Policy Compendium
Volume I
Permits Division
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PERMITS POLICY BOOK
This book contains policies and guidance under the Consolidated
Permit Program. The materials are arranged and numbered in
chronological sequence. NPDES policies are prefixed by an “n ”.
RCRA policies are prefixed by an “r” or are designated as “PIGS’
(Program Implementation Guidance) or “RIMS” (Regulation Interpretation
Memorandum). Following the prefix, the first number is the year
of issuance and the second is the chronological sequence for that
year. In addition to the chronological listing a subject index
is provided to assist in locating policies.
- Documents which are too lengthy to be included are indicated
by an asterisk . Copies of these documents may be obtained by
contacting:
Ms. Ruth Landsman
Permits Division EN—336
U.S. EPA
401 N Street, S.W.
Washington, D.C. 20460
(202) 755—0750
Please use the policy number when requesting a document.
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P ’ T PROGRNI
LOGI L L1 F G CJR T ICI
Permit
Pr ram
Title Date de
1973
• Policy on Storage & Releases for Water i 1 ty
ntrol in Reservoirs Planned by Federal
agencies 1/16/73 n—73—1
• Permit Fb 9/18/73 n—73-2
• Inte nittent Stre 9/28/73 n-”73-3
• Mte.rr.ative in Permit Language 12/27/73 n—73-4
1974
• Mditiona L Guidance for Petroleun Mexketing
Terminals & Oil Production Facilities 7/18/74 n-74-1
• Feedlot Perm t ftrmiat 7/29/74 n-74—2
• Application of Electroplating Guidelines 8/28/74 n—74—3
• Dis sal of 1y Water Trea nent Slodges 9/13/74 n-74-4
1975
• Use of Closed Cycle C ling Syst to Meet the
Pequiris ents of Sectior 316(b) 2/26/75 n—75—1
1976
• NPDES Permit Authorization to_Distharge 4/28/76 n—76—1
• Procedures for Issuance of E( T 6/03/76 n-76—2
• fc t ed
Diachargers 6/03/76 n-76-3
• foros ent Actions ere an Industrial
Discharger Fails to Meet_7/1/7 7 DP dline 6/03/76 n—76—4
• ordinatiai B. en Nk’u Pz xam ar Water 7/07/ 76 n-76—5
ty Menageient a Id
Attathnent — ordination 4/02/76 n-76-5
• !tinicipal Wast ter 1 eatrent Pords 8/12/76 n-76-6
• M rican Petro1ei Instit mte v. A -
Inf tion Me 8/24/76
• Birding Effect of 303(e) Basin Plans 8/24/76 n-76-8
• lnpact of Phase I Basin Plans 9/01/76 n-76—9
• Phase II Iron ard Steel Guidelines — Meluiing
River Valley 10/04/76 n-76-1O
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—2—
Pernut
Program
Thtle te Code
• Asbestos jj j 10/15/76 n—76—1l
• Use of Lo F1 vi Au tentation to Meet Water
Quality Standards 11/08/76 r.—76—12
• Questions Regarding E La 12/10/76 n—76—13 -
• rmsnts on Region VIII ‘s Approach to Writing
Effluent Limits for Confined Animal Feeding
c erations 12/15/7 6 n—76— 14
1977
• Clarification of OGC C inion No. 40 (State
Review Authority) 2/04/77 n—77—1
• Pecal Coliform Bacteria Limits 2/14/77 n-77-2
• 3ditiona1 Questions Regarding T & 4/01/77 n—77—3
• Water ests nt Plant Limitations 4/13/7 7 n-77-4
• Request for Policy Regarding Possible Use
of NP S Permits to P i te Better Sludge
Managsiient 4/13/77 n—77—5
• 316(a) & (b) thnical Guidance I cunents 5/01/77 n—77—6
• Use of In-Stream Methanica.1 Aerators to Meet
Water Quality Standards 5/02/7 7 n-77—7
• NPD Permits and Requirenerits of State Law 5/04/7 7 n-77-8
• Use of .s Past 7/1/77 5/11/77 n—77—9
• Ti 1ene.ntation of Pronulgated Section 307 (a)
Toxic Standards 6/01/77 n-77—10
• forcenent Policy and Use of E LG for POIWs 6/22/7 7 n-77-11
• NPDES Penaits in Wetlands Areas 7/12/77 n-77-12
• Inçlenentation of Section 403 7/20/77 n—77-13
• Policy Regarding Procedures for Fundarrentally
Different Facto.s &T Variances 8/18/7 7 n ••77—14
• Policy Regarding the Inclusion in Permits of
?bre Stringent Effluent Parameters 10/13/7 7 n—77—15
1978
• State Regulation of Federal Pacilities 3/10/78 n-78-1
• nfider tia1ity of NPD Permit Applications 4/06/78 ri-78-2
• Minicipal Periid t cte’ sions Under
Section 301(i) 4/19/78 n—78—3
• C rtificaticn ax Permitting of Discharger
in B indaxy Waters 4/19/78 n-78-4
• Reissuing Permits to S irces
Affected by the N C nsent Agreerent 5/16/78 n—78—5
• a1 Mining tkader the Surface Mining Control
and Reclar tion Act of 1977 5/25/78 n-78-6
• inia s on Variances in Se d und and
Other Issues 6/13/78 n—78—7
• Parte Contacts in Adjudicatory Hearings 6/16/78
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—3—
Permit
Program
Title I te Cbde
• Polices for Reissuing Industrial NPD Permits 7/12/78 n_78_9*
• c Parte Contacts in EPA R 1anaXing 8/04/7 7 n-78-10
• &ispended Solids Li nits for P IW Ponds 9/01/78 n-78-l l
• Innovative Technology tens ions 9/06/78 n—78—12
• Guidance to States re. Pretrea nent Program 9/08/78 n-78—13
• Variance AplicationS 9/12/78 n—78-14
• Applicability of 301 (h)&(i) to Federal
Facilities 9/12/78 n—78—15
• Transfer of Authority over Federal Facilities
to NPD States 11/28/78 n-78—16
• Q ordination between Regional &tforce nent and
Water Prc s re Pretreatnent Program 11/29/78 n—78—17
• Request for Legal Cpinion - Inclusion of
Capliance Schedules in Se nd Round and
New PC. nitB 12/26/78 n—78-18
1979
• Use of Bi u itorthg in the NPDEZ
Permits Program 1/11/79 n—79-l
• State Pretreatre.nt Programs 4/12/79 n-79-2
• EPA Procedures for Review & Approval of State
Pretreatnent Program Submissions 4/30/79 n—79—3
• Separate Storm Sewers 9/11/79 n—79—4
• National !‘tr icipal Policy & Strategy 10/79 n—79-5 t
• Guidance on Setting acr Permit Limits for
Breweries wider Section 4C2(a)(i) of CWA 10/18/79 n-79-6
1980
NPDES
• Regional Review of State-Issued NPD Per iits 1/18/80 n-80-1
• App1i” i1ity of Revised NPD Regulations
to Ps uita Qirrently Being Processed 1/18/80 n-80—2
• Incorporation of Pretreatnent Program
Deve1 t p1iance Schedules into
po’xw t Pe its 1/28/80 n—80—3
• OGC Me o- . of B0 Cazbonacecus Test Results 4/18/80 n-80-4
• Pretreatnent Caiçliance Schedule n-80—5
• Statenent By Agency Personnel Purporting lb
Sanction Source Actions ich Are In isistent
With Statutory Requirements 5/28/80
Writing BAT Permits in the Absence of
Prceiilgated fluent Guidelines 6/25/ 80 n—80—7
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-4-
Pexmjt
Program
Title Date Code
• Major Municipal Permitting in F 81 7/10/80 r.-8Q-8
• Suspension of Portion of Definition 7/15/80 r -& -9
of “Waters of the US” in Consolidated
Permit Regulations
• Revised NPD Se nd Round Permits Policy 8/29/80 n-80-10
• NPD Permit Issuance for Iron & Steel. 9/15/80 n-80-l].
Facilities
• &ispension of Provisions in Consolidated 9/25/80 n—80—12
Permit Regulations Establishing iteria
for NPD New Source Determinations and
Prcçosed Revision of the Regulations
• Treatability Manual 9/25/80 n_80_ 13*
• BC !’ Cost Test Guidance 9/30/80 n-80—14
• NPDES Evidentiary Hearing Manag rient Pr rarn 10/3/80 n—80— 15
g c-rt 4
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be-d - ’e’ u’ Ni N ç EA bh e . ./iCio_v PeA.’l 1. bb(’ 3 4
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mv j a iL4i_ P -i1 4i 7 4- b
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Permit
Progrem
Title Date Code
R A
• A Permit Priorities Guidance 10/3/80 r—9Q-1
• Estab1is inent of RCRA “Program
Ir plei ntation Guidance Systen (PIGS)” 10/3/80 PIG-SO—i
• Inter n Authorization of Progran Based 10/3/80 PIG—80—2
on fl rgex y State Regulaticr s
• Requirenent That State Permitted Hazardous 10/3/80 PIG—80—3
Waste Facilities Have “Interim Status”
• ort— rm Financial Assistance for States 10/3/80 PIG—80—4
Expected tO Receive Authorization Before
January 1, 1981
• The Use of State Permitting Systerne D.iring 10/17/80 PIG-8 1—1
ase I Interim Authorization Which are
not Based on Explicit Regulatory Star ards
• DTergency Permit Guidance 10/20/80 r_80_2*
• Federal Register Notice of Public Hearing and 10/23/80 PIG—81—2
Ca irent Pe.iod on State Applications for
Interim Authorization ( 4
• Effect of RCRA Regulations Changes on
Phase I Interim Authorization Approval 10/30/80 PTG-B1—3
• “Delisting” of Wastes ‘ Authorized States 10/31/80 PIG-81—4
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PEPZ T PR RkM
LIs’r OF CURP T LICI BY SJB
Permit
Pr grarn
Title Date Code
I. Administrative Guidance
A. Forn :
Permit Form 9/18/73 n—73—2
A1tem ative in Permit Language 12/27/7 3 n—73—4
Feedlot Permit Format 7/29/74 n-74-2
B. Procedures:
plicability of Revised NPD Pegs.
to Permits Currently Being Processed 1/18/80 n-80-2
II. Regulatory Procedures
A. ! V T :
Procedures for Issuance of E LB 6/03/76 n—76—2
forcenent Actions Against Flirded
ttinicipa.1 Disohargers 6/03/76 n—76—3
iforc nent Actions ere an Industrial
Discharger Fails to ?‘ et 7/1/77
Deadline 6/03/76 n—76-4
Questions re ! Ls 12/10/76 n—76- 13
Additional Questions re E Ls 4/01/7 7
Use of .a Past 7/1/77 5/11/77
E forc nent Policy and Use of .s
for 1Ws 6/22/77 n—77—11
B. Industrial:
C. t4mic pe1:
D. Tie-in:
E. C.ean Water Act Extensions and M,difications
t4inicipal Pe uit Extensions Under 4/19/78 n-78-3
Section 301(i)
F. ,nso1idate5:
Suspension of Portion of Definition of
“Waters of the US” in Consolidated Permit
R ulation5 7/15/80 n—80—9
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—2-
Perr.it
Program
Title Dete Ccde
Suspension of Provisions in
Consolidated Permit Regulations
Esthblis ing iteria for NPDES
New Source Determinations & Proposed
Revision of the Regulations 9/25/80 n-S0— 12
III. Federal/State Relationships
A. NPD States:
Clarification of OGC C inicn
No. 40 (State Review Authority) 2/04/77 n-fl-i
State Regulation of Federal Facilities 3/10/78 n-78-l
Transfer of Authority over Federal
Facilities to NPD Z States 11/28/78 n—78— 16
B • on-NPD!Z States:
C • Water Quality Manage ent Plans:
Coordination Between NPDES Program 7/07/76 n-76-5
aM Water Quality P nage nt and
Attac nt - Coordination 4/02/76 n-76-5
Binding Effect of 303(e) Basin Plans 8/24/76 n—76-8
IlTpact of Phase I Basin Plans 9/01/76 n—76—9
NPD! Permit and Pequiraments of
State Law 5/04/77 n-77-8
.D. Resource Conservation and Re very Aut:
Esta lis1rnent of RCRk “Program
IrTpl enentation Guidance Systen (PIGS) “10/3/80 P 1 0—80—i
Inter zn Authorization of PrograxTs
Based on nergency State Regulations 10/3/80 P10-80—2
RequireTerit that State Permitted -
Hazard as Waste Facilities Have
Status” 10/3/80 P10-80—3
Short-Term Financial Assistance for
States cpected to Receive
Authorization Before 1/1/81 10/3/80 P10-80-4
The Use of State Permitting
SysteTe airing Phase I Interim
Authorization Which are nct Based
on E 1icit Regulatory Standards 10/17/80 P 1 0-81—i
Federal Register Notice of Public
Hear3.ng and TTTent Period on State
Applications for Interim Authoriza- 10/23/80 PI0-812
tion Effect of R Regulations
Oianges on Phase I Interim Authoriza-
tion Approval 10/30/80 P10-81-3
“Delisting” of Wastes by
Authorized States 10/31/80 PIG-814
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?er iit
Progrwn
Title te Code
E. Safe Drinking Water Act:
IV . Legal Interpretations and Informetion Meitos:
Intermittent Streams 9/28/7 3 n—73-3
Disposal of Supply Water Treatnerit Sludges 9/13/74 n-74-3
NPDES Permit Authorization to Discharge 4/28/7 6 n-76-1
American Petro1e % Institute v. EPA -
Infor! ation Mei 8/24/76 n—76-7
Phase II Iron & Steel Guidelines —
Mahoning River Valley 10/4/76 n—76-10
Request for Policy re Possible Use of
NPDES Permits to P . te Better Sludge
Menagenent 4/13/77 n—77-5
NP D S Permit in Wetlands Areas 7/12/77 n—77-12
Ipl nentation of Section 403 7/20/7 7 n—77-13
Policy Regarding the Inclusion in Permits
of 1 ’bre Stringent Effluent Parameters 10/13/77 ri.-77-l5
Confidentiality of NPDES Permit -
Applications 4/06/78 n—78-2
Coal Mining Under the Surface Mining
Control and Re 1amsticn Act of 1977 5/25/78 n—78-6
Certification and Permitting of Dischargers
in Boundary Waters 4/19/78 n—78-4
Opinions on Variances in Se d und
and Other Issues 6/13/78 n—78-7
c Parte Contacts in Adjudicatory Hearings 6/16/78 n-78-8
c Parte Contacts in EPA 1ti1a iaking 8/04/77 n-78-l0
Innovative Technolo h E ctensions 9/06/78 n-78-12
Applicability of 301(h) and (i) to Federal
Facilities 9/12/78 n—78— 15
Request for Legal Opinion - Inclusicn of
Catpliance Schedules in Second Pound
and New Permits 12/26/78 n-78-18
Separate Stn Sewers 9/11/79 n—79-4
Regional Review of State-Issued N
Permits 1/18/80 n-8O—l
C CC ? -Use of Carbonaceous Test Results 4/18/80 n-80-4
StateTent By Agency Personnel Purporting
to Sancticna.l Actions with are In-
consistent w/ Statutory Pequireients 5/28/80
NPDES Permit Issuance for Iron & Steel
Facilities 9/15/80 n—80—ll
BC1’ Cost Test Guidance 9/30/80 n—80-14
NPDES Evidens 4 *lly Hearing P nage bant
10/3/80 n—80—15
V. Se id Permits:
Reissuing NPD S Permits to Sources Affected
by the NRDC Consent Agreetent 5/16/78 n—78-5
Policies for Reissuing Industrial NPD
Permits 7/12/78 n_78_9*
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Permit
Program
Title 1 te Code
Writing NPDLS B T Permits In the XDsence
of Prain.ilgated Effluent Guidelines 6/25/80 n-8 0-7
Revised NPD!S Seoond Round Permits Policy 8/29/ 80 n-80-10
VI. Technical Guidance:
Policy on Storage & Release for Water
Quality Control in Reservoirs Planned
by Federal Agencies 1/16/73 n-73-l
Additional Guidance for Petroletzn Marketing
Terminals & Oil Production Pa’ 1 ities 7/18/74 n—74-l
Application of Electroplating Guidelines 8/28/74 n-74-3
Use of Closed Cycle Cooling Systøts to
Meet the Requir nents of Section 316(b) 2/26/75 n—75—l
Municipal Wast ater Treatment Ponds 8/12/76 n-76-6
Asbestos Li its 10/15/76 n—76—l1
Use of La ,.’ Au ntation to Meet
Water Quality Standards 11/08/76 n-76—12
O 1 nts an Region Viii’s Approach to
Writing Effluent Limits for Con.fined
An ra1 Feeding Operations 12/15/76 n—76—14
Fecal Coliform Bacteria Limits 2/14/77 n-77-2
Water Treatnent Plant Limitations 4/13/77 n-77-4
Use of In—Strewn Mechanical Aerators
to Meet Water Quality Standards 5/02/7 7 n—77—7
IzTpleTlentaton of Praiulgated Section
307(a) Toxic Standards 6701/77 n—77—l0
Suspended Solids Effluent Limitations for
Publicly ined Wasteiater Treatnent Ponds 9/01/78 n-78—l1
iidance an Setting BC r Permit Limits for
Br eries under Section 402(a) (1) of
the C 10/18/79 n—79—6
Treatability Menual 9/25/80 n_80_ 13*
VII • Variances:
Policy re Procedures for Fundamentally
Different Factors BPT Variances 8/18/77 n-77-14
Variance Applications 9/12/78 n7814
316(a) & (b) Technical Guidance DocLzne.nts 5/01/77 n-77-6 t
VIII. Coordinated !42nicipal Strategy
National ?tmicipal Policy & Strategy 10/79 n-79-5
Coordination between Regional &iforcament
and Water Prograu re Pretrea Tent
Program 11/29/78 n-78—17
Major Municipal Permitting in F 81 7/10/80 n-SO-B
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Per nit
Title te Code
I X. Pretreatment:
Guidance to States re re.reatment 9/8/78 n—78—13
Program (see also Feb. 1979 publi tion—
Guidance for NPDES States on
IITpl Ie.ntaon of the General
Pretreatment Regulations —
40 CFR Part 403)
State Pretreatment Programe 4/12/79 n—79—2
EPA Procedures for Revia ar
Approval of State Pretreatment
Program Suixuiss ions 4/30/79 n-79-3
In rporation of Pre.rea nt Program
Development Tp1iance Schedules into
P0’IW NPD S Permits 1/28/80 n-80—3
Pretreatment C rp1iance Schedule n—80—5
X. Biaicnit ing:
0Q M no “Use of Bi u uitoring in the
NPD!S Permit Program” 1/11/79 n—79-1
X I.
A Permit Priorities Guidance 10/3/80 r-80—1
R A flTergency Permit Guidance 10/20/80 r—80-2
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ENVIRONMENTAL PROTECTION AGENCY
•li
U
Policy on Storage and Releases for Water Quality Control 3 1
In Reservoirs Planned by Federal Agencies
, ,. -AU Regional Administrators
1. PURPOSE
To amend EPA policy on determining the need for and value of
reservoir storage for water quality control.
2. BACKGROUND
a. Section 102(b) of the Federal Water Pollution Control Act
Amendments of 1972 requires, in part, that in the planning of any
reservoir by a Federal agency, inclusion of storage for regulation of
streaiiiflow shall be considered, except that such storage shall not be
provided as a substitute for adequate treatment or other methods of
controlling waste at the source. The Act also provides for additional
coverage over previous legislation In that reservoirs constructed under
license granted by the Feder l Power Comission are also Included. The
Act further provides that the need for, value of and Impact of storage
for water quality control shall be determined by EPA, whereas the need
for and value of storage for other stream flow regulation purposes shall
be determined by the Federal agency planning the reservoir. To administer
this legislation, “adequate treatment or other methods of controlling
waste at the source”, must first be defined and then the pollutant
reductions attainable from application of.these measures must be estimated.
b. Over the past several years, advancement In pollátlon control
technology, together with an Increasing recognition of the limitations
of flow augmentation as a means of enhancing water quality, have indicated
that reservoir storage for water quality control is generally a poor
subst tute for at-source pollution control measures. This points toward
the need for a policy requiring provisions for high degrees of pollutant
reduction from at-source controls or treatment methods prior to consider.
ation of reservoir storage and releases for water quality control. Such
a policy would be consistent with the National goals for water quality and
control of pollution sources set forth In Section 101 of the Act.
3. STRUCTURE OF POLICY
The enclosed guidelines and an appendix defining uadequate treatmentN
supplement the policy statement presented below.
cø& c... iii.vn
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2
4. POLICY STATEMENT
a. Storage to be included in a reservoir or other impoun nent prc 4 ject
for regulation of stream flow shafl not be used as a substitute for the pro-
vision of adequate waste treatment or other methods for controlling waste at
the source.
b. As a basic element of this policy, EPA defines “adequate waste
treatment or other methods of controlling waste at the source” as the best
available pollution control technology economically achievable including
advanced waste treatment techniques, land disposal, land mar agement
practices, process and procedure innovations, changes in operating methods
and other alternatives.
c. Water quality monetary benefits obtainable from streamfiow
regulation shall be credited only to reservoir storage specifically required
for and allocated to water quality control.
d. EPA shall reconinend to construction agencies af Federal projects
the inclusion of storage for water quality control by fiow regulation only
where such storage Is required as a supplement to application of the best
available technology and is in consonance with water quality management
plans developed under the Federal Water Pollution Control Act or ts
amendments. This same provision shall also apply to reservoir projects
constructed under license granted by the Federal Power Ccninlssion.
e. When EPA reconinends provision of storage for water quality control,
all the environmental consequences of such provision should be considered,
so that EPA will be In a position to coninent favorably on the water quality
storage aspect of the project when the environmental impact statement on the
project is circulated for comnent.
f. An EPA recomnendation regarding the provision of storage and releases
for water quality control shall take into account State laws and policies with
respect to such storage.
g. When water quality control storage included within existing
reservoirs Is no longer needed, such storage should be reallocated to other
purposes based upon appropriate studies and after consultation between the
construction agencies and EPA. Reservoir operations should be modified as
Indicated by the study findings.
5. APPLICATION AND IMPLEMENTATION .
This policy applies to EPA’s evaluation of the need for and value of water
quality control storage In reservoirs planned by the Corps of Engineers, Bureau
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3
of Reclamation. Soil Conservation Service and other Federal agencies and in
reservoirs licensed by the Federal Power Comission. EPA will implement this
policy to the extent of its authorities in conducting all program activities
including review of reservoir plans under Section 102(b), water quality
management planning, interagency water and related land resource planning,
and review of environmental statements.
Date: JAN1SV3
William D. Ruckeishaus
Administrator
Enclosure
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$r 4 ,
t. - . 3 -
UNITW STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
p , 1 t’
SEPi 973
OFFiCE OF
ENFORCEMENT AND GENERAL C UNSEL
) NO1 ANDUH
Permit Program Policy Advice
To: £11. Regional Permit Program Chiefs #1.973—12
From: Director, Permit Programs Divis .on
Subject: Permit Form
The attached draft of the “permit form” is final as far as
the language is concerned. Alan Kirk has signed off on it and an EPA
form number is presently being assigned. An outside forms specialist
has been retained to rake it look more like a legal document. Once
printed, copies will be furnished to each region with a small number
held in Washington for further distribution.
As is readily apparent, the conditions have been reorganized,
numbered and captions added to make them easier :o read and understand.
The language was made less legalistic wherever it did not seriously
impair the intent of the condition.
This form is to be utilized for all industrial and most other non—
municipal dischargers. It may be better in the case of certain agricultural
operations to devise a more appropriate Parts I and II. If you attempt to
do so, please obtain our concurrence before issuing the pemit. te will.
soon attempt to develop the more appropriate language for the agricultural
operations and when cor pleted, we will provide a draft for review. The
Office of Air and Water Programs is also devising a pern±t form for use
with municipalities. As with this one, once finalized, no deviations
from the printed conditions will be authorized except as noted below.
Part III will be used for your inspirational-type conditions unique to
the facility being permitted or those conditions requested by the State.
The signature (first) page has sufficient rocn for both State and
A signatures and titles. State signing is encouraged when A is
issuing the permits. iote, it is called an “authorization to discharge”
rather than a discharge permit. When issuing permits to some industries
being put on implementation schedules leading to no discharge, it
might be possible to dify the title to something which connotes an
authorization to operate but not discharge. At this time we have not
given adequate thought to that point but are open to suggestions. Requests
from facilities clearly not having a discharge (i.e., feedlots near no
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water course) could better be handled by a letter stating no pernit is
needed rather than issuance of this form. A suggested letter on this
point with a discussion of the relevant issues will be forthco .i ;.
Several copies of Page ] . of Part I will be provided to you for
use as supplerlerLtary sheets on which can be listed final 1 interim and
initial effluent limits — one set per page. It can also be used eacn
time specific limits are going to be set for different outfalls. Since
we have removed the condition which clearly stated when the abatement
units had to be achieving the authorized level, it becomes increasingly
important for the first date on Page 1 (A.l. — identifying the first day
of enforceable effluent limits) to take the start—up and equipment shaI e—
down periods into consideration. Condition C (Schedule of Compliance)
will also be available as extras so that lengthy schedules for separate
outfalls can be listed in an uncluttered manner. We simplified the
opening language of the condition, so be sure and type in the outfall
numbers that the schedule concerns. Please note that #2 of Item C
is now understandable without six readings.
We have also modified the condition dealing with retention of data.
The permittee wil. no longer automatically retain data for more than
three years at th initiation of any litigatiom. It now reads thr t it
will be up to the Regional Athn(nistrator to advise him that this must
be done.
In cases where a permit condition is deemed to be totally inappropriate
to the situation, the offending language may be lined out, but only with
prior approval. You can, however, consider that you now have such prior
approval to line out the appropriate words in Condition B.].. of Part II
(Right of Entry) whenever the permittee is a Federal facility. We cannot
require the Federal agency to allow the State the same right of entry as
EPA.
In Condition #2 of Part II, we ask that EPA and the State only be
notified of the transfer since the IPDES is tramsferrable. State peimits
may not be. In these cases, the State is expected to write to the new
amer and advise him of the need to obtain a new State permit.
At this time we intend to publish the “authorization” in the Federal
Register for Information purposes after it has been put into the final.
printing format. It is also quite likely that copies will be transmitted
to the States by Headquarters explaining the forms use and encouraging
its adoption in States having the program.
Should any further explanations regarding changes or use of condi-
tions be needed, please give us a call
Enclosure
‘.‘ • p . .. •• — . —
, 4..’.
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D fl \.
AppL c3cIon 1 o
AUTHORIZATION TO DISCHARGE UNDER THE
NATIONAL POLLUTANT DISCHARGE ELl 1INATION SYSTEM
In compliance with the provisions of the Federal Water Pollution Control Act, as amended,
(33 U.S.C. 1251 et. seq; the “Act”),
is authorized to discharge from a facility located at
to receiving waters named
in accordance with effluent limitations, monitoring requfrements and other conditions set forth
in Parts I, II, and III hereof.
This permit shall become effective on
This permit and the authorization to discharge shall expire at midnight,
Signed this day of
EPA P.ii 3320.4 110—73)
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A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENIB
During the period beginning and lasting through
the permittee is authorized to discharge from outfall(s) serial number(s)
Such discharges shall be limited and monitored by the permittee as specified below:
Effluent Characteristic Discharge Limitations Monitoring Requirements
kglday (lbs/day) Other Units (Specify)
Measurement Sample
Daily Avg Daily Max Daily Avg Daily Max Frequency Type
Flow—m 3 IDay (MCD)
The pit shall not be less than standard units nor greater (ban standard units and shall be monitored
- .v -u
II
There shall be no discharge of floating solids or visible loam In other than trace amounts.
Samples taken In compliance with the monitoring requirements specified above shall be taken at the following location(s)
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A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS
During the period beginning and lasting through
the permittee is authorized to discharge from outfall(s) serial number(s)
Such discharges shall be limited and monitored by the permittee as specified below:
Effluent tharacteristic l)iseharge Limitations Monitoring Requirements
kg/day (lbs/day) Other Units (Specify)
Measurement Sami 1e
Daily Avg Daily Max Daily Avg Daily Max Frequency Type
Flow—m 3 /Day (MCD)
The ph shall not be less than standard units nor greater than standard units and shall be monitored
U V 0
There shall be no discharge of floating solids or visible foam in other than trace amounts.
Samples taken In compliance with the monitoring requirements specified above shall be taken at the following location(’):
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A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS
During the period beginning and lasLing through
the perniittee Is authorized to discharge from outfall(s) serial number(s)
Such discharges shall be limited and monitored by the permittee as specified below:
Effluent aiorsclcrlstic Discharge Limitations Monitoring Requirements
kg/day (lbs/day) OLher Units (Specify)
Measurement Sample
Daily Avg Daily Max Daily Avg Daily Max Frequency Type
FIow—m 3 IDay (MCD)
The p11 shall not be less than standard units nor greater than standard units and shall be monitored
•a -u
r. u
There shall be no discharge of floating solids or visible foam in other than trace amounts.
Samples taken in compliance with the monitoring requirements specified above shall be taken at the following location(s)
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PART
Page of
Permit No.
B. SCHEDULE OF COMPLIANCE
1. The permittee shall achieve compliance with the effluent limitations specified for
dischaiges in accordance with the following schedule:
2. No later than 14 calendar days following a date iden fied in the above schedule of
compliance, the permittee shall submit either a report of progress or, in the case of
speeific actions being required by identified dates, a written notice of compliance or
noncompliance. In the latter case 1 the notice shall include the cause of noncompliance.
any remedial actions taken, and the probability of meeting the next scheduled
requirement..
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PART I
Pji:c 01
Permit u
C. MONITORING AND REPORTING
1. Representatiue Sampling
Samples and measurements taken as required herein shall be representative of the volume
and nature of the monitored discharge.
2. Reporting
Monitoring results obtained during the previous months shall be summarized for
each month and reported on a Discharge Monitoring Report Form (EPA No. 3320-1),
postmarked no later than the 28th day of the month following the completed reporting
period. The firs: report is due on Duplicate signed copies of
these, and all other reports required herein, shall be submitted to the Regional
Administrator and the State at the following addresses:
3. Definitions
a. The “daily average” discharge means the total discharge by weight during a calendar
month divided by the number of days in the month that the production or
commercial facility was operating. Where less than daily sampling is required by this
permit, the daily average discharge shall be determined by the summation of all the
measured daily discharges by weight divided by the number of days during the
calendar month when the measurements were made.
b. The “daily maximum” discharge means the total discharge by weight during any
calendar day.
4. Test Procedures
Test procedures for the analysis of pollutants shall conform to regulations published
pursuant to Section 304(g) of the Act, under which such procedures may be required.
5. Recording of Results
For each measurement or sample taken pursuant to the z’equireraents of this permit, the
permittee shall record the following information:
a. The exact place, date, and-time of sampling;
b. The dates the analyses were performed;
c. The person(s) who performed the analyses;
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PART I
0I
P rmii No
d. The analytical techniques or methods used: and
e. The results of all required analyses.
6. Additional Monitoring by Pcrmittce
If the permittee monitors any pollutant at the location(s) designated herein more
frequently than required by this permit, using approved analytical methods as specified
above, the results of such monitoring shall be inclu.ded in the calculation and reporting of
the values required in the Discharge lonitoring Report Form (EPA No. 3320-1). Such
increased frequency shall also he indicated.
7. Records Resention
All records and information resulting from the monitoring activities required by this
permit including all records of analyses performed and calibration and maintenance of
instrumentation and recordings from continuous monitoring instrumentation shall b’
retained for a minimum of three (3) years, or longer if requested by the Regional
Administrator or the State water pollution control agency.
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PART Ii
Page oi
Pernuc No
A. MANAGEMENT ftEQU1REMENT
1. Ciic’ r.c ’ in Dtsci:arge
All discharges authorized herein shall be consistent with the terms and conditions of this
permit. The discharge of any pollutant identified in this permit more frequently than or
at a level in excess of that authorized shall constitute a violation of the permit. Any
anticipated facility expansions, production increases, or process modifications which will
result in new, different, or increased discharges of pollutants must be reported by
submission of a new NPDES application or, if such changes will not violate the effluent
limitations specified in this permit, by notice to the permit issuing authority of such
changes. Following such notice, the permit may be modified to specify and limit any
pollutants not previously limited.
2. Noncompliance Notification
If. for any reason, the permittee does not comply with or will be unable to comply with
any daily maximum effluent limitation specified in this permit, the permittee shall
provide the Regional Administrator and the State with the following information, in
writing, within five (5) days of becoming aware of such condition:
a. A description of the discharge arid cause of noncompliance; and
b. The period of noncompliance, including exact dates and :imes; or, if not corrected,
the anticipated time the noncompliance is expected to continue, and steps being
taken to reduce, eliminate and prevent recurrence of the noncomplying discharge.
3. Facilities Operation
The permittee shall at all times maintain good working order arid operate as efficiently
as possible all treatment or control facilities or systems installed or used by the permittee
to achieve compliance with the terms and conditions of this permit.
4. Adverse Impact
The permittee shall take all reasonable steps to minimize any adverse impact to navigable
waters resulting from noncompliance with any effluent limitations specified in this
permit, including such accelerated or additional monitoring as necessary to determine the
nature and impact of the noncomplying discharge.
5. Bypassing
Any diversion from or bypass of facilities necessary to maintain compliance with the
terms and conditions of this permit is prohibited, except (1) where unavoidable to prevent
loss of life or severe property damage, or (ii) where excessive storm drainage or runoff
would damage any facilities necessary for compliance with the effluent limitations slid
prohibitions of this permit. The permittee shall promptly notif:.’ the Regional
Administrator and the State in writing of each such diversion or bypass.
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PART II
P3ge of
Peunn No
6. Removed Substances
Solids, sludges, filter backwash, or other pollutants removed in the course of treatment or
control of wastewaters shall be thsposed of in a manner such as to prevent any pollutant
from such materials from entering navigable waters.
1. Power Failures
lit order to maintain compliance with the effluent limitations and prohibitior.s of this
permit, the permittee thall either:
a. In accordance with the Schedule of Compliance contained in Part I, provide an
alternative power source suffic:ent to operate the wastewater control facilities;
or, if such alternative power source is not in existence 1 and no date for its implementation
appears in Part I,
b. Halt, reduce or otherwise control production and/or all discharges upon the
reduction, loss, or failure of the primary source of power to the wastewater control.
facilities.
i3. RESPONSIBILITIES
1. Rightof Entry
The perrnittce shall allow the head of the State water pollution control agency, the
Regional Administrator, arid br their authorized representatives, upon the presentation of
credentials:
a. To enter upon the perrnittee’s premises where an effluent source is located or in
which any records are required to be kept under the terms and conditions of tus
permit; and
b. At reasonable times to have access to and copy arty records required to be kept under
the terms and conditions of this permit; to inspect any monitoring equipment or
monitoring method required in this permit; and to sample any discharge of pollutants.
2. Transfer of Ownership or Control
In the event of any change in control or ownership of facilities from which the authorized
discharges emanate, the permittee shall notify the succeeding owner or controller of the
existence of this permit by letter, a copy of which shall be forwarded to the Regional
Administrator and the State water pollution control agency.
3. Availability of Reports
Except for data determined to be confidential under Section 308 of the Act, all reports
prepared in accordance with the terms of this permit shall be available for public
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PART II
C,’
Permit No.
inspection at the offices of the State water pollution control agency and the Reaicr.a
Administrator. As required by the Act, effluent data shall not be considered con1 dential.
Knowingly making any false statement on any such report may result in the imposition of
criminal penalties as provided for in Section 309 of the Act.
4. Permit Modiftcation
After notice arid opportunity for a heating, this Tiermit may be modified, suspended, or
revoked in whole or in part during its term for cause including, but not limited to, the
following:
a. Violation of any terms or conditions of this permit;
b. Obtaining this permit by misrepresentation or failure to disclose fully all relevant
facts; or
c. A change in any condition that requires either a temporary or permanent reduction or
elimination of the authorized discharge.
5. Toxic Pollutants
Notwithstanding Part II, B-4 above, if a toxic effluent standard or prohibition (including
any schedule of compliance specified in such effluent standard or prohihition is
established under Section 307(a) of the Act for a toxic pollutant which is present in the
discharge and such standard or prohibition is more stringent than any limitation for such
pollutant in this permit, this permit shall be revised or modified in accordance with the
toxic effluent standard or prohibition and the perrnittee so notified.
6. Ciuil and Criminal Liability
Except as provided in permit conditions on “Bypassing” (Part II, A-5) and “Power
Failures” (Part II, A .7), nothing in this permit shall be construed to relieve the permittee
from civil or criminal penalties for noncompliance.
7. Oil and Hazardous Substance Liability
Nothing in this permit shall be construed to preclude the institution of any legal action or
relieve the permittee frobi any responsibilities, liabilities, or penalties to which the
permittee is or may be subject under Section 311 of the Act.
8. State Laws
Nothing in this permit shall be construed to preclude the institution of any legal action or
relieve the perrnittee from any responsibilities, liabilities, or p2nalties established pursuant
to any applicable State law or regulation under authority preserved by Section 510 of the
Act.
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UNITED STATES ENVlRON’ 1ENTAL PROTECTION AGENCy
WASHINGTON. DC 2O46
SEP 28 1973
CNFORCtMtIT Hfl IjJaL C’. t.\’L
n
To: David Morell
OAWP Municipal Per ics Coordinator
Frog: Acting Deputy Gener ,l Counsel
Subject: Incer ittent St eans
We have your e oranJum of August 27, 1973, together with
Bob Sansom’s March 20, 1973 e oranduz and Walt Gilbert’s draft
ezorandu , concerning issuance of permits and establishment of
water quality standards for intermittent streams.
There are two çuestions involved: 1) for what intermittent
stres s must 1PDES discharge permits be issued; end 2) for what
intermittent streams must water quality standards be established?
1. Under the FWPCA, permits nust be issued (with exceptions
.not pertinent here) Lor discharges into “navigable waters.”
Mr. Quarles’ memorendu of February 6, 1973 (copy attached) inter—
precs the phrase “navigable waters” as used in the FWPCL, listing
the following six categories of waters as being included:
(1) All navigable waters of the United States;
(2) Trtbutaries of navigable waters of the United States;
(3) Interstate waters;
(4) Intrastate lakes, rivers, end streams which are
utilized by interstate travelers for recreational
or other purposes;
(3) Intrastate lakes, rivers, and strearns froa which
fish or s :el1fish are taken and sold in interstate
commerce; and
(6) Intrastate lakes, rivers, and sereans which are
utilized for industrial purposes by industries in
interstate coc erce.
-------
Where 3 stream has subs: ntiai flow during sorne se sr.s of
the year, it would fall under category (1) in tr. Quarles’
nenorandun. Where there is only shc rt-tern runoff in a nornally
dry strea bed, category (1) wouLd not apply, but categories (2)
or (3) vculd apply t the runoff reaches a navigable water or
crosses a State line. CateSories (4) and (5) are self—explanatory.
Category (6) would not nornally apply to a municipal pernit.
In short, PDES pernits should be required for all municipal
discharges into intermittent screarns unless the strea is nornally
dry, has only short—tern runoff which does not reach a navigable
water or cross a State line, and there is no use of the stream
by interstate travelers or for other interstate coercial purposes.
2. Generally, water quality standards should be established
for all waters for which NPDES pernits are required. However,
where the stream would not support aquatic life even absent
any permitted discharge, we do not interpret the FWPCA to require
establisbent of water’quality standards.
3. We agree with the assertion in Mr. Sansom’s March 20
memorandum that the short discharge channels of treatrnent plants
containing only effluent are not subject to establishrnent of water
quality standards.
Robert V. Zener
cc: John Rhett
All Regional Counsel
Dave Mowday, Region IX
2
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•1 •
• . I —• — - — — • — — — —. . -, ,-. • . — — — —, •
UI% I •. ._.J . - . i,c . ricJ. : _ i i,. ,\
a
WAS 1I TO . 2C CO
December 27, 1973
cr cr
inroa c.’ ;.: A.D
Permit Program Policy Advice
TO: All Regional Permit Program Chiefs 01973—19
FROM: Deputy Dircctor, Permit Programs Division
SUBJECT: Alternative in Permit Language
This cor unication contains additional permit languagc for use in
preparing conccntration lirnitod perrits. This language is only to apply
in those industrial permits such as quarries, water treati nt plants,
railroad yards, etc., whose efflucr.t limitations are expressed in
concentration only.
Those definitions contained in Part I, Section B3.a, and B3.b, should
be deleted from the Standard Form, and the following language should be
substituted as shown below.
3. Definitions
a. The “daily average” concentration means the arithmetic
average (weighted by flow va1u ) of all the daily
dcterr inations of concentration i ade during a calendar
month. Daily determinations of concentration rade
using a co posite sample shall be the concentration of
the composite sample. When grab sar . ples are used, the
daily determination of concentration shall be the
arithmetic average ( ;cighted by flo i value) of all the
samples coliected during that calendar day.
b. The udaily maximum” concentration means the daily
determination of concentration for any calendar day.
We must emphasize agein that the substitute language is only applIcable
to those industrial groups whose permit limitations are concentration
dependent.
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.‘
;
UNITED sTAl ES EN\’IRONMENTAL PROTECTIQN AGENCY
WASHINGTOU. D.C. 20460
¼
1. 8 1974
orrlcE c
D.FCflCEMCIIT AZ.D CC? CRAL c U’.ZFL
MEMO r A DL 1 PAZD p1974—8
fl - r’1i l
TO : All Regional Enforcement Directors
UFIC, Denver
UFIC, Cincinnati
FRCM : Acting Director, Permit Assistance & Evaluaticn Division
SUBJECT: Additional Guidance for Petro eum I• ar eting Terminals and
Oil Production Facilities
The purpose of this mer.orandum Is t :o—fold. First, it is to
provide guidance for establis iing monitoring for petroleum mar : ing
terminals and sec3nd, it is to establish a categorization within
that industry and the oil production industry.
1. At the time of writing the March 12, l97 morandu on Oil
and Grease Limitations for Petroleum tlarketing Terminals, litigation
was underway in Region I wherein Texaco was appealing the “Instan-
taneous maximum of 15 mgIl oil and grease” contained in ore of their
permits. This case has been resolved and the sar ling orocedure
stipulated in the settlement should be adopted in all ftture ter-
minal permits. The key effluent limitation for oil ar.d grease
remains a daily maxiir 1 um conc ntrat on o 15 r a/i , with a nth1y
measurement frenuencv . The sau p1e type is four grabs durinc forty—
five minute period, once er ri nth durina dischar e .
The daily maximum Is defIned as the arithmetic average of a
minimum of four representative samples collected at equal intervals
durlr.g any forty-five minute period.
Due to the variability of the sampling and analysis of oil and
grease from petro1eu marketing terminals, a maximum of ten percent
of the samples taken during the course of one pennit-ycar, but not
more than one sample during any dischar;e, may bc excluded fro i the
calculation of the daily maximum, if these samples are not repre-
sentative. In the event that a permittee excthdes a sa p1e from
the calculation of the maxitum as defined he must submit t e re-
suits of the analysis of that sa: le to the Regional Administrator
-------
with a written explanation of the exclusion of that particular value.
His reported maximum value then beco es the arithmetic mean of the
remaining three representative sarples. For the purposes of these
per nits it is presu ed that each sar ple is representative. It
should be noted that the daily average (monthly) of 10 mg/i is still
applicable to large terminals which have a continuous discharge.
2. Due to the relatively small size and insignificance of their
discharges certain petroleum marketing facilities and oil production
(stripper) facilities have been set aside as a separate sub—category
within each of these industrial categories. The following criteria
should be used in determining if a facility fits this sub—categor ,’:
a. If an onshore, non-transportation related production
and/or storage facility, and
b. Is generally manned eight hours per day or less, and
c. Has no discharge from any part of the facility subject
to Section 402 of the Act, except periodic discharge
of accumulated rainfall, ar 1 d
d. Holds a valid, certified SPCC plan in accordance with
40 CFR Part 112.
Unt fl effluent guidelines are established for these facilities, best
practicable control techrolcc i y be defined as “to Treat ent.”
The implementation of a certified $PCC plan In accordance with 40 CFR
Part 112 will assure the Agency that there will be no harmful dis-
charge of oil.
It is suggested that writing of these permits be deferred until
a later date.
e5 f
Attaclinent
cc: R.H. Johnson
A.C. Printz, Jr.
C.J. Schafer
K.E. Biglane
A. Cywin
All Regional Permit Branch Chiefs
State UPDES Program Directors
C. Corkin
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1
UHIT O STATES i p.o: Tt P OTCC7Ic:z . C CY
RLCION 1
• B0ST04. HAS$ACHUSCTTS
IN TIlE PATTCR Or: )
)
NaUon l Pollut itit D&schi r;e )
s. ElLaIn tion Systim ) S I’UL1T!O I FOR P.ZC13 AL.
) ALCl1NlSTXa%TO ’S AflI:OVA
Permit No. I COOO2267 )
)
Tezaco 1ico.cp . 5 a4 1 . )
I’ )
Permitter. )
___________________________________________ )
‘II —
I; I
STiPULATION I
I
The permittce herein above named and the Enforcement
Division of the Environmental Protection A cncy Region I,
ii ItipulaL e and a;rce as £otloi.r:
1. The per £ttec bcrc.by vtth .ra ,: ts requcs . for an
adjudicatory hcarin .
.2. The permit involved in thi’ proceeding sh11 be
modified in the follo in; respect:
1:
— A. The attachcd permit form s? a1l be ua3d.
S. Tbs fltlovm provision shell read as Colby ;:
S
Tb. discharge shall consist oni! of stormwater
and vashua&sr vnoU which is collected and discharged
throuh an efficiently opcratcd •illvater separator.
C. Effluent limits and monieorin rcçutrements
for suspended solids shalt be deleted. - I
D. Effluent limitations and monitoring requirements I
S
shall include:
I
I
I !
• #a
a
••••_ __ __ a.. e.. ...a aean
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.2.
I I
If
in sr.n: i.ct i cis n1.r 1?:C .rr,’i v i’: is
Oil and Crease Iax muie )Icasurcmcnt Saplc
1 mg/I Frequency Type
IIDnLhIy Fo.ir Crabs
p durfng a
f cty —CLvc
minute
pcriod,
OflCC pOt
month during
discharge
‘1
}Iaxicjt L a defined and r.easured as (o1le ,s:
The ar nmc:1c avera;e of a e in nu of four representatives
saM Los collected at Scuat intervals dur1n any 43 minute
period.
* to the variability of the sa* ling and analysis of
oil and reasc (ron bulk seoa e facilities, a inum of
ten percent at tlic sa *p Lee takcn dunn; the cojtse of one
pcnrlt .year, but not rtore th.an one s:r lc dur n; any dis:. e,
may be excluded ( c..a the calculation of the as defined
above, If said sav,lcs ate n ripresenracive. In the event
that the per tt ! as c ctudud a saap e Cro the cslcul Lon
of thc maxt ne so defined In regard to its ca= liance monitor n t
schedule usidor this section, it oust: 1.) submit the results
oC the •sslysis of such sample to the Irgional 1 t.o inistracor;
• 2.) submit a written explanation of the exclusion of such sample
to the IcgiensL Ai. xinLsuator; and 3.) repent a maxiou value
for the reporting period eased on the anLcP.&ctsc mean of tour.
representative samples exclusive oC the sampib excluded.
For alt purposes associated with this pcemit there shall e a
‘‘.;:. ! presuniptiors chat each sample is represenfaUve.
• -: -,. :.
t : •..‘ ij 3. There at-c no parties to these proccedints other than
the parties caking this stipulation.
.. : “/‘-/
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.3—
4 . This stipuI tion shati i ct bind the tnvtron ntaL
Protection ACCUCy or the a 1 ,plicant until p ’ tt, as
modlt icd in p r r pI. 2 .bovc, is ti ncd by the cgLonaL
Adaini st a cr.
IJ.ned by tic last s natory )icr to j q y’
Texaco Pcrmiti..c
II
U. S. En iron ctitni rrotcctior
II ACrftcyb kc ion I
ii ___________________________
Ii _________________________ ___________
I!
I
I
BY: v. ‘• //.
.
£
( _c’- ,.. i:
Cachcriiic 1.. i rct1, Att Ln y
£n c’rcercnc litv;s on
I
—
/ ,..r2,, ‘
Charles Ccjr ii Li
Counsel ret A.. InLstrattvC I . t acion
___,... II
The Ioaora , .
iut steatt Judge
.—..
;)Jf
. L. A
, ,.c ) 1 .
././4f /
. -.
Y:/ r
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I ,..,
.r ‘
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHiNGTON. D.C. 20460
AR I 8 m4
ME1’ CRAHDUM PAED O .9 74—4
TO : All Regional Enforcei ent Directors
NFIC, Denver
NFIC, Cincinnati
FROM : Acting Director
Permit Assistance and Evaluation Division
SUBJECT: Oil and Grease Limitations for Petroleum Marketing Terminals
The purpose of this memorandum is to provide guidance in drafting
NPDES permits for oVL and grease limitations in petroleum ir. rketing
terminals.
In deciding what effluent limitations should be placed on çetroleu
marketIng terminals In NPCES permits, the following considerations
have been taken into account:
1. 011 pollutIon preyention regulations promulgated at4O CFR 112
for the control of oil and hazardous materials under sectIon 311
of the Act require that the aischarger nstai1 and i aintain
facilities for the prevention and recovery of spills and for storm
runoff management ar.d control Including controlled release to prever.t
oil pollution. It further r çuires that these facilities ar.d
control measures be installed within twelve months of prc ulgation
of the regulations or January 11, 1975. Therefore, in considering
the definition of EPT for oil and grease we may assume a controlled
discharge which, though it may e intermittent, will not ordinarily
contain slugs of oil.
In passing, we should also note that discharge at levels
at or below 10 mg/I oil and grease does not guarantee
against sheen. Detection of the Iridescent (rainbcw
effect) characteristic of a thin film of ol% on water
is a highly subjective test depending, In part, upon
the state of motion of the water as well as the condi-
tions of lighting and the discrimination of the
Individual’s eyesight. In addition, whether, in fact,
a sheen will be caused by the discharge of any given
concentration of any particular oil into any specific
body of water depends upon, among other things, the
salinity of the water, the temperature of the water,
the state of motion of the water, the viscosity of the
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2.
oil, the solubility of the oil, the degree of mixing,
dispersion and turbulence with which the oil is injected
Into the water and the presence or absence of any soaps,
detergents or other emulsifying agents in the oil or the
water.
2. The concept of best practical treatment includes the
range of practice such as may be found In either
petroleum oil refineries or marketing terminals. It
is not limited to API separators nor does it necessarily
Include, for any given installaiton, dissolved air
flotation and/or deep bed filtration. Rather, we feel
that the scope of BPT, for oil and grease limitations
includes housekeeping, replacement of oil soaked earth,
dikes and sumps at oil transfer points to prevent and
recover spills, rain sheds over the transfer point to
prevent contamination of rain runoff, other storm
runoff management and control facilities, API separators
including parallel plate and corrugated plate separators
biological oxidation by a variety of means, filtration
including deep bed filtration as well as hay filtration,
dissolved air flotation and any other practice normally
found in the petroleum oil handling industry. Thus, for
very large petroleum marketing terminals where the value
of product handled is high and trained operators are
normally on duty, we feel a high degree of end of pipe
treatment Is warranted In addition to normal housekeeping
and other control measures as may be indicated. Cn t e
other hand, for medium sized petroleum marketing tarmir .a13,
we would expect that a high degree of hcusekeepir.g and
spill prevention as described above would afford the sa e
results.
3. The total variability of results obtained In sampling
and analyzing oil water mixtures of the oil content
is on the order of plus or minus 60% at 99.5% confidence
for samples In the range of 15 ppm. The analytical method
itself contributes a large part of this variability,
however, of overwhelming significance is variability
associated with the difficulty in sampling oil water
mixtures particularly where the oil content Is very
low. We have just begun work on defining standard
sampling techniques.
With these considerations In mind and considering it difficult to
justify effluent limitations for oil and grease t cre strlnccnt for
petroleum marketing terminals than those Imposed upon petrolcum
refineries, our guidance Is as follows:
4y limitation is the daily maxl um which should be limited at
15 mg/l. The sampling frequency can be anywhere frcm one per day
to once per year or may be defined as “during paricds cf dlscrarC2”.
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3.
In deciding upon the frequency of self-monitoring sampling required,
you should take into account the average anr’ual rainfall for the
particular area in order that the sampling frequency b2 rational.
The sample type is to be three grabs. The definition of daily
average and daily maximum contained in your standard permit language
should be crossed out and the following language substituted:
“Daily maximum shall be the average of a minimum of three grab samples
taken at equal intervals during the period of discharge with the
first grab taken during the first hour of discharge.” The interval
of sampling shall be specified on a case by case basis.
Consistent with this daily maximum limitation, the daily average
(monthly) should be limited at 10 mg/i. The definition of
daily average to be inserted in the permit is as follows: “Daily
average limitation is the average of all grab samples taken during
the month.” A daily average limitation is necessary in instances
where large terminals have a continuous discharge and is required
under t!PDES program regulations. In areas of low rainfall snd where
other effluent sources do not cor.stitute a continuous discharge,
the daily average (monthly) limitation may be omitted. This is
because the concept of a daily average Iimitaticn is inccnsistent
with highly intermittent flows and the statistical infc-rer ,ces
have not been evaluated.
Compliance schedules must be included in t PDES permits for petroleum
marketing terminals that d3 not already have spill prevention, water
management, and pollution abatement facilities already installed and
operating, especially in ccmpliance with the oil pollution prevention
regulations (40 CFR 112). The compliance date in the I P ES perri:
must be consistent with these regulations.
There may be special circumstances where an instantaneous maximum
is appropriate. We would recor - end that tnis be used with some
care, as it means that the discharger is in jeopardy of enforcement
based on a single grab sample.
R ç4 .( atfer
cc: R. H. Johnson
•A. C. Printz, Jr.
C. J. Schafer
K. E. Biglane
All Regional Permit Branch Chiefs
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.sI•• • d 4 .
J UNITED STAt cS ENVIRONMENTAL PROTECT 1L.4 AGENCY
. WASHINGTON. D.C. 20460
t
r - I..
JLfl. 29 i374 orric or
£NFORCEMENT AN3 GENCRAL cOUUSEL.
PAZD #1974—9
MEMORANDUM
TO : . All Regional Administrators
All State Program Directors
FROM : Assistant Administrator for Enforcement & General Counsel
SUBJECT: Feedlot Permit Format
Pursuant to requests received at the last Regional Administrator’s
meeting, a standard permit format for feedlots (except ducks) has been
finalized. A copy is attached. Th2 conditions developed reflect the
Agency’s stated poslticn as contained in the promulgated guideline.
It further allc is the flexibility felt necessary to assure a viable
compliance program.
This format should be used in th2 feedlot permits that you are
presently developing.
C& $
Alan G. Kirk II
Attachment
cc: Enforcement Directors
Permits Branch
Individuals at Chicago meeting
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Pcrmit No.
Application No.
NATIO AIi POLLUTANT DISCHARGE ELIMINATION SYSTEM
In coi pliance with the provisions of the Federal Water Pollution
Control Act, as ait ended, (33 U.S.C. 125]. et. seq; the “Act’),
from a facility located at
is authorized only such discharge as is in accordance with discharge
limitations, monitoring requirertents and other conditions set
forth herein, to receiving ‘eaters nar ed
This pernit shall beccne effective on
This permit stall expire at midnight,
Signed this - Lay of
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Page of
ermit No.
A. DISCHARGE L I ’rATIO AND ONITORfl 1 G REQUIR .:•THTS
1. Discharge Limitation
a. During the period beginning and lasting
through , the pcrinitteo shall not
discharge process wastewater pollutants to navigable waters
except overflow from facilities as defined in paragraph Cb)
below.
b. “Facilities” means waste control facilities designed,
constructed, and mainta ned in a state of availability
to contain the runoff from inches of rainfall in
24 hours plus gallons of process generated
wastewater.
2. Monitoring F.ec’.irenents
a. The permittee shall monitor and record precipitation daily
using a National leather Service standard rain gage or
equivalent if he elects to maintain a precipitation gage
at the facility.
b. The official precipitation gage for this permit shall be
c. The pcrxnittee shall monitor and record the liquid level
of retention facilities______________
(frequency)
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Page of
Permit No.
• SCUEDUL OF COt’2LIA1 CE
1. The pemnittoe shall achieve co ’p1iance with the effluent limitations
specified for discharges in accordance with the Coflowing schedule;
2. No later than 14 calendar days following a date identified in the
above schedule of eo pliance, the per tittee shall sit either
a report of progress or, in the case of specific actions bcing
required by ident .fied dates, a written notice of co pli&n:e or
noncor.plian e. In the latter case, the notice shall include the
cause of noncc pliance, any remedial actions taken, and the
probability of m eeting the next scheduled require ent.
C. ECO IXG AX D R PORTZ1
1. Juu ual Report
Discharge occurrences during the previous 12 months shall be
reported post. arked no later than the 28th day of the month
following the completed reporting period. The first report
is due on - Duplicate signed copies
of these, anj all, ether reports required herein, shall be
sub ttted to the Regional Ad nini:tr tor and the State at the
following addresses:
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Page of
PcrrLit No.
2. Reporting of Discharge
When a discharge occurs, the pe ittce shall notify the perm.it
issuing authority as follows:
a. By telephone, _______________, within _____ hours of occurrence
or during the first busi.ncss day following a discharge that
occurs on a weekend or holiday, for discharges resulting frent
precipitation events;
b. By telephone. _______________, in ediately upon occurrence,
for discharge rcsultir.g from non-prccipitation events (e.g.,
dike or structural failure, eçuipment breakdown, hurnan error);
c. In writing, within five (5) days of occurrence, with the
following information:
Cl) Cause of the discharge;
(2) Period of discharge, including exact dates and times;
(3) An estimate of the discharge volume; and
(4) Corrective steps taken, if appropriate.
3. Recording of Results
For each measurement taken pursuant to the requiromcr.ts of this
permit, the permittee shall record the following information:
a. The exact place, date, and t ne of measurements;
b. The person who perfo ed the measurements; and
c. The methods used.
4. Record Retention
All records and information resulting front the monitoring activities
reçaircd by this permit shall be retained for a minimum of three (3)
years, or longer if requested by the Regional. A !Lthistrator or the
State water pollution control agency.
D. 1 AGE .1E:1’r REQVIR EI TS
1. Change in Discharge
No discharge is authorized herein except those consistent with the
terms and conditions of this permit. A discharge of pollutants
not authorized shall constitute a violation of the permit. Any
anticipated facility expansions, predu tion increases, or process
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P of
Pc mit No.
modifications which will, result in new, different, or increased
probability of cliecharge of pollutants must be reported by
submission of a ncw tPD S application unless such changes will
not violate the discharge prohibition specified in this permit.
2. Facilities Operation
The parmittee shall at all times maintain in good working order ar.d
operate as efficiently as possible all control facilities or systems
installed or used by the parmittee to achieve compliance with the
terms and conditions of this permit.
3. Adverse Impact
The permittee shall take all reasonable steps to minimize any adverse
Sii pact to navigable waters resulting from noncompliance with any
effluent limitations specified in this permit.
4. Removed Substances
Solids, sludges, liquid wastes, or other pollutants retained in the
course of cor.trol of waste atcrs shall be disposed of in a manner
such as to prevent-any pollutant from such materials from entering
navigable waters.
E. RESPONSIBILITIES
1. Right of Entry
The pernittee shall allow the head of the State water eoll tion
control ager.cy, the ?.e ior.al A& ustrator, and/or their
authorized rcpzese tatives. upon the preser.taticn of credentials:
a. To cr.ter upon the permittee’s premises where an effluent
source is located or in which any records are required to be
ke)t un r the terms and conditions of this permit: and
b. At reasonable times to have access to and copy any records
required to be kept under the term and cer.d tions of this
permit; to inspect any monitoring equipment or monitoring
method required in this permit; and to sample any discharge
of pollutants.
2. Transfer of Ownership or Control
Zn the event of any change in control or ownership of facilities
from which the authorized discharges emanate, the permittee shall
notify the succeeding o rner or controller of the existence of this
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‘agc
Permit No.
permit by letter, a copy of which shall be forwarded to the
P.egioru l Adninistrater and the State water pollution control
agency.
3. Availability of Reports
Except for data determined to be confidential under Section 303
of the Act, all reports prepared in accordance with the terms
of this permit shall be available for public inspection at the
offices of the State water pollution control agency and the
Regional. Administrator. As required by the Act, effluent data
shall not be conaidored ccnfidcntial. Knowingly making any
false statement on any such report may result in the imposition
of criminal penalties as provided for in Section 309 of the Act.
4. Permit Modification
After notice and opportunity for a hearing, this permit may be
modified, suspended, or revoked in whole or in part during its
term for cause including, but not limited to. the following:
a. Violation of any terms or conditions of this permit;
b. Obtaining this permit by misrepresentation or failure to
disclose fully all relevant facts; or
c. A change in any condition that requires either a temporary
or permanent reduction or elimination of the authorized
discharge.
5. Tox .c Pollutants
Notwithstanding Part !-4 above, if a toxic effl er.t standard or
prohibition Cincluding any schedule of compliance specified in
such effluent standard or prohibition) is established under
Section 307(a) of the Act for a toxic pol.lutar.t f: . ch is present
in the discharge and such standard or prohibition is more
stringent than any limitation for such pollutant in this permit,
this permit shall be revised or modified in accordance with the
toxic offluent standard or prohibition and the permitece so
notified.
6. Oil and Hazardous Substance Liability
Nothing in this permit shall be construed to preclude the
institution of any legal action or relieve the permittee from
any responsibilities, liabilities, or penalties to which the
permittee is or may be subject under Section 311. of the Act.
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Page of
Permit No.
7. State Laws
Nothing in this permit shall be construed to preclude the institution
of any legal actioc or relieve the pernitt e iron any responsibilities.
liabilities, or penalties established pursuantto any applicable
State law or regulation under authority preserved by Section 510
of the Act.
8. Property Rights
The issuance of this permit does not convey any property rightr
in either real or personal prope ty, or any c clusive privileges,
nor does it authorize any injury to private property or any
invasion of personal rights, nor any infringement of Federal,
State or local laws or regulations.
9. Severability
The provisions of this permit are severable, and if any provision
of this permit, or the application of any provision of this pert it
to any circunstance, is held invalid, the application of such
provision to other circumstances, and the remainder of this pert it,
shall not be affected thereby.
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(I S7 ,.
% .. .r
S “
. 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
• ,••___
WASHINGTON. D.C. 20460
AUG 23 1374
OFFICE OF
ENFORCEMENT AND GEhERAL C3JI SEt.
? .EMORAXTDUM ‘q .3
TO : All Regional Permit Branch Chiefs
FBOM : Chemist, Permit Assistance Branch
St B-3ECT; Application of Electroplating Guidelines to NPDES Permits
Sunmarv and Introduction
This memorandum i writtcn to help explain the application of Electro-
plating Guidelines to writing PDES permits. It is considered that the
guidelines are essentially formulated on the use of effluer.t flow X
treated pollutant concentration logic. The effluent flow is rated and
used on a flow per area plated basis. A generalized approach is given
to understanding what is meant by area plated in the guidelines and.
three possible methods of calculation of area plated to obtain pollutant
limits are outlined. Finally, it .s suggested that a direct total flow
X concentration calculation be r.ade to assure reasonableness of assigned
permit limits.
The Electroplating Guidelines, Phase I, covering the copper, nickel,
hrcmium and zinc subcategories were issued in the Federal Register en
M&. cb 28, 1974. During that same month, the final version of the
Effluent Guideline Division support documentaticn for these guidelines
were p:thlished as EPA Report 440/1-74—003—a. In recent nonths there
have been three workshops or. the subject cosponsored by Effluent
Guidelines Division and the Permit Assistance and Evaluation Da.visien;
they were held in Washington, P. C., Boston, Massachusetts, and
Philadelphia, Pennsylvania and all were well attended by invited,
interested, State and Regional permit writing personnel. Specifica 1y,
the subject matter of the meetings emphasized the 3ustification of the
guidelines as well as their application to permit writing. Sign ficar.t1y,
the latter was explained by use of a number of different examples.
Apparently, most if not all of the attendees’ questions were answered
to their satisfactien during these meetings.
Unfortunately, the diverse nature of the Electroplating Industry
makes it extremely difficult, if not impossible te write down a
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2.
discrete, concise set of rules arid examples to follow for the facile
writing of permits. The essential problem is that it is absolutely
necessary to correctly determine the total area plated as required
by the guidelines to obtain the basis of production for the plant.
This memorandum is written in response to Regional requests I am still
receiving at this point in time for assistance in helping to properly
interprete the application of these guidelines. On this subject matter,
I have had numerous discussions with Carl Schafer and participated in
all of the Effluent Guideline Division technical working group meetings.
The contents are based on these experiences as well as my own considera-
tions and I hope will clarify the picture enough to better expedite
perm.it preparation.
I. Underlying Premises and/or Assuii’ptions
(a) Justification of the actual guideline limitations themselves and the
use of area as the unit-of-production base is not the subject of this
memorandum. It must now be accepted as the Law and all permits covered
by these guidelines must be written accordingly.
(b) The trea ter.t model is that of a coi on treatment plant wherein
the involved metals are coprecipitated and removed by settling, clari-
fication and/or filtration.
Cc) The area plated is directly proportional to water use. Essentially,
the entire volume of process water used by an electroplating plant is
for rinsing the plated part after each separate or individual operation.
The explanation of what is meant by a bone fide operation. has been
confusing, if not misleading. In my opinion, it should mean any form
of metal finishing step that ,s followed by a rinsing procedure requiring
approximately the same amount of rinse water used after a specific
latirig step . Certain metal pre—plating steps such as acid-alkaline
cleansing (or pickling) arid en-line plating steps such as the so-called
metal “strike” may or may not require the usual amount of rinse water,
if any at all, after the specific treatment step. It is essential that
the permit writer establish this through appropriate dialogue during
the permit writing process with the discharger. In this regard, a
rule-of-thumb is, the cleaning steps preceding plating are bone fide
operations and are to be counted as such, whereas the usual “strikes
is not.
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3.
(d) The guideline 2.imi s are civen in terms of mg or lbs of pollutant
per unit area plated (m or ft 2 ). However, the logic is based on the
product of total flow into the trea nent plant X trea tent concer.tra—
tion for each pollutant, in view of the trea tent model expressed in
Item (b), above. This means that for each pollutant, the following
relationships hold (for purposes of clarity, we shall use the metric
system only, hereafter).
Guideline Lirtitatior.: L/m 2 X mg/L — mg/in 2 (1)
In Equation (1) the term L/m 2 actually represents either the total flow
in liters into the co ton treatment plant divided by the total area
plated or else, ideally, this ratio zould be equal to the ratio of
amount of rinse water used for a particular plating operation divided
by the area plated during that operation. The element of time is
considered constant thrcugh ut these discussions and, therefore, its
actual amount is irrelevant. Expressed analytically,
L (single operation/rn 2 (single operation)— L (total flow)/m 2 (total area ;la c:
(2)
Therefore;
in 2 (total area lated) - in 2 (single operation) X No of Operations (3)
Since the guideline limitation in mg/rn 2 is based on flow x concentration
logic as expressed in Equation (1), in order to cbtain mg as required
for each pollutant n the permit (on a daily basis) the following
calculation must be used for each pollutant:
in 2 (total area plated) x mg/rn 2 (4)
This means that as long as there is a corm n treatment plant, coefficient
m 2 (total area plated ) in Equation (4) is co on to all pollutants.
The above description applies to a single metal finishing line, representing
a n ber of separate operations in series. When there is more than one
line and regardless of whether or not these additional lines plate at
at similar rates or plate different cb ects with different metals, the
total area plated and total accompanying water use (if necessary) is
calculated for that line separately. Finally, and ass nir.g the effluent
from all plating lines enter the same treatment plant concurrently,
the total area plated for all lines are sunuited up arithmetically to
arrive at the grand total term used in Equatic. (4). If necessary,
the total effluent volume entering the treatment plant is arrived at
in the same manner.
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4.
Since the effluent limitations are fundamentally based on flow X
concentration logic, then it can readily be seen that the m 2 (total
area plated) term in Equation (4) is the same for all pollutants in
a complex plating plant regardless of how many operations a partic iar
pollutant is involved in, in the different plating lines. Thus,
assuming the pollutant is zinc, whether or not it is plated in one
or more different plating li .nes in the same complex plating plant does not
matter in itself; what really counts, is that it is the total number of opera-
tions involved, summed up in the manner described above, that determines the
zn 2 (total area plated) term in Equation (4). Significantly, what this
really means is that a plant plating zinc in a solely single plating step
(one operation) winds up getting only one-fifth the total daily allowance
of zinc that a plant plati.r.g the sar e amount of zinc (geometric area
being the same) and plating four other metals (total of five operations)
in a single line, would get. This is due to the precipitation step
being concentration limited; therefore, the magnitude of the final
effluent is directly related to water usage.
II. Methods for Obtaining Total Area Plated
For purpose of emphasis, it is now repeated that each guideline parameter
expressed as mg/rn 2 must be multiplied by the same total area plated figure
determined for the particular plant.
This figure, in terms of a calendar day rate can be obtained by the
various alternative methods to be discussed. It should be possible to
use at least two alternative methods as a check on the reliability of
the approach. These methods will now be discussed.
(a) Geometric: The particular plant in question is likely to be a
captive shop that plates a common part of fixed geonetry. The plant
knows the area plated for each part. Then, he total area plated
daily to be used for permitting purposes is:
Geometric Area Plated per Part X No. of Parts X No. of Operations (5)
Needless to say, the average ob shop that plates sundry shaped parts
on a day to day basis is not likely to have such data.
(b) Electrochemical: The principle involved is the application of
Faraday’s Law. The pertinent Law, actually the second of Faraday’s
two laws on electrolysis states, in effect, that the quantity of
electricity required to liberate (or deposit) one gram equivalent
weight of a substance is 96,500 coulcmbs (ampere-second). Expressed
niath mpatically
W1 (6)
96,500
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5.
Wherein
w — weight of metal deposited in grams
I — amperes flowing in plating line
t — seconds (time durat .on of plating)
e — gram equivalent weight of the metal plated
The gram equivalent weight of each metal can be obtained from handbooks;
however, in order to obtain the true W, one must multiply the right-hand
term in Equation (4) by the known plating efficiency. Suggestions are
given in the above referenced EPA document or else, the plant must give
its own certified estimate of its plating. efficiency.
Next, it is necessary to convert from W, the weight of metal plated out
to area by dividing by density of the plating (certified plant estimate).
to derive the volume of the plating. Knowing the thickness of the platiig
(certified plant estimate), it would then be possible to rea4ily obtain
the area plated if a simple flat piece is involved. If the geometry of
the plated part is complex, then it is necessary to estimate the area
from the basic rules of solid geometry which are available from standard
handbooks.
It is my considered opinion, that once having gone through all of these cal-
culations, calculated area plated may still be off by two or three times.
If several metals are plated in the same line, then possibly some direct
averaging could be applied to derive the best representative area. It
is important to note that the electrochemical approach g .ves the geometric
area plated per operation in a particular plating line. In order to
obtain the total area plated per plating l .ne, it is necessary to multiply
the geometric area plated per operation as calculated from Faraday’s I w
(this may require average .f several metals are plated per line and their
respective geometric areas are calc ilated .ndividial1y) by the total number
operations involved in that plating line.
In certain cases, such as when hollow cylinders are involved and only
the outside of the cylinder gets plated, the geometric area plated must
be multiplied by two, if both the unpiated inside and plated outside
get rinsed. This is due to the fact that the inside of the cylinder
may be non—conductive, but nevertheless gets exposed to electrolyte.
In sis ry, it is important to note that the permitter must approach
his estimation of area plated by this method very cautiously and must
be especially cognizant of pitfalls in the plater’s own estimate of
area plated by this method, i. e., the plater himself, especially if
•it is a job shop, may be incapable of performing this type of calcula-
tion reliably for any one of a number of reasons. In the past, be has
not had to do so since this has been a labor-based pricing type of
industry for the most part.
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6.
Cc) Assw ed Water Use—Area Plated Ratio: According to info ation
received from Effluent Gu de1ines Division, a liberal water use per
unit area plated per operation is
200 L/m 2 (7)
This would apply to a plant that does not exercise particularly good
water conservation and could be read ly established oy a casual plant
visit by the permitter Then, for each plating line, the following
calculation could be performed to obtain total area plated:
LCtotal flow per line)
200 1 . — zn 2 (total area plated per line (8)
m (area plated per operation)
m 2 .lire 1) + m 2 (line 2) + • • • — 2 (total area plated) (9)
Finally, total area plated could be substituted in Equation (4) to yield
the allowed pollutant limit in the permit. If a plant is exercising
good water conservation practice, the figure of 160 1./rn 2 (area plated per
operation) would be a more judicious choice in this calculation.
(4) Direct Flow t es Concentration i tethod: This approach should be used
as a final check as to whether or not the assigned pollutant l iations
seezc reasonable. The total flow would be multiplied by the suggested
2PCTC concentrations in the above referenced docun ent i e.. 0.5 g/l
for the heavy metals. If the plant is using excess ve water, these
l ±tations would naturally be expected to be higher than those obtained
by the area-based calculations. On the other hand, if the plant is
using good or normal water conser.’aticn, the pollutant lititations
should check out quite well with those of the other methods. eedless
to say, anything suspicious should lead to a reinvestigation of the
estimated total area plated.
Murray P. Strier
cc; C. J. Schafer
B. B. Schaffer
A. H. Johnson
Director, NFIC Denver
Director, UFC Cincinnati
W. Hunt
Approved States
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.tI ’Io s14I ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460
September 13, 1974
OFFICE oc
ENFORCEMENT AND GENERAl. (
PAED — 1974 13
MEMORANDUM
TO : All Regional Enforcement Dir ctors
Director • NFIC Cincinnati
Director, NPIC Denver
FROM : Director, Permit Assistance & Evaluation Division
SUB .7ECT: Disposal of Supply Water Treatment Sludges
Early versions of NPDES standard permit language contained a
prohibition en the return of supply water treatment sludges to the
receiving water. It was, however, deleted as standard language for
use in all permits.
Such sludges may be subcategorized into silt removed from raw
water or chemical water treatment sludges such as lime. Under the
definition of a pollutant given in Section 502 of the Act, such sludges
are clearly pollutants. However, as is the case in any industry where
a given constituent of the wastewaters is considered and rejected as
a significant parameter or rejected for li itation under best p acti-
cable control technology currently available because of cost—benefit
consideration applied to the subeategory overall, so also may supply
water treatment sludges be approached.
With respect to silt (I. e., mud) removed from raw water, its
presence is generally due to non—point source discharges, e. g.,
erosion. The cost-benefit relationship will not always justify the
arbitrary prohibition of the return of such silt to the receiving
waters. In any given situation, it depends upon various considera-
tions including supply water silt burden, nature and quantity of
chemical clarification aids used, availability of land disposal
sites, economic iz pact , navigational considerations, and water
quality standards, to mention a few.
In the context of the technical and economic considerations de-
scribed above, our national policy on the disposal of supply water
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2.
treatment sludges is “Once a pollutant is removed from the discharge,
it should not be reintroduced”. Thus, the national policy is not an
absolute prohibition and is subject to regional determination.
Because silt is indigenous to certain river waters, notably
the Mississippi and Missouri Rivers, and because our priority concern
is process generated pollutants, and because unreasonable cost—benefit
relationships ay result in some areas of these rivers and others,
it would be within the intent of best practicable control technology
currently available to authorize, in some instances, either the partial
or total return of silt type sludges to the receiving waters.
Of course, sludges resulting from the treatment of process waste—
waters, including chemical water treatment sludges such as lime, may
not be discharged except to the extent controlled by total suspended
solids limitations on the treated effluent.
CC: Mr. Prick
Mr. Zlolloy
Mr. Schaffer
Mr. Print:
Mr. Cywin
Ms. Regelson
California
Oregon
Connecticut
Michigan
Washington
Wisconsin
Ohio
Vermont
Delaware
Mississippi
Montana
Nebraska
Georgia
Kansas
Minnesota
Maryland
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iD
%
‘-. ..a .
UNITED SATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGT3N. D.C. 20450
L PaO1
February 26, 1973
OFFiCE OF ENFORCEI.!ENT
ORANDUM
TO: Regional Enforcement Directors
NPDES Approved States
F X4: Director, Permit Assistance & Evaluation Division (EG-336)
SUBiECT: Use of Closed Cycle coeI ng Systems to Meet the
Requirements of Section 316(b)
Attached is an opinion from the Associate Ger.oral Counsel for
Water regarding the use of closed c c1e cooling systams for the pi rpose
of complying with Section 316(b) in response to several of your inquiries.
It should provide some guidance until the regulat .cris are pu 1 shed.
If there axe any questions, please give me a call at (703) 557-7470.
/ I :
Robert 3. Schaffer
Attachment
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—
. ...
UNiTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 234 O
t
i’t
• . —. .— I ,..
— — . .— — I.•.i .
OFFICE OF
£NFORCEMEUT AND G NERAI. c j;s ..
IIEMOR.ANDT1N
TO: Acting Assistant Administrator for Enforcement (EG-329)
FROM: Associate General Counsel, Wabr (EG—331)
SUBJECT: Section 316(b), FWPCA
You have asked whether the Agency has authority, under section 316(b)
of the YWPCA, to require installation of closed cycle cooling systems at
powerplants which would not be required to install such systems under
sections 301, 306 or 316(a).
Section 316(b) provides that “any standard established pursuant
to section 301 or section 306. . . shall require that the location,
design, construction and capacity of cooling water intake structures
reflect the best technology available for minimizing adverse environ-
mental impact.”
The Agency cannot directly specify that any particular mode of
cooling be adopted under section 316(b) anymore than it could under
other sections of the Act which regulate discharges. However, the
Agency is vested with authority to regulate the “capacity” of cooling
water intake structures. ltestrictions on intake capacity, required in
order to minimize environmental harm associated with withdrawal of large
volumes of water, could render a once—through cooling system infeasible.
Hence, a consequence of the Agency’s action under section 316(b) could,
in certain instances, be utilization of recirculating evaporative
cooling systems. This is, however, not essentially different from the
result of Agency restrictions on the volume of pollutant discharge under
sections 301 and 306. That is, while the Agency cannot specify abatement
technologies to be employed under those sections, the use of a particular
treatment system may be a predictable consequence of the limitations
imposed on the discharge of specific pollutants.
In my view section 316(b) represents an independent mandate to the
Agency. It is not dependent upon or overridden by determinations made
under sections 301, 306 and 316(a). Thus, if limitations on intake
structure capacity represent the best available technology for minimizing
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2
adverse environmental effects they may be imposed, in a proper case,
despite the fact that recirculating cooling systems would not be
required to insure that discharges of coolirtg water mat applicable
thermal standards.
Ray McDevitt
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UNiTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR U 1976
OFFICE OF ENPORCEMINT
HEMOPAMOUtI
Subject: NPDES Permit Authorization to Discharge
From: Deputy Assistant A& inistrator for Water Enforcement
To: Regional Enforcement Director. Region V
This is in response to your March 17 memorandum requesting
Headquarters’ policy on the following issue:
“(W)hether an NPDES permit constitutes an authorization
to discharge only specific parameters limited or monitored in the
permit or a general authorization to discharge all parameters subject
only to the limitations contained in the permit.
Answer
Headquarters policy, as well as the clear language contained in
the standard permit form (EPA Form 3320—4 (10-73)). provides for a
general authorization to discharge subject only to the conditions
and limitations contained in the permit.
Discussion
Every standard permit issued by EPA provides that the named discharger
is “authorized to discharge from a (named) facility . . . to (named]
receiving waters . . . in accordance with effluent limitations, monitoring
requirements and other conditions set forth in Parts I. I!, III hereof.
In addition to effluent limitations .specified in Part I and any special
requirements set forth in Part III each general authorization to discharge
is subject to the general conditions set forth in Part II. Those
general conditions which tend to restrict the general authorization to dis—
carge are the following:
A.l. Change in Discharge - requires notice of facility expansions,
production increases or process modifications resulting in any different
or increased discharges of pollutants even if such changes do not violate
the permit effluent limitations.
A.3. Facility Operation - requires the permittee to maintain his
treatment facilities or systems in good working order and operate them
as efficiently as possible.
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A.5. ypassin all bypassing is prohibited except under certain
circumstances.
It is believed that the above general conditions, along with the
installation and proper operation of treatment systems designed to
achieve compliance with effluent limitations based upon BPT and water
quality standards requirements should adequately limit the general
authorization to discharge. Should information which suggests otherwise
subsequently become available (e.g., discovery of the presence of toxic
substances such as PCBs in the discharge) • the permit may be modified
for cause in accordance with general condition 3.4. (“Permit Modification ).
