United States
Environmental Protection
Agency
May 1980
Office of Water
Enforcement (EN 335)
Washington DC 20460
C 8
A Guide to the
Consolidated Permit
Regulations
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ABOUT THE NEW CONSOLIDATED PERMIT REGULATIONS
This Guide discusses the major purposes and
significant features of the new final regulations
consolidating the procedures which govern the
processing of permits under the:
o Hazardous Waste Management Program
o Underground Injection Control Program
o National Pollutant Discharge Elimination System
o Section 404 (Dredge or Fill) State Programs
o Prevention of Significant Deterioration Program
These regulations were published in the Federal
Register in May 19, 1980. (45 F.R. 33290)
This Guide updates the Guide to the Proposed
Consolidated Permit Regulations that was published
in June 1979. (See the back cover of this pamphlet
for more information on additional materials
available on the final consolidated permit regulations.)
TABLE OF CONTENTS PAGE
I. INTRODUCTION 2
II. MAJOR CONCEPTS OF CONSOLIDATED PERMITTING 7
III. WHAT CONSOLIDATION WILL NOT DO 9
IV. THE CONSOLIDATED PERMIT PROCESS 10
V. PUBLIC COMMENTS ON THE PROPOSED CONSOLIDATED
PERMIT REGULATIONS 18
* * *
Table I Coverage and Format 6
Figure 1 Conventional Permitting Procedures insert
Figure 2 Non-Adversary Panel Procedures insert
TO OBTAIN COPIES OF THIS GUIDE OR THE REGULATIONS, WRITE
TO:
Library Services MD-35
U.S. Environmental Protection Agency
Research Triangle Park, N.C. 27711
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A GUIDE TO THE CONSOLIDATED PERMIT REGULATIONS
I. INTRODUCTION
This guide discusses EPA's new final consoli-
dated permit regulations that were published on May 19,
1980 in the Federal Register. Proposed consolidated
permit regulations were published on June 14, 1979
(44 F.R. 34244).
MAJOR PURPOSES
o More effective environmental management
EPA is responsible for administering various permit
programs, each of which is aimed at controlling a speci-
fic set of environmental problems. In many cases,
however, a single industrial facility may require
permits under more than one EPA permit program. In the
past, different EPA staff have developed individual pro-
gram requirements, and have reviewed permits for the
same source separately. As EPA begins to implement
three new programs — Hazardous Waste Management, Under-
ground Injection Control, and State 404 programs — in
addition to the existing regulatory programs, however,
it has become essential to coordinate the development of
permit program requirements and the review of permits
wherever possible. Without this coordination, there
would be great potential for ineffective and contradic-
tory controls under the different programs. The regula-
tions establish a framework which enables EPA to review
and process multiple permits for the same facility or
activity at the same time, and according to the same
procedures.
o Reduction in the Regulatory Burden
The costs to the regulated community of applying
for EPA permits can vary significantly, depending on the
amount of information required to be submitted, the
procedures for processing permits, and the time required
to obtain permits. EPA has attempted to cut some of
these costs by developing a standard permit application
form for all of its permits programs, and by stream-
lining the procedures for processing permits. Where a
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single facility or activity needs more than one EPA
permit, EPA will collect all standard i^formation on a
single application form. The consolidated permit
regulations also standardize the steps involved in
processing permits, so that permittees do not have
to learn different procedures for different permit
programs. These uniform procedures will also enable EPA
to process multiple permits for the same facility
together, which should result in more consistent control
requirements and could save time and money for industry.
o More effective use of Agency resources
Limited Agency resources can be used more effec-
tively if permits are processed according to uniform
procedures by the same permit processing staff. If the
implementation of new permit programs is coordinated
with existing programs, the incremental cost of admin-
istering the newer programs may be less than if the new
programs were implemented independently. EPA has
already provided a single point of contact within the
Agency for new source permit processing. Centralized
permit processing units are also being established in
EPA's Regional offices. The consolidated permit regula-
tions should enable more efficient and cost-effective
use of EPA's resources to administer its permit programs.
PROGRAMS COVERED
These regulations consolidate requirements for the
following five programs under four Federal environmental
laws:
° the Hazardous Waste Management {RCRA) program
under the Resource Conservation and Recovery
Act (RCRA);
° the Underground Injection Control (UIC)
program under the Safe Drinking Water Act
(SDWA);
° the National Pollutant Discharge Elimination
System (NPDES) program under the Clean Water
Act (CWA);
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° the Prevention of Significant Deterioration
(PSD) program of the Clean Air Act (CAA),
but only where EPA is the permitting author-
ity and only to specify permit procedures;
and
° State section 404 (Dredge or Fill) programs
under the Clean Water Act (CWA).
ORGANIZATION
The consolidated permit regulations are divided
into three Parts of Title 40 of the Code of Federal
Regulations:
Part 122: EPA-Administered Permit Programs:
NPDES, Hazardous Waste, and UIC
Part 123: State Program Requirements
Part 124: Procedures for Decision-making
Each Part includes provisions which are generally
applicable, as well as program-specific requirements.
