THE
NATIONAL
WATER
PERMIT
PROGRAM
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
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THE NATIONAL WATER PERMIT SYSTEM
Implementation of the National Pollutant Discharge
Elimination System pursuant to Section 402 of the
Federal Water Pollution Control Act Amendments of 1972
U. S. Environmental
Protection Agency
Office of Enforcement
and General Counsel
Washington, D.C. 20460
June 1, 1973
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FOR
On October 18, 1972, the Federal Water Pollution Control Act
Amendments of 1972 were enacted. One maj or feature of this sweeping
revision of the Federal water pollution laws was the establishment of
a new national permit system. Section 402 req4rea that industrial
municipal, and other point source dischargers obtain permits for
the discharge of any pollutants into the navigable waters of the
United States, and it provides for a closely knit Federal—State part-.
nership to administer the program.
This program description provides a summary of the mlin features
of the national permit system. It includes the principal aspects of
the tatute itself, important regulations and guidelines which have
been promulgated or are being developed, and major policy directives
issued by the EnVironmental Protection Agency. It also describes
the background of the program, including relationships to the Refuse
Act Permit Program announced December 23, 1970, and provides other
factual information concerning the scope of the program and the manner
of its implementation and operation.
The purpose of this program description is to provide information
to the public concerning this program. Section 101 of the new law
calls for EPA and the States to provide for, encourage, and assist
public participation in connection with all activities under the
law. In furtherance of the policy of encouraging and assisting public
participation, EPA circulated this description in draft form (dated
February 7, 1973, and entitled “Facplanatory Statement: Implementation
of the ‘National Pollutant Discharge 1 liinination System’ Pursuant to
Section 402, Federal Water Pollution Control Act Amendments of 1972”)
among citizen organizations and other public groups. Many helpful
camnents were received and incorporated into this final edition.
This program description is av i 1 pble upon repiest and will be
given a broad distribution, It may be revised from time to time in
order to asaimilate policy decisions and new developnents. It is
hoped that interested citizens will take the time to read this
description and otherwise learn about and participate in the national
effort to reduce and eliminate water pollution. Further copies may
be ordered by writing to the Office of Water Enforcement, Permit
Program Diviaion Room 706, Crystal Mall Building #2, Environmental
Protection Agency, Washington, D. C. 20460.
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TABLE OF CONTE NTS
Page
I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 1
A. Prior Water Pollution Control Legislation............. 1
B. The Permit Program under the Refuse Act............... 3
II. The FWPCA Amendments of 1972. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Objectives of the Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Major Changes......................................... 5
1. Enforcement Mechanisms Replaced.................. 5
2. Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Key Definitions.................................. 6
4. National Pollutant Discharge Elimination System.. 6
5. SpecificEffluentLirnitations.................... 7
C. A New Regulatory Scheme Established.... ...... . ........ 7
III. Re iirementsoftheNewAct................................ 7
A • The Effluent Limitations. . .. . . . . . .. . . . . . .. . . . . . . . . . . . . 7
1. GeneralEffluentLinatations.....................
a. Best Practicable Control TechnoJ O T and
Best AvailableTechno1ogy .................. 9
b. Effluent Limitations for Publicly
OwnedTreatmentWorks.....................lO
c. Pretreatment Effluent Standards. .. . ......... 10
d. Toxic Pollutants Effluent Standards......... U
2. New Source Performance Standards................. 12
3. WaterQualityStandards..........................l 2
B. Other Provisions of the 1972 Amendrnents............... 13
1. SpecialPermitPrograms..........................l3
2. Discharges Regulated other than under Permit
Authority........ ............................. 13
3. Categorically Prohibited Discharges and 14
Unregulated Discharges. ...... ... . ..... .
IV. The National Perma.t System. . . . . . . . . . . . . . . . . . . . . . . . • • . • . . • • • 15
A • Interim State Programs. . . . . . . . . . . . . . . . . . . . . . . • . . • . . • . . 15
B. Final Approval of State Permit Programs............... 16
1. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . 16
2. MinimumProceduralElements......................1 6
C. Federally0peratedPermitProgram..................... 19
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Page
V. Scope of Federal Review Authority over State
22
A. Review of Ihdividual Permits......................... 22
B. Review of Total State Prograzn.........................
VI. Enforcement.............................................,.. 23
A. Federal Enforcement of Conditions of Individual
State Permits....................................... 23
B. Federal Enforcement of AU State Permits.............. 23
C. Types of Federal Enforcement Actions (Federai
and State Permit Conditions)......................,. 23
VII. Public Part icipation and Citizen Suits.................... 24.
VIII. Other ( iestions and Answers. .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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I. Introduction
On October 18, 1972, Congress passed the Federal Water Pollution
Control Act Amendments of 1972. It has been acclaimed as “one of
the most significant, most comprehensive, most thoroughly debated
pieces of environmental legislation ever to be considered by the
Congress.” It provides new enforcement tools for combating pollution
and increased Federal grants for construction of waste treatment
facilities, and authorizes additional funds for research into problems
and solutions to pollution. Legislated protection of this country’s
waters is not a new phenomenon Nor is the new Act’s mechanism for
controlling pollution, a system of permits for discharges into the
waters, a novel regulatory scheme.
A. Prior Water Pollution Control Legislation
The first comprehensive Federal Water Pollution Control Act was
enacted in 1948 on a temporary basis and extended in 1952. It became
permanent legislation in 1956 and was amended in 1961 to establish a
more effective program to abate pollution of navigable as well as
interstate waters which endangered the health or welfare of persons.
The method of enforcement was a Federal—State enforcement conference,
with participation by local officials and other interested persons,
to discuss pollution problems of a particular location and to make
recommendations about those problems. Public hearing and court
action followed the conference if the recommendations were not
followed.
In 1965, the FWPCA was again amended, this time by the Water
Quality Act. Under it each of the States, the District of Columbia,
Puerto Rico, the Virgin Islands and Guam were given the opportunity
for the first time under Federal law to establish water quality
standards for interstate waters including coastal waters. If a
State did not set such standards, the Federal Government did.
Water quality standards were set by classifying bodies of water
for different levels of water use such as drinking, industrial water
supply, or recreational use. Then the characteristics or criteria
which the water had to have to support these uses were specified. A
third part of the standards was the plans established to implement
and enforce the criteria. When approved by the Federal authority,
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such standards (criteria and plans) became the Federal—State standards
applicable to those waters.