The few permits issued under the NPDES’s predecessor permit program,
the Refuse Act Permit Program, authorized only those parameters identified
in the permit. This approach was rejected by EPA during the early
development phases of the NPDES because it is impossible to identify and
rationally 2,imit every chemical or compound present in a discharge of
pollutants. Compliance with such a permit would be impossible and
anybody seeking to harass a permittee need only analyze that permittee’s
discharge until determining the presence of a substance not identified
in the permit. The permittee then would be in technical violation of
his permit.
Because we believe the approach adopted in the 1PDES Permit Form
3320 is valid we recommend against inserting in permits the language
identified by Walter A. Romanek in his January 22, 1976, memorandum
(attached). Although it may be appropriate in special cases to employ
narrative language in addition to the Part II general conditions in
order to further restrict the general authorization to discharge. as a
routine matter such practices should be avoided.
I believe the above statement of policy is consistent with that
provided to your staff by Dick Browne and Barry Shanoff. If you have
any further questions please contact. Dick .. Brian
t4olloy, or me.
Enclosure
cc: Roy Harsch, Enforcement Division. Region V
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‘a.
___ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WAS 4INGTON. D.C. 20450
• t , tt
June 3, 1976
n - ? (. - -
OFFiCE OF EIIFORCEMDIT
TO: Regional drtinistratOrS
Regional Enforcement Pivisien Directors
NPDZS State Directors
SUBJECT: procedures for Issuance of Enforcement Compliance
Schedule Letters -
Policy . An Enforcement Compliance Schedule Letter C ECSL”) is an
enforcement mechanism to be used only in those specific instances
described in written policy guidance from the Assistant M i ” 4 “ txator
for Enforcement. ECSLs should not be used in other situations without
the prior written approval of the Assistant Administrator for Enforce—
ment. In appropriate circumstances described in separate Enforcewent
policy guidelines, ECSLs should be issued simultaneously with RP S
permits requiring achievement of final effluent limitations uly 1,
1977.. The following describes the procedures for the use of an ECS!.
in connection wit1 the issuance of an )1?DES permit.
The Permit . The permit should be in the usual form and conform to
previously issued Permit Program guidelines. It should contain
interim and final effluent limitations and should normally be fo r a tar
of five years. It should contain realistic milestones for the
of fina.1 effluent limitations, between the date of issuance and June 30
1977, end should require the achievement of such limitations on uly 1,
1977, and throughout the remaining term of the permit.. Any questions o
requests for guidance or assistance regarding the permit should be made
to the Director, Permits Division. Office of Water En.fercement.
Enforcement Compliance Schedule Letters An Enforcement Compliance
Schedule Letter (ECSL) is the exercise by the Agency or an IIPDES State
of its prosecutoria]. discretion. An ECSL should be issued only in a
case where the appropriate Enforcement official determines that the
discharger meets the requirements set forth in the policy i ’e randa
cited above.
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An ECSL should not be issued unless the discharger has submitted:
(1) doc ented evidence that, despite all reasonable good faith efforts,
it cannot achieve the final effluent limitations in the permit by July
1. 1977; and (2) a critical path or other construction managen ent
analysis of the shortest reasonable schedule by which it can a:hievè
such limitations. The Regional. Enforcement Director or the NP3ES State
Director must review the submission critically and in detail. - If he -
concurs with the su SiOfl, he should prepare an ECSL containing a
compliance schedule based upon that analysis. Of course, if he determines
that compliance cannot be obtained earlier than indicated in the analysis,
he should base the compliance schedule in the ECSL on his determination.
The burden is on the discharger to prove: (1) that it cannot achieve
the final effluent limitations contained in the permit by July 1, 1977,
despite all reasonable good faith efforts; and (2) all other relevant
facts requisite to a determination that an ECSL should be issued.
An ECSL should contain the following specific elements:
1. Reference to the underlying permit.
2. A compliance schedule for the achievement of the final effluent
limitations in the underlying permit, as expeditiously as practicable,
but no later than in accordance with the schedule contained in the E L.
such schedule to be established as outlined above.
3. A statement that the ECSL is an exercise of prosecutorial
discretion.
4. A statement that the enforcement authority will exercise its
prosecutorial discretion not to enforce the final effluent limitations
in the permit against the discharger between July 1, 1977, and the date
established in the ECSL for compliance with such limitations as long as:
a. The discharger complies fully with all terms of the ECSL;
b. The discharger complies fully with all terms of the
underlying permit with the exception of the provision requiring achievem’, t
of the final effluent limitations by July 1, 1977;
c. Circumstances do not occur which would warrant moai.—
fication of the permit; and
d. Circumstances do not occur which would warrant an action
under section 504 of the FWPCA.
5. A statement that the ECSL does not preclude the possibility of
actions to enforcement the underlying permit by third parties pursuant to
section 505 of the Act. Since an ECSL should only be issued after a
careful determination that the schedule contained therein is the most
expeditious schedule possible, few such actions by third parties an
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3
anticipated. It is nevertheless iutportant to everyone concerned be
a 3re that the possibility of such an action exists.
6. A termination date for the ECSL shortly after the date
specified in the ECSL for achievement of the final effluent limitations.
to be followed by an enforcement action if the limitations are not met
on schedule. If the limitations are not on schedule the underlying
permit would continue to regulate the discharge after the termination
of the ECSL.
7. The discharger’s agreement that the schedule contained in the
ECSL is reasonable and achievable and that the discharger will meet it
should be obtained from a corporate officer with authority to sign in
the form of a copy of. a vote of the directors, certified by the Clerk or
Secretary of the Corporation.
8. The ECSL should be signed by the Director of the Regional
Enforcement Division or by the NPDES State program to underscore the
fact that it is an exercise of the prosecutorial discretion of the
enforcement authority.
A sample ECSL is attached. It should be enç hasized that it is only
a sample and each ECSL must be carefully drafted, within the guidelines
set for the above, to cover the particular situation at issue-
ECSLS proposed to be issued by UPDES States should be reviewed by
EPA Regional Offices. In the case of an ECSL issued by an NPDES State,
it should be noted that the ECSL would not be binding on EPA. For this
reason x ost permittees will wish to have EPA as a joint signator on the
State—issued ECSL or to have EPA issue a separate E L. Regional Offices
and NPDZS States should establish mutually satisfactory procedures to -
accomplish this end where the Regional Enforcement Division Director
concurs in the required determinations made by the NPDES State Directors.
Likewise, permittees may wish to have States or joint signators on EPA
ECSLS and this too is appropriate.
When th. permit issuing authority intends to use an ECSL in conmsct o
with the issuanCe of )IPDES permits, the ECSL should be subject to the s e
public participation requirements as the underlying permit. The schedule
ca tei i]atsd in the draft ECSL should be described in the public notice
of the proposal to issue the permit and in the fact sheet and should be
subject to the same public eomz”ent and opportunity for a hearing as if the
schedule were contained in the permit.
Stanley Ii. Legro
Assistant Administrator
for Enforcement
Attachrtent
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S LE E TFORCE IT COMPLIA CE SCHEDULE LETTER
Subject: NPDES Permit No .
Name of Permittee: _______________________________________
Location of Permitted Discharge: ___________________________
Dear Sir:
The above cited permit (the “Permit’) requires the discharge
identified in and authorized by the Permit (the “Discharge”) to meet
the final effluent limitations (the “Limitations”) contained in the Permit
by the July 1, 1977, date specified in section 301(b) (1.) of the Federal.
Water Pollution Control Act (the “Act’). Section 301 (b) (1) .of the Act
and subsequent decisions of the Administrator of this Agency end Federal
Courts prevent a permit issued pursuant to section 402 of the Act from
embodying a compliance schedule to achieve the Limitations later than
such date.
The permittee has sub nitted documentation, including a critical path
construction management analysis, intended to establish that it cannot,
despite all reasonable best efforts, achieve the Limitations from the
discharge between the final effective date of the Permit and July 1, 1977.
The complianc, schedule con4k(! ed in the Permit notwithstanding,
this Agency, in the exercise of its prosecutorial discretion, will not
take action against the Permittee under section 309 of the Act with respect
to the Permittee’ a failure to achieve the limitations on and after
July 1, 1977, until the date specified herein for the achievement
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of the Limitations; provided, however, that the Permittee complies with
all of the following conditions:
1. AchieVe Construction milestone by __________
2. AchieVe Construction — . ilcston by __________
3. AchieVe Construction milestone by _________p
4. Achieve the Limitations by ________________
5. Meet all of the terms and conditions of the Permit, except
as provided above;
6. Meet all of the terms and conditions of .this Enforcement
Compliance Schedule Letter;
and provided further, that conditions do not arise which warrant an
emergency action under section 504 of the Act or modification of the
Permit.
The Permittee should note that this Enforcement Compliance Schedule
Letter does net preclude the initiation qf an action, pursuant to sectiom
505 of the Act, by a third person other than the Agency to enforce th
Permit’s requirements to achieve the Limitations by J ily 1, 1977.
This Enforcement “Compliance Schedule Letter does not• constitute a
waiver with respect to or imply that the gency will not take app riate
enforcement action against the Permittee for its failure to: (1) achieve
the Lip’(tations on and after uly 1, 1977, if the Permittee does not
fully satisfy the co 6itiOflS set forth &bove; or (2) fully con ply with
other relevant statutory, regulatory, permit and other legal requir ents
with regard to the permittee. Unless previously revoked, the sifectivanes
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3
of this Enforcement Compliance Letter shall expire thirty (30) days
after the date specified above for achieve tent of the Limitations of the
Discharge.
Sincerely yours,
Director, Enforcement Division
Region ______
The Per ittee hereby agrees that the schedule establithed above for
the achievement of the Limitations from the Discharger is reasonable
and achievable and that the Permittee will comply with that schedule.
PERMI
By____________
Authorized Corporate Officer
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UNITED STATES ENV .ONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20 6O
i.
June 3 1976
OFF! OF ENFoRC 4enr
TO: Region lMT T Strat0rS - . - - -
egional. Enforce aflt Directors
MPDES State Directors
SUB ZCT: Enforcement Actions Against a Municipal Discharger that Fails
to Meet the July 1, 1977, StatutOry Deadline for Achieving
Secondary Trea tent. Where the Municipal Discharger is Currently
Funded for a Step 1, 2 and/or 3 Construction Grant Directed
Toiard Achieving secondary Treatment or Occupies a Position
on a Priority List Such that it Can Reasonably Be Expected
to Be so Funded Prior to July 1, 1977.
Municipal. discharger s are required to achieve secondary trea m t*
by the July 1, 1977, deai 1i. ’e set forth in section 301(b) Cl) (B) of the
Federal Water Pollution Control Act, as amended in 1972 (F 7PCA). The
July 1, 1977, date is of funde!n ta1 importance to the integrity of the
FWPCA and to the National Pollutant Discharge E1Si” “ ation System (M!DES)
permit program. Fortunately, many of the subject municipal dischaxgers
have finalized permits and are on engineering and construction sc ’ le3
which will lead to attainment of secondary treatment on or before July 1,
1977. Ro’.iever, it has now become apparent that a significant n ber of
these municipal dischargers will not achieve secondary treatment by
that date.
Where a municipal discharger 1) will not achieve secondary ea ent
by the July 1, 1977, date; and 2) is funded for a Step 1, 2 and/or 3
construction grant directed toward achievement of secondary treat ”t
or occupies a position on a priority list such that it can be expected
to be so funded by July 1, 1977, by funds authorized in section 207
of the FWPCA; and 3) is not proceeding as expeditiouslY as practicable
toward the acliisvemv’t of secondary treatment consistent with the
construction grant process: the Regions are directed to take fi and
p ompt enforcement actions. Appropriate penalties and other applicabl
sanctionS should be sought. Vigorous enforcement of the July 1, 1977,
date is vital to preserve the integrity of the program, to make all
* It should be noted that municipal disc gerS are also required to
achieve water quality standard limitations by July 1, l977. Section
30]. (b) Cl) (C) of the Act. In additiOn, municipal facilities that have
been approved under section 203 of the Act prior to June 30, 1974, may
be accorded u to June 30, 1978, to achieve secondary treatment
limitations. For the sake of simolicity reference is made throughout
this memorandun to achieVement of secondary treatment limitations by
July 1, 1977, but this reference sh u1d. be understood to include
meeting water quality standard limitations by that date and, if
appropriate, achieving secondary treatment lintiations by June 30, 1978.
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dischargers aware that future deadlines will also be strictly enforced
and to provide equitable treatment to the vast majority of municipal and
industrial djscbargers who have moved quickly and cooperativelY to
install necessary control technology to meet the statutory deadline. A
failure .to enforce vigorOuslY this deadline would present undue and
unfair advantages to those recalcitrant djschalgers who ha.ve delayed
without good cause the jnstallatiofl of required equipment and would
allow them to profit through postponement of capital and operating
costs. Accordingly, for these and a number of other reasons, I cannot
overemphasize the importance of firm enforcement of the July 1, 1977,
date for compliance with the final effluent limitations.
In following this firm enforcement of the July 1, 1977, deadline,
we must not lose our sense of fairness nor be so procrustean in our
approach as to impact harshly and unfairly on a municipal discharger
that will not achieve secondary treatment by July 1, 1977, not so much
because it has not made all reasonable good faith efforts to do so, but
more from processes within the control of EPA or an 1PDES State. These
ituations are:
1. Where a discharger has no effective permit, either
because EPA or an ?4PDES State has not yet issued the
permit or the final effluent limitations or cou p1iance
schedule are stayed by the pendency of an adjudicatory
hearing; and
2 • Where a discharger’s progress is delayed by the protracted
nature of the construction grant process. This situation
would occur, of course, only when the discharger:
a. has proceeded toward achievement of secondary
treatment limitations in good faith as expeditiouslY
as practicable consistent with the construction grant
process; and
b. is currently funded for a Step 1, 2, and/or 3
constructi9fl grant directed toward achieving secondary
treatment limitations or occupying a position on a
priority list such that it reasonablY can be expected
to be so funded prior to July 1, 1977, from funds
authorized in section 207 of the FWPCA.
It would be unfair tO penalize such a discharger for delay that could be
attributed to EPA or an NPDES State or to utilization of appeal procedures
made available by EPA or an NPOES State. Moreover, an enforcemeflt
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3
action against most such dischargers would probably not decrease the -
time required to achieve secondary treatment and in many cases might
substantially inczease the time required to achieve secondary trea ient
through protracted litigation.
It is apparent that some dischargers which do not have effective
permits at the present time and do not presently have secondary treat-
ment cannot be expected to achieve secondary trea ’ t by July 1, 1977.
These dischargers must be dealt with in the “ er best calculated to
achieve secondary treatment at the earliest possible date and to impose
appropriate penalties on those dis chargers whose failure to achieve
secondary treatment in a timely manner is attributable in whole or in
part to the lack of best efforts by the dischargers. Few, if any, of
these diachargers could be expected to accept permits requiring achieve-
ment of secondary treatment by July 1, 1977 if it would be physically
impossible to achieve secondary treatment by that date and would be
subject to liability for a permit violation for such failure. )(ost
parmittees would contest the schedules in the permits through adjudicatory
hearings and judicial appeals, thus deferring the date for acbiev.i” it
of secondary treatment for substantial periods of ttre . It is impera-
tive to get these dischargers on compliance schedules to achieve -
secondary treatment at the earliest reasonable date after July 1, 1977.
While a possible approach might be to issue permits to such dischargers
with compliance schedules extending beyond July 1, 1977, that course of
action is foreclosed by decisions of the Administrator and Federal
Courts interpreting section 301 of the Act. On February 9, 1976, the
U.S. District Court for the Eastern District of Virginia in the case of
State Water Control Board v. Train (S ERC 1609) issued an opinion that
interpreted secticn 301 of the FWPCA. That opinion held that
a- permit cannot be issued which does not require by its terms compliance
by July 3., 1977, with secondary treatment effluent limitations.
Accordingly, ths permit alone cai”ot solve this situation.
In particular cases it may be appropriate to establish a compl( e
schedule for a discharger that does not have a finally effective permit
and cannot achieve secondary treatment by July 1, 1977, by the issuance
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of an waM - ItistratiVe order, the co menceZflent of a civil action, or the
issuance of a permit requiring achievement of secondary treatment by
July 1, 1977. In the latter instance the discharger would be expected
to appeal the schedule to the appropriate Court of Appeals. -usually on a
stipulated set of facts and on narrowly focused issues. These methods
should be utilized against such dischargerS, however, only after prior
coordination with the Director, Enforcement Division, Office of Water
Enforcement.
Cases where a discharger (a) does not have a finally effective
permit (or has a permit expiring prior to July 1, 1977, which must be
reissued) and cannot achieve secondary treatment by July 1, 1977, and is
currently funded for a Step 1, 2 and/or 3 const uctiOfl grant directed
toward achieving secondary treatment or (b) occupies a position on a
priority list such that it can reasonably be expected to be so
funded prior to July 1, 1977, from funds authorized in section 207 of the
FWPCA. should be dealt with by: 1) issuing a permit requiring the
achievement of secondary treatment by July 1, 1977; and 2) simultaneousLy
issuing an Eniorce Wt Compliance Schedule Letter (“ECSL”) .estsbl 4 b 4 g -
a compliance schedule to achieve secondary treatment in the shortest -
reasonable period of time after July 1, 1977, and stating the permit -
issuing authority’s intention to refrain from enforcing the July 1,
1977, requirement for achieving secondary treatment as long as the
discharger complies with the terms of the ECSL and all of the
permit other than that requiring achievement of secondary treatment by
July 1, 1977. An ECSL may not be issued unless the dischar r has submitted:
1) documinted evidence that, despite all reasonable good faith efforts, -
it cannot achieve secondary treatment by July 1, 1977; and 2) a critical.
path or other construction management analysis of the shortest reasonable
schedule by which it can achieve secondary treatment. If the Regional
Enforcement Division Director or the L4PDES State Director concurs with
the su 4 ssiofl, he should prepare an ECSL to the discharger establishing
the shortest realistic schedule by which the discharger can achieve
secondary treatment. The ECSL is discussed in d ail in an accompanying
memorandum entitled “procedures for Issuance of Enforcement Compliance
Schedule Letters.” Of course, where the diechargers’ s projected failure
to achieve secondary treatment is occasioned in whole or in part by its
own lack of good faith, this method should not be employed: the discharger
should be dealt with by traditional enforcement rechanisuts
In the case of art ECSL issued by an NPDES State, it should be noted
that the ECSL would not be binding Ofl EPA. For this reason most permittees
will wish to have EPA as a joint signator on the state—issued ECSL or to
have EPA issue a separate ECSL. Regional Offices and 7. !PDES States
should establish mutuallY satisfactory procedures tO accomplish this end
where the Regional Enforcement Division Director concurs in the determinations
made by the NPDES State Director.
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As required by the F 1PCA and the NPDES regulations. the public
must be given notice and oppOrtUnity for a hearing on all permits.
Permits issued in the context of this mentoranduzu are not exceptions
to that rule. Additionally, however, public notices and, where
appropriate, fact sheets issued for these permits should include
notice of the ECSL and its contents. Copies of these notices and
fact sheets should be trans d.tted to the Director, Permits Division,
Office of Water Enforcement.
The issuance of ECSL’ $ must be carefully applied to afford re Lief
only to those municipal discbargerS that despite all reasonable good
faith efforts do net presently have finally effective permits (or have
permits expiring prior to July 1, 1977, which must be reissued), cannot
achieve secondary treatment by July 1, 1977, and that are currently
funded for a Step 1, 2 and/or 3 constructiOn grant directed toward
achieving secondary treatment or occupies a position on a priority list
such that it reasonably can be expected to be funded prior to July 1,
1977, from funds authorized in section 207 of the T PC . This mechanism
should net be used to give relief to dischargers which are violating
compliance schedules in finally effective permits or which are not
funded or likely to be funded with construction grants prior to July 1,
1977, from current appropriations, or to weaken or undermine the integrity
of the July 1, 1977, date which is of fundamental importance to the
structure of the YWPCA and its goal of improving our Nation’s water
quality.
Stanley W. Legro
Assistant Administrator
for En.forcelnent
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‘44 •,
e 2:
‘ UNITED STATES ENVIRONME1 TAL PROTECTION AGENCY
WASHINGTON. D.C. 2O aO
&
June 3, 1976
0FF1C 0 £ FO CEM!$T
TO: Regional. Administrators
Regional Enforcement Directors
NPDES State Directors
SUBJECT: Enforcement Actions Where an Industrial Discharger
Fails to Meet the July 1, 1977, Statutory Deadline
for Achieving Best practicable Control Technology
or Other Applicable Effluent T.4 itations
Industrial dischargerS , i.e. all dischaxgers except municipal
dischargers, are required to achieve “best practicable control technology
currently available” (“EPT”) by the July 1, 1977, deadl ’ e set forth in
section 301 (b) (1) (A) of the Federal Water Pollution Control Act, as
amended in 1972 (rWPCA) * The July 1, 1977, date is of fundamental
importance to the integrity of the F TPC. and to the National Pollutant
Discharge limination System (NPDES) permit program. Fortunately, the
great majority of industrial dischargers have finalized permits and are
on engineering and construction schedules which will lead to attaiz ” t
of BPT on or before July 1, 1977. Rowever, it has now become apparent
that there are some industrial diechargers which will, not achieve BPT by
that date.
Where an industrial discharge will not achieve BPT by the July 1,
1977 date, the Regions are directed to take firm and prompt enforcement
actions. . Appropriate penalties and other applicable sanctions should be
sought. Vigorous enforcement of the July 1, 1977, date is vital to
preserve the integrity of the program, to make all discharge rs aware
that future deadlines will also be strictly enforced and to pruvide
equitable treatment to the vast majority of disehargerS who have moved
quickly and cooperatively to install necessary control tecbXtOlO9 a’ to
meet the statutory deadline. A failure to enforce vigorously this
deadline would present undue and unfair advantages to those
* It should be noted that industrial dischaxgers are also required
to neet water quality standard limitations by July 1, 1977.
Section 301 (b) (1) CC). For the sake of simplicity reference
is made through this memorandum to achievement of BPT by
July 1, 1977, but this reference should be understood to
include meeting water quality standard limitations by that
date.
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recalcitrant djscbargers wh3 have delayed without good cause the installatio..
of required equipment and would allow them to profit through postponernent
of capital and operating costs. ccordiflgly, for these and a number of
other reasons, I cannot ove:eC’PhBSiZ the inporta.nCe of firm enfo:ce ant
of the July 1, 1977, date for compliance with the final effluent limitations
reflecting BPT.
In following this firm enforcement of the July 1, 1977, deadline,
we must not lose our sense of fairness nor be so procrustean in our
approach as to impact harshly and unfairly on an industrial discharger
which will not achieve EPT by July 1, 1977, because it has no effecUve ’
permit, either because EPA has not yet issued the permit or because
compliance schedule or final effluent provisions of the permit are
stayed by the pendancy of an adjudicatory hearing. It would be unfair
to penalize such a discharger for delay that could be attributed to EPA
or an NPDES State or to utilization of appeal procedures made available
by EPA or an NPDES State. Moreover, an enforcement action against i st
such dischargers would probably not decrease the time requirea to achieve
BPT and in many cases might substantially increase the time required to
achieve BP.I,T through protracted litigation.
It is apparent that some dischargerS which do not have effective
permits at the present tine and which do not presently have BPT cannot
be expected to accept permits requiring achievezeflt of BPT by July 1,
1977, if it would be physically impossible to achieve BPT by that date
and would be subject to liability for a permit violation for such failure.
most permittees would contest the schedules in the permits through
adjudicatory hearings and judicial appeals, thus deferring the date for
achievement of BPT for substantial periods of time. These dischargers
must be dealt with in the manner best calculated to achieve BPT at the
earliest possible date and to impose appropriate penalties on those
disçhargerS whose failure to achieve EPT in a timely manner is attributable
in wk 1e or in part to the lack of best efforts by the dischargers. It
is imperative to get these dischargerS on compliance schedules to achieve
BPT at the earliest reasonable date after July 1, 1977.
While a possible approach might be to issue permits to such dischargers
with compliance schedules extending beyond July 1, 1977, that course of
action is foreclosed by decisions of the Administrator and Federal
Courts interpreting section 301 of the Act. In his decision in the
matt r of L PDES Permit for the Bethlehem, PerixtsylVartia Plant, Bethlehem
Steel Corporation (Docket No. PA—A} -O058, Sept, er 30, 1975), the
Administrator determined that he did not have the authority to issue a -
permit to a non-municipal discharger extending the 1972 statutory date for
achievement of 1977 statutory requirements for its facility even if
he made a finding that the facility could not achieve BPT within the
statutory period. The rationale of the recent decision by the U.S. Dist
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3
Court for the Eastern District of Virginia in State 7ater Control Board
V. Train (8 ERC 1609) supports the Administrator’s decision. Since a
permit cannot be issued which does not require by its terms compliance
by July 1, 1977, with BPT effluent limitations, the permit alone cannot
solve this sit atien.
In particular cases it may be appropriate to establish a compliance
schedule for a discharger that does not have a finally e.ffective permit
and cannot achieve BPT by July 1, 1977, by the issuance of an administrative
order, the commencement of a civil action, or the issuance of a permit
requiring achievement of aPT by July 1, 1977. In the latter instance
the discharger would be expected to appeal the schedule to the appropria e
Court of Appeals, usually on a stipulated set of facts and on narrowly
focused issues. These methods should be utilized against such dischaxgers,
however, only after prior coordination with the Director, Enforcement
Division, Office of Water Enforcement.
A discharger which has proceeded in good faith but which does not
have a finally effective permit and which cannot achieve EPT by July 1,
1977, should be dealt with by: 1) issuing a peri t t requiring the achieve—
ment of BPT by July 1, 1977; and 2) simultaneously issuing an Enforc, nt
Compliance Schedule Letter (“ECSL”) establishing a compliance schedule
to achieve BPT in the shortest reasonable period of time after July 1,
1977, and stating the permit issuing authority’s intention to refrain
from enforcing the July 1, 197?, requirement for achieving BPT as long
as the discharger cor plies with the terms of the ECSL and all terms of
the permit other than that requiring the achievement of BPT by July 1,
1977. An ECSL may not be issued unless the discharger has submitted:
1) documented evidence that, despite all reasonable good faith efforts,
it cannot achieve BPT by July 1, 1977; and 2) a critical path or other
construction menagement analysis of the shortest reasonable schedule by
which it can achieve BPT. If the Regional Enforcement Division Director
or the PDES State Director concurs with the submission, he should
prepare an ECSL to the discharger establishing the shortest realistic
schedule by which the discharger can achieve BPT.. The ECSL is discussed
in detail in an accompanying memorandum entitled Proceduxes for Issuance
of Enforcement Compliance Schedule Letters.
an ECSL shall be issued only for reasons beyond the control of the
discharger: 1) where NPDES permits have not been issued in a ‘ 4 -’ ely
manner; 2) delays have occurred in the resolution of adjudicatory
hearings; or 3) section 316(a) determinations have resulted in delay.
Of course, where the discharger’s projected failure to achieve EPT is
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4
occasioned in whole or in part by its ow t lack of good faith, this method
should not be employed: the discharcor should be dealt with by traditional
enforcement mechanisms.
In the case of an ECSL issued by an U DES State, it should be noted
that the ECSL would not be binding on EPA. For this reason most permittees
will wish to have EPA as a joint signator en the State-issued ECSL or to
have EPA issue a separate ECSL. Regi..nal Offices and NPDZS States
should establish mutually satisfactory procedures to accomplish this end
where the Regional Enforcement Division Director COUCUXS in the determinations
made by the NPDZS State Director.
As required by the FWPCA and the NPDES regulations, the public
must be given notice and opportunity for a hearing on all permits.
Permits issued in the context of this memorandum are not exceptions
to that rule. Additionally howevet, public notices and, where
appropriate, fact sheets issued for these permits should include
notice of the ECSL and its contents. Copies of these notices and
fact sheets should be transmitted to the Director, Permits Division,
Office of Enforcement.
The issuance of ECSL’s must be carefully applied to afford relief
only to those dischargers that despite all reasonable good faith efforts
do not presently have finally effective permits and cannot achieve BPT
by July 1, 1977. This mechanism should not be used to give relief
to dis:hargers which are violating compliance schedules in finally
effective permits or to weaken or undermine the integrity of the
July 1, 1977, date is of fundar:tental i npo tanCe to the structure
of the FWPCA and its goal of improving our Nation’s water quality.
Stanley wYLegro
Assistant Administrator
for Enforcement
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL 7 1976
OFFICE OF ENFORCEMENT
ri -U ,. -$
M 4OL&NDUM
TO: Regional Administrators, Regions I—X
SUBJECT: Coordination Between NPDES Program and Water Quality Management
Planning Program
INTRODUCTION
This policy describes the relationship between the NPDES Program
and the Water Quality MRv agement (WQM) Pl ”lng Program in reviewing
and impacting program activities of the States and designated planning
agencies. The NPDES Program involvement may include input from all
program activities including permits, compliance monitoring and enforce-
ment. This policy memorandum, in conjunction with our April 2, 1976,
policy memorandum, establishes procedures for coordination to assure
uniformity in establishing water pollution control requirements.
BACKGROUND
The WQM planning effort presently consists of Phases I and II
planning. Phase I plans, which are State developed basin plans
required by Section 303(e) of the FWPC Act, are due no later than June
30, 1976. Of the 644 basin plans, approximately one third have already
been approved. An additional 502 are expected to be submitted by the
June 30 deadline.
Phase II plans are the major plans required by Sections 208 and
303 of the Act. The Phase II plans are the WQM plans developed by
the designat.d local planning agencies for the designated urban—
industrial areas and by the State for the non—designated areas. In
most cases, Phase 11 plans vii.]. include revisions and updates to the
Phase I plan. Where appropriate, Phase I plans nay be resubmitted as
Phase II interim outputs which are due nine months after the initiation
of the Phase II plann(i g effort.
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—2—
Prior to jvj.tiation of the Phase II planning effort, the State and
designated agencies are required to submit approvable work plans. The
State work plan is submitted as part of the continn(v g planning process
revisions required by Section 40 CFB 130.43. These revisions were due
April 26, 1976. The requirements for designated agencies’ work plans
are provided in Section 40 CPR 35.1054—1(f) (now deleted) for agencies
receiving designation approval prior to July 1, 1975, and in the
current Section 40 CYR 35.220 for those receiving approval after
July 1, 1975 • There are 149 planning agencies which received designation
approval prior to July 1, 1975. As of March 1976, 89 of these agencies’
work plans have received approval while the rema(”4ng 60 are expected
to be approved by June 30, 1976. Although not specifically required,
the Regions in some cases are requesting these designated agencies to
revise their work plans to comply with the more detailed requirements
of Section 40 CTR 35.220.
Because of the potential Impact of the WQM plai ii 4 iig effort on the
NPDES Program, it is Important that the NPDES Program be kept apprised
of the ongoing activities of the Water Plm n{i g Program. The develop-
ment of the work plans, continu 4 ’ g planning process revisions, Phase I
plans, Phase LI interim outputs and the final Phase II plans are all
ongoing activities that require input from the NPDES Program.
POLICY
It is Agency policy that the water quality management planning
effort involve the NPDES Programs to the degree necessary to assure
avoidance of unnecessary conflicts and to assure development of an
adequate WQX plan. In fulfilling this policy, each Region is to
establish the following procedures.
1 • The NPDES Program will review work plans and continuing
planning process revisions and will provide appropriate comuents to the
Water Planning Program. Before approval of a work plan, conflicts will
be resolved, wherever possible, to the satisfaction of both programs.
The Water Pla. . 4ng Program will hav, final determination on all such
matters except where conflicts have a ma jor Impact on permit effluent
limitations, compliance schedules or enforceability. In such cases
the Regional A” 4 ’ 4 strator will make final determinations.
2 • Where work plane and continuing pl ”(ng process revisions
have already been approved, the NPDES Program will review these submit-
tal. to determine future involvement with each planning agency.
Appropriate coents will be provided to the Water Planning Program
but it must be recognized that there are some constraints on revising
approved work plans where such revisions affect grant funding. Wherever
possible, conflicts should be resolved either through revision of the
work plan or by some alternative agreeable to the Regional Ad nistrator,
the designated planning agency and the State.
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3. The WPDES Program will review Phase I plans for potentiai.
impact on Permits and Enforcement. Although there is no legal require-
ments of permit conformity with Phase I plans, potential conflicts
should be resolved. Special attention will be given to those Phase I
plans that wiLl, incorporate into the Phase II plan any effluent limita-
tions, compliance schedules or anything else that directly impacts
enforceability of permits. Conflicts will be resolved in the same
ner described in number one above.
4 • Where Phase I plans have already been approved and revisions
are necessary, the changes will be incorporated into the Phase II
plans such that the fin*1 WQM plan will reflect the agreed to revisions.
5. The NPDES Program will review all interim outputs prior to
approval. Conflicts will be resolved as described in number one
above.
6. There will be an ongoing program established to assure a
cooperative effort in supplying pertinent information from one program
office to another. Such exchange of information will include that
required in the April 2, 1976 policy guidance memorandum (attached).
- -. - (
—
‘ Andrew W. Breidenbach
Attachment
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____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
) 1 “ D
•-t,
MEMORANDUM
TO: Regional Administrators
Region I — X
FROM: Assistant Administrator for Water and Razardous Materials (W’R—556)
Assistant Administrator for Enforcement (EN—329)
SUBJECT: Coordination between the NPDES Permit Program and
Water Quality Planning and Management under Sections
208 and 303
INTRODUCTION
This policy statement describes the relationship between the NPDES
permit program and the water quality management (WQM) process under
Sections 208 and 303 of the Act during the interim period before
completion and approval of WQM plans.
This policy applies to the WQM planning conducted by both the State
planning agencies and the designated areavide planning agencies.
BACKGROUND
Each State will be responsible for seeing that a water quality manage-
ment plan is developed for every part of the State by November 1, 1978 In
many metropolitan areas and in other areas with complex water quality
problems, designated areavide planning agencies will do the WQM planning.
The State planning agency will oversee the development of the areawide
plans, and fold them into the Statewide WQM plan. The State planning
agency is responsible for developing vasteload allocations for water
quality limited segments but may delegate this responsibility to
designated areavide planning agencies.
Because of the timing of permit expiration dates and completion of WQM
plans, there will be a second round of permits (especially in the case of
municipalities) that must be issued prior to approval of any completed
outputs from the planning effort
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—2—
POLICY
In order to assure coordination between the NPDES permit program and
the WQM planning program during the interim period before completion and
approval of WQM plans or portions thereof, it is Agency policy that:
1. Permits normally should be issued or reissued with five year
expiration terms, without regard to the expected completion dates
of 208 or WQM plans.
2. Pursuant to 40 CFR 131.1(d)(2) and (3), the areavide and/or
State planning agencies consider existing permit requirements
when developing effluent limitations and compliance schedules.
3. Areavide and/or State planning agencies review draft permits
and alert the NPDES agency where draft conditions deviate from
anticipated planning results. Although existing permits may
conflict with WQM plans that have not been approved, every effort
should be made to resolve potential conflicts. In those instances
where the planning agency indicates anticipated requirements different
from those of the draft permit, the NPDES permit agency and the
areawide and/or State planning agency should discuss such conflicts.
The NPDES agency will make final decisions relative to permit conditions,
pending the Regional Administrator’s action pursuant to 40 CPR 124.23.
4. The areawide planning agency review vasteload allocations and
transmit its findings to the State and EPA.
5. Where WQM plans include wasteload allocations, effluent limits
or compliance schedules, the State planning agency give notice to the
public and affected dischargers and provide opportunity for appeal
of provisions of the WQM plan. No permit shall be deemed to
be in conflict with an approved WQM plan or portion thereof unless
the State has conducted this WQM plan appeal procedure. (See 40
CER 130.32(c))
When interim outputs and/or WQM plans are completed and approved,
the appropriat. requirements of the plan will be incorporated into
respective permits such that all permits issued or reissued after such
approval will not conflict with the plan.
7\ /
— L _ ;•. - ‘
Andrew W. Breidenbach , Stanley W. Legro
/
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• .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
% / WASHINGTON. D.C. 20460
4
UG I
OFFt OF EMFORCEMENT
MEUORANDLflI
TO: Regional Administrators
ATTN: Water Division Directors
Enforcement Division Directors
FROM: Deputy Assistant Administrator for Water Program Operations (WH—546)
Deputy Assistant Administrator for Water Enforcement (EN—335)
SUBJECT: Municipal Wastewatcr Treatment Ponds
As you know, a change to the secondary treatment regulation (40
CFR 133) is being developed. The amendment will, provide authority to
make exceptions to the suspended solids limit in the permits for
municipal ponds uith a capacity of one million gallons per day or
lcss. A copy of the current draft of this regulation is attached.
The draft regulation requires that any adjustment to pond suspended
solids be based on the best pond technolo;y for a given area. “Best
waste stabilization pond technology” means a statewide or •lrea—wide
suspended solids value determined by the permitting authority. The
value would be equal to the effluent suspended solids concentrations
achieved 90 percent of the time by a representative sample of ponds in
the same area. These ponds would have to meet the secondary treatment
BOD requirements.
Numerous groups have been briefed on this proposed change and
there is virtually unanimous agrecmcnt with this approach. Because it
seems highly likely that the regulation will be changed, we need to
consider very carefully projects involving municipal ponds in the
construction grants program. The approaches to permitting and enforce-
ment must also recognize thc impending change. Accordingly the
following guidance is provided:
1. Where the project is to upgrade a pond solely to meet secondary
treatment and would not be necessary if thn r ’u1ation is revised,’ Step
2 and 3 grants should be deferred until thc re&ulation is rcvisad.
Action should thcn be based on the final form of the regula’:ion.
Z
‘ :: Z7 Z ’7
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2. Constraints on buitding Dcv ponds for secondary treatment
should be relaxed provided there is reasonable assurance they will, meet
the revised regulation. Awarding of grants in this manner is provided
for in 40 CFR 35 which provides for grants for segments of Step 3
treatment works construction. In the event that 40 CFR 133 is not
amended for ponds, devices for the removal of suspended solids can be
added on to ponds funded in accordance with this provision.
3. Pending final promulgation of thc amendment to 40 CFR 133 regarding
pond suspended solids, permitting priorities should be adjusted as
follows for all POT ’1s that would be affected by the proposed Special
Consideration:
a) P0T Js that do not have a permit should be given
lowest priority for issuance;
b) P0T%Is that have expiring permits should be given
lowest priority for reissuance; and
c) Modifications should be delayc and condensed içto
a single action whenever possible.
Final effluent limitations in permits are not ‘to be written according
to the proposed amendment unless and until it is finally promulgated.
Although it may be appropriate to write interim effluent limitations to
reflect it.
4. Contemplated enforcement action against a POT’vI for a violation
of suspen ded solids limits in the permit should consider whether: a)
it is reasonable to expect that the POTW will be eligible for the
Special Consideration when it becomes effective, and b) th suspended
solids violation is so great as to exceed the limits that are likely to
result from the application of the proposed Special Consideration. In
the fnterest of reasonableness and best utilization of available
resources, lover priorities should be given to enforcement in situations
likely to be remedied by the amendment to 40 CER 133.
5. The process of determining “best waste stabilixation pond
technology” may be initiated by the Regional Water Divisions now,
wherever it is anttcipetcd that the proposed Special Consideration will
be applied. A first step should be to review the data available and
arrange any needed additional testing. Although initial work may
begin on determinations of “best waste stablization pond te’ hno .ogy,
final determinations must await promulgation of the proposed amendment
and more detailed guidance that will be developed by t1 c Office of
Uater Program Operations as the proposal mover towird finalization in
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—3-
the FcdcrnL e;ister. These determinitthfls should he cLosely coordinated
with the Enforcement Division in the Re ;ionS to assure the establishment
of readily enforceable conditionS and compatibility with the NJ.’DES
pereitt nC process.
6. Preliminary contacts with NPDCS states should be r3ade to alert
them to the potential amendment and any needed technical work leading
to the establishment of “best isaste stabilization pond technology” that
may bc anticipated. Joint efforts with all the States are encouraged in
view of both the enforcement and construction grants iciplications.
If this approach should cause any problems in your Region, please
let us know.
, ‘ I
: I %
rz ? /.
/ ohn T. Rhett eff rey G. . 1iller
I
Attachment
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[ Section 306(d)(1) and 301(b)(J)(B) ‘f the Federal Po1.ttitin
Control Act Anendmcitts of 1972 (33 U.S.C. 1342, 1345, and 136])J.
Daite:
Administrator
* * ** 1* :w***
Section 133.103 is amended by adding paragraph Cc) as follows:
133.103 Special Considerations
Cc) The Regional Administrator (or, if appropriate, the State
subject to EPA approval) is authorized to adjust the nininun levels of
effluent quality set forth in paragraphs (b)(1), (b)((2) and (b)(3) of
133.102 for any publicly owned treatr cnt works, to conform to the
suspended solids concentrations achievable with best waste stabilization
pond technology, provided that: (1) :a cc stabilization ponds are the
sole process for secondary treatment; (2) the maxiiuum facility design
capacity is one r iLlion gallons per day or less; and (3) operation and
maintenance data indicate that the requirements of paragraphs (b)(1),
(b)(2) and (b)(3) of 133.102 cannot be achiaved. the term “best waste
stabilization pond technology” neans a suspended solids value, determined
by the Regional Adniniserator (or, if ap?ropriate, the State subject to
EPA approval), which is equal to the f fluent concentration achieved 90
percent of the tine within a State or appropri.tLe ContiguouS guographical
area by waste stab Llizatioii poiids that arc achieving, thc levnls of
effluent quality established for biochemical nxygen dcru nd in 133.102(a).
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UNITED STh ItS ENVIRONMENTAL PROTEC . )N AGENCY.
WASHINGTON. D.C. 20460
j If% .7
M J .1.4
oc.ic cc
GINE *I. COUN$C .
SUBJECT: American Petroleum Institute v. EPA --
Effluent Guidelines for Petroleum Refining ——
INFORMATION MEMORANDUM
FROM: General Counsel (A-l30)
TO: The AAivi(nistrator (A-lOO)
HRU: AX
On August 11, the United States Court of Appeals for
the Tenth Circuit handed down its decision in American
Petroleum v. EPA , No. 74-1465 and related cases. The court
upheld the New Source Performance Standards and most of the
1977 effluent limitations for the petroleum refining industry.
The 1903 limitations were remanded.
The 1977 limitations were upheld except for a minor
provision dealing with treatment of storm runoff. In reaching
its decision, the court upheld EPA on most of its legal conten-
tions concerning its authority and methodology. Thus, the
court found that EPA has power to promulgate ëf fluent litnita—
tions, although, following the Fourth Circuit (in DuPont v.
Train , 8 ERC 1718, cert. granted , June 21, 1976), it labeled
them presumptively applicable. Unlike the Fourth Circuit, it
refused to remand the variance clause, holding that it was
lawful on its face, and its application in practice could be
contested in permit issuance proceedings. The court rejected
industry’s argument that the regulations must establish a
“range” of li”itations.
With regard to industry’s argument that EPA must perform
a balancing of costs against environmental and societal benefits,
the court said that the value of environmental benefits “is not
capable of present—daydetertnination,” and that societal benefits
are for Congress to assess. The court approved EPA’S more limited
cost—effectiveness analysis as satisfying the FWPCA. An inter-
esting aspect of this decision is that it was written by Judge
Breitenstein who also sat on the panel hearing the cases in the
Fourth Circuit; on several important issues, he has now disagreed
with his earlier opinion.
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2
On technical issues, the court’s opinion approved EPA’S
statistical methodology for arriving at daily and monthly
limitations and refused to order (as did the Fourth Circuit
in FMC Corp . v. Train , 8 ERC 1731, 1740-41) that EPA revise
the regulations to allow so—called nexcursions,u or days of
excused violations of effluent limitations. EPA s net/gross
regulations, 40 CFR §125.28, were upheld as providing adequate
credit for uncontrollable pollutants in intake water. And EPA
was found to have authority to require, by 1977, in—plant
process changes that are normal practice within an industry.
The 1983 regulations were remanded because the court
could not understand their basis from EPA’s rul Inaking
documents.
-, , , Lt
G. William Prick
Prepared by:AWEckert :bla :8/23/76
cc:
Breidenbach
Legro
Beck
Miller
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1D U 4
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
“4 WASHINGTON. D.C. 20460
AuG 24 1976
o.r ,cc or
C(N RA4. COUNSEU
‘1-
MORANDUM
SUBJECT: Binding Effeèt of 303(e) Basin Plans
PROM: General CounseL tA—130)
TO: Regional CounseL, Region IV
FACTS
The Florida Department of Environmental Regulation (DER) has
submitted 303(e) Phase I Basin plans to EPA for approval. The plans
contain determinations that “water quality limited” segments exist in
specified places and recommend application of certain limitations
necessary to meet water quality standards. In its submission, the DEft
specifically states that “none of the provisions of this document are
rules, regulations or limits. Instead this is a technical document
which may be utilized as one source of information for rule development
and issuance of permits...” Representatives of the Florida phosphate
and citrus industries have questioned the technical basis of the plans
and have asked whether the plans will form the basis for their NPDES
permits.
QUESTION 1
Does the express intent of the State submitting the basin
plan that it be merely a source of technical
information rather than a rule) have any effect on the
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2
manner in which EPA utilizes the plan, if EPA is
responsible for issuance and enforcement of NPDES
permits throughout that State?
ANSWER
Unless a State certifies under section 401 the limitations
contained in a 303(e) pLan, EPA is not bound to include
such limitations in the permit although EPA should give
great weight to the suggested limitations.
QUESTION 2
If State recoimnends a “more stringent limitation” based
on a “water quality segment” determination, and if this
recommendation is contained in an EPA—approved Phase I “basin
plan”, is EPA required to impose a “more string nt
limitation” in the initial issuance of NPDES permits?
ANSWER
If a State certifies that a segment is water quality
limited, then a permit must contain core stringent
limitations necessary to meet water quality standards.
EPA is required to impose such more stringent limitations
in the permit If the State does not certify the specific
limitations which are to be included in the permit, EPA.
must make a determination of the appropriate limitations
necessary to meet water quality standards. EPA must
give great weight to state recommendations contained in
Phase I basin plans.
QUESTION 3
In the situation described in Question (2), above,
must EPA modify existing NPDES permit conditions to be
consistent with Phase I “basin plan” recommendations?
ANSWER
It is EPA policy not to modify existing permits when
state requirements or recommendations change during the
course of the permit. EPA is concerned with’ maintaining
a permit program which creates a stability both for the
permitting authority and for the discharger.
Therefore, EPA believes that permits should be modified
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3
only in extraordinary circumstances. Section 402(b) (1) (C)
provides that permits can be terminated or modified for
cause, including, but not limited to the following:
“(I) violation of any condition of the permit;
“(ii) obtaining a permit by misrepresentation, or
failure to disclose fully all relevant facts;
“(iii) change in any condition that requires either
a temporary or permanent reduction or elimination of the
permitted discharge..
Requiring that permits be modified each time a State amends
its regulations or its plans could create administrative
havoc and would result in great uncertainty for the
discharger.
QUESTION 4
Will a NPDES permit applicant/holder be entitled as a
matter of right to challenge the technical basis of an
EPA—approved State “basin plan” at the stage of
issuance/modification of a NPDES permit to that source?
Should the challenge to the basin plan instead be at the
stage of EPA approval/disapproval of the plan? What is
the proper forum?•
ANSWER
A permittee will be entitled to challenge the technical
basis of a Phase I basin plan at the stage of permit issuance
To the extent t1 at the limitations contained, in a basin
plan are adopted as State law, EPA must, of course, apply
those limitations in permits, and challenges to the.
limitations may not be considered in NPDES permit issuance
proceedings. Instead the discharger must challenge such
limitations in state proceedings at the time the plans are.
being considered or adopted. Since EPA approval or disapproval
of a section 303(e) basin plan has no legal implications:Upen
the inclusion of specific limitations in a NPDES permit,
it would not be appropriate for a permittee to challenge
the conditions at that point.
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4
DISCUSSION
Your letter of July 2, 1976, raises a number of questions regarding
the extent to which limitations contained in a Phase I Basin Plan
required by section 303(e) of the FWPCA are binding upon EPA in its.
issuance of a permit under section 402.
The requirements for 303(e) planning have been coordinated with
the requirements of section 208 planning for the development of
Water Quality Management Plans. Regulations issued on November 28,
1975, cover both “Policies and Procedures for Continuing Planning
Process” (40 C.F.R. 130) and “Preparation of Water Quality Management
Plans” (40 C.P.R. 131).
However, as the preamble to those regulations states:
Phase I plans consist of those plans submitted prior to
July 1, 1975, or those plans submitted prior to July 1, 1976,
where an extension of up to one year has been granted by the
Regional Administrator for specific basins or other approved
planning areas. For Phase I, the requirements for planning
are those requirements set forth in 40 C.F.R. Parts 130 a nd
131 “Water Quality Management Basin Planst promulgaied on
June 3, 1974.
Those regulations, the “old” Part 131, clearly state that limita-
tions contained in Phase I basin plans are to be given great weight.
in establishing appropriate permit conditions for dischargers when
lilitations relating to such dischargers are contained in the basin
plan. Former section l3l.310(a)(l) provided that:
“The States and EPA will use their best efforts to
establish permit terms and conditions consistent with the
applicable individual target effluent lfsnitations and
target abatement dates established in any approved basin
plan; subject, however, to all the rights that the permit
applicant and other interested persons may have under State
and Federal law to contest such target effluent limitations
and target abatement dates in permit issuance proceedings.”
Section 131.508 further provided that:
“Each permit issued under the National Pollutant Discharge
Elimination System to any source covered by the basin plan
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5
shall be prepared in accordance with the basin plan, as
provided by in 0131.310. Failure of any permit to conform
with the requirements of this section may constitute grounds
for the Regional Administrator or the Administrator to
object to the issuance ot such permit.”
Thus, it is expected that in developing a permit for a discharger,
the permitting authority, whether state or Federal, will rely heavily
upon the basin plan in its determination of conditions necessary to
.meet water quality standards under section 301(b)(1)(C). In most
circumstances, it would be reasonable to expect that the permitting
authority would initially propose limitations consistent with those
contained in a 303(e) basin plan. However, the permitting authority
is not bound to issue an initial permit containing such limitations.
If coimnénts made in the public hearing (as required by section 402 of
the FWPCA and 40 CFR 136) establish the need for other, alternative
limitations, the permitting authority is required to substitute such
alternative limitations if supported by the weight of the evidence.
Similarly, the question of the appropriate limitations is a factual one
which can e challenged under 40 CFR 136 by a request for an adjudicatory
hearing. I’ -
A State, however, can make limitations contained in a 303(e) basin
plan binding upon a discharger by certifying such limitations to the
permitting authority under section 401 of the Act. If limitations are
certified, they must be included in a permit without further Federal
action or review. A permittee who wished to challenge such certified
limitations would be required to make such challenge in state pro-
ceedings and would not be entitled to a NPDES adjudicatory hearing.
Having stated our position in regard to the “Phase I” 303(e)
plans, I should note that the situation in regard to “Phase II” 208
plans is quite different. Section 208(e) states that:
No permit under section 402 of this Act shall be
issued for any point source which is i conflict with a plan
approved pursuant to subsection (b) of this section.
1 / I note that both the Assistant Administrator for Enforcement and
the Assistant Administrator for Water and Hazardous Materials have reached
the same conclusion: “there is no legal requirement of permit conformity
with Phase I plans”. I attach a copy of their July 7, 1976 memorandum to
Regional Administrators on this subject.
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6
The new Part 130 regulations further define this prohibition:
(c) No permit under section 402 of the Act shall be
issued for any point source which is in conflict with a
plan approved by the Regional Administrator in
accordance with.this part and Part 131 of th is Chapter,
provided however, that no such permit shall be deemed to
be in conflict with any provision of such plan or portion
thereof, hereafter approved, which relates specifically
to the discharge for which the permit is proposed, unless
the State has provided the owner or operator of the dis-
charge and the interested public with notice and the
opportunity to appeal such provision. (40 C.P.R. 130.32)
Thus we contemplate that specific provisions of 208 plans which
directly affect a discharger can be both administratively and judicially
reviewed apart from the permit issuance process. Conditions which could
have been subject to such review will be automatically included in
proposed permits. Such requirements will then be considered similar to
conditions required by state certification under section 401 and willS
not be reviewed or evaluated by EPA during the permit proceeding.
cc: Mark Pisano
Chris Beck
Jeff Miller
Brian Molloy
All Regional Counsels
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I — ,
r - . -?
SEP 1 1918
4 1ORA11DUM
TO: Director, !.nforcement Divieton, Region L X
FROt’i: Deputy Assistant Adninietrator for Water Enforcement (EN—335)
SUBJECT: Ipact of Phase I Basin Plans on !ZPDES Permits
In response to your oenorandi of August 6, 1976, 1 am attaching
a copy of an August 24, 1976, namoran i from the Office of General
Counsel addressing the L pact of Phase I basin plans on P !S permits.
Phase I basin plans are those developed pursuant to Section 303(e)
of the Act and nay include waste load allocations. The plane, in
moat cases, were to be submitted to the Regional Administrator by
July 1, 1976.
Generally, the C CC memorandum indicates the fo11owir :
1. There are no legal implications of Phase I basin p1a is on
::PDES permits, but great weight s.. u1d be given to the plan recomnenda—
tiona and/or limitations.
2. If a permit is issued to a discharger in a State certified
vater çual.ity limited segment of a stream, then the NPDtS permit must
reflect the mere stringent effluent limitations necessary to meet the
water quality standards. In these cases, the Phase I basin plans
must be given serious consideration.
3. Existing NPD!S permits should not be modified to conform to
basin plans, except in extraordinary circ stanCeS.
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2
4. NPDES pernits incorporating effluent limitations from basin
plans can be challenged on the technical basis. The exception to
this is where the limitations are adopted as State law.
It eust be noted that the above applies to Phase I basin plans,
and there should be no application of this emorandun to Phase II
plans.
/5/
Jeffrey J. Miller
cc: Enforc ent Division Directors
Regions I — VIII
Ragion X
Director, Facilities Technology
Division, Region II
Director, Water Division
Region VIII
EN—336:EKraner:st:rin 3109 WSM 8/27/76 x50750
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• .,4, p
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C. 20460
I•no’t
4 OCT1976
OFFICE OF ENFORCEMENT
rt
MEMORANDUM :
To: Regional Enforcement Directors
NPDES State Program Directors
Subject: Phase II Iron and Steel Effluent Guidelines ——
Mahoning River Valley
In March of this year, EPA announced its decision to exempt steelniaking
facilities in the Mahoning River Valley region of Ohio from nationwide
B?? effluent limitations. EPT limitations for these facilities will be
established by the State of Ohio. This decision was made after an
intensive year-long economic study conducted by EPA and a consulting
firm.
N mterous inquiries have come in since March relating to relief from
the application of effluent guidelines for industrial facilities in
other categories and other geographic regions. The purpose of this
memorandum is to provide you with some information upon which to base
your replies to such inquiries and to advise you that permit program
policy pertaining to the use and application of effluent guidelines
limitations has in no way been modified or amended as a result of the
Mahoning Valley decision for Phase II Iron and Steel Manufacturing.
The special study of the Mahoning Valley came about as a result of
public comments, received in response to proposed guidelines for Phase I
iron and steelmaking, concerning significant employment reduction in the
area. The decision to examine economic dislocation in this region came
only after it became clear to EPA that physical and geographical
characteristics of the region and the relationship between the steel
industry and the regional economy were probably unique (see 41 PR at
12994, March 29, 1976). No action based upon these beliefs was taken at
the time of the promulgation of Phase I guidelines on June 28, 1974, but
was ceferred until promulgation of Phase II guidelines on March 29,
1976.
At this point I want to emphasize that the relief provided
Mahoning Valley steel facilities was part and parcel of the effluent
guidelines development effort for the steel industry. As such, a
detailed study was made of the particular circumstances confronting
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2
these facilities and the comparative i ’pacts on these as .opposed to
other plants and facilities in the steel industry. To date, r.o other
geographical region or industrial category concentrated within such a
region has been the subject of similar study and concern in connection
with effluent guidelines or new source performance standards development.
Moreover, we do not expect that any other area of the country will show
the same concentration of similarly aged industry whose closure would so
drastically impact the regional and national economics. Consequently,
we do not expect that the Mahoning situation or solution will be duplicated
in any other part of the country or in any other industrial category. It
must be emphasized that the “Mahoning” decision was based upon EPA’s
analysis of the £9 impact of regulations upon a qroup or category
of plants and could not have been made had we been dealing with only one
plant or basing our decision on plant-by-plant considerations.
Therefore, in replying to inquiries concerning relief from regional
economic impact in permits for individual facilities, the following
points must be taken into account:
o Where effluent guidelines and/or new source performance
standards have been promulgated for the pertinent industrial
category, those guidelines and standards will be followed
in the preparation of the permit.
o ; herc “best engineering judgment” is applied in developing
permit conditions and limitations, the requirements of section
402 (a) (1) of the Tt7PC , as interpreted by Deci3ions of the
General Counsel, will be followed in determining the factors
to be applied in a given case.
o In either case above no regional economic factors will be
considered in determining appropriate permit conditions unless
so required by promulgated effluent guidelines applicable to
the point source receiving the permit.
Attached are an cxample of a request for Mahoning—type relief
su nitted by a facility in Region I and our response. You nay find the
language and ideas helpful in responding to similar requests.
If there are further questions, please do not hesitate to call Bill
Jordan in the Headquarters Permits Division or Bob Er ztett in the Water
Enforcement Division.
5 k ,
Stanley if. LegTO
Attachments
RCBrowne:JBMolloy:lsy:EN-338 :x58731 :8/20/76
bcc: Jeff Miller, EN—335
OE Chron
Reading
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ENVIRONMENTAL PROTECTION AGENCY
‘,‘,
9 JUL 76
ionorab1e Edward M. Kennedy
United States Senate
Washington, D.C. 20510
Dear Senator Kennedyt
This is in respons. to your une 3 letter to Russell Train,
Adniniatrator of the Environmental Protection Agency (EPA), concerning
the L. S. Stax ett Company precision tool manufacturing facility in
Athol, Massachusetts. I r. Train referred your letter to me and asked
that I respond to you directly. In order to address the issues raised
in r. Starrett’s letter to you of May 20, 1976, members of my staff
were in touch with personnel in EPA’ a P egiona1 Office in Boston and the
Massachusetts Departaent of Natural P esources, Division of Water Pollution
Control. While we appreciate the Company’ a concerns in this situation.
we do not believe that those concerns wax nnt the relief sought, for
reasons detailed below.
The Act provides for a comprehensive program through which all
industrial dischargers are to achieve best practical control technology
currently availabl, by July 1, 1977. This technology is defined in
terms of national effluent limitations guidelines for various industrial
categories, which are to be promulgated by the Admir.istrator under
section 304 (b) of the Federal. Water Pollution Control Act (the Act).
The permit issued to the Company was based en effluent guidelines
promulgated for th. industrial subcat.gory appropria t. to the Company’ a
operations. Although the effluent guidelines provide for exceptions
for facilities ont ilIr’g significantly different factors from facilities
considered in developing the guidelines, the L. S. Staxrctt Company has
not made a chewing that such fundamon 3I1y different factors exist with
respect to its operations. Instead, these effluent guidelines, as well
as any additional, more ctringent requirements dictated by water quality
standards, were applied to L. S. Starrett Company as they are applied to
individual diachargers pursuant to the National Pollutant Discharge
Elimination System (NPC:S) permit program. In accordance with the
regulations implementing the 1PDES, which provide for extensive public
participation and due process protections, a permit is generally issued
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2
after negotiaejo with the discharger. Even after the determination to
issue a permit is made, the permittee may request a formal adjudicatory
hearing on the requirements in the permit.
Under this program, NPDES permit nwr.ber t’ 001350 was issued by the
EPA to the L. S. Starrett Company on September 20, 1974. Following
issuance of the permit the L. S. Starrett Company did not formally
object to the conditions of the permit by requesting an adjudicatory
hearing. Thus, the permit went into effect without challenge. It
should be noted that Massachusetts has a permit program which, although
it has not been approved pursuant to section 402 of the Act, is substantially
sb ilar to the UPDES permit program. Consequently, EPA and Massachusetts
hav, entered into an agreement for issuing joint permito satisfying both
Federal and State requirements. The subject permit was issued jointly
pursuant to this agreement and could not effectively be modified without
action by both EPA and the State. 1e understand that Massachusetts does
not believe that the permit should be modified. Even in the absence of
such a joint agreement, the State would have to concur with the conditions
of a permit proposed to be issued or modified by EPA, pursuant to section
401 of the Act.
Upon learning that best practical control technology would cost the
Company more than anticipated, Mr. Starrett requested a modification of
his permit. On April 22, 1976, a meeting was held and attended by
representatives of Massachusetts and the EPA during which it was explained
to Mr. Starrett that a modification in terms of an exception to national
effluent limitations guideline3 could not be i ade. However, because of
the State’ s delay in the approval of the engineering plans an “informal
modification” in the compliance schedule, postponing for three months
the interim due date for completed plans, was granted. Since that
meeting, Mr. Starrett has been repeatedly advised of his duty under the
permit to meet national standards by July 1, 1977.
Despite the continuing position of EPA and the mandate of the law,
Mr. Stazrett is still seeking an exception to the application of national
effluent limitation, to the Starrett Company. Jr. Starrett bases his
contention on three argienta. First, Mr. Starreet argues that the
discharge from his operation does not affect water quality. Second.
Mr. Starrott contends that the imposition of best practical control
tcchno1oc y on the Company’s facility is not cost-effective. Third, he
asserts that the circumstances of the L. S. Starrett Company warrant an
exception to the application of national standards as accorded in the
case of the Mahoning Valley steel companies. None of these arguments,
however, is supported by the letter or the spirit of the law.
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3
With respect to the first argument, in passing the current Act,
Congress repudiated the prior law’ a sole reliance on water quality
standards to achieve clean water. Under sections 301(b) (1) (A) and (C),
direct diachargers are required to conform to both technology based
effluent limitations guidelines and water quality standards, whichever
are stricter. Thus, in the present situation, even if the L. S. Starrett
Company discharge cannot be shown to be damaging the water quality of
Millers River as Mr. Starrett alleges, the point source effluent standards
must be ret. It should also be noted that water quality standards are
largely irrelevant to the discharger in question. Water quality standards,
as they presently exist, are designed primarily to reflect the pollution
effects of organic pollutants. The pollutants associated with the
Company’ a discharge are primarily non—organic, heavy metals.
As to his second arg tent, that the imposition of best practical
control technology on the Starrett facility is not C03t-effective,
Mr. Starrett’s position is untenable. Under section 304(b) of the Act,
the Administrator promulgated national effluent limitation stondards to
be stat by categories of industrial facilities to achieve best practical.
control technology. In developing these standards, the Administrator
must consider, arcng other factors, “the total cost of application of
technology in relation to the effluent reduction benefits to be achieved.”
However, this cost factor is “not [ to] be considered at the time of the
application of an effluent limitation to an individual point source
within [ a category].” A Legislative History of the Water Pollution
Control Act Amendztents of 1972 , January 1973, p. 172. In addition, the
United States Circuit Court of Appeals for the Third Circuit, held in
American Iron and Steel Institute v. EPA , that
“while costs were intended to be given greater
weight in defining “BPCTCA” (flest Practical
Control Technology Currently Available], it is
clear that even with that 1977 standard, the
cost of ccsç liance was not a factor to be given
priiaazy impdrtance. Furthermore, Congress
clearly intended that the Administrator consider
costs on a class or category basis, rather than as
( icJ a plant—by-plant basis. I s Senator Muekie
stated in support of the House—Senate Conference
Coiimittee Report: .
‘The Conferees agreed uon this limited
cost—benefit analysis in order to main—
tam uniformity within a class and category
of point sources subject to effluent
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4
limitations and to avoid imposing on
the Administrator any requirement to
consider the location of sources within
a category or to ascertain water qu iity
impact of effluent controls, or to
determine the economic ix’pact of controls
on any individual, plant in a single con-
munity. ’ . .
With respect to the overall impact of the legislation,
Congress clearly contemplated that cleaning up the
nation’s waters might necessitate the closing of some
marginal plants. s Senator Eentsen stated:
‘There is no doubt that we will suffer some
disruption in our economy because of our
efforts; many marginal plants may be forced
to close.’
In si , while it is clear that the A 4 ’istrator
must consider cost, some amount of economic dis—
ru tion was contemplated as a necessary price to
pay in the effort to clean up the nation’s waters,
and the Administrator was given considerable dis-
cretion in weighing costs.” 8 ERC 1321 at 1334 and
1335.
Thus, it is clear that Congress inten ied economic factors be considered in
the development of national effluent limitations, but that they not be
considered in assessing compliance by individual facilities with those
limitations.
With respect to the third arg m ent, the tiahoning River Valley
Region is a unique case, unlikely to be duplicated. In that case
effluent limitations guidelines were specifically established under
section 304 of the Act for iron and steel plants within a particular
regional area, which allowed those few operations to reet less strict
standards. Authority for determining the need for special regional
effluent guidelines was found in the discretionary powers of the
Administrator under section 304 (b) (2) (3) of the Act. However, the
Administrator’ s decision carefully, and purposely, limits the applica-
tion of this exception. In the Zlahoning River Valley the economic
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5
posture of the industrial plants and the regional ramifications of E1’A
enforcement were important determinants. The plants were economically
marginal and negatively profitable before the addition of pollution
C03t1, and it was estimated that some 25,000 jobs in the stesi. making
facilities in question would be lost or seriously affected if compliance
with national guidelines were enforced. Indeed, enforcement of the
national effluent guidelines would have caused the closing of several
steel plants and led to severe regional economic dislocations of national
importance. It was consideration of these significant external costs
in relation to an entire region that resulted in the determination to
develop regional guidelines. These factors in the !lahoning River
Valley case which led to the Administrator’ s decision are simply not
present in Mr. Starrett’s situation. Thus,. there is no possibility that
the parameters of the Hahoning determination could be expanded to include
the Starrett Company. It should also be noted that the facts cited by
the Company do not indicate a great likelihood of any economic dislocation.
The costs as associated with, the capital requirements of installing
pollution control technology would appear to appro cimate one to two
weeks’ p3yroll for an operation of its size. Costs of this tr.agnitude
represent an investr ent in pollution abatement coensurate with other
manufacturing facilities of this type.
In codification of the L. S. Starratt Cor pany discharge permit
is contrary to the law as passed by Congress and it plemented by EPA.
Establishing effluent limits based on the availability of technology to
abate pollution, rather than on the ability of riv2rs and streams to
assimilate it, is one of the ir st fundamental and important aspects of
the Act. It would be an abdication of EPA’s pollution control respon-
sibilities to find that exceptions could be made based on economic
exigencies.
I assure you that we are aware of and attentive to Mr. Starrett’s
particular difficulties and will continue to assist him in every way to
meet the requirements of the law. The Regional Administrator in Boston,
Hr. John PlcGlennon, would be pleased to meet with Mr. Starrett at any
t.tne to discuss L. S. Staxrett Company’s pollution abatement problems.
}iowever, in working on this matter, EPA must continue to implement the
Act and support established policies for strong and uniform application
of national effluent standards.
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6
I hope you find this letter responsive to your and r. Stzrrett’ s
questions. If you have any re questions or co!lents please do not
hesitate to call or write.
Sincerely yours,
fr
Stanley W. Legro
Assistant Ad 1’ j strator
for Enforceff nnt
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.Zf 1cz c i9
6—3—7 6
Respectfully referred to:
Hr. John A.S. MeClennon
Regional Administrator
Environmental Protection Agency
!ecause of the desire of this office to be
responsive to all inquiries and counicattons,
— conSider tjen of the attached is
sted. Your findings and views, in
licate tor, along with return of the
enclosure, will be appreciated by
Tore 2 OFFICE OF HON. EDWARD M. KENNEDY
JOHU F. KENNEDY FEDERAL BU;LDiNG
GO iERF1M NT CENTER
BOSTON, MASSACHUSETTS 02203
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• . . .. •, Copy to Mr. Donald Wynne •‘ lCII *i wautwOsiSS,.
£ NO . U $ a Iial.c.uc%.3. N. J OP q • I aI,
l. VtLa 3 U 5 CNlC& O iOadd. .5 ., If
WOUN £l V. U I a C I .. v, , piq• p $ .,.
.1105 iS O .. I 3?I.aN0 I.01 A101I.CI 500.0. ISIS hI? W*ININGISN SI
Ii %UO 55511%. %llrqj • •CiOiI.C •?0,ON?Os. ONViSIO. CiNaD i. 37
THE L. S. STARRETT COMPANY
P.IC,$uON tOOlS • SlA%. I N O IC aY O I I • 5711%. 7*055 • •S0Uw PlaY $VSCS •
S4ND SiWS • SANS INIVIS • V SIS • P 5 10 1 5 10 w SACS ILOCIS • SUSPiCS PI.at S
ATHOL, MASSACHUSETTS 01331. U.S.A.
tILIPWONt 5l7% 14 5. 3 5Sf
May 20, 1976
Hc3. Edward P. Boland
2L J. itayburn Pouse Office Building
Ias.ington, D. C. 20515
Dea Congressman Boland:
e haze a real problem with the EPA and I’r asking you if you can help us
in our present SLtuatiOn. As I will relate below, we havø over the years
taken care of the discharges fran our plant into the MLllers River n one
ma:mer or another. Now the EI’ i forcing on us a tremendous expe giture
which we do not think is justified. • Lic
We had a meeting with the State Division of Water Pollution ontro sand also
with EPA on Thursday, April 22. The purpose of the r eeting was to as that
the equipment that we now hive to take care of our pl3ting room diachar as
be detlared the best practical treatment, or to c: ert7t u from spending the
considerable amounts of money to eet what the EPA is calling the 4 t prac—
ticai. treatment, to be in operation by July of l 77. ¶le ;erc tur ê down,
mostly on the e:ceuse that they in Boston did not have po’ er to naketany
changes such as we requested. 1
Here is the background. First of all, we en 1oy approxirI3t ly 1,200 people
in Athol, the largest single enployer in the town, the po’ ulation of which
is appro:cimately 12,000. Our business is primarily making precision tools,
for which electroplating is a necessary operation, but electroplating is not
our ‘aLn buMines,. n wà annot b ‘omrared ‘fr1 thn . r n4.q
nary operation is plating. Over the years we have ertai.nly £cted in good
faith in that for many y’ ar hQfore environmental protection became pooular
we bad embarked upon a prb ram of doing eve.ryth1n we thoii ht necessary to
clean up the fillers lUver ourselves, and we have spent quits a bit of money
over the yearn doing this. Ten years ago, in 1966 — again before environ—
nental t tion • es • bi ssit — :e asked the ir.hu tt o
P ib1ic !! aLth, Dtvision of Sanitarj En ineer1n:c, to cOL1 up end check us out
to see if what we lisd done ‘ s in theLr opinion satiafactory for river
quality. At that tirne they said it was.
Since then r.ors rin; nt 1us have been ip ,1i d to th :Jv r and a c ut
1 72, at an initial cost of bou $27,000 and a cur:ent annual cost of at
least $9,0 C), we iIlSt3ll.2d and pu [ a a treatment plant for our clectro—
p1atin di3charge.
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Uom. dw. P. Boland —2— 5/20/76
The current status of the Millers River is that it is classified as a B
ri.-e:, meaning suitable for sw 1 (ng and fishing. Even though discharges
both upstream and downstream from us do not allo i the river to eee this
classification at present, what is going into the river from our plant does
alj.c this c1a stfjr.ation to be met. Our con ultant , Tie & Rni d. ad rl.s
s that the rive: is not being affected by our discharge, and both the EPA
an the Massachusetts Division agree to this. A more costly nnd complex
treae ent plant is not cost—effective and should not be forced upon us.
W .s: the EPA is falling back on is that part of the law that specifies ce.r—
tam limits of point source discharge readings taken ri bt at the discharge
itself, with no considetation beIng given to the quality of the river it-
self. e say that simply to single out point source is arbitrary and cer—
taLmiv not cost—effective. As a further e:cample, the steel nills in Ohio’s
ho i Valley have been told to put in the best available treatment thst
meets water quslit7 standards in the river, not at the point source, and we
should be accorded the sa.’!te standards.
Tha: we are talking about for money is a first year cost of ap rodmately
$200,000. $31,000 of this is the current estimated annual ooerating and
maintenance cost, ;hi h of course will increase wlth tine. The rest of it
is in moving, building, and cn inearin costs. We think this is a tremend-
ous economic burden to put on us for no demonstrated dvane e. We think
the thrust behind enviro eetal controls as applied to rIvers is the quality
of ths river itself, not simply control of point source regardless of its
effect upon the river or economic effect on the conpa y involved.
( eci Ically I would like to know if the law that EPA has rccified limits
of point source discharge is actually part of the law as passed by Congresè
J or wore those lLnit promulgated by the EPA the sf!lvns under n”thority from
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/
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460 ,
15 OCT 1S76
OFFICE OF ENFORCEMENT
H
MEMORANDUM
TO: Acting Chief, Industrial Permits Branch
FROM: Chemist, Industrial Permits Branch
SUBJECT: Asbestos Limits in NPDES Permits — Response to Memorand of
August 31, 1976 from Region III
Introduction
I have reviewed the subject memorandi from Stephen R. Wassersug,
Director of Enforcement Division, Region III to Stanley W. Legro,
Assistant Administrator for Enforcement. This me torandum requests
our advice and concurrence on the issuance of NPDES permits for three
asbestos products facilities within the greater Philadelphia area.
Region III has been alerted to the results of the recent Office of Toxic
Substances (OTS) study released in April 1976, which found measurable
amounts of asbestos fibers in some samples of treated and untreated
drinking water in Philadelphia. The issuance of NPDES permits for the
three asbestos products facilities in question was delayed until
Region III was able to conduct a more detailed study of these facilities.
Their memorandum describes the results of the Region III study as well, as
their recommended approach to the issuance of )PDES permits for these
facilities.
Issue
Region III recommends that the three permits require limitations and
monitoring of total suspended solids (TSS) and pH; these are the only
parameters contained in current EPA effluent guidelines for this industry.
The parameter, “ asbestos, ” is excluded from the effluent guideline
limitations and Region III does not include limits for this parameter in
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the three permits because Region III states that there is no legitimate
rationale establishii g a nt erical limitation and industrial monitoring
by use of electron diffraction in conjunction with electron microscopy
would be too expensive, take too much time for analysis, and would -
provide variable results.
However, Region III is aware of the potential danger of these
discharges and instead reco=ends that the three permits contain a
schedule of compliance that would require closed—cycle, zero process
discharge (i.e., BAT) conditions at each facility by July 1, 1981.
The permits would be issued for five years. The Region asked for the
Assistant Administrator’s concurrence on their approach in this matter.
Discussion
Asbestos fibers in water have been indicated as causing gastro-
intestinal (C I) cancer during the Reserve fining proceeding. Asbestos
has been designated as one of the 65 toxic chemicals in the recent
NRDC—EPA settlement — Appendix A to Consent Agreement following NRDC v.
Train, 8, ERC 2120 et. 2129 (U.S. District Court, D.C., June 8, 1976).
A good discussion on the health aspects as well as on the removal of
asbestos fibers from potable water is given in the publication by
J. Lavrence et al. in Water Res. 9(4): 397 —400 (April 1975).
Asbestos is a generic name that applies to a number of hydrated
mineral silicates. These minerals have a fibrous structure, silky
luster, are difficultly fusible, and generally, highly inert.
Chrysatile, a fibrous form of serpentine, having the formula
RMgSiO or (0H) IgSi00 •H0
4 3 29 6 6 411 2
and which accounts for 95% of the world’s asbestos consumption, is the
most common form found in the aquatic environment. Chrysatile consists
of parallel bundles of submicroscopic fibers which tend to separate on
milling or abrading. Thereby, all sizes of fibers are found in the
environment from the very finest to those visible with the naked eye.
However, the majority of those found in surface water are less than
five microns and about one—tenth micron in diameter.
The three facilities described in the Region III memorandum are:
(1) Nicolet Industries Incorporated
Ambler Asbestos Division
Asbier, Pennsylvania
(2) Nicolet Industries Incorporated
Norristown Asbestos Division
Norristown, Pennsylvania
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—3—
(3) Certain—teed Products Corporation
Plant Number 58
Ambler, Pennsylvania
A description of the waste treatment practice for all of these plants is
given in Attachment A of the Region III memorandum of August 31, 1976.
Influent and effluent sampling data, although limited in quantity, was
available for the Nicolet, Ambler, Pennsylvania facility (Plant 1),
above, from OTS. I discussed this matter with Dr. R. Carton, OTS. The
waste treatment for this plant involves settling, recycling of solids
(asbestos) to process, secondary settling and finally filtration and pH
adjustment. Generally, I would consider this good treatment for this
kind of industry and the responsible Region III engineer, Mr. 3. Davis,
agrees.
According to my best information and as affirmed by Dr. C. H.
Anderson, ORD, EPA’s acknowledged expert on asbestos analysis, the only
reasonably reliable method for analyzing for asbestos in water is by
electron diffraction in conjunction with electron microscopy. This is a
relatively sophisticated analytical process and its application in the
determination of asbestos can cause the problems described in the
Region III memorandum and as outlined above in the “Introduction.” The
OTS data for the Nicolet, Ambler, Pennsylvania plant contains total fiber
counts as determined by electron diffraction—electron microscopy, asbestos
fiber counts for fibers larger than five microns as determined by optical
microscopy, and TSS as determined by Standard Methods for influent and
effluent streams.
I have deduced the following correlation from the trend of these data:
(1) As the total asbestos fiber count/liter increases, the asbestos
fiber count/liter of asbestos fibers larger than five microns increases
as well. Apparently, all sizes of asbestos fibers are removed during
waste treatment and smaller fibers exist in much higher concentrations.
(2) The TSS value appears to vary in the same direction as does the
asbestos fiber count/liter.
(3) The net addition of asbestos fibers larger than five microns
to the receiving stream by this facility is minimal, if not “zero” at
this point in time.
Thus, the inclusion of the parameter, “ asbestos fibers larger than
five microns, ” in the NPDES permits for these facilities and the
requirement that concentration of these larger fibers be “ zero ” for
3PCICA to be achieved by July 1, 1977, would assure reasonably good
control of the total asbestos discharges of these facilities for the
interim period prior to July 1, 1981. Once again, this is based on the
premise that control of the discharge of larger asbestos fibers implies
that the discharge of smaller fibers is under control, although the
latter is a1- ays present in higher concentrations.
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In my opinion, this approach affords us a better and more direct
control of asbestos fiber content being discharged than TSS, which at
best, is still a generic pollutant parameter and is likely to contain
other contaminants than asbestos as well. From a monitoring standpoint,
the determination of asbestos fibers Larger than fivo microns can be
made by means of ordinary, relatively inexpensive optical microscopes
(about $1,000) in a routine manner.
In addition to my discussions of this approach with Mr. Davis of
Region III, it has been discussed with Dr. Carton of OTS and with
Dr. Anderson of ORD — Athens, Georgia. All have agreed that it is the
best that we could do at this point in view of the problem at hand.
Recommendation
On the basis of my review of the August 31, 1976 memorandum from
Region III, discussions with OTS (Dr. R. Carton), OR.D (Dr. C. H. Anderson),
and Region III (J. Davis) and on the basis of my review and analysis of
data developed by ORD and data submitted by Region III, I recoiend the
inclusion in the three permits under review of an “ asbestos ” parameter
with a limitation of zero discharge of asbestos fibers larger than five
microns as determined by optical microscope for BPCTCA to be achieved by
July 1. 1977.
Due to our present knowledge of potential health effects, removal
of asbestos in these permits should be required. My proposal would
solve the problems posed by Region III since it would establish a legiti-
mate numerical limitation (zero fibers over five microns) and would not
be costly for an industry to monitor (optical microscope analysis is
fairly inexpensive).
The trea tent rationale for achieving this limitation is described
for one of the three facilities in Attac ent A of Region Ill’s August 31,
1976 memorandum. Monitoring data for this facility from the OTS survey,
although somewhat limited, indicates that this facility may already be
meeting this limitation, or else, is very close to it. My approach s
discussed during the past month with the responsible Region I II engineer
on this project (Mr. 3. Davis), who thought it to be worthwhile. To
verify that my deduction of a correlation between small sized and large
sized particles, I would recommend a requirement of electron diffraction—
electron microscopy at least once a year.
Murray P. Strier
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UNITED STATES
NOV 81976
MEMORANDUM
SUBJECT: Use of Low Flow Augmentation By Point Sources
To Meet Water Quality Standards
FROM:
Assistant Administrator for Enfi
Assistant Administrator for Water
and Hazardous Materials (WH—556)
General Counsel (A—l3O) 9 f7.Q ”
Regional Administrators
State NPDES Directors
OFrICE or
GENERAL COUNSEL
fl- ? c; -!2-
Introduction
Questions have been raised recently about the propriety of the
use of low flow augmentation as an alternative to treatment by point
sources to meet water quality standards. Some point source dischargers
have proposed to augment stream flow either through impoundment and
subsequent release or by adding water from another water body or
groundwater.
