W7

; The regulations do not change very much the
initial steps in the process of securing a
permit, e.g. submittal of an application for a
permit, preparation of fact sheets, circulation
of fact sheets and other information, and prepara-
tion of the draft permit. The regulations,

do however, lay out in more detail than previously
what information must be contained in the fact
sheets (§§124.42 and 124.63) and the requirements
for circulation of information on proposed
permits to other interested Federal agencies
(such as Corps of Engineers and the Fish and
Wildlife Service) and State agencies (§§124.21-23
and 124.31-34) The regulations also require that
all permit decisions be made only on the basis of
a formal administrative record developed during
the process of permit formulation and issuance
(§124.44). Materials to be included in the
administrative record are laid out (§§124.44 and
124.64).

After the initial stages of permit processing
(through issuance of a draft permit) the regulations,
in new provisions, provide two different sets of
procedures for appealing permit terms and conditions:
one will be more formal and adversarial in nature;
the other less so, in accord ance with the terms
of the Federal Administrative Procedures Act for
cases of “initial licensing." These procedures
apply only to EPA issued permits. Appeals on NPDES
permits issued by States follow State law.

The more formal appeal procedures are very
similar to that outlined in previous regulations.
Following opportunity for public notice and
comment on the draft permit (§124.51) and the
issuance of a proposed permit (§124.61), any
interested person has the opportunity to request
a full evidentiary hearing to challenge the
permit terms. The process of the evidentiary
hearing is very similar to that formerly employed,


an)

permits. Concentrated separate storm sewers are
those which are designated by EPA or a State,
e.g. when effluent guidelines are promulgated for
separate storm sewers in a category, section 208
plans contain controls for separate storm sewers;
or EPA or a State determines that a separate
storm sewer is a significant source of pollution
(§122.45).

6. Silvicultural Activities - Silvicultural
point sources requiring individual NPDES permits
are limited to the following: (1) a discernible,
confined, discrete conveyance related to rock
crushing, gravel washing, log sorting, or log
storage facilites or (2) activities designated by
EPA or a State to be a significant contributor to
pollution (§122.46).

7. New Sources - New source means any
facility or installation from which there may be
a discharge of pollutants which coinmences
construction after Performance Standards under
section 306 of the Clean Water Act are {1)
promulgated, or (2) proposed and promulgated
within 120 days of proposal [§122.3(t)]. Con-
struction activities which result in a new source
are: (1) construction of a source on a new
site or construction of a source totally replacing
an older facility or (2) modification of an
existing source by changing, replacing, or
adding to process or production equipnent.
Construction means (1) the beginning of a continuous
on-site construction program, including the
placement, assembly or installation of permanent
facilities or equipment for use in the source's
operation or significant site preparation work
or (2) the entering of a binding contractural
obligation for the purchase of permanent facilities
or equipment for the source.

The issuance of an NPDES permit to new
sources located in a State without NPDES permitting
authority may be a major Federal ~ction under


2l

requiring the preparation of an Environmental
Impact Statement under the National Environmental
Policy Act (NEPA), since that requirement applies
only to new sources.

2. Signatories to permit program forms
$122.5.
The proposed regulations have been drafted to
require that all corporate permit program forms
be signed by an executive officer of at least the
level of vice-president. In addition, persons
signing permit program forms must state that they
have made sufficient inquiries to certify the
veracity of the submitted information. These
provisions are important to assure accountability
on the part of corporate and municipal officials.

3. The permit as a limited authorization to
discharge §122.74(a).
In order to clarify the scope of the discharge
that is allowed by the NPDES permit, the proposed
regulations state the basic principle that
permittees may discharge pollutants for which
information was requested in the application only
as expressly provided in the permit. While
certain dischargers may contend that this principle
is unreasonable and unduly burdensome, we believe
that it is a necessary response to (1) past
uncertainties as to the coverage of a permit and
(2) recent Congressional criticism. Nevertheless,
efforts are now underway to assure that the
permit application implements this principle ina
fair and practical manner. (A revised permit
application will be available for public comment
within the next few months). There are two
approaches being considered; 1) applicants must
characterize the amount and nature of all pollutants
in their waste streams or 2) information will be
sought for specific pollutants (e.g., conventional,
toxic, hazardous, those cited in primary drinking



2

or EPA headquarters (attention: Edward Kramer,
U.S. EPA, EN-336, 401 M St., S.W. Washington,

D.C. 20460). Written comments should be submitted
to the same address by October 20, 1978. Due to
the length of the proposal, please organize your
comments by page number and section.

