800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 193 OF 225
COSTLE DM ADMINISTRATOR
EPA
113692
REGULATIONS
(6) THE STATE PROGRAM MUST REQUIRE THAT SUCH GENERATORS OF HAZARDOUS
WASTE WHO TRANSPORT (OR OFFER FOR TRANSPORT) SUCH HAZARDOUS WASTE
OFF-SITE USE A MANIFEST SYSTEM THAT ENSURES THAT INTER- AND INTRASTATE
SHIPMENTS OF HAZARDOUS WASTE ARE DESIGNATED FOR DELIVERY, AND IN THE
CASE OF INTRASTATE SHIPMENTS, ARE DELIVERED ONLY TO FACILITIES, THAT ARE
AUTHORIZED TO OPERATE UNDER AN APPROVED STATE PROGRAM OR THE FEDERAL
PROGRAM.
(7) THE STATE MANIFEST SYSTEM MUST REQUIRE THAT:
(I) THE MANIFEST ITSELF IDENTIFY THE GENERATOR, TRANSPORTER,
DESIGNATED FACILITY TO WHICH THE HAZARDOUS WASTE WILL BE TRANSPORTED,
AND THE HAZARDOUS WASTE BEING TRANSPORTED:
(II) THE MANIFEST ACCOMPANY ALL WASTES OFFERED FOR TRANSPORT, EXCEPT
IN THE CASE OF SHIPMENTS BY RAIL OR WATER SPECIFIED IN SECTION
S262.23(C) AND 263.20(A); AND
(III) SHIPMENTS OF HAZARDOUS WASTE THAT ARE NOT DELIVERED TO A
DESIGNATED FACILITY ARE EITHER IDENTIFIED AND REPORTED BY THE GENERATOR
TO THE STATE IN WHICH THE SHIPMENT ORIGNATED OR ARE INDEPENDENTLY
IDENTIFIED BY THE STATE IN WHICH THE SHIPMENT ORIGINATED.
(6) IN THE CASE OF INTERSTATE SHIPMENTS FOR WHICH THE MANIFEST HAS
NOT BEEN RETURNED, THE STATE PROGRAM MUST PROVIDE FOR NOTIFICATION TO
THE STATE IN WHICH THE FACILITY DESIGNATED ON THE MANIFEST IS LOCATED
AND TO THE STATE IN WHICH THE FACILITY DESIGNATED ON THE MANIFEST IS
LOCATED AND TO THE STATE IN WHICH THE SHIPMENT MAY HAVE BEEN DELIVERED
(OR TO THE EPA IN THE CASE OF UNAUTHORIZED STATES).
(C) REQUIREMENTS FOR TRANSPORTERS OF HAZARDOUS WASTES. (1) THIS
PARAGRAPH APPLIES UNLESS THE STATE COMES WITHIN THE EXCEPTIONS DESCRIBED
UNDER PARAGRAPH (D) OF THIS SECTION.
(2) THE STATE PROGRAM MUST COVER ALL TRANSPORTERS OF HAZARDOUS WASTE
CONTROLLED BY THE STATE.
(3) THE STATE SHALL HAVE THE AUTHORITY TO REQUIRE AND SHALL REQUIRE
ALL TRANSPORTERS COVERED BY THE STATE PROGRAM TO COMPLY WITH
RECORDKEEPING REQUIREMENTS SUBSTANTIALLY EQUIVALENT TO THOSE FOUND AT 40
CFR SECTION 263.22.
(4) THE STATE PROGRAM MUST REQUIRE SUCH TRANSPORTERS OF HAZARDOUS
WASTE TO USE A MANIFEST SYSTEM THAT ENSURES THAT INTER- AND INTRASTATE
SHIPMENTS OF HAZARDOUS WASTE ARE DELIVERED ONLY TO FACILITIES THAT ARE
AUTHORIZED UNDER AN APPROVED STATE PROGRAM OR THE FEDERAL PROGRAM.
(5) THE STATE PROGRAM MUST REQUIRE THAT TRANSPORTERS CARRY THE
MANIFEST WITH ALL SHIPMENTS, EXCEPT IN THE CASE OF SHIPMENTS BY RAIL OR
WATER SPECIFIED IN 40 CFR SECTION 263.20(E).
(6) FOR HAZARDOUS WASTES THAT ARE DISCHARGED IN TRANSIT, THE STATE
PROGRAM MUST REQUIRE THAT TRANSPORTERS NOTIFY APPROPRIATE STATE, LOCAL,
AND FEDERAL AGENCIES OF THE DISCHARGES, AND CLEAN UP THE WASTES OR TAKE
ACTION SO THAT THE WASTES DO NOT PRESENT A HAZARD TO HUMAN HEALTH OR THE
ENVIRONMENT. THESE REQUIREMENTS SHALL BE SUBSTANTIALLY EQUIVALENT TO
THOSE FOUND AT 40 CFR SECTIONS 263.30 AND 263.31.
(D) LIMITED EXCEPTIONS FROM GENERATOR, TRANSPORTER, AND RELATED
MANIFEST REQUIREMENTS. A STATE APPLYING FOR INTERIM AUTHORIZATION FOR
PHASE I WHICH MEETS ALL THE REQUIREMENTS FOR SUCH INTERIM AUTHORIZATION
EXCEPT THAT IT DOES NOT HAVE STATUTORY OR REGULATORY AUTHORITY FOR THE
MANIFEST SYSTEM OR OTHER GENERATOR OR TRANSPORTER REQUIREMENTS DISCUSSED
IN PARAGRAPHS (B) AND (C) OF THIS SECTION MAY BE GRANTED INTERIM
AUTHORIZATION, IF THE STATE AUTHORIZATION PLAN UNDER SECTION 123.127
DELINEATES THE NECESSARY STEPS FOR OBTAINING THIS AUTHORITY NO LATER
THAN THE END OF THE INTERIM AUTHORIZATION PERIOD UNDER SECTION
123.122(B). A STATE MAY APPLY FOR INTERIM AUTHORIZATION TO IMPLEMENT
THE MANIFEST SYSTEM AND OTHER GENERATOR AND TRANSPORTER REQUIREMENTS IF
THE ENABLING LEGISLATION FOR THAT PART OF THE PROGRAM WAS IN EXISTENCE
WITHIN 90 DAYS OF THE PROMULGATION OF PHASE I. IF SUCH APPLICATION IS
MADE, IT SHALL BE MADE AS PART OF THE STATE'S SUBMISSION FOR INTERIM
AUTHORIZATION FOR PHASE II. UNTIL THE STATE MANIFEST SYSTEM AND OTHER
GENERATOR AND TRANSPORTER REQUIREMENTS ARE APPROVED BY EPA, ALL FEDERAL
REQUIREMENTS FOR GENERATORS AND TRANSPORTERS (INCLUDING USE OF THE
FEDERAL MANIFEST SYSTEM) SHALL APPLY IN SUCH STATES AND ENFORCEMENT
RESPONSIBLITY FOR THAT PART OF THE PROGRAM SHALL REMAIN WITH THE FEDERAL
GOVERNMENT. THE UNIVERSE OF WASTES FOR WHICH THESE FEDERAL REQUIREMENTS
APPLY SHALL BE THE UNIVERSE OF WASTES CONTROLLED BY THE STATE UNDER
PARAGRAPH (A) OF THIS SECTION.
(E) REQUIREMENTS FOR HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL
FACILITIES. STATES MUST HAVE STANDARDS APPLICABLE TO HWM FACILITIES
WHICH ARE SUBSTANTIALLY EQUIVALENT TO 40 CFR PART 265. STATE LAW SHALL
PROHIBIT THE OPERATION OF FACILITIES NOT IN COMPLIANCE WITH SUCH
STANDARDS. THESE STANDARDS SHALL INCLUDE.
(1) PREPAREDNESS FOR AND PREVENTION OF RELEASES OF HAZARDOUS WASTE
CONTROLLED BY THE STATE UNDER PARAGRAPH (A) OF THIS SECTION AND
CONTINGENCY PLANS AND EMERGENCY PROCEDURES TO BE FOLLOWED IN THE EVENT
OF A RELEASE OF SUCH HAZARDOUS WASTE;
(2) CLOSURE AND POST-CLOSURE REQUIREMENTS;
(3) GROUNDWATER MONITORING;
(4) SECURITY TO PREVENT UNKNOWING AND UNAUTHORIZED ACCESS TO THE
FACILITY;
(5) FACILITY PERSONNEL TRAINING;
(6) INSPECTION, MONITORING, RECORDKEEPING AND REPORTING;
(7) COMPLIANCE WITH THE MANIFEST SYSTEM INCLUDING THE REQUIREMENT
THAT THE FACILITY OWNER OR OPERATOR OR THE STATE IN WHICH THE FACILITY
IS LOCATED MUST RETURN A COPY OF THE MANIFEST TO THE GENERATOR OR TO THE
STATE IN WHICH THE GENERATOR IS LOCATED INDICATING DELIVERY OF THE WASTE
SHIPMENT; AND
(8) OTHER FACILITY STANDARDS TO THE EXTENT THAT THEY ARE INCLUDED IN
40 CFR PART 265, EXCEPT THAT SUBPART R (STANDARDS FOR INJECTION WELLS)
MAY BE INCLUDED IN THE STATE STANDARDS AT THE STATE'S OPTION.
(F) REQUIREMENTS FOR ENFORCEMENT AUTHORITY. (1) ANY STATE AGENCY
ADMINISTERING A PROGRAM UNDER THIS SUBPART SHALL HAVE THE FOLLOWING
AUTHORITY TO REMEDY VIOLATIONS OF STATE PROGRAM REQUIREMENTS.
(I) AUTHORITY TO RESTRAIN IMMEDIATELY BY ORDER OR BY SUIT IN STATE
COURT ANY PERSON FROM ENGAGING IN ANY UNAUTHORIZED ACTIVITY WHICH IS
ENDANGERING OR CAUSING DAMAGE TO PUBLIC HEALTH OR THE ENVIRONEMNT.
(II) TO SUE IN COURTS OF COMPETENT JURISDICTION TO ENJOIN ANY
THREATENED OR CONTINUING VIOLATION OF ANY PROGRAM REQUIREMENT,
INCLUDING, WHERE APPROPRIATE, PERMIT CONDITIONS, WITHOUT THE NECESSITY
OF A PRIOR REVOCATION OF THE PERMIT; AND
(III) FOR ANY PROGRAM VIOLATION, TO ASSESS OR SUE TO RECOVER IN COURT
CIVIL PENALTIES IN AT LEAST THE AMOUNT OF 1000 DOLLARS PER DAY OR TO
SEEK CRIMINAL FINES IN AT LEAST THE AMOUNT OF 1000 DOLLARS PER DAY.
(2) ANY STATE AGENCY ADMINISTERING A PROGRAM UNDER THIS SUBPART SHALL
PROVIDE FOR PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS BY
PROVIDING EITHER;
(I) AUTHORITY WHICH ALLOWS INTERVENTION AS OF RIGHT IN ANY CIVIL OF
ADMINISTRATIVE ACTION TO OBTAIN REMEDIES SPECIFIED IN PARAGRAPH (F)(1)
OF THIS SECTION BY ANY CITIZEN HAVING AN INTEREST WHICH IS OR MAY BE
ADVERSELY AFFECTED; OR
(II) ASSURANCE THAT THE STATE AGENCY OR ENFORCEMENT AUTHORITY WILL;
(A) INVESTIGATE AND PROVIDE WRITTEN RESPONSES TO ALL CITIZEN
COMPLAINTS SUBMITTED PURSUANT TO THE PROCEDURES SPECIFIED IN PARAGRAPH
(G)(2)(IV) OF THIS SECTION;
(B) NOT OPPOSE INTERVENTION BY ANY CITIZEN WHERE PERMISSIVE
INTERVENTION MAY BE AUTHORIZED BY STATUTE, RULE, OR REGULATION; AND (C)
PUBLISH AND PROVIDE AT LEAST 30 DAYS FOR PUBLIC COMMENT ON ANY PROPOSED
SETTLEMENT OF A STATE ENFORCEMENT ACTION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 194 OF 225
COSTLE DM ADMINISTRATOR
EPA
113693
REGULATIONS
(G) REQUIREMENTS FOR COMPLIANCE EVALUATION PROGRAMS. (1) A STATE
PROGRAM UNDER THIS SUBPART SHALL HAVE PROCEDURES FOR RECEIPT,
EVALUATION, RECORDKEEPING, AND INVESTIGATION FOR POSSIBLE ENFORCEMENT OF
ALL REQUIRED NOTICES AND REPORTS.
(2) A STATE PROGRAM SHALL HAVE INDEPENDENT INSPECTION AND
SURVEILLANCE AUTHORITY AND PROCEDURES TO DETERMINE COMPLIANCE OR
NONCOMPLIANCE WITH APPLICABLE PROGRAM REQUIREMENTS. THIS SHALL INCLUDE:
(I) THE CAPABILITY TO MAKE COMPREHENSIVE SURVEYS OF ANY ACTIVITIES
SUBJECT TO THE STATE DIRECTOR'S AUTHORITY IN ORDER TO IDENTIFY PERSONS
SUBJECT TO REGULATION WHO HAVE FAILED TO COMPLY WITH PROGRAM
REQUIREMENTS;
(II) A PROGRAM FOR PERIODIC INSPECTIONS OF THE ACTIVITIES SUBJECT TO
REGULATION;
(III) THE CAPABILITY TO INVESTIGATE EVIDENCE OF VIOLATIONS OF
APPLICABLE PROGRAM AND PERMIT REQUIREMENTS; AND
(IV) PROCEDURES FOR RECEIVING AND ENSURING PROPER CONSIDERATION OF
INFORMATION SUBMITTED BY THE PUBLIC ABOUT VIOLATIONS. PUBLIC EFFORT IN
REPORTING VIOLATIONS SHALL BE ENCOURAGED, AND THE STATE DIRECTOR SHALL
MAKE AVAILABLE INFORMATION ON REPORTING PROCEDURES.
(3) THE STATE OFFICERS ENGAGED IN COMPLIANCE EVALUATION ACTIVITIES
SHALL HAVE AUTHORITY TO ENTER ANY CONVEYANCE, VEHICLE, FACILITY, OR
PREMISES SUBJECT TO REGULATION OR IN WHICH RECORDS RELEVANT TO PROGRAM
OPERATION ARE KEPT IN ORDER TO INSPECT, MONITOR, OR OTHERWISE
INVESTIGATE COMPLIANCE WITH THE STATE PROGRAM. STATES WHOSE LAW
REQUIRES A SEARCH WARRANT PRIOR TO ENTRY CONFORM WITH THIS REQUIREMENT.
(4) INVESTIGATORY INSPECTIONS SHALL BE CONDUCTED, SAMPLES SHALL BE
TAKEN, AND OTHER INFORMATION SHALL BE GATHERED IN A MANNER (E.G., USING
PROPER "CHAIN OF CUSTODY" PROCEDURES) THAT WILL PRODUCE EVIDENCE
ADMISSIBLE IN AN ENFORCEMENT PROCEEDING OR IN COURT.
IN ADDITION TO THE REQUIREMENTS OF SECTION 123.128, THE FOLLOWING
REQUIREMENTS ARE APPLICABLE TO STATES APPLYING FOR INTERIM AUTHORIZATION
FOR PHASE II.
(A) STATE PROGRAMS MUST HAVE STANDARDS APPLICABLE TO HAZARDOUS WASTE
MANAGEMENT FACILITIES THAT PROVIDE SUBSTANTIALLY THE SAME DEGREE OF
HUMAN HEALTH AND ENVIRONMENTAL PROTECTION AS THE STANDARDS PROMULGATED
UNDER 40 CFR PARTS 264 AND 266.
(B) STATE PROGRAMS SHALL REQUIRE A PERMIT FOR OWNERS AND OPERATORS OF
THOSE HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES WHICH
HANDLE ANY WASTE CONTROLLED BY THE STATE UNDER SECTION 123.128(A) AND
FOR WHICH A PERMIT IS REQUIRED UNDER 40 CFR PART 122. THE STATE PROGRAM
SHALL PROHIBIT THE OPERATION OF SUCH FACILITIES WITHOUT A PERMIT,
PROVIDED STATES MAY AUTHORIZE OWNERS AND OPERATORS OF FACILITIES WHICH
WOULD QUALIFY FOR INTERIM STATUS UNDER THE FEDERAL PROGRAM (IF STATE LAW
SO AUTHORIZES) TO REMAIN IN OPERATION PENDING PERMIT ACTION. WHERE
STATE LAW AUTHORIZES SUCH CONTINUED OPERATION IT SHALL REQUIRE
COMPLIANCE BY OWNERS AND OPERATORS OF SUCH FACILITIES WITH STANDARDS
SUBSTANTIALLY EQUIVALENT TO EPA'S INTERIM STATUS STANDARDS UNDER 40 CFR
PART 265.
(C) ALL PERMITS ISSUED BY THE STATE UNDER THIS SECTION SHALL REQUIRE
COMPLIANCE WITH THE STANDARDS ADOPTED BY THE STATE IN ACCORDANCE WITH
PARAGRAPH (A) OF THIS SECTION.
(D) STATE PROGRAMS SHALL HAVE REQUIREMENTS FOR PERMITTING WHICH ARE
SUBSTANTIALLY EQUIVALENT TO THE PROVISIONS LISTED IN SECTIONS 123.7(A)
AND (B).
(E) NO PERMIT MAY BE ISSUED BY A STATE WITH INTERIM AUTHORIZATION FOR
PHASE II WITH A TERM GREATER THAN TEN YEARS.
(A) IF A WASTE IS TRANSPORTED FROM A STATE WHERE IT IS LISTED OR
DESIGNATED AS HAZARDOUS UNDER THE PROGRAM APPLICABLE IN THAT STATE,
WHETHER THAT IS THE FEDERAL PROGRAM OR AN APPROVED STATE PROGRAM, INTO A
STATE WITH INTERIM AUTHORIZATION WHERE IT IS NOT LISTED OR DESIGNATED,
THE WASTE MUST BE MANIFESTED IN ACCORDANCE WITH THE LAWS OF THE STATE
WHERE THE WASTE WAS GENERATED AND MUST BE TREATED, STORED, OR DISPOSED
OF AS REQUIRED BY THE LAWS OF THE STATE INTO WHICH IT HAS BEEN
TRANSPORTED.
(B) IF A WASTE IS TRANSPORTED FROM A STATE WITH INTERIM AUTHORIZATION
WHERE IT IS NOT LISTED OR DESIGNATED AS HAZARDOUS INTO A STATE WHERE IT
IS LISTED OR DESIGNATED AS HAZARDOUS UNDER THE PROGRAM APPLICABLE IN
THAT STATE, WHETHER THAT IS THE FEDERAL PROGRAM OR AN APPROVED STATE
PROGRAM, THE WASTE MUST BE TREATED, STORED, OR DISPOSED OF IN ACCORDANCE
WITH THE LAW APPLICABLE IN THE STATE INTO WHICH IT HAS BEEN TRANSPORTED.
(C) IN ALL CASES OF INTERSTATE MOVEMENT OF HAZARDOUS WASTE, AS
DEFINED BY 40 CFR PART 261, GENERATORS AND TRANSPORTERS MUST MEET DOT
REQUIREMENTS, IN 49 CFR PARTS 172, 173, 178, AND 179 (E.G., FOR SHIPPING
PAPER, PACKAGING, LABELING, MARKING AND PLACARDING).
THE STATE DIRECTOR SHALL SUBMIT A SEMI-ANNUAL PROGRESS REPORT TO THE
EPA. REGIONAL ADMINISTRATOR WITHIN 4 WEEKS OF THE DATE 6 MONTHS AFTER
PHASE I COMMENCES, AND AT 6-MONTH INTERVALS THEREAFTER UNTIL THE
EXPIRATION OF INTERIM AUTHORIZATION. THE REPORTS SHALL BRIEFLY
SUMMARIZE, IN A MANNER AND FORM PRESCRIBED BY THE REGIONAL
ADMINISTRATOR, THE STATE'S COMPLIANCE IN MEETING THE REQUIREMENTS OF
AUTHORIZATION PLAN, THE REASONS AND PROPOSED REMEDIES FOR ANY DELAY IN
MEETING MILESTONES, AND THE ANTICIPATED PROBLEMS AND SOLUTIONS FOR THE
NEXT REPORTING PERIOD.
(A) ANY INFORMATION OBTAINED OR USED IN THE ADMINISTRATION OF A STATE
PROGRAM SHALL BE AVAILABLE TO EPA UPON REQUEST WITHOUT RESTRICTION. IF
THE INFORMATION HAS BEEN SUBMITTED TO THE STATE UNDER A CLAIM OF
CONFIDENTIALITY, THE STATE MUST SUBMIT THAT CLAIM TO EPA WHEN PROVIDING
INFORMATION UNDER THIS SUBPART. ANY INFORMATION OBTAINED FROM A STATE
AND SUBJECT TO A CLAIM OF CONFIDENTIALITY WILL BE TREATED IN ACCORDANCE
WITH THE REGULATIONS IN 40 CFR PART 2. IF EPA OBTAINS FROM A STATE
INFORMATION THAT IS NOT CLAIMED TO BE CONFIDENTIAL, EPA MAY MAKE THAT
INFORMATION AVAILABLE TO THE PUBLIC WITHOUT FURTHER NOTICE.
(B) EPA SHALL FURNISH TO STATES WITH APPROVED PROGRAMS THE
INFORMATION IN ITS FILES NOT SUBMITTED UNDER A CLAIM OF CONFIDENTIALITY
WHICH THE STATE NEEDS IN ORDER TO IMPLEMENT ITS APPROVED PROGRAM. EPA
SHALL FURNISH TO STATES WITH APPROVED PROGRAMS INFORMATION SUBMITTED TO
EPA UNDER A CLAIM OF CONFIDENTIALITY, WHICH THE STATE NEEDS IN ORDER TO
IMPLEMENT ITS APPROVED PROGRAM, SUBJECT TO THE CONDITIONS IN 40 CFR PART
2.
(A) ISSUANCE OF STATE PERMITS UNDER THIS PART MAY BE COORDINATED, AS
PROVIDED IN PART 124, WITH ISSUANCE OF NPDES, 404, AND UIC PERMITS
WHETHER THEY ARE CONTROLLED BY THE STATE, EPA, OR THE CORPS OF
ENGINEERS.
(B) THE STATE DIRECTOR OF ANY APPROVED PROGRAM WHICH MAY AFFECT THE
PLANNING FOR AND DEVELOPMENT OF HAZARDOUS WASTE MANAGEMENT FACILITIES
AND PRACTICES SHALL CONSULT AND COORDINATE WITH AGENCIES DESIGNATED
UNDER SECTION 4006(B) OF RCRA (40 CFR PART 255) AS RESPONSIBLE FOR THE
DEVELOPMENT AND IMPLEMENTATION OF STATE SOLID WASTE MANAGEMENT PLANS
UNDER SECTION 4002(B) OF RCRA (40 CFR PART 256).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 195 OF 225
COSTLE DM ADMINISTRATOR
EPA
113694
REGULATIONS
(A) THE REGIONAL ADMINISTRATOR MAY COMMENT ON PERMIT APPLICATIONS AND
DRAFT PERMITS AS PROVIDED IN THE MEMORANDUM OF AGREEMENT UNDER SECTION
123.126.
(B) WHERE EPA INDICATES, IN A COMMENT, THAT ISSUANCE OF THE APPROVED
STATE PROGRAM, EPA SHALL INCLUDE IN THE COMMENT;
(1) A STATEMENT OF THE REASONS FOR THE COMMENT (INCLUDING THE SECTION
OF RCRA OR REGULATIONS PROMULGATED THEREUNDER THAT SUPPORT THE COMMENT);
AND
(2) THE ACTIONS THAT SHOULD BE TAKEN BY THE STATE DIRECTOR IN ORDER
TO ADDRESS THE COMMENTS (INCLUDING THE CONDITIONS WHICH THE PERMIT WOULD
INCLUDE IF IT WERE ISSUED BY THE REGIONAL ADMINISTRATOR).
(C) A COPY OF ANY COMMENT SHALL BE SENT TO THE PERMIT APPLICANT BY
THE REGIONAL ADMINISTRATOR.
(D) THE REGIONAL ADMINISTRATOR SHALL WITHDRAW SUCH COMMENT WHEN
SATISFIED THAT THE STATE HAS MET OR REFUTED HIS OR HER CONCERNS.
(E) UNDER SECTION 3008(A)(3) OF RCRA, EPA MAY TERMINATE A
STATE-ISSUED PERMIT IN ACCORDANCE WITH THE PROCEDURES OF PART 124,
SUBPART E OR BRING AN ENFORCEMENT ACTION IN ACCORDANCE WITH THE
PROCEDURES OF 40 CFR PART 22 IN THE CASE OF A VIOLATION OF A STATE
PROGRAM REQUIREMENT. IN EXERCISING THESE AUTHORITIES, EPA WILL OBSERVE
THE FOLLOWING CONDITIONS.
(1) THE REGIONAL ADMINISTRATOR MAY TAKE ACTION UNDER SECTION
3008(A)(3) OF RCRA AGAINST A HOLDER OF A STATE-ISSUED PERMIT AT ANY TIME
ON THE GROUND THAT THE PERMITTEE IS NOT COMPLYING WITH A CONDITION OF
THAT PERMIT.
(2) THE REGIONAL ADMINISTRATOR MAY TAKE ACTION UNDER SECTION
3008(A)(3) OF RCRA AGAINST A HOLDER OF A STATE-ISSUED PERMIT AT ANY TIME
ON THE GROUND THAT THE PERMITTEE IS NOT COMPLYING WITH A CONDITION THAT
THE REGIONAL ADMINISTRATOR IN COMMENTING ON THE PERMIT APPLICATION OR
DRAFT PERMIT STATED WAS NECESSARY TO IMPLEMENT APPROVED STATE PROGRAM
REQUIREMENTS, WHETHER OR NOT THAT CONDITION WAS INCLUDED INTHE FINAL
PERMIT.
(3) THE REGIONAL ADMINISTRATOR MAY NOT TAKE ACTION UNDER SECTION
3008(A)(3) OF RCRA AGAINST A HOLDER OF A STATE-ISSUED PERMIT ON THE
GROUND THAT THE PERMITTEE IS NOT COMPLYING WITH A CONDITION NECESSARY TO
IMPLEMENT APPROVED STATE PROGRAM REQUIREMENTS UNLESS THE REGIONAL
ADMINISTRATOR STATED IN COMMENTING ON THE PERMIT APPLICATION OR DRAFT
PERMIT THAT THAT CONDITION WAS NECESSARY.
(4) THE REGIONAL ADMINISTRATOR MAY TAKE ACTION UNDER SECTION 7003 OF
RCRA AGAINST A PERMIT HOLDER AT ANY TIME WHETHER OR NOT THE PERMIT
HOLDER IS COMPLYING WITH THE PERMIT CONDITIONS.
(A) WITHIN 30 DAYS OF RECEIPT OF A COMPLETE PROGRAM SUBMISSION FOR
INTERIM AUTHORIZATION, THE REGIONAL ADMINISTRATOR SHALL;
(1) ISSUE NOTICE IN THE FEDERAL REGISTER AND IN ACCORDANCE WITH
SECTION 123.39(A)(1) OF A PUBLIC HEARING ON THE STATE'S APPLICATION FOR
INTERIM AUTHORIZATION. SUCH PUBLIC HEARING WILL BE HELD BY EPA NO
EARLIER THAN 30 DAYS AFTER NOTICE OF THE HEARING, PROVIDED THAT IF
SIGNIFICANT PUBLIC INTEREST IN A HEARING IS NOT EXPRESSED, THE HEARING
MAY BE CNACELLED IF A STATEMENT TO THIS EFFECT IS INCLUDED IN THE PUBLIC
NOTICE. THE STATE SHALL PARTICIPATE IN ANY PUBLIC HEARING HELD BY EPA.
(2) AFFORD THE PUBLIC 30 DAYS AFTER THE NOTICE TO COMMENT ON THE
STATE'S SUBMISSION; AND
(3) NOTE THE AVAILABILITY OF THE STATE'S SUBMISSION FOR INSPECTION
AND COPYING BY THE PUBLIC. THE STATE SUBMISSION SHALL, AT A MINIMUM, BE
AVAILABLE IN THE MAIN OFFICE OF THE LEAD STATE AGENCY AND IN THE EPA
REGIONAL OFFICE.
(B) WITHIN 90 DAYS OF THE NOTICE IN THE FEDERAL REGISTER REQUIRED BY
PARAGRAPH (A)(1) OF THIS SECTION, THE ADMINISTRATOR SHALL MAKE A FINAL
DETERMINATION WHETHER OR NOT TO APPROVE THE STATE'S PROGRAM TAKING INTO
ACCOUNT ANY COMMENTS SUBMITTED. THE ADMINISTRATOR WILL GIVE NOTICE OF
THIS FINAL DETERMINATION IN THE FEDERAL REGISTER AND IN ACCORDANCE WITH
SECTION 123.39(A)(1). THE NOTIFICATION SHALL INCLUDE A CONCISE
STATEMENT OF THE REASONS FOR THIS DETERMINATION, AND A RESPONSE TO
SIGNIFICANT COMMENTS RECEIVED.
(C) WHERE A STATE HAS RECEIVED INTERIM AUTHORIZATION FOR PHASE I THE
SAME PROCEDURES REQUIRED IN PARAGRAPHS (A) AND (B) OF THIS SECTION SHALL
BE USED IN DETERMINING WHETHER THIS AMENDED PROGRAM SUBMISSION MEETS THE
REQUIREMENTS OF THE FEDERAL PROGRAM.
(A) THE CRITERIA AND PROCEDURES FOR WITHDRAWAL SET FORTH IN SECTIONS
123.14 AND 15 APPLY TO THIS SECTION.
(B) IN ADDITION TO THE CRITERIA IN SECTION 123.14, A STATE PROGRAM
MAY BE WITHDRAWN IF A STATE WHICH HAS OBTAINED INTERIM AUTHORIZATION
FAILS TO MEET THE SCHEDULE FOR OR ACCOMPLISH THE ADDITONS OR REVISIONS
OF ITS PROGRAM SET FORTH IN ITS AUTHORIZATION PLAN.
(A) A STATE PROGRAM APPROVED FOR INTERIM AUTHORIZATION FOR PHASE I
SHALL TERMINATE ON THE LAST DAY OF THE 6TH MONTH AFTER THE EFFECTIVE
DATE OF PHASE II AND EPA SHALL ADMINISTER AND ENFORCE THE FEDERAL
PROGRAM IN THE STATE COMMENCING ON THAT DATE IF THE STATE HAS FAILED TO
SUBMIT BY THAT DATE AN AMENDED SUBMISSION PURSUANT TO SECTION
123.122(C)(4).
(B) A STATE PROGRAM APPROVED FOR INTERIM AUTHORIZATION FOR PHASE I
SHALL TERMINATE AND EPA SHALL ADMINISTER AND ENFORCE THE FEDERAL PROGRAM
IN THE STATE IF THE REGIONAL ADMINISTRATOR DETERMINES PURSUANT TO
SECTION 123.135(C) THAT A PROGRAM SUBMISSION AMENDED PURSUANT TO SECTION
123.122(C)(4) DOES NOT MEET THE REQUIREMENTS OF THE FEDERAL PROGRAM.
124.1 PURPOSE AND SCOPE.
124.2 DEFINITIONS.
124.3 APPLICATION FOR A PERMIT.
124.4 CONSOLIDATION OF PERMIT PROCESSING.
124.5 MODIFICATION, REVOCATION AND REISSUANCE, OR TERMINATION OF
PERMITS.
124'6 DRAFT PERMIT.
124.7 STATEMENT OF BASIS.
124.8 FACT SHEET.
124.9 ADMINISTRATIVE RECORD FOR DRAFT PERMITS WHEN EPA IS THE
PERMITTING AUTHORITY.
124.10 PUBLIC NOTICE OF PERMIT ACTIONS AND PUBLIC COMMENT PERIOD.
124.11 PUBLIC COMMENTS AND REQUESTS FOR PUBLIC HEARINGS.
124.12 PUBLIC HEARINGS.
124.13 OBLIGATION TO RAISE ISSUES AND PROVIDE INFORMATION DURING THE
PUBLIC COMMENT PERIOD.
124.14 REOPENING OF THE PU0LIC COMMENT PERIOD.
124.15 ISSUANCE AND EFFECTIVE DATE OF PERMIT.
124.16 STAYS OF CONTESTED PERMIT CONDITIONS.
124.17 RESPONSE TO COMMENTS.
124.18 ADMINISTRATIVE RECORD FOR FINAL PERMIT WHEN EPA IS IN THE
PERMITTING AUTHORITY.
124.19 APPEAL OF RCRA, UNC AND PSD PERMITS.
124.20 COMPUTATION OF TIME.
124.21 EFFECTIVE DATE OF PART 124.
124.41 DEFINITIONS APPLICABLE TO PSD PERMITS.
124.42 ADDITIONAL PROCEDURES FOR PSD PERMITS AFFECTING CLASS I AREAS.
124.51 PURPOSE AND SCOPE.
124.52 PERMITS REQUIRED ON A CASE-BY-CASE BASIS.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 196 OF 225
COSTLE DM ADMINISTRATOR
EPA
113695
REGULATIONS
124.53 STATE CERTIFICATION.
124.54 SPECIAL PROVISIONS FOR STATE CERTIFICATION AND CONCURRENCE ON
APPLICATIONS FOR SECTION 301(H) VARIANCES.
124.55 EFFECT OF STATE CERTIFICATION.
124.56 FACT SHEETS.
124'57 PUBLIC NOTICE.
124.58 SPECIAL PROCEDURES FOR EPA-ISSUED GENERAL PERMITS FOR POIN
SOURCES OTHER THAN SEPARATE STORM SWERES.
124.59 CONDITIONS REQUESTED BY THE CORPS OF ENGINEERS AND OTHER
GOVERNMENT AGENCIES.
124.60 ISSUANCE AND EFFECTIVE DATE AND STAYS OF NPDES PERMITS.
124.61 FINAL ENVIRONMENTAL IMPACT STATEMENT'
124.62 DECISION ON VARIANCES.
124.63 PROCEDURES FOR VARIANCES WHEN EPA IS THE PERMITTING AUTHORITY.
124.64 APPEALS OF VARIANCES.
124.65 SPECIAL PROCEDURES FOR DISCHARGE INTO MARINE WATERS UNDER
SECTION 301(H).
124.66 SPECIAL PROCEDURES FOR DECISIONS ON THERMAL VARIANCES UNDER
SECTION 316(A)
124.71 APPLICABILITY
124.72 DEFINITIONS.
124.73 FILING AND SUBMISSION OF DOCUMENTS.
124.74 REQUESTS FOR EVIDENTIARY HEARING.
124.75 DECISION ON REQUEST FOR A HEARING.
124.76 OBLIGATION TO SUBMIT EVIDENCE AND RAISE ISSUES BEFORE A FINAL
PERMIT IS ISSUED.
124.77 NOTICE OF HEARING.
124.78 EX PARTE COMMUNICATIONS.
124.79 ADDITIONAL PARTIES AND ISSUES.
124.80 FILING AND SERVICE.
124.81 ASSIGNMENT OF ADMINISTRATIVE LAW JUDGE.
124.82 CONSOLIDATION AND SEVERANCE.
124.83 PREHEARING CONFERENCES.
124.84 SUMMARY DETERMINATION.
124.85 HEARING PROCEDURE.
124.86 MOTIONS.
124.87 RECORD OF HEARINGS.
124.88 PROPOSED FINDING OF FACT AND CONCLUISONS; BRIEF
124.89 DECISIONS.
124.90 INTERLOCUTORY APPEAL.
124.91 APPEAL TO THE ADMINISTRATOR.
124.111 APPLICABILITY.
124.112 REALTION TO OTHER SUBPARTS.
124.113 PUBLIC NOTICE OF DRAFT PERMITS AND PUBLIC COMMENT PERIOD.
124.114 REQUEST FOR HEARING.
124.115 EFFECT OF DENIAL OF OR ABSENCE OF REQUEST FOR HEARING.
124.116 NOTICE OF HEARING.
124.117 REQUEST TO PARTICIPATE IN HEARING.
124.118 SUBMISSION OF WRITTEN COMMENTS ON DRAFT PERMIT.
124.119 PRESIDING OFFICER.
124.120 PANEL HEARING.
124.121 OPPORTUNITY FOR CROSS-EXAMINATION.
124.122 RECORD FOR FINAL PERMIT.
124.123 FILING OF BREIF, PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW AND PROPOSED MODIFIED PERMIT.
124.124 RECOMMENDED DECISION.
124.125 APPEAL FROM OR REVIEW OF RECOMMENDED DECISION.
124.126 FINAL DECISION.
124.127 FINAL DECISION IF THERE IS NO REVIEW.
124.128 DELEGATION OF AUTHROITY; TIME LIMITATIONS.
APPENDIX A TO PART 124 -- GUIDE TO DECISIONMAKING UNDER PART 124.
AUTHORITY: RESOURCE CONSERVATION AND RECOVERY ACT, 42 U.S.C. SECTION
6901 ET SEQ; SAFE DRINKING WATER ACT, 42 U.S.C. SECTION 300( ) ET SEQ;
CLEAN WATER ACT, 33 U.S.C. SECTION 1251 ET SEQ; AND CLEAN AIR ACT, 42
U.S.C. SECTION 1857 ET SEQ.
(A) THIS PART CONTAINS EPA PROCEDURES FOR ISSUING, MODIFYING REVOKING
AND REISSUING, OR TERMINATING ALL RCRA, UIC, PSD AND NPDES "PERMITS"
OTHER THAN RCRA AND UIC "EMERGENCY PERMITS" (SEE SECTIONS 122.27 AND
122.40( AND RCRA "PERMITS BY RULE" (SECTION 122.26). THE LATTER KINDS
OF PERMITS ARE GOVERNED BY SUBPART A OF PART 122. RCRA INTERIM STATUS
AND UIC AUTHORIZATION BY RULE ARE NOT "PERMITS" AND ARE COVERED BY
SPECIFIC PROVISIONS IN SUBPART A OF PART 122. THIS PART ALSO DOES NOT
APPLY TO PERMITS ISSUED, MODIFIED, REVOKED AND REISSUED OR TERINATED BY
THE CORPS OF ENGINEERS. THOSE PROCEDURES ARE SPECIFIED IN 33 CFR PARTS
320-327.
(B) PART 124 IS ORGANIZED INTO SIX SUBPARTS. SUPBART A CONTAINS
GENERAL PROCEDURAL REQUIREMENTS APPLICABLE TO ALL PERMIT PROGRAMS
COVERED BY THESE REGULATIONS. SUBPARTS B THROUGH F SUPPLEMENT THESE
GENERAL PROVISIONS WITH REQUIREMENTS THAT APPLY TO ONLY ONE OR MORE OF
THE PROGRAMS. SUBPART A DESCRIBES THE STEPS EPA WILL FOLLOW IN
RECEIVING PERMIT APPLICATIONS, PREPARING DRAFT PERMITS, ISSUING PUBLIC,
NOTICE, INVITING PUBLIC COMMENT AND HOLDING PUBLIC HEARINGS ON DRAFT
PERMITS. SUBPART A ALSO COVERS ASSEMBLING AN ADMINISTRATIVE RECORD,
RESPONDING TO COMMENTS, ISSUING A FINAL PERMIT DECISION, AND ALLOWING
FOR ADMINISTRATIVE APPEAL OF THE FINAL PERMIT DECISION, SUBPART B IS
RESERVED FOR SPECIFIC PROCEDURAL REQUIREMENTS FOR RCRA PERMITS. THERE
ARE NONE OF THESE AT PRESENT BUT THEY MAY BE ADDED IN THE FUTURE.
SUBPART C CONTAINS DEFINITIONS AND SPECIFIC PROCEDURAL REQUIREMENTS FOR
PSD PERMITS. SUBPART D APPLIES TO NPDES PERMITS UNTIL AN EVIDENTIARY
HEARING BEGINS, WHEN SUBPART E PROCEDURES TAKE OVER FOR EPA-ISSUED NPDES
PERMITS AND EPA-TERMINATED RCRA PERMITS, SUBPARTS F, WHICH IS BASED ONDE
"INITIAL LICENSING" PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT
(APA), CAN BE USED INSTEAD OF SUBPARTS A THROUGH E IN APPROPRIATE CASES.
(C) PART 124 OFFERS AN OPPORTUNITY FOR THREE KINDS OF HEARINGS; A
PUBLIC HEARING UNDER SUBPART A, AN EVIDENTIARY HEARING UNDER SUBPART E,
AND A PANEL HEARING UNDER SUBPART E, AND A PANEL HEARING UNDER SUBPART
F. THIS CHART DESCRIBES WHEN THESE HEARINGS ARE AVAILABLE FOR EACH OF
THE FIVE PERMIT PROGRAMS.
HEARINGS AVAILABLE UNDER THIS PART
TABLE OMITTED.
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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(D) THIS PART IS DESIGNED TO ALLOW PERMITS FOR A GIVEN FACILITY UNDER
TWO OR MORE OF THE LISTED PROGRAMS TO BE PROCESSED SEARATELY OR TOGETHER
AT THE CHOICE OF THE REGIONAL ADMINISTRATOR. THIS ALLOWS EPA TO COMBINE
THE PROCESSING OF PERMITS ONLY WHEN APPROPRIATE, AND NOT NECESSARILY IN
ALL CASES. THE REGIONAL ADMINISTRATOR MAY CONSOLIDATE PERMIT PROCESSING
WHEN THE PERMIT APPLICATIONS ARE SUBMITTED, WHEN DRAFT PERMITS ARE
PREPARED, OR WHEN FINAL PERMIT DECISIONS ARE ISSUED. THIS PART ALSO
ALLOWS CONSOLIDATED PERMITS TO BE SUBJECT TO A SINGLE PUBLIC HEARING
UNDER SECTION 124.12, A SINGLE EVIDENTIARY HEARING UNDER SECTION 124.75,
OR A SINGLE NON-ADVERSARY PANEL HEARING UNDER SECTION 124.120. PERMIT
APPLICANTS MAY RECOMMEND WHETHER OR NOT THEIR APPLICATIONS SHOULD BE
CONSOLIDATED IN ANY GIVEN CASE.
(E) CERTAIN PROCEDURAL REQUIREMENTS SET FORTH IN PART 124 MUST BE
ADOPTED BY STATES IN ORDER TO GAIN EPA APPROVAL TO OPERATE RCRA. UIC,
NPDES, AND 404 PERMIT PROGRAMS. THESE REQUIREMENTS ARE LISTED IN
SECTION 123.7 AND SIGNALED BY THE FOLLOWING WORDS AT THE END OF THE
APPROPRIATE PART 124 SECTION OR PARAGRAPH HEADING (APPLICABLE TO STATE
PROGRAMS, SEE SECTION 123.7). PART 124 DOES NOT APPLY TO PSD PERMITS
ISSUED BY AN APPROVED STATE.
(F) TO COORDINATE DECISIONMAKING WHEN DIFFERENT PERMITS WILL BE
ISSUED BY EPA AND APPROVED STATE PROGRAMS, THIS PART ALLOWS APPLICATIONS
TO BE JOINTLY PROCESSED, JOIN COMMENT PERIODS AND HEARINGS TO BE HELD,
AND FINAL PERMITS TO BE ISSUED ON A COOPERATIVE BASIS WHENEVER EPA AND A
STATE AGREE TO TAKE SUCH STEPS IN GENERAL OR IN INDIVIDUAL CASES. THESE
JOINT PROCESSING AGREEMENTS MAY BE PROVIDED IN THE MEMORANDUM OF
AGREEMENT DEVELOPED UNDER SECTION 123.6.
( ) THE DEFINITIONS IN PART 122 APPLY TO THIS PART EXCEPT FOR PSD
PERMITS WHICH ARE GOVERNED BY THE DEFINITIONS IN SECTION 124.41.
(B) FOR THE PURPOSES OF PART 124, THE TERM "DIRECTOR" MEANS THE STATE
DIRECTOR OR REGIONAL ADMINISTRATOR AND IS USED WHEN THE ACCOMPANYING
PROVISION IS REQUIRED OF EPA ADMINISTERED PROGRAMS AND OF STATE PROGRAMS
UNDER SECTION 123.7. THE TERM "REGIONAL ADMINISTRATOR" IS USED WHEN THE
ACCOMPANYING PROVISION APPLIES EXCLUSIVELY TO EPA-ISSUED PERMITS AND IS
NOT APPLICABLE TO STATE PROGRAMS UNDER SECTION 123.7. WHILE STATES ARE
NOT REQUIRED TO IMPLEMENT THESE LATTER PROVISIONS, THEY ARE NOT
PRECLUDED FROM DOING SO, NOTWITHSTADNING USE OF THE TERM "REGIONAL
ADMINISTRATOR."
(C) THE TERM "FORMAL HEARING" MEANS ANY EVIDENTIARY HEARING UNDER
SUBPART E OR ANY PANEL HEARING UNDER SUBPART F BUT DOES NOT MEAN A
PUBLIC HEARING CONDUCTED UNDER SECTION 124.12.
(A) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). (1) ANY
PERSON WHO REQUIRES A PERMIT UNDER THE RCRA, UIC, NPDES OR PSD PROGRAMS
SHALL COMPLETE, SIGN AND SUBMIT TO THE DIRECTOR AN APPLICATION FOR EACH
PERMIT REQUIRED UNDER SECTIONS 122.21 (RCRA), 122.31 (UIC), 40 CFR 52.21
(PSD), AND 122.51 (NPDES). APPLICATIONS ARE NOT REQUIRED FOR RCRA
PERMITS BY RULE (SECTION 122.26), UNDERGROUND INJECTIONS AUTHORIZED BY
RULE (SECTION 122.37), NPDES GENERAL PERMITS (SECTION 122.59) AND 404
GENERAL PERMITS (SECTION 123.95).
(2) THE DIRECTOR SHALL NOT BEGIN THE PROCESSING OF A PERMIT UNTIL THE
APPLICANT HAS FULLY COMPLIED WITH THE APPLICATION REQUIREMENTS FOR THAT
PERMIT. SEE SECTIONS 122.4, 122.22 (RCRA), 122.38 (UIC), 40 CFR 52.21
(PSD), AND 122.53 (NPDES).
(3) PERMIT APPLICATIONS (EXCEPT FOR PSD PERMITS) MUST COMPLY WITH
SIGNATURE AND CERTIFICATION REQUIREMENTS OF SECTION 122.6.
(B) IN THE CASE OF A PSD PERMIT ISSUED TO A FACILITY OR ACTIVITY
WHICH 40 CFR SECTION 52.21(K) EXEMPTS FROM THE REQUIREMENTS OF SECTION
52.23(L), (N), AND (P), NO PROCEEDINGS UNDER THIS PART SHALL BE HELD TO
THE EXTENT THAT THE REGIONAL ADMINISTRATOR DETERMINES THAT PROCEEDINGS
PROVIDING THE PUBLIC WITH AT LEAST AS MUCH PARTICIPATION AS TIS PAFT IN
THE MATERIAL DETERMINATIONS INVOLVED HAVE ALREADY BEEN HELD IN THE
PROCESS OF GRANTING CONSTRUCTION APPROVAL UNDEF THE APPLICABLE STATE
IMPLEMENTATION PLAN. THE REGIONAL ADMINISTRATOR SHALL BRIEFLY DOCUMENT
THAT FINDING AND MAKE IT AVAILABLE TO ANY MEMBER OF THE PUBLIC UPON
REQUEST. THE FEGIONAL ADMINISTRATOR SHALL PRPEARE A DRAFT PERMIT UNDER
SECTION 124.6 AND FOLLOW THE APPLICABLE PROCEDURES UNDER TIS PART TO THE
EXTENT HE OR SHE IS UNABLE TO MAKE A FINDING UNDER THIS SUBPARAGRAPH.
(C) THE REGIONAL ADMINISTRATOR SHALL REVIEW FOR COMPLETENESS EVERY
APPLICATION FOR AN EPA-ISSUED PERMIT. EACH APPLICATION FOR AN
EPA-ISSUED PERMIT SUBMITTED BY A NEW HWM FACILITY, A NEW UIC INJECTION
WELL, A MAJOR PSD STATIONARY SOURCE OR MAJOR PSD MODIFICATION, OR AN
NPDES NEW SOURCE OF NPDES NE DISCHARGER SHOULD BE REVIEWED FOR
COMPLETENESS BY THE REGIONAL ADMINISTRATOR WITHIN 30 DAYS OF ITS
RECEIPT. EACH APPLICATION FOR AN EPA-ISSUED PERMIT SUBMITTED BY AN
EXISTING HWM FACILITY (BOTH PARTS A AND B OF THE APPLICATION), EXISTING
INJECTION WELL OR EXISTING NPDES SOURCE SHOULD BE REIWED FOR
COMPLETENESS WITHIN 60 DAYS OF RECEIPT. UPON COMPLETING THE REVIE, THE
REGIONAL ADMINISTRATOR SHALL NOTIFY THE APPLICANT IN WRITING WHETHER THE
APPLLICATION IS COMPLETE. IF THE APPLICATION IS INCOMPLETE, THE
REGIONAL ADMINISTRATOR SHALL LIST THE INFORMATION NECESSARY TO MAKE THE
APPLICATION COMPLETE. HEN THE APPLICATION IS FOR AN EXISTING HWM
FACILITY, AN EXISTING UIC INJECTION WELL OR AN EXISTING NPDES SOURCE,
THE REGIONAL ADMINISTRATOR SHALL SPECIFY IN THE NOTICE OF DEFFICIENCY A
DATE FOR SUBMITTING THE NECESSARY INFORMATION. THE REGIONAL
ADMINISTRATOR SHALL NOTIFY THE APPLICANT THAT THE APPLICATION IS
COMPLETED, THE REGIONAL ADMINISTRATOR MAY REQUEST ADDITIONAL INFORMATION
FROM AN APPLICANT BUT ONLY WHEN NECESSARY TO CLARIFY, MODIFY, OR
SUPPLEMENT PREVIOUSLY SUBMITTED MATERIAL. REQUESTS FOR SUCH ADDITIONAL
INFORMATION WILL NOT RENDER AN APPLICATION INCOMPLETE.
(D) IF AN APPLICANT FAILS OR REFUSES TO CORRECT DEFICIENCIES IN THE
APPLICATION, THE PERMIT MAY BE DENIED AND APPROPRIATE ENFORCEMENT
ACTIONS MAY BE TAKEN UNDER THE APPLICABLE STATUTORY PROVISION INCLUDING
RCRA SECTION 3008, SDWA SECTIONS 1423 AND 1424, CAA SECTION 167, AND CWA
SECTIONS 308, 309, 402(H), AND 402(K).
(E) IF THE REGIONAL ADMINISTRATOR DECIDES THAT A SITE VISIT IS
NECESSARY FOR ANY REASON IN CONJUNCTION WITH THE PROCESSING OF AN
APPLICATION, HE OR SHE SHALL NOTIFY THE APPLICANT AND A DATE SHALL BE
SCHEDULED.
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40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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(F) THE EFFECTIVE DATE OF AN APPLICATION IS THE DATE ON WHICH THE
REGIONAL ADMINISTRATOR NOTIFIES THE APPLICANT THAT THE APPLICATION IS
COMPLETE AS PROVIDED IN PARAGRAPH (C) OF THIS SECTION.
(G) FOR EACH APPLICATION FROM A MAJOR NEW HWM FACILITY, MAJOR NEW UIC
INJECTION WELL, MAJOR NPDES NEW SOURCE, OR MAJOR NPDES NEW DISCHARGER,
THE REGIONAL ADMINISTRATOR SHALL, NO LATER THAN THE EFFECTIVE DATE OF
THE APPLICATION, PREPARE AND MAIL TO THE APPLICANT A PROJECT DECISION
SCHEDULE. (THIS PARAGRAPH DOES NOT APPLY TO PSD PERMITS.) THE SCHEDULE
SHALL SPECIFY TARGET DATES BY WHICH THE REGIONAL ADMINISTRATOR INTENDS
TO:
(1) PREPARE A DRAFT PERMIT;
(2) GIVE PUBLIC NOTICE;
(3) COMPLETE THE PUBLIC COMMENT PERIOD, INCLUDING ANY PUBLIC HEARING;
(4) ISSUE A FINAL PERMIT; AND
(5) IN THE CASE OF AN NPDES PERMIT, COMPLETE ANY FORMAL PROCEEDINGS
UNDER SUBPARTS E OR F.
(A)(1) WHENEVER A FACILITY OR ACTIVITY REQUIRES A PERMIT UNDER MORE
THAN ONE STATUTE COVERED BY THESE REGULATIONS, PROCESSING OF TWO OR MORE
APPLICATIONS FOR THOSE PERMITS MAY BE CONSOLIDATED. THE FIRST STEP IN
CONSOLIDATION IS TO PREPARE EACH DRAFT PERMIT AT THE SAME TIME.
(2) WHENEVER DRAFT PERMITS ARE PREPARED AT THE SAME TIME, THE
STATEMENTS OF BASIS (REQUIRED UNDER SECTION 124.7 FOR EPA-ISSUED PERMITS
ONLY) OR FACT SHEETS (SECTION 124.8), ADMINISTRATIVE RECORDS (REQUIRED
UNDER SECTION 124.9 FOR EPA-ISSUED PERMITS ONLY), PUBLIC COMMENT PERIODS
(SECTION 124.10), AND ANY PUBLIC HEARINGS (SECTION 124.12) ON THOSE
PERMITS SHOULD ALSO BE CONSOLIDATED. THE FINAL PERMITS MAY BE ISSUED
TOGETHER. THEY NEED NOT BE ISSUED TOGETHER IF IN THE JUDGMENT OF THE
REGIONAL ADMINISTRATOR OR STATE DIRECTOR(S), JOINT PROCESSING WOULD
RESULT IN UNREASONABLE DELAY IN THE ISSUANCE OF ONE OR MORE PERMITS.
(B) WHENEVER AN EXISTING FACILITY OR ACTIVITY REQUIRES ADDITIONAL
PERMITS UNDER ONE OR MORE OF THE STATUTES COVERED BY THESE REGULATIONS,
THE PERMITTING AUTHORITY MAY COORDINATE THE EXPIRATION DATE(S) OF THE
NEW PERMIT(S) WITH THE EXPIRATION DATE(S) OF THE EXISTING PERMIT(S) SO
THAT ALL PERMITS EXPIRE SIMULTANEOUSLY. PROCESSING OF THE SUBSEQUENT
APPLICATONS FOR RENEWAL PERMITS MAY THEN BE CONSOLIDATED.
(C) PROCESSING OF PERMIT APPLICATIONS UNDER PARAGRAPHS (A) OR (B) OF
THIS SECTION MAY BE CONSOLIDATED AS FOLLOWS:
(1) THE DIRECTOR MAY CONSOLIDATE PERMIT PROCESSING AT HIS OR HER
DISCRETION WHENEVER A FACILITY OR ACTIVITY REQUIRES ALL PERMITS EITHER
FROM EPA OR FROM AN APPROVED STATE.
(2) THE REGIONAL ADMINISTRATOR AND THE STATE DIRECTOR(S) MAY AGREE TO
CONSOLIDATE DRAFT PERMITS WHENEVER A FACILITY OR ACTIVITY REQUIRES
PERMITS FROM BOTH EPA AND AN APPROVED STATE.
(3) PERMIT APPLICANTS MAY RECOMMEND WHETHER OR NOT THE PROCESSING OF
THEIR APPLICATIONS SHOULD BE CONSOLIDATED.
(D) WHENEVER PERMIT PROCESSING IS CONSOLIDATED AND THE REGIONAL
ADMINISTRATOR INVOKES THE "INITIAL LICENSING" PROVISIONS OF SUBPART F
FOR AN NPDES, RCRA, OR UIC PERMIT, ANY PERMIT(S) WITH WHICH THAT NPDES,
RCRA OR UIC PERMIT WAS CONSOLIDATED SHALL LIKEWISE BE PROCESSED UNDER
SUBPART F.
(E) EXCEPT WITH THE WRITTEN CONSENT OF THE PERMIT APPLICANT, THE
REGIONAL ADMINISTRATOR SHALL NOT CONSOLIDATE PROCESSING A PSD PERMIT
WITH ANY OTHER PERMIT UNDER PARAGRAPHS (A) OR (B) OF THIS SECTION OR
PROCESS A PSD PERMIT UNDER SUBPART F AS PROVIDED IN PARAGRAPH (D) OF
THIS SECTION WHEN TO DO SO WOULD DELAY ISSUANCE OF THE PSD PERMIT MORE
THAN ONE YEAR FROM THE EFFECTIVE DATE OF THE APPLICATION UNDER SECTION
124.3(F).
(A) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). PERMITS
(OTHER THAN PSD PERMITS) MAY BE MODIFIED, REVOKED AND REISSUED, OR
TERMINATED EITHER AT THE REQUEST OF ANY INTERESTED PERSON (INCLUDING THE
PERMITTEE) OR UPON THE DIRECTOR'S INITIATIVE. HOWEVER, PERMITS MAY ONLY
BE MODIFIED, REVOKED AND REISSUED, OR TERMINATED FOR THE REASONS
SPECIFIED IN SECTIONS 122.15 OR 122.16. ALL REQUESTS SHALL BE IN
WRITING AND SHALL CONTAIN FACTS OR REASONS SUPPORTING THE REQUEST.
(B) IF THE DIRECTOR DECIDES THE REQUEST IS NOT JUSTIFIED, HE OR SHE
SHALL SEND THE REQUESTER A BRIEF WRITTEN RESPONSE GIVING A REASON FOR
THE DECISION. DENIALS OF REQUESTS FOR MODIFICATION, REVOCATION AND
REISSUANCE, OR TERMINATION ARE NOT SUBJECT TO PUBLIC NOTICE, COMMENT, OR
HEARINGS. DENIALS BY THE REGIONAL ADMINISTRATOR MAY BE INFORMALLY
APPEALED TO THE ADMINISTRATOR BY A LETTER BRIEFLY SETTING FORTH THE
RELEVANT FACTS. THE ADMINISTRATOR MAY DIRECT THE REGIONAL ADMINISTRATOR
TO BEGIN MODIFICATION, REVOCATION AND REISSUANCE, OR TERMINATION
PROCEEDINGS UNDER PARAGRAPH (C) OF THIS SECTION. THE APPEAL SHALL BE
CONSIDERED DENIED IF THE ADMINISTRATOR TAKES NO ACTION ON THE LETTER
WITHIN 60 DAYS AFTER RECEIVING IT. THIS INFORMAL APPEAL IS, UNDER 5
U.S.C. SECTION 704, A PREREQUISITE TO SEEKING JUDICIAL REVIEW OF EPA
ACTION IN DENYING A REQUEST FOR MODIFICATION, REVOCATION AND REISSUANCE,
OR TERMINATION.
(C) APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). (1) IF THE
DIRECTOR TENTATIVELY DECIDES TO MODIFY OR REVOKE AND REISSUE A PERMIT
UNDER SECTION 122.15, HE OR SHE SHALL PREPARE A DRAFT PERMIT UNDER
SECTION 124.6 INCORPORATING THE PROPOSED CHANGES. THE DIRECTOR MAY
REQUEST ADDITIONAL INFORMATION AND, IN THE CASE OF A MODIFIED PERMIT,
MAY REQUIRE THE SUBMISSION OF AN UPDATED PERMIT APPLICATION. IN THE
CASE OF REVOKED AND REISSUED PERMITS, THE DIRECTOR SHALL REQUIRE THE
SUBMISSION OF A NEW APPLICATION.
(2) IN A PERMIT MODIFICATION UNDER THIS SECTION, ONLY THOSE
CONDITIONS TO BE MODIFIED SHALL BE REOPENED WHEN A NEW DRAFT PERMIT IS
PREPARED. ALL OTHER ASPECTS OF THE EXISTING PERMIT SHALL REMAIN IN
EFFECT FOR THE DURATION OF THE UNMODIFIED PERMIT. WHEN A PERMIT IS
REVOKED AND REISSUED UNDER THIS SECTION, THE ENTIRE PERMIT IS REOPENED
JUST AS IF THE PERMIT HAD EXPIRED AND WAS BEING REISSUED. DURING ANY
REVOCATION AND REISSUANCE PROCEEDING THE PERMITTEE SHALL COMPLY WITH ALL
CONDITIONS OF THE EXISTING PERMIT UNTIL A NEW FINAL PERMIT IS REISSUED.
(3) "MINOR MODIFICATIONS" AS DEFINED IN SECTION 122.17 ARE NOT
SUBJECT TO THE REQUIREMENTS OF THIS SECTION.
(D) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). IF THE
DIRECTOR TENTATIVELY DECIDES TO TERMINATE A PERMIT UNDER SECTION 122.16,
HE OR SHE SHALL ISSUE A NOTICE OF INTENT TO TERMINATE. A NOTICE OF
INTENT TO TERMINATE IS A TYPE OF DRAFT PERMIT WHICH FOLLOWS THE SAME
PROCEDURES AS ANY DRAFT PERMIT PREPARED UNDER SECTION 124.6. IN THE
CASE OF EPA-ISSUED PERMITS, A NOTICE OF INTENT TO TERMINATE SHALL NOT BE
ISSUED IF THE REGIONAL ADMINISTRATOR AND THE PERMITTEE AGREE TO
TERMINATION IN THE COURSE OF TRANSFERRING PERMIT RESPONSIBILITY TO AN
APPROVED STATE UNDER SECTION 123.6(B)(1).
(E) WHEN EPA IS THE PERMITTING AUTHORITY, ALL DRAFT PERMITS
(INCLUDING NOTICES OF INTENT TO TERMINATE) PREPARED UNDER THIS SECTION
SHALL BE BASED ON THE ADMINISTRATIVE RECORD AS DEFINED IN SECTION 124.9.
(F) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). ANY REQUEST
BY THE PERMITTEE FOR MODIFICATION TO AN EXISTING 404 PERMIT (OTHER THAN
A REQUEST FOR A MINOR MODIFICATION AS DEFINED IN SECTION 122.17) SHALL
BE TREATED AS A PERMIT APPLICATION AND SHALL BE PROCESSED IN ACCORDANCE
WITH ALL REQUIREMENTS OF SECTION 124.3.
(G)(1) (RESERVED FOR PSD MODIFICATION PROVISIONS)
(2) PSD PERMITS MAY BE TERMINATED ONLY BY RESCISSION UNDER SECTION
52.21(W) OR BY AUTOMATIC EXPIRATION UNDER SECTION 52.21(S).
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EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
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EPA
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REGULATIONS
APPLICATIONS FOR RESCISSION SHALL BE PROCESSED UNDER SECTION 52.21(W)
AND ARE NOT SUBJECT TO THIS PART.
(A) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). ONCE AN
APPLICATION IS COMPLETE, THE DIRECTOR SHALL TENTATIVELY DECIDE WHETHER
TO PREPARE A DRAFT PERMIT (EXCEPT IN THE CASE OF STATE SECTION 404
PERMITS FOR WHICH NO DRAFT PERMIT IS REQUIRED UNDER SECTION 123.100) OR
TO DENY THE APPLICATION.
(B) IF THE DIRECTOR TENTATIVELY DECIDES TO DENY THE PERMIT
APPLICATION, HE OR SHE SHALL ISSUE A NOTICE OF INTENT TO DENY. A NOTICE
OF INTENT TO DENY THE PERMIT APPLICATION IS A TYPE OF DRAFT PERMIT WHICH
FOLLOWS THE SAME PROCEDURES AS ANY DRAFT PERMIT PREPARED UNDER THIS
SECTION. SEE SECTION 124.6(E). IF THE DIRECTOR'S FINAL DECISION
(SECTION 124.15) IS THAT THE TENTATIVE DECISION TO DENY THE PERMIT
APPLICATION WAS INCORRECT, HE OR SHE SHALL WITHDRAW THE NOTICE OF INTENT
TO DENY AND PROCEED TO PREPARE A DRAFT PERMIT UNDER PARAGRAPH (D) OF
THIS SECTION.
(C) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). IF THE
DIRECTOR TENTATIVELY DECIDES TO ISSUE AN NPDES OR 404 GENERAL PERMIT, HE
OR SHE SHALL PREPARE A DRAFT GENERAL PERMIT UNDER PARAGRAPH (D) OF THIS
SECTION.
(D) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). IF THE
DIRECTOR DECIDES TO PREPARE A DRAFT PERMIT, HE OR SHE SHALL PREPARE A
DRAFT PERMIT THAT CONTAINS THE FOLLOWING INFORMATION:
(1) ALL CONDITIONS UNDER SECTIONS 122.7 AND 122.8 (EXCEPT FOR PSD
PERMITS);
(2) ALL COMPLIANCE SCHEDULES UNDER SECTION 122.10 (EXCEPT FOR PSD
PERMITS);
(3) ALL MONITORING REQUIREMENTS UNDER SECTION 122.11 (EXCEPT FOR PSD
PERMITS); AND
(4) FOR:
(I) RCRA PERMITS, STANDARDS FOR TREATMENT, STORAGE, AND/OR DISPOSAL
AND OTHER PERMIT CONDITIONS UNDER SECTION I22.28;
(II) UIC PERMITS, PERMIT CONDITIONS UNDER SECTION 122.42;
(III) PSD PERMITS, PERMIT CONDITIONS UNDER 40 CFR SECTION 52.21;
(IV) 404 PERMITS, PERMIT CONDITIONS UNDER SECTIONS 123.97 AND 123.98;
(V) NPDES PERMITS, EFFLUENT LIMITATIONS, STANDARDS, PROHIBITIONS AND
CONDITIONS UNDER SECTIONS 122.60 AND 122.61, INCLUDING WHEN APPLICABLE
ANY CONDITIONS CERTIFIED BY A STATE AGENCY UNDER SECTION 124.55, AND ALL
VARIANCES THAT ARE TO BE INCLUDED UNDER SECTION 124.63.
(E) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). ALL DRAFT
PERMITS PREPARED BY EPA UNDER THIS SECTION SHALL BE ACCOMPNAIED BY A
STATEMENT OF BASIS (SECTION 124.7) OR FACT SHEET (SECTION 124.8), AND
SHALL BE BASED ON THE ADMINISTRATIVE RECORD (SECTION 124.9), PUBLICLY
NOTICED (SECTION 124.10) AND MADE AVAILABLE FOR PUBLIC COMMENT (SECTION
124.11). THE REGIONAL ADMINISTRATOR SHALL GIVE NOTICE OF OPPORTUNITY
FOR A PUBLIC HEARING (SECTION 124.12), ISSUE A FINAL DECISION (SECTION
124.15) AND RESPOND TO COMMENTS (SECTION 124.17). FOR RCRA, UIC OR PSD
PERMITS, AN APPEAL MAY BE TAKEN UNDER SECTION 124.19 AND, FOR NPDES
PERMITS, AN APPEAL MAY BE TAKEN UNDER SECTION 124.74. DRAFT PERMITS
PREPARED BY A STATE SHALL BE ACCOMPANIED BY A FACT SHEET IF REQUIRED
UNDER SECTION 124.8.
EPA SHALL PREPARE A STATEMENT OF BASIS FOR EVERY DRAFT PERMIT FOR
WHICH A FACT SHEET UNDER SECTION 124.8 IS NOT PREPARED. THE STATEMENT
OF BASIS SHALL BRIEFLY DESCRIBE THE DERIVATION OF THE CONDITIONS OF THE
DRAFT PERMIT AND THE REASONS FOR THEM OR, IN THE CASE OF NOTICES OF
INTENT TO DENY OR TERMINATE, REASONS SUPPORTING THE TENTATIVE DECISION.
THE STATEMENT OF BASIS SHALL BE SENT TO THE APPLICANT AND, ON REQUEST,
TO ANY OTHER PERSON.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7)
(A) A FACT SHEET SHALL BE PREPARED FOR EVERY DRAFT PERMIT FOR A MAJOR
HWM, UIC, 404, OR NPDES FACILITY OR ACTIVITY, FOR EVERY 404 AND NPDES
GENERAL PERMIT (SECTIONS 123.94 AND 122.59), FOR EVERY NPDES DRAFT
PERMIT THAT INCORPORATES A VARIANCE OR REQUIRES AN EXPLANATION UNDER
SECTION 124.56(B), AND FOR EVERY DRAFT PERMIT WHICH THE DIRECTOR FINDS
IS THE SUBJECT OF WIDESPREAD PUBLIC INTEREST OR RAISES MAJOR ISSUES.
THE FACT SHEET SHALL BRIEFLY SET FORTH THE PRINCIPAL FACTS AND THE
SIGNIFICANT FACTUAL, LEGAL, METHODOLOGICAL AND POLICY QUESTIONS
CONSIDERED IN PREPARING THE DRAFT PERMIT. THE DIRECTOR SHALL SEND THIS
FACT SHEET TO THE APPLICANT AND, ON REQUEST, TO ANY OTHER PERSON.
(B) THE FACT SHEET SHALL INCLUDE, WHEN APPLICABLE:
(1) A BRIEF DESCRIPTION OF THE TYPE OF FACILITY OR ACTIVITY WHICH IS
THE SUBJECT OF THE DRAFT PERMIT;
(2) THE TYPE AND QUANTITY OF WASTES, FLUIDS, OR POLLUTANTS WHICH ARE
PROPOSED TO BE OR ARE BEING TREATED, STORED, DISPOSED OF, INJECTED,
EMITTED, OR DISCHARGED.
(3) FOR A PSD PERMIT, THE DEGREE OF INCREMENT CONSUMPTION EXPECTED TO
RESULT FROM OPERATION OF THE FACILITY OR ACTIVITY.
(4) A BRIEF SUMMARY OF THE BASIS FOR THE DRAFT PERMIT CONDITIONS
INCLUDING REFERENCES TO APPLICABLE STATUTORY OR REGULATORY PROVISIONS
AND APPROPRIATE SUPPORTING REFERENCES TO THE ADMINISTRATIVE RECORD
REQUIRED BY SECTION 124.9 (FOR EPA-ISSUED PERMITS);
(5) REASONS WHY ANY REQUESTED VARIANCES OR ALTERNATIVES TO REQUIRED
STANDARDS DO OR DO NOT APPEAR JUSTIFIED;
(6) A DESCRIPTION OF THE PROCEDURES FOR REACHING A FINAL DECISION ON
THE DRAFT PERMIT INCLUDING;
(I) THE BEGINNING AND ENDING DATES OF THE COMMENT PERIOD UNDER
SECTION 124.10 AND THE ADDRESS WHERE COMMENTS WILL BE RECEIVED;
(II) PROCEDURES FOR REQUESTING A HEARING AND THE NATURE OF THAT
HEARING; AND
(III) ANY OTHER PROCEDURES BY WHICH THE PUBLIC MAY PARTICIPATE IN THE
FINAL DECISION.
(7) NAME AND TELEPHONE NUMBER OF A PERSON TO CONTACT FOR ADDITIONAL
INFORMATION.
(8) FOR NPDES PERMITS, PROVISIONS SATISFYING THE REQUIREMENTS OF
SECTION 124.56.
(A) THE PROVISIONS OF A DRAFT PERMIT PREPARED BY EPA UNDER SECTION
124.6 SHALL BE BASED ON THE ADMINISTRATIVE RECORD DEFINED IN THIS
SECTION.
(B) FOR PREPARING A DRAFT PERMIT UNDER SECTION 124.6, THE RECORD
SHALL CONSIST OF:
(1) THE APPLICATION, IF REQUIRED, AND ANY SUPPORTING DATA FURNISHED
BY THE APPLICANT;
(2) THE DRAFT PERMIT OR NOTICE OF INTENT TO DENY THE APPLICATION OR
TO TERMINATE THE PERMIT;
(3) THE STATEMENT OF BASIS (SECTION 124.7) OR FACT SHEET (SECTION
124.8);
(4) ALL DOCUMENTS CITED IN THE STATEMENT OF BASIS OR FACT SHEET; AND
(5) OTHER DOCUMENTS CONTAINED IN THE SUPPORTING FILE FOR THE DRAFT
PERMIT.
(6) FOR NPDES NEW SOURCE DRAFT PERMITS ONLY, ANY ENVIRONMENTAL
ASSESSMENT, ENVIRONMENTAL IMPACT STATEMENT (EIS), FINDING OF NO
SGNIFICANT IMPACT, OR ENVIRONMENTAL INFORMATION DOCUMENT AND ANY
SUPPLEMENT TO AN EIS THAT MAY HAVE BEEN PREPARED. NPDES PERMITS OTHER
THAN PERMITS TO NEW SOURCES AS WELL AS ALL RCRA, UIC AND PSD PERMITS ARE
NOT SUBJECT TO THE ENVIRONMENTAL IMPACT STATEMENT PROVISIONS OF SECTION
102(2)(C) OF THE NATIONAL ENVIRONMENTAL POLICY ACT, 42 U.S.C. 4321.
(C) MATERIAL READILY AVAILABLE AT THE ISSUING REGIONAL OFFICE OR
PUBLISHED MATERIAL THAT IS GENERALLY AVAILABLE, AND THAT IS INCLUDED IN
THE ADMINISTRATIVE RECORD UNDER PARAGRAPHS (B) AND (C) OF THIS SECTION,
NEED NOT BE PHYSICALLY INCLUDED WITH THE REST OF THE RECORD AS LONG AS
IT IS SPECIFICALLY REFERRED TO IN THE STATEMENT OF BASIS OR THE FACT
SHEET.
(D) THIS SECTION APPLIES TO ALL DRAFT PERMITS WHEN PUBLIC NOTICE WAS
GIVEN AFTER THE EFFECTIVE DATE OF THESE REGULATIONS.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 200 OF 225
COSTLE DM ADMINISTRATOR
EPA
113699
REGULATIONS
AND PUBLIC COMMENT PERIOD.
(A) SCOPE.
(1) THE DIRECTOR SHALL GIVE PUBLIC NOTICE THAT THE FOLLOWING ACTIONS
HAVE OCCURRED:
(I) A PERMIT APPLICATION HAS BEEN TENTATIVELY DENIED UNDER SECTION
124.6(B);
(II) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). A DRAFT
PERMIT HAS BEEN PREPARED UNDER SECTION 124.6(D);
(III) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). A HEARING
HAS BEEN SCHEDULED UNDER SECTION 124.12, SUBPART E, OR SUBPART F;
(IV) AN APPEAL HAS BEEN GRANTED UNDER SECTION 124.19(C);
(V) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). A STATE
SECTION 404 APPLICATION HAS BEEN RECEIVED IN CASES WHEN NO DRAFT PERMIT
WILL BE PREPARED (SEE SECTION 123.100); OR
(VI) AN NPDES NEW SOURCE DETERMINATION HAS BEEN MADE UNDER SECTION
122.66.
(2) NO PUBLIC NOTICE IS REQUIRED WHEN A REQUEST FOR PERMIT
MODIFICATION, REVOCATION, AND REISSUANCE, OR TERMINATION IS DENIED UNDER
SECTION 124.5(B). WRITTEN NOTICE OF THAT DENIAL SHALL BE GIVEN TO THE
REQUESTER AND TO THE PERMITTEE.
(3) PUBLIC NOTICE MAY DESCRIBE MORE THAN ONE PERMIT OR PERMIT ACTION.
(B) TIMING (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). (1)
PUBLIC NOTICE OF THE PREPARATION OF A DRAFT PERMIT (INCLUDING A NOTICE
OF INTENT TO DENY A PERMIT APPLICATION) REQUIRED UNDER PARAGRAPH (A) OF
THIS SECTION SHALL ALLOW AT LEASTE 30 DAYS FOR PUBLIC COMMENT. FOR
EPA-ISSUED PERMITS, IF THE REGIONAL ADMINISTRATOR DETERMINES UNDER 40
CFR PART 6, SUBPART F THAT AN ENVIRONMENTAL IMPACT STATEMENT (EIS) SHALL
BE PREPARED FOR AN NPDES NEW SOURCE, PUBLIC NOTICE OF THE DRAFT PERMIT
SHALL NOT BE GIVEN UNTIL AFTER A DRAFT EIS IS ISSUED.
(2) PUBLIC NOTICE OF A PUBLIC HEARING SHALL BE GIVEN AT LEAST 30 DAYS
BEFORE THE HEARING. (PUBLIC NOTICE OF THE HEARING MAY BE GIVEN AT THE
SAME TIME AS PUBLIC NOTICE OF THE DRAFT PERMIT AND THE TWO NOTICES MAY
BE COMBINED.)
(C) METHODS (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7).
PUBLIC NOTICE OF ACTIVITIES DESCRIBED IN PARAGRAPH (A)(1) OF THIS
SECTION SHALL BE GIVEN BY THE FOLLOWING METHODS:
(1) BY MAILING A COPY OF A NOTICE TO THE FOLLOWING PERSONS (ANY
PERSON OTHERWISE ENTITLED TO RECEIVE NOTICE UNDER THIS PARAGRAPH MAY
WAIVE HIS OR HER RIGHTS TO RECEIVE NOTICE FOR ANY CLASSES AND CATEGORIES
OF PERMITS):
(I) THE APPLICANT (EXCEPT FOR NPDES AND 404 GENERAL PERMITS WHEN
THERE IS NO APPLICANT);
(II) ANY OTHER AGENCY WHICH THE DIRECTOR KNOWS HAS ISSUED OR IS
REQUIRED TO ISSUE A RCRA, UIC, PSD, NPDES OR 404 PERMIT FOR THE SAME
FACILITY OR ACTIVITY (INCLUDING EPA WHEN THE DRAFT PERMIT IS PREPARED BY
THE STATE);
(III) FEDERAL AND STATE AGENCIES WITH JURISDICTION OVER FISH,
SHELLFISH, AND WILDLIFE RESOURCES AND OVER COASTAL ZONE MANAGEMENT
PLANS, THE ADVISORY COUNCIL ON HISTORIC PRESERVATION, STATE HISTORIC
PRESERVATION OFFICERS, AND OTHER APPROPRIATE GOVERNMENT AUTHORITIES,
INCLUDING ANY AFFECTED STATES;
(IV) FOR NPDES AND 404 PERMITS ONLY, ANY STATE AGENCY RESPONSIBLE FOR
PLAN DEVELOPMENT UNDER CWA SECTION 208(B)(2), 208(B)(4) OR 303(E) AND
THE U.S. ARMY CORPS OF ENGINEERS, THE U.S. FISH AND WILDLIFE SERVICE AND
THE NATIONAL MARINE FISHERIES SERVICE;
(V) FOR NPDES PERMITS ONLY, ANY USER IDENTIFIED IN THE PERMIT,
APPLICATION OF A PRIVATELY OWNED TREATMENT WORKS;
(VI) FOR 404 PERMITS ONLY, ANY REASONABLY ASCERTAINABLE OWNER OF
PROPERTY ADJACENT TO THE REGULATED FACILITY OR ACTIVITY AND THE REGIONAL
DIRECTOR OF THE FEDERAL AVIATION ADMINISTRATION IF THE DISCHARGE
INVOLVES THE CONSTRUCTION OF STRUCTURES WHICH MAY AFFECT AIRCRAFT
OPERATIONS OR FOR PURPOSES ASSOCIATED WITH SEAPLANE OPERATIONS;
(VII) FOR PSD PERMITS ONLY, AFFECTED STATE AND LOCAL AIR POLLUTION
CONTROL AGENCIES, THE CHIEF EXECUTIVES OF THE CITY AND COUNTY WHERE THE
MAJOR STATIONARY SOURCE OR MAJOR MODIFICATION WOULD BE LOCATED, ANY
COMPREHENSIVE REGIONAL LAND USE PLANNING AGENCY AND ANY STATE, FEDERAL
LAND MANAGER, OR INDIAN GOVERNING BODY WHOSE LANDS MAY BE AFFECTED BY
EMISSIONS FROM THE REGULATED ACTIVITY;
(VIII) PERSONS ON A MAILING LIST DEVELOPED BY:
(A) INCLUDING THOSE WHO REQUEST IN WRITING TO BE ON THE LIST;
(B) SOLICITING PERSONS FOR "AREA LISTS" FROM PARTICIPANTS IN PAST
PERMIT PROCEEDINGS IN THAT AREA; AND
(C) NOTIFYING THE PUBLIC OF THE OPPORTUNITY TO BE PUT ON THE MAILING
LIST THROUGH PERIODIC PUBLICATION IN THE PUBLIC PRESS AND IN SUCH
PUBLICATIONS AS REGIONAL AND STATE FUNDED NEWSLETTERS, ENVIRONMENTAL
BULLETINS, OR STATE LAW JOURNALS. (THE DIRECTOR MAY UPDATE THE MAILING
LIST FROM TIME TO TIME BY REQUESTING WRITTEN INDICATION OF CONTINUTED
INTEREST FROM THOSE LISTED. THE DIRECTOR MAY DELETE FROM THE LIST THE
NAME OF ANY PERSON WHO FAILS TO RESPOND TO SUCH A REQUEST.)
(2) FOR MAJOR PERMITS AND NPDES AND 404 GENERAL PERMITS, PUBLICATION
OF A NOTICE IN A DAILY OR WEEKLY NEWSPAPER WITHIN THE AREA AFFECTED BY
THE FACILITY OR ACTIVITY; AND FOR EPA-ISSUED NPDES GENERAL PERMITS, IN
THE FEDERAL REGISTER;
(NOTE. - THE DIRECTOR IS ENCOURAGED TO PROVIDE AS MUCH NOTICE AS
POSSIBLE OF THE NPDES OR 404 DRAFT GENERAL PERMIT TO THE FACILITIES OR
ACTIVITIES TO BE COVERED BY THE GENERAL PERMIT.)
(3) WHEN THE PROGRAM IS GEING ADMINISTERED BY AN APPROVED STATE, IN A
MANNER CONSTITUTING LEGAL NOTICE TO THE PUBLIC UNDER STATE LAW; AND
(4) ANY OTHER METHOD REASONABLY CALCULATED TO GIVE ACTUAL NOTICE OF
THE ACTION IN QUESTION TO THE PERSONS POTENTIALLY AFFECTED BY IT,
INCLUDING PRESS RELEASES OR ANY OTHER FORUM OR MEDIUM TO ELICIT PUBLIC
PARTICIPATION.
(D) CONTENTS (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). (1)
ALL PUBLIC NOTICES. ALL PUBLIC NOTICES ISSUED UNDER THIS PART SHALL
CONTAIN THE FOLLOWING MINIMUM INFORMATION:
(I) NAME AND ADDRESS OF THE OFFICE PROCESSING THE PERMIT ACTION FOR
WHICH NOTICE IS BEING GIVEN;
(II) NAME AND ADDRESS OF THE PERMITTEE OR PERMIT APPLICANT AND, IF
DIFFERENT, OF THE FACILITY OR ACTIVITY REGULATED BY THE PERMIT, EXCEPT
IN THE CASE OF NPDES AND 404 DRAFT GENERAL PERMITS UNDER SECTIONS 122.59
AND 123.95;
(III) A BRIEF DESCRIPTION OF THE BUSINESS CONDUCTED AT THE FACILITY
OR ACTIVITY DESCRIBED IN THE PERMIT APPLICATION OR THE DRAFT PERMIT, FOR
NPDES OR 404 GENERAL PERMITS WHEN THERE IS NO APPLICATION.
(IV) NAME, ADDRESS AND TELEPHONE NUMBER OF A PERSON FROM WHOM
INTERESTED PERSONS MAY OBTAIN FURTHER INFORMATION, INCLUDING COPIES OF
THE DRAFT PERMIT OR DRAFT GENERAL PERMIT, AS THE CASE MAY BE, STATEMENT
OF BASIS OR FACT SHEET, AND THE APPLICATION; AND
(V) A BRIEF DESCRIPTION OF THE COMMENT PROCEDURES REQUIRED BY
SECTIONS 124.11 AND 124.12 AND THE TIME AND PLACE OF ANY HEARING THAT
WILL BE HELD, INCLUDING A STATEMENT OF PROCEDURES TO REQUEST A HEARING
(UNLESS A HEARING HAS ALREADY BEEN SCHEDULED) AND OTHER PROCEDURES BY
WHICH THE PUBLIC MAY PARTICIPATE IN THE FINAL PERMIT DECISION.
(VI) FOR EPA-ISSUED PERMITS, THE LOCATION OF THE ADMINISTRATIVE
RECORD REQUIRED BY SECTION 124.9, THE TIMES AT WHICH THE RECORD WILL BE
OPEN FOR PUBLIC INSPECTION, AND A STATEMENT THAT ALL DATA SUBMITTED BY
THE APPLICANT IS AVAILABLE AS PART OF THE ADMINISTRATIVE RECORD.
(VII) FOR NPDES PERMITS ONLY, A GENERAL DESCRIPTION OF THE LOCATION
OF EACH EXISTING OR PROPOSED DISCHARGE POINT AND THE NAME OF THE
RECEIVING WATER. FOR DRAFT GENERAL PERMITS, THIS REQUIREMENT WILL BE
SATISFIED BY A MAP OR DESCRIPTION OF THE PERMIT AREA.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 201 OF 225
COSTLE DM ADMINISTRATOR
EPA
113700
REGULATIONS
FOR EPA-ISSUED NPDES PERMITS ONLY, IF THE DISCHARGE IS FROM A NEW
SOURCE, A STATEMENT AS TO WHETHER AN ENVIRONMENTAL IMPACT STATEMENT WILL
BE OR HAS BEEN PREPARED.
(VIII) FOR 404 PERMITS ONLY,
(A) THE PURPOSE OF THE PROPOSED ACTIVITY (INCLUDING, IN THE CASE OF
FILL MATERIAL, ACTIVITIES INTENDED TO BE CONDUCTED ON THE FILL), A
DESCRIPTION OF THE TYPE, COMPOSITION, AND QUANTITY OF MATERIALS TO BE
DISCHARGED AND MEANS OF CONVEYANCE; AND ANY PROPOSED CONDITIONS AND
LIMITATIONS ON THE DISCHARGE;
(B) THE NAME AND WATER QUALITY STANDARDS CLASSIFICATION, IF
APPLICABLE, OF THE RECEIVING WATERS INTO WHICH THE DISCHARGE IS
PROPOSED, AND A GENERAL DESCRIPTION OF THE SITE OF EACH PROPOSED
DISCHARGED AND THE PORTIONS OF THE SITE AND THE DISCHARGES WHICH ARE
WITHIN STATE REGULATED WATERS;
(C) A DESCRIPTION OF THE ANTICIPATED ENVIRONMENTAL EFFECTS OF
ACTIVITIES CONDUCTED UNDER THE PERMIT;
(D) REFERENCES TO APPLICABLE STATUTORY OR REGULATORY AUTHORITY; AND
(E) ANY OTHER AVAILABLE INFORMATION WHICH MAY ASSIST THE PUBLIC IN
EVALUATING THE LIKELY IMPACT OF THE PROPOSED ACTIVITY UPON THE INTEGRITY
OF THE RECEIVING WATER.
