United tat.» Office of Water
Enviiunmental Protection Enforcement (EN 335)
Agency Washington DC 20460
June 1979 C-1
A Guide to New
Regulations for the
NPDES Permit
Program
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ABOUT
THE NEW NPDES REGULATIONS
This Guide discusses the significant
features of new final regulations governing
the National Pollutant Discharge Elimination
System (NPDES) program. These regulations
were published on June 7, 1979, in the
Federal Register (44 FR 32854).
TABLE OF CONTENTS
Page
I.
Introducing the New NPDES
Permit Regulations
1
II.
The Major Concepts of the
NPDES Permitting Program
3
III.
The NPDES Permit Process
6
IV.
The Role of the Public in
NPDES Permit Decisions
10
V.
State NPDES Permit Programs
Approval and Operation
14
VI.
Public Comments on the
Proposed Regulations
17
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LP A loo-K-i'H-ooi
I. INTRODUCING THE NEN NPDES REGULATIONS
MAJOR PURPOSES
The new regulations extensively revise the
former regulations governing the National Pollu-
tant Discharge Elimination System (NPDES) permit
program. The NPDES program was created by section
402 of the Federal Water Pollution Control Act
Amendments of 1972. Since then the majority of
States have been approved by EPA to operate the
program within their boundaries. EPA conducts the
program in the other States and territories.
Currently, the discharge of pollutants into U.S.
waters is regulated through permits issued to some
50,000 dischargers. In 1977 new amendments were
passed, and the Act is now known as the Clean
Water Act. The regulations were revised for three
purposes:
. To clarify and improve the program, based on
six years of experience in issuing permits
and working with approved NPDES States.
. To fill in significant gaps in coverage under
the existing regulations, particularly in
response to court decisions and the emphasis
on controlling toxic and hazardous substan-
ces.
. To make the regulatory changes which are
necessary under the 1977 amendments to the
Clean Water Act; e.g., new treatment require-
ments and deadlines and certain variances.
ORGANIZATION OF THE REGULATIONS
Under Title 40 of the Code of Federal Regu
latlons (40 CFR), the following five Parts have
been establ ished.-
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- Part 121 State .Certification of Activities
Requiring a Federal License or Permit
- Part 122 National Pollutant Discharge
Elimination System
- Part 123 State Permit Program Requirements
- Part 124 Procedures for Decision-Making
Regarding National Pollutant
Discharge Elimination System
- Part 125 Criteria and Standards for the
National Pollutant Discharge
Elimination System
SUMMARY OF THE NEW REGULATIONS
Part 121: Establishes procedures and re-
quirements for State certification of licenses or
permits issued by Federal agencies. It is a
redesignation of former Part 123 without change.
Part 122: Provides the basic NPDES "program
description". It specifies who must apply for
permits; how permits are issued; what terms, con-
ditions, and compliance schedules go into permits;
how and when permit compliance monitoring and
reporting are done; methods for revising or re-
issuing permits; and other basic program require-
ments.
Part 123: States desiring to obtain EPA
approval for conducting NPDES permit programs and
NPDES States needing to conform to the revised
regulations are required to follow Part-123's
guidelines for submitting a program to EPA. It
cross-references substantive and procedural
requirements of Parts 122, 124, and 125 that apply
to State programs. It also contains EPA's proce-
dures for reviewing and approving State programs.
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Part 124: Provides the procedures for pro-
cessing and issuing NPDES permits. It covers the
review of proposed permits, public participation
requirements, and appeals. This Part organizes
permit decisions into the following sequence:
application; State permit certifications (for EPA
issued permits); preparation of draft permit; pub-
lic conment and hearings; issuance of the final
permit or permit denial; and for EPA issued per-
mits, the evidentiary or non-adversary hearings
and the final appeal to the Administrator.
Part 125: Establishes the particular cri-
teria and standards which EPA and approved States
apply in making certain permit determinations.
These determinations become the basis for initial
NPDES permit terms and conditions or modifications
(e.g., variances from or the application of EPA-
promulgated guidelines). Portions of Part 125 are
reserved for criteria and standards that are being
developed by EPA.