Policy
While EPA policy does not categorically forbid the use of flow
augmentation or dilution to meet water quality standards, EPA policy
discourages the use of flow augmentation as an alternative to treatment
for meeting water quality standards. Low flow augmentation cannot be
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
TO:
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2
considered as a substitute for the use of adequate treatment to
meet water quality standards; rather, it can only be considered as
a supplement to adequate treatment. It is EPA policy that Best
Available Technology (“BAT”, see Section 30l(b)(2)(A)) defines the
minimum level of treatment which is “adequate” and which serves as
the threshold for the consideration of low flow augmentation
as a supplement to meet water quality standards. .JJ National BAT is
defined for many facilities by EPA guidelines and limitations promulgated
under the authority of sections 301 and 304 of the FWPCA. For those
facilities not covered by such national guidelines, an individualized
BAT should be developed by the permitting authority in accordance with
section 402(a) (1) of the FWPCA.
We recognize, however, that in some limited circumstances it may not
be feasible to require BAT as a prerequisite to the use of low flow
augmentation. There may be circumstances where it is not practical or
feasible to require such technology for individual facilities since
BAT may represent more than the maximum use of technology within the
economic capability of the owner or operator. It is therefore EPA
policy that BAT serve as the presumptively applicable threshold for
consideration of low flow augmentation, but that a discharger may present
evidence that less stringent effluent limitations than those required
by BAT are “adequate treatment” in regard to his facility. A discharger
is required to bear the full burden of demonstrating that BAT should
not be required for his facility.
If a discharger is relieved of the BAT requirement, he should still
be required to install the closest approach to BAT which is possible
considering the technological or economic limitations which have been
demonstrated. In no instance may the treatment requirements be lowered
below those required by BPT. All exemptions from the BAT threshold should
be considered temporary and should be reviewed when the permit expires ..L1
1/
Although the discussion which follows specifically addresses point
sources other than publicly owned treatment works, a similar policy
restricting the use of flow augmentation is to be applied to publicly
owned treatment works. See attached ‘ ‘orandum, Appendix A, dated
January 16, 1973.
2/
BAT would presumably be required by 8301(b)(2)(A) in a renewal
permit unless a 8301(c) waivers were applicable. In that case, the
same data should be relevant to determining whether low flow augmen-
tation should be permitted to achieve water quality standards.
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3
Discussion
EPA’s position is based upon both the general legislative intent
expressed in the FWPCA and the specific language and legislative history
of Section 102(b) of the Act. The ultimate goal of the FWPCA as
expressed in Section 101 is the elimination of the discharge of all
pollutants into navigable waters by 1985. The Act throughout places an
emphasis on the control and reduction of the discharge of pollutants by
point sources as interim goals. Technology—based effluent limitations
are required by Section 301 of the Act for all point sources. A standard
of “best practicable technology” (EPT) is required by 1977, and a more
stringent standard of “best available technology” (BAT) is required by
1983 for industrial point sources. For publicly owned treatment works,
secondary treatment is required by 1977 and “best practicable waste
treatment technology” (BPWTT) by 1983.
In addition, the FWPCA establishes as a national goal that
“wherever attainable, an interim goal of water quality which provides
for the protection and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water be achieved by July 1, 1983”.
(Section lOl(a)(2)). Recognizing that this goal would not always be
met through the treatment required by the technology—based effluent
limitations, Congress provided for a water quality standards program in
Section 303 of the Act, and also provided that more stringent effluent
limitations be imposed upon dischargers when necessary to meet water
quality standards, (Section 30].(b)(l)(C)) or when required for the more
general maintenance and attainment of water quality (Section 302).
Sections 301(b)(1)(C) and 302 both emphasize that water quality
goals are to be achieved by limitations on the amount of pollutants which
are discharged into the nation’s waters. While flow augmentation may
result in the reduction of the concentration of pollutants in the
receiving water, it does not reduce the actual quantity of pollutants
which are discharged and which enter the watercourse. I Thus flow
augmentation provides no limitation on the discharge of pollutants
as contemplated in the Act and is inconsistent with the statutory
scheme of the Act. Judicial analysis of comparable provisions of
The Clean Air Act, discussed below, strongly supports this interpre-
tation.
Water quality standards consist of designated uses and water
quality .criteria necessary to support such uses. Water quality criteria
3’
In fact, the addition of water to the watercourse will
increase the quantity of pollutants.
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4
consist of both narrative and numerical criteria. For the most part,
numerical criteria are expressed in terms of concentrations in the
receiving water (i.e. “there shall be no more than X parts per million
of nickel”.) Since the standards are primarily expressed in terms of
concentrations of pollutants in the receiving water, increasing the
flow of stream to reduce the concentration of effluents in the stream
appears to be a pragmatic alternative to treatment as a method for
reducing the concentration of pollutants. The Act itself is silent
on the question of whether this alternative is proper and legal as
a method of meeting water quality standards based on concentrations.
The Act does however address the question of flow augmentation
in a related context. Section 102(b) (1) provides that:
(b)(].) In the survey or planning of any
reservoir by the Corps of Engineers, Bureau
of Reclamation, or other Federal agency, con-
sideration shall-be given to inclusion of storage
for regulation of stream flow, except that any such
storage and water releases shall not be provided
as a substitute for adequate treatment or other
methods of controlling waste at the source.
The type of flow augmentation suggested by Section 102(b) involves
the impounding of water in a water body by a Federal agency and releasing
it in the water body during periods of low flow. The type of flow
augmentation considered in this memo consists of a private discharger
either taking water from one body of water and adding it to the flow
of another body of water during periods of low flow or impounding water
for subsequent release during low flow periods.
We believe, however, that the principles of low flow augmentation
are similar in both circumstances. The main principle is stated in
102(b): “(low flow augmentation]. . . shall not be provided as a
substitute for adequate treatment or other methods of controlling waste
at the source.”
For purpose. of Section 102(b) the Agency has traditionally defined
“adequate treatment” as Best Available Technology and has further
defined the circumstances under which low flow augmentation through
impoundment may be considered as a method for achieving water quality
standards. We attach a memorandum from former EPA Administrator
William Ruckeishaus which addresses this issue.
The legislative history suggests that the minimal level of “adequate
treatment” which must be instituted prior tothe consideration of flow
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5
augmentation to meet water quality standards is best available technology.
In his testimony before the House Cou nittee on Public Works on December 7,
1972, EPA Administrator Ruckelshaus responded to a question regarding
“pollution dillut ion”:
we don’t believe that the solution to
pollution is dilution. We don’t believe that
dilution should be a substitute for quality
treatment facilities using whatever technology
is available. The problem with the New River
and the Kanawha River is that in certain periods
of the year the flow is so low in that river
that even putting the best available technology
on the industries that are there is not going to
provide adequate protection for that water
quality.
• . . the best technology should be applied
but that at that point if you can’t preserve the
water quality, it may be necessary to increase the
flow. ( Legislative History , p. 1228).
The legislative history of the FWPCA clearly discourages flow
augmentation as a method for achieving water quality standards.
Senator Muskie, in presenting the Conference Report on the
Act to the Senate attached as Exhibit 1, the following:
POLLUTION DILUTION
The Conference agreement specifically bans
pollution dilution as an alternative to waste
treatment. At the same time the agreement
recognizes that stream flow augmentation
may be useful as a means of reducing the
environmental impacts of runoff fron non point
sources. ( Legislative History , p. 166.)
This language is also included in the Conference Report itself
( Legislative History , p. 284).
This policy parallels our policy in regard to the use of “Tall
Stacks” for diffusion under the Clean Air Act which has been upheld by
the Courts. Like the FWPCA, the Clean Air Act establishes a schen e for
controlling the effects of pollution in which emission limitation
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6
is preferred over mere diffusion of pollutants. Section 1lO(a)(2)(B)
of the Clean Air Act directs the Administrator to approve a State
implementation plan f or the control of pollution if:
it includes emission limitations, schedules,
and timetables for compliance with such
limitations, and such other measures as may
be necessary to insure attainment and main-
tenance of such primary and secondary stan-
dard, including but not limited to, land
use and transportation controls.
This language has been interpreted by the Fifth Circuit Court of Appeals
in NRDC v. EPA, 489, F. 2d 390 (1974), reversed in part on other grounds
sub non Train v. NRDC , 421 U.S. 60 (1975), as providing that dispersion
enhancement techniques are an appropriate part of a State’s pollution
control strategy only:
(1) if it is demonstrated that emission
limitation regulations included in the plan are
sufficient alone , without the dispersion
strategy, to attain the standards; or (2) if it
is demonstrated that emission limitation sufficient
to meet the standard is unachievable or infeasible
- and that the State has adopted regulations which will
attain the maximt degree of emission limitation
achievable. N DC v. EPA, at 410.
The Fifth Circuit decision has recently been followed by the Sixth
Circuit in v. EPA, 523 P. 2d (1975), cert. denied 96 S. Ct.
1663 (1976), and by the Ninth Circuit in Kennecott Copper Corp v.
EPA, 526 F. 2d 1149 (1975), cert. denied , 96 S. Ct. 1665 (1976).
The regulatory scheme which EPA has developed for implementing the
provisions of Section 110(a)(2)(B) is parallel to the policy stated in
this letter. In general, a source is required to apply the “best available
control technology” (BACT) before diffusion can be considered as an
acceptable method of achieving ambient air standards. If in an individual
situation the application of PACT would be economically infeasible or
would constitute poor engineering practice, a source may be granted
the right to use dispersion techniques in combination with meeting the
less stringent standard of “reasonably available control technology”
(PACT) on a temporary basis if steps are taken toward the eventual
application of PACT. It was this scheme —— the functional equivalent of
treating BAT as the presumptively applicable threshold for consideracion of
flow augmentation and allowing for the possibility of individual exceptions — —
which was upheld by the Ninth Circuit in Kennecott Copoer, supra .
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7
Finally, it should be noted in drawing this parallel between air and
water pollution control strategies that there are even stronger policy
reasons for limiting the use of flow agumentation than there are for
limiting dispersion enhancement techniques for air, since flow augmentation
may have serious, undesirable effects upon the dilution water source
or upon the receiving water. The removal of water from a water body
will obviously decrease the flow downstream from the diversion and
accordingly increase the concentration of pollutants in that segment of
the water body. This increase may effect existing or designated uses.
The decrease in flow may itself impair existing or designated uses ranging
from industrial or agricultural water supply to recreation. Increasing
the flow in the receiving vater may result in scouring or erosion. Water
diversion may also have adverse effects upon the water table. More
generally, such tampering with flow may have long—term adverse impacts
upon the aquatic environment.
Flow augmentation in no way provides for the reduction of pollutants
which is the basis of the water pollution control program envisioned
by the FWPCA. Flow augmentation will reduce the concentration of
pollutants in a river by increasing the river’s flow with water from
another source. It will not however reduce the mass of pollutants in
the receiving water.
Thus, flow augmentation may only be considered as a method of
achieving water quality standards when adequate treatment is not sufficient
to achieve such standards. Even in such situations, flow augmentation is
not necessarily acceptable. A case by case consideration must be given
to its utilization, and the discharger who proposes to utilize flow
augmentation must demonstrate the propriety of such flow augmentation.
Such a demonstration must consider both the economic and environmental impacts
of flow augmentation in both the receiving water and the dilution water
source including its effect upon aquatic life. In addition, the demon-
stration must consider alternatives which could be utilized to meet water
quality standards such as advanced waste treatment techniques, land
disposal, land management practices, process and procedure innovations, and
changes in operating methods. The burden rests upon the discharger to
demonstrate that flow augmentation is the preferred economic and environ—
mental method to achieve water quality standards.
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____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
‘ ‘ I WASHINGTON. D.C. 20460
L aRO V
r . ?‘ P -13
I ODEC 1976
OFFICE OF ENFORCE.MENT
MEMORANDUM
To: Regional Enforcement Division Directors
State NPDES Program Directors
Subject: Questions Regarding the Policy and Procedures for Enforcement
Compliance Schedule Letters
Subsequent to the issuance of the three memoranda on June 3, 1976,
that dealt with enforcement actions against municipal and industrial
dischargers failing to meet the July 1, 1977, statutory deadlines and
proceoures for issuing Enforcement Compliance Schedule Letters (ECSL’s),
a number of questions have been raised and requests for clarification
received. They originate from Regions, States, public interest groups,
and dischargers. The following question and answer format is provided
to present and respond to those concerns.
1. What is the scope of application of the ECSL enforcement policy as
it pertains to industry?
The ECSL policy is to be carefully applied to afford relief only
to those industrial aischargers that: (1) do not presently have a
final effective permit; and (2) cannot achieve best practicable control
technology (BPT) by July 1, 1977, despIte all reasonable gooo faith
efforts to do so. The ECSL is not to be used to give relief to
industrial dischargers that are in violation of compliance schedules
or in any way to undermine the integrity of the July 1, 1977, statutory
deadline. This criteria should limit the number of ECSL’s to less than
250 major industrial dlschargers. The memo “Procedures for Issuance
of Enforcement Compliance Schedule Letters” specifically cites in the
Po1icy” section that ECSL’s are “...to be used only in those specific
Instances described In written policy guidance....’
2. Shouldn’t there be a maximum period of time (say 2-1/2 years)
beyond which no schedule may be extended for an industrial
discharger to achieve compliance?
Any concern over the absence of a predetermined amount of time
that an Industrial discharger may have to achieve compliance is
understandable, However, a basic premise in the ECSL approach is to
establish a schedule that would be no shorter even if an enforcement
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action was taken. That is, judicial action could not be expected to
decrease the time required to achieve compliance. Setting an outside
date Is not consistent with that approach. Each ECSL Is to be
considered on a case—by—case basis after examination of a construction
management analysis. This date must be the shortest reasonable schedule
for the achievement of BPT. The existence of an outside date would be
nothing more than a target and would not provide the Agency with the
Intended response.
3. Do ECSL’s constitute any relief ormight they shield a discharger
from meeting the 1983 statutory requirements?
The ECSL does not constitute any such relief. It applies only to
the 1977 statutory requirements. Potential recipients of ECSL’s are
to be advised that full and timely compliance with 1983 requirements
Is expected. Such a provision should be included in the ECSL.
4. Is there any additional guidance that can be given to characterize
ugood faith”?
In defining agood faith” It Is Important to look to the under-
lying rationale for this policy, i.e., where a judicial enforcement
action would not be expected to result in a penalty against the aischarger
under generally accepted judicial remedial principles, the filing of an
action would not result in any sanction and would only serve to lengthen
the time before a compliance schedule were begun. Accordingly, guidance
in applying the “good faith” standard should be sought in the judicial
opinions which are legion In applying a good faith test. As far as
availability of the factual Information to be used in applying this
legal standard is concerned, the record of performance of a major
industrIal source Is well documented In the compliance files and this
should normally be sufficient to evaluate its efforts. In those cases
where it appears that some additional factual information or clarification
Is necessary, such facts and information are readily attainable in the
customary modes.
5. What Is intended by the criteria limiting ECSL’s to dischargers
that do not have a “finally effective permit”?
The Intention was to limit the availability of ECSL’s to aischargers
tor which the Agency has not taken final action with respect to the
issuance of a permit by July 1, 1977. This would include dischargers
to which the Agency has not issued a permit, municipalities to which
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the Agency has issued short term permits expiring prior to July 1,
1977, and permits containing effluent limitations or compliance
schedules which have been stayed by the pendancy of an adjudicatory
hearing. This was not meant to preclude the use of an ECSL for a
discharger which has agreed to all terms of a permit with the exception
of the physical possibility of compliance by July 1, 1977, has exhausted
Its administrative remedies with regard to that issue, and has appealed
4 ts permit on that issue to a court of appeals. An ECSL would be avail-
able to such a discharger in conjunction with a permit being issued
presently. There is no reason to preclude the availability of an ECSL
to a discharger that pursued judicial review of a permit Issued prior
to the issuance of the ECSL policy. Since one of the factors under-
lying the ECSL policy is the necessity of dealing with physical
inability to comply with the 1977 deadline in a non—resource intensive
manner, ECSL t s should not be issued generally to such dischargers that
Intend to pursue judicial review after receiving an ECSL. That would
result in duplication of effort by this Agency. There may be Isolated
cases, however, in which the Agency has an interest In the completion
of judicial review while not jeopardizing the discharger by withholding
an ECSL. ECSL’s may be appropriate in such limited cases, but should
not be issued without the prior concurrence of the Assistant Administrator
f or Enforcement.
6. May the ECSL be used in cases where there is a finally effective
permit but all parties agree that the schedule is not appropriate?
No. Once a permit has been issued and Its terms have not been
contested, its terms are legally binding. Violation of those terms
are to be dealt with with the normal enforcement responses.
7. May ECSL’s be used for dfschargers or planned dischargers that
will tie—in to municipal waste collection systems after July 1,
1977?
The ECSL policy was not qualified to include this purpose and
should not be used in such cases. The tie—in question is
being examined In the light of potential legislation and earlier
EPA statements on the subject, and further guidance is planned.
8. Is it necessary to repeat the same public participation require-
ments for an ECSL In a case where: (1) a permit has been issued
but appropriate portions are stayed pending an adjudicatory
hearing; (2) all public participation requirements were met for
the permit; (3) appropriate Issues have been resolved; and (4)
it is not necessary to issue or reissue the permit with the
ECSL?
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Yes. It Is recognized that the “underlying permit” may not be
issued on the same date as the ECSL, but the public participation
requirement of the ECSL procedures memo was not intended as applying
only where the permit and ECSL were issued simultaneously. The public
participation requirements must be followed for every ECSL.
9. Should interim effluent limits be included In the ECSL?
Yes. Interim effluent limits should be included in the permit
insofar as they pertain to the period prior to July 1, 1977, and
interim limits should also be included in the ECSL to assure no mis-
understanding as to the discharger’s responsibility to Continuously
meet those effluent limits prior to the date set to achieve the
final effluent limitations.
10. What additional guidance can be given on what constitutes an
appropriate “critical path or other construction management
analysi SN?
A TM crltical path or other construction management analysis” may
be provided by a number of techniques. (e.g. Critical Path Method or
Program Evaluation and Revue Technique). Then such an analysis would
depict activities (prepare application, order equipment, construct
clarifiers, etc.) and events (application approved, equipment received,
construction complete, etc.) and should determine the-expected time of
completion of the total project and times of completion of the sub—
projects of which it is composed. It is not intended that a particular
technique be used. Considerable unnecessary debate could attend such
specific guidance. A helpful rule of thumb would be to seek and approve
any construction management analysis that would provide to a judge a
satisfactory means of assessing the appropriateness of the schedule and
overviewing progress toward completion.
11. Should a time limit be established on the period allowed a discharger
to submit information necessary to qualify for an ECSL? If so, what is
the deadline?
Each Region, with the knowledge it has on the potential for ECSL’s
and an awareness of the time needed to review the information and
process an ECSL, may set deadlines beyond which only enforcement remedies
will be considered. It should be clear to any discharger having potential
for an ECSL that the time taken to request and submit the necessary
documentation is an important consideration in the assessment of good
faith.
12. Must both EPA and an NPDES State sign an ECSL?
No. The policy suggests that co-signing may be sought by the
permittee and provided, but there is neither a requirement nor a
prohibition in this regard. Each authority must make its own
determination based on its assessments.
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13. Could the criteria to allow an ECSL for a municipality be extended
to include those where funding from current appropriations is
reasonably expected by September 30, 1977, rather than by July 1,
1977?
The rationale for this request Is understandable tn the framework
of the construction grants program. However, the principles underlying
the policy are rooted in the issue of the 1977 compliance date and are
clearly severed by the case referenced In the Eastern District of
Virginia (8 ERC 1609). Such exceptions would only be considered under
the provisions for prior written approval by the Assistant Aoministrator
for Enforcement.
14. Should a State be allowed to submit or prepare documentary evidence
and construction schedule analyses on behalf of a discharger?
Provided the discharger properly assumes responsibility and
attests to the documentation, there is no prohibition against such
assistance. Each Region should guide the respective NPDES States in
this matter, considering such factors as conflicting Interests, avail-
ability of resources to treat all aischargers equally, and potential
for placing the State as a regulatory agency in a cor promiseo or
aefensive posture. In general, itwould appear to be an unwise approach.
15. What should be done in cases where a State refuses to certify a permit
associated with an ECSL?
Since an ECSL is merely the formalization of the exercise by the
Agency of its enforcement discretion, State certification is not
relevant to the issuance of an ECSL. Certification is only a requirement
for the issuance of a permit. As in the normal case, denial of State
certification of a permit means that the permit must be denied and that
enforcement for discharging without a permit should be conunenced.
Since the ECSI. policy calls for the issuance of a permit requiring that
the discharger meet Its statutory obligations by July 1, 1977, a
denial of State certification on the grounds that the permit does not
comply with the statutory deadline would appear on its face to be
erroneous. However, that is a matter to be settled in the State forum.
Appropriate enforcement should be commenced following a denial of a
permit on the basis of a denial of State certification.
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lb. Are approved NPDES States required to use ECSL’s? Should NPDES
States use ECSL’s as a preferred approach to situations fitting
the criteria in the ECSL policy?
The ECSL is an option that has been authorized for use in
limited cases In addition to other enforcement mechanisms available
to NPDES States. NPDES States are encouraged to use the ECSL in
appropriate situations. NPDES States are not required to use
ECSL’s. It is recognized that some States may believe that the
use of ECSL’s may in some cases be limited by State laws or judicial
doctrines. The normal array of enforcement options remain avail-
able to them. The use of an ECS1 . depends on a judgement that it
affords the best opportunity for assuring the iost expeditious
accomplishment of the statutory waste treatment requirements.
The July 3, 1976, ECSL policies place considerable emphasis on
firm and prompt enforcement to assure the integrity of the pro;ram.
Enforcement remedies such as aaministrative oroers and referrals
for judicial action should be used when they would be the most
expeditious manner to assure compliance in the statutory requirements.
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tEhCRAt DI I
TO: Director, Enforcement Division, Region VIII
FRCH: Deputy Assistant Ad in1strator for Water Enforcement (E —335)
SUBJECT: Cox ents on Re 1on V11Is Approach to Writing Effluent Limits
for Confined Animal Fecaing Operations Smafler than l,00U Animal
Units
Ilembers of ny staff have discussed with Region VIII personnel the
approach outlinea in the strategy paper entitleu ‘i4ew Strategy for
Issuing Permits for Feeolots In Region VIII. In addition, we nave
Informally solicited opinions from the Office of General Counsel (OGC)
and frcm other Reilonal Offices on tne approach.
The situation necessitating the new strategy, as we understand
it, was brought aDout by the Flannery Decision which required EPA to
extend the hPLE permit program to previously excluueci categories. The
ar endea regulation defining the extended program for Concentrated Anir al
Feeding Operations (CAFO) was prorulgated on March 18, 1976 (41 FR
11458), and, among other things, required a CAFO confining less than
l,OuU animals, r eet1ng certain conditions, to apply for an ui’ ES permit.
It is the perrit that will be Issued to each CAFO, as requlreo by the
new regulation, that the strategy Is concerned with.
The Region VIII strategy Is, essentially, that for facilities
smaller than 1,ODO animal units and for whicn no guloeline nas been
prolailgated, that BAT Is no dlscharg? of process wastewater except
overflow due to a ID—year, 24—hour precipitation event (or chronic
equivalent). lr. certain cases an overflow from a flow—through waterln;
system may be allowed. Due to time requ1rei ents for permit Issuance anu
facility construction, Region VIII does not feel tnat It is appropriate
to determine BPT requirements at this time, but rather to proceed directly
with coi 1iance schedules re u1ring implementation of BAT technolo ’ on a
reasonaole ti etabie.
-------
We believe there are a ni.mther of policy Imp l ications in Ignoring the
tiPT requ1rem n of the Act. The rationale for not defining BPT for
these sc aller CAFO facilities Is primarily based on time requjrenen
relatina to both permit issuance ano ConStruction of aDatenent facilities
which, In combination, would make it difficult to achieve compliance by
July 1, 1977.
Given the fact that the Effluent Guidelines Division was uneole to
establish an effluent guloeline for a CAFO smaller than l,OUO animal
units, we feel that It is inappropriate for us to establish national
guidance since circumstances aiffer from region to region. Since Region
VIII Is In a geographic area where annual evaporation exceeds annual
rainfall, we feel containment of conta ainated runoff in retention basins
followed by land application Is probably appropriate to reflect BPT
levels of treab ent. Suggestions for correlating the appropriate size of
the retention basin to a specific feeding operation may be sought from
the Soil Conservation Service or a local land grant college. These o
institutions are well suited to utilize infortjation concerning the
operator’s econowic situation, location of the facility with respect to
streams, and rainfall data to best determine a reasonaole abate ent
program.
Where the estaolisheø BPT limitation or requirement cannot be met y
July 1, 1977, an acceptable approach, in our opinion, Is to Issue an
Enforcement Compliance Schedule Letter (ECSL) as outlined in the attached
memorandum. As you know, this approach would reQuire the region to
determine BPT for CAFOs which are not Includea in the current guideline
(4( CFR 412), and to issue an MPDES permit with an abatenent schedule
requiring compliance by July 1, 1977. As has been aiscusseci, one of the
main reasons the ECSL was developed was to provide a firm but fair policy
for those dischargers who will be unable to meet the July 1, 1977 date
because they have not been issueø an PIPDES permit, or because they will
receive the NPDES permit so late that It will be physically Impossible to
complete construction of the necessary facilities by July 1, 1977. If a
permi ttee I nal cates he cannot meet the July 1, 1977 date after having
made a gbod faith effort, then he Is a canoidate for an ECSL. Of course
to obtain an ECSL• the discharger mist submi t: (1) documented evidence
that, despite all reasonable good faith efforts, he cannot achieve BPT by
July 1, 1977; end (2) a critical path or other construction management
analysis of the shortest reasonable schedule by which he can achieve
BPT.
For CAFOs smaller than 1,UUu animal units, tne required evidence
and management analysis would, due to their small size, be easy to
prepare and evaluate. If the permit’s effective compliar.ce date is
be een now and July 1, 1977, the required evicence substantiating that
aespite a reasonable good faith effort the July 1, lfrl? oate cannot e
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net, is practically self —evioent. In fact part of the rationale for your
uirect apuroacn to B AT was the short tine period between peri’it issuance
and 1 July 1, 1977. Aedltionally, the mana;er ent analysis could be as
siriple as a construction scheoule to Install the required retention
basin.
Should you feel that it is appropriate to set units for AT at this
oolnt In tlir.e, we would not discourage you from doing so, provlaed that
L PT linits were also established In tv e perc4t. The pernit i ust require
that sucn EPT l1riit be net oy July 1, 1977. An ECSL, however, can be
Issued along with the per lt to provide for additional tine to achieve
BPT.
Given the concerns expressed in your proposal, and the sinilarity
of those concerns wlV’i problems we face witn oti er categories of sources,
we woula strongly a(jvlse that you utilize the ECSL in lieu of, or In
concert with, your strategy. The ZCSL has been tested In court, has been
issued to several dtschargers, and provides a reasonaole ethoe for
accor ’.odat1ng your concern without aoversely affectlnç’ the statutory
structure.
Jeffrey G. I1ller
ttac ient -
WMcCorL1 e/mwg/l 1/2/76 :PD : EP U336 :472—3665
WLflcCorkl e:rnwg: 11/29/76
WMc ockle: wg: 12/8/76
Rewritten per L.tllller:mbh: 12/1O/76
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FEB3 p)
10
;
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
‘97?
or icz 0 ,
GENERAL COUNSEL.
MEMORANDUM
TO : Deputy Assistant Administrator for
Water Enforcement (EN—335)
FROM : General Counsel (A—130)
SUBJECT: Clarification of 0CC Opinion No. 40.
QUESTION
In OGC Opinion of Law No. 40, Apr. 2, 1976, the General
Counsel stated that the Regional Administrator may, when
issuing an NPDES permit, consider the economic impact on an
individual discharger of the effluent limitations which are
proposed to be imposed in establishing effluent limitations
representing the “best practicable control technology currently
available”, when effluent limitations guidelines applicable to
the source involved have not been promulgated under FWPCA SS301
and 304. The Opinion states that the Regional Administrator must
weigh the “internal” and “external” costs of effluent reduction
against the effluent reduction achieved, and that “the resolution
of that process is, of course, a matter within the sound discre-
tion of the Regional Administrator; it is not a matter of law.”
Id. at 6.
You have asked (1) whether the Director of an approved State
NPDES program has the same discretion as the Regional Administra-
tor in this regard, and (2) whether there are any limits on that
discretion.
ANSWER
The State has the same discretion as the Regional Admin-
istrator would have in issuing permits prior to promulgation of
effluent limitations guidelines. However, both the State and the
Regional Administrator must exercise that discretion in a reasoned
manner, considering all pertinent evidence before them, and in
light of the purpose, provisions, and legislative history of
the Federal Water Pollution Control Act.
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3
The tacit assumption underlying OGC Opinion No. 40 is that
permit conditions may have to be established upon a considera-
tion of the economic situation of an individual discharger if
more complete information is not available to the State or the
Regional Administrator. But the permit issuing authority is ob-
ligated to consider as fully as practicable the information which
the Administrator would consider in establishing national effluent
limitations for the same type of facility, if such information is
reasonably available. And, like any administrative agency, the
State Director must articulate the basis for his decision. As was
stated in Opinion No. 40, at 7:
where information is available
as to levels of treatment reasonable
for the industry as a whole, it might
well be arbitrary for the Regional
Administrator, in disregard of such evi-
dence, to issue a permit requiring some
lesser degree of treatment on the basis
of an individual discharger’s economic
situation.
C. William Frick
cc: All Regional Enforcement Directors
All Regional General Counsels
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7 ’P f .
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
FEB 14 1977
MEMORANDUM
OFFICE OF ENFORCEP.IENT
TO: Regional Enforcement Directors
Regional Permit Branch Chiefs
NPDES State Directors
FROM: Deputy Assistant Administrator for Water Enforcement (EN-335)
SUBJECT: Fecal Coliform Bacteria Limits
The following statement provides current program direction for the
issuance of municipal permits under the National Pollutant Discharge
Elimination System (NPDES). An amendment to Secondary Treatment Informa-
tion Regulation (40 CFR 133) regarding fecal coliform bacteria and pH
requirements was published in the Federal Register on July 26 1976. The
fecal coliform requirements were deleted and the pH provIsions changed.
This guidance is intended to simplify the procedure for assigning effluent
limitations for indicator organisms so that a transition from effluent
based to water quality based requirements will be both efficient and
effective.
POLICY
Disinfection requirements and limitations on the discharge of indica-
tor organisms have been, and must continue to be directed at protection of
public health. Such requirements are, and will continue to be, enforceable
conditions of permits. Modification of permits to delete inappropriate
fecal coliform limits, based on this policy statement, may begin at any time
and should be scheduled in keeping with Regional priorities for modifying
and reissuing municipal permits.
Where fecal coliform limitations or disinfection are required by State
water quality standards, the following guidance Is provided for their
development:
(1) PreferentIally, effluent limitations for Indicator organisms
should be set in accordance with standard water quality pro-
cedures (I.e. predictive modeling techniques) developed for
specific water quality limited segments.
(2) As an alternative to the above methodology, effluent limitations
for indicator organisms should be set at the same numerical value
as the in-stream standard for the same indicator.
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(3) Where water quality standards are not definitive;
a. The geometric mean of the value for effluent samples
collected in a period of 30 consecutive days shall
not exceed 200 per 100 ml; and
b. the geometric mean of the value for effluent samples
collected in a period of seven consecutive days shall
not exceed 400 per iml.
(4) Certain potential environmental problems can result from the
uncontrolled use of chlorine. Effluent limitations on residual
chlorine should be established in accordance with water quality
standards or in the absence of definitive chlorine residual
criteria in water quality s ndards guidance is provided in
Quality Criteria for Water. I
DISCUSSION
The amendment for deletion of the fecal coliform limitations from
40 CFR 133 specified reliance on water quality standards in lieu of a
uniform effluent standard for setting fecal coliform effluent limitations
for POTW’s. Normally, this would imply that a procedure Involving assimi—
lative capacities would be used to establish effluent limitations on a
case—by-case basis.
There may be difficulty with using water quality modeling procedures
for determination of fecal coliform limitations. Modeling procedures
which account for such factors as dilution and die-off (or possibly regrowth)
of indicator organisms to determine effluent limitations have not been fully
developed. In lieu of reliable determinations based on modeling techniques,
effluent limitations for fecal coliforms should be set at the same level
as are required in—stream. For example, if the in-stream standard Is 1000
fecal coliform bacteria per 100 ml, the effluent standard for discharges
into the receiving water body would be set at 1000 bacteria per 100 ml.
In Instances where it has been determined that disinfection is necessary
but a numerical fecal coliform standard does not exist, this policy calls
for use of the bathing water criteria reconmended in Quality Criteria for
Water .
1/ The Agency published on July 26, 1976, Quality Criteria for Water ,
(Publication EPA 440/9-76-023) which is intended to be used as the
basis for State water quality standards. Criteria for fecal coliform
bacteria and chlorine residual are included. These criteria are
available for use by the States in the development of water quality
standards and the related disinfection requirements for publicly
owned treatment works.
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Guidance on municipal wastewater disinfection practices may be found
in the final “Disinfection of Wastewater-Task Force Report.” The report
is available from the General Services Administration (8FY), Centralized
Mailing Lists Services, Building 41, Denver Federal Center, Denver,
Colorado 80225. The title and number of the report are: “Disinfection
of Wastewater-Task Force Report,” MCD-21: No. EPA-430/9-75-0l2.
As an additional note, be aware that the July 26, 1976, amendment to
Secondary Treatment Information also modified pH as follows:
“(c) p11. The effluent values for pH shall be maintained
within the limits of 6.0 to 9.0 unless the publicly
owned treatment works demonstrates that:
(1) Inorganic chemicals are not added to the waste
stream as part of the treatment process; and
(2) Contributions from industrial sources do not cause
the pH of the effluent to be less than 6.0 or
greater than 9.0”
_ ‘I-
eff e/G. Miller
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!
UNITED ST,%I ES ENVIRONMENTAL PROTECTI AGENCY
WASHINGTON. D.C. 2C460
1. i 77
t EMOP ANDUM OFFiCE OF ENFORCEMEi T
TO: James 0. McDonald, Director
Enforcement Division, Region V
FR0 4: Deputy Assistant Administrator for Water Enforcement
(EI —335)
SUBJECT: Additional Questions on Enforcement Compliance
Schedule Letters
This is in response to your memo transmitting “Additional Suggested
Questions on Enforcement Compliance Schedule Letters.” Your memorandum
arrived shortly before the final changes were made in the memorandum of
December 10, 1976, from the Assistant Administrator for Enforcement,
that provided questions and answers on the ECSL policy, and we did nct
attempt to revise that memo. The questions attached to your memo are
restated below together with answers in the same format used in the
December 10 memorandum.
1. “The t:ieory of the ECSL is that it is onl ’ the exercise of the
enforcement discretion, not a modified permit. In the Adjudicatory
Hearing situation, however, knowledge and approval of all those
participating would be needed.
Would it therefore be appropriate to have the Adjudicatory Hear.ing
settlement stipulation address both the modified permit and the
ECSL. and attach both as exhibits?”
In cases where an adjudicatorj hearing settlement contemplates
the issuance of an ECSL, the settlement stipulation still must require
the achievement of the appropriate limitations established under the
FWPCA on or before July 1, 1977. Anticipating the issuance of an ECSL,
it may contain factual rationale for an extended compliance schedule,
and a recitation of the circumstances that warrant a finding of good
faith. It should not contain an express co nrnitment by EPA to issue an
ECSL, as the exercise of enforcement discretion is an issue separate
and distinct from the matters in controversy at the hearing. For that
reason the consent of other parties to the hearing is neither necessary
nor appropriate in issuing the ECSL.
2. “In view of item #12 (Draft Response), what if a State takes over
the program after U.S. EPA has issued an ECSL, and the state had not
itself signed the ECSL; is it bound by the ECSL?”
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since an ECSL is a documentation of the Agency’s exercise of its
prosecutorial discretion, it does not bind a State unless the State is
a signatory. That is, a State is bound by its own action; ano ECSLs
issued by EPA do not mitigate against any State taking action under
section 505. It would be appropriate, however, to provide the State the
opportunity to co—sign any ECSL. Although State agree!nerlt is not a
orerequisite, the ECSL policy encourages coordination and cooperation
with the State in the development of ECSL conditions whether or not the
State h s PDEZ program approval. then SUCh coordination has taken
place, the risk of later conflict in a situation such as described
would be minimized.
3. “tlhat aDout extending compliance schedule dates after
issuance of an ECSL by modifying the ECSL? Would another
Public notice be required?”
The ECSL policy does not contemplate the modification of
an ECSL. Should the compliance dates cor ,taine in the
CSL not be met, it would usually be apPropriate to elect
other enforcement measures as themost appropriate course of
action. In the unusual situation where an ECSL is modified,
the modification should be subject to public notice.
4. “Where a djudicatory Hearing has been settled by a
withdrawal agreen ent contingent upon permit modification
and ECSL, anc , a public notice issued as to tne odifie
permit, can this notice also reference the ECSL or must
there be two separate public notices?”
The public notice used with regard to the modification f
a permit (presumably a matter not related to the extension of
a conrnliance date beyond July 1, 1977) nay be used for the
purpose of providing notice of an ECSL that deals with the
same permittee’s ccmpliance schedule.
5, U th is a permit finally effective for the purpose of an
ECSL? Where some or all of a permit is being held in
abeyance by an adjudicatory hearing request, this is not,
per the June 3 memo, a finally effecti’,e permit. At what
stage aoes it become finally effective:
AU record to RA?
RA ruling?
Administrator EPA ruling?
Circuit Court of Apoeals decision?
U.S. Supreme Court decision?”
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A permit becomes finally effective when the Agency takes its final
administrative action without further administrative appeal, i.e.,
Permit issuance when not followed by a request for an adjudicatory
hearing which is granted, the RA’s decision in an adjudicatory hearing
;hen not followed by a request for appeal-to the Administrator which is
granted, or the A inistrator’s decision on appeal. In some situations,
however, it may be appropriate to issue an ECSL to settle an appeal of
the Acministrator’s decision to the Court of Appeals (see the answer to
Question in the me orar.cum of Decemoar 10, 1976, frc ’. the Assistant
Administrator for Enforcement, on this subject).
6. “Should the ECSL include a reference to the permit reporting
requirements and/or include reporting requirements on the interim
limits? Once the final limits are attained, or the final increment
of the compliance schedule is reached, does the ECSL expire and the
pe iit take over?”
The ans?Ler to both cuestions is “yes”. Any interim limit and
attendant monitoring and reporting requirements should be in the ECSL.
The “Sample Enforcerient Compliance Schedule Letter” provided with the
Ju e 3, 1976, memorandum or. “Procedures for Issuance of Enforcement
Compliance Schedule Letters” includes the following provision: “Unless
previously revoked, the effectiveness of this Enforcement Compliance
Letter shall expire thirty (30) cays after the date specified above for
achieve ert oF the Lit itations of the Discharge.” Early compliance is
an appropriate reason for revoking the ECSL. The permit would then
stand alone as a basis for assessing compliance.
7. “There is no specific staterient anywhere in the several June 3,
1975, meroranda or the October, 1976 Draft Response that there can
be no request for adjudicatory hearing pursuant to an ECSL. But it
Is also not specifically allowed in any of these docu.’ ents. The
June 3 Procedures memo, however, states:
“When the permit issuing authority intends to
use an ECSL in connection with the issuance oF
1PDES permits, the ECSL should be subject to the
same public participation requirements as the
underlying permit.”
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Does this include the right of “any interested person” to request
an adjudicatory hearing within 10 days after issuance of permit and
ECSL?
If not, are the levers availaDle to the public:
1. To complain at the public hearing;
2. To take action via a section 505 Citizen’s Suit?”
Because of the nature of the action taken by a regulatory ag3ncy
in issuing an ECSL, the public participation requirements of the ECSL
policy were not intenGed to extend to requests for an adjudicatory
hearing. If serious matters or controversy arise, it may be more
appropriate to pursue other enforcement i easures in order to establish
appropriate compliance schedules. The ability of the public to know the
nature of action taken by EPA or an PDES State when there is non—compliance
with permit schedules is assured by the quarterly non—ccmpliance
reports. Permittees failing to comply with their permit schedule must
be included in the quarterly non-compliance report; and when an ECSL
has been issued or is contemplated, that should be noted as the action
taken or proposed. A citizen’s ability to act is the same as in the
case of any discretionary enforcement measure. One of the features of
the ECSL policy is that it does not foreclose citizen suits. The
added assurance of public participation in the case of ECSL’s is the
public notice and opportunity for public hearing whereby the views and
ccmplair.ts of all parties may be heard.
8. “Regarding item #7 of the draft response, why shouldn’t an ECSL be
allowed for an industrial tie—in to a municipal plant after July 1,
1977, where a discharger has no effective permit and it is not
physically possible to meet BPT by July 1, 1977, by either construc—
tion of discharger’s own treatment system or through tie-in to the
municipality?”
A discharger that has no effective permit and meets the other
qualifications for the issuance of an ECSL in y be issued an ECSL. An
ECSL for such a discharger may specify that the discharger connect to
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another treatrnen facility by a date—certain. While this is not
a typical tie-in situation, it is one for which an ECSL rray be used.
Situations in which Cl) an industrial discharger has a finally effective
pemit requiring a connection to a P0Th and (2) the industry will be
unable to comply with its permit because of the unavailability bf the
niunicipal treatment, will be dealt with under a separate policy currently
being developed.
/7)
•1’ I • / •.
3eri rey G. •riller
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 23460
- J F; . ; / /
OFFICE CF ENFORCEMEPIT
q
NEMORANDUM
TO : Enforcement Division Director, Region VII
SUBJECT: Water Treatment Plant Limitations
We have reviewed your proposed regional policy on
industrial and municipal water treatment plant permit
limitations and agree with your approach and the
effluent limitations established. The following
remarks will further elaborate on our position and
will provide some additional information.
The Permit Policy Statement 113 (see attached)
issued on September 13, 1974, is explicit on the
prohibition of chemical sludges resulting from supply
water treatment. Silt (preseditnentation sludges) is
approached on the basis of cost—benefit. The cost of
disposing of silt by means other than re—introduction
to the waterway may be greater than the derived benefits,
especially when the waterway normally carries a heavy
silt load. On the other hand care must be exercised
to assure that water quality standards are not
contravened. In short, the re—introduction of silt
from a supply water treatment plant is a matter of
regional determination..
We were advised by Effluent Guidelines Division
(EGD) that the Draft Development Document for Effluent
Limitations Guidelines and Standards of Performance for
the Water Supply Industry”, Ziarch 1975 will be revised
and updated. It is scheduled for completion at the end
of calendar year 1977 and will serve as an advisory
document to assist the NPDES permitting authorities in
writing permits for water treatment facilities.
According to EGD, effluent limitations will not e
promulgated until an economic study is completed at a
later date. Based on this, the NPDES permitting
authorities s ou1d continue issuing permits pursuant
to Section 402(a) (1) or on State water quality
standards.
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Any comments received by Region VII from the other
regions responding to your memorandum would assist the
Effluent Guidelines Division in their preparation of the
advisory docuz ent. We would also be interested in
receiving these comments.
If you have any further questions, please call
Mr. effrey G. Mi ]. r’. /(8/r755/O O) -.
Star%Z’ey W. Legro
Attachment
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UNITED STATES ENVIRONMEP1T L PROTECTION AGENCY
C: February 24, 1977
u JECT; BPT Water Trea eflt Plants
Region VII Policy
FROM: Ronald 0. McCutcheofl
Chief, Technical Management Section
TO: Mr. Carl M. Walter
Chief, Permit & Compliance Branch
It now appears that final effluent guidelines for water treatment plants
(WTP) will not be promulgated. It is imperative the Federal and State
permitting authorities be consistent with final effluent limitations
throughout Region VII so the dischargers will know they are being treated
equally.
Listed below is.a suninary of the final effluent limitations contained in
existing permits:
Parameter and Limitation
State Suspended Solids Settleable Solids Other Limits
Iowa 6.0 - 9.0 20 mg/l avg., 30 mg/l max. not limited dissolved Al,
Fe and tlg-l.0
mg/l avg. 2.0
mg/l max.
Kansas 6.0 — 9.0 30 mg/i avg., 45 mg/i max. not limited infrequently
used
Nebraska 6.0 — 9.0 30 mg/i avg., no max. not limited infrequently
used
Missouri 6.0 - 9.0 not limited 0.1 mi/i infrequently
(primarily for used
plants not
softening water)
0.2 ml/l (used with
softening plants)
Nebraska and Missouri permits for WTPs discharging to the Missouri or
Mississippi Rivers contain no final limitations with the statement that
final limitations will be incorporated in the permit upon promulgation
of EPA final guidelines. This statement in effect gives those facilities
a free ride both now and in the future due to the lack of guidelines now
and in the future.
Therefore, Region VII has adopted the following policy on WTPs based on
a 402(a)(1) best profess onai judg nent.
EPA Fe... ‘3?O £ IRe. 3 76’
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2
Henceforth, all WTP permits will contain the following final limitations
as a minimum:
pH 6.0 - 9.0 Standard Units
Total Suspended Solids 30 mg/i - monthly average
45 mg/i — daily average
Presedimentation sludges (prior to chemical addition) or other wastes,
such as from trash racks, may be returned on a Continuous basis to the
raw water source, untreated. All other wastewaters must meet the above
limitations,
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1’
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 2046G
13 APR 1977
MEMORANDUM OFFICE O ENFC! CEMENT
TO: Leslie Carothers, Director, Enforcement Division,
Region I
SUBJECT: Request for Policy and Legal Guidance on the Possible
Use of NPDES Permits to Promote Better Sludge
Management Practices
This is in response to your memo requesting policy and
legal guidance on the possible use of NPDES permits to promote
better sludge management practices. You specifically asked,
“...(t]o what extent can and should EPA include conditions
in permits requiring the permittee to develop or implement
sound sludge treatment and disposal practices.”
I. Existing Guidance
The General Counsel’s memorandum “Requirements of Best
idlanagement Practices in NPDES Permits,” March 3, 1976, states
that an NPDES permit is the vehicle for the application of
effluent limitations on particular dischargers. Section
402(a) (1) allows the issuance of permits upon the dischargers’
compliance with sections 301, 302, 306, 307, 308, and 403.
While section 308 deals with data collection and reporting,
all of the other sections prescribe effluent limitations. We
have interpreted section 402(a) (2) as allowing the imposition
of “other requirements [ the Administrator] deems appropriate”
only insofar as they relate to the achievement of effluent
limitations, and not as they require the use of unrelated
operation and maintenance procedures.
There are three additional circumstances under which the
Agency has authority to include as a condition in an NPDES
permit, a requirement that a permittee employ particular
operational and management practices. Such practices may be
required (1) if they are essential as a condition of State
certification under section 401(d); (2) if they are elements
of an approved 208 plan; or (3) if they are necessary to the
attainment of best practicable waste treatment technology as
defined in section 201(g) (2) (A).
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The memorandum elaborates on the interaction of sections
208, 4C1, and 201(g) (2) (A) with section 402. Section 208(e)
provides that “No permit under section 402 of this Act shall
be issued for any point source which is in conflict with a
plan approved pursuant to subsection (b) of this section”
(emphasis added). It is impossible to determine at this
tir te a more precise guideline, as each case must be considered
on its own factual basis; however, it is conceivable that a
208 plan requirement relating to sludge disposal could be
included in a 402 permit.
Section 401(d) provides that States may include in their
certification any “appropriate” requirement of State law, and
that requirement shall become a condition in a 402 permit.
Therefore, it is conceivable that a State could require, as a
condition of certification, a particular sludge disposal
?ractice. However, although the Agency position has consis-
tently been that EPA has no discretion to review and reject
State certification requirements, it should be noted that this
position has been questioned in the courts. See Consolidation
Coal Co., Inc . v. EPA , 537F.2d1236 (4th Cir. 1976).
Section 301(b) (2) (B) requires POTWs to comply with
the requirements of section 201(g) (2) (A) by the July 1,
1983, deadline. That section provides that grant applicants
develop plans for the application of best practicable waste
treatment technology (BPWTT). hi1e the description of
BPWTT does not refer sciely to the achievement of effluent
limitations, it does require that the applicant study and
evaluate alternative waste treatmer.t techniques (section
201(g) (2) (A)]. However, as information on the meaning of BPWTT
has been published pursuant to section 304(d) (2), we may not
be able to go beyond the requirement of this manual (copy
attached).
This interpretation of the Act was reaffirmed in the
attached opinion of the General Counsel No. 33, dated
October 21, 1975, (hereinafter referred to as “Blue Plains”).
In responding to the question of whether permit conditions
could be imposed governing the disposal of sludge generated
at Blue Plains, the opinion stated that there is “...no
independent basis in section 402 or elsewhere in the FWPCA...”
which allows the Region to direct certain sludge control
practices (see page 4). The statute permits such a condition
only where there is “...a rational connection between the
condition and the assured attainment of the effluent
limitation.” Note the following language of General Counsel:
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—3—
it is my view that if certain sludge handling
conditions could be shown to influence the attainment
of BOD, suspended solids or other permit limitations,
such provisions are proper conditions in the permit.
For example, if sludge disposal or handling at the
facility adds to or, conversely, decreases pollutant
loadings, conditions on that sludge disposal method
may be incorporated in a permit if necessary to
assure that effluent limitations contained in the
permit are met. (See page 3, Blue Plains Opinion.)
The opinion is consistent with the memorandum on best
management practices in noting that sludge disposal requirements
could be imposed in an NPDES permit because of a requirement
of State certification under section 401, or a requirement of
a section 206 plan. ‘ioreover, the Blue Plains opinion states
that sludge disposal conditions could be imposed in a permit
expiring after July 1, 1977, where those conditions are
necessary to the attainment of the 1983 requirements of “best
practicable waste treatment technology” under section 301(b)
(2) (B) of the Act (See page 5).
The Office of General Counsel concluded in an opinion
dated December 13, 1973, (see Decision of the General Counsel
No. 6, attached) that EPA issued NPDES permits for dischargers
into navigable waters may also be conditioned to control
associated well discharges to prevent ground water pollution.
Presumably, this could be applied to sludge disposal facilities
such as lagoons, sanitary landfills, etc., where pollutants
may seep or leach into the ground waters because of facility
design, operation or maintenance. However, there is no EPA
jurisdiction to regulate the discharge of pollutants into
wells which are not directly associated with an NPDES discharge
to navigable waters. See United States v. GA? Corp. , 389
F.Supp. 1379 (SD Texas 1975). Even EPA’s limited authority to
regulate well injections is now being challenged by the Exxon
Corporation in a case now before the Fifth Circuit Court.
II. Section 405
There is another statutory tool which may be used to
regulate sludge disposal. Section 405 of the FWPCA authorizes
EPA to set up a program for the issuance of permits to regulate
the disposal of municipal sludges.
While no specific regulations have been promulgated under
section 405, 40 CFR 125.1(o) includes sludge disposal permits
under section 405 under the general NPDES regulations.
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—4—
Because the issuance of a sectiofl 405 permit is conditioned
upofl a finding that any pollutant from the sludge “would...
enter [ ing]...riavigable waters,” it would appear to add little
to the alternative of issuing a permit under section 402
(section 405(a), P.L. 92—500).
III. Summary
There are six alternatives which the Region may consider
in the use of the NPDES permit to control the disposal of
sludge. The first two alternatives are approaches not
presented in your memorandum. The last four alternatives
cover the approaches which you discussed:
1) If the disposal site can be identified as a point
source of pollutant discharge to waters of the United States,
that discharge can be controlled in a section 402 permit as
another outfall.
2) Conditions can be imposed on publicly owned treatment
works which are necessary to the attainment of best practicable
waste treatment technology (BPWTT)S See P.L. 92—500, section
301(b) (2) (3). While BPWTT is not, strictly speaking, a
limitation on discharge, it requires that the permittee
demonstrate that it has fully considered the alternatives of
land disposal and reclamation to that of effluent treatment.
See F.L. 92—500, section 301(b) (2) (B), 201(g) (2) (A), 201(b).
Whether sludge disposal can be required, therefore, depends on
the particular factual situation involved, i.e., whether
certain sludge disposal management practices are necessary to
the attair.merit of 3PWTT.
3) The Region can enforce the general condition regarding
sludge disposal in existing permits. This only would apply
where the sludge pollutants are or may be entering waters of
the U.S. To our knowledge, no cases have been brought on
this theory. (Reference your memorandum, approach #1.)
4. As explained in the Blue Plains opinion, sludge
handling or disposal can be directed in the section 402 permit
if it is shown to influence the attainment of BOD, suspended
solids, or other permit limitations. This alternative would
appear to apply only where sludge handling and disposal is
confined to the treatment plant site. (See Decision of the
General Counsel ,33 attached.) Under this approach, the
development of a sludge management plan can be r€ ired
in a permit only if it has a rational connection to the
attainment of effluent limitations. See best management
practices memorandum attached. (Reference your. memorandum,
approaches *2 and #3).
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—5—
5) The NPDES permit must not be in conflict with
the 206 plan [ section 208(e)]. A clarification of those
provisions which might “conflict” with a 208 plan must await a
specific factual basis. However, it is conceivable that a 208
plan requirement relating to sludge disposal could be included
in a 402 permit. Permits must also include “appropriate”
provisions of State law required for State certification under
section 401(d), which could include a State sludge handling
requirement. (Reference your memorandum, approach #4.)
6) Based on proposed regulations published in the
Federal Register for February 2, 1977, sludge management
practices will be considered to the extent feasible in
establishing new national pretreatment standards. However,
no single sludge disposal or utilization method will be
used in developing those standards. Where a POTW requests
a variance or modification of the national pretreatmept
standards, it would first be required to demonstrate environ—
mentally adequate sludge disposal or utilization, as defined
in accordance with standards and guidelines issued under
Subpart C of the Resource Conservation and Recovery Act of
1976 (P.L. 94—580). (Reference your ap9roach #5.)
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DRAFT
n-
DITEBAGENCT
316(a) TEC 4ICAL Gui.uANCZ MANUAL
GUIDE FOR TH NAL .i CTS SECTIONS
OF NUC.EAR !ACT.LITIZS
4VIRO ZNTAL I 1PACT SAID ENTS
U.S. Enviro enta1 Protection A e cy
Office of Water Enforcement
Permits Division
Industrial Permits ra ch
Uashi gton, D.C.
May 1, 1.977
(Copies of this guidance may be requested)
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DRAFT
GUIDANCE
POE EVALUATING TJiE
ADVERSE D1PAC OF COOLING WATER
INTAKE STRUCTURES ON THE AQUATIC. ENVIRONMENT:
SECTION 316(b) P.L. 92—500
U.S. Environmental Protection Agency
Office of Water Enforcement
Permits Division
Industrial Permits Branch
Washington, D.C.
May 1, 1977
(Copies of this guidance may be requested)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MAY 2 77
MEMORANDUM
TO: General Counsel (A—130)
FP.(}I: Deputy Assistant Acministrator for Water Enforcement (EN—335)
SUBJECT: Use of In -Streag Mechanical Aerators to Meet Water Qua11 ’
Standards
The Office of Water Enforcement has reviewed your memorandum
regardina the use of in—stream aerators to meet water qual1 y standards.
You suggested two a) ternati yes that may be considered. They were 1)
categorically forbid the use of such devices; or 2) vIew aerators as
analogous to low flow augmentation for maintaining water quality.
By addressing the low flow analogy, it may be shown that the
alternatly, of forbidding the use of in—stream aerators Is the proper
action. Technically low flow augmentation is not analogous to In—
stream aeration. Although, the end result (i.e., maintenance of the
minimum dissolved oxygen level specified in the water quality standards)
may be vie sane, the pnysical conditions of the stream are different.
Low flow augmentation creates a constant regulated flow, and the point
within the stream where minimum water quality will occur remains
static. In-stream aeration, to be efficient, must be applied at a
point where the difference between the saturation concentration for
dissolved oxygen and the actual concentration In the stream approaches
a maximum. Unregulated flows In the stream will cause this point to
move upstream or downstream, since the biochemical oxygen G and Is
time—dependent and the location of the demand will vary according to
the velocity of the stream. In a given stream the natural reaer.tlon
also varies with flow, as the turbulence Is an important factor.
Therefore, the point of greatest difference In dissolved oxygen
Concentration as described above, may not only be remote from the point
of discharge but also vary in distance from the point of discharge
relative to the actual flow and velocity conditions In the stream. It
Is conceivable that an aerator would have to be Operated and maintained
In another state or jurisaiction to be cost-effective.
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ENVIRONMENTAL PROTECTION AGENCY
2
A combination of flow regulation and in—stream aeration may result
in a fixea point for control, but this point could also be outside the
control of the discharger or local government. One situation where
in—stream aeration could be effective and possibly regulated through
the permi t mechani sin woul d occur when the dl scharge was to a reservol r
or an extre ly sluggish stream. This would create a condition
analogous to an aeration basin in a waste treatment facility where
the BUD Is stabilized under controlled conditions prior to being
discharged. The problem with this approach is that there Is no
enforcement mechanism to protect the water quality. The other alter-
native would be to issue a permit, to the owner/operator of the
aerator, containing in—stream limitations (I.e., that the water quality.
downstream of the aerator may not exceed a maximam SOD and a ml nii *im
dissolved oxygen).
The use of In—stream aerators, to maintain water quality standards,
following the application of BAT Is not reco nded for the following
reasons:
1) The SOD—dissolved oxygen relationship In the receiving waters
Is a dynamic process that is difficult to predict because of the
many variables that uxist be considered. This Is not the case when
low—fl ow augmentati on i s used to reduce the concentrati on of a
non—ciegradable substance (e.g. a metal) In the stream since the
resultant concentrati on after dl scharge Is inversely proportional
to the stream tl ow.
2) MonItoring of the effluent following BAT would not assure that
water quality standards were being maintained.
3) The In—stream aerators may be located where the discharger
would not have control over them or operation and maintenance
could suffer because of remoteness.
4) It Is highly speculative whether the permit could be
conditioned to make enforcement a clear-cut action.
In -stream aerators should not be recognized as being analogous to
low—fl ow augmentation. Therefore, the Office of Enforcement recomends
that the use of these aerators asa means .o achieving water quality
standards following BAT be denied. /
\ 44
Jeffrey G 1 ’ Miller
JAGrafton:blh:PO:EN—336 x50750 Rm 3109 WSM 4/5/77
‘I1 1-27
CONCLIRRENCES
SU NAN .1 J — —
I I I
ZPA O u 1220..t at tI
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MAY 41971
IE13RAP DUM
)lrector, Enforcement Division, Region IX
FRC l: Deputy Assistant Administrator for Water Enforcement (EH.335)
SU3JECT: i ?DES Permits and Requirements of State Law
Region IX has issued en PDES permit to McClellan Air Force
for discharge Into an Intermittent stream, while the State
ha expressed an Intent to amend tne California basin plan so as to
priu lbIt stream discharge and require dlscnarge Into a regional
se; er systei . The following Is In response to your memoran m of
Feoruary 11, 1977, regardIng the 1 lementation of that basin plan
prohi bi ti on through tne NPDES permit. The memoranoum focuses on
two primary inquiries. First, whether the anticipated dlscnarge
pr’,nlo ltlon would be binding on the 4PDES permit as a requirement of
State law; an secono, whether the existing HPDES permit for the base
. iust be modified to comply with the basin plan prohibition.
1. HPDES Permit Requlre”oents
From a rev1 of California law and reçuletlons, It would
appear that a discharge prohibition applicable to McClellan Air Force
iase through its adoption Into the State basin plan would be a binding
NPUES permit requirement for that facility under section 301 (b)(fl(C)
0? the FWPCA.
Discussion
Generally speaking (as tne attached OGC memoranoum of
A uSt 24, 1976, IndIcates), there are no legal lnpllcations of Phase I
!esln plans on MPDES per,nits, although great weight should be given to
alan reconmenaatlons and/or limitations. However, by virtue of Section
301(b)(1)(C) of the FPCA, more stringent lif Itat1ons In the form of
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2
water quality stanaards, treat ient standards, and schedules of
cocpflance must be included in an t PDES permit, provided that they are
established pursuant to State law or regulations. Accordingly, since
the basin plan prohibition would be a more stringent treav ent standard,
the determination of whether It falls within the scope of 301(b)(fl(c)
requires an examination of pertinent State laws and regulations.
The expected California basin plan prohiDition of discharge by
McClellan Air Force Base Into an Intermittent stream will not be
expressly incorporateø into the body of State law and regulations.
tleverthejess, under the terms of State law and regulations, the
authority to prohibit specific discharges through basin plans is
acknowledged and given a binaing legal effect by reference.
Linoer the Porter—Cologne Act (Division 7 of the California Water
Pollution Control Laws), regional water quality control plans may
‘specify certain Conditions or areas where the discharge of waste, or
certain types of waste, will not be permitted’ (section 13243). Notice
ana hearing are required prior to the adoption of such a prohibition
(section 13244). In acd ltlon, waste discharge requirements in State
permits must comply with prohibitions contained in water quality
control plans (section 13263; sectIon 2235.5 of the State regulations).
Any discharge of wastes in violation of either discharge prohibitions
or di scharge requl rements prescribed by the regional water quality
control board are suDject to enforcement actions by the State boara
(section 13301; sectloh 2240 of the State regulations).
Thus, under both State law and regulation, basin plan discharge
prohibitions are expressly acknowledged; must be incorporated Into
waste discharge permits; and are directly enforceaole even absent a
permit. Given these circumstances, the prohibition of discharge by the
HcClellan Air force Base, If adopted in a basin plan, would be required
In an NPDES permit as ‘more stringent limitations.., established
pursuant to any State law or regulations.’
The foregoing Interpretation is also Consistent with the terms of
Executive Order 11752, which requires federal facilities to comply with
substantive State water pollution control standards.
2. Permit Modification and Reissuance
Even considering that a discharge prohibition for the
McClellan Air Force Base would be valid as an NPDES permit requirement
under 301(b)(])(c), modification of the existing permit for the facility
woul d not be mandatory.
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3
Discussion
Consistent with the attached mei oranda of AprIl 2, 1976 and
August 24, 1976, existing NPDES per5lts generally should not be
moolfied to conform to new State basin plan/water qua11 y management
plan requl rements, even where these requl rements are established
pursuant to State law. Of course. in extraordinary circumstances,
modification of a permit under existing policies and procedures may be
found appropriate.
Jeffrey G. Miller
AttacPm entS
FLEodI :st:PD:EN—336 x50750 Rm 3109 3/21/77
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• 1IOS74,
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. S O 4 5O
1 1 i MI i I I
‘1
c
ME4ORANDUM
TO: Regional Administrators
Regional Enforcement Division Directors
Approved NPCES State Directors
SUBJECT: Use of the Enforcement Coit pliance Schedule Letter
Past July 1, 1977
July 1, 1977, will mark the statutory deadline under the
Federal Water Pollution Control Act (FWPCA) for municipal and
non—municipal (i.e., industrial) dischargers to achieve estab-
lished technology based effluent limitations and any more
stringent requirements necessary co meet water quality stand-
ards. Faced with the fact that sor e muncipal and industrial
dischargers would be unable to meet their respective treatment
deadlines by the prescribed date despite all good faith
efforts, the Office of Enforcement, on June 3, 1976, issued
the Enforcement Compliance Schedule Letter (ECSL) policy as a
means of formalizing enforcement discretic in these limited
circumstances. Eowever, in establishing standards and procedures
for implementing the ECSL policy, tie June 3, 1976 memorandum
did not specifically address the use of the ECSL for permits
issued July 1, 1977, and thereafter. This memorandut’ is intended
to eliminate any confusion in that regard, a matter of particular
importance as the statutory date draws progressively nearer.
.In brief, the use of the ECSL as an exercise of
enforcement discretion is as proper after July 1, 1977, as it
is prior to that time. The passage of the statutory date in
no way obviates the need for such an enforcement policy to
accommodate those dischargers who proceed in good faith, but
who are nevertheless unable to achieve the required treatment
at the prescribed time. This need is particularly acute for
dischargers who receive their first permit after July 1, 1977,
or for whom adjudicatory hearings are resolved after July 1,
1977, and who may not be reasonably able to meet applicable
secondary treatment or BPT standards immediately upon permit
issuance. For such dischargers, a permit should be issued
with an immediately effective compliance date for meeting
those standards, but with a companion ECSL establishing the
shortest reasonable compliance schedule for their achievement.
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2
It should be noted, however, that all of the standards,
procedures, and safeguards contained in the June 3, 1976,
ECSL policy are applicable to ECSLs issued with permits
after July 1, 1977. In particular, firm and prompt enforcement
of prescribed deadlines should be vigorously pursued where
ECSLs are inappro;riate, so as to avoid unfair economic
advantages to recalcitrant dischargers.
Stanley Legrf
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• :
UN!TED STATES ENVIRONMENTAL PROTECTION AGENCY
WAS 4INGTON. 0 C 23460
JUN 1 i 77
1 ME;•IORAI1DUM
TO: Enforcement Directors, Regions I-X
F 0t4: Oeputy Assistant Administrator for Water Enforce ent (Et1—335)
SUBJECT: Implementation of Promulgated Section 307(a) Toxic Standards
The Agency promulgated effluent standards for the discharge
of Aldrin/Dieldrin, Benzidine, DDT (DOD, DDE), Encrin, ana Toxaphene on
January 1 , 1977, and promulgated effluent standards for the discharge
of PoIycnlorinated Biphenyls (PC3s) on February 2, 1977. Copies of
these standards are attached. The standards apply only to direct
di schargers of these chemi cal s into navi gable waters (exi sting and
new sources). The standards for Aldrin/Dieldrin, DOT (ODD, DOE),
Endr n and Toxaphene apply to formulators and manufacturers of these
pesticides; the benziøine standards apply to benzidine manufacturers
and benziciine—based dye applicators; ana the PCB prohibitions apply to
manufacturers of PCBs, manufacturers of electrical capacitors, and
manufacturers of electrical transformers. Compliance with these
standards is required one year from the date of their publication in
the Federal Register .
Please note that 40 CFR 129.5(a) requires that each owner or
cperator subject to these stancards notify the Regional Administrator
(or State Director) of such discharge. Upon receipt of an application
for a permit modification, the permitting authority is then required
to proceed with the applicable provisions of either 40 CFR Part 124
or Part 125, whichever is applicable. In accordance with 40 CFR
124.45(g) or 125.22(a)(6), mar y permits contain the general condition
that when a toxic pollutant effluent standard more stringent than
the existing limitation in the permit is established, the permit shall
be modified or revised accordingly, and the permittee shall be so
notified. If no application for permit modification is made, the
standards are still independently enforceable under section 307(d)
of the Federal Water Pollution Control Act. If a permit modification
is sought, the permittee is entitled to notice and an opportunity
for a public hearing and may request an adjudicatory hearing on
appropriate limitea issues of fact but not on the validity of the
standards themselves. Issues relative to credit adjustment of the
stanoara (40 CF 129.6) and requirements for more stringent effluent
limitations (40 CER 12 .7) may also be raisec at that time.
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2
Please identify the facilities subject to these standards and
advise them of the standards, the compliance dates and the opportunity
for them to make application for issuance, reissuance or modification
of thei r UPOES pen1 i t. States havi ng NPOES autnori ty shoul d do the
same; therefore, it is important that you forward this memorandum
to all approved t PDES States. The application shall include such
information and follow such procedures as the Regional Aoministrator
(or the State Director, if appropriate) may require. This should
include, as a minimum, (1) identification of the discharger such as
name, location of facility, discharge points, receiving waters, and the
industrial process or operation discharging the toxic pollutant; (2)
existing NPDES permit number and issue dates; (3) toxic pollutant
concentrations and toxic pollutant mass discharge rate and (4) schedule
by which compliance shall be achieved.
To assist you (and the NPDES States) in iaentifying the facilities
to be notified, I have attached material provided by the Criteria
Branch, Office of Water Planning and Standards, Office of Water and
Hazaraous Materials.
When developing the permit conditions you should note the
monitoring requirer’.ents of 40 CFR Part 124.61(b)(3), Part 125.27(b)(3)
and the new Part 129.5( )(1) and Part 129.6(c). These paragraphs
require the issuing authority to give written notice of monitoring,
sampling, recording and reporting conditions. In addition to these
requirements, compliance reports are required within sixty days
following the close of each calendar year.
(
/. 1 1 1 -
Jeffrey G. Miller
Attachments
cc: J. Brian Molloy
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i O
., !p
UNITED STATES ENVIRONMENTAL PROTECTION A -!NCY
WASiIINGTON. D.C 2O4 O
r - /I
UJIJN 22 1977
MEMORANDUM
TO: Regional Administrators
Regional Enforcement Division Directors
NPDES State Directors
SUBJECT: Enforcement Policy and the Use of Enforcement
Compliance Schedule Letters (ECSLs) for Publicly
Owned Treatment Works (POTWs)
The ECSL policy announced by the Environmental Protection
Agency (EPA) on June 3, 1976, is applicable only to those
municipal dischargers: 1) that despite all reasonable good
faith efforts do not presently have finally effective
permits (or have expiring permits); 2) that cannot achieve
secondary treatment by July 1, 1977; and 3) that are currently
funded for a Step 1, 2, and/or 3 construction grant directed
toward achieving secondary treatment or occ .ipy a position on
a priority list such that it can reasonably be expected to
be so funded prior to July 1, 1977, from section 207 funds.
Under the terms of the policy, these PO s should be issued
permits requiring secondary or more stringent treatment by
July 1, 1977, but may be issued a companion ECSL containing
the shortest reasonable schedule of actions to attain these
requirements by a date certain.
However, the current ECSL policy does not address the
problems of those POTWs that are unfunded by Federal grants,
or while partially funded have no certainty of receiving
sufficient funding to set a date certain for completion.
This memorandum is intended to provide enforcement guidance
for those POTWs in order to ensure that enforcement activities
continue to reflect treatment and funding realities consistent
with the Administrator’s recent policy on Municipal Enforcement.
Thus the issuance of an ECSL is authorized where sufficient
federal funds are not available within the State after
funding other projects with a higher environmental priority.
In issuing ECSLs to this class of POTWs, all of the
procedures and standards established by the June 3, 1976,
policy are applicable, except that after July 1, 1977, the
permit will require final effluent limits to be iw. ediately
effective upon issuance. In particular, I would like to
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2
stress the importance of requiring interim effluent limitations
in the ECSL based upon the pollution control that can be
obtained through good operation and maintenance (O&M). Such
new effluent limitations should be calculated on the basis
of existing knowledge of municipal operating procedures and
the history of the particular facility. In addition to
good O&M practices, the interim limits may also reflect the
use of other methods that are not capital intensive (e.g.,
chemical addition) where the Regional Administrator or the
NPDES State Director determines that it would be appropriate
and cost—effective.
The primary distinction between those POTWs originally
covered by the June 3, 1976, policy and POTWs uncertain of
funding will be in the compliance schedule format. While
the former were best addressed by a compliance schedule
containing dates certain (a “fixed date” schedule), a com-
pliance schedule utilizing or partially utilizing contingent
dates (a “ratchet” or “trigger—date/elapsed time” schedule) may
be more appropriate for the latter class of PO?iJs. More
specifically, the compliance schedule containing contingent
dates is one which contains an initial action date or series
of dates insofar as they are known at the time the schedule
is developed. Other dates are contingent. Instead, the
balance of the schedule contains specified periods of time
for the perinittee to complete certain actions which are
started or triggered by a specified event or change in the
permittee’s circumstances. Thus, while the permit may
require that statutory effluent limitations be effective
immediately, there may be no date certain in the ECSL
for éortstruction to be completed and operation capability to
be attained. No ECSL, of course, should be issued with a
term extending beyond the life of the underlying permit.
The use of ECSLs under these cirumstances should
provide an effective mechanism for ensuring that permits can
be issued and reissued embodying effluent limitations which
require O&M and other non—capital intensive treatment
requirements in order to achieve maximum water quality
improvement in those instances where federal construction
funding is not available.
Stanley W. Legr
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____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
% / WASHINGTON. D.C. 20460
JUL 121977
OFFICE OF ENFORCEMEp
n
MEMORANDUM
TO: Director, Enforcement Division, Regions I - IX
FROM: Director, Permits Division (EN-336)
SUBJECT: NPDES Permits in Wetlands Areas
Attached for your information is a copy of an answer provided to
Region X on the question of whether the creation of a sanitary landfill
in a wetlands area would be subject to a section 402 or section 404
permit.
Mjiit s#
Attachment
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a
-
___ UNITED STATES ENVIRONMENTAL PROTECTION A NCY
VAS’ -I N TON. C C 2 46
JUL 1 1 1977
-IEt1CRANDUt4
TO: Enforcement Division Director, Region X
F O ’i: Ueputy Assistant Administrator for Water Enforcement (EU—335)
SUBJECT: ;:PDES Permits in Wetlands Areas
This memorandum is in response to your request for guidance
concerning whether the creation of a sanitary landfifl in a wetlands
area woulo be subject to a section 402 or a section 404 permit.
As you have indicated, the 402/404 relationship is aescriDed
Driefly in a 4arch 7, 1977, letter from Drake Wilson, Brigadier General
with the Army Corps of Engineers, ana in a February 9, 1977, letter
from William Frick, General Counsel, EPA. To surnr.arize those state—
p ents, the disposal of solia waste such as garbage into wetlanas or
other waters of the United States is an unlawful discharge of pollutants
unless permitted under section 402 of the Federal Water Pollution
Control Act Dy either EPA or an IIPDES State. However, if the actual
discharge of waste material has the primary purpose of altering the
elevation of land beneath water or of impounding waters, that activity
may constitute a discharge of fill naterial and be subject to section
404. Where a permit for the aischarge of waste materials such as
garbage is sought, there is a presumption that section 402 will be
applicable. Thus, a sanitary lanafill would probably require a section
402 permit for the discharge of garbage and a section 404 permit for the
preparation of the disposa’ site and the construction of dikes for
containing the garbage.
Where a permit application for a sanitary landfill 15 submitted to
EPA, that permit will most likely be denied in view of EPA’s policy on
the protection of wetlanas (3b F.R. 10834, May 2, 1973), section 04
guidelines (40 C.F.R. 230), and concern for any contamination of surround-
ing water by leachate. Where an application for a permit is suDmittea
to an IIPDES State, the result will be the same; otherwise, an EPA veto
under section 402(ci)(2) would be appropriate.
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2
Ongoing landfill operations in wetlanas areas which do not nave an
IãPIJES permit are in violation of the Federal Water Pollution Control Act,
as Ion as they remain under the jurisaiction of that Act as discharges
into “waters of the United States.” As such lanafills are discovered
(perhaps as the result of surveys under the Resource Conserv tion and
Recovery Act or notification by private parties), appropriate enforcei ent
actions should be taken by EPA or the iJPDES States. In most, if not all
instances, that enforcement action will involve the. errninatjon of
disposal activities due to the severe environmental i act involved and
the possibility of alternate disposal sites.
, I
‘ •# ‘i .
Jeffrey G IUller
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P 4 ____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. D.C. 20460
4 L
JUL20 1977
OFFICE OF ENFORCEMENT
MEMORANDUM
TO: Enforcement Division Directors, Regions I — X
FROM: Deputy Assistant Administrator for Water Enforcement (EN-335)
SUBJECT: Implementation of Section 403 of the FWPCA
The attached letter and memorandum from the
are being forwarded to you for your information.
priate opportunity to reiterate EPA’s position on
Dumping Criteria.”
Before January 11, 1977, ocean dumping and ocean discharge were both
governed by 40 CFR 227. At that time, the regulation was revised; and
the final Revision of Regulation and Criteria is solely applicable to ocean
dumping. References to ocean discharge were deleted.
Although efforts at proposed ocean discharge rules are currently
underway, a con nitment to the marine environment calls for appropriate
control over ocean discharges in the interim. Section 403 of the FWPCA
should, therefore, be considered in the issuance and re-issuance of all
NPDES permits. The criteria set forth in Section 403(c) maybe applied
to all discharges on a case—by-case basis pursuant to Section 402(a)(1)
of the Act. Where appropriate, the criteria for ocean dumping should
provideguidance to assist you in these case-bv— determinations.
National Wildlife Federation
This is also an appro-
Section 403, “Ocean
ttacbme s
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itD T4%
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
L i 0 1t
AUG 1 8 1977 OFFICE OF ENFORCEMENT
MEMORANDUM
TO: Regional Administrators
Directors of Approved NPDES States
FROM: Deputy Assistant Administrator
for Water Enforcement (EN—335)
SUBJECT: Policy Regarding Procedures for Fundamentally
Different Factors BPT Variances
Introduction
In light of the experience gained from reviewing
“fundamentally different factors” (FDF) variance requests
during the past year, the Office of Enforcement has developed
interim procedures that will be used by our office pending
possible promulgation of regulations. This memorandum is to
inform you of such procedures and other relevant matters.
Before doing so, I think it is important to discuss our
policy regarding approval of variances. We regard the
variance as an exceptional device to be approved only when
clearly demonstrated by the circumstances. Our adherence to
this policy is evidenced by the fact that our office has
recommended approval of only two requests out of a total of
11 determinations.
We will be forwarding to you, on a periodic basis, a
variance status report which will inform you of the status
of all variance requests, the issues involved, and a general
overview of the variance program. In addition to the status
report we are contemplating the development of regulations
concerning the variance program. Accordingly, we would
appreciate input from you prior to development of the
regulations regarding issues addressed in this memorandum or
any other issues which have come to your attention. Indeed,
we would welcome your advice on whether you feel that such
variance regulations are advisable.
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2
It is important to note that the policy established by
this memorandum only applies where the fundamentally different
factors variance request asks for or results in the establish-
ment of less stringent effluent limitations. We do not
address the situation where more stringent limits are
requested, because all requests received have involved less
stringent limits and because we anticipate few if any
requests asking for or leading to more stringent limits. If
such requests should occur, the Regions and the States
should seek guidance from us on a case—by—case basis.
Procedures for Regions and States
Only the Administrator has the authority to approve
the request for a discharger to receive a FDF variance.
This is apparent from the language of the variance clause:
If . . . fundamentally different factors
are found to exist, the Regional Administrator
or the State shall establish for the discharger
effluent limitations in the NPDES permit either
more or less stringent than the limitations
established herein, to the extent dictated by
such fundamentally different factors. Such
limitations must be approved by the Administrator
of the Environmental Protection Agency . The
Administrator may approve or disapprove such
limitations, specify other limitations .
(emphasis added)
Although concurrence of the Administrator is required in
situations where the Regions or the States approve variance
requests, it is not required where the request is denied.
In cases where the Regions and the States deny all or part
of the variance requests, it is important, as discussed
below, that they adequately review and respond to the issues
raised.
The procedures that should be followed in seeking the
approval of the Administrator or appealing decisions of the
Regional Administrators to the Administrator depend on
whether the applicant is within the jurisdiction of an
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3
approved NPDES State and whether the request has been denied
or approved at the Regional or State level.1/
If the State:
(1.) Denies the variance request, no further EPA review
is required. Appeals of State determinations must be made
within the administrative framework of the State or to the
appropriate State court.
(2) Approves the variance request, it shall be forwarded
to the Regional Administrator for review; it will not be
subject to review by the Administrator unless the RA concurs
with the findings of the State.
(3) Determination is a mixed decision, only those
aspects of the request which are approved should be forwarded
to the RA.
If the Regional Administrator:
(1) Denies the variance request, which may come directly
from the applicant or the State, no further review by our
office or the Administrator will occur unless the applicant
appeals the decision to the Administrator. The RA shall
advise the applicant that a petition for the Administrator’s
review must be made to the Administrator within 10 days of
the determination .2/
(2) Approves the variance request, which may come
directly from the applicant or the State, it shall be
forwarded to the Administrator for review. To facilitate
/ There are three decision options available to the Regions
and the States following review of the variance request.
They are:
(1) Deny the request in its entirety.
(2) Approve the request in its entirety.
(3) Deny certain aspects of the request and approve
others. (Mixed decision)
2/ This time period is consistent with the time periods
— established in 40 CFR Section 125.36(b) for requesting an
adjudicatory hearing following issuance of a permit and
40 CFR Section 125.35(n) for appeal of initial decisions
of the BA.
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4
the expeditious handling of these requests, we urge the
Regions to send a copy of the request to the Director,
Permits Division.
(3) Determination is a mixed decision, only those
aspects of the request which are approved shall be forwarded
to the Administrator. If, however, an appeal is made
relating to those portions of the request that were denied,
the appeal should be consolidated with the review of the
approved aspects of the request.
In all cases where the variance request sets forth
disputed complex material issues of fact, the RA may decide
to conduct a hearing prior to resolution of these issues.
Headquarters Procedures
Because both complex legal and technical issues are
involved in a variance request, we have determined that a
variance pane]. consisting of persons with expertise in these
areas will review requests received from the Regions to
assure adequate consideration of all issues. Ordinarily
the panel will be comprised of the Chief of the Industrial
Permits Branch, an attorney from General Counsel, a technical
member of the Industrial Permits Branch with responsibility
for the industry concerned and personnel from other EPA
program offices (such as Effluent Guidelines Division) as
necessary. Furthermore, if the Regions so desire, members
of their staff intimately involved in the variance request
will be asked to attend the variance panel meetings.