The general provisions are included in Subpart A of
each Part. The additional requirements for each pro-
gram are in the program-specific Subparts (B, C, D, E,
or F).
Part 122 generally describes basic permit require-
ments and gives definitions for the RCRA, UIC and NPDES
programs. Definitions are also provided for the 404
program. Part 122 establishes requirements for permit
permit applications, permit duration, causes for modi-
fication or termination of permits, standard permit
conditions, and other program requirements. Some of
these these procedures are also made applicable to State
programs, and are so identified both in Part 122 and
Part 123.
Part 123 deals with State programs. It governs
the process for obtaining EPA approval of State RCRA,
UIC, NPDES and 404 programs, procedures for modifica-
tion of State programs and for withdrawal of EPA
program approval and the requirements for administra-
tion of State programs. Most of the administrative
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requirements for State programs are identified by cross-
referencing requirements from Parts 122 and 124. Only
those provisions of Parts 122 and 124 which are speci-
fically listed in Part 123 apply to the operation of
State programs.
Part 124 establishes the procedures for EPA pro-
cessing of NPDES, RCRA, UIC and PSD permits. Some of
these procedures, particularly those affording basic
public participation, are also made applicable to State
programs (including the 404 program) and are so identi-
fied both in Part 124 and in Part 123. This Part
enables EPA to consolidate the processing of two or
more permits required for the same facility or activity.
Likewise, when both a State and EPA must act on permit
applications, the regulations encourage joint proces-
sing and cooperation.
RELATION TO OTHER REGULATIONS
The consolidated permit regulations are basically
procedural in nature. They do not include the technical
criteria used by permit writers in establishing permit
conditions. Each program has additional regulations
governing these technical requirements. Table I lists
these other regulations. (See page 6).
Proposed consolidated permit regulations and draft
permit application materials were published in the
Federal Register on June 14, 1979. The final regulations
incorporate a number of changes resulting from comments
received during the public comment period that ended on
September 12, 1979. (See 44 F.R. 34244).
The consolidated permit regulations incorporate and
take the place of final regulations for the NPDES pro-
gram that were promulgated on June 7, 1979 as 40 CFR
Parts 122, 123 and 124 (44 F.R. 32854).
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TABLE I: Coverage and Format
Consolidated
in
Technical
Name
Abbrev.
Coverage 122
123
124
Act
Requirements
Hazardous Waste
RCRA
generation, trans- Yes
Yes
Yes
Resource
40 CFR
Management
portation, treat-
Conservation &
260-266
Program
ment, storage,
Recovery Act
disposal of
(RCRA)
hazardous waste
42 USC §6901
Underground
UIC
well injection/ Yes
Yes
Yes
Safe Drinking
40 CFR 146
Injection
protection of
Water Act
Control Program
drinking water
(SDWA)
aquifers
42 USCj§300f
National
NPDES
discharge of Yes
Yes
Yes
Clean Water
40 CFR 125,
Pollutant
wastewater into
Act
129, 133, &
Discharge Elimi-
waters of the U.S.
(CWA)
Subchapter N
nation System
33 USC §1251
Dredge or Fill
404
discharge of Par
Yes
Par
Clean Water
40 CFR 230
Program
dredged or fill tly
tly
Act
material into
(CWA J
waters of U.S.
33 USC §1251
Prevention of
PSD
emi ss i on of No
No
Yes
Clean Air Act
40 CFR 52
Significant
pollutants from
(CAA)
Deterioration
sources in
clean air areas
42 USC §7401
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II. MAJOR CONCEPTS OF CONSOLIDATED PERMITTING
STREAMLINED PERMITTING
The consolidated permit regulations and consoli-
dated application forms provide a framework for proces-
sing multiple EPA permits for the same facility or
activity together. Applicants need only provide stand-
ard standard information once on a single form; informa-
tion needed for specific program considerations is
collected on forms that have been developed for each
program. Where appropriate, EPA will consolidate draft
permits, public notices, public hearings and administra-
tive records for the permits needed for the facility or
activity. By consolidating review of the various
permits, both EPA and the public will have an oppor-
tunity to make a comprehensive assessment of necessary
environmental controls. This should result in more
consistent and efficient control requirements for the
regulated facility or activity.
The regulations also provide for expedited permit-
ting under certain circumstances. Where no comments
are received during the public comment period on a
draft permit, a permit may become effective immediately
upon issuance of the final permit instead of the usual
30 days after issuance. In addition, EPA will prepare
a "project decision schedule" for permit applications
for major new facilities, setting target dates for the
processing of the permit. This schedule should help
both industry and EPA to plan more accurately for the
construction and operation of the facility.
FIXED TERM PERMITS/PERMIT AS A SHIELD
Most permits under the consolidated permit regula-
tions are issued for fixed terms, and are subject to
periodic review and reissuance. This approach provides
greater certainty to the permittee that permit require-
ments will not change significantly during the permit
term, while at the same time allowing for periodic
review and revision to reflect changing needs and
technological developments. All RCRA and Class I UIC
permits, NPDES, and 404 will be issued with maximum
five or ten year terms under section 122.9. Class
II and III UIC wells may receive permits for up to the
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life of the facility. EPA-issued fixed-term NPDES, 404,
RCRA, and Class I UIC permits offer several advantages
to permittees: First, these permits are not subject to
open-ended upgrading to meet new standards during the
permit term. Only where the permittee requests modifi-
cation to reflect new EPA standards will such modifica-
tions be made, except under limited circumstances for
NPDES and 404 permits. Any adjustments of this nature
will normally be made at the time of permit reissuance.