(IX) ANY ADDITIONAL INFORMATION CONSIDERED NECESSARY OR PROPER.
(2) PUBLIC NOTICES FOR HEARINGS. IN ADDITION TO THE GENERAL PUBLIC
NOTICE DESCRIBED IN PARAGRAPH (D)(1) OF THIS SECTION, THE PUBLIC NOTICE
OF A HEARING UNDER SECTION 124.12, SUBPART E, OR SUBPART F SHALL CONTAIN
THE FOLLOWING INFORMATION:
(I) REFERENCE TO THE DATE OF PREVIOUS PUBLIC NOTICES RELATING TO THE
PERMIT;
(II) DATE, TIME, AND PLACE OF THE HEARING;
(III) A BRIEF DESCRIPTION OF THE NATURE AND PURPOSE OF THE HEARING,
INCLUDING THE APPLICABLE RULES AND PROCEDURES; AND
(IV) FOR 404 PERMITS ONLY, A SUMMARY OF MAJOR ISSUES RAISED TO DATE
DURING THE PUBLIC COMMENT PERIOD.
(E) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). IN ADDITION
TO THE GENERAL PUBLIC NOTICE DESCRIBED IN PARAGRAPH (D)(1) OF THIS
SECTION, ALL PERSONS IDENTIFIED IN PARAGRAPHS (C)(1)(I), (II), (III),
AND (IV) OF THIS SECTION SHALL BE MAILED A COPY OF THE FACT SHEET OR
STATEMENT OF BASIS (FOR EPA-ISSUED PERMITS), THE PERMIT APPLICATION (IF
ANY) AND THE DRAFT PERMIT (IF ANY).
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
DURING THE PUBLIC COMMENT PERIOD PROVIDED UNDER SECTION 124.10, ANY
INTERESTED PERSON MAY SUBMIT WRITTEN COMMENTS ON THE DRAFT PERMIT OR THE
PERMIT APPLICATION FOR 404 PERMITS WHEN NO DRAFT PERMIT IS REQUIRED (SEE
SECTION 123.100) AND MAY REQUEST A PUBLIC HEARING, IF NO HEARING HAS
ALREADY BEEN SCHEDULED. A REQUEST FOR A PUBLIC HEARING SHALL BE IN
WRITING AND SHALL STATE THE NATURE OF THE ISSUES PROPOSED TO BE RAISED
IN THE HEARING. ALL COMMENTS SHALL BE CONSIDERED IN MAKING THE FINAL
DECISION AND SHALL BE ANSWERED AS PROVIDED IN SECTION 124.17.
(A) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.) THE DIRECTOR
SHALL HOLD A PUBLIC HEARING WHENEVER HE OR SHE FINDS, ON THE BASIS OF
REQUESTS, A SIGNIFICANT DEGREE OF PUBLIC INTEREST IN A DRAFT PERMIT(S).
THE DIRECTOR ALSO MAY HOLD A PUBLIC HEARING AT HIS OR HER DISCRETION,
WHENEVER, FOR INSTANCE, SUCH A HEARING MIGHT CLARIFY ONE OR MORE ISSUES
INVOLVED IN THE PERMIT DECISION. PUBLIC NOTICE OF THE HEARING SHALL BE
GIVEN AS SPECIFIED IN SECTION 124.10.
(B) WHENEVER A PUBLIC HEARING WILL BE HELD AND EPA IS THE PERMITTING
AUTHORITY, THE REGIONAL ADMINISTRATOR SHALL DESIGNATE A PRESIDING
OFFICER FOR THE HEARING WHO SHALL BE RESPONSIBLE FOR ITS SCHEDULING AND
ORDERLY CONDUCT.
(C) ANY PERSON MAY SUBMIT ORAL OR WRITTEN STATEMENTS AND DATA
CONCERNING THE DRAFT PERMIT. REASONABLE LIMITS MAY BE SET UPON THE TIME
ALLOWED FOR ORAL STATEMENTS, AND THE SUBMISSION OF STATEMENTS IN WRITING
MAY BE REQUIRED. THE PUBLIC COMMENT PERIOD UNDER SECTION 124.10 SHALL
AUTOMATICALLY BE EXTENDED TO THE CLOSE OF ANY PUBLIC HEARING UNDER THIS
SECTION. THE HEARING OFFICER MAY ALSO EXTEND THE COMMENT PERIOD BY SO
STATING AT THE HEARING.
(D) A TAPE RECORDING OR WRITTEN TRANSCRIPT OF THE HEARING SHALL BE
MADE AVAILABLE TO THE PUBLIC.
(E) AT HIS OR HER DISCRETION, THE REGIONAL ADMINISTRATOR MAY SPECIFY
THAT RCRA AND UIC PERMITS BE PROCESSED UNDER THE PROCEDURES IN SUBPART
F.
ALL PERSONS, INCLUDING APPLICANTS, WHO BELIEVE ANY CONDITION OF A
DRAFT PERMIT IS INAPPROPRIATE OR THAT THE DIRECTOR'S TENTATIVE DECISION
TO DENY AN APPLICATION, TERMINATE A PERMIT, OR PREPARE A DRAFT PERMIT IS
INAPPROPRIATE MUST RAISE ALL REASONABLY ASCERTAINABLE ISSUES AND SUBMIT
ALL REASONABLY AVAILABLE ARGUMENTS AND FACTUAL GROUNDS SUPPORTING THEIR
POSITION, INCLUDING ALL SUPPORTING MATERIAL, BY THE CLOSE OF THE PUBLIC
COMMENT PERIOD (INCLUDING ANY PUBLIC HEARING) UNDER SECTION 124.10. ALL
SUPPORTING MATERIALS SHALL BE INCLUDED IN FULL AND MAY NOT BE
INCORPORATED BY REFERENCE, UNLESS THEY ARE ALREADY PART OF THE
ADMINISTRATIVE RECORD IN THE SAME PROCEEDING, OR CONSIST OF STATE OR
FEDERAL STATUTES AND REGULATIONS, EPA DOCUMENTS OF GENERAL
APPLICABILITY, OR OTHER GENERALLY AVAILABLE REFERENCE MATERIALS.
COMMENTERS SHALL MAKE SUPPORTING MATERIAL NOT ALREADY INCLUDED IN THE
ADMINISTRATIVE RECORD AVAILABLE TO EPA AS DIRECTED BY THE REGIONAL
ADMINISTRATOR. (A COMMENT PERIOD LONGER THAN 30 DAYS WILL OFTEN BE
NECESSARY IN COMPLICATED PROCEEDINGS TO GIVE COMMENTERS A REASONABLE
OPPORTUNITY TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION. COMMENTERS
MAY REQUEST LONGER COMMENT PERIODS AND THEY SHOULD BE FREELY ESTABLISHED
UNDER SECTION 124.10 TO THE EXTENT THEY APPEAR NECESSARY.)
(A) IF ANY DATA INFORMATION OR ARGUMENTS SUBMITTED DURING THE PUBLIC
COMMENT PERIOD, INCLUDING INFORMATION OR ARGUMENTS REQUIRED UNDER
SECTION 124.13, APPEAR TO RAISE SUBSTANTIAL NEW QUESTIONS CONCERNING A
PERMIT, THE REGIONAL ADMINISTRATOR MAY TAKE ONE OR MORE OF THE FOLLOWING
ACTIONS:
(1) PREPARE A NEW DRAFT PERMIT, APPROPRIATELY MODIFIED, UNDER SECTION
124.6;
(2) PREPARE A REVISED STATEMENT OF BASIS UNDER SECTION 124.7, A FACT
SHEET OR REVISED FACT SHEET UNDER SECTION 124.8 AND REOPEN THE COMMENT
PERIOD UNDER SECTION 124.14; OR
(3) REOPEN OR EXTEND THE COMMENT PERIOD UNDER SECTION 124.10 TO GIVE
INTERESTED PERSONS AN OPPORTUNITY TO COMMENT ON THE INFORMATION OR
ARGUMENTS SUBMITTED.
(B) COMMENTS FILED DURING THE REOPENED COMMENT PERIOD SHALL BE
LIMITED TO THE SUBSTANTIAL NEW QUESTIONS THAT CAUSED ITS REOPENING. THE
PUBLIC NOTICE UNDER SECTION 124.10 SHALL DEFINE THE SCOPE OF THE
REOPENING.
(C) FOR RCRA, UIC, OR NPDES PERMITS, THE REGIONAL ADMINISTRATOR MAY
ALSO, IN THE CIRCUMSTANCES DESCRIBED ABOVE, ELECT TO HOLD FURTHER
PROCEEDINGS UNDER SUBPART F. THIS DECISION MAY BE COMBINED WITH ANY OF
THE ACTIONS ENUMERATED IN PARAGRAPH (A) OF THIS SECTION.
(D) PUBLIC NOTICE OF ANY OF THE ABOVE ACTIONS SHALL BE ISSUED UNDER
SECTION 124.10.
(A) AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD UNDER SECTION 124.10
ON A DRAFT PERMIT, THE REGIONAL ADMINISTRATOR SHALL ISSUE A FINAL PERMIT
DECISION. THE REGIONAL ADMINISTRATOR SHALL NOTIFY THE APPLICANT AND
EACH PERSON WHO HAS SUBMITTED WRITTEN COMMENTS OR REQUESTED NOTICE OF
THE FINAL PERMIT DECISION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 202 OF 225
COSTLE DM ADMINISTRATOR
EPA
113701
REGULATIONS
THIS NOTICE SHALL INCLUDE REFERENCE TO THE PROCEDURES FOR APPEALING A
DECISION ON A RCRA, UIC, OR PSD PERMIT OR FOR CONTESTING A DECISION ON
AN NPDES PERMIT OR A DECISION TO TERMINATE A RCRA PERMIT. FOR THE
PURPOSES OF THIS SECTION, A FINAL PERMIT DECISION MEANS A FINAL DECISION
TO ISSUE, DENY, MODIFY, REVOKE AND REISSUE, OR TERMINATE A PERMIT.
(B) A FINAL PERMIT DECISION SHALL BECOME EFFECTIVE 30 DAYS AFTER THE
SERVICE OF NOTICE OF THE DECISION UNDER PARAGRAPH (A) OF THIS SECTION,
UNLESS:
(1) A LATER EFFECTIVE DATE IS SPECIFIED IN THE DECISION; OR
(2) REVIEW IS REQUESTED UNDER SECTION 124.19 (RCRA, UIC, AND PSD
PERMITS) OR AN EVIDENTIARY HEARING IS REQUESTED UNDER SECTION 124.74
(NPDES PERMIT AND RCRA PERMIT TERMINATIONS); OR
(3) NO COMMENTS REQUESTED A CHANGE IN THE DRAFT PERMIT, IN WHICH CASE
THE PERMIT SHALL BECOME EFFECTIVE IMMEDIATELY UPON ISSUANCE.
(A) STAYS. (1) IF A REQUEST FOR REVIEW OF A RCRA OR UIC PERMIT UNDER
SECTION 124.19 OR AN NPDES PERMIT UNDER SECTION 124.74 OR SECTION
124.114 IS GRANTED OR IF CONDITIONS OF A RCRA OR UIC PERMIT ARE
CONSOLIDATED FOR RECONSIDERATION IN AN EVIDENTIARY HEARING ON AN NPDES
PERMIT UNDER SECTIONS 124.74, 124.82 OR 124.114, THE EFFECT OF THE
CONTESTED PERMIT CONDITIONS SHALL BE STAYED AND SHALL NOT BE SUBJECT TO
JUDICIAL REVIEW PENDING FINAL AGENCY ACTION. (NO STAY OF A PSD PERMIT
IS AVAILABLE UNDER THIS SECTION.) IF THE PERMIT INVOLVES A NEW FACILITY
OR NEW INJECTION WELL, NEW SOURCE, NEW DISCHARGER OR A RECOMMENCING
DISCHARGER, THE APPLICANT SHALL BE WITHOUT A PERMIT FOR THE PROPOSED NEW
FACILITY, INJECTION WELL, SOURCE OR DISCHARGER PENDING FINAL AGNECY
ACTION. SEE ALSO SECTION 124.60.
(2) UNCONTESTED CONDITIONS WHICH ARE NOT SEVERABLE FROM THOSE
CONTESTED SHALL BE STAYED TOGETHER WITH THE CONTESTED CONDITIONS.
STAYED PROVISIONS OF PERMITS FOR EXISTING FACILITIES, INJECTION WELLS,
AND SOURCES SHALL BE IDENTIFIED BY THE REGIONAL ADMINISTRATOR. ALL
OTHER PROVISIONS OF THE PERMIT FOR THE EXISTING FACILITY, INJECTION
WELL, OR SOURCE SHALL REMAIN FULLY EFFECTIVE AND ENFORCEABLE.
(B) STAYS BASED ON CROSS EFFECTS. (1) A STAY MAY BE GRANTED BASED ON
THE GROUNDS THAT AN APPEAL TO THE ADMINISTRATOR UNDER SECTION 124.19 OF
ONE PERMIT MAY RESULT IN CHANGES TO ANOTHER EPA-ISSUED PERMIT ONLY WHEN
EACH OF THE PERMITS INVOLVED HAS BEEN APPEALED TO THE ADMINISTRATOR AND
HE OR SHE HAS ACCEPTED EACH APPEAL.
(2) NO STAY OF AN EPA-ISSUED RCRA, UIC, OR NPDES PERMIT SHALL BE
GRANTED BASED ON THE STAYING OF ANY STATE-ISSUED PERMIT EXCEPT AT THE
DISCRETION OF THE REGIONAL ADMINISTRATOR AND ONLY UPON WRITTEN REQUEST
FROM THE STATE DIRECTOR.
(C) ANY FACILITY OR ACTIVITY HOLDING AN EXISTING PERMIT MUST:
(1) COMPLY WITH THE CONDITIONS OF THAT PERMIT DURING ANY MODIFICATION
OR REVOCATION AND REISSUANCE PROCEEDING UNDER SECTION 124.5; AND
(2) TO THE EXTENT CONDITIONS OF ANY NEW PERMIT ARE STAYED UNDER THIS
SECTION, COMPLY WITH THE CONDITIONS OF THE EXITING PERMIT WHICH
CORRESPOND TO THE STAYED CONDITIONS, UNLESS COMPLIANCE WITH THE EXISTING
CONDITIONS WOULD BE TECHNOLOGICALLY INCOMPATIBLE WITH COMPLIANCE WITH
OTHER CONDITIONS OF THE NEW PERMIT WHICH HAVE NOT BEEN STAYED.
(A) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). AT THE TIME
THAT ANY FINAL PERMIT DECISION IS ISSUED UNDER SECTION 124.15, THE
DIRECTOR SHALL ISSUE A RESPONSE TO COMMENTS. STATES ARE ONLY REQUIRED
TO ISSUE A RESPONSE TO COMMENTS WHEN A FINAL PERMIT IS ISSUED. THIS
RESPONSE SHALL:
(1) SPECIFY WHICH PROVISIONS, IF ANY, OF THE DRAFT PERMIT HAVE BEEN
CHANGED IN THE FINAL PERMIT DECISION, AND THE REASONS FOR THE CHANGE;
AND
(2) BRIEFLY DESCRIBE AND RESPOND TO ALL SIGNIFICANT COMMENTS ON THE
DRAFT PERMIT OR THE PERMIT APPLICATION (FOR SECTION 404 PERMITS ONLY)
RAISED DURING THE PUBLIC COMMENT PERIOD, OR DURING ANY HEARING.
(B) FOR EPA-ISSUED PERMITS, ANY DOCUMENTS CITED IN THE RESPONSE TO
COMMENTS SHALL BE INCLUDED IN THE ADMINISTRATIVE RECORD FOR THE FINAL
PERMIT DECISION AS DEFINED IN SECTION 124.18. IF NEW POINTS ARE RAISED
OR NEW MATERIAL SUPPLIED DURING THE PUBLIC COMMENT PERIOD, EPA MAY
DOCUMENT ITS RESPONSE TO THOSE MATTERS BY ADDING NEW MATERIALS TO THE
ADMINISTRATIVE RECORD.
(C) (APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7). THE RESPONSE
TO COMMENTS SHALL BE AVAILABLE TO THE PUBLIC.
(A) THE REGIONAL ADMINISTRATOR SHALL BASE FINAL PERMIT DECISIONS
UNDER SECTION 124.15 ON THE ADMINISTRATIVE RECORD DEFINED IN THIS
SECTION.
(B) THE ADMINISTRATIVE RECORD FOR ANY FINAL PERMIT SHALL CONSIST OF
THE ADMINISTRATIVE RECORD FOR THE DRAFT PERMIT AND:
(1) ALL COMMENTS RECEIVED DURING THE PUBLIC COMMENT PERIOD PROVIDED
UNDER SECTION 124.10 (INCLUDING ANY EXTENSION OR REOPENING UNDER SECTION
124.14);
(2) THE TAPE OR TRANSCRIPT OF ANY HEARING(S) HELD UNDER SECTION
124.12;
(3) ANY WRITTEN MATERIALS SUBMITTED AT SUCH A HEARING;
(4) THE RESPONSE TO COMMENTS REQUIRED BY SECTION 124.17 AND ANY NEW
MATERIAL PLACED IN THE RECORD UNDER THAT SECTION;
(5) FOR NPDES NEW SOURCE PERMITS ONLY, ANY FINAL ENVIRONMENTAL IMPACT
STATEMENT AND ANY SUPPLEMENT TO THE FINAL EIS;
(6) OTHER DOCUMENTS CONTAINED IN THE SUPPORTING FILE FOR THE PERMIT;
AND
(7) THE FINAL PERMIT.
(C) THE ADDITIONAL DOCUMENTS REQUIRED UNDER PARAGRAPH (B) OF THIS
SECTION SHOULD BE ADDED TO THE RECORD AS SOON AS POSSIBLE AFTER THEIR
RECEIPT OR PUBLICATION BY THE AGENCY. THE RECORD SHALL BE COMPLETE ON
THE DATE THE FINAL PERMIT IS ISSUED.
(D) THIS SECTION APPLIES TO ALL FINAL RCRA, UIC, PSD, AND NPDES
PERMITS WHEN THE DRAFT PERMIT WAS SUBJECT TO THE ADMINISTRATIVE RECORD
REQUIREMENTS OF SECTION 124.9 AND TO ALL NPDES PERMITS WHEN THE DRAFT
PERMIT WAS INCLUDED IN A PUBLIC NOTICE AFTER OCTOBER 12, 1979.
(E) MATERIAL READILY AVAILABLE AT THE ISSUING REGIONAL OFFICE, OR
PUBLISHED MATERIALS WHICH ARE GENERALLY AVAILAPLE AND WHICH ARE INCLUDED
IN THE ADMINISTRATIVE RECORD UNDER THE STANDARDS OF THIS SECTION OR OF
SECTION 124.17 ("RESPONSE TO COMMENTS"), NEED NOT BE PHYSICALLY INCLUDED
IN THE SAME FILE AS THE REST OF THE RECORD AS LONG AS IT IS SPECIFICALLY
REFERRED TO IN THE STATEMENT OF BASIS OR FACT SHEET OR IN THE RESPONSE
TO COMMENTS.
(A) WITHIN 30 DAYS AFTER A RCRA, UIC, OR PSD FINAL PERMIT DECISION
HAS BEEN ISSUED UNDER SECTION 124.15, ANY PERSON WHO FILED COMMENTS ON
THAT DRAFT PERMIT OR PARTICIPATED IN THE PUBLIC HEARING MAY PETITION THE
ADMINISTRATOR TO REVIEW ANY CONDITION OF THE PERMIT DECISION. ANY
PERSON WHO FAILED TO FILE COMMENTS OR FAILED TO PARTICIPATE IN THE
PUBLIC HEARING ON THE DRAFT PERMIT MAY PETITION FOR ADMINISTRATIVE
REVIEW ONLY TO THE EXTENT OF THE CHANGES FROM THE DRAFT TO THE FINAL
PERMIT DECISION. THE 30-DAY PERIOD WITHIN WHICH A PERSON MAY REQUEST
REVIEW UNDER THIS SECTION BEGINS WITH THE SERVICE OF NOTICE OF THE
REGIONAL ADMINISTRATOR'S ACTION UNLESS A LATER DATE IS SPECIFIED IN THAT
NOTICE. THE PETITION SHALL INCLUDE A STATEMENT OF THE REASONS
SUPPORTING THAT REVIEW, INCLUDING A DEMONSTRATION THAT ANY ISSUES BEING
RAISED WERE RAISED DURING THE PUBLIC COMMENT PERIOD (INCLUDING ANY
PUBLIC HEARING) TO THE EXTENT REQUIRED BY THESE REGULATIONS AND WHEN
APPROPRIATE, A SHOWING THAT THE CONDITION IN QUESTION IS BASED ON.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 203 OF 225
COSTLE DM ADMINISTRATOR
EPA
113702
REGULATIONS
(1) A FINDING OF FACT OR CONCLUSION OF LAW WHICH IS CLEARLY
ERRONEOUS, OR
(2) AN EXERCISE OF DISCRETION OR AN IMPORTANT POLICY CONSIDERATION
WHICH THE ADMINISTRATOR SHOULD, IN HIS OR HER DISCRETION, REVIEW.
(B) THE ADMINISTRATOR MAY ALSO DECIDE ON HIS OR HER INITIATIVE TO
REVIEW ANY CONDITION OF ANY RCRA, UIC, OR PSD PERMIT ISSUED UNDER THIS
PART. THE ADMINISTRATOR MUST ACT UNDER THIS PARAGRAPH WITHIN 30 DAYS OF
THE SERVICE DATE OF NOTICE OF THE REGIONAL ADMINISTRATOR'S ACTION.
(C) WITHIN A REASONABLE TIME FOLLOWING THE FILING OF THE PETITION FOR
REVIEW, THE ADMINISTRATOR SHALL ISSUE AN ORDER EITHER GRANTING OR
DENYING THE PETITION FOR REVIEW. TO THE EXTENT REVIEW IS DENIED, THE
CONDITIONS OF THE FINAL PERMIT DECISION BECOME FINAL AGENCY ACTION.
PUBLIC NOTICE OF ANY GRANT OR REVIEW BY THE ADMINISTRATOR UNDER
PARAGRAPH (A) OR (B) OF THIS SECTION SHALL BE GIVEN AS PROVIDED IN
SECTION 124.10. PUBLIC NOTICE SHALL SET FORTH A BRIEFING SCHEDULE FOR
THE APPEAL AND SHALL STATE THAT ANY INTERESTED PERSON MAY FILE AN AMICUS
BRIEF. NOTICE OF DENIAL OF REVIEW SHALL BE SENT ONLY TO THE PERSON(S)
REQUESTING REVIEW.
(D) THE ADMINISTRATOR MAY DEFER CONSIDERATION OF AN APPEAL OF A RCRA
OR UIC PERMIT UNDER THIS SECTION UNTIL THE COMPLETION OF FORMAL
PROCEEDINGS UNDER SUBPART E OR F RELATING TO AN NPDES PERMIT ISSUED TO
THE SAME FACILITY OR ACTIVITY UPON CONCLUDING THAT:
(1) THE NPDES PERMIT IS LIKELY TO RAISE ISSUES RELEVANT TO A DECISION
OF THE RCRA OR UIC APPEALS;
(2) THE NPDES PERMIT IS LIKELY TO BE APPEALED; AND
(3) EITHER: (I) THE INTERESTS OF BOTH THE FACILITY OR ACTIVITY AND
THE PUBLIC ARE NOT LIKELY TO BE MATERIALLY ADVERSELY AFFECTED BY THE
DEFERRAL; OR
(II) ANY ADVERSE EFFECT IS OUTWEIGHED BY THE BENEFITS LIKELY TO
RESULT FROM A CONSOLIDATED DECISION ON APPEAL.
(E) A PETITION TO THE ADMINISTRATOR UNDER PARAGRAPH (A) OF THIS
SECTION IS, UNDER 5 U.S.C. SECTION 704, A PREREQUISITE TO THE SEEKING OF
JUDICIAL REVIEW OF THE FINAL AGENCY ACTION.
(F)(1) FOR PURPOSES OF JUDICIAL REVIEW UNDER THE APPROPRIATE ACT,
FINAL AGENCY ACTION OCCURS WHEN A FINAL RCRA, UIC, OR PSD PERMIT IS
ISSUED OR DENIED BY EPA AND AGENCY REVIEW PROCEDURES ARE EXHAUSTED. A
FINAL PERMIT DECISION SHALL BE ISSUED BY THE REGIONAL ADMINISTRATOR:
(I) WHEN THE ADMINISTRATOR ISSUES NOTICE TO THE PARTIES THAT REVIEW HAS
BEEN DENIED: (II) WHEN THE ADMINISTRATOR ISSUES A DECISION ON THE
MERTIS OF THE APPEAL AND THE DECISION DOES NOT INCLUDE A REMAND OF THE
PROCEEDINGS: OR (III) UPON THE COMPLETION OF REMAND PROCEEDINGS IF THE
PROCEEDINGS ARE REMANDED, UNLESS THE ADMINISTRATOR'S REMAND ORDER
SPECIFICALLY PROVIDES THAT APPEAL OF THE REMAND DECISION WILL BE
REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES.
(2) NOTICE OF ANY FINAL AGENCY ACTION REGARDING A PSD PERMIT SHALL
PROMPTLY BE PUBLISHED IN THE FEDERAL REGISTER.
(A) ANY TIME PERIOD SCHEDULED TO BEGIN ON THE OCCURRENCE OF AN ACT OR
EVENT SHALL BEGIN ON THE DAY AFTER THE ACT OR EVENT.
(B) ANY TIME PERIOD SCHEDULED TO BEGIN BEFORE THE OCCURRENCE OF AN
ACT OR EVENT SHALL BE COMPUTED SO THAT THE PERIOD ENDS ON THE DAY BEFORE
THE ACT OR EVENT.
(C) IF THE FINAL DAY OF ANY TIME PERIOD FALLS ON A WEEKEND OR LEGAL
HOLIDAY, THE TIME PERIOD SHALL BE EXTENDED TO THE NEXT WORKING DAY.
(D) WHENEVER A PARTY OR INTERESTED PERSON HAS THE RIGHT OR IS
REQUIRED TO ACT WITHIN A PRESCRIBED PERIOD AFTER THE SERVICE OF NOTICE
OR OTHER PAPER UPON HIM OR HER BY MAIL, 3 DAYS SHALL BE ADDED TO THE
PRESCRIBED TIME.
(A) EXCEPT FOR PARAGRAPHS (B) AND (C) OF THIS SECTION, PART 124 WILL
BECOME EFFECTIVE JULY 18, 1980. BECAUSE THIS EFFECTIVE DATE WILL
PRECEDE THE PROCESSING OF ANY RCRA OR UIC PERMITS, PART 124 WILL APPLY
IN ITS ENTIRETY TO ALL RCRA AND UIC PERMITS.
(B) ALL PROVISIONS OF PART 124 PERTAINING TO THE RCRA PROGRAM WILL
BECOME EFFECTIVE ON NOVEMBER 19, 1980.
(C) ALL PROVISIONS OF PART 124 PERTAINING TO THE UIC PROGRAM WILL
BECOME EFFECTIVE JULY 18, 1980, BUT SHALL NOT BE IMPLEMENTED UNTIL THE
EFFECTIVE DATE OF 40 CFR PART 146.
(D) THIS PART DOES NOT SIGNIFICATNLY CHANGE THE WAY IN WHICH NPDES
PERMITS ARE PROCESSED. SINCE OCTOBER 12, 1979, NPDES PERMITS HAVE BEEN
THE SUBJECT TO ALMOST IDENTICAL REQUIREMENTS IN THE REVISED NPDES
REGULATIONS WHICH WERE PROMULGATED ON JUNE 7, 1979. SEE 44 FR 32948.
TO THE EXTENT THIS PART CHANGES THE REVISED NPDES PERMIT REGULATIONS,
THOSE CHANGES WILL TAKE EFFECT AS TO ALL PERMIT PROCEEDINGS IN PROGRESS
ON JULY 3, 1980.
(E) THIS PART ALSO DOES NOT SIGNIFICANTLY CHANGE THE WAY IN WHICH PSD
PERMITS ARE PROCESSED. FOR THE MOST PART, THESE REGULATIONS WILL ALSO
APPLY TO PSD PROCEEDINGS IN PROGRESS ON JULY 18, 1980. HOWEVER, BECAUSE
IT WOULD BE DISRUPTIVE TO REQUIRE RETROACTIVELY A FORMAL ADMINISTRATIVE
RECORD FOR PSD PERMITS ISSUED WITHOUT ONE. SECTIONS 124.9 AND 124.18
WILL APPLY TO PSD PERMITS FOR WHICH DRAFT PERMITS WERE PREPARED AFTER
THE EFFECTIVE DATE OF THESE REGULATIONS.
WHENEVER PSD PERMITS ARE PROCESSED UNDER THIS PART, THE FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
"ADMINISTRATOR", "EPA," AND "REGIONAL ADMINISTRATOR" SHALL HAVE THE
MEANINGS SET FORTH IN SECTION 122.3 EXCEPT WHEN EPA HAS DELEGATED
AUTHORITY TO ADMINISTER THOSE REGULATIONS TO ANOTHER AGENCY UNDER THE
APPLICABLE SUBSECTION OF CFR SECTION 52.21, THE TERM "EPA" SHALL MEAN
THE DELEGATE AGENCY AND THE TERM "REGIONAL ADMINISTRATOR" SHALL MEAN THE
CHIEF ADMINISTRATIVE OFFICER OF THE DELEGATE AGENCY.
"APPLICATION" MEANS AN APPLICATION FOR A PSD PERMIT.
"APPROPRIATE ACT AND REGULATIONS" MEANS THE CLEAN AIR ACT AND
APPLICABLE REGULATIONS PROMULGATED UNDER IT.
"APPROVED PROGRAM" MEANS A STATE IMPLEMENTATION PLAN PROVIDING FOR
ISSUANCE OF PSD PERMITS WHICH HAS BEEN APPROVED BY EPA UNDER THE CLEAN
AIR ACT AND 40 CFR PART 51. AN "APPROVED STATE" IS ONE ADMINISTERING AN
"APPROVED PROGRAM." "STATE DIRECTOR" AS USED IN SECTION 124.4 MEANS THE
PERSON(S) RESPONSIBLE FOR ISSUING PSD PERMITS UNDER AN APPROVED PROGRAM,
OR THAT PERSON'S DELEGATED REPRESENTATIVE.
"CONSTRUCTION" HAS THE MEANING GIVEN IN 40 CRF SECTION 52.21.
"DIRECTOR" MEANS THE REGIONAL ADMINISTRATOR.
"DRAFT PERMIT" SHALL HAVE THE MEANING SET FORTH IN SECTION 122.3.
"FACILITY OR ACTIVITY" MEANS A "MAJOR PSD STATIONARY SOURCE" OR
"MAJOR PSD MODIFICATION".
"FEDERAL LAND MANAGER" HAS THE MEANING GIVEN IN 40 CFR SECTION 52.21.
"INDIAN GOVERNING BODY" HAS THE MEANING GIVEN IN 40 CRF SECTION
52.21.
"MAJOR PSD MODIFICATION" MEANS A "MAJOR MODIFICATION" AS DEFINED IN
40 CFR SECTION 52.21.
"MAJOR PSD STATIONARY SOURCE" MEANS A "MAJOR STATIONARY SOURCE" AS
DEFINED IN 40 CFR SECTION 52.21(B)(1).
"OWNER OR OPERATOR" MEANS THE OWNER OR OPERATOR OF ANY FACILITY OR
ACTIVITY SUBJECT TO REGULATION UNDER 40 CFR SECTION 52.21 OR BY AN
APPROVED STATE.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 204 OF 225
COSTLE DM ADMINISTRATOR
EPA
113703
REGULATIONS
"PERMIT" OR "PSD PERMIT" MEANS A PERMIT ISSUED UNDER 40 CRF SECTION
52.21 OR BY AN APPROVED STATE.
"PERSON" INCLUDES AN INDIVIDUAL, CORPORATION, PARTNERSHIP,
ASSOCIATION, STATE, MUNICIPALITY, POLITICAL SUBDIVISION OF A STATE, AND
ANY AGENCY, DEPARTMENT, OR INSTRUMENTALITY OF THE UNITED STATES AND ANY
OFFICER, AGENT OR EMPLOYEE THEREOF.
"REGULATED ACTIVITY" OR "ACTIVITY SUBJECT TO REGULATION" MEANS A
"MAJOR PSD STATIONARY SOURCE" OR "MAJOR PSD MODIFICATION."
"SITE" MEANS THE LAND OR WATER AREA UPON WHICH A "MAJOR PSD
STATIONARY SOURCE" OR "MAJOR PSD MODIFICATION" IS PHYSICALLY LOCATED OR
CONDUCTED, INCLUDING BUT NOT LIMITED TO ADJACENT LAND USED FOR UTILITY
SYSTEMS; AS REPAIR, STORAGE, SHIPPING OR PROCESSING AREAS; OR
OTHERWISE IN CONNECTION WITH THE "MAJOR PSD STATIONARY SOURCE" OR "MAJOR
PSD MODIFICATION."
"STATE" MEANS A STATE, THE DISTRICT OF COLUMBIA, THE COMMONWEALTH
OF PUERTO RICO, THE VIRGIN ISLANDS, GUAM, AND AMERICAN SAMOA
AND INCLUDES THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS.
(A) THE REGIONAL ADMINISTRATOR SHALL PROVIDE NOTICE OF ANY PERMIT
APPLICATION FOR A PROPOSED MAJOR PSD STATIONARY SOURCE OR MAJOR PSD
MODIFICATION THE EMISSIONS FROM WHICH WOULD AFFECT A CLASS I AREA TO THE
FEDERAL LAND MANAGER, AND THE FEDERAL OFFICIAL CHARGED WITH DIRECT
RESPONSIBILITY FOR MANAGEMENT OF ANY LANDS WITHIN SUCH AREA. THE
REGIONAL ADMINISTRATOR SHALL PROVIDE SUCH NOTICE PROMPTLY AFTER
RECEIVING THE APPLICATION.
(B) ANY DEMONSTRATION WHICH THE FEDERAL LAND MANAGER WISHES TO
PRESENT UNDER 40 CFR SECTION 52.21(Q)(3), AND ANY VARIANCES SOUGHT BY AN
OWNER OR OPERATOR UNDER SECTION 52.21(Q)(4) SHALL BE REQUESTED IN
WRITING, TOGETHER WITH ANY NECESSARY SUPPORTING ANALYSIS, BY THE END OF
THE PUBLIC COMMENT PERIOD UNDER SECTIONS 124.10 OR 124.118. (40 CFR
SECTION 52.21(Q)(3) PROVIDES FOR DENIAL OF A PSD PERMIT TO A FACILITY OR
ACTIVITY WHEN THE FEDERAL LAND MANAGER DEMONSTRATES THAT ITS EMISSIONS
WOULD ADVERSELY AFFECT A CLASS I AREA EVEN THOUGH THE APPLICABLE
INCREMENTS WOULD NOT BE EXCEEDED, 40 CFR SECTION 52.21(Q)(4) CONVERSELY
AUTHORIZES EPA, WITH THE CONCURRENCE OF THE FEDERAL LAND MANAGER AND
STATE RESPONSIBLE, TO GRANT CERTAIN VARIANCES FROM THE OTHERWISE
APPLICABLE EMISSION LIMITATIONS TO A FACILITY OR ACTIVITY WHOSE
EMISSIONS WOULD AFFECT A CLASS I AREA.)
(C) VARIANCES AUTHORIZED BY 40 CFR SECTION 52.21(Q)(5) THROUGH (Q)(7)
SHALL BE HANDLED AS SPECIFIED IN THOSE SUBPARAGRAPHS AND SHALL NOT BE
SUBJECT TO THIS PART. UPON RECEIVING APPROPRIATE DOCUMENTATION OF A
VARIANCE PROPERLY GRANTED UNDER ANY OF THESE PROVISIONS, THE REGIONAL
ADMINISTRATOR SHALL ENTER THE VARIANCE IN THE ADMINISTRATIVE RECORD.
ANY DECISIONS LATER MADE IN PROCEEDINGS UNDER THIS PART CONCERNING THAT
PERMIT SHALL BE CONSISTENT WITH THE CONDITIONS OF THAT VARIANCE.
(A) THIS SUBPART SETS FORTH ADDITIONAL REQUIREMENTS AND PROCEDURES
FOR DECISIONMAKING FOR THE NPDES PROGRAM.
(B) DECISIONS ON NPDES VARIANCE REQUESTS ORDINARILY WILL BE MADE
DURING THE PERMIT ISSUANCE PROCESS. VARIANCES AND OTHER CHANGES IN
PERMIT CONDITIONS ORDINARILY WILL BE DECIDED THROUGH THE SAME
NOTICE-AND-COMMENT AND HEARING PROCEDURES AS THE BASIC PERMIT.
(A) VARIOUS SECTIONS OF PART 122, SUBPART D ALLOW THE DIRECTOR TO
DETERMINE, ON A CASE-BY-CASE BASIS, THAT CERTAIN CONCENTRATED ANIMAL
FEEDING OPERATIONS (SECTION 122.54), CONCENTRATED AQUATIC ANIMAL
PRODUCTION FACILITIES (SECTION 122.55), SEPARATE STORM SEWERS (SECTION
122.57), AND CERTAIN OTHER FACILITIES COVERED BY GENERAL PERMITS
(SECTION 122.59) THAT DO NOT GENERALLY REQUIRE AN INDIVIDUAL PERMIT MAY
BE REQUIRED TO OBTAIN AN INDIVIDUAL PERMIT BECAUSE OF THEIR CONTRIBUTION
TO WATER POLLUTION.
(B) WHENEVER THE REGIONAL ADMINISTRATOR DECIDES THAT AN INDIVIDUAL
PERMIT IS REQUIRED UNDER THIS SECTION, THE REGIONAL ADMINISTRATOR SHALL
NOTIFY THE DISCHARGER IN WRITING OF THAT DECISION AND THE REASONS FOR
IT, AND SHALL SEND AN APPLICATION FORM WITH THE NOTICE. THE DISCHARGER
MUST APPLY FOR A PERMIT UNDER SECTION 122.53 WITHIN 60 DAYS OF NOTICE.
THE QUESTION WHETHER THE INITIAL DESIGNATION WAS PROPER WILL REMAIN OPEN
FOR CONSIDERATION DURING THE PUBLIC COMMENT PERIOD UNDER SECTION 124.11
OR SECTION 124.118 AND IN ANY SUBSEQUENT HEARING.
(A) UNDER CWA SECTION 401(A)(1), EPA MAY NOT ISSUE A PERMIT UNTIL A
CERTIFICATION IS GRANTED OR WAIVED IN ACCORDANCE WITH THAT SECTION BY
THE STATE IN WHICH THE DISCHARGE ORIGINATES OR WILL ORIGINATE.
(B) APPLICATIONS RECEIVED WITHOUT A STATE CERTIFICATION SHALL BE
FORWARDED BY THE REGIONAL ADMINISTRATOR TO THE CERTIFYING STATE AGENCY
WITH A REQUEST THAT CERTIFICATION BE GRANTED OR DENIED.
(C) IF STATE CERTIFICATION HAS NOT BEEN RECEIVED BY THE TIME THE
DRAFT PERMIT IS PREPARED, THE REGIONAL ADMINISTRATOR SHALL SEND THE
CERTIFYING STATE AGENCY:
(1) A COPY OF A DRAFT PERMIT;
(2) A STATEMENT THAT EPA CANNOT ISSUE OR DENY THE PERMIT UNTIL THE
CERTIFYING STATE AGENCY HAS GRANTED OR DENIED CERTIFICATION UNDER
SECTION 124.55, OR WAIVED ITS RIGHT TO CERTIFY; AND
(3) A STATEMENT THAT THE STATE WILL BE DEEMED TO HAVE WAIVED ITS
RIGHT TO CERTIFY UNLESS THAT RIGHT IS EXERCISED WITHIN A SPECIFIED
REASONALBE TIME NOT TO EXCEED 60 DAYS FROM THE DATE THE DRAFT PERMIT IS
MAILED TO THE CERTIFYING STATE AGENCY UNLESS THE REGIONAL ADMINISTRATOR
FINDS THAT UNUSUAL CIRCUMSTANCES REQUIRE A LONGER TIME.
(D) STATE CERTIFICATION SHALL BE GRANTED OR DENIED WITHIN THE
REASONABLE TIME SPECIFIED UNDER PARAGRAPH (C)(3) OF THIS SECTION. THE
STATE SHALL SEND A NOTICE OF ITS ACTION, INCLUDING A COPY OF ANY
CERTIFICATION TO THE APPLICANT AND THE REGIONAL ADMINISTRATOR.
(E) STATE CERTIFICATION SHALL BE IN WRITING AND SHALL INCLUDE:
(1) CONDITIONS WHICH ARE NECESSARY TO ASSURE COMPLIANCE WITH THE
APPLICABLE PROVISIONS OF CWA SECTIONS 208(E), 301, 302, 303, 306, AND
307 AND WITH APPROPRIATE REQUIREMENTS OF STATE LAW;
(2) WHEN THE STATE CERTIFIES A DRAFT PERMIT INSTEAD OF A PERMIT
APPLICATION, ANY CONDITIONS MORE STRINGENT THAN THOSE IN THE DRAFT
PERMIT WHICH THE STATE FINDS NECESSARY TO MEET THE REQUIREMENTS LISTED
IN PARAGRAPH (E)(1) OF THIS SECTION. FOR EACH MORE STRINGENT CONDITION,
THE CERTIFYING STATE AGENCY SHALL CITE THE CWA OR STATE LAW REFERENCES
UPON WHICH THAT CONDITION IS BASED. FAILURE TO PROVIDE SUCH A CITATION
WAIVES THE RIGHT TO CERTIFY WITH RESPECT TO THAT CONDITION; AND
(3) A STATEMENT OF THE EXTENT TO WHICH EACH CONDITION OF THE DRAFT
PERMIT CAN BE MADE LESS STRINGENT WITHOUT VIOLATING THE REQUIREMENTS OF
STATE LAW, INCLUDING WATER QUALITY STANDARDS. FAILURE TO PROVIDE THIS
STATEMENT FOR ANY CONDITION WAIVES THE RIGHT TO CERTIFY OR OBJECT TO ANY
LESS STRINGENT CONDITION WHICH MAY BE ESTABLISHED DURING THE EPA PERMIT
ISSUANCE PROCESS.
(A) WHEN AN APPLICATION FOR A PERMIT INCORPORATING A VARIANCE REQUEST
UNDER CWA SECTION 301(H) IS SUBMITTED TO A STATE, THE APPROPRIATE STATE
OFFICIAL SHALL EITHER.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 205 OF 225
COSTLE DM ADMINISTRATOR
EPA
113704
REGULATIONS
(1) DENY THE REQUEST FOR THE CWA SECTION 301(H) VARIANCE (AND SO
NOTIFY THE APPLICANT AND EPA) AND, IF THE STATE IS AN APPROVED NPDES
STATE AND THE PERMIT IS DUE FOR REISSUANCE, PROCESS THE PERMIT
APPLICATION UNDER NORMAL PROCEDURES; OR
(2) FORWARD A CERTIFICATION MEETING THE REQUIREMENTS OF SECTION
124.53 TO THE REGIONAL ADMINISTRATOR.
(B) WHEN EPA ISSUES A TENTATIVE DECISION ON THE REQUEST FOR A
VARIANCE UNDER CWA SECTION 301(H), AND NO CERTIFICATION HAS BEEN
RECEIVED UNDER PARAGRAPH (A) OF THIS SECTION, THE REGIONAL ADMINISTRATOR
SHALL FORWARD THE TENTATIVE DECISION TO THE STATE IN ACCORDANCE WITH
SECTION 124.53(B) SEPCIFYING A REASONABLE TIME FOR STATE CERTIFCIATION
AND CONCURRENCE. IF THE STATE FAILS TO DENY OR GRANT CERTIFICATION AND
CONCURRENCE UNDER PARAGRAPH (A) OF THIS SECTION WITHIN SUCH REASONABLE
TIME, CERTIFICATION SHALL BE WAIVED AND THE STATE SHALL BE DEEMED TO
HAVE CONCURRED IN THE ISSUANCE OF A CWA SECTION 301(H) VARIANCE.
(C) ANY CERTIFICATION PROVIDED BY A STATE UNDER PARAGRAPH (A)(2) OF
THIS SECTION SHALL CONSTITUTE THE STATE'S CONCURRENCE (AS REQUIRED BY
SECTION 301(H) IN THE ISSUANCE OF THE PERMIT INCORPORATING A SECTION
301(H) VARIANCE SUBJECT TO ANY CONDITIONS SPECIFIED THEREIN BY THE
STATE. CWA SECTION 301(H) CERTIFICATION AND CONCURRENCE UNDER THIS
SECTION WILL NOT BE FORWARDED TO THE STATE BY EPA FOR RECERTIFICATION
AFTER THE PERMIT ISSUANCE PROCESS; STATES MUST SPECIFY ANY CONDITIONS
REQUIRED BY STATE LAW, INCLUDING WATER QUALITY STANDARDS, IN THE INITIAL
CERTIFICATION.
(A) WHEN CERTIFICATION IS REQUIRED UNDER CWA SECTION 401(A)(1) NO
FINAL PERMIT SHALL BE ISSUED:
(1) IF CERTIFICATION IS DENIED, OR
(2) UNLESS THE FINAL PERMIT INCORPORATES THE REQUIREMENTS SPECIFIED
IN THE CERTIFICATION UNDER SECTION 124.53(D)(1) AND (2).
(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 SECTION
124.53 MAY ISSUE A MODIFIED CERTIFICATION OR NOTICE OF WAIVER AND
FORWARD IT TO EPA. IF THE MODIFIED CERTIFICATION 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 CERTIFICATION OR NOTICE OR 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.
(C) A STATE MAY NOT CONDITION OR DENY A CERTIFICATION ON THE GROUNDS
THAT STATE LAW ALLOWS A LESS STRINGENT PERMIT CONDITION. THE REGIONAL
ADMINISTRATOR SHALL DISREGARD ANY SUCH CERTIFICATION CONDITIONS, AND
SHALL CONSIDER THOSE CONDITIONS OR DENIALS AS WAIVERS OF CERTIFICATION.
(D) A CONDITION IN A DRAFT PERMIT MAY BE CHNAGED DURING AGENCY REVIEW
IN ANY MANNER CONSISTENT WITH A CERTIFICATION MEETING THE REQUIREMENTS
OF SECTION 124.53(D). NO SUCH CHANGES SHALL REQUIRE EPA TO SUBMIT THE
PERMIT TO THE STATE FOR RECERTIFICATION.
(E) REVIEW AND APPEALS OF LIMITATIONS AND CONDITIONS ATTRIBUTABLE TO
STATE CERTIFICATION SHALL BE MADE THROUGH THE APPLICABLE PROCEDURES OF
THE STATE AND MAY NOT BE MADE THROUGH THE PROCEDURES IN THIS PART.
(F) NOTHING IN THIS SECTION SHALL AFFECT EPA'S OBLIGATION TO COMPLY
WITH SECTION 122.12. SEE CWA SECTION 301(B)(1)(C).
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
IN ADDITION TO MEETING THE REQUIREMENTS OF SECTION 124.8, NPDES FACT
SHEETS SHALL CONTAIN THE FOLLOWING:
(A) ANY CALCULATIONS OR OTHER NECESSARY EXPLANATION OF THE DERIVATION
OF SPECIFIC EFFLUENT LIMITATIONS AND CONDITIONS, INCLUDING A CITATION TO
THE APPLICABLE EFFLUENT LIMITATION GUIDELINE OR PERFORMANCE STANDARD
PROVISIONS AS REQUIRED UNDER SECTION 122.52 AND REASONS WHY THEY ARE
APPLICABLE OR AN EXPLANATION OF HOW THE ALTERNATE EFFLUENT LIMITATIONS
WERE DEVELOPED;
(B)(1) WHEN THE DRAFT PERMIT CONTAINS ANY OF THE FOLLOWING
CONDITIONS, AN EXPLANATION OF THE REASONS WHY SUCH CONDITIONS ARE
APPLICABLE;
(I) LIMITATIONS TO CONTROL TOXIC POLLUTANTS UNDER SECTION 122.62(E);
(II) LIMITATIONS ON INTERNAL WASTESTREAMS UNDER SECTION 122.63(I);
OR
(III) LIMITATIONS ON INDICATOR POLLUTANTS UNDER SECTION 125.3(G).
(2) FOR EVERY PERMIT TO BE ISSUED TO A TREATMENT WORKS OWNED BY A
PERSON OTHER THAN A STATE OR MUNICIPALITY, AN EXPLANATION OF THE
DIRECTOR'S DECISION ON REGULATION OF USERS UNDER SECTION 122.62(M).
(C) WHEN APPROPRIATE, A SKETCH OR DETAILED DESCRIPTION OF THE
LOCATION OF THE DISCHARGE DESCRIBED IN THE APPLICATION; AND
(D) FOR EPA-ISSUED NPDES PERMITS, THE REQUIREMENTS OF ANY STATE
CERTIFICATION UNDER SECTION 124.53.
(A) SECTION 316(A) REQUESTS (APPLICABLE TO STATE PROGRAMS, SEE
SECTION 123.7). IN ADDITION TO THE INFORMATION REQUIRED UNDER SECTION
124.10(D)(1), PUBLIC NOTICE OF AN NPDES DRAFT PERMIT FOR A DISCHARGE
WHERE A CWA SECTION 316(A) REQUEST HAS BEEN FILED UNDER SECTION
122.53(I) SHALL INCLUDE:
(1) A STATEMENT THAT THE THERMAL COMPONENT OF THE DISCHARGE IS
SUBJECT TO EFFLUENT LIMITATIONS UNDER CWA SECTIONS 301 OR 306 AND A
BRIEF DESCRIPTION, INCLUDING A QUANTITATIVE STATEMENT, OF THE THERMAL
EFFLUENT LIMITATIONS PROPOSED UNDER SECTION 301 OR 306; AND
(2) A STATEMENT THAT A SECTION 316(A) REQUEST HAS BEEN FILED AND THAT
ALTERNATIVE LESS STRINGENT EFFLUENT LIMITATIONS MAY BE IMPOSED ON THE
THERMAL COMPONENT OF THE DISCHARGE UNDER SECTION 316(A) AND A BRIEF
DESCRIPTION, INCLUDING A QUANTITATIVE STATEMENT, OF THE ALTERNATIVE
EFFLUENT LIMITATIONS, IF ANY, INCLUDED IN THE REQUEST.
(3) IF THE APPLICANT HAS FILED AN EARLY SCREENING REQUEST UNDER
SECTION 125.72 FOR A SECTION 316(A) VARIANCE, A STATEMENT THAT THE
APPLICANT HAS SUBMITTED SUCH A PLAN.
(B) EVIDENTIARY HEARINGS UNDER SUBPART E. IN ADDITION TO THE
INFORMATION REQUIRED UNDER SECTION 124.10(D)(2), PUBLIC NOTICE OF A
HEARING UNDER SUBPART E SHALL INCLUDE:
(1) REFERENCE TO ANY PUBLIC HEARING UNDER SECTION 124.12 ON THE
DISPURTED PERMIT;
(2) NAME AND ADDRESS OF THE PERSON(S) REQUESTING THE EVIDENTIARY
HEARING;
(3) A STATEMENT OF THE FOLLOWING PROCEDURES;
(I) ANY PERSON SEEKING TO BE A PARTY MUST FILE A REQUEST TO BE
ADMITTED AS A PARTY TO THE HEARING WITHIN 15 DAYS OF THE DATE OF
PUBLICATION OF THE NOTICE;
(II) ANY PERSON SEEKING TO BE A PARTY MAY, SUBJECT TO THE
REQUIREMENTS OF SECTION 124.76, PROPOSE MATERIAL ISSUES OF FACT OR LAW
NOT ALREADY RAISED BY THE ORIGINAL REQUESTER OR ANOTHER PARTY;
(III) THE CONDITIONS OF THE PERMIT(S) AT ISSUE MAY BE AMENDED AFTER
THE EVIDENTIARY HEARING AND NAY PERSON INTERESTED IN THOSE PERMIT(S)
MUST REQUEST TO BE A PARTY IN ORDER TO PRESERVE ANY RIGHT TO APPEAL OR
OTHERWISE CONTEST THE FINAL ADMINISTRATIVE DECISION.
(C) NON-ADVERSARY PANEL PROCEDURES UNDER SUBPART F. (1) IN ADDITION
TO THE INFORMATION REQUIRED UNDER SECTION 124.10(D)(2), MAILED PUBLIC
NOTICE OF A DRAFT PERMIT TO BE PROCESSED UNDER SUBPART F SHALL INCLUDE A
STATEMENT THAT ANY HEARING SHALL BE HELD UNDER SUBPART F (PANEL
HEARING).
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 206 OF 225
COSTLE DM ADMINISTRATOR
EPA
113705
REGULATIONS
(2) MAILED PUBLIC NOTICE OF PANEL HEARING UNDER SUBPART F SHALL
INCLUDE:
(I) NAME AND ADDRESS OF THE PERSON REQUESTING THE HEARING, OR A
STATEMENT THAT THE HEARING IS BEING HELD BY ORDER OF THE REGIONAL
ADMINISTRATOR, AND THE NAME AND ADDRESS OF EACH KNOWN PARTY TO THE
HEARING;
(II) A STATEMENT WHETHER THE RECOMMENDED DECISION WILL BE ISSUED BY
THE PRESIDING OFFICER OR BY THE REGIONAL ADMINISTRATOR;
(III) THE DUE DATE FOR FILING A WRITTEN REQUEST TO PARTICIPATE IN THE
HEARING UNDER SECTION 124.117; AND
(IV) THE DUE DATE FOR FILING COMMENTS UNDER SECTION 124.118.
(A) THE REGIONAL ADMINISTRATOR SHALL SEND A COPY OF THE DRAFT GENERAL
PERMIT AND THE ADMINISTRATIVE RECORD TO THE DEPUTY ASSISTANT
ADMINISTRATOR FOR WATER ENFORCEMENT DURING THE PUBLIC COMMENT PERIOD.
(B) THE DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT SHALL
HAVE 30 DAYS FROM RECEIPT OF THE DRAFT GENERAL PERMIT, OR SHALL HAVE
UNITL THE END OF THE PUBLIC COMMENT PERIOD, WHICHEVER IS LATER, TO
COMMENT UPON, OBJECT TO, OR MAKE RECOMMENDATIONS WITH RESPECT TO THE
DRAFT GENERAL PERMIT.
(C) IF THE DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT
OBJECTS TO A DRAFT GENERAL PERMIT WITHIN THE PERIOD SPECIFIED IN
PARAGRAPH (B) OF THIS SECTION, THE REGIONAL ADMINISTRATOR SHALL NOT
ISSUE THE FINAL GENERAL PERMIT UNTIL THE DEPUTY ASSISTANT ADMINISTRATOR
FOR WATER ENFORCEMENT CONCURS IN WRITING WITH THE CONDITIONS OF THE
GENERAL PERMIT.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
(A) IF DURING THE COMMENT PERIOD FOR AN NPDES DRAFT PERMIT, THE
DISTRICT ENGINEER ADVISES THE DIRECTOR IN WRITING THAT ANCHORAGE AND
NAVIGATION OF ANY OF THE WATERS OF THE UNITED STATES WOULD BE
SUBSTANTIALLY IMPAIRED BY THE GRANTING OF A PERMIT, THE PERMIT SHALL BE
DENIED AND THE APPLICANT SO NOTIFIED. IF THE DISTRICT ENGINEER ADVISED
THE DIRECTOR THAT IMPOSING SPECIFIED CONDITIONS UPON THE PERMIT IS
NECESSARY TO AVOID ANY SUBSTANTIAL IMPAIRMENT OF ANCHORAGE OR
NAVIGATION, THEN THE DIRECTOR SHALL INCLUDE THE SPECIFIED CONDITIONS IN
THE PERMIT. REVIEW OR APPEAL OF DENIAL OF A PERMIT OR OF CONDITIONS
SPECIFIED BY THE DISTRICT ENGINEER SHALL BE MADE THROUGH THE APPLICABLE
PROCEDURES OF THE CORPS OF ENGINEERS, AND MAY NOT BE MADE THROUGH THE
PROCEDURES PROVIDED IN THIS PART. IF THE CONDITIONS ARE STAYED BY A
COURT OF COMPETENT JURISDICTION OR BY APPLICABLE PROCEDURES OF THE CORPS
OF ENGINEERS, THOSE CONDITIONS SHALL CONSIDERED STAYED IN THE NPDES
PERMIT FOR THE DURATION OF THAT STAY.
(B) IF DURING THE COMMENT PERIOD THE U.S. FISH AND WILDLIFE SERVICE,
THE NATIONAL MARINE FISHERIES SERVICE, OR ANY OTHER STATE OR FEDERAL
AGENCY WITH JURISDICTION OVER FISH, WILDLIFE, OR PUBLIC HEALTH ADVISES
THE DIRECTOR IN WRITING THAT THE IMPOSITION OF SPECIFIED CONDITIONS UPON
THE PERMIT IS NECESSARY TO AVOID SUBSTANTIAL IMPAIRMENT OF FISH,
SHELLFISH, OR WILDLIFE RESOURCES, THE DIRECTOR MAY INCLUDE THE SPECIFIED
CONDITIONS IN THE PERMIT TO THE EXTENT THEY ARE DETERMINED NECESSARY TO
CARRY OUT THE PROVISIONS OF SECTION 122.12 AND OF THE CWA.
(C) IN APPROPRIATE CASES THE DIRECTOR MAY CONSULT WITH ONE OR MORE OF
THE AGENCIES REFERRED TO IN THIS SECTION BEFORE ISSUING A DRAFT PERMIT
AND MAY REFLECT THEIR VIEWS IN THE STATEMENT OF BASIS, THE FACT SHEET,
OR THE DRAFT PERMIT.
IN ADDITION TO THE REQUIREMENTS OF SECTION 124.15, THE FOLLOWING
PROVISIONS APPLY TO NPDES PERMITS AND TO RCRA OR UIC PERMITS TO THE
EXTENT THOSE PERMITS MAY HAVE BEEN CONSOLIDATED WITH AN NPDES PERMIT IN
A FORMAL HEARING:
(A)(1) IF A REQUEST FOR A FORMAL HEARING IS GRANTED UNDER SECTION
124.75 OR SECTION 124.114 REGARDING THE INITIAL PERMIT ISSUED FOR A NEW
SOURCE, A NEW DISCHARGER, OR A RECOMMENCING DISCHARGER, OR IF A PETITION
FOR REVIEW OF THE DENIAL OF A REQUEST FOR A FORMAL HEARING WITH RESPECT
TO SUCH A PERMIT IS TIMELY FILED WITH THE ADMINISTRATOR UNDER SECTION
124.91, THE APPLICANT SHALL BE WITHOUT A PERMIT PENDING FINAL AGENCY
ACTION UNDER SECTION 124.91.
(2) WHEREVER A SOURCE SUBJECT TO THIS PARAGRAPH HAS RECEIVED A FINAL
PERMIT UNDER SECTION 124.15 WHICH IS THE SUBJECT OF A HEARING REQUEST
UNDER SECTION 124.74 OR A FORMAL HEARING UNDER SECTION 124.75, THE
PRESIDING OFFICER, ON MOTION BY THE SOURCE, MAY ISSUE AN ORDER
AUTHORIZING IT TO BEGIN OPERATION BEFORE FINAL AGENCY ACTION IF IT
COMPLIES WITH ALL CONDITIONS OF THAT FINAL PERMIT DURING THE PERIOD
UNTIL FINAL AGENCY ACTION. THE PRESIDING OFFICER MAY GRANT SUCH A
MOTION IN ANY CASE WHERE NO PARTY OPPOSES IT, OR, IF A PARTY OPPOSED THE
MOTION, WHERE THE SOURCE DEMONSTRATES THAT (I) IT IS LIKELY TO PREVAIL
ON THE MERITS; (II IRREPARABLE HARM TO THE ENVIRONMENT WILL NOT RESULT
PENDING FINAL AGNECY ACTION IF IT IS ALLOWED TO COMMENCE OPERATIONS
BEFORE FINAL AGENCY ACTION; AND (III) THE PUBLIC INTEREST REQUIRES THAT
THE SOURCE BE ALLOWED TO COMMENCE OPERATIONS. ALL THE CONDITIONS OF ANY
PERMIT COVERED BY THAT ORDER SHALL BE FULLY EFFECTIVE AND ENFORCEABLE.
(B) THE REGIONAL ADMINISTRATOR, AT ANY TIME PRIOR TO THE RENDERING OF
AN INITIAL DECISION IN A FORMAL HEARING ON A PERMIT, MAY WITHDRAW THE
PERMIT AND PREPARE A NEW DRAFT PERMIT UNDER SECTION 124.6 ADDRESSING THE
PROTIONS SO WITHDRAWN. THE NEW DRAFT PERMIT SHALL PROCEED THROUGH THE
SAME PROCESS OF PUBLIC COMMENT AND OPPORTUNITY FOR A PUBLIC HEARING AS
WOULD APPLY TO ANY OTHER DRAFT PERMIT SUBJECT TO THIS PART. ANY
PORTIONS OF THE PERMIT WHICH ARE NOT WITHDRAWN AND WHICH ARE NOT STAYED
UNDER THIS SECTION SHALL REMAIN IN EFFECT.
(C)(1) IF A REQUEST FOR A FORMAL HEARING IS GRANTED IN WHOLE OR IN
PART UNDER SECTION 124.75 REGARDING A PERMIT FOR AN EXISTING SOURCE, OR
IF A PETITION FOR REVIEW OF THE DENIAL OF A REQUEST FOR A FORMAL HEARING
WITH RESPECT TO THAT PERMIT IS TIMELY FILED WITH THE ADMINISTRATOR UNDER
SECTION 124.91, THE FORCE AND EFFECT OF THE CONTESTED CONDITIONS OF THE
FINAL PERMIT SHALL BE STAYED. THE REGIONAL ADMINISTRATOR SHALL NOTIFY,
IN ACCORDANCE WITH SECTION 124.75, THE DISCHARGER AND ALL PARTIES OF THE
UNCONTESTED CONDITIONS OF THE FINAL PERMIT THAT ARE ENFORCEABLE
OBLIGATIONS OF THE DISCHARGER.
(2) WHEN EFFLUENT LIMITATIONS ARE CONTESTED, BUT THE UNDERLYING
CONTROL TECHNOLOGY IS NOT, THE NOTICE SHALL IDENTIFY THE INSTALLATION OF
THE TECHNOLOGY IN ACCORDANCE WITH THE PERMIT COMPLIANCE SCHEDULES (IF
UNCONTESTED) AS AN UNCONTESTED, ENFORCEABLE OBLIGATION OF THE PERMIT.
(3) WHEN A COMBINATION OF TECHNOLOGIES IS CONTESTED, BUT A PORTION OF
THE COMBINATION IS NOT CONTESTED, THAT PORTION SHALL BE IDENTIFIED AS
UNCONTESTED IF COMPATIBLE WITH THE COMBINATION OF TECHNOLOGIES PROPOSED
BY THE REQUESTER.
(4) UNCONTESTED CONDITIONS, IF INSEVERABLE FROM A CONTESTED
CONDITION, SHALL BE CONSIDERED CONTESTED.
(5) UNCONTESTED CONDITIONS SHALL BECOME ENFORCEABLE 30 DAYS AFTER THE
DATE OF NOTICE UNDER PARAGRAPH (C)(1) OF THIS SECTION GRANTING THE
REQUEST. IF, HOWEVER, A REQUEST FOR A FORMAL HEARING ON A CONDITION WAS
DENIED AND THE DENIAL IS APPEALED UNDER SECTION 124.91, THEN THAT
CONDITION SHALL BECOME ENFORCEABLE UPON THE DATE OF THE NOTICE OF THE
ADMINISTRATOR'S DECISION ON THE APPEAL IF THE DENIAL IS AFFIRMED, OR
SHALL BE STAYED, IN ACCORDANCE WITH THIS SECTION, IF THE ADMINISTRATOR
REVERSES THE DENIAL AND GRANTS THE EVIDENTIARY HEARING.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 207 OF 225
COSTLE DM ADMINISTRATOR
EPA
113706
REGULATIONS
(6) UNCONTESTED CONDITIONS SHALL INCLUDE:
(I) PRELIMINARY DESIGN AND ENGINEERING STUDIES OR OTHER REQUIREMENTS
NECESSARY TO ACHIEVE THE FINAL PERMIT CONDITIONS WHICH DO NOT ENTAIL
SUBSTANTIAL EXPENDITURES;
(II) PERMIT CONDITIONS WHICH WILL HAVE TO BE MET REGARDLESS OF WHICH
PARTY PREVAILS AT THE EVIDENTIARY HEARING;
(III) WHEN THE DISCHARGER PROPOSED A LESS STRINGENT LEVEL OF
TREATMENT THAN THAT CONTAINED IN THE FINAL PERMIT, ANY PERMIT CONDITIONS
APPROPRIATE TO MEET THE LEVELS PROPOSED BY THE DISCHARGER, IF THE
MEASURES REQUIRED TO ATTAIN THAT LESS STRINGENT LEVEL OF TREATMENT ARE
CONSISTENT WITH THE MEASURES REQUIRED TO ATTAIN THE LIMITS PROPOSED BY
ANY OTHER PARTY; AND
(IV) CONSTRUCTION ACTIVITIES, SUCH AS SEGREGATION OF WASTE STREAMS OR
INSTALLATION OF EQUIPMENT, WHICH WOULD PARTIALLY MEET THE FINAL PERMIT
CONDITIONS AND COULD ALSO BE USED TO ACHIEVE THE DISCHARGER'S PROPOSED
ALTERNATIVE CONDITIONS.
(D) IF AT ANY TIME AFTER A HEARING IS GRANTED AND AFTER THE REGIONAL
ADMINISTRATOR'S NOTICE UNDER PARAGRAPH (C)(1) OF THIS SECTION IT BECOMES
CLEAR THAT A PERMIT REQUIREMENT IS NO LONGER CONTESTED, ANY PARTY MAY
REQUEST THE PRESIDING OFFICER TO ISSUE AN ORDER IDENTIFYING THE
REQUIREMENTS AS UNCONTESTED. THE REQUIREMENT IDENTIFIED IN SUCH ORDER
SHALL BECOME ENFORCEABLE 30 DAYS AFTER THE ISSUANCE OF THE ORDER.
(E) WHEN A FORMAL HEARING IS GRANTED UNDER SECTION 124.75 ON AN
APPLICATION FOR A RENEWAL OF AN EXISTING PERMIT, ALL PROVISIONS OF THE
EXISTING PERMIT AS WELL AS UNCONTESTED PROVISIONS OF THE NEW PERMIT,
SHALL CONTINUE FULLY ENFORCEABLE AND EFFECTIVE UNTIL FINAL AGENCY ACTION
UNDER SECTION 124.91. (SEE SECTION 122.5) UPON WRITTEN REQUEST FROM THE
APPLICANT, THE REGIONAL ADMINISTRATOR MAY DELETE REQUIREMENTS FROM THE
EXISTING PERMIT WHICH UNNECESSARILY DUPLICATE UNCONTESTED PROVISIONS OF
THE NEW PERMIT.
(F) WHEN ISSUING A FINALLY EFFECTIVE NPDES PERMIT THE CONDITIONS OF
WHICH WERE THE SUBJECT OF A FORMAL HEARING UNDER SUBPARTS E OR F, THE
REGIONAL ADMINISTRATOR SHALL EXTEND THE PERMIT COMPLIANCE SCHEDULE TO
THE EXTENT REQUIRED BY A STAY UNDER THIS SECTION PROVIDED THAT NO SUCH
EXTENSION SHALL BE GRANTED WHICH WOULD:
(1) RESULT IN THE VIOLATION OF AN APPLICABLE STATUTORY DEADLINE; OR
(2) CAUSE THE PERMIT TO EXPIRE MORE THAN 5 YEARS AFTER ISSUANCE UNDER
SECTION 124.15(A).
(NOTE. - EXTENSIONS OF COMPLIANCE SCHEDULES UNDER SECTION
124.60(F)(2) WILL NOT AUTOMATICALLY BE GRANTED FOR A PERIOD EQUAL TO THE
PERIOD THE STAY IS IN EFFECT FOR AN EFFLUENT LIMITATION. FOR EXAMPLE,
IF BOTH THE AGENCY AND THE DISCHARGER AGREE THAT A CERTAIN TREATMENT
TECHNOLOGY IS REQUIRED BY THE CWA WHERE GUIDELINES DO NOT APPLY, BUT A
HEARING IS GRANTED TO CONSIDER THE EFFLUENT LIMITATIONS WHICH THE
TECHNOLOGY WILL ACHIEVE, REQUIREMENTS REGARDING INSTALLATION OF THE
UNDERLYING TECHNOLOGY WILL NOT BE STAYED DURING THE HEARING. THUS,
UNLESS THE HEARING EXTENDS BEYOND THE FINAL COMPLIANCE DATE IN THE
PERMIT, IT WILL NOT ORDINARILY BE NECESSARY TO EXTEND THE COMPLIANCE
SCHEDULE. HOWEVER, WHEN APPLICATION OF AN UNDERLYING TECHNOLOGY IS
CHALLENGED, THE STAY FOR INSTALLATION REQUIREMENTS RELATING TO THAT
TECHNOLOGY WOULD EXTEND FOR THE DURATION OF THE HEARING.)
(G) FOR PURPOSES OF JUDICIAL REVIEW UNDER CWA SECTION 509(B), FINAL
AGENCY ACTION ON A PERMIT DOES NOT OCCUR UNLESS AND UNTIL A PARTY HAS
EXHAUSTED ITS ADMINISTRATIVE REMEDIES UNDER SUBPARTS E AND F AND SECTION
124.91. ANY PARTY WHICH NEGLECTS OR FAILS TO SEEK REVIEW UNDER SECTION
124.91 THEREBY WAIVES ITS OPPORTUNITY TO EXHAUST AVAILABLE AGENCY
REMEDIES.
NO FINAL NPDES PERMIT FOR A NEW SOURCE SHALL BE ISSUED UNTIL AT LEAST
30 DAYS AFTER THE DATE OF ISSUANCE OF A FINAL ENVIRONMENTAL IMPACT
STATEMENT IF ONE IS REQUIRED UNDER 40 CFR SECTION 6.805.
(APPLICABLE TO STATE PROGRAMS, SEE SECTION 123.7.)
(A) THE DIRECTOR MAY GRANT OR DENY REQUESTS FOR THE FOLLOWING
VARIANCES (SUBJECT TO EPA OBJECTION UNDER SECTION 123.75 FOR STATE
PERMITS):
(1) EXTENSIONS UNDER CWA SECTION 301(I) BASED ON DELAY IN COMPLETION
OF A PUBLICLY OWNED TREATMENT WORKS;
(2) AFTER CONSULTATION WITH THE REGIONAL ADMINISTRATOR, EXTENSIONS
UNDER CWA SECTION 301(K) BASED ON THE USE OF INNOVATIVE TECHNOLOGY; OR
(3) VARIANCES UNDER CWA SECTION 316(A) FOR THERMAL POLLUTION.
(B) THE STATE DIRECTOR MAY DENY, OR FORWARD TO THE REGIONAL
ADMINISTRATOR WITH A WRITTEN CONCURRENCE, OR SUBMIT TO EPA WITHOUT
RECOMMENDATION A COMPLETED REQUEST FOR:
(1) A VARIANCE BASED ON THE PRESENCE OF "FUNDAMENTALLY DIFFERNT
FACTORS" FROM THOSE ON WHICH AN EFFLUENT LIMITATIONS GUIDELINE WAS
BASED;
(2) A VARIANCE BASED ON THE ECONOMIC CAPABILITY OF THE APPLICANT
UNDER CWA SECTION 301(C);
(3) A VARIANCE BASED UPON CERTIAN WATER QUALITY FACTORS UNDER CWA
SECTION 301(G); OR
(4) A VARIANCE BASED ON WATER QUALITY RELATED EFFLUENT LIMITATIONS
UNDER CWA SECTION 302(B)(2).
(C) THE REGIONAL ADMINISTRATOR MAY DENY, FORWARD, OR SUBMIT TO THE
EPA DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT WITH A
RECOMMENDATION FOR APPROVAL, A REQUEST FOR A VARIANCE LISTED IN
PARAGRAPH (B) OF THIS SECTION THAT IS FORWARDED BY THE STATE DIRECTOR,
OR THAT IS SUBMITTED TO THE REGIONAL ADMINISTRATOR BY THE REQUESTER
WHERE EPA IS THE PERMITTING AUTHORITY.
(D) THE EPA DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT MAY
APPROVE OR DENY ANY VARIANCE REQUEST SUBMITTED UNDER PARAGRAPH (C) OF
THIS SECTION. IF THE DEPUTY ASSISTANT ADMINISTRATOR APPROVES THE
VARIANCE, THE DIRECTOR MAY PREPARE A DRAFT PERMIT INCORPORATING THE
VARIANCE. ANY PUBLIC NOTICE OF A DRAFT PERMIT FOR WHICH A VARIANCE OR
MODIFICATION HAS BEEN APPROVED OR DENIED SHALL IDENTIFY THE APPLICABLE
PROCEDURES FOR APPEALING THAT DECISION UNDER SECTION 124.54.
(A) IN STATES WHERE EPA IS THE PERMIT ISSUING AUTHORITY AND A REQUEST
FOR A VARIANCE IS FILED AS REQUIRED BY SECTION 122.53, THE REQUEST SHALL
BE PROCESSED AS FOLLOWS:
(1) IF AT THE TIME THAT A REQUEST FOR A VARIANCE IS SUBMITTED THE
REGIONAL ADMINISTRATOR HAS RECEIVED AN APPLICATION UNDER SECTION 124.3
FOR ISSUANCE OR RENEWAL OF THAT PERMIT BUT HAS NOT YET PREPARED A DRAFT
PERMIT UNDER SECTION 124.6 COVERING THE DISCHARGE IN QUESTION, THE
REGIONAL ADMINISTRATOR, AFTER OBTAINING ANY NECESSARY CONCURRENCE OF THE
EPA DEPUTY ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT UNDER SECTION
124.62, SHALL GIVE NOTICE OF A TENTATIVE DECISION ON THE REQUEST AT THE
TIME THE NOTICE OF THE DRAFT PERMIT IS PREPARED AS SPECIFIED IN SECTION
124.10, UNLESS THIS WOULD SIGNIFICANTLY DELAY THE PROCESSING OF THE
PERMIT. IN THAT CASE THE PROCESSING OF THE VARIANCE REQUEST MAY BE
SEPARATED FROM THE PERMIT IN ACCORDANCE WITH PARAGRAPH (A)(3) OF THIS
SECTION, AND THE PROCESSING OF THE PERMIT SHALL PROCEED WITHOUT DELAY.
(2) IF AT THE TIME THAT A REQUEST FOR A VARIANCE IS FILED THE
REGIONAL ADMINISTRATOR HAS GIVEN NOTICE UNDER SECTION 124.10 OF A DRAFT
PERMIT COVERING THE DISCHARGE IN QUESTION, BUT THAT PERMIT HAS NOT YET
BECOME FINAL, ADMINISTRATIVE PROCEEDINGS CONCERNING THAT PERMIT MAY BE
STAYED AND THE REGIONAL ADMINISTRATOR SHALL PREPARE A NEW DRAFT PERMIT
INCLUDING A TENTATIVE DECISION ON THE REQUEST, AND THE FACT SHEET
REQUIRED BY SECTION 124.8.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 208 OF 225
COSTLE DM ADMINISTRATOR
EPA
113707
REGULATIONS
HOWEVER, IF THIS WILL SIGNIFICANTLY DELAY THE PROCESSING OF THE EXISTING
DRAFT PERMIT OR THE REGIONAL ADMINISTRATOR, FOR OTHER REASONS, CONSIDERS
COMBINING THE VARIANCE REQUEST AND THE EXISTING DRAFT PERMIT
INADVISABLE, THE REQUEST MAY BE SEPARATED FROM THE PERMIT IN ACCORDANCE
WITH PARAGRAPH (A)(3) OF THIS SECTION, AND THE ADMINISTRATIVE
DISPOSITION OF THE EXISTING DRAFT PERMIT SHALL PROCEED WITHOUT DELAY.
(3) IF THE PERMIT HAS BECOME FINAL AND NO APPLICATION UNDER SECTION
124.3 CONCERNING IT IS PENDING OR IF THE VARIANCE REQUEST HAS BEEN
SEPARATED FROM A DRAFT PERMIT AS DESCRIBED IN PARAGRAPHS (A)(1) AND (2)
OF THIS SECTION, THE REGIONAL ADMINISTRATOR MAY PREPARE A NEW DRAFT
PERMIT AND GIVE NOTICE OF IT UNDER SECTION 124.10. THIS DRAFT PERMIT
SHALL BE ACCOMPANIED BY THE FACT SHEET REQUIRED BY SECTION 124.8 EXCEPT
THAT THE ONLY MATTERS CONSIDERED SHALL RELATE TO THE REQUESTED VARIANCE.
(A) WHEN A STATE ISSUES A PERMIT ON WHICH EPA HAS MADE A VARIANCE
DECISION, SEPARATE APPEALS OF THE STATE PERMIT AND OF THE EPA VARIANCE
DECISION ARE POSSIBLE. IF THE OWNER OR OPERATOR IS CHALLENGING THE SAME
ISSUES IN BOTH PROCEEDINGS, THE REGIONAL ADMINISTRATOR WILL DECIDE, IN
CONSULTATION WITH STATE OFFICIALS, WHICH CASE WILL BE HEARD FIRST.
(B) VARIANCE DECISIONS MADE BY EPA MAY BE APPEALED UNDER EITHER
SUBPARTS E OR F, PROVIDED THE REQUIREMENTS OF THE APPLICABLE SUBPART ARE
MET. HOWEVER, WHENEVER THE BASIS PERMIT DECISION IS ELIGIBLE ONLY FOR
AN EVIDENTIARY HEARING UNDER SUBPART E WHILE THE VARIANCE DECISION IS
ELIGIBLE ONLY FOR A PANEL HEARING UNDER SUBPART F, THE ISSUES RELATING
TO BOTH THE BASIC PERMIT DECISION AND THE VARIANCE DECISION SHALL BE
CONSIDERED IN THE SUBPART E PROCEEDING. NO SUBPART F HEARING MAY BE
HELD IF A SUBPART E HEARING WOULD BE HELD IN ADDITION. SEE SECTION
124.11(B).
(C) STAYS FOR SECTION 301(G) VARIANCES. IF A REQUEST FOR AN
EVIDENTIARY HEARING IS GRANTED ON A VARIANCE REQUESTED UNDER CWA SECTION
301(G), OR IF A PETITION FOR REVIEW OF THE DENIAL OF A REQUEST FOR THE
HEARING IS FILED UNDER SECTION 124.91, ANY OTHERWISE APPLICABLE
STANDARDS AND LIMITATIONS UNDER CWA SECTION 301 SHALL NOT BE STAYED
UNLESS:
(1) IN THE JUDGMENT OF THE REGIONAL ADMINISTRATOR, THE STAY OR THE
VARIANCE SOUGHT WILL NOT RESULT IN THE DISCHARGE OF POLLUTANTS IN
QUANTITIES WHICH MAY REASONABLY BE ANTICIPATED TO POSE AN UNACCEPTABLE
RISK TO HUMAN HEALTH OR THE ENVIRONMENT BECAUSE OF BIOACCUMULATION,
PERSISTENCY IN THE ENVIRONMENT, ACUTE TOXICITY, CHRONIC TOXICITY, OR
SYNERGISTIC PROPENSITIES; AND
(2) IN THE JUDGMENT OF THE REGIONAL ADMINISTRATOR, THERE IS A
SUBSTANTIAL LIKELIHOOD THAT THE DISCHARGER WILL SUCCEED ON THE MERITS OF
ITS APPEAL; AND
(3) THE DISCHARGER FILES A BOND OR OTHER APPROPRIATE SECURITY WHICH
IS REQUIRED BY THE REGIONAL ADMINISTRATOR TO ASSURE TIMELY COMPLIANCE
WITH THE REQUIREMENTS FROM WHICH A VARIANCE IS SOUGHT IN THE EVENT THAT
THE APPEAL IS UNSUCCESSFUL.
(D) STAYS FOR VARIANCES OTHER THAN SECTION 301(G) ARE GOVERNED BY
SECTION 124.60.
(A) WHERE IT IS CLEAR ON THE FACE OF A SECTION 301(H) REQUEST THAT
THE DISCHARGER IS NOT ENTITLED TO A VARIANCE, THE REQUEST SHALL BE
DENIED.
(B) IN THE CASE OF ALL OTHER SECTION 301(H) REQUESTS THE
ADMINISTRATOR, OR A PERSON DESIGNATED BY THE ADMINISTRATOR, MAY EITHER:
(1) GIVE WRITTEN AUTHORIZATION TO A REQUESTER TO SUBMIT INFORMATION
REQUIRED BY PART 125, SUBPART G OR THE FINAL REQUEST BY A DATE CERTAIN,
NOT TO EXCEED 9 MONTHS, IF:
(I) THE REQUESTER PROPOSES TO SUBMIT NEW OR ADDITIONAL INFORMATION
AND THE REQUEST DEMONSTRATES THAT;
(A) THE REQUESTER MADE CONSISTENT AND DILIGENT EFFORTS TO OBTAIN SUCH
INFORMATION PRIOR TO SUBMITTING THE FINAL REQUEST;
(B) THE FAILURE TO OBTAIN SUCH INFORMATION WAS DUE TO CIRCUMSTANCES
BEYOND THE CONTROL OF THE REQUESTER; AND
(C) SUCH INFORMATION CAN BE SUBMITTED PROMPTLY; OR
THE REQUESTER PROPOSES TO SUBMIT MINOR CORRECTIVE INFORMATION AND
SUCH INFORMATION CAN BE SUBMITTED PROMPTLY; OR
(2) MAKE A WRITTEN REQUEST OF A REQUESTER TO SUBMIT ADDITIONAL
INFORMATION BY A CERTAIN DATE, NOT TO EXCEED 9 MONTHS, IF SUCH
INFORMATION IS NECESSARY TO ISSUE A TENTATIVE DECISION UNDER SECTION
124.62(A)(1).
ALL ADDITIONAL INFORMATION SUBMITTED UNDER THIS PARAGRAPH WHICH IS
TIMELY RECEIVED, SHALL BE CONSIDERED PART OF THE ORIGINAL REQUEST.
(C) THE OTHERWISE APPLICABLE SECTIONS OF THIS PART APPLY TO DRAFT
PERMITS INCORPORATING SECTION 301(H) VARIANCE, EXCEPT THAT BECAUSE
301(H) PERMITS MAY ONLY BE ISSUED BY EPA, THE TERMS "ADMINISTRATOR OR A
PERSON DESIGNATED BY THE REGIONAL ADMINISTRATOR" SHALL BE SUBSTITUTED
FOR THE TERM "DIRECTOR" AS APPROPRIATE.
(D) NO PERMIT SUBJECT TO A 301(H) VARIANCE SHALL BE ISSUED UNLESS THE
APPROPRIATE STATE OFFICIALS HAVE CONCURRED OR WAIVED CONCURRENCE
PURSUANT TO SECTION 124.54. IN THE CASE OF A PERMIT ISSUED TO A
REQUESTER IN AN APPROVED STATE, THE STATE DIRECTOR MAY;
(1) REVOKE ANY EXISTING PERMIT AS OF THE EFFECTIVE DATE OF THE
EPA-ISSUED PERMIT SUBJECT TO A 301(H) VARIANCE; AND
(2) CO-SIGN THE PERMIT SUBJECT TO THE 301(H) VARIANCE, IF THE
DIRECTOR HAS INDICATED AN INTENT TO DO SO IN THE WRITTEN CONCURRENCE
(A) EXCEPT AS PROVIDED IN SECTION 124.65, THE ONLY ISSUES CONNECTED
WITH ISSUANCE OF A PARTICULAR PERMIT ON WHICH EPA WILL MAKE A FINAL
AGENCY DECISION BEFORE THE FINAL PERMIT IS ISSUED UNDER SECTIONS 124.15
AND 124.60 ARE WHETHER ALTERNATIVE EFFLUENT LIMITATIONS WOULD BE
JUSTIFIED UNDER CWA SECTION 316(A) AND WHETHER COOLING WATER INTAKE
STRUCTURES WILL USE THE BEST AVAILABLE TECHNOLOGY UNDER SECTION 316(B).
PERMIT APPLICANTS WHO WISH AN EARLY DECISION ON THESE ISSUES SHOULD
REQUEST IT AND FURNISH SUPPORTING REASONS AT THE TIME THEIR PERMIT
APPLICATIONS ARE FILED UNDER SECTIONS 122.53. THE REGIONAL
ADMINISTRATOR WILL THEN DECIDE WHETHER OR NOT TO MAKE AN EARLY DECISION.
IF IT IS GRANTED, BOTH THE EARLY DECISION ON CWA SECTION 316(A) OR (B)
ISSUES AND THE GRANT OF THE BALANCE OF THE PERMIT SHALL BE CONSIDERED
PERMIT ISSUANCE UNDER THESE REGULATIONS, AND SHALL BE SUBJECT TO THE
SAME REQUIREMENTS OF PUBLIC NOTICE AND COMMENT AND THE SAME OPPORTUNITY
FOR AN EVIDENTIARY OR PANEL HEARING UNDER SUBPARTS E OR F.
