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Environmental Protection Agency § 122.41

under § 122.34(g)(3), you must also specify that you rely on another entity to

satisfy some of your permit obligations. If you are relying on another

governmental entity regulated under

section 122 to satisfy all of your permit

obligations, including your obligation

to file periodic reports required by

§ 122.34(g)(3), you must note that fact in

your NOI, but you are not required to

file the periodic reports. You remain

responsible for compliance with your

permit obligations if the other entity

fails to implement the control measure

(or component thereof). Therefore,

EPA encourages you to enter into a legally binding agreement with that entity if you want to minimize any uncertainty about compliance with your

permit.

(b) In some cases, the NPDES permitting authority may recognize, either in

your individual NPDES permit or in an

NPDES general permit, that another

governmental entity is responsible

under an NPDES permit for implementing one or more of the minimum

control measures for your small MS4 or

that the permitting authority itself is

responsible. Where the permitting authority does so, you are not required to

include such minimum control measure(s) in your storm water management program. (For example, if a State

or Tribe is subject to an NPDES permit

that requires it to administer a program to control construction site runoff at the State or Tribal level and that

program satisfies all of the requirements of § 122.34(b)(4), you could avoid

responsibility for the construction

measure, but would be responsible for

the remaining minimum control measures.) Your permit may be reopened

and modified to include the requirement to implement a minimum control

measure if the entity fails to implement it.

[64 FR 68846, Dec. 8, 1999]

§ 122.36 As an operator of a regulated

small MS4, what happens if I don’t

comply with the application or permit requirements in §§ 122.33

through 122.35?

NPDES permits are federally enforceable. Violators may be subject to

the enforcement actions and penalties

described in Clean Water Act sections

309 (b), (c), and (g) and 505, or under applicable State, Tribal, or local law.

Compliance with a permit issued pursuant to section 402 of the Clean Water

Act is deemed compliance, for purposes

of sections 309 and 505, with sections

301, 302, 306, 307, and 403, except any

standard imposed under section 307 for

toxic pollutants injurious to human

health. If you are covered as a co-permittee under an individual permit or

under a general permit by means of a

joint Notice of Intent you remain subject to the enforcement actions and

penalties for the failure to comply with

the terms of the permit in your jurisdiction except as set forth in § 122.35(b).

[64 FR 68847, Dec. 8, 1999]

§ 122.37 Will the small MS4 storm

water program regulations at

§§ 122.32 through 122.36 and § 123.35

of this chapter change in the future?

EPA will evaluate the small MS4 regulations at §§ 122.32 through 122.36 and

§ 123.35 of this chapter after December

10, 2012 and make any necessary revisions. (EPA intends to conduct an enhanced research effort and compile a

comprehensive evaluation of the

NPDES MS4 storm water program.

EPA will re-evaluate the regulations

based on data from the NPDES MS4

storm water program, from research on

receiving water impacts from storm

water, and the effectiveness of best

management practices (BMPs), as well

as other relevant information sources.)

[64 FR 68847, Dec. 8, 1999]

Subpart C—Permit Conditions

§ 122.41 Conditions applicable to all

permits (applicable to State programs, see § 123.25).

The following conditions apply to all

NPDES permits. Additional conditions

applicable to NPDES permits are in

§ 122.42. All conditions applicable to

NPDES permits shall be incorporated

into the permits either expressly or by

reference. If incorporated by reference,

a specific citation to these regulations

(or the corresponding approved State

regulations) must be given in the permit.

(a) Duty to comply. The permittee

must comply with all conditions of this

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§ 122.41 40 CFR Ch. I (7–1–01 Edition)

permit. Any permit noncompliance

constitutes a violation of the Clean

Water Act and is grounds for enforcement action; for permit termination,

revocation and reissuance, or modification; or denial of a permit renewal application.

(1) The permittee shall comply with

effluent standards or prohibitions established under section 307(a) of the

Clean Water Act for toxic pollutants

and with standards for sewage sludge

use or disposal established under section 405(d) of the CWA within the time

provided in the regulations that establish these standards or prohibitions or

standards for sewage sludge use or disposal, even if the permit has not yet

been modified to incorporate the requirement.