Second, EPA-issued fixed-term permits also protect a
complying permittee from enforcement against the
requirements of RCRA or SDWA, except for imminent
hazard actions under section 7003 of RCRA. Because
Class II and III UIC wells are not otherwise subject
to regular review proceedings, these permits may be
modified to reflect new technical standards, and do not
operate as a shield for purposes of enforcement.
EPA AND THE STATES
The consolidated permit regulations establish
requirements for State programs which can be approved
by EPA to operate the RCRA, UIC, NPDES and 404 programs
if they meet certain criteria. Each of the Federal
statutes establishing these programs contains a clear
preference for allowing the States to administer the
programs in lieu of EPA (or, in the case of 404 programs,
in lieu of the Army Corps of Engineers). The consoli-
dated permit regulations establish minimum requirements
for obtaining EPA approval of State programs.
Consolidation of program regulations does not
change the requirements for State administration of the
programs. Publishing them together creates common
formats for State program submissions and should
encourage State efforts to make permit programs more
efficient if a State wishes to undertake these activi-
ties. There is no requirement in the regulations,
however, for consolidation of RCRA, UIC, NPDES or 404
programs at the State level. Certain States have
initiated similar programs for streamlining their
environmental permit approval process, and the consoli-
dated permit regulations are designed to encourage
additional efforts in these and other States. The
regulations are also designed to encourage coordination
of permit processing activities between EPA and one or
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more State agencies, particularly where the same
facility needs both Federal and State permits.
THE ROLE OF THE PUBLIC IN CONSOLIDATED PERMITTING
EPA is committed to providing the public with
opportunities to participate in permit program decision-
making. The consolidated permit regulations strengthen
this commitment by establishing predictable points of
public involvement under any of the covered permit
programs. These opportunities for public involvement
i nclude:
o Commenting on draft permits
o Participating in public hearings on permits
o Appealing EPA permit decisions
o Commenting on State programs prior to EPA approval
o Bringing citizen suits against permittees to
enforce permit conditions or against EPA for
failure to comply with a statutory requirement
o Notifying EPA of permit violations, or of other
potential violations
III. WHAT CONSOLIDATION WILL NOT DO
Consolidation will NOT do the following:
o It will not require States to consolidate or
reorganize their permitting functions --
although it now may be easier for them to
do so if they wish.
o It will not make the programs identical in
the ways they are administered — but States
coming to EPA for program authority will now
have available a more uniform and accessible
procedure for requesting and assuming
responsibilities.
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o It will not make substantive environmental
requirements easier to meet -- although it
will, we hope, make them clearer and more
consistent.
o It will not make the process for obtaining
an EPA permit simple — but it will make it
possible to learn one set of procedures for
most dealings with EPA,
o It will not necessarily enable one-stop per-
mitting in all cases, since in most instances
one or more of the programs will still be
administered Federally while others will be
administered by the State -- but provision
for joint Federal/State processing of permit
applications should enable joint processing
in many cases.
IV. THE CONSOLIDATED PERMIT PROCESS
The consolidated permit regulations specify proce-
dures which must be followed by applicants, EPA and
States for processing permits. States are required to
follow EPA's procedures for draft permits, fact sheets,
public notice, public comment and responding to these
comments. States are not required to follow EPA proce-
dures for maintaining an administrative record or for
administrative appeals. State law governs the process
for administrative appeals.
Charts depicting the basic permit process, and EPA
procedures for permit appeals are shown on Figures 1
and 2 respectively (see insert).
WHO MUST APPLY FOR A PERMIT?
Because each permit program is aimed at a different
(but often related) type of environmental problem, the
requirement to obtain a permit under each program
varies according to the Federal statutory requirements:
Under the NPDES program, any owner or operator of a
source that discharges pollutants into the waters of
the United States must have a permit. However,
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certain sources are not required to obtain an NPDES
permit, including:
o Irrigation return flows
o Vessels when being used for transportation (non-
transportation uses of vessels may require a
permit)
o Discharges of dredged or fill material which
are regulated by section 404 of the Clean Water
Act
o Agricultural and silvicultural operations pro-
ducing pollutants through runoff. (Permits are
required for discharges from concentrated ani-
mal feeding operation, certain fish farms,
aquaculture projects, and certain silvicultural
activities.)
Under the Hazardous Waste Management Program, any
person who owns or operates a facility for the treat-
ment, storage or disposal of hazardous waste must have
a permit.
Under the Underground Injection Control Program, five
classes of wells are regulated either by permit' or rule:
- Class I: (1) wells which inject hazardous
waste, other than Class IV wells.
(2) other industrial and municipal
disposal wells which inject fluids
beneath the lowermost formation
containing an underground source of
drinking water within one quarter
mile of the well bore.