Any discharge which reduced the quality of the receiving water
below the criteria or in violation of an implementation plan was
subject to enforcement action. States have always had the primary
responsibility for enforcing water quality standards, but, because
standards were federally approved and enforceable, the Federal govern-
ment could enforce them by bringing an abatement suit, after at least
160 days’ notice of violation to the dischargers and other interested
parties.
Even earlier than the 1948 F PCA, Congress passed the River and
Harbor Act for the protection of the Nation’ s navigable waterways.
Enacted in the late 1800’s, this Act provided for the maintenance,
protection, and preser ration of the navigable waters of the United
States, inclading regulation by means of permits for construction 1
dredging, and discharges in those waters. Section 13 of the River
and Harbor Act of 1899, which by itself is known as the Refuse Act 1
literally prohibited the discharge or deposit of refuse matter into
navigable waters and their tributaries unless authorized by a permit
from the Secretary of the Army. The River and Harbor Act also pro-
vided enforcement measures, civil and criminal penalties, against
any discharger of refuse who had not obtained a permit. Navigable
waters, to which the River and Harbor Act applies, are those waters
which are presently, or have been in the past, or may be in the
future susceptible for use for purposes of interstate or foreign
coninerce.
The Refuse Act, as a section of an Act generally intended to
prevent impediments to navigation, was initially used for naviga—
tiona]. irposes. In recent times, with rising concern about
increased water pollution, the potential use of the Refuse Act for
water pollution control was recognized. With a focus on the discharge
itself, it was seen as an enforcement tool complementary to the
enforcement provisions of the FWPCA, which focused on the quality of
the receiving water. The Refuse Act could be used to enforce water
quality requirements.
In 1970, the Department of the Interior, then charged with
administering the water pollution control program, announced that
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the Refuse Act would be utilized more fully, and the Department of
Justice issued guidelines for Refuse Act prosecutions against dis—
chargers without permits. The Department of the Army announced its
desire to initiate a Refuse Act Permit Program. Finally, by
Executive Order on December 23, 1970, the President directed the
establishment of a Federal permit program utilizing the Refuse Act,
and requiring close coordination between the Army Corps of Engineers
and the Environmental Protection Agency to which Federal pollution
control activities had been transferred in early December 1970.
Effective July 1, 1971, the discharger of any industrial wastes into
navigable waters or their tributaries was required to have applied
for a permit from the Corps.
The Federal Government thus combined its resources and legal
authorities to maximize control over water pollution. In addition
to enforcement conferences, lAO—day notice proceedings, and civil
and criminal Refuse Act prosecutions, a Refuse Act Permit Program
was established and functioning for approximately one year.
B. The Permit Program under the Refuse Act
Because the Refuse Act authorized the Secretary of the Army to
issue permits for discharges, the Army Corps of Engineers had the
primary responsibility of administering the Refuse Act Permit Program.
The Corps received applications from dischargers for permits,
determined the effect of the discharge on anchorage and navigation
and formally issued any permit. EPA reviewed these applications and
advised the Corps on the effect of the discharge on water quality.
Applicants for a Refuse Act permit also had to receive a certifica-
tion from the State in which the discharge was to be made that the
discharge would not violate water quality standards established under
the Federal Water Pollution Control Act. Therefore, before issuance
or denial of a permit, the Corps received advice from EPA and the
State as to whether and on what conditions the permit should issue.
By December 21, 1971, only 20 permits had been issued under the
program. On that date, the new program came to an abrupt halt • A
United States District Court judge enjoined the Corps from issuing
Refuse Act permits. The injunction in the case, Kalur v. Resor , was
based on two grounds. First, the Corps of Engineers acted beyond
its authority if it issued permits for discharges into tributaries
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of navigable waters . Literally, the Refuse Act only authorized the
issuance of permits for deposits into navigable waters, although the
Act prohibits discharges and deposits into navigable water and non—
navigable tributaries, Secondly, the District Court judge determined
that the Corps in issuing permits under the Refuse Act was not
exempt from the requirement 8 of the National Environmental Policy Act
of 1969. That Act required all Federal agencies undertaking any
major Federal action significantly affecting the quality of the human
environment to prepare an environmental impact statement for that
action. The Court held that until the Corps modified its operating
regulations to allow the preparation of impact statements covering
water quality aspects of Refuse Act permits, the issuance of permits
was to be discontinued. The Government, at EPA’s insistence, appealed
the Court’s decision.
The Kalur decision did not mean the end of EPA’s pollution
coutrol program. Pending the resolution of issues raised by the
Kalur decision on appeal, EPA continued to process the permit appli—
cations at hand in preparation for the possible reactivation of the
Refuse Act Permit Program or passage of new legislation authorizing
the issuance of permits.
At the same time, EPA had to decide how to keep alive the
momentum created by the Refuse Act Program and other pollution control
statutes. The Agency initiated the Abatement Commitment Letter pro-
gram which sought, inform 1 ly, the vohmtary commitment of industrial
dischargers to commence abatement plans. This program was utilized
along with the other enforcement measures so that as of September 30,
1972, 59 enforcement conferences had been undertaken, 166 180-day
notices had been served, some 100 abatement letters were signed and
405 civil and criminal actions had been initiated from December 2,
1970, to September 30, 1972.
II. The FWPC A Amendments of 1972
A. Objectives of the Act
The Refuse Act Permit Program was still enjoined in October of
1972 when Congress enacted the FWPCA Amendments of 1972 providing a
new comprehensive program of pollution control. As stated in the
1972 Act, it is the national goal that the discharge of pollutants
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into navigable waters be eliminated by 1985, and that, as an interim
goal whenever attainable there be achieved by July 1, 1983, water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in and on the
water. The 1983 goal is an objective which carries with it defined,
specific enforcement mechanisms while the 1985 goal is an ideal
toward which Congress intended the country to strive. To reach these
goals, the Act requires that a discharge of waste or of waste—
containing water be of a specified, improved quality before its
release from a point source to the receiving water, or in some cases
that the discharge be prohibited. To assure that the improved
quality is attained, the Act provides a new authority to the Federal
and State governments to continue and fully develop a national permit
system,
B. Major Changes
1. Enforcement Mechanisms Replaced
The new Act terminates the use of enforcement conferences and
1 O—day notices and ends the Refuse Act Permit Program. It gives
immunity from prosecution under cert.ain key sectio is of the Act, or
under the Refuse Act until December 31, 1974, to any person who has
applied for a discharge permit, if the application has not been
processed and if the discharge is one susceptible to a permit.