Table of Contents:

I. Background page 2
II. Summary of Proposed

Regulations page 5

III. Detail of the Provisions page 7

A. Part 122 page 7

B. Part 123 page 13

C. Part 124 page 16

D. Part 125 page 19

IV. Major Issues page 20

I. Background

The EPA is proposing new regulations for
the permit programs for three. purposes:

o to clarify and improve existing program
regulations and procedures in light of
past experience;

o to fill in significant gaps in coverage
under the existing regulations, particularly
in response to court decisions and the
emerging emphasis on the control of toxic
and hazardous pollutants; and

o to make the regulatory changes which
are necessary under the 1977 amendments
to the Clean Water Act (P.L. 95-217).

It is important to keep in mind that
the language referred to throughout this guide is
proposed. The provisions are not final. The
purpose of the propesal is to suggest changes and


18

including requirements for requesting the hearing,
grounds for rejecting requests for admission of
additional parties, the admission of written
evidence, the opportunity to cross-examine
witnesses, and the handling of legal issues by
EPA's General Counsel.

There are, however, new provisions and
requirements in the process. They include: (1)
An affirmative obligation on the part of any
interested person to raise all arguments and
factual grounds supporting their position by the
close of the public comment period on the proposed
permit (§124.53) and the concommittant provision
that issues not raised during the public comment
period may not be raised during the evidentiary
hearing unless good cause for not raising it
previously can be shown (§124.76); (2) The
unavailability of an evidentiary hearing to
those dischargers subject to a general permit.
They should apply for an individual permit, which
can then be challenged in an evidentiary hearing
(§124.71); (3) Stays of contested terms of
permits (as designated by EPA) may be granted,
except for cases involving initial permit
issuance and permit modification (§124.61); (4)
Persons entitled to an evidentiary hearing may
appeal issues presenting important policy
questions directly to the Administrator or
Regional Administrator (§§124.101 et. seq.); (5)
The right to cross-examination is recognized,
but not automatically granted. The proponent of
cross-examination has the burden of justifying
its use. Also, EPA employees may be subject
to cross-examination, but only on factual issues
(§124.85); and (6) All evidence is to be submitted
in written form (§124.85).

EPA has taken advantage of a provision of
the Federal Administrative Procedures Act which
allows appeal decisions on initial licensing to


24

section 306 applies only to technology-based
permit requirements for covered pollutants, and
does not apply to more stringent water quality
standards or to coverage of additional pollutants.
Are these appropriate limitations on the use

of new source "protections"?

10. Designation of one State agency to
administer the 404 (dredge and fill) program
$123.3(b).

Although one agency must be the designated 404
permitting authority, local agencies may be able
to play a significant role in the planning

and control of activities subject to 404 permits
and in the review and consideration of applications
for 404 permits. Comments are solicited on the
nature of permissible State - local institutional
relationships in approvable State 404 programs.
For instance, if local agencies want to be
delegated State permitting authority. what
controls are necessary by the State agency to
ensure compliance with program requirements?

11. Memorandum of Agreement between Corps of
Engineers and State §123.3(h).
For the 404 (dredge and fill) permit program,
such an agreement seems required by the provision
for a "full and complete description" of a
proposed State program under section 404(g)(1).
Without an agreement between the State and the
Corps as to those waters for which each has
primary ‘permitting responsibility, there will be
needless duplication of administrative effort,
wasting scarce resources and burdening the
public with uncertainties in applying for permits
and delays in the processing of permit applications.
Comments are solicited.

12. Assurance of continued coordination of
State 404 with Federal and State statutes §123.82.
Tt is possible that section 404(h)(1)(H) of the



20

techniques may be applied under limited
circumstances to meet water quality standards,
however) (§125.2).

Criteria for granting various of the Clean
Water Act's variances are also outlined in this
Part, such as the "fundamentally different”
variance for BPT and BAT (§125.25) and criteria
for determinations of alternative thermal effluent
limitations under section 316(a) (§125.45).

Others are reserved for later treatment.

IV. MAJOR ISSUES

Although much of the proposed regulation is
new, we expect the majority of comments to be
concerned with the following provisions.

