Vol. 81 Wednesday, 

No. 96 May 18, 2016 

Part III 

Environmental Protection Agency 

40 CFR Parts 122, 123, 124, et al. 

National Pollutant Discharge Elimination System (NPDES): Applications and 

Program Updates; Proposed Rule 


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31344 Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 122, 123, 124 and 125 

[EPA–HQ–OW–2016–0145; FRL 9936–62– 

OW] 

RIN 2040–AF25 

National Pollutant Discharge 

Elimination System (NPDES): 

Applications and Program Updates 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) proposes revisions to the 

National Pollutant Discharge 

Elimination System regulations to 

eliminate regulatory and application 

form inconsistencies; improve permit 

documentation, transparency and 

oversight; clarify existing regulations; 

and remove outdated provisions. This 

proposal would make specific targeted 

changes to the existing regulations and 

would not reopen the regulations for 

other specific or comprehensive 

revision. These proposed regulatory 

changes cover 15 topics in the following 

major categories: permit applications; 

the water quality-based permitting 

process; permit objection, 

documentation and process efficiencies; 

the vessels exclusion; and the Clean 

Water Act (CWA) section 401 

certification process. These revisions 

would further align NPDES regulations 

with statutory requirements from the 

1987 CWA Amendments and more 

recent case law requirements. By 

modernizing the NPDES regulations, the 

proposed revisions would provide 

NPDES permit writers with improved 

tools to write well-documented permits 

to protect human health and the 

environment. The revisions would also 

provide the public with enhanced 

opportunities for public participation in 

permitting actions. 

DATES: Comments must be received on 

or before July 18, 2016. 

ADDRESSES: EPA has set up two Dockets 

for submitting comments. Submit your 

comments on the NPDES Application 

and Updates rule to Docket ID No. EPA– 

HQ–OW–2016–0145 at http://

www.regulations.gov. Regarding 

potential future changes to application 

forms and information collection 

requirements, submit your comments to 

Docket ID No. EPA–HQ–OW–2016–0146 

at http://www.regulations.gov. Follow 

the online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit http://

www2.epa.gov/dockets/commentingepa-dockets. 

FOR FURTHER INFORMATION CONTACT: Erin 

Flannery-Keith, Water Permits Division, 

Office of Wastewater Management, Mail 

Code 4203M, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460; (202) 566–0689; 

flannery-keith.erin@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA is 

proposing targeted revisions to the 

NPDES regulations. These revisions 

would make the regulations consistent 

with the 1987 CWA Amendments and 

with applicable judicial decisions. 

These revisions would delete certain 

regulatory provisions that are no longer 

in effect and clarify the level of 

documentation that permit writers must 

provide for permitting decisions. EPA is 

also asking for public comments on 

potential ways to enhance public notice 

and participation in the permitting 

process. CWA section 402 established 

the NPDES permitting program and 

gives EPA authority to write regulations 

to implement the NPDES program. 33 

U.S.C. 1342(a)(1), (2). 

Table of Contents 

I. General Information 

A. Does this action apply to me? 

B. What action is EPA taking? 

C. What is EPA’s authority for taking this 

action? 

D. What are the incremental costs and 

benefits of this action? 

II. Background and Executive Summary 

III. Proposed Revisions 

A. Proposed Revisions to Part 122 

B. Proposed Revisions and Request for 

Comments to Part 123 

C. Proposed Revisions to Part 124 

D. Proposed Revision to Part 125 

E. Request for Comments 

IV. Impacts 

V. Compliance Dates 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low Income 

Populations 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

action are: EPA; authorized state, 

territorial, and tribal programs; and the 

regulated community. This table is not 

intended to be exhaustive; rather, it 

provides a guide for readers regarding 

entities that this action is likely to 

regulate. 

TABLE I–1—ENTITIES POTENTIALLY AFFECTED BY THIS PROPOSED RULE

Category Examples of potentially affected entities 

State, Territorial, and Indian Tribal Governments.States, Territories, and Indian Tribes authorized to administer the NPDES permitting program; States, 

Territories, and Indian Tribes that provide certification under section 401 of the CWA; States, Territories, and Indian Tribes that own or operate treatment works. 

Municipalities ........................................... POTWs required to apply for or seek coverage under an NPDES individual or general permit and to 

perform routine monitoring as a condition of an NPDES permit. 

Industry .................................................... Facilities required to apply for or seek coverage under an NPDES individual or general permit and to 

perform routine monitoring as a condition of an NPDES permit. 


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1Hereafter, the use of ‘‘state’’ includes states and 

territories unless otherwise noted. Tribes can apply 

to administer NPDES programs pursuant to 40 CFR 

123.32 and 123.33. Because no tribe has yet applied 

under these sections, this preamble does not 

specifically discuss tribes. The proposed rule would 

apply, however, to any tribal NPDES program 

authorized by EPA in the future. 

2The current suite of NPDES application forms 

can be found at http://www.epa.gov/npdes/npdesapplications-and-forms. 

3A tribe found eligible pursuant to § 123.32 to be 

treated in a manner similar to a state to administer 

the NPDES program. 4Authorized states are listed in http://

www.epa.gov/npdes/npdes-state-programinformation. 

If you have any questions regarding 

the applicability of this action to a 

particular entity, consult the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

B. What action is EPA taking? 

EPA is proposing targeted revisions to 

the NPDES regulations. These revisions 

would make the regulations consistent 

with the 1987 CWA Amendments and 

with requirements established by 

judicial decisions. These revisions 

would delete certain regulatory 

provisions that are no longer in effect, 

and clarify the level of documentation 

that permit writers must provide for 

permitting decisions. These revisions 

would also allow permit writers to use 

more consistent data for permitting 

decisions and would modernize 

opportunities for public notice and 

participation in NPDES permitting 

actions. 

C. What is EPA’s authority for taking 

this action? 

CWA section 402 established the 

NPDES permitting program and gives 

EPA authority to write regulations to 

implement the NPDES program. 33 

U.S.C. 1342(a)(1), (2). 

D. What are the incremental costs and 

benefits of this action? 

This proposal involves several 

revisions to the NPDES regulations. It is 

EPA’s view that these revisions would 

generally not result in new or increased 

workload or information collection by 

authorized states or the regulated 

community. The proposed fact sheet 

documentation requirements may 

impose only a minimal burden for the 

permit writer to document permit 

development analyses that he or she has 

already conducted. The assessment of 

impacts is provided for each topic in 

section IV of this proposal. 

II. Background and Executive Summary 

The Federal Water Pollution Control 

Act Amendments of 1972, commonly 

referred to as the Clean Water Act, were 

enacted to restore and maintain the 

chemical, physical, and biological 

integrity of the nation’s waters. CWA 

section 301 prohibits the discharge of 

any pollutant to waters of the United 

States except in compliance with certain 

sections of the Act, including CWA 

section 402. Section 402 established the 

NPDES permit program to be 

administered by EPA or authorized 

states, territories or eligible tribes.1 The 

NPDES permit program provides two 

types of permits, individual and general, 

that may be used to authorize point 

source discharges of pollutants to waters 

of the United States. Individual permits 

are issued by the state or EPA to a single 

facility and require submission of a 

permit application. General permits are 

developed by the state or EPA to cover 

classes or categories of dischargers 

under a single permit. General permits 

typically require facilities seeking 

permit coverage to submit a notice of 

intent (NOI) to be covered, the contents 

of which are described in the general 

permit. Both types of permits are issued 

for a fixed period of time not to exceed 

five years. CWA section 402(b)(1)(B) and 

40 CFR 122.46. 

Under the NPDES regulations, EPA 

has developed eight individual permit 

application forms for applicants seeking 

coverage under individual permits. 40 

CFR 122.21. Each individual permit 

application form corresponds to a 

different category of dischargers subject 

to permitting.2 After receiving an 

application for an individual permit, the 

permit writer reviews the application 

for completeness and accuracy. Once 

the permit writer determines that the 

application is complete, the permit 

writer uses the application data to 

develop the draft permit and either the 

fact sheet or statement of basis that 

explains the rationale behind the draft 

permit provisions. 40 CFR 122.21. 

The first major step in the permit 

development process is deriving 

technology-based effluent limits 

(TBELs). 40 CFR 122.44(a). The permit 

writer then determines whether, after 

application of the TBELs, the discharge 

will cause, have the reasonable potential 

to cause, or contribute to an excursion 

above a narrative or numeric criterion 

within a state water quality standard 

(WQS). If the permit writer determines 

that, notwithstanding application of 

technology-based limits, the discharge 

‘‘will cause, have the reasonable 

potential to cause, or contribute to an 

excursion above any [s]tate water 

quality standard,’’ the permit writer 

derives effluent limitations necessary to 

meet state WQS (i.e., water qualitybased effluent limits (WQBELs)). 40 CFR 

122.44(d)(1). The permit writer then 

includes final effluent limitations 

(TBELs and WQBELs) that implement 

all applicable technology and water 

quality standards in the permit. After 

developing the effluent limits, the 

permit writer develops and includes 

appropriate monitoring and reporting 

conditions and facility-specific special 

conditions. 40 CFR 122.43, 122.44(i), 

122.44(k) and 122.48. The permit writer 

also includes the standard conditions 

that are required for all NPDES permits. 

40 CFR 122.41 and 122.42. The permit’s 

fact sheet or statement of basis 

documents the decision-making process 

for deriving the permit limits and 

establishing permit conditions. 40 CFR 

124.7, 124.8 and 124.56. 

After the draft permit is complete, the 

permitting authority provides an 

opportunity for public participation in 

the permitting process. A public notice 

announces the availability of the draft 

permit and administrative record and 

gives interested parties an opportunity 

to submit comments and request a 

public hearing. 40 CFR 124.10 and 

124.11. After taking into account all 

significant comments raised during the 

comment period, the permitting 

authority develops the final permit with 

careful attention to documenting the 

process and decisions for the 

administrative record. The permitting 

authority then issues the final permit to 

the facility. 40 CFR 124.10, 124.15, and 

CWA section 402(b). 

Under CWA section 402(b), a state or 

eligible tribe 3 may obtain authorization 

to administer the NPDES permit 

program. In order to obtain 

authorization, the state or eligible tribe 

must demonstrate to EPA that it has the 

authorities and resources necessary to 

implement the program as outlined in 

CWA section 402(b) and as specified in 

an EPA/state memorandum of 

agreement (MOA). When EPA revises 

the NPDES regulations, authorized 

states may need to amend their own 

regulations and legal authorities to 

ensure their programs continue to be as 

stringent as the federal program. To 

date, 46 states and the Virgin Islands 

have obtained authorization to 

administer the NPDES permit program.4

In general, once a state is authorized to 

administer the program, EPA no longer 

conducts these activities. CWA section 

402(c) and 402(n). However, in 

accordance with CWA section 402(d), 

its implementing regulations at 40 CFR 

123.44, and the EPA/state MOA, the 

state must provide EPA with an 

opportunity to review certain permits, 

and EPA may object based on one or 

more of the causes identified in these 


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5Some tribes have EPA-approved water quality 

standards. See 40 CFR 131.8. 6U.S. EPA NPDES Permit Writers’ Manual; U.S. 

EPA, Office of Water, September 2010; EPA–833– 

K–10–001. (NPDES PWM) http://www.epa.gov/

npdes/pubs/pwm_2010.pdf. 

7U.S. EPA Technical Support Document for 

Water Quality-based Toxics Control, Office of 

Water, March 1991; EPA–505–2–90–001. http://

www.epa.gov/npdes/pubs/owm0264.pdf. 

8 Improving Our Regulations: Final Plan for 

Periodic Retrospective Reviews of Existing 

Regulations, August 2011, available at http://

www2.epa.gov/sites/production/files/2015-09/

documents/eparetroreviewplan-aug2011_0.pdf. 

regulations. If the state permitting 

agency does not satisfactorily address 

the points of objection within the 

applicable timeframe, exclusive 

authority to issue the permit passes to 

EPA. 40 CFR 123.44(h)(3). 

If a state or tribe does not have an 

approved NPDES program, EPA 

administers the NPDES program. Under 

CWA section 401, a federal agency may 

not issue a permit or license for an 

activity that may result in a discharge to 

waters of the United States until the 

state or tribe 5 where the discharge 

would originate has granted or waived 

section 401 certification. The central 

feature of section 401 is the state or 

tribe’s ability to either grant, grant with 

conditions, deny, or waive certification. 

EPA regulations establish permit 

application requirements and 

corresponding forms for use by all 

applicants for EPA-issued permits. 

Where a state chooses not to use the 

EPA forms, the state is responsible for 

developing and using its own forms; 

however, the state forms must collect all 

of the data that the EPA regulations 

require. 

EPA has developed several guidance 

documents to help permitting 

authorities manage the quality and 

consistency of NPDES permits. The 

NPDES Permit Writers’ Manual (NPDES 

PWM) 6 provides a comprehensive 

overview of the framework of the 

NPDES program and provides basic 

training on the requirements for the 

development and issuance of a legally 

defensible and enforceable NPDES 

permit. The NPDES PWM is also a 

resource for other stakeholders 

interested in the NPDES permitting 

process. 

The revised Technical Support 

Document for Water Quality-Based 

Toxics Control (TSD) 7 provides states 

and EPA Regional offices with guidance 

on procedures for use in the water 

quality-based control of toxic pollutants. 

The document provides guidance for 

each step in the water quality-based 

toxics control process, from the 

technical and regulatory considerations 

for the application of WQS to NPDES 

compliance monitoring and 

enforcement. 

This proposed rule addresses 

application, permitting, monitoring, and 

reporting requirements that have 

become obsolete or outdated due to 

programmatic and technical changes 

that have occurred over the past 35 

years. These topics were selected from 

previous NPDES regulatory streamlining 

efforts, recommendations from EPA 

Headquarters and Regional offices, and 

recommendations from state NPDES 

permitting agencies. With these 

proposed revisions and requests for 

public comment, EPA aims to allow 

easier determination of who is 

regulated, clarify applicable compliance 

requirements, and improve transparency 

by providing permitting authorities and 

the public with timely and quality 

access to information on regulated 

entities’ activities. These revisions 

would make specific, targeted changes 

to several sections of the NPDES 

regulations, and are not intended to 

reopen the regulations for other 

revisions. 

EPA identified this proposal in 

response to Executive Order 13563 

Improving Regulation and Regulatory 

Review in the document Improving Our 

Regulations: Final Plan for Periodic 

Retrospective Reviews of Existing 

Regulations (section 2.1.8). This effort is 

a ‘‘plan, consistent with law and its 

resources and regulatory priorities, 

under which the agency will 

periodically review its existing 

significant regulations to determine 

whether any such regulations should be 

modified, streamlined, expanded, or 

repealed so as to make the agency’s 

regulatory program more effective or 

less burdensome in achieving the 

regulatory objectives.’’ 8 The issues 

being addressed in this rulemaking 

directly align with the goals established 

in Executive Order 13563. 

The proposed rule covers 15 topics 

grouped into major categories of 

changes: Permit application 

requirements; the water quality-based 

permitting process; permit objection, 

documentation, and process 

efficiencies; vessels exclusion; and the 

CWA section 401 certification process. 

This is a table of the proposed or 

discussed changes in those categories. 

TABLE II–1—PROPOSED TOPICS FOR REVISION AND PUBLIC COMMENT

Category Proposed topic for revision 

Permit Application Requirements.• Purpose and Scope (40 CFR 122.1). 

• NPDES Program Definition including: Pesticide Applications to Waters of the United States, Proposed Permit, 

New Discharger and Whole Effluent Toxicity Definition (40 CFR 122.2); 

• Changes to Existing Application Requirements (40 CFR 122.21). 

Water Quality-Based Permitting Process.• Antidegradation Reference (40 CFR 122.44(d)); 

• Dilution Allowances (40 CFR 122.44(d)); 

• Reasonable Potential Determinations for New Discharges (40 CFR 122.44(d)); 

• Best Management Practices (40 CFR 122.44(k); 

• Anti-backsliding (40 CFR 122.44(l)); 

• Design Flow for Publicly Owned Treatment Works (40 CFR 122.45(b)). 

Permit Objection, Documentation and Process Efficiencies.• Objection to Administratively Continued Permits (40 CFR 123.44); 

• Public Notice Requirements (40 CFR 124.10(c)); 

• Fact Sheet Requirements (40 CFR 124.56); and 

• Deletion of 40 CFR 125.3(a)(1)(ii). 

Vessels Exclusion ................ • Vessels Exclusion (40 CFR 122.3(a)). 

CWA section 401 Certification Process.• CWA section 401 Certification Process (40 CFR 124.55(b). 


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9U.S. Environmental Protection Agency National 

Pollutant Discharge Elimination System Pesticide 

General Permit (PGP) for Discharges from the 

Application of Pesticides, October 31, 2011. http:// 

www3.epa.gov/npdes/pubs/final_pgp.pdf. 

10 2002 ratified EPA WET Test Methods (Acute 

and Chronic freshwater and saltwater WET methods 

such as ‘‘Short-term Methods for Estimating the 

Chronic Toxicity of Effluents and Receiving Waters 

to Marine and Estuarine Organisms [Third Edition/ 

October 2002]’’—see introduction sections 2.1.1 and 

2.1.2). See http://www.epa.gov/cwa-methods/wholeeffluent-toxicity-methods. 

11 Id. 

12Three examples of longstanding policies 

include: EPA NPDES guidance documents 

(including WET documents): 1991 EPA Technical 

Support Document (TSD) for Water Quality-based 

Toxics Control (March 1991, EPA/505/2–90–001), 

EPA’s Generalized Methodology for Conducting 

Industrial Toxicity Reduction Evaluations (TREs) 

guidance document (April 1989, EPA/600–2–88/

070), and EPA’s Toxicity Reduction Evaluation 

Guidance for Municipal Wastewater Treatment 

Plants (August 1999, EPA/833–B–99–002, revised 

edition from previous 1989 edition). See additional 

documents at http://www.epa.gov/npdes/npdeswet-programmatic-documents. 

III. Proposed Revisions 

A. Proposed Revisions to Part 122 

1. Purpose and Scope (40 CFR 122.1) 

(a) NPDES contact information. 

EPA is correcting contact information 

included in the Note to § 122.1 by 

deleting outdated references to program 

contact information that is no longer 

available to ‘‘Information concerning the 

NPDES program and its regulations can 

be obtained by contacting the Water 

Permits Division (4203), Office of 

Wastewater Management, U.S.E.P.A., 

1200 Pennsylvania Avenue NW., 

Washington, DC 20460 and by visiting 

the homepage at http://www.epa.gov/

npdes.’’ 

2. NPDES Program Definitions (40 CFR 

122.2) 

(a) Pesticide Applications to Waters of 

the United States 

EPA proposes to add a definition of 

‘‘pesticide applications to waters of the 

United States.’’ In 2009, the decision in 

National Cotton Council, et al. v. EPA, 

553 F.3d 927 (6th Cir. 2009) found that 

point source discharges of biological 

pesticides and chemical pesticides that 

leave a residue to waters of the United 

States are pollutants under the CWA 

and therefore require NPDES permits. 

EPA, and subsequently authorized 

states, developed a Pesticide General 

Permit (PGP) 9 to permit discharges for 

certain use patterns. EPA finalized its 

PGP in October 2011. 

This proposal defines the term 

‘‘pesticide applications to waters of the 

United States’’ to mean point source 

discharges to waters of the United States 

resulting from the application of 

biological pesticides or chemical 

pesticides that leave a residue. This 

definition would clarify who is already 

regulated by ensuring that the NPDES 

regulations are consistent with the 6th 

Circuit decision. By defining ‘‘pesticide 

applications to waters of the United 

States’’ in its comprehensive NPDES 

definitions at 40 CFR 122.2 in the same 

way as the PGP defines covered 

activities, EPA would increase clarity 

and consistency. This definition would 

not in any way change which pesticide 

discharges are subject to NPDES 

permitting. 

EPA seeks comments on this 

proposed definition. 

(b) Proposed Permit 

EPA proposes to revise the existing 

definition of ‘‘proposed permit.’’ The 

definition would be expanded to 

include a state-issued NPDES permit 

designated as a ‘‘proposed permit’’ 

under a new section of the regulations, 

§ 123.44(k). 

EPA seeks comments on this 

proposed definition, described below in 

the discussion of the proposed new 

§ 123.44(k). See preamble section III.B.1, 

‘‘Objection to Administratively 

Continued Permits (40 CFR 123.44).’’ 

(c) New Discharger 

EPA is correcting a typographical 

error in subsection (d) of this definition 

by changing ‘‘NDPES’’ to ‘‘NPDES.’’ 

(d) Whole Effluent Toxicity (WET) 

EPA proposes to revise the existing 

definition of WET to refer to both acute 

(lethal) and chronic (lethal and 

sublethal) WET test endpoints. The 

current WET definition in § 122.2 states 

that WET is ‘‘the aggregate toxic effect 

of an effluent measured directly by a 

toxicity test.’’ The proposed clarified 

definition would specify that toxicity 

can include both acute and chronic 

effects. 

This clarification would be consistent 

with EPA’s interpretation of its existing 

WET regulations, as reflected in the 

preamble to the NPDES regulations 

establishing the existing WET 

definition, and in EPA’s WET test 

methods. In the preamble to the 

regulations that established this 

definition, EPA stated, ‘‘effluent 

limitations may be expressed as chronic 

toxicity or acute toxicity (or both),’’ 

recognizing that toxicity can include 

both endpoints. 54 FR 23871 (June 2, 

1989). Similarly, EPA’s 2002 

promulgated WET freshwater and 

saltwater test methods include 

definitions for both acute and chronic 

(sublethal) toxicity, and procedures for 

testing for both acute and chronic 

(sublethal) toxic effects, also 

demonstrating that WET encompasses 

both types of toxicity. 40 CFR 136.3; 67 

FR 69952, November 19, 2002.10 In 

these test methods, EPA defines ‘‘acute 

toxicity’’ as a short-term observation (24 

to 96 hours) including death (lethality). 

EPA defines ‘‘chronic toxicity’’ as a 

longer-term observation (1 hour and up 

to 9 days) for life-cycle endpoints which 

includes lethality (death) and other 

sublethal endpoints such as effects on 

growth, reproduction, and mobility.11

EPA’s WET test methods, including the 

procedures for both acute and chronic 

(including sublethal endpoints) toxicity 

tests, were challenged and subsequently 

upheld in Edison Electric Inst. et al. v. 

EPA. 391 F.3d 1267 (D.C. Cir. 2004). 

This proposed clarification would 

also be consistent with WET program 

guidance documents 12 and EPA’s Great 

Lakes Initiative. See 40 CFR 132.2; 

Appendix F to Part 132, Procedure 6. 

These documents include references to 

and discussion of both acute and 

chronic toxicity (including sublethal 

effects such as propagation) and acute 

and chronic WET test endpoints. 

Defining toxicity to include sublethal 

effects is consistent with the CWA, 

which establishes a national goal of 

‘‘water quality which provides for the 

protection and propagation of fish, 

shellfish and wildlife.’’ CWA section 

101(a)(2). CWA sections 301 and 302 

contain various other references to the 

‘‘protection and propagation’’ of aquatic 

organisms, evidencing an intent to 

protect against not only lethality but 

also sublethal effects on fish and 

wildlife. CWA sections 301(h)(2), 

301(g)(2)(C), 302(a), 304(a)(5)(B). 