II, THE MAJOR CONCEPTS OF THE
NPDES PERMITTING PROGRAM
EPA AND THE STATES OPERATE THE PROGRAM
The NPDES permit program is designed to con-
trol all discharges of pollutants from point sour-
ces into U.S. waterways. Permits may be issued by
either EPA or an approved State. The policy of
Congress expressed in the Clean Water Act recog-
nizes the primary responsibilities of States to
control water pollution. Accordingly, the Act
provides that States shall be approved to operate
the NPDES program if they meet certain criteria.
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THE FUNCTION OF NPDES PERMITS
NPDES is a stringent regulatory program which
imposes precise and detailed pollution control
requirements through permits. The Act stipulates
that NPDES permits must:
. Limit discharges of effluents based upon
national technology-based guidelines and,
where necessary, water quality standards.
. Impose schedules of compliance for the per-
mittee to complete construction or to install
new pollution control technology.
. Require permittees to monitor their discharges
and report results and violations to the per-
mitting agency.
THE PERMIT PERIOD AND MODIFICATIONS
NPDES permits are valid for up to five years.
However, permit terms and conditions may be modi-
fied or revoked during the permit period. Permit-
tees are required to apply for renewal before
their permit expires.
THE ROLE OF THE APPLICANT AND THE PERMITTING
AGENCY
Dischargers must apply to EPA or an approved
State for an NPDES permit. Permit terms and con-
ditions are developed by EPA or Stat# agency per-
mit writers who apply national standards and
guidelines to individual dischargers. u,hen there
are no national standards or guidelines properly
applicable to a discharger, the permit writers
tailor requirements for the discharger using their
"best engineering judgement". Permit decisions
may be appealed by the applicant. Interested
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parties seeking different permit conditions (more
stringent or less stringent) or even a full denial
of the permit may also appeal.
THE PUBLIC'S ROLE IN THE NPDES PROGRAM
The Act requires EPA and the States to pro-
vide the public with opportunities to participate
in NPDES permit decision-making. The major facets
of public involvement in NPDES permitting include:
. Commenting on draft permits;
. Appealing FPA and/or State permit decisions;
. Bringing citizen suits against dischargers to
enforce permit conditions or against EPA for
failure to comply with the Act.
In addition, the public may also participate
in developing NPDES program regulations, in re-
viewing State applications for operating NPDES
permit programs, and in reporting violations to
EPA and States.
PERMIT COMPLIANCE AND ENFORCEMENT
The Act requires EPA or approved States to
evaluate the permittee's compliance with permit
terms and conditions. This is done through peri-
odic inspection of a discharger's facilities and
auditing of their records. Violations of tjie
terms or conditions of a permit may subject the
discharger to administrative or judicial sanc-
tions.
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III. THE NPDES PERMIT PROCESS
THE PROCESS FOR OBTAINING A PERMIT
The NPDES regulations specify procedures
which must be followed by applicants, EPA, and
States for issuing permits. States are required
to follow EPA's procedures for draft permits,
public notice, public comment, and responding to
these comments. States are not required to follow
EPA procedures for maintaining an administrative
record or for administrative appeals. State law
governs the process for administrative appeals.
A chart depicting the EPA and State processes
for initial permits, renewal of existing permits,
permit variance and modification applications, and
other types of permit applications is shown as
Figure 1.
WHO MUST APPLY FOR AN NPDES PERMIT?
Any owner or operator of a source that dis-
charges pollutants into the waters of the United
States must have a permit. However, certain sour-
ces are not required to obtain an NPDES permit;
i .e.:
. Irrigation Return Flows.
. Vessels when being used for transportation
(non-transportation uses of vessels may
require a permit).
. Dischargers of dredged or fill material which
are regulated by section 404 of the Clean
Water Act.
. Agricultural and si 1vicultural operations
producing pollutants throuqh runoff. (Permits
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FIGURE 1
BASIC NPDES PERMIT PROCESS
FOR EPA AND THE STATES
EPA
'Review of Non^
waived State
NPDES Permits
I
I
§123.23
Publi c
Notice
Provided
'Permitting
Authority
Reviews
Application
& Prepares
v Draft
\Penni
Discharger
Submits
Application
Final
Permit
Issued
Public
Hearings
Held
124.11
124.12
§124.41-.43
§124.61
§124.62-.63
States
Certify
EPA Draft
Permits
§ 124.21 - 124.24
^Permittiri$\
Authori ty
Prepares
Response to
Comments &
Final Permit.
r Final
Adminis-
trative
Record
Prepared
by EPA
§ 124.11
§ 124.12
124.64
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are required for discharges from concentrated
animal feeding operations, certain fish
farms, aquaculture projects, and certain sil-
viculture activities).