A brief description of the issue is presented,
along with a citation where the applicable
provision can be found in the proposal. Your
comments on these issués are especially solicited.

1. The definition of new source §122.3(t).
Facilities which commence construction after the
promulgation of applicable new source performance
standards are "new sources." However, as defined,
facilities which commence construction after the
proposal of applicable new source performance
standards would be considered new sources only if
those standards were published in final form
within 120 days of proposal. New facilities
which do not fall within these definitions would
be "new dischargers" but not "new sources."

These "new dischargers" (1) would not be able to
take advantage of the “new source" provision in
section 306 of the Clean Water Act which allows a
period of time during which no new performance
standards could be imposed (toxic controls and
technology-based standards could still be applied)
and (2) would not be "major federal actions"



15

sea, the contiguous zone or the oceans; (5)
discharges of toxic pollutants; (6) discharges
of hazardous pollutants; or (7) discharges
affecting the waters of a State other than the
One proposing the permit. For the section 404
Program, no waivers are allowed for the following
activities: (1) the discharge of toxic pollutants;
(2) the discharges of hazardous pollutants;

(3) discharges affecting the waters of a State
other than the one proposing the permit; (4)
discharges incidental to an activity which

has as its purpose the changing of the use of the
area, where the flow and circulation of waters
may be impaired or reduced; (5) discharges

into wetlands; or (6) proposed general permits
(§123.5).

Requirements for the processing, issuance,
and substance of permits issued by States are
laid out in detail in the regulations. In
general the requirements are the same as or
similar to those which EPA must meet in issuing
Federal permits. One of these requirements is
that maximum civil penalties and criminal fines
be comparable to similar maximum amounts
recoverable by EPA under the Clean Water Act.
In addition, civil penalties actually assessed
should be appropriate to the nature of the
violation, taking into consideration the amount
of environmental damage and the economic benefit
gained from delayed compliance ($123.72).

In addition, the regulations now require
that any State permit program have an approved
continuing planning process (section 208 and
303 water quality management and planning) at all
time consistent with the requirements of the
Clean Water Act (§123.82). States must also
have measures to protect against conflict of

interest in any member of a State board or body
which processes permits (§123.83).


7
DETAIL OF THE PROVISIONS:

A. Part 122 - Applicability of the NPDES
Program

Any discharge of a pollutant, including
discharges from Federal facilities (§122.3), into
waters of the U. S. without an NPDES permit
is unlawful, unless such discharge is explicitly
exempted from coverage of these regulations
(§122.2). Exemptions from the NPDES program
include: (1) discharge from vessels, except
rubbish, trash, or garbage, or discharges from
production vessels (such as mining vessels, _
seafood processing vessels, etc.); (2) discharges
of dredged or fill material regulated under
section 404, except where the primary purpose of
the discharge is the disposal of waste materials
rather than the changing of bottom elevation; (3)
certain discharges of pollutants into a Publicly
Owned Treatment Works (POTW); and (4) discharges
from agricultural or silvicultural activities
except from animal feeding operations, aquatic
animal production facilities, and silvicultural
point sources and to aquaculture projects (all of
these are further defined at a later point)
($122.4).

The proposed regulations also outline the
conditions and requirements an NPDES permit must
contain. The permit shall not be issued, if
among other things, it: (1) does not comply with
requirements of the Clean Water Act; (2) does not
comply with State requirements; (3) is objected
to by EPA (in the case of State-issued permits);
4) permits a discharge substantially impairing
anchorage or navigation; or 5) is inconsistent
with a section 208 plan (§122.13).

Permittees are authorized to discharge .
pollutants for which information was requested in
the permit application, only as expressly


DATE SUMMARY
43 FR 22160, Veto/Modification
May 23, 1978 procedures and criteria
(final in part, EPA will use when (1)
proposed in part) objecting to (vetoing)

State issued permits

and (2) requiring modifi-
cation of permits to
incorporate Best Available
Treatment (BAT) toxic
requirements.

Purpose of This Booklet

This booklet is designed to facilitate your
understanding of the proposed revisions. We have
tried to identify the major provisions and
issues here, and there is a more thorough discussion
covering all new aspects of the proposal in the
Preamble (pages 37078 to 37088 in the August 21
Federal Register). Your comments are solicited
on all aspects of the proposal, and in particular
on those issues raised in this guide. Below is a
list of the new titles, and a summary of the
proposed regulations. For those of you interested
in more detail, a description of the major
provisions and their location in the proposed
regulation (indicated by the number of the Part
and paragraph) follows.