Ordinarily the following procedures will apply:
(1) The Deputy Assistant Administrator for Water
Enforcement issues a Recommended Decision to the Administrator
by the Office of Enforcement to deny or approve the request
based on the panel’s findings. However, if a variance
request concerns solely legal issues, the General Counsel
may make the Recommended Decision of the Administrator.
(2) The Recommended Decision is transmitted to the
Regional Administrator, the State Director (if an approved
NPDES State is involved) and the applicant.
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5
(3) A draft public notice of the Recommended Decision
is transmitted to the Permits Branch Chief of the Region for
publication within the geographical locale of the facility
involved.!
(4) All comments received by the Office of Enforcement
(or General Counsel) within 30 days of the date of the
notice will be considered prior to issuance of a Final
Decision by the Administrator. Interested persons can
receive copies of the Recommended Decision from the Permits
Division, EPA Headquarters.
(5) The Variance Panel reviews the comments and drafts
a Final Decision for the Administratorts signature.
(6) In matters involving issues of great importance and
- broad potential impact, Recommended Decisions may be noticed
in the Federal Register.4 /
We encourage the Regions and approved NPDES States
(to the extent it is compatible with their administrative
procedures) to utilize similar variance panels. We believe
that the panel approach provides the type of review required
in these complex matters.
The Record
The Office of Enforcement is concerned that application
of the variance provision will be subject to judicial
scrutiny, particularly with respect to the record developed
during the decision—making process. Accordingly, it is
3/ Procedural fairness requires that interested persons and
the industry involved have the opportunity to participate
in EPA decision—making process prior to a final determination.
4/ For example, see Louisiana Pacific Corp. and Crown
Simpson Pulp Co., Recommended Decision of the Adminis-
trator 42 Fed. Reg. 28167, June 2, 1977. At issue in
the variance request was the relevance of the nature and
quality of the receiving water.
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6
important that the record developed during the process
substantiate final EPA or State determinations regarding the
issues of fundamental difference and the establishment of
different effluent limitations. The primary responsibility
in this regard will fall on the Regions and the States.
In denying a variance request or recommending the
establishment of different effluent limitations, the record
compiled by the Region (and/or the State) should make plain
the course of inquiry, the reasons for the determination,
the facts relied upon and, most importantly, it should
substantiate the determination.
The variance clause states in part that:
If such fundamentally different factors are
found to exist, the Regional Administrator or
the State . . . shall establish . . . effluent
limitations in the NPDES permit either more or
less stringent than the limitations established
herein, to the extent dictated by such
factors . (emphasis added)
Therefore in establishing less stringent limitations,
the reasons for and the facts relied on must be clearly
stated in order that the Administrator may approve or
disapprove such limitations. In essence, limits established
by the Region or the NPDES State must be justified by the
extent of the fundamental difference. Moreover the basis
for the recommended limits should be clearly delineated.
If the record as forwarded to us is incomplete, we will
either return the variance request to the Region or the NPDES
State for supplementation and further consideration or, in
rare cases, we may supplement the record ourselves. Such
actions will result in lengthy delays. For example, in
cases where our office supplements the record, we must
afford the permittee the opportunity to rebut such material
and in certain cases this may require a hearing. Further-
more, a poorly developed record in the case of Regional or
NPDES State denials could lead to adverse court holdings.
Therefore I cannot overemphasize the importance of the
record from both the standpoint of legal sufficiency and
State and Agency resources.
Scope of the Variance
It is an inherent aspect of the variance clause that it
applies only to individual dischargers which have been
determined to fall within a particular industrial category.
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The language of the variance clause clearly contemplates the
adjustment of effluent limitations only for plants that fall
within a given industry. Logically, an industry not subject
to the regulations is not subject to the regulations’
exemptions. Therefore, it is not the proper device for
raising the issue of whether a facility has been correctly
categorized. Such issues should be raised during permit
issuance or through an adjudicatory hearing.
Also, several of the Regions and NPDES States have
recommended the establishment of different effluent limita-
tions under the variance clause for permit limits based on
402(a) (1) determinationS. Clearly the variance provision
applies only to effluent limitations established under an
applicable guideline. Limitations based on 402(a) (1) are
BPCTCA for the plant and are not subject to the variance
provisions of the guidelines.
Timely Variance Request
An issue worthy of discussion because of its immediate
importance is when should variance requests be considered by
EPA Headquarters, the Regions and the NPDES States.
In general, our position is that requests must be
submitted during the permit issuing or reissuing process and
not be considered at other times. Under certain limited
circumstances, however, variance requests can be considered
during the life of a permit, such as when the alleged
fundamentally different factors arose or were reasonably
capable of discovery only after the time when the request
would generally be considered timely.
I urge the Regions and NPDES States to notify each
industrial applicant by letter with the permit application
that variance requests must be submitted prior to issuance
or reissuance of the final permit and that requests received
after the permit is final are untimely except under the
circumstances discussed above.
If you have any questions regarding this memorandum,
please contact Toni ToniasellO, Attorney-r-InduStrial Permits
Branch (8/472—3665). - )
‘— __
effIey’G Miller
cc: Regional Enforcement Division Directors
Regional Permit Branch Chiefs
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._ Io
f’Th
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WAS IINGTON. D.C. 20460
OCT 13 1977
OFFICE OF !t.FORCEMENT
n- - , r
MEMORANDUM
TO: Regional Administrators
Approved NPDES State Directors
FROM: Deputy Assistant Administrator for Water Enforcement
(EN—335)
SUBJECT: Policy Regarding the Inclusion in Permits of
Effluent Parameters More Stringent Than or Additional
to Those Based on Secondary Treatment or Effluent
Guidelines
The secondary treatment standard (municipal dischargers)
and effluent guidelines (non—municipal dischargers) provide
a minimum base from which to determine permit effluent limita-
tions. The Office of Enforcement has received several requests
for guidance regarding the inclusion in permits of effluent
‘parameters more stringent than or in addition to these minimum
requirements. In order to address these requests in a compre-
hensive manner, this policy describes the full range of situa-
tions where more stringent or additional parameters may be
applied to municipal and non-municipal dischargers.
I. Municipal Dischargers
A; General Policy
Ordinarily, effluent limitations in an NPDES permit for a
municipal discharger should be consistent with the parameters
for BOD, SS, and pH which constitute secondary treatment, and
should be limited to those parameters (See 40 CFR 133.102).
B. Exceptions
Effluent limitations in addition to or more stringent than
those promulgated in 40 CFR 133.102 are appropriate in the
following circumstances:
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2
a. Where such effluent limits are necessary to
achieve best practicable waste treatment tech-
nology (BPWTT) pursuant to sections 301(b) (2) (B)
and 201(g) of the Act;
b. To achieve water quality standards established
under section 303 of the Act or to attain or
maintain a specified water quality through water
quality related effluent limits established under
section 302;
c. To conform to the conditions of a State
certification under section 401 of the Act;
d. To incorporate any requirements established
pursuant to Federal or State law or regulations in
accordance with section 301(b) (1) (C) of the Act;
e. To be consistent with the requirements of a Water
Quality Management plan pursuant to section 208(e) of
the Act;
f. To incorporate any requirements or limitations as
necessary pursuant to NEPA where construction grants
are involved;
g. To incorporate standards promulgated under section
307(a) of the Act;
h. To incorporate section 403(c) criteria established
for ocean discharges;
i. To incorporate limits for toxic pollutants, particularly
to protect downstream water supplies or to address
ambient levels of those pollutants;
j. Where the character of the wastes discharged
indicates that an additional parameter or para-
meters other than those based on secondary treat-
ment are significant (particularly to reflect pre-
treatment requirements on contributing industries
or treatment by other than a conventional secondary
system), and must be addressed on a case—by—case
basis.
C. Djscu sj
The exceptions listed in sections (a) through (i) above
should be sufficiently clear that no further explanation is
warranted. For reference in this regard, however, Decision of
the General Ccunsel No. 14 is attached.
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3
Exception (j) envisions a facility which, while municipally—
owned, handles discharges of substances incompatible in normal
secondary treatment systems. In these Situations, the facility
actually falls outside of the circumstances contemplated by EPA’s
secondary treatment standards (40 CFR 133.102). In general, both
those standards and the language of the Act [ section 301 (b) (1) (B) J
are based on the assumption that the facility is a normal secondary
treatment system and that the pollutant character of the discharge
is primarily BOD and suspended solids, with other incompatible
wastes being removed through proper pretreatment, However, in its
explanation of the intended use of the secondary treatment standards,
EPA expressly indicated that additional permit limitations are
appropriate on a case—by—case basis where this assumption proves
to be unfounded.
It should be noted that it is intended
that permits will be issued to publicly owned
treatment works which may impose effluent limi-
tations applicable to pollutants other than bio-
chemical oxygen demand, suspended solids, pH, and
fecal coliform. Such limitations will reflect and
take into consideration pretreatment reQuirements
that may be imposed upon specific discharges
pursuant to section 307, and such pretreatment
requirements will take into account levels of
reductions which will be attainable by a given
municipal treatment by secondary treatment.
(38 F.R. 10642 (April 30, 1973)].
The authority to include such additional limitations is
based on section 402(a) of the Act .(see Decision of the General
Counsel No. 33, Issue III, attached).
This approach to POTW effluent limitations is particularly
significant in dealing with a POTW handling industrial wastes.
A clear example of such a POTW is one serving an industrial park,
which may primarily handle plating wastes rather than DOD and
suspended solids. In fact, a facility of this sort is a hybrid,
neither purely industrial nor purely municipal in the character
of its wastes, but classified municipal by the fortuity of muni-
cipal ownership. In these circumstances, additional limitations
based upon the particular character of the influent and applicable
effluent guidelines should be imposed as an NPDES permit requirement.
Additional parameters may also be significant where non—
secondary pollutants, such as lead or mercury, are contained in
the waste material treated by the POTW as the result of runoff
and other “indirect” sources.
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II. NON—MUNICIPAL (INDUSTRIAL) DISCHARGERS
A. General Policy
Ordinarily, effluent limitations in an NPDES permit for an
industrial discharger should be consistent with the parameters
established in applicable national effluent guidelines, and
should be limited to those parameters. Less stringent effluent
limitations may be included in a permit only through the use of
established variance mechanisms, including those available under
section 3 01(c) of the Act.
B. Exceptions
Effluent limitations on parameters in addition to or more
stringent than those contained in promulgated national effluent
guidelines are appropriate only in the following circumstances:
a. To achieve water quality standards established
under section 303 of the Act or to attain or
maintain a specified water quality through water
quality related effluent limits established under
section 302;
b. To conform to the conditions of a state certification
under section 401 of the Act;
c. To incorporate any requirements established
pursuant to Federal or State law or regulations,
in accordance with section 301(b) (1) (C) of the
Act;
d. To be consistent with the requirements of a
Water Quality Management plan pursuant to section
2 08(e) of the Act;
e. To incorporate standards promulgated under section
3 07(a) of the Act;
f. To incorporate any other requirement or limitations
into a new source permit as necessary pursuant to
NEPA;
g. To comply with section 403(c) criteria established
for ocean discharges;
h. To incorporate limits for toxic pollutants,
particularly to protect downstream water supplies
or to address ambient levels of those pollutants;
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5
i. Where a parameter not included in promulgated
effluent guidelines is important and its control on
a case—by—case basis pursuant to section 402(a) (1)
is necessary to carry out the provisions of the
Act;
j. Where a variance to best practicable control
technology (BPT) effluent guidelines in the form
of additional or more stringent parameters is
warranted by “fundamentally different factors.”
C. Discussion
It should be noted that more stringent effluent limitations
are not to be applied in first round permits for exemplary
facilities solely because the facilities have achieved effluent
limitations better than those set forth in the guidelines. The
presence of exemplary plants is essential to the guidelines
development because these facilities and their pollution control
methods are investigated as a basis for the determination of the
degree of pollution control which can be achieved. Placing
ffluent limitations on an exemplary facility more stringent than
eguired by the effluent guideline solely because the facility
nas exceeded the guideline to which it contributed is inequitable
and may be detrimental to future technological development.
However, there may be cases involving second round permits where
the conditions in the original permit are more stringent than
those required by subsequently promulgated effluent guidelines.
This situation is not addressed by this policy but is under
consideration as one of the many issues related to the issuance
of second round permits.
Copies of OGC’s Decisions Nos. 14 and 54, which provide a
legal discussion for allowing permit limits more stringent than
those provided in the EPA effluent guidelines and standards, are
attached for further reference.
7effrey C. Miller
Attachments
cc: Regional Enforcement Division Directors
Regional Permit Branch Chiefs
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• ED s?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460 TAB A
‘ -I - ,
-. •‘ -. - - 9 OFFICZ Q FORCD D f
fl- .? -I
MEN ORAIWUM
TO: Regional Administrators
Directors of the Approved NPDES Programs
FRON: Assistant Administrator for Enforcement (EN—329)
General Counsel (A—130)
EU3JECT: State Regulation of Federal Facilities Under the
Federal Water Pollution Control Act endments of
1977 (Clean Water Act) —— POLICY GUIDANCE MEMOP DUM
In roduction
The recent amendments to the FWPCA have significantly
changed the égu1atorv rela:ior.shi Cf State! to Federal
facilities under the FW?CA. First, section 313 of the F CA
was substantially amended to provide that Federal facilities
must comply with substantive and procedural recuirements of
State law regarding the control of water pollution including
State permits. Second, Federal permits to Federal agencies
now require State certification under section 401.
Sta:e Issuance of ?er izs to F dera1 Facilizies
under the 1977 amendments, States are authorized to
issue water pollution control permits to Federal facilities.
Prior to these amendaents, the Supreme Court had held that
Stafes could not require federally owned Cr operated facili-
ties to obtain State discharge permits.1/
1/ EPA v. California Recional Water Resources Control
3oard 426 u.S. 200 (1976)
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2
Section 313 was amended to require that Federal
facil ities:
• . shall be subject to and comply with
all . . . State, interstate, and local
requirements, administrative authority,
and process and sanctions respecting the
control and abatement of water pollution
in the same manner, and to the same extent
as any nongovernmental entity . . .. The
preceding sentence Shall apply (A) to any
requirement whether substantive or procedural
(including any recordkeeping or reporting
requirement, any reauirement respecting
permits and any other requirement, whatso—
ever) , (B) to the exercise of any
State or local administrative authority .
(Emphasis added.)
State and NPDES Permits
States are authorized to issue water pollution control
permits to Federal facilities. The section 313 amendments
do not restrict this authorjt to State or NPDES permits,
therefore States may issue both. Obviously, only approved
NPDES States can issue section 402 permits. Where a non—
approved State issues a State permit to a Federal facility,
the Regions should continue to issue an EPA permit in the
same manner as any other NPDES permit. To the extent
possible, issuance by a Region of an NPDES permit in these
circumstances should be coordinated with the State to avoid
inconsistencies and procedural delays.
The effect that the 1977 ? 1 e dmer.ts will have on the
NPDES permit program as it relates to State regulation of
Federal facilities is discussed below. The issuance of
State permits to Federal dredge and fill activities, and
State administration of the section 404 program is not
covered by this memorandum. These issues will be discussed
later.
State NPDES Proarams
Section 402(c) (1) of the Clean Water Act provides that
upon approving a State program, “the Administrator shall
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3
suspend the issuance of permits under subsection (a) of
this section as to those navigable waters subject to such
program . . ..‘ Except for Federal facilities, it has
always been EPA ’s position that section 402(c) (1) requires
States to have authority to issue permits to all point
sources. Prior to the enactment of the Clean Water Act of
1977, EPA withheld approval of State NPDES authority over
Federal facilities because Federal law precluded States from
issuing permits to Federal agencies. The Supreme Court
adopted EPA’s position in EPA v. California Regional Water
Resources Control Board, su ra n. 1.
However, in its decision, the Court made it clear that
Congress intended that the States be given maximum responsi-
bility for the permit system . . ..“ at n. 39. Moreover,
the Court approved withholding EPA approval of State programs
to the extent that they applied to Federal facilities only
because EPA urnay not . . . approve a state plan which the
State has no authority to issue because it conflicts with
federal lew. Id. at 226. Now that Congress has amended
the Clean Water Act specifically to include Federal facili-
ties within the class of dischargers subject to State
permits, it seems clear that States may no longer exclude
Federal facilities from regulation, just as they may not
exclude steel ail1s or power plants, or other sources over
which they may assert jurisdiction.
Accordingly, all NPDES programs ap?roved before the
1977 Amendments should be modified, including the Memoranda
of Agreement, to reflect the States’ ne authority to issue
Federal facilities permits.2/ 7 s a t of this modification,
2/ Modification is required because many States are prevented
by State law from issuing permits to Federal facilities.
Moreover, all States which adrninister the NPDES program
have entered into a Memorandum of Agreement which includes
a provision that prevents the State from issuing permits
to Federal facilities. For example, the State of Missouri
Agreement provides that:
This agreement does not cover the issu-
ance of NPDES permits to Federal facilities
within the State of Missouri. it is under-
stood by both parties that it is the intent
of EPA to expressly re:ain the permit issu-
ance authority for Fede:al facilities .
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4
the State shall submit a statement from its attorney general
that the laws of the State provide adequate authority for
issuance of permits to Federal facilities and to carry out
tne reporting, monitoring, inspection and entry authorities
set out below. The Office of Enforcement will develop
regulations to require these programs to be modified within
one year of promulgation unless a State must amend or enact
a law in order to make the necessary modification. In that
case the modification must be made within two years of the
date of regulation promulgation. Programs may be modified
before these regulations are issued. Program modifications
should be subject to public notice and opportunity for
comment. Modifications to the Memorandum of Agreement must
be approved by the Administrator.
It is possible that for some programs only the Memorandum
-cf Agreement need be modified to authorize State takeover of
Federal facility permits. In such cases the Regions may
relinquish their permit issuing authority to the State
solely by modifying the Memorandum of Agreement. Following
whatever program modification is necessary, the States
become the permit issuing authority for Federal facilities.
Permits issued or in the process of issuance by EPA to
Federal facilities located in ap roved NPDES States should
be transferred to the State in the same way other permits
were transferred following initial State takeover of the
program. In certain cases, however, the Recions may, as
an interim reasure, issue a Federal facility permit i an
approved State before completion of the necessary program
modifications if it is apparent that awaiting such mnodifi—
cat ons will cause an inordinate delay i permit issuance.
Fi.n lly, all State programs provec after enactment of
the 1977 Amendments (December 27, 1977) must provide for
State issuance of permits to Federal facilities. Existing
regulations are being changed to reflect this requirement.
Reporting, Monitoring, Inspection and Entry Recuiremnents
The section 313 amendments also explicitly require that
Federal facilities comply with any State “ recordkee ina or
re ortinc reaujremnent.” The Senate Report indicates that
this includes any reporting or monitoring requirements.
Senate Report at 67.
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5
States must have the right to enter and inspect Federal
facilities if their reporting and monitoring authorities are
to be meaningful. Moreover, it is clear from the language
of section 313 that Congress intended States to have such a
right of entry. The President is authorized to grant a
“paramount interest” exemption covering “any weaponry,
equipment, aircraft, vessels, vehicles, or other classes or
categories of property, and access to such property . . ..“
[ section 313(a)] (emphasis added). Clearly, unless the
President exempts a Federal facility, a State must be
allowed “access to the facility.3/
Initial State contact with a Federal facility for the
purpose of entry and inspection should be closely coordinated
with the facility and the Region particularly where access
to the facility is restricted.
. $tate Certification Under Section 401
The new amendments eliminated section 401 (a) (6)
which provided an exception for Federal agencies from
State certification. .ccording1y, NPDES permits issued by
EPA to Federal facilities require certification by the State
that the discharge is in compliance with all of the appli-
cable provisions of sections 301, 302, 303, 306 and 307 of
the FWPCA.
Please refer any further questions to jeffrey G.
Miller, Deputy Assistant Administrator for water Enforcement
(b/7!5—0440)
c . & . _
Marvin B. Durning J n Z. rnstein
3/ Section 308(c) authorizes States to exercise entry
authority under programs approved by EPA, but such entry
authority does not extend to Federal facilities. This
section, which was not revised by the 1977 Clean Water
Act, cannot be read to weaken or render ineffective the
clear authority provided States by the amend e ts to
section 313.
(
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R olF ; Krlow TO NAT1OW% . P LL%JTANT DISCH;R ELlMlN iON S 1tI4
i.t3 :DU4 A E94EPT EETT EEN T€ INDIAu ST EbM LLUT ION CO ROL
BQ%RD At\’ T -Z U fT D STATES EHVli O*f!NTAL FROTECTJON A ICY REGION V
Tn t4 ren cf ree ert appro ’e July 22, 1577, by t .e A inis tior of
he Lr ir S es Env ironmerral rroTe:tion Agency beti’ eer 1 tne In iana Sirwn Pot—
i ri r C r 4 rroi rd (here ne ier, ‘he ‘ t Steie”) an the U I1 Stetes EnvirornienteI
o eciio P. er cy (here er, “USEFA”) Re2 ion V is heresy o Ifie es follows:
Tr e Stele tdiI iise. i•ne N?DES permit procre vilh res ecr 70 Fe er&
e: ! r es er: s 5h04 Tne IT hes r e r .ority o e er en inspect
Fc ee; fe:il i es. Tree SrE e is res onsibIe for e i suen:e,
re s ..Jr.:e, cc p ier e rnoniToririg erforc e. r of eli N !S pi i s in
tr c a, ir)u ir. pcr its ecp! cebIe roFeoe.—e% f&cilities.
All referer ces ir: The t’e riOLr of ree.i e r which heve the et ecrof rerei
r . _ sbiii y ro tiEEPA- .e;ion V over Feoerai iliries heve nc force or effect
err r e effe: ive care of his ) Gificrriort. t o7hin in ihis ifice ion shcll
t: c:r ir.H e ri y c USEPA rn ke e i n pI2rct’Cnt o Sec+ ions 3O ,.
S, , 4 , D4, or orher Secric,rts of rhe Ar.
tr DA . EA FOLLUT ION COWT OL U.S. ENVI OI ’.EWTAL F OTECTI0N A ’CY,
3OA’ D REGION V
a _______________________________ ___________________________________
a. e——s-—— ——
— I.. a I. — —. • — — —
$ :r” f::?e - —:‘ .c.:v
— — I
-
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UNIT TATE5 ENVIRONMENT4L PROTECTION AGEt CY
Region V
OCT27 1978 ThBC
Transfer of NPDES Feoeral Facilities Program Authority
Under Section 313 of the Clean Water Act to the State
of ichigan - Action i’ emorandum
P DM• John McGuire
Regional Administrator
O: MarV%fl B. Durning, Assistant Administrator
for Enforcement (EN-329)
Is sue
Shall National Pollutant Discharge Elimination System (NPDES) program
authority for Federal facilities be transferred to the State of Michigan?
Discussion
The 1977 Amendments to the Clean Water Act authorize states to assume
PDES authority ‘ver Federal facilities. On June 21, 1978, Michigan
requested this authority and provided an Attorney General’s opinion that
the Michigan Depart , ent of Natur& Resources has all of the necessary
authority to administer the WPD S permit program for Federal facilities
(See Tab A). Our Regional Counsel has reviewed the Attorney General
Statement and concurs (See TaD 5).
Assumption of UPDES authority, except for agencies and instrumentalities
of the ederal Government, was transferrec by the Administrator to Michigan
on October 17, 1973 (See Tab C). The ‘iem3randurn of Agreement (MOA), which
was signed as part of the approval of I4ichioan’ 1 PD S program (See Tab D),
c3r.tains no disallowance of Michigan’s jurisdiction over Feoeral facilities.
Therefore, the MOA does not need to be mocified to allow Michigan to take
;.?D 5 risc c:thr. over Feder 1 facilities.
Recommendatj on
The rec ’est fr3m Michi an to assume U?DES authority over Federal facilities,
pursuant to Se::ior. 3 of the Clean Water Act, has been reviewed and is
consistent with the 4arch 10, 1978, Policy Guidance 4emorandum from the
Assistant Administrator for Enforcement and General Counsel coverinc
transfer of authority. Therefore, I recoc en that the request from the
State of Michigan tc assume UP S eutnoritv over Feoeral facilities be
a7proved. A suggested letter to the Governor of .Michican approving
r ichigan’s assumption of authority is enclosed (See Tab E).
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OCT2?178 2
Decision of Recional Administrator
That the request from the State of Michigan to assume NPDES authority over
Federal facilities, pursuant to Section 313 of the Clean Water Act, be
approved.
Approve: ___________________________
Di sapprov •
Date:
Di SDOSI ti On
A letter to the Governor of Michigan with a copy to the Executive Secretary,
Michigan Water Resou ce Co ission has been prepared for signature of the
•Administrator (See Tab E).
Concurrence
Deputy Assistant Ad iinistrator
for Enforcement Concur: ____
; onconcur:
.
uai.e. ______
Enclosures: Tabs A — E
c 1cn of Assistant A inistra:or for Enforcet
Approve: —
Disapprove:
Date:
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•Tab 0
1 ‘ \
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASv4)NGTON. D.C. 20460
ornct £XTDRCEM!WT
Honorable Otis R. Bowen, M.D.
Governor of Indiana
Indianapolis, Indiana 46204
Dear Governor Bowen:
On 3anuary 1., 1975, Indiana received authority to administer
the National Pollutant Discharce Elimination System (NPDES) within
its borders. EP A’s approval letter indicated that we would retain
authority to issue pe nits for Federal facilities within the State.
The reservation of authority over Federal facilities was necessary
because the Federal Water Pollution Cortrc l Act (FWPCA) orecluded State
regulation of these facilities.
The 1977 amendments to the FW?CA specifically authorize the
States to administer the I PDES pe it program for Federal facilities.
Accordingly, I have today approveo the State of Indiana’s reQuest to
assume this responsibility. I have tooey also approved a modification
to the Memoranou of Acreement between EPA and the State allowing this
transfer (copy enclosed). This approval overrices any contrary language
in EP s January 1, 1975, letter approvinc the State’s t D!S procram.
We are clad to :rar.s7er the ac inis:ra:ior o t e N D S pe it
rocram for rederal raciiities to the State 07 nciana. Region V will
be wor nc th the Indiana stream Pol’ut Control 3oer to facilitate
:nis transfer in a timely manner.
Sincerely yours,
Marvin . Durning
Assi star.: Ac nis:ra:or
for Enforcement
Enclosure
cc: Mr. Oral H. Hert
Technical Secretary
Indiana Stream Poiluticn Co t—cl Board
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I S
a7 —
UNrT’ED STATES ENVIRONMENTAL PROTECTION AGENCY
REGiON IX
215 Fremorn Street
San Francisco. C c. 94105
PUBLIC NOTICE OF PROPOSED ACTION
by the
t3.S. Eivironmental Protection Agency
Region IX
215 Freinor.t Street
San Francisco, Ca. 94105
( l5) 556—3450
June 23, 1978
On Se te ber 19, 1975, the Ad ini s::ato: of the Environ—
er ta2. Protection Agency cave approval to a :e uest from the
State of Nevada for authorization to administer the National
Pollutant Discharge E1ii ination Syste (NPDES) permit program
for discha:ces within tne jurisdiction of the State. This
authorization was made pursuant to Section 402(b) of the Fed-
eral Water Pollution Control Act k end er.ts of 1972. The
a thorjzatjon excluded discha:ces f:o facilities which are
agencies or ir.strumentalitjes of the Fede:al governrnent.
The .977 k e drents to the Federal a:e: ?c• lu:ion Control
. t (33 U.S.C. 12 l, t ) ro’zjd , in Sectic . 313. utho: ity
for states to reg 1ate discharces from agencies or instrumentali-
ties of the Federal f:vernnent. The Administrator of the En-
vironmenta2. Protectior. Agency proposes to expand the State of
:evada’ s N?DZS a thcrizat .on to Lnclude Federal fac.li:ies.
All co ents or objections received within 30 days of the
date of this notice will be considered by !P before takinc
final action. If sufficient public interest is ex resse a public hiaring
may be held.
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6 P PR 1978
n- ;g -i;--
TO: Regional Administrators
State NPDES Directors
FROM: Deputy Assistant Administrator for Water Enfor . nt (0 1 -335)
SUBJECT: Confidentiality of NPDES Permit Applications
Attached is a copy of a recent decision Issued by the Offic
of General Coamsel 1ch requires that all Information in RPDES
permit applications and permits be made public. Please advise
your staff of this chanc. so that iu lemantation can be uniform.
Jeffrey G. Miller
Attach t
cc: Regional Enfprca, nt Division Directors
Regional Permits Branch Chiefs
JShaffer:njIjte: PD:EN-336:3109 WSM:5 -0750
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r .?j ’ c
UNITED STATES ENVIRONMENTAL. PROTECUION AGENCY
WASHINGTON. D.C. 20460
MAR Z 2 1070 0 ’
w. SeN I1M. OOUII ..
MD1OBANDUM
SUBJECT: Confidentiality of DES Permit App1icati
•4 z
TO: Thomas C. Jorliug
Maistant £ 4 ’t trator for
Water and Hazardous Materials (WH-556)
n Durning
Assistant Administrator
for Enforeement (EN—329)
Attached is a Class Determination I have isgu’ad concerning the
status of potentielly confidential business information contained in
NPDES permits and IIPDES permit applications. I have concluded that
section 402(j) of the PWPC& requires that NPDES permits and permit
applications be made public notwithstanding the fact that some of the
information contained in them would otherwise be treated as confi
dential.
The Class Determination will be used by this office and the
Regional Counsels in making final confidentiality determinations
under the regulations in 40 CPR Part 2, Subpart B. Any request for
confidentiality 0 f information in a permit application or permit would
be denied citing the Class Determination. The applicant would be
given 10 day. notice prior to disclosure in which to seok a judicial
remedy. At the end of the 10-day notice period the information would
be made available to the public.
An important part of isiplem”ting this Class Determination is to
inform the various EPA regions and State agencies of the decision. I
have informed the Regional Counsels of the Class Determination and of
the way in which it is to be 1mpl ented. You will need to inform
your counterpart offices in the Regions and the States.
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2
I think it is also important that this be reflected In the NPDE
regulations, in the application forms, and in any informational
ma i ls used by EPA to explain the NPDES program.
Prom what I have been able to determine, this decision may be a
change from past practice in the treatment of Information in NPDES
permit applications. I believe that in the past section 402(j) was
overlooked, and st offices treated Information in NPDES permit
applications the sane as section 308 Information. Accordingly, it will.
take time to bring everybody up to speed on this change..
If you have questions about how your offices should Impl en the
Class Determination or other related matters, contact J s Nelson at
755—0794.
Attachment
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CLASS DETERMINAT ION 1-78
CONFIDRMTIALITT OF INFORMATION IN NATIONAL POLLUTION DISCHARGE
ELIMINATION SYSTRM PERMITS AND PERMIT APPLICATIONS UNDER SECTION
402(j) OF THE FEDERAL WATER POLLUTION CONTROL ACT
Under the Federal Water Pollution Control Act (FWPCA), as amended
(33 U.S.C. 466 .! j.) , the Environmental Protection Agency (EPA)
or coimterpart State agencies issue National Pollution Discharge
Elimination System (NPDES) permits to indiviàual sources of water
pollution. This program is ade( I tered primarily In EPA’s Regional
of fices • Those offices have askad for a Class Determination concern-
ing the confidentiality of information contained in NPDES permits and
permit applications in light of section 402 (j) of the PWPCA. Under
40 CFR 2.207, I have authority to issue Class Determinations concerning
th. confidentiality of classes of information obtained by EPA.
In the case of information contained in NPDES permit applications
and NPDES permits, I have found:
1. EPA possesses sud will continue to acquire information in
NPDES permits and permit applications.
2. The Information contained in NPDES permits and permit applica-
tions is of the same character. It is proper to treat all, of the
information as in the same class.
3. A Class Deterffi( ’iation would serve a useful, purpose in clarifying
the status of potentially confidential information contained in NPDES
permits and permit applications as restricted by section 402(j) of FWPCA.
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2
I have determined that information contained in &PDES permits
and NPDES permit applications is not entitled to confidential treat.
meat because section 402(j) of the PWPCA mandates disclosure of this
information to the public notwithstanding the fact that it might be
trade secrets or cameercial or f 4 ”’cial information.
Section 402(j) of FWPCA states “I copy of each permit applica—
tion and each permit issued under this section shall be available to
the public. Such permit application or permit, or portion thereof,
shall further be available upon request for the purpose of reproduction.”
This language is different from that in section 308 of the PWPCA.
Section 308 is the basic information gathering authority of the PVPC&.
Paragraph (b) of section 308 states “(ajny records, reports, or infor-
nation obtained under this section. . . shall be availabl, to the public,
except upon a showing satisfactory to the Adin4n4 rator by any person
that records, reports, or information, or parr.icul r part thereof (other
than effluent data), to which the M 4 ”istrator has access under this
section, if made public would divulge methods or processes entitled to
protection as trade secrets of such person, the Administrator shall
consider such record, report, or information, or particular portion
thereof confidential in accordance with the purposes of section 1905 of
title 18 of the United States Code....”
The inconsistency between the language of section 402 ( 3 ) and that
of section 308 was brought to the attention of the House Committee on
Public Works in a letter dated December 13, 1971, from Vi114 Ruckeishaus,
Administrator of EPA. Congress chose to treat the information covered
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3
by section 402 (.j) differently from the information obtained under
section 308. In all versions of the bill that be a the 1972
amendwq”ts to PWPC&, the same basic approach of requiring public
disclosure of NPDES permits and permit applications was followed.
The only amendments to section 402(j) were to eliminate a specific
enumeration of the offices in which copies would have to be kept.
In Senate Report 92-414, October 28, 1971, at page 72, the Senate
Coittee on Public Works made the following coents:
An essential element in any control program involving the
nation’s waters is public participation. The public
must have a genuine opportunity to speak on the issue
of protection of its waters. The Committee baa therefore
F
established requirements to provide opportunity for public
hearing by the Federal Government, or if State participa-
tion is approved by the AAIn4n( trator, the State, and other
provisions to make available to the public all relevant
information surrounding a discharge source and the control.
requirements placed on it. This includes the deposit of
any permit, and the conditions thereto, in a place of ready
public access. The scrutiny of the public and the exercise
of authority under this section is extremely important to
insuring expeditious implementation of the authority and a
high level of performance by all levels of government and
discharge sources.
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4
It is clear from the language of section 402(j)
legislative history of that provision that Congress intended section
402(1) to be a disclosure mandate in contrast to the basic approach
of section 308 which provides protection for trade se et information.
coing, EPA is required to make public NPDES permits and NPDES
permit applications.
The NPDES permit application is a standard form specified by EPA.
It asks th. applicant to supply certain specific information. In
some cases, there is insufficient space for the applicant to supply
all of the requested information. In those cases the applicant attaches
additional sheets with the further information. For purposes of section
402(3), the NPDES permit application required to be made public is the
application form itself and any attachments that e used to supply
information requested by the application form. Any information
obtained by EPA that goes beyond that asked for in. the application,
whether submitted by the applicant or obtained by EPA under authority
such as 40 CFR 125.13, is not considered part of the permit application
as contemplated by section 402(j). Thi. additional information will
be treated in accordance with the procedures of 40 cva 2 • 302.
If an applicant has clained as confidential any information
contained in the NPDES permit application or the NPDES permit, conE i—
dential treatment will be denied in accordance with this Determination
and notice given to the applicant in accordance with 40 CFK 2.205(f).
fic ’
Date
General Counsel (A-130)
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T
/ ‘ T
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
, / WASHINGTON. D.C. 20460
t .po I
APR 1 S 1978
OFc,CE OF ENFORCEMDfl
MEMORANDUM
TO : Regional Administrators
NPDES State Directors
FROM : Assistant Administrator for Enforcement
SUBJECT: Municipal Permit Extensions Under Section
30l(i)(l) of the Clean Water Act
In a memorandum dated March 13, 1978, I asked you
not to accept requests for municipal time extensions until
the final policy guidance and the interim final regulations
were issued. The regulations are now in the Agency red
border” sign—off stage and should go to the Federal Register
within the next few weeks.
I am aware that there are thousands of municipalities
that may be eligible for section 301(i)(l) extensions.
Many of these municipalities may not know that they must
apply for this extension by June 26, 1978. Several Regions
have asked me to allow them to notify municipalities of
their potential eligibility for time extensions under
section 30l(i)(l). I agree that municipalities should be
notified as soon as possible. Therefore, I am now asking
you to begin the notification process. However, I again
request that you not make any. section 301(i)(1) determi-
nations until the regulations appear in the Federal Register .
Attached are three sample letters you may use to notify
municipalities. These sample letters cover the full spectrum
of possible requesters: those holding ECSLs, those with
outstanding ECSL requests and those not falling into either
of these categories.
If you chose to draft your own notification letters
you should make the following points:
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—2—
1. Eligibility
(A) Construction is required to achieve secondary or
more stringent treatment limitations and (B) Construction
was underway before July 1, 1977 but could not be completed
by July 1, 1977 despite all expeditious efforts by the
municipality OR Federal financial assistance was not availab
in time to complete construction by July 1, 1977 and the
municipality did not significantly contribute to the
delay in funding.
2. Timing
Requests must be filed by June 26, 1978.
3. Effect on ECSLs
An existing ECSL will be terminated upon the determi-
nation to grant or deny a section 301(i)(1) request. All
outstanding requests for ECSLs are to be denied. An
existing ECSL for a source that has not requested a
section 301(i)(1) extension is to be honored.
4. Notification to Tie—Ins
All potential tie—ins must be notified as to the date
and fact of a section 301(i)(l) request because this date
has an effect on the timing of a section 30].(i)(2) request.
This notification is necessary for a section 301(i)(1)
request to be considered.
5. Supporting Documentation and Arguments
The requester may submit any additional information
(including proof of notification to tie—ins) supporting the
request within thirty days of making the request. This
thirty day period is not extendable.
?14.A4 4 iL)
Marvin B. Durning
Attachments
cc: Permit Branch Chiefs
Enforcement Division Directors
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SAMPLE LETTER TO
ECSL REQUESTER
IN THE MATTER OF:
Name of Permittee
NPDES Permit Number
According to our files _________________________ requested an
(Name of Permittee)
ECSL on ________• You were issued an ECSL on ________
(Date) (Date)
Section 301(1)(l) of the Clean Water Act of 1977 authorizes
____________________________________________ to grant extensions
(Name of Permit Issuing Authority)
of the July 1, 1977, treatment deadline through permit Issuance or
modification to certain publicly owned treatments works (POTWs). The
ECSL policy has been withdrawn due to this section, therefore your ECSL
request cannot be granted. You may be eligible however for a permit
extension under section 301(i)(l) of the Act. To be eligible for this
extension, a POTW must require construction to achieve secondary or
more stringent treatment limitations AND EITHER (1) Construction was
underway before July 1, 1977, but could not be completed despite all
expeditious efforts or (2) Federal financial assistance was not available
in time to complete construction and the PON did not significantly
contribute to the delay in Federal funding. If you believe that you are
eligible for this extension, you may request an extension by marking the
box below and returning this letter to ________________________________________
(Regional Adninistrator or State Director)
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2
by June 26, 1978. You may submit additional information supporting
your request within thirty days of this request, or you may rely on the
information supporting the ECSL request already in our files. The
permit issuing authority may also ask for more Information at a later
date.
Section 301(i)(2) also provides that certain non-municipal
dischargers and privately owned treatment works may apply for an
extension of the July 1, 1977, treatment deadline provided that one of
the following basic requirements Is met:
1) A permit issued before July 1, 1977, to the facili1y is based
on an eventual tie-in to a P01W.
2) An enforceable contract was made prior to July 1, 1977, to
tie—In to a P01W.
3) The POTW’s construction grant application or working plans
prepared before July 1, 1917, indicated that tie-in was
to occur.
Since these dlschargers imist file their section 301(1)(2) requests
within 180 days of the filing of your section 301(i)(1) request, you
must notify them of the fact and date of your request.
Please contact _________________________________ if you have
any questions about this letter.
Sincerely yours,
to
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3
C ) I hereby request a section 30l(i)(l) extension and have notified
or will notify within 30 days of this request, all non—municipal dis—
chargers scheduled to discharge into this PON of the date of this request by
( letter or newspaper notice) ’ (date) (Name of newspaper)
Signature of Authorized Agent (Date)
Title
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SAMPLE LETTER TO
ECSL HOLDER
IN THE MATTER OF:
Name of Perinittee
NPDES Permit Number
According to our files _________________________ requested an
(Name of Permittee)
ECSL on ________. You were issued an ECSL on ________
(Date) (Date)
Section 301 (i)(l) of the Clean Water Act of 1977 authorizes
____________________________________________ to grant extensions
(Name of Permit Issuing Authority)
of the July 1, 1977, treatment deadline through permit issuance or
modification to certain publicly owned treatments works (POIWs). To be
eligible for this extension, a POTW must require construction to
achieve secondary or more stringent treatment limitations AND EITHER
C I) Construction was underway before July 1, 1977, but coul d not be
conpieted despite all expeditious efforts or (2) Federal financial
assistance was not available in time to conplete construction and the
P01W did not significantly contribute to the delay in Federal funding.
If you believe that you are eligible for this extension, you may
request an extension by marking the box below and returning this letter
to __________________________ _______________ by June 26, 1978. You
(Regional Administrator or State Director)
may submit additional information supporting your request within thirty
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2
days of this request, or you may rely on the information already tn our
files. The permit issuing authority may also ask for more information
at a later date.
If you request this extension, upon final determination of your
request, your ECSL will be terminated. If your 301(i)(l) request is
denied, your ECSL will not be reinstated and your present permit will
remain effective. Further, failure to obtain a 301 (l)(I) extension may
result in change In your position on the State project priority list.
There are two other circumstances under which your ECSL will be
terminated. If you do not request a section 301(l)(l) extension by
6 ’
June 26, 1978, and the terms of your ECSL are at any time violated, the
ECSL is void and you are subject to enforcement action. Also, your
existing ECSL cannot continue after the expiration of your current
permit.
Section 30l(i)(2) also provides that certain non-municipal
dischargers and privately owned treatment works may apply for an
extension of the July 1, 1977, treatment deadline provided that one of
the following basic requirements Is met:
1) A permit issued before July 1, 1977, to the facility Is based
on an eventual tie-in to a P01W.
2) An enforceable contract was made prior to July 1, 1977, to
tie-In to a POTW.
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3
3) The POTW’s construction grant application or working plans
prepared before July 1, 1977, indicated that tie—in was
to occur.
Since these dlschargers must file their section 301(1)(2) requests
within 180 days of the filing of your section 301 (flUI) request, you
must notify them of the fact and date of your request.
Please contact __________________________________ if you have
any questions about this letter.
Sincerely yours,
C ) I hereby request a section 301(l)(1) extension and have notified
or will notify withIn 30 days of this request, aU non-municipal dis—
chargers scheduled to discharge Into this P01W of the date of this request by
( letter or n spaper notice) ’ (date) (Name of newspaper)
Signature of Authorized Agent (Date)
Title
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GENERAL - SAMPLE LETTER
IN THE MATTER OF:
Name of Permittee
NPDES Permit Number
Section 30l(l)(l) of the Clean Water Act of 1971 authorizes
____________________________________________ to grant extensions
(Name of Permit Issuing Authority)
of the July 1, 1977, treatment deadline through permit Issuance or
modification to certain publicly owned treatments works (POTWs). To be
eligible for this extension, a P01W must require construction to achieve
secondary or more stringent treatment limitations AND EITHER (1) Construc-
tion was underway before July 1, 1977, but could not be completed by
July 1, 1977, despite all expeditious efforts or (2) Federal financial
assistance was not available in time to con 1ete construction and the
PO1’ l did not significantly contribute to the delay In Federal funding.
If you believe that you are eligible for this extension, you may request
an extension by marking the box below and returning this letter to
_______________________________________ by June 26, 1978. You may
(Regional Administrator or State Director)
submit additional information supporting your request within thirty days
of this request, or you may rely on the information already In our files.
The permit issuing authority may also ask for more Information at a later
date.
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2
Section 301(1)(2) also provides that certain non-municipal
dischargers and privately owned treatment works may apply for an
extension of the July 1, 1977, treatment deadline provided that one of
the following basic requirements Is met:
1) A permit issued before July 1, 1977, to the facility is based
on an eventual tie—in to a PON.
2) An enforceable contract was made prior to July 1, 1977, to
tie-in to a POTW.
3) The POTW’s construction grant application or working plans
prepared before July 1, 1977, Indicated that tie-In was
to occur.
Since these dischargers imist file their section 301(0(2) requests
within 180 days of the filing of your section 301(1)0) request, you
must notify them of the fact and date of your request.
Please contact _________________________________ If you have
any questions about this letter.
Sincerely yours,
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3
C ) I hereby request a section 301(i)(1) extension and have notified
or will notify within 30 days of this request, all non-municipal dis—
chargers scheduled to discharge into this P01W of the date of this request by
(letter or newspaper notice) (date) (Name of newspaper)
Signature of Authorized Agent (Date)
Ti ti e
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%
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
, / WASHINGTON. D.C. 20460
APR 19 1978
ocF,cE O
GENERAL. COUNSL.
ri -• - -‘;f
MEMORANDUM
TO: Assistant Administrator for
Enforcement
Regional Enforcement Directors
NPDES State Directors
FROM: Joan Z. Bernstein
General Counsel
SUBJECT: Certification and Permitting of Dischargers Located
on Wateis Forming Boundries Between States
QUESTIONS PRESENTED
When a facility is located within one State, but the end
of the discharge pipe is located within the waters of another
State, which State has certification rights pursuant to
Section 401 of the Clean Water Act (“The Act”)? If the Section
402 NPDES permitting authority has been transferred by the
Administrator to the States, which State has the 402 permitting
authority?
FACTS
On February 16, 1978, the Atomic Safety and Licensing
Appeal Board of the Nuclear Regulatory Commission issued a
decision which interpreted Section 401 of the Act. The
Board determined that the proper State to issue a certifica-
tion is the State which has jurisdiction over the navigable
waters in which the discharge originates rather than the State
in which the facility is located. The Board noted that:
“we are prepared to give substantial weight
to the interpretation given a statute by the
agency Congress entrusted with its administra-
tion. In this case, we acknowledge that EPA
is that Agency with respect to the Water Act.
But EPA has not specified how Section 401
controls the outcome of the issue
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2
before us. We are, therefore, left to do
so ourselves.” (PUBLIC SERVICE COMPANY OF
INDIANA, INC., Docket Nos. STN 50546,
STN 50—547, slip op. at 20—21, footnotes
omitted).
On February 28, we received a letter from the attorneys
for the Public Service Company of Indiana requesting that we
address the legal issue which is before the NRC. In addition,
we had informal communications with representatives from the
NRC staff and the Commonwealth of Kentucky similarly request-
ing that we address the issue. On March 20, we wrote the
Secretary of the NRC and notified him that we would prepare
a legal opinion on the 401 certification question.
The proposed Marble Bill Nuclear Generating Station will
be located in Indiana. Its discharge will enter the Ohio
River, which forms the border between Kentucky and Indiana.
Apparently, the precise border is located at the low water
mark on the Indiana side of the river.l/
The legal question raised is of significance to
this Agency because there are 29 rivers in the United States
that are boundaries between two States. While the boundary
tine between the States is usually the midline or thread of
the channel of the stream, this is not always the case. For
some rivers the boundary line is the high-water mark or low—
water mark on one side of the river.
The boundary line creates questions not only in regard
to certification under Section 401 of the Act but also in
regard to the question of which State has the permitting
authority under Section 402 of the Act. In this opinion
we shall address both issues.
ANSWER
The State in whose waters the discharge originates is the
certifying authority pursuant to Section 401 of the Act.
Section 401(a)(l) provides that whenever the construction or
operation of a facility “may result in any discharge into the
navigable waters”, the certifying State shall be the one
1/ There is a factual question as to whether the discharge
originates in Kentucky or Indiana waters. As noted in our
March 20 letter, we shall not address this factual question.
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3
“in which the discharge originates or will originate.” While
it might be argued that a discharge of pollutants actually
“originates” where the manufacturing or industrial facility
is located, rather than at the end of the discharge pipe,
the entire structure of the Clean Water Act, its legislative
history, and intent clearly establish that the State whose
waters are affected by the discharge is the proper certifying
State.
Similarly, the State in whose waters the discharge or-
iginates is the Section 402 permitting authority. Section
402(b) provides that a permitting State shall “administer
its own permit program for discharges into navigable waters
within its jurisdiction.”
The State in which the facility is located has rights
pursuant to Section 40l(a)(2) and Section 402(b)(5) only
to the extent that the quality of its waters is affected
by the discharge.
DISCUSSION
The Clean Water Act is a comprehensive statute designed
to reduce and ultimately to eliminate the discharge of pollu—
- tants into the nation’s waters. The Act provides for a deli-
cate partnership between the Federal government and the
States in achieving this result. A major responsibility
of the Federal government under tne Act is the development
and promulgation of uniform national technology—based stand-
ards for categories and classes of industrial dischargers.
At the same time, the States are granted the authority (with
Federal support and in some cases oversight) to institute
a range of more stringent, more comprehensive requirements
to assure protection of the navigable waters within each
State.
Pursuant to Section 510 of the Act, the States are
empowered to develop more stringent water pollution control
requirements than those developed by EPA. Section 510(2)
also explicitly retains the authority of each State to control
the waters within its jurisdiction.
In addition to these general powers, the Act provides
that States shall have a series of rights and responsibilities
based upon the State’s jurisdiction and control over waters
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4
of the United States. Section 208(a)(2) of the Act requires
a State or its designated areawide agency to develop compre-
hensive pollution control plans for areas of the State which
have “substantial water quality control problems.” Clearly
the State whose waters are affected must take the lead role
in devising a plan to protect its waters.
Under Section 303 of the Act each State is required to
develop water quality standards for all waters within its
jurisdiction. Such standards consist of a designated use/uses
of the stream (e.g. “protection and propagation of fish and
wildlife”) and criteria necessary to support the use, (e.g.
“not less than 5 mg/l of dissolved Oxygen”). Prior to the
passage of the 1972 Amendments, such water quality standards
were the major water pollution control mechanism under the
Federal law. See State Water Control Board v. EPA , 426 U.S.
200-, (1976). While the role of water quality standards was
somewhat diminished by the 1972 Amendments, the standards
form a major basis for numerous State and Federal programs.
The difference between the designated standards and the actual
ambient water quality may provide the basis for Section
208 planning. Under Section 303(d) of the Act, States must
identify those streams where the federal technology—based
standards are insufficient to meet the designated water
‘quality standards. The States are required to develop maximum
daily loads for such streams and to develop more stringent
effluent limitations which will achieve the standards as
part of the continuing planning process under Section 303(e).2/
These State plans, laws, regulations, and other require-
ments are translated into limitations applicable to individual
point source dischargerg through the NPDES permit program
pursuant to Section 402 of the Act. And under Section 208(e)
of the Act, no permit can be Issued which Is in conflict
with an approved 208 plan. Under Section 30l(b)(l)(C), a
discharger must achieve by July 1, 1977, any more stringent
limitation necessary to meet the requirements of State law,
2/ In addition, Section 305(b) requires each State to
submit biannually a report describing the water quality
of all navigable waters within the State and the steps
which will be taken to improve water quality.
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5
including water quality standards. The 402 permitting authority
is required to assure that permits are consistent with
Sections 208(e) and 301(b)(l)(C), and thus consistent with
the requirements of State law including State water quality
standards and limitations developed pursuant to such standards.
Section 401 of the Act provides another mechanism to insure
that NPDES permits (as well as other Federal licenses and
permits) meet the requirements of state law, particularly
State water quality standards. Section 40]. has its origins
in Section 21(b) of the Water Quality Improvement Act of
1970, April 3, 1970, P.L. 91—224, 84 Stat. 91. This provision
required that any applicant for a federal license or permit
which might result in a discharge into navigable waters must
provide the permitting authority with a certificate from the
State in which the discharge originates or will originate
that:
“There is reasonable assurance, as determined
by the State or interstate agency that such
activity will be conducted in a manner which
will not violate applicable water quality
standards.”
Section 21(b)(1) also provided that if the standards had
been promulgated by the Secretary of the Interior, the certifica-
tion should be from the Secretary. Section 2l(b(9) further pro-
vided that if there were no applicable water quality standards,
no certification should be required. Section 21(5) therefore re-
cognized that the appropriate certifying authority is that which
has developed and implemented water quality standards for the water
body into which the discharge originates, since only the authority
that develops and implements the standards could provide the “rea-
sonable assurance” that the standards won’t be violated.
The substance of Section 21(b) became Section 401 of the
1972 Federal Water Pollution Control Act Amendments. The
State was no longer required to directly certify that its
water quality standards would be met by the permit, but
was instead required to certify that the discharge would
comply with “the applicable provisions of Sections 301,
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6
302, 30b and 307 of this Act. 3/ It is clear from the
legislative history of the 1972 Amendments that the major
purpose of Section 401 was to allow a State to assure that
its water quality standards would be met.
As noted in the Senate Report:
“The purpose of the certification mech-
anism provided in this law is to assure
that Federal licensing or permitting agencies
cannot override State water quality require-
ments.”
A Legislative Bistory of the Water Pollution Control Act
Amendments of 1972 , Senate Committee on Public Works, Com-
mittee Print, 93rd Cong. 1st. Sess., 1973 (‘L . Rist.”)
at 1487.
In his statement on the Conference Bill, Senator Muskie
furthe-r explicated this concern:
“If a State establishes more stringent
limitations and/or time schedules pursuant
to Section 303, they should be set forth in
a certification under Section 401.”
Hist . at 171.
3/ Se. tion 40 1was amended by the Clean Water Act of 1977
to include Section 303 in the list of enumerated sections.
As stated in the Conference Report:
The inserting of Section 303 into the
series of sections listed in Section 401 is
intended to mean that a federally licensed or
permitted activity, including discharge permits
under Section 402, must be certified to comply
with State water quality standards adopted under
Section 303. The inclusion of Section 303 is
intended to clarify the requirements of Section
401. It is understood that Section 303 is re-
quired by the provisions of Section 301 . .
Section 303 is always included by reference
where Section 301 is listed. (Rouse of Repre-
sentatives, Report No. 95—830, 95th Cong. 1st
Sess. December, 1977 at 96)
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7
“Secondly, the Conferees agreed that a
State may attach to any Federally issued
license or permit such conditions as may be
necessary to assure compliance with water
quality standards in that State.” Leg. Rist .
at 176.
The legislative history of Section 401 thus shows that Congress
intended that the certifying State be the State with jurisdic-
tion over the navigable waters at the point of discharge.
The language of Section 401 itself further supports the
same conclusion. First, Section 40l(a)(l) grants certifi-
cation to the State “in which the discharge originates or
will originate.” Under Section 502(12) the discharge of
the pollutant is defined as “any addition of any pollutant
to navigable waters from any point source.” Thus, there
is no discharge until the pollutants enter navigable waters.
For the purposes of Section 401, at least, the discharge
thus originates at the point at which it enters the navigable
waters .•j/
Secondly, when an interstate water pollution control
agency “ has jurisdiction over the navigable waters at the
point where the discharge originates or will originate”
it, rather than any State has the certifying authority.
This is further indication that the certifying authority
derives from jurisdiction over the navigable waters, not over
the land where the facility is located.
Section 40l(a)(3) provides further support for this con—
c1usio . Pursuant to Section 401(a)(3), a certification with
respect to the construction of any facility also is binding
upon any subsequent operating licenses for such a facility,
except that the certification may be withdrawn because of
changes in four circumstances:
4/ In his discussion of Section 401, Senator Muskie says
that the certification should come “from the State in which
the discharge occurs. ” (Leg. Bust , at 1388, emphasis added)
While there may be some question as to where a discharge
originates, there can be no question that the discharge
occurs in navigable waters.
It may be that the Congress used the word originates
to distinguish between the State in whose waters the discharge
initially enters from a downstream State whose waters are
also affected by the discharge. See footnote 5, infra .
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8
(A) The construction or operation of the
facility, (B) the characteristics of the
receiving waters into which such discharge
is made, (C) the water quality standards
applicable to such waters, or (D) applicable
effluent limitations or other requirements.’
A concern for the receiving waters and the criteria
applicable to such waters is primarily a concern of the
State which has jurisdiction over the receiving waters.
A State in which the facility is located may have a variety
of concerns about the facility but does not have any direct
concern or jurisdiction over the waters affected by the
discharge . /
Our interpretation of Section 401 is further buttressed
by a reading of Section 402 of the Act. Under this section,
permits are issued to point source dischargers. Although
permits are initially issued by EPA, the Act provides that
the permitting authority may be transferred to a State which
has an adequate program. Section 402(a)(5) provides for
a temporary transfer, while Section 402(b) provides for
a more permanent transfer. Both sections provide that
the State has the power to issue permits for all discharges
into its navigable waters:
‘The Administrator shall authorize a
State, which he determines has the capa-
bility of administering a permit program
which will carry out the objective of this
Act, to issue permits for discharges into
navigable waters within the jurisdiction
of such State. ” Section 402(a)(5) (emphasis
added).
5/ Section 401 does provide protection for any other State
whose water quality may be affected by the discharge. Section
40l(a)(2). Such State may object to the issuance of a permit
and request a public hearing. The permitting agency is then
required to hold a public hearing and to “condition such
license or permit in such manner as may be necessary to in-
sure compliance with applicable water quality requirements.”
States whose waters may be affected by the issuance of
an NPDES permit by another State also have rights to assure
protection of their water quality. See Sections 402(b)(5)
and 402(d)(2)(A).
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9
At any time after the promulgation of
the guidelines required by subsection (h)(2)
of Section 304 of this Act, the Governor of
each State desiring to administer its own
permit program for discharges into navigable
waters within its jurisdiction may submit to
the Administrator a full and complete descrip-
tion of the program it proposes to establish
and administer under State law or under an
interstate compact. Section 402(b) (emphasis
added).
Thus, the explicit statutory language of Section 402 autho-
rizes a State to issue permits for all discharges into
navigable waters within its jurisdiction.6/
In its letter requesting our opinion on this issue, the
Public Service Company of Indiana suggested that the oppo-
site answer would be preferable administratively since it would
avoid the necessity of making a factual/legal determination
in each case as to who owned the waters at the point of dis-
charge. We recognize that in some circumstances such a deter-
mination may demand the resources of the permitting agency,
‘but we believe that these considerations are insufficient to
override the clear language of the Act, its legislative history,
and its goals.
It has also been suggested that in issuing permits to
facilities located in another State, the permit granting
State may encounter difficulties in providing for inspection
and monitoring of the facility, and in the enforcement of
the permit. We do not regard these difficulties as insuper-
able, since we assume that all permits would include provisions
allowing the issuing State to monitor and inspect the facility.
In enforcing these provisions, or other provisions of a
6/ The House Report clearly states that a permitting State
does not have jurisdiction to issue permits for discharges
into navigable waters outside of State’s jurisdiction:
Subsection (a)(5) further provides that the Administrator
may authorize a State, which he determines has the capability
of administering a permit program, to issue permits for the
discharges into the navigable waters within the jurisdiction
of such State ( but not in the contiguous zone or the ocean).
Leg. fist , at 813. (emphasis added).
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10
permit, the issuing State could bring an action in its State
courts and should be able to establish that the defendant
had sufficient contacts necessary to support the State’s
long—arm jurisdiction.
The questions answered in this opinion have not pre-
viously been formally addressed by this Agency. It is our
understanding that this opinion is consistent with the
actual Nreal world permitting and certifying activities
in most regions. A number of regions, however, have evident-
ly allowed States to certify and to issue permits to facilities
located in such States which discharge into the navigable
waters of another State.
A permit issued by a State which does not have the
authority under the Clean Water Act to issue such a permit is
jurisdictionally defective, and would not therefore provide a
discharger with the protection provided by Section 402(k) of
the Act. I urge the Assistant Administrator for Enforce-
ment to take whatever steps are necessary to expedite the
re—issuing of such permits.
On the other hand, a Federal permit issued despite the
lack of certification from the proper State remains valid.
The Federal agency which issued such permit had the jurisdiction
to take such action. To the extent that the permit is incomplete
or illegal because of lack of proper certification, any injured
party could seek judicial review of such permit under the appro-
priate provisions of Federal law. Any State which failed to as-
sert its certification rights within the prescribed statutory and
regulatory time period may be deemed to have waived such rights
pursuant to Section 40l(a)(l) of the Act.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
16 MAY 1978
THE ADMINISTRATOR
MEMORANDUM
TO: Regional Administrators
Directors, Approved NPDES State Programs
SUBJECT: Reissuing NPDES Permits to Sources Affected
by the NRDC Consent Agreement
For the past several months, the Office of Water
Enforcement has been developing policies and guidance to aid
in the reissuance of the next round of NPDES permits. One
of the foremost concerns in developing these policies was to
incorporate the requirements of the settlement agreement in
Natural Resources Defense Council, Inc. et. al . v. Train
(8 ERC 2120 D.D.C. 1976) into our NPDES program in the most
orderly manner possible. This agreement, among other
things, requires us to shift our emphasis from regulating
traditional pollutants to limiting toxic pollutants in
permits issued to sources in 21 industrial categories.
On June 20, 1977 I established initial policies in a
memorandum to you entitled “Structuring NPDES Enforcement
Priorities in Light of the NRDC Consent Agreement.” Prelimi-
nary versions of a comprehensive policy for reissuing second
round permits were discussed with state and regional repre-
sentatives at a series of meetings held around the country
in November 1977. Final second round permits policies are
expected in the very near future, and other guidance to help
implement other aspects of the new amendments will follow
soon thereafter.
The 1977 amendments to the Federal Water Pollution
Control Act embody much of the philosophy and codify some of
of the requirements of the NRDC agreement. For this reason,
the general second round permits policies established to
date remain unchanged. One of the procedures established
in my June 20 memorandum, however, should be revised.
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The June 20 memorandum stated that “reissuing permits for
sources covered by the N DC consent agreement to include BAT
limitations should not be regarded as a high priority item
until guidelines become available in FY 79.” The June 20
memorandum then directed that this policy be implemented by
issuing short term permits, setting “the expiration date of
the permit . . . at one year following the date that the
applicable new BAT guideline is scheduled to be promulgated
under the terms of the NRDC agreement.”
This procedure for issuing permits to sources affected
by the NRDC consent agreement could lead to future problems
if the promulgation of a new BAT guideline is delayed for
any reason beyond the schedule established in the consent
agreement. Such delays could result in the expiration
of a short term permit before a new permit can be prepared
and issued, causing enforcement and administrative
difficulties. To account for this possibility, therefore,
the expiration date of short term permits issued to sources
in primary industries prior to the promulgation of new BAT
guidelines should be set at a date which is eighteen months
past the date that the applicable BAT effluent guideline is
scheduled to be promulgated. This is a change from the June
20 memorandum, which specified a twelve month overlap. This
added time will provide the necessary degree of flexibility.
Many state and EPA representatives have urged us
to revise the present short term permits policy to allow
the use of long term permits which would be reopened to
reflect new BAT requirements no matter when they are
promulgated. This approach is unacceptable, however, since
the reopener clause in such long term permits may not be
triggered if new BAT guidelines are not promulgated (for
example, new BAT guidelines will not be promulgated if no
toxic pollutants are found or if existing regulations
provide the necessary degree of control). If the reopener
clause in long term permits cannot be triggered, then
these BPT level permits will expire shortly before July 1,
1984, and thus will not assure that BCT and BAT will be
installed by the statutory deadlines.
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The reopener clause required by the NRDC consent
agreement, together with other pertinent requirements, will
be promulgated in the Federal Register in the very near
future. At the same time, proposed regulations will appear
which set requirements for issuance of permits to sources in
industries affected by the NRDC agreement prior to the
promulgation of new BAT guidelines. EPA regional offices are
directed to issue short term permits to these sources which
incorporate the reopener clause and which expire eighteen -
months following the scheduled promulgation of new BAT
guidelines (appropriate expiration dates for the 21 industries
affected by the NRDC agreement will appear in the same
Federal Register proposal). Somewhat broader requirements
are set for issuance of permits by NPDES States, although
these States are strongly urged to follow the short
term permit approach.
I want to emphasize that these policies affect only
those sources in the 21 industries identified in the NRDC
consent agreement that may be affected by the new BAT
guidelines for toxic pollutants. This change in permit
issuance procedure in no way affects EPA’s commitment to
publish guidelines in a manner consistent with the NRDC
consent agreement and the 1977 Clean Water Act. Further,
it remains our policy to incorporate these guidelines into
permits as expeditiously as possible in order to assure
compliance with all statutory deadlines.
The policies established in my June 20 memorandum were
prepared prior to the appointment of Marvin B. Durning as
Assistant Administrator for Enforcement. Now that Mr. Durning
has become familiar with our permits program, I have asked
him to be responsible for directing this program. Accordingly,
future guidance and policy affecting the issuance of second
round permits will be established by the Assistant
Administrator for Enforcement.
I trust that this change in policy will be helpful to
regional and state NPDES programs. If this presents any
unusual problems or if you have an questions, please call
Mr. Jeffrey G. Miller, Deputy As tant Administrator for
Water Enforcement (755—0440).
Dou as Costle
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
25 M Y 1978
OFFICE OF ENFORCEMENT
MEMORANDUM
TO : Regional Administrators
: NPDES State Directors
FROM : Deputy Assistant Administrator
for Water Enforcement (EN—335)
SUBJECT: Coal Mining Under the Surface Mining Control and
Reclamation Act of 1977 and its Relationship to
EPA’S Current Responsibilities for Coal Mining
Operations
Introduction
The Surface Mining Control and Reclamation Act of 1977
(SMCRA) was passed on August 3, 1977. The SMCRA authorizes
the Department of Interior to issue permits to control all
aspects of water pollution from coal mining operations
through the newly created Office of Surface Mining (OSM).
The purpose of this memorandum is to acquaint the states and
EPA Regions with some of the highlights of the SMCRA as well
as summarizing certain initial permit activities and require-
ments for coal mining operations.
Sources of Pollution Regulated by OSM and EPA
EPA’s present regulatory authority is based primarily
on the EPA Coal Mining Point Source Category effluent
limitations guidelines for ‘Best Practicable Control
Technology Currently Available’ (promulgated in May 1977)
and for ‘sew Source Performance Standards’ (proposed in
September 1977) and is restricted to surface water pollution
during the active mining stage. There are.no ‘Best Available
Technology Economically Achievable’ effluent limitations at
this time. The OSM regulation on the other hand, has
performance standards that apply to all sources of coal
mining operation pollution, underground as well as surface
waters, and continues even after mining operations
cease (until the bond is released). The OSM permits will
require that the coal mining operations meet very
specific environmental protection performance standards,
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which include in addition to technology-based effluent
limitations, restoration of land to original or alternate
use and approximate original contour; removal, segregation,
and replacement of topsoil; stabilization of waste piles;
control of mine waste disposal and use of access roads; and
revegetation of mined land.
OSM State Permanent Programs
The OSM permanent program, which is based on sections
503 and 504 of SMCRA, is greatly dependent on the states;
however, only seven out of the 39 coal mining states are
expected to have the program at the end of fiscal 1978.
To be delegated the OSM program, the states must submit to
the OSM within 18 months (February 3, 1979) from the date
the SMCRA was passed (August 3, 1977), a program which
demonstrates that the state has the capability of carrying
out the provisions of the SMCRA. The program must include:
(1) a surface mining law requiring permits and sanctions
for violations in accordance with the Federal program; (2)
sufficient administrative authority; (3) a plan for designat-
ing areas as unsuitable for surface mining; and (4) rules and
regulations consistent with Federal permanent regulations.
If a state does not submit a program within 34 months
(June 3, 1980) of the enactment of the SMCRA, a Federal
program will be developed for the state. It is noteworthy
that each state making an application will have to address
coordination of state—wide activities related to approvals
for coal mining operations. The permanent Federal regulations
are currently scheduled for promulgation on November 1, 1978.
Responsibilities Under OSM and NPDES Regulations
OSM published final interim or uinitialu regulations
establishing an initial regulatory program for coal mining
operations on December 13, 1977. Thirty—seven of the 39
coal—producing states, have or will shortly have,
authority to require a coal mining operator to obtain a coal
mining permit. After February 3, 1978, these state—issued
permits must include provisions equivalent to those of the
OSM regulations. This is true whether the state has the OSM
program or not. Since the OSM provisions encompass substan
tially more regulatory authority than NPDES provisions, OSM
provisions would only be incorporated into NPDES permits
indirectly, i.e. effluent limitations which are the same
under both the OSM and the NPDES regulations.
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Typically, where EPA has the NPDES program, the NPDES
permit would only cover point sources discharging from the
mining operation and limitations would be in accordance with
the effluent limitations promulgated under section 301 of
the Clean Water Act of 1977. Additionally, the EPA
limitations only apply to the active coal mining area and
EPA would not be in a position to impose OSM performance
standards such as the OSM requirement that all discharges
from the entire disturbed area pass through a sedimentation
pond. However, EPA would be required to review and issue
permits for any point source discharges from the disturbed
area and conditions for these permits would be assigned
based on best engineering judgment (there are no effluent
limitations for disturbed areas or similar activities) and
the existing OSM effluent limitations.
If there is a potential for runoff of toxics or
hazardous materials (sections 307(a) and 311) to surface
waters from coal mining activities, section 304(e) of the
Clean Water Act authorizes EPA to control this non—point
source runoff by imposing best management practices. Due to
the comprehensive authority of the SMCRA and the OSM
regulations, the regulation of non—point sources will, for
the majority of cases, be left to OSM.
In addition to the February date which calls for OSM
requirements in state coal permits, May 3, 1978, is also
significant because after this date all existing coal mining
operations are subject to the provisions of the OSM interim
regulations either as a result of amendments to existing
state permits or as a result of edera1ly initiated actions
by the OSM. The interim regulation is also subject to
citizen suits. The OSM actions might result where some
states do not have the required statutory authority necessary
to regulate coal mining operations. OSM will, however, have
inspections and enforcement programs for all 37 states
covered by the interim program.
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—4—
Memorandum of Understanding
To avoid duplication of efforts in issuing permits,
making inspections and taking enforcement actions, a
Memorandum of Understanding is being developed by EPA and
OSM that delineates the responsibilities of each Agency with
respect to the issuance of point source discharge permits
and coal mining permits. It is believed that this Memorandum
will be drafted encouraging EPA Regional Offices to develop
more detailed agreements with the appropriate OSM Regional
Offices reducing regulatory duplication wherever possible.
If you have any questions or need further information
- please call Richard Sternberg (8/472-3665)
‘—
.Jef irey/G. Miller
cc: Enforcement Division Directors
Permit Branch Chiefs
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I D
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 WASHINGTON. D.C. 20460
JUN 13 1978
G(N&AAI. UNW.
,,- -r -3
MEMORANDUM
TO : Deputy Assistant Administrator for Water
Enforcement (EN—329)
FROM : Associate General Counsel l %’.
Water and Solid Waste Division (A—131)
SUBJECT: Your Request for Opinions on Variances in Second
Round NPDES Permits and Other Issues
In your May 16 memorandum, you asked for OGC’s opinions on
a number of issues. Your questions, and our responses, follow.
‘ Variances
Question 1
Is a “fundamentally different factors” variance clause, as
contained in BPT effluent limitations ‘uidelines, legally re-
quired for BAT and BCT effluent limitations?
May one variance provision be established in the NPDES
regulations which applies to all BAT, BCT and BPT guidelines
rather than inserting the provision in each guideline?
Answer
A “fundamentally different factors” variance clause is not
legally required for either BAT or BCT. On the other hand, such
a clause is not prohibited by the Clean Water Act. We believe
that the inclusion of such a variance for BCT and BAT is reason-
able sin e the combination of the Agency’s limited resources and
the variety of industrial processes and treatment possibilities
suggest the difficulty of covering the peculiarities and unique-
ness of specific facilities solely through the use of sub-
categories in national regulations.
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—2-
Such variance clauses will, not allow facilities to avoid BAT
or BCT but will rather insure that facilities achieve an
individualized BAT or BCT when the general regulations are
inappropriate.
It is legally permissible to establish one variance pro-
vision in the NPDES regulations rather than inserting the
provision in each guideline, provided the regulation cites
Sections 301 and 304 in the authority statement.
Discussion
The Clean Water Act has no provisions for a “funda-
mentally different factors” variance from any of the techno-
logy—based effluent limitations guidelines —— BPT, BCT, BAT,
or N$PS. The FWPCA Amendments of 1972 contained a variance
for BAT, under which the owner or operator of a facility
could demonstrate that less stringent limitations would
“represent the maximum use of technology within Ibis]
economic capability.” Section 301(c). The Clean Water Act
of 1977 also provides for a variance from BAT when a facil-
ity could demonstrate that less stringent limitations would
be sufficient to protect water quality. Section 301(g).
The 1977 Amendments provided explicitly, however, that
neither the 301(c) nor the 301(g) waivers could be utilized
for relief from BAT toxics limitations. Section 301(1).
In addition, Section 301(g) by its terms is not available
for relief from limitations based upon BCT or upon thermal
limitations. Similarly, Section 301(c) relief is limited
to variances from BAT and is not availEble for relief frcni
limitations based upon BCT. In addition, the legislative
history of the CWA indicates that there are no waivers for
toxic or conventional pollutants. (197 Cong. Rec. S19649,
Dec. 15, 1977).
Congress has explicitly provided for certain variance
procedures applicable to only one of the technology—based
limitations of the Act, (BAT) and applicable only to certain
pollutants (those that are neither conventional nor toxic).
Thus, the question is whether the Administrator has the
authority to create additional variance mechanisms other
than those specifically authorized by the Act. The Supreme
Court has addressed this issue in E. I. du Pont de Numours
& Co . v. Train , 430 U.S. 112 (1977), where it ruled that
EPA was authorized to set uniform technology—based regula-
tions for both BPT and BAT, but was required to provide a
mechanism for variances for individual plants. At the same
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time, however, the Court ruled that EPA lacked the authority
to provide a variance from the NSPS technology—based require-
ments of best available demonstrated control technology.
The Court held that:
the statute authorizes the 1977 limita-
tions as well as the 1983 limitations
to be set by regulation, so long as
some allowance is made for variations
in individual plants, as EPA has done
by including a variance clause in its
1977 limitations. [ 430 U.S. at 128.] L
The Court also noted that Congress had explicitly provided for
a BAT variance mechanism through Section 301(c). EPA regula-
tions at the time included no additional variance mechanism
such as fundamentally different factors for BAT. By impli-
cation, we believe the Court suggested that the statutory BAT
variance was sufficient and that the Agency was not required
to provide additional variance mechanisms for BAT.
In its discussion of the NSPS, however, the Court over-
ruled the Fourth Circuit Court of Appeals and held that EPA
)acked the authority to provide for variances for new
sources:
The question, however, is not what
a court thinks is generally appropriate
to the regulatory process; it is what
Congress intended for these regulations.
It is clear that Congress intended
these regulations to be absolute prohi-
bit ions. The use of the word standards
implies as much. So does the description
of the preferred standard as one
permitting no discharge of pollutants.
(Emphasis added). It is unlawful for
any owner or operator of any new source
/ The Court also concluded in a footnote that it would be
premature to consider whether EPA’s ufundamentally different
factors’ variance for EPT had the proper scope.’ 430 U.S.
129, n. 19.
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to operate such source in violation of
any standard of performance applicable
to such source. Section 306(e).
(Emphasis added). In striking
contrast to Section 301(c), there is
no statutory provision for variances,
and a variance provision would be
inappropriate in a standard that was
intended to insure national uniformity
and maximum feasible control of new
sources. Leg. Hist. 1476. du Pont
v. Train, supra , 430 U.s. at 128.
In distinguishing between the BPT and BAT technology—
based limitations on the one hand, and the new source
performance standards on the other, the Court appears to
place major reliance upon the difference between ueffluent
limitations guidelines and standards. In addition, less
explicitly, the Court appears to differentiate between exist-
ing sources and new sources. This appears to be a reasonable
distinction in regard to the applicability of variance mechan-
isms. A new facility can plan its location, its process, and
its waste treatment to meet uniform Federal requirements. An
existing facility may be limited in any of these regards.
For instance, an existing facility located in an urban area
may have insufficient land to construct the necessary treat-
ment facilities, while a new source could choose its site to
assure sufficient land for the required treatment facility.
Thus we believe there is a rational basis for a
determination by the Agency that the ufundamentally different
factorsu variance which has been provided for BPT should also
be pr9vided for. BCT and BAT in addition to the statutory BAT
variance mechanisms which have been included in the Act,
particularly since the statutory 301(c) variance, which the
Court relied upon as an adequate variance mechanism for the
1983 requirements, will no longer be available for certain
classes of pollutants. We believe that providing such a
mechanism will increase the likelihood that the Courts will
uphold our BCT and BAT regulations upon a challenge by
specific companies or facilities that the regulations are
arbitrary and capricious on the basis of inadequate sub—
categorization, or failure to consider individual problems
of all plants in an industry.
It can be argued that Congress explicitly forbade the
Administrator from developing a fundamentally different
factors variance for toxic BAT in Section 301(1). That
section provides:
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The Administrator may not modify
any requirement of this section as it
applies to any specific pollutant
which is on the toxic pollutant list
under Section 307(a) (1) of this Act.
We believe, however, that Congress intended only that
toxic pollutants not be subject to the modification
provisions of Sections 301(c) and 301(g). These two modif i—
cation provisions allow a discharger to receive relief from
BAT effluent limitations and instead to install a level of
treatment less stringent than BAT. On the other hand, a
fundamentally different factors variance does not provide
relief from meeting BAT. Rather, it provides for the
development of an individualized BAT for a particular
facility based upon factors which establish that the national
uniform effluent limitations guidelines are not applicable
to that facility. Thus, a discharger who receives a fundament-
ally different factors variance from the national guidelines will
not be given a modification from meeting BAT, but will rather be
given an individualized BAT.
Question 2
Do the provisions of 301(c) and 301(g) apply to
permit limits for nonconventional pollutants which are
based upon a Section 402(a)(l) BAT determination in the
absence of guidelines?
Answer :
Yes. Since thu specific factors specified in 301(c)
(the economic capability of the particular facility) and
301(g) (the effect of the specific discharge upon water
quality) are not relevant to the determination of BAT
pursuant to 402(a)(l), it would be inequitable to deny
the discharger the opportunity to request a variance
from BAT on the basis that no guidelines exist.
Discuss ion
Section 402(a)(l) provides that all NPDES permits
issued by the Administrator shall meet
either all applicable requirements
under Sections 301, 302, 306, 307,
308, and 403 of this Act, or prior
to the taking of necessary implement—
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ing actions relating to all such
requirements, such conditions as the
Administrator determines are
necessary to carry out the provisions
of this Act.
Pursuant to this section, the Administrator has developed
technology—based effluent limitations for individual permittees
in the absence of promulgated effluent limitations guidelines.
In developing such limitations, the Administrator has
considered not what constituted the technology—based limita-
tion for the specific facility, but rather what constituted
the technology—based limitation for the category and class of
point sources of which the particular facility was a member.
This approach has been judicially upheld in United States
Steel Corp . v. Train , 556 F.2d 822, 844, (7th Cir. 1977) and
Alabama v. EPA , 557F.2d 1101, 1110, (5th Cir. 1977).
A similar situation should apply in regard to case—by—
case BAT permit limitations. The economic capability of the
particular facility should not be considered in determining
BAT for the class or category of point source. Similarly,
the effect of the specific discharge upon water quality is
irrelevant in determining BAT. Thus the permittee should be
able to request a 301(c) or a 301(g) variance to the same
extent as if his permit were based upon promulgated BAT
effluent limitations guidelines.
Section 3 0l(j)(1)(B) requires a discharger to apply for
a 3 O1(c) or a 301(g) modification within 270 days of the
promulgation of an applicable effluent guideline. When no
effluent guideline exists, 3 01(j)(l)(B) is not applicable.
The Agency should specify by regulation the procedures and
the deadlines for requesting modifications of 402(a) (1) BAT
determinations.
Question 3
Are approved MPDES States authorized to make 3 O1(c) and
3 0l(g) determinations, subject to EPA review?
Answer
No. These determinations are reserved to the Adminjsta—
tor. However, the State must concur in any 301(g) determina—
ion, and EPA may require States to consider variance requests
and reco u end to EPA whether variances should be granted.
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Discusss ion
The 1972 AmendmentS to the Clean Water Act reflected a
pattern of careful consideration by the Congress of what
authorities under the law may be exercised by EPA and the
States. For example, Section 316(a) provided for thermal
waivers to be granted by either EPA or NPDES States. By
contrast, Section 302 authorized only the Administrator
to set water quality related effluent limitations. The
Conference Report specifically called attention to the
limitation of 302 authority to the Administrator and the
exclusion of States. See Conference Report on S. 2770,
Leg. fist. 305. Section 301(c) similarly provided no
authority to the States.
This pattern appears also in the 1977 Amendments.