WHEN MUST AN APPLICATION BE SUBMITTED?
Persons must submit an application before:
. Discharging pollutants into the Nation's
waters.
. Expanding present facilities, modifying
production processes, or significantly
increasing production:
- where any change in the type, nature,
or amount of pollutant discharge would
result;
- or where a violation of permit terms
would occur.
. An existing NPDES permit expires.
Where EPA is the permitting authority the ap-
plication must be made 180 days before an existing
permit expires. The deadline for submission in
approved States will vary according to State regu-
lation. EPA requires new sources to submit an
application before they begin to construct facili-
ties.
WHAT MUST AN APPLICANT SUBMIT?
Applicants must submit an appropriate State or
EPA application form. EPA application forms are
currently being revised. The revised form will
include the results of EPA initiatives to consoli-
date several of its permit programs. These forms
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will cover such programs as NPDES, Underground
Injection Control, Hazardous Waste Management, and
Prevention of Significant Deterioration.
New sources must also submit information so
that EPA can determine whether to conduct an en-
vironmental review under the National Environmen-
tal Pol icy Act (NEPA).
WHERE SHOULD THE APPLICATION BE SENT?
If EPA is the permitting authority, appli-
cations should be filed with EPA's appropriate
Regional Office. Where the State has an approved
program, applicants should use State forms and
submit them to the appropriate State agency.
GENERAL PERMIT PROGRAM
EPA or approved States may issue general per-
mits to control the discharge of pollutants from
certain similar activities located in the same
area. These "general permits" may be issued for
separate storm sewers or other point sources which
produce a minor amount of pollutant discharge.
The public will be notified of the proposed issu-
ance of general permits so that they may submit
comments or request a hearing. EPA and approved
States may require certain separate storm sewers
or other facilities within a general permit pro-
gram area to apply for individual permits. The
program is fully defined in §122.48.
THE EPA APPEALS PROCESS
There are two types of appeal procedures
provided in the NPDES regulations — evidentiary
hearings (a revision of the previous hearing
requirements), or non-adversary procedures for
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initial licensing. Dischargers who are either
applying to EPA for their first NPDES permit or
are requesting a first decision on a variance are
eligible for the new initial licensing procedures.
The initial licensing procedures move away
from the formalities of an EPA evidentiary
hearing, which is under the control of a single
hearing officer. Instead, the initial licensing
hearing is held in front of a panel of Agency
staff who are experts on the hearing issues.
These panel members may question the parties
themselves. The subject of the hearing is usually
EPA's draft permit and not the final permit,
although an initial licensing hearing may be
requested after a final permit has been issued.
The panel hearing may combine the comment period,
the public hearing, and the evidentiary hearing
into one procedure. To provide the public with a
greater understanding of the issues, the Agency
may also hold a public hearing before the non-
adversary procedures begin.
An illustration of the major stages in the
new initial licensing process is shown in Figure
2, comparing it with the formal evidentiary
appeals process which also has been restructured
and reformed in the new regulations in Part 124,
Subpart G.
IV. THE ROLE OF THE PUBLIC IN
NPDES PERMIT DECISIONS
The public has a number of opportunities to
become involved with NPDES permit decision-making
activities. The major points in the process which
affect the public are described below and in Part
124, Subpart D.
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FIGURE I
A COMPARISON OF EPA APPEALS PROCESSES
EVIDENTIARY HEARINGS
/ PUBLIC \
'notice of rrwtt\_
. PERMIT 1]
EVIDENTIARY
HEARING
REQUESTED
APPEAL
TES
ADMINISTRATOR
EFFECTIVE FINAL PERMIT IS
ISSUED OS PERMIT !S DENIED
ADMINISTRATORf
PUBLIC NOTICE
OF FiHAL
PERM!
