NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
STATE PROGRAM GUIDANCE
for
Development and Review of State Program Applications
and
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.
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PREFACE
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.
rr^
ce J .
anct
Lawrence J . Jensen Date
Assistanct Administator
for Water
U.S. Environmental Protection
Agency
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TABLE OF CONTENTS
NPDES STATE PROGRAM GUIDANCE
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
Statement
(1) NPDES Requirements 3-6
(2) Pretreatment Requirements 3-24
(3) Authority Over Federal Facilities 3-33
(4) General Permit Requirements 3-34
•»K
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
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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
Examples
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
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NPDES STATE PROGRAM GUIDANCE
Introduction
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
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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.
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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
programs.
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
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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.
IV
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CHAPTER ONE
SYNOPSIS OF THE
;% STATUTORY AND REGULATORY
REQUIREMENTS OF' THE NPDES PROGRAM
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,
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CHAPTER ONE
TABLE OF CONTENTS
SYNOPSIS OF THE
STATUTORY AND REGULATORY
REQUIREMENTS OF THE NPDES PROGRAM
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
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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).
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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
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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.
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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
programs.
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
Regulations.
Table One
Recent NPDES Revisions
Date Cite What
9/1/83 48 Fed. Reg. 39611 "Common Issues" Settlement
Agreement
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).
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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
requirements
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
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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
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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.
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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
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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.
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CHAPTER TWO
TABLE OF CONTENTS
PROCEDURES FOR STATE PROGRAM APPROVAL,
MODIFICATION, .REVIEW, AND WITHDRAWAL
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
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CHAPTER TWO
TABLE OF CONTENTS
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
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CHAPTER TWO
PROCEDURES FOR STATE PROGRAM APPROVAL,
MODIFICATION, REVIEW, AND WITHDRAWAL
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
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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.
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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
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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
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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
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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
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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.
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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.
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(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
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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
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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.
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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
Act.
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
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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).
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(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).
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(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
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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.
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(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
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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.
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(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
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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.
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CHAPTER THREE
TABLE OF CONTENTS
STATUTORY AUTHORITY AND
THE ATTORNEY GENERAL'S STATEMENT
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
3-i
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CHAPTER THREE
TABLE OF CONTENTS
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
•*-v
(a) Authority to issue and enforce general permits 3-34
(b) Incorporation by reference 3-34
3-ii
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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,
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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
3-1
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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
v
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.
3-3
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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,
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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.
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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).
3-6
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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
•*s.
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.
3-7
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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
3-8
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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
301(f));
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
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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
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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.
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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.
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(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
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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
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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
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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).
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(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
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convened before rather than after a final decision on the
permit.
(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
basis.
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(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
Judge.
(i) Authority to Modify, Revoke and Reissue or Terminate
Permits
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
discharge.
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-
3-19
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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,
3-20
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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
3-21
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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.
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(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'
•«K
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
acceptable.
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(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
3-24
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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.
3-25
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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).
3-26
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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
3-27
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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.
3-28
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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 .
Requirements
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
«
activities.
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
3-29
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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
Requirements
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
3-30
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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.
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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
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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.
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The Attorney General must therefore certify that there are no
barriers, prohibitions, or exclusions on regulating federal
facilities.
(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
law.
(b) Incorporation by Reference
See discussion of incorporation by reference in
Part B(l)(l) of this chapter.
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CHAPTER FOUR .
TABLE OF CONTENTS
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
123.27)
4-i
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CHAPTER FOUR
TABLE OF CONTENTS
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
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CHAPTER FOUR
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
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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
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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.,
definitions).
(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-
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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
•••s.
programs. To a large extent, this chapter tracks the NPDES
regulations.
B. Required State Program Regulations
(1) NPDES-Regulations
(a) Program Scope and Definitions
4-4
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(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:
4-5
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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
4-6
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o Where a discharge from a new source or a new discharger
will cause or contribute .to violation of water-quality
standards.
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
4-7
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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
4-8
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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
122.44(m)).
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;
and
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. •<-•
boundaries.
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.
4-9
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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
4-10
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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;
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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
by-product;
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
4-12
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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
waters;
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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.
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(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
accordingly.
(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,
1977.
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
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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
standards-
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.
•*i.
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
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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
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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,
122.50)
(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.
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(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-
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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
"mass";
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)).
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(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;
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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
122.44(j));
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.
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(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
122.41(n).)
(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
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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
122.41,122.44,122.48)
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;
and
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- 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;
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o Duty to report any anticipated noncompliance with permit
limits;
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.
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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
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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
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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
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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
variances.
(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
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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
"*ifc
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
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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
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permit application until the applicant has fully satisfied the
application requirements discussed in Part B(l)(b) of this
chapter.
(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
elements:
o The boilerplate conditions set out in section B(l)(d)
above;
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:
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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-
charged;
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.
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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
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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). ^
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EPA's regulations limit the causes for permit modification.
The State may adopt any or.all of these causes as it sees.fit.
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
prohibition;
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.
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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
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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,
124.5)
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
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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
intervention.
(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
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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
dischargers.
EPA rules require State NPDES programs to have regulations
in effect at the time of program approval. This rule generally
applies to State pretreatment programs.as 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.
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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
follow.
(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.
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(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
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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-
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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;
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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
dischargers.
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(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.
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(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.
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(i) Contents of a Local Program Submission (40 CFR 403.8,
403.9)
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
data;
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:
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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
reports;
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
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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).
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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
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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
4-53
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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.
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(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.
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(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.
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CHAPTER FIVE
TABLE OF CONTENTS
THE PROGRAM DESCRIPTION
AND MEMORANDUM OF AGREEMENT
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
5-i
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CHAPTER FIVE
TABLE OF CONTENTS
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
5-ii
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CHAPTER FIVE
THE PROGRAM DESCRIPTION AND
THE MEMORANDUM OF AGREEMENT
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
programs.
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
5-1
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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
support;
- 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
5-2
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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.
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
detailed.
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(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).
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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
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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
-*v
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
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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.
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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
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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
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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
authority).
(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.
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(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
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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;
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c Suspension of EPA's permitting activities;
0 Transfer of permit appeals cases to State Agency
(optional);
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
State;
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;
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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
State.
(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;
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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;
and
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
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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
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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)
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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
development.
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
5-27
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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,
5-28
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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
•*v
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
program.
5-29
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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
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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
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indirect dischargers. These procedures must enable the State
to independently verify data reported by POTWs and indirect
dischargers.
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.
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(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.
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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
facilities.
(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 to.be 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.
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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
program.
-^
(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
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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)).
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CHAPTER SIX
TABLE OF CONTENTS
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
6-i
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CHAPTER SIX
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
i
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
6-1
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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
6-2
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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.
6-3
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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
approval.
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
6-4
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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)
6-5
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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).
6-6
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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
6-7
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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
6-8
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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-
6-9
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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
6-10
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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
6-11
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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
Headquarters.
(b) Legal Authority Reviews
Since the NPDES program is constantly evolving, there
will always be a need to revise and update State programs.
6-12
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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
6-13
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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
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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
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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
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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
•
performance.
(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
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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
Activities
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,
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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
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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
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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.
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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
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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
ordinary.
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
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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
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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,
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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)
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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.
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