2. Jurisdiction
The new Act has jurisdiction over all navigable waters as does
the Refuse Act, but, as defined by the Act, navigable waters mean
“the waters of the United States.” Included are all interstate
waters, all navigable waters, tributaries of navigable waters and
any intrastate non—navigable rivers, streams, or lakes utilized by
industries in interstate commerce, or utilized by interstate
travelers for recreational or other purposes. The Act also applies
to the territorial seas (the belt of seas extending three miles from
the coastline), to the contiguous zone (the high seas contiguous to
the territorial sea but not to extend beyond 12 miles from the coast-
line), and to the ocean beyond the contiguous zone.
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3. Key Definitions
The Act specifically defines pollutants and point aOurce.
Pollutants are dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biologi-
cal materials, radioactive materials, heat, wrecked or discarded
eq .iipment, rock, sand, cellar dirt and industrial, municipal and
agricultural waste discharged into water. Point sources are
“discernible, confined and discrete conveyances” which means, for
example, any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container rolling stock, vessel, or confined animal feeding
facility.
4. National Pollutant Discharge Elimination Sjystem
The new permit system is called the National Pollutant Discharge
Elimination System (NPDES). It is a national system because it is
effective nationwide and involves Federal and State participation,
with the objective being State—administered permit programs.
Full implementation of the program by States may take time.
Before then, the Act provides for either a limited life interim
State program or a Federal permit program. After a State has imple-
mented a NPDES permit program, Federal review and monitoring of the
program will continue to insure that the purposes of the Act are
carried out. Thus, the program is based on sri effective Federal—
State part nership.
The scope of activities regulated under the permit authority
is wide. Some 40,000 of the Nation T a 300,000 industrial water users
will, be subject to direct permit regulation. Municipal waste treat-
ment sources are also point sources at which this pollution control
program is aimed. Between 10,000 and 13,000 communities will be
affected. Discharges from agricultural sources are, under certain
circumstances, subject to the new permit authority. Some examples
are the animal wastes from concentrated confined feedlots which
reach surface water, and irrigation return flow when discharged from
channels, drains, or other conduits. Acid mine drainage from both
surface arid subsurface coal mines, where such drainage is from
discrete conveyances, will be regulated. Discharging oil rigs,
whether onshore or offshore, are also included.
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5. Specific Effluent Limitations
A major revision from prior legislation is the requirement that
specific limitations must be applied to discharges. Limits are
placed on the amount of pollutants in discharged wastewater or on
the volume of wastewater discharged or the number and amount of
solid waste discharges. This is one of the Act’s principal methods
for attaining the l9 3 and l9 5 goals.
C. A New Regulatory Scheme Established
Any permit issued under the National Permit System will impose
on a discharger of pollutants from a point source certain require-
ments designed to attain the goals of the Act: Every discharger
must make application for a permit and in so doing provide the
permitting authority with data on the discharge. Each issued permit
will contain conditions which will insure that the discharge will
meet effluent limitations, including schedules of compliance, water
quality standards, new source performance standards for new plants
and factories 7 and toxic standards. Facilities discharging into a
municipal waste treatment facility do not require a discharge permit,
but the discharger must comply with pretreatment standards promul-
gated under the Act. Many permits will require the discharger to
monitor the discharge, to keep records of monitoring activities and
report periodically on what is occurring in regard to the discharge.
Throughout the permit issuing process, there is to be opportunity
for extensive public participation: Public notice, designed to
inform all interested parties, will be given of each proposed permit.
In many cases, especially if there is significant public interest,
open public hearings must be held to explore all issues raised con-
cerning the proposed permit. Each of these elements of the new
system will be more fully discussed hereafter.
III. Requirements of the New Act
A. The Effluent Limitations
Prior pollution control statutes did not specifically provide
for effluent limitations, but the Federal Government’s pollution
control program did. Recognizing the need for standard discharge
limits within industrial categories, the Agency contracted
for research and studies to determine what secondary treatment or its
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eq iivalent was for 22 basic industries. EPA’s enforcement personnel
used these studies in part to develop a draft of effluent guidance
for the 20 industrial categories which contributed to a high percentage
of industrial pollution. This proposed effluent guidance received
Agency—wide review and was corrinented on by industry technical per-
sonnel. The effluent guidance was distributed to the ten EPA
Regional Offices to be used as a guide in the develo xnent of condi-
tions for Refuse Act permits.
The guidance had two separate categories of numbers. The first
category of numbers represented the Agency’ s best determination of
“beat practicable control technology,” a term present in the new Act 1
and one which will be explored later. An industry had to apply to
its discharges by January of 1976 (as now applied, July of 1977)
treatment which made use of the “best practicable control technology.”
If a discharger had already begun a substantial treatment program
whiàh would be complete by July 1 1974, a second level of less
stringent limitations was applicable initially, with the more stringent
numbers to be applied upon reissuance of the permit. In addition,
social, economic, and other factors were to be considered in applying
the guidance.
The new Act also provides for uniform effluent limitations for
industrial categories and achievement dates. Congress set two interim
dates of July 1, 1977, and July 1, l9 3, by which different levels
of treatment are to be reached. It is a timetable based on advances
in tecbnology.
1. General ffluent Limitations
For all dischargers other than publicly owned treatment works,
not later than July 1, 1977, effluent limitations are to be achieved
which represent the application of the “best practicable control
technology currently available.” At the seine time, all publicly
owned waste treatment facilities must utilize “secondary treatment”
and, if an industrial discharger sends its wastes through a publicly
owned treatment works, certain “pretreatment standards” must be met.
An additional reajiirement is that by the July 1977 date, effluent
limitatiens may be imposed so that any State law will be met.
later than July 1, l9 3, effluent reajiirements must be met which
represent the “best available technology economically achievable,”
and, for publicly owned waste treatment facilities, which represent
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the application of the “best practicable waste treatment technology.”
Any other applicable pretreatment standards must also be attained
by that date. Special standards for toxic substances must also be
observed for both the 1977 and l9 3 periods.
The target dates are 1977 and 19 3—they are the outside limits
for compliance. The Act envisions that in meeting effluent limita-
tions there will be stages of compliance including attainment of
levels of substantial improvement even before these dates. There
will be imposed on discharges a schedule of remedial measures. This
schedule will appear as conditions set out in a NPDES permit.
a. Best Practicable Control Techno1o v and
Beet Available Technology
The Act charges the Administrator with the task of publishing
regulations providing “Guidelines” for effluent limitations for
point sources after he has consulted with appropriate Federal and
State agencies and other interested persons. These effluent limita—
tions are the ones which shall require the application of the best
practicable control technology currently available for the 1977
target date and best available technology economically achievable
for the l9 3 target date. The Administrator will identify three
things in the regulations.