JWW-AWERSARY PROCEDURES FOR
INITIAL LICENSING
PANEL
HEARING
REQUESTED
APPEAL
ADMINISTRATOR
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DRAFT PERMITS (§124.31)
When EPA or an approved State receives an.
application that meets NPDES requirements, they
may tentatively decide to issue a permit and
formulate a draft permit for public review.
Draft permits can also be used to initiate
the modification of an existing permit under
§122.31 or general permit under §122.48.
FACT SHEET OR STATEMENT OF BASIS (§124.34,.33)
EPA and the States are required to prepare a
fact sheet or statement of basis for each draft
permit. A fact sheet is required for draft permits
covering major dischargers, those having wide-
spread public interest, or those which raise major
issues. The fact sheet provides an explanation of
how the draft permit terms and conditions were
developed. A typical fact sheet includes: refer-
ence to sections of the Act or permit regulations
underlying proposed permit requirements; calcula-
tions for effluent limits or conditions; variance
determinations; and State certifications. Sket-
ches and detailed descriptions of the discharge's
location and quantitative analysis of the dis-
charge are required for certain high volume dis-
chargers. A statement of basis is required for
all other permits. It presents, in less detail,
the legal and technical bases for the permit
1imits.
Both the statement of basis and the fact
sheet are important components of the EPA's admin-
istrative record. These documents may be sent to
the discharger, interested State and Federal agen-
cies, and on request to the public.
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THE ADMINISTRATIVE RECORD (§124.45,.64)
The regulations require EPA to rely on the
official file, called the administrative record,
to formulate permit terms and conditions. The
administrative record includes the application,
State certification, draft permit, statement of
basis or fact sheet, supporting documents, and
correspondence. The record is open to the public
for inspection and copying. These administrative
record requirements are not imposed on the States,
since they follow their own established proce-
dures.
PUBLIC NOTICE REQUIREMENTS (§124.41)
Regulations require EPA and the States to
notify the public regarding certain proposed per-
mit actions, including: new source determinations;
issuance of draft permits; and hearings relating
to any NPDES permit action. Notice may be mailed,
published or provided by other appropriate means.
PUBLIC COMMENT AND HEARINGS (§124.42)
The public notice must provide interested
persons with a minimum of 30 days to conment on
the draft permit or 30 days' notice before a
hearing.
Regulations require that a public hearing be
held whenever substantial public'interest is
shown. In addition, the permit-issuing authority
may schedule a hearing on its own initiative.
For EPA-issued permits, public comment takes
on added significance under the new NPDES regula-
tions. All parties, including applicants, are now
required to raise objections or provide relevant
information at hearings or by the close of any
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public comment period. This will cause applicants
and interested parties to request variances or
modifications during this period. However,
approved States may have different requirements
for raising objections.
EPA or the States may elect to reopen the
public comment period when substantial new
questions concerning permits arise, or to allow
additional comment on requests for variances or
permit modifications (§124.45),
APPEALS OF FINAL PERMITS ($124.74,.114)
After the close of the public comment period,
EPA prepares and issues a final permit. The noti-
fication to applicants, interested parties, and
affected States will inform them of their right to
contest the permit by filing a request for an evi-
dentiary or panel hearing within 30 days. Uncon-
tested permits become effective 30 days after that
notification.
V. STATE NPDES PERMIT PROGRAMS -
APPROVAL AND OPERATION
The Clean Water Act reserves a substantial
role for the States in NPDES. Presently, the
majority of States are approved by EPA to adminis-
ter the NPDES permit program. Even when EPA re-
tains responsibility, the States may participate
in the program in many ways, such as by establish-
ing State water quality standards and rejecting or
certifying EPA's draft permits, or by agreeing
with EPA to share in the permit development pro-
cess. However, States are encouraged to conduct
their own NPDES permit programs. New features of
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the NPDES regulations for State program approval
are discussed below.
GENERAL REQUIREMENTS AND PROVISIONS FOR EPA
APPROVAL OF STATE PROGRAMS
The regulations establish general require-
ments for States to assume and operate the NPDES
program. States have some latitude 1n procedural
areas, but must have adequate authority and re-
sources to assure compliance with NPDES program
goals and objectives. Generally, the State pro-
gram must be equal in scope and effectiveness to
EPA's program in terms of funding, staffing, and
enforcement authority. Significant new require-
ments for States in these regulations are high-
lighted below.