- Class II: wells which inject fluids in connec-
tion with oil and gas production,
but not including the storage of gas.
- Class III: wells which inject fluids for the
extraction of minerals or energy.
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- Class IV: wells used to dispose of hazardous
wastes or radioactive wastes into
or above a formation which contains
an underground source of drinking
water within one quarter mile of
the well.
- Class V: injection wells not included in
Classes I, II, III, or IV, including
wells used to store gas.
Under State Section 404 (Dredge or Fill) programs, any
discharge of dredged or fill material into tne waters
of the United States, other than in waters that are
actually used or are susceptible to use for transporta-
tion of water-borne commerce and their adjacent wetlands
(the Corps of Engineers retains exclusive jurisdiction
over these waters), requires a permit unless it falls
within the exceptions provided under section 404 of the
Clean Water Act.
Under the Prevention of Significant Deterioration Pro-
gram, a permit is required for any new major emitting
facility in an area which is meeting any national
ambient air quality standards and the facility emits or
has the potential to emit more than 100 or 250 tons
(depending on source category) per year of any air
pollutant.
WHAT MUST AN APPLICANT SUBMIT?
Applicants must submit an appropriate State or EPA
application form. EPA has developed a new set of permit
application forms, as a part of the Agency permits
consolidation initiative. Form 1 will be used for any
RCRA, UIC, NPDES or PSD permit issued by EPA. Forms 2
through 5 collect information specific to these individ-
ual permit programs, and must be completed as appropri-
ate depending on the nature of the applicant's facility
or activity. Forms 1, 2b, 2c and 3 were published 1n
the Federal Register on the same date as the consoli-
dated regulations were published. They are currently
available. The remaining forms are being developed
and will be published in the Federal Register and
made available for use 1n 198H A complete 11st of
the consolidated permit application forms follows,
including highlights on forms that are presently
available:
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Form 1 - RCRA, UIC, NPDES and PSD permits
This form requires identification of the
applicant and general information
(including the use of maps) showing the
various pathways by which the facility
releases pollutants to the environment.
This will promote a unified examination
of the applicant's total residual waste
stream. This form also helps the
applicant determine which additional
forms to submit.
Form 2a - NPDES Publicly Owned Treatment Works
Form 2b - NPDES Animal Feedlots
This is a special simplified form to
be used by animal feedlots and fish
hatcheries to apply for NPDES permits.
(In most cases, small facilities are
exempted entirely from NPDES permit
requirements.)
Form 2c - NPDES Existing Industrials
All existing (currently discharging)
industrial dischargers seeking to
renew their NPDES permits must submit
this form. The form requires information
on the applicant's water discharge
operations, and requires applicants in
34 industries to test their process
wastewater discharges for some or all of
a list of 129 toxic pollutants (according
to a table in the instructions). This
will help EPA and applicants identify
and control the toxic pollutants.
Form 2d - NPDES New Industrials
Form 3 - RCRA facilities
This form ("Part A" of RCRA application)
will be used by facilities that treat,
store or dispose of hazardous waste
to obtain interim status under RCRA and
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to apply for RCRA permits. Information
requested on this form includes identi-
fication of all hazardous wastes handled
by the facility, an estimate of the
amount of wastes, and the methods used
to handle the wastes. EPA will require
facilities having interim status to
submit additional information ("Part
B") to apply for a permit. Because
narrative information is required for
Part B, EPA has not developed a form;
but the requirements are listed in 40
CFR Part 122 Subpart B.
Form 4 - UIC injection wells
Form 5 - PSD sources
WHERE SHOULD THE APPLICATION BE SENT?
If EPA is the permitting authority, applications
should be filed with EPA's appropriate Regional Office.
Where the State has an approved RCRA, UIC, NPDES or 404
program, applicants should use State forms and submit
them to the appropriate State agency. Notice of EPA
approval of a State program will be published in the
Federal Register.
THE ROLE OF THE PUBLIC IN PERMIT DECISIONS
The public has a number of opportunities to become
involved in permit decision-making. The major points
1n the process which affect the public are described
below and in Part 124 of the consolidated permit regu-
lations. Figures 1 and 2 also depict the procedures
for permit processing and appeals.
DRAFT PERMITS (§124.6)
When EPA or an approved State receives an applica-
tion that meets requirements, it may tentatively decide
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to deny the permit application or prepare a draft
permit. Both actions are subject to public review.
Draft permits can also be used to modify, termi-
nate, or deny a permit, or to issue an NPDES or 404
general permit.
FACT SHEET OR STATEMENT OF BASIS (§124.7, 124.8)
EPA is required to prepare a fact sheet or state-
ment of basis for each draft permit. A fact sheet is
required for draft permits covering major RCRA, UIC,
NPDES or 404 facilities or activities, those having
widespread public interest, or those which raise major
issues. In addition, 404 and NPDES general permits and
NPDES draft permits incorporating a variance require
fact sheets. The fact sheet provides an explanation of
how the draft permit conditions were developed. States
are also required to prepare fact sheets under §123.7.
A statement of basis is required for all other permits.