(B) IF THE REGIONAL ADMINISTRATOR, ON REVIEW OF THE ADMINISTRATIVE
RECORD, DETERMINES THAT THE INFORMATION NECESSARY TO DECIDE WHETHER OR
NOT THE CWA SECTION 316(A) ISSUE IS NOT LIKELY TO BE AVAILABLE IN TIME
FOR A DECISION ON PERMIT ISSUANCE, THE REGIONAL ADMINISTRATOR MAY ISSUE
A PERMIT UNDER SECTION 124.15 FOR A TERM UP TO 5 YEARS. THIS PERMIT
SHALL REQUIRE ACHIEVEMENT OF THE EFFLUENT LIMITATIONS INITIALLY PROPOSED
FOR THE THERMAL COMPONENT OF THE DISCHARGE NO LATER THAN THE DATE
OTHERWISE REQUIRED BY LAW. HOWEVER, THE PERMIT SHALL ALS O AFFORD THE
PERMITTEE AN OPPORTUNITY TO FILE A DEMONSTRATION UNDER CWA SECTION
316(A) AFTER CONDUCTING SUCH STUDIES AS ARE REQUIRED UNDER 40 CFR PART
125, SUBPART H. A NEW DISCHARGER MAY NOT EXCEED THE THERMAL EFFLUENT
LIMITATION WHICH IS INITIALLY PROPOSED UNLESS AND UNTIL ITS CWA SECTION
316(A) VARIANCE REQUEST IS FINALLY APPROVED.
(C) ANY PROCEEDING HELD UNDER PARAGRAPH (A) OF THIS SECTION SHALL BE
PUBLICLY NOTICES AS REQUIRED BY SECTION 124.10 AND SHALL BE CONDUCTED AT
A TIME ALLOWING THE PERMITTEE TO TAKE NECESSARY MEASURES TO MEET THE
FINAL COMPLIANCE DATE IN THE EVENT ITS REQUEST FOR MODIFICATION OF
THERMAL LIMITS IS DENIED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 209 OF 225
COSTLE DM ADMINISTRATOR
EPA
113708
REGULATIONS
(D) WHENEVER THE REGIONAL ADMINISTRATOR DEFERS THE DECISION UNDER CWA
SECTION 316(A), ANY DECISION UNDER SECTION 316(B) MAY BE DEFERRED.
(A) THE REGULATIONS IN THIS SUBPART GOVERN ALL FORMAL HEARINGS
CONDUCTED BY EPA UNDER CWA SECTION 402, EXCEPT FOR THOSE CONDUCTED UNDER
SUBPART F. THEY ALSO GOVERN ALL EVIDENTIARY HEARINGS CONDUCTED UNDER
RCRA SECTION 3008 IN CONNECTION WITH THE TERMINATION OF A RCRA PERMIT.
THIS INCLUDES TERMINATION OF INTERIM STATUS FOR FAILURE TO FURNISH
INFORMATION NEEDED TO MADE A FINAL DECISION. A FORMAL HEARING IS
AVAILABLE TO CHALLENGE ANY NPDES PERMIT ISSUED UNDER SECTION 124.15
EXCEPT FOR A GENERAL PERMIT. PERSONS AFFECTED BY A GENERAL PERMIT MAY
NOT CHALLENGE THE CONDITIONS OF A GENERAL PERMIT AS OF RIGHT IN FURTHER
AGENCY PROCEEDINGS. THEY MAY INSTEAD EITHER CHALLENGE THE GENERAL
PERMIT IN COURT, OR APPLY FOR AN INDIVIDUAL NPDES PERMIT UNDER SECTION
122.53 AS AUTHORIZED IN SECTION 122.59 AND THEN REQUEST A FORMAL HEARING
ON THE ISSUANCE OR DENIAL OF AN INDIVIDUAL PERMIT. (THE REGIONAL
ADMINISTRATOR ALSO HAS THE DISCRETION TO USE THE PROCEDURES OF SUBPART F
FOR GENERAL PERMITS. SEE SECTION 124.111.)
(B) IN CERTAIN CASES, EVIDENTIARY HEARINGS UNDER THIS SUBPART MAY
ALSO BE HELD ON THE CONDITIONS OF UIC PERMITS, OR OF RCRA PERMITS WHICH
ARE BEING ISSUED, MODIFIED, OR REVOKED AND REISSUED, RATHER THAN
TERMINATED OR SUSPENDED. THIS WILL OCCUR WHEN THE CONDITIONS OF THE UIC
OR RCRA PERMIT IN QUESTION ARE CLOSELY LINKED WITH THE CONDITIONS OF AN
NPDES PERMIT AS TO WHICH ARE EVIDENTIARY HEARING HAS BEEN GRANTED. SEE
SECTION 124.74(B)(2). ANY INTERESTED PERSON MAY CHALLENGE THE REGIONAL
ADMINISTRATOR'S INITIAL NEW SOURCE DETERMINATION BY REQUESTING AN
EVIDENTIARY HEARING UNDER THIS PART. SEE SECTION 122.66.
(C) PSD PERMITS MAY NEVER BE SUBJECT TO AN EVIDENTIARY HEARING UNDER
THIS SUBPART. SECTION 124.74(B)(2)(IV) PROVIDES ONLY FOR CONSOLIDATION
OF PSD PERMITS WITH OTHER PERMITS SUBJECT TO A PANEL HEARING UNDER
SUBPART F.
FOR THE PURPOSE OF THIS SUBPART, THE FOLLOWING DEFINITIONS ARE
APPLICABLE:
"HEARING CLERK" MEANS THE HEARING CLERK, U.S. ENVIRONMENTAL
PROTECTION AGENCY, 401 M STREET, S.W., WASHINGTON, D.C. 20460.
"JUDICIAL OFFICER" MEANS A PERMANENT OR TEMPORARY EMPLOYEE OF THE
AGENCY APPOINTED AS A JUDICIAL OFFICER BY THE ADMINISTRATOR UNDER THESE
REGULATIONS AND SUBJECT TO THE FOLLOWING CONDITIONS;
(A) A JUDICIAL OFFICER SHALL BE A LICENSED ATTORNEY. A JUDICIAL
OFFICER SHALL NOT BE EMPLOYED IN THE OFFICE OF ENFORCEMENT OR THE OFFICE
OF WATER AND WASTE MANAGEMENT, AND SHALL NOT PARTICPATE IN THE
CONSIDERATION OR DECISION OF ANY CASE IN WHICH HE OR SHE PERFORMED
INVESTIGATIVE OR PROSECUTORIAL FUNCTIONS, OR WHICH IS FACTUALLY RELATED
TO SUCH A CASE.
(B) THE ADMINISTRATOR MAY DELEGATE ANY AUTHORITY TO ACT IN AN APPEAL
OF A GIVEN CASE UNDER THIS SUBPART TO A JUDICIAL OFFICER WHO, IN
ADDITION, MAY PERFORM OTHER DUTIES FOR EPA, PROVIDED THAT THE DELEGATION
SHALL NOT PRECLUDE A JUDICIAL OFFICER FROM REFERRING ANY MOTION OR CASE
TO THE ADMINISTRATOR WHEN THE JUDICIAL OFFICER DECIDES SUCH ACTION WOULD
BE APPROPRIATE. THE ADMINISTRATOR, IN DECIDING A CASE, MAY CONSULT WITH
AND ASSIGN THE DRAFTING OF PRELIMINARY FINDINGS OF FACT AND CONCLUSIONS
AND/OR A PRELIMINARY DECISION TO ANY JUDICIAL OFFICER.
"PARTY" MEANS THE EPA TRIAL STAFF UNDER SECTION 124.78 AND ANY PERSON
WHOSE REQUEST FOR A HEARING UNDER SECTION 124.74 OR WHOSE REQUEST TO BE
ADMITTED AS A PARTY OR TO INTERVENE UNDER SECTION 124.79 OR SECTION
124.117 HAS BEEN GRANTED.
"PRESIDING OFFICER" FOR THE PURPOSES OF THIS SUBPART MEANS AN
ADMINISTRATIVE LAW JUDGE APPOINTED UNDER 5 U.S.C. 3105 AND DESIGNATED TO
PRESIDE AT THE HEARING. UNDER SUBPART F OTHER PERSONS MAY ALSO SERVE AS
HEARING OFFICERS. SEE SECTION 124.119.
"REGIONAL HEARING CLERK" MEANS AN EMPLOYEE OF THE AGENCY DESIGNATED
BY A REGIONAL ADMINISTRATOR TO ESTABLISH A REPOSITORY FOR ALL BOOKS,
RECORDS, DOCUMENTS, AND OTHER MATERIALS RELATING TO HEARINGS UNDER THIS
SUBPART.
(A) ALL SUBMISSIONS AUTHORIZED OR REQUIRED TO BE FILED WITH THE
AGENCY UNDER THIS SUBPART SHALL BE FILED WITH THE REGIONAL HEARING
CLERK, UNLESS OTHERWISE PROVIDED BY REGULATION. SUBMISSIONS SHALL BE
CONSIDERED FILED ON THE DATE ON WHICH THEY ARE MAILED OR DELIVERED IN
PERSON TO THE REGIONAL HEARING CLERK.
(B) ALL SUBMISSIONS SHALL BE SIGNED BY THE PERSON MAKING THE
SUBMISSION, OR BY AN ATTORNEY OR OTHER AUTHORIZED AGENT OR
REPRESENTATIVE.
(C)(1) ALL DATA AND INFORMATION REFERRED TO OR IN ANY WAY RELIED UPON
IN ANY SUBMISSION SHALL BE INCLUDED IN FULL AND MAY NOT BE INCORPORATED
BY REFERENCE, UNLESS PREVIOUSLY SUBMITTED AS PART OF THE ADMINISTRATIVE
RECORD IN THE SAME PROCEEDING. THIS REQUIREMENT DOES NOT APPLY TO STATE
OR FEDERAL STATUTES AND REGULATIONS, JUDICIAL DECISIONS PUBLISHED IN A
NATIONAL REPORTER SYSTEM, OFFICIALLY ISSUED EPA DOCUMENTS OF GENERAL
APPLICABILITY, AND ANY OTHER GENERALLY AVAILABLE REFERENCE MATERIAL
WHICH MAY BE INCORPORATED BY REFERENCE. ANY PARTY INCORPORATING
MATERIALS BY REFERENCE SHALL PROVIDE COPIES UPON REQUEST BY THE REGIONAL
ADMINISTRATOR OR THE PRESIDING OFFICER.
(2) IF ANY PART OF THE MATERIAL SUBMITTED IS IN A FOREIGN LANGUAGE,
IT SHALL BE ACCOMPANIED BY AN ENGLISH TRANSLATION VERIFIED UNDER OATH TO
BE COMPLETE AND ACCURATE, TOGETHER WITH THE NAME, ADDRESS, AND A BRIEF
STATEMENT OF THE QUALIFICATIONS OF THE PERSON MAKING THE TRANSLATION.
TRANSLATION OF LITERATURE OR OTHER MATERIAL IN A FOREIGN LANGUAGE SHALL
BE ACCOMPANIED BY COPIES OF THE ORIGINAL PUBLICATION.
(3) WHERE RELEVANT DATA OR INFORMATION IS CONTAINED IN A DOCUMENT
ALSO CONTAINING IRRELEVANT MATTER, EITHER THE IRRELEVANT MATTER SHALL BE
DELETED OR THE RELEVANT PORTIONS SHALL BE INDICATED.
(4) FAILURE TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION OR ANY
OTHER REQUIREMENTS IN THIS SUBPART MAY RESULT IN THE NONCOMPLYING
PORTIONS OF THE SUBMISS ION BEING EXCLUDED FROM CONSIDERATION. IF THE
REGIONAL ADMINISTRATOR OR THE PRESIDING OFFICER, ON MOTION BY ANY PART
OR SUA SPONTE, DETERMINES THAT A SUBMISSION FAILS TO MEET ANY
REQUIREMENT OF THIS SUBPART, THE REGIONAL ADMINISTRATOR OR PRESIDING
OFFICER SHALL DIRECT THE REGIONAL HEARING CLERK TO RETURN THE
SUBMISSION, TOGETHER WITH A REFERENCE TO THE APPLICABLE REGULATIONS. A
PARTY WHOSE MATERIALS HAVE BEEN REJECTED HAS 14 DAY S TO CORRECT THE
ERRORS AND RESUBMIT, UNLESS THE REGIONAL ADMINISTRATOR OR THE PRESIDING
OFFICER FINDS GOOD CAUSE TO ALLOW A LONGER TIME.
(D) THE FILING OF A SUBMISSION SHALL NOT MEAN OR IMPLY THAT IT IN
FACT MEETS ALL APPLICABLE REQUIREMENTS OR THAT IT CONTAINS REASONABLE
GROUNDS FOR THE ACTION REQUESTED OR THAT THE ACTION REQUESTED IS IN
ACCORDANCE WITH LAW.
(E) THE ORIGINAL OF ALL STATEMENTS AND DOCUMENTS CONTAINING FACTUAL
MATERIAL, DATA, OR OTHER INFORMATION SHALL BE SIGNED IN INK AND SHALL
STATE THE NAME, ADDRESS, AND THE REPRESENTATIVE CAPACITY OF THE PERSON
MAKING THE SUBMISSION.
(A) WITHIN 30 DAYS FOLLOWING THE SERVICE OF NOTICE OF THE REGIONAL
ADMINISTRATOR'S FINAL PERMIT DECISION UNDER SECTION 124.15, ANY
INTERESTED PERSON MAY SUBMIT A REQUEST TO THE REGIONAL ADMINISTRATOR
UNDER PARAGRAPH (B) OF THIS SECTION FOR AND EVIDENTIARY HEARING TO
RECONSIDER OR CONTEST THAT DECISION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 210 OF 225
COSTLE DM ADMINISTRATOR
EPA
113709
REGULATIONS
IF SUCH A REQUEST IS SUBMITTED BY A PERSON OTHER THAN THE PERMITTEE, THE
PERSON SHALL SIMULTANEOUSLY SERVE A COPY OF THE REQUEST ON THE
PERMITTEE.
(B)(1) IN ACCORDANCE WITH SECTION 124.76, SUCH REQUESTS SHALL STATE
EACH LEGAL OR FACTUAL QUESTION ALLEGED TO BE AT ISSUE, AND THEIR
RELEVANCE TO THE PERMIT DECISION TOGETHER WITH A DESIGNATION OF THE
SPECIFIC FACTUAL AREAS TO BE ADJUDICATED AND THE HEARING TIME ESTIMATED
TO BE NECESSARY FOR ADJUDICATION. INFORMATION SUPPORTING THE REQUEST OR
OTHER WRITTEN DOCUMENTS RELIED UPON TO SUPPORT THE REQUEST SHALL BE
SUBMITTED AS REQUIRED BY SECTION 124.73 UNLESS THEY ARE ALREADY PART OF
THE ADMINISTRATIVE RECORD REQUIRED BY SECTION 124.18.
(NOTE -- THIS PARAGRAPH ALLOWS THE SUBMISSION OF REQUESTS FOR
EVIDENTIARY HEARINGS EVEN THOUGH BOTH LEGAL AND FACTUAL ISSUES MAY BE
RAISED, OR ONLY LEGAL ISSUES MAY BE RAISED. IN THE LATTER CASE, BECAUSE
NO FACTUAL ISSUES WERE RAISED, THE REGIONAL ADMINISTRATOR WOULD BE
REQUIRED TO DENY THE REQUEST. HOWEVER, ON REVIEW OF THE DENIAL THE
ADMINISTRATOR IS AUTHORIZED BY SECTION 124.91(A)(1) TO REVIEW POLICY OR
LEGAL CONCLUSIONS OF THE REGIONAL ADMINISTRATOR. EPA IS REQUIRING AN
APPEAL TO THE ADMINISTRATOR EVEN OF PURELY LEGAL ISSUES INVOLVED IN A
PERMIT DECISION TO ENSURE THAT THE ADMINISTRATOR WILL HAVE AN
OPPORTUNITY TO REVIEW ANY PERMIT BEFORE IT WILL BE FINAL AND SUBJECT TO
JUDICIAL REVIEW.)
(2) PERSONS REQUESTING AN EVIDENTIARY HEARING ON AN NPDES PERMIT
UNDER THIS SECTION MAY ALSO REQUEST AN EVIDENTIARY HEARING ON A RCRA OR
UIC PERMIT. PSD PERMITS MAY NEVER BE MADE PART OF AN EVIDENTIARY
HEARING UNDER SUBPART E. THIS REQUEST IS SUBJECT TO ALL THE
REQUIREMENTS OF PARAGRAPH (B)(1) OF THIS SECTION AND IN ADDITION WILL BE
GRANTED ONLY IF:
(I) PROCESSING OF THE RCRA OR UIC PERMIT AT ISSUE WAS CONSOLIDATED
WITH THE PROCESSING OF THE NPDES PERMIT AS PROVIDED IN SECTION 124.4;
(II) THE STANDARDS FOR GRANTING A HEARING ON THE NPDES PERMIT ARE
MET;G
(III) THE RESOLUTION OF THE NPDES PERMIT ISSUES IS LIKELY TO MAKE
NECESSARY OR APPROPRIATE MODIFICATION OF THE RCRA OR UIC PERMIT; AND
(IV) IF A PSD PERMIT IS INVOLVED, A PERMITTEE WHO IS ELIGIBLE FOR AN
EVIDENTIARY HEARING UNDER SUBPART E ON HIS OR HER NPDES PERMIT REQUESTS
THAT THE FORMAL HEARING BE CONDUCTED UNDER THE PROCEDURES OF SUBPART F
AND THE REGIONAL ADMINISTRATOR FINDS THAT CONSOLIDATION IS UNLIKELY TO
DELAY FINAL PERMIT ISSUANCE BEYOND THE PSD ONE-YEAR STATUTORY DEADLINE.
(C) THESE REQUESTS SHALL ALSO CONTAIN:
(1) THE NAME, MAILING ADDRESS, AND TELEPHONE NUMBER OF THE PERSON
MAKING SUCH REQUEST;
(2) A CLEAR AND CONCISE FACTUAL STATEMENT OF THE NATURE AND SCOPE OF
THE INTEREST OF THE REQUESTER;
(3) THE NAMES AND ADDRESSES OF ALL PERSONS WHOM THE REQUESTER
REPRESENTS; AND
(4) A STATEMENT BY THE REQUESTER THAT, UPON MOTION OF ANY PARTY
GRANTED BY THE PRESIDING OFFICER, OR UPON ORDER OF THE PRESIDING OFFICER
SUA SPONTE WITHOUT COST OR EXPENSE TO ANY OTHER PARTY, THE REQUESTER
SHALL MAKE AVAILABLE TO APPEAR AND TESTIFY, THE FOLLOWING:
(I) THE REQUESTER;
(II) ALL PERSONS REPRESENTED BY THE REQUESTER; AND
(III) ALL OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AND AGENTS OF
THE REQUESTER AND THE PERSONS REPRESENTED BY THE REQUESTER.
(5) SPECIFIC REFERENCES TO THE CONTESTED PERMIT CONDITIONS, AS WELL
AS SUGGESTED REVISED OR ALTERNATIVE PERMIT CONDITIONS (INCLUDING PERMIT
DENIALS) WHICH, IN THE JUDGMENT OF THE REQUESTER, WOULD BE REQUIRED TO
IMPLEMENT THE PURPOSES AND POLICIES OF THE CWA.
(6) IN THE CASE OF CHALLENGES TO THE APPLICATION OF CONTROL OR
TREATMENT TECHNOLOGIES IDENTIFIED IN THE STATEMENT OF BASIS OR FACT
SHEET, IDENTIFICATION OF THE BASIS FOR THE OBJECTION, AND THE
ALTERNATIVE TECHNOLOGIES OR COMBINATION OF TECHNOLOGIES WHICH THE
REQUESTER BELIEVES ARE NECESSARY TO MEET THE REQUIREMENTS OF THE CWA.
(7) IDENTIFICATION OF THE PERMIT OBLIGATIONS THAT ARE CONTESTED OR
ARE INSEVERABLE FROM CONTESTED CONDITIONS AND SHOULD BE STAYED IF THE
REQUEST IS GRANTED BY REFERENCE TO THE PARTICULAR CONTESTED CONDITIONS
WARRANTING THE STAY.
(8) HEARING REQUESTS ALSO MAY ASK THAT A FORMAL HEARING BE HELD UNDER
THE PROCEDURES SET FORTH IN SUBPART F. AN APPLICANT MAY MAKE SUCH A
REQUEST EVEN IF THE PROCEEDING DOES NOT CONSTITUTE "INITIAL LICENSING"
AS DEFINED IN SECTION 124.111.
(D) IF THE REGIONAL ADMINISTRATOR GRANTS AN EVIDENTIARY HEARING
REQUEST, IN WHOLE OR IN PART, THE REGIONAL ADMINISTRATOR SHALL IDENTIFY
THE PERMIT CONDITIONS WHICH HAVE BEEN CONTESTED BY THE REQUESTER AND FOR
WHICH THE EVIDENTIARY HEARING HAS BEEN GRANTED. PERMIT CONDITIONS WHICH
ARE NOT CONTESTED OR FOR WHICH THE REGIONAL ADMINISTRATOR HAS DENIED THE
HEARING REQUEST SHALL NOT BE AFFECTED BY, OR CONSIDERED AT, THE
EVIDENTIARY HEARING. THE REGIONAL ADMINISTRATOR SHALL SPECIFY THESE
CONDITIONS IN WRITING IN ACCORDANCE WITH SECTION 124.60(C).
(E) THE REGIONAL ADMINISTRATOR MUST GRANT OR DENY ALL REQUESTS FOR AN
EVIDENTIARY HEARING ON A PARTICULAR PERMIT. ALL REQUESTS THAT ARE
GRANTED FOR A PARTICULAR PERMIT SHALL BE COMBINED IN A SINGLE
EVIDENTIARY HEARING.
(F) THE REGIONAL ADMINISTRATOR (UPON NOTICE TO ALL PERSONS WHO HAVE
ALREADY SUBMITTED HEARING REQUESTS) MAY EXTEND THE TIME ALLOWED FOR
SUBMITTING HEARING REQUESTS UNDER THIS SECTION FOR GOOD CAUSE.
(A)(1) WITHIN 30 DAYS FOLLOWING THE EXPIRATION OF THE TIME ALLOWED BY
SECTION 124.74 FOR SUBMITTING AN EVIDENTIARY HEARING REQUEST, THE
REGIONAL ADMINISTRATOR SHALL DECIDE THE EXTENT TO WHICH, IF AT ALL, THE
REQUEST SHALL BE GRANTED, PROVIDED THAT THE REQUEST CONFORMS TO THE
REQUIREMENTS OF SECTION 124.74, AND SETS FORTH MATERIAL ISSUES OF FACT
RELEVANT TO THE ISSUANCE OF THE PERMIT.
(2) WHEN AN NPDES PERMIT FOR WHICH A HEARING REQUEST HAS BEEN GRANTED
CONSTITUTES "INITIAL LICENSING" UNDER SECTION 124.111, THE REGIONAL
ADMINISTRATOR MAY ELECT TO HOLD A FORMAL HEARING UNDER THE PROCEDURES OF
SUBPART F RATHER THAN UNDER THE PROCEDURES OF THIS SUBPART EVEN IF NO
PERSON HAS REQUESTED THAT SUBPART F BE APPLIED. IF THE REGIONAL
ADMINISTRATOR MAKES SUCH A DECISION, HE OR SHE SHALL ISSUE A NOTICE OF
HEARING UNDER SECTION 124.116. ALL SUBSEQUENT PROCEEDINGS SHALL THEN BE
GOVERNED BY SECTIONS 124.117 THROUGH 124.121, EXCEPT THAT ANY REFERENCE
TO A DRAFT PERMIT SHALL MEAN THE FINAL PERMIT.
(3) WHENEVER THE REGIONAL ADMINISTRATOR GRANTS A REQUEST MADE UNDER
SECTION 124.74(C)(8) FOR A FORMAL HEARING UNDER SUBPART F ON AN NPDES
PERMIT THAT DOES NOT CONSTITUTE AN INITIAL LICENSE UNDER SECTION
124.111, THE REGIONAL ADMINISTRATOR SHALL ISSUE A NOTICE OF HEARING
UNDER SECTION 124.116 INCLUDING A STATEMENT THAT THE PERMIT WILL BE
PROCESSED UNDER THE PROCEDURES OF SUBPART F UNLESS A WRITTEN OBJECTION
IS RECEIVED WITHIN 30 DAYS. IF NO VALID OBJECTION IS RECEIVED, THE
APPLICATION SHALL BE PROCESSED IN ACCORDANCE WITH SECTIONS 124.117
THROUGH 124.121, EXCEPT THAT ANY REFERENCE TO A DRAFT PERMIT SHALL MEAN
THE FINAL PERMIT. IF A VALID OBJECTION IS RECEIVED, THIS SUBPART SHALL
BE APPLIED INSTEAD.
(B) IF A REQUEST FOR A HEARING IS DENIED IN WHOLE OR IN PART, THE
REGIONAL ADMINISTRATOR SHALL BRIEFLY STATE THE REASONS. THAT DENIAL IS
SUBJECT TO REVIEW BY THE ADMINISTRATOR UNDER SECTION 124.91.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 211 OF 225
COSTLE DM ADMINISTRATOR
EPA
113710
REGULATIONS
NO EVIDENCE SHALL BE SUBMITTED BY ANY PARTY TO A HEARING UNDER THIS
SUBPART THAT WAS NOT SUBMITTED TO THE ADMINISTRATIVE RECORD REQUIRED BY
SECTION 124.18 AS PART OF THE PREPARATION OF AND COMMENT ON A DRAFT
PERMIT, UNLESS GOOD CAUSE IS SHOWN FOR THE FAILURE TO SUBMIT IT. NO
ISSUES SHALL BE RAISED BY ANY PARTY THAT WERE NOT SUBMITTED TO THE
ADMINISTRATIVE RECORD REQUIRED BY SECTION 124.18 AS PART OF THE
PREPARATION OF AND COMMENT ON A DRAFT PERMIT UNLESS GOOD CAUSE IS SHOWN
FOR THE FAILURE TO SUBMIT THEM. GOOD CAUSE INCLUDES THE CASE WHERE THE
PARTY SEEKING TO RAISE THE NEW ISSUES OR INTRODUCE NEW INFORMATION SHOWS
THAT IT COULD NOT REASONABLY HAVE ASCERTAINED THE ISSUES OR MADE THE
INFORMATION AVAILABLE WITHIN THE TIME REQUIRED BY SECTION 124.15; OR
THAT IT COULD NOT HAVE REASONABLY ANTICIPATED THE RELEVANCE OR
MATERIALITY OF THE INFORMATION SOUGHT TO BE INTRODUCED. GOOD CAUSE
EXISTS FOR THE INTRODUCTION OF DATA AVAILABLE ON OPERATION AUTHORIZED
UNDER SECTION 124.60(A)(2).
PUBLIC NOTICE OF THE GRANT OF AN EVIDENTIARY HEARING REGARDING A
PERMIT SHALL BE GIVEN AS PROVIDED IN SECTION 124.57(B) AND BY MAILING A
COPY TO ALL PERSONS WHO COMMENTED ON THE DRAFT PERMIT, TESTIFIED AT THE
PUBLIC HEARING, OR SUBMITTED A REQUEST FOR A HEARING. BEFORE THE
ISSUANCE OF THE NOTICE, THE REGIONAL ADMINISTRATOR SHALL DESIGNATE THE
AGENCY TRIAL STAFF AND THE MEMBERS OF THE DECISIONAL BODY (AS DEFINED IN
SECTION 124.78).
(A) FOR PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL
APPLY:
(1) "AGENCY TRIAL STAFF" MEANS THOSE AGENCY EMPLOYEES, WHETHER
TEMPORARY OR PERMANENT, WHO HAVE BEEN DESIGNATED BY THE AGENCY UNDER
SECTION 124.77 OR SECTION 124.116 AS AVAILABLE TO INVESTIGATE, LITIGATE,
AND PRESENT THE EVIDENCE, ARGUMENTS, AND POSITION OF THE AGENCY IN THE
EVIDENTIARY HEARING OR NONADVERSARY PANEL HEARING. APPEARANCE AS A
WITNESS DOES NOT NECESSARILY REQUIRE A PERSON TO BE DESIGNATED AS A
MEMBER OF THE AGENCY TRIAL STAFF;
(2) "DECISIONAL BODY" MEANS ANY AGENCY EMPLOYEE WHO IS OR MAY
REASONABLY BE EXPECTED TO BE INVOLVED IN THE DECISIONAL PROCESS OF THE
PROCEEDING INCLUDING THE ADMINISTRATOR, JUDICIAL OFFICER, PRESIDING
OFFICER, THE REGIONAL ADMINISTRATOR (IF HE OR SHE DOES NOT DESIGNATE
HIMSELF OR HERSELF AS A MEMBER OF THE AGENCY TRIAL STAFF), AND ANY OF
THEIR STAFF PARTICIPATING IN THE DECISIONAL PROCESS. IN THE CASE OF A
NON-ADVERSARY PANEL HEARING, THE DECISIONAL BODY SHALL ALSO INCLUDE THE
PANEL MEMBERS, WHETHER OR NOT PERMANENTLY EMPLOYED BY THE AGENCY;
(3)"EX PARTE COMMUNICATION" MEANS ANY COMMUNICATION, WRITTEN OR ORAL,
RELATING TO THE MERITS OF THE PROCEEDING BETWEEN THE DECISIONAL BODY AND
AN INTERESTED PERSON OUTSIDE THE AGENCY OR THE AGENCY TRIAL STAFF WHICH
WAS NOT ORIGINALLY FILED OR STATED IN THE ADMINISTRATIVE RECORD OR IN
THE HEARING. EX PARTE COMMUNICATIONS DO NOT INCLUDE:
(I) COMMUNICATIONS BETWEEN AGENCY EMPLOYEES OTHER THAN BETWEEN THE
AGENCY TRIAL STAFF AND THE MEMBERS OF THE DECISIONAL BODY;
(II) DEISCUSSIONS BETWEEN THE DECISIONAL BODY AND EITHER;
(A) INTERESTED PERSONS OUTSIDE THE AGENCY, OR
(B) THE AGENCY TRIAL STAFF, IF ALL PARTIES HAVE RECEIVED PRIOR
WRITTEN NOTICE OF THE PROPOSED COMMUNICATIONS AND HAVE BEEN GIVEN THE
OPPORTUNITY TO BE PRESENT AND PARTICIPATE THEREIN.
(4) "INTERESTED PERSON OUTSIDE THE AGENCY" INCLUDES THE PERMIT
APPLICANT, ANY PERSON WHO FILED WRITTEN COMMENTS IN THE PROCEEDING, ANY
PERSON WHO REQUESTED THE HEARING, ANY PERSON WHO REQUESTED TO
PARTICIPATE OR INTERVENE IN THE HEARING, ANY PARTICIPANT IN THE HEARING
AND ANY OTHER INTERESTED PERSON NOT EMPLOYED BY THE AGENCY AT THE TIME
OF THE COMMUNICATIONS, AND ANY ATTORNEY OF RECORD FOR THOSE PERSONS.
(B)(1) NO INTERESTED PERSON OUTSIDE THE AGENCY OR MEMBER OF THE
AGENCY TRIAL STAFF SHALL MAKE OR KNOWINGLY CAUSE TO BE MADE TO ANY
MEMBERS OF THE DECISIONAL BODY, AN EX PARTE COMMUNICATION ON THE MERITS
OF THE PROCEEDINGS.
(2) NO MEMBERS OF THE DECISIONAL BODY SHALL MAKE OR KNOWINGLY CAUSE
TO BE MADE TO ANY INTERESTED PERSON OUTSIDE THE AGENCY OR MEMBER OF THE
AGENCY TRIAL STAFF, AN EX PARTE COMMUNICATION ON THE MERITS OF THE
PROCEEDINGS.
(3) A MEMBER OF THE DECISIONAL BODY WHO RECEIVES OR WHO MAKES OR WHO
KNOWINGLY CAUSES TO BE MADE A COMMUNICATION PROHIBITED BY THIS
SUBSECTION SHALL FILE WITH THE REGIONAL HEARING CLERK ALL WRITTEN
COMMUNICATIONS OR MEMORANDA STATING THE SUBSTANCE OF ALL ORAL
COMMUNICATIONS TOGETHER WITH ALL WRITTEN RESPONSES AND MEMORANDA STATING
THE SUBSTANCE OF ALL ORAL RESPONSES.
(C) WHENEVER ANY MEMBER OF THE DECISIONMAKING BODY RECEIVES AN EX
PARTE COMMUNICATION KNOWINGLY MADE OR KNOWINGLY CAUSED TO BE MADE BY A
PARTY OR REPRESENTATIVE OF A PARTY IN VIOLATION OF THIS SECTION, THE
PERSON PRESIDING AT THE STAGE OF THE HEARING THEN IN PROGRESS MAY, TO
THE EXTENT CONSISTENT WITH JUSTICE AND THE POLICY OF THE CWA, REQUIRE
THE PARTY TO SHOW CAUSE WHY ITS CLAIM OR INTEREST IN THE PROCEEDINGS
SHOULD NOT BE DISMISSED, DENIED, DISREGARDED, OR OTHERWISE ADVERSELY
AFFECTED ON ACCOUNT OF SUCH VIOLATION.
(D) THE PROHIBITION OF THIS SECTION BEGIN TO APPLY UPON ISSUANCE OF
THE NOTICE OF THE GRANT OF A HEARING UNDER SECTION 124.77 OR SECTION
124.116. THIS PROHIBITION TERMINATES AT THE DATE OF FINAL AGENCY
ACTION.
(A) ANY PERSON MAY SUBMIT A REQUEST TO BE ADMITTED AS A PARTY WITHIN
15 DAYS AFTER THE DATE OF MAILING, PUBLICATION, OR POSTING OF NOTICE OF
THE GRANT OF AN EVIDENTIARY HEARING, WHICHEVER OCCURS LAST. THE
PRESIDING OFFICER SHALL GRANT REQUESTS THAT MEET THE REQUIREMENTS OF
SEFTIONS 124.74 AND 124.76.
(B) AFTER THE EXPIRATION OF THE TIME PRESCRIBED IN PARAGRAPH (A) OF
THIS SECTION ANY PERSON MAY FILE A MOTION FOR LEAVE TO INTERVENE AS A
PARTY. THIS MOTION MUST MEET THE REQUIREMENTS OF SECTIONS 124.74 AND
124.76 AND SET FORTH THE GROUNDS FOR THE PROPOSED INTERVENTION. NO
FACTUAL OR LEGAL ISSUES, BESIDES THOSE RAISED BY TIMELY HEARING
REQUESTS, MAY BE PROPOSED EXCEPT FOR GOOD CAUSE. A MOTION FOR LEAVE TO
INTERVENE MUST ALSO CONTAIN A VERIFIED STATEMENT SHOWING GOOD CAUSE FOR
THE FAILURE TO FILE A TIMELY REQUEST TO BE ADMITTED AS A PARTY. THE
PRESIDING OFFICER SHALL GRANT THE MOTION ONLY UPON AN EXPRESS FINDING ON
THE RECORD THAT:
(1) EXTRAORDINARY CIRCUMSTANCES JUSTIFY GRANTING THE MOTION;
(2) THE INTERVENER HAS CONSENTED TO BE BOUND BY;
(I) PRIOR WRITTEN AGREEMENTS AND STIPULATIONS BY AND BETWEEN THE
EXISTING PARTIES; AND
(II) ALL ORDERS PREVIOUSLY ENTERED IN THE PROCEEDINGS; AND
(3) INTERVENTION WILL NOT CAUSE UNDUE DELAY OR PREJUDICE THE RIGHTS
OF THE EXISTING PARTIES.
(A) AN ORIGINAL AND ONE(1) COPY OF ALL WRITTEN SUBMISSIONS RELATING
TO AN EVIDENTIARY HEARING FILED AFTER THE NOTICE IS PUBLISHED SHALL BE
FILED WITH THE REGIONAL HEARING CLERK.
(B) THE PARTY FILING ANY SUBMISSION SHALL ALSO SERVE A COPY OF
EACH SUBMISSION UPON THE PRESIDING OFFICER AND EACH PARTY OF
RECORD. SERVICE SHALL BE BY MAIL OR PERSONAL DELIVERY.
(C) EVERY SUBMISSION SHALL BE ACCOMPANIED BY AN ACKNOWLEDGEMENT OF
SERVICE BY THE PERSON SERVED OR A CERTIFICATE OF SERVICE CITING THE
DATE, PLACE, TIME, AND MANNER OF SERVICE AND THE NAMES OF THE PERSONS
SERVED.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 212 OF 225
COSTLE DM ADMINISTRATOR
EPA
113711
REGULATIONS
(D) THE REGIONAL HEARING CLERK SHALL MAINTAIN AND FURNISH A LISH
CONTAINING THE NAME, SERVICE ADDRESS, AND TELEPHONE NUMBER OF ALL
PARTIES AND THEIR ATTORNEYS OR DULY AUTHORIZED REPRESENTATIVES TO ANY
PERSON UPON REQUEST.
NO LATER THAN THE DATE OF AMILING, PUBLICATION, OR, POSTING OF THE
NOTICE OF A GRANT OF AN EVIDENTIARY HEARING, WHICHEVER OCCURES LAST, THE
REGIONAL ADMINISTRATOR SHALL REFER THE PROCEEDING TO THE CHIEF
ADMINISTRATIVE LAW JUDGE WHO SHALL ASSIGN AN ADMINISTRATIVE LAW JUDGE TO
SERVE AS PRESIDING OFFICER FOR THE HEARING.
(A) THE ADMINISTRATOR, REGIONAL ADMINISTRATOR, OR PRESIDING OFFICER
HAS THE DECICRETION TO CONSOLIDATE, IN WHOLE ORIN PART TWO OR MOR
PROCEEDINGS TO BE HELD UNDER THIS SUBPART, WHENEVER IT APPEARS THAT A
JOINT HEARING ON ANY OR ALL OF THE MATTERS IN ISSUE WOULD EXPEDITE OR
SIMPLIFY CONSIDERATION OF THE ISSUES AND THAT NO PARTY WOULD BE
PREJUDICED THEREBY. CONSOLIDATION SHALL NOT AFFECT THE RIGHT OF ANY
PARTY TO RAISE ISSUES THAT MIGHT HAVE BEEN RAISED HAD THERE BEEN NO
CONSOLIDATION
(B) IF THE PRESIDING OFFICER DETERMINES CONSOLIDATION IS NOT
CONDUCTIVE TO AN EXPEDTIIOUS, FULL, AND FAIR HEARING, ANY PARTY OF
ISSUES MAY BE SEVERED AND HEARD IN A SEPARATE PROCEEDING.
(A) THE PRESIDING OFFICER, SUA SPONTE, OR AT THE REQUEST OF ANY
PARTY, MAY DIRECT THE PARTIES OR THEIR ATTORNEYS OR DULY AUTHORIZED
REPRESENTATIVES TO APPEAR AT A SPECIFIED TIME AND PLACE FOR ONE OR MORE
CONFERENCES BEFORE OR DURING A HEARING, OR TO SUBMIT WRITTEN PROPOSALS
OR CORRESPOND FOR THE PURPOSE OF CONSIDERING ANY OF THE MATTERS SET
FORTH IN PARAGRAPH (C) OF THIS SECTION.
(B) THE PRESIDING OFFICER SHALL ALLOW A REASONABLE PERIOD BEFORE
HEARING BEGINS FOR THE ORDERLY COMPLETION OF ALL PREHEARING PROCEDURES
AND FOR THE SUBMISSION AND DISPOSITION OF ALL PREHEARING MOTIONS. WHERE
THE CIRCUMSTANCES WARRANT, THE PRESIDING OFFICER MAY CALL A PREHEARING
CONFERENCE TO INQUIRE INTO THE USE OF AVAILABLE PROCEDURES CONTEMPLATED
BY THE PARTIES AND THE TIME REQUIRED FOR THEIR COMPLETION, TO ESTABLISH
A SCHEDULE FOR THIER COMPLETION, AND TO SET A TENTATIVE DATE FOR
BEGINNING THE HEARING.
(C) IN CONFERENCES HELD, OR IN SUGGESTIONS SUBMITTED, THE FOLLOWING
MATTERS MAY BE CONSIDERED:
(1) SIMPLIFICATION, CLARIFICATION, AMPLIFICATION, OR LIMITATION OF
THE ISSUES.
(2) ADMISSION OF FACTS AND OF THE GENUINESS OF DOCUMENTS, AND
STIPULATIONS OF FACTS.
(3) OBJECTIONS TO THE INTRODUCTION INTO EVIDENCE AT THE HEARING OF
ANY WRITTEN TESTIMONY, DOCUMENTS, PAPERS, EXHIBITS, OR OTHER SUBMISSIONS
PROPOSED BY A PARTY, EXCEPT THAT THE ADMISTRATIVE RECORD REQUIRED BY
SECTION 124.19 SHALL BE RECEIVED IN EVIDENCE SUBJECT TO THE PROVISIONS
OF SECTION 125.85(D)(2). AT ANY TIME BEFORE THE END OF THE HEARING ANY
PARTY MAY MAKE, AND THE PRESIDING OFFICER SHALL CONSIDER AND RULE UPON,
MOTIONS TO STRIKE TESTIMONY OR OTHER EVIDENCE OTHER THAN THE
ADMINISTRATIVE RECORD ON THE GROUNDS OF RELEVANCE, COMPETENCY, OR
MATERIALITY.
(4) MATTERS SUBJECT TO OFFICIAL NOTICE MAY BE TAKEN .
(5) SCHEDULING AS MANY OF THE FOLLOWING AS ARE DEEMED NECESSARY AND
PROPER BY THE PRESIDING OFFICER:
(I) SUBMISSION OF NARRATIVE STATEMENTS OF POSITION ON EACH FACTUAL
ISSUE IN CONTROVERSY:
(II) SUBMISSION OF WRITTEN TESTIMONY AND DOCUMENTARY EVIDENCE (E.G.,
AFFIDAVITS, DATA, STUDIES, REPORTS, AND ANY OTHER TYPE OF WRITTEN
MATERIAL) IN SUPPORT OF THOSE STATEMENTS; OR
(III) REQUESTS BY ANY PARTY FOR THE PRODUCTION OF ADDITIONAL
DOCUMENTATION, DATA, OR OTHER INFORMATION RELEVANT AND MATERIAL TO THE
FACTS IN ISSUE.
(6) GROUPING PARTICIPANTS WITH SUBSTANTIALLY SIMILAR INTERESTS TO
ELIMINATE REDUNDANT EVIDENCE, MOTIONS, AND OBJECTIONS.
(7) SUCH OTHER MATTERS THAT MAY EXPEDITE THE HEARING OR AID
IN THE DISPOSITION OF THE MATTER.
(D) AT A PREHEARING CONFERENCE OR AT SOME OTHER REASONABLE TIME SET
BY THE PRESIDING OFFICER, EACH PARTY SHALL MAKE AVAILABLE TO ALL OTHER
PARTIES THE NAMES OF THEEXPERT AND OTHER WITNESSES IT EXPECTS TO CALL.
AT ITS DISCRETION OR AT THE REQUEST OF THE PRESIDING OFFICER,A PARTY MAY
INCLUDE A BREIF NARRATIVE SUMMARY, OF ANY WITNESS'S ANTICIPATED
TESTIMONY. COPIES OF ANY WRITTEN TESTIMONY, DOCUMENTS, PAPERS,
EXHIBITS, OR MATERIALS WHICH A PARTY EXPECTS TO INTRODUCE INTO EVIDENCE,
AND THE ADMINISTRATIVE RECORD REQUIRED BY SECTION 124.18 SHALL BE MARKED
FOR IDENTIFICATION AS ORDERED BY THE PRESIDING OFFICER. WITNESSES,
PROPOSED WRITTEN TESTIMONY, AND OTHER EVIDENCE MAY BE ADDED OR AMENDED
UPON ORDER OF THE PRESIDING OFFICERFOR GOOD CAUSE SHOWN. AGENCY
EMPLOYEES AND CONSULTANTS SHALL BE MADE AVAILABLE AS WITNESSES BY THE
AGENCY TO THE SAME EXTENT THAT PRODUCTION OF SUCH WITNESSE IS REQUIRED
OF OTHER PARTIES UNDER SECTION 124.74(C)(4). (SEE ALSO SECTION
124.85(B)(16).
(E) THE PRESIDING OFFICER SHALL PREPARE A WRITTEN PERHEARING ORDER
RECITING THE ACTIONS TAKEN AT EACH PREHEARING CONFERENCE AND SETTING
FORTH THE SCHEDULE FOR THE HEARING, UNLESS A TRANSCRIPT HAS BEEN TAKEN
AND ACCURATELY REFLECTS THESE MATTERS. THE ORDER SHALL INCLUDE A
WRITTEN STATEMENT OF THE AREAS OF FACTUAL AGREEMENT AND DISAGREEMENT AND
OF THE METHODS AND PROCEDURES TO BE USED IN DEVELOPING THE EVIDENCE AND
THE RESPECTIVE DUTIES OF THE PARTIES IN CONNECTION THEREWITH. THIS
ORDER SHALL CONTROL THE SUBSEQUENT COURSE OF THE HEARING UNLESS MODIFIED
BY THEPRESIDING OFFICER FOR GOOD CAUSE SHOWN.
(A) ANY PARTY TO AN EVIDENTIARY HEARING MAY MOVE WITH OR WITHOUT
SUPPORTING AFFIDAVITS AND BRIEFS FOR A SUMMARY DETERMINATION IN ITS
FAVOR UPON ANY OF THE ISSUES BEING ADJUDICATED ON THE BASIS THAT THERE
IS NO GENUINE ISSUE OF MATERIAL FACTFOR DETERMINATION. THIS MOTION
SHALL BE FILED AT LEAST 45 DAYS BEFORE THE DATE SET FOR THE HEARING,
EXCEPT THAT UPON GOOD CAUSE SHOWN THE MOTION MAY BE FILED AT ANY TIME
BEFORE THE CLOSE OF THE HEARING.
(B) ANY OTHER PARTY MAY, WITHIN 30 DAYS AFTER SERVICE OF THE MOTION,
FILE AND SERVE A RESPONSE TO IT OR A COUNTERMOTION FOR SUMMARY
DETERMINATION IS MADE AND SUPPORTED, A PARTY OPPOSING THE MOTION MAY NOT
REST UPON MERE ALLEGATIONS OR DENIALS BUT MUST SHOW, BY AFFIDAVIT OR BY
OTHER MATERIALS SUBJECT TO CONSIDERATION BY THE PRESIDING OFFICER, THAT
THERE IS A GENUINE ISSUE OF MATERIAL FACT FOR DETERMINATION AT THE
HEARING.
(C) AFFIDAVITS SHALL BE MADE ON PERSONAL KNOWLEDGE, SHALL SET FORTH
FACTS THAT WOULD BE ADMISSABLE IN EVIDENCE, AND SHALL SHOW AFFIRMATIVLY
THAT THE AFFIANT IS COMPETENT TO TESTIFY TO THE MATTERS STATED THEREIN.
(D) THE PRESIDING OFFICER MAY SET THE MATTER FOR ORAL ARGUMENT AND
CALL FOR THE SUBMISSION OF PROPOSED FINDINGS, CONCLUSIONS, BRIEFS, OR
MEMORANDA OF LAW. THE PRESIDING OFFICER SHALL RULE ON THE MOTION NOT
MRE THAN 30 DAYS AFTER THE DATE RESPONSES TO THE MOTION ARE FILED UNDER
PARAGRAPH (B) OF THIS SECTION.
(E) IF ALL FACTUAL ISSUES ARE DECIDED BY SUMMARY DETERMINATION, NO
HEARING WILL BEHELD AND THE PRESIDING OFFICER SHALL PREPARE AN INITIAL
DECISION UNDER SECTION 12.4.89. IF SUMMARY DETERMINATION IS DENIED OR
IF PARTIAL SUMMARY DETERMINATION IS GRATED, THE PRESIDING OFFICER SHALL
ISSUE A MEMORANDUM OPINION AND ORDER, INTERLOCUTORY IN CHARACTER, AND
THE HEARING WILL PROCEED ON THE REMAINING ISSUES. APPEALS FROM
INTERLOCUTORY RULINGS ARE GOVERNED BY SECTION 124.90.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 213 OF 225
COSTLE DM ADMINISTRATOR
EPA
113712
REGULATIONS
(F) SHOULD IT APPEAR FROM THE AFFIDAVITS OF A PARTY OPPOSING A MOTION
FOR SUMMARY DETERMINATION THAT HE OR SHE CANNOT FOR REASONS STATED
PRESENT, BY AFFIDAVIT OR OTHERWISE FACTS ESSENTIAL TO JUSTIFY HIS OR HER
OPPOSTION, THE PRESIDING OFFICER MAY DENY THE MOTION OR ORDER A
CONTINUANCE TO ALLOW ADDITIONAL AFFIDAVITS OR TOEHR INFORMATION TO BE
OBTAINED OR MAY TAKE SUCH OTHER ORDER AS IS JUST AND PROPER.
(A)(1) THE PERMIT PPLICANT ALWAYS BEARS THE BURDEN OF PURSUADING THE
AGENCY THAT A PERMIT AUTHORIZING POLLUTANTS TO BE DISCHARGED SHOULD BE
ISSUED AND NOT DENIED. THIS BURDEN DOES NOT SHIFT.
(NOTE. -- IN MANY CASES THE DOCUMENTS CONTAINED IN THE ADMINISTARTIVE
RECORD, IN PARTICULAR THE FACT SHEET OR STATEMENT OF BASIS AND THE
RESPONSE TO COMMENTS, SHOULD ADEQUATELY DISCHARGE THIS BURDER.)
(2) THE AGENCY HAS THE BURDEN OF GOING FORWARD TO PRESENT AN
AFFIRMATIVE CASE IN SUPPORT OF ANY CHALLENGED CONDITION OF A FINAL
PERMIT.
(3) ANY HEARING PARTICIPANT WHO, BY RAISING MATERIAL ISSUES OF FACT,
CONTENDS;
(I) THAT PARTICULAR CONDITIONS OR REQUIREMENTS IN THE PERMIT ARE
IMPROPER OR INVALID, AND WHO DESIRES WITHER:
(A) THE INCLUSION OF NEW OR DIFFERENT CONIDITIONS OR
REQUIREMENTS; OR
(B) THE DELETION OF THOSE CONDITIONS OR REQUIREMENTS; OR
(II) THAT T-E DENIAL OR ISSUANCE OF A PERMIT IS OTHERWISE IMPROPER OR
INVALID, SHALL HAVE THE BURDEN OF GOING FORWARD TO PRESENT AN
AFFIRMATIVE CASE AT THE CONCLUSION OF THE AGENCY CASE ON THE CHALLENGED
REQUIREMENT.
(B) THE PRESIDING OFFICER SHALL CONDUCT A FAIR AND IMPARTIAL HEARING,
TAKE ACTION TO AVOID UNNECESSARY DELAY IN THE DISPOSITION OF THE
PROCEEDINGS, AND MAINTAIN ORDER. FOR THESE PRUPOSES, THE PRESIDING
OFFICER MAY:
(1) ARRANGE AND ISSUE NOTICE OF THE DATE, TIME, AND PLACE OF HEARINGS
AND CONFERENCES;
(2) ESTABLISH THE METHODS AND PROCEDURES TO BE USED IN THE
DEVELOPMENT OF THE EVIDENCE;
(3) PREPARE, AFTER CONSIDERING THE VIEWS OF THE PARTICPANTS, WRITTEN
STATEMENTS OF AREAS OF FACTUAL DISAGREEMENT AMONG THE PARTICIPANTS;
(HOLD CONFERENCES TO SETTLE, SIMPLIFY, DETERMINE, OR STRIKE ANY OF
THE ISSUES IN A HEARING, OR TO CONSIDER OTHER MATTERS THAT MAY
FACILITATE THE EXPEDITIOUS DISPOSITION OF THE HEARING
(5) ADMINISTER OATHS AND AFFIRMATIONS;
(6) REGULATE THE COURSE OF THE HEARING AND GOVERN THE CONDUCT OF
PARTICIPANTS;
(7) EXAMINE WITNESSES;
(8) IDENTIFY AND REFER ISSUES FOR INTERLOCUTORY DECISION UNDER
SECTION 124.90;
9) RULE ON, ADMIT, EXCLUDE, OR LIMIT EVIDENCE;
(10) ESTABLISH THE TIME FOR FILING MOTIONS, TESTIMONY, AND OTHER
WRITTEN EVIDENCE, BRIEFS, FINDINGS, AND OTHER SUBMISSIONS;
(11) RULE ON MOTIONS AND OTHER PROCEDURAL MATTERS PENDING BEFORE
HIM, INCLUDING BUT NOT LIMITED TO MOTIONS FOR SUMMARY DETERMINATION
IN ACCORDANCE WITH SECTION 124.84;
(12) ORDER THAT THE HEARING BE CONDUCTED IN STAGES WHENEVER
THE NUMBER OF PARTIES IS LARGE OR THE ISSUES ARE NUMEROUS AND
COMPLEX;
(13) TAKE ANY ACTION NOT INCONSISTENT WITH THE PROVISIONS OF THIS
SUBPART FOR THE MAINTENANCE OF ORDER AT THE HEARING AND FOR THE
EXPEDITUOIS, FAIR, AND IMPARTIAL CONDUCT OF THE PROCEEDING;
(14) PROVIDE FOR THE TESTIMONY OF OPPOSING WITNESSES TO BE HEARD
SIMULTANEOUSLY OR FOR SUCH WITNESSES TO MEET OUTSIDE THE HERAING TO
RESOLVE OR ISOLATE ISSUES OR CONFLICTS;
(15) ORDER THAT TRADE SECRETS BE TREATED AS CONFIDENTIAL BUSINESS
INFORMATION IN ACCORDANCE WITH SECTION 122.19 AND 40 CFR PART 2; AND
(16) ALLOW SUCH CROSS-EXAMINATION AS MAY BE REQUIRED FOR A FULL AND
TRUE DISCLOSURE OF THE FACTS. NO CROSS-EXAMINATION SHALL BE ALLOWED ON
QUESTIONS OF POLICY EXCEPT TO THE EXTNT REQUIRD TO DISCLOS THE FACTUAL
BASIS FOR PERMIT REQUIREMENTS, OR ON QUESTIONS OF LAW, OR REGARDING
MATTERS (SUCH AS THE VALIDITY OF EFFLUENT LIMITATIONS GUIDELINES) THAT
ARENOT SUBJECT TO CHALLENGE IN AN EVIDENTIARY HEARING. NO AGENCY
WITNESSES SHALL BE REQUIRED TO TESTIFY OR BE MADE AVAILABLE FOR
CORSS-EXAMINATION ON SUCH MATTERS. IN DECIDING WHETHER ORNOT T O ALLOW
CROSS-EXAMINATION, THE PRESIDING OFFICER SHALL CONSIDER THE LIKELIHOOD
OF CLARIFYING OR RESOLVING A DISPUTED ISSUE OF MATERIAL FACT COMPARED TO
OTHER AVAILABLE METHODS. THE PARTY SEEKING CROSS-EXAMINATION HAS THE
BURDEN OF DEMONSTRATING THAT THIS STANDARD HAS BEEN MET.
(C) ALL DIRECT AND REBUTTAL EVIDENCE AT AN EVIDENTIARY HEARING SHALL
BE SUBMITTED IN WRITTEN FORM, UNLESS, UPON MOTION AND GOOD CUASE SHOWN,
THE PRESIDING OFFICER DETERMINES THATORAL PRESENTATION OF THE EVIDENCE
ON ANY PARTICULAR FACT WILL MATERIALLY ASSIST IN THE EFFICIENT
IDENTIFICATION AND CLARIFICATION OF THE ISSUES. WRITTEN TESTIMONY SHALL
BE PREPARED IN NARRATIVE FORM.
(D)(1) THE PRESIDING OFFICER SHALL ADMIT ALL RELEVANT, COMPETENT, AND
MATERIAL EVIDENCE, EXCEPT EVIDENCE THATIS UNDULY REPETITIOUS. EVIDENCE
MAY BE RECEIVED AT ANY HEARING EVEN THOUGH INADMISSABLE UNDER THERULES
OF EVIDENCE APPLICABLE TO JUDICIAL PROCEEDINGS. THE WEIGHT TO BE GIVEN
EVIDENCE SHALL BE DETERMINED BY ITS RELABILITY AND PROBATIVE VALUE.
(2) THE ADMINISTRATIVE RECORD REQUIRED BY SECTION 124.18 SHALL BE
ADMITTED AND RECEIVED IN EVIDENCE. UPON MOTION BY ANY PARTY
THEPRESIDING OFFICERMAY DIRECT THAT A WITNESS BE PROVIDED TO SPONSOR A
PORTION OF PORTIONS OF THE ADMINISTRATIVE RECORD. THE PRESIDING
OFFICER, UPON FINDING THAT THE STANDARDS IN SECTION 124.85(B)(3) HAVE
BEEN MET, SHALL DIRECT THE A-PROPRIATE PARTY OR PRODUCE THE WITNESS FOR
CROSS-EXAMINATION. IF A SPONSORING WITNESS CANNOT BE PROVIDED. THE
PRESIDING OFFICER MAY REDUCE THE WEIGHT ACCORDED THE APPROPRIATE PORTION
OF THE RECORD.
(NOTE. -- RECEIVING THE ADMINISTRATIVE RECORD INTO EVIDENCE
AUTOMATICALLYSERVES SEVERAL PURPOSES: (1) IT DOCUMENTS THE PRIOR COURSE
OF THE PROCEEDING; (2) IT PROVIDES A RECORD OF THE VIEWS OF AFFECTED
PERSONS FOR CONSIDERATION BY THE AGENCY DECISIONMAKER; AND (3) IT
PROVIDES FACTUAL MATERIAL FOR- USE BY THE DECISIONMAKER.).
(3) WHENEVER ANY EVIDENCE OF TESTIMONY IS EXCLUDED BY THE PRESIDING
OFFICER AS INADMISSIBLE, ALL SUCH EVIDENCE OR TESTIMONY EXISTING IN
WRITTEN FORM SHALL REMAIN A PART OF THE RECORD AS AN OFFER OF PROOF.
THE PARTY SEEKING THE ADMISSION OF ORAL TESTIMONY MAY MAKE AN OFFER OF
PROFF, BY MEANS OF A BRIEF STATEMENT ON THE RECORD DESCRIBING THE
TESTIMONY EXCLUDED.
(4) WHEN TWO OR MORE PARTIES HAVE SUBSTANTIALLY SIMILAR INTERESTS AND
LIMIT THE NUMBER OF ATTORNEYS OR OTHER PARTY REPRESENTATIVES WHO WILL BE
PERMITTED TO CROSS-EXAMINE AND TO MAKE AND ARGUE MOTIONS AND OBJECTIONS
ON BEHALF OF THOSE PARTIES. ATTORNEYS MAY, HOWEVER, ENGAGE IN
CROSS-EXAMINATION RELEVANT TO MATTERS NOT ADEQUATELY COVERED BY PREVIOUS
CROSS-EXAMINATION.
(5) RULINGS OF THE PRESIDING OFFICER ON THE ADMISSIBILITY OF EVIDENCE
OR TESTIMONY, THE PROPRIETY OF CROSS-EXAMINATION, AND OTHER PROCEDURAL
MATTERS SHALL APPEAR IN THE RECORD AND SHALL CONTROL FURTHER
PROCEEDINGS, UNLESS REVERSED AS A RESULT OF AN INTERLOCUTORY APPEAL
TAKEN UNDER SECTION 124.90.
(6) ALL OBJECTIONS SHALL BE MADE PROMPTLY OR BE DEEMED WAIVED.
PARTIES SHALL BE PRESUMED TO HAVE TAKEN EXCEPTION TO AN ADVERSE RULING.
NO OBJECTION SHALL BE DEEMED WAIVED BY FURTHER PARTICIPATION IN THE
HEARING.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 214 OF 225
COSTLE DM ADMINISTRATOR
EPA
113713
REGULATIONS
SECTION 124.86 MOTIONS.
(A) ANY PARTY MAY FILE AS MOTION (INCLUDING A MOTION TO DISMISS A
PARTICULAR CLAIM ON A CONTESTED ISSUE), WITH THE PRESIDIGN OFFICER ON
ANY MATTER RELATING TO THE PROCEEDING. ALL MOTIONS SHALL BE IN WRITING
AND SERVED AS PROVIDED IN SECTION 124.80 EXCEPTTHOSE MADE ON THE RECORD
DURING AN ORAL HEARING BEFORE THE PRESIDING OFFICER.
(B) WITHIN 10 DAYS AFTER SERVICE OF ANY WRITTEN MOTION, ANY PART TO
THE PROCEEDINGS MAY FILE A RESPONSE TO THE MOTION. THE TIME FOR
RESPONSE MAY BE SHORTENED TO 3 DAYS OR EXTENDED FOR AN ADDITIONAL 10
DAYS BY THE PRESIDING OFFICER FOR GOOD CAUSE SHOWN.
(C) NOTWITHSTANDING SECTION 122.52, ANY PARTY MAY FILE WITH THE
PRESIDING OFFICER A MOTION SEEKING TO APPLY TO THE PERMIT ANY REGULATORY
OR STATUTORY PROVISION UNLESS HE OR SHE FINDS IT CONTRARY TO LEGISLATIVE
INTENT. THE PRESIDING OFFICER MAY GRANT A MOTION TO APPLY A NEW
REGULATORY REQUIREMENT WHEN APPROPRIATE, TO CARRY OUT THE PURPOSE OF
CWA, AND WHEN NO PARTY WOULD BE UNDULY PREJUDICED THEREBY.
(A) ALL ORDERS ISSUED BY THE PRESIDING ARGUMENTS, WRITTEN STATEMENTS
OF POSITION, WRITTEN DIRECT AND REBUTTAL TESTIMONY, AND ANY OTHER DATA,
STUDIES, REPORTS, DOCUMENTATION, INFORMATIONAND OTHER WRITTEN MATERIAL
OF ANY KIND SUBMITTED IN THE PROCEEDINGS SHALL BE A PART OF THEHEARING
RECORD AND SHALL BE AVAILABLE TO THEPUBLIC EXCEPT AS PROVIDED IN SECTION
122.19, IN THE OFFICE OF THEREGIONAL HEARING CLERK, AS SOON AS IT IS
RECEIVED IN THAT OFFICE.
(B) EVIDENTIARY HEARINGS SHALL BE EITHER STENOGRAPHICALLY REPORTED
VERBATIM OR TAPE RECORDED, AND THEREUPON TRANSCRIBED. AFTER THE
HEARING, THE REPORTER SHALL CERTIFY AND FILE WITH THE REGIONAL HEARING
CLERK:
(1) THE ORIGINAL OF THE TRANSCRIPT, AND
(2) THE EXHIBITS RECEIVED OR OFFERED INTO EVIDENCE AT THE HEARING.
(F) THE REGIONAL HEARING CLERK SHALL PROMPTLYNOTIFY EACH OF THE
PARTIES OF THE FILING OF THE CERTIFIED TRANSCRIPT OF PROCEEDINGS. ANY
PARTY WHO DESIRES A COPY OF THE TRANSCRIPT OF THE HEARING MAY OBTAIN A
COPY OF THE HEARING TRANSCRIPT FROM THE REGIONAL HEARING CLERK UPON
PAYMENT OF COSTS.
(D) THE PRESIDING OFFICER SHALL ALLOW WITNESSES, PARTIES, AND THEIR
COUNSEL AN OPPORTUNITY TO SUBMIT SUCH WRITTEN PROPOSED CORRECTIONS OF
THE TRANSCRIPT OF ANY ORAL TESTIMONY TAKEN AT THE HEARING POINTING OUT
ERRORS THAY MAY HAVE BEEN MADE IN TRANSCRIBING THE TESTIMONY, AS ARE
REQUIRD TO MAKE THE TRANSCRIPT CONFORM TO THE TESTIMONY. EXCEPT IN
UNUSUAL CASES, NO MORE THAN 30 DAYS SHALL BE ALLOWED FOR SUBMITTING SUCH
CORRECTIONS FROM THEDAY A CIMPLETE TRANSCRIPT OF THE HEARING BECOMES
AVAIALBLE.
WITHIN 45 DAYS AFTER THE CERTIFIED TRANSCRIPT IS FILED, ANY PARTY MAY
FILE WITH THE REGIONAL HEARING CLERK PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW AND A BRIEF INSPPORT THEREOF. BREIFS SHALL CONTAIN
APPROPRIATE REFERENCES TOTE RECORD. A COPY OF THESE FINDINGS,
CONCLUSIONS, AND BRIEF SHALL BE SERVED UPON ALL THE OTHER PARTIES AND
THE PRESIDING OFFICER. THE PRESIDING OFFICER, FOR GOOD CAUSE SHOWN, MAY
EXTEND THE TIME FOR FILING THE PROPOSED FINDINGS AND CONCLUSIONS AND/OR
THE BRIEF. THE PRESIDING OFFICER MAY ALLOW REPLY BRIEFS.
(A) THE PRESIDING OFFICER SHALL REVIEW AND EVALUATE THE RECORD,
INCLUDING THE PROPOSD FINDINGS AND CONCLUSIONS, ANY BRIEFS FILED BY THE
PARTIES, AND ANY INTERLOCUTORY DECISIONS UNDER SECTION 124.90 AND SHALL
ISSUE AND FILE HIS INITIAL DECISION WITH THE REGIONAL HEARING CLERK.
THEREGIONAL HEARING CLERK SHALL IMMEDIATELY SERVE COPIES OF THE INITIAL
DECISION UPON ALL PARTIES (OR THEIR COUNSEL OF RECORD) AND THE
ADMINISTRATOR.
(B) THE INITIAL DECISION OF THE PRESIDING OFFICERSHALL AUTOMATICALLY
BECOME THE FINAL DECISION 30 DAYS AFTER ITS SERVICE UNLESS WITHIN THAT
TIME:
(A) A PARTY FILES A PETITION FOR REVIEW BY THE ADMINISTRATOR
PURSUANTTO SECTION 124.91; OR
(2) THE ADMINISTRATOR SUA SPONTE FILES A NOTICE THAT HE OR SHE WIL
REVIEW THE DECISION PURSUANT TO SECTION 124.91.
(A) EXCEPT AS PROVIDED IN THIS SECTION, APPEALS TO THE
ADMINISTRATORMAY BE TAKEN ONLY UNDER SECTION 124.91. APPEALS FROM
ORDERS OR RULINGS MAY BE TAKEN UNDERTHIS SECTION ONLY IF THE PRESIDING
OFFICER, UPON MOTION OF A PARTY, CERTIFIES THOSE ORDERS OR RULINGS OT
THE ADMINISTRATOR FOR APPEAL ON THE RECORD. REQUESTS TO THE PRESIDING
FOFICER FOR CERTIFICATON MUST BE FILED IN WRITING WITHIN 10 DAYS OF
SERVICE OF NOTICE OF THEORDER, RULING, OR DECISION AND SHALL STATE
BRIEFLY THE GROUNDS RELIED ON.
(B) THE PRESIDING OFFICER MAY CERTIFY AN ORDEROR RULING FOR APPEAL TO
THE ADMINISTRATOR IF:
(1) THE ORDER OR RULING INVOLVES AN IMPORTANT QUESTION ON WHICH THERE
IS SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION AND
(2) EITHER.
(I) AN IMMEDIATE APPEAL OF THE ORDER OR RULING WILLMATERIALLY
ADVANCE THE ULTIMATE COMPLETION OF THEPROCEEDING; OR
(II) A REVIEW AFTER THE FINAL ORDER IS ISSUED WILL BE INADEQUATE OR
INEFFECTIVE.
(C) IF THE ADMINSTRATOR DECIDES THAT CERTIFICATON WAS IMPROPERLY
GRANTED, HE OR SHE SHALL DECLINE TO EHAR THE APPEAL. THE ADMINISTRATOR
SHALL ACCEPT OR DECLINE ALL INTERLOCUTORY APPEALS WITHIN 30 DAYS OF
THEIR SUBMISSION; IF THE ADMINISTRATOR TAKES NO ACTION WITHIN THAT
TIME, THE APPEAL SHALL BE AUTOMATICALLY DISMISSED. WHEN THE PRESIDING
OFFICER DECLINES TO CERTIFY AN ORDER OR RULING TO THE ADMINISTRATOR FOR
AN INTERLOCUTORY APPEAL, IT MAY BE REVIEWED BY THE ADMINISTRATOR ONLY
UPON APPEAL FROM THE INITIAL DECISION OF THE PRESIDING OFFICER, EXCEPT
WHEN THE ADMINISTRATOR DETERMINES, UPON MOTION OF A PARTY AND IN
EXCEPTIONAL CIRCUMSTANCES, THAT THE DELAY REVIEW WOULD NOT BE IN
THEPUBLIC INTEREST. SUCH MOTION SHALL BE MADE WITHIN 5 DAYS AFTER
RECEIPT OF NOTIFICATION THAT THE PRESIDING OFFICER HAS REFUSED TO
CERTIFY AN ORDER OR RULING FOR INTERLOCUTORY APPEAL TO THE
ADMINISTRAOTR. ORDINARILY, THE INTERLOCUTORY APPEAL WILL BE DECIDED ON
THE BASIS OF THE SUBMISSIONS MADE TO THE PRESIDING OFFICER. THE
ADMINISTRATOR MAY, HOWEVER, ALLOW BRIEFS AND ORAL ARGUMENT.
(D) IN EXCEPTIONAL CIRCUMSTANCES, THE PRESIDING OFFICERMAY STAY THE
PROCEEDING PENDING A DECISION BY THE ADMINISTRATOR UPON AN ORDEROR
RULING CERTIFIED BY THE PRESIDING OFFICER FOR AN INTERLOCUTORY APPEAL,
OR UPON THEDENIAL OF SUCH CERTIFICATION BY THE PRESIDING OFFICER.
(E) THE FAILURE TO REQUEST AN INTERLOCUTORY APPEAL SHALL NOT PREVENT
TAKING EXCEPTION TO AN ORDER OR RULING IN AN APPEAL UNDER SECTION
124.91.
(A)(1) WITHIN 30 DAYS AFTER SERVICE OF AN INITIAL DECISION, OF A
DENIAL IN WHOLE OR IN PART OF A REQUEST FOR AN EVIDENTIARY HEARING, ANY
PARTY OR REQUESTER, AS THECASE MAY BE, MAY APPEAL ANY MATTER SET FORTH
IN THE INITIAL DECISION OR DENIAL OR ANY ADVERSE ORDER OR RULING TO
WHICH THE PARTY OBJECTED DURING THE HEARING, BY FILING WITH THE
ADMINISTRATOR NOTICE OF APPEAL AND PETITION FOR REVIEW. THE PETITION
SHALL INCLUDE A STATEMENT OF THE APPROPRIATE, A SHOWING THAT THE INITIAL
DECISION CONTAINS:
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 215 OF 225
COSTLE DM ADMINISTRATOR
EPA
113714
REGULATIONS
(I) A FINDING OF FACT OR CONCLUSION OF LAW WHICH IS CLEARLY
ERRNOEOUS, OR
(II) AN EXERCISE OF DISCRETION OR POLICY WHICH IS IMPORTANT AND WHICH
THE ADMINISTRATOR SHOULD REVIEW.
(2) WITHIN 15 DAYS AFTER SERVICE OF A PETITION FOR REVIEW UNDER
PARAGRAPH (A)(1) OF THIS SECTION, ANY OTHER PARTY TO THE PROCEEDING MAY
FILE A RESPONSIVEL PETITION.
(3) POLICY DECISIONS MADE OR LEGAL CONCLUSIONS DRAWN IN THECOURSE OF
DENYING A REQUEST FOR AN EVIDENTIARY HEARING MAY BE REVIEWED AND CHNAGED
BY THE ADMINISTRATOR IN AN APPEAL UNDER THIS SECTION.
(B) WITHIN 30 DAYS OF AN INITIAL DECISION OR DENIAL OF A REQUEST FOR
AN EVIDENTIARY HEARING THE ADMINISTRATOR MAY, SUA SPONTE, REVIEW SUCH
DECISION. WITHIN 7 DAYS AFTER THE ADMINISTRATOR HAS DECIDED UNDER THIS
SECTIN TO REVIEW AN INITIAL DECISION OR THE DENIAL OF A REQUEST FOR AN
EVIDENTIARY HEARING, NOTICE OF THAT DECISION SHALL BE SERVED BY MAIL
UPON ALL AFFECTED PARTIES AND THE REGIONAL ADMINISTRATOR.
(C)(1) WITHIN A REASONABLE TIME FOLLOWING THE FILING OF THE PETITION
FOR REVIEW, THE ADMINISTRATOR SHALL ISSUE AN ORDER EITHER GRANTING OR
DENYING THE PETIION FOR REVIEW. WHEN THE ADMINISTRATOR GRANTS A
PETITION FOR REVIEW OR DETERMINES UNDER PARAGRAPH (B) OF THIS SECTION TO
REVIEW A DECISION, THE ADMINISTRATOR MAY NOTIFY THE PARTIES THAT ONLY
CERTAIN ISSUES SHALL BE FRIEFED.
(2) UPON GRANTING A PETITION FOR REIVEW, THE REGIONAL HEARING CLERK
SHALL PROMPTLY FORWARD A COPY OF THE RECORD TO THE JUDICIAL OFFICER AND
SHALL RETAIN A COMPLETE DUPLICATE COPY OF THE RECORD IN THE REGIONAL
OFFICE.
(D) NOTWITHSTANDING THE GRANT OF A PETITION FOR REVIEWOR A
DETERMINATION UNDERPARAGRAPH (B) OF THIS SECTION TO REVIEW A
DECISION,THE ADMINISTRATOR MAY SUMMARILY AFFIRM WITHOUT OPINION AN
INITIAL DECISION OR THE DENIAL OF A REQUEST FOR AN EVIDENTIARY HEARING.
(E) A PETITION TO THE ADMINISTRATOR UNDER PARAGRAPH (A) OF THIS
SECTION FOR REVIW OF ANY INITIAL DECISION OR THE DENIAL OF AN
EVIDENTIARY HEARING IS, UNDER 5 U.S.C . SECITON 704, A PREREQUISITE TO
THE SEEKING OF JUDICIAL REVIEW OF THE FINAL DECISION OF THE AGENCY.
(F) IF A PARTY TIMELY FILES A PETITION FOR REVIEW OR IF THE
ADMINISTRATOR SUA SPONTE ORDERS REVIEW, THEN, FOR PURPOSES OF JUDICIAL
REVIEW, FINAL AGENCY ACTION ON AN ISSUE OCCURS AS FOLLOWS:
(1) IF THE ADMINISTRATOR DENIES REVIEW OR SUMMARILY AFFIRMS,
WITHOUT OPINION AS PROVIDED I SECTION 124.91(D), THEN THE INITIAL
DECISION OF DENIAL BECOMES THE FINAL AGENCY ACTION AND OCCURS
UPON THE SERVICE OFNOTICE OF THE ADMINISTRATOR'S ACTION.
(2) IF THE ADMINISTRATOR ISSUES A DECISION WITHOUT REMANDING TH
PROCEEDING THEN THE FINAL PERMIT, REDRAFTED AS REQUIRED BY THE
ADMINISTRATR'S ORIGINAL DECISION, SHALL BE REISSUED AND SERVED UPON ALL
PARTIES TO THE APPEAL.
(3) IF THE ADMINISTRATOR ISSUES A DECISION REMANDING THE PROCEEDING,
THEN FINAL AGENCY ACTION OCCURS UPON COMPLETION OF THE REMANDED
PROCEEDING, COMPLETION OF THE REMANDED PROCEEDING, INCLUDING ANY APPEALS
TO THE ADMINISTRATOR FROM THE RESULTS OF THE REMANDED PROCCEEDING.
(G) THE PETITIONER MAY FILE A BRIEF IN SUPPORT OF THE PETITION WITHIN
21 DAYS AFTER THE ADMINISTRATOR HAS GRANTED A PETITION FOR REVIEW. ANY
OTHER PARTY MAY FILE A RESPONSIVE BRIEF WITHIN 21 DAYS OF SERVICE OF THE
PTITIONER'S BRIEF. THE PETITIONER THEN MAY FILE A REPLY BRIEF WITHIN 14
DAYS OF SERVICE OF TEH RESPONSIVE BRIEF. ANY PERSON MAY FILE AN AMICUS
BRIEF FOR THE CONSIDERATION OF THE ADMINISTRATOR WITHIN THESAME TIME
PERIODS THAT GOVERN REPLY BRIEFS. IF THE ADMNISTRATOR DETERMINES, SUA
SPONTE, TO REVIEW AN INITIAL REGIONAL ADMINISTRATOR'S DECISION OR
THEDENIAL OF A REQUEST FOR AN EVIDENTIARY HEARING, THE ADMINISTRATOR
SHALL NOTIFY THEPARTIES OF THE SCHEDULE FOR FILING BRIEFS.
(H) REVIEW BY THE ADMINISTRATOR OF AN INITIAL DECISION OR THE DENIAL
OF AN EVIDENTIARY HARING SHALL BE LIMITED TO THE ISSUES SPECIFIED UNDER
PARAGRAPH (A) OF THIS SECTION, EXCEPT THAT AFTER NOTICE TO ALL PARTIES,
THE ADMINISTRATOR MAY RAISE AND DECIDE OTEHR MATERS WHICH HE OR SHE
CONSIDERS MATERIAL ON THE BASIS OF THE RECORD.
(A) EXCEPT AS SET FORTH INTHIS SUBPART, THIS SUBPART APPLIES IN LIEU
OF, AND TO COMPLETE EXCLUSION OF, SUBPARTS A THROUGH E IN THE FOLLOWING
CASES:
(1)(I) IN ANY PROCEEDINGS FOR THE ISSUANCE OF ANY NPDES PERMIT WHICH
CONSTITUTES "INITIAL LICENSING" UNDER THE ADMINISTRATIVE PROCEDURE ACT,
WHEN THE REGIONAL ADMINISTRATOR ELECTS TO APPLY THIS SUBPART AND
EXPLICITLY SO STAES IN THE PUBLIC NOTICE OF THE DRAFT PERMIT UNDER
SECTION 124.10 OR IN A SUPLEMENTAL NOTICE UNDER SECTION 124.14, IN AN
NPDES DRAFT PERMIT IS PROCESSED UNDER THIS SUBPART, ANY OTHER DRAFT
PERMITS WHICH HAVE BEEN CONSOLIDATED WITH THENPDES DRAFT PERMIT UNDER
SECTION 124.4 SHALL LIKEWISE BE PROCESSED UNDER THIS SUBPART, EXCEPT FOR
PSD PERMITS WHEN THE REGIONAL ADMINISTRATOR MAKES A FINDING UNDER
SECTION 124.4 (E) THAT CONSOLIDATION WOULD BE LIKELY TO RESULT IN
MISSING THE ONE YEAR STATUTORY DEADLINE FOR ISSUING AFINAL PSD PERMIT
UNDER THE CAA.
("INITIAL LICENSING" INCLUDES BOTH THEFIRST DECISION ON AN NPDES
PERMIT APPLIED FOR BY A DISCHARGER THAT HAS NOT PREVIOSLY HELD ONE ANY
VARIANCE REQUETED BY A DISCHARGER.
(III) TO THE EXTENT THIS SUBPART IS USED TO PROCESS A REQUEST FOR A
VARIANCE UNDER CWA SECTION 301(H), THE TERM "ADMINISTRAOR OR A PERSON
DESIGNATED BY THE ADMINISTRATOR" SHALL BE SUBSTITUTED FOR THE TERM
"REGIONAL ADMINISTRATOR".
(2) IN ANY PROCEEDING FOR WHICH A HEARING UNDER THIS SUBPART WAS
GRANTED UNDER SECTION 124.75 FOLLOWING A REQUEST FOR A FORMAL HEARING
UNDER SECTION 124.74, SEE SECTIONS 124, 74(C)(8) AND 124.75(A)(2).
(3) WHENEVER THE REGIONAL ADMINISTRATOR DETERMINES AS A MATTER OF
DISCRETION THAT THE MORE FORMALIZED MECHANISMS OF THE SUBPART SHOULD BE
USED TO PROCESS DRAFT NPDES GENERAL PERMITS (FOR WHICH EVIDENTIARY
HEARINGS ARE UNAVAILABLE UNDER SECTION 124.71), OR DRAFT RCRA OR DRART
UIC PERMITS.
(B) EPA SHALL NOT APPLY THESE PROCEDURES TO A DECISIONON A VARIANCE
WHERE SUPBART E PROCEEDINGS ARE SIMULTANEOUSLY PENDING ON THE OTHER
CONDITIONS OF THE PERMIT. SEE SECTION 124.64(B).
A THROUGH E APPLY TO PROCEEDINGS UNDER THIS SUBPART.
(A)(1) SECTIONS 124.1 THROUGH 124.10.
(2) SECTION 124.14 "REOPENING OF COMMENT PERIOD."
(3) SECTION 124.16 "STAYS OF CONTESTED PERMIT CONDITIONS"
(4) SECTION 124.20 "COMPUTATION OF TIME."
(B)(1) SECTION 124.41 "DEFINITIONS APPLICABLE TO PDS PERMITS."
(2) SECTION 124.42 "ADDITIONAL PROCEDURES FOR PDS PERMIST AFFECTIN
CLAS I AREAS."
(C)(1) SECTIONS 124.51 THROUGH 124.56.
(2) SECTION 124.51 THROUGH 124.56
(2) SECTION 124.57(C) "PUBLIC NOTICE."
(3) SECTIONS 124.58 THROUGH 124.66.
(D)(1) SECTION 124.72 "DEFINITIONS,"EXCEPT FOR THE DEFINITION OF
"PRESIDING OFFICER," SEE SECTION 124.119.
(2) SECTION 124.73 "FILING."
(3) SECTION 124.78 "EX PARTE COMMUNICATIONS."
(4) SECTION 124.80 "FILING AND SERVICE."
(5) SECTON 124.85(A) (BURDEN OF PROFF).
(6) SECTION 124.86 "MOTIONS."
(7) SECTIONS 124.87 "RECORD OF HEARINGS."
(8) SECTION 124.90 "INTERLOCUTORY APPEAL."
(E) IN THE CASE OF PERMITS TO WHICH THIS SUBPART IS MADE APPLICABLE
AFTER A FINAL PERMIT HAS BEEN ISSUED UNDER SECTION 124.15, PERMIT HAS
BEEN ISSUED UNDER SECTION 124.15, EITHER BY THE GRANT UNDER SECTION
124.75 OF A HEARING REQUEST UNDER SECTION 124.74, OR BY NOTICE OF
SUPPLEMENTAL PROCEDINGS UNDER SECTION 124.14, SECTION 124.13 AND 124.76
SHALL ALSO APPLY.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 216 OF 225
COSTLE DM ADMINISTRATOR
EPA
113715
REGULATIONS
PUBLIC NOTICE OF ADRAFT PERMIT UNDER THIS SUBPART SHALL BE GIVEN AS
PROVIDED IN SECTIONS 124.10 AND 124.57. AT THE DISCRETION OF
THEREGIONAL ADMINISTRATOR THER PUBLIC COMMENT PERIOD SPECIFIED IN THIS
NOTICE MAY INCLUDE AN OPPORTUNITY FOR A PUBLIC HEARINGS UNDERSECTION
124.12.
(A) BY THE CLOSE OF THE COMMENT PERIOD UNDER SECTION 124.113, ANY
PERSON MAY REQUEST THE REGIONAL ADMINISTRATOR TO HOLD A PANEL HEARING ON
THE DRAFT PERMIT BY SUBMITTING A WRITTEN REQUEST CONTAINING THE
FOLLOWING.
(1) A BRIEF STATEMENT OF THE INTEREST OF THE PERSON REQUESTING
THE HEARING.
(2) A STATEMENT OF ANY OBJECTIONS TO THE DRAFT PERMIT;
(3) A STATEMENT OF THE ISSUES WHICH SUCH PERSON PROPOSES TO RAISE FOR
CONSIDERATION AT THE HEARING;AND
(4) STATEMENTS MEETING THE REQUIREMENTS OF SECTION 124.74(C)(1)-(5).
(B) WHENEVER (1) A WRITTEN REQUEST SATISFYING THE REQUIREMENTS OF
PARAGRAPH (A) OF THIS SECTION HAS BEEN RECEIVED AND PRESENTS GENUINE
ISSUES OF MATERIAL FACT, OR (2) THE REGIONAL ADMINISTRATOR DETERMINES
SUA SPONTE THAT A HEARING UNDER THIS SUBPART IS NECESSARY OR
APPROPRIATE, THE REGIONAL ADMINISTRATOR SHALL NOTIFY EACH PERSON
REQUESTING THE HEARING AND THE APPLICANT, AND SHALL PROVIDE PUBLIC
NOTICE UNDER SECTION 124.57(C). IF THE REGIONAL ADMINISTRATOR
DETERMINES THAT A REQUEST DOES NOT MEET THE REQUIREMENTS OF PARAGRAPH
(A) OF THIS SECTION OR DOES NOT PRESENT GENUINE ISSUES OF FACT, THE
REGIONAL ADMINISTRATOR MAY DENY THERE QUEST FOR THE HEARING AND SHALL
SERVE WRITTEN NOTICE OF THAT DETERMINATION ON ALL PERSON REQUESTING THE
HEARING.
(C) THE REGIONAL ADMINISTRATOR MAY ALSO DECIDE BEFORE A DRAFT PERMIT
IS PREPARED UNDER SECTION 124.6 THAT A HEARING SHOULD BE HELD UNDER THIS
SECTION. IN SUCH CASES, THE PUBLIC NOTICE OF THE FRAFT PERMIT SHALL
EXPLICITLY SO DATE AND SHALL CONTAIN THE INFORMATION REQUIRED BY SECTION
124.57(C). THIS NOTICE MAY ALSO PROVIDE FOR A HEARING UNDER SECTION
124.12 BEFORE A HEARING IS CONDUCTED UNDER THIS SECTION.
IF NO REQUEST FOR A HEARING IS MADE UNDER SECTION 124.114, OR IF ALL
SUCH REQUIEST ARE DENIED UNDER THAT SECTION, THE REGIONAL ADMINISTRATOR
SHALL THEN PREPARE A RECOMMENDED DECISION UNDER SECTION 125.124. ANY
PERSON WHOSE HEARING REQUEST HAS BEEN DENIED MAY THEN APPEAL THAT
RECOMMENDED DECISION TO THE ADMINISTRATOR AS PROVIDED IN SECTIN 124.91.