NEW REQUIREMENTS FOR STATE NPDES PROGRAMS
. Use of EPA's standard discharge monitoring
report forms. Standardized reporting and
analysis should upgrade the effectiveness
of the States and EPA 1n furthering national
water pollution control goals (§123.3).
* Assumption of permitting and enforcement ac-
tivities for Federal facilities (section 313
of the Act).
. Imposition of best management practices at
Industrial sites to prevent the Introduction
of toxic and hazardous substances Into sur-
face water (section 304(e) of the Act).
. Implementation of pretreatment programs 1n
accordance with 40 CFR Part 403.
. Use of certain EPA penalty policy criteria
for assessing penalties for civil violations.
(§123.32).
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Though bound to comply with minimum EPA oper-
ational requirements in §123.12, States can adopt
and enforce standards, limitations, or other
requirements that are more stringent than EPA's or
increase permit program operations to a greater
scope than required by the Act. The regulations do
not require the States to conduct their programs in
the same manner as EPA. For example, States do not
need to prepare an Environmental Impact Statement
(EIS) for new source permits, conduct evidentiary
hearings, or maintain a formal administrative
record. Similarly, State law governs appeals of
the State-issued NPDES permits.
EPA may not grant approval to States for con-
ducting partial programs. States are required to
administer the complete program in their area of
jurisdiction, including regulation of Federal faci-
lities and the activities under section 318 (aqua-
culture) and section 405 (sludge disposal) of the
Act. However, when there are outstanding EPA per-
mits at the time of transfer, EPA may retain juris-
diction over these permits until they expire.
CRITERIA AND STANDARDS FOR EPA'S APPROVAL OF
STATE PROGRAMS
To operate an NPDES permitting program,
States must submit an application for approval in
accordance with §123.3. The application should
include a full and complete description of the
program which would be administered under State law
or under an interstate compact, as well as copies
of all applicable State laws and program forms.
The program description should show that there are
sufficient resources, qualified personnel, and
funding to operate the proposed program in con-
formance with State laws and EPA regulations. The
State Attorney General must certify that State law
provides adequate legal authority to operate the
proposed program in compliance with applicable
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EPA regulations (§123.6). In addition, the State
must also submit a draft Memorandum of Agreement
which describes the manner in which the permit
program will be administered by the State and
monitored by EPA.
REVIEW AND APPROVAL OF STATE PROGRAMS
Once EPA receives a complete submission from
a State, the Agency has a maximum of 90 days, a
time limit imposed by the Act, to:
. review the application;
. notify the public;
. provide opportunities for public comment and
hearings;
. review public comments and reach a decision
on the adequacy of the State's proposed
program.
VI. PUBLIC COMMENTS ON THE PROPOSED REGULATIONS
BACKGROUND
EPA received over 500 letters during the pub-
lic comment period for the proposed NPDES regula-
tions. The letters contained thousands of pages
of comments.
During the comment period two public meetings
were held: one in Washington, D,C. and the other
in San Francisco. Over 100 people attended each
meeting, representing business and industry;
Federal, State and local governmental agencies;
and the interests of private citizens.
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EPA'S REVIEW OF COMMENTS ON THE AUGUST 21. 1978
PROPOSALS
After the close of the public comment period,
the comments were catalogued by each section of
the proposed rule. Each section was assigned to
a staff specialist from EPA's Office of Water
Enforcement,
EPA's staff devoted almost one staff year of
effort in reading, analyzing, tabulating, and sum-
marizing the public comments. Their summaries and
initial recommendations for modifying or deleting
sections of the proposed regulation were then pre-
sented to a panel of key EPA executives. The
panel discussed the ramifications of each issue to
reach a determination for final regulations.
Based upon the positions of the panel, the
Office of Water Enforcement staff revised the
proposed regulations and the preamble. Three
additional reviews and revision cycles were held.
A final draft was reviewed by senior EPA manage-
ment, and their comments formed the basis for the
final preamble and regulations.