Four new Parts of Title 40, incorporating
all of existing Parts 122, 123, 124, 125, and 402
will be established as follows:

o Part 122 National Pollutant Discharge
Elimination System

o Part 123 State Permit Program Requirements

o Part 124 NPDES Procedures
0 Part 125 NPDES Criteria and Standards


3

stimulate comment. Only after comments received
from any interested person or group have been
reviewed and appropriate changes made wil]
regulations be published in final form.

Existing Regulations

The existing regulations will continue to
govern the operation of the program during the
Proposal period. There are several revisions
to "existing regulations" which will be made
while these major revisions are pending. It is
necessary to move ahead with certain revisions
independent of the major revisions due to time
deadlines established by the Clean Water Act
Amendments of 1977 (CWA) and recent court decisions.

The following regulations, published in the
Federal Register, have been or will be incorporated
into existing regulations.

DATE SUMMARY
43 FR 17484, Section 301(h) of CWA
April 25, 1978 variance from secondary
(proposed) standards for qualifying

municipalities discharging
into marine waters

43 FR 21266, Section 301(i) of CWA provides
May 16, 1978 for an extension of com-
(interim final) pliance deadlines for
eligible municipalities
43 FR 27736, Sections 307(b) and (c) of CWA
June 26, 1978 require that pretreatment
(final) standards be established

to control the introduction
of non-domestic wastes into
publicly owned treatment
works


16

The process for EPA approval of both section
402 (§123.91) and 404 (§123.92) programs is laid
out in the regulation. This section includes
time constraints upon EPA's action and requirements
for public notice, comment, and hearings on the
State's program. Provision is also made in the
regulations for revision of approved State
programs (§123.101).

C. Part 124 - Procedures for EPA Decision-Making
Regarding NPDES Permits

Part 124 outlines the process for applying
for an NPDES permit, seeking a modification of an
existing permit, EPA decision-making on the
permit application, and administrative hearings
and appeals on the terms of the permit. The
regulations require all discharges that do
not now have a permit, that are expanding or
modifying existing facilities in such a way as to
be classified as a new source, or that have
expiring permits to apply to either EPA or, where
appropriate, the State, for an NPDES permit
(§124.11). Special procedures are set up for new
sources because of the NEPA responsibilities
concommitant with the issuance of new source
permits by EPA (§124.12).

The Clean Water Act authorizes a number of
variances from or modifications to effluent
limitation requirements, including, but not
limited to: alternative effluent limitations for
thermal discharges (§124.14); a variance based on
economic capability under section 301(c);

a variance based on environmental considerations
under section 301(g); and extensions of deadlines
under sections 301(i) and 301(k). The regulations
require that, to the extent possible, such
variances be requested at the time a permit is
applied for and lay out the procedures for such
requests.


6

serve as guidance for the section 404 program
pending the development of corresponding section
404 regulations (which will be proposed soon as
Part 126). Furthermore, the Part 123 regulations
describe actions which must be taken to conform
to the Clean Water Act amendments of 1977 in
States with previously approved NPDES programs.

Part 124 - Procedures for NPDES

This part establishes all the procedures to
be used by EPA and approved States for receiving
permit applications, writing draft permits
and soliciting public comment on them. In
addition, it establishes procedures to be used by
EPA for issuing final permits and holding
evidentiary hearings. (NPDES State procedures
for issuing final permits and providing appeals
of permit terms and conditions are not included
jin these regulations since State procedures are
established in accordance with requirements of
State law.)

Part 125 - Criteria and Standards for NPDES

Proposed Part 125 contains the particular
requirements or standards which must be applied
by EPA or approved States in making certain
permit determinations. Often these determinations
(e.g., concerning variances from or the application
of EPA promulgated guidelines) must be made in
the course of permit modification or issuance.
Most of these items have not been previously
incorporated into regulations. Some are still
under development and will be proposed at a later
date.


22

water standards, etc.). Comments are solicited
concerning these approaches, test methods,
screening mechanisms and methods for applying
these requirements.

