicable limits.  The .State must have authority to

enforce pretreatment standards and requirements without any

intermediary action (e.g.,  State regulations which require

the issuance of an order, and only allow enforcement for viola-

tions of the order rather than the pretreatment requirement

itself, are not consistent with EPA's requirements).  States

can, of course, elect to implement the pretreatment program

through permits to all indirect dischargers.

     (i) Prohibited Discharges (40 CFR 403.5)

     State pretreatment regulations must include a general   -^

prohibition against discharges of pollutants which may pass

through a POTW with less than adequate treatment, or which may

interfere with the operation of the POTW.  In addition, the

State rules must contain specific discharge prohibitions,

consistent with 40 CFR 403.5(b), against pollutants with

the  following characteristics:

  o  Inflammable substances;

  o  Corrosive substances;

  o  Viscous or dense substances which could block or interfere
      with the functions of the POTW;

  o  Heat (exceeding 40° C or 104° F) sufficient to inhibit
      the biological treatment of a POTW; and

  o  Slug loads.

     (ii) Local Limits  (40 CFR 403.5(c))

     A POTW must be prepared to develop local limitations to

control the introduction of pollutants to its treatment system.

States must require POTWs developing local programs to establish,

after notice and opportunity for public comment, specific

numeric limits to implement the general and specific prohibited

discharges (see above).  Other POTWs must be required to

develop and enforce local limits when they have experienced

problems with pollutant pass-through or interference, and

such problems are likely to recur.  Local limitations must be

enforceable by the State and EPA as well as the POTW.

     (iii) National Pretreatment Standards (40 CFR Chapter I,
           Subchapter N)

     States must adopt regulations that include the categorical

pretreatment standards  (promulgated in 40 CFR Chapter I,

Subchapter N).  These State rules must be made directly applicable

to indirect dischargers.

     (iv) Pretreatment Standards Implementation (40 CFR 403.6)

     State regulations must contain provisions for implementing

pretreatment standards.  For example, the procedure for deter-


mining effluent limitations for facilities that combine waste-

streams prior to treatment must be set out.  A formula equivalent

to EPA's combined wastestream formula is acceptable as would

be a flow-weighted average approach,  so long as it is at least

as stringent as the formula.  The State must also prohibit the

use of dilution as a full or partial substitute for treatment.

     State rules must allow indirect dischargers to request

category determinations where the application of a categorical

standard to the facility is uncertain or questioned;   These

procedures must include an opportunity to appeal any State

categorical determination to the EPA Regional Administrator.

A State's categorical determination may not be appealable

under State law unless the Regional Administrator retains.the

right to make a final determination after all State court

decisions are completed.

     (c) Industrial Users Reporting Requirements (40 CFR 403.12)

     (i) Information required

     State rules must require reports from industrial users.

At a minimum, the following reports must be required:

  o  Baseline monitoring reports are required within 180 days
     of promulgation of an applicable categorical standard.
     This report should contain the following items:

        Name and address of the discharger (owners and operators);

        List of all environmentally related permits held by
        the discharger;

        A brief description of the facility's operations,
        including the average rate of production and a flow
        system diagram;

        Measurements of the average and maximum daily process
        flow'  (gallons per day).  Flow measurements for other
        waste streams are required where application of a
        combined wastestream formula may be appropriate;

        Description of the nature and concentration (or
        mass) of each pollutant in a regulated process.  The
        State must require composite sampling (unless infeasible,
        in which case grab samples are allowed); and

     -  A compliance schedule based upon the shortest time
        necessary to bring the facility into compliance with
        pretreatment requirements.  The schedule may not
        extend beyond the compliance date in an applicable
        categorical standard.

  o  Compliance schedule reports must be submitted for each
     milestone in the compliance schedule;

  o  Report of compliance with categorical standards.   The
     State must require submission of these compliance reports
     at least every six months (June and December).  These
     reports must contain information similar to the baseline
     monitoring report, noted above; and

  o  Slug loading report.  Industrial users must be required
     to immediately notify the POTW of any slug loading
     which could interfere with the treatment works' functions.

States and POTWs may require reports in addition to those

described above.  They may also increase the frequency of

reports or require additional information.

     (ii) Monitoring

     State regulations must require all monitoring and analysis

to be conducted in accordance with EPA's standard test methods

in 40 CFR Part 136.  In the absence of approved test methods,

industrial users may use other sampling and analytical techniques

if approved by the Regional Administrator (see,  B(l)(j), above).

States may specify monitoring requirements on a case-by-case

basis.   States must require adequate monitoring of all indirect


      (iii) Signatories

     "States must have regulations that establish signatory

requirements for all reports.  Reports from POTWs must be

signed by the principal executive officer, ranking elected

official, or other duly authorized employee responsible for

overall POTW operations.

     States must require that reports from indirect dischargers

be signed by a principal executive officer (no less than

vice-president in authority) or, for partnerships or sole

proprietorships, by a general partner or proprietor.  In

either case, the State may allow the responsible signatory to

authorize a representative, responsible for overall operation

of the facility originating the indirect discharge, to sign

the reports.

     (iv) Confidentiality  (40 CFR 403.14)-

     States must require that pretreatment information be

accessible to the public, although the State may allow for

confidentiality of some business information.  However, States

must ensure that all effluent data are available to the public

without restriction; such data may not be claimed confidential.

Effluent data includes monitoring data, as well as such addi-

tional information as is necessary for the public to determine

whether an indirect discharger is in compliance with applicable

pretreatment standards.  This includes production data used to

calculate pretreatment requirements from applicable production-

based categorical standards.  Other information must be available

to the extent required by the federal confidentiality provisions

at 40 CFR 2.302.


     (v) Recordkeeping

     State pretreatment regulations must also require industrial

users and POTWs to retain information for at least three years.

Such information shall include all sampling and analytical

data used in compiling the reports discussed above.

     (d) POTW Pretreatment Programs (40 CFR 403.8)

     A State must have regulations regarding the development

of local POTW pretreatment programs.  These regulations must

indicate when local programs will be required, and delineate

the procedures and criteria for development and approval of

such programs.

     Unless the State elects to operate a State-run pretreatment

program, it should require all POTWs with flow greater than 5

million gallons per day,  as well as those which receive pollutants

that may pass through or interfere with the treatment works,

to develop local programs.  The State agency may also require

other POTWs to develop local programs if the circumstances

merit it.  All currently identified POTWs must be required to

develop programs by July 1, 1983; these programs should be

either approved or on a compliance schedule for local program

development at this time.  However, those POTWs not yet

identified should not be given more than two years for local

program development.  The State must regulate directly all

industrial users that discharge to POTWs not required to

develop pretreatment programs.

     (i) Contents of a Local Program Submission (40 CFR 403.8,

     The State regulations must set out the requirements for

local pretreatment programs, including the contents of a program

approval request and the substantive criteria that must be met

and against which the program will be evaluated.   State rules

that do not specify the criteria or merely indicate that a

POTW have "adequate" authority and procedures are not sufficient.

     First,  the POTW must be required to have procedures and

legal authority to administer a program.  Legal authority must

at a minimum enable the POTW to do the following:

  o Require industrial users to comply with pretreatment
    requirements.  Such authority must also enable the POTW to
    deny or condition the introduction of new, changed, or
    increased pollutant volumes and concentrations to itself;

  o Control the introduction of pollutants to the POTW by
    contract,  permit, or other mechanism;

  o Require industrial users to develop compliance schedules
    to meet pretreatment requirements;

  o Require the submission of notices and self monitoring
    reports to at least the same extent as required under
    federal law;

  o Enter,  inspect, and sample the effluent of an industrial
    user to ensure compliance independent of self-monitoring

  o Seek remedies against noncomplying industrial users inclnding
    injunctive relief and civil or criminal penalties; and

  o Comply with the same confidentiality of information require-
    ments as EPA and the State (see, Part B(l)(b)(v), above).

     Second, the POTW must also be required to develop detailed

administrative procedures to carry out the following:

  o Identify and locate industrial users subject to pretreat-
    ment requirements, including identifying the character
    and volume of pollutants;

  o Notify industrial users of applicable pretreatment standards;

  o Receive and analyze self monitoring reports to determine
    compliance with applicable requirements;

  o Randomly enter, inspect, and monitor industrial users to
    determine compliance independent of self-monitoring

  o Investigate evidence of noncompliance;  and

  o Publish (at least annually) a list of industrial users
    that have significantly violated pretreatment standards
    in the municipality's largest daily newspaper.

     The POTW must be required to submit a statement from

the city solicitor or comparable city official as part of a

POTW's local program application.  This statement must describe

the city's legal authority to carry out each of the requirements

identified above.   The solicitor's statement also must explain

the legal basis for the administrative procedures which the

POTW intends to use to implement the program.

     In addition,  a complete POTW application must include

copies of all statutes,  ordinances,  contracts,  or other

legal  authorities that form the basis for the POTW's program,

a description of the POTW's organization,  and a description

of the funding and personnel available to the POTW.

     (ii) Approval Process  (40 C.FR 403.9,  403.11)

     States must solicit public comment prior to approving

or denying a local program request.   After determining that

the POTW has submitted a complete application,  the State


must issue a public notice and provide an opportunity for the
applicant, affected States, interested federal, State, or

local agencies, and other interested persons to comment and
request a public hearing.  These procedures are the same as-
those for NPDES permit issuance (see above Part B(l)(g) of this
chapter.  The POTW's local program application must be made
available to the public on request.

     EPA may also comment during this time.  States are prohibited
from approving a local program if EPA objects in writing.  The
State regulations must also provide for interested persons to
receive notice of the final determination on program approval.

     Finally, State regulations' must include procedures for
modifying the POTWs NPDES permit to include conditions regarding
its approved local program.

     (e) Removal Credits (40 CFR 403.7)

     State regulations may allow POTWs to request authority to
adjust the national pretreatment standards otherwise applicable

to their industrial users.   These "removal credits" must be
based upon the POTW's demonstrated ability to consistently
remove pollutants introduced from industrial users.
     States are not required to allow removal credits nor are
POTWs required to request the authority to gra.nt .credits.
However, if a State chooses to allow credits, the State
regulations and criteria for acting upon the the removal credits
requests must be at least as stringent as EPA's requirements
(see 40 CFR 403.7).


     Generally, only POTWs with approved local pretreatment

programs may be granted removal credit authority.  Industrial

users may not request removal credit authority for a POTW and

removal credits cannot he granted if it would cause the POTW

to violate  its NPDES permit or any applicable sludge requirements.

     A POTWs request for removal credits must include the

following items:

  o A list  of pollutants for which credits are requested;

  o Data demonstrating consistent removal;

  o The proposed revised discharge limits;

  o Certification that the POTW has an approved local program;

  o A description of the POTW's sludge use and disposal plan,
    and a certification that the removal credit will not result
    in a violation of the plan; and

 o Certification that the credit will not cause a violation
   of the NPDES permit.

     Removal credit requests must be acted upon in the same

manner as local pretreatment program applications (see Part

B(2)(d)(ii)  of this chapter).  They must be subjected to public

notice and comment, and once a removal credit is approved, the

POTW's NPDES permit must be modified to incorporate it as an

enforceable condition.  In addition, removal credit approvals

must be re-evaluated each time the NPDES permit is reissued.