(A) UPON GRANTING A REQUEST FOR A HEARING UNDER SECTION 124.114 THE
REGIONAL ADMINISTRATOR SHALL PROMPTLY PUBLSIH A NOTICE OF THE HEARING AS
REQUIRED UNDER SECTION 124.57(C). THE MAILED NOTICE SHALL INCLUDE A
STATEMENT WHICH INDICATES WHETHER THE PRESIDING OFFICER OR THE REGIONAL
ADMINISTRATOR WILL ISSUE THE RECOMMENDED DECISION. THE MAILED NOTICE
SHALL ALSO ALLOW THE PARTICIPANTS AT LEAST 30 DAYS TO SUBMIT WRITTEN
COMMENTS AS PROVIDED UNDER SECTION 124.118.
(B) THE REGIONAL ADMINISTRATOR MAY ALSO GIVE NOTICE OF A HEARING
UNDER THIS SECTION AT THE SAME TIME AS NOTICE OF A DRAFT PERMIT UNDER
SECTION 124.113. IN THAT CASE THE COMMENT PERIODS UNDER SECTION
124.113, IN THAT CASE THE COMMENT PERIODS UNDER SECTIONS 124.113 AND
124.118 SHALL BE MERGED AND HELD AS A SINGLE PUBLIC COMMENT PERIOD.
(C) THE REGIONAL ADMINISTRATOR MAY ALSO GIVE NOTICE OF HEARING UNDER
THIS SECTION IN RESOPNSE TO A HEARING REQUEST UNDER SECTION 124.74 AS
PROVIDED IN SECTION 124.75.
(A) PERSONS DESIRING TO PARTICIPATE IN ANY HEARING NOTICED UNDER THIS
SECTION, SHALL FILE A REQUEST T PARTICIPATE WITH THE REGIONAL HEARING
CLERK BEFORE THE DEADLINE SET FORTH IN THE NOTICE OF THE GRANT OF THE
HEARING. ANY PERSON FILING SUCH A REQUEST BECOMES A PARTY TO THE
PROCEEDINGS WITHIN THE MEANING OF THE ADMINISTRATIVE PROCEDUREACT. THE
REQUEST SHALL INCLUDE:
(1) A BRIEF STATEMENT OF THE INTEREST OF THE PERSON IN THE
PROCEEDING:
(2) A BRIEF OUTLINE OF THE POINTS TO BE ADDRESSED;
(3) AN ESTIMATE OF THE TIME REQUIRED; AND
(4) THE ERQUIREMENTS OF SECTION 124.7(C)(1)-(5).
(5) IF THE REQUST IS SUBMITTED BY AN ORGANIZATION, A NONBINDING LIST
OF THE PERSONS TO TAKE PARTN THE PRESENTATION.
(B) AS SOON AS PRACTICABLE, BUT IN NO EVENT LATER THEN 2 WEEKS BEFORE
THE SCHEDULED DATE OF THE HERAING, THE PRESIDING OFFICER SHALL MAKE A
HEARING SCHEDULE AVAILABLE TO THE PUBLIC AND SHALL MAIL IT TO EACH
PERSON WHO REQUESTED TO PARTICIPATE IN THE HEARING.
(A) NOT LATER THAN 30 DAYS BEFORE THE SCHEDULED START OF THE HEARING
(OR SUCH OTHER DATE AS MAY BE SET FORTH IN THE NOTICE OF HEARING), EACH
PARTY SHALL FILE ALL OF ITS COMMENTS ON THE DRAFTPERMIT, BASED ON
INFORMATION IN THE ADMINISTRATIVE RECORD AND ANY OTHER INFORMATION WHICH
IS OR REASONABLY COULD HAVE BEEN AVAILALBE TO THAT PARTY. ALL COMMENTS
SHALL INCLUDE ANY AFFIDAVITS, STUDIES, DATA, TESTS, OR OTHER MATERIALS
RELIED UPON FOR MAKING ANY FACTUAL STATEMENTS IN THE COMMENTS.
(B)(1) WRITTEN COMMENTS FILED UNDER PARAGRAPH (A) OF THIS SECTION
SHALL CONSTITUTE THE BULK OF THEEVIDENCE SUBMITTED AT THE HERAING. ORAL
STATEMENTS AT THE HERAING SHOULD BE BRIEF AND IN THE NATURE OF ARGUMENT.
THEY SHALL BE RESTRICTED EITHER TO POINTS THAT COULD NOT HAVE BEEN MADE
IN WRITTEN COMMENTS, OR TO EMPHASIZE POINTS WHICH AREMADE IN THE
COMMENTS, BUT WHICH THE PARTY BELIEVES CAN MORE EFFECTIVELY BE ARGUED IN
THE HEARING CONTEXT.
(2) NOTWITHSTANDING THE FOREGOING, WITHIN TWO WEEKS PRIOR TO THE
DEADLINE SPECIFIED IN PARAGRAPH (A) OF THIS SECTION FOR THE FILING OF
COMMENTS, ANY PARTY MAY MOVE TO SUBMIT ALL OR PART OF ITS COMMENTS
ORALLY AT THE HEARING IN LIUE OF SUBMITTING WRITTEN COMMENTS AND THE
PRESIDING OFFICER SHALL, WITHIN ONE WEEK, GRANT SUCH MOTION IF
THERESIDING OFFICER FINDS THAT THE PARTY WILL BE PREJUDICED IF REQUIRED
TO SUBMIT THE COMMENTS IN WRITTEN FORM.
(A)(1)(I) BEFORE GIVING NOTICE OF A HEARING UNDER THIS SUBPART IN A
PROCEEDING INVOLVING AN NPDES PERMIT, THE REGIONAL ADMINISTRATOR SHALL
REQUEST THAT THE CHIEF ADMINISTRATIVE LAW JUDGE ASSIGN AN ADMINISTRATIVE
LAW JUDGE AS THE PRESIDING OFFICER. THE CHIEF ADMINISTRATIVE LAW JUDGE
SHALL THEN MAKE THE ASSIGNMENT.
(II) IF ALL PARTIES TO SUCH A HEARING WAIVE IN WRITING THEIR
STATUTORY RIGHT TO HAVE AN ADMINISTRATIVELAW JUDGE NAMED AS THE
PRESIDING OFFICER IN A HEARING SUBJECT TO THIS SUBPARAGRAPH THE REGIONAL
ADMINISTRATOR MAY NAME A PRESIDING OFFICERUNDERPARAGRAPH (A)(2)(II) OF
THIS SECTION.
(2) BEFORE GIVING NOTICE OF A HEARING UNDER THIS SUBPART IN A
PROCEEDING WHICH DOES NOT INVOLVE AN NPDES PERMIT OR A RCRA PERMIT
TERMINATION, THE REGIONAL ADMINISTRATOR SHALL EITHER:
(I) REQUEST THAT THE CHIEF ADMINISTRATIVE LAW JUDGE ASSIGN AN
ADMINISTRATIVE LAW JUDGE AS THE PRESIDING OFFICER. THE CHIEF
ADMINISTRATIVE LAW JUDGE MAY THEREUPON MAKE SUCH AN ASSIGNMENT IF HE
CONCLUDES THATTHE OTHER DUTIES OF HIS OFFICE ALLOW, OR
(II) NAMES A LAWYER PERMANENTLY OR TEMPORARILY EMPLOYED BY THE AGENCY
AND WITHOUT PRIOR CONNECTION WITH THE PROCEEDING TO SERVE AS PRESIDING
OFFICER:
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 217 OF 225
COSTLE DM ADMINISTRATOR
EPA
113716
REGULATIONS
(III) IF THE CHIEF ADMINISTRATOR LAW JUDGE DECLINES TO NAME AN
ADMINISTRATIVE LAW JUDGE AS PRESIDING OFFICER UPON RECEIVING A REQUEST
UNDER SUBPARAGRAPH (2)(I) OF THIS SECTION, THE REGIONAL ADMINISTRATOR
SHALL NAME A PRESIDING OFFICER UNDER PARAGRAPH (A)(2)(II) OF THIS
SECTION.
(B) IT SHALL BE THE DUTY OF THE PRESIDING OFFICER TO CONDUCT A FAIR
AND IMPARTIAL HEARING. THE PRESIDING OFFICER TO CONDUCT A FAIR AND
IMPARTIAL HEARING. THE PERSIDING OFFICER SHALL HAVE THE AUTHORITY.
(1) CONFERRED BY SECTION 124.85(B)(1)-(15), SECTION 124.83(B) AND
(C), AND ;
(2) TORECEIVE RELEVANT EVIDENCE, PROVIDED THATALL COMMENTS UNDER
SECTIONS 124.113 AND 124.118, THE REORD OF THE PANEL HEARING UNDER
SECTION 124.120, AND THE ADMINISTRATIVE RECORD, AS DEFINED IN SECTION
124.9 OR IN SECTION 124.18 AS THE CASE MAY BE SHALL BE RECEIVED IN
EVIDENCE, AND
(3) EITHER UPON MOTION OF SUA SPONTE, TO CHANGE THE DATE OF THE
HERAING UNDER SECTION 124.120, OR TO RECESS SUCH A HEARING UNTIL A
FUTURE DATE. IN ANY SUCH CASE THE NOTICE THE NOTICE REQUIRED BY SECTION
124.10 SHALL BE GIVEN.
(A) PRESIDING OFFICERSHALL PRESIDE AT EACH HEARING HELD UNDER THIS
SUPBART, AN EPA PANEL SHALL ALSO TAKE PART IN THE HEARING. THE PANEL
SHALL CONSIST OF THREE OR MORE EPA TEMPORARY OR PERMANENT EMPLOYEES
HAVING SPECIAL EXPERTISE OR RESPONSIBILITY IN AREAS RELATED TO THE
HEARING ISSUE, AT LEAST TWO OR WHOM SHALL HAVE NOT TAKEN PART IN WRITING
THE DRAFT PERMIT. IF APPRORPAITE FOR THE EVALUATION OF NEW OR DIFFERENT
ISSUES PRESENTED AT THE HEARING, THE PANEL MEMBERSHIP, AT THE DISCRETION
OF THE REGIONAL ADMINISTRATOR, MAY CHANGE OR MAY INCLUDE PERSONS NOT
EMPLOYED BY EPA.
(B) AT THE TIME OF THE HEARING NOTICE UNDER SECTION 124.116, THE
REGIONAL ADMINISTRATOR SHALL DESIGNATE THE PERSONS WHO SHALL SERVE AS
PENEL MEMBERS FOR THE HERAING AND THE REGIONAL ADMINISTRATOR SHALL FILE
WITH THE REGINAL HEARING CLERK THE NAME AND ADDRESS OF EACH PERSON SO
DESIGNATED. THE REGIONAL ADMINISTRATOR MAY ULSO DESIGNATE PERSONS SHALL
BE SUBJECT TOEHE EX PARTERULES IN SECTION 124.78. THEREGIONAL
ADMINISTRATOR MAY ALSO DESIGNATE AGENCY TRIAL STAFF AS DEFINED IN SECTIN
124.78 FOR THE HEARING.
(C) AT ANY TIME BEFORETHE CLOSE OF THE HEARING THEPRESIDING OFFICER,
AFTER CONSULTATION WITH THE PANEL, MAY REQUEST THAT ANY PERSON HAVING
KNOWLEDGE CONCERNING THEISSUES RAISED IN THE HEARING AND NOT THEN
SCHEDULED TO PARTICIPATE THEREIN APPEAR AND TESTIFY AT THE HEARING.
(D) THE PANEL MEMBERS MAY QUESTION ANY PERSON PARTICIPATING IN THE
PANEL HEARING. CROSS-EXAMINIATION BY PERSONS OTHER THAN PENEL
MEMBERSSHALLNOT BE PERMITTED AT THIS STAGE OF THE PROCEEDING EXCEPT WHEN
THE PRESIDING OFFICER DETERMINES, AFTER CONSULATIONS WITH THE PANEL,
THAT THE CROSS-EXAMINATION WOULD EXPEDITE CONSIDERATION OF THE ISSUES.
HOWEVER, THE PARTIES MAY SUBMIT WRITTEN QUESTIONS TO THE PRESIDING
OFFICER FOR THE PRESIDING TO ASK THE PARTICIPANTS, AND THE PRESIDING
OFFICER MAY AFTERCONSULTATION WITH THE PANEL, AND AT THIS OR HER SOLE
DISCRETION, ASK THESE QUESTION.
(E) AT ANY TIME BEFORE THE CLOSE OF THE HEARING, ANY PARTY SHALL
MAY SUBMIT TO THE PRESIDING OFFICER WRITTEN QUESTIONS
SPECIFICALY DIRECTED TO ANY PERSON APPEARING OR TESTIFYING IN THE
HEARING. THE PRESIDING OFFICER, AFTER CONSULTATION WITH THE
PANEL MAY, AT HIS SOLE DISCRETION, ASK THE WRITTEN QUESTION SO
SUBMITTED.
(F) WITHIN 10 DAYS AFTER THE CLOSE OF THE HEARING, ANY PARTY SHALL
SUBMIT SUCH ADDITIONAL WRITTEN TESTIMONY, AFFIDAVITS, INFORMATION, OR
MATERIAL AS THEY CONSIDER RELEVANT OR WHICH THE PANEL MAY REQUEST.
THESE ADDITIONAL SUBMISSIONS SHALL BE FILED WITH THE REGIONAL HEARING
CLERK AND SHALL BE A PART OF THE HEARING RECORD.
(A) ANY PARTY TO A PENL HEARING MAY SUBMIT A WRITTEN REQUEST TO
CROSS-EXAMINE ANY ISSUE OF MATERIAL FACT. THE MOTION SHALL BE SUBMITTED
TO THE PRESIDING OFFICER WITHIN 15 DAYS AFTER A FULL TRANSCRIPT OF THE
PANEL HEARING IS FILED WITH THE REGIONAL HEARING CLERK AND SHALL
SPECIFY:
(1) THE DISPUTED ISSUE(S) OF MATERIAL FACT. THIS SHALL INCLUDE AN
EXPLANATION OF WHY THE QUESTIONS AT ISSUE ARE FACTUAL RATHER THAN OF AN
ANALYTICAL OR POLICY NATURE, THE EXTENT TO WHICH THEY AREIN DISPUTE IN
LIGHT OF THE THEN-EXISTING RECORD, AND THE EXTENT TO WHICH THEY ARE
MATERIAL TO THE DECISION ON THE APPLICATION; AND
(2) THE PERSON(S) TO BE CROSS-EXAMINED, AND AN ESTIMATE OF THE TIME
NECESSARY TO CONDUCT THE CROSS-EXAMINATION. THIS SHALL INCLUDE A
STATEMENT EXPLAINING HOW THE CROSS-EXAMINATION WILL RESLVE THE DISPUTED
ISSUES OF MATERIAL FACT.
(B) AFTER RECEIPT OF ALL MOTIONS FOR CROSS-EXAMINATION UNDER
PARAGRAPH (A) OF THIS SECTION, THE PRESIDING OFFICER, AFTER CONSULTATION
WITH THE HEARING PANEL, SHALL PROMPTLY ISSUE AN ORDER EITHER GRANTING OR
DENYING EACH REQUEST. ORDERS GRATING OR DENYING EACH REQUEST. ORDERS
GRANTING REQUESTS FOR CROSS EXAMINATION SHALL BE SERVED ON ALL PARTIES
AND SHALL SPECIFY:
(1) THE ISSUES ON WHICH CROSS-EXAMINATION ON EACH ISSUE:
(3) THE PERSONS ALLOWED TO CONDUCT CROSS-EXAMINATION;
(4) TIME LIMITS FOR THE EXAMINATION OF WITNESSES BY EACH BY EACH
CROSS-EXAMINER; AND
(5) THE DATE, TIME, AND PLACE OF THE SUPPLEMENTARY HEARING AT WHIC
CROSS-EXAMINATION SHALL TAKE PLACE.
(C) IN ISSUING THIS ORDER, THE PRESIDING OFFICER MAY DETERMINE THAT
TWO OR MORE PARTIES HAVE THE SAME OR SIMILAR INTERESTS AND THAT TO
PREVENT UNDULY REPETITIOUS CROSS-EXAMINATION THEY SHOULD BE REQUIRED TO
CHOOSE A SINGLE REPRSEENTATIVE FOR PURPOSES OF CROSS-EXAMINATION. IN
THAT CASE, THE ORDER SHALL SIMPLY ASSIGN TIME FOR CROSS-EXAMINATION. IN
THAT CASE, THE ORDER SHALL SIMPLY ASSIGN TIME FOR CROSS-EXAMINATIN
WITHOUT FURTHER IDENTIFYING THE REPRESENTATIVE. IF THE DESIGNATED
PARTIES FAIL TO CHOOSE A SINGLE REPRESENTATIVE, THE PRESIDING OFFICER
MAY DIVIDE THE ASSIGNED TIME AMONG THE REPRESENTATIVES OR ISSUE ANY
OTHER ORDER WHICH JUSTICE MAY REQUIRE.
(D) THE PRESIDING OFFICER AND, TO THE EXTENT POSSIBLE, THE MEMBERS OF
THE HEARING PANEL SHALL BE PRESENT AT THE SUPPLEMENTARY HEARING. DURING
THE COURSE OF THE HEARING. DURING THE COURSE OF THE HEARING, THE
PRESIDING OFFICER SHALL HAVE AUTHORITY TO MODIFY ANY ORDER ISSUED UNDER
PARAGRAPH (B) OF THIS SECTION. A RECORD WILL BE MADE UNDER SECTION
124.87.
(E)(1) NO LATER THAN THE TIME SET FOR REQUESTING CROSS-EXAMINATION, A
PARTY MAY REQUEST THAT ALTERNATIVE METHODS OF CLARIFYING THE RECORD
(SUCH AS THE SUBMISSION OF ADDITIONAL WRITTEN INFORMATION) BE USED IN
LIEU OF OR IN ADDITION TO CROSS-EXAMINATION. THE PRESIDING OFFICER
SHALL ISSUE AN ORDER GRANTING OR DENYING THIS REQUEST AT THE TIME HE OR
SHE ISSUES (OR WOULD HAVE ISSUED) AN ORDER GRANTING OR DENYING A REQUST
FOR CROSS-EXAMINATION, UNDER PARAGRAPH PARAGRAPH (B) OF THIS SECTION.
IF THE REQUST FOR AN ALTERNATIVE METHOD IS GRANTED, THE ORDER SHALL
SPECIFY THE ALTERNATIVE AND ANY OTHER RELEVANT INFORMATION (SCUH AS THE
DUE DATE FOR SUBMITTING WRITTEN INFORMATION).
(2) IN PASSING ON ANY REQUST FOR CROSS-EXAMINATION SUBMITTED UNDER
PARAGRAPH (A) OF THIS SECTION, THE PRESIDING OFFICER MAY, AS A
PRECONDITION TO RULING ON THE MERITS OF THE REQUEST, REQUIRE ALTERNATIVE
MEANS OF CLARIFYING THE RECORD TO BE USED WHETHER OR NOT A REQUEST TO DO
SO HAS BEEN MADE. THE PARTY REQUESTING CROSS-EXAMINATION SHALL HAVE ONE
WEEK TO COMMENT ON THE RESULTS OF USING THE ALTERNATIVE METHOD. AFTER
CONSIDERING THESE COMMENTS THE PRESIDING OFFICER SHALL ISSUE AN ORDER
GRANTING OR DENYING THE REQUEST FOR CROSS-EXAMINATION.
800519
FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 218 OF 225
COSTLE DM ADMINISTRATOR
EPA
113717
REGULATIONS
(F) THE PROVISIONS OF SECTION 124.85(D)(2) APPLY TO PROCEEDINGS UNDER
THIS SUBPART.
THE RECORD ON WHICH THE FINAL PERMIT SHALL BE BASED IN ANY PROCEEDING
UNDER THIS USBPART CONSISTS OF:
(A) THE ADMINISTRATIVE RECORD COMPILED UNDER SECTIONS 124.0 OR 124.18
AS THE CASE MAY BE;
(B) ANY MATERIAL SUBMITTED UDNER SECTION 124.78 RELATING TO EX PARTE
CONTACTS;
(C) ALL NOTICES ISSUED UNDER SECTION 124.113:
(D) ALL REQUESTS FOR HEARING, AND RULINGS ON THOSE REQUESTS, RECEIVED
OR ISSUED UNDER SECTIN 124.114;
(E) ANY NOTICE OF HEARING ISSUED UNDER SECTION 24.116;
(F) ANY REQUEST TO PARTICIPATE IN THE HEARING RECEIVED UNDER SECTION
124.113;
(H) THE FULL TRANSCRIPT AND OTHER MATERIAL RECEIVED INTO THE RECORD
OF THE PANEL HEARING UNDER SECTION 124.120;
(I) ANY MOTIONS FOR, OR RULINGS ON, CROSS-EXAMINATION FILED OR ISSUED
UNDER SECTION 124.121;
(J) ANY MOTIONS FOR, ORDERS FOR, AND THE RESULTS OF, ANY ALTERNATIVES
TO CROSS-EXAMINATION UNDER SECTION 124.121; AND
(K) THE FULL TRANSCRIPT OF ANY CROSS-EXAMINATION HELD.
UNLESS OTHERWISE ORDERED BY THE PRESIDING OFFICER, EACH PARTY MAY,
WITHIN 20 DAYS AFTER ALL REQUESTS FOR CROSS-EXAMINATION ARE DENIED OR
AFTER A TRANSCRIPT OF THE FULL HERAING INCLUDING ANY CROSS-EXAMINATION
BECOMES AVAILABLE, SUBMIT PROPOSED FINDINGS OF FACT; CONCLUSIONS
REGARDING MATERIAL ISSUES OF LAW, FACT, OR DISCRETION; AND PROPOSED
MODIFIED PERMIT (IF SUCH PERSON IS URGING THAT THE DRAFT OR FINAL PERMIT
BE MODIFIED); AND A BRIEF IN SUPPORT THEREOF; TOGETHER WITH REFERENCES
TO RELEVANT PAGES OF TRANSCRIPT AND TO RELEVANT EXHIBITS. WITHIN 10
DAYS THEREAFTER EACH PARTY MAY FILE A REPLY BRIEF CONCERNING MATTERS
CONTAINED IN OPPOSING BRIEFS AND CONTAINING ALTERNATIVE FINDINGS OF
FACT; CONCLUSIONS REGARDING MATERIAL ISSUES OF LAW, FACT, OR
DISCRETION; AND A PROPOSED MODIFED PERMIT WHRE APPROPRIATE. ORAL
ARGUMENT MAY BEHELD AT THE DISRECTION OF THE PRESIDING OFFICER ON MOTION
OF ANY PARTY OF SUA SPONTE.
THE PERSON NAMED TO PREPARE THE DECISION SHALL, AS SOON AS
PRACTICABLE AFTER THE CONCLUSION OF THE HERAING, EVALUATE THE RECORD OF
THE HEARING AND PREPARE AND FILE A RECOMMENDED DECISION WITH THE
REGIONAL HEARING CLERK. THAT PERSON MAY CONSULT WITH, AND RECEIVE
ASSISTANCE FROM, ANY MEMBER OF THE HEARING PANEL IN DRAFTING THE
RECOMMNEDED DECISION TO THE PANEL OR TO ANYMEMBER OR MEMBERS OF IT.
THIS DECISION SHALL CONTAIN FINDINGS OF FACT, CONCLUSIONS REGARDING ALL
MATERIAL ISSUES OF LAW, AND A RECOMMENDATION AS TO WHETHER AND IN WHAT
RESPECT THE DRAFT OR FINAL PERMIT SHOULD BE MODIFIED. AFTER THE
RECOMMENDED DECISION HAS BEEN FILED, THE REGIONAL HERAING CLERK SHALL
SERVE A COPY OF THAT DECISION ON EACH PARTY AND UPON THE ADMINISTRATOR.
(A)(1) WITHIN 30 DAYS AFTER SERVICE OF THE RECOMMENDED DECISION, ANY
PARTY MAY TAKE EXCEPTION TO ANY MATTER SET FORTH IN THAT DECISION TO ANY
ADVERSE ORDEROR RULING OF THE PRESIDING OFFICER TO WHICH THAT PARTY
OBJECTED, AND MAY APPEAL THOSE EXCEPTIONS TO THE ADMINISTRATOR AS
PROVIDED IN SECTION 124.91, EXCEPT THAT REFERENCES TO "INITIAL DECISION"
WILL MEAN RECOMMENDED DECISION UNDER SECTION 124.124.
AS SOON AS PRACTICABLE AFTER ALL APPEAL PROCEEDINGS HAVE BEEN
COMPLETED, THE ADMINISTRATOR SHALL ISSUE A FINAL DECISION. THAT
FINAL DECISION SHALL INCLUDE FINDINGS OF FACT; CONCLUSIONS REGARDING
MATERIAL ISSUE OF LAW, FACT, OR DISCRETION, AS WELL AS REASONS
THEREFORE; AND A MODIFIED PERMIT TO THE EXTENT APPROPRIATE. IT MAY
ACCEPT OR REJECT ALL OR PART OF THE RECOMMNEDED DECISION. THE
ADMINISTRATOR MAY DELEGATE SOME OR ALL OF THE WORK OF PREPARING
THIS DECISION TO A PERSON OR PERSONS WITHOUT SUBSTANTIAL PRIOR
CONNECTION WITH THE MATTER. THE ADMINISTRATOR OR HIS OR HER DESIGNE
MAY CONSULT WITH THE PRESIDING OFFICER, MEMBERS OF THE HEARING
PANEL, OR ANY OTHER EPA EMPLOYEE OTHER THAN MEMBERS OF THE
AGENCY TRIAL STAFF UNDER SECTION 124.78 IN PREPARING THE FINAL
DECISION. THE HEARING CLERK SHALL FILE A COPY OF THE DECISION
ON ALL PARTIES.
IF NO PARTY APPEALS A RECOMMENDED DECISION TO THE ADMINISTRATOR, AND
IF THE ADMINISTRATOR DOES NOT ELECT TO REVIEW IT, THE RECOMMENDED
DECISION BECOMES THE FINAL DECISION OF THE AGENCY UPON THE EXPIRATION OF
THE TIME FOR FILING ANY APPEALS.
(A) THE ADMINISTRATOR MAY DELEGATE TO A JUDICIAL OFFICER ANY OR ALL
OF HIS OR HER AUTHORITY UNDER THIS SUBPART.
(B) THE FAILURE OF THE ADMINISTRATOR, REGIONAL ADMINISTRATOR, OR
PRESIDING OFFICER TO DO ANY ACT WITHIN THE TIME PERIODS SPECIFIED UNDER
THIS PART SHALL NOT WAIVE OR DIMINISH ANY RIGHT, POWER, OR AUTHORITY OF
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
(C) UPON A SHOWING BY ANY PARTY THAT IT HAS BEEN PREJUDICED BY A
FAILURE OF THE ADMINISTRATOR, REGIONAL ADMINISTRATOR, OR PRESIDING
OFFICER TO DO ANY ACT WITHIN THE TIME PERIODS SPECIFIED UNDER THIS PART
SHALL NOT WAIVE OR DIMINISH ANY RIGHT, POWER, OR AUTHORITY OF THE UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY.
(C) UPON A SHOWING BY ANY PARTY THAT IT HAS BEEN PREJUDICED BY A
FAILUREOF THE ADMINISTRATOR, REGIONAL ADMINISTRATOR, OR PRESIDING
OFFICER TO DO ANY ACT WITHIN THE TIME PERIODS SPECIFIED UNDER THIS PART
THE ADMINISTRATOR, REGIONAL ADMINISTRATOR, OR PRESIDING OFFICER, AS THE
CASE MAY BE, MAY GRANT THATPARTY SUCH RELIEF OF A PROCEDURAL NATURE
(INCLUDING EXTENSION OF ANY TIME FOR COMPLIANCE OR OTHER ACTION) AS MAY
BE APPROPRIATE.
THIS APPENDIX IS DESIGNED TO ASSIST IN READING THE PROCEDURAL
REQUIREMENTS SET OUT IN PART 124. IT CONSISTS OF TWO FLOW CHARTS.
FIGURE 1 DIAGRAMS THE MORE CONVENTIONAL SEQUENCE OF
PROCEDURE EPA EXPECTS TO FOLLOW IN PROCESSING PERMITS UNDER
THIS PART. IT OUTLINES HOW A PERMIT WILL BE APPLIED FOR, HOW
A DRAFT PERMIT WILL BE PREPARED AND PUBLICLY NOTICED FOR
COMMENT, AND HOW A FINAL PERMIT WILL BE ISSUED UNDER THE PROCEDURES
IN SUBPART A.
THIS PERMIT MAY THEN BE APPEALED TO THE ADMINISTRATOR, AS SPECIFIED
BOTH IN SUBPART A (FOR RCRA, UIC, OR PSD PERMITS), OR SUBPART E OR F
(FORNPDES PERMITS). THE FIRST FLOW CHART ALSO BRIEFLY OUTLINES WHICH
PERMIT DECISIONS ARE ELIGIBLE FOR WHICH TYPES OF APPEAL.
PART 124 ALSO CONTAINS SPECIAL "NON-ADVERSARY PANEL HEARING"
PROCEDURES BASED ON THE "INITIAL LICINSING" PROVISIONS OF THE
ADMINSTRATIVE PROCEDURE ACT. THESE PROCEDURES ARE SET FORTH
IN SUBPART F. IN SOME CASES, EPA MAY ONLY DECIDE TO MAKE THOSE
PROCEDURES APPLICABLE AFTER IT HAS GONE THROUGH THE NORMAL
SUBPART A PROCEDURES ON A DRAFT PERMIT. THIS PROCESS IS ALSO
DIAGRAMMED IN FIGURE 1.
FIGURE 2 SETS FORTH THE GENERAL PROCEDURE TO BE FOLLOWED WHERE THESE
SUBPART F PROCEDURESHAVE BEEN MADE APPLICABLE TO A PERMIT FROM THE
BEGINNING.
BOTH FLOW CHARTS OUTLINES A SEQUENCE OF EVENTS DIRECTED BY ARROWS.
THE BOXES SET FORTH ELEMENTS OF THE PERMIT PROCESS ; AND THE DIAMONDS
INDICATE KEY DECISIONMAKING POINTS IN THE PERMIT PROCESS.
THE CHARTS ARE DISCUSSED IN MORE DETAIL BELOW.
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 219 OF 225
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REGULATIONS
FIGURE 1 -- CONVENTIONAL EPA PERMITTING
PROCEDURES
THIS CHARTOUTLINES THE PROCEDURES FOR ISSUING PERMITS WHENEVER EPA
DOES NOT MAKE USE OF THE SPECIAL "PANEL HEARING" PROCEDURES IN SUBPART
F. THE MAJOR STEPS DEPICTED ON THIS CHART ARE AS FOLLOWS:
1. THE PERMIT PROCESS CAN BEGIN IN ANY ONE OF THE FOLLOWING WAYS;
1. NORMALLY, THEPROCESS WILL BEGIN WHEN A PERSON APPLIES FOR A
PERMIT UNDER SECTIONS 122.4 AND 124.3
B. IN OTHER CASES, EPA MAY DECIDE TO TAKE ACTION ON ITS OWN
INITIATIVE TO CHANGE A PERMIT OR TO ISSUE A GENERAL PERMIT. THIS LEADS
DIRECTLY TO PREPARATION OF A DRAFT PERMIT UNDER SECTION 124.6
C. IN ADDITION, THE PERMITTEE OR ANY INTERESTED PERSON (OTHER THAN
FOR PSD REVOCATION AND REISSUANCE OR TERMINATION OF A PERMIT UNDER
SECTIONS 122.15, 122.16 AND 124.5.
THOSE REQUESTS CAN BE HANDLED IN EITHER OF TWO WAYS;
I. EPA MAY TENATIVELY DECIDE TO GRANT THE REQUEST AND ISSUE A NEW
DRAFT PERMIT FOR PUBLIC COMMENT, EITHER WITH OR WITHOUT REQUIRING A NEW
APPLICATION.
II. IF THE REQUEST IS DENIED, AN INFORMAL APPEAL TO THE
ADMINISTRATOR IS AVAILABLE.
2. THE NEXT MAJOR STEP IN THE PERMIT PROCESS IS THE PREPARATION OF A
DRAFT PERMIT. AS THE CHART INDICATES, PREPARING A DRAFT PERMIT ALSO
REQUIRES PREPARATIONS OF EITHER A STATEMENT OF BASIS (SECTION 124.7), A
FACT SHEET (SECTION 124.8) OR, COMPILATION OF AN "ADMINISTRATIVE RECORD"
(SECTION 124.9), AND PUBLIC NOTICE (SECTION 124.10).
3. THE NEXT STAGE IS THE PUBLIC COMMENT PERIOD (SECTION 124.11). A
PUBLIC HEARING UNDER SECTION 124.12 MAY BE REQUESTD BEFORE THE CLOSE OF
THE PUBLIC COMMENT PERIOD.
EPA HAS THE DISCRETION TO HOLD A PUBLIC HEARING, EVEN IF THERE WERE
NO REQUESTS DURING THE PUBLIC COMMENT PERIOD. IF EPA DECIDES TO
SCHEDULE ONE, THE PUBLIC COMMENT PERIOD WILL BE EXTENDED THROUGH THE
CLOSE OF THE HERAING. EPA ALSO HAS THE DISCRETION TO CONDUCT THE PUBLIC
HEARING UNDER SUBPART F PANEL PROCEDURES. (SEE FIGURE 2.)
THE REGULATIONS PROVIDE THAT ALL ARGUMENTS AND FACTUAL MATERIALS THAT
A PERSON WISHES EPA TO CONSIDER IN CONNECTION WITH A PARTICULAR PERMIT
MUST BE PLACED IN THE RECORD BY THE CLOSE OF THE PUBLIC COMMENT PERIOD
(SECTION 124.13).
4. SECTION 124.14 STATES THATEPA, AT ANY TIME BEFORE ISSUING A FINAL
PERMIT DECISION MAY DECIDE TO EITHER REOPEN OR EXTEND THE COMMENT
PERIOD, PREPARE A NEW DRAFT PERMIT AND BEGIN THE PROCESS AGAIN FROM THAT
POINT, OR FOR RCRA AND UIC PERMITS, OR FOR NPDES PERMITS THAT CONSTITUTE
"INITIAL LICENSING", TO BEGIN "PANEL HEARING" PROCEEDINGS UNDER SUBPART
F. THSE VARIOUS RESULTS ARESHOWN SCHEMATICALLY.
5. THE PUBLIC COMMENT PERIOD AND ANY PUBLIC HEARING WILL BE FOLLOWED
BY ISSUANCE OF A FINAL PERMIT DECISION (SECTION 124.15) AS THE
CHARTSHOWS, THE FINAL PERMIT MUST BE ACCOMPANIED BY A RESPONSE TO
COMMENTS (SECTION 124.17) AND BE BASED ON THE ADMINISTRATIVE RECORD
(SECTION 124.18).
6. AFTER THE FINAL PERMIT IS ISSUED, IT MAY BE APPEALED TO HIGHER
AGENCY AUTHORITY. THE EXACT FORM OF THE APPEAL DEPENDS ON THE TYPE OF
PERMIT INVOLVED.
A. RCRA, UIC OR PSD PERMITS STANDING ALONE WILL BE APPEALED DIRECTLY
TO THE ADMINISTRATOR UNDER SECTION 124.19.
B. NPDES PERMITS WHICH DO NOT INVOLVE "INITIAL LICENSING" MAY BE
APPEALED IN AN EVIDENTIARY HEARING UNDER SUBPART E. THE REGULATIONS
PROVIDE (SECTION 124.74) THAT IF SUCH A HEARING IS GRANTED FOR AN NPDES
PERMIT AND IF RCRA OR UIC PERMITS HAVE BEEN CONSOLIDATED WITH THAT
PERMIT UNDER SECTION 124.4 THEN CLOSELY RELATED CONDITIONS OF THOSE RCRA
OR UIC PERMITS MAY BE REEXAMINED IN AN EVIDENTIARY HEARING. PSD
PERMITS, HOWEVER, MAY NEVER BE REEXAMINED IN A SUBPART E HARING.
C. NPDES PERMITS WHICH DO INVOLVE "INITIAL LICENSING" MAY BE
APPEALED IN A PANEL HEARING UNDER SUPBART F. THE REGULATIONS PROVIDE
THAT IF SUCH A HEARING IS GRANTED FOR AN NPDES PERMIT, CONSOLIDATED
RCRA, UIC, OR PSD PERMITS MAY ALSO BE REEXAMINED IN THE SAME PROCEEDING.
AS DISCUSSED BELOW, THIS IS ONLY OF SEVERAL WAYS THE PANEL HEARING
PROCEDURES MAY BE USED UNDER THESE REGULATIONS.
7. THIS CHARTDOES NOT SHOW EPA APPEAL PROCEDURES IN DETAIL.
PROCEDURES FOR APPEAL TO THE ADMINISTRATOR UNDER SECTION 124.19 ARE
SELF-EXPLANATORY. SUBPART F PROCEDURES ARE BASICALLY THE SAME THAT
WOULD APPLY IN ANY EVIDENTIARY HEARING.
HOWEVER, THE CHART AT THIS STAGE DOES REFLECT THE PROVISIONS OF
SECTION 124.60 (B), WHICH ALLOWS EPA, EVEN AFTER A FORMAL HEARING HAS
BEGUN, TO "RECYCLE" A PERMIT BACK TO THE DRAFT PERMIT STAGE AT ANY TIME
BEFORE THAT HEARING HAS RESULTED IN AN INITIAL DECISION.
THIS CHART OUTLINES THE PROCEDURES FOR PROCESSING PERMITS UNDER THE
SPECIAL "PANEL HEARING" PROCEDURES OF SUBPART F. THESE DECISIONS THAT
INVOLVE "INITIAL LICENSING" NPDES PERMITS. THOSE PERMITS INCLUDE THE
FIRST DECISIONS ON AN NPDES PERMITS. THOSE PERMITS INCLUDE THE FIRST
DECISIONS ON AN NPDES PERMIT APPLIED FOR BY ANY DISCHARGER THAT HAS NOT
PREVIOUSLYHELD ONE, AND THE FIRST DECISION, THESE PROCEDURES WILL BE
USED FOR ANY RCRA UIC, OR PSD PERMIT WHICH HAS BEEN CONSOLIDATED WITH
SUCH AN NPDES PERMIT, AND MAY BE USED, IF THE REGOINAL ADMINISTRATOR SO
CHOSES, FOR THE ISUANCE OF INDIVIDUAL RCRA OR UIC PERMITS. THE STEPS
DEPICTED ON THE CHART ARE AS FOLLOWS:
1. APPLICATION FOR A PERMIT. THESE PROCEEDINGS WILL GENERALLY BEGIN
WITH AN APPLICATION, SINCE NPDES INITIAL LICENSING ALWAYS WILL BEGIN
WITH AN APPLICATION.
2. PREPARATION OF A DRAFT PERMIT. THIS IS IDENTICAL TO THE SIMILAR
STEP IN FIGURE 1.
3. PUBLIC COMMENT PERIOD. THIS AGAIN IS IDENTICAL TOTHE SIMILAR
STEP IN FIGURE 1. THE REGIONAL ADMINISTRATOR HAS THE OPPORTUNITY TO
SCHEDULE AN INFORMAL PUBLIC HEARING UNDER SECTION 124.12 DURING THIS
PERIOD.
4. REQUESTS FOR A PANEL HEARING MUST BE RECEIVED BY THE END
OF THE PUBLIC COMMENT PERIOD UNDER SECTION 124.113. SEE SECTION
124.114.
IF A HEARING REQUEST IS DENIED, OR IF NO HEARING REQUESTS
ARERECEIVED, A RECOMMNEDED DECISION WILL BE ISSUED BASED ON THE COMMENTS
RECEIVED. THE RECOMMENDED DECISION MAY THEN BE APPEALED TO THE
ADMINISTRATOR. SEE SECTION 124.115.
5. IF A HEARING IS GRANTED, NOTICE OF THE HEARING WILL BE PUBLISHED
IN ACCORDANCE WITH SECTION 124.116 AND WILL BE FOLLOWED BY A SECOND
COMMENT PERIOD DURING WHICH REQUESTS TO PARTICIPATING AND THE BULK OF
THE REMAINING EVIDENCE FOR THE FINAL DECISION WILL BE RECEIVED (SECTIONS
124. 117 AND 124.118).
THE REGULATIONS ALSO ALLOW EPA TO MOVE DIRECTLY TO THIS STAGE BY
SCHEDULING A HEARING WHEN THE DRAFT PERMIT IS PREPARED. IN SUCH CASES
THE COMMENT PERIOD ON THE DRAFT PERMIT UNDER SECTION 124.113 AND THE
PREHEARING COMMENT PERIOD UNDER SECTION 124.118 WOULD OCCUR AT THE SAME
TIME. EPA ANTICIPATES THAT THIS WILL BE PROCESSED UNDER PANEL
PROCEDURES.
THIS IS ALSO A STAGE AT WHICH EPA CAN SWITCH FROM THE
CONVENTIONAL PROCEDURES DIAGRAMMED IN FIGURE 1 TO THE PANEL
HEARING EITHER THORUGH USE OF THE "RECYCLE" PROVISION
IN SECTION 124.14 OR IN RESPONSE TO A REQUEST FOR A FORMAL HEARING
UNDER SECTION 124.74.
6. AFTER THE CLOSE OF THE COMMENT PERIOD, A PANEL HEARING WILL BE
HELD UNDERSECTION 124.120, UNDER SECTION 124.121. THE RECOMMENDED
DECISION WILL THEN BE PREPARED (SECTION 124.124) AND AN OPPORTUNITY FOR
APPEAL PROVIDED UNDER SECTION 124.125. A FINAL DECISION WILL BE ISSUED
AFTER APPEAL PROCEEDINGS, IF ANY, ARE CONCLUDED.
BILLING CODE 6560-01-M
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 220 OF 225
COSTLE DM ADMINISTRATOR
EPA
113719
REGULATIONS
FIGURE 1-CONVENTIONAL EPA PERMITING PROCEDURES
FIGURE OMITTED
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 221 OF 225
COSTLE DM ADMINISTRATOR
EPA
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REGULATIONS
EPA APPEAL PROCEDURES
FIGURE OMITTED
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 222 OF 225
COSTLE DM ADMINISTRATOR
EPA
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REGULATIONS
FIGURE 2-NON-ADVERSARY PANEL PROCEDURES
FIGURE OMITTED
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 223 OF 225
COSTLE DM ADMINISTRATOR
EPA
113722
REGULATIONS
2. 40 CFR PART 125 IS AMENDED AS FOLLOWS:
A. SECTION 125.2 IS REVISED TO READ AS FOLLOWS:
FOR THE PURPOSES OF THIS PART, ANY REFERENCE TO "THE ACT"
SHALL MEAN THE CLEAN WATER ACT OF 1977 (CWA). UNLESS OTHERWISE
NOTED, THE DEFINITIONS IN PARTS 122, 123 AND 124 APPLY TO THIS
PART.
B. SECTION 125.3 IS AMENDED BY:
1. REVISING THE INTRODUCTORY TEXT OF PARAGRAPHS (A), (A)(2),
(B)(2), AND REVISING PARAGRAPH (C)(1).
2. ADDING PARAGRAPH (C)(4) AND (G).
(A) GENERAL . TECHNOLOGY-BASED TREATMENT REQUIREMENTS UNDER SECTION
301(B) OF THE ACT REPRESENT THE MINIMUM LEVEL OF CONTROL THATMUST BE
IMPOSED IN A PERMIT ISSUED UNDER SECTIO 402 OF THE ACT. (SEE SECTIONS
122.60, 122.61 AND 122.62 FOR A DISCUSSION OF ADDITIONAL OR MORE
STRINGENT EFFLUENT LIMITATIONS AND CONDITIONS.) PER,ITS SHALL CONTAIN
THE FOLLOWING TECHNOLOGY-BASED TREATMENT REQUIREMENTS IN ACCORDANCE WITH
THE FOLLOWING STATUTORY DEADLINES.
(2) FOR DISCHARGERS OTHER THAN POTW'S EXCEPT AS PROVIDED
IN SECTION 122.67(D), EFFLUENT LIMITATIONS REQUIRING:
(B) STATUTORY VARIANCES AND EXTENSIONS. (1) THE FOLLOWING VARIANCES
FROM TECHNOLOGY-BASED TREATMENT REQUIREMENTS ARE AUTHORIZED BY THE ACT
AND MAY BE APPLIED FOR UNDER SECTION 122.53.
(2) THE FOLLOWING EXTENSIONS OF DEADLINES FOR COMPLIANCE FOR
COMPLIANCE WITH TECHNOLOGY-BASED TREATMENT REQUIREMENTS ARE AUTHORIZED
BY THE ACT AND MAY BE APPLIED FOR UNDER SECTION 122.53;
(C)
(1) APPLICATION OF EPA-PROMULGATED EFFLUENT LIMITATIONS DEVELOPED
UNDER SECTION 304 OF THE ACT TO DISCHARGERS BY CATEGORY OR SUBCATEGORY.
THSE EFFLUENT LIMITATIONS ARENOT APPLICABLE TO THE EXTENT THAT THEY HAVE
BEEN REMANDED OR WITHDRAWN. HOWEVER, IN CASE OF A COURT REMAND,
DETERMINATIONS UNDERLYING EFFLUENT LIMITATIONS SHALL BE BINDING IN
PERMIT ISSUANCE PROCEEDINGS WHERE THOSE DETERMINATIONS ARE NOT REQUIRED
TO BE REEXAMINED BY A COURT REMANDING THE REGULATIONS; IN ADDITION
DISCHARGERS MAY SEEKFUNDAMENTALLY DIFFERENT FACTORS VARIANCES FROM THESE
EFFLUENT LIMITATIONS UNDER SECTION 122.53 AND SUBPART D OF THIS PART.
(4) LIMITATIONS DEVELOPED UNDER PARAGRAPH (C)(2) OF THIS
SECTION MAY BE EXPRESSED, WHERE APPROPRIATE, IN TERMS OF TOXICITY
(E.G., "THE LC 50 FOR THE FAT HEAD MINNOW OF THE EFFLUENTFROM OUTFAL
001 SHALL BE GREATER THAN 25%), PROVIDED THAT IS SHOWN THAT THE
LIMITS REFLECT THE APPROPRIATE REQUIREMENTS (FOR EXAMPLE,
TECHNOLOGY-BASED OR WATER-QUALITY-BASED STANDARDS) OF THE ACT.
(G)(1) THE DIRECTOR MAY SET A PERMIT LIMIT FOR A CONVENTIONAL
POLLUTANT AT A LEVEL MORE STRINGENT THAT THE BEST CONVENTIONAL POLLUTION
CONTROL TECHNOLOGY (BCT), OR A LIMIT FOR A NONCONVENTIONAL POLLUTANT
WHICH SHALL NOT BE SUBJECT TO MODIFICATION POLLUTANT WHICH SHALL NOT BE
SUBJECT TO MODIFICATION UNDER SECTION 301(C) OR (G) OF THE ACT WHERE:
(I) EFFLUENTLIMITATIONS GUIDELINES SPECIFY THE POLLUANT AS AN
INDICATOR FOR A TOXIC POLLUTANT, OR
(II)(A) THE LIMITATION REFLECTS BAT-LEVEL CONTRL OF DISCHARGES
1OF ONE OR MORE TOXIC POLLUTANTS WHICH AREPRESENT IN THE WASTE
STREAM, AND A SPECFICI BAT LIMITATION UPON THE TOXIC
POLLUTANT(S) IS NOT FEASIBLE FOR ECONOMIC OR TECNICAL REASONS;
(B) THE PERMIT IDENTIFIES WHICH TOXIC POLLUTANTS ARE INTENDED TO BE
CONTROLLED BY USE OF THE LIMITATION; AND
(C) THE FACT SHEET REQUIRED BY SECTION 124.56 SETS FORTH THE BASIS
FOR THE LIMITATION, INCLUDING A FINDING THAT COMPLIANCE WITH THE
LIMITATION WILL RESULT IN BAT-LEVEL CONTROL OF THE TOXIC POLLUTANT AT A
LEVEL MORE STRINGENT THAN BCT WHEN:
(I) EFFLUENT LIMITATIONS GUIDELINES SPECIFY THE POLLUTANT AS AN
INDICATOR FOR A HAZARDOUS SUBSTANCE, OR
(II)(A) THE LIMITATION REFLECTS BAT-LEVEL CONTROL OF DISCHARGES (OR
AN APPROPRIATE LEVEL DETERMINED UNDER SECTION 301 (C) OR (G) OF THE ACT)
OF ONE OR MORE HAZARDOUS SUBSTANCE(S) WHICH ARE PRSENT IN THE WASTE
STREAM, AND A SPECIFIC BAT (OR OTHER APPROPRIATE) LIMITATION UPON THE
HAZARDOUS SUBSTANCE(S) IS NOT FEASIBLE FOR ECONOMIC OR TECHNICAL
REASONS:
(B) THE PERMIT IDENTIFIES WHICH TOXIC POLLUTANS ARE INTENDED TO BE
CONTROLLED BY USE OF THE LIMITATION; AND
(C) THE FACT SHEET REQUIRD BY SECTION 124.56 SETS FORTH THE
LIMITATION, INCLUDING A FINDING THAT COMPLIANCE WITH THE LIMITATIONS
WILL RESULT IN BAT-LEVEL (OR OTHER APPROPRIATE LEVEL) CONTROL OF THE
HAZARDOUS SUBSTANCES DISCHARGES IDENTIFIED IN PARAGRAPH (G)(2)(II)(B) OF
THIS SECTION, AND A FINDING THAT IT WOULD BE ECONOMICALLY OR TECHNICALLY
INFEASIBLE TO DIRECTLY LIMIT THE HAZARDOUS SUBSTANCE(S).
(III) HAZARDOUS SUBSTANCES WHICH ARE ALSO TOXIC POLLUTANS ARE SUBJECT
TO PARAGRAPH (G)(1) OF THIS SECTION
(3) THE DIRECTOR MAY NOT SET A MORE STRINGENT LIMIT UNDER THE
PRECEDING PARAGRAPHS IF THE METHOD OF TREATMENT REQUIRED TO COMPLY WITH
THE LIMIT DIFFERS FROM THAT WHICH WOULD BE REQUIRD IF THE TOXIC
POLLUTANT(S) OR HAZARDOUS SUBSTANCE(S) CONTROLLED BY THE LIMIT WERE
LIMITED DIRECTLY.
(4) TOXIC POLLUTANS IDENTIFEID UNDER PARAGRAPH. (G)(1) OF THIS
SECTION REMAIN SUBJECT TO THE REQUIREMENTS OF SECTION
122.61(A)(1)(NOTIFICATION OF INCREASED DISCHARGES OF TOXIC POLLUTANTS
ABOVE LEVELS REPORTED IN THE APPLICATION FORM).
C. SECTION 125.30 IS AMENDED BY REVISING PARAGRAPH (B) TO READ AS
FOLLOWS:
(B) IN ESTABLISHING NATIONAL LIMITS, EPA TAKES INTO ACCOUNT ALL
THEINFORMATION IT CAN COLLECT, DEVELOP AND SOLICIT REGARDING THE FACTORS
LISTED IN SECTIONS 304(B), 304(G) AND 407(B) OF THE ACT. IN SOME CASES,
HOWEVER, DATA WHICH COULD AFFECT THESE NATIONAL LIMITS AS THEY APPLY TO
A PARTICULAR DISCHARGE MAY NOT BE AVAILABLE OR MAY NOT BE CONSIDERED
DURING THEIR DEVELOPMENT. AS A RESULT, IT MAY BE NECESSARY ON A
CASE-BY-CASE BASIS TO ADJUST THE NATIONAL LIMITS, AND MAKE THEM EITHER
MORE OR LESS STRINGENT AS THEY APPLY TO CERTAIN DISCHARGERS WITHIN AN
INDUSTRIAL CATEGORY OR SUBCATEGORY. THIS WILL ONLY BE DONE IF DATA
SPECFIC TO THAT DISCHARGER INDICATES IT PRESENTS FACTORS FUNDAMENTALLY
DIFFERENT FROM THOSE CONSIDERED BY EPA IN DEVELOPING THE LIMIT AT ISSUE.
ANY INTERESTED PERSON BELIEVING THAT FACTORS RELATING TO A DISCHARGER'S
FACILITIES, EQUIPMENT, RPOCESSES OR OTHER FACILITIES RELATED TO THE
DISCHARGER AREFUNDAMENTALLY DIFFERENT FROM THE FACTORS CONSIDERED DURING
DEVELOPMENT OF THE NATIONAL LIMITS MAY REQUEST A FUNDAMENTALLY DIFFERENT
FACTORS VARIANCE UNDER SECTION 122.53 (I)(1), IN ADDITION, SUCH A
VARIANCE MAY BE PROPOSED BY THE DIRECTOR IN THE DRAFT PERMIT.
D. SECTION 125.72 IS AMENDED BY REVISING PARAGRAPH (F) TO READ AS
FOLLOWS:
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FEDERAL REGISTER PART 10
EPA CONSOLIDATED PERMIT REGULATIONS
40 CFR PARTS 122, 123, 124, AND 125, FRL 1453-5
PART 224 OF 225
COSTLE DM ADMINISTRATOR
EPA
113723
REGULATIONS
(F) IF AN APPLICANT DESIRES A RULING ON A SECTION 316(A) APPLICATION
BEFORE THERULING ON ANY OTHER NECESSARY PERMIT TERMS AND CONDITIONS, (AS
PROVIDED BY SECTION 124.65), IT SHALL SO REQUEST UPON FILING ITS
APPLICATION UNDER PARAGRAPH (A) OF THIS SECTION. THIS REQUEST SHAL BE
GRANTED OR DENIED AT THE DISCRETION OF THE DIRECTOR.
(NOTE. -- AT THE EXPIRATION OF THE PERMIT, ANY DISCHARGER HOLDING A
SECTION 316(A) VARIANCE SHOULD BE PREPARED TO SUPPORT THE CONTINUATION
OF THE VARIANCE WITH STUDIES BASED ON THE DISCHARGER'S ACTUAL OPERATION
EXPERIENCE.)
E. SECTION 125.92 IS REVISED TO READ AS FOLLOWS:
ANY OWNER OR OPERATOR OF A PUBLICLY OWNED TREATMENT WORKS (POTW) THAT
REQUIRES CONSTRUCTION TO ACHIEVE LIMITATIONS UNDER SECTIONS 301(B)(1)(B)
OR 301(B)(1)(C) OF THE ACT MAY REQUEST MODIFICATION OR ISSUANCE OF A
PERMIT EXTENDING THE DATE FROM COMPLIANCE WITH THESE LIMITATIONS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 122.53(J).
F. SECTION 125.95 IS REVISED TO READ AS FOLLOWS:
ANY OWNER OR OPERATOR OF A POINT SOURCE OTHER THAN A POTW THAT WILL
NOT ACHIEVE THE REQUIREMENTS OF SECTIONS 301(B)(1)(A) AND 301(B)(1)(C)
OF THE ACT BECAUSE IT WAS SCHEDULED TO DISCHARGE INTO A POTW THAT IS
PRESENTLY UNABLE TO ACCEPT THE DISCHARGE WITHOUT CONSTRUCTION, MAY
REQUEST MODIFICATION OF ISSUANCE OF A PERMIT EXTENDING THE DATE OF
COMPLIANCE WITH THESE LIMITATIONS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 122.53(I).
G. SECTION 125.104 IS AMENDED BY REVISING PARAGRAPH (C) TO READ AS
FOLLOWS:
(C)(1) THE BMP PROGRAM MUST BE CLEARLY DESCRIBED AND SUBMITTED AS
PART OF THE PERMIT APPLICATION. AN APPLICATION WHICH DOES NOT CTONAIN A
BMP PROGRAM SHALL BE CONSIDERED INCOMPLETE. UPON RECEIPT OF THE
APPLICATION, THE DIRECTOR SHALL APPROVE OR MODIFY THE PROGRAM IN
ACCORDANCE WITH THE REQUIREMENTS OF THIS SUBPART. THE BMP PROGRAM WAS
APPROVED OR MODIFIED SHALL BE INCLUDED IN THE DRAFT PERMIT (SECTION
124.6) THE BMP PROGRAM SHALL BE SUBJECT TO THE APPLICABLE PERMIT
ISSUANCE REQUIRMNTS OF PART 124, RSULTING IN THE INCORPORATION OF THE
PROGRAM (INCLUDING ANY MODIFICATION OF THE PROGRAM RESULTING FROM THER
PERMIT ISSUANCE PROCEDURES) INTO THE FINAL PERMIT.
(2) PROPOSED MODIFICATIONS TO THE BMP PROGRAM WHICH AFFECT THE
DISCHARGER'S PERMIT OBLIGATIONS SHALL BE SUBMITTED TO THE DIRECTOR FOR
APPROVAL, IF THE DIRECTOR APPROVES THE PROPOSED BMP PROGRAM
MODIFICATION, THE PERMIT SHALL BE MODIFIED IN ACCORDANCE WITH SECTION
122.15, PROVIDED THAT THE DIRECTOR MAY WAIVE THE REQUIREMENTS FOR PUBLIC
NOTICE AND OPPORTUNITY FOR HEARING ON SUCH MODIFICATION IF HE OR SHE
DETERMINES THAT THE MODIFICATION IS NOT SIGNIFICATN. THE BMP PROGRAM, OR
MODIFICATION THEREOF SHALL BE FULLY IMPLEMENTES AS SOON AS POSSIBLE BUT
NOT LATER THAN ONE YEAR AFTER PERMIT ISSUANCE, MODIFICATION, OR
REVOCATION AND REISSUANCE UNLESS THE DIRECTOR SPECIFIES A LATER DATE IN
THE PERMIT.
(NOTE. - A LATER DATE MAY BE SPECIFIED IN THE PERMIT, FOR EXAMPLE, TO
ENABLE COORDINATED PREPARATION OF THE BMP PROGRAM REQUIRED UNDER THESE
REGULATIONS AND THE SPCC PLAN REQUIRED UNDER 40CFR PART 151 OR TO ALLOW
FOR THE COMPLETION OF CONSTRUCTION PROGRAM RELATED TO THE FACILITY'S BMP
OR SPCC PROGRAM.)
(FR DOC. 80-14312 FILED 5-16-80; 8:45 AM)
BILLING CODE 6560-01-M
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 001 OF 74
COSTLE D M ADMINISTRATOR
EPA
113725
REGULATION
TITLE PAGE OMITTED
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 002 OF 74
COSTLE D M ADMINISTRATOR
EPA
113726
REGULATION
ACTION: PUBLICATION OF CONSOLIDATED PERMIT APPLICATION FORMS.
SUMMARY: ELSEWHERE IN TODAY'S FEDERAL REGISTER, EPA HAS PUBLISHED
FINAL CONSOLIDATED REGULATIONS FOR SEVERAL PERMIT PROGRAMS ADMINISTERED
BY THE AGENCY. AS PART OF ITS CONSOLIDATION OF PERMIT PROGRAMS.
THE COMPLETE SET OF CONSOLIDATED APPLICATION FORMS WILL CONSIST OF A
BRIEF GENERAL FORM REQUESTING INFORMATION COMMON TO ALL THE CONSOLIDATED
PERMIT PROGRAMS (INCLUDING AN IDENTIFICATION OF THE FACILITY AND A
GENERAL DESCRIPTION OF THE VARIOUS PATHWAYS BY WHICH THE FACILITY
RELEASES POLLUTANTS TO THE ENVIRONMENT) AND SEVERAL SUPPLEMENTAL
PROGRAM-SPECIFIC FORMS. SEVERAL OF THESE FORMS, DRAFTS OF WHICH WERE
PUBLISHED FOR PUBLIC COMMENT ON JUNE 14, 1979 (44 FR 34346), ARE NOW
AVAILABLE FOR USE AND ARE PUBLISHED IN THIS NOTICE. THESE ARE:
FORM 1 -- THE GENERAL FORM FOR ALL APPLICANTS.
FORM 2B -- A SUPPLEMENTAL FORM FOR CONCENTRATED ANIMAL FEEDING
OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES APPLYING FOR
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMITS UNDER
THE CLEAN WATER ACT.
FORM 2C -- A SUPPLEMENTAL FORM FOR EXISTING INDUSTRIAL DISCHARGERS
APPLYING FOR NPDES PERMITS.
FORM 3 -- A SUPPLEMENTAL FORM FOR HAZARDOUS WASTE MANAGEMENT
FACILITIES APPLYING FOR HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL
PERMITS UNDER THE RESOURCE CONSERVATION AND RECOVERY ACT.
ADDITIONAL FORM WILL BE DEVELOPED IN THE FUTURE, AS EXPLAINED IN THE
SUPPLEMENTARY INFORMATION SECTION BELOW.
THE CONSOLIDATED APPLICATION FORMS HAVE BEEN DESIGNED FOR USE BY
APPLICANTS FOR EPA PERMITS. STATES WITH EPZ-APPROVED PERMIT PROGRAMS
MAY ADOPT THE EPA FORMAT IN DEVELOPING THEIR OWN FORMS, OR THEY MAY
DEVELOP FORMS WHICH DIFFER FROM EPA'S, PROVIDED THAT THEIR FORMS REQUIRE
SUBMISSION OF THE INFORMATION REQUIRED BY 40 FR PART 122 OF THE
CONSOLIDATED PERMIT REGULATIONS. EPA ENCOURAGES STATES TO CONSOLIDATE
THEIR APPLICATION FORMS IN A MANNER WHICH WILL, LIKE EPA'S CONSOLIDATED
FORM, PROVIDE COMPLETE SUMMARIES OF FACILITIES' TOTAL RELEASES OF
POLLUTANTS TO THE ENVIRONMENT.
THE SUPPLEMENTARY INFORMATION BELOW DISCUSSES EXTENSIVELY THE NPDES
PERMITTING STRATEGY AND RELATED REGULATIONS, AS WELL AS THE APPLICATION
FORMS. DRAFTS OF THE FORMS AND PROPOSED REGULATIONS AND DIDCUSSION OF
THE PERMITTING STRATEGY WERE PUBLISHED TOGETHER IN PART III OF THE JUNE
14, 1979 FEDERAL REGISTER (44 FR 34346). TODAY, THE FINAL REGULATIONS
ARE PUBLISHED AS PART OF THE CONSOLIDATED REGULATIONS. HOWEVER, THE
REGULATIONS RELATING TO THE APPLICATION REQUIREMENTS AND PERMITTING
STRATEGY ARE DISCUSSED HERE RATHER THAN IN THE PREAMBLE TO THE
CONSOLIDATED REGULATIONS TO AGAIN ALLOW A UNIFIED, DETAILED DISCUSSION
OF THE FUTURE DIRECTION OF THE NPDES PROGRAM.
DATES: FORMS 1, 2B, 2C, AND 3 MUST BE USED IN ACCORDANCE WITH THE
FOLLOWING SCHEDULE:
1. NEW CONCENTRATED ANIMAL FEEDING OPERATIONS AND AQUATIC ANIMAL
PRODUCTION FACILITIES APPLYING TO EPA FOR NPDES PERMITS MUST SUBMIT
FORMS 1 (EPA FORM 3510-1, OMB NO. 158-RO175) AND 2B (EPA FORM 3510-2B,
OMB NO. 158-RO174). EPA FORM 7550-7 (OMB NO. 156-RO103) WILL BE
SUPERSEDED. ANY EXISTING FACILITY APPLYING FOR A NEW PERMIT MUST SUBMIT
FORMS 1 AND 2B, UNLESS ITS PERMIT EXPIRES ON OR BEFORE NOVEMBER 30, 1980
AND IT HAS ALREADY SUBMITTED EPA FORM 7550-7. SEE 40 CFR 122.53(C)
(PUBLISHED ELSEWHERE IN TODAY'S FEDERAL REGISTER) FOR INFORMATION ON
DEADLINES FOR SUBMISSION.
2. ANY EXISTING INDUSTRIAL (MANUFACTURING, COMMERCIAL, MINING OR
SILVICULTURAL) FACILITY APPLYING TO EPA FOR AN NPDES PERMIT MUST SUBMIT
FORMS 1 AND 2C (EPA FORM 3510-2C, OMB NO. 158-RO173), UNLESS ITS PERMIT
EXPIRES ON OR BEFORE NOVEMBER 30, 1980 AND IT HAS ALREADY SUBMITTED EPA
FORMS 7550-8, 7550-9 OR 7550-23. FORMS 7550-8, -9, AND -23 ARE
SUPERSEDED FOR ALL SUCH DISCHARGERS APPLYING AFTER MAY 19, 1980.
HOWEVER, THEY MUST STILL BE USED BY NPDES NEW SOURCES AND NEW
DISCHARGERS UNTIL FORM 2D IS MADE AVAILABLE. SEE 40 CFR 122.53(C) FOR
INFORMATION ON DEADLINES FOR SUBMISSION.
3. HAZARDOUS WASTE MANAGEMENT FACILITIES MUST SUBMIT FORMS 1 AND 3
(EPA FORM 3510-3, OMB NO. 158-S80004) TO EPA NO LATER THAN 180 DAYS
AFTER PROMULGATION OF 40 CFR PART 261. (THESE FACILITIES MUST ALSO
SUBMIT FRIEF NOTIFICATION FORMS TO EPA NO LATER THAN 90 DAYS AFTER
PROMULGATION OF 40 CFR PART 261. SEE 45 FR 12746, FEBRUARY 26, 1980.)
1. FORMS 1, 2B, AND 2C: FANNY KNOX OR DOV WEITMAN, PERMITS DIVISION
(EN-336), ENVIRONMENTAL PROTECTION AGENCY, 401 M STREET SW, WASHINGTON,
D.C. 20460 (202) 426-7010.
2. FORM 3: ART GLAZER OR ALLEN PEARCE, OFFICE OF SOLID WASTE
(WH-563), ENVIRONMENTAL PROTECTION AGENCY, 401 M STREET SW, WASHINGTON,
D. C. 20460 (202 755-9150.
I. OVERVIEW OF CONSOLIDATED APPLICATION FORMS
II. GENERAL APPLICATION REQUIREMENTS FOR ALL PERMIT PROGRAMS:
SECTION 122.4 AND FORM 1
III. NPDES FORMS 2B AND 2C AND RELATED NPDES REGULATIONS
A. INTRODUCTION
1. OVERVIEW OF THIS PREAMBLE DISCUSSION
2. USE OF A SINGLE FORM FOR ALL EXISTING INDUSTRIAL DISCHARGERS
B. STRATEGY FOR ISSUING PERMITS TO CONTROL DISCHARGES OF TOXIC
POLLUTANTS
1. GENERAL APPROACH TO PERMIT WRITING
2. NEW REGULATIONS TO INSURE THE CONTROL OF TOXIC POLLUTANTS
1. SUMMARY OF REQUIREMENTS
I. REQUIREMENT TO CONTROL ALL SIGNIFICANT DISCHARGES OF TOXIC
POLLUTANTS THROUGH PERMIT LIMITS: SECTION 122.62(E)
II. REGULATION OF TOXIC POLLUTANTS NOT LIMITED IN PERMITS
(A) NOTIFICATION OF INCREASED DISCHARGES OF TOXIC POLLUTANTS:
SECTION 122.15(A)(5)(VIII)-(X)
B. DISCUSSION OF CHANGES FROM PROPOSED REQUIREMENTS
3. TOXICITY-BASED LIMITS: SECTION 125.3(C)(4)
4. INDICATOR LIMITS TO CONTROL TOXIC POLLUTANTS OR HAZARDOUS
SUBSTANCES: SECTION 125.3(G)
C. NPDES APPLICATION REQUIREMENTS FOR CONCENTRATED ANIMAL FEEDING
OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES: SECTION 122.53(E)
AND FORM 2B
NPDES APPLICATION REQUIREMENTS FOR EXISTING INDUSTRIAL DISCHARGERS:
SECTION 122.53(D) AND FORM 2C
1. GENERAL DISCUSSION OF REQUIREMENTS; PUBLIC AVAILABILITY OF
INFORMATION
2. REQUIREE ANALYSES AND ESTIMATES OF POLLUTANT DISCHARGES
A. TOXIC POLLUTANTS: SECTION 122.53(D)(7)(II) AND (V) AND ITEM V-C
B. OTHER POLLUTANTS
II REQUIRED ANALYSES: SECTION 122.53(D)(7)(I) AND ITEM V-A
II. REQUIRED REPORTING OF PRESENCE OR ABSENCE AND, IF PRESENT,
REQUIRED ANALYSES: SECTION 122.53(D)(7)(III) AND ITEM V-B
III. REQUIRED REPORTING OF PRESENCE OR ABSENCE OF ASBESTOS AND
HAZARDOUS SUBSTANCES: SECTION 122.53(D)(7)(IV) AND ITEM V-D.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 003 OF 74
COSTLE D M ADMINISTRATOR
EPA
113727
REGULATION
C. GENERAL CONCERNS IN SAMPLING, ANALYSIS AND REPORTING OF TESTING
RESULTS
I. SAMPLING REQUIREMENTS
II. REPORTING OF ANALYTICAL TESTING RESULTS
(A) DETECTION LIMITS
(B) MISCELLANEOUS
D. RESPONSE TO COMMENTS ADVOCATING BIOLOGICAL MONITORING FOR PNDES-
PERMIT APPLICATIONS
3. OTHER APPLICATION REQUIREMENTS
A. OUTFALL LOCATION: SECTION 122.53(D)(1) AND ITEM I
B. FLOWS, SOURCES OF POLLUTION AND TREATMENT TECHNOLOGIES: SECTION
122.53(D)(2)-(4) AND ITEM II
C. MAXIMUM PRODUCTION: SECTION 122.53(D)(5) AND ITEM III
D. CURRENTLY REQUIRED CONSTRUCTION, UPGARDING OR OPERATION OF WASTE
TREATMENT EQUIPMENT SECTION 122.53(D)(6) AND ITEM IV
E. POTENTIAL DISCHARGES OF TOXIC POLLUTANTS
I. TOXIC POLLUTANTS USED OR PRODUCED BY THE APPLICANT: SECTION
122.53(D)(9) AND ITEM VI-A
II. PREDICTED POTENTIAL INCREASES IN DISCHARGES OF POLLUTANTS:
SECTION 122.53(D)610) AND ITEM VI-B AND C
F. RESULTS OF PREVIOUS BIOMONITORING: SECTION 122.53(D)(11) AND
ITEM VII
G. LABORATORY CONDUCTING ANALYSES: SECTION 122.53(D)(12) AND ITEM
VIII
H. OTHER INFORMATION REQUIRED BY THE DIRECTOR ON A CASE-BY-CASE
BASIS: SECTION 122.53(D)(13)
4. PROPOSED APPLICATION REQUIREMENTS DELETED FROM THE FINAL
REGULATIONS AND RORM
A. OPTIONAL REPORTING OF DISCHARGES OF AHZARDOUS SUBSTANCES
B. SUBMISSION OF DATA ON ADDITIONAL POLLUTANTS
C. ANCILLARY ACTIVITIES WHICH MAY RESULT IN DISCHARGES OF TOXIC
POLLUTANTS OR HAZARDOUS SUBSTANCES -- BEST MANAGEMENT PRACTICES PROGRAMS
E. MONITORING REQUIREMENTS
1. CHEMICAL MONITORING
2. BIOLOGICAL MONITORING
F. ECONOMIC AND RESOURCE IMPACTS
1. UNIT COSTS OF SAMPLING AND ANALYSIS
2. UNIT REPORTING COSTS
3. TOTAL INCREMENTAL COSTS
4. ECONOMIC IMPACR UPON SELECTED INDUSTRIES
5. IMPACT UNPON INDEPENDENT LABORATORY CAPACITY
6. SMALL BUSINESS EXEMPTION
A. GENERAL
B. COAL MINES
IV. PART A OF HAZARDOUS WASTE APPLICATION REQUIREMENTS: SECTION
122.24 AND FORM 3
APPLICATION FORMS
TODAY EPA IS PUBLISHING IN FINAL FORM THE FIRST MAJOR REGULATORY
PRODUCTS OF ITS PERMITS CONSOLIDATION EFFORST. THESE PRODUCTS, WHICH
WERE PROPOSED ON JUNE 14, 1979 (44 FR 34244 AND 44 FR 34346), ARE
CONSOLIDATED PERMIT REGULATIONS AND A CONSOLIDATED SET OF PERMIT
APPLICATION FORMS.
THE CONSOLIDATED PERMIT REGULATIONS ARE DESIGNED TO PROMOTE
CONSISTENCY IN SEVERAL OF EPA'S ESTABLISHED AND NEWLY-DEVELOPED PERMIT
PROGRAMS. THE REGULATIONS ARE PROMULGATED AS 40 CFR PARTS 122-124
ELSEWHERE IN TODAY'S FEDERAL REGISTER. THEY APPLY TO FIVE PERMIT
PROGRAMS:
(1) THE HAZARDOUS WASTE PERMIT PROGRAM UNDER SECTION 3005 OF THE
RESOURCE CONSERVATION AND RECOVERY ACT (RCRA);
(2) THE UNDERGROUND INJECTION CONTROL (UIC) PERMIT PROGRAM UNDER PART
C OF THE SAFE DRINKING WATER ACT (SDWA);
(3) THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
PERMIT PROGRAM UNDER SECTION 402 OF THE CLEAN WATER ACT (CWA);
(4) THE DREDGED OR FILL MATERIAL PERMIT PROGRAM UNDER SECTION 404 OF
CWA; AND
(5) THE PREVENTION OF SIGNIFICANT DETERIORATION (PSD) PERMIT PROGRAM
UNDER PART C OF THE CLEAN AIR ACT (CAA).
THE EPA CONSOLIDATED APPLICATION FORMS WILL BE USED BY APPLICANTS FOR
EPA-ISSUED PERMITS UNDER THE ABOVE PERMIT PROGRAMS. HOWEVER, SINCE EPA
DOES NOT ISSUE ANY PERMITS UNDER THE DREDGED OR FILL MATERIAL PROGRAM,
IT IS NOT DEVELOPING A FORM FOR THAT PROGRAM. (THESE PERMITS ARE ISSUED
BY THE U.S. ARMY CORPS OF ENGINEERS AND BY STATES APPROVED BY EPA.)
THE CONSOLIDATED APPLICATION FORMS WILL, WHEN COMPLETE, CONSIST OF
THE FOLLOWING:
FORM 1 -- GENERAL INFORMATION (ALL PERMITS).
FORM 2 -- DISCHARGES TO SURFACE WATER (NPDES PERMITS).
A. PUBLICLY OWNED TREATMENT WORKS.
B. CONCENTRATED ANIMAL FEEDING OPERATIONS AND AQUATIC ANIMAL
PRODUCTION FACILITIES.
C. EXISTING MANUFACTURING, COMMERCIAL, MINING AND SILIVULTURAL
OPERATIONS.
D. NEW MANUFACTURING, COMMERCIAL, MINING AND SILVICULTURAL
OPERATIONS.
FORM 3 -- HAZARDOUS WASTE INFORMATION SUMMARY (RCRA PERMITS).
FORM 4 -- UNDERGROUND INJECTION OF FLUIDS (UIC PERMITS).
FORM 5 -- AIR EMISSIONS IN OR NEAR ATTAINMENT AREAS (PSD PERMITS).
THE ABOVE ORGANIZATION DIFFERS SLIGHTLY FROM THAT SET OUT IN THE JUNE
14 NOTICE. IN THAT NOTICE, EPA PROPOSED TO COMBINE ALL APPLICATION
REQUIREMENTS FOR PROPOSED FACILITIES INTO A SINGLE FORM. UPON
RECONSIDERATION, EPA HAS DETERMINED THAT, APART FROM THE COMMON ELEMENTS
CONSOLIDATED IN FORM 1, THE INFORMATIONAL NEEDS OF THE VARIOUS PROGRAMS
DIFFER SIGNIFICANTLY FOR PROPOSED SOURCES AS WELL AS EXISTING SOURCES.
THUS IT MAKES SENSE TO KEEP THEM SEPARATE, AS OUTLINED ABOVE.
THIS NOTICE CONTAINS FORMS 1, 2B, 2C, AND 3, WHICH MUST BE USED AS
SET FORTH ABOVE UNDER "DATES." AS MENTIONED IN THE JUNE 14 PREAMBLE AT
PAGE 34347, EPA HAD HOPED TO PUBLISH DRAFTS OF FORMS 2A, 2D (PROPOSED
FORM 5), AND 5 IN DECEMBER 1979. FORMS 2A AND 2D HAVE BEEN DELAYED
SOMEWHAT DUE TO THE NEED TO CONCENTRATE AGENCY RESOURCES ON FINALIZING
FORMS 1, 2B, 2C, AND 3, AND ON PROMULGATING FINAL CONSOLIDATED
REGULATIONS. DEVELOPMENT OF FORM 5 HAS BEEN DELAYED AS A RESULT OF
ALABAMA POWER V. COSTLE (D.C. CIR., 1979), WHICH REQUIRED EPA TO
SUBSTANTIALLY REVISE SEVERAL MAJOR ASPECTS OF THE PSD PROGRAM
REGULATIONS. EPA CURRENTLY ANTICIPATES THAT DRAFTS OF FORMS 2A, 2D, AND
4 WILL BE PUBLISHED IN JUNE 1980. THE DATE FOR PUBLICATION OF A DRAFT
OF FORM 5 IS CURRENTLY UNCERTAIN. APPLICANTS FOR PSD PERMITS SHOULD
CONTACT THEIR LOCAL EPA REGIONAL OFFICES FOR INFORMATION ON HOW TO APPLY
FOR PSD PERMITS PENDING AVAILABILITY OF FORM 5.
THE SET OF CONSOLIDATED APPLICATION FORMS ARE REQUIRED TO BE USED
ONLY FOR APPLICATIONS TO EPA. WHERE APPROVED STATES HAVE PERMIT-ISSUING
AUTHORITY, THEY MAY USE THEIR OWN FORMS. THESE FORMS MUST, HOWEVER,
REQUIRE AT LEAST THE INFORMATION REQUIRED BY THE APPLICATION
REQUIREMENTS CONTAINED IN 40 CFR PART 122. IN ADDITION, STATES MAY
REQUIRE INFORMATION BEYOND THAT REQUIRED BY EPA. EPA ENCOURAGES STATES
TO CONSOLIDATE THEIR PROGRAMS AND FORMS AND HOPES THAT THE EPA
CONSOLIDATED APPLICATION FORMS WILL PROVIDE A USEFUL MODEL TO THE
STATES.
OF COURSE, STATES MAY CHOOSE TO USE EPA'S FORMS. EPA HAS IN THE PAST
PROVIDED NPDES FORMS TO STATES WISHING TO USE EPA FORMS. THIS PRACTICE
WILL CONTINUE IN THE FUTURE FOR ALL OF THE CONSOLIDATED PERMIT
APPLICATION FORMS.
STATES MAY BE ABLE TO CONSOLIDATE STATE PERMIT APPLICATION FORMS FOR
PERMIT PROGRAMS OTHER THAN THOSE COVERED BY EPA'S CONSOLIDATED FORMS.
COMBINATION OF FORMS FOR PSD AND NONATTAINMENT PERMIT APPLICATIONS UNDER
PARTS C AND D OF THE CLEAN AIR ACT MIGHT PROVE PARTICULARLY USEFUL.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 004 OF 74
COSTLE D M ADMINISTRATOR
EPA
113728
REGULATION
ONE COMMENTER SUGGESTED THAT EPA REQUIRE STATES TO USE THE SAME FORM
AS EPA. THIS SUGGESTION HAS NOT BEEN ADOPTED, BECAUSE STATES ARE
ALLOWED BY THE APPLICABLE LAWS TO HAVE MORE STRINGENT APPLICATION
REQUIREMENTS THAN EPA. IN ADDITION, EPA SEES NO COMPELLING NEED TO
REQUIRE A UNIFORM APPLICATION FORM IN ALL STATES. INCLUSION OF UNIFORM
MINIMUM APPLICATION REQUIREMENTS IN 40 CFR PART 122, COUPLED WITH EPA
APPROVAL OF STATE PROGRAM FORMS UNDER 40 CFR 123.4(D), WILL PROVIDE
SUFFICIENT UNIFORMITY TO MEET PROGRAM NEEDS.
EPA WAS PLEASED TO RECEIVE GENERALLY FAVORABLE COMMENTS FROM THE
PUBLIC ON THE CONCEPT OF CONSOLIDATING THE APPLICATION FORMS. AS
CITIZENS FOR A BETTER ENVIRONMENT POINTED OUT, THIS CONSOLIDATION WILL
NOT ONLY REDUCE PAPERWORK BUT WILL ALSO PROVIDE A "CONCISE AND CLEAR
RECORD OF THE ULTIMATE FATE OF ALL OF THE POLLUTANTS GENERATED BY A
FACILITY, WHETHER THESE POLLUTANTS ARE DISCHARGED TO AIR, WATER OR
LAND." STATES WERE ALSO SUPPORTIVE OF EPA'S EFFORT.
SOME INDUSTRY C-MMENTERS DID, HOWEVER, EXPRESS TWO MAJOR ALTHOUGH IN
GENERAL THEY DID NOT OBJECT TO THE CONCEPT OF CONSOLIDATING APPLICATION
FORMS.
THE FIRST CONCERN EXPRESSED BY INDUSTRY WAS AN EXTENSION OF THE
GENERAL CONCERNS RAISED ABOUT THE CONSOLIDATED PERMITS REGULATIONS;
THAT APPLICATION AND PERMIT REQUIREMENTS OF ONE PROGRAM SHOULD NOT BE
APPLIED TO ANOTHER PROGRAM AND THAT APPLICATION PROCEDURES UNDER ONE
PROGRAM SHOULD NOT BE ALLOWED TO DELAY PROCEDURES UNDER ANOTHER PROGRAM.
EPA AGREES THAT CONSOLIDATION SHOULD NOT AFFECT SUBSTANTIVE
REQUIREMENTS OF APPLICABLE LAW AND THAT CONSOLIDATED PROCEDURES SHOULD
BE USED TO EXPIDITE RATHER THAN DELAY PERMIT ISSUANCE. THE PREAMBLE TO
PARTS 122 AND 124 OF THE CONSOLIDATED REGULATIONS DISCUSSES THESE ISSUES
IN DETAIL. THE IMPORTANT POINT IS THAT DIFFERENT PROGRAM-SPECIFIC
APPLICATION FORMS (E.G., FORMS 2C AND 3) MAY BE SUBMITTED SEPARATELY
AND, IF NECESSARY TO AVOID DELAY, PROCESSED SEPARATELY.
THE SECOND CONCERN EXPRESSED BY COMMENTERS FROM SEVERAL INDUSTRIES
(PARTICULARLY FARMING AND COAL MINING, BUT ALSO OIL AND GAS PRODUCING,
STEAM ELECTRIC GENERATING, AND CEMENT AND CONCRETE INDUSTRIES) WAS THAT
INDUSTRY-SPECIFIC FORMS SHOULD BE DEVELOPED FOR EACH INDUSTRY, RESULTING
IN SIMPLIFICATION FOR APPLICANTS. EPA AGREES THAT DEVELOPMENT OF
INDUSTRY-SPECIFIC FORMS MAY BE USEFUL IN CERTAIN SITUATIONS, ALTHOUGH
ADMINISTRATIVE RESOURCE CONSTRAINTS GENERALLY PRECLUDE SUCH DEVELOPMENT
FOR EACH REGULATED INDUSTRY. EPA HAS BEEN ABLE TO TAKE STEPS TO DEVELOP
SPECIFIC REQUIREMENTS FOR THE FARMING AND COAL MINING INDUSTRIES. EPA
HAS SEPARATED AGRICULTURAL AND AQUATIC OPERATIONS FROM ALL OTHER
DISCHARGERS OF POLLUTANTS BY DEVELOPING FORM 2B. SIMILARLY, EPA IS
WORKING WITH THE DEPARTMENT OF THE INTERIOR'S OFFICE OF SURFACE MINING
TO DEVELOP A CONSISTENT SET OF SPECIFIC APPLICATION REQUIREMENTS FOR THE
COAL MINING INDUSTRY (SEE SECTION III.F.6.B OF THIS PREAMBLE; SEE ALSO
44 FR 55322, SEPTEMBER 25, 1979).
REQUIREMENTS FOR ALL PERMIT
PROGRAMS: SECTION 122.4 AND FORM 1
FORM 1 OF THE CONSOLIDATED APPLICATION FORMS REQUIRES IDENTIFICATION
OF THE APPLICANT AND GENERAL INFORMATION SHOWING THE VARIOUS PATHWAYS BY
WHICH THE FACILITY RELEASES POLLUTANTS TO THE ENVIRONMENT. THIS
INFORMATION IS USED BY THE APPLICANT TO DETERMINE WHAT PERMITS ARE
NEEDED BY THE FACILITY AND WHICH SUPPLEMENTAL FORMS MUST BE SUBMITTED IN
ADDITION TO FORM 1. MOST OF THE REQUIREMENTS OF FORM 1 ALSO APPEAR IN
SECTION 122.4 OF THE CONSOLIDATED REGULATIONS.
THE JUNE 14 DRAFT OF FORM 1 HAS BEEN CHANGED IN SOME MINOR RESPECTS
IN THE FINAL VERSION. IN ADDITION, THE INSTRUCTIONS HAVE BEEN SHORTENED
AND CLARIFIED BY DELETING REPITITIOUS INFORMATION AND MAKING APPROPRIATE
EDITORIAL CHANGES. THE INSTRUCTIONS HAVE ALSO BEEN AMENDED TO REFLECT
PROGRAM CHANGES IN THE FINAL CONSOLIDATED (AND OTHER PROGRAM)
REGULATIONS AND TO REFLECT THE CHANGES IN THE PSD PROGRAM REQUIRED BY
ALABAMA POWER V. COSTLE.
DIVERGENT PHILOSOPHICAL VIEWPOINTS WERE EXPRESSED IN COMMENTS BY
INDUSTRY AND ENVIRONMENTAL GROUPS. SEVERAL INDUSTRY COMMENTERS
REFERRING TO ITEMS II (DRAFT ITEM I) AND XI (DRAFT ITEM X) QUESTIONED
EPA'S AUTHORITY TO REQUIRE INFORMATION NOT DIRECTLY RELATED TO THE
APPLIED-FOR PERMITS. ITEM II REQUIRES A FACILITY APPLYING FOR A PERMIT
UNDER ONE PROGRAM TO STATE WHETHER OR NOT IT ENGAGES IN ANY ACTIVITY
REGULATED UNDER ANY OF THE OTHER CONSOLIDATED EPA PERMIT PROGRAMS. ITEM
XI REQUIRES SUBMISSION OF A MAP SHOWING THE VARIOUS TYPES OF WASTES
WHICH THE FACILITY RELEASES TO THE ENVIRONMENT AND THE VARIOUS WAYS
THOSE WASTES ARE RELEASED. FOR EXAMPLE, A FACILITY NEEDING AN NPDES
PERMIT MUST ALSO STATE WHETHER IT TREATS, STORES OR DISPOSES OF
HAZARDOUS WASTE AND, IF SO, MUST SHOW ON A MAP WHERE IT DOES SO.