4. Bypass and upset provision §122.14(1)
and (m).
For the first time in regulations, the proposed
revisions specify when and under what conditions
bypass and upset incidents are permissible
and do not constitute permit violations. Bypass
or diversion of wastes from any portion of the
treatment facilities is allowed only where
necessary to prevent loss of life, serious
injury, or severe property damage and when there
are no feasible alternatives to bypass. Similarly,
upset or exceedance of permit limitations for
reasons beyond the control of the permittee is a
possible defense to an enforcement action
if certain demonstrations can be made by the
discharger. Some dischargers may view the
limitations on bypass and upset as overly restrictive.
Should bypass or upset be allowed under other
conditions? Should bypass or upset be further
restricted, and if so, how?

5. Retention in reissued permits of existing
permit limits more stringent than subsequent
uidelines §122.15(j).
Although this provision is limited to circumstances
where the more stringent permit limits were
actually achieved or achievable and is intended
to prevent “back-sliding” in pollution control,
it may be subject to objection by affected
industrial dischargers. Should the limits
established by published effluent guidelines be
used uniformly, that is without regard to past
pollution control performance?

6. Calculation of effluent limitations §122.16(a).
Effluent limitations must be calculated for each
outfall or discharge point of a permitted facility.



Reviewing Proposed Permit Regulations

A Citizen’s Guide
August 1978



9

In addition, where applicable, permits

should be consistent with other requirements of
Federal law, including, but not limited to the
following: Executive Order 11990 (Protection of
Wetlands), Executive Order 11988 (Preservation of
Floodplains), the Wild and Scenic Rivers Act, the
National Historic Preservation Act, the Land and
Water Conservation Act, the Endangered Species
Act, and the Coastal Zone Management Act (§122.49).

Permits are to be written for a term not to
exceed five years. (§122.12). They may be
modified under certain circumstances, as described
in the regulations, but no modification may
extend the permits beyond the five-year term
(§122.31). Cause of modification includes, among
other things: violation of permit requirements
(permit may be made more stringent only); failure
to disclose fully all relevant information;
reduction or elimination of the discharge;
information indicating the discharge poses a
_threat to human health or welfare; failure to
allow inspection or monitoring; material and
substantive alterations or additions to discharger's
operation; certain instances of judicial remand
or EPA withdrawal or revision of effluent limita-
tions or standards; modifications specifically
allowed by the Clean Water Act; or modifications
to implement EPA's toxic pollutant control
program (§122.31).

Certain categories of discharge are subject
to special provisions and conditions under the
NPDES program. Briefly, they include the
following: '

1. Disposal of Pollutants into Wells and
POTW's - States with NPDES authority must control

the disposal of pollutants into wells and
POTW's to protect human health and welfare and to
prevent pollution of ground and surface water.



8

authorized by the permit. To implement this
requirement, EPA will be developing new application
and permit forms which will be available for
public comment in the near future. Al] discharges
must be in accordance with permit terms. Permits
provide for EPA or State inspection and monitoring
and require dischargers to inform EPA or the
State in writing of instances of noncompliance
with permit requirements. Disposal of sludge,
solids, filter, backwash, or other pollutants
removed in the course of treatment to prevent
entry of the pollutants into the water is to be a
condition of the permit. In addition, strict
conditions, including notice requirements, are to
be included in permits to control bypass or
diversion of wastes from treatment require-

ments and incidents of treatment facility “upset”
($122.14).

Permits are to include all applicable
limitations and standards under the Clean Water
Act, including effluent standards or prohibitions
and pretreatment standards under section 307.
Permits for POTWs shall include requirements for
a local pretreatment program including notice
to EPA of new discharges and identification of
all significant sources of pollution. Some of
the other permit requirements are: (1) any
conditions reasonably necessary for the achievement
of effluent limitations, including conditions
imposed by EPA as part of a construction grant;
(2) any more stringent requirements needed to
meet State requirements, State water quality
standards, comply with requirements of section
208 plans, comply with variance provisions, or
meet downstream quality requirements; (3) conditions
for sludge disposal under section 405, and (4)
best management practices to control toxic and
hazardous pollutants from on-site industrial
activities under section 304(e). With limited
exceptions, permit conditions are to be at least
as stringent as those of previously issued
permits (§122.15).


