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•'* * *,
"5. There is hereby transferred
from the'Department of Public Health to
the Department of Natural Resources, by
a Type II transfer, as defined by Sec-
tion 3(b) of Act 380 of Public Acts of
1965, the statutory authority, powers,
duties, functions and responsibilities
set forth in the following:
"a. Act 98 of the Public
Acts of 1913, as amended, being section
325.201, et seq. of the Compiled Laws
of 1948 insofar as the statute provides
for the supervision and control ox
planning, construction, operation and
maintenance of sewage systems and the
certification of sewage treatments,
works, operators. * * *."
Pursuant to the provisions of that Act, i.e. 1913
PA 98, the Department of Natural Resources has:
"a, Supervisory and visitoriai
po«er and control over all municipalities
furnishing sewerage and/or sewage treat-
cent service ar.d ever ~hs plir.tr ar.d
systems owned or operated by such inunici-
palities.
"b. Power and authority at all
reasonable times to exist upon the
sewerage systems from other orooertv
of the municipality for purposes of
inspecting the same,
"e. Authority to make and enforce
such rules as he may deem necessary,
governing and providing a method of
conducting and operating the entire or
any part of sewerage systems including
sewage treatment works owned or operated
by the municipality,"
51
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Section 8 of Act 98 provides;
"In case of governmental agencies}
corporations, associations, partnerships,
or individuals operating water treatment
planes or sewage treatment works, it
shall be the duty of such governmental
agencies, corporations, associations,
partnerships or individuals co file with
the state healch ecassissioner such
reports under oath as ma/ be required
from time Co time. Such reports shall
.be sworn to by any responsible officer
or person acquainted with che facts and
employed by such governmental agency,
corporation, association, partnership
or individual at the time, of Baking
said report. Axiy person making a false
statement in such repose shall be deeoed
guilty of and subject co the penalty
of perjury,"
Such departmental authority to supervise municipal
treatment facilities provides a legal basis for adopting a
reporting program fully compatible witr, federal requireoer.ts
outlined on headings 5 and 6 of Chis appendix.
(itespons ibility for adoinis taring Act 95 authorities
transferred by the Lxecutive Order have been delegated to che
£:< ecu rive Secretary of the Water Resources Corcraiss icn is the
Deputy Director of the yepartment of Natural Resources in
charge of the Lnvironmental Protection Branch of said department.)
52
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7, Authority to_Insure Compliance bv Industrial
Users with Sections:._204_lbJ , 307, and 30S.
State law provides authority to insure that any
industrial user of a publicly owned treatment
•works will comply with FVPCA requirements con-
cerning :
a. User charges and recovery of construction
costs pursuant to Section 204(b);
b. Toxic pollutant effluent standards and pre-
treatment standards pursuant to Section 307;
and
c. Inspection, monitoring and entry pursuant
to Section 308.
(Federal _Authority; FVPCA § 402(b)(9);
40 CFR 124,45(e)
S_c_ate Statutory and Re:zulator^_Aut_hori;uv'_:
1929 PA 245, Sections 2 and 5, 1970 CL. 323.2,
323.5; 1933 PA 94, Sections 3, 4(e), 29 and
39, 1970 CL 141.103, 141.104(e), 141.129 and
141.139; 1949 PA 222, Sections 2 -and 3, 1970
CL 323.102, 323.103.
Remarks of the Attorney General
a. Us e r
In accordance with Section 204(b) of the Federal
Ac;
"shall not approve any grant for
treatment works under Section 201(g)(l)
after March 1, 1973 unless he shall
first have determined that Che applicant
* * *
(E) has made provision for the
payment to such applicant by the indus-
trial users of the treatment works, of
that portion of the cotst of construction
of such treatment works (as determined
53
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by the Administrator) which is ailocable
to the treatment of such industrial
wastes to the extent attributable to
the Federal share of the cose of con-
struction. * * *. "
Applicants for federal assistance under provisions
of PL 92-500 within the State of Michigan will in each instance
be either a county, city, village, township school district,
port district, or metropolitan district; or a combination thereof
Pursuant to 1933 PA 94, as amended, 1970 CL 141.101,
et seq; MSA 5.2731, ae seq (hereinafter Revenue Bond Act of
1933) these public corporations are authorized:
Section 39.
". . .to apply for and accept
grants or any other aid which the United
States government or any agency thereof
has authorized or may hereafter author-
ize to be given or made to the several
states of the United States or to any
political subdivisions or agencies there-
of *.:ithir. the ccsrcs for die construction
of public improvements, including all
necessary action preliminary thereto,
eh« purpose of which is to aid in the
prevention or abatement of water pollu-
tion."
Public improvement which may be oade by public eo;
portions pursuant to authority granted by the Us venue Bond
Act of 1933, include:
"Section 3. * * *
"(h), » , (S)ewage disposal systems
(including .ill sanitcry sewers, plants,
works, inscrumentalicies and properties
used or useful in connection with che
collection, treatment and/or disposal
of sews°e and/or industrial wastes);
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Such Improvements may be had without recourse to
the issuance of bonds and as previously indicated with federal
ass is tance (See Morlev Brothers v Township of Carrollton,
303 Mich 285 (19^3) , Sections Me) and 39 of Revenue Bond
Ac: of 1933).
To finance the operation and improvement of the
system (including recoupment of capital outlay and federal
grants) the public corporation may assess reasonable rates
against users of the systems. (Detroit v Highland Park,
326 Mich 78 (1949).
The municipality may, as a condition for receipt
of federal funds, enter an agreement with the federal govern-
ment which agreement sets forth either the charges assessable
or a definitional or algorithmic standard by which fees mcy
be computed.
Collection of such fees is by the municipality.
We find no authority by which the state or its
agencies may insist upon or enzorce sucn user cnarges.
To quote from the Revenue Bond Act:
Section 29.
"Rates charged for the services
furnished by any public improvement
purchased, acquired, constructed, improved,
enlarged, extended and/or repaired under
the provisions of this act shall not be
subject LO supervision or regulation by
any state bureau, board, commission or
other like instrumentality or agency
thereof. "
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Similar authority is given by 1949 PA 222;"1970 CL
323.101, et, seq, Section 1 of Ace 222 provides:
"Any public corporation is hereby
authorized to apply for and accept grants
or any other aid which the United States
government or any agency thereof has
authorized or may hereafter authorize to
be given or made to the several states
of the United States or te any political
subdivisions or agencies thereof within
the states for the construction of pub-
lic improvements, including all necessary
action preliminary thereto, the purpose
of which is to aid in the prevention or
abatement of water pollution,"
Pursuant to Section 3;
"Any public corporation is further
authorized to accept contributions and
ocher aid from industries for che pur-
pose of aiding in the, prevention or
furtherance of such purpose to enter
into contracts and Agreements with indus-
tries covering the following:
'<* * *f
"(d) When determined by its
governing body to be in che public inter-
est and necessary for the protection of
the public health, «ny public wcrpcrr. ti;;r:
is authorized to enter into and perform
contracts, whether long-term osr short-
term, with any industrial establishment
for the provision and operation by the
public corporation of sewerage facilities
to abate or reduce the pollution of
waters caused by discharges of industrial
wastes by the industrial establishment
and the payment periodically by the
industrial establishment to che public
corporation of amounts at least suffi-
cient, in the determination of such
governing body, to compensate the public
corporation for the cost of providing
56
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(including payment of principal and in-
terest charges, if any), and of operating
and maintaining the sewerage facilities
serving such industrial establishment:
Provided, That the exercise^by any pub-
lic corporation of such powers outside
of its corporate limits shall be subject
to the legal rights of the political
subdivision within which such powers are
to be exercised and shall.also be subject
to any and all constitutional and statu-
tory provisions relating thereto,"
Enforcement or collection proceedings for rates or
charges assessed by and/or contractual obligations owed to
4
a municipality for waste treatment services provided to
industrial dischargers may be commenced by such municipality
in an appropriate court should such industrial users default
in payments,
b. Toxic pollutant effluent standards.
Pull citation and discussion of state authority
adequate to insure compliance by industrial users with toxic
pollutant effluent standards may be found under headings 1,
2a and 11 of this -ippendix,
•
c . Inspection^ monitor ing .ind entrv.
Full citation and discussion of inspection, monitoring
nnd atitry requirements mr.y be found under headings 5 and 6 of
this ^
57
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Au g h p r.x t v bo I s s u_e N at ice s . Tr a n s m i t Dae a n n d
Prgvjjie Opportunity for Public Huar_in_gs_.
State law provides authority to comply with
requirements o* the rVPCA and t,?A Guidelines
for "Se.tte Program Lleoaents Necessary for Parti-
cipation in the National Pollutant Discharge
LliminAtion System," 40 CFK Part 124 (hereinafter
"che Guidelines") to;
a. Notify the public, affected States and
appropriate governmental agencies of proposed
actions concerning the issuance of p^raits;
b. Transmit such documents and data to and frons
the U.S. Lnvironmental Protection Agency and
to other appropriat* governmental agencies
as aay be necessary; and
c. Provide "an opportunity for public hearing,
with adequate notice thereof, prior to ruling
on applications for peraits .
(Federal Author icy: Genejra^l^;: WPCA § §
101(e) and 304(h) (2) (B) )
Function 8(a): PWPGA §5 402 (b) (3) (public
notice), 402(b}(5) (notice to affected staxes),
402(b) (6) (notice co Aray Corps of engineers);
40 CFii 124.31 (tentative permit determinations)
124.32 (public notice), 124.33 (fact sheets)
Function 8(b) : FVPCA JJ 402 (b) (4) (notices
and permit applications to it, PA) , 402(b)(6)
(notices and fact sheets to Artsy Corps of
Lngineers); 40 CF.-t 124.22 (receipt and use
of Federal data), 124.23 ( transniss ion of
aata ;o ^rA) , 114.^4 (notice to ouner ^overr. -
toent agencies), 124,46 (transmission of
proposed perrsits to LPA) , 124.47 (transmission
of issued peroits to &PA) .
Funetion S(c): WPCA § 4Q2(b)(3) (oppor-
tunity for publie hearings); 40 CF*i 124.36
(public hearings) , 124,37 (notice of public
hearings) ,
t at e Sjg_nc_u_co r_y_^jid _K«jE_ul_a corAuthri t_y_ :
1929 PA 245, Title and beccions 2 and 5;
1970 CL 323.2, 323.5; MSA 3.522, 3.525,,
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Remarks o_f__.the_ Attorney General
Present provisions of the Michigan water resources
act require public hearings only upon petition by any person,
including a permittee, aggrieved by the terms or conditions
of a permit issued by the commission or aggrieved by the
coomissions refusal to issue a permit. (Sections 7 and 8,
Michigan water resources set).
Section 8a allows:
"(A)ny person aggrieved by the
restriction of polluting content, waste
or pollution, or any other order of
permit of the cocmissioii, . , .(to) file
a sworn petition with the commission
setting forth the grounds and reasons
for his eoaplaint and asking for 8
hearing of the matter involved."
Upon receipt of such a petition the cocDnission is
directed to fix the tice anc place for a hearing ol tins peti-
tion. Following such hearing the cocomission shall render its
decision, which decision is conclusive unless reversed or
modified upon review by a court of competent juriedietion.
Section 8b provides in part:
"* * * if the permit or denial is
not acceptable to the user, he aay re-
quest * hearing on the matter involved,
following which the e asm is si on's . . .
permit or denial in this connection
shall be conclusive unless reviewed in
accordance with Act 306 of the Public
Acts of 1969, as amended, in the circuit
court for the county of Inghaoi, for the
59
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county in which the user resides or for
the county in which che use is con tea -
plated, upon petition therefore filed
within 15 d«ys after service upon the
user of the. . .permit or the denial
thereof."
In che absence then of a legislative mandate co
issue permits only "upon a record and afcer an opportunity
for an evidentiary hearing," may the Water Resources Commission
by rule provide chat pennies will be issued only after public;
notice and provision for the opportunity to request a public
hearing?
In my opinion, there is no statutory ban Co che
adoption by the V'Ater ^sources Commission of administrative
procedures which provide for public notice of its intent to
issue permits and providing members of the public an oppor-
tunity to request a public hearing prior co issuance,
The entitlement of Act 265 includes among its
purposes :
"to authorize the_es__c.ab_l_is__hm_en_t___g_f
permit restrictions and Pirog rgra s to assure
compliance with applicable federal lav
ana re,Ruj.«t ions . ' ^
Section 2 of the water resources act provides that:
"The cesamission shall organize and
make its own rules and procedure. . ..
The commission shall enforce this act
end shall promulgate such, rules as tnay
be deemed necessary co carry out this
60
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The commission may, In accordance wich the cited
authority, adopt procedures designed to infora and elicit
public comment upon proposed discharge permits. Such proce'
'dures appear only proper. If aggrieved citizens aay coopel
che commission to reconsider permits issued by invoking
rights or standing provided by Section Sa, wisdom dictates
chat the commission solicit public participation prior to
permit issuance.
In Ranke_v Oprporation and Securicies_Cpcmission,
317 Mich 304, 309 (L947) the Michigan Supreoe Court quoted
and adopted the following:
"It is true that an administrative
agency may not under the guise of its
rule making power, abridge or enlarge
ins authority or exceed the powers given
to it by the statute, the source of its
power * * *. However, 'the authority
of an administrative board or officer
* * * to adopt reasonable rules and
regulations which are deemed necessary
to the due and efficient exercise of the
powers expressly granted cannot be ques-
tioned. This authority is implied iron
the power granted.1"
Tr. ^2 .As Jur 7-5. ? ?16, ^r sea. . It Is sr.ated:
"Administrative boards, commissions,
and officers have no coanson-law powers.
Their powers .".re limited by the statutes
creating then to those conferred expressly
or by necessary or by fair implication.
* * * In determining whether a board or com-
mission has a certain power, the authority
given should be liberally construed in
light of the purposes for which it was
created, and that which is incidentally
61
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nccess-nry co ,1 Cull exposition of Che
legislative incsnt should be upheld .-s
being geriD.ino Co Che Irrw. * * * Impli-
cation of ru^cussary powers may bu
«specislly appropriate in the field of
internal. Administration. Ho««v«r,
powers should noc be extended by impli-
cation buyond whac may b« necessary for
their jusc .ind reasonable execution,"
In adfflinis Csj ring che NPOLi. program pursuant to
-uthoriz^tion by t.PA th« commission will b« bound by concisions
of ch« agrcum«nt negocinced «u «i condition prucedunt to such
authorization. Accocaingly, data will be forwarded in
compliance wich functions 8(a) and 8(b).
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Authority to Provide Public Acces_s to_ I r.fomatign.
State law provides authority Co make information
Hvailable Co Che public, consistent with chii
requirements of che WPCA and che Guidelines,
including thu following:
a. uxcept Insofar as trade secrets woi-ila be
disclosed, che following information is
available Co che public for inspection and
copying:
(1) Any NPDt-i permit, permit application,
or form;
(2) Any public comments, testimony or other
documentation concerning a permit appli-
cation; and
(3) Any information obtained pursuant Co any
monitoring, recording, reporting or
sampling requirements or as a result of
sampling or other investigatory activities
of the b'cate.
^
b. The b.cate may hold confidential any inforfcfltio
(except effluent data) shown by any person to
be information which, if made public, would
divulge methods or processes entitled to pro-
tection as trade secrets of such person.
(federal Authori:v: FVPCA 5§ 304(h)(2)(H) ,
308(b), <.G2(b}(2) and 402(j); 40 CT.-t 124.35;
btate btatutorv and xezulacory A
1929 PA 2A5 Seccion 6b; 1970 CL 323.6b;
1969 PA 306 Sections 11 ana 22; 1970 CL
24.221, 24.222.
of _Jhe Actorne v_ _CeLf}e_ra_l
In accordance with bections 21 and 22 af Chapter 2
of che Administrncive Procedur&s Ace of 1969:
Section 21.
"(1) An agency whether or not
authorized or directed by lav to promul-
gate rules shall publish nno make
63
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rival Labie for pub Lie inspection and
copying during i;:.E business hours or
on subscription on request of any per-
son:
(a) Final orders of decisions
in contested cases and che records on
which they were made;
(b) PrOTulgar.ed rules;
(c) Other written statements
which implement or interpret law, rules
or policy, including but not limited co
guidelines, manuals and forms wich
instructions, ^aoptad or used by che
agency in the discharge of its functions.
(2) To the extent required to pr«-
vene an unwarranted invasion of personal
privacy, an agency may delece identifying
details when it publishes or makes avail-
able a mntter required to be published
and made available for public inspection;
(3) The publications may be in
pamphlet, loose-leaf or other appropriate
form in printed, mineographed or other
written manner, £xcept as otherwise pro-
vided by law, che agency may charge not
more than cost for each copy of the pub-
Lieation.
Section'22.
(1) This chapter does not apply Co;
(a) Material exempted freci dis-
closure by statute;
(b) Interaaenuy or incra-aaency
letters, memoranda or statements which
would not be available by law co A party
other than in agency in litigation with
the agency And which, if disclosed, would
impede the agency in the discharge of its
functions ;
(c) Material obtained in confi-
dence £roca a person, matter privileged
by low and trade secrets;
(d) Financial and coraaiereia 1
infora.ition relating co a specific regu-
lated parson prepared by or for the use
of an Agency responsible for the regula-
eion or supervision of the person;
(e) Investigatory materials coffl-
piled or used for regulatory or law enforce-
ment purposes except Eo the extent available
by law to a party to a contested case;
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(f) Material the disclosure of
which would constitute an unwarranted
invasion o£ privacy.
(2) This chapter does not authorize
the withholding of information otherwise
required by law to be ra^de available to
the public or to a parcy in a contested
case."
Under Section 91(1) of the Administrative Procedures
Act:
'Vhen licensing is required to be
preceded by notice and An opportunity
for hearing, the provisions of this act
governing a contested case apply,"
A contested case is as defined by Section 3(3) of
the Administrative Procedures Act of 1969:
"* * *.
"(3) 'Contested case' means a pro-
ceeding , including but not limited to
rate -making , price-f i-xing and licensing.,
in which a cetercination of the legal
rights, duties or privileges of a nazed
party is required by la-j to be made by
an agency only on a record and after an
opportunity for an evidentiary hearing."
Section $b of the water resources act provides that
"tvery person, doing business
this state discharging waste water to
the waters of the state or to any sewer
system, which contains wastes in addition
to sanitary sewage shall file annually
reports on forms provided by the comcis-
sion setting forth the nacure of the
enterprise, indicating the quantities
of materials used in and incidental to
its manufacturing processes and including
by-products and waste proaucts , v'nich
appear on a register of critical materials
as compiled by the coaaiiss ion with th<=
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advice of an advisory cosaitc.ee of environ'
mental specialists Jeiignaced by the
ccxamission and Che estimated annual tocal
ftuuaber* of gallons of waste water ins lading
but .not limited co process and cooling
wacer to be discharged co the waters of
Che state or ea any sewer system^ The
information shall be used by the commis-
sion only for purposes of water pollution
control. The cooniss ion shall provide
proper and adequate facilities and pro-
cedures co safeguard the confidentiality
of manufacutrictg proprietary processes
except that confidentiality shall not
extend to vjaste products discharged to
the waters of the state. Operations of
a business or industry which violate this
section may be enjoined on petition of
the wflter resources cocnfflission to a court
of proper jurisdiction. The coramission '
shall promulgate rules as it deetus neces-
sary to effectuate the administration of
this section, including where necessary
co tneee special eiscusscances , reporting
aore frequently than annually."
As 1 interpret provisions of Law cited above effluen?
daca, i.e. tb« nature and amounts of wast* effluents discharge-
by permittees is not to be' created as confidential. Neither
GO 1 Interpret Section sb of tha vacer resources set «s pro-
tecting "confidential cotsmercial and financial inforaation,"
The information protected la that relating to manufacturing
processes,
•
In accordance with 1968 PA 329, 1970 CL 752.771, ec
*eq; MSA 28.643(51), et 9«q;
S«csioo 2.
"Any person who, with intent to
deprive or withheld from che owner there-
of the control of & crade secret, or with
an intent to appropriate a trade secret
to his o^n use or to the use of another,
steals or embezzles an article representing
s crade secret or without authority mat«es
or causes to be Bade a copy of an article
66
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representing a trade seureC, is guilty
of a mis demeanor and shall be fined noc
more Chan $l,OOO.OQ-or imprisoned for
not more than 1 ye;ir, or both."
As defined by chat statute, trade secrec means
Seccion 1. * * *
"(3) 'Trade secret1 deans the whole
or any portion or phase of any scientific
or technical information, design, process,
procedure, foraula or improvement which
is secrec and of value; and a trade secrec
is considered to be secrec wnen the owner
thereof takes measures co prevent it from
becoming available co persons ocher Chan
chose selected by che owner co have access
chereco for limited purposes."
We do not construe Che criminal provisions above
ciced, to forbid che Water itesources Commission from forward
any article representing a crade secret to the L?A in those
instances where the information is provided the state by a
proprietor permittee in possession of a federal N'PEES perzit
issued by che St*ce of Michigan, neither do we conscrue che
cited act to forbid cransmission of such "secrets" to EPA
where received by the V.'ater Resources Commission as part of
reports or other Justification supplied by an applicant for
a federal (NPDLS) permit to be issued by the Water Resources
Commiss ion.
67
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Authority Co Terminnce cr Modi fy_ Permits ,
provides authority to cerainate or
modify permits for cause including, buc not
liolted to, she following:
a. Violation, of any condition of she permit
(including, but; noc limited to, conditions
concerning monitoring, entry, and inspection);
b» Obtaining a pertoic by misrepresentation , or
failure Co disclose fully all relevant facts;
or
e. Change in any condition that requires either
a teaspesary or permanent. seduction or elimi-
nation of the penciled discharge.
(Federal Authority; FWPCA S 402(b) (1) (C) ;
40 CFK, 124.45Cb) *nd 124.72)
State_Scatucorv and Heeulacory Au£hori:v:
1929 PA 245 Sections S, 6(a) and 7(1);
1970 CL 323.5, 323.6(4), 323.7(1) Lacreijle
v ChjgQBgaetie Board, 3S7 Mich 442 (1559).
Remarks o.f ._ the Act or ne y Ce ne r
a, yj^oj.jtcion of Cftrms of penaics.
Any permit issued by ehe Water Kesources Cotwoission
pursuant: to auchoricy given it by 1929 ?A 245 nsy be revoked
if Ehe comaission finds chat the £enns of such pena'it have
been, are being, or rosy be violated. Seccioo 7(1) of 1929 PA
245,
The continued validity of any pennic is conditioned
by low upon the aecoBplishmenc by the pennietg« of such effluent
requirements as che coroinission deems necessary Co prevent
unlawful pollution by such dates as the commission deesns co
-------
be reasonable and necessary. failure to cneet the. require-
ments of any schedule of eeoplianee included as a penalt
condition—either explicitly or by incorporation by reference
Co a promulgated rule-~v;ould render the perrait invalid,
(Section 7(1) of 1929 PA 245).
b . Mi_s_re_c res e neat ion or f_allure to disclose fully
all relevanc facts.
As stated in Latreille v Chiropractic Boerd, 35'
Mich 442, 445 (1959):
"Material fraud in application for
a State license is a proper cause for
revocation or suspension. Andrevs v
Auer, 177 Mich 244; Mower .v._Scate Deaart-
roent of Health, 108 Conn 74 (142 A 473)
appeal dismissed 278 US 570 (49 S Ct 32,
73 L Ed 511). See also In ra Price.
226 App Div 460 (235 HYS 601) In re
T_ __J T T 1 A-- f./,. l.t,\ fl 1 » .'Vr-
affirmec 193 NY 655 (87 Nt. 1121) Anno-
tation 165 ALK 1138. . .."
c, Change _ in condition?,
Should conditions so change that discharges made by
a permittee unaer an in compliance «nn a vti*.^ per^iw .ssuet:
by the conicission viol^ce Che prescription of 6a the Comnis-
sion oay after due notice and an opportunity for hearing
revoke che pertaie.
69
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The cosnission is by statute required co:
". . .(T)ake all appropriate seeps
to prevent any pollution which is deeded
by the commission Co be unreasonable
^nd ag.iinst public interest; in view oi
Che existing conditions in any lake,
river, stream or other waters of the
Scaee,"
(Section 5, water resources ace).
and further,
"(C)ondicion the continued validity
of a permit upon the permittee's accocn-
plishnent of such effluent requirements
5S Che commission deeos reasonable and
necessary co prevent unlawful pollution,
f F
(Section 7(1)}.
Unlawful pollution includes Any discharge of
substances:
"It shall be unlawful for any per-
son directly or indirectly to discharge
into Che voters of the state any sucstance
vhich is or tncy becotce injt-irioujs tp the
public health, safety or welfare; or
which is or may beeone injurious to
ciotneacic, commercial, industrial, agri-
cultural, recreational or other uses
which are being or may be made of such
waters; or wnicn is or easy oecorae
injurious Co the value or utility of
riparian l.tntis; or which is or may be-
come injurious Co livestock, wild
animals, biros, £ish, flquacic life or
plants or the growth or propagation
thereof be prevented or injuriously
flffecced; or whereby the value of fish
and game is or may be destroyed or
impaired."
70
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Should conditions change so as to result in a
degradation of wster quality evidenced by the occurrence of
or of threat of the damages or injuries indicated, the Water
{^sources Commission would be compelled co take whatever
necessary nnd proper administrative neasures the situation
dictates. Such measures would include araendoent of any
promulgated standards applicable co the affected waters and
modification, after notice and an opportunity for having, of
any permit authorizing the discharge of pollutants directly
or indirectly into the affected waters.
71
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11. Authority to Ab_;itu__ Violations Qf_Permics or
Che Fermic j^rocram.
Scats law provides authority Co:
%
a. Abate violations of:
(1) Requirements to obtain permits;
(2) Terms and conditions of issued permits;
f
(3) Lffluent standards and limitations and
water quality standards (including toxic
effluent standards and pre treatment
standards applicable to dischargers into
publicly owned treatment works); and
(4) Mquirenencs for recording, reporting,
Bonicoring, entry, inspection, and
sampling.
b. Apply sanctions to enforce violations described
in paragraph (a) above, including the following
(1) Injuncciv* relief, without the necessity
of a prior revocation of the permit;
(2) Civil penalties;
(3) Crisinal fines for willful and negligent
violations ; ar.fi
(4) Criminal fines against persons who-know-
ingly make any false statement, represen-
tation or certification in any fora notice,
report, or other document required by the
terms or conditions of any perrait or
otnerwise requj,raa ay cne .scarce as part
of 8 recording, reporting, or monitoring
requirement.
Apply maximum civil and criminal penalties
and fines which are comparable to the m&x
amounts recoverable under Section 309 of the
FWPCA or which represent an actual and sub-
stantial economic deterrent to the actions
for which they are assessed or levied, L.ich
day of continuing violation is a separate
offense for -which civil and criminal penalties
and lines nay be obtained.
(Federal Authority; FVPCA §5 4G2(b)(7), 309,
3G6(a)(2)(C) , 402(h), 5G-i; 40 CFR 124.73}
72
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b t a ce Sea t u t_g r v an d iteeu latorv Authoricv
1929 PA 245 Sections 3, 6(c), 10(1) and
10(2); 1970 CL 323,3, 323.6(c), 323.10(1),
323.10(2), Attorney General v Grand
175 Mich 503 ^(1913) , At come v, CeneraT
Peters oil, 381 Mich 445 (1969), :
of the Attorney General
In accordance with Section 10(1) of the water
resources act:
"The (Water Resources Commission)
may request the attorney general to
commence a civil action for appropriate
relief, including a permanent or temporary
Injunction, for ? violation of this act
or rules promulgated hereynder. , ,."
Section 10(2) provides;
"A person who discharges a sub-
stance into trie waters of the state
contrary to the provisions of this act.
or contrary to the provisions of a
permit, order, rule, or stipulation of
the commission. . .is guilty of &
mis demeanor. . .,"
""'
provides that :
"Afcer April 15, 1973, a person
shall not discharge any waste or waste
effluent into the waters of this state
unless he is in possession of a valla
permit therefore from the conn is sior,,
* * * The Commission shall condition
the continued validity sf a permit upon
the permittee's accomplishment of Su;r,
effluent requirements as tne commission
deems necessary to prevent unlawful
pollution by such dates as the cormifsie:
deetns to be reP.Senable and necessary £r.c
to assure compliance with applicable
federal law and regulations. . .."
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Accordingly, injunctlve relief may be obtained in
an action brought: by Che attorney general, at the request
of the Water Resources Cotuaiss ion, to abate violations of
requirements to obtain permits , violations the teros and
conditions of issued permits, or violation of effluent
standards and limitations and water quality standards.
Requirements for recording, reporting, moriitoring,
encry, inspection and sampling as previously discussed are
based upon statutory provisions or upon rules to be adopted
or conditions to be imposed as terras of permits to be issued.
Violations of such requirements likewise are in violation
of the above quoted Section 10(2). Accordingly, such violations
may similarly be abated in an action for equitable relief,
initiated by the attorney general at the request of the
Commiss ion.
It is equally clear from the above quoted portions
of Section 10(1) that equitable relief is available without
a precedent permit revokation.
The water resources ace further provided the avail-
ability of civil and criminal penalties for violations of the
act, permits issued thereunder, rules implementing said act,
and for material fraud or misrepresentation in obtaining a
permit: or submitting reports required by psrsir:, rule or law.
Sections 10(1) and 10(2) water resources act.
-------
A verbatim recitation of these sections establishes
without question or further discussion the equivalence of
such remedies (excluding incarceration as a penal sanction)
LO remedies av?il-=jble under federal law.
•Section 10(1) .
"Tht commission may request the
attorney general to commence a civil
tiction for appropriate relief, including
?. permanent or temporary injunction,
for a violation of this act or rules
promulgated hereunder. An action under
this subsection nay be brought in the
circuit court for the county of Ingham
or for the county in which the defendant
is locaceu, resides, or is doing busi-
ness. The court has jurisdiction to
restrain the violation and to require
compliance. In addition to any other
relief granted under this subsection,
the court m*y impose .•> civil penalty of
not more thin $10,000.00 per day of
v i o i a t i on. "
bection 10(2}.
"A person who discharge? ••* sub-
stance into the Caters of the state
contrary to che provisions of this act,
or contrary to the provisions of a
permit, order, rule, or stipulation of
the commission, or who makes a false
statement, representation, or certifica-
tion in an abdication for. or form
pertaining to a permit, or in a notice
or report required by the terms and
conditions of an issueu permit, or who
renders inaccurate a monitoring device
or record required to be maintained by
the commission, is guilty of a misde-
meanor and shftll be fined not Less than
$2,500.00 nor more than $25,000.00 for
e^ch violation. The court rosy impose
.in additions! fine of not more than
$25,000.00 Tor each day during which
the unlawful ais charge occurred. If
the conviction is for a violation coffl-
mitted after P. first conviction of the
-------
person under this subsection, .the court
may impose a fine of noc more Chan
$50,000.00 per day of violation. The
circuit: coarc for the county in which
the violation occurred has exclusive
jurisdiction. However, the person shall
not be subjecc to che penalties of this
subsection if the discharge of the efflu-
ent is In confomanee with and obedienc
to a rule, order, or permit of the core-
mission. In addition co a fine, che
attorney general may file a suit in a
court of competent jurisdiction LO
recover the full value of che injuries
done to the natural resources of the
State and ehe coses of surveillance and
enforcement by the state resulting from
the violation. In addition to a fine,
the court in its discretion may impose
probation upon a person for a violation
of this act."
It should be noted, however, that the attorney general
»«y commence an action to abate violations of permits, effluent
limitations, standards or any of che provisions of the Water
Resources upon his own volition. In ocher words 2 rec.uesc by
Liie "wauer Resources Commission ib noc a condition preceaer.r
to the initiation of & suit by the attorney general.
As stated in At_to_rney General v pecersor.. 331 Hich
"At common"law acts in violation
of lav? constitute a public nuisance.
Harm to the public Is presumed co flow
frotn the violacion of a valid statute
enacted to preserve public health,
safety, and welfare, The attorney
general, acting on behalf of the people,
is a proper parry co bring an action to
abate a public nuisance or restrain
unlawful acts which conscicuce a public
nuisance. , .."
76
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12. bt-itfc: Board__Membe rship.
No State board or body which has or shares author-
Icy to approve permit applications or portions
thereof, either in the first instance or on appe.il,
includes (or will include, at the time of spprov.il
of the Strte pemit program), .is a member, Any
person who receives, or has during the previous
two years received, a significant portion of his
income directly or indirectly frcsa perrait holders
or applicants for a permit. No State law requires
representation on the State board or body which
has or shares authority to issue permits which
would violate the conflict of interest provision
contained in Section 304(h)(2) of the FVPCA.
(Federal Authority: TOPCA 5 304(h)(2)(D);
40 CFR 124.94)
St.iCe Statutory and Regulatory Authority:
1929 PA 245 Section 1; 1970 CL 323.1.
Kemarks jjf the Attorney Gene_ra_l
The cc-positisr. of the "ichig-r. '.'-icr ;\£.= jwrc..is
Commission is, by Section 1 of the wacer resources act, limited
to seven members consisting of;
. the Director of the Department of Natural
Kesources ;
Di^b1 ; c u° E 1 *" ^ '
c. the Director of the Department of State
Highways;
d. the Director of the Department of Agriculture,
and
e. three citizens of the State appointee by che
Governor, with the advice and consent of the
Senate:
i. one representative of industrial management;
ii. one representative of municipalities; *nd
«
iii. one representative of conservation interests
77
-------
Each of the named stage officers is authorized to
designate & representative from his department to s^rve. in
his stead.
The CoDioission composition dictated by Section 1
of the water resources act does not, In my opinion, require
representation by individuals which would violate Section
304(h)(2) of the 7VPCA.
Guidelines promulgated by che EPA pursuant to Sec-
tion 304(h)(2)(D) implicitly recognise chat neither federal,
state, municipal, corporate, institutional or professional
employment, in themselves constitute a conflict of -interest.
Kule 124.94 (40 CFR Part 1) "would exclude as a commission
member:
"(A)ny person who receives, or has
during the previous two years received,
a significant portion of his incase
directly or indirectly from peroit holders
or applicants for a permit."
Constitutional provisions and case law explanatory
thereof require that che Water tesources Commission and any
other scate regulatory agency be Impartially composed.
In Johnson v Hil_k_Bp_ard. 295 Mich 644, 65? (1940)
che Michigan Supreee Court held Chat the Michigan Milk Marketing
Board, established to fix the wholesale and retail prices of
milk with the Detroit Milk Marketing, was unconstitutionally
composed.
7S
-------
In uhc Johnson case, tiK; bo.ird \;as
follows:
"The board as sec up consists of
t.A. Deain^r, commissioner of agricul-
ture, who is also a producer of milk;
T.H. Lukins, a member of Che Kalam;izoo
Milk Producers Association; Fr*;d W.
Meyer, who is president: of '.he Michigan
Milk Producers association; Ciiarles L.
Wilson, a distributor and a member of
the firrc of Ira V?ilson & Sons bairy
Company, Inc., the third largest distrib-
uting concern in the area; and Mrs, C.L.
Barber, a consumer,"
In striking down the statute the court reasons as
follows:
"No claim is made that any member
of the present board has actiid unfairly
or arbitrarily, but the fict rcriSins tr.^t
the act reonirtJ- the apuointrtmt of a
board, a majority of whose nenbers hevw
s direct pecur.inry interest ir. ,r.c ~zz-~-~
sub^iittyd to then:. bssver.il itaze-s have
providtc for boards of li!;e nsture but
examination of the authorities discloses
that no question has been r^isca as to the
composition of such boards.
"In order that the ad^inis trsti
of the milk industry ssy ba conducted in
a fair and imsartisl "ar.r.ar. ii 1.2 essen-
tial that the board be impartial in its
coonposition. "
Based on affidavits and correspondence solicited
rrom members of the Water Resources Commission and attached
hereto, we find that the following members may have financial
79
-------
ests which are not compatible with requirement:; :O;- :;L.U
board membership promulgates under the FV/PCA:
a. Aivin H. Balden
b, Thomas F. James
Based on affidavits solicited from members of the
Water Resources Commission and attached hereto, we find chat
Che following members do not appear to have financial interests
which are incompatible with the requirements for state board
membership promulgated under the FVPCA:
a, Charles D. Harris
b. John E. Vogt
c, John P. Woodford
d. Stanley ^, Qu
&, John H, Kitchell
Certified on this the /"? clay 01
1973 in the City of Lansing, State of Michiga
igan,"^/
J.
Attorney
State of Mich
-------
"After April 15, 1973, a person shall not
discharge any waste or waste effluent into
the waters cf this state unless he is in
possession of a valid perir.it therefor from
the commission. Compliance with the terms
of an outstanding order cf determination or
final order of determination or stipulation
with the co-mission that is in effect on
April 15, 1973, shall be deemed to meet the
requirements of .this section until the
commission issues its permit. . -. ."
That persons, partnerships, corporations and municipalities
subject to ars existing order or stipulation are required by law tc
apply for permits is clear. Section 8 (b) of the VJater Resources
Act provides in part: , - . .
"A person who is using the waters of the state
for sewage or other waste disposal purposes
. . . shall file with the coirjnission a written
statement setting forth the nature of the
enterprise or development cor. t.prcp late v. ,- ths
amount of water required to be used, its
soui-f-O; fh
-------
promulgated December 22, 1912, pursuant to
Section 304 (h) (2) of the. 1972 Federal Act
Amendments (P.L. 92-500);
(2) Comply with permit terrr,sf conditions, and
requirements specified pursuant to subparts
F, and G of said Guidelines; and
TP
^ /
(3) If they are disposing of pollutants into
wells, apply for and comply with a permit
issued by the state;
apply with equal force to those under existing orders or stipulate
and to those not subject to any such orders or stipulations,
•2. STATS AGENCY AUTHORITY TO IMPLEMENT NPDES:
The provisions of 1929 PA 245, as amended, provide sufficient
authority to the Water.Resources Commission for the promulgatipn
of implementing regulations necessary to comply with requirements
for state certification under NPDES. Sufficient iustification of
the assertion of such authority is set forth in Appendix A of the
State Program Description previously submitted.
Your particular attention is drawn to the Title and
Sections 2(a)(1) and 7(1) of Act 245. These provisions properly
/i
vest broad discretion in the Commission to regulate and restrict
the discharge of substances which are or may become inimical to
the health, safety or welfare of persons within this state's
•jurisdiction; and properly authorize the Commission to regulate
and restrict such discharges in a manner compatible with require-
ments ef the KPDES.
Salowit_2_ v State Board of Registration in ..Medicine, 285 Mi
a
214, 220 (1938) [previously discussed at page 44 of Appendix A],
is stated;
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". . . In exercising supervision over the
health of several millions broad discretionary
powers must be necessarily granted, and it is
only when that discretion is abused that Jhe
courts will interfere."
[See also page 61 of Appendix A, quoting from Ranke v Corporation
& Securi ti es Commi s sion ,". 317 Mich 304, 309 (1947)}.
3, ADM INIS T RAT IVE RU LE S : • .
Rules proposed for formal adoption by the Water Resources
Commission for purposes of•implementing a waste discharge permit
system compatible with requirements of NPDES have been approved by
my office as legal in accordance with Section 45(1) of 1969 PA,306,
as amended (MCLA 24.201 et seq).
On August. ,1 0 . lc>73i the pTeporcf. rr.12:: \:z.z. trc.n^r.^itLfcicI to . •-
That committee may within 2 months indicate its appro\Tal or
disapproval of the rules. Upon approval or expiration of 2 months,
should no action be taken, or upon the expiration of 3 months,
should a resolution be introduced in both houses of the legislature
disapproving the rules arid such resolution not be adopted, the
rules may then be formally adopted by the Water'Resources Commissic:
(Section 45, 1969 PA 306, as amended). The statutory provisions
here relevant are reproduced below:
"Sec, 45, (1) The legislative service bureau
shall promptly approve the rules in a proposed
filing when it deems them proper as to all
matters of form, classification, arrangement"
and numbering. The department cf the attorney
general shall promptly approve the rules when
it deems them to be legal.
" (2) After the legislative service bureau and
attorney general have approved the proposed
-------
copies of the rules bearing certificates of
approval and copies of the .rules without
certificates to the joint corrjnitt.ee on ad-
ministrative rules. After its receipt of
the agency's letter of transmittal^ the
committee"shall have 2 months in which to
consider the rules. This subsection does not
apply to emergency rules.
*(3) If the committee approves the rules with-
in the 2 months, it shall attach a certificate
of its approval to all copies of the rules bear-
ing certificates except 1 and transmit those
copies to the agency.
•"(4) If the committee disapproves the rules
within the 2 months, it shall cause a concurrent
resolution to be introduced in the house of
'representatives or senate, or both, disapproving
* .„.--, and
'representatives or senate, or both, disapprov
the entire set of rules or any specific rule
stating reasons therefor. If the legislature
adopts the resolution, a copy shall be sent to
_ the agency proposing the rules and the agency
"shall not formally adopt the rules nor file them
with the secretary of state except that the
agency may make minor modifications in the rules
^vm> J3 ,»*^+»»t«U»i.i»»wi* i. \« « *«.
-------
least 10 days after expiration of the applicable
period of time prescribed in" subsection (5) of
section 45 when the legislature has not adopted
a concurrent resolution disapproving the rule
during that perio.d. An agency shall transmit a
copy of the rule bearing the required certificates
of approval and adoption to the office of the
governor at least 10 days before it files the-
rule.
" (2) The secretary of state shall indorse the
date and hour of filing of rules on the 3 copies
of the filing bearing the certificates and shall
maintain a file containing 1 copy for public
inspection. .
11 {3} The secretary of state, as often as he
deems it advisable, shall cause to be arranged
and bound in a substantial manner the rules here-
after filed in his office with their attached
certificates and published in a supplement to, the
Michigan administrative code. He shall certify
under his hand and seal of the state on the
frontispiece of each volume that it contains all
of the rules, filed and published for a specified
'period. The rules, when so bound and certified,
shall be kept in the office of the secretary of
state and no further record thereof is required
to be kept. The bound rules are subject to oublic
inspection.
"Sec. 47. (1) Subject to the requirements of
chapter 2 and except in case of a rule processed
under section 48, a rule becomes effective on the
date fixed in the rule, which shall not be earlier
than 15 days after the date of its promulgation,
or if a date is not so fixed then on the date of
its publication in the Michigan administrative
„! =f
-•-*•£•• - = •
coe or a suement
n
(2) Except in case of a rule processed under
section 48, an agency may withdraw a promulgated
rule which has not become effective by"a written
request_stating reasons, (a) to the secretary of
state- on or before the last day for filing rules
for the interim period in which the rules were
first filed, or (b) to the secretary of state and
the legislative service bureau, within a reason-
able time as determined by the bureau, after the
last day for filing and before publication of the
rule in the next supplement to the code. In any
other case an agency may abrogate its rule only by
rescission. when an agency has withdrawn a
promulgated rule, it shall give notice, stating
reasons, to the joint committee on administrative
rules that the rule has been withdrawn."
t -I
-------
\TF IDAV ITS RE: FIKAN CIAL INTERESTS OF COMMI SSI ON MEMS E RS :
are informed'that through inadvertence the'State Water
Resources Commission "failed to include in its original submission
of the State Program Description the originals of affidavits and
correspondence upon which the Attorney General based his opinion
as to the eligibility of Commission members under
Section 304(h)(2) CD} of the Federal Water Pollution Control Act.
These documents will be submitted forthwith by the Commission
staff.
S. INDUSTRIAL USER AKD COST RECOVERY CHARGES:
Jv
Further clarification of this issue will be given in a
subsequent letter. Extensive discussions have taken place
cetwsen tnis clerics iLpd Mr, L/isijlin1^ firsrr, ths Hs^icrj V Cffics.
Prior to t ran smutting tne c-Larii'icatxon requested, we expect, to
be in telephonic communication with your Office.
6. EMERGENCY IMJUNCTIVE RELIEF:
(A) Federal Recuirement:
40 CFR 124.73 (b) provides in relevant part:
"Any State or interstate agency participating
in the NPDES shall have such powers and pro-
cedures and such recourse to . , . civil
injunctive remedies as to insure the following
ways and means are available to protect, main-
tain, and enhance water quality:
* * *
** (b) Procedures which enable the Director 'to
immediately and effectively halt or eliminate
any imminent or substantial encangerments to
health or welfare of persons resulting from
-------
xil i_..U i;iJpiuu.Lj.iJLs; Oi-Ciu^ (J U Ll 1 C "CO
tely restrain any person causing or
contributing to the discharge of pollutants
or to take such other action as may be
necessary, or (2). by a procedure for the
immediate telephonic notice to the Regional
Administrator of any actual or threatened
endangcrrr.ents to the health or welfare of
persons resulting from the discharge of
pollutants;"
(B) Emergency Ir.junctive Relief Available to State
of Kichican:
(i) Introduction;
Any person discharging or contributing to the dis-
charge of pollutants into the waters of this state which
constitutes an imminent or substantial endar.gerrr.ent to
the health or welfare of a person is maintaining a pu£>-
lic nuisance. Such nuisances may be abated in an action
brought by the-Attorney General. Where the threat to
public health or welfare is imminent or substantial, the
Attorney General, acting for and on behalf of the people,
may obtain an ex parte restraining order,restraining
forthwith the commission and maintenance of the nuisance
complained of. :$
(ii) Public Nuisances:
As stated in Attorney C-erieral v Peterson, 381 Mich
445, 465-466 (1969):
"At common law, acts in violation of law con-
stitute a" public nuisance. Ham to the public
is presumed to flow from the violation of a
valid statute enacted to preserve public*
health, safety and welfare. The attorney
general, acting en behalf of the people, is a
proper party'to bring an action to abate a
public nuisance or restrain unlawful acts which
constitute a public nuisance. . . ."
V
-------
The prohibitions of Section 6 (a) of the Water
Resources Act (1529 FA 245, as amended, CL 323.1
.et seq) are, in my opinion, provisions of a valid
statute enacted to preserve public health, safety
and welfare, the violation of which constitutes a
public nuisance, "the commission of which nay
accordingly be abated and restrained, 'To quote frcrr.
Section 6(a) of the Water Resources Act:
"It shall be unlawful for any persons directly
or indirectly to discharge into the waters of
the state any substance which is or may become
inj-urious to the public health, safety or
welfare; or which is or may become .injurious
to domestic, commercial, industrial, agricul-
tural, recreational, or ether uses which are
being 'or- may be made of such waters; or which
is or may become injurious to the value or
utility of riparian lands* or which is or ir.s."
become injurious to livestock, wild animals,
bird?, f i ?h : ?qv»tic:. li^**. r or ^,1 r.r.tr cr the
growth or propagation thereof be prevented or
sctcd; or v.'herebv the
'.'•.IS-V r. _ - sf_i_cU ;
of fish and game is cr may be destroyed o:
.impaired."
(iii) Abatement and Restraint:
In accordance with Michigan General Court Rules
immediate injunctive relief is available to the State
in the form of an ex parte restraining order when it
can be demonstrated that an imminent or substantial
•"threat to the public health, safety or. welfare exists,
To quote froin those rules:
GCR (1963) Rule 782.1
4
"Procedure to Abate Public Nuisance. Actions
to abate public nuisances are governed by the
general rules of procedure and evidence for
non-jury actions, except as provided in the
statutes covering public nuisances, and in
-------
nPreliminary Injunction. If a preliminary
injunction is proved for in the complaint and
it appears by affidavit or otherwise, to the
satisfaction of the court, that the material
allegations therein alleged are true, a*
preliminary injunction shall forthwith issue
restraining the defendant or defendants from
conducting, maintaining or permitting the
continuance cf such nuisance and from removing
or permitting to be removed any of the liquor,
furniture, fixtures, vehicle cr other things
used in the maintenance of such nuisance, until
the final hearing and determination upon the
complaint." .
GCR (19S3) Rule 718.2
"Preliminary Injunctions Granted Without Notice.
" (1) Except as otherwise provided by statute
or these rules, no preliminary injunctions may
be granted until hearing on a motion or order to
show cause .why a preliminary injunction should
not issue. If it clearly appears from specific
facts shown by affidavit or by a verified com-
plaint thar irrjr.eciaze and irreparable injury,
loss cr damage, or physical injury will result
ts "the. ^plici/it. , a. j-sss ui aijilny order may us
issued ex partt pending the hearing on the
n or order to siiow cause.
""(2) The restraining order granted without
notice shall:
n (a) be indorsed with the date and hour
of issuance;
. -v,
••"5
" (b) be filed forthwith in the clerk's
office and entered of reccrd; and
n (c) define the injury and state why it
is irreparable end why the order was
granted without notice.
" (3) Hearings en motions to dissolve pre-
liminary injunctions or restraining orders
which were granted without notice nay be heard
on 24 hours notice or less, upon order of the
court for good cause shov;n, and take precedence
of all matters except older matters of the same
character. The court: may fix the time for the
hearing at the time the preliminary injunction
or restraining crdsr is granted, without wait-
ing for the filing cf a motion to dissolve the
injunction or restraining order."
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Re; Ohio Legal,Authority
Attorney General's Statements
Mr. Valdas Aoamkus July 1, 1981
Acting Regional Administrator
U.S. EPA, Region V
230 S, Dearborn St.
Chicago, IL 6060*4
Dear Mr. Adamkus:
I a ID pleased to forward to you the following two statements from the Attorney
General's.Office about Chic's legal authority regarding water pollution
control as provided in Amended Substitute House Bill 766: •
b» Authority to carry out the Sta^e pre treatment program as required by
Federal rules.
These amendments of ORC 6 r. 1 and 37^5 up-date Ohio's water pollution control
laws to tbe Clean Water Act, provide authority to carry out the pre treatment
prograta, and provide authority to issue perinits to Federal facilities.
Should you have any questions regarding these statemer,: s please contact Mr.
Steven Willey of the Ohio Attorney General's office ar.c Mr. Mark Stanga, Ohio
EPA.Legal Advisor,
Very truly yours,
Wayne S, Nichols
Pir«e tor
WSN/im>.
•037 3H
Glenn Pratt, 5£?, USEPA, Region V w/encl.
Steven Willey, O.A.G. w/enci.
Mark Star.ga, OEPA, Legal w/'encl.
Ernsst Rotering, OW?C w/enol.
Ed Duffield, CWPC w/o end.
State of Ohio Environmental Protection Agency
Box TG49. 3S1 E. Broad St., Columbus, Ohio 43216 • (614; 466-8565
James A. Rhodes, Governor
Wayne S. Nichols, Director
-------
August 17, 1973
Mr. Francis T. Mcyo
Regional Administrator
Region V
Environmental Protection Agency
Chicago, Illinois
Dear Mr. Mayo:"-,_
xn response to your request TOi auuiru clarification
of a certification given by the Attorney General in
accorcanco v.i tr. ~be requirements or the Federal Water
Pollution Control Act, and in particular/ items nur.bered
1 through Ii of a letter £run you i-u r.eiluh ru^Jv/ o<=;yuuy
Director, Environmental Protection Branch, DeDa.rtr.ent of
Natural Resources, dazed the 3rd day of August, 1973, I
have appended an extended discussion of the points raised,
If I may be of further assistance, please feel free
to contact me.
Very truly yours ,
Jerome Kaslowski, In Charge
Assistant Attorney General
Environmental Protection and
Natural Resources Division
The Law Building, Room 630
525 West Ottawa Street
Lansing, Michican 48913
(517) 373-1130*
.JM:REP:rr.tC
Att.
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Under state authority in effect on the 15th day of April, 1973,
no outstanding "state permits" for the discharge of pollutants are
valid for the purposes of the NPDES, and all persons presently in
possession of a valid "state permit" for the discharge of
pollutants are required to:
(1) Comply with the application requirements
' specified in subpart C of 40 CFR 124;
(2) Comply with permit terns, conditions, and
requirements specified pursuant to subparts £,
F, "and G of 4G~CFR 124; and
(3) If they are disposing of pollutants into
wells, apply for and comply with a permit
issued by the state.
• - .Prior to April 15, 1973, this state die not issue "permits"
*" " •&
for the discharge of pollutants into the waters of the state.
Ratheri upon finding that a person, partnership, corporation, or
municipality was aiscnarcing any substance into tine waters of this.
state which was or migr."c becuiim J.HJ uiiuui uu u.ue UUUXAV; ueali.Ii,
safety or welfare, the Water Resources Commission issued a final
order of determination or entered into an agreement incorporating
effluent standards to be met by the discharger with a schedule for
*
accomplishment of actions necessary to comply with such effluent
restrictions.
Compliance with orders issued or agreements entered under the
Commission's previous authority is deemed to meet the requirements
of Section 7(1) of the Water Resources Act (1929 PA 245, as amended,
KCLA 323,1 ct seq) until the Corgis si on issues its permit.
i ' I
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ATTORNEY GENERAL'S STATEMENT
I hereby certify that in my opinion the laws of the State
of Ohio provide adequate authority to carry out those aspects of"
a State pre- treatment program, as required by 40 CFR 403, indicatec
below, I have noted those authorities which are contained in
lawfully enacted or promulgated statutes or regulations in full
force and effect on tne date of this statement. I have also
noted those authorities which the State currently is net. capable
of implementing.
1 . Authority To Apply Categorical Pre treatment Standards For
Industrial Users
State law provides authority to apply -o industrial users
of Publicly Owned Treatment 'works ' p re treatment effluent
standards and limitations - promulgated _nder section 307 (b)
and (c) of the CW? 2S sm^rded incitidir. c orohibiti'-'e dischsrci
standards developed pursuant to 40 CFH 5403.5 (general
pretrea tment regulations) .
'Federal Authori ty C.vA: sections 307, 511 and 4G CFR §§403.5,
403.8, 403.10]
Remarks__of_ the Attorney General:
"Authority does not exist:
There is no deficiency in au-ncrity.
"The following changes need to be rrtade ;
Mor.e ,
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.is cav or
in the City of Columbus, State of Ohio.
Respectfully submitted,
WILLIAM J. 3ROW>;
ATTORNEY GENERAL OF OHIO
BY:
STEVEN J. WILLEY
Assistant Attcrnev General
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"Authority does exist:
-bv Ohio Revised Code Section 6111. C3 ( ?.; (1; , for"
the Director of Environmental Protection to "[a'pclv and
enforce pretreazment standards" in the course of adnnisterinc
the publicly owned treatment works p re treatment proqrarn "in
accordance with the'Federal Water Pollution Control Act.'"
-by Ohio Revised Code Section 6111.03 (R) (3), for
the Director of Environmental Protection to "require compli-
ance by industrial users with pretreatnent standards" in
the course of administering the publicly owned treatment
works 2-retreatjrier,t "rocjrarn "in accordance vith the 'Federal-
Water Pollution Control Act.'"
-by Ohio Revised Code Section 6111.03(0), for the
Director of Environmental Projection "—^ M [i] ssuc mocifv snd
revoke orders requirino any 'industrial user' of any publicly
owned treatment works to comply with pretreatment standards,"
-by Ohio Revised Code Section 6111.C42, for the
Director of Environmental Protection tr "adopt and enforce...
rules setting forth and requiring compliance with national
toxic and pretreatment effluent standards, as necessary in
order to insure compliance with secticr. [] ...307 of the 'Federal
Water Pollution Control Act. '
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-by Chic Revised Code Section 6 111.93(R) (2} , for
the Director of Environmental Protection to oversee and
implement, in whole or in part, local pretreatment programs
upon denial of approval or revocation of such programs,
upon request by a publicly owned treatment works, or in
the absence of implementation of a local pretreatment pro-
grans by a publicly owned treatment works.
-by Ohio Revised Code Section 61.11. 03 (P) , for the
Director of Environmental Protection to exercise "all inci-
dental powers necessary to carry out the purposes of Chapter
6111. of the Revised Code".
-by Ohio Revised Code Section 3745.01(A), for the
Director of Environmental Protection to "take such other
action as may be necessary to comply -.vith the requirements
of federal laws and regulations pertaining to...water pollution
control. "
Comments:
Ohio law provides ample authority to apply to
industrial users of publicly owned treatment works pretreat-
ment effluent standards and limitations promulgated under
section 207 (b) and (c) of the Clean W^-er Act, including the
prohibitive discharge standards developed pursuant to 40
CFR §403.5. Under present Ohio law, the Director of Environ-
mental Protection has creneral authoritv to administer and
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[Federal Authority: CWA sections 402(b)(1)(A), 402{bill);C5 ,
510; 40 CFR §§124.45, 403.8, 403.10]
Remarks of the Attorney General:
^Authority does nojt exist:
There is no deficiency in authority.
"The following changes need to be made:
None.
""Authority does exist:
-by Ohio Revised Code Section 6111.03(J), for the
Director of Environmental Protection to: •
—"condition each permit for a government owned
disposal systerr., or any other publicly owned treatment works'
...upon the existence of a program no ensure compliance with
pretreatment standards by 'industrial users' of the system or
works."
—"set terms and conditions of permits, including
schedules of compliance, where necessary... designed to achieve
and maintain full compliance with the national toxic and pre-
treatment effluent standards set under... [the Federal Water
Pollution Control Act] , and any other rr.andatory requirements
of such act that are imposed by regulation of the administrator
of the United Stares environmental crctection agency."
—"issue, revoke, modify, cr deny permits for
the discharge of sewage, industrial waste, or other wastes
into the waters of the state."
-by Ohio Revised Code Section 6111.03(R) , for the
Director of Environmental Protection to "administer and enforce
the publicly owned treatment works pretreatment program in
accordance with the 'Federal Water Pollution Control Act.1"
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-by Ohio Revised Code Section 6 111.03(R) (3) , for the
Director of Environmental Protection to "require that a public,
owned treatment works pretreatment program be incorporated in
a per™.it issued co a publicly owned treatment works as recruirsd
by the Federal Water Pollution Control Act".
-by Ohio Revised Code Section 6111.03(P), for the
Director of Environmental Protection to exercise "all incidental,
powers necessary to carry out the purposes of Chaoter 6111.
of the Revised Code".
-by Ohio Revised Code Section 3745.01{A), for the
Director of Environmental Protection to "take such other
action as may be necessary to comply with the requirements of
the federal laws and regulations pertaining to air and wat^r
pollution control...."
Comments:
In part 2 of the draft Attorney General's Statement
submitted to U.S.E.P.A. i'n 1978 pursuant to Section 402 of the
Federal Water Pollution Control Act and 40 CFR §403.10(g), the
Attorney General concluded that Ohio law authorized the Director
of Environmental Protection, to the extent consistent with the
Federal Water Pollution Control Act Amendments of 1972, to
include as conditions of Ohio NPDES permits issued to publicly
owned treatment works: (a) compliance schedules for the
development of publicly owned treatment works pretreatment
programs as required by 40 CFR §403.8'd); (b) the elements
of approved POTW treatment works programs as required
by 40 CFB §403.8Ec); (c) modification clauses in accordance
with 40 CFR §403.10(d); (d) prohibitive discharge limi-
tations applicabl * to industrial users as required by
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Control Act and which establishes the r.anner in which the
federal Act is "required to be administered." The provisions
of Section 402 (a) (3) and (b)(l)(A) of the Federal Water Pollu-
tion Control Act require that any NPDES permit program, whether
administered by a federal or stats permit issuing authority,
must be administered in a manner which assures compliance with
oretreatment standards. These statutory requirements are imple-
mented by 40 CFR §403, 3 (c) , which establishes mandatory mechanisms
for incorporating approved publiclv owned pretreatment programs
into N'PDES permits issued to publicly owned treatment works,
and by 40 CFR §403. 8 (c) , which requires use of certain mech^anisrr.s
to incorporate compliance schedules for the development of a
publicly owned treatment works pretrestment program into NPDES
permits of those publicly owned treatrent works lacking approved
pretreatment programs at .the time of ?,r.y permit modification
or reissuance. Although there is no express reference in Ohio
Revised Code Chapter .6,111 to the specific deadlines and other
requirements of 40 CFR §403.8 (d) , Qhic law imposes no restrictions
that would inhibit or preclude the Director of Environmental
Protection from observing the requirements of 40 CFR §403.8 (d)
when issuing NPDES permits to publicly owned treatment works
pursuant to ORC §6111.03 (J) . Thus, Chapter 6111 may, consistent
with Ohio law, be* administered in the same manner in which the
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Federal Water Pollution Control Act is required by 40 CFR *
§403.8(d) to be administered. Finally, since 40 CFH §403.3(d;
is itself an expression of federal law, compliance•with such
regulation cannot be inconsistent with federal law except to
the extent that 40 CFR §403.3 (d) is held to be invalid because
of some conflict with the Constitution, the Federal Water
Pollution Control Act or some other federal statute. Accordingly
it is apparent that the aforerr.entior.ee provisions of ORC §6111.03
authorize compliance with all valid requirements of 40 CFP.
§403.8 (d),
Section 3745.01(A) of the Ohio Revised Code affords an
indeoendent basis of authoritv for the Director of Environmental
r
Protection to apply in terms and conditions of permits issued /
\
to publicly owned treatment works compliance schedules for the
development of publicly owned treatment works pretreatment
programs. In pertinent part, section 3745.01(A) of the Ohio
Revised Code provides that the Director of Environmental Pro-
tection may "[p]rovi3e" such methods of administration..., and
take such other action as may be necessary to comply wi.th the
requirements of the federal laws and regulations pertaining to
air and water pollution control....1* ~-.s noted above, 40 CFR
§403,8(d) uses mandatory language to impose upon permit-issuing
authorities, whether federal or state, duties with respect to
-------
Control Act relate to the Act as amended ir. 1977. Sec
6111.01(L) cf the Ohio Revised Cede provides:
"Federal Water Pollution Control
Act" means the "Federal Water Pollution
Control Act Amendments of!972",86
Stat. 366, 33 U.S.C.A. 1251, as amended
by the "Clean Water Act of 1977", 91
Stat. 1566, 33 U.S.C.A. 1251.
By virtue of the above-quoted definition, references in
Chapter 6111 of the Ohio Revised Code to the Federal Water
Pollution Control Act relate only to language existing
on the effective date cf the 1977 Amendments. Such references
do net embrace and authorize confor~,ity with any post-19 ~7
changes to the Act. 50 C. Jur.2d Statutes §36 (1961).
However, because section 307 of the Clean Water Act has not
been amended since the adoption of 91 Stat. 1566, the afore-
mentioned provisions of Chapter 6111 :: the Ohio Revised
Code fully authorize implementation cf, and conformity with,
oresent federal law.
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Au t ho r i t v t.c Aco 1 v P r ^ ~ r 6 s 4"rr, >s n t R ecfu i
* ~ "" ~ • — .....* ......... ..................... =
Publicly Owned Treatment w
State law provides authority to apply in terns anu condi-
tions of permits issued to Publicly Owned Treatment Works
the applicable requirements of section 402 (b) (8) of the
CWA as amended and 40 CFR part 403 including;
(a) A compliance schedule for the development of a PC TV?
pretreatment program as required by 40 CFR §403. 8 (d);
(b) The elements of an approved POTW pretreatment program
as required by 40 CFPs §4Q3,8(e);
(c) A modification clause requiring that the Publicly
Owned Treatment Works' permit be modified or alterna=
tively revoked and reissued after the effective date
for approval of the State pretre=tment prog r aim to
incorporate into the Publicly Owned Treatment Works'
permit an approved POTW pretreatinent program or a
compliance schedule for developing a POTW pretreatment
program in accordance with the requirements of CFR
§403, 10 (d) ;
(d) Prohibitive discharge limitations applicable to
industrial users as required by 4] CFR §403.5;
and
(e) Demonstrated percentages of removal for those pollu-
tants for which a removal allowance was re cues ted in
accordance with the recuirements of 40 CFR §403.7;
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the incorporation of compliance schedules for the deveIce-
men t of publicly owned treatment works pretreatment programs
in permits issued to publicly owned treatment works. Because
compliance with 40 CFR §403.8 (d) is clearly necessary,
Section 3745.01(A) crovides authority for the Director cf
Environmental Protection to take the actions required by such
federal regulation.
The Director of Environmental Protection has authority
to apply in terms and conditions of permits issued to publicly
owned treatment works the elements of approved publicly owned
treatment works pretreatment programs as required by 40 CFFJ
§403.Bfc). -Section 6111,03(R){3) of the Ohio Revised Code
expressly authorizes the Director of Environmental Protection
to "Jr]equire that a publicly owned treatment works pretreat-
ment proa rain be incorporated in a per™ it issued to a publicly
owned treatment works as required by the 'Federal Water Pollu-
tion Control Act...'.M Although Ohio Revised Code Section
6111.03(R)(3) does not explicitly refer to the specific require-
ments of 40 CFR §403,3{c), Ohio law provides ample authority
for the Director of Environmental Protection to cor.fom to
all requirements cf said federal requl..:tion when implementing
ORC §6111.03(R)(3).
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40 CFR §403.Sic) requires state authorities having bo-h
approved NPOES permit programs and approved oretreatment
programs to reissue or modify NFDES permits of publicly owned
treatment works to incorporate approved publicly owned treat-
ment works pretreatment program conditions as enforceable MPDES
permit conditions,* Said regulation further requires that
states having an approved N'PDES permit croc ram but lacking ar.
approved pretreatment program must incorporate approved publicly owns
treatment works pretreatment programs in the manner required
by 40 CFR §403,10 (d). .The previsions of §6111.03 (J) quoted
above in this Comment clearly establish the authority of the
Director of Environmental Protection to modify NPDES permits or
to revoke such permits and reissue permits with different or
additional terms and conditions. In -his connection, the same
rationales employed in discussing the authority of the Director
of Environmental Protection to implement 40 CFR §403.3(c)
establish the Director's authority to implement 40 CFR §403,8 (c) ,
Thus, terms and conditions of the sort required by 40 CFR §403.8
(c) are "designed to achieve and maintain full compliance with
the . . , national toxic and p re treatment: standards. . . , and
*An identical requirement applies to USEPA in the absence
of an approved state NPDES permit program.
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. . . other reauiremer.ts of , . . [the Federal Water Pollution
Control Act] that are imposed by regulation of. the adrr.inistratcr
of the United Stages e nviror.mer. tal protection ager.cv. . . " ar.d
are therefore authorized by ORC §6111.03(J) . Furthermore,
since -he provisions of 40 CFR §403.8 (c) are not inconsistent
with Chic lav/, the Director's duty to administer Chaster 6111
of the Revised Code "in the sane manner that the 'Federal Water
Pollution Control Act* is required to be administered...", ORC
§6111.C3, authorizes the Director of Environmental Protection
to observe all requirements of 40 CFR §403.8!.c) that are not
invalid through conflict with the federal Constitution, the
Federal Water Pollution Control Act or other federal statutfe.
Finally, since 40 CFR §403. 3[c), like 40 CFR §403.8{d) is a
mandatory regulation imposing requirements on all states with
approved KPDES perrr.it programs, ORC 5: "45.01 (A) authorizes the
Director of Environmental Protection to take ar.v action recuired
this paragraph, it is apparent that the Director of Environmental
Protection has all the authority which 40 CFR §403.3 (c) requires
of states with approved state pretreatrent programs. The
authoritv of the Director to conform t: the requirements of
•10 CFR §4Q3.lO(d) when acting pursuant to 40 CFR §403.8(c) or
(d) prior to approval of Ohio's pretre?.tmer.t program is estab-
lished below in the discussion of the Director's authority to
ccmp1y with 40 CFR § 4 0 3.10 (d) .
The Director of Environmental Protection has all the
authority required by 40 CFR §403.10(d: i3). The general authority
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of the Director to incorporate in a permit for a publicly owne<
treatment works conditions of an approved publicly owned treat-
ment works pretreatment program or a compliance schedule for
developing such a program in accordance with 40 CFH §403.8(c)
or (d) is established in the preceding portions of this Comment.
40 CFR §403.10(d)(3} further requires that any compliance
schedule for the development of a publicly owned treatment
works pratreatment program meet the conditions and reporting
requirements of 40 CFR §403,12 (h). Under 40 CFR §403,12(h}{11
and (2), compliance schedules must include dates for the
commencement and completion of major events leading to the
development and implementation of publicly owned treatment
works pretreatment programs, with no more than nine months*
elapsing between the commencement and completion of any major
event or increment of progress. The provisions of 40 CFR
§403.12(h)11) and (2) are fully consistent with ORC §6111.03(J)
and ORC 6111,01(K). Although Chapter 6111 of the Ohio Revised
Code does not in terms, require the Director of Environmental Pro-
tection to place a nine-month limitation on the period allowed
for achievement of all milestones in compliance schedules incor-
porated in Ohio NPDES permits issued to publicly owned treatment
works, no provisions of Ohio law restrict the Director'a authority
to impose such a limitation where schedules of compliance for the
development of publicly owned treatment works pretreatment
programs are concerned. Under 40 CFR §4G3.12(h)(3), a publicly-
owned treatment works must "submit progress reports to the
Approval Authority within 14 days of each date in the compliar
schedule and within r.ine months of any preceding progress report.
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Although nothing in Chapter 6111 of the Ohio Revised Cede
expressly requires the filing of reports at the times,or havino
the contents, contemplated by 40 CFR §403 .12(h) (3) / ORC §6111.03
(J), as noted above, does authorize the Director of Environ-
mental Protection to include ir. terms of "PDES permits conditions
designed to achieve or maintain compliance with pretreatmeni
standards and other mandatory requirements of the Federal Water
Pollution Control Act: imposed by regulations of the federal
Administrator. Pursuant to such authority the Director of
Environmental Protection may condition permits for publicly
owned treatment works lacking approved publicly owned treatment
works pretreatment programs on the filing of reports confcJming
to the requirements of 40 CFR §403.12 (h){3}. Such reporting
requirements may facilitate achievement of national pretreatment
effluent standards; in any case, inclusion of such a reporting
requirement in MPDES permits for publicly owned treatment works
certainly would be designed to achieve compliance with the
mandatory requirement established by 4} CFR §403.8 (b) that a
publicly owned treatment works must obtain approval of a
publicly owned treatment works pretrea rmer.t program within
three years of any modification or rei.~suar.ee of its permit
and prior to July 1, 1983 in all events. Moreover, since 40 CF-
-------
§403. 12 (h) itself establishes mandatory requirements o:
Federal Water Pollution Control Act imposed by regulation of
the administrator of. the United States Environmental ?:
Agency, ORC §6111.33 (J) authorises the Director of Environmental
Protection to set permit terms and conditions designed to achieve
compliance with the reporting requirements of 40 CFR §4C3.12(h;
(3) . Finally, in view of the mandatory nature of 40 CFR §403.12
(h), it is apparent that state permit-issuing authorities
must comply with such regulation when issuing or modifying
permits to publicly owned treatment works lacking approved
publicly owned treatment works pretreatment programs, and
accordingly the passage of ORC §3745.01(A) referred to abovfe
in this comment authorizes the Director of Environmental Pro-
tection to take such action as may be necessary to comply with
such regulation.
Should any occasions remain in which 40 CFR §403.10 (d) {3)
does not foreclose use of the modification clause device cf
40 CFR §403.10 (d) (1}, Ohio law would authorize the Director of
Environmental Protection on such occasions to comply with 40
CFR §403.10 (d) (1) . In pertinent part, 40 CFR §403.1Q(d)M)
provides:
Before the effective date for State
PretreatJtient Program approval, any Permit
issued to a ?OTW which meets the require-
ments of' §4 03. 8 (a) by an HPD^S State without
an aocroved State oretreatment Droaram shall
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include a modification clause. Such
rr.odification clause will require that
such Permits be promptly modified or,
alternatively, revoked and reissued after
the effective date for State Pretreatment
Program approval to incorporate into the
PO.TW's Permit an approved POTW Pre treat-
ment Program or a compliance schedule
for the development of a POTW Pretreatment
Program according to the requirements of
§403.3{b) and (d) and §403.12(h) . . . .
As previously indicated, the Director of Environmental Protection
has general authority under ORC §6111.03 (J) to issue and modify
permits and to set terms and conditions of permits designed to achieve
and maintain full compliance with any mandatory requirements of the
Federal Water Pollution Control Act imposed by regulations cf the
federal Administrator, 40 CFH §403.10 (d) (1) imposes on every N^OES
state without an approved pretreatment program the mandatory duty
to include, in any perrr.it issued to any publicly owned treatment
works required to develop a pretrea-menn cr~gram, a modification
clause providing for subsequent incorporati zr. into such permits of
either an approved publicly owned treatment works pretreatment pro-
gram or a compliance schedule for the develcpment of such a program,
Since Ohio is presently an NPDES state without an approved pretreat-
ment program, the mandatory modification clause requirements of
40 CFR §403.10 (d) (1) apply to Ohio. It follows -hat modification
clauses conforming to 40 CFR §4C3,10!d) (1; =re among the terms and
conditions which the Director of Environmental Protection may estab-
*
iish oursuant to Section 6111.03(J),
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Other orovisions of the Ohio Revised Code also
authorize compliance with the modification clause require-
ments sf 40 CFPs §403. 1C (d) (i) . Section 3745.01 (A) confers
upon the Director of Environmental Protection general authority
to take such action as is necessary to comply with federal laws
and regulations pertaining to water pollution control*. Because
the requirements of 40 CFR §403.10(d) (1) are mandatory and
applicable to Ohio, the ability to include in NPDES permits
issued to certain publicly owned treatment works modification
clauses conforming to 40 CFH §403.10(d) (1) is clearly "necessary
and within the scope of CRC 3745.01(A). Similarly, since pro-
visions of section 402(a)(3) and (b)(1)(A) of the Federal Water
Pollution Control Act clearly contemplate that the NPDES pemu ^
program will play an essential role in administering the federal
pretreatment requirements, and since 40 CFR §403.10(b)(1) estab-
lishes a mandatory mechanism for the incorporation of publicly
owned treatment works pretreatment program requirements into
NPDES permits for publicly owned treatment works required to
develop pretreatment programs, the duty of the Director of
Environmental Protection under Section 6111.03(00 and 6111. 03 (R)
to administer the publicly owned treatment works pretreatment
program and the other provisions of Chapter 6111 in accordance
with the Federal Water Pollution Control Act compels compliance
with 40 CFR §403.10 (d} (1) .
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The Direct cr of environmental Protection has author if/ to
apply in terms and conditions of permits issued to cubliclv owned
treatment works prohibitive discharge limitations applicable to
industrial users as required by 40 CFR §403.5. The onlv express
requirement for incorporating prohibitive discharge limitations
in NPDES permits issued to publicly owned treatment works is
found in 40 CFR §403.5(d) which provides:
Where specific prohibitions or limitations
on the pollutants or pollutant parameters
listed in 40 CFR §403~. 5 (b) {1) -"(5) are
developed by a POTW, either as a require-
ment of an Aucroved ?CTW Pretreatment Pro-
gram pursuant to §403.8 or an NPDES Permit,
such limits shall be incorporated in the
NPDES Permit issued to the POTW and shall j
replace and be enforceable in lieu of the
general prohibitions set forth in this
section .
bince the prohibitive discharge limitations set forth in
40 CFR §403.5(bO(l) - (51 are pretrea t.-.ent standards applicable
to all industrial users of publicly owned treatment works, any
term or condition of an Ohio NPDES permit designed to achieve
or maintain compliance with such prohibitive discharge limits
is necessarily designed to achieve and maintain compliance with
pretreatment standards and is thus authorized by ORC §6111.03(J!
Under 40 CFR §403.5(d), any specific prohibitions or limits on
the pollutants or parameters listed in 40 CFR §403.5(b) (1) -
(5) developed by a publicly owned treatment wcrks as a require-
ment of an aDCroved oubliclv owned treatment works ore treatment
program, pursuant to 40 CFR §4C3.S cr an XPDES permit replace anc
become er 4t~r^eac 1~ ~ ^ 1' ^u of tne cene 'ja 1 c ^oU|io111cns or 40
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CTR §403. 5 (b) ; 1) - (5). In effect:,
become pretreatirsent standards; in any case, such specific
orehi bitions clearly implement and assure compliance wit" the
limitations set forth in 40 CFR §403 . 5 To) (1) - (5). Accordingly,
the Director of Environmental Protection under OAC §6111.03iJ)
may incorporate such prohibitions into Ohio NPDES permits.
Section 3745,01 (A) of the Ohio Revised Code also affords
authority to the Director of Environmental Protection to incor-
porate in Ohio NPDES permits specific prohibitions or limits
developed by publicly owned treatment works for the pollutants
or parameters listed in' 40 CFR §403. 5 (b) (1) - (5). The pro-
visions of 40 CFR §40 3.0 5 Cd) are mandatory; in order for tire
Director of Environmental Protection to comply with such regu- A
lation, the Director must incorporate into Ohio NPDES permits :
any prohibitive discharge limits developed by publicly owned
treatment works for the pollutants or parameters listed in
40 CFR §403. 5 (b}(l) - (5). under OAC 53745.OKA}, the Direc-
tor of Environmental Protection is granted authority to take
such other action as may be necessary to comply with the
requirements of federal laws and regulations relating to
water pollution control.
As indicated below in connection vith Authority 4, Ohio
law authorizes the Director of Environmental Protection to
approve and deny requests for authority to revise pretreatment
discharge limitations to reflect, consistent removal of specified
-------
pollutants by a publicly owned treatment works. By virtue
of 40 CFR §403.7{e) (2), whenever approval so to revise pre-
treatment discharge limitations is granted, both the revised
discharge limits and the demonstrated percentages of consis-
tent removal must be included in the publicly owned treatment
work's NPDES permit as enforceable perr.it requirements. In
conformity with the requirements cf 40 CFR §403.7, Ohio law
authorizes the Director of Environmental Protection to apply
in terms and conditions cf permits issued to publicly owned
treatment works requirements to attain and maintain any demon-
strated percentages of consistent removal of pollutants for
which pretreatment discharge limitations have been revised.
Pursuant to Ohio Revised Code Serticn 6111.C3(J), the
Director of Environmental Protection ~ay issue to publicly
owned treatment works permits for the discharge of sewage,
industrial wastes or other wastes into the waters of the state,
and the Director may establish permit terms and conditions
designed to achieve compliance with ar.y mandatory requirements
imposed by Administrator of the United States Environmental Pro-
tection Agency. 40 CFR §403.7 (e) (2) 1= clearly a mandatory pro-
vision imposed by the federal Administrator on Approval Authorities,
whether state or federal, in order to assure that the consistent
removal allowance procedure is not used to circumvent mandatory
substantive ore treatment reauirernents , Accordinclv, the oermit
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conditioning authority granted to -he Director c:: Er.vircn-
mental Protection extends to the matters set forth in 40 CFR
§403. 7 (e) {2).* Furthermore, sines all Approval Authorities,
whether state or federal, are required to observe the permit:
condition requirements of 40 CFR §403.7 (e) {2) , said federal
regulation clearly establishes the manner in which the Federal
Water Pollution Control Act is required to be administered.
The Director of Environmental Protection is commanded to admini-
ster Chapter 6111 of the Ohio Revised Code, "consistent with
the laws of this state and federal law, in the same manner that
the Federal Water Pollution Control Act is required to be
administered." ORC §6111.03, Since no provision of Ohio Jaw
precludes the Director of Environmental Protection from exer- 4
cising his authority under ORC §6111.C3 (J) to include permit
conditions conforming to the requirements of 40 CFR §403.7 (e) (2 / ,
the above-quoted passage of ORC §6111.33 independently confers
authority on the Director to comply with 40 CFR §403.7 (e) (2}
unless said federal regulation is inconsistent with federal
law. Thus, Ohio Revised Code Section -Sill. 03 provides authority
to comply with all valid requirements of 40 CFR §403.7 (e) (2).
* Because 40 CFR §403.7 (e) (2) is mandatory in nature,
Section 3745.01 (A) also provides authority for the Director
of Environmental Protection to take such action as is necessary
to ccrrrolv with said federal regulation.
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3. Authoritv TO Hecuire Infcrir.atior, Heaardir.c 7he Introduction
i — -^ — .,„•;miiiiii ——. ,1,.,—,.,-. - — -^ i — i iiiiiii i in in
Of_ Po 11 a cants Ir.cc Publicly Owned Treatment Works
Stare law provides authority to require in permits 'issued
to publicly owned treatment works conditions requiring the
permittee to:
a. Give notice to the State permitting agency of new
introductions into such works of pollutants from
any source which would be a new source as defined
in section 306 of the CWA if such source were dis-
charging pollutants -directly to State waters;
b. Give the Stare notice of new introductions of
pollutants into such works from a source which |
would be a point source subject to section 301 if
it were discharging such pollutants directly to
State waters;
c. Give the State notice of a substantial chance in
volume or character of pollutants being introduced
into such works by a source introducing pollutants
into such works at the time of issuance of the
permit; and
d. Identify in terns of character an : volume of pollutants
anv significant source ir.trocucir.~ pollutants subject
to pretreatment standards under section 307(b) of the
*
CWA as amended.
[Federal A u t he r it v: CK A sections 402 (b^3; and 40 CFR §§124,45 (d
403.8, 403.10]
-------
Re ma r k s of the At tor n e y G e r. era! :
"Authority does ng_t exist:
There is no deficiency in authority.
°The following changes need to be made:
None,
°Authority does exist:
-by Ohio Revised Code Section 6111.03 (J), for the
Director of Environmental Protection to "condition each
permit for a government-owned disposal system, or any ocher
publicly owned 'treatment works'":
— "upon the reporting of new introductions of
*
industrial waste or other wastes and substantial changes inf
the volume and character thereof being introduced into such
systems or works from 'industrial users'. . . as necessary to
comply with section 402(b)(8)" of the Federal Water Pollution
Control Act, and
--"upon the identification of the character
and volume of pollutants subject to pretreatment standards
beina introduced into such system or works."
lent:
The Director of Environmental Protection is required
by ORC §6111.03(J) to "condition each permit for a government
owned disposal system, or any other publicly owned 'treatment:
works' . . .upon the reporting of new introductions of
industrial waste or other wastes and substantial changes in
volume or character thereof bei.ic introduced into such svstem
-------
or works from 'industrial users', . ., as necessary to complv
with section 402 (b) C8) of [the Federal Water Pollution Control
Act]. ..." By virtue of the above-quoted passage of ORC
§6111.03 (J), the Director of Environmental Protection has
authority to comply with section 402(b}(8)(A) of the Federal
Water Pollution Control Act, which requires that any approvable
state NPDES permit program must provide authority to include
in any permit for a discharge from a publicly owned treatment
works conditions to require adequate notice to the permitting
agency of "new introductions into such works of pollutants from
any source which would be a new source as defined in section
306 if such source were discharging pollutants. ..."
Similarly, the above-quoted passage of ORC §6111. 03 (J) authorize'
the Director of Environmental Protection to observe the
requirement in section 40? lbJ (8) (3) of the Federal Water
Pollution Control Act that an approvable state NPDES permit
program must include authority to condition permits for publicly
owned treatment works upon the provisicn of adequate notice
to the permitting agency of "new introductions of pollutants
into such works from a source which would be subject to
section 301 if it were discharging said pollutants. ..."
Finally, the above-quoted portion of ORC §6111.03(J) also
mandates that ar.y *0hio NPDES permit issued to a publicly
owned treatment works must contain conditions to assure
adeauate notice to the nerT.it tine aqencv of "a substantial
-------
change in volume or character of pollutants being intro- ';
duced into such works by a source introducing pollutants
into such works at the time of the issuance of the"permit. . ,",
in conformity with the provisions of section 402 (b) (8) (C)
of the Federal Water Pollution Control Act,
Ohio law also provides authority for the Director
of Environmental Protection to include in permits for publicly
owned treatment works conditions requiring the permittee no
identify in terms of character and volume of pollutants any
significant source introducing pollutants subject to pretreat-
ment standards under section 307 (b) of the Federal Water Pollu-
tion Control Act. Section 6111.03(J) of the Ohio Revised fcode
requires the Director of Environmental Protection to "condition,
each permit for a government-owned disposal system, or any
other publicly owned 'treatment works. . .upon the identification
of the character and volume of pollutants subject to pretreatmen-L
standards being introduced into such system or works. ..."
Pursuant to the passage quoted immediately above, the Director
of Environmental Protection may condition permits for publicly
owned treatment works on source-specific identification of
the character and volume of discharges into such works of
pollutants subject to pretreatment standardises required
by section 402(b)(8) of the Federal Water Pollution Control
*
Act. Even though ORC §6111.03 (J) does not in terms require
-------
source-specific identifications of the character and volume
of discharges into publicly owned treatment works of
subject to pretreatment standards, such source-specific
identifications are compatible with both the language and
purposes of the last-quoted passage of ORC §6111.03 (J) .
Moreover, the General Assembly has indicated that "Chapter
6111. of the Revised Code authorizes the state. . . to
administer and enforce the publicly owned treatment works
pretreatment program. , .in accordance with the Federal
Water Pollution Control Act", and the General Assembly has
directed that "Chapter 6111. of the Revised Code shall be
administered, consistent with the laws of this state and
federal law, in the sane manner that the Federal Water
Pollution Control Act is required to re administered."
ORC §6111.03. Under Sections 402{a)t;. and 402(b){8) of the
Federal Water Pollution Control Act, it is clear that permit
issuing authorities must include in pemits issued to publicly
owned treatment works conditions requiring source-specific
identifications of the character and volume of discharges into
such works of pollutants subject to pr-2treatment standards.
Such federal requirements are net inconsistent with ORC
§6111.03 (J) or any other provision of Chio law. Since
section 402 (b) (8)*cf the Federal Water Pollution Control
Act is an expression of federal law, administration of Ohio's
KPDES permit program in accordance with the requirements of
-------
said statutes cannot be inconsistent with federal law
except to the extent that §402 (b) (3) of the Federal Water
Pollution Control Act is determined to be invalid through
conflict with the Constitution, some other portion of the
Federal Water Pollution Control Act, or other federal
statute. Therefore, it is evident that Section 6111.03(J)
of the Ohio Revised Code authorizes the Director of Environ-
mental Protection to conform with all valid requirements
of section 402Cb)(8) of the Federal Water Pollution Control
Act.
-------
Authority To Make Determinations On Requests For F r e t r e a true n t
Program Approval And Removal Allowances
Stare law provides authority to approve and deny:
a. Requests for POTW pretreatenant program approval in
accordance with the requirements of 40 CFR §§403.8(f)
and 403.11; and
b. Requests for authority to reflect removals achieved
by the Publicly Owned Treatment Works ir. accordance
with the requirements of 40 CFR §§403.7, 403.10(f)(l)
and 403.11.
[Federal Authgrity: C WA sections 307 (b), 402(b)(,S) and L
40 CFR §§403.7, 403.8, 403.10, 403.11]
Re_jTia_rks_of the Attorney General:
3Authority does nor exist:
There is no deficiency in authority.
°The following changes need to be made:
None .
"Authority does exist:
-by Ohio Revised Code Secticr. 6111.0 3 (R) (2) , for
the Director of Environmental Protect!:n to "approve and
deny requests for approval of publicly owned treatment works
ore treatment programs" in the course c: the Director's
administration of a POTW pretreatment program "in accordance
with the 'Federal water Pollution Control Act.'"
-------
-by Ohio Revised Code Section 6111. 03 LR) (41, for
the Director of Environmental Protection to "approve and
deny requests for authority to modify categorical pretrea tinent
standards to reflect removal of pollutants achieved by
publicly owned treatment works" in the course of the Director's
administration of a POTW pretreatment program "in accordance
with the'Federal Water Pollution Control Act.1"
-by Ohio Revised Code Section 6111.03, "to administer
and enforce the publicly owned treatment works pretreatsnent
program. , .in accordance with the 'Federal Water Pollution
Control Act. '"
-by Ohio Revised Code Section 3745.01, for the *
Director to "take such other action as may be necessary to
comply with the requirements of federal laws and regulations
pertaining to air and water pollution control. ..."
"Comments:
Ohio law provides authority to approve and deny
requests for publicly owned treatment works pretreatment
program approval in accordance with the requirements of
40 CFS §5403.8 If) and 403.11 and authority to approve and
deny requests to reflect removals achieved by publicly owned
treatment works in accordance with the requirements of 40
CFR §§403.10(f) CD.and 403.11, Section 6111,03(R) (2) ORC
expressly provides general authority tc "[ajpprove and
deny requests for approval of publicly owned treatment works
pretreatment programs, ..." Section 6111.03(R) 14} ORC
-------
expressly provides general authority to "[ajpprove and
deny requests for authority co modify categorical pretreatrnent
standards to reflect removal of pollutants achieved by
publicly owned treatment works. ..." Neither of the
above-quoted Ohio provisions expressly establishes any
criteria or procedures governing the exercise of the general
authority provided therein, and neither the above-quoted
Ohio provisions nor any other Ohio statutes or regulations
expressly refer to, or incorporate, the requirements of 40
CFR §§403.8 (f), 403.10U} CD or 403.11, Further, the general
procedural requirements set forth in QRC Chapters 3745 and
119 do not in terms authorize all of the specific procedures
required by 40 CFR §403,11. The balance of this Comment is
devoted to discussing the authority and duty of the Director
of Environmental Protection to observe the requirements of
40 CFR §§403.3(f), 403.10(f)U) and 403.11 when acting pursuant
to ORC §6111.03 (R) (2) and (4).
The Director of Environmental Protection has ample
authority pursuant to ORC §3745.01 (A) to act in accordance
with 40 CFR §403.8 (f) when approving or denying requests fcr
publicly owned treatment works pretrea ~:~ent program approval.
Section 3745.01iA) of the Ohio Revised Code authorizes the
Director of Environmental Protection tc ""p]rovide such
methods of administration. . .and take such other action as
may be necessary to comply with the requirements of federal
laws and regulations oertaining to, . .water pollution
control. ..." Usinc rr.andatorv laneua^e, 40 CFR §403. 8 Cf)
-------
requires the inclusion in ail publicly owned treatment: works
pretreatment programs of an extensive list of powers,
mechanises for achieving specified objectives, and fundine
and personnel capabilities. 40 CFP. §403. 11 (a) and (c) implicitl..
preclude approval by any Approval Authority, whether federal
or state, of any publicly owned treatment works pretreatment
program lacking any of the elements set forth in 40 CFR §403.3 (f .
Accordingly, only by scrutinizing requests for approval of
publicly owned treatment works pretreatment programs for
conformity with 40 CFR §403.8 (f) and by denying approval of
programs which fail co conform to the requirements of said
regulation can the Director o£ Environmental Protection exercise
his authority under ORC §6111.03(R)(2) in a manner which comp1-"
with federal regulations pertaining to water pollution control.
Because the aforementioned federal regulations establish
requirements which are binding upon the Director of Environ-
mental Protection, authority to act in accordance with such
regulations is clearly within the scope of powers granted by
ORC §3745. 01 (A) -
The authority and duty of the Director of Environ-
mental Protection to apply the criteria of 40 CFR §403.8 (f)
when evaluating requests pursuant to GRC §6111.03 (Rl (.2) is also
established by that portion of ORC §6111.03 which provides
that "Chapter 6111. of the Revised Code shall be administered,
consistent with the laws of this state and federal law, in
-------
the same manner that the 'Federal Water Pollution Control
Act1 is required to be administered," As suggested above LTI
this Comment, 40 CFR §403. 8 (a) and (c) establishes trie manner
in which the Federal Water Pollution Control Act is required
to be administered insofar as said regulation requires
Approval Authorities, whether federal or state, to deny
publicly owned treatment works pretreatment program approval
requests which do not conform to 40 CFR §403.S(f). Because
Ohio law is silent as to the criteria to be considered by
the Director of Environmental Protection in exercising authority
pursuant to ORC §6111, 03 CR) (.2), it would not be inconsistent
with Ohio law for the Director of Environmental Protection to
evaluate requests for approval of publicly owned treatment
works pretreatment programs on the basis of conformity to
40 CFR §403.8 (f) as required by 40 CF?. §4 03. 11 (a J and (cj.
Finally, since 40 CFR §§403.8(f) and 403.11(a) and (c) are
expressions of federal law, observance of the requirements
of said regulations cannot be inconsistent with federal law
except to the extent that said regulations are determined to
be unconstitutional, inconsistent with the Federal Water
Pollution Control Act itself or inconsistent with some other
federal statute. It is therefore apparent that ORC §6111.03
authorizes and requires the Director cf Environmental Pro-
tection to observe all valid mandatory requirements cf
4C CFS §§403.Sif) and 403.11(cj.
-------
The Director of Environmental Protection has
ample authority to comply with all provisions of 40 CFR
§403,11 when approving or denying requests for approval of
publicly owned treatment works pre treatment programs pursuant
to ORC §6111. 03 (P.) (2) or when approving or denying requests
to modify categorical pretreatment standards to reflect removal
of pollutants achieved by publicly owned treatment works pursuan:
to ORC §6111. 03'.R) (41 . 40 CFR §403.11 establishes one set of
procedures to govern approval or denial of both publicly
owned treatment works pretreatment programs and revision of
categorical pretreatment standards to reflect removals achieved
by publicly owned treatment works. As the opening passage
t
of 40 CFR §403,11 makes clear, the procedures set forth in
subdivisions (a) through Cgl of said regulation are mandatory.
Hence, observance of such procedures is necessary to comply
with federal regulations pertaining to water pollution control,
and accordingly, ORC -§'3745.01 CA) confers authority upon the
Director of Environmental Protection to conform to the
procedures of 40 CFR §403.11 when acting pursuant to 6111.03CSK;
or (4).
In conformity with the requirements of 40 CFR
§403.10 If.) (1) (vii) , Ohio law provides authority for the
«
Director of Environmental Protection to employ the criteria
and procedures of 40 CFR §§403.7, 403,3 and 403.11 when
-------
approving and denying requests for authority to .T.odifv
categorical pretreatment standards to reflect removal of
pollutants achieved by publicly owned treatment works.
Section 3745.01 [A} of the Ohio Revised Code authorizes the
Director of Environmental Protection to " [p] re-vide such
methods of administration, . .and take such other action as
may be necessary to curr.ply with the requirements of federal
laws and regulations pertaining to ... water pollution. . ,
Since 40 CFR §§403.", 403.9, and 403.11 establish mandatory
criteria and procedures for any revision of categorical
pretreatrnent standards to reflect removal of pollutants
achieved by publicly owned treatment works, as indicated *
below, it is clearly necessary for the Director of Environ-
mental Protection to comply with such federal regulations in
any exercise of authority pursuant to ZRC §6111.03(RJ (4),
Hence,authority so to comply is conferred by ORC §3745.01 (A).
By virtue of 40 CFR §403,7 (b) (11, there can be no
revision of categorical pretreatrnent standards to reflect
removal of pollutants achie\red by publicly owned treatment
works except as authorised by the Regie :-.al Administrator or
the Director of a state agency with an approved NPDES permit
program in accordance with the procedures and requirements on
4C CFR §§403.9 and 403,11. Further, by virtue of 40 CFR
§403.11 (a) and (c) , the approval or denial of such requests
to modify categorical pretreatrnent standards must be based
upon an evaluation of such reauests for compliance with 40
-------
CFR §4G3.7(b) arc Cc),s whether the Approval Authority xs a
Regional Administrator, a "Director" as defined in 40 CFR
§403,03(e)f or a director of a water pollution control agency
of a state without an approved pretreatment program Cpursuar.t
to 40 CFR S403.9U)). 40 CFR §403, 7tb) provides general
authority for publicly owned treatment works to revise discharge
limits for pollutants covered by categorical pretreatment
standards applicable to users discharging into such works;
subparagraphs .CD through (.4) of 40 CFR §403. 7 Cb) establish
certain preconditions of any such revision. Pursuant to 40
CFR §403.7(c)(I) through (7}, -all applications for authority
to revise discharge limits in categorical pretreatment standards
to reflect removal of pollutants achieved by publicly owned
treatment works must be supported by specified data, including
influent arid effluent operational data obtained in accordance
with specified sampling and analysis techniques, proposed
revised discharge limits calculated in accordance with a
formula set forth in the regulation, analysis and sampling
of sludge in accordance with specified techniques and methods,
a description of sludge use or disposal methods, accompanied by
*Because under 40 CFR §403.7 [bl 12! an approved publicly
treatment works pretreatment program is a precondition of
any revision of categorical pretreatment standards to reflect
removal of pollutants achieved by a publicly owned treatment
works, and because 40 CFR §403.1 (c} encourages inclusion of
applications for authority so to revise pretreaonent standards
with the submissions required for requests for approval of
publicly owned treatment works pretreatment programs, it is
recognized that combined requests will also be scrutinized for
conformity with 40 CFR §403,8(f}. Since the Director's author-
to undertake such scrutiny has already been established.above i^
this Comment, the remaining discussionso.il be confined to a
consideration of those requirements which relate distinctly to
revision of categorical pretreatment standards to reflect remova.'
of pollutants achieved by publicly owned treatment works.
-------
a certification that such methods ccreply and will continue
to comply with applicable federal and state laws, and other
data. In addition, certain applications ro revise categcricai
discharge lirr.i tations to reflect removal of pollutants
achieved by publicly owned treatment works must include a
demonstration that such a revision will not oreclude use bv
the publicly owned treatment works of innovative or alternative
technology, as provided in 40 CFR §403.7id)C2). Each of the
aforementioned provisions cf 40 CFR §403.7 establishes a mandatory
component cf an approvable request to modify categorical
pretreaoner.t standards to reflect removal cf pollutants achieved
by publicly owned treatment works. By virtue of the pro-
visions cf 40 CFR §403.9ic) and id] and 403.11, the public
notice and review requirements of 40 C~R §403.11 are contingent
upon the receipt of a categorical pretreatment standard
modification requests which includes all information required
by 40 CFP. §403. 7 {b} and tc); upon receipt of categorical pre-
treatment standard modification requests which do not include
all necessary information, Approval Authorities are directed
by 40 CFR §403.9te) simply to notify the applicant in writing
of the deficiency and suggest a means :.:r correcting such
deficiency. 40 CFR §403.11 [a) and Cci _~piicitly preclude
approval, by any Approval Authority, whether federal or
state, of any categorical pretreatment standard modification
request which does not conform to all the requirements cf
-------
40 CFR §403. 7 (b) and (c) . Only by scruui;ii~ing requests
for authority to modify categorical pretrea timer,:: standards
r.o reflect removal of pollutants by publicly owned treatment
works for conformity with 40 CFR §403.7(b) and (c) and by
denying approval of requests which fail to conform to 40
CFR §403.7{b) and tc) can the Director cf Environmental
Protection exercise his authority under ORC §6111.03(R> (4)
in a manner which complies with federal water pollution
control regulations, as provided by OrC §3745,OKA),
The authority and duty of the Director of Environ-
mental Protection to base determinations under ORC §6111.03 (R) (4)
*
on conformity of the requests with the conditions and criteria
of 40 CFS §403,7(b) and (c) is also established by that portion^
of ORC §6111.03 which provides that "Chapter 6111. of the
Revised Code shall be administered, consistent with the laws
cf this state and federal law, in the same manner that the
'Federal Water Pollution Control Act' is required to be
administered," As suggested above in this Comment, 40 CFR
§403.11 (a) and (c) establishes the manner in which the Federal
Water Pollution Control Act is required to be administered
insofar as said regulation requires approval authorities,
whether federal or state, to deny any requests for authority
to modify categorical pretreatment standards to reflect
removal of pollutants achieved, by publicly owned treatment
works whenever such reauests do not meet the reauirements of
-------
40 CFR §403.7 (b) and (c). Because Ohio law is silent as to
the criteria to be considered by the Director of Environmental
Protection when exercising authority pursuant to ORC §6111.03(R)(4
it would net be inconsistent with Ohio law for the Director of
Environmental Protection to evaluate requests under ORC
§6111.03(R)(4} on the basis of conformity with the conditions
and criteria of 40 CF?. §403, 7 (b) and (c). Finally, since 40
CFR §§403.7(b) and (ci, 403.9(c), and 4C3,ll(a} and (c) are
expressions of federal law, observance of the requirements of
said regulations cannot be inconsistent with federal law
except to the extent that said regulations are determined to
be unconstitutional, inconsistent with the Federal Water
Pollution Control Act itself or inconsistent with some other
federal statute. It is therefore eviient that ORC §6111.03
authorizes and requires the Director :. f Environmental Protection
to observe all valid conditions and criteria of 40 CFR §§403.7ib;
and tc], and 403.9{c) and to observe the requirements of
40 CFR §403.11 (c) .
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Authority To Make Determinations On Categorization of
Industrial CJsers And Reguests_ _Fgr _Fundam_e_n tally Different
Factors Variances
Stats law provides authority to:
a. Make a determination as to whether or not an industrial
user falls within a particular industrial subcategory
in accordance with -he requirements of 40 CFR §403.6;
and
b. Deny and/or recommend approval of requests for Funda-
mentally Different Factors variances for industrial
users as required by 40 CFR §§403.10(£){1) and 403.12
[Federal Authority; CWA sections 402 (b) (I} (A) , 402(b) (8),
510,and 40 CFR §§403.6, 403.10, 403,13;
Remarks of jthe Attorney General:
°Authority does no_t exist:
There is no deficiency in authority.
°The following changes need to be made:
None .
"Authority does exist:
-by Ohio Revised Code Section 6111.03(R)(S), for
the Director of Environmental Protection to "[m]ake determination:
on categorization,of industrial users" in the course of the
Director's administration of a POTW pretreatment program "in
accordance with che 'Federal Water Pollution Control Act.'"
-------
-by Ohio Revised Code Section 6111.03!R) 15) , for
the Director of Environmental Protection to "[d]eny and
recommend approval of requests for fundamentally different
factors variances submitted by industrial users" in the course
of the Director's administration of a PCTW pretreatment orDcra:?
"in accordance with the 'Federal Water Pollution Control Act.'"
-by Ohio Revised Code Section 6111.03, "to administer
and enforce the publicly owned treatment works pretreatment
program, . .in accordance with the 'Federal Water Pollution
Control Act.'"
-bv Ohio Revised Code Section 3745.01 (A} , for the,
\
Director or Environmental Protection to "take such other
action as may be necessary to comply with the requirements
of federal laws and regulations pertaining to air and water
pollution control. ..."
0Comments:
Ohio law provides authority to make a determination
as to whether or not an industrial user falls within a particular
industrial subcategory in accordance with the requirements of
40 CFR §403.6. Ohio law also provides authority to deny and/or
recommend approval of requests for Fundamentally Different
Factors variances for industrial users as required1 by 40 Ci'R
§§403.10 (f) (I) and 403.13.
Section 6 111.03CR) (6}of the Ohio Revised Code
explicitly authorizes the Director of Environmental Protection
to "[m]ake determinations on categorization of industrial
-------
users". Alchough there is no express reference ;,n Chapter 6111
of the Ohio Revised Code or in any regulations adopted there-
under to 40 CFR §403.6ta) or co the user-initiated certification
procedures described therein, the Director of Environmental.
Protection has authority to implement and comply with such
procedures.
The mandate in Section 6111.03(Rl of the Ohio Revised
Code to " [a] dminister and enforce the publicly owned treatment
works pretreatment program in accordance with the 'Federal
Water Pollution Control Act1" authorizes observance of the
provisions set forth in 40 CFR §403.6 (a) til-{61. Section
30? (b) (3) of the Federal Water Pollution Control Act requires
the Administrator to specify categories of sources to which
each pretreatment standard applies. Implementation of §§3Q7(d)
and 309 of the Act requires source-by-source determinations
regarding the appropriate categories for individual dis-
chargers. A regulation such as 40 CFR §403.6, which defines
the manner in which such source-by-source determinations are
made and provides for a state role in such process, is
necessary to implementation of the federal Water Pollution
Control Act, authorized by §501 (a) of such Act, and is in
keeping with §101(b) of such act. Compliance by the Director
of Environmental protection with the provisions of 40 CFR §403.6
is necessary at least to assure that the Director's source-
specific categorizations are consistent: with or "in accordance
-------
with" the categories established by the Administrator pursuant
to §307 (b)(3) cf the Federal Water Pollution Control Act.
An identical conclusion concerning the obligation
of the Director of Environmental Protection to proceed in
conformi-y with 40 CFR §403.6 when making determinations
pursuant to Section 6111. 03 (.Rl (6) of the Ohio Revised Code
is compelled by other provisions of O.R.C. §6111.03. The
penultimate paracraphof Section 6111.03 of the Ohio Revised
Code provides, in part:
Chapter 6111. of the Revised Code
authorizes the state, . ,to administer
and enforce the publicly owned treat- ;
,T,er,t works pretreatiuent program. . . .in r
accordance with the "Federal Water
Pollution Control Act". Chapter 6111.
of the Revised Code shall be admini-
stered, consistent with the laws of
this state and federal law, in the
same manner that the "Federal Water
Pollution Control Act" is required to
be administered'.
40 CFR §403.6 clearly establishes the manner in which the
categorization proces's* contemplated by Section 30" of the
Federal Water Pollution Control Act is required tc be admini-
stered, either by the EPA Regional Enforcement Division Director
or by the Director of a State water pollution control agency
with an approved NPDES permit program. None cf the requirements
of 40 CFR §403.6 are in any way inconsistent with the procedural
fe
requirements set forth in Chapters 3745 or 119 of the Ohio
Revised Code. While the provisions of 40 CFR §403.5 do not in
terms appear tc require that opportunity for an adjudication
-------
hearing before a State Director or other stare acinir.istracor
or judicial tribunal be afforded in connection with categorization
determinations, nothing in the aforementioned federal regulation
precludes the Director of Environmental Protection from complvir.c
with any applicable requirements of Chapter 3745 or Chapter 119
relating to notice, the conduct of hearings, review of admini-
strative action or other procedural matters. Finally, since
40 CFR §403,6 is itself an expression of federal law, admini-
stration of Ohio's publicly owned treatment works pretreatment
program in accordance with said regulation cannot be inconsistent
with federal law except to the extent, that said regulation is
determined to be invalid through conflict with the Constitution,
the Federal Water Pollution Control Act, or other federal *
statute, or for other cause. Therefore, it is apparent that
Section 6111.03 cf the Ohio Revised Code authorizes the
Director of Environmental Protection to conform with ail valid
requirements of said regulation.
Additional authority for the Director of Environmental
Protection to comply with 40 CFR §403,5 when implementing
Section 6111.03 IR1(6) of the Ohio Revised Code is provided by
Section 3745.01 (A) of the Ohio Revised Code. The latter
section authorizes the Director of Environmental Protection
to "take such other action as may be necessary to comply
with the requirements of the federal 1-iws and regulations
pertaining to air and water pollution control. ..."
CEmohasis supplied.)
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Explicit authority for the Director of Environments!
Protection to deny or recommend approval of requests bv
industrial users for fundamentally different factor variances
is provided by Section 6111.03 (R) (5) of the Ohio Revised Code.
Mo mention is made in Chapter 6111 of the Ohio Revised Code or
in regulations adopted pursuant thereto of the provisions of
40 CFR §403.10tf} (1) (vi), which requires that "(ajt a minimum,
the Director shall have the authority to: *** Deny and recommend
approval of (but not approve] requests for Fundamentally
Different Factors variances submitted by Industrial Users in
accordance with the criteria and procedures set forth in
§403.13," However, the Director of Environmental Protection
has all the authority required by 40 CFR §403.10(f) (11 (vi) ,
In conformity with the limitation in 40 CFR §403.13 (f) fi) (v:
the Director of Environmental Protection has no authority actually
to approve requests by industrial users for variances; rather,
the authority of the .Director of Environmental Protection under
O.R.C. §6111.03(R)(5) is confined to denying or recommending
approval of variance requests submitted by industrial users.
Furthermore, in accordance with the previsions of 40 CFR
§403.10tf}(1S (vi), the Director of Environmental Protection
has authority under Ohio law to comply with the criteria and
procedures set forth in 40 CFR §403.12, Although neither
Chapter 6111 of the Ohio Revised Code nor any regulation
promulgated thereunder refers to 40 CFR §403.13 or to the
criteria and orocedures set forth therein, Section 3745.G1CA)
-------
of the Ohio Revised Code authorizes the Director of Environ-
mental Protection to "take such other action as may be
necessary to comply with the requirements of federal laws
and regulations pertaining to. . .water pollution control."
Since by 40 CFR §403 .1C U ) UHvi ) compliance with the
criteria and procedures of 40 C?R §403.13 is necessary to
achieve the General Assembly's objective of state administration
and enforcement of the publicly owned treatment works pre-
treatment program, O.R.C. §3745.01(A) confers authority to
comply with such criteria and procedures.
Additional authority for the Director of Environmental
Protection to comply with the criteria and procedures of 40
CFR §403.13 when exercising authority under O.R.C. §6111.03(R,
is provided by the passage in Q.S.C. 56111.03 which mandates
that "Chapter 6111, of the Revised Cede shall be administered,
consistent with the laws of this state and federal law, in the
same manner that the^'Federal Water Pollution Control Act' is
required to be administered." 40 CFR §403,13 clearly purports
to establish the mariner in which the Federal Water Pollution
Control Act is required to be administered by either repre-
sentatives of U.S. EPA or Directors of state water pollution
control agencies with approved HPDES programs. There is no
conflict or inconsistency between the criteria set forth in
40 CFR §403>. 13 and Ohio law, which is silent as to the criteria
to be employed in considering a variance request under Ohio
-------
40 CFR §403.5; and (e) demonstrated percentages of removal
in accordance with 40 CFR §403.". At the time of said craft
Attorney General's Statement, the sole basis for doubt as to
the adequacy of the authority of the Director of Environmental
Protection to apply pretreatment requirements in t-ermits for
publicly owned treatment works related to the fact that the
Director of Environmental Protection then lacked authority -o
condition NPDES permits on conformity with any requirements of
the 1977 Amendments of the Federal Water Pollution Control
Act which were inconsistent with or less strinaent than the
recui rerr.ents imposed bv the 1972 Amendments of the Federal
" *
Water Pollution Control Act. Since all references to the *
Federal Water Pollution Control Act in Chapter 6111 of the
Ohio Revised Code have been amended t~ embrace the 1977 Amend-
ments of such Act, as noted above in ~.~e corrunent on Authority
N'o. 1, any previous doubts as to the adequacy of the authority
of the Director of Environmental Protection have been eliminated.
The Director of Environmental Protection has authority
tic a~c-lv in the terms and conditions of permits issued to
publicly owned treatment works compliance schedules for the
development of. publicly owned treatment works pretreatrnent
programs as required by 40 CFR §403.8 d). Pursuant to ORC
§6111. CjiJ), the Oirector of Environmental Protection may:
Issue, revoke, modify or deny permits
Water Pollution Control
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Act and mandatory regulations adopted there-
under, and set terms and conditions of permies,
including schedules of compliance, where
necessary. The terms and conditions shall
be designed to achieve and maintain full
compliance with the national effluent
limitations ... and national toxic and
pretreatment effluent standards set
under such act, and any other mandatory
requirements of such act that are imposed
by regulation of the administrator of the
United States environmental protection agency.
The above-quoted provisions of ORC §6111,03 (J) authorize the
Director of Environmental Protection to include in permits
issued to publicly owned treatment works compliance schedules
for the development of -publicly owned treatment works pretreat-
ment programs both because such compliance schedules are designed
to affect compliance with pretreatment standards and because 40
A
CFR §403.8(d) is a mandatory regulation of the federal Admin ii :
trator binding on all NPDES permit-issuing authorities,
The statutory commaixd that "Chap-er 6111. of the Revised
Code shall be administered, consistent with the laws of this
state and federal law.,, in the same manner that the 'Federal
Water Pollution Control Act1 is required to be administered...",
ORC §6111.03, provides additional authctity for the Director of
Environmental Protection to incorporate in permits issued to
publicly owned treatment works compliance schedules for the
development of publicly owned treatment: works pretreatment
programs. 40 CFR*§403.8(d) is clearly a regulation which
implements mandatory provisions of t,he Federal Water Pollution
-------
enforce the publicly owned treatment works pretreatment
program "in accordance with" the Federal Water Pollution
Control Act of 1977, 91 Stat. 1566, 33 C.S.C.A. §1251.
ORC §§6111.03(R), 6111.01(L). In so doing, the Director
of Environmental Protection is authorized to apply and
enforce pretreannent standards, GRC §6111.03(R) (1), and to
require compliance by industrial users with pretreatment
standards. ORC §6 111.03(R} (3) ,
In addition to the general authority conferred
on the Director of Environmental Protection by ORC §6111.03
(R)(1) and (3), specific authority is provided by Ohio i
Revised Code Section 6111.03(0) for the Director of Environ-
mental Protection to order any industrial user of any publicly
owned treatment works tc comply with ~retreatment standards.
Furthermore, the Director of Environmental Protection is
expressly authorized by Section 6111.042 of the Ohio Revised
Code, to adopt and enforce regulations setting forth and
requiring compliance with nations! toxic and pretreatment
standards as necessarv in order to assure compliance with
section 307 of the Federal Water Poliu-ion Control Act. Thus,
the Director of Environmental Protect- :-n may directly apply
pretreatment standards tc industrial users either by rule or
bv order.
-------
Although the phrase "pretreatment standards" is
not defined in CRC §8111.01, or elsewhere ir, the Ohio Revised
Code, it: is apparent that the references tio pretreatment.
standards in ORC §6111.03(0), (R/U) and (3), and 6111.042
include the national categorical pretrestment standards
promulgated by the Administrator of U.S.E.P.A. pursuant to
Section 307 (b) and (c) of the Federal Water Pollution Control
Act. In the first place, CRC §6111.042 authorised the adoption
of rules setting forth and requiring compliance with national
effluent standards, including the national toxic and pretreat-
ment effluent standards; an express object of the rulemaking
authority conferred by ORC §6111,042 is to assure compliance
with section 307 of the Federal Water Pollution Control Act, »
which prohibits, in subdivision (d), -he operation of any
source in violation of any applicable pretreatment standard
promulgated by the federal Administrator pursuant to said
section 307. In the second place, an express purpose of
~ *
Chapter 6111 of the Ohio Revised Code is to authorize Ohio
"to administer and enforce the publicly owned treatment
works pretreatment program...in accordance with the 'Federal
Water Pollution Control Act.'" ORC §€111.03. The Ohio
General Assembly has expressly commanded the Director of
Environmental Prelection so to administer and enforce the
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must be regarded as a residuum of authority to meet all
requirements which the Federal Water Pollution Control Act,
91 Stat. 1566, 33 U.S.C.A. §1251, imposes upon stages
administering publicly owned treatment works pretreatment
programs.
Each of the deficiencies in authority specified
in Part I of the draft Attorney General's Statement submitted
to U.S. EPA in 1978 pursuant to §402 (b) of the Clean Water
Act and 40 CFR §403.10 (g) related to the fact that the
authority of the Director of Environmental Protection under
various provisions of Chapter 6111 of the Revised Code as
then in effect was qualified by the object of compliance with
the 1972 Amendments of the Federal Water Pollution Control
Act rather than the 1977 Amendments of such Act. Under those
circumstances, the Statement concluded:
it is impossible to be certain that
there is no instance in which compliance
with the 1972 Amendments. . . will prevent
the Director from complying with the
FWPCA, as amended.
Any potential deficiencies in authority of the sort referred
to in the draft Attorney General's Statement have been
eliminated by the adoption of Am. Sub. H.3. 766 (effective
July 25, 1980), which amended provisions of Chapter 6111 of
the Ohio Revised Code. Presently, all references in Chapter
*
6111 of the Ohio Revised Code to the Federal Water Pollution
-------
pretreatment program, ORC 6111.03(R), Since section 30" id)
of the Federal Water Pollution Control Act prohibits the
violation of federally promulgated prstreatr.ent standards,
consistent administration and enforcement cf Ohio's pretreat-
rnent program requires that the federally-promulgated pretreat-
ment standards be applied to individual industrial users as
nin imuin standards.
While there is no explicit reference to the
requirements of 40 CTR §403.5 in any applicable Ohio statutes,
or any regulations adopted pursuant thereto, since said federal
regulation constitutes a pretreatmer.t standard promulgated
i
pursuant to section 3C7 of the Clean Water Act, it follows!
from the foregoing discussion that the Director of Environ-
mental Protection has authority to aptly the prohibitions of
40 CFR §403.5 to industrial users in accordance with the
aforementioned Ohio statutes.
Finally, by virtue of Section 3745.01(A) of the
Ohio Revised Code, the Director of Environmental Protection
has broad authority to take such action as is necessary to
comply with federal laws and regulati: r.s pertaining to water
pollution control. Particularly in l_:;hc of the unambiguous
declaration in ORC §6111.03 of Iegisl5:tive intent to authorize
the State of Ohio to "administer and enforce the publicly owned
t r e ri ^"nieii t" works c-re treatment Proc^rsirn. , » in accordance wicr
the 'Federal Water Pollution Control Act'", CRC §3745,01(A;
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Revised Code Section 6111,03{R)(5). Further, there is no
conflict between the procedural requirements of 40 CFR
§403.13 and those imposed by Ohio law, Ohio law imposes
no procedural requirements on the Director of Environmental
Protection with regard to recommendations for approval of
variances. Recommending approval of a variance is not an
"act" or "action" of the Director of Environmental Protection
within the meaning of 3745.04 of the Ohio Revised Code, and
hence the appellate procedures described in Ohio Revised Code
Sections 3745,04, 3745.05, and 3745.06 are inapplicable.
Similarly, since a recommendation for approval of a variance
is neither an "adjudication" within Ohio Revised Code Section
119.01(3) nor a "rule" within Ohio Revised Code Section 119.01 CO,
the previsions of Chapter 119. of the ?hio Revised Code do
not govern the issuance of such recor.r.encations. Furthermore,
the provisions of Ohio Revised Code Section 3745.07 governing
hearings upon proposed•actions and appeals of final actions do
not in terms apply to mere recommendations for the issuance
of variances. On the other hand, the denial of a variance
under Section 6111.03 CR) (.51 of the Qhi~ Revised Code would be
an "act" or "action" within Ohio Revised Code Section 3745.04,
and accordingly the provisions in O.R.C. §§3745.04, 3745.05,
and 3745.06 regarding the perfection ar.d conduct of appeals
from administrative action would apply. Similarly, because
the denial of a variance aoolication constitutes an "adjudication"
-------
within Section 119.01 CD) of the Ohio Revised Code, the
provisions of Chapter 119 governing the conduct of adjudi-
cations are applicable to denials under Ohio Revised Code
Section 6111. 03 (R) (.5). Furthermore, whether the Director of
Environmental Protection issues a proposed denial of a
fundamentally different factor variance or proceeds by way
of a final action, the procedures described in Ohio Revised
Code Section 3745.07 are clearly applicable to the denial
of a variance. However, the obligation of the Director of
Environmental Protection to observe the procedural requirements
set forth in Chapters 3745 and 119 of the Ohio Revised Code
in no way conflicts with the obligation to comply with the
procedures set forth in. 40 CFR §403.12. While the provisions
of 40 CFR §403.13lg) and (.h) do not in terms appear to require
that opportunity for an adjudication hearing before a State
Director or other administrative or judicial tribunal be
afforded in connection with the denial of a fundamentally
different factor variance, 40 CFR §403.14 (g) authorizes a
State Director to "consider the submission, any additional
evidence that may have been requested, ar.d any other aya i 1 ab 1 e
information relevant to the request" for a variance. lEmphasis
supplied.) Nothing in 40 CFR §403.13 (.g) or Ch) precludes the
Director of Environmental Protection from considering information
presented at an adjudication hearing upon a proposed variance
denial conducted bv Ohio EPA in accordance with Section 3745.07
-------
and Chapter 119 of the Ohio Revised Code or from considering
information presented at a de novo hearing conducted by the
Environmental Board of Review in accordance with Sections
3745.07, 3745.04, and 3745.05 of the Ohio Revised Code. Thus,
the procedural requirements imposed on the Director of Environ-
mental Protection by 40 CFR §403.13 are not inconsistent with
the observance of procedures mandated by Ohio law. Finally,
since 40 CFR §403.13 is itself an expression of federal law,
observance of the requirements of said regulation cannot be
inconsistent with federal law except to the extent that said
regulation is determined to be unconstitutional, inconsistent
with the Federal Water Pollution Control Act itself, or inconsists:
with some other federal statute. It is therefore apparent that
Section 6111,03 of the Ohio Revised C;ie authorizes compliance
with ail valid criteria ahd procedures set forth in 40 CFR
§403.13.*
*Qhio law contains no express provision for the Director
of Environmental Protection to consider fundamentally different
factor variance applications submitted by persons other than
industrial users/ Although 40 CFR § 40 2 . 13"(al (2 ] and (b] clearly
require a broader variance process where a program is federally
administered, 40 CFR §403.10tf)(l)Cvi) suggests that an approvable
state pretreatment program may limit the variance application
process to industrial users. If this interpretation is
correct, it would follow that no authority exists under Ohio
law to consider variance applications submitted by interested
persons other than industrial users. Cn the other hand, to the
extent that an approvable state program must allow for
participation by non-user requesters, then authority would
exist under §3745.01 (A) of the Ohio Revised Code for the
Director to consider the submissions of non-users.
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6 . Auth o r i t y to App 1 v_Rgcordinq_, Report, j.n_q _ _anc Moni- Qr• inQ
Requirements
State law provides authority to:
a. Require any industrial user of a Publicly Owned
Treatment Works to;
(1) Submit the report required by 40 CFR 403,12(b)
which:
(a) Sets forth basic information about the industrial
user, (e.g., process, flow)?
(b) Identifies the characteristics and amount of
the wastes discharged by the industrial usei
to the POTW; and *
(c) Proposes a schedule by which any technology
and/or operation and maintenance practices
required tro meet pretreatiaent standards will be
installed ,-
(2) Submit the "rfeports required by 40 CFR §403.12(c)
which account for the industrial user's progress
in installing any required pretreatir.ent or opera-
tion and maintenance practices;
(3) Submit the report required by 40 CFR §403.12 (d)
following the final compliance date for the
applicable pretreatment standard; and
-------
(4) Submit periodic reporting on continued compliance
with applicable pretreatment standards as required
by CFR §403.12 (e) ;
b. Require POTWs subject to the requirements of 4C CFR
§403.9(a) to:
(1) Report on progress in developing an apcrovable
POTW pretreatirtent program as required by 40 CFH
5403,12 fh); and
(2) Report on continued compliance with any authorized
modifications of categorical pretreatment standards
as required bv 40 CRR §403.7, 403. 12 (i) and <-);•
' t
c. Require POTWs subject to the requirements of 40 CFR
§403.3(a) and ail industrial users subject to pretreat-
ment standards to:
(1) Establish and maintain records as required by 40
CFR §403.12(n);
(2) Install, calibrate, use and maintain monitoring
equipment or methods (including where appropriate
biological monitoring method-; necessary tc
determine continued compliance with pretreatment
standards and requirements;
(3) Take samples of effluents (in accordance with
scecified methods at such locations, at such
intervals, and in such manner as may be prescribed);
and
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(4) Provide other information as may reasonably be
required.
[Federal A u thority: CWA section 308(a) and (b), 402(b}{2),
402 (b) (9); 40 CFR §§124.45(c), 124.61-63, 124.73(d),
403.7, 403.8, 403.10, 403,12]
Remarks of the Attorney General:
"Authority does not exist;
There is no deficiency in authority.
"The following changes need to be made;
None»
0Authority does_ exist: |
-by Ohio Revised Code Section 6111.03(0), for the
Director of Environmental Protection ~o n[i]ssue, modify, and
revoke orders requiring any 'industrial user' of any publicly
owned 'treatment works' :.. to ... establish and maintain
records; make reports; install, use and maintain monitoring
equipment or methods; "including where appropriate, biological
monitoring methods? sample discharges in accordance with such
methods, at such locations, at such intervals, and in such
manner as the director determines; and provide; such other
information as is necessary to ascertain whether or not there
is compliance with toxic and pretreatment effluent standards,"
»
-by Ohio Revised Code Section 6111.05, for the
Director of Environmental Protection to "require the maintenance
of records relating to the operation of ... disposal systems
discharces [by "industrial users" into /publicly owned "treat-
ment works"],"
-------
-by Ohio Revised Code Section 6111.03 (J), for the
Director of Environmental Protection to "condition penr.its upon
the installation of discharge or water quality monitoring
equipment or devices and the filing of such periodic reports
as the director prescribes."
-by Ohio Revised Code Section 6111.03 (H), for the
Director of Environmental Protection to issue orders recuirir.c
compliance with any term or condition of a permit, provided
that, to the extent consistent with the Clean Water Act of 1977,
consideration is given to, and the determination is based on,
evidence pertaining to technical feasibility, economic reason-
ableness and relative benefits to the people of the State.
"Comments:
In the 1973 -draft Attorney 7-eneral ' s Statement reviewing
the authoritv of the State of Ohio tc inclement an adecuate
pretreatnent programf the Attorney General concluded that
Ohio lacked authority to require any recording, reporting or
monitoring not consistent with the 19"2 Amendments of the
Federal Water Pollution Control Act or to require any recording,
reporting or monitoring which did not accord with factors the
Director was required to consider in issuing orders under Ohio
Revised Code Section 6111.03(H) or (0;, or in establishing
permit conditions- under Ohio Revised Code Section 6111.03 (J).
Because then-exis-ing versions of Section 6111.03(K!, {J) and
(C) crecluded the Director of Environmental Protection from
-------
complying with any pest;-1.972 restrictions limiting considera-
tion of factors such as technical feasibility, economic
reasonableness or conditions calculated to result, from compliance
and their relation to benefits to be derived from compliance,
the previous Attorney General's Statement concluded that
recording, reporting or monitoring requirements imposed by
administrative order or incorporated as permit conditions
might not always comply with the 1977 Federal Water Pollution
Control Act Amendments, Accordingly, said Attorney General's
Statement concluded that references in Ohio law to the Federal
Water Pollution Control Act needed to be updated to refer to
the present requirements of the 1977 Amendments.
As previously noted in connection with Authority 1, 4
the definition of "Federal Water Pollution Control Act" in
Section 6111. .01 (L) has been amended to include reference to
the Clean Water Act of 1977. By virtue of this amendment,
recording, reporting and monitoring requirements established
by order of the Director of Environmental Protection pursuant
to Ohio Revised Code Section 6111.03(H) or (0) may only be
based upon consideration of technical feasibility, economic
reasonableness, conditions calculated to result from compliance,
and their relations to benefits to the people of the state to
the extent that Consideration of such factors is permitted by
present federal law. Similarly, in view of the amendment of
-------
Ohio Revised Cede Section 6111.OI(L), permit conditions imposinc
reporting and monitoring requirements pursuant to Ohio Revised
Code Section 6111.03 (J) may be based on a consideration of,
technical feasibility, economic reasonableness and reasonable
compliance times to the extent authorized by Dresent federal
law. Thus, Ohio law now provides authority to establish repcrtinc
recording and monitoring requirements which are fully consistent
with present federal law.
-------
Authority To Apply Entry, Insection And Samling
Stats law provides authority to enable authorised .representative-
of the State, and POTWs with approved pretrea tirtent programs,
upon presentation of such credentials as are necessary, to:
a. Have a right of entry to, upon, cr through ar.y premises
of a POTW cr of an industrial user of a POTW m which
premises an effluent source is located or in which any
records are required to be maintained;
b. At reasonable times have access to and copy any records
required tc be maintainedr
c. Inspect any monitoring equipment or method which is i
required; and
d. Have access co and sample any discharge of pollutants tc
State waters or to a POTW resulting from the activities
or operation of the' POTW or industrial user.
i Federal Author! ty: CWA sections 308 (.a ) and •;,£], 402(bj(2),
4Q2lb){9) and 40 CFS-§§403.7, 403.8, 403.10, 403.12]
Remarks of the Attorney General:
0Authority does not exist:
There is no deficiency in authority.
°The following changes need to be made:
None.
"Authority does exist:
-bv Ohio Revised Code Section 6111.05:
-------
--for "the director or his duly authorize*
representative" to "enter at reasonable times upon anv
private or public property to inspect and investigate
iting to pollution of any waters of the
—for "any authorised representative of a
publicly owned 'treatment works'" to "enter at reasonable
tinaes upon the premises of any 'industrial user' that
discharges into the works. . . in order to ascertain compliance
by Hie user with applicable pretreatment standards."
--for "any authorized representative of the
director" to "at reasonable ti.T.es examine any records or
memoranda pertaining to the operation of disposal systems
or discharges by 'industrial users' into 'publicly owned
treatment works. , , . ' "
—for "any authorized representative of a
publicly owned treatment works" to inspect any records cr
memoranda pertaining HO discharges by the user into the works. . ,
--for "the representative" of the director or
of a publicly owned treatment works tc make copies of records
pertaining to the operation of disposal systems or discharges
by industrial users into the treatment works.
—for "the director or his duly authorized
representative" tt> inspect any monitoring equipment. ..."
--for "the authorized representative of a
publicly owned 'treatment works'. . .to inspect any monitoring
equipment cr method of the user. ..."
-------
--for "the director or his duly aur.hori.zed
representative" to "sample any discharges , including discharges
by 'industrial users' into a publicly owned 'treatment
works'. . . ."
--for "any authorised representative of a
publicly owned 'treatment works'" to "sample any discharges
of the user into the works, ..."
— for "the director or his authorized representati1
to apply for and obtain "a warrant necessary to achieve the
purposes" of Chapter 6111 of the Ohio Revised Code.
--for "the authorized representative of a
publicly owned ' treatment works'" to apply for and obtain ''a
warrant necessary to achieve the purposes" of Chapter 6111 of
the Ohio Revised Code, "where necessary to monitor compliance
with pretreatment standards. . . . "
-by Ohio Revised Code Section 3745.01(A), for the
Director to "take such other action as may be necessary to
comply with the requirements of the federal laws and regulations
pertaining to air and water pollution control. . . ."
-by Ohio Revised Code Section 6111.03 (Jl, for the
Director of Environmental Protection to condition permits upon
"the right of his authorized representatives to enter the
premises of the person to whom the permit has been issued for
the purpose of determining compliance with Chapter 6111. of
the Revised Code, rules adopted thereunder, or the terms and
conditions of a perir.it, order or other determination."
-------
-by Ohio Administrative Cede Rule 3745-33-05(A) (~),
to include in each Ohio N'PDES permit conditions requirir.c:
That the permittee shall allow the
Director or his authorized representative
to enter upon the permittee's premises.
The authorized representative shall have
access to ar.y records required to be kept
under the terms of the permit and may
copy any such records. The Director or
his authorized representative shall have
access to any monitoring equipment or
wastewater treatment facilities operated
by the permittee for the purpose of
inspecting such equipment or method
required in the permit and shall have
access to point sources for the•purpose
of sampling tne -discharge. . . .
The draft Attorney General's statement submitted to
U.S. EPA in IS78 indicated that "the only change required for
State pretreatment program approval is to update references to
the ?W?CA which appear in Section 6111.01 to 6111.08 so that
the Director Tidy, under Section 6111.03{J/ , condition permits
en the right of entry for the purpose of determining compliance
with standards and terms which are consistent with the FWPCA,
as amended by the CWA. ..." The amendments to Chapter 6111
effected by Am. Sub. H.B. No. 766 (198'.'; implement the
recommendation to update references tc the Federal Water
Pollution Control Act and provide all authority necessary for
aDDroval of the State's oretreatntent crocram.
-------
Authorized representatives of the State of Ohio
may enter upon any premises of a publicly owned treatment
works or of an industrial user of such treatment works in
which preir.is'es an effluent source is located or in which
any records are required to be maintained, by virtue of
the passages in the second paragraph of O.R.C. §6111,05
providing that the Director of Environmental Protection or
his duly authorised representative "may enter at reason-
able times upon any public or private property to investi-
gate conditions relating to pollution of any waters of the
state, inspect any monitoring equipment, and sample ar.y
discharges, including discharges by 'industrial users' *
into a 'publicly owned treatment works', . . ." (Emphasis
supplied.) The broad authority to enter any premises to
investigate conditions relating to pollution of any waters
of the state subsumes the power to enter premises where
records are maintained, and the authority to enter premises
to inspect monitoring equipment and sample discharges clearly
enables the Director of Environmental Protection or his
authorized representative to enter any premises in which an
effluent, source is located.
-------
In addition to the right of entrv conferred UDC,"
the Director of Environmental Protection or his authorized
representative directly by statute, permits issued bv the
Director of Environmental Protection are required to be
conditioned upon the right of authorised representatives
of the Director of Environmental Protection to enter
upon the premises of the permittee "for the Durpose of deter-
mining compliance with Chapter 6111. of the Revised Code, rules
adopted thereunder, or the terms and conditions of a permit,
By applyin
for and accepting a permit so conditioned, a publicly owned treat-
ment works or industrial user thus consents to entry by
representatives of the Director of Environmental Protection.
Under Ohio law, authorized representatives of pub-
licly owned treatment works, inciudir.r -hose publicly owned
treatment works with approved pretreatment programs, may
enter upon any premisses of industrial users of such treat-
ment works, in which premises anv effluent source is located
or in which premises anv records are r-:,-cuired to be maintained.