     (f)  Fundamentally Different Factors Variances (FDFs)
         (40 CFR 403.13)

     EPA regulations provide for FDF variances from otherwise

applicable categorical pretreatment standards.  State programs

may include procedures for allowing FDF variances, although


these are not required.  If a State chooses to allow FDF

variances, the State procedures must be consistent with EPA

requirements.  Under EPA rules, a State may deny but may not

approve an FDF variance request.  Only EPA may grant a variance.

State procedures may authorize the State agency to recommend

approval to EPA.

     The requirements and criteria for FDF requests are identical

to those applicable to requests from direct dischargers.  These

are fully discussed in Part B(l)(f) of this chapter and are not

repeated here.

     (g) Net/Gross Adjustments (40 CFR 403.16)

     State regulations may allow for adjustment of pretreatment

requirements based upon the presence of pollutants in the indirect

discharger's influent.  However, under the federal pretreatment

regulations, only EPA is authorized to grant a net/gross adjust-

ment.  States choosing to allow net credits must be authorized

to impose the adjusted pretreatment requirements once EPA has

approved the request.

     (h) Upset (40 CFR 403.16)

     Although non-compliance with pretreatment requirements

is generally a matter of strict liability, EPA regulations

allow an industrial user which can demonstrate that the violation

was caused by an upset (i.e., circumstances beyond the control

of the industrial user) to plead the upset as an affirmative

defense in an enforcement action.  States may allow industrial


users to establish an affirmative defense of upset.  If the

State adopts upset provisions they must be at least as stringent

as 40 CFR 403.16, and must include the same procedural pre-

requisites to estabishing the defense (e.g., demonstration of

cause, 24 hour notice, mitigation).

(3) Federal Facilities (CWA §313)

     The State program must have authority to regulate discharges

from federal facilities within the State's jurisdiction.  As

discussed in Chapter III, Part B(3), frequently such authority

can be established if the definition of person appearing in the

State regulations is sufficiently broad to encompass federal

facilities.  Thus, a State definition that specifically references

the federal government is adequate.  Similarly,  if the definition

includes government entities, it meets federal requirements if

the Attorney General's statement clearly indicates that this

term is not limited to State agencies.

     It is unnecessary for the State to develop a separate program

for regulating federal facilities.  One cautionary note is

necessary,  however.  Prior to 1977, State programs were not

authorized to regulate federal facilities.  Therefore, regula-

tions adopted prior to that time are likely not to contain

adequate authority and will most likely need revisions to be

consistent with EPA requirements.

 (4) General Permits  (40 CFR 122.28)

     States approved to administer the NPDES program may seek

 approval to issue general permits.  While EPA does not require

 States to seek this additional authorization, States cannot

 issue general NPDES permits without an adequate regulatory

 basis and EPA approval.  States seeking general permits authority

 must have regulatory provisions equivalent to those of EPA.

     The remainder of this section summarizes the requirements

 for general permits authority.  For more detail on the nature

 and use of general permits, see the draft General Permits

 Program Guidance prepared by Permits Division, EPA HQ (a final

 version of this guidance will be issued soon).

     (a) Sources

     General permits may be written only to regulate storm

 water point sources or. a group of point sources which all:

  o Involve the same or substantially similar types of operations;

  o Discharge the same types of waste;

  o Require the same effluent limitations or operating conditions;

  o Require the same or similar monitoring; and

  o In the opinion of the State agency, are more appropriately
    regulated by a general permit than individual permits.      .^

     (b) Scope

     EPA' s regulations limit the scope of general permits to

 existing geographic or political boundaries.  It is assumed

 that the requirements of most State-issued general permits will

have State-wide applications.  However, State regulations must

 specify the possible scope of general permits.


     (c) Coverage

     State regulations must provide authority to do the following:

  o Require a discharger, otherwise covered by a general permit,
    to apply for an individual permit; .

  o Provide an "opt out" mechanism for dischargers, otherwise
    eligible for general permit coverage, to request an individual
    permit; and

  o Provide an opportunity for dischargers, currently holding
    individual permits, to request coverage under a proposed
    general permit.

     In addition, the State regulations should delineate the

criteria to be utilized by the State in determining which

dischargers will qualify for coverage under general permits.

     (d) Procedures

     Regulations are required for a general permits program.

These regulations must ensure that interested persons have

an opportunity to petition the State agency requesting that

dischargers,  covered under a general permit, be required to

obtain an individual permit.

     State regulations may not automatically terminate individual

permits when a general permit, regulating similar discharges,

is issued.  If a discharger has an existing permit, that

permit must be revoked before the discharger may be covered

under the general permit.  The revocation must allow the

same procedures that apply to the issuance or revocation of

individual NPDES permits, including public notice and comment.

                   THE PROGRAM DESCRIPTION
    Contents	Page

A.  Background on the Program Description and
    the Memorandum of Agreement

    (1)  Program Description                           5-1

    (2)  Memorandum of Agreement                       5-3

B.  Purpose and Contents                               5-5

    (1) NPDES Programs

        (a) Program Description                        5-6

            (i) State Organization and Resources     .  5-7

            (ii) Scope and Program Procedures          5-13

            (iii) State Program Forms                  5-19

        (b) Memorandum of Agreement                    5-20

            (1) Permit Review and Issuance             5-21

            (2) Enforcement Management System          5-22

            (3) Financial Assistance                   5-23

            (4) Confidentiality                        5-23

            (5) Program Oversight                      5-23

            (6) Effective Date                         5-24

            (7) Amendment                              5-24

    Contents	Page
    (2) Pretreatment Program

        (a) Program Description                        5-24

            (1) State Organization and Resources       5-25

            (2) Scope and Program Procedures           5-26

        (b) Memorandum of Agreement                    5-31

   (3)   Federal Facilities Program

        (a) Program Description                        5-33

        (b) Memorandum of Agreement                    5-33

   (4)   General Permits Program

        (a) Program Description                        5-34

        (b) Memorandum of Agreement                    5-35

A.  Background on the Program Description and the Memorandum
    of Agreement

    (1)  Program Description

     Section 402(b) of the CWA requires a State requesting

NPDES authority to "submit to the Administrator a full and

complete description of the program it proposes to establish

and administer under State law ..."  A program description

must also be submitted for many program modifications, including

whenever the State seeks to add a new program component.

Section 304(i) of the CWA requires the Administrator to

promulgate guidelines specifying the minimum requirements for

a State program under section 402, including requirements for

uniform national forms, monitoring and reporting, funding,

manpower,  and personnel.  EPA has promulgated these guidelines

in 40 CFR Parts 123 and 403 for the NPDES and pretreatment


     The program description is the primary mechanism by

which the State explains how it intends to administer the

NPDES program.  While the regulations largely define the

State's intended implementation,  they cannot describe the

State processes and policies, such as how the State plans to

structure its enforcement program.  The minimum elements

which must be  included in the NPDES program description are set

out in 40 CFR  123.22.  These components include:

    0 a narrative description of the scope, structure and
       processes of the State program;

    0 a description of the organization and structure of the
       State Agency or Agencies which will be administering the
       program, including:

       - organization charts;

       - a description of the State Agency and staff who
          will carry out the program.  This description
          should indicate the number, occupation and
          general duties of the employees though it
          need not include a complete job description for
          each employee;

       - an itemized account of the anticipated program
          costs for the first two years including the cost of
          program personnel and administrative and technical

       - a discussion of the amount and sources of funding
          that will be used to establish and administer the
          program for its first two years.

    6  A description of applicable State permitting, administra-
      tive,  and judicial review procedures;

    0  Copies of the permit application and reporting forms
       which the State intends to use, except that if the State
       intends to use uniform national forms,  it need only
       indicate its intention, and is not required to submit
       copies; and

    0  A complete description of the State's compliance tracking
       and enforcement programs.

     Pretreatment program submissions also must contain a

program description (in requests for full program approval,

this would be part of the NPDES description).   The pretreat-

ment regulations at 40 CFR 403.10(f)(2) set out the procedures

that States seeking approval of pretreatment programs must

have in place prior to program approval.  These procedures must

be described in the program description.

    These procedures include the following:

       0 Procedures for identifying POTWs required to develop
         pretreatment programs and for identifying industrial
         users of cities that do not have local programs;

       0 Procedures for technical and legal assistance to POTWs;

       0 Process for developing compliance schedules for local
         program development;

       0 Procedures for sampling and analyzing POTW influent,
         effluent, and sludge;

       0 A system to investigate violations of pretreatment
         conditions in the POTW permit;

       e Review and approval processes for local program and
         removal credits requests; and

       0 Procedures for reviewing Fundamentally Different Factors
         variance requests.

     Each of these are explained in more detail below.  This

Chapter also describes other information that must be included

in the program description.

     (2) Memorandum of Agreement

     The federal regulations require that State program submissions

include a Memorandum of Agreement (MOA) between the Director of

the State program and the Regional Administrator (see, 40 CFR

122.21(a)(4) and 123.24).  The MOA is not required by the CWA. "*

However, due to the technical and legal complexity of a State

program, agreements between the State and EPA concerning program

responsibilities are necessary.  The NPDES regulations, therefore,

require an MOA that consolidates all of the agreements rather

than having them scattered in a variety of formats and locations.

The MOA is a critical element of a State program during the

initial approval and start up ..of the State program,  as well as

ongoing program operation.  It serves as a benchmark for program

responsibilities and oversight.  However, the MOA sets out

broad, long-term program commitments.  Specific agreements

covering annual performance should be placed in other documents.

These additional agreements must be consistent with  the MOA.

     The contents of MOA's are prescribed in 40 CFR  123.24,

and include the following items:

    0 Provisions for the prompt transfer of pending  permit
       applications and other information relevant to program
       operation, from EPA to the State agency;

    0 Provisions specifying the classes of permit applications,
       draft permits,  and proposed permits to be sent to the
       Regional Administrator for review, comment, and where
       applicable,  objection.  The MOA should also specify
       the extent to which EPA will waive its right  to review
       and object to State-issued permits under CWA  sections
       402(d-f).  Note that 40 CFR 123.24(d) specifies certain
       classes of permits for which review may not be waived,
       and procedures to be followed for waiver;

    0 Provisions specifying the frequency and content of reports
       and other information which the State is required to
       submit to EPA.   These procedures must implement the
       requirements of 40 CFR 123.43, governing transmission
       of  information to EPA;

    0 Provisions addressing the State's compliance monitoring
       and enforcement program, including the coordination of
       compliance activities by the State and EPA and procedures
       to  assure the coordination of enforcement activities;

    0 Provisions, where appropriate,  for joint processing
       of  permits for facilities or activities which require
       permits from both EPA and the State under different
       programs (see,  40 CFR 124.4);  and

    0 Procedures for modification of the MOA.

     In addition, the MOA should contain .other provisions

outlining the State and Federal responsibilities for

administering the NPDES program.  States and Regions should

use the Model MOA set out in Volume 2.

B.  Purpose and Contents

     The program description and MOA, taken together, should

explain program operation and clearly define the respective

roles of EPA 'and the State, so that by examining these

,two documents EPA or the public can fully understand how

the program will be run.  Some overlap between the content

of the two documents is expected since both address areas

such as compliance monitoring, enforcement, permit issuance,

and transfer of information.  However, the two documents

have different long term roles.  The program description

provides a narrative explanation of program administra-

tion,  which is needed to explain the State's program at

program approval and whenever modifications occur.  The

MOA is designed to be a long-term outline of these pro-

grammatic duties in the form of a binding contractual-

type agreement between EPA and the State.  It establishes

the parameters for ongoing program administration.  In

addition, the MOA is a part of the program submission;

MOA revisions must follow program modification procedures.