SUMMARY OF PROPOSED REGULATIONS:

Part 122 - National Pollutant Discharge Elimination
System

Proposed Part 122 establishes the basic
“program definition" of the NPDES, whether
administered by EPA or an approved State. This
part covers the full range of substantive program
requirements, spelling out in detail who must
apply for a permit; how a permit is issued; what
terms, conditions, and schedules of compliance
‘must be incorporated into permits; when and how
monitoring and reporting of permit compliance
must be performed; when permits may be revised or
reissued; and what special requirements apply to
certain types of dischargers.

Part 123 - State Permit Program Requirements

Proposed 40 CFR 123 establishes guidelines
specifying what the Administrator will require
before approving State permit programs under
sections 318 (aquaculture), 402 (NPDES), 404
(dredged or fill material), or 405 (sewage
sludge) of the Clean Water Act.. In addition, the
regulations outline the process of State program
approval and revision. Permit programs under
sections 318 and 405 may not be approved independent
of section 402 permit programs and must be
incorporated into all such programs. No partial
program approvals will be granted. Particular
substantive and procedural requirements of
proposed 40 CFR Parts 122, 124, and 125 are
incorporated by reference for programs under
NPDES (i.e., sections 318, 402, and 405) and


19

be made on the basis of procedures much less
adversarial than the formal hearings otherwise
required. Thus, under the new regulations, the
following appeal procedure can be followed for
permit issuance to new permittees and "first
time" permit determinations: (1) Following
notice and an opportunity to submit written
comments (§124.112), a less formal panel hearing
may be requested on the permit terms (§124.113);
(2) Written comments are to be filed prior to the
hearing, and in response, EPA is to file written
reply comments, the administrative record, etc.,
(§124.117); and (3) An EPA panel, consisting of
EPA employees having special expertise on the
permit issues shall participate along with an
Administrative Law Judge (the Presiding Officer).
The panel may question any person participating
in the hearing, including those requested to
appear, and a verbatim transcript shall be made
of the hearing; (4) Requests for cross-examination
on any disputed issue of material fact may be
made. It may be granted or alternative methods
of clarifying the record may be designated
(§124.119).

D. Part 125 - Criteria and Standards for the
National Pollutant Discharge

Elimination System

Part 125 lays out the criteria and standards
EPA will consider in writing substantive requirements
into permits. Many subsections of this part have
been reserved for later developments. Part 125
states that the technology-based requirements of
the Clean Water Act are the minimum level of
control that must be imposed in an NPDES permit
(§125.2). The technology-based requirements
are to be applied prior to or at the point of .
discharge and may not be satisfied by non-treatment
techniques such as flow augmentation. (Non-treatment



25

Clean Water Act which requires "continued coordi-
nation with Federal and Federal-State water
related planning and review processes" may
require that States ensure compliance with some
or all of the statutes and executive orders
listed in the Corps regulations. Comments are
solicited.

13. Revision of existing State NPDES programs
§123.5(c) and $123,101 - 103.
Under the proposed regulations, revision of
existing State NPDES programs would be required,
if necessary, to conform to the Clean Water Act
Amendments of 1977 and other requirements in
these regulations (e.g. the listing of permits
for which EPA may not waive review).

14. Permit support documents: fact sheets
and administrative record $124.43, .44, .63, and .64.
Under the proposed regulations, a fact sheet
describing the legal, technical and policy basis
for permit terms and conditions would be required
for each permit, and all permit determinations
would be required to be based upon a defined
administrative record under the supervision of a
designated Record Clerk. Currently these permit
support documents may not be prepared or may be
prepared in different form in both NPDES States
and EPA Regions. Will these documents facilitate
the participation by interested persons in the
formulation of proposed permits?

15. Obligation to raise issues and
factual grounds prior to an. evidentiary hearing
3124.53 and .76.

Under the proposed regulations, new issues and
factual grounds not raised during the public
comment period could be raised in an evidentiary
hearing only where good cause was shown. This is
to avoid unnecessary delays in final permit
issuance. Although public interest groups are



CITIZEN'S GUIDE TO REVIEWING THE
PROPOSED PERMIT PROGRAM REGULATIONS

INTRODUCTION:

On August 21, 1978, the Environmental
Protection Agency (EPA) proposed revised regulations
to govern the permit programs established under
the Federal Water Pollution Control Act of 1972,
as amended by the Clean Water Act of 1977. (collec-
tively referred to as the Clean Water Act). The
major program addressed by the regulations is the
National Pollutant Discharge Elimination System
(NPDES) under section 402. Certain provisions
also will affect the program for the control of
the discharge of dredged or filled material under
section 404. Both programs require a permit to
be obtained before the discharge of pollutants.
Section 402 permits are to be issued by EPA and
section 404 permits by the Secretary of the
Army (acting through the Corps of Engineers).