The third paragraph of Section 6111.0: DI the Ohio Revised Code
expressly provides that "[a]ny authorised representative of a
-------
publicly owned ' treatment; works ' may enter at reasonable
times upon the premises of any 'industrial user1 that
discharges into the works to inspect any monitoring equipment
or method of the user, to sample any discharges of the user
into the works, or to inspect any records or memoranda
pertaining to discharges by the user into the works, in order
to ascertain compliance by the user with applicable pretreatment
standards." The authority granted by the above-quoted passage
necessarily includes authority to enter premises in which
records are maintained as well as premises in which effluent
sources are located.
Authorized representatives of the State of Ohio may
at reasonable times have access to and copy any records
required to be maintained. Such authority on the part of
representatives of the State derives in part from the
previously discussed authority of the Director of Environmental
Protection or his authorized representative at reasonable
times to enter public or private property to investigate
conditions relating to pollution and :r. part from the
authority of any authorized representative of the Director
of Environmental Protection at reasonable times to "examine
any records or memoranda pertaining to the operation of
disposal systems er discharges by 'industrial users' into
publicly owned 'treatment works'. ..." ORC §6111.05,
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Section 6111.05 of the Ohio Revised Code further provides:
The director may require the maintenance
of records relating to the operation of
such disposal systems or discharges. The
•director may raake copies of such records.
The term "disposal system" is defined in ORC §6111.01CG)
to include sewerace systems and treatment works, and the
definition of "treatment works" in ORC §6111.0!(F) does
not exclude those works which are publicly owned. Thus, the
aforementioned authority to examine and copy records or
memoranda of disposal systems includes authority no examine
and copv records of publicly owned treatment works.
The right of authorized representatives cf publicity
owned treatment works to access at reasonable times to records
of industrial users cfsuch works is established in the preceding
comments regardir.c the naht cf such representatives to enter
and inspect memoranda or records pertaining to discharges by
industrial users into such works. (.See paragraph no. 4 of
this Comment.) Section 6111.05 of the Ohio Revised Code
further provides thai: representatives cf publicly owned
treatment works may make copies of records pertaining to
discharges by industrial users into su;h treatment works.
Pursuant to the second paragraph cf ORC §6111.05,
the Director of Environmental Protection or his duly-
authorized representative is authorized to "inspect any
monitoring equipment. . . ." Section 6111.05 cf the Ohio
Revised Code does not exoresslv confer uoon the Director or
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Environmental Protection or his authorized representative anv
authority to inspect monitoring methods; however, the authorif
to inspect monitoring methods is implicit in powers granted
to the Director of Environmental Protection under ORC
§56111.03 and Sill. 05. Under Section 6111.05 of the Ohio
Revised Code, the Director of Environmental Protection has
authority to "investigate and make inquiries into any alleged
act of pollution or failure to comply with Chapter 6111. of
the Revised Code, or any order, rule, the terms and conditions
of a permit or other determination pursuant thereto,"
Similar authority is implicit in the provisions of ORC ;
§6111.03(J) mandating that permits be conditioned on the
right of authorized representatives of the Director of
Environmental Protection to enter a permittee's premises
"for the purpose of determining compliance with Chapter 6111.
of the Revised Code, rules adopted thereunder, or the terms
and conditions of a pe.rmit order or other determination."
By virtue of ORC §6111.03 (P), the Director of Environmental
Protection may exercise all incidental powers necessary to
carry out the investigatory powers referred to above. The
Director of'Environmental Protection clearly has authority
to order the use of particular monitoring methods, including
biological methods, under ORC §6111. 0 3 (.0) , and the
authority to inspect any monitoring methods so required is
inherent in the investigatory powers referred to above in
this paragraph. Furthermore, ~o the extent that, use of
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particular monitoring methods may be required by regulations
promulgated by the Administrator of C.S. EPA, the Director
of Environmental Protection is authorized and directed by
ORC §6111. 03 (j) -Q include in permits terms and conditions
requiring use of such methods, and the authority under
CRC §§6 111.03 (J) and 6111.05 to investigate or determine
compliance with terms and conditions of permits would
necessarily include authority tc inspect any monitoring
method required by a permit. Similarly, to the extent that
inspection of monitoring methods is necessary to comply with
the requirements of the Federal Water Pollution Contrcl Acti
or regulations promulgated thereunder, the Director of
Environmental Protection has authority under ORC §3745.01(A)
to "take such other action as may be r.-^cessary to comply" with
such requirements.
Ohio law provides authority representatives of a
publicly owned treatment works to inspect any monitoring
equipment or method employed by an industrial user. Section
6111.05 expressly provides:
Ar.y authorized representative of a publicly
owned "treatment works" may -^nter at
reasonable times upon the premises of
any "industrial user" that discharges into
the works to inspect any monitoring
equipment cr meth_od of the user. . .
(Emphasis supplied.)
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By provicing thst " [ t J he director of envi rorun 12n ta 1
protection may enter at reasonable times upon any public or
private property to inspect and investigate conditions relatir.c
to pollution of any waters of the state . . . and sample any
discharges, including discharges by 'industrial users' into H
publicly owned 'treatment works'", Section 6111.05 of the Ohio
Revised Code grants to representatives of the Stare access
to, and the right to sample, any discharge of pollutants to
Stats waters or to a publicly owned treatment works resulting
from operation of a publicly owned treatment works or an
industrial user. Additional authority for State representatives
to enter the premises, and sample the discharge, of publicJy
owned treatment works is provided by permits issued to publicl
owned treatment works in accordance with ORC §6111.03(J) and
OAC Rule 3745-33-05(A) (7). Section 6111.03{J) requires the
Director of Environmental Protection to condition permits on
the right of an authorized representative to enter a permittee's
premises for the purpose of determining compliance with ORC
Chapter 6111, rules promulgated thereunder or the terms and
conditions of a permit order or other determination. Since
sampling is a necessary and appropriate means for determining
compliance with the foregoing, sampling is within the authority
contemplated by ORC §6111.03(J) and (F). Ohio Administrative
*" *
Code Rule 3745-33-05(A)(7) expressly provides that all Ohio
NPDES permits shall contain provisions authorizing the Director
cr his representative to- "have access to point sources for the
purpose of samolinci the discharge. ..."
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Finally, previously quoted provisions of ORC
§6111.05 expressly authorize representatives o: publicly
owned treatment works to "er.ter at reasonable times upon
the premises of any 'industrial user' that discharges
into the works. . .to sample any discharges by the user
into the works, in order to ascertain compliance by the
user wirh applicable ore-treatment, standards,"
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Authority to Issue Notices, Transmit Data, and
Oocortunitv for Public Hearincs and Public Access to
State law provides authority to comply with requirements
/•
of 40 CFR §403 . 11 to :
a. Notify the public, affected States and appropriate
governmental agencies of ;
(1) requests for ?OTW pre treatment program approval;
and
(2) approval of POTW pre treatment programs;
b. Transmit such documents and data to and from the i
United States Environmental Protection Agency and to
other appropriate governmental agencies as may be
necessary ;
c. Provide an opportunity for public hearing, with
adequate notice thereof/ prior to ruling on applica-
tions for POTW rure treatment program approval; and
d. Ensure that requests for PCTW pre treatment program
approval and all comments received pertaining to these
requests for program approval are available to the
public for inspection and copying .
[Federal Au t ho r it y : 40 CFR §403.113
*
Remarks of the A 1 1 c r n 6 y G e n_e r a 1 ;
"Authority does ncj: exist:
There is no d Q f i c i e ri c v i ." . a u i he r i ^ v
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"The following chances need to be mader
None .
3Authority does exist:
-by Ohio Revised Code Section 6111.03(3), for the
Director of Environmental Protection to "administer and
enforce the publicly owned treatment works pretreatment pro-
gram in accordance with the 'Federal Water Pollution Control
Act.'"
-by Ohio Revised Code Section 6111.03, for the Direc-
tor cf Environmental Protection to administer "Chapter 6111.
of the Revised Code. . . , consistent with the laws of this
state and federal law, in the same manner the 'Federal Water
Pollution Control Act' is required tc be administered."
-by Ohio Revised Code Section 6111. 03 (Pi, for the
Director of Environmental Protection i D exercise "all inciden-
tal powers necessary to carry out the purposes of Chapter 6111
of the Revised Code."
-by Ohio Revised Code Section 3745.01 (A) , for the
Director of Environmental Protection tr "take such other action
as may be necessarv to comely with the reauirements of federal
laws and regulations pertaining to air and water pollution
control...,"
-by Ohio Revised Code Section 6111.03(3), for the
Director of Environmental Protection, "before adopting, modi-
fying, or reoealinc a standard or rule pursuant to division
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of section 6111,03 or section... 6111,042 of the Revised Cede"
to:
--"(1) mail notice to each statewide "organization
that he determines represents persons who would be affected
by the proposed standard or rule, amendment thereto, or
repeal thereof at least thirty-five days before any public
hearing thereon..."
--"(2} mail a copy of each proposed standard
or rule, amendment thereto, or repeal thereof to any person
who requests a copy, within five days after receipt of
the recruest..."
--"{3} consult with appropriate state and local
government agencies or their representatives, including
statewide organizations of local government officials,
industrial representatives, and r-her interested person,"
-by May 7, 1974 resolution of the Director of
Environmental Protection, to consult with an extensive list
of government agencies or representatives and statewide organ-
izations of local governmental officials, industrial representa-
tives, and other interested persons? before adopting, modifying
or repealing any standard or regulation of Ohio EPA.
0Comments:
At the time Ohio applied for State MFDES program approval, the
Attorney General's Statement submitted to the U.S.E.P.A.
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certified that Ohio had authority to provide notice, trans-
mission, and opportunity for public hearing as required under
-he Federal Water Pollution Control Act Amendments of 19"2
and requiations adopted thereunder. Such certification relied
on the statutory authority of Section 6111.03(P), which author-
ised the Director of Environmental Protection to exercise
"all incidental powers necessary to carry out the purposes of
sections 6111.01 to 6111.08 and sections 6111.31 to 6111.38 of
the Revised Cede." However, because pertinent provisions of
Ohio Revised Code Sections 6111.01 to 6111.08 and 6111.36
then required conformity with the 1972 Amendments of tne Federal
Water Pollution Control Act, the draft Attorney General's
Statement submitted the U.S.E.P.A. when Ohio last applied for
pretreatment program approval indicated that Ohio law did not
authorize the Director of Environmental Protection to- corr.plv
with notice, transmission, public hearing and public inspection
requirements established by the 1977 Federal Water Pollution
Control Act Amendments, to the extent that such requirements
differed from those established bv the 19"72 Amendments.
Accordingly, the draft Attorney General's Statement concluded
that references in Ohio Revised Code Chapter 6111 needed to
be updated to encompass all requirements established by the
Amendments of the Federal Water Pollution Control Act.
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The changes in Ohio law recommended in ".he draft
Attorney General's Statement have been adopted. By virtue
of che definition set forth in Ohio Revised Code Section
61.11.01 (L) , all references in Ohio Revised Code Chanter 6.1.1
to the "Federal. Water Pollution Control Act" relate to the
Act as amended in 1977. At present, the penultimate "aragrach
of Section 6111.03 of the Ohio Revised Code expressly indicates
that Chapter 6111 is intended to authorize state administra-
tion and enforcement of the publicly owned treatment works
pretreatment program. Furthermore, Ohio Revised Code Section
6111. 03 (R) expressly requires the Director of Environmental
Protection to administer and enforce the publicly owned treat-
ment works pretreatment program "in accordance with the 'Fede
Water Pollution Control Act.'" Similarly, the penultimate
paragraph of Section 6111.03 also contemplates that Chapter 6111
of the Ohio Revised Code will be administered "in the same
manner that 'the Federal Water Pollution Control Act' is
required to be administered." In discharging the foregoing
responsibilities,the Director of Environmental Protection
may exercise "all incidental powers necessary to carry out the
purposes of Chapter 6111 of the Revised Code". Since the
purposes of Chapter 6111 now expressly include implementation
of the Federal Water Pollution Control Act Amendments of 1977,
the incidental powers granted to the Director of Environmental
Revised Code Sec-ion 6111.0.3 (P) now provide
-------
a sufficient basis of authority to comply wirr, notice,
transmission, public hearing and public inspection provisions
as required by this authority.
-------
Standards and Reauirements
a. Enforce against violations by industrial users and
PCTWs of:
(1) Permit: Requirements;
(2) National categorical pretreatment standards;
(3) Prohibitive discharge limitations developed in
accordance with 40 CFR §403.5;
(4) Requirements -for recordinc, reporting, monitoring,
er.trv, inspection and sampling;
.b. Enforce against violations described in paragraph !a)
above using enforcement mechanisr-.s which include the
following:
(1) Injunctive relief;
(2) Civil and criminal penalties and fines which are
comparable .to the maximum penalties and amounts
recoverable under section 3C9 of the CWA or which
represent an actual and substantial economic
deterrent to the actions for which they are
assessed or levied.
[Fedj^rjj. Authority: CWA section 3C9, 4G2{b;(7), 402(h);
40 CFR §§403.S, 403.10]
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-by Ohio Revised Code Section 6111.07(3), for the
"attorney general, upon the written request: of the director
of environmental protection," to:
—"prosecute any person who violates anv order,
rule, or condition of a permit, issued by the director"
pursuant to Sections 6111.01 to 6 111.OS of the Ohio
Revised Code, and
—"bring an action for an injunction against any
person violating or threatening tc violate any order, or
rule, or condition of a permit issued by the director
pursuant to Chapter 6111."
-by Ohio Revised Code Secti~- 6 111. 03 (L), for -he
Director of Environmental Protection t~. "institute, or cause to
be instituted in any court cf competent ; ur:. = d .let ion , proceedings
to compel compliance with Chapter 6111 of the Revised Code, with
the orders of the Director issued pursuant to such chapter, or
tc insure compliance with sections ... 307 and 308 cf the
'Federal Water Pollution Control Act'",
-hv Ohio Revised Code Sec tier: 6111.03 1C) , for the
Director of Environmental Protection to "issue, modify, and
revoke orders requiring any 'industrial user' of any 'publicly
owned treatment works' ... to corr.dv with ore treatment standards;
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establish arid ir.air.tain records;,- make reports, install, use and
maintain monitoring equipment or methods, including, where aocrc-
nr.iate, biolccical monitoring methods; sample discharges in
accordance with such methods, at such locations, at such intervals
and in such manner as the director determines is necessary to
ascertain whether or not there is compliance with toxic and cr~-
treatment effluent standards."
-by Ohio Revised Code Section 6111.03 (K! (4) , for the
Director of Environmental Protection to "issue, modify or
revoke orders to prevent, control, or abate water pollution ...
requiring compliance with any ,,. term or condition of a
permit."
-by Ohio Revised Code Section 6111.09, for the
attorney general, upon the written request of the Director of
Environmental Protection, to commence an action to recover a
civil penalty cf up to 510,000 per day of violation for violation!
of Section 6111.07 of the Ohio Revised Code.
-by Ohio Revised Code Section 6111. 99 (A) , for imposition of
criminal penalties of not mere than $25,000 and/or imprisonment
for not more than one year, for violation of Sections 6111.04,
6111,05, or 6111.07(A) of the Ohio Revised Code.
-by Ohio Revised Code Section 6111.99(0, for imposition
of criminal penalties of not more than $25,000 for violation of
Section 6111.07 (C) of the Ohio Revised Code.
-------
-by Ohio Revised Code Section 6111.03(R) (3), for the
Director of Environmental Protection, in the course of adrr.inis-
terina the ?OTW pretreatmer.t program in accordance with the
Federal Water Pollution Control Act, to:
--"require compliance by publicly owned treat-
ment works" with pretreatment programs incorporated into s.
perrr.it issued to a POTW, and
--"require compliance by industrial users with
pretreatmer.t standards. ..."
-by Ohio Revised Code Section 6111.03(R)(!}, for the
director of environmental protection, in the course of admini-
stering the PCTVv pretreatment program in accordance with the
Federal Water Pollution Control Act, to "apply and enforce
pretreatmer.t standards."
"Comments:
Ohio Revised Code Sections 6111 . 03 ( L) , 6111.0", 6111.Oi
and 6111.99 provide authority to enforce, by means of injunctive
relief, civ:, 1 penalties and criminal fir.es, any duty imposed
by O.R.C. Sections 6111.01 through 6111,08 and any rule, order
or term or condition of a permit issued by the Director of
Environmental Protection. The aforementioned provisions
apply without limitation to industrial ^sers and publicly
owned treatment works; hence, state authority extends to the
enforcement against industrial users and publicly owned treat-
ment works of such oermt requirements, national catecorical
-------
pretreatment standards, proniDitive discharge iircizations and
requirements for recording, reporting, monitoring, encry,
inspection, and sampling as the Director of Environmental
Protection is authorized to adopt or apply. The authority of
the Director of Environmental Protection to adopt or apply
such requirements is discussed in connection wirh Authorities 1,
2, 3, 6, and 7, above.
The terms and conditions of permits issued to indus-
trial users or publicly owned treatment works may be enforced
either directly in judicial proceedings pursuant to Ohio Revised
Cede Sections 6 111.07(B), 6111,09 or 6111.99 or indirectly
through the issuance of administrative orders requiring com-
pliance with any term or condition of said permits pursuant to
Section 6111.03(H) (4) of the Ohio Revised Code. Such admini-
strative orders need not be issued pri^r to the initiation of
of actions for injunctive relief, civil penalties, or criminal
fines.
Orders under Section 6111.03;H) do not authorize court
proceedings and may not be applicable ro both che publicly owned
treatment works and the industrial user in a particular situation;
however, when an order under Section 6111.03(K) is issued, it
can be enforced by any of the civil or criminal remedies, in-
cluding action for injunction, which are available under O.R.C.
Sections 6111. 03 (L), 6111.07, 6111.09 and 6111,99. Although
thev mav be useful enforcement tools, orders under Section
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6111. 03 (K) will not have application as broad or results as
direct as those which can be achieved under Sections 402 ;h)
and 309 (f) of the FWTCA, as amended by the CWA.
Na-tional categorical pretreatmer.t standards, including
the prohibitive discharge limitations developed in accordance
with 40 C.F.R. §403.5, may be enforced under O.R.C. §§6111,03(1),
6111.07, 6111.09 and 6111.99 against violations by industrial
users of publicly owned treatment works to the extent that such
standards or -limitations are incorporated in the terms or
conditions of permits issued to industrial users or publicly
owned treatment works pursuant to O.R.C. §6111.03(J), or to the
extent that such standards or limitations are the subject of
compliance orders issued under O.R.C. §§6111.03(0) or 6111.03
(H) (4) , or are otherwise applied to industrial users cr publicly
owned treatment works under Section 6111.03(R) (!) of the Ohio
Revised Code. Furthermore, once the Director of Environmental
Protection adopts rules setting forth and requiring compliance
with national pretreatment effluent standards in conformity
with the requirement of Section 6111.C42 of the Chic Revised
Code, any national categorical pretres.mer. t standard which has
been made the subject of a rule under 7.R.C. §6111.042 may be
directlv enforced against industrial users or publicly owned
treatment works under O.R.C. §§6111.07, 6111.09 or 6111.99
whether or not permits or orders have creviouslv been issued to
such industrial users cr oubliclv owned treatment works.
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Requirements for recording, reporting, mor.itorir.g ,
entry/ inspection, and sampling may be imposed as terms and
conditions cf permits issued to industrial users or publicly
owned treatment works by the Director of Environmental Protec-
tion pursuant to O.H.C. §6111.03 (J) . Recording, .reporting,
monitoring and sampling requirements may also be Imposed en
industrial users or publicly owned treatment works by means cf
orders issued pursuant: to O.R.C. §6111.03(03. Requirements
imposed by either of the foregoing methods may be enforced
in actions for injur.ctive relief, civil penalties or crim-
inal fines under O.R.C. §§6111.07(3), 6111.09 or 6111.99,
respectively. Furthermore, the statutory duty of all permittees
under O.R.C. §6111.05 -co allow entry by any authorized repress
tative of the Director of Environmental Protection and to
refrain from interfering with the exercise of authority under
O.R.C. §6111.03 to investigate conditions relating to pollution,
inspect monitoring equipment, sample discharges and examine
records or memoranda is independently enforceable under O.R.C.
§§6111.07{B), 6111.09, 6111.99.
The civil and criminal penalties presently authorized
by O.R.C, §§6111.09 and 6111.99, respectfully, are substantially
similar to those which have been authorized since 1973. The
510,000.00 penalty per day of violation authorized by Section
6111.09 of the Ohio Revised Code is identical in amount to
that authorized by §309 (d) of the Federal Water Pollution Cor.trc]
-------
Act. The 325,000.00 fine and/or one year imprisonment author- '
ized by O.R.C, §6111,99(A) is comparable to the penalty provide;
in §309 (c) CD of the Federal Water Pollution Control Act for
first convictions. Although Ohio law does not authorize a
penalty of up to 550,000.00 and/or two years imprisonment for
violations occurring after a first conviction, the penalties
provided in O.R.C, §6111.99 (A) represent an actual and sub-
stantial economic deterrent to the actions for which they raav
be assessed. Finally, the fine of up to 525,000.00 authorized
by O.R.C. §6111.99(03 for violation of O.R.C. §6111.07(0 is
substantially larger than that authorized under Federal Water
Pollution Control Act §309(c)(2) for similar 'offenses.*
Although O.R.C. §6111.99 (C) does not authorize imprisonment
for the knowing submission of false information or records or
failure to submit informat ion or reccris, in contrast with §309
(c'i (2} cf the Federal Water Pollution Control Act, the fine
*Even though §3D9(c)(2) of the Federal Water Pollution
Control Act reaches conduct not within the scope of O.R.C.
§§6111.07 (C) and 6111.99{C), to the extent that the federal
penalty provision applies to falsification, tampering with
or rendering inaccurate monitoring devices or methods required
to be maintained under the Federal Water Pollution Control Act,
it does not follow that such misconduct may not be criminally
punished under Ohio law. Violation c; sr.y duty to employ or
maintain monitoring devices or method?., whether such duty be
imposed by an order issued pursuant to Section 6111.03 (o) of
the Ohio Revised Code or as a term or rondition of a permit
issued in accordance with O.R.C. §6111.03(J) is prohibited by
O.S.C. §6111.07(A) and may be punished as provided in O.R.C.
§6111.99 (A). Similarly interference with any monitoring device
or method employed cr maintained by the Director of Environments
Protection in accordance with O.R.C. §6111.05 is prohibited by
O.R.C. §§6111.05 and 5111.07(A) and punishable under O.R.C.
§6111.99(A).
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authorized by O.R.C. .§6111.99 (C) represents an actual and
substantial economic deterrent to violations of 0,R.C,
§6111.07(C).
The Guidance from the Deputy Administrator for
Office of Water Enforcement which was followed in preparation
of this Statement asks for additional information concerning
the authority of publicly owned treatment works to enforce
against violations of pretreatment standards by industrial
users, to require reporting, recording, and monitoring by
industrial users, and to enter the premises of industrial
users to determine compliance with oretreatraent requirements.
In this connection, State law provides authority:
-by O.R.C. Sections 715.40, 717.0KJ), and 719.0KJ)
for a municipal corporation to construct and keep in repair
sewage disposal works and treatment plants; by O.R.C. Section
715.03, for a municipal corporation to provide by ordinance
or resolution for the exercise and enforcement of its powers;
by O.R.C. Section 729.51, for the director of public service
and board of trustees of public affairs to make such bylaws
and regulations, with the effect of ordinances, as are n-ec-
essary for the safe, economical, and efficient management
and protection of the sewerage system and sewage treatment
and disposal works, consistent with State and municipal law;
-by O.R.C. Section 6101.04 (H), for a conservancy dis
trict to provide for the collection and disposal of sewage and
-------
other liquid wastes produced within the district; by O.R.C.
Section 6101.14, for the directors, employees, or agents of a
conservancy board to enter upon lands to make surveys and
examinations to accomplish the necessary preliminary purposes
of the district, or have access tc the work; by O.R.C, Section
6101.19(A)(5), for a conservancy district to make regulations
prohibiting or regulating the discharge into the sewers o f the
district of any 1iquid or solid wastes deemed detrimental to
the works and improvements of the district, consistent with
requirements of the Director, and to enforce its regulations
by mandamus or otherwise; by O.R.C. Section 6101.77, for the
board of directors of a conservancy district to institute
court proceedings to enforce compliance by any person or
public corporation with any order of the board;
-by C.R.C, Sections 6115.04,'D) and 6115.08, for a
sanitary district to provide for the collection and disposal
of sewage and other liquid wastes produced within the district
through the construction and maintenance of necessary works;
by O.R.C. Section 6115.15, for a sanitary district to approve
olans for any outlet for discharge of sewage or other liquid
waste, or for a treatment or disposal works; by O.R.C. Section
6115.17, for the directors, employees, or agents of a sanitary
district to enter.upon lands to make surveys and examinations
to accomplish the necessary preliminary purposes of the distric
or to have access to the works; by O.R.C. Section 6115,23(E),
-------
for a sanitary district: tc make regulations, subject
by Ohio EPA, which prohibit the discharge into sewers of any
liquid or solid wastes deemed detrimental tc the works and
improvements of the district, to enforce its regulations by
mandamus or otherwise, and to recover by civil action net less
than five hundred nor more than one thousand dollars for each
violation•
-by O.R.C. Section 6117,01, for boards of county
commissioners to acquire, construct, maintain, and operate
sewage treatment or disposal works and to make, publish, and
enforce rules for the use of sewers and sewer improvements,
consistent with rules of Ohio EPA, and for the county or
sanitary engineer to enter upon property to make surveys or
examinations for laying out or designing sewers or treatment
works; by O.R.C. Sections 6117.45 and 5117.99, for criminal
fines for making any connection into a sewer or sewage dis-
posal plant without permission of the board or in a manner or
for a use other than as prescribed by the board, or for refusal
to permit inspection by the county sanitary engineer;
-by O.R.C. Sections 6119.01 and 6119.Q6(G), for a
regional water and sewer district to provide for the collection,
treatment, and disposal of waste water within and without the
district by means»of acquiring, constructing, maintaining,
operating, or leasing water resource projects; by O.R.C.
Section 6110. OS, for a regional "water and sewer district, to
-------
irs works and improvements, consistent with rules of Ohio
EFA, and to enforce i_s regulations by mandamus, injunction,
or other legal rs~edy r
-by Section 6 12 1 . 04 (F } , for the Ohio Water
Development: Authority to acquire, construct, maintain,
operate, or lease water development projects ar.d establish
o ~ ^ c
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NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Environmental Protection
Division of Water
401 KAE 5:050. Definitions and General Provisions KPDES Permitting Program
RELATES TO: KRS Chapter 224
PURSUANT TO: KRS 13.082, 224.005, 224.020 224.033(19), (21), (22), (23),
224,034, 224.060.
NECESSITY AND FUNCTION: KRS Chapter 224 authorizes the natural resources
and environmental protection cabinet to issue, continue in effect, revoke, modify, suspend
or deny under such conditions as the cabinet may prescribe, permits to discharge into the
waters of the commonwealth. KRS 224.034 empowers the cabinet io issue federal permits
pursuant to 33. U-S.C. 1342(b) of the Federal Water Pollution Control Act (33 U.S.C.
Section 1251 et seq.). Permits issued pursuant to KRS 224.034 shall be referred to as
KPDES permits. This regulation defines essential terms used in connection with the
following- KPDES regulations: 401 KAR 5:050; 401 KAR 5:055; 4.01 KAR 5:060; 401 KAR
5:065; 401 KAR 5:070; 401 KAR 5:075; 401 KAR 5:080; and 401 KAH 5:085.
Section L. Definitions, Wherever used in the KPDES regulations, unless a different
meaning clearly appears from the context or unless a different meaning1 is stated in a
definition applicable to only a portion of these regulations, the fallowing terms have the
meaning as set forth herein. Terms not further defined in this section have the meaning
given by KRS Chapter 224.005 and regulations promulgated pursuant thereto.
(1) "Administrator" means the Administrator of the United States Environmental
Protection Agency, or an authorized representative.
(2) "Applicable standards and limitations" means all standards and limitations to
which a discharge or a related activity is subject under FTRS 224, and regulations
oromulgotsd pursuant thersic, including i'Jt ~ct li.T.itad V; ^ffZnent limitations, 'vatsr
quality standards, standards of performance, and toric effluent standards.
(3) "Application" means the forms approved by the cabinet, which are equivalent
to the EPA standard NPDES forms, for applying for a KPDES permit, including any
additions, revisions or modifications to the forms.
(4) "Average monthly discharge limitation" means the highest allowable average
of daily discharges over a calendar month, calculated as the sum of all daily discharges
measured during a calendar month divided by the number of daily discharges measured
during that month.
(5) "Average weekly discharge limitation" means the highest allowable average of
daily discharges over a calendar week, calculated as the sum of all daily discharges
measured during a calendar week divided by the number of daily discharges measured
during that week.
(B) "Best management practices (BMPs)" means schedules of activities,
prohibitions of practices, maintenance procedures, and other management* practices to
prevent or reduce the pollution of waters of the commonwealth. BMPs also include
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treatment requirements, operating procedures, practices to control plant sits runoff,
spillage or leaks, sludge or waste disposal, or drainage from raw material storage,
(7) "Continuous discharge" means a discharge which occurs without interruption
throughout the operating hours of the facility, except for infrequent shutdowns for
maintenance, process changes, or otter similar activities.
(8) "CWA" means the Clean Water Act as subsequently amended (33 U.S.C. 1251
et seq.), otherwise known as the Federal Water Pollution Control Act.
(9) "Dally discharge1' means the discharge of a pollutant measured during a
calendar day or any 24-hour period that reasonably represents the calendar day for
purposes of sampling. For pollutants with limitations express&d in units of mass, the daily
discharge is calculated as the total mass of the pollutant discharged over the day. Fsr
pollutants with limitations expressed in other units of measurement, the daily discharge is
calculated as the average measurement of the pollutant over the day.
(10) "Date of program approval" means the effective date of the Administrator's
approval of Kentucky's KPDES regulatory program under Section 402 of CWA.
(LI) direct discharger* means the discharge of a. pollutant into waters of the
Commonwealth when such discharge is not included under the definition of "indirect
discharger",
(12) ^Director" means the secretary of the cabinet, or an authorized
representative. For purposes of permit issuance decisions, the director is the director of
the division of water, of the department for environmental protection.
(13) "Discharge" or "discharge of a pollutant" means any addition of any pollutant
or combination of pollutants to waters of the commonwealth from any point source. This
definition includes, but is not limited to, additions of pollutants into waters of the
commonwealth from: surface runoff which is collected or channelled, by man; discharges
through pipes, sewers or other conveyances whether publicly or'privately owned which do
not lead to a treatment worics; and discharges through pipes, sewers, or other conveyances
leading into privately owned treatment works.
(14) "Discharge Monitoring Report (DB£R)n means the cabinefs form including any
subsequent additions, revisions, or modifications, for the reporting of self-monitoring'
results by permittees.
(IS) "Draft permit*" means a document prepared under 401 KLAU. 5:075, Section 3,
indicating the director's preliminary decision to issue or deny, modify, revoke and reissue,
terminate, or reissue a permit. A notice of intent to terminate a permit, and a notice of
intent to deny a permit, as provided in 401 ELAE. 5:075, Section 2, are types of draft
permits. A denial of a. request ;or .Tiociiicauan, revocation 2T,d reicrusnca, ^7
termination, as provided in 401 KA.R 5:0?S, Section 2 is not a draft permit. A proposed
permit is not a draft permit,
CIS) "Effluent limitation'' means any restriction imposed by the director on
quantities, discharge rates, and concentrations of pollutants which are discharged from
point sources into waters of the commonwealth,
(17) "Effluent limitations guidelines* means a regulation published by the
Administrator under section 304 (b) of CWA (33 U.S.C. Section 1314
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(20) "General permit" means any KPDES permit authorising a category of
discharges under KRS 224 within a geographical area, issued under 401 KA5 5:055.
(21) "Hazardous substance" means any substance designated under 40 CFR Part
116.
(22) "Indirect discharger" means a nondomestic discharger introducing pollutants to
a publicly owned treatment works,
(23) "Kentucky Pollutant Discharge Elimination System (KPDES)" means the
Kentucky program for issuing, modifying, revoking and reissuing, terminating, monitoring
and enforcing permits, and imposing and enforcing pretreatment requirements. The
KPDES regulations are: 401 KAR 5:050; 401 KAR 5:055; 401 KAH 5:060; 401 KAR 5:063;
401 KAR 5:070; 401 KAR 5:075; 401 KAR 5:080 and 401 KAR 5:085.
(24) "Interstate agency" means an agency of which Kentucky and one or more
states is a member established by or under an agreement or compact, or any other agency,
of which Kentucky and one or more other states are members, having substantial powers
or duties pertaining to the control of pollution as determined and approved by the
secretary or administrator under the CWA or KRS 224.
(25) "Major facility1' means any KPDES facility or activity classified as such by the
director in cooperation with the regional administrator; designation as a "major industry,
as set forth in 401 KAR 5:085, Section 2, does not indicate automatic classification as a
major facility.
(26) ''Maximum da,fly discharge limitation" means the highest allowable daily
discharge.
(27) "Municipality4' means a city, district, or other public body created by or under
the Kentucky Revised Statues and having jurisdiction over disposal of sewage, industrial
wastes, or other wastes, or a designated and approved management agency under section
208 of CWA (33 U.S.C. 1288).
(23) "National Pollutant Discharge Elimination System (HPDES)" means the
national program for issuing, modifying, ^revoking and reissuing, terminating, monitoring
and enforcing permits, and imposing and enforcing pretreatment requirements.
(29) "New discharger" means any building, structure, facility, or installation:
(iXa) From which there is or may be a new or additional discharge of pollutants at a
site at which on October 18, 1972 it had never discharged pollutants^ and
(b) Which has never received a finally effective NPDES or KPDES permit for
discharges at that site; and
(c) Which is not a new source.
(2) Tnis definition includes an indirect discharger ^hich e-ammeness discharging'
into waters of the commonwealth. 11 also includes any existing mobile point source that
begins discharging at a location for which it does not have an existing permit.
(30) "New source" means any building, structure, facility, or installation from
which there is or may be a direct or indirect discharge of pollutants, the construction of
which commenced;
(1) After promulgation of EPA's standards of performance or pretreatment
standards which are applicable to such source; or
(2) After proposal of EPA's standards of performance or pretreatroent standards
which are applicable to such source, but only if the federal standards are promulgated
within 120 days of their proposal.
(31) "Owner or operator" means the owner or operator of any facility or activity
subject to regulation under the KPDES program.
(32) "Permit" means an authorization, license, or equivalent control document
issued bv the cabinet or U.S. EPA to implement the reauirements of the KPDES or NPDES
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regulations. Permit does not include any permit which has not yet been the subject of
final agency action, such as a draft permit or a proposed permit,
(33) "Person" means an individual, association, partnership, corporation,
municipality, state or federal agency, or an agent or employee thereof*
(34) Toint source" means any discernible, confined, and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation, vessel, or other
floating craft, from which pollutants are or may be discharged. This term does not
include return flows from irrigated agriculture,
(35) "Pollutant" means as defined in 224.005(28) including filter tick-wash,
munitions, and cellar dirt, except;
(a) Radioactive materials which are regulated under the Atomic Energy Act of
1354, as amended (42 D.S.C. 2011 et seq.);
(b) Sewage from vessels; or
(c) Water, gras, or other material which is injected into a well to facilitate
production of oil or gas, or water derived in association with oil and j^as production and
disposed of in a well, if the well used either to facilitate production or for disposal
purposes is approved by the state or federal agency administering1 the Underground
Injection Control program pursuant to the Safe Drinking Water Act (42 U.S.C. 300f et
seq.) or by the Cabinet pursuant to 401 KAR Chapter 5 the appropriate agency determines
that the injection or disposal will not violate any applicable law or regulation.
(36) Trimary industry category" means any industry category listed in Section .'
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(45) "Sewage from vessels" means human body wastes and the wastes from toilets
and other receptacles intended to receive or retain body wastes that are discharged from
vessels and regulated under section 312 of CWA (33 U.S.C Section 1322),
(46) "Sewage sludge" means the solids, residues, and precipitate separated from or
created in sewage by the unit processes of a publicly owned treatment works. Sewage as
used in this definition means any wastes, including wastes from humans, households,
commercial establishments, industries, and storm water runoff, tbat are discharged to or
otherwise enter a publicly owned treatment works.
(47) "Site" means the land or water area where any facility or activity is physically
located or conducted, Including adjacent land used in connection with the facility or
activity.
(48) Total dissolved solids (YDS)" means the total dissolved (filterable) solids as
determined by use of the method specified in 40 CFR Part 136.
(49) "Toxic pollutant'1 means any pollutant listed as toxic in 401 KAR 5:Q£Q,
Section 5.
(50) "Twenty-four (24) hour composite sample" means not less than twelve (12)
effluent portions collected at regular intervals over a period of twenty-four (24) hours
which are composited in proportion to flow; "Grab sample" means a single effluent portion
which Is not a 24-hour composite sample."
(51) "Underground injection" means a "well injection".
(52) ^ajianes1* means any mechanism or provision under the KPDES regulations
which allows modification to or waiver of the generally applicable effluent limitation
requirements or time deadlines.
(53) "Waters of the commonwealth" means as defined in ERS 224.005(26).
(54) "Well" means a bored, drilled or driven shaft, or a' dug hole, whose depth is
greater than the largest surface dimension.
(55) "TV ell injection11 rrear.5 the subsurface i;n placement of fluids through a bored,
drilled, or driven well; or through a -dug weE, where the depth of the dug well is greater
than the Largest surface dimension.
(56) "Wetlands" means these areas that are inundated or saturated by surface or
groundwater at a" frequency and duration sufficient to support, and that under normal
circumstance do support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar
areas. ,
Section 2. Compatibility with the CWA. The £?DE5 regruations
pursuant to KES 224 are intended to be compatible with the federal regulations adoptee
pursuant to CWA,
Section 3. Conflicting provisioits. The provisions of the KPDES regulations are to
be construed as being compatible with and complimentary to each other. In the event
that any of these regulations are found by a court of competent jurisdiction to be
contradictory, the more stringent provisions shall apply,
Section 4. Severabflity. In the event that any provision of KRS Chapter 224 or any
regulation promulgated pursuant thereto is found to be invalid by a court of competent
jurisdiction, the remaining KPDES regidations shell not be affected or diminished thereby.
Section 5. Abbreviations and acronyms. The follow ing abbreviations and acronyms.
as used throughout the KPDES regulations, shall have the meaning given below:
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(1) "BAT" means best available technology economically achievable;
(2) "ECT" means best conventional pollutant control technology;
(3) "BOD" means biochemical oryg-en demand;
(4) "EFT" means best practicable technology ciirrently available;
(5) "BMPs" means best management practices;
(5) "COD" means chemical oxygen demand;
(7) "CFH" means code of federal regulation;
(8) TDME,® means discharge monitoring report;
(9) ^KAB." means Kentucky Administrative Regulations?
(10) "KPDES" means Kentucicy Pollutant Discharge Elimination Systen;;
(11) "KES" means Kentucky Revised Statute:
(12) "NPDES* means National Pollutant Discharge Elimination System;
(13) TOTVT0 means publicly owned treatment works;
(14) "SIC" means standard industrial classification; and
(15) "TSS" means total suspended solids.
Section 6= Date of applicability. The provisions of this regulation shall become
effective upon the date of program approval.
JACKIE SWIGART, SECRETARY
Recommended for approval by the Kentucky Administrative B-eg-uLations Review
Subcommittee, pursuant to KR5'Chapter 13.087, on May 26r 1983.
Recommendation upheld by the Legislative E,esearch Commission, pursuant to KRS
Chapter 13, on June lf 1983, ...
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NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Environmental Protection
Division of Water
401 KAR 5:055. Scope and Applicability of the KPDES Program,
RELATES TO: SRS Chapter 224
PURSUANT TO: KRS 13.082, 224.033 (19), (21), (22), (23),
224.034, 224.060, 224.994(1), (4).
NECESSITY AND FUNCTION: KRS 224.033(21) provides that the natural resources
and environmental protection cabinet, may require for persons discharging into the waters
of the commonwealth, by regulation, technological levels of treatment and effluent
limitations. KRS 224.034(1) provides that the cabinet may issue federal permits pursuant
to 33 U-S.C. Section 1342(b) of the Federal Water Pollution Control Act (33 U.S.C.
Section 1251 et. seq.) subject to the conditions imposed in 33 U.S.C. Section 1342(b) and
1342Cd), KRS 224.034(1) requires that any exemptions granted in the issuance of such
permits shall be pursuant to 33 U.S.C Section 1311, 1212 and 1326(a). Further KRS
224.034(4) requires that the cabinet shall not impose under any permit issued pursuant to
this section any effluent limitation, monitoring requirement or ether condition which is
more stringent than the effluent limitation, monitoring requirement or other condition
which would have been applicable under the federal regulation if the permit were issued
by the federal government. This regulation contains the scope and applicability of the
KPDES program: including1 specific -inclusions and exclusions; prohibitions; requirements
for general permits; and requirements for disposal into wells, into POTWS and by Land
application.
Section 1. Applicability of the KPDES requirements. The KPDES program requires
permits for the discharge of pollutants from any point source into waters of the
commonwealth. Compliance with the KPDES program requirements constitutes
compliance with the operational permit requirements 01 401 KAfL j;J05, iSecuon J(2) dnc
requirements related to the operational permit,
(1) Specific inclusions. The following are examples of specific categories of point
sources requiring KPDES permits for discharges. These terms are further defined in 401
KAR 5:060, Sections 5 through 12.
(a) Concentrated animal feeding operations;
(b) Concentrated aquatic animal production facilities;
(c) Discharges into aquaculture projects;
(d) Discharges from separate storm sewers; and
(e) SQvicultural point sources.
(2) Specific exclusions. The following discharges do not require KPDES permits:
(a) Any discharge of sewage from vessels, effluent from properly functioning
marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental
to the normal operation of a vesseL This exclusion does not appiy to rubbish, trash,
garbage, or other such materials discharged overboard: nor to other discharges when the
vessel is operating in a capacity other than as a means of transportation such as when
used as an energy or mining facility, a storage facility or a seafood processing facility, or
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when secured to a storage facility or a seafood processing- facility, or when secured in
waters of the commonwealth for the purpose of mineral or oil exploration or development.
(b) Discharges of dredged or fill material into waters of the commonwealth which
are regulated under Section 404 of CWA (33 U.S.C. Section 1314),
(c) The introduction of sewage, industrial wastes, or other pollutants into pubEcly
owned treatment works by indirect discharges. Plans or agreements to switch to this
method of disposal in the future do not relieve dischargers of the oblifation to have and
comply with permits until all discharges of pollutants to waters of the commonwealth a^e
elim mated.
(d) Any discharge in compliance with the instructions of an on-scene coordinator
pursuant to 40 CFR 1510 (The National Oil and Hazardous Substances Pollution Plan) or 33
CFR l53UO(e) (Pollution by Oil and Hazardous Substances) or discharges in compliance
with the state hazardous substance contingency plan issued pursuant to KES 224.877(5).
(e) Any introduction of pollutants from non-point source agricultural and
sHvi cultural activities, including- runoff from orchards, cultivated crops, pastures, range
lands, and forest lands, but not discharges from concentrated animal feeding- operations es
defined in Section 5 of 401 KAR 5:060, discharges from concentrated aquatic animal
production facilities as defined in Section 6 of 401 ZAR 5:060, discharges to aquaculture
projects as defined in Section 7 of 401 KAR SiOSO, and discharges from siivicultura! point
sources as defined in Section 9 of 401 EAB. 5;OSO.
(f) Return flows from irrigated agriculture*
(g) Discharges into a privately owned treatment works, except as the director
may otherwise require under 401 KAR S;065, Section 2(12).
(h) Authorizations by permit or by rule which are prepared to assure that
underground injection will not endanger drinking' water supplies,' pursuant to.the Safe
Drinking Water Act (42 DSC 30Qf et seq.), and which art under a State or federa
Underground injection Control program; and, underground injections and disposal w*Hs
which are permitted by the cabinet pursuant to 401 KAE. Chapter 5.
(i) Discharges which are not regulated by the UJS. EPA under Section 402 of the
Clean Water Act (33 UJS.C. Section 14123.
Section 2. Prohibitions, No permit may be issued by the director: (1) When the
conditions of the permit do not provide for compliance with the applicable requirements
cf KRS 224, or regulations promulgated pursuant thereto;
(2) Whan the regional addisistrator iss objected to Issuance af the permit ir:
writing under the procedures specified in 40 CFR 123.75;
(3) When the imposition of conditions cannot ensure compliance with the
applicable water quality requirements of Kentucky and all affected states;
(4) When, in the judgement of the secretary of the UJS. Army, acting through the
Chief of Engineers, anchorage and navigation in or on any of the waters of the United
States vvould be substantially impaired by the discharge;
(5) For the discharge of any radiological, chemical, or biological warfare agent or
hjgn-level radioactive waste;
(S) For any discharge inconsistent with a watar quality management plan or plan
emencment approved by EPA;
(7) To a new source- or a new if the disekarf e from its construction or
operation will or contribute to the violation of water quality standards. The owner
cr operator of t new source or new discharger proposing- to discharge into a water
segment which not meet Kentucky water quality standards or is not expected to
meet those standards even after the application of the effluent limitations required by the
KPDES regulations for which the cabinet has performed a pollutant load allocation for
the pollutants to be discharged; must demonstrate, before the close of the public
comment period, that:
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(a) There are sufficient remaining pollutant lead allocations to allow for the
discharge: and
(b) The existing dischargers into that segment are subject to schedules of
compliance designed to bring the segment into compliance with Kentucky water quality
Standards.
Section 3. Variance Requests by Noa-POTW1^. A discharger which is not a publicly
owned treatment works (POTW) may request a variance from otherwise applicable
effluent limitations under any of the following statutory or regulatory provisions within
the times specified in this section:
(l) Fundamentally different factors, A request for a variance based on the
presence of "fundamentally different factors" from those on which the effluent
limitations guideline was based shall be made by the close of the public comment period
under Section 5 of 401 KAR 5:075. The request shall explain how the requirements of 401
KAR 5:080, Section 3 have been met.
(2) Non—conventional pollutants, A request for a variance from the BAT
requirements for "non-conventional" pollutants, pursuant to subsection (1) of section 7 of
this regulation because of the economic capability of the owner or operator, or pursuant
to subsection (2) of section 7 of this regulation because of certain environmental
considerations, must be made as follows. A completed request must be submitted no later
than the close of the public comment period under Section 5 of 401 KAR 5:075
demonstrating that the applicable requires en ts of 401 KAR 5:080 have been met.
(3) Innovative technology. An extension under subsection (3) of section 7 of this
regulation from the deadline in section 1 of 401 KAR 5:080 for best available technology
(3AT), based on the use of innovative technology, may be requested no later than the
close of the public comment period under Section 5 of "401 KAR 5:075 for the discharger's^
initial permit requiring compliance with appiicaDle effluent limitations. The request shall
demonstrate that the requirements of 401 KAR 5:080 have been met.
(4) Thermal discharges. A variance under subsection (4) of section 7 of this
regulation for the thermal component of any discharge must be filed with s. timely
application for a permit under 401 KAR 5:060, except that if thermal effluent limitations
are established by EPA or are based on Kentucky water quality standards the request for a
variance may be filed by the close of the public comment period under Section 5 of 401
KAR 5:075.
Section 4. Erpedited variance procedures and time extensions. Notwithstanding the
time requirements Ji Section « 01 ;his regui&ucn, the director may "ctifv ° permit
applicant before a craft permit is issued under Section 3 of 401 KAR 5:075 that the draft
permit will likely contain limitations which are eligible for variances.
(1) In tie notice the director may require the applicant as a condition of
consideration of any potential variance request to submit a request explaining how the
requirements of 401 KAR 5:080 applicable to the variance have been met. The director
may require the submittal within a specified reasonable time after receipt of the notice.
The notice may be sent before the permit application has been submitted. The draft or
final permit may contain the alternative limitations which may become effective upon
final grant of the variance.
(2) A discharger who cannot fue a complete request required under Section 3(2) of
this regulation may request an extension. The extension may be granted or denied at the
discretion of the Director Extensions should be no more than six months in duration.
Section 5. General permits, (1) Coverage. The director may issue a general permit
in accordance with the following:
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(aj Area, The general permit wiH be written to cover a category of discharges
described in the permit under paragraph (b) of this subsection, except those covered by
Individual permits, within a geographic area. The area will correspond to esistirig-
g-eographic or political boundaries, such as:
L • Designated planning areas under Sections 20S and 303 of CWA (33 U.S.C. 12S8
and 1313)}
2. City, county, or state political boundaries;
3. State highway systems^
4, Standard metropolitan statistical areas as defined by the University of
Louisville Urban Studies Center, consistent with the O.S. Office of Management and
Budget;
5. Urbanized areas as designated by the University of Loiiisvilie Urban Studies
Center consistent with the UJs. Bureau of the Census; or
6, Any other appropriate division or combination of boundaries.
(b) Sources. The general permit will be written to regulate, within the area
described in paragraph (a) of this subsection, either;
1. Separate storm sewers; or
2. A category of point sources other than separ&te storm sewers if the sources
all:
a. Involve the same or substantially similar types of operations;
b. Discharge the same types of wastes;
c. Require the same effluent limitations or operating conditions!
d. Require the same or similar monitoring; and
e. In the opinion Of the director, are more appropriately controlled under &
general permit than under individual permits,
(2) AdmisIstratiQEU (a) Geaeril permits may be issued, modified, revoked and
reissued, or terminated in accordance with applicable requirements of 401 KAE SfOTS,
(b) BequMug' an individual permit, 1. The director may require any person
authorized by a feneral permit to apply for and obtain an individual K?DES permit, Any
interested person may petition the director to take action under tins paragraph. Cases
where an individual EPDES permit may be required include the foEowingt
a. The dischargens) is a significant contributor of pollution es determined by the
factors set forth at Section 8(3)(b) of 401 RAF. 5:060;
b. The discharger is not in compliance -vith the conditions of the ~-nersi KPDES
permit;
c. A change has occurred in the availability of demonstrated technology or
practices for the control or abatement of pollutants applicable to the point source;
cL Effluent limitation guidelines are promulgated for point sources covered by
the general. K?DES permit;
e, A Kentucky Water Quality Management Plan containing requirements
applicable to such point sources is. approved; or
f. The requirements of subsection (1) of this section are not met,
2, Any owner or operator authorised by & general permit may request to be
excluded from the coverage of the general permit by applying for an individual permit.
The owner or operator shall-submit an application under 401 KAP. 5:080, Section 1, to the
director with reasons supporting the request. Th« request shell be submitted no later than
ninety (20) after the notice by the cabinet in accordance with 401 5£AE S;07E,
Section 5. The request shall be processed under 401 EAR 5:075. If the reasons cited by
the owner or operator are adequate to support the request, the cabinet may issue an
individual permit
3. " When an individual KPDES permit is issued tc an owner or operator otherwise
subject to a general KPDHS permit, the applicability of the general permit tc the
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individual KPDES permittee is automatically terminated on the effective date of the
individual permit.
4. A permittee, excluded from a general permit solely because he already has an
individual permit, may request that the individual permit be revoked. The permittee shall
then request to be covered by the general permit. U'pon revocation of the individual
permit, the general permit shall apply to the source.
Section 6. Disposal of pollutants into weHs, into POTffs or by land application-
CD The Cabinet may issue permits to control the disposal of pollutants into welLs,
when necessary to protect the public health and welfare and to prevent the pollution-of
ground and surface waters.
(2) When part of a discharger's process wastewater is not being discharged into
waters of the commonwealth because it is disposed into a weU, into a POTW, or by Land
application thereby reducing the flow or level of pollutants being- discharged into waters
of the commonwealth, applicable effluent standards and limitations for the discharge in a
KPDES permit shall be adjusted to reflect the reduced raw waste resulting from such
disposaL Effluent limitations and standards in the permit shall be calculated by one of
the following methods:
(a) If none of the waste from a particular process is discharged into waters of the
commonwealth, and effluent Limitations guidelines provide separate allocation for wastes
from that process, all allocations for the process shall be eliminated from calculation .of
permit effluent limitations or standards.
(b) In all cases other than those described in paragraph (aj of this subsection,
effluent Limitations shall be adjusted by multiplying the effluent limitation derived by
applying effluent Limitation guidelines to- the total waste stream by the amount of
wastewater now to be treated and discharged into waters of the commonwealth, and
dividing the result by the total wastewater flow. Effluent limitations and standards so
calculated may be further adjusted under'401 KAR 5:080, Section 3 to make them more
stringent if discharges to wells, publicly owned treatment works, or by land application
change the character or treatability of the pollutants being discharged to receiving
waters,
This method may be algebraically expressed as:
P=E X N/f
When P is the permit effluent limitation, E is the limitation derived by applying
effluent guidelines to the total waste stream, N is the wastewater flow to be treated and
discharged to waters of the commonwealth end 7 is Lie to Lai wastewater flow.
(3) Subsection (2) of this section shall not apply to the esrtent that promulgated
effluent limitations guidelines:
(a) Control concentrations of pollutants discharged but not mass; or
(b) Specify a different specific technique for adjusting effluent Limitations to
account for well injection, Land application, or disposal into POTWs-
(4) Subsection (2) of this section does not alter a discharger's obligation to meet any
more stringent requirements established under 401 KAK 5:063.
Section 7. Variances available to KPDES applicants. Consistent with KRS
™4.034(1} the variance provisions in this section and in Sections 3 and 4 of 401 KAH 5:080
lists, inclusively, those variances available to KPDES applicants.
CD Economic capability. The director with-the concurrence of ZPA, may modify
the 5AT requirements set out in 401 KA?. 5:OSO, Section 1, for a point source, upon a
snowing by the owner or operator cf that point source, satisfactory to the director that
the modified requirement will:
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(a) Represent the maximum use of technology within the economic capability of
the owner or operator; and,
(b) Result in reasonable further progrsiss toward the elimination of the discharge
of pollutants.
(2) Environmental considerations, (a) The director, with the concurrence of E?A,
may modify the BAT requirement set out in 401 SLAR S:08Q, Section L, for a point source
which does not discharge toxic pollutants identified in Section 5 of 401 KAR 5:080,
conventional pollutants, or the thermal component of that discharge upon a showing by
the owner or operator satisfactory to the director that:
1. The modified requirement will result, at a minimum, in compliance with the
3PT requirement identified in 401 KAR 5:080 or Kentucky water quality standards
whichever is applicable^
2. The modified requirement wDI not result in any additional requirements on any
other point or non-source point; and
3. The modification will not:
lu Interfere with the attainment or maintenance of that w*ter quality which will
assure protection of public water supplies, protection and propagation of a balanced
popularicn of shellfish, fish, and wildlife, and allow recreational activities, in and on the
water; and
b. Result in the discharge of pollutants in quantities which may reasonably be
anticipated to pcse an unacceptable risk to human health or the environment because of
bioaccumulation, persistency in the environment, acute torrity, chronic toxioity,
inducing carcinogenic! try, mutagenicity or teratcgeniciry, or synergistie propensities.
(b) If an owner or operator of'a point source applies for a modification under this
section for acy pollutant, that owner or operator will be eligible to apply for a
modification under subsection I of this section with respect to that pollutant cnjy during
the same time period as he is eligible to apply for a modification under this section,
(3) Innovative technology, (a) The director may establish a date for complying
with the deadline for achieving BAT'set out in section 1 of 401 KAR 5:080 no later than
July 1, 198? if the owner or operator establishes to the satisfaction of the director the
following-:
1. That the existing production capacity of the facility will be replaced with an
innovative production process which will result in an effluent reduction significantly
greater than that required by the limitation otherwise applicable to that facility, and
which moves toward the state's goal cf Eliminating the discharge of an pollutants: or
2. That an innovative control technique vriU be installed which has a substantial
likelihood for enabling the facility to comply with the applicable affluent limitation by
achieving a significantly greater effluent reduction than that required by the applicable
effluent limitation, and which moves toward the state's goal of eliminating the discharge
of all pollutants; or
3. That an innovative system will be installed which h&s the potential for
significantly lower costs than the system which have been determined by the director to
be eccncmicsllv achievable.
(b)' The innovative system must have the potential for industrywide application.
(c) The director may not modify any requirement under this section which applies
to a pollutant on the toxic pollutant list set out at 401 KAR 5:080, Section 5,
(4) Thermal pollution: (a) The director may impose an alternative effluent
limitation for the thermal component of a discharge from a point source If the owner or
operator csn establish to the satisfaction of the director that the original effluent
limitation proposed by the director is more stringent than necessary to assure the
protection and propagation of a balanced indigenous population of shellfish, fish and
:e bod c; water into which the dischare will bft made.
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(b) The alternative effluent limitation imposed by the director upon request by
the owner or operator will take into account the interaction of the thermal component
with other pollutants, and will assure the protection and propagation of a balanced,
indigenous population of shellfish, fish and wildlife in and on that body of water.
Section 8. Variances from categorical pretreatment standards for fundamentally
different factors,
(1) Definition. "Bequester" means an industrial user or a POTW seeking a
variance from the limits specified in a categorical pretreatment standard.
(2) The criteria and standards for evaluating a request for a fun da men tally
different factors variance shall be pursuant to 401 KAE. 5:080, section 3.
{3} Application procedure, (a) Application deadline, L. Requests for a variance
and supporting information must be submitted in writing to the director.
2. In order to be considered, request for variances must be submitted within 180
days after the effective date of the categorical pre treatment standard unless the user has
requested a categorical determination.
3. When the user has requested a categorical determination the user may elect to
await the results cf the cstegory determination before submitting a variance request
under this section. When the user so elects, the user must submit the variance request
within 30 days after a final decision has been made on the categorical determination,
(b) Contents of submission. Written submissions for variance request shall
include:
1. The name and address of the requester;
2. Identification of the interest of the requester which is affected by the
categorical pretreatment standard for which, the variance is requested;
3. Identification cf the POTW currently receiving the waste from the industrial
user for which alternative discharge limits are requested;
4, Identification of the categorical pretreatment standards which are applicable
to the industrial user;
5. A list of each pollutant or pollutant parameter fox which an alternative
discharge limit is sought;
5. The alternative discharge limits proposed by the requester for each pollutant
or pollutant parameter identified in subparagraph 5 of this paragraph;
?. A description of the industrial user's existing water pollution control facilities;
S. A schematic flow representation of the industrial use^s water system
including water supply, process wastewater systems, and points of discnarge; and
9. A statement of facts clearly establishing why the variance request should be
approved, including detailed support data, documentation, and evidence necessary to "fully
evaluate the merits of the request.
(c) Deficient requests. The director will only act on written requests for
variances that contain all of the information required. Requesters who have made
incomplete submissions will be notified by the director that their requests are deficient
and unless the time period is extended, will be given up to 30 days to correct the
deficiency. If the deficiency is not corrected within the time period allowed by the
director, the request for a variance shall be denied.
(c) Public notice. Upon receipt of a complete recuest, the director will provide
notice of receipt, opportunity to review the submission, and opportunity to comment.
1. The public notice will be circulated in a manner designed to inform interested
and potentially interested persons of the request. Procedures for the circulation of public
notice will include mailing notices to:
e.. The PGTW into which the industrial user discharges;
b. Ad joining states whose waters mey be affected; and
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c. Designated CWA Section 2Q8 (32 D.S.C Section 12S8) pLanping- agencies,
federal and state fish, shellfish and wildlife resource agencies; and to any other person cr
group who has requested individual notice, including1 those on appropriate mailing lists.
2. The public notice will provide for a period not less than 30 days following the
date of the public notice during which time interested persons may review the request and
submit their written views on the request,
3, Following the comment period, the director will make a determination on the
request taking into consideration any comments received. Notice of this final decision
will be provided to the requester and all persons who submitted comments on the request.
(e) Review of requests by state. 1. When the director finds that fundamentally
different factors do not exist, the director may deny the request, and notify the requester
of the deni&JL
2. When the director finds that fundamentally different factors do erist the
director will forward the request, with a recommendation that the request be approved, to
the enforcement division director of EPA region IV.
Section 9. Pretreatment, (1) Applicability. (a) This section applies to the
following:
1. Pollutants from non-domestic sources covered by pretreatrnent standards
which are indirectly discharged, transported by truck or rail, or otherwise introduced into
POTWs;
2. POTWs which receive wartewater from sources subject to national
pretreatrnent standards; and
3. Ar.y new or existing source subject to national pretreatment standards.
(b) National pretreatment standards do not apply to sources wtu'cb discharge to a
sewer which is not connected to a POTW treatment plant.
(2) Definitions. The following definitions pertain to indirect dischargers and
POTWs subject to pretreatment standards under the KPDES program, (a) "Approved
POTW pretreatment prograjn" means a program administered by a POTW that meets the
criteria established in subsection (8) of this section and which has been approved by the
director in accordance with subsection (2) of this section,
(b) "Indirect discharge" or "discharge" means the introduction of pollutants into a
POTW from any non-domestic source regulated by the KPDES program,
(c) "Industrial user" or "user" means a source of indirect discharge,
(d) "Interference" means an inhibition or disruption of the POTWS, its treatment
processes or operauons, or its siucge processes, use or disposal which LS a cause of or
significantly contributes to a violation of any requirement of the POTW's KPDES permit,
including an increase in the magnitude or duration of a violation, or to the prevention of
sewage sludge use or disposal.by the POTW in violation of any appliebie regulation. A:;
industrial user significantly contributes to a permit violation or prevention of sludge use
or dispose! whenever the user:
1. Discharges a daily pollutant loading in excess of that allowed by contract with
the POTW or by applicable law;
2. Discharges waste water which substantially differs in nature or constituents
frcrn the user's average discharge; or
3. Knows or has reason to know that its discharge, alone or in conjunction with
discharges from other sources, would result in a POTW permit violation or prevent sewage
siucge use or disposal in accordance with the POTW's approved method of siucge
management,
(e) "National pretreatment standard" means any regulation containing pollutant
discharge limits promulgated by E?A in accordance with section 307 (b) and (c) of the
CWA, (33 C.£,C, Section 1317(b) and (c) which applies to industrial users. This includes
prohibitive ciseharre Limits established pursuant to subsection (4) of this section. •
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(f) "Pass through" means the discharge of pollutants through the POTW into
waters of the commonwealth in quantities or concentrations which are a cause of or
significantly contribute to a violation of any requirement of the POTW's KPDES permit,
including an increase in the magnitude or duration of a violation. An industrial user
significantly contributes to such permit violation when it:
I. Discharges a daily pollutant loading in excess of that allowed by contract with
the POTW or by applicable Law;
2. Discharges waste water which substantially differs, in nature and constituents
from the user's average discharge;
3. Knows or has reason to know that its discharge, alone or in conjunction with
discharges from other sources, would result in a permit violation; or
4. Knows or has reason to know that the POTW is, for any reason, violating its
final effluent limitations in its permit and that such industrial user's discharge either
alone or in conjunction with discharges from other sources, increases the magnitude or
duration of the POTW's violations,
(f) "FOTW treatment plan" means that portion of the POTW which is designed to
provide treatment, including recycling and reclamation of municipal sewage and industrial
waste.
(h) "Pre treatment" means the reduction cf the amount of pollutants, the
elimination of pollutants, or the alteration of the nature of pollutant properties in
wastewater prior to or in lieu of discharging or otherwise introducing such pollutants into
a POTW. The reduction or alteration may be obtained by physical, chemical or biological
processes, process changes or by other means except as prohibited by this section*
(i) Tretreatment requirements" means any- substantive or procedural
require merits related to pretreatrnent, other than a national pre treatment standard,
imposed OR an industrial user.
(3) Local law. Nothing in this regulation is intended to affect any pretreatment
requirements, including any standards or~prohimtior_s, established by local law as long as
the local requirements are not less stringent than any set forth in national pretreatment
standards, or any other requirements or prohibitions established by the cabinet or by EPA.
(4) National pretreatment standards? prohibited discharges, (a) A non-domestic
source introducing pollutants into a POTW shall comply with the general and specific
prohibitions set forth in 40 CFH 403.5.
(b) A POTW developing a pretreatment program pursuant to subsection (?) of this
section shall develop and enforce effluent limits *o implement the prohibitions of
paragraph (a) of this subsection pursuant to 40 CFE 403.5.
(c) A POTW without an approved pretreatrnent prc-gram shall, in cases where
pollutants contributed by users result in interference or pass-through, and such violaticir.
is likely to recur, develop and enforcement specific effluent limits pursuant to 40 CFP.
403.5
(d) If, within thirty (30) days after notice of an interference violation has been
sent by the cabinet to the POTW and to persons who have requested notice, the POT'A'
fails to begin appropriate enforcement action, the cabinet may take appropriate
enforcement action, pursuant to KPvS 224.294 and 224.993.
(e) 40 CFR 403.5 is hereby incorporated by reference, revised as of July 1, 1982,
as published by the Office of the Federal Register, national Archives and Register
Service General Services Administration, and available from the Superintendent cf
Documents, UJ5. Government Printing Office, WashirtFtor., D,C. 20402,
(5) Pretreatment standards: Categoric-sl standards, (a) Ln addition to* the general
prohibitions Ln suosecticn (4) of this section, all indirect dischargers snail comply with
national pre treatment standards promulgated by EPA and codified in 40 CFR Chapter I.
Subcnapter H. Compliance shall be required within the tirr.e specified in the appropriate
suDDart of SubchsDter H.
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(b) Industrial users may request the director to provide written certification on
whether an industrial user falls within a particular subcategory. The director will act
upon that request in accordance with the procedures in 40 CFR 403.H,
(c) Limitations for industrial users win be imposed in accordance with 40 CF?»
403.6 (c) - (e),
(d) 40 CFR Chapter I, Sub-chapter N, and 40 CFR 403,6 are hereby incorporated by
reference, revised as of July 1, 1982, as published by the Office of the Federal Register,
National Archives and Register Service General Services Administration, and available
from the Superintendent of Documents, UJS. Government Printing Office, Washington,
D.C. 20402, Division of Water, Permits Branch, Frankfort, Kentucky,
(6) Re¥ision of categorical pretreatineut standards to reflect POTW removal of
pollutants. This subsection provides the criteria and procedures to be used by a POTW in
revising the pollutant discharge limits specified in categorical pretreatment standards to
reflect removal of pollutants by the POTW.
,(a) Definitions, for the purpose of this subsection: L, "Remove!" means a
reduction in the amount of a pollutant in the POTW's effluent or alteration of the nature
of a pollutant during treatment at the POTW. The reduction or alteration can be obtained
by physical, chemical or biological means ar.d may be the result of specifically designed
POTW capabilities, or it may be Incidental to the operation of the treatment system.
R.emoval does not mean dilution of a pollutant in the PCTW. Ttie demonstration of
removal shall consist of data which reflect the removal achieved by the PCTW for those
specific pollutants of concern included on the list developed pursuant to section 307(a) of
the CWA (33 U.S.C. Section I317(a)). Hach categorical pretreatment standard will specify
whether or not a removal allowance may be granted for indicator or surrogate pollutants
regulated in that standard.
2, "Consistent Removal" means the average of the lowest 50 percent of the
removals measured according to paragraph (d)2. of this subsection. AH sample data
obtained for the measured pollutant, during the time period prescribed in that paragraph
shall be reported and used in computing consistent removal. If a substance is measurable
in the influent but not in the effluent, the effluent level may be assumed to be the limit
cf measurement, and those data may be usa-d by the POTW at its discretion and subject to
approval by the director. If the substance is not measurable in the influent, the data, may
not be used. When the number of samples with concentrations equal to or above the limit
of measurement is between 8 and 12, the average of the lowest 6 removals shall be used.
If there are less than 3 samples «ith concentrations equal to or above the limit of
measurement, the director may approve alternate means for demonstrating consistent
removal. • '
3. "Measurement" refers to the ability of the analytical method or protocol to
quantify as well as identify the presence of th* substance in question.
4, "Overflow" means the intentional or unintentional diversion of flow from the
POTW before the POTW treatment pLsTit.
(b) Revision of categorical pretrtatment standards to reflect POTW pollutant
re.TiCvs-L A PCTW receiving1 wastes from an industrial user to which a categorical
?retreatmer>.t standard applies may, pursuant to this subsection, revise the diseharft
limits for a specific pollutant covered in the eatefcrieal pre treatment standard applicable
to that user. Revisions shall only be made when the POTW demonstrates consistent
removal cf each pollutant for which the discharge limit Ln a categorical pretreatmen:
standard is to be revised at a level which justifies the amount cf revision to the discharge
limit. Li addition, revision of pollutant discharge limits in categorical pretreatment
siari dares by a POTW may only be mace as follows:
1, 'Application. The PCTW shall apply for, and receive authorization from the
director in accordance with subsections (8) and (9);
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2. POTW Pretreat.— ent Program. The POTVv' shall have a pretrestmer.t program
approved in accordance with subsections (7), (8) and (B), However, a POTW may
conditionally revise the discharge limits for • specific pollutants, ever, though a
pre treatment program has not been approved, as follows. These provisions also govern the
issuance of provisional authorizations under subsection (d)2.(g);
a. An industrial user wishing to receive a conditional or provisional revision of
categorical pretreatment standards shall submit to the POTW the information required 'in
subsection (10)(b) 1-7, ercept that the compliance schedule is not required when a
provisional allowance is revested. The submission shall indicate what additional
technology, if any, will be needed- to comply with the categorical pretreatment standards
as revised by the POTW.
b. The POT.W shall compile and submit data demonstrating1 removal in accordance
with the requirements of paragraphs (d) 1 - 7 of this subsection. The POTW shall submit
to the director a removal report which comports with the signatory and certification
requirements of subsection (10) L and m. This report shall contain a certification by any
of the persons specified in subsection (10) L or by an independent engineer, containing the
following statement: "1 have personally examined and am familiar with the information
submitted in the attached document, and I hereby certify under penalty of law that this
information was obtained in accordance with the requirements of 401 EAR 5:055 Section
9(6 }(d). Moreover, based upon my inquiry of those individuals immediately respcrLsible fcr
obtaining the information reported herein. I believe that the submitted information is
true, accurate and complete, I am aware that there are significant penalties for
submitting false information, including the possibility of fine and imprisonment."
c. The POTW shall submit to the director an application for preteetment
program approval meeting the requirements of subsections (7) and (8)(a) or (b) in a timely-
manner, not to exceed the time limitation set forth L". a compliance schedule for
development of £ pretreatment program included in the POTW's KPDES permit.
d. If E POTW grants a conditional or provisional revision and the director
subsequently makes a final determination;" after notice and an opportunity for a hearing,
that the POTW failed to comply with the conditions in paragraphs (b)2. a. or b. of this
Euosection, or that its sludge use or disposal practices are not in compliance with the
provisions of paragraph (b)4 of this subsection, the revision shall be terminated by the
director and ail industrial users to whom the revised discharge limits had been applied
shall achieve compliance with the applicable categorical pretreatment standard within a
reasonable time, not to exceed the period of time prescribed in the applicable categorical
pre treatment standard as specified 27 che director. However, the revision will not be
terminated when the POTW has not made a timely application for program approval if the
POTW has made demonstrable progress towards and has demonstrated and continues to
demonstrate an intention tc submit an approvabie pretreatment program as expeditious:1/
as possible within an additional period of time, not to erceed one year, established by the
director.
e. If a PCTW grants a conditional or provisional revision and the POTW or
director subsequently makes e final determination after notice and an opportunity for a
hearing, that the industrial user failed to comply with conditions in paragraph (b) 1. d. of
this subsection., including in the case of a conditional revision, the dates specified in the
compliance schedule required by subsection (10(b)7., the revision shall be terminated by
tne FCTW or the director for the noncomplying industrial user and each noncompiying
industrial user to whom the revised discharge limits had been applied shall achieve
compliance with the aopiicaDie categorical pretreatment standard within thjs time period
specified in the; standard. The revision will not be terminated when a violation of the
provisions c: this sur-paragraph results from causes entirely outside the control of the
incustrial user or the incustrial 'user has demonstrated substantial corncliance.
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f. The POTW shall submit to the director by December 31 of each year the name
and address of each industrial user that has received a conditionally or provisionally
revised discharge limit. If the revised discharge limit is revoked, the POTW shell submit
the information in paragraph (b) 2. a. to the director
3, Compensation for overflow, POTWs which at least once annually overflew
untreated waste water to receiving waters may claim consistent removal of a pollutant
only by complying with either subparagraph a, or b. below. However, this paragraph will
not apply ween zfi industrial user can demonstrate that overflow does not occur between
the industrial user and the POTW treatmer.t plant;
a. Consistent removal may be claimed if the industrial user provides containment
or otherwise ceases or reduces discharges from the regulated processes which contain the
pollutant for"' which an allowance is requested during ail circumstances in which an
overflow event can reasonably be expected to occur at the POTW or at a sewer to which
the industrial user is connected. D is charges shall cease or be reduced, or pretreatrnent
shall be increased, to the ertent necessary to compensate for the removal not being
provided by the POTW, Allowances under this provision will only be granted when the
POTW submits to the director evidence that:
L All industrial users to which the POTW proposes to £poly this provision have
demonstrated the ability to contain or otherwise cease or reduce., d"aring circumstances in
which an overflow event can reasonably be expected to occur, discharges from the
regulatd processes which contain pollutants for which an ailower.ce is requested;
ii. The POTW has identified cireurr.stances in which an overflow event cm
reasonably be expected to occur, and has a notification or other viable plan to insure thet
industriEl users will learn of an impending overflow in sufficient time to contain, cease or
reduce discharging to prevent untreated overflows from occurring. The POTW shall also
demonstrate that it wiU monitor and verify the data required in parsgTEph (b)3, a. iiL to
insure that industrial users are containing, esssing or reducing cperations curing POTW
system overflow; and . • • - - ™"'
iii. AJI industrial users to which the POTW proposes to apply this provision have
demonstrated the ability and commitment to collect and make available upon request by
the POTW, director or regional administrator daily flow reports or other data sufficient to
demonstrate that all discharges from regulated processes containing1 the pollutant for
which the allowance is requested were contained, reduced or otherwise ceased, as
appropriate, curing eH circumstances in which an overflow event was reasonably expected
to occur, or
b.i. Consistent removal may be claimed if reduced pursuant to the following
ecuatian:
rc = ."n, ~ 87SO-Z
8760
Where:
rnl ~ POTW's consistent removal rate for that pollutant &s established under
pej.-agrs.phs (a) 1. and (c) 2. of this stiDsection
rc = remove] corrected by the overflow factor
Z - hours per year that overflow occurred between the Lndustriai liser and the POTW
treatment plant, the hours either to be shown in the FOTW's current KPDES permit
application or the hours, as demonstrated by verifiable techniques, that a particular
industrial user's cischfiLTge overflows between the industrial user and the POTW treatment
~- ^ p t~ T
r "-1' H ,
ii. After July 1, 1SS3? consistent removal may be claimed only when efforts to
correct the conditions resulting in untreated discharges bv the POTW are underway ir.
f- c t c r can c e wi th Lh e poli cy an d p r oc ec ur es set f on th in r F ?. M ? 5- 3 4 " (? ~ ogTarr;. G ui G ane e
••'sm; ran cum - SI) publisnec on Dficerr.Der 16, 1S7S bv H?A Office of Water Program
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Operations (WH-546). Previsions to discharge limits in categories! pretreatment stancarcs
may no: be made when efforts hsve not been committed to by the POTW to minimize
pollution from overflows. At a minimum, by July 1, 1983, the POTW shall have completed
the analysis required by PRM 75-34 and be making an effort to implement the plan.
iii' IT, by July'1, 1982, a POTW has begun the PP.M 75-34 analysis but due to
circumstances beyond its control has not completed it, consistent removal, subject to the
approval of the director may continue to be claimed according to the formula in
paragraph (b)3, b. i. as long as the POTW acts in a timely fashion to complete the analysis
and makes an effort to implement the non-structural cost-effective measures identified
by the analysis; and as long as the POTW has expressed its willingness to apply, after
completing the analysis, for a construction grant necessary to implement any other ccst-
effective overflow controls identified in the analysis should federal funds become
available, so applies for such funds, and proceeds with the required construction in an
expeditious manner. In addition, consistent removal may, subject to the approval of the
director, continue to be claimed according to the formula in paragraph (b) 3. b. i. when
the POTW has completed and the director has accepted the analysis required by FRM 73-
34, and the POTW has requested inclusion in its KPDES permit of an acceptable
compliance schedule providing for timely implementation of cost-effective measures
identified in the analysis. In consider ing what it timely implementation, the director will
consider the availability of funds, cost of control measures and seriousness of the water
quality problem.
4. Compliance with applicable sludge requirements, A revision shall not
contribute to the POTW's Lnability to comply with its KPDES permit or with, any
applicable statutes or regulations pertaining to sludge management.
(c) POTW application for authorization to revise discharge limits.
1. An applies Lien for authorization to revise discharge limits for industrial users
who are or in the future rr.ay be subject to categorical pretreatment standards, or
approval cf discharge limits conditionally or provisionally revised for industrial users by
the POTW snail be submit tec by the PCTW'to the director.
2. A POTW may submit an application no more than once per year for:
a, any categorical pretreatment standard promulgated in the prior IS months;
b. any new or mocifiec facilities or production changes resulting in the discharge
of pollutants which were not previously discharged and which are subject to promulgated
categorical standards; or
c. any significant increase in removal efficiency attributable to specific
identifiable circumstances or corrective measures, such as improvements in operation and
maintenance practices, new treatment or treatment capacitv, or a significant change in
the influent to the ?CTW treatment plant.
3. The director may, however, elect not to review the application upon receipt.
in which case the POTWs conditionally or provisionally revised discharge limits will
remain in effect until re vie wee by the director. This review may occur at any time in
accordance with the procedures of subsection (9), but in no event kter than the time of
any pretreatment program approval or any KPDLS permit reissuance thereafter.
4. Lf the consistent removal claimed is based on an anaivtical technique other
than the technique specified for the applicable categorical pretreatment standard, the
director may require the -?CTW perform additional analyses.
(d) Contents of application to revise discharge limits. R.ecuests for authorization
to revise discharge limits in categorical pretreatment standarcs shall De supported by the
following information: •
1, List cf Pollutants. The PCTW shall submit a list of pollutants for whicr;
discharge limit revisions are ^r
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2, consistent Removal Data. The '?CTW shell submit influent tine effluent
operational data demonstrating consistent removal, or other information provided for in
paragraph (a)2. of this subsection which demonstrates consistent removal of the pollutants
for wirier: discharge limit revisions are proposed. This cats shall meet the following
requirements:
a. Representative Data.: Seasonal- The data shell be representative of yearly and
seasonal conditions to which the POTW is subjected for each pollutant for which a
discharge limit region is proposed.
b. H-epresejiLative Data: Quality and Quantity. The data shall be representative
of the Quality and quantity of normal effluent and influent flow if that data car. be
obtained. If such data ars unobtainable, alternate data or information may be presented
for approval to demonstrate consistent removal as provided for in paragraph (a) 2 of this
.subsection.
c. Sampling Procedures: Composite,
i. The influent and effluent operational data shall be obtained through 24-hour
flow-proportional composite samples. Sampling may be done manually or automatically,
end discretely cr continuously. For discrete sampling, at least L£ aUcuots shall be
composited. Discrete sampling may be flow-proportioned either by varying- the time
interval between each aliquot or the volume of each aliquot. All composites must be
flow-proportional to either stream flow at time of collection of influent aiicuot or to the
total influent flow since the previous influent aliquot. Volatile pclltitant alicuots must be
coitibi:ied in the laboratory immediately before analysis.
ii. Twelve samples shall be taken at approximately equal intervals throughout one
full year. Sampling must be evenly distributed over the days of the weak so as to include
non-workdays as well as workdays. Lf the director determines that this schedule will not
be most representative of the actual operation of the POTW treatment plant, an
£,Lternat:'ve sampling schedule wjll be approved,
i:_L Upon the director's concurrence, a ?CTW may utilise an histories! data base
r. massed prior to the effective cate of this subsection provided that such data otherwise
:~.eet the requirements of this SUD paragraph. Ln order for the historical data base to be
Lpprovec it must prese.it a statistically valid description of daily, weekly and seasonal
sewage treatment plant loading"? and performance for at least one yeer.
iv. Effluent sample collection need not b* delayed to compensate for hydraulic
attention unless the POTW elects to induce detention time, compensation or unless the
CLTector ^ecuir~s detention time compensation. The director mav recuire that eacr
affluent sample be t^Lken apprcsi mutely one detention time Latsr than the correspond:."?
influent sample when failure to do so would result in an unrepresentative portray si of
£. cruel POTW operation. The detention period is to be based en a 24-hour average daily
flow value. The average daily How use-c will be based upon the average of the daily Hows
during the same month of the previous year.
d. Sampling Procedures: Grab. When composite sampling is not an appropriate
sampling is no; an appropriate sampling technique, grab samples shall be tax en to obtain
'r_i,iu£.r",i snc £ffljcnt oo^rational data. Ool^ectjor'j cf influent ^"^b s^_mDie^ should oreceec
.•.icilectiers cf eiTiuent samples by approxjrnetely one detention period. The detention
"•£.~iod is to be based on a "4-hour average daily flow value. The averace daily flow used
will be based' uDcrj the average cf the c'ailv flows c urine: the same month of the previous
•. ^> » y
yiar. Grai- samples will be required., for example, when the parameters being evaluated
;.re those, such as cyanide and phenol, which rr.ay not be held for any extended period
-•J^QCI_T_C& Q^" b i ciOf"" c E_^ i? h e *r i ^ si o" ""^ r \* ^ i ^ c_I irt^^actior^ ^hi^^1
o_ection anc £...ect tne results. .-.. ™ac sarnpie :s an Lic;vicuai sajnpie co^eiteo. over £
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e. Analytical methods. Sampling ar,d an £.neiyr;s of these samples sh
performed in accordance with the techniques prescribed in 40 CFH Part 135. When 40
C??- Part 126 does not contain sampling or analytical techniques for the pollutant in
cues tier-, or when the director, with the concurrence of the adrr.inist-Ftcr, determines
that the Part I2S sampling and analytical techniques are inappropriate for the pollutant in
question, sampling and analysis shall be performed using validated analytical methods or
any other applicable sampling end analytical procedures, including procedures suggest ec
by the ?OTW or other parties, approved by the director.
L Calculation of removal. All data shall be submitted to the director. Removal
for a specific pollutant shall be determined either, for each sample, by measuring the
difference between the concentrations of the pollutant In the influent arid effluent of the
POTW and expressing the difference as a percent of the influent concentration, or, when
such data cannot be obtained, removal may be demonstrated using other data or
procedures snojeet to concurrence by the director.
g. Exception to sampling c'sta requirement: provisional removal demonstration.
For pollutants which are not currently being discharged, application may be made by the
POTW for provisional authorization to revise the applicable categorical pretreatrner.t
standard prior to initial discharge of the pollutant.. Consistent removal may be based
provisionally on cat£ from treatabiiiry studies cr demonstrated removal at other
treatment facilities when the cualitv and cuantitv of influent are similar. In e sic '-listing
and ap pi ping for provisional removal allowances, the PCTW shall comply with the
provision of paragraphs \b)l - 4 of this subsection. Within 18 months after the
commencement cf discharge cf the pollutants in question, consistent removal shall be
demonstrated.
3. List of industrial subcstegories. The PCTW shall submit a list of the industrial
sub categories for which discharge limits in categorical pretreatment standards will be
revised, including- the number cf industrial users in each su'-category and an identification
of which cf the pollutants on the list are discharged by each Subcstesrory.
4, Calculation or revised discharge Limits. The PCTW snail submit proposed
revised discharge limits for each cf the succatercries cf industrial users caiculaiec in the
cowin?
a. The Dropcsed re%*ised dischsrt*e limit for a specified pollutant snail bs derived
bv use cf tne fcilcwinj" fcrrnular
wnere:
x = pollutant cisc.hart~e limit specified in the a^Dlicarjle cste^crical pretreatment
standard1
r = POTWs consistent removal rate fcr that pollutant ELS established '-tind-er
paragraphs (a)2., (c)CM and if appropriate, (b)3. b. L of this subsection, (percentage
expressed as a decimal)
y = revised discharge limit for the specified pollutant (erpressed in same units as x)
b. In calculating revised discharge limits, the revision shall be applied equally to
all existing and new industrial users in an industrial subcategory subject tc categorical
t 5*3tapldaJThcs wruch discnajrr's that Dollu*a-rt to the
5. Data on sludge char set eristics. The PCTW shall submit data showing the
concentrations and amounts in the ?07'v:s siucee of the pollutants for which 'discharge
limit revisions are proz>csed and for which £?A, the director or municipality have
ublished siudr= disposal cr use criteria alicable to the PCTW's .current metncd cf
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a. The data snail be obtained thrcueh a composite sample taken during" the same
rumpling periods selected to measure consistent POTW removals in accordance with the
requirements of paragraph (d}2 of this subsection. Each composite sample shall contain a
minimum of 12 discrete samples t,?J;en at equal time intervals over a 24 hour period.,
When a composite sample is not en appropriate sampling* technique, grab samples shall be
taken,
b. Sampling1 and analysis shall be performed in accordance with the sampling and
Er.slytical techniques described previously in paragraph (d)2e, of this subsection,
5. Description of sludge management the POTW shall submit a specific
description of the POTW's current methods of use or disposal of its sludge and data
demonstrating' that the currant slu rig's use or disposal methods comply and will continue to
comply wiuj the requirements of paragraph (b)4. of this subsection.
1. Certification statement. The POTW shall submit the certification statement
required by parwrrsLph Cb)2.b. of this subsection stating that the pollutant removals and
£-ssociated revised dischELrsred limits have been or will be calculated in accordance with
this section and any gnideJines issued by EPA under Section 304(g) cf the CIV A (23 UJLC
Section 13I4(g)).
(c-.} Procedure for authorizing modification of standards. 1. Application for
i.uthoncaticn to revise national presentment stand arcs shall comply with subsection (85
r,nd paragraphs (c) and (d) of this subsection.. Kotice, public comment, and review by the
director will comely with subsection (9).
2. A POTW which has received a construction grant from funds authorized for
fjiy fiscal year beginning after September 30, 197S, will only be considered for
euthoriisticn to modify national s tan cards after it has completed the analysis required by
section 201(g)(5) of the CWA (33 U.S.C. Section 1238(g)(S) and demonstrated that
modification of the discharjr* limits in national standards will not preclude the use sf
innovative or alternative technology. In addition, when sludge disposal or tr&atmeat
tsdhnoicsry is cr will be acquired or constructed with construction grant funds, POTWs
insuid r-fer to 40 C~?. 3£.9:7(d)(6/ and Appendix A to determine the funding1 eligibility of
^ ^^Kps -* ; ™ p, ^, T <-* n c^aP of" c*n r*H t* r*i ** j£ «? '* P"* p^"*"^ tn *hii*t," ?> W "'H* ^,K*-^ i <*t*-i «^ ^t« « * thf*
*> . *. > ( W Si -------- ^- ^- v W , ^ i i ' -'--•---•- t G I* *2 M *— « i t—ife * i I S_- dm « * * W^ W ^* J-W ^WW*4^ *L*fc»»i3 * W 4 1.^ W4 Q, fc ifci I l_
lime of ?OTW pretreatmcnt program approval cr FIPCES permit reissuance thereafter,
u:tncr;z;e the POTW to revise industrial user discharge limits, consistent with the
r revisions cf this subsection.
•i. An industrid. user or other interested party may £5.s:st the PCTW in preparuts:
r.ti,^ the Lnfcrmaticn necessar to al for £Uthcrir.aticn tc revise cateorica:
(f) Continuation and withdrawal of authorisation. 1. Monitoring and reporting of
c insistent removal. Fcllowinr authorisation to revise the discharge limits in
pre treatment standards, the POTW shell continue to monitor and report on, at frequencies
and over intervals specified by the director, with the concurrence of the regional
(• c.minisrretor, but in no case less thai"; two time per year, the ?GTW!s removal capabilities
for =11 poilntant^ fcr which authority to revise the standards was granted. Monitoring and
r1;- porting shall be in accordance with subsection (10)(:) and (j) pertaining to pcuutar,:
'. ^ m ov £j. c s o £. o i-^i t v r£pcruS«
2^ H.€"^svaiu£tion cf revisions, ADDrcvsi of Euthoritrv to revise pretreatinent
"t=ndarcs will be re— eramL-.sd whenever the PCTWs KPDES permit is reissued, unless the
-""'rector, with the eer.currer.ee cf the rerionai edrninistrator determines the need to re=
r tc maintain e remcval Lilowence, the ?CTW sijaii comply
method cf siudr*; use cr disposal. IT. sedition, where overflows cf untreated
tne ?GTW continue to cccu:', tr.e director, w:th the concurrence of th-e regional
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administrator, rr.ay condition continued authorization to revise discharge limits upon the
POTWs performing additional analysis and,'or im pie:men ting additional control measures
as is consistent with EPA policy or, ?OTW overflows,
3, Inclusion in POTW permit. Once authority to revise discharge limits for a
specified pollutant Is grantee, the revised discharge limits for industrial users of the
system as well as the consistent remove! cocumen ted by the PQTW for that pollutant anc
the ether requirements of paragraph (b) of this subsection, shall be included in the PTOW's
EPDES perrr.it upon the earliest re issuance or modification, at or following- program
arorovel, EJIC shell became enforceable requirements of the POTWs KPDES permit.
4. Modification cr withdrawal of revised limits, a. Notice to POTW. The director
shall notify the POTW if, on the basis cf pollutant removal capability reports received
pursuant to paragraph (f}I. cf this subsection or other information available to it. the
director determines:
i. that one or more cf the discharge limit revisions made by the PCTW, cr the
POTW itself, no longer meets the requirements cf this subsection, or
ii. that such discharge limit revisions are causing cr significantly contributing to
a violation of any conditions or limits contained in the POTWs KPDES permit. A revised
ciscr.ETfe limit is significantly contributing- to E violation of the POTVrs permit if it
satisfies the definitions set forth in subsection (2)(c'i or Cf),
b. Corrective action. If ar>Drcoriaie corrective action is not taker, within e
reaso-nEiuo time, not to exceed SO cays unless the PCTW or the effected industrial users
cerr.oriStrate that a ioncer time Deri DC is reascneilv necessary to undertake the
pwprot^riste corrective action the director shall father withdraw such cischs~r"«re limits or
r e cuire rr> vdif i c a ti cns in the revrsed dischante lirnitsv
c. Public notice of withdrawal or modification. The director will not withdraw or
modify revised discharge limits unless it shall first have notified the POTW and ail
industrial users to whom revised discharge limits have beer, applied, and mace public, in
writing, the reasons for withdrawal cr modification, and er. opportunity is provided for a
heari". rollcwirx notice and ^•ithdrE.wai or mc-dificEtion. all indrjstrial users to whom
revised discharge limits had been ap-plied, shall be subject to the modified ciscnsrre limits
or the ciscnar^e limits prescribed in the ar>plic£.bie catstrorical pretreatment stsudards, as
appropris-te, and shall achieve cornpliar.ee with those limits within a reasonable time not
to exceed the period of time prescribed in the applicable categorical pretreatment
standard as TSV bs sn'ec^fieMii b1^' the cirp'rtQr
(7) POTTT pretreatment pra—ann ceveio-pceat by PCrTl?. (a) PCTVTs required to
cevelor a r>retreatment ^rcrram, ,4-r.r PCT'v, .;r comcintticn of PCT*rVs operated by the
same authority. wrJ: a total cencm ;lov,r -rTeater tr.en 5 million fElions per day (mgc) and
recsi\"in^ from industrial users poilutants which pass thrrucn or interfere with the
operatic" cf the ?GTW cr are otherwise subject to pretrsatment standards shall be
recuored is establish e POTW pre treatment procrEm, Tne di~ector mey r ecu ire that e
FOTW with £ cesirr. Cow of 5 mgd or less develop a POTW pre treatment program if it is
found that the nature or volume cf the ir.c us trial influent, treatment process upsets,
violations of POTW effrjer.t limitsticns, ccntamiiaticn of rnunicipEi siud^e, or other
c*"cu*^1 *-tijises so warrant. In sedition a POTW ce-sirin^ to rnocifv cste^oricai
pretreatme.it star.dsrds for pollutants removed by the PCTW pursuant to s-aDseotion (6) of
this section shsll nave an asDrcved ^re'treatment ^rosrrsm pricr to obtaining final approval
cf E removal illcwar-ce, unless ccnciticnal £."Droval cf £ removal allowance is grsntec by
t,L~i c di" s i ic r rj :^TTJ an t \z su bse c :i c n ', S) cf this sec ti c n.
(b) Deadline for trorram az-brcvaL A PCT'V which meets the criteria cf this
rubsec::cr. will receive icrrcval cf a PO~Vi' rre:r»£tment prc'~am no later «thar; 2 years
after th= reissu£r;re o" modifies".izr. cf its eiiiEtir," perrr.it but in no case later than July 1.
•Of!
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(c) In recreation of approved programs in permits. A FCTW may develop en
i.r^rcvailc PCT'V ore treatment program any time before the time limit set forth in
r-irs.^rasn (b) of this subsection. The POTW'S" XPDES permit will be reissued or modified
Is incorporate the approved pro-gram conditions as enforceable conditions cf the permit.
(c) Incorporation of compliance schedules in permits. If the PGTW does not have
::.n approved pretreatment program at the time the POTVTs eristiag" permit is reissued or
modified, the reissued or modified permit will contain the shortest r-ssor.able compliance
schedule, not to exceed three years of July 1, 1983, whichever is sooner, for the approval
c-f the lerai autJiont?, procedures and funding" required by paragraph (f) of this subsection,
(e) Cause for reissu-anee er modification cf permits. The director may modify er
rsvoke and reissue a PQTWTs permit in order to:
1. Put the POTW on a compliance schedule for the develop.merit of a PQTW
pretreatment program when the addition of pollutants into e POTW by an industrial user
or combine tier; cf incus trial users presents a substantial hazard to the functioning" of the
T-element works, quality of the receiving waters, human health, or the environment;
2, Coordir^te the L-^utnce of a CWA section 201 C3 UJS.C. Section 1231}
•."'irnrtrvcticn grant with the Incorporation into £ per~.it of £ compliance schedule for
?CTW prttr£=t:r,ent prc-grsjn;
2, LnccrpcrLte EJI approved ?CTW'prstref,trnent procrrarr. in the PCTV?' pern~.it; cr
4. incorporate £ compliance schedule for the ceveiopzaent of a POTW
^retreatment proera~ in the PCTW permit.
(f) ?OTW pretreatment prcgra:n requirements. A POTW prerreatment program
.'.hall .T.est the following requirements:
1. Lecsl authority. The POTW shell operate pursuant to enforceable legal
.•-L'thcrily, vhich euthoric&s cr enables the POTTA* to apply £nc to enforce the requirements
:.-f this se-cticru The euthcriry rr.Ef bs con taine-d in a starute, orcinsnc^ or series of
contracts cr join I pow.ers tgreements which the PCTW is authorised to enact, enter into
••-," ;~,pie~:ent, tr.c wraeh £i'6 ^L'thorizcc by i£.vv. At £ m:r.ir3un, this Iej~!;l authority snail
-.^KI^ -*-h#5 o^^rw *^'
l-.-Cl^^iC ^Ife i W 4. It l^t,.
f_ Der.y or condition new cr iricre£Sed contributions cf pollutants, or chsjires in
'...•:- nLrure of po!lut£rits, to the PCTW by Industrial users when such contributions C-c not
;:.c&t ap-pljeiuie pretreatment stfijscares f.nd requirements or when such contributions
would cause the PCTVi" tc vie Late its permit;
b. Rscuirc corr,'~]j^,j'iC£ with tODiicsils crctrsE,tm£nt stsjids-rcs r.ntj rscuirsmsnts
c. ContrcL, 'Jiroujrh pc.rrr.it, ccritrr, ct, order or rirr.ilar means, tiie ccr.rributior. to
'..;;e PCTW b>y each industriiJ. user to entire compllRnce vith Lppiicst^e prt treatment
•t'.jriCLris £j;c recuii'ernents;
c. P-ecuirt the deveicprnent of a ccmplicLRec schedule by es.cs rncustriai user for
",.,:, e LnstaJ-lation cf teehnclc>jy required to meet epplicabJe prc treatment stancarcs and
-.-.quirements; inducing: but not limited to the reports required in suisection (10) of this
e, P.oquirc the submission cf i'".. notices EJK stLf- monitoring reports from
:.;Justr:sJ u'^ers £_: £_"e riece;;s^j"' to ££Ser.s £jid a£~ure comolisj'.C'S by industria.! users with
: •:; tr e a : rn e r. t st£,r, d ar cs a;i c re q-uir e m en ts;
f. Carry cut ail inspection, surveillance and monitoring; procedures necessary ts
Eepresent£i:ve$ cf Lhe PCTW sh^II be £:Jt^or:3ec to enter eir?* premises of any
£^ us cr in w rti cr, £ d^ s crj £jrr"G sc urc 6 or tr £ — i rr. GH t SYS t s rn is IDC 3 1 &d or in wliicn
£* "" 6 *** r"^**' J !**"*; tf to D ^ \f C, *^% t LLH O €« ** !TL1 !^ 5 ^3 C f* **** *** ' "* 2- % O T tT" IS S^CtrDC t O H~*^ S IIT ^ CO Hi D ilfiJfl C 6
r « rv rr*iL*I, DS L, t ICES* £x™t.snSiV £. £L£ tr. *3 s-'juncn TV
-------
o;-
?e bv £.nv industrial user v/it.j anv
reatment standard and recuirement. A PC-TV/ shall be able to seek injunctive reiie:
ncnccmpiiance by industrial users with pretreatmer.t standards and recuirements. A
rOTVi' shall seek and assess civil and crimineJ penalties, as authorised by law. A POTVr
mav enter into contracts with industrial users to assure compliance by industrial users
with pretreatment standards and reauirements. A contract may provide for liquidates
ct.mages for violation of prttreatment standards and requirements and may include an
agreement by the industrial user to submit to the remedy cf specific performance for
breach cf contract:
h. Pretreatment recuirements enforced through the remedies set forth in
rubparEETaph g. shall include but not be limited to, the duty tc allow or carry cut
inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the
PCTVi'; cr any reporting requirements inpcsed by the POTYt or this section. The POTW
shall have authority and procedures to halt or prevent any discharge of pollutants to the
FGT'iY which reasonably appears to present an imminent daneer to the health or welfare
of persons. The ?CTT-V shall also have authority and procedures tc halt or prevent any
discharge to the FOTW which presents or may present danger to the environment or which
threatens to interfere with the operation of the POTW. The director shall have authority
i users when the POTVi' has acted tc
ht direc'C1** fines to be Li^stifficienti and
i. Comply with the confidentiality recuirements set forth in subsection (11}.
?.. Procedures. The FCTVr shall develop and implement procedures to ensure
compliance with the requirements cf a pre treatment program. At a mini cum, these
PCT'T pre —'eatrr.ent program. Ajnv corn Dilation, Lnd-e^ cr in venters* of industrial users
made under this pararrai:'" shall be rr.cds £',railat;i(i to the director upon rsouest:
b o
d. Heceive and ar.£lvz>:- self -men: tor ins" resorts and other ~otices submitted by
this section.
request;
f. Lnv e; t: ra t £ instances of noncomDiiance with pre treatment standards and
requirements, as LT.cicate-d in the reports and notices recuired by subsection (10) of this
section, cr indicate oy analysis, inspection, and Surveillance ectivities, Sam Die ta>:ing and
analysis and the collecticr, cf c-Lher infrrmatior, shall be performed vr.tb sufficient care to
.' leart ar.nusiJ.v ;.rcvidir:g public notificaticri, in the
E. ;r "• „ j c a.". s ~rc. tr^^trr, ent star, ^arcs c\ ctr.cr "rstrts.'. ment recuirements. Fcr ths Durt^oses
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'.vciive month period; >r.;hic.h involves a failure to accurately report nonccmpLiance: cr
••.'.'i'.i'.;.''. rsru.ited in the ?OTW txercisinr its err, errancy author: rv.
2. Fundir.r;. The POT'A' shall have sufficient resources anc qualified personnel to
car:"' cut £,11 rtcuired authorities and procedures. In some limited cir^ur: stances, funding
hjid oersoiinel mav be delayed bv the director when the PCT'V Jia.s adequate legal
.".ulhcritv and procedures to carry out the pretreatment program requirements anc a
Limited aspect of the program does not need to be implemented immediately.
(£) PCTfV pretre-£t~2e3t prorrar-iE and authoris£.tioa to rerise pretre&trae^t
1'tandi^d;: su b m i,?-s: o n for approve!.
(a) Vr'ho approves program. A PCT'V requesting approval cf a PCTW pretreatment
pr:-t7ram shall develop a program description which includes the information set forth in
paracraphs (b/I through 4 of this section. This description shall be submitted to the
director, who will make e, determination en the request fcr program approval Li
.-.ccordance v/ith the procedure described in subsection (9).
Ct) Contents of POTW pre~r.~ submission,
1. TliG pro£T£jm sub.T:IT";.en shr.1..' cor;tali e. stjr.terner.t from the city attorney or a
rirv officici fiCtinr in £ cozn^ejT.bic ca^:;icir.', cr the tttornfcv for tl'iosjE POT'Vs which have
'.:. :dc;'j.':::ider,t ier'al connsej., that the PCTV/ has authoritr acecuste to CJLTTV cut the
*'C'' ri. ~^ ^ d osc ^' b^'^' IT1 ^-Uirsr-o t2 or (7\ ^"bis r"t" t ^ m en * snallj
a* I c e n tif T tl1^ ^ ^ r c v~is i on c ^ th e I er* al £ u th o r 1 trv un c cr subs^c ti en (7 ^ ^ ^ 1 w m ch
;-. -oviduo the basis fcr each procedure under subsection (7)(f)2;
b. Identify the manner Li v.'hich the ?OTW w'ill implement the pro~sjn
." c-cui." f.rrsr.ts set forth ui subscictior. (7) including the rr.tajis bv which pretreatment
;';indard.s ^-iLl be applied to Lridivvdusi industrial users; and
c. Identify hov,' the POTVv L'ltsc.is to ensure compliance rrith pretreatment
•na?'cii-":rls and rt^TLii^^mcnts F nc! *c° ^Lnr"o™c^ tjhcTi 1^ the ^vcr^t cf "joricorri^lLf'riCe b^T
:.. ^_._,•-„ ,',. • -Jjt;.£*"H^
rtiitd uDcn bv tne PCTW for its
* n * ri s* *""' ^
i'j.dcrsement or £,pprovU cf tlic local beards cr b-oci&i: reso-cnsible far rjper-.'isir^ end/or
•• . v- ^ - •*-, ^^ " 1^ p. "^j ^ ™ TJ T f^ *> p — T- f |" ^ r--^ p •_.••. r ^ TT fy-i"^ t> j"^'-! •; f e rl -^ f O V P^^
Ai 1 i_* Juj. 4. J., IL-.. j 'H- b ^k> 1 I" ^.y t '_ 4-J- _ ^^- i^. ^. * 1 C^ d i iv L,- L '^ t_ ^ Ch 4 L 1 i-J. CL+J tJ 1 ^ Y C- toJ H>
^^ V\ £• **. ^ rt^*^™ r^ '^•^ f^- • i--. *-*— •F^^-T^\I^ ^ )T>, ^ , ] A.^^+p*«. I- ^IP»rtr ,^*^-
ubnr.ir^icn s."aL induce £ states ent rci.e.
rocrj;ib:e fo-r £dministrE.tic
-".'iir P r "• i ec' ur f— , for cocriin,11. tion set, forth.
-'.. T;-JC pror:-L:r. c^-cripti^r; shall con tain L cescristior. cf the; funcir.j levels anc
''•.•H ar.d part time mcr.pcwer available ts impk-rr.ent the program.
(c) Condition^ POTVJ progr^- approval. The ?CTW me.y request conditionsi
::.:-provd cf the prttre.c.tr^err,- pr^rrar; pendinr.; the acquisition cf 'funding1 £nd personnel for
c :.rt£i'', eiemer.ts of the pro; T;;.".. The request f.-r conditional approval snail meet the
suosccticri accept that tl^e recuiremerits cf
limited aspect c; t,h'j prorrrarn covul b^ e.cci'irec, "pc~ receipt cf f. recuest fcr
-------
assrcvai of the ?OTT-V "etrc-it.Ter.t .rc^ri.T. and s_ny removal allowsrices grantee to the
?CTV.T -ay be modified or withdrawn.
(dj " Content c;' removal allowance submission. The recuest fcr authority to revise
cst2^cr:c£_L sretreatrn^r'.t standards shall contain the infcrmatian recuired Li subsection
CcXdf.
(e) Approval authority action. A PCTVv requesting ?CTW pre treatment program
(bj. U~on £ p r eLi .T. inE_-V cetermiriaticn that the submission meets the requirements of
paragraph (b) of this section the 'director will:
1. Nctifv the ?CTV>' that the SUD mission- has been received and Is under review;
and
2. Commence the public notice and evaluation activities set forth L™ subsection
(9).
(f) Notification where E~J b ~ isr: c p. Ls defective. Lf after re%new of the subrr.ission
e1
"ectcr will ~ re vide- notice in writinr to t_he
and advise of the mesoir," by wruch the POT'A'
1 r~' ^' t~ '.s **~u b*7 ~' ^ *"' o n
:._r •' C o rsis t e r- c v w i th w a t *•" "* ^ u ali "v *T an air ^ '^ e n t '~'-i£Lri_£- H • In order to b e -
r^n-s-rcved. the PCT'V ^retrestmer.t Drc-eram shall be consistent with ar.v aj;c.~0'Ved water
<~",\ - <•&.-
: the pLibiJc ccr.ment ptriod provided fcr in su-secticn
01 u^c ^rci^Tarri*
beer, acprovc-d or when £ ritUi h£js beer; E^rrcved but
' f~. f^ ^ p r r~ ''.^ ^ r7 r-. 1^1 c "* f " t -" QJ™ cr- c ^; ~^ *• & -^^^ o f^ * *^", *"- ""* ^ |J^ c I — } anj~l e T
director will solicit the rs'.'iev,' £j;c comment of the
(a; Decdjlne for review of sunm;rr:on. The director will hcve SO davs frcrn the
;ato cf public notice cf a r-j-• r;, iiii o n comaivin^ with the rec'jirements of subsection (S), or
if £ remcvai rJ.1 c >v a.", c c is sou~r:t with the recuirements cf subsection (6), to review the
recuiremer.L: cf subsection {£), and when s. removal allowance is saurht. with ru^secticn
1 the time fcr evaitsticn cf
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This ouuiJc ncticfc ™'ll] he circuit ttc ir. £ r::£.^ri£r ce4LJ^?ied 10 itfcrrn interested
.:v:i"Jlv ir, t !.'.:" t;r,cd r^j^cr:^ cf *he ".:.':•" ifoi en, procs-cur?:.:: fcr the cirsuistion c.f
ti-::e ^"ill induce rr:£_:iin~ ncticis cf the request for approval cf the submission to
- « f~"*A* i ci-»^*-;»---i f"? !'': ~ v" C f"1 1 T S ^ ~l£r-r>^><~ a (»Q(* en:" cr crter-dcd ccm-ent
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NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Environmental Protection
Division of Water
401 KA-R 5:060. EPDES Application Requirements
RELATES TO: KRS Chapter 224
PURSUANT TO: KRS 13.082, 224.020, 224.033(1S), (21), (22), (23), 224.034,
224.060.
NECESSITY AND FUNCTION: KRS 224.033(19} authorises the natural resources
and environmental protection cabinet to issue, continue in effect, revoke, modify, suspend
or de.-y under such conditions as the cabinet may prescribe, permits to discharge into any
waters of the commonwealth. KRS 224.034 further empowers the cabinet to issue federal
permits pursuant to 33 U.S.C. 1342{b) of the Federal Water Pollution Control Act (33
U.S,C, Section 1251 et. seq.) subject to the conditions imposed in 33 U.S.C. Sections
1342(b) and 1342(d) and that any exemptions granted shall be pursuant to the Federal
Water Pollution Control Act, This regulation sets forth the applicaiion requirements for
all KPDES permits and contains additional requirements for general 'and specific
categories of dischargers.
Section 1. Applying for a EPDES Permit, (l) Application Requirements, (a) Any
person who is required to have £ perm it," including new applicants end permittees with
expiring perrr;its shall complete, sign, and submit an application tc the director as
described in this regulation and 401 KAR 5:055. On the date of KPDES program approval
by E?A, all persons permittee or authorized under NPDES shall t>e deemed tc hold a
KPDES permit, including those expired permits which EPA has continued in effect
according to 40 CFR 122.6. continuation of expiring1 permits, "or the purpose cf this
section, the director will accept the information required under subsection 4 of this
section, for existing facilities, wnich has been suDmittea to EPA as pari ci a 1\?DE3
renewal. The applicant may be requested to update any information which is not curre.it,
(b) Any person who is required to have a permit and vmo does not have an
effective permit, shall submit a complete application to the director in accordance with
this section and 401 KAR 5:075. A complete application shall include a BMP program, if
necessary, under 401 KAR 5:065, Section 2(10). The following are exceptions to the
application requirements:
1. Persons covered by general permits under 401 KAR 5:053, Section 5;
2. Discharges excluded under 401 KAR 5--C55, Section 1; and
3. Users of a privately owned treatment works unless the director requires
otherwise under 401 KAR 5:065, Section 2(12).
(2) Time to apply. Any person proposing a new discharge shall submit s_".
application at least 150 days before the date or. which the discharge is tc commence.
unless permission for s. later date has been granted by the director. ,
(3) Duty to apply. When a faciiitv or activity is owned by one (1) person but is
operated by another person, it is the operator's duty to cbtain a. permit.
(4) Duty to reapply. fa) Any person with e currently effective permit shall
subm:; a new appliestier; at least 150 cays before the expiration date of the existing
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permit, unless permission for a Later date has 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.
(b) Continuation of expiring permits. The conditions of an expired permit
continue in force until the effective date of a new permit \ii
1. The permittee has submitted a timely application under subsection (2) of this
section which is a complete application for a new permit; and
2. The director, through no fault of the permittee, does not issue a new permit
with an effective date under 401 KAE 5:075, Section 11 on or before the expiration date
of the previous permit,
3, Effect. Permits continued under this paragraph remain fully effective and
enforceable until the effective date of a new permit,
4. Enforcement, When the permittee is not in compliance with the conditions of
the expiring or expired permit the director may choose to do any or an of the following:
a* Initiate enforcement action based upon the permit which has been continued;
b. Issue a notice of intent to deny the new permit under 401 KAR 5:075, Section
3(2);
c. Issue a new permit under 401 EAR 5:07S with appropriate conditions; or
d. Take other actions authorised by the KPDES regulations.
(S) Completeness, The director will not issue a KPDES permit before receiving a
complete application for i permit, A permit application is complete when the cabinet
receives an application form with any supplemental information which is completed to the
director's satisfaction.
(6) Information requirements. Ail applicants for 'KPDES permits shall provide the
following information to the director, using the application form provided by the director.
(a) The activities being- conducted which require the applicant to obtain £ KPDES
permit,
(b) Name, mailing address, and location of the facility for which the application is
submitted.
(c) from one (1) to four (4) SIC codes which best reflect the principal products or
services provided by the facility,
(d) . The operator's name, address, telephone number, ownership status, and status
as to federal, state, private, public, or other entity*
(e) A listing of all other relevant environmental permits, or construction
approvals issued by the cabinet or other state or federal perr.its, 25 requested,
(f) A topographic map> or other map if a topographic map is unavailable,
extending one (1) mile beyond the property boundaries of the source, depicting the facility
and each of its Intake and discharge structures and those wells, springs, other surface
water bodies, and drinking water wells listed in public records or otherwise known to the
applicant within one-quarter (1/4) mile of the facility property boundary.
(g-) A brief description of the of the business,
(h) Additional information may also be required of new sources, n«w dischargers
and major facilities to determine any significant adverse environmental effects of the
discharge pursuant to new source regulations promulgated by the cabinet,
(7) Recordkeeping. Applicants shall keep records of all data used to complete
permit applications and any'supplemental information submitted under this regulation for
a period of at least three (3) years from the date toe application is signed.
(S) Service of process. Every applicant and permittee shall provide the cabinet an
accress for receipt of any lepd nature for service of process. The last adctrels provided
to the cabinet pursuant to this provision shall be the address at which the cabinet may
tender lefal notice including' but not limited to service of process in connection with
any enforcement action. Service, whether by bond or by mailT shall be complete upon
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tender of the notice, process or order and shall not be deemed incomplete because of
refusal to accept or if the addressee is not found.
Section 2. Confidentiality of information. CD In accordance with KRS 224.035 any
information submitted to the cabinet pursuant to the KPDES regulations may be claimed
as confidential by the submitter. Any such claim must be asserted at the time of
submission in the manner prescribed on the application form or instructions or, in the case
of other submissions, by stamping the words "confidential business information" on each
page containing such information. If no claim is made at the time of submission, the
cabinet may make the information available to the public without further notice. If a
claim is asserted, the information will be treated in accordance with the procedures in
KRS 224.035.
(2) Information, which includes elfluent data, required by KPDES application
forms provided by the director under Section 1 of this regulation may "not be claimed
confidential. Information contained in KPDES permits or permit applications may not be
claimed as confidential business information,
Section 3. Signatories to permit applications and reports. (1) Applications. All
permit applications shall be signed as follows:
(a) For a corporation: by a principal executive officer of at least the level of
vice-president;
(b) For a partnership or sole proprietorship: by a general partner or the proprietor,
respectively; or
(c) For £ municipality, state, federal, or other public agency: by either a principal
executive officer or ranking elected official,
(2) Reports, All reports required by permits and other information requested by
the director shall be signed by a person described in subsection (1) of this section, or by a
duly authorized representative of that person. A person is a duly authorized
representative only if the following conditions are met:
(a) The authorization is made in writing by a person described in subsection (1) of
this section;
(b) The authorization specifies either an individual or a position having
responsibility for the overall operation of the regulated facility or activity, such as the
position of plant manager, superintendent, or position of equivalent responsibility.
(c) The written authorisation is submitted to the director.
(3) Changes to authorization. If an authorization under subsection (2) of this
section is no longer accurate because a different individual or position has responsibility
for the overall operation of the facility, a new authorization satisfying the requirements
of subsection (2) of this section must be submitted to the director prior to or together
with any reports, information, or applications to be signed by an authorized
representative.
(4) Certification, Any person signing a document under this section shall make
the following certification:
"I certify under penalty of law that I have personally examined and am familiar with
the information submitted in this document and all attachments and that, based on my
inquiry of those individuals immediately responsible for obtaining the information, I
believe that the information is true, accurate, and complete, 1 am aware that there are
significant penalties for submitting false information, including the possibility of fine and
imprisonment." •
Section 4. Application requirements for ezisting manufac wring, commercial,
mining, and sflvi cultural dischargers, Ixis:ing manufacturing, commercial, mining, and
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silvicuitural dischargers applying for KPDES permits shall provide the following
information to the director, using application forms provided by the director:
(1) Outfall location. The Latitude and longitude to the nearest fifteen (15) seconds
and the name of the receiving water shall be provided by the applicant,
(2) Line drawing. A line drawing of the water flow through the facility with a
water balance, showing operations contributing wastewater to the effluent and treatment
units shall b« included in the application, Similar processes, operations, or production
areas may be indicated as § single unit, labeled to correspond to the mort detailed
identification under subsection (3) of this section. The water balance shall show
approximate average flows at intake and discharge points and between units, indydinf
treatment units. If a water balance cannot be determined the applicant may provide a
pictorial description of the nature and amount of any sources of water and any collection
and treatment measures,
(3) Average flows and treatment. The applicant shall provide a narrative
identification of each type of process, operation, or production' area which contributes
wastewater to the effluent for each outfall, including process wastewater, eooEng watert
and storm water runoff; the average flow which each process contributes; and t
description of the treatment the wastewater receives, including the ultimate disposal of
any solid or fluid wastes other than by discharge. Processes, operations or production
areas may be described in general terms, for example, dye-making' reactor, distillation
tower. For a. privately owned treatment works, this information shall include the identity
of each user of the treatment works.
(4) Intermittent flows.. If any of the discharges described in subsection 3 of this
se-etion are intermittent or seasonal, the applicant shall provide a description of the
frequency, duration- and flow rate of each discharg-e occurrence, except for storm water
runoff, spillage, or leaks.
(5) production. If an EPA effluent guideline applies to the applicant
and is expressed in terms of production or other measure of operation, a reasonable
measure of the applicant's actual production reported in the units usad in the applicable
effluent guideline shall be included. The reported measure shall reflect the actual
production of the facility as required by 401 KAE 5:OSS, Section 3(2).
(6) Improvements, If the applicant Is subject to any present requirements or
compliance schedules for construction, upgrading or operation of waste treatment
equipment, an identification of the abatement requirement, a description of the
abatement project, and a listing of the required and projected final compliance dates shall
be included,
(7) Effluent characteristics. Information on the discharge of pollutants specified
In this subsection shall be provided "by the applicant, When quantitative data for a
pollutant is required, the applicant must coEeet a sample of effluent end analyze it for
the poEutant in accordance with analytical methods approved under 40 CFR Part 136,
When no analytical method is approved the applicant may use any suitable method but
shall provide a description of the method. When an applicant has two or more outfalls
with substantially identical effluents, the director may allow the applicant to test only
one outfall and report that the quantitative data also applies to the substantially identical
outfalls. The requirements in paragraphs (c) and (d) of this subsection that an applicant
shall provide quantitative data for certain peHutAnts known or believed to be present does
not epply to pollutants present in a solely as the of their presence in
int&ke water; however, an applicant shall report such pollutants as present. Grab samples
must be for pK5 temperature, cyanide, total phenols, residual chlorine, o& and
grease, and fecal eoLLform. ^For all other poEutants, twenty-four (24)-hour compositt
samples bt An applicant is to Icnow or have rt&son to believe that a
pollutant is in an effluent on an evaluation of the expected use, production,
or storage of the pollutant, or on any previous analyses for the pollutant.
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(a)l. Every applicant shall report quantitative data for every ou:fa_U for the
following pollutants:
a. Biochemical Oxygen Demand (BOD)
b. Chemical Oxygen Demand
c. Total Organic Carbon
d. Total Suspended Solids
e. Ammonia {as N)
f. Temperature (both winter and summer)
g. PH
2. At the applicant's request, the director may waive' the reporting requirements
for one or more of the pollutants listed in subparagraph 1. of this subsection.
(b) Each applicant with processes in one or more primary industry category, listed
in Section 10 of this regulation, and contributing to a discharge, shall report quantitative
data for the following pollutants in each outfall containing process wastewater;
1. The organic toxic pollutants in the fractions designated in Section 13(1) of this
regulation for the applicant's industrial category or categories unless the applicant
qualifies as & small business under subsection (8) of this section. Section 13(2) of this
regulation lists the organic toxic pollutants in each fraction. The fractions result from
the sample preparation required by the analytical procedure which uses gas
chromotography/rnass spectrometry. A determination that an applicant falls within &.
particular industrial category for the purposes of selecting fractions for testing is not
conclusive as to the applicant's inclusion in that category for any other purposes.
2. The pollutants listed in Section 13(3) of this regulation: the toxic metals,
cyanide, and total phenols.
(c) Each applicant must report for each outfall quantitative eiata for the following
pollutants, if the applicant knows or has reason to believe that the pollutant is dischargee
from the outfall:
1. All pollutants listed in .Section 13(2) or (3) of this regulation, the toxic
pollutants, for which quantitative data is not otherwise required under paragraph (b) of
this subsection except that an applicant qualifying as a small business under subsection 3
of this section is not required to analyze for the pollutants listed in Section 13(2) of this
regulation, the organic toxic pollutants,
2. All pollutants in Section 13(4) of this regulation, certain conventional and
nonconventional pollutants.
(d) Each applicant shall indicate anv knowledge or to believe that any of the
pollutants in Section 13(5) of this regulation, certain hazardous substances and asbestos is
discharged from each outfall. For every pollutant expected to be discharged, the
applicant shall briefly describe the reasons the pollutant is expected to be discharged, and
report any quantitative data for any pollutant.
(e) Each applicant shall report qualitative data, generated using a screening
procedure not calibrated with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-
dioxin (TCDD) if it;
1. Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5-T); 2-(2,4,5-
trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP); 2-<2,4,5-trichlorophenoxy) ethyl 2,2-
cichlorcpropionate (Erbon); 0,0-dimethyl CK2,4,5-crichlorophenylJ phosphorothioate
(Ronnel); 2,4,5-trichlorophenol (TCP); or hexachlorophene (EC?); or
2. Knows or has reason to believe that TCDD is or may be present in an effluent.
(8) Small business exemption. An applicant which qualifies as a small business
under one of the following criteria is exempt from the requirements in paragraphs (b)l cr
(c)l of this subsection to submit quantitative data for the pollutants listed in Section 13(2)
of this regulation, organic toxic pollutants:
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(a) For coal mines, a probable total annual production of less than 100,000 tons
per year.
(b) For ail other applicants, gross total annual sales averaging less than $100,000
per year, in second quarter 1380 dollars,
(9) Used or manufactured toxics. The application shall include a listing of any
toric pollutant which the applicant:
(a) Does use or manufacture &s an intermediate or final product or byproduct
currently; or
(b) Expects to use or manufacture £5 an" intermediate or final product or
byproduct during the nert five (5) years.
tlO) Potential discharges. The applicant shall provide a description of the ejected
levels of and the reasons for any discharges of pollutants which the applicant knows or has
reason to believe will exceed two (2) times the values reported in subsection (7) of this
section over the nert five (5) years,
(11) Biological tenacity tests. The applicant shall identify any biological toxicity
tests which it knows or has reason to believe have been made within the last three (3)
years on any of the applicant's discharges or on & receiving water in relation to a
discharge.
(12) Contract analyses. If a contract laboratory or consulting firm performed any
of the analyses required by subsection (7) of' this regulation, the identity of each
laboratory or firm and the analyses performed shall be included in the application,
(13) Additional information. In addition to the information reported on the
application form, applicants shall provide to the director, upon request, other information
as the director may reasonably require to assess the discharges of the facility and to
determine whether to issue a KPDES permit, The additional information may include
additional quantitative data and bioassays to assess the relative tozicity of discharges to
aquatic life and requirements to determine the cause of the toxicity.
Section 5. Concentrated animal feeding' operations: specific application
(1) Permit required. Concentrated animal feeding operations are point sources
subject to the KFDES permit program.
(2) Definitions, (a) "Animal feeding operation" means a lot or facility, other than
an aquatic animal production facility, where the following conditions are met:
L Animals, other than aquatic animals, have been, are, or will be stabled or
confined and fed or maintained for a total of forty-five (45) days or more in any twelve
(12) month period; and
2, Crops, vegetation forage growth, or post-harvest residues are not sustained in
the normal growing' season over any portion of the lot or facility.
(b) Two (2) or more animal feeding operations under common ownership are
considered, for the purposes of the KPDES regulations, to be a single animal feeding
operation if they adjoin each other or if they use a common area or system for the
disposal of wastes.
(c) "Concentrated animal feeding operation" means an "animal feeding operation"
which meets the criteria in Section 11 of this regulation or which the director designates
under subsection (3) of this section.
(3) Case-by-case designation of concentrat&d animal feeding' operations, (a) The
director may designate any animal feeding operation as a concentrated anicisl feeding
operation upon determining that it is a significant contributor cf pollution to the waters
of tile commonwealth. In making this designation the director win consider the following
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1, The size of the animal feeding operation and the amount of wastes reaching
waters of the commonwealth;
2. The location of the animal feeding operation relative to waters of the
commonwealth;
3. The means of conveyance of animal wastes and process waste waters into
waters of the commonwealth;
4. The slope, vegetation, rainfall, and other factors affecting; the likelihood or
frequency of discharge of animal wastes and process waste waters into waters of the
commonwealth; and
S. Other relevant factors,
(b) No animal feeding operation with less than the numbers of animals set forth in
Section 11 of this regulation will be designated as a concentrated animal feeding
operation unless:
I. Pollutants are discharged into waters of the commonwealth through a
manmade ditch, flushing system, or other similar manrnade device; or
2. PoEutants are discharged directly into the waters of the commonwealth which
originate outside of the facility and pass over, across, or through the facility or otherwise
come into direct contact with the animals confined in the operation.
(c) A permit application will not bs required from a concentrated animal feeding
operation designed under this section until the director or an authorized representative
has conducted an on-site inspection of the operation and determined that the operation
should and could be regulated under the KPDES permit program.
(4) Information required. New and existing concentrated animal feeding
operations shall provide the following information to the director, using the application
form provided by the director:
(a) The type and number of animals in open confinement and housed under roof,
(b) The number of acres used for confinement feeding.
(c) The design basis for the runoff diversion and control system, if one exists,
including the number of acres of contributing drainage, the storage capacity, snd the
design safety factor.
Section 8. Concentrated aquatic animal production facilities: specific application
requirements.
(1) Permit required. Concentrated aquatic animal production facilities, as
defined in this section, are point sources subject to the KPDES permit program.
(2) Definitions. "Concentrated aquatic animal production facility" means a
hatchery, fish farm, or other facility which meets the criteria in Section 12 of this
regulation or which the director designates under subsection (3) of this section.
(3) Case-by-case designation of concentrated aquatic animal production facilities.
(a) The director may designate any warm or cold water aquatic animal production
facility as a concentrated aquatic animal production facility upon determining that it is a
significant contributor of pollution to the waters of the commonwealth. In making this
designation the director will consider the following factors:
1. The location and quality of the receiving waters of the commonwealth;
2. The holding, feeding, and production capacities of the facility;
3. The quantity and nature of the pollutants reaching waters of the
commonwealth; and
4, Other relevant factors,
(b) A permit application will not be required from a concentrated aquatic animal
production facility designated under this section until the director or authorized
representative has conducted on-site inspection of the facility and has determined that
the facility should and could be regulated under the KPDES permit program.
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(4) Information required. New and existing concentrated aquatic anirnai
production facilities shall provide the following information to the director, using the
application form provided by the director:
(a) The maximum daily and average monthly flow from each owtfall.
(t>) The number of ponds, raceways, and similar structures.
(c) The name of the receiving water and the source of intake water.
(d) For each species of aquatic animals, the total yearly and marimura
harvestable weight,
(e) The calendar month of maximum feeding and the total irms? of food fed during'
that month,
Section 7. Aqusculture projects: specific application requirements, (1) Permit
required. Discharges into aquaculture projects, as defined in this section, are subject to
the KPDES permit program and in accordance with 401 KAR 5:080^«etion 2.
(2) Definitions, (a) "Aquaculture project" means a defined managed water area
which uses discharges of pollutants into that designed area for the maintenance or
production of harvestable freshwater plants and animals.
(b) designated project area" means the portions of the waters of the
commonwealth within which the permittee or permit applicant plans to confine the
cultivated species, using a method or plan of operation, including,, but not limited to,
physical confinement, which, on the basis of reliable scientific evidence, is expected to
ensure that specific individual organisms comprising an aquacultnre crop will enjoy
increased growth attributable to the discharge of pollutants, and be harvested within a
defined geographic area.
Section 8. Separate storm s«wers sspeeifle application requirements, (1) Permit
requirement. Separate storm sewers, as defined in this section are point sources subject
to the KPDES permit program. Separate storm sewers may be permitted either,
individually orunder a general permit. A KPDES permit for discharges into waters of the
commonwealth from a separate storm sewer covers all conveyances which are a part of
that separate storm sewer system, even though there may be several owners or operators
of these conveyances. However, discharges into separate storm sewers from point sources
which are not part of the separate storm sewer systems may also require a permit,
(2) Definition and criteria, (a) Separate storm sewer11 means a conveyance or
system of conveyances, including pipes, conduits, ditches, and channels, primarily used for
collecting and conveying storm water runoff and which is either:
1. Located in an urbanized area as designated by the University of Louisville's
Urban Studies Center consistent with the Bureau of the Census; or
2. Not located in an urbanized area but designated under subsection (3) of this
section.
Cb) Ercept as provided in paragraph (e) of this subsection, a conveyance or system
of conveyances operated primarily for the purpose of collecting and conveying storm
water runoff whieh is not located in an urbanized area and has not been designated by the
director under subsection (3) of this section is not considered a point source and is not
subject to the provisions of this subsection.
(c) Conveyances which discharge process wastewater or storm water runoff
contaminated by contact with wastes, raw materials, or pollutant-contaminated soil, from
lands or facilities used for industrial or commercial activities, into waters of the
commonwealth or into separate storm sewers are point sources that must obtain KPDES
permits but are not separate storm sewers.
(d) Whether a system of conveyances is or is not a separate storm sewer for
purposes of this section shall have no bearing on whether the system is eligible for funding
under Title H of
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(2) Case-by-case designation of separate storm severs. The director mey
designate a storm sewer not located in an urbanized area as a separate storm sewer. This
designation may be made to the extent allowed or required by EPA promulgated effluent
guidelines for point sources in the separate storm sewer category; or when:
(a) A Kentucky Water Quality Management Plan which contains requirements
applicable to such point sources is approved by EPA; or
(b) The director determines that a storm sewer is a significant contributor cf
pollution to the waters of the commonwealth. In making this determination the director
will consider the following factors:
1. The location of the discharge with respect to waters of the commonwealth;
2. The size of the discharge;
3. The quantity and nature of the pollutants reaching waters of the
commonwealth; and
4. Other relevant factors.
Section 9. Sflvicultural activities; specific application requirements. (1) Permit
requirement. Silvicultural point sources, as defined in this section, are point sources
subject to the KPDES permit program.
(2) Definitions, (a) "Silvicultural point source" means any discernible, confined,
and discrete conveyance related to rock crushing, gravel washing, log sorting, or log
storage facilities which are operated in connection with silvicultural activities and from
which pollutants are discharged into waters of the commonwealth. The term does not
include non-point source silvicultural "activities such as nursery operations, site
preparation, reforestation and subsequent cultural treatment, thinning, prescribed
burning, pest and fire control, "harvesting operations, surface drainage, or road
construction and maintenance from which there is natural runoff.
(b) "Rock crushing and gravel washing facilities" means facilities which process
crushed and broken stone, gravel, and riprap,
(c) ''Log sorting and log storage facilities" means facilities whose discharges
result from the holding of unprocessed wood, for example, logs or roundwood with bark cr
after removal of bark held in self-contained bodies of water or stored on land where water
is applied intentionally on the logs.
Section 10. Primary Industry Categories. Any KPDES permit issued to dischargers
in the following categories shall include effluent limitations and a compliance schedule to
meet the requirements of the KPDES regulations whether or not applicable effluent
limitations guidelines have been promulgated.
Cl) Adhesives and sealants
(2) Aluminum forming
(3) Auto and other laundries
(4) Battery manufacturing
(5) Coal mining
(6) Coil coating
(7) Copper forming
(8) Electrical and electronic components
(S) Electroplating
(10) Explosives manufacturing
(11) Foundries
(12) Gurn and wood chemicals
(13) Inorganic chemicals manufacturing •
(14) Iron and steei manufacturing
(IS! Leather tanning and finishing
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(16) Mechanical products manufacturing
(17) Nonferrous metals manufacturing
(18) Ore mining
(19) Organic chemicals manufacturing
(20) Paint and Lok formulation
(21) Pesticides
(22) Petroleum refining
(23) Pharmaceutical preparations
(24) Photographie equipment and supplies
(25) Plastics processing
(26) Plastic and synthetic materials manufacturing
(27) Porcelain enameling
(28) Printing and publishing
(29) Pulp and paper mills
(30) Rubber processing
(31) Soap and detergent manufacturing
(32) Steam electric power plants
(33) TesrtH*
(34) Timber products processing
Section 11. Criteria for determining a concentrated animal feeding operation, An
animal feeding operation is a concentrated animal feeding operation for purposes of
Section 5 of this regulation if either of the following criteria are met.
(1) Criteria of rauaber only. The facility meets the criteria if more than the
numbers of animals specified in any of the following catenaries are eeafiaedi
la) 1?000 slaughter and feeder cattle,
(b) 700 mature dairy cattle, whether mflked er dry cows,
(c) 2,SOO swine weighing over 25 kilograms, approximately 55 pounds,
(d) 500 horses, -.•-.-
(e) 10,000 shtep or lambs,
(f) 55,000 turkeys,
' (g) 100,000 laying hens or broilers, if the facility has continuous overflow
(h) 30,000 laying hens or broilers, if the facility has a liquid manure handUrtf
system,
ft) 5,000 ducks, or
0") 1,000 animal or
(2) Criteria of sad of the discharge. The facility meets the
criteria if more the following number and types of animals ar« confined:
(a) 300 slaughter or feeder cattle,
(b) 200 maturs dairy cattle, whether milked or dry cows,
(c) 750 swine each weighing over 25 kilograms, approximately 85 pounds,
(d) 180 hofses,
(*) 3,000 sheep or lambs,
Cf) 16,500 turkeys,
(g) 30,000 laying hens or broilers, if the facility has continuous overflow watering,
(h) 9,000 or broilers, if the facility his a liquid manure handling
system,
(i) 1;SOO ducks, or
(j) 300 animal units; and
(k) Either one of the following- conditions are met:
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1, Pollutants are discharged into waters of the commonwealth through a
marinade ditch, Hushing system or other similar manmade device; or
2. Pollutants are - discharged directly into waters of the commonwealth which
originate outside of and pass over, across, or through the facility or otherwise come into
direct contact with the animals confined in the operation. '
(3) Special provision. No animal feeding operation is a concentrated animal
feeding operation as defined in subsections (1) and (2) of this section if such animal
feeding operation discharges only in the event of a twenty-five (25) year, twenty-four (24)
hour storm event.