It presents, in less detail, the legal and technical
bases for the permit limits. States are not required
to prepare statements of basis.
Both the statement of basis and the fact sheet are
important components of EPA's administrative record.
These documents may be sent to the applicant, interested
State and Federal agencies, and on request to the
public.
THE ADMINISTRATIVE RECORD (§124.9)
The regulations require EPA to rely on the official
file, called the administrative record, to develop per-
mit conditions. The administrative record includes the
application, any required 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 adminis-
trative record requirements are not imposed on the
States, because they follow their own established pro-
cedures.
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PUBLIC NOTICE REQUIREMENTS (§124.10)
The regulations require EPA and the States to
notify the public regarding proposed permit actions,
including: preparation of a draft permit; public
hearings relating to any permit action; EPA NPDES new
source determinations; and certain other permit actions.
PUBLIC COMMENT AND HEARINGS (§§124.11; 124.12; 124.14)
The public notice must provide interested persons
with a minimum of 30 days to comment on the draft per-
mit or 30 days notice before a hearing.
The regulations require that a public hearing be
held whenever, on basis of request, substantial public
interest is shown. In addition, the permit-issuing
authority may schedule a hearing on its own initiative
(§124.12).
For EPA-issued permits, public comment takes on
added significance under the new regulations. All
parties, including applicants, are now required to
raise objections or provide relevant information at
public hearings or by the close of any public comment
period. However, approved States may have different
requirements for raising objections.
EPA 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 (§124.14).
FINAL PERMIT (§124.15)
After the close of the public comment period, EPA
issues a final permit. Applicants, interested parties,
and affected States are notified of their right to
appeal or contest the permit. If no comments are
received during the public comment period, the final
permit becomes effective immediately upon issuance.
Otherwise there is a 30 day waiting period before the
final permit takes effect, to allow time for appeals.
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HEARINGS/APPEALS ON FINAL PERMITS (§124.20, 124.74,
124.114)
Three different types of hearings or appeals are
provided in the regulations to contest.requirements in
EPA-issued permits. However, approved State programs
have their own procedures for hearings and appeals.
1) Appeal to the Administrator (RCRA, UIC, and PSD)
A RCRA, UIC or PSD permit may be appealed by filing
a petition for review by the Administrator of EPA within
30 days after the final permit is issued. In most cases,
there will be no formal hearing where a RCRA, UIC or
PSD permit is appealed.
2) Nonadversary Panel Hearings (NPDES, and other
closely related permits)
NPDES permits that constitute "initial licensing"
are subject to the Nonadversary Panel Hearing require-
ments of Subpart F of Part 124 of the regulations.
Where RCRA, UIC or PSD permits have been consolidated
with an NPDES permit that is to be processed under Sub-
part F, all permits will be processed together, except
where this would result in missing the one year statu-
tory deadline for a PSD permit.
3) Evidentiary Hearings (NPDES, and closely related
RCRA and UIC permits)
Other NPDES permits may be contested through the
Evidentiary Hearing procedures of Subpart E of Part
124. The termination of RCRA permits will also be
processed according to these procedures. In addition,
UIC and RCRA permits closely linked to the conditions
of an NPDES permit may, under certain limited circum-
stances, be contested through a formal evidentiary
hearing under Subpart E.
CONSOLIDATION OF PERMIT ISSUANCE PROCEDURES (§124.4)
Where the same facility or activity requires a
permit under two or more of the RCRA, UIC, NPDES or PSD
permit programs, the regulations allow EPA to consoli-
date permit processing of these permits so that all
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relevant aspects of the facility or activity can be
reviewed at the same time. EPA will generally use this
new provision to develop more effective and consistent
controls, or where greater efficiency would be achieved
by combining permit review procedures. Section 124.4
allows EPA to consolidate draft permits, public notices,
public hearings, and administrative records of related
permits. States are also encouraged to consolidate
issuance procedures for State permits, and to consider
joint permit processing with EPA, where appropriate.
V. PUBLIC COMMENTS ON THE PROPOSED CONSOLIDATED PERMIT
REGULATIONS
After the close of the public comment period, the
comments in the June 14 proposal were catalogued by
each section of the proposed rule. EPA's staff devoted
almost one staff year of effort in reading, analyzing,
tabulating, summarizing, and responding to the public
comments, in the process of developing the final
regulations.
MOST COMMONLY ADDRESSED ISSUES
Almost every section of the proposed consolidated
permit regulations drew substantive comments. The
preambles to the final regulations and application
forms discuss all these comments and explain EPA's
analysis and decisions. A synopsis of 12 issues which
are representative of major concerns for a large number
of commenters is provided below, with citations to the
final regulations.
1. Complexity of the regulations.
Proposed and Comment: Many commenters indicated
that the proposed consolidated regulations were too
complex and difficult to use.
Response: EPA agreed with these comments and has
taken a number of steps to make the regulations easier
to use and less confusing. Tables and charts have been
added and many editorial and format changes have been
made to help clarify the regulations. Each Part to the
regulations contains "roadmap" sections to assist the
reader. EPA also will prepare program-specific packages
which contain the appropriate parts of the regulations
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for persons interested in only one program. Other
materials that explain the regulations are listed on
the back cover of this guide.