EPA notes that this proposed 

clarification would not change any 

existing regulatory requirements with 

respect to inclusion of acute or chronic 

WET limits in permits. Specifically, it 

would not change the existing 

requirement that NPDES permits 

include WET limits where necessary to 

meet state numeric and narrative water 

quality criteria for aquatic life 

protection. 40 CFR 122.44(d)(1)(iv) and 

(v). Under this regulation, permit limits 

must be written to meet states’ WET 

WQS. Thus, if a state’s WET WQS 

require controls for both acute and 

chronic toxic effects, permit limits must 

be written to meet both WET test 

endpoints. If a state’s WET WQS require 

controls only on either acute or chronic 

toxicity, then the permit WET limits 

would be written to meet protection of 


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13All state water quality standards include 

criteria for aquatic life protection. In all but one 

state, the water quality standards contain provisions 

to protect against both acute and chronic toxicity 

including sublethal endpoints in their narrative 

and/or numeric aquatic life protection criteria. One 

state, Iowa, has been working to revise its standards 

to include chronic toxicity including chronic 

sublethal endpoints but to date has acute endpoints 

(lethality) only. 

only the applicable WET endpoints.13

The proposed clarification of the current 

definition would not change the current 

regulatory requirements for whether 

permits must control for acute or 

chronic toxicity—which is currently, 

and will continue to be, based on the 

level of protection against toxicity that 

the state’s WQS provide. The proposed 

clarification would simply reflect what 

is already clear under EPA’s 

promulgated WET test methods and 

other documents referenced above, and 

in state water quality criteria for WET: 

That WET can include both acute and 

chronic (sublethal) effects. Because 

permit limits would continue to be 

based on a state’s applicable water 

quality criteria for toxicity, whether 

acute and/or chronic, the proposed 

clarification would not change current 

longstanding practice of implementing 

WET or increase any burden on 

permittees. 

EPA seeks comment on this proposed 

clarification of its current definition of 

WET. 

3. Vessels Exclusion (40 CFR 122.3(a)) 

EPA proposes to revise § 122.3(a) to 

clarify which vessel discharges are 

excluded from the requirement to obtain 

NPDES permits. 

The exclusion for discharges 

incidental to the normal operation of a 

vessel at 40 CFR 122.3(a), as it currently 

appears in EPA’s regulations, was 

challenged in Northwest Environmental 

Advocates et al. v. United States EPA, 

2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 

2005). On March 30, 2005, the court 

determined that the exclusion exceeded 

the EPA’s CWA authority. In September 

2006, the court issued a final order 

vacating the exclusion. Northwest 

Environmental Advocates et al. v. 

United States EPA, 2006 U.S. Dist. 

LEXIS 69476 (N.D. Cal. 2006). 

EPA appealed the District Court’s 

decision to the U.S. Court of Appeals for 

the Ninth Circuit, and on July 23, 2008, 

the Ninth Circuit upheld the decision. 

Northwest Environmental Advocates v. 

EPA, 537 F.3d 1006 (9th Cir. 2008). 

Effective December 19, 2008, except for 

those vessel discharges exempted from 

NPDES permitting by Congressional 

legislation, discharges incidental to the 

normal operation of vessels which had 

previously been excluded from NPDES 

permitting by 40 CFR 122.3(a) were 

subject to CWA section 301’s 

prohibition against discharging, unless 

authorized by an NPDES permit. In 

response to the District and Court of 

Appeals decisions, EPA issued the 

Vessel General Permit (VGP) on 

December 19, 2008, which generally 

authorizes discharges incidental to the 

normal operation of commercial vessels 

that were no longer excluded from 

NPDES permitting as a result of the 

vacatur. In February 2013, EPA issued a 

new VGP, which replaced the 2008 VGP 

upon its expiration in December 2013. 

The 2013 VGP is currently in effect to 

authorize these discharges incidental to 

the normal operation of commercial 

vessels. 

In late July 2008, Congress enacted 

two pieces of legislation to exempt 

discharges incidental to the normal 

operation of certain types of vessels 

from the need to obtain an NPDES 

permit. The Clean Boating Act of 2008 

amended the CWA to provide that 

discharges incidental to the normal 

operation of recreational vessels are not 

subject to NPDES permitting, and are 

instead subject to a new regulatory 

regime to be implemented by EPA and 

the U.S. Coast Guard under a new 

section 312(o) of the CWA. S. 2766, 

Public Law 110–188 (July 29, 2008). As 

defined in section 3 of that law, which 

amends CWA section 502, ‘‘recreational 

vessel’’ means a vessel manufactured or 

used primarily for pleasure, or leased, 

rented or chartered to a person for the 

pleasure of that person. It does not 

include a vessel that is subject to Coast 

Guard inspection and is either engaged 

in commercial use or carries paying 

passengers. As a result of this 

legislation, discharges incidental to the 

normal operation of recreational vessels 

are not subject to NPDES permitting. 

EPA proposes adding a new subsection, 

40 CFR 122.3(a)(2), to incorporate this 

statutory exemption. 

The second piece of legislation 

provides for a temporary moratorium on 

NPDES permitting for discharges 

incidental to the normal operation of a 

vessel from (1) commercial fishing 

vessels (as defined in 46 U.S.C. 2101 

and regardless of size) and (2) those 

other non-recreational vessels less than 

79 feet in length. S. 3298, Public Law 

110–299 (July 31, 2008). The statute’s 

NPDES permitting moratorium ran for a 

two-year period beginning on its July 

31, 2008 enactment date, during which 

time EPA studied the relevant 

discharges and prepared a report which 

was submitted to Congress in August 

2010. Congress subsequently extended 

this moratorium to December 18, 2013 

by Public Law 111–215. On December 

18, 2014, President Obama signed into 

law the Howard Coble Coast Guard and 

Maritime Transportation Act of 2014, S. 

2444, which extended the moratorium 

for an additional three years until 

December 18, 2017. EPA proposes text 

in 40 CFR 122.3(a) to reflect this law. 

The new proposed text also reiterates 

that the statute’s NPDES permitting 

moratorium does not extend to ballast 

water discharges, or to other discharges 

that the permitting authority determines 

contribute to a water quality standards 

violation or which pose an unacceptable 

risk to human health and the 

environment. 

EPA is also proposing an update to 

the existing exclusion to incorporate 

language regarding discharges 

incidental to the normal operation of 

vessels of the Armed Forces that was 

added to the CWA definition of 

‘‘pollutant’’ after the promulgation of 

the original § 122.3(a) vessel discharge 

exclusion. Section 301(a) of the CWA 

provides that ‘‘the discharge of any 

pollutant by any person shall be 

unlawful’’ unless the discharge is in 

compliance with certain other sections 

of the Act, including the section 402 

NPDES program. 33 U.S.C. 1311(a), 

1342. Under CWA section 402(a), EPA 

may ‘‘issue a permit for the discharge of 

any pollutant, or combination of 

pollutants, notwithstanding section 

1311(a)’’ subject to certain conditions 

required by the Act. The Act’s definition 

of ‘‘pollutant’’ specifically excludes 

‘‘sewage from vessels or a discharge 

incidental to the normal operation of a 

vessel of the Armed Forces’’ (emphasis 

added) within the meaning of CWA 

section 312. 33 U.S.C. 1362(6). The 

proposed change to § 122.3(a) reflects 

the statutory exclusion for discharges 

incidental to the operation of a vessels 

of the Armed Forces. 

These changes would reduce 

confusion by accurately reflecting the 

current scope of the exclusion from 

NPDES permitting for discharges 

incidental to the normal operation of a 

vessel operating in a capacity as a 

means of transportation, which has 

narrowed since the exclusion was 

originally promulgated. These 

clarifications align with the decision in 

Northwest Environmental Advocates v. 

EPA, 537 F.3d 1006 (9th Cir. 2008), 

which vacated the § 122.3(a) exclusion 

from NPDES permitting for discharges 

incidental to the normal operation of a 

vessel. In addition, these clarifications 

incorporate or otherwise address CWA 

provisions that were enacted by 

Congress after the current regulations 

were promulgated. 

EPA requests comments on whether 

the proposed changes to 40 CFR 122.3(a) 


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14Forms 1, 2A, 2C, 2D, 2E, 2F, 2S (OMB Control 

No. 2040–0086); Form 2B (OMB Control No. 2040– 

0250). 

accurately and clearly reflect the current 

law regarding which vessel discharges 

are subject to the NPDES permitting 

requirements. EPA does not seek and 

will not consider comments on aspects 

of 40 CFR 122.3(a) text that EPA does 

not propose to change, such as the 

discussion in the regulation of the types 

of vessel discharges that are not (and 

never have been) excluded from NPDES 

permitting under this regulation (e.g., 

seafood processing vessels). 

4. Changes to Existing Application 

Requirements (40 CFR 122.21) 

EPA proposes to update and clarify 

the permit application requirements in 

40 CFR 122.21. As the NPDES program 

has evolved, many existing application 

requirements and associated forms have 

become outdated with respect to current 

program practices. Therefore, revisions 

to the application requirements at 40 

CFR 122.21 and to the accompanying 

application forms are needed to update 

and improve their consistency, 

accuracy, and usability. 

CWA section 304(i)(1) (previously 

section 304(h)(1)) required EPA to 

promulgate guidelines for ‘‘establishing 

uniform application forms and other 

minimum requirements for the 

acquisition of information’’ from point 

sources within 60 days after its 

enactment. In 1973, EPA promulgated 

short forms to meet these deadlines and 

standard forms to gather additional 

information from certain dischargers. 

Amendments to the CWA in 1977 

refocused EPA priorities on regulating 

toxic pollutants. As a result, the NPDES 

program expanded beyond regulating 

conventional pollutants to regulating 

toxic pollutants including certain metals 

and organic chemicals, and 

nonconventional pollutants such as 

ammonia, chlorine, and nitrogen. 

To simplify permitting across several 

environmental programs, EPA 

published regulations on May 19, 1980 

(45 FR 33290) to consolidate the 

requirements and procedures for five of 

the permit programs that EPA 

administers: The NPDES program, the 

Underground Injection Control (UIC) 

program under the Safe Drinking Water 

Act (SDWA), state ‘‘dredge or fill’’ 

programs under section 404 of the CWA, 

the Hazardous Waste Management 

program under the Resource 

Conservation and Recovery Act (RCRA), 

and the Prevention of Significant 

Deterioration (PSD) program under the 

Clean Air Act (CAA). This effort sought 

to eliminate gaps and overlaps and 

ensure consistency among the programs 

where appropriate. 

At the same time, EPA consolidated 

the requirements and procedures for the 

five permit programs, it revised the 

permit application regulations. EPA 

created three new application forms: 

Form 1, Form 2B, and Form 2C. Form 

1 requires general information about 

permit applicants and is required to be 

completed by applicants for each of the 

five types of permits under the 

consolidated permit rule. Form 2B is 

specific to NPDES permit applications 

for CAFOs and aquatic animal 

production dischargers. Form 2C 

applies to NPDES permit applications 

for manufacturing, commercial, mining, 

and silvicultural operations. All three 

forms reflected EPA’s emphasis on toxic 

pollutants and other modifications to 

the CWA and NPDES program 

regulations. 

Following promulgation of the 

consolidated permit regulations, 

interested parties commented that the 

consolidated format made the 

regulations unnecessarily difficult to 

use. They commented that dividing 

responsibilities among various entities 

at the state and federal levels caused 

additional problems. In practice, 

consolidated processing of multiple 

permits was rare because the various 

permit programs regulated different 

activities with different standards and 

thus imposed different types of 

requirements on permittees. 

In response to problems permit 

writers encountered, EPA 

deconsolidated the five permitting 

programs on April 1, 1983 (48 FR 

14146). The NPDES regulations remain 

in part 122 (substantive permit 

requirements) and part 123 (state 

program requirements). Part 124 

(common permitting procedures) 

remains applicable to all of the 

programs. On September 1, 1983, EPA 

promulgated additional revisions 

covering a number of issues affecting 

the consolidated permit program. 48 FR 

39611. 

The NPDES program continued to use 

these application forms 14 (Form 1, 

Form 2B and Form 2C) after 

deconsolidation. In 1984, EPA amended 

Form 2C to include toxic pollutant 

sampling. In 1986, EPA promulgated 

two new NPDES forms: Form 2D for use 

by new manufacturing, commercial, 

mining, and silvicultural operations; 

and Form 2E for use by facilities that do 

not discharge process wastewater. 51 FR 

26982. 

In 1987, Congress made extensive 

revisions to the CWA. Water Quality Act 

(WQA), Public Law 100–4. A new 

provision, CWA section 402(p), required 

EPA to establish NPDES requirements 

for stormwater discharges in two 

phases. To implement these 

requirements, EPA published the 

Stormwater Phase I Rule which 

established permit application 

requirements for certain categories of 

stormwater discharges associated with 

industrial activity (creating Form 2F) 

and discharges from large and medium 

municipal separate storm sewer systems 

(MS4s). 55 FR 47990. On December 8, 

1999, EPA published the Stormwater 

Phase II Rule regulating stormwater 

discharges from small construction sites 

and from certain small MS4s. 64 FR 

68722. 

In 1999, EPA also amended the permit 

application requirements and 

application forms for POTWs and 

treatment works treating domestic 

sewage (TWTDSs). 64 FR 42434. The 

new Form 2A for POTWs addressed a 

number of changes to the NPDES 

program that had occurred since 1973 

(e.g., toxics control, pretreatment 

programs, water quality-based 

permitting), and it streamlined the 

existing application requirements. The 

new Form 2S for TWTDSs addressed 

application requirements associated 

with new regulatory requirements for 

the generation, treatment, use and 

disposal of sewage sludge (biosolids). 58 

FR 9248. 

In 2000, EPA issued amendments to 

streamline the NPDES program in 

response to a Presidential Directive to 

review regulatory programs to eliminate 

any obsolete, ineffective, or unduly 

burdensome regulations. 65 FR 30886. 

As part of this streamlining effort, EPA 

revised several permit application 

provisions to reduce duplicative 

requirements and clarify certain 

application requirements. 

On February 12, 2003, EPA issued a 

final rule revising NPDES requirements 

for CAFOs. 68 FR 7176. This rule 

revised the information requirements for 

entities seeking coverage under an 

NPDES permit for CAFOs, and revised 

the NPDES individual permit 

application for CAFOs (Form 2B for 

CAFOs and aquatic animal production 

facilities). Further, in response to an 

order issued in Waterkeeper Alliance et 

al. v. EPA, 399 F.3d 486 (2d Cir. 2005), 

EPA made several revisions to the 

CAFO regulations, including changes to 

the application requirements and Form 

2B. 73 FR 70418. 

On October 22, 2015, EPA’s NPDES 

Electronic Reporting Rule went into 

effect, amending 40 CFR part 127. 80 FR 

64063. This rule requires electronic 

submittal of NPDES permitting and 

compliance monitoring reporting 

information. This rulemaking changed 


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15For more information about EPA’s Data 

Standards Program see http://www.epa.gov/

datastandards. 

16http://www.exchangenetwork.net/standards/

Facility_Site_01_06_2006_Final.pdf. 

17http://www.exchangenetwork.net/standards/

Lat_Long_Standard_08_11_2006_Final.pdf. 

the method by which information is 

provided by permittees to permitting 

authorities, expediting the collection 

and processing of data to create a 

consistent and transparent NPDES data 

set. 

EPA is proposing specific, targeted 

changes to the current application 

requirements and is not proposing, or 

seeking comment on, other changes to 

the information or pollutant screening 

data required by the existing regulations 

and forms. Several revisions included in 

this proposal are necessary in order to 

ensure the information required by the 

application forms across the different 

categories of facilities submitting 

applications is consistent with EPA’s 

current data standards 15 and the NPDES 

Electronic Reporting Rule. EPA data 

standards promote efficient 

environmental information sharing 

among EPA, states, tribes, local 

governments, the private sector, and 

other information trading partners. 

These data standards are developed in 

collaboration with the Environmental 

Information Exchange Network (EIEN) 

and other federal agencies. Many of the 

application forms have not been 

updated in recent history to incorporate 

the data standards developed by this 

group. 

EPA proposes updating the industrial 

code classification requirement to 

include the facility’s North American 

Industry Classification System (NAICS) 

code, which is part of the established 

data standard.16 Also, EPA proposes 

updating the latitude and longitude 

requirement to include the method of 

data collection, which is a required 

element in the current standard 17 and 

can be used to determine the reference 

datum that is in turn used in 

determining the latitude and longitude 

coordinates. In addition, EPA proposes 

revising the specificity of the latitude 

and longitude coordinates to provide 

consistency among forms in the level of 

information collected. Currently, some 

forms ask for latitude and longitude to 

the nearest second, and other forms ask 

more generally for just latitude and 

longitude. To ensure precision and 

improve consistency, EPA proposes 

revising the application forms and 

corresponding regulations in 40 CFR 

122.21 to ask for latitude and longitude 

to the nearest second for every facility 

and permitted feature, as well as the 

method of collection for this 

information. 

EPA proposes the following revisions 

to 40 CFR 122.21: 

a. NPDES Contact Information—EPA 

proposes to update contact information 

for those interested in obtaining 

application forms. 40 CFR 122.21(a)(2) 

will be updated to: U.S. EPA, Mail Code 

4203M, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460 or by visiting 

http://www.epa.gov/npdes. 

b. North American Industry 

Classification System (NAICS) Codes— 

For all applicants except publicly 

owned treatment works (POTWs) and 

treatment works treating domestic 

sewage (TWTDSs), EPA proposes to 

revise the requirements at 40 CFR 

122.21(f)(3) to include NAICS codes, in 

addition to Standard Industrial 

Classification (SIC) codes, that reflect 

the products or services provided by the 

facility. This proposed revision would 

update the classification code 

requirement to be consistent with EPA’s 

current data standard (NAICS) until 

EPA completely phases out the use of 

SIC codes in other program areas, such 

as the effluent guidelines program. 

c. Latitude and Longitude—To 

improve the consistency and precision 

of locational information required in 

permit applications, and to be 

consistent with EPA data standards, 

EPA proposes several revisions: 

i. For existing manufacturing, 

commercial, mining, and silvicultural 

dischargers, EPA proposes revising 40 

CFR 122.21(g)(1) and 122.21(h)(1) to 

require outfall latitude and longitude to 

the nearest second, including the 

method of data collection (e.g., global 

positioning system (GPS) device, 

topographical map and scale) in 

accordance with EPA data standards. 

ii. EPA proposes revising 40 CFR 

122.21(j)(1)(i) and 122.21(j)(3)(i) for new 

and existing POTWs, and 40 CFR 

122.21(k)(1) for new sources and new 

discharges, to require the latitude and 

longitude of the discharging facility to 

the nearest second, including the 

method of data collection. 

iii. For all applicants except POTWs 

and TWTDSs, EPA proposes to revise 40 

CFR 122.21(f)(2) to require the latitude 

and longitude of the discharging facility 

to the nearest second, including the 

method of data collection. In addition, 

EPA is proposing to update the 

corresponding form (Form 1) to include 

a check box to indicate whether the 

location represents the primary entry 

point to the facility or the centroid of 

the facility site location. 

iv. For new and existing concentrated 

animal feeding operations (CAFOs) and 

concentrated aquatic animal production 

(CAAP) facilities, EPA proposes revising 

40 CFR 122.21(i)(1)(iii) to require 

latitude and longitude to the nearest 

second and the method of data 

collection. 

v. For certain TWTDSs, EPA proposes 

revising the following paragraphs to 

require the site latitude and longitude to 

the nearest second including the 

method of data collection: 40 CFR 

122.21(q)(1)(i), 122.21(q)(8)(ii)(A), 

122.21(q)(9)(iii)(B), 122.21(q)(10)(iii)(B), 

122.21(q)(11)(iii)(B) and 122.21(q)(12)(i). 

vi. For combined sewer systems, EPA 

proposes revising 40 CFR 

122.21(j)(8)(ii)(A)(3) to require the 

method of collection for the latitude and 

longitude of the combined sewer 

overflow (CSO) outfall. 

vii. For cooling water intake 

structures, EPA proposes revising 40 

CFR 122.21(r)(3)(ii) to require the intake 

structure latitude and longitude to the 

nearest second including the method of 

data collection. 

EPA seeks comments on the 

availability of longitude and latitude 

coordinates for the specific locations 

identified above as well as whether 

there are any other considerations it 

should consider relating to submitting 

these coordinates as part of the 

application requirements. 

EPA proposes revisions to the length 

of time given to new dischargers to 

submit effluent information. This 

revision would ensure that new 

dischargers submit effluent 

characterization data in a manner that is 

timely and consistent for both POTW 

and non-POTW dischargers. 40 CFR 

122.21(k) currently requires new nonPOTW sources to submit data within 

two years of the commencement of 

discharge, while 40 CFR 122.21(j) does 

not establish a timeframe for new 

POTWs to submit information. EPA’s 

proposed revision would establish a 

new timeframe of 18 months for both 

POTW and non-POTW dischargers to 

submit effluent information to the 

permitting authority. Specifying a time 

frame for a POTW to submit actual 

monitoring results and reducing the 

time frame (from two years to 18 

months) required for a new industrial 

discharger to submit actual monitoring 

results would ensure that permitting 

authorities have more timely access to 

actual effluent data upon which to 

confirm or rebut the estimates provided 

by new dischargers on their initial 

permit applications. While the estimates 

provided in the initial applications are 

useful and appropriate for determining 

the need for effluent limits, the actual 

effluent data are vital to confirm that 

permit conditions developed based on 

the estimated pollutant concentrations 


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in fact protective of water quality. It is 

EPA’s view that 18 months would 

provide a reasonable time period for a 

new discharge to collect representative 

effluent data and submit the data to the 

permitting authority. This 18 month 

timeframe would provide a new 

discharger with up to a three month 

time period to ensure that the treatment 

system is operating efficiently, collect 

data over a full calendar year, and have 

three months remaining to submit the 

data to the permitting authority. These 

revisions would not alter the type or 

quantity of information required from a 

new discharger, and impose no new 

burden. 

EPA proposes the following revisions 

to 40 CFR 122.21: 

d. New Discharger Data Submission— 

EPA proposes making the time provided 

for effluent data submission for new 

POTWs consistent with the requirement 

for new industrial dischargers. EPA also 

proposes to reduce the time period that 

is provided for new non-POTW 

dischargers to submit effluent data. 

Specifically, the proposed revisions to 

application requirements for new 

sources and new discharges at 40 CFR 

122.21(k)(5)(vi) would require 

applicants to submit items V and VI of 

Form 2C no later than 18 months after 

the commencement of discharge. The 

current requirement for submission is 

two years. The proposed revisions to 

application requirements for new 

POTWs at 40 CFR 122.21(j)(4)(i) and 

122.21(j)(5)(i) would require submission 

of data no later than 18 months after the 

commencement of discharge. 

EPA specifically seeks comments on 

whether 18 months is an adequate 

period of time for new dischargers to 

submit effluent data. 

EPA proposes revisions to the effluent 

data submission requirements for nonPOTWs to be consistent with those for 

POTWs. The instructions for Form 2C 

currently direct applicants to provide all 

representative data where the applicant 

has multiple results for a particular 

parameter. The Form 2C instructions 

also indicate that data from the past 

three years should be included. These 

requirements are not specifically 

identified in the current regulations and 

the instructions are not consistent with 

the requirements for POTWs. When 

applying for an NPDES permit, an 

existing POTW must provide effluent 

data from the previous 4.5 years. The 

4.5-year requirement for Form 2A was 

established to ensure the permittee 

summarizes all the data collected during 

its existing five-year permit term with 

consideration that the application 

would be submitted six months prior to 

the end of the permit term (i.e., 4.5 

years). It is EPA’s view that 

summarizing the data from the previous 

permit term is equally as important for 

non-POTW dischargers. Accordingly, 

EPA proposes to revise the application 

Form 2C instructions as well as to 

include a new paragraph 40 CFR 

122.21(g)(7)(ix) in the regulations to 

require the submission of effluent data 

representing the previous 4.5 years. 

These revisions would not alter the type 

or quantity of information required from 

a discharger, and impose no new 

burden. 