(4) Definitions, (a) "Animal unit" means a unit of measurement for any animal
feeding operation calculated by adding the following numbers: the number of slaughter
and feeder cattle multiplied by 1.0, plus the number of mature dairy cattle multiplied by
1.4, plus the number cf swine weighing over 25 kilograms (approximately 55 pounds)
multiplied by 0,4, plus the number of sheep multiplied by 0.1, plus the number of horses
multiplied by 2.0.
(b) "Manmade" means constructed by man and used for the purpose of transporting
wastes,
Section 12. Criteria for determining a concentrated aquatic animal production
facility. A hatchery, fish farm, or other facility is a concentrated aquatic animal
production facility for purposes of Section 5 of this regulation if it contains, grows, or
holes aquatic animals in either of the following categories:
(1) Cold water aquatic animals. Cold water fish species or other cold water
aquatic animals in ponds, raceways, or other similar structures which discharge at least
thirty (30) days per year but does not include:
(a) Facilities which produce less than 9,090 harvest weight kilograms
(approximately 20,000 pounds) of aquatic animals per year; and
(b) Facilities which feed less than 5,272 kilograms (approximately 5,000 pounds) of
food during the calendar month of "tnarimum feeding.
(c) Cold water aquatic animals include, but are not Limited to the Salmonidoe
family of the fish; e.g. trout and salmon.
(2) Warm water aquatic animals. Warm water fish species or other warm water
aquatic animals in ponds, raceways, or other similar structures which discharge at least
thirty (30) days per year, but does not include:
(a) Closed ponds which discharge only during periods cf excess runoff; or
(b) Facilities wnich produce less that 45,454 harvest weight kilogram;
(approximately 100,000 pounds) of aquatic animals per year,
(c) "Warm water aquatic animals" include, but are not limited to, the Ameiuride,
Centrachidae and Cyprinidae families of fish; e.g. respectively, catfish, sunfish and
minnows.
Section 13. EPDES permit application testing requirements. (1) Table I - Testing
Requirements for Organic Toxic Pollutants for Industrial Category for Existing
Dischargers
industrial category
Achesives ana secants
GC/MS iracuon-
Voifi- Acid Ease; Pes;:-
• 4 . .
tile neutral ciae
1-1 C) (*!
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A Inm inn tTi ForminF
C)
.3°,c.^,-a.
(*)
&
Pesti-
cice
»...»..
«..»...
C)
,,,ff,r*ft
„-»«*,.,.
•**d~»d.**««
C)
»««,«»»
«»».».
(*}
imriTtTTir
(*}
C)
C)
C*)
C)
(*)
. .... „.».
(*)
(")
(•)
C")
(*)
«,.„„...
*_**«»»..,
.»».„.»«.,
Pesti-
cide
C)
The toxic pollutants in each iraction
'Testing required.
in Tabie II.
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(2) Table n - Org-ajiic Toxic pollutants in Each of Four Fractions in Analysis by
G&s Cnromatography/Mass Spectroscopy (GC/MS)
(a) Volatiies
IV acrolein
2V acrylonitrile
3V benzene
4V bis (chloromethyl) ether
5V bromoform
6V carbon tetrachloride
TV chlorobenzene
SV chiorodibro mom ethane
9V chloroethane
10V 2-chloroethylvinyl ether
11V chloroforrn
12V dichlorobromomethane
13V dichlorodifluoro me thane
14V 1,1-dichloroe thane
15V 1,2-dichloroe thane
16V 1,1-dichioroethylene
17V 1,2-dicnloropropane
18V 1,2-dichioropropyiene
19V ethylbenzene
20V methyl bromide
21V methyl chloride
22V methylene chloride
23V 1,1,2,2-tetrachloroethane
24V tetrachloroethylene
2SV toluene —
26V 1,2-trans-dicrJoroethyiene
27V 1,1,1-trichloroethane'
28V 1,1,2-trichlopoe thane
29 V trichloroethylene
30V tri chloro fluoro me thane
31V vinyl chloride
(b) Acid Compounds
1A 2-chiorophenol
2A 2,4-dichlorophenoi
3A 2,4-dimethylphenol
4A 4,6-dinitrc^o-cresol
5A 2,4-dinitrophenoi
6A 2-nitrophenol
7 A 4-nitrophenol
8A p-chloro-m-cresol
SA penLachlorophenol
10A phenol
11A 2,4,5-tricrJorophenol
(c) Base/Neutral
13 acenapnthene
23 ace.iashthyiene
3B anthracene
4B benzidine
53 bensofaianthrscene
-------
SB benzo(a)pyren«
7B 3,4-benaofl.uoranthene
9B bens ode) flu or an th en e
1GB bis(2-ciiloroethoxy)methanft
11B bis(2-ehloroethyl)ether
- 12B bis(2-chloroisopropyl}ethcf
13B bis(2-*thylhexyl)phthalate
14B 4-brotnophanyl phenyl ether
1SB butylbenzyl phthalate
163 2-chloronaphthalene
ITS 4~cMorophenyl phenyl eth«r
18 B chrysenc
19 B dib«nzo(a^i}anthracenc
2 OB 1,2 -dichloro benzene
2 IB I?3-dichlQroben3ene
223 1,4-dichlorobensene
23B 3,3"-dichlorob«nzidine
24B dlethyl phthalate
253 dimethyl prtthalate
263 di-n-butyl phthalste
2?3 2,4-dinitrotoluene
28B 2,6-dinitrotoluene
2SB di-n-oetyl phthalate
SOB 1,2-diphenylhycrazine (as azobenseue)
313 Guoranthene
323 Guorene
34B hermcMorobutadiene
353 hexachlorocyclopentadleiift
3i3 hexachloroe thane
33B isophorone
3SB naphthalene
403 nitrobenzene
413 N-flitrosodimethyiamine
42S N-mtrosodi-n-propyLamine
42B N-ftitrosodiphenylamine
44B ph*nanth.r«ne
(d)
IP
2P
3P
4?
5P
6?
7P
8P
9?
IOP
Pesticide:
aJdrin
Q-BHC
S-BHC
Y-BHC
5-BHC
chlordane
4»4'-DDT
4,4!-DDE
4,4'-DDD
dieldrin
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IIP Q-endosuifan
12P 8-endosulfan
13P endorjlfan suifate
14P tndrin
15? endrin aldehyde
16? heptachlor
17P heptachlor epoxide
ISP PCB-1242
19P PCB-1254
20P PCB-1221
2 IP PCB-1232
22P" PCB-1248
23P PCB-1260
24P PCB-1016
25P toxaphene
(3) Table Ht - Other Toxic Pollutants: Metals, Cyanide, and Total Phenols
(a) Antimony, Total
(b) Arsenic, Total
(c) Beryllium, Total
(d) Cad'mium, Total
(e) Chromium, Total
(f) Copper, Total
(g) Lead, Total
(h) Mercury, Total
(i) Nickei/Total
0) Selenium, Total
GO SUver, Total
0) Thallium, Total
(m) Zinc, Total
(n) Cyanide, Total
(o) Phenols, Total
(4) Table IV - Conventional and Nonconventional Pollutants Required to be Tested
by Existing Dischargers if Expected to be Present
(a) Bromide
(b) Chlorine, Total Residual
(c) Color
(d) Fecal Coliform
(e) Fluoride
(f) Nitrate-Nitrite
(g) Nitrogen, Total Organic
(h) Oil and Grease
(i) Phosphorus, Total
(j) Radioactivity
Ck) Suifate
(1) Sulfide
(IT.) Sulfite
(n) Surfactants
(o) Aluminum, Total .
(pi Barium. Total
(q) Boron, Total
(r) Cobalt, Total
(s) Iron, Total
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.LI. Carbaryl
(t) Magnesium, Total
(u) Molybdenum, Total
(v) Manganese, Total
(w) Tin, Total
(x) Titanium, Total
(5) Table V - Toxic Pollutants and Hazardous Substances Required to be Identified
by Existing Dischargers if Expected to be Present
(a) Toade Pollutants - Asbestos
Cb) Hazardous Substance
1. Acetaldehyde
2. Allyl alcohol
3. AJlyl chloride
4. Amyl acetate
5. Aniline
6. Benzonitnle
7. Benzyl chloride
8. Butyl acetate
9. Butylamins
10,
1.
12. Carbofuran
13. Carbon disulfide
14. Chlorpyrifos
15. Coumaphos
IS. Cresol
17. Croton&ldehyd*
IS. Cycloherane
13. 2,4-D(2,4-Dichlorophenoxy acetic acid)
20. Diasirjon
21. Dicamba
22. Dichlobenil
23. Dichlone
24. 2,2-Dichloropropionic acid
25. Dichlorvos
26. Dietnyl amine
27. Dimethyl amine
28. Dintrobenzene
23. Diquat
30. Disulfoton
31. Diuron
32. Epichlorohydrin
33, Ethanolamine
34. Ethion
35. £Uiylen« diamine
36. Ethylene dibromide
37. Formaldehyde
38. Furfural
39. Guthion
40. Isoprene
41. Lsopropanolamine
42. Keithane
43. Kepone
16
-------
44. Malathion
45, Mereaptodimethur
46, Methoxyehlor
47. Methyl mercaptan
48, Methyl methacrylate
49. Methyl parathion
50. Mevinphos
51. Mexacerbate
52. Monoethyl amine
53. Monometbyl amine
54. Naled
55. Napthenic acid
56. Nitrotoluene
57. Parathion
58. Phenolsulfanate
59. Phosgene
60. Propargite
61, Propylene oxide
62. Pyrethrins
63. Quinoline
64, Resoreinol
65, Strontium
66. Strychnine
67. Styrene
68. 2,4,5-T(2,4,5-Trichlorophenor7 acetic acid)
69. TDE(TetrachlorodiphenyieLhane)
• 70. 2,4.5-7?
71. Trichlorofon
72. Triethyiamine
73. Tri ro e thy ia mine
74. Oranium
75. Vanadium
76. Vinyl Acetate
77. Xyfene
78. Xylenol
79. Zirconium
Section 14. Application Requirements of Section 4(7){b)l Exempted for Certain
Categories and Subeategories of Primary Industries. Categories of dischargers for which
Section 4(7Xb)l of this regulation is exempted far cslegcries and subcategories of the
primary industries listed in Section 10 of 401 KAR 5:060,
(I) Goal mines.
(2) Testing and reporting for all four organic fractions in the Greife Mills
Su&citefory of the Textile Mills industry and testing and reporting: for the pesticide
fraction in all other subcategories of this industrial category.
(3) Testing and reporting for the volatile, base/neutral and pesticide fractions Ir.
the Sase and Precious Metals Subcategory of the Ore Mining and Dressing industry, and
testing and reporting for ail four fractions in ail other subcategcries of this industrial
category.
<4) Testing and reporting for ell four GC/MS frect:ons in the Porcelain Enameii-g
industry.
(5) Testing and reporting for the pesticide fraction in the TaH Oil Res;?.
Subcstegory and Rosin-Basec Derivatives Subcategory of the Gum and Wood Cherr.icais
• 17
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industry sJid testing and reporting for the pesticide and base/neutral fractions in all other
subsateErories of this industrial category.
(5) Testing and reporting for the pesticide fraction in the Leather Tanning and
finishing, Paint and Ink Formulation, and Photographic Supplies industrial categories.
(7) Testing and reporting for the add, base/neutral and pcstieide fractaoos L* the
Petroleum Refining industrial category.
(8) Testing1 and reporting for the pesticide fraction in tbe Papergrade Sidfite
subcategories of the Pulp Paper industry; testing and reporting for the base/neutral and
pesticide fractions in the following subcateg-ories: D«ink Dissolving Draft and Papcrboard
from Waste Paper; testing and reporting for the volatile, base/neutral and pesticide
fractions in the following subcategories: BCT Bleached Kraft, Semi-Chemical and
Nonintegrated Fine Papers; and testing and reporting for the acid, base/neutral, and
pesticide fractions in the following sube&tegories: Fine Bleached Kraft, Dissolving Sulfite
Pulp, Ground wood-Fine Papers, Market Bleached Kraft, Tissue from Wastepaper, and
Nonintegrated-Tissue Papers.
(9) Testing1 and reporting for the base/neirfral fraction in the Gnce-Througt
Cooling Water, Fly Ash and Bottom Ash Transport Water process w&stestreams of the
Steam Electric Power Plant industrial category.
Section IS. Date of Applicability. The provisions of this regulation shall become
effective upon the date of program approval.
JACEE SWIGABT, SECRETARY
Recommended for approval by the Kentucky Administrative Regulations Review
Subcommittee, pursuant to ILRS Chapter 13.087, on May 26, 1983.
Recommendation upheld by the Legislative Research Commission, pursuant to KRS
Chapter 12, on June 1,
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NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET 'I
Department for Environmental Protection
Division of Water
401 KAH 5:065. KPDES Permit Conditions
RELATES TO: KRS Chapter 224
PURSUANT TO: KRS 1*883-, 224.020, 224.033(11), (19), (21), (22), 224.034,
224.060, 224.994(1), (4).
NECESSITY AND FUNCTION: KRS 224.033(19) authorizes the natural resources
and environmental protection cabinet to issue, continue in effect, revoke, modify, suspend
or deny under such conditions as-Wie cabinet may prescribe, permits to discharge into,any
waters of the cornra on wealth, KRS 224.034 further empowers the cabinet to issue federal
permits pursuant to 33 U.S.C. 1342(b) of the Federal Water Pollution Control Act (32
U.S.C. Section 1251 et. seq.) subject to the conditions imposed in 33 U.S.C. Sections
1342(b) and 1342(d) and that any' exemptions granted shall be pursuant to the Federal
Water Pollution Control Act, This regulation sets forth the conditions applicable to all
KPDES permits and the procedures for establishing and" calculating permit conditions.
Section 1. Conditions applicable to all KPDES permits. All conditions applicable to
KPDES permits will be incorporated into the permits either expressly or by reference. If
incorporated by reference, a specific citation to these regulations must be given in the
permit. In addition to conditions required in all KPDES permits, the director will
establish conditions as required on a case-by-case basis under Section 2 of this regulation
and 401 KAR 5:070. '•-
(1) Duty to comply, (a) General requirement. The permittee shall comply with
all conditions of this permit. Any permit noncompliance constitutes a violation of KRS
224, among which are the following remedies: enforcement action, permit termination.
revocation and reissuance, of-modification; or denial of a permit renewal application.
(b) Specific duties. 1. The permittee shall comply with effluent standards or
prohibitions established under 40 CFR Part 129 revised as of July 1, 1982, as published by
the Office of the Federal Register, National Archives and Register Services, General
Services Administration and available from the Superintendent of Documents, U.5.
Government Printing Offide Washington, D.C. 20402, is hereby incorporated by
reference, for toxic pollutants within the time provided in the federal regulations that
establish these standards or ^prohibitions, even if the permit has not yet been modified to
incorporate the requirement/
2, Any person who violates a permit condition as set forth in the KPDES
reg\ilations is subject to penalties under KRS 224.994(1) and (4).
(2) Duty to reapply. If the permittee wishes to continue an activity regulated by
this permit aJter the expiration date of this permit, the permittee shall apply for end
obtain a new perm:: as required in 401 KAP. 5:060, Section 1.
(3) Need to halt or reduce activity not a defense. It shall not be a defense for £
permittee in an enforcement action that it would have been necessary to halt cr reduce
the permitted activity in order to maintain compliance with the conditions of this per mi:.
upon reduction, loss, or failure of th-e treatment facility, the permittee, to the extent
necessary to maintain ccrfipliance -with the permit, shell control production of ail
discharges until the faciiitv is restorec cr an alternative method of treatment is provided.
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(4) Duty to mitigate. The permittee shall take ail reasonable steps to minimise or
correct any adverse impact on the environment resulting from noncompliance with this
permit.
(5) Proper operation and maintenance. The permittee sbafl at all times properly
operate and maintain all facilities and systems of treatment and control and related
appurtenances which are installed or used by the permittee to achieve compliance with
the conditions of tnis permit. Proper operation and maintenance includes effective
performance, adequate funding, adequate operator staffing and training, and adequate
laboratory and process controls, including1 appropriate quality assurance procedures. This
provision requires the operation of back-up or auxiliary facilities or similar systems when
necessary to achieve compliance with the conditions of the permit,
(6) Permit actions. The permit may be modified, revoked and reissued, or
terminated for cause. The filing1 of a request by the permittee for a permit modification,
revocation and reissuance, or termination, or a notification of planned changes or
anticipated noneomplianee, does not stay any permit condition.
(7) Property rights. This permit does not convey any property rights of any kind,
or any exclusive privilege,
(8) Duty to provide information. The permittee shall furnish to the director,
within a reasonable time, any information which the director may request to determine
whether cause exists for modifying, revoking and reissuing, or terminating this permit, or
to determine compliance with this permit. The permittee shall also furnish to the
director, upon request, copies of records required to be kept by this permit.
(9) Inspection and entry. The permittee shall allow the director, or an authorized
representative, upon the presentation of. credentials and other documents as may. be
required by law, to:
(a) Enter upon the permittee's premises where a regulated facility or activity is
located or conducted, or where records pertinent to the KPDES program are or may be
(b) Have access to and copy, at reasonable times, any records that must be ke^*
under the conditions of this permit;
(e) Inspect at reasonable times any facilities, equipment, inelnding monitoring and
control equipment, practices, or operations rcgiilated or required under this permit; and
(d) Sample or monitor at reasonable times, for the purposes of assuring KPDES
program compliance or as otherwise authorized by KRS Chapter 224 any substances or
parameters at any location,
(10) Monitoring and records, (a) Samples and measurements taken for the purpose
of monitoring shall be representative of the monitored activity.
(b) The permittee shall retain records of all monitoring information, including all
calibration and maintenance records and all original strip chart recordings for continuous
monitoring instrumentation, copies of all reports required by this permit, and records of
all data used to complete the application for this permit, for a period of at least three (3)
years from the date of the sample, measurement, report or application, This period may
be extended by request of the director at any time,
(c) Records of monitoring information shaU include:
1. The date, exact place, and time of sampling or measurements;
2. The individual(s) who performed the sampling- or measurements;
3. The date(s) analyses were performed;
4. The individualfs) who performed the analyses;
5, The analytical techniques or methods used; and *
6. The results of such analyses.
(d) Monitoring shall be conducted according to test procedures approved under 40
CFR Part 13S unless other test procedures have been specified in this permit.
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I
(e) Any person who falsifies, tampers with, or knowingly renders inaccurate any
I monitoring device or method required to be maintained under this permit shall, upon
conviction, be subject to penalties under KRS 224.934(4).
(11) • Signatory requirement. AH. applications, reports, or information submitted to
I the director shaU be signed and certified as indicated in 401 KAR 5:060, Section 3. Any
person who knowingly makes any false statement, representation, or certification in any
record or other document submitted or required to be maintained under this permit,
(including monitoring reports or reports of compliance or non-compliance shall, upon
conviction, be subject to penalties under KRS 224.994(4).
(12) Reporting requirements, (a) Planned changes. The permittee shall give notice
to the director is soon as possible of any planned physical altermtion or additions to the
I permitted facility,
• (b) Anticipated noneomplianee. The permittee shall give advance notice to the
director of any planned changes in the permitted facility or activity which may result in
I noncomplianee with permit requirements.
(c) Transfers. This permit is not transferable to any person except after notice to
the director. The director may require modification or revocation and reissuance of the
I permit to change the name of the permittee and incorporate sucfa other requirements as
may be necessary under KRS 224.
(d) Monitoring reports. Monitoring results shall be reported at the .intervals
_ ipecified elsewhere in this permit. Monitoring results shall be reported as follows:
9 1. Monitoring results must be reported en a Discharge Monitoring Report (DME).
2, If the permittee monitors any pollutant more frequently than required by the
permit, using test procedures approved under 40 CFR 136 or as specified in the permit,
J the results of this monitoring shall be included in the calculation and reporting of the data
fc submitted in the DMR.
~< 3. Calculations for all limitations which require averaging of measurements shall
I utilize an arithmetic mean unless otherwise specified by the director in the permit.
(e) Compliance schedules. Reports of compliance or noncomplianee with, or any
progress reports on, interim and final requirements contained in any compliance schedule
I of this permit shall be submitted no later than fourteen (14) days following each schedule
date;
(f) Twenty-four (24) hour reporting. The permittee shpfl oraUy report any
• noncomplianee which may endanger health or the environment, within twenty-four (24)
I hours irom the time the permittee becomes aware of the circumstances. This report snail
™ be in addition to and not in lieu of any other reporting requirement applicable to the
noncomplianee. A written submission shall also be provided witJiin five (5) days of the
Itime the permittee becomes aware of the circumstances. The written submission shall
contain a description of the non-compliance and its cause; the period of non-compliance,
including exact dates and times, and if the noncomplianee has not been corrected, the
1 anticipated time it is expected to continue; and steps taken or planned to reduce,
eliminate, and prevent recurrence of the non-compliance. The director may waive the
written report on a ease-by-ease basis if the oral report has been received within twenty-
_ four (24) hours. The following shall be included gs events which must be reported within
I twenty-four (24) hours: •
" 1. Any unanticipated bypass which exceeds any effluent limitation in the permit,
as indicated in subsection (13) of this section.
2. Any upset which exceeds any effluent limitation in the permit. • .
3, Violation of a maximum daily discharge limitation for any of the pollutants
listed by the director in the permit to be reported within twenty-four (24) hours, as
indicated in Section 2(7) of this regulation.
I
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(g) Other non-compliance. The permittee shall report all instances of non-
compliance not reported under paragraphs (d), {«), and (f) of this subsection, at the time
monitoring reports are submitted. The reports shall contain the information listed in
paragraph (D of this subsection,
(hi Other information. Where the permittee becomes aware that it failed to
submit any relevant fact in a permit application, or submitted incorrect information in a
permit application or in any report to the director, it shaB. promptly submit such facts or
information.
(13) Occurrence of a Bypass, (a) Definitions, l. TSypass1* means the intentional
diversion of waste streams from any portion of a treatment facility.
2. "Severs property dammpe" means substantial physical damage to property,
damage to the treatment facilities which causes them to become inoperable, or,
substantial and permanent loss of natural resources which can reasonably be expected to
occur in the absence of a bypass. Severe property damage does not mean economic loss
caused by delays in production,
(b) Bypass not exceeding limitations. The permittee may allow any bypass to
occur which does not cause effluent limitations to be exceeded, but only if it also is for
essential maintenance to assure efficient operation. A bypass is not subject to the
provisions of paragraphs (c) and (d) of this subsection.
(e) Notice. 1. Anticipated bypass. If the permittee knows in advance of the need
for a bypass, it shall submit prior notice, if possible at least ten (10) days before the date
of the bypass. Compliance with this requirement constitutes compliance with 401 KA3.
5:015, Section L
2. Unanticipated bypass. -The permittee shall submit notl&fe of an unanticipated
bypass as required in paragraph (f) of subsection (12), twenty-four (24) hour notice,
..Compliance with this requirement constitutes compliance with 401 EAJR 5:015, Section 4.
(d) Prohibition of bypass, 1, Bypass is prohibited, and the director may take
enforcement action against a permittee for bypass, unless:
iu was unavoidable to prevent of life, personal injury, or severe
property
b. There were no feasible alternatives to the bypass, such es the use of auxiliary
treatment facilities, retention of untreated wastes, or maintenance during1 normal periods
of equipment downtime, This condition is not satisfied if the permittee could have
installed adequate back"up equipment to .prevent a bypass which occurred during- normal
periods of equipment downtime or preventive T.air.tenancy and
e. The permittee submitted notices as required under paragraph (c) of this
subsection. • •
2. The director may approve an anticipated bypass, after considering its adverse
effects, if the director determines that it will meet the three conditions listed above in
subparagraph la, b and c of this paragraph.
(14) Occurrence of aa Upset, (a) Definition, "Upset" means an exceptional
incident in which there is unintentional and temporary noncompliauce with teehnology-
based permit effluent limitations because of factors beyond the reasonable control of the
permittee. An upset does not include noneompliance to the extent caused by operations!
error, improperly designed treatment facilities, inadequate treatment facilities, lack of
preventive maintenance, or careless or Impropw operation,
(b) Effect of an upset. An upset constitutes an affirmative defense to an action
brought for noneompliance with such technology-based permit effluent limitations if the
requirements of paragraph (c) of this substation art met.
(c) Conditions necessary for a demonstration of upset. A permittee who wishes to
establish the affirmative defense of upset shall demonstrate through properly signec,
contemporaneous operating logs, of other r tie van t evidence that:
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1. An upset occurred and that the permittee can identify the specific cause(s) of
the upset;
2. The permitted facility was at the time being properly operated; and
3. The permittee submitted notice of the upset as required in paragraph (f) of
subsection (12) twenty-four (24) hour notice,
4. The permittee complied with any remedial measures required under subsection
(4) of this section.
(d) Burden of proof. In any enforcement proceeding the permittee seeking to
establish the occurrence of an upset has the burden of proof.
(15) Additional conditions applicable to specified categories of KPDES permits.
The following conditions, in addition to others set forth in this regulation apply to s21
KPDES permits within the categories specified below;
(a.) Existing manufacturing, commercial, raining, and silvicultural dischargers. In
addition to the reporting requirements under subsections (12), (13) and (14) of this section,
any existing manufacturing, commercial, mining, and silvicultural discharger shall notify
the director as soon as it knows or has reason to believe:
1. That any activity has occurred or may occur which could result in the
discharge of any toxic pollutant which is not limited in the permit, if that discharge may
exceed the highest of the following "notification levels:"
a. One hundred micrograms per liter (100 ug/1);
b. Two hundred micrograms per liter (200 ug/1) for acrolein and aerylonitrie;
five hundred micrograms per liter (500 ug/l) for 2,4-dinitrophenol and for 2-methyl-4,S-
dinitrophenol; and one milligram per liter (1 mg/l) for antimony?
c. Five (5) times the maximum concentration value reported for that pollutant in
the permit application in accordance with 401 KAR 5:060, Section 4(7) or 4(10);
d. The level established by the director in accordance with subsection (6) of
Section 2.
2. That it has begun or ejects to begin to use or manufacture as an intermediate
or final product or by-product any toxic'pollutant which wes not reported in the permit
application under 401*KAR 5:060, Section 40).
(b) POTWs. POTWs shall provide adequate notice to the director of the following
1. Any new introduction of pollutants into that POTW from an indirect discharger
which would be subject to the KPDES regulations if it were directly discharging those
pollutants; and
2. Any substantial change in the volume or character of pollutants being
introduced into that POTW oy a source introducing pollutants into the POTW at the time
of issuance of the permit.
3. For purposes of this paragraph, adequate notice shall include information on:
the quality and quantity of effluent introduced into the POTW; and, any anticipated
impact of the change on the quantity or quality of effluent to be discharged from the
POTW.
Section 2. Establishing permit conditions. For the purposes of this section, perm::
conditions include any statutory or regulatory requirement which takes effect prior to the
final administrative disposition of a permit. An applicaoie requirement may be any
requirement which takes effect prior to the modification or revocation or reissuance of a
permit, to the extent allowed in 401 KAH 5:070, Section 6. New or reissued permits, and
to the extent allowed under 401 KAF* 5:070, Section 6 modified or revoked and reissue;;
permits, shall incorporate each of the applicable requirements referenced in this secticr..
In addition to the conditions established under section 1 of this regulation eacn KPDES
permit will include conditions meeting the following requirements as applicable.
(1) Technology-based effluent limitations and standards, new source performance
standards: and pretreatrnent requirements and standards, as required by 40 CFR. Chapter
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I, Subehapter N, are incorporated by reference as specified in Section 4 of regulation,
or ease-by-case effluent limitations and standards .and pretreatment requirements or
based on a combination of those standards in accordance with 401 KAS 5:080, Section 1(2)
will be included, as applicable. Compliance with these effluent limitations and standards
will constitue compliance with 401 KAR 5:035 and 401 EAR 5:Q4S.
(2) Other effluent limitations and standards K2S 224 shall be included applicable.
If any applicable toxic effluent standard or' prohibition, including' any schedule of
compliance specified in effluent standard or prohibition, is promulgated by EPA for a
toxic poEutant and that standard or prohibition is mort stringent than any limitation on
the pollutant in the permit, the director win institute proceedings under these regulations
to modify or revoke and reissue the permit to conform to the toxic effluent standard or
prohibition.
(3) Reopener clauses for any discharger within a primary industry category, as
listed in 401 KAR §jQ6Q, 10, requirements under the KPDES regulations will be
incorporated as applicable, AS foHowss
(a). On or before June 30, 1981: 1, If applicable standards or limitations h&ve not
yet been promulgated, the permit will include a condition stating- that if an applicable
standard or limitation Is promulgated by EPA ssid that effluent standard or limitation is
more stringent than any effluent limitation in the permit or controls a pollutant not
limited in the permit, the permit will be promptly modified or revoked and reissued to
conform to that effluent standard or limitation.
2. If applicable standartls or limitations have been promulgated or approved, the
permit will include those standards or limitations,
(b) After June 30, 1981, any permit issued will include tfflnent limitations and t
compliance schedule to meet the applicable requirements indicated in Section l(l)(b) of
this regulation, whether, or not applicable effluent limitations guidelines have been
promulgated or approved by EPA, These permits need net incorporate the clause required
by paragraph (a) of subsection,
(c) The director will promptly modify or revoke and reissue any permit containing
the clause required under paragraph (a) of this subsection to incorporate an applicable
EPA effluent standard or limitation which is pronoulgmted or approved after the permit is
issued if that effluent standard or limitation is more stringent than any effluent limitation
in the permit, or controls a pollutant not limited in the permit,
(4) Water quality sr.aflda.rds and state requirements shall be included as applicable.
Any requirements in addition to or mort stringent than EPA*s effluent limitations
guideline! or standards wiU be included, when necessary to:
(a) Achieve water quality standards established under KHS 224 and regulations
promulgated pursuant thereto;
(b) Attain or maintain ® specified water quality through wster quality related
effluent limits established under section 302 of CWA (33 U.S.C. Section 1312);
(c) Conform to applicable water quality requirements when the discharge affects
a other Kentucky;
(d) Incorporate any more stringent limitations, treatment standards, or schedule
of compliance requirements established under federal or state law or regulations in
accordance with section 301(b)(l)(C) of CWA (33 U.S.C. Section 1311(bXlXe).
(e) Ensure consistency with the requirements of any Kentucky Water Quality
Management Plan approved by EPA,
{£) Incorporate alternative effluent limitations or standards whert warranted by
"fundamentally different factors," under 401 KAR 5:080, Section S,
(5) Tosie pollutants: Limitations established under subsections (1), (2), or (4) of
this section, to control pollutants meeting the criteria listed in paragraph (a) of this
subsection will be included in the permit, if applicable. Limitations will be established in
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accordance with paragraph (b) of this subsection. An explanation of the development of
these limitations will be included in the fact sheet under 401 KAR 5:075, Section 5.
(a) Limitations will control all toric pollutants which:
1. The director determines, based on information reported in a permit application
under 401 KAR 5=060, Section 4(7} or 4(10), or in a notification under Section i(15)(a) of
this regulation or on other information, are or may be discharged "at a level greater than
the level which can be achieved by the technology-based treatment requirements
appropriate to the permittee under 401 KAR 5:080, Section l(2Xc); or
2. The discharger does or may use or manufacture as an intermediate or final
product or byproduct.
(b) The requirement that the limitations control the pollutants meeting the
criteria of paragraph (a) of this subsection will be satisfied byi
1. Limitations on those pollutants; or
2. Limitations on other pollutants which, in the judgement of the director, will
provide treatment of the pollutants under paragraph (a) of this subsection to the levels
required by 401 KAR 5:080, Section l(2)(c).
(6) Notification level; a "notification level" which exceeds the notification level
of Section l(l5)(e)a,b, or c of this regulation, upon a petition from the permittee or on the
director's initiative will be incorporated as a permit condition, if applicable. This new
notification level may not exceed the level which can be achieved by the technology-
based treatment requirements appropriate to the permittee under 401 KAR 5:080, Section
Z(2)(c).
(7) Twenty-four (24) hour reporting: Pollutants for which the permittee will report
violations of maximum daily discharge limitations under section lCl2)(f) of this regulation
(twenty-four (24) "hour reporting) shall be listed as such in the permit. This list will
include any toxic pollutant or hazardous substance, or any pollutant specifically identified
as the method to control a toxic pollutant or hazardous substance.
(8) Monitoring requirements: The permit will incorporate, as applicable in
addition to subsection (12) of Section 1 of this regulation, the following monitoring
requirements:
(a) To assure compliance with permit limitations, requirements to monitor;
1. The mass, or other measurement specified in the permit, for each pollutant
limited in the permit;
2. The volume of effluent discharged from each outfall;
3. Other measurements as appropriate; including pollutants in internal waste
streams under Section 3(9) cf this regulation; pcllLitints ir. ir.tij-re -THter fcr net 1:.—itsticns
under Section 3(8) of this regulation; frequency, rate of discharge, etc., for noncontinuous
discharges under Section 3(5) of this regulation; and pollutants subject to notification
requirements under Section l(lS)fa) of this regulation.
4. According to test procedures approved under 40 CFR Part 136 for the analyses
of pollutants having approved methods under the federal regulation, and according to £
test procedure specified in the permit for pollutants with no approved methods.
(b) Requirements to report monitoring results with a frequency dependent on the
nature and effect of the discharge, but in no case less than once a year.
(9) pretreatment program for POTWs. If applicable to the facility the permit will
incorporate as a permit condition, requirements for POTWs to:
(a) Identify, in terms of character and volume of pollutants, any significant
indirect dischargers into the POTW subject to pretreatment standards under the KPDES
regulations.
(b) Submit a local program when required by and in accordance with "Section 9 cf
401 KAR 5:055 to assure compliance with pretreatment standards to the extent applicable
in the KPDES regulations. The local program will be incorporated into the permit as
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1. For pH, temperature, radiation, or other pollutants which cannot appropriately
be expressed by mass;
2. When applicable standards and limitations are expressed in terms of other
units of measurement; or
3. If m establishing permit limitations on a ease-by-casa basis under 401 KAB.
5:080, Section l, limitations expressed in terms of mass are irifeasihfo because the mass of
the pollutant discharged cannot be related to a measure of operation, for example,
discharges of TSS from certain mining operations, and permit conditions ensure that
dEution wfll not be us«d as a substitute for treatment.
{b). Pollutants limited in terms of mass additionally may b« limited in terms of
other units of measurement, and the permit wCLl require the permittee to comply with
both limitations.
(7) Pollutants in intake water. Except &s provided in subsection (8) of this
section, effluent limitations imposed in permits wiH not be adjusted for pollutants in the
intake water.
(8) Net limitations, (a) Upon request of the discharger, effluent limitations or
standards imposed in a permit will b« calculated on a net basis; that is, adjusted to reflect
credit for pollutants in the discharger's intake water, if the discharger demonstrates that
its intake water is drawn from the same body of water into which the discharge is made
and if:
l.a. The applicable federally promulgated effluent limitations and standards
specifically provide that they will be applied on a net basis; or
b. The discharger demonstrates that pollutants present in the intake water will
not b* entirely removed, by the treatment systems operated by the discharger; and
. 2. The permit contains conditions requiring?
a~ The permittee to conduct additional monitoring, for example, for flow and
concentration of pollutants, as necessary to determine continued eligibility for and
compliance with any such adjustments; and
b. The permittee to notify the director if eligibility for art adjustment under this
section has been altered or no longer exists. In that ease, the permit may be modified
accordingly under Section 6 of 401 KAR 5:070.
(b) Permit effluent limitations or standards adjusted under this paragraph will be
calculated on the basis of the amount of pollutants present after any treatment steps have
been performed on the intaJce water by or for the discharger. Adjustments under this
subsection will be given only to the extent that pollutants in the intake water which are
limited in the permit are not removed by the treatment technology employed by the
discharger. In addition, effluent limitations or standards will not be adjusted to the
extent that the pollutants in the intake water vary physically, chemically, or biologically
from the pollutants limited in the permit. Nor will effluent limitations or standards be
adjusted to the ertent that the discharger significantly increases concentrations of
pollutants in the intake water, even though the total amount of pollutants might remain
the same,
(9) Internal waste streams, (a) When permit effluent limitations or standards
imposed at the point of discharge are impractical or infeasibie, effluent limitations or
standards for discharges of pollutants may be imposed on internal waste streams before
mixing with other waste streams or cooling water streams. In those instances, the
monitoring required by Section 2, subsection (8) of this regulation shall also be applied to
the internal waste streams,
(b) Limits on internal waste streams will be imposed only when the fact sheet
under 401 KAR 5:075, Section 4 sets forth the exceptional circumstances whictf make such
limitations necessary, such as when the final discharge point is inaccessible, for example,
under 10 meters of water, the wastes at the point of discharge are so diluted as to make
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monitoring impracticable, or the interferences among pollutants at the point of discharge
would make detection or analysis impracticable.
(10) Disposal of pollutants into wells, into POTWs, or by land application. Permit
limitations and standards shall be calculated as provided in 401 KAH 5:0*55, Section 6.
(11) Secondary treatment information- Permit conditions thai involve secondary
treatment will be written as provided in 40 CFR Part 133, revised as of July 1, 1982, as
published by the Office of the Federal Register, National Archives and Register Services,
General Services Administration and available from the Superintendent of Documents,
UJ>. Government Printing Office Washington, D.C. 20402, is hereby incorporated by
reference.
Section 4. Federal Effluent Limits tipps and Standards and New Source Performance
Standards Incorporations. (1) 40 CFR Chapter I, Subciiapter N, Parts 400 - 424 and Par:
425 - 460, revised as of July 1, 1982, as published by the Office of the Federal Register,
National Archives and Register Services, General Services Administration and available
from the Superintendent of Documents, U.S. Government Printing Office Washington,
D.C. 204C2, is hereby incorporated by reference.
(2) Federal Registers Incorporated. Ln addition to subsection (1) of this section,
also incorporated by reference are additions, amendments and corrections to this
codification, as published in the following Federal Registers:
Federal
Industry 40 CFR Part Register Date
Coal Mining 434
Cofl Coating ' 465
(Phase I)
Inorganic Chemicals 415
(Phase I) —
Iron and Steel 420
Manuf.
Leather Tanning 425
and Finishing
Ore Mining 440
Petroleum 419
Refining
Porcelain 466 47 FR 53172 11/24/82
Enameling
Pulp and Paper 430 47 FR 52006 11713/82
Steam-Electric 423 47 FR 52290 11/19/82
Textile Mills 410 47 FR 38810 09/02/82
Section 5. Date of applicability. The provisions of this regulation shall become
effective upon the date of program approval.
47- FR 45332
47 FR 54232
47 FR 2S250
47 FR 41738
47 FR 52848
47 FR 545SS
47 FR 46434
10/13/82
12/1/82
06/29/82
09/22/82
11/23/82
12/3/82
10/18/82
JACKIE SW1GART, SECRETARY
P.ecom mended for approval by the Kentucky Administrative Regulations Review
Subcommittee, pursuant to KRS Chapter 13.087, on May 26, 19S3.
R-eecmmendatiori upheld by the Legislative Research Commission, pursuant to KRS
Chapter 13, on June 1, 19S3.
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NATURAL RESOURCES AND ENVIRON MENTAL
Protection Cabinet
Department for Environmental Protection
Division of Water
401 KAR 5:070. Provisions of the KPDES permit,
RELATES TO: KRS Chapter 224
PURSUANT TO: KRS 13.082, 224.020, 224.033(19), (21), (22), (23), 224.034(1), (4)
and 224.080.
NECESSITY AND FUNCTION: KRS 224.034(1) provides that the natural resources
and environmental protection cabinet may issue federal permits pursuant to 33 U.S.C,
Section 1342(b) of the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et.
seq.) subject to the conditions imposed in 33 UJS.C. Section 1342(b) and 1342(d). KRS
224.034(1) requires that any exemptions granted in the issuance of NPDES permits shall be
pursuant to 33 U.S.C, Section 1311, 1312 and 132S(a). Further EELS 224.034(4) requires
that the cabinet shall not impose under any permit issued pursuant to this section any
effluent limitation, monitoring requirement or other condition which is more stringent
than the effluent limitation, monitoring requirement or other condition which would have
been applicable under the federal regulation if the .permit were issued by the federal
government. This regulation contains the basis for provisions, terms, and effect of a
KPDES permit, including permit duration, schedule of compliance, and basis for permit
modification, revocation and reissuance. „".
Section l. Duration of permits. (1) KPDES permits will be effective for a fired
term not to exceed five (5) years. Except as provided in 401 KAB 5:060, Section l(4)(b),
the term of a permit will not be extended by modification beyond this maximum duration.
The director may issue a permit for & duration that is less than the full five (5) year term.
(2) A permit may be issued for the full term If the permit includes effluent
limitations and a compliance schedule to meet the requirements of 401 KAR 5:080,
Section 1(2)2 c, d and e whether cr net applicable f^dern! tffluest limitations guidelines
have been promulgated or approved.
Section 2. Schedules of compliance. (1) The permit may, when appropriate, specify
a schedule of compliance leading to compliance with KRS 224 and regulations
promulgated pursuant thereto.
(a) Time for compliance. Any schedules of compliance under this section will
require compliance as soon as possible. In addition, scnedules of compliance will require
compliance not later than the applicable statutory deadline as specified in 401 KAR 5:080.
(b) The first KPDES permit issued to a new source, a new discharger which
commenced discharge after August 13, 1979, or & recommencing discharger will not
contain a schedule of compliance under this section.
(c) Interim dates. Except as provided in subparagraph (2)(a)2 of this section, if a
permit establishes a schedule of compliance which exceeds one (1) year from the date of
permit issuance, the schedule will set forth interim require:nents and the dates for their
achievement.
1. The time between interim dates will not exceed one (1) year.
2. If the time necessary for completion of any Interim requirement, such as the
construction of e control facility, is more than one (1) year and is not readily divisible into
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stages for completion, the permit will specify interim dates for the submission of
of progress toward completion of the interim requirements and Indicate a projected
completion date.
(d) Reporting:. The permit will be written to require that ao later than fourteen
(14) days following each interim date and the final date of compliance, the permittee shall
notify the director in writing of its compliance or noncompliance with the interim or final
requirements, or submit progress reports.
(2) Alternative schedules of compliance. A KPDES permit applicant or permittee
may cease conducting regulated activities, by termination of direct discharge for EPDES
sources, rather than continue to operate and meet permit requirements as follows:
(a) If the permittee decides to cease conducting regulated activities at a given
time within the term of a permit which has already been issued:
1. The permit may be modified to contain a new or additional schedule leading to
timely cessation of activities; or
2. The permittee shall cease conducting permitted activities before
noncompliance with any interim or final compliance schedule requirement already
specified in the permit.
(b) If the decision to cease conducting regulated activities is made before
issuance of a permit whose term will include the termination date, the permit wfll contain
a schedule leading to termination which will ensure timely compliance no later than the
statutory deadline,
(c) If the permittee is undecided whether to cease conducting regulated activities,
the director may issue or modify a permit to contain two schedules as follows:
L Both schedules will contain an identical interim deadline requiring a final
decision on whether to cease conducting regulated activities no later than a date which
" ensures sufficient time to comply with applicable requirements in a timely manner if the
decision is to continue conducting regulated activities?
2. One schedule wiU lead to -timely compliance no later than the deadline
contained in 401 EAR 5:080;
3. The second schedule will lead to cessation of regulated activities by a oate
which will ensure timely compliance no later than the deadline, specified in 401 EAR
5:080.
4. Each permit containing two schedules will include a requirement that after the
permittee has made a final decision under subparagraph 1 of this paragraph it shaH follow
the schedule leading to compliance if the decision is to continue conducting regulated
activities, and follow the schedule leading to termination if the decision is to cease
conducting regulated activities.
(d) The applicant's or permittee's decision to cease conducting regulated activities
shall be evidenced by a firm public commitment satisfactory to the director, such as a
resolution of the board of directors of a corporation.
Section 3, Requirements for recording and reporting of momtoring results. All
permits will specify:
CD Requirements concerning the proper use, maintenance, and installation, when
appropriate, of monitoring equipment or methods, including biological monitoring methods
when apprepriate;
(2) Required monitoring including type, intervals, and frequency sufficient to
yield data which are representative of the monitored activity including, when appropriate,
continuous monitoring;
(3) Applicable reporting- requirements based upon the impact of th« regulated
activity and as specified in 401 KAR 5:065, Sections 1 and 2. Reporting shall be no less
frequent than specified In the above section.
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Section 4. Effect of a permit- (1) Except for any toxic effluent standards and
prohibitions included in 401 KAH 5:065, Section UlXb), compliance with a KPDES permit
during its term constitutes compliance, for purposes of enforcement, with the KPDES
program. However, a permit may be modified, revoked and reissued, or terminated during
its term for cause as set forth in Sections S and 7 of this regulation.
(2) The issuance of 8 permit does not convey any property rights of any sort, or
any exclusive privilege.
(3) The issuance of a permit does not authorize any injury to persons or property
or invasion of other private rights, or any infringement . of state or local law or
regulations.
Section S. Transfer of permits. (1) Transfers by modification- Except as provided
in subsection (2) of this section, a permit may be transferred by the permittee to a new
owner or operator only if the permit has been modified or revoked and reissued, under
Section S of this regulation, or if a minor modification has been made to identify the new
permittee and incorporate such other requirements as may be necessary under the KPDES
regulations,
(2} Automatic transfers. As an alternative to transfers under subsection (1) of
this section, any KPDES permit may be automatically transferred to a new permittee if;
(a) The current permittee notifies the director at least thirty (30) days in advance '
of the proposed transfer date in paragraph (b) of this subsection;
(b) Tht notice • includes a written agreement between the existing and new
permittees containing a specific date for transfer of permit responsibility, coverage, and
liability between them,
(c) The director does not notify the easting permittee and the proposed new
permittee of an intent to modify or revoke and reissue the permit. A modification under
this subparagraph may also be a minor modification under Section 6(3) of this regulation.
If this notice is not received, the transfer is effective on the date specified in the
agreement mentioned in paragraph (b) of this subsection.
(3) If a new KPDES permit is prepared as a result of either subsection (1) or (2) of
this section, then the new permittee shall be subject to the "Duplicate Permit Fee" as
specified in 401 KAE 5:085, Section 5.
Section 6. Modification or revocation and reissuance of permit. When the director
receives any information the director may determine whether cr not one or more of the
causes^ listed in subsections (1) and (2) of this section for modification or revocation and
reissuance or both, exist. If cause exists, the director may modify or revoke and reissue
the permit accordingly, and may request an updated application if necessary. When a
permit is modified, only the conditions subject to modification are reopened. If a permit
is revoked and reissued, the entire permit is reopened and subject to revision and the
permit is reissued for a new term. If cause does not exist under this section, the director
shall not modify or revoke and reissue the permit. If a permit modification satisfies the
criteria in subsection (3) of this section for "minor modifications" the permit mey be
modified without a draft permit or public review. Otherwise, a draft permit must be
prepared and other procedures in 401 EAR 5:075 must be foEowed,
(1) Causes for modification. The following are causes for modification but not
revocation end reissuance of permits unless the permittee agrees to revocation and
reissuar.ce as well as modification of a permit.
(a) Alterations. If there are material and substantial alterations* or additions
made to the permitted facility or activity which occurred after permit issuance, such
alterations may justify the application of permit conditions that are different or absent in
the existing permit.
(b) Information. If the director has received information, cause may exist for
modification, KP2ES permits may be modified curing their terms for this cause only ::
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the information was not available at the- time of permit issuance, except for revised
regulations, guidance or test methods which would have justified application of different
conditions at the tame of permit issuance. In addition, the applicant must show that the
information would have justified the application of different permit conditions at the time
of issuance. For KPDES general permits this cause shall include any information
indicating that cumulative effects on the environment are unacceptable,
(c) New regulations. If the standards or regulations on which the permit was
based have been changed by promulgation of amended standards or regulations or by
judicial decision after the permit was issued then cause may exist for modification.
However, the permit may be.modified only as follows^
1. For promulgation of amended standards or regulations, when:
a. The permit condition requested to be modified was based on EPA effluent
limitation guidelines or water quality standards; and
b. EPA has revised, withdrawn, or modified that portion of the regulation or
effluent limitation guideline or has approved a cabinet action with regard to a water
quality standard on which the permit condition was based; and
c, A permittee requests modification in accordance with Section 2 of 401 KAJl
S;Q75, within ninety (90) days after the amendment, revision or withdrawal is
promulgated.
2, For judicial decisions, a court of competent jurisdiction has remanded and
stayed EPA promulgated effluent limitation guidelines, if the remand and stay concern
that portion of the guidelines on which the permit condition was based and a request is
filed by the permittee in accordance with Section 2 of 401 KAJt 5^)75 within ninety (90)
days of judicial remand.
(d) Compliance schedules. A permit may be modified if the director determines
good cause esists for modification of a compliance schedule, based on an tet of God,
strike, flood or materials shortage or other events over which the permittee has little or
no control and for which there is no reasonably available remedy. However, in no case
will a KPDES compliance schedule be modified to extend beyond KH applicable statutory
deadline in 401 KAR 5:080.
(e) In addition the director may modify a permit:
1. When the permittee has fued a request for a variance under 401 KAR 5:055,
Section 7 or for "fundamentally different factors" within the time specified in 401 KAR
5:080, Section 3 and the director processes the request under the applicable provisions.
2, When required to incorporate an applicable torie effluent standard or
prohibition under 401 KA~R 5:065, Secticn 2(2).
3, When required by the "reopener" conditions in a permit, which are established
in the permit under Section 2(3) of 401 KAR 5:065, for toxic effluent limitations, of 401
KAB. 5:065, Section 2 (40 CFR 403.1Q(e), pretreatment program).
4. Upon request of a permittee who qualifies for effluent limitations on a ne:
basis under Section 3(8) of 401 KAE 5;055.
5. When & discharger is no longer eligible for net limitations, as provided in
section £[2] (8)(a)2.b. of 401 KAR 5:065.
6."" As necessary under EPA effluent limitations guidelines concerning compliance
schedule 'or development of a pretrestment program,
7. When the level of discharge of any pollutant which is not limited in the permit
exceeds the level which can be achieved by the technology-based treatment requirements
appropriate to the permittee under 401 KAR 5:080, Section l(2)(c).
8. When the permittee begins or expects to begin to use or manufacture as an
intermediate or final product or byproduct any toxic pollutant which was noi reported in
the permit application under 401 KAK 5:060, Section 4.
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9. To establish a "notification level" as provided in Section 2(6) of 401 KAK
5;065.
10. To modify a schedule of compliance to reflect the time lost during the
construction of an innovative or alternative facility, in the case of the POTW which has
received a grant under CWA 202 (a)(3) (33 U.S.C. Section 1282(a)(3» for 100% of the cost
to modify or replace facilities constructed with a grant for innovative or alternative
waste wafer technology under- CWA Section 202(a)(2) (33 UjS.C. Section 1282(a)(2)). In no
case will the compliance schedule be modified to extend beyond an applicable statutory
deadline for compliance indicated in 401 KAR 5:080.
11. Upon failure of the director to notify an affected state whose waters may be
affected by a discharge from Kentucky.
(2) Causes for mo
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(2) The director will follow the applicable procedures of 401 KAK 5:075 in
terminating a KPDES permit under this section.
Section 8. Date of appti cab City. The provisions of this regulation shell become
effective upon the date of program approval.
JACKIE SWIGART, SECRETARY
Recommended .for approval by the Kentucky Administrative Regulations Review
Subcommittee, pursuant to KE5 Chapter 13.087, on May 26, 1983.
Recommendation upheld by the Legislative Research Commission, pursuant to KHS
Chapter 13, on June 1, 1983.
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NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Environmental Protection
Division of Water
401 5:075. Cabinet Review Procedures for Permits
RELATES TO: KRS Chapter 224,005; 224.033 (5), (9) and (23).
PURSUANT TO: KRS 13.08:, 224.020, 224.033 (8), (11), (IS), (22), 224.034, and
224.081, 083, 085.
NECESSITY AND FUNCTION: KRS 224.033(19) authorizes the natural resources
and environmental protection cabinet to issue, continue in effect, revoke, modify, suspend
or deny under such conditions as the cabinet may prescribe, permits to discharge into any
waters of the commonwealth. KRS 224.034(1) establishes that the cabinet may issue
federal permits pursuant to 33 UJ5.C, Section 1342(b) of the Federal Water Pollution
Control Act (33 O.S.C, Section 1251 et seq.) subject to the conditions imposed in 33
UJs.C. Section 1342(b) and 1342(d), This regulation sets forth the procedures through
which the cabinet will follow in receiving permit applications, preparing draft permits,
issuing public notice, inviting public comment and holding public hearings on draft
permits*
Section 1. Review of the Application, (1) Any person who requires a permit under
the KPDES program shall complete, and submit to the director an application for the
permit as required under 401 KAE S.-060, Section 1. Applications are not required for
KPDES general permits. However, operators who elect to be covered by a general permit
shaJl submit written notification to the director at such time as the director indicates in
Section 3 of this regulation,
(2) The director will not begin the processing of a permit until the applicant has
fully complied with the application requirements for the permit, as required by 401 KAR
5:060, Section 1.
(3) Permit applications shall comply with the signature and certifieaticn
requirements of 401 KAR 5:060, Section 3.
(4) The director will review for completeness every afjpliestion for a EPDES
permit. Each application submitted by a KPDES new source or KPDES new discharger
will reviewed for completeness by the director within thirty (30) days of its receipt.
Each application for a KPDES permit submitted by an existing source will be reviewed for
completeness within sixty (60) days of receipt. Upon completing the review, the director
will notify the applicant in writing whether the application is complete. If the application
is incomplete, the director will list the information necessary to make the application
complete. When the application is for an existing source, the director will specify in the
notice of deficiency a date for submitting the necessary information. The director will
notify the applicant that the application is complete upon receiving this information.
After the application is completed, the director may request additional information from
an applicant when necessary to clarify, modify, or supplement previously submitted
material. Requests for such additional information will not render an application
incomplete.
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(5) If an applicant fails OF refuses to correct deficiencies in the application, the
permit may be denied and appropriate enforcement actions may be taken under KRS 224
and regulations promulgated pursuant thereto.
(6) If the director decides that a site visit is necessary for any reason in
conjunction with the processing of en application, the director will notify the applicant
and a date will be scheduled.
(7) The effective date of an application is the date on which the director notifies
the applicant that the application is complete as provided in subsection (4) of this section.
(8) For each application from a major facility new source, OP major facility new
discharger, the director will no later than the effective date of the application, prepare
and mail to the applicant a project decision schedule. The schedule will specify target
dates by which the director intends to:
(a) Prepare a draft permit;
(b) Give public notice;
(c) Complete the public comment period, including any public hearing;
(d) Issue a final permit; and
(e) Complete any formal proceedings under this regulation,
(9) Conflicts of interest, (a) The director who issues a permit will be subject to
the KPDES policy memorandum concerning" conflicts of interest.
(b) Any person aggrieved by the issuance of a permit under the KPDES regulations
may challenge the permit pursuant to-Section 13 if the policy memorandum has t>een
violated.
(c) The hearing officer wQl remand any permit issued in violation of the policy
memorandum to the cabinet for reconsideration.
(d) Following1 remand, any cabinet employee who reconsiders the permit will be
subject to the policy memorandum set forth in paragraph (a). The reconsideration will
require a new public comment period and public hearing only if information offered during
earlier permit proceedings was excluded by the director as a direct result of a conflict of
interest.
Section 2. Review proeedis-es - for permit modification, revocation and reissuanee,
or termination,
(1) Permits may b« modified? revoked and reissued, or terminated either at the
request of any interested person, including the permittee, or upon the director's initiative.
However, permits may only be modified, revoked and reissued, or terminated for the
reasons specified in 401 KArl 5:070, Seeuon 6 or 7. All requests snail be in writing^ano
shall contain facts or reasons supporting the request.
(2) If tiie director decides tbe request is not justified, the director wOl send the
requester a brief written response giving a reason for the decision. Denials of requests
for modification, revocation and reissuance, or termination are not subject to public
notice, comment, or hearings,
(3) If the director tentatively decides to modify or revoke and reissue a permit
under 401 KAB. 5:070, Section 6, the director shall prepare a draft permit under Section 3
of this regulation incorporating the proposed changes. The director may request
additional information and, in the case of a modified permit, may require the submission
of an updated permit application. In the case of revoked and reissued permits, the
director will require the submission of a new application.
(a) In a permit modification under this section, only those conditions to be
modified wiU be reopened when a new draft permit is prepared. All other asptects of the
existing permit will remain in effect for the duration of the unmodified permit. When a
permit is revoked and reissued under this section, the entire permit is reopened as if the
permit had expired and was being reissued. During any revocation and reissuanee
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proceeding, the permittee shall comply with all conditions of the existing permit until a
new final permit is reissued.
(b) "Minor modifications" as defined in 401 KAR 5:070, Section 6(3) are not
subject to the requirements of this section,
(4) If the director tentatively decides to terminate a permit under 401 KA-R 5:070,
Section 7, the director will issue a notice of intent to terminate, A notice of intent to
terminate is a type of draft permit which follows the same procedure as any draft permit
prepared under Section 3 of this regulation,
Section 3. Draft permits, (l) Once an application is complete, the director will
tentatively decide whether to prepare a draft permit or to deny the application.
(2) If the director makes a preliminary decision to deny the permit application,
the director will issue a notice of intent to deny, A notice of intent to deny the permit
application is a type of draft permit which follows the same procedure as any draft permit
prepared under this section. If the director's determination under Section 11, is that the
preliminary decision to deny the permit application was incorrect, the director will
withdraw the notice of intent to deny and proceed to prepare a draft permit under
subsection 4 of this section.
(3) If the director makes a preliminary decision to issue a KPDES general permit,
the director will prepare a draft general permit in accordance with subsection 4 of this
section.
(4) If the director decides to prepare a draft permit, the director wiU prepare a
draft permit that contains the following information:
(a) All conditions under 401 KAR 5:065, Section 1;
(b) All compliance schedules under 401 KAR 5:070, Section 2;
(c) All monitoring requirements under 401 KAR 5:070, Section 3; and
(d) .Effluent limitations, standards, prohibitions and conditions under 401 KAR
5:060, 401 KAR 5:065, 401 KAR 5:070^. 401 KAR 5:075 and 401 KAR 5:080 and all
variances that are to be included.
(5) All draft permits prepared by the cabinet under this section will be
accompanied by a fact sheet and will be based on the administrative record, publicly
noticed, and made available for public comment. The director will give notice of
opportunity for a public hearing, issue a final decision and respond to comments. A
demand for a hearing may be made pursuant to KRS 224.081 and Section 13 of this
regulation following the issuance of a final decision.
Section 4. Fact sheets. (1) A fact sheet will be prepared foe every draft permit. for
a major KPDES facility or activity, for every KPDES general permit, for every KPDES
draft permit that incorporates a variance or requires an explanation under subsection (4)
of this section, and for every draft permit which the director finds is the subject of
widespread public interest or raises major issues. The fact sheet will briefly set forth the
principal facts and the significant factual, legal, methodological and policy questions
considered in preparing the draft permit. The director will send this fact sheet to the
applicant and, on request, to any other persons,
(2) The fact sheet will include, when applicable:
(a) A brief description of the type of facility or activity which is the subject of
the draft permit;
(b) A quantitative and qualitative description of the discharges describee in the
application;
Cc) A brief summary of the basis for the draft permit conditions including
references to applicable statutory or regulatory provisions:
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1. A statement that the thermal component of the discharge is subject to
effluent Limitations under 401 KAR 5:065, Section 2(1) and a brief description, including a
quantitative statement, of the thermal effluent limitations proposed under CWA section
301 or 306 (33 U.S.C. Sections 1311 or 1316); and
2. A statement that a 401 KAB. 5;Q55T Section 7(4) request has been filed and
that alternative less stringent effluent limitations may b« imposed on the thermal
component of the diseharg-e and a brief description, including a quantitative stateroent7 of
the alternative effluent limitations, if any, included in the request.
(5) In addition to the general public notice described in paragraph (4)(a) of this
section all persons identified in paragraphs (3)(a)l, 2, 3, and 4 of this section will be
majlad a copy of the fact sheet, the permit application (If any) aisd the draft permit (If
any).
Section 6. Public comments and requests for public hearings, T'uring the public
comment period provided under Section 5 of this regulation any interested person may
submit written comments on the draft permit and may request a. public hearing, if no
hearing has already been scheduled, A request for a public hearing- shall be in writing and
shall state the nature- of the issues proposed to be raised in the bearing. All comments
will be considered in making the final decision and shall be answered as provided in
Section 12 of this regulation.
Section 7. Public hearings,, (1) The director will hold a public bearing wben &
significant degree of public interest in a draft permit is found on the basis of requests.
The director also may hold a public hearing at his or her discretion, .whenever, for
instance, such a hearing might clarify one or more issues involved in the permit decision,
(2) .Public notice of the hearing will be given as specified in Section 5 of *hk
regulation, .• •
(3) Any "person may submit oral or written statements and data concerning tte
draft permit. Reasonable limits, may be" set upon the time allowed for oral statements,
and the submission of statements in writing may be required. The public comment period
under Section 5 of this regulation will automatically be extended to the close of any
public hearing under this section. The hearing officer may also extend the comment
period by so stating at the hearing.
(4) A tape recording or written transcript of the hearing shall be made available
to the public,
Section 8. Obligation to raise issues and provide information dining the public
comment period. All persons, including applicants, who believe any condition of & draft
permit is inappropriate or that the director's preliminary decision to deny an application,
terminate a permit, or prepare a draft permit is inappropriate, shall raise all reasonably
ascertainable issues and submit all reasonably available arguments and factual grounds
supporting their position, including all supporting material, by the close of the public
comment period including any public hearing under section 5 of this regulation. All
supporting materials shall be included in full and may not be incorporated by reference,
unless .they consist of state or federal statutes and regulations, EPA or the cabinet's
documents of general applicability, er other generally available reference materials.
Commenters shall make supporting material not already included in the record available
to the cabinet as directed by the director. A comment period longer than 30 days may be
necessary in complicated proceedings to give commented a reasonable opportunity to
comply with the requirements of this section, Commenters may request longer comment
periods and they should be freely established under Section 5 of this regul&t'ion to the
extent. Nothing in this section shall be construed to prevent any person aggrieved by a
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final permit decision from filing a demand for a hearing under KR.S 224.081 and Section
13 of this regulation.
Section 9. Conditions requested by the Corps of Engineers and other government
agencies,
(1) If during the comment period for a KPDES draft permit, the District Engineer
of the Carpi of Engineers advises the director In writing that anehoragt and navigation "of
any of the waters of the commonwealth would be substantially impaired by the granting cf
a permit, the permit shall be denied and the applicant so notified. If the District Engineer
advises the director that imposing specified conditions upon the permit is necessary to
avoid any substantial impairment of anchorage or navigation, then the director will
include the specified conditions In the permit, Beview or appeal of denial of a permit or
of conditions specified by the District Engineer shall be made through the applicable
procedures of the Corps of Engineers, mid may not be made through the procedures
provided in this regulation, II the conditions are stayed by a court of competent
jurisdiction or by applicable procedures of the Corps of Engineers, those conditions win be
considered stayed in the KPDES permit for the duration of that stay.
(2) If during the comment period the U.S, Fish and Wfldllfe Service, the National
Marine Fisheries Service, or any other state or federal agency with jurisdiction over fish,
wfldlife, or public health advises the director in writing that the imposition of specified
conditions upon the permit is necessary to avoid substantial impairment of fish, Shellfish,
or wildlife resources, the director may include the specified conditions in the permit to
the extent they are determined necessary to carry out the provisions of ERS 224.
(3) In appropriate cases the director may consult with one or more of the agencies
referred to in this section before issuing a draft permit' and may reflect their views in the
fact sheet or the draft permit.
Section 10. Reopening of the public comment period, (1) If any data information or
arguments submitted during the public comment period appear to raise substantial new
questions concerning a permit, the director may take one or more of the following
actions:
(a) Prepare a new draft permit, appropriately modified, onder Section 3 of this
regulation;
(b) Prepare a revised fact sheet under Section 4 of this regulation and reopen the
comment period; or,
(c) Reopen" and extend the comment period under Section 5 to give interested
persons che opportunity to comment on the information or arguments suomittec.
(2) Comments filed during the reopened comment period shall be limited to the
substantial new questions that caused its reopening. The public notice under Section 5 of
this regulation should defini the scope of the reopening.
(3) Public notice of any of the above actions will be issued under Section 5.
Section 11. Issuance and effective date of permit. (1) After the close of the public
comment period under Section 5 of this regulation, the director wQl issue, deny, modify,
revoke, reissue or terminate a permit. The director will notify the applicant and each
person who has submitted written comments or requested notice of that determination.
This notice will include reference to the procedures for appealing the decision. For the
purpose of this section, a final permit decision shall mean a final decision to issue, deny,
modify, revoke and reissue, or terminate a permit.
(2) A final permit decision will become effective 30 days after tfle service of
notice of the decision under subsection {1} of this section, unless:
(a) A later effective date is specified in the decision; or
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(b) A stay is granted pursuant to KRS 224.081(2) and Section 13 of this regulation;
or
(c) No comments requested a change in the draft permit, in which ease the permit
will become effective immediately upon issuance.
(3) Th® order or determination which is a condition precedent to demanding e
hearing under KRS 224.081(2) and section 13 of this regulation shall be the final permit
decision. The thirty (3d) dsy appeal period shall on the date the order is entered by
the director and shaH not on the date the permit decision becomes effective.
Section 12. Basponse to comments. (1) At the time that any final permit decision
is issued under Section 11 of this regulation the director shall issue a response to
comments. This response will:
(a) Specify which provisions, if any, of the draft permit have been changed in the
final permit decision, and the reasons for the change; and
(b) Briefly describe and respond to all significant comments on the draft permit
raised during the public comment period or during1 any hearing. This response will fuHy
consider all comments resulting' from any hearing conducted under this regulation.
{e} The to comments wffi. be available to the public. Any demand for a
hearing on this response shall be filed according to procedures specified in KRS 224.081,
224.083, 224.085 and any regulations promulgated pursuant thereto,
Sectioa IS. Hearings under SSS 224,081. (1) A determination under Section 11
when issued by the director, will be subject to t demand for a hearing pursuant to KRS
224.081(2).
• (2) Any person aggrieved by the" issuance of a final permit aaacy demand a bearing
pursuant to KRS 224,081(2).
(3) Any hearing held pursuant to this section will be subject to the pro-risioas of
KRS and KRS 224.085. —.
(4) Failure to raise issyes pursuant to Section i of this regulation wd not preclude
an aggrieved person from making a demand for a hearing pursuant to ESS 224,081(2),
Section 14. Date of applicability. The provisions of this regulation become
effective upon the date of program approval.
Eecora for approval by the Kentucky Administrmtivt Eegulations Review
Subcommittee, pursuant to KRS Chapter 13.087, on May 26, 1983.
Recommendation upheld by the Legislative Research Commission, pursuant to KRS
Chapter 13, on June 1, 19S3.
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010223/86 DRAFT 11 12/26/1985
will forward a letter of acceptability to the community and proceed with
public notice requirements as specified in Chapter 90,48 RCW. Coordina-
tion of EPA input per the Memorandum of Understanding will also be
handled from headquarters. Final approval will require modification of
the municipality's NPDES permit. Administrative orders, if appropriate,
can be issued containing pretreatment implementation conditions. The
standard language to be used in NPDES permits is shown in Appendix 5.
Local Program Oversight:
Following local delegation. Ecology will monitor implementation of the
approved local programs. This will include carrying out independent
investigations of treatment plants and industrial discharges to determine
if the POTW is in compliance with the pretreatment conditions incorpo-
rated in their NPDES permit as well as to detenr:ne if industrial dis-
chargers are complying with pretreatment standards and requirements.
Annual audits will be the major oversight mechanism supplemented with
random inspections and sampling. Audits will include industrial inspec-
tions and joint sampling, A draft copy of an audit, checklist is provided
in Appendix 6. Audit requirements will be supplemented by POTW inspec-
tions as required for the NPDES program.
Approval of a local pretreatment program supplants the use of the state
issued pretreatment permits program in that area. However, the state
retains tbe option of taking enforcement action per WAC 173-216-050(1)(c)
If the city is not diligent in instituting its pretreatment program,
enforcement actions will be taken as appropriate against the city or
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010223/86 DRAFT 12 12/26/1985
against both the city and the industry. Enforcement will normally be
handled by regulatory order and/or civil penalties in the same fashion
now used for enforcing other NPDES permit conditions. Criminal penalties
will be sought If the situation warrants. Enforcement procedures are
explained in greater detail on page _,
Ecology may also provide technical assistance to the city in its enforcement
of pretreatment requirements for individual industrial users, to the
extent permitted by available resources. Legal council cannot be provided
by the state, but technical references pertaining to legal issues will be
made available when possible. Cities will be notified of pretreatment
program updates by Ecology headquarters.
Delegated local authorities will be required to provide annual reports to
the Department of Ecology indicating industrial pretreatment activities
for the previous year. The reports to the Department of Ecology will
include the copies of the published list of significant noncompliers in
the local newspaper. It shall provide a list of the inspections per-
formed by the PQTV and a list of new permits and draft permits being
issued by the POTW. Ecology will follow up with tne city if the data is
incomplete or questionable. If the annual repor'. indicates that the
community is not implementing its program, a special audit/inspection may
be scheduled. Ecology is creating a computerized system for updating and
maintaining a list on industrial users as submitted by POTVs and the
status of their permits in any given time.
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NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Environmental Protection
Division of Water
401 KAR 5:080. Criteria and Standards for the Kentucky PoUirtant Discharge
Elimination System
RELATES TO: KRS Chapter 224
PURSUANT TO: KRS 13.082, 224.026, 224.033(19), (21), (23), 224.034(1), (4),
224.050.
NECESSITY AND FUNCTION: KRS 224.033(19) authorizes the natural resources
and environmental protection cabinet to issue, continue in effect, revoke, modify, suspend
or deny under such conditions as the cabinet may prescribe, permits to discharge into any
waters of the commonwealth. KRS 224.034 provides that the cabinet may issue federal
permits pursuant to 33 U.S.C. Section 1342(b) of the Federal Water Pollution Control Act
(33 U.S.C. Section 1251 et seq.) subject to the conditions imposed in 33 U.S.C. Sections
1342(b) and 1342(d). This section further provides that any exemptions granted in the
issuance of KPDES permits shall be pursuant to 33 U.S.C. Sections is'll, 1312 and 132S(a).
This regulation sets forth the criteria and standards for the KPDES permitting system.
Section 1. Criteria and Standards for Technology-Based Treatment Requirements.
(1) Purpose and scope. This section establishes criteria and standards for the
imposition of technology-based treatment requirements in KPDES permits including the
application of EPA promulgatec effluent limitations and case-by-case determinations of
effluent limitations.
(2) Compliance with technology—based treatment requirements in KPDES permits.
(a) General. Technology-based treatment requirements represent the minimum level 01
control that will be imposed in a KPDES permit. Permits vnH contain the following
technology-based treatment requirements in accordance with the deadlines indicated
herein:
1. For POTW's effluent limitations based upon:
a. Secondary treatment as required by CV<"A Section 301{b)(l)(5) (30 U.5.C.
Section 1311(b)(l)(B)) - from date of permit issuance; and
b. The best practicable waste treatment technology as required by CWA Section
301(b)(l)(A) (33 U.S.C. Section 1311(b)Cl)(A)) - not later than'July 1/1933; and
2. For dischargers other than POTWs, except as otherwise provided in the KFDES
regulations, effluent limitations requiring:
a. The best practicable control technology currently available (BPT) as required
by CWA Section 301(b)(l)(A) (33 U.S.C. Section 13Il(b)(l)"(A)) - from date of permit
issuance;
b. For conventional pollutants, the best conventional pollutant control technology
(3CT) - not later than July 1, 1984;
c. For all toxic pollutants referred to in Section 5 of this regulation as required
by CWA Section 301(b)(2)(A) (33 U.5.C. Section l311(b)(2)(A)) the best available
technology economically achievable (BAT) - not later than July 1, 1284;
c1. For aU toxic pollutants other than those listed in Section 5 of this regulation
effluent limitations based on the BAT not Later than three (3) years aiter the date suc.h
effluent limitations are incorporated into a KPDES permit; and
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e, ' For all pollutants which are neither toxic nor conventional pollutants, effluent
limitations based on BAT not later than three (3) years after the date such effluent
Limitations are incorporated into a KPDES permit, or July 1, 1934, whichever is later, but
in no case later than July 1, 1987.
(b) Variances and extensions. !„ The following variance from technology-based
treatment requirements is authorized by KRS 224 and may be applied for under 401 KAE
5:055. For dischargers other than POTWs;
a. Economic variance from BAT, as indicated in 401 KAR 5:055, Section 7(1);
b. Thermal variance from BPT, BCT and BAT. under Section 4 of this regifiktkm,
may be authorized.
2. An extension of the BAT deadline may be applied for under 401 KAH 5:055,
Section 7(3) for dischargers other than POTWs, for use of innovative technology.
(c) Methods of imposing1 technology-based treatment requirements in permits.
Technology-based treatment requirements may be imposed through one of the following
three methods:
1. Application of EFA-promulgated effluent limitations to dischargers by
category or subeategory. These effluent limitations are not applicable to the extent that
they have been withdrawn by EPA or remanded. In the ease of a court remand,
determinations underlying- effluent limitations shall be binding in permit issuance
proceedings where those determinations are not required to be reeramined by a court
remanding the regulations. In addition, dischargers may seek fundamentally different
factors variances from these effluent limitations under 401 KAJR 5:055, and Section 3 of
this regulation.
2. On a case-by-case basis to the extent that EPA-promulgated effluent
limitations are inapplicable. The permit writer shall consider: •
au The appropriate technology for the category or class of point sources of which
the applicant is a member, based upon all available information, including EPA draft or
proposed development documents or guidance; and
b. Any unique factors relating to-the applicant.
3. Through a combination of the methods in paragraph (c)l and 2 of this section.
Where EPA promulgated effluent limitations guidelines only apply to certain aspects of
the discharger's operation, or to certain pollutants, other aspects or activities are subject
to regulation on a case~t>y-case basis in order to carry out the provisions of KRS 224.
4. Limitations developed under paragraph (c)2 of this section may be expressed,
where appropriate, in terms of toxicity if it is shown that the limits reflect the
appropriate requirements of KHS 224.
(d) Technology-based treatment requirements are applied prior to or at the point
of discharge.
(e) Technology -based treatment requirements cannot be satisfied through the use
of "non-treatment" techniques such as flow augmentation and in-stream mechanical
aerators. However, these techniques may be considered as a method of achieving water
quality standards on e ease-ijy-cese basis when:
1. The technology-based treatment requirements applicable to the discharge are
not sufficient to achieve the standards;
1. The discharger agrees-to waive any opportunity to request a variance under
401 KAK 5:055, Section 3;
3. The discharger demonstrates that such a technique is the preferred
environmental and economic method to achieve the standards after consideration of
alternatives such as advanced waste treatment, recycle and reuse, land disposal, changes
Li operating methods, and other available methods.
(f) Technology-based effluent limitations will be established under this regulation
for solids, sludges, filter backwash, and other pollutants removed in the course of
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treatment or control of waste waters in the same manner as for other pollutants,
(g)l. The director may set a permit limit for a conventional pollutant at a level
more stringent than the best conventional pollution control technology (BCT), or a limit
for a nonconventional pollutant which will not be subject to modification where:
a. Effluent limitations guidelines specify the pollutant as an indicator for a toxic
pollutant, or
b.(i) The limitation reflects B^T-level control of discharges of one or more toxic
pollutants which are present in the waste stream, and a specific BAT limitation upon the
toxic poUutant(s) is not feasible for economic or technical reasons;
(ii) The permit identifies which toxic pollutants are intended to be controlled by
use of the limitation; and
fiii) The fact sheet required by 401 KAR 5:075, section 4 sets forth the basis for
the limitation, including a finding that compliance with the limitations will result in BAT-
level control of the toxic pollutant discharges identified in paragraph (g)(l)(b)(ii) of this
section, and a finding that it would be economically or technically infeasible to directly
limit the toxic pollutant(s).
2. The director may set a permit limit for a conventional pollutant at a level
more stringent than BCT when:
a. Effluent limitations guidelines specify the pollutant as an indicator for a
hazardous substance, or
b.(i) The limitation reflects BAT-level control of discharges, or an appropriate
level of one or more hazardous substance(s) which are present in the waste stream, and a
specific EAT, or other appropriate limitation upon the hazardous substance which are
present in the waste stream, and a specific BAT, or other appropriate limitation upon the
hazardous substance is not feasible for economic or technical reasons;
(Li) The permit identifies which hazardous substances are intended to be controlled
by use of the limitation; and
(iii) The fact sheet, required by 401 KAR 5:075, Section 4, sets forth the basis for
the limitation, including a finding that co'mpliance with the limitations will result in BAT-
level, or other appropriate level, control of the hazardous substances discharges identified
in paragraph (g)l.b.{:i) of this section, and a finding that it would be economically or
technically infeasibie to directly limit the hazardous substance(s).
(iv) Hazardous substances which are also toxic pollutants are subject to paragraph
(g)(l) of this section.
3. The director may not set a more stringent limit under the preceding
paragraphs if the method of treatment required to comply with the limit differs from that
which would be required If the t~x:c pcll'jtar:t(s) sr hazarccus substznce(s) controlled by
the limit were limited directly.
4, Toxic pollutants identified under paragraph (g)l of this section remain subject
to 401 KAR 5:065, Section 1(15} which requires notification of increased discharges of
toxic pollutants above levels reported in the application form.
Section 2. Criteria for Issuance of Permits to Aquaculture Projects. (1) Purpose
and scope.
(a) This section establishes guidelines for approval of any discharge of pollutants
associated with an aquaculture project.
(b) This section authorizes, on a selective basis, controlled discharges which would
otherwise be unlawful under KR.S 224 in order to determine the feasibility of using
pollutants to grow aquatic organisms which can be harvested and used beneficially.
(c) Permits issued for discharges into aquaculture projects under this^section are
KPDES permits and are subject to all applicable requirements. Any permit will include
such conditions, including monitoring and reporting requirements, as are necessary to
comply with the KPDES regulations. Technology-based effluent limitations need not be
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applied to discharges into the approved project except with respect to toxic pollutants.
(2) Criteria- (a.) No KPDES permit wfll be issued to an aquaculture project
unless:
1. The director determines that the aquacuiture project
a. Is intended by t£e project operator to produce a crop which has significant
direct or indirect commercial value,or is intended to be operated for research into
possible production of such a crop; and
b, Does not occupy a designated project area, which £s larger than can be
economically operated for the crop under cultivation or than is necessary for research
purposes..
2. The applicant has demonstrated, to the satisfaction of the director, that the
use of the pollutant to be discharged to the aquaeulture project shall result in an
increased harvest of organisms under culture over what would naturally occur in the area;
3. The applicant has demonstrated, to the satisfaction of the'director, that if the
species to be cultivated in the aquaculture project is not indigenous to the immediate
geographical area, there shall be minimal adverse effects on the flora and fauna
indigenous to the area, and the total commercial value of the Introduced species is at
least equal to that of the displaced or affected indigenous flora md ikuna;
4. The director determines that the crop shall not have a significant potential for
human health hazards resulting from its consumption;
.5. The director determines that migration of pollutants from the designated
project area to waters of the commonwealth outside of the aquacnltrtre project will not
cause or contribute to a violation of the applicable standards and limitations applicable to
the supplier of the pollutant that would govern if the aquaeulture project were itself a
point source. The approval of an aquaculture project wHl not result in the enlarge merit of
a pre-existing" mining gone area btyond what had been designated for the original
discharge.
(b) No permit will be issued for any aquaculture project in conflict with a water
quality em«nt plan or an amendment to a plan approved by EPA.
(c) Designated project areas will not include a portion of a body of water larfi
enoufh to expose a substantial portion of the indigenous biota to the conditions within the
designated project area.
(c) Any pollutants not required by or benefical to the aquaeilture crop shall not
exceed applicable standards and limitations when entering the designated project area-
Section 3. Criteria mnd Standards for Determining' Fundamentally Different
Factors.
(1) Purpose and scope, (a) This section establishes the criteria and standards to
be used in determining whether effluent limitations or pretreatment standards alternative
to those required by promulgated EPA effluent limitations guidelines and categorical
pretreatment standards hereinafter referred to as "national limits", should be imposed on
a discharger because factors relating to the discharger's facilities, equipment, processes
or other factors related to the discharger are fundamentally different from the factors
considered by EPA in development of the national limits. This section applies to all
national limits promulgated by EPA except for best practicable treatment standards for
steam electric plants,
(b) This c&se-by-case review wfli only be done if data specific to that discharger
indicates it factors fundamentally different from those considered £y EPA in
developing the limit at issue. Any interested person believing that factors relating to t
dischargers facilities, equipment, processes or other facilities related to the discharger
are fundamentally different from the factors considered during the development of the
national limits may request a fundamentally different factors variance under.-401 KAR
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5:055, Section 3. In addition, such a variance may be proposed by the director in the craft
permit.
(2) Criteria, (a) A request for the establishment of effluent Limitations under
this section, fundamentally different factors variance, wiH be approved only if:
1. There is an applicable national limit which is applied in the permit and
specifically controls the pollutant for which alternative effluent limitations or standards
have been requested; and
2. Factors relating to the discharge controlled by the permit are fundamentally
different from those considered by EPA in establishing the national limit; and
3. The request for alternative effluent limitations or standards is made in
accordance with the procedural requirements of 401 KAR S;0?S.
(b) A request for the establishment of effluent limitations less stringent than
those required by national Emits guidelines will be approved only if:
L The alternative effluent limitation requested is not less stringent than
justified by the fundamental difference; and
2. The alternative effluent limitation or standard wfll ensaore compliance with the
KPDES regulations and KRS 224; and
3. Compliance with the national limits, either by using- the technologies upon
which the national limits are based or oy other control alternative, would result in:
a. A removal cost wholly out of proportion to the removal cost considered during
development of the national limits; or
b, A non-water quality environmental impact, including energy requirements,
fundamentally more adverse than the impact considered during development of the
national limits,
(c) A request for alternative limits more stringent than required by national limits
will be approved only if;
1. The alternative effluent limitation or standard requested is no more stringent
than justified by the fundamental difference; and
2, Compliance with the alternative effluent limitation or standard would not
result in:
a, A removal cost wholly out of proportion to the removal cost considered during
development of the national limits; or
b, A non-water quality environmental impact, including energy requirements,
fundamentally more adverse than the impact considered during development of the
national limits.
(d) Factors which may be considered fundamentally differ eat are:
1. The nature or quality of pollutants contained in the raw waste load of the
applicant's process wastewater;
2. The volume of the discharger's process wastewater and effluent discharged;
3. Non-water quality environmental impect of control and treatment of the
discharger's raw waste load;
4. Energy requirements of the application of control and treatment technology;
5. Age, size, land availability, and configuration as they relate to the discharger's
equip men;: or facilities; processes employed; process changes; and engineering aspects oi
the application of control technology;
6. Cost of compliance with required control technology.
(c) A variance request or portion of such a request under this section will not be
granted on any of the following grounds;
1, The infeasibiiity of installing the required waste treatment equipment within
the time allowed in Section 1 of this regulation.
2. The assertion that the national limits cannot be achieved with the appropriate
waste treatment facilities installed, if such assertion is not based on factor(s) listed in
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paragraph (d) of this section;
3. The'discharger's ability to pay for the required waste-treatment; or
4. The impact of a discharge on local receiving water quality.
(3) Method of application, (a) A written request for a variance under this
regulation shall be submitted m duplicate to the director in accordance with 401 KAr.
5:075.
(b) The burden is on the person requesting the variance to explain that:
1. Factors) listed in subsection 2 of this section regarding the discharger's
facility are fundamentally different from the factors EPA considered in establishing the
national limits. The requester shall refer to all relevant material and information, such as
the published guideline regulations development document, all associated technical and
economic data collected for use in developing each national limit, all records of legal
proceedings, arid aH written and printed documentation including records of
communication, etc., relevant to the regulations which are kept on public file by the EPA;
2, The alternative limitations requested are justified by the fundamental
difference alleged in subparagraph 1 of this subsection; and
3. • The appropriate requirements of subsection 2 of this section have been met.
Section 4. Criteria for Determining Alternative EflLuent Limitations,
(!) Purpose and scope. The factors, criteria and standards for the establishment
of alternative thermal effluent limitations described in CWA section 316(a) (33 U.S.C.
Section 132S(a}) will also be used in EPDES permits and will be referred to as 401 KAK
5:055, Section 7(4) variances.
(2) Definitions, For the purpose of this section: (a) "Alternative effluent
limitations" means all effluent limitations or standards of performance for the control of
the thermal component of any discharge which are established under section 7(4) of 401
t£AE 5:055.
(b) "Representative important species" means species which are representative, in
terms of their biological needs, of a balanced, indigenous community of shellfish, fish and
wildlife in the body of water into which a discharge of he&t is made,
(c) The term "balanced, indigenous community" means a biotic community
typically characterized by diversity, the capacity to sustain itself through cyclic seasonal
changes, presence of necessary food chain species and by a lack of domination by pollution
tolerant species. Such a community may include historically non-native species
introduced in connection 'with a program of wildlife management and species whose
presence or abundance results from substantial, irreversible environmental modification.
Normally, however, such a community will net include species whose presence or
abundance is attributable to the introduction of pollutants that wiH be eliminated by
compliance by all sources with section l(l)Cb) of 401 KAR, 5:065 and may not include
species whose presence of abundance is attributable to alternative effluent limitations
imposed pursuant to 401 KAR 5:055, Section 7(4).
(3) Early sere«ning of appliestions for 401 EAR 5:QS5t section 7(4) variances, (a)
Any initial application for the variance shall include the following early screening
information:
1. A description of the alternative effluent limitation requested;
2. A general description of the method by which the discharger proposes to
demonstrate that the otherwise applicable thermal discharge effluent limitations are
more stringent than necessary;
3. A general description of the type of data, studies, experiments and other
information which the discharger intends to submit for the demonstration; and'
4. Such data and information as may be available to assist the director in
selecting the appropriate representative important species.
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(b) After submitting the early screening information under paragraph (a) of this
subsection, the discharger shall consult with the director at the earliest practicable time,
but not later than thirty (30) days after the application is filed, to discuss the discharger's
early screening information. Within sixty (60) days after the application is filed, the
discharger shall submit for the director's approval a detailed plan of study which the
discharger will undertake to support its 401 KAR 5:055, Section 7(4} demonstration. The
discharger shall specify the nature and extent of the following type of information to be
included in the plan of study: biological, hydrographical and meteorological data; physical
monitoring data; engineering or diffusion models; laboratory studies; representative
important species; and other relevant information. In selecting representative important
species, special consideration shall be given to species mentioned in applicable water
quality standards. After the discharger submits its detailed plan of study, the director
will either approve the plan or specify any necessary revisions to the plan. The discharger
shall provide any additional information or studies which the director subsequently
determines necessary to support the demonstration, including such studies or inspections
as may be necessary to select representative important species. The discharger shall
provide any additional information or studies which the discharger feels are appropriate to
support the demonstration.
(c) Any application for the renewal of 401 KAH 5:055, Section 7(4) variance shell
include only such information described 'in paragraphs (a) and (b) of this subsection and 401
KAJi 5:075 as the director requests within sixty (60) days after receipt of the permit
application.
(d) The director will promptly notify the Secretary of the U.S. Department of
Commerce and the Secretary of the U.S. Department of Interior and any affected state
of the filing of the request and will consider any timely recommendations they submit.
(e) In making the demonstration the discharger shall consider any information or
guidance published by EPA to assist in making such demonstrations.
(f) If an applicant desires a ruling on a 401 KAR 5:055, Section 7(4) application
before the ruling on any other necessary permit terms and conditions, it shall so request
upon filing its application under paragraph (a) of this subsection. This request will be
granted or denied at the discretion of the director.
(4) Criteria and standards for the determination of alternative effluent
limitations under this section.
(a) Thermal discharge effluent limitations or standards established in permits may
be less stringent than those required by applicable standards &nd limitations if the
discharger demonstrates to the satisfaction of the director that such effluent limitations
are more stringent than necessary to assure the protection anc propagation oi a balanced,
indigenous community of shellfish, fish and wildlife in and on the body of water into .which
the discharge is made. This demonstration shall show that the alternative effluent
limitation desired by the discharger, considering the cumulative impact of its thermal
discharge together with all other significant impacts on the species affected, shall assure
the protection and propagation of a balanced indigenous community of shellfish, fish anc
wildlife in and on the body of water into which the discharge is to be made.
(b) In determining whether or not the protection and propagation of the affected
species will be assured, the director may consider any information contained or
referenced in any applicable thermal water quality criteria and information published by
the Administrator under CWA section 304(a) (33 U.S.C. Section 1314(a)) or any other
information he ceerns relevant.
(c) Existing dischargers may base their demonstration upon the absence of prior
appreciable harm in lieu of predictive studies. Any such demonstrations shall*show:
£. That no appreciable harm has resulted from the normal component of the
discharge, taking into account the interaction of such thermal component with other
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pollutants and the additive effect of other thermal sources to a balanced, indigenous
community of shellfish, fish and wildlife in and on the body of water into which the
discharge has been made; or
b. That despite the occurrence of such previous harm, the desired alternative
effluent limitations, or appropriate modifications thereof, shall nevertheless assure the
protection and propagation of a balanced., indigenous community of shellfish, fish and
wildlife in and on the body of water into which the discharge is made,
2. In determining whether or not prior appreciable harm has occurred, the
director1 will consider the length of time in which the applicant has been discharging1 and
the nature of the discharge.
Section 5. Toxic pollutants, References throughout the KPDES regulations
establish specific requirements for discharges of toxic pollutants. The following listing1
identifies those toxic pollutants required to be considered for eaoh of these KPDES
(1) Acenaphthene
(2) Aerolein
(3) Aerylonitrile
(4) Aldrin/Dieldrin
(5) Antimony and compounds
(6) Arsenic and compounds
(7) Asbestos
(8) Benzene
(9) Benzidine
(10) . Beryllium and compounds
(11) Cadmium and compounds
(12) Carbon tetrachloride
(13) Chiordane (technical mixture and metabolites)
(14) Chlorinated benzenes (other than diehlorobenzenes)
(15) Chlorinated ethanes (including 1,2-diehloroethan, 1,1,1-trichloroethane, and
hexaehloroe thane)
(16) ChloreaUcyl ethers (chloro methyl, ehloroetriyl, and mixed ethers)
(17) Chlorinated naphthalene
(IS) Chlorinated phenols (other than those listed elsewhere; includes
trichlorophenols and chlorinated cresols)
(19) Chloroform
(20) 2™chlorophe;nel
(21) Chromium and eompounds
(22) Copper and compounds
(23) Cyanides
(24) DDT and metabolites
(25) Diehlorobensenes (1,2-, 1,3-, and 1,4-diehIof©benzenes)
(26) Diehlorobenzidine
(27) Diehloroethylenes (1,1- and lr2-diehloroethylene)
(28) 2,4-dichlorophenol
(23) Dichioropropane and dichloropropene
(30) 2,4^1iinethylphenol
(31) Dinitro toluene
(32) Diphenylhydrazine ,
(33) Endosuifan &nd metabolites
(34) Endrin and metabolites
(35) Ethylbenzene
(36) Fluoranthene
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man those listed elsewr.ere:
r.nrnyl ether, bis(dischloroLSOpropyl) etht:
-.mated diphenyl ethers)
\jS) Kalomethanes (other than those listed elsewhere;
methyJchloride, methylbromide, bronioforrn,
trichior ofluoro me thane, dichlorodifluoro me thane)
(39) Heptachlor and metabolites
(40) Hesachlprobutadiene
(41) Hexachlorocyclohexane (all isomers)
(42) Hexachiorocyclopentadiene
(43) Isophorone
(44) Lead and compounds
(45) Mercury and compounds
(46) Naphthalene
(47) Nickel and compounds
(48) Nitrobenzene
(49) N'itrophenoLs (Including 2,4-dinitrophenol) dinitrocresol)
(50) Nitrosamines
(51) - Pentachlorophenol
(52) Phenol
(53) Phthalate esters
(54) Polychlorinated biphenyls (PCSs)
(55) Polynuclear aromatic hydrocarttons (including benzanthrace:
benzofluoranUiene, chrysenes, dibenzanthracenes, and indenopyrenes)
(56) Selenium and compounds
(57) Silver and compounds
(5S) 2,3,7 ,S-Tetrachiorodibenzo--p-
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NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
Department for Environmental Protection
Division of Water
401 KA-R 5:085. KPDES Discharge Permit and Variance F
RELATES TO: KRS 224.020, 224.033(19), (20), 224.034, 224.060, 224.073
PURSUANT TO: KRS 13.082, 224.033(17)
NECESSITY AND FUNCTION: This regulation defines the assessment of fees
applicable to the issuance of discharge permits and variances. This regulation establishes
permit and variance requirements in addition to those requirements of 401 KAR 5:005,
5:031, 5:045, 5:055, 5:060, 5:065, 5:070, 5:075 and 5:080 as are necessary to implement the
fee schedule established herein.
Section I, Applicability. The provisions of this regulation shall apply to the owner
or operator of each source required by 401 KAR 5:060, Section 1 to have a permit except
for publicly owned sources and sources permitted under a general permit issued under 401
EAR 5:055, Section 5.
S«ction 2. Definitions: [(!)] The following definitions described terms used in ttiis
regulation. Terms not further defined in this regulation have the meaning g^ven by KRS
224.005 or, if not defined, the meaning attributed by common use.
(1) "Agriculture Operation" means operations that use confined feeding in
livestock or livestock-byproduct production with manure handling facilities that qualify as
concentrated animal feeding operations in accordance with 401 KAH 5:050.
(2) "Conventional pollutant" means biochemical oxygen demand (BOD), chemical
oxygen demand (COD), total organic carbon (TOO, total suspended solids (TSS), ammonia
(as N), bromide, chlorine (Total Residual), color, fecal coliform, fluoride, nitrate, kjeldahl
nitrogen, oil and grease, and phosphorus.
(3) "Large Non-Publicly Owned Treatment Work" means facilities which discharge
a design flow rate greater than or equal to ten thousand (10,000) gallons per day
wastewater containing only conventional pollutants.
(4) Tdajor Industry" m«ans industries that generate and discharge process-related
wastewater while engaged in commercial activities including but not limited to, resource
recovery, manufacturing, products distribution, and wholesale and retail trade. These
industries discharge a design flow rate greater than or equal to fifty thousand (50,000)
gallons per day of process wastewater containing "conventional", "nonconventional", or
thermal pollutants. A "major industry" designation, as defined in this regulation, is not e.
criteria for classification as a major facility, as defined in 401 KAR 5:050.
(5) "Minor Industry" means industries that generate and discharge process-related
wastewater while engaged in commercial activities including, but not limited to, resource
-ecovery, manufacturing, products distribution, and wholesale and retail trffde. These
Jid us tries discharge a design flow rate less than fifty thousand (50,000) gallons per cay of
process wastewater containing "conventional", "nonconventional", or thermal pollutants.
If e facility discharges process-re La ted wastewater and does, not qualify under this
definition, then the facility shall be considered to be a "Major Industry.':
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(S) "NoB-eonventianal Pollutant" rne&ns ail pollutants not considered to be' a
"conventional pollutant" as defined in this regulation and including priority pollutants
identified in Section 13 of 401 KAB 5:060.
(7) "Non-Process Industry" means industries that generate and discharge only non-
process wastewater while engaged in commercial activities melxiding manufacturing,
resource recovery, products distributions, and wholesale and retail trade. These industries
discharge non-process wastewater, for example, non-contact cooling- or stockpile run-off,
discharge waste water that neither contains nor is likely to contain toidc pollutants in
concentrations equal to or greater the ninety-six (96) hour lethal concentration (LC)
for fifty percent (50) mortality (96 hr. LC 50) for a representative ind%enious aquatic
organism. If any of the above conditions is not met, then the discharge is considered to be
a "Minor Industry".
(8) "Small NoD-t»ubliely Owned Treatment Work" means facilities which discharge
a design flow rate less than ten thousand (10,000) gallons per day of wastewater
containing only conventional pollutants. If the facility does not qualify under this
definition then the facility shall be considered to be a "Large Non-Pu5licly Owned
Treatment Work".
(9) "Surface Mining Operation* means only those facilities required to have a
permit by 405 EAR Chapter 7-26.
Section 3. Filing- Pees. (1) Any owner or operator who submits an application for a
permit to discharge from a wastewater treatment unit wQl be assessed a filing fee in the
amount of 20 percent of the base fee in Section 4(2)(a) of this regulation.
(2) Airy owner or operator who submits an application for a variance w£U include
with the application a filing f&e in the amount of the base fee in Section S Subsection
(2)(&) orthis regulation,
(3) A filing fee is not refundable if a. discharge permit or -reliance application to
which it is related is denied or withdrawn,
(4) The filing fee w£H be applied toward the discharge permit or variance fee
respectively in Sections 4 and S of this regulation*
Section 4. Discharge Permit Fees, (l)(a) Every owner or operator who is Issued a
discharge permit shall be assessed a discharge permit fee In accordance with the
provisions set forth in subsection (2) of this section,
(b) Upon making: the determination that the discharge permit can be issued, under
401 KAR 5:075, Section 11, the cabinet will notify the applicant and send a bill for the
discharge permit fee. The discharge permit wCl be issued by the cabinet upon receipt of
the total amount of the permit fee less the filing fee. Failure by the applicant to pay the
assessed permit fee on or before the due date shaU result in the forfeiture of the filing
fee and denial of the permit.
(e) Facilities which fall into multiple categories &s specified in Section 2 of this
regulation shall be assessed the highest fee.
(2) Each discharge p«rmit fee will be determined by adldiog the base fe« in
paragraph (a) of this subsection to all other applicable component fees listed in paragraph
(b) of this subsection,
(a) Base fee. The base fee for a "discharfe permit for aay point source water
pollutant shall depend on the type of wastewater treatment unit or facility and the
required permit action. The amount of the base fee will be assessed according to the
following1
1st ISSUANCE AND
CATEGORY HEW AjjPJEXISTING FA
Major industry • 5SOO
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Minor Industry . " $ 500
Non-Process Industry $ 300
Large Non-POTW $ 400
Small Non-POTW $ 200
Agriculture $ 200
Surface Mining Operation $ 50
(b) Component fees. The component fee for each addition necessary to complete
the evaluation of the discharge permit shall be as follows:
1. Redraft Permit based on agencies' comments ...... $80.00
2. Public Hearing and 33 CSC Section 1311 Variances . .. $325.00
(3) The provisions of this section will apply with respect to fees for temporary
discharge permits except that the fee as determined by Subsection (2) of this section will
be multiplied by the ratio of the length of time covered by the temporary discharge
permit to five (5) years.
Section 5, Duplicate Discharge Permit Fee. Upon application for the issuance of a
duplicate discharge permit, the duplicate permit shall be issued by the cabinet upon
receipt of a $15.00 fee.
Sectioa 6. Variance Fee. (1) Any owner or operator granted a variance by the
cabinet shall be assessed a variance fee. Upon determining that 'the variance can be
granted, the cabinet shall notify the applicant and send a biH for the variance fee.
Failure by the applicant to pay the variance fee on or before the due date shall result in
the forfeiture of the filing fee and denial of the variance. The variance shall be granted
by the cabinet upon receipt of the total amount of the variance fee less the filing' fee.
(2) Variauee fees shaft be determined by adding the base fee in paragraph (a) of
this subsection with the component fee, if applicable, listed m paragraph (b) of this
subsection.
(a) Base Fee. The base fee for a variance for any point source watar pollutant
shall be equal to $270.00, the cost of reviewing the feasibility of Ose variance request and
reviewing the applicant's Plan of Study for the hydrolofie-water quality investigation,
assessment, or appraisal,
(b) Component Fee. The component fee for completing an evaluation of a
variance request shall be equal to $690.00, the cost of a technical review of the study
data, results, and conclusions, and for making the variance recommendation.
Section 7. Terms of Payment.. (1) Payment of a discharge permit or variance fee,
and a duplicate discharge permit fee, as the case may be, will be made within thirty (30)
days of the billing date.
(2) Payment of a filing fee shaH accompany the application for a discharge permit
or variance.
(3) With respect to all fees assessed in Sections 3, 4, 5, and 6» payment, if mailed
should be sent by certified mail. Certified checks or money orders, if used, shall be
payable to the Kentucky State Treasurer.
Section 8. Date of Applicability. The provisions of this regulation will become
effective upon the cete of program approval,
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JACKIE SWICAK7, 'SECRETARY
Recommended for approval by the Kentucky Administrative Regrilations Review
Subcommittee, pursuant to KRS Chapter 12,087, on May 25, 1982.
Recommendation upheld by the Leg-isLataive P»esearch Commission, pursuant to KES
Chapter 13, on June 1, 1983,"
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Model MOA
NPDES
MODEL
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
MEMORANDUM OF AGREEMENT
BETWEEN THE
STATE AGENCY
AND THE
UNITES STATES ENVIRONMENTAL PROTECTION AGENCY
REGION
Section i. General
This Memorandum of Agreement (hereafter "Agreement" or
"MOA") establishes policies, responsibilities and procedures
pursuant to 40 CFR Part 123 and defines the raanner in which
the National Pollutant Discharge Elimination System (NPDES)
will be administered by the State (Commonwealth) of (State),
( S_t at e Agericy ) ( herei naf ter (State Agency ) ) and reviewed by
Reqion of the United States Environmental Protection Agency
(hereinafter "EPA"). This MOA replaces the Memorandum of
Agreement between EPA and (State Agency) approved (date).
The (St ate _D_iLre_cto_r_ ) and the Regional Administrator hereby
agree to maintain a high level of cooperation and coordination
in a partnership to assure successful and effective administration
of NPDES. If requested by either party, meetings between the
State and EPA will be scheduled at reasonable intervals to
review specific operating procedures, resolve problems, or discuss
material concerns involving the administration of the State's
permit program. . .
In this partnership, EPA will provide to the (S t a t e_ _
Agency) on a continuing basis, technical and other assistance
on permit matters as requested. The (State Agency) has primary
responsibility for implementing the NPDES program for (State).
The (S t a _t e _ Agency ) will administer the NPDES program in accordance
with section 402 of the Federal Clean Water Act (CWA), 33 U.S.C.
§1251 et« seq. (hereinafter CWA}, applicable State legal
authority, the reguirements of 40 CFR Parts 122-125 and any
other applicable Federal regulations, and the annual State 106
program plan. The (State Agency) has the primary responsibility
to establish State NPDES program priorities which are consistent
with national NPDES goals and objectives.
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The strategies and priorities for issuance, compliance
monitoring and enforcement or permits, as established in this
MOA, may be set forth in more detail in the annual State 106
program plan and the State/EPA Enforcement Agreement signed by
the (S t a t_e_A_ge_ncy) and the Regional Administrator of EPA Region
__." This MOA, the State 106 program plan, the State/EPA
Enforcement Agreement and any other State/EPA agreement(s)
regarding the NPDES program shall be consistent. However, the
basic requirements of this MOA shall override any other State/EPA
agreement(s} as required by 40 CFR §123.34{c).
Sect i_p_n_I_I_._ Prog ram Responsibilities
A. ( State Age n c y ) Re_s_p_o_n _s i bilities
In accordance with the priorities and procedures established
in this Agreement and the annual State Program Plan, the (St.ate
Agency) will:
1. Develoo and maintain, to the maximum extent possible,
the legal authority (including State regulations) and the
resources required to carry out all aspects of the NPDES program.
2. Process in a timely manner and propose to issue, reissue,
or modify all NPDES permits. Permit applications by major
dischargers shall normally receive first priority in all NPDES
activities, depending on water quality and public health
considerations.
3. Comprehensively evaluate and assess compliance with
schedules, effluent 1imitat ions'and other conditions in permits
as outlined in section IV of this Agreement.
4. Maintain a vigorous^enforcement program by taking timely
and appropriate actions in accordance with the CWA, and as
outlined in Section IV of this Agreement.
5. Maintain an adequate public file at the appropriate
regional or central office (which must be easily accessible to
EPA for audit purposes) for each permittee. Such files must,
at a minimum include copies of:
Permit Application;
Issued Permit;
Public Notice and Fact Sheet (when prepared);
Discharge Monitoring Reports;
All Inspection Reports;
All Enforcement Actions; and
Other pertinent information and correspondence.
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6. Maintain an effective program to carry out the pretreatment
responsibilities outlined in Section V of this Agreement (when
approved);
7. Cooperate with EPA in the administration of the NPDES
program in accordance with EPA program policies and guidance;
8. The (S_tate Agency) will submit to the Regional Admin-
istrator the information described in section VI of this Agree-
ment, the annual State program plan and applicable portions of
40 CFR Part 123. Additionally, upon request by the Regional
Administrator, the (State Agency) shall submit specific infor-
mation and allow access to files necessary for evaluating
(State Agency) administration of the NPDES program.
B. EPA Responsibilities
1. EPA commits to funding the (State Agency) to the
maximum extent possible to support its NPDES activities.
2, EPA will provide technical support and assistant to
the (State A_ge_nc_y) in the following areas:
- Interpretations of Effluent Limitation Guidelines
(ELG) regulations.
- Development of technology-based effluent requirements
and related "best management practices," which include
the use of "best professional judgment."
- General technical assistance in processing permit
applications.
3. EPA will ensure that the (State Agency) is kept fully
informed and up to date concerning:
- EPA contractor reports; draft and final EPA development
documents; and draft, proposed and final ELG regulations
for various industry categories,
- Draft and final settlement agreements between EPA and
litigants which concern the interpretation or modifica-
tion of ELG regulations for various industry categories.
- Draft, proposed, and final versions of EPA regulations,
technical guidances, policy and procedures which pertain
to implementation of the NPDES program and water quality
planning prog ram.
4. EPA will provide (State Agency) with the opportunity
for meaningful involvement in program development activities
and program initiatives. EPA will keep (State Agency) informed
of development of NPDES program policy statements, strategies
and related guidance, and provide for input by the (St^a te
Agency) when appropriate.
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5. As outlined in section VII of this Agreement, EPA will
oversee the administration of NPDES on a continuous basis for
consistency with the CWA, this Agreement, the annual program
plan, and all applicable federal regulations and policies.
EPA will, as a part of its assessment, consider among other
things, review of permits, reports, and enforcement actions
submitted by the (State Agency) and may also consider comments
from permittees, the public, and federal and local agencies
concerning the (StateAgency's) administration of NPDES. Any
such comments considered by EPA will be brought to the attention
of the (StateAgency) by written correspondence if the commenting
party has not previously communicated this comment to the
(State Agency). Any information obtained or used by the (State
Ag,engy_) under the NPDES program shall be available to EPA upon
request without restriction. If the information has been
submitted to the (State Agency) under a claim of confidentiality,
the (Stat e__Ag;ency) shall inform EPA of that claim. Claims of
confidentiality will be treated in accordance with 40 CFR
Part 2, Subpart B: and 40 CFR 122.7,
Section III. Permit Review and Issua_nc_e_
The (State Agency) is responsible for expeditiously drafting,
providing public notice for, issuing, modifying, reissuing, and
terminating permits in accordance with section VI below, 40
CFR Parts 122-125 and any other applicable regulations.
A. Receipt of New Permit Applications by the (State Agency)
Within thirty (30) working days of the receipt of a complete
permit application, the (State Agency) will enter all required
information into EPA's National Permit Compliance System (PCS).
B, Permit Reissuance
All expiring NPDES permits shall be reissued on or before
their date of expiration. If such timely reissuance is not
possible, the (S_tate Agency) will notify the Regional Admin-
istrator of the reasons for delay. In no event will permits,
administratively continued beyond an expiration date, be modified
or revised.
C. EPA Review of Draft Permit,s__and Permit Modifications
«
1. (State Agency? shall consult with the Regional Admin-
istrator before issuing public notice of a draft permit to
insure that the permit will comply with federal guidelines and
requirements. The (State Agency) shall transmit to the Regional
Administrator appropriate portions of working documents in
connection with the consultation,
2, Unless otherwise waived, EPA will review all draft permits
At the time of issuance of public notice, the (State A_gen_gy)
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shall send the EPA one copy of the public notice, the draft
permit, and the fact sheet (when prepared) for each facility.
If the permit is for a possible new source under CWA section
306, the submittal must be accompanied by a new source/new
discharger determination. EPA shall have 30 days to comment
upon, object to, or make recommendations with respect to the
draft permit. The time for EPA review shall be extended to 90
days upon request of EPA, EPA will send to (State Agency)
written agreement, comments, or objections to each draft permit,
including a statement of the reasons for the comments or objec-
tions and the sections of the CWA or regulations which support
them. A copy of all comments will also be sent to the permit
applicant. In the event EPA files a "general objection" to a
draft permit, it shall have 90 days from receipt of the draft
permit to supply the specific grounds for objection, and the
terms and conditions which should be included in the permit.
If the initial permit information supplied by the (StateAgency)
is inadequate to determine whether the draft permit meets the
guidelines and requirements of the CWA EPA may file an "interim
objection" under 40 CFR 123.44(d} and request the (State Agency)
to transmit the complete record (or portion thereof!of the
(State Agency) permit proceedings. The full period for EPA
review shall recommence upon receipt of the requested information.
3, If (a) the proposed final permit differs from the
draft permit defined in the public notice, (b) EPA has not
objected to the draft permit, and (c) significant public
comments have not been made, the (State .Agency) may issue the
permit without further review by EPA. In all other cases, the
(State Agency) will send one copy of the proposed, final permit
recommendations of any other affected State and copies of
written comments and hearing reqords, including the response
to comments prepared under 40 CFR 124.17 to EPA for review.
Whenever the (State Agency) prepares a written explanation to
an affected State explaining the reasons for rejecting any of
its written recommendations„ £he state shall transmit a copy
to the Regional Administrator, EPA will, within ( ) working
days after receipt of the proposed final permit, notify the
(State Agency) and the permit applicant of any formal objections
authorized under 402(d) of the Act. This notification shall
set forth in writing the general nature of the objection within
ninety (90) days following receipt of the proposed final permit
to which EPA has objected.
4. In the event the Regional Administrator objects to a
permit under either paragraph c(2) or (3), above, the Regional
Administrator shall so notify the (State Agency) in writing as
to the reasons for the objection and the actions necessary to
eliminate the objection. EPA's objections must be based on one
or more of the criteria identified in 40 CFR 123.44. The
(State Agency) has the right to a public hearing on the objection.
If EPA's concerns are not satisfied within ninety (90) days of
the notice of objection (or thirty (30) days following a public
hearing on the objection), exclusive authority to issue the
permit vests in EPA.
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D. New Source Permits
In the case of development of draft permits for new sources,
there shall be continuing coordination between the (State Agency)
and EPA throughout the permitting process. The coordination
will include the (S t a te Agency) keeping EPA informed of important
issues relating to the development of the permit and EPA assisting
the (State Agency) when requested, in assessing the impact of
the new source on the environment.
E. Waiver of Permit Review_by :E_P.A
1. At this time, EPA waives the right to comment on, or
object to, the sufficiency of permit applications, draft permits,
proposed final permits, and final (issued) permits for all
discharges or proposed discharges with the exceptions of the
categories described below:
a. Discharges which may affect the waters of another State;
b. Discharges proposed to be regulated by general permits;
c. Discharges from publicly owned treatment works with a
daily average discharge exceeding one million gallons per
day ;
d. Discharges of uncontaminated cooling water witha daily
average discharge exceeding 500 million gallons per day;
e. Discharges from any major discharger;
f. Discharge from any discharger within any of the industrial
categories listed in Appendix A to 40 CFR Part 122;
g. Discharges from any other source with a daily average
discharge exceeding 0.5 million gallons per day, except,
discharges of non-process waste water;
h. Discharges into the territorial sea or contiguous zone;
and
i. POTW'3 required to have a pretreatment program (40
CFR Part 403).
The foregoing does not include waiver of receipt of copies
of all final permits issued, or any notices required under
sect ion V of this Agreement.
2. With respect to modifications or revocations and
reissuances of permits, EPA waives the right to review any
permit for which the right to review the original permit was
waived (unless the modification would put the permit into one
of the categories in paragraph C.I above) or qualifies as a
minor modification as defined in 40 CFR 122.63.
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3. EPA reserves the right to terminate the waivers in para-
graphs 1 and 2 above (in whole or in part) at any time. Any
such termination shall be made in writing to the (State Agency).
4, The foregoing waiver shall not be construed to authorize
the issuance of permits which do not comply with applicable
provisions of Federal, State or local laws, rules, regulations,
or effluent guidelines, nor to relinguish the right of EPA to
petition the (State Agency) for review of any action or inaction
because of violation of Federal, State or local laws, rules,
regulations, or effluent guidelines.
F. Public Participation
1. Permit applications, draft permits, public notices, and
fact sheets or statement of basis (when prepared) will be made
available to any party upon request upon payment of applicable
State duplicating fees.
2. (State Agency) will prepare and distribute copies of
all public notices and fact sheets in accordance with 40 CFR
124.8 and 124.10 unless otherwise waived by the specific
organization,
3. All draft general permits, major NPDES permits, and
pretreatment program approvals shall be public noticed in a
daily or weekly newspaper within the area affected by the
activity, in accordance with 40 CFR 124.10(c)(2)(i ) .
G. Issuance of Permits or Notice of Intent to Deny
1. If the final determination is to issue the permit, the
final permit will be forwarded to the permit applicant, along
with a transmittal letter notifying the applicant that the
permit is being issued. Copies of issued permits will be
forwarded to EPA in accordance with the schedule contained in
section V of this Agreement,
2. If the final determination is to deny the permit, notice
of intent to deny shall be given to EPA and to the applicant
in accordance with NPDES regulations.
H. Termination, Modification, Revocation _and Reissuance of Permits
Except as waived in paragraph D.2 above, the (State Agency)
shall notify EPA whenever it intends to terminate an issued NPDES
permit. In addition, (State Agency) shall transmit to EPA a
copy of any permit which it proposes to modify or revoke and
reissue with the proposed changes clearly identified. The
procedure set forth in paragraphs C.2 and 3 above shall be
followed with respect to modifications by the (State Agency) of
any issued permit and, for purposes of this agreement, each
permit proposed to be modified shall be deemed to be a newly
proposed draft permit, except for minor modifications as described
in 40 CFR 122.63.
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I. Administrative or Court Action
If the terms of any permit, including any permit for which
review has been waived pursuant to paragraph D above, are affected
in any manner by administrative or court action, the (State
Agency) shall immediately transmit a copy of the permit, with
changes identified, to the Regional Administrator and shall
allow 30 days for EPA to make written objections to the changed
permit pursuant to section 402(d)(2) of the CWA.
J- Major Discharger List
There shall be included as a part of the annual program
plan a "major dischargers" list, which shall include those
dischargers mutually defined by the (State Agency) and EPA as
major dischargers based on a point rating worksheet or applicable
definitions plus any additional dischargers that, in the opinion
of the (State Agency) or EPA, have a high potential for violation
of water quality standards. The major discharger list for
Federal facilities shall be jointly determined by EPA and the
(Statue Agency) .
K. Variances
The (State Age n cy) shall conduct an initial review of all
requests for fundamentally different factors variances, for
variances under §§301(c), (g), (i), (k), and 316{a) of the CWA,
and for modifications to federal effluent limitations established
under section 302 of the CWA,
1. With regard to §§301(i) and (k) and 316(a) variances,
the (State A g e n cy) may deny or approve the request. A copy of
the determination shall be sent to the requester and EPA.
2. With regard to FDF's and 301(c) and (g) variances,
and §302 modifications, the~(Sj^ate ^Agency) may determine to
deny the request, and such determination shall be forwarded to
the requestor and EPA. If the (State Agency} determines that
factors do exist that may warrant such a variance, the request
and recommendation for approval shall be sent to EPA. If EPA "•
denies a variance request, the (State Agency) shall so notify
the requestor. If EPA approves a variance request, the (State
Agency) will prepare a draft permit factoring in the variance.
L. Evidentiary Hearings (New NPDES Programs Only)
1. EPA will retain responsibility over permit appeals or
requests for modification which are pending at the time of
program approval. In the event such permit appeals or requests
for modification, remain unresolved at the time the EPA~issued
permit expires, the (State Agency) will assume jurisdiction
over the appeal or request unless it agrees that a particular
matter should be resolved by EPA.
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2. The State Agency will provide EPA with a copy of all
precedent setting settlements and administrative decisions
which impact the (State Agency's) ability to implement the
NPDES program in acordance 'with the federal requirements.
Section IV. Enforcement
The (State Agency) agrees to maintain a vigorous enforce-
ment program, including a compliance assessment of dischargers
and to take timely and appropriate enforcement actions where
such action is warranted. Discharges endangering public health
shall receive immediate and paramount attention.
h, Compliance Monitoring
The (State Agency) shall operate a timely and effective
compliance monitoring program including an automatic data
processing (ADP) and/or manual tracking system for the purpose
of determining compliance with permit conditions and pretreatment
requirements (when applicable). For purposes of this MOA, the
term "compliance monitoring" includes all activities taken by
the (State Agency) to assure full compliance with NPDES program
requirements. The (State Agency's) monitoring program shall
consist of two main activities;
1. Compliance Review - The (State Agency) shall conduct
timely and substantive reviews and keep complete records of all
written material relating to the compliance status of NPDES
permittees, including Compliance Schedule Reports, Discharge
Monitoring Reports, Compliance Inspection Reports, and any
other reports that permittees ma.y be required to submit under the
terms and conditions of a NPDES permit, approved pretreatment
program (when applicable), or court order.
The (State Agency) shall .operate a system to determine if:
- The self-monitoring reports required by permit or pretreatment
regulations are submitted;
- The submitted reports are complete and accurate; and
- The permit conditions and pretreatment requirements (when
applicable) are met.
The (State Agency) and EPA shall have periodic enforcement
conferences, either in person or by telephone, to decide prior-
ities for initiating enforcement actions.
The (State Agency) shall initiate appropriate enforcement
actions whenever required performance is not achieved or when
reports are not received. In the case of violation by a major
discharger the (State_Agency) shall initiate an appropriate
enforcement action within 30 days of the date such report was
or should have been received by the State. Priorities for
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- 10 -
reviewing these reports and for initiating enforcement actions
will be specified in procedures developed by the (State _Agency_) .
2« Compliance Inspection - The (State Agency) shall conduct
field activities to determine the status of compliance with permit
requirements including sampling and nonsampling inspections,
Inspection procedures will be in accordance with EPA ' s NP_DES
Compliance Evaluation Inspection Manual, 1976, updated 1980.
For purposes of this MQA, the term compliance inspections includes
evaluation inspections, performance audits, sample inspections
and biomonitoring inspections.
The (State Agency) and Regional Administrator will develop
lists of major permittees to be the subject of State compliance
inspections, pursuant to a neutral inspection scheme consistent
with the annual program plan. The (State Agency) shall conduct
compliance inspections of all of the major permittees on at least
an annual basis. The list may be modified with the concurrence
of both parties. The (State Agency) shall also furnish an estimate
of the number of other compliance inspections to be performed
during the year. The (State Age ncy ) will give EPA adequate notice
and opportunity to participate in its inspection activities.
EPA or the (State Agency) may determine that additional
compliance inspections are necessary to assess permit compliance.
If EPA makes a determination that additional compliance inspec-
tions are necessary, it shall notify the (State Agency ) and may
request the (State Agency) to conduct these inspections. EPA
request the State Agency to conduct these inspections.
retains the right to perform compliance inspections of any
permittee at any time, but will notify the ( State _Ag_enqy) to
give it an opportunity to participate and will otherwise keep
the (State Agency ) informed of its plans and results.
The ( State Agency) shall also be responsible for entering
all inspection data into the .PCS (if the ( State_ Agency ) has
the capability to do so) and preparing a list of all noncomplying
major permittees in accordance with the regulations at 40 CFR
123.45.
Reports on compliance inspections for major permittees
shall be available for review by the ( S t a t e Agency) or the
Regional Administrator, as appropriate, within 30 days of the
date of the inspection. The (State Agency) shall thoroughly
review emeh report to determine what. If any, enforcement
action shall be initiated. Where the results of the inspect,ion( s )
indicate that the dischajrger is in violation, the ( §tate__A£ency_ )
shall initiate enforcement action within __ days of the date of
the inspection ( s ) or make a decision in writing to execercise
enforcement discretion not to take any action. Priorities for
the review of these inspection reports and for initiating
enforcement action will be specified in procedures developed by
the (State Agency) .
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3, Information Requests - Whenever, either party requests
information concerning a specific discharger and the requested
information is available from the files, that information will
be provided within a reasonable time.
B. Action Against Violators
The (State Agency) is responsible for taking timely and
appropriate enforcement action against persons in violation of
pretreatment requirements, compliance schedules, effluent
limitations, reporting requirements, other permit conditions,
and other NPDES Program requirements. This includes violations
detected by State or federal surveys.
The (State Agency) shall maintain procedures for receiving
and ensuring proper consideration of information submitted by
the public about violations. If EPA determines that the (State
Agency) has not initiated timely and appropriate enforcement
action against a violator, EPA may proceed with any or all of
the enforcement options available under section 309 of the CWA
after notice to and consultation with the (State Agency).
Prior to proceeding with an enforcement action, EPA shall give
the (Stat-_e_ Agency) 30 days to initiate such enforcement action.
This notification may be made either at the periodic enforcement
meetings, by telephone or through written communication. Such
notifications shall not be required when EPA is exercising its
emergency power under section 504 of the CWA.
The (State Agency) understands, supports and agrees to
errploy the spirit of the EPA Penalty Policy as established in
the Memoranda of the Assistant Administrator for Enforcement,
(February 11, 1986). EPA will supply the {St_ate Agency) a copy
of these memoranda and any subsequent additions or revisions
thereto.
The (State Agency_) shalL immediately notify the Regional
Administrator by telephone, or otherwise of any situation
posing a substantial endangerment to health, welfare, or the
environment resulting from the actual or threatened direct or
indirect discharge of pollutants into waters "jf the State.
Section V. Pretreatment
A. General
This section is intended to define (S_t_a_t e_ _Age ncy) and EPA
responsibilities for the establishment, implementation, and
enforcement of the National Pretreatment Program pursuant to
section 307, and 402(ta) of the Clean Water Act (hereinafter
the Act) as follows.
The (State Agency) has primary responsibility for:
(a) enforcement against discharges prohibited by 40 CFR 403.5?
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(b) application and enforcement of National Categorical
Pretreatment Standards established by the EPA in accordance
with section 307 (b) and (c). of the Act, local Publicly Owned
Treatment Works (POTW) limitations and State standards?
(c) review, approval or denial of POTW Pretreatment Programs
in accordance with the procedures discussed in 40 CFR 403-. 8,
403.9, and 403.11;
(d) requiring a Pretreatment Program in NPDES Permits issued
to POTWs as required in 40 CFR 403.8, and as provided in
section 402 (b)(8) of the Act;
(e) requiring POTWs to develop and enforce local limits as
set forth in 40 CFR 4G3.5(c);~
(f) review and, as apropriate, approval of POTW requests for
authority to modify categorical Pretreatment Standards to
reflect removal of pollutants by a POTW in accorance with
40 CFR 403.7, 403.9 and 403.11 and enforcing related conditions
in the POTW'a NPDES permit;
(g) overseeing POTW Pretreatment Programs to insure compliance
with requirements specified in 40 CFR 403.8, and in the POTW's
NPDES permit,-
(h) requiring industrial reports as outlined in 40 CFR 403.12.
The (State Agency) will apply and enforce all other pretreatment
regulations as required by 40 CFR Part 403. EPA will oversee
(State Agency) pretreatment program operations consistent with
40 CFR 403 regulations and this ,MOA.
The (State Agency) shall perform inspection, surveillance
and monitoring activities which will determine, independent of
information supplied by the -POTW, compliance or noncornpliance
by the POTW with pretreatment requirements incorporated into
the POTW permit; and carry out inspection, surveillance and
monitoring activities which will determine, independent of
information supplied by the Industrial User, whether the
Industrial User is in compliance with Pretreatment Standards.
Upon request, the (State Agency) will provide to EPA copies of
all notices received from POTWs that relate to a new or changed
introduction of pollutants to the POTW.
B _, _ Request s_ _ f or_Cat ego ri c a 1 De t e rmin a t i on
^e (State^^sncv^) shall review requests for determinations
of whether" the Industrial User does or does not fall within a
particular industrial category or subcategory. The (State
Agency) will make a written determination for each request
stating the reasons for the determination. The (State Agency)
shall then forward its findings, together with a copy of the
request and any necessary supporting information, to the EPA.
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Regional Water Management Division Director for concurrence,
If the Water Management Division Director does not modify the
(State Agency) decision within 60 days after receipt thereof,
the (S_tate Agency) findings is final. A copy of the final
determination shall be sent to the requestor and to the (State
Agency).
C. Removal Credits and _POTW Pretreatment_Program Approvals
The (State Agency) shall review and approve POTW applica-
tions for POTW pretreatrnent program authority and POTW applica-
tions to revise discharge limits for users who are, or may in
the future be, subject to categorical pretreatment standards.
It shall submit its findings together with the application and
supporting information to the EPA Regional Water Management
Division Director for review. No POTW Pretreatment Program
or request for revised discharge limits shall be approved by
the (State Agency) if EPA objects in writing to the approval
of such submission in accordance with 40 CFR 403.11(d).
D. Variances From Categoryical Standards For Fundamentally
Dif£erent_Factors
The (State Agency) shall make an initial finding on all
requests from Industrial Users for fundamentally different
factors variances from the applicable categorical Pretreatment
Standard. If the (State Agency) determines that the variance
request should be denied, the (State Agency) will so notify
the applicant and provide reasons for its determination in
writing. Where the (State Agency's) initial finding is to
approve the request, the finding, together with the request
and supporting information, shall be forwarded to the EPA
Regional Water Management Division Director for a final
determination. The (St.ate Agency) may deny, but not approve
and implement the fundamentally different factor(s) variance
request until written approva-1 has been received from the
Water Management Division Director,
If the Water Management Division Director finds that Fun-
damentally different factors do exist a variance reflecting
this determination shall be granted. If the Water Management
Division Director determines that fundamentally different
factors do not exist, the variance request shall be denied
and the (State Agency) shall so notify the applicant and
provide reasons for the denial in writing.
£. Net/Gross Adjustment's to Categorical Standards
If the (State Agency) receives a request for a net/gross
adjustment of applicable categorical standards in accordance
with 40 CFR 403.15, the (State Agency) shall forward the appli-
cation to the Water Management Division Director for a deter-
mination. Once this determination has been made the Water
Management Division Director shall notify the applicant and
the applicant's POTW and provide reasons for the determination
and any additional monitoring requirements the Water Management
Division Director deems necessary, in writing.
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14 -
F. Miscellaneous
The (Stat e_ Agency) will submit to the EPA Regional Water
Management Division Director a list of POTWs which are required to
develop their own pretreatment program or are under investiga-
tion by (State Agency) for the possible need of a local
pretreatment program. The State will document its reasons for
all deletions from this list. Before deleting any POTW with a
design flow greater than 5 million gallons per day (mgd), the
State will obtain an industrial survey from the POTW and determine
(1) that the POTW is not experiencing pass through or interference
problems, (2) there are no industrial users of the POTW that
are subject either to categorical standards or specific limits
developed pursuant to 40 CFR 403.5(c). The State will document
all such determinations and provide copies to EPA. For deletions
of POTWs with flows less than 5 mgd, the State will first
determine {with appropriate documentation) that the POTW is
not experiencing treatment process upsets, violations of POTW
effluent limitations, or contamination of municipal sludge due
to industrial users. The State will also maintain documentation
on the total design flow and the nature and amount of industrial
wastes received by the POTW.
The (State Agejncy) and EPA will communicate, through the
§106 planning process, commitments and priorities for program
implementaton including commitments for inspection of.POTWs and
industrial users. The SEA will contain, at a minimum the
following: (1) a list of permits to be issued by the (State
Agency;) to POTWs and Industrial Users subject to pretreatment
requirements; and (2) a list of POTWs and Industrial Users to
be audited or inspected.
G._ Other Provisions
Nothing in this agreement is intended to affect any pre-
treatment requirement, including any standards or prohibitions
established by State or local law, as long as the State or
local requirements are not less stringent than any set forth
in the National Pretreatment Program, or other requirements
or prohibitions established under the Act or Federal regulations.
Section VI. Reporting and Transmittal of Information
A. The (State Agency) will submit the following to EPA:
Item Description Frequency of Sjjbmjjsjlojn
1. A copy of all permit applications within 5 days of receipt.
except those for which EPA has
waived review.
2. Copies of all draft NPDES permits W>ien placed on public
and permit modifications including notice
fact sheets except those for which
EPA has waived review.
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- 15 -
Copies of all public notices,
except those for which EPA has
waived review.
As issued
8,
10,
11
A copy of all issued, proposed
and modified NPDES permits.
Copies of all permit applications
and public notices for which EPA
has waived review.
A letter of transmittal listing
NPDES permit number, permittee's
name, facility location, date
signed, effective date, and
expiration date.
As issued
Upon request
Monthly - by the 5th
working day of each
month,
A copy of settlements
in permit appeals.
and decisions As issued
A list of major facilities
scheduled for compliance
inspections,
Proposed revisions to the
scheduled compliance inspections
A list of
performed
quarter,
compliance
during the
inspections
previous
Copies of all compliance 'inspection
reports, report forms, data, and
transmittal letters to major
oermittees.
With submission of the
annual program plan
As needed
Quarterly
v.'ithin 30 days o'f
i nspection
12. Copies of all compliance inspection
reports and data transmittal
letters to all other permittees.
13. For major dischargers, a quarterly
noneompliance report as specified
in 40 CFR 123.45(a) and further
qualified in EPA Guidance;
14. For minor dischargers, an annual
noncompliance report as specified
in 40 CFR 123.45(b)
15. Copies of all enforcement actions
against NPDES violators (including
letters, notices of violation, ad-
ministrative orders, initial
determinations, and referrals to
the Attorney General)
As requested
Quarterly, as specified
in 40 CFR 123.45(c)
Within 60 days of the end
of the calendar year as
specified in 40 CPR
123.45(c)
As issued
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16
16
17
Copies of correspondence required As issued or received
to carry out the pretreatment
program
Copies of Discharge Monitoring
Report (DMR's) and noncompliance
notification from major permittees
Within 10 days of receipt
EPA shall transmit the following information to the State:
I tern Description
A list of compliance inspections
EPA intends to conduct jointly
with the State as part of its
State Overview Plan;
Proposed revisions to the schedule
of compliance inspections;
Copies of all EPA compliance
inspection reports and data;
Frequency of Submission
Annually
As needed
Within 30 days of
inspection
I tern Description
Copies of all EPA enforcement
actions against NPDES violators
(including notice of violation,
and administrative orders).
Frequency of Submission
As performed
5, A review of the State administration As performed
of the N'PDES Permit Program based
on State reports, meetings with
State officials, and-f-ile audits.
C. The State shall transmit a copy of every issued NPDES permit
to each affected State no later than 30 days after its issuance.
Section VII. Program Review
A. To fulfill its responsibility for assuring the NPDES
program requirements are met, EPA shall:
1. Review the information submitted by the
2. Meet with State officials from time to time to discuss
and observe the data handling, permit processing, and enforce-
ment procedures, including both manual and ADP processes;
3. Examine the files and documents at the (State Agency)
regarding selected facilities to determine: a) whether permits
are processed and issued consistent with federal requirements;
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- 18
Section IX. Computations o_f_ _Time
A. In computing any period of time prescribed by this MOA the
day from which the designated period to time begins to run shall
not be included. The last day of the period shall be included
unless it is a Saturday, Sunday, or a legal holidy, in which case
the period extends until the end of the next day which is. not
a Saturday, Sunday or a legal holiday. When the period" of time
seven days, intermediate Saturdays, Sundays, or
shall be excluded in the computation.
is less than
legal holidays
B. For the purpose of EPA review of permit applications-, draft
or proposed permits, or permit modifications, the period for
commence until received by EPA.
review shal'l not
Section X. Modification
This HQA shall take effect immediately upon approval by the
Regional Administrator. Either the (State Director) or EPA may
initiate action to modify this MOA at any time,If EPA or the
Administrator of EPA determines that any modification to the
MOA initiated by the (State Agency) does not conform to the
requirements of §4G2(b) of the CWA, or to the requirements of
40 CFR Parts 122-125 or any other applicable Federal regulation,
as amended, the Regional Administrator or Administrator of EPA
shall notify the (State Agency) in writing of any proposed
revision, or modifications which must be in this agreement,
Any proposed amendments or revisions must be put in writing and
signed by the (State Director) and the Regional Administrator,
with the prior concurrence of the Director, EPA Office of Water
Enforcement and Permits and EPA^Associate General Counsel for
Water,
Section XI. Other Optional Provisions
A, Section 301(h) variances
B. Special toxics programs
C. Water quality standards
D. New source procedures
E. Aquaculture projects
F. Incorporation of EPA
by reference
G. Area 208 planning
rules
In witness whereof, the parties execute this agreement.