2. Duration and review of permits (Sections 122.9 and
122.15)
Proposal and Comment: The proposal provided that
RCRA and UIC permits would be issued for terms up to
the life of the facility, and would also be subject to
mandatory review every five years, in order to ensure
effective periodic review of the conditions of RCRA and
UIC permits. NPDES and 404 permits would be issued for
terms that do not exceed five years, as required under
the Clean Water Act. When a facility or activity had
penults under two or more programs, however, a "cross-
review" of each issued permit would have been conducted
any time a permit for that facility or activity was
issued, modified, reissued or terminated. The proposal
provided that modification or revocation and reissuance
of a permit could be based upon a related change to
another permit issued to the same facility or activity.
This issue received a large number of public comments
stressing the need for certainty in permit conditions
and the need to prevent frequent reopening and revision
of permits.
Response; EPA made significant changes to these
requirements. The final regulations revise the proposal
by establishing fixed-term permits for all RCRA permits
and for Class I UIC permits. Accordingly, permit reis-
suance, not permit modification, will be the primary
mechanism for adjusting permit requirements. Also, the
grounds for permit modification have been narrowed in
order to provide a maximum amount of security to per-
mittees during the term of the permit. Under the new
approach, all RCRA facilities and all Class I UIC wells
will be issued permits for up to ten years duration.
Wells for enhanced recovery and special process mining
(Class II and III) will still receive permits for up to
the life of the facility. Because the permit is the
vehicle for applying statutory requirements, holders of
these fixed-term permits who comply with permit require-
ments will not be subject, for the most part, to
enforcement under the SDWA or RCRA.
19
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3. Timing of permit issuance (Section 124.4)
Proposal and Comment: The proposal provided that
if a facility needed more than one permit, the permit
applications could be delayed at the initiative of the
applicant so that they could be submitted at one time.
The proposal also provided that EPA could consolidate
the draft permits, public hearings, administrative
record and other requirements of processing permits
for a single facility. Many commenters objected to
these provisions, fearing that the consolidated proce-
dures could hold down issuance to the pace of the
slowest permit. Most felt that consolidation of pro-
cessing should only be at the option of the applicant.
Response: EPA has deleted the proposed provision
which allowed applicants to delay submitting their
applications in order to consolidate them with applica-
tions under other permit programs, in response to many
adverse comments by the regulated community. EPA has
retained the provisions allowing EPA to consoli-
date various steps in processing permits, despite a
number of adverse comments. This is an optional mecha-
nism to be applied on a case by case basis by EPA
Regional staff when a more comprehensive review of a
multiple permit facility is appropriate and when effi-
ciencies and economies will result.
4. Signatories (Section 122.6)
Proposal and Comment: The proposal required that
corporate vice-presidents sign and certify that they
have personally examined and are familiar with the
information in the permit application and believe the
information to be true, accurate, and complete based on
inquiry of the individuals responsible for obtaining
the information. Many commenters objected to this pro-
vision as being unduly burdensome on corporate vice
presidents.
Response: EPA continues to believe that senior
corporate executives should have knowledge of and be
responsible for the corporation's compliance with
environmental laws. The permit application certifica-
tion requirement for corporations has therefore not
been changed. As in the proposal, however, other
20
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reports and information required to be submitted by
corporations may be signed by individuals authorized by
senior corporate executives. In addition, the exception
for Class II wells is retained in the final regulations.
5. Transfers (Section 122.14)
Proposal and Comment: The Proposal required that
permits could be transferred only if written notice
were given to the appropriate EPA or State Director con-
taining a specific date for transfer of permit responsi-
bility and if the Director failed to object to the
transfer. Transfer was a cause for modification or
termination of the permit. Many commenters objected
that the grounds for disapproving a transfer were
vague, that the list of normal grounds for terminating
or modifying a permit ought to be sufficient, and that
if there were to be additional grounds applicable to
permit transfers they ought to be included in the
section listing all causes.
Response: EPA continues to believe that the rights
associated with a permit attach only to the person
authorized through the permit and are not freely trans-
ferable. While retaining some features contained in
the proposal, the transfer of permit provisions have
been extensively redrafted in response to comments.
The final regulations provide that NPDES permits and
permits for UIC wells not injecting hazardous waste may
be transferred automatically, if a written agreement
for transfer of permit responsiblities is sent to the
Director. For UIC facilities, the new permittee must
also demonstrate that the requirements for financial
responsibility will be met. The Director does have the
right to require that a new permit application be sub-
mitted, or to require that the permit be modified to
reflect the change in ownership. The permit may also
be modified to reflect the new aspects of the operation
or for any other cause following the transfer.
For all other activities covered by the regula-
tions, including RCRA facilities and UIC wells injecting
hazardous wastes, however, all permits must be modified
upon transfer of ownership or operational control of a
permitted facility. This is necessary because these
permits contain conditions that are personal to the
permittee, such as closure and post-closure plans, the
21
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contingency plan and provisions for financial responsi-
bility. Most of these UIC and RCRA permits will there-
fore require modification and a new permit application
to reflect the new ownership. However, certain trans-
fers may only require processing through the "minor
modification" provisions of §122.17. The transfer pro-
visions are applicable to State programs under §123.7.
