### 193 Environmental Protection Agency § 122.41

under § 122.34(g)(3), you must also specify that you rely on another entity tosatisfy 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 responsibleunder an NPDES permit for implementing one or more of the minimum control measures for your small MS4 or that the permitting authority itself isresponsible. 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 permitthat requires it to administer a program to control construction site runoff at the State or Tribal level and thatprogram satisfies all of the requirements of § 122.34(b)(4), you could avoid responsibility for the construction measure, but would be responsible forthe remaining minimum control measures.) Your permit may be reopenedand modified to include the requirement to implement a minimum controlmeasure 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’tcomply 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 humanhealth. If you are covered as a co-permittee under an individual permit or under a general permit by means of ajoint Notice of Intent you remain subject to the enforcement actions and penalties for the failure to comply withthe 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 § 123.35of 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 December10, 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 allpermits (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 Stateregulations) must be given in the permit.

(a) Duty to comply. The permittee must comply with all conditions of this


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permit. Any permit noncompliance
constitutes a violation of the CleanWater 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 witheffluent standards or prohibitions established under section 307(a) of the Clean Water Act for toxic pollutants and with standards for sewage sludgeuse or disposal established under section 405(d) of the CWA within the timeprovided in the regulations that establish these standards or prohibitions orstandards for sewage sludge use or disposal, even if the permit has not yetbeen 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 theAct, 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 theAct, 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 $2,500to $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 $50,000per day of violation, or by imprisonment of not more than 2 years, or both. Any person who knowingly violates such sections, or such conditions orlimitations 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 6years, or both. Any person who knowingly violates section 301, 302, 303, 306, 307, 308, 318 or 405 of the Act, or anypermit 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 hethereby places another person in imminent danger of death or serious bodilyinjury, 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 notmore 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 befined 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 anypermit 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 themaximum amount of any Class II penalty not to exceed $125,000.

(b) Duty to reapply. If the permitteewishes to continue an activity regulated by this permit after the expiration date of this permit, the permitteemust 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 permitteeshall take all reasonable steps to minimize or prevent any discharge or


### 195 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 appropriatequality 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 bemodified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation andreissuance, 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, orterminating this permit or to determine compliance with this permit. Thepermittee 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 anauthorized 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 whererecords 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 anyfacilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

(4) Sample or monitor at reasonabletimes, 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) Samplesand measurements taken for the purpose of monitoring shall be representative of the monitored activity.

(2) Except for records of monitoringinformation 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 stripchart 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 thesample, 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, unlessother 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


### 196 40 CFR Ch. I (7

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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 2years, 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 ofnot 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 personwho knowingly makes any false statement, representation, or certificationin any record or other document submitted or required to be maintainedunder this permit, including monitoring reports or reports of complianceor non-compliance shall, upon conviction, be punished by a fine of not morethan $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 oradditions to the permitted facility. Notice is required only when:

(i) The alteration or addition to a permitted facility may meet one of thecriteria for determining whether a facility is a new source in § 122.29(b); or

(ii) The alteration or addition couldsignificantly 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 changethe 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 anypollutant 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 limitationswhich require averaging of measurements shall utilize an arithmetic meanunless 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) Thepermittee 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


### 197 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 itscause; the period of noncompliance, including exact dates and times, and ifthe noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken orplanned 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 dailydischarge 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 reportsare 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 permitapplication, or submitted incorrect information in a permit application or in any report to the Director, it shallpromptly 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 facilitieswhich 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 toassure 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 priornotice, 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 takeenforcement 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 useof auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is notsatisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineeringjudgment 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 itsadverse 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 thereis unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control ofthe permittee. An upset does not include noncompliance to the extent


### 198 40 CFR Ch. I (7

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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 effluentlimitations if the requirements of paragraph (n)(3) of this section are met. Nodetermination 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 toall 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 isnot 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 onemilligram 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 anydischarge, on a non-routine or infrequent basis, of a toxic pollutant whichis 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