FOR STATE AGENCY:
Di rector
State Agency
(Date)
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-- 17 -
b) whether the (5t_ate .Agjency) is able to discover permit viola-
tions when they occur; cl™whether (State Agency) reviews are
timely; and d) whether (State Agency") selection of enforcement
actions is appropriate and effective. EPA shall notify the
(51atfe Ag ency) in advance of any examination under this paragraph
so that appropriate State officials may be available to discuss
individual, circumstances and problems, EPA need not reveal to
*-^e (State Agericy_) in advance the files and documents to be
examined. A copy of the examination report shall be transmitted
to the State when available;
4. Review, from time to time, the legal authority upon
which the State's program is based, including State statutes
and regulations;
5. When appropriate, hold public hearings on the (State
Agericy ' s ) NPDES program; and
6. Review the (State Agency) public participation policies,
practices and procedures.
B. Prior to taking any action to propose or effect any substan-
tial amendment, recission, or repeal of any statute, regulations,
directive, or form which has been approved by EPA; and prior to
the adoption of any new statute, regulation, directive or form,
the (State ^Agency) shall notify the Regional Administrator
and shall transmit the text of any such change or new form to
the Regional Administrator (s_ee, 40 CFR 123.62 which provides
that the change may trigger a program revision, which will not
become effective until approved by EPA).
C. If an amendment, recision, or repeal of any statute, regu-
lations, directive, or form described in paragraph (B) above
shall occur for any reason, including action by the (State)
legislature or a court, the (St^ate Agency) shall within
10 days of such event, notify, the Regional Administrator and
shall transmit a copy of the text of such revision to the
Regional Administrator.
D, Prior to the approval of any test method other than
those specified as required for NPDES permitting, the (State
Ag e n cy) shall obtain the approval of the Regional Administrator.
E. The (State Agency) shall seek such legislation, adopt
such regulations, provide Attorney General opinions, and take
such further actions which may be necessary to preserve and
maintain any compliance with NPDES Program requirements.
Section VIII. Independent EPA Powers
Nothing in this MQA shall be construed to limit the authority
of EPA to take action pursuant to Sections 308, 309, 311, 402,
504, or other sections of the CWA.
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- 19 -
FOR U.S. ENVIRONMENTAL PROTECTION AGENCY:
Regional Administrator, (Date
Region
-------
Model MOA
Pretreatment
AMENDMENT
• TO THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
MEMORANDUM OF AGREEMENT
BETWEEN
(STATE AGENCY)
AND THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION
Section 1. General
The Memorandum of Agreement (MOA) between the (State Agency)
and the Administrator of the -United States Environmental
Protection Agency (hereinafter EPA) and approved on ,
is hereby modified to define (Stajte Agency) and EPA responsi-
bilities Cor the establishment, implementation, and enforcement
of the National Pretreatment Program pursuant to sections 307
and 402{b) of the Clean Water Act (hereinafter the Act) as
follows.
The (State Agency) has primary responsibility for:
(a) enforcement against discharges prohibited by 40 CFR 403.5;
(b) application and enforcement of National Categorical Pre-
treatment Standards established by the EPA in accordance
with section 307 (b) and (c) of the Act, local Publicly Owned
Treatment Works (POTW) limitations and State standards;
{c) review, approval or denial of POTW Pretreatment Programs
in accordance with the procedures discussed in 40 CFR 403.8,
403,9, and 403.11;
(d) requiring a Pretreatment Program in NPDES Permits issued
to POTWs as required in 40 CFR 403.8, and as provided in
section 402 (b)(8) of the Act;
(e) requiring POTWs to develop and enforce local limits as
set forth in 40 CFR 403.5{e);
{f} review and, as apropriate, approval of POTW requests for
authority to modify categorical Pretreatment Standards to
reflect removal of pollutants by a POTW in accorance with
40 CFR 403.7, 403.9 and 403.11 and enforcing related conditions
in the POTW1s NPDES permit;
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(q) overseeing POTW Pretreatment Programs to insure compliance
with requirements specified in 40 CFR 403,8, and in the POTW1s
NPDES permit;
(h) requiring industrial reports as outlined in 40 CFR 403.12.
The (State Agency) will apply and enforce all other pretreatment
regulations as required by 40 CFR Part 403, EPA will oversee
(S_tajte _Age_n_cy) pretreatment program operations consistent with
the requirements of 40 CFR Part 403 and this MOA.
The (State Age_n_cy) shall perform inspection, surveillance
and monitoring activities which will determine, independent of
information supplied by the POTW, compliance or noncompliance
by the POTW with pretreatment requirements incorporated into
the POTW permit; and carry out inspection, surveillance and
monitoring activities which will determine, independent of
information supplied by the Industrial User, whether the
Industrial User is in compliance with Pretreatment Standards,
Upon request, the (State Agency) will provide to EPA copies of
all notices received from POTWs that relate to a new or changed
introduction of pollutants to the POTW.
Section 2. Requests for Categorical Determination
The (State Agency) shall review requests for determinations
of whether the Industrial User does or does not fall within a
particular industrial category or subeate-gory. Th* (State
Agency) will make a written determination for each request
stating the reasons for the determination. The (State Agency)
shall then forward its findings, together with a copy of the
request and any necessary supporting information, to the EPA
Regional water Management Division Director for concurrence.
If the Water Management Division Director does not modify the
(State Ag_ency_) decision within 60 days after receipt thereof,
the (State 'Agency) fincJingg-Ls final. A copy of the final
determination shall be sent to the requestor and to the (sta. t e
Age_ncy_).
Section 3. Removal Credits and
POTW Pretreatment__Program_Ap_grovals
The (State Agency) shall review and approve POTW applica-
tions for POTW pretreatment program authority and POTW applica-
tions to revise discharge limits for users who are, or may in
the future be, subject to categorical pretreatment standards.
It shall submit its findings together with the application and
supporting information to the EPA Regional Water Management
Division Director for review. No POTW Pretreatment Program
or request for revised discharge limits shall be approved by
the (S_t_a t e Age n cy) if EPA objects in writing to the approval
of such submission in accordance with 40 CFR 403.11(d).
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Section 4. Variances From Categorical Standardjs
For Fundamentally Different: Facto_r_s
The (State_Agency) shall make an initial finding on all
requests from Industrial Users for fundamentally different
factors variances from the applicable categorical Pretreatment
Standard. If the (State Agency) determines that the variance
request should be denied, the [State, Ag_e_ncy) will so notify
the applicant and provide reasons for its determination in
writing. Where the (5 tat_e_ Agency' s ) initial finding is to
approve the request, the finding, together with the request
and supporting information, shall be forwarded' to the EPA
Regional Water Management Division Director for a final
determination. The ( S ta_t e_ A_g_ency) may deny, but not approve
and implement the fundamentally different factor(s) variance
request until written approval has been received from the
Water Management Division Director.
If the Water Management Division Director finds that Fun-
damentally different factors do exist a variance reflecting
this determination shall be granted. If the Water Management
Division Director determines that fundamentally different
factors do not exist, the variance request shall be denied
and the (State Ag_e_n_cy) shall so notify the applicant and
provide reasons for the denial in writing.
Section 5. _Net/_Gross ftdjustments _tq Categorical Standards
If the (S ta te Agency) receives a request for a net/gross
adjustment of applicable categorical standards in accordance
with 40 CFR 403.15, the (State Agency) shall forward the appli-
cation to the Water Management D" iv ision Director for a deter-
mination. Once this determination has been made the Water
Management Division Director shall notify the applicant and
the applicant's POTW and prov.ide reasons for the determination
and any additional monitoring* requirements the Water Management
Division Director deems necessary, in writing.
Sect ion 6. ^Miscellaneous
The (State Agency) will submit to the EPA Regional Water
Management Division Director a list of POTWs which are required to
develop their own pretreatment program or are under investiga-
tion by (State Agency) for the possible need for a local
pretreatment program. The State will document its reasons for
all deletions from this list. Before deleting a.ny POTW with a
design flow greater than*5 million gallons per day (mgd), the
State will obtain an industrial survey from the POTW and determine
(1) that the POTW is not experiencing pass through or interference
problems; and (2) there are no industrial users of the POTW that
are subject either to categorical standards or specific limits
developed pursuant to 40 CFR 403.5(c), The State will document
all such determinations and provide copies to EPA. For deletions
of POTWs with flows less than 5 mgd, the State will first
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- 4
determine (with appropriate documentation) that the POTW is
not experiencing treatment process upsets, violations of POTW
effluent limitations, or contamination of municipal sludge due
to industrial users. The State will also maintain documentation
on the total design flow and the "nature and amount of industrial
wastes received by the POTW.
The (5_t_a_te_ Agency) and EPA will communicate, through-the
§106 planning process, commitments and priorities for program
implementator! including commitments for inspection of POTWs and
industrial users. The SEA will contain, at a minimum the
following: (1) a list of permits to be issued by the (State
Agjsncv^} to POTWs and Industrial Users subject to pretreatment
requirements; and (2) a list of POTWs and Industrial Users to
be audited or i nspected.
Section 7. _Qth_e_r_ Provisions
Nothing in this agreement is intended to affect any pre-
treatment requirement, including any standards or prohibitions
established by State or local law, as long as the State or
local requirements are not less stringent than any set forth
in the National Pretreatment Program, or other requirements
or prohibitions established under the Act or Federal regulations.
Nothing in this Modification shall be construed to limit
the authority of the EPA to take action pursuant to sections
204, 208, 301, 304, 306, 307, 308, 309, 311, 402, 404, 405,
SOI, or other sections of the Act (33 U.S.C §1251 et seq).
This modification1 will become effective upon the U.S. EPA
Regional Administrator's approval of the (SJia te Agency ' s )
pretreatment program application.
FOR THE STATE AGENCY:
BY;
State Director (Date
State Agency
FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
Regional Administrator (Date'
Region
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Model MOA
General Permits
AMENDMENT
TO THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
MEMORANDUM OF AGREEMENT
BETWEEN
(State Agency}
AND THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION
The Memorandum of Agreement between the United States Environmental
Protection Agency, Region _^_ (hereinafter EPA) and the (State
Agency) (hereinafter )is hereby amended to include (State
Agency) and EPA responsiFilities for the development, issuance
and enforcement of National Pollutant Discharge Elimination
System {hereinafter NPDES) general permits as follows:
The (State Agency) has the responsibility for developing and
issuing NPDES general permits., After identifying dischargers
appropriately regulated by a general permit, the (State Agency)
will collect sufficient effluent data to develop effluent
limitations and prepare the draft general permit.
Each draft general permit will be accompanied by a fact sheet
setting forth the principal facts and methodologies considered
during permit development and will be transmitted to the following
EPA offices:
Water Management Division Director
U.S. EPA, Region
(Address)
Director, Office Water Enforcement and Permits*
U.S. EPA (EN-335)
401 M Street SW
Washington D.C. 20460
EPA will have up to ninety (90) days to review draft general
permits and provide comments, recommendations and objections
to the (State Agency). In the event EPA does object to a
general permitit will provide, in writing, the reasons for
its objection and the actions necessary to eliminate the
objection. The State has. the right to a public hearing on the
objection in accordance with 40 CFR 123.44 and Part III of
the MOA. Upon receipt of EPA's objection, the State may
* General permits for discharges from separate storm sewers
need not be sent to EPA Headquarters for review.
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request a public hearing. If EPA's concerns are not satisfied
and the State has not sought a hearing within 90 days of the
objection, exclusive authority to issue the general permit
passes to FPA.
If EPA raises no objections to a general permit it will be
publicly noticed in accordance with (insert State requirements:
and 40 CFR 124.10, including publication in a daily or
weekly newspaper circulated in the area to be covered by the
permit. The (State Agency) will issue and administer NPDES
accordance with
and 40 CFR 122.28"
general permits in
State regulations)
insert citations to
The (_St_a t,j5 Agency) also has the primary responsibility for
conducting compliance monitoring activities and enforcing
cond i t ions and requi rements of general permits.
All specific State commitments, regarding the issuance and
enforcement of general permits will be determined through
the annual 106 workplan/SEA'process.
This Amendment
effective upon
permits program
EPA Region .
to the Memorandum of Agreement will be
approval of the (State Agency's) general
application by the Reg ional Admi nistrator of
FOR (State Agency!
Director
Date
FOR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
Reg ional Administrator
U.S. EPA, Region
(Date)
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PROGRAM DESCRIPTION
-------
SCOPE AND STRUCTURE OP THE STATE PROGRAM
The essential elements of the program which the Natural Resources
Environmental Protection Cabinet (NREPC) proposes to utilize in the administration of
the Kentucky Pollutant Discharge Elimination System (KPDES) are described in the
following1 material Additional information concerning the Cabinet's procedures may also
be found in the annual program submission under sections 106 and 205(g) of the Clean
Water Act (as amended to the Federal Water Pollution Control Act).
Since 1950, the Commonwealth has administered a water pollution control permit
program that regrulates all point source discharges into Kentucky waters. Current
procedures include: (1) The Cabinet's Division of Water receives an application for a
construction permit; (2) Site survey is conducted by Division of Water personnel; (3)
Notice of effluent limitations for a proposed facility that comply with Kentucky Water
Quality Standards? (4) The applicant submits detailed plans and specifications; (5) Review
and revision or approval of the plans by the Division of Water; and (6) Issuance of
construction and later, operational permits. This permit program has been supported by a
surveiHance/eomplisoice program and when necessary, an enforcement and/or legal
referral program. Both will continue under the proposed KPDES program and are further
described in COMPLIANCE MONITORING AND ENFORCEMENT PROGRAM.
With the passage of PL-92-500 and more recently PL-95-217 (The Clean Water Act),
a dual permitting action with the Cabinet issuing permits under state law and the
Environmental Protection Agency (EPA), Region TV, issuing permits under federal law, has
evolved The federal permits are issued pursuant to the National Pollutant Discharge
Elimination System (NPDES), a regulatory program whicn imposes oetaiied pollution
control requirements. The Clean Water Act stipulates that KPDES permits must; (1)
Limit discharges of effluents based upon the national technology-based guidelines and
where necessary, water quality standards; (2) Impose schedules of compliance for the
permittee to complete construction or to install new pollution control technology; and (3)
Require permittees to monitor their discharges and report results and violations to the
permitting agency.
Kentucky is presently taking action to eliminate this duplicative process. Through
this formal request, the Governor, is petitioning EPA for delegation o/ the NPDES
authority to the Commonwealth. The NREPC proposes a single water pollution control
permit program, which will reguiate the construction of and discharge from wastgwater
treatment facilities, be implemented.
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In the NREPC, the Division of Water, with the enabEng legislation under Kentucky
Revised Statutes (KRS), will be the stete agency for the purposes of this program and has
been so designated by the Governor. It is recognized that certain changes in procedure
are necessary in order to comply with federal requirements for administration of an
NPDES—equivalent program at the state level, and these have been undertaken. This is
addressed in the DESCRIPTION OF STATE PROCEDURES. Regulations for
administration of KPDES were proposed, reviewed by EPA, and formally adopted by the
Cabinet, These are contained in the application as Appendix A.
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ORGANIZATION AND STRUCTURE OF TEE LEAD AGENCY
The Natural Resources and Environmental Protection Cabinet (NREPC) is the
primary agency in the -executive branch of Kentucky state government for all
environmental control activities. The Cabinet is hetded by a Secretary, who reports
directly to the Governor of the Commonwealth of"Kentucky. The NREPC is structured in
Departments, Divisions, Branches, Sections and Units, in descending order of
responsibility jurisdiction.
In the NREPC, three Departments operate the program functions of the agency:
Department for Environmental Protection; Department for Natural Resources; and
Department for Surface Mining Reclamation and Enforcement, The Cabinet is
coordinated and managed by program administration offices which report directly to the
Secretary,
The organization of State government from the Cabinet level to the Division Branch
level is presented in Figures 1 through 3. The various programs of DEP are combined
internally under the Office of the Commissioner into the four divisions, each.headed by a
«
Director.
In accordance with KES 224, the Division of Water's responsibilities for water
pollution control occasionally involve other environmental issues. The primary function of
this PROGRAM DESCRIPTION is to specifically identify units within the Cabinet
that wifl implement the KPDES program. Although the bulk of this information will be
presented under DESCRIPTION OF STATE PROCEDURES, the following overview of the
Cabinet's organizational structure will establish the context within which the Division of
Water operates.
COORDINATING FUNCTIONS OF THE CABINET: PUBLIC INFORMATION. A
component of the Cabinet's ability to effectively implement any new environmental
program is the opportunity for citizen involvement in the policy formulation process. In
the Natural Resources and Environmental Protection Cabinet, this is handled through
several avenues.
The most visible forum for the exchange of views concerning ideas, information, and
recommendations relating- to the quality of the natural environment is the Environmental
Quality Commission (EQC). The EQC is a seven member advisory board appointed by the
Governor to advise the Secretary on all matters within his/her responsibility. The EQC
meets to review plans, programs, and policies of the Cabinet end recommends adoption
-------
and rejection. In this function, the EQC will be instrumental in reviewing and providing
input to the KPDES program.
The structural position of the EQC is shown in Figure 2. As an advisory body, EQC
is not organized within the Cabinet; nonetheless, it works closely with all units in the
agency. The EQC reports its findings and recommendations directly to the Secretary and
the Governor.
Also indicated on this chart is the Secretary's Office of Communications and
Community Affairs (OCCA). This office, functioning within the Cabinet, distributes
information about upcoming Cabinet activities relevant to the public. Ln addition, OCCA
assists the Divisions in scheduling, publicizing and developing public hearings, workshops,
rf
seminars and related programs for the regulated community, interested citizens and other
local, State and Federal agencies. The Divisions notify OCCA, through the respective
Departments, of upcoming needs in the area of publjc information, In turn, OCCA solicits
input from the Divisions and Departments concerning various communication issues such
as press releases, public hearings, and the Cabinet newsletter. OCCA also assists the
Divisions in notifying- the EQC of upcoming events. . ...
COORDINATING FUNCTIONS OF TEE CABINET: LEGAL AFFAIRS. The Office of
the Secretary administers the other support services which the Departments of the
Cabinet collectively employ to implement their programs. Such responsibilities as
personnel actions, fiscal and administrative duties, and especially, legal assistance, are
coordinated through this office. All legal functions are the specific responsibility of the
Office of General Counsel (OGC) which, as shown in the Cabinet's organization chart,
reports directly to the Secretary. OGC is staffed with approximately thirty-seven
attorneys and legal assistants who conduct the broad range of legal activites generated by
environmental regulation. In such a role, the legal issues of wastewater management in
Kentucky are but one of the concerns of OGC. Because of the extensive ea.se load of
OGC, some areas of case preparation and informal hearings are delegated to the
programmatic Divisions of the Cabinet. The relationship between OGC and the Division
of Water is further described in the section, COMPLIANCE MONTTORJNG AND
ENFORCEMENT PROGRAM-
STRUCTURE AND FUNCTION OF THE DEPARTMENTS. Each Department is
headed by a Commissioner, who reports to the Office of the Secretary. Commissioners
are often assisted by a Deputy Commissioner and/or a staff assistant Within each
Department, functional areas of responsibilities are organized into Divisions, the actual
programmatic units of the Cabinet
4
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EXECUTIVE BRANCH
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-------
NATURAL IlliSOUnCI-ja AND ENVIIIONMISNTAI,
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-------
For example, within the Department for Environmental Protection's organizational
structure, the functional unit which implements Kentucky's KPDES program is the
Division of Water. A further detailing of the Department for Environmental Protection
follows, in order to specify water Quality-related coordination issues,
DEPARTMENT FOR ENVIRONMENTAL PROTECTION: The Department for
Environmental Protection (DEP) was established as part of NREPC by the Governor in
July 1982. Headed by a Commissioner, the Department has three divisions that have the
responsibility for the protection of the Commonwealth's air, land and water. An
additional division provides laboratory and biological support to the other three divisions.
Collectively, the Department now employs over 350 people within central offices in
Frankfort and in 12 district offices throughout the Commonwealth. The Division of Water
has the responsibility for implementing and maintaining the KPDES program.
Current agency policy and purpose for water protection and conservation are set
forth in KRS 224.020 as foDows "....to provide a comprehensive "program in the public
interest for the prevention, abatement and control of pollution, to provide effective
means for the execution and enforcement of such programs; and to provide for
cooperation with agencies of other states or of the federal government in carrying out
these objectives."
The Department for Environmental Protection is responsible for protecting and
maintaining the quality of Kentucky's land, water, and air resources. In order to meet
these goals, the Department regulates air pollution sources, public and semi-public water
treatment facilities, sewage treatment plants, water pollution discharges, and the disposal
of hazardous and nonhasardous wastes. The Department's organization chart is shown in
Figure 3,
As a managerial coordinating structure, the Department provides an oversight role
for the four Divisions, The Division Directors report to the Commissioner and meet with
him weekly. As manager of the Department, the Commissioner identifies jurisdiction^
areas for the Divisions, assures program integration, assists in resolving any problem
areas, and helps set priorities for the four Divisions, An understanding of other Division's
responsibilities in this Department is important in clarifying central coordination issues of
the water pollution control program. The responsibilities of these Divisions follow.
The Division of Air Pollution Control is responsible for the prevention, abatement,
and control of air pollution, in addition to the implementation of air quality regulations
related to the Federal Clean Air Act. The Division of Air Pollution Control reviews all
-------
construction and operating- permit applications for mir contaminant sources including PSD I
sourets. Also, the Division is responsible for protecting the public from excessive
emissions of hazardous air pollutants and the operation of an ambient air quality
monitoring network to gauge progress toward meeting air quality standards.
The Division of Water is responsible for implementing the Safe Drinking Water Act
•»***
through the Kentucky Public and Semi-Public Water Regulations. The Division's efforts
are directed toward ensuring the bacteriological safety and chemical quality of public
drinking water supplies. This includes the review and approval of technical plans for
public water supply systems, field inspections and surveillance for the proper operation
and maintenance of water supply facilities, analysis and interpretation of water samples
submitted to the state laboratories, and training and certification of waterworks
personnel. The Division of Water is also responsible for reviewing plans for dams and
floodplain construction pursuant to KRS Chapter 151. The Division of Water also
administers the State's water poEution control profrrtm. This program is described under
OF STATE PROCEDURES.
. The Division of Waste Management is responsible for regulating the management of
nonhazardous and hazardous wastes in a manner that'will protect the public health and '
welfare, prevent the spread of disease and creation of nuisances, conserve our natural"
resources, and enhance the quality and beauty of our environment. This Division also
manages the Commonwealth's resource conservation and recovery program, which
includes waste paper recycling, waste oil recovery and abandoned car programs.
The Division of Environmental Services provides analytical capability and biological
study support to the other three Divisions. These services include wastewater sample
analyses, ambient stream sample analyses, and aquatic flora and fauna surveys, as needed.
Soma overlapping jurisdictions! areas which require coordination fit the
Departmental level are obvious from these four Divisional descriptions. As these issues
specifically to the of waste water discharge permits under K?DES,
however, they can be as follows; (1) environmental (2)
ground water monitoring, regulation and strategy development, and; (3) the development of
laboratory services* The manner in which each issue relates to the Division of Water and
subsequently to the NPDES delegation process, is highlighted as follows:
(1) Environmental Spill Response. The multifaceted demands of an.environment&l
emergency incident require skills and expertise existing throughout state
government Depending on the emergency situation^ the Natural Resources
and Environmental Protection Cabinet, as well as the State Fire Marshal's
-------
Office, State Police, Division of Disaster and Emergency Services, and
Department of Transportation, etc, respond. Hazardous and/or toxic spills
almost always involve personnel from the Division of Water, However,
personnel from any of the state agencies listed above^ as well as staff from
other Divisions within trie Department, may also be involved.
<**«
The need for a weD planned, coordinated and consistent response effort by the
Department has been recognized To meet this need, Departmental personnel
have been identified and strategically located throughout the State to form an
Environmental Response Team (ERT). The ERT acts as the backbone for the
Department's environmental response activities.
The ERT is staffed by Departmental personnel who act as the coordinator for
environ mental incidents within a designated area- Specifically, for a
hazardous arid/or toxic incident, they coordinate the activities of each
Division's field representatives.
All spQls are reported first to the Environmental Response Coordinator who in
turn, contacts other personnel within the Department who should be involved.
For instance, if a spill were reported, the ERT Coordinator might contact the
Division of Water's designated staff member. Emergencies are thus handled by
the appropriate Departmental personnel,
(2) Groundwaier Monitoring, Regulation and Strategy Development A key issue
in the conduct of an adequate public health and environmental protection
program is the development of a comprehensive groundwater strategy for the
protection of underground sources of drinking water. The thrust of activity in
this area rests with the Division of Witer as part of its duties in the area of
implementing the Safe Drinking Water Act, The Division of Water has the
responsibility for the development of groundwater controls while coordinating
with other'Divisions and Departments in the Cabinet,
4
Inherent in this strategy is progress toward more complete control of
underground injection wells in the State. In August of 1979, the Division of
10
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Water initiated an aquifer mapping program and an inventory of weUs. Two
underground injection wells for hazardous waste arc located in the Stats and
are permitted through the Division of Water. In addition, the Division of
Waste Management requires underground injection wells which dispose of
hazardous waste to register as a facility and meet the "Interim status"
hazardous waste facility requirements.
(3) Laboratory capability. Regulatory emphasis on toxic and hazardous substances
has placed increasing on the Department's environmental monitoring
programs to collect and analyze wastewater and ambient samples for these
pollutants. As the regulatoisy programs are implemented, demands for
pollution assessments (air, water, waste, tissue, soil and sediment) increase.
The Natural Resources and Environmental Protection Cabinet, in conjunction
with EPA's Region TV, has developed the basic analytical capabilities to meet-
demands,
Because the Division of Environ mental Services wot* will be a support activity
for KPDES, further information is provided on this irader ITEMIZATION costs
of the KPDES program. Basically, laboratory capabilities for the Division of
Water are met through the Division of Environmental Services, Contracts
with private laboratories in the state are also arranged on an as-needed basis.
These contracts are using two mechanisms - small purchase orders
and major personal service contract arrangements, EPA's Region IV
laboratory provides priority laboratory analysis for emergency spills and/or
STEUCT0RE OF THE DIVISION OF WATER, Because the administration of a
is the of the PROGRAM DESCRIPTION, other Division of Water
functions such as floodpMn management or drinking water will not be extensively
described. Figure 4 diagrams the organization of the Division of Water and shows the
relationship between the six branches,
Each branch of the Division of Water will be involved to some extent in the KPDEf
permit program. Administration of the KPDES permit program will be the primary
responsibility of the Director, Division of Water, acting through the Permit
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-------
Branch. A summary of each Branch's personnel and responsibilities will delineate their
involvement: (1) The Permit Review Branch, Figure 5, has two wastewster sections:
Municipal and Commercial and Industrial and SynfueL These two sections wQl be
responsible for drafting and issuing KPDES permits with support from the other sections
as needed. A detailed description of the drafting and issuing process is provided under
DESCRIPTION OF STATE PROCEDURES; (2) The Program Development Branch consists
of a Management Planning Section with environmental and engineering personnel under a
supervisor and a Standards and Specifications Section with three environmentalists, three
engineers and a program coordinator. This Branch provides technical assistance to the
permit writers with respect to water quality-based limits; (3) The Drinking Water Branch
consists of a Compliance Evaluation Section with two clerks, an environmental program
coordinator and an engineer and a Plans Review Section with three engineers and an
environmental control supervisor. This Branch can supply permit writers with information
on downstream drinking water intakes as it may affect effluent restrictions; (4) The Field
Operations Branch includes nine district offices with a total of twenty-seven inspectors
and six engineers (refer to Figure.6 for office boundaries). This Branch is responsible for
conducting routine inspections of wastewater dischargers and for performing occasional
sampling to check effluent compliance. Complaints investigation and enforcement-
related surveillance are also duties of this Branch; (5) The Enforcement Branch has three
sections, a Case Preparation Section with three environmentalists, a Dam Safety
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to portions of several Division of Water programs, including those that involve
wastewater permitting. The planning and coordination of KPDES public hearing's (see
DESCRIPTION OF STATE PROCEDURES) w02 also be a function of this section; and (7)
The Director's Office, which consists of the Director and an Assistant Director, serves a
Divisional coordination role between the various programs within the six branches.
Important functions of this office are the overall management of public information and
participation and the monitoring of program commitments/deadlines.
COORDINATION WITH OTHEK AGENCIES. A document is provided that sets forth
the respective obligations and roles of the Commonwealth and the Environmental
Protection Agency with respect to KPDES. Please refer to "MEMORANDUM OF
AGREEMENT", later in this application,
Although not expressly concerned with wastewater permitting, NREPC has
est&bUshed policies for coordinating with other state and federal agencies. These include
the UJS. Army Corps of Engineers and the Sod Conservation Service concerning review of:
water quality impacts of dredge and fill activities and suitable design and placement of"
animal waste handling facilities, respectively,
Depending upon the identity of the permittee and the location of the discharge,
•NUEPC will send copies of KPDES public notices and fact sheets to the following: Corps
of Engineers District Office, U.S. Fish & Wildlife, ORSAKCO and/or adjacent state's'
water pollution control authorities,
ITEMEED' COSTS OF THE KPDES PROGRAM The federal NPDES program
regulations require an itemization of the estimated costs of establishing and administering
the program for the first.two years after approval, including the cost of the personnel
listed in the program description and the cost of administrative and technical support.
Because the PROGRAM DESCHPTTON, under the heading "$eq>e and Structure of the
Division of Water" describes the functions and duties of the personnel in each section and
branch of the Division, the are calculated in corresponding terms. This PROGRAM
DESCRJFTION identifies the of personnel and indirect funcfing for the functions of
each section of the Divisions of Water and Environmental Services, which will be
allocated toward KPDES activities.
Table I identifies, by program unit and position classification, the total work years
the Division of Water will expend in the KPDES program for a one-year period. Table L
includes similar information for the Division of Environmental Services, These tables
include only those positions in the Divisions whose workload will be affected by KPDES
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DIVISION or
DISTRICT orricr .../
1. Paducah District Office
2. Madlsonvllle District Office
3.. Bowling Green District Office
4. Columbia District Office
5. Frankfort District Office
6. Florence District Office
7. London District Office
0. Morehead District Office
9. Hazard District Office
-------
f
and thus, aH positions in the two Divisions are not listed. In addition, support functions of
the management and service functions of the Cabinet are not listed, even though these
will be affected somewhat by KPDES delegation* This includes man years from OGC
which will handle legal assistance or adjustments, hearings, litigationa and advice to the
Cabinet on the KPDES program. Funding for those types of expenditures are covered
t under the item D in Table FV, as indirect costs of the program. Thus, the total salary and
fringe benefit costs of the personnel to implement KPDES for one year will be
$1,097,333.00. Table HI totals this information with the indirect costs, for the salary
costs for the salary/fringe and provides the total KPDES program cost per year as
$1,581,366.00.
FTEMIZATIGN OF SOURCES AKD AMOUNTS OF FUNDING
Table IV lists the sources of funds for the next two fiscal years, since the state will
be in FY 84 by the time the program is delegated. The Cabinet has three basic sources of
funding for KPDES: the federal "Water Pollution Control Program Grant", state general
funds and -agency receipts. Information from U.S. EPA indicates that the federal grant
will increase somewhat for FY 84 but decrease in FY 85. The decrease in available funds
will be offset somewhat by the KPDES permit fee. State law provides that the Cabinet
may assess a fee for the costs of processing permit applications. The Cabinet has
promulgated a fee system based on this statute, which will provide revenues for one
portion of the KPDES program permit review.
Item C in Table IV indicates the fees which will be obtained from processing the
types of permits which EPA wiU be turning over to the state. The Cabinet obtained an
estimate of the types and numbers of permits to be issued over the coming two "years,
assuming the NPDES program is delegated in early FY 84. This information is listed in
Table V,
The Cabinet is planning to issue permits based on the following priority:
Major Primary Industry
Major Municipal
Federal Facilities
Major Secondary Industry
Minor Primary Industry
Minor Secondary Industry
Mm or
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The Cabinet anticipates issuing aU the major permits during FY 84 and most of the
minor and non-process categories in FY 85. Thus, the total permit fees, together with
state fund appropriations, will support the cost of the program.
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TABLE L STATE AGENCY STATF ALLOCATIONS FOE SPDES
DIVISION OF WATEE*
JKIT
EMPLOYEE TITLE
PERCENTAGE
OF ONE WORK
TEAS IN KPDES
SAJLAHY
EXPENSE
DIVISION OFFICE
Program Coordination
ind Assistance Section
Division Director I
Env. Cont. Assistant Director
Secretary Administrative
Program CoortJinator
Environmental Cont. Supervisor
Data Processing Liaison
a£B.MTT REYDEW BRANCH Environ, Engineering Branch Mgr.
Secretary Chief
duniejpal and Commercial
Section
Environmental Engineer Chief
Word Processor Operator Prin.
Environmentalist
Environmental Engineer
Engineering Tech. Assoc. Sr,
En vtronmen t
0.20
0.20
0.10
O.SQ
0.20
1.00
0.10
1.30
0.45
0.35
0.80
0.75
0.55
QJQ
1.00
LOO
1.00
$29,660.00
519,197.00
5.10
5109,201.00
ndustrial_and Synfuel
•action
Engineering Tech. Assoc. Prin.
Engineering Tech. Assoc. Prin.
Env iron mental Engineer
Engineering Tech. Assoc. Sr,
Environmentalist
Secretary Principal
Environmental Engineer
0.80
0.75
1.00
1.00
1.00
1.00
1.00
6.S5
$116,422.00
'For description of the function of each organizational element. Costs for each program (for
Cample, enforcement) are obtained by multiplying the SALARIES for the pertinent UNIT(S) by
,44, See FACTOR in Table'iV.)
19
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entorv and Data
Management Section
EMPLOYEE TITLE
Environmental Program Coord.
Environmentalist (FFTL)
Clerk Chief
Clerk Chief
PERCENTAGE
OF ONE WORE
TEAR IN KPDES
0.50
0.80
0.80
1.00
SALARY
EXPENSE
Grants Engineering Section Environmental Engineer
Environmental Engineer
Environmental Engineer
ENFORCEMENT BRANCH
Case Preparation Section
Certification Section
FIELD OPERATIONS
BRANCH
Columbia Section
Environmental Eng. Branch Mgr,
Office Supervisor
Secretary Principal
Environmental Engineer Chief
Environmentalist
Environmentalist
Environmentalist •
Environmental Engineer Chief
£jiv. Engineering Branch Mgr.
Environmental Control Area Sup.
Secretary Chief
Envir. Cont, Area Supervisor
Environmental Inspector
Environmental Inspector Sr.
Environmental Inspector (PT)
Environmental Inspector Sr.
Environmental Injector Sr.
1.00
1.00
1.00
3.00
0.15
0.40
0.20
1.00
0.50
0.30
0.75
2.55
0.45
0.45
0.30
0.50
O.SO
1.40
0.20
0.30
0.30
0.50
0.20
$50,695.00
$77,616.00
512,854.00
$58,433.00
$12,836.00
$28,286.00
2.00
39,988.00
20
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Florence Section
Frankfort Section
Hazard/London Section
fowling Creep Section
Morebead Section
EMPLOYEE TITLE
Envir. Cont Area Supervisor
Environmental Inspector
Environmental Inspector
Secretary Chief
Environmental Inspector
Environmental Inspector
Environmental Inspector
Secretary Chief
Environmental Inspector Sr.
Envir, Cont. Area Supervisor
Environmental Injector Sr=
Environmental Inspector
Environmental Inspector
Environmental Inspector
Environmentalist
Environmental Engineer
Secretary Chief (PT)
PERCENTAGE
OF ONE WORK
IN KPDES
0.30
0.20
0.30
0.40
Environmental Engineer Chief
Environmental Injector
Environmental Inspector '
Environmental Inspector Sr.
Environmental Engineer
Environmental Inspector
Environmental Engineer
Environmental Inspector
Environmental Injector
Secretary Chief
Environmental Engineer
Cont. Area Supervisor
Environmental Inspector Sr.
Environmental Inspector Sr,
Environmental Inspector
Secretary Principal (PT)
Environmental Inspector (PT)
SALARY
EXPENSE
1.20
0.40
OJO
0.20
0.40
0.30
1.60
0.20
0.40
G.9Q
O.SO
0.30
0.40
0.20
0.70
4.40
0.30
0,30
0.20
0.40
0.40
0.30
0,30
O.SQ
0,60
O.SO
0.30
0.10
0.20
0.40
0.30
0.60
T20A20.00
27,908.00
579,958.00
$86,527,00
1.90
§34,493.00
21
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UOTT
EMPLOYEE TITLE
PROGRAM DEVELOPMENT
BRANCH
Standards
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TABLE H: STATE AGENCY STAFF ALLOCATIONS FOR KPDES
DIVISION OF ENVIRONMENTAL SERVICES
UNIT
EMPLOYEE TTTLE
PERCENTAGE
OF ONE WORK SALARY
YEAH IN KPDES * EXPENSE
DIVISION OFFICE
ORGANIC BRANCH
EN-ORGANIC BRANCH
BIOLOGICAL BRANCH
Division Director H
Secretary Administrative
Word Processor Operator Prin.
Chemist Chief
Chemist Senior
Chemist Senior
Chemist Senior
Lab Assistant
Chemist Senior
Chemist
Chemist
Chemist
Chemist
Chemist
Chemist
Chemist
Chief
Senior
Senior
Senior
Senior
Senior
Senior
Environmental Supervisor
Environmentalist Senior
Microbiolog-ist Senior
Environmentalist Senior
Environmentalist Senior
TOTAL WORK YEARS
& DIVISION OF ENVIRONMENTAL
SERVICES TOTAL SALARY COST
0.15
0.15
0.60
0.15
0.30
0.30
0.10
0.05
0.10
1.00
0.15
O.OS
O.OS
0.30
0.30
0.20
0.20
1.25
0.10
0.10
0.20
0.10
0.35
O.S5
3.70
$13,147.00
21,504.00
$27,261.00
$18,314.00
$80,226.00
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TABLE m. TOTAL PERSONNEL COSTS ALLOCATED TO KPDES
FOR TWO YEARS
ITEM COST
A. Salaries
Division of Water $861,691.00
Division of Environmental Services . • 80,226.00
$941,917.00
B. Fringes (16,5%) $155,416.00
(Retirement, PICA, Insurance)
C. Total Salaries and Fringes $1,097,333,00
D. Indirect Costs
Rate = .4411
The rate of indirect costs is based on
the "Indirect Cost Negotiation Agreement",
dated June 9, 1982 $484,033.00
TOTAL COSTS PER YEAH $1,581,356.00
TOTAL KPDES PROGRAM $3,162,732.00
COSTS FOR TWO YEARS
The indirect cost rate contained in this table is the rate negotiated by the Kentucky
Nature! Resources and Environemntal Protection Cabinet and the U.S, Department of
Agriculture - Forest Service, in accordance with the authority contained in attachment A
Section J.4. of OMB Circular A-87. The rate is a fixed type applicable to ail water
grants, contracts and cooperative agreements with the Federal Government. The
"Indirect Cost Negotiation Agreement" lists the composition of the indirect cost pool as
follows: Office of the Secretary, Administration and Fiscal, Special Projects, Personnel,
General Counsel, Communications, Management Services and Operations,
The "Indirect Cost Negotiation Agreement" was signed by H.Scott Hankla, Director
of the Division of Administration and Fiscal Affairs NREPC, on June 18, 1982 and by CJL
Tipton, Director, Fiscal and Accounting Management, U.S. Department of Agriculture,
on June 9, 1982.
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TABLE IV. SOUBCES OF FUNDING FOE KPDES
' FOR A TWO-TEAS PERIOD
SOUBCES ESTIMATED
FUNDS AVAILABLE
A. EPA-Water Pollution Control Grant (106)1 $474,000.00 $205,220.00
B. State Funds? $936,450.00 $1,204,280.00
C. Agency Receipts for KPDE53 $174^550.00 $174,500.00
FUNDING AVAILABLE FOR $1,585,000.00 $1,585,000.00
TWO-YEAR PERIOD
estimates are based on a preliminary projection of federal funds, document from
EPA, "FY 19S3 and FY 1984 Budget Information for States," CFDA Program: "Water
Pollution Control - State and Interstate Program Grants ClOSX.* Figures in the table
represent 60 percent of the total funding projected to be available under this grant,
2$tate budget figures are based on estimates needed from the "Regular Appropriation" of
the state General Fund, if federal funds decrease in the amounts estimated. FY 84 funds
are part of the approved state executive budget (SEE). The figures in table IV for FY 85
represent approximately 50 percent of the state's "Regular Appropriation" of the General
Fund for water programs. The "Regular Appropriation" does not include the categories of
"Agency Receipts" and "Federal Funds," The FY 85 estimate has been prepared as part of
the proposed biennial budget for the Cabinet.
projection is based solely on the number of applications EPA estimates wDl be
delivered to the Commonwealth for eventual issuance.
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TABLE V.
NPDES APPLICATIONS
TRANSFERRED TO THE CABINET FOR KPDES
TYPE* NUMBER" SINGLE FEE TOTAi
Major coal washers 88 $800 $54,400
Minor coal mines 1310 SO 87,500
Major municipality 100
Major primary industry 4S 800 39,200
Major secondary industry 1 800 800
Minor primary industry 43 500 21,500
Large non-POTW 27 400 10,800
Minor secondary industry 167 500 83,500
Small non-POTW 108 200 21,600
Non-process . 166, • 300 49,800
Minor municipality 86 0 0
TOTAL FEES PROJECTED $349,100
FOR TWO-YEAR PERIOD
•The number of permits EPA expects to transfer to the state was estimated by Region TV
personnel in March, 1983. The types were estimated to correspond to the state fee
system categories.
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DESCRIPTION OF STATE PROCEDURES
GENERAL ADMINISTRATIVE PROCEDURES. Applications for new, revised or
reissued KPDES permits must be filed in accordance with the requirements set forth in
KPDES regulation 401 KAR 5:060, TtPDES APPLICATION REQUIREMENTS". This
regulation outlines the content, format and timing of information submitted to the
Division as application for a KPDES permit and identifies who may act as Cabinet-
approved signatories on permit applications and related documents.
Copies of each of the KPDES application forms are included here under FORMS
USED FOR STATE PROGRAM, These forms differ only slightly from the corresponding
federal forms used by EPA for NPDES permits. This similarity in format and the
Cabinet's acceptance of those NPDES applications previously submitted to EPA Region IV,
(if current), should minimise the difficulties in the transfer to a state-level program.
SPECIFIC ADMINISTRATIVE PROCEDURES. Figures 7 and 8 show the overall
permit review procedures for proposed facilities and existing facilities, respectively.
Each step on either flowchart is identified by a number for detailed description under
Table VI. KPDES ISSUANCE PROCEDURES. ' Table 1 also designates which
organizational unit within the Cabinet will be responsible for each procedural step.
Figure 7 provides for the issuance of a permit to construct a wastewater treatment
facility, prior to that facility having received authority to discharge wastewater under the
KPDES, Current state regulations for construction approval do not require the possession
of a valid NPDES permit. In addition, the issuance of the federal permit does not assume
a prior satisfactory design/constuction review by the state or federal agency. •
Clearly, it would be in the applicant's better interests if construction of new
facilities could be postponed 30-45 days after receipt of a construction permit to allow
for a favorable agency determination on the applicant's KPDES application. However, the
Division of Water is not currently constrained by regulation to withhold construction
approval until such time as authorization to discharge is granted. This provides the
applicant with a concurrent KPDES review/construction period if project schedules
require rapid construction. This option should remain available under KPDES permit
delegation.
-------
^ START ^
V 1
APPL. REC.'D
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-------
START
APPL. R£C'D.
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/\
REQUEST
ADDITIONAL
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CONSIDERED
/\
lla
AND XSSUAW-CZ PROCSDCPXS
(FOR EXISTING FACILITIES)
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SUBJITTT*
DATA
FACILITY
INSPECTION
(OPTIONAL)
EFT. LIMITS
V
PROP.
DISCUSSED
W/APPL.
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ISSUE
ODES
PSSMIT SCJT
TO PITS LIC
vriTTr"
-------
TABLE VL EPDES ISSUANCE PROCED0BES
DIVISION OF WATER PERMIT REVIEW PROCEDURES
NO.
DESCRIPTION
UNIT RESPONSIBLE
1.
la.
2.
The DOW receives a completed KPDES Permit Review Branch
application with forms i and 2 a, 2b, Inventory and Data
2c or 2d which is logged into the Management Section.
Permit Status System
-------
For incomplete applications, a letter
is sent to the applicant listing all
errors/omissions and notifying the
applicant that application review
is suspended pending receipt of
additional information,
A DOW representative contacts the
applicant for a survey of the
suitability of the proposed waste-
water treatment site. The
presence and proximity of down-
stream drinking water supplies,
adjacent dwellings and sensitive
aquatic habitats is taken into
account in the report prepared for
the permit writer.
The permit writer may visit
the site to become aware of any
site-specific production and/or
treatment that could influence
permit limitations/conditions. This
inspection can serve a dual function;
an agency verification of the KPDES
application and a first-hand review
and update of the application by
the prospective permittee.
This procedure can also be prefatory
to the later submittal of information
during Step lla (for the purpose of
correcting any misapplication of
national effluent guidelines, by the
agency).
Based on recommendations contained
within the site survey report, the
proposed site is either accepted
or rejected. If acceptable,
notification is sent to the
applicant If the site is not
suitable, proceed to Step 7. This
determination is then entered into
the P3S.
If the applicant's" choice of site
is not acceptable (refer to Step 5
description for criteria), he or
she will be notified by letter of
this determination and will be
requested to submit an alternate
site for agency consideration.
Permit Review Branch -
Inventory and Data
Management Section.
Field Operations Branch
Appropriate District
Office
Permit Review Branch -
Industrial and Synfuel
Section or Municipal
and Commercial Section.
Permit Review Branch -
Industrial Section or
Municipal and Commercial
Section.
Inventory and Data
Management Section
Permit Review Branch
Industrial or Municipal
Sections,
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10.
11.
12.
Based on a review of the appli-
cation the permit writer makes
a "new source" determination which
is sent to the applicant with a
copy placed in the permit file.
Using the appropriate standards/
guidelines (BPT, BAT, NSPS or BPJ
if necessary) and the data supplied on
the KPDES application, a set of
effluent limitations is proposed for
each discharge point (or internal
stream, if necessary). This
information is then placed into
the PSS.
For proposed facilities, these limits
are forwarded by letter to the applicant
and/or consultant for the purpose of
treatment system design.
A staff engineer performs an
in-depth, technical evaluation of
the proposed treatment system's
capability to consistently meet
the anticipated effluent limits.
This review makes use of technical
reference materials independent
of that supplied by the applicant.
The engineer is required to completely
document this review in a consistent
manner.
If the applicant's design proves
compatible with the required degree
of treatment, the proposed system Ls
approved and Step 13 followed. If
not, this determination is entered
into the PSS and Step 11 is
followed.
If this agency's review of the
proposed design reveals technical
errors and/or deficiencies, the
applicant is notified in writing
and application review is suspended
until additional information
received.
Eased on the agency's response in
Step 11, the applicant revises
the wastewater system design and
forwards an amended application to
the agency. This application then
undergoes £ technical review by a
staff engineer focusing on the
Permit Review Branch
Industrial or Municipal
Sections,
Inventory and Data
Management Section
Permit Review Branch
Industrial or Municipal
Sections,
Permit Review Branch
Industrial or Municipal
Sections.
Inventor,' and Data
Management Section
Permit Review Branch
Industrial or Municipal
Permit Review Branch
Industrial or Municipal
Sections.
-------
Steps 9a through 13a describe the procedures used by the permit writer to negotiate a
valid draft KPDES permit. Significant disagreement between the applicant and the
agency can be identified and resolved prior to public notice. In this way, the public will
be reviewing permit conditions that are probable final limits,
9a. After appropriate effluent Permit Review Branch -
limitations are developed Industrial or Municipal
for each of the applicant's Sections.
discharge points, this infor-
mation is placed into a proposed
permit and sent to the applicant
along with support calculations.
(A proposed permit is an informal
record of effluent limits/conditions
as initially calculated by the
agency for purposes of preliminary
review. This is contrasted to a
draft permit which is a formal
document of the agency's determination
prepared for public distribution and
review).
ID a. At this point the applicant ' . N/A (applicant)
reviews the proposed permit
for the purpose of verifying
correct application of
promulgated effluent guide-
lines/standards. This includes
checking the agency's information
on production methods, product
output rates, effluent
characteristics, etc.
If any substantive error is
discovered, the applicant
notifies the agency and submits
additional information as
described in Step Ha,
Lf the applicant's existing
treatment system is unable to
produce an effluent within
the proposed limits, he/she
requests a compliance schedule
to delay the effective date of
the new limits, (The effective
date of BAT limits cannot be
postponed past the national
effective date of BAT
regulations). Similarly, compliance
-------
schedules will not be allowed
for facilities subject to final
guidelines/standards promulgated
prior to permit issuance,
lla. II the applicant discovers a N/A (applicant)
substantial misapplication
of guidelines or standards
due to an erroneous assumption
of production conditions or
simply a miscalculation,
that mistake is brought to
the attention of the agency.
The applicant then supplies
the permit writer with new
or supplemental data that
support his/her contention,
12a. The permit writer reviews the Permit Review Branch-
information submitted in Step lla Industrial or Municipal
with respect to the previously Sections,
generated effluent limits. II
the new information leads to
a revised permit condition, a
corrected proposed permit is
discussed with the applicant,
If no clear error is discovered,
the permit writer notifys the
applicant of this finding and
informs him/her of possible
recourse under the agency
provisions for a adjudicatory
hearing to contest the final
permit.
(KPDES regulations provide for a
30 day delay between notification
of final agency determination and
the effective date of permit
conditions to allow time for
adjudication).
13a. The permit writer compiles a draft Permit Review Branch
permit using the effluent require- Industrial or Municipal
merits previously generated. This Sections,
draft permit is the agency's «
initial action taken on the
application and is sent to public
notice in Step 19.
The draft permit information is Inventory 6: Data
entered into PCS. Management Section
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• Steps 13 through 18 describe the procedures for construction of wastewater treatment
facilities. As stated in the introduction to this section, these facilities can be constructed
without the issuance of a KPDES permit. The construction permit also allows for plant
start-up and an initial discharge period of not more than tfaree (3) months after
satisfactory post-construction infection. After this period the applicant must
demonstrate an ability to consistently comply with aH draft KPDES permit limits, in order
to qualify for a final KPDES permit. If not, the applicant must upgrade the treatment
facilities a5 necessary. During this period the final KPDES permit will be withheld,
13.
14.
When ail engineering review issues
are resolved, the agency drafts and
issues a wastewater construction
permit (with expiration and resub-
mittal required if construction has
not begiin within one year).
Construction permit issuance infor-
mation is entered into the tracking
system.
Having received authorization from
the agency, the KPDES applicant
constructs the wastewater treat-
ment facility according to approved
plans and specifications and adhers
to any and all conditions stipulated
on the construction permit.
When construction is complete, the
applicant's designated design engineer/
staff person sends written notice of
construction completion and certifies
that construction proceeded according
to approved plans.
Within 30 days of agency receipt of this
certification, a staff engineer inspects
the facility to verify satisfactory
completion. Any deficiencies are
documented.
After the agency receives written
certification of construction
completion, the staff engineer
inspects the facility to verify
that it was built according to
approved plans. The engineer
prepares a report to document
his/her finding's.
Permit Review Branch
Industrial or Municipal
Sections,
Inventory & Data
Management Section
Permit Review Branch
Industrial or Municipal
Sections.
Permit Review Branch
Industrial sr Municipal
Sections.
35
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Permit Review Branch
Industrial or Municipal
Sections.
Inventory & Data
Management Section
Permit Review Branch
Industrial or Municipal
Sections.
16. Based on the results of the
inspection (Step 15} a deci-
sion is made as to the
acceptability of the facility.
If acceptable, the applicant is
eligible for a KPDES permit,
provided no substantive public
opposition has been registered.
If unacceptable, the staff engineer
drafts a letter informing the appli-
cant of all deficiencies noted in
his/her report.
Either of the above determinations
are entered in the Permit Status
System (PSS).
17. The appropriate staff engineer
provides written notification
of any and all construction
deficiencies observed during
his/her inspection.
The applicant is also notified
that agency review of their
KPDES permit is suspended until
construction/start-up problems
are resolved to the agency's
satis faction.
IB. The applicant performs any
remedial construction and/or
equipment revision as needed
to compiy wiih the agency's
deficiency letter (Step 17).
When completed, the applicant notifies
the appropriate staff engineer to
arrange a re-inspection of the
facility.
Steps 19 through 23 describe the procedures for subjecting a draft KPDES permit to
public review and comment. The results of these steps leads to a final agency
determination that reflects public concerns to the extent possible under existing
regulations.
Permit Review Branch
Industrial or Municipal
Sections,
19.
The effluent limits and conditions
generated in Step 8 are used to
prepare a craft KPDES permit.
Permit Review Branch
Inventory- & Dfita
Management Section.
36
-------
20.
21.
A statement of basis on fact
sheet (when necessary) is
prepared and placed within
the permit file.
This draft is sent to public
notice, under signature of the
Permit Review Branch manager,
and comments are solicited.
A comment period is specified as
well as procedures to be used to
enter comments into the agency
record.
The dates of opening and closing
of the comment period are entered
into the status system.
Copies of the public notice, draft
permit, new source determination
{if appropriate)-and the statement
of basis or fact sheet (if prepared)
are sent to Region IV EPA Facilities
Performance Branch.
The draft permit information is
entered into PCS.
The agency suspends processing of
the KPDES application for a period
of 30 days to allow sufficient time
for concerned parties to register
their comments.
Comments will be directed to the
Division of Water, central office
in Frankfort. The comments should
include the appropriate permit
identification number.
After the KPDES public comment
period closes, all comments
directed towards a single
draft permit are collated
and summarized.
If a public hearing on valid
issues relating to the draft
permit is requested, the
agency will set up such a
hearing and provide public
notice of the date, time
Permit Review Branch
Industrial or Municipal
Sections.
Permit Review Branch
Inventory it Data
Management Section.
Permit Review Branch
Inventory & Data
Management Section.
Permit Review Branch
Inventory & Data
Management Section,
Office of th* Assistant
Director,
-------
22,
24.
This hearing will be informal and
solely for the purpose of accepting
comments on the draft KPDES permit.
Based on comments received,
the permit writer decides if
the draft KPDES permit should
be revised^ issued as is, or
final permit denied. Only
those comments that reveal new
information pertinent to the
permit or that substantiate
deleterious impacts on human
health or aquatic life should
the permit be issued in its
draft form, will be considered
as justification for altering
the draft permit.
The recommended response to
comments will be.documented
and become part of the public
record.
A copy of the proposed final
permit is sent to Region TV
EPA Facilities Performance
Branch for review and concurrence
if necessary (according to Section
in, C,2 of the attached MOA).
Copies of significant comments as
required by 40 CFR 123.74(c)(2)
will be included.
Using recommendations from
the Permit Review Branch
the agency will modify the
draft and issue a final
permit, issue the draft
permit as final, or deny
the permit.
This determination is then entered
into the Permit Status System,
(In the case of newly constructed
facilities, satisfactory agency
review of completed construction
is requisite to final permit
issuance).
If sufficient cause exists
for agency denial of permit,
this determination is issued
to the applicant and becomes
Permit Review Branch
Industrial or Municipal
Sections,
Inventory & Data
Management Section
Office of the Director.
If conflict of interest
exists, other individual
as desigriated by the
Secretary of the Cabinet.
Inventory It Data
Management Section
Office of the Director.
If conflict of interest
exists, other individual
as designated by the
38
-------
24a,
part of the public record. An
entry is also made into the
PSS and PCS.
Should, the applicant consider
this action inconsistent with
promulgated regulations and
agency rules and therefore,
improper, he/she may adjudi-
cate the final permit and a
adjudicatory hearing may be
requested. The decision to
grant this hearing and the
administration of adjudicatory
hearing procedures are functions
of the Office of General
Counsel, {refer to KRS 224.081,
082, 083 and 085 for Kentucky
administrative and judicial
procedures and to the attached
General Counsel's Statement.)
The results of the adjudicator?
hearing are forwarded as
recommendations from the
hearing officer to the
Secretary of the Cabinet
for finaJ action,
Secretary of the Cabinet,
Inventory & Data
Management Section
Office of General Counsel,
Hearing Officer
If no substantive reason exists
for denial of permit, a final
KPDES permit is issued and
entered into the PSS and PCS.
This action then becomes part
of the public record.
Should a third party be aggrieved
by this determination (and have
previously identified their
eoneern during the public comment
period) an adjudicatory hearing may
be requested to challenge the agency's
interpretation of existing regulations.
As in Step 24, the handling of this
hearing request is the responsibility of
the Office of General Counsel, (refer to
KRS 224.081, OS2, QS3 and 085 for
Kentucky administrative and judicial
procedures and to the attached
General Counsel's Statement,)
The results of the hearing are
forwarded as recommendations
from the Hearing Officer to the
Secretary of the Cabinet for
Office of the Director.
If conflict of interest
exists, other individual
as designated by the
Secretary of the Cabinet,
Inventory & Data
Management Section
Office of General Counsel
Hearing Officer
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FORMS USED FOR STATE PROGRAM
The following pages consist of the various forms and respective instructions which
will be used to facilitate the implementation and enforcement of the Kentucky Pollutant
Discharge Elimination System (KPDES). Many of the forms were developed by federal
authorities and were modified by the Cabinet, specif to the Kentucky program. This
should allow for consistency with the federal program requirements while still meeting
the particular needs of the Commonwealth. Further modifications of the forms and their
uses may be necessary as the program Is administered and situations arise. However, any
modification will be to better implement the intent of the Federal Water Pollution
Control Act and the Commonwealth statutes and regulations to provide for the prevention
and abatement of water pollution.
-------
EVALUATION
Complance is gained through various means of technical assistance, sampling; and
monitoring by Division of Water personnel, and the review and correlation of self
monitoring data. Most compliance evaluation activities are accomplished by the
Division's Field Operations Branch consisting of nine offices and 45 people*. EPA's
computerized Permit Compliance System (F&>) and a Division of Water Permit Status
System (PSS) wiU be used to maintain compliance permit review information for quick
access. These systems wiH allow Permit Review Branch and Held Operations Branch
personnel to track those applicants or permit holders who have failed to fully comply with
permitting regulations. The structure and organization of these personnel within the
Division of Water are further described in the section "Structure of the Division of Water"
in this 0ESCEIPT1OM. Costs for these functions are found in Tables I.
Compliance Monitoring review by Division of Water personnel are documented
by the following inspections reports:
1. Compliance evaluation inspections (CEI).
2. Compliance sampling inspections (CSI).
3. Operation and maintenance (0 & M).
4. Discharge monitoring reports (DMR).
5. Compliance schedule reports.
Compliance monitoring activities encompass the first thr&e types of inspections,
which are performed by the Field Operations Branch. Through tfte compliance evaluation
Inspection (CEI), compliance sampling inspection (CSI) and the operation and maintenance
inspection (OicM), the state performs periodic investigations and surveys independent of
information supplied by the permittee tc determine compliance or non-compliance with
permit conditions. During these surveys Division personnel will verify accuracy of
information maintained by the permittee and/or rtported to the regulatory agency as well
as the adequacy of the records maintained and rsported. Existing EPA forms (3560-3 and
?5Q0~S) wffl be utilized in conducting these inspections. In addition, routine
aCompliance for facilities covered by the KPDES general permit for eoal point source
facilities will be accomplished with the assistance of the Kentucky Department for
Surface Mining Reclamation and Enforcement personnel. See "Special Procedures for
Coal Mining Permits" in the Program Description,
-------
inspections will be conducted as primary and follow-up infections depending on the
situation. These inspections will utilize forms BEP-4004, BEP-4D05 and DOWQ-18 and
narrative reports.
The Kentucky Division of Water intends to perform at least one of the above named
inspections a minimum of once a year per major discharger. Frequent site visits by State
personnel, if required, may be necessary to assure continuous compliance by dischargers.
In most these are unannounced inspections. These activities include inspections of
both municipal and non-municipal facilities,
All major non-municipals will receive either a CEI or CSI annually depending on the
history of the facility. If there is any doubt about the self monitoring data being
submitted or if the self monitoring data reflects minor violations, a full scale CSI will be
conducted. Otherwise, a CEI will be conducted.
All major municipals will receive an 0 & M inspection annually. Depending on the
history of the facility, a CSI will also be conducted.
Inspection procedures are summarized below and on Figure A, "Compliance
Monitoring Process".
1. Any samples collected must be "sent to the lAb in accordance with acceptable
procedures and quality assurance compliance practices. In all cases the
permittee is offered to split the sample for comparison of results.
2, If compliance monitoring reveals no violations then the report is simply
logged, distributed, and filed,
3. If compliance monitoring reveals a violation, the problem is thoroughly
discussed with the permittee and technical assistance is offered. If the
technical assistance is accepted and timely progress is made toward resolving
the problem, normally no enforcement action is taken,
4. If technical assistance is not accepted and/or timely progress is not made
toward resolution of the problem, the permittee is called to the district office
for an informal conference. At this conference a compliance schedule is
developed and the permittee's progress is tracked tiirough resolution of the
problem.
5. If the permittee either does not agree to a compliance schedule or does not
successfully meet the compliance schedule, the ease is forwarded to the
Enforcement Branch.
6. All complaints received by the Kentucky Division of Water are recorded on
form DEP-4013. If appropriate, the complaint is investigated to determine if
a violation exists. In those cases where e violation does exist a solution to the
-------
FIGURE A
COMPLIANCE MONITORING PROCL3S
Report
Pjrnritlts
affert te
to
Effforcrrent Brtncfi
for ictlon
resolved »rxj
Cits closed
Agreeratnt
Office te el
vtolttion
-------
problem is pursued until corrected. In many instances, this will involve the
enforcement procedure as described.
Compliance Review occurs by reviewing Discharge Monitoring Reports (DMR) and
compliance schedule reports submitted by permittees. Self-monitor ing and reporting
involves the permittee sampling in accordance with the permit conditions and reporting
the results on DMR forms. Presently the DMR's are sent to the Division of Water District
Offices, reviewed, and appropriate action taken according to the type and degree of the
violation. Under KPDH.S, copies of the DMR's will also be sent to the Central Office in
Frankfort for entry into the Permit Compliance System (PCS). Automated tracking of
violations and non-submittals will then be possible, and will be handled by the Inventory
and Data Management Section of the Permit Review Branch.
All KPDES permits will require the submittal of Discharge Monitoring Reports
(DMR) utilizing EPA Form 3320-1, Initially, permittees will continue to submit reports
Quarterly or whatever frequency is required by the permit. However, consideration is
being given to require some, if not all, of the permittees to submit reports within 30 days
of data collection. This would allow for a quicker response to problems or potential
problems by the Division of Water and provide a more balanced work load. If this
reporting change is made, it will be done at the time of permit renewal.
All KPDES requirements are checked against the reported values. Deviations from
allowable limits are followed by investigations to determine the reason for the deviations
and seek a resolution to the problem. The DMR review procedure is discussed below and
summarized in Figure B, "DMR Review Process11.
1. At the central office the DMR's will be stamped, dated, and entered into the
computer oy Lhe Inventory and Data Management Section. Monthly, the
computer will list those facilities which have not submitted a DMR and also a
list of all data received on the DMR matched against the permit limits. The
computer will generate letters to those facilities which have failed to submit
their DMR. These letters will require the submittal of the DMR or a letter
explaining the reason why the DMR could not be sent, If there is no response,
or an unsatisfactory response, a list of non-submitters will be furnished to the
appropriate district offices who will resolve the problem through an
enforcement procedure described below. The monthly report generated by the
•
computer will be reviewed by the Field Operations Branch Manager, the
Enforcement Branch Manager, and the Director's office. Based on the degree
of violation, priorities will be developed and referred to the District offices.
The District offices will investigate, determine the problem, and resolve it
-------
OUR REVIEW
sutsn U
\/
U1led Sy DOW jtlff
District Office
He
He
IpermttTM
do«* not
attend
•s.
Cjsc I Hist 1 1-
tsd to Enf-
orcement
fir ji nc.h
les
No
ichefluIt
not me l
M to
urcsm
&ranch
\/
Cooy to Centrjl
Offlct
_\/
Irfonmtlon tnter-
Kl Into
\/
Monthly printout
Oau
_\/
Usw«s
ta Mri-
tutal ttem
neeU eoncntionj
of letter
-------
through either technical assistance or enforcement. The enforcement
procedure is to call the permittee into the District office for an informal
conference, during which the situation is thoroughly discussed and a
compliance schedule is developed. Most problems are resolved at this level
but if the permittee either does not show for the conference or does not meet
M«*
the compliance schedule, the case is referred to the Enforcement Branch.
2. At the District Office, the DMR's are reviewed upon receipt for conditions
requiring immediate attention. If there is any violation at a major facility or
a significant violation at a minor facility, the situation is investigated
immediately. This investigation will usually begin with a phone call to the
permittee and, depending on the situation, and on-site inspection. If this type
of violation does not exist, the DMR is filed for later reference. Violations of
a lesser degree are prioritized as mentioned above.
The sequence of steps taken to bring a discharge into compliance begins with the
facility in violation being contacted and/or investigated to determine and document the
exact nature of the problem. Technical assistance will be offered in an effort to resolve
the problem. If the technical assistance does not help, representatives of the facility will
be called into the -District Office for an informal conference in an attempt to resolve the
matter, usually through the use of a compliance schedule. II a compliance schedule
cannot be agreed upon or is not adhered to, the ease is transferred to the Enforcement
Branch of the Division for further action.
All information from all steps in the compliance process will be placed in the
Divisions central files.
EMERGENCY RESPONSE
In order to more promptly, and properly, respond to spiUs and other emergency
incidents the Natural Resoruces and Environmental Protection Cabinet established an
Environmental Response Team (ERT) which has become the basic response mechanism
reacting to emergency incidents. The organization of the ERT within the Cabinet is
further described in the section "Department for Environmental Protection" on page 9.
The ERT provides for a pattern of coordinated and consistent responses to spills and other
hazardous material incidents. It is designed to provide central coordination and direction
of department personnel. The ERT will: •
1, respond to a pollution incident to provide a coordinated effort by NREPC;
2. assess the incident as to the nature, amount, location, direction, affected
facilities, etc.;
-------
FIGURE C
ENCT BESPONSE
LNVlROWietfiAL RESPONSE TLAM (ERT)
Hsde uc of eight (S) specially tn^ntd »f*l
equipped.tmpl^/ies infl t coord1n»tor. Thlj
is »sjign«d to th« Stcr»t»ry'S Offle*.
r
rtjponit
\/
Or».»eine ptrsonntl
•ftC rtport* to DtT
or.twr «ffect*d
-------
3. cooperate and coordinate with federal, state and local officials "on scene" to
develop a plan of action to resolve the incident;
4. initiate temporary defensive action if the responsible party is unable to effect
«
prompt mitigating actions;
5. evaluate containment and/or cleanup activities by working closely with the
responsible party or other contractors to insure proper efforts are taken; and
6. insure continuity by acting as a "project manager" for the emergency incident
until satisfactorily terminated.
In addition to the above responsibilities, the Office of the Secretary has directed
that the ERT shall be responsible for coordinating departmental personnel and resources
when a natural disaster such as flooding, tornados or other similar incidents occur.
Although specially trained and equipped, the ERT member is an employee of the
Department for Environmental Protection and will work and respond under his normal
'divisional chain of command while performing his routine field activities. This will
change when he is notified, by whatever means, of an emergency incident. At the point
of notification, his control shifts to the Environmental Response Coordinator who will
direct his activities relating to the emergency incident. Upon the termination of the
incident or if earlier notfied by the Coordinator, this control will return to normal
channels. This deviates only when the ERT member is needed for training, meetings or
other ERT related functions. These will be agreed upon mutually between the
Coordinator and the division director.
When responding to an emergency incident, the ERT member will have the
authority, as rion scene coordinator", to direct those departmental resources necessary for
mitigation of the incident. Those personnel who respond will report to and work under the
ERT representative controlling the incident. This includes the division support teams and
other personnel needed at the scene.
In cases where an incident requires immediate action, the Secretary may issue an
Emergency Order for Abatement under KRS 224.071 to prevent any continued discharge
which is likely to damage a natural resource or be a danger to the health of the citizens,
This may be used where the discharger is uncooperative or time is of the essence in
eliminating e discharge. The Secretary is required to notify the Governor immediately of
the issuance of any order. .
ENFORCEMENT
The enforcement process is summarised on Figure D and each step is discussed
below. As indicated in the discussion of compliance monitoring, enforcement of permit
limits and conditions begins with the District Office first determining that a violation
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FIGURE 0
CENTRAL OFFICE iNFORCEMEtfT PROCESS
tis.£ rerrr*a ?
District Of/let
1.
send
letur
20 djyi no tics is
«99etr in
for informi]
Stnt to Off-Set of
Cousil i
offtei
4.D.
\/
8tfff to
Gtntri!
1 *9« i ic
Offlci
Count*!
tion
srf
for
Flit action 1
Court
it Circvlt
1
Caneuci Court
issues
ri»te
-------
exists. Unsatisfactory compliance with the District Office efforts results in the case
being forwarded to the Enforcement Branch. Upon receipt of a request for action, an
administrative conference is scheduled at the Central Office, Formal notification of the
conference is given by certified mail, (See Central Office Enforcement Chart Figure D)
At the administrative conference, (Step 2), a commitment to resolve the complaint
may be obtained (Step 3 a.) and a schedule for corrective action negotiated. An Agreed
Order is developed incorporating the schedule and an appropriate monetary penalty. On
rare occasions, a penalty is not necessary. The Director, Commissioner, Secretary and
General Counsel sign the Agreed Order as well as the permittee. The compliance
schedule is tracked by the Enforcement Branch, until completion, through the
Enforcement Status List (Step 3 c.).
If compliance is unsuccessful, the case is further developed and forwarded to the
Office of General Counsel (OGC) (Step 4 a. and b.). The Division in general, and the
Enforcement Branch, in particular, support the OGC with additional data and
documentation as necessary and track OGC action on referrals and press attention for
necessary litigation (See Step 5).
In complaints requiring quick action, the OGC can move directly to Franklin County
Circuit Court for a Restraining Order and Injunction (Step 7 a.), or it can file a complaint
and schedule a formal hearing (See Step 6 a.). If route 6 a, is foDowed, the hearing officer
(Administrative Law Judge) renders a report to the Secretary of the Cabinet. Appeal
procedures are listed in Step 7 a., 7 b., and 7 c.
The state shall promptly notify EPA concerning noncompliance by federal facilities.
Due to the need for coordination with the Office of Management and Budget, EPA must
aid in resolving problems at federal facilities since ;hey have direct input to the budgeting
process and can restrict the activities at the facility. Therefore, EPA may influence the
adjustment of priorities causing funds to be directed to the resolution of environmental
matters such as expansion and upgrading.
Enforcement of pretreatment requirements will follow the same procedure as
outlined in the Compliance Chart and the Enforcement Chart. State enforcement actions
against industrial dischargers into public wastewater treatment would be based on
violations of the Kentucky Operating Permit issued under regulation 401 KAR 5:005 rather
than violations of NPDES permits. Industrial dischargers into public wastewater
treatment facilities do not require an NPDES permit.
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PRETREATMENT
Publicly owned treatment works (POTW's) shall be required to develop pretreatment
programs in accordance with 401 KAR 5:055, Section 9(7)(a). Currently, some sixty-five
(65) POTW's have been identified by EPA as required to develop pretreatment programs.
The state recognizes that this list will be a dynamic list needing revision as information is
gathered pertaining to the different municipal facilities. Only seven (7) facilities fall
into the category of greater than five (5) MGD design flow. Out of the total sixty-five
(65) POTW's, only two (2) have received pretreatment program approval.
Responsibility for review and approval of pretreatment programs and related
functions has been recently transferred from the Construction Grants Branch to the
Municipal and Commercial Section of the Permit Review Branch, The Municipal and
Commercial Section is developing forms and procedures to be used in gathering
information from POTWs to identify industrial users and to identify POTWs that must
have a pretreatment program. Such information gathered will include names of industrial
users, flow rates and other necessary data,
POTWs required to develop pretreatment programs wOl be identified by the State
through one or more means. The application, in particular Part IV., should indicate those
industries connected to the system. In addition, the Commerce. Cabinet publishes yearly a
Kentucky Directory of Manufacturers which will be helpful as a reference and cross check
for verification. Finally, physical inspection of the locality in question as well as review
of past 0 & M and compliance inspections will indicate if any problems from industrial
discharges exists.
Upon delegation of KPDES and the pretreatment program, the State will officially
begin to receive and act upon pretreatment program submittals for approval. Prior to this
official delegation, it is the State's intention to perform various review and approval
duties in conjunction with EPA, Kegion IV, so as to become familiar with the necessary
procedures. This will have to be coordinated with and subject to EPA agreement,
In assisting the development and approval of pretreatment programs, the Cabinet
intends to operate under the following priority for implementing programs:
° POTWs with 5 mg-d flow or greater
0 Potws less than 5 rngd flow which have evidence of problems resulting from
industrial user discharges into the POTW system from both categorical and
non-categorical industries.
0 POTWs with 1 rngd flow or greater requiring a program due to the presence of
categorical industrial users.
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0 POTWs with less than 1 mgd flow requiring a program due to the presence of
categorical industrial users.
For POTWs which have not developed a pretreatment program as required, a
compliance schedule with the shortest possible deadline will be implemented. The
compliance schedule shall contain progress reporting dates none of which shall exceed
nine months until an approved program is developed and submitted for approval
Compliance schedules shaU be incorporated into applicable POTW permits in
accordance with 401 KAR 5:055, Section 9(7)(d). These compliance schedules will be
developed in conjunction with the POTW personnel and designated consultant where
applicable, along with coordination between the appropriate state construction grant
engineer and state enforcement personnel. Effective communication with inter-agency
units is a necessity to ensure consistency for the various agency responses.
Where no local POTW program is required, an indirect discharge permit shall be
issued according to 401 KAR 5:005, Section 2 and KRS 224.005 (20) for those industrial
facilities affecting the POTW system. These facilities wifl be subject to the same
enforcement procedures and penalties as the direct dischargers.
The Cabinet will assist POTWs in developing pretreatment ordinances heeded.
Model ordinances will be developed and distributed upon request. The Cabinet will also
provide assistance in translating water quality standards in ordinances and will play an
overview role with respect to industrial waste sewage. In summary, the State will provide
assistance as needed, but will strongly encourage the POTW to work directly with
industrial users to gather information and assure compliance.
Upon submission of a request for approval of a POTW pretreatment program, the
director will make a completeness determination with respect to items required by 401
KAR 5:055. Upon a favorable preliminary determination, the director commences public
notice and evaluation activities within 5 days. The public notice procedure provides a
public comment period of 30 days minimum. The applicant, any affected state, any
interested state or federal agency, person or group of persons may request a public
hearing. A public hearing will be held if the POTW so requests, or if there is a significant
public interest in issues relating to whether or not the submission should be approved.
Based on an evaluation of the submission and comments received, the director makes a
determination to approve or deny the request. A denial notification contains suggested
t
modifications and may allow the requestor additional time to correct the submission. No
POTW pretreatment program will be approved if the regional administrator sets forth in
writing objections to the approval and reasons for objections. Approval or disapproval of
submissions will be published in the same newspapers as the original notice of request was
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Requests for variances for fundamentally different factors shall include a list of
pollutant or pollutant parameters for which an alternate discharge limit is sought, details
of the industrial user's facilities, and other facts necessary to evaluate the request,
Incomplete submissions will be returned, and if not corrected within 30 days the request
will be denied. Public notices will be issued for complete requests, and a minimum of 30
days allowed for comment. If fundamentally different factors do not exist, the director
may deny the request. If fundamentally different factors do exist, the director will
recommend to the enforcement division director of EPA Region IV that the request be
approved.
A PGTW may request a revision of one or more categorical pre treatment standrd to
reflect removal of the pollutants) at the POTW. The POTW most demonstrate consistent
removal and must have an approved pretreatment program. Removal for a specific
pollutant is determined by measuring "the difference between influent and effluent
concentrations it the POTW and expressing the difference as a percent of the influent
concentration. The POTW submits a listing of industrial pollutants for which discharge*
limits in categorical pretreatment standrds will be revised, The POTW also submits
proposed revised discharge limits using the formula and procedures described in 401 KAE
5:055. The POTW shall submit data indicating amounts "of considered pollutants in the
sludge along with the methods of use and disposal of sludge so a determination may be
made as to compliance with applicable standards. Revised discharge limits, if approved,
are included in the POTW's KPDEs permit upon the earliest reteuanee or modification,
and become enforceable requirements of the permit,
For those POTW's qualifying for a pollutant removal allowance in accordance with
401 KAB 5:055, Section 9(6), the state intends to determine compliance or non-
compliance with permit conditions with respect to 'these pollutants through the normal
O&M, and CSI procedure for facilities. In addition to the conventional pollutant
for POTW permits, shall be performed for those parameters receiving
removal allowances. At the discretion of the director on an as needed or emergency
basis, inspection and sampling may be performed more frequently than the normal
scheduled inspections to determine compliance status.
Since removal allowances, in particular, have an effect on the sludge content of the
POTW, tne state shall analyze sludge samples for those facilities required to meet certain
criteria for certain parameters depending on the method of sludge dispos&L4 Many of the
POTW's dispose of sludge by l&ndspreading which requires permitting from the state
Division of Waste Management, The Division of Water through our permitting process will
be able to coordinate 'with Waste Management to ensure those facilities disposing of
-------
sludge by a method requiring critics] minimum levels of toxic pollutants, shall be sampled
and analyzed during scheduled inspections as well as more frequently on a case-by-case
basis.
Categorical determinations of industrial users will result from the review of
information submitted to the state either by the industrial user directly or through the
POTW which seres the industrial user. Should the information required from normal
procedures be insufficient to make an accurate determination, additional information will
be solicited including reasons why a particular classification is or is not suitable. This
verification may come from one or both the industrial user and the POTW. Requests for
certification of the category determination shall be required according to KAR 5:055,
Section 9 (5)*(b) and 40 CFR 403.6(a).
The industrial user shall submit reports to the POTW, or State where the POTW does
not have an approved program, of analyses of regulated processes. These analyses shall be
representative of the daily operation of the industrial process and performed according to
approved methods. These reports shall be available for review by the State either on site
or by submission from those POTWs with approved programs. Reports to be included, but
not Limited, are baseline reports, initial compliance report after categorical deadline or
new source connection, and periodic reports on continued compliance, the frequency of
which will be determined by the control authority. These reports will be reviewed by
Central Office personnel and compared with requirements in 401 KAR 5:055 Section 9
(10). Any violations of these requirements will be noted and entered in the computerized
tracking system for follow up procedures. Notification by letter followed by additional
inspection and/or conferences may result,
Inspections shall be conducted by the State of those POTWs with approved programs
to determine the compliance with the pretreatment program requirements. These
inspections will be a part of the regularly scheduled Compliance Evaluation Inspection
(CEI) and Compliance Sampling Inspection (CSI). Records will be reivewed and necessary
samples taken to determine compliance. Follow-up inspection will be conducted as
necessary. As well as the regularly scheduled inspections, occasional spot checks may be
necessary throughout the year, especially for determined problem facilities. Should a
POTW be approved for removal allowance of a poLlutarit(s), this would dictate more
frequent sampling and reporting by the POTW as well as more frequent.inspection and
sampling by the State. To insure the effective use of manpower a priority system shall be
developed to indicate those POTWs which require more frequent or more comprehensive
inspection and monitoring for pretreatment compliance. This will involve a close working
relationship between the Permit Review Branch and the Operations Branch.
-------
Inspections of industrial-users shall by necessity be kept to a minimum and dictated
by problem facilities and/or those facilities which have been issued indirect discharge
permits. As spot checks, Inspections of suspected or historically problem users can be
incorporated as part of a CSI or*CEI, As the program gets underway and priorities
adjusted, a schedule or listing of targeted users will be developed.
At this time there are no plans to hire additional personnel specifically for
pretreatment duties only. The primary responsibility for implementing the State
pretreatment program lies within the Permit Review B&nch of the Division of Water, The
Municipal Commercial Section has the primary responsibility within that branch.
Technical expertise relative to specific industrial users may be received from the
Industrial and Synfuel Section of the same branch which includes issuance of indirect
discharge permits. Also, as part of the tracking of data and reports, either fathered by or
submitted to the State, the Inventory and Data Management Section of the branch will be
responsible, for the maintenance and dissemination of information pertaining to the
pretreatment program through manual as well as computerized means. The performance
of pretreatment functions will be part of the duties of personnel designated under the
KPDES program and funded through 106 funds. These personnel and monetary allocations
are included in Table 1. of this program description.
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SPECIAL PROCEDURES FOE KPDES
PERMITS FOR COAL MINIS
Within the Natural Resources and Environmental Protection Cabinet, the KPDES
program for surface coal mining and reclamation operations will be effected through the
Department of-Surface Mining Reclamation and Enforcement (DSMRE) in coordination
with the Department for Environmental Protection. The Department of Surface Mining
Reclamation and Enforcement in the Cabinet is responsible for the admin lustration of the
permanent regulatory program for surface coal mining and reclamation operations
(SCMROs) as authorized by the U.S, Department of Interior under the Surface Mining
Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. 120L, The organization and
structure of the Department for Surface Mining Reclamation and Enforcement is shown
on page 169. This permanent regulatory program is effected through a permit, inspection
and enforcement program under Kentucky Revised Statute 350. DSMRE has promulgated
regulations implementing this program at Title 405, Chapters 7 through 24 of the
Kentucky Administrative Regulations, The U.S. EPA is developing a general
coal mining permit for surface coal mining and reclamation operations to minimize
duplication with DSMRE permit issuance procedures. EPA win soon initiate formal
rulemaking to implement this permit. In the event that EPA does not finalize the general
permit for SCMROs, the Cabinet will formalize all actions on the general permit into a
final effective KPDES permit under 401 KAR 5:055, Section 5, The KPDES general
permit will cover all permitted surface coal mining operations, as defined in 405 KAR
7:020, Section 1 (117), which are subject to both the surface mining regulations and the
KPDES regulations. Those coal mining activities not included under the state's surface
mining regulations will require individual KPDES permits, if a point source discharge
exists. The complete procedures for DSMRE and DEP coordination of KPDES permits is
found on pages 164 and 168.
The general KPDES coal mining permit will be issued for five years. Upon
expiration of the KPDES general coal permit, a new general permit will be issued by the
Division of Water in the DEP, or individual permits may be issued depending on reviews,
inspections and reports of the SCMROs under the general permit.
The KPDES general coal mining permit will take effect as to a particular SCMRO
upon the issuance to the SCMRO of a finally effective surface coal mining permit
covering the point source discharge. On the date of EPA program approval of Kentucky's
161
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KPDES program, all currently effective. NPDES permits for SCMHOs wiil'be come KPDES
permits and wili remain in effect until such time as the operation is covered under the
general permit or the Cabinet decides that an individual KPDES permit is more
appropriate. More specifically, any individual NPDES permit which has been issued
previously to a SCMRO covered by the KPDES general ccej mining permit will
automatically terminate when the general permit takes effect. However DEP may
continue an individual permit even after the KPDES general permit if the Division of
Water determines that the individual permit is more appropriate. The following terms
will constitute to the criteria for determining whether or not a SMCRO is covered by
general permit:
Subsequent to the issuance of a KPDES general coal mining permit, DEP's Division
of Water may continue an existing individual KPDES permit in effect or require a new
individual KPDES permit for a SCMRO, after affording to the DSMRE notice and the
opportunity to submit comments to DEP, under any of the following circumstances:
(a) If DEP's Division of Water reviews the surface raining permit application
or/and preapplication determines that the SCMRO's surface mining permit must include or
be revised to include water quality related permit conditions to tarry out the provisions of
KES 224 and the KPDES and state water quality regulations, then DEP shall initiate
proceedings to issue an individual KPDES permit containing conditions in addition to or
more stringent than those contained in the surface mining permit. DEP will notify the
SCMRO and the DSMRE of its decision to issue an individual NPDES permit no later than
10 days after receiving the issuance of the surface mining application from DSMRE. DEP
may require the SCMRO to submit further information, and may require a complete
application under 401 KAR 5:060, As noted in the table "KPDES Permit Review
Compliance and Enforcement Procedures for Coal Point-Source Facilities. In all other
cases, the KPDES general coal mining permit will e;cpire as to the SCMRO upon issuance
or denial of the individual KPDES permit.
(b) Where DEP's Division of Water terminates the KPDES general coal mining
permit as to a particular SCMRO it may issue an individual KPDES permit to the SCMRO.
The Department may combine procedures for the termination of the general permit and
issuance of the individual permit.
Each SCMRO covered by the KPDES general coal mining permit must comply with
the requirements contained in the applicant's approved mine reclamation plan concerning
protection of the hydrologic balance of the surface mining permit. Noncompliance with
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the' KPDES requirements of the plan shall constitute a violation of the general permit
and may be separately enforceable by DEP and citizens. Noncompliance with such
requirements shall constitute a violation of the surface mining and the KPDES permit and
shall be enforceable under KRS 350 and KRS 224.
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TABLE
K?D£S PERMIT REVIEW, COMPLIANCE & ENFORCEMENT
PROCEDURES FOE COAL POINT-SOURCE FACILITIES
{NEW AJKD EXBTTNG SOURCES)
STEP DESCRIPTION
Division of Water receives notice of intent to be
covered under the KPDES general coal mining
permit, if the appropriate box is checked on the
Department for Surface Mining Reclamation &
Enforcement permit preapplication form. The
Division of Water will use the permit number
assigned by DSMRE.
The proposed mining activity and location
information is compared to standards as described
under the KPDES general permit. (Certain
criteria including a large surface disturbance
and/or local environmentally sensitive areas and
other criteria in the KPDES general permit
regulations will require an individual KPDES
permit application and review. All others will b*
considered to be within the range of conditions
for KPDES general coal mining permit
7.}
If information submitted qualifies the applicant
for a general KPDES permit, go to Step # 4. If
not, go to Step 4 a. This decision is made by
Permits Branch Manager.
A notice is sent to the applicant and to DSMHE,
indicating that the operation qualifies for a
general permit. The applicant is directed to
examine an available copy of the general permit
to become familiar with its terms and conditions.
The general permit becomes effective for each
source upon the issuance of a fully effective
DSMHE permit for surface disturbance mining.
Warning will be included that any significant,
(consistent with the EPA concept of this term)
repeated water violations noted by the DSMRE
inspectors wiU cause the Division of Water to
require an individual KPDES permit.
Division of Water files the application by the
surface mining permit number and by county.
UNIT
RESPONSIBLE
DSMRE'
Permits
Division of
Division of Water -
Permits Branch
Industrial Waste water
Section
Division of Water -
Permits Branch
Division of Water -
Permits Branch
inventory 4: Data
Management Section
Division of Water -
Permits Baaneh
Inventory & Data
Management Section
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[Steps 4a & 5a apply to applicants unable to qualify for general permit]
Division of Water -
Permits Branch
Inventory &. Data
Management Section'
Division of Water
Permits Branch
4 a. Division _of Water sends KPDES application forms
1 and C (manufacturing, mining and commercial)
and notifies the applicant that an individual
permit is required. A list of reasons is cited along
with the notice.
5 a. When the application is returned to Division of
Water, normal KPDES permit issuance procedures
will apply, If the general permit is inappropriate,
site specific conditions, using Ky Water Quality
Standards 401 KAR 5:030 or other appropriate
considerations, will be incorporated into the
individual KPDES permit. Compliance and
enforcement win be handled by DSMRE inspectors
(Step 6), with involvement by DEP inspectors,, as
necessary.
6. Department for Surface Mining Reclamation and
Enforcement inspectors routinely inspect the
facility for water quality violations. Inspection
reports are filed within the Department for
Surface Mining Reclamation and Enforcement
Regional Offices and central office in Frankfort.
Department for Surface Mining Reclamation
inspectors also reviews discharge monitoring data
submitted by the permit holder to determine
compliance with limitations and conditions of the
general permit and the DSMRE permit.
Conditions in the permit such as compliance
schedules will also be reviewed. Because each
facility covered by the KPDES general coal
permit will also have a DSMRE permit with
identical effluent limits, DSMRE will ascertain
compliance with permit conditions (late
submittais, non-submittals etc.) by their existing
compliance tracking system. Compliance
evaluations will be consistent with procedures
used for all other classes and categories of
discharges.
[NOTE: Computer printouts of violation lists from Department for Surface Mining will be
available for review by Division of Water and EPA}
(Under the DSMRE
permit) DSMRE -
Divison of Field
Services
DSMRE - Division of
FieM Services
?. If no KPDES violation is noted, no action is
necessary,
If a violation is observed, the inspector for
Department for Surface Mining Reclamation and
Enforcement issues a notice of noncompliance
.according to Department for Surface Mining
Reclamation and Enforcement procedures. The
N/A
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12a- Division of Water contacts DSMHE. Also DOW
begin its administrative procedures (refer to
COMPLIANCE AND ENFORCMENT) i.e., district
office inspection, Division Office conference,
Centra] Office conference etc. (Coordinate with
DSMRE compliance personnel.)
ISa. If non-compliance is resolved, no further action is
necessary. Division of Water will notify DSMRE
of resolution of problem.
If not, referral to OGC (Step 13).
14. Legal remedies are pursued under KRS Chapter
350 and Chapter 224 (for detailed procedures for
litigation, refer to COMPLIANCE &
ENFORCEMENT).
DOW - Field Operations
Branch and Enforce-
ment Branch (if
necessary)
DOW- Enforcement
Branch ~ Case Prep,
Section
Office of General
Counsel (possibly
assisting State
prosecuting attorney)
[NOTE: At any point is this process after a violation has occured, EPA Region IV
Enforcement personnel have the authority and jurisdiction to take independent action to
correct the non-compliance. Refer to attached Kentucky/EPA MOA for coordination
procedures.]
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\/
5 a
HUE
I-IS
CEDUKE
(after consultation
with DOW)
(If Mot referred
Co lo Step Ma),
KPDES
IOLATION
7
PROBLEM
RESOLVSt)
7
*_ *^> ._ ^_ _^v
NOTICE OF
TO CABINET
LITIGATED
OFFICE OF
DOU SENDS
VIOLATION
CORRECTED?
NOTICE OF
RODLEU
RESOLVED?
REFE-
UHAL TO DSI
CENTRAL OFF
CF. ?
SENDS
IS 1 I,
SOLI*
i APV-
M'lOH
DOW IS
AWAHE OF
VIOLATION
(AFTER INDIVIDUAL 1
PERMIT IS ISSUED, J
>CO TO STKI' 6 ) — p
I
t
fry
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CIVUEGK of
FICLO
OEPAHlUfMT FOR
tHFOIICKUENT
DIVItlOM
Of PEMMI1S
MAY It,
figure 10
-------
DIVISIOM
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Figure II
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HELD SERVICES
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SECTION I
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SECTION II
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010223/86 DRAFT 1 12/26/1985
The State of Washington
Pretreatment Program
SAMPLE PRETREATMEMT PROGRAM DESCRIPTION
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010223/86 DRAFT 2 12/26/1985
Table of Contents
Section Page
Btckground
Legal Authority
Introduction
Local Programs
Local Program Oversight.
State Run Program
Noa-Delegated POTW Participation
Procedures for all Programs
Plan and Specification Review
Prohibited Discharge Standards
Noncategoncal Industries
Removal Credits
Variances for Fundamentally Different Factors. . .
Enforcement ...
Net/Gross Determinations
Upsets
Categorical Determinations . . , .
Staffing and Funding . .
Assumptions ...
Dedicated Staff ...
Noodedicated Staff ...
Technical ...
Nontechnical ...
Funding
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010223/86 DRAFT
12/26/1985
List of Attachments
Attorney Generals Statement
Laws and Regulations
List of Appendices Number
Results of Industrial Surveys 1
Policy and Strategy for Municipal Wastewater Management . 2
Local Program Development Checklist 3
Local Program Review Checklist 4
Example of NPDES Language for Delegated POTWs 5
Audit Checklist , 6
State Permit Application 7
Permit Fee Requirements . 8
Spill Control Requirements. . 9
Example of NPDES Language for Nondelegated POTWs 10
Enforcement Procedures 11
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010223/86 DRAFT 4 12/26/1985
THE STATE OF WASHINGTON
PRETREATMENT PROGRAM
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Background
In June 1978, the Environmental Protectioo Agency (EPA) promulgated the
general pretreatment regulation (40 CFR 403) in response to the Clean
Water Act of 19??. This regulation places the responsibility for
administering a pretreatment program with EPA until a state program is
approved. The regulation also called for the submittal of a state pro-
gram by National Pollutant Discharge Elimination System (NPDES) states by
March 27, 1979. An extension to March 27, 1980 was granted to Washington
because it lacked legal authority to carry out all of the requirements of
the federal pretreatment regulations. This legal authority was obtained
during the 1979 state legislative session.
After conducting a series of public hearings around the state, the
Washington State Department of Ecology (Ecology) contracted with the URS
Company to conduct a statewide industrial waste survey and related work
in cities subject to 40 CFR 403.8(a) to satisfy elements 1, 2, and 4 o.f
40 CFR 35.907(d). Using information obtained frotr the industrial survey
and subsequent public workshops, Ecology submitted draft state pre-
treatment program proposals in July 1980, flay 1982, and October 1984,
Subsequent to the URS report, another industrial survey report was
commissioned by EPA in 1985. This report, performed by Science Appli-
cation International Corporation (SAIC) forms the basis of the staffing
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010223/S6 DRAFT 5 12/26/1985
analysis of this submittal. Summary tables of the results of b6th
studies are contained in Appendix 1.
The State of Washington Department of Ecology has operated a state waste
discharge permitting program since 1955. This permit program, has been
and will continue to be the major mechanism for controlling industrial
discharges into local sewer systems. The state regulation has been
rewritten to incorporate and apply federal regulations arid procedures. A
copy of the regulation for the State Waste Discharge Permit Program (WAC
173*216) is provided in the attachments to the Attorney General's
statement.
LEGAL AUTHORITY
It is the opinion of the Office of Attorney General that with the
existing state statutes and regulations, the stair has sufficient legal
authority to implement the federal pretreatment program. Attachment 1,
immediately preceding the appendices contains the Attorney General's
statement along with copies of applicable statutes and regulations.
PROCEDURES
Introduction
The purpose of the state pretreatment program is to apply and enforce
pretreatment standards and requirements on industrial and commercial
dischargers into publicly owned sewerage systems. This may be performed
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010223/86 6 12/26/1985
directly by Ecology or by delegated local authorities with Ecology
oversight.
State efforts ia the area of direct pretreatment administration will
include notifying industries, reviewing industrial user reports (baseline
aonitoring reports, compliance schedule progress reports, final compli-
ance reports, self-monitoring reports, and engineering reports), permit
issuance, compliance tracking and monitoring, and enforcement as appro-
priate. Local program delegation, oversight, technical assistance and,
if necessary, direct state action are also part of the state program.
It is recognized that the intent of 40 CFR 403 is to pass on the pre-
treatraent program requirements to the municipalities. Presently, six
municipalities have been delegated pretreatment authority, with three
additional programs being developed (see page ). The long-range
objective of Ecology is to place municipalities :n charge of regulating
what goes into their sewer systems (Appendix 2). la terns of implementa-
tion, Ecology will operate a dual program; namely oversight for approved
programs and direct permitting authority per WAC 173*216 for all other
industrial dischargers.
This submittal has three major parts. The Attorney General's statement
and copies of referenced statutes and regulations pertaining to pretreat-
ment is provided first,
This section provides an outline of how the administrative aspects of the
pretreatment program will bs handled and contains five subsections.
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010223/86 DRAFT 7 12/26/1985
First, the area of local program delegation; is discussed, followed by an
explanation of state oversight of local programs, direct state permitting
action, and POTW participation in nondelegated programs. The conclusion
is an analysis of program elements common to both delegated and nondele-
gated areas.
The last section is a discussion of staffing. Staffing is analyzed for
dedicated pretreatment personnel allocation. Other staff whose work
overlaps with pretreatment are identified. An explanation of the funding
priorities and funding sources is also provided.
The primary permitting and enforcement arm of Ecology is 'the Office of
Operations and Enforcement. The Office of Operations and Enforcement
provides oversight and manages Ecology's four regional offices. Figure 1
is an organizational chart illustrating the regie.-.3! office function in
Ecology. The regional offices will be providing the dedicated pretreat-
ment staff time necessary for most of the pretreatment functions. An
operations staff person at Ecology headquarters will be coordinating
regional efforts in pretreatment. Other headquarters staff will provide
backup assistance in areas where pretreatment needs overlap their normal
job duties. Staffing is discussed in greater deta . 1 at the end of this
submittal.
The permitting and enforcement staff at Ecology h.;ve mul tidiscipl ined
backgrounds in environmental engineering, chemistry, and biology. When
writing a permit or inspecting an industry, they will be concerned not
just with pretreatment; but also with other issuer like spill control,
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010223/86 DRAFT 8 12/26/1985
hazardous aateriali handling, sludge disposal, etc. This provides for a
comprehensive permit and control operation in which pretreatment is one
part. It also allows for more efficient personnel time utilization where
a single permit or inspection can cover a variety of areas,
To accommodate the additional time requirements imposed by growing
permitting, inspection and enforcement duties, the regional offices have
been receiving increased staff in recent years. For purposes of this
submittal, the time allocations for pretreatment activities have been
extracted from the department's water quality planning documents and
noted as explicit values in the staffing analysis,
Local Programs
Who Develops Local Programs:
The priorities for requiring local programs will be based upon water
quality requirements, plant operations history, plant size, and the
number and types of categorical industries impacted. Generally, munici-
palities which have a flow greater than 5 HGD will be requested to
investigate local delegation. This is not an absolute cutoff and it is
likely that plants with smaller flows, but more industries might be
required to seek delegation. Conversely, plants serving primarily
nonindustnal customers will not be required to seek delegation. Ecology
retains the option of requiring local pretreatment program development
where deemed appropriate. Program development will be scheduled into
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010223/86 DRAFT 9 12/26/1985
NPDES permits or administrative orders and encouraged by grant eligi-
bility for program development.
A number of Washington municipalities have assumed delegation of the
federal pretreatcent program. In addition, Seattle METRO has obtained
separate delegation of both the federal program and the state waste dis™-
charge program. Table 1 denotes those municipalities which have local
programs or have been required to develop a local program. It is estimated
that a total of 16 local programs will be delegated by the year 1990.
Ecology will oversee the local programs noted in Table 1. Although many
o£ these local programs were developed in response to the 301(h) waiver
application requirements, Ecology will require implementation of these
programs regardless of the outcome of the 301(h) waiver appeals. Imple-
mentation requirements will be instituted by modification and reissuance
of the municipality's NPDES permit or required in administrative orders,
if appropriate .
Local Program Development Procedures:
In developing local programs, plans of study including negotiated
schedules, will be developed by the affected community. Ecology will
review and approve the plans of study. The schedules can be placed in
the POTW NPDES permit or it can be set in place by administrative order.
The prograns development schedule will generally not exceed 12 months.
The municipality will be required to develop their respective programs as
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Table 1
Local Program
Delegated
Anacortes
Lynnwood
Metro
Port Angeles
Richland
Tacoma
Currently under Development
Spokane
Vancouver
Yakina
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010223/86 DRAFT 10 12/26/1985
specified in WAC 173-216. These requirements, contained in the com-
munity's prograo development schedule, are contained in Appendix 3. As
outlioed in 40 CFR 403.5(c), Ecology will require affected cities to
develop local limits. Guidance will be provided through both direct
contacts and written materials such as EPA's Program Development Guidance
manual and Region X's Pretreatment Program Implementation Guidance
maoua1. Program development will be tracked through the requirement of
interim submittals. Enforcement _of a schedule will be handled as any
permit conditioner order. Ecology enforcement procedures are explained
in greater detail later in this submittal.
Municipalities will be required to submit interim elements to Ecology for
review and approval. Ecology has determined that it would be more
efficient to conduct reviews of these submittals in lieu of waiting for
the community to submit its formal application. Through this process, it
is anticipated that the municipality's formal application will be in an
approvable condition, allowing the state to proceed directly with public
notice with little need for review, A formal application will be sub-
mitted by the municipality in accordance with requirements specified in
40 CFR Part 403.9.
The timely review of interim and final program submittals will be by the
Ecology regional staff with assistance from headquarters. A local pro-
gram review checklist containing essential pretreaiment program require-
ments is provided in Appendix 4, Ecology headquarters will review the
municipality's formal application in accordance with procedures outlined
in 40 CFR Part 403.11, Upon a determination of acceptability. Ecology
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010223/86 DRAFT 13 12/26/1985
Ecology has several mechanisms for double checking industrial discharger
information provided by the delegated POTV.
1. The planning and specification review authority held in the
Department of Ecology cannot be delegated to local authorities.
Therefore any new industries entering the State of Washington
will still be submitting their engineering reports, plans and
specifications to Ecology for approval prior to construction.
2, Ecology can use the resources of other state agencies,
specifically the Department of Revenue and the Department of
Labor and Industries to double check the location of industries
in Washington, both by category and by specific location.
3. As discussed above, Ecology will carry >ut independent moni-
toring of selected dischargers during th^ local program audits.
The Department of Ecology will conduct a review of POTW draft industrial
user permits. Ecology will have 30 days in to wruch to comment on a
POTWs draft industrial user permit. If Ecology d.. es not. comment, the
POTW may proceed with issuing the permit without, further notice to
Ecology. Where an existing state permit is in plac-:-, the industrial user
will be notified of the change to the Local permit by the state regional
office.
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010223/86 DRAFT 14 12/26/1985
Additional general stipu, at>ons pertaining to all industrial users,
whether in a delegated or nondelegated location, are noted on page of
this submittal.
State Run Program
State Permitting system:
The current program of controlling industrial users discharging to
nondelegated sewerage systems is based OD the state waste discharge per-
mitting program. This system has been in place for many years. State
law requires that all commercial and industrial dischargers into sewerage
systems have a permit. (90.48.160 RCW) The implementing regulation for
this requirement is Chapter 173-216 WAC. This regulation has been modi-
fied to incorporate the federal requirements for operating a state run
pretrea trnent program. Both categorical and noncategorical industries are
covered. In fact, anyone discharging waste other than domestic waste"
water can be required to obtain a permit.
The majority of permits that are currently held by industrial users
should meet current standards. The state has had Lhe option of using the
EPA standards under a state clause requiring "all known available and
reasonable treatment" even before EPA finally promulgated the numbers and
their regulations. Therefore the majority of stale permits issued to
categorical industries should have the categorical limits imposed.
Existing permits will be reviewed to insure compliance with current
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010223/86 DRAFT 15 12/26/1985
requirements. If more stringent local limits are developed, the existing
permits will be updated in accordance with WAC 173-216-130.
Permit issuance will be issued based on the following priority:
1. Public health concerns
2. Environntenta1 concerns such as preserving water quality, sludge
quality or sediment quality,
3. Other management priorities such as the categorical industries
required by EPA and other large noncategorical industries which
have a significant impact on the downstream POTW,
U. Existing permits will be reviewed to e-.sure compliance with
current regulations beginning with the jtegorical dischargers
currently under state permit,
In the event that an industrial discharger is fc.Lnd to be operating
without a permit, they are subject to enforcement actions. (See page .)
Cease discharge orders way also be issued. Expired permits which have
not been administratively extended fall into this >jme classification,
Expired permits may be extended by administrative order. A compliance
schedule can accompany this order if the expired permit does not meet
current categorical requirements.
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010223/86 DRAFT 16 12/26/1985
If the federal compliance date has passed,•Ecology can issue a compliance
order with a pennit if the industry is not already meeting federal
requirements,
Industrial User Inventories;
Two user inventory studies have been performed in the State of Washington
in the last five years. The most recent update report was performed by
SAIC at the direction of EPA in 1985. This report can be kept up to date
in several different ways:
1, Each POTW, even in aondelegated locations, is required to
maintain a list of industrial users and to provide an update of
that list on an annual basis to the Department of Ecology.
2. All industries setting up shop in the S^ate of Washington must
undergo a plan and specification review by Ecology.
3. The departments of Labor and Industries and Revenue maintain
computerized lists both by category and location of current and
proposed industries for taxation purposes. These lists are
available for Ecology reference.
The responsibility of the nondelegated PQTW to report new industries in
their system also includes the requirement to notify Ecology of changes
in aa industrial waste stream. Any industrial permits will carry the
same stipulation so that the industry will have to report any changes in
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010223/86 DRAFT 17 12/26/1985
industrial processes directly to Ecology. A computerized tracking system
will be utilized to maintain a list of these industries and periodic
industrial investigations will be undertaken to ensure that all informa-
tion is being properly delivered to Ecology.
Reporting Requirements:
The inventory of industrial users will serve as the initial basis for the
notification file. On promulgation of a categorical industry standard by
EPA the Ecology regional offices, industrial users, and the affected
POTWs will be notified through the Headquarters office of the Department
of Ecology, Baseline monitoring reports (BKR) will be required from the
affected industrial user. An EPA baseline report form will be forwarded
to the affected user (see Appendix ). Existine industrial facilities
will be required to submit their baseline repor".: within ISO days from
the effective date of the federal categorical standards. New source dis-
chargers will be required to submit their BMR within 90 days of commence-
ment of discharge into the city sewers. Additional reports that will be
required and reviewed are compliance schedule progress reports (CSPR),
final compliance reports (FCR) -- 90 days after the final compliance date
for existing dischargers; and, upon commencement. f discharge for new
source dischargers. Self-monitoring reports (SttKi, accidental spill
reports and treatment plant upset reports will also be required and
reviewed by Ecology. A computer tracking system will be utilized to
ensure that notified industries submit their baseline monitoring reports
in a timely fashion, as well as track the CSPR, FCF; and SMRs. Enforcement
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010223/86 DRAFT IS 12/26/1985
will be uodertakea if industry fails to report or reports indicate
Permit Procedures:
Appendix ? provides an example of a state waste discharge permit application.
The permit oust be filled out completely and is verified by communication
with the applying industry and through cross reference to other state
agencies, Industrial facilities are required to comply with signatory
requirements as specified in WAC 173-216-070, Failure to complete the
application results in the return of the application. Failure to apply
for a permit puts the industry in violation of Chapter 90. <+8 . 160 RCW and
the industry is subject to a fine of up to $10,000 dollars per day. The
permit fees must accompany the application and the permit fee schedule is
shown in Appendix 8. Ecology has confidentiality procedures if dischargers
so request ,
The application must be preceded with an approved set of plans and speci-
fications addressing such areas as spill prevention, equipment reliability,
and the other requirements of Chapter 173-240 WAC. Appendix 9 contains a
copy of the spill control procedures which Ecology uses in reviewing an
industries spill control plan. Plans and specifications over two years
old will need to be updated. Although this document is directed towards
petroleum product control, the same procedures are applied to other
chemicals by Ecology. The engineering report, must include a statement
indicating that applicable pretreatment standards will be met by the
design as submitted. A operation and maintenance manual (which includes
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010223/86 DRAFT 19 12/26/1985
an accidental spill control plan) must be approved prior to issuing the
permit.
Following approval of the engineering report, plan and specifications,
aad the operation and maintenance manual, a permit can be issued. Permits
issued to industrial facilities will include all appropriate local/state/
federal pretreatment standards and requirements. If, for example, the
local community has local standards, an evaluation will be performed to
determine if they are more stringent then state or federal standards. If
any of the limits are more stringent, they will be placed in the permit.
Additionally, the state will not allow dilution as a substitute for
treatment, aad will employ, at a minimum, the combined waste stream
formula for facilities that have combined waste streams for which
different standards apply to each of them,
Public notice will be handled by the permittee. Permit review may be
undertaken by other agencies or persons outside of Ecology (e.g. Depart-
ment of Social and Health Services or Puget Sound Water Quality Authority)
and may involve the EPA. Permit modification may be undertaken under the
conditions of Chapter 173-216-130. Either the permittee or the agency
may initiate a request for modification. Modifies:ions, if necessary,
will be undertaken by Department of Ecology Regional Office. Modifica-
tions will require a review comparable to the original issuance of the
permit including a review of the treatment mechanisms as noted under WAC
173-240. It will also require public noticing again.
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010223/86 DRAFT 20 12/26/1985
Permit duration is for five years. Permits may be transferred as noted
under Chapter 173-216-120. Permit reissuance oiay be undertaken without
permit modification if none of the original conditions upon which the
permit was based have changed. A public hearing will not be required if
the permit is identical to the previous permit and no conditions have
changed.
To further clarify tbe state procedure, an actual case example proceeded
in the following fashion:
• Industry X sent Ecology letter indicating that they would be moving
into Washington. The letter included a request for a permit
application.
• Permit application was made,
» Permit approval was withheld pending approval of an engineering
report, plans and specifications.
• The first submittal of the engineering report, plans and specifications
was incomplete. A copy of Chapter 173-2^0 :«AC was provided to
facilitate a new submittal.
* Site visits were made to an existing operation to evaluate pollution
control system performance, split samples taken and results compared.
* Engineering report, plan and specifications resubmitted and approved.
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010223/86 DRAFT 21 12/26/1965
* Plant construction begins.
* Operations, maintenance manual and spill control plan reviewed.
• Permit issued using new source performance standards.
* As-built drawing submitted for records.
* Inspection held, samples taken.
This process included contacting local utility officials and ensuring
capacity for the new customer existed. Storrawater disposal, spill
control and chemical handling were also reviewed.
An existing plant might be handled slightly differently in that:
* Contact would be initiated by Ecology.
• A schedule of submittals would be developed,
• The engineering report requirements will i:.elude the baseline
monitoring report requirements as noted in the Federal regulations,
Inspections :
Inspections of industrial dischargers will be performed to ensure
compliance with permit conditions. Inspections may also be carried out
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010223/86 DRAFT 22 12/26/1985
in response to citizen complaints, spills or through notice of a POTW
upset. An inspection may be scheduled or may be a. surprise visit at the
discretion of the inspector.
In selecting industries for compliance inspections, the following
concerns are the highest priority:
1. Public health concerns.
2. Environmental concerns such as preserving water, sludge or
sediment quality.
3. Management priorities such as categorical industries and
chronic violators.
4. Time since the last inspection.
Inspections are carried out by regional office staff. During a regularly
scheduled inspection, the regional staff person v, 111 walk through the
entire industrial operation. They will check hazardous waste storage and
disposal, spill control, plant sampling procedures, the testing procedures
(if handled in-house) and split a sample with the industrial discharges;'.
Essentially, the inspection will be identical to that conducted on an
industry with an NPDES permit.
As noted above, the regional staff will conduct any inspections. The
headquarters office will work with the regional office in scheduling
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010223/86 DRAFT 23 12/26/1985
industries for inspections and will transfer citizen complaints to the
region for response.
Non-Delegated Local POTV Participation
In jurisdictions where local programs have not been developed, Ecology
can still require local participation in pretreatrnent.
An example of the permit language mandating local participation in pre-
treatraent monitoring is reproduced in Appendix 10. Such language has
been and will be inserted in all new NPDES permits issued to affected
communities.
The municipality may be required to maintain a monitoring and sampling
schedule on industries subject to pretreatment rtjuirements, The data
generated by this monitoring will be provided to Ecology for enforcement
purposes when violations occur.
Procedures for all__POTWs
Plan and Specification Review:
Under Chapter 173-240 WAC, Ecology is currently required to review and
approve plaos and specifications for proposed new industrial discharges
to municipal sewer systems. The individuals responsible for such review
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010223/86 DRAFT 24 12/26/1985
and approval in the regional offices will be kept up-to-date on the
latest federal requirements concerning industrial pretreatraent,
Prohibited Discharge Standards:
Prohibited discharge standards have been adopted as part of the state
permit regulation (Chapter 173-216 WAC). In addition, Ecology is incor-
porating prohibited discharge standards into municipal permits and also
requiring municipalities to incorporate the standards into municipal
ordiaaaces. A model sewer use ordinance for use as an example by smaller
nondelegated municipalities has been developed by Ecology. The prohibited
discharge standards will apply to all dischargers to publicly owned sewer
systems. When a state permit is issued to an industrial user, the prohi-
bited discharge standards will be included as a permit condition. Viola-
tions of prohibited discharge standards are subject to the same enforce-
ment procedures as any other water quality or permit violation.
Noncategorical Industries:
All industries discharging to a sewer system in Washington are subject to
the requirements of the existing state permit program. Permit and
enforcement priorities have been and will continue to be directed toward
those situations impacting public health, water quality, and plant
operat ions.
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010223/86 DRAFT 25 12/26/1985
Removal Credits:
The State of Washington will not approve requests for revision of
categorical pretreatment standards for removal credits because of
provisions in state law requiring the use of all known, available, and
reasonable methods of control or treatment or pollutants regardless of
the point of discharge.
Variances for Fundamentally Different Factors:
In accordance with the procedure outlined in 40 CFR 403.13, Ecology will
conduct a review of all complete submissions for fundamentally different
factors received from an industrial user discharging to a POTW for which
Ecology has either direct or oversight authoritv If the review finds
that fundamentally different factors do exist, :ne request will be
forwarded to EPA with an appropriate recoramendati_n.
Enforcement:
Authority for the Washington Department of Ecology to enforce state and
federal water pollution control laws in the Sta'.-: of Washington is
contained in Chapter 90.48 RCW. This authority includes issuance of.
notices of violation and administrative orders aril the assessment of
civil penalties for violation of provisions of Cnapter 90.48 RCW or
regulations or orders issued thereunder. The maximum civil penalty which
may be assessed by Ecology is 510,000 per day per violation (RCW 90,48. 144)
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010223/86 DRAFT 26 12/26/1985
except that discharges of oil raay result in penalties of up to $20,000
per violation per day (RCW 90,48.350),
The current HPDES enforcement procedures agreed upon by EPA and Ecology
will serve as the basis for pretreatment enforcement. These procedures
are have been updated to accommodate pretreatment aeeds as well as other
issues. A copy of the enforcement policy and procedures for Ecology is
provided in Appendix 11. Pretreatment: violations are considered water
quality violations since pretreatraent authority is vested in Chapter
90.48 RCW. A list of significant noncomplying industries in nondelegated
communities will be published annually by Ecology.
Monitoring:
Ecology currently performs regular inspections and sampling of POTWs as
per the annual SEA. Testing of samples from these inspections will be
expanded to include the analysis for appropriate toxicants to monitor the
effectiveness of the pretreatment program. POTW toxicant analysis is
currently required on a limited case-by-case basis. A toxicant strategy
is currently under development to provide comprehensive guidance on the
use of toxicant analysis of sludge, influent and effluent from POTUs.
Ecology currently shares a laboratory facility with the EPA in Manchester,
Washington. This facility has all the analytical facilities necessary
for the pretreatment program.
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010223/86 DRAFT 27 12/26/1985
POTWs which fail to carry out a delegated program are subject to enforce-
ment action for failing to carry out the conditions of the POTW permit.
They can also be liable for resource damage costs. Industries in
delegated areas are subject to Ecology enforcement action through the
stipulations of Chapter 173-216-050-C.
Net Gross Determinations:
Net gross determinations can be requested by an industry. To date, all
such requests have been denied and the impacted operators have been
required to treat to the technology based standard.
Upsets :
The enforcement manual previously referenced (Ap;vvndix 11) provides the
state policy concerning upsets as a defense against enforcement.
Categorical Determinations:
Ecology has and will continue to make categorical determinations. These
determinations will be made at the regional level -Lth backup support on
request from headquarters. The effluent guidelines division of EPA may
be contacted as necessary. Appeal may be made to the Pollution Control
Hearings Board. Where the state makes a positive determination, it will
be forwarded to EPA Region 10 in accordance with the Memorandum of
Understanding.
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010223/86 DRAFT 28 12/26/1985
STAFFING AKP FUNDIMG
Staffing
Analysis:
The State of Washington has made an analysis of the additional staffing
requirements needed to carry out the program described in the Procedures
Section of this subraittal. The permit system is on a five-year cycle and
will be repetitive after the first ten years. Therefore the analysis
does not extend beyond ten years,
The breakdown of estimated staffing needs and work 4ays for each portion
of the program are shown in Tableland illustrated in Figure jjt, for the
first ten fiscal years.
The following key is provided to further explain each line item of the
staffing analysis in Table 2:
1. This is a one-time allocation to set up j computerized industrial
permit tracking system. This system uould also track com-
pliance schedules, report subraittals and enforcement actions,
2. This is a one-time allocation to notify the categorical
industries identified in the industrial survey, of the need to
submit baseline monitoring reports.
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14
91
St
444
54
fc7B
6BZ
4
156
12
40
224
48
2)
14
9]
59
644
54
676
662
4
IbO
!2
40
224
48
21
14
91
59
644
34
fa/8
68?
4
164
12
4(1
224
48
21
14
91
51
i44
34'
67B
682
4
I6i
-------
010223/86 DRAFT 30 12/26/1985
3. This is a one-time allocation to review the baseline monitoring
reports.
4. This is the first cycle of permit issuance. Although many
existing permits may be current (see page ) , a conservative
assumption that all industries will need new permits has been
made. The time allocation is slightly higher for aoncategorical
industries (4b) since these generally require more time than
the categorical industries for which EPA has set standards.
The time allocations are based on the historical time required
to issue state discharge permits. The noncategorical industries
are stretched over five years to attenuate the five years surge
of permits.
5- This is the ongoing job of reissuing an"! renewing permits. The
time allocations are based on the historical time required to
issue state discharge permits.
6. The assumption is the 10 percent of the issued permits will
require modification. The time allocation is based on historical
data .
7. This row shows the number of scheduled compliance inspections
to be carried out on permitted industries each year. The time
required for this work increases each year as the number of
permits increases. After six years, the estimate is that
75 percent of permitted industries will have a scheduled annual
-------
010223/86 DRAFT 31 12/26/1985
inspection. Persistent noncompliance or potential environ-
mental hazard will result in more frequent inspections for some
industries. However, no permitted industry will go more than
two years without an inspection. The time allocation is based
on historical data.
8. The assumptions are that three local programs will be developed
annually and that each delegation will require twenty days of
ecology time. A total of nine additional programs are anticipated
over the first three years.
9. The assumption are that each local program will be audited
annually and that each audit will require three days.
10. The assumption is that twenty percent of the industries will be
subject to some type of complaint each Year. The time alloca-
tion for the initial followup is based on historical data.
11. The assumption is that ten percent of the industries will have
s reported spill requiring investigation each year. The Lime
allocation for response is based on historical data.
12. The assumptions are that:
12a. Each year, ten percent of all the industries will be
subject to an initial enforcement action.
-------
010223/86 DRAFT 32 12/26/1985
12b. Each year, two percent will be subject to a full enforcement
action with aa appeal process up to the Pollution Control
Hearings Board.
The time allocations are based on historical data.
13. This is a subtotal of the total time required to accomplish
tasks 1-12.
14. This is an annual allocation of 11 days of training time per
staff person year.
15. This is row 13 plus row 14.
16. This is the staff allocation set aside for pretreatment purposes
for FY 86.
17. This shows the shortfall in a given year. A negative value
indicates a shortfall of staff time for a given year.
18. This row examines the cumulative impact of the initial time
shortfall. The assumption is made that work not accomplished
in 1986 will carry over into 1987, etc.
The workload analysis graphically depicted in Figure^ shows an initial
shortfall of staff. This can be expected in the startup phase of any new
-------
010223/86 DRAFT 33 . 12/26/1985
program. After startup, the program will enter a five-year cycle
-------
T r j;!/ p
M T '-- P Li
-------
010223/86 DRAFT 34 12/26/1985
corresponding to the permit periods of five years. The horizontal line
represents a conservative estimate of the total professional time alloca-
tion available for implementing the pretreatment requirements. This is
based on one full time person in headquarters plus two full time equiva-
lent regional person.
To compensate for the initial high workload, Ecology will pursue two
opportunities:
1, The 60 days required for setting up a tracking system may be
reduce through the use of excess 104 funds to set up the
tracking system as a separate project.
2, EPA may, either directly or through a Contractor, be able to
provide some assistance during the first year program startup.
As noted in the procedures section, the regional staff are generalists
who will be involved with all aspects of an industrial operation including,
but not limited to pretreatment, spill control, hazardous waste handling,
sludge disposal, etc. This allows for more efficient, use of staff time
and provides a more consistent contact with indusl;y.
The regional offices will remain the first line of contact in the event
of permit violations, complaint investigation, and enforcement actions.
A pretreatroent coordinator position has been established at headquarters
for the purpose of coordinating regional pretreatment efforts.
-------
010223/86 DRAFT 35 12/26/1985
Although this analysis indicated am initial shortfall of available staff,
it is felt that automation and program familiarity will result in a
reduction in the time required per task. The available staffing should
be adequate after the first year of program initialization. Other
program aspects such as plans and specifications review and POTV monitor-
ing are undertaken as a normal part of Ecology enforcement operations,
No unusual effort is anticipated in these areas due to the new pretreat-
aent program requirenents. Staffing for those functions are, therefore,
not included in this analysis.. Additional staffing levels are also not
noted for the development of a model ordinance, updating enforcement
procedures, grant management or other general state output which will
interact with pretreatnient. Pretreatment issues will be incorporated as
part of the general work effort in those areas,
Dedicated Staff
Figure 1 on page illustrates the current Ecology organization,
A pretreatment coordinator position has been established at headquarters
io the Operations and Enforcement Office. This position which is already
filled, requires a PE plus one years experience in industrial pretreatment
The regional allocations have also been made. The regional offices will
handle pretreatment out of their Environmental Quality Sections. These
are existing district engineer aad district inspector positions with
additional time allocations for implementing the federal segment of the
-------
010223/86 DRAFT
36
12/26/1985
state pretreatment program. These positions require a degree in engineering,
biology, or chemistry.
Nondedicated Staff
Technical:
Implementing the federal pretreatment requirements will overlap several
other areas in which Ecology has separate resources. The coordinator
position is responsible for ensuring that pretreatment concerns are
appropriately addressed and program information disseminated. Resources
such as analytical capabilities and data processing are available to the
pretreatment program and will be paid for on an "as required" basis out
of the current funding allocation.
Technical Sections with Functions
Impacting the Pretreatment Program
Element
Sludge Disposa 1
Laboratory Services
Hazardous Waste Generation
Grants
Data Processing
Program
Solid and Hazardous Waste
Sampling/Laboratory
Solid and Hazardous Waste
Grants Adrr : :.ist rat ion
Informatior: Systems
-------
010223/86 DRAFT
Nontechnical:
37
12/26/1985
Other Ecology resources available to implement the pretreatment program
include a word processing center, cartography and drafting services, a
staffed library and normal clerical assistance. All of the resources
noted above are available to the entire agency and are part of the
general overhead.
Funding
POTWs volunteering or required to develop local pretreatment programs are
eligible for grant funding (if any is available) for pretreatment program
development. Local program implementation costs are recoverable with
user charges placed on the industrial users. Local funding will be
assured prior to local program delegation.
The only funding source available for the additional state staff needed
to carry out the program is Section 106 funds including Section 205(g)
funds beyond those used for construction grant management. Funds from
this program have been earmarked to carry out a substantial portion of
the program for FY 86, This funding includes an allocation for the
charged general Ecology services for analytical resources and data
processing. Funding for the state staff necessary to carry out the state
pretreatment program in FY 87 and future years will be identified in the
State/EPA Agreement for each fiscal year.
-------
General Outline For Program Descriptions
I . Scope of Program
a. Introduction
b. History of water pollution regulation in State
c. Procedures propose to use (in following materials...)
0 Outline of permit program being proposed
- Who must apply
- General reauiremertts (hoops )
d. Designation of a lead State Agency
e. Cites to leaal authorities (Statute an Regs)
11 . 0_rg_a_p i za^tion of Lead Agency
a. Narrative of executive branch
b. Narrative of Water Agency and other relevant bodies
0 Inhouse counsel or A.G.'s office
0 General functions of each branch, including regional
off ices
c. Provide charts of hierarchy
d. Charts of regional offices and jurisdiction
III. Resource Summary
a. Sources of funding, with estimates
b. Staffing reauirements
0 positions, $ of work years, salaries ner office/branch
c. Summary of anticipated expenditures
•*
IV, Descr ipj:_i_gn__of Procedures
a. General Adminitrative Procedures
0 Where/How rules published
0 Public hearings/Information
0 Conflict of interest/ continuing planning process etc.
-------
b. Specific Administrative Procedures (use permitting manual
if available)
0 Narrative of NPDES permitting process
- Who, what, where, and when, including public/EPA
participation opportunities
0 Flow chart of permitting procedures
0 Opportunities for appeals and judical review of
Agency action
0 Compliance monitoring procedures
- Use of DMR's
- How sampling and inspections done
0 Enforcement program
- (See Enforcement manual if available)
- Types of actions available/penalties
- Criteria for actions, timetable, S/EPA Agreements
- Public i nvolvement
0 Forms used for permitting, compliance monitoring
and enforcment activities
0 Other
-Pollution hotlines, etc.
0 Pretreatment program (See manual if available)
- Use of local proqjrams
- Implementing general prohibitions, categorical
standards' and local limits
- Compliance monitoring/Enforcement, particularly re: I.U.'s
- Removal credits
- FDF's
- Sludge programs
0 Federal Facilities program
- Background on FF's in State
- How State inte.nds to regulate FF' =;
-• Special procedures (if any)
° General Permits program
- Priorities/uses intended for general permits (stormwater)
- Special permitting procedures, including how treat
dischargers once permits expire
-------
cctJSEm1 AGR.
- WORKLOAD REQUIREMENTS
IT If
The resource estimates set out below are calculated based upon EPA fiscal years running from October to September,
rather than the State's July-June cycle.
Act ivi ty
1. Statute/
AG's Statement
2. Regular ions
3. NCI )KS
Permitting
a. FJ iminate
backlog of
majors
Consent Agreement
EPA sent comments on the
CT statute in July- The
State mist, amend the
statute during the 1980
legislative session, or
explain in the AG's State-
ment hew CT law is con-
sistent with the CHA.
Bill must he submitted by
December 1, 1905.
State must develop NPDES
and pretreatment regulations.
The regs. must be effective
by May 15, 1986. EPA sent
conments to the Region on the
draft regulations on Sept.
6, 1985 and to the State oil
September 10, 1985.
The State Gamuts to eliminate
the backlog of major permits
(municipal and industrial)
by March 31, 1986. The back-
log includes all permits that
expire by 9/30/85.
Current backlog - 64 indust.,
64 munic.
Source: September 10, 1985 PCS
Pricing Factor
FY 66
FY 87
EPA -
0.5 work-yr.
CT -
FPA -
1.0 WY
CT -
EPA -
35 WDays/lnd.
"20 WD/Munic.
CT -
Indust.
Municipal
FY 88
0.5 work-year
1.0 WY
35 X 64 = 2240 WD
= 10.2 WY
20 X 64 = 1280 WD
= 5.8 WY
N/A
N/A
N/A
N/A
-------
CONNECTICUT ODMSKNT AGREEMENT - ;WQRKI£)AD REQUIREMENTS
Activity
Consent tereernent
Pricing Factor
FY 86
py 8?
PY 88
b. Toxics
strategy
4. Pretreatment
a. Permits
State will finalize toxics
strategy by 1/1/86. State
will begin reopen ing permits
consistent with the strategy
by 6/30/86. The State will
ccnplete reopening o- permits
by 6/30/88. Initial estimates
ace that 50-70% of the major
penrdts may need to be re-
issued under the strategy.
estimates basal on
50% - 25%/year)
Analyze data iron permits with
bioftonirjorinrt requirements.
Each permit with biuroonitoring
requirements roust be reviewed
to determine if permit limits
are needed.
rtilif/ penroits to
toxic ity I niiit.it ions.
(EPA assumes approximately
40% of permits with biuraoni-
toring requirements must be
reopened to inclule permit
limitations.| _ _
State roust issue permits to
all categorical indirect
dischargers ami.other indirect
dischargers if necessary. The
State must issue 33% of the
unissued permits for indirect
dischargers each year, CT
roust issue permits to 28C>
EPA -
Strategy -
2,0 WY
Reopen permits
to include
b i
-------
CONSENT ftGf EOT -
SEP
Activity
b, IU Survey
c. Legal Notice
d. local 1 units
Consent Agreement
Pricing Factor
Ff 86
State mist survey all IDs
by April 1, !9fl5. EPA will
supply contractor assistance
to perform survey -
State shall supply legal
to all indirect dischargers
by October 1, 1985,
State wi 11 begin program to
develop local limits. CT
will corplete local limit
development by 12/31/86. CT
will incorporate local limits
in permits issued to both
categorical and non-cate-
gorical IDs. Workload esti-
mates includes influent/
effluent sampling, analysis of
sanpling data, and the deve-
lopment of local limits. The
State nust also issue permits
to non-categorical lUs and
modify permits to oategoricals
I i •• i iu '' 'I I « H - i' • ! i i ji ! I i ' 1n- -i il ;-,
based on local limits.
[Assume 450 permit actions,
beginning in 1987.]
N/A
Contractor
cost - $15,000
approximately
Ft 87
N/A
loss than one month total
I PA -
San pi ing
10 WD/PCTO
Analysis
10 WD/P01W
Local Limits
15 WD/P0IW
Perm! ts
5 WD/permi t
CT -
Sanpiing
Analysis
Local Limits
Permits
10 X 91 =
JO X 91 =
15 X 45 -=
910 WT)
4. L WY
910 wn
4.1 WY
G75 WP
3.1 WY
FV 88
N/A
15 X 46 = 690 WD
= 3.1 WY
5 X ISO
750 WT>
3.4 WY
N/A
5 X 30O = 1500WD
= 6,8 WY
-------
e. Inspect ions
Descr iptign_
The State will inspect at
least 50% of all categorical
indirect dischargers each
year. Includes inspect ion
and fo1low-up.
5, Enforcenent
a. QNCRs
b. Track i ng
system
c. National
Municipal
Po I i cy
6. Construct.ion
Grants
State will inprove quality of
QNCRs.
State will develop system for
tracking enforcement actions.
State will develop strategy
and cctiplete inventory of
minor municipals lw 1/1/R6
will comiuct ocnplete
program audit covering
grants under sections 106,
205( j).
Pricing
FY 86
EPA -
2 days/insj^ec.
"CT -
4 rejxirts @
4 WD/5U Majors
CT -
N/A
[included in
otiier enf.
workloads]
N/A
in
WOl k
88
2 X
337* = 674 WI)
= 3.1 WY
X 4 X 202/50
= .3 WY
2 X 550 =
UOO WD
5.0 WY
-3 WY
5.0 WY
- 3 WY
N/A
N/A
V Estijnate of 337 inspections is based upon current State knowledge of 250 catfjyorical industries, wi
additioiiri.! infonnaticffi on irxlustrial users to h£ provided the State on April 1, 19H6 after crisp Jot
-^f the audit, T^us, tJie State will inspect 50? " 250 for 1/2 year = 62 facilities, plus r>0t of ' "0
for 1/2 year = 275 for a total of 337 inspect it ... Obviously, this nunt*r txsilii )«• cl,.tivit-] Ivjs^i .v.
son ai>- res >.
-------
Activity
NPDF.S PROGR^. CMGOING WORKJ/M) REQUIREMENTS
C( n 17
SIP I
1. Permitting
2. Pretreatment
Descr irjt i on
Issue permits to major [X>int
sources not included in
backlog.
[Based on assumption that
currently unexpired Stato
permits are reissued at a
flat rate over the next four
years.
issue permits to minor point
sources
[Based an asstmption that
State issues all minor permits
at even rate over five years,
despite current 64% backlog.]
a. Category determinations
h. Review DMRs.
Pricing Factor
FY 86
KPA -
35 WI)/Indust.
"20 W
CT - "
Inch is t -
Municipal
EPA -
7 WD/i in Just.
/muni.