ENVIRONMENTALISSTS ARGUED TO THE CONTRARY THAT FORM 1 SHOULD REQUIRE
MUCH MORE DETAILED INFORMATION SHOWING THE MOVEMENT OF ALL WASTE STREAM
COMPONENTS IN AN INDUSTRIAL PROCESS, FROM THE INTRODUCTION OF RAW
MATERIALS THROUGH PROCESSING TO ULTIMATE RELEASE.
EPA HAS CONCLUDED, AFTER CONSIDERING BOTH THE INDUSTRIAL AND
ENVIRONMENTAL ARGUMENTS, THAT THE MI-DLE COURSE WHICH IT ADOPTED IN
DRAFT FORM 1 SHOULD BE RETAINED AS THE MOST SUITABLE ONE FOR FORM'S
PURPOSES. EPA BELIEVES THAT RESPONSIBLE ENVIRONMENTAL MANAGEMENT
REQUIRES A UNIFIED EXAMINATION OF A FACILITY'S TOTAL RESIDUAL WASTE
STREAM. IN RECENT YEARS, THE INTERRELATION OF VARIOUS ENVIRONMENTAL
PROGRAMS HAS BECOME INCREASINGLY CLEAR. SEE, FOR EXAMPLE, SECTION 1006
OF RCRA, REQUIRING EPA TO INTEGRATE ALL PROVISIONS OF RCRA, FOR PURPOSES
OF ADMINISTRATION AND ENFORCEMENT, WITH THE APPROPRIATE PROVISIONS OF
THE CLEAN AIR ACT, CLEAN WATER ACT, SAFE DRINKING WATER ACT, AND CERTAIN
OTHER ENVIRONMENTAL LAWS ADMINISTERED BY EPA.
EPA IS RESPONDING TO THIS NEED THROUGH ITS CONSOLIDATED PERMIT
REGULATIONS AND THROUGH ITS CONSOLIDATED APPLICATION FORMS, PARTICULARLY
FORM 1. BECAUSE THE BURDEN ON A FACILITY TO LIST AND TO INDICATE ON A
MAP ITS RELEASES OF POLLUTANTS TO THE ENVIRONMENT IS MINIMAL, THE
ENVIRONMENTAL BENEFIT OF PROVIDING THIS INFORMATION IS NOT COUNTERVAILED
BY A SUBSTANTIAL BURDEN ON INDUSTRY.
HOWEVER, BECAUSE OF THE DIFFERING INFORMATIONAL NEEDS OF THE VARIOUS
CONSOLIDATED PROGRAMS, THE DETAILED INFORMATION DESIRED BY THE
ENVIRONMENTAL COMMENTERS IS NOT REQUIRED BY FORM 1. RATHER, ANY
DETAILED INFORMATION REQUIRED TO MAKE PERMIT ISSUANCE DECISIONS UNDER A
PARTICULAR PROGRAM'S SUPPLEMENTAL FORM. FORM 1 THUS FUNCTIONS AS A
"ROAD MAP," LEADING THE APPLICANT TO THE DETAILED INFORMATIONAL
REQUIREMENTS RELEVANT TO ITS OPERATION.
SPECIFIC ITEMS ON FORM 1 WHICH WERE OF INTEREST TO COMMENTERS ARE
DISCUSSED BELOW:
ITEM I (ITEM II IN THE JUNE 14 DRAFT OF FORM 1): EPA HAS RENAMED THE
"FACILITY ID NUMBER," IT WILL NOW BE REFERRED TO AS "EPA ID NUMBER." IN
RESPONSE TO COMMENTS (PARTICULARLY FROM FARMERS AND OIL AND GAS
PRODUCERS) THAT DUNN AND BRADSTREET (DUNS) NUMBERS HAVE NOT BEEN
ASSIGNED TO CERTAIN FACILITIES BEFORE THEY FILL OUT THEIR APPLICATIONS.
IN MANY INSTANCES, THE ID NUMBER (WHICH WILL BE OBTAINED BY EPA FROM
DUNN AND BRADSTREET WHERE NONE HAS EXISTED PREVIOUSLY) WILL BE ON A
PREPRINTED LABEL MAILED TO THE APPLICANT WHICH CONTAINS ITEMS I, III
(FACILITY NAME, V (FACILITY MAILING ADDRESS), AND VI (FACILITY LOCATION.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 005 OF 74
COSTLE D M ADMINISTRATOR
EPA
113729
REGULATION
IN OTHER INSTANCES, EPA WILL INDICATE THE ID NUMBER ON THE OUTSIDE OF
THE ENVELOPE USED TO MAIL THE APPLICATION FORM TO THE APPLICANT.
ITEM II (ITEM I IN THE JUNE 14 DRAFT): A THIRD COLUMN HAS BEEN ADDED
TO THIS ITEM, AS REQUESTED BY SOME COMMENTERS, FOR APPLICANTS TO
INDICATE WHICH SUPPLEMENTAL FORMS ARE BEING SUBMITTED IN ADDITION TO
FORM 1. EPA HAS ALSO ADOPTED A COMMENT REQUESTING THAT THE INSTRUCTIONS
STATE THAT A FACILITY WHICH ANSWERS YES TO A QUESTION BUT WHICH ALREADY
HAS A PERMIT COVERING THAT ACTIVITY NEED NOT FILE A NEW APPLICATION,
UNLESS THE APPLICANT IS FILING FOR A PERMIT RENEWAL. SOME COMMENTERS
CORRECTLY NOTED THAT QUESTIONS E WAS OVERLY BROAD. QUESTIONS E THROUGH
H HAVE BEEN REDRAFTED TO CLARIFY THAT ONLY INFORMATION RELATED TO THE
FACILITY SEEKING A PERMIT IS REQUESTED AND NOT, FOR EXAMPLE, INFORMATION
CONCERNING HAZARDOUS WASTE DISPOSED OF BY THE SAME OWNER OR OPERATOR AT
A DIFFERENT FACILITY IN A DISTANT LOCATION.
ITEM IV: TWO ENVIRONMENTAL COMMENTERS REQUESTED THAT EACH APPLICANT
BE REQUIRED TO LIST A TELEPHONE NUMBER AT WHICH A TECHNICALLY COMPETENT
PERSON COULD BE REACHED 24 HOURS A DAY. EPA BELIEVES THIS IS
UNNECESSARY. IT IS TRUE THAT THE HAZARDOUS WASTE PERMIT PROGRAM
APPROPRIATELY REQUIRES EACH FACILITY THAT TREATS, STORES OR DISPOSES OF
HAZARDOUS WASTE TO HAVE AN EMERGENCY COORDINATOR PRESENT OR ON CALL (40
CFR PART 264). HOWEVER, DIFFERENT PEOPLE ARE LIKELY TO FUNCTION AS
EMERGENCY COORDINATORS AT DIFFERENT TIMES; THUS THE IDENTIFICATION OF A
SINGLE PERSON OR PHONE NUMBER IN THE APPLICATION IS LIKELY TO BECOME
OBSOLETE SOON AFTER THE APPLICATION IS FILED. IN THE EVENT OF AN
EMERGENCY NEEDING IMMEDIATE ATTENTION BY THE PERMITTEE DURING
NON-BUSINESS HOURS, HIGH-LEVEL OFFICIALS OF THE MERMITTED FACILITY MAY
GENERALLY BE CONTACTED IMMEDIATELY WITHOUT DIFFICULTY. MOREOVER, THE
NATIONAL RESPONSES CENTER MAY BE REACHED 24 HOURS A DAY AT 800=424-8802
TO RESPOND TO EMERGENCIES REQUIRING IMMEDIATE ASSISTANCE OR ADVICE.
ITEM VII: SEVERAL COMMENTERS REQUESTED CLARIFICATION CONCERNING SIC
CODES. THE PURPOSES OF REQUESTING SIC CODES ARE: (1) TO PROVIDE PERMIT
WRITERS WITH AN ADDITIONAL MEANS OF CHECKING WHETHER WASTES OR
POLLUTANTS LISTED ON A SUPPLEMENTAL FORM INCLUDE LL OF THOSE WHICH THE
APPLICANT MIGHT BE EXPECTED TO RELEASE; (2) TO PROVIDE ONE MEANS FOR
NPDES AND PSD PERMIT WRITERS TO DETERMINE WHETHER A PARTICULAR INDUSTRY
GUIDELINE OR STANDARD APPLIES; AND (3) TO PROVIDE A DATA BASE TO ASSIST
EPA IN CORRELATING INDUSTRIAL SUBCATEGORIES (INDICATED IN ITEM VII) TO
TYPES OF WASTES OR POLLUTANTS BEING RELEASED TO THE ENVIRONMENT
(INDICATED IN ITEM II). EPA RECOGNIZES THAT DETERMINING SIC CODES IS AN
IMPRECISE EXERCISE AND REQUIRES SIMPLY THAT EACH APPLICANT USE ITS BEST
JUDGEMENT TO LIST AT MOST FOUR SIC CODES, IN ORDER OF PRIORITY, WHICH
MOST ACCURATELY DEFINE GOODS (FINAL OR INTERMEDIATE) AND SERVICES
CREATED OR PRODUCED BY THE APPLICANT. APPLICANTS NEEDING ASSISTANCE IN
ANSWERING THE QUESTION ARE NOW DIRECTED BY THE INSTRUCTIONS, AS
SUGGESTED BY ONE COMMENTER, TO CONTACT THEIR EPA REGIONAL OFFICES.
TWO COMMENTERS NOTED THAT OFF-SITE HAZARDOUS WASTE MANAGEMENT
FACILITIES HAVE NO SPECIFIC SIC CODE; IN SUCH CASES, SIC CODE 9999
("NONCLASSIFIABLE ESTABLISHMENTS") WOULD APPLY. THE NUMBER 9999,
TOGETHER WITH THE APPLICANT'S RESPONSES TO ITEM I, QUESTION E AND ITEM
XII WILL INDICATE THAT THE FACILITY IS AN OFF-SITE HWM FACILITY.
ITEM VIII: COMMENTERS CORRECTLY NOTED THAT FACILITIES MAY BE
OPERATED AND APPLICATIONS MAY BE SUBMITTED BY PERSONS WHO ARE NOT
OWNERS. FORM 1 NOW PRESUMES THAT THE APPLICANT IS THE OPERATOR OF THE
FACILITY. IT SHOULD BE NOTCD THAT 40 CFR 122.6, WHICH APPLIES TO THE
NPDES, HAZARDOUS WASTE AND UIC PROGRAMS, PROVIDES: "WHERE A FACILITY OR
ACTIVITY IS OWNED BY ONE PERSON BUT IS OPERATED BY ANOTHER PERSON, IT IS
THE OPERATOR'S DUTY TO OBTAIN A PERMIT." AN ADDITIONAL QUESTION HAS BEEN
ADDED TO DETERMINE WHETHER THE OPERATOR/APPLICANT IS ALSO THE OWNER OF
THE FACILITY.
ITEM IX: A NEW ITEM ASKS WHETHCR THE FACILITY IS LOCATED ON INDIAN
LANDS. THE SIGNIFICANCE OF THIS QUESTION IS JURISDICTIONAL; SEE 40 CFR
123.1(F) AND THE ACCOMPANYING PREAMBLE DISCUSSION. A REFERENCE IN DRAFT
ITEM VIII-C TO INDIAN LANDS WAS DELETED, SINCE THAT ITEM IS DCSIGNED TO
IDENTIFY THE STATUS OF THE OPERATOR, NOT OF THE LAND ITSELF.
ITEM X (DRAFT ITEM IX): ONE COMMENTER QUESTIONED THE NEED FOR MORE
THAN ONE PERMIT NUMBER PER FACILITY. EPA DOES INTEND IN THE FUTURE TO
USE A COMMON NUMBER FOR EACH PERMIT ISSUED TO A PARTICULAR FACILITY
(EXCEPT FOR A ONE-LETTER PREFIX INDICATING UNDER WHICH PROGRAM THE
PERMIT HAS BEEN ISSUED). HOWEVER, EXISTING NPDES AND PSD PERMITS AS
WE-L AS FUTURE PERMITS UNDER "OTHER" PERMIT PROGRAMS, NECESSITATE
PROVISION IN THE FORM FOR INSERTION OF PERMIT NQMBERS.
A FEW COMMENTERS OBJECTED TO THIS ITEM AND SUGGESTED THAT ONLY
FEDERAL PERMITS OR ONLY PERMITS RELEVANT TO THE ONE APPLIED FOR BE
REQUIRED. HOWEVER, EPA BELIEVES THAT IDENTIFICATION OF THE VARIOUS
ENVIRONMENTAL PERMITS ISSUED TO THE FACILITY WILL PROMOTE COOPERATION
AMONG VARIOUS AGENCIES AND OFFICES IN REGULATING THE FACILITY AND WILL
ULTIMATELY BENEFIT THE FACILITY AS WELL.
ITEM XI (DRAFT ITEM X): SEVERAL COMMENTERS OBJECTED TO THE
REQUIREMENT THAT THE MAP EXTEND AT LEAS ONE MILE BEYOND THE FACILITY
BOUNDARIES. HOWEVER, THIS REQUIREMENT HAS BEEN RETAINED, SINCE THE
DISPOSAL OR DISCHARGE OF WASTES IS LIKELY TO POLLUTE THE ADJACENT
ENVIRONMENT THROUGH SUCH MEANS AS SURFACE OR GROUND WATER MOVEMENT.
SEVERAL OTHER COMMENTERS CORRECTLY NOTED THAT U.S. GEOLOGICAL SERVICE
TOPOGRAPHIC MAPS AT APPROPRIATE SCALE ARE UNAVAILABLE FOR CERTAIN
REGIONS OF THE UNITED STATES. THE INSTRUCTION TO THIS ITEM HAVE
THEREFORE BEEN MODIFIED TO ALLOW THE USE OF A PLAT MAP OR OTHER
APPROPRIATE MAP WHERE AN APPROPRIATELY SIZED TOPOGRAPHIC MAP IS
UNAVAILABLE.
SEVERAL COMMENTERS SUGGESTED THAT APPLICANTS NOT BE REQUIRED TO SHOW
CERTAIN ITEMS ON THE MAP (E.G., RIVERS WHICH DO NOT RECEIVE ANY
DISCHARGE, AND RIVERS, WELLS AND SPRINGS UPHILL OF A FACILITY). EPA
NOTES, HOWEVER, THAT THESE FEATURES ARE OFTEN RELEVANT TO AN
UNDERSTANDING OF THE GEOLOGICAL AND HYDROLOGICAL CONSEQUENCES OF A
DISCHARGE OR DISPOSAL AT THE SITE. FURTHERMORE, MOST OF THIS
INFORMATION IS GENERALLY INDICATED ON U.S.G.S. MAPS AND REQUIRES NO WORK
BY APPLICANTS.
SEVERAL COMMENTERS (PARTICULARLY OIL AND GAS PRODUCERS)
CORRECTLY POINTED OUT THAT AN INSTRUCTION TO THIS ITEM WAS OVERLY
BROAD IN REQUIRING IDENTIFICATION ON A MAP OF ALL WELLS CONTAINED
WITHIN ONE MILE OF THE FACILITY'S PROPERTY BOUNDARIES. THE
REQUIREMENT IS NOW LIMITED TO DRINKING WATER WELLS IDENTIFIED IN
THE PUBLIC RECORD OR OTHERWISE KNOWN TO THE APPLICANT.
SOME COMMENTERS SUGGESTED FURTHER THAT THE MAP SHOULD ONLY SHOW SUCH
WELLS WITHIN 1/4 MILE OF THE FACILITY. EPA HAS ACCEPTED THIS
SUGGESTION. IN LIGHT OF THE SLOW MOVEMENT OF GROUNDWATER, THIS
INFORMATION SHOULD BE SUFFICIENT TO PREVENT WELL CONTAMINATION IN CASES
WHERE THE GROUNDWATER BECOMES CONTAMINATED THROUGH FAULTY WASTE DISPOSAL
OR OTHER PRACTICES.
ITEM XIII (DRAFT ITEM XII): SEE 40 CFR 122.6 AND THE ACCOMPANYING
PREAMBLE, PUBLISHED ELSEWHERE IN TODAY'S FEDERAL REGISTER, FOR A
DISCUSSION OF CERTIFICATION AND SIGNATORY REQUIREMENTS.
SEVERAL ENVIRONMENTAL COMMENTERS REQUESTED THAT LATITUDE AND
LONGITUDE INFORMATION BE REQUIRED ON FORM 1. EPA HAS DECIDED TO REQUIRE
THIS INFORMATION ON APPROPRIATE PROGRAM-SPECIFIC FORMS. FORMS 2C AND 3,
PUBLISHED TODAY, REQUIRE THIS INFORMATION. BY USING THE
PROGRAM-SPECIFIC FORMS TO REQUIRE LATITUDE AND LONGITUDE, EPA OBTAINS
MORE PRECISE COORDINATES WHEN WASTEWATER DISCHARGERS AND HAZARDOUS WASTE
DISPOSAL FACILITIES ARE SEVERAL MILES APART.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 006 OF 74
COSTLE D M ADMINISTRATOR
EPA
113730
REGULATION
DISCUSSION
THE NPDES REGULATIONS ON APPLICATION REQUIREMENTS FOR EXISTING
INDUSTRIAL DISCHARGER AND THE NEW EPA APPLICATION FORM FOR THOSE
DISCHARGERS (FORM 2C) HAVE BEEN DEVELOPED PRIMARILY TO HELP IMPLEMENT
THE AGENCY'S STRATEGY FOR THE CONTROL OF DISCHARGES OF TOXIC POLLUTANTS
DESIGNATED UNDER SECTION 307(A) OF THE CLEAN WATER ACT IN THE NEXT ROUND
OF PERMIT REISSUANCES. BECAUSE THE APPLICATION FORM AND REGULATIONS
WERE PUBLISHED TOGETHER AS PART III OF THE JUNE 14, 1979 FEDERAL
REGISTER (44 FR 34393). THE PROPOSED REGULATIONS AND DRAFT FORM 2C WERE
PREFACED BY A LENGTHY PREAMBLE, WHICH EXPLAINED THE CONTEXT IN WHICH THE
NPDES APPLICATION AND RELATED REQUIREMENTS WERE DEVELOPED. THE
DISCUSSION COVERED THE NEED FOR A CASE-BY-CASE DETERMINATION OF LIMITS
IN THE ABSENCE OF EFFLUENT LIMITATIONS GUIDELINES, THE USE OF LIMITS ON
TOXICITY AND INDICATOR PARAMETERS, THE REQUIREMENT TO ANALYZE FOR THE
129 TOXIC POLLUTANTS, THE PURPOSE OF APPLICATION-BASED LIMITS, SOME
SUGGESTED MONITORING SCHEMES TO BE REQUIRED BY PERMITS, AND THE ECONOMIC
AND RESOURCE IMPACTS OF THE REPORTING REQUIREMENTS.
THE REGULATIONS WHICH WERE PROPOSED IN PART III OF THE JUNE 14, 1979
FEDERAL REGISTER ARE PUBLISHED IN FINAL FORM ELSEWHERE IN TODAY'S
FEDERAL REGISTER AS PART OF EPA'S CONSOLIDATED PERMIT PROGRAM
REGULATIONS. THIS IS BEING DONE SO THAT ALL PROGRAM REGULATIONS MAY BE
READ IN ONE PLACE. HOWEVER, THIS PREAMBLE, RATHER THAN THE PREAMBLE TO
THOSE REGULATIONS, WILL DISCUSS THE TOPICS AND REGULATIONS RELATING TO
THE NPDES APPLICATION REQUIREMENTS AND PERMITTING STRATEGY TO EXPLAIN
THE FINAL REGULATIONS IN A UNIFIED MANNER AND TO RESPOND TO COMMENTS
RECEIVED ON THE PROPOSAL.
THE FOLLOWING REGULATIONS WHICH ARE PROMULGATED AS PART OF THE
CONSOLIDATED PERMIT REGULATIONS ARE DISCUSSED IN THIS PREAMBLE INSTEAD
OF IN THE PREAMBLE TO THE CONSOLIDATED PERMIT REGULATIONS:
1. SECTION 122.53(D): APPLICATION REQUIREMENTS FOR EXISTING
INDUSTRIAL DISCHARGERS (PARELLELING FORM 2C).
2. SECTION 122.53(E): APPLICATION REQUIREMENTS FOR CONCENTRATED
ANIMAL FEEDING OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES
(PARELLELING FORM 2B).
3. SECTION 122.61(A): APPLICATION-BASED NOTIFICATION REQUIREMENTS
FOR TOXIC POLLUTANTS.
4. SECTION 122.15(A)(5)(VIII)-(X): MODIFICATION OF PERMITS TO
ADDRESS TOXIC POLLUTANT DISCHARGES NOT ANTICIPATED IN APPLICATIONS OR
PERMITS.
5. SECTION 122.62(E): REQUIREMENT TO SET CASE-BY-CASE LIMITS TO
CONTROL SIGNIFICANT DISCHARGES OF TOXIC POLLUTANTS.
6. SECTION 125.3(C)(4): TOXICITY-BASED LIMITS.
7. SECTION 125.3(G): INDICATOR LIMITS.
INDUSTRIAL DISCHARGERS
SOME COMMENTERS EXPRESSED CONCERN THAT EXISTING SHORT FORMS C AND D
FOR SIMPLE DISCHARGES ARE NOT BEING REPLACED BY NEW SHORT FORMS; RATHER
FORM 2C MUST BE USED. THE REASON IS THAT DETERMINING "SIMPLE"
DISCHARGES IS COMPLEX, GIVEN THE NEW EMPHASIS ON TOXIC POLLUTANTS. MANY
FACTORS WOULD BE RELEVANT IN DETERMINING "SIMPLICITY," SUCH AS SIZE OF
FLOW, TOXICITY OF DISCHARGE, AND TYPE OF OPERATIONS PRODUCING
DISCHARGES. FACTORS RELEVANT TO THE NEED TO RESPOND TO ONE APPLICATION
REQUIREMENT MAY NOT BE RELEVANT TO ANOTHER. FOR EXAMPLE, ALTHOUGH FLOW
WAS USED AS A CRITERION FOR DETERMINING WHO MUST FILL OUT SHORT FORMS C
AND D, THC NEW FORM REQUIRES A PRIMARY INDUSTRY DISCHARGER WITH A SMALL
FLOW TO TEST FOR TOXIC POLLUTANTS, WHILE A SECONDARY INDUSTRY DISCAHRGER
WITH A LARGE FLOW MAY NOT NEED TO DO SO.
EPA HAS SIMPLIFIED FORM 2C AND CLARIFIED THE INSTRUCTIONS TO ASSIST
APPLICANTS IN COMPLETING THE FORM RAPIDLY. SOME OF THE MORE BURDENSOME
REQUIREMENTS WILL IMMEDIATELY BE UNDERSTOOD NOT TO APPLY TO SIMPLE
NON-TOXIC DISCHARGES AND THEREFORE MAY BE MARKED NOT APPLICABLE. FOR
EXAMPLE, ANY SECONDARY INDUSTRY DISCHARGER WHICH DOES NOT DISCHARGE ANY
TOXIC POLLUTANTS OR HAZARDOUS SUBSTANCES NEED NOT TEST FOR POLLUTANTS IN
ITEM V-C, LSIT TOXIC POLLUTANTS IN ITEM VI-A OR HAZARDOUS SUBSTANCES IN
ITEM V-D, OR PREDICT FUTURE INCREASES OF TOXIC POLLUTANT DISCHARGES IN
ITEM VI-B AND C. SIMILARLY, MANY OF THE REMAINING QUESTIONS ALSO APPLY
ONLY TO CERTAIN APPLICANTS, ITEM II-C APPLIES ONLY TO APPLICANTS WITH
INTERMITTENT OR SEASONAL DISCHARGES. ITEM III APPLIES ONLY TO
APPLICANTS WHOSE DISCHARGES ARE COVERED BY EFFLUENT GUIDELINES. ITEM IV
APPLIES ONLY TO APPLICANTS SUBJECT TO WASTE TREATMENT CONSTRUCTION
SCHEDULES. ITEM VII APPLIES ONLY TO APPLICANTS WHO HAVE CONDUCTED
BIOLOGICAL MONITORING TESTS.
A FEW COMMENTERS SUGGESTED THAT FORM 2C REQUIRE ONLY MINIMIL
INFORMATION, WITH THE PERMIT WRITER ABLE TO GO BACK TO THE
APPLICANT TO ASK FOR ANY ADDITIONAL INFORMATION. HOWEVER, THIS
WOULD IMPOSE TOO GREAT A BURDEN ON THE PERMIT WRITER. IT ALSO
WOULD RESULT IN THE IMPOSITION OF UNEQUAL BURDENS ON SIMILAR
APPLICANTS.
PERMITS TO CONTROL DISCHARGES OF TOXIC
POLLUTANTS
THE 1977 AMENDMENTS TO THE CLEAN WATER ACT PLACED A NEW EMPHASIS ON
THE CONTROL OF TOXIC POLLUTANTS IN THE NPDES PROGRAM. EPA IS
IMPLEMENTING THE AMENDMENTS BY DEVELOPING EFFLUENT LIMITATIONS
GUIDELINES, WATER QUALITY CRITERIA, AND TEST METHODS FOR THESE
POLLUTANTS. EPA WILL SOON BEGIN APPLYING THE NEW STATUTORY AND
REGULATORY STANDARDS TO SPECIFIC DISCHARGERS THROUGH THE ISSUANCE OF
NPDES PERMITS REQUIRING DISCHARGERS TO CONTROL TOXIC POLLUTANTS IN
ACCORDANCE WITH LIMITS REFLECTING THE BEST AVAILABLE TECHNOLOGY
ECONOMICALLY ACHIEVABLE (BAT), AS SOON AS POSSIBLE BUT NO LATER THAN THE
STATUTORY DEADLINE OF JULY 1, 1984.
THE NEW PERMIT WRITING STRATEGY WILL BE AN EXTENSION OF THAT USED IN
ISSUING FIRST-ROUND NPDES PERMITS. AS BEFORE, PERMITS MUST CONTAIN
LIMITATIONS REFLECTING THE MOST STRINGENT OF TECHNOLOGY-BASED, WATER
QUALITY-BASED, OR OTHER STANDARDS REQUIRED BY CWA (SUCH AS CRITERIA FOR
OCEAN DISCHARGES UNDER SECTION 403 AND TOXIC STANDARDS OR PROHIBITIONS
UNDER SECTION 307(A)). FOR MOST ORGANIC TOXIC POLLUTANTS, HOWEVER,
NUMERICAL STATE WATER QUALITY STANDARDS GENERALLY WILL NOT HAVE BEEN SET
BY THE TIME THAT THE NEXT ROUND OF PERMITS ARE REISSUED. (PERMITS ARE
ISSUED FOR MAXIMUM TERMS OF FIVE YEARS AS REQUIRED BY CWA, AND PERMITS
MAY NOT BE REOPENED SOLELY TO INCORPORATE NEW STATE WATER QUALITY
STANDARDS UNLESS REQUESTED BY THE PERMITTEE.) THUS TECHNOLOGY-BASED
LIMITATIONS WILL GENERALLY BE THE CHIEF STANDARD FOR SETTING PERMIT
LIMITS ON MOST TOXIC POLLUTANTS DURING THE NEXT ROUND OF PERMIT
REISSUANCE.
THE RULES FOR SETTING TECHNOLOGY-BASED LIMITATIONS ARE SET FORTH IN
40 CFR 125.3 TECHNOLOGY-BASED LIMITATIONS ARE GENERALLY ESTABLISHED ON
THE BASIS OF EFFLUENT LIMITATIONS GUIDELINES PROMULGATED UNDER SECTION
304 OF CWA. AS IN THE PAST, PERMIT WRITERS MUST SET LIMITS ON A
CASE-BY-CASE BASIS UNDER SECTION 402 (A)(1) OF CWA TO CONTROL DISCAHRGES
WHICH ARE NOT COVERED BY EFFLUENT GUIDELINES. THIS WILL OCCUR IN TWO
TYPES OF SITUATIONS: (1) WHEN NEW BAT EFFLUENT GUIDELINES ADDRESSING
TOXIC POLLUTANTS IN THE APPLICANT'S INDUSTRIAL CATEGORY HAVE NOT BEEN
PROMULGATED OR HAVE BEEN WITHDRAWN OR REMANDED; OR (2) WHEN THE
APPLICANT HAS CERTAIN DISCHARGES WHICH ARE NOT COVERED BY AN OTHERWISE
APPLICABLE GUIDELINE.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 007 OF 74
COSTLE D M ADMINISTRATOR
EPA
113731
REGULATION
THE AGENCY HAS BEEN DEVELOPING NEW EFFLUENT LIMITATIONS GUIDELINES
FOR TOXIC POLLUTANTS IN ACCORDANCE WITH THE NRDC SETTLEMENT AGGREMENT
(NATURAL RESOURCES DEFENSE COUNCIL, 8 E.R.C. 2120 (D.D.C. 1976),
MODIFIED 12 E.R.C. 1833 (D.D.C. 1979)) AND WITH THE 1977 AMENDMENTS TO
THE CLEAN WATER ACT. TO FOCUS EPA'S RESOURCES ON THE MORE WIDESPREAD
AND SIGNIFICANT TOXICS PROBLEMS, PARAGRAPH 8 OF THE NRDC SETTLEMENT
AGGRCEMENT ALLOWS THE AGENCY TO EXCLUDE CERTAIN CATEGORIES OF INDUSTRIES
AND CERTAIN TYPES OF POLLUTANTS FROM COVERAGE UNDER NATIONAL EFFLUENT
GUIDELINE REGULATIONS. FOR EXAMPLE, POLLUTANTS WHICH HAVE BEEN FOUND AT
ONLY ONE OR TWO PLANTS IN AN INDUSTRIAL CATEGORY NEED NOT BE INCLUDED IN
THE GUIDELINES FOR THAT CATEGORY, AND POLLUTANTS WHICH ARE IN GENERAL
(THOUGH NOT ALWAYS) ADEQUATELY CONTROLLED BY GUIDELINE LIMITATIONS ON
OTHER POLLUTANTS NEED NOT BE EXPLICITLY LIMITED IN GUIDELINES.
AS RECOGNIZED IN PARAGRAPH 8 OF THE NRDC SETTLEMENT AGREEMENT AND
DEMONSTRATED IN EPA AND STATE EXPERIENCE IN ISSUING NPDES PERMITS, EVEN
IF A DISCHARGER'S CATEGORY IS COVERED BY PROMULGATED EFFLUENT
LIMITATIONS GUIDELINES, THE DISCHARGER MAY BE DISCHARGING POLLUTANTS NOT
ADEQUATELY COVERED BY THOSE GUIDELINES. A MAJOR FEATURE OF THE AGENCY'S
NPDES PERMITTING STRATEGY IS THE DEVELOPMENT OF WAYS TO IDENTIFY AND
ADDRESS SITUATIONS IN WHICH SIGNIFICANT DISCHARGES OF TOXICS ARE NOT
COVERED BY GUIDELINES AND THUS MUST BE CONTROLLED ON A CASE-BY-CASE
BASIS.
PERMIT WRITERS WILL USE SEVERAL SOURCES OF INFORMATION TO DETERMINE
APPROPRIATE BAT LIMITS IN THE ABSENCE OF GUIDELINES. THESE SOURCES
INCLUDE DEVELOPMENT DOCUMENTS FOR EFFLUENT GUIDELINES IN DRAFT OR FINAL
VERSIONS, A TREATABILITY MANUAL PREPARED BY EPA, AND ANY OTHER
INFORMATION AVAILABLE TO THE PERMIT WRITER (INCLUDING INFORMATION
PROVIDED BY THE PERMIT APPLICANT). THE TREATABILITY MANUAL IS A
FIVE-VOLUME COMPILATION OF HISTORICAL DATA ON THE LEVELS OF REDUCTIONS
OF TOXIC POLLUTANTS ACHIEVABLE BY VARIOUS TYPES OF TREATMENT EQUIPMENT
OR METHODS, TOGETHER WITH ASSOCIATED COSTS. THE MANUAL IS BEING
DEVELOPED WITH THE PARTICIPATION OF SEVERAL EPA OFFICES, INCLUDING THE
EFFLUENT GUIDELINES DIVISION. THUS, THE INFORMATION IT CONTAINS SHOULD
BE CONSISTENT WITH THAT USED TO DEVELOP PROPOSED EFFLUENT LIMITATIONS
GUIDELINES. THE MANUAL WILL BE CONTINUALLY UPDATED TO REFLECT ANY NEW
OR NEWLY DISCOVERED DATA ON TECHNOLOGIES AND ASSOCIATED COSTS.
IT WOULD BE INAPPROPRIATE TO PROMULGATE THE TREATABILITY MANUAL AS A
REGULATION, AS REQUESTED BY SEVERAL COMMENTERS, BECAUSE THE MANUAL
CONTAINS NO REQUIREMENTS. RATHER, IT COMPILES AND SUMMARIZES HISTORICAL
DATA; IT DOES NOT STATE CONCLUSIONS BASED ON THE DATA. FURTHERMORE,
EPA EXPECTS TO CONTINUALLY UPDATE THE MANUAL TO INCORPORATE NEW OR
NEWLY-DISCOVERED DATA. ANY RULEMAKING PROCEEDING WOULD THUS BE ENDLESS.
EPA PLANS TO PUBLISH A FEDERAL REGISTER NOTICE ANNOUNCING
AVAILABILITH OF THE TREATABILITY MANUAL IN JUNE 1980. COMMENTS ARE
WELCOME AND WILL, WHERE APPROPRIATE, BE INCORPORATED INTO FUTURE
EDITIONS OF THE MANUAL. MORE IMPORTANT, EPA EMPHASIZES THAT THE MANUAL
IS NOT A BINDING DOCUMENT (UNLIKE, FOR EXAMPLE, A PROMULGATED EFFLUENT
LIMITATIONS GUIDELINE) BUT IS MERELY ONE SOURCE OF RELEVANT INFORMATION.
THE PERMIT WRITER'S CASE-BY-CASE DEVELOPMENT OF PERMIT LIMITS, BASED ON
INFORMATION CONTAINED IN THE MANUAL OR ELSEWHERE, REMAINS SUBJECT TO
CHALLENGE UNDER THE APPROPRIATE PROCEDURES OF 40 CFR PART 124.
EPA AGREES WITH SEVERAL COMMENTERS WHO ADVOCATED NATIONAL UNIFORMITY
OF PERMIT LIMITATIONS FOR SIMILAR DISCHARGES. PROMULGATED EFFLUENT
GUIDELINES WILL GUARANTEE UNIFORMITY FOR COMMONLY-OCCURRING DISCHARGES.
EVEN WHEN PLANT-SPECIFIC DISCHARGES REQUIRE INDIVIDUALIZED PERMIT
LIMITS, THE MANUAL AND OTHER GUIDANCE DEVELOPED BY EPA SHOULD FURTHER
PROMOTE NATIONAL CONSISTENCY. OF COURSE, THE VERY EXISTENCE OF
PLANT-SPECIFIC DISCHARGES IMPLIES A NEED TO SET PERMIT LIMITS FOR SUCH
PLANTS WHICH DIFFER FROM THOSE SET FOR OTHER PLANTS WITHIN THE SAME
INDUSTRIAL CATEGORY.
CONTROL OF DISCHARGES OF TOXIC
POLLUTANTS
A. SUMMARY OF REQUIREMENTS. TODAY'S REGULATIONS PROVIDE THAT PERMIT
WRITERS MUST SET PERMIT LIMITS TO CONTROL ALL SIGNIFICANT DISCHARGES OF
TOXIC POLLUTANTS. SUCH A REQUIREMENT IS ALREADY IMPLICIT IN SECTION
301(B) OF THE CLEAN WATER ACT. HOWEVER, TODAY'S REGULATIONS SPECIFY
CERTAIN STEPS TO SEE THAT THIS IS DONE. THE APPROACH IS TWO-FOLD, AS
FOLLOWS:
(I) REQUIREMENT TO CONTROL ALL SIGNIFICANT DISCHARGES OF TOXIC
POLLUTANTS THROUGH PERMIT LIMITS: SECTION 122.62(E). SIGNIFICANT
DISCAHRGES OF TOXIC POLLUTANTS MUST BE LIMITED IN THE PERMIT EITHER
DIRECTLY OR THROUGH THE USE OF LIMITS ON OTHER PARAMETERS WHICH ASSURE
CONTROL OF THE TOXIC POLLUTANTS. "SIGNIFICANT" POLLUTANTS ARE DEFINED
TO INCLUDE:
POLLUTANTS REPORTED IN THE PERMIT APPLICATION AT LEVELS EXCEEDING THE
LEVEL WHICH THE PERMIT WRITER DETERMINES COULD BE ACHIEVED BY BAT; OR
POLLUTANTS USED OR MANUFACTURED OR EXPECTED TO BE USED OR
MANUFACTURED AS INTERMEDIATE OR FINAL PRODUCTS OR BYPRODUCTS.
THE FACT SHEET FOR EACH PERMIT (SEE 40 CFR 124.56) MUST EXPLAIN
HOW THE PERMIT LIMITS COMPLY WITH THIS REQUIREMENT.
(II) REGULATION OF TOXIC POLLUTANTS NOT LIMITED IN PERMITS. ALL
NON-"SIGNIFICANT" POLLUTANTS (I.E., THOSE CONSIDERED NOT LIKELY TO BE
DISCHARGED ABOVE BAT LEVELS BASED UPON THE LEVELS REPORTED IN THE
APPLICATION OR UPON EXPECTED USE OR MANUFACTURE AT THE FACILITY) NEED
NOT BE SPECIFICALLY CONTROLLED IN THE PERMIT (ALTHOUGH THE PERMIT WRITER
RETAINS AUTHORITY TO DO SO UNDER SECTION 125.3). THIS WILL ALLOW
PERMITTING AUTHORITIES TO FOCUS THEIR RESOURCES ON SIGNIFICANT
DISCHARGES OF TOXIC POLLUTANTS. TO PREVENT FUTURE SIGNIFICANT DISCHARGES
OF NON-LIMITED POLLUTANTS, TWO REGULATORY REQUIREMENTS HAVE BEEN
ESTABLISHED:
A PERMITTEE MUST NOTIFY THE PERMITTING AUTHORITY AS SOON AS IT
BECOMES AWARE THAT:
SOME ACTIVITY HAS OCCURRED OR WILL OCCUR TO CAUSE IT TO DISCHARGE A
TOXIC POLLUTANT AT MORE THAN THE GREATEST OF 100 SYMBOLS OMITTED/1 (OR
500 (SYMBOLS OMITTED)/1 FOR 2,4 DINITROPHENOL AND
2-METHYL-4,6-DINITROPHENOL, 200 (SYMBOLS OMITTED)/1 FOR ACROLEIN AND
ACRYLONITRILE, AND 1 MG/1 FOR ANTIMONY) OR 5 TIMES THE MAXIMUM
CONCENTRATION REPORTED FOR THAT POLLUTANT IN THE PERMIT LEVEL
ESTABLISHED BY THE DIRECTOR); OR
IT HAS BEEN BEGUN OR WILL BEGIN TO USE OR MANUFACTURE A TOXIC
POLLUTANT AS AN INTERMEDIATE OR FINAL PRODUCT OR BYPROTUCT.
THE PERMIT MAY BE MODIFIED TO CONTROL A TOXIC POLLUTANT WHEN:
THE PERMITTEE DISCHARGES OR EXPECTS TO DISCHARGE THE POLLUTANT OR TO
MANUFACTURE IT AS AN INTERMEDIATE OR FINAL PRODUCT OR BYPRODUCT.
IN DEVELOPING THE CONCEPT OF SIGNIFICANCE FOR DETERMINING WHEN PERMIT
LIMITS SHOULD BE SET FOR TOXIC POLLUTANTS, WHEN NOTIFICATION SHOULD BE
REQUIREED, AND WHEN PERMITS MAY BE MODIFIED, EPA CONSIDERED COMMENTERS'
SUGGESTION THAT TOXICITY BE USED AS A CRITERION.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 008 OF 74
COSTLE D M ADMINISTRATOR
EPA
113732
REGULATION
EPA HAS NOT ACCEPTED THE SUGGESTION; ALL POLLUTANTS LISTED AS TOXIC
UNDER SECTION 307(A) OF THE CLEAN WATER ACT MUST BE CONTROLLED BY BAT.
THE CONCEPT OF SIGNIFICANCE IS USED ONLY TO DETERMINE WHICH POLLUTANTS
ARE LIKELY TO BE DISCHARGED AT LEVELS GREATER THAN ACHIEVABLE BY BAT AND
THUS MUST BE LIMITED IN THE PERMIT. AN ASSESSMENT OF TOXICITY DOES NOT
PERTAIN TO THIS DETERMINATION.
B. DISCUSSION OF CHANGES FROMPROPOSED REQUIREMENTS. THIS SECTION
DISCUSSES THE PROPOSED "APPLICATION-BASED LIMITS" REGULATION (PROPOSED
SECTION 122.68(A)), ITS DELETION FROM THE FINAL REGULATION IN RESPONSE
TO COMMENTS, AND THE AGENCY'S RETHINKING WHICH LED TO THE REGULATIONS
DISCUSSED IN SECTION (A) ABOVE.
IN THE JUNE 14 PROPOSAL, EPA DID NOT PROVIDE GUIDANCE ON WHEN TOXIC
POLLUTANTS SHOULD BE LIMITED. WHILE THE PREAMBLE NOTED THAT
"SIGNIFICANT" TOXICS SHOULD BE LIMITED IN PERMITS, THE PROPOSED
REGULATIONS DID NOT CONTAIN THE SPECIFIC REQUIREMENTS PROMULGATED TODAY
IN SECTION 122.62(E). ON THE OTHER HAND, THE REGULATIONS AND PREAMBLE
FOCUSED UPON THE CONTROL OF ALL PRESENT AND FUTURE DISCHARGES NOT
SPECIFICALLY LIMITED THROUGH EFFLUENT GUIDELINES OR BY SETTING
CASE-BY-CASE LIMITS. THE AGENCY PROPOSED IN SECTION 122.68(A) A
STRINGENT APPROACH OF APPLICATION-BASED LIMITS: THE DISCHARGE OF ANY
POLLUTANT WOULD HAVE BEEN LIMITED TO 5 TIMES (OR A HIGHER MULTIPLIER IF
A CERTAIN SHOWING COULD BE MADE BY A PERMIT APPLICANT) THE LEVEL
REPORTED IN THE APPLICATION (OR TO 5 TIMES THE POLLUTANT'S DETECTION
LIMIT, IF A ZERO DISCHARGE WAS REPORTED), UNLESS THE POLLUTANT WAS
LIMITED DIRECTLY.
THE PROPOSED APPLICATION-BASED LIMIT WAS INTENDED TO SERVE TWO
PURPOSES. FIRST, IT OWULD HAVE ASSURED SOME CONTROL OVER SIGNIFICANT
DISCHARGES IDENTIFIED IN THE PERMIT APPLICATION WHICH WERE FOR ANY
REASON NOT OTHERWISE CONTROLLED IN THE PERMIT. SECOND, IT WOULD HAVE
ASSURED CONTROL OF FUTURE SIGNIFICANT DISCHARGES OF POLLUTANTS WHICH
WERE DISCHARGED AT INSIGNIFICANT LEVELS AT THE TIME OF THE PERMIT
APPLICATION AND THUS WERE NOT SPECIFICALLY LIMITED IN THE PERMIT.
COMMENTERS ALMOST UNANIMOUSLY CRITICIZED PROPOSED SECTION 122.68 (A),
ALTHOUGH A FEW INDUSTRIAL COMMENTERS STATED THAT THE PROPOSED APPROACH
WAS REASONABLE AND SEVERAL ENVIRONMENTAL GROUPS SUPPORTED IT WITH
RESERVATIONS. MOST COMMENTERS ARGUED THAT THE PROPOSED REGULATION WOULD
NOT CONTRIBUTE ANY SUBSTANTIAL ENVIRONMENTAL BENEFITS JUSTIFYING THE
SIGNIFICANT BURDEN ON ALL PERMITTEES AND THAT IT WAS INSUPPORTABLE
LEGALLY AND TECHNICALLY. SOME COMMENTERS SUGGESTED THAT EPA COULD
BETTER ACHIEVE ITS STATED GOALS BY FOCUSING MORE CLOSELY AT THE
PERMIT-WRITING STAGE ON THOSE POLLUTANTS WHICH ARE LIKELY TO BE
DISCHARGED AT SIGNIFICANT LEVELS AND BY USING NOTIFICATION REQUIREMENTS
FOR OTHER POLLUTANTS WHICH FIRST BECOME SIGNIFICANT AFTER THE PERMIT IS
ISSUED.
THESE COMMENTS, SOME OF WHICH WERE QUITE DETAILED AND LENGTHY,
CONVINCED EPA THAT THE IMPOSITION OF APPLICATION-BASED LIMITS COULD NOT
BE SUPPORTED AT PRESENT AND ASSISTED THE AGENCY IN RETHINKING ITS
APPROACH TO THE PROBLEM OF CONTROLLING DISCHARGES WHICH ARE NOT COVERED
SUFFICIENTLY BY EFFLUENT GUIDELINES. THE MAJOR COMMENTS ARE SUMMARIZED
BELOW:
(1) THE VALUES REPORTED IN THE PERMIT APPLICATION MAY NOT BE
REPRESENTATIVE OF EXISTING OR FUTURE DISCHARGES OF POLLUTANTS, BOTH
BECAUSE OF NORMAL RANDOM FLUCTUATIONS IN CONCENTRATION AND BECAUSE OF
FUTURE CHANGES IN PROCESSES OR OPERATIONS WHICH WERE NOT ANTICIPATED IN
THE PERMIT APPLICATION OF WHICH RESULT IN DISCHARGES NOT EASILY
PREDICTED. INSUFFICIENT DATA EXIST TO SELECT A MULTIPLIER WHICH IS
ADEQUATE TO RELATE THE RESULTS OF ONE SAMPLE TO FUTURE DISCHARGES. IF
SUCH DATA DID EXIST, IT WOULD SHOW THAT AN APPROPRIATE MULTIPLIER WOULD
BE MUCH HIGHER THAN FIVE. FURTHER VARIABILITY IS INTRODUCED BY ERRORS
IN SAMPLING AND ANALYSIS, VARIATIONS OF POLLUTANT LEVELS IN INTAKE
WATER, AND THE USE OF BATCH PROCESSES WHICH RESULT IN CONTINUALLY
CHANGING LEVELS OF POLLUTANTS. TO AVOID LIABILITY BASED UPON AN UNDULY
LOW MULTIPLIER, APPLICANTS WOULD HAVE TO SPEND A GREAT DEAL OF MONEY FOR
ALTERNATE TESTING TO BE ELIGIBLE FOR A HIGHER MULTIPLIER UNDER PROPOSED
SECTION 122.68(A)(3), AND EVEN THEN THEY COULD NOT BE COMPLETELY ASSURED
OF COMPLIANCE WITH THAT MULTIPLIER.
(2) SETTING PERMIT LIMITS ON ALL REPORTABLE POLLUTANTS IS AN
INAPPROPRIATE AND UNDULY COSTLY WAY TO REGULATE PERMITTEES' DISCHARGES.
PERMITTEES COULD OFTEN BE SUBJECTED TO LIABILITY FOR MINOR VIOLATIONS
(E.G., DISCHARGES AT 50 (SYMBOLS OMITTED)/1). AS A RESULT, PERMITTEES
WOULD EITHER HAVE TO SPEND A GREAT DEAL OF MONEY ON COMPLIANCE
MONITORING TO ASSURE THAT THEY WERE COMPLYING WITH ALL APPLICATION-BASED
LIMITS, OR THEY WOULD HAVE TO RELY ON ASSURANCES THAT, UNDER EPA'S
ENFORCEMENT DISCRETION, ONLY LARGE VIOLATIONS WOULD BE PROSECUTED. IT
WOULD BE UNFAIR TO IMPOSE NEAR-CERTAIN LIABILITY ON DISCHARGERS ON THE
ASSURANCE THAT THEY WILL NOT BE ENFORCED AGAINST EXCEPT FOR SIGNIFICANT
VIOLATIONS. IT WOULD BE PARTICULARLY UNFAIR WHEN ANALYSIS OF A
POLLUTANT HAD NOT BEEN REQUIRED OR WHEN THE POLLUTANT HAD NOT BEEN
DETECTED IN THE SAMPLE(S) ANALYZED AND THUS HAD BEEN REPORTED AS ABSENT
IN THE APPLICATION.
(3) APPLICATION-BASED LIMITS ARE ILLEGAL. THE CLEAN WATER ACT
REQUIRES PERMIT LIMITS TO BE BASED ON TECHNOLOGY-BASED, WATER
QUALITY-BASED, OR CERTAIN OTHER STANDARDS; APPLICATION-BASED LIMITS ARE
NOT AUTHORIZED BY ANY OF THESE STANDARDS. IN PARTICULAR,
APPLICATION-BASED LIMITS WHICH ARE LOWER THAN THE LEVELS ACHIEVABLE BY
BAT (WHICH WOULD OFTEN OCCUR WHERE A POLLUTANT WAS REPORTED AS ZERO IN
THE APPLICATION) ARE IMPROPER.
(4) POLLUTANTS OF CONCERN SHOULD BE LIMITED DIRECTLY USING
TECHNOLOGY-BASED LIMITS, RATHER THAN INDIRECTLY USING APPLICATION-BASED
LIMITS. EPA SHOULD FOCUS ON LIMITING SIGNIFICANT DISCHARGES.
MONITORING AND REPORTING REQUIREMENTS SHOULD BE RELIED UPON TO ASSURE
THE DISCOVERY AND SUBSEQUENT CONTROL OF NEW SIGNIFICANT DISCHARGES
OCCURRING AFTER THE PERMIT IS ISSUED.
(5) EXISTING NPDES REGULATIONS ALREADY PROVIDED SUFFICIENT CONTROLS
OVER LARGE POTENTIAL DISCHARGES OF POLLUTANTS NOT LIMITED IN THE PERMIT,
BECAUSE (A) SUBSTANTIAL CHANGES IN PRODUCTION WERE REQUIRED TO BE
REPORTED AND WERE GROUNDS FOR PERMIT MODIFICATION, AND (B) LARGE
DISCHARGES OF POLLUTANTS NOT LIMITED IN THE PERMIT WOULD HAVE OCCURRED
ONLY WHEN PERMIT LIMITS ON OTHER POLLUTANTS WOULD HAVE BEEN VIOLATED.
(6) APPLICATION-BASED LIMITS, IF USED AT ALL IN THE FINAL
REGULATIONS, SHOULD BE BASED ON A MULTIPLE OF THE AMOUNT OF DISCHARGED
POLLUTANTS RATHER THAN ON CONCENTRATIONS OF THE POLLUTANTS. OTHERWISE,
EPA WOULD DISCOURAGE DESIRABLE FLOW REDUCTION PRACTICES.
(7) APPLICATION-BASED LIMITS COULD RESULT IN DIFFERING LIMITS FOR
DISCHARGERS IN THE SAME INDUSTRIAL SUBCATEGORY.
EPA DOES NOT AGREE WITH ALL OF THE ABOVE COMMENTS. IN PARTICULAR,
EPA CONTINUES TO BELIEVE THAT AN APPLICATION-BASED LIMIT IS LEGAL IF THE
MULTIPLIER ACCURATELY REFLECTS WASTE STREAM VARIABILITY. ANY LIMIT
CURRENTLY BEING ACHIEVED BY A DISCHARGER IS OBVIOUSLY NO MORE STRINGENT
THAN THE BEST AVAILABLE TECHNOLOGY ECONOMICALLY ACHIEVABLE. THUS IF A
VARIABILITY-BASED MULTIPLIER TIMES A REPORTED VALUE IS THE MAXIMUM LEVEL
CURRENTLY BEING DISCHARGED, IT CLEARLY MAY BE ADOPTED AS BAT.
HOWEVER, EPA IS PERSUADED BY THE COMMENTS, CONSIDERED COLLECTIVELY,
THAT ITS PROPOSED APPROACH MUST BE REVISED. IN PARTICULAR, EPA AGREES
WITH THE COMMENTERS THAT THE INSUFFICIENCY OF DATA ON WASTE STREAM
VARIABILITY AND THE PROBLEM OF CONTINUALLY CHANGING FEEDSTOCKS AND BATCH
PROCESSES BOTH PRESENT SEVERE TECHNICAL DIFFICULTIES FOR THE CONCEPT OF
ACROSS-THE-BOARD APPLICATION-BASED LIMITS. SIMILARLY, EPA ACKNOWLEDGES
THAT THE PROPOSED APPROACH HAD THE POTENTIAL FOR IMPOSING UNDULY SEVERE
MONITORING COSTS UPON APPLICANTS WISHING TO DEMONSTRATE THAT A
MULTIPLIER HIGHER THAN 5 SHOULD BE USED AND UPON PERMITTEES WICHING TO
ASSURE THAT THEY ARE COMPLYING WITH APPLICATION-BASED LIMITS. FINALLY,
EPA AGREES THAT A BETTER-FOCUSED ALTERNATIVE EXISTS TO ADDRESS MOST OF
EPA'S CONCERNS.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 009 OF 74
COSTLE D M ADMINISTRATOR
EPA
113733
REGULATION
THE REVISED APPROACH, AS OUTLINED ABOVE, FOCUSES THE PERMIT WRITER'S
ATTENTION (IN SECTION 122.62(3)) MORE CLEARLY THAN BEFORE ON THE
SPECIFIC CONTROL OF ALL SIGNIFICANT DISCHARGES OF TOXIC POLLUTANTS BY
SPECIFYING VARIOUS FACTORS (REPORTED DISCHARGE LEVELS AND THE USE OR
MANUFACTURE OF TOXIC POLLUTANTS) INDICATING SIGNIFICANCE. THE
POSSIBILITY THAT CURRENTLY INSIGNIFICANT DISCHARGES OF CERTAIN
POLLUTANTS MAY BE TRANSFORMED LATER INTO SIGNIFICANT DISCHARGES IS
ADDRESSED THROUGH NOTIFICATION REQUIREMENTS (SECTION 122.61(A)) AND
THROUGH AN AUTHORIZATION TO MODIFY PERMITS TO ADDRESS SUCH PROBLEMS
(SECTION 122.15(A)(5)(VIII)-(X)).
THE MULTIPLIER USED IN SECTION 122.61(A) AS ONE MEANS TO TRIGGER THE
NOTIFICATION REQUIREMENT IS STILL SET AT FIVE, DESPITE THE COMMENTS
CRITICIZING IT. THE AGENCY BELIEVES THAT THE AVAILABLE DATA SUPPORTS A
VALUE OF FIVE TO DISTINGUISH BETWEEN RANDOM FLUCTUATIONS AND SIGNIFICANT
INCREASES, AT LEAST FOR THE PURPOSES OF A NOTIFICATION REQUIREMENT. IF
THE DIRECTOR BECOMESAWARE OF SAMPLING OR ANALYSIS ERRORS, OR
FLUCTUATIONS IN POLLUTANTS IN THE INTAKE WATER, THE DIRECTOR AMY MODIFY
THE PERMIT TO ESTABLISH A HIGHER NOTIFICATION LEVEL TO ACCOUNT FOR THESE
FLUCTUATIONS, AS PROVIDED IN SECTION 122.62(F). INCREASES FROM OTHER
CAUSES ARE EXACTLY WHAT THIS REQUIREMENT WAS DESIGNED TO REGULATE.
TWO CHANGES HAVE BEEN MADE, HOWEVER, IN THE WAY THE MULTIPLIER OF
FIVE WILL OPERATE IN THE NOTIFICATION REQUIREMENT.
FIRST, THE LOWER THRESHOLD FOR NOTIFICATION HAS BEEN RAISED TO 100
(SYMBOL OMITTED)G/1 (AND HIGHER FOR SEVERAL POLLUTANTS WHICH HAVE HIGH
DETECTION LIMITS). MULTIPLES OF DETECTION LIMITS ARE NOT USED AS A
BASIS FOR APPLICATION-BASED NOTIFICATION.
SECOND, THE MULTIPLIER APPLIES TO THE MAXIMUM, RATHER THAN THE
AVERAGE VALUE REPORTED IN THE APPLICATION, OF EITHER THE TESTED OR THE
PREDICTED VALUE. THIS APPROACH WAS SUGGESTED BY SOME COMMENTERS. OF
COURSE, WHEN ONLY ONE SAMPLE IS TESTED FOR TOXIC POLLUTANTS (WHICH IS
ALL THAT IS REQUIRED), MAXIMUM AND AVERAGE VALUES ARE IDENTICAL.
HOWEVER, THE MAXIMUM VALUE HAS BEEN DEFINED TO INCLUDE VALUES PREDICTED
BY THE APPLICANT UNDER SECTION 122.53(D)(10) AND ITEM VI OF FORM 2C
(DISCUSSED BELOW IN SECTION III.D.3.E.II). THIS CHANGE RESPONDS TO
SEVERAL COMMENTS NOTING THE DIFFICULTIES IN APPLYING THE PROPOSED
REGULATION TO BATCH DISCHARGES AND OTHER NONRANDOM CHANGES. APPLICANTS
ARE DISCOURAGED FROM REPORTING UNREALISTICALLY HIGH VALUES IN ITEM VI BY
SECTION 122.62(E), WHICH REQUIRES THAT THEIR PERMITS CONTAIN LIMITS TO
CONTROL TOXIC POLLUTANTS REPORTED AT LEVELS GREATER THAN BAT UNDER
SECTION 122.53(D)(10) AND ITEM VI. ANY VARIATION IN LEVELS OF
POLLUTANTS WHICH CANNOT BE PREDICTED AT THE TIME OF THE APPLICATION WILL
BE SUBJECT TO THE NOTIFICATION REQUIREMENTS IN SECTION 122.61(A).
THE REQUIREMENT TO SUBMIT 10 SAMPLES TO GET A HIGHER MULTIPLIER HAS
BEEN DELETED. THE DIRECTOR MAY SET A HIGHER NOTIFICATION LEVEL BASED ON
A HIGHER MAXIMUM VALUE, NOT A HIGHER MULTIPLIER. THUS SEVERAL COMMENTS
RECEIVED ON THE ALTERNATE MULTIPLIER PROVISION (PROPOSED SECTION
122.68(A)(3)) NO LONGER APPLY.
EPA RECOGNIZES THAT THE REVISED APPROACH FALLS SHORT OF THE PROPOSAL
IN SOME RESPECTS. THERE IS STILL SOME POSSIBILITY THOUGH LESS LIKELY AS
THE RESULT OF SECTION 122.62(E)) THAT A PERMITTEE MAY DISCHARGE A LARGE
AMOUNT OF A POLLUTANT NOT LIMITED IN ITS PERMIT, AND EPA WILL NOT BE
ABLE TO TAKE ENFORCEMENT ACTION AGAINST THE PERMITTEE AS LONG AS THE
PERMITTEE COMPLIES WITH THE NOTIFICATION REQUIREMENTS OF SECTION
122.61(A). ALTHOUGH EPA WILL NOW HAVE AUTHORITY UNDER SECTION
122.15(A)(5)(VIII)-(X) TO MODIFY (OR REVOKE AND REISSUE) THE PERMIT TO
REQUIRE CONTROL OF THE POLLUTANT, PERMID MODIFICATION CAN BE A LENGTHY
PROCESS.
EPA WILL CONTINUE TO EXAMINE THE PROBLEM OF POLLUTANTS WHICH ARE NOT
LIMITED IN PERMITS AND TO SEEK SOLUTIONS TO WHAT IT STILL CONSIDERS TO
BE A REGULATORY GAP, ALTHOUGH THE GAP IS MADE SMALLER BY THE REGULATIONS
PUBLISHED TODAY. EPA WELCOMES SUGGESTIONS ON HOW BEST TO DEVELOP A
TECHNICALLY AND LEGALLY SUPPORTABLE APPROACH. IN ADDITION, THE FINAL
REGULATIONS CONTROL DISCHARGES ONLY OF THE POLLUTANTS LISTED IN THE
PERMIT APPLICATION, WHICH CONSIST PRIMARILY OF THE LISTED TOXIC
POLLUTANTS AND DESIGNATED HAZARDOUS SUBSTANCES. (PROPOSED SECTION
122.68(A) ALSO WAS LIMITED TO THE POLLUTANTS LISTED IN THE APPLICATION
FORM.) THIS LIST IS BY NO MEANS EXHAUSTIVE OF ALL CHEMICALS WHICH MAY BE
DISCHARGED.
EPA INTENDS TO CONTINUE TO STUDY OTHER POLLUTANTS, TO MAKE
APPROPRIATE ADDITIONS TO THE TOXIC POLLUTANT AND HAZARDOUS SUBSTNACE
LISTS AND TO CONSIDER APPROPRIATE TECHNOLOGICAL CONTROLS IN THE
DEVELOPMENT OF FUTURE EFFLUENT GUIDELINES. SOME OF THIS WORK HAS
ALREADY BEGUN. HOWEVER, SOME WILL NOT BEGIN UNTIL CURRENTLY LISTED
TOXICS AND HAZARDOUS POLLUTANTS ARE FULLY ADDRESSED.
EVEN AT PRESENT, HOWEVER, PERMIT WRITERS MAY SET LIMITS ON ANY
POLLUTANT BELIEVED TO BE OF CONCERN. IN CERTAIN CASES, BIOASSAYS AND
FURTHER TOXICITY TESTING MAY RESULT IN THE IDENTIFICATION AND CONTROL OF
ADDITIONAL HARMFUL POLLUTANTS (SEE SECTIONS III.D.2.D AND E.2 OF THIS
PREAMBLE).
THE NEW AUTHORITIES PROVIDED TO EPA UNDER THE TOXIC SUBSTANCES
CONTROL ACT (TSCA) MAY HELP FURTHER TO REDUCE THREATS OF TOXIC
DISCHARGES. UNDER TSCA, EPA MAY REGULATE THE MANUFACTURE, USE AND
DISPOSAL OF TOXIC SUBSTANCES. REGULATION UNDER TSCA MAY INDIRECTLY (OR,
IN CERTAIN INSTANCES, DIRECTLY) RESULT IN THE REDUCTION OR ELIMINATION
OF PARTICULAR POLLUTANTS FROM DISCHARGES.
SECTION 125.3(C)(4) PROVIDES THAT PERMIT LIMITS MAY BE EXPRESSED IN
TERMS OF EFFLUENT TOXICITY IF THEY REFLECT THE APPROPRIATE REQUIREMENTS
OF THE CLEAN WATER ACT, SUCH AS TECHNOLOGY-BASED OR WATER QUALITY-BASED
STANDARDS. THIS ASPECT OF THE REGULATIONS IS ESSENTIALLY UNCHANGED FROM
THE PROPOSAL.
SEVERAL MINOR EDITORIAL CHANGES HAVE BEEN MADE, INCLUDING THE
ELIMINATION OF THE REFERENCE TO SUBPARAGRAPH (C)(2), WHICH IMPLIED THAT
TOXICITY-BASED LIMITS MAY BE USED ONLY ON A CASE-BY-CASE BASIS. THE
REGULATION NOW PROVIDES THAT TOXICITY-BASED LIMITS MAY ALSO BE APPLIED
IN EFFLUENT GUIDELINES, PROVIDED THE REQUIREMENTS OF SUBPARAGRAPH (C)(4)
ARE OTHERWISE MET. AT THIS TIME, HOWEVER, EPA DOES NOT CONTEMPLATE
INCLUDING TOXICITY-BASED LIMITATIONS IN FORTHCOMING EFFLUENT GUIDELINES.
MANY COMMENTS WERE RECEIVED CONCERNING THE ISSUE OF ESTABLISHING
TOXICITY-BASED PERMIT LIMITS. MANY COMMENTERS EXPRESSED UNQUALIFIED
SUPPORT FOR BIOMONITORING AND TOXICITY-BASED PERMIT LIMITS, ARGUING THAT
CHEMICAL LIMITS ALONE ARE INSUFFICIENT TO CONTROL THE MANY UNKNOWN TOXIC
CHEMICALS AND THE RESULTS OF THEIR INTERACTIONS. INDEED, THIS ISSUE WAS
OF GREAT INTEREST TO MANY PRIVATE CITIZENS. SEVERAL OTHER COMMENTERS
AGREED THAT TOXICITY-BASED LIMITS ARE APPROPRIATE IN CERTAIN SITUATIONS
BUT, BECAUSE OF THE EXPENSE AND DELAY INVOLVED IN DETERMINING AND
ENFORCING SUCH LIMITS, ARGUED THAT THEY SHOULD BE USED ONLY FOR
DEMONSTRATED TOXIC DISCHARGES WHEN OTHER LIMITS ARE INADEQUATE OR
UNAVAILABLE. EPA AGREES AND IS RECOMMENDING THAT TOXICITY LIMITS BE
USED WHEN (1) IT IS SUSPECTED THAT THE DISCHARGE IS TOXIC BASED ON
ONGOING OR PREVIOUS TOXICITY TESTING OR A HISTORY OF FISH KILLS OR
RELATED TOXICITY PROBLEMS, AND (2) EFFLUENT GUIDELINES ARE EITHER
ABSENT, OR IT IS BELIEVED THAT SIGNIFICANT TOXICITY WILL REMAIN IN AN
EFFLUENT AFTER THE APPROPRIATE GUIDELINES CONTROL TECHNOLOGY IS
INSTALLED. THUS, TOXICITY-BASED LIMITS SHOULD BE USED WHEN THE CHEMICAL
LIMITS APPROACH IS INADEQUATE. EXAMPLES OF SUCH SITUATIONS INCLUDE
PRIMARY INDUSTRY DISCHARGES WHEN THE LISTED TOXIC POLLUTANTS ARE NOT
FOUND BUT SERIOUS TOXICITY PROBLEMS EXIST, AND SECONDARY INDUSTRY
DISCHARGES WHEN CHEMICAL ANALYSES ARE NOT REQUIRED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 010 OF 74
COSTLE D M ADMINISTRATOR
EPA
113734
REGULATION
SEVERAL COMMENTERS EXPRESSED CONCERN OVER THE DETERMINATION OF
TOXICITY LIMITS BY PERMIT WRITERS. THEY ARGUED THAT TOXICITY-BASED
LIMITS SHOULD REFLECT BAT AS DEFINED IN THE CLEAN WATER ACT. OTHER
COMMENTERS OPPOSED RIGID PROTOCOLS, ADVOCATING INSTEAD THAT THE MOST
APPROPRIATE TYPE OF TOXICITY-BASED LIMITS SHOULD BE WORKED OUT BETWEEN
THE PERMITTEE AND PERMIT WRITER TO CORRESPOND TO THE PARTICULAR
SITUATION. EPA AGREES THAT TOXICITY-BASED LIMITS MUST REFLECT BAT OR
OTHER REQUIREMENTS OF THE CLEAN WATER ACT. EPA ALSO AGREES THAT
CONSIDERABLE FLECIBILITY SHOULD BE ALLOWED THE PERMIT WRITER TO
DETERMINE THE PERMIT LIMITS MOST APPROPRIATE FOR A PARTICULAR SITUATION.
THERE ARE TWO APPROACHES FOR DETERMINING TOXICITY-BASED PERMIT
LIMITS. THE FIRST APPROACH IS BASED ON STATE WATER QUALITY STANDARDS.
ALL STATE STANDARDS INCLUDE A STATEMENT TO THE EFFECT THAT NO TOXIC
SUBSTANCES MAY BE DISCHARGED IN TOXIC AMOUNTS. ADDITIONALLY, MANY
STATES SUCH AS CALIFORNIA AND ARIZONA SPECIFY ACUTE OR CHRONIC LEVELS
WHICH ARE NOT TO BE EXCEEDED AND DEFINE METHODS OF MEASUREMENT AND
REPORTING. THE SECOND APPROACH IS TECHNOLOGY-BASED; THE PERMIT WRITER
MAKES A CASE-BY-CASE DETERMINATION OF BAT OR OTHER APPROPRIATE
TECHNOLOGICAL STANDARD, USING HIS OR HER BEST PROFESSIONAL JUDGMENT.
SUCH DETERMINATIONS MUST BE BASED ON AN EVALUATION OF THE AVAILABLE
TECHNOLOGY TO ACHIEVE A PARTICULAR TOXICITY REDUCTION. FOR EXAMPLE,
WHEN INFORMATION ON TREATABILITY IS LACKING, STUDIES CAN BE CONDUCTED TO
ASSESS THE REDUCTION IN TOXICITY RESULTING FROM VARIOUS TREATMENT
SYSTEMS OR PROCESS ALTERNATIVES. TECHNOLOGY-BASED LIMITS USING TOXICITY
UNITS MAY THEN BE SET BASED ON THIS DATA. EPA RECOGNIZES THE
SIGNIFICANT COST OF THIS PROCEDURE AND RECOMMENDS THAT IT BE USED ONLY
WHEN IT IS NOT POSSIBLE TO ADEQUATELY CONTROL TOXIC CHEMICALS USING
APPROPRIATE CHEMICAL LIMITS.
SEVERAL COMMENTERS ARGUED THAT BECAUSE TOO MUCH DISCRETION WAS BEING
ALLOWED PERMIT WRITERS IN SETTING TOXICITY LIMITS, NON-UNIFORMITY WOULD
RESULT. EPA RECOGNIZES THAT SOME NON-UNIFORMITY IS INHERENT IN A
CASE-BY-CASE APPROACH, WHETHER THAT APPROACH USES CHEMICALLY-BASED OR
TOXICITY-BASED PERMIT LIMITS. AS DISCUSSED IN SECTION III.B.1 OF THIS
PREAMBLE, CASE-BY-CASE LIMITS ARE A NECESSARY APPROACH WHEN APPLICABLE
GUIDELINES ARE NOT AVAILABLE OR DO NOT RESULT IN THE INSTALLATION OF BAT
FOR ALL POLLUTANTS. TO ASSIST THE PERMITTING AUTHORITIES AND TO PROMOTE
UNIFORMITY, EPA HAS DISTRIBUTED THE MAY 1, 1978, DRAFT BIOMONITORING
PROTOCOL GUIDANCE FOR THE NPDES PERMITS PROGRAM, WHICH DISCUSSES THE USE
OF TOXICITY-BASED PERMIT LIMITS. IN ADDITION, A GUIDANCE DOCUMENT
ENTITLED USE OF BIOLOGICAL TOXICITY TESTING IN THE SECOND ROUND OF NPDES
PERMIT ISSUANCE IS BEING DEVELOPED AND WILL BE AVAILABLE IN MID-1980.
EPA IS CONTINUING AT PRESENT TO RELY PRIMARILY ON CHEMICAL LIMITS TO
CONTROL TOXICITY; THEREFORE, TOXICITY-BASED LIMITS WILL BE EMPLOYED
ONLY WHEN THESE CHEMICAL LIMITS ARE INADEQUATE. THE AGENCY BELIEVES,
HOWEVER, THAT TOXICITY TESTING AND TOXICITY-BASED PERMIT LIMITS MUST
PLAN AN EVER-INCREASING ROLE IN ORDER TO ADDRESS THE PROBLEMS OF TOXIC
POLLUTANT CONTROL.
POLLUTANTS AND HAZARDOUS SUBSTANCES
SECTION 125.3(G). PROPOSED SECTION 125.3(G), WHICH ESTABLISHED
CERTAIN CRITERIA FOR THE USE OF LIMITS ON INDICATOR PARAMETERS TO
CONTROL TOXIC POLLUTANTS, HAS BEEN RETAINED IN THE FINAL REGULATIONS.
HOWEVER, A PROVISION HAS BEEN ADDED IN PARAGRAPH (G)(3) TO PRESERVE THE
DISCHARGER'S ABILITY TO DETERMINE THE MOST COST-EFFECTIVE METHOD FOR
REDUCING ITS DISCHARGES OF TOXIC POLLUTANTS. IN ADDITION, PARAGRAPH
(G)(2) HAS BEEN ADDED TO PROVIDE FOR THE USE OF INDICATOR PARAMETERS TO
CONTROL HAZARDOUS SUBSTANCES, AS PROPOSED ON AUGUST 29, 1979 (44 FR
50780). THE USE OF INDICATORS AND FINAL SECTION 125.3(G) ARE DISCUSSED
BELOW. WHILE THE DISCUSSION BELOW FOCUSES ON THE CONTROL OF TOXIC
POLLUTANTS, MOST OF THE DISCUSSION PERTAINS TO HAZARDOUS SUBSTANCES AS
WELL.
A. OUTLINE OF STRATEGY. EPA GENERALLY WILL USE THE WORD "INDICATOR"
TO REFER TO CONVENTIONAL AND NONCONVENTIONAL POLLUTANTS USED AS
AUTHORIZED IN SECTION 125.3(G). SEVERAL COMMENTERS POINTED OUT THE BAT
LIMITS ON TOXIC POLLUTANTS, BCT LIMITS ON CONVENTIONAL POLLUTANTS AND
MODIFIED (E.G., TO BPT LEVELS) LIMITS ON NONCONVENTIONAL POLLUTANTS MAY,
IN APPROPRIATE CIRCUMSTANCES, BE USED AS "INDICATOR" POLLUTANTS. EPA
AGREES. HOWEVER, THE USE OF SUCH POLLUTANTS AS INDICATORS DOES NOT
REQUIRE ANY NEW REGULATIONS.
AS DESCRIBED ABOVE IN SECTION III.B.1 OF THIS PREAMBLE, PERMIT
WRITERS MUST SET TECHNOLOGY-BASED LIMITS TO CONTROL POLLUTANTS BY
APPLYING GUIDELINES OR, IN THE ABSENCE OF A-PLICABLE GUIDELINES, BY
SETTING CASE-BY-CASE LIMITS UNDER SECTION 402(A)(1) OF CWA. IN SOME
CASES, IT IS NOT FEASIBLE TO SET LIMITS ON EACH DISCAHRGED POLLUTANT.
THIS IS PARTICULARLY TRUE IN THE CASE OF ORGANIC POLLUTANTS, BECAUSE
THEY CAN BE EXPENSIVE TO SAMPLE AND ANALYZE AND BECAUSE THERE IS
RELATIVELY LIMITED EXPERIENCE AND HISTORICAL DATA DEMONSTRATING
ACHIEVABLE LEVELS OF REMOVALS BY VARIOUS TYPES OF TECHNOLOGY.
EPA BELIEVES THAT THE MOST APPROPRIATE WAY TO REGULATE TOXIC
POLLUTANTS IS TO LIMIT TOXIC POLLUTANTS. AS DISCUSSED IN SECTION
III.B.1 OF THIS PREAMBLE, EPA HAS PREPARED A FIVE-VOLUME TREATABILITY
MANUAL, COMPILING DATA ON TREATABILITY LEVELS OF SPECIFIC TOXIC
POLLUTANTS WHICH HAVE BEEN ACHIEVED BY PARTICULAR TECHNOLOGIES, TO HELP
PERMIT WRITERS TO LIMIT TOXIC POLLUTANTS DIRECTLY WHEN GUIDELINES DO NOT
APPLY.
HOWEVER, AS NOTED ABOVE, DIRECT LIMITATION OF ALL TOXIC
POLLUTANTS IN A WASTE STREAM IS NOT ALWAYS FEASIBLE. IN SUCH CASES,
LIMITING INDICATOR POLLUTANTS (OR SELECTED TOXIC POLLUTANTS) IS
SOMETIMES AN APPROPRIATE ALTERNATIVE. WHEN A CERTAIN TREATMENT
SYSTEM IS THE MOST COST-EFFECTIVE METHOD FOR LIMITING TOXIC
POLLUTANTS, AND WHERE LIMITS ON CERTAIN OTHER POLLUTANTS (E.G.,
BOD, COD, CHROMIUM AND TOTAL PHENOLS) FOUND IN THE DISCHARGE WOULD
REQUIRE INSTALLATION OF THE TREATMENT SYSTEM, THEN THOSE OTHER
POLLUTANTS ARE REFERRED TO AS "INDICATOR" POLLUTANTS.
THE TERM "INDICATOR" IS NOT INTENDED TO DENOTE A STATISTICAL
RELATIONSHIP BETWEEN THE LIMITED POLLUTANTS AND THE NONLIMITED TOXIC
POLLUTANTS. IT MEANS SIMPLY THAT THE LIMITS ON THE INDICATORS WILL
REFLECT (I.E., RESULT IN INSTALLATION OF) THE BEST AVAILABLE TECHNOLOGY
ECONOMICALLY ACHIEVABLE TO REDUCE DISCHARGES OF THE TOXIC POLLUTANTS.
NOTE THAT THE IDENTIFICATION OF BAT TECHNOLOGY FOR THE TOXIC POLLUTANTS
DOES NOT REQUIRE PRECISE KNOWLEDGE OF THE NUMERICAL LEVELS OF THOSE
POLLUTANTS TO BE ACHIEVED BY INSTALLATION OF THAT TECHNOLOGY. OF
COURSE, TO BE DEFENSIBLE AS BAT, THE GENERAL EFFECTIVENESS OF THE
TECHNOLOGY AS COMPARED TO ALTERNATIVE TECHNOLOGIES MUST BE KNOWN. SUCH
QUALITATIVE RELATIONSHIPS ARE MORE EASILY DISCERNED AND AGREED-UPON,
BASED ON EXISTING TREATABILITY DATA, THAN THE ACTUAL NUMBERS WHICH MAY
BE ACHIEVED TO A DESIRED CONFIDENCE INTERVAL BY THE COMPARED
TECHNOLOGIES.
AN APPROACH SIMILAR TO THE INDICATOR APPROACH WAS USED FREQUENTLY IN
DEVELOPING EXISTING BPT GUIDELINES, ALTHOUGH THE TERM "INDICATOR" WAS
NOT USED. SUCH GUIDELINES INCLUDE VARIOUS MINING (COAL, ORE, MINERAL)
AND METALS INDUSTRIES. A TYPICAL EXAMPLE IS THE USE OF LIMITS ON PH,
TSS, AND ONE OR TWO METALS TO ASSURE THE PRECIPITATION NOT ONLY TO THE
LIMITED METALS, BUT OF OTHERS AS WELL.
IF A POLLUTANT IS USED AS AN INDICATOR FOR TOXIC POLLUTANTS, ITS
LIMIT MUST REFLECT BAT FOR THOSE TOXIC POLLUTANTS. THIS IS CLEARLY
REQUIRED BY SECTION 301(B) OF CWA, WHICH STATES THAT LIMITS TO CONTROL
TOXIC POLLUTANTS MUST REFLECT BAT.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 011 OF 74
COSTLE D M ADMINISTRATOR
EPA
113735
REGULATION
THEREFORE, SECTION 125.3(G) PROVIDES THAT, FOR CONVENTIONAL
POLLUTANTS LISTED UNDER SECTION 304(A)(4) OF CWA WHICH ARE USED AS
INDICATORS FOR TOXIC POLLUTANTS, THE DIRECTOR MAY SET LIMITS AT EVEELS
WHICH ARE MORE STRINGENT THAN THE BEST CONVENTIONAL POLLUTANT CONTROL
TECHNOLOGY (BCT). SIMILARLY, FOR NONCONVENTIONAL POLLUTANTS (THOSE NOT
LISTED AS EITHER CONVENTIONAL OR TOXIC POLLUTANTS) WHICH ARE USED AS
INDICATORS FOR TOXIC POLLUTANTS, THE DIRECTOR MAY SET LIMITS WHICH ARE
NOT SUBJECT TO MODIFICATION UNDER SECTIONS 301(C) OR (G) OF CWA. (AS
ONE COMMENTER POINTED OUT, AND AS DIRECTLY ACKNOWLEDGED IN SECTION
125.3(G)(2), NONCONVENTIONAL POLLUTANTS USED AS INDICATORS FOR HAZARDOUS
SUBSTANCES NOT LISTED AS TOXIC UNDER SECTION 307(A) OF CWA ARE SUBJECT
TO REQUESTS FOR 301 (C) AND (G) MODIFICATIONS.)
EPA STRESSES THAT THE DIRECTOR MAY INVOKE SECTION 125.3(G) ONLY AFTER
ESTABLISHING THAT DIRECT LIMITATION OF THE TOXIC POLLUTANT IS NOT
FEASIBLE FOR ECONOMIC OR TECHNICAL REASONS AND THAT LIMITATION OF THE
INDICATOR WILL RESULT IN BAT-LEVEL CONTROL OF THE TOXIC POLLUTANT
DISCHARGES. THE PERMIT APPLICANT MAY CHALLENGE THE USE OF AN INDICATOR
AND OFFER EVIDENCE TO SUPPORT DIRECT LIMITATIONS OF TOXIC POLLUTANTS.
EPA INTENDS TO APPLY THE INDICATOR STRATEGY REASONABLY, WITH TOXIC
LIMITS REMAINING THE PREFERRED APPROACH WHENEVER FEASIBLE.
B. RESPONSE TO COMMENTS. EPA RECEIVED MANY COMMENTS ON PROPOSED
SECTION 125.3(G). THE COMMENTS ALMOST UNIFORMLY FAVORED THE USE OF
INDICATORS IN APPROPRIATE CIRCUMSTANCES WHEN AGREED UPON BY BOTH THE
PERMITTING AUTHORITY AND PERMIT APPLICANT. SEVERAL INDUSTRIES STRONGLY
ENCOURAGED THE USE OF INDICATORS. HOWEVER, MOST COMMENTERS EXPRESSED
RESERVATIONS CONCERNING THE SCOPE OF PROPOSED SECTION 125.3(G).
SEVERAL COMMENTERS WERE CONCERNED THAT PROPOSED SECTION 125.3(G)
MIGHT AUTHORIZE THE DIRECTOR TO IMPOSE INDICATOR LIMITS WHICH WOULD
REQUIRE THE DISCHARGER TO CONTROL DISCHARGES OF TOXIC POLLUTANTS IN A
COST-INEFFECTIVE MANNER BY REQUIRING TOO STRINGENT CONTROL OF THE
INDICATOR. FOR EXAMPLE, SEGREGATION OF TOXIC WASTE STREAMS, PROCESS
CHANGES AND RAW MATERIALS SUESTITUTIONS ARE POSSIBLE MEANS OF
CONTROLLING PARTICULAR TOXIC POLLUTANT DISCHARGES WITHOUT CONTROLLING
ANY PARAMETER INTENDED TO SERVE AS AN INDICATOR.
EPA AGREES THAT LIMITS ON INDICATORS SHOULD NOT BE USED TO REQUIRE
GREATER OR MORE EXPENSIVE EFFLUENT CONTROL THAN WOULD BE REQUIRED IF ALL
POLLUTANTS WERE REGULATED DIRECTLY. SECTION 125.3(G) HAS THEREFORE BEEN
AMENDED BY THE ADDITION OF A REQUIREMENT THAT THE DIRECTOR MAY NOT
IMPOSE A MORE STRINGENT LIMIT ON A POLLUTANT INTENDED TO BE USED AS AN
INDICATOR WHEN THE LIMIT WOULD EFFECTIVELY REQUIRE THE PERMITTEE TO USE
A METHOD OF TREATMENT WHICH DIFFERS FROM THAT WHICH WOULD BE REQUIRED IF
THE TOXIC POLLUTANTS WERE LIMITED DIRECTLY. IN THE EVENT THAT THE
DIRECTOR USES AN INDICATOR LIMIT IN THE DRAFT OR FINAL PERMIT THAT THE
DISCHARGER BELIEVES WOULD PRECLUDE THE USE OF MORE COST-EFFECTIVE
MEASURES TO REGULATE THE INDICATED TOXIC POLLUTANTS, THE DISCHARGER CAN
MAKE APPROPRIATE OBJECTIONS CHALLENGING THE LIMITS UNDER THE PROCEDURES
IN 40 CFR PART 124.
SEVERAL COMMENTERS REQUESTED THAT THE CONCURRENCE OF THE PERMITTEE BE
OBTAINED BEFORE AN INDICATOR LIMIT IS SET IN THE PERMIT. ANOTHER
REQUESTED SIMPLY THAT THE PERMITTEE BE GIVEN AN OPPORTUNITY TO COMMENT
ON THE PROPOSED USE OF INDICATOR LIMITS. EPA BELIEVES THAT IT IS
ADMINISTRATIVELY INFEASIBLE TO OBTAIN THE PERMITTEE'S CONCURRENCE IN
EACH SITUATION BEFORE SETTING INDICATOR LIMITS. HOWEVER, THE PROCEDURES
IN 40 CFR PART 124, WHICH INCLUDE OPPORTUNITIES FOR PERMITTEES TO
COMMENT ON THE DRAFT PERMIT, REQUEST AN EVIDENTIARY HEARING AFTER THE
PERMIT IS ISSUED (UNLESS AN EXPANDED NON-ADVERSARY HEARING HAS BEEN HELD
DURING THE COMMENT PERIOD UNDER PART 124, SUBPART F) AND APPEAL TO THE
ADMINISTRATOR, WILL AFFORD SIGNIFICANT OPPORTUNITY FOR PERMIT WRITERS
AND PERMITTEES TO RESOLVE DISAGREEMENTS. THE STRICT RESTRICTIONS PLACED
BY SECTION 125.3(G) UPON THE USE OF INDICATORS, TOGETHER WITH THE
POSSIBILITY OF ADMINISTRATIVE AND JUDICIAL REVIEW, WILL INSURE THAT
PERMIT WRITERS DO NOT USE INDICATORS IMPROPERLY.