(Since the MOA sets out these commitments in fairly general

terms  and since revisions are treated as program modifications

the MOA is not suited for establishing day-to-day program

 commitments  or  goals.  These  specific  annual commitments are

 negotiated in the annual  section  106 work plans.  A more detailed

 discussion of these annual  State/EPA Agreements may be found in

 Chapter  6.)

     To  the  extent possible,  we have attempted to delineate

 which commitments and descriptions must be included in each of

 these documents.  However,  there  is no clear line between the

 two documents.  If there  are  questions as to the proper location

 for certain  elements, EPA and the State should look to the

 roles of each document to determine the preferred location, or

 should include  the description in both.

     (1) NPDES  Authority

     (a)  Program Description

     The program description  explains the State's plans for

operating the program. .While the statutes and regulations

establish the program's structure, many details of the State's

plan cannot be  answered solely by reviewing legal authority.

The program description should describe routine administrative

procedures and  delineate  the  organization, operation, budget

and funding sources of the  State Agency.  A detailed, carefully

drafted program description is indispensable to EPA during the

Agency's evaluation of a  State submission.  It also will reduce

the amount of time necessary  for EPA to review the submission

by answering questions and  clarifing issues that arise elsewhere

in the submission.  States  seeking NPDES authority or modifying

an existing NPDES program should prepare a program description

that outlines the State's intent as fully as possible.


     The program description of a State -Seeking full NPDES

program approval must also encompass the State's pretreatment

program, federal facilities authority and, if the State so

desires, a general permit program.  The pretreatment program

may be described in a separate section, or as an integral part

of the NPDES program.  Normally, a program description will not

be required of NPDES State simply seeking to extend its NPDES

authority to include federal facilities.

     (i) State Organization and Resources

     (a) Organization and Structure

     One important section of the program description, frequently

not given enough attention, is the organization of the agency

or agencies responsible for program administration.  The program

description should indicate the name of the agency or agencies

involved, and the position each holds in the overall. State

governmental hierarchy.  The submission should indicate the

individual or entity to which the State Director reports.  In

addition, the submission should identify and indicate the scope

and function of any advisory body which exerts some influence

or contributes to policy development or decision-making regarding

NPDES matters, and any other State offices that play a role

in the administration of the NPDES program such as the Attorney

General's office, and wildlife, natural resources, and coastal

zone management offices.

     The program description must clearly delineate the juris-

diction of the agency or agencies involved in the program.  If

the State intends to have more than one agency responsible for

the program, each agency must have clearly defined jurisdiction

over a class of activities.  Thus, a State may divide program

administration by having one agency responsible for administration

of the NPDES program for direct dischargers, and another responsible

for the administration of the pretreatment program, or by

having one agency with statewide  jurisdiction over a special

class of dischargers (such as oil and gas producers), while a

second agency administers the program for all other dischargers.

The division of responsibilities between the agencies and their •

procedures for coordination must be clearly set forth.  In

addition, it is highly recommended that one agency be designated

a lead agency to facilitate communications between the State

and EPA.

     The program description must contain an organization chart

for the agency or agencies which will be implementing the

program(s).  The discussion of organization and structure

should track the organizational chart, discussing the division

of functions and responsibilities in each office down to the

branch section level or its equivalent.

     The State must clearly describe which offices within the

agency(s) will be responsible for administering different

aspects of the program.  For example, if a State has a Permits

Section and a Compliance Section, the State should indicate

which would be responsible for pretreatment activities.  The

State should also describe the procedures for coordination

between the various groups.  In the case of a State with


multiple agencies involved, this discussion should clearly

explain the division of duties and detail the coordination and

any overlap of responsibilities between the agencies.

      (b)  Resources and Funding

      The CWA requires that States have adequate resources,

including sufficient funding, and qualified personnel, before

being approved to administer the NPDES program.  The State must

be able to show that it has the resources to operate the program

as described.

      The State agency must project its resource needs for the

first two years of program administration.  These resource

needs should be set out in the form of a workload analysis.

This  analysis must address each component of the program (e.g.,

compliance monitoring, enforcement, permitting, and application

processing) and translate the program functions into work-years

or FTE's (full time employees).  The State should use a reasonable

estimate of the time necessary to perform each function and the

number of times it will be necessary to perform each function.

(For  example, if the State estimates that permits for 40 industrial

majors will be issued in the next two years and that each will

require 30 work-days, then the State's estimated workload for

this  activity is 1200 work-days or 5.5 work-years.  To the extent

possible, the State should base its estimates of workload on

the actual program needs in the next two years (e.g., number of

permits to be issued, etc.).  Where these numbers are less than

the historical norm the State should use estimates closer to the

average workload.  In some cases, EPA may request the State to

 explain  the basis  for its workload estimates.

     The State must also describe staffing levels and relate

 these  staff to the workloads identified through the workload

 analysis.  There should be no double counting of available

 personnel  (i.e., one person should not be identified as devoting

 a  full workyear to two different program functions).  Personnel

 splitting  time between two or more functions must be clearly

 identified.  The State must also identify persons who may be

 working  in other programs part-time.  Additional assistance

 from other offices must also be identified.  For example,

 if technical expertise or legal support from other offices is

 required, the State must account for these arrangements and

 personnel allocations.

     The State should clearly identify and staffing shortfalls

 and explain how they can be handled without impairing program

 performance.  In reviewing these workload estimates, EPA will

 consider the overall State workload and the State's plan for

 program implementation to determine the adequacy of the State

 staff.  State staffing and resources must be adequate to implement

 the State program;  EPA will carefully review any staffing

 shortfalls to determine whether the State can implement the

described program.

     In addition to this workload analysis, the discussion of

resources must contain an itemized listing of the expected costs

of program establishment and operation, including the cost of

administrative and  technical support.  Submissions received in

the past have frequently failed to provide sufficient detail of

expected costs.  It is critical that States seeking approval show

realistic, detailed cost estimates for establishment and operation

of the State program.  This realistic cost evaluation is a good

indication that the State has carefully planned its program and

is aware of the complexities of program establishment and operation,

     Once all of the program expenditures have been identified,

the State must demonstrate its ability to fund the program.  This

requires a listing of financial sources, including federal grants

such as the section 106, 205(g) and 205(j) funds.*  The State

agency should also indicate any restrictions or limitations upon

the use of these Federal funds.  It is suggested that this infor-

mation be presented in the form of a balance sheet or two year

budget.  Any discrepancies between the total estimated funds and

the total estimated costs of operating the program should be

reconciled by the State.

     There are no uniform numbers as to what will constitute

adequate funding, given the wide variation in the size and

complexity of State water pollution control programs.  Instead,

determinations of adequacy must be made on a case-by-case basis,

taking into account not only the size of the State program, but

also types and numbers of industries located in the State.
*/ During its discussion of funding sources, the State should
Tndicate whether the stated appropriations are proposed, or
whether they have actually been approved by the State legislature.

     The State also must identify the qualifications, training,

and work experience required of its personnel administering

the program.  Positions and their qualifications must be

identified by program function  (e .g., permitting, compliance,

enforcement, and pretreatment).  Although States are not required

to submit actual position descriptions for each position, such

descriptions are helpful to EPA.  In addition, the State must

describe general minimum qualifications (academic and/or experience)

required for personnel in each program area.  The program

description should delineate whether these positions have

actually been filled, or if not, when they are scheduled to be

filled.  The State's specific needs should be considered in

establishing minumum qualifications for program staff.  For

example, if a particular industry is a major part of the workload,

knowledge of that industry may be crucial.  Thus, in a

State with many chemical manufacturers, personnel with chemical

engineering and/or toxicology expertise probably would be required.

     Adequate and qualified personnel are obviously an essential

element of a State program.  Since the NPDES regulations must

be applied nationally, they contain only generic criteria for

staffing and personnel qualifications.  This provides the

flexibility necessary to deal with the varied conditions among

States (e.g., number, 'type, and complexity of permittees and/or

indirect dischargers, water quality problems, extent of noncom-

pliance, etc.).   Although tailored to the State's individual

circumstances,  the description must be both comprehensive and



     (ii) Scope and Program Procedures

     The major part of the program description is a discussion

of State's procedures and policies.  To provide perspective -on

the program, the description should provide general background

information addressing the size of the program, the number of

dischargers to be regulated  (list if possible), any pre-existing

State discharge permit programs and their relationship to the

NPDES program.  The State should also outline the nature and

extent of any NPDES activities that the State has been carrying

out in conjunction with the Region prior to approval.  For

example, some unapproved States assist in the development of

draft permits, or participate jointly with EPA in the inspection

of dischargers.  In addition, the program description should

briefly discuss the relationship between the proposed NPDES

program and related State water programs, -such as groundwater

protection, if any.

     The narrative should call attention to any features of

the proposed program that are not required under Federal law,

and areas where the State has chosen to be more stringent than

the Federal requirements.  The State should also discuss the

interrelationship between the NPDES program and the State's    "-

water quality requirements (i.e., how the State water quality

standards will be incorporated into NPDES permits and how the

State will address variances from these standards.  Note,

however, that the State may not allow variances except where

authorized by the CWA).

     Most importantly, the State must clearly set out the pro-

cedures that it intends to follow in implementing and administering

the program.  This discussion must explain, how the State intends

to fulfill its permit issuance responsibilities.  For example, it

must explain who is to be regulated and how that task is to be

carried out, including public involvement in the process.  The

State also should include a discussion of permit issuance priorities

In explaining the State's procedures, the submission must clearly

indicate which office(s) of the State agency will be responsible

for each function.

     State administration of the NPDES program may be divided

into four basic elements as follows:

  0 Application process (including any preapplication
     procedures and new source requirements);

  0 Permit development and issuance;

  0 Compliance monitoring; and

  0 Enforcement.

     The submission must explain the permit process in step-

by-step detail.  The State should explain its procedures for

requiring permit applications, including for the submission of

renewal applications by dischargers currently operating under

permits, and the information to be required of applicants.  To

the extent the information is different from that required on

NPDES application forms,  the State should explain the differences.

The State should also explain any special application procedures

under the program.  If different types of sources are subject to

different application requirements or pfoceedures,  these should

also be explained  (e.g., State NEPA requirements applicable to

new sources).

     The State next must describe both the administrative

procedures used to review and act upon permit applications and

any scientific or  technical evaluations to be performed at the

outfall(s).  The procedures utilized to develop draft permits

must be clearly stated.  These procedures may appear as a chart

or a list if expedient.  In any case, the reader should be able

to follow the steps of permit development based upon the material

provided.  The description must discuss the derivation of

permit conditions, including effluent limitations,  water quality

standards and any applicable pretreatment,  toxic or sludge-related

requirements in as much detail as possible.  The State should

specify any policies related to the imposition of certain types

of limits, such as limits on toxic pollutants..  In addition,

the narrative should discuss the State's mechanism for developing

monitoring requirements and other specific permit conditions.