First, he will interpret and give meaning to the terms “best
practicable” and “best available” when applied to various categories
of industries. In defining “best practicable” and “best available”
for a particular category, he is to take into account such factors
as the age of the equipment and facilities involved, the process
employ.ed, the engineering aspects of the application of control
techniques, process changes, and non—water quality environmental
impact (including energy requirements). In assessing “best practi-
cable control,” the Administrator is to make a balancing test
between total cost and effluent reduction benefits. In some in-
stances, this test may eliminate the application of technology which
is high in cost in comparison to the minimal reduction in pollution
which might be achieved. Cost is also a factor in determining “best
available.” “Best available” technology is the highest degree of
technology that has been demonstrated as capable of being designed
for plant scale operation, so that costs for this treatment may be
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much higher than for treatment by “best practicable” technology.
Yet economic feasibility will also be a factor in interpreting “best
available” treatment. Cost effectiveness for either standard is to
be confined to consideration of classes or categories of point
sources and win not be applied to an individual point source
within a category or class.
Second, having interpreted “best practicable” and “best avail-
able” the Administrator is to promulgate guidelines which will be
the formula for determining what “effluent limitations” are to be
imposed on dischargers. In these guidelines, he is to identify the
degree of effluent reduction attainable through the application of
the best practicable control and best available technology in terms
of amounts of constituents and chemical, physical, and biological
characteristics of pollutants. These guidelines can then be applied
in setting specific effluent limitations on dischargers.
Third, the regulations are to identify control measures and
practices to eliminate the discharge of pollutants.
b. Effluent Limitation for Publicly
Owned Treatment Works
Not later than July 1, 1977, publicly owned treatment works must
meet effluent limitations based on “information” which the Act
requires the Administrator to publish. The “information” is to
describe the degree of effluent reduction attainable through appli-
cation of secondary treatment. The information will be in terms of
amounts of constituents and chemical, physical, and biological
characteristics of pollutants.
The Administrator is also required to publish information on
alternative waste treatment management techniques and systems avail-
able, as the basis for the 1983 effluent limitations. The “informa-
tion” issuances serve as the base for determining the limitations.
c. Pretreatment Effluent Standards
In view of the Act’s requirement that discharges from private
point sources into publicly owned treatment works are to comply with
applicable pretreatment effluent standards by 1977 and 1983, such
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standards have to be set by the Administrator. He is to publish
proposed regulations setting these standards and soon thereafter
promulgate them. The pollutants covered are those which are deter-
mined not to be susceptible to treatment by such treatment works or
which would interfere with the operation of such works. The regula-
tions must specify a time for compliance not to exceed three years
from their prc nulgation. The Administrator is to designate the
category or categories of sources to which such standards shall apply.
Pretreatment effluent standards may be more stringent for l9 3 since
the standards are to be updated from time to time.
d. Toxic Pollutant Effluent Standards
The 1972 Act requires the Administrator to establish effluent
standards or prohibitions controlling toxic pollutants. Toxic
pollutants are defined as those pollutants, or combinations of
pollutants which after discharge and upon exposure to any organi. am
either directly or indirectly, will “on the basis of information
available to the Administrator” cause death, disease, or other
abnormalities in the organism or its offspring. The drafters of the
Act had in mind certain substances such as mercury, beryllium,
arsenic and cadmium.
The Administrator is to issue a list of toxic pollutants and
then establish standards for those toxic pollutants listed. In deter-
mining effluent standards for those toxic pollutants which he desig-
nates as toxic, the Administrator is to consider the pollutants’
toxicity, persistence, and degradability, as well as the presence of
organisms in any affected waters. The Administrator is to designate
categories of sources to which the standards shall apply. The
standards are to go into effect no more than one year after their
promulgation. This means that dischargers must be in compliance
within the same time period. The standards are to be reviewed at
least every three years arid may be revised at any time.
Because of the dangerous nature of toxic materials, the Act
authorizes State and Federal authorities to place controls on the
discharge of toxics even before the promulgation of toxic standards.
Either through permit conditions or other enforcement measures toxic
d!soharg s will be regulated in accordance with the objectives of
the toxic pollutant discharge control provision.
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2. New Source Performance Standards
Most new factories, industries, etc., will be subject to
national standards of performance. EPA is to publish a list of
categories of sources which must include 27 major types of industry
and then issue regulations establishing Federal standards of per—
formance for the new sources within such categories. These standards
are to assure that new stationary sources of water pollution are
designed, built, equipped and operated to minimize the discharge of
pollutants. The standards are to reflect the greatest degree of
effluent reduction which the Administrator determines to be achiev-
able through application of the best available demonstrated control
technology, processes, operating methods, or other alternatives.
“Best available demonstrated technology” has been described as those
plant processes and control technologies which, at the pilot plant
or semiworks 1e el, have demonstrated that both technologically and
economically they justify the making of investments in new production
facilities.
At the same time EPA promulgates new performance standards, it
is to provide pretreatment standards for newly constructed point
sources discharging into public treatment facilities.
3. Water Q aality Standards
The new Act does not ignore the concept of water quality
standards in 1977 and 1983 achievements. Water quality standards
which were adopted and enforced under the old FWPCA for interstate
waters are continued in effect and can be updated, and new ones are
to be established for intrastate water bodies where not previously
adopted by the States. II’ water q 1ity standards cannot be protected
by the application of best practicable control technology for industries
and secondary treatment f or municipal wastes before l977 then effluent
limitations must be achieved which will protect water quality standards.
Before 1983 if best available treatment and its equivalent for munici-
pal facilities wifl not contribute to attainment of water quality
d ich will protect public water supplies, agricultural and industrial
uses, protection of a population of fish and wildi i i ’s , and allow
recreational activities, more stringent effluent linritations are to
be imposed.
An overall view of the conditions of the waters arid of the dis-
charges therein will be provided in a report which is to be prepared
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for Congress on or before January 1, 1974. This water quality
report will include an inventory of all point source discharges and
will identify which navigable waters are of the quality, or can
reach the quality by 1977 or 1983, that provides for protection of
fish and shellfish populations and allows recreational activity.
B. Other Provisions of the 1972 Amendments
1. Special Permit Programs
Several special (non—NPDES) permit programs are established by
the new Act. The Administrator of EPA may permit discharges of
pollutants associated with approved aquaculture projects. The
Secretary of the Army in conjunction with the Administrator of EPA
may issue permits for the discharge of dredged or fill material into
navigable waters at specified disposal sites. In addition, the
disposal of sewage sludge resulting from the operation of a treatment
works which causes pollutants from the sludge to enter navigable
waters is prohibited except in compliance with a permit issued by a
State or by the Administrator of EPA.