(2) The Clean Water Act provides

that any person who violates section

301, 302, 306, 307, 308, 318 or 405 of the

Act, or any permit condition or limitation implementing any such sections in

a permit issued under section 402, or

any requirement imposed in a

pretreatment program approved under

sections 402(a)(3) or 402(b)(8) of the Act,

is subject to a civil penalty not to exceed $25,000 per day for each violation.

The Clean Water Act provides that any

person who negligently violates sections

301, 302, 306, 307, 308, 318, or 405 of the

Act, or any condition or limitation implementing any of such sections in a

permit issued under section 402 of the

Act, or any requirement imposed in a

pretreatment program approved under

section 402(a)(3) or 402(b)(8) of the Act,

is subject to criminal penalties of $2,500

to $25,000 per day of violation, or imprisonment of not more than 1 year, or

both. In the case of a second or subsequent conviction for a negligent violation, a person shall be subject to criminal penalties of not more than $50,000

per day of violation, or by imprisonment of not more than 2 years, or both.

Any person who knowingly violates

such sections, or such conditions or

limitations is subject to criminal penalties of $5,000 to $50,000 per day of violation, or imprisonment for not more

than 3 years, or both. In the case of a

second or subsequent conviction for a

knowing violation, a person shall be

subject to criminal penalties of not

more than $100,000 per day of violation,

or imprisonment of not more than 6

years, or both. Any person who knowingly violates section 301, 302, 303, 306,

307, 308, 318 or 405 of the Act, or any

permit condition or limitation implementing any of such sections in a permit issued under section 402 of the Act,

and who knows at that time that he

thereby places another person in imminent danger of death or serious bodily

injury, shall, upon conviction, be subject to a fine of not more than $250,000

or imprisonment of not more than 15

years, or both. In the case of a second

or subsequent conviction for a knowing

endangerment violation, a person shall

be subject to a fine of not more than

$500,000 or by imprisonment of not

more than 30 years, or both. An organization, as defined in section

309(c)(3)(B)(iii) of the CWA, shall, upon

conviction of violating the imminent

danger provision, be subject to a fine of

not more than $1,000,000 and can be

fined up to $2,000,000 for second or subsequent convictions.

(3) Any person may be assessed an administrative penalty by the Administrator for violating section 301, 302, 306,

307, 308, 318 or 405 of this Act, or any

permit condition or limitation implementing any of such sections in a permit issued under section 402 of this

Act. Administrative penalties for Class

I violations are not to exceed $10,000

per violation, with the maximum

amount of any Class I penalty assessed

not to exceed $25,000. Penalties for

Class II violations are not to exceed

$10,000 per day for each day during

which the violation continues, with the

maximum amount of any Class II penalty not to exceed $125,000.

(b) Duty to reapply. If the permittee

wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee

must apply for and obtain a new permit.

(c) Need to halt or reduce activity not a

defense. It shall not be a defense for a

permittee in an enforcement action

that it would have been necessary to

halt or reduce the permitted activity

in order to maintain compliance with

the conditions of this permit.

(d) Duty to mitigate. The permittee

shall take all reasonable steps to minimize or prevent any discharge or

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Environmental Protection Agency § 122.41

sludge use or disposal in violation of

this permit which has a reasonable

likelihood of adversely affecting

human health or the environment.

(e) Proper operation and maintenance.

The permittee shall at all times properly operate and maintain all facilities

and systems of treatment and control

(and related appurtenances) which are

installed or used by the permittee to

achieve compliance with the conditions

of this permit. Proper operation and

maintenance also includes adequate

laboratory controls and appropriate

quality assurance procedures. This provision requires the operation of backup or auxiliary facilities or similar systems which are installed by a permittee only when the operation is necessary to achieve compliance with the

conditions of the permit.

(f) Permit actions. This permit may be

modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit

modification, revocation and

reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any

permit condition.

(g) Property rights. This permit does

not convey any property rights of any

sort, or any exclusive privilege.