6. Interim authorization (Part 123, Subpart F)
Proposal and Comment: Section 3006 of RCRA pro-
vides that States may be granted a two year "interim
authorization" to administer RCRA programs which are
"substantially equivalent" to the Federal program, to
allow time for States with existing hazardous waste
programs to develop programs capable of receiving final
authorization without imposing separate and parallel
Federal requirement. The proposal provided that States
needed to control either on-site or off-site disposal
of hazardous wastes to be eligible for interim authori-
zation. A manifest system would not have to be imple-
mented during the interim authorization period unless
the State already had the authority to do so. Comments
on the proposed requirements reflected a wide range of
views; some argued that requirements should be flexible
to facilitate State assumption of program administra-
tion, while others argued that stricter standards were
necessary to ensure national uniformity and protection
of the environment equal to that provided by the
Federal program.
Response: EPA has made the requirements for interim
authorization more explicit, taking into account
existing State efforts to control hazardous wastes.
States must now control both on-site and off-site treat-
ment, storage and disposal of hazardous waste to
receive interim authorization, except where a type of
facility does not exist in the State on the date of
interim authorization. Also, the States now are
required to have a manifest system. However, in
order to accommodate the fact that many States do not
have existing authority to implement a manifest system,
the manifest system may be run by EPA during the interim
period. Finally, States must control a universe of
hazardous wastes which is "nearly identical" to the
hazardous wastes regulated by the Federal program.
22
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Because the Federal program is to become effective
iri two phases, the final regulations allow for two
corresponding phases of interim authorization.
"Phase I" will cover generator and transporter require-
ments and preliminary facility standards. "Phase 11"
will cover permitting of hazardous waste treatment,
storage, and disposal facilities. EPA gave advance
notice of this phasing of interim authorization in the
January 29, 1980 Federal Register (45 F.R. 6752).
7. State enforcement authority (Section 123.9)
Proposal and Comments: The proposal required
States to have the ability to seek civil penalties and
criminal fines for the same offenses and in the same
amounts as EPA under the RCRA, UIC, NPDES, and 404
programs. States were also required to have the
ability to obtain injunctive relief when necessary.
Many States objected on the grounds that their laws did
not provide for this authority and that they would have
difficulty in obtaining new authority. Commenters also
objected to the requirement that States collect civil
penalties in accordance with EPA's penalty policy, as
interfering with the States' enforcement discretion.
Response: EPA has changed the final regulations
to reduce the minimum level of fines for States, but
still requires, in most cases, the same enforcement
mechanisms as EPA. An exception is made for Class
II wells under the UIC program: States may substitute
pipeline (production) severance for criminal enforcement
concerning these oil and gas wells. Another exception
is made for State hazardous waste programs: States
must have authority to imprison violators up to six
months for certain criminal offenses. EPA believes it
is necessary that minimum levels of fines be established
to assure national consistency and equal treatment by
States during enforcement actions. States also must
have the same array of enforcement tools as EPA so that
State programs are sufficiently flexible to handle
different violations in different ways.
EPA has not changed the penalty policy requirements.
Although States are required to follow the penalty
23
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policy, this does riot require a State to have any par-
ticular statutory language or regulations, and there is
a great deal of flexibility in the application of these
provisions. EPA believes that the penalty policy is an
important Agency initiative and can not be truly effec-
tive unless applied with some degree of uniformity
nationwi de.
8. Minor drainage (Section 123.92)
Proposal and Comment: Section 404 of the CWA
states that certain farming, silvicultural and ranching
activities, including "minor drainage," are not sub-
ject to the requirement to obtain a permit. A large
number of commenters objected to the proposed definition
of "minor drainage" on the grounds that it was too
narrow and generally limited the exemptions to activi-
ties which were already outside the scope of section
404.
Response: In light of inconsistent legislative
history and the large number of comments, the definition
of minor drainage has been revised to more clearly and
soecifically allow for the exemption of certain agricul-
tural and silvicultural activities with minimal adverse
impact on the environment.
9. Best Management Practices for 404 (Section 123.92)
Proposal and Comments: The Clean Water Act of
1977 exempted the construction or maintenance of farm
roads, forest roads or temporary roads for moving
mining equipment from the requirements of section 404,
if these roads were constructed and maintained in
accordance with best management practices (BMPs). The
proposed specification of these minimum standard BMPs
received more comments than any other issue. Com-
menters' objections fell into two basic categories: (1)
that it is not appropriate or legal for EPA to prescribe
a set of nationwide BMPs for State 404 programs; and
(2) that EPA could not require BMPs that controlled, to
any extent, aspects of road construction not directly
involving the discharge of dredged or fill material.
Response: EPA continues to believe that specifi-
cation of nationally applicable minimum basic measures
24
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is the best way of assuring that the objectives of
section 404(f)(1)(E) will be met. The list of BMP
requirements has been revised, however, to focus more
narrowly upon environmentally protective measures that
are directly linked to the methodology and siting of
discharges for road construction. These measures will
help reduce adverse impacts of road construction in or
adjacent to waters of the United States.