2. Discharges Regulated other than unde ’ Permit
Authority
Certain other discharges of pollutants from point sources are
not controlled by the Act’s permit systems, but are controlled by
some mechanism under the Act. Sewage which is discharged from
vessels, clearly a point source, is the subject of a special provision
dealing with the design, manufacture, installation and use of marine
sanitation devices.
Additions of other pollutants to the contiguous zone or ocean
from vessels and other floating craft are excluded from the permit
authority, but are not totally free of regulation. The Act creates
liabilities for spills of oil and spills of hazardous substances
from vessels and from onshore and offshore facilities into navigable
waters and waters of the contiguous zone. In the ocean waters,
including the territorial seas and contiguous zone, vessels are
subject to another statute, the Marine Protection, Research, and
Sanctuaries Act of 1972, which also has a permit program.
Permits for discharges from point sources must reflect considera-
tion of toxic pollutants, butt since some toxic pollutants may be
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prohibited altogether by the Administrator and any “source” is subject
to toxic limitations, regulation goes beyond compliance with a permit.
Enforcement actions such as court suits, fines and penalties are
envisioned when toxics are being, have been, or will be discharged
from both point and non—point sources.
Discharges associated with “secondary recovery” in the produc-
tion of oil and gas are excluded from the permit program. This
exclusion includes waters gasp or other material which is injected
into a well to facilitate the production of oil or gas, or water
derived in association with oil and gas production and disposed of in
a well. Yet this activity is not beyond regulatory control. The
wells so used must have been approved by the State in which the well
is located and the State must have determined that the injection or
disposal will not result in the degradation of ground or surface
water resources.
3. Categorically Prohibited Discharges
and Unregulated Discharges
Congress has provided that it is unlawful to discharge any
radiological, chemical, or biological warfare agent or high—level
radioactive waste into the navigable waters. No permit or exception
can be given to such discharges. On the other hand, discharges from
properly functioning marine engines are not expected to be treated as
unlawful or to be regulated. No section of the Act specifies this
exemption, but Congress, in discussing the bill, said they intended
this exception.
As a policy matter, EPA has excluded certain discharges from the
requirement of’ an NPIES permit. These include discharges from storm
sewers when the discharges are uncontrolled and composed entirely
of stormwater and most discharges of shower, laundry and galley
wastes from vessels. In addition, EPA has excluded from the require—
mant of a permit nearly all agricultural and silvicultural activities
except animal confinement facilities of certain proportions, certain
types of fish and aquatic animal production facilities, and irriga-
tion return flow to navigable waters from point sources involving
3,000 acres or more of irrigated land. The Agency decided to exclude
the numerous minor agricultural projects because the pollution
problems are small in relation to the administrative problems of
processing the vast number of agricultural discharge application forms.
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On the other hand, these exclusions do not allow the more substan-
tial agricultural projects which do create pollution problems to go
unregulated.
Finally, pollution from non—point sources is not specifically
regulated by the Act, except where a special provision, such as for
disposal of dredge and fill materials, so provides. However, Congress’
concern about non—point sources of pollution is shown in that, among
other things, it directed the Administrator to provide information
and guidelines which will identify and evaluate problems associated
with such sources of pollution.
IV. The National Permit System
The Environmental Protection Agency was given three important
jobs to do under the new Act in establishing the NPL]ES: (1) to
authorize or reject requests for interim State permit programs; (2)
to approve or disapprove final State permit programs; and (3) to
administer any permit program not State—operated,
A. Interim State Prqg ams
From October 1 , 1973, the date of’ enactment of’ the new Act,
until March 19, 1973, a State could receive interim authority to
administer a State permit program. During that time, the Administra—
tor of EPA authorized 1 States to issue NPJ]ES permits for discharges
into navigable waters within the jurisdiction of the States.
The Administrator of EPA was to grant interim authorization to
a State, which he determined had the capability of administering a
permit program which would carry out the objective of the Act. This
standard was the only criterion set forth in the Act relating speci-
fically to interim authorization—whether the State’s program met the
objective of the Act. The objective of the Act, as it relates to
permit requirements, is the prohibition of discharges which are not
in conformance with effluent limitations, water quality standards,
schedules of compliance, etc., provided for in the Act. In particular,
the permits issued under interim State programs were to impose effluent limi-
tations which represented application of “best practicable control tech-
nology currently available” for industrial sources and secondary treat-
ment for municipal sources, or compliance with applicable water quality
standards, whichever was more stringent, by July 1977. The State had
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to have the capability of imposing these re jirements through its
existing permit program.
B. Final Atrnroval of State Permit Programs
The grant of interim uthorizatioij was to be a step toward
final approval where the State desired to administer the permanent
NPDES. The Administrator must approve a permanent program submitted
by a State (or interstate agency, where appropriate) unless he
determines that the State does not possess adequate legal authority
in State law to perform certain acts. The State program must also
provide for certain procedural steps.
1. Authority
The State must have authority to (a) issue permits for terms not
exceeding five years; (b) adequately notify members of the public,
other States, and the Secretary of the Army of pending permit appli-
cations; Cc) abate violations or permits, with authority to impose
civil and criminal penalties; (d) insure that the State permitting
agency receives adeqpate notice of new introductions of pollutants
of substantial changes in the volume or character of pollutants
introduced into publicly owned treatment works, and (e) to insure
that any industrial user of publicly owned treatment works complies
with pretreatment effluent standards and other requirements. The
State also must have an approved continuing planning process before
approval of its permit program can be granted,
2. Minimum Procedural Elements
In addition to legal authority a State permit program cannot
be approved unless it conforms to certain guidelines prescribing
procedural steps and other program requirements. The Act directs
that these guidelines must include, but are not limited to, monitoring
and reporting reqjiirements (including procedures to make information
available to the public), enforcement provisions and requirements for
funding, personnel i f’ications , and manpower.
These guidelines were issued in final form in the Federal
Register on December 18, 1972. Their development began more than a
year earlier when EPA, in anticipation of the new Act, invited a
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group of State representatives to develop the required guidelines in
cooperation with the Agency • Throughout a series of drafting sessions 1
the work group focused its efforts on three main areas of concern:
State authority, State resources, and State procedures. The prepara-
tion of these guidelines was dictated by the need to fashion a strong
and uniform natioal permit program with State procedures consistent
with and as strong as the Federal program, without being unduly
costly, time—consuming, or burdensome to States.