(h) Duty to provide information. The

permittee shall furnish to the Director,

within a reasonable time, any information which the Director may request to

determine whether cause exists for

modifying, revoking and reissuing, or

terminating this permit or to determine compliance with this permit. The

permittee shall also furnish to the Director upon request, copies of records

required to be kept by this permit.

(i) Inspection and entry. The permittee shall allow the Director, or an

authorized representative (including an

authorized contractor acting as a representative of the Administrator), upon

presentation of credentials and other

documents as may be required by law,

to:

(1) Enter upon the permittee’s premises where a regulated facility or activity is located or conducted, or where

records must be kept under the conditions of this permit;

(2) Have access to and copy, at reasonable times, any records that must

be kept under the conditions of this

permit;

(3) Inspect at reasonable times any

facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

(4) Sample or monitor at reasonable

times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act, any substances or parameters at any location.

(j) Monitoring and records. (1) Samples

and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

(2) Except for records of monitoring

information required by this permit related to the permittee’s sewage sludge

use and disposal activities, which shall

be retained for a period of at least five

years (or longer as required by 40 CFR

part 503), the permittee shall retain

records of all monitoring information,

including all calibration and maintenance records and all original strip

chart recordings for continuous monitoring instrumentation, copies of all

reports required by this permit, and

records of all data used to complete the

application for this permit, for a period

of at least 3 years from the date of the

sample, measurement, report or application. This period may be extended by

request of the Director at any time.

(3) Records of monitoring information shall include:

(i) The date, exact place, and time of

sampling or measurements;

(ii) The individual(s) who performed

the sampling or measurements;

(iii) The date(s) analyses were performed;

(iv) The individual(s) who performed

the analyses;

(v) The analytical techniques or

methods used; and

(vi) The results of such analyses.

(4) Monitoring results must be conducted according to test procedures approved under 40 CFR part 136 or, in the

case of sludge use or disposal, approved

under 40 CFR part 136 unless otherwise

specified in 40 CFR part 503, unless

other test procedures have been specified in the permit.

(5) The Clean Water Act provides

that any person who falsifies, tampers

with, or knowingly renders inaccurate

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§ 122.41 40 CFR Ch. I (7–1–01 Edition)

any monitoring device or method required to be maintained under this permit shall, upon conviction, be punished

by a fine of not more than $10,000, or by

imprisonment for not more than 2

years, or both. If a conviction of a person is for a violation committed after a

first conviction of such person under

this paragraph, punishment is a fine of

not more than $20,000 per day of violation, or by imprisonment of not more

than 4 years, or both.

(k) Signatory requirement. (1) All applications, reports, or information submitted to the Director shall be signed

and certified. (See § 122.22)

(2) The CWA provides that any person

who knowingly makes any false statement, representation, or certification

in any record or other document submitted or required to be maintained

under this permit, including monitoring reports or reports of compliance

or non-compliance shall, upon conviction, be punished by a fine of not more

than $10,000 per violation, or by imprisonment for not more than 6 months per

violation, or by both.

(l) Reporting requirements. (1) Planned

changes. The permittee shall give notice to the Director as soon as possible

of any planned physical alterations or

additions to the permitted facility. Notice is required only when:

(i) The alteration or addition to a

permitted facility may meet one of the

criteria for determining whether a facility is a new source in § 122.29(b); or

(ii) The alteration or addition could

significantly change the nature or increase the quantity of pollutants discharged. This notification applies to

pollutants which are subject neither to

effluent limitations in the permit, nor

to notification requirements under

§ 122.42(a)(1).

(iii) The alteration or addition results in a significant change in the permittee’s sludge use or disposal practices, and such alteration, addition, or

change may justify the application of

permit conditions that are different

from or absent in the existing permit,

including notification of additional use

or disposal sites not reported during

the permit application process or not

reported pursuant to an approved land

application plan;

(2) Anticipated noncompliance. The

permittee shall give advance notice to

the Director of any planned changes in

the permitted facility or activity

which may result in noncompliance

with permit requirements.