10. Regulation of Oil and Gas wells
Proposal and Comments: Many commenters questioned
the need for regulations governing oil and gas wells
classified as Class II wells under the UIC program.
These commenters cited sections of the SDWA prohibiting
regulations interfering with oil and gas production
unless necessary to assure that underground sources of
drinking water will not be endangered by injections.
Response: EPA continues to reject the interpreta-
tion that the SDWA prohibits regulation of Class II
wells. However, the scope of coverage of Class II
wells has been changed to move the regulation of the
storage of natural gas and other gaseous hydrocarbons
from Class II to Class V wells. Other hydrocarbon
storage (e.g. in liquid form) will remain under Class
II wells. EPA has made this change because it believes
that in most cases the underground storage of natural
gas poses no threat to underground sources of drinking
water. This type of storage will nevertheless be
regulated under Class V through an authorization by
rule.
The regulations also contain the following provi-
sions to avoid any undue burden: authorization by rule
for existing Class II wells for the life of the
well; lifetime permits for new Class II wells; addi-
tional time (three years) for compliance with construc-
tion requirements; area permitting for entire well
fields; allowance for new wells within an area permit
to be installed prior to notice to the Director; and
elimination of the area of review and corrective
action requirements for existing Class II wells.
25
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11. Application-based requirements for NPDES (Sections
122.15(a)(5), 122.61(a) and 122.62(e))
Proposal and Comment; The proposal would have
limited all NPDES permittees to discharging no more
than five times the level of all pollutants reported in
their permit applications. Commenters objected that
the limits were illegal, technically unsupportable, and
that they imposed too great a burden for the stated
objectives.
Response: Application-based limits have been
replaced by application-based reporting requirements
and permit modification, and by a requirement that
permits control all significant toxic pollutants.
12. Application form testing requirements for NPDES
(Section 122.53(d))
Proposal and Comment: All primary industries plus
two secondary industries would be required to test one
72-hour composite sample of process wastewater effluents
for 129 toxic pollutants. Commenters objected that
requirements were burdensome and unnecessary, because
many toxic pollutants could not be expected to be
present. On the other hand, many commenters felt that
in addition to chemical testing, some biological toxi-
city testing should be required.
Response: Based on data available through effluent
guidelines development, EPA has specified selected
categories of pollutants for primary industries to
test, using 24 hdur composite samples. Biological
toxicity testing is not routinely required because
such information will not be useful in all cases.
26
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OTHER MATERIALS ABOUT PERMITS CONSOLIDATION
In addition to this pamphlet, other publications
and materials are available or are being developed on
EPA's permits consolidation program:
o Agricultural Activities and Consolidated
Permitting
o Building State Solid and Hazardous Waste
Management Program: Everybody's Respon-
sibility (SW-83J)(C-5)
o Hazardous Waste: A Guide for Obtaining
A Facility Permit from EPA (SW-765)(C-5)
o A Guide to the Underground Injection Control
Program
o A Guide to the Dredge or Fill Program
o EPA Videotape on Permits Consolidation (available
on a loan basis from EPA Headquarters and 10
Regional Offices)
o Reprints of the regulations containing require-
ments applicable to only one program, (e.g.,
reprint of RCRA program requirements)
For further information on these additional
materials, write to:
Permits Division EN-336
Office of Water Enforcement
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
To obtain additional copies of this guide and the
regulations, write to:
Library Services MD-35
U.S. Environmental Protection Agency
Research Triangle Park, N.C. 27711
27
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Figure 1-Conventional
EPA Permitting Procedures
tf PSD
major
modification
CONTINUED ON
FQllOVtflNG PAGE
Judicial
Informal
appaal
to
Administrator
§124.5(b)
Raquoata lor
or Director
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modify
rovofc*
and
reissue
or
terminate
permit.
§9122-9.
122.6,
122.7,
1243
Statement of
baala or
fad afloat
§§124.7, 124.8
Administrative
record
24,9
Public
Public
notle*
common!
of
period;
draft
requests for
permit.
public
csmmtot
hearing
period
§§124.11
and
124.12
twarinf
(optional)
§124.10
§124.14-New statement of basis* fact sheet or new draft permit.
< ¦¦¦¦ c
Administrative
record
§§124.18,
124.122
A
Close of
period,
all iasuea
raised,
8124.13
Public
hearing
§124.12
Public
notice
of
hearing;
aitand
eommont
pa Hod
§9124.10,
124.12
requests
P*e*l
hearing
laao figure 2)
domed or
no requests
-------
EPA Appeal Procedures |
petition for r*vl*w
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^•cIiIak
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-------
Figure 2-Non-Adversary Panel Procedures
Reeueet
denied er
Me
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124.91
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S124.t2*(b), (c)
•RIMilMlttA
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»124.120
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«124.7,124.8
hlMlc MfeHof
{optional)
99124.112,
124*112
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9124.124;
record for
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§9124.116
Alto notice of
hearings uiuier
991 24,74 end
124.114
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