Various waivers and extensions are authorized to be granted
by amended Section 301. Section 301(g) authorizes the
Administrator, with the concurrence of the State,u to grant
variances from BAT effluent limitations for non—toxic, non—
conventional pollutants where BAT is unnecessary to meet
the required water quality. Likewise, Section 301(h)
provides that deep—ocean outfall variances may be granted
by “the Administrator, with the concurrence of the
State . . ..“ Section 301(i) secondary treatment time
.extensjons, on the other hand, like 316(a) variances, may
be granted by “the Admiristrator (or if appropriate the
State).” Congress clearly intended that only the level of
government specifically authorized by the Act would have
authority to grant waivers or extensions.
Thus, neither 301(c) nor 301(g) variances may be
granteó by NPDES States. However, the statute specifically
confers on States the authority to veto, by refusing to
concur in, the.grant of any 301(g) waiver. Moreover, all
States have authority, where State law requires it, to set
more stringent limitations for a permittee such that a
301(c) or 301(g) waiver would have no practical effect.
For these reasons, it would be desirable to issue rules
requiring NPDES States to perform at least some of the
analysis which would be necessary to support granting or
denying requested variances under Sections 301(c) and
301(g). This point is discussed in more detail in our
response to Question 5, infra .
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Question 4
If 301(c) and 301(g) do apply to non—guidelines BAT per-
mit limitations for nonconventional pollutants, which of the
following methods for incorporating a 301(c) or 301(g)
determination into a permit is acceptable if an approved
NPDES State is issuing the permit?
1) Establish 402(a)(l) BAT limitations in a
draft permit independent of any 301(c) or
301(g) considerations and allow the
discharger to request a 301(c) and/or
301(g) variance from these limitations.
2) Establish both 402(a)(l) limitations in the
permit and the alternate limitations based
on any modification under 301(c) and 301(g).
This would require that the applicant
request the variance before issuance of the
draft permit.
3) In establishing the 402(a)(1) permit limita-
tions, the permit writer would, if the dis-
charger requests a variance under 301(c)
and/or 301(g),. consider the factors of
301(c) and 301(g) in determining the permit
limitations. In other words the draft
permit limits would represent BAT or BAT as
modified by 301(c) and 301(g) and would be
representative of both technological
factors and the factors unique to 301(c) and
301(g).
Answer
Modified versions of all three methods can be included
in a legally defensible system for permit issuance. We
believe that the best approach would be to adhere to the
procedural system outlined in forthcoming NPDES proposed
procedural regulations, as discussed below.
Question 5
Which of the following is the proper manner for EPA to
review the modification of a 402(a)(l) BAT limitation by a
State under 301(c) and 301(g):
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1) Under the veto authority of Section
402(d) (2);
2) Under the discretionary authority of 301(c)
and 301(g) as being outside the guidelines
and requirements of the Act. Since only
the Administrator is authorized to modify
effluent limitations under 301(c) and
301(g), the granting of a modification by
a State must be reviewed by EPA.
Answer
Properly speaking, EPA does not ureviewu these modifica-
tions at all; it must make the determinations in the first
instance. Procedural approaches for the State’s role in
these determinations are discussed below.
Discussion (questions 4 and 5 )
As noted in the answer and discussion f or question 3,
States have no authority to make determinations under
Sections 301(c) and 301(g) of the Act. They may, however,
be required to carry out analysis of relevent data and to
make a recommendation to EPA if such a requirement is
included as part of the guidelines issued under Section
304(i) of the Act.
Obviously, it would be possible under the language of
the Act for EPA to make determinations under Section 301(c)
and 301(g) independently of State permit issuance. However,
such a procedure would be unnecessarily cumbersome, and
could delay State permit issuance considerably.
The issuance of waivers under Sections 301(c) and 301(g)
can be incorporated into the overall framework for permit
issuance which will be set out in the forthcoming proposed
NPDES regulations. Under those regulations, all variances
not barred by Section 301(j) of the Act must be requested by
permit applicants not later than the close of the comment
period on the draft permit. At that point the permit issu-
ing State could be required to assess the application and
other information submitted by the applicant and to develop
a recommendation for the Administrator. Since States must
concur in the grant of a 301(g) waiver, the State could
deny a 301(g) request, or recommend that it be approved by
the Administrator. Since States have no authority under
301(c), they. could only recommend grant or denial of the
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waiver, or determine that State law required a more stringent
limitation, such that granting the waiver would have no
effect.
When the draft permit is transmitted to the Regional
Administrator for review, EPA would simultaneously review the
permit for compliance with the guidelines and requirements”
of the Act, and grant or deny the 301(c) or 301(g) waiver on
the basis of the record developed by the State. Obviously,
the Administrator’s review would be greatly facilitated if
the State includes in the draft permit both the BAT effluent
limitations which would be required if EPA denies the
variance, and recommended limitations to be incorporated
into the permit if the Administrator grants the variance.
Currently, NPDES States follow roughly this procedure in
granting “fundamentally different factors” variances for BPT.
However, because it is not clearly set forth in the regula-
tions that the States must provide a careful analysis and a
complete record, States vary widely in providing informa-
tion. California provides a detailed decision with alterna-
tive recommended effluent limitations, and other States
provide only a recommendation accompanied by no analysis and
no recommended limitations. Careful regulations could ensure
efficient permit processing and EPA review. We will be
pleased to assist in dev 1oping such regulations.
Question 6
Telephone conversations with your staff indicate that
the first part of this question may be rephrased as follows:
For a particular discharger, assume that BAT allows no
more than 10 pounds per day, that a 301(c) determination
would allow 30 pounds; and that a 301(g) determination
would allow 20 pounds. If the discharger’s 301(c) and
301(g) requests are considered together, can relief even
beyond 30 pounds be granted?
Answer
No.
Discuss ion
In our view, the only natural reading of the two sub-
sections is the one suggested in your discussion of this
question. Congress has provided two substantively
independent variance mechanisms, and a discharger is
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entitled to the limit derived from the variance which gives
him the most relief. To allow relief even beyond the more
generous of the two limits derived from (c) and (g), however,
simply has no support in the statute or legislative history.
Question 6 — Part 2
If a discharger requests and is granted any relief
under Section 301(c) from the requirements of BAT can
further relief be subsequently given under Section 301(g)
or •vice versa?
Answer
Except in highly extraordinary circumstances, no.
Discuss ion
It is first useful to review the relevant statutory pro-
visions and legislative history:
- —— Section 301(j)(1)(B) provides an ascertainable dead-
line for filing 5301(g) requests: the later of (i) September
!3, 1978 / or (ii) 270 days after promulgation of the
applicable S304 BAT guidelines.
—— Section 301(g)(2) provides that if one applies
for a S301(g) waiver for a pollutant he may apply for a
301(c) waiver for that pollutant uonly during the same time
periodu allowed for the 5301(g) waiver request.
—— The Conference Report for the 1977 Amendments
states at page 85:
If the owner or operator of a point
source who requests a modification under
Section 301(g) also files for a
modification under Section 301(c), with-
in the same time period, and such section
301(c) modification is not granted, no-
thing in this section shall preclude such
2/ 270 days after enactment of the 1977 Amendments.
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owner or operator from reapplying for a
modification under Section 301(c) if as
a result of regulations under this Act
subsequent to the initial request for
modification there is a substantial
change in the economic circumstances
of the applicant which could not have
been anticipated at the time of the
initial request.
—— In explaining the Conference Bill to the House, Ray
Roberts, Chairman of the House Conferees, said:
If a discharger applies for waivers
under both 301(c) and 301(g), he must do
so within the same 270—day time period
to permit EPA to process both applica-
tions in the same period of time and
combine the proceedings, as the Agency
is indeed encouraged to do. Cong. Rec .
Hl2928, December 15, 1977.
It is clear from the foregoing that Congress intended
that Sections 301(c) and 301(g) requests be processed
simultaneously to the fullest extent possible. It appears
that the only deviation from the Sections 301(g)(2) and
(j)(l)(B) time—frames contemplated by Congress is the situa-
tion described on page 85 of the Conference Report as quoted
above.
There may be less to this deviation, however, than
initially appears. First, it applies only where a 301(c)
request was initially filed with a 301(g) request and the
301(c) request was denied. Second, it appears to apply only
where the change in the applicant’s economic circumstances
are as a result of regulations under this Act subsequent to
the initial request.
In general, we recommend that the procedures you
establish Ci) require that Cc) and (g) applications be filed
and processed simultaneously, and (ii) bar out—of—time
filings. /
3/ Except, for purposes of S30l(c), in the extraordinary
case of substantial change in economic circumstances re-
sulting from new EPA regulations.
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Second Round Permits
Question 1
When permits in primary industries are reopened and
modified following promulgation of effluent guidelines for
toxics, may the permit writer also insert other conditions,
specifically (a) Section 402(a)(l) judgments of BAT for
toxics, where necessary; (b) promulgated BCT effluent
limitations guidelines or 402(a)(l) BCT judgments;
Cc) promulgated BAT effluent guidelines (or 402(a)(l) BAT
judgments) for non—conventional pollutants; or Cd) limita-
tions necessary to meet water quality standards or 208
plans?
Answer
Yes. Once an applicable BAT effluent guideline for
toxic pollutants is promulgated and the permit reopened, all
then—applicable requirements of the Act must be included in
any modified or reissued permit.
Discussion
The recent revision to the State NPDES program regula-
tions requires that permits issued to dischargers in the
Appendix D industrial categories must include a mandatory
reopener clause’effective when an applicable effluent
standard or limitation is issued or approved following
issuance of the permit. The regulation provides that State
issued ermits must include a condition which requires
that:
[ T]he permit shall be promptly
modified or, alternatively, revoked and
reissued in accordance with such efflu-
ent standard or limitation and any other
requirements of the Act then applicable .
(Emphasis addd.) S124.46(a), 43 Fed. Reg.
22163, May 23, 1978.
EPA’S view of the legal authority supporting promulga-
tion of this section is stated in the preamble to the
revision. See id. at 22161. The preamble states EPA’s
belief that the 1977 CWA Amendments do not override the
NRDC v. Train consent decree requiring permits to be revised
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to include newly effective toxic guidelines and standards.
The preamble also states that EPA believes the reopener
clause provision does not exceed our legal authority under
Section 402(a)(l) to include any conditions necessary to
carry out the provisions of the Act. It is reasonable in
view of the Act’s goals and deadlines to require that when
a permit must be reopened and modified in part, it should
be brought fully into conformity with the requirements of
the Act as they exist at the time of the modification.
While Sl24.46(a) addresses the elements of a State
NPDES program, Section 402(a)(3) of the Clean Water Act
requires EPA’s permits to be subject to the same terms,
conditions, and requirements as apply to a State program.
Hence, the legal rationale applies equally to EPA permit
administration.
Accordingly, it is only necessary to consider whether
the condition sought to be added pursuant to S124.46(a)
or a comparable EPA condition is a requirement of the Act
then applicable.u It is clear that the specific conditions
listed in Question 1 would be requirements of the Act.
Effluent limitations for BCT or BAT (both for
,non—conventional pollutants and for toxics) established
under 402(a)(l) or promulgated EPA regulations are express
requirements of the Act under Sections 301 and 307.
Limitations necessary to meet water quality standards or
208 plans are also requirements of the Act under Sections
301(b)l)(c) and 208(e); by S124.46(a), the permit reopener
clause must also require that they be inserted in any
reissued or modified permit.
Hence, it is only necessary, to trigger the provi-
sions of a Sl24.46(a)—type reopener clause, that, after
a permit containing such a clause is issued, toxic
pollutant standards or limitations applicable to the
permittee are issued or approved under Sections
301(b)(2)(C) or CD), 304(b)(2), and 307(a)(2). Once
that occurs, the required permit condition states that
the permit must be modified or reissued and the
modified or reissued permit must include all conditions
necessary to reflect any then applicable requirements
of the Act.
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Question 2
Subparagraph 301(b)(2)(D) of the Act requires compliance
with BAT toxic effluent limitations for pollutants other than
those in the NRDC consent decree not later than three years
after ‘the date such limitations are established.’ Is an
effluent limitation established at the time of promulgation
of the effluent limitations guidelines pursuant to sections
301 and 304 of the Act, or at the time of the imposition of
such effluent limitations in an NPDES permit?
Answer
An effluent limitation is established on the date efflu-
ent limitations guidelines become effective. If no guideline
has been promulgated, the effluent limitation is established
at the time it is included in a permit pursuant to Section
402(a) (1).
Discussion
An effluent limitation is defined as ‘any restriction
established by a State or the Administrator on quantities,
rates and concentrations of chemical, physical, biological,
‘and other constituents which are discharged from point
sources . . ..‘ Section 502(11).
Technology—based effluent limitations are established
for classes and categories of point sources pursuant to
regulations under Sections 301 and 304 of the Act. It is
clear from the explicit statutory language of Section 301
that the limitations are established by regulation,
independent of the permit program under Section 402. Thus
Section 301(e) states that ‘effluent limitations established
pursuant to this section . . . shall be applied to all point
sources of discharge of pollutants in accordance with the
provisions of this Act.’ See also S309(a)(3).
However, when effluent limitations have not previously
been established pursuant to regulations under 301/304, they
can alternatively be established under Section 402(a) (1).
Effluent limitations developed in such a manner are
established at the time the permit becomes effective.
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Question 3
If a statutory deadline calculated under Section
301(b)(2)(D) results in a deadline which is before July 1,
1984, may July 1, 1984 be used as the appropriate deadline?
Answer
No. The statute is explicit in requiring that effluent
limitations for toxic pollutants which are added to the list
of 65 be achieved no later than three years after such limita-
tions are established. This could result in statutory dead-
lines which occur earlier than the July 1, 1984 date mandated
by Congress for those toxic pollutants which are on the
original list of 65. To the extent that this would create
administrative difficulties, the regulations could be issued
with an effective date of July 1, 1981, thus requiring compli-
ance by July 1, 1984.
Discussion
Your question points up an anomaly which was evidently
not considered by Congress in the development of the 1977
Clean Water Act. A BAT guideline for a specific industrial
category might be promulgated in March, 1979. The effluent
limitations for those pollutants on the list of 65
(301(b)(2)(C)), for BCT (30l(b)(2)(E)), and for non—
conventional pollutants (301(b)(2)(F)) could be achieved as
late as July 1, 1984; but those effluent limitations for
pollutants which were added to the 307(a) list would have
to be achieved by March, 1982. j/
In Section 307(a)(2) Congress required that the
Administrator establish effluent limitations for all toxic
pollutants on the original list of 65 no later than July 1,
1980, thus allowing in all cases a maximum of at least four
years rather than three for achieving such effluent limita-
tions.
4/ Of course, there is nothing in the Act to prevent the
permit writer from requiring compliance with all the effluent
limitations by March, 1982.
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Nonetheless, despite this apparent anomaly, it seems
clear that the Agency lacks the authority to extend the
three—year deadline. The statutory language is clear on its
face, and the legislative history is equally clear:
For all other toxic pollutants compli-
ance must be achieved no later than 3 years
after the limitation is established. (Con-
ference Report at p. 82.)
In his floor statement, Congressman Roberts on behalf of
the House Managers stated that:
With respect to chemicals thus added
to the list, the Administrator is required
to promulgate regulations as soon as
practicable, industry compliance is
required within 3 years in the case of BAT
effluent guidelines . .. [ Cong. Rec.
December 15, 1977 at H12927]. 5/
5/ Senator Muskie’s floor statement is more ambiguous:
For all other toxic pollutants, compli-
ance must be achieved no later than 3 years
after the limitation is established. For
all pollutants other than toxic pollutants
or conventional pollutants, compliance with
effluent limitations requiring best avail-
able technology must be achieved not later
than 3 years after the limitation is
established or not later than July 1, 1984,
whichever is later, but in no case later
than July 1, 1987.
The earliest date for which compliance
is required is the same as the date for
compliance with the requirements of
sections 301(b)(2)(C) and CE); that is, not
later than July 1, 1984. (Cong. Rec. Dec. 15,
1977 at Sl9648].
It is unclear whether the Senator is suggesting that
July 1, 1984 is the earliest date for all pollutants, or
merely for the unconventional pollutants.
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To the extent that this anomaly creates administrative
difficulties, the effluent guidelines for pollutants added to
the 307(a) list could be promulgated so that they are not
establjshe& until July 1, 1981. Thus a BAT regulation for
a particular category or class could be promulgated in March
of 1979, but the regulation could state explictly that the
effluent limitations for 301(b)(l)(D) pollutants do not
become established and effective until July 1, 1981. j/
BAT permits issued prior to July 1, 1981 could contain efflu-
ent limitations based on the 301(b)(l)(D) regulations with
the proviso that such limitations do not become part of the
permit until July 1, 1981. Similarly, permits could contain
pre—guidelines 301(b)(1)(D) limitations with the proviso
that such limitations do not become established until July 1,
1981. The discharger would be required to challenge such
effluent limitations at the time of final Agency action on
the permit, rather than at the time of the July 1, 1981
atuomatic modification. We would be pleased to assist you
and the Office of Water Planning and Standards in develop-
ing standard language for effluent guidelines and permits
to accomplish such results.
Heat
Question 1
Should “heat (the thermal component of a discharge),
be treated as a fourth pollutant category, in addition to
the toxic, conventional, and nonconventional categories?
Answer
Beat may not be classified as a Nfourth category so as
to render it ineligible for S301(c) variances.
Discussion
On its face, S301(c) applies to any BAT limitation for
any point source. The only exception in the statute is
6/ Judicial review would of course be available within 90
days after upromulgatingu. See 5509(b). Promulgation would
occur on the date of publication, in the Federal Register, and
the effective date would be the date limitations are
“established” under S301(b)(1)(D).
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S301(l), which excludes S307 toxics. Especially in light
of the specific exclusion of heat from S30l(g), there is no
support in the statute for excluding it from S301(c).
The legislative history you have cited does not call in-
to question the clear provisions of the statute. The first
excerpt states in part that heat is excluded from •the cate-
gory of non—conventional pollutants. This appears to be
nothing more than a recognition that thermal discharges are
not eligible for S301(g) variances.
The second quote states that the conferees did not want
to provide “additional waiver opportunities for heat which
were not in the 1972 Act. This again appears to be nothing
more than a reflection of heat’s exclusion from the new
S301(g) variance scheme. Beat was eligible for S301(c)
under the 1972 Act; continuing to recognize its eligibility
now does not provide an additional waiver opportunity.
In short, we simply cannot construe legislative history
which is at best ambiguous to supply an exclusion from
S301(c) which would be totally at odds with the words of the
statute.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN . . 6 1 78
THE ADMINISTRATOR
MEMORANDUM
: Assistant Administrator for Enforcement (EN—329)
Deputy Assistant Administrator for
Water Enforcement (EN—335)
Regional Administrators
Regional Counsels
Regional Enforcement Directors
SUBJECT: Lx Parte Contacts in NPDES Adjudicatory Rearing
Decisions
This memorandum sets forth limitations on contacts among
those EPA employees who are involved in preparing and issuing
initial and final NPDES decisions of the Regional Administrator
or the Administrator, and other Agency staff and persons out-
side EPA. Effective immediately, these requirements apply to
all EPA employees involved in NPDES proceedings.
Several courts have now held that the hearing required
by Section 402(a) of the Clean Water Act must be “on the re-
cord,” triggering the formal adjudication requirements of the
Administrative Procedure Act. Seacoast Anti—Pollution League
v. Costle , No. 77—1284 (1st Cir. Feb. 15, 1978); United States
Steel Corp . v. Train , 556 F.2d 822 (7th Cir. 1977); Marathon
Oil Co . v. EPA , 564 F.2d 1253 (9th Cir. 1977). Among these
requirements is that embodied in the Government in the Sunshine
Act, Pub. L.94—409, 90 Stat. 1241 (Sept. 13, 1976), prohibiting
EPA decision—makers in formal APA hearings from engaging in
parte discussions of the merits with “interested persons out-
side the agency.’ 5 U.S.C. 5557(d). The APA also requires that
no one involved in ‘investigative or prosecuting functions” may
‘participate or advise in the decision, recommended decision,
or agency review . . .. ‘ 5 U.S.C. S554(d).
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2
It is not clear that Agency enforcement staff involved
in NPDES adjudicatory hearings are performing “investigative
or prosecuting functions.” However, EPA should adopt a
policy that not only complies with the law, but avoids even
the appearance of unfairness. Accordingly, I am setting out
the following requirements.
When these Requirements Apply
Consistent with the Sunshine Act, all the requirements
in this memorandum are applicable from the date public notice
of an evidentiary hearing is published under 40 C.P.R. Sl25.
36(c)(4), until the date of final Agency action on the permit
application.
Requirements Applicable to Regional Administrators and their
Assistants
Regional Administrators and staff members selected to
assist them in writing an NPDES decision will refrain from ex
parte discussions of the merits of the proceeding with any T —
berested person outside the Agency. They should also refrain
from any such discussions with the Assistant Administratoffor
Enforcement or his staff, and the Regional Enforcement Director
and his staff.
The term “interested person outside the agency” appears
in the Sunshine Act, and refers generally to anyone who has a
stake in the outcome of the proceedings greater than a member
of the general public. The term includes, for instance, all
parties to the hearing and their competitors, public officials
(including elected representatives such as mayors, Senators,
and Congressmen), environmental and other interest groups, and
companies, organizations or associations with some special in-
terest in the issues (for example, the Chamber of Commerce or
industry trade associations).
The Water Quality Division of the Office of General Counsel
has been assigned to be available to assist me, the Deputy Ad-
ministrator, or any judicial officer in preparing final de-
cisions in NPDES proceedings. Accordingly, the Regional Admin-
istrator and his staff, and Regional enforcement staff, may not
discuss the merits of the case with an attorney in that Division.
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3
However, to avoid total isolation of the Regional Administra-
tor and his staff from assistance, one or two attorneys in the
Water Quality Division will be designated by the Associate
General Counsel for Water to serve as Special Counsel to ad-
vise them in preparing decisions. Such attorneys may not ad-
vise me or my staff in NPDES decisions. Currently, Barry
Malter (FTS 755—0760) and Nancy Othmer (FTS 755—0433) are
serving in that capacity.
Administrator and his Staff
The Administrator (and the Deputy Administrator, when she
is Acting Administrator for the purpose of making a final de-
cision on an NPDES appeal), and any judicial officer assigned
to assist us in preparing an NPDES decision, will, like Regional
Administrators, refrain from ex parte discussions of the merits
of the proceeding with all “interested persons outside the Agency,u
and Enforcement staff. We will, where necessary, call upon other
Agency personnel, including the General Counsel and her staff,
excluding any attorneys designated as Special Counsel to assist
Regional Administrators.
Procedures in case of Departure from these Requirements
Occasionally these requirements may be abrogated through
inadvertence. Or, if a Congressman or Senator requests a
briefing on a pending matter ( see 5 U.S.C. §557(d)(2)), dis-
cussions otherwise proscribed by this memorandum may be unavoid-
able. In any case where such a discussion occurs, the substance
of the discussion must be promptly reduced to writing, and a
copy served upon all parties to the proceeding.
I have asked the Assistant Administrator for Enforcement
and the General Counsel to review applicable NPDES regulations
to see to what extent incorporatio of these procedures would be
appropriate.
(r,,y Douglas M. Costle
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.?IV Sz,,
V
___ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL 1 2 1978
OFFICE OF ENFORCEMENT
MEMORANDUM:
TO : Regional Administrators
Directors, Approved NPDES State Programs
FROM : Assistant Administrator
for Enforcement (EN—329)
SUBJECT: Policies for Reissuing Industrial
NPDES Permits
On May 16, 1978 the Administrator sent a memorandum to
you entitled “Reissuing NPDES Permits to Sources Affected by
the NRDC Consent Agreement.” He indicated in that memorandum
that policies and guidance would soon be supplied to aid in the
reissuance of the next round of industrial NPDES permits.
These policies and guidance have been completed and are
enclosed for your use.
These second round permit policies are specifically
designed to achieve the 1984 requirement of the 1977 Clean
Water Act in the most orderly manner possible. They
represent the product of extensive consultation between my
staff and the regional and state personnel who will be
responsible for carrying them out. Many of our draft views
and recommendations were altered as a result of our discussions
with you, and I believe that the resulting policies will
provide a sound framework for issuing the next round of
NPDES permits.
The attached document is designed to compliment the
forthcoming revisions to the NPDES permit program regulations
at 40 CFR Parts 122 through 125, and to be consistent with
the recent NPDES regulations published at 43 Federal Register
22160 (May 23, 1978). A summary of the prior policies
superceded by these second round permit policies appears in
Appendix E to the attached policy document, and several
relevant opinions recently prepared by the Office of General
Counsel of EPA appear in Appendix G.
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—2—
Since the second round permits policies and guidance
are complex, my staff will be available at your request
to meet with you and your staffs to more fully explain the
subject. To make such meetings more productive, I suggest
that states which desire such a meeting should first contact
the appropriate EPA regional office and arrange a combined
meeting.
If you desire a meeting with my staff, or if any
problems arise in applying the attached policies, please
call Mr. Jeffrey G. Miller, Deputy Assistant Administrator
for Water Enforcement (202) 755—0440. \
4.
Marvin B. Durning
Attachment
cc: Regional Enforcement Division Directors
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SECOND ROUND PERMITS POLICY
June 1978
TABLE OF CONTENTS
Page
I. Executive Summary 1
II. Background 8
A. Existing Policy 8
B. 1977 Amendments to the FWPCA 11
III. Discussion 17
V. Procedures for Reissuing Permits 20
A. Sources in Primary Industries Prior 22
to the Promulgation of New BAT
Guidelines for Toxic Pollutants
B. Sources in Primary Industries After 26
the Promulgation of New BAT Guide-
lines for Toxic Pollutants
C. Sources in Secondary Industries 28
V. Establishing Effluent Limitations 35
in Reissued Permits
A. BPT, BAT, and BCT Limits 35
B. Making Best Engineering Judgements in 43
the Absence of Effluent Guidelines
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—2—
VI. Setting Dates for Achieving
BAT and BCT Limits
VII. Questions or Requests for
Further Guidance
46
49
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
uReopener Clause for Permits Issued to
Sources in Primary Industries
Schedules for Primary Industries
1. Promulgation of New BAT Guidelines
2. Expiration Dates for Short Term
Permits
List of Toxic Pollutants
List of Conventional Pollutants
Prior Policies Superseded
Section 73 of the Clean Water Act
Opinions of the Office of General
Counsel
(A copy of this policy may be requestedi
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___ UNITED smras ENVIRONMENTAL PROTFe rION AGENCY
WASHIr1GTON.•D.C. 204G0
AUG .41977
Tilt ADMIMtSTRATDR
-
SUBJECT: “Ex Part e!’ Contacts in EPA Rulemaking
FP.OM: The Administrator
TO: Addressees
In this memorandum I set forth the guidelines l1 EPA
employees should follow In discussing the merits of proposed
rules with interested persons outside the Agency during the
period between proposal and promulgation. The Deputy Administrator
and I and our inr ediate staffs will also observe these guidelines.
The Gene al Counsel has recently informed that such
conversations might result in a rule being held illegal if they
took place without notice and opportunity for other interested
persons to participate. That advice was based on a recent decision
of the United States Court of Appeals for the District of Columbia
Circuit. Home Box Office Inc. v. FCC , 0. C. Cir. f o. 75—1280
(decided March 25, 1977). A subsequent opinion by the same court
has moderated that legal danger substantially. ftction for Childrens’
Television v. FCC , D. C. Cir. tb. 74-2005 (decided July ‘1, 1977).
Rowever, the legal danger has not disappeared. More fundamentally,
I do not believe .that EPA should base or appear to berse its regulatory
d cisi ns on. information or arguments presented informally that do not
appear on the public record. Accordingly, I am estao1ish ng the following
guidelines.
Behavior during crucial period between Proposal and Promulgation
.•
During the period between proposal and promulgation of a .rule all
emplgyees ay arid should be encoura ed to respond to inquiries about
the rule explain how it would work, and attend public meetings of
interested groups (such as trade association conventions).
During this period agency employees may (and often should) hold
meetings with interested persons for the purpose of b2tter under standiñg
any technical scientific and engineering issues involved or discussing
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the broader questions involved. In fl cases, hot eve,’, a written
Su rniary of the significant Points made at the mecttn s must be placed
in the coi nent file.
This requirement applies to every for, of with outside
interested persons whether at.a trade association meeting, at EPA,•or
Over the. telephone as long as the discussion is sinflifjcant The
memorandum should be prepared and forwarded within tt•,o or three da s
of the meeting at the latest. All new data or Signjfjca, t argu e
presented at the meeting should be reflected in the r ie orandum
Discus5j 0 of generalities or Simple explanations of ho the rule
would work need not be included.
I will continue to explore with the General Counsel’s office and
others whether further actions to ensure that we provide fufl notice
ahd Opportunity for con ent in all our procedures are nø -
ADDRESSEE (p
Deputy. Administrator
Assistant Administrators
Deputy Assistant Administrators £
Office Directors
•Regiona l Administrators
Associate General Counsels
Regional Counsels
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____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 1 1378
MEMORANDUM OFFICE OF ENFORCEMENT
TO: Enforcement Division Directors, Regions 1 - X
NPDES State Directors
Water Division Directors, Regions I - X
FROM: Deputy Assistant Administrator for Water Enforcement (EN—335)
Deputy Assistant Administrator for Water Program
Operations (WH-546)
SUBJECT: Suspended Solids Effluent Limitations for Publicly Owned
Wastewater Treatment Ponds Followed by Other Treatment
El ements
BACKGROUND
The final rule regarding suspended solids limitations for publicly
owned wastewater treatment ponds was published in the Federal Register
on October 7, 1977. This amendment to the Secondary Treatment Regulation
(40 CFR 133) provided for a case—by—case adjustment of the suspended
solids effluent limitations when a wastewater treatment pond Is the
sole secondary treatment process.
Region IV has raised the question, °May the suspended solids
effluent limitation be adjusted for a wastewater treatment pond system
that Includes additional elein nts, suct as a filter r microstrainer?N
ISSUE
It Is understood that the more specific question is, “May a
wastewater treatment pond system that includes additional elements,
such as a filter or mlcrostralner, be allowed a suspended solids
effluent limitation that exceeds 30 mg/l?
DISCUSSION
Where an existing wastewater treatment pond is currently unable
to achieve the BOD effluent limitation of 30 mg/l and the most cost-
effective method of achieving compliance Is to install additional unit
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2
processes, (e.g., microstrajners, pressure filters, rock filters,
etc.), it is permissible to adjust the suspended solids limitation to
permit values which may be greater than 30 mg/i. There Is very little
data available to indicate the suspended solids effluent value that may
be expected. However, the effluent should contain less suspended
solids than the adjusted suspended solids limits established under 40
CFR l 3 3.103(c) for ponds which are not followed by additional treatment
elements.
When sufficient operation data has been accumulated, it may be
necessary to establish a suspended solids effluent limitation for this
subcategory of wastewater treatment ponds. This value may be derived
by analyzing the performance data to determine the suspended solids in
the effluent from systems that are concurrently achieving a BUD value
of 30 mg/i of less. The only data that may be used for this analysis
is that taken during periods when all elements of the system are func—
tionin at design capacity.
Since the question of suspended solids adjustments for a wastewater
treatment pond system of the type described above was not addressed
during the development or coment period for the amendment to the
regulation, ft was not included In the criteria that a Regional Adminis-
trator or State Director may use to establish an adjusted value.
The possibility of subcategories was recognized and addressed in the
memorandum dated February 16, 1978, which provided guidance for imple-
menting the amendment. The purpose of the amendment was to assure the
Continued availability of a cost-effective treatment process for
small municipalities. If additional treatment elements will accomplish
this, then in the interest of obtaining greater environmental benefits,
wastew.ter treatment pond systems, followed by additiona treatment
elements, may be allowed an adjustment of the suspended solids limitation.
POLICY
Wastewater treatment pond systems that include additional elements
such as filters or mlcrostrajners may be considered for an adjustment of
the suspended solids effluent limitation on a case-by-case basis,
provided:
1. An adjusted suspended solids limitation has been established
for waste stabilization ponds within the geographical area.
The adjusted value must be determined according to the guide-
lines set out in 40 CFR l33.103(c).
2. Adjusted suspended solids effluent limitations cannot exceed
those established pursuant to 40 CFR l33.103(c) for ponds
which are not followed by additional treatment elements.
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3
3. Suspended solids effluent limitations for an existing wastewater
treatment pond system with existing additional elements Imist be
either: 1) the values established pursuant to 40 CFR 133.103(c),
or 2) the actual operation value, whichever is the lesser.
4. Where added unit processes to existing ponds, are planned, an
estimate Is made of the suspended solids limitation that can
reasonably be expected with the additional units.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 6 1978
O FI t or
G P4fRA . COUNtS.
MEMORANDUM -
TO: Jeffrey G. Miller
Deputy Assistant Administrator
for Water Enforcement (EN-335)
FROM: James A. Rogers
Associate Generá Counsel
Water and Solid waste Division (A-131)
SUBJECT: Innovative Technology Extensions Under 5301(k)
of Clean Water Act; Effect of 55301(j) and (1)
This is in response to the two Clean Water Act questions
raised in your memorandum of July 14, 1978.
Ouestion *1
Is an innovative technology extension under section
301(k) available for toxic pollutants in view of the language
of section 301(1)?
Answer #1
Yes.
Discussion *1
Under section 301(k), a facility may obtain an extension
until mid-1987 to meet best available technology (“BAT”)
limitations if the facility will use an innovative tech-
nology which has the potential for industry-wide applica-
tion. The language of 5301(k) does not exclude toxic BAT
limitations from consideration. Section 301(1), however,
provides that EPA “may not modify any requirement of this
section” with respect to toxic pollutants.
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2
The basic question is whether a BAT compliance date
extension for a toxic pollutant under 5301(k) would con-
stitute a modification of a 5301 requirement as prohibited
by 5301(1). A cursory reading of 55301(k) and (1) provides
no easy answer. In our view, however, the language of 5301
and the legislative history indicate that the 5301(1)
prohibition does not apply to §301(k).
Section 301(k) states that EPA may “establish a date
for compliance ” for a facility “which proposes to comply ”
with BAT. In contrast, SS3O1(c) and (g) (economic capa-
bility and water quality waivers from BAT) state that EPA
may “ modify the requirements of [ BAT]”. Because section
301(1) uses the phrase “modify any requirement,” it is
reasonable to link it to 55301(c) and (g) but not 5301(k).
-This makes sense not only semantically, but a.so
practically. Under a §301(k) extension, BAT (or even more
stringent limits*) must in all events be met. Under §5301(c)
and (g) modifications, facilities may be relieved of BAT
limitations altogether.
This construction of the statutory language accom-
modates two important Congressional concerns. It maximizes
the opportunities for innovative technology extensions, but
assures that the substantive BAT limits for toxic pollutants
will not be relaxed for any facility.
The legislative history tends to confirm our construc-
t. .on of the statutory 1ai age. Reprl2sentative Ro ierts,
Chairman of the House conferees, made the following state-
xnents about the Conference Bill:
(N]ew subsection 301(k) provides
that the Administrator . . . may estab-
lish an extension of the July 1, 1984
requirements to no later than July 1,
1987 for [ BAT] for pollutants identified
in subparagraphs (C), (D), and (F) of
Section 301 .
197 Cong. Reg. H12932, December 15,
1977 (emphasis added).
* Two of the three grounds on which §301(k) extensions may
be based require “significantly greater” effluent reduction
than normal BAT limits.
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3
Due to the nature of toxic pollutants,
those identified for regulation will not
be subject to waivers from or modifica-
tion of the requirements prescribed under
this section, specifically, neither
section 301(c) waivers based on the
economic capability of the discharger
nor 301(g) waivers based on water
quality considerations shall be avail-
able.
197 Cong. Rec. H12927, Dec. 15, 1977.
The first quote clearly indicates that BAT toxic
limitations (which are covered under §301(b) (2) (C)) qualify
for §301(k) extensions. The second quote indicates that the
“waivers” anv “modifications” which Congress sought to
preclude through §301(1) were the SS301(c) and Ig) waivers
and modifications, not the S301(k) extension.
Question #2
Must an applicant for an extension for innovative
technology under Section 301(k) apply within 270 days from
the promulgation of an effluent guideline in accordance with
Section 301(j) (1) (B)?
Answer #2
No.
Discussion #2
The 270-day deadline of §301(j) (1) (9) governs modifica-
tions of “the provisions of subsection (b) (2) (A) as it
applies to pollutants identified in subsection (b)(2)(F).”
It should be noted that S301(k extensions for toxic p 01-
lutants, the focus of your first question, are not even
potentially subject to the 270—day deadline. This is
because 5301(j) (1) (B) by its terms applies only to §301(b)
(2) (F) pollutants (“grey list” or “non-toxic/non—conventional”
pollutants).
The question remains whether §301(k) extensions for
“grey list” pollutants are subject to the 270—day deadline.
Under a careful reading of the statute, they are not.
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4
The §301(j) (1) (B) deadline Covers applications for
“modification of the provisions of subsection (b) (2) (A) .“
An extension under §301(k) is not a modification of the
provisions of (b) (2) (A).
This is because (b) (2) (A) does not contain any dates;
it only contains the substantive requirements for BAT.
Section 301(b) (2) (F) is the provision which set dates for
BAT compliance. As pointed out in Discussion #1 above,
§301(k) can only extend the date for BAT compliance; it
cannot relieve a facility from BAT compliance.
ifad §301(j) (1) (B) referred to “a modification of the
provisions of subsection (b) (2) (A) and (b) (2) (F),” it would
have been possible to apply the 270-day deadline to §301(k)
extensions for “grey list” pollutants. As the statute is
written, it is not possible to do so.
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:
UNITED STATES ENVIRON MENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
SEP 81978
gi nal inis ators n -
Regional for nt Div 4 n Directors
State Directors
Deputy Assistant inistator for Office of Water f or
( - 335)
Giid e to States on Assessing 4i ±ir Abilities
to a State ?retea nt Progr ar Preparing
er 10, 1978, St1 4 -eion to
The general pret’ea nt regu1at cn (10 C7R Part 403) governing
tbe oc o1 of it us ’ial stes intrcduced into ?i 1Ic1y ! ed eat-
nt Wo s s ulgated by A an J x e 26? 1978. e of tha keystones
of the ir us ja1 ste c U. 4 set forth Fhj reguJ ti n
is tbe State e ea nt The regulation r iires that an
2 S State s’ it to ‘A by tober 10, 1978, an of
sting abj1jtj to 4 ’ 1 ent a State etea nt The
L a d guidance is intended to s ride assistance to States in
deve1 ing h4 tober 10 si* tssion.
3ackr
Section 403.10 of the eteat nt r u1ation elaborates on the State
p eeatoent re nsibi.ljties reguired by section 54(c) (2)
of the Clean Water Act of 1977. In general, NPCES States are required
to deve1 autborities, pro twes and resources to iersee the o ration
of local pre eaent which will be the primary me 4 n
for applying and enforcing Federal pre eateent standards for indus ia1
users. In eddis4 , States will be r iired to apply and ‘ f ’rce
pre eaf!n nt directly against indu ia1 users ethers a local
has not been devel ed.
The regulation allows States 6 to 18 nonths in which to ify the
exist .ng WCSS if necessary, to devel autborities, procedures and
resources to 4 1 nent the State res nsibi1ities explained in the regulation.
Where a Stat& s existing autborities can be used to 4 ’ 1 nent certain pre eat’-
nt reçuirecents, the State must begin to exercise these autborities. In
order to dete njne which e ea PJ t res r 1 sibj] .jtjes a State is presently
caFable of carrying cut, section 403.10(b) of the regulation r ui:es that
‘ste State sn n t to A by tcber 10, 1978, a stat nent identifvthc t se
th rities, procedures and resources which presently can be devoted to
_a pl tenting the State pretreaent pr r n; and tk se authorities, procedures
and resources which the State will acquire, through a u ification of the
State D!S in order to 1 nent fully the State require ents
b ied in the pre eatnent regulation.
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2
State Submission
The October 10 submi ssion, although general In natire, serves o
purposes. First, It will assist the State and EPA In identifying
those pretrea ient activities which the State should begin to Implement.
Second, the information In this submission provides EPA and the State
with early notice o f changes which usast be made in the State NPDES
program in order to develop an approvable program by the regulatory
deadline of March 27, 1979 (or March 27, 1980, 1? legislative changes
are required).
The enclosed documents are intended to provi de gui dance on developing
the assessment of existing State capabilities due to EPA by October 10.
o Document A suggests a format for use by the State Attorn
General (or Independent counsel of the State water pollution
control agency, where appropriate) in certifying to the State’s
existing authori to implement the State pretrea ent requirements
outlined in the regulation.
o Document B elaborates on the authorities set forth in Document A
and should be helpful In developing a State Attorney General’s
Pretrea nt Statement similar to the one proposed in Document
A. Attached to Document B is the model Attorney General ‘s
Statement which may have been used by States In developing their
application for NPDES program approval. it should provide an
indication to States of those authorities which have already
been certified to in the application for NPDES program approval.
o Document C provi des gui dance on assessing exi sting State procedures
and resources in light of regulatory requirement.
These guidance documents suggest the format, scope and detail of
information which should be provided to EPA. The State may, however,
submit information in whatever format and detail is best suited to
demonstrate the State’ s cxl sti ng abi 11 ty to carry out a pretreathient
program. This Information should be submitted to the EPA Regional
Enforcement Division Director by October 10, 1978. If you have any
questions on the preparation of the submission, please contact the EPA
Regional Enforcement Division Director or Nancy Kutzel, Permits
Division (202/755-0750).
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3
We encourage NPDES States to provide an accurate and thorough analysis
of existing abilities at this early stage. By so doing, we all can help
to ensure the timely devel opment of effective State pretrea ent
programs which will contribute to the successful imp ernentation of the
national pretreathient effort.
Attachments
cc: Regional Permits Branch Chiefs
Miller
(A copy of the guidance may be requested)
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r
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\, / WASHINGTON. D.C. 20460
SEP 1 2 19
MEMORANDUM occic O ENFORCEMENT
r
TO: Regional Enforcement Division Directors
NPDES State Directors
FROM: Deputy Assistant Administrator for Water Enforcement (EN-335)
SL JECT: Variance Applications
The Administrator has signed regulations Implementing section
301(j)(l)(B) of the Clean Water Act, time requirements for receiving a
section 301(c) or 301(g) modIfication (Attachment A).
The enclosed regulation explains who Is eligible and what Is
required. Essentially, industrial dischargers subject to proimilgated
effluent guidelines for best available technolo requirements, must
apply to the Environmental Protection Agency by September 25, 1978, or
270 days after promulgation of the guideline, whichever Is later.
Industries in 17 categories have the September 25, 1978, deadlIne.
Regulations governing the procedures and criteria for granting economic
(3Ol(c)) and water quality (301(g)) modifications will not be promulgated
by the statutory deadline for submission of applications for such
variances. As a result this regulation Is needed so that indus-
tries approaching the statutory deadline can protect their rights to a
modification. The initial application needs only the name of the
pennittee, the permit and outfall number and whether the application is
for a section 301(c) or 301(g) modification or both.
Unlike other types of modifications, the Clean Water Act does not
enable the States to grant these modifications. However, for the
States information, the regulation states that copies of applications
should be sent to the NPDES State Directors.
Presently EPA intends to process the modification requests during
permit reissuance. Despite the statutory requirement that applications
be submitted 270 days after the promulgation of the applicable effluent
guideline, EPA expects to require from the discharger the substantive
information to support the modification during the public coment
period for the draft permit. It would make little sense to require
substantial information In a request for a modification under these
sections now, when historical economic data or biological informa-
tion would be outdated at the time the permit limitation would be
Imposed.
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2
Although States cannot grant modifications, the statute calls
for 301(g) determinations to be made with the concurrence of the
State. The State certification (section 401) and State authority
(section 510) provisIons of the Clean Water Act also serve to Involve
the State in the section 301 Cc) determinations. Therefore, we will
soon be sending you draft copies of the 301(c) and (9) regulations for
coninent.
Because we anticipated a late date for publication of the
301 (J)(l)(B) regulations, I sent a letter on August 15, 1978, to trade
associations in the 17 categories that have the September 25, 1978,
deadline. That letter (Attachment B), notified them of what the
regulation would contain.
In addition, we will mall several thousand letters to industries
that might also be eligible (Attachment C). Included with that letter
will be a post card that can simply be mailed back to the appropriate
EPA. Regional office. This mailing will be p’imarily to Industries In
non—NPDES States due to limited centralized information on addresses of
NPDES State pennittees. NPDES States may wish to assure coverage of
all industries In the 17 categories, and for that reason a supply of
post cards Is enclosed with this memo to NPDES State Directors.
Several industries have already applied directly to EPA in Washington.
We will send copies of those applications to the appropriate Regions
and State Directors. Similarly, many 301(j)(1)(B) applicants may send
applications only to State Dl rectors. We ask the Di rectors to please
forward them to the Regional Enforcement Division Director. We will
consider applications received by State Directors by the deadline date
as receipt by EPA.
It should be noted that the statute only allows modification for
non—conventional pollutants. On July 28; 1978, the Agency proposed
that oil and grease, phosphorus and COD be placed on the list of
conventional pollutants. If that proposal becomes final, those pollu-
tants will no longer be In the non-conventional category and the number
of dlschargers eligible for a variance will decrease sharply.
In addition, certain pollutants that are now considered
non—conventional may be placed on the toxics list.
Because the substantive criteria for 301(c) and (9) have not yet
been promulgated, the preamble to the 301(j)(1)(B) regulation states
that EPA will mail copies of the 301(c) and (9) regulations to those
who complied with 301(j)(l)(B). To facilitate mailing those regulations
we ask the Regions to maintain an up—to-date listing of 301(j)(1)(B)
applicants.
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3
The listing should include the pollutants indicated in the variance
request to enable deletion of those applicants that become Ineligible
because of a re—classification of pollutants.
If you have any questions, please contact Scott Slesinger, Perurfts
Division (telephone 202—755-0750).
I
Jeffrey G. Miller
Attachments
cc: Regional Permit Branch Chiefs
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tV
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHIN(3TON. D.C. 20460
AUG 151978
OFFICE OF ENFORCEMENT
The Envi xnnantal Protection Agency is stheduled to issue interim
final regulations concerning applications for variances. The reguir ents
will directly a.f fact a large nLnnber of your nethers. Because saie
dischargers must apply by Sept nber 25, 1978, I thought this pre-pranulgation
notice would give you an portunity to advise your i nbers of what the
.\gericy expects to require.
The Act alloQs variances fran best available technology econanically
achievable based on the econanic cor iticns of the partio.ilar facility
[ section 301(c) of the Clean Water Act] or based on the ladC of environ—
mental necessity of the specified limitations [ section 301(g)]. Variances
are all ied only fran limitations on non-conventional pollutants. The Act
also requires applicants to apply by Septer er 25, 1978, if an applicable
effluent guideline was pranulgated before the enactnent of the Clean
Water Act [ section 301 ) (1) (B)]. The enclosed list identifies each
partia.ilar ir ustriai. subcategory eligible for a variance that must
canply with Septanber 25, 1978, statutory deadline.
Dischargers who interd to apply for a variance nni t notify the
Regional Office ar the Director of the State prog n in States that
issue NPDES permits. The information we need is s zp1y to identify the
discharger ar the variance requested. Hence we need the discharger’s:
(1) N ;
(2) present peit m.unber;
(3) outfall nus ber;
(4) effluent guideline subject to the request; ar
(5) whether the discharger is applying for a 301(c)
or 301(g) variance or both.
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2
The regulations de iir the evidence that will be needed to
justify a variance have not been pranu]gated. Dischargers will not
have to su nit any doo.mentatjon in sup rt of a variance before
those regulations are in force.
If you have any questions, please ntact Scott Slesinger of
my sta.ff (202-755-0750). Once the interim regulation is ready for
publication will ser you a c y.
S incerely,, 5 7
Miner
puty Assistant ôninis ator
for Water for nt
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OP71 OF £NFORc MDIT
NPDES Permit Holder:
of wastewater will be eligible for
Water Act requirements. You may be
The enclosed regulation explains who is eligible and what Is
required. Section 301(j)(1)(B) of the Clean Water Act requires that
I ndustri al di schargers subject to prainul gated effi uent gui del I nes for
,best available technology requirements must apply to the Envirormiental
Protection Agency (EPA) by September 25, 1978, or 27Q days after
promulgation of the guideline, whichever is later, to be eligible
for a modification of control requirements.
allows modifications from best available technology
achievable based on the econcm c conditions of the rarti:ular
based on the lack of envirormiental necessity of the specified
Variances are available only from limitations on non—
pollutants (see Appendix A to the regulation).
Industrial dischargers subject to the September 25, 1978, deadlIne
that wish to apply must do so by contacting the appropriate EPA Regional
office (office addresses are enclosed). At this time, the only Infonna—
ti on needed is your name, your permit and outfall numbers, the applicable
effluent guideline and the type of variance requested. For your
convenience we have enclosed a post card which can be completed and
returned to the appropriate EPA Regional office.
.?1O P4p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP12 1978
- Some Industrial dlschargers
modifications from certain Clean
one of those dischargers.
The Act
economical ly
facility or
limitation.
conventional
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2
The regulations detailing the evidence that will be needed
to justify a variance have not yet been promulgated. Those submitting
a request for a variance will be sent a copy of the substantive require-’
ments for a variance once they are published.
If you have any questions about these requirenents or this letter,
please contact the appropriate EPA Regional office or Scott Slesinger,
Envirornnental Protection Agency, Permits Division (EN-336), 401 M
Street, SW, Washington, DC 20460 (telephone 202-755—0750).
Sincerely,
/J ffre. G. Miller
Depu ’ Asslitant Administrator
for Water Enforcement
-
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____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I / WASHINGTON. D.C. 20460
“L p iuØt
SEP12 1978 .
o,,I 0
MEMORANDUM Wd *I. GOUN*L.
I1-• - /
SUBJECT: Applicability of Section 301(h) and Ci)
Modifications to Federal Facilities
FROM : James A. Rogers, Associate Genera1
Counsel for Water & Solid Waste (Aj131)
TO : Lloyd A. Reed, Director
Enforcement Division
Ra ion X
In your memorandum of June 15, 1978, you requested that
we provide legal opinions on three questions concerning the
status of Federal facilities under . the Clean Water Act.
QUESTIONS
1. Can Federal facilities holding NPDES permits qualify
for §301(h) waivers of secondary treatment for marine
d ischarges?
2. Can Federal facilities qualify for §301(i) extensions?
3. Are treatment plants at Federal facilities “publicly
owned treatment works” within the meaning of SS3O1(h)
and 301(i)?
ANSWER
Wastewater treatment plants at Federal facilities are
not “publicly owned treatment works” within the meaning of
S301(h) and 301(i), and therefore operators of those facili-
ties cannot qualify for modifications under SS3O1(h) and
301(i) (1)
DISCUSSION
Sections 301(h) and 301(i) were included in the Clean
water Act as part of the 1977 Amendments. Section 301(h)
provides for issuance of permits to “publicly owned treat-
ment works” (POTW’s) modifying the requirements of S301(b)
(l)(B) with respect to discharges into marine waters. Section
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—2—
i0l(i)(l) provides for modification of permits for POTW’
extending dates for compliance with SS3O1(b) (1.) (B) and
(b)(1)(c) of the Act. Section 301(i)(2) provides for modi-
fication of permits for point sources which discharge into
POTW’s (qualifying under S301(i)(l)) allowing an extension
of time for compliance with SS3O1(b)(l)(A) and (b)(l)(C).
Sections 301(h) and 30l(i)(l) are applicable only to
POTW’s. A review of the Act reveals that Congress intended
to exclude federally owned treatment works from being classi-
fied as POTW’s. Moreover, while the Clean Water Act does not
specifically define POTW’s, the Agency has defined POTW’s
in its regulations so as to exclude federally owned treat-
ment works from being classified as POTW’s.
The legislative history of S301 indicates that Congress
considered the term POTW as synonymous with “municipali—
t s ” or “communities.” Congress refeired repeatedly to
“municipal treatment works” and the requirements of “com-
munities” under S301(b) (1) (3) to meet secondary treatment
standards,1/ Similarly, while S307• of the Act sets pre-
treatment standards for limiting discharges into POTW’s, the
legislative history reveals that Congress used the term POTW
interchangably with “municipal treatment plant” and “municipal
vlaste treatment systems.”2/ The municipal character of POTW’s
is further evidenced in the legislative history of the 1977
Amendments to S402(h) of the Act. Section 402(h) authorizes
the States or EPA to enjoin further industrial connections
to a POTW where a POTW has violated its permit. This new
provision amending S402(h) was entitled “Enforcement of
Z 1unicipal Permits” in the . enate and Conference F eports .3,
In rulemaking actions, EPA has followed the legis-
lative history and excluded Federal facilities from POTW
definitions. The recently published anended pretreatment
regulations defined POTW’s in part as follows:
1/ Legislative History of the Water Pollution Control Act
Amendments of 1972 (Legislative History], pp. 843, 1259, 1426,
1460—61.
2/ Legislative History, pp. 800, 1479.
3/ Report of the Committee on Environment and Public Works,
U.S. Senate, july 19, 1977, p. 74; Conference Report, December
7, 1977, p. 37.
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-3—
5403.3(m) The term Publicly Owned Treat-
ment Works” or “POTW” means a treatment
works as defined by section 212 of the Act,
which is owned by a State or municipality
(as defined by section 502(4) of the Act).
43 Fed. Req . 27736, 27747 ( 7une 26, 1978).
The Agency’s position on Federal facilities is also
set forth in the preamble to amendments of the secondary
treatment regulations. In that preamble, which was referred
to in the a.ttach ent to your memorandum, the Agency stated:
It is clear that section 304(d) (1) of the FWPCA
requires promulgation of standards directly
applicable to publicly owned treatment works
only and therefore 40 CFR 133 is not directly
applicable to private or Federal wastewater
treatment ponds.
42 Fed. Req . 54664 (October 7, 1977)
Because they are not “POTW’s”, as that term is used
in the Act, Federal facilities are ineligible for waivers
or extensions under §5301(h) or 301(i). Even if Federal
facilities could be considered to be POTW’s they would
clearly not qualify for extensions under S301(i)(1). Sec-
tion 301(i)(1) provides an extension of time for meeting
the requirements of SS3Ol(b)(l)(B) and 301(b)(1)(C) “when
_he United Etates has failed to ma}-e financial assista ice
under this Act available.”4/ This provision could not apply
to Federal facilities since such facilities are not eligible
for financial assistance under the.Act. Section 20l(g)(2).
While Federal facility NPDES perinittees may not qualify
for extensions under § 5301(h) or 301(i) (1), they may qualify
for extensions under §301(i) (2) of the Act. Section 3Ol(i)(2
is a plicab1e to all “point sources (other than publicly owned
treatment works).” If a Federal facility NPDES permittee comes
within the definition of “point source” in §502(14) of the Act,
then that pern ittee, like any other point source, may seek a
permit modification under the provisions of §301(i)(2).
4/ The “financial assistance” referred to in §30l(i)(l) is
the seventy—five percent funding made available under 5201(g)(l)
in the construction grants program.
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I
a
UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY “ - - -
\1•dI; r WASHINGTON. D.C. 20460 -
‘!s
NOV t 81978
occict OF ENFORCEMENT
MEMORANDUM
TO: Regional Enforcement Division Directors
FROM: Deputy Assistant Administrator for Water Enforcement (EN-335)
SUBJECT: Transfer of Authority Over Federal Facil ities to NPDES
States - GUIDANCE MDIORANDIII
INTRODUCTION
-On March 10, 1978, the General Counsel and the Assistant Administrator
for Enforcement jointly issued a policy guidance memorandum entitled
“State Regulation of Federal Facilities Under the Federal Water Pollution
Control Act Amendments of 1972 (Clean Water Act) (copy attached - Tab A).
This memorandum requires that all NPDES States assume program responsibility
over the Federal facilities within their jurisdictional boundaries.
To date four NPDES States have assumed this responsibility, and the
process to transfer tJPDES authority over Federal facilities is under way
‘In several other States. The purpose of this memorandum Is to establish
a uniform method for processing these transfers of authority. While the
March 10 memorandum sets maximum time limits for accomplishing this
transfer, it is my hope that It will be done as expeditio’isly as possible.
RECOFi 4EhiDED PROCESSING STEPS
A. Initial Contact with State
A letter should be sent to each of the NPDES State Directors In
your Region reminding them of the requirement that they assume NPDES
program responsibility over Federal facil ities and asking that this be
done expeditiously. This letter should request an Attorney General’s
statement as to whether the State has adequate authority to implement
all NPDES program responsibilities over Federal facilities (i.e.,
permitting, monitoring, inspections, etc.). It can be very helpful to
the State for EPA to conduct an Independent analysis of these legal
issues and to include a sun nary of this analysis in your letter.
However, an EPA analysis of State authorities cannot serve as a substitute
for an Attorney General ‘s statement.
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2
Prior to sending the letter, the Memorandum of Agreement (MOA)
between EPA and the State should be reviewed to determine whether it
should be modified. If the MDA restricts the State’s authority over
Federal facilities In any way It must be changed. The letter sent
to the State should specify whether the MOA needs to be modified. If a
modi fication is necessary, a proposed document (see attached example -
Tab B) should also be included.
B. No Modification to MDA Necessary
If no modi fi cation to the I’WA is necessary to transfer authority
over Federal fec f l Itles to the State and the Attorney General ‘s Statement
indicates that the State has the adequate legal authority, proceed as
follows. An Action Memorandum (see attached sample - Tab C) should be
sent from the Regional Administrator to the Assistant Administrator
fcr. Enforcement recommending that the State’s assumption of Federal
facilities authority be approved. This action memorandum should
include the following attactinents: a copy of the State Attorney General’s
opinion, copies of correspondence with the State Director, a copy
of the letter originally sent by the Administrator approving the State’s
NPDES program, a draft letter fran the Assistant Administrator for
Enforcement approving the transfer of authority (sample attached - Tab D),
and any other relevant documents (e.g., a memorandum from Regional
Counsel evaluating the State’s legal authority).
This package will then be sent to the Deputy Assistant Administrator
for Water Enforcement for concurrence and, If everything is In order,
sent to the Assistant Administrator for Enforcement for a decision
n approval. (The aut ority to approve State NPDES program modifications
for Federal facilities coverage has been delegated to the Assistant
Administrator for Enforcement.) The transfer of authority takes effect
when the approval letter is signed and transmitted by the Assistant
Administrator.
C. Modification to the MOA is Necessary
When It is necessary to modify the MOA to transfer Federal facilities
coverage to a State the following additional steps should be taken.
After receiving the favorable Attorney General’s statement and reaching
agreement on the MOA modification, public notice (sample attached - Tab E)
snould be issued and an opportunity to comment provided. The public
notice should be mailed to all Interested people (both from EPA’s and
the State’s mailing lists) and should be published in the largest
newspapers In the State. It should provide a 30-day comment period and
indicate that a hearing will be held if sufficient Interest Is expressed.
After the close of the public comment period or after a hearing,
if one is held, an Action Memorandum should be prepared as described
above Dut with the following additional attachments: a copy of the
public notice, a copy of all comments received or a summary of the
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3
comments, and three originally signed copies of the document modifying
the MOA. If any other modifications to the MOA are included the
Assistant Administrator cannot approve the package and the Action
Memorandum should be sent to the Administrator (With a concurrence
block for the Assistant Administrator for Enforcement). In this case
the Action Memorandum should also Include a discussion of the other
proposed MOA changes.
This package should be forwarded to Headquarters and will be
processed as described above.
D. If State Indicates it Lacks Authority
If the State Attorney General Indicates a lack of authority over
Federal facilities, the State is required to correct this deficiency
within time limits to be established in forthcoming revised NPDES
regulations. The specific legal problem should be Identified and a
letter sent to the State advising it of the need to correct the deficiency.
Please coordinate the preparation of any such letter with my office.
Li kewi se, if the State is reluctant or uncooperative the Region should
keep this office infonned. If you have any questions or need additional
information please contact David Schnapf (755—0750) of the Permits
Division.
Miller
ta nents
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOV 2 9 1378
MEMORANDUM
TO: Regional Administrators w/o attachments
Regional Water Division Directors
Regional Enforcement Division Directors
FROM: Deputy Assistant Administrator for Water Programs Operations
(WH-546)
Deputy Assistant Administrator for Water Enforcement (EN-335)
SUBJECT: Coordi nation Brtween Regional Enforcement and Water Programs
Fersonnel in Implementing the National Pretreatment Program
Thà general pretreatment regulation (40 CFR Part 403) promulgated
or . une 26, 1978, requires that certain publicly owned treatment works
(P T 1s) develop pretreatment programs to control the introduction of
industrial wastes into POIWs. The -successful implementation of these
pretreatment programs requires a careful integration of Regional
Enforcement Division efforts in overviewing the creation of such
programs and Construction Grants efforts in providing funding for the
development of these programs. The purpose of this memorandum is to
outline the respective roles of these bio groups with regard to the
initial stages of POT’.4 petreatment program development. The recom—
merdations in this memorandum reflect the proposals for coordinating
Enforcement and Construction Grants activities found In the Interim
National Municipal Policy and Strate 9 y , October, 1978, and the latter
oocument should be read in concert with this memorandum.
Identification of POTWs Reouired to Develop a Program
The pretreatment regulation specifies that two groups of PONs
should be required to develop a pretreatment program (see section
403.8). First, all POTWs with an average design flow greater than
5 million gallons per day (mgd) and receiving industrial wastes which
1) pass through the PON untreated, 2) interfere with the operation of
the POTW or, 3) are otherwise subject to pretreatment standards
developed under section 307 of the Clean Water Act are required to
develop a program. In addition, the Regional Administrator or Director
of the State 1WDES program nay require that PONs with an average
design flow of 5 mgd or less develop a pretreatment program if their
industrial influent meets any of the three criteria listed above.
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2
A computer print-out of all PONs In each Region broken down by
majors and minors is attached to this memorandum. The Reg1on l
Enforcement Division should take the lead in developing from the
attachea computer print-out: 1) a list of those PONs (both above and
below 5 mgd) in non—NPDES States which should develop a pretrea neT%t
program and, 2) a list of those PONs above 5 mgd In NPDES States which
must be required to develop a program. The Regional Water Division
must assist in this effort and provide such necessary Information as
Is available in the Water Division files. Attachment A suggests means
by which the Regional office can Identify these PONs.
In compiling the non—NPDES State list, the Regional office should
check the appropriate boxes next to the P01W name on the computer
print-out. Copies of this print-out should then be forwarded to the
Permits and Municipal Construction Divisions at Headquarters. A copy
of this print-out should also be maintained by both the Enforcement and
Water Divisions in the Regional office and both Divisions should be
consulted on any changes to the list.
The NPDES State list should be sent to HPDES States to assist them
in Identifying appropriate PO1Ws. NPDES States will be responsible for
adding to the Regional list those PONs with flows of 5 mgd and less
which will be subject to the program development requirement. Once the
NPDES State has developed a list of all POTW5 within its jurisdiction
which will be required to implement pretreatment programs, It should
forward this list to the Grants and Enforcement personnel in the Regional
office who will, In turn, send this Information on to Headquarters.
Lists of those POTWs in both NPDES and non—NPDES States which will
be requi red to develop a program shoul d be sent to the Headquarters
Permits and Municipal Construction Divisions no later than January 15,
1979. The cover memorandum transmitting the completed lists shouli be
signed jointly by the Directors of the Regional Water and Enforcement
Divisions. These lists will eventually be Incorporated Into the Permit
Compliance System (PCS) which will provide a convenient mechanism for
tracking and updating progress in developing P01W pretreatment programs.
Application for Construction Grants Amendment
Once the lists of PONs requl red to develop a pretreatment program
have been compiled, the Construction Grants staff should notify the
appropriate POTWs in NPDES and non-NPDES States of the need to apply for
an amendment to their existing Step 1, 2 or 3 grant in order to acquire
funding for the development of a pretreatment program (see Construction
Grants regulation 40 CFR 35.907). Concurrent notice of POVvI 5 which
should apply for grant amendments should be sent to Grant personnel In
NPDES and non—WPDES States so that the States may plan future funding
requirements. Existing construction grants should be amended no later
than June 30, 1979, to provide pretreatment program funding.
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3
As individual POIWs apply for and are awarded an amendment to
their construction grant for pretreatment program Impi ementatTion,
this information should be conveyed to Regional Enforcement personnel.
As will be seen in the subsequent discussion, timing of the construc—
ti on grants award can have an impact on the devel opment of the
pretreatment compi lance schedul e Incorporated into the PON’ s NPDES
permit.
Reissuance of Permits to Include Pretreatment Requirements
The pretreatment regul atlon requires that NPDES permits for POTWs
which are requi red to develop a PON pretreatment program incorporate a
compl lance schedule for the development of such a program (see 40 CFR
403.8(d)). This compliance schedule should be incorporated into the
POTW’s permit upon reissuance at the end of the existing permit term or
at the time the permit is modified or reissued to grant a section
301(i)(1) time extension or a section 301(h) modification of secondary
treatment requirements. In addition, a PON’s NPDES permit may be
modi fied in mid-term to incorporate a schedule for the development of a
POTW pretreatment program where the operation of a POTW wi thout a
pretreatment program poses significant public health, enviromiental or
rel ated concerns, or where a pretreatment program compl iance schedul e
must be developed to coordinate with construction grant awards. A
detailed explanation of the development and application of pretreatment
compliance schedules will be found in Attacl’inent B along with a model
compi lance schedule.
The pretreatment strategy envisions the type of close coordination
between Enforcement and Construction Grants staffs outlined in the
Interim National Municipal Policy and Strategy for developing these
ccimpl iance scheiul es. Both the Construction Grants regiji ation (40 CFR
35.907, 35.920—3) and the pretreatment regulation (40 CFR 403.8) impose
time limitations on the various activities to be undertaken in the
pretreatment compl lance schedul e. The pretreatment compl lance schedule
incorporated into a POTPI’ s NPDES permit should contain milestones
derived from the grants process. As the discussion In Attactinent B
indicates, in order to develop a compliance schedule which meets both
the pretreatment and Construction Grants regulatory requirements, the
Enforcement staff must coordinate with Construction Grants staff in
determining the current grant status of the permittee and the schedule
for receipt of future grant funding.
Enforcement of POTW Pretreatment Programs
The preceding discussion of coordination between Construction
Grants and Enforcement in developing POTW pretreatment programs should
not be understood to imply that availablity of funding is a prerequisite
to the development of a pretreat ent program. The requirement to
develop a pretreatment program should be enforced and not dependent on
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4
Federal funds. The development of pretreatnent programs is critical;
it L the main tool to address toxic discharges from POW’s. The costs
of d2veloplng such programs are not capital costs and they, can be
recovered from users of the municipal system In most cases. In
bal ancing these considerations, the Agency’s policy is to enforce
requirements for municipal Ities to develop pretreatl%eflt programs
without dependence Ofl Federal funding.
This policy applies equally to funding the operation of municipal
pretreatnent programs once they are developed and running. They are
expected to be self-supporting. A user charge system may be used for
this purpose.
If you have any questions on the Implementation of this coordination
effort or its relation to the Interim National Municipal Policy and
Strategy , please feel free to contact Nancy Hutzel or Shanna Halpern
(8—755—0750) in the Permits Division or Ron DeCesare (8426—8945)
in the Municipal Construction Division.
(John T. hett
Attachments
cc: Regional S&A Division Directors
NE IC
11 er
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ATTACHMENT A
Procedures to Identify POTWs Which Will be Required to Develop
P01W Pretreatment Programs
The permit-issuance authority (Regional office or NPDES State) must
have the ability to determine which of its municipal permittees will
be required to cievelop a POTW pretreatment program. As section 403.8(a)
of the pretreatment regulation explains, POIW5 required to develop a
program will include those POTWs with a design flow over 5 mgd receiving
from industrial users wastes which:
o pass through the P01W untreated
o interfere with the operation of the treatment works
o are subject to pretreatment standards developed under the authority
of section 307(b) or (C) of the CWA.
In determining which POTWs are above 5 mgd, the permit—issuance authority
should look at average design flow. In addition, if one permittee
controls several treatment works, the cumulative flow of the treatment
works should be considered in calculating average design flow. For
example, one Regional Authority controlling 3 treatment works with
average design flows of 3, 2 andl.5 mgd respectively would be viewed,
for the purposes of the pretreatment regulation, as a single operation
with an average design flow greater than 5 mgo.
-A recommended first step in determining which POTWs over 5 mgd fall
within the 3 categories listed above would be to determine which POTWs
receive wastes from one or more industries within tne 21 industrial
categories listed in the NRDC Consent Decree (for reprinting of Consent
Decree see The Environmental Reporter—Cases , 8 ERC 2120). EPA antici-
pates that categorical pretreatment standards under section 307(b)
and Cc) will be developed for almost all industrial subcategories
within the 21 IndustrIal categories listed in the NRDC Consent Decree.
A possible approach to detecting these sources would be to examine
industrial inventories such as the Dun and Bradstreet Market Identifiers ,
the Directory of Chemical Producers , published by tne Stanford Research
Institute, and the State inoustrial directories to determine which of
the listed sources are within the State or Region ano discharging into
PONs.
A second step in identifying POTWs required to develop a P01W pretreat-
ment program might be to look at those POTtrl s which are not meeting their
NPDES permit conditions. Such permittees would be likely candidates
for a pretreatment program aimed at controlling pollutants which
interfere with the operation of or pass-tnrough the P01W.
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ID E WTIFYI?IG
PONs
2
Section 403.8(a) of the pretreatitent regulation also gives the permit-
issuance authority the ability to require the development of a pre—
treetment program by PONs with average design flows of 5 mgd or less.
it is recommended that the permit—Issuance authority require the
development of a program wherever the P01W meets one of the 3 crIteria
outlined earlier. The permit—issuance authority is strongly urged to
exercise its option to extend the requirement to develop a pretreaUnent
program as broadly as possible.
The burden of proof for demonstrating that a program is not neided
shoul d rest on the POTW. Where there Is some doubt that a certain POTW
has industrial influent subject to pretreatment requirements. the P0T I
can be allowed to show that it need not develop a program. in such
cases, a clause should be inserted in the municipal permit along with
the compliance schedule for the development of a pretreatment program.
This clause would state that if the Industrial waste inventory required
by the compliance schedule demonstrates that the P01W has no contribution
of industrial wastes which would be subject to pretreatment requirements,
the POTW woul d not be requi red to conti nue development of the program.
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AUACKMENT B
GUIDANCE ON PREPARING COMPLIANCE SCHEDULES FOR
DEVELOPING POTW PRETREATMENT PROGRAMS-
GENERAL COMMENTS :
Section 403.8(d) of the general pretreatment regulatIon (40 CFR
part 403) requires that NPDES permits for POTWs which are required to
develop a PON pretreatment program Incorporate a compi lance schedule
for the development of such a program. In some cases, this ccmpl lance
schedule will be incorporated Into affected POTW permit upon reissuance
at the end of Its existing term.
in many cases, however, the compliance schedule will be.lncorporated.
into the POTW permit in mid-term through a permit modification. It Is
anticipated that in many Instances this pretreatment compliance schedule
wil..l be Inserted into the NPDES permit for applicable POTWs when the
permit is modified or reissued in mid—term in connection with a 301(l)(1)
determi nation (i.e., the detenni nation as to whether or not the schedul e
for development of secondary treatment should be extended under the
provisions of section 30l(i)(1) of the Act, see 40 CFR 124.104).
Similarly, a POT l which is required to develop a pretreatment program
will have a pretreatment compi lance schedule inserted in its NPDES
permit if that permit Is modified or reissued in order to grant
a waiver of secondary treatment requirements under the provisions of
section 301(h) of the Act. (See proposed 40 CFR Part 233.) in addition,
a PON permit will be modified in mid—term to Incorporate a schedule
for the development of a PON pretreatment program, where the operation
of a PON without a pretreatment program poses significant public
health, environmental or related concerns, or where a pretreatment
proçram compliance schedule must be developed to coordinate with
construction grant awards.
The compliance schedule will require that the permittee develop
the authorities, procedures and resources, as defined by 40 CFR 403.8
and 403.12, which comprise an approvable P01W pretreatment program.
The activities listed In the attached model compliance schedule summarize
the more detailed requirements found In sections 403.8 and 403.12 of
the pretreatment regulation. It is recommended that the permit—issuance
authority review the more detailed requirements set forth in the
regulation before developing the pretreatment compliance schedule, and
Insert additional schedule activities where appropriate.
There are several time limitations imposed by the pretreatment
regulation and the construction grant regulation (40 CFR part 35)
which should be considered in establishing compliance schedule dates.
The pretreatment regulation provides that the compliance schedule will
require the development and approval of a P0114 pretreatment program as
soon as reasonable and within 3 years after the schedule is incorporated
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COMPLIANCE SCHEDULE
GUI DANCE
2
into a POTW’s permit but In no case later than July 1, 1983 (see §403.8).
Since up to 6 months must be allowed for the program approval process
according to section 403.11 of the pretreatment regulation, the compli-
ance schedule date for submission of a pretreatment program for approval
(activity 8 of the compliance schedule) should be 2-1/2 . ears from the
Incorporation of a compliance schedule or January 1, 1983 , whichever is
sooner.
Provisions of the construction grants regulations impose what may
be In some cases stricter time constraints on the development of an
approvable program. For example, section 35.920-3 of the construc-
tion grants regulation provides that no grantee may receive a Step 3
grant after December 31, 1980, until It has developed an approvable
pretreatment program. Thus, a permittee which is scheduled to receive
a Step 3 construction grant in January 1981 will be required to develop
a-n approvable program at the outside by January 1981 . However, if that
sar. e pennittee received a compliance schedule for the development of a
pretreatment program In December 1978 It would be allowed, by the
pretreatment regulation, an outside date of June 1981 (i.e., 2-1/2
years froi the incorporation of the compliance schedule) to develop an
approvable program. In this case, the more stringent time limitation,
I.e., that posed by the construction grant regulation, would apply.
As the example above lndicites, In developing the schedule date
for the submission of an approvable pretreatment program, the permit-
Issuance authority must use that date prescribed by either the pretreat-
ment regulation or the construction grants regulation which provides the
shortest time for the development of the program. In addition, the
permit-Issuance authority may Impose reasonable time limitations which
are more restrictive.
DEVELOPMENT OF THE PRETREATMENT COMPLIANCE SCHEDULE
It is apparent from the general discussion above that several
different regulatory provisions Influence the development of the
schedule date for submitting a POTW pretreatment program for approval
(compliance schedule activity 8). Regulatory limitations on the time
frame for developing a program can be summarized as follows:
o approval within 3 years from the Incorporation of a
pretreatment compliance schedule in the municipal permit
(application for approval within 2-1/2 years). See 40 CFR
403.8.
o approval by July 1, 1983 (application for approval by
January 1, 1983). See 40 CFR 403.8.
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COMPLIANCE SCHEDILE
GUIDANCE
3
o approval prior to payment of grants beyond 90% of the Step 3
funding (application for approval 6 months before this date).
See 40 CFR 35.935-19.
o development of an approvable pretreatment program by the
end of the Step 2 grant for certain permittees. See 40
CFR 35.920—3.
o approval by whatever more stringent time limit is imposed
by the permit-issuance authority.
In addition, the construction grant regulation imposes an interim
time limitation on the development of compliance schedule activities
1-3. According to this regulation, grantees with amended Step 1 grants
must have completed activities 1-3 by the time of application for the
Step 2 grant if the Step 2 Is to be awarded after June 30, 1980.
Facilities required to develop a P01W pretreatment program can
generally be divided Into 4 groups depending upon the applicablity of
the time limitations discussed above. See attached Chart A.
GROUP 1 FacilIties which will have received Step 1 and 2 construction
grants or amendments before June 30, 1980, and a Step 3
construction grant before December 31, 1980.
If a grantee is scheduled to receive its Step 2 and 3 construction
grants before June 30, 1980 and December 31, 1980, respectively, the
construction grant regulation (40 CFR 35.935—19) requires that, In most
cases, the grantee have an approved POTW pretreatment program before it
receives the last 10% of its Step 3 grant funding. This means that the
grantee would be required to apply for P01W pretreatment program
approval at least 6 months before It is 5cheduled to receive payment
beyond 90% of its Step 3 funding.*
The pretreatment regulation (40 CFR 403.8(d)) provides that such a
grantee should request approval of the POW pretreatment program within
2-1/2 years from the Incorporation of a pretreatment compliance schedule
into Its NPDES•permlt or by January 1, 1983, whIchever is sooner.
In developing the compliance schedule for permittees in this
group, the perilt-issuance authority should determine which of the
above dates provides for the earliest development of a P01W pretreatment
program.. This date should then be used as the pretreatment compliance
schedule deadline for activity 8.
*As a 6 months period is needed to approve a POW pretreatment program,
in order to receive approval of a program by the date upon which the
grantee is scheduled to receive payment beyond 9O of its Step 3
funding, the application for approval must be submitted 6 months
earlier.
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COMPLIANCE SCHEDULE
GUIDANCE
4
bates for the remaining compliance schedule activities are
negotiable with the permittee. Generally, however, the deadlines
for completing actIvities 1—3 should not exceed 15 months from the
initiation of the compliance schedule.
Facilities receiving their Step 3 grant before June30, 1980,
shall be subject to the same time limitations described above.
GROUP 2 Facilt ties which will have received Step 1 and 2 constructIon
grants before June 30, 1980, and a Step 3 construction grant
after December 31, 1980.
The construction grant regulation provides that a grantee which is
scheduled to receive a Step 3 grant after December 31, 1980, must have
completed compliance schedule activities 1-7 before It can receive Its
Step 3 funding. Therefore, in developing the compliance schedule, the
permit—issuance authority should use as an outside compliance date for
activities 1-7 the date for completion of the Step 2 grant as determined
by-the construction grants compliance schedule as long as this date would
riot be later than 2—1/2 years from the initiation of the pretreatnent
compliance schedule or Janurary 1, 1983, whichever is sooner.
The compliance date for pretreatnent compliance schedule activity
8 (request for program approval) should not exceed 2—1/2 years from the
initiation of the compliance schedule, January 1, 1983, or 6 months
before the perinittee is scheduled to receive payment beyond 90% of Its
Step 3 fundIng, whichever is sooner.
Again, the interim pretreat ent compliance schedule dates are
negotiable. It is recommended that the completion date for activities
1-3 not exceed 15 months from the initiation of the compliance schedule.
GROLP 3 Facilities which will receive a Step 2 construction grant after
June 30, 1980, and a Step 3 construction grant before December 31,
1980.
L der to the construction grant regulation, In order to receive a
Step 2 grant after June 30, 1980, a grantee must first have completed
activities 1 —3 of the pretreatnent compliance schedul e. The permi t—
issuance authority should therefore ensure that the compliance schedule.
dates for the completion of activities 1-3 do not exceed the scheduled
øate for the completion of the Step 1 grant activities. The permit-
issuance authority may at its discretion impose a more stringent time
limitation for the completion of these activities. It is recommended
that the completion date for activities .1-3 not exceed 15 months from
the initiation of the compliance schedule.
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C 1PLIANCE SCHEDULE
GUIDANCE
5
The construction grant regulation provides that grantees which
will receive a Step 3 grant before December 31, 1980, must have an
approved pretreatment program in order to receive the final lOS of the
Step 3 grant funds. The final compliance date for activity 8 of the
pretreatjnent compliance schedule therefore should be no later than
6 months* before the date upon which the grantee is scheduled to
receive payment beyond 905 of the Step 3 grant funding unless this date
exceeds 2—1/2 years from the initiation of the compliance schedule, or
January 1, 1983, in which case the final date for activity 8 should be
no later than January 1, 1983, or 2—1/2 years from the initiation of
the compliance schedule, whichever is sooner.
The interim dates for activities 4—7 are negotiable with the
perini ttee.
GROUP 4 Facilities which will receive a Step 2 constructiongrant
after June 30, 1980, and a Step 3 construction grant after
December 31, 1980.
The construction grant regulation provides that in order to
receive a Step 2 grant after June 30, 1980, a grantee must first have
completed activIties 1-3 of the pretreatment compliance schedule. The
permit issuance authority should therefore ensure that the compliance
schedule dates for the completion of activities 1-3 do not exceed the
schedule date for the Step 2 grant application. The permit—issuance
authority may impose a more stringent time limitation for the completion
of these activities. It Is reconvnended that the completion date for
activities 1—3 not exceed 15 months from the initiation of the compliance
schedul e.
In order to receive a Step 3 grant after December 31, 1980, a
facility in this category must also have completed comçllance schedule
activi ties 4—7. The final compliance dates for activities 4—7 should
therefore be no later than the completion date for the facilities
Step 2grant as determined by the construction grants schedule. If the
scheduled completion date for the Step 2 construction grant activities
Is later than 2—1/2 years from the initatiori of the compliance schedule
or January 1, 1983, then the final compliance date for activities 4-7
should not exceed January 1, 1983, or 2—1/2 years from the initiation
of the compliance schedule, whichever Is sooner.