SOME COMMENTERS ARGUED THAT THE LIMITATION OF CONVENTIONAL INDICATORS
BEYOND BCT AND THE DENIAL OF VARIANCE OPPORTUNITIES FOR NONCONVENTIONAL
INDICATORS IS CONTRARY TO THE REQUIREMENTS OF CWA. EPA DISAGREES. WHEN
LIMITS ON INDICATORS ARE USED AS A MEANS TO CONTROL TOXIC POLLUTANTS,
THEY MUST REFLECT THE BEST AVAILABLE TECHNOLOGY ECONOMICALLY ACHIEVABLE
(BAT) TO CONTROL THE TOXIC POLLUTANTS. AS LONG AS THE REQUIREMENTS OF
SECTION 125.3(G) ARE MET (I.E., THAT INDICATORS BE USED ONLY WHERE
DIRECT LIMITATION OF TOXIC POLLUTANTS IS INFEASIBLE AND THAT INDICATORS
NOT BE USED TO REQUIRE CONTROL TECHNOLOGY WHICH IS NOT NEEDED TO CONTROL
THE TOXIC POLLUTANTS), DISCHARGES WILL EFFECTIVELY BE SUBJECT TO
PRECISELY THOSE TECHNOLOGY-BASED REQUIREMENTS REQUIRED BY SECTION 301 OF
CWA.
MANY COMMENTERS EXPRESSED CONCERN OVER THE POSSIBLE LACK OF
CORRELATION BETWEEN LEVELS OF INDICATORS AND THE CONTROLLED TOXIC
POLLUTANTS. THE COMMENTERS NOTED THAT CERTAIN INDICATORS MAY BE PRESENT
IN CONCENTRATIONS SEVERAL ORDERS OF MAGNITUDE GREATER THAN THE TOXIC
POLLUTANT. THIS COMMENT WAS MOST IMAGINATIVELY EXPRESSED BY THE
CHEMICAL MANUFACTURERS ASSOCIATION, WHICH STATED: "TO SELECT AN
'INDICATOR' CONTROLLED TO CONCENTRATIONS SEVERAL ORDERS OF MAGNITUDE
GREATER THAN THE TOXICS INDICATED IS ALMOST LIKE TRYING TO DETERMINE THE
WEIGHT OF A FLEA BY WEIGHING A DOG WITH AND WITHOUT THE FLEA." STILL
OTHER COMMENTERS ATTEMPTED TO SUPPORT THEIR OBJECTIONS BY SUBMITTING
CHARTS DEMONSTRATING THE POOR CORRELATION BETWEEN WHAT THEY TERMED AN
INDICATOR AND A SPECIFIC POLLUTANT (E.G., TOTAL SUSPENDED SOLIDS AND
ZINC) IN THEIR DISCHARGES.
EPA BELIEVES THAT THE ABOVE COMMENTERS HAVE MISCONSTRUED THE
"INDICATOR" CONCEPT AND REGULATION. EPA DOES NOT ASSERT THAT INDICATORS
AND SPECIFIC TOXIC POLLUTANTS CONTROLLED THROUGH THE INDICATOR LIMITS
MUST BE OR ARE LIKELY TO BE STATISTICALLY CORRELATED. NOR DOES IT
ASSERT THAT ANY POLLUTANT USED AS A MEASURE OF A CLASS OF COMPOUNDS WILL
NECESSARILY BE STATISTICALLY CORRELATED TO EACH OR ANY COMPOUND IN THAT
CLASS. RATHER, THE FUNCTION OF AN INDICATOR LIMIT IS TO ASSURE THE
INSTALLATION AND MAINTENANCE OF BAT CONTROLS FOR TOXIC POLLUTANTS.
SUFFICIENTLY LOW LIMITS ON ONE OR MORE INDICATORS MAY REQUIRE
INSTALLATION OF TREATMENT EQUIPMENT KNOWN TO CONSTITUTE BAT FOR CERTAIN
TOXIC POLLUTANTS. IN THAT CASE (AND ONLY IN THAT CASE), THE INDICATOR
LIMITS WILL HAVE SERVED THEIR PURPOSE OF ASSURING BAT CONTROL OF THE
TOXIC POLLUTANTS, WHETHER OR NOT A CORRELATION EXISTS BETWEEN THE
INDICATORS AND TOXICS.
TWO COMMENTERS URGED THE USE OF BIOASSAYS INSTEAD OF INDICATORS OR TO
CALIBARTE INDICATORS. THE USE OF BIOASSAYS IS DISCUSSED BELOW IN
SECTIONS III.D.2.D AND III.E.2 OF THIS PREAMBLE. IT IS NOTED HERE,
HOWEVER, THAT BIOASSAYS AND INDICATORS GENERALLY SERVE DIFFERENT
PURPOSES AND ARE NOT GENERALLY SUBSTITUTABLE FOR EACH OTHER.
SOME INDUSTRIAL COMMENTERS ARGUED THAT IF THE INDICATOR
CONCENTRATIONS ARE NOT STATISTICALLY CORRELATED WITH THE TOXIC
CONCENTRATIONS, A VIOLATION OF AN INDICATOR LIMIT MAY OCCUR EVEN WHEN
THE INDICATED TOXICS ARE NOT BEING DISCHARGED AT SIGNIFICANT LEVELS.
EPA DOES NOT EXPECT THIS TO BE A PROBLEM. INDICATORS WILL BE USED ONLY
WHERE NECESSARY TO CONTROL DISCHARGES OF TOXIC POLLUTANTS. IF A TOXIC
POLLUTANT WILL NOT BE DISCHARGED AT LEVELS ABOVE THOSE ACHIEVABLE BY
BAT, THEN AN INDICATOR LIMIT WILL NOT BE AUTHORIZED BY SECTION 122.3(G).
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 012 OF 74
COSTLE D M ADMINISTRATOR
EPA
113736
REGULATION
IF AN INDICATOR LIMIT IS VIOLATED BY THE PERMITTEE, THIS DEMONSTRATES
IMPROPER OPERATION OR MAINTENANCE BY THE PERMITTEE OF ITS TREATMENT
SYSTEM. IN SUCH A SITUATION, THE VIOLATION MAY PROPERLY RESULT IN AN
ENFORCEMENT ACTION. OF COURSE, A SITUATION MAY ARISE WHERE INDICATOR
LIMITS ARE SET TO CONTROL TOXIC POLLUTANTS WHICH ARE DISCHARGED ABOVE
BAT LEVELS AT THE TIME OF PERMIT APPLICATION, BUT WHICH ARE LATER NO
LONGER PRESENT AT LEVELS REQUIRING CONTROL.
IN THAT CASE, THE PERMITTEE MAY APPLY FOR A PERMIT MODIFICATION TO
ELIMINATE THE INDICATOR LIMIT OR TO MODIFY IT TO A LESS STRINGENT LEVEL
AUTHORIZED BY LAW.
SOME ENVIRONMENTAL GROUPS USED SIMILAR LOGIC TO THAT USED IN THE
PRECEDING COMMENT BY INDJSTRIAL COMMENTERS AND ARGUED THAT IF INDICATOR
CONCENTRATIONS ARE NOT CORRELATED WITH TOXIC POLLUTANT CONCENTRATIONS, A
SIGNIFICANT DISCHARGE OF TOXIC POLLUTANTS MAY NOT RESULT IN A VIOLATION
OF THE INDICATOR LIMIT. EPA AGREES, AS IT ACKNOWLEDGED IN THE JUNE 14
PREAMBLE, THAT THIS IS A POSSIBILITY IN SOME CASES. HOWEVER, THE PROPER
SELECTION OF INDICATORS SHOULD ASSURE THAT VIOLATION OF THE INDICATOR
LIMITS WILL OCCUR WHENEVER THE TREATMENT SYSTEM IS NOT PROPERLY OPERATED
OR MAINTAINED. WHEN THE SYSTEM IS PROPERLY OPERATED OR MAINTAINED, THE
INDICATED TOXICS SHOULD GENERALLY BE REDUCED TO LEVELS BELOW BAT.
FURTHERMORE, AS NOTED ABOVE, THE REGULATIONS ALLOW THE USE OF INDICATORS
ONLY WHERE THE DIRECT LIMITATION OF TOXIC POLLUTANTS IS INFEASIBLE.
EPA ALSO NOTES THAT OCCASIONAL MONITORING OF SPECIFIC TOXIC
POLLUTANTS AS REQUIRED BY THE PERMITTING AUTHORITY WOULD REVEAL WHETHER
AN INDICATED TOXIC IS BEING DISCHARGED AT HIGH LEVELS. IF SO, THE
APPLICATION-BASED NOTIFICATION REQUIREMENTS OF SECTION 122.61(A) WOULD
BE TRIGGERED. THE PERMITTING AUTHORITY COULD THEN, IF NECESSARY AND
FEASIBLE, MODIFY THE PERMIT TO LIMIT THE TOXIC DIRECTLY. EPA HAS
REJECTED THE SUGGESTION BY ONE ENVIRONMENTAL COMMENTER THAT EPA SPECIFY
TECHNOLOGY IN CONJUNCTION WITH THE USE OF INDICATORS. SUCH AN APPROACH
IS INCONSISTENT WITH THE GENERAL STATUTORY APPROACH THAT, EXCEPT FOR THE
SPECIFICATION OF BEST MANAGEMENT PRACTICES IN CERTAIN INSTANCES (SEE
SECTION 122.62(K)), PERMITS SHOULD SPECIFY EFFLUENT LIMITATIONS RATHER
THAN TECHNOLOGIES OR CONTROL PRACTICES.
SOME COMMENTERS SUGGESTED THAT INDICATORS BE USED ONLY FOR MONITORING
PURPOSES. EPA DISAGREES. ALTHOUGH DIRECT LIMITATION OF TOXIC
POLLUTANTS IS REQUIRED WHENEVER FEASIBLE, INDICATORS MAY BE NECESSARY AS
PERMIT LIMITS IN CERTAIN SITUATIONS. HOWEVER, INDICATORS MAY BE USED
FOR FREQUENT MONITORING PURPOSES WHEN TOXICS ARE LIMITED DIRECTLY. IN
SUCH SITUATIONS, THE INDICATORS WOULD BE MONITORED FREQUENTLY, AND THE
TOXICS WOULD BE MONITORED LESS FREQUENTLY TO REDUCE MONITORING COSTS.
SOME ENVIRONMENTAL COMMENTERS SUGGESTED THAT ANY VIOLATION OF AN
INDICATOR LIMIT SHOULD TRIGGER AUTOMATIC MONITORING OF THE INDICATED
TOXICS, AS WAS SUGGESTED IN THE PREAMBLE. SUCH MONITORING WILL OFTEN BE
APPROPRIATE WHEN INDICATOR LIMITS ARE VIOLATED. HOWEVER, IN MANY
INSTANCES, THE SOURCE OF THE VIOLATION MAY BE DISCERNED AND CORRECTED
WITHOUT SUCH TESTING. THEREFORE, EPA HAS REJECTED THIS SUGGESTION. THE
DIRECTOR THUS RETAINS THE FLEXIBILITY TO TAKE THE MOST APPROPRIATE
APPROACH TO DISCOVER AND REMEDY THE CAUSE OF THE VIOLATION. IN
ADDITION, THE FINAL CONSOLIDATED REGULATIONS (IN SECTION 122.62(G))
REQUIRE PERMITS TO SPECIFY THAT VIOLATIONS OF MAXIMUM DAILY DISCHARGE
LIMITATIONS ON INDICATORS, AS WELL AS LIMITATIONS ON TOXIC POLLUTANTS
AND HAZARDOUS SUBSTANCES, MUST BE REPORTED WITHIN 24 HOURS, SO THAT THE
DIRECTOR MAY TAKE APPROPRIATE ACTION.
ONE COMMENTER NOTED THAT THE STATUTORY DEADLINES FOR AN INDICATOR AND
THE INDICATED POLLUTANTS MAY DIFFER IN CERTAIN CASES UNDER SECTION
301(B) OF THE CLEAN WATER ACT. WHEN A PARAMETER IS USED AS AN
INDICATOR, ANY EARLIER STATUTORY DEADLINE FOR THE INDICATED POLLUTANT
CONTROLS.
FINALLY, SOME COMMENTERS ARGUED THAT APPLICATION-BASED LIMITS
(PROPOSED SECTION 122.68(A)) SHOULD NOT APPLY TO INDICATED TOXIC
POLLUTANTS. AS EXPLAINED IN SECTION III.B.1 OF THIS PREAMBLE, EPA HAS
DELETED ITS PROPOSED APPLICATION-BASED LIMITS FROM THE FINAL
REGULATIONS. THUS, UNDER THE FINAL RULE, INDICATED TOXICS WILL NOT BE
SUBJECT TO APPLICATION-BASED LIMITS. THEY WILL, HOWEVER, BE SUBJECT TO
THE MUCH LESS BURDENSOME APPLICATION-BASED NOTIFICATION REQUIREMENTS IN
SECTION 122.61(A).
CONCENTRATED ANIMAL FEEDING
OPERATIONS AND AQUATIC ANIMAL
PRODUCTION FACILITIES: SECTION 122.53(E) AND
FORM 2B
THE REQUIREMENTS FOR APPLICATIONS FROM CONCENTRATED ANIMAL FEEDING
OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES APPEAR IN SECTION
122.53(E) OF THE FINAL REGULATIONS AND IN FORM 2B. ALTHOUGH THESE
REQUIREMENTS WERE INADVERTENTLY OMITTED FROM THE PROPOSED REGULATIONS,
DRAFT FORM 2B WAS PUBLISHED IN THE JUNE 14, 1979 FEDERAL REGISTER (44 FR
34393) AND WAS THE SUBJECT OF SEVERAL COMMENTS.
THE STATE OF NEBRASKA EXPRESSED APPROVAL OF FORM 2B AND NOTED ITS
SIMILARITY TO THE FORM USED BY THEIR STATE. THE AMERICAN FARM BUREAU
HAD TWO SUGGESTIONS WHICH WERE ADOPTED. FIRST, THE QUESTION ON THE
LOCATION OF THE OPERATION HAS BEEN CHANGED TO REQUIRE A DETAILED
DESCRIPTION OF THE LOCATION ONLY IF THE ANSWER TO ITEM VI OF FORM 1 WAS
NOT SUFFICIENT. SECOND, THE QUESTION ABOUT THE NUMBER OF ACRES
AVAILABLE FOR MANURE DISPOSAL HAS BEEN OMITTED; EPA AGREES THAT IT WAS
NOT RELEVANT TO THE NPDES PROGRAM. THE DEPARTMENT OF WATER RESOURCES OF
TEXAS STATED THAT THE FORM WAS TOO TECHNICAL AND CROWDED, BUT SUGGESTED
THAT QUESTIONS SHOULD BE ADDED REQUIRING A DESCRIPTION OF THE METHOD FOR
DISPOSING CONTAMINATED RUNOFF, THE WATER DETENTION FACILITIES, THE
PESTICIDES USED, AND THE PLANS FOR CONSTRUCTING A RUNOFF CONTROL SYSTEM.
THESE SUGGESTIONS HAVE NOT BEEN ADOPTED, BECAUSE THE AGENCY HAS DECIDED
THAT THE SUGGESTED ADDITIONAL INFORMATION IS NOT ROUTINELY NEEDED TO SET
APPROPRIATE PERMIT LIMITS FOR THESE FACILITIES. OF COURSE, TEXAS AND
OTHER STATES MAY REQUIRE THIS INFORMATION ON THEIR APPLICATION FORMS.
PUBLIC AVAILABILITY OF INFORMATION
ON JUNE 14, 1979, EPA PROPOSED NEW APPLICATION REQUIREMENTS AND A NEW
FORM 2C TO BE USED BY EXISTING INDUSTRIAL DISCHARGERS. CONSISTENT WITH
THE CLEAN WATER ACT'S MANDATE THAT EPA FOCUS UPON THE CONTROL OF TOXIC
POLLUTANTS AND WITH EPA'S NEW PERMITTING STRATEGY FOR TOXIC POLLUTANTS
IN RESPONSE TO THAT MANDATE, EPA PROPOSED THAT EXISTING INDUSTRIAL
DISCHARGERS BE REQUIRED TO SUBMIT IN THEIR NPDES PERMIT APPLICATIONS, IN
ADDITION TO OTHER INFORMATION, DETAILED INFORMATION CONCERNING
DISCHARGES OF TOXIC (AND CERTAIN OTHER) POLLUTANTS.
THE REQUIREMENTS REFLECT THE AGENCY'S BELIEF (WHICH WAS SUPPORTED BY
MANY COMMENTERS) THAT DISCHARGERS HAVE A DUTY TO BE AWARE OF ANY
SIGNIFICANT POLLUTANT LEVELS IN THEIR DISCHARGE. IN ADDITION, THEY
SERVE TWO SPECIFIC PURPOSES. MOST IMPORTANT, THEY PROVIDE THE
INFORMATION WHICH PERMIT WRITERS NEED TO DETERMINE WHAT POLLUTANTS ARE
LIKELY TO BE DISCHARGED IN SIGNIFICANT AMOUNTS AND TO SET APPROPRIATE
PERMIT LIMITS. SECOND, THEY WILL BE USED AS A BASIS FOR
APPLICATION-BASED NOTIFICATION REQUIREMENTS UNDER SECTION 122.61(A).
THE FINAL REGULATIONS RETAIN THE ESSENTIAL COMPONENTS OF THE PROPOSED
APPLICATION REQUIREMENTS OF JUNE 14, 1979.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 013 OF 74
COSTLE D M ADMINISTRATOR
EPA
113737
REGULATION
SOME TESTING REQUIREMENTS WERE MODIFIED FOR CERTAIN INDUSTRIES BASED
ON EPA'S CONTINUING REVIEW OF DATA ON THOSE INDUSTRIES' DISCHARGES. IN
ADDITION, CERTAIN REQUIREMENTS WERE ADDED WITH RESPECT TO HAZARDOUS
SUBSTANCES DESIGNATED UNDER SECTION 311 OF CWA, BASED ON EPA'S AUGUST
29, 1979 PROPOSAL (44 FR 50780) RESPONDING TO THE 1978 AMENDMENTS TO
SECTION 311(A)(2).
DISCHARGERS WILL GENERALLY BE REQUIRED TO SUBMIT APPLICATIONS IN
THREE SITUATIONS; WHEN AN INITIAL PERMIT IS NEEDED, WHEN AN EXISTING
PERMIT WILL SOON EXPIRE AND A NEW PERMIT WILL THUS BE NEEDED, AND WHEN A
PERMIT IS BEING REVOKED AND REISSUED UNDER 40 CFR 122.15. HOWEVER,
SECTION 124.5 PROVIDES THAT AN APPLICATION MAY ALSO BE REQUIRED, IF
SPECIFICALLY REQUESTED BY THE PERMITTING AUTHORITY, WHEN GROUNDS FOR
PERMIT MODIFICATION EXIST. THIS REQUIREMENT WAS ALSO CONTAINED IN
PREVIUOUS NPDES REGULATIONS IN SECTION 122.14(E) (44 FR 32905). A MORE
EXTENSIVE REQUIREMENT IN SECTION 122.10(B), THAT NEW APPLICATIONS BE
SUBMITTED FOR CERTAIN TYPES OF MODIFICATIONS, HAS BEEN DELETED IN
RESPONSE TO COMMENTS POINTING OUT THAT A NEW APPLICATION IS NOT ALWAYS
NECESSARY IN SUCH SITUATIONS.
THE NEW APPLICATION REQUIREMENTS AND FORM 2C APPLY ONLY TO EXISTING
DISCHARGERS. UNTIL FORM 2D IS DEVELOPED, EPA FORMS 7550-8,-9 AND -23
SHOULD CONTINUT TO BE USED BY NEW SOURCES AND NEW DISCHARGERS AS WELL AS
BY EXISTING FACILITIES WHICH WILL FIRST BEGIN TO DISCHARGE THROUTH
PARTICULAR OUTFALLS IN THE FUTURE.
APPLICANTS SHOULD NOTE THAT SECTION 402(J) OF CWA REQUIRES THAT ANY
INFORMATION CONTAINED IN A NPDES PERMIT APPLICATION MUST BE MADE
AVAILABLE TO THE PUBLIC. (THIS RULE SET FORTH IN 40 CFR 122.19 AND IS
HIGHLIGHTED IN THE INSTRUCTIONS TO FORM 2C.) THEREFORE, EPA HAS NOT
ACCEPTED THE SUGGESTION BY SOME COMMENTERS THAT CERTAIN PORTIONS OF THE
APPLICATION BE CONFIDENTIAL. HOWEVER, EPA HAS ATTEMPTED TO ADDRESS THIS
POTENTIAL CONCERN BY MINIMIZING REQUESTS FOR INFORMATION WHICH MAY BE
REGARDED BY CERTAIN APPLICANTS AS SENSITIVE.
FIRST, INFORMATION ON THE APPLICANT'S VOLUME OF PRODUCTION (OR OTHER
MEASURE OF TOTAL OPERATION) IS REQUESTED ONLY OF APPLICANTS WHO ARE
SUBJECT TO PRODUCTION-BASED EFFLUENT LIMITATION GUIDELINES. APPLICANTS
SUBJECT ONLY TO CONCENTRATION-BASED GUIDELINES OR TO CASE-BY-CASE
DEVELOPMENT OF INDIVIDUALIZED PERMIT LIMITS (WHEN NO GUIDELINES APPLY),
FOR EXAMPLE, NEED NOT SUBMIT SUCH INFORMATION. SECOND, ALL EFFLUENT
DISCHARGE REPORTING REQUIREMENTS ASK ONLY FOR END-OF-PIPE EFFLUENT DATA,
RATHER THAN IN-PROCESS WASTE STREAM DATA. WHILE PERMIT WRITERS MAY
REQUEST ADDITIONAL INFORMATION NOT REQUIRED IN THE EPA APPLICATION FORM
(UNDER SECTION 122.53(D)(13), DISCUSSED BELOW IN SECTION III.D.3.I OF
THIS PREAMBLE), SUCH INFORMATION IS SUBJECT TO THE PROTECTIONS AFFORDED
BY 40 CFR PART 2.
SOME INDUSTRIAL COMMENTERS ARGUED THAT PRODUCT INFORMATION SUBMITTED
BY APPLICANTS SUBJECT TO PRODUCTION-BASED GUIDELINES SHOULD BE HELD
CONFIDENTIAL. SOME ARGUED THAT IF ALL APPLICATION INFORMATION MUST BE
AVAILABLE TO THE PUBLIC, THEN PRODUCT INFORMATION MUST BE AVAILABLE TO
THE PUBLIC, THEN PRODUCT INFORMATION SHOULD BE DELETED AS AN APPLICATION
REQUIREMENT AND OBTAINED BY PERMIT WRITERS ON A CASE-BY-CASE BASIS, SUCH
AS UNDER THE AUTHORITY OF SECTION 308 OF CWA.
EPA MUST REJECT THE ABOVE SUGGESTION FOR SEVERAL REASONS. FIRST,
IT IS NOT ADMINISTRATIVELY FEASIBLE TO REQUIRE PERMIT WRITERS TO
INDIVIDUALLY REQUEST MANY THOUSANDS OF PERMIT APPLICANTS TO SUBMIT
SUCH INFORMATION SEPARAGELY FROM THE STANDARD APPLICATION PROCESS.
WHILE PERMIT WRITERS WILL IN SOME INSTANCES NEED TO REQUEST
INFORMATION IN ADDITION TO THAT REQUIRED IN THE APPLICATION FORM,
THEY CANNOT BE EXPECTED TO DO SO ON A REGULAR BASIS FOR ROUTINE
INFORMATION. THIS WOULD RESULT IN UNACCEPTABLE DELAYS IN ISSUING
PERMITS.
SECOND, MUCH OF THE INFORMATION IN THE PERMIT APPLICATION IS
"EFFLUENT DATA" WITHIN THE MEANING OF 40 CFR 2.302(D)(2) AND THEREFORE
WOULD HAVE TO BE DISCLOSED UNDER SECTION 308 OF CWA. FOR EXAMPLE, IF
THE APPLICANT IS SUBJECT TO AN EFFLUENT LIMITATIONS GUIDELINE OF 7
POUNDS OF BOD PER 1000 POUNDS OF PRODUCT PRODUCED, A PRODUCTION FIGURE
IS NECESSARY TO DETERMINE THE AMOUNT OF BOD DISCHARGE AUTHORIZED BY THE
APPLICABLE LIMITATION. EVEN IF THE PRODUCTION FIGURE COULD BE PROTECTED
FROM PUBLIC DISCLOSURE, THE FIGURE COULD EASILY BE CALCULATED FROM THE
PERMIT LIMITATION.
THIRD AND MOST IMPORTANT, EPA BELIEVES THAT THE REQUESTED PRODUCT
INFORMATION IS NOT SENSITIVE. APPLICANTS ARE REQUESTED IN THE
INSTRUCTIONS TO THE FORM TO REPORT PRODUCT INFORMATION BASED ON PAST
PRODUCTION, SUCH AS HIGHEST MONTH OF THE PAST YEAR OR THE MONTHLY
AVERAGE OF THE HIGHEST YEAR OF THE PAST FIVE YEARS. (THIS REFLECTS THE
REQUIREMENTS OF 40 CFR 122.63(B).) THE APPLICANT NEED NOT IDENTIFY IN
THE APPLICATION WHICH BASIS WAS USED TO DETERMINE PRODUCTION VOLUME.
MOREOVER, THE REPORTED INFORMATION DOES NOT INDICATE THE APPLICANT'S
ESTIMATE OF FUTURE PRODUCT DEMAND OR ITS ANTICIPATED FUTURE PRODUCTION.
THE FINAL APPLICATION REQUIREMENTS INCLUDE ONE NEW ITEM WHICH MIGHT
BE REGARDED AS TOUCHING UPON SENSITIVE DATA. APPLICANTS ARE NOW
REQUIRED TO LIST ANY TOXIC POLLUTANTS WHICH THEY USE OR MANUFACTURE AS
INTERMEDIATE OR FINAL PRODUCTS OR BYPRODUCTS. EPA HAS TRIED TO MINIMIZE
THE POSSIBILITY THAT REPORTING THIS INFORMATION WILL RESULT IN
REVELATION OF TRADE SECRETS. FIRST, APPLICANTS NEED NOT INDICATE ON
THIS LIST THE SPECIFIC BASIS FOR LISTING ANY PARTICULAR POLLUTANT; THE
BASIS WILL BE ASSUMED TO BE ONE OF THE ABOVE FACTORS. SECOND,
APPLICANTS NEED NOT LIST THE AMOUNT USED OR MANUFACTURED.
CERTAIN WORDING CHANGES HAVE BEEN MADE IN RESPONSE TO COMMENTS IN
OTHER QUESTIONS ON FORM 2C TO MINIMIZE THE AMOUNT OF POTENTIALLY
SENSITIVE INFORMATION REQUIRED. THESE CHANGES ARE DISCUSSED IN MORE
DETAIL IN SECTION III.D.3 OF THIS PREAMBLE.
POLLUTANT DISCHARGES
A. TOXIC POLLUTANTS: SECTION 122.53(D)(7)(II) AND ITEM V-C. THE
CHIEF INNOVATION OF THE NEW NPDES APPLICATION REQUIREMENTS IS THAT
APPLICANTS MUST REPORT DISCHARGES OF TOXIC POLLUTANTS. THE PROPOSAL
REQUIRED APPLICANTS IN 36 INDUSTRIES (THE 34 PRIMARY INDUSTRIES LISTED
IN THE MODIFIED NRDC SETTLEMENT AGREEMENT, PLUS THE ASBESTOS AND
FERROALLOYS INDUSTRIES) TO TEST FOR ALL TOXIC POLLUTANTS (EXCEPT FOR
ASBESTOS AND TCDD, WHICH ARE DISCUSSED BELOW). THE FINAL REGULATIONS
HAVE MODIFIED THIS REQUIREMENT FOR CERTAIN INDUSTRIES.
THE REPORTING REQUIREMENTS FOR TOXIC POLLUTANTS MAY BE SUMMARIZED AS
FOLLOWS:
(1) ALL APPLICANTS IN THE 34 PRIMARY INDUSTRIES LISTED IN THE NRDC
CONSENT DECREE MUST ANALYZE THEIR PROCESS WASTEWATER OUTFALLS AND REPORT
QUANTITATIVE RESULTS FORTHE 13 METALS ON THE TOXIC POLLUTANT LIST AND
FOR CYANIDE AND TOTAL PHENOLS.
(2) ALL APPLICANTS IN THE 34 PRIMARY INDUSTRIES MUST ANALYZE THEIR
PROCESS WASTEWATER OUTFALLS AND REPORT QUANTITATIVE RESULTS FOR SOME OR
ALL OF THE 114 ORGANIC TOXIC POLLUTANTS. THE ORGANIC TOXIC POLLUTANTS
HAVE BEEN GROUPED INTO THE FOUR FRACTIONS WHICH ARE USED IN THE GAS
CHROMATOGRAPHY/MASS SPECTROMETRY (GC/MS) ANALYTICAL TEST METHOD. THE
REGULATIONS AND FORM 2C EACH CONTAIN TABLES SHOWING THE FRACTIONS WHICH
APPLICANTS IN EACH OF THE 34 INDUSTRIES MUST TEST FOR.
(3) ALL APPLICANTS MUST INDICATE THE PRESENCE OF ANY TOXIC POLLUTANTS
WHICH THEY KNOW OR HAVE REASON TO BELIEVE ARE OR WILL BE DISCHARGED FROM
ANY OUTFALL. THEY ARE REQUIRED TO ANALYZE ONLY FOR THOSE POLLUTANTS
WHICH THEY KNOW OR HAVE REASON TO BELIEVE ARE CURRENTLY DISCHARGED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 014 OF 74
COSTLE D M ADMINISTRATOR
EPA
113738
REGULATION
AN EXEMPTION FROM THE SECOND AND THIRD REQUIREMENTS LISTED ABOVE IS
PROVIDED FOR SMALL BUSINESSES WHOSE AVERAGE ANNUAL GROSS SALES TOTAL
LESS THAN $100,000 (OR, IN THE CASE OF COAL MINES, THOSE WHOSE AVERAGE
ANNUAL PRODUCTION IS LESS THAN 100,000 TONS OF COAL). SEE SECTION
III.F.6.B OF THIS PREAMBLE.
THE PROPOSED REQUIREMENT THAT APPLICANTS IN THE 36 INDUSTRIES ANALYZE
FOR THE 129 TOXIC POLLUTANTS WAS HEAVILY COMMENTED UPON. ENVIRONMENTAL
GROUPS, MANY PRIVATE CITIZENS, AND SOME STATE AGENCIES EXPRESSED STRONG
SUPPORT FOR THE ANALYSIS OF THE 129 TOXIC POLLUTANTS AS A MINIMUM
REQUIREMENT. (MANY OF THESE COMMENTERS ARGUED, IN FACT, THAT THE
REQUIREMENT IS INSUFFICIENT IN ITSELF AND SHOULD BE SUPPLEMENTED BY
BIOMONITORING REQUIREMENTS. SEE DISCUSSION IN SECTION III.D.2.D OF THIS
PREAMBLE). ON THE OTHER HAND, MANY INDUSTRIAL COMMENTERS ARGUED THAT
THE REQUIREMENT WAS TOO BROAD, IMPOSING SIGNIFICANT COSTS TO SAMPLE AND
ANALYZE FOR POLLUTANTS WHICH MAY BE ABSENT FROM APPLICANTS' WASTE
STREAMS. IN PARTICULAR, COMMENTERS FROM CERTAIN INDUSTRIES (PULP AND
PAPER, MINING, OIL AND GAS EXTRACTION, METAL FINISHING, STEAM ELECTRIC
GENERATING PLANTS, TEXTILES, RUBBER PROCESSING, AND LAUNDRIES) ARGUED
FOR FULL OR PARTIAL EXEMPTIONS FOR THEIR INDUSTRIES OR FOR ALL
INDUSTRIES.
IN THE JUNE 14 PREAMBLE, EPA STATED IN SUPPORT OF ITS PROPOSED
REPORTING REQUIREMENTS THAT ALTHOUGH EPA HAS SAMPLED PLANTS IN EACH
INDUSTRIAL CATEGORY AS PART OF THE EFFLUENT GUIDELINES DEVELOPMENT
PROCESS, PLANT-UNIQUE SITUATIONS COULD BE DISCOVERED ONLY THROUGH WASTE
STREAM ANALYSIS BY EACH DISCHARGER. AS DESCRIBED TODAY IN SECTION III.B
OF THIS PREAMBLE, EPA NEEDS TO BE AWARE OF THOSE SPECIFIC SITUATIONS TO
WRITE ADEQUATE PERMITS. THE AGENCY RESTRICTED ITS PROPOSED REQUIREMENTS
TO THE 36 INDUSTRIES WHICH EPA CONCLUDED WERE LIKELY TO DISCHARGE AT
LEAST SOME TOXIC POLLUTANTS. THE AGENCY NOTED, HOWEVER, THAT IT WOULD
CONTINUE TO INVESTIGATE EXISTING DATA AND WOULD ADD OR DELETE
REQUIREMENTS TO ENSURE THAT WASTE STREAMS BE ANALYZED ONLY FOR
POLLUTANTS WHICH MAY BE DISCHARGED.
IN RESPONSE TO EPA'S SPECIFIC REQUEST FOR COMMENTS ON THIS ISSUE,
SEVERAL SUGGESTIONS WERE RECEIVED. THE COMMENTS AND EPA'S RESPONSES ARE
SET FORTH BELOW:
1. COMMENT: EPA SHOULD REQUIRE APPLICANTS TO TEST ONLY FOR THE
POLLUTANTS REGULATED IN THE RELEVANT EFFLUENT LIMITATIONS GUIDELINES.
RESPONSE: EPA HAS NOT ADOPTED THIS APPROACH BECAUSE IT IGNORES THE
DIVERSITY AMONG PLANTS WHICH THE APPLICATION REQUIREMENTS ARE DESIGNED
TO ADDRESS. IT ALSO WOULD REQUIRE EPA TO WAIT FOR GUIDELINES TO BE
FINALLY PROMULGATED BEFORE SETTING APPLICATION REQUIREMENTS. THAT
APPROACH WOULD DELAY THE PERMITTING PROCESS AND POSSIBLY RESULT IN
FAILURES TO MEET THE STATUTORY 1984 DEADLINE.
2. COMMENT: EPA SHOULD REQUIRE APPLICANTS TO TEST ONLY FOR THOSE
TOXIC POLLUTANTS WHICH THEY KNOW OR HAVE REASON TO BELIEVE ARE PRESENT
IN THEIR DISCHARGES. RESPONSE: EPA HAS NOT ADOPTED THIS APPROACH FOR
PRIMARY INDUSTRIES BECAUSE, AS EPA HAS LEARNED DURING ITS INDUSTRY
SAMPLING EFFORTS, IT CAN BE DIFFICULT TO PREDICT WHAT TOXIC POLLUTANTS
WILL BE DISCHARGED FROM AN OUTFALL. HOWEVER, THIS APPROACH IS BEING
USED FOR SECONDARY INDUSTRIES AND FOR PRIMARY INDUSTRIES' NON-PROCESS
WASTEWATER OUTFALLS, SINCE THEIR DISCHARGES ARE MUCH LESS LIKELY TO BE
TOXIC.
3. COMMENT: EPA SHOULD LEAVE THE APPLICATION REQUIREMENTS TO BE
DETERMINED ON A CASE-BY-CASE BASIS BY THE DIRECTOR OR SHOULD ALLOW THE
DIRECTOR TO WAIVE REQUIREMENTS ON A CASE-BY-CASE BASIS. RESPONSE: EPA
HAS NOT ADOPTED EITHER APPROACH. EPA IS REQUIRED BY SECTION 304(I) OF
CWA TO DEVELOP "UNIFORM APPLICATION FORMS AND OTHER MINIMUM
REQUIREMENTS." WHILE THIS DOES NOT PRECLUDE EPA FROM MAKING VALID
DISTINCTIONS AMONG INDUSTRIES WITH DIFFERING DISCHARGES, EPA SHOULD NOT
BURDEN PERMIT WRITERS WITH THE OBLIGATION OF DETERMINING THE POLLUTANTS
WHICH EACH PARTICULAR APPLICANT MUST TEST FOR. INDEED, AS NOTED IN THE
PRECEDING PARAGRAPH, IT WOULD BE DIFFICULT FOR PERMIT WRITERS AND
APPLICANTS TO DETERMINE WHETHER CERTAIN TOXIC POLLUTANTS WILL BE
DISCHARGED BY THE APPLICANT WITHOUT TESTING THE DISCHARGE. FURTHERMORE,
ALLOWING APPLICATION REQUIREMENTS TO BE ESTABLISHED ON A CASE-BY -CASE
BASIS WOULD RESULT IN UNFAIRLY DISPARATE APPLICATION REQUIREMENTS FOR
SIMILAR APPLICANTS. (NOTE THAT EPA DOES NOT BAR PERMIT WRITERS FROM
REQUESTING FURTHER INFORMATION WHERE APPROPRIATE FOR A PARTICULAR
DISCHARGE. HOWEVER, THE MINIMUM REQUIREMENTS SHOULD BE UNIFORM AS
REQUIRED BY LAW.)
4. COMMENT: EPA SHOULD ALLOW THE SUBSTITUTION OF BIOMONITORING FOR
CHEMICAL MONITORING. RESPONSE: ALTHOUGH BIOMONITORING PROVIDES
INFORMATION ON THE TOXICITY OF A DISCHARGE, IT DOES NOT IDENTIFY
PARTICULAR POLLUTANTS WHICH MAY BE CAUSING THE TOXCITY (CERTAIN
BIOLOGICAL METHODS OF IDENTIFYING SPECIFIC CHEMICALS ARE IN THE
DEVELOPMENT STAGE, HOWEVER). TO CONTROL THE TOXICITY, IT IS IMPORTANT
TO IDENTIFY AND ADDRESS THE SOURCES OF THAT TOXICITY. THUS
BIOMONITORING IS NOT A SUITABLE REPLACEMENT FOR CHEMICAL MONITORING,
ALTHOUGH IT MAY BE A USEFUL SUPPLEMENT IN CERTAIN SITUATIONS (SEE
DISCUSSION IN SECTION III.E.2.E AND III.E.2 OF THIS PREAMBLE).
5. COMMENT: TOXIC POLLUTANTS IN CERTAIN EFFLUENTS MAY BE BETTER
CONTROLLED THROUGH BEST MANAGEMENT PRACTICES PROGRAMS; THUS TESTING IS
NOT NECESSARY. RESPONSE: REGARDLESS OF THE APPROPRIATE METHOD OF
CONTROL, ONE FIRST NEEDS TO IDENTIFY THE TOXIC POLLUTANTS BEING
DISCHARGED AND THE MEANS OF THE DISCHARGE. FURTHERMORE, BEST MANAGEMENT
PRACTICES WILL BE USED TO REGULATE PROCESS WASTEWATER DISCHARGES THROUGH
OUTFALLS ONLY IN RELATIVELY FIW CIRCUMSTANCES (SEE SECTION 122.62(K));
END-OF-PIPE BAT CONTROLS GENERALLY WILL BE USED FOR SUCH DISCHARGES.
6. COMMENT: APPLICANTS SHOULD BE REQUIRED TO TEST ONLY FOR THOSE
POLLUTANTS DETECTED OR LIKELY TO BE DETECTED AT SIGNIFICANT LEVELS,
BASED ON DATA AVAILABLE TO EPA, SUCH AS FROM ITS INDUSTRY SAMPLING
EFFORTS. RESPONSE: WHILE EPA HAS NOT SELECTED PRECISELY THIS APPROACH,
THE FINAL REGULATION (DESCRIBED IMMEDIATELY BELOW) TAKES A SIMILAR
APPROACH AND IMPOSES SIMILAR COSTS.
EPA HAS DECIDED TO USE DIFFERENT APPROACHES FOR THE METALS AND
THE ORGANIC CHEMICALS ON THE TOXIC POLLUTANT LIST.
ALL APPLICANTS IN THE PRIMARY INDUSTRIES (THE 34 NRDC CONSENT DECREE
INDUSTRIES) MUST TEST THEIR PROCESS WASTEWATER DISCHARGES FOR ALL THE
TOXIC METALS, BECAUSE ALMOST ALL PRIMARY INDUSTRY APPLICANTS DISCHARGE
SOME METALS AND BECAUSE THE INCREMENTAL COST OF TESTING FOR ALL 13 TOXIC
METALS OVER THE COST OF TESTING FOR A FEW METALS IS RELATIVELY SMALL.
ON DECEMBER 3, 1979 (44 FR 69464), EPA PROPOSED A NEW METHOD FOR TESTING
METALS IN ADDITION TO THOSE ALREADY PROMULGATED IN 40 CFR PART 136. THE
METHOD IS ICP (INDUCTIVELY COUPLED PLASMA OPTICAL EMISSION
SPECTROSCOPY), WHICH PROVIDES A SIMULTANEOUS DETERMINATION OF SEVERAL
METALS IN A SAMPLE. WHEN THIS METHOD IS PROMULGATED, IT MAY TAKE THE
COST OF TESTING FOR ALL 13 TOXIC METALS COMPARABLE TO TESTING FOR FEWER
METALS USING OTHER METHODS.
ALL APPLICANTS IN PRIMARY INDUSTRIES MUST ALSO TESTING PROCESS
WASTEWATER DISCHARGES FOR CYANIDE AND TOTAL PHENOL. THE PROPOSED
REQUIREMENT THAT ALL APPLICANTS TEST ALL DISCHARGES FOR THESE POLLUTANTS
HAS BEEN DELETED, AS SEVERAL COMMENTERS SUGGESTED BECUASE THEY ARE NOT
LIKELY TO BE FOUND IN MOST DISCHARGES OTHER THAN PRIMARY INDUSTRY
PROCESS WAWTEWATER DISCHARGES. HOWEVER, APPLICANTS MUST TEST FOR THEM
WHENEVER THEY EXPECT THEM TO BE DISCHARGED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 015 OF 74
COSTLE D M ADMINISTRATOR
EPA
113739
REGULATION
"PROCESS WASTEWATER" IS DEFINED IN THE GLOSSARY OF THE INSTRUCTIONS
TO THE CONSOLIDATED APPLICATION FORMS. IN CASES OF UNCERTAINTY IN
APPLYING THE DEFINITION, APPLICANTS SHOULD CONTACT THERI PERMITTING
AUTHORITIES.
EPA HAS MODIFIED ITS PROPOSED REQUIREMENTS FOR ORGANIC TOXIC
POLLUTANTS BY EXEMPTING CERTAIN INDUSTRIES FROM TESTING FOR CERTAIN
POLLUTANTS. THE APPROACH USED BY EPA APPLIES TWO FACTORS. FIRST, AS
SUGGESTED IN THE SIXTH COMMENT LISTE ABOVE, IS THE LIKELIHOOD THAT AN
APPLICANT MAY DISCHARGE A PARTICULAR POLLUTANT. SECOND IS THE EXTENT TO
WHICH DELETION OF A TOXIC POLLUTANT OR GROUP OF TOXIC POLLUTANTS FROM
THE LIST OF REPORTABLE POLLUTANTS RESULTS IN COST SAVINGS.
EPA HAS DETERMINED THE LIKELIHOOD OF DISCHARGE BY USING AN APPROACH
SUGGESTED BY MANY COMMENTERS. EPA DICIDED THAT ANY POLLUTANT WHICH HAS
BEEN DETECTED AT GREATER THAN 10 SYMBOL OMITTED)G/1 (DIFFERENT CUTOFFS
ARE USED FOR SEVERAL PESTICIDES) IN ONE OR MORE SAMPLES IN AN INDUSTRY
SHOULD BE TESTED FOR BY ALL APPLICANTS IN THE INDUSTRY. THIS APPROACH
HAS BEEN SELECTED BECAUSE, IN MOST INDUSTRIES, EPA HAS SAMPLES ONLY A
SMALL PERCENTAGE OF THE PLANTS. THUS THE APPEARANCE OF A POLLUTANT IN
THE DATA BASE FOR AN INDUSTRY IMPLIES THAT IT MAY BE DISCHARGED BY
SEVERAL PLANTS IN THAT INDUSTRY.
IN ANALYZING THE COSTS OF VARIOUS LEVELS OF TESTING REQUIREMENTS, EPA
CONSIDERED BOTH SAMPLING AND ANALYTICAL COSTS. (DETAILED DERIVATIONS OF
COSTS ASSUMED IN THIS DISCUSSION ARE CONTAINED BELOW IN SECTION III.F OF
THIS PREAMBLE.) SAMPLING COSTS FOR ONE OUTFALL ($1,550) ARE NOT AFFECTED
BY THE NUMBER OF POLLUTANTS ANALYZED. THUS, THE COST OF COLLECTING A
SAMPLE TO ANALYZE FOR ALL 114 ORGANIC TOXIC POLLUTANTS IS EQUIVALENT TO
THE COST OF SAMPLING FOR ONLY A FEW OF THEM. ANALYTICAL COSTS, HOWEVER,
ARE SOMEWHAT DEPENDENT ON THE NUMBER OF POLLUTANTS ANALYZED. USING GAS
CHROMATOGRAPHY/MASS SPECTROMETRY (GC/MS), POLLUTANTS ARE GROUPED INTO
FOUR FRACTIONS WHICH ARE BASED UPON SIMILAR CHEMICAL AND PHYSICAL
PROPERTIES. WITHIN A FRACTION, VIRTUALLY IDENTICAL ANALYTICAL COSTS ARE
INCURRED WHETHER ONE POLLUTANT OR ALL POLLUTANTS IN A FRACTION ARE
TESTED. MOREOVER, SINCE POLLUTANTS IN THE SAME FRACTION SHARE SIMILAR
CHEMICAL AND PHYSICAL PROPERTIES, THE PRESENCE OF A POLLUTANT IN A
DISCHARGE INDICATES SOME LIKELIHOOD THAT OTHER POLLUTANTS IN THE
FRACTION MAY ALSO BE DISCHARGED. HOWEVER, ELIMINATION OF ENTIRE
FRACTIONS FROM TESTING REQUIREMENTS CAN REDUCE COSTS. THUS, ASSUMING
THAT TESTING FOR ALL FOUR FRACTIONS MAY COST $2,000, DELETION OF ONE
FRACTION MAY SAVE $150 TO $500, DEPENDING ON THE FRACTION DELETED.
BASED ON THE REASONING OUTLINED ABOVE, EPA HAS DECIDED TO REQUIRE
APPLICANTS IN EACH PRIMARY INDUSTRY TO TEST PROCESS WASTEWATER FOR ANY
POLLUTANT WHICH HAS BEEN FOUND IN DISCHARGES FROM PLANTS IN THAT
INDUSTRY, PLUS ANY OTHER POLLUTANTS WHICH ARE CONTAINED IN THE SAME
GC/MS FRACTION AS THAT POLLUTANT (SINCE THIS ADDITIONAL ANALYSIS IS
VIRTUALLY COSTLESS AND MAY YIELD FURTHER INFORMATION OF SIGNIFICANCE).
(APPLICANTS WITH SALES OF LESS THAN $100,000 PER YEAR, OR PRODUCTION OF
LESS THAN 100,000 TONS PER YEAR IN THE CASE OF COAL MINES, ARE EXEMPT
FROM TESTING FOR ORGANIC TOXIC POLLUTANTS UNDER SECTION 122.53(D)(8).
SEE THE DISCUSSION IN SECTION III.F.6 BELOW.) WHEN NO POLLUTANTS OF A
PARTICULAR FRACTION HAVE BEEN DETECTED IN ANY SAMPLED PLANT IN AN
INDUSTRY, THAT FRACTION HAS BEEN DELETED AS A REQUIREMENT FOR APPLICANTS
IN THAT INDUSTRY.
AFTER FORMULATING THE RULE FOR TESTING REQUIREMENTS AS OUTLINED
ABOVE, THE AGENCY REVIEWED THE DATA WHICH HAS BEEN GENERATED IN ITS
EFFLUENT GUIDELINES SAMPLING EFFORTS TO DETERMINE WHICH POLLUTANTS HAVE
BEEN FOUND IN EACH OF THE 34 PRIMARY INDUSTRIES. THE AGENCY RECOGNIZES
THE TECHNICAL PROBLEMS IN ITS APPROACH. MOST IMPORTANT, EPA'S DATA
BASE, THE MOST COMPREHENSIVE DATA BASE AVAILABLE, IS TO SOME EXTENT
SUBJECT TO ERRORS IN SAMPLING, ANALYSIS AND REPORTING. ON ONE HAND,
THERE IS SOME POSSIBILITY THAT A POLLUTANT SHOWN BY THE DATA TO HAVE
BEEN FOUND IN A PLANT'S DISCHARGE WAS NOT ACTUALLY PRESENT. ON THE
OTHER HAND, IT IS POSSIBLE THAT A POLLUTANT WHICH WAS PRESENT IN A
DISCHARGE WILL BE SHOWN IN THE DATA TO BE ABSENT. ANOTHER PROBLEM IS
THAT THERE IS LIMITED DATA FOR CERTAIN CATEGORIES AND ESPECIALLY FOR
SUBCATEGORIES.
GIVEN THE SHORTCOMINGS IN THE AGENCY'S DATA BASE, IT BECAME NECESSARY
TO DECIDE WHETHER TO BASE TESTING REQUIREMENTS FOR A GC/MS FRACTION ON A
SINGLE DETECTION OF A POLLUTANT IN THE FRACTION, A GREATER NUMBER OF
DETECTIONS, OR UPON SOME MINIMUM RATIO OF DETECTIONS TO SAMPLES. THE
AGENCY DECIDED TO ADOPT THE APPROACH OF ONE DETECTION AT CONCENTRATIONS
ABOVE 10 (SYMBOL OMITTED)G/1. FIRST, THIS APPROACH IS LESS ARBITRARY
THAN THE ALTERNATIVES, WHICH WOULD HAVE REQUIRED A JUDGMENT WITHOUT ANY
TECHNICAL BASIS THAT SOME OTHER NUMBER CORRECTLY REPRESENTS THE DEGREE
OF ERROR IN THE DATA BASE. THE SELECTION OF A SINGLE DETECTION AS A
CRITERION ACKNOWLEDGES THE DIFFICULTY OF MAKING SUCH A JUDGMENT AND
RELIES RATHER ON THE ASSUMPTION THAT A DETECTION INDICATES A REASONABLE
LIKELIHOOD OF ACTUAL PRESENCE OF A TOXIC POLLUTANT IN A DISCHARGE.
SECOND, AS NOTED ABOVE, THE COST SAVINGS OF DELETING A PARTICULAR
FRACTION FROM THE TESTING REQUIRCMENTS FOR A PARTICULAR INDUSTRY ARE
ONLY A SMALL PART OF THE REMAINING SAMPLING AND ANALYSIS COSTS.
THEREFORE, IT IS APPROPRIATE TO REQUIRE TESTING OF A FRACTION WHENEVER A
REASONABLE LIKELIHOOD EXISTS THAT A POLLUTANT IN THE FRACTION IS BEING
DISCHARGED.
THIRD, THE ADOPTED APPROACH IS THE MOST ENVIRONMENTALLY PROTECTIVE
ALTERNATIVE TO EPA'S PROPOSED APPROACH: REQUIRING TESTING FOR ALL FOUR
FRACTIONS WITHOUT EXCEPTION. ANY FURTHER RELAXATION OF THE PROPOSAL
WOULD RESULT IN A HIGHER PROBABILITY THAT SOME PLANTS WOULD NOT BE
REQUIRED TO TEST FOR CERTAIN TOXIC POLLUTANTS WHICH THEY DISCHARGE.
THE NEED FOR STRINGENT TESTING REQUIREMENTS IS PARTICULARLY STRONG IN
LIGHT OF THE AGENCY'S DECISION NOT TO REQUIRE BIOMONITORING FOR TOXIC
EFFECTS ON A UNIFORM BASIS. AS NOTED ELSEWHERE IN THE PREAMBLE, MANY
PRIVATE CITIZENS AS WELL AS ENVIRONMENTAL GROUPS HAVE URGED THAT EPA
REQUIRE BIOMONITORING. EPA'S CHIEF ARGUMENT FOR NOT REQUIRING
BIOMONITORING AT THIS TIME IS THAT IT IS MORE APPROPRIATE TO FOCUS THE
TESTING REQUIREMENTS AT THIS STAGE UPON MONITORING OF SPECIFIC TOXIC
POLLUTANTS. THIS ARGUMENT WOULD BE WEAKENED SUBSTANTIALLY BY A FURTHER
RELAXATION OF THE TOXIC POLLUTANT TESTING REQUIREMENTS.
THE FINAL TOXIC POLLUTANT TESTING REQUIREMENTS FOR PRIMARY INDUSTRIES
STRIKE A REASONABLE BALANCE BETWEEN THE COMPETING CONSIDERATIONS OF COST
AND ENVIRONMENTAL PROTECTION BY EXEMPTING INDUSTRIES FROM TESTING THOSE
GC/MS FRACTIONS IN WHICH TOXIC POLLUTANTS HAVE NOT BEEN FOUND. THIS
CRITERION HAS RESULTED IN THE EXEMPTION OF 16 OUT OF THE 34 PRIMARY
INDUSTRIES FROM TESTING FOR THE POLLUTANTS IN THE PESTICIDE FRACTION.
IN ADDITION, 3 INDUSTRIES ARE EXEMPTED FROM TESTING FOR POLLUTANTS IN
THE ACID FRACTION, 1 INDUSTRY IS EXEMPTED FROM TESTING FOR THE
POLLUTANTS IN THE VOLATILE FRACTION, AND 1 INDUSTRY IS EXEMPTED FROM
TESTING FOR POLLUTANTS IN THE BASE/NEUTRAL FRACTION. SEE PART 122,
APPENDIX D, TABLE I, AND TABLE 2C-2 OF THE INSTRUCTIONS TO FORM 2C.
EPA HAS DELETED THE PROPOSED REQUIREMENT THAT APPLICANTS IN THE
FERROALLOYS AND ASBESTOW MANUFACTURING INDUSTRIES TEST FOR ALL
TOXIC POLLUTANTS. EPA'S INDUSTRY TOXIC POLLUTANT SAMPLING EFFORTS
COVERED ONLY THE PRIMARY INDUSTRIES. EPA THUS LACKS THE DATA TO
SUPPORT A SUPPOSITION THAT SECONDARY INDUSTRIES ARE DISCHARGING
TOXIC POLLUTANTS.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 016 OF 74
COSTLE D M ADMINISTRATOR
EPA
113740
REGULATION
THUS SECONDARY INDUSTRIES, INCLUDING THE FERROALLOYS AND ASBESTOS
INDUSTRIES, ARE EXEMPTED FROM MANDATORY TESTING FOR TOXIC POLLUTANTS.
HOWEVER, IN ADDITION TO THE TESTING REQUIREMENTS SPECIFIED FOR
PROCESS WASTEWATER DISCHARGES FROM PRIMARY INDUSTRIES, ALL APPLICANTS
ARE REQUIRED TO REPORT DISCHARGES OF ANY TOXIC POLLUTANT WHICH THEY KNOW
OR HAVE REASON TO BELIEVE MAY BE DISCHARGED THROUGH ANY OUTFALL. THIS
REQUIREMENT INCLUDES POLLUTANTS IN GC/MS FRACTIONS NOT MARKED IN TABLE
2C-2 OF THE INSTRUCTION TO FORM 2C, POLLUTANTS DISCHARGED BY PRIMARY
INDUSTRIES THROUGH NONPROCESS WASTEWATER OUTFALLS, AND POLLUTANTS
DISCHARGED BY SECONDARY INDUSTRIES THROUGH ANY OUTFALL. THIS
REQUIREMENT IS SIMILAR TO THE PROPOSAL, WITH ONE CHANGE. THE PROPOSAL
ALLOWED APPLICANTS TO ESTIMATE SUCH DISCHARGES. THE FINAL REGULATION
ALLOWS ESTIMATION OF PRESENCE OR ABSENCE; HOWEVER, APPLICANTS ARE NOW
REQUIRED TO TEST FOR ANY POLLUTANT KNOWN OR BELIEVED TO BE PRESENT IN
THE DISCHARGE.
EPA HAS DECIDED TO REQUIRE TESTING FOR ONE TOXIC POLLUTANT FOR WHICH
THE PROPOSAL ALLOWED ESTIMATES: TCDD
(2,3,7,8-TETRACHLORODIBENZO-P-DIOXIN). TESTING FOR TCDD WAS EXCLUDED
FROM THE PROPOSAL BECAUSE THE ROUTINE SHIPPING AND USE OF ANALYTICAL
STANDARDS OF TCDD NEEDED TO PERFORM QUANTITATIVE ANALYSES WOULD ENDANGER
THE PUBLIC DUE TO THE EXTREME TOXICITY OF TCDD. THE NATIONAL WILDLIFE
FOUNDATION CORRECTLY NOTED THAT DUE TO TCDD'S TOXICITY, "ADDED RATHER
THAN LESSENED PRECAUTIONS MUST BE TAKEN TO AVOID ITS UNDETECTED
DISCHARGE INTO THE ENVIRONMENT." ACCORDINGLY, EPA WILL REQUIRE CERTAIN
DISCHARGERS TO SCREEN FOR TCDD IN A MANNER WHICH DOES NOT REQUIRE THE
SHIPPING OF ANALYTICAL STANDARDS.
APPLICANTS WHO PRODUCE OR USE THE FOLLOWING COMPOUNDS MUST SCREEN FOR
TCDD:
2,4,5-TRICHLOROPHENOXY ACETIC ACID (2,4,5-T)
2-(2,4,5-TRICHLOROPHENOXY) PROPANOIC ACID (SILVEX, 2,4,5-TP)
2-(2,4,5-TRICHLOROPHENOXY) ETHYL 2,2,-DICHLOROPROPIONATE (ERBON)
0,0-DIMETHYL 0-(2,4,5-TRICHLOROPHENYL) PHOSPHOROTHINATE (RONNEL)
HEXACHLOROPHENE (HCP)
2,4,5-TRICHLOROPHENOL (TCP)
THIS LIST IS BASED UPON A RECENT DRAFT STUDY CONDUCTED BY EPA'S
OFFICE OF TOXIC SUBSTANCES: DIOXINS: SOURCES, TRANSPORT, EXPOSURE AND
CONTROL (APRIL 1979). THESE STUDIES INDICATE THAT TCDD IS LIKELY TO BE
A CONTAMINANT IN THE SIX COMPOUNDS LISTED ABOVE.
TCDD SCREENING WILL BE DONE BY THE USE OF GC WITH AN ELECTRON CAPTURE
DETECTOR. THIS METHOD WILL REVEAL THE PRESENCE OF DIOXIN BUT WILL NOT
SEPARATE ITS ISOMERS. HOWEVER, POSITIVE RESULTS MAY THEN BE USED BY THE
PERMIT WRITER AS A BASIS FOR REQUIRING THE USE OF GC/MS AND A TCDD
STANDARD TO IDENTIFY AND QUANTIFY TCDD (SEE METHOD 613, PROPOSED IN 40
CFR 136 ON DECEMBER 3, 1979, 44 FR AT 69526).
EPA IS RETAINING THE PROPOSED EXEMPTION FROM TESTING FOR ONE OTHER
TOXIC POLLUTANT: ASBESTOS. DUE TO THE LACK OF A SUITABLE TEST METHOD
FOR ASBESTOS, APPLICANTS ARE REQUIRED ONLY TO INDICATE WHETHER ASBESTOS
IS EXPECTED TO BE DISCHARGED AND, IF SO, TO DESCRIBE THE SOURCE OF THE
DISCHARGE AND TO SUBMIT ANY AVAILABLE ANALYTICAL DATA.
APPLICANTS WHOSE OUTFALLS WERE ANALYZED BY EPA DURING EPA'S INDUSTRY
SAMPLING PROGRAM MAY SUBMIT QUANTITATIVE DATA GENERATED BY EPA RATHER
THAN RETEST THEIR DISCHARGES, IF THE DATA IS LESS THAN THREE YEARS OLD
AND REMAINS REPRESENTATIVE OF THE PRESENT DISCHARGE. WHEN DATA HAS NOT
BEEN DEVELOPED BY EPA FOR A PARTICULAR POLLUTANT, THE EXEMPTION DOES NOT
APPLY TO THAT POLLUTANT. THE EXEMPTION SHOULD AFFECT AT LEAST 100
APPLICANTS. THE JUNE 14 PROPOSAL REQUIRED DATA TO BE NO MORE THAN TWO
YEARS OLD; COMMENTERS POINTED OUT THAT MORE THAN TWO YEARS WILL
GENERALLY HAVE ELAPSED SINCE EPA TESTED THE APPLICANT'S EFFLUENT. IN
RESPONSE, EPA HAS CHANGED THE TIME TO THREE YEARS. (THIS PERIOD IS
CONSISTENT WITH REGULATIONS REQUIRING PERMITTEES TO RETAIN MONITORING
RECORDS FOR THREE YEARS.)
FOR THE APPLICANTS WHO ARE REQUIRED TO TEST THEIR WASTE STREAMS, EPA
HAS REDUCED ITS SAMPLING REQUIREMENTS FROM THE PROPOSED 72-HOUR SINGLE
FLOW PROPORTIONAL COMPOSITE SAMPLE TO A 24-HOUR SAMPLE. THIS CHANGE WAS
ADOPTED IN RESPONSE TO COMMENTS AND AFTER RECONSIDERATION OF THE
RELATIVE COSTS AND BENEFITS OF USING 24-HOUR SAMPLES AND 72-HOUR
SAMPLES.
THE AGENCY HAS USED 24-, 48-, AND 72-HOUR SAMPLES IN ITS DATA
COLLECTION EFFORTS. ALTHOUGH A 72-HOUR SAMPLE MAY IN SOME INSTANCES BE
MORE REPRESENTATIVE OF A DISCHARGE THAN A 24-HOUR SAMPLE, OTHER FACTORS
SUCH AS THE RETENTION TIMES OF TREATMENT FACILITIES WOULD HAVE TO BE
CONSIDERED IN EACH INSTANCE TO DETERMINE THE MOST APPROPRIATE SAMPLING
TIME. FURTHERMORE, PRESERVING A 72-HOUR SAMPLE MAY INTRODUCE ERRORS
WHICH CANCEL THE BENEFITS OF THE LONGER TIME PERIOD.
ALTHOUGH THE INCREMENTAL BENEFITS OF USING A 72-HOUR SAMPLE INSTEAD
OF A 24-HOUR SAMPLE ARE QUESTIONABLE, THE COST SAVINGS OF USING A
24-HOUR SAMPLE ARE SUBSTANTIAL. THE COST OF SAMPLING A SINGLE OUTFALL
FOR 72 HOURS IS ESTIMATED TO BE $2,500, WHILE THE COST FOR 24 HOURS IS
$1,550; THUS A 24-HOUR SAMPLE RESULTS IN A SAVINGS OF $1,000 PER
OUTFALL. EPA CANNOT CONCLUDE THAT THE BENEFITS OF USING A 72-HOUR
SAMPLE JUSTIFY THE COSTS.
SEVERAL COMMENTERS OBJECTED TO THE LACK OF STANDARD EPA-APPROVED
SAMPLING METHODS. HOWEVER, AS DISCUSSED IN THE JUNE 14, 1979 PREAMBLE,
THE ART OF SAMPLING IS DEPENDENT ON EXPERIENCE AND OFTEN NOT AMENABLE TO
STANDARDIZATION OF METHODS. ACCORDINGLY, ONLY GENERAL GUIDANCE ON
SAMPLING IS GIVEN IN THE INSTRUCTIONS TO FORM 2C. SAMPLING SHOULD BE
SUPERVISED BY AN EXPERIENCED CONTRACTOR, AS ASSUMED BY EPA IN ITS
SAMPLING COST ESTIMATES (SECTION III.F.1 BELOW). (CERTAIN SAMPLING
ISSUES ARE DISCUSSED LATER IN THIS SECTION OF THE PREAMBLE.)
MANY COMMENTS WERE RECEIVED CONCERNING THE LACK OF PROMULGATED
METHODS FOR THE ANALYSIS OF THE ORGANIC TOXIC POLLUTANTS. EPA PROPOSED
METHODS FOR ANALYSIS OF THE ORGANIC TOXIC POLLUTANTS ON DECEMBER 3, 1979
(44 FR 69464). THE COMMENT PERIOD ON THE METHODS WILL BE CONSIDERED IN
THAT RULEMAKING PROCEEDING AND WILL NOT BE ADDRESSED HERE, EXCEPT TO
NOTE THAT THE ELIMINATION OF PROPOSED APPLICATION-BASED LIMIT
REQUIREMENTS HAS REDUCED THE IMPORTANCE OF HIGH PRECISION AND ACCURACY
IN DATA REPORTED IN NPDES APPLICATIONS.
BECAUSE THE COMMENT PERIOD FOR THE TEST METHODS FOR ORGANIC TOXIC
POLLUTANTS WAS EXTENDED, THE METHODS MAY NOT BE PROMULGATED IN 40 CFR
PART 136 BY THE TIME THAT SOME APPLICANTS TEST THEIR WASTE STREAMS. AS
A RESULT, EPA WILL ALLOW APPLICANTS TO USE ANY SUITABLE METHOD TO TEST
FOR ANY POLLUTANT FOR WHICH PART 136 METHODS DO NOT EXIST. TO ASSURE
QUALITY CONTROL, APPLICANTS WILL BE REQUIRED IN SUCH CASES TO DESCRIBE
THE METHOD USED, INCLUDING SAMPLE PRESERVATION TECHNIQUES. WHEN AN
INDEPENDENT LABORATORY CONDUCTS THE ANALYSIS, THE APPLICANT SHOULD
REQUEST THIS INFORMATION SO THAT IT MAY BE INCLUDED IN THE APPLICATION.
APPLICANTS ARE ENCOURAGED (BUT NOT REQUIRED) TO USE THE DECEMBER 3, 1979
PROPOSED METHODS FOR ORGANIC TOXIC POLLUTANTS UNTIL THE FINAL METHODS
ARE PROMULGATED IN PART 136.
B. OTHER POLLUTANTS. IN ADDITION TO THE TOXIC POLLUTANTS, ALL
APPLICANTS WILL BE REQUIRED TO REPORT OTHER POLLUTANTS IN ALL TYPES OF
DISCHARGES. SOME OF THESE POLLUTANTS ARE CONVENTIONAL AND
NONCONVENTIONAL (POLLUTANTS NOT LISTED AS TOXIC UNDER SECTION 307(A) OR
CONVENTION UNDER SECTION 304(B)) POLLUTANTS WHICH HAVE TRADITIONALLY
BEEN OF CONCERN IN THE NPDES PROGRAM, AND OTHERS ARE NONCONVENTIONAL
POLLUTANTS WHICH HAVE NOT GENERALLY BEEN REGULATED BEFORE, SUCH AS
CERTAIN HAZARDOUS SUBSTANCES.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 017 OF 74
COSTLE D M ADMINISTRATOR
EPA
113741
REGULATION
FEWER COMMENTERS ADDRESSED THESE REQUIREMENTS THAN THE REQUIREMENTS
FOR TESTING OF TOXIC POLLUTANTS, PERHAPS BECAUSE OF THE RELATIVELY
SMALLER COSTS.
THERE ARE THREE GROUPS OF POLLUTANTS, OTHER THAN TOXIC POLLUTANTS,
WITH DIFFERING REPORTING REQUIREMENTS:
(1) ALL APPLICANTS MUST TEST ALL THEIR DISCHARGES FOR THE FIRST GROUP
OF POLLUTANTS.
(2) ALL APPLICANTS MUST INDICATE WHETHER THEY KNOW OR HAVE REASON TO
BELIEVE THAT ANY OF A SECOND GROUP OF POLLUTANTS IS PRESENT IN ANY
DISCHARGE. THEY MUST THEN TEST FOR ANY OF THOSE POLLUTANTS KNOWN OR
BELIEVED TO BE DISCHARGED.
(3) ALL APPLICANTS MUST INDICATE WHETHER THEY KNOW OR HAVE REASON TO
BELIEVE THAT ANY OF A THIRD GROUP OF POLLUTANTS IS PRESENT IN ANY
DISCHARGE. THEY MUST THEN DESCRIBE THE SOURCE OF ANY POLLUTANT KNOWN OR
BELIEVED TO BE DISCHARGED AND PROVIDE ANY ANALYTICAL DATA WHICH THEY
POSSESS.
THESE REQUIREMENTS ARE DISCUSSED IMMEDIATELY BELOW.
(I) REQUIRED ANALYSES: SECTION 122.53(D)(7)(I) AND ITEM V-A. ALL
APPLICANTS MUST ANALYZE FOR THREE CONVENTIONAL POLLUTANTS (BOD, TSS, AND
PH) AND FOUR NONCONVENTIONAL POLLUTANTS (TEMPERATURE, COD, TOC, AND
AMMONIA).
CERTAIN MINOR REVISIONS HAVE BEEN MADE FROM THE PROPOSED
REQUIREMENTS.
FIRST, THE TOXIC POLLUTANTS CYANIDE AND TOTAL PHENOLS HAVE BEEN MOVED
FROM THIS LIST TO ITEM V-C. THUS APPLICANTS OTHER THAN PRIMARY
INDUSTRIES, WHICH MUST TEST THEIR PROCESS WASTEWATER OUTFALLS, ARE NOT
REQUIRED TO TEST FOR CYANIDE AND TOTAL PHENOLS UNLESS THEY EXPECT THEM
TO BE PRESENT. THIS CHANGE, ADVOCATED BY SEVERAL COMMENTERS, WAS MADE
BECAUSE THESE TWO POLLUTANTS ARE LESS LIKELY TO BE DISCHARGED BY
SECONDARY INDUSTRIES OR FROM NON-PROCESS WASTEWATER OUTFALLS THAN THE
OTHER PARAMETERS IN ITEM V-A.
SEDOND, THE REQUIRED MEASURE OF NITROGEN COMPOUNDS IN ITEM V-A HAS
BEEN CHANGED FROM TOTAL KJELDAHL NITROGEN (TKN) TO AMMONIA. AMMONIA IS
THE NITROGEN COMPOUND OF MOST CONCERN IN TERMS OF WATER QUALITY. EPA
HAS RECENTLY PROPOSED TO ADD AMMONIA TO THE SECTION 307(A) LIST OF TOXIC
POLLUTANTS (45 FR 803, JANUARY 3, 1980). TOTAL ORGANIC NITROGEN, WHICH
MEASURES NITROGEN COMPOUNDS, WHICH ARE GENERALLY NUTRIENTS, IS NOT
REQUIRED IN ITEM V-B. (TOTAL KJELDAHL NITROGEN IS THE SUM OF AMMONIA
NITROGEN AND TOTAL ORGANIC NITROGEN.)
SOME COMMENTERS REQUESTED DELETION OR SELECTED WAIVER OF THE UNIFORM,
TESTING REQUIREMENTS, THE DEVELOPMENT OF INDUSTRY-SPECIFIC REQUIREMENTS,
OR THE ADDITION OF POLLUTANTS (TOTAL OXYGEN DEMAND AND TOTAL ORGANIC
HALOGEN). EPA BELIEVES THAT THE REQUIREMENTS OF ITEM V-A ARE GENERALLY
APPROPRIATE FOR TWO REASONS. FIRST, THE PARAMETERS IN ITEM V-A ARE
COMMONLY FOUND IN MANY DIFFERENT TYPES OF DISCHARGES. SECOND, TAKEN
TOGETHER THEY ARE GENERALLY INDICATIVE OF THE NATURE OF A DISCHARGE. IN
ADDITION, THE TESTING COSTS ARE SMALL. HOWEVER, IN RESPONSE TO
COMMENTS, THE REGULATIONS HAVE BEEN MODIFIED TO PROVIDE THAT THE
DIRECTOR MAY WAIVE TESTING REQUIREMENTS, ON A CASE-BY-CASE BASIS, FOR
ONE OR MORE POLLUTANTS IN ITEM V-A. THIS SELECTED WAIVER IS REASONABLE
IN LIGHT OF THE SUBSTANTIAL EXPERIENCE WHICH PERMIT WRITERS HAVE IN
REGULATING THE PARAMETERS INCLUDED IN ITEM V-A.
(II) REQUIRED REPORTING OF PRESENCE OR ABSENCE AND, IF PRESENT,
REQUIRED ANALYSIS: SECTION 122.53(D)(7)(III) AND ITEM V-B. ALL
APPLICANTS MUST INDICATE EXPECTED PRESENCE OR ABSENCE OF DISCHARGES OF 2
CONVENTIONAL POLLUTANTS (FECAL COLIFORM AND OIL AND GREASE) AND 23
NONCONVENTIONAL POLLUTANTS AND REPORT AT LEAST ONE ANALYSIS FOR EACH
POLLUTANT EXPECTED PRESENT. THESE POLLUTANTS EITHER ARE OF LESS
SIGNIFICANCE OR ARE LESS LIKELY TO BE FOUND THAN TOXIC POLLUTANTS OR THE
POLLUTANTS IN ITEM V-A, FOR WHICH TESTING IS AUTOMATICALLY REQUIRED.
COMMENTERS ON THE PROPOSAL MADE MANY OF THE SAME GENERAL CRITICISMS AND
SUGGESTIONS AS ON ITEM V-A. EPA HAS NOT MADE CHANGES IN RESPONSE TO
THESE GENERAL COMMENTS (ALTHOUGH SOME SPECIFIC COMMENTS WERE ADOPTED, AS
DISCUSSED BELOW), PARTICULARLY BECAUSE THE REQUIRED LEVEL OF REPORTING
PRESENTS MINIMAL BURDENS; ACTUAL TESTING IS REQUIRED ONLY WHERE THE
APPLICANT KNOWS OR HAS REASON TO BELIEVE THAT IT IS DISCHARGING A
POLLUTANT. FURTHERMORE, TESTING COSTS ARE RELATIVELY INEXPENSIVE. AS
NOTED EARLIER IN THIS PREAMBLE, PERMIT WRITERS NEED TO KNOW WHAT
POLLUTANTS ARE PRESENT IN AN EFFLUENT TO DETERMINE APPROPRIATE PERMIT
LIMITS IN THE ABSENCE OF APPLICABLE EFFLUENT GUIDELINES. THEREFORE, EPA
DOES NOT FEEL IT IS APPROPRIATE TO MAKE THE REQUIREMENTS OF ITEM V-B ANY
LESS STRINGENT.
ONE SIGNIFICANT CHANGE HAS BEEN MADE FROM THE PROPOSAL, WHICH ALLOWED
APPLICANTS TO ESTIMATE THE LEVELS OF POLLUTANTS KNOWN OR BELIEVED TO BE
DISCHARGED. THE FINAL REGULATIONS AND ITEM V-B REQUIRE APPLICANTS TO
TEST FOR ALL SUCH POLLUTANTS. THIS CHANGE WAS MADE BECAUSE EPA FELT
THAT THE INCREASED RELIABILITY OF A TEST OVER AN ESTIMATE JUSTIFIES THE
INCREASED COST IN THOSE CASES WHERE ONE OR MORE OF THESE POLLUTANTS IS
EXPECTED TO BE DISCHARGED. THE CHANGE ALSO RESPONDS TO INDUSTRY
COMMENTS POINTING OUT THAT PROVIDING A QUANTITATIVE ESTIMATE IS
TECHNICALLY DIFFICULT AND TO ONE COMMENT SUGGESTING THAT EPA REQUIRE
ANALYSIS OF EXPECTED POLLUTANTS.
OTHER CHANGES HAVE BEEN MADE IN RESPONSE TO SUGGESTIONS BY
COMMENTERS. THE PESTICIDES REQUIRED TO BE REPORTED IN PROPOSED ITEM V-C
ARE NOW LISTED SPECIFICALLY IN ITEM V-D (DISCUSSED BELOW).
RADIOACTIVITY HAS BEEN SUBDIVIDED INTO ALPHA, BETA, RADIUM AND RADIUM
226. NITRATE AND NITRITE HAVE BEEN COMBINED AS A SINGLE POLLUTANT, IN
ACCORDANCE WITH THE USUAL PRACTICE OF MEASURING THEIR SUM. FINALLY, THE
FORM'S INSTRUCTIONS AND THE REGULATIONS SPECIFY THAT APPLICANTS NEED NOT
TEST FOR POLLUTANTS EXPECTED TO BE PRESENT SOLELY AS A RESULT OF THEIR
PRESENCE IN INTAKE WATER, BUT NEED ONLY INDICATE THAT THEY ARE EXPECTED
TO BE PRESENT.
EPA REJECTED CERTAIN OTHER SUGGESTIONS. EPA HAS RETAINED THE USE OF
TOTAL RESIDUAL CHLORINE (RATHER THAN THE SUGGESTED FREE AVAILABLE
CHLORINE) BECAUSE IT MEASURES BOTH FREE AVAILABLE CHLORINE AND
CHLORINATED AMINES, BECAUSE MOST EXISTING TOXICITY DATA IS IN TERMS OF
RESIDUAL CHLORINE, AND BECAUSE EPA EXPECTS TO USE TOTAL RESIDUAL
CHLORINE AS A POLLUTANT MEASURE IN FORTHCOMING NEW EFFLUENT GUIDELINES
FOR THE STEAM ELECTRIC POWER GENERATING INDUSTRY. ALUMINUM HAS BEEN
RETAINED, DESPITE ONE COMMENTER'S ARGUMENT THAT ALUMINUM HAS LOW
TOXICITY AND SOLUBILITY, BECAUSE ALUMINUM REMAINS OF SUFFICIENT CONCERN
TO REQUIRE LIMITATIONS IN SOME CASES (SEE, E.G., 40 CFR 421.32 AND
404.32).
III) REQUIRED REPORTING OF PRESENCE OR ABSENCE OF ASBESTOS AND
HAZARDOUS SUBSTANCES: SECTION 122.53(D)(7)(IV) AND ITEM V-D. ALL
APPLICANTS MUST INDICATE EXPECTED PRESENCE OR ABSENCE, AND BRIEFLY
DESCRIBE THE SOURCE (OR LEVELS, IF DATA IS AVAILABLE) IF PRESENT, OF
DISCHARGES OF POLLUTANTS LISTED IN ITEM V-D. THESE POLLUTANTS INCLUDE
ONE TOXIC POLLUTANT (ASBESTOS) AND 79 NONCONVENTIONAL POLLUTANTS WHICH
HAVE BEEN DESIGNATED AS HAZARDOUS SUBSTANCES UNDER SECTION 311 OF THE
CLEAN WATER ACT BUT NOT LISTED AS TOXIC POLLUTANTS AND REPORTABLE IN
ITEM V-C AND WHICH RETAIN THEIR UNDISSOCIATED FORM IN WATER.
THE PROPOSED REQUIREMENT FOR ASBESTOS WAS CONTROVERSIAL AND HAS BEEN
CHANGED. APPLICANTS MUST NOW STATE BRIEFLY THE SOURCE OF ANY DISCHARGE
OF ASBESTOS INSTEAD OF TESTING OR ESTIMATING THE LEVEL OF DISCHARGE.
HOWEVER, IF THEY HAVE ANALYTICAL DATA ON ANY SUCH DISCHARGES, APPLICANTS
MUST REPORT THEM.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 018 OF 74
COSTLE D M ADMINISTRATOR
EPA
113742
REGULATION
PROPOSED ITEM V-C REQUIRED APPLICANTS TO ESTIMATE OR TEST FOR CERTAIN
PESTICIDES FOR WHICH EPA HAD DEVELOPED (INTERIM) TEST METHODS. IN
RESPONSE TO COMMENTS, EPA HAS NOW LISTED SPECIFICALLY (IN ITEM V-D) EACH
PESTICIDE REQUIRED TO BE REPORTED. EPA HAS DECIDED TO LIST ONLY THOSE
PESTICIDES WHICH HAVE BEEN DESIGNATED AS HAZARDOUS SUBSTANCES. THESE
PESTICIDES ARE CONTAINED IN THE LIST OF 79 HAZARDOUS SUBSTANCES REQUIRED
BY ITEM V-D. EPA FEELS THAT FOCUSING ATTENTION ON PESTICIDES FORMALLY
RECOGNIZED AS HAZARDOUS IN WATER IS A REALISTIC APPROACH AT THIS TIME.
REPORTING REQUIREMENTS FOR THE HAZARDOUS SUBSTANCES (OTHER THAN THOSE
ALSO LISTED AS TOXIC POLLUTANTS) EVOLVED OUT OF 1978 AMENDMENTS TO THE
CLEAN WATER ACT, WHICH CHANGED THE RELATIONSHIP BETWEEN THE NPDES
PROGRAM AND SECTION 311 OF CWA. PROPOSED SECTION 122.64(D)(19) AND ITEM
IX OF THE DRAFT APPLICATION FORM PROVIDED TO PERMIT APPLICANTS THE
OPTION OF SUBMITTING INFORMATION ON DISCHARGES OF HAZARDOUS SUBSTANCES
DESIGNATED UNDER SECTION 311 OF CWA TO OBTAIN EXCLUSION OF THOSE
DISCHARGES FROM THE VARIOUS REQUIREMENTS OF SECTION 311. THE PROPOSAL
REFLECTED PROPOSED 40 CFR 117.12 (44 FR 10271, FEBRARY 16, 1979) IN
WHICH EPA TENTATIVELY INTERPRETED THE 1978 AMENDMENTS TO SECTION
311(A)(2) TO GRANT EXCLUSION FOR CONTINUOUS OR INTERMITTENT DISCHARGES
WHICH ARE CAUSED BY EVENTS OCCURRING WITHIN THE SCOPE OF RELEVANT
OEPRATING OR TREATMENT SYSTEMS ONLY IF CERTAIN INFORMATION IDENTIFYING
THOSE DISCHARGES IS SUBMITTED TO THE PERMITTING AUTHORITY. IN THE FINAL
REGULATIONS (40 CFR 117.12, 44 FR 50766, AUGUST 29, 1979), EPA REVISED
SECTION 117.12 TO ACKNOWLEDGE THAT SUCH DISCHARGES BY PERMITTEES OR
PERMIT APPLICANTS ARE EXEMPT FROM SECTION 311 EVEN WHEN INFORMATION ON
THE DISCHARGES IS NOT SUBMITTED TO THE NPDES PERMITTING AUTHORITY.
CONCURRENTLY WITH PROMULGATING 40 CFR 117.12 ON AUGUST 29, 1979, EPA
PUBLISHED A NOTICE (44 FR 50780) MODIFYING THE JUNE 14 PROPOSED
APPLICATION REQUIREMENTS BY ADDING A REQUIREMENT CONCERNING THE
REPORTING OF CERTAIN DISCHARGES OF HAZARDOUS SUBSTANCES IN NPDES
APPLICATIONS. THIS ACTION WAS TAKEN IN RECOGNITION OF CONGRESSIONAL
INTENT THAT CONTINUOUS OR ANTICIPATED INTERMITTENT DISCHARGES OF
HAZARDOUS SUBSTANCES ARE APPROPRIATELY REGULATED UNDER THE NPDES PROGRAM
RATHER THAN UNDER SECTION 311. THE NEW JUNE 14 PROPOSAL'S REQUIREMENT
THAT HAZARDOUS SUBSTANCES WHICH ARE ON THE SECTION 307(A) TOXIC
POLLUTANT LIST MUST BE REPORTED) AND OF SEVEN DISSOCIATION PRODUCTS OF
HAZARDOUS SUBSTANCES. THE PROPOSAL REQUIRED EACH APPLICANT TO REPORT
ANY OF THESE POLLUTANTS WHICH IT KNOWS OR HAS REASON TO BELIEVE IT IS
DISCHARGING. IN ADDITION, ALL APPLICANTS IN 36 INDUSTRIES WERE REQUIRED
TO TEST FOR VANADIUM.
ESTIMATES WERE PERMITTED EXCEPT FOR 16 SUBSTANCES (13 PESTICIDES,
2 CHLORINATED HYDROCARBONS AND VANADIUM) FOR WHICH OFFICIAL EPA
TEST METHODS HAD ALREADY BEEN DEVELOPED; ACTUAL TESTING WAS
REQUIRED FOR THESE IF EXPECTED PRESENT.
COMMENTERS GENERALLY SUPPORTED THE APPROACH OF REQUIRING REPORTING OF
A HAZARDOUS SUBSTANCE DISCHARGE ONLY WHERE THE APPLICANT KNOWS OR HAS
REASON TO BELIEVE IT IS DISCHARGING THE SUBSTANCE. THIS IS A LESS
STRINGENT APPROACH THAN USED FOR TOXIC POLLUTANTS FOR SEVERAL REASONS.
FIRST, TOXIC POLLUTANTS ARE REQUIRED TO RECEIVE THE CLOSEST POSSIBLE
SCRUTINY IN THE NPDES PROGRAM UNDER THE 1977 AMENDMENTS TO CWA; THUS
THEY MAY REASONABLY BE DISTINGUISHED FROM HAZARDOUS SUBSTANCES IN
FORMULATING APPLICATION RCQUIREMENTS AT THIS TIME. SECOND, TEST METHODS
ARE LACKING FOR MOST OF THE HAZARDOUS SUBSTANCES LISTED IN THE AUGUST 29
PROPOSAL. THIRD, MOST OF THE HAZARDOUS SUBSTANCES FOR WHICH INTERIM
TEST METHODS EXIST ARE HIGHLY UNLIKELY TO BE DISCHARGED EXCEPT BY A FEW
INDUSTRIES (MOST NOTABLY, THE PESTICIDES INDUSTRY). THUS A MORE RELAXED
UNIFORM REPORTING REQUIREMENT FOR HAZARDOUS SUBSTANCES AMES SENSE.
SEVERAL COMMENTERS CONTENDED THAT THE TEST METHODS FOR 14 OF THE 16
HAZARDOUS SUBSTANCES FOR WHICH EPA CLAIMS TO HAVE PUBLISHED TEST METHODS
HAVE NOT BEEN PROPERLY PROMULGATED IN 40 CFR 136 UNDER SECTION 304 OF
CWA AND THAT EPA IS THEREFORE BARRED FROM REQUIRING ANY SUCH ANALYSIS.
THEY ARGUED THAT THE PUBLISHED METHODS HAD NOT BEEN PROPERLY
INCORPORATED BY REFERENCE IN PART 136. EPA BELIEVES IT HAS LEGAL
AUTHORITY TO REQUIRE TESTING FOR THOSE SUBSTANCES, WHETHER BY USE OF THE
PART 136 METHODS OR BY ALLOWING APPLICANTS TO CHOSE ANY APPROPRIATE
METHOD. HOWEVER, COMMENTERS FURTHER ARGUED THAT THE METHODS FOR
PESTICIDES HAVE BEEN LESS WIDELY TESTED THAN THE METHODS FOR TOXIC
POLLUTANTS. EPA AGREES WITH THOSE COMMENTERS.