In both cases, qualified States may assume
permitting authority, provided certain conditions
are met. These proposed regulations outline

the conditions under which an NPDES permit

is required, identify the required content of
NPDES permits, set forth the procedures for
issuance of NPDES permits, and outline the
requirements States must meet in order to

assume permitting authority under either section
402 or 404.

The proposed regulations were published
in the Federal Register (43 FR 37078,
August 21, 1978), pages 37078 to 37134. Copies
of the proposal may be obtained from Government
Printing Office bookstores, EPA Regional Offices,


12

the National Environmental Policy Act (NEPA)
requiring an environmental review pursuant to
NEPA, including, where appropriate, the preparation
of an Environmental Impact Statement (EIS). No
on-site construction may begin until after
issuance of a final EIS or until 15 days after
issuance of a negative declaration unless the
construction is approved by EPA and is determined
not to cause significant adverse environmental
impact. Where an EIS recommends denial of the
permit, the permit shall be denied. Where the
EIS recommends the imposition of conditions, the
permit shall not issue unless the permit applicant
agrees as a condition of the permit to take the
actions recommended by the EIS.

New sources, as defined by these regulations,
which meet applicable New Source Performance
Standards (NSPS) are not subject to more stringent
technology-based standards for the shortest of
the following periods: ten years from completion
of construction, ten years from the beginning
of a discharge, or the period of depreciation or
amortization under the Internal Revenue Code.

This protection from more stringent standards
does not apply to non-technology-based standards
(such as water quality standards) and any effluent
limitations controlling a pollutant not covered
in the NSPS, including toxics (§122.47).

8. Non-compliance Reporting - The proposed
regulations also require that EPA or States with
permit-issuing authority compile and make available
to the public Quarterly Non-Compliance Reports.
This,report is to contain narrative information
of the following sort for major permittees: (1)
failure to complete construction requirements by
the date specified in the permit; (2) failure to
provide complete compliance schedule reports; (3)
noncompliance with discharge requirements
where the permittee has not returned to compliance



14

submissions must therefore meet the requirements
of sections 318 and 405 for EPA approval under
section 402. The requirements and procedures for
EPA approval of a State's program under section
404 are, however, separate from although similar
to those for approval under section 402.

A State program will not be approved if the
State does not have all the necessary authority
and resources and does not agree to implement
all the requirements of the program. No partial
program approvals will be granted. After approval
the States are required to conduct their programs
at all times in accordance with statutory require-
ments, guidelines, and regulations (§123.1).

In order to obtain EPA approval, a State
must submit to EPA a full and complete description
of each program it proposes to administer
(§123.3) plus a statement from the State's
attorney general that the State's law provides
adequate legal authority to carry out and meet
the requirements of these regulations (§123.4).

Prior to approval of the States's program,
EPA and the State will sign a Memorandum of
Agreement describing the manner in which the
permit program will be administered by the State
and reviewed by EPA. This agreement is to be
reviewed and revised as necessary, but at least
once every three years. The memorandum is to ~~
include a statement concerning EPA's waiver of
authority to review permits proposed to be
issued by the state. For the NPDES program, no
waivers are allowed for the following activities:
(1) discharges from publicly owned treatment
works (POTW's) exceeding 0.5 million gallons per
day (MGD) (2) discharges of unpolluted cooling
water exceeding 1 MGD: (3) all other discharges
above 0.1 MGD; (4) discharges into the territorial


Page Intentionally Blank


23

It has been suggested that this requirement be
interpreted in such a way that, for a given

plant, the sum of effluent limitations on all
outfalls could be re-allocated among the outfalls.
Thus, some outfalls could receive effluent
limitations more stringent, and some less stringent,
than would be required if technology based limits
were applied to each outfall. Should a facility's
discharges be looked at as a whole or on an

outfall by outfall basis?

7. Extension of expiring permits under the
Administrative Procedure Act taPRY $122.33.
The proposed regulations limit the availability
of autdmatic extensions of expiring permits to
circumstances where delay is not caused by the
permittee, and authorizes the denial of an
extension where the discharger is not in compliance
with the expiring permit. These limitations are
implicit in the APA, but may be subject to
objection by dischargers, particularly those who
anticipate delay in permit reissuance due to
evidentiary hearings. Under what circumstances
should expiring permits be extended automatically?