In establishing the pretreatment compliance schedule dates for
activities 4—7, sufficient time must be allowed for the grantee to
accomplish activity 8 (applIcation for program approval) by January 1,
1983, 2-1/2 years from the initiation of the pretreatment compliance
schedule, or 6 months before the permittee is scheduled to receive
payment beyond 905 of its Step 3 funding*, whichever Is sooner.
See footnote , page 3
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MODEL PRETREAThENT COMPt LANCE SCHEDULE LANGUAGE
Under the authority of section 307(b) and 402(b)(8) of;the Clean
Water Act, and implementing regulations (40 CFR 403), the permittee is
required to develcp a pretreatment program. This program shall enable
the permittee to detect and enforce against violations of categorical
pretreatment standards promulgated under section 307(b) and Cc) of the
Clean Water Act and prohibitive discharge standards as set forth In
40 CFR 403.5.
The schedule of compliance for the development of this pretreatment
program Is as follows. The permittee shall:
ACTIVITY
NO. ACTIVITY DATE
1 Submit the results of an industrial user sur-
vey as required by 40 CFR 403.8(f)(2)(i-l1l),
including identification of Industrial users
and the character and volume of pollutants
contributed to the PON by the Industrial
users.
2 Submit an evaluation of the legal authorities
to be used by the- permittee to apply and
enforce the requirements of sections 307(b)
and (c) and 402(b)(8) of the Clean Water Act,
including those requirements outlined In
40 CFR 403.8(f)(l).
3 Submit a determination of technical informa-
tion (Including specific requirements to
specify violations of the discharge prohi-
bitions in 403.5) necessary to develop an
Industrial waste ordinance or other means of
enforcing pretreatment standards.
4 Submit an evaluation of the financial
programs and revenue sources, as required by
40 CFR 403.8(f)(3), which will be employed
to implement the pretreatment program.
5 Submit design of a monitoring program which
will Implement the requirements of 40 CFR
403.8 and 4U3.12, and in particular those
requirements referenced in 40 CFR
403.8(f)(l )(iv—v), 403.8(f)(2)(iv—vi) and
403.12(h—j),(l—n).
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CHART
OU . E PRETREAThENT COMPLIANCE DATES BASED ON CON . ,TION GRANT AWARDS AND PRETREAThENT REQUIRF 4ENTS
2—1/2 YEARS FROM IFITIATION OF
COMPLIANCE SCHEDULI., JANUARY 31,
1983, OR 6 MoNTH !; BEFORE THE
FINAL 102 OF STEP 3 GRANT
JUNE 30, 1980 DEC 1BER 31, 1980 WHICHEVER IS SOONER
I I
Stepi Step2 I Step3 I
Awarded Awarded I Awarded Activities 1—8 Due
2 Step 1 Step 2
Awarded Awarded I
I
Step 3 (Activities 1—7 \
Awarded due by epplica— J Activity 8 Due
tion for Step 3/ I
I
3 Step 1
Awarded
Step 2 (Activities 1—3 ‘ Step 31
Awarded( due by app1ica— Awarded
! tion for Step 2/
I
Activities 4—8 Due
I
là Step I
Awardcd
I .
tep 2 / Activities 1—3
Awarded due by applica—
tion for Step 2/
Step 3 fActivities 4—7 \
Awarded due by applica— J Activity 8 Due
tion for Step 3/ I
I
Interim dates are negotiable and are established by the permit—iseuance authority
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2
6 Submit list of monitoring equipment required _______
by the P01W to implement the pretreatment
program and a description of municipal
facilities to be constructed for monitoring
or analysis of industrial wastes.
7 Submit specific POTW effluent limitations _______
for prohibited pollutants (as defined by 40
CFR 403.5) contributed to the P01W by
Industrial users.
8 Submit a request for pretreatment program _______
approval (and removal credit approval, If
desired) as required by 40 CFR 403.9.
The terms and conditions of the P01W pretreatment program, when
approved, shall be enforceable automatically through the permittee’s
NPDES permit.
Quarterly Reporting
The permittee shall report to the permit-issuance authority on a
quarterly basis the status of work completed on the P01W pretreatment
program. Reporting periods shall end on the last day of the months of
March, June, September and December. The report shall be submitted to
the permit—issuance authority no later than the 28th day of the month
following each reporting period.
Removal Al 1 owances
A y application for authority to revise categorical pretreatment
standards to reflect P01W removal of pollutants In accordance with the
requirements of 40 CFR 403.7 must be submitted to the permit-issuance
authority at the time of application for P01W pretreatment program
approval or at the time of permit expiration and reissuance thereafter.
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DOCUMENT C
Explanation of Procedural /Fundi ng Requi re nents
for State Pretreatoent Programs
1. Procedures/Funding to Identify POTWs Which Will be Reoulred to
Devel o P01W Pretrea ent Programs
The State must have the ability to determine which of Its municipal
penni ttees will be required to devel op a P01W pretrea nent program.
As section 403.8(a) of the pretreateent regulation explains, PONs
required to develop a program will Include those PONs with a
design flow over 5 mgd receiving from Industrial users wastes
which:
o pass through the P01W untreated
o Jnterfere with the operation of the treatnent works
o are subject to preb’eatnent standards developed under the
authority of section 307(b) or (c) of the CWA.
In determining which POTWs are above 5 mgd, the State should look
at average design flow. In addition, If one permittee controls
several treatnent works, the cumulative flow of the treatnent works
should be considered in calculating average design flow. For
example, one Regional Authority controlling 3 treatnerit works with
average design flows of 3, 2 and 2 mgd respectively would be
‘viewed, for the purposes of the pretreatnent regulation, as a
single operation with an average design flow greater than 5 mgd.
A recommended first step In determining which PONs over 5 mgd
shoul d be requl red to devel op a pretrea nent program woul d be to
determine which POTWs receive wastes from one or more Industries
within the 21 Industrial categories listed In the NRDC Consent
Decree (for reprinting of Consent Decree see The Envi ronmental
Reporter-Cases , 8 ERC 2120). EPA anticipates that categorical pretreabnent
standaros under section 307(b) and Cc) will be developed for almost
all Industrial subcategories within the 21 industrial categories
listed in the NRDC Consent Decree. A possible approach to detecting
these sources would be to examine Industrial inventories such
as the Dunn and Bradstreet Market Indicator and the Directory of
Chemical Producers , published by the Stanford Research institute,
to determine wnich of the listed sources are within the State and
discharging into PONs.
A second step in identifying PO7Ws required to develop a P07W
pretreatnent program might be to look at those POTWs which are not
meeting their permit conditions. Such permittees would be likely
candidates for a pretreatnent program aimed at controlling pollutants
which interfere with the operation of the P07W.
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2
section 403.8(a) of the pretrea nent regulat1on also gives the
State authority to require the devel opment of a pretreabflent
program by POTWs with average design flows of S mgd or less. It Is
recommended that the 5ta require the devel opment of a program
wherever the P01W receives industrial wastes from sources in one
or more of the 21 Industrial categories 1 Isted In the NRDC Consent
Decree, is not meeting Its permit conditions or where municipal
sludge Is not meeting applicable requirements. The State is
strongly urged to exercise its option to extend the requirement to
develop pretrea ent program as broadly as possible. The burden of
proof for demonstrating that a program Is not needed shoul d rest on
the POW. Where there Is some doubt that a certain P01W has
Industrial influent subject to pretrea ent requ1remen , the P01W
cart be allowed to show that it need not develop a program. In such
cases, a clause can be inserted in the municipal permit along with
the compliance schedule for the devel opment of a pretreat ent
program. This clause would state that If the Industrial waste
I nven ory requi red by the compi lance schedul e demonstrates that the
POTW has no significant contribution of industrial wastes which
would be subject to pretrea ent requirements, the POW would not
be required to continue devel opment of the program.
In brief narrative form, the State should explain those procedures
it has currently devel oped for identi rig POTWs above and bel ow 5
mgd required to develop a pretreabnent program. The narrative
shoul d be accompanied by a statement of the resources currently
devoted to this undertaking. If a program to Identify appropriate
POTWs Is planned for the future, the State should indicate what
approaches to Identifying POTWS will be used and what criteria will
be applied n identifying the pollutants ar.d industrj s subject to
pretrea nent requirements. The State shoul d al so describe briefly
its planned procedures for providing technical and legal assistance
to PONs where help is needed In developing a P01W pretrea nent
program.
2. rocedures/Fundjng to Notify POIWs of Pretreabnent Reaufrements
The State should indicate those procedures it has developed to
notify POWs of applicable pretrea ne t requirements as set forth
In 40 CFR 403.8(2)(jji). This may consist of a mailing system for
distributing information such as copies of the pretrea nent regula-
tion and any guidance on developing a POW pretrea nent program
prepared by the State or EPA. Any such distribution system should
be coordinated with similar information networks employed by State
personnel In charge of EPA Construction grants.
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3. Procedures/Fundina to Incoroorate Pretrea nent Recuirements in Munlcjoa )
Permits —
Where States currently have the authority to revoke and reissue or
modify municipal permits to incorporate an approved pretreateent
program or a compliance schedule for developing such a program,
(see Attorney General’s Pretrea ient statement sectIon 2) they will be required
to exercise this authority. Otherwise, a State must include a
modification clause In appropriate P01W permits which calls for the
incorporation of pretrea ent requirements at a later date. The
State should Indicate to EPA the priorities it will use for Incorporat . .
ing pretrea ent requirements Into P01W permits and an estimate
of the additional resources, If any, which will be required to
carry out this task. For example, the State should Indicate to the
best of its ability:
o the number of municipal permits which will Incorporate pretreateent-
requl reinents at the same time as they are revoked and rd ssued
or modified for the purpose of meeting the provisions of 301(1)
or 301(h) of the Clean Water Act;
o the number of expiring municipal permits not receIving 301(1) or
301 (h) modifications which will incorporate pretreateent conditions
upon reissuance
o the number of municipal permits to be revoked and reissued or
modified to include an approved pretreateent program or a
compl lance schedul e for devel opi ng such a program
4. Procedures/Funding to Make Determinations on Requests for P01W
Pretrea nent Program Approval and Removal Allowances
The State must have the procedures and funding to receive and make
determinations on requests for P01W pretreatoent program and
removal allowance approval. In general this responsibility will
require that the State have procedures and funding to:
o comply with the public notice provisions of section 403.ll(b)(l)
of the regulation which requires the State to:
1. mail notices of the request for approval to adjoining
States whose waters may be affected;
2. mail notices of the request to appropriate area—wide planning
agencies (Section 208 of the CWA) and other persons or organiza-
tions with an interest in the request for program approval or
removal allowance;
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4
3. publish a notice of the request In the largest daily newspapers
of the municipality in which the P01W requesting program
or renoval allowance approval Is located. These notices
shall indicate that a Comment period will be provided for
interested parties to express their views on the request for
program approval or removal allowance.
o Provide a public hearing If requested by any affected or interested
party as provided for in section 403.ll(b)(2). Notice of such a
hearing will be published in the same newspapers where the
original notice of request for program or removal credit approval
appeared.
o Make a fInal determination on the request if EPA has not objected
in writing to the approval of the request during the comment
period. In making the final determination, the State should
take into consideration views expressed by interested parties
during the comment period and hearing, If held.
o Issue a public notice of the final deterint nation on the request.
Thi s notice shall be sent to all persons who submitted comments
and/or participated In the public hearing. In addition, the
notice will be published in the same newspapers as the original
notice of request for approval was published.
The State should indicate to EPA by October 10, its current ability
to carry out these responsibilities, focusing primarily on staffing
and funding availability. This assessment should be based on an
estimate of the number of POTWs which will be scheduled to receive
roiw pretrea ent program and removal allowance approval during the
remainder of the State’s budget year. The State should then
indicate the projected resource levels for P01 1 4 pretrea ent
program and removal allowance approval in each of the budget years
l97g 1g83 based on the estimated number of P0 1 W 5 requesting program
and removal allowance approval during each of these years. Finally,
the State should explain how ft can insure, to the best of Its
ability, that the funding required to carry out this activity will
be available each year.
5. ! roceduresfFunding for Identifyf no and Notifying Industrial
Users Suoject to Pretrea ent Reouiremen
The pretrea ent regulations provide that where a P01W is not
required to develop a P01W pretrea ent program, the State will
assume responsibility for icentifying industrial users of the P01W
which mignt be subject to pretrea nent standaras. The State may
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5
devise Its own methods for obtaining this information, including
requiring the P01W to identify the Industrial users in question.
Reference to the Dunn and Bradstreet and Directory of Chemical
Producers listings, as mentioned earlier, may provide a convenient
first step. In many cases this Information may already have been
provided by the P01W through part 4 of the municipal permit applica
tion form. Through whatever means It chooses, the State should
insure that all industrial users which fall within one or more of
the 21 Industrial categories listed In the URDC Consent Decree are
Identified. In addition, the State should identify as subject to
pretrea ient standards all industrial users which contribute
pollutants which interfere with the operation of the treabuent
works or pass through the P01W untreated.
Once the appropriate industrial users have been Identified, the
State must ensure that they are notified of all applicable existing
pretrea ent standards and of applicable pretrea ient standards
which might be forthcoming. Acceptable procedures would include
a mailing list for Industrial users or an arrangement with the P01W
requiring it to provide the requisite notice.
The State should indicate by October 10, whether it has presently
i ri operation effective procedures for Identifying and notifying
industrial users currently or potentially subject to pretrea nent
standards. If such procedures are not currently on line, If
for example, information supplied by part 4 of the municipal
application form Is not sufficiently detailed toprovide the
required information, the State should Indicate how it plans to
develop the ability to identify and notify appropriate industrial
users. The description of these procedures should be accompanied
by an assessment of resources needed to. Implement them, the current
availability of resources to meet this need and plans for obtaining
additional resources if required.
6. Procedures/Funding for Identifying the Character and Volume of
Pollutanta Contributed by Industrial Users to POTi4s
Section 403.lO(f)(2)(f) of the pretreabnent regulation provides
that where a P01W Is not required to develop a P01’ pretrea nent
program, the State will be required to carry out those procedures
which would otherwise have been the responsiblity of the PON. One
of these-responsjb 1f je is the Identification of the character
and volume of pollutants being contributed to the P01W by sources
subject to pretrea ient requirements (see 403.8(f)(2)(jj)).
Indusrial users subject to pretreathient requirements Include those
which are suoject to pretrea nerjt standards promulgated under
section 307(b) and (c) and/or, Contribute pollutants which interfere
with the operation of the P01W or which pass through the P01W
untreated. This responsibility is complicated by the fact that
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6
analytical and monitoring techniques are no: yet available to
provice a quantit.stjve analysis of the presence of many of the
pollutants in question. In recognition of this problem, EPA
recommends that States fol low the procedures outl irted below In
developing their inventory of Industrial waste contribution.
o The first step In the waste Inventory shoul d be a qualitative
analysis of pollutants being contributed by all Industrial
Sources within the system. The individual Industrial users
should be asked to provide Information on the type and approximate
quantity of pollutant* discharged by the facility. This information
should be derived entirely from knowledge of the facility’s
process and should not require any sampling at the source.
o Second , the State should review this qualitative information on
the pollutants being discharged Into the system and remove from
further consideration those pollutants which are not within the
129 pollutants to be regul ated with national pretrea ent
standards and/or which are known not to Interfere with the operation
of the POThI or pass through the POT untreated.
o Third , the State (or PON if the State so directs) will then
sample the Influent to the POW to determine which of the
pollutants remaining after step o appear In significant
concentrations In the infi uent to the POTd. In carrying out
this sampling, the State should use those sampling and analytical
techniques set forth in 40 CFR part 136. If a pollutant
appears at such a low concentration that It is highly unlikely
that it would have an adverse effect on the operation of the
POW, pass throuah untreated, or If the pollutant ioes not
appear at all In the Influent to the POTW, ft should be excluded
from further consideration.
o Fourth , the analysis In preceedlng steps has resulted in a list
of those pollutants contributed to the system which may affect
the operation of the POW or pass through the P01W untreated.
The next step Is to determine which industrial users have such
pollutants In their effluent.
o Fifth , those Industrial users Identified in step four will be
requi red to do sampling and analysis to quantify the amounts of
those pollutants being discharged by that source into the P01W.
If necessary, the State may then lmpcse u;on that Industrial
user an effluent limitation which wifl ensure that such pollutants
are aischarged at levels which will n t interfere witn the
operation of the treat ient works or ;ass through in unacceptaole
amounts.
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7
o Finally, as Federal pretreati ent standards for Industrial
subcategories are promulgated, the State will require that
I ndustri ii users bel ongi ng to those subcategories sampl e
and analyze their effluent to quantify the amount of pollutants
regul ated by the standard being di scharged by that industrial
user.
The above procedures can be characterized as a 2—part program.
Initially, prior to the development of sampling and analytical
techniques for many of the complex pollutants regulated within the
21 Industrial categories (and approximately 400 industrial subcate-
gories) set forth in the NRDC Consent Decree, the State will focus
on identifying and quantifying only those poflutants which Interfere
with the operation of the trea nent works. Then, as Federal
pretrea nent standards for the 129 pollutants In the 21 Industrial
categories muerge, along with recommended sampling and analytical
techniques for such pollutants, the State will be required to
elicit specific quantitative Information on the character and
vol ume of pollutants di scharged by I ndstri al users regul ated by
Federal standards.
POIWs which are required to develop a POW pretreateent program are
responsible for carrying out the industrial waste inventory in lieu
of the State (see 403.8(f)(1i) and step 2 of the municipal pretreat-
ment compliance schedule). The State should recommend that this
2—step program be used by such POIWs.
The State should indicate to EPA by October 10 its current ability
to carry out the industrial waste characterization program described
above. Particular attention should be paid to the availability of
resources to implament this survey, the technical ability of the
State to sample influent to PONs as required by step 3 above, and
the State’s technical ability to develop effluent limitations for
industrial users where necessary to control the introduction of
pollutants which Interfere with the operation of the POW. The
State should discuss those resources and technical abilities which
It will need to acquire to fully Impi ement the components of the
industrial waste Inventory described above.
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8
. Procedures/Fundjnc to Make Determinations On Recuests for Fundamental
Different Factor Variances
Section 403.13 of the pretrea nent regulation provides that States
will be responsible for considering requests for fundamentally
di fferent factors variances. Any Interested person believing that
factors relating to an Industrial user are fundamentally different
from the factors Considered during the development of a categorial
pretrea nent standard applicable to that user may apply for a
fundamentally different factors variance allowing a modification of
the discharge limit specified in that standard.
The State must have procedures to review such requests, and make a
determination to deny the request or reco end to EPA that the
request be approved. In making this determination, the State must
consider the factors outlined in 4 O3.13(c) and (d). The State
should submit to EPA by October 10, 1978, a discussion of its current
abf 1 ity to consider requests for fundamentally different factor
variances. Emphasis should be placed on current funding availability
and projected funding needs. In addition, the State should
Identify the existing or required technical expertise it will need
to evaluate the various factors listed in 4 03.l3( ) and Cd).
8. Procedures/Funding to Ensure Comolfance with Pretrea nent Standards
ano Permit COn ltl
Where a POTW I s not requl red to develop a P01W pretreatoent program,
the State will be required to ensure that Industrial users of that
P01W subject to pretreatnent standards comply with those standards.
In order to do so, the State must develop procedures which Include
the following:
o Where State law provides adequate authority, the State should
have the technical ability to review the technology which the
industry proposes to install in order to meet State or Federally
imposed pretreatoent standards,
o Once the compi lance date for a pretreathient standard has passed,
the State must have procedures to receive and analyze the report
submitted by the Industry, in compl lance with the requlrenen
of 403.12(d), indicating whether or not the industry has Complied
with applicable effluent limitations.
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9
o The Star.e must develop the administrative and technical ability
to receive and analyze the periodic reports submitted by industrial
users Indicating continued compl lance with pretreathent standards
(see 403.12(e)).
o The State must ensure that It has adequate resources and technical
experti se to deterini ne, I ndepenaent of reports submitted by
the industrial user, that the user is in compliance with applicable
pretreatoent standards. For example, the State should have
procedures for scheduling periodic checks on Industrial users
to spot-check compliance, sainpl I ng the effi uent at the industrial
sources and analyzing this effluent to ensure compliance, with
applicable limitations.
Where a P0T 1 pretrea ent program has been developed and the PON
has been granted a removal all owance for certain pollutants, the
State must have procedures to:
o receive and analyze periodic reports from the PON indicating
continued removal at the rate all owed by the P01W s permit and
conti nued compl lance wi th sl udge requirements;
o sample and analyze the influent to and effluent from the P01W to
deterliline, independent of reports submitted by the POTW, that the
POTI4 is maintaining the approved level of removal and is In
compliance with all applicable sludge requirements.
It is recognized that the sampling and analytical requirements
explained in this section may Impose a substantial resource burden
on t e State. While It is preferred that the State develop i s owr.
technical expertise, an acceptable alternative would be for the
State to contract with private consultants, universities or other
groups with sufficient technical expertise to carry out the sampling
and analytical requirements described in this section.
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____ UNIT D STATES ENVIRONMENTAL PROTECTION AGENCY
. WASHINGTON. D.C. 20460
JAN .1 9 1979
OFFICE OF ENFORCEMENT
( - i 5’
MEMORANDUM
TO: Regional Enforcement Division Directors
Director, NEIC
NPDES State Directors
fROM: Deputy Assistant Administrator for Water Enforcement (EN-335)
SUBJECT: Office of General Counsel (OGC) Memorandum
Attached is a copy of a legal opinion prepared by OGC in response
to questions concerning the inclusion of compliance schedules in Second
Round and new permits. The Permits Division is including this document
in its Policy Book as 78—2l—IV. If you have any questions or corlinents
about this opinion please contact Scott Slesin9 . r (EN-336), 202-755-0750.
_\ ( .
-
iff&’ey 9’ Miller
Attachment
cc: Regional Permits Branch Chiefs
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i, / WASHINGTON. D.C. 20460
I p t
-7;
r 1
L i , (9
OEP4Z A&. COUNEI.
ME MO RAND LTM
TO : Deputy Assistant Administrator for
Water Enforcement (EN—335)
FROM : Associate General CounseIfl’ \ i”
Water and Solid Waste Divi ion —t3 )
SUBJECT: Request for a Legal Opini n — Inclusion of Com-
pliance Schedules in Seco d ound Permits and
Newly Issued Permits —— Yo r Memo of November 2,
1978
QUESTION
You have asked a series of questions regarding the require-
ments of best practicable control technology currently available
C”BPT”) and ter quality standards (“WQS”) in permits issued
after July 1, 1977. Your first questions concern reissuance of
a permit to a source which had already been subject to BPT re-
quirements in an expiring permit. If BPT or WQS have become more
stringent since issuance of the first permit and additional con-
struction would be necessary for the source to meet the changed
requirements, you ask whether the permit must require the source
to meet the new BPT or WQS requirements and, if so, whether the
permit may include a schedule for achieving the new requirements.
In addition you ask, in the case of a new permit, whether the
permit may ignore BPT and WQS requirements and place the source
on a direct schedule to BAT/BCT. In both cases, you ask whether
a schedule of compliance, if allowable, may provide a time period
during iihich no construction is required, to allow the permit
writer and the discharger to determine what construction will be
required by BAT/BCT where those requirements cannot be clearly
determined when the permit is issued.
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2
ANSWER
If a source, other than a publicly—owned treatment
works, has never received an NPDES permit setting forth
any applicable EPT and WQS based effluent limitations, a
permit issued to such source must require immediate com-
pliance with the applicable requirements of BPT or WQS as
those requirements are in effect at the time the permit is
issued. If a non—POIW source has achieved its first—round
effluent control requirements, a new or reissued permit to
that source should assure that the source will continue to
achieve those effluent reductions. In addition, revised
BPT and WQS must be applied to the source. Since the Act
provides no fixed schedule for compliance with these re-
quirements, EPA should adopt a reasonable scheme for at-
taining compliance expeditiously, consistent with orderly
application of the Act’s 1984 requirements.
DISCUSSION
Section 301(b)(l)(A) of the Clean Water Act requires
all sources of pollutants, other than publicly—owned treat-
ment works, to achieve BPT by July 1, 1977, and Section
301(b)(l)(c) re.quires all sources to comply with WQS by
that date. Section 301(b)(2) establishes a second set of
more stringent technological requirements to be achieved
by non—POTW’s by 1984 (or three years after the date the
requirements are established, up to 1987). Thus, the Act
establishes a two—phase structure for achieving specified
effluent limitations.
The questions raised by your memorandum arise because
(1) some sources did not achieve compliance with the Phase I
requirements by July 1, 1977, and (2) in some instances
the definitions of BPT, or the requirements of WQS, have
been revised, and current levels of treatment, previously
in compliance with BPT or WQS, as defined in an NPDES per-
mit, are not adequate to meet the revised BPT or WQS. The
Act addresses the first situation, but it is silent as to
the second.
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3
I
Congress made it clear, in Section 301(b)(i), that ini-
tial compliance with BPT and WQS was to be achieved by July 1,
1977. In the 1977 amendments to the Act Congress recognized
that some sources had not met those requirements, sometimes
for justifiable reasons. Nonetheless, it refused to waive or
extend the deadline for such sources. See H.R. 3199, 95th Cong.
ls Sess., Section 13, eliminated in conference; see also,
Cong. Rec. S 13538, Aug. 4, 1977, explaining that the 1977
amendments do not extend the deadlines of Section 301 but
allow the Administrator certain Section 309 enforcement op—
t ions.
Since Congress expressly determined not to waive Phase I
compliance requirements or allow permits to extend the com-
pliance deadlines of Section 30l(b)(l), EPA cannot claim im-
plied authority to do so. Instead, if a permit must be issued
or reissued to a source which has never achieved compliance
with applicable BPT or WQS requirements, the permit must re-
quire immediate compliance with those requirements as they are
currently in effect when the permit is issued, and if relief
is to be provided, Section 309(a)(5) orders must be employed.
II
A source which had complied with BPT before the deter-
mination of BPT changed is in a different position from the
source which never complied. This source has already achieved
the Act’s Phase I requirement as administratively interpreted
and applied to it and is in a position to proceed with the
second phase. Therefore, it would be inappropriate to impose
an immediate requirement that revised BPT be achieved.
The requirement that BPT be achieved remains in the Act
even after the 1977 deadline has passed. However, the Act
does not, set a specific deadline for attaining revised BPT
requirements, and some reasonable scheme should be adopted
to ensure that such requirements be achieved as expeditiously
as practicable, consistent with orderly imposition of Phase II
(BAT and BCT) requirements. Thus, for example, if compliance
with revised BPT is a logical step towards attainment of BAT
or BCT limitations, such compliance could be included as a
reasonable interim element of the source’s permit responsibili-
ties. Certainly any applicable BPT requirements would have to
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4
be met not later than the date on which compliance with BCT
and BAT is required. However, where a compliance date prior
to that time would require construction or modification in
additjo to previously defined BPT, and where that construc-
tion would not constitute a logical step toward BAT, im-
posing the interim BPT requirement might well undermine the
Act’s orderly progression from the 1977 to the 1984 require-
ment s.
III
The issue of compliance dates for ongoing WQS compliance
is less clear. The Act establishes the end date for the first
stage of WQS compliance, but for subsequent levels of possibly
more stringent WQS, the Act defers to State planning determina-
tions. See Section 3 O 3 (e)(3)(A), Section 3 O3(e)(3)(p), Sec-
tion 208(b)(2)(3), Section 2 08(e), and Section 3 O3(e)(3)(g)
If a state has revised its WQS and established a schedule of
compliance at least as stringent as any federal requirement,
th.e NPDES permit would have to impose the state—established
limitation. However, if the State plans do not contain specific
compliance schedules, the EPA permit writer must establish the
Source’s Phase II WQS compliance schedule.
The Act supplies no express guidance as to what the EPA—
‘determined, post—1977 WQS compliance schedule should be. In
general, Congress intended compliance with the Act’s require-
ments to occur at the earliest practicable time.* One option,
therefore, might be for EPA simply to establish the policy
that post—1977 compliance must be achieved by the earliest
practicable time.
Alternatively, the Section 301(b)(2) pattern is to re-
quire second round municipal compliance in 1983 and second
round industrial compliance in 1984. It is reasonable to
* The Section 3 OFi equire e 5 are all to be met “no later
than” the statutory deadlines. See, jj , Hist . 163. In
the 1977 amendments, Congress confirmed its interest in securing
the earliest possible compliance. See Sections 309(a)(5) and
3 O9(a)(6), added by the amendments.
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5
establish WQS compliance schedules in harmony with the Act’s
general regulatory structure. Thus, EPA ay infer that the
Section 301(b)(2) dates should be applied to WQS, in the ab-
sence of any more stringent state schedules.
Which of these approaches (or what combination of them)
is to be selected is a policy judgment. Since the Act does
not express compliance schedule requirements for post—1977
WQS compliance, EPA may wish to supply guidance by regula-
tion. This would provide a reasonable, permanent method for
establishing WQS compliance schedules where none are avail-
able from the states.
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rz)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JAN 111979
GLNLRA . COuNS
MEMORAN DUM
TO : Deputy Assistant.Adminis ator
for Water Enforcement (( —335
FROM.: : Associate General Counse.
Water and Solid Waste Di
SUBJECT: Use of Biomonitoringin
.Your memorandum of August 31; l9 18, requests the Off ic€
of General Counsel to address two questions as to the legal
authority of EPA to impose toxicity test requirements in
second round permits. Our conclusions are discussed below
- Question 1 .
- Dbe5 EPAhave thé authority:to require pérmittees whose
effluent fails a toxicity.test or whose waste contains known
carcinog ns, mátagens,. orrteratogens, etc.. to prepare treat—
ability studies and toxicity reduction plans?
Answer
Yes.
Discussion
‘EPA’ th it e uisubrn Th iion of thf rrniEiân
- a -pe it jn e .$e ioi 4 2.ø : . C aa :. 21 Agt, as -
amended, is at least as broad asrthe-authoriey conferred by
Sectiop 308 of-the Act. Section402(b)(2), see 1 Decision of
the GeneralCounsc]. No. 39,-Issue 1(b). Section 308 calls
for point sources to conduct certain types of information
gathering 1 activitjes as necessary for specified.purposes.
This memorandum supersedes an OGC memorandum of November 3
1978, on thissubject
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—2-
rhu ii: n cc ry, the Adininiztr.,I:. .,r rnu t require the owned
or o cr tor of a uint Source to “install, uze, and maintain-
such monitoring equipment or methods (including where ap-
propriate, biological monitoring methods),° Section 308
(a) (A) (iii), and “provide zuch other information as he may
reasonably require.” , Section 308(a)(A)(v). This authority
must 1)0 exorcised “whenever required to carry Out the ,objec—.
tive of this Act,” inclucling(l) “developing or assisting in
the ,development of any effluent limitation . . . , (2)-deter—,
mining whether any”pcrson is in Violation or any such effluent
limitation • • :.• , or (3) carrying out sections . . . 402
and .504.”-- Section 308(a). The General Couns-el has stated
that, under Section 308(a) it is only necessary,’ to support
a permit data—gathering .requirement,. to find that the infor’—
mation is reasonably required to carry out,the objective of
the Act and is not unreasonable.’ Decisiort of the General
Counsel NO. 27r Issue V. -
easoñable biological monitoring requirements a é learly
ari,’appropr,iato’,.pôrmit condition. B’iological. monitor ing ’.is
specifically.authorized..by Section,,308. In addition,..such ’
monitoring is consistent with the ,section’s criteria,in that
the requirement,,can provide information related to the res-
toration and maintenance, of.the biological, integrity of..
the nation’s’waters; can be useful in the development of
effluent ‘limitations’for’-the,.sameor a subsequent NPDES
pcrmit,.or may..pozsibly be,nocessary ’to.carry out’the Section
504. emergency provisions. - -
- Treat’ab’tl’tty st dies andpo1lUt’ant’.reduction 1 plan e—;.
qulrements .arefa1sd.,within?:the’scope ,of Sections :308.,and,.402.
Where-a dischar’ge -is -foundT-to ‘be toxtc, ’it,. is. not inherently
unreasonable to r quire the discharger’ ‘to develop additional-;
‘information showing whether-and how the ,toxicity can,be
controlled. 3 The added information, 1 may be’ necessary in orcer—--
to restore and maintain the waters involved, Section ’,.308(a),
Section lOl(a),to develop effluent,,,limitations for the,,’
source,, Section ’;308(a)(l), ”-and ‘to c’irryout-Section”402
Section 308(a)(4).
Sti IieS : re ur.thè Po ted;by.’:’Scct ton ; ‘lOl ta
T1iát sectidn’ - .establishes.à po’l’icy,..in..order to ,achieve -th&.
,Act”sobjecttvo,thät , the discharge’ df’toxicpollutant’si’jri’
- toxic arnounts .be prohibited..” Toxicity reduction plans
would- be,squarely in-accord with that,policy. Their develop-
ninnt would ascict the Administ tor to implement tho policy
thcoucjh the -avi.iilablc tatut0ry procedures. -
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‘I’tu is quc t ion is s im i la r ti the quest ion adc rosscd by
Decision of the General Counsel N . 39, Issue 1(b). ‘rhere,
the permittee was required to conduct treatment and control
studies, including economic analyses of various alternatives,
to determine the technical and economic feasibility of t—
taming CATCA as then estimated by CPA. No guidelines had
bcenpromulgatod Cor the category of point sources •in question,
-The General Counsel’s decision upheld the permit terms under
-Sections 402 and 308, stating, .‘“it.-just cannot be seriously
contended that information directly relevant to establish-
ment of effluent limitations reflecting BATEA £or the very
permittee from whom the info rn&tion is obtained •is not in—
formation ‘required to carry out the objective of the Acts.:
and neither to be used for developing effluent limitations-
or relevantrto carrying out Section 402.”
Here itis not-clear t ättPie’treatability stUdies
and toxicity reduction plans.to be supplied would be employed
to .promulgaté industry—wide BAT. The information could none-
theless be.. ”required to carry outthe objective of the Act, ”
to set Section 402(a)(l) effluent limitations for the in-
dividual permittec or to implement water quality standards;
See discussion of question II, below.
It—is’therefore concluded. that biomonitoring,treat—
ability studies, and toxicity reduction plans may be included:
:as terms.of a PDCS permit. .The.specifte requirements must. -
of course be reasonabl ... The re3sorlableness of any require
.ment wouldhave to be determined in each case.
uestiori :-iI:
Do •EpA ánd• 4PDES StI s ha ié the authority-to--require
non—guidelines based toxicity.limits in NPDt S permits, arid
i so, what- is the basis for ...that authority?.
: Ariswer
-EPA ándNPDES.Statës have- thq.-authorLty to-.requLre.
nbn—güideline.based- toxicity li -ths in NPDES -permits. pursuant
to. Section 4o2La)fL)or’watcr Ygua1ity standards, provided
::that.thO applicahle requirements ofSection 402(a)(l) -:are
met- or thnt,thc w tet- quality standards supply a banis Core
-the I jut its;’
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I) i :;cn : iou
Section 402(a)(1 )
• Section 402(a)(1) .authórizes the dministrotor to j w
clude inocrinit , prior to th’ iir.j10:nenting actions relating
to Sections 301, 302, 306., 307, 308, and 403, such conditions.
as he determines are necessary, to carry out the provisions
of the Act..’ Where applicable effluent limitation guidelines
and standards have not been. promulgated, Section 402(a)
authorizcs thc.1 dministrator to include in pcrmit ;-cftl ent
I im i. tat ions b sod on best enc incer ing . judgment. D cc is ion
of the General Counsel No. 1, Issue,I. The Stat”es’.’authorffy
is comparable.. 40 CFR’,5124.42(6). ‘ “ ‘ --
prbmuicjation’of óffl’uànt’ltmitatións and’gu’idolines
for á’ category of sources does not prevont ’.the ’Administra—
tor’Lrorn using,Scction -402(a)(l). to :impoSe’:htmttatbon s on,.
parametersnot”included. in those’guidelines. Decision, of. the
General.Counsol No. 54, Issue, I. :..The omitted:.Patamete 5
are considered to be outside the’scope of.the rcgu1ation,
In addition, in the case of a pollutant listed as a toxic’
pollutant under Section 307(a), the 402(a)(l) action could
be justified as being action prior to implementing actions -
under Section 307(a). Id. ; see also Decision of the General
Counsel No. 2, Issue 3. ‘
A determination under’ secti ;:4o2(a)(1) ”iS”an thdividual-
case deter tination of’ a ugyiform’ national standard for ,the
‘class, or.. category of plants of whi ch ,the plant :tfl quest ion
-is a member ’.” , .,U.S. Steel.Corp ’ . v. EPA , : -F.2d ‘__, 10..
:ERC.loo1, 1016 ‘ (7th Cir. 1977)..’. Toxicity limitations’,’pre—.
sumably would constitute .individual—sourc&BAT,Or 307(a)
limitations ;and should be justifiable within the terms of
Section 304(b)(2) or:307(a).
It has been ‘prOposed. that-toxicititmttatiOflS’der Ved
‘C àm biomonitoring couldbe -stated ,in.either of two ways .
Cl) ;Limitations could 0 bc,:estab.1J s . d p!L p.!iif,,.ic_WaSte, arä— .
mete ’rs ref1ectin the1evels, of,,,po lutiOfl achievab1e.af.ter , -
completion,,of the toxicity, reducti’on.plan?or (2) an LC5O
1imitation could,be iinpos a.on’,the ,tbtal aste stream,
after’.a .toi’icity reduction ‘plan.
The’Cir t. approach’ would: mpOse,nurneriCa1,’limitatiOfl5
on s cciCicoCC1ucnt charactcri tiC 5.’. Thi!:is the usu ’t.
L racticc inwritin’J NL DCS ,permits and is clearly acceptable
-------
•.s:; )cIii .i:; I I%i I% IIh.’t : •111 jiifI. i r.i. I by L’c:liii it:., I , — w tL.:f—
LjtI I iL.y or .307 (ii) I :Lor! . WIicr I ho 1 iiui t:it i n aro I i i1
tifl the ci Luch 2L Jcr ‘:; own trcatabil ily studies and pollutant
r duct ion ptan, i PA iu Y, aftnr rev jew of thc tw1 je . ; and
be thic to tind that the renults con ;tituI:c an in—
d v idua ly detorin jfli’iI tn r lot the nou ree. The I LIt it houlu
thon b able to wiLh 3taflt3 challenge and thus L. tively
limit the ,arameterS covered.
Of course, the specific con titUent pproach. has the
practical drawback of requiring identification and limitation
of each constituent to be regulated. It fail to take ad—
vantage of the capability of biological monitoring andgeneral
limitations to control unidentified pollutants. This purpose
could be accompUshed by the use ofan LC O permit limitation,,
•if authorized by law.
Two possible approaches to.a eneral, toxicity oi dit ion
have been identified. A straight LC5O limitation could be
ostablishcd., Alternatively, the permit might regulate the
“lethal units”per gallon of-discharge, usingthe “lethal
unit” concept being developed in draft biomonitorthg protocol
guidance. -
An inittal questionin determiningwhether SUCh con— -
clitions could be uheld under Sec.tion 402(a)(l).is whether
a lethal unit or LC5O limitation is an effluent limitation
within the mearting of Section 502(11). . hatsectiortdefines
the term “effluent limitation”, as .“. . . any restriction .
on quantities, rates, and conccntrations of chetnical, physical,
biological, and other- ’constituents which are discharged
There is no:indication in Section .502(11) that the restric—.
tions:contemplated must be nurnert al or that the constituents --
must be individuallj identified. rA permit restriction phrased
in terms of the biological resultsof the.discharge of any
constituents.is coraparable to,a BODlimitation, which also
indicates the cffect of the overall ’discharge ratherthan
the :specific bonstitüents. .Such art.:effluent limitation
should not. bC inh rent1v imoroner.
terms-of thi
efflu ’ent’s .LC50 4 or ,”lothal. ,units..” HOweVer, any permit con— -
cUtion must:.:bcuicicntl iCrear that:th discharger-can
undoi tanii what— thi p’rm it requ irc : and- what would cannt itutä
a violation’; . Ti pCoblQm o( V iuencsz àr uncertainty ,may be -
of more concern in 5cttin ’ J cjcncral toxic l imitationz than
-------
would be true in the case, for example, of BOD. BOD isa
widely accepted measure of the oxygen required by living
organisms (bacteria) to decompose organic material under
aerobic conditions. A standard method for its analysis
exists. See 40 C.F.R. S136.3. The methodology recognizes
that SOD varies depending on a number of factors, and it
specifies constant temperature and other conthtions to assure.
a controlled environment.
At this time, EPA has not published toxicity test pro-
cedures under 40 C.F.R. S136. However, the Agency has
published three methods manuals which are widely used by
industry and regulatory agencies in testing for acute
toxicity.. 1/’ Acute toxicity methods also are included in
Standard Methods , 2/ which is recognized as an authorita-
tive reference for chemical and biological methodology..3/
1/ (a) IERL — RTP Procedures Manual; Level I Environmental
Assessment: Biological Tests/or Pilot Studies .
(b) EPA660/3—75—009,Metho for AcdteTdxjcjtvTests
with Fish, Macrojnvertebrates, and Amphibians .
(c) EPA 6bÔ14—78—92, M thods fbr Measuring th Acute.
Toxicity of Effluent to Aquatic Organisms .
APHA—l975 Stahda Mhods;’l4th edition.
3/. Ma y NPDES’-states ‘reTgi rts, refere.ncing the EPA nd
standard methods, are including acute and in some cases chronic
toxicitytest.requjrements in permits foriridustrjes suspecte&
of discharging toxic substances. .These reguirexnents are
generally used only for monitoring, but California and.
Washington also use acute toxicity t Strto establish ermjt
effluent limitations. .California üses the Toxicity Emission
Rate.(TER)asan effluent ljmj àtjon....The TER is the..product:
of the effluent toxicity (acute)...concentratjon and the waste.
flow expressed as Mgd. The State.of Washington limits acute
toxicity in permits as a function of percent survival of
test.organismsjn a percent concentration of effluent, i.e.
80 percent survival, in 65 ,percent treated effluent..
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While test procedures for acute toxicity may have reached
a level of confidence adequate to support specific effluent
limitations, it appears that testing methods to determine
chronic toxicity are not so well established. Where proce-
dures have not been refined to the point that results are
fairly predictable and consistent, effluent requirements
based on the results of the procedures might be challenged
as uncertajnor vague.
- Where the testing method is generally recognized,.ietha].’
unit or LC5O effluent limitations based on a source’s treat—
ability studies and pollutant reduction plan may be upheld
as a 402(a)(l) best engineering judgment as to BAT. The
source’s studies, if properly designed and conducted, could
be considered as supplying the necessary engineering .and
other information for the Administrator to consider in
keeping with Section 304(b)(2).
It must.be:emphasizedthát iny•402(a)(1) .bes ’t nginelring
judgment limitation must in fact be based on an evaluation
of the technology available to achieve that limitation.
If a discharger’s study is to be employed to provide the -
engineering data, the permit writer cannot depart from the
results of the study to impose requirements more stringent
than those indicated by the study unless other defensible
technical studies support the. alternative requirements.
This is true irrespective of.the permit. friter’s views of..
the discharger’s studies. . Whether . a given discharger’s
studies correctly identifythe best.available technology
for, reducing its toxic effluents may be a practical issue,
but inadequacies of the study, whether done in good faith -
or otherwise, will not justify writing a 402(a)(l) permit
that goes beyond the available ertaineerina d t
-. SectionJu,(a)- -rocusSes on individualpollutants.
-It would be inappropriate to base a . 4 02(a) (1) lethal. unit.-.
or LC5O condition on a 307(a) rationale. If the conditions
can be justified as individual—source...BAT.....no...3 07(a) -justi—:
fic tion would be neeessary. - - -
water-Quality Standards’ .
State water quality standardshávetoryearsinc lude&
general narrative criteria to limit certain.water quality
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—8—
characteristics.resulting from other than natural causes.
These criteria include variously phrased criteria prohibiting
the discharge of toxic substances in toxic amounts.
Previous decisions of the General Counsel have estab-
lished that narrative criteria in State water quality standards
may be used in imposing conditions in NPDES permits. Thus,
Decision of the General Counsel No. 13, Issue 1, upholds
imposition of numerical limits on the total residual chlorine
discharged.based on State toxic water quality. standards.
consisting of a general narrative and a median tolerance
limit numerical, standard. , The decision indicates that the• -
appropriate numerical chlorine ‘limitation would be a question
of fact.
Further; ‘the permit’s’eff luent’jjmjtaeibns derived
from the State’s narrative criteria do not have to be ex—
pressed in quantitative terms., See Decision.of the General
Counsel No. 65,, upholding a limitation that “there shall be
no discharge of visible foam or floating solids in other
than trace amounts,” based on the State’s narrative standard
to that effect.
It follows from these decisions that”the Act ‘would not
bar the Administrator from’ issuing permit .s that include
LC5O or “lethal unit” effluent limitatjor s based on a narra—-
‘tive criterion included in.a duty adopted State water quality’
standard. Indeed, where a’water quality standard for. toxicity’
‘exists and a source’s biomonitoring indicates that. its dis—..
charge’is,,toxic, the Administrator ou1d have aduty to
establish effluent limitations to assure.:conipliance with thi
State’s established criteria. See Decision of the General
4/ Many State standards ere mode1èdàn . he water Quality
Criterja’(],968) (“Green Book”) recommendations. The Green
Book recommended,:p. 3, that tandarTd ”s l’d à’ vidé, hat
al]..waters should be’ free from “materials, - inël .uding, radionu—
clides, which ar ,toi c,
or:whjch produce undesirable’physjologjca l responses in
human, fish, and’other animal, life ,and plants.”, Similarly,
Quality Criteria for Water (1976),’ p.6,, recommends that
waters should bc free from’substances attributable to dis—
‘charges that, “injure or are ;toxic or produce adverse.phy—
siological responses in humans, anjxnals,or plants.u
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—9—
Counsel No.-13, Issue I; Decision of the General Counsel
No, 54, Issue IV, and Decision of the General Counsel No. 58,
Issue I. 5/ In that case, the Administrator’s choices would e
to compelanalysis and identification of the individual con-
stituents accounting for the toxicity or to impose a general
toxic limitation. Particularly since technical feasibility
of complicance is not an issue in the case of water quality
standards compliance, the latter response is reasonable. -
It might be argued that imposition of ageneral control
on the effluent in order to Implement a water quality
criterion which is non—numerical, with compliance measured
through relatively new and uncertain techniques, contains
too many uncertainties to form a part of a regulatory pro— -
gram —— the, same vagueness/uncertainty concerns raised in
connection with the Section 402(a)(1) discussion. However,
the translation of effluent,characteristics to receiving
water.quality and determination of appropriate effluent
limitations to assure compliance with water quality standards
is.. generally imprecise. Where the toxicity criterion is
a State water quality standard, Section 301(b)(l)(C) requires’
that it be met. Although the standard is phrased in narra-
tive terms, its intent is clear, and there is an obvious -
close relationship between the water quality criterion and.
the effluent limitation. The permit process may provide
a forum for translating the imprecise standard into more
precise effluent limitations. .Itis concluded that effluent
limitations reasonably designed to result in achievement of
the duly—adopted narrative water quality standard should be:
defensible.
Where the water quality standard is ‘completely narrative,
the measure of,comp].iance becomes judgmental. (Compare,
e.g.,. . the Illinois standard considered in Decision of the
General Counsel No. 13, ,Issuel,.which defined toxicity as
1/10. of the .48—hour TLM ‘ for, native fish or essential, fish
food organisms, with th more_gene alpro tions modelled.
after the, recommendations quoted ..ip footnote, 4, above.
5/ A State’s 401 certification,’fajlure to certify, or
certif ication of a less stringent limitation would not
alter the Administrator’s independent responsibility., Decision
of the General Counsel No. 13, Issue I, and Decision of the
General Counsel No. 58, Issue I., -
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It is cautioned that where EPA is Operating the permit program
and the State standards are silent as to the measure of toxi-
city, the Administrator may be forced to determine acceptable
concentrations, thus issuing “interpretations” of State law
and regulations in an important area of emerging policies. , /
Conclusion
There are over 12,000 suspected toxic chemical compounds
in commercial use. It is, if not impossible, at least enor-
mously expensive to identify’ and establish appropriate pro-
hibitions or limitations on every substance which, if dis—.
charged to the navigable waters, may in some concentration,
singly or in combination with other substances, injure or be
toxic to humans or aquatic biota. Creative and at times
technology—forcing ‘solutions are needed. It is believed
that the efforts discussed in this memorandum can be supported
under the, Clean Water Act.
At the same time, the imperfections of these approaches’
are clear. :Continuing work on identification and more pre—
eise definition of the ,acute and long—term lethal and sub-
lethal effects of toxic constituents will be an important
complement to the biomonitoring and general toxicity limita-
tion approach.
6/ Of course, the State mayparticipatein the permit deter-
minations, and if the State objects to an EPA interpretation
of its narrative toxicity standard, :the State may suggest
an effluentljmitatjon oradopt a standard reflecting the
State’s preferences.
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74
:
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR 121979
MEMORANDUM OFFICE OF ENFORCEMENT
TO: Regional Administrators
NPDES. State Directors
FROM: Assistant Administrator for Enforcement
SUBJECT: State Pretreatment Proqrams
I recently attended a seminar for State officials on the
National Pretreatment program. As you may know, that program,
based on regulations promulgated on June 26, 1978, lays the
foundation for the control of toxics from industries disch.arg—
ing into publicly owned treatment works (POTWs). I believe
the pretreatment program is a vital link in EPA’s toxic
strategy. With the major source enforcement effort (for
both industries and municipalities), the emerging national
municipal strategy, the best available technology (BAT) or
second round permits effort , and the consolidated permit
initiative, the States and EPA will at last be implementing a
comprehensive program that will see the goal of clean water
attained.
The successful implementation of these programs requires
coo eratjon between the States and EPA. Nowhere is that
cooperation more important, and .t rhaps more difficult to
achieve, than in the pretreatment program. Resources, both
Federal and State, are scarce. Few people have the training
to carry out the program. The time deadline provided in the
Clean Water Act is short. And, alas, the proaram is compli-
cated, fills over 50 pages of the Federal Register , and is
beset by many unanswered technical and legal questions.
We have been listening, however, to suggestions by
State officials on making the pretreatment program more work-
able. Flexibility, they have said, is the key to successful
program implementation. State representatives stressed
the need for flexibility at our recent seminar for State
officials and at the ASIWPCA session in Washington, D.C. I
am endorsing these State suggestions, which are embodied in
this memorandum, and ask EPA Regions and State Water Programs
to use the submission of State Pretreatment Program Descriptions
as a vehicle for defining that flexibility.
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2
At the onset, however, I must express the boundaries for
such flexibility:
o legal authorities to operate pretreatment programs,
both at the State and local levels, must be adequate
to assure compliance with the law
o decisions on flexibility with respect to issues
currently under negotiation in law suits with
Manufacturing Chemists Association and NRDC (such as
removal credits and fundamentally different factor
variances) must await resolution of those law suits
o certain technical requirements, such as utilization
of EPA—approved analytical methods, must be complied
with as set forth in the regulations.
Beyond these ccnstra .nts, there is considerable room for
States and localities to exercise flexibility in designing
acceptable pretreatment programs.
Size of State Pretreatment Programs
The size of a State pretreatment program is generally
influenced by two factors, the extent to which the State
delegates to POTWs the authority to assume primary respon-
sibility for enforcing pretreatment standards and the number
of industrial users within that State subject to pretreatment
regulations. In its regulations, EPA has allowed for
flexibility in addressing both of these factors.
The general pretreatment regulations allow States to
exercise their discretion in electing to require the develop—
ient of a local pretreatment program for those POTWs with a
flow of 5 mgd or less. The State, therefore, has direct
control over the size of its program through the ability to
decrease its workload by delegating to PO13’?s responsibility
for carrying out pretreatment activities. It is recommended
that States delegate this responsiblity as broadly as possible
in order to shift the burden of regulation to the PO1 s which
can receive section 201 grant funding to carry out initial
pretreatment activities.
In addition, another measure of flexibility is introduced
through section 403.10(e) of the General Pretreatment regula-
tions which allows States to elect to run a State pretreatment
program covering industrial users of POTW5 in lieu of requir-
ing individual POTWs to develop pretreatment programs. This
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3
Option is particularly appropriate for States with a limited
number of industrial users. In such States the application
and enforcement of pretreatment standards for industrial
users can possibly be carried out more efficiently through a
single, centralized pretreatment program. To date, the
States of Vermont, Connecticut and Alabama have expressed an
interest in developing State—run pretreatment programs.
EPA personnel will be available to assist in tailoring
applications for pretreatment program approval to reflect
a State’s unique situation. For example, where, as in the
case of States with a limited number of industrial users, the
scope and complexity of the State pretreatment program is
limited, EPA can work with the State in designing a State
submission which comports with the basic requirements set
forth in the regulations but which minimizes the State’s
application burden.
Phasing of State Pretreatment Programs
EPA is attempting to introduce increased flexibility
into the State regulation of industrial users by allowing
for a staged implementation of State pretreatment efforts.
It is EPA’s position that the March 27, 1979, submission from
States need only demonstrate that States have existing
funding to address industrial sources covered by the eight
categorical pretreatment standards currently in effect. In
this submission, States should commit to a good faith effort
to obtain additional funding as needed to address future
categorical pretreatment standards as they are promulgated by
the Aqency. It is hoped that this staged approach to acquir-
ing resources will allow States to forge ahead quickly with
initial efforts in implementing the pretreatment program,
while allowing them time to develop additional resources
as needed.
Innovative Approaches to Pretreatment Program Operation
EPA is also encouraging States to explore innovative
approaches to carrying out State and local pretreatment
requirements. Flexibility exists to use contractor support
to carry out activities incident to the development of the
pretreatment program, such as development of an industrial
waste monitoring program, and activities associated with the
operation of the program, such as sampling and analytical
activities. States are also encouraged to explore the option
of establishing Regional or interstate laboratories to
undertake analytical work for State or local pretreatment
programs.
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4
In addition, EPA has agreed to work with the Association
of State and Interstate Water Pollution Control Agencies
(ASIWPCA) and the Association of Metropolitan Sewerage Agencies
(AMSA) to determine whether the development of common reporting
and other formats, combined with common contracting out of
associated activities, would produce a sufficient resource
savings for EPA, States and municipalities to warrant such an
effort. Finally., we have also agreed to consider suggestions
from ASIWPCA and AMSA regarding modifications to the existing
pretreatment regulations to allow increased flexibility for
States and cities in designing their pretreatment programs.
Such flexibility might include provisions allowing States and
cities to propose procedures which are equivalent to the
procedures set forth in the pretreatment regulations.
EPA Assistance
- The Agency is att’?mpting to assist in the implementation
of the national pretreatment effort through several levels.
First, federal grant funds will be available for both States
and localities to assist in implementing this program. Grants
under section 106 are the primary vehicle for assistance to
States in developing and administering pretreatment programs.
It is anticipated that funds provided through this mechanism
will be increasingly available for pretreatment purposes as
States assume responsibility for the management of construction
grants activities and funds under section 205(g) of the Act
are used in lieu of 106 grant funds for grant management
purposes. Funding will be available to PONs for developing
pretreatment programs through section 201 construction grants.
UEes for this funding include development of industrial waste
ordinances, completion of industrial waste inventories of
POTW systems, purchase of analytical equipment, and a limited
amount of effluent sampling and analysis.
In addition, in recognition of the considerable scope
and complexity of the pretreatment program, the Agency has
attempted through workshops, guidance documents, and face—to—
face meetings with State representatives to explain as
concisely as possible the requirements and implications of
the applicable regulations. In 1978 and 1979, the Agency
conducted a series of 10 national seminars for State, local,
and industrial representatives on the requirements of the
General Pretreatment regulations. These seminars were held
in each of the 10 Regional offices and attracted crowds
ranging from 300 to 800 people. In the early part of 1979,
EPA conducted a national seminar for State representatives in
Washington, D.C.. At this seminar, updated guidance docwnents
relating to the development and operation of approvable State
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5
pretreatment programs were distributed to attendees. Beginning
in March 1979, AMSA, in cooperation with EPA, will, be present-
ing a series of four seminars directed at educating the AMSA
membership on the national pretreatment program. In addition,
during the latter part of 1979 and into 1980, EPA will, be
conducting local seminars throughout the States directed at
assisting municipal permittees in developing approvable
programs. Finally, EPA will be providing contractor support
for State pretreatment activities in FY 1980.
I hope that by providing assistance to and increasing
flexibility for States in the pretreatment program we can
arrive at workable approaches to implementing this complex
and very important component of the national water pollution
control effort.
?i d k )
Marvin B. Durning
cc: Regional Enforcement Division Directors
ReVional Permit Branch Chiefs
Director, NEIC
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‘ 4 ,
I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASrIINGTON. D.C. 20460
£ 3 ’
e n 79
.-3
OFFICE O ENFORCEMENT
MEMORAWDUM
TO: Reoional Enforcement Division Directors
FROM: Deputy Assistant Administrator for Water Enforcement (EU-335)
SUBJECT: EPA Procedures for Review and Approval of State Pretreatment
Program Submi ssi ons
We have already reached the March 27, 1979, deadline for receipt
0f State aoolications for pretreatment program approval. Applications
have been received from several States. Other States, and several
Regional Offices, have asked for greater flexibility in the procedures
for aporoving or denying applications for program approval, in response
to these requests, we have been working with several Regional Offices
to develop more flexible procedures. Problen’ areas have recently been
resolved and the form of these new procedures was settled upon. We
would like you to be aware that S403.11 of the general pretreatment
regulations is going to be amended in the near future to incorporate
tr ese new procedures (see attached draft.amendments) and to conform the
pretreatment regulations to the final NPDES regulations. The process
for review, public notice and approval of State pretreatment programs
will be different. The new procedural responsibilities should be
divided between Headquarters and the Regions as indicated below.
In general, EPA should make a determination on the request for
State pretreatment program approval within 90 days after the receipt of
a co” plete submission; however, there will be no specific deadline for
EPA action. Upon the receipt of a con’olete submission, the Regional
Office should contact EPA Headouarters and issue a public notice of the
recuest for State pretreatment orogram approval. This Dublic notice
should provide for a comment period of not less than 30 days and should
also provide an opportunity for a hearing. Publication of the notice
need only appear in enough of the largest newsoapers in the State to
prcvide statewide coverage. The Region is responsible for issuing the
public notice, receiving and analyzing comments on the State submission,
and holding a public hearing, where appropriate. Whenever a hearing is
going to be held, Headquarters should be infor”ed and sent a copy of the
notice of the hearing. Based on the State’s submission and co ents
received the Recioral Administrator will make a reco mendatiOfl in an
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2
Action Memorandum to the Administrator, on whether to approve or not
approve the State program. The Office of Enforcement will be respons-
ible for processing the package at Headouarters, and concurrina or
non-concurring wi th the Regi onal Admi ni strator’ s recommendations.
Office of General Counsel also has a concurrence role. The final
decision will be made by the Administrator.
Since we would like to process these submissions in 90 days, it is
desirable to track the program approval process as closely as possible
to ensure that actions are completed on schedule. We are requesting
the Regional Offices keep the Permits Division at Headquarters notified
of key developments in the program approval process. EPA can thereby
maintain an accurate estimate of the progress of the Implementation of
the program nationwide.
Therefore, we would request that the Regional Offices notify
Headquarters of the progress of the State pretreabnent program
approval process as set out below.
Processing the State Submission . Upon receipt of an applica-
tion for State pretreat!nent program approval, the Regional Office
should send a copy of the State’s submission to the Permits Division
at Headquarters for the attention of Bill Diamond and notify him by
telephone at 755-0750 (FTS). In forwarding this submission, the
Region should indicate the date it was received at the Regional Office.
If the submission is subsequently determined to be sufficient
under S403.lO, you should proceed to public notice and notify the
Permits Division. If the submission is not complete, the State should
be notified of the deficiencies by a letter from the Regional Administrator.
In case of any doubt as to the completeness of the submission, please
ccnsult with this office. In order to be deemed cor..plete, the oackage
must contain all the elements required by S403.1O. Any statutory or
regulatory authority the State needs to implement pretrea ent require—
ents must be fully promulgated before the submission can he approved.
We cannot conditionally approve a program which lacks the required
legal authority.
Work on the Regional Administrator’s Action femorandum should
begin during the comment period. Likewise, negotiations on amendments
to the State/EPA Memorandum of Agreement, if any, should be conducted
during this time.
Action tiemo Setting Forth Recom”iendation on State Prooram Requests .
Within 65 days from the receipt of a submission neeting the requirements
of the oretrea nent regulations, the Regional Adninistrator should submit
a reconnendation in an Action t emoran um to the Administrator, on
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3
whether the State pretreati ent program should be approved. A copy of
this Action Memorandum should be forwarded to the Permits Division at
the same time. My staff will provide you with a sample Action Memorandum
upon request.
The Action Memorandum should include the following attachments:
1. A copy of .the public notice published in the Federal Register
and circulated by mail and in the news media.
2. If a hearing Is held, a copy of the notice of a public hearing
on the State submission.
3. Copies of all comments received or a summary of these comments.
The Action Memorandum should discuss significant issues that are
raised and respond to them.
4. An analysis by the Regional Counsel, or an attorney in the
Enforcement Division, on the adequacy of the legal authority of
the State to implement the requirements of 40 CFR Part 403.
5. Three originally signed copies of any amendments to the State/EPA
Memorandum of Agreement. Such amendments will be signed by the
Administrator when the State program is approved.
6. Such other documentation deemed appropriate by the Region, for
example, a memorandum analyzing the adequacy of State resources.
Upon receipt of the Regional recommendation, the Office of
Enforcement will process the Region’s package and indicate concurrence
or non-co’ currence with the recommendation.
If a State fails to submit an application for pretrea nent program
approval within a reasonable time after the deadline, the Regional
Office should notify Headquarters and should also contact the State and
remind it of the need to submit an application.
Nancy Hutzel and David Schnapf in the Permits Division are available
to assist you. They can be reached at 755—0750 (FTS). Please do not
hesitate to call them with any questions you ma . .he je.
/
1 er
Attach ent
cc: Per it Branch Chiefs, Regions I-X
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S43.l0 ( e. e )
* * * * *
(g) * * *
(3) Arv ificatic ’.s or additions to the M - of Agre ent
(r ired by 40 CR 5123.7) .t ith 2’ ay be ne sary for A ar the
State to l e t the req L e nts of this
Ui 5403.10 is r ed by revising pa a apb (h)(2) to read as
follows:
S403.l0 ( e.’ ed)
• * * • *
( ) * *
(2) Cre ce the revision pz ss set Dlt in 40 C S123.62.
For es of that section all re ues for appvval of State pretreat-
s - a.l1 b su r ’ p am ificatic s. ?
t pe:i of at lease 30 dave. ar the ity for a hear
s a.ll be afforfed the public on a21 s . revisio s.
* . * * *
(j) 5403.10(i) is er ed by the rds this Part” for
the w rds paaSap (g) of this section in th pla s they r.
k
Cc e inc of S403.ll is revised to read as follows:
-------
403 . U s .1 ?ce fa P iW P eearent ? s ar Bevisia
Cf Catec ice.l Pet ea nt Star srds.
p
( ) 5403.11 is e. ed by revising the fL st s&iterice ‘ea as
fc11 s:
5403.11 ( T .1 ed)
The fcU . p oce res s. a11 fo11 ed in rin o der ’thg
re ests fc 1W P e a rit P cgr
* * * * *
( ) 5403.11 is ed by de.letirç all references 5403.10(f) az (g).
(n) 5403.11(a) is er ed by arçirç the reference in places £
‘403.9(e) d (. ‘ to ‘403.9(d) ard Ce).’
(o) 5403.U(b)(1)(i) is erthed by deletirç -..i.i the fist site.
the w s ‘s a11 p 2.ished in the Federal e iseer in the case of a
Stet S !iSZi 1 arid’
lb
(p) 5403.i1(b)(1)(i)(A)Adeleted and s aregrep’ .s (B) and (C) are
redes nated to (A) a (B) respect3w.ly.
(c) 5403.12:is e ed by re’ .sirç sa (b)(1)(i)(B), (fc ly
(b)(1)( )(C)), to read as fdUc is:
5403.2.1 ( nded)
* * * * *
125—44
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( ) * * *
(1) * * *
(4 * * *
. *,
( ) ? fr j of a r tjce of e uest fc a va.1 of the St .ssjoi th
the 1a est t a!iy n i er within the jU isdjCti ( ) seved by the
* * * * *
Cr) S4O3. i1 is rz 5ed by s bstit3tthg the words m30 days wherever
the r s 45 day ape.ar.
Cs) 5403.ii(b)(2)(jj) is reed by the de.ietj’, the wor a State 0r.
(t) 5 4 O 3 .i1(e) is er ed by de eti.’ g the wcr s or Diectora.
.5—45
-------
Cd) f t ‘- r—ator - -. ‘es the State’s seticn 404 he
or £ e s-.!.i1 tify t State ar t # Secretary ar p 1ish r tice in
t ? eder .1 Recister . e Secretary s a11 sus sr the issu.ance of
se:tion 404 peits by t ps of ! çinees within the State, except
for t se waters s cifi in section 404(g) (1) of the t as
identifi in the M cra t of )e nt bet en t State ar t
Secretary (see5123.5(a)).
Ce) ‘ t. ó i a r de&es the State 1 e or sbe sha.11
rctify tk State o tk rees r.s for t denia.1. a of any revisior or
ificat or to t e State - r b.t ith are necewry to tath
&at C — v sions to — 7ed r s
5.23.61 ? r ced re fcr revision of State
(a) ?r r wision maybe initiat at the reç. st of ei r A
or t State. ?r r revision may be eces y z en t controiiirq
Fe era. or S:a:e sat..t ry or egu1a ry at ty is ifi c r
s er.:ed. ‘ e 5.ae i tor s .11 ) ep A ft 11y i for ed of any
:- sed r ifi:at.ons to i.s basic stat.tory or re 1ary authrity,
its for s, po es or priorities.
fbi Revision of a Stats ra, s a.U be a as fo11 s:
(1) e State ss it a ifi çre de rition, Ato ey
C e-era .’ s State t, M rar t of or other oc r ents as are
eSM r .r de: cir r star es.
12 ‘—4 6
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(2) f A dete tines that the sed d 1 £ication( s)
is s bsta :izl, the ?gency s ’.a.ll issue public notice a. provide at
leas 30 days for the p lic to The public notice shall be
‘ d to .a—er d a. es ar cha.i’ be bl &’e’ e’ cug of the
laroest - a es t. Stats to at ac statew de ve’ ge.
The public notice shall s r arize the prc sed rodificati ns ar
iide for the rt ity to request a public hearing. A hearir
v’..1l be held if there is significant public interest.
(3) The dification shall be te effective u n the approval
of the A inistator. Notice of approval of substantial
rr. ificaticns shall be p lished in the Federa.l Recister . - Nostantia.l
pr r rxtfic.ations ray be approved by a letter fro the Agency.
Cc) The State Director shall notify A whenever the State pr ses
to transfer all or part of a.iy fro the e j ved State agency
tc a ’ cthe: açency, ar d shall identify a y ne division of res rsi
bilities cç the agencies involved. The r açenry is not authorized
t &t.inisre: the pr r nti1 approved by the A .iniStratcr. Orar.
.aticr.a. a.r.s ired under 5123.4(b) shall e revised and resu t:ed.
Cd) f tne ator has reason to believe that ci snces
ray have anged with res c to a State he or she ray rec uest,
and the Stats Shall provit .e a st ple ental tc ey Genera.l’ s 5tat ’ten:,
< esripticn, other do n or indo.aticn as necessary.
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,I ___
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SE 11 17S OFF1 OF D C MEHT
P1 - -Y
RAN 11
gional forc ient Division Directors
State Directors
FP L1: Deputy Assistant A±tinistrator for Water forc nt ( -335).
Se?rate Sto n Sewers
Section 122.45 of the new NPDES regulations defines “separate sto
sewers” as conveyances used pr zriarily for collecting arx conveying sto
water runoff ich are either located in an urbanized area or designated
as a significant contributor .o 11ution by the Director. EPA does not
consider stocn sewers .tiich do not fall under the definition of “separate
sto n sewer” e.g., stoni sewers in rural areas, to be pint sources subject
to D S pe nit requir nents. In the fo ner regulations, EPA had a cnent to
40 CFR 125.52 (a) which stated:
It is EPA’s tent that an’7 conveyance
or syst n of conveyances prii arily operated for
the purp se of collecting and conveying stc
water runoff which is not located in an urbanized
area and wnich nas not bean designated by the
Director or the egional A ninistratOr as a
significant contributor of 1lution shall not
be considered a int source and thus will not
be subject to the prouisions of this part.
Because EPA did not repeat the language of the ccx nt in the
June 7, 19 9, ? E S regulations, r exr ’ persons asked whether EPA was changing
i .s olicy. EPA is not chariing its licy in this regard and intends to
piblith a technical correction to S122.’15 in the Federal to indicate
that such sto sewers are not considered to be pint sour .
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n—79—5
NATIONAL MUNICIPAL POLICY AND STRATEGY
For Construction Grants, NPDES Permits, and
EnforcEnent Under the Clean Water Act
U.S. Env i rorvuental Protection Agency
Office of Water Enforc nent
Office of Water Program Operations
October 1979
(A copy of this policy may be requested)
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PREFACE
A majority of municipal dischargers, for a variety of reasons, have not
complied with the Clean Water Act’s July 1, 1977 treatment requirements. These
discharges contribute a substantial pollutant load Into the waters of the
United States.
This National Municipal Policy and Strategy , published after months of
convilent and discussion, will serve to guide Regions and States in a productive
period of activity aimed at achieving the Clean Water Act’s goals of fishable
and swin nab1e waters, in part through full municipal compliance.
To give effect to this National Municipal Policy and Strategy , I have
directed the Deputy Assistant Administrators for Water EnforcBnent and Water
Program Operations to produce a Municipal ManagBnent System. I have further
directed the Deputy Regional Administrators to work directly with the Program
Offices to implement the management system.
Douglas Costle
Administrator
—1—
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OUTLINE
Page
Introduction 1
II Legislative Background 3
III Status and Scope of Municipal Noncompliance 5
o Description of Noncompliance Problem
o Remedies to the Noncompliance Problem
IV Municipal Noncompliance Classification Process 8
o Purpose
o 30l(i)(l) Initial Test
o POTWs With Active Grants
o POTWs Without Active Grants
o POTWs Which Have Completed Construction
V - Issuance of 3Ol(i) 1) Extensions 16
o The Relationship of Section 301(h) to
Section 301(i)(l)
VI Issuance of 309(a)(5)(A) Administrative Orders 22
VII Priorities for Issuance of Extensions and
Administrative Orders 27
o Pretreatment Priorities
o Funding Availability and Schedule Development
VIII Treatment More Stringent Thar Secondary 33
IX Municipal Referral Priority System 37
o Purpose
o Scope
o Effect of 301(i)(1) Request on Initiated
Referral s
o Procedure
o Special Enforcement: Public Health and Fragile
Ecosystems
o Special Enforcement: Category IV
o Implementation
X Formulating a Municipal Management System 42
—111—
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,t , 17%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON. D.C. 20460
JAN1 8 7980
OFFICE OF ENFORCEMENT
MEMORANDUM
TO: Regional Enforcement Directors
FROM: Acting Deputy Assistant Administrator
for Water Enforcement (EN—336)
SUBJECT: Regional Review of State—Issued NPDES Permits
It has been the practice in certain Regions to issue letters
which “approve” State—prepared draft or proposed NPDES permits
submitted for the Agency’s review pursuant to section 402(d) of the
Clean Water Act. However, that section, while authorizing review
of proposed permits, only provides a mechanism for disapproval
(“veto”) of permits and does not authorize Agency “approval” of
State—issued permits. We believe that the practice of formally
approving State permits is open to serious misconstruction.
It has been the Agency’s position that review of permits
prepared by States is discretionary and does not constitute Agency
action. Thus, the Agency has successfully argued that its review
of State permits is not subject to judicial review and does not
require preparation of environm€.ntal impact statements. See Save
the Bay, Inc v. EPA , 556 F.2d 1282 (5th Cir. 1977); Mianus River
Preservation Committee v. EPA , 541 F.2d 891 (2d Cir. 1976);
Cnesapeake Bay Foundation v. Virginia State Water Control Bd. , 445
F. Supp. 122 (E.D. Va. 1978). Letters which purport to “approve”
draft or proposed permits may undercut this position and raise the
possibility that the approval will be subject to judicial review.
To avoid this result, the provisions of section 402(d) and 40
CFR §123.23 should be closely followed. If the Region concludes
that the draft or proposed permit is outside the guidelines or
requirements of the Act, the Region should object in writing to its
issuance. The State should be advised of the problem with the permit
and alternative provisions should be suggested.
However, if the Region does not intend to object to the permit,
approval is neither necessary nor desirable. If the Region wishes
ere1y to offer comments on the permit without objecting to it
under section 402(d), it should clearly so state.
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—2—
The legal concerns expressed in this memorandum were first
brought to my attention by the Office of General Counsel. If you
have any questions about the legal implications of EPA review of
State—issued permits, please contact Alan Eckert, Deputy Associate
General Counsel, at 755—0753 (FTS).
I have attached draft language which you might consider in
formulating responses to State draft permits. These forms do not,
of course, cover all, situations. In many instar .ces, for example,
it may be necessary to raise an interim objection and seek further
information from the State. In other instances, we have to file a
general objection to the proposed or draft permit within the time
period allotted in the EPA—State MOA and follow—up with the speci-
fics later.
Leonard A. Miller
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DRAFT COMMENT LANGUAGE
Dear Sirs:
In accordance with the Clean Water Act, 33 U.S.C. SS1251
et seq., and the State—EPA Memorandum of Agreement, I have
reviewed proposed permit No. _______ submitted by ur office,
and I have no objections to its issuance.
However, I would like to offer the following comments:
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DRAFT OBJECTION LANGUAGE
Dear Sirs:
In accordance with the Clean Water Act, 33 U.S.C. SS1251
et seq., and the State—EPA Memorandum of Agreement, I have
reviewed proposed permit No. _______ submitted D your office.
I have concluded that under its present provisions, this permit
is outside the guidelines and requirements of the Act, and con—
seqüent]y, pursuant to section 402(d)(2) of the Act and 40 CFR
S123.23, I object to its issuance.
I have objected to the issuance of this permit for the
,following reasons: - -
*** ***
In order to eliminate this objection the following
modifications to the permit should be made:
*** ***
These provisions would be contained in the permit if issued by EPA.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20460
n- eo• ’
JAN 1 8 1980
OFflcE OF ENFORCEMENT
MEMORANDUM
TO: Regional Enforcement Division Directors
NPDES State Directors
FROM: Acting Deputy Assistant Administrator for
Water Enforcement (EN —335)
SUBJECT: Applicability of Revised NPDES Regulations to Permits
Currently Being Processed
There have been a number of telephone inquiries from the
Regions regarding the applicability of the final NPDES regulations
to permits currently being processed. This memorandum is to
confirm in writing the information and guidance we have been
providing over the last few months on the effective dates and
applicability of various portions of the new regulations.
On August 13, 1979, Parts 122 (general program requirements),
123 (State program requirements), Subpart H of Part 124 (cvi—
dentiary hearing requirements), and most of Part 125 (technical
standards and criteria) of the revised National Pollutant Dis-
charge Elimination System (NPDES) regulations (44 FR 32854,
June 7, 1979) went into effect. The remaining provisions of
Part 124 went into effect on October 13, 1979 (see Sl24.135)
and apply only to processing of draft permits put on public
notice after that date. (The effective date for Subpart K
of Part 125, concerning best management practices BMPs was
delayed until supporting guidance materials become available; see
44 FR 47063, August 10, 1979.)
The approach being taken for implementing the new regulations
for permits that were being processed when the regulations went
into effect is similar to the approach taken in S124.135, which
provides for a phase—in of the new requirements. This approach
should minimize the disruption of ongoing permitting activity.
Permit processing which has gone as far as issuance of public
notice of the availability of a draft permit on or before August
12, 1979, y continue to be processed under the old NPDES
regulations. Thus, when a draft permit (put on public notice
prior to August 13, 1979) included permit terms and conditions
based on the old regulations, the permit may be made final based
on the old regulations. However the permit writer, in his or her
discretion, may elect to apply the new regulations in formulating
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2
the provisions of the final permit. You are encouraged to use
the new regulations where a clear benefit would be gained by
doing so. Permits which had not reached the public notice stage
before August 13, 1979, should be processed under the new regulations.
State programs are to implement the new requirements to the
extent they are authorized to do so. Any State which lacks
authority to implement all applicable portions of the new regulations
will have to modify its program in accordance with 5123.62. Because
the consolidated permit regulations will make several changes in
the NPDES provisions, these modifications should await publication
of the final consolidated regulations in April. EPA will soon pub-
lish a Federal Register notice suspending the compliance deadlines
for approved State NPDES programs in 5123.62.
If you have any questions or specific situations which are
not adequately addressed by this guidance, please get in touch
with me (202)755—0440 or call Frank Hall, Acting Director,
Permits Division at (202)755—2545.
i il1er
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. : s—i .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C. 20460
OFFICE OF EkFORCEMENT
:EMORANDUM o - 3
TO: Regional Enforcement Division Directors
Regional Permits Branch Chiefs
FROM: Acting Deputy Assistant Administrator
for Water Enforcement (EN—335)
SUBJECT: Incorporation of Pretreatment Program Development
Compliance Schedules Into POTW NPDES Permits
The General Pretreatment Regulation (40 CFR Part 403)
requires that certain publicly owned treatment works (POTWs)
develop programs to ensure compliance with pretreatment discharge
standards by nondomestic sources discharging into the POTW. A
necessary first step in developing these programs is the insertion
of a compliance schedule for program development in the POTW’s
N?DES permit. The purpose of this memorandum is to re—emphasize
the importance of incorporating pretreatment compliance schedules
into all appropriate permits at the earliest possible time.
BACKGROUND
It is the intention of the Clean Water Act and the National
Pretreatment Strategy that the primary responsibility for enfor-
cing pretreatment stz.ndards be delegated to local POTWs. This is
to be accomplished by EPA and NPD S States overseeing the develop—
ent of POTW pretreatment programs meeting the .require ents of
the General Pretreatment Regulation. Section 403.8(d) of that
reçulation requires that,
If the POTW* does not have an approved Pretreatment Program
at the time the POTWs’ existing Permit is reissued or
modified, the reissued or modified Permit will contain the
shortest reasonable compliance schedule, not to exceed three
years or July 1, 1983, whichever is sooner, for the develop-
ment of the legal authority, procedures and funding required
by paragraph (f) of this section. Where the P0Th ’ is located
in an NPDES State currently without authority to require a
POTW Pretreatment Program, the Permit shall incorporate a
modification or termination clause as provided for in
section 403.10(d) and the compliance schedule shall be
incorporated when the Permit is modified Cr reissued pursuant
to such clause.
As defined by section 403.8(a)
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2
The insertion of these compliance schedules is a critical element
in launching the development of many POTW pretreatment programs.
Compliance schedules also serve as a means for EPA and NPDES
States to track program development.
Those POTWs required to develop a pretreatment program
have been identified by States and Regional offices. Preliminary
information on these POTWs was forwarded to Headquarters at the
start of 1979. Since that time, the Regions and -States should
have developed a firmer list of exactly which POTWs will need
pretreatment programs. For those POTW5 so identified, the
task of incorporating compliance schedules should be well underway.
CURRENT STATUS AND NECESSARY ACTIONS
Despite the importance of compliance schedules to program
development and the need for their swift incorporation if
regulatory deadlines are to be met, there have been indicationS
that schedules have not been inserted in all appropriate permits.
While some Regions and States have moved forward strongly in this
area, others have not. If the pretreatment program is to be
successful and the momentum for local program development that
has been generated is to be maintained, it is essential that this
activity is given appropriate priority.
In order to meet both the u1y 1, 1983 program approval
deadline and allow POTWS adequate time for program development,
compliance schedules should be established as soon as possible.
By inserting schedules in permits as they expire or are modified,
the disruption and waste of resources created by reopening
permits solely to incorporate pretreatment compliance sc.hedulcs
will be avoided. Although it is desirable to avoid opening
permits just to insert pretreatment schedules,thiS step may
become necessary as the 1983 deadline approaches. As first round
permits expire in F? 80, the insertion of compliance schedules
will be a priority activity in this fiscal year. Less than
complete attention to this activity will create a backlog with
ctentially disastrous program consequences.
I understand that the timely insertion of compliance
schedules has been made more difficult by the delay in approval
of State pretreatment programs. However, in many cases, this
delay need not affect the development of POTW compliance schedules.
The General Pretreatment Regulation and the National Pretreatment
Strategy make it clear that those States which currently have the
authority to reissue, modify or reopen POTW permits to incorporate
pretreatment requirements should exercise that authority and put
compliance schedules into expiring permits or those being modifi
for some other reason. This should be the case with the r ajority
of NPDES States. Those few States which at this time lack the
necessary authority o incorporate co p1iance schedules
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3
should continue to put modification clauses in permits. These
modification clauses should require that such permits be promptly
reissued or modified after State pretreatment program approval to
incorporate an approved po w program or a compliance schedule for
the development of a pretreatment program. To alleviate future
delays, all States should move quickly to receive State program
approval.