EPA proposes the following revisions 

to 40 CFR 122.21: 

e. Data Age for Permit Renewal—EPA 

proposes adding 40 CFR 122.21(g)(7)(ix) 

to ensure that the effluent data 

submission requirements for nonPOTWs are consistent with those for 

POTWs. EPA proposes to revise the 

application Form 2C instructions and 

include a new paragraph in the 

regulations at § 122.21(g)(7)(ix) to 

require the submission of effluent data 

representing the previous 4.5 years for 

non-POTW facilities. 

f. Reporting Electronic Mail 

Address—EPA proposes revising the 

following paragraphs in 40 CFR 122.21 

to request the applicant’s electronic 

mailing address (email): 

§ 122.21(c)(2)(ii)(B), § 122.21(f)(4), 

§ 122.21(j)(1)(ii), § 122.21(j)(1)(viii)(2) 

and (3), § 122.21(j)(9), § 122.21(q)(1)(i), 

§ 122.21(q)(2)(i), § 122.21(q)(8)(vi)(A), 

§ 122.21(q)(9)(iii)(D) and (E), 

§ 122.21(q)(9)(iv)(A), 

§ 122.21(q)(10)(ii)(A), 

§ 122.21(q)(10)(iii)(K)(1), 

§ 122.21(q)(11)(ii)(A), § 122.21(q)(12)(i), 

and § 122.21(q)(13). 

EPA proposes specific targeted 

changes to the NPDES application 

requirements for POTWs that would 

bring the NPDES regulations in concert 

with changes to the general 

pretreatment regulations at 40 CFR 

403.3(v). Application requirements at 40 

CFR 122.21(j) ensure that POTWs 

submit information for both significant 

industrial users (SIUs) and categorical 

industrial users (CIUs), including 

industrial waste trucked or hauled to 

the POTW, in order to properly identify 

types of industries and characterize the 

wastewater discharged to the POTW. 

This application information is used by 

the pretreatment control authority to 

determine whether a pretreatment 

program must be developed. Control 

authorities are POTWs with an 

approved POTW pretreatment program, 

an authorized state pretreatment 

program, or EPA where there is no 

authorized state pretreatment program. 

Prior to the 2005 national 

pretreatment program regulations 

revisions, all CIUs were considered a 

subset of the broader term ‘‘significant 

industrial users.’’ In 2005, the general 

pretreatment regulation at 40 CFR 

403.3(v) was revised to allow a control 

authority to designate certain CIUs, after 

qualifying and demonstrating continued 

compliance with categorical standards, 

as a non-significant CIU (NSCIU). 40 

CFR 403.3(v)(ii). Users categorized as 

NSCIUs must submit an annual 

certification to maintain their ‘‘nonsignificant’’ status, but are no longer 

subject to annual sampling, inspections 

or permitting requirements such as local 

limits, which are required for significant 

users. This resulted in a reporting and 

permitting burden reduction on these 

CIUs and the control authorities. 

However, all CIUs (both those classified 

as SIUs and NSCIUs) are still subject to 

industrial sector-specific national 

categorical standards established in 40 

CFR chapter I, subchapter N. 

The proposed language at 40 CFR 

122.21(j)(6) will clarify that POTWs are 

required to submit, as part of their 

application, relevant information from 

all industrial users (SIUs and NSCIUs). 

The proposed revision would align the 

NPDES application requirements with 

the existing pretreatment regulations at 

40 CFR 403.3(v), and would impose no 

new burden. 

EPA proposes the following revisions 

to 40 CFR 122.21: 

g. Reporting Numbers of Significant 

Industrial Users (SIUs) and NonSignificant Categorical Industrial Users 

(NSCIUs)—EPA proposes revising 40 

CFR 122.21(j)(6)(i) and (ii) to clarify that 

the reporting requirements under these 

sections apply to both SIUs and 

NSCIUs, including trucked or hauled 

waste, that discharge to a POTW. 

EPA is also proposing to revise 40 

CFR 122.21(f) to require applicants to 

indicate whether their facility uses 

cooling water and to identify the source 

of that cooling water. This would clarify 

the need for and ensure the permitting 

authority receives all of the necessary 

information required under existing 40 

CFR 122.21(r) for the facility. This 

proposal will not alter any of the 

existing requirements under 40 CFR 

122.21(r), and imposes no new burden. 

EPA proposes the following revisions 

to 40 CFR 122.21: 

h. Cooling Water Intake Structure 

Indication—EPA proposes adding a new 

paragraph 40 CFR 122.21(f)(9) to require 

the applicant to indicate whether the 

facility uses cooling water and to 

specify the source of the cooling water 

and to remind applicants they must 

comply with any applicable 

requirements at 40 CFR 122.21(r). 


sradovich on DSK3TPTVN1PROD with PROPOSALS3
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Finally, EPA proposes to revise 

§§ 122.21(f) and 122.21(j) to require 

applicants to indicate whether they are 

requesting any of the variances 

permitted under 40 CFR 122.21(m) (for 

non-POTWs) and (n) (for POTWs). This 

would ensure the permitting authority is 

aware of the request at the time of 

permit application and could better 

determine whether the facility has 

submitted all of the required 

information. This proposal would not 

alter any of the existing requirements of 

40 CFR 122.21(m) and (n), and imposes 

no new burden. 

EPA proposes the following revisions 

to 40 CFR 122.21: 

i. Request for Variance Indication— 

EPA proposes adding a new paragraph 

40 CFR 122.21(f)(10) to require the 

applicant to indicate whether he or she 

is requesting any of the variances under 

§ 122.21(m). EPA also proposes adding 

40 CFR 122.21(j)(1)(ix) to require the 

applicant to indicate whether he or she 

is operating under the variance for 

POTWs provided in § 122.21(n). 

In this rulemaking, EPA is seeking 

comment only on these specific 

proposed targeted changes to the current 

application requirements. EPA is not 

proposing or seeking comment on other 

changes to the information or pollutant 

screening data that the existing 

regulations and forms require and will 

not respond to any such comments as 

part of this rulemaking. However, in the 

future, EPA may examine all the 

application forms to determine whether 

they should be revised further, for 

example, to address any potentially 

obsolete elements or information 

requests inconsistent with regulatory 

requirements at 40 CFR 122.21. If you 

would like to address changes to current 

application requirements other than 

those raised by this rulemaking, please 

submit those comments to Docket ID 

No. EPA–HQ–OW–2016–0146 at http:// 

www.regulations.gov. 

5. Antidegradation Reference (40 CFR 

122.44(d)) 

EPA proposes to revise 40 CFR 

122.44(d) to include a reference to 40 

CFR 131.12 in order to ensure 

consistency with the state 

antidegradation requirements 

established under that section. CWA 

section 301(b)(1)(C) requires that NPDES 

permit limits be as stringent as 

necessary to meet water quality 

standards. Consistent with this 

requirement, the NPDES regulations at 

40 CFR 122.44(d)(1) provide that NPDES 

permits shall include ‘‘any requirements 

in addition to or more stringent than 

promulgated effluent limitations 

guidelines or standards . . . necessary 

to: (1) Achieve water quality standards 

established under CWA section 303, 

including state narrative criteria for 

water quality.’’ Water quality standards 

consist principally of three elements: 

Designated uses, water quality criteria 

and antidegradation policies. 40 CFR 

131.6, 131.10–12. Pursuant to EPA’s 

regulations at 40 CFR 131.12, states 

must adopt antidegradation policies. An 

antidegradation policy ‘‘specifies the 

framework to be used in making 

decisions about proposed activities that 

will result in changes in water quality’’ 

and ‘‘can play a critical role in helping 

states protect the public resource of 

water whose quality is better than 

established criteria levels and ensure 

that decisions to allow reductions in 

water quality are made in a public 

manner and serve the public good.’’ 

NPDES PWM, 6.1.1.3. EPA expects 

permitting authorities to develop 

NPDES permit terms and conditions 

consistent with and in consideration of 

applicable state antidegradation policies 

and/or requirements. However, this 

interpretation has not explicitly been 

included in the NPDES regulations. The 

federal antidegradation policy has a 

long legislative history. The Secretary of 

the Interior established the basic federal 

antidegradation policy on February 8, 

1968. When the CWA was enacted in 

1972, the WQS of all 50 states included 

antidegradation provisions. By 

providing in 1972 that existing state 

WQS would remain in force until 

revised, the CWA ensured that states 

would continue their antidegradation 

programs. EPA’s first WQS regulation, 

promulgated on November 28, 1975, 

included a similar antidegradation 

policy at 40 CFR 130.17. 40 FR 55,340– 

41. 

Section 101(a) of the CWA 

emphasizes the prevention of water 

pollution and expressly includes the 

objective ‘‘to restore and maintain the 

chemical, physical and biological 

integrity of the Nation’s waters’’ (33 

U.S.C. 1251(a)) (emphasis added). The 

antidegradation requirements that EPA 

incorporated by regulation in 1983 into 

40 CFR 131.12 implement the 

maintenance aspect of this CWA section 

101(a) goal and are an essential 

component of the overall WQS program. 

The CWA section 101(a)(2) goals call 

for the protection and propagation of 

fish, shellfish and wildlife, and 

recreation in and on waters. Although 

designated uses and criteria are the 

primary tools states use to achieve this 

goal, antidegradation complements 

these by, in part, providing a framework 

for maintaining and protecting waters 

that are of higher quality than necessary 

to support the CWA section 101(a)(2) 

goals, or are Outstanding National 

Resource Waters (ONRWs). 

Antidegradation plays a critical role in 

allowing states and tribes to maintain 

and protect the valuable resource of 

high quality water by ensuring that 

decisions to allow a lowering of high 

quality water are made in a transparent 

and public manner and are based on a 

sound technical record. 

In the 1987 WQA, Congress expressly 

affirmed CWA section 101’s 

antidegradation principle and 

referenced antidegradation policies in 

section 303(d)(4)(B) of the Act (33 

U.S.C. 1313(d)(4)(B)), simultaneously 

confirming that antidegradation policies 

are an integral part of the CWA and 

explaining the relationship of 

antidegradation policies to other CWA 

regulatory programs: 

Standard Attained—For waters identified 

under paragraph (1)(A) where the quality of 

such waters equals or exceeds levels 

necessary to protect the designated use for 

such waters or otherwise required by 

applicable WQS, any effluent limitation 

based on a total maximum daily load or other 

waste load allocation established under this 

section, or any WQS established under this 

section, or any permitting standard may be 

revised only if such revision is subject to and 

consistent with the antidegradation policy 

established under this section. 

As the Supreme Court stated in PUD 

No. 1 of Jefferson County v. Washington 

Department of Ecology, 511 U.S. 700, 

705 (1994): 

A 1987 amendment to the Clean Water Act 

makes clear that section 303 also contains an 

‘antidegradation policy’ . . . Specifically, the 

Act permits the revision of certain effluent 

limitations . . . only if such revision is 

subject to and consistent with the 

antidegradation policy established under 

CWA section 303, 33 U.S.C.1313(d)(4)(B)). 

The court also acknowledged the 

long-standing federal antidegradation 

policy and EPA’s authority to 

promulgate antidegradation 

requirements. Id. 704–05, 718. 

Based on this authority, EPA 

promulgated its current antidegradation 

regulation at 40 CFR 131.12 on August 

21, 2015. 80 FR 51020. Section 131.12 

requires states to develop and adopt a 

statewide antidegradation policy and 

develop methods for implementing that 

policy. It built upon and refined the preexisting 1983 regulation which EPA had 

promulgated at 40 CFR 131.12 on 

November 8, 1983. 48 FR 51400. 

Consistent with the Supreme Court 

decision, PUD No. 1 of Jefferson County 

v. Washington Department of Ecology, 

and the requirements of 40 CFR 131.12, 

WQBELs must be derived consistent 

with applicable state antidegradation 

policies. This is EPA’s longstanding 


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18See 40 CFR 131.13 (‘‘States may, at their 

discretion, include in their State Standards, policies 

generally affecting their application and 

implementation, such as mixing zones, low flows 

and variances.’’). 

interpretation of the CWA. NPDES 

PWM, 6.1.1.3 and 7.2.1.4. 

This interpretation is not expressly 

included in the existing regulations at 

40 CFR 122.44(d)(1); thus, EPA now 

proposes to revise 40 CFR 122.44(d)(1) 

to expressly include a reference to 40 

CFR 131.12, in order to ensure 

consistency with the antidegradation 

provisions in that section. Similar to the 

existing provision at 40 CFR 

122.44(d)(1) noting that ‘‘narrative 

criteria for water quality’’ are 

components of water quality standards, 

including the reference to 40 CFR 

131.12 serves notice that 

antidegradation policies are also 

components of state water quality 

standards and must be considered in in 

permitting decisions where applicable. 

EPA proposes revising 40 CFR 

122.44(d)(1) to include, explicitly, ‘‘the 

state antidegradation requirement’’ as 

one of the elements of state WQS that 

must be applied when deriving 

WQBELs. 

As noted above, because 

antidegradation is an existing 

component of all state WQS, the 

existing regulations at 40 CFR 122.44(d) 

require state and EPA permitting 

authorities to ensure that effluent limits 

derive from and comply with 

antidegradation requirements. EPA does 

not propose to change any of its existing 

interpretations of WQS, antidegradation 

or any related existing EPA 

interpretations of state implementation 

responsibilities. This proposed revision 

is intended solely as a clarification, and 

imposes no new burden. The only 

burden related to this new reference 

would be where state permitting 

authorities are not currently 

implementing elements of their EPAapproved WQS. It is EPA’s view that 

currently, permit writers consider 

antidegradation, although NPDES 

permit records might not necessarily 

currently reflect this analysis. 

EPA seeks comments on this 

proposed revision to 40 CFR 

122.44(d)(1). 

6. Dilution Allowances (40 CFR 

122.44(d)) 

EPA proposes to revise 40 CFR 

122.44(d) to specify that any allowance 

for dilution provided under this 

paragraph must comply with applicable 

dilution and mixing zone requirements 

and low flows established in state 

WQS 18 and be supported by data or 

analyses quantifying or accounting for 

the presence of each assessed pollutant 

or pollutant parameter in the receiving 

water. 

The CWA and its implementing 

regulations require that NPDES permits 

include limitations as stringent as 

necessary to meet applicable WQS. 

CWA 301(b)(1)(C); 40 CFR 122.44(d)(1). 

When determining the need for 

conditions necessary to meet WQS, 40 

CFR 122.44(d)(1)(ii) indicates that the 

permitting authority shall consider, 

‘‘where appropriate, the dilution of the 

effluent in the receiving water.’’ When 

developing WQS pursuant to CWA 

section 303(c), EPA regulations at 40 

CFR 131.13 provide that states may 

include in the state standards ‘‘general 

policies’’ affecting the application of 

WQS such as mixing zones, low flows 

and variances. Alternatively, states may 

address dilution and mixing 

considerations through implementation 

policies and guidance. Consistent with 

these provisions, many state WQS and 

implementation procedures allow some 

consideration of dilution and mixing 

when determining the need for and 

calculating WQBELs. 

The ambient environment mitigates 

the impact of an effluent discharge on 

a receiving water in a number of ways, 

generally related to the nature of the 

discharged pollutant and the physical, 

chemical and biological characteristics 

of the effluent and receiving water. For 

many toxic pollutants, dilution is the 

primary mitigation mechanism. For 

oxygen-demanding pollutants, such as 

biochemical oxygen demand (BOD), 

mitigation may be achieved through 

both dilution and biodegradation. For 

other pollutants, mitigation may be 

achieved through multiple processes, 

including dilution, biodegradation, 

chemical reactivity and volatilization. 

The concentration or mass of a pollutant 

or pollutant parameter that can be safely 

mitigated by these various processes in 

the receiving water without exceeding 

any applicable WQS and without 

causing adverse effects is commonly 

referred to as the ‘‘assimilative 

capacity’’ of the receiving water. 

For any consideration of the dilution 

of an effluent in a receiving water, 

modelers must account for the level of 

the pollutant already present in the 

receiving water prior to the introduction 

of the effluent. This is often referred to 

as the ‘‘background’’ pollutant 

concentration. The background 

pollutant concentration can be based on 

measurements from the receiving water, 

or where data are unavailable, can be 

assumed. Where data are available, 

modelers assess the data and select a 

value that is considered representative 

of the site. The selection of the 

background value might be based on an 

average of the data, or on an upper or 

lower statistical boundary, and is 

generally a matter of state policy or 

procedure. In any case, modeling 

requires that the modeler select some 

background pollutant value. 

Where no measured data are 

available, the modeler could either 

postpone the analysis to obtain data, or 

could instead assume a background 

concentration. For NPDES permitting 

purposes, the assumed background 

value could range from zero to a value 

at or above the applicable water quality 

criteria. An assumption of zero indicates 

that the full assimilative capacity of the 

water is available, while an assumption 

that the background concentration is at 

or above the applicable water quality 

criteria indicates that there is no 

remaining assimilative capacity. As 

noted above, the selection of one of the 

end point values, or some value 

between these two extremes, is typically 

a matter of state policy. 

As discussed above, granting any 

dilution allowance requires the 

consideration of the background 

pollutant concentration. NPDES permit 

reviews have shown that in many 

instances permitting authorities grant 

dilution allowances for pollutants 

assuming the complete absence of the 

pollutant in the upstream receiving 

waters. An assumption of ‘‘zero 

background’’ levels of a pollutant in an 

upstream water, in the absence of data 

or analyses to validate such an 

assumption, results in permit conditions 

that use as much as 100 percent of the 

receiving water’s dilution capacity to 

the discharging facility. Thus, in 

situations where some of the pollutant 

is actually present in the upstream 

waters, an assumption of ‘‘zero 

background’’ concentration 

overestimates the available assimilative 

capacity of the receiving water and 

could result in limits that are not 

protective of applicable WQS. EPA has 

long intended that permit writers 

should consider information regarding 

the actual assimilative capacity of the 

receiving waters and the amount of the 

pollutant already present in the 

receiving water when determining 

dilution allowances and mixing zones. 

The current regulations allow 

consideration of dilution ‘‘. . . where 

appropriate.’’ However, the current 

provision does not indicate what is 

meant by ‘‘appropriate.’’ EPA proposes 

to update its NPDES regulations 

concerning dilution allowances to 

clarify that while existing regulations 

allow consideration of dilution ‘‘where 

appropriate,’’ any allowance for dilution 

and mixing must be applied in a manner 


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19TSD Section 4 and Responsiveness Summary. 

See also EPA NPDES Permit Writers Manual (2010) 

Section 6.2 and EPA Water Quality Standards 

Handbook, Chapter 5 (General Policies). 

that will ensure that NPDES permits 

contain limits necessary to achieve 

WQS, as required by CWA 301(b)(1)(C) 

and 40 CFR 122.44(d)(1). This proposal 

is consistent with EPA’s longstanding 

guidance 19 that assumptions regarding 

dilution and mixing are appropriate 

only where relevant data or information 

are available to substantiate the 

assumption. 

EPA proposes clarifying 40 CFR 

122.44(d)(1) to specify that the 

appropriateness of any consideration of 

dilution or mixing must derive from the 

applicable state WQS, including any 

general policies related to dilution and 

mixing. Further, the proposed revision 

to 40 CFR 122.44(d)(1) would require 

that decisions regarding the assimilative 

capacity of the receiving water, for the 

purpose of determining a dilution 

allowance, must be supported by data or 

analyses quantifying or accounting for 

the presence or absence of each assessed 

pollutant or pollutant parameter in the 

receiving water. Conducting a basic 

background inquiry into a receiving 

water’s assimilative capacity would be 

necessary to grant the dilution 

allowance. Where the actual 

assimilative capacity of the receiving 

water cannot be accurately determined 

or predicted (e.g., by using data, models, 

or analyses), the permitting authority 

would be expected to establish effluent 

limits based on the application of 

applicable water quality criteria at the 

point of discharge (often referred to as 

‘‘criteria end-of-pipe’’) in order to 

ensure that the limits comply with CWA 

section 301(b)(1)(C). 

This revision would ensure that the 

permitting authority considers data or 

other available and applicable 

information before granting a dilution 

allowance for either rapid and complete 

or incomplete mixing. Under the 

proposed revisions, every time a 

dilution allowance is granted, assuming 

either rapid and complete or incomplete 

mixing, the permitting authority would 

be required to include a basis grounded 

in analyses of available information. 

This revision would not require the 

collection of new data and will not 

impose a new burden; it is intended to 

ensure that the permitting authority 

considers existing valid and 

representative ambient water quality 

data and to enhance decision-making 

transparency when permitting 

authorities consider a dilution 

allowance. States also may choose to 

collect data and information on the 

receiving water from the applicants, 

either prior to issuance of the permit or 

as a condition of the permit. Potential 

sources of data and information on 

ambient water quality and flow are 

maintained by regulatory agencies such 

as EPA, the United States Geological 

Survey (USGS) and state-level 

authorities. Dischargers, monitoring 

consortia, or non-governmental 

organizations may also provide ambient 

monitoring data for these analyses, 

although permitting authorities should 

ensure that all data used in any dilution 

analysis are subject to quality assurance 

and quality control. In limited 

circumstances (e.g., where ambient data 

are unavailable), permitting authorities 

may satisfy this requirement by 

conducting a qualitative analysis of the 

ambient level of a pollutant of concern; 

however, the analysis must be pollutantand site-specific, supported by the 

available information and documented 

in the record consistent with the revised 

provisions at 40 CFR 124.56(a)(1)(iv). 

EPA seeks comments on this 

proposed revision to 40 CFR 122.44(d). 

7. Reasonable Potential Determinations 

for New Discharges (40 CFR 122.44(d)) 

EPA proposes to revise 40 CFR 

122.44(d) to specify that a ‘‘reasonable 

potential’’ determination (explained 

below) must consider relevant 

qualitative or quantitative data, 

analyses, or other valid and 

representative information for 

pollutants or pollutant parameters that 

could support the need for effluent 

limitations for new discharges. 

Where TBELs are not sufficient to 

attain applicable WQS, CWA section 

301(b)(1)(C) requires that permits 

include any more stringent limits 

necessary to meet such standards. 40 

CFR 122.44(d)(1). These limits are 

known as water quality-based effluent 

limits, or WQBELs. EPA regulations 

state that ‘‘[l]imitations must control all 

pollutants or pollutant parameters 

(either conventional, nonconventional, 

or toxic pollutants) which the Director 

determines are or may be discharged at 

a level that will cause, have the 

reasonable potential to cause, or 

contribute to an excursion above any 

[s]tate water quality standard, including 

[s]tate narrative criteria for water 

quality.’’ 40 CFR 122.44(d)(1)(i). Based 

on this language, EPA refers to the 

process that a permit writer uses to 

determine whether a WQBEL is required 

in an NPDES permit as a reasonable 

potential analysis. NPDES PWM, 6.3.1. 

However, the current regulatory 

language is unclear regarding the types 

and quantities of data and information 

(including qualitative information) 

permitting authorities must consider 

when conducting a reasonable potential 

analysis. Because of this lack of clarity 

in the regulations, EPA has found that 

permitting authorities often defer the 

reasonable potential determination and 

development of WQBELs until a 

minimum data set has been collected. 

Permit reviews have also revealed a lack 

of reasonable potential determinations 

where quantitative data was not yet 

available, despite the availability of 

studies and effluent analyses for 

facilities with similar operations and 

effluent characteristics. 

Permit writers must determine 

whether the limits and conditions of an 

NPDES permit are as stringent as 

necessary to attain any applicable WQS. 

CWA section 301(b)(1)(C). Once the 

permitting authority determines that a 

discharge causes, has the reasonable 

potential to cause, or contributes to an 

excursion above water quality criteria, 

40 CFR 122.44(d)(1) requires the 

permitting authority to develop effluent 

limits to control the discharge of such 

pollutant(s). The cumulative impact of 

point and nonpoint sources on a water 

body may cause an excursion. In 

determining the need for a permit limit, 

the permitting authority must, at a 

minimum, consider existing controls on 

both point and nonpoint sources of 

pollution, the variability of the pollutant 

or pollutant parameter in the effluent, 

the sensitivity of the involved species to 

toxicity testing (when evaluating WET), 

and where appropriate, the effluent 

dilution in the receiving water. 40 CFR 

122.44(d)(1)(ii). EPA’s TSD specifically 

discusses conducting a reasonable 

potential evaluation in the ‘‘absence of 

effluent data.’’ These factors include the 

type of discharge, the available dilution, 

the type of receiving water and 

designated use, existing data on toxic 

pollutants and the history of compliance 

problems and toxic impact. TSD 3.2. 