CT -
Industrial
MI HI f -
EPA -
10 WD/IU
'CT -
EPA -
.25 WD/BMR
FY 87
35 X 15 = 525 WO
= 2.4 WY
20~X~2'" '=• 40" 'WD '
= 0.2 WY
7 X 103 = 721 WD
= 3.3 WY
5X3'"= T5~WD "
= ,1 WY
10 X 22 = 220 WD
= 1.0 WY
.25 X 1100 = 265WD
= 1.2 WY
I-Y 88
2.4 WY
0.2 VTf
2,4 WY
0.2 WY
3.3 WY
0.1 WY
3.3 WY
0. 1 WY
1.0 WY
1 .0 WY
-------
Activity
Description
ODNHRCTIOfr - ONOOTNG
Pricing Factor FY 86
FY 87
7 !
FY 88
Gumpliance
Evaluation
c. Semi-Annual Report Review
4. Enforcement
Inclurlen pre-enforcenient
evaluation of inching com-
pli.MiCP information (DMPs),
technical evaluat on of
cunpl i ancf- i n format i on, f ol 1 uw
up to correct noncumpliance,
and TOR Quality Assurance.
Incltiles negotiation o£ State
enforcement strategies, tech-
nical support to development
of civil referrals, ami
issuance of notices of viola-
tion arsl administrative
orders.
EPA -
,5 WD/IU
CT -
EPA workload
mo'et estim^t es
4-5 workyears
for CT to run
a c(jmpl iance
evaluation pro-
gram fo
direct dis-
chargers.
CT -
RPA -
VJbrkloarl model
estiiTiates that
CT ne-tls 2-3
WY for enforce-
ment against
major direct
dischargers.
~CT -
.5 X 1100 = 550 WD
= 2.5 WY
4.S WY
2.5 WY
2.5 WY
4.5 WY
2.5 WY
2.5 WY
4.5 Wv
2,5 WY
-------
OnNNECTIOfr - ONGOING
Activity
5. Inspections
6. PL'Ajr-tin
Support.
Description
National flunicipal R>1 icy
[Assume 30 days/AO and 110
days/Referral]
Includes all types of State
inspections of din-et dis-
chargers.
) rkp! u !<_"•• S.ii . i | >. ' >• ' •••••; iv ),
maintenance of comp1iance
files, and responses to
informat i<. >n requests.
Pricing Factor
FY 86
RPA -
Wbrkloacl model
estijnates 2-3
WY to implement
M1P
or -
EPA -
EPA's
analysis esti-
mates 15-17 WY
to implement an
in.spt^ction pi/o-
qnm for direct
d ischargers.
CT -
, we esti-
mate that CT
needs 1-2 WY
to carry out
these L terns for
major direct
dischargers.
FY 87
2.5 WY
16.0 WY
1.5 WY
FY 88
.S WY
2.5 WY
16.0 WY
16.0
1.5 WY
1.5 WY
-------
Activity
CONNECTICUT - OiQOIMG TORKLCAD RBQUIREMFWTS
Description
Pricing Factor
F¥ 86
87
StP i ? •'•
FY 8:
7. Hearings on
Pe limits.
Includes State-equivalent to
evidentiary hearings.
Wbrkload estimates are based
upon EPA evidentiary hearlrrj
process.
[Assumption! 20% of majors
will reqiaest evidentiary
hearirjqso Only 2% of major
industrials are assumed to
require full hearing process,!
EPA -
Settled -
50 WD/perrait
Hearing -
220 wo/permit
CT -
50 X 25 =
220 X 1 =
1250 WD
5.7 WY
220 WD
1.0 WY
50 X 4 = 200 WD
= 0.9 Iff
KO WY
0.9 WY
1.0 WY
-------
APPROVAL OF 'S NPDES PROGRAM
AGENCY: Environmental Protection Agency
ACTION: Notice of approval of 'S application to
participate in the National Pollutant Discharge Elimination
System (NPDES} program.
SUMMARY: On September XX, 19XX the Regional Administrator
for the Environmental Protection Agency (EPA), Region ,
approved 's re.quest to administer the National
Pollutant Discharge Elimination System (NPDES) program within
the State.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION: The Clean Water Act (33 U.S.C.
1251 et se_q. ) established the National Pollutant Discharge
Elimination System {NPDES) program under which permits are
issued for the discharge of pollutants from point sources
into the waters of the United States. Initially, the
Environmental Protection Agency (EPA) issues these permits.
States may be authorized to administer the KPDES program for
discharges into navigable waters within their jurisdiction
if EPA determines that the State program satisfies the
requirements of section 402(b) of. the Clean Water Act. With
the passage of the 1977 amendments to the Clean Water Act,
State NPDES programs must include a pretreatment program and
«
the authority to regulate Federal facilities. On July 6,
19XX, EPA published notice of _ 's reauest to
-------
» 2 -
administer the NPDES program in the £^de_rjal^ P_ec_i_st_e_r (XX F.R.
XXX). A public hearing was held on August XX, 19XX, in
, to solicit comments on the proposed authorization
of the program.
No comments were received at the public hearing. During
the public comment period no comments were received objecting
to the approval of = 's NPDES program. The one
comment received during the public comment period and the
one comment received after the public comment period closed
supported approval of 's program.
In support of its application for NPDES program approval,
has submitted to EPA copies of the relevant
statutes and regulations. The State has also submitted a
statement by the Attorney General certifying, with appropriate
citations to the statutes and regulations, that the State has
adequate legal authority to administer the State NPDES program
as required by 40 CFR Parts 123 and 403. EPA has concluded,
upon reviewing all of these submitted materials, that the
State has adequate legal authority to (1) administer the NPDES
permitting program, including the authority to carry out the
the program described in the program description and to meet
the requirements of 40 CFR Part 123 and (2) administer the
pretreatment program, including the authority to perform each
of the activities set forth in § 403 . 10(f)(1)(i) - (vii).
The State of has also submitted to EPA a
program description which sets forth a description of the
scope, structure, coverage and procedures of the State program,
permit revision schedules, compliance tracking and enforcement
-------
- 3 -
procedures; a description of the organization and structure of
the State Department of Environmental Management, and a
description of the personnel and resources to be dedicated
to the program. Based upon this information, EPA has concluded
that the State's program description meets the requirements
of 40 CFR §123.22, including the necessary staffing and
resources required by 40 CFR §§123,22(b){1)-(3) and 403,10{f){3)
to administer the NPDES program. In addition, as demonstrated
by 's regulations and program description, EPA
has concluded that the State has the necessary pretreatroent
procedures consistent with 40 CFR §403 .10(f ) (2).
The State of has also submitted to EPA a
-Memorandum of Agreement (HOA) which sets forth provisions
for the transfer of information between EPA and the State,
the modification of the MOA, information and responsibilities
on permit review and issuance, pretreatment, compliance
monitoring and inspection, enforcement, and confidentiality
of information. Based upon this information, EPA has concluded
that the MOA meets the requirements of 40 CFR §123.24.
Today's Federal Register notice is to announce the approval
of 's NPDES program, including its pretreatment
program and Federal facilities authority. "s
approved program is primarily based upon the following statutory
and regulatory authorities: State General Laws Section 10-20-1
e_t s e q. , entitled "State Environmental Rights"; State General
«
Laws Section 46-12-1 e_t seq^, entitled "Water Pollution";
State Pollution Elimination System Permit Regulations, effective
-------
- 4 -
July XX, 19XX; State Pretreatroent Regulations, effective
July XX, liXXr Water Quality Regulations for Water Pollution
Control, effective November XX, 19XX. In addition, the State's
statutory and regulatory authorities include: State General
Laws Section 36-14-1 ejt seg^. , entitled "Conflict of Interest";
State General Laws Section 38-2-1 e_t se_c_._, entitled "Access to
* ™^—
Public Records; State General Laws Section 42-17-1 e_t sec.,
entitled "Department of Environmental Management"? State General
Laws Section 42-35-1 e_t seq.; entitled "Administrative Procedures";
State General Laws Secti'on 42-dS-l et seq.; entitled "Open
••••m •» mm,,,: . *
Meetings"; Administrative Rules of Practice and Procedure for
Department of Environmental Management, effective November XX,
1SXX; Files and Records - Public Access Rules and Regulations
for the Department of Environmental Management, effective
September X, 19XX; Regulations Implementing State Conflict of
Interest Law, effective May XX, 19XX; and Underground Injection
Control Program Rules and Regulations, effective May XX, 19XX.
"FEDERAL REGISTER" NOTICE OF APPROVAL OF STATE NPDES
PROGRAM OR MODIFICATION
Under the Permit Regulations (See 40 CFR §123.61)
EPA will provide Fe_d_e_ral Register notice of actions by the
Agency approving or modifying a State NPDBS program. The
following table will provide the public with an up-to-date
list of the status of NPDES permitting authority throughout
the country.
0
(attach list of approved NPDES States]
-------
,291
_ 5 -
UNDER THE REGULATORY FLEXIBILITY ACT AND EXECUTIVE ORDER
Under the Regulatory Flexibility Act, 'EPA is required to prepare
a Regulatory Flexibility Analysis for all rules which may have
significant impact on a substantial nur.be r of small entities. The
approval of the _ NPDES perir.it program merely transfers
responsibility for administration of the NPDES program from the
Federal to the State government. No new substantive requirements
are established by this action. Therefore, this notice does not
effect a significant number of small entities. It does not trigger
the requirement of a Regulatory Flexibility Analysis. The Office
of Management and Budget has exempted this rule from the requirements
Section 3 of Executive Order 12291,
DATED:
I. M. Regional Administrator
Regional Administrator, Region __
-------
2Mtt
Federal KegUtec / Vel 51. No. 161 / Wednesday. Augut: 20. 1966 / Propotad Raiq
overall structure of the commtltee'*
deliberations. Those four strongly urge
that standard* for resolving «ao
warranty disputes be discussed
separately from standard* for resolving
disputes involving other consumer
product*. They believe that separata
treatment for aeiosaobiW is necesesary
to reflect the significance of the forty
recent state enactments affecting
informal settlement of auto warranty
disputes.
The Commission makes no judgmenl
concenuag the June* thet she-old be
con*ioet»d by die advisory committee or
the overall krmat for the coamitte« •
deliberations The list of iaeue*
appearing ID the February 12 notice was
intended to give interested persons a*
idee of the type* of questions that th«
advisory cxxnflsiliae woeld constdsc, end
was intended to be illustrative eoly. The
Commission believe* that the agenfe for
the advisory committee's discussions
should be left to the committee itself.
Accordingly, tbe Coxumuion wiH
forward the conmentere' suggevtktn*
and submissions, to the chairptnans for
diatributiaa to tbe committee members.
iRoetar
The advisory committee'! specific
objection will be to egree on the term*
of a notice of ptopoeed rulemeklng
(NPRM) that embodies proposais for e
revised Rult 703. U the nagoftatioBi em
STiccessfuL tbt committee will prepare e
report describing the factual baeii on
which the <*immitta» nijed in
developing it* proposal!. The
CommiMioD agree*, absent
extraordinary circmmjtanoes and
(ub)ccl to itetulocy requiremants, u>
Incorporat* the conmiUee't conseneus
recoimmendetiom* In en NPRM initiating
a proceeding te exxaod Rule 7Q&,
The fottowing etgenizetiou, IWeei by
essential InteretU. ere memben tS Ae>
Rule 703 Adviecry Coionrittec
Sponsoring agency:
Federal Trade CommiMion
Dispute resolution
AmericeB Aittnaafaie Amatittia*
Council of Better Beeieue Bvimie*, inc.
Major Applieaoe Coneumer Action
Pane)
New home warranty programs:
Home Ownen Warranty Copontion
Domestic autamobito manufacturers:
American Meters Corporation
Chryeter Corporation
Ford Motor Company
General Moloc* Corpora Uoa
Automobile importers:
Automobile hnporters of America, Inc.
Nissan Motor Corporation
Automobifa dealers:
American International Automobile
Dealers Association
Nitional Automobile Dealers
Association
Other major centumcr product
warrantofK
National Aiaociation of Home Bttilders
Re area ti on Vehicle Indmtry Association
Consumer a/fain agendas and state
otto rneys general:
Attorney Geocrml of Connecticut
Atlomey Oeverel of Maryland
Attorney Getiere! of Meesechuserts
Attorney General of NFW Mexico
Montgomery County, Maryland, Office
of Consumer Affair*
National Awodation of Consumer
Agency Aduikilf U a ton
National Confmeauw of State
Union County, New Jersey, Office of
Consumer
Cortsum or group*:
Center for Auto Safety
Contnmen Union
Motor Voters
National Consumer Lsw Center
Commuoicationa to the committee
members con earning advisory
committee matter* may be addressed in
care of the chairpersons at their
respective addresses, or In care of: Rule
703 Advisory CommUtea, Room 216,
FederaJ Trade rrrmmigfiftn
Washington, DC 20560.
First
Heating
The first seeling of tbe Rule 703
Advisory Committee is scheduled to
begis) el KtOO
-------
Register / V«L 51, No. 161 / Wednesday. Aiiguat 20, 1886 /
program reapQnub&Uee upon approval
by EPA,
Atkffli*a*' pcogrMK ffttJrritairtfrn for
NPDES
letter fmcn Lba Ganaxx
NPDES progEara appt»»al, a pragrma
description. aa IniJjfiAndanl CouBJUf •
sia tsmeoi, capita of Slate atataiai and
reguUttom providing authority h> cacry
out the program, and a Memorandum of
Agreement (MOA) to be execnted by the
Regional Admini«trator. Region VL EPA
and the Director. The Regional
Admted&tvtuK i* required to approve
each 8Kb ayfcmTHnil pmgtaai withte to
dayi of inairattai varievi it 4oa* not
meet tha ew^wiiumuwU rf vocttan 4K?fe}
of the Act oad EPA
amaag Oanar ttaag*, aatfaiiBi^f
viriatteita, and aataairiirf to aww*
the public ii final wttoa anal
opportunity £v feaAcvv QB a^£di
propoa* d KPOES pai»tt jaamaca.
At the claaa of tfaa public
within the itiacty {9Qj day rv,.»- ,—*
the EPA BLegJooil AdminidcaUr wiH
decide to *yprovt or "
to approve or
i' NPDES pro-am wffl be
bated OB the requlrmmeati of ectioc 482
of the CWA and « CFS Fart 133- If
Arkarua*' NPDES program li tpprovei
the AdrofeitifaBtPf «Kll «o notify tin
State. Notice vrill be pttbtafeed in the
Federal Ifcu^bfcn and.
program wpfrwnt, EPA
ieaitance of NPOES p«rwMi
The State's
EPA
EPA wii rWaifl
things h> «bfeet NPDES parndti
proposed t« ba iuuad by on
State Mid to take eafamnest
for vioiiiiaa*, M Uw
NPDES progMirE. libie AdmLnJitiE*iQr wfQ
notify Ute Sl»M of the M&MIII far
disapproval and of any revisiona e*
modificaliont to the State program
which ore necBasiffy to D basis
The Artnmtai Bdbnfiid aay be
reviewed by 1h» prrisfe frifm ftOO am "to
4:W) pm. Monday thnmjh Priday,
exduifing h^tidari at the Department of
Pollution Control and Eco^og^.
Netiwiel Brtvtt, Littie Reck.
7220ft or «t &e EPA i->irt«i
»tat«njent9 and doctunmta, ihsJSt
becoaM a part of tha record saboiU tad to
the Admiaicteatoc, aad
[7] Tt»
open untO OdaL*r Q. Iflflfl, aa
below, to permit any p««™ loaabmit
any additional wilUaB ttatama&U or to
p re »en I vioiwi a? eTidaaca taaifitej
rebut \f*tu*a»y pmmntml al lia
Immedlataly foilowiag tha publk
comment pariod, the Regional
Admikutfalor ^all {anwani a copy -of
the otaapiota Warm| raoofd to the
Adntiaiatratar.
Heahog »tat«*»M)ti may be oral «f
wrlttan, Wbttsa copwj of orffii
•tateainto are uzfed SOT *ooar*cy «f the
record and for the u*e of the hearing
panal uui otfaw kitenetod pnewwit
Statemantt m>tfwtU *i
by EPA. Region VL by Octob«f *.:
or preMnted ml tfae patiMc iMadqt. x^tl
be consider*! by EPA before t»iaaf
final action cm t^0 AAaam* Reqoatt for
State Pragcaan Afprovai
Piease bring tfaa fategoma; to the
attention of [&LMMIM wknm ymi kaw
will b* iaMBraatari »tfa» awtt«. AH
written comneMa nd qaeatu»i OH tbe
hearing, a thn NPD£S pra*naa, sboakl
Permits laguaacai 8*cbc«
Renaissance Toww, i^CT R\m
Dallae. Texn. 7S£% Attemiaa: £iaaa
Caldwdi.
Review
and
Regulatory FUsflrflBy Ac!
Qrdar 12291
Under tb« Ke^oktorf Ftewbita? Act.
EPA is required to pnpaea a RafdkaaarT
Bejoijiiky Aralyva fer aJI ru*a> wte*
may b*v» a cipttficant ta^ant fin a
tubrtaatiai aaia^ar af aaaaU mubMm. The
propoiad apprvivlof tte Arioaiaa)
NPOES prograai dM« aot mtav law
category. N» aaav mabttmltn
action*
not have a
•uottantial
ox a
— **•• a
needed.
baa ramptatf (kisraia feoaa law
requiietmailt of »• rttan 1 «f
Order-UBK.
D«t*d; AufsuttlZ 1006,
VI
[FR Doc. ee-BRBD Hlad 8~»-Mi «t« on]
Agency (EPA).
ACTIOMi
that
formaldehyde i
salts, be exKoptod fro« tfaa i
of a lokermasm whan na«d ac a
diapersing-wstting agent In flowable
peeticxdal fuimiili(ii'ff» aaapapywd ta dap
vat operation* fv tax§* aaiaaaia. »adi aw
cattax Thai prapoawd Mgaialvaa
requeneed by
Inc.
WrfttBB comnvnt>, WunUfiwi by
the document control nnmbw ffitft-
300142], must be received on or before
September 78, 1986,
By meJi. mtartt
M&na
, Offi« of Peatklda
Progr
-------
Federal fcegfster / VoL 4a No. 195 / Thursday, October 6, 1953 / Notices
4S597 V
guideline (CTGTf document tor control of
volatile organic compounds emieiionsr"
frorr '-rilatile organic storage in floating
-n i roof tanks. EPA received
^ _, to extend the public comment
period far the draft CTG because "• '
printing of the document was delayed.
The comment period was extended. •
Jierefore, in order to provide adequate
time for public review,
DATE: The comment period Is extended
to October 27, 19S3.
*ii£riE££E3: Cc.T.m^r.:;. *huuiil IM.
submitted, in duplicate if possible, to the
Emission Standard* andEngiaeecmg ..
Division (MD— 13), Environmental
protection Agency, Research Triangle
Park. North Carolina 27711. Attention;
Mr. Jams* Durham, on or before October
27, 1981 Comment* wilt be -available for
public inspection an copying between
8:30 a.m. and *:00 pjxt., Monday through
Friday at the Chemicals and Petroleum
Branch, Room. 730. Emnrekm Standards
and Engineering Division,
Environmental Protection Agency. 411
West Chapel Hill Street Durham, North
Carolina.
Copies of the draft CTC document
may be obtained by contacting the
Environmental Research Library [MD-
35] (919) 511-2777, Environmental
Protection Agency. Research Trio ngte
ParV North Caroftna 27711. Please refer
*-> leline Series — Control of
A Organic Compounds Emissiojis
irom Volatile Organic Liquid StorageTn
Floating and Fixed Roof Tanks."
FOB FURTHER INFORMATION CONTACT
Mr. James Durham (919)541-5671.
Chemicals and Petroleum Branch (MD-
13), Emission Standards and Engineering
Division. Environmental Protection
Agency. Research Triangle Park. North
Carolina 27711.
Dated: September 27, 1983.
Ac i / ,ij A ssiftcn t A dm in /srro tor for A rr. .
nnd Kadi ot to n .
\\ h Our. &VJ7131 F:[
CODE BStO-iO-i!
IOPTS-S1485;TSH-FRL243»-5]
Premanulacture Notices- Certain
Chemicals
Correction
Jr. FR Doc. 63-26022. beginning on
page 43397, in the issue of Friday.
September 23.1983, on page 43400. in the
liiirrj column tn "PMN 83-1248". lines
five six. and seven should be removed:
'' 'N 83-1247" in the second line
,a" should read "maieate".
[Wr4-FRL-244a-*]- ;-:• , ' .rv, -;.,-,•.-.-;> :-
Approval of Kantucky's NPDES
Program ._..-...-
AG£WCY: Environments I Protection
Agency- ; „ '
ACTION: Notice of approval of the
Commonwealth of Kentucky's
application to participate in the national
pollutant elimination system fNPDES)
program, . . ....'-
SUMMARY; On September 30.1863; the
Adni!Ti£tra.lcifci thc.Ejiv!r2!i£^sl3l.. ..
Protection Agency fEPA) approved the
Commonwealth, of Kentucky's reqnesi to
administer the National Discharge
Elimination System. (NPDES J program
within the State.
FOR FURTHER INFORMATION CONTACT:
Allen Danzig, Permit* Division {EN-336},
U.S. Environmental Protection Agency,
401 M Street, S,W. Washington, D.C.
20400.202-7 55-0750.
suPPt-EMewTAHT INFORMATION: The
Clean Water Act [33 U.S.C. 1251. et req.J
established the National Pollutant
Discharge Elimination System (NPDES)
under which, permits are issued for the
discharge of pollutants from point
sources into the waters of the United
States. Initially, the Environmental
Protection Agency (EPA) issues, these
permits. States may be authorized to
administer the- NPDES program for
discharges into navigable waters within
their jurisdiction if the Administrator of
EPA determines that the State program
satisfies the requirement* of section
402(b) of the Clean Water Act. Witia the
passage of the 1977 amendments to the
Clean Water Act. State NPDES program
must include a pretreatment program
and the authority to regulate Federal
facilities. On July 20,1983, EPA
published notice of Kentucky's request
to administer the NPDES program m the-
Federal Regiitoi [48 FR 33021). Public
hearings were herd on August 23 and 25,
1583, in Chvensboro and Lexington,
Kentucky respectively, to solicit
comments on the proposed authorization
of the Kentucky program.
During the public comment period,
EPA received 42 comments. Seven
commenters representing industrial or
commercial interests, favored approval
of the NPDES program while 35
commenter*. representing citizen arrd
environmental groups, opposed
approval. Those favoring approval
stated thai Kentucky met the
requirements for approval and that the
Commonwealth was the most
appropriate level of government to
administer the program. The opposing
commenters stated that the
Commonwealth had'a poof performance
in enforcing State waslewater violations
and other State regulatory-programs,
ead had inadequate resources and
funding. Some ol these commerrters also
stated cOTcemi with State
admiais (ration oJ coal mining activities.
EPA bas prepared specific responses to
public comments which have been
incorporated into. Kentucky'» suhmjttal
package and may be reviewed by the
public at the Kentucky Natural
Resources and Environmental Protection
Cabinet. Frankfort Kentucky 40601, or
Agency, Region IV. Water Management
DiTision. 345 Courtiond Street N.E..
Atlanta. Georgia, 3G3S5 fiom SrOO a.m. to
4£Q P-HL, Monday through Frixlay.
erxchiding holidays. In response to me
public comments, and upon EPA'»
reqrrest, Kentucky made several changes
to ila program submission. These
changes are identified in EPA'» response
to comments. Further, in responaa to
EPA and public concerns' about
Kentucky's regulation of cool mining
activities, the NREPC has sUted in •
letter to EPA, that State law does not
prohibit issuance of the final coal mining
general permit according to the terma of
the draft general permit, and that it has
committed to issuing a final coal mining
general permit as ejcpeditioualy^aa
practicable.
While I have determined thai
Kentucky has a sufficient NPDES
program, EPA wiU closely review
Kentucky's implementation of the
NPDES program to ensure that the
Commonwealth adhere* to it* funding,
enforcement, artd coal mining regulation
commitments. EPA wilJ conduct a formal
audit of the Kentucky NPDES program
after one year of the Commonwealth's
administration of the program. During
the audit EPA will solicit public
comments on State program
administration. If EPA determines that
the Commonwealth no longer meets
NPDES program requirements. EPA will
commence program withdrawal
proceedings under Section 402 of the
Clean Water Ac! and 40 CFR Part 123.
Today's Federal Register notice is to
announce the approval of the
Commonwealth of Kentucky's NPDES
program, including its pretreatment
program and Federal facilities authority,
"Federal Register" Notice of Approval of
State NPDES Program or Modification
Under the NPDES Permit Regulation
(48 FR 14146, Apn) 1, 1983), EPA will
provide Federal Register notice of
actions by the Agency approving or
modifying a State NPDES program. The
following table will provide the public
with an up-to-date list of the status of
N"PDES permitting (authority throughout
-------
43S9®
Federal Register /'Vol. 46. No. 195 /Thursday, October e, 1963'/ Notices
' Aprrcvsd
$(*(•
NPOSS
WIt/Tt
1/27/7$
wmm
4/1 /M
V/M/74
10/23/77
., .1/1/79
S/10/71
8/5/7*
wnm
*/*J/74
g/1/74
10/30/7*
•/18/74
•/It/?*.
. 4/19/8Z
W/28/7J
10/1B/7S
e/13/rs
i/SW/T3
• e/30/71
e/io/TS
12/2S/7T
3/11/74
d/SOffif
1/91/79
11/14/71
9/10/03
1/4/74
1/»/7I
mntm
j/sm
1WSO
8/1/79
a/io/re
.. 3.TC.TT
12/ft/TS
1 /SB/83
' MM/TV
6/33/S1
I/31/TS
«-4/13/8»
•/I3/40
3/1/7?
.S/10/U
San —
o/lf m
•/tj/sa
4/14/tJ
1/12/lt
4/ft/Bff
»/ie/»3
3/18/82
£/ 10^*2
.12/24/M
Rewlew Uudiur thm Riguktory Flwubility
Act aed Executive Ordur 12291
Under the Regulatory Flexibility Act,
EPA is required to prepare « Regulatory
Flexibility Analysis lor all rules which
may have significant impact on tt
substantial number of small entities. The-
approval of the Kentucky NTPDES permit
program merely transfer* responsibility
for admwistration of permitting facilities
from ttaPederal to tht State
government No new substantive
requirements an established by this
action. Therefore, thia notice does not
affect a significant number of small
entities. It does not trigger !he v
requirement of a Regulatory Flexibility
AnsSyils,
The Office of Management and Budget
has exempted this rule from tha
recjuireintats of Section 3 of Exaculive
Order 12291,, . '. / _' ;.. ' . " .
Dated Stptambw W, 1S83.
WUlta» D, Rudwbhau*. '
AdministmiOF.
[PR DMC m*3?m* niad 10-9-4% KM «aj
BILUKO COOC
EQUAL, EMPLOYMENT OPPORTUNITY
COMMISSION
Agency Report Forma Under OMB
Review
AGINCV: Equal Employment Opportunity
Commission.
• ACTION; Request for comments,^".; °- •••"•tv*';
SUMHAHV: Under the provistani of the,
Paperwork Reduction Act (44 U.S.C,
Chapter 35]..agencie9 are requirid to
Bubmit proposed inlornjatioii colliction
requests to OMB for review mad
approval, and to publish a notice in the
Federal lagister notifying the public that
the agency has made auch a submission,
The proposed report form under review
la Liated below. • '•--• .- i -.:-,.. •
OATI: Comments must be received on or
before November 21,1983. If you
anticipate commenting on ft report form
but find that time to prepare will prevent
you from submitting comments
promptly, you should adviat the OMB'
Reviewer and the Agency Liaison - ••-"''
Officer of your intent as early ss " •• -^-'
possible. •• •, • - •'•'
ADDM9A: Copies of the proposed report
fora, the request for clearance (S.F. 63),
supporting statement and other .
documents submitted to OMB for review
may be obtained from tha Agency
Liaison Officer. ConWMiits on the Item
listed should be submitted lo the Agtncy
Officer and the OMB Reviewer,
POD PUKTHln INFORMATION CONTACT:
EEOC Agency Liaison Officer Guy C,
Papritz, Administrative Manifiaint
Services, Room 2fll, 2401E Street, NW.,
Washington, D.C, 20506; Telephont (202J
334-6990.
OMB Reviewer Joseph Lackey, Office
of Information and Regulatory Affalrt,
Office of Management and Budget.
Room 320a New Executive Office
Building, Washington, D.C, 20503;
Telephone (202) 39^-6880. -• . .
*- Type of RequeatExteation; (Ko--
change.) .-:•-•--•
Title: Elementary -Secondary Stafl
Information (EEO-S), • ,
Form Numben EEOC Form IMA and '
• ',
Frequency of Report: Biannuallj
Type of Respondent: Public
elementary and secondary *diool
districts,
Reponsea: 83,500.
Reporting Hours: 41Z500.
Federef Cc«!*r «69,000.0(>.
Number of FO«M: 2.
Abstract-— Needs/Use* EEQ-5 data U_
used by the Equal Employment
Opportunity Commission to investigate •'-
charges of employment dLscrimiaation •*
agaiast pubUc elementary and
secondary school district*. The data i»
used to support EEOC decisions sad
conciliations, and in systemic program
activities. Data i* shared with other ^
Federal Agencies and State and Local
Fair Employment Practices Commissions
(FEPCs) at required by law.
Dated: S^ptemtor 2S. 1983,
For th* CommiMton.
Chairman. Eq iml Employment Opportunity
Commission. •
ffH E>«. B-3S3JO n*t
PCUJW COOK WW-8MI
FEDERAL COMMUNICATIONS
COMMISSION
Applieatlona tor Consolidated He«ring
1. The Commission has before it tha
following mutually exclusive , T
applications for a new FM station:
*****
D Dnoan Commuman
(1 ewMrt 0> Mwnwt-
O. Portftoji
xm. tnc..
.ww&l'B
BPMCZDWBAO^
CCCM!
We. -.
13-M9
2. Pursuant to Section 309(e) of th*
Conunuiiicationa Acl of 1834, aa
amended, the above applications have
designated for bearing in a
consolidated procnedinf upon Istues
whose hesdingi «» set forth below. The
text of each of these ijjues has been
standardized and is set forth in it»
entirety in a sample standardized
Hearing Designation Order (HDO)
which can be found at 48 FR 22428, May
18,1983. The issue headings shown
below correspond to issue headings
contained in the referenced sample
HDO. The letter shown before each
applicant's name, above, is used below
to iignify whether the issue in question-
applies to that particular applicant.
/»«£/« Heading, and Applicants) :_
1. (See Appendix], B
2. Air Hazard. C D ' :.
3, Compare ttv«, A. B. C D
4. Ultimate, A, B, C, D
3. If there is any non-standardized
issue(s) in this proceeding, the full text
of the issue and the applieant(s) to
which It applies arc set forth in an
Appendix to this Notice. A copy of lh
complete HDO to thin proceeding m
be obtained, by written or telephone
request, from the Mass Media Bureau's
-------
ENVIRONMENTAL PROTECTION AGENCY
NEBRASKA PRETREATMENT PROGRAM APPROVAL
AGENCY: EPA
ACTION: Notice of Approval of the National Pollutant Discharge
Elimination System Pretreatment Program of the State of Nebraska.
SUMMARY: On (date of the Administrator's signature), the
Environmental Protection Agency approved the State of Nebraska's
National Pollutant Discharge Elimination System State Pretreatment
Program. This action authorizes the State of Nebraska to
administer the National Pretreatment Program as it applies to
municipalities and industries within the State.
FOR FURTHER INFORMATION CONTACT: David A. Greenburg, Permits
Division (EN-336), U.S. Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460, (202) 426-7035.
SUPPLEMENTARY INFORMATION:
Background ,
The Pretreatment Program, required by the Clean Water
Act of 1977, governs the control Of industrial wastes introduced
into Publicly Owned Treatment Works (POTWs). The objectives
of the Pretreatment Program are to: (1) prevent introduction
of pollutants into POTWs which will interfere with the
'operation of a POTW, including interference with its use or
disposal of municipal sludge; (2) prevent the introduction of
pollutants into POTWs which will pass through treatment works
or otherwise be incompatible with such works; and (3) improve
opportunities to recycle and reclaim municipal and industrial
wastewaters and sludge. Local pretreatment programs will be
the primary vehicle for administering, applying and enforcing
-------
pretreatment standards far industrial users of POTWs. To
receive pretreatment program approval, a State must submit to
the EPA a modification to its NPDES program pursuant to the
requirements and procedures of the General Pretreatment
Regulation (40 CFR Part 403).
In support of its application for pretreatment program
approval, the State of Nebraska has submitted to EPA copies of
the relevant statutes and regulations. The State has also
submitted a statement by the Attorney General certifying, with
appropriate citations to the statutes and regulations, that the
State has adequate legal authority to administer the State
pretreatment program as required by 40 CFR Part 403. EPA has
concluded, upon reviewing all of these submitted materials, that
the State has adequate legal authority to administer the
pretreatment program, including the authority to perform each
of the activities set forth in 40 CFR §403 .10(f } (1) {i ) - (vi).
4
The State does not have any provisions for granting removal
credits (§403.10(f)(1)(vii}), based on its desire to be more
stringent than the Federal program *nd not crant removal credits.
The State is authorized to adopt this more stringent approach
by Section 510 of the Clean Water Act.
The State of Nebraska has also submitted to EPA a program
description and a set of sample forms. The program description
sets forth the number of POTWs and industrial users subject to
the program; the priorities and procedures for issuing State
permits to implement the applicable pretreatment requirements;
sampling and analysis procedures; enforcement procedures; and
a description of the resources to be dedicated to the program.
-------
The sample forms indicate the information to be collected from
industrial users of POTWs, including industrial waste surveys
and permit applications; permits; and monitoring and non-
compliance reports. Based upon this information, EPA has
concluded that the State will have the necessary procedures
and resources, including the procedures and resources listed
listed in 40 CFR §403 .10(f)(2 ) and (3), to administer the
pretreatment program. This conclusion is supported not only
by a review of the State's program description and forms but
also is buttressed by Nebraska's experience in administering
its approved NPDES program.
Federal Register Notice of Approval of State NPDES Programs
or Modifications
EPA will provide Federal Register; notice of any action
by the Agency approving or modifying a State NPDES program.
The following table will provide the public with an up-to-
date list of the status of NPDES permitting authority throughout
the country.
Alabama
Cal i f ornia
Colorado
Connect icut
Delaware
Georgia
Hawai i
1 11 i nois
Indiana
Iowa
V a r1 c p <=
Approved
NPDES permit
program
10/19/79
05/14/73
03/27/75
09/26/73
04/01/74
06/28/74
11/28/74
10/23/77
01/01/75
08/10/78
O £ /-) p /-! ;
Approved to
regulate Federal
f ac il i ties
10/19/79
05/05/78
—
—
__
12/08/80
06/01/79
09/20/79
12/09/78
08/10/78
—
Approved State
pretreatment
program
10/19/79
—
—
06/03/81
--
03/12/81
08/12/83
— .
— ,
06/03/81
—
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Kentucky
Maryland
Mi ch igan
Minnesota
Miss iss ipp i
Missouri
Montana
Nebraska
Nevada
New Jersey
New York
North Carolina
North Dakota
Ohio
Oregon
Pennsyl van i a
South Carolina
Tennessee
Vermont
Virgin Islands
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Approved State
NPDES permit
program
09/30/83
09/05/74
10/17/73
06/30/74
05/01/74
10/30/74
06/10/74
06/12/74
09/19/75
04/13/82
10/28/75
10/19/75
06/13/75
03/11/74
09/26/73
06/30/78
06/10/75
12/28/77
03/11/74
06/30/74
03/31/75
11/14/73
05/10/82
02/04/74
01/30/75
Approved to
regulate Federal
facilities
09/30/83
__
12/09/78
12/09/78
01/28/83
06/26/79
06/23/81
11/02/79 [date of
08/31/78
04/13/82
06/13/80
—
—
01/28/83
03/02/79
06/30/78
09/26/80
—
—
—
02/09/82
--
05/10/82
11/26/79
05/18/81
Approved 51
pretreatme
program
09/30/83
__
06/07/83
07/16/79
05/13/82
06/03/81
—
Admin, signat'
__
04/13/83
—
06/14/82
_-
07/27/83
03/12/81
_-
04/09/82
08/10/83
03/16/82
—
—
. —
05/10/82
12/24/80
__
Review Under Executive Order 12291 and the Regulatory
Flexibility Act
The Office of Management and Budget has exempted this
action from OMB review requirements of Executive Order 12291
pursuant to Section 8(b) of that Order.
Pursuant to Section 605(d) of, the Regulatory Flexibility
Act (5 U.S.C. §601 et sea. ) , I certify that this State
Pretreatment Program Approval will not have a significant
e
impact on a substantial number of small entities. Approval
o£ the Nebraska NPDES State Pretreatment Program establishes
-------
no new substantive requirements, but merely transfers
responsibility for administration of the program from EPA to
the State.
Date Administrator
-------
SUBJECT: ACTION MEMORANDUM: Approval of
NPDES Program
FROM:
TO:
Issue
, Director
Water Management-Division
Regional Administrator
Should the State of 's request for approval
to administer the National Pollutant Discharge Elimination
System '(NPDES) program under Section 4D2(b5 of the Clean Water
Act be approved by the United States Environmental Protection
Agency.
Discussion
Title 40 CFR Parts 123 and 403 establish requirements which
states must meet in order to receive approval from EPA to admin-
ister the NPDES program, including the authority to administer
and enforce permits regulating the discharge of pollutants into
waters of the United States within a State's jurisdiction and
regulate che inqirecc uiscnarge or pollutants :o
treatment works (POTWs).
In 1984, the State of enacted a comprehensive
water pollution statute which provided the Director of the ___^__
Department of Environmental Management (DEM) with the
authority to issue, administer and enforce National Pollutant
Discharge Elimination System (NPDES) permits for all point
sources discharges to the waters of the state. The statute also
provides DEM authority to enforce pretreatment requirements con-
sistent with 40 CFR Part 403. New regulations for implementation
of the NPDES permit and pretreatment programs were promulgated
by .
-------
~ 2 —
On June 18,
authority for
1984 , Governor
requested
to administer the NPDES program. A
completeness letter was sent to the State on July 2, 19XX.
The publi^ was notified in the July 11, 19XX, Federal_Register
(XX F.R. XXX) of the submittal, public comment period, oublic
hearing and codification of the State program approval. In
addition, notice was provided in the major newspaper in the
State on July 12, 19XX. The notices also stated that a public
hearing 'would be held in on August XX,
19XX and that all comments received through August XX, 19XX
would be considered on EPA's proposed action to approve the
program.
The public hearing was held as scheduled and no comments
were received at the hearing. There were no adverse public
comments received-1 during the public comment period. There
were no objections to the validity of EPA's procedures or to the
sufficiency of the State's authority to administer the NPDES
program. The responsiveness summary is attached to this memo.
The ninety-day period for approving or denying 's
program ends on September XX, 19XX.
Rec omme n d a t i o n
In view of the foregoing, my office recommmends that
you approve the State of
In order to approve you should:
by signing your name below; (2)
to Governor ; (3) sign the
Memorandum of Agreement; and
notice of program approval.
Approval
's permit program.
(1) indicate your decision
sign the approval letter
three cooies of the
(4) sign the Federal Register
date
Concurred with
date
I. M. Regional Administrator
Regional Administrator
Director
Office of Water Enforcement
and Permits
date
Associate General Counsel,
Water Division
-------
UNITED STATES ENV RONMENTAL, PROTECTION AGENCY
\ ^ WASHINGTON. D.C. 20^60
SEP 3 0 1383
THE ADMINISTRATOR
Honorable John Y. Brown
Governor of Kentucky
Frankfort, Kentucky' 40601
Dear Governor:
It is with pleasure that I am today approving the
Commonwealth of Kentucky's request to administer the National
Pollutant .Discharge Elimination System (NPDES) program.
Your State is the thirty-sixth to request and receive
approval for administration of this important program. I
have also approved the Memorandum of Agreement between the
Environmental Protection Agency (EPA) and the Commonwealth
reflecting this transfer (copy enclosed).
During the public comment period on the Commonwealth's
program request, several groups and individuals opposed program
approval. Their main concerns were with Kentucky's commitment
to fund and enforce its NPDES program, and to regulate NPDES
coal mining activities. While these concerns exist, I believe
the Commonwealth has dealt satisfactorily with them by
developing a good program submission and by committing to
expeditious action on a final general permit for coal mining.
Our Atlanta regional office will assist your Natural Resources
and Environmental Protection Cabinet as it goes through the
initial phases of implementing its permit program.
In addition, EPA will conduct a formal audit of the Kentucky
NPDES program after one year of the Commonwealth's administration
of the program. During the audit, EPA will solicit public
comments on State program administration.
-------
We look forward to working with you and the Natural
Resources and Environmental Protection Cabinet in continued
efforts toward the prevention and control of water pollution
in the Commonwealth of Kentucky.
Sincerely yours,
William D. Ruckelshaus
Enclosure
cct Jackie Swigart, Secretary
Kentucky Natural Resources and
Environmental Protection Cabinet
Charles Jeter
Regional Administrator
Region IV
-------
SEP 7 1S84
THE ADMINISTRATOR
Honorabl e Robert Kerrey
Governor of Nebraska
Lincoln, Nebraska 68509
Dear Governor:
It is with great pleasure that I am today approving the
State of Nebraska NPDSS ?r etrea tment Program in accordance with
the General Pretreatment Regulations for Existing and New Sources
of Pollution, 40 CFR Part 403.
Your State is the twentieth to request and receive approval
for administration of this important program. I congratulate
you and your staff for moving to assume administration of this
important environmental program.
we look forward to working with you and the Department of
Environmental Control in continued efforts toward the prevention
and control of water pollution in the State of Nebraska.
Sincerely ,
William D. Ruckelshaus
Enclosure
cc: Morris Kay
Regional Administrator, Region VII
Dennis Grams, Director
Nebraska Department of Environmental Control
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20*60
JAN' 9 13S4
MEMORANDUM
SUBJECT; Announcement of an Agency Policy on
State Program Approval Process
OFFICE OF
FROM: Alvin L. Aim
Deputy Administrator
TO: Assistant Administrators.
General Counsel
Regional Administrators
The purpose of this memo is to announce my decision on the
roles and responsibilities of E?A managers in the approval of
state programs. It also establishes new mechanisms to improve
the ability of these managers to carry out their responsibilities,
Decision Summary
essence, I have decided that Regional Administrators should
be held responsible for bringing about good, timely decisions
on state program approvals. The RAs will be the Agency's
representative in its negotiations with the states. They will
see that all major issues are resolved fairly and expeditiously,
"keep the clock" on time-limited Headquarters review of state
applications, and invoke an issue-resolution procedure on an
exceptions basis when major policy disagreements threaten to
delay the decision.
At the same time, the General Counsel, Assistant Administrator
for Enforcement and Compliance Monitoring, and the appropriate
Assistant Administrators will maintain their responsibility
for quality and national consistency. They 'Will be expected
to participate early and intensively with the Regions in the • '
review process, to identify major issues which require resolution
before an*application is approved, and to commit the necessary
•resources to the review effort to ensure that time limits^are
met. •
tt.
^ t
I am establishing a neutral "Decision-Brokering Process"- as
a mechanism to focus top management attention on those "few
cases where major issues are raised among Agency managers
ch cannot be resolved in z rrcscr.ibLc tirr,^. ~\.f ~s=>^^~a^<=
-,r, i r. i sera tc r fcr Regional Operations will serve as tne "broker"
f cr this tracess .•
-------
Let me be clear that by "good decisions" I mean those which are
the result of a forthright, timely, and fair review by EPA. Our
objective is to authorise proerams in those states which possess
the will, authority, and the capacity to implement them effectively,
In those cases where a stare application cannot be approved, the
Regional Administrator will spell out the reasons for the decision
to the state and the specific measures EPA can take to help
overcome the problems identified. I expect the Agency to make
firm, explicit commitments to the states on the actions EPA
will take to carry out our commitments in the state program
approval process.
I am confident that this combination of responsibilities and
issue resolution tools will improve the decision process, provide
clearer signals to the states, and encourage early elevation of
major policy questions to the attention of senior managers.
This decision is based on extensive study of the complex problems
involved in state program review and approval, and the various
laws within which we operate. It also takes into account your
comments on our previous proposals on this same subject. This
policy is fully consistent with the recommendations of the Task
Force on State/Federal Roles as well as those of the Task Toree
on Headquarters/Regional Relationships.
Implementation Stejps
To implement this action, I have signed an Agencywide policy
which establishes principles for all parts of the Agency which
authorize state programs. In addition, I have established the
decision-brokering process in the immediate office of the Admini-
strator to expedite top management decisions on issues which are
delaying our decisions on state programs. A copy of the policy
statement and a brief description of the decision-brokering
process are attached. . -....
I expect each Assistant Administrator whose program includes a •
state program approval process to take the actions listed in i.'1
Attachment C. Sam Schulhof will coordinate the implementation
of this new policy and will be responsible for operating the
deci£-ion-brokering process. I have asked Sam to provide you with
further clarification on both the policy and the process in a
separate implementation guidance package.
Attachments
-------
ATTACHMENT A
'"A ORDER
AGENCY POLICY ON
STATE PROGRAM APPROVAL PROCESS
^» PjJRPQjLEj This order establishes a set of principles which all
EPA Offices are expected to follow in preparing for the approval
o£ state programs.
2. APPLICABILITY; The policy and principles below apply to ell
EPA Offices which authorize state programs, and should be
incorporated as necessary into existing processes and procedures
along with any controls required to ensure compliance.
3.' POLICY: The Agency will provide a quality and expeditious
response to applications from states desiring to assume operating
responsibility for environmental programs. Authorities and
responsibilities of Agency managers-in the review and approval
process will be clearly defined. The decision-making process
will provide for timely identification, elevation, and resolution .
of issues on which there is internal disagreement. In negotiations
with a state preparing for assumption of program responsibilities,
EPA will clearly communicate the Agency's commitments to and.
-pectations of the state.
4. PRINCIPLES; In reviewing state programs for approval, EPA will;
a. E5tablish_cleardecision-making -authority and responsibility*
1) Regional Administrators will hsve authority to sign state
program approvals. (For those programs where the statute requires
the Administrator's signature, Regional Administrators will
have authority to recommend to the Administrator that they be
signed,)
2) The program Assistant Administrators, General Counsel, and
Assistant Administrator for Enforcement and Compliance Monitoring
will have authority to raise issues which must re resolved ^
prior to the signing of a state program approval. This Head- •'
quarters review authority may be waived.
3) The Regional Administrators are responsible for assuring
that a good, timely decision is made. This includes early
solicitation and considersticn of Headquarters concerns,^
elevation to top managers those issues upon which theze is
internal disacreement. .. >- ••••"-'..*
The Assistant Administrators enr P«=^o-»i prv..-«•
.cie for zrrcvicinc early irp^t i;~^ riinr.g ci."-; ct
specified time lireits.
b. A s s u re timely identification, elevetior._, and resolution
cf r, £ •< c r issues.
-------
— 2«~
') All senior managers are responsible -for assuring that
.i&rly consultation takes place between Regional and Headquarters
offices so that issues can be identified, resolved internally,
and communicated to the state as early as possible,
2} Regional Administrators will keep Headquarters Offices informed
on a regular basis of communications with the state and send a
copy to Headquarters Offices of all relevant correspondence,
33 Each program approval process will include .time limits for
completion of reviews by all Offices.
4) Regional Administrators are responsible for initiating the
time-limited review period for a state application.
5) In their response to the Regional Administrator on an
application, Assistant Administrators and the General Counsel
are responsible for distin_gui_shinQ_ between^ ma jor objections
which must be resolved prior to granting program approval and
othercommentswhicn may be considered advisory by the Regional
Administrator.
6) Assistant Administrators and the General Counsel are respon-
sible for assuring that time limits are met; the Regional
'Administrator is responsible for notifying the Administrator's
jffice when a Headquarters Office response is late,
7) Regional Administrators will normally be responsible for
submitting major unresolved issues to the Office of the
Administrator for resolution through the decision-brokering
process, but the Assistant Administrators and General Counsel
may also invoke the process,
c. _Negot_iat_e fairly_ with_ a_ state desiring to assume program
responsibi1i t ies.
1) Regional Administrators will speak for the Agency on approval'"
matters. • " ••
2) Regional Administrators will communicate clearly the Agency's
commitments to and expectations of the state, b-t they may not
make commitments regarding unresolved major objections raised
by Headquarters Offices. f
3) The Agency will honor commitments to and agreements made
with the state during each phase of the application process,
and will not raise new issues or re-open issues __resoived tearlier
unless there ere material changes in the state's application,
"nances in federal statutory cr regulatory requirements, or
'•> g •** e. \_ 5 jTi'j 7 u 3 i sere i?tr,cr n t t ^ ~ z. •***•"• "<•"• ~"-" **^"~ ~ ~ -"* *.'"»— - ;_ — •. —
4) When a state application is not approvedf the Regional
Administrator will provide a written explanation of the decision
and will spell out the specific measures EPA car. take to help.
overcome the problems identified.
-------
ATTACHMENT B
A Summary of the Decision-Brokering Process
As Applied To State Program Approvals
AOSE
in
offices
of final state prog
arrive at an EPA decision to approve a State program application
its draft or final form when there is disagreement between EPA
Decision-Brokering may be used before and after submission
ram applications. Used during early negotiations,
this mechanism can be used to obtain top management decisions on major
issues which might slow the decision process at a later time. If
invoked after submission of a formal application, decision-brokering
guarantees either (a) an agreement to approve the State program, or
(b) an 'agreement to not approve along with a plan detailing what the
State must do to qualify for approval, and assigning responsibilities
within EPA for working with the State to achieve the needed changes.
This. "Decision-Brokering Process" provides for a neutral Process
Manager who will serve as a mediator to either help negotiate an
agreement or to clearly articulate the issues to the Administrator/
Deputy Administrator for a decision. .The Process Manager, or "broker*,
will not recommend a decision but will remain neutral. If at any
point the parties reach agreement, the Process Manager is notified
•and the process stops.
PROCESS
(!) Time-Limited Review Period.
Time-Limited
Revi ew
Period
(30 days
or less)
Decision-
Brokering
Phase
(30 days
or less)
Agency cec'ision on
whether to approve
?rocram
RA submits
for ECM,
review package to Program AA, AA
and OGC. HQ has specified period to review
and issue objections. Objections are sent to
RA with courtesy copies to other reviewers.
If major objections cannot be resolved, any
party can invoke Decision-Brokering Process.
DB Process Phase.
_^^ D3 process manager
parties to understand the
nature of the disagreement. If/
meets with
issues and
once differences are clearly articulated,'
there is no agreement, 33 process manager
prepares briefing for Az^.inistrator/Deputy
Administrator on the problems, alternative
solutions, and their likely conseguences.
(3} Issue Raised to Administrator/Deputy
A_c ministrator. •DB process manager presents
decision briefing to Administrator or Deputy
Ac~in: strator with AAs a.nc R^ nresent.
(4) Pol l^gwuo. If yeSr then approval granted.
If no, then HA provides State written rationale
for decision ar.c offers specific measures EPA
can take to help State overcome problems.
-------
ATTACHMENT C
Action Items for Assistant Administrators
on State Prograir, Approval Policv
1. Supply to Sam Schulhof within the next week the name of a
contact in your office who will be responsible for imple-
mentation of this policy, • A planning meeting will then
be scheduled to discuss how this policy will be implemented
in each office affected,
2. Submit an action plan to Sam Schulhof within 2 weeks of
the planning meeting which specifies the steps to be
taken and when each of these items will be accomplished
(key components of this plan will be tracked in the Action.
Tracking System).
3. Establish? in consultation with the Regional Administrators,
a specified time limit for HO review which conforms to
the individual needs of each state program approval process.
4. Identify specific points in the review process where
the Decision-Brokering Process could be invoked' with
minimum disruption to the overall process,
5, Revise Delegation of Authority Manual where necessary to*.
a. Delegate to RAs authority to sign state program
approvals {authority to propose state program approvals
in the case of OIC);
b. Reserve authority for the General Counsel, the Assistant
Administrator for OSCM, and the appropriate program AA
to raise issues which must be resolved prior to signing,. .
an approval?
c. Allow for Headquarters waiver of review authority' {e.g.,
in the case of Construction Grants and certain classes
of state program revisions)? and
s*
d. Specify the length of the HQ review period within which
issues must be raised. , >
6. Ensure that adequate guidance and written-procedures are
available to recions and states which reflect this decision.
-------
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-------
At the same time, EPA retains its'national leadership
in protecting the environment, and we will continue to pursue
that task in the tradition of excellence we have all worked so
hard to build. We will do this because, notwithstanding the
increasing prominence of States as front-line providers cf
environmental protection, EPA is ultimately responsible and
Accountable tc the President, Congress and the American pecole
to ensure the integrity anc success cf national environmental
c. r", s under F'edersl law.
Making good this guarantee of environmental quality is my
highest coal as Administrator. In the eighties, a major strat-
egy for achieving this goal is to foster complementary anc=
mutually supportive roles for States and EPA. If we are all
to succeed, EPA must prove an effective partner to States in
the responsibilities *-e shar*. Because we have differing
positions and opportunities, each partner can and must ~ake s
unique contribution in those areas where it is situated to
be most effective. While this has been said before, we must
now cc beyond the level cf rhetoric, ana a 11 oca-e cur work
practically 2 n c efficiently.
we K;ust Aoolv N'ev Principles for a Stronger State-EPA
_Partnership.
I endorse the findings of the State-Feoera1 Roles Task
force-, which has developed a framework cf principles for
St£.te-L?A relations. Keeping in -inc that our attitudes as
well as our actions will determine the effectiveness of our
- partnership, I want these principles to characterize all of
cur dealings with the States.
° '"Je eac^ h a v e ^ajXJ5-" e ~ t i_a - ' kut different rcle_to clay.
under r-e iegatToTT, States are assunT:nc try* lead roTe
•for direct program acrrii nistra t i on and enf orceinent.
This nteans that States must interpret and apply national
standards through cay-to-day, program actions and
program o: compliance .anc enzorcenent.
account for their work--a no tc ailcw EPA to report
to-the Congress anc the President on t~e results of our
national invest^ent--States must report accurately
on progress, meet commitments en "he use of federal
funds, and -sir-tain high standards of program quality
that stand up to both peer and public review.
EPA's role is both to lead anc support the nation's
~ e t'-' o r k for e n v i r c r - e r. t a 1 ~rctectio~. '^ e '-'ill do this
H- ^ «"' *• " £ I*. -. — r f^. f, £ *-* Jf- TD'^L. ^.^,^.*Vr^.TO.^
^" ~ " " ^ ^ 'J C C ^ c c C "" 1 •"- P3 S 8 H "^ C C V1 c "~ S '*•""",'£ r €
-------
field" means our own Regional Offices. Increasingly,
however, "supporting the field" means providing the
neans for excellence in State programs through national
program development, standard setting, research, tech-
nical and management support, information collection,
anc re view and evaluation.
EPA retains the capability to reinforce or--when neces-
sary under conditions discussed with States in advance--
act in place of States to discharge essential program
functionSr particularly those affecting enforcement.
while delegated states have primary responsibility for
compliance anc enforcement, E?A cannot abdicate its
responsibilities to Ccngress to- ensure that national
goals and objectives = re met. E?A expects delegated
States to conduct strong compliance and enforcement
programs. If a State is cleer.lv unable or' unwilling
to maintain a sxro_n_c_ _injLo_r_£e_n£_nt _p_resence," SPA will
taXe appropriate i nde pen dent _en_f_cr_c erne nt ac.ti.on/ but
not without advance notification of the State and not
in an arbitrary or random manner.
o E ? A ' s jpo 1 i c i e s j=_nc r e cu 1 at j_g n s ITU: s t reflect not on 1 y
pe r ce i vec _ n_a t_ional needs, but also tne 1st i_tuce jtates
m: c n t r e c_',j_i_r e to perform tne e s s oc :•_£ t e c work. Our rcie
includes not only Drc-cd leaders nip c: tne national
environmental program, but also detailed consideration
of what 'it taXes to succeed on a daily basis across
hichly varied local situations and institutions. To
this end, and to the extent allowed by law, the Agency
• will seek more frequent and substantive involvement
of States as it develops program design, policies,
and reoula t ions ..
o EPA must modify its wey of. coin_g_ bus i_rLess_ y i th States.
Among other things we must:
- Drcvice States with a clear understanding of our
expectations with regard to what constitutes a
c u a i i t v environmental program a.t e r delegation;
= = E c- j r t £ c r. T i ~ a 1 , e c m i n i s t r i 11'-' £ , =.nc _ec = _
- i n z r e £ s e c •_• r c a p a c :: y t o mo " 11 c r
c t a i - r r - r r c ~. s i sszsciallv '-'. '- '• r e c £ r c 10 c n a r. ~ i n c
-------
o £?A r.ust revise its ooncejpt _cf _proer£r. cversiqjrt: to
err-.'phas_i 2e_ const r u c t i v e si:pp_o_rt of csTecatec~StTte s .
Since our role includes the duty to provide States the
means of success, oversight roust be seen as a principal
way to define needs and organize a quick, effective
response. Ve must maintain credibility both with States
operating in the field and with the public generally.
We GO this by providing support to States to help solve
problems as they emerge, and by undertaking strong,
viceroys procrara action when States are unable (cr unwill
ing) to discharge their "full responsibility under the law
The De i e cat i en _£_nd Qve_rs_ight. Policies Provide a ~ou neat ion ,
But Mj'jch Remains to__p& Done.
•We have already begun the process cf transformation of cur
working relationships with the States by issuing a mere detailed
policy en the mechanics of the State program approval process
in order to expedite sound Agency decision-matins on State dele-
cation applications, I a™ now taking the next step of issuing,
in' tance~, the attached delegation and oversight policies,
These f-c policies embody and expand on the principles discussed
earlier. Together they provide a balanced approach to a workable
'State-E?A partnership for more effective and efficient environment*
protection. The policies are also being sent directly to all•
State environmental directors. I am enclosing a cepy of the
transmittal letter to them, which discusses the importance of
the Dclicies and explains ;ny approach to cooperative Federal-State
compliance and enforcement efforts curing the near-term transition
period and fcr the Icncer term.
The skilled and dedicated pecple at work here in S?A are
paramount among the resources the Agency must apply to ir.ake the
entire system cf environmental protection work better in solving
the problems of the eighties. There is an enerncus amount of work
to be dene, and 1 am sure that we will continue to earn our reputa-
tion as one cf the most progress ive ' crgani za t ions in.,government in
•-eet inc~ t hi-s-challenge . If we • are "tc ' be at the forefront cf tech-
nological end management innovation, as we must, we will need, to
•focus all cf our creative energy and- c orrur.it me nt on the task. : an
confident we have the know lee oe and the will to- get the job done.
As we carry out these policies, I expect not only your
suzocrtr but also your active contribution. The principles
out"forth by the State-Federal "Roles Task Force, and expanded
u~en in the" ce lee i t i en a-c oversight policies, are co-pel ling
-° ** **" ••"• . ^ J^ i k. v «* «r ' ' + V» Cl-wii^^-..ii V^..^i^ F^ia 1^. , . W * W *** a. _^4_._.v- v^- ^- - ' I»T
•j c c-e s £ ^ u i . ".". •-;.„_ t c z r. ~~ p r c'.' i c i r. g you ~ .
e - i & r ? ^ • i r V !
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your con-Tii t merit, experience/ and ingenuity—qualities that
have always set EPA staff apart a.s da elite corps among Feceril
worke rs,
rilliam D. Ruckelshius
Attachments:
r>slec£tior! Policy
Oversight Policy
1/e.tter tc St£te Zr.vi
r oriental Directors-
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:?A POLICY CONCERNING DELEGATION
TO STATE AND LOCAL
employees.as they participate in making the many individual
decisions that affect future delegations tc states. This
statement cannot, by itself, settle all issues surrounding
delegation approvals, many cf which are complex matters of law
and interpretation. However, it does identify the general
approach which the Acer, cy will take in resolving such issues.
Teoeral environmental programs were designed" by Congress
tc be administered at the state and local levels vherever
possible. The clear intent cf this design is to use the
strengths cf federal, state, a'ni local governments in a
partnership tc protect public health and the nation's air,
water, and land. State and local cove rrjT«ents are expectec
tc assume primary responsibility for the i-.p lenient ation of
national programs, while Z?A is to provide national environ-
mental leadership, cevelop general program frameworks, establish
standards as required by the legislation, conduct research and
national information collection, assist states in preparing to
assume responsibility for program operations, provide technical
support to states in maintaining high quality programs, and
ensure national compliance vith environmental quality standards.
EPA ' s policy has been to transfer the administration cf
national programs tc state and local governments to the fullest
extent possible, consistent with statutory intent anc eood
management practice. With continuing advances in state anc
local capabilities to administer expanding environmental programs,
it is less and less appropriate for E?A to "continue to directly
carry -cut- cay-to-day • cper at icns: which cverlap -state- a rrc local'"
activities. Of course, difficult ar.c emerging environmental
issues remain, such as toxics and acic rain, -hich must be
adequately addressed and translated by EPA into'operational
or05rams that can be delegated to states. But as a general
ao^rcach, EPA recognises, as die Congress, the ^iscorn of state
a "no local management cf cay-to-day operations. Delegation cf
responsibilities to state end local governments is m.ore than s,
m.eans to avcic duplication in the provision cf government services
7t is also .a r, cppcrtuni-y to return c's c i E icn~m= V : ng authority to
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-2-
SCOPE AND DEFINITION
Delegation of environmental programs has the same meaning
as "authorization" or "approval": the assumption by a competent
and willing state or local government of operational responsibi-
lities which, in the absence of such action, would rest with the
federal government. Since delegation usually involves state
governments, most cf the discussion in this statement refers to
states. However, in the few cases of delegation to local
governments, as in the air program, references'to states will
eoDlv to local Governments as well.
RESPONSIBILITIES UNDEH DELEGATION
The relationship between EPA end the states under delegation
is intended to be a partnership. Both EPA and the states have
continuing roles anc responsibilities under delegated oroc rams
tnat are most effectively planned and executed together. States
are best placed to address specific problems as they arise on a
day-to-day basis, and EPA should strive to strengthen and assist
'state programs.
EPA remains responsible and accountable to the President,
Congress and the puilic fcr progress toward meeting national
environmental goals and statutes, including assurance that these
lews are adequately enforced. Thus, EPA's policy to delegate
management responsibilities fcr environmental programs to
state and local agencies carries with it a corresponding EPA
responsibility to oversee the conduct of delegated environmental
programs under federal statute. EPA will work with states
to develop and maintain high quality environmental programs
and to ensure progress toward environmental results. States,
in assuming delegation, accept responsibility for operating
strong state_programs _wh_ich support national statutory, goals,
and for reporting to EPA information necessary" "for assessing '
the progress_of programs nationwide. The specifics of post-
delegation responsibilities and EPA's oversight approach are
detailed in a companion oversight policy issued in conjunction
wiir. this delegation policy.
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est a -. c h i c h e s t
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priority. Delegation requests will be deferred only
when 2 state or local agency clearly lacks the legal-
authority or. technical capability for progrsrr, assumption.
When these requirements are met, EPA will assume that the
state tan implement a sound environmental program in
vhich the state makes independent decisions within the
bounds of national interest and consistency.
2 ) Provide Direct Help in Deve1 opinc £t_ate Programs
Where a state or local agency is interested in or is
moving to achieve delegation but lacks t,he authcritv cr'
technical capacity to assume a celeccDie program, E?A will
work with, states to provide direct support and assistance.
.Tcp EPA menacers will meet on a regular basis with
their state counterparts tc assess procress and identify
and resolve problems before stare program applications
reach the final review and approval process. In particular,
it is important for £?A counsel to cooperate with state
attorneys cenerai in assessing the adequacy of state
authority anc any chances that might be necessary. Early
and active direct invcivement will help E?A understand-
state concerns with federal programs and assist both
parties in reaching mutually agreeable resolution of
differences.
3) Revise Peculations As_Keecec To Eliminate Unnecessary
Obstacles to Dslee at ion
Existing EPA regulations ir.sy, in seme cases, unnecessarily
impede delegation. The program offices, in consultation
with the regions and states, will examine existing £?A
r ecu let ions to determine vhere unnecessary impediraen-ts
to • oeleggtion exist. Ones problens are identified,
prccra." offices will propose and aggressively pursue
regulatory improvements vhich will allow greater flexibility,
consistent Ji'ith ^statutory requirements and coals,- In a-
few cases it ~zy be necessary to" propose statutory chances.
£?A will" involve its state partners vherever possible
as full participants in decision-making affecting the
-structure and"direction of environmental programs.
4 ) Be Flexible In Defi_n_i_no State Procram _t_C'~ .iy.a.l_e.n.cg_5v
Fcc'jsinc On Results
„ c
a
me £ n , E ? A c c „ n s £ 1 "'ill i r. t s r p r 51 the regulations,
•-• r, s r e ve r the Is -" a i !-. c"-' s , to increase t h-e flsxibili" y
-------
available to state end local governments* Determining
the effectiveness of a state's program will focus on
results rsther than procedures which are not legally
required. .A reasonable amount of consistency across states
is essential to ensure that national objectives are net.
However, EPA 'will net der.anc as a condition for delecaticn
federal programs, once celecated to the spates, be
administerec in precisely tne sajne vgy in each state. Nor
will the Agency expect states tc adept the sa-e manner of
administering a procraTn that EPA itself would choose.
St.re&rr.l i ne__Agency ^e_y_i_ev Procedures Tc Eliminate Unnecessary
Delevs In Delecation
EPA will establish &nc adhere to review schedules in order
•to avoic unnecessary delays. There will also be an internal
corr.rr.itment between head- quarters and regional offices to
i -prove ccrr-uni cat i ons , resclve conflicts, anc eliminate
duplicate review procedures.
S ?A "-"ill s pe £ k with one voice, t h r ou 5 h the Regional
Administrators, vhen reviewing state applications for
delegation. Headquarters and regional offices will provide
E single set of comments to states at each stage of review
and negotiation, "Resolution of disputes among EPA offices
is a shared responsibility anc will be scconp-lished with
no unreasonable delays. Moreover, in reviewing delecaticn
£ppl i cat ions , EPA will exercise appropriate judgment '-to
ensure that our cOT.ments focus on truly important matters
anc do not reopen previously resolved issues.
The easiest -way to avoid needless delays is for all respon-
sible offices to he involved early in reviewing a state's
application with state officials. Early identification
of sicnificant issues is vital, • Each headquarters procrr.ri
office, as well as the legal office, will have specific,
realistic deadlines for the review of delegation applica-
tion s"«n£ vill '-track '-"their, so they art met. Once these
deadlines are set they will be observed. EPA needs to
be able to tell a state, at =ny point, •<-•-. ere its delecaticn
aoo licit ion stands, whet issues ere under consideration,
and vhen the Agency will provide a definitive answer.
Use Assistance Tc Encourage Delece t i o^_A~_ol i c£ t i ons
F rcr. States
= = s 1 £ t £ n c e t c e r. c r u r a c s stales to
ers' and after c e 1 e c £ t : c " u s : " c ~ e ; ", c ~. £ s _ c ~ as detail : nc
zerscnnel, c ~- c using t r o g r ?.rr crc'is tc encourage
te c s £ u r. 1 1 i " n cf CrlcZc'ii" r^spcnsi ri.^tiss.
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I expect this delegation policy to be carried out by al
E?A headquarters and regional personnel. It •-ill demonstra
c •,- r c orrjr, i t;~ e n t to i;1- i 1 c i n c £ p r c c 'J c t: v e partnership with t n
states by pursuing res per, siiie delecation of environmental
p r oc r ar?.s . In addition, the ace c~p a. ny i n 5 oversight po 1 i cy
acdresses our rsspor.s
cf federal statutes a
protection throuch sc
te
!_ * f* ^ ™. *^ ^ ^ \/
bility to ensure adequate enforcement "
id to enable effective environmental
:nc oelees tec state procrams. The
success.cf our et^orts tc carry out cur mission to protect
the environment will depend, to s. great extent, on the success
cf the st£te/i?A partnership. You will have
v c 'j r e x i c r t s t c enhance
the pelicy
rull support
•ship and to carry out
tr. i s s ta tenent.
. £-. , Ruokelshaus
Administrator
1 ^ •» 4
uS
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EPA POLICY CONCERNING DELEGATION
TO STATE AKD LOCAL GOVERNMENTS
The purpose cf this delegation policy is to guide I?A
employees es they participate in making the ~any individual
cecisi.ons that affect future delegations tc states. This
statement cannot, by itself, settle ell issues surrounding
delegation approvals, -any cf wnich are complex rr.atters cf la-
and interpretation. However, it does id-entity the central
approach which the Acer.cy will take in resolving such issues.
federal environmental prccra.ms were designed by Congress
to be administered at the state and local levels wherever
possible, The' clear intent cf this design is to use the
strengths cf federal, state, and local ccve-r.~er.ts in a
partnership t c protect public wealth a n c t ~ e nation's air,
w£ter; and land. State and local covsrr.~er.ts are .expected
to assume ori~erv re so ens i bi li tv for the irr.~'le me rotation cf
national proc rams, while EPA is to provide naticnal environ-
mental leadership, cevelop general procrs~ f r i-me^crks, establish
st-sncarcs as required by the lee; slit ion, conduct research anc
national i r.f orrr.et i or ccllecticr., assist states in preparing to
assume responsibility fcr procra- operations, provide technical
s-jppcrt to states in ~ai.ntsin;n; n:cn c'Jclity programs, and
ensure national compliance vith environrnent=1 cualitv stancercs.
EPA's policy has been to transfer the af-.ini strs t ion cf
national programs tc state an4 local governments to the fullest
extent ocssiile. ccrsistent *-? i t h statute r y intent and cooc
"anagement practice. with continuing advances in state ano
local capabilities to administer expanding environmental procra-s,
it is less and less appropriate for £?A to 'continue tc directly
carry-cut* day-to-day, operation=: which cverlap -state- arnd 1'occl"
activities. Of course, difficult and ernerci-g environrnental
i s s u e s r em a i rs, such s, s toxics and acid rain, which rr.u s t be
adequately addressed end translated by £?A into operational
-"-ce-ams that can be oelecated to states. But as a oenersl
* S? «"• "^
eoDroach, £?A recognizes t as did Congress,' tr.e wisdom of state
and local rr.ar, a cement cf day-to-day c per at ions. Delegation cf
resoonsioilities to state anc local cc-verr.~en.ts is mere than 2
r.eans tc avcid duplication in ;he prevision cf government services.
_~ is £»sc an crccrtur. its»' tc return c 5 c i s i c n *~.""(a *", i ^ c autncritv ^.c
^ s-v^' c* cci''e*rf'*''i~j:"nt c cser* tc tne r^pscc«e
-------
osirr.i tment, experience/ and ingenui ty-~cu,
your c
have always set EPA staff apart as ar. elite corps among Fscerai
work.® rs.
William D. Ruckeishaus
Delecsticn Policy
Oversight Policy
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"Delegation" is the review and "approval" or "author!-•
zation* process by which EPA assigns to competent and willing
•tates'the responsibility to operate a program, mandated by •
federal statute,- Since delegation usually involves state
governments, the discussion in this policy refers to states.
However, in the few cases of delegation to local governments,
as in the air program, references tc states generally apply
to local governments es well.
"Oversight" cf delegated state pro-crams is broadly
defined as the set of activities conducted by EPA after
delegation in order to ensure that state programs adequately
pursue progress toward national environmental coals and
enforcement of federal statutes, and in order to provide a
national and -regional description and analysis of the status
of environmental cualitv.
GOALS AND APPROACH TD OVERSIGHT _
It is tne policy cf E?A to conduct oversight of delegated
state programs in order to:
1. Ensure adequate environmental protection, through
continued development and- enforcement cf national -
.,: standards, and use of direct enforcement action
acai nst . polluters as necessary to reinforce state
ectionand'euthcrity. •
2, Enhance state capabilities to administer sound
environmental protection programs, through increased
communication and s, combination cf support and
evaluation activities.
3. Describe and analyze the status of fictional and.
regional environmental quality, through continued
;cl le ct i en -and cisseminat.: on -of information 'fTCTi
state agencies and other major sources,
EPA's oversight responsibility to ensure that federal
environmental laws 'are enforced is best purs_ed in ways that
effectively share responsibility with delegated states, that
minimize the need- for direct I? A action or intervention, and
that provide support for and participation by states. EPA
needs* to operate w;^h states using clear rules and mutually
agreec-upcn criteria for action, and to be as responsive tc
states as possible. In delegated prccrar.s,. E ?.-.'= success
c
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Enhancing state capacity tor success requires 'a strong,
predictable, and dependable system of support and evaluation.
Given the nature of inter-governmental programs and the
complexity of environmental protection activities, EPA cannot
depend on review and evaluation activities alone to produce
quality state pro-grams. But federal assistance activities
alone =re also net sufficient to Foster quality state programs,
since that approach ignores states1 responsibilities to meet
corr.ir.i traents and enforce nation?.! environmental standards,
Support and evaluation activities are thus equally
necessary^ and should reinforce each ether. Formal and
informal evaluations of stats programs should be supportive
in terns of helping the states identify needs and means for
improvement, while assistance activities should help the
states meet agreec-upon priority ccmmi tments end objectives.
Support and evaluation activities should focus on achieving
quality state programs and performance, and on preventing an^
solving e nvi ronmental problems in the field.
,er:ng cus.ity state procrans is not a static activity,
and will also vary across delegated states. Conditions in
states change, and program activities must chance to respond to
,ne« environmental problems and challenges. Consequently,
the methods used to oversee state programs must change over
time, depending on the maturity and complexity of national
programs anc on the capability of delegated states. *ut the
go * is anta general approach described here should remain the
same.
POST-DELEGATION ROLES AMD RESPONSIBILITIES OF EPA AND STATES
It is the policy cf EPA to pursue pcst-deiecation roles
of national program designer and spokesperson, ally sno supports;
of state programs, and ultimate enforcer of federal statutes and
re Durations , "becaus'e" t"n"a£"apprdachT provides the"~Bes t* way "to "".
ensure excellence in the job of environmental protection. Of
course,'. • EPA also remains respons ibie; for'resolution "of inter-
state, national enc! international 'issues? s.-c *£cr carrying out
research and development activities and national information
collection anc analysis.
£?(-''« oversight responsibility is to ensure the even-
h&ndec application and enforcement of fedsrs! environ^ental
1 &•-•«, regulations and stands res, and to provide states ^ith the
- 5 c s s s a rv a £ s : s t £ -, c e , t c-c 1 s i " e t h - c s , a T. c i: a c k - u - ?. - - t>r. - r r r.
a s : c . - Q- £ ;
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Headquarters Program Offices
EPA headquarters programs are responsible for developing
national goals, standards, regulations, and policy, and for
ensuring their consistent and effective implementation. To
achieve these objectives, program offices establish overall
p r og r am design and ~ a n a cement, develop national program
guidance, evaluate regional offices, and establish a framework
for regional oversight of states. Headcuerters procra-
offices may also provide states with specialized assistance
which cannot be effectively or economically supplied by
regional offices. All such activities should reflect earlv
and continuing consultation -ith regions and states.
Office of Research and Development
CRD and its laboratory personnel are responsible for pro-
viding strong scientific, engineering and other technical
support to headquarters programs, regions and states to
solve environmental problems. Research and development
Drier:ties and projects should therefore be responsive to
regional and state needs, as '•'ell as procra" needs.
_ffec_i_oricl Offices
Regional offices have an essential role in interpreting
and adapting national program objectives and r ecu ir erne nts
'to the needs and circumstances of individual states; in com-
rr,uni cat i nc with both states and headquarters offices,
raising issues, suggesting solutions, anri resolving problems
with both parties; and in identifying r.u It:-state needs for
research, train ing, and so forth.
Regional offices are responsible for oversight of delegated
state programs, including identification of state needs and
prcr;!er?,s , review and evaluation of state program performance,
and provision cf technical assistance and other appropriate
r-e-spons-e-s , -i nc luci ng-ci rect enforcement, action. Regional '
offices are best placed to tailor evaluations and assistance
to-adcress specific /state .needs and take into account~past'
performance cf state procra~s, within the context of' meeting
national environmental goals and recuirecents . Regions
r.ay either provide direct assistance to states, or identify,
coordinate, and facilitate access to assistance located
eIsevhe re, as ap:
; c -. a i £ t r a t e r y £ r. c p c . i r y ; re=c._t-t.. •- - - ., - = - i . e . «•
rr:-:-:::_-ri-~ ^e £ -. i-. I f - "_ 1 v tC :~e de ve lct~e r.l
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" national policy and strategy; and maintaining financial and
ograrr. records that are sufficient to provide EPA with timely
end accurate information necessary to evaluate state activities
relating to national program implementation,
For each responsibility at the federal cr state level,
there is a correspond in? responsibility st the ether organiza-
tional level. This demonstrates the interactive nature of the
relationship. Per example, development by E?A of appropriate
national priorities and objectives is dependent upon know-ledge
about pollution and compliance problems in the real world; this
infcrirvation is mainly collected and supplied by the states, Fcr
E?A to evaluate state programs ind to determine where additional
technical or other assistance is needed, states nust provide
accurate information and cooperate in program, reviews. Tor
states .tc effectively i-pieraent programs consistent vith national
strategy and policy, E?A must provide timely and useful guidance,
and rr.ust necctiate realistic objectives and arorcoriste priorities.
UN
Insure continuing strong enforcement activity, vith
states as the first line of action_anc £?.-. &s__strong
ba ck -'j_f_c_r_at i on when needed.
Delecated states have the lead responsibility for compliance
and enforcement activities, and EPA expects delegated
states to conduct strong compliance and enforcement programs
The Agency's enforcement role is shifting frerr, s. primary
focus en performing inspections and takinc enforcement
actions tc an emphasis on conducting review and evaluations
and providing states with guidance and technical assistance,
in crcer to assure adequate performance cf state compliance
and enforcement programs.
While "de legated' states "have "pf frSary' responsibility 'for ~:'
compliance and enforcement, ErA _cannct ercic&te its
resp'ons'ibii i ties " tc 't~ne "Congress" to ensure that national
coals and objectives are met. EPA alse has a role in the
.enforcement area as a. strong back-up to states to provide
direct enforcement actions when needed, £?A will endeavor
tc assist state compliance and enforcement programs when
recuested, but the Acency rr.ay also take direct enforcement
action in those cases where a state demonstrstes it is
not wiliinc tc establish a strcnc enfcrestsn; presence cr
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-p.-
EPA should establish in advance with the. states the .general
criteria or guidelines for when EPA will take independent
enforcement action. Such criteria could identify, for.
exanple, cases involving national precedents or other
factors of national significance, unusually large environ-
mental impacts, imminent hazard situations, cr state
enforcement responses that are not "timely and appro-
priate," v*e must, also coordinate our enforcement actions
with states, notifying states in advance, and taking
direct action in accordance with agreed-upcn criteria
and not in a way that appears to states as random and
arbitrary cr that duplicates state action.
EPA and the states should conduct annual joint planning
for compliance and enforcement activities, in order to
'establish and coordinate priorities and strategies.
EPA headquarters should focus on developing, with
regional and state involvement,, annual program strat-
egies and priorities for targeting compliance and
enforcement activities, i.n clue ing criteria for EPA
priorities such as types cf facilities cr types of
violations. EPA is also required to assure a continu-
ing, strong nationwide enforcement presence, in order
10 correct specific instances' of" non-corr.pliance and to
. promote voluntary compliance by the regulated community
as a whole. Headquarters should.work vith regions and
states to develop agreed-uporr criteria for, and measures
of, adequate overall"state compliance and enforcement
programs, including the level cf compliance monitoring
activities and the adequacy of state actions in specific
instances of non-compliance.
E?A regions will tailor national prog ram criteria for an
.'adequate state compliance and enforcement program to fit
each state's unique cir curr.s tances, procedures and author!-
-ties,..for the purpose cf annual'state program evs-H.-at'rcr.s
?cr EPA's enforcement role-to be ef f ect i ve r sta-tes"must
rrovice the Acencv with orcm.pt and accurate information
on DO Hut ion sources not in compliance ar. d en state plans
concerning enforcement actions; such information should be
focused especially on mutually established annual priorities
Frequent and accurate state reporting cf compliance informa-
tion is extremely important for both EPA and the states.
Having an accurate nationwide piczure cf compliance and
e. - -. - — =--•'•••'-•' c c ; — - - r v f> c C:"_ *" ccll^-tivs £ b i 1 i t v t ~
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2 . Clearly define __p_ roc rain coals? _ori o'rit ies f an ^measures of
sue cess.
* Program 'offices must work with regional offices and
states to clearly Describe program goals, priorities,
measures of success, and specific types of work to be
performed by state agencies and £?A ; and to provide
ar.n'jal program guidance that is timely anr, useful to
oe legated states. Clearly c escribing objectives and
expectations for state environmental programs vill in-
crease the ability of state agencies to successfully
implement program requirements, and '-'ill increase EPA's
ability to provide appropriate assistance and evaluation.
6 Program offices should involve states, to the maximum
extent allowed by law, in the development of reculitions,
standards, procrejn policy, and guidance that vill affect
program implementation by states. Early and continuing
state participation is important in order to identify
potential impacts on states, anc to provide an operational
perspective which can -ak*> the regulations much more
effective and enforceable.
0 Program offices -should increase their ability to define'
Treasures of 'program progress and success in terms of
environmental results, as well as in terms of procranunstic
results required by statutes cr regulations, such
as consistency,- equivalence and adecuaey cf enforcement.
This vill enable oversight of states by the regions to
focus more on program goals for environmental results "and
less on procedural rietsils, thus allowing the regions
greater flexibility to tailor national programs to fit
individual state conditions and pricrities. The states
should be included in the development cf measures of
program success, in order to increase the effectiveness
cf these measures. Wherever possible, the Agency's
Strategic Planning and Management System should focus on
key envi rcTYrne'fi^'S'i* ""me asu'res '"useful tc -SPA and the states
for improving the effectiveness of tie work. An example
mi ghtr be • the reduction cf emissions by a certain but
verifiable number of tons per ye«r, in addition to the
more usual program performance measures such as numbers
of enforcement orders issued.
e ?rocrs~ a no regional offices must define, and specify in
delegation agreements or other inter-seer. cy agreements
•- i t h states, which ^rocrem areas cr issues are tc be
£ r. s "j r £
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cm i^u /-• j-^ *_--£• ^, tr- X1' *" ™\ i*3
^.» €-£rijfeJ(^£; aDC.
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-5-
state-E?A agreements (SEAs), should establish agreed-en
priorities, measures of program success, and formal
coimr.itjnents from each respective party.
Provide constructive evaluations cf delegated state programs ,
rocusec or. Dro--em-so:v:.riC.
* Evaluations should generally focus on overall procram
performance and identifying patterns of problems, rather
than focusing on individual regulatory decisions by
states. Individual actions will be reviewed selectively
•on an after-tne-fact basis as part cf an overall program
audit or evaluation, in order to identify patterns of
problems. EPA should Generally avoid second-guessino
state actions as they are being made. However, there
may be some cases where EPA participation in in individual
- state program decision is appropriate because the decision
is determined to have .unusually large envi r cr.me -1 al
impacts or national significance, or because EPA is
required to participate by law; that category of issues
or decisions should be carefulIv defined in advance.
Evaluations should be based as -much as possible on objec-
tive measures and stancar-ds that are agreed to in advance
with the states. Evaluation measures should reflect the
fundamental elements of national programs, delegation agree-
ments, and the commitments in annual' negotiated agreements
with states, -such as grant agr-eements and state-EPA agree-
ments (SEAs). Evaluation feedback to states should focus
on .-Deans cf. program improvement. However, proposed
solutions to identifier, problems need to match the nature
and extent cf the problems, «nd should reflect individual
state conditions and circumstances.
Evaluations should be frequent enough to find problems
early, and thus be able... to... stimulate .change, whi le the
problems are still miner. Regularly scheduled evalua-
.tions s'nou 1 c., occur .at. . least .onc.e ?. ye = r; and should occur
fcce-to-face in state offices, with wr::ten results.
Thev should involve senior E?^. and state manage r s ,
and should contain r.o surprises for the states re carding
content cr expectations.
EPA should- use experienced , skilled senior staff as much
as possible to conduct evaluations cf state programs.
E v e 1 u e t c r s with t e ; r. r, : c * 1 exertise, - r z c r = - e xp e - i e -. c * ,
. z ~ r r t '•" = ~ ^ ~ t c r ~ a i ~. t e ~ i r. c = :. - c u a 1 y
: ~ state r r c- r r a ~. .* , s : ". c e = :>: 3 e r i € r, c e c E ? A
-V'-*~V-' £!---•£, ' — " - £l ' -* C ~ ^ ~* *• -*•*•" " — *" ^ - -
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Ensure t_i_rn_ejl_y identification cf sta te jprocram n e e c s a r. c
s~t"a t e eTTv"! ronme n t a ^. "rcsj&ns _a_nd concit
Identification of state nse^s and problems should be
accomplished through a combination of methods, including
joint planning, annual priority-setting in negotiated
a cr eeme r. t s , periodic evaluations, routine reporting
systems, e,r,c ir&cuer. t cenmijnica t ion.
Frequent: ccr\mu ni ca t i en with state staffs facilitates
early identification cf problems, needs, and concerns
of state acencies; allows timely response snrt follow-
up by r?.-. to such problems and neens; anc reinforces
program goals an^ objectives. Emphasis should be placed
on inferrr.al and f ace -to-f a ce corrjnuni cation with state
staffs as well as fcr~£l and written communication. ?re
-
are doing well, since local situations can change r'apir/ly.
* Timely and- reliable reporting by states on the activities
cf state prccrErr.s and -the status of state environmental
conditions is essential in order to keep i?A well informed
on the progress cf national programs . and the status of
national anc regional environmental quality.. Reporting
systems _ shou Id focus on key activities cr indicators that
make the bicgest difference in the success of state procra
and the quality of the environment. Such information
should be useful to both £?A and the state agencies for
improving the work. E?A should use program activity
information anH, environmental nonitorinc data to report
- -o Congress, plan future strategies or changes. in t-he work
to be performed, and identify current operational problems
that need procra^r.-wids attention. --
Reporting requirements should be -worked out in concert .
with the states, since the resulting inf ormat .ion should
be of significant use to the states i n managing their
prqcraps / as well as.. to E?A in .mo nit "in c the • progress .
anil success of national programs. ?. ecu; remer.ts shouln be
as consistent anc predictable as possible, ..since .racie*!
chances in reporting requirements anr: new mic-year deTTiands
for data are difficult for the states to accoiruTiOdate . ^ny
specia?. reporting requirements should be proposed as part
cf the annual program planning process in order to minimise
mid-year demands for information.
c EPA should Drovioe an c-pocrt unity for periodic state
evaluations cf £?A's pericr^ance in prc^iiinc = =s istar, ce
e v e u £ t L c n s
& u a
cf £':£: e s bv recicr. &1 c:^ ;:;££, anc sheulc
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Utilize a ranee cf responses to state _prograa performance
and state needs, focused on oreventjirio^large mistakes '
and solving identified neec_s.
e EPA has some strong sanctions if a state does not- operate
an adequate program, such as taking back delegated
responsibilities cr reducing or .cancelling grant funds.
But a more constructive approach is to prevent problems
from occurring in state pro-crams, by developing program
guidance that is more timely and useful to states,
establishing joint EPA/state program planning, and
enhancing state technical and management capabilities.
p EPA must respond quickly and appropriately to identified
state needs and problems. Program end regional offices
must, in conjunction with states, develop a ranee of
possible responses, from tools and assistance to direct
action, anc must clearly define when anc* how such responses
will be usec. EPA' s possible range cf responses includes
technical, ma n a c e me n t or legal consultation, traininc,
initiation cf a special study, increased or decreased
grant amounts, targeted program evaluation cr audit,, more
frequent evaluations or audits, formal cr informal
communication, revision cf program guidelines or manuals,
laboratory testing, field environmental monitoring, direct
technical assistance, anc direct enforcement action,
•'among otne rs,
e Possible tools provided by EPA include detailed, up-front
guidance where needed on how program work should be
performed. Each program must simplify and standardize its
regulatory work as much as possible in order to maximize
efficiency and consistency, while still providing room for
appropriate flexibility in state implementation. This can
be accomplished through development of standard operating
procedures cr other kinds of "how-to" m.anuals, developed
with_extensive state participation. The vcrk can then-
be delegated to states more easily, and areas cf responsi-
.bility defined for state.agencies.
* - If EPA believes that a state program has been ineffective,
the Agency must consult with the state before taking
action, to give the state a chance to explain and/or
correct the problem. All available solutions to state
orcblems short cf taking back the program will be triec
-------
Ultimately EPA is prepared to take back-, a celecated
program in case of clearly unacceptable performance by a
state, which shows lack of good faith or capacity on the
part of the state to correct the problems. Taking back
delegated responsibilities must, however, occur in *
consistent and predictable manner, under pre-defined
conditions and circumstances and in accordance with
fede ra1 law.
£?&-should also encourage quality state programs and
innovative solutions to pollution problems by rewarding
success whenever possible. S?A should develop and use
a variety of responses to excellent state performance,
such as publicizing state progress and accomplishments;
conducting less frequent evaluations or audits (but not
less than some minimum level); or providing technical
or financial assistance to quality state programs fcr
innovative projects that address state problems and help
achieve na-ional goals. Program and regional offices
should develop and carry out an organized program to
identify and transfer good ideas from one state to another.
This is an important form of assistance which also gives
national recognition to innovative solutions and successful
state programs.
I expect this oversight policy to be carried out by all E?A
he ad quarters and regional personnel. It will demonstrate our
desire to work with and assist states in s, positive manner to
successfully implement delegated programs, while at the same time
retaining our commitment to maintain high national environmental
standards through appropriate sanctions and independent action, as
necessary. The success of our efforts to protect the environment
will dependr to a great extent, on the success of delegated state
rams. You will have my full support in your efforts -to carry
the oversicht oolicies in this statement.
prog
11 i a™i D. Ruck e 1 sha
Administrator
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MANUAL
DELEGATIONS
\,
f,
[f <
E N V I RJ.N H E H T A I P R 0 I E C T i 0 N A G E H G
W a s h ingt o n , 0, C. 2 0 4 G 0
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ENVIRONMENTAL PROTECTION AGENCY
CONTENTS OF CHAPTERS
D EL EGAT10 N S MANUAL
M ANUAL
DELEGATIONS
CHAPTER
TITLES
GENERAL, ADMINISTRATIVE, ANT) MISCELLANEOUS . . .
FEDERAL WATER POLLUTION CONTROL ACT
MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT
1973 MARITIME PROGRAMS APPROPRIATIONS ACT . . .
FEDERAL INSECTICIDE, FUNGICIDE, AND
RODENTICXDE ACT
FEDERAL FOOD, DRUG, AND COSMETIC ACT .
CLEAN. AIR ACT ,
SOLID WASTE DISPOSAL ACT
SAFE DRINKING WATER ACT
CHAPTER
NUMBER?
1
2
3
L,
5
6
7
8
9
TN 6 (9-27-76)
ORIGINATOR: PM-213
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N 1 0 3
HJ 2 f
za ACT ' " c
2-34. st&ta Prssrati
. 1b approve State N~?£5S progrsres to tllcw these States to issue
cansiricn permits" or to deny applications for parro.ts for discharge; to
rasdlfications to State NPDSS prcgr»s to ailcw these Stages to rfts
Cacilities; to approve ncdiflcations to State program to cil
to thes« States prstreRttnerrt authority; and to strove mpitfieatisris to Stata
prccraira to allcw these States to issue oenaral permits.
2, TO >£50M D^^STS. Regional
3.
i
a. i5o determination shall be ra.de regarcirig the eiupleteness of a Stats ''
prcrrare cr a rracification to such State K?DZS prcjrans withcut the concurrence
of the Director of the Office of "Water Enforcanent and Pernits and the Asscciat
-^""nera.l Course!, Vitar Ed vis ion.
tfc> decision shall be nmd« recmrding final approval of a Stata OTOES
or a rroiificaticn to such State program without t>.s concurrence of the
Director of the Office of Vfetar Er.forcarnsnt &nd Pesrdta -?^.d the Associate
Gar.era.1 Counsel, Water Division.
B>
c. No heacxruart-srs ccacLirr^nc* shall "be raruire?d f=r minor nodificatioas
to a State NPDES roram.
This authority rray not be rs-delegated.
a. 40 CTA 123.21 and 40 CTR 123.61;
b. 23A, Order 1000.23.
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•i UNITED STATES ENVIRONMENTAL, PROTECTION AGENCY
^2JS * WASHINGTON, D.C, 20460
i.^"*WWVf
2 6
OFFICE OF
WATER
Procedures for State Program Approvals and
Mod i t" i ca t i ons
j . '~~i~> ~
FROM: Bill Diamond, Chief (•(.' \
Program Development Branch
TO: Program Development Branch
Based upon the last few State program modification
requests, there appears to be some confusion over Headquarters
role in approving these modifications. I want to remind
everyone of the process for Headquarters concurrence in
State program approvals and mod ifications.
As you know, the Region now approves State program
approval and modification requests, with the concurrence of
OWEP Director and OGC-Water. The Region is responsible for
publishing the notice of proposed program approval, as well
as the final approval, in the Federal Reg ister. Under the
program delegation, HQ must concur on both the final approval
and the completeness determination for any substantial program
revision.
However, since there is no statutory review period for
program modifications, we have generally not had a formal
completeness determination for these changes. Nonetheless,
HQ must still concur prior to publishing notice of the
proposed approval. This means that a concurrence package
sin liar to that used for' approvals must also be prepared
prior to any proposed modification. Obviously this process
applies to pretreatinent program, general permits and federal
facilities program approvals.
cc: Martha P r o t hr o
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1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
v. t?* WASHINGTON, D.C. 20460
* *t3**
.".??. '< £ T373
0?FICt 0s" ENFORCEMENT
f T> ' H!3 f 1 1 P, i IM '
rCi'iU.«A!i JgPi
TO: Regional Enforcement Division Directors
FROM: Deputy Assistant Administrator for Water Enforcement (EIJ-335)
SUBJECT; EPA Procedures for Review and Approval of State Pritreatment
Program Submissions
We have already reached the March 27, 1979, deadline for receipt
of State aoDlicetions 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 approving or denying applications for program approval. In response
to these requests, w* have been working with several Regional Offices
to develop more flexible procedures. Problem areas have recently been
resolved and the form of these new procedures was settled upon. We
would like you to be awsre that §403.11 of the ceneral pretrtatment
reculstior.s is coino to be amended in the near future to incorporate
these new procedures (see attached draft' arr-endmen:s) end to conform the
pretrestnent regulations to the final NPDES regulations. The process
for review, public notice and approval of State pre treatment orograms
will be different. The new procedural responsibilities should be
divided between Headquarters end the Regions as indicated below.
In ceneral, EPA shoyld rr.ake a determination en the requtst for
Stite pretrsatr:ent crogran approval within 10 days after the receipt of
& complete submission; however, there v;ill be no specific deadline for
EPA action. Upon the receipt of a complete submission, the Regional
Office should contact EPA Heedouarters and issue a public notice of the
rscuest for State r>re treatment orDcra^ aDDrovsl. "nis cublic notice
sr.culd provide for a co^-ient period of not "ess tr.sn 3D days and should
else provide. an opportunity for a hearing. Publication of the notice
need only appear in enough of the largest newsoarers in the State to
provide statewide coverage. The Recicn is resporsible for issuinc the
public notice, receiving and £r.g"iyiir,g comments c- the State submission,
and holding a public hearing, v/here appropriate. Whenever a hearing is
gcinc to be held, Headquarters should be infonr-ed end sent a copy of the
notice of the hearir.c, Eassd en tne State's submission and co^ents
^ec^is'ed the "ecicnal Ac~'"ri strator \/i " 1 "=ke a reco~"^er;d£tion in an
-------
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 concurring or
non-concurring with the Regional Administrator's recommendations.
Office of .General Counsel also h&s a concurrence r'ole. The final
decision will be made by the Administrator,
Since we would like to process these submissions in SO 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 Headauarters notified
of key developments in the procrain 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 pretreatment program
approval process as set out below,
Processino the Stats Submission. Upon receipt of an applica-
tion for State pretreardent program approval, the Regional Office
should send a copy of the State's submission to the Permits Division
it Headquarters for the attention of Bill Diamond and notify him by
C b *ie W WHW& i *•%. ! *3 * V 1 fcrMK. S. i» fe^ i1 b 1 MM W i Mill *r I feiHM MM « « rw 1 *V i* * • Jf M I I« &^J
telephone at 755-07SO fFFS). In forwarding this submission, the
Region should indicatt the date it was rtciived at the Regional Offi
ct,
If the submission is subsequently determined to be sufficient
under §403.10, you should proceed to public notice and notify the
Permits Division. If the submission is not complete, the Stets should
be notified of the deficiencies by a letter from the Reeional Adrninistret
In case of any doubt as to the completeness of the submission, please
consult with this office. In order to be deemed complete, the package
must contain all the tlenents required by §403.10. Any statutory or
regulatory authority the State needs to implsmsnt r.rttreitmtnt require-
rssnts must be fully promulgated before the submission can be approved.
V.'e cannot conci ticnally approve a program which lacks the required
authority.
Work on the ?>ecionsl Administrator's Action M?~soranduni should
during the comment period. Likewise, negotiations on amendments
to* the State/EPA Memorandum of Agreement, if any, should be conducted
dyrino this tise. .
Action Krrnc Setting Forth Re Gormen c:8tj_Qn_ on State _P_roorari P.eouejstf.
\ ; i t h i TTTB cays' "frorr, the receipt of £ suprcission mest-.nc tne repuirsnents
of the r>re treatment regulations, the Keg-ions! Administrator should
s reconnendaticn in an Action Memorandurr, to the Arimi nistrator, on
-------
whether the -State pretreatment program should be approved. A copy of
this Action Memorandum should be forwarded to the Penr.its Division at
the seas time. My staff will provide you with a sample Action Memorandum
upon request.
Tne Action Memorandum should include the following attachments:
"I, A copy of ".the public notice published in the reoeral Register
and circulated by snail and in the news media.
2. If a hearing' is held, a copy of the notice of a public hearing
on tne State submission,
3, Copies of all comments received or a summary of these comments.
The Action Memorandum should discuss significant issues that art
raised and respond to them.
4, An analysis by the Regional Counsel, or an -attorney i n 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
Hernorindum 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 tne adequacy of State resources.
Upon receipt of the Regional recommendation, the Office of
Lnfcr cement will process the Region's package and indicate concurrence
or r.cr,-- concurrence with the recommendation.
If a Ststs fails to submit an application for p^e treatment program
approve! within a reasonable time after the deadline, the Regional
Office st-.c-yl d notify He a c quarters and should also contact the State and
remind it cf the need 10 submit an application.
tency Hutzel and David Schnepf in the Penr.its D; vision are available
tc assist you. They car, se reached et 755-0750 (TTS; . Please do not
he si ttt* to call them with any questions you DJLJ
Jefrrey G| nil ier
£ " S , -• 6 " " 0 r. S i - X
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(c)
I fc i»^«fc n * ^M^jiJ
C ™ s •" & ^^ »
y 4C CTH £
^rr ^A arc th
*"2 4&W *p ^
t t
i) S4C3.1C is
(h)(2) ts raas as
llows :
S4D2.ID (raardef)
T » * *
(h)
* * *
|OF ^,*. :^ /Q pr^ c" ** £*
. ^. \v^a Ip _»« *T W l^»n r\ J. . ,,;, ,. * tm
fc
**«*•!•
•;c. v^^^^s JLS pj™
"
-------
. Ar~.
?re •=•<££ r
cf
Pretre&trer.t Starczri
(i) £403»H is
« bv r^vi-sirr; the first serjt.ar.re ts reai as
sn*i»«t ^iiiiniai i *!Iii^^^
*****
(n) C403.il(a.) is ereress by chirjginc tha r^ftrer^s in
*403.9(e) S.TS (£}* to NOS.SdS) fri («)."
pacss r
the w—ris '-shall be published in th* Fegersl ^gcir-Er in the case cf a
St£fs S'/rrjlssim a.*sf'
eete
(C) art
^csis icr^.t;sc ^o (A) arc (3) r
, ^o t*a= « fcilcws
*****
-------
El)
CD
* *
*• * «•
.j^ii^jyj-^, , ^**^ *^Wg^ C
*** V^L"^* * "^ ^'^^ "Mitr^Ls^" ^z^cri ( s ^ ^^^"v^^ i^/ ^""^^
• (r) 5402.11 is sTareed by r^asritrtins the wsris R30 czvs* vtsersver
tht wsr^s a4
(s) S4D2.11(b){2) (ii) is arasnse-3 by the deleli^ tbs vcris "a Stars cr"
-------
(c) If the rdrT±rlnra;z:r £^prr.'es the'Stats.'s serti.cn 404 prcrrro he
cr she sr.all ratify ths State arc the Secretary and polish rctice ir«
the Fecera-1 P.eeirtgr. Ihe Secretary shall suspard the issuance cf
section 404 permits by the Csrps cf £wir!&£.rs vithi^ the Stats, except
fcr these u-Ei-rs spacifie= in section 404(c}(l)'ef the Art is
icEntiifisi ir» thr= K>srrdrBn5ir!! cf ,?i£r"c"S^sr",t fcszw^sn th** Etita £™s the
Secretary (&ss'J123.5(a)),
(e) If the Aiiir_iszr"2:t2:r ser.iss the Stats rrsgrs: ht cr £hs shall
r=t£_fy the Stats cf ths reassr^ *cr ths cenial t-= cf .any revlsiens cr
ra=ificati=^s to the State =rz=rsa vtiich arr necessary to cbtain
^ar: G - ?svisicr^ to rcrr^ed P
23. £1 ?rtx?scir^ fsr rpvisior. cf Ststs TT
(a) rTCcrsr, r™.-i£ is n rr,ey be ir.it-iatsd ti th< r&=jasz. cf eiiisr EPA
CT ths St£Z.s . ?~~sr~-gr'. rtvision ~i2v be r^c^sse.rv vcsn ths czrrtr^Hi.rc
" <« « i»
Fecercl cr S^E-S siatirtary cr rescifit^ty £-.thcrtty is ns^ifiei tr
s'jppls^sr.-sd. 1b£ Stata !£irsctDr shall >s£p Z?A f'-lly irJbmec cf any
przprseri rcsfifirsilcr^ ts its basic statirtsry cr rec-^lfitcry cCLhcr.ty,
i us »- trr.s/ prccscinres cr pTicri-ties •
r^visisr. cf 2 S^Eta rr=g :TT. shall bs a==rpli£hjad as f=ll«s:
G^risrcl's Stzt«rsr.tf ^ferc^c.^-J:'^7, cf Arrs-erner.t , cr c^r>sr corjrsr.ijE as £r
-------
Is s;i:stzr. li-
ser.sy shall issu-s pcblic nstics arc" rr^vi
30 cas fsr ^h
cilic to
7rs* public -rr;
be
to ir.^artstsc
iej arc shaii be p^blishfri in
ir. thg Stats ts aztr^cr statewide
,**, = * *l *H,y-i «, A-, ^-
h cf the
» »•*.*! <• .^-"Pfl-a, fc
••! i i '"•P** t— I.I
rr^rrsn r^r.ificsticns ray be zsrrsvef by a lecisr frcr, the toency,
(c) Se Sta^s Dirsctrr shall nczify ^A \,Tsa«ver the Stats sr
•tD trzrjsfer all cr parz cf cry — grrst: frsr, the s^trt^ed Statt astsssy
trp«Lry ether acer.=%-, £.id shall icsr.tl^y ary n*-' eivisisn cf rsspsr^i-
iiliti-is ^i=rc the acencies Lr>oiv«c. T^e ne1"' eser.rv4 is net autherizee
) If th« A±r.Lr.ir'irr£trt rias rsissn to believe that cir'srrstanss
e cr she ray Terusst f
ra hr»~e
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\
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20450
DEC 5 1 12SD
MEMORANDUM
N-80-17
OFFICE Of ENFORCEMENT
SUBJECT:
TO:
FROM:
Procedures for Processing Plans of Approved NPDES States
to Implement NPDES General Permit Programs
Enforcement Division Directors, Regions I-X
NPDES State Directors
R. Sarah Compton
Deputy Assistant Administrator
for Water Enforcement (EN-335)
INTRODUCTION
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. To date my office has
received craft general permits from seven approved NPDES States
for review by EPA Headquarters. It is clear from these submis-
sions that there exists much 'confusion concerning the proper
procedures to be followed in authorizing NPDIS States to issue
and enforce general permits. The purpose of this memorandum is
to clear up that confusion by establishing uniform procedures for
authorising 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. 197'
which denied
'PA
s authority to exclude certain categories of point sources
fro;?, 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 Hay 19, 1980 consolidated permit regulations have
largely adopted this same permitting scheme, several important
chances were made. The primary change , for the purposes of this
memorandum, affects the procedure for authorising an approved
^?DES State's authority to implement a general permit
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- 2 -
program* The June lt 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 123.1 2(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 penr.it program under 40 CFR
122.59. See 40 CFR §123.S(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 General's 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 roust
examine the State's Memorandum of Agreement (MOA) to determine
whether any provisions of-the 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 RA must require submission
of a modified MOA, and such other documents as she or h«s 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 instancesr 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 consider
substantial, thereby necessitating public comment. The Region
are required tc issue public r.ctice cf
revision which shculc be
* A program revision is necessary because in most NPDES States
.he con-rcllir.q State statutory and/or regulatory authority :?,ust
-------
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
* r* ** *±** & & *» 4 e av-T^'i* e*
-------
- 4 -
these States' Attorney General's statements. Where approved i
NPDES States have submitted- draf-t 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 States1 authority to irrplement general permit
programs will be forthcoming in a State NPDES Progrta 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 subsiitted by approved States.
Much concern has been expressed over the delays these
intended procedures v.\ll cause to approved PPDES States1 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.questions or requests for further information
to Karen WardzinsXi of my staff at 426-47S3.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
FEB 1 2 1SI
S-81-2
OFFICE OF ENFOKCEMEWT
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 Director;
FROM: R. Sarah Compton
Deputy Assistant Aoffunis
for Water Enforcement
rrator
(EN-335)
In a recent memorandum
procedures to be followed in
to administer general permit
memorandum, we have received
decision to uniformly charac
of an NPDES State program ma
permits. Several States and
public comment triggered by
the implementation of genera
States. In response to this
and propose the following ch
dated December 31, 1980 we set forth
approving NPDES States' authority
programs. Since distribution of that
numerous complaints regarding EPA's
terize as substantial every revision
de to authorize the issuance of general
Regions objected that the need for
this decision would unnecessarily delay
1 perrr.it programs in approved NPDES
concern we have re-examined this decision
ange:
Amended Processing Procedures
An approved NPDES State's plan to imple
program will continue to be processed as a r
NPDES program requiring compliance 'with the
in 40 CFR §123.13. However, these revisions
programs need not uniformly be treated as su
The determination whether a program' revision
be made by the Regional Administrator. In ir,
nation the Regional' Administrator should con
Among these are the scope of the intended ge
terms of the size and nature of the sources
and the anticipated environmental effect of
sensitivitv cf the State's receivino waters/
merit a general permit
evisicn to the State's
rrocedures outlined
f State NPDES
tantial revisions.
s substantial will
ing this cetermi-
der several factors.
ral permit program in
activities covered
e program, the
he State's statutorv
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.and v^^'\!&tory authority for administering a general permit i
"program, snd 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 bv the Region and an opportunity for public comment provided
as required by 40 CFR 5 1 23.13(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 examining 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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PROTOCOL - Intra-agency Interaction on State Program JReviews •
Under EPA regulations and the Delegation Manual, both
Regional Offices and EPA Headquarters must concur in any NPDES
State program approval and modifications. These offices also
will actively participate in the review of existing State program
legal authorities. For these State program reviews to be effective,
it is necessary that all offices coordinate with one another
early and often during the reviews. The following procedures
are recommended:
o Regional Water Division and Regional Counsel and Headquarters
Office of Water Enforcement and Permits and Office of General
Counsel Water must all concur in every program review. All
of these offices should be represented on all State program
revi ews.
o Regions should inform and involve Headquarters early in the
review process to ensure that reviews are joint and concurrent
rather than consecutive and possibly contradictory. Early
participation by all offices is necessary to avoid delays
that may result from separate, uncoordinated comments.
- Headouarters and Regions should keep each other fully
informed of approval and review activities,
- Whenever Regional Offices receive or send a document relating
to the review of a State program, a ccr-y should be sent to the
Headquarters staff assicned to that Stale.
o The standard of review for State programs should be the
draft NPDES State Program Guidance. Headouarters and Regional
personnel reviewing new or existing State programs should be
familiar with the guidance document.
o Initial stages of review should be carried out at the staff
level with each staff responsible for keeping their management
i nformed.
o If any issues remain, whether substantive or procedural, these
should be raised to the Section Chief, Branch Chief or Division
Director level for resolution, If necessary, other management
will be consulted.
o In the past year, Headquarters has taken a number of steps
to expedite reviews.
- Review guidance update including models
- Greater number of Headouarters {OWE? and OGC) assignees
- Institution of tracking system - updated monthly
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- Standard comment letter format and processing procedure.
- Closer communication between all offices
These measures should minimize delays, however, aiven the larae
number of ongoing State program activities, some delays are
inevitable. Therefore, we have identified priorities (in
materials distributed) which will govern our activities when
there are conflicts. If there are any changes in priorities or
unresolved delays, please contact Martha Prothro.
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GENERAL COUNSEL OPINION
No. 77-11
September 15 1977
Minimum Requirements for State NPDES Permit Programs
State NPDES permit programs — Minimum requirements — Minimum'
program elements, as ttl out in December, 1972, have been amended
since and further amendments ire currently being developed — In order
to change minimum program elements, EPA follows notice ind other
rulemiking procedures (5 U.S.C, §553) — If new program element is
added, existing State programs that do not conuin new element do not
become revoked immediately; EPA may revoke approved Suit
programs only in accordance with procedure* let out in §*02(c)(3) —
Stale programs which do not incorporate new elements wiibin lime
allowed art subject to revocation under $4Q2(c)(3) — No formal criteria
have been established 10 indicate when new minimum program element
is needed; EPA't experience in operating Slates NPDES program!
demonstrates where revisions of Suit program elements are needed—
Guidelines under 4Q C.F.R. Pan 105 have not been amended since
promulgation; although any amendments would also be made under
procedures set forth in i U.S.C. §553 — These regulations do not, ni
with Lhcwe under Pan 124, establish minimum requirements for approv-
able Slate NPDES programs.
Doug Costle has asked me to respond to your letter of August 26 relating
to the Minimum Requirements for State NPDES Permit Programs. Your
questions and our answers are iet forth below
1. Havt the minimum program elements, as set out in December 1972,
ever been changed?
Response: Yes. Amendments were published on July 5. 1973 (38 F.R.
18000): July 24, 1973 (38 F.R, 19894); March 18, 1S'"6 (41 F.R. 11303,
11458); and' June 18, 1976 (41 F.R. 24709). Further amendment* to the
regulations are currently being developed. I have enclosed a copy of a recent
Federal Register notice explaining thr need for these changes,'
1. If so, what is the procedure for changing such elements?
Response: EPA follows the notice and comment nilemakjng procedures set
forth in 5 U.S.C. §5i3 for modification of the minimum State NPDES
program elements {40 C.F.R. Part 124).
2. If a new program element is added, do all existing S'.aie programs that
do not contain this new element become revoked immediately?
Response: No. EPA may revoke approved State prop'arns only in ac-
cordance with ihe procedures set out in §4Q2(c)(3) of the Act, which include
Editor's note: Not printed herein.
3E5 WATER POLLUTION
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GENERAL COUNSEL OPINION No. 77-11
a public hearing, reasonable notification to Uie State, and an opponunity for
corrective action.
3. If the State programs are allowed some definite time to incorporate this
new clement, what happens to a State plan that does not, by the required
time, incorporate this element?
Response: State programs that, at any time, do not comply with the
requirements of 40 C.F.R. Pan 124 are subject to revocation under
|402(c)(3) of the FWPCA, as sci forth above.
4. What criteria are used to establish that z new minimum program
element is needed, and what that program element should be?
Response: No formal criteria for establishing new minimum program
elements have been established. In general, our experience in operating
NPDES programs in the 28 approved States and jurisdictions has shown
clearly where revisions of the State program elements are needed. Examples
of needed revisions are given in the enclosed Federal Register notice,'
5. Would these answers apply also to the requirements under 40 C.FJR-
Pan 105?
Response: Not exactly. Those guidelines have not been amended since
they were promulgated. If they were changed, they would also be amended
under rulemaking procedures set forth in 6 U.S.C. §553. However, the
regulations io 40 C.F.R, Part 105 do not serve the same function as those
under Pan 124, of establishing minimum requirements for approvable State
NPDES programs. Thus the responses to your questions 3 through 5 above
are not applicable,
1 Editor's note: Not pnnled herein.
WATER POLLUTION 386
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373
TO i All Eegloa&l Counsel
FROM : Acting Deputy General Counsel
SUBJECT : Statements of Attorneys General Under 1402(b) of the
Federal Water Pollution Control Act
As you kaov, say State seeking to participate in the K?D£S nu*t
submit a statement froa the Attorney General, er the chief legal
el Hear, of a State's water pollution control agency, that the lows
of the State provide adequate authority to carry out the KPBES permit
progr«a. As part of the review is EPA headquarters of State program
sutatssioas, the Office of General Counsel reviews the State1*
statutes and regulations as explained and construed in the Attorney
General's statement,
The importance of these statements in detertining -whether the
State has the authority required by £402(b) of the Act and by EFA's
State Frogrss Guidelines cannot be overesphasized. A vell-vritten
statement can illuElnate tmede-sr statutory language^ explain
coastirutioa&l requireaeats, apply rules of construction unier State
law, and direct the re-viewer to the precise statutes, regulaticmt,
and judicial decisions which support the authorities cited in the
fora for use ijQ preparing Attorney General's Statecents which was
Co the Regional Adttinlstrators cm March 28, 1973, by the
Administrator for Enforcement and General Counsel. Such a
caa grtstly facilitate review mad, if possible, approval of
State programs.
A suaier of the gtateacstE which havt been submitted, howrrer,
have btea immdequate. It is mot ordinarily sufficient for a statement
to aerely list the statutes sad regulation! rtiich ere cited to «ipport
required authorities. For example, statements have been submitted
vhich, for aany authorities, simply cite without discussion all or taste
cf the State's water pollution control statutes and regulations. Such
-------
•tmtount* Bay la the future be returned" to^bt State for rerttlcm
before an application, will be considered complete. Eerie*? of suea
a ststeaemt a*y veil entail considerable delay in consideration ' ' '
of the prograa. Where doubt ejciets as to tbe existence of adequate
authority, the lack of en adequate explanation in tht etatessest of
the Attorney General can only serve as an obstacle to prograc approval.
The attached statement was suhcltted by the Attorney General
of the State ef Mipjii^aa- TbJ,B statement containc an excellent'"
dlicucslon of the State's legal authority. The existence of required
authorities is established by discussion of relevant statutory
provisions. Problem «xeas are candidly identified and discussed •
in detail. ' - -• .'« • • •
Even this excellent statement could bt improved by diitcussion
of regtilations promulgated to establish specifically the required .
authorities. Kerertbaless > this statezse&t has been extremely helpful
in ear review of the Michigan program; . , •
Regional offices should make every effort to vork vith the Stats*
to dymre that each program s-ubslttfed insludts an Attorney General's
Statement discussing the requlre4 authorities in, vufflclent detail.
Mot all Attorney General's Stateaeots oust be as le>hy as tb«
Michigan stateaent. Conciseness 1» preferable to length. ^ Bfivevar,
the iliehigan statement nay prove useful a* a taodel la indicating
the range and detail of discussion which has b-M&n found useful. ~
Robert V
AGDW:AKEckert: cam: 9-11-73 •
NOTE:; The Michigan. Attorney statement -.has• been ora.tted;"see
the >bdel" Attorney '-'.Statement in :tKe Appendix -• '_•
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GENERAL COUNSEL OPINION
JULY 23, 1973
Regulations Which Musi Be Promulgated Prior to Submission of
Attorney General's Statement in Connection with Approval of State
NPDES Programs
Federal Water Pollution Control As— Section 402(b) — Regulation*
which must be promulpte«J prisr to lubmisiion of Attorney General's
statement in connection with approval of State NPDES programs — All
authority cited by State Attorney Gtneral as authority tdequais 10 meet
reqiureneno of Section 402{b) of the Act must be in the form sf
lawfully promulgated Stite statutes, and must be ia full force tnd effect
it the time the Attorney General signs the statement — Administrator
cannot legally approve State program until each of the authorities cited
in Appendix A ($402(b)} am be dcnonsirtied to exist — Ooly excep-
tion to these requirements are authorities which are purely ministerial in
nature and which, there/ore, need not be established by regulations prior
to submission of Attorney General's suteraest.
Several regional offices have inquired which of a Slate's regulations must
be promulgated and in effect prior to the submission of the Attorney
General's statement required by §402(b) of the FWPCA. This memorandum
provides clarification of this issue,
§124.3 of EPA's State Program Guidelines provides as follows:
All authority cited by the Stite Attorney General as authority ade-
quate to meet the requirements of f 402{b) of the Act (a) shall be in the
form of lawfully promulgated State statutes and (b) shall be in. full
force and effect at the lime the Attorney General signs the Attorney
General's statement,
In other words, the statute requires that all of the authorities listed in
|402(b) must be in full force and effect before the Administrator may
approve a State's program. It was lo di*pel doubt as to the required extent of
authorities under |402(b) that Appendix A, the form of Attorney General's
statement, was developed. Although Attorney General's statements are not
required to follow this format precisely, they must cover every authority
cited in Appendix A and must identify, for each authority listed in the
Attorney General's statement the applicable Suie-statutes or regulations. It
is our view that Appendix A embodies the minimum state authorities
necessary to support approval of a program — that is, the Administrator
could not legally approve a program where each of these authorities eeuld
not be demonstrated to exist,
For ihh reason, it would not suffice for t State to submit an Attorney
General's statement based upon a broadly worded statute conferring discre-
tionary authority upon (for example) the Director of a State agency to adopt
regulations which would constitute an approvable program. In such cases,
173 WATER POLLUTION
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GENERAL COUNSEL OPINION DATED JULY 23, 1973
regulations must be promulgated and in force at the time that the Attorney
General's statement is submitted, and the regulations must encompass the
full range of authorities required by the Act and Appendix A. For example, a
state statute might authorise the director of the State water pollution control
agency to issue permits under "such regulations as he deems appropriate." In
such a case, regulations must be promulgated and in force providing that the
director shall apply effluent limitations and standards under §§301, 302, 306.
307 and 403 of the Act.
The only exceptions to the requirements outlined herein are those authori-
ties required in paragraph 8 of the Attorney General's statement which are
purely ministerial in nature — for example, authority to transmit documents
10 and from the Environmental Protection Agency, or to provide public
notice of proposed permit issuance actions. It is expected that these purely
ministerial acts will be accomplished pursuant to the permit program agree-
ment between the State and EPA, and the details of such procedures need
not be established by regulations prior to the submission of the Attorney
General's statement.
WATER POLLUTION 174
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GENERAL COUNSEL OPINION
DATED FEBRUARY 14, 1973
Conflict of Interest—EPA Guidelines
Federal Water Pollution Control Act — Section 304(h)(2)(D) — Con-
fiiet of Interest — leforc final approval of its permit program, State .
muss certify thai its board membership complies with Act's conflict of
imeresi provision —• Suit employment does not disqualify employee
from board membsnhip, tines State departments and agencies »r« not
deemed to be "permit holders or applicants for a permit" within mean-
ing of Section 124,94(e) of guidelines — Municipal employment does
not disqualify employee, is municipalities hive no responsibility under
Section 4Q2 to administer permit program — Federal employees ire not
disqualified since EPA, rather than State board, will issue permits to
Federal facilities — Corporate or institutional employment disqualifies
individual from board membership whenever corporation or institution
operates facilities subject to permitting under Section 402 — Where
individual is owner or pinner of firm which receives significant income
from permit holders or applicants, such owner or partner is disqualified
from board membership; the disqualification arises even though the
individual's work for & client permit bolder is not directly related to
pollution control preblems — Employee of a firm who a salaried U not
disqualified as bit income is not derived from client permit holders or
applicants —• Individuals whose employment income within the past two
yean derives from permit holder* or applicants; retired individtialf wbc
receive a significant portion (50%) of their income from permit holders
or applicants; tad individuate who receive significant stock dividends
from such byjiBesies ire disqualified from boarc membership —-
Recipients of mutual fund (diversified) payments, and individuals who
receive petition plin income where plan is under cor.irol of entity other
than former employer, ire noi disqualified from Ixsard membership —
Individuili receiving income from entity subject to permitting under
State or Federal legislation ether than FWPCA sre not thereby disquali-
fied — Disqualification of individual boarf members mty be mitigated
by re-trranging the final dteiiion-making procedure or by non-participa-
tion by disqualified board member* from nilings in which there would
exist a conflict of interest — Requirements of Section 304(h)(2)(D)
must be met immediately and compliance may not be deferred.
A great deal of discussion recently has centered around the application of
the conflict of interest provision in Section 304(h)(2); D) and EPA's Guide-
lines (Section 124.94) relating to State agency boarc membership.
The Act requires that a State requesting final approval of its permit
program submit a full and complete description of the program it proposes to
establish and administer under Suite law and a statement from the attorney
general that the laws of the Slate provide adequate authority to carry out the
described program, In addition, the Act requires that any State permit
145 WATER POLLUTION
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GENERAL COUNSEL OPINION DATED FEBRUARY S4, 1973
program at ali times be in accordance with the Guidelines promulgated
under section 304(h)(2), including the conflict of interest provision.
At the time the Slate requests final approval of its program the State must
certify that the board membership is in compliance with the conflict of
interest provisions. It is incumbent upon ihe State to make specific
determinations regarding the Qualification of individual board members.
Although the suit's certification of compliance wiih Section 304(h)(2)(D) is
not conclusive upon EPA, it should be given considerable weight in reviewing
the Stale's program submission.
An enormous number of questions may arise regarding the application of
the conflict of interest provision to specific cases. These questions require
both legal and factual deter mini tions. EPA bas a major responsibility to
provide guidance on the legal issues. With respect to factual determinations,
•however, the initial and principal responsibility should be exercised by the
States, For this reason, EPA regional officials should avoid making formal
determinations concerning application of the conflict of interest provision to
specific individuals, at least until after the State has submitted its application
for final approval of its permit program,
In order 10 assist the Regions and the States further it is desirable that
additional guidance be given on a number of -situations which occur fre-
quently in Stale board membership. The following is intended to provide
such guidance,
Governmem Employment
Stale tmphymeni. Marty state facilities will require Section 4C2 dis-
charge permits. If the term "permit holders or applicants for e permit"
included State agencies or facilities, all State officials and employees would
then be disqualified from membership on State boards, Since the Stale is to
administer the permit program, it would be impossible to apply an inter-
pretation of the statute requiring that a State employee be disqualified from
board membership where his only "conflict" is the receipt of income from the
state. Therefore, state department and agencies are not deemed to be permit
holders or applicants for a permit for purposes of this provision. This position
is set forth in section ]24.94(c) of the guidelines.
Municipal employment. Most, if not all, municipalities will have sewage
treatment works and other discharges subject to permitting under section
402. The rationale above relating to State agencies or departments docs not
apply to municipalities. Municipalities are subject to regulation under the
permit program in the same manner as other point source dischargers. They,
unlike states, however, have no responsibility under section 402 to administer
the program.
Federal employment.'EPA's proposed regulations for the Federal!) oper-
ated perm;1, program (38 F.R. 1362-1370, 40 CFR Pan 125) provide that
WATER POLLUTION 146
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GENERAL COUNSEL OPINION DATED FEBRUARY 14, 1973
**. . , with respect to federal agencies and instrumentalities,. . .the Adminis-
trator will continue 10 process permit applications in accordance with these
regulations and will be the exclusive source of permits." Although Federal
facilities must obtain discharge permits, an employee receiving a significant
portion of his income by virtue of Federal employment is not disqualified
since EPA, rather than any State board, will be issuing permits to Federal
facilities.
Corporals or Insinutionat Employment
In some instances, existing board members may receive income from
institutions or corporations which operate facilities subject to permitting
under section 402. It may be argued that such persons should not be
disqualified if they have no connection with the management or operation of
discharging facilities, or budgetary deeision-maldng thai would affect such
management. The conflict provision makes no such distinction, however, nor
can such a distinction reasonably be implied. Thus, even though the connec-
tion between the nature of employment of the individual and the operation of
a discharge facility may be tenuous or remote, it is clear that the provision is
lied to the receipt of income from the institution or corporation, and not the
nature of the person's position wiihin the institution or corporation.
It should also be noted that the statutory prohibition applies irrespective of
whether the employer is a non-profit organiLation such as a university or
research institution. The test is simply whether the employer is a "permit
holder or applicant for a permit,"
Professional Employment.
In many cases, existing board members such as lawyers, engineers or
stockbrokers may work for firms which do not have discharges subject to
section 402 (and therefore the firms themselves would not be "permit holders
or applicant"), but whose income is derived principally from clients with
discharges subject to section 402. If the person is an owner or partner of the
firm, such that he receives a direct share of the firm's profits, he then receives
income from clients who are or may be permit holders or applicants. In such
a case, if a significant portion of the firm's income (i.e., 10TC or more under
section 124.94(b) of EPA's Guidelines) ii received from permit holders or
applicants, the owner or partner would be disqualified.
Disqualification of owners or partners of such firms would be required by
ihe conflict provision even though the individual's work for a client permit
holder or applicant is not directly related to pollution control problems
arising under the FV/PCA. As noted in the preceding section, the provision
makers no distinctions concerning ihe nature of the tasks performed by the
individual.
An employee of a law firm, consulting engineering firm, stock brokerage
firm, or other similar professional organization (which itself is not a permit
147 WATER POLLUTION
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GENERAL COUNSEL OPINION DATED FEBRUARY 14. 1973
holder or applicant) receives a salary from the firm, and therefore does not
receive income from client permit holders or applicants by virtue of his
receipt of salary1 from such firm.
Special Categories of Income
Employment income within pas: .? years. Section 304(h)(2)(D) requires
disqualification of board members who have received 2 significant portion
(i.e., 10% or more) of their income from permit holders or applicants within
the preceding two years.
Retirement income. Even though one is presently retired from employ-
ment by a permit holder or applicant and is receiving retirement income
rather than an employee salary the conflict provision would require
disqualification if he receives a significant portion of his income from such
source. However, since a retired person's future income status generally is
less tied to his former employer's interest than would be the case if he were
currently employed by a permit holder or applicant, the Guidelines provide
that the term "a significant portion of this income" shall mean 50% of gross
personal income for a calendar year if the recipient is over 60 years of age
and is receiving such portion pursuant to retirement, pension, or similar
arrangement.
Income from diversified investments. The Guidelines provide in Section
124.94(e) that "income is not received directly or indirectly from permit
holder or applicants for a permit" where it is derived from mutual-fund
payments, or from other diversified investments over which the recipient docs
noi know the identity of the primary sources of income.
Pension plan income. Pension plans normally are set upas separate ;rusts,
or other distinct legal entities, not subject to direct control by the employer,
and provide periodic benefits to retired employees. Amounts received by
particular beneficiaries are fixed according to the plan and are unrelated to
the current fortunes of the employer. Therefore, where a board member
receives income pursuant to a pension plan under the control of an entity
other than his former employer, this income would not appear to produce a
conflict within the scope of section 304(h)(2)(D), even though ihe income
received may exceed the applicable retirement income percentage,
Stock dividends. Even though stock dividends ordinarily could nc; be
affected by a company adversely to the interest of a board member err.itled
to receive dividends, the amount of such dividends would be directly nsd to
the fortunes of that business and/or related businesses. If the amount c:" such
dividends, either separately or together with other income, exceeds the
applicable percentage the recipient would be disqualified from serving on the
beard. Therefore, stock dividends are specifically included within the term
"income" under section 124,94(d) of the guidelines.
WATER POLLUTION MS
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GENERAL COUNSEL OPIKTON DATED FEBRUARY 14, 1973
Permit holders or applicants other ihan under she
There is no indication in Section 304(h)(2)(D) that the conflict of interest
provision is intended 10 be one broadly aimed at excluding conflicts with
respect to permits not issued under the Federal Water Pollution Control Act.
Therefore, if a board member receives or has received income from a
company or other entity which is subject to permitting under State or
Federal legislation other than the FWPCA (e.g., air or solid waste permit
requirements), such income would not require disqualification under section
304(h)(2)(D).
Directors, Executive Secretaries or other employees of a State Board
The guidelines provide that the term "board or body" includes any
individual including the Director, who has or shares authority to approve
permit applications or portions thereof either in the first instance or on
appeal. Therefore, any Director or other employee who has authority, in ful)
or in part, to approve permit application and who either currently receives or
has during the previous 2 years received !0% or more of his gross persona!
income from % permit holder or applicant is disqualified from serving in the
position indicated above.
Board relationships which may mitigate the consequences of a conflict
with Section 307(h)(2}(D).
Assuming that one or more board members fall within the conflict of
interest provision, various proposals hive been suggested to make it possible
for the State to retain these board members and continue to operate its
permit program under other organizational arrangements.
Removal of permit issuing decision from the Board. A State may wish to
place the responsibility and power to make final determinations on permit
applications on an employee of the board, such as a Director or Executive
Secretary. For his proposed arrangement to comply with section 304
(h)(2)(D), and EPA's Guidelines {Section 124.94(a)), the Director or other
employee would have to have complete authority to rule on permit applica-
tions, and he himself must be free of a conflict of interest. In order to
maintain the insulation of the board from the decision on individual permits,
a right of appeal to the full board would not be permissible. In addition to
the authority to issue permits, the employes also would have to have authori-
ty to perform other acts necessary to the administration of the permit
program as required under section 4Q2(b) and EPA's Guidelines. Otherwise,
the mere insulation of the issuance function probably would not be sufficient
to remove the board from the thrast of section 304(h)(2)(D) to eliminate
conflicts which would tend to inhibit aggressive administration of state
permit programs. Finally, the Director must be able to issue permits, >nd
otherwise independently administer the permit program, without being sub-
ject to control by a State board which does not mee; the requirements of
section 304(h)(2)(D).
149 WATER POLLUTION
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GENERAL COUNSEL OPIKJOK DATED FEBRUARY 14, 1973
fton-participation by a board on certain permit applications, It has been
suggested thai the conflict of interest provision might be avoided by requir-
ing i member with a conflict to abstain from ruling upon permit applications
in which he has or may have an interest which causes a conflict. This is not a
viable alternative, in view of the fiat proscription against board membership
where the particular member has received a significant portion of his income
from permit holders or applicants, Since the provision applies to permit
holders, as well as applicants, there would be a continuing conflict.
Application of Section 3Q4(k)(2)fDI immediately or through attrition. It
may be suggested that the requirements of section 304(h)(2)(D) can be
applied as and when vacancies on Siate boards occur, rather than im-
mediately. Section 304(h)(2)(D) is part of a series of requirements which
mast be met by States prior to approval of their permit programs. Therefore,
deferral of compliance with the provision during £ transitional period cannot
be permitted under the statute.
WATER POLLUTION 150
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GENERAL COUNSEL OPINION
DATED MAY 31, 1973
State Permit Program Authorities — Civil and Criminal Penalties
Suit permit program authorities — Civil and criminal penalties —
Section 402{b}("), FWPCA, }9~2 amendments — Maximum civil
penalties and civil ftnes recoverable under State law must be comparable
to maximum amounts provided in FWPCA. Section 309, or mu$,\
represent actual and substantial economic deterrent — EPA policy is to
require states to impose maximum penalties 8Jid fines of SI0.000 and
S25.000, respectively, as provided in Section 309 — In states where
lower penalties and fines constitute actual and substantial deterrent.
EPA will consider requests for approval of lower maximum amounts, but
in no case lower than maximum civil penalty of S5.000 £ day, and
maximum criminal penalty of 510.000 a day — In order 10 qualify for
lower maximums. Slate must be gne with only small number of major
dischargers; discharges mtist be sufficiently small so that lower fines
would be effective deterrent; and program muii be otherwise acceptable
— EPA will also approve those State permit program* where, in reliance
upon representations by EPA officials, Sute has enacted legislation with
lower penalties — Burden is on State to demonstrate that it mesa
criteria set forth above in order to qualify for approval of lower penalties,
EPA will also approve those Sute permit programs where, in reliance
upon representations by EPA officials, Sute has enacted legislation with
lower penalties — Burden it on Sute to demonstrate that it m«u
criteria tet forth above in order to qualify for approval of lower penalties.