The work group was not concerned with past performances of
particular State programs. The new Act contemplates an opportunity
for even the weakest State program historically to wipe the slate
clean. Nor were the guidelines designed to allow a certain number of
existing State programs to qualify or to otherwise relate to existing
State legal authority.
The guidelines contain the following requirements:
a. A State must have a statute or regulation which
prohibits the discharge of pollutants.
b. There must be basic procedures for the filing of
permit applications and the exchange of information between
Federal and State agencies all aimed at the goal of obtaining
adequate data about the discharge.
c. The State or interstate agency is to formulate
tentative views on conditions for the permit being sought,
draft a proposed permit and then provide for notice and
public participation in the decision—cnaking on that permit.
The choice of methods for public notice of a permit appli-
cation include posting a notice in public places, newspaper
publications and mailings to interested groups. Other
appropriate government agencies are to be notified. The
agency is to receive the written comments of any interested
party and the written views and recommendations of other
government agencies.
d. An opportunity must be given for the applicant, any
affected State or country, or interstate agency or EPA, or
other government agency, or any interested persons to request
a public hearing. After notice has been given, the hearing
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is to take place in the geographical area of the proposed
discharge, or other suitable place.
e, The procedures of the State or interstate program
must insure that each permit issued will be conditioned with
effluent limitations 7 other standards and limitations, or
prior to promulgation by EPA of standards and limitations,
effluent conditions designed to achieve the requirements of
the Act.
Permits must provide that these requirements will
be achieved by means of appropriately scheduled or phased
compliance. Generally, the requirements are to be met not
later than July 1, 1977, the target date.
i. A State or interstate agency cannot issue a permit
for discharges of warfare agents or high—level radioactive
waste, or a discharge which the Secretary of the Army has
found will substantially impair anchorage and navigation, or
a discharge to i hich the EPA Administrator has objected in
writing, or a discharge in conflict with a plan approved
under an areawide waste management provision.
g. Procedures of the State program must allow for
requirements in permits dealing with monitoring, recording
and reporting. Perrnittees may have to install, maintain
and use monitoring equi inent or methods to measure such
factors as flow and composition of the discharge.
h. The State must be able to modify, suspend or
revoke permits and must have the powers and procedures
necessary for recourse to criminal, civil and civil injunc-
tive remedies. Maximum civil penalties and criminal fines
recoverable at the State level are to be comparable to
similar maximum amounts recoverable at the Federal level,
or represent an actual and substantial economic deterrent.
1. A State or interstate agency in submitting its
program for approval must provide information about the
manpower and resources of the State program. Relevant
considerations are the number of employees, their qualif i—
catioris and functions, the costs of administering the program
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and funding available for such costs and a descript 1 ion of
the kinds arid number of industries under the State’s
jurisdiction.
As part of the structure of many State or inter-
state agencies, designated boards or bodies will approve
NPDES permits. The State or interstate agency mast give
assurances that no member of the approving board or body,
including the Director, will be a person who receives or
has during the previous two years received, a significant
portion of his income directly or indirectly from permit
holders. “Significant portion” has been interpreted to
mean lC of gross personal income for a year.
j. Participating State programs must have procedures
to control the disposal of pollutants into wells. where
the applicant has proposed well disposal as a way to meet
terms of a proposed permit, the State must prohibit the
proposed disposal or condition the permit with terms to
prevent pollution of ground and surface water end protect
public health and welfare.
C. Federally rated Permit_Pro m
The Act contemplates that the Administrator of EPA will issue
permits in the early phase of the NPDES program and even beyond
that if a State does not apply for or receive either interim authori-
zation or approval of its permit program. In these cases, EPA will
begin the process of issuing permits in coordination with the States.
The Act authorizes the Administrator to issue permits for the
discharge of any pollutant or combination of pollutants upon the
conditions that such discharge will meet all applicable requirements
of the Act relating to effluent limitations 7 water quality standards 7
other effluent standards, iripections, monitoring arid guidelines
establishing ocean discharge criteria. Even before these standards
and limitations are established 7 he can issue permits conditioned
in any way he determines as necessary to carry out the provisions
of the Act. Since it will take disehargers some time to bring their
facilities into compliance, the Agency has decided to begin issuing
permits to get diachargers onto abatement schedules right away so
that the 1977 requirements can be met. In addition, the Agency already
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has some indications of the effluent reductions which the final
standards and limitations will represent. The effluent guidance
which was developed for use in the Refuse Act program will, where
applicable, be used as the basis for setting the effluent limitations
before final promulgation of such limitations and standards. The
Agency will also issue permits before promulgation of all the effluent
standards and limitations in those cases where the water quality
standards are known and dictate the effluent limitations to be imposed.
The procedures to be followed by EPA in processing and issuing
permits were published in the Federal Register on May 22, 1973. With
the exception of such subjects as manpower and resources, and disposal
of pollutants in wells, over which the States have authority, the
regulations for the Federal permit program provide for the same or
stricter requirements than the guidelines for State programs.
After determining which applications will require EPA’ a issuance
of a permit, the Agency will prepare and issue public notice as to
those applications. Interested persons may submit written comments
during the 30—day period following the issuance of public notice.
Unless hearings are held as described below, after this comment period
a permit will be issued or denied.
If the Regional Administrator finds there is significant public
interest, he may call a general public hearing on any permit or group
of permits. Any proposed permit or permits considered at the hearing
may thereafter be denied, or issued, or modified on the basis of in—
formation presented at the public hearing with notice of such action
to hearing participants.
An adjudicatory hearing may be the next step after action is
taken on a permit considered at a public hearing. If within 20 days
following notice of issuance or denial of a permit considered at a
public hearing or, when the public hearing is not held, within 30 days
following the public notice of the permit application, a person having
an interest which may be affected by the issuance or denial of the
permit submits a request to the Regional Administrator, a formal ad-
judicatory hearing will be held. This hearing may include the sub-
mission of oral and written statements or testimony by witnesses with
cross—examination. Public notice of both the public hearing and the
adjudicatory hearing must be circulated 30 days before the hearing
in a way which will inform any potentially interested person.
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Following the adjudicatory hearing, the presiding officer of the
hearing will certify the record, including findings and conclusions
proposed by the parties, to the Regional Administrator who will con-
sider the record and issue a tentative decision. After a period of
time in which the parties may submit exceptions to the tentative
decision, he will issue a decision which will be the final Agency
decision unless it is appealed to the Administrator by any party.