In describing development of the draft permit, States should

also discuss their use of fact sheets and when these will be

prepared.  The federal rules do not require that States use

fact sheets in all instances.  Furthermore, special considerations

for particular classes of dischargers such as POTW1s, animal

feedlots, silvicultural activities, and storm water discharges

or separate storm sewers should be detailed.  Finally, any

other State-imposed requirements, such as construction permits

 for new  sources, which impact the permit issuance processes

 should also be explained.

     Along with the permit development procedures, the State

 should describe those classes of discharges which will not be

 required to have NPDES permits.  Of course, the State may not

 exclude any dischargers from permitting requirements that are

 not similarly exempted in the federal regulations.

     After the application and permit development processes

have been discussed, the narrative should provide a detailed

 explanation of the proposed permit issuance (public notice

 and comment) process, including the procedure for requesting

and conducting public hearings.  The description should specify

who may comment upon permits and request hearings.  The submission

also must elaborate on EPA's role in reviewing State permits.

Finally, the State must•describe administrative and judicial

review of decisions by the permitting authority, including

which parties may challenge the permit decision.

     The program description should also address the circumstances

and procedures under which the State will transfer, modify,

revoke and reissue, or terminate permits and which (if any) of

the variances authorized under the CWA it intends to allow.

The text should indicate the State's variance policies, as well

as outlining the procedures for responding to variance requests.

Additionally, the State should specify which office will be

handling such requests.

     Once the State has described the operation of its permit

issuance process, it must delineate its proposed strategy for

compliance monitoring.  State compliance monitoring programs

must have procedures for evaluating self-monitoring reports

submitted by permittees to determine whether the discharger

is in compliance with applicable requirements.  In addition,

States must have procedures for determining compliance by

permittees independent of the discharger's self-monitoring.

States must be capable of carrying out comprehensive surveys

to ascertain noncompliance, have procedures to verify the

accuracy of sampling and monitoring reports submitted by

permittees,  and ensure that reports indicating noncompliance

are followed up.  (See, 40 CFR 123.26 and 123.45).  State

programs also must have provisions for responding to complaints

submitted by citizens.  The program description must outline

these procedures.  The State should also describe the standard

monitoring,  recordkeeping, and reporting requirements to be

included in State permits.

     The State's description also should indicate the projected

scope and frequency of inspections and outline the State's

inspection priorities.  At a minimum,  State compliance monitoring

programs must provide for annual inspection of all major dischargers

     The narrative must address the State's procedures for

resolving identified violations.  This strategy includes a

discussion of the State's informal and formal enforcement

remedies, strategy and policies, accompanied by an explanation


of the circumstances which must be present for the State to

abandon informal efforts and resort to formal enforcement actions.

The State should describe any procedures that must be followed

in taking enforcement actions.  Limitations and restrictions

governing the use of these remedies, if any, must be disclosed.

Thus, if State law requires that certain actions be taken prior

to initiating enforcement actions, these must be explained in

the program description.  The discussion on the proposed enforce-

ment program must include a synopsis of the relationship and

coordination between the permitting office, the inspecting/

compliance office, and State legal officials (e.g., the Attorney

General's office).  Finally, the enforcement discussion should

address provisions made to ensure the public's right to parti-

cipate in and have adequate notice of enforcement actions, as

specified by 40 CFR 123.27(d).  (These requirements are discussed

in the statutory and regulations Chapters.)

     The State must also address procedures regarding the

transfer and protection of information.  Specifically, the text

should describe how the State will make all permits, permit

applications and effluent data available to the public.  The

State shall describe what information may be deemed confidential.

Furthermore, the program description must address issuance of

the annual report on the NPDES program, as required by 40 CFR

123.45(b),  as well as the State's involvement, or intention to

become involved in the national computerized permit tracking

system (Permit Compliance System).  Moreover, the State should

discuss its continuing planning process, as mandated by section


 303(e) of the CWA, and address elements listed at 40 CFR 35.1500

 et seq., including State priorities, water quality assessment

 and further planning responsibilities.

     Finally, the program description must indicate that the

 State  intends to update its program to be consistent with the

 changes in the federal NPDES program.  The State should explain

 when and how the State will revise its program following changes

 to federal requirements.  This is particularly important in

 instances in which the State has incorporated federal authorities

 by reference.  This discussion should include the State's plans

 for a periodic self-analysis of its legal authorities and

program effectiveness, as well as future intentions to expand

 of the State's program (i.e., plans to seek general permit


     (iii) State Program Forms

     The permitting authority must provide copies of the permit-

ting,  application, and reporting forms that it intends to use,

 unless the State intends to use the uniform national forms.

 State forms must request the same basic information as is

mandated by the EPA forms.  States are encouraged to use EPA's
national forms,  and may modify them by substituting the State

Agency's own letterhead in place of EPA's.  States may attach

additional forms to obtain more information.  Copies of the

national forms are included in the Models provided in Volume

Two.   Note that all State programs must use EPA's Discharge

Monitoring Report (DMR) forms.  A State planning to use EPA's

forms need only indicate its intentions.


      (b)  Memorandum of Agreement

      The MOA establishes the basis for cooperation and coordi-

nation between the State and EPA and for ensuring that the

program is administered in an effective manner consistent

with  federal objectives and requirements.  The MOA defines

the State/EPA relationship and denotes the responsibilities

of each party.  It charts the procedures EPA and the State

will  follow in carrying out these various responsibilities

and generally defines the manner in which the NPDES program

will  be administered.  The MOA should also be used to clarify

procedures where needed.

      An MOA must be signed by the Director of the State

agency and the appropriate EPA Regional Administrator (RA).

The RA must receive the prior concurrence of the Director of

the Office of Water Enforcement and Permits and the Associate

General Counsel for Water, EPA Headquarters for any new program

or substantial revisions (see, Chapter Two, above.  Note that

nonsubstantial MOA revisions also must be submitted to EPA

Headquarters in advance to assure whether they should be

deemed substantial.).

     The contents of the Memorandum of Agreement are described

below.  EPA has developed a model MOA for use in State program

which embodies normal State/EPA allocation of responsibility

(See Volume 2 of the guidance).  It is recommended that States

use the model and revise it as necessary for the particular

program, generally by adding additional items.  It is unlikely

that commitments in the model would be deleted or modified,

except where the State does not perform a particular program

aspect (e.g., general permits).

     The MOA should begin with a statement of the basis and

implications of the Agreement.  For example, both parties must

indicate their intentions to be bound by its terms.  The MOA

must affirm that the State program will be managed in accordance

with State and federal statutes, regulations, policies, guidance,

the annual section 106 work plan and the State/EPA Enforcement

Agreement (if separate from the MOA).  The MOA may also acknowledge

the State's right to be more stringent than the federal require-

ments.   If the MOA is being updated or revised, it should

include a provision explaining the relationship with the previous

agreement (i.e.,  it must indicate whether it supercedes or

supplements the prior document).

     The main body of the MOA consists of a listing of the

responsibilities and procedures which will be used to ensure

coordination and cooperation between the State and EPA.  The

reader should consult Chapters Three and Four for more details
on the legal requirements for implementing each task.

     The State/EPA obligations are frequently divided according

to program function,  as follows:

     (1) Permit Review and Issuance

     6  Transmission of permit files from EPA to State Agency;

c Suspension of EPA's permitting activities;

0 Transfer of permit appeals cases to State Agency

0 Transmission of pending applications, draft permits,
   public notices, and final permits, to EPA, including
   general permits if applicable, for its review and
   comment, including objection;

e Transmission of non-minor permit modifications to EPA
   for its review and comment/objection;

c Designation of permits waived by EPA, if any,  and
   caveat allowing EPA to terminate waiver,  or
   portion thereof,  at any time.  These should include a
   discussion of the procedures for review of and objection
   to State permits.  Where EPA and the State agree that
   EPA will comment upon draft permits, the MOA should
   specify that all regulatory procedures normally
   applicable to proposed permits will apply to draft
   permits (see 40 CFR 123.44);

0 Establishment of a major facilities list;

0 Procedures for determining new source evaluations ;

8 Transmission of a monthly list of permits issued by the

0 Procedures for evaluating variance requests under sections
   301(c),(g),(h), and FDFs;

0 Procedures for ensuring public involvement in
   permit review and issuance process; and

0 A statement requiring permit information to be packaged
   in such a manner as to be easily adapted into the
   PCS data base.
(2)  Enforcement Management System (EMS)

e State commitment to review permittee's monitoring
   reports and investigate complaints made by EPA and
   the public;

e State commitments to conduct inspections,  including
   joint inspections with EPA;

0 Affirmation that EPA and State will hold periodic
   enforcement conferences to determine priorities;

       State commitment to bring timely and appropriate
        enforcement actions as required .in State/EPA
        Enforcement Agreements; .

       State commitment to provide EPA with notice of proposed
        enforcement settlements, (See,  40 CFR 123.27(d)(2)
        (iii) (optional));

       Joint commitment to immediately notify the other party
        of situations creating a substantial endangerment to
        the public health or welfare, due to an actual or
        threatened direct discharge of pollutants;

       Statement acknowledging EPA's ability to conduct in-
        spections and bring enforcement actions in the State
        (including section 504 emergency powers);

       EPA commitment to provide the State Agency with annual
        joint inspections list;

       EPA commitment to provide State with reports of all EPA
        (Regional Office) inspections in the State; and

       EPA commitment to provide the State with prior notice,
        and copies of all enforcement actions brought in the
(3)  Financial Assistance

     0  Procedures for developing the annual 106 work plan and
        performance-based grants policy,  if applicable;

     0  The MOA should note that the State shall undertake
        revisions to the MOA whenever the State or EPA
        determine the need for such revisions,  since the MOA
        cannot be overridden by other State/EPA agreements;
(4)  Confidentiality

     0 Procedures for treating confidential claims of trade
        secret information (except with respect to permit
        applications, permits, and effluent data);
(5)  Program Oversight

     0  EPA commitment to audit or review State program per-
        formance,  including permit quality reviews (PQR's)
        where appropriate,  and to provide the State Agency
        with a copy of EPA's analysis;

      0  State, commitment  to  seek  legislation  and  promulgate
         regulations  as necessary to preserve and maintain
         consistency  and  compliance  with  federal  requirements;

      c  Procedures  for updating and  revising  State regulations,
         including  any incorporation of EPA regulations  by
         reference, whenever  federal rules  are revised
         (unless  the  federal  rules become less stringent)
         (see Chapter Four, above);

      0  State commitment  to provide  EPA with  draft proposals
         for  statutes, regulations,  policies,  etc.,  for
         its  review and comment prior to  their adoption;

      c  State commitment  to advise EPA of any plans to transfer
         or split NPDES responsibilities  to another State
         Agency, or Agencies.

      (6) Effective Date

      The MOA should  designate the Agreement's effective date

if different from  the date of the signatures.

      (7) Amendment

      Finally, an NPDES program MOA  must  designate procedures

for amending, updating,   and  revising  the document,  including

the need to  public notice substantial revisions  which are

part  of a program  modification.
     (2)  Pretreatment Program

     (a)  Program Description

     Pretreatment authority must be sought by any State seeking

NPDES authority.  Under the CWA Amendments of 1977 existing

NPDES States also are required to seek pretreatment authority

(see, section 54(c), P.L. 95-217, 91 Stat.  1591).  The pre-

treatment program description may either be combined with the

basic NPDES program description or drafted as a separate document

     The essential elements of the pretreatment program descrip-

tion are the same as those for the NPDES document.  The pre-

treatment program description' must address the scope and program

procedures of the proposed program and the organization and

structure of the State agency responsible for administering the

program.  It must include the number, occupations and duties of

the employees; an itemized account of the anticipated costs of

operating the program? a discussion of the sources of the

funding, and a detailed description of the State's compliance

tracking and enforcement programs, including a discussion of

administrative and judicial remedies and authority.