The NPDES PWM similarly suggests 

that permit writers use ‘‘any available 

effluent and receiving water data as well 

as other information pertaining to the 

discharge and receiving water,’’ 

including type of industry, existing 

TBELs, compliance history and stream 

surveys. NPDES PWM, 6.3.2. 

Consistent with this existing guidance 

and policy, this proposal would require 

the Director to make a reasonable 

potential determination based on 

relevant qualitative or quantitative data, 

analyses or other valid and 

representative information for 

pollutants or pollutant parameters that 

could support the need for effluent 

limitations. When determining effluent 

limitations for new dischargers where 

effluent data is not yet available, 


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20http://www.epa.gov/eg/industrial-effluentguidelines. 

21TSD section 3.2. See also Final Guidance on 

Appalachian Surface Coal Mining, 2011: ‘‘[i]n 

conducting a reasonable potential analysis, all valid 

representative qualitative and quantitative 

information regarding the effluent and receiving 

water should be used.’’. 

permitting authorities can use existing 

monitoring data and other studies that 

have been conducted at similar 

facilities. The existing application 

form(s) for new dischargers specifically 

require applicants to describe their 

planned flows, sources of pollution, and 

treatment technologies for each 

proposed outfall and to provide 

estimates of the concentrations of 

pollutants expected to be present in the 

effluent upon commencement of 

discharge. Applicants must also provide 

the name and location of any existing 

plant(s) which resemble the proposed 

facility with respect to production 

processes, wastewater constituents, or 

wastewater treatments. In addition, if an 

applicant is in an industrial category for 

which EPA has developed effluent 

limitations guidelines (ELGs), EPA has 

published development documents for 

every approved guideline 20 that 

provides detailed effluent 

characterization data that can be used to 

estimate the types and quantities of 

pollutants that might be discharged. 

This proposed revision would codify 

EPA’s long-standing policy that the 

permitting authority should consider 

available and relevant data and 

information (as described above) 

pertaining to the discharge in order to 

make an informed judgment.21 This 

proposed change would ensure that 

permitting authorities consider a wide 

range of available information to 

characterize new and existing 

discharges to determine the need for 

permit limits that adequately protect 

WQS. This revision would not require 

collecting new data beyond that already 

required through permit applications 

and would ensure that the permitting 

authority is transparent in its decisionmaking process when determining the 

need for an effluent limit, even for 

applicants that have yet to commence 

discharge. This proposal would not 

require collecting new data. However, 

this proposed revision would codify 

EPA’s long-standing policy and 

guidance that, while the permitting 

authority has the discretion to prioritize 

the importance of available and relevant 

data and information used in making a 

determination on a case-by-case basis, it 

may not disregard valid information that 

is useful in conducting a reasonable 

potential analysis. 

EPA seeks comments on this 

proposed revision to 40 CFR 122.44(d). 

8. Best Management Practices (BMPs) 

(40 CFR 122.44(k)(4) 

(a) Contact Information 

EPA is correcting publication contact 

information included in the Note to 

§ 122.44(k)(4) by deleting outdated 

references to information sources that 

are no longer available to read: 

‘‘Additional technical information on 

BMPs and the elements of BMPs is 

contained in the following documents: 

Guidance Manual for Developing Best 

Management Practices (BMPs), October 

1993, EPA No. 833/B–93–004, NTIS No. 

PB 94–178324, ERIC No. W498); Storm 

Water Management for Construction 

Activities: Developing Pollution 

Prevention Plans and Best Management 

Practices, September 1992, EPA No. 

832/R–92–005, NTIS No. PB 92–235951, 

ERIC No. N482); Storm Water 

Management for Construction Activities, 

Developing Pollution Prevention Plans 

and Best Management Practices: 

Summary Guidance, EPA No. 833/R– 

92–001, NTIS No. PB 93–223550; ERIC 

No. W139; Storm Water Management for 

Industrial Activities, Developing 

Pollution Prevention Plans and Best 

Management Practices, September 1992; 

EPA 832/R–92–006, NTIS No. PB 92– 

235969, ERIC No. N477; Storm Water 

Management for Industrial Activities, 

Developing Pollution Prevention Plans 

and Best Management Practices: 

Summary Guidance, EPA 833/R–92– 

002, NTIS No. PB 94–133782; ERIC No. 

W492. EPA guidance documents can be 

obtained through the National Service 

Center for Environmental Publications 

(NSCEP) at http://www.epa.gov/nscep. 

In addition, States may have BMP 

guidance documents.’’ 

9. Anti-Backsliding (40 CFR 122.44(l)) 

EPA proposes to revise 40 CFR 

122.44(l) to incorporate the antibacksliding provisions that are currently 

in the CWA and have not yet been 

incorporated into the NPDES 

regulations. As a general matter, the 

anti-backsliding provisions prohibit the 

renewal, modification or reissuance of 

an NPDES permit with effluent 

limitations that are less stringent than 

the effluent limitations that existed in 

the prior permit. Anti-backsliding 

requirements are found in the CWA in 

sections 402(o) and 303(d)(4) and in the 

NPDES regulations at 40 CFR 122.44(l). 

EPA revised the existing regulatory 

language at 40 CFR 122.44(l) in January 

1989 under the 1987 WQA. 54 FR 245. 

The WQA amended the CWA to include 

sections 402(o) and 303(d)(4). EPA’s 

1989 regulatory revision did not, 

however, incorporate the entirety of the 

WQA’s provisions on anti-backsliding. 

The proposed revision would 

incorporate into the NPDES regulations 

the omitted WQA anti-backsliding 

provisions applicable to effluent 

limitation. 

The following is a list of the antibacksliding sections and where EPA 

proposes to incorporate them into the 

regulation: The second sentence of CWA 

section 402(o)(1) would be incorporated 

into 40 CFR 122.44(l) as a new section 

122.44(l)(2); the second sentence of 

CWA section 402(o)(2)(E) would be 

incorporated into 40 CFR 122.44(l) as a 

note at the end of § 122.44(l)(2); and 

CWA sections 303(d)(4)(A) and 

303(d)(4)(B) would be incorporated into 

40 CFR 122.44(l) as new 

§§ 122.44(l)(3)(i) and 122.44(l)(3)(ii), 

respectively. In each case, EPA is 

incorporating statutory language 

verbatim. 

Since EPA is including antibacksliding statutory language verbatim, 

EPA is not seeking comments on the 

added language or on the existing 

regulation. 

10. Design Flow for POTWs (40 CFR 

122.45(b)) 

EPA proposes revisions to 40 CFR 

122.45(b) to clarify that permit writers 

would be required to calculate permit 

effluent limits for POTWs using design 

flow only where the limits are based on 

technology standards. The revisions 

would provide permit writers with 

additional flow options for calculating 

WQBELs. The existing regulation 

applies to production-based limits and 

currently states that POTW permit 

effluent limitations, standards or 

prohibitions shall be calculated based 

on design flow. The current regulation 

at 40 CFR 122.45(b)(2)(i) provides that 

for dischargers other than POTWs, 

permit effluent limitations, standards or 

prohibitions shall be based upon ‘‘a 

reasonable measure of actual production 

of the facility.’’ This has led to some 

confusion as to whether the requirement 

for POTW ‘‘production-based’’ limits 

should be applied to the calculation of 

WQBELs. This requirement pre-dates 

EPA’s current WQBEL regulations 

developed to address the 1987 WQA. 

The administrative record for the 

existing regulations provides no 

indication that the production-based 

requirement was intended to apply to 

the calculation of WQBELs. 

The CWA does not provide any 

indication that WQBELs for POTWs 

should be derived in a manner that is 

distinct from other categories of 

dischargers. When determining the need 


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31356 Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Proposed Rules 

22 40 CFR 122.21(d)(2) requires that an existing 

permittee submit a new permit application 180 days 

before an existing permit expires. 

23See, American Farm Bureau Federation v. 

Whitman (D.C. Cir. No. 00–1320 and consolidated 

cases). 

for WQBELs or calculating WQBELs for 

any type of discharger, permitting 

authorities generally use data and 

analyses to predict the impact of a 

discharge on a receiving water. In 

conducting these analyses, permitting 

authorities use data (including effluent 

flow values) that most accurately reflect 

the conditions in the discharge and the 

receiving water. Because there is no 

inherent difference in the validity and 

process for modeling POTW versus nonPOTW discharges, EPA has concluded 

that the option to use effluent flows 

other than design flow should be made 

available to permit writers when 

calculating WQBELs for POTWs. 

Where the POTW limits are water 

quality-based, such limits could be 

based on effluent flows other than 

design flow (e.g., actual flow, estimated 

flow). Therefore, EPA proposes to 

clarify that permitting authorities 

developing WQBELs for POTWs have 

the same flexibility to base calculations 

on effluent flows as they do for the 

development of WQBELs for all other 

dischargers. 

This option would be appropriate 

when modeling the impact of any type 

of pollutant, including when BOD and 

suspended solids are used as surrogate 

parameters for applicable WQS. 

Although this proposal would clarify 

this flexibility for POTWs, it is not 

intended to preclude or restrict a 

permitting authority from using the 

POTW design flow for the purpose of 

developing WQBELs. In many cases, the 

POTW design flow is a reasonable and 

appropriate value for use in water 

quality modeling, and this proposed 

clarification is not intended to 

discourage permitting authorities from 

current practices under which design 

flow is used for WQBEL development. 

This proposed revision provides 

additional flexibility for permit writers 

in calculating effluent limitations and 

will not impose new burden. 

EPA seeks comments on this 

proposed revision. 

B. Proposed Revisions to Part 123 

1. Objection to Administratively 

Continued Permits (40 CFR 123.44) 

EPA proposes revising 40 CFR 123.44 

to allow EPA to designate certain 

administratively continued permits as 

‘‘proposed permits.’’ 

Section 402(d) of the CWA generally 

provides that authorized state NPDES 

permitting authorities should submit 

proposed state permits to the EPA 

Administrator for review and objection, 

where deemed appropriate. 40 CFR 

123.44. MOAs between EPA and the 

authorized state provide the timeframe 

within which each EPA Regional 

Administrator (RA), to whom the review 

and objection duties have been 

delegated, may comment on or object to 

a proposed permit, up to 90 days from 

receipt of the proposed permit. Within 

this time period, the RA must submit to 

the State Director a statement of the 

reasons for any objection, and the 

effluent limitations and conditions that 

such permit would include if it were 

issued by the RA. 

When a permittee has submitted a 

timely and complete renewal 

application but the State Director has 

not acted on the permittee’s application 

before the existing permit expires, state 

laws often provide that the existing 

permit continues in effect by operation 

of law until the state takes final action 

on the permittee’s application (that is, 

until the state makes a final decision to 

issue or not issue the new permit). This 

is often referred to as ‘‘administrative 

continuance.’’ These state laws, like the 

corresponding federal provisions in 40 

CFR 122.6 and the federal 

Administrative Procedure Act (APA) at 

5 U.S.C. 558(c), aim to protect a 

permittee that has submitted a timely 

and complete application for renewal 

from losing its authorization to 

discharge simply because the permitting 

authority did not issue a new permit 

before the existing permit expired.22

In some cases, administratively 

continuing expired permits provides 

states with flexibility to prioritize their 

action without significant adverse 

impacts on receiving waters. However, 

administrative continuance also can 

lead to inappropriate delays in reissuing 

permits that need revision to comply 

with current regulatory and statutory 

requirements and policy practices. State 

administrative continuance laws 

typically allow an expired permit to 

remain administratively continued 

indefinitely, which can significantly 

delay the implementation of revised or 

new effluent limitations (both 

technology-based and water-quality 

based). Under EPA’s existing 

regulations, there is no mechanism by 

which to invoke EPA’s permit review 

and objection authority to avoid 

indefinite delays in permit reissuance. 

A lengthy administrative continuance of 

a permit can significantly delay 

implementation of new effluent 

guidelines, WQS or TMDLs, and such a 

delay can affect a permitting authority’s 

ability to protect water quality. As of 

September 2015, there were 

approximately 17,000 facilities covered 

by expired non-tribal and tribal permits 

(both state and EPA-issued, not 

including facilities covered by nonmajor stormwater permits). 

Under this proposed revision, expired 

permits that have been administratively 

continued and are considered 

environmentally significant may be 

subject to objections by EPA regional 

offices. EPA would expect to exercise 

this authority only in very limited 

circumstances, such as for permits 

involving environmental and public 

health issues, where other means of 

working with the state to reissue an 

updated permit have failed. Under the 

current regulations, the RA may review 

and object to an NPDES permit that an 

authorized state proposes to issue. 40 

CFR 123.44. EPA proposes adding a new 

mechanism that grants the RA 

discretion to initiate these procedures 

where the state has not reissued an 

expired, administratively continued 

permit. The RA would have discretion 

to exercise this authority if a state does 

not produce a draft permit within a 

certain period of time, as described 

below. If a state has not reissued an 

expired, administratively continued 

permit, the state would be encouraged 

to explain to EPA the reasons for not 

reissuing the expired permit and EPA 

would carefully consider any such 

explanation before proceeding with an 

objection, as further described below. 

Consistent with 40 CFR 122.6(d), 

which currently addresses 

administratively continued permits, the 

proposed regulation would apply to 

only those expired state-issued permits 

for which state law has provided for 

continuation of the expired permit. The 

new provision would not apply to 

expired permits that have not been 

administratively continued, nor would 

it apply to other unpermitted 

discharges. A similar regulatory change 

allowing for EPA objection to 

administratively continued permits, 

under certain conditions, was 

previously proposed, commented on 

and finalized as a part of EPA’s July 

2000 Total Maximum Daily Load 

(TMDL) Rule. 68 FR 13608. However, 

the final rule was withdrawn in March 

2003 as a result of widespread 

controversy and disagreement over the 

rule and its legal authority, including a 

case filed in the D.C. Circuit Court.23 It 

is important to note, however, that the 

TMDL rule and disagreement over its 

legal authority were not based on 

concerns regarding the proposed section 

on administratively continued permits. 


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24See 33 U.S.C. 1311(b)(1)(C) (requiring that 

‘‘there shall be achieved . . . any more stringent 

limitation, including those necessary to meet water 

quality standards, treatment standards, or schedule 

of compliance, established pursuant to any State 

law or regulations . . . or any other federal law or 

regulation, or required to implement any applicable 

water quality standard established pursuant to this 

Act’’). 

25 Jim Hanlon, ‘‘Permitting for Environmental 

Results: Permit Issuance and Priority Permits,’’ 

March 5, 2004, available at http://www3.epa.gov/

npdes/pubs/prioritization_memo3-5-04.pdf. 26 Id. 

In fact, many of the comments received 

by EPA expressed support for this 

proposed revision. EPA received a 

number of comments stating that EPA 

has an obligation under the CWA to 

ensure that all state programs and stateissued permits comply with the 

requirements of the Act. Some 

expressed the view that the language 

proposed in the 2000 rule was unduly 

limited, because it would have limited 

EPA’s review of expired permits to only 

those expired permits authorizing 

discharges to waters that do not attain 

and maintain WQS, and that EPA 

should be allowed instead to review and 

potentially object to, if necessary, all 

administratively continued permits, not 

just those permits for which WQS and 

TMDLs are of concern. 

Given the current backlog of 

administratively continued state 

permits, EPA views this proposed 

revision as providing an important 

potential mechanism through which to 

carry out its authorities under the CWA. 

33 U.S.C. 1361(a). Under CWA section 

402(c)(2), authorized state programs 

must comply with the requirements of 

the Act including CWA section 

402(b)(1)(B), which provides that 

NPDES permits may not be issued for 

periods exceeding five years. The 

purpose of this statutory limitation is to 

ensure that permits be reviewed and 

revised regularly by the state, and by 

EPA in its CWA 402(d) oversight role, 

to ensure compliance with the Act and 

its implementing regulations, including 

those pertaining to both TBELs and 

WQBELs.24 The proposed revision 

would provide EPA with the ability to 

further this Congressional intent to 

protect water quality by ensuring that 

permitting authorities consider effluent 

guidelines, WQS, and TMDLs that have 

been promulgated since the existing 

administratively continued permit was 

issued. 

EPA currently addresses expired, 

administratively continued permits 

through its ‘‘priority permits’’ measure. 

Priority permits are those permits that 

have been expired longer than two 

years, and which EPA has asked the 

permitting authority to target for 

reissuance. EPA’s general trigger for 

identifying priority permits is when a 

permit is expired two years (outlined in 

a 2004 memorandum from the Director 

of EPA’s Office of Wastewater 

Management to EPA’s Regional Water 

Division Directors on the topic of permit 

issuance, priority permits and 

permitting backlog).25

EPA proposes that an administratively 

continued permit could be designated as 

‘‘proposed’’ after either a two-year or 

five-year period following the initial 

five-year permit term, and is seeking 

comment on which time frame is 

appropriate. A two-year period after 

which an administratively continued 

permit could be designated by EPA as 

‘‘proposed’’ would be consistent with 

EPA’s general trigger for identifying 

priority permits. EPA’s view is that it is 

reasonable to consider a two-year delay 

as an indication that the state is unable 

to take action on the permit. A five-year 

period after which an administratively 

continued permit could be designated as 

‘‘proposed’’ would allow for EPA to first 

address the administratively continued 

permit through the priority permits 

measure. A five-year expired permit 

would be designated as a priority permit 

after being expired for two years, and 

the state would have had at least three 

additional years to work on and reissue 

the permit. Additionally, a five-year 

expired permit would have been 

expired for an entire permit cycle. EPA’s 

view is that it is reasonable for a state 

to take action to reissue a permit that 

has been expired and administratively 

continued for five years. 

EPA expects to exercise its discretion 

to use this authority only in very limited 

circumstances, such as for particularly 

environmentally significant permits, to 

ensure that these expired permits may 

be reissued in a timelier manner and, 

when reissued, reflect the most current 

statutory and regulatory requirements. 

EPA has used the priority permits 

measure since 2004 to target 

administratively continued permits 

which should be a priority for 

reissuance. The parameters by which 

permits generally may be designated as 

priority permits were identified in the 

above referenced 2004 memorandum, 

which is included in this rule’s docket. 

EPA is considering using similar 

parameters to identify permits for 

candidates for administratively 

continued permit objections. Under this 

approach, permits with the following 

significant adverse impacts, changes or 

issues could be potential candidates for 

the new objection process: 

• New or revised water quality 

standards; 

• New or revised effluent limitations 

guidelines; 

• Potentially significant impacts to an 

impaired or threatened waterbody; 

• Potentially significant impacts to a 

drinking water resource; 

• National program priorities (e.g., 

Combined Sewer Overflow, 

Concentrated Animal Feeding 

Operations); 

• Protection of threatened or 

endangered species; 

• Significant changes to a facility’s 

operations, treatment, or effluent 

characteristics; or 

• Public concerns or environmental 

justice issues.26

Under the proposed provision, EPA 

would be required to give the state and 

the permittee notice of its intent to 

designate the administratively 

continued permit as a proposed permit 

submitted to EPA for review under 40 

CFR 123.44. EPA proposes to give the 

state and the permittee 180 days’ notice 

of its intent to designate an 

administratively continued permit as a 

proposed permit, and is requesting 

comment on whether this time frame is 

appropriate. This proposed provision 

would not create a new mechanism for 

EPA to take over a state’s NPDES 

permit. During EPA’s review of the 

‘‘designated’’ proposed permit, the state 

permitting authority may decide to 

proceed with the development of its 

own draft or proposed permit. EPA 

would encourage this effort, as the 

intent is always to have a state 

permitting authority reissue an 

administratively continued permit 

incorporating all of the appropriate 

terms and conditions. For this reason, 

the proposed amendment provides that 

if the state, under 40 CFR 123.43(a), 

submits a draft or proposed permit for 

EPA review at any time before authority 

to issue the permit would pass to EPA 

under 40 CFR 123.44(h), EPA would 

withdraw its designation of the 

administratively continued permit as a 

proposed permit. EPA would then 

review the state’s draft or proposed 

permit in accordance with the 40 CFR 

123.44 procedures. If, after EPA reviews 

the permit under 40 CFR 123.44, the 

state does not proceed with the timely 

issuance of the final permit (within 180 

days of the completion of EPA’s review), 

EPA may again determine that the state 

does not intend to reissue the permit 

and may reassert its previous 

determination that the administratively 

continued permit is to be designated as 

a proposed permit. EPA would then 

proceed with the review of the 

designated ‘‘proposed’’ permit at the 


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point in the process where the state 

submitted its draft or proposed permit. 

EPA is seeking comments on whether 

to make this proposed regulatory 

change. Specifically, EPA seeks 

comments on whether considering 

administratively continued permits as 

‘‘proposed permits’’ under CWA section 

402(d) would effectively achieve EPA’s 

goal of more timely reissuance of state 

NPDES permits, or whether EPA should 

consider other regulatory mechanisms 

to achieve this goal. EPA is also seeking 

comment on the potential parameters or 

criteria that EPA could use to more 

clearly define or limit the scope of this 

administratively continued permit 

objection process, including but not 

limited to those described in the 

memorandum referenced above, and 

whether any such parameters or criteria 

should be included in regulatory 

language. Additionally, EPA seeks 

comments on whether two years, or five 

years, or some other time period is the 

appropriate threshold at which EPA 

may designate an administratively 

continued permit as a proposed permit 

for the purposes of exercising its 

objection authority, and whether the 

proposed 180 days or some other period 

of time is an appropriate notice period 

for EPA to notify the state and permittee 

of its intent to designate the 

administratively continued permit as a 

proposed permit. Specifically, if 

commenters believe other time periods 

for designating proposed permits and 

providing notice would be appropriate, 

EPA requests comments describing the 

reasoning for such time frames. 

C. Proposed Revisions to Part 124 

1. Public Notice Requirements (40 CFR 

124.10(c)) 

EPA proposes revising 40 CFR 

124.10(c) to allow permitting authorities 

to provide public notice of permitting 

actions for NPDES major individual and 

general permits on the permitting 

authority’s publicly available Web site 

in lieu of the newspaper publication 

requirement. 

CWA section 402(b)(3) requires that 

notice be provided to the public, as well 

as any other state whose waters may be 

affected, of each NPDES permit 

application and that an opportunity be 

provided for a public hearing before 

ruling on each permit application. 33 

U.S.C. 1342(a)(1). In addition, the 

statute provides that ‘‘public 

participation in the development, 

revision and enforcement of standard, 

effluent limitation, plan, or program 

established by the Administrator or any 

State under [the CWA] shall be provided 

for, encouraged, and assisted by the 

Administrator and the States.’’ 33 U.S.C. 

1251(e). EPA’s regulations also address 

the issue of public participation in its 

programs. 40 CFR 124.10. 40 CFR part 

25 sets forth minimum requirements for 

public participation under the CWA, 

RCRA and SDWA. 40 CFR 25.4(b) 

explains that ‘‘providing information to 

the public is a necessary prerequisite to 

meaningful, active public involvement. 

Agencies shall design informational 

activities to encourage and facilitate the 

public’s participation in all significant 

decisions . . . particularly where 

alternative courses of action are 

proposed.’’ These minimum 

requirements are intended to be met not 

only by EPA but also by authorized 

states and state agencies. In clarifying 

the minimum requirements for public 

participation, 40 CFR part 25 highlights 

that the requirements for public 

information, public notification and 

public consultation are ‘‘intended to 

foster public awareness and open 

processes of government decision 

making and are applicable to all covered 

activities and programs.’’ 40 CFR 

25.3(c)(7) specifically emphasizes that 

agencies should ‘‘use all feasible means 

to create opportunities for public 

participation, and to stimulate and 

support participation.’’ Neither the 

CWA nor its implementing regulations 

specify the best or preferred method for 

providing notice to the public. 