8. Adjustment of permit limits to reflect
disposal in a deep well or to a publicly owned
treatment works $122.41.

The proposed regulations would allow permit
limits to be tightened to reflect these two kinds
of disposal, i.e., effluent limits would be
based upon the flow and pollutants actually
discharged to waters of the United States. This
provision will assure that pollution controls
are applied equitably.

9. New source coverage §122.47-.
The proposed regulations clarify for the first

time: (1) when existing sources may become new
sources based upon new construction and (2)
that the new source "protection period" under -



United States Office of Water
Environmental Protections, Enforcement (EN 335)
Agency Washington OC 20460

August 1978

Reviewing Proposed
Permit Regulations

A Citizens Guide


26

not always equipped to participate in permit
proceedings at an early stage, the "good cause"
exception may be interpreted more stringently
in the case of the permit applicant than for
public interest groups, to compensate for this
disparity in relative access to information.

16. Criteria for fundamentally different

factors variances $125.25 - .27.

For the first time in regulations factors which
may be considered fundamentally different from
those used in the development of an effluent
limitations guideline are set forth. One or more
of these factors may justify the granting of a
variance from guideline limitations. Comments on
these factors are requested.

Permits Division
Office of Water Enforcement
Environmental Protection Agency


10

Permit effluent limitations must be adjusted and
made more stringent to reflect disposal of part
of a waste stream into a well or POTW (§122.41).

2. Animal Feeding Operations - Individual
permits are required for Concentrated Animal
Feeding Operations, which are defined as feeding
operations (animals confined for at least 45 days
out of 12 months and no crops, vegetation, forage
growth or post-harvest residues are sustained):
(1) supporting more than 1,099 animal units; (2)
supporting more than 300 animal units plus either
pollutants discharged into a stream thru a
man-made ditch or pollutants discharged directly
into a stream running through the operation or
(3) designated a significant contributor of
pollution by EPA or the State after an on-site
inspection. All other Animal Feeding Operations
will be covered by general permits (§122.42).

3. Aquatic Animal Production Facility -
Individual permits are required for Concentrated
Aquatic Animal Production Facilities, which
are defined as a fish farm, hatchery, or other
facility: (1) producing more than 20,000 pounds
of aquatic animals per year or (2) designated
by EPA or a State as a significant contributor of
potiution, All other Aquatic Animal Production
Facilities will be covered by general permits
(§122.43).

4. Aquaculture Projects - Under section
318, discharges to aquaculture projects require
an NPDES permit. They are defined as managed
water areas which use the discharge of pollutants
for the maintenance of production of harvestable
freshwater, estuarine, or marine plants or
animals (§122.44).

5. Separate Storm Sewers - Concentrated
separate storm sewers are subject to individual

permits; all others are subject to general


13

within 45 days or where a pattern of non-compliance
(e.g., violation of the same standard or limitation
in two consecutive quarters) is established; (4)
failure to report effluent data as required in

the permit or (5) submission of a deficient
report.

The narrative information is to include: (1)
name, location, and permit number of the violator;
(2) brief description and date of each instance
of noncompliance; (3) brief description, including
date, of enforcement action taken; (4) status of
the noncompliance; and (5) description of mitigating
circumstances. Separate lists are to be provided
for municipal, non-municipal and Federal permittees
and listings are to be in alphabetical order by
the name of the permittee.

Statistical information is to be compiled
for all instances of non-compliance by major
permittees not reported narratively. Statistical
compilation is also required for all minor
permittees whose compliance has been reviewed.

In addition, a separate list shall be provided
annually for minor permittees a year or more
behind on their construction schedules (§122.23).

B. Part 123 - Requirements for State Assumption
of Permit Authority Under Sections
402 and 404

Part 123 outlines the requirements and
procedures for State assumption of permitting and
enforcing authority under sections 402 (NPDES
program) and 404 (control of the discharge of
dredged or fill material), for EPA approval of
State programs and for revisions to approved
programs. It should be noted that the section
402 NPDES program now includes permit requirements
under section. 318 (aquaculture projects) and 405
(disposal of sewage sludge) (§123.1). State NPDES