     (1) State Organization and Resources

     The discussion of a State agency's organization and resources

for the pretreatment program is very similar to that of the

NPDES program, discussed above at Part B(l)(a)(i).  The pre-

treatment program description should spell out the structure

and division of duties between the agency or agencies admini-

stering the program.  The State should provide organizational

charts which designate the program responsibilties in the

various offices, divisions, or branches of the agency.

     The discussion of resources again should follow a similar

scope and format as that discussed -above for the NPDES program

at Part B(l)(a).  When considering program approval, EPA will

be particularly concerned with assuring itself that the State's

funding and staffing are adequate to meet the program's require-

ments .  The cost estimates and sources of funding should be

clear and detailed, and the sources of  funding should equal

the amount of estimated costs.  A workload analysis also must

be included  (see, Model Program Description, Volume Two), and

realistic, carefully developed staffing information should be

provided.  For example, pretreatment programs must have

personnel capable of reviewing POTW programs, baseline monitoring

reports, industrial user surveys, adequacy of local ordinances,

local limits and removal credit requests.  Finally, as with

the NPDES description, detailed information on each of the

pretreatment positions must be provided, including required

experience or qualifications.

     (2) Scope and Program Procedures

     As with the NPDES program description, the pretreatment

description must explain how the program is to be implemented.

The State must fully explain how it intends to administer the

program.  In addition, the State must discuss the procedures

it intends to use in performing the tasks outlined in 40 CFR

403.10(f)(2).  These required procedures are discussed below.

     The State must generally describe the scope of the

proposed program and the State's strategy for program imple-

mentation.  Specifically,  the discussion must indicate whether

the State has elected to place the primary responsibility for

regulating Industrial Users (lU's) on POTWs, whether the

State Agency will implement the pretreatment requirements

itself,  or whether the State adopts a bifurcated approach

with some POTWs (such as those with more industrial flow)

developing local programs while the State regulates the remainder

of lU's through permits and/or regulations.  If this latter

approach is selected, the program description must fully discuss

both the POTW and State components of the proposed regulatory

scheme.  If the State intends to require POTWs to develop local

programs, the State must describe the criteria for selecting

which cities will be required to develop programs and how the

State will regulate lUs in cities that do not develop programs.

The description should indicate the number of cities required

to develop programs as well.  This discussion should also

address how these cities were identified and how new cities

will be identified and notified of program development require-

ments.   Finally, the State should discuss the imposition of

compliance schedules in NPDES permits requiring local program


    If the State intends to regulate any lUs directly, the

submission must discuss how these lUs will be identified and

notified of pretreatment requirements.  The State must also

describe the mechanism by which these dischargers will be

regulated.  If no lUs will be regulated directly, the State

need only address its plans and procedures for oversight of

local POTW program administration to insure that all lUs are

identified and regulated.

     The regulatory authority, be it the POTW or the State,

must carry out industrial waste surveys to ascertain the

nature and content of industrial discharges to POTWs.  Plans

for the distribution and analysis of these surveys should be

discussed in the program description.  The State should also

provide an explanation of its ability to keep track of indirect

discharges commencing in the future.

     If the State has elected to have POTWs develop local

programs, the program description must clearly explain the

criteria and procedures to be followed in approving local

programs.  Where local program administration is to be handled

by the State agency, it should indicate the requirements the

State will impose on POTWs.  The program description should also

detail the public participation provisions for local program

approvals, as well as the requisite legal and programmatic

considerations mandated by 40 CFR 403.8(f).  In particular,

the narrative should carefully describe the policies and

criteria to be applied in the review of POTW legal authorities.

As part of its review of POTW requests for program approval,

the approval authority (i.e., the State) must independently

evaluate the legal authorities which the POTW intends to use

to implement its program.  The State must describe who will

be conducting such reviews and must commit to a conduct a

complete and independent review of local authorities.

     The narrative should set out the State's legal and technical

assistance program for the development and implementation of

local programs.   This includes providing model ordinances,

developing local limits,  and evaluating compliance.  In addition,

the submission should clearly explain the State's role in

providing other assistance to POTWs, including legal and finan-

cial aid.   If the State is currently assisting EPA in the

administration of the State pretreatment program, the State's

duties and  responsibilities should be explained, and any other

pretreatment related activities underway should be noted.

     The document also should explain the State's policy and

procedures  for processing requests for category determinations,

fundamentally different factors variances (FDF), revisions to

categorical pretreatment standards (removal credits), and

net/gross adjustments to categorical pretreatment standards.

This should include a discussion of any public participation

requirements and a description of the review process for. each

of these actions.

     The State must discuss its program for compliance monitoring,

In many respects, this program is comparable to the NPDES com-

pliance monitoring program (see Part B(l)(a), above*).  The

scope of the program should also be comparable to that of the

federal pretreatment program.  The State must clearly delineate

how it intends to review IU reports and determine appropriate
responses.  States must have procedures for evaluating compliance

by lUs, even where the POTW has an approved pretreatment program.

In these instances, the State may rely upon the POTW, but must
V In the case of a joint NPDES/pretreatment program submission,
the State need only describe pretreatment enforcement options
to the extent that they differ from the State's NPDES enforcement

describe how  it  intends to oversee the  local program and

periodically  conduct independent evaluations of  IU reports

to determine  compliance.

     The State must also describe its process for determining,

independent of information supplied by  POTWs or  industrial

users, whether the POTW and industrial  users are in compliance

with conditions  incorporated into the POTW permit and pretreat-

ment requirements imposed on the IU.  The submission should

elaborate on  the nature and frequency of reporting requirements

to be imposed upon POTWs and industrial users.   It is also

essential for the State to address its program for compliance

inspections of both POTWs and industrial users,  including

regularly scheduled inspections as well as random or spot

checks.  States may rely on approved POTWs for some inspections,

but must conduct an independent inspection program.

     The State must also describe its enforcement program.

This discussion should also explain the State Agency's back-

up enforcement authority for those situations where a POTW

cannot or will not properly enforce against an industrial

user.  This back-up authority must be available against both

POTWs and IDs.

     States with very detailed, self-implementing statutory

authority need not promulgate pretreatment regulations (see,

Chapter 4,  Part B(2)).   If a qualified State chooses the

option of not promulgating regulations,  the pretreatment

portion of its program description must fully detailed explain

how the State will implement each and every provision of the

federal pretreatment regulations .as enforceable requirements.

EPA does not expect that many States will qualify for program

approval without detailed regulations.

      (b) Memorandum of Agreement

     An NPDES program submission (or existing NPDES States

seeking pretreatment authority) will need to submit an MOA

which addresses pretreatment responsibilities.  In the case of

existing MOA's, the reviewer should examine the language very

carefully to ascertain that it contains no restrictions on the

State's ability to assume pretreatment authority.

     The MOA must define State and EPA responsibility in carrying

out the establishment and enforcement of the pretreatment

requirements for new and existing POTWs and indirect dischargers,

under sections 307(b) and (c) of the CWA.  The MOA should

indicate that the State is responsible for enforcing the general

and specific prohibited discharges; reviewing, approving and

overseeing POTW programs (subject to EPA review and possible

objection); incorporating local POTW program conditions into

NPDES permits (unless the State is administering the local

programs,  in which case responsibility will lie with the State  "^

to regulate directly all indirect dischargers); and reviewing

and approving modifications to categorical standards reflecting

POTW pollutant removal.  As with the basic NPDES program, the

pretreatment MOA should generally indicate State procedures for

carrying out monitoring and inspections of both POTWs and

 indirect dischargers.  These procedures must enable the State

 to independently verify data reported by POTWs and indirect


     The MOA must include a brief discussion of the State's

 procedures for reviewing IDs' requests for category determina-

 tions  (see, 40 CFR 403.6), including provisiona allowing an

 appeal of the State's decision to EPA.  The MOA must also

 specifically provide that no POTW program, or request for

 authority to grant removal credits, shall be approved if

 EPA's Regional Water Management Division Director objects

 during the evaluation period (see, 40 CFR 403.11(d)).

     If the State wishes to allow lUs to request fundamentally

different factors variances (FDF's), and net/gross adjustments,

the MOA must note the basic policy and procedures for responding

to these requests.  The MOA should indicate that the State may

deny FDF requests (if State law so allows) or recommend approval

of the request to EPA, which is responsible for final decisions.

 It should also contain provisions for EPA review and actions on

net/gross requests.  Finally,  the pretreatment MOA should

provide that nothing in the MOA is intended to affect any

pretreatment requirement established under State or local law,

except that EPA may take action if State or local requirements

are less stringent than federal law.

      (3)  Federal Facilities

      (a) Program Description

      The program description must, of course, address the

State's regulation of federal facilities.*   In many cases, this

will  simply entail indicating that the permitting of federal

facilities was taken into account in developing funding and

staffing estimates and that federal facilities will be handled

similarly to all other direct discharges.  However, if the

State  intends to follow any unique or special procedures with

regard to permitting federal facilities  (or dealing with indirect

discharging federal facilities), these should be described.  It

is also helpful for the State to provide a listing of federal

facilities within its jurisdiction.

      (b) Memorandum of Agreement

     Special attention should be paid to language relating to

federal facilities authority in the MOA, particularly where an

existing NPDES State is revising its program.  To be acceptable

for federal facilities authority, the MOA cannot restrict State

authority with regard to regulation of, or enforcement against,

federal facilities.  Since prior to the 1977 Amendments, States

were not authorized the regulate federal facilities, many MOAs -^

for States approved before 1977 specifically prohibit State

regulation of such sources under the NPDES program.  Where the

MOA limits the State's authority over federal facilities, it
   *_/  The 1977 CWA amendments require approved NPDES States to
   seek federal facilities authority.  See Memorandum on the
   Transfer of Authority Over Federal Facilites to NPDES States,
   (Nov. 28,  1978), contained in Volume II.


must be modified at the time the  federal  facilities authority

request is approved.  Among other provisions, the MOA should

note that EPA reserves the right  to enter and inspect federal


     (4)  General Permit Authority

     Unlike pretreatment and federal facilities authority,

general permit authority is an optional program and need not be

contained in an NPDES submission.  However, if States choose to

issue such permits, EPA requires a program description and MOA

modification to be included in all submissions requesting

general permit authority.

     (a) Program Description

     The State must generally describe how it intends to administer

its general permit program, including under what circumstances

general permits are issued.  It is important for the

State to clearly set out its general permit strategy so that

reviewers can determine whether it is consistent with the CWA.

This includes specifying the classes of dischargers the State

intends to permit (a list of general permits the State plans to

develop will be invaluable to EPA personnel reviewing the

program application),  along with any restrictions on general

permit  coverage (such as discharger size or industry category)

the State is imposing on itself.

     The State must detail the procedures it will utilize to .

ascertain which dischargers are covered under a given general

permit, as well as providing the~approximate number of dischargers

it intends to include under each permit, if known.  Procedures

for notifying dischargers of their eligibility for coverage

under a general permit should also be indicated.