One step is exclusive to the Federal permit program. The Act
req 1ires that an applicant for a Federal license or permit, and in
this case for a permit to discharge, must provide the licensing or
permitting agency with certification from the State in which the
discharge originates. The State is to certify that the discharge
will comply with the basic requirements of the Act, such as the
effluent limitations, water quality requirements, new source per-
formance standards, toxic standards and pretreatment standards. The
certification must also set forth any effluent limitations necessary
to assure that the applicant will comply with any appropriate require-
ments of State law. The State is given a reasonable time, which the
Agency has interpreted to mean generally three months, but in no event
more than a year, to provide its certification. If the State denies
certification, a Federal NPDES permit cannot issue.
EPA has adopted the policy that it will issue permits on a
basis of priority. The major industrial and municipal dischargers
that account for a high percentage of the total pollution load going
into the Nation’s rivers arid lakes are first priority for the estab-
lishment of abatement programs under the new legislation. The same
priority is placed on permits for discharges into waters for which
the water quality standards are known.
The fee application schedule used by the Corps of Engineers in
the Refuse Act Permit Program has been adopted by EPA for its permit
program except for minor dischargers. As required by the Corps, each
applicant for a permit paid a fee of $100 and $50 more for each dis-
charge point in excess of one. For minor dischargers (generally
those ‘who discharge less than 50,000 gallons per day), a fee of $10 will
be charged. These schedules were adopted by EPA pursuant to Section
483(a) of 31 U.S.C, and do not apply to permits when the issuing
authority is vested in a State. If the State has permit authority,
the appropriate State fee will be applied.
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V. Scope of Federal Review Authority over State Programs
The role of the Federal Government in the national permit system
does not end with the approval of a State program. EPA may retain
the right to review individual permits and may even withdraw approval
of a State program if a State fails to carry out the recipirernents of
the Act.
A. Review of Individual Permits
When a permit is to be issued under an approved State program,
the Administrator can object to its issuance on two grounds. First,
his objection may be based on notification to him from a permitting
State that another State whose waters may be affected by the issuance
of the permit has made recommendations concerning the permit and that
the permitting State has not accepted those recommendations for certain
reasons which it provides to the Administrator. Second, he may object
that such permit will be outside the guidelines and requirements of
the Act.
The Administrator may waive his right to review individual per-
mit applications. He may also, at the time he approves a State plan,
waive the right to review all permits to be issued by that State for
whole categories and classes of discharge sources. He is also to
establish regulations setting out the classes and categories of point
sources for which he will waive permit—by—permit review in any State
that has received final authority.
B. Review of, Total State Program
In addition to the Administrator’s review of individual permits,
he has the power to take over a whole State permit program. Whenever
the Administrator determines, after holding a public hearing 7 that
a State is not administering its approved program in accordance with
the Act, he is to notify the State that the program is not functioning
properly. If the State does not take corrective measure8 within ninety
days, then the Administrator is to withdraw his approval of the
program after he notifies the State of this decision and has publicly,
and in writing, made known his reasons for withdrawing approval. The
Administrator is not to take such action except upon a clear showing
of failure by the State. The administration of the permit program
will thus revert to the Federal Government.
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VI. Enforcement
A. Federal Enforcement of Conditions of Individual
State Permits
After State permits have been issued either under interim or
final programs, Federal power may be exercised to enforce them. The
thrust of the new legislation is to give the States the primary
responsibility for enforcing the permits they issue, but there are
circumstances in which the Administrator may assert his authority.
If the Administrator determines that a violation of a State permit
is occurring, he may either take direct enforcement action or he may
notify the pennittee and the State that a violation has occurred and,
if the State does not act within 30 days of notification, he can
proceed to take direct enforcement action. ny time the Administrator
takes such action he must iniiiediately notify the State.
B. Federal Enforcement—AU State Permits
As with a State permit program not being administered properly,
if the Administrator finds that violations of permit conditions are
so widespread that such violations appear to result from a State’s
failure to enforce its permits, there will occur what is called
“federally assumed enforcement.” kil1 Federal assumption of enforce-
ment powers for a State will happen if the following occurs: the
Administrator receives information of widespread violations within a
State, he notifies the State and waits 30 days to see if the failure
is corrected and, if he finds that the failure has not been corrected
and that he must assume enforcement, he gives public notice. This
period of Federal enforcement will last until the State satisfies the
Administrator that it will enforce its permits.
C. Types of Federal Enforcement Actions (Federal and
State Permit Conditions ]
The direct Federal enforcement actions, mentioned above, to
remedy violations of permits, are actions which may be taken whether
the Administrator is enforcing conditions of a Federally—issued or
a State—issued permit (interim or final). Whenever the Administrator
“finds on the basis of information available to him” that a person is
violating effluent limitations, water quality limitations, new source
performance standards, toxic or pretreatment standards, any inspection,
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monitoring or entry requirements or any condition of a permit such as
scheduled compliance dates, he is obliged to either issue an order
requiring the discharger to comply or bring a civil suit for appropri-
ate relief. Such a civil action would include a permanent or temporary
injunction and civil penalties. Dischargers who violate permit
conditions are also subject to criminal penalties.
If the Administrator elects to issue a compliance order instead
of bringing a court action, and if the order is not obeyed, the
Administrator may bring a civil action for injunctive relief to en-
force his order or seek civil penalties for the violation of his
order. Any civil actions undertaken by the Administrator may be
brought in the United States District Court for the district in which
the discharger “is located or resides or is doing business.”
VII. Public Participation and Citizen Suits
In the develo inent of the guidelines or standards required to
be pronulgated by EPA, the Act contemplates public participation
through conmients or hearings and also participation by other interested
government agencies or groups in advisory capacities. As discussed
earlier the public is to take a significant role in the permit
process. All documents relating to a proposed permit such as appli-
cations, fact sheets, draft permits, co mnents thereon and other
information are to be readily available to the public 1’ or inspection.
Moreover, public hearings may be sought by any person who has an
interest which might be affected.
This involvement of the public in the national permit program
is only one part of the broad program of citizen participation which
Congress called for in the new water pollution control legislation.
The Act reaj.iires EPA, in cooperation with the States, to develop
regulations describing the required minimum contents of programs for
public participation in all aspects of State and Federal water poflu—
tion control activities. These regulations which are called “Public
Participation in Water Pollution Control Programs,” are to insure
public involvement in developing and enforcing any regulation,
standard, effluent limitation, plan or program established by the
Administrator or any State i nder the Act.