(3) Transfers. This permit is not

transferable to any person except after

notice to the Director. The Director

may require modification or revocation

and reissuance of the permit to change

the name of the permittee and incorporate such other requirements as may

be necessary under the Clean Water

Act. (See § 122.61; in some cases, modification or revocation and reissuance is

mandatory.)

(4) Monitoring reports. Monitoring results shall be reported at the intervals

specified elsewhere in this permit.

(i) Monitoring results must be reported on a Discharge Monitoring Report (DMR) or forms provided or specified by the Director for reporting results of monitoring of sludge use or disposal practices.

(ii) If the permittee monitors any

pollutant more frequently than required by the permit using test procedures approved under 40 CFR part 136

or, in the case of sludge use or disposal,

approved under 40 CFR part 136 unless

otherwise specified in 40 CFR part 503,

or as specified in the permit, the results of this monitoring shall be included in the calculation and reporting

of the data submitted in the DMR or

sludge reporting form specified by the

Director.

(iii) Calculations for all limitations

which require averaging of measurements shall utilize an arithmetic mean

unless otherwise specified by the Director in the permit.

(5) Compliance schedules. Reports of

compliance or noncompliance with, or

any progress reports on, interim and

final requirements contained in any

compliance schedule of this permit

shall be submitted no later than 14

days following each schedule date.

(6) Twenty-four hour reporting. (i) The

permittee shall report any noncompliance which may endanger health or the

environment. Any information shall be

provided orally within 24 hours from

the time the permittee becomes aware

of the circumstances. A written submission shall also be provided within 5

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Environmental Protection Agency § 122.41

days of the time the permittee becomes

aware of the circumstances. The written submission shall contain a description of the noncompliance and its

cause; the period of noncompliance, including exact dates and times, and if

the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or

planned to reduce, eliminate, and prevent reoccurrence of the noncompliance.

(ii) The following shall be included as

information which must be reported

within 24 hours under this paragraph.

(A) Any unanticipated bypass which

exceeds any effluent limitation in the

permit. (See § 122.41(g).

(B) Any upset which exceeds any effluent limitation in the permit.

(C) Violation of a maximum daily

discharge limitation for any of the pollutants listed by the Director in the

permit to be reported within 24 hours.

(See § 122.44(g).)

(iii) The Director may waive the

written report on a case-by-case basis

for reports under paragraph (l)(6)(ii) of

this section if the oral report has been

received within 24 hours.

(7) Other noncompliance. The permittee shall report all instances of

noncompliance not reported under

paragraphs (l) (4), (5), and (6) of this

section, at the time monitoring reports

are submitted. The reports shall contain the information listed in paragraph (l)(6) of this section.

(8) Other information. Where the permittee becomes aware that it failed to

submit any relevant facts in a permit

application, or submitted incorrect information in a permit application or in

any report to the Director, it shall

promptly submit such facts or information.

(m) Bypass—(1) Definitions. (i) Bypass

means the intentional diversion of

waste streams from any portion of a

treatment facility.

(ii) Severe property damage means substantial physical damage to property,

damage to the treatment facilities

which causes them to become inoperable, or substantial and permanent loss

of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property

damage does not mean economic loss

caused by delays in production.

(2) Bypass not exceeding limitations.

The permittee may allow any bypass to

occur which does not cause effluent

limitations to be exceeded, but only if

it also is for essential maintenance to

assure efficient operation. These bypasses are not subject to the provisions

of paragraphs (m)(3) and (m)(4) of this

section.

(3) Notice—(i) Anticipated bypass. If

the permittee knows in advance of the

need for a bypass, it shall submit prior

notice, if possible at least ten days before the date of the bypass.

(ii) Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in paragraph (l)(6) of this section (24-hour notice).

(4) Prohibition of bypass. (i) Bypass is

prohibited, and the Director may take

enforcement action against a permittee for bypass, unless:

(A) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(B) There were no feasible alternatives to the bypass, such as the use

of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not

satisfied if adequate back-up equipment should have been installed in the

exercise of reasonable engineering

judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

(C) The permittee submitted notices

as required under paragraph (m)(3) of

this section.

(ii) The Director may approve an anticipated bypass, after considering its

adverse effects, if the Director determines that it will meet the three conditions listed above in paragraph

(m)(4)(i) of this section.