Currently, 40 CFR 124.10(c)(2)(i) 

requires notice of specified NPDES 

permitting activities, such as 

preparation of a draft permit, through 

publication ‘‘in a daily or weekly 

newspaper within the area affected by 

the facility or activity.’’ Indeed, 

publication of public notice in 

newspapers was appropriate when 40 

CFR 124.10(c)(2)(i) was promulgated in 

1982, 12 years before the internet 

became widely available for public and 

commercial use. Web sites are often 

more appropriate avenues for widely 

disseminating information to the public 

and many states currently supplement 

the required newspaper publication by 

posting draft and final permits on their 

state Web sites. 

EPA proposes revising 40 CFR 

124.10(c) to allow permitting authorities 

(EPA, state, tribe and territories) to 

provide public notice for activities 

listed under 124.10(a) on the permitting 

authority’s publicly available Web site 

in lieu of the newspaper publication 

requirement. If a permitting authority 

exercises this option, the permitting 

authority would be required to meet all 

of the required elements of § 124.10(c) 

and also post all draft permits and fact 

sheets on the Web site during the public 

comment period and post all final 

permits, fact sheets and response to 

comments on the Web site for the entire 

term of the permit. The purpose of this 

revision would be to provide states and 

EPA with an alternative method of 

providing notice of permit applications 

and hearings, and affirm flexibility in 

reaching the public through a variety of 

methods that would greatly expand 

public access to the draft and final 

permits and fact sheets. 

This option would not in any way 

affect the requirements of 40 CFR 

124.10(c)(1)(ix) which state that a copy 

of the notice must be mailed directly to 

persons who have joined the 

appropriate mailing list. This option 

also would not alter the original 

requirements of 40 CFR 124.10(c)(2)(i) if 

a permitting authority chooses to 

continue the traditional method of 

providing notice of an NPDES permit 

action in a newspaper publication. Also, 

this option would not alter the existing 

requirements for other types of permits 

covered in this section (i.e. RCRA, UIC, 

section 404). In addition, none of the 

other existing public notice regulatory 

requirements would be affected by this 

proposed revision to 40 CFR 124.10(c). 

The proposed revision is intended to 

supplement and expand EPA’s efforts to 

reach communities through a variety of 

methods. By allowing each permitting 

authority to determine whether 

newspaper publication, internet notice, 

or a combination of these methods is the 

most effective method for its 

communities, EPA expects an increase 

in effective dissemination of 

information to communities and 

transparency. 

Finally, nothing in the proposed 

revisions to 40 CFR 124.10(c) is 

intended to alter or affect the notice 

requirements for issuance of a final 

permit decision in 40 CFR 124.15. 

Section 124.10(a) establishes notice 

requirements as to certain enumerated 

actions, but those actions do not include 

‘‘issuance’’ of a final permit decision, 

the requirements for which are 

established in 40 CFR 124.15. The 

inclusion in the proposed revision to 40 

CFR 124.10(c) of an internet posting 

requirement in certain circumstances for 

final permits is not intended to imply 

that internet posting fulfills the final 

permit decision notice requirements of 

40 CFR 124.15. 

EPA is seeking comment on an 

alternative option for revising 40 CFR 

124.10(c) that would require NPDES 

permitting authorities to public notice 

all NPDES permits and hearings on the 

permitting authority’s publicly available 

Web site. This option could be 

implemented over a period of time (e.g., 

within five years), and states would 


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27Courts have consistently recognized that the 

critical aspect of public notice is not the particular 

means of giving notice, but rather that the selected 

method is reasonably calculated to provide that 

notice. In discussing service of process by email, 

the 9th Circuit Court has described in broad 

language a court’s authority to adapt its procedures 

to meet technological advances as follows: ‘‘In 

proper circumstances, this broad constitutional 

principle [i.e., that the selected method of service 

must be reasonably calculated to provide notice and 

an opportunity to respond] unshackles the Federal 

courts from anachronistic methods of service and 

permits them entry into the technological 

renaissance.’’ Rio Properties, Inc. v. Rio 

International Interlink, 284 F.3d 1007, 1017 (9th 

Cir. 2002). 

28Morris, Traci L, and Sascha D. Meinrath. ‘‘New 

Media, Technology and Internet Use in Indian 

Country’’ Native Public Media, available at http:// 

www.atalm.org/sites/default/files/NPM-NAF_New_

Media_Study_2009_small.pdf. 

29See, ‘‘Enhancing Environmental Justice in EPA 

Permitting Program.’’ National Environmental 

Justice Advisory Council. April, 2011, available at 

http://www3.epa.gov/environmentaljustice/

resources/publications/nejac/ej-in-permittingreport-2011.pdf 

30 Id., p.20. 

continue to have the flexibility to use 

print media and other methods in 

addition to the publicly available Web 

site. It could include a provision 

allowing NPDES permitting authorities 

the flexibility to solely use newspapers 

and other print media under certain 

circumstances such as in areas with 

limited broadband internet access, in 

areas with NPDES-regulated entities 

owned or operated by identifiable 

populations (e.g., Amish, Mennonite, 

and Hutterite) who do not use certain 

technologies (e.g., computers or 

electricity), and during large-scale 

disasters (e.g., hurricanes) or prolonged 

electrical system outrages. Providing the 

permitting authority with the flexibility 

to phase in use of their public Web sites, 

as well as the ability to opt out of its use 

under certain circumstances, would be 

consistent with EPA’s approach to 

required electronic reporting of NPDES 

information in its NPDES Electronic 

Reporting Rule in Part 127. Requiring 

permitting authorities to use their 

publicly available Web site to post all 

NPDES permit and hearing information 

could help advance EPA’s commitment 

in its 2009 Clean Water Act 

Enforcement Action Plan and in its 

NPDES Electronic Reporting Rule to 

improve and enhance public access to 

information. 

EPA is also seeking comment on 

whether proposed revisions to public 

notice requirements in 40 CFR 124.10(c) 

should be expanded to include NPDES 

non-major individual and general 

permits. This would increase public 

access to permit and hearing 

information on the entire NPDESpermitted universe. 

In addition, EPA is seeking comments 

on ways in which NPDES permits and 

fact sheets could be posted 

electronically to make it easier for EPA’s 

Enforcement and Compliance History 

Online (ECHO) information system to 

link to the permit fact sheets (e.g., one 

state posts NPDES permits on its Web 

site by embedding the NPDES 

identification number into the URL). 

Given the wide availability of the 

internet, it is EPA’s view that 

publication through such means would 

be effective in informing the public of 

all such permit applications and 

hearings.27 EPA is proposing that where 

the permitting authority opts to post this 

information on the Web site in lieu of 

newspaper publication, it must post all 

notices to its Web site to maintain one 

repository of public notice documents. 

EPA seeks comment on its proposal to 

require a permitting authority to post all 

notices on its Web site if it seeks to use 

its Web site in lieu of a newspaper 

notice for permit-related information. 

A permitting authority that uses the 

web in lieu of a newspaper to post 

notices could realize significant 

financial savings and post more 

information over a longer period of 

time, fostering greater public access to 

information and greatly reducing state 

burden with regard to public notice. 

Providing the draft permit and fact sheet 

during the full public comment period 

and making the final permit 

electronically available over the lifetime 

of the permit can significantly increase 

the public’s access to permitting 

information compared to the single-day 

newspaper notice and access to paper 

copies of the permit at the agency’s 

office. 

EPA has carefully evaluated the 

potential effect of this proposed revision 

on underserved communities with 

environmental justice (EJ) concerns. 

EPA consulted a recent study conducted 

by Native Public Media that found that 

the primary source for national and 

international news among Native 

American tribes is the internet.28

Newspapers were listed as only the 

third most commonly used source for 

news. EPA also consulted the recently 

finalized National Environmental 

Justice Advisory Council (NEJAC), EJ in 

Permitting Subgroup Report.29 The 

report states that ‘‘[n]otification of the 

public by publishing in the legal section 

of regional newspapers is antiquated 

and ineffective. This method should not 

be counted on to communicate, even if 

legally required.’’ 30 The NEJAC 

specifically listed Web site postings as 

a method to ensure meaningful public 

participation. Thus, based on the EJ in 

Permitting Subgroup Report’s results, 

EPA concludes that notice via the 

internet would be a viable and effective 

means of making information widely 

available to the public. Permitting 

authorities are encouraged to provide 

additional notice where the Director 

determines that a specific jurisdiction or 

population would be better served with 

notice by means of the internet or a 

newspaper. 

EPA seeks comments on both the 

proposed revision and on the possible 

alternative option described. 

2. CWA Section 401 Certification 

Process (40 CFR 124.55(b)) 

40 CFR 124.55(b) addresses the 

circumstances under which a state may 

issue a modified CWA section 401 

certification in connection with an EPAissued NPDES permit and the effect of 

a modified section 401 certification on 

such a permit. Pursuant to this 

regulation, if a court of competent 

jurisdiction or an appropriate state 

board or agency invalidates a 

certification condition after final agency 

action on the permit, EPA can modify 

such permits only to delete state 

certification conditions upon request of 

the permittee. Under the current rule, 

EPA cannot modify already-issued 

permits to reflect state court, board or 

agency decisions that would require the 

state certifications (and arguably the 

federal permits subject to that 

certification) to include more stringent 

provisions. 

The proposed revisions to 40 CFR 

124.55(b) would broaden the 

circumstances under which federal 

NPDES permits can be modified after 

issuance to include the addition of 

permit conditions based on more 

stringent section 401 certification 

provisions that result from state 

administrative or judicial decisions. 

Such permit modifications may be 

requested by anyone and not just the 

permittee. This change would recognize 

the importance of state administrative 

and judicial review process for CWA 

section 401 certifications by allowing 

decisions made by state administrative 

bodies and courts regarding challenges 

to state certification conditions to be 

fully reflected in the federal permit, 

even after the permit is issued. If, upon 

review, a state administrative body or 

court determines that more stringent 

section 401 certification conditions are 

necessary to adequately protect water 

quality or to be consistent with state 

laws, EPA would have the discretion to 

modify already-issued federal permits to 

include those more stringent conditions. 

It is EPA’s view that its current ability 

to only delete section 401 certificationbased permit conditions hinders its 


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ability to ensure that permits are 

environmentally protective and that 

they reflect the most up-to-date state 

administrative and judicial 

determinations. EPA is not able to 

estimate the number of state 

administrative or judicial 

determinations there may be that 

determine that more stringent 

conditions are necessary. EPA therefore 

cannot predict how often this proposed 

provision may be used. However, it is 

EPA’s view that even if used rarely, this 

provision would be an important tool 

for EPA to be able to modify its permits 

in order to implement limits that better 

protect water quality. 

EPA seeks comments on this 

proposed revision, including comments 

that estimate how often this provision 

may be used and on any anticipated 

impacts. 

3. Fact Sheet Requirements (40 CFR 

124.56) 

EPA proposes to revise 40 CFR 124.56 

to require specific documentation in the 

fact sheet developed to support an 

individual or general permit. Fact 

sheets, required for major NPDES 

permits and general permits per 40 CFR 

124.8, ‘‘sets forth the principal facts and 

the significant factual, legal, 

methodological, and policy questions 

considered in preparing the draft 

permit.’’ NPDES PWM, 11.2.2. The 

existing regulations at 40 CFR 124.56 

contain basic requirements for 

information that must be presented in a 

fact sheet. It is EPA’s view that more 

precisely outlining the required fact 

sheet information would result in more 

comprehensive and focused fact sheets, 

and correspondingly, would facilitate 

more efficient, transparent and effective 

documentation of permitting decisions. 

The proposed revisions to 40 CFR 

124.56(a) are in two parts—one part for 

individual permits and one part for 

general permits. This accommodates 

differences in the information that 

permit writers use to develop effluent 

limits and conditions for individual 

facilities versus the information used to 

develop effluent limits and conditions 

for multiple facilities covered under one 

general permit. 

EPA specifically seeks comments on 

proposed revisions to fact sheet 

requirements, as described below. 

(a) 40 CFR 124.56 Revisions to Fact 

Sheet Contents 

40 CFR 124.56(a) 

An NPDES permit is developed based 

on careful consideration of existing data 

and available information relevant to 

the potential discharge. While the 

permit itself contains the terms and 

conditions required of the permittee, the 

rationale and basis for the decisions 

made in developing those terms and 

conditions are contained within the fact 

sheet and administrative record for that 

permit. The existing regulations at 40 

CFR 124.56 contain basic requirements 

for information that must be presented 

in a fact sheet. 

However, EPA reviews of state-issued 

NPDES permits within the past ten 

years have identified widespread 

deficiencies in state fact sheet quality. 

Many fact sheets do not meet the 

requirements of the existing regulations. 

Currently, many fact sheets omit critical 

information regarding limitation 

development, such as available water 

quality data, impairment status, 

existence and implementation of 

TMDLs and implementation of 

antidegradation policies. Furthermore, 

while the existing regulation at 40 CFR 

124.56(a) requires fact sheets to 

generally include ‘‘calculations and 

other necessary explanation,’’ it does 

not explicitly identify what is required 

in terms of ‘‘calculations’’ or ‘‘other 

necessary explanation.’’ Fact sheet 

quality and clarity affects permittees’ 

and the public’s ability to meaningfully 

participate in the permitting process. It 

is EPA’s view that the public and permit 

applicants should have access to a clear 

and transparent record of the permit 

decision making process. By clearly 

explaining what the 40 CFR 124.56(a) 

‘‘calculations and other necessary 

explanations’’ requirement means, this 

proposed revision would enable all 

NPDES permitting authorities to know 

precisely the kind of thorough and 

transparent explanations fact sheets 

should contain to create this clear 

record. EPA also expects that these 

clarifications will enable permittees and 

other members of the public to more 

easily understand the permit limit 

development record. 

Where the proposed regulation 

requires an ‘‘explanation,’’ ‘‘information 

sufficient,’’ ‘‘discussion’’ or a 

‘‘description,’’ the proposed language in 

40 CFR 124.56(a) allows the fact sheet 

to include a brief summary of the 

required information along with a 

specific reference to the source 

document in the administrative record. 

This would relieve the permitting 

authority from repeatedly providing this 

information. EPA is clarifying, however, 

that where the proposed regulations 

require a ‘‘citation’’ or ‘‘identification,’’ 

a summary would be inappropriate and 

the fact sheet would need to provide the 

specific information required. It is 

EPA’s view that this would eliminate 

redundancy, reduce permit writer 

workload in fact sheet development, 

and ensure that the permitting authority 

is clearly demonstrating and making 

available all required information. The 

proposed changes to the regulations 

would address observed deficiencies 

and explicitly require fact sheets to 

include the information necessary to 

understand the rationale behind permit 

development. 

(b) Fact Sheet Requirements for 

Individual NPDES Permits 

The existing regulations at 40 CFR 

124.56 provide basic fact sheet 

requirements for NPDES permits. While 

the regulations provide the 

requirements for content of these fact 

sheets, they lack specificity, which has 

led to fact sheets with very little or 

inconsistent justification of the permit 

terms and conditions. The proposed 

regulations would provide specific 

requirements for both individual and 

general permits, to provide permit 

writers with more detail on what 

information to include in fact sheets. 

i. 40 CFR 124.56(a)(1)(i) 

The current fact sheet regulation at 40 

CFR 124.56(a) requires ‘‘a citation to the 

applicable effluent limitation guideline 

(ELG), performance standard, or 

standard for sewage sludge use or 

disposal as required by 40 CFR 122.44.’’ 

EPA proposes to redesignate this 

provision for citations from the existing 

paragraph (a) as proposed paragraph 

(a)(1)(i) to allow the inclusion of 

additional provisions in paragraph (a) in 

a logical manner. 

ii. 40 CFR 124.56(a)(1)(ii) 

40 CFR 124.56(a) currently requires 

fact sheets to include ‘‘any calculations 

or other necessary explanation of the 

derivation of specific effluent 

limitations and conditions or 

standards.’’ The current regulations do 

not provide any further clarification 

regarding what constitutes ‘‘calculations 

or other necessary explanation.’’ 

The proposed paragraphs (ii)(A) and 

(ii)(B) would require the fact sheet to 

contain the name of the receiving water 

and include explicit reference to the 

applicable state WQS. EPA intends to 

provide information to the public and 

the permittee on designated uses of the 

receiving water(s) and to provide a clear 

reference to the applicable numeric and 

narrative criteria for the specific 

receiving water segment. In order to 

write WQBELs, permit writers must 

already consider the receiving water and 

applicable state WQS, and already has 

this information available. Explicitly 

documenting this known information in 

a fact sheet would add only a minimal 


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31Office of Inspector General, ‘‘Total Maximum 

Daily Load Program Needs Better Data and 

Measures to Demonstrate Environmental Results.’’ 

September 19, 2007, available at http://

www.epa.gov/sites/production/files/2015-11/

documents/20070919–2007-p-00036.pdf. 

burden, and the permit writer would not 

have any additional burden of obtaining 

new information. 

The proposed paragraphs (ii)(C) and 

(ii)(D) would require the fact sheet to 

include information regarding the 

condition of the receiving water(s), 

including whether the water body has 

been listed as impaired or threatened for 

any uses. Where the water body is 

impaired, the fact sheet must indicate 

whether EPA has approved or 

established a TMDL for any of the 

impairing pollutants or pollutant 

parameters. This requirement is 

intended to ensure that the permitting 

authority has considered the condition 

of the receiving water as part of the 

permit development process and 

provides additional transparency 

regarding the rationale for permit 

conditions. When developing WQBELs, 

permit writers are already required to 

consider the condition of the receiving 

water(s), any impairments, and whether 

there is a TMDL for the receiving water. 

Because the permit writer already has 

this information available, it should add 

only a minimal burden to document this 

information in a permit fact sheet. 

iii. 40 CFR 124.56(a)(1)(iii) 

The proposed paragraph (iii) would 

require the fact sheet to include the 

rationale for TBELs developed pursuant 

to 40 CFR 122.44(a), and an explanation 

of any best management practices 

(BMPs) required pursuant to 40 CFR 

122.44(k). This explanation should 

include a discussion of whether any 

ELGs apply to the facility, and if so, 

which performance standard(s) (e.g., 

best practicable control technology 

currently available (BPT), best available 

technology economically achievable 

(BAT), best conventional pollutant 

control technology (BCT), or new source 

performance standard (NSPS)) apply to 

the facility’s discharge. The permit 

writer would already have all of the 

required information regarding ELGs, 

performance standards, technology, and 

BMPs that he or she used to develop 

TBELs. There would be no additional 

burden to obtain any new information, 

and only a minimal burden to document 

the analyses that the permit writer has 

already conducted. 

iv. 40 CFR 124.56(a)(1)(iv) 

The proposed paragraph (iv) would 

require documentation of the reasonable 

potential determination, and, where 

necessary, the development of WQBELs 

pursuant to 40 CFR 122.44(d). 

The proposed paragraph (iv)(A) 

would require the fact sheet to describe 

the pollutants or pollutant parameters 

analyzed in order to determine a need 

for WQBELs. EPA’s review of stateissued permits has found that even 

where fact sheets contained reasonable 

potential determinations and WQBEL 

calculations, they frequently contain 

little discussion or demonstration 

regarding how the permitting authority 

established the ‘‘pollutants of concern’’ 

list. EPA is proposing this new 

paragraph to ensure that the permitting 

authority considers and clearly 

identifies ‘‘pollutants of concern’’ for 

the purposes of water quality analyses, 

and provides a rationale for the decision 

reached. Permit writers already have the 

information that they use to identify 

pollutants of concern, complete a 

reasonable potential analysis and 

develop WQBELs, so this proposed 

revision would not impose any 

additional burden of collecting new 

information. It should be only a 

minimal additional burden for a permit 

writer to document the calculations and 

analyses that he or she has already 

conducted. 

The proposed paragraph (iv)(B) would 

require the fact sheet to provide the 

ambient (receiving water) pollutant 

concentration data, or an explanation of 

why such data is not applicable or 

available, for pollutants granted a 

dilution or mixing allowance pursuant 

to 40 CFR 122.44(d)(1)(ii). The 

‘‘background’’ concentration of a 

pollutant in the receiving water is a 

critical factor in determining the 

assimilative capacity of the receiving 

water. EPA’s review of state-issued 

permits conducted over the past ten 

years found that fact sheets contained 

little information regarding background 

pollutant data, and little explanation 

regarding how permitting authorities 

used or did not use background data in 

limit calculations. This proposed 

requirement is intended to provide 

additional transparency with respect to 

the use of ambient pollutant 

concentration data in water quality 

assessments, reasonable potential 

determinations and permit limit 

calculations. In order to write permit 

limits, the permit writer would have 

already considered background 

pollutant data, so this proposed revision 

would not impose any additional 

information collection burden, and 

would only impose a minimal burden 

for documenting analyses that the 

permit writer has already conducted. 

The proposed paragraph (iv)(C) would 

require that the fact sheet discuss any 

dilution or mixing considered in water 

quality evaluations or permit limit 

development, and where dilution or 

mixing were considered, how ambient 

(background) pollutant concentrations 

were considered in the water quality 

assessment. This requirement relates to 

the proposed requirement in paragraph 

(iv)(B) and is intended to ensure that the 

permitting authority has considered and 

justified the appropriateness of any 

dilution or mixing allowance consistent 

with provisions of state WQSs. In order 

to determine a mixing zone or dilution 

analysis, the permit writer would have 

already considered background 

pollutant data. This proposed revision 

would not impose any additional 

information collection burden, and 

would only impose a minimal burden 

for documenting analyses that the 

permit writer has already conducted. 

The proposed paragraph (iv)(D) would 

require that where an EPA-approved or 

established TMDL has assigned a WLA 

to the point source, the fact sheet must 

describe how the permit incorporates 

limits and permit conditions consistent 

with the assumptions of any WLA 

assigned to the applicant/permittee 

discharge. This requirement is based on 

findings from both EPA’s review of 

state-issued permits and a 2007 Office of 

Inspector General (OIG) report 31 that 

found limited documentation in permits 

to demonstrate the implementation of 

WLAs from approved TMDLs. In order 

to write permit limits that comply with 

40 CFR 122.44(d)(1)(vii)(B), permit 

writers should already have considered 

information from applicable TMDLs and 

the assumptions of any WLAs. This 

proposed revision would not impose 

any burden on the permit writer to 

obtain new information and may impose 

only a minimal burden for documenting 

the analysis the permit writer would 

have already conducted. 

The proposed paragraph (iv)(E) would 

require the fact sheet to provide a 

description of how the permit ensures 

compliance with applicable state 

narrative water quality criteria and 

standards, where a reasonable potential 

determination has been made for an 

excursion of narrative water quality 

criterion. The regulations at 40 CFR 

122.44(d)(1) specifically require permits 

to include limits and conditions that 

achieve WQS, including any state 

narrative criteria for water quality. 

EPA’s review of state-issued permits 

related to the surface coal mining sector 

as well as other reviews of state-issued 

permits informed EPA that fact sheets 

rarely discuss whether or how the 

permitting authority has assessed the 

need for, or developed, WQBELs or 

other permit conditions to ensure 


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compliance with narrative criteria. 

Permit administrative records are also 

unclear regarding how narrative criteria 

related to nutrients are assessed and 

implemented. EPA is proposing this 

new requirement to ensure that 

permitting authorities have considered 

narrative criteria during the permit 

development process and have 

documented how these criteria are 

implemented in the NPDES permit. In 

order to develop WQBELs, permit 

writers are already required to consider 

state narrative water quality criteria and 

standards and to conduct a reasonable 

potential analysis. This proposed 

revision would not impose any 

additional burden on the permit writer 

to obtain new information, and may 

impose only a minimal burden for 

documenting analyses that the permit 

writer has already conducted. 

v. 40 CFR 124.56(a)(1)(v) 

Fact sheets frequently do not 

adequately document the 

antidegradation analysis to ensure that 

the permitting authority is meeting 

requirements to protect existing uses 

and high quality waters (where 

applicable). In particular, fact sheets 

often omit information regarding 

whether the permitting authority 

conducted a ‘‘Tier 2’’ review consistent 

with the state’s antidegradation 

requirements in order to demonstrate 

that allowing a lowering of water quality 

was consistent with the state’s 

antidegradation requirements. 