There has been a great deal of discussion — and some degree of confusion-
over the past few months regarding EPA's guidelines for Sute civil and
criminal penalties under Section 402(b)(7) of the 1972 Amendments to the
FWPCA. As you know, the Sute Program Guidelines, published on
December 22, 1972, rtquire thai such penalties must "(1) be comparable to
similar maximum amounts recoverable by the Regional Administrator under
Section 309 or (2) represent an actual and substantial economic deterrent to
the actions for which they arc assessed or levied." There have been varying
interpretations, however, of the meaning of "comparability" and "actual and
substantial economic deterrent."
The controlling Agency policy was set forth in Instructions and Comments
attached to "Appendix A to Instructions for Approval of Sute Permit
Programs," the State Attorney General's Statement distributed to the re-
gions on March 28, 1973. Point lib of the Instructions and Comments
provides:
The maximum civil penalties and criminal fines recoverable under
State law must be comparable to maximum amounts provided in Sec-
tion 309 of the FWPCA or must represent and actual and substantial
economic deterrent. This means, in applying either criterion, EPA
177 GENERAL & ADMIN.
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GENERAL COUNSEL OPINION DATED MAY 31, 1973
expects that such maximum penalties and fines be equal to or of the
same order of magnitude as the amounts provided in Section 309.
Our policy is to require Slates to have authority to impose maximum
penalties and fines of $10,000 and 525,000, respectively, as provided in
Section 309. We believe that adoption of these statutory penalties is essential
in almost every State for an effective program. There may be a few Stales in
which lower penalties would constitute an actual and substantial economic
deterrent Accordingly, we will consider requests for approval of a Slate
program providing maximum penalties lower than those set forth in Section
309. but in no case less than a maximum civil penalty of 55,000 a day, and a
maximum criminal penalty of 510,000 a day, in those few instances where:
(1} There is only a small number of major dischargers within the Slate;
and
(2) Most of the industries discharging within the State have sufficiently
low earnings that the proposed lower fines would constitute an effec-
tive deterrent; and
(3) The program is fully approvable in every other respect.
There are, in addition, apparently five States in which decisions regarding
maximum penalties have been taken in reliance upon representations by
EPA officials that maximum civil penalties as low as 55,000 a day, and
maximum criminal penalties as low as 510,000 a day, would be acceptable.
EPA has an obligation to minimize the burden which would be placed upon
these States by inflexible application of the policy set forth above. Accord-
ingly, we will consider approval of these few state permit programs where, in
reliance upon representations by EPA officials, the State has either enacted,
or has laken substantially irrevocable decisions toward enacting, legislation
with lower penalties than those set forth in the statute. Where such a
program is approved, the State will be advised in the approval letter thai n
will be expected to request its legislature, as soon as possible but not la;e:
than the next legislative session, to establish maximum penalties equal to
those in the statute. In no case will a program be approved which includes
less than a maximum civil penalty of 55,000 a day and a maximum criminal
penally of 510,000 a day.
According to our most recent information, 27 States have either enacted
or proposed legislation establishing maximum penalties and fines of 510,000
and S25,000, respectively. We must make it clear to these States that we
strongly support their efforts in this regard, and we must keep to a very bare
minimum the number of programs approved with lower penalties. Quit:
apart from the potential dampening effect on State enforcement efforts, an>
indication from EPA thai we would be willing to accept lower penalties
except in the strictly limited circumstances set forth herein, would amount to
a failure to keep faith with those Stales which have sought or are seeking tc
obtain the statutory maximum penalties. For this reason also, it bears
GENERAL &. ADMIN. 178
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GENERAL COUNSEL OPINION DATED MAY 31, 1973
emphasis that any State seeking approval of a program providing lower
penalties must earry the burden of demonstrating thai it meets the criteria
set forth in this memorandum.
178,3 GENERAL & ADMIN.
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GENERAL COUNSEL OPINION
DATED JANUARY 24, 1973
Approval of State Permit Program (Section 402(b))
Where Division of Authority Exists
Federal Water Pollution Conirol Aci — Section 402 (b) Permits —
Division of authority — Slate permit program qualifies for approval
under Section 402(b) even tiough more than one Sute igency his
permitting authority — Case-by-case determination will be made a& to
whether each »gency must be vested with all permit authority in order to
maintain effectiveness of Suit's permit program — Where authority of
itcond agency Ls limited. Attorney General should indicate how tecond
agency will coocdinsvt with primary permit agency wi;b respect to
monitoring and enforcement.
Your memorandum of December 2°, 1972, requests an opinion &£ to
whether a State permit program may qualify for approval under section
402(b) of the F"WPCA where more than one Sute agency has permitting
authority. Your memorandum slates that in ihe State of Washington, the
Thermal Site Council grants permits for discharges from thermal electric
generating stations, although general authority to grant discharge permits is
in the Department of Ecology, In Idaho, the Department of Water Adminis-
tration has authority to permit discharges into wells, although general
permitting authority is in the Department of Environmental Protection.
There is nothing in the FWPCA or in the EPA Guidelines published
December 22, 1972 (37 FR 28390), thai requires all permitting authority 10
be vested in one State agency in order for the State permit program to obtain
Federal approval under section 402(b). The basic requirement of section
402(b) is that "the laws of such State* • "provide adequate authority to
carry out the described program." Neither this language, nor any language
in seciion 304(h)(2) or in the EPA Guidelines, indicates that the authority
must be vested in a single agency. The several references in the EPA
Guidelines to "any State or interstate agency participating in the KPDES"
(e.g., §§124.2!, 'l24.24, 124,31, 124,34, 124.35} were not intended to
preclude a division of permit issuance authority as described in your
memorandum. Accordingly, in my opinion the division of permit issuance
authority described in your memorandum among more than one Sute
agency would noi prevent Federal approval of the State permf. program
under section 402(b).
Your memorandum also asb whether, if more than one State acency may
have permitting authority, must all the authority described ir, the EPA
Guidelines must be vested in each agency. In determining whether all the
authority described, in the EPA State permit program guidelines must be
vested in each Slate agency authorized to issue permits, the key question is
whether any sharing of authority which is permitted will operate to detract
from the overall effectiveness of ihe State's permit program. This clearly will
157 WATER POLLUTION
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GENERAL. COUNSEL OPINION DATED JANUARY 24, 1973
be a case-by-case determination. I suggest that as a minimum the Attorney
General when writing his opinion as required under section 4Q2(b) of the
FWPCA_ identify those instances where the second agency does not have its
own statutory authority or procedure for carrying out an activity required
under the Act or ihe Guidelines. In each of these instances the letter should
indicate how the second agency will coordinate with the primary permit
issuing agency to accomplish the task required (e.g., monitoring or enforce-
ment). In addition, the letter should state that no conflict of authorities exists
which would preclude the effective operation of the permit program for those
permits issued by the second agency (e.g., legislation requiring specific
matters to be taken into account with respect to power plant discharges that
may be at variance wiih effluent standards and limitations under the
FWPCA; requirements for board membership which violate the confiict of
inieresl clauses in section 304(h)(2)(D) of th: FWPCA}.
WATER POLLUTION 138
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UNITED STATES ENVIRONMENTAL
WASHINGTON. D.C. 204W
JAN (5 1982
MEMORANDUM
SUBJECT: Approval of Partial State NPDES and
Section 404 Programs
FROM; Robert M. Perry
General Counsel (A-131)
TO: Bruce R. Barrett
Acting Assistant Administrator
for Water (WH-446)
Question 1 :
Does the Clean Water Act (CWA) authorize EPA to approve
partial state NPDES programs? If so, are there limits on the
or natare of partial approvals?
Answer ;
The CWA probably authorizes partial approvals where a state
has ceded its authority to an interstate agency for certain water
bodies. The Act also probably allows approval of a state program
which does not cover Indian activities on Indian lands (because
Congress has not expressly granted the state regulatory authority
over these activities). With these exceptions, partial approvals
- whereby the state would issue permits for some categories of
dischargers and EPA would issue permits for the remainder -
appear to pose severe legal risks under the Clean Water Act.
Discussion;
Section 402(b) of the CWA authorizes any state that wishes
to administer its own permit program to submit to EPA a description
of the program "it proposes to establish and administer under
State law or under an interstate compact," Under §4Q2(c}(l)»
within 90 days of the state's submission, EPA must suspend its
issuance of NPDES permits "as to those navigable waters subject
to such program" unless the agency determines that the program
fails to meet the federal statutory or regulatory requirements.
" £ E?A must suspend its issuance of perrr.it s "as to those navigable
-aters sjtnect tc [a state's] prograr., " it fcll?v£ ihit t±^ ^vit±-
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must issue all permits for discharges into those waters. The
legislative history confirms this reading. I/
Senate Report states that "after a State submits a
program which meets the criteria established by the Administrator
. . ., the Administrator shall suspend his activity in such
State under the Federal permit program." 2 A_ j^e g is jLa/t ive History
of the Water PollutionCon't r_o_l _A_cjt Ame n d me n_ts"~o f "~1"97T^ 93d Cong".
1st Sess., 1489 (Comn. Print 1973). (Hereinafter "Leg. Hist.")
Moreover, the House Report stated that under §402(b) "a state
desiring to administer its own permit program for discharges
into the navigable waters within _its__ jurisdiction may submit its
program to the Administrator." (Emphasis added.) 1 Leg. Hist.
813. Rep. Terry stated that one of the purposes of the bill was
"to .assure and encourage full imp1ernentation of permit issuing
authority to States which are qualified and have approved programs,
(Emphasis added.) 1 Leg. Hist. 580. Similarly, Rep. Harrington
stated that "the permit program must be put solely in the hands
of the States" once they meet the applicable federal requirements.
{Emphasis added.) 1 Leg. Hist. 516. The Conference Report discus-
ses §402 as providing for a state "to administer its own permit
program j.n lieu of the Admin is tractor' s program." (Emphasis added.)
I Leg. Hist* 322. Rep, Roe said that a state would apply "for
the program in the State" and upon approval by EPA would take
over "the program.™ 1 Leg. Hist. 428. Thus, the legislative
history strongly indicates that Congress* understanding was that
states were to taJce over the entire NPDES program. See also 1
L_e_g._ Hist. 466 (Remarks of Rep. Dorn), 577 (Remarks of Rep.
Reuss), 579 (Remarks of Rep. Roe), 854 (Remarks of Administrator
Ruckelshaus).
This view is reinforced by an examination of §402(a)(5).
Section 402(a)(5) of CWA provides for state issuance of NPDES
permits during the interim period between passage of the Act and
EPA's promulgation of §304{i)(2} guidelines specifying minimum
I/ The Agency's historical construction of the Act offers little
"assistance. In 1972, EPA adopted initial State NPDES program
requirements under §304 (i) of the CWA. 37 Fed. Reg. 28390 (Dec. 22,
1972). In §124.10, EPA required that State programs cover all
point sources, In a comment appended to that section, the Agency
suggested that a State's failure to comply could be grounds for
EPA to disapprove the program or to decline to suspend permit
issuance for the "categories, types, or sixes of point sources"
not covered by the State program. _IcL at 28292. No partial
programs were ever approved, however, and in 1979, EPA adopted a
flat prohibition on partial approvals, 40 C.F.R. §123.1 (comment),'
44 Fed. Rea. 32918 (June 7, 1981). It does not appear that the
i ec;¥TTty'~o? partial approvals was ever examinee in detail in
connection with either rulernaking.
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-3-
requirements for state programs (the guidelines were promulgated
in December 1972). Section 40'2(a)(5) requires that EPA authorize
.ny state/ which the Agency determines to be capable of administering
a permit program that will carry out the objectives of the Act,
"to iisue permits for discharges into the navigable waters within
the jurisdiction of such State," This language indicates thit
the interim state program was to be a full NPDES program covering
all state waters. The statement of Representative Wright, a
leading sponsor of the Act, supports this reading of section
4Q2(a)(5);
The interim program is' not intended to be
approved on a piecemeal basis. The
managers understand the language of the
conference report to require and they
expect the Administrator to authorize the
State to handle the total permit program
during this interim period and the Admin-
istrator is not authorized to delegate
bits, pieces, categories, or other parts.
Be must authorize the State to carry out
the full program for all categories of dis-
charges. 1 Leg. Hist. 261.
The fact that only full state NPDES programs could be
approved in the interim period further suggests that only full,
permanent state programs could be approved. It seems unlikely
that Congress would require only full programs for an interim
period, but allow partial permanent programs. 2/ Again, the legis-
lative history supports this conclusion. Rep, Wright stated
£/ In §402(c)(l) Congress authorized EPA to withdraw approval of
a state program EPA found not to be administered in accordance
with federal requirements. There is overwhelming evidence that
Congress authorized withdrawal only of the entire state program
and prohibited withdrawal of parts of a program. For example,
Congress rejected an Administration proposal to allow EPA to
withdraw approval of only part of a state program. 2 Leg. His_t.
1205; 1 Leg. Hist. 854-5; 2 Leg. Hist. 1189. ~See also 1 Leg.
Hist. 262 (remarks of Rep. Wright), However, this legislative
history is not dispositive as to partial approval of a program,
since Congress could conceivably have meant that even if a partial
program was approved, EPA could not withdraw only part of that
program. In EPA v. Calif orn_i_a ex rel. S t ate_ Water Res our ces
Control Be., 426 U.S. 200 (1976) (hereafter EFA v. California),
the Supreme Court found that this legislative history simply
indicated that States must "be given maximum responsibility for
the permit system and that the EPA's review authority be restricted
as much as v;as consistent with its r-v»raj.i re^p^,*^'. r.i •. * ~y mr
ass urine attainment of national ~oslE." ™ , *f. ""^ — '"* •
-------
that the interim permit program was meant to allow the continua-
tion of existing state programs, which "could be expanded and •
improved during this phase." (Emphasis added.) 1 Le_g. Hljt^
261= Ultimate approval was to be given to "the planned integrated
State permit program." (Emphasis added.) 1 Leg. jUjit.* 262.
Finally, it is clear that Congress )cnew how to expressly
provide for partial state program approvals in environmental
statutes. Section 110(a)(2) of the Clean Air Act thus provides
that "the Administrator shall approve. . . [a state implementa-
tion] plan, or an_y portion thereof," if he determines that it
meets federal requirements. And under Section 1422(b)(2) of the
Safe Drinking Water Act, the Administrator may "approve, disapprove,
or approve in part and disapprove in part," a State underground
injection control program. One cannot attribute too much weight
to Congress' use of different language in a separate statute,
but the omission of similar language in the CWA nevertheless is
some evidence that it does not authorize partial program approvals.
There are two circumstances, however/ under which partial
approval is probably lawful. In the first, a state has ceded
its authority over part of its waters to an interstate agency.
_3/ In such a case, the Supreme Court concluded, in ditrta, that
a" State may have a program which covers only the remaining waters,
EPA v. California., supra. The second case arises where a state
cannot, undeTr "Tea era! law, issue certain permits. _4/ Here, again,
it appears lawful for EPA to approve the state program if it is
otherwise complete.
It is less clear whether a State may voluntarily renounce
ajthority to issue NPDES permits for certain navigable waters
within its territorial jurisdiction. Except for the interstate
compacts referred to in the preceding paragraph, the general
structure of the statute's approval and disapproval process,
together with the legislative history recited above, pose serious
legal risHs for approval of any such partial program. It is
even more doubtful that the Clean Water Act and its legislative
3/ Section 402(b) allows programs to be submitted by an "interstate
"agency."
A/ In EPA v. Califprruj, supra, the Court said that "the EPA obviously
need notT and may not, approve a state plan which the state has no
authority to issue because it conflicts with federal law." Id* The
Court was referring specifically to permits for federal facilities,
which it held states had no authority to issue under the pre-1977 CWA.
The 1977 amendments to the Act lifted this prohibition. Under a -
similar rationale, the General Counsel has concluded that state
NPDES programs may not, absent "clear Congressional consent," be
grr-lied to Indian activities cr; a reservation. Letter from G. Willi.
Frick to Louis J. Brei^hurst, May 24, 1977
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— 5 -
history provide a basis for arguing that the Act authorizes any
other type of partial program (e.g., by industrial category).
Question 2:
Does the CWA authorize EPA to approve partial state section
404 programs? If so, are there limits on the scope or nature of
partial programs?
Answer:
The language in section 404 concerning the effect of program
approval is different from that in section 402. Because of this,
the argument for approval of partial section 404 programs is some-
what more plausible than that for approval of partial section 404
programs. However, most of the legislative history and statutory
construction problems associated with partial section 402 programs
also apply to section 404, with one exception. The CWA does
clearly authorize EPA to approve state section 404 programs which
do not cover certain traditional navigable waters and adjacent
wetlands.
Discussion:
Section 404 authorizes states to submit to EPA for approval
"permit program[s] for the discharge of dredged or fill material
into the navigable waters." However, under section 404(g), states
are prohibited from assuming administration of the program for dis-
charges into "waters which are presently used, or are susceptible
to use in their natural condition or by reasonable improvement
as a means to transport interstate or foreign commerce shoreward
to their ordinary high water mark, including all waters which are
subject to the ebb and flow of the tide shoreward to their mean
high water mark, or mean higher high water mark on the west coast,
including wetlands adjacent thereto.". In this sense, therefore,
all state programs must be partial programs.
The real question is thus whether EPA can approve state
section 404 programs which only partially cover the remaining
navigable waters in the state or which are otherwise incomplete.
The statutory obstacle to partial approval of section 402 programs,
as noted above, is the requirement that EPA suspend issuance of
permits "as to those navigable waters" regulated by the State.
By contrast, section 404(h)(2)(A),(3} and (4) require the Corps
of Engineers to suspend issuance of permits "for activities with
respect to which a permit may be issued" under the State program.
On its face, this cistinctiTT b=*:i-'eer. the t'-'c rcrtirr.r "h" the
case fcr partial section 4C4 spprovalr. :?,cre p^i«wi~_^, ---•
some risk remains, because Congress probably had another meaning
in mine fcr the section 404 lancjaoe cited above.
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reference to "activities" regulated by the State more
reasonably refers to the fact that only certain classes of dis-
charges ara regulated under the section 404 program in the
first place, that is, discharges of dredged and fill material.
While the state may choose to regulate other activities in a
combined program, only the activities involving discharges of
dredged or fill material are affected by the approval process
under section 404(h). The language could also refer to the
exemption of certain dredging and filling activities from regula-
tion under Section 404. Bee^ $404(f).
There is no language in the legislative history directly
addressing the issue of partial program approval in a manner
comparable to the statements relating to the NPDES program (see
discussion of Question 1, above). Bowever, there is clear evidence
Congress intended state section 404 program approval to be modeled
after NPDES approval.
The statutory language concerning program requirements
and procedures for approval is essentially identical under the two
sections. In addition, there are express statements in the legis-
lative history that the state program provisions in section 404
were modeled after those in 402. For example, the Senate report
observed/
By using the established mechanism in Section
402 of Public Law 92-500, the committee
anticipates the authorization of State manage-
ment of the permit program will be substantially
expedited .... The use of this mechanism will
also expedite state authorization because the
Administrator only has to amend guidelines under
section 304 [(i)](2) of the Act to establish the
procedures and other requirements that a State
must meet to achieve approval of its program.
4 Leg. Hist. 710-11. 5/
See also comments of Senator Stafford, 4 Leg» H i _st. 913.
The Conference report futher emphasises tr.e similarities
between state NPDES and section 404 programs. "The authority
which the State must have in order for the program to be approved
is essentially the same authority it must have to administer a
402 permit program under the Act." 3 Leg. jSis^t. 285. The report
goes on to refer to section 402 as the section "after which the
Conference substitute concerning State programs for the discharge
of dredged or fill material is modeled.1" Id. at 288, See also
comments of Rep. D1 Amours, 3 Lee. Hist* 3T5"-5 9.
5/ Although the Senate bill included the state section 404
programs in an amendment to section 4C2, and those provisions
were later moved to section 404, no significance should be
attached to the move. See statement of Senator Muskie, 3 Leg.
Hist. 470=
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ -^H^» * WASHINGTON, D.C. 20460
it, rm-n.^%.1*
SEP 20 iS85
MEMORANDUM
SUBJECT; Guidance on Obtaining Subnuttal and Implementation
of Approvable Pretreatment Programs
FROM: Glenn L. Unterberger >^<^^, /
ate Enforcement Counsel
for Water
Rebecca Hanmer, Director
Office of Water Enforcement and Permits
TO: Regional Counsels, Regions I - X
Water Management Division Directors
Regions I - X
Attached is a guidance memorandum on obtaining POTW
pretreatment program suomittal and implementation. The guidance
confirms and elaborates on Agency enforcement and permitting
policy positions which we already have discussed at our national
meetings/ and which we already are largely implementing in the
context of rr.eeting FY33 S?MS commitments arvd through EPA's
POTW Pretreatment Program Enfdrcement Initiative. The major
points which tnis guidance reaffirms are:
- that EPA is in the strongest position to bring an
enforcement action 'against a POTW for failure to
obtain or_ implement an approved pretreatment program
when there is a requirement to do so in the POTWs
permi t;
- that POTW permits which do not contain these permit
requirements should be modified or reissued as
quickly as possible;
- that in a limited number of cases, EPA can consider
the possibility of an enforcement action to require a
POTW without a modified permit to obtain or implement
an approved pretreatment program, and
- that in bringing a judicial enforcement action for
failure to obtain or implement an approved pretreat-
ment program, EPA typically should also file claims for
any existing NPDES effluent limit violations.
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- 2 -
Our objective still is to have all required POTW
pretreatment programs approved or subject to a 'judicial referral
by the end of FY85. Early in FYS6, we would expect to address
any remaining unanoroved POTWs and to begin focusing increased
attention on adequate oret reatmer.t program implementation.
Attachments
cc: Coke Cherney
Bill Jordan
Martha Prothro
OECM Water Attorneys
David Buente
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GUIDANCE ON1 OBTAINING SU3MITTAL AND I^PLEMEN'TATI:
OF APPROVABLE PRETREATMENT PROGRAMS
Summary
40 C.F.R. §403.8(b) establishes certain pretreatment
requirements for any POTW with a design flow greater than 5 ' '
million gallons per day (mgd) and which accepts pollutants
from Industrial Users which pass through or interfere with the
operation of the PCTW or are otherwise subject to pretreatment
standards as well as for other POTWs as determined by the
Approval Authority. Specifically, the regulation requires these
POTWs to "...receive approval of a POTW Pretreatment Program
no later than...July 1, 1983..." and that the approved pretreat-
ment program "...be administered by the POTW to ensure compliance
by Industrial Users with applicable pretreatment standards and
requirements."
This guidance addresses POTW's previously identified as
needing pretreatment programs. This Guidance should be utilized
in selecting the most effective approach to ensure that
non-approved POTW's requiring programs in your Region obtain
pretreatment program approval as soon as possible and that
POTWs with approved programs implement them properly and
expediticusly.
The requirement to obtain approval -: and to implement
a pretreatment program should be incorporated in a POTW's
NPDES permit. Where a POTW meets the cri-.eria of 40 C.F.R.
§4.03. 8{a) and its permit does' not contain the requirement
to obtain approval of and implement a pretreatment program,
the Region should expeditiously modify the POTW's permit
—or request an approved State to do so--to incorporate such
arequirement.
In general, to enable EPA to bring an enforcement
action for failure by the POTW to either cbtain an approved
pretreatment program or implement its pretreatment program,
a POTW's NPDES permit should either contain such a requirement
or be modified or reissued with such a requirement. For a POTW
that has failed to obtain or implement an approved pretreatment
program--if EPA is the pretreatment Approval Authority—EPA
should pursue a judicial enforcement action under Section 309(b)
and (d) of the Clean Water Act to obtain compliance and civil
penalties: where an ap'proved State is the Approval Authority,
EPA should urge the State to bring a comparable enforcement
action and bring a federal enforcement action if the State
fails to take timely and appropriate action. An alternative
legal theory, available in a limited number of cases, to require
a POTW without a modified permit to obtain or implement an
approved pretreatment program, is discussed on pages 5 and 6.
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2 -
Background
Section 307(b) of the Clean Water Act requires EPA tc
promulgate pretreatment: standards to prevent Interference
or Pass Through by toxic pollutants introduced into a POTW.
Section 402(a)(3) of the Clean Water Act establishes a system
whereby, NPDES permits would require POTWs to implement and
enforce pratreatment standards. 40 C.F.R. §§403.8 and 403.9
outline the requirements for a pretreatment program to be
developed, approved and incorporated in a POTW' s NPDELS permit
by July 1, 1983.
When 40 C.F.R. §403.8(b) was prcmu Igated, in was anticipated
that the requirement to obtain approval and implement a pretreat=
r.ent program would be promptly incorporated in applicable 1-JPDES
permits as provided in 40 C.F.R. §403.8(d) and (e), §403.10(d),
§122.62(a) (7), and § 122.62(a ) (9). While most POTW permits have
been modified, many remain that have not been modified to
contain the requirement to obtain program approval and implement
the approved program. Also, many POTWs with modified permits and
POTWs with unmodified permits have not yet obtained program approval,
even though the deadline prescribed by 40 C.F.R. §403.3(b) for
obtaining program approval has passed. To successfully carry out
the pretreatment provisions of the Clean Water Act, the Agency
must ensure that every POTW which needs a pretreatment program I
submit an approvable pretreatment program and obtain program
approval as soon as possible.
Enforcing a^ Permit Requirement to Develop a Pretreatment Prgcrarn
Where a POTW's permit does contain a requirement to obtain
and implement an approved pretreatment program and the POTW has
failed to comply with the. permit requirement and any Administrative
Order issued by the Approval Authority requiring the POTW to
obtain and implement its pretreatment program, the Approval
Authority should initiate judicial enforcement. It should be
noted that a judicial enforcement action can be initiated
without prior issuance of an Administrative Order. Particularly,
with regard to failure to obtain program approval by this time,
the Approval Authority should judicially enforce a permit
requirement to obtain program approval through a court action
without first issuing an Administrative Order.
The decision to initiate an enforcement action for failure
to obtain an approved pretreatment program or for failure by the
POTW to implement an approved pretreatment program should be
based on factors such as the severity of the POTW's noncompliance,
such ass (1) degree of disregard by the POTW for pretreatmant
requirements; (2) evidence of water quality impacts, interference,
pass-through, or sludge contamination resulting from failure
to have an approved program in operation; (3) failure by the
POTW even in the absence of an approved program to obtain
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compliance by industrial users with applicable nretrea tm.er.t
standards and requirements: (4) existence of other NPDES permit
violations. While these factors relate to ranking the severity
of noncorr.p lying PCTW' s, their absence does not preclude judicial
enforcement.
An SPA enforcement action for failure to obtain oroaram
approval as required by a POTW's permit is tahen under Section
309(b) for failure of the PCTW to cc.Tply with requirements in
its permit that were established under authority of Section
402(b)(8) and its implementing regulations for the purpose
of implementing the pretreatment provisions of Section 307.
All such cases should result in an expeditious compliance
schedule for obtaining an approved program (see Attachment A_] ,
reporting requirements, significant civil penalties that consider
economic benefit and address the gravity of the violation,
and any provisions necessary to ensure program implementation.
An EPA judicial enforcement action for failure to implement
an approved pretreatment program as required by a POTW ' s permit
is based on the same statutory requirements. A1-1 "failure to
implement" cases should result in specific implementation
activities (e.g., permit issuance, inspections, enforcement
response) by specified dates, progress reports, and significant
civil penalties.
Requiring Development and Implementation if a Local Pretreatment
Prearam Throuch Permit Modification cr Re issuance
If a POT'.1.' that is required to administer an approved
pretreatment program does not have or is not implementing one
and is not currently required by its MFDES permit to do so,
the Region should have the .permit modified 3r revoked and
reissued as quickly as possible to require the POTW to obtain
approval of and implement a program according to an expeditious
compliance schedule. While permit modification or reissuance
is not the only legal option available to require a PGTV,1 to
obtain or implement an approved pretreatmer.t program in the
absence of a permit requirement, it is generally the most
legally sound approach, and typically the cne the Agency should
follow. Permit modification or reissuance will put EPA in the
strongest legal position if an enforcement action against the
POTW is necessary.
Permit modification or reissuance is always necessary when
a POTW that has not previously been identified as needing a
pretreatment program is required to develop and implement one.
If an approved State attempts to reissue an N'PDES permit
without including pretreatment requirements, EPA should object
formally, and, if necessary, veto the deficient permit-
If EPA is the permitting authority, the Region nay either
modify or revoke and reissue the permit pursuant to the procedures
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4 -
at 40 C.F.R. Parts 122 and 124 to require the POTW to ohcair.
approval of and implement a pretreatment program. The reau la t icr.s
specifically identify the incorporation of a requirement to
develop an approved POTW pretreatnant program as an aonrocr 13:.•=
"cause" for permit modification or reissuance. If the Recicr.
chooses to rodify the permit, only the pretroatment requirement
need be subject, to comment and decision. If the Region chooses
the reissuance procedure, "he entire permit is reopened and
subject to revision (40 C.F.R. ^122,62).
If a State is the SPDES permitting authority for the
POTW, the Region should request the State to modify or reissue
the POTW ' s NPCES permit as quickly as possible pursuant to
the State analogue of 40 C.F.R, §124.5.
In certain situations a POTW will obtain approval of a
pretreatment program without a pre-existing permit requirement
or with a permit requiring the POTW to obtain approval cut not
requiring implementation. Suitable provisions pertaining to
the approved pretreatment program must still be incorporated
into the ?CTW's NPDES permit as soon as practicable to ensure
the Approval Authority's ability to enforce proper implementation.
A compliance schedule leading to pretreatment program
approval can be imposed on the POT1-1/ in either one of two ways.
First, the compliance schedule can be" included in the modified
or reissued permit. Second, the comp 1 iar. re schedule can be
included in an Administrative Order issue.: contemporaneously
with the modified or reissued permit. I/ These two methods are
illustrated by the two versions of sugges-ed permit language in
Attachment B. Both methods would bo enforceable in a federal
enforcement action against the POTW as long as the underlying
requirement to obtain approval of the pretreatment program was
contained in the POTW's modified or reissued nermit.
I/ If a POTW was previously identified and notified that it
~ needed s pretreatment program a fter the July 1, 1933 regu-
latory deadline contained in 40 C.F.R, §403.9, the POTW's
NPDES permit can conta-in a compliance schedule leading to
program approval requiring program submission after July 1,
1983. For those POTW ' s which were notified prior to July 1,
1983 that they needed a pretreatment program, inclusion of a
compliance schedule in a modified or reissued permit requiring
compliance after that date may be in violation of 40 C.f.R.
§§403.8(d) and 122.4(a). In the latter instance, a compliance
schedule would have to be contained in an Administrative Order
issued contemporaneously with the modified or reissued permit.
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The compliance schedule requiring program approval must
be realistic. It should contain only enough time to accomplish
the necessary activities culminating in the submittal of an
approvable pretreatment program. Individual factors affecting
pr etrea trr.er. t program development will determine the content of
the compliance schedule and the date by which the program must
be submitted. The compliance schedule must require submittal '
of an approvable pretreatment program as soon as reasonably
possible; in most cases n_o more than 6_ months. A six-month
compliance period represents the usual maximum time period for
obtaining an approved pretreatment program. If, for example,
a POTW has already completed an Industrial User survey and
a technical analysis, 60 days is generally a sufficient time
period to complete the program application.
Once a POTW's NPDES permit has been amended by the Approval
Authority to require the POTW to obtain and implement an
approved pretreatment program, the Approval Authority should
closely monitor the POTW ' s compliance and take enforcement
action promptly if the POTW falls behind schedule.
Federal Enforcejnejrt j.r. the Absence of a Permit Requirement
In limited circumstances, EPA might seek to require a POTW
to obtain or implement an approved program in the absence cf
an MPDES permit requirement. This would ce the case where
the Agency can establish good evidence thzi the absence of
an active pretreatment program is contributing to POTW effluent
violations or the absence of a pretreatment program is causing
demonstrable environmental problems and the permit amendment
process described above will not address the problem in an
expeditious manner. In these limited instances, the Government
may sue the POTW for existing NPDES violations under Section
309(b) and (d) of the Clea'n'Water Act and seek submission and
implementation of a pretreatment program as an element of relief.
Alternatively, Section 309(f) of the Clean Water Act nay
be available to obtain or implement an approved program in the
most serious cases' in which EPA has identified industrial user(s)
in violation of federal pretreatment standards. 2/ An enforcer.en-
action under Section 309(fJ would require that the Agency claim
that requiring the POTW to obtain approval of and implement a
2_l The legal operation of Section 309(f) is explained in more
~~ detail in the Agency enforcement guidance "Choosing Between
Clean Water Act $309(b) and $309(f) as a Cause of Action in
Pretreatmer.t Enforcement Cases" issued on the same date as this
enforcement guidance.
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— 6 -
pretreatment program was an element at "appropriate
Because use of Section 309(f) in this situation requires chat
obtaining or implementing a pretreatment program const if..: te
"appropriate relief", a Region should consider careful.ly wnether
the situation would fit that criterion in deciding whether to
brine an enforcement action under Section 309(f), for example,
EPA will 5e in a stronger legal position to sustain this cause
of action where the Agency can establish by good evidence that
lack of a pretreatmenc program contributes to substantial
industrial user nonconpliance with Federal pretreatment standards.
Joinin_c Other POTVJ Permit Violation^ lnm An Action For Failure
To Obtain_or Implement an Approved Pretreatment Program
In those instances where failure to obtain or implement
an approved program coexists with MPDES effluent violations,
the effluent violation claims should as a rule be joined to the
pretreatment claim. There may be exceptions, notwithstanding
the existence of effluent violations, where an enforcement action
against a POTW only for failure to obtain or implement an approved
pretreatrae.it program is desirable. This situation might arise,
for example, where absence of a pretreatment program is causing
immediate environmental problems and unrelated effluent violations,
or appropriate remedies are particularly difficult to identify
and substantiate; such instances are probably atypical. If they
do occur the Government must take steps to limit the likelihood
that either of the judicially recognized Joctrines of collateral
estoppel or res judicata will preclude a subsequent judicial
enforcement action against a POTW for eff.^ent violations. J_/
3/ Under the doctrine of rejs j_ydicata , a final judgment on
~ the merits bars further claims by parties or their privies
based on the same cause of action, Monjtajra v. United_State,s,
440 U.S. 14?, 153, 99 S.Ct. 970, 973 (1979). Res indicaca makes
conclusive a final valid judgment and if the judgment is on the
merits, precludes further litigation of the same cause of action
by the parties, Anton iol i v» Lehigh_ Coal and Navigation Co . ,
451 F.2d 1171, 1196 (3d Cir. 1971), cert,, den _red , 406 U.S. 906
(1972). Under the doctrine of collateral estoppel, an actual
and necessary determination of an issue by a court is conclusive
in subsequent cases based on a different cause of action but
involving either a party or a privy to the prior litigation.
C v , Shore , 439 U.S. 322, 326 n . 5,
=___ii_
99 S.Ct. 645, 649 n, 5, (19795
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For the most part, failure to allege all known NPDES
permit violations may later give rise to an argument by a
that res judicata should apply to bar these claims ia the
future. Alleging ail such violations avoids this problem
and also prorates efficient use of Government- resources, increase:
environmental benefits from the enforcement action, and is the
preferred approach.
R_es riKJicata and collateral estoppel standards can reasor.ab'.;.
be viewed as not precluding successive Government enforcement
actions against a POTW for different causes of action based on
different types of permit violations stemming from different
causes. However, there is, of course, always the uncertainty
as to whether any court will be amenable to successive suits
against the same party for water pollution control violations.
These uncertainties can be minimized by a careful litigation
strategy and should not pe_r se preclude successive enforcement
actions. Nonetheless, if at all possible, an enforcement
action should include all known NPDCS violations, particularly
if it can be demonstrated that effluent violations are in any
way attributable to the absence of a pretreatment program.
A lawsuit filed against a POTW only for failure to obtain
or implement an approved pretreatment program as required by
the PQTW's NPDES permit should be pleaded solely as a failure
to comply with the perrr.it provision(s) requiring program approval
or implementation. Failure to obtain or implement an approved
program should not be pleaded as a violation of the NPDES
per~.it in general. Specifically, the Government should ensure,
to the extent possible, in such an enforcement action that the
basis for the action is clearly articulated as a violation of
the specific requirement for pretreatment program approval or
implementation, so that questions regarding POTW compliance
with permit effluent limits do not come into issue in the
(footnote continued)
While there is no'federal case law directly on point
addressing the issue involved, several cases involving Federal
environmental statutes and the doctrines of res judicata
and collateral estoppel are instructive, S_ee, for example,
United States v. ITT Rayonier, Inc., 627 F.2d 996, 1002
(9th Cir. 1960), Western Oil and Gas Assoc. v. Environmental
Protection Agency, 633 F.2d 603,810 (9th Cir. I960), and
Earth First v. Block, 569 F. SUDD 415 (D, Ore. 1983).
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— g _
initial enforcement action. £/ This practice should
whether or not a subsequent action based on effluent viola'
is contemplated.
When and if these issues arise, their resolution by a
court will likely turn on the characterization of the Agency's
initial and subsequent causes of actions against a POTW and
the issues resolved during the initial litigation. Therefore,
the Government should clearly and precisely articulate its
cause of action and claim for relief in all actions for failure
to obtain or implement an approved pretreatment program.
This will provide an articulable basis for distinguishing
a subsequent action for POTW effluent violations.
Collateral estoppel problems will concern issues that
are necessary to the outcome of the initial pretreatment action
that would also be determinative issues in the subsequent
enforcement action for effluent violations. For example, in an
action for failure to obtain an approved pretreatrnent prograrr,,
a court may rule on whether a POTW's permit was properly issued
in deciding whether the permit is enforceable as written.
The ruling on permit enfcrceability would be controlling if
the question arose again in a subsequent action addressing
violations of the permit's effluent limits.
There is nothing inherent in such ar. atypical pretreatr.ent
enforcement action that necessarily will :ecide any or all
issues in a subsequent effluent violatior, action against the
same POTW, Indeed, in many cases, the circumstances relating
to violations of a POTW's pretreatment program will have no
bearing on the circumstances surrounding a POTW's failure ta
comply with effluent limits. A careful and articulate litigatio
strategy will minimize both res judicata and collateral estoppel
problems against the Gov^"trhtnent in a subsequent action against
the POTW for NPDES effluent violations.
4/ An enforcement action under Section 3G9{b) or Section
309{f) of the Act — in the absence of a corresponding permit
requirement—seeking pretreatment program submission or
implementation as "appropriate relief" should make clear to the
extent possible that the need for a local pretreatrr.ent program
is independent of the PQTW's compliance with the effluent limits
in its permit. In most cases, this argument may not be available
if the Government needs to show that the lack of a pretreatment
program is leading to POTW effluent limit violations in order to
persuade the court that requiring program approval constitutes
"appropriate relief".
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9 -
This Guidance Memorandum is intended solely fcr the use
of Agency enforcement personnel. This guidance creates no ri_.
is not binding on the Agency, and no outside party should rely
on it.
Attachments
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tplianceSchedule for POTW Pretreatment Program Approval sssajry,
On or before (3 months or less from date_t.he compliance ' iir.g
schedule is effective), the permittee shall suc.T.it tn~eU'ces
following:
(a) The results of an industrial waste survey as required
by 40 C.F.H, §403.3{f){2 ) (i-iii), including the -
identification of industrial users and the character Tstify
and volume of pollutants contributed to the POTW by idards
the industrial users; * F.R.
}(!} An evaluation by the City Attorney or a public official n~
acting in a comparable capacity, of the legal authorities
to be used by the permittee to apply and enforce the rr^s
requirements of §§307{b) and (c) and 402(b}(8) of the "9
Clean Water Act, including those requirements delineated
in 40 C.F.R. §403.8(f)(1);
ent
)(2) A schedule under which the permittee shall obtain C.F.R,
the legal authorities which the evaluation conducted sncec
under fb){l) above identified as inadequate or missing. )'
This legal schedule shall require that the permittee
submit the necessary legal authority no later than
A plan and schedule for obtaining any additional able
technical information that will be needed by the
permittee in order to develop specific requirements •3
for determining violations of the discharge prohibitions
in 40 C-F.R. §403.5 and to'dfevelop an industrial s
waste ordinance or other means of enforcing pretreatnent ' '
standards.
1(2) The plan must include influent, effluent and sludge
sampling that will enable the POTW to psrforrr. a
technical evaluation of the potential for pollutant
pass through, interference, or sludge contarination,
and to calculate, for each pollutant of concern,
the maximum safe loading which can be accepted by
the treatment facility.'
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ATTACHMENT _B'-
SUGGESTED NPDES PERMIT LANGUAGE
(for a POTW notified prior to July 1, 1983 that it needs
a pretreatment program and for which a contemporaneous
AO will be issued containing a compliance schedule)
Under the authority of Section 402(b)(8) cf the Clean
Water Act and the General Pretreatment Regulations
(40 C.F.R, Part 403), which implement- the pretreatment
provisions of Section 307 of the Clean Water Act, the
permittee is required to obtain approval in accordance
with the provisions of 40 C.F.R. §§403.8 and 403.9, and
thereafter implement, a pretreatment program,
(for a POTW previously identified and notified after July 1,
1983 that'it needs a pretreatment program)
Under the authority of Section 402(b) (8) of the Clean
Water Act and the General Pretreatment Regulations
(40 C.F.R. Part 403), which implement the .pretreatment
provisions of Section 307 of the Clean Water Act, the
permittee is required to obtain approval in accordance
with the provisions of 40 C.F.R. §§403.0 and 403.9, and
thereafter implement, a oretreatment program, in accordance
with the followinq schedule:
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' H : ' ~~' ~ '
~fs v ' " UlN" M ^ N '' AL P - £7E C7 1 OK' AGENCY
WASH! KG "OK. D.C. 2W6D
TAB A
n -
F?,0>-'. :
Direct C:E ci the Approves KPDZS ?ro=r£ss
Assistant ^c-ir.istratcr for info: csinsnt (SK-32S)
Genersl Course! {A-l:3'0)
Szgte ?,og ui stier, of FecsrEl Fecilities U-nder tbt
rsierEl K-£ter pDiluticn Ccr.-rcl .-, c^ .-jrieniaents cf
:5"7 (Clean Kaze: r.ct) — POLICY GUZDAJvCr .viC?A2vD
Introduction
The recent amendments to the FW?CA have sicnificantly
ch an; so ":-":r;- "r ®r '^1 Etory r el at ion ship cf StEtes to Federal
facilities under the FKPCA. First, section 213 cf tbt H-rPCJ*
vgs substantially a.zier.dec to pro-ioe that Federal facilities
—.u£t. ccr.ply vith substantive an-c procedural resuireir.ents of
State lav regariinr the control •&: •-•jter pollution includinc
now require State certificetion under section 401.
Under the 1977 £i?e-drr-entE , Stctss *:e authorirec to
issue vster pollution control 'Dsrrr.its to Fecerg.1 facilities.
Prior to these £~ en events, the Supreme Court r.ad beli tr.ct
States could no t require federe.liy o-'nei cr cperatec facili-
ties to obtain State discharge o-erit.its. I/
i / ~ ~ i v. C^'ifcrT'E ^ e o i o n s. 1 v'ster P, eso-roes
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Section 313 was aaended to require that Federal
iti«s :
, . . shall be subject to ana cocply with
all «. , . State, interstate, and local
r equiranterj ts , administrative authority,
a.nc process a.nd sanctions respecting the
control and a-bateaent of water pollution
in tie same manner, ane to the stae extent
as any nongovernmental entity . . , . The
preceding, sentence shtl-1 apply (A) to any
requirement whether substantive or procedural
(inducing any reeorckeeping or reportir,9
reccir ement , any reguireitient resse_et_ino
permits arse any ctner r equiren-.ent , wr< at so-
ever) , (3) to trie exercise of any . , .
State or local acsinistrative authority ....
s added.}
Ei£ Psrsits
Stales are authorises: to issue water pollution control
permits to Federal facilities.' The section 212 anencaents
GO not restrict this authority to State er K?D£S permits,
therefore Ststts may issue both. Obviously, only sppte^td
'K'PDES States san issus section 402 permits, Tvaere a non-
sppro^ec State issues a State permit to =. Fsdara,! facility,
the Hecier.s should continot to issue an E?A permit in the
sace manner, as anv other K?DS£ permit . To the extent
possibltr issuance by a Rftcion of an K?D£S permit in these
circumstances should be cooroinr.tefi with the State to avois
inconsistencies anc procedural deleys,
The effect that the 1577 Xr^snc^.ents will have on the
KPDiS per~.it progran as it relates to Stsre rssulation of
Federal facilities i$ eiscussea below. The issuance of
State permits to Federal drecce ane fill activities, and
Sta.te administration cf the section 404 rrocran; is not
coverec bv this ine-srancu^ , 'These issues vill be oiscasseS
St at e K P.PS ? r o s r
Section 402(c)(l) cf the Clean Water Act provides that
upon approving a State program , "the Adr.inistratcr shall
-------
•suspend the issuance of peraits under subsection (a) of
this section a,s to those navigable vittrs subject to such
program , .' .. " Except for Federal facilities, it has
always bemn EPA's position tbst section 402(c)(l) requires
States to have authority to issue permits to ell point
sources. Prior to the enactment of tht Clear, Water Act cf
1577, EPA withheld approval of State KPDSS authority over
Federal facilities because Federal law precluded .States from
issuing perzits to Federal sgencies. ?be Supreme Court
adopted EPA's position in EPA v. California Sesional Water
•Resources Cor.tro 1 3os.r c , s_upr'a n. 1.
However, in its decision., tie Court irssde it clear that
Congress intended "that the States be given saximum responsi-
bility fcr tie perr.it system . ..." Id. at r.. 29. Moreover,
the' Court approved withhold ing EPA approval of State programs
to the extent that they applied to Federal facilities only
because EPA *-£y not , . . approve a state plan which the
State has no authority to issue because it conflicts vith
federal lav,'1 le. et 226. Now that Congress has ejaenoed
the Clean water Act specifically to include Federal facili-
ties within the class cf dischargers subject to Statt
permits, i~ seexs clear that States say no longer exclude
Federal facilities froa regulation, just es they msy not
exclude steel-'Jtills or power plants, or other sources over
which they cgy assert jurisdiction.
Accordingly, all KPDES programs approved before the
1577 Amendments should be modified, including the Memoranda
cf A£ree;r.er3t, to reflect the States' new authority to issue
Federal facilities r-err.its ._2/ As part of this modification,
2/ Kocific£tion is required because nany States are prevented
by State law fro::, issuing permits to Federal facilities.
frier cover, til 'States which acr.inister the K?DES program
have entered ir.to a Msn-.orar.cu::. cf Agreement which includes
- a provision that prevents the State fror, issuinc permits
to Federal facilities. For ex2.rr.ple, the State of Missouri
Agreement provides that:
This agreement does net co^er the issu-
ance cf K?D££ perrr.its to Feoeral facilities
within the State cf Kisscuri. It is under-
stood by both pcrtiss that it is the intent •
c f I ?.-. to e >'. ~ ~ £ £ = 1 ">' retain the p= r r. i t i = s u-
-------
the State shall submit 2 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
the reportingr 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 cf promulgation unless a State nust amend cr enact
a lav in cider to sake the necessary aedification. I- that
case ~he modification must be mace within two years cf the
cste of regulation promulgation. Programs z;sy be modified
before these regulations, are issued. Program modifications
should be subject to public notice and opportunity for
corrjDent. Mocifications to the Memorandum of Agreement must
be approved by the Administrator,
It is possible that for sortie programs only the Mem or and us
cf Agreement need be modified to authorise State takeover of
Federal facility permits. In such cases the 3egicns nay
relinquish their permit issuing authority to the State
solely by modifying the Memorandum of Agreement. Following
whatever program modification is necessary, t.he States
become the permit issuing authority for Federal facilities.
Permits, issued or in the process of issuance by £?A to
Federal facilities located in approved K?DES States should
be transferred to the State in the same vay other permits
were transferred following initial State takeover of the
program. .In certain cases, however, the Regions may, as
an interim Treasure, issue £ Federal'facility perr.it in ar:
apprcvec Staie before completion of the necessary program
modifications if it is apparent that eve it ing such mod ifi-
caticr.s will zacss an inordinate delay in permit issuance.
Finally, all State programs approved after enactment of
the 1£" Amendments {December 27, 1577) must provide for_
Stats issuance o5 permits to Feceral facilities. Existir-nc
regulations are beinc changed to reflect this requirement,
?.°~ortinc, >jcr. itcr inc , Ir.st?ectio_n _anc Sntrv ?&g'jireaents
Che section 313 amendments also explicitly require that
1 facilities ccrr.pl y with any State "r ecor dkeepins c:
ire recuir e~en-t. " The Senate ?.epc:t indicates tnat
ncludes any reporting cr monitor ins requirements.
?.et>CT t at 67 .
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States must have the right to enter and inspect Federal
facilities if their reporting and oonito'ring authorities are
to be meaningful. Moreover, it is clear froE the language
of section 313 that Congress intended £t£tes to have such a
entry. The President is authorized to grant a
j'jnt interest'1 exemption covering rany weaponry,
equipment, aircraft, vessels, vehicles, or other classes cr .
categories of "rcoertv, ar;c access to such ~rcoertv . . .."
[ sect i or; 213 (a)] (emphasis =6 dec) . Clearly, unless the
President exempts a Federal facility, a state must be
allowed "access" to the f Ecility .$/
Initial State contact, with a Federal facility for the
purpose of entry ane inspection should be closely coordinated
with the facility and the Region particularly where access
to the facility is restricted.
State Certification Under £e_ction 401
The new amendments eliminated section 401 (a) (£) ,
which provided an exception for Federal agencies from
Stete certification. Kcccr c ingly , >*?DES permits issued by
EPA to Federal facilities require certification by the State
that the discharge is in compliance with £.11 of the appli-
cable provisions of sections 301, 3C2, 3C3, 306 and 307 of
the FV7PCA.
Please refer any further uestions to Jeffrey G.
Kater Enforcement
er, Deputy Assistant Admnistrator
"
(b/755-044C) .
Section 30E(c) authorizes States to exercise entry
authority under programs approved by upA, but such entry
authority does not extend to Federal facilities. This
section, which was not revised by the 15~* Clean Water
Act, c £ n not be rest to wester, or r e r. 2: £ r ir?2if?ct^ve tre
c. - » ., — . - -
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ^ *~~^~
' WASHINGTON. D.£. 20460
.. - ' KOV I 8 1ST8
OrnCI 0? ENFORCEMENT
n - Yfr- i^
MEMORANDUM
TO: Regional Enforcement Division Directors
FROM: Deputy Assistant Administrator for Water Enforcement (EN-335)
SUBJECT: Transfer of Authority Over Federal facilities to NPDES
States - GUIDANCE MEMORANDUM
INTRODUCTION
Dn Karen 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 ciats four NPDES States have assumed this responsibility, and the
process to transfer JJPDE.S 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'jsly as possible.
RECOM'-EIJDiD PROCESSES 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 facilities and asking that this be
cone exp'editiously. This letter should request an Attorney General's
statement as to whether the State has adequate author-;ty to implement
ell 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 surtmsry of this analysis in your letter.
However, an EPA analysis of State authorities cannot serve as a substitute
for an Attornev General's statement.
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Prior to sending the letter, the Memorandum of Agreement (HOA)
between EPA and the State should be reviewed to determine whether it
should be modified. If the MOA restricts the State's authority over
Federal facilities in any way it must be changed/ Tne letter sent
to the State should specify whether the HOA needs to be modified. If a
modification is necessary, a proposed document {see -attached example -
TSD B} should also be included.
B. No Modification to H3A Necessary
If no modification to the MOA is necessary to transfer authority
pver Federal facilities to the Statt and the Attorney General's Statement
indicates teat 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 bt approved. This action memorandum should
include the following attachments; 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 drift letter frorr, the Assistant Administrator for
•Enforcement approving the transfer of authority (sample attached - Tab D),
and any other relevant documents I e.g., a memorandum from Regional
Counsel evaluating the State's legal authority).
This package will then be sent tc the Deputy Assistant Administrator
for water Enforcement for concurrence and, if everything is in order,
sent ts the tesistant Administrator for Enforcement for a decision
on Approval. (The authority tc approve State NPDES program modi ficati ens
for Feoersl facilities coverage has been delegated to the Assistant
Administrator for Enforcement.) The transfer of authority tskes effect
wnen the aoproval letter is signed and transmitted by the Assistant
Administrator.
C. Modification to the K3A is Necessary
When it is necessary tc modify the HOA 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 ( sa~pl e attached - Tab E)
snoul d be issued and an opportunity to ccament provided. Tne 'public •
notice should be mailed to §11 interested people (bcth froa EPA's and
the State's mailing lists) anc should be pu&lished in the largest
newspapers in the State. It should provide a 30-day comment period and
incicate that a hearing will be he'd if sufficient interest is expressed.
After the c'cse cf tne pw:". ic cc-~r;»r,t period c* c'ter a hearing,
if cne is held, an Artier. Ksr.c-ar.c-jr,. sxulc te p'e"£"e; as cescribeo
eDDvs DLt with tne fcTicking additions'! attachments: 2 ccoy c-f the
p'j:':ic notice, a eotr-y cf all C£~~£r.ts -eceivec or e sugary of tne
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comments, snd three originally signed copies of the document modifying
the KQA. If amy 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
zhfc Action Memorandum should also include a discussion of the- other
proposed KOA changes.
This package should be forwarded to Headquarters and win be
processed as described above.
D. If State Indicates jt lacks Authority
If the State Attorney General indicates a lack of authority over
Feoeral facilities, the State is required to correct this deficiency
within time limits to be established in forthcoming revised WPDES
reo'jl ations. 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.
Likewise, if the State is reluctant or uncooperative the Region should
keep this office informed. If you have any questions or need additional
information please contact David Schnapf (75S-Q750) of the Permits
Divisi on.
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GENERAL COUNSEL OPINION
No. 7&-7
April 18, 1978
Procedures for the Withdrawal of State NPDES Program Approval
Pursuant to Section 402(cX3) of the Clean Water Act
Clean Water Act — Section 402(c)(3) — Procedures for wiihdrawa.1 of
State NPDES program approval — Withdrawal of program approval
under Section 402(c)(3) requires format adjudicatory bearing in ac-
cordance with Administrative Procedure Aci — Reference to "public
hearing" in Clean Water Act (Section 402(c)(3)) means adjudicatory or
full-scale adversary hearing, including determination of State's rights,
factual determinations, and those other elements which define an "ad-
judication" — Because a Section 402 hearing is directly reviewable in
Court of Appeals, it rnuit comply with form*! adjudicatory procedures
of i U-S.C. Sections 554, 556 and 557; Agency may, however, chocte lo
select a procedure then of full adjudicatory hearing, or to restrict the
scope of such i hearing if it must be held — Rules of formal adjudicato-
ry hearing, is set out in Administrative Procedures Act,.will be followed
as 10 evidence, disclosure, etc.; intervention will be permitted by any
person "affected by the proposed issuance, denial or modification of
permit" (4-0 C.F.R, 12S.36(b)(l) and (d)(l) — Intervention should be
permitted by environmental groups or members of the public who reside
in the State under review — Permittees may intervene and designate a
representative to participate in hearings representing til luch petitioners;
EPA may adopt such a procedure in Section 402(c)(3) bearing*.
This memorandum sets forth our guidance concerning ihe procedures for
the withdrawal of State NPDES program approval, pursuant to Section
402(c){3) of the Clean Water Act. Rather than detailing specific and
complete procedures, we have restricted this discussion to the type of bearing
required under Section 4Q2(c)(3). In our opinion this section requires a
formal adjudicaiory hearing in accordance with the Administrative
Procedure Aci. We have also included brief discussions of the necessity and
timing of the hearing, the fundamental aspects of the hearing, evidentiary
rules, rights of discovery, and rights of intervention.
TYPE OF HEARING: FORMAL ADJUDICATORY HEARING
There are essentially three types of hearings which administrative agencies
may hold in arriving at particular decisions; (1) a legislative type informa-
tional hearing including an opponunity to submit written statements and
make oral presentations in a public forum; (2) an adjudicatory or evidentiary
hearing of an adversary nature resembling a judicial proceeding; and (3) a
hybrid-type hearing more formal than the legislative hearing (e.g., including
cross-examination} but less formal than the adjudicaiory or full-scale adver-
sary hearing Whether an agency is free to choose among these types of
hearings or must utilize a particular type hearing is determined by the
399 WATER POLLUTION
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GENERAL COUNSEL OPINION No. 78-7
agency's organic statute, the requirements of the Administrative Procedure
Act, 5 U.S.C. §551 et $eq.< and tie dictates of due process.
Turning first to the Agency's organic statute, we note that Section
402(c){3) of the Clean Water Act provides that *'[w]henever the Adminis-
trator determines sftc: public hearing ihat a State is not administering a
program approved under this section in accordance with requirements of this
section, he shall so notify the State. . .*' (emphasis added). The term "public
hearing" is ambiguous. In some cases the courts have construed "public
bearing" 10 mean a full scale adversary hearing, e.g. US. Steel v. Train, 556
F. 2d 822 (7th Cir. 1977), while in other cases the term has been construed
to mean a legislative hearing or hybrid-type hearing, e.g., South Terminal
Corp v, EPA, 504 F.2d 646 (1st Cir. 1974). The legislative history of Section
402(c){3) provides no guidance as to the type of "public hearing" intended
by Congress.
The language and judicial construction of the Administrative Procedure
Act, however, lead us to conclude that "public hearing" in Section 402(c)(3)
means adjudicator^ or full-scale adversary hearing. Sections 554, 556 and
557 of the Administrative Procedure Act set forth procedures to be followed
in "every case of adjudication required by statute to be determined on the
record after opportunity for an Agency hearing" (emphasis added). Pulling
aside the question whether a Section 402(c)(3) determination is an "adjudi-
cation," it is clear that Section 402(c}(3) doss not utilize "on the record"
language. But the Attorney General, the Courts of Appeals, and the
Supreme Court have consistently concluded that the presence of "on the
record" language is not determinative, and thai when an "adjudication" is
involved, a statutory requirement for any type of hearing may be presumed
to mean an "on the record" hearing. Sec, e.g.. United States v. Florida East
Coest Ry. Co., 410 U.S. 224, 245 (1973); United States v. Allegheny
Ludlum Steel Corp., 406 U.S. 742, 757 (1972); Phillips Petroleum Co. v.
FPC, 475 F. 2d 842 (10th Cir. 1973); United States Steel Corp. v. Train,
556 F.2d 822 (7th Cir. 1977); Marathon Oil Co., el at. v. EPA, 564 F.2d
1253 (9th Cir. 1977); Seacoas! Anti-Pollution League v. Costle, 11 ERC
1358 (1st Cir. 1977); Attorney General's Manual on the Administrative
Procedure Act at 41-43 (1947). On these bases, the Courts of Appeals for
the First, Seventh, and Ninth Circuits have concluded that the issuance of an
NPDES permit under Section 402(a) of the Clean Water Act requires a full-
scale ApA adjudieatory hearing, even though that section mentions only a
"public hearing." US. Steel v. Train, supra; Marathon Oil co., et al. v.
EPA, supra; Seacoast Anti~Pollution League v. Costle, supra. Because
§4Q2(c)(3), like §402(a), requires a "public hearing," we believe a full scale
APA adjudicatory hearing is necessary if a §4Q2(c)(3) determination is an
"adjudication" (as opposed to a "rulemaking").
We believe that a Section 402(c)(3) determination is an "adjudication" as
.the term has been denned by the courts and respected commented. For
WATER POLLUTION 400
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GENERAL COUNSEL OPINION No. 78-7
example, in American Express Company v. U.S., 4?2 F,2d 1050, 1055
(C.C.P.A. 1973), the Court said, "nilemaking ... is primarily concerned
with policy considerations for the future rither than the evaluation of put
conduct , , . and looks not to the evidentiary facts but to policy making
conclusions to be drawn from those facts. On the other hand, adjudication
. . . has an accusatory flavor and may result in some form' of disciplinary
action.. . ." In PB^' Stock Exchange, inc. v. SEC, 485 F.2d 718/732 (3rd
Cir. 1973), cert, denied 416 U.S. 969 (1974), the Court stated that "rules
ordinarily look to the future .and are applied prospectively only, whereas
orders [i.e., "adjudications"] are directed retrospectively, typically applying
law and policy to past facts-" In addition, almost without exception, the
courts have staled that mlernaking involves matters of general applicability,
while "adjudication" focuses on the specific rights of particular individuals
or entities and involves the resolution of a particular set of disputed facts and
the making of specific factual findings. United States v. Florida East Coos}
Railway Company, supra; Marathon Oil Company, et al. v, EPA, supra;
Seacoast Ami-Pollution League \. Costle, supra. Finally, Kenneth C. Davis,
a respected eommemer on administrative law, states that "adjudicative facts
usually answer the questions of who did what, where, when, how, why, with
what motive or intent;. ,, [while] legislative facts do not usually concern the
immediate parties but are general facts which help the tribunal decide
questions of law md policy1 and discretion," 1 Bivis, Administrative Law
§7.02 at 412 (1958).
With these principles in mind, we turn to in examination of 8 Section
402(c}(3) determination. First, the proceeding involves the determination of
specific rights of a particular entity — the Slate, Second, the proceeding
involves the evaluation of past conduct and the making of specific factual
determinations — whether the State has administered the program in ac-
cordance with the requirements of Section 402(b) and 40 C.F.R. Part J24.
Third, the determination might well have an accusatory flavor. Fourth, the
facts arc adjudicative in nature, in that they answer the question of who did
what, where, when, how, why, and with what motive or intent, and are likely
to be sharply disputed. Finally, though general policy considerations may
influence the decision, the decision will not make general policy. On the basil
of these general principles, we conclude that a Section 402 (c)(3) determina-
tion is an "adjudication'1 within the meaning of the Administrative
Procedure Act.
Beyond the foregoing, a Section 402(c)(3) determination appears to fall
within the APA's precise definition of "adjudication," According to 5 U-S.C
§551(6) and (7), " 'adjudication' means agency process for the formulation
of an order" and an " 'order1 means the whole er pan of a final disposition...
of an agency in a matter other than rulemaking bu; including licensing"
(emphasis added). Moreover, licensing includes "agency process respecting
the grant, renewal, denial, revocation, suspension, annulment, withdrawal,
401 WATER POLLUTION
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GENERAL COUNSEL OPINION No. 78-7
limitation, amendment, modification, or conditioning of i license," and
" 'license1 includes the whole or part of an agency permit, certificate,
approval . . . or other form of permission." (emphasis added). 5 U.S.C,
§551(8) and (9). Because the approval of an NPDES program under
Section 402(fa) falls within the definition of "license", the withdrawal of
approval under Section 402(c)(3) is a "licensing" proceeding and, thus, an
"adjudication" within the meaning of the APA,
In summary, we believe a Section 4Q2(c)(3) determination is an "adjudi-
cation" as the term is defined by the courts and commenters and as the term
is denned by the APA. Because this "adjudication" must be made on the
basis of a hearing which is directly reviewable in the Court of Appeals, we
believe a Section 402(c)(3) hearing must comply with the formal adjudicaio-
ry procedures of 5 U-S.C. §§554, 556 and 557. '
THE NECESSITY AND TIMING OF AN ADJUDICATORY
HEARING
Having concluded that Section 402(c)(3) entails an adjudicatory hearing
subject to Sections £54, 556 and 557 of the Administrative Procedure Act,
does noi mean that an adjudicatory hearing must always be held. It is well
settled that "an agency is not required to hold hearings in matters where the
ultimate decision will not be enhanced or assisted by the receipt of evidence,"
City of Lafayette v. SEC, 454 F.2d 941, 953 (D.C. Cir. 1971), affirmed 411
U.S. 747'(1973). It may condition the availability of a bearing upon a
showing by the requesting party that there is something substantial to hear.
FPC v. Texaco, 377 U.S. 33 (1964); United Stales v. Storer Broadcasting
Company, 351 U.S. 192 (1956). "No evidentiary bearing is required where
there is no dispute on the facts, . , ."'' Citizens for Allcgan County, Inc. v.
FPC, 414 F.2d 1125 (D.C. Cir. 1969).
1 While there are obviously no cases directly on point, we think ii signifi-
cant thai the Department of Health, Education, and Welfare has con-
strued an analagous statutory provision to require APA hearings. The
Social Security Act of 1935, 42 U.S.C. §§301-1394, established several
grant-in-aid programs whereby any state at its option might choose to
participate. If a state desires participation, it must submit its plans to
HEW and the Secretary "shall approve" such plans if they meet statuto-
ry conditions. The Secretary may discontinue state participation if he
finds after "reasonable notice and opportunity for hearing" ihai the
plans, is written or applied, no longer conform to federal standards.
HEW has provided AJPA adjudicatory hearings for such determinations.
Sea 45 C.F.R. Pan 213 and National Welfare Rights Organization v.
Finch, 429 F.2d 725 (D.C. Cir, 1970).
WATER POLLUTION 402
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GENERAL COUNSEL OPINION No. 78-7
Therefore, in order to minimize the necessity for a full-scale APA adjudi-
catory hearing and to restrict the scope of such a hearing if it must be held,
the Agency should adopt a mechanism to narrow the issues. For example, the
Agency could first convene a legislative type hearing where the Agency, the
State, environmental groups, industry members, and interested citizens could
present facts and opinions concerning the Stale's performance. Or> the basis
of this legislative type hearing, the Regional Administrator or Agency
employee or panel could make preliminary or tentative findings of fact and
recommendations to the Administrator, At that point, the State could be
given the opportunity to submit a request for an adjudicator^ hearing,
setting forth the facts which it believes are in dispute and a summary of the
evidence it intends to present in support of its position. Alternatively, the
Agency could proceed directly to an APA hearing, setting forth the issues for
resolution and its allegations of fact. The State could be required to answer
the Agency's allegations, thus narrowing the disputed issues.
THE FUNDAMENTAL ASPECTS OF AN ADJUDICATOR?
HEARING
The fundamental requirements of an APA adjudicator^ hearing are set
forth in 5 U.S.C. §§554, 556 and 557. The Agency must give timely notice of
the time, place and nature of the hearing; the legal authority and jurisdiction
under which the hearing is to be held; and the matters of fact and law
asserted. The hearing must be presided over by an administrative law judge
and be scheduled at a time and place which takes into account the con-
venience and necessity of the parties. The administrative law judge may not
consult a person or party on a fact in issue unless on notice and opportunity
for all parties to participate. 5 U.S.C. §554(d). At such a bearing, the
proponent of an order (the Enforcement Division or, perhaps, the Region)
has the burden of proof and must support its position by substantial
evidence. The State is entitled to present its case or defense by ora.1 or
documentary evidence, to submit rebuttal evidence, and "to conduct such
cross-examination as may be required for a full anc! true disclosure of the
facts." The administrative law judge, however, may exclude irrelevant,
immaterial, or unduly repetitious evidence. 5 U.S.C. §556(d). The exclusive
record for decision in such a proceeding is the transcript of testimony and
exhibits, together with all papers and requests filed in the proceeding. 5
U.S.C. §556(e). The administrative law judge shall make the initial decision
which becomes the final decision of the Agency unless there is an appeal to
the Administrator. In the alternative, the Administrator may decide that he
will make the decision, in which case the ALJ thai! make a recommended
decision. 5 U-S.C. f 557(b), Before an initial or tentative decision by the ALJ
or a decisjon by the Administrator, the parties must be given the opportunity
to submit proposed findings and conclusions or exceptions to the initial or
recommended decision. 5 U.S.C. §557(c). The administrative law judge, the
Administrator, and any Agency employees who are or may reasonably be
403 WATER POLLUTION
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GENERAL COUNSEL OPINION No. 78-7
to be involved in the dedsional proce« are prohibited from en gag-
ing in ex pane communication relative to the merits of the proceeding with
any interested person outside the Agency. 5 U-S-C. §S57(d), In addition, no
Agency employee who performed investigatory or proseeutoriai functions
may consult with the decision-maker or take pan in the dccisional process,
THE RULES OF EVIDENCE
AJthough the proceedings resemble judicial proceedings, "in administra-
tive hearings the hearing examiner has wide latitude as to all phases of the
conduct of the hearing." Cello v. US., 208 F,2d 783, 789 (7th Cir. 1953),
The strict common Saw rules of evidence do not apply in administrative
proceedings. Swift & Company v. US., 30S F.2d 849 (7th Cir. 1962). In
addition, not only is the opinion rule inapplicable, Swift & Co. v. VS., 317
F.2d 53 {7th Cir. 1963), but opinions of competent persons may constitute
evidence for the purpose of complying with the substantial evidence rule. See
Turnball v. US., 389 F.2d 1007 (Court of Claims 1969). Moreover, the
Supreme Court has definitively held that hearsay evidence is not only
admissible in administrative proceedings, but that it may constitute substan-
tial evidence "where the underlying reliability and probative value" of the
evidence can be assured. Richardson v. Persies, 402 U.S. 389, 400-402
(If71). Finally, the fact that contradictory conclusions miy be drawn from
toe evidence presented not preclude an agency from retching a decision
which is supported by substantial evidence. Kssle Hmr ami Ssslp Special'
isu. Inc. v, FTC, 275 F. 2d 18, 21 (5U» Cir. 1960),
RIGHTS OF INTERVENTION
Probably the most unsettled aspect of administrative procedure concerns
rights of intervention. These rights are controlled by law at four levels —
statutory provisions, agency rules, agency practices, and judicial decisions.
The third sentence of Section 55S(b) of the Administrative Procedure Act
provides: "So far as the orderly conduct of public business permits, an
interested person may appear before an agency cr its responsible employes
for the presentation, adjustment, or determination of tn issue, requests, or
controversy in a proceeding, whether interlocutory, summary, or otherwise,
or in connection with an agency function." This provision has been inter-
preted as not "blindly absolute," because it is limited by the first clause — -
intervention may stili be denied, Easion Utilities Commission v. Atomic
Energy Commission, 424 F,2d S47, §52 (D.C. Cir. 1970). Turning next to
tie Clean Water Act, we note that nowhere in tie Act is there any mention
of intervention in a 402(c)(3) proceeding or any other proceeding. However,
in Section 101(a)*$ declaration of goals and policy, it is stated that, "public
participation, . . shall be provided for, encouraged, and assisted by the
Administrator and the stales." In addition, the provisions fer judicial review
in Section 509 allow review of the Administrator's determinations with
WATER POLLUTION 404
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GENERAL COUNSEL OPINION No. 78-7
respect to a stale program "by any interested person." The next source of
guidance — Agency rules — is unavailable because the Agency has not
published procedures for the withdrawal of Slate program approval.
However, the Agency's rules for intervention in Section 402 permit issuance
proceedings are broad in that intervention is permitted by any person
"affected by ihe proposed issuance, denial or modification of the permit. . ."
40 C.F.R. 125.36(b)(2) and (d)(l). The Agency statutes and rules, there-
fore, favor broad public participation.
Judicial opinions on intervention in administrative proceedings are varied
and often contradictory. Courts often emphasize that the detcrminaiion of
the intervention question is one for administrative discretion. See, e.g.,
Alston Coal Company v. FPC, 137 F.2d 740 (10th Crr. 1943); Oughton v.
A'ZJJB, 118 F.2d 486 (3rd Cir.), cert, denied 315 U.S. 797 (1941). On the
other hand, some courts have held that any person entitled to seek judicial
review of an administrative determination is entitled to intervene in the
administrative proceedings. See, e.g. National Coal Association v. FPC, 191
F. 2d (D.C. Cir. 1951); American Communications Association v. United
States, 298 F.2d 648 (2nd Cir, 1962). Judicial authority on this point is
scant, probably because "agencies almost always allow intervention by those
entitled to obtain review." 1 Davis, Administrative Law §8.11 at 567 (1958).
The modern trend of authority is to allow increased intervention in adminis-
trative proceedings, especially by public interest groups. Davis, Adminisira-
iive La* of ihe Seventies §8*.] 1 at 289 (1976).
Although the courts favor liberal intervention rules, ihey have recognized
that increased participation through intervention crea'.es problems for ad-
ministrative agencies — multiple and emended cros^-examination may be
deleterious to the administrative process. The remec> for such problems,
however, is not the denial of intervention, but the exercise by the hearing
examiner of his power to be the arbiter of the relevance of proffered
testimony and of the proper scope of cross-examination, and 10 insist that all
parties address themselves to the business at hand with dignity and dispatch,
National Welfare Rights Organization v. pinch, 429 F.2d 725 (D.C. Cir.
1970); Office of Communications of United Church of Christ v. FCC, 359
F.2d 994 (D.C. Cir. 1966); Virginia Petroleum Jobbers Association v. FPC,
265 F.2d 364 (D.C. Cir. 19S9). However, the couns have also recognized
that agencies may deny intervention to a person whose ir.ierest is represented
by a party with an identity of interest to the person seeLng intervention. See,
e.g., National Welfare Rights Organization v. Finch, surra, at 739; Cities of
Statesville, ei cl. v. Atomic Energy Commission, 441 F, 2d 962 (D.C, Cir.
1969); Scenic Hudson Preservation Conference v, FPC. 354 F.2d 608 (2nd
Cir. 1965). Thus, the usefulness of any particular petitioner for interveniion
must be judged in relation to other petitioners and ail agency has broad
discretion in determining how many imervcnors are reasonably required to
405 WATER POLLUTION
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GENERAL COUNSEL OPINION No. 78-7 ..
present the issues. Office of Communications of United Church of Chris; v.
FCC, supra.
On the basis of the foregoing, it appears that intervention should be
permitted by environmental groups or members of the public who reside in
the state under review. It also app&ars, however, that all members of the
public would have an identity of interest and multiple representation would
serve little purpose. Intervention by permittees is a more difficult question.
Whether or not EPA or a State is running the program, permiu&es will still
obtain permits which should embody identical requirements. Certainly,
permittees have no cognizable legal interest in maintaining a weak state
program. At most, permittees have an interest in dealing with local officials
and whether this is sufficient for intervention or judicial review is debatable.
But, because all permittees will have an identity of interest, intervention by a
representative of permittees may cause less difficulty than the denial of
intervention. The Department of Health, Education and Welfare im
recognized the identity of Interest situation and has promulgated a rule
which provides that "where petitions to participate as parties are made by
Individuals or groups with common interest, the presiding officer may request
all such petitioners 10 designate a single representative, or he may recognize
one or more of such petitioners to represent all such petitioners." 40 C.F.R.
§2I3.15(b)(4). We believe that EPA could adopt such a procedure in
402(c)(3) hearings. ,
WATER POLLUTION 406
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GENERAL COUNSEL OPINION
DATED APRIL 5, 1973
Maj State Permit Programs Continue to be Operated
Without an Approved Program?
Federal Water Pollution Control Ac: Amendments of 1972 — Section
402(b) — National Polluunt Discharge Elimination System — Act do«
not preclude States from adopting or enforcing requirements regarding
abatement or control of pollution, provided State does not adopt or
enforce cffluem limitations and standards less stringent lhan those under
FWPCA — Slate permii program may operate even after promulgition
of FWPCA standards and may impose requirements more stringent thin
those oT FWPCA — In order to minimize inconsistent Federal and State
requirements. State should consider the advantages of hiving in ap-
proved NPDES permii program, or at least attempt to impose State
requirements in conformsnce with standards ind deadlines tet forth in
the FWPCA,
This is in response to your letter of March IS. 1973, regarding the
National Pollutant Discharge Elimination System under ihe Federal Waier
Pollution Control Act Amendments of 1972. You have requested tome
clarification on whether State permii programs may continue to be operated
without an approved program under Section 402(b) of the FWPCA.
Section 402 of the FWPCA contemplates a cooperative Slate/Federal
discharge permit program. In cases where Stales do not apply for or receive
approval of State permit programs in conformance with the requirements of
the Act, the Environmental Protection Agency is authorized to issue NPDES
permits in those St-ates. In such cases, States have an opportunity to certify
discharges under section 401. On the other hand, where States apply for and
receive approval of State permit programs. EPA : responsibility is 10 review
permits and audit the performance of State permit programs, and may
obie-c: to the issuance of permits under certain circumstances sei forth in
sections 402(d) and (e) of the Act.
Our reading of the Ac; is that the system described above docs no; entirely
preempt the operation of a State permit program which is not approved
under section 402(b). Section 510 of the Act provides that nothing in the
F\VPCA precludes or denies the right of any State to adopt or enforce any
requirement respecting abatement or control of pollution, except thai a State
may not adopt or enforce an> effluent limitation or other standarc which is
less stringent lhan the effiueni limitations and standards in effect under ihe
FWPCA. The clear meaning of this provision is that, until limitations and
standards under the FWPCA are in effect, State permits may continue to be
issued and, even after the promulgation of FWPCA standards, a State
permit program may impose requirements more stringent than the FWPCA
standards.
157 WATER POLLUTION
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GENERAL COUNSEL OPINION DATED APRIL 5, 1973
Aside from the question of whether a Suie car. issue permits pursuant to a
program not approved under section 402, an equally important question is
whether a State should proceed with the issuance of such State permits.
Recognizing thai such permits would not be issued under or enforceable
pursuant to the FWPCA, it seems to us that it is highly advisable 10 combine
the efforts of the Sisie and Federal governments in the issuance of 2 single
permit for each poini source discharger. If the Siaic does not have authority
to issue an NPDES permit, EPA would have little choice but to proceed with
the issuance of permits which may vary from the terms of any previously
issued State permit, or, at i minimum, duplicate requirements already set
forth in a State permit. 1 think it is incumbent upon both the State and
Federal agencies to minimize; the possibility for inconsistent requirements or
duplication of requirements. In addition, there may be disadvantages in
other respects to a State in not having an approved NPDES permit program,
including possible adverse effects in terms of State program pants. There-
fore, for the reasons stated above and others, a Siate should strongly
consider the relative practical advantages and disadvantages for having an
approved program in addition to the much narrower question of whether
such a program is necessary in the legal sense.
While I think there is good and sufficient reason to strongly urge the State
of Louisiana to apply for approval of a State permit program meeting the
requirements of the FWPCA, at the time there is good reason to not break
the momentum of on-going Slate efforts. To the extent that the State can
issue permits under its on-going program prior to the application or approval
of an NPDES program, it should continue to do so, but should attempt to
impose requirements in eonformanee wiih the standards and deadlines set
forth in the FWPCA. This would help reduce the possibility that currently
issued permits might not be sufficient for purposes of the NPDES program
when the State subsequently receives approval of its program.
WATER POLLUTION tss
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC. 20460
JUN 2 6 1984
OFFICE Of
THtt ADMINISTRATOR
SUBJECT: Implementing the State/Federal Partnership in Enforcement:
State/Federal Enforcement "Agreements"
FROM: Alvin L. Aim
Depu ty Administrator
TO: Assistant Administrators
Regional Administrators
Regional Enforcement Contacts
Steering Committee on the State/Federal Enforcement
Relationship
Associate Administrator for Regional Operations
I am pleased to transmit to you a copy of the Agency's
Policy Framework for State /Federa 1 Enforcement "Agreements."
This document, along with tne program specific guidance identified
in the Appendix to the Policy, will provide the basis for
implementing an effective State/Federal enforrement relationship
through national program guidance and Reg ione 1 /State "agreements."
The Policy Framework and related program guidance reflect an
extraordinary effort for wr. ich I commend the -embers of the
Steering Committee on the State/Federal Enf or renent Relationship
and staff of tne office of Enforcement and Compliance Monitoring.
Tne Policy Framework clearly identifies oversight criteria
ana measures for assessing good compliance an- enforcement
program performance, criteria for direct federal enforcement,
notification anc consultation protocols, and state reporting
requirements. In addition, each media progra" has succeeded
in identifying wnat constitutes timely and appropriate enforcement
response. When fully developed and implements i , these State-specific
enforcement "agreements" should result in significant improvements
in the combined capacity of the States and EP-. to achieve and
maintain high levels of continuing compliance and to sustain a
staole, predictable enforcement presence.
I have informed the «State Associations and the members of
the Steering Committee that I personally intend to see that
each Region ans program follows through in applying the guidance
provided by the Policy "ramework and national program guidance
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in t h ": r"or~- ~ * " a ^reer"ff n*;. ^ " * •=-~: i o n 5 will be
the States. The success o: these efforts will depend largely
on the continued support and attention of Regional and Headquarters
senior management, Ue 3 r e making a s u Ks t 5. n t i a '; commit me n t r. o
strengthening the 31 a t e .-'" e d e r a 1 enforcement relationship and
our Lnvestment in this ,: 2 r tnersn i p should continue- to grow
with t.ne development of the "agreements." Our experience over
the next fiscal year will provide us with valuable feedback
which will better enaole us to refine the Policy Framework,
MJ r national program gui lance-, and the "agreements" themselves.
-specifically, to ensure t n e success o i this effort I ask:
•"> As s i s t a n t Ac m i n 13 t r a t o r s ;
- : : -.- -; ., r ' i n a I ; - o 4 r a : _; u i i -3 T-I c e oy J u n r.- 30 in c o n f o r ma n c e
.•/1 • .1 c n e :' "• \ \ c / •" r a •" e wo r '< ;
- c,; report ^.: me oy July 16, 1^84 on how existing
information ant mana : ;^e n t sye>"err<^ will be used to
follow progress uf ca^es agsinst milestones for
". i m e i y and appropriate e n f o r c e me nr *. c t i o n ; and
- r.o continue to proviue st.^cf support to Regions,
answering ^uestion^ and provilinq support throughout
the process,
o Regional Administrators:
- to have "agreements" in place by the r-eginning of TY
19S5 and submit to O^CM summary indices of where the
" agreements" can be located;
- to suomit copies of one sample "agreement" per Region
to OEC'-i oefore the fir^t quarter of FY 1985 so OECM
can transfer useful ideas from one Region to another;
and
- to surface significant problems to OEC'i for senior
management attention.
o Office of Enforcement and Compl i anc_e_Mp_n i tor i ng :
- to monitor our progress in implementing these
"agreements," raising issues and problems as appropriate,
reporting to me op progress, and fielding questions
on the process;
- to implement the communications strategy e.g.,
distributing copies to States through State
Associations'
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— 3 —
- t ";• review and recommend to 'Tie refinements to the'
Policy Framework and "agreements" process, as necessary,
by April 15, 1985 in consultation with the Steering
Corarni tr.ee ; a nd
- to provide leadership and staff support to the Steering
Committee on long-term issues that were identified by
them,
Attachment s
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POLICY FRAMEWORK FOR STATE/EPA ENFORCEMENT "AGREEMENTS
Achieving and maintaining a high level of compliance with
environmental laws and regulations is one of the most important
goals of federal and state environmental agencies, and is an
essential prerequisite to realizing the benefits of our regulatory
programs. While States and local governments have primary
responsibility for compliance and enforcement actions within
delegated or approved States, EPA retains responsibility for
ensuring fair and effective enforcement of federal requirements,
and a credible national deterrence to non-compliance. An
effective State/Federal partnership is critical to accomplishing
these goals, particularly given limited state and federal resources.
The task is difficult and one of the most sensitive in the
EPA/State relationship, often compounded by differences in
perspectives on what is needed to achieve compliance.
To establish an effective partnership in this area, and
implement the State/Federal enforcement relationship envisioned
in the Agency Oversight and Delegation policies, the Deputy
Administrator has called for State-specific enforcement
"agreements" to be in place by the beginning of FY 1985 which
will ensure there are: (1) clear oversight criteria, specified
in advance, for EPA to assess good State --or Regional-- compliance
and enforcement program performance; (2) clear criteria for
direct federal enforcement in delegated States with procedures
for advance consultation and notification; and (3) adequate
State reporting to ensure effective oversight.
This document is the Agency's policy framework for imple-
menting an effective State/Federal enforcement relationship
through national program guidance and Regional/State "agreements".
It is the product of a Steering Committee effort involving all
major national EPA compliance and enforcement program directors,
State Associations, State officials from each of the media programs,
and the National Governor's Association. EPA anticipates that
the relationship, and the use of the "agreements" first established
in FY 1985, will evolve and improve over time. They will be
reviewed and updated where necessary on an annual basis. There
are several areas which the Steering Committee identified for
longer term evaluation and development. The policy framework also
will be subject to mid-course review and possible refinement
during FY 1985.
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Fram e w o rk 0 v e r v i e w
The policy framework applies both to headquarters program
offices in their development of national guidance and to Regions
in tailoring program guidance to State-specific needs and
"agreements." The policy framework is divided into six sections,
to address the following key areas:
A. Sta^e/Federjl Enforcement "Agreements": Form, Scope and
Sub¥t^anqe rpages 4-7 ) "
This section sets Eorth the priorities for Regions and States
to develop enforcement "agreements," the areas that should be
d'scussed and the dearie of flexibility that Regions have in
tailoring national guidance to state-specific circumstances.
3 . Overs ight Cr i teci_a_and Measures : Defining Good Performa^nce
S-14)
Tr. ~^ section is> prim at i. ly addressed to EPA ' s national programs,
setting forth uritsru and measures tot defining good
performance generally applicable to any compliance and
enforcement program whether administered by EPA or a State.
It terms the basis tor EPA oversight of State programs.
A Key ">ew area that should receive careful review is the
aeiinition of what constitutes timely and appropriate
enforcement response , Section B, Criterion *5, pages 11-13.
C. Oversight Procedures and Protocols (pages i5-16)
This section sets forth principles for EPA s approach and
process for and follow-up to our ov-ersight responsibilities.
D . Criteria for Direct^Federal Enforcement in Delegated States
Tpages 17-20 j —~~ —
This section sets forth the factors EPA will consider before
taking direct enforcement action in a delegated State and
what States may reasonably expect of EPA in this regard
including the types of cases and consideration of whether a -
State is taking timely and appropriate enforcement action.
It also establishes principles for how EPA should take enforce-
ment action so that we can be most supportive of strengthening
State programs.
E. Advance Notif i cation _and Consultation (pages 21-23)
*r
This section sets forth EPA ' s policy of "no surprises" and
what arrangements must be made with each State to ensure the
policy is effectively carried out by addressing planned
inspections, enforcement actions, press releases, dispute
resolution and assurances that publicly reported- performance
data is accurate.
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F. State Reporting (pages 2 4 - 2 b )
This section sets forth seven key measures EPA will use, at a
minimum, to manage and oversee performance by Regions and
States. It summarizes state and regional reporting requirements
for: (1) compliance rates; (2) progress in reducing significant
non-compliance; (3) inspection activities; (4) formal adminis-
trative enforcement actions; and (5) judicial actions, at
least on a quarterly basis. It also discusses required
commitments for inspections ana for addressing significant
non-compliance.
In addition, it sets forth state and regional requirements for
recorcikeeping and evaluation of key milestones to assess the
timeliness of their enforcement response and penalties imposed
through those actions.
Appendix
The Appendix provides a summary index of what national
program guidance has been or will be issued by programs to
address the areas covered by the Policy Framework for State/EPA
Enforcement "Agreements."
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A. STATE/FEDERAL ENFORCEMENT "AGREEMENTS": FORM, SCOPE, AND SU3STANC;
This section sets forth the form, scope and substance of the
State/Federal Enforcement "Agreements" as well as the degree of
flexibility Regions have in tailoring national policy to individual
S tates -
I. ^hat Fuctn Should tftj ........ "Agreements" Take?
W« do rv t anticipate the need COL- a new vehicle or document
tor •. hfe 3 t ute/Pederal 3nf orceroent "•agreements," Wherever possible,
S tac3,/tr^d'j -. - '-- 'agreements" should be set forth in one or more of
a number ";£' existing formats; grant agreements, State/EPA Agreements,
Mtrffior -inac. . .': Agreement or Understanding or a statement of Regional
Office ^pet-ilLng poJicy. To the extent the areas covered by
thi;» policy framework translate into specific output commitments
and formal ,-eporting requirements, they may belong in the grant
agr3ep>er.ts *s specified in national program grant guidance.
2 * »jhac is tne Scope of the "Agreements"?
This '.jiii dance and f.he State/EPA "agreements" cover all
aspects of EPA's civil compliance and enforcement programs,
including :.hoae activities involving federal facilities. The
criminal enforcement program is not included and will be addressed
elsewhere.
Discassiuns between EPA Regions and States should cover the
minimum areas listed below;
o Oversight Criteria and; Measures; Good Performance Defined
--See Section B,
o Oversight Procedures and Protocols — See Section C.
o Criteria for Direct EPA Enforcement -~ See Section D,
o procedures for Advance Notif ication_a_nd Consultation — See
Section" E. ' ' " : = ~ "
o R.e£O£tjjric[_R eg u i_r erne n t s -- See Section F.
*
However, Regions and States are not expected to duplicate national
program guidance in their "agreements" -- we are not looking for
lengthy documents. Written "agreements" resulting from these
discussions would cover topics which are not clearly specified
elsewhere, no: ..... otherw^s^ec^f ied , _ "
ly and should oe so stated in the state "agreements.
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For FY 1985, the Regions and States should reflect the
following priorities in discussions and "agreements"; :
Definingexpectations for timely and appropriate_en£orcement
action —particularly;(a) establishing a management
framework with the State for following progress for significant
non-compiler cases against timely and appropriate milestones;
and (b) identifying where penalties or equivalent sanctions
are important;
Reporting of __S t a te data — ensuring timeliness and resolving
definitional and quality control problems in reported
data; and
- Establi_shi_ng_ProtocoJ.s for Advance Notification and
Consultation.
Oversight criteria would generally be provided in national
program guidance but Regions may need to tailor definitions
of timely and appropriate action and other specific areas of
concern that are unique to an individual State, including areas
targeted for improvement. Similarly, while this document sets
forth general criteria for direct EPA enforcement, programs
and Regions may need to tailor the criteria not only to define
timely and appropriate enforcement action, but also to address
environmental and other priorities of the program. Region or
State.
Each "agreement" should be careful to note that nothing in
them would constitute or create a valid defense to regulated
parties in violation of environmental statutes, regulations or
permi ts»
3. What Flexibility do Regions Have?
Regions must be allowed substantial flexibility to tailor
"agreements* to each state. However, that flexibility should be
exercised within the framework of national program policy and
the Agency's broad objectives. Specifically,
Definitions; Regions should reach agreement with States as
to how certain state enforcement actions will be reported
to and interpreted by EPA. This should be based upon
the essential characteristics and impact of state enforcement
actions and not merely upon what the actions are called.
Where penalties are required, for example, state actions
for equivalent sanctions also are acceptable. National
program guidance setting forth consistent criteria for this
purpose should be followed. Also, see the discussion in
Section B. pages 11-13.
Timeliness: The national program guidance on key milestones
and timeframes should be applied to all States with adjustments
to accommodate each state's laws and procedures. Such adjustments
can be important particularly where the proposed enforcement
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action cannot possibly take place within the proposed time frames
or where a State chooses to address problems more expeditiously
than the federal gu ideli-nes. Other adjustments should not
be made solely because a state program consistently takes
longer to process t^>ese actions due to constraints other
than procedural requirements, e.g., resources. However, if
this is the case the timeframes should serve as a basis cor
reviewing impediments with the State to identify how problems
can be overcome and to explore ways over time for the state
program to perform more efficiently,
rh^ cimerrames are nor. intended to be rigid deadlines for
stcri.on, but rather are: (1) general targets to strive for
\n qoocl program performance; (2) trigger points that EPA
dm; of. at us should -;sj to review progress in individual
:ai.-fts: rind i J ; pr .j sumpL. ions that, if exceeded, EPA may take
iiirect enforcement .iction after consideration of all pertinent
r'o'jtor.s and consuitai LOU with the State. It is not the
\gency "u intention -.-. assume the major enforcement role in
i ::eleqated State 5s j>. result of these timeframes. The
r.] j.gqer points should be realistic expectations, but within
jiodesr, variance from the national goals. It must also be
'calizGd that in some programs we need experience with the
>•.imeframes to assess how reasonable and workable they really
ire 'jnd further, that judgments on what is a reasonable
i..unetable for action must ultimately be case specific. For
example, complex compliance problems may require longer-term
.i t'id ies ro define or achieve an appropriate remedy.
r^pjgjrojjr i a t e E n f g r c erne n t R e s pons e : National program guidance
nn appropriate enforcement response should be followed.
There is usually suf-icient flexibility within such guidance
co allow the exercise of discretion on how best to apply
che policies to individual cases. The Agency is making
every effort to set forth a consistent national policy on
enforcement response for-each program. It is therefore
essential that in setting forth clear expectations with
States that this guidance not be altered. For example,
program guidance should not be altered simply because of
differing State views on where penalties should be assessed.-
State actions imposing equivalent sanctions, however, are
acceptable e.g./ license revocation. Further, with limited
exceptions noted on page 18, EPA will not override a State
action based upon penalty amounts in the absence of clear
guidance applicable to both States and Regions. See discussion
in Section D. page 18*
ft
Procedures an-d Protocols; Regions and States should have
ma~xTmum f~IexibiTTty to Fashion arrangements that are most
conducive to a constructive relationship, following the
broad principles outlined in this document.
A di us ting o utpu t_$__ and c omm i t me n t s tc^ J5_t a t e res o u r ce s ;
Because the FY 1985 Budget has already been developed, the
Oversight Criteria and protocols should be implemented so
as not to impose additional resource requirements or expected
-------
output levels for FY 1985 beyond those already established
for States, This does not apply to the minimum reporting
requirements identified by the Steering Committee to ensure
effective oversight. In FY 1985 this policy framework is
intended to affect how we do business, not how much of it
we do. In addition, while of necessity EPA must emphasize
commitments by States to address significant non-compliance
and major sources of concern, Regions should be sensitive to
the broad concerns of State programs including minor sources
and the need to be responsive to citizen complaints.
4. Wh^at Does it Mean to Reach "Agreement"^?
To the extent possible, these "agreements" should reflect
mutual understandings and expectations for the conduct of federal
and stdte enforcement programs. Agreement may not be possible
in all States. At a minimum, EPA Regions must: (1) be clear
and ensure there are "no surprises*1; (2) make arrangements with
the States so that actions taken are constructive and supportive;
and (3) tailor the application of the national program guidance
to the States' programs and autnorities. Where mutual agreement
cannot be achieved, clear unilateral statements of policy will
have to suffice, with commitments to try to seek further agreements
over time. Areas where agreements have not been reached should
be clearly identified for senior Agency management attention.
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B. OVERSIGHT CRITERIA AND MEASURES: DEFINING GOOD PERFORMANCE
The first step to achieving strong and effective national
compliance and enforcement, programs is a clear definition of
what constitutes good performance. Because each of EPA's programs
embodies unique requirements and approaches, good performance
must be defined on a program-specific basis. Adjustments also
must be made in applying criteria and measures to the States
and Key ions, based -jpo;i their environmental problems and
authorities. Nevertheless, there are several basic elements
which will generally be applicable to a good compliance and
enforcement program in any of our media-specific programs.
The following outlines the criteria and measure? that form
that -roramon framework for defining a quality program. The
framework is co serve -is a guide to the national programs as
they develop, in cooperation with Regions and States, the
criteria they will use to assess their performance in implementing
national compliance and enforcement programs.
The framework, is not intended to be adopted word-for-word
by the programs, nor is there any format implied by this list,
What is important are the concepts. This section addresses
only the elements of a quality program. Issues such as how
oversight""'shouTcT'be conducted are addressed i.n section C. Each
national program may choose to focus on certain elements of
performance in a giver, year.
These criteria and measures are intendec to apply to
the implementing agency, that isr, to an approved or delegated
State or to. an EPA Region in the event a program is not
"delegated," Our philosophy is that EPA should be held to
the same standards as we would apply to the States if they
were implementing the program*- Portions may also apply to
those non-approved or non-delegated States which are
administering portions of the programs under cooperative
agreements.
CRITERION SI Clear Identi£icat^on_Q£_and Priorities for
"the~Reg'ulateB" Community
A quality compliance and enforcement program is based
upon an inventory of regulated sources which is complete,
accurate and current. The data should in turn be accessible,
preferrably in automated -data systems which are accurate, and
up-to-date. The scope of coverage for the inventory should
be appropriately defined by each program as it is probably
not feasible to identify every person or facility subject to
environmental laws and regulations, especially when they are
numerous small sources. Those priorities should be clearly
established in national program guidance and tailored to
State-specific circumstances as appropriate.
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The inventory of sources should be utilized as a basis for
a priority setting system established by the administering agency
These priorities should reflect and balance both national
priorities and state-specific priorities. A quality program
uses those priorities as a basis for program management.
National priorities are generally set forth in EPA' s Operating
Year Guidance and program specific compliance and enforcement
strategies. State-specific priorities should address not
only efforts to achieve broad based compliance but also should
assess the expected environmental impact of targeting enforcement
and compliance monitoring to specific geographic areas or
against certain source types. Ambient monitoring systems
can provide an important point of departure for priority
setting.
CRITERION *2 Clear and Enforceable Requirements
Requirements established through permits, administrative
orders and consent aecrees should clearly define what a
specific source must do by a date certain, in enforceable
terms. It is not EPA's intention in this policy framework to
suggest that EPA conduct a top down review of a State or
Regional program's entire regulatory program. However,
areas where provisions cannot be enforced due to lack of
clarity or enforceable conditions should be identified and
corrected,
CRITERION 13 Accurate and Reliable Compliance Hgnitoring
There are four objectives of compliance monitoring:
reviewing source compliance status to identify
potent ial violations;
helping to estah.lj.sh an enforcement presence;
collecting evidence necessary to support enforcement
actions regarding identified violations; and
developing an understanding of compliance patterns
of the regulated community to aid in targeting
activity, establishing compliance/enforcement
priorities, evaluating strategies, and communicating
information to the public.
The two factors in assessing the success of a compliance
monitoring program are coverage and quality,
Coverage: Each program's strategy should reflect a balance
between coverage: (1) for breadth, co substantiate the reli-
ability of compliance statistics and establish an enforcement
presence; and (2) for targeting those sources most likely to
be out of compliance or those violations presenting the most
serious environmental or public health risk.
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10
j_n_spect ions : Each administering agency should have a
wFitten and reviewable inspection strategy, reviewed and
updated annually, as appropriate: in some programs a
multi-year strategy may be preferable. The strategy
should demonstrate the minimum coverage for reliable
data gathering and compliance assessment set forth in
national program guidance and meet legal requirements
for a "neutral inspection scheme". The strategy shoul-d
also address how the inspections will most effectively
reach priority concerns and potential non-compilers including
ths use of self reported data, citizen complaints and
'-. 1st. or v c romplianco patterns. The strategy will be
•i.s;-; gssed on whether it embodies the appropriate mix of
categories of inspections, frequency and level o£ detail.
L r." pecc ions should then be carried out in a manner
"O^Ris^ent- w i. th the inspection strategy.
Juuj. cfc ^e-L^f-Moni tor ing and Reporting : The administering
•agency should ensure that minimum national requirements
:o- jOL-rcf.' .^elf-mom conriq and reporting are imposed
and complied with, either through regulation or permit
condition, pursuant to national guidance as appropriate.
Judo. L cy . Each program should define minimum standards for
quality assurance of data ano data systems, and timely and
complete documentation of results. At a minimum, each program
snoLj.i.1 >". 3^t a quality assurance program to insure the integrity
of. the :ompl i.ance monitoring program. This quality assurance
program should address essential lab analysis and chain of
custody Issuer as Appropriate,
I nspec fc ^qnjs : Inspectors should be able tc accurately
determine the nature and extent of violations, particularly
-he presence of significant violations. Documentation
of inspection findings should be timely, complete and
able to support subsequent enforcement responses , as
appropriate to the purpose of the inspection. Federal
oversight inspections should corroborate findings.
Oversight inspections are a principal means of evaluating
both the quality of an inspection program and inspector
training.
Source Self Monitoring: The administering agency should
have a strategy for and implement quality assurance
procedures, with sufficient audits and foilow-up action
to ensure the integrity of self -reported data,
CRITERION 14 High or Improving Rates of Continuing Compliance
The long-term goal of all o£ our compliance and enforcement
programs is to achieve high rates of continuing compliance
across the broad spectrum of the regulated community. Until
that goal is achieved, compliance rates can fluctuate for
several reasons. In assessing how well an administering
agency is meeting the goal ot" high or improving rates of
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11
compliance, other factors must be assessed in addition to
the overall compliance rate. Improved inspections or inspection
targeting often can result in a temporary decrease in rates
of compliance until newly found violations are corrected and
the regulated community responds to the more vigorous attention
to specific compliance problems. In these instances, a
decrease in the rate of compliance would be a sign of a
healthy compliance and enforcement program. At a minimum,
programs should design mechanisms to track the progress of
all sources out of compliance through major milestones up to
achieving final physical (full) compliance with applicable
regulations and standards.
Program quality must also be assessed in terms of how well
the program is returning significant non-compliers to compliance.
The use of lists of significant violators and specific commitments
to track and resolve significant non-compliance should be
part of the planning process of the administering agency,
and, between States and Regions. The lists should be developed
and continually updated each fiscal year and sources on it
tracked through to final physical compliance.
CRITERION t5_ Timely and Appropriate Enforcement Response
Quality enforcement programs ensure that there is timely
and appropriate enforcement response to violations. Expectations
for what constitutes timely and appropriate action should be
based upon national program guidance, tailored to the procedures
and authorities in a given State and assessed in regard to
particular circumstances surrounding each instance of violation.
National programs must establish, benchmarks or milestones.
for what constitutes timely and appropriate enforcement
action, forcing progress in enforcement cases toward ultimate
resolution and full physical compliance. This concept is a
key new feature to our compliance and enforcement program
implementation.
In aesigning oversight criteria for timely enforcement
response, each program will attempt to capture the following
concepts:
1. A set number of days from "detection" of a violation
to an initial response. Each program should clearly
define when the clock starts, that is, how and when
a violation is "detected."
2. Over a specified period of time, a full range of enforce-
ment tools may be used to try to achieve compliance,
including notices of violation, warning letters, phone
calls, site visits, etc.. The adequacy of these r^snonses
will be assessed based upon whether they result in
expeditious compliance.
3. A prescribed number of days from initial action within
which a determination should generally be made, that
either compliance has been achieved or an administrative
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12
enforcement action has been taken (or a judicial
referral has been initiated, as appropriate) that,
at a minimum:
Explicitly requires recipient to take some corrective,
remedial action, err refrain from certain behavior,
to achieve or ma !. ntain comp 1 iance;
Explicitly is based on the issuing Agency's deter-
mination that a violation has occurred;
{' J Requires specific corrective action, or specifies
d desired result that may bt accomplished however
the recipient chooses, and specifies a timetable
£or completion;
May impose requirements in addition to ones relating
directly tc correction (e.g., specific monitoring,
planning or reporting requirements); and
Domains requirements that are independently enforce-
•icle without having to prove original violation and
subjects the person to adverse legal consequences
for non-compliance.
A specific point at which a determination is made
either that final physical compliance has been
achieved, that the source is in compliance with a
milestone in a prior order, or that escalation to a
judicial enforcement action has been taken if such
actions have not already been initiated.
f
In developing program-specific guidance/ this
milestone may be treated more as a concept than as
a fixed timetable. This is because often times
the process is out of. the control of the administering
agency, e.g., the administrative hearing process
or the State Attorney General's action. What is
important, is the embodiment of the concept of
timely follow-up and escalation, in requirements
for tracking and management.
Final physical compliance date is firmly established
and required of the facility. Although it is not
possible for programs to establish any national
timeframes, the concept of final physical compliance
by a date certain should be embodied in EPA and
State enforcement actions.
Expeditious physical compliance is required. It may
not be possible for programs to define "expeditious"
in terms of set time periods, but some concept of
"expeditious" (i.e., that the schedule will result
in a return to full physical compliance as quickly
as can reasonably be expected) should be embodied
in each program's guidance.
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13
Tiroeframes established by the national programs for each
of these minimum milestones are principally intended to
serve as trigger points and not as absolute deadlines, unless
specifically defined as such. Whatever timeframes are established
are intended to apply only to federal requirements as adopted
by the States, and do not apply to state statutes and require-
ments that go beyond those required by federal law. The
timeframes are key milestones to be used to manage the program,
to trigger review of progress in specific cases, and a presumption
of where EPA may take direct enforcement action after consideration
of all pertinent factors and consultation with the State.
Timeframes and their use in management will evolve over
time as they will have to reflect different types of problems
that may warrant different treatment. For example, programs
will have to take into account such factors as new types of
¥iolations, the difference between operating and maintenance
violations versus those that require installation of control
equipment, emergency situations which may fall outside the
scope of the normal timeframes for action, etc.
Administering agencies are expected to address the full
range of violations in their enforcement responses considering
the specific factors of the case and the need to maintain a
credible enforcement presence. However, the new management
approach setting forth desired timeframes for timely action
could have resource implications beyond what is currently
available to or appropriate for the full range of sources
and violations. Therefore, as we begin to employ the concept
of timely and appropriate enforcement response, at a minimum,
the focus should be on the greatest problems, i.e., the
significant non-compliers. Over time, and with more experience,
this concept should be phased-in to cover a broader range of
violations. This in no way should constrain the programs
from applying the concepts broadly.
The choice of appropriate response is to be defined
by each national program and applied by the administering
agency based upon consideration of what is needed; (1) in
general, to achieve expeditious correction of the violation,
deterrence to future non-compliance and fairness; and (2)
in individual circumstances, based upon the gravity of the
violation, the circumstances surrounding the violation, the
source's prior record of compliance and the economic benefits
accrued from non-compliance, with three exceptions, the
form of the enforcement response is not important by itself,
as long as it achieves the desired compliance result. The
exceptions generally fall into the following three categories:
1, If compliance has not been achieved within a certain
timeframe, the enforcement response should meet
minimum requirements, usually associated with at
least the issuance of an administrative order (see
criteria listed above) or judicial referral.
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14
Because of tne need to create a strong deterrence
to non-compliance, it is important to assess penalties
in certain cases, and only certain enforcement vehicles
can provide penalties. Each program must clearly
define, as appropriate, the circumstances under which
nothing less than a penalty or equivalent sanction
will be acceptable.
In some circumstances, a judicial action or sanction
\.~ usually the only acceptable enforcement tool. Each
t,rog;: am must define these circumstances as appropriate.
for "ixample, a judicial action might be required
where a compliance schedule for federal requirements
goes beyond federal statutory deadlines.
u ;oo« ^rogrrim should nave aa
acnievs *.!•<;•.' -jbove objectives. Where
identified, steps should be taken to
legal authority to
deficiencies have been
rill identified gaps.
CRITERION f6_ Accurate_Recgrdk6eping and Reporting
« uua-Aty program maintains accurate ana up-to-date
files anH records on source performance and enforcement
response.: that ire reviewable and accessible. All record-
keeping *nd reporting should meet the requirements of
the quality assurance management policy and procedures
establishes by oach national program consistent with the Agency's
Moni-or-ng Policy and Quality Assurance Management System.
Reports Crow States to Regions? legions to Headquarters must
be timely, complete and accurate to support effective program
evaluation and priority setting. '
CRITERION _|7_ Sound Overall Prggra;ro_Management
A quality program should have an adequate level, mix
and utilization of resources, qualified and trained staff,
and adequate equipment. The intention here is not to
focus on resource and training issues unless there is poor
performance identified elsewhere in the program. In those
instances, these measures can provide a basis for corrective
action by the administering agency. There may be, however,
some circumstances in which base level of trained staff and
equipment can be defined by a 'national program where it
will be utilized as an indicator of whether the program is
adequate.
Similarly, a good compliance and enforcement program
should have a clear scheme for how the operations of other
related organizations, agencies and levels of government fit
into the program. Again, this is a matter which would be
given attention to the extent problems have been identified,
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15
C. OVERSIGHT PROCEDURES AND PROTOCOLS
This section addresses how EPA should conduct its oversight
function, its approach, process and follow-up, to build and improve
individual programs and overall national performance.
1. Approach
The goal of oversight should be to improve the state {or Regional)
compliance and enforcement program. To accomplish this, oversight should
be tailored to fit State performance and capability. The context must
be the whole state compliance and enforcement program, although EPA's
focus for audit purposes will be on national priority areas.
No new oversight process is intended here. Existing procedures
such as mid-year reviews, periodic audits and oversight inspections as
established by each program and Region should be used. However, EPA
oversight of state performance should be consistent with the following
principles:
a. Positive oversight findings should be stressed as well as the
negative ones.
b. Positive steps that can be taken to build the capability of state
programs in problem areas should be emphasized. This should include
providing technical assistance and training -- by EPA staff to the
extent possible.
c. EPA action to correct problems should vary, depending on the
environmental or public health effect of the problem and whether it
reflects a single incident or a general problem with the state
program.
d. Feedback between the St~at.es and EPA should be a two-way street.
The States should be given an opportunity to comment on EPA's
performance.
e. EPA should give States sufficient opportunity to correct identified
problems, and take corrective action pursuant to the criteria for
direct enforcement established in Section D,
f. EPA should use the oversight process as a means of transferring
successful regional and state approaches from one Region or State
to the other.
2. Process
Several actions can result in the most constructive review of the
State's programs:
a. To the extent possible, files to be audited will be identified
in advance, with some provision £or random review of a percentage
of other files if necessary.
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16
b. Experienced personnel should be used to conduct the audit/review
--- EPA staff should be used to the extent possible to build
relationships and expertise,
c, There should be an exit interview and every opportunity should be
made to discuss findings, comment on and identify corrective steps
based upon a review draft of the written report.
d. Opportunity should be made for staffs interacting on enforcement
cases and overseeing State performance to meet personally rather
chan -cly solely upon formal communications -- this applies to bot
ca1 and Legal staffs.
'-'? and Consequences of _0¥ers ight
Wh<-» - .State performance- meets or exceeds the criteria and measures
coc de> :-
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17
D. CRITERIA FOR DIRECT FEDERAL ENFORCEMENT IN DELEGATED STATES
This section addresses criteria defining circumstances under
which approved State programs might expect direct federal enforce-
ment action and how EPA will carry out such actions so as to be
most supportive of strengthening State programs.
1. When fj^ght EPA Take Direct Enforcement Action?
A clear de£inition of roles and responsibilities is essential
to an effective partnership. In delegated programs, primary
responsibility for action resides with State or local governments
with EPA taking action principally where a State is "unwilling
or unable" to take "timely and appropriate" enforcement action.
Many States view it as a failure of their program if EPA takes
an enforcement action. This is not the approach or view adopted
here. There are circumstances in which EPA may want to support
the broad national interest in creating an effective deterrent
to non-compliance beyond what a State may need to do to achieve
compliance in an individual case or to support its own program.
Because States have primary responsibility and EPA clearly
does not have the resources to take action on or to review in
detail any and all violations, EPA will circumscribe its actions
to the areas listed below and address other issues concerning
State enforcement action in the context of its broader oversight
responsibilities. Following are factors which EPA will consider
in deciding whether to take direct action:
Type of Case
a. Violation of EPA order or consent decree
b. State requests EPA action
c. Cases specifically designated as nationally significant
(e.g., significant non-compliers, explicit national or
regional priorities)
d. Legal precedents
e. Interstate issues
f. Significant environmental or public health damage or
risk involved
g. Significant economic benefit gained by violator
h. Repeat violators
i. Areas where State authority may be inadequate
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18
Based or, this general guidance, each program office may develop
more specific guidance on the types of violations on which EPA
should focus,
T_imely and Appropriate Action by the State
The fact that a case may fit into one of the categories
usted above does not mandate nor imply that EPA will take
enforcement action. Several factors must be taken into account
including che judgment of EPA staff, tht availability of EPA
T«?sourc=3, and a determination of whether the State-, has taken or
:ar tak* timely and appropriate enforcement action as defined by
nat^jnai ptogram guidance and State/Regional "agreements." These
cons ;, derations -jre de term in ing F a •? tors for cases falling within
-.he J-;>i ' ">winq criteria: ic) "ati'j.ial priorities;
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19
In FY 1985, except for the limitation noted above, the '-
Agency will focus on whether the State has imposed a penalty in
appropriate cases and not on the amount of the penalty for the
purposes of considering direct action unless guidance on penalty
amounts applicable to States is in place. Where it is needed,
each program will be developing more explicit guidance to,both
EP& Regions and States on penalty amounts to be applicable in FY
1986, State and Regional penalty assessments will, however,
continue to be an area of review as EPA conducts audits and
oversight of State programs.
2. How Should EPATakeAction So As To Better Support Strong
State Programs?
Section E describes in some detail the principles and
procedures for advance notification and consultation with States,
These are imperatives for a sound working relationship. There
are several other approaches identified here for how EPA can take
enforcement action, where it is appropriate, in a manner which
can better support States,
To the maximum extent possible, EPA should make arrangements
with States to;
a. Take _joint State/Federal action -- particularly where a
State is responsibly moving to correct a violation but
lacks the necessary authorities, resources or national
or interstate perspective appropriate to the case;
b. Use_5tate inspection _qr_other data and witnesses, as
appropriate;
c. Arrange for penalties (in part or _in _w_hole) to accrue^
to States -- to the extent it is legally possible to do
so e.g., through joint action;
d. I nvolve States _i.n _cre_ati_ve_settlen>ents — so that the
credibility of States as the primary actor is perceived
and realized;
e. Issue joint press jre_le_ases jind share _credit with the_
State " to ensure ^EPA is not in competition with tEe
State and that EPA action is not erroneously perceived
as a weakness or failure in the State's program; and
f, Keep States continually apprised of events and reasons
for federal ac_tions ~- to avoid conflicting actions
and to build a common understanding of goals and
the State and federal perspectives.
3. How Do the Expectations _f_or _MTjjnely_and Appropriate Action"_
Apply toEPA in^D ejjs g a_t e d_ S tdi, e 5 ?
In delegated States, EPA performs an oversight function,
standing ready to take direct federal enforcement action based
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20
upon the factors stated above. In its oversight capacity, in
most caseL. EPA will not obtain real-time data. As indicated in
Section F on State Reporting, EPA will receive quarterly reports
and will supplement these with more frequent informal communi-
cations on the status of key cases. Therefore, we do not expect
EPA Regions through their oversight to be able to take direct
enforcement action following the exact same timeframes as those
that apply to the administering agency. However, when EPA does
determine it is appropriate to take direct federal action, EPA
staff are expected to adhere to the same timeframes as applicable
to th
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21
E. ADVANCE NOTIFICATION AND CONSULTATION
A policy of "no surprises" must be the centerpiece of any
effort to ensure the productive use of limited federal and
state resources and an effective "partnership" in achieving
compliance. This principle should be applied to all aspects of
the compliance and enforcement program covering inspections,
enforcement activities, press releases and public information/
and management data summaries upon which State and national
performance are assessed.J_i
In order to guarantee that there is ample advance notification
and consultation between the proper state and federal officials,
EPA Regions should confer annually with each State, discuss the
following areas and devise agreements as appropriate. The
agreements should be unique to each State and need not cover
all areas -- so long as there is a clear understanding and
discussion of how each area will be addressed.
1. Advance Notification to Affected States of Intended
Inspections and Enforcement Actions
Agreements should identify:
- who should be notified, e.g.
-- the head of the program if it involves potential
federal enforcement; and
-- who is notified of proposed/planned federal
inspections.
- how the State will be notified, e.g.
^~the agencies share inspection lists; and
-- the agency contact receives a telephone call on a
proposed federal enforcement case.
- wjren they will be notified -- at what point(s) in
the process, e.g.
-- when a case is being considered; and/or
— when a case is ready to be referred, or notice
order issued.
In cases where other States or jurisdictions may be directly
and materially affected .by the violation, i.e., environmental
or public health impacts,, EPA' s Regional Offices should attempt
to notify all of the States that are interested parties or are
affected by the enforcement action through the communication
channels established by the State "agreements," working through
the appropriate Regional Office. This notification process is
particularly important for hazardous waste cases in which
regulatees often operate across State boundaries.
J_i Note that the Policy Framework does not apply to the criminal
enforcement program.
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Protocols for advance notification must be established
with the understanding that, each party will respect the other's
need for confidentiality and'discretion in regard to the information
oeing shared, where it is appropriate. Continuing problems in
this regard will be cause for exceptions to the basic principle
of advance notification,
Many or our statutes or regulations already specify pro-
cedures for advance notification of the State, The State/Federal
"agreements* are intended to supplement", these minimum requirements,
'': ^atab^snrnent of _a Consultative Process
Arr.-a.ict notification is only an essential first step and
li'.-.oui-l nof f>e ^onsirutt-i as, the desired end result of these
3 t.a ce,"-'::-r: L.n ' agreement:. . '" The processes established should
b^ -rons'j 11 at Lv,.- ^nd should be designed to achieve the following:
a, ,nsgectipns
Advance notice to States through sharing of lists of
pianr><~d federal inspections should be designed so
that state and tederal agencies can properly coordinate
th-i scheduling of site inspections and facilitate
;oin.r or multi-media inspections as appropriate.
This should generally be done for all programs whether
cr ;iOt they are delegated, except for investigative
inspections which would be jeopardized by this process.
b. Enforcement Actions
Feac-ra* and state ofticials must be able to keep one
ancther current on the status of enforcement actions
against non-complying facilities. Regularly scheduled
meetings or conference calls at which active and
proposed cases and inspections are discussed may
achieve these purposes. At any point in the process,
federal officials may defer to an appropriate state
response.
3. Sharing Inspection Results
The Region and State should discuss the need for a process
to share, as much as practicable, inspection results, monitoring
reports, evidence, including testimony, where applicable for
federal and/or state enforcement proceedings.
*
4. Dispute Resolution
The legion and State should agree in advance on a process
for resolving disputes, especially differences in interpretation
of regulations or program goals as they may affect resolution of
individual instances of non-compliance.
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23
5, Press_Releases and Public Information
EPA has made commitments to account publicly for its
compliance and enforcement programs. EPA also has made use of
press releases as a means of enhancing the deterrence potential
of its enforcement actions. While state philosophies on these
matters may vary, the Region and State should discuss opportuni-
ties for ]oint press releases on enforcement actions and public
accounting of both state and federal accomplishments in compliance
and enforcement.
Discussions should address how and when this coordination
would take place. To the extent possible, EPA generated press
releases and public information reports should acknowledge and
give credit to relevant state actions and accomplishments.
6. Publicly __Rep_orted Perf ormance .Data
Regions should discuss with States mechanisms for ensuring
the accuracy of data used to generate monthly, quarterly and/or
annual reports on the status of state and federal compliance
and enforcement activities. Opportunities should be provided
to verify the accuracy of the data with the States prior to
transmittal to headquarters. Time constraints may be a real
limitation on what can be accomplished, but it is important -to
establish appropriate checks and control points if we are to
provide an accurate reflection of our mutual accomplishments.
If there are no data accuracy concerns these mechanisms may
not be needed.
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F. STATE REPORTING
This section reviews key reporting and recordkeeping
requirements for management data and public reporting on
compliance and enforcement program accomplishments. It also
addresses related reporting considerations such as reporting
frequency and quality assurance.
1 . Overview
A scionq and well managed national compliance and enforce-
ment pngram -~,eeds reliable performance information on which
to ludcje success -.ind identify are^s needing management attention.
Thf rol 1 •'••w ' -; : M tl in^r; th.r- reporting and recordkeeping framework
for "\oni ;• , i. i ~.'j enforcement and compliance program performance
tha--. wj 1 - :.-:m the basis of EPA'b FY L985 Strategic Planning
and ManaQe^e"-*1- System component on enforcement. The information
will be used by the Agency's chief executives to manage EPA
operations, _ind *:o convey our combined federal and state
performance record to others outside the Agency. This framework
is limited i' its application to information gathered for
management purposes. It is not intended to apply to the
environmenta ' data and reporting on a source-by-source basis
which is gathered routinely by the Agency from Regions and
States under its source reporting programs and ongoing operations
The framework should serve as a stable guide to the national
programs jis they develop, in cooperation witn the Regions
and States -.he measures and reporting requirements they
will use t" assess performance in implementing national
compliance and enforcement programs.
In FY 1985 we will use five measures of compliance and
enforcement performance for reporting purposes, identified in
sequence below. The first two measure compliance results:
(1) overall compliance rate for the regulated community; and
(2) correction of the most significant violations. The
Agency is working diligently to establish clear and reliable
indicators for these two measures, recognizing the desirability
of managing based as much as possible on results. While it
is most desirable to find ways to ultimately examine the
environmental benefits of compliance and enforcement actions,
i.e., pollution levels reduced, this will not be accomplished
in time for the FY 1985 planning and management cycle,
The two compliance cesults measures are supplemented
with three measures of enforcement activity: (3) inspection
levels as an indicator of the reliability of compliance data
and as an indicator of field presence for deterrence purposes;
(4} formal administrative enforcement actions undertaken; and
(5) judicial referrals and filed court cases, the latter two
measures of enforcement activities both serving as indicators
of enforcement strength and the will to enforce.
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In addition to these five reporting requirements, the
Agency is introducing two new areas of recordkeeping require-
ments to support general management oversight of the national
enforcement effort: (1} success in meeting new management
milestones for defining timely and appropriate enforcement
action; and (2) the level of penalties assessed and collected.
For FY 1985 records should be maintained by States and Regions
for review during the course of the year and to support an
assessment at the end of the year on how well the agencies
have done and how appropriate performance expectations might
best be defined.
2, Reported Measures of Performance
Programs and Regions should ensure the first five measures
of performance are required to be reported on a quarterly
basis:
a. Compliance levels can be measured according to several
different approaches. National program guidance should
describe the approach each has selected as most appropriate
given the characteristics of its program and regulated
community. Each program should, at a minimum, report
full physical compliance rates and also distinguish
where relevant in reporting compliance levels between
final "physical" compliance (compliance with., emissions
limits) and "paper" compliance {violation of emissions
limits but following a compliance schedule).
b. Pjrpgress in_Returninq Significant Violations to Compliance:
E"ach program in putting together its guidance should
specifically define what .it measures as significant
violations. Lists of significant violators must be
compiled by Region and State. The Agency has two indicators
of performance in this area: one is a static measure
of progress against a- beginning-of-year backlog of
significant violators not yet brought into compliance.
The second is a dynamic balance sheet which adds to the
beginning-of-year inventory any new significant violators
as they are found and keeps a running tally of those for
which a formal enforcement action was taken, those
which were brought into compliance, or those which
remain, pending enforcement action. Each program should
provide for reporting against both measures.
Each program should also anticipate being required'to set
quarterly targets,for reduction of its beginning-of-year
backlog of significant violators. Targets will be set
for States and Regions on the basis of either returning
the violator to compliance or taking a formal enforcement
action which will lead to expeditious physical (full)
compliance. Reporting of progress against significant
violations will be set on the basis of these same two
categories o~2 response. In developing its guidance, each
program should specify the types of enforcement actions
which qualify as having taken "a formal enforcement action."
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26
';- tj^sgections are conducted for many purposes, including
confirmation of compliance levels. Reporting on
Inspections has been a long standing practice.
Regions and States should be asked to provide specific
quarterly commitments and reporting on the number of
inspections to be conducted. Where programs have'
oroken down inspection reporting into different
classes to reflect the different purposes, for example,
sampJing inspections, "walk-through,* or records
check inspections, this reporting is expected to
Continue. Eac-~, piogram, as it draws up its guidance,
should be as clear and specific as possible in defining
tht: different- .-^tegor ;.es of inspection activity to
bt- .reported,
1 •/otma.i administrative enforcement _act.io_n_s will be
reported as the critical i.ndicator of the level of
Kirm ,• (s trat i ve enforcement -activity oeing carried on
>y environmental enforcement agencies. It is not
•ji.:: intention f.o provide a comprehensive reporting
ol all actions, both informal and formal, being
-akei, to secure Compliance. At the same time, it is
cecoyniisted that, there are many different informal
Techniques used which succeed in getting sources to
tM'.urn t:o compliance. What is sought here is a
i'CiJ ing indicator which will keep reporting as clear
rut and unburdensome as possible.
in preparing its guidance each program should list
the specific actions to be included under this reporting
area. Each program should be guided oy the characteristics
of a formal administrative action set forth in Section
a on "Timely ana Appropriate Enforcement Action,*
For programs without formal administrative authority,
such as Drinking Watec, other surrogate measures
should be defined.
e. j udi c i a1 Actions is an area where there has been a
long standing practice of federal reporting with no
corresponding State data. Commensurate with current
reporting practices within EPA, the number of State
civil referrals and filed cases will now be reported.
We will also now include criminal judicial actions.
These should be reported as a separate class and be
counted only after they are filed in court in recognition
of their sensitive nature.
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27
3, Recordkeepina _for Performance Measurement
There are two performance areas for which States and
Regions will be asked to retain accessible records and
summary data; (1) timeliness and appropriateness of response
to violations; and (2) penalties. These categories of
information will be considered for future development as
measures for possible inclusion in the Agency's management
and reporting systems.
a. Timeliness and appropriateness of state and federal
response to violations is the principal subject of
new guidance being developed by each program. Each
program will report to the Steering Committee on
how it will evaluate performance in this area during
this developmental year including a listing of the
information and its source(s) it will rely on to
assess timeliness and appropriateness of actions on
an ongoing basis. At the end of a year's experience
with implementing these oversight agreements, and
in preparing for the FY 1986 operating year, each
program will conduct a review to determine whether
there are measures which might be useful for management
purposes. At that time, each program should consider
developing a measure for routine reporting, if
appropriate,
k« Penalty programs are essential to the effective working
of an environmental enforcement program. Records
need to be kept of the number and amount of penalties
issued by state and federal program offices regularly
assessing penalties both those assessed and collected.
These records and summary data should be available
for review at the time of annual program audits
and, in the event of information requests by external
groups, on the extent of penalties assessed at any
point in time. Each program office in preparing
its guidance should specifically address the need
for recordkeeping on penalties.
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4 • R_g£Q_r 11no C_g_nsj.de r at_ions
There are two areas for special consideration by the
programs as they put together their guidance on reporting
requirements:
a. Quality Assurance and quality control of reported
aata is essential asthese are thecritical indicators
of program performance which will be used in
making program management decisions of priority,
resource levels, and direction. This information
must be as reliable as possible. Quality assurance
and quality control o£ data encompases three types
of: activities including: (I) setting up initial reporting
procedures; (2) building in information review and
confirmation loops; and (3) conducting routine
audits and reviews of reports and reporting systems.
Each program in preparing its guidance should describe
;;h<3 safeguards it uses in its reporting, review and
confirmation procedures, and describe the audit
protocols it will use to ensure the reliability of
enforcement and compliance data.
b. The frequency of reporting in"order to be most useful
for management purposes, at a minimum, should be done
jn a quarterly basis -- ror some programs monthly
reporting may be necessary on an interim basis due
either to their newness or their importance. This
reporting frequency is designed for oversight purposes.
It is not designed to provide for "real time" infor-
mation, that is, instant access to information on
the status of a case. However, it .3 anticipated
that formal reporting will be supplemented with
more frequent informal communications between the
Regions and States on the progress of key cases of
concern.
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Apr
1
A SUMMARY INDEX OF NATIONAL PROGRAM GUIDANCE APPWvABLE TO STATE/FEDERAL EMFORCENEHT "AGREEMENTS'
A. State/Federal Entorceaent "Agreements*) Forre, Scope and Substance
JntroductToni Regions and States are "not expected to duplicate national pro«jra» guidance! "WrTFten
Tagr(.-e»ents resulting from discussions between Regions and States should cover topics not clearly
specified elsevhero. It not otherwise specified, the Agency-wide Policy Franework will apply. Thin
Framework should be used for establishing the tenor in working with the States and for filling in
identified q»(J« in the national program guidance. The farm ot the agreement is up to the Regions unless
specified by nation*! program guidance. The Regions shoyld decide if there will be a Region-wide
* agreement" or whether ««ch Division will separately develop the "ikt ions ;
X
X
X
X
X
'ft ir-
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Introduction; Regions should »ate *ure thatStates have6opi«s of propnn oversi*jht~criteria areTJ
ns>a«i!res on the "tioelv and acunmri;»if»* rW ini»in««: .»™i '
measures rw!Lnq
continuing
S» Tiueiy -and
aj3p«x|>riate
response
4, Aocurate
r*oorxt<;c^i(.liino? J OsMnity
•4- RCSA I ttptrfl^f ;t.™
alien Plan
',i, HCSA, Enlorctasent
i ReBoanse Guidance
1
1
4
i
2
I
1
i
1
I
H2
2
1
2 PI unary fc-gs
»Wk
J
1
2
1
J
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jet iorir''"ito9ion»" have »>»Um tle»I6tllty"to"tash'ion"aTrange
ex. ..-ivc to a constructive relationship. Regions slwuld follow pi^^.i
lining the Agency-Hide Policy Fraaewot*. to fill 9aps_where_appropriate.
U« Statesi that are n«t ~~
specific gyidanee, where available
WATER-woes
WHPWS
AIR
now
FIFSA
Priiftary
Documents:
1. Approach fc
Process
2 . Cons«juenoe6
ot Oversigtit
New Guidance
New Guidance
Nai Guidance*
Hew Guuisfwe*
Air Audit
System*
•
FCRA Inplartn-
tation Plan
National*
Criteria for
arc) Enforcement
Grant
Guidance
Grant
Guidance
Policy Fcaefwt.itt Also
D. Cc_i_teria_jor Ptrect_Fedeyal Enforogaent in Delegated_States
Introduction; In negotiationB^iifltii'the States, the fcgions nust clearly define eireyfliBtanoes under
wtiicii EPA Bay take direct *n£oeoenent action. In general, Oie A<|crtcy-«ide Policy Frama*ork slvxiid be
yeed to identify the factors to be oortsidered. The program guidance should be tollowed tor detenunlng
when to take direct federal enforcement action basetl on Jack o( "twely and af)pira|jriate* action,
including what classes of violations nerit penalties. Ttw; Regions should disooss wittt the Statea how
to take these action* in way* that are supportive of » State action using the Agency-wide Policy
as a guide. _ - --.„ - ..
WVTFB
EW-WS
AIR
ECBA
RFRA
priltary
DOGUHBfltB!
1. Factors foe
Consideration
ol Direct Action
(excluding "tu.jly
and" approof'ate*
and penalties)
1. f wely w«i
A{fxiopriate
Factoe
3. Penalties
FactorB on where
«tf>E
-------
Introduction: Regions should develop ayreeaeirifca with the States oaeedf on ~a'policy of ~"nD swrpris^i", I
To generak. Regions sihciuld uae tlw Agency-wide Policy Pr^oMocli foe deuttlopiung this prxrticr; of the !
by pipCKjca«»-specif ic guidance where provided (see be lew). _ _ |
AIR
Priory
DoowentBt
1. Advance
Notification
2. Conaultatiwe
Process!
Inspections
Enforcement
Action«
3. Dispute
Resolution
4. Prtaa Rel«A8ea
5, Publicly
Reported
Performance
Dat»
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fc'fV
SIGNIFICANT SON COM PL I ANCE ACTION
(SNAP)
MEMORANDUM OF UNDERSTANDING
PURPOSE: To provide for EPA oversight of State enforcement .-
activities and to establish a basis for coordinated
action in instances requested by States.
SCOPE: Together with SP.MS and OWOGAS one of the basic
mechanisms for compliance overview will be the
CNCR furnished by the State in accordance with Tecer=l
'f' r i 11 e - p o i i c y c L. '. - s. r, c e f r or E ? A
e£.~A Pecicnal staff w-i 1 1 review t'.e State ONCP
!5'
°Six weeks prior to the meeting, EPA will formal 1y
concern, on _t_he State's previous QNCR. Included
should be permittee in question, State Action
in question, recommended actions to be taken
by State and/or EPA.
0 Three weeks prior to the meeting, the State will
furnish a response to EPA's list of concerns,
which will include State action to procure permittee
compliance. In addition, the State will submit
completed State strategies for returning other
non-complying permittees (designated as required
by the National Municipal Policy Guidance) to
c ompli a nee.
0 Two weeks prior to the meeting, the State and EPA
lead individuals will ac.ree ucon the lj_st of
permittees to be djscussed. Tnis list will include
those permittees from the preceding step which EPA
wishes to discuss further or which the State wishes
to seek Federal intervention c-n.
A;enca will be
the State lead
t c meeting.
: jj a r e d by E ?.-. a ?. d forwarded t
individual at least one week pr
± •• - c '' f i c 6Ct:c" i.rercec = t ;.": ^ a i * : - z S'j^sts:"-;
5 - r a t e c '•«' e 1 e T-' e '". t = s ^ c h a s T e : ~. ~ : c = I Assistance,
~ * \j ^_.-^*- -j^^*^^ ^^,^,c*-i-|.-^*-^--^ ^-i^»- s-^^ion sr~
^ a v ij r = • ^ c C - - •, . / 1^O..S->1-'^^-- j>= , > ci^-J-J1' - • -
-*•"*" '"^^e^&^t* E™:*oi~ce'^e^"it i"'r_^c^s t^.t? fcull
-------
or 3 "• e r~ i t t.~ ? ' <= r. .^r ~~'— ~>.
i a nee at
the meeting shala not ; - itself be viewed nor
be reported as a", action to cajse compliance.