These regulations will require EPA and State agencies to provide
methods for (1) disseminating program, policy and technical information
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at times and places useful to the public; (2) giving assistance to
public groups for citizen education and training; (3) consulting
and exchanging views with interested persons; (4) giving notice of
proposed action; (5) keeping a central public collection of data
pertinent to the geographic area of the agency; (6) receiving and
evaluating reports of violations submitted by the public; (7) in-
forming the public about legal proceedings under the Act (to the
extent not prejudicial to the conduct of the litigation); and ( )
affording opportunities to the public for public hearing and comments
on proposed regulations. Guidelines for the conduct of public
hearings are also part o± the regulations, as are many other provisions
relating to public involvement,
Citizens are given the right to bring a civil suit under the
new Act against any person who is alleged to be in violation of an
effluent standard or limitation (which includes violation of a permit
condition) or of an order issued by the Administrator or a State in
regard to such limitation or standards or against the Administrator
where he allegedly fails to perform any nondiscretionary act or duty.
Under the Act, citizen is defined as “a person or persons having an
interest which is or may be adversely affected,” and “person” is
defined to mean “an individual, corporation, partnership, association,
State, municipality, commission, or political subdivision of .a
State, or any interstate body.” According to relevant legal interpre-
tation, a citizen plaintiff must be a person with an interest that
is or may be adversely affected in fact ; a generalized but unaffected
interest in the environment would not be sufficient to give a
citizen standing to sue under the Act.
Persons who can be named as defendants in a citizen suit in-
clude the United States and any other governmental agency to the
extent permitted by the Eleventh Amendment to the Constitution.
The suit shall be brought in the district court without regard to
the amount in controversy or the citizenship of the parties. In
addition to granting injunctive relief 7 the courts are authorized to
apply any appropriate civil penalties of the Act.
A citizen suit against violators of the basic effluent reajiire—
ment a cannot be brought, however, until after June 30, 1973 • The
seven-month moratorium was designed to give EPA and the States time
to institute an NPDES permit program and to give dischargers an
opportunity to file an application for a permit.
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A citizen may sue the Administrator for failure to perform non—
discretionary acts such as meeting a deadline in establishing regu.la—
tions or standards or in preparing studies or reports. If the
Administrator fails to take enforcement action after he finds that a
violation o± the Act has occurred, he is also subject to a citizen’s
action.
If a citizen is going to bring an action in any of these circum—
stances, the citizen must give at least 60 days notice (except for
violation of toxic or performance standard requirements) prior to
co mnencement of the action (i) to the Administrator, (2) to the State
in which the alleged violation occurs, and (3) to the alleged
violator. A separate suit may not be brought by a citizen if the
Administrator àr the State has commenced arid is diligently prosecuting
a civil or criminal action to req iire compliance with the violated
standard, permit condition, or order.
VIII. Other Questions and Answers
A. What is the effect of the new Act on pending Refuse Act
applications and permits?
Under the new Act, each application for a permit under the
Refuse Act pending on the date of enactment is considered an appli—
cation for a permit under the new Act... AU permits previously
issued under the Refuse Act are considered to be permits issued
under the new Act.
B. What permit authority will be exercised over thermal
discharges?
The Administrator will be establishing effluent limitations on
thermal discharges as part of the general effluent limitations and,
for new sources, as part of the performance standard. If the owner
or operator of a point source, after opportunity for public hearing,
satisfies the Administrator (or the State, where appropriate) that
the effluent limitation proposed for a thermal discharge is more
stringent than necessary to assure protection and propagation of a
balanced, indigenous population of shellfish, fish, and wildlife,
the Administrator (or State) may impose a different li.initation which
will still provide that protection.
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C. Are industrial users of publicly owned treatment facilities
required to obtain a permit? What control is placed on such indirect
discharges?
Individual industrial users of publicly owned waste treatment
facilities are not required to obtain NPDES permits. However, each
municipal facility is required to include in its application for a
permit a separate section for each major industrial facility which
uses the municipal system. The municipal permittee is to require
any industrial user of the system to comply with pretreatment standards
and certain monitoring and reporting requirements. EPA or the State
agency, as the issuer of the permit to the public facility, is to be
notified by the public facility of any changes in the volume or
constituency of the discharge from the industrial user.
D. Can a State ever apply standards or requirements to its
permits other than the Federally promulgated ones?
If the Administrator gives his approval, a State may apply its
own standards and regulations applicable to new source performance
standards, sewage sludge disposal, and discharge monitoring and re-.
porting thereof, as long as they are as stringent as the Federally
promulgated one. In addition, the Act provides that a State may
enforce any effluent limitation, schedule of compliance, or any other
requirement more stringent than Federal requirements, and may enforce
requirements in areas, such as facility design, to which Federal
jurisdiction and standards do not extend. These rights of the State
to enforce more stringent standards do not depend on the Administra-
tor’s approval.
E. Does the scope of the new ‘s jurisdiction include ground
water?
To a limited extent, ground water is a subject of the new Act.
State control over the disposal of pollutants into wells may involve
the protection of ground waters. The Federal Government is charged
with developing comprehensive programs for preventing, reducing, or
eliminating the pollution of ground waters and underground waters.
whereas the States are required to have the authority to issue
permits to control the disposal of pollutants into wells, the Federal
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Government will exercise such control only where a well disposal
is proposed as part of a program to control a discharge to navi—
b1e waters. The drafters of the new Act considered providing full
authority to both the Federal Government and the States but deter-
mined that State law was or could be made sufficient to control
deep—well disposals.
F. May individual exceptions be made to the application of
the “best available technology” requirement?
In addition to the variance relating to thermal discharges,
the Administrator may modify the requirement for application of the
“best available technology economically achievable” with respect to
any point source for which an application is filed after July 1,
1977. The applicant must make a satisfactory showing to the
Administrator that such modified requirements will (1) represent the
maximum use of technology within the economic capability of the
applicant and (2) will result in reasonable further progress toward
the elimination of the discharge.
r. Are facilities operated by the Federal Government subject
to regulation in the new Act?
Every Federal department, agency, or instrumentality which has
jurisdiction over any property or engages in any activity resulting
in the discharge of pollutants shall comply with any Federal, State,
interstate or local pollution control requirements to the same
extent that any person must comply. The President can exempt an
executive agency if it is in the paramount interest of the United
States. But no exemption can be granted from the requirements of
pretreatment or toxic effluent standards, or the new source perform-
ance standards. Federal facilities will apply for and obtain NPDES
permits only from EPA even after approval of a State program. Also,
discharges from Federal facilities do not require State certification
as is required of other discharges for which EPA may propose NPDES
permits.
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