Numerous state NPDES permit 

challenges have raised this issue. The 

proposed language would ensure that 

the permitting authority has considered 

the applicable antidegradation 

requirements and has documented that 

the state’s antidegradation requirements 

are met (e.g., by documenting a Tier 2 

review, if applicable). The proposed 

paragraph (v) would require that the fact 

sheet contain sufficient information to 

demonstrate that the proposed discharge 

is consistent with the state’s 

antidegradation requirements. In order 

to develop WQBELs, permit writers 

must already take state WQS into 

account. State antidegradation policies 

and requirements are a component of 

state WQS. This proposed revision 

would not impose any additional 

requirements on permit writers to 

collect new information or conduct new 

analyses. It may impose only a minimal 

burden for documenting analyses that 

permit writers have already conducted. 

vi. 40 CFR 124.56(a)(1)(vi) 

(c) EPA’s review of state practices and 

policy has shown that the determination 

of monitoring location(s), the frequency 

at which the permit requires the 

permittee to sample and analyze each 

regulated pollutant, the sampling 

technique (e.g., grab, composite, 

continuous), and the required analytical 

methods are all often carried forward 

from permit to permit with little or no 

explanation as to their basis or 

appropriateness. Further, the NPDES 

permitting regulations at 40 CFR 

122.44(i) were revised in 2014 and now 

require permitting authorities to 

prescribe (where necessary) an 

analytical method that is ‘‘sufficiently 

sensitive’’ to assess compliance with 

applicable effluent limitations. The 

proposed paragraph (vi) would require 

the fact sheet to discuss the proposed 

monitoring and reporting conditions of 

a draft NPDES permit that current fact 

sheet regulations do not currently 

specifically address, including 

assurance that the prescribed analytical 

methods meet the requirements of 40 

CFR 122.44(i). Permit writers already 

have the data that they use to establish 

monitoring and reporting requirements 

and ensure that they are prescribing 

sufficiently sensitive methods are 

prescribed. This proposed revision 

would not impose any additional 

burden on permit writers to collect new 

information or conduct new analyses. It 

may impose only a minimal burden for 

documenting analyses that permit 

writers have already conducted. 

(d) Fact Sheet Requirements for NPDES 

General Permits 

While current fact sheet regulations at 

40 CFR 124.8(a) require development of 

fact sheets for draft NPDES general 

permits, the regulations at 40 CFR 

124.56 do not include requirements 

specific to the contents of fact sheets for 

these permits. General permits are 

‘‘umbrella’’ permits that cover classes or 

categories of dischargers, and are 

usually used when there are multiple 

facilities that have very similar 

discharges. General permits are an 

efficient tool used by permitting 

authorities to provide permit coverage 

for many facilities under just one 

permit. Fact sheets for general permits 

are especially essential in providing the 

rationale for the development of terms 

and conditions for general permits and 

provide applicants and the public with 

background and information on how the 

limits, terms and conditions in the 

permit were developed. Because of the 

unique nature of general permits, EPA 

believes that the regulations should 

describe the specific fact sheet 

requirements that more accurately 

describe and document the 

development of the terms and 

conditions of general permits. 

EPA proposes the following new 40 

CFR 124.56(a)(2) to address the specific 

information necessary to document 

permitting decisions for NPDES general 

permits. The proposed general permit 

fact sheet requirements closely track the 

general permit structure in 40 CFR 

122.28. 

i. 40 CFR 124.56(a)(2)(i) 

Proposed paragraph (a)(2)(i) would 

require the fact sheet for a general 

permit to contain a description of how 

the issuance of the general permit meets 

the requirements of 40 CFR 122.28, 

including the geographic area of 

coverage: The types, classes or 

categories of waters to which the general 

permit authorizes discharge and the 

sources that the general permit would 

cover. This information would ensure 

that the permitting authority provides a 

transparent record of the types of 

facilities covered under the general 

permit and the criteria under which 

categories or classes of facilities were 

identified. Furthermore, the fact sheet 

would be specifically required to 

provide a record of decision for 

selecting the geographic area of 

coverage, including any areas or water 

bodies where general permit coverage is 

not available. In order to develop a 

general permit, permit writers will have 

already considered all of the relevant 

data regarding the geographic area of 

coverage and the kinds of facilities and 

discharges that the general permit 

covers. This proposed revision would 

impose no new burden on permit 

writers to obtain new information or 

conduct new analyses. It may impose 

only a minimal burden to document the 

analyses that permit writers have 

already conducted. 

ii. 40 CFR 124.56(a)(2)(ii) 

The current fact sheet regulation 

requires ‘‘a citation to the applicable 

effluent limitation guideline, 

performance standard, or standard for 

sewage sludge use or disposal as 

required by § 122.44.’’ The proposed 

paragraph moves the original language 

into paragraph 124.56(a)(2)(ii) and 

would not substantively change the 

existing requirement. 

iii. 40 CFR 124.56(a)(2)(iii) 

The proposed paragraph (iii) requires 

that the fact sheet provide the rationale 

for TBELs developed pursuant to 40 

CFR 122.44(a), and an explanation of 

any BMPs required pursuant to 40 CFR 

122.44(k). This explanation would 

include a discussion of whether any 

ELGs apply to the facility, and if so, 

which performance standard(s) (e.g., 

BPT, BAT, BCT, NSPS) apply to the 


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32 James Hanlon. ‘‘Compliance Schedules for 

Water Quality-Based Effluent Limitations in NPDES 

Permits’’ May 10, 2007, available at http://

www3.epa.gov/npdes/pubs/memo_

complianceschedules_may07.pdf. 

facility’s discharge. The permit writer 

would already have all of the required 

information regarding ELGs, 

performance standards, technology, and 

BMPs that he or she used to develop 

TBELs. There would be no additional 

burden to obtain any new information, 

and only a minimal burden to document 

the analyses that the permit writer has 

already conducted. 

iv. 40 CFR 124.56(a)(2)(iv) 

The proposed paragraph (iv) deals 

with documentation of the reasonable 

potential determination and, where 

necessary, the development of WQBELs 

or conditions. Because general permits 

cover facilities that may be widely 

dispersed across multiple water bodies 

and watersheds, the water quality 

analysis would likely differ significantly 

from the site-specific type of analysis 

performed for an individual discharger. 

Therefore, fact sheet requirements must 

account for the unique approaches taken 

in general permits to ensure compliance 

with state WQS. However, while the 

approaches and rationales may differ, 

paragraph (iv) would require that the 

fact sheet provide a rationale that 

describes how the permit will ensure 

compliance with state WQS, which 

includes consideration of applicable 

state antidegradation policies and 

applicable WLAs from EPA-approved or 

established TMDLs. In order to develop 

WQBELs for general permits that ensure 

compliance with state WQS, permit 

writers will have already considered 

relevant analytical data pertaining to 

WQS (including antidegradation 

policies and requirements) and TMDLs. 

This proposed revision would not 

impose an additional burden on permit 

writers to collect any new data or 

perform additional analyses, and may 

impose only a minimal burden for the 

permit writer to document the analyses 

he or she has already conducted. 

v. 40 CFR 124.56(a)(2)(v) 

The proposed paragraph (v) addresses 

documentation of monitoring and 

reporting provisions of a draft NPDES 

general permit that current fact sheet 

regulations do not currently specifically 

address. Based on past practices and 

state policy, determination of 

monitoring location(s), the frequency at 

which the permit requires the permittee 

to sample and analyze each regulated 

pollutant, the sampling technique (e.g., 

grab, composite, continuous) and the 

required analytical methods are all often 

carried forward from permit to permit. 

Further, the NPDES permitting 

regulations at 40 CFR 122.44(i) were 

revised in 2014 and now require 

permitting authorities to prescribe 

(where necessary) an analytical method 

that is ‘‘sufficiently sensitive’’ to assess 

compliance with applicable effluent 

limitations. The proposed paragraph (v) 

would require that the fact sheet 

provide a discussion of proposed 

monitoring and reporting conditions, 

including assurance that prescribed 

analytical methods meet the 

requirements of 40 CFR 122.44(i). 

Permit writers already have the data that 

they use to establish monitoring and 

reporting requirements and ensure that 

they are prescribing sufficiently 

sensitive methods are prescribed. This 

proposed revision would not impose 

any additional burden on permit writers 

to collect new information or conduct 

new analyses. It may impose only a 

minimal burden for documenting 

analyses that permit writers have 

already conducted. 

vi. 40 CFR 124.56(a)(2)(vi) 

The proposed paragraph (vi) would 

require that the fact sheet provide an 

explanation of the administrative 

elements of the general permit, 

including the process by which a 

facility would seek and be granted 

coverage under the general permit. 

Where the general permit does not 

require a NOI, the fact sheet must also 

provide a description of why the NOI 

process is inappropriate in accordance 

with the criteria established in 40 CFR 

122.28(b)(2)(v). Permit writers already 

include NOI provisions in general 

permits, so documenting these 

processes in fact sheets would not 

impose an additional burden on permit 

writers to develop a new process, and 

may impose only a minimal burden to 

document this process in the fact sheet. 

EPA Requests comments on the 

proposed revisions to § 124.56(a). 

(e) Other Revisions to 40 CFR 124.56 

i. 40 CFR 124.56(b)(1)(vii) 

40 CFR 124.56(b)(1) mandates an 

explanation of why a draft permit 

includes particular conditions. The 

proposed rule would include a 

requirement to provide a rationale for 

the use of compliance schedules in fact 

sheets for draft NPDES permits. In 2007, 

EPA addressed concerns over the use of 

compliance schedules in draft permits 

through a memorandum titled, 

‘‘Compliance Schedules for Water 

Quality-Based Effluent Limitations in 

NPDES Permits’’ from James A. Hanlon, 

Director of EPA’s Office of Wastewater 

Management, to Alexis Strauss, Water 

Division Director of EPA Region 9.32

The memorandum clarifies, ‘‘[w]hat 

principles are applicable to assessing 

whether a compliance schedule for 

achieving a water quality-based effluent 

limitation is consistent with the CWA 

and its implementing regulations.’’ 

Paragraph (b)(1)(vii) of the proposed 

regulatory revision requires the draft 

permit fact sheet to contain an 

explanation and justification for the use 

of a compliance schedule in any draft 

NPDES permit. The appropriateness of a 

compliance schedule is a permitspecific determination. The NPDES 

regulations at 40 CFR 122.47 contain 

requirements for compliance schedules. 

The intent of this new provision is to 

ensure that the permitting authority has 

considered the appropriateness of the 

compliance schedule in light of the 

criteria established in the regulations at 

40 CFR 122.47 and described in the 

2007 EPA memorandum, and has 

documented these decisions in the fact 

sheet. If a permit contains a compliance 

schedule, permit writers should have 

already considered whether the 

compliance schedule meets the 

requirements of 40 CFR 122.47. This 

proposed revision would not impose a 

new burden on permit writers to collect 

new data or perform new analyses, and 

may impose only minimal burden on 

permit writers to document analyses 

that they have already conducted. 

ii. 40 CFR 124.56(c) 

The current provisions of paragraph 

(c) require, when appropriate, a sketch 

or detailed description of the location of 

the discharge or regulated activity. The 

proposed rule would add to this 

paragraph a requirement that the fact 

sheet provide geographic coordinates 

(e.g., latitude and longitude) for each 

discharge or regulated activity. This 

locational information is already 

required to be provided by the applicant 

for an NPDES permit through its 

individual permit application. 40 CFR 

122.21. Including this information as 

part of the fact sheet would provide the 

public with better information regarding 

the precise location of the regulated 

activity and would facilitate the use of 

internet-based geo-locational tools. 

With respect to NPDES general 

permits, locational information is 

generally provided through the Notice 

of Intent (NOI) submitted by a facility 

after issuance of the general permit. The 

fact sheet for the general permit would 

include a description of the geographic 

area within which facilities may seek 

coverage under the general permit. This 

is consistent with the existing 


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31364 Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Proposed Rules 

requirement in 40 CFR 122.28(a)(1) 

which requires the general permit to 

establish the geographical ‘‘area’’ within 

which coverage under the general 

permit may be sought. 

This revision would not increase the 

level of effort for permittees and would 

not alter the requirements for data 

submission as part of the permit 

application process. The changes also 

would not alter the current substantive 

requirements for developing NPDES 

permits, but rather would more clearly 

specify the information required for the 

documentation of how those 

requirements were developed. 

EPA seeks comments on the proposed 

revisions to 40 CFR 124.56(b) and (c). 

D. Proposed Revision to 40 CFR Part 125 

1. Deletion of 40 CFR 125.3(a)(1)(ii) 

EPA proposes to delete 40 CFR 

125.3(a)(1)(ii) from the NPDES 

regulations. The statutory authority 

supporting this provision was repealed 

in 1981 making this requirement no 

longer applicable to POTWs covered 

under NPDES permits. Public Law 97– 

117. Therefore, EPA proposes to remove 

this provision from the regulations in 

order to avoid confusion regarding its 

applicability. 

Since EPA is removing language to be 

consistent with repealed statutory 

language, EPA is not seeking comments 

on the proposed removal or on the 

existing regulation. 

IV. Impacts 

This proposal involves numerous 

revisions to the NPDES regulations. It is 

EPA’s view that these revisions would 

generally not result in a new or 

increased impacts or information 

collection by authorized states or the 

regulated community. EPA expects that 

any additional effort for documenting 

existing analyses and calculations 

would be minimal. It is also EPA’s view 

that in some cases, these proposed 

revisions could reduce burden: Deleting 

outdated information and requirements 

could make it easier for the public to 

understand which NPDES regulations 

apply. The impacts assessment is 

provided for each topic. EPA 

specifically requests comments on the 

impacts and estimated level of effort 

resulting from the totality of this 

proposal as well as the individual 

requirements of the proposal. 

In general, revisions may result in a 

state having to make statutory or 

regulatory revisions in order to maintain 

a program that is at least as stringent as 

the federal program. Existing 

Information Collection Requests (ICRs) 

related to the NPDES regulations 

account for program revisions where 

they are necessary because the 

controlling federal statutes or 

regulations were modified. This 

proposal does not impose any changes 

to the procedures for revising state 

programs at 40 CFR 123.62 and it would 

not result in a new or increased effort 

beyond what has already been 

accounted for in the existing ICRs. 

Purpose and Scope of the NPDES 

Program (40 CFR 122.1) 

The revision to this note is being 

made to inform the public of ways to 

contact the NPDES program and would 

not result in changes to the existing 

program or program requirements. The 

note in the existing regulation contains 

an outdated address and telephone 

number for the Office of Water. 

Providing updated information will save 

the permitting authorities and the 

public time when they seek to contact 

EPA about these regulations. 

NPDES Program Definitions: Pesticide 

Applications to Waters of the United 

States, New Discharger, Proposed 

Permit, and Whole Effluent Toxicity 

Definition (40 CFR 122.2) 

The proposed revisions to the NPDES 

program definitions at 40 CFR 122.2 for 

‘‘pesticide applications to waters of the 

United States,’’ ‘‘new discharger,’’ 

‘‘proposed permit’’ and ‘‘whole effluent 

toxicity’’ would not result in an increase 

in effort or information collection. 

These revisions are being made to 

improve programmatic clarity and 

would not result in substantive changes 

to the existing program or program 

requirements. 

Adding a definition of ‘‘pesticide 

applications to waters of the United 

States’’ brings the NPDES definitions 

into concert with the way the PGP has 

been interpreting and regulating such 

applications since 2011. This definition 

would not increase burden and would 

not expand the universe of permittees 

and activities that the PGP covers. 

EPA proposes correcting a 

typographical error in subsection (d) of 

this definition by changing ‘‘NDPES’’ to 

‘‘NPDES.’’ This will not increase burden 

and will enable the public to clearly 

understand EPA’s regulations. 

It is EPA’s view that the revised 

definition of ‘‘proposed permit’’ also 

would not add any burden. This 

definition would correlate with the 

changes EPA proposes regarding 

objection to administratively continued 

permits. EPA proposes that an 

administratively continued permit 

could be designated as ‘‘proposed’’ after 

either a two-year or five-year period 

following the initial five-year permit 

term. Under the proposed revisions, 

EPA could then object to these proposed 

permits according to the existing permit 

objection regulations at 40 CFR 123.44. 

Although this revised definition could 

increase the number of permits to which 

EPA could object, EPA does not 

anticipate that this revised definition 

would increase burden for states, 

permittees, or any other stakeholders. 

Permittees will have already submitted 

the required permit renewal 

applications in a timely manner. After 

EPA designates an expired, 

administratively continued permit as a 

‘‘proposed permit,’’ the state NPDES 

permitting authority can choose to issue 

its own new draft permit based on the 

permittee’s timely application, and the 

state permitting process would proceed 

as usual. If the state permitting authority 

were to choose not to issue its own new 

draft permit, EPA could issue the permit 

and would assume any additional 

workload. 

The revised definition of WET would 

reflect current implementation practice 

and would impose no additional 

burden. The revised definition would 

clarify that WET includes both acute 

(lethal) and chronic (lethal and 

sublethal) WET test endpoints. As 

discussed in section III of this preamble, 

this clarification would be consistent 

with EPA’s existing WET interpretation 

and implementation. Clarifying this 

definition would not change the existing 

requirement that NPDES permits 

include WET limits where necessary to 

meet state numeric and narrative water 

quality aquatic life protection criteria. 

40 CFR 122.44(d)(1)(iv) and (v). 

Vessels Exclusion (40 CFR 122.3(a)) 

The proposed revision to 40 CFR 

122.3(a) to remove an outdated 

provision related to vessel discharges 

would not result in an increase in effort 

or information collection. This proposed 

revision would incorporate or otherwise 

address CWA provisions that were 

enacted after the current regulations 

were promulgated as well as a judicial 

decision vacating the 40 CFR 122.3(a) 

exclusion for discharges incidental to 

the normal operation of a vessel from 

NPDES permitting. As a result, this 

proposed revision would not result in a 

new or increased effort and would not 

change the universe of permittees 

covered by the existing VGP. 

Application Requirements (40 CFR 

122.21) 

The proposed revision to 40 CFR 

122.21 related to updates and 

clarifications to the existing application 

requirements and corresponding forms 

would not result in an increase in effort 


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Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Proposed Rules 31365 

33USEPA. ‘‘Information Collection Request (ICR) 

for National Pollutant Discharge Elimination 

System (NPDES) Program (Renewal),’’ OMB Control 

No. 2040–0004, EPA ICR No. 0229.19, December 

2008. 

34USEPA. ‘‘Supporting Statement for the 

Information Collection Request for the NPDES 

Regulation and Effluent Limitation Guidelines and 

Standards for Concentrated Animal Feeding 

Operations,’’ OMB Control No. 2040–0250, EPA ICR 

No. 1989.04, June 2006. 

USEPA, ‘‘Information Collection Request (ICR) for 

Cooling Water Intake Structures at Phase III 

Facilities (Final Rule),’’ OMB Control No. 2040– 

0268, EPA ICR No. 2169.02, February 2009. 

USEPA, ‘‘Information Collection Request (ICR) for 

Cooling Water Intake Structures Phase II Existing 

Facilities (Renewal),’’ OMB Control No. 2040–0257, 

EPA ICR No. 2060.03, May 2007. 

USEPA, ‘‘Information Collection Request (ICR) for 

Cooling Water Intake Structures New Facility Rule 

(Renewal),’’ OMB Control No. 2040–0241, EPA ICR 

No. 1973.04, June 2008. 

or information collection. EPA is 

revising several data fields to refine the 

content and improve the consistency 

among the forms, to improve the 

consistency with EPA’s current data 

standards, and improve the clarity and 

usability of the forms. It is EPA’s view 

that the new application forms would be 

easier to use and understand, and may 

result in a decrease in effort for 

permittees applying for coverage. EPA 

also expects that the revisions would 

improve the quality of information 

being collected, which may reduce the 

need for follow-up questions and data 

requests, and the time necessary for the 

state to develop a permit. 

In 2008, EPA submitted an ICR to the 

Office of Management and Budget 

(OMB) that, in part, updated EPA’s 

estimates for applicants to complete 

Forms 1, 2A, 2C–2F, and 2S and for 

permitting authorities to review 

applications for point source and 

sewage sludge management permits.33

The renewal ICR did not include 

updated estimates for Form 2B or for 

forms associated with cooling water 

intake structures (item 8 in table IV–1). 

Updated estimates to complete those 

forms were contained in separate 

ICRs.34 The existing ICRs include 

annual estimates for completing NPDES 

permit applications and for conducting 

ongoing compliance monitoring for both 

new and existing NPDES permittees. 

In the final rule, EPA will submit to 

OMB an updated ICR that describes the 

estimated effort associated with the 

proposed revisions made to the 

application regulations and forms. The 

changes proposed in this rule are minor, 

and do not change the estimated burden 

for completing the forms established in 

the existing ICRs. 

Antidegradation Reference (40 CFR 

122.44(d)) 

The proposed revision to 40 CFR 

122.44(d) would include a reference to 

40 CFR 131.12 in order to ensure 

consistency with the state 

antidegradation requirements 

established under that section and 

would not result in an increase in level 

of effort or information collection. This 

addition clarifies that permitting 

authorities should use applicable 

antidegradation requirements when 

deriving WQBELs. All state water 

quality standards include 

antidegradation policies. EPA’s 

longstanding policy has been that 

permitting authorities should develop 

NPDES permit terms and conditions 

consistent with, and in consideration of 

applicable state antidegradation 

requirements. NPDES permit writers are 

already required to consider how the 

final WQBELs established in the permit 

not only derive from the numeric and 

narrative water quality criteria, but also 

how they satisfy the antidegradation 

elements of state WQS. This would 

remain the case regardless of whether 

EPA includes this provision as a 

reminder. Because the NPDES 

regulations do not presently explicitly 

include this requirement, this proposal 

would revise the regulations at 40 CFR 

122.44(d)(1) to explicitly clarify this 

existing assumption. This proposed 

revision would not result in a new or 

increased effort. 

Dilution Allowances (40 CFR 122.44(d)) 

The proposed revisions to 40 CFR 

122.44(d) specify that a dilution 

allowance under this paragraph must 

comply with applicable dilution and 

mixing zone requirements and low 

flows established in state WQS and be 

supported by data or analyses 

quantifying or accounting for the 

presence of each assessed pollutant or 

pollutant parameter in the receiving 

water. This proposal would not require 

collecting new information or 

conducting any new calculations, but 

rather is intended to ensure 

transparency in the permitting 

authority’s decision to grant a dilution 

allowance. The information necessary to 

support a dilution allowance may be 

based on existing information, or the 

permitting authority may choose to ask 

the applicant seeking coverage for more 

information. This proposed revision 

would not require new or increased 

effort or costs. 

Reasonable Potential Determinations for 

New Discharges (40 CFR 122.44(d)) 

The proposed revision to 40 CFR 

122.44(d) specifies that a reasonable 

potential determination must consider 

applicable qualitative or quantitative 

data, analyses or other valid and 

representative information for 

pollutants or pollutant parameters to 

support the need for effluent 

limitations, conditions or standards. 

This proposal does not require 

collecting new information, but rather is 

intended to ensure that the permitting 

authority uses all available information 

when determining the need for an 

effluent limitation for a new discharge. 

In addition, the revision ensures that the 

permitting authority is transparent 

regarding the process used to make the 

determination by including 

documentation in the permit fact sheet. 

This proposed revision would not result 

in a new or increased effort. 

Anti-Backsliding (40 CFR 122.44(l)) 

The proposed revision to 40 CFR 

122.44(l) to be consistent with CWA 

section 402(o) provisions regarding 

‘‘anti-backsliding’’ from permit 

limitations would not result in an 

increase in effort or information 

collection. This revision would 

incorporate the existing statutory 

requirement into the regulations 

verbatim and would not create any new 

requirements or information collection 

burdens. 