The meeting inust result in a conclusive under-
standing by each of the parties of actions t. n a t
v^_i \_1 be taken by a set date to cause compliance
o7penalize the recalcitrant permittee,
\Al_l_ major permittees in significant noncompl i ance
wjll be made subject of the state compliance strategy/
cracking system prior to the meeting*
Accordingly, preliminary reetines must take
place within the State to define, clearly
snd concisely, tne State strategies to
-i c c r-. p 1 i s h o~ i'" - t 11 e c c - ~ 1 : a n c e . These
ll - e i e 1 : ~. £ = t e •: c -. 2 facility
cor^rol sheet for ear.-, r~a;cr oer~;ttee in
significant n D r. c ~, ~ p i i a r. c e , These sheets
« : 1 1 s e £ o '•»• a r d e "i t c £ ? » as described above.
---- Ample time m-jst be allottee to the meeting
for a full, constructive discussion and
disposition of All agenda items.
---- - Compliance strategies raay be adjusted as a result
of the meeting. This will require State consul-
tation with its field offices. In such cases,
amended facility centre', sheets will be forwarded
to EPA.
°«11 parties must keep in -ir.d their common goal of
causing permittees to promptly achieve sustained
cc-pliance. This goal must be kept first and
foremost rturirrg meetings. Despite this, i_t may
in sone instances, be impos_s_i ~: le for E?A_to agree
with t h e __S t a t e on actions it :s taking to accomplish
this goal, I n_ t h e_s e cases, extended debate should
be avoids c_._ _ Whe re ag"Ye e n e n t " fTrTrTot ET5 STrrrrev^ ,
a clear definition of intended actions by each
party should be made and agenda items continued
with.
0 Whe re significant* difference of opinion is apparent,
opposing viewpoints should be - = d e available to the
S t ?. t e 3 n d ' t P A W a t e r D i v i s i o " directors i rr
• s t e 1 y
-------
3 n c n e
that t i
four y.
made a
s
E r 11c i p a n t s a 11 e n d e sen of t n e
ings as CO.T. i t~e n t s will oe
^ A1 on g w i t h t r e 0 N C R , t h e
s will cc~prise the basis for the c v e r s i c h *•
noted
r 1 v ,T, e e t i n:
the if' e e t i n.
meetin^,
of State compliance activities. Other participants
may be called upon to attend as determined by the
State and EPA lead individuals, based upon needs
specific to the meeting (technical expertise,
construction grants, etc.) Legal staff of each
agency may participate; this will be determined
for eacn -»et:n- at the t i r-e t be aoenda is agreed
s " : p „- late,"" S t
,-i V " ^ - - c '. -
- e s - D~: = s i c -, f a ~ e
s - - - c -• - 1 - , - . ^ ,, _
11 be pro v i d e d Dy the State within t we we e k s after
tne meeting to the EPA lead individual. Unless the
State far-ally receives detailed co-ments within
one week thereafter, they shall be considered fully
reed
F.A
inutes must delineate State and/or
EPA actions expectant (this c:uld include independent
EPA action such es the issuance of either NOVs or
AOs 1 . They pay reference surr^ittals prior to the
nee tine fcr the sake of breviiv.
rector
.ate Water
D i r e r t o r
Wa t c- r V s n a r e r e n t D; v i s i o n
U.S. £nv i ronr-e nt 2! Prctectio1
i "™ js r* ii~* ' ," n- .±1 ••"• i "^ •"•, 5 i "^'J"""'v'~i£!i.
-------
GE.NLRAL COUNSEL OPINION
JULY 10, 1973
Ability of States to Enforce Federally Issued NPDES Permits
Federal V.'a;er Pollution Control ACL — Ability of SLH« to enforce
Federally issued NPDES permits — The only means available under ihe
Act by which Sute could enforce an NPDES permii u a citizen luit
under Section S05 ("person a.1 denned in Section 502(5) includes any
State) — Stale law may be used by Suie to enforce NPDES permits,
either by issuing State permiu identical to previously iwucd Fcdenl
NPDES permiu, or b\ Suie statute which incorporates provisions of the
FWPCA by reference.
QUESTION
Is & Stale authorized to enforce permits issued under the NPDES by
EPA?
ANSWER
The only means available under ihe FWPCA for a Stale to enforce the
terms and conditions of a federally issued NPDES permit would be to
commence a citizen suii under section 505. However, depending upon Sute
constitutional and other restraints, a State may arrange for such permits to
be enforceable under its own law, or it may issue duplicate permits under
State law which would then be enforceable in State courti.
DISCUSSION
Only two means are available under the FWPCA for enforcement of
NPDES permits: direct enforcement by the Administrator under section
309, and citizen suits under section 505. Section 309 is available only to the
Administrator of the Environmental Protection Agency. No authority is
conferred by §309 upon the Slates. However, §505 authorizes any "citizen"
to commence a civil action on his own behalf against any person who is
alleged to be in violation of an effluent standard or limitation under the Act
or an order issued by the Administrator or 3 State with respect to such
standard or limitation. The term "citizen" is denned in §5Q5(g) as "a person
or persons having an interest which is or may be adversely affected."
"Person" is defined in §502(5) to include any State. It is clear, moreover,
that any effluent standard or limitation included in an NPDES permit would
be "an effluent standard or limitation under this Act" within the maning of
§505(a)(l )(A). Accordingly, citizen suits would be available to States for
enforcement purposes.
Other options are available to States under State law for the enforcement
of NPDES permits/If a State has a permit system, it can issue z permit to a
discharger containing the same terms and conditions as an NPDES permit.
Again, this procedure may prove cumbersome, in thai State perrnr. issuance
167 WATER POLLUTION
-------
GENERAL COUNSEL OPINION DATED JULY 10, 1973
procedures would duplicate NPDES permit issuance procedures, A right to a
hearing and 10 administrative and judicial review might be available to the
discharger both under State and Federal law. This inconvenience might be
reduced somewhat, however, if the Slate and EPA hold joint hearings for
issuance of their respective permits.
Finally, a Siaie might choose to enact a statute incorporating the provj.
sions of the FWPCA by reference. A precedent in Federal statutory law is
the Assimilative Crimes Act, 18 U.S.C. Section 13, which incorporates State
criminal law for areas subject to exclusive Federal legislative jurisdiction. In
this context, such a statute might provide that the violation of any term or
condition of a permit issued by the Environmental Protection Agency under
§402 of the FWPCA would be subject, under State law, depending upon
whether it componad with other State statutory and constitutional require-
ments concerning due process and administrative procedure.
It should be emphasised that neither the model Sute NPDES statute
developed by the Council of State Governments nor the laws of California., at
present the only State to have received approval for its NPDES program,
include authority for the Sute to enforce federally issued permits. Such
authority is not required by EPA's State program guidelines, nor is it
required by the FWPCA. Moreover, it would be unwise to amend the
guidelines to require such authority at this point, since one program has been
approved, several others have been submitted, and many State legislatures
are enacting statutes not including such authority in reliance upon our
guidelines and upon the model Sute law.
We may wish to consider amending the State program guidelines to
authorize, but not require, a State to utilize abbreviated procedures when
issuing a State permit identical 10 a previously-issued Federal NPDES
permit. Such a procedure would allow States which have not yet enacted
NPDES statutes to establish procedures simplifying enforcement of NPDES
permits issued by EPA prior to program approval. At the same time, since
the procedure would be optional, there would be no eftee: on programs
already approved.
Before any such move is concluded upon, however, we should seriously
consider its implications in the light of Buckeye Po^er v. EPA, when the
Court of Appeals for the Sixth Circuit observed, at note 2, that where the
requirements of State implementation plans under the Clean Aar Act would
be enforceable either in State or Federal Courts, the first court to acquire
jurisdiction would have exclusive jurisdiction, tnd tL5 judgments would be res
jvdicaia with respect to any future litigation. By implication Siate coum
couid make binding determination with respect to federally issued NPDES
permits. Since we will attempt to accord priority in permit issuance tc major
dischargers, we might well look askance at a policy which could ultimately
-wrest from the Federaj courts the power to construe these crucial permits
and their conditions.
WATER POLLUTION 168
-------
&*>. -.
T.--ES
UNITED
N
^;_ PnG7£C~;C
-------
reviewing quarterly progress in several Regions was
that neither State referrals of violations to State
Attorneys General nor EPA issuance of notices of
violation were commensurate with the levels of
violations indicated in Quarterly Nor.ccnpliance Reports
by KrDES States in those Regions. Encouragement of a
stronger role by state Attorneys General in those
Stages and increased use of notices of violation
where appropriate enforcement is not forthcoming in
a timely manner should improve this situation.
Discussing the enforcement of the 1977 deadline with
State officials presents an opportunity for raising
and resolving these more general problems in those
NPDSS States where they exist, as well as for pursuing
effective Federal/State partnerships to optimize the
environmental benefits.attained for the limited enforce-
ment resources available.
/U-
Stanley w. Legro
-------
S-698
41:2991
ENVIRONMENTAL PROTECTION AGENCY CIVIL PENALTY POLICY
(February 16, 1984)
(Editor's nott: See also Civil Penalty
Pojicy published at 41.1101.]
MEMORANDUM
SUBJECT: New Civil Penally Policy
FROM: Courtney M. Price
Assistant Administrator for
Enforcement and Compli-
ance Monitoring
TO: Associate Administrators
Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Staff Office Directors
Attached is the Agency's new civil pen-
alty policy. This new penalty policy will
establish a consilient Agency-wide ap-
proach to the assessment of civil penalties
while allowing substantial flexibility for
individual cases within certain guidelines.
It is designed to promote the goals of
deterrence, fair and equiiablc treatment of
the regulated community and swift resolu-
tion of environmental problems. No at-
tempt is made to address issues specific 10
each statute the Agency administers. In-
stead, this will be left to guidance devel-
oped by each program.
The policy consists of two documents.
Policy on Civil Penalties and A Frame-
•work for Statute-Specific Approaches 10
Penalty Assessments. The first document
focuses on the general philosophy behind
the penalty policy, The Framework pro-
vides guidance to each program on how to
develop medium-specific penalty policies.
The new penalty policy will not be truly
effective until the medium-specific penally
policies are completed. Thus it is impor-
tant that work begin on the medium-spe-
cific policies as soon as possible. I am
therefore requesting that each program
office meet with their counterparts in
OECM and develop workplans for the
development of those policies. Please sub-
mil those workplans to me by March 31,
1984. The Deputy Administrator his re-
quested that we add the workpliru to the
Action Tracking System as we receive
them. If you have any questions regarding
this memorandum or the new civil penalty
policy, please contact Jonathan Libber of
the Office of Legal and Enforcement Poli-
cy He may be reached a! 426-7503.
Attachment
cc: Enforcement Policy Workgroup
Members Associate Enforcement
Counsels OECM Office Directors
POLICY ON CFVIL PENALTIES
Introduction
This document. Policy on Civil Penal-
tigs, establishes a single set of goals for
penalty assessment in EPA administrative
and judicial enforcement actions. These
goals — deterrence, fair and equitable
treatment of the regulated community.
and swift resolution of environmental
problems — are presented here in general
terms. An outline of the general process
for the assessment of penalties is con-
tained in Attachment A.
A companion document, A Framework
for Siatuit-Specific Approaches so Penal-
ty Assessments, will also be issued today
This document provides guidance to the
user of the policy on how to write penalt;-
assessment guidance specific to the user's
particular program. The first part of the
Framework provides general guidance on
developing program-specific guidance; the
second part contains a detailed appendix
which explains the basis for thai guidance.
Thus, the user need only refer lo ihe
appendix when he wants an explanation of
the guidance in the first part of the
Framework.
In order to achieve the above Agency
policy goals, all administratively imposed
penalties and settlements of civil penalty
actions should, where possible, be consist-
ent with the guidance contained in the
Framework document. Deviations from
the Framework's methodology, where
merited, are authorized as long u the
reasons for the deviations are documented.
Documentation for deviations from the
Framework in program-specific guidance
should be located in that guidance. Docu-
mentation for deviations from the pro-
gram-specific guidance in calculating indi-
vidual penalties should be contained in
both the case files and in any memoranda
that accompany the seitlemenis.
The Agency will make every effort to
urge administrative law judges to impose
penalties consistent with this policy and
any medium-specific implementing guid-
ance. For cases thai §o lo court, I he Agen-
cy will request the statutory maximum
penalty in the filed complaint. And, as
proceedings warrant, EPA will continue to
pursue a penalty no less thin thai support-
ed by the applicable program policy. Of
course, all penalties must be consistent
with applicable statutory provisions, based
upon the number and duration of the vio-
lations at issue.
Applicability
This policy statement does not attempt
to address the specific mechanism* for
6-1-84
By THE BUREAU OF NATIONAL AFFAIRS INC., Wasniigton, D.C. 20037
15
-------
41:2992
FEDERAL!
achieving the goals set out for penally
assessment. Nor does it prescribe a negoti-
ation strategy to achieve (he penalty tar*
get figures. Similarly, it does noi address
differences between statutes or between
priorities of different programs. Accord-
ingly, it cannot be used, by itself, as a
basis for determining an appropriate pen-
alty in a specific action. Each EPA pro-
gram office, in a joint effort with the
Office of Enforcement and Compliance
Monitoring, will revise existing policies, or
write new policies as needed. These poli-
cies will guide the aueument of penalties
under each statin* in a manner consistent
with tbis document and, to the extent
reasonable. the accompanying
Framework.
Until new program-iDecific policies are
issued, the current penalty policies will
remain in effect. Once new program-spe-
cific policies are issued, the Agency should
calculate penalties as follows:
• For cues that are substantially set-
tied, apply the oM policy.
• For cases that will require further sub-
stantial negotiation, apply the new policy
if that will not be loo disruptive.
Because of the unique issues associated
with civil penalties in certain types of
cases, this policy does not apply to the
following areas:
• CERCLA $107. This is an area in
which Congress has directed a particular
kind of response explicitly oriented toward
recovering the cost of Government cleanup
activity and natural resource damage.
• Clean Water Act $311(0 >nd (g).
This also is cost recovery in nature. As in
CERCLA §107 actions, the penalty as-
sessment approach is inappropriate.
• Clean Air Act $ 120. Congress has set
out in considerable detail the level of re-
covery under this section. It has been im-
plemented with regulations which, as re-
quired by law. prescribe a non-exclusive
remedy which focuses on recovery of the
economic benefit of noncompliance. It
should be noted, however, that this general
penalty policy builds upon, and is consist-
ent with the approach Congress took in
that section.
• Much of the rationale supporting this
policy generally applies to non-profit insti-
tutions, including government entities. In
applying this policy to such entities, EPA
must ;\ercise judgment case-by-case in
deciding. Tor example, how to apply the
economic benefit and ability to pay sanc-
tions, if at all. Further guidance on the
issue of seeking penalties against non-prof-
it entities will be forthcoming.
Deterrence
The first goal of penally assessment is
to deter people from violating the law.
Specifically, the penalty should persuade
the violator to take precautions against
falling into noncompliance again (specific
deterrence) and dissuade others from vio-
lating the law (general deterrence). Suc-
cessful deterrence is important because it
provides the best protection for the envi-
ronment. In addition, it reduces the re-
sources necessary to administer the laws
by addressing noncompliance before it
occurs.
If a penalty is to achieve deterrence,
both the violator and the general public
must be convinced that the penalty places
the violator in a worse position than those
who have complied in a timely fashion.
Neither the violator nor the general public
is likely to believe this if the violator is
able to retain an overall advantage from
noncompliance. Moreover, allowing a vio-
lator to benefit from noncompliance pun-
ishes those who have complied by placing
them at a competitive disadvantage. Tbis
creates a disincentive for compliance. For
these reasons, it is Agency policy that
penalties generally should, at a minimum,
remove any significant economic benefits
resulting from failure to comply with the
law. This amount will be referred to as the
"benefit component" of the penalty.
Where the penalty fails to remove the
significant economic benefit, as defined by
the program-specific guidance, the case
development team must explain in the
case file why it fails to do so. The case
development team must then include this
explanation in the memorandum accompa-
nying each settlement for the signature of
the Assistant Administrator of Enforce-
ment and Compliance Monitoring, or the
appropriate Regional official.
The removal of the economic benefit of
noncompliance only places the violator in
the same position as he would have been if
compliance had been achieved on time.
Both deterrence and fundamental fairness
require that the penally include an ,
lional amount to ensure that ihevioltn
economically worse off than if
obeyed the law. This additional an
should reflect the seriousness of ihe \
lion. In doing so, the penally will'
ceived as fair. In addition ihe
size will lend 10 deier other
violators.
In some classes of cases, the
gravity calculation may be iiwuffu
effect general deterrence. This could I
pen if. for example, there was
noncompliance with certain
programs in specific areas of the
States. This would demonstrate tl
normal penalty assessments had not I
achieving general deterrence. In
cases, the case development team :
consider increasing the gravity comp
sufficient to achieve general
These extra assessments should
the other goals of this policy, i
equitable treatment of the
community.
This approach is consistent with
civil penalty provisions in the envir
tal laws. Almost all of them require i
sideration of the seriousness of the '
tion. This additional amount
reflects the seriousness of the
referred to as the "gravity
The combination of the benefit:
ity components yields the "preliminary 4
terrence figure."
As explained later in this policy,
case development team will adjust
figure as appropriate. Nevertheless,
typically should seek to recover, i
mum. a penalty which includes thrt
component plus some non-trivial
component. This is important because i
erwise, regulated parties would hmj
general economic incentive to delay <
pliance until the Agency commenced i
enforcement action. Once the
brought the action, the violator could I
settle for a penally less than their <
ic benefit of noncompliance. This in
would directly undermine the goal
dc lerrence.
Fnir and Equitable Treatment of tht 1
'laled Community
The second goal of penalty ___
is ihe fair and equitable treatment of I
-------
EPA 1984 CIVIL PENALTY POLICY
S-6M
41:2993 *|if
regulated community. Fair and equitable
treatment requires that the Agency's pen-
alties must display both consistency and
flexibility The consistent application of a
penally policy is important because other-
wise the resulting penalties might be seen
as being arbitrarily assessed. Thus viola-
tors would be more inclined to litigate over
those penalties. This would consume
Agency resources and make swift resolu-
tion of environmental problems less likely.
But any system for calculating penalties
must have enough flexibility to make ad-
justments to reflect legitimate differences
between similar violations. Otherwise the
policy might be viewed as unfair. Again.
the result would be to undermine the goals
of the Agency to achieve swift and equita-
ble resolutions of environmental problems.
Methods for quantifying the benefit and
'gravity components are explained in the
: Framework guidance. These methods sig-
" nificamly further the goal of equitable
treatment of violators. To begin with, the
, benefit component promotes equity by re-
moving the unfair economic advantage
which a violator may have gained over
complying parties. Furthermore, because
j the benefit and gravity components are
i generated systematically, they will exhibit
relative consistency from case to case. Be-
cause the methodologies account for a
wide range of relevant factors, the penal-
ties generated will be responsive to legiti-
mate differences between cases.
However, not alt the possibly relevant
differences between cases are accounted
for in generating the preliminary deter-
rence amount. Accordingly, all prelimi-
jairy deterrence amounts should be in-
Ceased or mitigated for the following
factors to account for differences between
cues:
t • Degree of willfulness and/or
pwgligence.
t • History of noncompliance.
. •Ability to pay.
t (Degree of cooperation/noncooperation.
• Other unique factors specific to the
Violator or the case.
Mitigation based on these factors is ap-
propriate to the extent the violator clearly
demonstrates that it is entitled to
mitigation.
The preliminary deterrance amount ad-
iusied prior to the start of settlement nego-
tiations yields the "initial penalty target
figure". In administrative actions, the fig-
ure generally is the penalty assessed in the
complaint. In judicial actions, EPA will
use this figure as the first settlement goal.
This settlement goal is an internal target
and should not be revealed to the violator
unless the case development team feels
that it is appropriate. The initial penalty
target may be further adjusted as negotia-
tions proceed and additional information
becomes available or as the original infor-
mation is reassessed.
Swift Resolution of Environmental
Problem
The third goal of penalty assessment is
swift resolution of environmental prob-
lems The Agency's primary mission is to
protect the environment. As long as an
environmental violation continues, pre-
cious natural resources, and possibly pub-
lic health, are at risk. For this reason,
swift correction of identified environmen-
tal problems must be an important goaJ of
any enforcement action, tn addition, swift
compliance conserves Agency personnel
and resources.
The Agency will pursue two basic ap-
proaches to promoting quick set dements
which include swift resolution of environ-
mental problems without undermining de-
terrence. Those two approaches are as
follows;
I. Provide incentives to settle and insti-
tute prompt remedial action.
EPA policy will be to provide specific
incentives to settle, including the
following:
• The Agency will consider reducing the
gravity component of the penalty for set-
tlements in which the violator already has
instituted expeditious remedies to the
identified violations prior to the com-
mencement of litigation ' This would be
considered in the adjustment factor called
degree of cooperation/noncooperation dis-
cussed above.
' For the purposes of this document, litijai.un
is deemed 10 begin:
• for administrative actions — when the r;-
ipondcnl Ales a response to in administrate
complaint or when the lime 10 file expires or
• for judicial actions — when an Assisum
United Slates Attorney files i complaint in
coun.
•The Agency will consider accepiing
addiiional environmental cleanup, and "-
mitigating the penalty figures accordingly.
But normally, the Agency will only accept
this arrangement if agreed to in pre-litiga-
tion settlement.
Other incentives can be used, as long as
they do not result in allowing the violator
to retain a significant economic benefit.
2. Provide disincentive! to delaying
compliance.
The preliminary deterrence amount is
based in pan upon the expected duration
of the violation. If that projected period of
time is extended during the course of set-
tlement negotiations due to toe defend-
ant's actions, the case development team
should adjust that figure upward. The
case development team should consider
making this fact known to the violator
early in the negotiation process. This wilt
provide a strong disincentive to delay
compliance.
Inttstt of Policy sod laformatio* B*QMIU
for Penalty Calottatiom
The policies and procedures set out in
this document and in the Fremtwk for
Statute-Specific Approaches to Penalty
Assessment are intended solely for the
guidance of government personnel. They
are not intended and cannot be relied upon
to create any rights, substantive or proce-
dural, enforceable by any party in litiga-
tion with the United States. The Agency
reserves the right to act at variance with
these policies and procedures and to
change them at any time without public
notice. In addition, any penalty calcula-
tions under this policy made in anticipa-
tion of litigation are exempt from disclo-
sure under the Freedom of Information
Act. Nevertheless as a matter of public
interest, the Agency may elect to release
this information in some <
Courtney M. Price
Assistant Administra-
tor for Enforcement
and Compliance
Monitoring
Attachment
[*->-**
PuBtuhad By THE BUREAU OF NATIONAL AFFAIRS INC.. Washington, D.C. 20037
-------
41:2594
FEDERAL LAWS
ATTACHMENT A
Oullin* of Chil Penally Assessment
1- Calculate Preliminary Deitrrtnct
Amount
A- Economic benefit component and
B. Gravity component
(This ywlds the preliminary deterrence
arnounl.)
II. Apply Adjustment Factors
A. Degree of cooperation/noncoopera-
iion (indicated through pre-settlement
Action.)
B. Degree of willfulness and/or
negligence.
C. Hwtory of noneoinplianes.
D- Ability to pay (optional as this
stags.)
E, Other unique factor* (including
strength of caw, competing public policy
concerns.)
(This yields the initial penalty target
figure.)
III. Adjustments to Initial Penalty Target
Figure Afief Negotiations Haw Begun
A, Ability to pay (to the extent not
considered in calculating initial penalty
target.)
B. Reassess adjustment* ysed in calcu-
lating rnitial penalty target, (Agency may
want to reexamine evidence used as a
basis for the penalty in the light of new
information,}
C. Reassess preliminary deterrence
amount 10 reflect continued periods of
noncompliance not reflected in the origi-
nal calculation.
D. Alternative payments agreed upon
prior to the commencement of litigaiion.
(This yields the adjusted penalty target
figure.)
A FRAMEWORK FOR STATUTE-
SPECIFIC APPROACHES
TO PENALTY ASSESSMENTS:
IMPLEMENTING EPA'S POLICY ON
CIVIL PENALTIES
CONTENTS
introduction
Writing a Program-Specific Policy
I, Developing a Penalty Figure
II. Calculating a Preliminary Deter-
re nee Amount
II!. Adjusting the Preliminary Deter-
rence Amount to Derive the Initial Penal-
t> Target Figure
IV, Adjusting the Initial Penally Target
Figure During Negotiations
Use of the Policy in Litigation
Use of the Policy as a Feedback Device
Appendix
Introduction
The Preliminary Deterrence Amount
I. The Benefit Component
A. Benefit from delayed costs
B. Benefit from avoided COSES
C. Benefit from competitive advantage
D, Settling a case for an amount less
than the economic benefit component
II. The Gravity Component
A- Quantifying the gravity of a violation
B. Gravity factors
Initial and Adjusted Penalty Target
Figure
I. Flexibility-Adjustment Factors
A. Degree of willfulness and/or
negligence
B, Degree of cooperation/noneoopera-
tion
C. History of noncompliance
D, Ability to pay
E. Other unique factors
II. Alternative Paymenu
III. Promoting Consistency
Use of Penalty Figure in Settlement
Negotiations
introduction
This document, A Framrwork for Stat*
ute^Specific Approaches to Penalty A}~
itismcnt, provides guidance Ks the uier of
the Policy on Civil Penalties on ho* to
develop a medium-specific penalty policy.
Such policies will apply to administrative-
ly impwed penalties and settlement* of
both administrative »nd judicial penalty
actions.
In the Policy on Civil Penalties, the
Environmental Protection Agency estab-
lishes a single set of goals for penalty-
assessment. Those goals — deterrence,
fair and equitable treatment of the regu-
lated community, and swift resolution of
environmental problems — will be sub-
stantially impaired unless they are pur-
sued in a consistent fashion. Even differ-
ent terminology could cause confusion
that would detract from the achievement
of these goals- At the same time, too much
rigidity will stifle negotiation and make
settlement impossible.
The purpose of this document is to pro-
mote the goals of the Policy on Civil
Penalties by providing a framework for
medium-specific penalty policies. The
Framework is detailed enough to allow
individual programs to develop policiw
that will consistently further the Agency's
goals and be easy to administer. In addi-
tion, it is general enough to allow each
program to tailor the policy to the relevant
statutory provisions and the particular
priorities of each program.
While this document contains detailed
guidance, it is not cast in absolute terms.
Nevertheless, the policy (Joes not encour-
age deviation from this guidance in either
the development of medium-specific poli-
cies or in developing actual penalty fig-
ures. Where there are deviations in devel-
oping medium-specific policies, the
reasons for those changes must be record-
ed in the actual policy. Where there art
deviations from medium-specific policies
in calculating a penalty figure, the ctse
development team must detail the reasons
for those changes in the case file. In addi.
lion, the rationale behind the deviations
must be incorporated in the memorandum
accompanying the settlement ptcteie te
Headquarter) or the appropriate Regional
official,
This document is divided into two sec-
tions. The first one giv« brief instruction*
to the user on how 10 write a medium-
specific policy. The second section is §n
appendix that gives detailed guidance on
implementing each section of the instruc-
tion* and explains how the instructions are
intended to further the goal* of the poiicy.
Writing • Pnnrrmm Specific Policy
Summarized below are those elements
that should be present in t program-spe-
cific penalty policy, For a detailed discus-
sion of each of these ideas, the correspond-
ing portions of the appendix should be
consulted.
I, Developing a Penalty figurw,
The development of a penalty figure is •
two step process. First the one develop-
ment team must calculate a preliminary
deterrence figure. This figure it composed
of the economic benefit component (where
applicable) and the gravity component.
The second step is to adjust the preiimi-
nar> deterrence figure through a number
of factors. The resulting penalty figure b
the initial penalty target figure In judicial
actions, the initial penalty target figure is
the penalty amount which the government
normally sets as a goal at the outset of
settlement negotiations. It is essentiality an
internal settlement goal and shouid not be
-------
41:2995
revealed to the violator unless the case
development team fceis it is appropriate
In administrative actions, this figure gen-
erally is the penalty assessed in the com-
pliint, While in judicial actions, ihe gov-
ernment'i complaint will request the
maximum penalty authorized by law.
This initial penalty target figure may be
further adjusted in the course of negotia-
tions, Each policy should ensure thai the
penally assessed or requested is within any-
applicable Statutory constraints, based
upon the number and duration of viola-
tions at issue.
11, Calculating a Preliminary Drier-
rtnce Amount.
•Each program-specific policy must con-
tain a section on calculating the prelimi-
nary deterrence figure. That section
should contain materials on each of the
following are_s:
• Benefit Component. This section
should explain:
a. the relevant measure of economic
benefit for various types of violations,
b, the information needed,
C. where 10 get assistance in computing
this figure and
d, how to use available computer sys-
tems to compare a case with similar pre-
vious violations,
• Gravity Component. This section
should first rink different types of viola-
lions according to the seriousness of the
act. In creating that ranking, the following
factors should be considered:
a. actual or possible harm,
b, importance to ihe regulatory scheme
and
c, availability of daia from other
sources.
in evaluating actual or possible harm.
your scheme should consider the following
facts;
• amount of pollutant,
• toxicity of pollutant,
• sensitivity of the environment,
• length of time of a violation and
• size of the violator.
The policy then should assign appropri-
ate dollar amounts or ranges of amounts
to the different ranked violations to consti-
tute the "gravity component." This
amount, added lo Ihe amount reflecting
economic benefit, constitutes ihe prelimi-
nary deterrence figure.
III. Adjusting ihe Preliminary Deter~
rence Amount so Derive the Initial Penal-
ty Torget Figure (Prenrgotiaiion
Each program-specific penally policy
should give detailed guidance on applying
th'e appropriate adjustments to the pre-
liminary deterrence figure. This is 10 en-
sure that penalties also further Agency-
goals besides deterrence (i.e. equity ind
swift correction of environmental prob-
lems), Those guidelines should be consist-
ent with the approach described in the
appendix- The factors may be separated
according to whether they can be consid-
ered before or after negotiation has begun
or boih.
Adjustments (increases or decreases, es
appropriate) thai can be made to the pre-
liminary deterrence penalty to develop an
initial penalty target to use at the outset of
negotiation include:
* Degree of willfulness and/or
negligence
» Cooperation/noncooperation through
presettlement action.
• History of noncompliance.
* Ability to pay.
« Other unique factors (including
strength of case, competing public policy
considerations),
The policy may permit consideration of
the violator's ability to pay as in adjust-
ment factor before negotiation! begin, It
may also postpone consideration of that
factor until after negotiation* hive begun,
This would allow the violator to produce
evidence substantiating its inability to pay.
The policy should prescribe appropriate
amounts, or ranges of amounts, by which
the preliminary deterrence penalty should
be adjusted. Adjustments will depend on
the extent to which certain factors are
pertinent. !n order to preserve the penal-
ty's deterrent effect, the policy should also
ensure that, except for the specific excep-
tions described in this document, the ad-
justed penalty will. I) always remove any
significant economic benefit of noncom-
phance and 2) contain some non-trivial
amount as a gravity component.
IV. Adjusting the Initial Penalty Tar-
get During Ntgotialions.
Each program-specific policy shot, d
call for periodic reassessment of these ad-
justments during ihe course of ncgotu-
tions. This would occur as additional rel-
evant information becomes available and
the old evidence is re-cvaluaicd in the
light of new evidence Once negotiations
have begun, the .policy also should permit
adjustment of the penalty target to reflect
"alternative payments" the violator agrees
to make in settlement of the case. Adjust-
ments for alternative payments and pre-
settlement corrective action are generally
permissible only before litigation has
begun. //
Again, the policy should be structured
to ensure that any settlement made after
negotiations have begun reflects the eco-
nomic benefit of noncompliance up to the
date of compliance plus some non-trivial
gravity component. This means that if
lengthy settlement negotiations cause the
violation 10 continue longer than initially
anticipated, the penalty target figure
should be increased. The increase would
be based upon the extent that the viola-
tions continue to produce ongoing environ-
mental risk and increasing economic
benefit,
Uw of th* Polity In LJtigmtkwi
Each program-specific policy should
contain a section on the use of the policy
in litigation- Requests for penalties should
account for all the factors identified in the
relevant statute and still illow for compro-
mises in settlement without exceeding the
parameters outlined in this document,
(For each program, ill the statutory Fac-
tors are contained in the Framework ei-
ther explicitly or as part of broader fac-
tors.) For administrative proceedings, the
policy should explain how to formulate a
penalty figure, consistent with the policy.
The case development team will put this
.figure in the administrative complaint.
In judicial actions, the EPA will use the
initial penalty target figure u its first
settlement goal. This settlement goal is an
internal target and should not be revealed
to the violator unless the case development
team feels it is appropriate. In judicial
litigation, the government should request
the maximum penally authorized by law
in its complaint. The policy should also
explain how it and any applicable prece-
dents should be used in responding to any
explicit requests from a court for a mini-
mum assessment which the Agency would
deem appropriate.
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19
-------
41:2996
FEDERAL LAWS
Use of the Policy as a F«\iback Device
Each program-specific policy should
first explain in detail wh.u information
needs to be put iriio the case file and into
ihe relevant computer irat-king system
Furthermore, each policy should cover
how to use that system to examine penalty
assessments in other cases. This would
thereby assist the Agency in making judg-
ments about the size of adjustments to the
penalty for the cue at hand. Each policy
should also explain ho* to present penally
calculations in litigation reports.
Courtney M. Price
Assistant Administra-
tor for Enforcement and
Compliance Monitoring
Attachment
APPENDIX
Introduction
This appendix contains three section*.
The first two sections let out guidelines
for achieving the goals of (he Policy on
Civil Penalties. The first section focuses
on achieving deterrence by assuring that
the penalty first removes any economic
benefit from noncompliance, Then it adds
an amount to the penalty which reflects
(he seriousness of (he violation. The sec-
ond section provides adjustment factors so
that both a fair and equitable penalty will
result and that there will be & swift resolu-
tion of the environmental problem. The
third section of the framework presents
some practical advice on the use of the
penalty figures generated by the policy.
The Preliminary Deterrence Amount
The Policy on Civil Penal lies estab-
lishes deterrence as an important goal of
penalty assessment. More specifically, it
specifies that any penalty should, at a
minimum, remove any significant benefits
resulting from noncompliance. In addition,
it should include an amount beyond re-
moval of economic benefit to reflect the
seriousness of the violation. That portion
of the penalty which removes the econom-
ic benefit of noncompliance is referred to
to as the "benefit component;" that part of
the penalty which reflects the seriousness
of the violation is referred to BS the "grav-
ity component." When combined, these
Two components yield the "preliminary de-
terrence amount."
This section of the document provides
guidelines Tor calculating the benefit com-
ponent and the gravity component. It will
also present and discuss a simplified ver-
sion of the economic bsnefit calculation
for use in developing quick penally deter-
minations. This section will also discuss
the limited circumstances which justify
settling for less than the benefit compo-
nent. The uses of the preliminary deter-
rence amount will be explained in subse-
quent portions of this document.
I. The Benefit Component.
Jn order to ensure that penalties remove
any significant economic benefit of non-
compliance, it is necessary to have reliable
methods, to calculate that benefit. The
enistence of reliable methods also
strengthens the Agency's position in both
litigation and negotiation. This section sets
out guidelines for computing the benefit
component. It first addresses costs which
are delayed by noncompliance. Then it
addresses costs which are avoided com-
pletely by noncompliance. It also identifies
issues to be considered when computing
the benefit component for those violations
where the benefit of noncompliance results
from factors other than cost savings. This
section concludes with a discussion of the
proper use of the benefit component in
developing penalty figures and in settle-
ment negotiations.
A, Bentfii from delayed costs
In many instances, the economic advan-
tage to be derived from noncompliance is
the ability to delay making the expendi-
tures necessary to achieve compliance. For
example, a facility which fails to construct
required settling ponds will eventually
have to spend the money needed to build
those ponds in order to achieve compli-
ance. But, by deferring these one-time
nonrecurring colts until EPA or a State
takes an enforcement action, that facility
has achieved an economic benefit. Among
the types of violations which result in
savings from deferred cost are the
following:
• Failure to install equipment needed to
meet discharge or emission control
standards.
» Failure to effect process changes need-
ed to eliminate pollutants from products
or waste stream*,
•Testing violations, where the testing
still must be done to demonstrate achieved
compliance.
• Improper disposal, where proper dis-
posal is still required to achieve
compliance.
* Improper storage where proper stor-
age is still required to achieve compliance.
• Failure to obtain necessary permits for
discharge, where such permits would prob-
ably be granted. (While the avoided cost
for many programs would be negligible',
there are programs where the the permit
process can t>e expensive).
The Agency has a substantial amount of
experience under the air and water pro-
grams in calculating the economic benefit
that results from delaying costs necessary
to achieve compliance. This experience in-
dicate; that it is possible to estimate the
benefit of delayed compliance through the
use of a simple formula. Specifically, the
economic benefit of delayed compliance
may be estimated it: 5% per year of the
delayed one-time capita] cost for the peri*
od from the date the violation began until
the date compliance was or is expected to
be achieved. Thii will be referred 10 as the
"rule of thumb for delayed complain**"
method. Each program may adopt its own,
"rule of thumb" if appropriate. The appli-
cable medium-jpecific guidance should
state what tbat method is,.
The rule of thumb method can usually
be used in making decisions on whether to
develop a case or in setting » penalty
urget for settlement negotiations. In tiling
ihis rule of thumb method in settlement
negotiations, the Agency may want to
make the violator fully aware that it is
using an estimate and not a more precise
penalty determination procedure. The de-
cision whether to reveal this information is
up to the negotiators.
The "rule of thumb" method only pro-
vides a first-cut estimate of ihe benefit of
delayed compliance. For this reason, its
use is probably inappropriate in situations
where a detailed analysis of the economic
effect of noncompliance is needed to sup-
port or defend the Agency's position. Ac-
cordingly, this "rule of thumb" method
generally should not be used in any of the
following circumstances:
6 A hearing is likely on the amount of
the penalty.
20
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EPA 1984 CIVIL PENALTY POLICY
41:2997
•The defendant wishes to negotiate
over the amount of the economic bench(
on the basis of factors unique to the finan-
cial condition of the company
* The case development team has reason
10 believe it will produce i substantially
inaccurate estimate, for example, where
the defendant is in & highly unusual finan-
cial position, or where noncornpliance has
or will continue for an unusually long
period.
There usually are avoided costs associ-
ated with this type of situation. Therefore.
the "rule of thumb for avoided costs"
should also be applied. For most cases,
boih figures are netded to yield the major
portion of the economic benefit
component.
When the rule of thumb method is riot
applicable, the economic benefit of de-
layed compliance should be computed us-
ing th« Methodology for Computing the
Economic Bentfit of Noneompliance. This
document, which is under development,
provides a method for computing the eco-
nomic benefit of noncompiiance based on
a detailed economic tnalysis, The method
will largely be a refined version of the
method used in the previous Civil Penally
Policy issued July 8, 1980. for the Clean
Water Act and Tills [ of the Clean Air
Act. ll will also be consistent with the
regulations implementing Section 120 of
the Clean Air Act, A computer program
will be available lo the Regions to perform
the analysis, together with instructions for
its use, Until the Methodology is issued,
the economic model contained in the July
8. 1980. Civil Penalty Policy should be
used. It should be noted ihat the Agency
recently modified this guidance to reflect
changes in the tax la*.
B. Benefit from avoided eons
Many kinds of violations enable a viola-
tor to permanently avoid certain costs as-
sociated with compliance.
» Cost savings for operation and mainte-
nance of equipment that the violator failed
to install.
• failure to properly operate and main-
tain existing control equipment,
» Failure to employ sufficient number of
adequately trained staff,
* Failure to establish or follow precau-
tionary methods required by regulations or
permits.
* Improper storage, «h:re commercial
storage is reasonably available--
» Improper disposal, where redisposil or
cleanup is not possibie.
• Process, operational, or maintenance
savings from removing pollution
equipment,
• Failure to conduct necessary testing.
As with the benefit from delayed costs,
the benefit component for avoided costs
may be estimated by another "rule of
thumb" method. Since these costs will
never be incurred, the estimate is the ex-
penses avoided until the date compliance
is achieved less any tax savings, The use of
this "rule of thumb" method is subject to
the same limitations as those discussed in
the preceding section-
Where the "rule of thumb for avoided
costs" method cannot be used, the benefit
from avoided costs must be computed us-
ing the Methodology (or Computing I he
Economic Benefit of Noncompiiance.
Again, until the Mctholology is issued, the
method contained in the July 8, 1980.
Civil Penally Policy should be used as
modified to reflect recent changes in the
tax la*.
C. Benefit from competiiivt advantage
For most violations, removing the sav.
ings which accrue from noncompliance
will usually be sufficient to remove the
competitive advantage the violator clearly
has gained from noncompiiance. But there
are some situations in which noncom-
piiance allows the violator to provide
goods or services which ar« not available
elsewhere or are more attractive to the
consumer. Examples of such violation:,
include'.
•Selling banned products,
• Selling products for banned uses.
•Selling products without required la-
belling or warnings.
• Removing or altering pollution control
equipment for a fee, (e.g., tampering with
automobile emission controls.)
• Selling products without required reg-
ulatory clearance, (e.g.. pesticide registra-
tion or premanufactute nonce under
TSCA.)
To adequately remove the economic in-
centive for such violations, ii is helpful to
estimate the nei profits made from the
improper transactions (i.e. those transac-
tions which would not have occurred if th;
party had complied). The case develop-
ment team is responsible for identifying
violations in which ihis element of eco-
nomic benefit clearly is present and sig-
nificant. This calculation may be substan-
tial!) different depending on the type o(
violation. Consequently the program-spe-
cific policies should contain guidance on
identifying these types of violations and
estimating iheie profits. In formulating
that guidance, the following principles
should be followed: tj
• The amount of the profit should be
based on the best information available
concerning the number of transactions re-
sulting from noncompiiance,
* Where available, information about
the average profit p«r transaction m»y be
used. In some cases, this may tx available
from the rulemaking record of the provi-
sion violated.
• The benefit derived should be adjusted
to reflect the present value of net profits
derived in the past.
It is recognized that the methods devel-
oped for estimating the profit from those
transactions wilt sometimes rely substan-
tially on expertise rather thgn verifiable
data- Nevertheless, the program! should
make all reasonable efforts to ensure that
the estimates developed are defensible.
The programs are encouraged to work
with the Office of Policy, Planning »nd
Evaluation to ensure that the methods
developed are consistent with the forth-
coming Methodology for Computing iht
Economic Benefit of t\'oncompliaitce and
with methods developed by other pro-
grams. The programs should also ensure
that sufficient contract funds ire available
(o obtain expert advice in this area as
needed to support penalty development,
negotiation and trial of these kinds of
cases.
D Sealing cases for an amount less
than the economic benefit
As noted above, settling for an imount
which does not remove she economic bene-
fit of noncompiiance can encourage people
to wan until EPA or the Slate begins an
enforcement action before complying. For
this reason, it is general Agency policy not
to settle for less than thtt amount. There
are three general areas where settling for
less than economic benefit may be appro-
priate. Bui in any individual case where
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-------
FEDERAL LAWS
the Agency decides to seulc lor less than
economic benefit, [he case development
team must detail those reasons in the case
fiic and in any memoranda accompanying
the settlement.
I. Benefit component involves insignifi-
cant amount,
II is clear that assessing the benefit
component and negotiating over it will
often represent a substantial commitment
of resource!. Such a commitment of re-
sources may not be warranted in cases
where the magnitude of the benefit com-
ponent is not likely to be significant, (e.g.
not likely to have a substantial impact on
the violator's competitive positioins). For
this reason, the cas« development team
has the" discretion not to seek the benefit
component where it appears that the
amount of that component u likely to be
less than $10.000 (A program may deter-
mine thai other cut-off points are more
reasonable based on the likelihood that
retaining the benefit could encourage non-
complying behavior.) In exercising that
discretion, the case development team
should consider the following factors:
* Impact on violator: The likelihood thai
assessing the benefit component as part of
the penalty will have a noticeable effect on
the violator's competitive position or over-
all profits. If no such effect appears likely,
the benefit component should probably not
be pursued.
»The size of the gravity component: If
the gravity component is relatively small,
it may not provide a sufficient deterrent,
by itself, to achieve the goals of this
policy.
• The certainty of the size of the benefit
component: If the economic benefit is
quite well defined, it is not likely to re-
quire as much effort to seek to include it
in the penalty assessment. Such circum-
stances also increase the likelihood that
the economic benefit was a substantial
motivation for the noncomphance. This
would make the inclusion of the benefit
component more necessary to achieve spe-
cific deterrence
It may be appropriate not lo seek the
benefit component in an entire class of
violation. In that situation, the rationale
behind that approach should be clearly
staled in the appropriate medium-specific
policy For example, the most appropriate
.wav IL! handle a small non-recurring oper-
ation and maintenance violation may be a
small penalty. Obviously it makes little
sense to assess in detail the economic bene-
lii for each individual violation because
(he benefit is likely to be so small. The
medium-specific policy would siale this as
the rationale.
?.. Compelling public concerns..
The Agency recognizes that there may
be some instances where there src compel-
ling public concerns that would not be
served by taking a case to trial. In such
instances, it may become necessary to con-
sider settling a case for less than the bene-
fit component. This may be done only if it
is absolutely necessary to preserve the
countervailing public interests. Such set-
tlements might be appropriate where the
following circumstances occur:
• There is a very substantial risk of
creating precedent which wj|| have a sig-
nificant adverse effect upon the Agency's
ability to enforce the law of clean up
pollution if the case is taken to trial.
• Settlement will avoid or terminate an
imminent risk to human health or the
environment. This is an adequate justifica-
tion only if mjunctive relief is unavailable
for some reason", and if settlement on re-
medial responsibilities could riot be
reached independent of any settlement of
civil penalty liability.
• Removal of the economic benefit
would result in plant closings, bankruptcy,
or other extreme financial burden, and
there is an important public interest in
allowing the firm to continue in business.
Alternative payment plans should be fully
explored before resorting to this option.
Otherwise, the Agency will give the per-
ception that shirking one's environmental
responsibilities is a way to keep a failing
enterprise afloat. This exemption does not
apply to situations where the plant was
likely to close anyway, or where there is a
like! ihood of continued harmful
noncompliance.
3 Litigation practicalities.
The Agency realizes that in certain
cases., it is highly unlikely the EPA will be
able to recover the economic benefit in
litigation. This may be due to applicable
precedent, competing public interest con-
siderations, or the specific facts, equities,
or evidentiary issues pertaining to a par-
ticular case. In such a situation it is unre-
alistic to expect EPA to obtain a penalty
ir; litigation which would remove the eco-
nomic benefit. The case development team
[hen may pursue a lower penalty amount.
II The Gravity Component
As noted above, the Policy on Civil
Penalties specifies that a penalty, to
achieve deterrence, should not only re-
move any economic benefit of noncom-
pliance, but also include an amount re-
flecting the seriousness of the violation.
This latter amount is referred to as the
"gravity component." The purpose of this
section of the document is to establish an
approach to quantifying the gravity com-
ponent. This approach can encompass the
differences between programs and still
provide the basis for a sound consistent
treatment of this issue,
A. Quantifying the gravity of a
violation
Assigning a dollar figure to represent
the gravity of a violation is an essentially
subjective proceu. Neverthelew, the rela-
tive seriousness of different violations can
be fairly accurately determined in most
cases. This can be accomplished by refer-
ence to the goals of the specific regulatory
scheme and the facts of each particular
violation. Thus, linking the dollar amount
of the gravity component to these objec-
tive factors is a useful way of insuring that
violations of approximately equal icriou*-
nesi are treated the same way.
Such a linkage promote* consistency.
This consistency strengthens the Agency's
position both in negotiation and before a
!ner of fact. This approach consequently
jiio encourages swift resolution of envi-
ronmental problems.
Each program must develop a system
for quantifying the gravity of violations of
the laws and regulations it administers.
This development must occur within the
context of the penalty amounts authorized
b;> law for that program. That system
must be based, whenever possible, on ob-
jective indicators of the seriousness of the
violation. Examples of such indicators- art
g:\trn below. The seriousness of th« viola-
tor, should be based primarily on^ I) the
ri^k of harm inherent in the violation at
thi1 time it was committed and 2) the
actual harm that resulted from the viola-
tier. In some Cases, the seriousness of the
-------
EPA 1984 CIVIL PENALTY POLICY
S-698
41:2999
risk of harm will exceed thai of the actual
harm. Thus, ea;h system should provide
enough flexibility 10 allow EPA to consid-
er both factors in assessing penalties.
Each system must also be designed 10
minimize the possibility thai two persons
applying [he system to ihe same set of
facts would come up with substantially
different numbers. Thus, 10 the extent the
system depends on categorizing events,
those categories must be clearly defined.
Thai way there is little possibility for ar-
gument over the category in which a viola-
tion belongs. In addition, the categoriza-
tion of the event* relevant to the penalty
decision should be noted in the penalty
development portion of the case file.
B. Gravity Factors.
in quantifying the gravity of a violation.
a program-specific policy should tank dif-
ferent types of violations according to the
seriousness of the act. The following is a
suggested approach to ranking the serious-
ness of violations. In this approach to
ranking, the following factors should be
considered:
• Actual or possible harm: this factor
focuses on whether (and to what extent)
the activity of the defendant actually re-
sulted or was likely to result in an unper-
mitted discharge or exposure.
• importance to the regulatory scheme:
This factor focuses on the importance of
the requirement to achieving the goal of
the statute or regulation. For example, if
labelling is the only method used to pre-
vent dangerous exposure to a chemical,
then failure to label should result in a
relatively high penalty. By contrast, a
warning sign that w-as visibly posted but
was smaller than the required size would
not normally be considered as serious.
* Availability of data from other
sources: The violation of any recordkeep-
ing or reporting requirement is a very
serious matter. But if the involved require-
ment is the only source of information, thr
violation is far more serious By contrast,
if the Agency has another readily avail-
able and cheap source for the necessary
information, a smaller penalty may be
appropriate. (E.g. a customer of the viola-
tor purchased all the violator's illegally
produced substance. Even though the vio-
lator does not have the required records.
the customer does.)
•Size of violator: In some cases, the
gravuy component should be increased
where it is clear that the resultant penalty
will otherwise have little impact on the
violator in light of the risk of harm posed
by the violation This factor is only rel-
evant to the extent it is not taken into
account by other factors.
The assessment of the first gravity fac-
tor listed above, risk or harm arising from
a violation, is a complex matter. For pur-
poses of ranking violations according to
seriousness, it is possible to distinguish
violations within a category on the basis of
certain considerations, including the
following:
• Amount of pollutant: Adjustments for
the concentration of the pollutant may b«
appropriate, depending on the regulatory
scheme and the characteristics of the pol-
lutant. Such adjustments need not be lin-
ear, especially if the pollutant can be
harmful at low concentration*.
• Toxicity of the pollutant: violations
involving highly toxic pollutants are more
serious and should result in relatively larg-
er penalties.
•Sensitivity of the environment: This
factor focuses on the location where the
violation was committed. For example, im-
proper discharge into waters near a drink-
ing water intake or a recreational beach is
usually more serious than discharge into
waters not near any such use.
»The length of lime a violation
continues:
In most circumstances, the longer a vio-
lation continues uncorrected, the greater u
the risk of harm.
Although each prog ram-specific polic)
should address each of the factors listed
above, or determine why it is not relevant.
the factors listed above are not meant to
be exhaustive. The programs should make
every effort to identify all factors relevant
to assessing the seriousness of any viola-
tion The programs should then systemati-
caliy prescribe a dollar amount to yield a
gravity component for the penalty. The
program-specific policies may prescribe 2
dollar range for a certain category of vio-
lation rather than a precise dollar amour.1.
within that range based on the spccifi:
facts of an individual case
The process by which the gravity com-
ponent was computed must be memorial-
ized in the case file. Combining the bene-
fit component with the gravity component
yields the preliminary deterrence amount.
In some classes of cases, the normal
gravity calculation may be insufficient to
effect general deterrence This could hap-
pen if there was extensive noncomphancc
wiih certain regulatory programs in specif-
ic areas of the United States. This would
demonstrate that the normal penalty as-
sessments had not been achieving general
deterrence. The medium specific policies
should address this issue. One possible
approach would be to direct the case de-
velopment team to consider increasing the
gravity component within a certain range
to achieve general deterrence. These extra
assessments should be consistent with the
other goals of this policy.
Initial and Adjusted Penalty T»rgcl Figure
The second goal of the Policy on Civil
Penalties is the equitable treatment of the
regulated community. One important
mechanism for promoting equitable treat-
ment is to include the benefit component
discussed above in a civil penalty assess-
ment. This approach would prevent viola-
tors from benefiting economically from
their noncompltance relative to parties
which have complied with environmental
requirements.
In addition, in order to promote equity,
the system for penalty assessment must
have enough flexibility to account for the
unique facts of each case. Yet it still must
produce enough consistent results to treat
similarly-situated violators similarly. This
is accomplished by identifying many of
the legitimate differences between cases
and providing guidelines for how to adjust
the preliminary deterrence amount when
those facts occur. The application of these
adjustments to the preliminary deterrence
amount prior to the commencement of
negotiation yields the initial penalty target
figure. During the course of negotiation.
the case development team may further
adjust this figure to yield the adjusted
penalty target figure.
Nevertheless, it should be noted that
equitable treatment is a two-edged sword.
While it means that a particular violator
will receive no higher penalty than a simi-
larly situated violator, it also means that
the penalty will be no lower.
by THE ByREAU Or NATIONAL AFFAIRS INC.. Washington. D.C. 20037
23
-------
41:3000
FEDERAL LAWS
1. Flexibility-Adjustment Kiaors.
The purpose of this section of ;hs docu-
ment is to establish additional adjustment
factors to promote flexibility and to identi-
fy management techniques that will pro-
mote consistency This section sets out
guidelines for adjusting penalties to ac-
count for some factors that frequently dis~
linguish different cases. Those factors arc:
degree of willfulness and/or negligence,
degree of cooperaiian/noncooperauon, his*
lory of noncompliance. ability to pay, and
other unique factors. Unless otherwise
specified, these adjustment factors will ap-
ply only to the gravity component and not
to the economic benefit component. Viola-
tors bear the burden of justifying mitiga-
tion adjustment! they propose based on
these factor*.
Within each factor there are three sug-
gested ranges of adjustment. The actual
ranges for each medium-spec! fie policy
will be determined by those developing the
policy. The actual ranges may differ from
these suggested ranges based upon pro-
gram specific needs. The first, typically a
0-20% adjustment of the gravity compo-
nent, is within the absolute discretion of
the case development team.' The second,
typically a 21-30% adjustment, is only
appropriate in unusual circumstances. The
third range, typically beyond 30% adjust-
ment, is only appropriate in extraordinary
circumstances. Adjustments in the latter
two ran get, unusual and extraordinary cir-
cumstance*, will be subject to scrutiny in
any performance audit. The case develop-
ment team may wish lo reevaluate these
Adjustment factors as the negotiations pro-
grtii, This allows the team to reconsider
evidence used as a basis for the penalty in
light of nc* information.
Where the Region develops the penalty
figure, the application of adjustment fac-
tors will be part of the planned Regional
audits. Headquarters will tw responsible
for proper application of these factors in
nationally-managed cases. A detailed dis-
cussion of these factors follows,
A. Degree of Willfulness and /or
J Ab*olgte discretion meant ihit th? CAST devel-
opmeni team may make penalty development
decisions independent of EPA Headquarter!.
Nevertheless tt is understood that in all judicial
miller*, the Department of JUJIICE can slili
review these determination* if ihey so desire. Of
count the authority to e*ercu* the Agency'*
concurrence in final tctilementi u covered by
the applicable
Although most of the statutes which
EPA administers are strict liability stat-
uies, this does not render thi violator's
willfulness and/or negligence irrelevant.
Knowing or willful violations can give rise
to criminal liability, and the lack of any
culpability may, depending upon the par-
ticular program, indicate that no penalty
action is appropriate. Between these two
extremes, the willfulness and/or negli-
gence of the violator should be reflected in
the amount of the penalty.
In assessing the degree of willfulness
arid/or negligence, all of the following
points should be considered in most cases:
• Ho* much control the violator had
over the events constituting the violation.
• The for«eeability of the events consti-
tuting the violation.
• Whether the violator took reasonable
precaution* against the events constituting
the violation.
• Whether the violator knew or should
have known of the hazards associated with
the conduct.
• The level of sophistication within the
industry in dealing with compliance issues
and/or the accessibility of appropriate
control technology (if this information is
readily available). This should be bal-
anced against the technology forcing na-
ture of the statute, where applicable.
* Whether the violator in fact knew of
the legal requirement which was violated
It should be noted that this last point.
lack of knowledge of the legal require-
ment, should never be used a' a basis to
reduce the penalty. To do so would en-
courage ignorance of the law. Rather.
knowledge of the law should serve only to
enhance the penalty.
The amount of control which the violator
had over how quickly the violation was
remedied is also relevant in certain cir-
cumstances. Specifically, if correction of
the environmental problem was delayed by
factors which the violator can clearly show
were not reasonably foreseeable and out of
its control, the penally may be reduced.
The suggested approach for this factor
is for the case dcvelopemtn team to have
absolute discretion to adjust the penalty
up or down by 20~c of (he gravity compo-
nent. Adjuitrnents in the ± 21-30^ range
should only be made in unusual circum-
stances. Adjustment for (his factor be-
yond * 30^ should be made only in
extraordinary circumstances. Adjustments
in the unusual or extraordinary circum-
stance range will be subject to scrutiny in
any audu of performance.
5. Degree of Cooperation/Noncooptrc-
tion
j
The degree of cooperation or noncooper-
ation of the violator in remedying the
violation is an appropriate factor to con-
sider in adjusting the penalty. Such ad-
justments arc mandated by both the goals
of equitable treatment and swift resolution
of environmental problems. There arc
three areas where this factor is relevant.
I. Prompt reporting of noncompiiance.
Cooperation can be manifested by the
violator promptly reporting its noncom-
piiance. Assuming such self-reporting is
not required by law, such behavior should
result m the mitigation of any penalty.
The suggested range! of adjustment arc
as follows The case development team has
absolute discretion on any adjustment! up
to ± 10% of the gravity component for
coopers lion/noncooptralion. Adjustments
can be made up to ± 20% of the gravity
component, but only in unusual circum-
stances. In extraordinary circumstances,
such as ietf reporting of a TSCA preirun-
ufaciure notice violation, the case develop-
ment team may adjust the penalty beyond
the ± 20% factor. Adjustments in the
unusual or extraordinary circumstances
ranges will be subject lo scrutiny in any
performance audit.
2. Prompt correction of environmental
problems.
The Agency should provide incentives
for the violator to commit to correcting
the problem promptly. This correction
must lake place before litigation is begun,
except in extraordinary circumstances,'
Bui since these incentives must be consist-
oJ this doeumvtti. lin&fci*m
• for udmininrative acnom • where the respond-
,-- filts i reponsi 10 in jdmmiurinte complaint
- * h*n i!^ 11 mi u> fii< tijwftrt Of
« for judicni actions • when in Asilium Untied
LUM Attorney filei a complaint in court
-------
EPA 1984 CIVIL PENALTY POLICY
S-698
41:3001
cm with deterrence, they must be used
judiciously.
The circurnsiantc:, under which the pen-
alty is reduced depend on the type of viola-
tion involved and the source's response to
the problem, A straightforward reduction
in (he imcmnt of the gravity component of
the penally is most appropriate in those
cases where either I) the environ men til
problem is actually corrected prior to initi-
ating litigation, or 2) ideally, immediately
upon discovery of the violation. Under this
approach, the reduction typically should
be a substantial portion of the unadjusted
gravity component,
Ip general, the earlier the violator insti-
tuted corrective action after discovery of
»he violation and the more complete the
corrective action instituted, the larger (he
penalty reduction EPA will consider, At
the discretion of the case development
team, the ynadjusted gravity component
may be reduced up to 50% This would
depend on ho* long the environmental
problem continued before correction and
the amount of any environmental damage.
Adjustments greater than 50% are permit-
ted, but will be (he subject of close scruti-
ny in auditing performance.
It ihould bt noted thai in lome instance*,
the violator will take ail necessary steps
toward correct ing the problem but may
refuse to reach any agreement on penal-
ties. Similarly, a violator may take tome
steps to ameliorate the problem, but
choose to litigate over what constitutes
compliance. In such cases, the gravity
component of the penalty may be reduced
up to 2Src at the discretion of the case
development team This smaller adjust-
ment still recognizes the efforts made to
correct the environmental problem, but
the benefit to the source is not as great as
if a complete settlement is reached, Ad-
justments greater than 25% are permuted,
by t will be ihe subject of close scrutiny in
auditing performance.
In all instances, the facts and rationale
justifying the penalty reduction musi be
recorded in the case file and included in
any memoranda accompanying
settlement.
3. Delaying compliance.
Swift resolution of environmental prob-
lems will be encouraged if the violator
clearly sees that it will be financially dis-
advantageous for the violator to litigate
without remedying noneompliance. The
settlement terms described in the preced-
ing section arc only available to parties
who take steps to correct a problem prior
lo initiation of litigation. To some extem.
this-is an incentive to comply as soon as
possible. Nevertheless, once litigation has
commenced, it should be clear that the
defendant litigates at its own risk.
in addition, the methods for computing
the benefit component and the gravity
component are both structured so that the
penalty target increases the longer the
violation remains uncorrected. The larger
penally for longer noneompliance is sys-
tematically linked to the benefit* accruing
to the violator and to the continuing risk
to human health and the environment,
This occurs even after litigation has com-
menced. This linkage will pyt the Agency
in a strong position 10 convince the trier of
fact 10 impose such larger penalties. For
these reasons, the Policy on Civil Penal-
tits provides substantial disincentive* to
litigating without complying,
C. History of monfontpliantf.
Where a party has violated a similar
environmental requirement before, this is
usually clear evidence that the party was
not deterred by the Agency's previous en-
forcement response. Unless the previous
violation was caused by factors entirely
out of the control of the violator, thii ii *n
indication thai the penally ihould be ad-
justed upwards.
In deciding how large these adjustments
should be, the case development team
should consider the following points:
• Ho* similar the previous violation
was.
• How recent the previous violation was.
• The number of previous violation.
« Violator's response to previous viola-
lion(s) in regard to correction of the pre-
vious problem.
Detailed criteria for whai constitutes a
"similar violation" should be contained in
each program-specific policy. Nevertheless
a violation should generally be considered
"similar" if the Agency's previous enforce-
ment response should have alerted the par-
ty to a particular type of compliance prob-
lem. Some facts that indicate a "similar
violation" was committee! are as follows:
• The same permit was vioiated.
* The same substance wis involved.
* The same process points were the
source of the violation.
» The same statutory or regulatory pro-
vision was violated,
•A similar act or omission (e.g. the
failure to properly store chemicals) was
the basis of the violation.
For purposes of this section, a "prior
violation" includes any act or omission for
which a formal enforcement response has
occurred (e.g., notice of violation, warning
letter, complaint, consent decree, consent
agreement, or final order). It also includes
any act or omission for which the violator
has previously been given written notifica-
tion, however informal, thai the Agency
believes a violation exist*.
In the case of large corporation* with
any divisions or wholly-owned subsidiaries.
it is sometimes difficult to determine
whether a previous instance of noneom-
pliance should trigger the adjustments de-
scribed in thii section. New ownership
often raises similar problems. In miking
this determination, the case development
team should ascertain who in the organi-
zation had control and oversight responsi-
bility for the conduct resulting in the vio-
lation. In some situations the same persons
or the same organizational unit had or
reasonably should have had control or
oversight responsibility for violative con-
duct. In those eases, the violation will be
considered jsrt of the compliance history
of that regulated party.
Jn general, the case development team
should begin with the assumption that if
the same corporation was involved, the
adjustment! for history of noncomphance
should apply. In addition, the case devel-
opment team should be wtry of a party
changing operators or shifting responsibil-
ity for compliance to different groups as a
way of avoiding increased penalties. The
Agency may find a consistent pattern of
noncomplianee by many divisions or sub-
sidiaries of i corporation even though the
facilities are at different geographic loca-
tions. This often reflects, «t best, a corpo-
rate-wide indifference to environmental
protection Consequently, the adjustment
for history of noncompliance should prob-
ably apply unless the violator can demon-
strate that the other violating corporate
facilities are independent.
The following are the Framework's sug-
gested adjustment ranges. If the pattern is
6-1-B4
Put>«»i«d
™£ BUREAU Of NATIONAL AFFAIRS INC..
gion, D.C 20037
-------
41:3002
FEDERAL LAWS
one of "dissimilar" violations, relatively
few in number, the case development team
has absolute discretion to raise tiit penally
amount by 35% For a. relative!) large
number of dissimilar violations, the grav-
ity component can be increased up to 70%.
!f the pattern is one of "similar" viola-
tions, the case development learn has abso-
lute discretion to raise the penally amount
up to 35% for the fint repeal violation.
and up to 70% for further repeated similar
violations. The case development team
may make higher adjustments in extraor-
dinary circumstances, bui such adjust-
ments will be subject to scrutiny in any
performance audit.
D. Ability to pay.
The Agency will generally not request
penalties that are clearly beyond the
means of the violator. Therefore EPA
should consider the ability to pay a penal-
ty in arriving at a specific final penalty
assessment. At the same time, it is impor-
tant that the regulated community not see
the violation of environmental require-
ments ai a way of aiding » financially
troubled busineni. EPA reserves the op-
tion, in appropriate circumstances, of
seeking a penally thai might pui a com-
pany out of business.
For example, ii is unlikely that EPA
would reduce a penalty where a facility
refuses 10 correci a serious violation The
same could be said for a violator with a
long history of previous violation). That
long history would demomiraie that less
severe measures are ineffective.
The financial ability adjustment will
normally require a significant amount of
financial information specific to the viola-
tor. If this information is available prior to
commencement of negotiations, it should
be assessed as part of ihe initial penalty
target figure. If it is not available, the case
development learn should assess this factor
after commencement of negotiation with
the source,
The burden 10 demonstrate inability to
pay. as with the burden of demonstrating
the presence of any mitigating circum-
stances, rests on the defendru. If [he viola-
tor fails to provide sufficient information,
then the case development team should
disregard this factor in adjusting the pen-
alty. The National Enforcement Invettiga-
ttons Center (NEIC) has developed the
capability to assist the Regions in deter-
ng 3. firm's ability to pay Further
information on this system will be made
available shortly under separate cover,
When it is determined that a violator
cannot afford the penalty prescribed by
this policy, the following options should be
considered:
• Consider a delayed payment schedule:
Such a schedule might even be contingent
upon an increase in sales or some other
indicator of improved business. This ap-
proach is a real burden on the Agency and
should only be considered on rare
occasions.
• Consider non-monetary alternatives,
such as public service activities: For exam-
ple, in the mobile source program, fleet
operators who tampered with pollution
control devices on their vehicles agreed to
display ami-iampering ads on their vehi-
cles. Similar solutions may be possible in
other industries.
• Consider straight penally reductions
as a last recourse: If this approach is
necessary, the reasons for the case devel-
opment team's conclusion as to the size of
the necessary reduction should be made a
part of ihe formal enforcement file and
the memorandum accompanying the
setilement.1
• Consider joinder of the violator's indi-
vidual owners: This is appropriate if
joinder is legally possible and justified
under the circumstances,
Regardless of the Agency's determina-
tion of an appropriate penalty amount lo
pursue based on abilily to pay consider-
aiions. the violator is siill expected to com-
ply with the law.
£, Other uniqur factors.
Individual programs may be able to pre-
dict other factors thai can be expected to
affect the appropriate penalty amount.
Those factors should be ideniified and
guidelines for their use set out in the
program-specific policies. Nevertheless,
each policy should allow for adjustment
for unanticipated factors which might af-
fect the penally in each case.
Ii is suggested that ihere be absolute
discretion to adjust penalties up Of down
by 10 r. of the gravity component for such
reasons Adjustments beyond the absolute
discretion range will be subject to scrunnv
during audits. In addition, they wi|i prj,
manly be allowed for compelling public
policy concerns or the strengths and equi-
ties of the case The rationale for the
reduction must be expressed in writing in
the case file and in any memoranda ac-
companying the settlement. See the dis-
cussion on pages 12 and 13 [41:2998 and
41:2999] for further specifics on adjust-
ments appropriate on the basis of either
compelling public policy concerns or the
strengths and equities of the case.
11 Alternative Payments,
In the past, the Agency ha* accepted
various environmentally beneficial expen-
ditures in setilement of a case and chosen
not to pursue more severe penalties, In
general, the regulated community has
been very receptive to this practice. In
many cases, violators have found "alierna-
tive payments" to be more attractive than
a traditional penalty. Many useful projects
have been accomplished with such funds.
But in some instances, EPA has accepted
for credit certain expenditures whose actu-
al environmental benefit has been some-
what speculative.
The Agency believes that ih«e altcrna-
live payment projects should be reserved
as an incentive to settlement before litiga-
tion, for this reason, such arrangement*
will be allowed only in prelitigation agree-
ments except in extraordinary
circumstances.
In addition, the acceptance of alterna-
tive payments for environmentally benefi-
cial expenditures is subject to certain con-
ditions The Agency has designed these
conditions to prevent the abuse of this
procedure. Most of the conditions below
applied in the past, but some are new. All
of these condiiions must be met before
alternative payments may be accepted:*
' !f a firm fails to pav the agrecd-lo penally
in an administrative or judicial final order, [hen
the Agency muii folio* the Federal da, mi
Collection Act procedures for obtaining the
penalty amount.
' In extraordinary circumstances, the Agency
may choose noi 10 pursue higher penalties for
"aiiernauve" work done prior to commence-
fiisrtt of negotiation! For example. i_firm may
riiijll a product found lo be in violation despite
I.-? fat; that such recall is not required. In
v'-iler for EPA to forgo seeking higher penalties,
• •,- viola lor must prove that it hai met tlic other
•; Tidmons herein stated. If the violator failj to
Trove this in a satisfactory manner, the die
envelopment team has the diicret&n 10 co*n-
fM'idy disallow the crcdu project. Ai *ilh all
Environmsfll
-------
EPA 1984 CIVIL PENALTY POLICY.
41,3003
» No credits can bs given for a;iiv;ites
that currently ire or <*ill be required un-
der turrenl law or are likely >,;j be required
under existing statutory authority :r> the
forseeablc future te g,, through upcoming
nilemaking).
* The majority of the project's environ-
menial benefit should accrue to the gener-
al public rather than to the source or any
particular governmental unit.
• The project cannot be something
which the violator could reasonably be
expected to do as part of sound business
practice*.
• EPA must not lower the amount it
decide* to acecept in penalties by more
than the after-tax amount the violator
spends OR the project,'
In all cases wjiere alternative payments
arc allowed, the case file should contain
documentation showing that each of the
conditions listed above have been met in
that particular case. In addition when con-
sidering penally credits. Agency negotia-
tors should lake into account the following
points;
• The project should not require a large
amount of EPA oversight for its compie-
tion, In genera! the less oversight the pro-
posed credit project *ould require from
alternative projects, the case development team
has the discretion to still pursue some penalties
in settlement
' This limitation dors not apply to public
awareness activities such Ji those employed (or
fuel switching and tampering violations under
the Clean Air Act. The purpose of ihc limita-
tion is to preserve the dcterrem value of the
settlement But these violation; are often the
result of pyblie misconceptions about the eco
nomic value of these violations. Consequently,
ihc public awareness ictiviues can be effective
in preventing others from violating the law
Thus, the high general deterrem value of public
awareness activities in these circumstances ob-
viates the need for the one-to-one requirement
on penalty credits.
EPA 10 ensure proper completion, the
more receptive; EPA can be toward accept-
ing (he project in settlement.
»The project should receive stronger
consideration if it will result in the abate-
ment of existing pollution, ameliorate the
pollution problem that is the basis of the
government's claim and involve an activity
that could be ordered by a judge as equita-
ble relief.
• The project should receive stronger
consideration it" undertaken at the facility
where the violation took place.
»The company should agree that any
publicity it disseminates regarding its
funding of the project must include a
statement that such funding is in settle-
ment of a lawsuit brought by EPA or the
State.
Each alternative payment plan must en-
tail an identified project to be completely
performed by the defendant. Under the
plan, EPA must not hold any funds which
arc to be spent at EPA's discretion unless
the relevant statute specifically provides
that authority. The fin*! order, decree or
judgment should stale what financial pen-
alty the violator is actually payin| and
describe as precisely as possible the credit
project the violator is expected to perform.
III. Promoting Consistency.
Treating similar situations in a similar
fashion is centra! 10 the credibility of
EPA's enforcement effort and to the suc-
cess of achieving the goal of equitable
treatment. This document has established
several mechanisms to promote such con-
sistency. Yel it still leaves enough flexibil-
ity for settlement and for tailoring shi
penalty to particular circumstances, Per-
haps the most important mechanisms for
achieving consistency are the systematic
methods for calculating the benefit com-
ponent and gravity component of the pen-
ally. Together, they add up to the prelimi-
nary deterrence amount. The documer;
also sets oui guidance on uniform ap-
proaches for applying adjustment factor
to arrive at an initial penally target prior
10 beginning settlement negotiations or an
adjusted penalty target' after negotiations
hav* begun.
Nevertheless, if the Agency is to pro
rnote consistency, tl is essential thai each
case file contain a complete description of
ho* each penalty was developed This de-
scription should cover ho* the preliminary
deterrence amount was calculated and any
adjustments made to the preliminary de-
terrence amount, ft should also describe
the facts and reasons which support such
adjustments. Only through such complete
documentation can enforcement attorneys,
program staff and their managers learn
from each others' experience and promote
the fairness required by the Policy on
Civil Penalties.
To facilitate ihe use of this information,
Office of Legal and Enforcement Policy
will pursue integration of penalty informa-
tion from judicial enforcement actions into
a computer system. Both Headquarters
and all Regional offices will have access to
the system through terminals, Thu would
make it possible for the Regions to com-
pare the handling of their cases with those
of other Regions It could potentially allow
the Regions, as well as Headquarters, to
learn from each others' experience and to
identify problem areas where policy
change or further guidance ij needed,
Us* of Petwtlry Fipirt ta
Discussions
The Policy and Framework do not seek
to constrain negotiations. Their goal is to
set settlement target figures for the inter-
nal use of Agency negotiators. Conse-
quently, the penalty figure* under negotia-
tion do not necessarily have to be as low as
the internal target figures. Nevertheless,
the final settlement figures should go no
lower than the tnternal target figures un-
less either; (1) the medium-specific penal-
ly policv so provides or (2) the reasons for
the deviation are properly documented.
6-•!-&
-------
OF FlCE OF
JUL
MEMORANDUM
SUBJECT:
FROM:
EPA's Authority to Issue KPDES General Permits
in Approved NPDES States
Martha G . Prothrc , D i r e c t Q
Permits Division ( EN- 3 36 )
Regional Water Management Divisio-n Directors
It has recently come to my attention that there may be a
misunderstandinc regarding EPA's authority to issue general
per mi t"s ~i n 51 a t e s" wrTijrn' are approved to_admi nister tireNPDES
D r oc r a Hi
have not been specifically aooroved to
c enera.
oerm.
.s
.ease be
.sea
EP
A has no
to f|ssy^ General permits in these NPpgS States.- The Clean
water Act, sec t ion 4lT2"Ic F,requires EPA to suspend issuance
of NPDES permits { including issuance of any general permits
upon approval of a State NPDES program.
However, EPA's inability to issue general permits in
certain NPDES States _do_es not affect its au-hority to issue
permits, whethe:
facilities. E?.:
individual
re~ a i n s re_j
general
perr : ts , _to
VV i c - • • i' r\f
t-*—. ~ ~ - _— J- I I ^
federal
p e_r m 11 s to
fa c 1 1 1 1 i.e s even if 'a 5 taie has been approved to_
ac m i n i s t e~r~ t r. e NPDES
ro
am
_a^_e_ j: r og r a rr. has n o t_
been "rff
cover fecera.1. racilities.
States
fuTTprogram
seek ing
approval after" 1977 have been required to cover
federal facilities, but some States approved prior to that
time have not yet mace the required program modification.)
In contrast to the federal facilities prograrr., the general
permit program does not expand the scope of discharges
covered by the perir.it program but merely auinorizes the
State to issue NPDES p_ermi ts_ through a d i f f e rent. proc_eJd±ujLe_.
In addition, StTte ce"neral perm: ts~ airthor i ty _is^jiot required
. e
-'v *^^
procedur
aT
. but mere l_v
"reform I
autnor i zee anc encoLi'igeo by iPA as a
the t
-------
- 2 -
please bring this general permits issue to the attention
of your Permits staff. If you have any questionst please
call me at FTS 755-2545 or Bill Diamond, Acting Chief,
Consolidated Permits Branch, at FTS 426-4793.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C 20460
NOV 8 1984
MEMORANDUM
SUBJECT: Indian Policy Implementation Guidance
FROM; Alvln L, Aim
Deputy Administrator
TO; Assistant Administrators
Regional Administrators
General Counsel
INTRODUCTION
The Administrator has signed the attached EPA Indian Policy. This
document sets forth the broad principles that will guide the Agency in
its relations with American Indian Tribal Governments and in the adminis-
tration of EPA programs on Indian reservation lands.
This Policy concerns more than one hundred federally-recognized
Tribal Sovernments and the environment of a geographical area that is
larger than the combined area of the States of Maryland, New Jersey,
Connecticut, Massachusetts, Vermont, New Hampshire and Maine. It is an
important sector of the country, and constitutes the remaining lands of
America's first stewards of the environment, the American Indian Tribes,
The Policy places a strong emphasis on incorporating Tribal Govern-
ments into the operation and management of EPA's delegable programs.
This concept is based on the President's Federal Indian Policy published
on January 24, 1983 and the analysis, recommendations and Agency input
to the EPA Indian Work Group's Discussion Paper, Administration of
Environmental Programs on American Indian Reservations (July 1983).
TIMING AND SCOPE
Because of the importance of the reservation environments, we must
begin immediately to incorporate the principles of EPA's Indian Policy
into the conduct of our everyday business. Our established operating
procedures (including long-rasge budgetary and operational planning acti-
vities) have not consistently focused on the proper role of Tribal Govern-
ments or the special legal and political problems of program management
on Indian lands. As a result, it will require a phased and sustained
effort over time to fully implement the principles of the Policy and to
take the steps outlined in this Guidance.
-------
Regions and Program Offices have already made individual starts
along the lines of the Policy -and Guidance, I believe that a clear
Agency-wide policy will enable all programs to build on these efforts so
that, within the limits of our legal and budgetary constraints, the Agency
as a whole can make respectable progress in the next year,
As we begin the first year of operations under the Indian Policy, we
cannot expect to solve all of the problems we will face in administering
programs under the unique legal and political circumstances presented by
Indian reservations. We can, however, concentrate on Igeelfjj: priority
problems and issues and proceed to address these systematicaTTy™*and care-
fully in the first year. With this general emphasis, I believe that we
can make respectable progress and establish good precedents for working
effectively with Tribes, By working within a manageable scope and pace,
we can develop a coordinated base which can be expanded, and, as appropriate,
accelerated in the second and third years of operations under the Policy,
In addition to routine application of the Policy and this Guidance in
the conduct of our everyday business, the first year's implementation effort
will emphasize concentrated work on a discrete number of representative
problems through cooperative programs or pilot projects. In the Regions,
this effort should include the identification and initiation of work on
priority Tribal projects. At Headquarters, it should involve the resolution
of the legalp policy and procedural problems which hamper our ability to
implement the kinds of projects identified by the Regions.
The Indian Work Group (IWGK which Is chaired by the Director of the
Office of Federal Activities and composed of representatives of key regional
and headquarters offices, will facilitate and coordinate these efforts.
The IWG will begin immediately to help identify the specific projects
which may be ripe for implementation and the problems needing resolution
in the first year.
Because we are starting in. "mid-stream," the implementation effort
will necessarily require some contribution of personnel time and funds.
While no one program will be affected in a major fashion, almost all Agency
programs are affected to some degree, I do not expect the investment in
projects on Indian Lands to cause any serious restriction in the States'
funding support or in their ability to function effectively. To preserve
the flexibility of each Region and each program, we have not set a target
for allocation of FY 85 funds. I am confident, however,, that Regions and
program offices can, through readjustment of existing resources, demonstrate
significant and credible progress in the imp!Mentation of EPA's Policy 1n
the next yeir.
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-3-
ACTION
Subject to these constraints, Regions and program managers should now
initiate actions to implement the principles of the Indian Policy. The
eight categories set forth below will direct our initial implementation
activities. Further guidance will be provided by the Assistant Adminis-
trator for External Affairs as experience indicates a need for such guidance.
1. THE ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS WILL SERVE AS
LEAD AGENCY CLEARINGHOUSE AND COORDINATOR FOR INDIAN POLICY MATTERS.
This responsibility will include coordinating the development of
appropriate Agency guidelines pertaining to Indian Issues, the
implementation of the Indian Policy and this Guidance. In this effort
the Assistant Administrator for External Affairs will rely upon the
assistance and support of the EPA Indian Work Group.
2. THE INDIAN WORK GROUP (IWG) WILL ASSIST AND SUPPORT THE ASSISTANT
ADMINISTRATOR FOR EXTERNAL AFFAIRS IN DEVELOPING AND RECOHMENOING DETAILED
GUIDANCE AS NEEDED ON INDIAN POLICY AND IMPLEMENTATION MATTERS. ASSISTANT
ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL SHOULD
DESIGNATE APPROPRIATE REPRESENTATIVES TO THE INDIAN WORK GROUP AND PROVIDE
THEM WITH ADEQUATE TIME AND RESOURCES TO CARRY OUT THE IWG'S
RESPONSIBILITIES THE DIRECTION OF THE ASSISTANT ADMINISTRATOR FOR
EXTERNAL AFFAIRS.
The Indian Work Group, (IWG) chaired by the Director of the Office of
Federal Activities, will be an important entity for consolidating the
experience and advice of the key Assistant and Regional Administrators on
Indian Policy matters. It will perform the following functions: identify
specific legal, policy, and procedural impediments to working directly
with Tribes on reservation problems; help develop appropriate guidance
for overcoming such impediments^ .recommend opportunities for implementation
of appropriate programs or pilot projects; and perform other services 1n
support of Agency managers in implementing the Indian Policy,
The initial task of the IWG will be to develop recommendations and
suggest priorities for specific opportunities for program implementation
in the first year of operations under the Indian Policy and this Guidance.
To accomplish this, the General Counsel and eaci Regional and Assistant
Administrator must be actively represented on the IWG by a staff member
authorized to speak for his or her office. Further, the designated
representative(s) should be afforded the time and resources, including
travel, needed to provide significant staff support to the work of the
IWG.
-------
3, ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD UNDERTAKE ACTIVE OUTREACH AND
LIAISON WITH TRIBES, PROVIDING ADEQUATE INFORMATION TO ALLOW THEM TO WORK
WITH US IN AN INFORMED WAY.
In the first thi rteerr 'years of the Agency's existence, we have worked
hard to establish working relationships with State Governments, providing
background information and sufficient interpretation and explanations to
enable them to work effectively with us 1n the development of cooperative
State programs under our various statutes. In a similar manner, EPA managers
should try to establish direct, face-to-face contact (preferably on the
reservation) with Tribal Government officials. This liaison is essential to
understanding Tribal needs, perspectives and priorities. It will also foster
Tribal understanding of EPA's programs and procedures needed to deal effec-
ti vely with us. .
4. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD ALLOCATE RESOURCES TO MEET
TRIBAL NEEDS, WITHIN THE CONSTRAINTS IMPOSED BY COMPETING PRIORITIES AND BY
OUR LEGAL AUTHORITY.
As Tribes move to assume responsibilities similar to those borne by EPA
or State Governments, an appropriate block of funds must be set aside to
support reservation abatement, control and compliance activities.
Because we want to begin to implement the Indian Policy now, we cannot
wait until FY 87 to formally budget for programs on Indian lands. Accordingly,
for many programs, funds for initial Indian projects in FY 85 and FY 86
will need to come from resources currently planned for support to EPA-and
State-managed programs meeting similar objectives. As I stated earlier, we
do not expect to resolve all problems and address all environmental needs on
reservations immediately. However, we can make a significant beginning
without unduly restricting our ability to fund ongoing programs.
I am asking each Assistant 'Administrator and Regional Administrator to
take measures within his or her discretion and authority to provide sufficient
staff time and grant funds to allow the Agency to initiate projects on Indian
lands in FY 85 and FY 86 that will constitute a respectable step towards
implementation of the Indian Policy.
5. ASSISTANT AND REGIONAL ADMINISTRATORS, WITH LEGAL SUPPORT PROVIDED BY THE
GENERAL COUNSEL, SHOULD ASSIST TRIBAL GOVERNMENTS IN PROGRAM DEVELOPMENT AS
THEY HAVE DONE FOR THE STATES.
The Agency has provided extensive staff work and assistance to State
Governments over the years in the development of environmental programs
and program management capabilities. This assistance has become a routine
aspect of Federal/State relations, enabling and expediting the States'
assumption of delegable programs under the various EPA statutes. This "front
end" investment has promoted cooperation and increased State involvement
in the regulatory process.
-------
-5-
As the Agency begins to deal with Tribal Governments as partners in
reservation environmental programing, we will find a similar need for EPA
assistance. Many Regional and program personnel have extensive experience
in working with States on program design and development; their expertise
should be used to assist Tribal Governments where needed.
6. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL
COUNSEL SHOULD TAKE ACTIVE STEPS TO ALLOW TRIBES TO PROVIDE INFORMED INPUT
INTO EPA'S DECISION-MAKING AND PROGRAM MANAGEMENT ACTIVITIES WHICH AFFECT
RESERVATION ENVIRONMENTS.
Where EPA manages Federal programs and/or makes decisions 'relating
directly or indirectly to reservation environments, full consideration and
weight should be given to the public policies, priorities and concerns of the
affected Indian Tribes as expressed through their Tribal Governments. Agency
managers should make a special effort to inform Tribes of EPA decisions and
activities which can affect their reservations and solicit their input as we
have done with State Governments. Where necessary, this should include provid-
ing the necessary information, explanation and/or briefings needed to foster
the informed participation of Tribal Governments in the Agency's standard-
setting and policy-making activities,
7. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD, TO THE MAXIMUM FEASIBLE
EXTENT, INCORPORATE TRIBAL CONCERNS, NEEDS AND PREFERENCES INTO EPA'S POLICY
DECISIONS AND PROGRAM MANAGEMENT ACTIVITIES AFFECTING RESERVATIONS.
It has been EPA's practice to seek out and accord special consideration
to local interests and concerns, within the limits allowed by our statutory
mandate and nationally established criteria and standards. Consistent with
the Federal and Agency policy to recognize Tribal Governments as the primary
voice for expressing public policy on reservations, EPA managers should, within
the limits of their flexibility, seek and utilize Tribal input and preferences
in those situations where we have traditionally utilized State or local input,
* s
We recognize that conflicts in policy, priority or preference may arise
between States and Tribes as it does between neighboring States. As in the
case of conflicts between neighboring States, EPA will encourage early communi-
cation and cooperation between Tribal and State Governments to avoid and resolve
such issues. This is not intended to lend Federal support to any one party in
its dealings with the other. Rather, it recognizes that in the field of environ-
mental regulation, problems are often shared and the principle of comity between
equals often serves the interests of both.
Several of the environmental statutes include a conflict resolution mechan-
ism which enables EPA to use its good offices to balance and resolve the con-
flict. These procedures can be applied to conflicts between Tribal and State
Governments that cannot otherwise be resolved. EPA can play a moderating role
by following the conflict resolution principles set by the statute, the Federal
trust responsibility and the EPA Indian Policy.
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-6-
8. 'ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD WORK COOPERATIVELY WITH TRIBAL GOVERNMENTS TO ACHIEVE COMPLIANCE WITH
STATUTES AND REGULATIONS ON INDIAN RESERVATIONS, CONSISTENT
WITH THE PRINCIPLE OF SELF-GOVERNMENT.
The EPA Indian Policy recognizes Tribal Governments as the key
governments having responsibility for matters affecting the health and
welfare of the Tribe. Accordingly, where tribally owned or managed
facilities do not meet Federally established standards, the Agency will
endeavor to work with the Tribal leadership to enable the tribe to
achieve compliance. Where reservation facilities are clearly owned or
managed by private parties and there is no substantial Tribal Interest
or control involved, the Agency will endeavor to act 1n cooperation with the
affected Tribal Government, but will otherwise respond to noncompliance by
private parties on Indian reservations is we do to noneompliance by the
vate sector off-reservation.
Actions to enable and ensure compliance by Tribal facilities with
Federal statutes and regulations include providing consultation and
technical support to Tribal leaders and managers concerning the impacts
of noncompliance on Tribal health and the reservation environment
and steps needed to achieve such compliance. As appropriate, EPA may
ilso develop compliance agreements with Tribal Governments and work
cooperatively with other Federal agencies to assist Tribes 1n meeting
Federal standards.
Because of the unique legal and political status of Indian Tribes
in the Federal System, direct EPA actions against Tribal facilities
through the judicial or administrative process will be considered where
the Agency determines, in its judgment, that: (1) a significant threat to
human health or the environment exists, (2) such action would reasonably be
expected to achieve effective results in a timely manner, and (3) the Federal
Government cannot utilize other alternatives to correct the problem 1n a
timely fashion. Regional Administrators proposing to initiate such action
should first obtain concurrence from the Assistant Administrator for Enforce-
ment and Compliance Monitoring, who will act 1n consultation with the Assis-
tant Administrator for External Affairs and the General Counsel, In emergency
situations, the Regional Administrator may issue emergency Temporary Restrain-
ing Orders, provided that the appropriate procedures set forth in Agency
delegations for such actions are followed.
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-7-
9. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD BEGIN TO FACTOR INDIAN POLICY GOALS INTO THEIR LONG-RANGE PLANNING AND
PROGRAM MANAGEMENT ACTIVITIES, INCLUDING BUDGET, OPERATING GUIDANCE, MANAGEMENT
ACCOUNTABILITY SYSTEMS AND PERFORMANCE STANDARDS.
In order to carry out the "principles of the EPA Indian Policy and work
effectively with Tribal Governments on a long-range basis, it will be necessary
to institutionalize the Agency's policy goals in the management systems that
regulate Agency behavior. Where->»e have systematically Incorporated State needs,
concerns and cooperative roles into our budget, Operating Guidance, management
accountability systems and performance standards, we must now begin to factor the
Agency's Indian Policy goals into these same procedures and activities.
Agency managers should begin to consider Indian reservations and Tribes
when conducting routine planning and management activities or carrying out
special policy analysis activities. In addition, the IWG, operating under the
direction of the Assistant Administrator for External Affairs and with
assistance from the Assistant Administrator for Policy, Planning and Evaluation,
will identify and recommend specific steps to be taken to ensure that Indian
Policy goals are effectively incorporated and institutionalized in the Agency's
procedures and operations.
Attachment
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1/8/84
F.PA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24, 1983,
supporting the primary role of Tribal Governments in matters affecting
American Indian reservations. That policy stressed two related themes;
(1) that the Federal Government will pursue the principle of Indian
"self-government" and (2) that it will work directly with Tribal
Governments on a "government-to-government" basis,
The Environmental Protection Agency (EPA) has previously issued general
statements of policy which recognize the Importance of Tribal Governments
in regulatory activities that impact reservation environments. It is the
purpose of this statement to consolidate and expand on existing EPA Indian
Policy statements in a manner consistent with the overall Federal position
in support of Tribal "self-government" and "government-to-government" rela-
tions Detween Federal and Tribal Governments, This statement sets forth
the principles that will guide the Agency in dealing with Tribal Governments
and in responding to the problems of environmental management on American
Indian reservations in order to protect human health and the environment.
The Policy is intended to provide guidance for EPA program managers in the
conduct of the Agency's congressionally mandated responsibilities. As
such, it applies to EPA only and does not articulate policy for other
Agencies in the conduct of their respective responsiDilities.
It is important to emphasize that the implementation of regulatory
programs whicn will realize these principles on Indian Reservations cannot
be accomplished immediately. Effective implementation will take carefyl
and conscientious work by EPA, the Tribes and many others. In many cases,
it will require changes in applicable statutory authorities and regulations.
It will be necessary to proceed in a carefully phased way, to learn from
successes and failures, and to gain experience. Nonetheless, by beginning
work on the priority problems that exist now and continuing in the direction
established under these principles, over time we can significantly enhance
environmental quality on reservation lands,
POLICY
In carrying out our responsibilities on Indian reservations, the
fundamental objective of the Environmental Protection Agency is to protect
human health and the environment. The keynote of this effort will be to
give special consideration to Tribal interests in making Agency policy,
and to insure the close involvement of Tribal Governments in making
decisions and managing environmental programs affecting reservation lands.
To meet this objective, the Agency will pursue the following principles:
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-2-
1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS
ON A ONE-TO-ONE BASIS (THE."GOVERNMENT-TO-GOVERNMENT" RELATIONSHIP) RATH€R
THAN AS SUBDIVISIONS OF OTHER GOVERNMENTS.
EPA recognizes Tribal Governments as sovereign entities with primary
authority and responsibility for the reservation populace. Accordingly,
EPA will work directly with Tribal Governments as the independent authority
for reservation affairs, and not as political subdivisions of States or
other governmental units,
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES
FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLIC-Y DECISIONS AND
FOR RESERVATIONS, CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the Agency
will view Tribal Governments as the appropriate non-federal parties for
making decisions and carrying out program responsibilities affecting
Indian reservations, their environments, and the health and welfare of
the reservation populace. Just as EPA's deliberations and activities have
traditionally involved the interests and/or participation of State Govern-
ments, EPA will look directly to Tribal Governments to play this lead role
for matters affecting reservation environments.
3. THE AGENCY WILL TAKE AFFIRMATIVE 'STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT RESPONSIBILITIES
FOR RESERVATION LANDS.
The Agency will assist interested Tribal Governments in developing
programs and in preparing to assume regulatory and program 'management
responsibilities for reservation lends. Within the constraints of EPA's
authority and resources, this aid will include providing grants and other
assistance to Tribes similar to that we provide State Governments, The
Agency will encourage Tribes to assume delegable responsibilities, (i.e,
responsibilities which the Agency has traditionally delegated to State
Governments for non-rest"vit1on lands) under terms similar to those
governing delegations to States.
Until Tribal Governments are willing and able to assume full responsi-
bility for delegable programs, the Agency will retain responsibility
for managing programs for reservations (unless the State has an express
grant of jurisdiction from Congress sufficient to support delegation to
the State Government), Where EPA retains such responsibility, the Agency
will encourage the Tribe to participate in policy-making and to assume
appropriate lesser or partial roles in the management of reservation
programs.
-------
4, THE HILL TAKE APPROPRIATE STEPS TO EXISTING LEGAL AND
IMPEDIMENTS TO DIRECTLY AND EFFECTIVELY WITH TRIBAL
ON RESERVATION
A number of serious constraints and uncertainties in the language
of our statutes and regulations have limited our ability to work directly
and effectively with Tribal Governments on reservation problems. As
Impediments in our procedures, regulations or statutes are Identified
which limit our ability to work effectively with Tribes consistent with
this Policy, we will seek to remove those Impediments.
5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY, WILL
ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED WHENEVER EPA'S
ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION ENVIRONMENTS.
•»
EPA recognizes that a trust responsibility derives from the his-
torical relationship between the Federal Government and Indian Tribes
as expressed in certain treaties and Federal Indian Law. In keeping
with that trust responsibility, the Agency will endeavor to protect
the environmental interests of Indian Tribes when carrying out Its
responsibilities that may affect the reservations.
6. THE AGENCY WILL COOPERATION TRIBAL, STATE AND
LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL OF MUTUAL CONCERN.
Sound environmental planning and management .require the cooperation
and mutual consideration of neighboring governments, whether those
governments be neighboring States, Tribes, or local units of government.
Accordingly, EPA will encourage early communication and cooperation
among Tribes, States and local governments. This is not Intended to
lend Federal support to any one party to the jeopardy of the Interests
of the other. Rather, 1t recognizes that in the field of environmental
regulation, problems are often shared and the principle of comity
between equals and neighbors often, serves the best interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED
RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST Tri£IR INTEREST AND
SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME ENVIRONMENTAL
PROGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to
protect human health and the envlroniwnt on reservations, We will
work with other agencies to dearly Identify and delineate the roles,
responsibilities and relationships of our respective organizations anet
to assist Tribes in developing and managing environmental programs for
reservation lands.
-------
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ire net in co t n c " t ^ & e" v i " or, T^ n t
"r actic" wo. Id 'ea so~ £ si Y b-s expected tc ac^ievs effective
ly irba~^5", arc i,3; *he "ene"3l Govg"nmerit carrot uti'i'ie
1^ tr:rs?: t^s^s w"8"i '"eservsticr ""ac'litiss a"e clsa^H1 owred o* nar.aced
Dy p*~v3te parties *mc t";;"& is nc sjistan tial "ribal interest c" cortro1.
i ri vol ved, t-s Acje^cy w" "i ". e~c?avo" tc act i~; cocoerstl on witn t^e affected
parties on Ircia- "e s?-va : i en s as trs A;er. cy wculc tc no" corn: ^ - ar ce oy tne
private sectc" e • S£-Wie"e *': trs country. W^are tne T"*oe r,as a substantial
"a^fic* 'in r^ .yii^jri*"'^^i CV^*^ til"1* rx'"^V3*^!V OW^ls d 0 '^ T^ Pi 3 Q$ C
respond as describee i' tne first paras"apn abcvs.
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' ' ^ r s-,'
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:ertr piar"::nc arc rr.a-,; ;e-n&~t processes. Acer
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wi i i •a
-------
GENERAL COUNSEL OPINION
No. 76-20
October 5, 1976
Relationship of Stale-Issued NPDES Permits to the Coastal Zone
Management Act (CZMA)
Coastal Zone Management Aci — Section 307(c)(3) — Relationship of
Sme-issued NPDES permits to Consul Zone Management Act —
NPDES permits issued by a Suite and permits issued under Clean Air
Amendments of 1970 by a State with an approved program are not
"Federal" permiu which subject applicant to consistency requirements
of Section 307(c)(3) — Language of section 307(c)(3) contemplate*
direct Federal agency involvement and nowhere is it implied that licenses
or permits issued by Stales require certification — Once an NPDES
program is delegated to States, Federal role is merely one of oversight
and program becomes a Siait permit program; certification under
CZMA Section 307(c)(3) is not required where Stale agency issues
NPDES permits — License and permit programs pursuant to CAA
require certification only in those instances where EPA acts pursuant to
its owr, regulations (i.e. actually processes and grants the permit) in
accordance with SIP requirements; where Slate conducts the precon-
struction review, or grants licenses, or has been delegated enforcement
auihonty. Section 307(c)(3) requirement does not apply.
QUESTION
You have asked whether National Pollutant Discharge Elimination Sys-
tem (NPDES) permits "issued by a slate and permits issued under the Clean
Air Amendments of 1970 (CAA) by a state with an approved program are
"Federal" permits which subject the applicant lo the consistency require-
ments of section 307(c)(3) of CZMA.
ANSWER
It is our opinion that these permits do not subject the applicant to the
consistency requirements of section 307(c)(3).
DISCUSSION
Coastal Zonr Management Act
Section 307(c)(3) of CZMA requires any applicant for a "required Feder-
al license or permit to conduct any activity" affecting the coastal ior,:'s land
or water uses lo certify that the proposed activity is in compliance, and will
be conducted consistently, with the state's CZMA program. The affected
sutc must then "notify the Federal agency... that the slate concurs with or
objects to" that certification within six months or concurrence with the
certification will be presumed (emphasis added). No license or permit will be
"granted by the Federal agency" until there has been actual or presumed
317 WATER POLLUTION
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GENERAL COUNSEL OPINION No. 76-20
state concurrence with the certification (emphasis added). However, the
license or permit can still be granted if the Secretary of Commerce finch the
activity consistent with CZMA's objectives or necessary because of national
security, after providing "reasonable opportunity for detailed comments
from she Federal agency involved" and from the state (emphasis added).
The language of section 30"?(c)(3) clearly is geared to direct Federal
agency involvement. Nowhere is it implied that the licenses or permits issued
by states require certification.
Federal Water Pollution Control Ac: Amendments of
Section 402 of FWPCA establishes a permit system (N'PDES) to regulate
the discharge of pollutants. The NPDES program may be assumed by a
state; the Administrator must approve any state program which has been
submitted when he determines that the state has "adequate authority" to
carry out certain functions. Section 402(b). Upon approvit of a state
program the Administrator must suspend issuance of EPA-issued permits.
Section 402(c}{l). If the Administrator determines that a state is not
administering an approved program in accordance with the requirements of
section 402, he can withdraw approval of the program. Section 402(c}(3).
States having approved programs may adopt Federal guidelines or estab-
lish their own guidelines and regulations for program operation as long is
certain minimum federal requirements arc met. Section 3Q4(h)(2). As long
as the state administers the program in accordance with the requirements of
section 402, it has flexibility to include in its permits more stringent limita-
tions and standards than are established by EPA. Section 510.
Once the NPDES program is delegated to slates, the Federal role becomes
merely one of oversight to assure continued compliance with the minimum
requirements of section 402. Thus, it is clear that the NPDES program.
when assumed by a state, is a state permit program, and that certification
under CZMA section 307(c){3) wjl) not be required for projects where a
state agency issues NPDES permits..
The legislative history of FWPCA supports the fact that state issued
permits under section 402 "are not Federal permits — but State permits...."
H. Rep. 91-911, 92d Cong. 2d Sess., p. 12", vol. 1, Legislative History, p.
814. Moreover, state issued NPDES permits are not subject to the NEPA
requirements of environmental impact statements reserved for "Federal
actions". See Vol. 1 IS Cong. Rec. Part 125, 92d Cong., 2d Sess. p. 33761
(statement of Mr, Wright).
Clean Air Aci
The logic of the F*WPCA discussion above also holds for CA.A: CZMA
section 307(c)(3) certification is only required where EPA itself processes
and grants the license or permit, Thus, certification will not be required
WATER POLLUTION 318
-------
GENERAL COUNSEL OPINION No. 76-20
where a state agency grants licenses or permits under a. federal regulation
pursuant to authority delegated by EPA; neither will it be required where a
sute agency is acting under its own regulation which is pan of a federally-
approved State Implementation Plan {SIP}.
More specifically, the following types of licenses/permit programs under
CAA may be discussed:
I. ^reconstruction Review for Ambieni Air Standards. By virtue of 40
C.F.R. SI.IS, each SIP must contain a regulation for preconstruction
review of new air pollution sources to insure that such & new source
will not interfere with the attainment or maintenance of the ambient
standards. In almost every case, states have their own regulations
which have been approved as pan of the SIP. EPA has been required
to promulgate its own preconstruaion review regulation in place of
defective (or non-existent) state regulations only in California,
Arizona, Nevada, Michigan, Indiana (only for some sources), and
Utah (only for part of the state).
The certification requirement of CZMA section 307(c)(3) would therefore
only apply in those few slates where EPA is conducting review under its own
regulation. Even in these few states, if EPA delegates it review authority to a
suie or local government, then the certification requirement would not apply
in the area covered by the delegation. For instance, certain local govern-
ments in the San Francisco area have been delegated review authority under
the EPA regulation which was promulgated for California. Thus, a permit in
the Los Angeles area would be subject to section 307(c)(3) certification
while a permit in the San Francisco area would not..
2, Preconstruciion Review for Prevention of Significant Air Quality
Deterioration (PSD). By virtue of 40 C.F.R. 52.15, each SIP must
contain a regulation for preconstrxiction review- of new air pollution
sources to insure that such a new source will not significantly deterio-
rate ai: quality where that quality is now better than the ambient air
standards. Hert, unlike the ambient preconstruction review example
(—1 above), EPA presently grants permiti under its own regulation in
almost every state. Thus at this time, the section 307(c)(3) certifica-
tion requirements would apply almost nationwide with respect to
PSD.
EPA is encouraging states, however, either to adopt their own PSD
regulations as pan of their approved SIP, or to assume --ibe permitting
authority under EPA's own regulation pursuant to a delegation. Wherever
cither of these events occun, the section 307(c)(3) requirements would ce&se
to apply. At present, no state has completed the prociis of incorporating its
own regulation into its SIP, although North Dakota it close; Georgia is the
only state which has been delegated review authority under EPA's own
regulation. Wos: states have refrained from acting in this area pending
319 WATER POLLUTION
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GENERAL COUNSEL OPINION No. 76-20
Congressional action on CAA amendments. It is reasonable to assume that
over the next year or two, msny states will choose to uke over the PSD
program from EPA and that the applicability of the section 3Q7(c)(3)
requirement will correspondingly shrink.
3, Preconstruction Review for National Emission Standards for
Hazardous Air Pollutants (NESffAPS), Pursuant to CAA section
1J 2 EPA has determined that sources of isbestos, mercury, and
beryllium emissions must be subjected to preeonstruction review (to
assure that specific emission limits will be rnci). Under section
112(d), EPA's enforcement authority may be delegated to the states.
(We do not know how many states have asked for or received this
authority; we have the impression that quite a few have received it.
The Office of Enforcement (DSSE) should, have a complete list.)
Again, where a state is conducting preconstruttion review, the
CZMA section 3D?(c)(3) requirement would not apply,
4. New Source Perfgrmanse Stendards (NSPS), QFA's September 16
memo listed NSPS along with other CAA programs. There is no
preeonstryetion review requirement associated with NSPS, however.
In fact, the legislative history of CAA section 111 makes quite clear
that .Congress affirmatively rejected such a requirement. See S. Rep.
No. 91-1196 (1970) at p. 17. Thus there is no Federal "license or
permit" here and CZMA section 3Q7{e)(3) would dearly not apply.
5, SIP Requirements in Central. There may be other SIP requirements
developed in particular states which require a license or permit.
Again, the general rule should be easy to apply: unless EPA actually
processes and grants the permit, the section 307(c)(3) certification
recjuirementj will not apply,
WATER POLLUTION 320
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GENERAL COUNSEL OPINION
No. 77-2
February 22, 1977
State Authority Under Section 301(c) of the FWPCA
Federal Water Pollution Control Act — State authority under Section
301 {c) — Although States play significant role under Section 301 (c),
ultimate decision-ma king authority rests solely with Administrator, and
only he may act under this provision — Legislative history indicates
Congress did not intend States to have decision making authority under
Section 301 (c), nor may such authority be delegated lo them.
A question his been raised as to the extent of Stale authority to modify
Section 301(b)(2)(A) (BAT) requirements pursuant 10 Section 301(c), I
believe that, while States may play a significant role under Section 301 (c),
ultimate decision making authority rests solely with the Administrator and
that this authority may not be assumed by, or delegated to, the States.
Section 301(c) provides:
(c) The Administrator may modify the requirements of subsection
(b)(l){A) of this section with respect to any point source for which a
permit application is filed after July 1, 1977, upon a showing by the
owner or operator of such point source satisfactory to the Adminis-
trator that such modified requirements (1) will represent the max-
imum use of technology within the economic capability of the owner
or operator; and (2) will result in reasonable further progress toward
the elimination of the discharge of pollutants.
Literally, then, only the Administrator may act under this provision. This
is in contrast to Section 316(a}, which explicitly gives KPDES States
authority to modify thermal effluent limitations. Further, Section 402(b),
which details the numerous responsibilities of States with approved NPDES
authority, contains no mention of any State role under Section
301 (c).'Moreover, Section 510 provides;
While Section 402 (b)(I) authorizes States to apph "applicable require*
men:;" of, inter alia, Section 301, this does not rr.can that States may
utilize Section 301 (c). Section 301 (c) is not a "requ:r;ment." Instead, it is
a means of relaxing the requirements of Section 30) (b)(2)(A). Yet there is
no mention in Section 402(b) of any State authority 10 modify the require-
ments of Section 301{b)(2)(A) pursuant to Section 301 (c). Instead, pur-
suant to Section 402(b)(l) States will apply the requirements of Section
301(b)(2)(A) as modified (where appropriate) by the Administrator pur-
suant to Section 301 (c).
361 WATER POLLUTION
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GENERAL COUNSEL OPINION No, 77-2
Except its expressly provided in this Aa ... if an effluent limitation
... is in effect under this Act, [a] State or political subdivision or
interstate agency may not adopt or enforce any effluent limitation . . .
which is less stringent than the effluent limitation , , , under this
Act . , .
Thus, on its face the FWPCA provides no authority for Slates to act under
Section 301 (c).
The legislative history of Section 301 (c) also indicates thai States have no
authority under thai section. The House and Senate bills (H.R. 11896 and S.
2770) contained no provision equivalent to the present Section 301 (c).1
However, Section 301(b)(2)(A) of both bills provided that by 1981 no
discharge of pollutants from industrial point sources was to be allowed
except from sources which showed that compliance with this requirement
was "not attainable at a reasonable cost" Such sources would be given
alternative effluent limitations based upon "best available [demonstrated]
technology." In both bills authority was expressly given to NPDES States to
determine whether BAT should be required in lieu of elimination of
discharge.
The fact that this explicit State role was eliminated in conference must be
considered a significant indication that Congress intended §301 (c) to provide
authority exclusively to the Administrator. In addition, all references to the
§301 (c) which emerged from the conference refer solely to the Adminis-
trator. There are no references to any Slate role.1
Thus, the language and history of Section 301 (c) le*ve no room for &
finding that States have any decision-making authority under that provision.
It also appears to me that such authority cannot be delegated to the States.
The FWPCA carefully delineates the State role in the effort to limit water
pollution and provides detailed instructions as to how and under what
circumstances States can assume functions carried out by the Administrator,
See, e.g.. Section 402 (b) and (c). Given this legislative scheme and the clear
Congressional intent that Section 301(c) authority be exercised by the
federal Administrator, delegation to the States would cleariy be
inappropriate.*
There may be policy and administrative advantages to an important State
role under Section 301 (c), and I can see no legal impediment to any
'Sec A Legislative History of the Federal Water Pollution Control Act
Amendments of 1972 (hereafter, Leg, Hist.) at 963-964, 1609.
'Sec Leg. Hist. 172, 232, 304.
'Delegation within EPA is, of course, a very different matter. See 33 L'.S.C.
§1152 and Reorganization Plan No. 3 of 1970,
WATER POLLUTION 362
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GENERAL COUNSEL OPINION No. 77-2
reasonable cooperative arrangement {such as one giving States authority to
screen 301 (c) requests and make recommendations to the Administrator).
However, ultimate! decision-making responsibility must always rest with
EPA.
WATER POLLUTION
-------
GENERAL COUNSEL OPINION
No. 76-22
Qetotw 12, 1976
Applicability of the FWPCA Section 306
-------
GENERAL COUNSEL OPINION No, "76-22
source at the time of construction. Since there is no case law construing
section 306(d), interpretation must be based directly on a reading of the
FWPCA and relevant legislative history.
The key to a resolution of this matter lies in the Act's restricted definition
of the term "standard of performance" for purposes of section 306:
Sec. 306(a) For purposes of this section: (1) the term 'standard of
performance' means a standard for the control of the discharge of
pollutants which reflects the greatest degree of effluent reduction which
the Administrator determines to be achievable through application of
the best available demonstrated control technology, processes, operating
methods, or other alternatives, including, where practicable, a standard
permitting no discharge of pollutants.
Under this definition, a "standard of performance" is a restriction base on a
determination by tht Adminisiraior. Thus, the short answer to the question
at hand is that section 306(d) — given the above definition — necessarily
only provides immunity from more stringent new source performance
standards set by the Administrator, No immunity from more stringent Slate
standards is indicated by this reading. In the absence of such immunity,
section 510 of the Act, which reserves for States the genera! right to
establish water pollution restrictions which arc more stringent than those
provided for in the Act, would prevail in this instance.
An examination of the legislative history reveals that section 306(d) was
added to the FWPCA by the Conference Committee end was intended as "a
provision comparable to section 301 (f) of the House amendment" (Confer-
ence Report at 128). The Senate version of the bill did not contain any new
source immunity provision. Section 301(0 of the House bill provided:
Notwithstanding any other provisions of this Act, any point source
the construction or modification of which is commenced after the date
of enactment of the Federal Water Pollution Control Act Amendments
of 1972 and before the expiration of the one-year period which begins
on the dale of submission of the report required by section 315 of this
Act, and which is so constructed or modified as to meet effluent limiia-
tioris based upon ihe besi available technology at the time of such
construction or modification, shall not be subject to any more stringeni
cffiutni limiiations with respect to such effluents during a 12 year
period beginning on the date of completion of such construction or
modification or during the period of depreciation or amortization of
such facility for the purposes of section 167 or 169 (or both) of the
Internal Revenue Code of 1954, whichever periods ends first (emphasis
added).
This language is significantly broader than that contained in section 306(d)
of the final version of the Act. The House version would grant immunity for
qualifying sources as to "any more stringent effluent limiiations" during the
WATER POLLUTION 326
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GENERAL COUNSEL OPINION No, 76-22
relevant period. The immunity granted by section 301(0 would seem 10
cover more stringent effluent limitations set by any governmental level for
any purpose, whether such limitations were technology-based or waier quali-
ty-based.
The conferees, however, did not'use the House's broad language..Rather,
they stated that immunity was being granted from any more stringent
"standard of performance", which they had narrowly denned at the begin-
ning of section 306. Indeed, it is a significant indication of the conferees'
intent to create an immunity provision more narrow than that of the House
version's section 301 (f) that they placed such a provision under section 306,
dealing with "National Standards of Performance", rather than under sec-
tion 301 whicb deals in general with "Emvient Limitations". Thus, both the
location and wording which the conferees chose for the immunity provision
— in each case altering the broad provision* of lie House version —
reinforce the conclusion stated at the outset.
The core of the above argument rests on section 306's narrow definition of
the term "standard of performance". Further support for the view that such
a narrow definition was intended to apply throughout section 306 is found in
the Senate Report commentary on the section. Section 306(c) of the final
Act, which was derived from the Senate version, provides:
Each State may develop and submit to the Administrator a procedure
under State law for applying and enforcing standards of performance
for new sources located in such State. If the Administrator finds tbtt the
procedure and the law of any Sute require the application and enforce-
ment of standards of performance to at least the fame extent as required
by this section, such Sute is authorized to apply and enforce such
standards of performance (except with respect to new sources owned or
operated by the United States).
In commenting on this subsection, the accompanying Senate Report
explains:
The Committee language would allow any State to submit to the
Administrator a procedure under which the States would apply and
enforce standards of performance for new sources for water pollution
within that State. If the Administrator considers the procedure to be
adequate, he must delegate this responsibility to the State, However, the
Administrator retains the responsibility for establishing and revising
standards of performance (emphasis added).
(Senate Public Works Committee Report at 60.)
This commentary makes it clear that it was the Senate Committee's under-
standing that "standard of performance" should mean only a standard set by
the Administrator.
327 WATER POLLUTION
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
e
WASHINGTON, D.C. 20460
OFFICE 01=
WATER
MEMORANDUM
SUBJECTS FY 1987 National Guidance for Oversight of NPDES
Programs
FROM: Lawrence J. Jensen
Assistant Administrator for Water
TO: Regional Administrators
Regions I - X
Attached is a copy of the final FY 1987 National Guidance
for Oversight of NPDES Programs. As in previous years, this
guidance was developed in cooperation with our Task Force composed
of Regional and State representatives, including members of the
Association of State and Interstate Watar Pollution Control
Administrators (ASIWPCA). We convened this group Immediately
following completion of the FY 1987 Operating Guidance, and
I am especially pleased that we are able to deliver the final
product to you just as you enter into negotiations with the
States on their FY 1987 work plans for the NPDES program.
The attached guidance makes very few changes with respect to
the basic NPDES activities -of permit issuance, pretreatment,
compliance monitoring, and enforcement. In order to keep our
guidance consistent with the Agency's Policy Framework, however,
we did address two new areas in our FY 1987 Guidance! civil
penalties and the role of the State Attorneys General, In one
other area, Federal facility enforcement, our program guidance
goes beyond the Policy Framework. A brief explanation of these
three issues is in order.
With respect to civil penalties, we had two tasks: to
define "where" it is appropriate for administering agencies to
seek a penalty (or equivalent sanction); and to decide "how" we
plan to 'oversee civil penalty assessments. The guidance is based
on the general presumption that both Regions and States will seek
penalties in connection with all civil judicial actions. In
assessing penalties, the Regions are expected to adhere to the
Clean Water Act (CWA) Penalty Policy; States may use penalties or
equivalent sanctions, ana will base penalty amounts on generic
factors set forth in the guidance. EPA will use periodic audits
to evaluate whether Regions and States are seeking penalties
-------
-2*
where appropriate (judicial referrals) and whether the penalties
were assessed appropriately (CWA Penalty Policy for Regions,
consideration of the specific factors established in the individual
enforcement agreements for States).
In order to be consistent with the Agency's Policy Framework
on the issue of State Attorneys General, our final guidance
establishes some new coordination requirements for both the
Regions and the States, While the guidance clearly retains the
primary relationship that has with State environmental agencies,
it recognizes there is a need for better coordination between
Regional and State v^ater programs and legal staff in order to
carry out national NTPDES enforcement priorities. The guidance
requires the Regions and States to; establish internal procedures
to notify and consult with their Regional Counsel (RC) or Attorneys
General (AG); discuss the annual judicial enforcement commitments
the water program is makingr and ensure that overall coordination
results in timely and appropriate action by the RC/AG. As a
general rule, the guidance says that EPA and the States should
ensure that eases proceed from referral to filing in 60 - 90
days. This timeframe is based on the present MOU between EPA and
the Department of Justice, and is intended to be used as a reason-
able goal rather than a strict deadline.
Finally, with respect to enforcement against Federal facili-
ties, our Oversight Guidance goes farther than the Agency's
Policy Framework. That document recognises that, in comparison
to EPA, the States generally have a much broader range of author-
ities and -tools at their disposal to address violations by Federal
facilities* The Policy Framework gives States the option of
using their own authorities or following the EPA approach of
negotiated compliance agreements. In response to the States'
request, however, the NPDES guidance omits any reference to
States using the compliance agreements process, and says that
States should use their authorities in the s&roa manner and to the
sarae extent as any nongovernmental entity, which is entirely
consistent with §313(a) of the CWA.
I appreciate the effort and progress that you and your staff
have made in negotiating sound agreeements over the past two
years., and I trust you will make certain that these new provisions
are fully implemented in your FY 1987 State/EPA Enforcement
Agreements. Pleasa make this guidance available to your States
immediately so they will be familiar with our expectations as you
begin your negotiations. 1 will be following your progress with
great interest throughout FY 1987, and look forward to continued
improvement in the performance of our Federal/State partnership
in the NPDES program,
cc; Water Division Directors, Regions 1
Water Division Directors, Regions
Regional Counsels, Region I - X
ASIWPGA
Richard Mays, Acting AA/OECM
-------
NATIONAL GUIDANCE
FOR
OVERSIGHT OF NPDES PROGRAMS
FY 1987
BACKGROUND
The Clean Water Act (CWA) authorizes EPA and approved States
to administer the National Pollutant Discharge Elimination System
(NPDES) Program, which is the basic regulatory mechanism for
ensuring that dischargers meet the requirements of-the CWA. There
are currently 3? approved State NPDES programs? 22 of which also
are approved to administer the pretreatment program, EPA retains
the lead responsibility in the balance of the States, but shares
many of the implementation functions of the NPDES program in a
partnership arrangement with State agencies.
EPA has continuing overall responsibility for implementation
or oversight of the NPDES program in all States--approved or not
approved--in order to promote the achievement of national program
goals and objectives, to ensure adherence to Federal and State
statutory and regulatory requirements implementing the CWA, and to
maintain reasonable national consistency. This guidance provides
a set of criteria for evaluating and overseeing NPDES programs?
the criteria also provide a basis for Regions and States to negotiate
annual agreements and/or work plans. The documents
0 Defines the major elements of a sound NPDES program;
-------
0 Outlines high priority achievements for FY 1987;
0 Clarifies how the Region and States should translate specific
program goals and performance expectations into annual
grant agreements and/or work plans; and
0 Defines the respective roles and responsibilities of the
EPA Regions and States in carrying out the NPDES program,
as well as areas where there is a need for further definition
of roles in the individual State agreements.
PURPOSE AND SCOPE
This guidance is a program-specific document for use in
FY 1987. It must be used in conjunction with the "Policy Framework
for State/Federal Enforcement Agreements" (issued June 24, 1984 r as
amended). The "Policy Framework™ covers both the process and the
substance of the Regional/State agreements, and, unless otherwise
specified in this document, the national policy will apply,
This guidance establishes criteria for the NPDES program
including permit issuance reissuanee, compliance monitoring,
enforcement and pretreatment. It is intended to be used as a
framework, with the Regions and the States supplying the details
for their individual agreements and/or work plans based on current
Federal regulations, national policy and guidance documents, and
State priorities'. In reviewing, and, where necessary t updating
oversight agreements, the Regions and States should also us© the
' the FY 1987 Strateg i cPlanj'Unc[
-------
3 -
and Management System/ and the F Y 19_8 7 Of £ ice_ o f._ Water Eva 1 u a t i on
Gu i de, which set forth national priorities and performance expecta-
tions. To the extent possible, all requirements for plans and
strategies cited in this guidance should be consolidated into
existing work plans and/or State-EPA agreements.
Fully-functioning NPDES programs are required to permit all
dischargers, both major and minor, and to conduct appropriate
compliance assessment and enforcement activities for all permittees.
This guidance emphasizes reissuing major industrial and major
municipal permits in FY 1987 to incorporate approved pretreatment
program requirements and new requirements for controlling toxic
discharges. Administering agencies will also continue to reduce
the backlog of expired permits for environmentally significant
minors in accordance with State/Regional strategies. To aid per-
mitting of minors, States should consider seeking authority for
general permit issuance as soon as possible. The guidance also
places priority on rapid response to instances of significant
noncompliance, especially by major dischargers. hs resources
allow, administering agencies* should also address minor dischargers
of concern and other instances of noncompliance. In the longer-term,
the concepts in this guidance should be phased-in for the full
range of sources and violations.
Finally, in response to the Pretreatment Implementation
Review Task Force (PIRT), this guidance addresses oversight of
1. The term "administering agency" refers to EPA Regions and
approved States that administer the NPDES/pretreatment programs.
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administering agency pretreatment programs. The coverage in the
present guidance focuses on modification of NPDES permits to incor-
porate local program requirements, implementation of approved
programs, establishment of general oversight of approved State
programs (including audits and pretreatraent compliance inspections)
and oversight of compliance monitoring, and enforcement response to
violations by PQTWs of pretreatment requirements in NPDES permits
that appear on the Quarterly Noncompliance Report (QNCR), as well
as to violations by industrial users.
ELEMENTS CRITERIA OVERSIGHT PROGRAM
There are three operational elements of the NPDES program that
should be addressed in an effective Regional/Sta'»s agreement and
oversight program: permitting, compliance monitoring, and enforcement
response- There is also & need to ensure the ongoing integrity of
State NPDES programs, as well as their ability to achieve the goals
and objectives of the CWA. One aspect of this concern is adequate
data management in the NPDES program.
**•-;
The Agency has developed a general set of oversight criteria
for all compliance and enforcement programs. 2 This program-specific:
document provides guidance on how to use these criteria, as well as
additional criteria related to permit issuance and the pretreatment
program, to evaluate and oversee the operational elements of the
NPDES program and to negotiate individual agreements and/or work
plans with each State. Such agreements should take into account the
unique circumstances, legal authorities and resources of each State
NPDES program.
2. See "Policy Framework for State/EPA Enforcement Agreements,"
June 24? 1984, as amended.
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•"• 5
I. Permit ting
The CWA (§402) calls for EPA or approved States to issue
permits for the discharge of any pollutant or combination of pollu-
tants. These permits are enforceable documents that contain specific
discharge limitations, as well as conditions on data and information
collection, reporting, and other requirements that the administering
agency deems appropriate. The overall integrity of the NPDES
program is, therefore, inextricably linked to the quality and
timeliness of the permits that are issued by EPA and the NPDES
States,
Evaluation and oversight of permit programs should be based on
the following criteria:
0 Clear identification of the regulated community as
evidenced by the existence and use of!
-- Established procedures for maintaining a complete,
accurate, and up-to-date ^autojnated data system that
includes all sources that are covered by or have applied
for NPDES permits: The administering agency should
maintain a current inventory of all permit holders and
applicants. States should enter current permit data
into the Permit Compliance System (PCS, the automated
NPDES data base) in a timely manner consistent with the
procedures in the Enforcement Management System (EMS).
Where a State is not a regular user of PCS and does not
have an automated system that is compatible with PCS,
it should supply the data to the Region in a form that
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•facilitates EPA's entry of the data into PCS. The
administering agency should also maintain up-to-date
files on individual permittees, and should have a
process for identifying dischargers that are required
to apply for but have not applied for permits and for
following through as necessary in such cases.
— Permit ^aj^^Jha_t__a_re ....... complete, accurate and up-to-date t
The Region is responsible for conducting periodic
audits to verify that each approved State is maintain-
ing current permit files (including an adequate adminis-
trative record) and data in PCS consistent with its
prescribed procedures i the Region should also conduct
periodic audits in cases where an imapproved State is
writing draft permits in a partnership arrangement with
the Region.
* Development an<3 tiroely issuance of high-quality permits and
permit mod if i cat ions as evidenced by the existence and use
of :
An__up_-to- date perm.it issuance list and strategy by
State that guides permit issuance/mod if ica_tion_ consis-
tent with _national priorities and assures that backlogs
do not develop; It is the responsibility of the adminis-
tering agency to develop a strategy and annual permit
issuance lists of priority permits (major and minor) .
In FY 198?,, the priority list for major industrial and
major municipal permits should reflect the National
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- 7 -
Third Round Permit Policy for toxics control? the
list for environmentally significant minor permits
should reflect the ranking factors in the National
Minor Permit Issuance Strategy. The lists should
specify the priority permits to be issued/modified
during the fiscal year (by name and type) consistent
with national and State permitting priorities and the
FY 1987 Operating Guidance. The lists may be modified
periodically to ensure that they reflect changing
conditions throughout the year. At the time the lists-
are developed, the Region and State should agree on
procedures for modifying the lists, as well as the role
of EPA and the State in the permitting process.
Permits that contain appropriate,clear and enforceable
requirements; The administering agency has the respon-
sibility to ensure that individual permits are consistent
with the requirements in the regulations (NPDES, Secon-
dary Treatment, General Pretreatment, State Water
Quality Standards, and effluent guideline regulations),
as well as current national policy, and that permits
contain clear and enforceable provisions. Where the
State is the administering agency, the Region should
identify the specific State permits it plans to review
prior to issuance/modification in accordance with
applicable Federal regulations, and should target those
specific types of priority permits that require early
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-coordination prior to draft permit issuance. The State
should submit copies of draft and final permits consis-
tent with the NPDES regulations (40 CFR §123), and the
Region should conduct periodic audits of permit quality.
Where EPA is the permit issuing authority, the Region
should coordinate with the State to assure timely
review and certification of permits in accordance with
the CWA (§401).
Approval, implementation and overview o£ high-quality_lgca_l
pretreatment programs as evidenced_by the existence and
use of:
— Current proced_ur_e_s__for completing approval of newly
identified pretreatment prograrest The agency administer-
ing the pretreatment program (i.e., approved States or
EPA Regions) is responsible for maintaining current
procedures to identify, complete review, approve and
disapprove? as appropriate, any newly identified local
pretreatment programs consistent with the regulations
and national policy and guidance. The procedures
should address the modification of POTW permits to:
1) incorporate a schedule for local program development
- where a POTW is newly identified as needing a pretreat-
ment program; and 2) incorporate approved local programs
and related conditions, including reporting.
™= A _cu r_r_e n_t__s_trategy and procgdures for _oVJBry;i.ewi_nc|
pretreatment programs; The agency administering the
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_ 9 _
-pretreatment program is responsible for evaluating the
adequacies of the program as approved and the effective-
ness o£ implementation. The administering agency
should have a current overview strategy with procedures
for: 1) audits of each local program once in 5 years
(20 percent per year), including evaluation of local
limits to assure that local limits are revised as
needed to protect treatment works, prevent interference
with sludge disposal, and protect receiving water
quality (including toxic organicsf metals and conventional
pollutants)i 2} assessing the adequacy of industrial
waste surveysr local legal authorities (including
interjurisdictional agreements), local implementation
mechanisms (e.g., permits or contracts) and compliance
monitoring procedures and practices; and 3) ensuring
that control authorities are conducting timely and
appropriate reviews of required periodic reports. The
administering agency's overview procedures should
include provisions for reviewing POTW reports, con-
ducting inspections, and conducting periodic audits of
control authorities,
A current strategy3 and procedures for direct implementa-
tion where neede_d; The agency administering the pretreat-
ment program should have a current strategy and imple-
mentation procedures for situations where it directly
implements pretreatment requirements, where there are
3. The various pretreatment strategies referred to in this suplement
may be combined into one overall pretreatment strategy.
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- 10
.categorical industries discharging to POTWs that arc
not required to develop local pretreatment programs.
In those few States where the State is approved to
implement pretreatment and regulates all of the affected
dischargers, the State should have a plan for permitting
indirect dischargers, establishing local limits, main-
taining an adequate inventory, and otherwise assuring
effective pretreatment.
— Review/audit procedures that are effective in over-viewing
States that are directly implementing part or all of
the pretreatment program: Where States regulate all or
some of the affected indirect dischargers, the Region
will evaluate the State's performance in permitting
indirect dischargers, establishing local limits, main-
taining an adequate inventory, reviewing and responding
to periodic IU reports, and otherwise assuring effective
pretreatment.
^
II. Compliance Monitoring
The EPA Regions and NPDES States must maintain records and
develop procedures for conducting accurate and reliable review and
evaluation of permittee self-monitoring reports, as well as inspec-
tion o£ permittees. The administering agency should assume primary
responsibility for these activities. These activities are essential
to maintaining the overall integrity of the NPDES permit program
and for identifying instances of noncompliance so that the adminis-
tering agency can initiate appropriate and timely action as needed -.
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- ]1 -
The administering agency should also have an established compliance
monitoring program that incorporates the requirements of the NPDES
regulations, as well as the appropriate principles and supporting
attachments of the En force m e n t Ma nag em ent System (EMS).
Evaluation and oversight of compliance monitoring programs
should be based on the following criteria:
* Timely receipt and review of accurate and complete self-;
monitoring reports, and maintenance of complete and accurate
records as evidenced by the existence and use of:
— Established procedures and time frames for review of
DMRs, and maintenance of complete and accurate data;
The administering agency should receive and review all
Discharge Monitoring Reports (DMRs) and POTW pretreatment
program implementation reports for accuracy and complete-
ness, and should assure that permittees are complying
with their permit requirements. The administering
agency should enter all the Water Enforcement National
Data Base (WENDB) data for major permittees into PCS in
a timely manner; DMR data should be entered within 30
days of receipt of the DMR. The administering agency
• should also enter less data into PCS for minor permittees
(see PCS Policy Statement for these requirements).
Where a State is not a regular user of PCS, it should
enter the data into its own automated system and transfer
the data into PCS, or it should provide the data to the
Region in a form that facilitates EPA's entry into PCS
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- 12
^(e.g./ on preprinted DMR forms, conversion tape, etc.).
Response to nonreeeipt or unacceptable should be
consistent with the time frames in the regulation and
the EMS; failure to submit or unacceptable DMRs within
30 days of the required date are instances of significant
noncorapliance for major permittees.
— Data that are accurate, complete and_upT-to-date: The
Region should verify that each NPDES State is exercising
its responsibilities properly through routine reviews
o£ a random sample of DMRs and PCS entries during
periodic audits of the State program.
Maintenance of _a_ report ing__sys_t_em that contains _accura_t_ef
up-to-dat_e_f accessible information on current compliance
_s_t_atus ;
-- Established procedures _a_nd time frames for submit tal of
QNCRs and maintenance of data; The administering agency
must prepare and submit its Quarterly Noncorapliance
Reports (QNCRs) consistent with the requirements and
time frames in the NPDES regulation and national guidance.
To the extent PCS allows, the administering agency
should prepare the QNCR automatically by using DMR data
and other data that are entered into PCS,
a nd flat a stenStha tare acu rate , cmp lte STC
up*-to-date : The Region is responsible for verifying
the accuracy and completeness of both the QNCRs and the
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- 13 -
data in PCS. Where a State is not a regular user of
the national data system (PCS), the Region should
actively encourage full participation at the earliest
possible date, including giving priority in assistance
and program grant funding to States that are direct
users of PCS,
Timely conduct of appropriate and effective compliance
inspections as evidenced by the existence and use of;
-- Established procedures within the annual plan for
conducting compliance inspections; The administering
agency should have established procedures for conducting
routine and special inspections as part of its annual
Compliance Inspection Plan. The plan and procedures
should be consistent with the EPA Compliance Inspection
Manual and the NPDES Compliance Inspection Strategy
and Guidance, and should contain clear criteria for
selecting candidates for the appropriate mix of routine
and special compliance inspections. The procedures
should also outline the basic requirements and time
frames for completing reports on inspection findings
and for entering the data into PCS wherever possible.