IN RESPONSE TO THE ABOVE COMMENTS, THE PROPOSED REQUIREMENTS HAVE
BEEN MODIFIED. APPLICANTS ARE NOW REQUIRED ONLY TO INDICATE THE SOURCE
OF THE DISCHARGES FOR ALL HAZARDOUS SUBSTANCES UNLESS THEY HAVE
ANALYTICAL DATA. OF COURSE, AS ALWAYS, THE PERMIT WRITER MAY REQUIRE
FURTHER TESTING IF NECESSARY. EPA FEELS THIS MORE INDIVIDUALIZED
APPROACH MAKES SENSE AT THIS STAGE OF THE NPDES PROGRAM, SINCE LESS IS
KNOWN ABOUT THE ANALYSIS AND TREATABILITY OF MANY OF THESE POLLUTANTS IN
DISCHARGES THAN IS KNOWN FOR OTHER POLLUTANTS TO BE REGULATED IN THE
NEXT ROUND OF PERMIT ISSUANCE.
IN RESPONSE TO EPA'S REQUEST FOR COMMENTS ON THE LIST OF HAZARDOUS
SUBSTANCES FOR WHICH APPLICATION REPORTING WAS PROPOSED, ONE COMMENTER
SUGGESTED THAT VANADIUM AND URANIUM BE OMITTED, AND ONE COMMENTER
SUGGESTED THAT DICAMBA (A PESTICIDE) BE OMITTED. EPA WAS NOT PERSUADED
BY THESE COMMENTS. ALL OF THESE POLLUTANTS HAVE BEEN DESIGNATED BY EPA
AS HAZARDOUS SUBSTANCES, WHICH ARE DESIGNATED TO A LARGE EXTENT ON THE
BASIS OF TOXICITY CRITERIA. CERTAIN HAZARDOUS SUBSTANCES, SUCH AS
ACETIC ACID, ARE OMITTED FROM REPORTING REQUIREMENTS BECAUSE THEY ARE
TOXIC ONLY IN CASES OF SPILLS CAUSING SHOCK EFFECTS; THEY ARE NOT TOXIC
AT THE CONCENTRATIONS GENERALLY FOUND IN CONTINOUS DISCHARGES. HOWEVER,
VANADIUM URANIUM AND DICAMBA ARE OF SUFFICIENT CONCERN IN CONTINOUS
DISCHARGES TO REQUIRE REPORTING. THE BURDEN OF SUCH REPORTING IS
MINIMAL, SINCH THE REPORTING IS BASED ON THE INEXPENSIVE ESTIMATION OF
PRESENCE OR ABSENCE RATHER THAN ON MORE EXPENSIVE TESTING.
C. GENERAL CONCERNS IN SAMPLING, ANALYSIS AND REPORTING OF TESTING
RESULTS. SEVERAL ADDITIONAL ASPECTS OF THE SAMPLING OF WASTE STREAMS
AND THE REPORTING OF ANALYTICAL RESULTS WERE OF CONCERN TO COMMENTERS
AND ARE DISCUSSED BELOW.
(I) SAMPLING REQUIREMENTS. THE INSTRUCTIONS TO ITEM V OF FORM
2C INCLUDE SOME GENERAL REQUIREMENTS ABOUT WHEN SAMPLES SHOULD BE
(NOT ALL ASPECTS OF THESE INSTRUCTIONS ARE SET FORTH IN THE
REGULATIONS.) THE PROPOSED INSTRUCTIONS INCLUDED THE STATEMENT
THAT SAMPLES SHOULD BE REPRESENTATIVE OF THE PREVIOUS TWELVE MONTHS
OF OPERATION. SEVERAL COMMENTERS POINTED OUT THAT THIS REQUIREMENT
WAS INCOMPATIBLE WITH THE MINIMUM REQUIREMENT OF TESTING ONE
SAMPLE. BASED ON THE COMMENTS, THIS STATEMENT HAS BEEN DELETED
FROM THE FINAL INSTRUCTIONS. THE INSTRUCTIONS RETAIN THE STATEMENT
THAT APPLICANTS SHOULD CHOOSE SAMPLING TIMES WHICH ARE REPRESENTATIV
OF THEIR NORMAL OPERATIONS. IF OPERATIONS ARE SO VARIABLE THAT
NO REPRESENTATIVE TIME CAN BE SELECTED, AS CLAIMED BY A FEW
COMMENTERS, APPLICANTS MAY DESCRIBE IN ITEM VI OF FORM 2C ANY TYPES
OF DISCHARGES WHICH DIFFER FROM THOSE TESTED (SEE SECTION III.D.3.E
OF THIS PREAMBLE).
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 019 OF 74
COSTLE D M ADMINISTRATOR
EPA
113743
REGULATION
TWO COMMENTERS OBJECTED TO THE REQUIREMENT THAT ALL COMPOSITE SAMPLES
BE FLOW-PROPORTIONAL AND SUGGESTED THAT TIME-PROPORTIONAL SAMPLES BE
ALLOWED WHEN RETENTION TIMES ARE LONG ENOUGH. THIS SUGGESTION HAS NOT
BEEN ADOPTED BECAUSE FLOW PROPORTIONAL SAMPLES GIVE A MORE ACCURATE
MEASUREMENT OF THE TOTAL MASS DISCHARGED WHEN FLOWS ARE NOT CONSTANT.
WHEN FLOWS ARE CONSTANT, THERE IS NO DIFFERENCE BETWEEN
FLOW-PROPORTIONAL AND TIME-PROPORTIONAL SAMPLES. ONE OF THESE
COMMENTERS ALSO REQUESTED CLARIFICATION OF THE DEFINITIONS OF GRAB AND
COMPOSITE SAMPLES; THIS HAS BEEN DONE.
SEVERAL COMMENTERS POINTED OUT THAT THE PROPOSED REQUIREMENT
THAT ALL SAMPLES BE PRESERVED BY COOLING TO 4 DEGREES CELSIUS WAS
UNNECESSARY FOR SOME POLLUTANTS, PARTICULARLY METALS. THIS
REQUIREMENT HAS BEEN DELETED FROM THE INSTRUCTIONS, BUT APPLICANTS
MUST COMPLY WITH SPECIFIC REQUIREMENTS FOR INDIVIDUAL POLLUTANTS
COVERING SAMPLING CONTAINERS, HOLDING TIMES, AND PRESERVATION
PROCEDURES WHEN THEY ARE PROMULGATED (PROPOSED AT 44 FR 69464,
DECEMBER 3, 1979). UNTIL THESE REQUIREMENTS ARE PROMULGATED,
APPLICANTS MUST DESCRIBE THE HOLDING TIMES AND PRESERVATION
PROCEDURES WHICH THEY USE.
(II) REPORTING OF TESTING RESULTS. (A) DETECTION LIMITS. THE
PROPOSAL REQUIRED APPLICANTS TO REPORT DETECTION LIMITS FOR ALL
POLLUTANTS IN DRAFT ITEM V-C FOUND TO BE NOT PRESENT. THIS
REQUIREMENT HAS BEEN DELETED BECAUSE THE PROPOSED APPLICATION-BASED
LIMITS HAVE BEEN DELETED AND THE PROMULGATED APPLICATION-BASED
NOTIFICATION REQUIREMENTS OF 122.61(A) ARE NOT BASED UPON MULTIPLES
OF DETECTION LIMITS. THEREFORE, THE COMMENTS WHICH WERE RECEIVED
ON REPORTING OF DETECTION LIMITS ARE NO LONGER RELEVANT, AND THE
TABLE IN THE PROPOSED INSTRUCTIONS SETTING FORTH DETECTION LIMITS
HAS BEEN DELETED.
(B) MISCELLANEOUS ISSUES. ONE COMMENTER POINTED OUT THAT REPORTING
OF FLOW WAS REQUIRED IN BOTH DRAFT ITEMS V-A AND V-B. THE PURPOSE WAS
TO HAVE THE APPLICANT REPORT THE FLOW ONCE TO CORRESPOND TO THE
CONCENTRATION LEVELS REPORTED FOR THE TOXIC POLLUTANTS, AND A SECOND
TIME TO INDICATE THE AVERAGE AND MAXIMUM FLOW OVER THE COURSE OF ONE
YEAR. FLOW IS NOW REPORTED ONLY ONCE BECAUSE OF REORGANIZATION OF THE
FORM, AS DESCRIBED IN THE NEXT PARAGRAPH.
EPA HAS ADOPTED CERTAIN SUGGESTIONS BY ENVIRONMENTAL GROUPS
ADVOCATING MORE DETAILED PRESENTATION OF ANALYTICAL RESULTS. BOTH
CONCENTRATION AND MASS OF POLLUTANT LOADINGS MUST BE REPORTED IN THE
APPLICATION. IN ADDITION, POLLUTANT LOADINGS MUST NOW BE REPORTED AS
MAXIMUM DAILY VALUE AND AS MAXIMUM 30-DAY VALUE AND LONG-TERM AVERAGE
VALUE, IF AVAILABLE. THIS CHANGE DOES NOT REQUIRE ADDITIONAL
CALCULATIONS. "MAXIMUM DAILY VALUE", "MAXIMUM 30-DAY VALUE" AND
"LONG-TERM AVERAGE VALUE" ARE EXPLAINED IN THE INSTRUCTIONS TO FORM 2C.
REQUIREMENTS FOR TYPES OF SAMPLES (GRAB OR COMPOSITE) ARE NOW SPECIFIED
IN THE INSTRUCTIONS; THEREFORE, THEY NO LONGER HAVE TO BE SPECIFIED IN
ITEM V OF THE FORM.
THE APPLICATION FORM DOES NOT REQUIRE APPLICANTS TO ANALYZE
INTAKE WATER, BUT THEY MAY DO SO IF THEY WISH TO BE ELIGIBLE FOR
NET LIMITATIONS UNDER SECTION 122.63(H).
IN RESPONSE TO A COMMENT, A PROVISION HAS BEEN ADDED TO THE FINAL
REGULATION ALLOWING THE DIRECTOR TO LIMIT TESTING OF SUBSTANTIALLY
IDENTICAL OUTFALLS TO A SINGLE OUTFALL. THE APPLICANT MUST STATE IN THE
APPLICATION WHICH OUTFALLS WERE ACTUALLY TESTED AND WHICH WERE NOT AND
EXPLAIN WHY THE OUTFALLS ARE CONSIDERED SUBSTANTIALLY IDENTICAL.
POLLUTANTS REQUIRED TO BE REPORTED IN ITEM V ARE LISTED ON SEPARATE
SHEETS AT THE END OF FORM 2C, NUMBERED V-1 TO V-9. IN ORDER TO PROVIDE
APPLICANTS WITH SOME FLEXIBILITY IN REPORTING, THE INSTRUCTIONS STATE
THAT APPLICANTS MAY SUBMIT SOME OR ALL OF THE REQUIRED INFORMATION ON
SEPARATE SHEETS INSTEAD OF FILING OUT PAGES V-1 TO V-9, IF THEY PROVIDE
ALL THE REQUIRED INFORMATION IN THE SAME FORMAT (TO ALLOW EPA TO
COMPUTERIZE THE DATA). FOR EXAMPLE, APPLICANTS (OR LABORATORIES
CONDUCTING ANALYSES FOR APPLICANTS) MAY PROGRAM GC/MS DATA SYSTEMS TO
PRINT THE DATA IN THE REQUIRED FORMAT, ELIMINATING THE NEED TO COPY THE
INFORMATION ONTO A FORM.
D. RESPONSE TO COMMENTS ADVOCATING BIOLOGICAL MONITORING FOR NPDES
PERMIT APPLICATIONS. THE FINAL REGULATIONS, LIKE THE PROPOSED
REGULATIONS, DO NOT REQUIRE BIOMONITORING OF EFFLUENTS AS PART OF THE
APPLICATION PROCESS. HOWEVER, AS DISCUSSED IN THE PREAMBLE TO THE
PROPOSAL AT 44 FR 34400, THE PERMITTING AUTHORITY IS ENCOURAGED TO
REQUIRE TOXICITY TESTING WHEN THE INFORMATION IS NEEDED TO ASSESS THE
TOXICITY OF A PRESENT DISCHARGE. TOXICITY INFORMATION MAY BE NECESSARY,
FOR EXAMPLE, (1) WHEN BAT IS BASICALLY EQUIVALENT TO BPT (THAT IS, NO
TREATMENT BEYOND BPT IS NECESSARY TO CONTROL 307(A) TOXIC POLLUTANTS);
(2) WHEN GUIDELINES FOR BAT ARE ABSENT AND PERMIT LIMITS WILL BE
CASE-BY-CASE; OR (3) WHEN POLLUTANTS WILL NOT BE CHEMICALLY ANALYZED
(E.G., SECONDARY INDUSTRIES OR NON-PROCESS WASTEWATER) BUT TOXICITY IS
SUSPECTED. THE RESULTS OF SUCH TESTS WOULD THEN ALLOW THE PERMIT WRITER
TO DECIDE WHETHER TO REQUIRE A PROCESS EVALUATION TO DETERMINE WHETHER
ADDITIONAL TREATMENT IS REQUIRED. THE OPTION OF USING TOXICITY TESTS
ALSO PROVIDES THE PERMITTING AUTHORITY WITH THE FLEXIBILITY TO RESPOND
TO SPECIALIZED CASES WHEN THE SOURCE OF TOXICITY IS SOMETHING OTHER THAN
THE LISTED TOXIC POLLUTANTS. PERMITTING AUTHORITIES HAVE THE AUTHORITY
TO REQUIRE ACUTE BIOLOGICAL TOXICITY TESTING WHEN TOXIC CONDITIONS HAVE
OCCURRED IN THE PAST, WHEN TOXICITY INFORMATION IS NEEDED FOR
ESTABLISHING PRIORITIES FOR PERMIT ISSUANCE, OR WHEN REPORTED EFFLUENT
DATA IS INSUFFICIENT. THIS AUTHORITY IS CLEARLY PROVIDED IN SECTION 308
OF CWA, WHICH LISTS BIOLOGICAL MONITORING AS AN AVAILABLE METHOD FOR THE
PURPOSE OF DEVELOPING PERMIT LIMITATIONS.
A SIGNIFICANT NUMBER OF COMMENTS WERE RECEIVED, PARTICULARLY FROM
PRIVATE CITIZENS AND PUBLIC INTEREST GROUPS, STRONGLY SUPPORTING
TOXICITY TESTING AS A MANDATORY PERMIT APPLICATION REQUIREMENT. AT
A MINIMUM, MOST OF THESE COMMENTERS WANTED ALL GROUP I INDUSTRIES
(DEFINED IN THE PROPOSAL AS THE PRIMARY INDUSTRIES PLUS THE
FERROALLOYS AND ASBESTOS MANUFACTURING CATEGORIES) TO PERFORM A
TWO-TIERED TESTING PROGRAM CONSISTING OF: (1) A 96-HOUR, ACUTE
STATIC LC50 TOXICITY TEST ON SEVERAL APPROPRIATE SPECIES; AND (2)
PERSISTENCY TESTING BY SEDIMENT UPTAKE OF PRIORITY POLLUTANTS OR
BIOACCUMULATION TEST OF ANIMAL TISSUES. COMMENTERS ARGUED THAT SUCH
A TESTING PROGRAM WOULD NOT BE AN OVERLY-RESTRICTIVE BURDEN ON
GROUP I INDUSTRIES. EPA DISAGREES AND FEELS THAT THESE SUGGESTED
REQUIREMENTS ARE INAPPROPRIATE AT THIS TIME. TOXICITY TESTING IS NO
BEING REQUIRED OF ALL APPLICANTS BECAUSE, IN MANY CASES, ADDITIONAL
OR MODIFIED TREATMENT WILL BE REQUIRED BY BAT LIMITS FOR SPECIFIC
POLLUTANTS. IN THESE SITUATIONS, THE RESULTS OF TOXICITY TESTING
MAY NOT BE RELEVANT BECAUSE SPECIFIC POLLUTANTS WHICH ARE SOURCES OF
POSSIBLE TOXICITY WILL BE IDENTIFIED CHEMICALLY AND PERMITTEES
WILL BE REQUIRED TO REDUCE THE CONCENTRATION OF THESE POLLUTANTS.
WHEN SPECIFIC TOXIC POLLUTANTS ARE IDENTIFIED IN THE PERMIT
APPLICATION, IT MAY BE ASSUMED THAT THE EFFLUENT HAS ACUTE OR CHRONI
TOXICITY, WHICH WOULD MAKE BIOMONITORING DUPLICATIVE. EPA BELIEVES,
THEREFORE, THAT BIOMONITORING CURRENTLY SHOULD BE REQUIRED ON A
CASE-BY-CASE BASIS BY THE PERMITTING AUTHORITY IN SITUATIONS SUCH
AS THOSE IDENTIFIED ABOVE, WHERE THE INFORMATION IS NEEDED TO MAKE
A PERMITTING DECISION. HOWEVER, AFTER INSTALLATION OF BAT TREATMENT
BIOMONITORING WILL PLAY AN INCREASINGLY IMPORTANT ROLE IN THE NPDES
PROGRAM.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 020 OF 74
COSTLE D M ADMINISTRATOR
EPA
113744
REGULATION
SEVERAL COMMENTERS ARGUED THAT EPA CANNOT REQUIRE BIOMONITORING FOR
POLLUTANTS OTHER THAN THOSE REGULATED BY A DISCHARGER'S NPDES PERMIT,
APPARENTLY MISUNDERSTANDING THAT BIOMONITORING DOES NOT TEST FOR
SPECIFIC POLLUTANTS. ONE OF THE ADVANTAGES OF BIOMONITORING IS THAT
TOTAL TOXICITY IS MEASURE REGARDLESS OF THE INTERACTIONS OF THE
CONSTITUENTS CONTRIBUTING TO THAT TOXICITY. THEREFORE, TOXICITY TESTS
MEASURE THE EFFECTS OF CHEMICAL MIXTURES WHICH CANNOT OTHERWISE BE
LIMITED IN A PERMIT.
ONE COMMENTER ARQUED THAT THE AGENCY, NOT THE REGULATED INDUSTRY,
SHOULD BEAR THE BURDEN OF DATA GATHERING UNRELATED TO DETERMINING PERMIT
COMPLIANCE. EPA DISAGREES. SECTION 308 OF CWA REQUIRES THE DISCHARGER,
NOT THE PERMITTING AUTHORITY, TO PROVIDE ANY INFORMATION NECESSARY TO
DETERMINE PERMIT LIMITS.
SOME COMMENTERS ARGUED THAT THE COST OF TOXICITY TESTING IS
PROHIBITIVE. ALTHOUGH TESTING FOR CHRONIC TOXICITY AND BIOACCUMULATION
CAN BE EXPENSIVE, THE COST OF ACUTE TOXICITY TESTING IS NOT PROHIBITIVE.
MANY INDUSTRIES HAVE IN-HOUSE TESTING CAPABILITY AND MANY COMPANIES
HAVE ALREADY GENERATED TOXICITY INFORMATION ON THEIR DISCHARGES. IN
ADDITION, A SUBSTANTIAL NUNBER OF LABORATORIES, INCLUDING MANY
ENVIRONMENTAL ENGINEERING FIRMS, PERFORM TOXICITY TESTING ON A CONTRACT
BASIS AT COMPETITIVE PRICES. THE FOLLOWING TABLE REPRESENTS TYPICAL
PRESENT-DAY COSTS OF SEVERAL TYPES OF ACUTE TOXICITY TESTS:
FIGURE OMITTED.
OTHER COMMENTERS SUGGESTED THAT NO BIOMONITORING BE REQUIRED UNTIL
EPA UPBLISHES BIOMONITORING PROTOCOLS. SEVERAL COMMENTS WERE DIRECTED
AT THE LACK OF STANDARDIZED TEST METHODS, PARTICULARLY FOR CHRONIC
TOXICITY TESTING. STANDARDIZED TEST METHODS FOR ACUTE TOXICITY TESTING
ARE AVAILABLE (SEE METHODS FOR MEASURING THE ACUTE TOXICITY OF EFFLUENTS
TO AQUATIC ORGANISMS, EPA-600/4-78-012) AND EPA WILL SOON PROPOSE FORMAL
RULES UNDER SECTION 304(H) OF CWA TO INCLUDE THESE ACUTE TOXICITY TEST
METHODS IN 40 CFR PART 136. HOWEVER, TEST METHODS FOR CHRONIC TOXICITY
AND BIOACCUMULATION ARE LESS STANDARDIZED. IN PARTICULAR, TESTS USED
FOR THE ANALYSIS OF CARCINOGENIC, MUTAGENIC, AND TEROTOGENIC PROPERTIES
OF POLLUTANTS ARE STILL UNDERGOING DEVELOPMENT AND EVALUATION.
THEREFORE, TEST RESULTS ON THESE MEASURES SHOULD BE CAREFULLY EVALUATED
BEFORE THEY ARE USED IN THE NPDES PERMIT PROGRAM.
ALTHOUGH BIOLOGICAL TOXICITY TESTING WILL BE USED ONLY ON A
CASE-BY-CASE BASIS DURING THE NEXT ROUND OF PERMIT ISSUANCE, EPA
BELIEVES THAT BIOLOGICAL TESTING MUST PLAY A MAJOR ROLE IN FUTURE TOXIC
POLLUTANT CONTROL STRATEGY. THEREFORE, EPA WILL PROPOSE RULES IN THE
NEAR FUTURE TO REQUIRE ALL DISCHARGERS IN SELECTED SUBCATEGORIES TO
EVALUATE THEIR EFFLUENTS AFTER BAT TREATMENT PROCESSES ARE IN OPERATION
USING A STANDARD BIOLOGICAL SCREENING PROTOCOL. THE SCREENING PROTOCOL
WILL BE RELATIVELY INEXPENSIVE AND WILL IDENTIFY EFFLUENTS STILL
CONTAINING SIGNIFICANT TOXICITY. FURTHER TESTING AND PREPARATION OF A
TOXICITY REDUCTION PLAN MAY BE REQUIRED IF SCREENING REVEALS
SIGNIFICANTLY TOXIC DISCHARGES. IN CASES WHERE SEVERE TOXICITY PROBLEMS
REMAIN, THE PERMIT MAY BE REOPENED AND MODIFIED ACCORDINGLY UNDER
SECTION 122.15(A)(2). DATA THUS GENERATED WILL ALSO BE USED TO ASSESS
PROBLEMS ASSOCIATED WITH SPECIFIC DISCHARGE TYPES OR CHEMICAL CLASSES
WHICH COULD BE INVOLVED IN HUMAN HEALTH PROBLEMS. THE INFORMATION WILL
IDENTIFY THOSE INSTANCES WHERE THE MAGNITUDE OF DISCHARGE WOULD POSE
PARTICULARLY HAZARDOUS AND LONG TERM PROBLEMS.
EPA EXPECTS THAT MANY POST-BAT DISCHARGES WILL NOT HAVE THE ACUTE
TOXICITY PROBLEMS WHICH HAVE BEEN ASSOCIATED WITH INDUSTRIAL DISCHARGERS
IN THE PAST. OF INCREASING IMPORTANCE IN FUTURE POLLUTION CONTROL WILL
BE PROBLEMS INVOLVING CHRONIC TOXICITY, PERSISTENCE, AND
BIOACCUMULATION. EPA PLANS TO INCORPORATE THE DEVELOPING TECHNOLOGY IN
THESE AREA INTO FUTURE BIOMONITORING REQUIREMENTS.
A. OUTFALL LOCATION: SECTION 122.53(D)(1) AND ITEM I. A NEW
REQUIREMENT HAS BEEN ADDED THAT APPLICANTS LIST THE LATITUDE AND
LONGITUDE AND THE NAME OF THE RECEIVING WATER FOR EACH OUTFALL.
APPLICANTS SHOULD BE ABLE TO GENERATE THIS INFORMATION EASILY FROM THE
MAP PROVIDED IN FORM 1. THIS INFORMATION, SUGGESTED BY ENVIRONMENTAL
GROUPS, WILL BE USEFUL TO EPA AND STATES IN WATER QUALITY STUDIES AND
PLANNING ACTIVITIES.
B. FLOWS, SOURCES OF POLLUTION, AND TREATMENT TECHNOLOGIES: SECTION
122.53(D)(2)-(4) AND ITEM II. THE MAJOR CHANGE FROM THE PROPOSAL IS
THAT, IN RESPONSE TO COMMENTS, INFORMATION REQUIRED ON A LINE DRAWING
AND IN TABULAR FORM ARE BETTER COORDINATED. THE LINE DRAWING NOW MUST
SHOW AVERAGE FLOWS FOR ALL TYPES OF WASTEWATER, AND ITEM V-A REQUIRES
REPORTING OF THE MAXIMUM DAILY TOTAL FLOW FROM EACH OUTFALL (AS WELL AS
AVERAGE FLOWS).
THE INFORMATION IN ITEM II IS USEFUL TO THE PERMIT WRITER BECAUSE IT
REVEALS WHAT PROCESSES USE OR CONTRIBUTE POLLUTANTS TO WATER IN THE
FACILITY, AND WHAT KINDS OF TREATMENT WASTEWATER CURRENTLY RECEIVES.
THEREFORE, COMMENTS SUGGESTING THAT THESE REQUIREMENTS BE DELETED AS
UNNECESSARY AND BURDENSOME HAVE BEEN REJECTED. EPA HAS ALSO REJECTED
THE SUGGESTION OF ENVIRONMENTAL GROUPS THAT ALL FLOWS SHOULD BE
MEASURED, NOT ESTIMATED. ESTIMATED AVERAGE FLOWS ARE SUFFICIENT TO GIVE
THE PERMIT WRITER A GENERAL PICTURE OF THE FACILITY'S WATER USE.
HOWEVER, WHEN ACTUAL FLOW MEASUREMENTS ALREADY EXIST, THEY MUST BE
REPORTED.
ALL SOURCES OF FLOW TO AN OUTFALL MUST BE IDENTIFIED IN THE LINE
DRAWING, INCLUDING COOLING WATER, SANITARY WASTEWATER, AND STORMWATER
RUNOFF. THE INSTRUCTIONS HAVE BEEN MODIFIED TO EMPHASIZE THAT SIMILAR
PROCESSES OR OPERATIONS MAY BE SHOWN ON THE LINE DRAWING AS A SINGLE
UNIT, LABELED TO CORRESPOND TO THE MORE DETAILED LISTING IN ITEM II-B.
THIS RESPONDS TO COMMENTS OBJECTING THAT EXTENSIVE REPORTING OF FLOWS
BETWEEN MANY INDIVIDUAL PROCESSES WOULD BE BURDENSOME.
THE NATIONAL COAL ASSOCIATION COMMENTED THAT THE REQUIREMENT TO
PROVIDE A LINE DRAWING IS NOT APPROPRIATE FOR COAL MINES. IN RESPONSE,
THE QUESTION ALLOWS THE APPLICANT, WHEN A WATER BALANCE IS NOT POSSIBLE,
TO DESCRIBE THE SOURCE OF THE WATER (E.G., ACTIVE SURFACE MINE, REGRADED
AREA, OR PREPARATION PLANT) AND ITS ROUTE BEFORE BEING DISCHARGED.
AVERAGE FLOWS CONTRIBUTED BY EACH OPERATION TO AN OUTFALL MUST NOW BE
REPORTED IN SECTION 122.53(D)(3) AND ITEM II-B TO ENABLE THE PERMIT
WRITER TO DETERMINE THE PROPORTION OF THE TOTAL FLOW CONTRIBUTED BY
OPERATIONS WHICH ARE COVERED BY AN EFFLUENT GUIDELINE.
IDENTIFICATION OF TREATMENT SYSTEMS IS NOW REQUESTED IN A CODED FORM
WHICH WILL ALLOW LOADING OF THIS INFORMATION INTO AN AUTOMATED DATA
SYSTEM. THE APPROPRIATE CODES ARE LISTED IN THE FORM'S INSTRUCTIONS.
THE INSTRUCTIONS HAVE BEEN MODIFICD IN SEVERAL OTHER WAYS. FIRST,
PROCESSES AND OPERATIONS MAY BE DESCRIBED IN GENERAL TERMS, IN RESPONSE
TO COMMENTERS WHO FEARED THAT THIS REQUIREMENT WOULD REVEAL TRADE
SECRETS. THIS GENERAL IDENTIFICATION OF PROCESSES CONTRI0UTING TO
WASTEWATER EFFLUENT IS NECESSARY TO IDENTIFY THE STANDARDS AND
LIMITATIONS APPLICABLE TO THE DISCHARGE. SECOND, ANY REASONABLE MEASURE
OF THE FLOW CONTRIBUTED BY STORMWATER, SUCH AS DURATION OR FREQUENCY OF
STORM EVENTS, MAY BE USED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 021 OF 74
COSTLE D M ADMINISTRATOR
EPA
113745
REGULATION
THIS RESPONDS TO COMMENTS POINTING OUT THE DIFFICULTIES OF PREDICTING
FLOWS RESULTING FROM RAINFALL. FINALLY, A DESCRIPTION OF THE FINAL
DISPOSAL OF ANY SOLID OR LIQUID WASTE OTHER THAN BY DISCAHRGE IS
REQUIRED, SO THAT THE PERMIT WRITER MAY DETERMINE THE AMOUNT OF THE
EFFLUENT DISCHARGED AND IDENTIFY THE FATE OF ALL WASTES.
OTHER SUGGESTIONS MADE BY COMMENTERS HAVE NOT BEEN ADOPTED. ONE
COMMENTER SUGGESTED THAT ESTIMATES OF FUTURE INCREASED FLOWS BE ALLOWED
IN CALCULATING PERMIT LIMITS. HOWEVER, THE GENERAL POLICY OF THE NPDES
PROGRAM IS TO BASE PRESENT LIMITS ON PRESENT OPERATION, RATHER THAN ON
POTENTIAL INCREASES. ANOTHER COMMENTER STATED THAT THE QUESTION SHOULD
NOT ASK FOR THE DESIGN FLOW OF THE TREATMENT UNITS, BECAUSE THE METHOD
OF TREATMENT MAY CHANGE. HOWEVER, THE DESCRIPTION IN THE PERMIT
APPLICATION IS NOT BINDING, BUT SIMPLY MUST BE REPRESENTATIVE OF THE
FACILITIES AT THAT TIME. PERMITTEES MAY MEET THEIR PERMIT LIMITS BY
SELECTING ANY APPROPRIATE TREATMENT EQUIPMENT OR METHODS.
THE QUESTION REQUIRING ADDITIONAL DESCRIPTION OF DISCHARGES WHICH ARE
INTERMITTENT OR SEASONAL (SECTION 122.53(D)(4) AND ITEM II-C) HAS BEEN
MODIFIED SLIGHTLY. COLUMNS FOR OUTFALL AND CONTRIBUTING OPERATION HAVE
BEEN SEPARATED, AND THE COLUMN FOR VOLUME OF FLOW HAS BEEN EXPANDED TO
ALLOW REPORTING OF FLOW RATE AND DURATION IF APPLICABLE.
C. MEASURE OF MAXIMUM PRODUCTION: SECTION 122.53(D)(5) AND ITEM
III. APPLICANTS MUST REPORT MAXIMUM PRODUCTION WHEN PRODUCTION-BASED
GUIDELINES APPLY TO THEIR DISCHARGES. THIS REQUIREMENT HAS BEEN CHANGED
SLIGHTLY FROM THE PROPOSAL. APPLICANTS MUST NOW REPORT ONLY A MAXIMUM
MEASURE OF THEIR ACTUAL PRODUCTION, NOT AN AVERAGE MEASURE AS WELL. THE
INSTRUCTIONS HAVE BEEN MODIFIED TO GIVE EXAMPLES OF GUIDELINES EXPRESSED
IN TERMS OF PRODUCTION OR OTHER MEASURES OF OPERATION. THEY STATE THAT
AN APPLICANT THAT DISCHARGES ONLY NON-PROCESS WASTEWATER IS NOT COVERED
BY A GUIDELINE AND THUS NEED NOT COMPLETE THIS ITEM. ANOTHER
MODIFICATION IS THAT APPLICANTS NOW MUST INDICATE WHICH OUTFALLS ARE
AFFECTED.
D. CURRENTLY REQUIRED CONSTRUCTION, UPGRADING OR OPERATION OF WASTE
TREATMENT EQUIPMENT: SECTION 122.53(D)(6) AND ITEM IV. APPLICANTS MUST
REPORT ANY CURRENT REQUIREMENTS FOR CONSTRUCTION OF WASTE TREATMENT
EQUIPMENT. THE PROPOSED REQUIREMENT TO DESCRIBE NON-REQUIRED PROJECTS
PROPOSED BY THE APPLICANT IS NOW OPTIONAL.
ONE ENVIRONMENTAL GROUP WANTED ITEM IV EXPANDED TO REQUIRE LISTING
ALL INTERIM DATES IN THE CONSTRUCTION SCHEDULE (AS PROPOSED SECTION
122.64(D)(15) REQUIRED). HOWEVER, THE AGENCY HAS DECIDED THAT THE
APPLICATION IS NOT AN APPROPRIATE MECHANISM TO COLLECT THIS INFORMATION,
WHICH IS USUALLY PUBLICLY AVAILABLE ANYWAY. THE FINAL COMPLIANCE DATE
IS REQUIRED TO ENABLE THE PERMIT WRITER TO DETERMINE HOW SOON THE
DISCHARGE WILL BE AFFECTED OR TO DECIDE WHETHER TO CHECK OTHER RECORDS
FOR MORE INFORMATION.
ITEM IV-B, WHICH ASKS ABOUT PLANNED PROJECTS, WAS MADE OPTIONAL IN
RESPONSE TO SEVERAL COMMENTS NOTING THAT THE APPLICANT'S TENTATIVE
PROJECT PLANS ARE AN INTERNAL MATTER. THUS, APPLICANTS MAY REPORT ANY
PROJECTS THEY HAVE IN PLANNING STAGES IF THEY FEEL THAT THIS INFORMATION
WILL ASSIST THE PERMIT WRITER IN DEVELOPING PERMIT CONDITIONS; HOWEVER,
APPLICANTS ARE NOT REQUIRED TO REVEAL THEIR PLANS.
E. POTENTIAL DISCHARGES OF TOXIC POLLUTANTS; SECTION 122.53(D)
(9)-(10) AND ITEM VI. CERTAIN INFORMATION ON TOXIC POLLUTANTS MUST BE
REPORTED IN ADDITION TO THE TESTING DISCUSSED ABOVE IN SECTION III.D.2
OF THIS PREAMBLE. THIS ADDITIONAL INFORMATION WILL HELP IDENTIFY ANY
TOXIC POLLUTANTS WHICH MAY BE DISCHARGED FROM THE APPLICANT'S FACILITY
AND THUS SHOULD BE CONTROLLED THROUGH PERMIT LIMITS. IT WILL ALSO BE
USED AS ONE BASIS FOR APPLICATION-BASED NOTIFICATION REQUIREMENTS. (SEE
SECTION III.B.2.A.III OF THIS PREAMBLE.)
(I) TOXIC POLLUTANTS USED OR PRODUCED BY THE APPLICANT: SECTION
122.53(D)(9) AND ITEM VI-A. APPLICANTS MUST IDENTIFY TOXIC POLLUTANTS
WHICH THEY USE OR MANUFACTURE AS INTERMEDIATE OR FINAL PRODUCTS OR
BYPRODUCTS. THIS REQUIREMENT SUPPORTS SECTION 122.62(E), WHICH REQUIRES
THAT PERMITS BE WRITTEN TO CONTROL TOXIC POLLUTANTS WHICH ARE USED OR
MANUFACTURED BY THE APPLICANT. SEVERAL COMMENTERS NOTED THAT POLLUTANTS
WHICH ARE USED OR MANUFACTURED AT A FACILITY ARE LIKELY TO BE DISCHARGED
BY THE FACILITY. IN ADDITION, SEVERAL COMMENTERS (INCLUDING AN
ENVIRONMENTAL GROUP AND STATE PERMIT -ISSUING AUTHORITIES) SUGGESTED
THAT THE APPLICATION FORM INCLUDE A REQUIREMENT FOR AN INVENTORY OF RAW
MATERIALS AND PRODUCTS. THIS ITEM RESPONDS TO THE ABOVE COMMENTS.
THE AGENCY CONSIDERED EXCLUDING FROM THIS APPLICATION REQUIREMENT
THOSE POLLUTANTS WHICH ARE USED OR MANUFACTURED IN SMALL AMOUNTS. THIS
APPROACH REQUIRES A DETERMINATION OF CUTOFF LEVELS OF USE OR
MANUFACTURE. HOWEVER, BECAUSE EVEN RELATIVELY SMALL AMOUNTS OF A TOXIC
POLLUTANT CAN BE OF SUBSTANTIAL CONCERN IN CERTAIN CIRCUMSTANCES, THE
CUTOFF LEVELS WOULD HAVE TO BE QUITE LOW. THE AGENCY CONCLUDED,
THEREFORE, NOT TO USE A CUTOFF BUT RATHER TO UNIFORMLY REQUIRE
SUBMISSION OF INFORMATION IDENTIFYING ANY TOXIC POLLUTANT USED OR
MANUFACTURED BY THE APPLICANT.
(II) PREDICTED POTENTIAL INCREASES IN DISCHARGES OF POLLUTANTS:
SECTION 122.53(D)(10) AND ITEM VI-B AND C. APPLICANTS MUST DESCRIBE AND
EXPLAIN THE CAUSES OF DISCHARGES OF POLLUTANTS WHICH MAY DURING THE NEXT
FIVE YEARS EXCEED TWO TIMES THE MAXIMUM LEVELS REPORTED IN WASTE STREAM
ANALYSES. THIS INFORMATION WILL BE USED BY PERMIT WRITERS TO IDENTIFY
ANY POLLUTANTS WHICH ARE EXPECTED TO BE DISCHARGED AT SIGNIFICANT LEVELS
AND THUS REQUIRE CONTROL UNDER SECTION 125.3 (SEE SECTION III.B.2.A.I OF
THIS PREAMBLE.) IN ADDITION, SECTION 122.61(A) REQUIRES NOTIFICATION OF
FUTURE DISCHARGES AT LEVELS EXCEEDING FIVE TIMES ANY LEVELS REPORTED IN
THIS QUESTION (SEE III.B.2.A.II OF THIS PREAMBLE.)
ITEMS VI-B AND C ARE ESSENTIALLY THE SAME AS THE DRAFT ITEMS VI-A, B,
AND C, EXCEPT THAT THE APPLICANT IS NOW REQUIRED TO REPORT ANY
DISCHARGES EXPECTED TO EXCEED TWO TIMES THE MAXIMUM LEVEL REPORTED IN
ITEM V INSTEAD OF FIVE TIMES THE AVERAGE LEVEL.
ONE COMMENTER ARGUED THAT SINCE THE DIRECTOR MAY MODIFY A PERMIT IF
THE DISCHARGE EXCEEDS FIVE TIMES THE REPORTED LEVEL AFTER THE PERMIT IS
ISSUED, INFORMATION ON EXPECTED INCREASES SHOULD BE OPTIONAL. THIS
SUGGESTION WAS REJECTED. IT IS APPROPRIATE TO IDENTIFY FUTURE
DISCHARGES IN THE APPLICATION AND TO SET APPROPRIATE LIMITS IN THE
PERMIT. THIS WILL HELP INSURE THE INSTALLATION OF ANY EQUIPMENT
NECESSARY TO TREAT THE POTENTIAL DISCHARGES PRIOR TO COMMENCEMENT OF THE
DISCHARGES. RELIANCE ON FUTURE REPORTING AND PERMIT MODIFICATION WOULD
RESULT IN DELAYS IN CONTROL AND SHOULD BE USED ONLY TO CONTROL
DISCHARGES WHICH ARE NOT FORESEEABLE AT THE TIME OF PERMIT ISSUANCE.
SOME COMMENTERS CONTENDED THAT THIS QUESTION WOULD BE DIFFICULT OR
IMPOSSIBLE TO ANSWER. HOWEVER, THE QUESTION REQUIRES ONLY THAT
PREDICTABLE DISCHARGES OR FLUCTUATIONS BE IDENTIFIED. WHEN APPLICANTS
HAVE NO REASON TO BELIEVE THAT SUCH DISCHARGES OR FLUCTUATIONS WILL
OCCUR, THEY MAY ANSWER "NO" TO ITEM VI-B. IF DISCHARGES OR FLUCTUATIONS
ARE NOT PREDICTED IN ITEM VI-B BUT LATER DO OCCUR, THEY WILL TRIGGER
APPLICATION-BASED NOTIFICATION. WHEN APPLICANTS BELIEVE THAT
FLUCTUATIONS MAY OCCUR BUT CANNOT PREDICT THEIR DEGREE, THEY SHOULD
STATE THEIR REASONS FOR BELIEVING THAT THE FLUCTUATIONS MAY OCCUR; THE
PERMIT WRITER WILL THEN DETERMINE WHETHER MORE INFORMATION IS NECESSARY.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 022 OF 74
COSTLE D M ADMINISTRATOR
EPA
113746
REGULATION
ONE COMMENTER REQUESTED THAT SOME PROVISION BE MADE TO EXEMPT
APPLICANTS FROM LIABILITY FOR FALSE REPORTING IF THE ESTIMATES REPORTED
IN ITEM VI TURN OUT LATER TO BE INACCURATE. NO SUCH PROVISION IS
NECESSARY BECAUSE APPLICANTS WOULD NOT BE LIABLE TO PROSECUTION FOR
INCORRECT ESTIMATES MADE IN GOOD FAITH.
F. RESULTS OF PREVIOUS BIOMONITORING: SECTION 122.53(D)(11) AND
ITEM VII. EACH APPLICANT MUST INDICATE WHETHER OR NOT BIOLOGICAL TESTS
FOR ACUTE OR CHRONIC TOXICITY HAVE BEEN PERFORMED ON ITS DISCHARGE AND
DESCRIBE THE RESULTS OF THOSE TESTS. THE PROPOSED REQUIREMENT THATTHE
TEST RESULTS BE REPORTED HAS BEEN DELETED.
TWO COMMENTERS STRONGLY OPPOSED THE REQUIREMENT TO REPORT THE RESULTS
OF PREVIOUS BIOLOGICAL TOXICITY TESTING BECAUSE THE DATA IN MANY CASES
WOULD HAVE BEEN DEVELOPED BY EPA IN COOPERATION WITH THE INDUSTRIES TO
ASSIST IN EFFLUENT GUIDELINES DEVELOPMENT. ANOTHER COMMENTER SUGGESTED
THAT THE PROPOSED REPORTING REQUIREMENT UNFAIRLY PENALIZED INDUSTRIES
WHO HAVE BEEN DILIGENT IN THEIR CLEANUP EFFORTS AND WOULD CREATE SERIOUS
LEGAL OR PUBLIC RELATIONS PROBLEMS FOR THOSE DISCHARGERS WHO IN THE PAST
HAVE HAD EFFLUENT QUALITY PROBLEMS BUT HAVE NOT INSTALLED EXTENSIVE
TREATMENT FACILITIES.
EPA AGREES THAT REQUIRING DISCHARGERS WHO HAVE VOLUNTARILY
CONDUCTED BIOMONITORING TOXICITY TESTS IN THE PAST TO REPORT THE
RESULTS COULD BE UNFAIR, PARTICULARLY IF THEIR CLEANUP EFFORTS
HAVE RESULTED IN SUBSTANTIAL TOXICITY REDUCTIONS. THE AGENCY HAS
ELIMINATED THE REQUIREMENT TO PROVIDE THE RESULTS OF SUCH TESTING
ON THE APPLICATION FORM. INSTEAD, ITEM VII REQUIRES APPLICANTS
TO REPORT WHETHER OR NOT BIOLOGICAL TESTS FOR ACUTE OR CHRONIC
TOXICITY HAVE BEEN PERFORMED ON THE DISCHARGE OR ON THE RECEIVING
WATER IN CLOSE PROXIMITY TO THE OUTFALL. WHEN THE RESULTS OF SUCH
TEST ARE LIKELY TO INDICATE THE PRESENT SITUATION(E.G., WHEN NO
NEW TREATMENT SYSTEM HAS BEEN INSTALLED OR WHEN NO PRODUCTION AND
PROCESS CHANGES HAVE OCCURRED SINCE THE TESTS WERE CONDUCTED), THE
PERMIT WRITER CAN REVIEW THESE FACTORS AND DECIDE WHETHER OR NOT
TO REQUEST FURTHER INFORMATION RELATING TO THOSE TESTS.
G. LABORATORY CONDUCTING ANALYSES: SECTION 122.53(D)(12) AND ITEM
VIII. IF ANY OF THE ANALYSES REPORTED ON THE APPLICATION FORM WERE
PERFORMED BY CONTRACT LABORATORY OR CONSULTING FIRM, APPLICANTS MUST
IDENTIFY EACH LABORATORY AND THE ANALYSES WHICH IT PERFORMED. IN THE
PROPOSAL, APPLICANTS WERE NOT REQUIRED TO IDENTIFY WHICH ANALYSES WERE
PERFORMED BY WHICH LABORATORIES. THIS REQUIREMENT WAS ADDED IN RESPONSE
TO THE SINGLE COMMENT RECEIVED ON THIS QUESTION. IT IMPOSES ONLY A
MINIMAL REPORTING BURDEN, WHILE PROVIDING USEFUL INFORMATION FOR QUICKLY
FOLLOWING UP ON PROBLEMS RELATING TO THE DATA.
H. OTHER INFORMATION REQUIRED BY THE DIRECTOR ON A CASE-BY-CASE
BASIS: SECTION 122.53(D)(13). IN ADDITION TO COMPLYING WITH SPECIFIC
INFORMATION REQUIREMENTS ON THE APPLICATION FORM, THE APPLICANT MUST
PROVIDE SUCH OTHER INFORMATION AS MAY REASONABLY BE REQUIRED TO ASSESS
THE DISCHARGES OF THE FACILITY AND TO DETERMINE WHETHER TO ISSUE AN
NPDES PERMIT. THIS INFORMATION MAY INCLUDE ADDITIONAL QUANTITATIVE DATA
AND BIOASSAYS TO ASSESS THE RELATIVE TOXICITY OF DISCHARGES TO FISH AND
OTHER AQUATIC LIFE, AND REQUIREMENTS TO DETERMINE THE CAUSE OF SUCH
TOXICITY. THIS THIS REGULATION IS ESSENTIALLY THE SAME AS PROPOSED
SECTION 122.64(D)(20), EXCEPT FOR MINOR CHANGES. THE WORK "REASONABLY"
HAS BEEN ADDED AS SUGGESTED BY ONE COMMENTER. IN ADDITION, THE SENTENCE
CONCERNING BIOASSAYS, WHICH APPEARED AS A COMMENT IN THE PROPOSAL, NOW
HAS BEEN INCORPORATED INTO THE REGULATION, WITH CHEMICAL ANALYSIS ALSO
MENTIONED EXPLICITY.
SEVERAL COMMENTERS STATED THAT PERMIT WRITERS WERE BEING GIVEN TOO
MUCH DISCRETION TO ASK APPLICANTS TO GENERATE NEW AND COSTLY DATA, AND
THAT THE REGULATION WAS TOO OPEN ENDED AND SHOULD BE DELETED. ONE
COMMENTER SUGGESTED THAT THE SPECIFIC INFORMATIONAL REQUIREMENTS WERE SO
COMPLETE THAT THIS REGULATION WAS UNNECESSARY. ANOTHER SUGGESTED THAT
EPA DEVELOP A LIST OF POLLUTANTS OF CONCERN BY INDUSTRY CATEGORY, AND
LIMIT REQUIREMENTS TO THAT LIST. NONE OF THESE SUGGESTIONS WAS ADOPTED,
HOWEVER, EXCEPT FOR ADDITION OF THE WORD "REASONABLY," WHICH SHOULD
PROVIDE PROTECTION AGAINST UNREASONABLE REQUESTS FOR INFORMATION. THE
NEED FOR "OTHER INFORMATION" ON A CASE-BY-CASE BASIS FOR CERTAIN
DISCHARGES HAS BEEN DEMONSTRATED BY PRIOR EXPERIENCE IN THE NPDES
PROGRAM. WHILE THE UNIFORM REQUIREMENTS SHOULD SUFFICE FOR MOST
APPLICANTS, THE FLEXIBILITY TO REQUEST FURTHER INFORMATION IN
APPROPRIATE CIRCUMSTANCES MUST BE RETAINED.
DELETED FROM THE FINAL REGULATIONS AND
FORM.
A. OPTIONAL REPORTING REQUIREMENTS FOR HAZARDOUS SUBSTANCES.
PROPOSED SECTION 122.64(D)(19) GAVE APPLICANTS THE OPTION OF SUBMITTING
INFORMATION ON DISCHARGES OF HAZARDOUS SUBSTANCES DESIGNATED UNDER
SECTION 311 OF CWA TO ALLOW THEM TO APPLY FOR EXCLUSIONS OF THOSE
DISCHARGES FROM THE REQUIREMENTS AND PENALTIES OF SECTION 311. ITEM IX
OF THE DRAFT NPDES APPLICATION FORM CONTAINED A FORMAT FOR SUBMITTING
SUCH OPTIONAL INFORMATION TO EPA. BOTH THE REGULATION AND ITEM HAVE
BEEN DELETED FROM THE FINAL REGULATION AND FORM.
EPA HAS DELETED THIS QUESTION BECAUSE IT IS UNNECESSARY, IN
ACCORDANCE WITH 40 CFR 117.12 (44 FR 50766, AUGUST 29, 1979) WHICH
STATES THAT TO OBTAIN EXCLUSIONS FROM SECTION 311, APPLICANTS NEED NOT
REPORT IN THEIR APPLICATIONS ANY INFORMATION CONCERNING CONTINUOUS OR
ANTICIPATED INTERMITTENT DISCHARGES OF HAZARDOUS SUBSTANCES WHICH ARE
CAUSED BY EVENTS OCCURRING WITHIN THE SCOPE OF RELEVANT OPERATING OR
TREATMENT SYSTEMS. (SEE SECTION III.D.2.B.III OF THIS PREAMBLE FOR
FURTHER BACKGROUND.)
CERTAIN DISCHARGES BY NPDES PERMITTEES OR PERMIT APPLICATIONS, SUCH
AS SPILLS, REMAIN SUBJECT TO SECTION 311 COVERAGE ABSENT THE SUBMISSION
OF APPROPRIATE INFORMATION TO THE NPDES PERMITTING AUTHORITY AND
COVERAGE IN THE NPDES PERMIT. HOWEVER, SINCE THIS INFORMATION MAY BE
SUBMITTED AT AN APLICANT'S OPTION UNDER 40 CFR 117.12(A)(2) (DEALING
WITH "EXCLUSION 2"), NO REGULATORY REQUIREMENT IS NEEDED IN SECTION
122.53(D). FURTHERMORE, NO SINGLE FORMAT WILL SERVE THE PURPOSES OF
EACH APPLICANT SEEKING TO EXCLUDE POTENTIAL SPILLS FROM SECTION 311
COVERAGE UNDER EXCLUSION . INSTEAD, THE INSTRUCTIONS TO FORM 2C DIRECT
APPLICANTS SEEKING SUCH EXCLUSIONS TO ATTACH THE INFORMATION REQUIRED BY
SECTION 117.12(C)(1) TO THEIR APPLICATION FORMS ON ADDITIONAL SHEETS OF
PAPER.
INFORMATION ON CONTINUOUS OR ANTICIATED INTERMITTENT DISCHARGES OF
MANY HAZARDOUS SUBSTANCES IS NOW ROUTINELY REQUIRED OF CERTAIN
APPLICANTS BY SECTION 122.53(D)(7)(IV) AND ITEM V-D OF FORM 2C. THESE
REQUIREMENTS REFLECT CONGRESSIONAL INTENT THAT SUCH DISCHARGES BE
REGULATED UNDER THE NPDES PROGRAM RATHER THAN UNDER SECTION 311 OF CWA.
B. SUBMISSION OF DATA ON ADDITIONAL POLLUTANTS. THE PROPOSED
APPLICATION FORM CONTAINED A QUESTION REQUIRING APPLICANTS TO REPORT
DATA ON ANY POLLUTANTS IN ADDITION TO THOSE REPORTED IN ITEM V (PROPOSED
SECTION 122.64(D)(18) AND DRAFT ITEM VIII). THIS REQUIREMENT HAS BEEN
DELETED FROM THE FINAL FORM. THE DELETION IS IN RESPONSE TO SEVERAL
COMMENTS OBJECTING THAT THE PROPOSAL WAS BURDENSOME AND REQUIRED
REPORTING OF DATA THAT WAS INACCURATE AND NOT USEFUL. THE AGENCY AGREES
THAT THE INFORMATION WOULD GENERALLY NOT BE USEFUL TO PERMIT WRITERS IN
THIS ROUND OF PERMIT ISSUANCES.
AN ENVIRONMENTAL GROUP SUGGESTED THAT EPA REQUIRE APPLICANTS TO
SUBMIT OR TO KEEP ON FILE ANY GC AND GC/MS PROFILES THEY GENERATE TO
PROVIDE INFORMATION ON ADDITIONAL POLLUTANTS. EPA CONSIDERED
ESTABLISHING SUCH A REQUIREMENT; HOWEVER, INVESTIGATION REVEALED
SEVERAL DRAWBACKS.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 023 OF 74
COSTLE D M ADMINISTRATOR
EPA
113747
REGULATION
ONLY A COMPUTER-READABLE FORM OF THE RAW DATA (THAT IS, NINE-TRACK
MAGNETIC TAPE) WOULD PROVIDE DATA ON ADDITIONAL POLLUTANTS, AND THE
COST OF STORING DATA IN THIS FORM CAN BE SIGNIFICANT. THE COST OF
REANALYZING THE TAPES RANGES UP TO HALF O THE COST OF ANALYZING
A NEW SAMPLE. THEREFORE, POTENTIAL COST SAVINGS ARE NOT GREAT AND
DO NOT OUTWEIGH THE ADVANTAGES OF CONDUCTING NEW SAMPLING
AND ANALYSES, WHEN NECESSARY, RATHER THAN RETAINING RAW DATA ON A
ROUTINE BASIS. THE RETAINED DATA WOULD BE LESS CURRENT AND WOULD
REVE-L ONLY A LIMITED NUMBER OF ADDITIONAL POLLUTANTS.
C. ANCILLARY ACTIVITIES WHICH MAY RESULT IN DISCHARGES OF TOXIC
POLLUTANTS OF HAZARDOUS SUBSTANCES -- BEST MANAGEMENT PRACTICES
PROGRAMS. PROPOSED SECTIONS 122.64(D)(11) AND (13) AND DRAFT ITEMS
III-B AND III-C OF FORM 2C REQUIRED EACH APPLICANT TO DESCRIBE ANY
ACTUAL OR POTENTIAL DISCHARGES OF TOXIC POLLUTANTS OR HAZARDOUS
SUBSTANCES FROM ANCILLARY ACTIVITIES AND TO ATTACH A COPY OF ITS BEST
MANAGMENT PRACTICES (BMP) PROGRAM FOR CONTROLLING THESE DISCHARGES. THE
REQUIREMENT TO DEVELOP A BMP PROGRAM WAS CONTAINED IN PART 125, SUBPART
K OF THE FINAL NPDES REGULATIONS PUBLISHED ON JUNE 7, 1979 (44 FR 32854,
32954). THE EFFECTIVE DATE OF PART 125, SUBPART K WAS DEFERRED ON
AUGUST 10, 1979 (44 FR 47063) PENDING THE AVAILABILITY OF A BMP GUIDANCE
DOCUMENT. ON MARCH 20, 1980 (45 FR 17997) THE GUIDANCE DOCUMENT WAS
MADE AVAILABLE FOR A 45-DAY PUBLIC COMMENT ENDING MAY 5, 1980 (SEE 45 FR
21635; APRIL 2, 1980). THEREFORE, AT THIS TIME 40 CFR PART 125,
SUBPART K IS NOT YET EFFECTIVE.
IN LIGHT OF THIS TIMING PROBLEM, EPA DECIDED TO OMIT THE REQUIREMENT
TO SUBMIT A BMP PROGRAM FROM FORM 2C AT THIS TIME. WHEN PART 125,
SUBPART K BECOMES EFFECTIVE FORM 2C WILL BE AMENDED AS APPROPRIATE.
THIS WILL ALLOW EPA TO MAKE ANY ADJUSTMENTS TO THE REQUIREMENTS
NECESSARY TO RESPOND TO PUBLIC COMMENTS ON THE BMP MANUAL AS WELL AS
THOSE PREVIOUSLY SUBMITTED ON PROPOSED SECTIONS 122.64(D)(11) AND (13)
AND DRAFT ITEMS III-B AND III-C. IN PARTICULAR, EPA IS CONSIDERING
COMMENTS SUBMITTED ON THE DRAFT FORM WHICH SUGGESTED THAT A SUMMARY OF
THE BMP PROGRAM, RATHER THAN THE ENTIRE PROGRAM, BE INCLUDED WITH THE
APPLICATION, AND THAT THE DESCRIPTION OF ACTUAL AND POTENTIAL DISCHARGES
(DRAFT ITEM III-0) BE COMBINED WITH THIS SUMMARY.
SPECIFIC MONITORING REQUIREMENTS FOR AN INDIVIDUAL PERMITTEE ARE
ESTABLISHED BY THE PERMIT WRITER WHEN THE PERMIT IS ISSUED. SECTION
122.11(B) REQUIRES THAT PERMITS CONTAIN MONITORING REQUIREMENTS WHICH
ARE SUFFICIENT TO YIELD DATA REPRESENTATIVE OF THE MONITORED ACTIVITY.
HOWEVER, IT DOES NOT ESTABLISH ANY SPECIFIC REQUIREMENTS FOR MONITORING
TYPE AND FREQUENCY, BUT RATHER LEAVES THAT TO THE JUDGMENT OF THE PERMIT
WRITER. THIS CASE-BY-CASE APPROACH TO SETTING MONITORING REQUIREMENTS,
WHICH HAS BEEN USED IN THE PAST IN THE NPDES PROGRAM, REFLECTS THE NEED
TO CONSIDER OUTFALL-SPECIFIC FACTORS SUCH AS THE FLOW RATE, THE TYPES OF
POLLUTANTS DISCHARGE, THE NATURE OF THE RECEIVING WATER, AND THE
EXISTENCE OF DOWNSTREAM INTAKES FOR DRINKING WATER.
BECAUSE MONITORING REQUIREMENTS ARE RELATED TO MANY OF THE ISSUES IN
THE APPLICATION FORM AND PERMIT REGULATIONS, THE PREAMBLE TO THE
PROPOSED REGULATIONS CONTAINED (AT 44 FR 34407; JUNE 14, 1979) A
DESCRIPTION OF A TYPICAL MONITORING SCHEME UNDER THE NEW TOXICS-ORIENTED
PERMITTING STRATEGY. THE SCHEME DEPICTED THE USUAL FREQUENT MONITORING
FOR POLLUTANTS LIMITED IN THE PERMIT AS WELL AS PERIODIC MONITORING FOR
SOME OR ALL OF THE TOXIC POLLUTANTS AND, IN SOME CASES, PERIODIC
BIOLOGICAL MONITORING. IN ADDITION, THE PROPOSED REGULATIONS INCLUDED A
PROVISION (PROPOSED SECTION 122.71(A)(1)) ALLOWING MONITORING
REQUIREMENTS TO BE SET FOR POLLUTANTS CONTROLLED BY THE PROPOSED
APPLICATION-BASED LIMITS REGULATIONS, ALTHOUGH, AGAIN, NO FREQUENCY WAS
SPECIFIED. THE PREAMBLE ALSO DISCUSSED THE COSTS WHICH MIGHT BE
ASSOCIATED WITH PARTICULAR COMPLIANCE MONITORING REQUIREMENTS.
TWO MAJOR DIFFERENCES BETWEEN THE FINAL REGULATIONS AND THE PROPOSAL
AFFECT MONITORING REQUIREMENTS.
FIRST, THE PROPOSAL ON APPLICATION-BASED LIMITS HAS BEEN DELETED, AND
THE FINAL REGULATIONS CONTAIN AN APPLICATION-BASED NOTIFICATION
REQUIREMENT AND A PROVISION AUTHORIZING PERMIT MODIFICATION WHEN A TOXIC
POLLUTANT IS DISCHARGED AT A LEVEL EXCEEDING THAT ACHIEVABLE BY BAT.
ALTHOUGH APPLICATION-BASED LIMITS MIGHT AS SOME COMMENTERS ARGUED, AHVE
FORCED PERMITTEES TO MONITOR THEIR DISCHARGES FREQUENTLY TO ENSURE THAT
THE LIMITS WOULD NOT BE VIOLATED AND THAT THE PERMITTEES WOULD NOT BE
SUBJECT TO ENFORCEMENT ACTIONS, APPLICATION-BASED NOTIFICATION
REQUIREMENTS DO NOT IMPOSE SIMILAR BURDENS. NOTIFIECATION IS REQUIRED
ONLY WHEN THE PERMITTEE KNOWS OR HAS REASON TO BELIEVE THAT SOME
ACTIVITY HAS OCCURRED OR WILL OCCUR WHICH WOULD RESULT IN INCREASED
DISCHARGES. NO OBLIGATION IS IMPOSED BY THE REGULATION TO MONITOR FOR
POLLUTANTS WHICH ARE NOT EXPECTED TO BE PRESENT. OF COURSE, PERMITS FOR
DISCHARGES OF TOXIC POLLUTANTS ARE LIKELY TO REQUIRE SOME TESTING FOR
TOXIC POLLUTANTS DURING THE LIFE OF THE PERMIT TO DETERMINE WHETHER
SIGNIFICANT AMOUNTS OF TOXICS ARE BEING DISCHARGED. SEE SECTION
122.62(1)(I)(4), WHICH ALLOWS PERMIT WRITERS TO REQUIRE MONITORING FOR
POLLUTANTS NOT LIMITED IN THIS PERMIT.
SECOND, THE FINAL REGULATIONS (SECTION 122.62(E)) REQUIRE THAT
PERMITS CONTAIN LIMITS TO CONTROL ALL TOXIC POLLUTANTS WHICH ARE USED OR
MANUFACTURED BY APPLICANTS OR WHICH ARE REPORTED AT HIGH EVEELS. THESE
LIMITS WILL INCLUDE LIMITS ON SPECIFIC TOXIC POLLUTANTS UNLESS THE
PERMIT WRITER DETERMINES THAT THE DISCHARGE OF THE TOXICS WILL BE
ADEQUATELY CONTROLLED BY LIMITS ON OTHER POLLUTANTS. LIMITS ON
INDIVIDUAL TOXICS WILL REQUIRE COMPLIANCE MONITORING FOR THE TOXICS,
WHICH COULD BE EXPENSIVE IN SOME INSTANCES. HOWEVER, THIS FOLLOWS
INEVITABLY FROM THE STATUTORY REQUIREMENTS THAT PERMITS ASSURE
INSTALLATION OF BAT-LEVEL TREATMENT TO CONTROL DISCHARGES OF TOXIC
POLLUTANTS. SECTION 122.62(E) MERELY PROVIDES CERTAIN CRITERIA
GOVERNING WHICH TOXIC POLLUTANTS MAY BE DISCHARGED IN SIGNIFICANT
AMOUNTS. EPA EXPECTS THAT WHERE TOXICS TESTING WOULD BE VERY EXPENSIVE,
THE USE OF INDICATOR LIMITS OR INDICATOR MONITORING MAY HELP ALLEVIATE
THIS PROBLEM.
IN THE PREAMBLE TO THE PROPOSED REGULATIONS, ONE OF THE OPTIONS
PRESENTED FOR COMPLIANCE MONITORING AND REPORTING WAS THE USE OF
TOXICITY TESTS IN ADDITION TO CHEMICAL ANALYSES. UNDER THIS
STRATEGY, TOXICITY TESTS WOULD SUPPLEMENT CHEMICAL ANALYSES TO THAT
CHEMICAL TESTING WOULD BE REQUIRED "SPARINGLY" AND ACUTE TOXICITY
TESTS "ON A MORE FREQUENT BASIS." EPA REASONED THAT BECAUSE TOXICIT
TESTS ARE GENERALLY LESS EXPENSIVE THAN CHEMICAL ANALYSES AND MAY
LEAD TO THE DETECTION OF ADDITIONAL SOURCES OF TOXICITY NOT
CONTROLLED BY THE PERMIT, A USEFUL CHECK ON WASTESTREAM TOXICITY
COULD BE ECONOMICALLY PROVIDED AS PART OF THE COMPLIANCE
MONITORING REQUIREMENTS.
SEVERAL COMMENTERS, HOWEVER, ARGUED THAT BIOLOGICAL TOXICITY
INFORMATION IS NOT RELEVANT OR NECESSARY WHEN A PERMIT IS BASED SOLELY
ON CHEMICAL LIMITS AND WHEN CHEMICAL MONITORING IS REQUIRED. SEVERAL
OTHER COMMENTERS FACORED BIOMONITORING BUT OBJECTED TO PERFORMING BOTH
CHEMICAL AND BIOLOGICAL TESTING. THE AGENCY AGREES THAT IN MOST CASES
WHERE THE PERMIT CONTAINS ONLY CHEMICAL LIMITATIONS, TOXICITY TESTS
SHOULD NOT BE REQUIRED FOR THE PURPOSE OF COMPLIANCE MONITORING.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 024 OF 74
COSTLE D M ADMINISTRATOR
EPA
113748
REGULATION
HOWEVER, THERE MAY BE CIRCUMSTANCES WHERE CONSIDERABLE DOUBT EXISTS
CONCERNING THE ADEQUACY OF THE CHEMICAL LIMITS EMPLOYED AS PERMIT LIMITS
TO CONTROL ALL SOURCES OF TOXICITY. IN THESE CASES, TOXICITY TESTS
SHOULD BE REQUIRED AS PART OF THE MONITORING PLAN NOT TO TEST FOR
COMPLIANCE, BUT TO TRIGGER INVESTIGATIONS OF THE CAUSE OF REMAINING
TOXICITY. THE INVESTIGATIONS COULD LEAD TO THE REOPENING OF THE PERMIT
TO CONTROL THE NEWLY-FOUND PROBLEM. OF COURSE, WHEN TOXICITY LIMITS ARE
SPECIFIED IN THE PERMIT, THE APPROPRIATE TOXICITY TESTS ARE NECESSARY TO
ENSURE COMPLIANCE.
SEVERAL COMMENTERS SUGGESTED THAT BIOMONITORING COULD COMPLETELY
REPLACE CHEMICAL ANALYSIS AND SERVE AS A COMPLIANCE INDICATOR TO TRIGGER
MORE EXPENSIVE CHEMICAL ANALYSIS. HOWEVER, TOXICITY TESTING ALONE IS
INADEQUATE BECAUSE MANY TOXIC POLLUTANTS ARE NOT ACUTELY TOXIC BUT
BIOACCUMULATE OR ARE CARCINOGENIC OR MUTAGENIC. IT IS IMPORTANT TO KNOW
WHETEHR THOSE POLLUTANTS ARE BEING DISCHARGED. THESE POLLUTANTS WOULD
OFTEN BE DISCHARGED BELOW THE LEVELS OF ACUTE TOXICITY AND NOT BE
ADEQUATELY MONITORED BY ACUTE TOXICITY TESTS; LONG-TERM THREATS WOULD
THUS REMAIN UNDISCOVERED. THEREFORE, TOXICITY TESTS SHOULD NOT BE USED
EXCLUSIVELY FOR COMPLIANCE MONITORING IN THESE CASES.
EPA INTENDS TO CONTINUE TO RELY ON CHEMICAL TESTING TO INSURE
COMPLIANCE WITH PERMIT LIMITS FOR SPECIFIC POLLUTANTS. HOWEVER THE
AGENCY BELIEVES THAT BIOLOGICAL TOXICITY TESTING IS USEFUL TO HELP
DETERMINE WHETHER THE TOXICITY OF DISCHARGES IN COMPLIANCE WITH BAT
PERMIT LIMITS HAS BEEN ADEQUATELY REDUCED TO ASSURE ACHIEVEMENT OF
FISHABLE AND SWIMMABLE WATERS AS REQUIRED BY SECTION 101 OF CWA.
THEREFORE, EPA WILL SOON ENTER INTO A RULEMAKING PROCEEDING TO REQUIRE
TOXICITY SCREENING TESTS FOR CERTAIN DISCHARGERS AFTER THEY HAVE
INSTALLED BAT.
APPLICATION REPORTING REQUIREMENTS
THE INCREMENTAL COSTS (OVER THOSE ASSOCIATED WITH EXISTING
APPLICATION REQUIREMENTS) IMPOSED BY THE NEW SAMPLING AND ANALYSIS
REQUIREMENTS CONSIST OF THE FOLLOWING TWO ELEMENTS: (1) COSTS IMPOSED
BY THE NEW REQUIREMENT THAT CERTAIN APPLICANTS SAMPLE AND ANALYZE
CERTAIN WASTE STREAMS FOR SOME OR ALL OF THE ORGANIC TOXIC POLLUTANTS;
AND (2) COSTS IMPOSED BY THE REVISION OF CURRENT REPORTING REQUIREMENTS
FOR POLLUTANTS OTHER THAN THE ORGANIC TOXICS, INCLUDING ADDITIONS TO AND
ELETIONS FROM THE CURRENT LIST OF POLLUTANTS WHICH MUST BE REPORTED AND
CHANGES IN THE NATURE OF REPORTING FOR CERTAIN POLLUTANTS RETAINED ON
THE LIST.
1. SAMPLING AND ANALYSIS OF ORGANIC TOXICS. FOR THE PURPOSE OF
CALCULATING A PROBABLE COST IMPACT, THE AGENCY IS ASSUMING THAT SAMPLING
CONSISTS OF 24-HOUR COMPOSITES (A CHANGE FROM THE PROPOSED REQUIREMENT
OF 72-HOUR COMPOSITES). ANALYSIS IS ASSUMED TO CONSIST OF GC/MS
QUANTIFICATION. APPLICANTS MAY USE ANY METHOD OF ANALYSIS BEFORE THE
PUBLICATION OF FINAL 304(H) TEST METHODS, BUT THE AGENCY EXPECTS THAT
GC/MS WILL BE USED MOST OFTEN BECAUSE OF THE DESIGNATION OF TESTING
REQUIREMENTS BY GC/MS FRACTION.
COST DATA TO SUPPORT THE PROPOSAL WERE DEVELOPED FROM A VARIETY OF
SOURCES ,WHICH YIELDED FIGURES OVER A RELATIVELY LARGE RANGE. THESE
DATA WERE PUBLISHED IN THE PROPOSAL'S PREAMBLE AND COMMENTS WERE
RECEIVED. THE AGENCY VERIFIED THE DATA WITH ADDITIONAL CHECKING, BUT
SOME UNCERTAINTIES REMAIN, INCLUDING THE EFFECT OF LABORATORIES'
INCREASED USE OF AND FAMILIARITY WITH THE ANALYTICAL METHODS, THE IMPACT
OF THE ENTRY OF NEW LABORATORIES INTO THE MARKET, AND THE LEVEL OF
QUALITY ASSURANCE/QUALITY CONTROL (QA/QC) WHICH WILL BE REQUIRED BY
FINAL REGULATIONS UNDER 40 CFR PART 136. THE FOLLOWING COST ESTIMATES
REPRESENT CONSERVATIVELY HIGH JUDGMENTS BASED UPON UNIT PRICES AS OF
FALL 1979.
THE AGENCY RECEIVED COMMENTS FROM A NUMBER OF SOURCES ON THE UNIT
COST OF SAMPLING AND ANALYSIS IN THE PREAMBLE TO THE PROPOSAL. THES
COMMENTS RANGED FROM ONE WHICH INDICATED THAT THE AGENCY COST
ESTIMATE OF $4500 WAS AN OVERESTIMATE BY $2,000 OF THE COST OF
SAMPLING AND ANALYSIS TO ONE WHICH SUGGESTED THAT THE AGENCY FIGURE
WAS AN UNDERESTIMATE OF THAT COST BY A FACTOR OF TWO. SEVERAL
COMMENTERS REMARKED THAT THE AGENCY ESTIMATES FOR THE COST OF
SAMPLING AND FOR THE COST OF GC/MS SCREENING WERE CORRECT; ANOTHER
COMMENTER CONFIRMED THE OVERALL AGENCY COST ESTIMATE. THE COST OF
GC/MS QUANTIFICATION WAS VIEWED AS AN UNDERESTIMATE BY SEVERAL
COMMENTERS BECAUSE OF THEIR EXPECTATIONS ABOUT THE COST OF
QUALITY ASSURANCE PROCEDURES. HOWEVER, IT WAS UNCLEAR FROM THESE
COMMENTS WHAT THE COMMENTERS ASSUMED ABOUT THE NATURE OF THE
QA/QC PROCEDURES TO BE EMPLOYED.
AMONT THE COMMENTS ON THE UNIT COST OF SAMPLING AND ANALYSIS, ONLY
THOSE CONCERNING THE COST OF QUALITY ASSURANCE PROCEDURES SPECIFIED THE
MANNER IN WHICH EPA-ASSUMED UNIT COSTS WERE REGARDED AS UNDERESTIMATES.
THE AGENCY RECOGNIZES THAT GC/MS COSTS VARY WITH THE QA/QC PROCEDURES
USED BUT FEELS THAT TODAY'S COST ESTIMATES REFLECT A REASONABLE UPPER
LIMIT ON THE COST OF THE QA/QC PROCEDURES WHICH WILL BE USED IN
PERFORMING GC/MS ANALYSIS.
A SECOND GROUP OF COMMENTS RECEIVED BY THE AGENCY CONCERNED
THE ASSUMPTIONS ABOUT THE NUMBER OF SAMPLES WHICH WILL BE TAKEN
BY PERMIT APPLICANTS. ONE COMMENTER FROM THE COAL MINING INDUSTRY
ARGUED THAT THE OVERALL COST CALCULATION WAS AN UNDERESTIMATE BECAUS
SOME PLANTS IN ITS INDUSTRY HAVE AS MANY AS 10 OUTFALLS. THE
AGENCY ACKNOWLEDGES THAT THE TOTAL COST FOR SOME APPLICANTS WILL
BE SEVERAL TIMES THE AVERAGE COST FIGURE, BUT ALSO EMPHASIZES
THAT THE FIGURES ARE USED TO CALCULATE THE TOTAL INCREMENTAL COST
FOR THE AVERAGE PLANTS. IN ADDITION, IT IS NOTED THAT TODAY'S
REGULATIONS PROVIDE FOR TESTING EXEMPTIONS FOR IDENTICAL OUTFALLS,
WHICH SHOULD REDUCE INDIVIDUAL IMPACTS IN SOME CASES.
SOME COMMENTERS REGARDED THE ONE-SAMPLE ASSUMPTION AS AN
UNDERESTIMATE BECAUSE OF THE REQUIREMENT IN THE PROPOSAL THAT THE SAMPLE
BE REPRESENTATIVE OF THE OPERATIONS OF THE PLANT FOR THE PREVIOUS 12
MONTHS. IN RESPONSE TO THESE COMMENTS, THE REQUIREMENT IN TODAY'S
INSTRUCTIONS IS THAT THE TIME FOR SAMPLING BE REPRESENTATIVE OF THE
APPLICANT'S NORMAL OPERATIONS. THIS MODIFICATION MEANS THAT THE
INSTRUCTIONS NO LONGER POTENTIALLY REQUIRE MULTIPLE SAMPLING, BUT ONLY A
SOMEWHAT CAREFUL CHOICE OF SAMPLING TIME.
THE APPLICATION-BASED LIMITS PROVISION HAS BEEN REPLACED BY AN
APPLICATION-BASED REPORTING REQUIREMENT IN SECTION 122.61(A). THIS
CHANGE FROM THE PROPOSAL STRENGTHENS THE LIKELIHOOD THAT EACH APPLICANT
WILL NEED TO COLLECT AND ANALYZE ONLY ONE SAMPLE. IT MAKES THE
POTENTIAL COST OF THE APPLICATION-BASED LIMIT PROVISION A MOOT ISSUE.
(I) SAMPLING COSTS. SAMPLING COSTS WILL VARY SIGNIFICANTLY,
DEPENDING ON THE EXTENT TO WHICH THE APPLICANT HAS TO RELY ON AN
INDEPENDENT CONTRACTOR RATHER THAN IN-HOUSE PERSONNEL TO PERFORM THE
SAMPLING. THE INSTRUCTIONS STATE THAT SAMPLING SHOULD BE SUPERVISED AY
AN EXPERIENCED SUPERVISOR. THE SAMPLING COSTS WILL ALSO DEPEND ON THE
DEGREE TO WHICH THE COSTLIER, MANUAL (RATHER THAN AUTOMATED) SAMPLING
MUST BE USED. THE ANALYSIS BELOW ASSUMES THAT THE SAMPLING WILL BE
PERFORMED MANUALLY, ALTHOUGH EITHER SAMPLING METHOD IS ALLOWED.
AS NOTED ABOVE, THIS ANALYSIS REFLECTS THE CHANGE FROM THE PROPOSED
REQUIREMENT FOR A 72-HOUR SAMPLE TO A 24-HOUR SAMPLE, RESULTING IN
SUBSTANTIAL COST REDUCTIONS.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 025 OF 74
COSTLE D M ADMINISTRATOR
EPA
113749
REGULATION
USING CURRENT PRICES, THE APPROXIMATE SAMPLING COST BREAKDOWN IN THE
CASE OF COMPLETE RELIANCE UPON INDEPENDENT CONTRACTORS (ASSUMING THE USE
OF A 4-PERSON SAMPLING TEAM FOR A 2-DAY SAMPLING TRIP) IS AS FOLLOWS:
TECHNICIANS AT $80/DAY, X 3 SAMPLING SHIFTS = $240 X 2 $480 SUPERVISOR
AT $120/DAY = $120 X 2 = $240 REPORTS (1 PERSON-DAY, SUPERVISOR) = $120
OVERHEAD ON CONTRACT SALARIES (150%) = $1,260 EQUIPMENT SET UP ON SITE,
2 MAN-DAYS = $160 DISPOSABLE EQUIPMENT, SAMPLE CONTAINER PREPARATION =
$130 SAMPLE AIR TRANSPORT = $100 SUBTOTAL, LESS PERSONNEL AIR FARES,
LOCAL TRAVEL AND PER DIEM = $2,490 PERSONNEL AIR FARE (ESTIMATED
AVERAGE) -- $200/EA. = $800 PERSONNEL PER DIEM/LOCAL TRAVEL --
$50/DAY/PERSON = $400 TOTAL = $3,690
COSTS IN A NUMBER OF THESE CATAGORIES, SUCH AS SALARIES, OVERHEAD
RATESL AND AIR FARE MAY VARY SIGNIFICANTLY. HOWEVER, THE AGENCY
BELIEVES THAT $3,690 IS A REASONABLE ESTIMATE OF THE DISCHARGER'S COST
TO HAVE AN INDEPENDENT 4-PERSON TEAM TO UNDERTAKE A 2-DAY SAMPLING TRIP.
THE SITUATION DESCRIBED ABOVE IS THE MOST EXPENSIVE CASE. BY USING
AN EXPERIENCED CONTRACT SUPERVISOR AND POSSIBLY CONTRACT SAMPLING
EQUIPMENT TOGETHER WITH IN-HOUSE TECHNICIANS, SAMPLING COSTS MAY BE
REDUCED BY APPROXIMATELY $1850 BECAUSE OVERHEAD, TRAVEL, AND SALARY
EXPENSES ASSOCIATED WITH THE THREE CONTRACTOR TECHNICIANS ARE
ELIMINATED. THIS LEAVES A NET SAMPLING COST OF APPROXIMATELY $1825 PER
24-HOUR COMPOSITE SAMPLE COLLECTED MANUALLY.
IF A SAMPLING TEAM CAN SAMPLE AT LEAST TWO OUTFALLS SIMULTANEOUSLY,
ADDITIONAL SAVINGS CAN BE ACHIEVED BECAUSE PERSONNEL-RELATED COSTS NEED
NOT BE DUPLICATED. THE COST OF A TWO OUTFALLS SAMPLE IS $2,520; $1260
PER OUTFALL. THE INCREASE IN COST OF NEARLY $700 IS DUE TO ADDITIONAL
EXPENDITURES FOR REPORT PREPARATION, OVERHEAD, EQUIPMENT, SAMPLE
TRANSPORT, AND EQUIPMENT SET-UP.
FOR COMPUTING THE TOTAL INCREMENTAL COST OF COMPLYING WITH THE
APPLICATION REQUIREMENTS (SECTION F(3) BELOW), AN AVERAGE SAMPLING COST
OF $1,550 PER OUTFALL, WHICH IS HALFWAY BETWEEN $1,260 AND $1,825, WILL
BE ASSUMED.
(II) COST OF ANALYSIS BY GC/MS QUANTIFICATION. FOR THE PURPOSE OF
DETERMINING THE COST OF GC/MS TESTING, IT IS ASSUMED THAT APPLICANTS
WILL FORWARD THEIR SAMPLES TO INDEPENDENT LABORATORIES FOR ANALYSIS.
THE AGENCY HAS RECEIVED DATA ON GC/MS COSTS FROM SEVERAL SOURCES,
INCLUDING AGENCY EXPERIENCE WITH EFFLUENT GUIDELINCS DEVELOPMENT,
INDUSTRY, INDEPENDENT LABORATORIES, AND GC/MS EQUIPMENT MANUFACTURERS.
THE DATA FROM THESE SOURCES, TOGETHER WITH THE FACT THAT INCREASED
VOLUME AND IMPROVED TECHNOLOGY HAVE BEEN STEADILY REDUCING COSTS,
INDICATE THAT A REASONABLE ESTIMATE OF GC/MS TESTING COSTS (WITH SOME
QA/QC) IS $1,500 TO $2,000. THIS ESTIMATE DOES NOT TAKE INTO ACCOUNT
THAT APPLICANTS IN MORE THAN HALF OF THE INDUSTRIES CAN OMIT ANALYSIS OF
AT LEAST ONE GC/MS FRACTION, AND IS THUS AN OVERESTIMATE OF THE TOTAL
COST. THE POTENTIAL FOR SAVINGS FROM THIS EXCLUSION IS UP TO $500 PER
APPLICANT. FOR PURPOSES OF COMPUTING THE TOTAL INCREMENTAL COST OF
COMPLYING WITH THE APPLICATION REQUIREMENTS THE AGENCY IS ASSUMING THE
COST OF GC/MS TESTING IS $2,000. ADDING $2,000 FOR ANALYSIS TO THE
ASSUMED AVERAGE SAMPLING COST OF $1,550, THE AVERAGE COST OF SAMPLING
AND ANALYZING THE TOXIC ORGANICS IS ESTIMATED TO BE $3,550 PER OUTFALL.
B. SAMPLING AND ANALYSIS OF POLLUTANTS OTHER THAN THE ORGANIC TOXIC
POLLUTANTS. THE METHODS FOR ANALYZING FOR MOST OF THE POLLUTANTS OTHER
THAN THE ORGANIC TOXICS (E.G., METALS, AMMONIA, AND OTHER INORGANIC
POLLUTANTS) ARE WELL ESTABLISHED. COST DATA FOR THESE POLLUTANTS ARE
THEREFORE MORE CERTAIN THAN THE COST DATA FOR ORGANIC POLLUTANTS.
SECTION III.2.B. OF THIS PREAMBLE DISCUSSES THE NEW REQUIREMENTS
AND INDICATES CHANGES FROM THE JUNE 14 PROPOSAL. THE MODIFICATIONS
IN THE TESTING REQUIREMENTS FROM THE PROPOSAL WILL RESULT IN LITTLE
OR NO CHANGE IN COST FROM THOSE ASSUMED IN THE PROPOSAL. LITTLE
OR NO CHANGE IN SAMPLING COSTS WILL RESULT FROM TODAY'S REQUIREMENTS
ANALYTICAL COST WILL INCREASE SLIGHTLY.
THE AGENCY ESTIMATES THAT INCREMENTAL SAMPLING AND ANALYSIS COSTS FOR
POLLUTANTS OTHER THAN THE ORGANIC TOXICS WILL RANGE BETWEEN $180 TO
$400. FOR PURPOSES OF COMPUTING THE TOTAL INCREMENTAL ECONOMIC IMPACTS
IN SECTION III.F.3 BELOW, AN INCREMENTAL COST OF $300 IS ASSUMED.
THE PREPARATION OF THE INFORMATION WHICH IS REQUIRED BY SECTION
122.53(D) (DISCUSSED IN SECTION III.D OF THIS PREAMBLE) WILL REQUIRE
STAFFTIME, RESULTING IN COSTS IN ADDITION TO THE ANALYTICAL TESTING
COSTS. THESE REPORTING COSTS INCLUDE DATA DEVELOPMENT; COLLECTION AND
COMPILATION BY VARIOUS LEVELS OF THE APPLICANT'S STAFF (CLERICAL,
ADMINISTRATIVE AND PROFESSIONAL); AND REVIEW BY LEGAL ADVISORS,
PROFESSIONAL SUPERVISORS, AND MANAGERS.
UNIT REPORTING COST ARE SUMMARIZED IN TABLE V. TABLE V REFLECTS TWO
MODIFICATIONS IN THE AGENCY ANALYSIS MADE SINCE THE PROPOSAL. ONE IS
THE ELIMINATION OF THE ITEM REQUIRING ATTACHMENT OF A BMP PROGRAM. THE
OTHER MODIFICATION IS THE RESULT OF A CHANGE IN REPORTING REQUIREMENTS
FOR SECTION 311 DISCHARGES. IN THE PROPOSAL AN APPLICANT HAD THE OPTION
OF REPORTING DISCHARGES OF HAZARDOUS SUBSTANCE IN ORDER TO CLAIM
EXEMPTION FROM SECTION 311 REQUIREMENTS. THE FINAL AGENCY REGULATIONS
(44 FR 50766; AUGUST 29, 1979) PROVIDE THAT AN APPLICANT NEED NOT
REPORT HAZARDOUS SUBSTANCES DISCHARGES AS PART OF ITS NPDES APPLICATION
TO OBTAIN A SECTION 311 EXCLUSIONS IF THE DISCHARGES HAVE OTHERWISE BEEN
MADE A PART OF THE PUBLIC RECORD. THEREFORE, THE COSTS TO PREPARE THIS
INFORMATION HAVE BEEN OMITTED FROM TABLE V. (FOR THE REMAINING
APPLICATION REQUIREMENT ON HAZARDOUS SUBSTANCES SEE ITEM V-D OF FORM
2C.) THE NET RESULT OF THESE MODIFICATIONS IS A SIGNIFICANT REDUCTION IN
UNIT REPORTING COSTS.