Design Flow for POTWs (40 CFR 

122.45(b)) 

The proposed revision to 40 CFR 

122.45(b) would clarify that permit 

effluent limitations based on technology 

standards for POTWs must be calculated 

using design flow. This revision also 

clarifies that the permitting authority 

has the flexibility to use other 

appropriate measures of a representative 

critical condition when developing 

effluent limitations based on WQS for a 

POTW. A WQBEL for a POTW could 

instead be based on effluent flows other 

than design flow (e.g., actual flow, 

estimated flow). EPA proposes to clarify 

that permitting authorities developing 

WQBELs for POTWs have the same 

flexibility to base calculations on 

effluent flows as they do for the 

development of WQBELs for all other 

dischargers. This proposal would not 

impose any additional burden or require 

any additional calculations. 

Objection to Administratively 

Continued Permits (40 CFR 123.44) 

The proposed revision to 40 CFR 

123.44 to allow EPA to review an 

administratively continued permit as a 


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35EPA used $1,000 (in 2010$) as the publication 

cost for a public notice in a newspaper and 

assumed that there are 1,600 NPDES permit actions 

that require public notice via newspaper 

publication each year; thus, we arrive at the $1.6 

million per year estimate. 

proposed permit for the purposes of 

making an objection determination 

would not result in an increase in effort 

or information collection. The proposal 

would not change the existing 

timeframes established in the permit 

objection regulations and would not 

require any new information to be 

submitted to EPA as a part of the 

process. It also would not impose 

additional burdens on authorized state 

NPDES programs, who have the 

responsibility to timely issue NPDES 

permits. If EPA were to invoke the 

authority in this proposed provision, the 

responsibility to issue the permit could 

potentially shift to EPA. This proposed 

revision would not result in a new or 

increased effort for states. See impacts 

explanation for ‘‘proposed permit’’ in 

‘‘Definitions (40 CFR 122.2)’’ above. 

Public Notice Requirements (40 CFR 

124.10(c)) 

The proposal to revise 40 CFR 

124.10(c) to allow permitting authorities 

to provide public notice of NPDES 

major individual and general permits on 

the permitting authority’s publicly 

available Web site in lieu of the 

newspaper publication requirement 

would not result in an increase in effort 

or information collection. EPA is not 

proposing to alter the existing 

requirement related to newspaper 

publication, but is providing an optional 

provision that the permitting authority 

may choose at its discretion. However, 

to qualify for this provision, the 

permitting authority would be required 

to post the draft permit and fact sheet 

on the Web site during the public 

comment period and post the final 

permit and fact sheet for the entire term 

of the permit. The purpose of this 

proposed revision is to provide the 

permitting authority with an alternative 

method of providing notice of permit 

applications and hearings and provide 

flexibility to reach communities in a 

variety of methods. It is EPA’s 

understanding that the traditional 

approach to newspaper publication has 

become costly for permitting authorities 

to implement. EPA’s proposal intends to 

alleviate those costs by allowing the 

permitting authority to use its publicly 

available Web site in lieu of the 

traditional publication. 

EPA estimates that public notice of 

draft permits in newspapers for NPDES 

major facilities, sewage sludge facilities 

and general permits currently costs 

approximately $1.6 million per year, 

nationally.35 This estimate excludes the 

costs of preparing the content of the 

NPDES public notice, and the costs of 

the other methods to provide notice 

besides newspaper publication, such as 

direct mailing. Any costs from EPA’s 

proposed rule, however, are likely to be 

less than this amount. For example, EPA 

expects that the cost of posting a PDF 

copy of a public notice on a state’s preexisting NPDES Web site could be less 

than the cost of publishing such notices 

in a newspaper. Although EPA does not 

currently have estimates of those costs, 

this revision would be a significant 

decrease in burden for public notice 

requirements for permitting authorities. 

The rule would allow but not require 

state and federal permitting authorities 

to use electronic public notice instead of 

newspaper publication. Some states 

would continue to publish at least some 

notifications in newspapers. 

This proposed revision would not 

result in an increase in effort or 

information collection. EPA specifically 

seeks comments on the potential cost 

savings for the public notice of NPDES 

major individual and general permits on 

a publicly available Web site in lieu of 

the newspaper publication requirement. 

CWA Section 401 Certification Process 

(40 CFR 124.55(a)(2)) 

The proposal to revise 40 CFR 

124.55(a)(2) would broaden the 

circumstances under which federal 

NPDES permits could be modified after 

issuance to include conditions 

necessary to reflect more stringent 

section 401 certification provisions that 

result from state administrative or 

judicial decisions. EPA cannot predict 

how often this proposed provision 

would cause a permit to be modified. 

Any modifications resulting from 

requirements in state administrative or 

judicial decisions would follow EPA’s 

existing permit modification regulations 

at 40 CFR 122.62. Any new permit 

requirements would be the result of an 

administrative or judicial decision and 

would not result directly from this 

proposed revision. Therefore, this 

proposed revision would not result in 

an increase in effort or information 

collection. 

Fact Sheet Requirements (40 CFR 

124.56) 

The proposal to revise 40 CFR 124.56 

to require specific documentation 

within the fact sheet content of the 

individual and general permit 

development would not result in an 

increase in effort or information 

collection. The proposed changes to the 

fact sheet content requirements do not 

establish any permit conditions or 

technical or administrative analyses that 

are not already required by the existing 

regulations. The revised regulations 

would require the permitting authority 

to document NPDES permit 

development work that the existing 

regulations already require. These 

proposed revisions would not impose 

any additional burdens for collecting 

new data or conducting new analyses, 

and may impose only a minimal burden 

for permit writers to document analyses 

that have already been conducted. 

Deletion of 40 CFR 125.3(a)(1)(ii) 

The proposed deletion of 40 CFR 

125.3(a)(1)(ii) from the NPDES 

regulations would not result in an 

increase in effort or information 

collection. By deleting this outdated 

provision, EPA would clarify that this 

provision no longer applies to regulated 

entities. 

V. Compliance Dates 

Following issuance of this rule, 

authorized states have up to one year to 

revise, as necessary, their NPDES 

regulations to adopt the requirements of 

this rule, or two years if statutory 

changes are needed, as provided at 40 

CFR 123.62. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal and policy issues. 

Accordingly, EPA submitted this action 

to the OMB for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. Information regarding all 

statutes and executive orders discussed 

in this document can be found at http:// 

www.epa.gov/laws-regulations/lawsand-executive-orders. 

B. Paperwork Reduction Act (PRA) 

The changes being proposed to the 

applications and forms as well as all 

other information collection activities in 

this proposed rule will be submitted for 

approval to the Office of Management 

and Budget (OMB) under the PRA. The 

Information Collection Request (ICR) 

document that the EPA prepared has 

been assigned EPA ICR number 2529.01. 

You can find a copy of the ICR in the 


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docket for this rule, and it is briefly 

summarized here. 

The ICR will describe the burden and 

costs associated with revisions made to 

regulations and forms related to 

preparing and reviewing applications 

for individual NPDES permits for point 

source and sewage sludge management 

permits. These revisions were necessary 

to clarify NPDES definitions and 

application requirements, increase fact 

sheet and permit transparency, 

timeliness and environmental 

effectiveness, and modernize public 

notice methods. 

The proposed revisions to 40 CFR 

122.21 related to clarifications of 

NPDES definitions and application 

requirements would not result in an 

increase in level of effort or information 

collection. EPA is making revisions to 

several data fields on the forms to refine 

the content and to improve consistency 

with EPA’s current data standards. The 

application forms is available in the 

docket for this rule. EPA estimates that 

the burden associated with these 

proposed changes would not change 

from the burden estimates contained in 

existing ICRs. This action does not 

impose any new information collection 

burden under the PRA. OMB has 

previously approved the information 

collection activities contained in the 

existing regulations and has assigned 

OMB OMB Control No. 2040–0004, EPA 

ICR No. 0229.21. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

EPA requests comment on the impact 

of the specific changes set out in this 

proposal on NPDES application 

requirements, forms and other 

information collections. EPA also 

requests comment on whether and how 

a separate future action should address 

the utility and clarity of the information 

requests and on how to minimize the 

information collection burden on 

respondents, including the use of 

appropriate automated, electronic, 

mechanical, or other forms of 

information technology. Comments 

relating to this separate future action 

should be submitted to Docket ID No. 

EPA–HQ–OW–2016–0146 at http://

www.regulations.gov. 

C. Regulatory Flexibility Act 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(RFA). In making this determination, the 

impact of concern is any significant 

adverse economic impact on small 

entities. An agency may certify that a 

rule will not have a significant 

economic impact on a substantial 

number of small entities if the rule 

relieves regulatory burden, has no net 

burden or otherwise has a positive 

economic effect on the small entities 

subject to the rule. This proposal would 

eliminate inconsistencies between 

regulations and application forms, 

improve permit documentation, 

transparency and oversight, provide 

clarifications to existing regulations and 

delete outdated provisions. We have 

therefore concluded that this action 

would have no net regulatory burden for 

directly regulated small entities. 

EPA continues to be interested in the 

potential impacts of the proposed rule 

on small entities and welcomes 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. This 

proposal would eliminate 

inconsistencies between regulations and 

application forms, improve permit 

documentation, transparency and 

oversight, provide clarifications to 

existing regulations and delete outdated 

provisions. This proposed action will 

not impose significant burden on EPA, 

states or the regulated community, or 

specifically, any significant burden on 

any small entity. With respect to any 

impacts on authorized state programs, 

the costs involved in this action are 

imposed only by participation in a 

voluntary federal program. UMRA 

generally excludes from the definition 

of ‘‘federal intergovernmental mandate’’ 

duties that arise from participation in a 

voluntary federal program. Thus, this 

proposed rule is not subject to the 

requirements of section 202 and 205 of 

the UMRA. For the same reason, EPA 

has determined that this rule contains 

no regulatory requirements that might 

significantly or uniquely affect small 

governments. Thus, this proposed rule 

is not subject to the requirements of 

section 203 of UMRA. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed rule does not have 

tribal implications, as specified in 

Executive Order 13175. EPA considered 

the potential impacts on tribes, and 

concluded that there would be no 

substantial direct compliance costs or 

impact on tribes. Because the purpose of 

the proposed rule is to eliminate 

inconsistencies between regulations and 

application forms, improve permit 

documentation, transparency and 

oversight, provide clarifications to 

existing regulations, and delete outdated 

provisions, it is not expected to have 

substantial direct effects on tribal 

governments, on the relationship 

between the federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

federal government and Indian tribes, as 

specified in Executive Order 13175. 

Executive Order 13175 does not apply 

to this action and EPA determined that 

tribal consultation is not necessary for 

this action. 

EPA specifically solicits input on this 

proposed action from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The proposed rule is not subject to 

Executive Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866 and because EPA 

does not believe that the environmental 

health and safety risks addressed by this 

action present a disproportionate risk to 

children. This proposed rule would 

eliminate inconsistencies between 

regulations and application forms, 

improve permit documentation, 

transparency and oversight, provide 

clarifications to existing regulations, 

and delete outdated provisions. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rulemaking is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This proposed rule would eliminate 

inconsistencies between regulations and 

application forms, improve permit 

documentation, transparency and 

oversight, provide clarifications to 

existing regulations, and delete outdated 

provisions. 


sradovich on DSK3TPTVN1PROD with PROPOSALS3
31368 Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Proposed Rules 

I. National Technology Transfer and 

Advancement Act 

This proposed rulemaking does not 

involve technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and Low 

Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. This proposed rule would 

eliminate inconsistencies between 

regulations and application forms, 

improve permit documentation, 

transparency and oversight, provide 

clarifications to existing regulations and 

delete outdated provisions. 

List of Subjects 

40 CFR Part 122 

Administrative practice and 

procedure, Confidential business 

information, Environmental protection, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 123 

Administrative practice and 

procedure, Confidential business 

information, Hazardous substances, 

Indians—lands, Intergovernmental 

relations, Penalties, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 124 

Administrative practice and 

procedure, Air pollution control, 

Hazardous waste, Indians—lands, 

Reporting and recordkeeping 

requirements, Water pollution control, 

Water supply. 

40 CFR Part 125 

Reporting and recordkeeping 

requirements, Waste treatment and 

disposal, Water pollution control. 

Dated: May 5, 2016. 

Gina McCarthy, 

Administrator. 

For the reasons set out in the 

preamble, the EPA proposes to amend 

Chapter I of Title 40 of the Code of 

Federal Regulations as follows: 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 1. The authority citation for part 122 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq. 

Subpart A—Definitions and General 

Program Requirements 

■ 2. Section 122.1 is amended by 

revising the note to § 122.1 to read as 

follows: 

§ 122.1 Purpose and scope. 

* * * * * 

[Note to § 122.1: Information concerning 

the NPDES program and its regulations can 

be obtained by contacting the Water Permits 

Division (4203), Office of Wastewater 

Management, U.S. EPA, 1200 Pennsylvania 

Avenue NW., Washington, DC 20460 and by 

visiting the homepage at http://www.epa.gov/ 

npdes/.] 

■ 3. Section 122.2 is amended by: 

■ a. Revising the definitions for ‘‘new 

discharger,’’ ‘‘proposed permit,’’ and 

‘‘whole effluent toxicity’’ in paragraph 

(d); and 

■ b. Adding the definition, in 

alphabetical order, ‘‘pesticide 

applications to waters of the United 

States.’’ 

The revisions and additions read as 

follows: 

§ 122.2 Definitions. 

New discharger means any building, 

structure, facility, or installation: 

* * * * * 

(d) Which has never received a finally 

effective NPDES permit for discharges at 

that ‘‘site.’’ 

* * * * * 

Pesticide applications to waters of the 

United States means the application of 

biological pesticides, and the 

application of chemical pesticides that 

leave a residue, from point sources to 

waters of the United States. In the 

context of this definition of pesticide 

applications to waters of the U.S., this 

does not include agricultural 

stormwater discharges and return flows 

from irrigated agriculture, which are 

excluded by law (33 U.S.C. 1342(l)). 

* * * * * 

Proposed permit means a State 

NPDES ‘‘permit’’ prepared after the 

close of the public comment period 

(and, when applicable, any public 

hearing and administrative appeals) 

which is sent to EPA for review before 

final issuance by the State, or a State 

NPDES permit designated as a proposed 

permit under § 123.44(k). A ‘‘proposed 

permit’’ is not a ‘‘draft permit.’’ 

* * * * * 

Whole effluent toxicity (WET) means 

the aggregate toxic effect of an effluent 

measured directly by a toxicity test 

where the test results are based on acute 

(lethal) and/or chronic (lethal and 

sublethal) endpoints. 

■ 3. Section 122.3 is amended by 

revising paragraph (a) to read as follows: 

§ 122.3 Exclusions. 

* * * * * 

(a) Any discharge of sewage from 

vessels and any effluent from properly 

functioning marine engines, laundry, 

shower, and galley sink wastes, or any 

other discharge incidental to the normal 

operation of: 

(1) A vessel of the Armed Forces 

within the meaning of section 312 of the 

CWA; and 

(2) A recreational vessel within the 

meaning of section 502(25) of the CWA. 

Until December 18, 2017, an NPDES 

permit is not required for a vessel that 

is less than 79 feet in length or a fishing 

vessel as defined in 46 U.S.C. 2101 

except for any discharge of ballast water 

or any discharge in a case in which the 

Administrator or State, as appropriate, 

determines that the discharge either 

contributes to a violation of a water 

quality standard or poses an 

unacceptable risk to human health or 

the environment. None of these 

exclusions apply 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 when secured to a storage facility or 

a seafood processing facility, or when 

secured to the bed of the ocean, 

contiguous zone or waters of the United 

States for the purpose of mineral or oil 

exploration or development. 

* * * * * 

Subpart B—Permit Application and 

Special NPDES Program Requirements 

■ 4. Section 122.21 is amended by: 

■ a. Revising paragraph (a)(2)(i) 

introductory text; 

■ b. Revising paragraph (a)(2)(i)(A); 

■ c. Revising paragraph (c)(2)(ii)(B); 

■ d. Revising paragraphs (f) 

introductory text and (f)(2) through (4); 

■ e. Adding paragraphs (f)(9) and (10); 

■ f. Revising paragraphs (g) introductory 

text and (g)(1); 

■ g. Adding paragraph (g)(7)(ix); 

■ h. Revising paragraph (h)(1); 

■ i. Revising paragraph (i)(1)(iii); 

■ j. Revising paragraphs (j)(1)(i), 

(j)(1)(ii), and (j)(1)(viii)(D)(2) and (3); 

■ k. Adding paragraph (j)(1)(ix); 

■ l. Revising paragraphs (j)(3)(i)(C), 

(j)(4)(i), (j)(5)(i), (j)(6)(i), (j)(6)(ii) 

introductory text, (j)(6)(ii)(B), (C), (E) 

and (G), (j)(8)(ii)(A)(3) and (j)(9); 

■ m. Revising paragraphs (k) 

introductory text, (k)(1), and (k)(5)(vi); 


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■ n. Revising paragraphs (q)(1)(i), 

(q)(2)(i), (q)(8)(ii)(A), (q)(8)(vi) 

introductory text and (q)(8)(vi)(A), 

(q)(9)(iii)(B), (D), and (E), (q)(9)(iv)(A), 

(q)(10)(ii)(A), (q)(10)(iii)(B) and 

(q)(10)(iii)(K)(1), (q)(11)(ii)(A) and 

(q)(11)(iii)(B), (q)(12)(i), and (q)(13); and, 

■ o. Revising paragraph (r)(3)(ii). 

The additions and revisions read as 

follows: 

§ 122.21 Application for a permit 

(applicable to State programs, see § 123.25). 

(a) * * * 

(2) * * * 

(i) All applicants for EPA-issued 

permits must submit applications on 

EPA permit application forms. More 

than one application form may be 

required from a facility depending on 

the number and types of discharges or 

outfalls found there. Application forms 

may be obtained by contacting: U.S. 

EPA, Mail Code 4203M, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460 or by visiting http://

www.epa.gov/npdes. Applications for 

EPA-issued permits must be submitted 

as follows: 

(A) All applicants, other than POTWs, 

TWTDS, vessels, and pesticide 

applicators must submit Form 1. 

* * * * * 

(c) * * * 

(2) * * * 

(ii) * * * 

(B) The applicant’s name, address, 

telephone number, electronic mail 

address and ownership status; 

* * * * * 

(f) Information requirements. All 

applicants for NPDES permits, other 

than POTWs, other TWTDS, vessels, 

and pesticide applicators, must provide 

the information in paragraphs (f)(1) 

through (10) of this section to the 

Director, using the application form 

provided by the Director. Additional 

information required of applicants is set 

forth in paragraphs (g) through (k) and 

(q) through (r) of this section. 

* * * * * 

(2) Name, mailing address, and 

location, including latitude and 

longitude to the nearest second and 

method of collection, of the facility for 

which the application is submitted. 

(3) Up to four SIC and NAICS codes 

that best reflect the principal products 

or services provided by the facility. 

(4) The operator’s name, address, 

telephone number, electronic mail 

address, ownership status, and status as 

Federal, State, private, public, or other 

entity. 

* * * * * 

(9) An indication of whether the 

facility uses cooling water and the 

source of the cooling water. (Facilities 

that use a cooling water intake structure 

as described at 40 CFR 125.91 must 

comply with requirements at 40 CFR 

122.21(r)). 

(10) An indication of whether the 

facility is requesting any of the 

variances at 40 CFR 122.21(m). 

(g) Application requirements for 

existing manufacturing, commercial, 

mining, and silvicultural dischargers. 

Existing manufacturing, commercial, 

mining, and silvicultural dischargers 

applying for NPDES permits, except for 

those facilities subject to the 

requirements of § 122.21(h), 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 second, 

including method of collection, and the 

name of the receiving water. 

* * * * * 

(7) * * * 

(ix) Existing data may be used, if 

available, in lieu of sampling done 

solely for the purpose of this 

application. All existing data for 

pollutants specified in paragraphs 

(g)(7)(i) through (viii) of this section that 

is collected within four and one-half 

years of the application must be 

included in the pollutant data summary 

submitted by the applicant. If, however, 

the applicant samples for a specific 

pollutant on a monthly or more frequent 

basis, it is only necessary, for such 

pollutant, to summarize all data 

collected within one year of the 

application. 

* * * * * 

(h) * * * 

(1) Outfall location. Outfall number, 

latitude and longitude to the nearest 

second, including the method of 

collection, and the name of the 

receiving water. 

* * * * * 

(i) * * * 

(1) * * * 

(iii) Latitude and longitude of the 

production area (entrance to production 

area) to the nearest second, including 

method of collection; 

* * * * * 

(j) * * * 

(1) * * * 

(i) Facility information. Name, 

mailing address, and location of the 

facility, including the latitude and 

longitude to the nearest second and 

method of collection, for which the 

application is submitted; 

(ii) Applicant information. Name, 

mailing address, telephone number, and 

electronic mail address of the applicant, 

and indication as to whether the 

applicant is the facility’s owner, 

operator, or both; 

* * * * * 

(viii) * * * 

(D) * * * 

(2) The name, mailing address, 

contact person, phone number, and 

electronic mail address of the 

organization transporting the discharge, 

if the transport is provided by a party 

other than the applicant; 

(3) The name, mailing address, 

contact person, phone number, 

electronic mail address and NPDES 

permit number (if any) of the receiving 

facility; and 

* * * * * 

(ix) An indication of whether 

applicant is operating under or 

requesting to operate under a variance 

as specified at 40 CFR 122.21(n). 

* * * * * 

(3) * * * 

(i) * * * 

(C) Latitude and longitude, to the 

nearest second, including the method of 

collection; 

(4) * * *. (i) As provided in 

paragraphs (j)(4)(ii) through (x) of this 

section, all applicants must submit to 

the Director effluent monitoring 

information for samples taken from each 

outfall through which effluent is 

discharged to waters of the United 

States, except for CSOs. The Director 

may allow applicants to submit 

sampling data for only one outfall on a 

case-by-case basis, where the applicant 

has two or more outfalls with 

substantially identical effluent. The 

Director may also allow applicants to 

composite samples from one or more 

outfalls that discharge into the same 

mixing zone. For POTWs applying prior 

to commencement of discharge, data 

shall be submitted no later than 18 

months after the commencement of 

discharge; 

* * * * * 

(5) * * *. (i) All applicants must 

provide an identification of any whole 

effluent toxicity tests conducted during 

the four and one-half years prior to the 

date of the application on any of the 

applicant’s discharges or on any 

receiving water near the discharge. For 

POTWs applying prior to 

commencement of discharge, data shall 

be submitted no later than 18 months 

after the commencement of discharge. 

* * * * * 

(6) * * * 

(i) Number of significant industrial 

users (SIUs) and non-significant 

categorical industrial users (NSCIUs), as 

defined at 40 CFR 403.3(v), including 

trucked or hauled waste, discharging to 

the POTW; and 


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(ii) POTWs with one or more SIUs or 

NSCIUs shall provide the following 

information for each SIU and NSCIU 

that discharges to the POTW: 

* * * * * 

(B) Description of all industrial 

processes that affect or contribute to the 

SIU’s or NSCIU’s discharge; 

(C) Principal products and raw 

materials of the SIU that affect or 

contribute to the SIU’s or NSCIU’s 

discharge; 

* * * * * 

(E) Whether the SIU or NSCIU is 

subject to local limits; 

* * * * * 

(G) Whether any problems at the 

POTW (e.g., upsets, pass through, 

interference) have been attributed to the 

SIU or NSCIU in the past four and onehalf years. 

* * * * * 

(8) * * * 

(ii) * * * 

(A) * * * 

(3) Latitude and longitude, to the 

nearest second, including the method of 

collection; and 

* * * * * 

(9) Contractors. All applicants must 

provide the name, mailing address, 

telephone number, electronic mail 

address and responsibilities of all 

contractors responsible for any 

operational or maintenance aspects of 

the facility; and 

* * * * * 

(k) Application requirements for new 

sources and new discharges. New 

manufacturing, commercial, mining and 

silvicultural dischargers applying for 

NPDES permits (except for new 

discharges of facilities subject to the 

requirements of paragraph (h) of this 

section or new discharges of storm 

water associated with industrial activity 

which are subject to the requirements of 

§ 122.26(c)(1) and this section (except as 

provided by § 122.26(c)(1)(ii)) shall 

provide the following information to the 

Director, using the application forms 

provided by the Director: 

(1) Expected outfall location. The 

latitude and longitude to the nearest 

second, including the method of 

collection, and the name of the 

receiving water. 