     Furthermore, the document must discuss the public parti-

cipation procedures for general permit issuance (these are

required by 40 CFR Part 124).  For example, the State must

indicate whether it will provide public notice when a discharger,

already regulated under an individual NPDES permit, requests

coverage under a general permit and seeks to have its individual

permit revoked.

     The general permit program description should indicate

staffing or resource implications  of program approval.  For

example, general permits may free  up some NPDES staffing and

resources which may be redirected  toward other areas of the


     (b) Memorandum of Agreement

     The MOA must detail the interrelationship .between EPA

and the State.  Specifically, the  document must address EPA

review and comment/objection procedures for State general

permits since they are different from EPA review of individual

NPDES permits.*

     In the case of an NPDES State seeking to modify its program

by adding general permit authority*  the existing MOA must be

revised if it contains language limiting its applicability to

individual permits, or lacks a discussion on EPA review and

comment/objection of State general permits.
    ^/  General permits must be reviewed by the Director of the
    Office of Water Enforcement and Permits,  EPA Headquarters,
    before they may be issued by the State agency (see,  40 CFR
    123.43(b), 123.44(a)(2), and 123.45(i)).

                    THE OVERSIGHT PROCESS
    Contents	Page

A.  Background on the Oversight Process                6-1

B.  Statutory Basis                                    6-5

C.  EPA and State Roles                                6-7

D.  Identification and Resolution of State Program
    Deficiencies                                       6-10

    (1) Identification                                 6-10

       (a) Mid-Year Evaluation                         6-12

       (b) Legal Authority Review                      6-12

    (2) Deficiency resolution  '                        6-14

       (a) Informal Dialogue With State                6-14

       (b) Modification of State-EPA Agreement or MOA  6-15

       (c) Conditioning Receipt of §106 Grant on
           Achievement of Specific Commitments         6-16

       (d) Review of State-Issued Permits              6-17

       (e) Formal Audit of State Permitting and
           Compliance Activities       .                6-18

       (f) EPA Veto of State-Issued Permits            6-19

       (g) Cutting EPA-Provided Funding                6-20

       (h) EPA-State Consent Agreement                 6-21

       (i) Federal Assumption of State Enforcement     6-22

       (j) Fact-Finding Hearing on Program
           Deficiencies                                6-23

       (k) Program Withdrawal                          6-24


                      THE OVERSIGHT PROCESS

A.  Background On the Oversight Process

     This Chapter addresses EPA oversight of State NPDES programs

State program oversight encompasses overall program operation

and performance, including permitting and enforcement, as well

as oversight to assure consistency of State NPDES legal

authority with minimum federal NPDES requirements.  This

Chapter addresses primarily the legal aspects of State pro-

gram oversight.  This Chapter also addresses methods for


resolving program deficiencies.

     State programs must at all times be administered con-

sistent with federal requirements.  EPA is required by the

CWA to oversee State programs after approval to ensure adequate

consistency.  Responsible and effective oversight is beneficial

to both the approved States and EPA.  In addition to ensuring

that State programs are being run in accordance with the

requirements of the CWA, the oversight process provides EPA

with information on the day to day operation of the NPDES

program.  Among other uses, this type of information may be

used to form the basis for reports to Congress on the effect-

iveness of current laws and justifying State grant funding

levels and State-assistance programs.  Federal oversight

also provides- a means by which to collect and exchange in-

formation between the States.  More importantly, regular

State oversight enables EPA to identify State program

problems before they reach the crisis stage, thus allowing

easier resolution.

     EPA's oversight activities are designed to help both

the Agency and approved States evaluate the strengths and

weaknesses of State programs and thus increase the program's

effectiveness.  In addition to issuing high quality NPDES

permits without allowing backlogs of expired or unissued

permits to develop, States must be able to manage a timely

and effective enforcement program and a competent and effect-

ive pretreatment program.  Operating such a comprehensive

program requires up-to-date legal authorities, properly

trained personnel in numbers sufficient to meet the program's

needs, and adequate resources.  Strengths and weaknesses are

generally identified as falling within the following three

classes: (1) programmatic performance, (2) legal authorities,

or (3) resource levels.

(1) Programmatic Deficiencies

     Programmatic deficiencies are those resulting from the

State's failure properly to administer the program the State

described in its program submission.  Essentially, this means

that the State is not complying with the requirements of the

MOA (which sets out the State's commitments).  Specific

examples of these types of deficiencies include: an excessive

backlog of expired permits, an inadequate permit issuance

rate, deficient permits which do not contain all required

conditions and limitations, failure by the State to comply

with NPDES regulations, including  failure to comply with

procedural requirements when issuing permits, failure to

submit permits  for Regional review or respond to the Region's

comments, failure to run an effective enforcement program,

and failure to  properly administer the pretreatment program.

In addition, an approved State's failure to seek pretreatment

and federal facilities authority from EPA, as required by

Federal law, is considered to be a programmatic deficiency.

(2) Legal Deficiencies

     Legal deficiencies include outdated State legal authorit-

ies or improper revisions to those authorities.  Many State

programs have not been reviewed for legal sufficiency since

their initial approval.  Since most State programs were

approved before 1977, this also means that many State programs

may not have been updated to reflect requirements mandated

by the 1977 CWA amendments.  In addition, the federal regula-

tions have undergone numerous and  significant changes since

these Amendments.

     Legal deficiencies also may have occurred due to State

changes to statutes or regulations subsequent to program

approval,  where the State did not  request program modification

to reflect those changes.   Examples of such revisions include:

statutory amendments eliminating or modifying a general

conflict of interest bar to members of the State's permitting

body; and creating permit variances not allowed under the

CWA.   Other States have experienced judicial decisions that

affect State program operations.


     States with outdated or inconsistent legal authorities

are expected to review and revise those authorities to be

consistent with federal requirements.  EPA Regions and Head-

quarters are now implementing a program for periodic review

of approved State legal authorities.

     (3) Resource-Related Deficiencies

     Resource problems include inadequate funding and

insufficient or inadequately trained personnel.  In some

cases, State resource shortfalls appear to be the result of

a shift in resources, previously committed to NPDES activi-

ties, to other State environmental programs.  A shortage of

qualified personnel can have an appreciable negative impact

on program administration, particularly when there is a lack

of qualified permit writers or properly trained inspectors.

Resource deficiencies frequently will lead to serious

problems in other aspects of program administration, leaving

the State unable to properly operate the program.  In such

cases, EPA must require that proper funding and staffing

be provided by the State as a condition of continued program


     In an effort to improve NPDES program quality through

improved communication of EPA's expectations of State and

Regional program performance, EPA has developed a compre-

hensive oversight policy for State NPDES programs.  This

policy will be reviewed and updated annually.  (The FY

1987 Guidance for Oversight of NPDES Programs has been re-

produced in Volume Two.)   The guidance sets out goals


for State NPDES programs and defines an adequate NPDES

program.  When EPA oversees State program administration, the

Agency will evaluate the State program against the objectives

set out in the guidance.  For example, the Guidance calls for

States and Regions to issue high quality permits and maintain

a low backlog.  In its oversight of State programs, EPA will

examine these aspects.  The Guidance does not address specific

annual commitments, although these are based upon the goals

set out in the Guidance.

B.  Statutory Basis

     In creating the NPDES program. Congress clearly intended

that the program be implemented largely by the States.

Section 402(b) requires that a State, wishing to manage the

NPDES program in lieu of EPA,  demonstrate that it possesses

the requisite authorities, procedures and resources to do

so.   For a detailed discussion of the approval process, see

Chapter Two,  above.  The CWA is abundantly clear that EPA is

expected to retain an important oversight responsibility

following State program approval.  EPA's fulfillment of this

oversight duty is critical to achieving national consistency

and the sucessful implementation of the NPDES program.

     The statutory basis for EPA's oversight function is

contained in section 402(c) of the CWA.  Paragraph (c)(2)

of that section states that "[a]ny State permit program under

this section shall at all times be in accordance with this

section and guidelines promulgated pursuant to section 304(i)(2)


of this Act."  Paragraph (c)(3) states that if the Administrator

determines, after hearing,  that a State program is not being

administered in accordance with federal requirements,  he shall

withdraw the program.  In order to carry out this duty,  the

Administrator must continually oversee State program operation.

Section 402 also requires State programs to fully comply with

the federal regulations upon approval.

     These statutory mandates are reiterated in Part 123 of the

NPDES regulations which provides that "[a]ny State program

approved by the Administrator shall at all times be conducted

in accordance with the requirements of this part" (see,  40

CFR 123.1(£) and 123.62(e)).  Part 123 also requires State

legal authority to be revised to comply with new or revised

federal authority.  Such revisions are to be made within one

year or, when statutory revisions are needed, within two years

of the federal change.  A State's failure to have up-to-date

legal authorities can have a significant negative impact

on the State program and result in deficient permits or legal

challenges to the program's approval status.  Out-of-date

statutes and regulations can also have adverse effects on

one of the primary goals of the CWA: general consistency among

State water pollution control programs.  Inadequate State

legal authorities could give dischargers in one State an un-

fair advantage over dischargers in other States.  Finally,

inadequate or out-of-date legal authorities are grounds for

EPA to withdraw its program approval (see, 40 CFR 123.63).

 C.   EPA and  State Roles

     The program description and the MOA should clearly set

 out  the respective oversight roles of EPA and the State.

 For  a  complete discussion of these documents, see Chapter 5,

 above, and the Model MOA reproduced in Volume Two.  Establishing

 responsibilities in writing clarifies the scope of anticipated

 program activities and provides a framework for the resolution

 of any disputes which may arise.

     EPA's role in the oversight process originates with

 initial approval of the State program.  At the time of approval,

 EPA  reviews  the State's submission to ascertain that the

 State has adequate funding, resources, organizational

 structure, and legal authority to run an effective program.

 However, EPA approval of the "paper program" is only the

 first step in assuring a quality State prpgram.   To ensure a

 smooth transition,  EPA assists newly-approved States following

 approval.  The MOA typically requires EPA to transfer its

 relevant files on permits and permittees to the State.  In

 addition, EPA will provide technical assistance in developing

 effluent limitations and drafting permits.   This assistance

 is available in the form of actual drafting of specific

 permits, and workshops and seminars for permit writers.

     EPA ongoing oversight activities are designed to evaluate

 both the on-going State program operations and overall program

planning and performance.  The oversight of on-going program

 administration focuses on individual permits and compliance

activities.  These activities include receiving and reviewing.

draft or proposed State permits, evaluating reports addressing

compliance and enforcement activities, and participating

in inspections of permitted facilities or indirect dischargers

in the State.

     For the broader perspective, EPA Regions conduct mid-year

State program reviews and periodic audits of State performance.

These inquiries allow EPA to assess program performance as

a whole, focusing on the State's achievement of overall

program goals.  The mid-year review is often carried out in

conjunction with the annual State-EPA agreement (SEA) and

the section 106 grant funding 'negotiations.

     The section 106 grant process involves the negotiation

of a State work plan between EPA and the State.  The.section

106 funds are disbursed by EPA Regional offices based upon a

formula determined by data reflecting the scope of each

State's water quality problem.  Generally, the EPA Regions

provide targets for the completion of activities by the

State agencies which receive the section 106 funds.

     The 106 work plan designates commitments consistent with

the essential State program activities defined in EPA's

annual operating guidance and summarizes activities that the

State and Region agree should be performed during the fiscal

year.  The work plan covers all activities which are supported

by the annual section 106 grant.  The work plan also indicates

the  level of grant  resources to be devoted to  specific tasks.