Where the State is not a regular user of PCS, it should
enter the data into its own automated system and transfer
the data into PCSr or it should provide the data to the
Region in a form that facilitates EPA's entry into PCS
(e.g., EPA Form 3560-3 or State equivalent form that
contains the same data elements as Form 3560-3). The
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- 1.
Region and State should agree in advance to establish
quarterly a list of facilities that are to be inspected
(including joint and independent EPA and State inspec-
tions), and to assess the status of the annual plan at
established intervals throughout the year. The Region
should also agree to provide prior notice to the State
before conducting joint or independent inspections, and
to supply the State with at least semi-annual reports
of its findings (mid-year and end-of-year); the State
should be apprised of major problems as soon as they
are discovered.
Inspections that are conducted in an ef.fect_i_v_e_ma_n_ner_;
The administering agency is responsible for conducting
sampling and analysis in the prescribed manner, completing
the required reports on findings within established
time frames, and for ensuring the entry of the data
into PCS* The Region should participate in an appro-
priate number of joint inspections with the State and
maintain an independent inspections program in order
to carry out its enforcement and overview responsibili-
ties, and should conduct periodic random audits of
inspection reports and case files. The administering
agency is also responsible for taking proper action in
cases where permittees fail to respond to DMR Quality
Assurance (QA) requirements, and for initiating appro-
priate follow-up to DMR QA test results, NPDES States
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- 15 -
should specifically identify the need for the Region's
assistance or support from EPA contractors, as well as
the type and level of assistance required.
° Effective integration of pretreatment compliance
monitoring activities into the established NPDES program
as evidenced by the existenceand use of;
— Established procedures and time frames for effective
monitoring of local pretreatment programs*
Consistent with the Pretreatment Compliance Monitor-
and Enforcement Guidance (to be issued in late Spring
1986), the administering agency should have procedures
and time frames fori reviewing monitoring reports,
including annual reports submitted by POTWs and
semi-annual reports submitted by categorical users
in areas without local programs; establishing and
maintaining a complete inventory of POTWs with
pretreatment programs} and conducting, as part of
regular NPDES inspections, annual pretreatment
inspections of POTWs with approved programs, includ-
ing a sample of IDs in the PQTW, to the extent that
resources allow. The administering agency should
also have a plan for completing an inventory of all
categorical users and significant industrial users
where there is no approved local program, and for
inspecting those industrial users to the extent
resources allow.
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"-- Routxne monitori,ngthatis conducted in^_a_n effective
mgjnjnejr; The administering agency is responsible for
monitoring local pretreatment programs consistent
with the established procedures and time frames in
the Pretreatment Compliance Monitoring and Enforce-
ment Guidance* Regions will pay special attention
to monitoring the six State-run local pretreat-
ment programs.
III. Enforcement Response
The CWA ($309) requires EPA or NPDES States to respond to
NPDES permit violations by initiating the appropriate enforcement
action(s); the administering agency should assume primary responsi-
bility for these activities. Enforcement response involves a
series of actions, starting with the initial reaction to the
identification of a violation and ending with the discharger's
return to full compliance and close-out of the action.
NPDES approved States should have compliance and enf or cement •»--
procedures that are consistent with the Enforcement Management
System (EMS). Regions should follow the procedures established i.h
that system. These procedures include screening and assessing the
significance of the initial violation, translating compliance
information into the appropriate enforcement response in a timely
manner, and entering instances of noncompliance into the permittee's
permanent record.
Evaluation and oversight of enforcement programs should be
based on the following criteria:
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- 17 -
Timely_evaluation and appropriate initial response to
identified violations as evidenced by the existence^ and
t
use of ;
-- Established pre-enforcement procedures that set forth
criteria for evaluation and appropriate initial
responses to identified violations; The administering
agency should have current pre-enforcement procedures
that are consistent with the principles in the EMS.
The procedures should include: a violations review
process and criteria for screening DMRs to determine
the significance of the violation; procedures and time
frames for applying appropriate initial response
options to identified violations; and procedures and
time frames for maintaining a chronological summary
of all violations.
— Enforcement rejsponses that are timely and appropriate;
The administering agency should: screen all DMRs from
i
permittees to determine the level and frequency of any
violation, and specifically evaluate instances of
non-compliance by major permittees and P.L. 92-500
minor permittees^ within an average of 30 days from
the identification of a violation; determine the
appropriate response; and document any action taken/
not taken {including the technical reason). The date
of identification of the violation is the point at
not taken (including the technical reason). The date
4. Other minor permittees should be evaluated as resources permit
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•• of identification of the violation is the point at
which the organization responsible for compliance/
enforcement learns of the violation; an appropriate
response is one that results in the violator returning
to compliance as expeditiously as possible. The
Region should verify the timeliness and appropriateness
of a State's DMR evaluation and its initial responses
through periodic audits.
Timely and appropriate enforcement response, follow-up
and escalation until compliance is obtained as evidenced
by the the existence and use of:
— Established enfjorcement response procedures that are
appropriate and timely; The administering agency
should have current enforcement response procedures
that are consistent with the EMS, as well as an
up-to-date strategy for addressing instances of
significant noncompliance consistent with national and
State priorities. The procedures should set forth: an
analytical process for determining the appropriate
level of action for specific categories of violation;
procedures for preparing and maintaining accurate and
complete documentation that can be used in future
formal enforcement actions; and time frames for
escalating enforcement responses where the noncompliance
has not been resolved. The administering agency
should also have an analytical process for assessing
penalties or equivalent sanctions in appropriate cases.
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- 19 -
Finallyf the administering agency should have a procedure
for addressing all MCP municipalities under the NMP
that miss interim milestones in their enforceable
schedules to achieve compliance by the July I, 1988,
statutory deadline.
— Enforcement actions (Administrative Orders and judicial
actions) that are initiated in a timely fashion jmd
contain clear and enf orceabJL_e _reguirements ; The adminis-
tering agency should be able to demonstrate that its
enforcement procedures result in: appropriate initial
and follow-up enforcement actions that are applied in
a uniform, consistent and timely manner? formal enforce-
ment actions (as defined by State agreements) that
clearly define what the permittee is expected to do by
a reasonable date certain; an assessment of a civil
penalty (or equivalent sanction) as part of all civil
judicial referrals, when appropriate, based on a consid-
eration of esta_bl_i_3_h_e_d_f_a_ctors^ and in an amount appro-
For States, the determination of a penalty amount (or equivalent
sanction) should be based on factors such as the seriousness of
the violation(s), any history of noncompliance, any good faith
effort to comply with applicable requirements, the amount of
economic benefit resulting from the violation, the economic
impact .of the penalty on the violatort and such other factors
as justice may require? the seriousness of a set of violations
includes consideration of the harm or risk of harm posed to
health or the environment by the violations, the amount by which
effluent limits were exceeded, the violator's efforts to correct
the problem, and the duration of the violations. Regions are
expected to follow the CWA Penalty Policy in calculating penal-
ties for EPA cases.
For States, examples of sanctions include: bans on new sewer
connections, bans on sewer usage, facility closure, and permit
revocation or suspension. In defining the appropriate use of
civil sanctions, the Region and State should consider whether
the economic impact of the sanction is comparable to a cash
penalty? specific actions qualifying as equivalent sanctions
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20 -
priate to the violation; and compilation of complete '
and accurate permanent records that can be used in
future formal enforcement actions. In the case of
major permittees, by the time a permittee is identified
on the QNCR and determined to be in significant noncom-
pliance based on the definition provided in Guidance,
the administering agency is expected to have already
initiated enforcement action to achieve compliance.
Prior to a permittee appearing on the subsequent QNCR
for the same instance of significant noncompliance/ the
permittee should either be in compliance or the adminis-
tering agency should have taken formal enforcement
action (generally within 60 days of the first QNCR) to ,
achieve final compliance.^ In the rare circumstances
where formal enforcement action is not taken, the
administering agency is expected to have a written
record that clearly justifies why the alternative
action (i.e. informal enforcement action or permit
modification) was more appropriate. Where facilities
miss interim milestones in their MCP enforceable
schedules, the administering agency should maintain
should be defined in State/EPA enforcement agreements. State/EPA
agreeements should also be used to deal with those special
circumstances in which the only formal enforcement action the
State can take is a judicial action*
A formal enforcement action is defined as one that requires
actions to achieve compliance, specifies a timetable, contains
consequences for noncompliance that are independently enforce-
able without having to prove the original violation, and subjects
the person to adverse legal consequences for noncompliance (see
Policy Framework of, June 24? 1984, as amended)* Specific actions
qualifying as appropriate will be defined in State/EPA enforcement
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21 -
a record showing the action taken/not taken, including
the rationale. Audits will be used to verify the
timeliness and appropriateness of an administering
agency's enforcement actions, as well as its consistent
application of penalties/sanctions and consistent
response to violations of NMP schedules.
° Appropriate involvement of Regional Counsel/Stabe
Attorneys General (or othej:_appropriate^ government
legal staff) to ensure legal support for national
enforcement priorities as evidenced by the existence
and use of;
—' Established jpjrocedures for routine coordination
and notification of proposed enforcement actionsr
as^well as general time framesfrom case referral
to filing; The administering agency is responsible
for ensuring that the Regional Counsel(RC)/Attorney
General(AG) is consulted on the annual judicial
enforcement commitments the administering agency is
making, and for establishing workable internal
procedures for notifying and consulting with the
RC/AG on individual cases arising throughout the
year. The Region and State should reach a common
understanding about the general timeframes from case
referral to filing.
— Coord_ina_tion _that results in timely and appropriate
action by the RC/AGt The administering agency should
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- 22
be able to demonstrate that its internal coordination
procedures with the RC/AG (or other appropriate govern-
ment legal staff) result ins timely review of initial
referral packagesf satisfactory settlement of cases,
as appropriate,* timely filing and prosecution of
well-prepared referral casesj and prompt action
where dischargers violate consent decrees. As a
general goal, EPA and State cases should proceed
from referral to filing in 60 - 90 days.
Effective integration of pretreatment enforcement
activities into the establ is he d KPDE S p _r_gg ram__a_s_ _ e v idenceti.
by the existence and use of;
— Established enforcement response procedures that are
appropriate and timely; The administering agency
should have enforcement response procedures and
timeframes consistent with the Pretreatment Compliance
Monitoring and Enforcement Guidance, which incorporates
**
the principles of EMS. These procedures should
include initiating appropriate enforcement action
where POTWss fail to submit approvable pretreatment
programs; have violations of NPDBS effluent limita-
tions; fail to implement approved pretreatment
programs; or fail to submit or submit delinquent
annual and other reports. The administering agency
should also have procedures for evaluating whether
POTWs are initiating appropriate enforcement responses
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_ 23 -
to violations by IDs. Where POTWs are not the
primary control authorities, administering agencies
are directly responsible for having these procedures
in place for categorical and non-categorical industrial
users.
Enforcement actions that are initiatedI in a timely
manner; The administering agency is expected to
initiate enforcement action against permittees with
pretreatment programs that are in significant noncom-
pliance, which applies to: failure to meet milestones
in enforceable schedules for submitting required
local pretreatment programsj violations of effluent
limits? and delinquent PDTW pretreatment reports.
Enforcement actions against these POTWs should be
taken consistent with the criteria and timeframes
for the NPDES program. Administering agencies
should also initiate enforcement actions against
%
POTWs for failure to adequately implement the
pretreatment program or enforce against their lUs.
Administering agencies should initiate IU enforce-
ment actions where necessary, generally in conjunction
with enforcement against the responsible POTW that
is failing to enforce or as part of an overall
strategy to bolster a local program. Administering
agencies should ensure that POTWs provider at least
annually, for public notification of significant
violations in the largest daily newspaper published
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24 -
in the municipality in which the POTW is located.
Also, where POTWs are not the primary control author-
ities, administering agencies should initiate appro-
priate enforcement actions against industrial users
who are violating categorical standards in accordance
with their enforcement response criteria and procedures.
* Timely and appropriate initial .re_sgon_se_ and enforcement
follow-upby EPA Regions to violations by Federal
facilities as evidenced by the existejrK;e_and use of:
'— Established procedures _that inelude_the appropriate
use of the Compliance agreement process \n l_ieu_ of
administrative ordersi The EPA Regions should use
the compliance agreement process in lieu of an
administrative order as the initial approach to
resolving noncorapliance with NPDES permit conditions
by a Federal facility."? Where such an approach does
not result in expeditious compliance, the Region
should have procedures for escalating the response,
which may include issuance of a Federal administrative
order, and, thereafter, act according to the document;
"Resolution of Compliance Problems at Federal
Facilities* and the Agency's Federal Facility
Compliance Strategy.8 For violations constituting
significant noncompliance, the timely and appropriate
7. A Federal facilities compliance agreement counts as a formal
enforcement action in the SPMS system.
8. An Agency Workgroup has made final recommendations on an
Agency Federal Facility Compliance Strategy, which will serve
as the basis for revising the Yellow Book.
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- 25 -
criteria for initiating action apply. Where a State
has been approved" to administer the Federal facility
portion of the NPDES program, the basic enforcement
responsibility rests with the State; these States
should have their own established terms and procedures
for dealing with noncompliance by Federal facilities,
and should use their authorities in the same manner
and to the same extent as any nongovernmental entity
(CWA §313(a}},
-- Compliance agreements that are concluded in _a timely
manner and result in expeditious resolution of the
noncompliance; The Region should be able to demon-
strate that it uses the established compliance
agreement process in a manner that resolves non-
compliance expeditiously. Where agreement cannot be
reached in a timely manner or does not result in
expeditious compliance, the Region should be able to
demonstrate that it escalates its response in a
timely and effective manner consistent with the
Agency's Federal Facility Compliance Strategy.
State response to instances of noncompliance by
Federal facilities should be evaluated based on the
terms and procedures set out in the State/EPA enforce-
ment agreement.
OVERALL PROGRAM AUTHORITIES AND MANAGEMENT
Under SS402(c)(2) and 304(i)(2) of the CWA, EPA has the obliga-
tion to ensure that approved NPDES State programs continue to meet
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_ 26 -
minimum statutory and regulatory provisions in terms of legal
authority, procedures, funding, resources and personnel qualifica-
tions. In additicmr EPA has a responsibility to examine State
NPDES programs periodically to assess their demonstrated progress
in carrying out the basic goals and objectives of the Clean Water
Act and in achieving results.
Evaluation and oversight for overall program management should
be based on the following criteria;
9 Adequate statutory and regulatory .authg_r_i_ty to administer •
the Federal NPDES program; The Region should ensure that,
in accordance with the CWA and the NPDES regulations (40
C.P.R. $123.62(e))« approved State programs are revised as
necessary to reflect changes to Federal statutory and
regulatory requirements, and that modifications to approved
State programs conform to the NPDES regulations. Any
modifications to approved programs that are needed as a
result of changes to Federal legal requirements must be
completed within one year of promulgation of the changed
Federal requirements when changes to State regulation(s)
are needed and within two years when changes to State
statute(s) are needed* In addition, any proposed revisions
to any State legal authorities must be submitted to EPA
for review and approval.
The Region is responsible for assessing each approved
State's statutory and regulatory authority, as well as the
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- 27 -
adequacy of its funding and staff qualifications to admin-
ister the NPDES program, and for initiating appropriate
and timely follow-up action as needed when deficiencies
are identified. In order to ensure the required degree
of Federal/State program consistency, the Region should
complete review of the statutory and regulatory authority
by the end of FY 198? for all NPDES State programs when-
ever major State or Federal statutory or regulatory changes
have been enacted. To the extent possible. Regions will
conduct these State reviews after the State's self-evalua-
tion of its legal authorities has been received; however,
receipt of the State's self-evaluation is not a prerequisite
to EPA review of legal authorities where a State's legal
authority has already been identified as deficient.
Regions should promptly notify the State of the need for
corrective action. The State should correct any deficiencies
identified in its self analysis or identified by EPA. In
addition, the Regions should consider program withdrawal
proceedings or sanctions provided for by the "Policy on
Performance-Based Assistance" in appropriate cases where the
NPDES State has failed to request authorization for the
pretreatment program by FY 1987. Regions will also continue
to work with other States to promote full NPDES program
approval.
Demonstrated ability to se^t program priorities and to
carry out the NPDES program in an_effective manner;
In addition to evaluating the administering agency's
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- 28 -
performance in carrying out its operational responsibilities
as set forth earlier in this guidance, the agency's overall
effectiveness should be assessed based on its demonstrated
progress towards achieving the goals and objectives of the
CWA. Listed below are four goals, which, if achieved/
would provide sound evidence that the administering agency
is managing the operational aspects of the NPDES program
with positive results:
— Pgrngns^trated abi 1 i.t_y consistently to issue time 1 y ,
high-quality permits; The administering agency's
permit program should be assessed based on its perfor-
mance in issuing, reissuing and modifying major permits
as they expire, reducing and eliminating any existing
backlogs of minor permits consistent with national
priorities and time frames, and in avoiding the develop-
ment of new backlogs of expired or unissued permits,
especially major permits. As general goals, permit
*i*-
programs should strive to assure that: action on major
permits occurs promptly in the last 6 months of an
expiring permit term; all point sources suspected of
being toxic are properly screened and evaluated; all
permits reflect BAT/BCT based on promulgated guidelines
or BPJ, or more stringent water quality-based limits, as
appropriate; all permits are written to enhance their
enforceability ; and/or all water quality problems
(including toxics problems} attributable to point
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- 29 -
^point source dischargers are adequately addressed by
requirements in permits which? if met, would eliminate
the problems. In assessing whether these goals have
been achieved, it may be appropriate to review a State's
Continuing Planning Process and other procedures to
assure proper coordination among water quality standards,
wasteload allocation, and permit issuance activities.
Demonstrated ability to consistently establish and
oversee local pretreatment programs and to fully and
effectively implement all pretreatroent authorities
reserved to the State; The administering agency's
effectiveness should be assessed in terras of its perfor-
mance in establishing all required local pretreatment
programs, overseeing implementation of these local
programs following approval, and, where appropriate,
directly implementing the program, including permit
issuance or equivalent control for industrial users,
establishment of local limits, and appropriate compliance
monitoring and enforcement activities. The overall
adequacy of local programs and pretreatment-related
conditions in municipal permits should be evaluated,
including an on-site audit, no later than one year
after local program approval and at the time of permit
reissuance thereafter; review of reports; conduct of
inspections; and other activities as necessary. Where
an NPDES State does not yet have the authority to
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30 -
-administer the pretreatment program, the State should
be evaluated based on its performance of those activities
for which it has agreed to assume a responsibility
prior to program approval.
Demonstrated ability to initiate appropriate and timely
enforcement actions against noncompliers; The adminis-
tering agency's enforcement program should be assessed
based on its performance in taking appropriate and
timely enforcement responses, especially against permit-
tees that are in significant noncompliance and against
municipalities that are not in compliance with the
statutory requirements of the CWA consistent with the
National Municipal Policy (NMP). As a general goal,
the administering agency should strive to take appropriate
formal enforcement responses against 100 percent of its
significant noncompliers before they appear on two
consecutive QNCRs for the same violation (generally
within 60 days of th© first QNCR with identified SNC
violations) if the permittee has not returned to compliance
Administering agencies will continue to place all
affected noncomplying municipal dischargers on enforce-
able schedules in accordance with the National Municipal
Policy and Guidance* and enforce these schedules
vigorously, including documentation of action taken/
not taken where POTHs miss interim milestones in their
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_ 31 _
enforceable schedules. All other instances of noncom-
pliance should be addressed consistent with the procedures
and time frames in the administering agency's EMS.
— Demonstrated progress in achieving high or improving
rates of continuing compliancei The administering
agency's compliance and enforcement efforts should be
assessed based on its historical compliance trends in
terras of the percentage of permittees in significant
noncompliance. Annual goals should be set on a case- -
by-case basis, and should be based on the administering
agency's current compliance rate plus a percentage
improvement. Where the administering agency is below
the goal, it should develop an achievable plan for
making progress towards the goal over a reasonable
period of time.
PROCESS FOR CONDUCTING OVERSIGHT OF STATE NPDES PROGRAMS
Based upon the general'criteria outlined in this document, as
well as the specific annual goals and priorities in the FY 1987
Agency Operating Guidance, the Regions and States should negotiate
individual agreements that clearly define performance expectations
for the NPDES program* as well as the respective roles and responsi-
bilities of the Region and the State in administering the NPDES
program. These may be separate agreements between the Region and
the State, and/or part of the overall S106 work program or State/EPA
agreement processes. In either case, the agreement should reflect
the principles of the "Policy on Performance-Based Assistance"
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- 32 -
issued on May 31, 1985 by the Administrator, and the Office of
Water Funding Policy in the FY 1987 Agency Operating Guidance.
The agreements should contain requirements for key outputs,
which the Region should review periodically based on the specific
arrangements contained in the agreements* The Region should supply
the State with written reports of its review findings, and should
make specific recommendations and suggestions for program improve-
ments; the Region should discuss major problems with the State as
soon as they are discovered. In addition, States should have the
opportunity to evaluate the Region's performance in providing
assistance and meeting commitments. These evaluations can coincide
with regular Regional evaluations of States, and should be circulated
to program offices as well.
The Region should tailor the level and the frequency of its
review to the State's overall performance in each specific program
area. States that have consistently demonstrated their ability to
adhere to or to exceed national program goals and priorities and to
meet or to exceed national performance expectations may be reviewed
less frequently and/or less extensively,' other States may receive
more frequent and/or more detailed reviews by the Region. Where a
State exhibits continued poor performance, the Region should make
recommendations for changes and should take other action(s) as
appropriate.^ The criteria and goals in the earlier sections of
this guidance provide the Region with a general baseline for deter-
mining the proper level and frequency of oversight of a State NPDES
program.
9. See the "Policy Framework" as amended.
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- 33 -
The Region should conduct a comprehensive assessment of the
operational elements of each State HPDES program at least once a
year prior to the Office of Water mid-year evaluation. This review
may be a summary of the results of the periodic program evaluations
that were performed during the year, and should provide the State
with an opportunity to explain its activities and progress in areas
of its NPDES program that are not directly related to national or
Regional goals and priorities. At the conclusion of the annual
review, the Region should supply the State with a written report
that outlines the State's accomplishments and areas where improvement
is needed, as well as any agreements that were reached on resolving
problems that were identified during the review,
PROCESS FOR NOTIFICATION/CONSULTATION AND CRITERIA FOR DIRECT
FEDERAL ENFORCEMENT
Under State delegation, EPA has the right to initiate an
enforcement action in a State. The Region and State should have a
process for notice and consultation with the State prior to initiating
direct EPA enforcement action. The process should include a discus-
sion between the Region and State with respect to the circumstances
surrounding the specific noncompliance situation and the appropriate
enforcement response. Such procedures can be used to handle Federal
facilities .violations where the State might need EPA's assistance
in resolving the noncorapliance. Attachment A is a generic outline
for a process that Regions and States might use for consulting and
coordinating State/EPA enforcement activities, including deter-
mining when to initiate Federal enforcement action.
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- 34 -
Using this advance consultation process, there will often be
cases where the Region and the State reach mutual agreement that
Federal action xs more appropriate or that the State faces an
unusually large caseload. In FY 1987» for example, the Regions and
States can use this process to discuss the anticipated NMP workload,
and to identify and reach mutual agreement on cases where the State
may need EPA assistance.
EPA may also initiate direct Federal enforcement action where
the Region determines that Federal action is necessary because the .
case meets any of the following criteria! legal precedent under
national environmental law(s), unresolved interstate issue(s), or
violation(s) of an EPA order or consent decree; «here a Region
determines a State has failed to initiates timely and appropriate
formal enforcement action (as prescribed earlier in this guidance);
and/or where a Region determines that a State has obtained a grossly
deficient penalty or sanction under the circumstances of a given
case.
*&
In all instances, the Region will adhere to the established
process for advance notice and consultation with the State. The
discussion should include the option of the Region issuing a Notice
of Violation (NOV) to the permittee and the State indicating its
intent to institute formal enforcement action in 30 days if the
State fails to properly enforce and the source fails to return to
compliance, or the option of foregoing the NOV process in favor of
immediate EPA action against the permittee. This should be done
in accordance with State delegation agreements and Memoranda of
Understanding *
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ATTACHMENT A
MODEL
SIGNIFICANT NONCOMPLIANCE ACTION PROGRAM
(SNAP)
MEMORANDUM OF UNDERSTANDING
PURPOSE:
SCOPE:
PROCESS,
SCHEDULING
AND LOCATION:
PREPARATION:
To provide for routine consultation and coordination
of EPA/State enforcement activities, and for EPA
overs ight
programs.
of the State's compliance and enforcement
The QNCR, furnished by the NPDES State in accordance
with Federal regulations, will serve as one of the
basic mechanisms for coordinating and overseeing
activites involving major permittees. Supplementary
compliance information on P.L. 92-500 minor permittees
will t>e submitted in accordance with written policy
and guidance from EPA Headquarters (SPMS and OWEG).
At least once each quarter, EPA and the State will
discuss the status of all permittees that appear on
the QNCR or supplementary submittal. The discussion
should take the form of a meeting wherever possible.
[Note: a conference call may be substituted where
distances are prohibitive). The meeting will take
place on the work day closest to exactly four weeks
prior to the stipulated State submission date for
the next QNCR. The location of the meeting will
alternate between EPA and a State office.
EPA Regional staff will review the State QNCR, which
must be prepared and submitted in accordance with
Federal Regulations and written policy guidance from
EPA Headquarters. EPA Regional staff will also
review supplementary compliance information on minor
permittees, which should be prepared and submitted
in accordance with EPA guidance and policy.
Six weeks prior
transmit to the
to the meeting, EPA will formally
State its detailed comments regarding
items that appeared on the State's preceding QNCR,
EPA's comments should include: the permittee(s) in
question; the State action(s) in question? and the
recommended action to be taken by the State and/or EPA,
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-2-
P RE PAR AT I ON i-
(cont,)
Three weeks prior to the meeting, the State will
furnish a response to EPA's list of concerns,
including the State's action to obtain the
permittee's compliance,
Two weeks prior to the meeting* the lead Individuals
from EPA and the State will agree on the list of
permittees that will be discussed. The list will
include those permittees from the preceding step
that EPA wants to discuss at greater length, as
well as cases where the State is seeking Federal
intervention.
At least one week prior to the meeting, E»A will
prepare the agenda and forward it to the State's
lead individual.
GROUND ROLES:
It is understood that no permittee should remain
in noncompliance for the same violation on two
consecutive QNCRs without! 1) being returned to
compliancei or 2) taking formal enforcement action
directed at obtaining sustained compliance.
Discussion
constitute
discussion
of
a permittee's noncorapliance does not
an action to cause compliance. The
must result in a conclusive, mutual
understanding by EPA and the 'State of th» formal
actions that will be taken by a date certain to
bring about compliance and/or to penalize the
recalcitrant permittee.
Prior to the meeting, all permittees that appear on
the QNCR will be addressed In the State's own
compliance strategy/tracking system through the
following procedure or one similar to it: %
— The State must hold preliminary raeeting(s) with
its field offices (if any) to define, clearly
and concisely, the State's strategy for achieving
compliance on a case-by-case basis. The strategy
will include a description of the individual
permittee, the nature of the violation, and the
State's plan for handling each violation. It
will be forwarded to EPA,
— During the meetlngCs) , ample time must be allotted
for a Cull, constructive discussion and disposi-
tion of all agenda items.
As a result of the discussion, the
adjust the compliance strategies,
State roay
Any roodifica
tions will require consultation with the State's
field offices (if any).
will forward the amended
In such cases, the State
strategies to EPA,.
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-3-
GROUND
RULES:
(cont)
PARTICIPANTS:
MINUTESs
The common goal of all parties is to cause permittees
to achieve prompt and sustained compliance. There
may be cases where it Is impossible for EPA to agree
with the State's actions to achieve this goal. In
cases where agreement cannot be reached, both EPA and
the State should avoid extended debate and should
clearly define the actions that each party intends
to take. Discussion should then move to the remaining
items on the agenda,
Where there are significant differences of opinion,
EPA and the State should present the divergent view-
points to their respective Directors immediately
following the meeting. The Directors will ultimately
decide the actions to be taken by their respective
Divisions and, as appropriate, will discuss with
each other the decisions.*
The lead participants will be the Chief/Director
from the appropriate Branches in the EPA and State
offices. It is essential that the same individual
participates in all four meetings held each year
because commitments are made at the meetings. Other
individuals may be asked to participate based upon
the specific issues to be discussed at the meeting,
(technical expertise, Construction Grants, etc.)t
EPA and State legal staff may also participate.
The exact participants will be determined when the
agenda is finalized.
The State will provide the minutes to the EPA lead
individual within two weeks after the meetings,
EPA must submit its detailed comments (if any)
within one weekr if no comments are submitted with-
in the allotted time, the minutes will be considered
final. The minutes will describe the actions that
EPA and/or the State expect to take, including
independent EPA action such as issuance of either
NOVs or AQs, For the sake of brevity, the minutes
can reference the submittals received prior to the
meeting.
Director
State Water Program Office
Director ^
Water Management Division,
U«S,EPA, Region
* Decisions should be escalated to the Division Directors as the
exception rather than the rule.
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GENERAL COUNSEL OPINION
DATED MAY 25, 1973
Permit Program Under Section 402
Federal Waier Pollution Control Act — Section 402 Permit Program —
Section 402 (b)(l)(c) allows Suw the authority to modify or terminate
permits under certain conditions — EPA may not ipprove any revision
in compliance schedule which would e*ien
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GENERAL COUNSEL OPINION DATED MAY 25, 1973
law defer the entire schedule of compliance, so as to postpone the deadline
for the application of best practicable control technology beyond July 1,
1977?
ANSWER
Section 301 (b){ 1 )(A) of the Federal Water Pollution Control Act requires
the achievement of effluent limitations by July 1, 1977, which require the
application of the best practicable control technology currently available. In
light of this clear statutory requirement, we do not believe that EPA could
approve any revision in a schedule of compliance which extended the date of
achievement of best practicable control technology beyond July 1, 1977.
QUESTION
Does the Act or section 124.72(b) permit a state to revise or modify a
schedule of compliance without public notice or the opportunity for a public
bearing?
ANSWER
Yes, in the limited circumstances set forth in §124.72(8). Section
402(b)(3) of the Act requires that a State permit program include authority
"to insure that the public, and any other State the waters of which may be
affected, receive notice of each application for a permit and to provide an
opportunity for public bearing before a ruling on each such application."
However, section 4Q2(b)(l)(C), which sets forth requirements concerning
termination or modification of permits, docs not require opportunity for a
public hearing before such termination or modification, In our view, then,
nothing in the Act would require public hearings in connection with modifi-
cations of permits by State agencies.
In this regard, EPA's guidelines are more stringent than the statute.
§ 124.72 (b) of the Guidelines limits the situations under which a permit may
be modified without a public hearing to those where events largely beyond
the control of the permittee require a change in the compliance schedule.
The Environmental Protection Agency will carefully review each such
modification to ensure that this authority is not misapplied.
WATER POLLUTION 160
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GENERA.L COUNSEL OPINION
DATED JUNE 4, 1973
Federal vs. State Water Permits
Federal Water Pollution Control Ac; — Section 501 — Federal versus
Suts Water Permits — NPDES permits issued b)1 EPA preempt non-
NPDES permits previously iisucd by States or which may be issued by
Stales in the future only where Slate program is Lri »ny way less
stringent than Federal program Section SO) of the FWPCA reserves to
the Stales the right 10 adopt or enforce standards regarding discharges
of poiluianu. or control or abatement thereof — Only exception to
Stales' reserved authority is where NPDES permit or other limitation
has been established under FWPCA, in which case State's requirement*
may noi be )ws stringent than Federal requirement — State may.
therefore, in the future issue discharge permits more iiringem thin EPA
permits issued under NPDES — Where EPA issues NPDES permits,
notice should be given to discharger thai ii must still comply with more
stringent requirements which a State may have adopted or miy choose
to adopt.
We have received several inquiries concerning the degree of preemption of
NPDES permits issued by EPA over nori-NPDES permits which have
previously been issued by Slates or may be issued by States in the future.
The simple answer is that a preemption exists only where the State program
is in any way less stringent than the Federal program.
Section 501 of the Federal Water Pollution Control Act specifically
reserves to all States, political subdivisions thereof, or interstate agencies, the
right 10 adopt or enforce "any standard or limitation respecting discharges of
pollutants," or "any requirement respecting control or abatement of pollu-
tion. , . ." The only qualification to this express reservation of States' rights
applies when an effluent limitation or other requirement, including an
NPDES permit, has been established under the FWPCA. In any such case, a
State is prohibited under §510 from adopting or enforcing any requirement
less stringent than the Federal requirement.
The FWPCA., in view of Section 510. clearly does not prohibit a State
from issuing in the future discharge permits more stringent thar. permits
issued by EPA under the NPDES. Moreover, the issuance by EPA of an
NPDES discharge permit does not invalidate a more stringent permit previ-
ously issued by a State.
As a matter of policy, n is clear thai States should attempt \c- receive
approval of State NPDES permn programs in order to avoid the problems
presented by the operation of two permit systems within a State. This does
not, however, dimmish a State's legal authority to issue more stringent non-
NPDES permits.
This key point should be emphasized 10 industries and other dischargers
receiving NPDES permits. Accordingly, each NPDES permit which is issued
it; WATER POLLUTION
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GENERAL COUNSEL OPINION DATED JUNE 4, 1973
by EPA should be accompanied by a statement notifying the discharger thai
the NPDES permit which is being issued to him may well not create any
absolute right of discharge, even in accordance with its terms, A discharger
is not thereby relieved from responsibility from complying with any more
stringent requirements which a State may have adopted or choose to adopt.
The Federal Water Pollution Control Act is based upon the concept that
the primary responsibility for pollution control rests with the States, and we
must acknowledge the right of any State to establish even more stringent
controls on pollution than can be achieved by a national program.
WATER POLLUTION 164
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
75~-v- nr
KCV 2 5 ;;75
OFFICE OF ENFORCEMENT
To: Regional AdmirJ.stra.tors
Tram: Assistant Administrator for Enforcement
Subject: Scope of EPA Waiver of Review of Permits Proposed
by States with Approved KPDES Prog-rams
Several requests have been made for a restatement of EPA's
policies regarding EPA's v-aivar of its review of perzdts proposed
by States with approved National Pollutant Discharge Elimination
System (KPDES) programs undertaken pursuant to the Federal Water
Pollution Control Act, as amended (FWPCA).
The issue of the permissible scope of waivers usually arises
when a Ms no rand-NTT. of Understanding (MOD) is negotiated between a
Region and a State seeking to undertake administraticr, of an l^DES
program.
EPA' s policy has been, and continues to be, that there can be no
•waiver cf permit conditions for the following classes of discharges:
(1) Discharges into the territorial sea, the contiguous zone or
the oceans;
(2) Discharges cf tcatic pollutants in toJtic aaour.ts;
(3) Discharges which say affect the waters ef a State other
than the one fron which a discharge originates; and
(4) Major dischargers, except as provided below.
The Importance cf ensuring a •uniform, national approach to toacic
anc Interstate discharges is self-evident and Section 403 (b) provides
that no waivers may be made i" the case cf permits for discharges
into the territorial sea.
-------
Our policy jnajer dischargers is that no waivers shall be granted
(1) Discharges frcrs publicly-owned treatment works with a caily
average discharge exceeding 0.5 MGD;
(2} Disch&rgss of uncontasinated cooling water with a daily average
discharge exceeding' 1.0 MGD; and
(3) All other discharges with a daily average discharge exceeding
The tars "daily average" discharge means the total discharge during
a calendar month divided by the nxsaber of days in the saonth, that tha
facility or pxiblicly-owned treatment work is operated. This definition
is consistent with the concept of a "daily'average" discharge used In
H?D£S permits. Attached is suggested -language embodying the policies
outlined above.
of the discharge* on the Regional major discharger lists saay
be subject to waiver in aescrdance with the abev* criteria. Th* Eagions
-.my, in their discretion, waive review of pesnits for such, discharges,
*
In closing, our emphasis, now as in the past, is to nurture sound
federal-state relations and to move forward cooperatively towards
cleaning up this nation's water. Our policy regarding waivers will
v,e reviewed periodically as the N?OES progran natures. Your coaaaents
are invited.
Stanley W.
Attachment
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SUGGESTED LANGUAGE TOR MAXIMUM PERMISSIBLE
PERMIT REVIEW UTCDER APPROPRIATE CIRCUMSTANCES
V? z. i ve r P r o vj s i o n s
1. Except as hereafter expressly provided, the Regional Administrator
waives the right to comment on or object to the sufficiency of permit
applications, proposed draft permits and final adopted permits for
discharges or proposed discharges from: (1) publicly-owned treatment
works with a daily average discharge of 0.5 MGD or less; (2) other
discharges with a daily average discharge of 0.1 MGD or less; and
(3) discharges of uncontaminated cooling water with a daily average
discharge of 1.0 MGD or less, provided^ however, that the above listed
waivers shall not apply to any of the following discharges, regardless
of size: CD discharges to the territorial sea, waters of the
contiguous zone, or the oceans; (2) discharges which affect the waters
of any other State; or (3) discharges which contain toxic pollutants.
2. The foregoing does not include waiver of receipt of conplete copies
of N?DES applications, draft parrots, public notices of permit applications
(and any required fact sheets), notices of public hearings, and copies
of all final.NPDES permits issued. In addition, the foregoing does
not include a waiver of the obligation to transmit complete copies of
NPDES applications and of KPDES reporting forms to the national data
banX, nor the right to receive copies of notices to the [Department]
from any publicly-owned treatment works, as detailed in 40 C7R 124.45 (d)
and (e) .
3. The Regional Administrator reserves the right to terminate the fore-
going waiver, in whole or in part or with respect to any specific discharger,
at any time. Any such termination shall be accomplished by the Regional
Administrator, in writing, and a copy of such written termination shall
be delivered to the [Department].
4. The foregoing waiver shall not be construed to authorize the issuance
of permits which do not comply with applicable provisions of Federal or
State laws, rules, regulations, policies or guidelines, nor to relinquish
the right of the Regional Administrator to petition tr;e tDeparnaent] for
review of any action or inaction because of violation
State laws, rales, regulations, policies or guidelines.
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GENERAL COUNSEL OPINION
DATED JULY 18, 1973
Extent of Environmental Protection Agency Approval of State
Issued NPDES Permits
Federal Water Pollution Control Act — Section <02(b) — Extent of
Environmental Prelection Agency approval of Suie issued NPDES
permits — Under authority of Section 402(d)(2), where EPA object! to
issuance of particular permit by SIAIC ts being ouuide guidelines and
requirement! of Act, perrrut may not b-t issued — EPA's right of
disapproval exists even where State issues permit with no EPA objection.,
and EPA later disapproves of modification of such permit — Any
modification of *n NPDES permit by a Stale constitutes a reitsuance,
and is subject to review by Regional Administrator under Section 402{d)
— Guidelines must be construed to allow Regional Administrator to
disapprove issuance of permiu which violate the requirements of the
Act, including modified (i.e., reissued) permits.
This is in response to your memorandum, of May 31, in which you inquired
as 10 the extent of EPA's authority to object to the issuance of a permit by a
State after approval of the State's NPDES program under §402(b) of the
FWPCA. Your questions, and answers, follow.
QUESTION
Suppose a State issued a permit for which we didn't object under
permanent authority and the permittee appealed the issuance to an in*
dependent Board of Review with the power to modify the permit:
{]) If the board exercised its power and modified the permit without
sending the permit back 10 the State issuing agency, can the
Environmental Protection Agency object to its issuance?
(2) If the Board sent the permit back to the State agency for issuance
with the limits defined, can the Environmental Protection Agency
object to its issuance?
(3) The same as 1 and 2 above except that the Court of Appeals
takes the action rather than the Board.
ANSWER
Under §4Q2{d)(2), in any of the situations described above, the permit
may no: be issued by the State if the Environmental Protection Agency
objects 10 its issuance as being outside the guidelines and requirements of the
Act.
DISCUSSION
Section 402(d)(2) of the FWPCA provides thai "No permit shall issue
... if the Administrator within ninety days of the date of transm:ual of the
169 WATER POLLUTION
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GENERAL COUNSEL OPINION DATTD JULY 18, 1973
proposed permit by the State objects in writing to the issuance of such
permit as being outside the guidelines and requirements of ihis Act," The
clear intent of this provision is to ensure thai permits issued by the States
comply with the guidelines issued by EPA under §304 and other provisions,
and with the requirements of the Act. There would be no doubt that the
Administrator's objection would preclude issuance of a permit in any of the
three situations described in the question, were it not for the limitation of the
Adminiitrator's action to objection "within ninety days of the due of
trarismittal of the proposed permit by the Suit. . . -" This is language,'it may
be argued, prohibits the Administrator from exercising his power to veto
permit issuance except in the case where a State, before formally issuing a
permit, transmits a proposed permit to the Administrator for review.
This argument, however, ignores the inteni of the provisions. The apparent
purpose of the ninety-day limitation is to ensure that the Administrator takes
prompt action on permits submitted by States. To construe the term "pro-
posed permit" in the statue to prohibit veto by the Administrator of permits
altered by i review board or by a court, or by order of a board or court,
would frustrate the intent of §*02(d)(2) to ensure that permits comply with
"the guidelines and requirements of [the] Act,"
The reference to "proposed permit" in |402(d}{2) merely indicates that
the drafters anticipated a procedure whereby a proposed p«rmit would be
transmitted to the Administrator, the Administrator would review the permit
and decide whether or not to exercise his veto power, and the State would
then issue the permit. Indeed, in most eases, this is the procedure which will
be followed. There is no evidence, however, of any legislative inter,; that the
IWQ words "proposed permit" be read as g limitation on the Administrator's
authority, They may instead be construed to mean that no permit is final
until the Administrator has exercised his statutory review powers. Under this
reading of §402(d)(2), the permit must be said to be a "proposed permit" at
both stages in the procedure; before issuance, and, if modified by a board or
court of review, after such modification. Under this reading of the statute, a
State could not render the review provisions of §402{d)(2) inoperative by the
device of a bifurcated review procedure whereby power to modify a permit
(in effect, real control over permit issuance], reposes in a review board or a
court.
ANSWER
Any modification of an NPDES permit by a State constitutes & rcissuance,
and is subject to review by the Regional Administrator under §402('d) of the
Act, However the Administrator may by regulation waive his review of
various classes of permits or types of modifications.
WATER POLLUTION no
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GENERAL COUNSEL OPINION DATED JULY 18, 1973
DISCUSSION
§124.72 of ihe Sutc program guidelines sew forth two procedures for
modification, after issuance, of NPDES permits. Under §124.?2(b)t a
schedule of compliance in a permit may be modified or revised where good
and valid cause (such as an Act of God, strike, flood, materials shortage, or
other event over which the permittee has little or no control) exists for the
modification. Section I24.72(b) of the regulations specifies that all such
modifications must be reviewed by the Regional Administrator.
By contrast §124,72(a) provides a procedure where permits may be
"modified, suspended, or revoked" for "cause including, but not limited to
(1) violation of any terms or conditions of the permit; (2) obtaining a permit
by misrepresentation or failure 10 disclose fully all relevant facts: and (3) a
change in any condition that requires either a temporary or permanent
reduction or elimination of the permitted discharge," This procedure is bated
directly upon §4Q2(b)(l)(C) of the Act. The guidelines do not specify that
the Administrator would exercise review authority over such modification*.
However, the omission from the guidelines of the requirement for review by
the Regional Administrator is not dispositive. It is clear that any modifica-
tions, including those contemplated by §124.72(a), would amount to a
relssuance of the permit, requiring an opportunity for revie-w by ibe Regional
Administrator under §4Q2(d) of the Act. Any other construction of the
guidelines, or of §402(b){l)(C) of the Act, would defeat the purpose of
§402(d) to preclude the issuance of permits which are outside the guidelines
and requirements of the Act. If, for example, a. Slate were to issue a permit,
then to modify the permit "for cause" after the time period for objection to
the original permit under §402(d) had passed, in a manner that made ihe
permit violative of ihe guidelines and requirements of the Act, no reasonable
construction of the Act would preclude the Administrator from reviewing the
modifications under §402(d).
Under certain circumstances, such as various types of de minimi; modifi-
cations of issued permits, it may prove cumbersome in practice for the
Regional Administrator to review all modifications of issued permits. In that
event, when a Stale's NPDES program is approved, > waiver of our review
authority could be worked out for certain types of permit modifications.
171 WATER POLLUTION
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W/V
».
I c.U i i M » to c.ts v mwiNivitix i MI_ rnu i tu l IUiN
V WASHINGTON, 0,C. 20460
April 20, 1976
OFFICE of
TO:" ' Regional Administrators
' , Regional Enforcement Directors
SUBJECT: Policy Regarding EPA Review of NPDES Permits
Proposed to be Issued by States
. A"s the States have accepted delegations and started -
to issue a' substantial number of NPDES permits, it has*
become important to set forth the policy which will be •
'followed by EPA with regard to review. and approval of NPDES
permits proposed to be issued'by States to- which the 'NPDES
permit program has been delegated. The following policy. '
statement sets forth the Agency policy relating to the
scope of EPA review and the procedures to be followed".
by EPA in connection with such review. • .
** * •
o£ .......... Review • '•''•'.'
A basic principle underlying EPA review of State
p emits is that the. States have the responsibility for
making factual determinations. The fact that Congress
did not' provide for a hearing upon EPA review of a State
perr.it ' indicates that such review is to be conducted on
the basis of the record made by the State and that EPA
is- no~t to attempt to redet ermine facts determined by the
State! ' '••-..-
It is possible, however, that a State may fail to
follow EPA's applicable regulations 'or the applicable
provisions of the Federal Water Pollution Cer.trol Act
.Amendments, of 1972 (FWPCA) . Moreover, a State may act
arbitrarily in failing to assemble the required factual
record or' in making" capricious determinations that are ,
clearly contradicted" by the record before it. In such
cases, a permit would be "outside the guidelines and ,
requirements" of the FWPCA and EPA may clearly exercise
its right to object under §402 (c) of the Act.
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•2-
Procedures in Connection^ w_ith Review
As indicated above, in reviewing a State NPDES permit,
EPA.Regional Administrators are not in the position of
re'determir.ing the facts, but are instead assuring that the
State has applied the FWPCA correctly. Accordingly, EPA
is not required to accord to any party appearing before the
State a hearing or other opportunity fcr participation in
the review process. There is no bar to such an opportunity,
should a Regional Administrator in his discretion find that-
the views of. the parties concerning the applicable law,
guidelines or 'requirements would, be helpful.
Where EPA's review discloses'that the record before
ths State is inadequate to make the determinations required;
under the FMPCA or to support determinations made by the
State, an objection may be mace on such grounds. In such -
case, the Regional Administrator should" not attempt to
supplement the record, but rather should, return the record
to the State, which then is responsible for any further
procedures, possibly including public hearings, which ere.
necessary" to ensure a complete record".
Stanley ^. Leg
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 2W£0
1 8 7980 . '
n ~v o - 1
OFFICE Of EKFDRCDrfEKT
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 authorise 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. ThJs, the Agency has successfully argued that its review
cf State permits is not subject to judicial review and*does not
require preparation of environmental impact statements. See Save
the' Bay,' Inc v, EPA, 556 F.2d 12S2 (5th Cir. 1977); Mianus River
Preservation Committee v. EPA, 541 F.2d SSI (2d Cir. 1576);
Cnesapeake Bay Foundation v. Virci^nia. State Kater Control Bo. , 445
F. Sup?. 122 (E.D.-Va. 1978). Letters whicn 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 cf section 402(d) and 40
CFR. C123.23 should be closely followed. If the Region concludes
that the craft cr 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 perm:
and alternative provisions should be suggested.
: r, c e - section 4 C 2 ( c / , it should clearly sc s1
-------
The legal concerns expressed in this memorandum were first
brought to rsy attention by the Office of General Counsel, If you
have any questions about the legal implications of EPA review of
State-issued pennies, please contact Alan Eckert, Deputy Associate
General Counsel, at 755-0753 (FTS).
I have attached draft language which you night consider in
formulating responses to State draft permits. These fonts do not,
of course, cover all situations. In many instances, 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 abjection 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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DPLAFT COMMENT LANGUAGE
Dear Sirs :
In accordance with the Clean Water Act, 33 U.S.C. §§1251
et sec., and the State-EPA Memorandum of Agreement, I have
reviewed proposed permit No. submitted by your office,
and I have no objections to its issuance.
However/ I would like to offer the following comments:
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DRAFT OBJECTION L&NGOAGE
Dear Sirs :
In accordance with the Clean Water Act, 33 U.S.C. 5S1251
et seg. , and the State—EPA Memorandum of Agreement, I -have
reviewed proposed permit Ho. submitted oy your office.
I have concluded that under its present provisions, this permit
is outside the guidelines and requirements of the Act, and con-
sequently, pursuant to section 402{d)(2) of the Act and 40 CFE
S123.23, I -object to its issuance.
I have objected to the issuance of this perroit for the
following reasons; " "
******
In order to eliminate this objection the following
modifications to the permit should be made;
*****
rhese provisions would be contained in the p€ nr.it if issued bv EPA,
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC 2 4 1380
n-80-16
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT:
TO:
FROM:
Review of State NPDES Permits Written Prior
to State Program Revision
Regional Enforcement D
R. Sarah Compton
Deputy Assistant /Mimini'strator
for Water Enforcement (EN-335)
rectors
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, 19B1, which are not based on finally promulgated
best available technology (EAT) guidelines.
As discussed in the Revised NPDES Seccnd Round Permits
Policy (my memo to you of August 29, 1980), the issuance now
of long-term BAT permits based on best professional judatment
(3PJ) is appropriate in industries for whi-ch BAT guidelines
will net be promulgated by June 30, 1981. N'PDES States should
not be discouraged from issuing such permits in appropriate
circumstances. However, as required by the N'RDC 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
strinaent limitations will replace the BPJ permit limits.
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- 2 -
It to my attention that at least one NPDES State
las begun to issue long-term BAT BPJ permits which do not
contain reopener clauses. Its claimed justification is that
its currently approved program dots not require the
inclusion of reopener clauses. The requirement to include
reopener clauses in EPJ permits issued before June 30, 1981,
is aroong the NPDES permit conditions contained in the consoli-
dated regulations (40 C?R §122.62) and is applicable to State
KPDES programs. However, 40 CFR §123.13{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. Thusf 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 and1 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
htive the necessary statutory and regulatory authority to include
a reopentr clause in the NPDES permits they issue. Although they
may not currently be issuing permits with such clauses, nothing
in State law prevents them frort 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 SAT BPJ
permits should net 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
long-taru SAT BPJ permit without a reopener c'.xize, EPA cin
object to and veto that permit under the authority of either 40
CFR §123 . 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 S 123 -7(d) ( 1 1 ) ) j the latter allows^
objections to BPJ permits which fail to carry out the provisions
cf regulations issued undtr 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
he Agency,
All NPDES States should currently be in the process of
revising their programs to incorporate the requirements of the
consolidated regulations. wr.er. this process is completed the
need for the actions describee above will be obviated, anc States
will, as a rr.atter cf course, include recpeners in the permits
thev issue. Until such tirr.e, the overriding coal cf controlling
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•.oxic pollutant discharges ir.ust take precedence. Proposed State
\T 5?J permits should be reviewed, and any necessary action
_aken if they do not include reopener clauses. Please note also
that under $*1 22 . 64 ( a) ( 2 ) no penr.it written to expire after
June 30, 1981 r nsay be issued unless the discharger has submitted
the toxic pollutant discharge information required by §'22 . 53'( - )
(7)(ii). If I can be of any assistance in implementing or
furt-her explainiric this pel icy, please contact me (?T3 755-0440)
or Joel Elumstein (FTS 426-47S3) of mv staff.
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UNITED S~ATES ENVIRONMENTAL PROTECTION AGENCY
| WASHINGTON, D.C. 20460
f
DEC 2 4 1SSQ
n-St>i$
OFFICE Of ENFORCEMENT
MEMORANDUM
SUBJECT; Review of State NPDSS Permits Written Prior
to State Program Revision
TO: Recional Enforcemen
J)\
FROM: R. Sarah Compton
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"*™ 4f
It has come to my attention that at least one N?DES State
has begun to issue long-term SAT 3?J 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 N?D£S permit conditions contained in the consoli-
dated regulations (40 CFH §122.62) and is applicable to State
N'PDES programs. However, 40 CJR S123.13(g) allows States cne
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
hnve 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
long-te:;,t BAT BPJ per-n^t without a reopenur c-.^jse/ EPA cin
object to and veto that permit, under the authority of either 40
CFR § 123.75(c)(1) or (6). The fanner allows the Regional Adminis-
trator to object to a permit whicn fails to apply an applicable
requirement of Part 123 (in this case, §122.62, which is made
applicable to States, through S123 .7(d) (1 1 ) ) ; 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
mere stringent effluent limitation subsequently promulgated by
the Agency.
All NPD£S States should currently be ir. the process cf
revising their programs to incorporate the requirements of the
consolidated regulations. When this process is completed the
neec for the actions described above will be obviated, and States
will, as a matter cf course, include recpeners in the permits
Cntil such tirr.e, the overriding coal cf controlling
-------
- 3
ixic pollutant discharges must take precedence. Proposed Statt
-AT B?J permits should be reviewed, and any necessary action
taJcen if they do not include reopener clauses. Please note also
that under §122.64{a)(2) no permit written to expire after
June 30, 1981, nay be issued unless the discharger has submitted
the toxic pollutant discharge information required by §122,S3(d)
(7)(ii). If I can be of any assistance in implementing or
further explaining this rsolicy, please contact me (?T£ 755-0440}
cr Joel Bluir.stein (FTS 426-4793) of ir,v staff.
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VIII. SUMMARY OF SIGNIFICANT CASE LAW INVOLVING STATE PROGRAMS
A. The State Program Approval Process
EPA V. State Water Resources Control Board, 426 U.S. 200,
96 S.cTtT TSTT, 4~3 L.'Ed.2d~ST5{ 19761 (general aiscussion about
NPDES permit program and relationship between EPA and States)
Pea body Coal Co. y_. •Jjra_i n, 513 F. 2d 940 (6th Cir, 1975)
(a ch'all engeto che Administrator 's approval of a State program
must be tiled within 90 days toll owing the Administrator's
approval)
Citizens for a Better Environment v. EPA, 596 F.2d 720
(7th CTr~.1979") [tne Administrator may not approve State programs
until specific guidelines £or public participation in the State's
enforcement process are provided)
Central Hudson Gas & Electric Co. v. EPA, 587 F.2d 549
( 2d Cir. 1978) (an ag reementbetween EPA and a State that EPA
retains jurisdiction over permit cases in which adjudicatory
hearings were pending at the time the State program went into
force, does not violate a statutory provision which requires
EPA to suspend issuance or permits upon approval of a State
program)
B . Jurisdict lonal Issues
Crown Simpson Pulp Co. v. Cos^tle , 445 U.S. 193, 100 S.Ct.
1093, 63 L.Ed'.2d 312 (1980) (pejr cuYIam) (EPA'5 veto o£ a State
issued permit is directly reviewable by the Court ot Appeals
under § 509 ( b ) ( 1 ) ( F } ; Court also noted that ca-ies which held
that federal courts do not have jurisdiction ever EPA's refusal
to veto a State-issued permit were easily distinguishable
because a failure to object would not necessarily amount to
"Administrator's action" unaer §509{b)(l))
Love v. New York State Dept. o£ Environ. Consery. , 529
F. Supp. 832,840 (S.D.N.Y, 1981) (challenge t".. State's permit
issuance must be brought in State courts. Thi> CWA provides
no mechanism £or a direct,suit in tederal court where a State
is alleged to have failed to act in accordance with the Act)
District of Columbia v. Schramm, 631 F . 2 _: 354, 363 (D.C.
Cir. 1980) (CHA does not give federal courts jurisdiction to
hear challenges to a State's decision to issue a permit under
either § 509 (t>) ( 1 ) ( F ) or an implied cause of action theory)
3-1
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Chesapeake__3ay Foundat i qn_J^_L_^^tjJlM^g_t_ate wa_t_er____
Boa_rdT~"4i"5 F . Supp" mT~TE"71X""vA~TT3oTTSTa"t"e "permuT issuance
is a State action and not federal action and may not be reviewed
by a federal court)
Shell Oil Co. v. Train, 585 F . 2d 403, 414, 9 ELK 20023,
(9th Cir, 1973) (the existance of a State judicial torura to
review the actions of tile State's permitting body toreloses
the availability ot a tederal torura)
Miarms_Rlver Preserv. Com, v. Administrator, _EjPA, 541 F.2d
899 (2dCTr~1976 )(approved NPDES States ace "riot "enforcement
agents of EPA therefore, federal court does not have jurisdiction
under §509{D)(1)(F) to review State-issued permits)
Aminoil U.S.A., Inc. v. California State Water Resources
Board, 674 F. 2dTT77 {Ttn Cir.TT3T1 (State courts do"'nbVhave
jur isd ict ion over EPA)
C, Oversight and Program Withdrawal
Cjrgwi_Siffipson Pulp Company v Costle, 445 US 193,
63 L.ld.2d M2, 100 S Ct 1093 U9805 Tan EPA veto of a proposed
State permit is the equivalent of a permit denial and is
rsviewable in Federal Court of Appeals)
Distri_ct_ of Columbia v. Schramm, 631 F.2a 854 (D.C. Cir.
1980} (Ej?Ars~"decision not to veto a proposed State permit is
not federal action and is not reviewable by t"e Federal courts.
See also, Mianus_River supra at 907)
Washington v. EPA, 573 F,2d 533 {9th Cir. 1978)(E?A's power
to veto State-issued permit is contingent upon the prior
promulgation of effluent guidelines under §304(5))
Ford Motor Co. v. EPA, 567 F.2d 661 £6th Cir. 1977) (EPA
veto of modificationsto State-issued permit must be based on
published regulations or guidelines or express statutory
provision, not ad hoc policy determinations)
Rivers Unlimited v. Costle, 11 ERC 1681 <^.D. Ohio 1978)
(Disagreeing with Save the Bay decision, Court holds that a
citizens group need not completely exhaust the administrative
process prior to filing a suit in federal court because the
CWA imposes a mandatory duty on the Administrator.to make a
requisite finding or detetfrni nat ion of State program non-
compliance whenever he is presented with substantial evidence
oC such violations)
a-
-------
S av_fet_h e Bay , I r, c_. _v__. Adroinistrator _EPA , 556 F . 2 d 1232
( 5 c h CTF"!FyT71 t"5^To"r e EPA can oe s uea tor failure to wit n
State program approval, it must have had the opportunity to
undertake a full aoministracive review; Court also expressed
skepticism that a State's unsatisfactory handling of a single
permit would ever warrant EPA revocation or SPDES authorrty,
mucn less judicial reversal of an EPA decision not to withdraw
p r og r am a u t h o r ; t y)
D, State Enforcement
United S t a t e s v .__ ITT Rayonier,_Inc., 627 F.2d 996, 10 ELR
20945 (9th C i r .3.T3T77" •:
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IX STATE PROGRAM REVIEW/OVERSIGHT CHECKLISTS
A, Components of a Program Submission (3 copies) (§123.21)
Governor's/Director's Letter requesting program/
modification approx'alr
Description of program to be administered by the State;
Attorney General's Statement on legal authorities;
Memorandum of Agreement between State and appropriate
EPA Regionr
Copies of all statutory and regulatory authority forming
the legal basis for the program; and
Copies of any and all forms which the State intends to
use in administering the program, including:
___ Permit Applications
Discharge Monitoring Reports
Inspection Forms
Other
1 -
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E . ELEMENTS IN A PROGRAM DESC_R_IP TI0 N • '"
1 . N_P_DES PROGRAM DESCRIPTIONS (§123.22)
a. Organization and Structure of State Agency
0 Personnel ^__
0 Qualifications
0 Outline of General Duties
0 Organizational chart.
Staffing and Resources of the State Agency (initial 2 yrs}
0 Sources of fundinci
0 Administrative and technical support
0 Cost of operating the program
c. Scope of Program
Detailed Discription of Procedures the State Intends to
use for the following:
0 Application process
0 Permit development and issuance
0 Compliance monitoring
° Enforcement
e. Administrative and Judicial Review Process
f. Forms the State Intends to Use in Administering the
Proaram
2. PRETREATMENT PROGRAM DESCRIPTION
a. (Same as items A, B, C, E and F in NPDES Description, above
b. Procedures for Identification and Notification of
POTWs and Industrial Users Subject to Pretreatment
Requirements _____
c. Procedures for Requiring Development of Local Limits
d. Procedures for Requiring Local POTW Program Development
and Oversight and/or Procedures for State regulation of
industrial users (as applicable)
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e. Procedures for Evaluating Removal Allowance Requests
(optional)
f. Procedures for Collecting and Evaluating Compliance
Reports
g. Procedures for Enforcement Against POTWs and/or Industria:
Users
h. Sludge disposal rsquiregents
3. FEDERAL FACILITIES AUTHORITY
Procedures and Resources for Regulating Federal Facilities
4, GENERAL PERMIT PROGRAM DESCRIPTION
Procedures and Resources for Administration of the General
Permit Program (should address same topics covered above
under items I.e. and d. in terms of the general permit
program/ as well as resource and staffing impacts)
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C. ATTORNEY GENERAL'S STATEMENT
The Attorney General must certify, citing to specific
State legal, authority, that the State Board or Agency is
authorized to do the following:
1. NPDE5 Authorities
a- Authority to Issue Permits
b. Authority to Deny Permits
c- Authority to Apply Federal Guidelines and
Standards
d. Authority to Limit Permit, Duration
e. Authority to Enter and Inspect Facilities and to
Require Monitoring, Recording and Reporting
f. Authority to Require Notice of Introduction of
Pollutants into POTWs (if not addressed under
pretreatment portion of Attorney General's statement)
g. Authority to Issue notices, Transmit Data
and Provide for Public Hearings
h. Public Access to Information
i. Authority to Modify or Terminate Perrrits
j. Authority tc Enforce Program Requirements
and Permits
k. Conflicts of Interest
1. Incorporation by Reference, if used
P r e t r e a tm e n tVu t h ,or i
a. Authority to Regulate Industrial Users
b. Authority to Apply Federal Pretreatment Standards _
c. Authority to Require Notice of Intro election of
Pollutants into POTWs
d. Authority to Approve Local Pretreatmen- Programs and
Authority to Grant Requests for Removal Allowance
Adjustments {removal credit authority optional} ^
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e. Authority to Make Initial Determinations on Categorical
Designations and Requests for Fundamentally Different
Factors Variances
f. Authority to Apply Recording, Reporting and Monitoring
Requirements to Industrial Users
g. Authority of Enter and Inspect Industrial Users
h. Authority to Enforce Program Requirements Directly
Against Industrial Users
i- Authority to Issue Notices, Transmit Data, Provide
Opportunity for Public Hearings and Provide Public
Access to Information
3. Federal Facilities
a. Authority to Regulate Federal Dischargers
4, General Permit Authorities
a. Authority to Issue General Permits
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D, STATUTORY A'u TH 0 RIT Y
1. NPDES Requirements (§123.25)
a. Authority to issue permits
Prohibitions against permitting
Effect of a permi t
Confidential information
^^ Permit application
Signatories/certification
Concentrated animal feedlots
Concentrated aquatic production facilities
Aquaculture projects
Separate storm sewers
Silviculture
Permit boilerplate
Disposal into wells
b. Authority to apply federal standards and requirements
to direct dischargers
Permit conditions applicable to specified categories
of dischargers
Establishing permit limitations
Calculating permit conditions
Criteria and standards for in-posing technology-based
treatment requirements
Criteria for issuance to aqu.= culture projects
Schedules for compliance
Variances under the Act and EPA Regulations
Criteria and standards for determining fundamentally
different factors
Criteria for determining alternative effluent
limitations under section 316(a) of the Act
Criteria for extending compliance dates under
section 301(i) of the Act
c. Authority to limit permit, duratic".
d, Authority to enter, inspect and sample and apply
monitoring, recording and reporting requirements to
direct dischargers
e. Authority to issue notices, transrr.it data and provide
opp ar t u n i t y for public h e a r i n gs
-------
Draft permits
Fact sheets
Public notices (public and other Govt, agencies)
Bequest for hearings
Resoonse to comments
f. Authority to provide public access to information
a. Authority to modify or terminate permits
Permit transfer
^ Permit modification
Permit termination
h. Authority to enforce permit conditions and the requirements
of the permit program
Injunctions
Civil penalties
Public involvement
i. Require testing procedures described in Part 136
j. Jurisdiction over Indian lands (optional)
k. Conflict of interest: State Doard membership
1. Authority to incorporate EPA regulations by reference
(if used in State reaulations}
P r e t r e a t rr. e n t Require roe nts
a. Authority to apply Federally pro:"'.:Igated categorical
standards to industrial users am POTWs
b. Authority to require information regarding the
ir.tro-luct ion of pollutants into POTWs
c. Authority to make determinations on requests for local
pretreatment program, approval and removal allowances
d. Authority to make determinations on categorizations
and requests for fundamentally different factors
variances
e. Authority to apply recording, reporting, and monitoring
requirements to industrial users
f. Authority to enter, inspect and sample the effluent
cf industrial users
g. Authority to issue notices, transmit data and provide
an opportunity for public hearings and public access
to info rma t i on
-------
h. Authority to enforce against violations of pretreatment
standards a.nd requirements by industrial users
i. Authority to incorporate EPA regulations by reference
(if used in State regulations)
Feder a 1
a. Authority to regulate discharges from federal
facilities
4. General Permit Requirements
a. Authority to issue and enforce general permits
b. Authority to incorporate EPA regulations by
reference (if used in State regulations)
-------
E. REGULATORY AUTHORITY
A. Definitions (§122.2)
Average Monthly Discharge
Average Weekly Discharge
Best Management Practices
Continuous Discharge
Clean Water Act
Daily Discharge
Direct Discharge
Discharge of a Pollutant
Discharge Monitoring Report
Draft Permit
Effluent Limitations
Facility or Activity
General Permit
Hazardous Substances
Indirect Discharge
Major Facility
Maximum Daily Discharge
Municipality
New Discharger
New Source
Permi t
Person
Point Source
Pollutant
Primary Industrial Category
Privately Owned Treatment Works
Process Wastewater
Proposed Permit
POTW
Recommencing Discharger
Regional Administrator (RA)
Schedule of Compliance
Sewaoe from Vessels
Sewage Sludae
State/EPA Acreement
B. Exclusions (No more extensive than ETA) (§122.3)
C. List of Circumstances where Permit Issuance Prohibited
(§122.4)
Prohibition against issuing permi- where EPA objects
D. Effect of Permit Issuance (§122.5)
E. Confidentiality (§122.7)
F. The Application Process (§122.21)
-------
Generic Provisions:
General duty to apply
Who must apply
Duty to reapply
2. General Application Requirements [Form 1]
Name, address and location of facility
Activities and nature of business
SIC codes
Operator/owner name, address and phone f
Designation of Indian lands
A list of all other permits held or applied fo:
by the company
A topographic map
3. Additional Application Requirements For Existing
Manufacturing, Mining, Commercial or Silvicultural
Dischargers: [Form 2c] (§122,21(g))
Outfall/discharge points
Water-flow diagram for facility
Average flows and treatment
Intermittent flows
Maximum production levels
Potential discharges
Physical alterations
Effluent characteristics (data information)
Biological toxicity testing
Identity of testing/analysis contractors
Other information Director requests
4, Additional application requirements for new or existing
feedlots and aquatic production facilities [Form 2b]
(§122. 2Kb) )
5. Additional application requirements for new sources
{§122.21(10 )
6. Variances for Industrial Dischargers (optional)
(§122.21(1)):
Fundamentally Different Factors
§301(c) economic considerations (nonconventional
pollutants only)
^ §301(g) water quality factors (nonconventional only)
§301(k) innovative technology
§30.1. (i) delay in POTW construction
§301(b)(2) water quality related BPT/BAT modification
§316(a) thermal discharges
- 10 -
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Variance for POTWs (optional) ( § 1 2 2 . 21 (rn) }
§301 (h) discharge to marine waters
~~' §3Gl(i) delay in construction
'§3Gl{b)(2) water quality related BPT/BAT modification
8. Siematory requirements for applications and reports
(§122.22)
9. Recordkeeping requirements (§122.21(o))
10. Application Requirements for Special Sources:
Definition & special considerations for feedlots
(§122.23)
Definition & special considerations for aquatic-
animal production facilities (§122.24)
Definition & special considerations for aquaculture
(§122.25)
Definition & special considerations for stormwater
dischargers (§122.26)
_^ ^ Definition & special considerations for silviculture
(§122.2?)
New Source and Mew Discharge Requirements (§122.29)
Definitions
Criteria for new source determinatie-.s
H. Boilerplate Conditions (§122.41)
Duty to comply
Duty to reapply
Need to halt/reduce activity (can't ,;se as a defense)
Duty to mitigate
Duty to maintain and properly operat~ facilities
Duty to provide information to the D rector including
correcting any ommission or incorrec- statements made
in the application or other reports
Duty to allow entry and inspection
Duty to notify Director of physical rhanges
Duty to notify Director of anticipate 1 noncompliance
Duty to submit annual reports
Duty to report bypass, upsets and violations of maximuir,
daily discharge limits (24 hrs)
-------
Causes for modification, revocation and reissuance, or
"""~^~ termination
Penalties for violating permit conditions
3 Penalties for false info or tampering w/monitoring device
I. Additional Requirements for Existing Mining, Manufacturing,
Commercial and Silviculture Dischargers (§122.42(a)):
Notify Director of new or increased toxic pollutant
discharges occurring after permit issuance
J. Additional Requirements for POTWs (§122.42(b))(§122.44(j) ) ;
Notify Director of indirect dischargers who, but for the
POTW, would require an individual NPDES permit*
Notify Director of subsequent changes in the character
or volume of pollutants introduced to POTW
Develop a pretreatment program to prevent interference of
pass through, if so required under 40 C.F.R. 403.8(a)
K. Other Conditions in Permits (§122,4)
Permit duration
Monitoring and reporting frequencies
Reopener clauses
Restrictions/conditions on Federal grants
Anchorage and navigation concerns of COE and the Coast
Guard
Sewage Sludge disposal
Best management practices
" Privatelv owned treatment works
L. Consideration for Establishing Discharge Limitations
{§122.44 and §122.45):
Use EPA technology-based standards, if promulgated
_' BPJ authority
Other effluent standards where appropriate (e.g. 3Q7(a}--
'toxic standards imposed under 3Ql(b)(1)(c))
Provisions limiting backsliding of effluent limits similar
to those in §122.44(1)
^^ State water quality standards and area management plans
~^^ Number of outfalls
Production-based limitations where appropriate
"_ Expressed standards for metals
Continuous discharger or noncontinuous discharges
Privately owned treatment works must also identify its users.
The Director may require users to apply for an i\PDES individual
permit (§122,44(m)).
- 12 -
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Calculations in terms of "mass" rather than another
measurement (except for PH, temperature, radiation
and PCTWs )
Credit for pollution in intake water (net/gross)
Internal was test reams
^^ Disposal into wells, POTWs, or land application
M. NFDES Criteria and Standards (Part 125)
Criteria and standards for imposing technoloqy-based
treatment requirement under 301(b) and 402 of
the Act (Subpart A)
Criteria for issuance of permits to aquaculture projects
(Subpart B)
Criteria for extending compliance dates for facilities
installing innovative technologies under 301(k) of
the Act (Subpart C)
Criteria and Standards for determining fundamentally
different factors under sections 301(b)(1)(A), 301(b)(2)(A;
and (E) of the Act (Subpart D)
Criteria for determining alternative effluent limitations
under section 316(a) of the Act (Sutapart H)
Criteria for extending compliance dates under 301 (i) of
the Act (Sutapart J)
N. Procedure For Modifying Permits (§122,61, 122.62 & 122.63)
Procedures for transfering permits
Causes and procedures for modifying permits (Note: State
may not adopt modification causes less stringent than
EPA ' s )
Causes ^nd procedures for minor modi -ications (Note: State
may only adopt minor modification causes similar to
EPA's)
0. Procedures For Processing Permit App". ications (Part 124)
Draft perrr.its
Proposed permits
Fact sheets
Public notice and comment
Availability of public hearings
Responsiveness summary for significa- i comments received
Written reasons accompany all final decisions
Appea1 procedures
EPA ' s right to review and object to draft State permits
-------
Program Regulation^ (§403
A, Suqqested Definitions (§403.3)
Approved pretreatment program
Slowdown
Categorical pretr&atraent standards
Consistent removal
Indirect discharge
Industrial user
Interference
National pretreatment standards
Noncontact coolinq water
New source
Pass through
POTW
Pretreatment
Process wastewater
Overflow
Removal
B. Prohibited Discharges ( §403.5(a-b))
General prohibition on interference/pass through
Specific prohibitions
Inflammables
Corrosive elements
__ Blocking/viscous pollutants
Dense flows/concentrations
Heat (104° F)
C. State adoption of categorical pretreatment standards
(§403.6) (Subchapter N)
Deadline for Compliance With Categorical Standards
(§403.6
Use of Concentration and Mass Limits (§403.G(c))
No Dilution as Substitute Treatment (§403.6(d))
Combined Wastestream Formula (§4C.;,6(e))
Alternative Limits Calculations:
Alternative concentration liir.i ts
No alternative limits below detection levels
Self raonitorinq required
- 14 -
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D. Development: of local limits for industrial users
(§403.5(c-d))
Developed by POTWs with programs
Developed by POTWs without programs
Local limits are enforceable by State
E. EPA/State enforcement where PQTW fails to do so
(§403.5(e))
F. Category Determination Requests (§403.6(a}}
Application deadlines
Application contents:
a. Applicable subcategories
b. Designation of appropriate subcategory and
evidence
Deficient requests
Final decisions
Requests for hearing to EPA Regional Administrator
(net State)
G. POTW Revision of Categorical Pretreatment Standards
Reflecting Pollutant Removal (§403.7):
1, General (§403.7(a))
Limited to indicator or surrjqate pollutants
regulated in applicable ca-.egorical standard
POTWs must apply and be approved to grant credits
PGTW shows consistent removal of the pollutant in
question
POTW has program (or is developing program)
Granting removal credit won't violate sludge
requirements
Grantina removal credit won't cause POTW to violate
its NPDES permit
Prooer formula used for caic..latino revised limits
2. POTW Demonstration of Cons is* -.-?nt Removal (§403.7(b)):
12 samples/year
Composite sampling preferred
Pollutant analysis consistent with Part 136 techniques
Proper formula used for calculating consistent
remova1
- 15 -
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3. Provisional Credits for new discharges (§403. "Me))
4. Conditional -Authority for PQTWs with Pending
Program Approvals (§403.7(d))
5. POTW Application for Removal Credit Authority
(§403*. 7(e) }
List of pollutants
Consistent removal data
Calculation of revised discharge limits
Local pretreatment program certification
Sludge management certification
NPDFS oermit limit certification
6. Approval Procedures for Granting Removal Credit.
Authority (§403.11)
Completeness determination
Public notice and opportunity for hearing
Additional 90 days to review if the public comment
period is extended beyond 30 days or a public
hearing is held; however, in no event may the
review period exceed a total of 180 days from
the date of public notice.
POTW permit is modified to reflect removal credit
authority
7. Continuation and Withdrawal of Authorization to
Modify Standards (§403.?(£)):
Compliance monitoring and reporting consistent
removal
Re evaluations when "PDES permit, reissued
Modification or withdrawal of revised limits
^^ Notice to POTW
Corrective action
Notice to the public
8, Removal Allowances in State-Operated Pretreatment
Proarams (no pretreatment program required
(§403.7(g)):
H, State Pretreatment Programs (§403.8)
1. General Provisions (§403.8(a)):
Greater than 5 mgd total desi~r. flow
Deadline for program approval
Program incorporation in the permit
T ncoroc r a ?. i. no compliance schedules
™~ Reasons for reissuing or modifying permit
- .1.6
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2. Local Program Requirements (§403.8(f)}:
a. POTW must have legal authority to:
Regulate pollutants being introduced to it
Require I.U.'s to comply with pretreatment
standards
Control each I.U.'s contribution to POTW
Develop and require compliance schedules
Require submission of notices and reports
Enter, inspect, sample and copy records
Seek injunctive relief for noncompliance
Seek civil and criminal penalties (or)
Contractually arrange to receive liquidated
damages from I.U.'s in the event of non-
compliance with standards
Confidentiality of information
b. Local Program Procedural Requirements
( §403.8(f) (2) ) :
Identify and locate locate I.U.'s subject
to pretreatment standards
Identify character and volume of pollutants
Notify I.U.'s of their obligations to meet
standards
Receive and analyze self-monitoring reports
of I.U.'s
Randomly sample and analyze POTW influent
and e ff1uent
Sample and analyze POTW sludge and sludge
'disposal
_ Investigate POTW noncompliance
Procedures for public participation
Procedures for approving POTW programs
Publication of noncomplying industrial users
I. POTW Pretratment Program Elements (§403.9(b)):
City Solicitor's statement
Legal authority (see above)
Program decription
Enforcement program
Copies of statutes, ordinances, regulations etc.
POTW organization, including flow charts
Funding and manpower levels
J. Procedures for Local Program approval (§403.11
Completeness
Conditional Approval of POTW Program
- 17 -
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Consistency with Water Quality Management Plan
Public Notice and opportunity for hearing
Approval authority has 90 day review unless public comment
period extended or hearing granted (then have up to an
additional 90 cays to review)
EPA objection to State Director's approval
Notice of the decision
Public access to the s utamission
K. State Program used in lieu of POTW proqrams (optional
(§403.10(e)
L. Reporting Requirements for POTWs and I-U.'s (§403.12);
Identifying information including list of permits held
_ Description of operations
Flow measurements
Measure of pollutants
Certification of compliance with pretreatment standards
Compliance schedule
Baseline monitoring reports
Compliance report categorical standards deadline
"~ ~ Periodic report on continued compliance
Notice of slug loading
Compliance schedule for POTWs developing local programs
Signatories (POTWs and I.U.'s)
Fraud and false statements
Recordkeeping
M. Variance from categorical pretreatment standards for
fundamentally different factors (§403.13)
N. Confidentiality (§403.14)
0. Net/Gross Calculations (§403.15)
P. Upset/Excursion Provisions (§403-16)
3, F edera1 Facilities Regulations
Definition of person
Definition of facility
Definition of discharaer
4 . Gen, e ral P e: rmi t s Reg_ulat_ig_n_s (§122,28
Geographic restrictions
Sources eligible
Administration
.18
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Director requires individual permit
Individual permittee seeks coverage under the general
permit
General permit revoked when individual takes effect
Avoid general permit through request for individual
permit
Public notice and hearina reauirements
- 19 -
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F. ELEMENTS IN A MEMORANDUM OF AGREEMENT
Transfer of pending permit applications and EPA's
Files to the State Board or Agency;
Brief Discription of Annual 106 Work Plan and ?roar1 am
Review Processses;
Joint EPA/State Permitting Procedures;
Identify Types/Specific Permits EPA will Review and
Comment L'pcn ;
Prohibition Against Issuing Permits Over EPA
Ob lections;
EPA's Override for Permit Issuance and Enforcement;
Frequency and Content' of State Reports;
Coordinated Compliance Monitoring Activities;
Acknowledge EPA's Right to Examine State's Files;
State/EPA Enfocement Agreements;"
Public Participation in Enforcement•
Disposal into Wells;
Conflict of Interest Requirements
Outline of Management Information System (MIS)
Supporting Compliance Tracking Program;
Statement, that Program may be Withdrawn for Noncompliance
with the Agreement;
Procedures for Maintaining Incorpcra -. ^on of EPA
Regulations Up-to-Date (if used in S:.ate Regulations);
Duration of MOA; and
Procedures for Amending the MOA.
20 -
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G, APPROVAL PROCESS FOR SEW SUBMISSIONS AND PROGRAM MODIFICATION'S
Initial Development
State review of EPA regulations, policies and guidance documents
Preliminary evaluation by State of the adequacy of statutes,
regulations, program and funding sources
Meeting between EPA Regional Office and State to discuss
State's preliminary evaluation (Region notifies Headquarters
that p r u c e s s has begun)
EPA review and comment; models of documents needed for
formal submission provided to State
Program and Document Development
State incorporates EPA comments from initial development stage
State submits draft of statutes, regulations, program
description, Attorney General's statement and Memorandum of
Agreement (MOA) to Regional Office
Regional Office forwards State drafts to Headquarters for
concurrent review
Headquarters' staff reviews drafts and sends comments to
Regiona I Office
Regional Office submits comments to State; incorporates
Headquarters' comments with its own and meets as necessary
to resolve problem areas
State incorporates changes based on comr.ents
State enacts any necessary legislation :program and funding)
State promulgates program regulations
Formal Submission
State submits three (3) copies of the following to the
Regional office as its formal application for program approval
o Letter from Governor requesting program approval
o Program Description (including staffing and funding
descriptions)
- 21 -
-------
o Attorney General's Statement
o Memorandum of Agreement (MOA) between State and Regional
Administrator
o All statutes and regulations which provide legal authority
for program
o Forms to be used in administering the program.
Regional Office forwards Program Submission to Headquarters
for Concurrent Review
Regional Office determines whether Program Submission is
complete (For program modification, the Regional Office,
in conjunction with Headquarters, determines whether
modification is substantial. If modification is not sub-
stantial, the abbreviated procedures at the end of this
checklist should be followed. If modification is substantial,
the following procedures, with the changes indicated, should
be followed:)*
Regional Offfice publishes notice of proposed program in
Federal Register and largest newspaper in the State;
mails notice to interested persons
Regional Office holds public hearing in the State no less
than 30 days after publication of notice (for substantial
modifications, hearing will be held if there is significant
public interest)
Public comment period - minimum of 45 days after publication
of notice (for substantial modification, comment period
is a minimum of 30 days)
Regional Administrator decides on approval
Headquarters concurs in Regional Administrator's decision
Region publishes notice of approval in Fe d e r aI Register.
40 CFR 123.10(h)(2) states that "all requests for approval of
State Pretreatment Programs shall be deemed substantial program
modi fications."
22
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1 . „• v w' VV V v 1. V V •- v -•-•,•.•
ermit
MODEL NP_DE5 PERMIT FORMAT
AUTHORIZATION TO D I SC KARGF • UNDER THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
In compliance with the provisions o^ the Federal Water Pollution
Control Act, as amended, (33 U.S.C, 51251 et sea., hereinafter
the "Clean Water Act", or "Act"1 and attendant recitations
inccroorated by the L'.S. F. r: v i r o P.TTI e r, t a 1 Prctecticn Acencv under
T'ltle 40 of the Code of Federal Reaul a t i ons
(Nar^e of Discharcer) (hereinafter "Permittee" )
is authorized to discharae from its (d e s cr i r t i on of ^acilitv) ,
located at
f insert Address)
to the receivinc waters named! ( i d e n t i f v )>
in accordance with the effluent limitations, monitoring
r ecu ir em.ent s anr1 other conditions set forth i i Parts I, II,
and III herein. The permit consists of this rover sheet,
^art 1-3 Daoe(s), Part II - 21 paqetsl, and Part III - 5
( si .
All references to Title 4^ of the Code of Fer-:-ral ^eaula
are to reaulations that are in effect on the -ffective date oc
this oermit. Unless otherwise specified here.i, all terms
are defined as provided in the ar^pl i cab 1 e rec. Cations in Title
^n cf the Code of Federal Regulations.
This oermit shall become effective on [insert date). This
nermit and the authorization to discharge sh3~l exoire at
rr.idnicht ( insert date) .
Da te
-------
i'nrmit No,
'ART I
A. F.FFIJUFWF UMITATTONS AND MONITORING RnouiRFMrwrs (Sample Refluent Limitations).
1. r>irirKt the period beninninq on the effective date of this thermit and last inn Ihrouqh expiration, the
ivnnitt.ee is authorized to discharge frcin exit fall serial numlxir fiOl , non- contact ox>l inr>low:
PA WlfFR PISOIARGR I.TMITATTONS MnHITORrNC
Measurement Sample
i ] y Aver age Hm ly Haximiyi rrefpjency Type
t 1A]ny(MC;s>) - - - J /Month Instantaneous
fir ah
Ol i!i<>r Penni t.s
Tito pt] shall not ho lesr? than fi.O standard units nor greater than ^.(1 standard units and nhaH ho
i s tir n<1 once i>nr month by or ah sample.
'e shall he no discharqe of floatioq soMrls or visihle fonn in-otliec than trace amounts.
r; taken in cnmpl ianre with monitorino rcrriirctTiiMits specified above shall he taken tit the
iol [(iwinq liir/st ionis): .1! l!if;il)le |v>int hut i*r ior to actual discharge of inixiitt
with Hw r^ceivino waters.
iho SVrmitJee shall not ainment the use of process wast.ewater or otherwise dilute the wastewater
as a partial or total substitute for arienuate treatment to achieve compliance with the a
1 srn i tations .
-------
Perm
PANT I
A. RFPUIEOT LIMITATIONS AND MONITORING RNOUIRIT1WIT> (Sample Rffluent Llitations).
?. Pur inn the per iotl beqinninq effective date and lastirvj thtoiiqh expiration date the Permittee is
nul.hor iz.ed to discharqe fron outfall serial ninfvr 002, treated process wastewal er .
f>urh di^charqes shall tie limited and monit
ITfluent Characteristic
by the norm it I: TO as st>?cififH-l ho low:
Limitations
Honi t or ing Rec|uiretnent-'
Avq . Month! y Hax . Ha i 1 y
Avq . Mont h 1 y
i fy) Mivmii!
Max . Da il y Fr eqi lem-y^
(MGO)
TSS
nil .UK! Grease
Al unin inn
("li!'' mi um
?! on
'Van if if
* Total TOKic OrqanIcs
'•[/•ad
The pit Bbal I not be lor.s than fi.O standard
•:|i.ill Ho UK >H j I ( >t cil iLsil',- '••.- ,t i]i.ib .•'.u
2/Wonl h
2/Monl h
2/M" >ni h
?/Mont h
2/Mrmth
1/Ouar ter
l/(Hiarter
1 /Month
I /Month
1 /Month
qreator than *?.0 standard units and
ilii'i r> shall be no diRoharqo of float ir«i solids or visible foam in bthor than tracn amount?;.
f;;«-itTiplr.s taken in ctwipl lan<^-« with tho mtr\\toc irv\ requirements specifiexl above shaU be taken
ft (in I he followino location: at tho point of discharge..
T»K> Perm It too ?hall not amRent the. use of process w/istewater or otherwise dilute the wnslewate
an a p.irtlnl or total sti»>sl Ituto. for adequate treatment to achieve compliance with the nhove
1 imi tat ions.
Aw]. M,ix . Mi n .
R-hr romiiosi t <*
Gr ab
B-hr Compor.i t e
0-lir Ccinpos i I **
fl-hr Ccm|ir>sitf>
Grab
Grab
fl-hr Ccmposito
n- hr Composi t«
fl- f\r Ccrn|Tos i t' e
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Page 1-3
Permit No.
B. GENERAL EFFLUENT LIMITATIONS
The effluent shall, at all times, he free of substance;
1. In amounts that will settle to form outrescent, or otherwise
objectionable, sludge deposits, or that will adversely affect
aquatic life or water fowl;
7. . of an oily, creasv, or surface-active nature, and of other
floating debris, in amounts that will form noticeable
accumulations of scum, foam or sheen:
3. In amounts that will alter the natural color or odor cf the
receiving water to such degree as to create a nuissancer
4. In amounts that either sino 1v or in combination with other
substances that are toxic to human, animal, or aguatic life:
5. In ammonts that are condusive to the growth of aauatic weeds
or alaea to the amount that such growths Become inimical to
more desireable forms of aguatic life, or create conditions
that are ur.sightlv, or constitutes a nuissance in any other
fash ion .
6. In anounts that will impair designated instream or downstream
wa ter uses „
C. SCHEDULE OF COMPLIANCE
1. The Permittee shall achieve compliance with the effluent
limitations specified for discharges in accordance with
the following schedule:
NO later than 14 calendar davs followir." a date identified
in the above schedule of cornel iance, the permittee shall
submit either a report of: progress or, in the case of
specific actions be;ing recuired by identified dates, a
written notice of compliance or noncom-1iance. In the
latter case, the notice shall include the cause of non-
compliance, anv remedial actions taken, and the pro-
bability o^ meetina the next scheduled recuirement.
-------
r m i t
Part II
STANDARD CONDITIONS FOR NPDES PERMITS
SECTION A. GENERAL CONDITION^
1 • Dutv to C orr.nl v
The Permittee IT, u s t c or?. p T y with all conditions cf this ne r rc i t .
Anv permit noncomDl i ance constitutes a violation of the Clean
Water Act and is grounds for enforcement action: for nermit
termination, revocation and reissuance, or modification; or
dental of a pe r^.it renewal application.
2 . Toxic Pollutants
The Permittee shall comnlv with effluent standards or orohibitions
established under Section 30 "Ma) of the Clean Water Act for
toxic pollutants within the time provided in the regulations
that establish those standards or prohibitions, even if the
permit has not vet been modified to incoroorate the recuirement.
3 . Penal i ties for violations of Permit Condition^
Anv person who violates a permit condition is subiect to a
civil oenaltv not to exceed ?in,ono per dav for each violation.
Any nerson who willfully or negligently violates permit conditions
is subiect to a ^ine of not less than 52,50- nor more than
S25,^on per dav for each violation, or bv imprisonment for not
more than 1 vear , or both.
*
& . Duty to Peapplv
(a) Ic the Permittee wishes to continue an activity regulated
by this permit after the expiration date of this permit, the
Permittee must apply for and obtain a renewal permit. The
Permittee shall submit a new application at least l^n days
before the exniration date of this permit, unless permission
for a later date has been granted by the Director.
(b) Where EPA is the Permit issuing Authority for the renewal
permit, the terms and conditions of this permit continue in
force under 5 U.S.C. 5^5P(c) until the effective date of the
new- permit (or permit, denial) only if the Permittee has submitted
a timely and complete application under 40 CFR 5122.21 for a
renewal permit and the Permit Issuing Author itv, through no
fault of the Permittee, does not issue a new Derm it {or deny
the permit) before the expiration date of this permit. The
r>erT,it continued under 5 rJ . S . C . $558 (c) remains fully effective
and enforceable, includinc subiect to the actions set forth
in 4i"l CFR SI 22 . H < c) .
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No.
Putv to Mi
The Permittee shall take all reasonable steps to minimize or
prevent any discharge in violation of this permit which has a
reasonable likelihood of adversely affecting human health or
the environment.
6. Perm i t Actions (Modification, Revocation and Peissuance, or
Ten
(a) This permit may be modified, revoked and reissued, or term-
inated for cause (as described in 40 CFR S$122.fi2, 122.6-3, and
122.64), includina, but not limited to: (1) Violation of any
ter^is or co/iditions oc tk i s permit: (2) Obtair.ino t^is permit
by misrepresentation or failure to disclose fully all relevant
facts; or (3) A chancie in anv condition that reauires either a
temporary or permanent reduction or elimination of the permitted
discharge. The filing of a reauest hv the Permittee for a
permit modification, revocation and reissuance,' or termination,
or a notification of planned chanaes or anticipated noncompliance,
does not stay anv permit condition.
(b) Notwithstandinn ^aracranh.II-A-6(a) above, if a toxic
effluent standard or prohibition (including any schedule of
compliance specified in such effluent standard or prohibition)
is established under Section 307(a) of the Clean water Act for
a toxic oollutant which is present in the' d ischarge and such
standard or prohibition is more strinaent than any limitation
for such pollutant in this oermit, this permit may be modified
or revoked and reissued to conform to the tcxic effluent
standard or prohibition.
(c) Notwithstandina Paragraph II-A-Ma) a^ove , this oermit mav be
modified, or alternatively revoked and reissued, to comoly with
anv applicable effluent standard or limitation issued or approved
under Sections 3fU ( b) ( 2 ) ( A ) , '(C) , (0), (E) and (F),-or 304(b)(2) of
the Clean Water Act, if the effluent standard or limitation so
issued or approved contains different contains different
conditions or is otherwise more strrnaent than anv effluent
limitation in this permit: or controls anv DC", lutant not limited
in th i s perm i t. -'
1 . Effect of Permi t /O t h e r____L_a_w_s
(a) Issuance of this permit does not convey any property rights
of. anv sort, or any exclusive privileaes, nor does it authorize
anv iniurv to persons or property, or invasion of other nrwste
riahts , or anv infrinaement of Federal, State or local laws or
(b) Notnina in this oermit shall be construed to preclude the
institution of anv lecal action or relieve tr.e ^ermittee from
ar.v responsibilities, liabilities, cr r-e nal t ii-s established
pursuant to anv applicable Fiiete law or recu'atior. under autoritv
nr eser vec bv section 5 1 n o c tine C j ean Wa ter ^c t .
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e 11-3
ra it MO .
(c) Nothinc in this permit shall be construed to oreclude the
institution of any lecal action or relieve the Permittee from
anv resoonsibilities, liabilities, or penalties to which the
Permittee is or may be subject under Section 311 of the Act.
(d) Fxpect as provided in permit conditions on "Uosets", Para-
araoh il-R-i below, and oH Excursions, Paraaraoh Ii-D-7 below,
nothina in t^is nerrr.it shall b<=> construed to relieve the
Permittee crom civil or criminal penalties for nor.compliance
with a permit condition,
(e) Pursuant to Section 5nq(b){l)(F) of the Clean .Water Act,
a chal'enae to the validitv CF oermit conditions, includina
the effluent ".imitations in Part :-A of this permit, shall not
be a defense to an enforcement action under Section 309 or 505
of the Clean Water Act. r.ach and every violation of a permit
condition is subiect. to an enforcement action.
(f) CoiriDliance with the terms of this oermit does not constitute
a defense to anv action brouaht under C504 of the Clean Water
Act, or anv other law ooverninc protection of public health or
welfare, for anv imminent and substantial endangerment to oublic
health or welfare.
P. Onshore or Offshore Construction
This permit does not authorize or approve the construction of
any onshore or offshore ohvsical structures or facilities or
the undertakinc of anv work in anv waters of ihe United States.
9.. Inspection and Entry
The Permittee shall allow the Director, or an authorized
r eor esen ta t i ve , upon the oresentation of credentials and other
documents as mav be reauiredihv law, to:
a. Enter uoon the Permittee's oremises where a regulated
facility cr activity is located or conducted, or where
records must be keot under the conditions of this
nerm i t ;
b. Have access to and copy, at reasonat.? times, any
records that must be kept under th*= conditions of
this Dermi t ;
c. Ip.soect at reasonable time anv facilities, eauioment
(includina monitorina and control ec-ioment), Dractices,
or operations regulated or reauired under this permit,
and
monitor at r e £ s o ". able times, for the
our noses cc ass urine ^e rr.it COT, cliar-e or as otherwise
authorize" b v ihe Clean i% 2 t e r Act, >=. ~ v substances c r
parameters at a ." v locat
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Permit No,
10, Severabillty
The provisions of this permit are severable, and if any
provision of this permit/ or the application of any provision
of this perrr.ir, to any circumstance, is held invalid, the appli-
cation of such provision to other circumstances, and the re-
mainder of this permit, shall not be affected thereby.
SECTION B. OPERATION AND
1 . Proper Operat_i_cm_and Maintenance
The Permittee shall at all times properly operate and maintain
all facilities and systems of treatment and control (and related
appurtenances) which are installed or used by the Permittee to
achieve compliance with the conditions of this permit. Proper
operation and maintenance also includes effective performance,
adequate funding, adequate operator staffing and training, and
adequate laboratory and orocess controls, including appropriate
quality assurance procedures. This provision requires the
operation of back-up or auxiliary facilities or similar systems
which are installed by the Permittee only when the operation
is necessary to achieve compliance with the conditions
of this permit.
2 . Need to Ha_l_t or^Reduce not a Defense
It shall net be defense for a Permittee in an enforcement action
that it would have been necessary to halt or reduce the permitted
activity in order to maintain, compliance with the conditions
ofthispermit-
3 . Bv_pass_ of Treatment Facilities
a . De f in itions
(i) "Bypass" means the intentional Diversion of waste
streams from any portion of a treatment facility,
(ii) "Severe property damage" means substantial physical
damage to property, damage to the treatment facili-
ties which causes them to become inoperable, or
substantial and permanent loss cf natural resources
which can reasonably be expected to occur in the
absence of a bypass. Severe property damage does
not mean economic less caused by delays in
'ion.
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Pace n-5
Permi- NO.
b. Bypass net exceeding limitations.
The Permittee may allow any bypass to occur which does
not cause effluent limitations to be exceeded, but only
if it also is for essential maintenance to assur-e
efficient operation. These bypasses are not subject to
the provision s of Paragraphs I I - B - 3 ( c ) and ( c ; , D e 1 o w .
.. c . Not i ce
(i) Anticipated bypass. If the Permittee knows in
advance of the need for a bypass, it snail sunmit
prior notice, if possible at least ten days before
the date of the bypass; {including an evaluation
of the anticipated quality and effect of the
b y pa s s . )
(ii) Unanticipated bypass. The Permittee shall submit
notice of an unanticipated bypass as required in
Paragraph II-D-7 (24-Hour Notice).
c. Proh i b i t ion of by pass .
Bypass is prohibited and the Director may take
enforcement action against the Permittee for bypass,
unless :
(i) Bypass was unavoidable to prevent loss of life,
personal injury, Qr severe property damage;
(ii) There were no feasible alternatives to the
bypass, such as the use of auxiliary treatment
facilities, re-tention of untreated wastes,
or maintenance during normal periods of equip-
ment downtime. This condition is not satisfied
if adequate back-up equipment should have
been installed in the exercise of reasonable
engineering judgment to prevent a bypass
which occurred during normal periods of
equipment downtime or preventive maintenance;
and
(iii) The Permittee submitted notices as required
under Parag^rpah II-B-3(c) above.
e. The Director may approve an anticipated bypass, after
considering its adverse effects, if the Director deter-
mines that it will meet the three conditions listed
above in paragrapn II-5-(3)(c).
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Page !i~6
Permit No.
(a) Definition. "Upset" roeans an exceptional incident in
which there is unintentional and temporary noncora™
piiance with technology-based permit effluent limita-
tions becuase of factors beyond the reasonable con-
trol of the Permittee. An upset does not include
noncompi lance to the extent caused by operational
error, improperly designed treatment facilities,
inadequate treatment facilities, lack of preventive
maintenance, or careless or improper operation,
(b) Ef_f e c t__ of an u ps e t. An upset constitutes an
affirmative defense to an action brought for non-
compliance with such technology-based permit effluent
limitations if the requirements of Paragraph II-3~4(c)
below, are met. No determination made during admini-
strative review of claims that noncompliance was
caused by upset, and before an action for noncora-
pliance, is final administrative action subject to
judicial review.
(c) Conditions necessary for a__demonstrat ion of upset.
A Permittee who wishes to establish the affirmative
defense of upset shall demonstrate, through properly
signed, contemporaneous operating logs, or other
relevant evidence that:
(i) An upset occurred and that '.he Permittee can
identify the specific cause;s) of the upset;
(ii) The Permitte facility was at the time being
properly operated;
(iii) The Permittee submitted notice of the upset
as required in Paragraph IIO-7 below,
(24-hour notice); and
(iv) The Permittee complied with sny remedial
.measures required under Paragraph 1I-A-5 above,
(d) Burden __of _^p_rp_of. In any enforcemer-. - proceeding the
Permittee seeking to establish the occurrence of an
upset has the burden of proof.
5 . A__Sc_h ejju _l_e_gf Maintenance
Any maintenance of facilities, which might necessitate
unavoidable interruption of operatic:*, and degradation
of effluent quality, shall be scheduled during non-
critical water quality periods and carried out in a
wanner approved bv tr.e Director,
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Paae II-7
Permit No,
Power Failures
In order to maintain compliance with the effluent
limitations and prohibitions of this permit, the
Permittee shall either:
In accordance with the Schedule of Con piianee
contained in Part I, provide an alternative
power source sufficient to operate the waste-
water control facilities;
or, if such alternative power source is not in
existence, and no date for its implementation appears
in Part I ,
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.
Removed Substances
This perir.it does not authorize discharge of solids,
sludge, filter backwash, or other pollutants removed
in the course of treatment or control or wastewaters
to waters of the United States unless specifically
limited in Part 1-A. All solids, sludges, filter back-
wash, or other pollutants removed from, or resulting
from the treatment or control of discharges must be
disposed of in accordance with all applicable Federal,
State, and Local recuirements.
SECTION C. MONITORING AND RECORDS
1, Representative Sampling
Samples and measurements taken for the r.jr poses of
monitoring shall be representative of the volume and nature
of the monitored activity,
2. Sampling Points
All s arc pies shall be taken at the monitoring points specified
in this permit and, unless otherwise specified, before the
effluent joins or is diluted by any other was test ream, body
of water, or substance. Monitoring points shall not be
chanced without notification to and the approval of the
Di rector.
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Page II-3
Permit No>
Flow Measurements
Appropriate flow measurements devices and methods consistent
with accepted scientific practices shall be selectee and
used to insure the accuracy and reliability of measurements
of the volume of monitored discharges. The devices shall
be installed, calibrated and maintained to insure that the
accuracy of the measurements are consistent with the accepted
capability of that type of device. Devices selected shall
be capable of measuring flows with a maximum deviation of
less than +_ 101 from the true discharge rates throughout
the range of expected discharge volumes. Once-through
condenser cooling water flow which is monitored by pump
logs, or pump hour meters as specified in Part I of this
permit and based on the manufacturer's pump curves shall
not be subject to this requirement. Guidance in
selection, installation, calibration and operation of
acceptable flow measurement devices can be obtained from
the following references?
a. "A Guide of Methods and Standards for the Measurement
of Water Flow", U.S. Department of Commerce, National
Bureau of Standards, NBS Special Publication 421,
May 1975, 97 pp. (Available from the U.S. Govern-
ment Printing Office, Washington, D.C. 20402.
Order by SD catalog No. 013.10:421.)
b. "Water Measurement Manual", U.S. Department of
Interior, Bureau of Reclamation, Second Edition,
Revised Reprint, 1974, 32? pp. (Available from the
U.S. Government Printing Office, Washington, D.C,
20402. Order by catalog No. 12".19/2;W29/2, Stock
No. S/N 24003-0027.)
c. "Flow Measurement, in Open Channels and Closed
Conduits", U . S,-De partment of Co-.merce, National
Bureau of Standards, NBS Special Publication 484,
October 1977, 982 pp. (Available in paper copy
or micotiche from National Technical Information
Service (NTIS), Springfield, VA 22151. Order by
MTIS No. PB-273 S35/5ST.)
d. "NPDES Compliance Flow Measurerne-,t Manual", U.S.
Environmental Protection Agency, Office of Water
Enforcement, Publication MCD-77, September 1981,
135 pp. (Available from the General Services
Administration (8BRC), Centralized Mailing Lists
Services., Building 41, Dever Federal Center,
Denver, CO 80225.
M o n it orJJ1S Procedures
Monitoring r.u s t be conducted a c c c r d i ng t c test procedures
approved under 40 C"R Part 136, unless ctr.er rest pro-
cedures have been specified in this perrr,it.
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Page II-9
Perm i t No,
5. Calibration
The Permittee shall periodically calibrate and perform
maintenance on all monitoring and analytical equipment
used to monitor the pollutants discharged under this per-
mit, at intervals which will ensure the accuracy of
measurements.
6 . Te_sting Variability Not 3 Defense
If the Permittee believes or has reason to.believe that
monitorina or sampling results reflect an analytical
variability so as to renc'er the results inaccurate, he may
monitor or sample more frequently than required by this
permit. The validity of the testing results, whether or
not the Permittee has monitored or sampled more frequently,
shall not be a defense to an enforcement action under
§§309 or 505 of the Clean Water Act.
7 . p£ Effluent Limitations U_n d e r Continuous Mon i t or i ng
Notwithstanding Paragraphs I of this permit, where the
Permittee continuously measures the pH of waste.water pursuant
to a requirement or option, in this permit, excursions from
the range provided in Paragraphs I-A are permitted, provided:
(a) The pH limitation in Paragraphs I-A of this permit is
based upon a requirement imposed urzer 40 CFR Subpart N.
(b) The total time during which the pH values are outside
the required range of pH values shall not exceed 446
minutes in any calendar month; and
(c) No individual excursions form the r;nge of pH values
shall exceed 60 minutes.
(d) For purposes of this section, an "excursion" is an un-
intentional and temporary incident in which the pK
value of discharge wastewater exceeds the range set
forth in Paragraphs I-A of this per-it. The number
of individual excursions exceeding -J minutes and the
total accumulated excursion time in minutes occurring
in any calendar month shall be re per ted in accordance
with Paragraph II-D-5 of this permit.
8. Penalties for Tampering
The Clean Water Act provides that any person who
falsifies, tampers with, or knowingly renders inaccurate
any monitorina device or method required to be main-
tained under this permit snail, u pon conviction, be
pjr.ished by a fine of not more than $10,COO per vio-
lation, or by imprisonment for net more than 6 months
Der violation, or bv both.
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Pace 11-10
t No.
9• Rgntention of Records
The Permittee shall retain records of all monitoring
information, including all calibration and maintenance
records and all original strip chart recording for
continuous monitoring instrumentation, copies of all
reports required by this permit, and records of all '
data used to complete the application for this permit,
for a period of at least 3 years from the date of the
sarople, measurement, report or application. This
period may be extended by request of the Director at
any time,
10 . Moni toring _R_ecords^
Records of monitoring information shall include:
a. The date, exact place and time of sampling or
roesurements r
b. The individual(s5 who performed the sampling or
measurements ;
c. The date(s} analyses were performed;
d. The individual(s ) who performed the analyses;
e. The analytical techniques or methods used? and
f. The results of such analyses.
11. Additional Monitoring by the Permittee
If the Permittee monitors any pollutant more frequently
than required by this permit, using test procedures
approved under 40 CFR 136 or as specified in this
permit, the results of this monitoring shall be in-
cluded in the calculation and reporting of the data
submitted in the Discharge Monitoring Rerort (DMR)
pursuant to Paragrpah II-D-5. Such increased frequently
shall also be indicated.
12„ Averaging of Measurements
Calculations for limitations which require averaging of
measurements shall utilize an arithmetic mean unless
otherwise specified in this permit.
SECTION D. R£ PORTING REQUIREMENTS
1 , • P1 annec _Changes .
The Permittee shall give notice to the "irectcr as soon as
DossiDle of any planned phvsical alterations or additions
to tne permitted facility." Notice is required only when:
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Page ll-ll
Permit No.
The alteration or addition to a permitted facility
may meet one of the criteria for determining whether
a facility is a new source in 40 CFR 122.29(b); or
!b} The alteration or addition could significantly change
the nature or increase the Quantity of pollutants
discharged. This notification applies to pollutants
which are subject neither to effluent limitations in
the permit, nor to notification requirements under
Paragraph II-D-9.
Di scharae
All discharges authorized herein shall be consistent with
the terr.s 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 this permit. An-y 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 at least ISO days
prior to comjnencement of such discharges, or if such
changes will not violate the effluent limitations speci-
fied in this permit, by notice, in writing, to the
Director of such changes. Following s^ch notice, the
permit nay be modified or revoked and reissued pursuant to
40 CFR §122.62(a) to specify and limit any pollutants not
previously limited.
Until such modification is effective, any new or increased
discharge in excess of permit limits or not specifically
authorized by the permit constitutes a violation.
3. Anticipated Koncompliance
The Permittee shall give advance notice to the Permit Issuing
Authority of any planned change in the oermitted facility
or activity which may result in noncomr-iance with permit
reouirements. Any maintenance of faci'-ties, which might
necessitate unavoidable interruption of operation and
degradation of effluent quality, shall ~>e scheduled during
noncritical water quality periods and carried out in a
manner approved by ,the Permit Issuing Authority.
4. Trans fer
(a) In the event of any change in control or ownership of
facilities from which the authorized discharge emanate,
the Permittee shall notify the succeeding owner or
controller of the existence of this permit by letter,
a copy of whirr, shall r>e forwards- to the Regional
Administrator anc the State water pollution control
aaencv.
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Permit No,
(b) This permit is nontransferable to any person except
after notice to the Director and compliance with
Paragraph II-D-4(c) below.
(I) Transfers by modification. Except as provided in
paragraph II-D-(4){c)(ii} below, a permit may be
transferred by the permittee to a new owner or
operator only if the permit has been modified or
revoked and reissued (under 40 CFR § 122 . 62(b)(2) ,
or a minor modification made (under 40 CFR
§122.63(d;)» to identify the new permittee and
incorporate such other requirements as may be
necessary under the Clean Water Act.
(ii) Automatic transfers. This permit may be auto-
matically transferred to a new permittee if:
(a) The Permittee notifies the Director at least
30 days in advance of the proposed transfer
date ;
(b) The notice includes a written agreement
between the existing and new permittees
containing a specific date for transfer
of permit responsibility, coverage, and
liability between them; and
(c) The Director does not notify the existing
Permittee and the proposed new permittee
of his or her intent to Codify-or revoke
and reissue the permit, A modification
under the subparagraph may also be minor
modification under 40 CFR §122,63. If
this notice is not received, the transfer
is effective on the date specified in the
written agreement.
5. Reporting of Monitoring Result's
Monitoring results obtained during the previous calender
(insert freaueney, i.e. - month or quarter) shall be sum-
marized for each month (each quarter if monitoring frequency
is quarterly) and must be reported on a Discharge Monitor-
ing Report Form (EPJ? No, 3320-1), postmarked no later than
the 28th day of the month following the completed reporting
period. The first report is due (insert date). Duplicate
signed copies of these, and all other reports required by
Section D of Part II, (Reporting Requirements) of this
• permit shall be submitted to the Director and the State at
the following addresses:
6 , Com cl_ i_ an c e £ ch edu_l e_s
Compliance schedule progress reports shall be submitted
in accordance with ParaGraph I-C-2,
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fermit No.
7. Twenty-Four Hour Reporting
The Permittee shall orally report any noncompiiance which
may endanger health or the environment, within 24 hours
from the time the Permittee becomes aware of the circum-
stances, A written submission shall also be provided
within 5 days cf the time the permittee becomes aware of
the circumstances. The written submission shall contain
a description, of the noncompliar.ee and its cause; the
period of noncompiiance, including exact dates and times;
and if the noncom pi iance has not been corrected, the
anticipated time it is expected to contin-ue, and steps
taken or planned to reduce, eliminate, and prevent re-
occurrence of the noncompliance. The Director may waive
the written report, on a case-by-case basis, when the oral
re port is made .
The following violations shall be included in the 24 hour
report when they might endanger health or the environment.
a. An unanticipated bypass which exceeds any effluent
limitation in this permit.
b. Any upset which exceeds any effluent limitation in
th is permi t.
c. violation of a maximum daily discharge limitation
for any of the following pollutants (any toxic
pollutant or hazardous substance, or any pollutant
specifically identified as the -ethod to control a
toxic pollutant or hazardous surstance.)
8 . Other none or. pi i a n ce .
The Permittee shall report all instances of noncompliance
not reported under Paragraphs II-D-S, 6, and 1 above at
the time monitoring reports are submitted. The reports
shall contain the information listed ir Paragraph II-D-7
above.
9 . Other in f_orrna t ion .
Where the Permittee becomes aware that :t failed to submit
any relevant facts in a permit application, or submitted
incorrect information in a perT.it appliration or in any
report to the Director, it shall promptly submit such
facts or information.
0. Chances in Discharces_of Toxic Substances
The ~erTittee shall notify the director as soon it knows
c r has reason t c relieve:
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Page 11-14
Permi t No.
a. That any activity has occured or will occur which
would result in the discharge, on a routine or
frequent basis, of any toxic pollutant (listed at 40
CFR 122, Appendix D, Table II and III) which is not
limited in the permit/ if that1 discharge will exceed
the highest of the following "notification levels":
(i) One hundred micrograms per liter (100 ug/1);
(ii) Two hundred rr.icrograms per liter (200 ug/1)
for acre-lain and aery loni tr i le ; five hundred
micrograms per liter (500 ug/1) for 2,4-
d i n i tro phenol and for 2-methyl-4,6 d i n i tro phenol ;
and one milligram per liter (1 mg/1 ) for antimony
(iii) Five (5) times the maximuni concentration value
reported for that pollutant in the permit
a ppl icati on ;
b. That any activity has occured or will occur which
would result in any discharge, on a non-routine or
infrequent basis, -'of a toxic polllutant which is
not limited in the perrr.it, if that discharge will
exceed the highest of the following "notification
level".
(i) Five hundred micrograms per liter (500 ug/1);
(ii) One milligram per liter (1 -g/1) for antimony;
(iii) Ten (10.) times ,the maximum concentration value
reported for that pollutant in the permit appli-
cation in accordance with 40 CFR § 122 . 21 ( g ) ( 7 ) .
1 1 . 0 u t y t o^ _P ; rp_v_i . d_e_ _I_n f o rmg t; i o n
The Permittee shall furnish to the Director, within a
reasonable time, any information which ^he Director may
request to determine whether cause exists for modifying,
revoking and reissuing, or terminating .his permit, or t'O
determine compliance with this permit. The Permittee
shall also furnish to the Director, upon request, copies
of records required to be kept by this permit.
12 , Signatory Requirements
%
a. All applications, reports, or information submitted to
the Director shall be signed and certified.
b. All perrr.it applications shall be signed as fellows:
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Page 11 - 1 5
Permit No.
(i) For a corporation: by a responsible corporate
officer. For the purpose of this section,, a"
responsible corporate officer means: (A) a
president, secretary, treasurer or vice-president
of the corporation in charge of a principal
business function, or any other person who per-
forms similar policy - or decision-making "func-
tions for the corporation, or (B) trie manager cf
one or more manufacturing production or cperatinc ..
facilities employing more then 250 persor.s or
having gross annual sales or expenditures exceed-
ing 25 million (in second quarter 1980 dollars),
if authority to sign documents has been assigned
or delegated to the manager in accordance with
corporate procedures.
(ii) For a partnership or sole proprietorship: by a
general partner or the proprietor, respectively;
or
(iii) For a municipality, State, Federal, or other
public agency; by either a principal executive
officer or ranking elected official. For pur-
poses of this section, a principal executive
officer of a Federal agency includes: (A) The
chief executive officer of the agency, or (B) a
senior executive officer having responsibility
for the overall operations of a principal
geographic unit of the agency.
All reports required; by this per~it and other
information requested by the Director shall be
signed by a person described in Daragraph II-D-
(12)(b) above or by a duly authorized representative.
A person is a duly, authorized representative only
i f :
(i) The authorization is made in -riting by a person
described in paragraph !I-D-:12[b) above;
(ii) The authorization specifies e . ther an individual
or a position having responsiii1ity for the
overall operation of the regulated facility or
activity, such as the positic'. of plant manager,
operator or a well or a well field, superintendent,
position of equivalent respor.sibility, or an
individual or position -having overall responsi-
bility for environmental matters for the company.
(A duly authorized representative may be either a
named individual or any individual occupying a named
position); and
liii1 The written a - tr. or : zat ior. is -ubrn it ted to the
Director.
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rage i j, - i t>
P e rm it No.
d. Changes is authorisation shall be made pursuant to
40 CFR §122.22(c) .
e. Certification, Any person signing a document under
Paragraphs II-D-10 shall make the following certification:
"I certify under penalty of law that this
document and all attachments were prepared
under the direction ctr supervision in accord-
ance with a system designed to assure that
qualified personnel properly gather and evalu-
ate the informat ion submitted. Based on my
inquiry of the person or persons who manage
the system, or those persons directly respon-
sible for gathering the information, the in-
formation submitted is, to the best of my
knowledge and belief, true, accurate, and
complete. I am aware that there are signifi-
cant penalties for submitting false information,
including the possibility of fine and imprison-
ment for knowing violations."
13. Availability of Reports
Except for data determined to be confidential under .40 CFR
Part 2, all reports prepared in accordance with the terms
of this permit shall be available for public inspection at
the offices of the Director. As required by the Clean
Water Act, permit applications, permits and effluent data
shall not be considered confidential.
1 4 . penalties for Fa Is i fieati_pn or Reports
The Clean Water Act provides that any person who knowingly
makes any false statement, re presentation, or certifi-
cation in any record or other document submitted or
required to be maintained under this permit, including
monitoring reports or reports of compliance or noncom-
pliance shall, upon conviction, be punished by a fine of
not more than 510,000 per violation, or by imprisonment
for not more than 6 months per violatic-. , or by both.
SECTION E. DEFINITIONS ^Suggested definitions not addressed in
40 CF'R Part 122)
1. Average - the arithmetic mean of values taken at the frequency
required fcr'each parameter over the specified period. For
total and/or fecal col:form, the average shall be the
aeometr ic mean.
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Permit No.
2. Mass/Dajv__Heas_ur e m e r. t s (The language in paragraph a, b, and
c may be included as an' alternative to the definitions
of average monthly, average weekly, and daily maximum
discharge limitations in §122.2).
a. The "average monthly discharge" is defined as the
total mass of all daily discharges sampled and/or
measured during a calendar month on which daily
discharges are sampled and measured, divided by
the number of daily discharges sampled and/or
measured during such month. It is, therefore, an
arithmetic mean found by adding the weights of the
pollutant found each day cf the month-and then divid-
ing this sum by the number of days the tests were
reported. This limitation is identified as "Daily
Average" or "Monthly Average" in Part I of the permit
and the average montly discharge value is reported
in the "Average" column under "Quantity" on the
Discharge Monitoring Report (DMR),
b. The "average weekly discharge" is defined as the total
mass of all daily discharges sampled and/or measured
during the calendar week on which daily discharges
are sampled and/or mesured during such week- It is,
therefore, an arithmetic mean found by adding the
weights of pollutants found each day of the week and
then dividing this sum by the number of days the
tests were reported. This limitaticn is identified
as "Weekly Average" in Part I of this permit and the
average weekly cisharge .value is reported in the
"Maximum" column under "Quantity" or. DMR,
c. The "maximum daily discharge" is the total mass
(weight) of a polluta-nt discharged coring a calendar
day. If only one sample is taken during any calendar
day the weight of pollutant calculated from it is the
"maximum daily discharge". This limitation Is identi-
fied as "Daily Maximum", in Pirt I cf this permit and
the highest such value recorded duri-g the reporting
period is reoorted in the "Maximum" rolurnn under
"Quantity" on the DMR.
d. The "average annual discharge" is defined as the total
mass of all daily discharges sampled and/or measured
durina the calendar year on which daily discharges
are sampled and/or measured during e~ch week. It is,
therefore, an arithmetic mean found ry adding the
weights of pollutants found each day of the year and
then dividing this sum by the number of days the
tests were reported. This limitation is defined as
"Annual Average" in Part I of this per™it and the
average annual discharge value is reported in the
"Averaoe" column ^ncer "Quantity" or. the DMR.
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Page 11-18
Pe rn i t No.
ConcerU.ration Measurements
a. The "average monthly' concentration", other than for
fecal coliform bacteria, is the sum of the concentra-
tions of all daily discharges sampled and/or measured
divided by the number of daily discharges sampled
and/or measured during such month (arithmetic mean
of the daily coentration values). The daily concentra-
ticn value is equal to the concentration of a composite
sample or in the case of grab samples is the arithmetic
mean (weight by flow value) of all the samples collected
during that calendar day. The average monthly count
for fecal coliforn bacteria is the geometric mean of
the counts for samples collected during a calendar
month. This limitation is identified as "Monthly
Average" or "Daily Average" under "Other Limits" in
Part I of this permit and the average montly concen-
tration value is reported under the "Average" column
under "Quality" on the DMR.
•b. The "average weekly concentration", other than for
fecal coliform bacteria, is the sum of the concen-
trations of all daily discharges sampled and/or
measured during a calendar week on which daily dis-
charges are sampled and measured divided by the number
of daily discharges sampled and/or measured during
such week (arithmetic mean of the daily concentration
values). The daily concentration value is equal to
the concentration of a composite sarpie or in the case
of grab samples is the arithmetic mean (weighted by
flow value) of all the samples collected during that
calendar day. The average weekly count for fecal
coliform bacteria is the geometric mean of the counts
for samples collected.during a calendar week. This
limitations is identified as "Weekly Average" under
"Other Limits" in Part I of this per-it and the average
weekly concentration value is reported under the
"Maximum" column under "Quality" on the DMR.
c. The "maximum daily concentration" is -he concentration
of a pollutant discharge during a calendar day. It is
identified as "Daily Maximum" under "Other Limits" in
Part I of this permit and the highest such value recorded
during the reporting period is reported under the
"Maximum" column ;under "Quality" on the DMR.
d. The "average annual concentration", other than for
fecal ccliform b-acteria, is the sum cf the concen-
trations of all daily discharges sampled and/or
measured during a calendar year on which daily dis-
charges are sampled anc measured divided by the number
of dsilv discharges sampled and/or measured during
such year (arithmetic mean of the daily concentration
The d a i 1 v concentration value is equal to
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Pern-lit No.
the concentration of a composite sample or in the case
of crab samples is the arithmetic mean (weighted by
flow value) of all the samples collected during the
calendar day. The average yearly count for fecal
coliform bacteria is the geometric mean of the counts
for samples collected during a calendar year. This
limitation is identified as "Annual Average" under
"Other Limits" in Part I of this permit and the -average
annual concentration value is reported under the
"Average" column under "Oualitv" on the DMR.
Other Measurements
a. The effluent flow expressed as ^3/day (HGD) is the 24
hour average flow averaged monthly. It is the arithmetic
mean of the total daily flows recorded during the
calendar month. Where monitoring requirements for
flow are specified in Part I of this permit, the flow
rate values are reported in the "Average" column under
"Quantity" on the DKR.
b. An "instantaneous flow measurement" is a measure of
flow taken at the tine of sampling, when both the
sample and flow will be representative of the total
d ischarge.
c. Where monitoring requirements for pH , dissolved oxygen
or fecal coliform bacteria are specified in Part I of
this permit, the values are generally reported in the
"Quality or Concentration" column c~ the DMR.
Types of Samples
Grab sample: An incividoa-1 sample of at least 100 milliliters
collected at a randomly-selected time over a period not
exceeding 15 minutes.
Composite sample: A combination of at least 8 sample
aliguots of at least 100 milliliters, collected at periodic
intervals during the operating hours of facility over a 24
hour period. The composite must be flow proportional:
either the time interval between each al:;uot or the volume
of each aliguct must be proportional to either the stream
flow at the time of sampling or the total stream flow since
the collection of the,' previous aliquot. Aliquots may be
collected manually or automatically. For GC/MS Volatile
Organic Analysis (VGA), aliquots must be combined in the
laboratory immediately before analysis. Four (4) (rather
than eight) aliquots cr grab samples should be collected
during actual hours cf discharge over a 24 hour period and
need not be flow proportioned. Only one analysis is
recu i red.
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Page i: - 20
Permit No.
Calculation of Means
a. Arithmetic Mean: The arithmetic mean of any set
of values is the summation of the individual values
divided by the number of individual values,
b. Geometric Mean: The geometric mean of any set of values
is the N'_^ root of the product cf the individual values
where N1 is ecual to the number cf individual values.
The geometric mean is equivalent to the antilog of the
arithmetic mean of the logarithms of the individ.ua!
values. For purposes cf calculating the geometric
mean, values cf zero (0) shall be considered to be one
( 1) .
c. Weighted by "low Value: Weighted by flow value means
the summation of each concentration times its respect-
ive flow divided by the summation of the respective
flows.
Calendar Day
A calendar day is defined as the oeriod from midnight of
one day until midnight of the next day. However/ for
purooses of this permit, any consecutive 24-hour period
that reasonably represents the calendar day may be used
for sampling,
Abfareviat ions
The following abbreviations, - when used, =re defined below.
cu. M/day or M^/day cubic meters per day
Fig/I " milligrams per liter
ug/1 micrograms per liter
Ibs/day pounds per day
kg/day kilograms per c.iy
Temp. °C temperature in degrees Centigrade
Temp, °F * temperature in degrees Fahrenheit
Turb. turbidity measured by the
Ne phelometric Method (NTU)
T:\~R or TSS total nonfi1terable residue or total
suspended solids
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Page 11-21
Permit No.
DO
BOD
TKN
Total K
NH3-N
total P
COD
TOC
Surfactant
pH
PCS
CFS
MGD
Oil & Grease
Total Cell form
Fecal Ccli form
ml/1
N02-N
N03-N02
C12
dissolved oxygen
five-day biochemical oxygen demand
unless otherwise specified
total Kjeldahl nitrogen as nitrogen
total nitrogen
a™monia nitrogen as nitrogen
total phosphorus-
chemical oxygen demand
total organic carbon
surface-active agent
a measure of the hydrogen ion
concentration
polych lor i nated biphenyl
cubic feet per second
million gallons per day
Freon extracta.le material
to.tal coliforrr bacteria
total fecal coliform bacteria
• mill iliter ( s ) oer liter
nitrate nitrogen as nitrogen
nitrite nitroge- as nitrogen
combined nitrate and nitrite
nitrogen as .- itrogen
total residual chlorine
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Page III-l
Pern it: No.
PART III
OTHER'REQUIREMENTS
SECTION A. GENERAL BEST MANAGEMENT PRACTICES CONDITIONS
1 . BMP plan
For purposes of this part, the terms "pollutant" or
"pollutants" refers to any substance listed as toxic under
Section 307(a)(l) of the Clean Water Act, oil, as defined
in Section 311(a}(l) of the Clean Water Act, and any
substance listed as hazardous under Section 311 of the
Clean Water Act. The Permittee shall develop and implement
a Best Management Practices (BMP) plan which prevents, or
minimizes the potential for the release of pollutants
(may want to limit to hazardous or toxic pollutants) from
ancillary activities, including material storage areas;
plant site runoff; in-plant transfer, process and material
handling areas; loading and unloading operations, and
sludce and waste disposal areas, to the waters of the
United States through plant site runoff; spillage or leaks;
sludge or waste disposal; or drainage from raw material
storage.
2. ImplementatIon
The plan shall be developed within six rrr.ths after the
effective date of this permit and shall ze implemented as
soon as practicable but not ,later than 1: months after the
effective date of this permit.
3. General Requirements
The BMP plan shall:
a. Be documented in narrative form, and shall include any
necessary plot plans, drawings or mars. ;~-
b. Establish specific objectives for the control of pollutants
(i) Each facility component or system shall be examined
for its potential for causing a release of signifi-
cant amounts of pollutants to waters of the United
States due t*c equipment failure, improper operation,
natural phenomena such as rain cr snowfall, etc.
Where experience indicates a reasonable potential
for eauipme".t failure (e.g., a tank overflow or
leakage}, natural condition (e.c., precipitation),
or c t h 8 ** c i r c — ™ stances to result in sicnificant
3-nc^r.ts of DDllu-tants reaching surface waters,
-;he plan shc^ 1 c induce a prediction c f the
direct ion, rate of flow and total quantity of
pollutants which could be dischiraec from the
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Page
Permit No,
facility as a result of each condition or
ci rcumstance.
c. Establish specific best management practices to meet
the objectives identified under Paragraph III-A-3{b),
addressing each component or system capable of causing
a release of significant amounts of pollutants Co the
waters of the United States, and identifying specific
preventative or remedial measures to be implener,ted,
d. Include any special conditions established in Paragraph
I1I-B of this permit.
e. Be reviewed by plant engineering staff and the plant
manager,
4. Specific Requirements
The plan shall be consistent with the general guidance
contained in the publication entitled "NPDES Best Manage-
ment Practices Guidance Document" (June, 1981) and shall
include the following as a rr.inimum:
a. BMP Committee
b. Reporting of BMP Incidents
c. Risk Identification and Assessment
d. Employee Training
e. Inspections and Records
f. Preventive Maintenance
g. Good Housekeeping
h. Haterials Com pat ibi 1 i ty_,
i. Securi ty
5. EPCC Plans
The BMP plan may reflect requirements fcr Spill Prevention
Control and Countermeasure (SPCC) plans under section 311
of the Act and 40 CFR Part 151, and may incorporate any
part of such plan into the BMP plan by reference,
6. Hazardous Waste Management
The Permittee shall assure the proper management of solid
and hazardous waste in accordance with regulations promul-
gated under Solid Waste Disposal Act, as amended (RCRA)
(40 U.S.C. 6901 et.'seq). Management practices required
under RCRA regulations shall be referenced in the BMP
pi an,
7. Docunentat ion
The permittee shall maintain a description cf the B.M.P plan
at the facility and shall make the plan available to the
Director upon recuest.
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Page III-3
Perinit No.
8 «, BMP Plan.
The permittee shall amend the BMP ".'pi an whenever there is a
change in th«_. facility or change 'in the operation of the
facility which materially increases the potential for
ancillary activities to result in a discharge of significant
amounts of pollutants.
9 . Mod i f icaj^ijpn for Inef f ec_tiveness
If che BM? plan proves to he ineffective in achieving the
general objective of preventing the release of significant
amounts of pollutants to surface waters and the specific
objectives and retirements under paragraphs III-A-3(b) and
(c), the permit and/or the BMP plan shall be subject to
modification to incorporate revised BMP requirements.
SECTION B. SPECIFIC BH'P-' CONDITIONS (Sample Conditions)
' ~~r ~*~~ .. i/">» ~ " '"* "•" i
1. All process waste, and surface runoff from process areas
subject to spills or leaKs of raw materials or products
containing toxic or hazardous materials, shall be contained
and :directed to the waste treatment plant or polishing
Storage of wastewater treatment sludges, polishing pond
dredgings and chrome treatment sludges shall be managed to
minimize the potential for release of toxic or hazardous
substances to navigable waters. Storage areas shall be
graded to prevent run-on of surface runoff from adjacent
areas and to prevent accumulation or ponding of precipitation
in the storage areas. Management practices shall be de-
signed to minimize infiltration of precipitation into sludge
storage piles and to minfmlze leachate. Surface runoff and
leachate from storage areas shall be conveyed to the final
polishing pond through the existing storm drainage system.
These management conditions are baaed upor, the classifi-
cation of stored sludges and dredgings as non-hazardous
materials under applicable regulations for hazardous
wastes (40 CFR Parts 260-265). Should any changes in the
constituents of the materials being stored or in the de-
finition of hazardous wastes result in the stored wastes
or leachate from the storage piles meeting the definition
of a hazardous waste, ;the Director shall be notified and
the Permittee shall make the necessary changes in management
practices to comply with applicable State and federal
regulations for storage of hazardous wastes.
The existing "land farm" area for land disposal of waste-
water treatment sludges located north of r.he sludge storage
'area shall be managed to minimize the potential for release
of toxic or hazardous substances to navic=bie waters,
Surface runoff from adjacent, areas shall ":e diverted around
the disposal area. Surface runoff from t.-.e disposal area
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Page III-4
'Permit No,
shall be conveyed to the storm drainage system tributary
to the final polishing pond. Surface runoff from the
disposal area shall not be allowed to1discharge through
Outfall I . -, . •
4. All drums containing hazardous substances r,ow stored .west
of the cooling towers shall either be removed' from the
plant site within 120 days or shall be nana-ged in a storage
£' area meeting the interim status standards ~c& its RCPJ^. permit
requirements for storage of hazardous wastes in containers.
.(-See 40 CFR 262.34 and Subpart I of Parts 264 and 265.)
All other containers that have held hazardous wastes shall
either be triple rinsed or otherwise managed so that they
meet requirements for exclusion as a hazardous waste.
S_ECT;i_OK _C . ~ IOMOKI TOR I KG
1. The Effluent Toxicity limitation contained in Part l"is the
allowable acute toxicity and is expressed" as the minimum
LC-50 in percent effluent (the LC-50 is. the concentration of
effluent estimated to result in mortality to fifty percent
of the test organisms). The required test organism is the
fathead r.innow ( Pi me ph_a _le_s prome las ) tested over 96 hours
in accordance with Methods for Measuring ti^e Acute Toxicity
of Effluents to Aquatic OrcanTsjms^ EPA^6 00? 4 --18 - 0 12 , ~~~^~~~^
Revised July 1978.
2. The Permittee shall conduct monitoring or effluent toxicity
once per month. One grab sample shall be collected and
tested within 36 hours of collection. Results shall be
reported as the 96-hr LC-50/ Any test tr.at does not meet
quality criteria as described in the above referenced
methods shall be repeated using a freshly collected sample
as soon as practicable.
If effluent toxicity exceeds the limitation in Part I, the
Permittee shall submit, if requested by tne Director,
within 45 days a plan and schedule for conducting a toxicity
reduction evaluation. The toxicity reduction evaluation,
when completed, shall determine how the Permittee csn
achieve the effluent toxicity limitation including an
implementation schedule. After approval ~ £ the plan by
EPAr the Permittee shall conduct the evaluation within the
specified time frames. Upon completion c~ the toxicity
reduction evaluation.,, this permit may be Codified, or
alternatively revoked and reissued, in order to incorporate
appropriate permit conditions and compliance schedules.
EICTION D. OTHE:?.
-v
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