AMALGAMATED REGULATIONS FOR NPDES
In addition to the August 21, 1978 proposal,
EPA published other regulations governing specific
portions of the NPDES program. These other regu-
lations were promulgated separately from the
August 21, 1978 core package (NPDES Parts 122,
123, 124 and 125), to fulfill certain statutory
deadlines or because of other pressing needs. All
regulations recently published by EPA concerning
the NPDES program which have been incorporated
into these final regulations are summarized in
Table A.
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TABLE A
SlWfflty OF REGULATIONS INCORPORATES IHTO FINAL HPOES REGULATIONS
PufclStfEtTlli 44 FR 32854
FEDERAL REGISTER
mi AHFTTATui
Feb. 4, J977
(42 FR 6S46)
*******
Proposed Rule
April 25, VS78
<43 FR 17484)
*******
Proposed Rule
Hay 16. 1978
(43 FR 2LZG6)
*******
Interim Final
Rule
Hiy 23, 1973
(43 Fft 22160)
*******
Ffnal Rule
June 2fi, 1978
{43 FR 27736)
*******
Final Rule
August 21, 1978
(43 FB 37073}
*******
Proposed Rule
Sept. 1, 1978
(43 FA 39282)
*******
Proposed Rul«
Sept. 13, 1978
(43 FR 40859}
********
interim Final
Rule
Dec. 11, 197a
(43 FR *8086)
*******
final Rule
SUMMARY OF
REGULATION
GENERAL PERMIT PROGRAM
Proposed establishment of a new
general permit program cover 1 r>g
point source discharges.
SECT1DH 3011M ypintMIOHS
Proposed establishment of criteria,
standards and procedures for
granting 301(h) permit modif"fca-
tlons to thu secondary treatment
requirements for certain ocean
discharges.
SECTION 301(1] EXTENSIONS
Established criteria for granting
extensions of 1977 statutory
deadlines for municipal treatment
requirements and industries plan-
ning to connect to these treatment
systems and a method for Incorpor-
ating these extensions Into NPOES
permits.
veto woo ir tan on
Revised Parts 124 and 125 to
clarify the procedures and criteria
*h1ch EPA will use to veto the
Issuance of State NPDES permits and
to require modification of perwlts
to Incorporate Best Available
Treatment Toxic requirements.
PRETREATHEHT
Pretreatment regulations to control
the introduction of non-domestic
MStes Into minlcfpar treatment
plants.
HPDE5 REGULATIONS
Proposed revisions to the NPDIS
regjl stlors.
BEST HAHASEHENT PRACTICES
Proposed establishment of new
controls on toxic and hazardous
pollutants by imposing in NPOES
permits Best Management Practices
for ancillary Industrial activi-
ties,
BEST AVAILABLE TREATMENT (BAT)
WBIHCATTONS —
Establishes requirements for appli-
cation for modifications of BAT
nonconverttiontls under s tit tars
301tc) and/or 301(g).
secoto Rouro perhhs
Established strategy to ensure that
NPDES permits will reflect 1983
treatment reqi/frements by Issuing
short-term permits set to expire IS
worths after the scheduled date of
promulgation of HAT guidelines for
certain Industries.
ACTIOS
Incorporated as
§122.43
Procedures incor-
porated Into Part
124, Part 125, Subpart 0,
reserved for standards and
criteria
Incorporated is Part
125, Subpart J
Veto regulations
incornoratec: as
5123.23
Modification regu-
lations incorporated
as §122.15(b)
Technical conforming
amendments made to
§§403.7,.6,.9,.10,
and .11 by this
final rule
Incorporated as Parts
122, 123, 124 t 125
Incorporated, 1n part,
1n Part 126, Subpart
K
Incorporated as
§124.51(b)
Incorporated as
§122.12(c) and
§12?.ISfbj
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The new regulations have also corrected
oversight made in the proposed regulations. The
general procedures and requirements for State
certification of activities requiring a Federal
license or permit (40 CFR 121) were omitted in the
August 21, 1978 proposal. EPA has not changed
Part 121 from what was previously required under
old Part 123, The Part has simply been renum-
bered.