It must also be consistent with the MOA.  Generally, the

plan is incorporated  into an annual State/EPA  Agreement

(SEA).  The SEA serves as a tool for  joint State/EPA planning

and  evaluation.  It establishes priorities, measures program

successes, and indicates each party's formal commitments.

The  SEA thus may be broader than the section 106 workplan.

However, the two documents are frequently similar and may be

combined by some Regional Offices.  The SEA is not required

by federal law, and currently, only about half of the Regional

offices implement SEAs with their approved States.

     The State's responsibilities in the oversight process

are  largely informational, although EPA coordinates all its

oversight activities with the State.  Of course, the State

is also required to submit copies of proposed and issued

permits to EPA in accordance with the MOA.  As noted in

Chapter 2, the CWA and the MOA obligates the State to notify

EPA of any proposed revisions to its legal authorities and

submit a copy of the proposed revisions to EPA for review.

     In summary, EPA's role in the oversight process is to

analyze and assess program performance, based largely upon

information supplied by the State itself.  However, for

various reasons, the necessary information is not always

provided to the EPA Regions and Headquarters in a timely and

consistent manner.  These problems distort and reduce the

effectiveness of the oversight process.

     As is discussed in the following section, EPA is expand-

ing its State oversight activities relating to both program

performance and legal authorities.  It is anticipated that

these activities will fulfill EPA's statutory obligation to

ensure that State programs are in full compliance with the

CWA, as well as identify those State programs with serious

deficiencies.  The results of these activities will in turn

enable EPA to efficiently utilize its own resources in

resolving those deficiencies.

D.  Identification and Resolution of State Program Deficiencies

     (1)  Identification

     The identification and resolution of deficiencies in

State programs and legal authorities has not received priority

attention until recently.  However, the adequacy of State

permit program performance is a critical link in achieving

the Agency's mission under the CWA, and the adequacy of

legal authorities is directly linked to the adequacy and

defensibility of State-issued permits.  Thus, the identifi-

cation and correction of program deficiencies is an essential

part of the oversight process.

     In the past, problems with State programs have usually
been brought to EPA's attention by a problem or challenge to

a particular permit.  For example, EPA might learn that a

permit is unenforceable because the State lacks adequate

regulations, or that a State is reluctant to take enforcement

actions because of concerns about the adequacy of its authority.

On other occasions, EPA learns of program deficiencies through

letters or lawsuits from environmental groups, or these problems


 are  identified  in the course of reviewing State legal authorities

 in response to  a State's request for authority to administer

 a pretreatment  or general permit program, or to regulate

 federal  facilities.  However, until now, the common denominator

 of virtually all deficiencies identified by EPA has been

 that they have  been identified in a remedial or passive

 context.  In many cases, these deficiencies have been brought

 to EPA's attention by outside parties.  EPA's on-going oversight

 of State programs identifies many of the deficiencies that

 may need to be  resolved.  For example, EPA conducts regular

 reviews of State-issued permits, which may indicate that a number

 of permits are  inadequate.  However, these are generally

 individual instances where problems have occurred; EPA and

 the States generally can work out informal means to correct

 these day-to-day program operation problems.

     On a separate track, EPA oversees programs to identify

more significant concerns.  Rather than being remedial,

 EPA's current oversight program is intended to be preventative

 in nature, and will attempt to locate and resolve potential

deficiencies in State program operations and legal authorities

before they actually come to pass.  Although EPA continually

oversees State programs, the Agency's current procedures for

 identifying State program problems rely upon the following

two tools, each with a different emphasis.  These tools,

mid-year evaluations (which are focused on implementation

problems) and legal reviews (which focus on legal authorities

 and  resources)  are  described below.

      (a)   Mid-Year  Evaluations

      Regional offices  are  expected to perform comprehensive

 evaluations of  approved  State programs at least once each

 year.  This review  is  usually conducted prior to the Office

 of Water's  (EPA Headquarters) mid-year evaluation of the Region,

 The  Region's comprehensive review typically summarizes the

 results of the  periodic  program evaluations that have been

 performed  during the preceeding year.

     The Region's own  review of the State's performance

 revolves around the SEA  and section 106 grant negotiations

 discussed above.  During these processes, priorities and

 commitments are established for the coming year.  In addition,

 specific difficulties, peculiar to the State, should be

 identified and  addressed in the SEA whenever posible.

     At the conclusion of the annual review, the Region

will prepare a  written report outlining the State's accomplish-

ments and indicating areas where improvements are needed, as

well as summarizing agreements reached on the resolution of

any problems identified  during the process.  Copies of these

documents should be provided by the Region to the appropriate

staff in the Office of Water Enforcement and Permits, EPA


     (b)  Legal Authority Reviews

     Since the  NPDES program is constantly evolving, there

will always be  a need to revise and update State programs.


 State  law  should be reviewed periodically to ensure legal

 authorities are consistent and up-to-date.  Many approved

 State  legal authorities have neither been updated by the

 State  nor  reviewed by EPA since the time of initial program

 approval.  To rectify this situation, EPA has developed a

 strategy for reviewing approved programs which calls for

 each Region to conduct a comprehensive evaluation of at

 least  one  approved State's legal authorities each year (See,

 Memorandum, "Review of Approved NPDES Programs," from the

 Director of the Office of Water Enforcement and Permits to

 EPA Regional Water Management Directors, reproduced in Volume

 Two).  In  addition, the FY 86 Guidance for Oversight of

 NPDES  Programs calls for all approved State legal authorities

 to be  reviewed by the end of FY 86 (this commitment also

 appeared in the FY 85 Guidance).

     Once  the individual States are selected and a priority

 for review is established,  EPA will request each State to

conduct a  self-evaluation of its legal authorities.  After

each State completes an initial analysis of its legal author-

 ities,  EPA will conduct an independent review.   These reviews

will be coordinated between EPA Headquarters and Regional

Offices and will be equivalent in scope to the review now

carried out for new or modified NPDES programs.  (The procedures

 for legal  reviews are set out in Chapter 2,  above.)

     If EPA or a State identifies deficiencies in the State's

 legal authorities,  EPA will work closely with the State to

remedy the deficiencies.  If needed, EPA will provide legal

support and assistance in drafting these revisions.  It is

anticipated that  in many cases., EPA's concerns can be resolved

by a well-documented opinion from the State Attorney General.

      (2) Deficiency Resolution

     Once a State program deficiency is identified, it must

be resolved.  The appropriate remedy or remedies will be

selected by EPA after considering the nature and seriousness

of the problem, the State's awareness of the problem, and

the State's willingness to deal expeditiously with it.  In

many cases, the problem can be worked out informally by the

joint efforts of  the State and EPA.  Whenever possible, EPA

will accept a resolution of the problem which is the least

disruptive and time-consuming.  For example, with questions

concerning State  legal authority, EPA will generally accept

an Attorney General's statement supported with adequate

citations and case law as an alternative to requiring a more

costly and time consuming statutory change.  The tools EPA

has at its disposal to resolve State program deficiencies

include the following (in roughly escalating order):

     (a) Informal Dialogue With State

     Virtually all problem resolution efforts will begin  .

with a discussion about the problem.  The State will be advised

as to what problems EPA perceives and what steps EPA believes

should be taken to resolve the problem.  EPA will attempt

to determine the  cause of the problem and recommend a

plan for resolution.  This may include technical assistance


 or  additional guidance  from EPA or a  recommendation that the

 State obtain contractor assistance.   As with any of the

 deficiency  resolution techniques discussed below, EPA's goal

 during these informal discussions is  to help the State return

 to  compliance with CWA requirements.  However, EPA may indi-

 cate during these discussions that further action will be

 taken by EPA if the State fails to take prompt corrective

 action.  In such situations,  EPA will apply one or more of

 the remaining tools for deficiency resolution.

     (b)  Modification of State-EPA Agreement or MOA

     In some cases, it may be effective for EPA and the State

 to address the problem in the SEA or annual section 106 grant

 (these two documents are described above at page 6-6), or

 amend the MOA to reflect program performance goals necessary

 to eliminate the problem.  For certain problems, particularly

 those relating to information transfer,  other procedural

 problems, or those deficiencies impacting the program over

 a long period of time, modification of the MOA may be an

 appropriate step.  Other short-term performance problems

 (e.g.,  elimination of a specified backlog), are more appro-

 priately addressed through the annual SEA/106 grant negotiation

 process.  EPA may put specific State goals in these documents

 to be achieved during the following year.  The State's

performance can then be tracked against  these commitments.

 Since the commitment is set out specifically, the State's

compliance can be easily determined,  as  well as the need for

 further action.  These documents may  also be useful in


the resolution of enforcement or compliance deficiencies,

particularly if the State needs to increase activities which

may be  included in the agreeme-nts as quantifiable outputs,

such as compliance inspections or enforcement referrals.

     (c)  Conditioning Receipt of §106 Grant on Achievement of
          Specific Commitments

     EPA intends to use performance-based grants, including

the §106 grant, as a mangement tool to promote and recognize

the effective performance of State NPDES programs (see,

Administrator Thomas' May 31, 1985, Policy on Performance-Based

Assistance).  This policy is reproduced in Volume Two.  It

explicitly links the provision of EPA grant funds to effective

State performance.

     In the case of §106 funds, effective State performance

is evidenced by the State achieving its work plan commitments.

States with superior performance may be eligible for financial

incentives,  including supplemental funding, while States

which fail to meet significant goals in their work plan may

be subject to reductions in funding, restrictions on the use

of federal funding,  or adjustments to the schedule for release

of funding (including witholding a portion of the grant

until the commitment is met).  Since a properly drafted work

plan contains quantifiable outputs for each described activity,

it provides an excellent basis for evaluating the State's

progress toward meeting its commitments.

     Regional Offices are required to review State progress

 against  the  work  plan  throughout  the year  (see,  40 CFR

 35.3150).  If  a State  fails significantly to achieve the

 commitments  contained  in the work program, such  as additional

 measures as  discussed  above, the  Region should consider

 actions  to encourage improved  future State performance.  As

 one means to encourage improved State performance, the Region

 should strongly consider a financial penalty such as a

 reduction of the  grant award.  This grant reduction is

 based upon the principle that  funds are awarded  to accomplish

 specific, mutually agreed tasks.  If the State fails signi-

 ficantly in  accomplishing the  tasks, the funding should be

 reduced proportionately.  Since there are no objective, auto-

 matic standards to be  applied, the Region should use its best

 judgement in using grant reduction.  Two important factors

which should be considered are actual State performance

compared to  its output commitments and the prior history of

 State performance.  In instances where a State has repeatedly

 failed to meet its commitments, the Region has little choice

but to reduce grant funding.  However, any reduction or

elimination of grant funding must always be carried out in

accordance with the Agency-wide policy on the subject, and

should be reserved for instances of clearly inadequate


     (d)  Review of State-issued permits

     The CWA provides for EPA review of State-issued NPDES

permits.   EPA review ensures that EPA provides comment where

appropriate to assure that State NPDES permits meet minimum


federal requirements.  In addition, EPA can often provide

information or data helpful to assist State permit writers

in keeping up with new developments in control techniques

in other parts of the nation.  This procedure often has the

additional benefit of helping State permit writers improve

their skills, particularly if the permit review is carried

out in conjunction with additional training or guidance.