The incorporation of compliance schedules into permits
should not be a major resource burden on either Regional offices
or States. Individual schedules should not vary a great deal
from the model provided in guidance material. A model compliance
schedule accompanied by a detailed explanation of how to develop
such a schedule was included in the November 29, 1978 memorandum
from the Deputy Assistant Administrator for Water Enforcement and
the Deputy Assistant Administrator for Water Programs Operations
which is attached for your assistance. This information was
expanded upon in the Pretreatment Guidance Document for NPDES
States that was distributed in February, 1979. Additional copies
of this Document are available from Headquarters Permits Division.
If these models are followed, it should require a minimal amount
of resources to carry out this critical function. The investment
of resources in this effort now will yield a long term resource
saving for EPA and States. Pretreatment programs developed as a
result of these compliance schedules will shift most program
responsibilities to POTW5.
CONCLUSION
To allow us to evaluate the progress of this program,
and to help us plan where we can best utilize our contract
dollars, we ask that you provide us with the following information
on c thp1iance schedule activities:
o Your current count of the number of PO s or PO1’vJ
Authorities which are required to develop pretreat-
ment programs.
o Of those POT s or POTW Authorities required to develop
programs, how many have pretreatment compliance schedules?
How many have modification clauses?
o How many POTWs or POT Authorities, required to develop
pretreatment programs, do not yet have either a compliance
schedule or a modification clause?
o How do you plan to deal with those PCT s or POT
Authorities with neither a compliance schedule nor a
r cdificaticn clause, i a tanner t at will allow them
sufficient time to develop a program prior to the July
1, 19E3 deadline?
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4
Fc: purposes of answering the first three questions, we have
attached a fcrTn that can be filled in for each State in your
egion. Because of the need to finalize our contract planning
process, we need this information as soo&. as possible and would
like to have it within four weeks of your receipt of this memorandum.
Please send the completed forms to Michael Kerner, Permits
Division, (EN—336), US EPA, 401 M Street SW, Washington, D.C.
20460. If you have any questions on this or any other aspect of
the National Pretreatment Program you can call Michael Kerner at
(202) 755—0750 (FTS).
By diligently pursuing this compliance schedule activity,
we should be able to prevent any further program slippage and
encourage the rapid and successful development of this important
pollution control program.
Leonard A. Miller
Attacnrnents
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ATTACHtIENT 2
STATE OF ___________
Number of POT 7s or PO W
Authorities requiring
Pretreatment Programs*
Number of PO s or POTW
Authorities with Pretreatment
- compliance schedules.
Numnber of POTWs or PO W
Authorities with modification
clauses
:: ber of ?OT cs without
co rpliance schedules or
mod fi:at on clauses.
POT Authorities responsible for more than one PO S4 will be
required to develop only one pretreatment program applicable
to all their facilities. Therefore, in those situations
the individual POT s should not be counted separately.
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• — —
• SI • • — —. S
TO: Enforc ent Division Directors (Regions I — X)
Director, Permits Division (E —336)
SU .7ECT: EOD 5 Carbonaceous Test flesults
Attached is a copy of a em rand rn from the As oci te
General Counsel concerning the u e of th. _D p uLt roqu re—
CSt to ostablis . e 1 secondary treathent regulations.
—— . —— e••_ U
Since this issue is receiving nore and mcre attention,
I an tran itting this C CC nenorandum for your infornation
and use.
Attac1 nt
cc: ?ernit Dranch Chicf S
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tp 3’4I ,
i#a.
____ UNITED STATES ENVIRONMENTAL PROTECTI N A gNCv
J WASHINGTON. D.C. 20460
MAR 1 0 1980
acPi or
GLNCR*I. COLaPIU& ..
MEMORANDUM
SUBJECT: Use of BOD 5 Carbonaceous Test Results to
Determine Compliance with NPDES Permits
Based on Secondary Trea i ? t Requirements
FROM: James A. Roge rs\’ N.a.u.b C 4i “1 kiui
Associate General Counsel (A-l31)
TO: John Brian Mol) oy I
Director
Enforcement Division (EN—338)
Frank Ball
Acting Director
Permits Division (EN-336)
question
Your memorandum of February 4, 1980, requests advice
respecting the availability of a BOD Carbonaceous test as
a measure of compliance with secondary treatment require-
ments. This information would be used to instruct the
regions as to whether permits intended to impose secondary
treatment requirements may be issued, or secondary treatment
effluents monitored and defended, on the basis of a carbon-
aceous BOD test.
Background
Under section 30l(b)(])(B) of the Clean Water Act, all
publicly owned treatment works must achieve secondary treat-
ment as defined by the Administrator under section 304(d).
Section 304(d) requires the Administrator to publish informa-
tion on the degree of effluent reduction attainable through
the application of secondary treatment. Under section 304(g)
(now 304(h)), the Administrator was required to promulgate
guidelines establishing test procedures for the analysis of
oo l lutants.
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—2
Pursuant to those sections, the Administrator promulgated
secondary treatment information on August 17, 1973. See 40 CFR
Part 133. The regulation defines minimum levels of effluent
quality attainable by secondary treatment in terms of various
parameters, including ‘Biochemical Oxygen Demand (five—day).’
S133.102(a). The regulations further provide that sampling
and test procedures must be in accord with the Administrator’s
guidelines under section 304(g). S133.l04.
The Administrator promulgated initial 304(h) (formerly
304(g)) guidelines on October 16, 1973. See 40 CPR Part 136.
Section 136.3 of the guidelines identifies approved test pr
cedures and specifies that discharge parameter values must
generally be determined by one of the standard analytical
methods cited and described in Table I of the section. Table
I as promulgated lists BODE and specifies the Winkler (Azide
modification) or electrode method.
The Administrator proposed amendments to the test
procedures regulations on December 3, 1979. The amendments,
if promulgated, would add an approved test procedure for ‘BOD 5
Carbonaceous.’ This potential addition raises the. issue of
whether this test procedure may be substituted for the pre-
viously established (and still effective) BOD 5 test procedures
in establishing, monitoring and enforcing biochemical oxygen
demand limitations in NPDES permits.
Answer
The 30D 5 carbonaceous test may not be used to establish,
monitor or enforce BOD requirements in NPDES permits for
publicly owned treatment works under the current secondary
treatment regulations.
Discussion
For permits issued pursuant to the revised NPDES regula-
tions, specification of monitoring requirements is determined
pursuant to S122.20 of those regulations. (See 44 Fed. Reg.
32910, June 7, 1979.) Section 122.20(c)(4) provides that
when a method approved under 40 CFR Part 136 was used in
developing the applicable standard or limitation, the permit
must specify the same method for monitoring by the permittee.
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—3—
We presume that the BOD5 tests published in Part 136 were the
tests used in developing the Part 133 limitations. Therefore,
the same method must be specified in any new secondary treat-
ment permit. /
Where a permit was issued prior to the applicable date of
revised S122.20(c)(4), the permittee’s monitoring requirements
are of course already established, and S122.20(c)(4) is not
controlling. However, here also the proposed BOD5 carbonaceous
test procedure may not be substituted for existing permit re-
quirements for monitoring BOD5. For those permits, whether the
proposed BOD5 carbonaceous test procedure may be substituted
for existing BOD5 test procedures in connection with the
secondary treatment requirements depends upon whether the
proposed Part 136 test procedure sures the same parameter as
is limited in the permit pursuant to Part 133. Is the Part 133
HOD 5 parameter the same parameter as that which is measured by
the proposed Part 136 BOD5 carbonaceous test procedure?
This is a technical, not a legal, question, but it con—
trols the legal result. Our understanding is that HOD 5 and
BOD 5 carbonaceous are distinct parameters. Therefore, the
BOD5 carbonaceous test procedure cannot be used under an
existing permit to measure a municipal treatment plant’s
compliance with the secondary treatment BOD 5 requirement
expressed in Part 133.
Biochemical oxygen demand (BOD) is explained in the
statement of EPA’s proposed BOD carbonaceous test procedure,
Appendix V to the Preamble to the proposed Part 136 amend-
ments, 44 Fed. Req . 69464 at 69564 (Dec. 3, 1979), as follows:
The biochemical oxygen demand (BOD) determina-
tion is an empirical test in which standardized
laboratory procedures are used to determine the
relative oxygen requirements of wastewaters, ef flu-
ent, and polluted waters. The test measures the
/ The secondary treatment regulations were promulgated two
months earlier than the Part 136 regulations. (Part 133 was
promulgated August 17, 1973; Part 136 was initially promulgated
October 16, 1973.) The operative facts, however, are that the
test method be used for developing the standard and that the
method be approved under Part 136. It is not relevant, for
purpose of the Sl22.20(c)(4) requirements, that the approval
in Part 136 occurred after use of the method in developing
the limitation.
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—4-
oxygen required for the biochemical degradation of
organic material (carbonaceous demand) and the oxygen
used to oxidize inorganic material such as sulf ides
and ferrous iron. It also may measure the oxygen
used to oxidize reduced forms of nitrogen (nitrogenous
demand) unless oxidation of nitrogenous compounds
is prevented by an inhibitor.
As the quoted statement indicates, a wastewater’s
oxygen demand may consist of distinct components, a carbon-
aceous demand component and a nitrogenous demand component.
The carbonaceous BOD test inhibits the nitrogenous component
and measures only the remaining, carbonaceous portion of the
total BOD of the effluent. Thus, it is clearly a distinct
measure of effluent quality. Since Part 133 specifies BOD
without qualification, the more limited carbonaceous test
cannot, consistently with the regulation, be substituted
for the BOD test which may measure both components.
- we are aware that insistence on the use of the conven-
tional DOD methodologies has been called ‘legalistic’ and
unresponsive to the realities of DOD testing. Proponents
of the use of the carbonaceous BOD test point out that when
untreated domestic wastewater or industrial wastes are tested,
the microorganisms responsible for rtitrification grow slowly,
so that nitrification usually does not occur until five or
more days after the start of a DOD test. ‘This apparently
is one of the major reasons why 5 days was set as the standard
incubation time in BOD tests.’ Young, ‘Chemical methods for
nitrificatjon control,’ 34 Journal WPCF 637 at 638 (1973);
see also Metcalf & Eddy, Inc., Wastewater Engineering ,
Collection, Treatment & Disposal , McGraw—Hill, Inc., 1972,
57 Eating that it normally takes from 6 to 10 days for
the nitrifying bacteria to reach significant numbers and to
exert a measurable oxygen demand.
In contrast, in effluent from biological treatment
units nitrifying organisms exist in sufficient numbers that
nitrification proceeds more rapidly in the BOD test and can
account for a major part of the measured 5—day DOD. See
Young, supra , at 638. Rence, the argument goes that the
traditional five day BOD test measured only the carbonaceous
BOD but in the partially nitrified effluent from a modern
plant the test also measures nitrogenous BOD, with the result
that compliance with the guidelines and permit BOD requirements
requires, greater DOD remova is than intended by the drafters
of the original requirement.
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We have been shown nothing in the record of the secondary
treatment guidelines to indicate that the BOD requirement of
the regulations was meant to be limited to the carbonaceous
component. The preamble to the proposal of secondary treat-
ment information states that the level of effluent quality
is based on a sampling of performance data for well designed
and operated secondary treatment works. See 39 Fed . .
10642, 1973. Those samples may also have involved pai iTal
nitrification, yet the traditional SOD methods were presumably
used to test them. Since the data base for the secondary
treatment requirements was developed with the conventional
BOD test, a departure from that test to measure BOD compli-
ance would be an unauthorized departure from the BOD require-
ment itself. That requirement may only be changed by amending
the Part 133 regulation which establishes the requirement.
Portions of the preamble to the proposed Part 136
revisions suggest that the carbonaceous BOD test should be
employed for permit writing and monitoring. See, !. “
44 Fed. Rey . 69464 and 69564. If the carbonaceous BOD test
procedure LS included in final regulations revising Part 136,
the preamble to the promulgation should clarify the status
of the test procedure.
Nitrification can impact the oxygen resources of a
receiving water body. Therefore, it is appropriate to
recognize nitrogenous oxygen demand as part of the total
oxygen demand of the waste. On their face, the Administrator’s
‘secondary treatment regulations recognize the total oxygen
demand of municipal treatment plant effluents. Use of the
carbonaceous BOD test, which measures a distinct, more
limited parameter, in connection with the Part 133 regula-
tions is not authorized.
cc: Martha Steinkamp, Region VII
Alan B. Rais, WE—547
Alan F. Cassel, WH—547
Robert B. Medz, RD—680
Dr. Robert Booth, EMSL
-------
I I
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN 5 1980
OFFICE OF ENFORCEMENT
n—80—5
MEMORANDUM
SUBJECT: Incorporation of Pretreatment Program Compliance
Schedules Into POTW J ES Permits
FROM: R. Sarah Compton
Deputy Assistant
for Water Enforcemdñt (
TO: Regional Administrators
As you know, the General Pretreatment Regulation (40
CFR Part 403) requires certain qualifying publicly owned treatment
works (POTWa) to develop local programs to ensure compliance with
pretreatment standards by nondomestic sources discharging into
POTWs. The success of the National Pretreatment Program depends
on the timely development of these local programs, which form the
heart of the national pretreatment effort. However, development
of local programs is not likely to proceed expeditiously without
first including compliance schedules for program development in
municipal NPDES permits. The purpose of this memorandum is to
re—emphasize the extreme importance of including these schedules
in all qualifying POTW permits.
Current Status and Policy
POTWs should begin program development by the sununer
of 1980 in order to meet the July 1, 1983 deadline for program
approval. Inclusion of a compliance schedule in the POTW’s
permit is the major impetus for program development. A recent
survey of the Regional Offices indicates that only 17.5% of
qualifying State and EPA—issued permits contain the requisite
schedule. We need to step up our efforts to include compliance
schedules in permits this summer if the 1983 deadline is to be
met.
A number of permits have recently been reissued without
compliance schedules. We would like these permits to be revoked
and reissued or modified to insert a schedule. The Regional
Offices should ensure that all appropriate POTW permits expiring
this summer and% fall are reissued with the required compliance
schedule. The Region should use its discretion in determining
-------
—2—
whether permits with expiration dates beyond Fall should be
revoked and reissued or modified to include a compliance schedule.
In making this determination, it is obviously relevant to
consider the amount of time a particular POTW is expected to
need to develop, a pretreatment program as well as the Region’s
available resources and existing backlog.
Many of the POTW5 of concern are located in NPDES States.
The vast majority of these States have existing authority to
reissue or modify POTW permits to incorporate pretreatment
requirements. These States should be encouraged to exercise that
authority and include compliance schedules in expiring or modified
permits rather than merely incorporating modification clauses
requiring permit reissuance or modification following State
pretreatment program approval. It is crucial that all schedules
issued by both NPDES States and the Regional Offices provide the
shortest reasonable time for compliance. Where initial work on
developing a pretreatment program has been completed prior to
issuance of a schedule it is not necessary for the schedule to
provide a full 2—1/2 years for program development.
A few Regions have questioned the effect of section 301(h)
of the Clean Water Act on local pretreatment program development.
A municipality receiving a 301(h) modification must have an
approved pretreatment program within 18 months after receiving
the modification. If any 301(h) deadline proves to be in conflict
with the July 1, 1983 deadline of the General Pretreatment
Regulation, the earlier of the two deadlines will apply. In all
cases, the July 1, 1983 deadline will be the latest date by which
local pretreatment programs must be approved.
Need For Resource Redirection
The goal of incorporating pretreatment compliance schedules
into all municipal NPDES permits that require them should be
given high priority in all Regions. As noted in the F! 81
workload model, a trade—off has been made between pretreatment
and certain BAT permitting activities, resulting in a reprogram-
ming of positions from the direct discharge program to the
pretreatment program. Where possible, we suggest that Regional
Offices anticipate this shift and begin redirecting personnel
this summer. The increased burden on EPA’S resources now will
yield a far smaller burden in the future when local programs
become fully operative and the scheme of the National Pretreatment
Program is finally realized.
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—3—
If you have any questions please feel free to contact Nancy
Hutzel or Bill Diamond in Headquarters Permits Division (8—755—0750).
cc: Enforcement Division Directors, Regions I-X
Permits Branch Chiefs, Regions I—X
NEIC
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iB I?4
UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY
____ WASHINGTON. D.C. 20460
U4 2 5
OFFICE OF ENFORCEMENT
MEMORANDUM
n—80—7
SUBJECT: Writing NPDES BAT Permits in the Absence of
Promulgated Effluent Guidelines
TO : Regional Enforcement Division Directors
NPDES State Directors
Director, National Enforcement Investigations
Center (NEIC)
FROM : R. Sarah
Deputy Assistant •nist tor
for Water Enforcement (EN—336)
We are fast approaching the time when we must begin to
issue BAT permits to control discharges of toxic pollutants.
These permits must ensure achievement of BAT control as early as
possible but in no event later than July 1, 1984. As provided in
40 CFR 122.64 (published at 45 FR 33342 on May 19, 1980), no
.permit issued to a primary industry discharger may be set to
expire after June 30, 1981 unless the permit requires achievement
of BAT control by the statutory deadline.
EPA’s Effluent Guidelines Division is developing national
BAT effluent guidelines under section 304(b) of the Clean Water
Act for the pr n.axy industries. However, due to t ie complexity
of the task, guidelines in some industries may not be published
in final form by the time permits in those industries must be
written. Therefore, we must prepare to issue some BAT permits
on a case—by—case basis, using our best professional judgment
(BPJ), as authorized by section 402(a)(1) of the Clean Water
Act. Case—by—case permits issued prior to June 30, 1981 must
contain reopener clauses. See 40 CFR 122.62(c).
According to the phase-in of the new NPDES application form
(122.53(c)), the first applications with toxics testing data will
be due in September 1980 of this year. (However, extensions of
time to submit applications and toxics data are available in some
cases — see table in Consolidated Permit Regulations, 45 FR
33443, May 19, 1980). The Revised Second Round Permits Policy,
discussing timing of applications and permit issuance, is presently
being drafted by my staff and will be distributed to EPA Regions
and States in July 1980. Attachment 1 to this memorandum outlines a
suggested schedule for issuing BAT permits as applications begin
to come in. The schedule is designed to correspond to expected
promulgation dates of BAT effluent guidelines, which are listed
in Attachment 2.
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—2—
Althoughwe have begun to prepare to write case—by—case
permit limits in the absence of guidelines, much work still needs
to be done. Some of the tools necessary to do the job have been
or are being developed by EPA Headquarters. These include:
1) New permit application regulations and forms requiring
primary industries to test their process wastewater discharges
for most or all of the 129 toxic pollutants (17 industries must
test for all 129): Promulgated on May 19, 1980 as 40 CFR 122.53
(45 FR 33336).
2) The Treatabi]ity Manual compiling data on the removal of
toxic pollutants from industrial discharges by particular
technologies and associated costs: Preliminary edition already
distributed to Regions and States for comment; workshops on use
of manual held in February 1980; much expanded edition to be
distributed to Regions and States for use in early September,
1980; Notice of Availability to general public in September 1980.
- 3) NPDES Best Management Practices (BMP) Guidance Document:
Draft currently available to the public; formal comment period
closes on July 21, 1980.
4) BCT Cost Comparison Guidance Manual: Distributed in draft
to Regions and States in June 1980.
5) Biomonitoring Protocol Manual: Preliminary draft made
available for comment in May 1978; final, substantially revised
manual to be distributed to Regions and States in July 1980;
Notice of Availability to general public in August or September
1980.
6) Section 311/402 CoordInation Guidance Manual: P0 be
distributed to Regions and States in draft by October 1980.
The documents listed above will provide basic tools for
permit writers. But much more is needed to deal with the new
and complex area of toxics permitting. We are suggesting a
“two—pronged approach in preparing to issue BAT permits when
applicable guidelines have not been promulgated.
1) Designate contacts in EPA Headquarters to answer questions
from the Regions and States on the Headquarters—developed guidance
documents. Workshops with the Regions and States will be scheduled
to discuss these documents (late Summer or Fall 1980), and a video-
tape is being prepared on the Treatability Manual. Technical staff
of the Industrial Permits Branch, OWE, and of the National Enforce-
ment Investigations Center in Denver will assist in specific permit
and hearing cases when requested by Regional or State permitting
staff. Mr. William Jordan, Chief, Industrial Permits Branch, will
coordinate specific case support (202—426—7010). Other contacts
for the guidance documents are listed in Attachment 3.
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-3—
2) Establish industry—specific teams for priority industries.
Specifically, we need to develop the capacity to use any available
expertise to write particular permits. This requires all of us
to pool our resources and share our expertise and experience with
one another. This second part of the “two-pronged effort is
discussed further in the following paragraphs.
As a first step, we must identify permit writers in EPA
Headquarters, EPA Regions and States who are experts in particular
industries. We can then establish teams of experts for these
industries. These teams could develop initial BAT permits in
their industries and circulate these permits as models or samples
to other Regions and States. In addition, all Regions and States
could seek help from or share information with the teams.
Further assistance could be obtained from the Office of Research
and Development and from NEIC staff. Project officers in the
Effluent Guidelines Division can also serve as consultants to
these industry teams. The result will then be a communications
network whereby any permit writer would have sample permits for
the priority industries as well as active assistance available to
help write difficult permits.
I am asking each Region and State agency to submit the
names of any staff members who have developed expertise in
particular industrial areas and would be willing to contribute
substantial time to a team effort as described above. Please
indicate the area of expertise. We are particularly interested
in hearing from experts in the industries listed in Attachment 4.
The industries in Attachment 4 have been selected by con-
sidering several criteria. These are:
(1) The number of GC/MS fractions of organic toxic pollutants
which each industry must sample and analyze under .the new NPDES
application regulations (40 CFR 122.53 (d)(7), 45 FR 33454,
May 19, 1980);
(2) The currently expected promulgation date of the BAT effluent
guideline for each industry (see Attachment 2);
(3) A somewhat subjective assessment of the national or
regional significance of the industry;
(4) The number of dischargers in the industry; and
(5) The extent to which toxic pollutants are discharged by the
industry.
Each industry was rated for each factor by a scoring system,
as shown in Attachment 5. A total of 9 or more points resulted in
listing an industry in Attachment 4.
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—4-
In determining BAT limits in the absence of guidelines,
permit writers will also need to determine that the limits which
they set are economically achievable. (“BAT” means “best available
technology economically achievable ” (emphasis added).) We are
considering developing guidance in this area. We need to receive
suggestions as to what type of support would be most useful to you.
Please submj.t the names of staff members who are acquainted with
the problems in making economic achievabi]jty determinations and
who have suggestions for appropriate guidance.
I am interested in your comments on these proposals. Are
there other actions we should be taking? Is the rating system in
Attachment 5 adequate? Are there other industries we should be
focusing upon? I urge you to provide us with your comments by
Friday, July 18, 1980.
Please address your response to Mr. William Jordan, Industrial
Permits Branch Chief (EN—336), Office of Water Enforcement, 401 M
Street, S.W., Washington, D.C. 20460, 202—426—7010. Call me
(202—755—0440) or Bill if you have any questions.
Attachments
cc: Steven Reznek (RD—681)
Steven Schatzow (WH—551)
Roy Gamse (PM-219)
Jim Rogers (A—131)
Robert Schaffer (WH—552)
-------
Attachjnent 1
Schedule for Actions concerning
Issuance of BAT Permits
June 1980 Request EPA Regions and States, NEIC, and other EPA
offices to appoint members for Industry—Specific
Teams.
July Complete Designation of Industry Specific Team
Members.
Preliminary Treatability Manual Available.
September New application form addressing toxic pollutants must
be submitted by permittees whose current permits
expire in December 1980, beginning the large—scale
submissions of the new form. (Detailed schedule of
new application submission to be discussed in Revised
Second Round Permits Policy in July 1980.)
Revised Treatability Manual Available
June —
October Guidance Documents (e.g., BCT Cost Manual, Biomonitoring
Proctoco], 311/402 Coordination) available for Regional
and State Review.
BAT Permit Issuance
October, 1980
— June, 1981
Issue permits as follows:
1. If final guidelines are promulgated : Issue BAT
permit as expeditiously as possible; permit will
not need reopener clause.
2. If final guidelines are not promulgated, but
are expected to be promulgated by June 30, 1981
(see Attachment 2):
(a) Issue short—term permit, with reopener
clause, to expire no later than June 30,
1981. Reopen permit to incorporate
guideline if issued before June 30, 1981.
If guideline is unexpectedly delayed
beyond June 30, 1981, proceed to issue BAT
permit using best professional judgment as
described in paragraph (3) below; or
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-2—
(b) Under section 558(c) of the Administra-
tive Procedures Act for Federal permits
(and equivalent State law, if any,
for State permits), allow current permit
to expire but remain in effect by
operation of law. Issue next permit
when guideline is promulgated, except:
if guideline is unexpectedly delayed
beyond June 30, 1981, proceed to isssue
BAT permit using best professional
judgment as described in paragraph (3)
below.
3. If final guidelines are not promulgated, but
are expected to be promulgated after
June 30, 1981 (see Attachment 2):
Issue BAT permit, using best professional
judgment aided by permit application, draft
Development Documents, Treatability Manual,
proposed guidelines, assistance of expert
teams and other available information.
Reopener clause is required.(Note: NPDES
regulations allow issuance of short—term
permits expiring no later than June 30, 1981.
However, that approach is not recommended,
since no benefits will result from delaying
issuance of BAT permit until June 30, 1981
unless guideline is promulgated by June 30.)
Tuly 1981 Continue to issue permits, working to eliminate
backlog as well as to process new applications.
Use guidelines if promulgated; otherwise use best
professional judgment. No reopener clause is
required.
-------
tachmertt 2
Categories of Industries (grouped for con enience according to short—tex
permit expiration deadline: which applied under the original Second Rout
Permit Policy)
Group A:
Short—term permits expire no later
than 9/30/80
Timber Products Processing
Leather Tanning and Finishing
Steam Electric Power Plants
Petroleum Refining
Iron and Steel
Expected final guideline
(as of 6/20/80)
11/80
1/81
3/81
5/81
8/81*
Expire no later than 3/31/81
Group D:
Inorganic Chemicals
Textile Mills
Pulp and Paper
Rubber Processing
Organic Chemicals
Plastic and Synthetic Materials
Expire no later than 6/30/81
2/81
4/81
6/81
Par. 8 **
uncertain *
uncertain *
Coil Coating
Foundries
Porcelain Enamel
Auto and other Laundries
Photographic Supplies
Pesticides
Pharmaceuticals
Aluminum Forming
Electric and Electric Components
Electroplating
Mechanical Products
Battery Manufacturing
Copper Forming
Adhesives and Sealants
Explosives Manufacturing
Soaps and Detergents
Gum and Wood Chemicals
Plastics Processing
5/81
7/81*
7/81 *
8/81*
8/81*
8/81*
8/81*
9/81 *
11/81*
11/81*
11/81*
11/81*
12/81*
Par. 8 **
Par. 8 **
Par. 8 **
Par. 8 **
Uncertain*
* Guideline is expected to be promulgated after June 30, 1981.
** Guideline will not be promulgated, based on paragraph 8 of the
NRDC Settlement Agreement; present regulations are adequate.
Group B:
Group C:
Expire no later than 12/31/80
Paint and Ink
Coal Mining
Ore Mining
Printing and Publishing
Nonferrous Metal
4/81
6/81
7/81*
11/81*
12/81*
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Attachment 3
Guidance Document Contacts
Guidance Document Contact Person Telephone Number*
1. NPDES Application Fanny Knox 426—7010
Form Dov Weitinan
2. Treatability Bill Chang 426—7035
Manual Gail Goldberg
3. NPDES Best Management Rap Thron 426—7010
Practices Guidance
Document
4. BCT Cost Comparison Tom Laverty 426-7010
Guidance Manual
5. Biomonitoring Bruce Newton 426—7010
Protocol Manual Rick Brandes
6. Section 311/402 Dov Weitinan 426—7010
Coordination Manual Allen Danzig
* Use FTS or area code 202 as appropriate.
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Attachiitent 4
Categories For Industry Teams
Coal Mining
Electrical Products
Electroplating
Inorganic Chemicals
Iron and Steel
Mechanical Products
Nonferrous Metals
Ore Mining
Organic Chemicals
Pesticides
Petroleum Refining
Plastics and Synthetics
Pulp and Paper
Stean Electric Generating Plants
Textiles
Timber Products
-------
?PJNALT JJIDUSTP.IES BAT/ aP i riloalTilS NATIIP
“Attachment 3”
Induntriel
Cat c&orv
tie. of CC(IIS I Effluent Guideli 9 s
Fractions Availability Dsie_
Natiosia1!Reg onaL
Slinificance
Direct ,I Organic Pol1u ant
Diecharier Occurrence
otel
Ranking/Score
2 I
2 .1
3
I
2
2
1
3
3
I
2
I
2
2
3
3
2
3
1
1
2
2
3
I
2
I
2
2
3
1
2
3
3
3
3
2
3
3
3
1
3
2
3
1
2
2
3
2
3
3
.1
I
2
2
3
•3
I
2
2
I
2
I
2
I
3
1
I
3
Adhesives
Aluminum Form.
Auto/Laundries
Battery Nh
Coal Mining
Coil Coating
Copper Form.
F.l.ctric Prod.
Electroplating
Explosive Hf r
Foundries
Gum & Wood
Inorganic
Iron & Steel
Leather
Mechanical Prod
Nonferrous Ilir
Ore Mining
Organic Chem.
Paint & Ink
Pesticides
Petroleum Eel.
Ph ,ara.aceutical
Photo supplies
Plastic $ Syn.
Plastic Process
Porcelain
Printing
Pulp & Paper
Rubber
Soaps
Steam Electjic
Textiles
Timber Produeti
J 1 — Hay 19. *980 PR (43 PR 33454); 4 fractions•
2 — before 6/el 1 6/Il — 9/el — 2; after 9/81
3 — National • 3, Regional — I; other — 0
4 — dOO 1, 500—1000 • 2, >1000 — 3
S — cS—I., 6—13 — 2, >13 • 3
0
0
0
0
3
0
0
0
3
0
0
0
3
3
I
0
I
1
3
0
3
3
I
0
3
1
0
0
3
1
0
3
3
I
I
1
I
I
3
I
I
3
3
I
1
2
3
1
3
1
2
-2
I
I
I
1
£
I
3
1
I
1
3
1
3
1
1
2
2
1
1
3
1
1
2
I
I
I
1-
I
I
2
3
3
1
3
2
I
1
2
1
2
1
I
I
I
I
1
2
6
7
7
6
13
S
6
Ii
12
4
I
6
9
Ii
I
11
11
9
14
7
10
9
I
7
12
7
6
10
I
S
10
9
IA
Organic Cues.
Coal Mining
Electroplating
Plastics I Syil.
Electric Prod.
Iron and Steel
Mechanical Prod.I
Nonferrous Hf r
Pestle ides
Pulp I Paper
Ste .. Electric
Timber Products
Inor ganics
Ore Mining
Petroleum Ref.
Textiles
Foundries
Leather
Phsrsaaceut led
Rubber
Aluminum For..
Auto/Laundries
Paint £ Ink
Photo Supplies
Plastic Process
Adhesives
Battery Hf r
Copper Form.
Gum I Wood
Porcelain
Printing
Coil Coating
Soaps
‘4
*3
*2
U
II
II
II
1 *
I0
*0
*0
10
9
9
9
9
I
8
I
I
7
7
7
7
7
6 1
6
6
6
a
6
S
3
£
3, 3f.. 2. 2 or 11. — 1
—3
-------
n-80-3
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. Z0460
F
JUL 10 j380 O?flCE CF ENFORCEMENT
MEMORANDUM
SUBJECT: Major Municipal Permitting in F’f 81
TO: Regional Administr ore
Regions l—X
FROM: Jeffrey G. Mil e $4
Acting Assis 4 n 4 dinIni strator
for Enforc t (EN-329)
EPAs Operating Year Guidance for Ft 81 outlines Agency—wide
and program specific priorities that will be addressed during
FY 81. For the Office of Water Enforcement the guidance states,
Four aspects of Agency permitting activities are of
high priority in Ft 81, namely: (a) the issuance of
hazardous waste site permits; (b) the control of toxics
through issuance of NPDES permits to primary industries,
major secondary industries, and major POTW’s, especially
those requiring pretreatment programs; (c) the expedi-
tious issuance of energy—related permits for all media;
and Cd) consolidation of permit programs under RCRA.
the Safe Drinking Water Act, the Clean Water Act, and
the Clean Air Act.
Included in the first level priorities for Headquarters and
Regions under the NPDES Permits Issuance section is the statement
that “Toxics will be controlled by issuing permits to primary
industries, major POTW’e, and major secondary industries; by
implementing the pretreatment program; and by reviewing State
activities.” In the Spring of 1979, the Office of Enforcement in
preparing the Ft 81 budget estimated that virtually all the
permitting resources would be assigned to the issuance of “second
round” BAT—toxics permits to industrial discharges.
This Strategy was in keeping with the Second Round Permit
Policy and short—term permit expiration dates. Under this strategy,
BAT permit issuance was to begin in September 1980. However, delays
in BAT guideline promulgation have necessitated a change in that
policy. The strategy for permitting BAT major/minor primary
ustries now has shifted toward Fiscal Year 1982, and the current
;et planning for 82 reflects that shift. June 30, 1981 is
deadline after whi’ch all permits written for primary industries
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—2—
muSt contain BAT and BCT, whether or not applicable effluent
limitations guidelines have been promulgated £40 cPR
122.64(b) 45 FR 33452, May 19, 1980]. Because of this deadline,
‘inphasis on issuing BAT permits for primary industries either
...sing promulgated effluent limitations guidelines or best pro-
fessional judgement will begin the last quarter in FT 81 and
continue through FY 82.
This series of events frees those resources originally
available for issuing industrial permits and provides a timely
opportunity to put greater emphasis than originally planned on
permitting of major municipalities in Ti 81. In addition, a
redirection now of permitting activities to major municipalities
supports FT 81 plans for increased emphasis on municipal enforce-
ment. Accordingly, I am asking that the Regional permitting units
assign a high priority to the issuance of permit. to major
municipalities in FT 81.
As an example of the municipal permitting workload, a
July 2, 1980 Permit Compliance System (PCS) printout for major
municipal permits issued by EPA listed a backlog of 499 expired
permits and 67 which will expire in the remainder of PT 80 and
through FT 81. These statistics from PCS indicate an alarming
backlog of expired permits which must be isBued by the end of FT
81 to meet the July 1, 1983 best practicable waste treatment
technology deadline • The BAT/BC? permit issuance to industrial
dischargers in FT 82 will be respurce intensive, since some
Dermits will be developed without effluent guidelines. For this
eason, it is important in FT 82 that permit writing units not
divert their limited resources to deal with permits other than
the major municipals which expire in FT 82 and the primary
industrials.
-. The Office of Water Enforcement is also emphasizing a
stepped—up effort to incorporate pretreatment compliance schedules
in municipal permits. The Deputy Assistant Administrator for
Water Enforcement in a June 5, 1980 memorandum to you emphasized
the need to incorporate compliance schedules into municipal
• permits this sw er in order to allow the municipalities suffi-
cient time to comply with the July 1, 1983 deadline for pretreat—
• ment program development. As that memorandum explains, some
permits may need to be revoked and reissued or modified in order
to incorporate a compliance schedule.
The Office of Water Enforcement is developing the FT 82
budget on the basis that 80% of all major primary industry permits
will be issued in FT 82. Therefore, I encourage you to direct
permitting activity in your Region to begin the reissuance of
major primary permits in the last quarter of FT 81 and to focus
throughout the year on the backlog of expired major municipal
permits and pretreatment compliance schedules.
cc: Enforcement Division Directors
Region I — X
Brian Molloy
Thomas Gallagher, NEIC — Denver
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n -30
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASH)NGTON. D.C. 20460
JUL 1 5 1380
MOR NDUM
SUBJECT: Suspension of portion of def4’ 4tion of • t of th.
United States” in Consolidated Permit Regulation.—..
ACTION UM
FROM: , Acting Assistant A ”nnistratcr
(EbT—329
TO:
Attached is a Federal Register notice suspen !ing the effect
of the last sentence in the definiticn of “Waters of the United
States” which appears in the Hay 19, 1980 Consolidated Permit
Regulations. The sentence provides that a wastó treatment
system, ordinarily excluded from the definition of “Water, of t
United States,” is not excluded if it is constructed in wetlands
or by impounding waters of the United States • The suspension
results from requests by the Utility Water Act Group (UWAG) and
the American Pet’roleum In titute (API). We agree with them the
language of the final regulation is overly broad and should be
suspended while we consider amendments. If read literally, it
could require many power plants and oil refineries (among other
industries) to apply for NPDES permits for discharges into thei:
ash ponds and treatment lagoons. We did not intend this result
The API has filed a motion in the Western District of
Louisiana for a Temporary Restraining Order and Prel 4 -i inary
Injection against EPA implementation of this regulation, among
others. The motion will be heard on Thursday, July 17, 1980.
notice is signed immediately, we are confident that we can
persuade the Court that the portion of the motion dealing with
the definition of “Waters of the United States” is moot.
RECOM NDATION: I reconunend that you sign the attached notice
suspending this provision of the Consolidated Permit Regulatior
for
tor
Attachment
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ENVIRONMZNTAL PROTECTION AGENCY
40 CFR Part 122
Consolidated Permit Regulations
AGENC!: Envirora enta1 Protection Agency (EPA)
ACTION: Suspension of portion f final rule
SUMKAP!: This action suspends a portion of the definition of the
term, waters of the United States in the Consolidated Permit
Regulations pending further rulemaking.
EFFECTIVE DATE: [ Date of publication in the Federal Register.]
cOR FURTHER INFORMATION CONTACT:
Peter Homes
Office of General Counsel (A—13l)
Was’ ington, D.C. 20460
(202) 755—0?53
SUPPLEMENTARY INFORMATION: On May 19, l9BO, EPA issued final
consolidated permit regulations under the Resource Conservation and
Recovery Act, the Safe Drinking Water Act, the Clean Water Act, and
the Clean Air Act.. Included in those regulations was a definition
of the term waters of the United States.u 40 CFR 5122.3. This
term governs the applicability of the National Pollutant Discharge
limination System’ (NPDES) permit system under the Clean Water
Act.
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-2—
The definition amended the previous definition, formerly
appearing at 40 C?R S122.3(t) (1979) of the term navigable waters.’
This prior definition had specified that:
• • • waste treatment systems (other than cooling
ponds meeting the criteria of this paragraph) are
net waters of the United States.
The May 19 regulations provided:
Waste treatment systems, including treatment Ponds
or lagoons designed to meet the requirements of
cWA (other than cooling ponds as defined in 40 R
S423.ll(m) which also meet the criteria of this
definition) are not waters of the United States.
This exclusion applies only to nanmade bodies of
water which neither were originally created in
waters of the United States (such as a disposal
area in wetlands) n&r resulted from the iinpoun& ent
of waters of the United States. [ 40 CFR 5322.3,
definition of waters of the United States,’
FR 33424, May 19, 19803
The Agency’s purpose in the new last sentence was to ensure that
dischargers did not escape treatment requirements by impounding
waters of the United States and claiming the impoundment was a
waste treatment system, or by discharging wastes into wetlands.
Petitions for review were filed in several courts of appeals
by industries and an environmental group seeking review of the
May 19 consolidated regulations. Certain industry petitioners wrote
to EPA expressing objections to the language of the definition c
waters of the United States. They objected that the language
the regulation would require them to obtain permits for discharges
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-3—
into existing waste treatment systems, such as power plant ash
ponds, which had been in existence for many years. In trany cases,
they argued, EPA has issued permits for discharges from, not into,
these systems. They requested EPA to revoke or suspend the last
sentence of the definition.
EPA agrees that the reg” tion should be carefully re—examined
and that it may be overly broad. Accordingly, the Agenc7 is today
suspending its effectiveness. EPA intends promptly to develop a
revised definition and to publish it as a propose&rUle for public
comment. At the conclusion of that rulemaking, EPA will amend the
rule, or terminate the suspension.
A TEORIT!: This suspension is issued under authority of the
Water Act, 33 V.S.C. S1251 et seq .
Dated:
1. In 40 CFR S122.3, in the definition of “Waters of the
Unite6 States, the last sentence, beginning “This exclusion
applies . . ., “ is suspended until further notice.
I
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July 17, 1980
• Martha Girard
• Director, Executive Agencies
Office of Pederal Register
1100 L Street, N.W. -
Washington, D.C.
;Dear Ms. Girard:
• This is to request expedited publication of the attached
• suspension of a portion of the final consolidated permit
regulations published May 19, 1980. EPA believes a provision
of one of the definitions may be overly broad and wishes to
promptly suspend that provision pending a reex 4 nation.
Inasmuch as that provision was only recently reviewed in the
light of new litigation and because it will go into effect
on July 18, 1980, it is necessary to request the earliest
possible publication of the suspension.
Sincerely yours,
-
Director, Permits Division
Attacbma t
EN—336 :F!Eal l: cnm:X5 545:7/17/8o
bcc: Alan Eckert, OGC
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rz.’.s M. A ninist tor,
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. ‘—v_•• ‘ “ ‘ ‘ 1 )T
t_ L * J — . •
.. !‘y r: e .affr ’ . Mil)er. I Acti:-. si ar . J inistrat ’r
fcc f:r t cf the TJ• Ljrc • r 1 t ctjc) A! .1C ’.
2. X c IS cy to SL:se ar Ciract p1e 1 zatior.
of tha •Z:tic ’- -C :i t3nt r:sc: 2 1 i ticn ‘ tc ( 2 S) permit
p -:•- £ : .ic.i 4C2 c the C1Ga ter Act.
3. The iç e c - 1E, 19Z0 n zi:e susj snr ir g
the e e .tive.i .zs c the )L -L in the thfir :ior. z.f te s of
th ize St3tes.” E?A ‘: ; o Jv 1ish this r tice in the
Fe 3: . iste-. 7. cc. ’ oZ this tick i attached as Exhibit A.
4. Fcr sevGral nths r ’ staff ar.d staff of EPA’s Regioflal office in
l] s, Te s, have teen en ed in developing a series of ger al
p r its fo: cffshore rillthc in the Gulf of ! - exico. Drafts of theae
‘i2l ha p. 1ish d f in the ed r - i ter
t i i t tt -. - . r ca) p. .- its t:i1 th rize c tC s
-------
‘ ,.: —‘ .: :; :. : 1c : .t
.f .fr ..itti-:; !r.v ct: 1 c t r.s. Onl’i c. s of
S . . .•— —— ..‘ •. • :
— . -— . S. —- S • . . ••••_. •• • .. •_‘• I •._ I.S_ #_ S . .
:. :: . : : v.. L,. re i : : u1tE tjCn th
reprent tives of the reric n Pet 1eun Ir 1 stitute (A?), varic s
oil cc r niez, an envi cr 3r ta1 o 3niz tiors. Several. meetings have
been he1r with represenr. ives of the oil industry including ectings in
D.C., on Fe ruary 6, 1980 ar April 2, 1990. Correspondence
on this r tte: !-. s b en with the firm of Liskow and Lewis, who represent
in this prc eiin . Cn J 1y l , 1980, Wilii m ord n, Chief
of :: e st ia1 P izs Br ch of ry office and reprasentatives of the
R i - .1 cf2 .ce .et in l1a to dvi e A P I ar, tn oil nic of the
cc: t ts c the draft p r it .
6. The i- istato h s directed that offices ar3 regions of A
t e .tep to e;:pa.iite i s nce o l E p.rm1s to offshore facilities. The
d thistr tcr as sp cifical.y dira::ed th t a ge 1 permit te d ’e1cped
for the Gulf of ? : ::ic . This directive is atta&e as Exhibit 3.
I her& y d c1are that the fo:e ing sttsr:ent is a e un er penalty
o per ry.
1 :f frei/ . (: tiller
3ted: 3Uly 16, 1990
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n-SO-b
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
A’”29
FFIC CF £NFCRC MCNT
MEMORANDUM
SUBJECT: Revised NPDES Second Round Permits Policy
TO: Regional Enforcement Division Directors
State NPDES Directors
Director, National Enforcement Investigations
FROM: R. :Compton, (M ..h
Deputy Assistant A4 ’tnist ato
for Water Enforcement
The new consolidated permit regulations (40 CPR Parts
122—124, 45 FR 33280—33513, May 19, 1980) and the accompany-
ing preamble contain several revisions to the NPDES Second
Round Permit Policy. Previous expressions of the policy in the
NPDES regulations of June 7, 1979 (44 FR 32854—32956) and in
Policies and Guidance for Issuing the Second Round of NPDES
Permits to Industrial Dischargers (July, 1978, known as the
Second Round Permits Policy) are partially superseded by the new
regulations. This memorandum outlines the key features of the
new Second Round Permits Policy. Relevant portions of the new
regulations and preamble are attached for your reference.
Continuation of certain other features of the Second Round
Permits Policy is also noted in this memorandum. Finally,
procedures for implementing the new NPDES application require-
ments for existing industrial dischargers are discussed.
A. Issuance of BAT Permits to Primary Industries
1. Short—term BPT permits for all primary industry
dischargers may be set to expire no later than June 30, 1981 .
The original Second Round Permits Policy (pp. 22—26 and
Appendix B) and the June 7, 1979 regulations (40 CFR 122.12(c))
required that any BPT (best practicable control technology
currently available) permit issued to a primary industry discharger
(any of the 34 industries listed in the amended NRDC Settlement
Agreement) must not be set to expire later than one of the
following dates teach of which pertained to several of the
primary industries): September 30, 1980; December 31, 1980;
March 31, 1981; and June 30, 1981. These dates were selected
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—2—
to allow a modest slippage in promulgation of the new BAT effluent
limitations guidelines controlling toxic pollutants and to
account for the time needed to review an application and issue a
permit. Therefore, they were set at 18 months later than the
expected guidelines promulgation dates listed for these industries
in the NR.DC Settlement Agreement. Further delays in guideline
promulgation now necessitate a change in these short—term permit
expiration dates.
The Consolidated Permit Regulations, in 40 CFR 122.64 (45 FR
33452, Attachment 1), now uniformly set the latest allowable BPT
permit expiration date for all primary industry disehargers at
June 30, 1981 (the latest reasonable date in light of the July 1,
1984 statutory deadline for compliance with BAT — best available
technology economically achievable).
The Consolidated Permit Regulations, in 40 CFR 122.62(c) (45
FR 33449, Attachment 2), maintain the pre—existing requirement,
- in compliance with the NRDC Settlement Agreement, that all
short—term BPT permits must contain reopener clauses.
The above changes are discussed in the preamble to S122.62(c)
at 45 FR 33339—40 (Attachment 3).
2. All permits written after June 30, 1981 for primary
industries must contain BAT and BCT limits, as appropriate,
whether or not aoplicable effluent auidelines have been promulgated .
As indicated in the preceding discussion, June 30, 1981 is
the latest reasonable date to wait for BAT guidelines in light
of the July 1, 1984 deadline for complian e with BAT. Therefore,
S122.62(c)(2) (Attachment 2) states that any permit issued after
June 30, 1981, must include effluent limitations and a compliance
schedule to meet the BAT (and BCT, best conventional pollutant
control technoloay, for conventional pollutants) requirements.
These permits are not required to contain reopener clauses, and
they may be issued for a full five years.
This provision is very important. To implement this provision,
permit writers must make case—by—case determinations of BAT and
BCT, under the authority of section 402(a)(1) of the Clean Water
Act, for those industries for which promulgation of guidelines is
delayed beyond June 30, 1981. As in past case—by—case determina-
tions for BPT, the permit writer will be required to use best
professional judgment. (The previously used phrase, best
engineering judgment, is modified to more accurately reflect the
range of technical and economic factors which must be considered
in setting BAT and BCT limits.)
On June 25,1980, I sent to each of you a memorandum outlinin’
our initial plans for handling case—by—case determinations. As
noted in that letter, coordination among experts in EPA Headquarte
EPA Regions and approved NPDES States will be essential in this
effort.
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—3—
As outlined in the June 25 memorandum, we are organizing
teams of State and EPA Regional staff who are experts on certain
industries. My staff has already assembled a list of experts
supplied to us by various States and Regions, and I continue to
solicit your participation on these teams. It is essential that
we begin to use all means at our disposal (e.g., industry teams
and the treatability manual) to begin to control toxic pollutants.
This is a demanding and time—consuming task, but it is an essential
one if we are to succeed in eliminating harmful levels of toxic
pollutants from waters of the United States.
3. Long—term BAT permits may be issued to primary industries
before June 1981, when appropriate, even when effluent
limitations guidelines have not yet been promulgated .
The original Second Round Permits Policy (pp. 24—25) required
EPA permit writers to issue short—term permits prior to issuance
of BAT guidelines. The purpose was to allow permits to expire
early enough so that uniform guidelines—based BAT permits could
then be issued in time for dischargers to construct and startup
necessary equipment by July 1, 1984. States were encouraged, but
not required, to follow this policy. They were allowed the
alternative of issuing long—term BAT permits (using best profes-
sional judgment).
The prohibition against EPA permit writers issuing long—term
permits to primary industries prior to issuance of applicable
effluent guidelines is now rescinded. (See the announcement of
this change in the preamble discussion at 45 PR 33340 (Attachment
3).) However, as required by the NRDC Settlement Agreement,
permits issued prior to June 30, 1981 and before applicable
guidelines have been published must contain reopener clauses.
See 40 CFR 122.62(c). This will ensure that when the BAT guide-
lines are promulgated, those limitations, if more stringent, can
be put in the permit in substitution for the BPJ limits.
It has become clear, as discussed above, that some effluent
guidelines will not be promulgated by June 30, 1981. It may not
be efficient to issue a short—term permit for one year (1980—1981)
and then issue a BAT permit using best professional judgment the
next year. Therefore, some permit writers may choose now to
issue some BAT permits, based on best professional judgment,
in industries where guidelines promulgation will be delayed
beyond June 30, 1981. (Where such delays occur, proposed guide-
lines, in addition to all the other guidance mentioned above,
will.often be available as another source of guidance for the
permit writer.) In general, the fact that we are now two years
closer to the July 1, 1984 deadline than we were in mid—1978,
when the short—term permit policy was established, implies a
greater need to begin issuing BAT permits now to reduce permit—
issuing bottlenecks in 1981. (A general schedule for issuing BAT
permits is contained in the June 25, 1980 memorandum referred
to above.)
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—4—
B. Issuance of BC? Permits to Secondary Industries
Permit writers should continue to focus their present
industrial* permit—writing activities upon secondary industries
to insure compliance with BC? .
Pages 28—34 of the Second Round Permits Policy advised
permit writers to give priority to the issuance of permits to
secondary industries, so that these permits will have been issued
by the time that the intensive issuance of BAT permits begin.
This policy remains in effect.
Two changes in the policy of issuing permits to secondary
industries should be noted:
1. The Second Round Permits Policy advised permit writers
not to issue permits to secondary industries which discharge COD,
phosphorus, or oil and grease until the Agency announced its final
decision whether to add those pollutants to the list of conventional
pollutants. Since the Agency published its decision on July 30,
1979 (44 FR 44501) to add only oil and grease to the conventional
pollutant list all pending secondary industry permits withheld
under this policy should now be issued.
2. For secondary industries that were already covered by
BAT guidelines prior to 1977 (such as the Dairy, Seafood, Fruits
and Vegetables, etc. industries), the Second Round Permits Policy
advised permit writers to either make section 402(a)(1) best
engineering judgment (now called “best professional judgment”)
determinations of BC? or wait for the BAT guidelines review under
section 73 of the Clean Water Act of 1977 (determining whether
BAT passes the BC? cost test) to be completed.
EPA completed its guidelines review on August 29, 1979 (44
FR 50732). EPA determined in the review that BAT for 45 of the
93 reviewed industrial subcategories failed the BC? cost test.
For those subcategories, the existing guideline limitations for
conventional pollutants have been withdrawn. For the remaining
subcategories, BAT passed the cost test. Thus, for those sub—
categories, the existing BAT guideline limitations for conventional
pollutants remain in effect as .BCT guidelines. It should be
noted that for some secondary industry subcategories, guidelines
have never been promulgated.
Since the guideline review is now complete, all permits to
secondary industries should now be issued. Where BCT guidelines
either are withdrawn or have never been promulgated, permit
limits must be set on a case—by—case basis using best professional
judgment.
* As noted in the July 10, 1980 memorandum sent by Jeffrey G.
Miller, Acting Assistant Administrator for Enforcement, to the
EPA Regional Administrators, the issuance of major municipal
permits in Fiscal Year 1981 is also a high priority at the
present time.
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In light of resource constraints and the volume of secondary
permits to be issued within a brief time—period, it will be
difficult to routinely perform (and to defend in hearings)
case—by—case determinations of BCT. Such determinations not only
require comparison of incremental treatment costs divided by
incremental pounds of removal to the average POTW ratio of cost
per pound of removal (the 1979 BAT guidelines review used a
POTW cost of $1.15 per pound of removal), but also require
identification of appropriate treatment technologies prior to the
BCT cost test exercise in cases where BAT guidelines have never
been promulgated.
EPA cannot, in the absence of promulgated guidelines,
blanketly determine that BCT automatically equals BPT where no
BC? guidelines exist. However, EPA is taking certain steps
to assist the Regions and States in issuing second round permits
to secondary industries. These are discussed below.
1. EPA’s Effluent Guidelines Division (EGD) is taking
several actions which will assist permit writers in developing
BCT limits:
a. EGD has reviewed its data for secondary industries
and determined several industries for which BC?
limits are likely to equal BPT if and when the
guidelines are ultimately published. The list of
these industries is contained in Attachment 4.
b. EGD will propose BC? guidelines for the Meat Packing,
Fruits and Vegetables, and Seafoods Industries in 6
to 12 months.
c. EGD will develop revised development documents
for the Dairy and Sugar Refining Industries in 6 to
12 months.
d. EGD will assist in interpretation of BCT guidance or
development documents where requested by EPA Regional
or State permitting offices.
2. EPA’s Permits Division will assist permit writers in
developing case—by—case BCT limits where guidelines are
unavailable by providing the following documents in the next
few months:
a. a treatability manual which identifies treatment
techniques and associated costs.
b. a brief guidance document explaining, with examples,
how to compute the cost per pound removal ratio to apply
the BCT cost test.
As a matter of priority, emphasis should be placed on
developing BCT limits for those industries for which EGD has
promulgated guidelines, developed guidance or draft development
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—6—
documents or determined that BCT will likely equal BPT. BCT
limits for other industries could be developed after these
secondary industries are issued BCT permits. This procedure
would insure that BCT limits are set for the maximum number of
dischargers using the minimum amount of resources possible. Of
course, should a particular permit merit Regional or State
attention, we would be pleased to assist in the development of
permit conditions, regardless of how the permit would be classified
in this informal priority classification.
C. Application Requirements
1. New Application Requirements have been Established for
Existing Industrial Diachargers
40 CFR 122.4(d) and 122.53(d) and Ce) established new
NPDES application requirements for existing industrial dischargers.
The EPA Forms 1, 2b and 2c, which will implement the new require-
ments, are published at 45 FR 33555—79 (May 18, 1980).
40 CFR 122.53(c) contains the schedule for submission of new
applications (45 FR 33442—3, Attachment 5). (Forms are presently
available in each Regional office.) The main point is that any
discharger whose existing permit expires on or after December 1,
1980 must follow the new requirements. Furthermore, any discharger
whose permit expires before that date but who did not already
submit the old application form by April 30, 1980 must submit a
new application form. See the preamble discussion at 45 FR
33336—7 (Attachment 6). This rule applies in approved NPDES
States through 40 CFR 123.13(g) (45 FR 33464, Attachment 7). See
the preamble discussion at 45 FR 33384 (Attachment 8).
Any discharger who has applied before April 30, 1980 but
has not yet been issued a permit need not reapply. However,
before issuing a permit to any primary industry discharger, the
Director must at least have received the information listed in
S122.53(d(7UU (sampling and analysis of process wastewater
for toxic pollutants). See S122.64(b). This information will
be essential to issuing BAT permits to primary industries,
particularly where guidelines have not been issued.
As shown in the schedule in 5122.53(c), EPA is temporarily
relaxing the rule that applications for EPA—issued permits be
submitted to EPA at least 180 days prior to permit expiration.
Those dischargers whose permits expire during the period December 1,
1980 — May 31, 1981, may apply as late as 90 days prior to permit
expiration. This will provide more time for these dischargers to
prepare their applications.
Two types of time extensions for submission of applications
may be granted by the Director on a case—by—case basis.
1. The Director may grant an oral extension to submit an
application until no later than the permit expiration date.
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—7-
2. The Director may grant a written extension of up to 6
months beyond the application deadline for submission of toxic
pollutant analyses and related information. However, the extended
date may in no event go beyond June 30, 1981. Furthermore, it
may be granted only upon a written request stating why this
information could not be submitted in time.
Factors to be considered in deciding whether to grant either
of the above extensions and, if so, how much extension,
include the amount of time needed by the applicant to
collect required data and the Director’s priorities for issuing
permits.
An additonal factor in considering requests for the second
type of extension is an applicant’s ability or inability to
arrange for an available commercial laboratory to perform analyses
for toxic pollutants on time. The applicant must show a good
faith effort in having contacted commercial laboratories as early
as possible. Since the application requirements were published
in the Federal Register on May 19, 1980, applicants whose permits
expire soon should already be making arrangements to have their
process wastewater outfalls sampled and analyzed.
If a complete application is submitted in a timely manner
(i.e., in accordance with regulations) to EPA but EPA fails to
issue a new permit before the existing permit expires, the
existing permit remains in effect under section 558(c) of the
Administrative Procedures Act. See 40 CPR 122.5. If a written
extension to submit toxics data is granted under the second type
of extension listed above, the APA extension will apply if all
parts of the application are submitted within the time required
by the regulations and the Director’s grant of extension. The
procedures on written requests for and approvals of extensions of
time to submit toxics data should be strictly adhered to in order
to clearly establish in each case that a complete and timely
application was submitted.
Many States have provisions similar to 40 CFR 122.5 under
which an existing permit is extended pending administrative
decision on the application for permit renewal. The discussion
in the preceding paragraph applies to these States as well as to
EPA.
2. New Application forms for new sources and new dischargers
and for POTW’s are being developed .
New sources and new dischargers must continue to use the
existing NPDES Standard Form C (or Short Form C, if appropriate)
or the appropriate State form. POTW’s should continue to use
Standard Form A or the appropriate State Form. The Permits
Division is currently developing new forms for these applicants,
which will be Forms 2d (new sources and new dischargers) and 2a
(POTWS) of the EPA Consolidated Application Form. Drafts of these
forms will be made available for comment this Fall.
-------
—8—
Further Information
If you have any questions or coi ents concerning the above
issues, please call me (202—755—0440) or Bill Jordan, Industrial
Permits Branch Chief (202—755—2545). In addition, please let us
know of additional subjects in this area for which guidance would
be useful.
-------
Attachment 1.
40 CTR 122.64 (45 FR 33452): Duration of NPDES Permits
f 1 .U Duration Of $ ffi NPOE$ -
-
(Applicable to State NFO proçam , .’
1ee 1123.7.)
(a) On or before Jun. 30, 1981. any 3
permit lnued tOa discharger in a - - - —
primary industry category Is.. —
Appendix A):
(1) Shall meet one of the following
cond ltions -.
(I) Expire on Jun. 30. 1981: -
111) Incorporat, effluent standards and
limitations applicabl, to the discharger
whlcb ‘save been promulgit.d or
appro’. ed under sections 301(b)(z) (C). -
and (D) , 304fc, 2J, and 3W(a)(2) of CWA
or .
(Ill) Incorporat, the “reopener clause”
required by I 122.82(c)(1) , and effluent-.
limitations to meet the reqnfremea s of
sections 301(b)(2J (A). (C), (D). (E), and
(F)ofCWA_ - . , -
(2) Shall not be written to expire after
• June 30. 1981 unless the discharger has
submitted to the Directo, the
Intorniatl on required by . - . - -
* 122.S3(d)(7)(lj).
(b) After June 30, 1981 a permit may
be issued for the full term if the permit
includes e uent limitations and a
cor p1irnce schedul, to meet the
requ1remen of sections 301(b)(z) (A).
(C), (D). (E), dlrd (F) of CWA. whether or
not applicable effluent limitation,
guidelines have been promulgated or
approved, . -
(c) A determination that a particular
discharger falls within a given industrial
category far purposes of setting a permit
expiration dat. under paragraph (b) of
this section Is not conclusive as to the
discharger’s inclusion in that Industrial
category for any other purpose,, and
does not prejudice any rights to
challenge or change that thdusio at the
time that a permit based on that
determination I. formulated,
-------
40 CPR 122.61(c) (45 FR 33449):
Requjre ent to Use Reopener Clauses
Before June 30, 198]. and to require BAT and BCT Limits After June
30, 1981
122.12 EstabUuPtIng NPOES permit
condit ions.
(Applicable to State NPDES programs,
e I 123.7.)
In addition to the conditions
established wide, * 122 .8(a ), each
oss permit shall include conditions
meeting the following requirements
when annlleahl.
(a) Tecluiology.bas.d effluent
limitation, and standard, basedo
effluent limitaUo s and standards
promulgated under section 301 of CWA
or new source perfor”snc, standards
promulgated n lIle section 301 of CWA,
on cue-by-case effluent limitations
determined wider section 402(aJ(1) of
CWA.oranacombjnati00 0 fthe two, in
accordance with * 1 ’-’3Fornsw
so s or new dIsch gers, thee.
technolo ’ based limitations and
standards are subject to the provisions
af a”-8’ d) (protection period),
(b) Other effluent limitation, and
standards under sections 301.303,303,
307, 318, and 405 of CWA. If any
applicable tmdc effluent sthntard or
prohibition (including any schedule of
compliance specified In such effluent
standard or prohibition) Is promulgated
un’ t er section 307(a) of CWA for a toxic
pollutant and that standard or
prohibition is more stringent than any
limitation on the pollutant In the permit,
the Director shall institute proceedings
under thes. regulations to modify or
revoke and reissue the permit to
conform to the toxic effluent standard or
prohibition. See also I 1 N (a).
c Reopener clause. ’ for any
di arger within a primary Industry
category (see Appendix A).
requirements under section 307(a)(2) of
CWA u follow,:
(1) On or before June 30, 1982(I)U
applicable standards or limitations have
not yet bten prortulgated, the permit
shall include, condition stating that, If
an applicable standard or limitation is
promulgated under sections 301(b)(2) (C)
and (D). 304(b)(2 ) . and 307fa)(2) and that
effluent st.4.,d or limitation is more
stringent than any effluent limitation In
the permit or controls a pollutant not
limited In the permit, the permit shall be
promptly modified or revoked and -
reissued to conform to that effluent -
standard or limitation.
(II) If applicable standards or -
limitations hav, been promulgated or
approved, the permit shall include those
standards or limitations, (If EPA
approves existing effluent limitations or
decides not to develop new effluent
limitations, It will publish a notice in the
Federal Register that the limitations are
“approved” for the purpose of this
regulation.)
(2) After Jane 30. 2981. any permit
Issued shall include effluent limitations
and a compliance schedule to meet the
requirements of sections 301(b)(2) (A).
(C), (D).(E)and(flofCWjq ,w e e, 0 ,
not applicable effluent limitations
guidelines have been promulgated or
approved. These permits need not
Incorporat. the clause required by
(3) The Director shall promptly modify
or revoke and reissue any permit
containing the clause required wider
paragraph (c)(1) of this section to
incorporate an applicable “ t
standard or limitation wider sections
301(b)(2) (C) and (D), 301(b)(2), and
307(a)(2) which Is promulgated or
approved after the permit Is Issued if
that effluent standard or limitation Is
more stringent then any effluent
limitation In the permit. or controls a
pollutant not limited In the permit.
(d) Water qoalfty standards and Stat.
requirementn any requirements In
addition to or more stringent than
promulgated effluent limitations
guidelines or standards under sections
301, 304, 306, 307, 31& and 405 of CWA
necessary tor - . - ...
(1) Achieve water quality a tandards
established under section 303 of CWA
(2) AttaIn or maintain a specified -
water quality through-water quality.
related effluent limits established under
section3 OZofCWA
(3) Conform to the conditions of a
State certification wider sectIon 401 of
CWA which meet the requirements of
* 124.53 when EPA Is the permit issuing
authority however, If a State
certification Is stayed by a court of
competent jurisdiction or appropriate
State board or agency. EPA shall include
conditions in the permit which may be
necessary to meet EPA’s obligation
under section 301(b)(1)(C) of CWA
(4) Cunfoim te applicable water
quality requirements under section
401(a)(2) of CWA when the discharge
affects a State other than the cenhfy ng
Stat,:
(5)-Incorporate any more stringent
limitations, trea ent standards, or
schedule of compII ’ice requirements
established under Federal or State law
or regulations In accordance with
section 301(b)(I)(C) of CWA,
(I) Ensure consistency with the
requirements of, Water Quality
Management plan approved by EPA
under section 208(b) of CWA:
(7) Incorporate section 403(c) eriteria
under Part 125, Subpart M, for ocean
discharge,:
(8) Incorporate alteinative effluent
limitations or standards where
warranted by “fundamentally different
factors,” under 40 CPA Part 125, Subpart
(9) Incorporate any other
requirements, conditions, or limitations
into a new source permit wider the
National Environmental Policy Act 42
U.S.C. * * 4321 et seq. and section 511 of
CWA. when EPA Is the permit issuing
authority(see lw*. ) , - .:... - -..-‘
-------
Attachment 4
Subcategories of Secondary 1ndustries for
Which BCT Is Likely to Equal BPT
POint Source Catecory CFR Number Subcategory Nan e
Dairy Products Processing 405.1 Receiving Stations
405.6 Natural Processed Cheese
Grain Mills 406.4 Bulgur Wheat
Canned and Preserved Fruits
and Vegetables 407.1 Apple Juice (small plants)
41Ti.2 Apple Products (small plants)
Cement Manufacturing 411.1 Non—leaching
411.2 Leaching
Feedlots 412.2 Duck Feedlots
Glass Manufacturing 426.5 Float
42ti.6 Auto Terrpering
426.7 Auto Laminating
426.8 Container
426.10 Tubing
426.11 TV Picture Tube
426.12 Incandescent Lamp
426.13 Hand Pressed and Blown
* Source: Tentative determinations by Effluent Guidelines Division
on Hover ber 21, 1979.
-------
Attachment 5
40 CFR 122.53
(a)—(c) (45 FR 33442—3)
Schedules for NPD!S Permit Applications
122.53 APPIICSIto for a permit.
(Applicabl, to State NPDES programs
except for paragraphs (b). (c) and (h)
see f 223.7)
(a) Duly to apply. Any person who
discharges or proposes to discharge
pollutants and who does not have an
effective permit. except persons covered
by general permits under § 122 59 ,
excluded under § 122.31. or a user of a
privately owned eatment works unless
the Director requires otherwise under
§ 122.82 (m). shall submit a complete
application (which shall include a BMP
program if necessary under 40 CFR
§ 125.102) to the Director in accordance
with § 122.4. paragraphs (b) through (h)
of this section. and Part 124.
(b) Time to apply. Any person
proposing a new discharge shall submit
an application at least 180 days before
the date on which the discharge Is to
commence, unless permission for a later
date has been granted by the Director.
lersons proposing new discharge ire
encouraged to submit their applications
well in advance of the 180 day
requirement to avoid delay. S.. also
paragraph (h). ____
(c) Duly to zeapp ly. (1) Any POTW
with a currently effective permit shall
submit a new application at least 180
days before the expiration date of the
existing permit, unless permission for a
laterdate bu been granted by the
Director. (The Director shall not grant
permission for applications to be
submitted later than the expiration date
of the existing permit.)
(2) AU other pennfttees with currently
effective permits shall submit a new
application in accordance with the table
below:
•
Os I. 1NS __
h V 31.
INI.
IN. — IN 1
I I. • —
O PbuIN. (I)I .dT _____
N. 3 _ •-- lip
Is - - -
13S.INO. i p . —
- -‘ •• -
•UOIPN.IIN. S ’uIlWl u
.-.- Ills Wl N lip _ a
lUSh
Ni. —m. ’ N — 5sf.. —
• Iis __ Nil •. eN f.m i
lftqfl NN ( di lsll l•I N m
f. D Ilill lIl l ip Fsll I ills . a
AS - •
________ llP f IUS a ___ I ill
• ‘, lvu5 b DlJ$g ip Idi (71 (01 aa (lop ii
11* ‘sslse i U ii •N IUI lIP)
hi.. i.e If. eN U sss i.
SiaN . , .ip h ,li ilIll N
lIi.ll i i p i.lls l& . ., . N N ia
— Ols fp lsiai ip N ails N. IISI. NeNi.
S
r as p siw eNnuep , N ill
Sill INS Ii. N s f aN. Ni Ill S W VINI UN - . _ . aN
-------
Attachment 6
45 FR 33336—7:
Preamble Discussion of 40 CYR 122 .53(c)
I 122.53 Application fore permit.
- (1) New application requfremenL—
Proposed I 122.64(b) required existing
permittee . to submit a new application
automatically when certain facility
changes would either result in new or
substantially increased discharges or a
change in the nature of the discharge, or
violate the conditions of the permit.
Conimenters argued that this would be
unduly burdensome because of the
detailed testing requirements which are
likely to be a part of the new
consolidated application forms. EPA
‘ ‘ees that this subparagraph is
ecessary for three reasons: (1) the
latlons now require the perntittee to
ify the Director of planned
.erabons or additions to the pe iitted
faclifty as soon as possible
(I 122.7(IXI)J: (2) application.based
notification requirements have been
established for toxic pollutants
(I 122.61(a)): and (3) l 124.5 gIves the
Director authority to request an updated
application from the permittee. if
necessary, where ca use exists to modify
or revoke and reissue a permit. Thus,
this subparagraph has been deleted.
(2) FInal I 122.53(c) phases In lb. new
application requirements which have
been promulgated today. [ see
I I 122.4(d). 122.53(d) and 122.53(e)) for
existing discharger. other than POTW.
These new requirements apply to (1) any
such discharger whose existing permit
expires after November30. 1380 and [ 2)
my such dlshsrger whose permit
expires on or before November 30.1380
but who has not submitted an
application prior to AprIl 30.1980. the
approximate date these regulations
become public. The reason for
distInguishIng between these two groups
is discussed below:
The schedule for phasing In lb. new
application requirements has been set
after consideration of several factors.
On one hand. It is desirable to ma ) the
requirements effective as esily as
possible so that the newly-required
information on toxic discharges is made
available to permit writers. On the other
hand, as same conimenters have noted,
applicants must have ample time to
sample and analyz. their waste s sams
for toxic pollutants. A further
consideration is the effect of 1122.10(b)
of the final NPDES regulations (now
Incorporated, with nges, Into
I l”-53(c)). The regulation (proposed In
th. consolidated permit regulations as
I 122.84(b)) requIred applicants for EPA.
Issued permits to reapply at least 180
days prior to permit expiration. (Many
NPDE$ States have 5 ii, iIp . rules.) Thus
permittees whose permits are due to
expire before November 30. 1980 had to
submit applications to EPA by June 3.
1980. It would be unfair to require
discharger. in this group who have
already applied to apply once again for
the same permit.
Based upon the above cons lderathins,
EPA decided to phase In the new
application requirements beginning with
those discharger. whose permits expire
after approximately six months from
when these regulations are promulgated,
La.. after November 30. 1980. Applicants
whose permits expire before that date
will In most cases have already applied
midii , the old requirements. They need
not reaeply exnept that those whose
permits expire before November30.
1980. but who have not yet applied by
April 30. 1980 are required to apply
under the new requirements.
Discharger. whose permits expire
after November 30.1380 must comply
with the new application requirements,
even If they have already applied for
permit renewal. It would be -
inappropriate to exclude these
applicants from the new reqwrementa
simply because they have submitted
applications unusually early.
To allow applicants sufficient time to
apply under the new requirements. EPA
is tempc reilly ‘ laxing Its general
requirements that applicants submit
applications at least 180 days before
permit expiration. Th. rule will Initia l ly
be waived and then gradually phased
backInaccordancewith thetablein
§ 122.53(c).
EPA recognizes that In some
situetiona, despite th. relaxation of the
180-day rule, some appl t can’. may not
- be able to sample and analyze their
waste sO ’eanis and submit the results by
the application deadlines. Therefore.
applicants whose permits expire before
June 1. 1931 may apply for time
extensions to submit that data.
However, the extension must be limited
to a maximum of six month.. and must
not go beyond June 30. 1981. These
limitations are necessary to ensure that
permit Issuance and compliance will
meet the statutory July 1. 1984 deadlIne
of CWA section 301(b). —
-------
Attachme 7
40 CFR 123.13(g) (45 FR 33464): Applicability of New
Application Requirements to State NPDES Programs
. —
( ) St at NPDESpwgr m, only. AU
new program, must comply with these
regulatfo lmmedjtejy upon approval.
Any approved State section 402 permit
program which requires revlaja to
conform to this Part shall beso revised
with n one year of the date of
Promulgation of these rag olauqs.
unless a State must amend or enact a
statute In order to make the required
revision in hlcb case such revision
shall take place withIn 2 years, except
that revision of State program, to
impIen the requlreme 0(40 CFR
Part 403 (pretreatment) shall be
accompbsheda , provided in 40 CFR
I 403. a. In addftIor approved States
shall submit, within B months, copie, of
their permit forms for EPA review and
approvaL Approved States shall also
asitire that permit applic , other than
POTWs, ‘ Ither (1) whose .ermjt expwe
after November 30. 1980 or (2) whose
permits expise before November 30.1980
and who have not reappifed for a permit
prior to April 30. 1900, submit, as part of
their appUca , the information
req imde, . H 122.4(d) an (d)
O? pprOpdat& -
-------
— ee
45 FR 33384:
Preant 1e Discussior of 40 CFR l 23 . 1 3(g)
(Attachment 0)
A ni provision ( 123.13(g)) has been
added to reinstate the time periods for
compliance with revised NPDES
requirements by approved State NPDES
programs. Those compliance deadline.
had bean suspended on March 13. 1980
(45 F?. 1882) to allow P.’PDES Stats, to
await promalgatlon of these
consolidated regulations before
modifying their programs.
§ 123.13(g) also requires NPDES States
to implement the new NPDES
application requirements for existing
discharger, other than P07W.
contained in § * 122.4(d) and 122.53(d)
and (e). for all discharger. whose
permits expire after November 30. 1980
or whose permits expire before
November 30, 1980 but who have not
reapplied prior to April 30. 1980. ThIs is
necessary to assure that the i ” 4 ”ent
round of BAT permit issuances are
written with adequate Icoowledge of the
toxic pollutants being discharged. (See
the preamble to the consolidated
application form, published elsewhere in
todays Federal Register, and the
preamble to 155 3 and 122 R for
detailed discussion of the new
application, Its use in the NPDES
program, and the considerations
involved in phasing in the use of the
new application.)
While these application requirements
will have to be Implemented more
rapidly by States than other new NPDES
requirements. EPA anticipates that
State. should have no difficulty
Implementing them in a timely manner.
EPA Is not requiring that States
Immediately develop new forms to
secure the information required under
U 122.4(d) and 122.53(d) and (e). Until
such time as they develop new forms
they may either receive the required
Information without the use of any form.
or they may use EPAs new consolidated
Forms 1. 2b and 2c (see separate
publication in todays Federal Reglss.r
of EPA consolidated application forms).
EPA will provide adequate supplies of
these form.. to States wishing to use
them. State. which develop new
application forms consistent with
H 122.4(d) and 122.53(d) and (e) will
receive expedited approval. EPA will
consider these new forms to be
nonmibstantlal program modifications
under 123.13(b)(2).
-------
n— O—1
, D
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
I
SEP 151990
MEMORANDUM OFFICE O ENFORCEMENT
SUBJECT: NPDES Permit Issuance
For Iron and Steel Facilities
TO: Enforcement Division Directors
State NPDES Director
FROM: R. Sarah Compton
Deputy Assistant minis ator
for Water Enforcement (EN—335)
The purpose of this memorandum is to address methods for the
issuance of permits for the iron and steel industry from the
present until July 1, 1981. The preamble to the recently prom-
ulgated Consolidated Permit Regulations (45 FR 33340, May 19,
1980) sets out three possibilities:
1) Issue a short term permit, expiring no later than July 1,
1981.
2) Take no action, and therefore extend the present permit
administratively, under applicable law.
3) Issue “in appropriate circumstances” a Best Professional
Tudgement (BPJ) Best Available Technology (BAT) permit,
with a reopener clause to use after.the guideline is
issued.
Based on the fact that the iron and steel BAT guideline
is scheduled to be promulgated July, 1981, and on my and the
Administrator’s discussions with the steel industry, we have
decided that the expiring steel permits do not represent
“appropriate circumstances’ for the use of the third possibility,
BPJ BAT permits with reopener clauses. Therefore, I am
requesting that EPA Regional Offices not issue such permits
prior to the July 1, 1981 deadline, and I recommend to NPDES
states that they adopt a similar policy.
If you have any questions concerning this matter, please
telephone me (FTS or Area Code 202, 755—0440) or Dr. Robert
April of my staff (FTS or Area Code 202, 426—7035).
cc: Steve Shatzow
Alan Eckert
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n-80- 12
dO
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 2 5 1980
OFFICE OF ENFORCEMENT
MEMOR.ANDUM
SUBJECT: SuBpension of Consolidated Permit Regulation
Establishing Criteria for NPDES New Source
Determinations and Proposed Revision of the Regulation
TO: Regional Enforcement Division Directors
- NPDES State Directors
PROM: Frank E. Hall, Director
Permits Division (EN—336)t ”
On September 9, 1980, two Federal Register notices were
published; one suspending 40 CFR §122.66(b)(l) and (2), and the
second, proposing a revision to that section. Copies of the
notices are attached.
Section §l22.66(b)(l) and (2) of the consolidated permit
regulations contained criteria for distinguishing construction at
a si...e of an existing water pollutant discharge that creats a
new source frc.m construction that me ly modifies the existing
source. The language of this regulation created confusion and
raised questions about how the provision would actually operate.
It was feared that the provision would classify too many plant
alterations and expansions as new sources. Because of the
confusion, we have decided to re—examine this regulation. The
proposed revision is intended to avoid the difficulties in
applying the criteria of §l22.66(b)(l) and (2).
Pending promulgation of a final rule, permit writers are
directed to use Appendix A to Subpart I, 40 CFR Part 6 (1979),
Guidance on Determining a New Source (copy attached), as guidance
for determinations otherwise controlled by §122.66(b) (1) and (2).
-------
—2-
The public comment period on the proposed revision closes on
October 24, 1980. Please send any written comment to Robert
Brook, Permits Division (EN—336), EPA, 401 M Street, S.W.
Washington, D. C. 20460. If you have questions, you may contact
Robert Brook or Beth Osheim at 202-755—0750.
Attachments
-------
n—80—13
TR.EATA3 IL l TY MANUAL
VOLUME I. Treatability Data
U.S. ENVIRONMENTAL PROTECTION AGENCY
Washington, D.C.
(A copy of the manual is available
upon request)
June 1980
-------
PREFACE
InJanuary, 1979, EPA’s Office of Enforcement and Office of
Water and Waste Management requested help from the Office of
Research and Development in compiling wastwater treatment per-
formance data into a “Treatability Manual”. This Manual was to
be used in developing NPDES permit limitations for facilities
which, at the time of permit issuance, were not fully covered
by promulgated, industry—specific effluent guidelines authorized
under Sections 301, 304, 306, 307, and 501 of the CWA.
A planning group was set up to manage the treatability program
under the chairmanship of William Cawley, Deputy Director,
Industrial Environmental Research Laboratory — Cincinnati. The
group includes participants from: 1) the Industrial Environmen-
tal Research Laboratory - Cincinnati, 2) Effluent Guidelines
Division, Office of Water and Waste Management; 3) Permits
Division, Office of Enforcement; 4) Municipal Environmental
Research Laboratory - Cincinnati; 5) R. S. Kerr, Environmental
Research Laboratory — Ada; 6) Industrial Environmental Research
Laboratory - Research Triangle Park; 7) Monsanto Research Corpo-
ration; and 8) Aerospace Corporation.
The objectives of the treatability program are:
• To provide readily accessible data and information on
treatability of industrial and ziu.nicipal waste streams
for use by NPDES permit writers, enforcement personnel,
and by industrial or municipal permit holders;
• To provide a basis for research planning by identifying
gaps in knowledge of the treatability of certain pollut-
ants and wastestreams;
• To set up a system allowing rapid response to program
office requirements for generation of treatability data.
The primary output from this program is a five volume Treat-
ability Manual. The individual volumes are named as follows:
Volume I - Treatability Data
Volume II - Industrial Descriptions
Volume III - Technologies
Volume IV - Cost Estimating
Volume V - Summary
Date: 6/23/80 i
-------
ACKNOWLEDGMENT
The cheer size and comprehensiveness of this document should make
it obvious that this had to be the effort of a large number of people.