MOST COMMONLY ADDRESSED ISSUES
Almost every section of the proposed NPDES
regulation drew substantive comments* The pre-
amble in the final regulation discusses all these
comments and explains EPA's analysis and deci-
sions. A synopsis of 10 issues which are
representative of major concerns for a large
number of commenters is provided below.
1. The Permit as a Limited Authorization to
Discharge ($122.14(a))
Proposal and Comment: Limited allowable dis-
charges to only those expressly authorized by a
permit and indicated that permit terms for allow-
able discharges would be based upon information
provided in an application. This section received
the greatest number of comments, most of them
pointing to the difficulty in analyzing the impact
of the proposed requirement without being able to
review the application to which it was tied.
Response: EPA agreed with these comments and
reserved §122.14(a) for reproposal along with a
new application form. However, the final regula-
tions indicate that EPA is retaining its present
policy of limiting discharges to levels which are
reported in applications or limited in permits.
In conjunction with the application form revision,
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the Agency is also examining the use of the appli-
cation data and monitoring requirements. These
issues will be addressed in proposed regulations
dealing with consolidated permitting and consoli-
dated application forms.
2. "Net/Gross" Provisions for Calculating Permit
Effluent Limitations and Standards (§122.16(e)
and (f))
Proposal and Comment: Prohibited adjustment
of permit limitations for pollutants present in
intake water — except under certain limited cir-
cumstances. A number of comnenters criticized the
proposed "net/gross" provisions as being either
too restrictive or not restrictive enough. Other
commenters suggested that the granting of a credit
should be mandatory, not discretionary.
Response: EPA has made minor changes to this
section. When credit is requested and conditions
are met, the permit will be written on a "net"
basis. However, EPA has not substantially changed
the conditions necessary for a credit.
3. Use of Actual Production versus Designed Plant
Capacity as the Basis for Calculating Effluent
Limitations and Standards ($122.16(aJ?
Proposal and Comment: Effluent limitations to
be calculated based upon the plant's actual pro-
duction. Many commenters questioned the meaning
of the term "actual production" as the basis for
calculating permit limitations, standards, or
prohibitions and whether this section was applic-
able to municipal treatment facilities.
Response: EPA added a comment to §122.16(a).
It explains that permit limitations will be calcu-
lated based upon a reasonable measure of produc-
tion. This "reasonable measure" would be histori-
cal data in the case of existing facilities, or
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market data for new or significantly modified
facilities or processes. EPA added a new subsec-
tion which states that design capacity, not actual
production, is the basis for municipal treatment
facilities.
4. Bypass Provisions Applicable to All Permits
tt&.min
Proposal and Comment: Defined bypass as a
temporary diversion of waste from the treatment
system which may be authorized under certain con-
ditions. If authorized, bypasses do not subject
the discharger to enforcement actions for non-
compliance. A number of coirmenters argued that
the conditions for allowable and prohibited by-
passes were too restrictive, and that proposed
bypass reporting requirements were unnecessary.
Response: Bypasses are now allowed in situa-
tions in which there is a risk of personal injury
or severe property damage, or to prevent the loss
of life, but not in situations where delays in
production cause economic loss. Reporting
requirements for bypasses are retained, with some
changes, because EPA believes the permitting
authority must be aware of these situations.
5. Upset Provisions Applicable to All Permits
($122.14(m))
Proposal and Comment: Defined upset as an
exceptional incident inwhich there is temporary
non-compliance with permit effluent limitations
because of factors that are beyond the reasonable
control of the permittee. Included were condi-
tions under which an upset may constitute defense
to an enforcement action. Commenters argued that
the conditions necessary for upset were either too
difficult to meet or too vague.
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Response: This section was rewritten for
clarity but was not substantively changed. EPA
continues to believe that the provisions are fully
consistent with the Clean Water Act and judicial
opinions.
6. Re-Issuing Permits with Less Stringent Terms
and Limits ($122.15(i))
Proposal and Comment: In only a few situa-
tions, EPA's proposal allowed less stringent limi-
tations in reissued permits than were in the ex-
pired permit. Commenters felt that "backsliding"
rules should be allowed in additional cases, such
as when competitors had less stringent limits.
Response: EPA felt that a softening of condi-
tions that are already being met is not justified.