     Section 402(e) provides that, for certain classes, EPA

may waive its review of all permits.  The Agency's State

program regulations establish the types of permits which

may not be waived.  These include major permits, general

permits,  permits for discharges which may affect another

State and permits for discharges into the territorial seas

(see,  40 CFR 123.24(d)).  However, if a State often needs

assistance in developing appropriate permit limits or

is otherwise having difficulty issuing adequate permits, the

Region should not waive its review to the maximum allowable

extent.  Instead,  the Region should conduct a detailed review

of any State-issued permits of concern, focusing attention

on the aspects of permit development which are known to be

troublesome for that State.
     (e)  Formal Audit of State Permitting and Compliance
     On occasion, it is necessary or appropriate for EPA

to conduct a detailed review of State program performance

and permit files.  (This process is separate from the Agency's

Permit Quality Review Program.)  Where this is undertaken,

EPA will generally spend a period of time carefully evaluating

the State's permit and/or pretreatment files.  Audits can be

both diagnostic  (because a formal audit can help locate

specific programmatic problems) and remedial since it may

provide the basis for determining appropriate corrective

action.  The audit is most useful where a State program is

known to be suffering from deficiencies in overall program

operation or management but specific deficiencies have not

yet been identified.  A formal audit may be performed upon

the entire State program, or its scope may be limited to a

specific aspect, such as pretreatment.  Upon completion of

the audit, EPA will evaluate its findings.  These will

normally be submitted to the State in the form of a report.

If deficiencies are found, EPA will generally seek agreement

on prompt corrective action through one of the other mech-

anisms discussed in this part to resolve the problems, such

as delineating commitments in the section 106 workplan.

     (f)  EPA veto of State-issued permits

     As discussed above, EPA is empowered to review State-

issued permits.  In cases where EPA has exercised that auth-

ority, sections 402(a) and (c) of the CWA authorize EPA to

object to (veto) proposed State permits which do not comply with

federal requirements, such as a failure to issue adequate BPJ

permits.  Objection to State-issued permits is part of EPA's

routine State program oversight and its use is not normally

considered a remedy for State program deficiencies.  Regions

are expected to review permits and object when they fail to

meet CWA requirements.  See 40 CFR 123.44.  The Region should


be prepared to issue the permit in the event that the State

is unable to satisfy any important EPA concerns.  It is

essential that this tool be utilized where appropriate in

order to ensure high quality NPDES permits and fulfill EPA's

obligations for effective State program oversight.  Once a

State permit becomes effective, EPA's ability to require

changes in its conditions is little better than that of any

other interested party.

     Where States have chronic permit quality problems,

EPA will strongly consider increasing the scrutiny given to

State permits, thus increasing the frequency of objections.

For example, Regions sometimes-submit informal comments to

States on certain deficiencies rather than phrasing them as

objections to the permit.  Where the State continues to

issue poor permits or does not address EPA's informal com-

ments, the Region will begin to issue the comments as formal

objections, requiring the State to address the concern to

avoid the permit being vetoed after the 90-day period.

Where appropriate, Regions also should consider increasing

the scrutiny given to certain classes of permits that are

normally not carefully reviewed.

      (g)  Cutting EPA-Provided Funding

     This is the reduction or elimination of federal funding

provided under the CWA.  Cutting or reducing federal funding

is a more serious and consequential sanction than the perform-

ance-based grants program discussed above, since the State

cannot obtain the financial assistance merely by meeting stated


 goals,  and  this  procedure can  result  in the elimination of

 funding beyond just the  §106 grant.   A program with serious

 deficiencies often is already  suffering from resource pro-

 blems, and  reduction or  elimination of federal funding may

 only  serve  to exacerbate the problem.  Therefore, cutting

 funding, as distinguished from the performance-based grant,

 should only be considered in serious  cases where other re-

 medies, including the use of performance-based grants, have

 failed to bring  about improved program performance.

      (h)  EPA-State Consent Agreement

      In cases where EPA has identified several different sig-

 nificant deficiencies in a State program,  and informal methods

 have  not resulted in improved State performance, an EPA-State

 consent agreement can be a useful tool to assist the State

 to return to compliance.  Such an agreement is essentially a

 contract between the State and EPA, in which the State is

 required to carry out specified activities according to a

 schedule agreed to by the parties.  For example, such an agree-

ment might, in part,  call for the State to submit revised NPDES

 regulations to EPA for review by a specified date.  The

 schedule would eventually culminate with the promulgation of

 the final revised regulations by a set date.  Such a schedule

may also be developed to eliminate permit backlogs, require

 increased compliance or enforcement activities,  or mandate

 increased State staffing of the program.

     In order to be meaningful, the consent agreement must con-

tain specific consequences for the State's failure to comply

with the agreement.  These consequences can include monetary

penalties or other sanctions.  For example, monetary penalties

could include reduction of the State §106 grant by "X" dollars

per each permit which the State commits to but fails to issue.

Other sanctions might include the staging of a public fact

finding hearing (see below) on program quality in the event

the State misses any of the milestones specified in the

agreement or, the initiation of withdrawal proceedings for

certain types of violations.  The consent agreement may also

obligate EPA to provide financial, legal, technical, or

management assistance to the State.

     A consent agreement should be tailored to the specific

circumstances of the case at hand, taking into account the

State's particular strengths, weaknesses, and needs.  A consent

agreement can be used in conjunction with other remedies.

Finally, the consent agreement may be a useful tool in helping

to resolve actual or threatened legal actions brought by

outside parties.  For example, an environmental group,

otherwise prepared to bring suit or file a petition for with-  •-

drawal, may be willing to settle in exchange for either having

input into, or being made a party to, the terms of a State-EPA

consent agreement.

     (i)  Federal Assumption of State Enforcement

     Sections 309(a) and 402(i) of the CWA provide EPA with

the authority to take enforcement action against dischargers


 in  approved States.  This enables EPA to supplement a State's

 enforcement program.  These EPA enforcement operations are

 part  of on-going program activities and are not out of the


      EPA also has authority under section 309 to assume all

 enforcement responsibilities within the State.  This remedy

 is  available to EPA when the Administrator determines that

 violations by dischargers are so widespread that they appear

 to  result from the State's failure to enforce the requirements

 of  State law.  In these instances, EPA may assume primary

 enforcement responsibility until such time as the State

 demonstrates that it will properly enforce the program.

 Federally assumed enforcement is an unusual occurence, in

many ways equivalent to partial program withdrawal (which is

 not otherwise authorized under the current law).

      (j)  Fact-Finding Hearing on Program Deficiencies

     A public fact-finding hearing or public meeting on the

 State program can be an important step and generally should

be held only after the State has failed to respond to efforts

by EPA to assure prompt corrective action.  Public hearings,

which are not required by the NPDES regulations, are a means

to review concerns about the quality of the State program in

 a public forum.  Such a hearing also provides a mechanism

 for concerned parties to express their views on State program

performance.  A fact-finding hearing can range in scope from

simply soliciting public opinion on program performance

relating to specific issues, to actually being a preliminary

step  in the decision to implement withdrawal proceedings.

(Note: a fact-finding hearing is not a mandatory prerequisite

for the implementation of the withdrawal process.) In addition

to an EPA-initiated hearing, the State may wish to initiate

a hearing itself.  An EPA-initiated hearing should normally

be noticed in the Federal Register.

      (k)   Program Withdrawal

     EPA will choose from the above remedies to develop an

appropriate response tailored to resolve specific program

deficiencies.  If those remedies are unsuccessful in remedying

State deficiencies, EPA can initiate proceedings for program

withdrawal.  Program withdrawal is a drastic remedy which

will only be considered for very serious program deficiencies

after all other options are exhausted.  Program withdrawal

entails the return of full program administration respons-

ibilities to EPA.  The CWA does not permit partial program

withdrawal (e.g., EPA cannot withdraw only a State's pretreatment

program) .                                      ....-•  ^^-.

     Program withdrawal proceedings can be triggered by an

initial investigation in response to EPA concerns, or by a

petition for withdrawal, filed by any interested outside

party, which alleges that EPA's program criteria have not

been met.  EPA has established the criteria for program

withdrawal in 40 CFR 123.63.  These criteria are based upon

CWA requirement? that State programs at all times be consistent

with federal law.  Clearly, a State program may be withdrawn

if the  State's  legal authorities are not consistent with

EPA's minimum requirments for State programs.  This includes

statutory or regulatory deficiencies or judicial decisions

that may limit  the scope of State law.  States also are

required to update their legal authorities when EPA makes

changes in its  regulations, and failure to do so is grounds

for program withdrawal.  For example, since all States were

required to request and receive approval to administer a

pretreatment program by March 27, 1980, any approved State

which has not so requested is a potential candidate for

program withdrawal (see, 40 CFR 403.10(c)).

     EPA's authority is not limited to withdrawing a State

program for legal deficiencies, but extends as well to failure

to adequately administer the State program, including failure

to issue adequate permits or conduct an adequate enforcement .

program, as well as failure to comply with the State/EPA

Memorandum of Agreement.  In practice, these deficiencies may

present a more  significant problem then the legal problems,

even though the latter are important.  EPA regulations specif-

ically mention  failure to issue permits or issuance of permits

that do not conform to CWA requirements as grounds for program

withdrawal.  Thus, continued high permit backlogs and low

permit issuance rates are areas of possible concern in a

State program that may warrant closer investigation.  Inadequate

administration  of an approved State pretreatment program,

 such as a minimal number of POTW pretreatment program approvals,

 may also constitute grounds for withdrawal.

      Inadequate enforcement constitutes still another ground

 for program withdrawal.  (This is separate from federally

 assumed enforcement discussed in paragraph (i), above.)

 Examples of inadequate enforcement include the failure to

 act on violations of permits or other requirements,  failure

 to seek adequate enforcement penalties, or failure to operate

 an adequate inspection program.  Thus State programs with

 continued high rates of noncompliance (as measured by the

 QNCR)  or programs which fail to act promptly to resolve

 noncompliance could be withdrawn even if State legal authorities

 and permit issuance are adequate.

      The program withdrawal process consists of six basic steps:

 (i) The EPA Administrator issues an order commencing the
     withdrawal proceedings and stating the allegations
     justifying the proceedings;

 (ii) The State responds to the allegations;

 (iii)  An adjudicatory hearing is held to probe the sufficiency
       of the program;

 (iv) A proposed decision is issued by the hearing officer;

 (v) The Adminstrator reaches a final decision as to
     whether the program is deficient and what corrective
     action is necessary to avoid withdrawal; and

(vi) Failure to comply with the corrective action within 90
     days results in a second order from the Administrator
     withdrawing the State's program.

 (see,  40 CFR 123.64)

     The withdrawal process,does not have as its central

purpose, .the return of the program to EPA nor does initiation

of withdrawal proceedings mean that the program will actually

be withdrawn.  The withdrawal process is. primaVily a device

to encourage the State to correct program deficiencies in

order to retain NPDES authority.  To date, EPA has not withdrawn

any State NPDES programs.  However, given the current emphasis

upon State program quality, and recent activities by environmental

groups  (such as filing petitions requesting the withdrawal

of a State program), EPA-may consider withdrawal'proceedings

for any_$t^ate which consistently operates its NPDES (including

pretreatment) program in violation of the CWA.