It is the collection of contributions from throughout the Environmental
Protection Agency, particularly from the Office of Enforcement, Office
of Water and Hazardous Materials and the Office of Research and Develop—
meht. Equally important to its success were the efforts of the employees
of the Aerospace Corporation and the Monsanto Research Corporation who
participated in this operation.
No list of the names of everyone who took part in the effort would
in any way adequately acknowledge the effort which those involved in
preparing this Manual made toward its development. Equally difficult
would be an attempt to name the people who have made the most significant
contributions both because there have been too many and because it would
be impossible to adequately define the term significant. This document
exists because of major contributions by the contractor’s staff and by
members of the following:
Effluent Guidelines Division
Office of Water and Waste Management
Permits Division
Office of Water Enforcement
National Enforcement Investigation Center
Office of Enforcement
Center for Environmental Research Information
Municipal Environmental Researcl Labo:a tory
Robert S. Kerr Environmental Research Laboratory
Industrial Environmental Research Laboratory
Research Triangle Park, NC
Industrial Environmental Research Laboratory
Cincinnati, OH
Office of Research and Development
The purpose of this acknowledgement is to express my thanks as
Co ittee Chairman and the thanks of the Agency to the Cceunittee Members
and others who contributed to the succes of this fort.
William A. Cawl y, Deputy Director, I P.1.-Cl
Chairman, Treatability Coordination nmittee
Date: 6/23/80 ii
-------
n-80-14
,Io. .
4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP O 1980
OFfl OF ENFORCEMENT
n—80-
MEMORANDUM
SUBJECT: Final BCT Cost Test Guidance
TO: Regional Enforcement Division Directors
State NPDES Directors
FROM: R. Sarah Compton
Deputy Assistant Mmmi ra r
for Water Enforcement (EN—335)
Attached is the final BCT Cost Test guidance. This guidance
is intended to assist permit writers in evaluating treatment
options for conventional pollutants pursuant to section 304(b)(4)(B)
of the Clean Water Act. The guidance should be read in conjunc-
tion with the discussion of the BCT Cost Test in 44 Federal
Register 50732 (August 29, 1979) (Appendix G of the guidance).
That discussion explains the function of the Test and how it was
developed.
As you may remember, the Federal Register discussion
outlines the BCT Cost Test methodology as it was applied during
the secondary industry review in 1978 and 1979. This review
determined if existing BAT effluent limitations for the conven-
tional pollutants for the secondary industries were Rreasonable
and, therefore, equivalent to BCT. The determination of Nreason_
ablenessu was made by comparing the incremental cost of removal
of conventional pollutants for industrial dischargers in the
secondary industries (additional cost for meeting require-
ments above BPT) with a standard incremental cost of removal
for publicly owned treatment works (POTWs) (additional cost for
meeting requirements above secondary treatment). If the incre-
mental cost (in dollars/pound of pollutants removed) for a
category of industrial dischargers was less than the cost for
POTWs, the effluent limitation was classified as Ureasonableu
The final guidance is a revision of the draft guidance
document which was distributed on June 23, 1980, and the guidance
reflects written comments received from more than a dozen sources
(EPA Regions and States) over the last three months, as well as
numerous comments received by telephone. The approach outlined
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—2—
in the draft guidance has been retained in the final guidance,
although modifications have been made to the presentation of the
capital recovery factor and to the method for adjusting the
industrial cost ratio.
If you have any questions about the final guidance, or if
assistance is needed in performing the BC Cost Test, please
contact Bill Jordan, Q ief, Industrial Permits Branch. or
Tom Laverty of his staff (FTS 426—7010).
Attachiue nt
cc: Permits Branch Chiefs (Regions I—X)
(A copy of this guidance may be requested)
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n -80- (5
tD174
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT 03 1980
OPflCE OF ENFORCEMINT
MEMORANDUM
SUBJECT: NPDES Evidentiary Hearing Management Program
TO: Regional Enforcement Division Directors
FROM: R. Sarah Compton
Deputy Assistant Administrator
for Water Enforcement (EN—335)
On March 7, 1979, responsibility for ir.anaging the NPDES
evidentiary (formerly adjudicatory) hearing program was trans—
f erred from the Enforcement Division to the Permits Division.
With the evidentiary hearing program the Permits Division gained
responsibility for:
o developing a strategy for resolving evidentiary hearings
o providing guidance on granting and denying evidentiary
hearings
o providing specific case support
o maintaining an evidentiary hearing tracking system
o processing proposed stipulations settling evidentiary
hearings
Until now, no written procedures for carrying out these
activities have been directed to the Regions. Discussion
of these procedures is outlined in the following paragraphs.
However, before discussing hearing program policy, I
wish to emphasize the importance of processing pending cases
as expeditiously as possible. It is essential that you
*/ Legal case support was reestablished on September 10, 1980,
as an Enforcement Division responsibility.
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aggressively resolve the existing backlog of cases so that
permittees will complete, at the earliest possible date, all
measures necessary to achieve BPT. The backlog must be eliminated
in anticipation of another series of hearing requests which we
expect as second round permits are issued. Pending hearings, and
the issues which they have raised, will not necessarily become
moot upon the filing of a hearing request for review of second
round BCT or BAT permits. We should push for attaining BPT and
then be prepared to handle the second round of hearing requests
as they are filed.
Strategy for Resolving Evidentiary Hearings
Several attempts have been made to develop a strategy for
resolving pending evidentiary hearings. However, with permits
expiring and emphasis being placed on enforcement case resolution,
developing this strategy for resolution of evidentiary hearings
was never completed. However, we are still considering the
following actions for resolving the large number of upcoming
hearing requests:
1. Narrow the scope of, or aeny as many unfounded requests
as can be justified. Guidance for granting and denying
evidentiary hearings is now being prepared by Robin
Conrad in the Permits Division. The initial draft
guidance document is expected shortly.
2. Categorize the issues raised, code these issues and
incorporate these codes into the Evidentiary Hearing
Tracking System. Automation of these issues (through
use of codes) could allow us to keep a running tally of
issues and allow categorizing such issues and ultimately
aid in providing uniform response to requests and
uniform resolution to issues adjudicated.
3. After categorizing and summarizing the issues, a
centralized evidentiary hearing team, made up of
technical and legal staff (and economists), could
be established to address these common issues.
Specific Case Support
Even though management of the evidentiary hearing program
was transferred to the Permits Division, specific legal case
support has been reestablished as a responsibility of the Legal
Branch, Water Enforcement Division.
Evidentiary Hearing System Report (formerly NAdjudicatoryR Hearina
System Report)
Recently we have discussed improvements to the computerized
Evidentiary Hearing System Report (EHSR), which has not been
updated since June 1978; and we are considering three approaches
to providing a current hearing status:
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o Use the present system and format and periodically
update the report.
o Eliminate data elements of little benefit and
replace them with more useful ones before updating
the report.
o Develop a completely new tracking system that is
more efficient and flexible.
Several aspects of the Headquarters NPDES evidentiary
hearing program, as well as regional hearing programs, will
have to be considered before a decision is made on which route to
follow. In the meantime, we still would like to track evidentiary
hearings. In the summer of 1978, Bridget Crawford of the Industrial
Permits Branch requested (by phone) the number of pending hearings
in each region, their SIC codes, and related issues. From this
information, she developed a status report on all pending NPDES
evidentiary hearings. Once again we want to request this type of
information to enable the Crawford” report to be updated. For
your convenience, attached is a questionnaire that, when completed
by your office, covers all areas necessary for updating the
report.
Stipulations Review Procedures
Even though the final Consolidated Regulations are silent on
Deputy Assistant Administrator (DAA) approval, of stipulations
settling NPDES evidentiary hearings, the review and approval of
stipulations for major dischargers only will continue at Headquar-
ters. This review procedure is a continuation of existing policy
except that stipulations for minor dischargers no longer require
Headquarters approval. Stipulations will continue to be signed
by the Chief, Industrial Permits Branch (until we reorganize).
Since settling evidentiary hearings for majors is of primary
concern, it is important that the review and approval of stipula-
tions to such hearings be well managed. Also, we anticipate an
increasing flow of stipulations for Headquarters approval because
of the many nev hearing requests that are expected in the coming
months. We do not anticipate any delays in Headquarters.
Stipulations submitted for Headquarters approval will
still be examined for their legal and technical accuracy and
ability to meet certain compliance standards. This review
process has proven to be an effective method of screening
stipulations for possible errors due to oversights, lack of
coordination, and misjudgment. Generally, once Headquarters has
received a stipulation package, the proposed stipulation can be
reviewed and returned to the Region within fifteen working
days. However, in certain cases additional time is needed.
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So that stipulations can be reviewed and returned to the
Regions with minimal delay, these procedures should be followed:
1. Forward the proposed stipulation package to:
Bridget C. Crawford (EN—336)
Evidentiary Hearing Clerk
Permits Division, Industrial Permits Branch
Environmental Protection Agency
401 14 Street, S.W.
Washington, D. C. 20460
2. The stipulation package should contain:
a. A covet memorandum to the Chief, Industrial
Permits Branch that explains the proposed
changes to the permit, reasons for those
changes, and includes the name and phone
number of the regional contact who is familiar
with the stipulation.
b. A copy of the permit (and the revised permit
if part of the stipulation).
c. The original copy of the proposed stipulation
signed by appropriate regional officials.
d. A copy of the evidentiary hearing request.
e. Any background data that would have bearing on
the review and approval of the stipulation.
If all reviewers concur with’ the proposed stipulation, it is
returned to the Chief, Industrial Permits Branch, for final
review and signature and then returned to the Region for further
processing. In cases where an issue is raised with regard to
provisions of a stipulation, the Headquarter’s staff member
raising the issue will telephone the appropriate regional contact
and attempt a verbal resolution. If agreement cannot be reached,
the Industrial Permits Branch Chief will review the issues in
question and determine whether the stipulation should be returned
to the Region for revision. If this determination is made, the
Regional Enforcement Division Director will be requested to
resubmit the stipulation to Headquarters with suggested changes.
However, if the stipulation is resubmitted to Headquarters
without suggested changes, and still does not meet with the
approval of the Industrial Permits Branch Chief,a review by the
Deputy Assistant Administrator for Water Enforcement will be
requested. If the DAA for Water Enforcement concurs with the
decision of the Industrial Permits Branch Chief, the stipulation
will be returned to the Region unsigned and accompanied by a
formal nonapproval memorandum.
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—5-
I hope that this memorandum will provide sufficient guidance
for getting stipulations processed in an organized and timely
manner. As the program moves ahead, you will receive further
guidance or information on managing the evidentiary hearing
process, revising the Evidentiary Hearing Tracking System,
how specific case support will be provided, the grounds for
granting and denying evidentiary hearing requests, the development
of policy for resolving hearings, and training with regard to
evidentiary and non—adversary panal hearing procedures.
Please provide us with your comments. Call me CFTS 755—0440)
or Bill Jordan, Chief Industrial Permits Branch CFTS 426—7010) if
there are any questions.
Attachment
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PENDINC NP JDICATORY HEARINGS — STATUS AS OF 9/1/80
PERMITTEE PERMIT I MAJOR! FACILITY DATE OF DATE DATE OF
MINOR TYPE HEARING PERMIT PREHEARINC
________________ REQUEST EXPIRES CONFERENCE
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_ IO 3’i,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
DEC 2 4 1980
n-80- 16
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Review of State NPDES Permits Written Prior
to State Program Revision
TO: Regional Enforceme) DV I rectors
FROM: R. Sarah compton J
Deputy Assistant I7 ministrator
for Water-Enfor ement (EN—335)
A question has arisen recently as to the applicability
of certain requirements contained in the consolidated permit
regulations to States which have not yet revised their NPDES
programs to explicitly incorporate the consolidated permit
requirements. Specifically, we have been asked whether NPDES
States can be required to incorporate reopener clauses into
their permits if their currently approved programs and practices
do not require such a provision. The answer is that mechanisms
do exist and should be employed if necessary to assure that
reopener clauses are included in all NPDES permits issued
before June 30, 1981, which are not based on finally promulgated
best available technology (BAT) guidelines.
As discussed in the Revised NPDES second Round Permits
Policy (my memo to you of August 29, 1980), the issuance now
of long—term BAT permits based on best professional judgernent
(BPJ) is appropriate in industries for which BAT guidelines
will not be promulgated by June 30, 1981. NPDES States should
not be discouraged from issuing such permits in appropriate
circumstances. However, as required by the NRDC Settlement
Agreement, permits issued before June 30, 1981 and before
applicable BAT guidelines have been published, must contain
reopener clauses. 40 CFR §122.62(c). The reopener clause
ensures that when the BAT guidelines are promulgated, any more
stringent limitations will replace the BPJ permit limits.
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It has come to my attention that at least one NPDES State
aas begun to issue long—term BAT BPJ permits which do not
contain reopener clauses. Its claimed justification is that
its currently approved NPDES program does not require the
inclusion of reopener clauses. The requirement to include
reopener clauses in BPJ permits issued before June 30, 1981,
is among the NPDES permit conditions contained in the consoli-
dated regulations (40 CFR S122.62) and is applicable to State
NPDES programs. However, 40 CFR S123.13(g) allows States one
year (two years if statutory changes are necessary) to revise
their programs to comply with the applicable provisions of the
consolidated regulations. Thus, this State argues that it
need not include permit conditions required by the consolidated
regulations, such as reopener clauses, until its program has
been revised and approved by the Administrator, and that permits
written without these conditions are valid NPDES permits, not
subject to EPA objection or veto.
This argument is incorrect. Many NPDES States currently
have the necessary statutory and regulatory authority to include
a reopener clause in the NPDES permits they issue. Although they
may not currently be issuing permits with such clauses, nothing
in State law prevents them from doing so. Such States should
immediately begin issuing NPDES permits with reopener clauses as
part of their approved program.
In those NPDES States whose statutory or regulatory authority
prevent the issuance of permits with reopeners, long—term BAT BPJ
permits should not be issued. These States should, instead,
extend their expired NPDES permits — if State law allows them to
do so — until their programs have been revised to allow the incor-
poration of reopener clauses. If a State proposes to issue a
l,ng—tezi i BAT BPJ per uit withcut a reopener c i1se, EPA c
object to and veto that permit under the authority of either 40
CFR S123.75(c)(1) or (6). The former allows the Regional Adminis-
trator to object to a permit which fails to apply an applicable
requirement of Part 123 (in this case, §122.62, which is made
applicable to States through S123.7(d)(11)); the latter allows
objections to BPJ permits which fail to carry out the provisions
of regulations issued under the Clean Water Act. While EPA
veto of a State permit is a harsh remedy, it is justified
and should be exercised when necessary to prevent the issuance of
BPJ permits which would not require reopening to incorporate a
more stringent effluent limitation subsequently promulgated by
the Agency.
All NPDES States should currently be in the process of
revising their programs to incorporate the requirements of the
consolidated regulations. When this process is completed the
need for the actions described above will be obviated, and States
will, as a matter of course, include reopeners in the permits
they issue. Until such time, the overriding goal of controlling
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—3—
oxic pollutant discharges must take precedence. Proposed State
BAT BPJ permits should be reviewed, and any necessary action
taken if they do not include reopener clauses. Please note also
that under 5122.64(a)(2) no permit written to expire after
June 30, 1981, may be issued unless the discharger has submitted
the toxic pollutant discharge information required by §122.53(d)
(7)(ii). If I can be of any assistance in implementing or
further explaining this policy, please contact me (FTS 755—0440)
or Joel Blumstein (FTS 426—4793) of my staff.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C. 20460
DEC 3 1 1980
N—80—] .7
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Procedures for Processing Plans of Approved NPDES States
to Implement NPDES General Permit Programs
TO: Enforcement Division Directors, Regions I—X
NPDES State Directors
FROM: R. Sarah Compton
Deputy Assistant A ministrat r
for Water Enforcement (EN—335)
INTRODUCTI ON
In recent months there has been a great deal of interest
on the part of approved NPDES States to proceed with plans to
implement NPDES general permit programs. ‘ro date my office has
received draft general permits from seven approved NPDES States
for review by EPA Headquarters. It is clear from these submis-
sions that there exists much confus ion concerning the proper
procedures to be followed in authorizing NPDES States to issue
and enforce general permits. The purpose of this memorandum is
to clear up that confusion by establishing uniform procedures for
authorizing approved NPDES States to implement general permit
programs.
BACKGROUND
The general permits program arose out of the decision in
NRDC v. Costle , 568 F.2d 1369 (D.C. Cir. 1977), which denied
EPA’s authority to exclude certain categories of point sources
from permitting under section 402 of the Clean Water Act.
The design for an NPDES general permit program was first outlined
in the June 7, 1979 NPDES regulations in 40 CFR §122.48. Though
the recent May 19, 1980 consolidated permit regulations have
largely adooted this same permitting scheme, several important
changes were made. The primary change, for the purposes of this
memorandum, affects the procedure for authorizing an approved
NPDES Statets authority to implement a general permit
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—2—
program. The June 7, 1979 regulations permitted an approved
NPDES State to submit an Attorney General’s statement certifying
the State’s legal authority to issue and enforce general permits
either prior to, or at the same time they submitted their proposed
general permits. 40 CFR 123.12(a)(14)(ii). The consolidated
permit regulations emphasize the need to obtain prior approval of
a State’s Attorney General’s statement where an approved NPDES
State seeks to implement the general permit program under 40 CFR
122.59. See 40 CFR §123.5(c). Accordingly, all NPDES States
desiring to implement a general permit program should proceed as
follows.
RECOMMENDED PROCESSING PROCEDURES
An approved NPDES State’s plan to implement a general
permit program will be processed as a revision to the State’s
NPDES program requiring compliance with the procedures outlined
in 40 CFR §123.13*. Pursuant to this.section and §123.5(c),
the State must submit an Attorney Generals statement certifying
that the laws and regulations of the State provide adequate
legal authority to issue and enforce general permits.
The Regional Administrator will have initial responsibility
for review of the Attorney General’s statement. In addition
to evaluating the Attorney General’s statement, she or he must
examine the State’s Memorandum of Agreement (MOA) to determine
whether any provisions ofthe MOA limit or restrict the State’s
authority to implement a general permit program. It is expected
that in most instances only an Attorney General’s statement
will need to be submitted. However, if the MOA does restrict the
State’s authority in any way, the PA must require submission
of a modified MOA, and such other ocuntencs as she or h may
determine to be necessary under the circumstances.
40 CFR §123.13(b)(2) requires EPA to determine whether
a proposed program revision is substantial, thereby triggering
public notice and comment requirements. Under a general permit
program, an approved NPDES State may be regulating numerous
categories of point sources currently requiring individual
permits with general permits covering large geographic areas.
Most often those areas will be Statewide as indicated by those
draft permits already submitted. In most instances, these
general permits will impose less stringent requirements than
those necessary in individual permits. EPA has therefore deter-
mined that every revision of a State NPDES program made for the
purpose of implementing a general permit program will be considered
substantial, thereby necessitating public comment. The Regions
are required to issue public notice of the proposed program
revision which should be mailed to all interested persons and
* A program revision is necessary because in most NPDES States
the controlling State statutory and/or regulatory authority must be
modified or supplemented to demonstrate the State’s new authority
to administer a general permits program.
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should be published in the Federal Register and in enough of
the largest newspapers in the State to provide Statewide coverage.
The public notice must provide a 30 day public comment period
and indicate that a public hearing will be provided if sufficient
interest is expressed.
After the close of the public comment period or after
a public hearing, if one is held, an Action Memorandum should
be sent from the Regional Administrator to the Administrator
recommending action on the State’s plan to implement a general
permit program. It has been proposed that the authority for
final approval of a State’s revised program be delegated from
the Administrator to the Assistant Administrator for Enforcement.
Until this delegation is approved, however, the Action Memorandum
should be sent to the Administrator. The Action Memorandum
should contain copies of the following: the State Attorney
General’s statement, correspondence with the State Director, the
modified MOA where prepared, public notice, all comments received
or a summary of these, the Regional Administrator’s response to
comments, a draft letter from the Administrator approving the
State’s authority to implement a general permit program, and any
other relevant documents.
This package will then be sent to the Assistant Administrator
for Enforcement and the Deputy Assistant Administrator for Water
Enforcement for concurrence. If everything is in order it will
then be sent to the Administrator for a decision on approval.
The program revision will become effective when the approval
letter is signed and transmitted by the Administrator. Notice
of approval will be published in the Federal Register .
EPA’s 90 day review period, set out at 40 CFR §123.75, for
commenting upon or objecting to proposed general permits drafted
by the States, can not begin to run until the State’s authority
to implement a general permit program is approved in accordance
with the above procedures. This is true even where draft general
permits were submitted prior to obtaining approval of a State
Attorney General’s statement. However, where draft general
permits have already been submitted, my staff has begun review of
these and will send any comments to the appropriate Regions for
forwarding to the States. In this way we hope to expedite EPA’S
review period.
CONTACT WITH STATES
Priority attention should be given to those approved NPDES
States which have already submitted draft general permits.
Immediate review should begin and public notice issued of
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—4-.
these States’ Attorney General’s statements. Where approved
NPDES States have submitted draft general permits without
Attorney General’s statements, an Attorney General’s statement
must be requested for review.
Further guidance on the procedures to be followed in
approving NPDES States’ authority to implement general permit
programs will be forthcoming in a State NPDES Program Guidance
Document. This document is intended to assist States with -
existing NPDES programs in revising their programs to fulfill
the requirements of the consolidated permit regulations. A
separate General Permits Guidance Document is also being prepared
which will review procedures to be followed in program approvals
and detail EPA procedures for review of draft and proposed
general NPDES permits submitted by approved -States.
Much concern has been expressed over the delays these
intended procedures ‘qtll cause to approved PDES States’ pLans to
issue general permits. While I understand these concerns,
the procedures recommended for approving NPDES States’ submissions
for implementing NPDES general permit programs are necessary
to fulfill our obligations under the law and to ensure proper
public comment on these proposed program revisions. Despite
these delays, we intend to complete the entire review process as
expeditiously as possible.
Please refer all questiàns or requests for further information
to Karen Wardzinski of my staff at 426—4793.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
FEB 1 2 1981 N—81—2
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: Determining Whether Revisions to State NPDES
Programs Made to Authorize the Issuance of
General Permits are Substantial
TO: Enforcement Division Directors, Regions I-X
NPDES State Directo /
FROM: R. Sarah Compton
Deputy Assistant A9thinist ator
for Water Enforcement (EN—335)
In a recent memorandum dated December 31, 1980 we set forth
procedures to be followed in approving NPDES States’ authority
to administer general permit programs. Since distribution of that
memorandum, we have received numerous complaints regarding EPA’s
decision to uniformly characterize as substantial every revision
of an NPDES State program made to authorize the issuance of general
permits. Several States andRegions objected that the need for
public comment triggered by this decision would unnecessarily delay
the implementation of general permit programs in approved NPDES
States. In response to this concern we have re—examined this decision
and propose the following change:
Amended Processing ProceJures
An approved NPDES State’s plan to implement a general permit
program will continue to be processed as a revision to the State’s
NPDES program requiring compliance with the procedures outlined
in 40 CFR §123.13. However, these revisions of State NPDES
programs need not uniformly be treated as substantial revisions.
The determination whether a program revision is substantial will
be made by the Regional Administrator. In making this determi-
nation the Regional Administrator should consider several factors.
Among these are the scope of the intended general permit program in
terms of the size and nature of the sources or activities covered
and the anticipated environmental effect of the program, the
sensitivity of the State’s receiving waters, the State’s statutory
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—2—
and r 2’ilatory authority for administering a general permit
program, and any description of the proposed program provided by
the State. Where the Regional Administrator does determine that
an NPDES program revision is substantial, public notice must be
issued by the Region and an opportunity for public comment provided
as required by 40 CFR S123.13(b)(2).
Regional offices should continue to follow the remainder of
the program revision procedures established in the memorandum of
December 31, 1980. Thus, after ex miriing the State’s Attorney
General’s statement and any other documents which may have been
determined to be necessary, and after the public comment period
where a program revision is determined to be substantial, an
Action Memorandum should be sent from the Regional Administrator
to the Administrator recommending action on the State’s plan to
administer a general permit program. A program revision will
become effective when -an approval letter is signed and transmitted
by the administrator.
If you have questions concerning this change please contact
Karen Wardzinski of my staff at 8—755—0750.
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• r—80—l
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ .,*1
WASHINGTON. D.C. 20460
-
OCT 31980
MEMORANDUM
SUBJECT: RCP.A Permit Priorities Guidance
FROM: R. Sarah
Deputy Assistant rninistratcr
- for Water Enforcement (EN—335)
Steffen W. Plehn 3 ‘ JJ
Deputy Assistant Adm £istratcr for
Solid Waste (W —562)
TO: egiona1 Enforcement Division Directors
Air and Eazatdous iaterials Division Directors
Water Division Directcr, Region II
Permits Branch Chiefs
Waste ianagement Brancn Cniefs
- Attached is a draft of guidance on priorities for processing
RCRA permits for your review and co .ment. The guidance is intended
t6 provide a method to categorize and establish priorities for pro-
cessing RCRA permit applications. Please recognize and be cautioned
that the final form of the Phase II, Part 264 regulations is not set
at this time and that decisions as to processing of permits may have
to be revised to align with the structure f the Thase II regulations.
We invite your comments and suggestio s on the approach outlined
in this guidance, with the understa ding that these priorities are
subject to reordering. For those of you planning on attending the
National Permits meeting or the RC A Subtitle C r! eeting, this subject
will be addressed on October 8 and 9, respectively. Please address
comments and questions to Robert Brook, Permits Division (EN—336), OWE
(8/755—0750), or Art Glazer, 0Sw (W!.—563) (8/755—9150) by October 24.
Thank you for your cooperation.
Attachment (A copy of this guidance may be requested)
cc: Gary Dietrich
John Skinner
Jack Lehman
Frank Rail
Dave Lyons
Doug HcMiilan
Mike Xozakowski
Lisa Friedman
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1 , tO Ti
F 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. 0 C. 20450
4 .
OCT 3 13 &u PIG—SO—i
MEMORANDUM
STJBJECT: EstabliSrLT’Cflt of RCRA “Program Implementation
Guidance System ( ‘GS’”
JJA f 4 r
FROM: Steffen W. Plehn4 4 .?a.. . Vb
Deputy Assistant Adr4 istratOr
for.Solid Waste (W4 562)
R. Sarah Coxupton
Deputy Assistant A . istra or
for Water Enforcement (EN—336)
James A. Roge r Cc
Associate enera]. Counsel, Wat’er and Solid Waste
Division (A—].”31)
TO: See “Distribution” Below
PUR OSE : To aid in properly imple nenting the Federal and State
hazardous ste management programs under Subtitle C of the
Resource Conservation and Recov ry Act, this memorandum
c t 1 shes a system to pr.ovide directives regarding program
implementation.
DISCUSSION : The RCF regulations promulgated on May 19, 1980,
to control hazard us wastes are one of the most comprehensive
sets of regulatio?is published by EPA. As a result there is a
need fcr some means of documenting and disseminating infor-
mation on .r.plemer.tation of these regulations and the national
prpgram they put into effect. The “Program Impler:tentatiOn
Guidance System (PIGS)” is intended to provide this means.
Proqr m Implementation Guidance Memorandum will be issued to
a nswer questions and provide directiOn regarding the imp1e cn—
ta ion of the Federal program and to aid in iaanagement of
the State programs. For example, PIGS may set forth internal
EPA reporting requirements and reepond to questions regard ng
program implementation at Headquarters and in the Regional
offices. A prime objective of the PIGS will be to provide
national consistency in implementing Subtitle C of RC k.
This system differs from the recently established
“Regulation Interpretation Memcran um System” (RIMS) ich
will consist of interpr tiJe m randa to e p ain how the
Federal hazardous ste regiflations will ap 1y in particular
situations. RIMS will interp ’2t the regulatiOr.S in response
to questicns ose answers require a fairly sophisticated
understandina of the reaulati.OflS, and will he cuolished in
the ede:al Re ist r . ; notice e ieiniz g the RIMS ‘iaS
in th F dera on August , 1960 (43 ‘R 5533G).
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As national manager of the yederal program to
control ha ard0us wastes the DeputY Assistant jniStr&tor for
Solid Waste will manage the PIGS.
PIGS will be issued as memoranda in standard format
and will, be numbered to indicate the fiscal year and the
sequential number of each issuance. For example, as the
first PIG tO be issued in F’f 1980, thiS memorand 55 t blishing
the PIGS is numbered PIG-SO 1 ’
PIGS will, be developed by the Office of Solid Waste or
the Office of Water Enforcement. All PIGS will be signed by both
the Deputy Assistant AdrdJ iStr&tot for Solid Waste and the Deputy
Assistant Administrator for Water EnforCement Prior to issuance,
the concurrefl of the i ssociate General Counsel for Water and
solid Waste will be obtained. Thus, regardless of originating
office, each PIG will represent the joint guidance of these
three 0 ffices. Withjfl the Office of Solid Waste, all PIGS
will be reviewed by 0 5W Senior staff. As apprOPriate, the
Office of Water Enforcement will identifY and sequentia ’Y
number selected pIGs for inclusion in the Consolidated Permits
policy Guidance System.
p 0 l,lowing approPriate signature and concurr e nces ? PIGS will
be distributed by the State Prcgra.mS Branch, Office of Solid Waste,
as indicated by IDistrib 1t on , below.
Regional Adrninistrato
ir and Eazardous Materials DiVjSj0fl Directors
(Regi°fls Is III — x)
Water Division Director (Region ii)
Regional Counsels
Enforcement Division Directors
Deputy Assistant Admin 5trator for Solid ,‘.s e
DeputY Assistant Administrator for Wat’
EnfOrC 1temt
Associate General counsel, Water and So1.i
Waste Division
Director, EnforC t t DiViSi°
Director, permits Division
Senior staff, Office of solid Waste
DistribUti
Regional Officf . —
—
—
Dire.Ct0rsI State 5 olid Waste Agencies
(See attached list)
Attachment
cc: Branch Chiefs, office of Solid Waste
Permits ranCh Chiefs, Region i-X
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w PF rict 1 ?G
ICZ c ST T WA =
3 19
AlfreI S. O ip1ey. Director
Division of Solid ‘m.s e az
• V ec r Cintrol
of Public i 5ea1th
Pbntgcue ry , Alabe ra 36130
C’IL . (205) 932—6728
A1as
• Th s R.
Air a SoLid ? ste >la.rEgenent
Dept. of vr tal
C3zservation
Pou 0
Juneau, A1asi 99811
S tt1e ‘rs C’ erator 399—0150
C’L (907) 465—2635
? erin 3a
r y bris, D uty .rectcr
De r r nt of ?u Lic rks
• PagQ Pago. ?iraric n San a 96799
Oves s era or
(C rnar:ia1 J.1 633—4141)
Pat. Fa .ai, cec tive Se etary
! v o 5tezr a.]. Qualitj C nJTd.ssiOn
• ? aricz.r. Sa. a Gover ent
Pago Se= 96799
Overs S C aor
(C .. ere.L Call 633—4116)
Abe 1ae, Special Assistant
M & 0 C st 2 Divjson
Depar r ezzt of Public br cs
Pago Page, ?neri .n Sa a 96799
• Overseas O exa r
(C. ner .a1 .11 688—9167)
Ar ona
R. ice Scott. Assistant Director
Depr nt of Health Services
1740 West P 1 darris Street
Phoe iix. Arir a 85007
F1 8—765—1130
•C (602) 255—1130
Ar3 nsas
B.J. P8rr . Q ief
Solid ste anent Division
Departre.’lt of ?o1l .xtion Control
ar Ecology
P.O. 2ox 9583
8001 National Drive
Little Tbck. Ar] n s 72219
Q2 (501) 371—1701
Alford Drj ter
Solid %‘è.ste ?rogr n
De r Ter1t of er y
3000 Kava.ra gh
Little ?øck, Ar) z s
C L (501) 371—2234
1i ja
Dr. rvey Co].lins, O ief
Depart. ent of Hea.lth Services
zar . z t ter .a .1 k naoe er t 5ec: r
744 P Street
Sacranento, Ca1i rnia 95914
FrS 8—552—2337
Q .. (916) 322—2337
O a .thi an
State Solid .ste ageTent - -d
1020 9th Street. Suite 300
Sacr TermO, Ca1i rnia 952 4
F1 8—5 52—3330
C . (916) 322—3330
S
72205
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C ecticut ( j t. )
C 1ora
? . v ii is Stod ’ ’ rd
De rt z2t of H 1t
4210 st .eve th Aver ie
nver, 1oado 80220
os. . (303) 320—8333
C m wea.1th of orth ria.na Islands
tsa Siren. cec..itive Of fi:er
Erivironnental Proc. e 4 ri 3c rd
do r nez of iaa1th Services
.ist Territory of the Pacific Isi.arids
Sa Isl.a.nds 96950
Overseas O racor
( n nercia1. 11 6984 or 6114)
.r1 Goldstein
Division of wirorxnerita1 Quality
De r anc. of Pt lic 1th
and vj xne.rrcai. Services
C n 1th of the crth
: ana Islands
Sai n. ri ,a
bi.e ac&ess:
. Conr ect.ic -t
Islands 96950
GO!. I Sai .n
Qia.rles Kur cer, Director
Soli aste .nags nt
r ezc. o £ v.r rn e.ita2. P otstion
State 0f ice Suii4ing
165 tc1 Aver e
rt rd , ne cut 06115
F’S 6 41—3 672
C L (203) 566—3672
Stqthen itch ck . .rector
dazax .ais teria.1.s .‘. .ragenent tbit
De r nent of viro rienta1. Protecti i
State 0f .ce ilding
.165 piw1. Ave.’ e
Eart rd, r7iectictm 06115
FTS 8—641—5148
CL (203) 566—5148
John 3. bu ian, Otief
zrdo. s teria.Ls agerenc.
Deparenent of vi e.’ rna.1. Prc ior.
State Office uildin
165 pito1 Avenge
t rd, nnectic t 06115
F l ’S 8—641—5712
OC. (203) 566—5712
issei1 L. 3renne an, Pi ent
CtLdtlt C%dSS PaCO Fery •:.:=ity
179 Allyri Street, Suite 603
Professional aii1dir
Hart rd, ectictm 06103
C’L (203) 549—6390
De1a ’.are
Kenneth R. Weiss, cting C ief
Solid ‘ ste .nagerent
De renant of t a.1 Re ces
and ivro1nenta]. C ntrc1
E 1 d ard Thtrdali 3.iildi -
ver, De1a e.e 19901
.g•• (302) 736-4764
District of Coltztia
pe
Dep rt e.it of viror e . Se i:as
415 12th Stee ., j .W.
shinton, D.C. 20004
FrS 8—727 5701
C’L (202) 727—5701
Florida
R t tVeti
Solid sts nagenent Pr ram
De r nent of vironnenta1 R .atin
T4n ‘I rs Office i1di.-
2600 ir Stone
Ta11a hassee, Flida 32301
CL (904) 488-0300
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Page 3
Gecr a
Vcses N. ‘er a1 .1.. i . Q ief
Land ?rotec
WjjC asi 5flta1 Protect .On .visiori
Deparwent of tt a.]. R oiXceS
Roan 822
270 “kshington Street, S.W.
Atlanta, Geergia. 30334
C’L (404) 656—2833
Gua m
Janes Bran , puty ?diitnistator
A , Gover xnent of Guam
P.O. x 2999
Guam 96910
Overs S Operator
(C nner .a . .1 .11 646—6263)
Ralph ?ukt_ T’ct
wiorxnerxcal Health Division
De ar uen: of Health
P.O. Box 3373
i no1ulti, Hac aii 96801
i nia .-. erator 8—556-0220
• c ( oa) 548—6410
Melvth iC iz .r i, D xtV Director
vj mie.’me.1 Health Division
De r nt cf Health
P.O. Box 3378
H r l 1u, 96601
1i r ia ‘i S Cparat3r 8—556-0220
c . . (808) 548-4139
Ida1
H ard 3ur tha. dt, S.ipervi
Solid/H .Z 3S teria1s Section
ra r Tte.flt of Hea.].th and 1,ie1 re
State E .ise
• Boise, Ida 83720
C’L (208) 334—4108
Illinois
John S. geZ
Divisi of Land and bise
Po1l itiori c3ntrol.
vjont ta1 Protection agency
2200 C txthil Road
S ing ie1d J.inois 62706
C L (217) 7 —98O0
Indiana
vid Lanun. Otief
Solid ste nag Ient Section
Division of Sanitary gineeri
State Board of Health
1330 West Michigan Street
Indiara 1 .S , Indiana. 46206
prs 8—336—0176
0L (317) 633—0176
Ia a
iar1es C. Miller. Director
A .r and Land Quality D .V .S1.On
De r Teflt of WjO5fle1tal Qua1i y
Henry A. llace ilding
900 East Grand Street
s tb3.nes, I .a 50319
rrs 8—841—6853
c (515) 2S1—8853
Kansas
Ctarles H. L.thn, C ief
Solid % ste ! na.5e ent Section
r ent Of Hee.lth and vi _r’e!
Tcp&C. Kansas 66620
c’ (913) S62—9360. ct. 297
Kentucky
Roger 3lair . Director
Divisi of Hard 5 !. teria1
and % ste rage erTt
Depa _n fx at. ai
Wi .4IUe 1t2.l. P teCT. .3
1121 Lo ijsvil1e .
Pine ,ille P1a.
T nk c ts Kentt 3cy 40601
rrs 6—351—6716
(502) 564—6716
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Page 4
Ja s tchinson. Deputy S e zy
De rtnent of t xaL e Ces
P.O. Box 44396
Baron Bouge. Louisiana 70804
C’L (504) 342-4506
Mair
bert De Qi
Coordinawr r Hazarda .is Waste ! 4n . .
Bureau of Oil and ax o .is Matis. n ol
De .rt ent of virnTencal Protection
Hospital Street- y 4dirq
Augusta. .the 04333
(207) 289—2591
Ibn Hoi.es, Q ief
Division of Solid Waste Managet ent C ntro1
BUreau of I nd Q . ality
De r nent of 1v .r rTnenta.L Protection
State House—Station 17
August4, Ma .ne 04333
C L (207) 289—2111
MaxyLaz
nest C. Re.b.ic k. Dirac or
Water a.r waste ragenent Pr r zn
Water ResoUrces ?inisr .rai n
De rr nt of : ae ra1 s r es
T wes State 0f .ce
kina lis, Mary2. .nd 21401
C L (301) 269—3875
R na.1d Ne1 n, istra r
C n.’ t ity ea.1th ?rcr s
Eivir rriental H .1 h ?d ’.istrati n
De r nent of health and 1ent. 1 ! ‘giene
201 st Preston Street
Ba1t re. Mazylard 21201
C.”L (301) 383—3123
Massachusetts
William Gat4 an, Director
Bureau of Solid Waste Dis saL
Der nt of vi rr.onta1 iage ent
Roan 1905
Lever ett Saltor.stsll Building
100 z bridge Street
B ton, ssa useS 02202
L (617) 727293
Massachusetts
Solid Waste Reoulatory:
Vartkes K. Fara.ia.ri. ( ief
Solid Waste ar i
Division of Ha x Is Wastes
De r tent of ivi nnerzta1 a y
gineering
600 Washington Street. an 320
tcn. ssachusects 02111
0L (617) 727—2658
Fazardous Waste Regulatory:
Glenn Gi1 iore, C ief
.ardois Waste Section
Division of xd s Waste
r nent of wiron e.’ita.L aLty
fl gineering
600 Washington Street
Boston, Massachusetts 02111
C (617) 727—5431
Miohiçan - Dept. of atura1 Res z es
O.J. Scherscbligt. De ity Directc
wiror nenta1 Protec.ion BUreau
De r ne.’rt of èturs.1. Rssotztes
Stevens T. Ma n Building
P.O. Box 30028
Lar ing, Michigan 48909
CZ . (517) 373—2682
Fr Ke11 .’, Division C ief
Resource Recovery Di-;isior.
Dec rtnent of 1 t ral Ra trces
General C f ice Bui1e.i. g
Secondary Cotip].ex
7150 arris Drive
La..is.ng, i 1ichi n 48909
C L (517) 322—1315
I zardo.s Waste Liquid:
vid D is, C ief
Oil end ardo. s Materials
Section
Water Quality Division
Departnent of tUra1 BeenUrces
Stevens T. Maecn Building
P.O. Box 30028
Lansing, Michi n 48909
C (517) 373—2794
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Mi .i fl ( nt.j
iiazaxdozs ? ste.
iti l trials:
Gary Guenther, Director
E _or r a1. Services Division
pr . ent of t al Re ,xceS
Stevens T. son Building
P.O. SCx 30023
Iansiz , Mic i an 48909
C’L (517) 373—3560
Michi n - Deertn ent of Public Health
Jthn L. Hasse, C ief
Q enica.ts az wealth Center
Mi i n De - r t of Public Health
P.O. x 30035
Lansing, thi n 48909
(517) 373—8050
Minnesota
le L. Wi e. ?cting Ctief
Division of Solid ‘èste naga ent
PoUud.or. contol ?ger y
1843 West Coi.rity ad C
Roseville, t. .nne ta 55113
C L (612) 297—2734
.ississi i
Jack M. MMi12.an . Director
Division of Solid % s e rage ent
and Vec r C ntro1
State 3card of Health
P.O. So 1700
ackson, tssissi i 39205
‘L (631) 982—6317
Misso
Robert M. Robin n, Director
Solid ?aste tnageTent ?rcgrmn
of Re tarces
State Office ii1ding
P.O. Sox 1368
Jefferson .ty. 1i.sso ri 65102
c (314) 751—3241
ne L. Robert r.. C ief
Solid ‘aste nag flt B eaU
of Health a
Scie es
1400 11th Avenue, Suite A
He1er . ntana 59601
F l ’S 8—587—2821
ce. . (406) 449—2821
Nebras)
p tz ice W. (Bill) Sheil, Q ief
Solid baste Division
r ent of vi 1 nerT a.l ntrol
State bise Station
P.O. x 94877
Lincoln. Nebrasxa 68509
Fl’S 8—541—2196
C . (402) 471-2186
Nevada
Lewis H. Codgin. istrator
Division of vir or e,T.a1 Protection
De .rtnent of Conservation e.z
• tura1 aso roes
Ca.ta-1 1 c
r n City, L evada 99710
(702) 895-4670
: ew Han shire
Thortas I. .. S leeney, C ief
B eau of Solid ste
De r ent of Health ar Welfare
Health a4 Wa If ...re &iildi.
.zen Drive
Concord, New shire 03301
C’!.. (603) 271—4610
New Jersey
Lino F. pereira, cting Direc 3r
Solid ‘ ste ?ór niStrat On
Division of roni enta1 Q a j
P.O. x C 027
Trenton, New Jersey 08625
FL’S 9—477—9120
C’! . . (609) 292—9120
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Neil Mexi
Jon C .ef
c nt ity s rt Services Sect .On
a1th and wjo znent c.r T flt
P.O. Box 968, o 1 IUdi.
Santa Fe, New !‘ xico 87503
!TS 9—476—5271. ct. 272
C’L (505) 827—5271, act. 272
. Ray Xrehoff. ?roram ! r ager
Solid and Y rdois % ste int . Pr rams
C Tra ity Supr .. Sj S Sectic i
Hea.].th and vjorxnent e r r rm
P.O. Box 968, T1 uildi
San Fe, New MexicO 87503
F ’S 8-476—5271, ct. 292
CL (505) 827—5271 ct. 282
S
New York
i brnan H. ser chuk, Direc r
Division of So lid ste nag enerit
De a_’t nt of E v onT%eT.aJ. Cnse.rvation
50 Wolf Ro
A1 ar2y , e i York 12233
?rs 8—567-6603
cL (518) 457—6603
Nor th Caroli.
0. W. Str .ck1ard , ead
Solid ar.d Ha r .o .2s ‘èste nagetent ar d
Djvjs1 of alth Services
of E an Raso oeS
P.O. Box 2091
Rale .gh. Fo h .roLtha 27602
(518) 457603
L 3orth Dak t
Jay aw rd, DirectQr
DivisiOn of vi cine&ital te x genent
and Researd
r ent of Health
• 1200 !t.sso zi Aver .ae
3i rck, brth J ta 53505
C’L (701) 224—2382
io
nai .d E. y , Qiief
Office of land PoLlur.ion ntol
virorznenta.1. Protection A5ency
P.O. Box 1049
Co1 xn is. io 43216
FrS 8—942—8934
CL (614) 466—8934
OJclahoia
LA. ves , thief
Industrial and Solid Waste Service
crt eE1t of Health
P.O. Box 53551
1000 N.E. 10th Stest
OkLa n City, Ckla ’a a 73152
CL (405) 271—5338
Orecon
est A. Sch idt, tnistrator
Solid ste rag ie.’ t Division
De r r rrn of Eivir rThental Quality
P.O. Box 1760
522 5.W. th Ave e
Portland, egon 97207
rrs 8-424-5913
C’L (503) 229—5913
Penn sylvania
nald A. La rthi c
Bixeau of Solid ste r agene t
par nent of .vi: n en .al Resc :
Fulton
P.O. Box 2063
arri urg, ?err sy1Vania 17120
S 8—637—9870
CL (717) 787—9870
Puerto Rico
San S hena, As ciate Direc .or
wi rc i tal O *1ity Board
Office of the Goverflor
P.O. Box 11488
Santix , Puerto Rico 00910
D.C. 0,erseaS Cperator and FS:
472—6620
CL (809) 725—2062 ct. 229 cr264
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ie Iz1a.’
John S. Quinn, Jr., ief
Solid Waste .nag 1t ?rc aiU
De r nent of ,vior ne. ’ .al. r qenent
204 ru n Building
75 vis Street
Providence, Island 02908
.Q . (401) 277—2808
Lo. vid, Jr. ! cecutive Director
Rhode Island S0134 Waste Cor ration
39 Pike Street
Providence, Rhode Island 02903
C’s . (401) 831—4440
South arolia
Hirtsill W. ue,fa1e, Director
Solid Waste ‘anagenent Division
De rtient of Health and viror enta1
Corx .ro1
3. 4 .rion Si ns 3ui1dir
2600 Bull Street
Co1 rbia, South Carolina 29201
(8C3) 758—5681
South !a
Joel C. ith , Ciief
Air ua1ity and Solid Waste Prcr T%s
De .r ant of Health
Joe Foss ‘dj
Pierre, South cta 57501
C•L (605) 773—3329
Ter.nessee
T Tiesler, Director
Division of Solid ste
Bureau of virom%eflta.L Services
De r t of P ].ic Health
Capitol Hill 3ui1diz , S.2ite 326
shvi11e , T nessee 37219
rrs 8—653—3424
(615) 741—3424
Texas
Jack C. Carni ae1. Direct
Division of Solid Waste nac
Thxas rcnent of Health
1100 Wast 49th Street
Austin, Texas 78756
(512) 458—7271
Jay Snarl, P.E.
Head. IndustrLal Solid Waste L.ru .t
Departrent of Water Re urces
1700 brth ngress
P.O. x 13087 Capitol Station
Austin, Texas 78711
C C . (512) 475—2041
Uts
1e Parker, Director
Bureau of Solid Waste nag nent
Division of vorxnenta1 a .th , State
Departzrent of Health
P.O. Box 2500
150 West t brth T npLe
Salt Lake City, Utah 84110
CC. (801) 533-4145
V e ii nt
Ri ad A. Valentthetti, C jef
Air and Solid Waste ?rocr .s
encj of vi: mtenta1 Cseti
State Office Bu .1din
bntce1ier, Vernont 05602
FrS 8—6 f2—3395
c . (802) 829—3395
Virgin Is1a s
na1d Franc is
De rtuent of 1turai. Af irs
Goverrinent of the Vixgin Is1a s
tural Resources nageT nt
Sib-Base
St. T s , Virgin Islands O!
D. C. O erseas erator 472—S62C
CL (809) 774—6420
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Page 8
V ircir.ia
WLlliam!. Gi13.eY. Director
B eaU of Sol 4 ax .mOUS % St
Ma .g nerxt
Deçarre t of F eaJ.t.h
109 Gover Or Street
RiChU d. Virçifli& 23219
rrs 8 93 6—5 271
(804) 786—5271
shingt
X1 T er , Su erVi r
Solid S s e x,age1%ex t iviSiOfl
e r t z1t of E l Y
Olympia, ès).ir tOfl 98504
FS $-434—6883
C2.. (206) 753—6883
w t virir4
r.le ParS 5, DireCt.Or
Sol.id Weste DivisiOr
De artr e of
1800 ks i,gtoEl St t, E.
Q ar1e5 Z , West V ri ” ia
‘rS a—ae5—2987
CL (304) 348—2987
Jthri rthe -nsr
DiviS3.O of Weter R e rceS
De r er1t of ! è.t al asOUr $
1201 Gr rier Street
a r1e.st , West Viri. .a 25311
c. (304) 348—0375
Wis n.siri
Robert Erill. Director
Bt eau of ste nage t
.r nent of t ra1 Rc r:es
Box 7921
t. djsori, Wi sth 53707
FL ’S 8—366—U 27
QL (608) 266—1327
O ar1es Porte.r, evi
Solid v ste a’ t
state of wi i.’i
of
o,zLity State ar
401 West 19th St. eet
O eyen e , 22002
ETS 8—329—7752
C (307) 777—7752
25305
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UNITED STATES ENVIRO! 1MENTS PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT PIG—80 2
MOR 1TD
FROM:
TO:
interIm Author t on of programs ased on
ergencY State RegUt O
ste ffen W • P lehfl \jJ
Deputy AsSjS 1 stratOr
for o1id Waste (WH146 )
R. sarah COTflptOfl
Dep%ltY AssiSt&1 t A nistr or
for Water forcement (E —33
PIGS MdreSSeeS
use emergewY regulati0nS to obtaifl ir.teri-
Can States
author izatj0
s si !
in order tovqt1al Y for interim authOri tiOn a
must have a hazard0 waste statt te and regU1at th.
meet miflim’ Federal requir ts n some c:tS’ a
State prcmulgates final regulati0nS the? a:e
State minigtrative reVie 3uch a review Y
timeC0fl5’ and delay the St tC’ 5 reCeIPt of
interim authOriZatio Ma States have
merge1 Y regulati0flS hjCh ostpone thiS State
review
.
A major drawback of State
upon ergeflCY regulati0nS is the posSi 1i- th
latiOnS may expire before final regulatio
State hazardouS waste procr with0 •
not c ttplY with rc ’ .‘.
interim authori ti0fl would be su e -
seCtion 123.136. ! oweVen1 EPA r.O
progr i the State tj1 th State
the prOgr ’ to EPA or th e%t3flve
under seCtiOn l23.15( W ’ ..
could resU’t ir. a void duri
regu1at 0 WOU1 be in force n th St
:#%eQ S7 4 , .
L
-------
—2-
In additiOn to the p 0 ssihi1 tY that the emergency regulationS
would expire prior to the effective date of the final regulatiOfl3s
EPA is also concerned that the State’ s final regulations night be
inadequate. The withdrawal procedures of 40 CPR 123.15(b) would
apply in either case. Eowever, the Agency wants to eli. inate any
possible gap in regulatory control and address in advance guesticr S
regarding reversion of the program in both of these situations.
Therefore, it is necessary that the Memorandum of Agreement
(rCA) describe the process whereby the State would immediately
and voluntarily return the program to EPA. The Federal regulatiC S
provide for such a reversion process at 40 CFR 123.15(a):
“... or in such other manner as may be agreed upon with the
Administrator.” The State must also agree to submit its final
regulations for review of adequacy at the time it applies for
phase ii authoriZatiom
DECI SI0! T
- Recognizing both the advantages and jsadvantage5 of a11owin
a State to use emergencY regulations to qualify for interim
authorization, EPA has decided tO allow a state to use emergencY
regulationsi provided the State meets certain conditions.
EPA will grant Phase i interim authorization to a State
whose program under emergency regulations is substantially
equivalent tO the Federal program if, in addition, the following
conditions ar’ met:
1) The state xnust sh’w that under its normal adminiStrati
procedures it will be able tO enact final regulations
which w l1 take effect before the emergency regulations
expire:
2) The MOA must provide that the State will submit its
final regulations to EPA for review at the time the
State applies for Phase II interim authoriZati0 and
3) The MOA must describe the process by which the State wi.l
immediatelY and voluntarily return the program to !? in
• the event that the emergencY regulations expire prior t
the effective date of the final regulations.
Emergency regulations will not be an eligible basis for
issuance of final, authorization
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3?dp
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON. D C. 20460
4( it
OCT PIG-8O-3
MEMORANDUM
SUBJECT: Requir nent That state—Permitted Hazardous
Waste Facilities Rave “Interim Status”
FROM: Steffen W. Plehn,.. 3 I . J) 2 9 -
Deputy Assistant A mi. .strator
for Solid Waste (WH 62)
R. Sarah Compton
Deputy Assistant d inistr to
for Water Enforcement (EN-335)
TO: PIGS Addressees
IS STJ E
If a State agency in a State with Phase I authorization
issues a facility permit after November 19, 1980 but the
State program s not been authorized for Phase II
interim authorization:
a) Does the . facility have interim status?
b) If the facility does not have interim status,
can it begin operation?
DISCUSSION/DECISION
a) For a fac 1ity to obtain interim status it must
meet three requirements as stated in Section 3005(e) of
RCRA.. . These are:
• The facility must have been “in existence” on
the date of enactment of RCRA (October 21, 1976),
or on the date specified by any amer.dments
passed by Congress; and
• The facility must have c plied with the notifica-
tion requirements specified in Section 3010(a);
and
• The facility must have applied for a permit as required
under Section 3005(a).
-------
—2—
If a. facility meets all three of these requirements. it
has interim status for the purposes of RCRA until a RCRA
permit has been issued or denied by EPA or a State authorized
for Phase II.
b) Assuming that a facility does not qualify for interim
status and has not been issued a RCRA permit, facility
construction and operation are precluded until a RCRA permit
is issued. Because EPA is not authorizing State permit
programs during Phase I interim authorization, a facility
permit issued by a State with Phase I authorization is not a
RCRA permit. For the same reason, Phase I authorization of
a State program does not suspend the RCRA Section 3005 require-
ment that in order to operate lawfully a facility must have
a RCPA permit or interim status. Because neither EPA nor
any States will be issuing RCRA permits during Phase I, only
facilities with interim status may operate during that period.
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? ID
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
L P WASHINGTON. O.C. 23460
‘V
It
OCT 3i so.
PIG—80—4
MEC4ORANDUM
SUBJECT: Short-Term Financial ? sSistanCe for StatèèL
Expected to Receive Authorization Before
January 1, 1981
FROM: Steffen W. Plehn.. 9 a . .— P ,Q_,
Deputy Assistant Adm.tr%ijstratOr
for Solid Waste (WH- 62)
R. Sarah Compton
Deputy Assistant A in . .st .atO
for Water Enforcement (EN—335)
TO: PIGS Addressees
ISSUE :
In order to provide financial assistance to these
States where e Region expects to issue interim authori-
zation after No ’enber 19, 1980, but before January 1, 1981,
is it necessary to execute a complete Cooperative Arrangement?
DISCUSSION :
The situation is likely to arise where a State has
submitted a complete interim authorization application,
the Regional Office expects to issue authorization before
January 1, 1981, but authorization will not be issued until
after 1ovember 19, 1990. Such a State could enter into a Cooper-
ative Arrangement with the Region in order to obtain Federal
funds and to aid in implementing the Federal program. (Note
that the FY’81 RCRA Guidance provides on page 7 that where
nonauthorized States desire financial assistance they must
enter into Cooperative Arrangements).
However, there would appear to be little, if any, benefit
in completing the documentation associated with a Cooperative
Arrangement in such a situation since: (1) the documentation
would be applicable for a relatively short period of time and
(2) some of the required documentation would be very similar
to that already submitted in the State’s authorization applica-
tion.
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—2—
DECISION :
Where a State desires financial assistance and the Region
expects to authorize the State’s program after November 19, 1980,
but before January 1, 1981, it is desirable to reduce the
burden of documentation.
To this end, financial assistance can be provided without
entering into a Cooperative Arrangement provided that:
(1) The State and Regional Of fice jointly execute
a document which de1 neateS the respective roles,
resoonsibilitieS, and activities of the two entities
duriflg the period between the date of execution and
the date on which interim authorization is issued.
The Region must be assured that the State has authority
to perform those activities wh±ch it would undertake
(e.g., a signed statement from the Attorney General).
(Note that implementation of the Federal program
will begin Novemberl9, 1980, and there is no “grace
period” during which implementation is delayed
pending issuance of authorization to a State.) and
(2) The cooperative agreements (grant) expressly provides
that financial assistance will automatically terminate
on January 1, 1981, nless the State has, by that
date, been issued interim authorization or entered
into,a Cooperative Arrangement.
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m 5 .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
•q .
I. it
FFICE OF WATER
AND W 5TE MAUAGEMCNY
MEMCRANDTJM
SJB3ECT: The Use of State Permitting Systems During
Phase I Interim Authorization Which are not
Based on Explicit Regulatory Standards.
Steffen W. Plehn
Deputy Ass istant Admi4i strator
R.
Deputy..Assistant A u.n1strator
for Wáter Enforcenent (E —335)
TO: PIGS Addressees
Issue :
Can a State program be considered substantially equivalent
to the Federal Phase I hazardous waste program if the State con-
trols hazardous waste management facilities through a permitting
system which is not based on explicit regulatory standards?
Discussion :
This issue is not concerned with the authorizatic of
States to issue/revoke RCRA permits, as is provided ir. §3005.
St ch authorization will, not be available to States *.intil the
Phase II regulations are effective. During Phase I of interim
authorization, Federal interim status standards or their
State analogues apply to existing facilities. Some States
with Phase I interim authorization may elect to apply their
version of Federal interim status standards by issu ng per-
mits containing conditions analogous to the Federal irterim
status standards. This approach is perfectly acceptable.
wever, a permit containing those standards is not a CRA
permit and does not relieve the facility owner/operatcr
hol ing it of the obligation to apply for and receive a RCRA
per-it after the effective date of Phase II.
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—2—
In those States which deal with hazardous waste only thrc.igh
a permitting system, the Agency is concerned with the substance
of the permit conditions. These permit conditions (along with
compliance monitoring) will be the key elements which deter nine
the success.of a State program. The ideal situation exists when
permit dôhditions are based on explicit regulatory standards which
are substantially equivalent to the Federal interim status stafldards.
This situation has the advantage of minimizing the potential for
litigation by permittees o disagree with the permit conditions
and provides a sound enforcement position. Some States, however,
base their hazardous waste permit conditions on pc licy or guidance
rather than on explicit standards established via regulation. Such
a State program may require additional scrutiny by EPA prior to
making a decision on whether to grant iz te im authorization.
Decision : -.
A State program may be issued interim authorization for Phase
I even if it controls hazardous waste facilities through a permit-
ting system which is not based on explicit regulatory standards. In
determining whether the State’s facility controls are substantially
equivalent to the Federal program, the considerations discussed
below must be examined.
The State’s program description must delineate the conditions
that will be used in all permits and must demonstrate that these
conditions are substantially equivalent to the Federal interim
statu s and&rds - - -
The State mu t have the legal authority to apply these permit
conditions- andtb enforce compliance with the conditionã. The
State Attorney- r,en-erai must -indicate in his or her stater ent
(as part of: the ap 1icatio’n) that such Legil a ithor tydóes exist.
Furtherrno é thé Memórind im of- Agreement (MOA) - must -provide
that all permit conciitions delinea ed in the p o ám aee ± iption
will be incorporated into all permits prior to the date of interim
authorization-. The MOKrnust state that permits will notbere—
issued or ‘n di-fied: ihI ess: as -re-issue or modified theyarë :sub_
stantia -y qui-vãIent 4Ith tb - Federal interim- st&tüé etandards. The
!IOA must certify that the permits - ll-be modified; i f r iceesary.
because of modifications in the Federal regulations, within one year
of the date of promulgation of the n T deZalre ulatioh.- In cases
where a State statutory amendment or enactment is required to reflect
changes in the Federal regulations, the MOA must provide that the
permits will be modified within two years, as pro ’ided by 40 C.F.R.
§123.13(e) (45 FR 33463). The 1)A n ast also specify that all haz-
ardous waste management activities without a permit are prohibited.
Authority for such prohibition must be indicated in the Attorney
General’ s Statement.
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r-80-2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
on icz c c EtiFb,iwiturr
MEMORANDUM
SUBJECT: RCRA Emerqency Permit Guidance
TO: Regional Enforcethent Division Directors
Air and Hazardous Materials Division DirectorS
Permits Branch Chiefs
Waste Management Branch Chiefs
FROM: , R. Sarah Comoto
0 DeputyAssistáotlAdministra
for Water Enfotcement (EN—3 5)
Steffen W. Plehn
Deputy Assistant Administrator
for Solid Waste (WH—562)
Attached for your review and comment is adr t quidai ce.
on issuing emerqency RCRA permits. The cuidance is desigi ed”
to identify the a ropriate factors to be considered in...
determining whether- to.issue an emerqencvpermi and; the
regulatory elements which should be part of an amerqency.
permit. Please note, as. indicated in the a .idance, that.
requlatorj amer dments are beinq co’,sidered whichmay affect
the aPD2 icabil ity of the emerqeflcy permit provisi.og s
under certain circumstances.
We4nvite your comTnents .and suqgesti.ons on any part p2
the qui ance. Please address oom ient&,. sugq stions,-ac d . ._ . -
questions.4Q M çhae1 McArthur -Pbj4-1jps, OWE., Pe t . D jvj jpr).
(EN— ) 1 .4 /4 6—4.793) by November; 147- J9 O.-
-Thank:y for ypur cooperation. -
Attachment
(A copy of this guidance may be requeste
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____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON. D.C. 20460
CC123 I 3O
o,v,cg or WAVtR
PIG—Si ANO WA$?E MAN*LMUSY
MEMORAHWM
JBJECT s Federal R istsr Notice of Public Hearing and
C ant er on Stats Applications for Interim
Authorization
FROM: Sts ff.n W • Piehn 9 9”
Deputy Assistant ‘kdm±4i.trator
for Solid Waste ( 7 H-562
R. Sarah Ccuupton jld 44
Deputy Assistant ‘ ‘ “i tra r
for Water Enfor euent (zN —335)
TO: PIGS Addressees
ISSU3
Row should Federal Register notice . regarding public bearing
and cent on Stat. applications for interim authorization
be worded? What is the process for publishing such notices?
DISCUSSION
A ‘ u’ sr of Regional Offices recently have asked about
the wording and publishing of Federal ister notices required
in 40 CFR 1.23.135(a). This gu anc. m.aor un has been prepared
to provid, for national consistency and to expedit. the approval
procea. This — randun provides background information on
the regulatory requirements and presents suggested wording and
publication procedures for the notice. We wish to thank Laura YobU.
of the Region fl Hazardous Materials Branch and Cheryl Koshuta
of the Of fic• of Regional Counsel, Region X, for their invaluable
assistance in the preparation of the model notice.
Section 1.23.135 of 40 CFR describes the approval process
for complete State applications for interim authorization of hazardous
waste management programs. Section L23.135(a)(l) directs th•
Regional Administrator to issue notice in the Federal Re ister,
and in accordance with l23.39(a)(l), of a public hear ng on the
State’s application for interim authorization. The Interim
Authorization Guidance Manual suggests that this notice be
published as soon as possible after the receipt of a complete
State application. (The regulation allows up to 30 days after
receipt before the notice must be issued.) The tighter schedule
found in the Manual is based on making a final decision on the
complete State application on an accelerated basis within 60 d cv ..
-------
4 —’- ftcas lhbutd nEe that the .spp thatLon is
ca pl. r:iasuingtthQ .- The *ta p lication
jo ia*a k e Pk 4n tn g review
of the • . pplication, at- aa, t . -11- squired
major issia. a qiaetly addressed,
it may b m rah pr th. S%*t tQ ab I1 tona1 infor ation
and application amendments before th. application is considered
c npiet. &r r tbe Fed..ml. - p Lished.
£ : b -i :a- ottc* ithøqgently
subm fcanti w in o ti tar * get it may
be i..u a- second F.40r qd .ste *ic% announcing
the i]St P -the new the public
revie *.nd prtod. - In Ot z. tajiQ * , !i . 1 : eCOme
neas b ij z’ - qc 4 hearing
to 4. d.q te, pUb Lia con. rati 4h gw*f1acant
new info ’tioq - hia- .i& a d. tjio tS& o* -
make on a case—by—case basis as the situation dictates.
-.- at-• -the- tsøt to- ra th tbe a I.ication
Li t$ r .faxe iswiing - s o t& aa av &.] t.r fu ion,
. A -_ t pUb .C - r a 1jkb.t*skr: -.
c:.: r - - :- : e:.Ja L -:
3c23 L35 ( reqRdie* t1 pu lrio jn ,be held
by i .ew]3 , 3wt k.b. 3Qth 4øy * f ter
• atd d. .- ç bJdsb &- ,. J j j d - -O - - * r qt e
-. *i e h.m tQ tske .pJ.*qe th. - Qt - *ft.r
oi 3 t p tai. ja rsosi , w cesg tnq -orb the s chedull
toward tiiiiprLy *ppr ’t &ta e p o ams, .
! :.::: - s.- . -• ‘ ::.. ..c: .-
] ti n pr ,44 s £th t bere. Pi c k :;
public int.r.st in a hei?! iWöEb tsssed the hearing may be
cancelled if a stat ent to that effect was included in - h a public
notice. Also, State participation is required in any pubiic
- . - -: -.
: :- • : .‘- -- :
Ir ad t t .to S.P•4 l. ? .gisp.*i no •,.p h34c n tice
4I. apcord i 123.39 ( a) ( . 4s :
9 ..&9f v _. 9 F 5
, •i & rjpj1 1a tat caqi is tt ri tion of
q ioa 4 i - oi
of the Largest s .p ra 1j J S .&t. to- attr pt atat.w 4.
attention, and (ii) mailing to pirsons on the State agency
mailing list and to any other persons whom the agency has
reason to believe are interested. U
— ____ -
-------
.3-.-
S
The t 9 i n t l SO r.psciIy iat. Z ___
public 30 • ; rv’th.rzfotic. - c-- --—z t o .th. I-- ‘ e .. - : -‘
submissiod s I tI . .avai lity ot th !
sion for iflh t by’ the publ.ic ? a t : -
submission mx ,j e a ‘bm . availabls m the aiw
of th. lead t’ A ‘ - -
.rTu .Lqa& qr ‘z
Th.. v proc.durs fo C
applicatL R iona1, Wo c nS p -aM ffq rt *
Review Te IS Etr *.p.ctiverrav1a .pr .
the publi faciLi ta n rpxat . ec
public cä er .d £ t -tM hiaring. - hèe.ri r i
has been ha2d’ a d pthfl. -’ - - -- nts -hav•
State DeleVa Coord * or 1X1 be r pon.ib1
respons t i. . eI fl15E - s’ . te: è.tevt i
the R.gio t Icqr th. . .adq rter. - Reviw
r : .- —.- — • -
-Th j 1 5( T r ntz fur t ri . tt rL ti o a1.
statC th t - &ft.r the initjg. nat w Lthè P.derA3.
the Ad .tfttDa t mikd . a
or net to approve the State • s program, taking into acCount any
nu this final
deter h1 ?.a.t 1 .C
123 • 3 •- e tfldLud. øis. .im t
of th as f r thi. d.t s in iø C r s . üif tant
ct rs e dW Page i 1 and:
provide addit t4n .VThf6rmet bdovtii g W btaf ’-.± X 5 C.?
timing, and concurrences in the Regional A bninistrator’ a Action
M.morand%dt % &-U ici i Fadbral RS i tti’-
s r ..- e : ! ‘ - . .:..* £ r.. :ee!s:
DECISTDN. : ::‘_ • C 5 I t :
• v r: 5e • •:: . :A .e:. : n
We believe that consistent wording in th. )ddbzia .E £tt ’
notices will promote public und.ratanding of the program
eriifr’e at %lP , a ’i M% %fd k
modeI edersl n icv which bi f. rb 1 tI uf40
CPR 123 • 1.35 (a )i ii n dvsl d a$19
ha. been reviewed and approved by Federal Rsqi stir attorneys
-az ’ i k1? 6 t thdd
ba ‘ * t E rd g. 1 ..it &W JdW % rt% I
fAhbeW %1 .E C 3 -
e 8i6! ar.. .ic. re ea ; ... ‘--sz • ::
e c - : ‘:
-------
—4— S
- :..± ..‘: :!
mJ: -H .z-ir *igiitJr -uôttci âän inj t aijaj sections
a? W I 11 . riparc€i a n a 0 h&n ãripts. A specific
fo at 7 Eh.-ñ.ar±ngu is noi iဠdr £ hd’teg i1gtions. Thus.
the foE t 1z& t_t1. s gq..td i it 6 1 be hang.d to meet
sp.cff ç t tX i c u i ay ;a Ioua
Stat.1;--6u jhg f rmat ia qs be
us.d f i’on th te t4roq 4 & r4ktta E ction of
tt irar c enthg et rIs Mr € e
*• ElItilFd 1O.Z at testimony
The
pafl4rrt4t J re4ifl (1 a
-øf ci ), the
Z:ot lie .. to approve
ox dittp *6u4 itfef1m th iz t the
hearing7 thus, the Agency will not
r i j . ing. çaaiss s Agency may
L U .min fy n u( i d n 8 the
application prior to thi iIe x’fzq . Izr 4 iiJh di 1 p ti
shoul.d b. fully infox’ s q the iiqjrgs. This can
b. handled as I sue ;idMn f
ister
hearing notice.- £ gO; Ofg i i i t1 •
identify the Agency’ s preliminary on Id .dA in. . opening remarks
and should explain that the óncluEio Li only teatative, pending
the rr,iv of public r4. 1lq proqe edi s of th. hearing.
Th pjarno e oJ t1 q hearing ii. to. receive in 4 fo mation from
Coe 4 jLi th$ ne1 Midu i in4ouraged
, .t :L J 4 ; c dtc q th4 p ib i aj aprt&1 . rhe
•:to dJn iaç qf ti n4.r ’ osp .cie4IZ t2t se Vito’
haYe Ily f Pt6wód t2W ‘StIEs pri-cs tion . j
an we r
ulion.
icoéd.)
. —— 5JS
States may desir, to us. the hearing to satisfy eth.1r bw
legal r.qu.trem.nts to hold public hearings. Regional Offices.
should then determine whether a joint EPA - Stat. hearfz ii-
desirable, considering the p pose of the State’. hearing and
its rilationship to EPA’ s hearing r.quirsm.nt. in’ some cases
joint hearings would be very cost-effectives States would not
have to bear the cost of conducting separate hearing; and the
public could avoid the cost of appearing at multiple hearings.
-------
—5 - ,
HOwever at joint hearing. wh.r. th. Stat. participatee
on the hearing .ws avoid .aay app.arz ; .of , t*t%,.-
invol.vsmant --t an*f g
can avoid s A a iicssb 1 ik1ij efl4 J.*Li44g :
the .ituatian ip the ape i.ng arka,, - tate nrt a jne n en
the panS ] : .:abo ] :4 mÔ€1 44 e Caz)4uct Q
of the .z t,4c.. :P.u an pr uieli4:
b eth x th , I ei - .
are for u c.edinge6r 5 L c&fUz? 4.
The m .J..o , q taina a ptiona3.. ..ctia
major i.rnasj f Sj 11ttO 9 L Thu section Li i oa”to
set out a 4 *t d beiiec1ficp1,it Q s.ze àii..
have arië rv .v .o f e State s Th4
listing jn 1i to. f c a es r ct
4á 5 4 o; W.th, r tq 3 ç :
authorEE qa.q. .1 t% - . -. -
J q i t . Le 1 -,,pac d o . r in !t 4 J4;
notice a 4f r qopJ i ) uL be s.nt ô 1 c eq
; j 4 i riJ2i r) -j B
5iw ro. on - . . . 5
- NS r ,t J .W 1 • • . .
- f ;
i .. UJ
ff q jqi l ac 4 ,ap o riatt og
and biLling ‘ im ,ars .añd tran t t1 . fô -
Ge á U . fJ’* 4eral- r rØyThdn 11 mu
the zio i e wit in a - - Tt r t ce .1 o a]d b p *bt L vti1’ti
an 1 4 t th ti. .dá s if ‘& ,4
üiiitince Jãnc.r t a iod , J*Z1 tr6IW *fd -t ’ - ‘-L
t g m j,
ze. _•_•
- :‘r. ’ - “ er- .; c.i -
L e e:L: HZ.? - - - . - ,.
::z t.. o... .‘ :. .. :. ‘ Ji r’.. :.*a.
£ f—: - - - - ‘ - “ • •;
:. e ’ e—s ,’e . -. •. - .5 ‘ i -- 3 r.
:.‘ - -g — - - - :-.
,;1(6u] also
-------
£
a
Pto.-8i-f Attathment: Model Federal er Notice
U • S. EN VI NM TAL P TECTIOL AG Cf
40 CPR Part 123 (Subpart F)
C State] Application for Interim Authorization, Phase I,
Razardous Waits Manag ent Program
GENCT: Envirer .ntal protection Agency, Region ____
ACTION: Notics of public hearing and public cent period.
J *1 : EPA has pr ulgated regulations mder Subtitle C of
the Resource Conservation and Recovery Act (as amended) to
protect h nan health aM the envirooment from the improper
management of hazardous waste. Phase I of th. regulations
were published in the Fáderal Riá itár on May 19, 1980
(45 FR 33063). These regulations include provisions for
- authorization of State programs to operate in lieu of th.
Federal program. Today EPA is announcing th. availability for
public review of the Cstate] application for Phase I interim
authorization, inviting public co,ament, and giving notice of a
public hearing to be held on the application.
DATE: Coients on the C State] interim authorization
application must be rsc.ived by Ca date at least thirty
days from the dat, of publication of this notice].
1* U’!
-------
‘ : - wilL cbñdt t b pu lL á1 t
the- ti é’ ’1 ei”%m aut i ati n- ppflb tLob at ‘I im.] on
Ca : r i% -th n • 3 0 d&y 1t r I : b1ication
of thL rIurv s th$ ’4 ) * z aee1 public
jfl : -pIibLi -1fsi thg- .i s r
•xpr.e.s .-44tE 8tat.-bf : ii 1 s l c pat.
in the o : : ..
‘t äb .ic b aring wi1 _ % i r.!i - -
tRocin
1 LSi df (4t tb] iitbe 1 a tiit p i ti
W at1 fö UoFi4
c ying by t1 . public:
-z v ar’ . ? .s”
C Address and phone , i1M er of the main office of the lead State
e: z : r?? J: 3r : -. d1 e: :.. • -.
agency];
6.. ‘“ f . 5:
tAddr.ss and phon. nun b.r of EPA Regional Office]
e :a :e sj t :.:’.’ . e : -.-: -
FA Headquarters Librar , Roan 2404, 401 M Str..t, S.W.
—— & ... . C . .._ — w • — —
Washington; D.C.
e nri; . •. —.
Written cann nta and re( 3 uests to speak at the hearing should
c i: : ;: .:: - -r- :. . :. .
be ••nt to:
• o. :g r’r:gs C: ::r r: .: -, ‘‘
twaine, address and phone umber of person at EPA Regional Office].
;e l Lt - ‘ ?c :e.r a . a : /
FOR FURTEE XNFORMA?ION CONTACT:
ra •- . L :e:r J -: - i- “ ‘ ‘ -
CtZain. • address and phone number of EPA Regional Office
re- ‘ : • “ E’
contact person].
e:-. - - •s is’i : -.. -
-, -. - I - — - — - --: -
.-J_ -
-------
JPPL 4E T * V ATI9$j. Z A1 y .1,w l.9 9 Fa4ati Reqtst.s
(45 FR 3 3 3. r :tha yJ tal. Ag pçy pi..d
Phas* I. aL. its 1. ti , si* tO? $i t4.tL&.C- f .
Re sour.c* .s atAoit a McCS Y 1O ] ( !9S 4.4J v:
to prQ*ac t1 J1 j e] 1 th rp Sn. . fremi t 1! r P4 , .
manag.me t o J zx .us_waste. EPA’S_P ssJ *ti ? C ’c9
establish, among other thingsz the initia -
listing of bazardoq t t pd 4 p e ors
and transporters of hazardous mpi 14 : ‘
-systsmi & P &4 Wc* tp
a j4t * fpçs, , 4 rpp4v. i 4s.
,L. v
The May 19 regulations also includ, provisions under which EPA
.. - .. ,.! . i . a -. ‘ ‘- tr - ‘ ree f A.
can authorize qualified State hazardous waste management programs
to operate in lieu of the Federal program. The regulationi
S ’ ‘
provide for a transitional stage in which qualified State programs
. .: I’ L : cc ‘- _.:
can be granted interim authorization. The interim authorization
program is being implemented in two phases corresponding to
r -v ‘ C sc’ ‘ i r- r .f.” ’n
the two stages in which the underlying Vederal program will takó
: 9t
effect. In order to qualify for interim authorization,
• s C ...ane±p .T :. .io :ea nu eaorfq ! n eee bL s
the State hazardous waste program must, among other thinget
- ni.qe : i ”c’ .c .
(1) have been in existence prior to August 17, 1980, and
£ t - -.-: ::o
(2) be .ubstantially equivalent to the Federal program.
a .C7
A fu ll description of the requirements and procedures for State
intsrim authorization is included in 40 CPR Part 123 Subpart F,
(45 FR 33479).
-
-------
S
The - _ - h4q .. s c ata
application to EPA: Solo Pbas 1: copies
•f thø State.. .ubmdttD1 a z. y i3abJ t9r ppb1 .J 1 psgt ion and
c n - ab neam& sb a • r A5 p i Ma . 14. on the
submittalçr a t. jpç.ssed,
as atso Otadq.bOVS .. c. ..s c. :.. .‘ .. £
(L otss :Wh •C oiut b nq. ar a] to tiSy S t
as we1l aiL P ide sal .ttaarimg r ti etL 4hi* se cMos hpu14
- b.. rsw ded * - e.fj t- ar y. c pgg a c ”uct.
S... discussion of joint
The hearing is for interested
- . :peeaon* to praa.nt tM .r v sw& pde jji t i pr at tpn £or cpneid- .
er t* bye. 1PA i t d onb i t gr - 1 erim
ant 4 ox r. Itam L- fa p zaiw,- pg ],. p1 A
emplOyees! i YDLV 1 - r,3va t sp çtj.. pf- th e isLpq ‘ #.l 1 be
t.
prasetit i& ive 1 e t ‘ . - -
Th. hearing wi3.:JP irrtDx ty adividua1s providing
oaL C’ -ftttS’ ,‘L3 L. c t bm mwocn J i or’ wt-l .foz iaL pt evidence
.1 s... .
c •i ’ ;
9 s - O aL! t*, 34 OW ,‘ flø* X Iifl t 4 iOUr by. p 4oipants
- e::: c. . ::. 9r: .z.
: - Sta wil.L as L y firaX a 5ho3 t overv.t pf. the
State program. Other coimnentars will: q .1-1 e i;- the order
in which their r.queats were received by EPA. As tim. a11 s.
persons who did not sign up in advance but who wish to cc7tunent
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S
on the !tt ’t appLication ft
will, also -i*eñ-e oppb1t ftLty tOftisUfyze’ :
Each o t * ti - r iMtvidu&L- *t41 be éUow& as such t ss as
poe. Lb 1- for’ OZ%L prebèA%&tio L b o d on. th*- auab.rc ola r.q ..ea
to àrtieipets %ilab te th• k.hzirq.. .: As n&. a
general rule, in order to ensure im p. Lpstio sad- a .
allotment of adequate participant.
should llbLt th.e LeW th ol- th.tz st ts S ts to
The p b1i rtx4 *it1 1 ftt3ts4 • ai ttae. p. att by
iitii aw % 1áibn i * wbie)c ak tteipamt.- po e.
questions 3 iib. s: 5o!. .)ab1.,:f • . c “-i ‘..ç- es?
:o± .—::: PR 33ATZOW OP . - c if er ” !
‘ tra eri t ’ of the c Ats ?Ic*iv.d t ’the 2**vthg witL beepreparad.
To ure &bc iz b. %r . t tton, p tt ipan . ald: psovid*.
w ’it bnr ii of -k.belzc s ta ’%o bea 1 nç cha ps on3
ftan.cri’ .’ Wi l be: avIi&1 .% : .fr tpàr oa. . addr..s ,’. qr c
approximately t 3 days afterW* tz :tta . t of S -a :i.
-. ‘ ‘
•r or Stet. prbgram ’to cei b -tJiteria a r*za ion
— 1_f.
• - mti t- W aV pr*gra c EP
c W of
of the CState3 program to the Federal hazardoue v*a*. nt 1ui4àm.nt
)r r .” A .1ic £I rttc iar. .y- int*á5ted in - p &nt
an’th&fdt jew: • -.: • • ‘_
- - - •. “1. 3 - - - . - ‘-‘ - - i:
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tList apscific point. .r. qu.stion. •xi.t a. to sub.tantia].
.quiva1.i c. .
Datsdz tdat.]
tsLá &atur. ]
R.gional ni.trator
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