This would be contrary to the goals of the Act and
would actually increase pollution in the Nation's
waters. However, in accordance with Congressional
intent, "backsliding" for conventional pollutants
is allowed in certain circumstances.
7. Operating Practices and Best Management
Practices (BMP's) ($122.15(gTy
Proposal and Comment: Defined two different
kinds of permit control practices: "best manage-
ment practices" under the authority of section
304(e) and "operating practices" under the author-
ity of 402(a)(1). A number of commenters ques-
tioned the relationship between "best management
practices" and "operating practices".
Response: Both practices are now called "best
management practices" because, although imposed
under different authorities, the practices can be
the same or similar. BMP's may be required in
permits where numerical effluent limitations are
infeasible or to supplement operating practices to
achieve effluent limitations and standards. In
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addition, a comment has been added which provides
examples of BMP's.
8. The Definition of "Discharge of a Pollutant"
(5122-3(10)
Proposal and Comment: Restated statutory
definition of "discharge of a pollutant" and in-
cluded an explanatory paragraph which elaborated
on the statutory definition of this term. Numer-
ous comments requested certain revisions and
clarifications to this definition.
Response: EPA has clarified and strengthened
this definition. It now states that:
. A discharge through a pipe must ultimately
reach navigable waters.
. Dischargers of pollutants through State or
municipal facilities without any treatment
are classified as direct dischargers,
. Discharges through privately owned treatment
systems are considered direct dischargers.
. Surface runoff channelled into point sources
is classified as a direct discharge.
The proposed provision which would have
classified a discharge into a State or municipal
treatment system handling primarily industrial
wastes as a direct discharger has been deleted.
9. Transferability of Permits ($122.12(d))
Proposal and Comment: Required permitting
authorities to approve the transfer of ownership
of facilities subject to NPDES permits. Many
commenters objected to the requirement that the
permitting authority must approve a proposed
transfer, noting the possibility of delays
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inherent in such a procedure and the potential for
unreasonable Federal involvement in private
contractual relations.
Response: EPA has redrafted the final regula-
tions to require permittees to provide at least 30
days' notice of ownership transfer and has made
transfer approval automatic within 30 days time
unless action is taken by the permitting author-
ity.
EPA believes that, as redrafted, this provi-
sion still protects the public interest by pre-
venting non-compliant dischargers from "walking
away" from their responsibilities. It also pro-
tects new owners or operators from "unhappy sur-
prises" stemming from such contingent liabilities
by raising these issues before transfer has been
completed.
10. Special Permit Programs ($122.42 and .43)
Proposal and Comment: Proposed that concen-
trated animal feeding operations and concentrated
aquatic animal production facilities would require
individual permits and that all other such facili-
ties or operations should be covered by general
permits. Also proposed that certain facilities
could be designated as "concentrated" and thus
require an individual permit. Many commenters
felt that there was no need for general permit
coverage for the smaller operations because they
are not point sources. Some conmenters felt that
section 208, Areawide Waste Treatment Planning
Activities, adequately covered the disposal of
wastes from these smaller operations.
Response: EPA has carefully reconsidered its
position and agrees that the smaller operations do
not necessarily require permits, although case-by-
case designations may be necessary in certain
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circumstances. Thus, as a general rule, only
concentrated aquatic animal production facilities
and concentrated animal feeding operations will be
subject to permit coverage.
~ U.S. GOVERNMENT PRINTING OFFICE: 1979 O— 281-147/137
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ABOUT THIS GUIDE
This Guide is one in a series of pamphlets
which describe various EPA permit programs.
The full series includes:
. A Guide to New Regulations for NPDES (C-l)
. A Guide to the Underground Injection
Control Program (C-2)
. A Guide to Proposed Consolidated Permit
Regulations (C-3)
. A Guide for States on Proposed Consolidated
Permit Regulations (C-4)
. A Guide to the Hazardous Waste Management
Program (C-5)
. A Guide to the Dredge or Fill Permit
Program (C-6)
. A Guide to the Consolidated Application
Form (C-7)
TO OBTAIN COPIES OF THE REGULATIONS OR GUIDES
Write to:
U.S. Environmental Protection Agency
Public Information Center (PM-215)
401 M Street, S.W.
Washington, D.C. 20460
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