* * * * * 

(5) * * * 

(vi) No later than 18 months after the 

commencement of discharge from the 

proposed facility, the applicant is 

required to complete and submit items 

V and VI of NPDES application Form 2C 

(see § 122.21(g)). However, the applicant 

need not complete those portions of 

Item V requiring tests which have 

already been performed and reported 

under the discharge monitoring 

requirements of the NPDES permit. 

* * * * * 

(q) * * * 

(1) * * * 

(i) The name, mailing address, and 

location, including latitude and 

longitude to the nearest second and 

method of collection, of the TWTDS for 

which the application is submitted; 

* * * * * 

(2) * * * 

(i) The name, mailing address, 

telephone number, and electronic mail 

address, 

* * * * * 

(8) * * * 

(ii) * * * 

(A) The name, mailing address, and 

location, including the latitude and 

longitude to the nearest second and the 

method of collection, of the other 

facility; 

* * * * * 

(vi) If sewage sludge from the 

applicant’s facility is provided to 

another ‘‘person who prepares,’’ as 

defined at 40 CFR 503.9(r), and the 

sewage sludge is not subject to 

paragraph (q)(8)(iv) of this section, the 

applicant must provide the following 

information for each facility receiving 

the sewage sludge: 

(A) The name, mailing address, and 

electronic mail address of the receiving 

facility; 

* * * * * 

(9) * * * 

(iii) * * * 

(B) The site’s latitude and longitude to 

the nearest second and method of 

collection; 

* * * * * 

(D) The name, mailing address, 

telephone number, and electronic mail 

address of the site owner, if different 

from the applicant; 

(E) The name, mailing address, 

telephone number, and electronic mail 

address of the person who applies 

sewage sludge to the site, if different 

from the applicant; 

* * * * * 

(iv) * * * 

(A) Whether the applicant has 

contacted the permitting authority in 

the State where the bulk sewage sludge 

subject to § 503.13(b)(2) will be applied, 

to ascertain whether bulk sewage sludge 

subject to § 503.13(b)(2) has been 

applied to the site on or since July 20, 

1993, and if so, the name of the 

permitting authority and the name, 

phone number, and electronic mail 

address if available, of a contact person 

at the permitting authority; 

* * * * * 

(10) * * * 

(ii) * * * 

(A) The site name or number, contact 

person, mailing address, telephone 

number, and electronic mail address for 

the surface disposal site; and 

* * * * * 

(iii) * * * 

(B) The unit’s latitude and longitude 

to the nearest second and method of 

collection; 

* * * * * 

(K) * * * 

(1) The name, contact person, mailing 

address, and electronic mail address of 

the facility; and 

* * * * * 

(11) * * * 

(ii) * * * 

(A) The name and/or number, contact 

person, mailing address, telephone 

number, and electronic mail address of 

the sewage sludge incinerator; and 

* * * * * 

(iii) * * * 

(B) The incinerator’s latitude and 

longitude to the nearest second and 

method of collection; 

* * * * * 

(12) * * * 

(i) The name, contact person, mailing 

address, electronic mail address, 

location (including latitude and 

longitude to the nearest second and the 

method of collection), and all applicable 

permit numbers of the MSWLF; 

* * * * * 

(13) Contractors. All applicants must 

provide the name, mailing address, 

telephone number, electronic mail 

address and responsibilities of all 

contractors responsible for any 

operational or maintenance aspects of 

the facility related to sewage sludge 

generation, treatment, use, or disposal; 

* * * * * 

(r) * * * 

(3) * * * 

(ii) Latitude and longitude to the 

nearest second and the method of 

collection for each cooling water intake 

structure; 

* * * * * 

Subpart C—Permit Conditions 

■ 4. Section 122.44 is amended by: 

■ a. Revising paragraphs (d)(1) 

introductory text and (d)(1)(ii); 

■ b. Adding paragraph (d)(1)(vii)(C); 

■ c. Revising the note to paragraph 

(k)(4); 

■ d. Revising paragraph (l)(2); and, 

■ e. Adding paragraph (l)(3). 

The additions and revisions read as 

follows: 


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§ 122.44 Establishing limitations, 

standards, and other permit conditions 

(applicable to State NPDES programs, see 

§ 123.25). 

* * * * * 

(d) * * * 

(1) Achieve water quality standards 

established under section 303 of the 

CWA, including State narrative criteria 

for water quality, and ensure 

consistency with the State 

antidegradation policy established 

under § 131.12. 

* * * * * 

(ii) When determining whether a 

discharge causes, has the reasonable 

potential to cause, or contributes to an 

in-stream excursion above a narrative or 

numeric criteria within a State water 

quality standard, the permitting 

authority shall use procedures which 

account for existing controls on point 

and nonpoint sources of pollution, the 

variability of the pollutant or pollutant 

parameter in the effluent, the sensitivity 

of the species to toxicity testing (when 

evaluating whole effluent toxicity), the 

use of relevant qualitative or 

quantitative data, analyses, or other 

information on pollutants or pollutant 

parameters to assess the need for a water 

quality-based effluent limitation, and 

where appropriate, the dilution of the 

effluent in the receiving water. A 

dilution allowance under this paragraph 

must comply with applicable dilution 

and mixing zone requirements and low 

flows established in State water quality 

standards and must be supported by 

data or analyses that account for the 

presence of each assessed pollutant or 

pollutant parameter in the receiving 

water (see fact sheet requirements at 

§ 124.56(a)). 

* * * * * 

(vii) * * * 

(C) Any dilution allowance complies 

with applicable dilution and mixing 

zone requirements and low flows 

established in State water quality 

standards and must be supported by 

data or analyses quantifying or 

accounting for the presence of each 

limited pollutant or pollutant parameter 

in the receiving water (see fact sheet 

requirements at § 124.56(a)). 

* * * * * 

(k) * * * 

(4) * * * 

Note to Paragraph (k)(4): Additional 

technical information on BMPs and the 

elements of BMPs is contained in the 

following documents: Guidance Manual for 

Developing Best Management Practices 

(BMPs), October 1993, EPA No. 833/B–93– 

004, NTIS No. PB 94–178324, ERIC No. 

W498); Storm Water Management for 

Construction Activities: Developing Pollution 

Prevention Plans and Best Management 

Practices, September 1992, EPA No. 832/R– 

92–005, NTIS No. PB 92–235951, ERIC No. 

N482); Storm Water Management for 

Construction Activities, Developing Pollution 

Prevention Plans and Best Management 

Practices: Summary Guidance, EPA No. 833/ 

R–92–001, NTIS No. PB 93–223550; ERIC No. 

W139; Storm Water Management for 

Industrial Activities, Developing Pollution 

Prevention Plans and Best Management 

Practices, September 1992; EPA 832/R–92– 

006, NTIS No. PB 92–235969, ERIC No. 

N477; Storm Water Management for 

Industrial Activities, Developing Pollution 

Prevention Plans and Best Management 

Practices: Summary Guidance, EPA 833/R– 

92–002, NTIS No. PB 94–133782; ERIC No. 

W492. EPA guidance documents can be 

obtained through the National Service Center 

for Environmental Publications (NSCEP) at 

http://www.epa.gov/nscep. In addition, 

States may have BMP guidance documents. 

* * * * * 

(l) * * * 

(2)(i) In the case of effluent limitations 

established on the basis of section 

402(a)(1)(B) of the CWA, a permit may 

not be renewed, reissued, or modified 

on the basis of effluent guidelines 

promulgated under section 304(b) 

subsequent to the original issuance of 

such permit, to contain effluent 

limitations which are less stringent than 

the comparable effluent limitations in 

the previous permit. 

(ii) In the case of effluent limitations 

established on the basis of section 

301(b)(1)(C) or section 303(d) or (e) of 

the CWA, a permit may not be renewed, 

reissued, or modified to contain effluent 

limitations that are less stringent than 

the comparable effluent limitations in 

the previous permit except in 

compliance with paragraph (l)(3) of this 

section. 

(iii) Exceptions. A permit with respect 

to which paragraph (l)(2) of this section 

applies may be renewed, reissued, or 

modified to contain a less stringent 

effluent limitation applicable to a 

pollutant, if: 

(A) Material and substantial 

alterations or additions to the permitted 

facility occurred after permit issuance 

which justify the application of a less 

stringent effluent limitation; 

(B)(1) Information is available which 

was not available at the time of permit 

issuance (other than revised regulations, 

guidance, or test methods) and which 

would have justified the application of 

a less stringent effluent limitation at the 

time of permit issuance; or 

(2) The Administrator determines that 

technical mistakes or mistaken 

interpretations of law were made in 

issuing the permit under section 

402(a)(1)(b); 

(C) A less stringent effluent limitation 

is necessary because of events over 

which the permittee has no control and 

for which there is no reasonably 

available remedy; 

(D) The permittee has received a 

permit modification under section 

301(c), 301(g), 301(h), 301(i), 301(k), 

301(n), or 316(a); or 

(E) The permittee has installed the 

treatment facilities required to meet the 

effluent limitations in the previous 

permit and has properly operated and 

maintained the facilities but has 

nevertheless been unable to achieve the 

previous effluent limitations, in which 

case the limitations in the reviewed, 

reissued, or modified permit may reflect 

the level of pollutant control actually 

achieved (but shall not be less stringent 

than required by effluent guidelines in 

effect at the time of permit renewal, 

reissuance, or modification). 

(iv) Limitations. In no event may a 

permit with respect to which paragraph 

(l)(2) of this section applies be renewed, 

reissued, or modified to contain an 

effluent limitation which is less 

stringent than required by effluent 

guidelines in effect at the time the 

permit is renewed, reissued, or 

modified. In no event may such a permit 

to discharge into waters be renewed, 

issued, or modified to contain a less 

stringent effluent limitation if the 

implementation of such limitation 

would result in a violation of a water 

quality standard under section 303 

applicable to such waters. 

Note to paragraph (l)(2). Paragraph 

(2)(iii)(B)(1) of this section shall not apply to 

any revised waste load allocations or any 

alternative grounds for translating water 

quality standards into effluent limitations, 

except where the cumulative effect of such 

revised allocations results in a decrease in 

the amount of pollutants discharged into the 

concerned waters, and such revised 

allocations are not the result of a discharger 

eliminating or substantially reducing its 

discharge of pollutants due to complying 

with the requirements of this chapter or for 

reasons otherwise unrelated to water quality. 

(3)(i) Standard Not Attained. For 

waters identified under section 

303(1)(A) of the Act where the 

applicable water quality standard has 

not yet been attained, any effluent 

limitation based on a total maximum 

daily load or other waste load allocation 

established under this section may be 

revised only if: (A) The cumulative 

effect of all such revised effluent 

limitations based on such total 

maximum daily load or waste load 

allocation will assure the attainment of 

such water quality standard, or (B) the 

designated use which is not being 

attained is removed in accordance with 

regulations established under this 

section. 


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(ii) Standard Attained. Any effluent 

limitation based on a total maximum 

daily load or other waste load allocation 

established under this section, or any 

water quality standard established 

under this section, or any other 

permitting standard may be revised only 

if such revision is subject to and 

consistent with the antidegradation 

requirements established under this 

section. 

■ 5. Section 122.45 is amended by 

revising the section heading and 

paragraph (b)(1) to read as follows: 

§ 122.45 Calculating NPDES permit 

conditions (applicable to State NPDES 

programs, see 40 CFR 123.25). 

* * * * * 

(b) Production-based limitations. (1) 

In the case of POTWs, permit effluent 

limitations, standards, or prohibitions 

derived from technology-based 

requirements pursuant to § 125.3(a)(1) 

shall be calculated based on design 

flow. 

* * * * * 

PART 123—STATE PROGRAM 

REQUIREMENTS 

■ 6. The authority citation for part 123 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1252 et seq. 

Subpart C—Transfer of Information 

and Permit Review 

■ 7. Section 123.44 is amended by 

adding paragraph (k) to read as follows: 

§ 123.44 EPA review of and objections to 

State permits. 

* * * * * 

Option 1 for Paragraph (k)(1) 

(k)(1) Where a State does not submit 

a proposed permit (or draft permit, if 

applicable under paragraph (j) of this 

section) to EPA within two years, after 

the expiration of the existing permit, 

and the permit is administratively 

continued under state law in accordance 

with § 122.6(d), EPA may, in its 

discretion, review the administratively 

continued permit as a proposed permit, 

in accordance with the procedures in 

paragraphs (a)(1) through (h)(3) of this 

section. 

Option 2 for Paragraph (k)(1) 

(k)(1) Where a State does not submit 

a proposed permit (or draft permit, if 

applicable under paragraph (j) of this 

section) to EPA within five years, after 

the expiration of the existing permit, 

and the permit is administratively 

continued under state law in accordance 

with § 122.6(d), EPA may, in its 

discretion, review the administratively 

continued permit as a proposed permit, 

in accordance with the procedures in 

paragraphs (a)(1) through (h)(3) of this 

section. 

Option 1 for Paragraph (k)(2) 

(2) To review an expired and 

administratively continued permit 

under this paragraph, EPA must provide 

the State and the permittee with written 

notice stating that if a proposed permit 

(or draft permit, if applicable under 

paragraph (j) of this section) is not 

provided within 180 days, the Regional 

Administrator will designate the 

expired permit as a proposed permit 

submitted to EPA for review under this 

section. EPA may submit this notice any 

time beginning two years after permit 

expiration. 

Option 2 for Paragraph (k)(2) 

(2) To review an expired and 

administratively continued permit 

under this paragraph, EPA must provide 

the State and the permittee with written 

notice stating that if a proposed permit 

(or draft permit, if applicable under 

paragraph (j) of this section) is not 

provided within 180 days, the Regional 

Administrator will designate the 

expired permit as a proposed permit 

submitted to EPA for review under this 

section. EPA may submit this notice any 

time beginning five years after permit 

expiration. 

(3) If the State submits a draft or 

proposed permit for EPA review at any 

time before exclusive authority to issue 

the permit passes to EPA under 

paragraph (h) of this section, EPA will 

suspend its designation of the 

administratively continued permit as a 

proposed permit under this paragraph 

and will evaluate the proposed permit 

(or draft permit, if applicable under 

paragraph (j) of this section) submitted 

by the State in accordance with the 

procedures described in paragraphs 

(a)(1) through (h)(3) of this section. 

(i) If the State does not reissue the 

permit within 180 days following 

completion of EPA’s review of the draft 

or proposed permit submitted by the 

State in accordance with paragraph 

(k)(3) of this section, EPA may reinstate 

its designation of the administratively 

continued permit as the proposed 

permit, and the procedures and 

timelines established in paragraphs 

(a)(1) through (h)(3) of this section will 

proceed from the point of the 

suspension. EPA must provide the State 

and permittee written notice of this 

decision to reinstate the designation. 

(ii) [Reserved] 

PART 124—PROCEDURES FOR 

DECISIONMAKING 

■ 8. The authority citation for part 124 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1253 et seq. 

Subpart A—General Program 

Requirements 

■ 9. Section 124.10 is amended by 

revising (c) introductory text and adding 

paragraph (c)(2)(iv) to read as follows: 

§ 124.10 Public notice of permit actions 

and public comment period. 

* * * * * 

(c) Methods (applicable to State 

programs, see 40 CFR 123.25 (NPDES), 

145.11 (UIC), 233.26 (404), and 271.14 

(RCRA)). Public notice of activities 

described in paragraph (a)(1) of this 

section shall be given by the following 

methods: 

* * * * * 

(2) * * * 

(iv) For NPDES major permits and 

NPDES general permits, in lieu of the 

requirement to post a notice in a daily 

or weekly newspaper, as described in 

paragraph (2)(i) of this section, the 

Director may post all notices required 

by this paragraph to the permitting 

authority’s public Web site. If the 

Director selects this option, in addition 

to meeting the requirements in 

§ 124.10(d), the Director must post the 

draft permit and fact sheet on the Web 

site during the public comment period, 

and must post the final permit, fact 

sheet and response to comments (if any) 

on the Web site from the date of 

issuance of the permit until the permit 

is reissued or terminated. 

Note to paragraph (c)(2)(iv): The Director 

is encouraged to ensure that the method(s) of 

public notice effectively informs all 

interested communities and allows access to 

the permitting process for those seeking to 

participate. 

Subpart D—Specific Procedures 

Applicable to NPDES Permits 

■ 10. Section 124.55 is amended by 

revising paragraph (b) to read as follows: 

§ 124.55 Effect of State certification. 

* * * * * 

(b) If there is a change in the State law 

or regulation upon which a certification 

is based, or if a court of competent 

jurisdiction or appropriate State board 

or agency stays, vacates, or remands a 

certification, a State which has issued a 

certification under § 124.53 may issue a 

modified certification or notice of 

waiver and forward it to EPA. If the 

modified certification or notice of 


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Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Proposed Rules 31373 

waiver is received before final agency 

action on the permit, the permit shall be 

consistent with the more stringent 

conditions which are based upon State 

law identified in such certification. If 

the modified certification or notice of 

waiver is received after final agency 

action on the permit, the Regional 

Administrator may modify the permit to 

be consistent with any more stringent 

conditions added to the certification 

following resolution of an 

administrative or judicial challenge to 

the certification. In all other instances 

where the certification or notice of 

waiver is received after final agency 

action on the permit, the Regional 

Administrator may modify the permit 

on request of the permittee only to the 

extent necessary to delete any 

conditions based on a condition in a 

certification invalidated by a court of 

competent jurisdiction or by an 

appropriate State board or agency. 

* * * * * 

■ 11. Section 124.56 is amended by: 

■ a. Revising paragraphs (a), (b)(1)(vi), 

and (c); and 

■ b. Adding paragraph (b)(1)(vii). 

The additions and revision read as 

follows: 

§ 124.56 Fact sheets. 

* * * * * 

(a) Any calculations or other 

necessary explanation of the derivation 

of all effluent limitations, standards and 

other permit conditions specific to the 

permitted discharge, including sewage 

sludge use or disposal conditions. 

Where effluent limitations and 

conditions are carried forward from a 

previous permit, explanation of the 

basis of the existing limitations and 

conditions must be included in the fact 

sheet or administrative record for the 

draft permit. Where the information in 

paragraphs (a)(1) and (2) of this section 

is contained in other documents that are 

part of the administrative record, the 

fact sheet may provide a brief summary 

of the required information and a 

specific reference to the source 

document within the administrative 

record, rather than repeating the 

information. Where applicable, fact 

sheets must contain: 

(1) For NPDES individual permits: 

(i) A citation to the specific federal or 

state effluent limitation guideline, 

performance standard, or standard for 

sewage sludge use or disposal as 

required by § 122.44 from which 

effluent limitations and conditions are 

derived; 

(ii) An identification of: 

(A) The receiving water(s); 

(B) The State water quality standards 

that apply to the receiving water(s); 

(C) The CWA section 303(d)/305(b) 

assessment status of the receiving 

water(s), and; 

(D) Whether a total maximum daily 

load has been established for any 

pollutant or pollutant parameter for 

which the receiving water(s) is listed as 

impaired; 

(iii) An explanation and calculations 

for effluent limits or conditions 

necessary to achieve technology-based 

standards required by § 122.44(a) and 

best management practices required 

pursuant to § 122.44(k); 

(iv) An explanation of the basis for the 

inclusion of requirements in addition to, 

or more stringent than, promulgated 

effluent limitations guidelines or 

standards consistent with § 122.44(d), 

including, but not limited to, a 

description of: 

(A) How pollutants and pollutant 

parameters were selected for analysis for 

the need for effluent limitations under 

§ 122.44(d) to achieve water quality 

standards, including a summary of 

effluent characteristics; 

(B) The receiving water ambient 

pollutant concentration data for all 

pollutants for which a dilution or 

mixing allowance is granted pursuant to 

§ 122.44(d)(1)(ii), or an explanation of 

why such data are not applicable or 

available; 

(C) For any proposed water qualitybased effluent limitation or condition 

required by § 122.44(d), any dilution or 

mixing allowance, including a 

discussion of how ambient pollutant 

concentrations were considered in the 

water quality analysis; 

(D) If an EPA-approved or established 

total maximum daily load has assigned 

a waste load allocation to the proposed 

discharge, how permit effluent 

limitations and conditions were 

developed consistent with the 

assumptions of the waste load 

allocation, and; where the permitting 

authority determines that a discharge 

will cause, have a reasonable potential 

to cause, or contribute to an excursion 

above any State narrative water quality 

criterion, how the permit ensures 

compliance with applicable State 

narrative water quality criteria 

consistent with § 122.44(d)(1)(v) and 

(vi); 

(v) For any proposed effluent 

limitation or condition required by 

§ 122.44, information sufficient to 

ensure that the discharge is consistent 

with the State’s antidegradation 

requirements; and 

(vi) a discussion of the permit’s 

monitoring and reporting requirements, 

including an assurance that the 

prescribed analytical methods meet the 

requirements of § 122.44(i). 

(2) For NPDES general permits: 

(i) A description of how the issuance 

of the general permit conforms with the 

requirements of § 122.28, including the 

geographic area of coverage, the types, 

classes, or categories of waters to which 

the general permit authorizes discharge, 

and the sources that will be covered by 

the general permit; 

(ii) A citation to the specific federal or 

State effluent limitation guideline, 

performance standard, or standard for 

sewage sludge use or disposal as 

required by § 122.44 from which 

effluent limitations and conditions are 

derived; 

(iii) A description and rationale for 

other requirements included in the 

general permit, including effluent limits 

or conditions necessary to achieve 

technology-based standards required by 

§ 122.44(a) and best management 

practices required pursuant to 

§ 122.44(k); 

(iv) A description of how the general 

permit ensures that discharges are 

controlled as necessary to meet 

applicable State water quality standards, 

including consideration of State 

antidegradation policies and applicable 

waste load allocations from EPA 

approved or established total maximum 

daily loads, in accordance with the 

requirements of § 122.44(d); 

(v) A discussion of proposed 

monitoring and reporting conditions, 

including assurance that prescribed 

analytical methods meet the 

requirements of § 122.44(i); and 

(vi) A description of the Notice of 

Intent information and submission 

requirements, and the process by which 

the permit provides authorization to 

discharge or authorization to engage in 

sludge use and disposal practices. 

Where the general permit does not 

require a Notice of Intent, a description 

of why the Notice of Intent process is 

inappropriate in accordance with the 

criteria established in § 122.28(b)(2)(v). 

(b)(1) * * * 

(vi) Waivers from monitoring 

requirements granted under § 122.44(a) 

of this chapter; or 

(vii) Compliance schedules granted 

under § 122.47 of this chapter. 

* * * * * 

(c) When appropriate, a sketch or 

detailed description of the location of 

each discharge or regulated activity, 

including the geographic coordinates, 

described in the application; and 

* * * * * 


sradovich on DSK3TPTVN1PROD with PROPOSALS3
31374 Federal Register / Vol. 81, No. 96 / Wednesday, May 18, 2016 / Proposed Rules 

PART 125—CRITERIA AND 

STANDARDS FOR THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 12. Revise the authority citation for 

part 125 to read as follows: 

Authority: The Clean Water Act, 33 

U.S.C., 1251 et seq. 

Subpart A—Criteria and Standards for 

Imposing Technology-Based 

Treatment Requirements Under 

Sections 301(b) and 402 of the Act 

§ 125.3 [Amended] 

■ 13. Section 125.3 is amended by 

removing and reserving paragraph 

(a)(1)(ii). 

[FR Doc. 2016–11265 Filed 5–17–16; 8:45 am] 

BILLING CODE 6560–50–P 


sradovich on DSK3TPTVN1PROD with PROPOSALS3