(n) Upset—(1) Definition. Upset means

an exceptional incident in which there

is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of

the permittee. An upset does not include noncompliance to the extent

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§ 122.42 40 CFR Ch. I (7–1–01 Edition)

caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of

preventive maintenance, or careless or

improper operation.

(2) Effect of an upset. An upset constitutes an affirmative defense to an

action brought for noncompliance with

such technology based permit effluent

limitations if the requirements of paragraph (n)(3) of this section are met. No

determination made during administrative review of claims that noncompliance was caused by upset, and

before an action for noncompliance, is

final administrative action subject to

judicial review.

(3) Conditions necessary for a demonstration of upset. A permittee who

wishes to establish the affirmative defense of upset shall demonstrate,

through properly signed, contemporaneous operating logs, or other relevant

evidence that:

(i) An upset occurred and that the

permittee can identify the cause(s) of

the upset;

(ii) The permitted facility was at the

time being properly operated; and

(iii) The permittee submitted notice

of the upset as required in paragraph

(1)(6)(ii)(B) of this section (24 hour notice).

(iv) The permittee complied with any

remedial measures required under

paragraph (d) of this section.

(4) Burden of proof. In any enforcement proceeding the permittee seeking

to establish the occurrence of an upset

has the burden of proof.

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe

Drinking Water Act (42 U.S.C. 300f et seq.),

Clean Air Act (42 U.S.C. 7401 et seq.), Resource Conservation and Recovery Act (42

U.S.C. 6901 et seq.))

[48 FR 14153, Apr. 1, 1983, as amended at 48

FR 39620, Sept. 1, 1983; 49 FR 38049, Sept. 26,

1984; 50 FR 4514, Jan. 31, 1985; 50 FR 6940, Feb.

19, 1985; 54 FR 255, Jan. 4, 1989; 54 FR 18783,

May 2, 1989; 65 FR 30908, May 15, 2000]

§ 122.42 Additional conditions applicable to specified categories of

NPDES permits (applicable to State

NPDES programs, see § 123.25).

The following conditions, in addition

to those set forth in § 122.41, apply to

all NPDES permits within the categories specified below:

(a) Existing manufacturing, commercial,

mining, and silvicultural dischargers. In

addition to the reporting requirements

under § 122.41(1), all existing manufacturing, commercial, mining, and silvicultural dischargers must notify the

Director as soon as they know or have

reason to believe:

(1) That any activity has occurred or

will occur which would result in the

discharge, on a routine or frequent

basis, of any toxic pollutant which is

not limited in the permit, if that discharge will exceed the highest of the

following ‘‘notification levels’’:

(i) One hundred micrograms per liter

(100 μ g/l);

(ii) Two hundred micrograms per

liter (200 μ g/l) for acrolein and acrylonitrile; five hundred micrograms per

liter (500 μ g/l) for 2,4-dinitrophenol and

for 2-methyl-4,6-dinitrophenol; and one

milligram per liter (1 mg/l) for antimony;

(iii) Five (5) times the maximum concentration value reported for that pollutant in the permit application in accordance with § 122.21(g)(7); or

(iv) The level established by the Director in accordance with § 122.44(f).

(2) That any activity has occurred or

will occur which would result in any

discharge, on a non-routine or infrequent basis, of a toxic pollutant which

is not limited in the permit, if that discharge will exceed the highest of the

following ‘‘notification levels’’:

(i) Five hundred micrograms per liter

(500 μ g/l);

(ii) One milligram per liter (1 mg/l)

for antimony;

(iii) Ten (10) times the maximum

concentration value reported for that

pollutant in the permit application in

accordance with § 122.21(g)(7).

(iv) The level established by the Director in accordance with § 122.44(f).

(b) Publicly owned treatment works. All

POTWs must provide adequate notice

to the Director of the following:

(1) Any new introduction of pollutants into the POTW from an indirect

discharger which would be subject to

section 301 or 306 of CWA if it were directly discharging those pollutants;

and

(2) Any substantial change in the volume or character of pollutants being

introduced into that POTW by a source