THE UNIT REPORTING COSTS WILL VARY DEPENDING ON THE NATURE AND EXTENT
OF THE APPLICANT'S RELEVANT ACTIVITIES AND ON THE APPLICABILITY OF
VARIOUS REPORTING REQUIREMENTS TO THE APPLICANT. THE AGENCY CHOSE IN
THE PROPOSAL TO CALCULATE TOTAL COSTS BY EXAMINING THE BURDEN FOR A
TYPICAL PLANT IN EACH OF FOUR CATEGORIES; PRIMARY MAJOR, PRIMARY MINOR,
SECONDARY MAJOR, SECONDARY MINOR. COSTS ARE HIGHEST FOR PRIMARY MAJORS
AND LOWEST FOR SECONDARY MINORS.
THE CHIEF ASSUMPTIONS UNDERLYING THE CALCULATIONS ARE:
1. PRIMARY INDUSTRY DISCHARGERS WILL IN GENERAL EXPEND GREATER
EFFORT TO STUDY WASTE STREAM VARIABILITY FOR TOXIC POLLUTANTS (INCLUDING
AN EXAMINATION OF PROCESSES AND RAW MATERIALS) THAN SECONDARY INDUSTRY
DISCHARGERS.
2. MAJOR DISCHARGERS WILL GENERALLY HAVE MORE COMPLEX OPERATIONS
THAN MINOR DISCHARGERS. FOR MAJOR DISCHARGERS, LARGE NUMBERS OF
DIFFERENT PROCESSES MAY CREATE COMPLEX WASTE STREAMS WHICH ARE THEN
DISCHARGED THROUGH SEVERAL OUTFALLS. THESE CONSIDERATIONS WILL REQUIRE
MAJOR DISCHARGERS TO EXPEND SIGNIFICANTLY MORE RESOURCES THAN MINOR
DISCHARGERS.
THE UNIT REPORTING COST OF THE NEW APPLICATION FORM, ON WHICH NO
SUBSTANTIVE COMMENTS WERE RECEIVED, ARE SUMMARIZED IN TABLE V.
TABLE V. -- UNIT REPORTING COSTS OF NEW APPLICATION FORM
(HOURS/SOURCE)
TABLE OMITTED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 026 OF 74
COSTLE D M ADMINISTRATOR
EPA
113750
REGULATION
TO ASSESS THE INCREMENTAL REPORTING IMPACT OF THE NEW FORM OVER THE
OLD FORM, THE TOTAL UNIT REPORTING COSTS OF THE OLD FORM WERE ALSO
ASSESSED. IT SHOULD BE NOTED THAT THE REPORTING COST ASSESSMENTS
PERFORMED FOR OFFICE OF MANAGEMENT AND BUDGET ON THE ORIGINAL NPDES
APPLICATION FORM INDICATED AN UNUSUALLY LOW UNIT COST OF COMPLETING THAT
FORM. THIS LOW ORIGINAL BASELINE COST IS ATTRIBUTABLE TO THE FACT THAT
A LARGE PORTION OF THE NPDES APPLICATION REQUIREMENTS WERE FULFILLED IN
MANY CASES BY SUBMITTING APPLICATIONS COMPLETED UNDER THE OLD REFUSE ACT
PERMIT PROGRAM (RAPP) ADMINISTERED BY THE U.S. ARMY CORPS OF ENGINEERS.
WHEN THE NPDES PROGRAM CAME INTO BEING THESE RAPP APPLICATIONS WERE
OFTEN ACCEPTED AS NPDES APPLICATIONS, SO THAT THE REPORTING COSTS OF THE
ORIGINAL FORM WERE REPORTED AS INCREMENTAL COSTS. FOR THIS REASON, THE
TOTAL COST OF THE OLD FORM WAS RECALCULATED.
THESE RECALCULATED UNIT REPORTING COSTS ARE SUMMARIZED IN TABLE VI.
TABLE VI. -- UNIT REPORTING COST OF OLD APPLICATION FORM
(HOURS/SOURCE)
TABLE OMITTED.
THE REPORTING BURDENS IMPOSED BY THE NEW APPLICATION REQUIREMENTS ARE
COMPARABLE TO THOSE IMPOSED BY THE EXPIRING FORM. A NUMBER OF
UNNECESSARY AND BURDENSOME REQUIREMENTS IN THE EXPIRING APPLICATION FORM
HAVE BEEN DELETED, BUT THESE DELETIONS ARE LARGELY OFFSET BY EXPANDED
AND NEW REQUIREMENTS.
THE HOURLY REPORTING COSTS SHOWN IN TABLES V AND VI WERE TRANSLATED
INTO DOLLARS BY DETERMINING THE TIME SPENT ANSWERING EACH TYPE OF
QUESTION SHOWN IN THOSE TABLES BY THREE LEVELS OF PERSONNEL:
ADMINISTRATIVE AND CLERICAL (ASSUMED TO BE $10/HOUR); MID-LEVEL
BUSINESS AND TECHNICAL ($25/HOUR); AND PROFESSIONAL, LEGAL AND MAGERIAL
($50/HOUR). (NO ADJUSTMENTS FOR INFLATION HAVE BEEN MADE IN THE
COMPENSATION LEVELS SINCE THE PROPOSAL.)
BASED ON THE ABOVE, THE INCREMENTAL UNIT REPORTING COST OF THE NEW
FORM IS PRESENTED IN TABLE VII.
TABLE VII. -- INCREMENTAL UNIT COSTS OF NEW APPLICATION FORM
TABLE OMITTED.
TABLE VII ILLUSTRATES THAT WHILE THE UNIT REPORTING COST OF THE NEW
FORM IS GREATER THAN THE COST FOR THE OLD FORM, THE NEW FORM FOCUSES
REPORTING REQUIREMENTS ON THOSE INDUSTRIES WITH THE GREATEST POTENTIAL
FOR TOXIC DISCHARGES (PRIMARY INDUSTRIES). NOTE, HOWEVER, THAT THE
INCREMENTAL COST SHOWN ABOVE FOR SECONDARY INDUSTRY MINOR DISCHARGERS IS
PROBABLY UNDERSTATED SINCE SOME OF THESE DISCHARGERS COMPLETED A SPECIAL
"SHORT FORM" RATHER THAN THE COMPLETE NPDES APPLICATION FORM ANALYZED IN
TABLE VI ABOVE.
WITH THE PROPOSED APPLICATION
REQUIREMENTS
THIS SECTION DISCUSSES THE TOTAL ADDITIONAL COSTS IMPOSED BY THE
APPLICATION REQUIREMENTS OF SECTIONS 122.53(D) AND 122.4(D) OVER THOSE
IMPOSED BY EXISTING REQUIREMENTS. THE AGENCY HAS COMPUTED THE TOTAL
INCREMENTAL COSTS OF ITS NEW REQUIREMENTS DURING FISCAL YEARS 1981-1985
(THE PERIOD FOR WHICH THE NEW APPLICATION REQUIREMENTS WILL BE
EFFECTIVE) BY MULTIPLYING THE UNIT COSTS DERIVED ABOVE BY THE NUMBER OF
APPLICANTS OR ACTIVITIES WHICH ARE EXPECTED TO INCUR THOSE COSTS DURING
THE PERIOD FY 1981-FY 1985. THE FACTS, ESTIMATES AND ASSUMPTIONS USED
TO COMPUTE THE TOTAL INCREMENTAL COSTS OF THE FORM ARE SUMMARIZED IN
TABLE VIII.
A. NUMBER OF APPLICANTS. THE NUMBER OF EXISTING INDUSTRIAL
DISCHARGERS WHO WILL USE THE NEW APPLICATION FORM DURING FY 1981-FY 1985
IS BASED UPON THE AGENCY'S RECORDS OF DISCHARGERS WHO CURRENTLY HAVE
PERMITS AND MAY BE EXPECTED TO REAPPLY UPON PERMIT EXPIRATION.
IT SHOULD BE NOTED THAT SOME DISCHARGERS WILL HAVE HAD THEIR
EFFLUENTS TESTED BY EPA AS PART OF EPA'S EFFLUENT GUIDELINES DEVELOPMENT
PROGRAM. IN GENERAL, THOSE TEST RESULTS MAY BE REPORTED AND THE
APPLICANT NEED NOT PERFORM THE SAMPLING AND ANALYSIS. IT IS ESTIMATED
THAT APPROXIMATELY 100 APPLICANTS WILL BE ABLE TO TAKE ADVANTAGE OF THIS
PROVISION. HOWEVER, THE ANALYSIS BELOW ASSUMES THAT ALL APPLICANTS WILL
DO THEIR OWN TESTING; THUS THE ESTIMATED TOTAL COST IS PROBABLY AN
OVERESTIMATE.
B. NUMBER OF OUTFALLS PER APPLICANT. THE AGENCY HAS ESTIMATED THE
AVERAGE NUNBER OF OUTFALLS PER DISCHARGER, BASED UPON INFORMATION
RECEIVED FROM EPA'S REGIONAL OFFICES AND FROM STATE OFFICES. DUE TO
INFORMATION RECEIVED FROM THE REGIONAL OFFICES SINCE THE PROPOSAL, THE
ESTIMATED AVERAGE NUMBER OF NON-PROCESS WASTEWATER OUTFALLS PER MAJOR
DISCHARGER HAS BEEN REDUCED. MAJOR DISCHARGERS ARE NOT ASSUMED TO
AVERAGE ONE AND A HALF NON-PROCESS WASTEWATER OUTFALLS AND ONE AND A
HALF PROCESS WASTEWATER OUTFALLS EACH. MINOR DISCHARGERS ARE ASSUMED TO
AVERAGE ONE NON-PROCESS WASTEWATER OUTFALL AND ONE HALF OF A PROCESS
WASTEWATER OUTFALL EACH. THESE ARE AVERAGES USED FOR COMPUTATION OF
TOTAL IMPACTS; PARTICULAR PLANTS MAY DIFFER SIGNIFICANTLY. FOR
EXAMPLE, AS SOME COMMENTERS STATED, CERTAIN MAJOR DISCHARGERS HAVE AS
MANY AS 10 PROCESS WASTEWATER OUTFALLS. HOWEVER, THESE SITUATIONS ARE
BALANCED BY THOSE IN WHICH DISCHARGERS HAVE NO PROCESS WASTEWATER
OUTFALLS.
C. NUMBER OF INTAKES TO BE TESTED BY APPLICANTS. IN ADDITION TO
SAMPLING AND ANALYZING OUTFALLS, SOME APPLICANTS WILL BE TESTING THEIR
INTAKES TO OBTAIN CREDIT FOR POLLUTANTS IN THEIR INTAKES UNDER 40 CFR
122.63(H).
EPA TOOK SEVERAL FACTORS INTO ACCOUNT IN COMING UP WITH ITS ESTIMATE
THAT ONE-THIRD OF ALL APPLICANTS WILL TEST ONE INTAKE POINT. FIRST,
CREDIT IS AVAILABLE ONLY UNDER CERTAIN CIRCUMSTANCES. FOR EXAMPLE, THE
INTAKE SOURCE MUST BE THE SAME BODY OF SURFACE WATER (AS OPPOSED TO A
WELL, PIPED-IN SUPPLY OR OTHER SOURCE) THAT RECEIVES THE DISCHARGE FOR
WHICH THE CREDIT IS SOUGHT. ALSO, PLANTS WITH MANY OUTFALLS GENERALLY
HAVE ONLY ONE SOURCE OF SURFACE WATER INFLUENT (E.G., A SINGLE ADJACENT
STREAM OR LAKE). FURTHERMORE, THE ELIMINATION OF APPLICATION-BASED
LIMITS FROM THE REGULATIONS WILL REDUCE THE NUMBER OF ANALYSES BELOW THE
NUMBER CONTEMPLATED IN THE PROPOSAL.
BASED ON THE NUMBER OF DISCHARGERS, TESTED INTAKES, PROCESS
WASTEWATER OUTFALLS AND NONPROCESS WASTEWATER OUTFALLS SUMMARIZED
BELOW. TABLE IX SETS FORTH SUBTOTALS AND TOTALS OF THE COSTS
IMPOSED BY THE REGULATIONS DURING FY 1981-1985.
THE TOTAL INCREMENTAL COST OF COMPLYING WITH THE APPLICATION
REQUIREMENTS OVER A FIVE YEAR PERIOD IS APPROXIMATELY $51 MILLION. MORE
THAN THREE-FOURTHS OF THAT COST WILL BE BORNE BY PRIMARY INDUSTRY
APPLICANTS.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 027 OF 74
COSTLE D M ADMINISTRATOR
EPA
113751
REGULATION
APPROXIMATELY 45% OF THIS PRIMARY INDUSTRY COST WILL BE INCURRED
BETWEEN APFIL 1980 AND JUNE 1981; AND MORE THAN A THIFD OF THIS COST
WILL BE BORNE BETWEEN JULY 1981 AND JUNE 1984. THEREFORE, CALCULATION
OF A MEANINGFUL ANNUALIZLD COST FIGURE PRESENTS DIFFICULTIES. BECAUSE
THE TOTAL COST OVER FIVE YEARS IS LESS THAN $100 MILLION (TE THRESHOLD
FOR A REGULATOFY AALYSIS), THE ANNUALIZED COST CLEARLY WOULD NOT EXCEED
THE THRESHOLD NO MATTER HOW THE ANNUALIZED COST IS CALCULATED.
THE AGENCY BELIEVES THAT THE AGGREGATE COST FIGURE OVERESTIMATES THE
IMPACT OF THE APPLICATION REQUIREMENTS FOR SEVERAL REASONS. MOST
IMPORTANT, SOME PRIMARY INDUSTRY APPLICANTS WHOSE PERMITS EXPIRE PRIOR
TO DECEM0ER 1, 1980 ARE NOT REQUIRED TO SU0MIT THE NEW APPLICATION
FORMS. (SEE DISCUSSION IN PREAMELE TO THE CONSOLIDATED REGULATIONS
FOUND ELSEWHERE IN TODAY'S FEDERAL REGISTEF, AT 40 CFR 122.53 (C).).
APPROXIMATELY ONE-SIXT OF THE PRIMARY INDUSTRY APPLICANTS AND PROLABLY A
SIMILAR PORTION OF THE SECONDARY INDUSTRY APPLICANTS FALL INTO THIS
CATEGORY. (HOWEVER, IF ISSUED SORT-TERM PERMITS, THEY WILL BE REQUIRED
TO REAPPLY BEFORE JUNE 1981, USING THE NEW APPLICATION FORM.)
SECOND, THE AGENCY IS ASSUMING THAT EACH APPLICANT WILL HIRE AN
INDEPENDENT CONTRACTOR TO PERFORM SAMPLING AND TAT EACH APPLICANT WILL
SEND ITS SAMPLES TO AN INDEPENDENT LABORATORY FOR ANALYSIS. TO THE
EXTENT THAT APPLICANTS CAN PERFORM THE SAMPLING AND ANALYSIS INTERNALLY,
SUBSTANTIAL SAVINGS CAN BE ACHIEVED.
THIRD, TE AGENCY'S ASSUMPTIONS ABOUT THE NUMBER OF PIPES PER PLANT
AND ABOUT THE NUMBER OF INTAKE PIPES WHICH WILL BE TESTED ARE PROBABLY
HIGH.
FOURTH, THE COST FIGURE DOES NOT TAKE INTO ACCOUNT THAT APPLICANTS IN
MORE THAN HALF OF THE PRIMAFY INDUSTRIES WILL NOT HAVE TO TEST FOR
CERTAIN GC/MS FRACTIONS WHEN ANALYZING THEIR SAMPLES. TIS COULD RESULT
IN SAVINGS OF UP TO A FOURTH OF THE ANALYTICAL COSTS IN THESE
INDUSTRILS.
FIFTH, THE AGGREGATE COST FIGURE DOES NOT REFLECT THE SAVINGS WHIC
WILL RESULT FROM THE GENERAL SMALL BUSINESS EXEMPTION AND FROM THE SMALL
COAL INE EXEMPTION (DISCUSSED IN SECTION III.F.6 EELOW). THESE SAVINGS
COULD 0E SUBSTANTIAL FOR THE COAL MINE EXEMPTION BECAUSE SEVERAL
THOUSAND APPLICANTS ARE INVOLVED.
THE AGENCY IS ASSMING TAT THERE WILL BE NO COST FOR SECONDARY
INDUSTRY APPLICANTS TO SAMPLE AND ANALYZE FOR ORGANIC TOXICS. HOWEVER,
SECONDARY INDUSTRY APPLICANTS ARE REQUIRED TO TEST FOR THOSE ORGANIC
TOXIC POLLUTANTS WHICH THEY KNOW OR AVE REASON TO BELIEVE ARE PRESENT IN
THEIR DISCHARGE. THEREFORL, SOME SECONDARY INDUSTRY APPLICANTS WILL
TEST FOR SOME OF THE ORGANIC TOXICS IF THEY KNOW OR HAVE REASON TO
BELIEVE TAT THEY ARE DISCHARGING THOSE TOXICS. HOWEVEF, THE AGENCY
BELIEVES THAT THE ABOVE ASSUMPTION RESULTS IN ONLY A SLIGHT
UNDERESTIMATE BECAUSE THESE APPLICANTS ARE UNLIKELY TO AVE TO TEST FOR
MANY ORGANIC TOXIC POLLUTANTS BECAUSE OF THE NATURE OF THEIR DISCHARGES.
THE AGENCY BELIEVES THAT ANY UNDERESTIMATE IS COMPENSATED FOR BY
OVERESTIMATES ELSEWHERE AND HAS NOT ATTEMPTED TO QUANTIFY THE AMOUNT OF
ADDITIONAL TESTING BECAUSE LITTLE OR NO INFORMATION IS AVAILABLE (NONE
WAS SUPPLIED EY COMMENTERS).
THE AGENCY CONDUCTED AN ANALYSIS OF THE ECONOMIC IMPACT OF THE
REVISED APPLICATION REPORTING REQUIREMENTS UPON PRIMARY INDUSTRY
DISCHARGERS WITH PROCESS WASTEWATER DISCHARGES (UPON WHOM THE CHIEF
BURDEN OF THE NEW REQUIREMENTS FALLS). TE ANALYSIS FOCUSED PRIMARILY ON
THOSE FACILITIES WHICH WILL BE MOST AFFECTED: ARGINAL, SMALL VOLUME
FACILITIES IN PRIMARY INDUSTRIES. THE ANALYSIS WAS CONDUCTED FOR FIVE
INDUSTRIES LEATHER TANNING, WOOD PRESERVING, ELECTROPLATING, FOUNDRIES,
AND IRON AND STEEL. THE FIRST FOUR INDUSTRIES WERL SELECTED BECAUSE
MANY OF THE PLANTS ARE SMALL AND TUS MORE SENSITIVE TO NEWLY IMPOSED
COST BURDENS THAN OTHER INDUSTRIES. THE IRON AND STEEL INDUSTRY WAS
SELECTED TO EXAMINE THE ANALYTICAL COSTS FOR A TYPICAL PLANT WHICH
CONTAINS A LARGE NUMBER OF PROCESS WASTEWATER OUTFALLS, RESULTING IN
CORRESPONDINGLY LARGE ANALYTICAL COSTS. NO INDUSTRY WAS DISCOVERED
WHICH CONSISTED PREDOMINANTLY OF SMALL FIRMS WITH MORE THAN ONE PROCESS
WASTEWATER OUTFALL.
COSTS VARY SIGNIFICANTLY FROM PLANT TO PLANT DEPENDING ON THE NUMBER
OF OUTFALLS AT A PARTICULAR PLANT. THE COMBINED A.ALYTICAL AND
REPORTING COSTS FOR A PLANT ITH ONE PROCESS WASTEWATER OUTFALL WILL BE
SMALL, ON THE ORDER OF $5,000, WHILE TE COST TO A STEELMAKING FACILITY
WITH 10 PROCESS WASTEWATER OUTFALLS MAY BE AS IGHAS $35,000.
THE IMPACT ON PRICES, PROFITS, AND PLANT CLOSURES SHOULD BE SMALL FOR
MOST INDUSTRIES ALTHOUGH IMPACTS MAY BE SIGNIFICANT IN INDIVIDUAL CASES.
ALTHOUG THE AGENCY HAS CONCLUDED THAT THE APPLICATION REQUIREMENTS WILL
NOT FORCE CLOSURES, SMALL BUSINESSES WITH HIGLY TOXIC, VARIABLE, OR
COMPLEX DISCHARGES MAY FIND THE REQUIREMENTS BURDENSOME. IN AN EFFORT
TO MINIMIZL THIS BURDEN, THE AGENCY IS INCLUDING A SMALL BUSINESS
EXEMPTION IN THE TESTING REQUIREMENTS (SEE SECTION III.F.6 0ELOW).
THE KEY ECONOMIC INDICATORS EXAMINED TO ESTIATE ECONOMIC IMPACTS ARE
THE RATIOS OF TESTING COSTS TO SALES, TO PROFITS, AND TO TOTAL POLLUTION
CONTROL INVESTMENT. THE RATIO OF TESTING COST TO SALES INDICATES IMPACT
ON PRICE INCREASES WHILE THE RATIO OF TESTING COST TO PROFIT PROVIDLS A
ROUGH INDICATION OF IMPACT ON PROFITS AND OF THE POSSIBILITY OF
CLOSURES. TABLE X SUMMARIZES THE RESULTS FOR AVERAGE SMALL PLANTS IN
EACH INDUSTRY ANALYZED DURING THE YEAR THAT THE PERMIT APPLICATION IS
SUBMITTED. THESE RESULTS REPRESENT CHANGES FROM TABLE X IN THE PROPOSAL
DUE TO THE DECREASE IN THE ESTIMATED TESTING COSTS.
TABLE VIII. -- BASIS FOR CALCULATING INCREMENTAL COSTS (FOR FISCAL
YEARS 1981-85)
TABLE OMITTED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 028 OF 74
COSTLE D M ADMINISTRATOR
EPA
113752
REGULATION
FOR A MORE DETAILED ANALYSIS OF THL IMPACT OF THE REGULATION ON EACH
OF THE FIVE INDUSTRIES, THE READER IS REFERRED TO TE PREAMBLE OF THE
PROPOSED REGULATION (44 FR 34393 AT 34412-3, JUNE 14, 1979). THAT
DISCUSSION SHOULD BE READ WITH THE MODIFICATIONS IN TABLE X BELOW IN
MIND. THE AGENCY RECEIVED NO COMMENTS ON THAT PORTION OF THE ANALYSIS.
TABLE X. -- ECONOMIC IMPACTS OF TESTING COSTS
TABLE OMITTED.
UPON INDEPENDENT LABORATORY
CAPABILITY
THE AGENCY RECEIVED SEVERAL COMMENTS ON THE PORPOSED REGULATION WICH
SUGGESTED THAT THE NPDES ANALYTICAL REQUIREENTS WOULD EXCEED LABORATORY
CAPACITY FOR GC/MS ANALYSIS. ONE COMMENTER NOTED THAT GC/MS INSTRUMENTS
ARE VERY EXPENSIVE AND THAT MANY APPLICANTS WILL NOT BE ABLE TO OBTAIN
ONE. THE ANALYSIS OF DEMAND FOR INDEPENDENT LABORATORY GC/MS ANALYSES
IS BASED ON THE ASSUMPTION THAT ALL ANALYSES WILL BE DONE BY INDEPENDENT
LABORATORIES AND NOT BY THE APPLICANTS THEMSELVES. TO TE EXTENT THAT
INDUSTRY ASSOCIATIONS AND INDIVIDUAL APPLICANTS POSSES LABORATORY
CAPACITY FOR THESE ANALYSES, THE ESTIMATE OF DEMAND FOR INDEPENDENT LAB
CAPABILITY BELOW IS AN OVERESTIMATE.
THE IMPACT OF OTHER AGENCY PROGRAMS HAS BEEN INCLUDED IN THE
DISCUSSION BELOW IN RESPONSE TO A COMENT. ALTHOUGH IT IS EXPECTED THAT
REGULATION OF TOXIC POLLUTANTS WILL RESULT IN SOME INCRLASE IN
MONITORING REQUIREMENTS FOR TOXIC POLLUTANTS (SEE SECTION III.E.1 OF
THIS PREAMBLE), THE AGENCY HAS NOT INCLUDED THE EFFECT OF MONITORING ON
THE DEMAND FOR LABORATORY CAPACITY, AS SUGGESTED BY ONE COMMENTER,
BECAUSE IT ANTICIPATES THAT ANY INCREASE IN MONITORING REQIREMENTS WOULD
OCCUR AFTER THER PERIOD DURING WHICH LAB DEMAND WILL BE AT ITS PEAK DUE
TO THE APPLICATION REQUIREMENTS. IN ADDITION, MONITORING MAY IN SOME
CASES BE CONDUCTED FOR A SELECTED GROUP OF POLLUTANTS BY USE OF GC RATER
THAN GC/MS.
AFTER REEVALUATION, THE AGENCY HAS CONCLUDED THAT GC/MS LABORATORY
CAPACITY SHOULD BE SUFFICIENT TO MEET EXPECTED DEMAND, ALTHOUGH SOME
DELAYS IN OBTAINING ANALYTICAL SERVICES MAY OCCUR DURING THE PEAK PERIOD
FROM APRIL 1980 TO JUNE 1981.
TE AGENCY EVALUATED EXPECTED DEMAND ON GC/MS CAPACITY FROM THE
APPLICATION FORM TESTING REQUIREMENTS BY ASSUMING THAT ALL REQUIRED
ANALYSES WILL BE DONE USING GC/MS AND THAT, ON AVERAGE, ONE ANALYSIS
WILL REQUIRC TWO RUNS THROUG THE MACHIE. SINCE THE NUBER OF PROCESS
WASTEWATLR OUTFALLS AND INTAKES TO BE TESTED FOR THE PRIMARY INDUSTRY
APPLICANTS IS ESTIMATED TO BE 8,000, THE NUMBER OF GC/MS RUNS SHOULD BE
BETWEEN 8,U0U AND 16,0U0.
ANALYSIS OF THE PERMIT EXPIRATION DATES FOR THE PRIMARY INDUSTFY
APPLICANTS INDICATES THAT ABOUT 45% OF GC/MS TESTS WILL BE PERFORMED
BETWEEN APRIL 1980 AND JUNE 1981. THE RANGL OF DEMAND FOR GC/MS TESTS
IS PFOJECTED TO BE BETWELN 240 AND 480 ANALYSES PER MONT DURING THIS
PEAK PERIOD. DEMAND FOR GC/MS CAPACITY FROM OTHER PROGRAMS WITIN EPA
DURING TE SAME PERIOD IS EXPECTED TO BE 650-850 ANALYSES PER MONTH.
AGENCY INFORATION AND A RECENT MANUFACTURERS SURVEY OF AVAILABLE
LABORATORIES IDENTIFIED 66 LABORATORIES WITH 129 GC/MS SYSTEMS CAPABLE
OF PERFORMING THE REQUIRED ANALYSES. (THESE FIGURES REPRESENT INCREASES
FROM THOSE REPORTED IN THE PROPOSAL.) CURRENT LABORATORY EXPERIENCE
INDICATES TAT LARGER LABORATORIES (WITH 3 OR MORE GC/MS SYSTEMS AND AN
INDEPENDENT DATA SYSTEM) ARE CAPABLE OF ANALYZING 60-80 SAMPLES PER
MONTH. THE SMALLER LABORATORIES ARE CAPABLE OF PERFORMING 20-25
ANALYSES PER MONT. APPROXIMATELY ONE QUARTER OF LABORATORIES ARE OF THE
LARGER TYPE. A CONSERVATIVELY LOW ESTIMATE OF CURRENT LABORATORY
CAPACITY, WITH 25% ALLOWANCE FOR MACHINE FAILURE, APPEARS TO BE 2,000
ANALYSES PER MONTH ON A SINGLE SHIFT BASIS AND 4,000 ANALYSES PER MONTH
ON A DOUBLE SHIFT BASIS. THIS CAPACITY IS IN ADDITION TO THE IN-HOUSE
GC/MS CAPACITY WHICH MANY INDUSTRIES AND UNIVERSITIES HAVE FOR RESEARCH
AND OTHER PURPOSLS. SOME GROWTH IN CAPACITY CAN BE ANTICIPATED; GC/MS
CAPABILITY IN SERVICE LABORATORIES DOUBLED OVER THE TWO YEARS PRIOR TO
SUMMER 1979. THIS INCREASE IS A REFLECTION OF HOW RAPIDLY ADDITIONAL
LABORATORY CAPACITY BECOMES AVAILABLE TO MEET DEMAND.
THUS, SUFFICIENT CAPACITY APPEARS TO EXIST, ESPECIALLY IF THE
EXISTING EQUIPMENT IS USED ON A DOUBLE SHIFT BASIS.
A. GENERAL. EPA IS EXEMPTING ANY BUSIESS WIT ANNUAL SALES LESS THAN
$100,000 (IN SECOND QUARTER 1980 DOLLARS) FRO THE REQUIREMENT TO TEST
FOR THE ORGANIC TOXIC POLLUTANTS. TO QUALIFY FOR THE EXEMPTION THE
PERMIT APPLICANT MUST SUBMIT TO THE PERMITTING AUTHOFITY ANNUAL SALES
FIGURES FOR THE MOST RECENT THREE YEARS. THE AVERAGE OF THOSE THREE
YEARS MUST BE LESS THAN $100,000 FOR THE APPLICANT TO QUALIFY.
IN DEVELOPING THE $100,000 CEILING FOR THIS EXEMPTION, THE AGENCY
USED AS A GUIDELINE ITS FINAL REPORT IMPLEMENTING EXECUTIVE ORDER 12044
(44 FR 30988, MAY 29, 1979). THIS REPORT INDICATES THAT AN ANALYSIS OF
THE POTLNTIAL ECONOMIC IMPACT SHOULD BE CONDUCTED WEN THE ADDITIONAL
COSTS OF A REGULATION EXCEED 5% OF A PRODUCT'S SELLING PRICE. IN THIS
INSTANCE, THE AGENCY IS USING 5% OF ANNUAL SALES AS AN INDICATOR THAT TE
REPORTING REQUIREMENTS MAY HAVE AN ADVERSE IMPACT ON A FIRM.
AS NOTED ABOVE, THE AVERAGE COSTS OF THE APPLICATION REQUIREMENTS ARE
$3,550 FOR SAMPLING AND ANALYSIS OF ORGANIC TOXIC POLLUTANTS. THE
INCREMENTAL UNIT REPORTING COSTS FOR PRIARY INDUSTRY MINOR DISCHARGERS,
$1,250 (SEE TABLE VII ABOVE), ARE EXPECTED TO BE MORE TYPICAL OF THE
SMALL BUSINESS FIRM THAN TE REPORTING COSTS OF THE PRIMARY INDUSTRY
MAJOR DISCHARGER. THE SUME OF THESE ANALYTICAL AND REPORTING COSTS IF
APPROXIMATELY $5,000. THIS WOULD EXCEED 5% OF ANNUAL SALES IF A FIRM
HAS ANNUAL SALES OF $100,U00 OR LESS.
BASED ON DATA SECURED BY THE AGENCY DUFING TE DEVELOPMENT OF EFFLULNT
GUIDELINES, THE AGCNCY ESTIMATES THAT BETWEEN 2 AND 5% OF PRIMARY
INDUSTRY APPLICANTS WILL BE ELIGIBLE FOR THE EXEMPTION FROM THE SAMPLING
AND ANALYSIS REQUIREMLNTS FOR THE ORGANIC TOXIC POLLUTANTS IN PROCESS
WASTEWATCR. THE TYPICAL SAVINGS FOF THE INDIVIDUAL APPLICANT ARE
EXPECTED TO BE ON THE ORDER OF $4,100, WHICH IS THE SUM OF THE COST OF
ANALYSIS FOR ORGANIC TOXICS AND TE REPORTING COSTS ASSOCIATED WITH
MANAGING THE ORGANIC TOXICS DATA. THE ESTIMATED TOTAL SAVINGS FROM THIS
EXEMPTION ARE EXPECTED TO 0E BETWEEN $1 MILLION AND $2 MILLION. THESE
REDUCTIONS IN THE TOTAL NUMBER OF APPLICANTS PERFORMING TE SAMPLING AND
ANALYSIS OF DISCHARGES FOR THE ORGANIC TOXIC POLLUTANTS HAVE NOT BEEN
TAKEN INTO ACCOUNT IN THE CALCULATION OF THE TOTAL INCREMENTAL COST OF
THIS REGULATION.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 029 OF 74
COSTLE D M ADMINISTRATOR
EPA
113753
REGULATION
IT SHOULD BE NOTED THAT THIS EXEMPTION DOES NOT PRECLUDE THE
PERMITTING AUTHORITY FROM EXERCISING ANY OF ITS OPTIONS TO OBTAIN
INFORMATION ON ORGAIC TOXIC POLLUTANTS UNDER SECTION 308 OF CWA.
HOWEVER, THE AGENCY EXPECTS THAT PERMITTING AUTORITIES WILL NEED TO
EXERCISE THOSE OPTIONS IN A SMALL NUM0ER OF CASES, BECAUSE THESE
APPLICANTS GENERALLY EERT A MINOR ENVIRONMENTAL IMPACT.
B. COAL MINES. EPA HAS FASHIONED A SEPARATE EXEMPTION FOR SMALL COAL
MINES WHICH IS SOMEWHAT ANALOGOUS TO THE GENERAL SMALL BUSINESS
EXEMPTION DISCUSSED IN THE PRECEDING SECTION. COAL MINES WHICH ARE
LIKELY TO PRODUCE LESS THAN 100,00U TONS OF COAL PER YEAR, BASED ON
PREDICTED OR HISTORICAL PRODUCTION FIGURES, ARE NOT REQUIRED TO TEST FOR
ORGANIC TOXIC POLLUTANTS.
IN SECTION 507 OF THE SURFACE MINING CONTROL AND RECLAMATION ACT OF
1977 (SMCRA), CONGRESS ESTABLISHED A SUBSTANTIAL SET OF APPLICATION
REQUIREMENTS FOR COAL MINES, INCLUDING IN PART A DESCRIPTION OF MINING
METHODS; MAPS OF LAND TO BE AFFECTED; IDENTIFICATION OF AFFECTED
WATERSHEDS; A DETERMINATION OF PROBABLE HYDROLOGIC CONSEQUENCES OF
MINING AND RECLAMATION OPERATIONS; RESULTS OF TEST BORINGS OR CASE
SAMPLINGS; ANALYSES OF CHEMICAL PROPERTIES OF THE COAL; THE SULFUR
CONTENT OF COAL SEAMS; CHEMICAL ANALYSES OF POTENTIALLY ACID OR TOXIC
FORMING SECTIONS OF THE OVERBURDEN; AND CHEMICAL ANALYSES OF THE
STRATUM IMMEDIATELY UNDERNEATH THE COAL TO BE MINED.
DUE TO THE APPROPRIATELY EXTENSIVE APPLICATION REQUIREMENTS OF SMCRA,
EPA IS SEEKING TO MINIMIZE ITS REQUESTS FOR EITHER DUPLICATIVE OR OVERLY
BURDENSOME INFORMATION. THIS IS PART OF THE BROAD EFFORTS BY EPA AND
THE DEPARTMENT OF INTERIOR'S OFFICE OF SURFACE MINING (OSM), WHICH
REGULATES COAL MINLS UNDER SMCRA (SEE 30 CFR CHAPTER VII), TO COORDINATE
THEIR PERMITTING AND OTHER ACTIVITIES. SEE, E.G., 44 FR 55322,
SEPTEMBER 25, 1979 (ANNOUNCING THE AVAILABILITY FOR PUBLIC COMMENT OF A
DRAFT MEMORANDUM OF UNDEFSTANDING ON PERMIT COORDINATION BETWEEN EPA AND
OSM). EPA HAS THEREFORE DECIDED TO REQUIRE TESTING FOR ORGANIC TOXIC
POLLUTANTS ONLY IN THE CASE OF LARGE COAL MINES, WHOSE DISCHARGES, IF
TOXIC, ARE LIKELY TO HAVE ORE SIGNIFICANT IMPACT ON RECEIVING WATERS
THAN THOSE OF SMALL MINES. IN ADDITION, THEY SHOULD GENERALLY BE ABLE
TO AFFORD BOTH TO PROVIDE THE INFORMATION REQUIRED UNDER SMCRA AND TO
TEST FOR THE ORGANIC TOXIC POLLUTANTS.
IN SELECTING 1U0,000 TONS ANNUAL PRODUCTION AS THE CRITERION FOR
DISTINGUISHING LARGE COAL MINES FROM SMALL ONES, EPA WAS GUIDED BY
SECTIONS 502(C) AND 507(C) OF SMCRA. SECTION 5U7(C) PROVIDES THAT
CERTAIN HYDROLOGICAL AND OTHER INFOFMATION SHALL, UPON WRITTEN REQUEST
OF THE OPERATOR OF A SMALL COAL MINE, BE DEVELOPED BY A LA0ORATORY AND
PAID FOR BY THE REGULATING AUTHORITY RATHER THAN BY THE COAL MINE. THE
CUTOFF USED IN THAT SECTION IS 100,000 TONS ANNUAL PRODUCTION. SECTION
502(C) USES THE SAME CUTOFF TO PROVIDE SMALL COAL MINES WITH AN EXTENDED
TRANSITION PERIOD TO COMPLY WITH THE INITIAL REGULATORY PROGRAM UNDER
SMCRA. EPA FEELS THAT CUTOFF SELECTED BY CONGRESS IN SECTIONS 502(C)
AND 507(C) OF SMCRA IS SIMILARLY APPROPFIATE HERE.
EPA EXPECTS THAT THE EXEMPTION FOR SMALL COAL MINES WILL EXEMPT
APPROXIMATELY 80% OF ALL COAL MINE APPLICANTS. BECAUSE THESE SMALL COAL
MINES PRODUCE ONLY ABOUT 20% OF ALL COAL PRODUCED IN THE UNITED STATES,
DISCHARGES FROM LARGER MINES PRODUCING 8U% OF OUR NATION'S COAL WILL
REMAIN SUBJECT TO THE ORGANIC TOXIC POLLUTANT TESTING REQUIREMENTS.
(PERCENTAGES STATED IN THIS PARAGRAPH ARE BASED UPON FIGURES 2 AND 3 ON
PAGES 6 AND 7 OF OSM'S FINAL REGULATORY ANALYSIS, OSM-RA-A, MARCH 1979.)
THE ESTIMATED TOTAL SAVINGS FROM THIS EXEMPTION ARE EXPECTED TO BE
APPROXIMATELY $8 MILLION, WHICH WAS NOT TAKEN INTO ACCOUNT IN TABLE IX.
APPLICATIONS REQUIREMENTS:
SECTION 122.24 AND FORM 3
THE RCRA PERMIT PROGRAM DIFFERS FROM THE OTHER PERMIT PROGRAMS
COVERED BY THESE CONSOLIDATED APPLICATION FORMS IN PROVIDING FOR AN
APPLICATION IN TWO STAGES. SIX MONTHS AFTER THE PROMULGATION OF
REGULATIONS SETTING UP THE RCRA PROGRAM IN ITS INITIAL FORM, EVERY
FACILITY WHICH IS TREATING, STORING, OR DISPOSING OF HAZARDOUS WASTE
MUST FILE PART A OF THE PERMIT APPLICATION FORM. THESE INITIAL
REGULATIONS ARE BEING PROMULGATED TODAY. PART A OF THE PERMIT
APPLICATION CONSISTS OF FORMS 1 (DISCUSSED IN SECTION II OF THIS
PREAMBLE) AND 3 OF THE CONSOLIDATED PERMIT APPLICATION FORMS. FORM 3
TRACKS TE REGULATORY REQUIREMENTS OF 40 CFR 122.24. UPON FILING A PART
A PERMIT APPLICATION IN SATISFACTORY FORM, A HAZARDOUS WASTE MANAGEMENT
FACILITY (HWM FACILITY) BECOMES ENTITLED TO "INTERIM STATUS," WHICH
MEANS THAT IT IS NOT SUBJECT TO ENFORCEMENT FOR OPERATING WITHOUT A
PERMIT.
ABOUT A YEAR FROM NOW THE FULL RCRA PERMIT PROGRAM WILL BECOME
EFFECTIVE. FACILITIES MAY THEN BE REQUIRED BY THE PERMITTING AUTHORITY
TO COMPLETE THEIR PERMIT APPLICATIONS BY SUBMITTING PART B OF THE PERMIT
APPLICATION. PART B WILL ALSO BE SUBMITTED BY PERSONS WISING TO
CONSTRUCT AND OPERATE NEW HWM FACILITIES. THE PERMITTING AUTHORITY WILL
THEN PROCEED TO PROCESS THE APPLICATION AND ISSUE A PERMIT. PART B WILL
BE SUBMITTED AS A NARRATIVE; EPA IS NOT PROMULGATING A FORM FOR IT.
ONLY LIMITED PORTIONS OF THE REQUIREMENTS FOR PART B OF THE PERMIT
APPLICATION ARE BEING PROMULGATED TODAY. THEY ARE SET FORTH AT 40 CFR
122.25. THE REMAINING PORTIONS WILL BE PROMULGATED WITH THE REST OF THE
INITIAL SET OF RCRA REQUIREMENTS IN THE FALL OF 198U.
FORM 3 IS REQUIRED TO BE USED PRESENTLY BY ALL EXISTING HWM
FACILITIES AND BY NEW HWM FACILITIES SEEKING EPA PERMITS. UNDER RCRA,
STATES MAY IN THE FUTURE OPERATE THE PERMIT PROGRAM. ALTHOUGH EPA
ENCOURAGES STATES WITH APPROVED RCRA PERMIT PROGRAMS TO USE THE FEDERAL
APPLICATION FORMS, OR FORMS AS SIMILAR TO THOSE FORMS AS POSSIBLE, IT IS
NOT REQUIRING THE USE OF EPA FORMS. STATES MAY USE THEIR OWN FORMS,
SUBJECT TO EPA APPROVAL, PROVIDED THAT THOSE FORMS INCORPORATE THE THE
APPLICATION REQUIREMENTS OF 40 CFR PART 122, SUBPART B.
THE ABOVE IS A SIMPLE SKETCH OF THE BASIC FEATURES OF THE RCRA PERMIT
PROGRAM. A FAR MORE DETAILED DESCRIPTION IS CONTAINED IN 40 CFR PARTS
122, 123 AND 124, AND THE PREAMBLES TO THEM, PUBLISHED ELSEWHERE IN
TODAY'S FEDERAL REGISTER. THE GENERAL OUTLINES OF THE PROGRAM WILL NOT
BE DISCUSSED FURTHER HERE.
INSTEAD, THE BALANCE OF THIS PREAMBLE DISCUSSED THE COMMENTS RECEIVED
ON THE PART A APPLICATION REQUIREMENTS WICH ARE SPECIFIC TO RCRA, NAMELY
THE COMMENTS ON FORM 3 OF THE CONSOLIDATED APPLICATION FORMS (PART A).
COMMENTS ON THE PROVISIONS OF 40 CFR 122.24, WHIC DISCUSSES PART A, ARE
ALSO DISCUSSED. HOWEVER, COMMENTS ON PART B APPLICATION REQUIREMENTS
ARE DISCUSSED IN PART 122 AND NOT HERE, BOTH BECAUSE THERE IS NO SET
"FORM" FOR PART B AND BECAUSE TE COMPLETE REQUIREMENTS HAVE NOT YET BEEN
PROMULGATED.
PROBABLY THE SINGLE POINT MOST EMPHASIZED IN THE COMMENTS ON FORM 3
WAS THAT IT WAS TOO LONG AND CUMBERSOME TO FILL OUT. COMMENTERS
STRESSED TAT EPA WOULD BE RECEIVING MANY THOUSANDS OF THESE FORMS IN A
VERY SHORT TIME, AT THE SAME TIME THAT OTHER ASPECTS OF THE RCRA PROGRAM
WERE STARTING UP. THEREFORE, COMMENTERS FELT, EPA WOULD PRO0ABLY NOT
HAVE THE TIME TO REVIEW EXTENSIVE FORMS IN DETAIL; THUS THE INFORMATION
WOULD NOT SERVE A SIGNIFICANT REGULATORY PURPOSE AND WOULD BE IN
CONFLICT WITH CONGRESSIONAL INTENT THAT INTERIM STATUS BE RELATIVELY
EASY TO APPLY FOR.
EPA AGREES WITH THESE COMMENTS AND HAS ACCEPTED MANY OF THEM.
SPECIFICALLY:
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 030 OF 74
COSTLE D M ADMINISTRATOR
EPA
113754
REGULATION
1. EPA HAS REDUCED THE SPECIFICITY WITH WHICH WASTE MUST BE
DESCRIBED. THE PROPOSAL WOULD HAVE REQUIRED THE DOT SHIPPING NAME, THE
EPA-ASSIGNED HAZARDOUS WASTE NUMBER, AND THE COMMO NAME FOR ALL WASTES.
IN THE FINAL VERSION, EPA WILL REQUIRE TE EPA NUMBER ONLY.
2. THE PROPOSAL WOULD HAVE REQUIRED A LISTING OF THE EXACT QUANTITY
OF EACH TYPE OF WASTE TO BE HANDLED AT TE FACILITY. IN RESPONSE TO
COMMENTS, THIS HAS BEEN CHANGED TO AN ESTIMATE OF THE QUANTITIES.
3. THE REQUIREMENTS FOR SUBMITTING "ALL AVAILABLE" DRAWINGS AND
SPECIFICATIONS RELATING TO A HWM FACILITY, CONTAINED IN THE PROPOSAL,
HAS BEEN GREATLY CUT BACK. ALL THAT WILL .OW BE REQUIRED IS A SCALE
DRAWING AND PHOTOGRAPHS OF THE EXISTING STRUCTURES. EPA AGREED WITH THE
COMMENTERS THAT ARGUED THAT THE PROPOSED REQUIREMENTS COULD HAVE
RESULTED IN THE SUBMISSION OF VAST QUANTITIES OF PAPER THAT WOULD HAVE
HAD LITTLE PRACTICAL REGULATO,Y USE.
4. THE REQUIREMENT TO SUBMIT THE ZONING STATUS OF THE SITE SET FORTH
IN THE PROPOSAL HAS BEEN DFOPPED, AS SOME COMMENTERS SUGGESTED. EPA
ASSUMES THAT AS A GENERAL RULE EXISTING FACILITIES CONFORM TO THE
APPLICABLE ZONING REQUIREENTS AND THAT APPLICATIONS FOR NEW FACILITIES
AS A PRACTICAL MATTER WILL ONLY BE FILED FOR LOCATIONS WHERE THE LOCAL
LAND USE LAWS WOULD PERMIT IT. ACCORDINGLY, NO GENERAL REGULATORY
PURPOSE WOULD BE SERVED BY REQUIRING THIS INFORMATION TO BE LISTED IN
ALL CASES. EPA ACKNOWLEDGES THAT THERE MAY BE CASES WHERE ZONING
QUESTIONS MAY BECOME EXTREMELY IMPORTANT TO A DECISION ON AN INDIVIDUAL
FACILITY, AND WHERE QUESTIONS OF FEDERAL PRE-EMPTION MAY ARISE. THE
PREAMBLE TO THE PART 123 REGULATIONS DISCUSSES SOME OF THE POINT
INVOLVED. HOWEVER, THOSE INSTANCES SHOULD BE RARE ENOUGH TO PERMIT THE
NECESSAFY INFORMATION TO BE GATHERED ON A CASE-BY-CASE BASIS.
5. THERE WILL NO LONGER BE SPECIAL REQUIREMENTS FOR EXPERIMENTAL OR
HEALTH CARE FACILITIES SINCE THOSE SPECIAL PERMIT CATEGORIES HAVE BEEN
DROPPED FROM THE FINAL REQGULATIONS.
HOWEVER, EPA HAS NOT ACCEPTED ALL THE SUGGESTIONS FOR SIMPLIFICATION
AND IN SOME CASES HAS ADDED ITEMS TO THE FORM AS PROPOSED OR HAS CHANGED
ITEMS WHILE LEAVING BASIS SUBSTANTIVE REQUIREMENTS IN PLACE.
SPECIFICALLY, EPA WILL STILL REQUIRE A LIST OF THE EXACT WASTES THAT
WILL BE HANDLED IN EACH FACILITY, BROKEN DOW BY EPA CODE NUMBER, AND A
LIST OF THE TREATMENT, STORAGE, AND DISPOSAL METHODS THAT WILL BE USED.
THE LATTER REQUIREMET REPLACES THE ONE IN THE PROPOSAL FOR LISTING A
"HANDLING CODE."
THIS INFORMATION IS NEEDED TO ESTABLISH HOW THE EXISTING PATTERN OF
HWM FACILITIES DEALS WITH THE NATIONAL "UNIVERSE" OF HAZARDOUS WASTES
WHICH WILL HAVE BEEN DEFINED AT THE SAME TIME. THAT INFORMATION WILL
TELL EPA WHICH FACILITIES ARE MOST IN NEED OF REGULATORY ATTENTION (FOR
EXAMPLE, BECAUSE THEY ARE DEALING WITH LARGE QUANTITIES OF WASTES, OR
BECAUSE THE WASTES THEY DEAL WIT ARE PARTICULARLY HAZARDOUS, OR BECAUSE
THEIR TREATMENT, STORAGE, OR DISPOSAL METHODS FROM THE DESCRIPTION GIVEN
SEEM OPEN TO QUESTION).
IN ADDITION TO THE ABOVE, SEVERAL LESS SIGNIFICANT CHANGES HAVE BEEN
MADE IN FOFM 3:
1. A LISTING OF THE LATITUDE AND LONGITUDE OF EACH FACILITY IS NOW
REQUIRED. THIS WILL FURNISH EPA WIT MORE PRECISE DATA ON THE LOCATION
OF HWM FACILITIES.
2. THE PROPOSED FORM WOULD HAVE REQUIRED APPLICANTS TO SPECIFY
WHETHER THE FACILITY WAS EXISTING, PROPOSED, OR UNDER CONSTRUCTION.
THIS REQUIREMENT HAS BEEN REPLACED IN THE FINAL FORM WITH A REQUIREMENT
TO LIST WHETHER THE FACILITY IS NEW OR EXISTING, WHETHER THE PERMIT
APPLICATION IS NEW OR REVISED, AND WHETHER TE FACILITY HAS A RCRA PERMIT
OR INTERIM STATUS. THESE ARE THE PERMITTING CATEGORIES WHICH THE
STATUTE AND TE IMPLEMENTING REGULATIONS LAY DOWN, AND TO REQUIRE TE
FORMS TO REFLECT THEM WILL MAKE IT EASIER TO HANDLE THOSE FORMS AND
ASSIGN THE ACTION REQUIRED UNDER THEM TO ITS PROPEF CATEGORY.
3. APPLICANTS WITH EXISTING FACILITIES ARE NOW REQUIRED TO INDICATE
THE DATE THAT OPERATION BEGAN OR THE DATE CONSTRUCTION COMMENCED AT
THEIR FACILITY. THIS INFORMATION WILL HELP EPA VERIFY THAT THE FACILITY
QUALIFIES FOR INTERIM STATUS. FOR NEW FACILITIES, APPLICANTS ARE
REQUIRED TO PROVIDE THE DATE THAT OPERATION IS EXPECTED TO BEGIN. THIS
INFORMATION WILL ASSIST EPA IN SETTING PRIORITIES FOR PROCESSING
APPLICATIONS FOR NEW FACILITIES.
4. AS DISCUSSED IN THE PREAMBLE TO PART 122, RCRA PERMITS BIND BOTH
THE OWNER, AND THE OPERATOR OF HWM FACILITIES WHERE THOSE TWO PERSONS
ARE DIFFERENT. ACCORDINGLY, THE FOR PROVIDES FOR THE SIGNATURE OF BOTH
THESE PERSONS.
IMPACT OF FORM 3 REPORTING REQUIREMENTS. IT IS ESTIMATED THAT
APPROXIMATELY 26,400 OWNERS AND OPERATORS OF HAZARDOUS WASTE MANAGEMENT
FACILITIES WILL BE REQUIRED TO COMPLETE AND SUBMIT FORM 3. THE
ESTIMATED WORKLOAD AND ECONOMIC BURDEN ON THESE APPLICANTS IS SUMMARIZED
IN TA0LE TI.
TABLE XI. -- SUMMARY OF FORM 3 IMPACT
TABLE OMITTED.
EPA WILL REVIEW THE USEFULNESS AND CONTINUED NEED FOR THE
CONSOLIDATED APPLICATION FORMS NO LATER THAN 5 YEARS FROM THEIR
EFFECTIVE DATE. THE REVIEW WILL CONSIDER THE EFFECTIVENESS OF THE
CONSOLIDATED FORMAT; THE USEFULNESS OF THE REQUIRED INFORMATION IN
ISSUING PERMITS AND MEETING OTHER PROGRAM NEEDS; THE NEED TO CHANGE
CERTAIN REQUIREMENTS TO REFLECT STATUTORY AND REGULATORY CHANGES AND
CHANGING PROGRAM PRIORITIES; FINANCIAL AND ADMINISTRATIVE BURDENS
PLACED UPON EPA, STATE AGENCIES, AND THE REGULATED COMMUNITY; AND ANY
MORE EFFECTIVE OR LESS COSTLY ALTERNATIVE, TO FULFILL THE PURPOSES
INTENDED BY THE CURRENT APPLICATION REQUIREMENTS. THE REVIEW WILL BE
CONDUCTED, AS THE PRESENT REQUIREMENTS HAVE BEEN DEVELOPED, THROUGH
VARIOUS MEAS CALCULATED TO ENCOURAGE PARTICIPATION BY ALL INTERESTED
MEMBERS OF THE PUBLIC AS WELL AS BY PERMIT WRITERS AND PERMITTEES.
NOTE. -- EXECUTIVE ORDER 11821, AS AMENDED BY EXECUTIVE ORDER 11949,
AND OMB CIRCULAR A-197 REQUIRE THE PREPARATION OF ECONOMIC IMPACT
STATEMENTS FOR MAJOR REGULATIONS, DEFINED AS THOSE WITH INCREMENTAL
ANNUAL IMPACTS EXCEEDING ONE UNDRED MILLION DOLLARS. AS DEMONSTRATED IN
THIS PREAMBLE, TE ENVIRONMENTAL PROTECTION AGENCY HAS EXAMINED COSTS AND
ECONOMIC IMPACTS AS PART OF ITS DECISION-MAKING PROCESS. IT HAS
DETERMINED, BASED ON THIS ANALYSIS, THAT THIS DOCUMENT DOES NOT
CONSTITUTE A MAJOR REGULATION REQUIRING THE PREPARATION OF A SEPARATE
ECONOMIC IMPACT STATEMENT. HOWEVER, IT BELIEVES THAT THE DETAILED
ANALYSIS CONTAINED IN SECTIO. III-F OF THIS PREAMBLE COMPLIES WITH THE
SPIRIT AND PURPOSE OF THE EXECUTIVE ORDERS AND OMB CIRCULAR.
DATED: MAY 2, 198U.
DOUGLAS M. COSTLE, ADMINISTRATOR.
THE CONSOLIDATED PERMIT APPLICATION FORMS ARE:
FORM 1 -- GENERAL INFORMATION
FORM 2 -- DISCHARGES TO SURFACE WATER (NPDES PERMITS) A. PUBLICLY
OWNED TREATMENT WORKS (RESERVED) B. CONCENTRATED ANIMAL FEEDING;
OPERATIONS AND AQUATIC ANIMAL PRODUCTION FACILITIES C. EXISTING
MANUFACTURING, COMMERCIAL, MINING, AND SILVICULTURAL OPERATIONS D. NEW
MANUFACTURING, COMMERCIAL, MINING AND SILVICLTURAL OPERATIONS (RESERVED)
FORM 3 -- HAZARDOUS WASTE APPLICATION FOR (RCRA PERMITS)
FORM 4 -- UNDERGROUND INJECTION OF FLUIDS (UIC PERMITS) (RESERVED)
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 031 OF 74
COSTLE D M ADMINISTRATOR
EPA
113755
REGULATION
/1/ PLEASE NOTE THAT SOME OF THESE FORMS ARE NOT YET AVAILABLE FOR
USE AND ARE LISTED AS "RESERVED" AT THE BEGINNING OF THESE INSTRUCTIONS.
CONTACT YOUR EPA REGIONAL OFFICE FOR INFORMATION ON CURRENT APPLICATION
REQUIREMENTS AND FORMS.
TABLE 2. -- FILING DATES FOR PERMITS
TABLE OMITTED.
FORM 5 -- AIR EMISSIONS IN ATTAINMENT AREAS (PSD PERMITS) (RESERVED)
TABLE OF CONTENTS OF THIS PACKET
A. GENERAL INSTRUCTIONS
B. INSTRUCTIONS FOR FORM 1
C. ACTIVITIES WHICH DO NOT REQUIRE PERMITS
D. GLOSSARY
E. FORM 1
WHO MUST APPLY?
WITH THE EXCEPTIONS DESCRIBED IN SECTION C OF THESE INSTRUCTIONS,
FEDERAL LAWS PROHIBIT YOU FROM CONDUCTING ANY OF THE FOLLOWIG ACTIVITIES
WITHOUT A PERMIT.
NPDES (NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM UNDER THE
CLEAN WATER ACT, 33 U.S.C. 1251). DISCHAFGE OF POLLUTANTS INTO THE
WATERS OF THE UNITED STATES.
RCRA (RESOURCE CONSERVATION AND RECOVERY ACT, 42 U.S.C. 690,).
TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS WASTES.
UIC (UNDERGROUND INJECTION CONTROL UNDER TE SAFE DRINKING WATER ACT,
42 U.S.C. 300F). INJECTION OF FLUIDS UNDERGROUND BY GRAVITY FLOW OR
PUMPING.
PSD (PREVENTION OF SIGNIFICANT DETERIORATION UNDER THE CLEAN AIR ACT,
72 U.S.C. 7401). EMISSION OF AN AIR POLLUTANT BY A NEW OR MODIFIED
FACILITY IN OR NEAR AN AREA WHICH HAS ATTAINED THE NATIONAL AMBIENT AIR
QUALITY STANDARDS FOR THAT POLLUTANT.
EACH OF THE ABOVE PERMIT PROGRAMS IS OPERATED IN ANY PARTICULAR STATE
BY EITHER THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (EPA) OR BY
AN APPROVED STATE AGENCY. YOU MUST USE THIS APPLICATION FORM TO APPLY
FOR A PERMIT FOR THOSE PROGRAMS ADMINISTERED BY EPA. FOR THOSE PROGRAMS
ADMIISTERED BY APPROVED STATES, CONTACT THE STATE ENVIRONMENTAL AGENCY
FOR THE PROPER FORMS.
IF YOU HAVE ANY QUESTIONS ABOUT WHETHER YOU NEED A PERMIT UNDER ANY
OF THE ABOVE PROGRAMS, OR IF YOU NEED INFORMATION AS TO WHETHER A
PARTICULAR PROGRAM IS ADMINISTERED BY EPA OR A STATE AGENCY OR IF YOU
NEED TO OBTAIN APPLICATION FORMS, CONTACT YOUR EPA REGIONAL OFFICE
(LISTED IN TABLE 1).
UPON YOUR REQUEST, AND BASED UPON INFORMATION SUPPLIED BY YOU, EPA
WILL DETERMINE WHETHER YOU ARE REQUIFED TO OBTAIN A PERMIT FOR A
PARTICULAR FACILITY. CONTACT YOUR EPA REGIONAL OFFICE (LISTED IN TABLE
1).
UPON YOUR REQUEST, AND BASED UPON INFORMATION SUPPLIED BY YOU, EPA
WILL DETERMINE WHETHER YOU ARE REQUIRED TO OBTAIN A PERMIT FOR A
PARTICULAR FACILITY. CONTACT YOUR EPA REGIONAL OFFICE (LISTED IN TABLE
1). BE SURE TO CONTACT EPA IF YOU HAVE A QUESTION, BECAUSE FEDERAL LAWS
PROVIDE THAT YOU MAY BE HEAVILY PENALIZED IF YOU DO NOT APPLY FOR A
PERMIT WHEN A PERMIT IS REQUIRED.
FORM 1 OF THE EPA CONSOLIDATED APPLICATION FORMS (ATTACHED TO THESE
INSTRUCTIONS) COLLECTS GENERAL INFORMATION APPLYING TO ALL PROGRAMS.
YOU MUST FILL OUT FORM 1 REGARDLESS OF WHIC PERMIT YOU ARE APPLYING FOR.
IN ADDITION, YOU MUST FILL OUT ONE OF THE SUPPLEMENTARY FORMS (FORMS
2-5) FOR EACH PERMIT NEEDED UNDER EACH OF THE ABOVE PROGRAMS. ITEM II
OF FORM 1 WILL GUIDE YOU TO THE APPROPRIATE SUPPLEMENTARY FORMS.
YOU SHOULD NOTE THAT THERE ARE CERTAIN EXCLUSIONS TO THE PERMIT
REQUIREMENTS LISTED ABOVE. THE EXCLUSIONS ARE DESCRIBED IN DETAIL IN
SECTION C OF THESE INSTRUCTIONS. IF YOUR ACTIVITIES ARE EXCLUDED FROM
PERMIT REQUIREMENTS THEN YOU DO NOT NEED TO COMPLETE AND RETURN ANY
FORMS.
NOTE: CERTAIN ACTIVITIES NOT LISTED ABOVE ALSO ARE SUBJECT TO
EPA-ADMINISTERED ENVIRONMENTAL PERMIT REQUIREMENTS. THESE INCLUDE
PERMITS FOR OCEAN DUMPING, DREDGED OR FILL MATERIAL DISCHARGING, AND
CERTAIN TYPES OF AIR EMISSIONS. CONTACT YOUR EPA REGIONAL OFFICE FOR
FURTHER INFORMATION.
REGION I
PERMIT CONTACT, ENVIRONMENTAL AND ECONOMIC IMPACT OFFICE, U.S.
ENVIRONMENTAL PROTECTION AGENCY, JOHN F. KENNEDY BUILDING, BOSTON,
MASSACHUSETTS 02203, (617)223-4635, FTS 223-4635. CONNECTICUT, MAINE,
MASSACHUSETTS, NEW HAMPSHIRE, RHODE ISLAND, VERMONT.
REGION II
PERMIT CONTACT, PERMITS ADMINISTRATION BRANCH, ROOM 432, U.S.
ENVIRONMENTAL PROTECTION AGENCY, 26 FEDERAL PLAZA, NEW YORK, NEW YORK
10007, (212) 264-9880, FTS 264-9880. NEW JERSEY, NEW YORK, VIRGIN
ISLANDS, PUERTO RICO.
REGION III
PERMIT CONTACT (3 EN 23), U.S. ENVIRONMENTAL PROTECTION AGENCY, 6TH &
WALNUT STREETS, PHILADELPIA, PENNSYLVANIA 19106, (215) 597-8816, FTS
597-8816. DELAWARE, DISTRICT OF COLUMBIA, MARYLAND, PENSYLVANIA,
VIRGNIA, WEST VIRGINIA.
REGION IV
PERMIT CONTACT, PERMITS SECTION, U.S. ENVIRONMENTAL PROTECTION
AGENCY, 345 COURTLAND STREET, N.E., ATLANTA, GEORGIA 30365, (404)
881-2017, FTS 257-2017. ALABAMA, FLORIDA, GEORGIA, KENTUCKY,
MISSISSIPPI, NORTH CAROLINA, SOUTH CAROLINA, TENNESSEE.
REGION V
PERMIT CONTACT (5EP), U.S. ENVIRONMENTAL PROTECTION AGENCY, 230 SOUTH
DEARBORN STREET, CHICAGO, ILLINOIS 60604, (312) 353-2105, FTS 353-2105.
ILLINOIS, INDIANA, MICHIGAN, MINNESOTA, OHIO, WISCONSIN.
REGION VI
PERMIT CONTACT (6AEP), U.S. ENVIRONMENTAL PROTECTION AGENCY, FIRST
INTERNATIONAL BUILDING, 1201 ELM STREET, DALLAS, TEXAS 75270, (214)
767-2765, FTS 729-2765. ARKANSAS, LOUISIANA, NEW MEXICO, OKLAHOMA,
TEXAS.
REGION VII
PERMIT CONTACT, PERMITS BRANCH, U.S. ENVIRONMENTAL PROTECTION AGENCY,
324 EAST 11TH STREET, KANSAS CITY, MISSOURI L4106, (816) 758-5955, FTS
758-5955. IOWA, KANSAS, MISSOURI, NEBRASKA.
REGION VIII
PERMIT CONTACT (8E-WE), SUITE 103, U.S. ENVIRONMENTAL PROTECTION
AGENCY, 1816 LINCOLN STREET, DENVER, COLORADO 80203, (303) 837-4901, FTS
837-4901. COLORADO, MONTANA, NORTH DAKOTA, SOUTH DAKOTA, UTAH, WYOMING.
REGION IX
PERMIT CONTACT PERMITS BRANCH (E-4), U.S. ENVIRONMENTAL PROTECTION
AGENCY, 215 FREEMONT STREET, SAN FRANCISCO, CALIFORNIA 94105, (415)
556-3450, FTS 556-3450. ARIZONA, CALIFORNIA, HAWAII, NEVADA, GUAM,
AMERICAN SAMOA, TRUST TERRITORIES.
REGION X
PERMIT CONTACT (M/S 521), U.S. ENVIRONMENTAL PROTECTION AGENCY, 1200
6TH AVENUE, SEATTLE, WASHINGTON 98101, (206) 442-7176, FTS 399-7176.
ALASKA, IDAHO, OREGON, WASHINGTON.
WHERE TO FILE
THE APPLICATION FORMS SHOULD BE MAILED TO THE EPA REGIONAL OFFICE
WHOSE REGION INCLUDES THE STATE IN WHICH THE FACILITY IS LOCATED (SEE
TABLE 1).
IF THE STATE IN WHICH THE FACILITY IS LOCATED ADMINISTERS A FEDERAL
PERMIT PROGRAM UNDER WICH YOU NEED A PERMIT, YOU SHOULD CONTACT THE
APPROPRIATE STATE AGENCY FOR THE CORRECT FORMS. YOUR EPA REGIONAL
OFFICE (TABLE 1) CA TELL YOU TO WHOM TO APPLY AND CAN PROVIDE THE
APPROPRIATE ADDRESS AND PHONE NUM0ER.
WHEN TO FILE
BECAUSE OF STATUTORY REQUIREMENTS, THE DEADLINES FOR FILING
APPLICATIONS VARY ACCORDING TO THE TYPE OF FACILITY YOU OPERATE AND THE
TYPE OF PERMIT YOU NEED. THESE DEADLINES ARE AS FOLLOWS: /1/
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 032 OF 74
COSTLE D M ADMINISTRATOR
EPA
113756
REGULATION
FEDERAL REGULATIONS PROVIDE THAT YOU MAY NOT BEGIN TO CONSTRUCT A NEW
SOURCE IN THE NPDES PROGRAM, A NEW HAZARDOUS WASTE MANAGEMENT FACILITY,
A NEW INJECTION WELL OR A FACILITY COVERED BY THE PSD PROGRAM BEFORE THE
ISSUANCE OF A PERMIT UNDER TE APPLICABLE PROGRAM. PLEASE NOTE THAT IF
YOU ARE REQUIRED TO OBTAIN A PERMIT BEFORE BEGINNING CONSTRUCTION, AS
DESCRIBED ABOVE, YOU MAY NEED TO SUBMIT YOUR PERMIT APPLICATION WELL IN
ADVANCE OF AN APPLICABLE DEADLINE LISTED IN TABLE 2.
THE U.S. EPA DOES NOT REQUIRE A FEE FOR APPLYING FOR ANY PERMIT UNDER
THE CONSOLIDATED PERMIT PROGRAM. (HOWEVER, SOME STATES WHICH ADMINISTER
ONE OR MORE OF THESE PROGRAMS REQUIRE FEES FOR THE PERMITS WHICH THEY
ISSUE.)
INFORMATION CONTAINED IN THESE APPLICATION FORMS WILL, UPON REQUEST,
BE MADE AVAILABLE TO THE PUBLIC FOR INSPECTION AND COPYING. HOWEVER,
YOU MAY REQUEST CONFIDENTIAL TREATMENT FOR CERTAIN INFORMATION WHICH YOU
SUBMIT ON CERTAIN SUPPLEMENTARY FORMS. THE SPECIFIC INSTRUCTIONS FOR
EACH SUPPLEMENTARY FOR STATE WHAT INFORMATION ON THE FORM, IF ANY, MAY
BE CLAIMED AS CONFIDENTIAL AND WHAT PROCEDURES GOVERN TE CLAIM. NO
INFORMATION ON FORMS 1 AND 2 MAY BE CLAIMED AS CONFIDENTIAL.
UNLESS OTHERWISE SPECIFIED IN INSTRUCTIONS TO THE FORMS, EACH ITEM IN
EACH FORM MUST BE ANSWERED. TO INDICATED TAT EACH ITEM HAS BEEN
CONSIDERED, ENTER "NA," FOR NOT APPLICABLE, IF A PARTICULAR ITEM DOES
NOT FIT THE CIRCUMSTANCES OR CHARACTERISTICS OF YOUR FACILITY OR
ACTIVITY.
IF YOU HAVE PREVIOUSLY SU0MITTED INFORMATION TO EPA OR TO AN APPROVED
STATE AGENCY WHICH ANSWERS A QUESTION, YOU MAY EITER REPEAT THE
INFORMATION IN THE SPACE PROVIDED OR ATTACH A COPY OF THE PREVIOUS
SUBMISSION. SOME ITEMS IN THE FORM REQUIRE NARRATIVE EXPLANATION. IF
MORE SPACE IS NECESSARY TO ANSWER A QUESTION, ATTACH A SEPARATE SHEET
ENTITLED "ADDITIONAL INFORMATION."
THIS FORM MUST BE COMPLETED BY ALL APPLICANTS.
COMPLETING THIS FORM. PLEASE TYPE OR PRINT IN THE UNSHADED AREAS
ONLY. SOME ITEMS HAVE SMALL GRADUATION MARKS IN THE FILL-IN SPACES.
THESE MARKS INDICATE THE NUMBER OF CHAFACTERS THAT MAY BE ENTERED INTO
OUR DATA SYSTEM. THE MARKS ARE SPACED AT 1/6" INTERVALS WHICH
ACCOMMODATE ELITE TYPE (12 CHARACTERS PER INCH). IF YOU USE ANOTHER
TYPE YOU MAY IGNORE THE MARKS. IF YOU PRINT, PLACE EACH CHARACTER
BETWEE THE MARKS. ABBREVIATE IF NECESSARY TO STAY WITHIN THE NUMBER OF
CHARACTERS ALLOWED FOR EACH ITEM. USE ONE SPACE FOR BREAKS BETWEEN
WORDS, BUT NOT FOR PUNCTUATION MARKS UNLESS THEY ARE NEEDED TO CLARIFY
YOUR RESPONSE.
ITEM I. SPACE IS PROVIDED AT TE UPPER RIGHT HAND CORNER OF FORM 1
FOR INSERTION OF YOUR EPA IDENTIFICATION NUMBER. IF YOU HAVE AN
EXISTING FACILITY, ENTER YOUR IDENTIFICATION NUMBER. IF YOU DON'T KNOW
YOUR EPA IDENTIFICATION NUMBER, PLEASE CONTACT YOUR EPA REGIONAL OFFICE
(ABLE 1), WHICH WILL PROVIDE YOU WITH YOUR NUMBER. IF YOUR FACILITY IS
NEW (NOT YET CONSTRUCTED), LEAVE THIS ITEM BLANK.
ITEM II. ANSWER EACH QUESTION TO DETERMINE WICH SUPPLEMENTARY FORMS
YOU NEED TO FILL OUT. BE SURE TO CHECK THE GLOSSARY IN SECTION D OF
THESE INSTRUCTIONS FOR THE LEGAL DEFINITIONS OF THE BOLD FACED WORDS.
CHECK SECTION C OF THESE INSTRUCTIONS TO DETERMINE WETHER YOUR ACTIVITY
IS EXCLUDED FROM PERMIT REQUIREMENTS.
IF YOU ANSWER "NO" TO EVERY QUESTION, THEN YOU DO NOT NEED A PERMIT,
AND YOU DO NOT NEED TO COMPLETE AND RETURN ANY OF THESE FORMS.
IF YOU ANSWER "YES" TO ANY QUESTION, THEN YOU MUST COMPLETE AND FILE
THE SUPPLEMENTARY FORM BY THE DEADLINE LISTED IN TABLE 2 ALONG WITH THIS
FORM. (THE APPLICABLE FORM NUMBER FOLLOWS EACH QUESTION AND IS ENCLOSED
IN PARENTHESES.) YOU NEED NOT SUBMIT A SUPPLEMENTARY FORM IF YOU ALREADY
HAVE A PERMIT UNDER THE APPROPRIATE FEDERAL PROGRAM, UNLESS YOUR PERMIT
IS DUE TO EXPIRE AND YOU WISH TO RENEW YOUR PERMIT.
QUESTIONS (I) AND (J) OF ITEM II REFER TO MAJOR NEW OR MODIFIED
SOURCES SUBJECT TO PREVENTION OF SIGNIFICANT DETERIORATION (PSD)
REQUIREMENTS UNDER THE CLEAN AIR ACT. FOR THE PURPOSE OF THE PSD
PROGRAM, MAJOR SOURCES ARE DEFIED AS (1) SOURCES LI-TED IN TABLE 3 WHICH
HAVE THE POTENTIAL TO EMIT 100 TONS OR MORE PER YEAF EMISSIONS, AND (2)
ALL OTHER SOURCES WITH THE POTENTIAL TO EMIT 250 TONS OR MORE PER YEAR.
SEE SECTION C OF THESE INSTRUCTIONS FOR DISCUSSION OF EXCLUSIONS OF
CERTAIN MODIFIED SOURCES.
FOSSIL FUEL-FIRED STEAM GENERATORS OF MORE THAN 250 MILLION BTU PER
HOUR HEAT INPUT
COAL CLEANING PLANTS (WITH THERMAL DRYERS)
KRAFT PULP MILLS
PORTLAND CEMENT PLANTS
PRIMARY ZINC SMELTERS
IRON AND STEEL MILL PLANTS
PRIMARY ALUMINUM ORE REDUCTION PLANTS
PRIMARY COPPER SMELTERS.
MUNICIPAL INCINERATORS CAPABLE OF CHARGING MORE THAN 250 TONS OF
REFUSE PER DAY
HYDROFLUORIC ACID PLANTS
NITRIC ACID PLANTS
SULFURIC ACID PLANTS
PETROLEUM REFINERIES
LIME PLANTS
PHOSPHATE ROCK PROCESSING PLANTS
COKE OVEN BATTERIES
SULFUR RECOVERY PLANTS
CARBON 0LACK PLAN-S (FURNACE PROCESS)
PRIMARY LEAD SMELTERS
FUEL CONVERSION PLANTS
SINTERING PLANTS
SECONDARY METAL PRODUCTION PLANTS
CHEMICAL PROCESS PLANTS
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 033 OF 74
COSTLE D M ADMINISTRATOR
EPA
113757
REGULATION
FOSSIL FUEL BOILERS (OR COMBINATION THEREOF) TOTALING MORE THAN 250
MILLION BTU PER HOUR HEAT INPUT
PETROLEUM STORAGE AND TRANSFER UNITS WITH A TOTAL STORAGE CAPACITY
EXCEEDING 300,000 BARRELS
TACONITE ORE PROCESSING PLANTS
GLASS FIBER PROCESSING PLANTS
CHARCOAL PRODUCTION PLANTS.
ITEM III. ENTER THE FACILITY'S OFFICIAL OR LEGAL NAME. DO NOT USE A
COLLOQUIAL NAME.
ITEM IV. GIVE THE NAME, TITLE, AND WORK TELEPHONE NUMBER OF A PERSON
WHO IS THOROUGHLY FAMILIAR WITH TE OPERATION OF THE FACILITY AND WITH
THE FACTS REPORTED IN THIS APPLICATION AND WHO CAN BE CONTACTED BY
REVIEWING OFFICES IF NECESSARY.
ITEM V. GIVE THE COMPLETE MAILING ADDRESS OF THE OFFICE WHERE
CORRESPONDENCE SHOULD BE SENT. THIS OFTEN IS NOT THE ADDRESS USED TO
DESIGNATE THE LOCATION OF THE FACILITY OR ACTIVITY.
ITEM VI. GIVE THE ADDRESS OR LOCATION OF THE FACILITY IDENTIFIED IN
ITEM III OF THIS FORM. IF THE FACILITY LACKS A STREET NAME OR ROUTE
NUMBER, GIVE THE MOST ACCURATE ALTERNATIVE GEOGRAPHIC INFORMATION (E.G.,
SECTION NUMBER, QUARTER SECTION NUMBER, OR DESCRIPTION).
ITEM VII. LIST, IN DESCENDING ORDER OF SIGNIFICANCE, THE FOUR
4-DIGIT STANDARD INDUSTRIAL CLASSIFICATION (SIC) CODES WHICH BEST
DESCRIBE YOUR FACILITY IN TERMS OF THE PRINCIPAL PRODUCTS OR SERVICES
YOU PRODUCE OR PROVIDE. ALSO, SPECIFY EACH CLASSIFICATION IN WORDS.
THESE CLASSIFICATIONS MAY DIFFER FROM THE SIC CODES DESCRIBING THE
OPERATION GENERATING THE DISCHARGE, AIR EMISSIONS, OR HAZARDOUS WASTES.
SIC CODE NUMBERS ARE DESCRIPTIONS WHICH MAY BE FOUND IN THE "STANDARD
INDUSTRIAL CLASSIFICATION MANUAL" PREPARED BY THE EXECUTIVE OFFICE OF
THE PRESIDENT, OFFICE OF MANAGEMENT AND BUDGET, WHICH IS AVAILABLE FROM
THE GOVERNMENT PRINTING OFFICE, WASHINGTON, D.C. USE THE CURRENT
EDITION OF THE MANUAL. IF YOU HAVE ANY QUESTIONS CONCERNING THE
APPROPRIATE SIC CODE FOR YOUR FACILITY, CONTACT YOUR EPA REGIONAL OFFICE
(SEE TABLE 1).
ITEM VIII-A. GIVE THE NAME, AS IT IS LEGALLY REFERRED TO, OF THE
PERSON, FIRM, PUBLIC ORGANIZATION, OR ANY OTHER ENTITY WHICH OPERATES
THE FACILITY DESCRIBED IN THIS APPLICATION. THIS MAY OR MAY NOT BE THE
SAME NAME AS THE FACILITY. THE OPERATOR OF THE FACILITY IS THE LEGAL
ENTITY WHIC CONTROLS THE FACILITY'S OPERATION RATHER THAN THE PLANT OR
SITE MANAGER. DO NOT USE A COLLOQUIAL NAME.
ITEM VIII-B. INDICATE WHETHER THE ENTITY WHICH OPERATES THE FACILITY
ALSO OWNS IT BY MARKING THE APPROPRIATE BOX.
ITEM VIII-C. ENTER THE APPROPRIATE LETTEF TO INDICATE THE LEGAL
STATUS OF THE OPERATOR OF THE FACILITY. INDICATE "PUBLIC" FOR A
FACILITY SOLELY OWNED BY LOCAL GOVERNMENT"S) SUCH AS A CITY, TOWN,
COUNTY, PARISH, ETC.
ITEMS VIII-D-H. ENTER THE TELEPHONE NUMBER AND ADDRESS OF THE
OPERATOR IDENTIFIED IN ITEM VIII-A.
ITEM IX. INDICATE WHETHER THE FACILITY IS LOCATED ON INDIAN LANDS.
ITEM X. GIVE THE NUMBER OF EACH PRESENTLY EFFECTIVE PERMIT ISSUED TO
THE FACILITY FOR EACH PROGRAM OR, IF YOU HAVE PREVIOUSLY FILED AN
APPLICATION BUT HAVE NOT YET RECEIVED A PERMIT, GIVE THE NUMBER OF THE
APPLICATION, IF ANY. FILL IN THE UNSHADED AREA ONLY. IF YOU HAVE MORE
THAN ONE CURRENTLY EFFECTIVE PERMIT FOR YOUR FACILITY UNDER A PARTICULAR
PERMIT PROGRAM, YOU MAY LIST ADDITIONAL PERMIT NUMBERS ON A SEPARATE
SHEET OF PAPER. LIST ANY RELEVANT ENVIRONMENTAL FEDERAL (E.G., PERMITS
UNDER THE OCEAN DUMPING ACT, SECTION 404 OF THE CLEAN WATER ACT OR THE
SURFACE MINING CONTROL AND RECLAMATION ACT), STATE (E.G., STATE PERMITS
FOR NEW AIR EMISSION SOURCES IN NONATTAINMENT AREAS UNDER PART D OF THE
CLEAN AIR ACT OR STATE PERMITS UNDER SECTION 404 OF THE CLEAN WATER ACT)
OR LOCAL PERMITS OR APPLICATIONS UNDER "OTER".
ITEM XI. PROVIDE A TOPOGRAPIC MAP OR MAPS OF THE AREA EXTENDING AT
LEAST TO ONE MILE BEYOND THE PROPERTY BOUNDARIES OF THE FACILITY WHICH
CLEARLY SOW THE FOLLOWING:
THE LEGAL BOUNDARIES OF THE FACILITY;
THE LOCATION AND SERIAL NUMBER OF EACH OF YOUR EXISTING AND PROPOSED
INTAKE AND DISCHARGE STRUCTURES;
* ALL HAZARDOUS WASTE MANAGEMENT FACILITIES;
* EACH WELL WHERE YOU INJECT FLUIDS UNDERGROUND; AND
* ALL SPRINGS AND SURFACE WATER BODIES IN THE AREA, PLUS ALL DRINKING
WATER WELLS WITHIN 1/4 MILE OF THE FACILITY WHICH ARE IDENTIFIED IN THE
PUBLIC RECORD OR OTHERWISE KNOWN TO YOU.
IF AN INTAKE OR DISCHARGE STRUCTURE, HAZARDOUS WASTE DISPOSAL SITE,
OR INJECTION WELL ASSOCIATED WITH THE FACILITY IS LOCATED MORE THAN ONE
MILE FROM THEPLANT, INCLUDE IT ON THE MAP, IF POSSIBLE. IF NOT ATTACH
ADDITIONAL SHEETS DESCRIBING THE LOCATION OF THE STRUCTURE, DISPOSAL
SITE, OR WELL, AND IDENTIFY THE U.S. GEOLOGICAL SURVEY (OR OTHER) MAP
CORRESPONDING TO THE LOCATION.
ON EACH MAP, INCLUDE THE MAP SCALE, A MERIDIAN ARROW SHOWING NORTH,
AND LATITUDE AND LONGITUDE AT THE NEAREST WHOLE SECOND. ON ALL MAPS OF
RIVERS, SHOW THE DIRECTION OF THE CURRENT, AND IN TIDAL WATERS, SHOW THE
DIRECTIONS OF THE EBB AND FLOW TIDES. USE A 7 1/2 MINUTE SERIES MAP
PUBLISHED BY THE U.S. GEOLOGICAL SURVEY, WHICH MAY BE OBTAINED THROUGH
THE U.S. GEOLOGICAL SURVEY OFFICES IN WASHINGTON, D.C., DENVER,
COLORADO, OR ANCHORAGE, ALASKA. IF A 7 1/2 MINUTE SERIES MAP HAS NOT
BEEN PUBLISHED FOR YOUR FACILITY SITE, THEN YOU MAY USE A 15 MINUTE
SERIES MAP FROM THE U.S. GEOLOGICAL SURVEY. IF NEITHER A 7 1/2 NOR 15
MINUTE SERIES MAP HAS BEEN PUBLISHED FOR YOUR FACILITY SITE, USE A PLAT
MAP OR OTHER APPROPRIATE MAP, INCLUDING ALL TE REQUESTED INFORMATION;
IN THIS CASE, BRIEFLY DESCRIBE LAND USES IN THE MAP AREA (E.G.,
RESIDENTIAL, COMMERCIAL).
YOU MAY TRACE YOUR MAP FROM A GEOLOGICAL SURVEY CHART, OR OTHER MAP
MEETING THE ABOVE SPECIFICATIONS. IF YOU DO, YOUR MAP SOULD BEAR A NOTE
SHOWING THE NUMBER OR TITLE OF THE MAP OR CHART IT WAS TRACED FROM.
INCLUDE THE NAMES OF NEARBY TOWNS, WATER BODIES, AND OTHER PROMINENT
POINTS. AN EXAMPLE OF AN ACCEPTABLE LOCATION MAP IS SHOWN IN FIGURE A
OF THESE INSTRUCTIONS.
(NOTE -- FIGURE A IS PROVIDED FOR PURPOSES OF ILLUSTRATION ONLY, AND
DOES NOT REPRESENT ANY ACTUAL FACILITY.)
BILLING CODE 6560-01-M
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 034 OF 74
COSTLE D M ADMINISTRATOR
EPA
113758
REGULATION
FIGURE A
MAP OMITTED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 035 OF 74
COSTLE D M ADMINISTRATOR
EPA
113759
REGULATION
ITEM XII. BRIEFLY DESCRIBE THE NATURE OF YOUR BUSINESS (E.G.,
PRODUCTS PRODUCED OR SERVICES PROVIDED).
ITEM XIII. FEDERAL STATUES PROVIDE FOR SEVERE PENALTIES FOR
SUBMITTING FALSE INFORMATION ON THIS APPLICATION FORM.
18 U.S.C. SECTION 1001 PROVIDES THAT "WHOEVER, IN ANY MATTER WITHIN
THE JURISDICTION OF ANY DEPARTMET OR AGENCY OF THE UNITED STATES
KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS OR COVERS UP BY ANY TRICK,
SCHEME, OR DEVICE A MATERIAL FACT, OR MAKES OR USES ANY FALSE WRITING OR
DOCUMENT KNOWING SAME TO CONTAIN ANY FALSE, FICTITITUS OR FRAUDULENT
STATEMENT OR ENTRY, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED
NOT MORE THAN FIVE YEARS, OR BOTH."
SECTION 309(C)(2) OF THE CLEAN WATER ACT AND SECTION 113(C)(2) OF THE
CLEAN AIR ACT EACH PROVIDE THAT "ANY PERSON WHO KNOWIGLY MAKES ANY FALSE
STATEMENT, REPRESENTATION, OR CERTIFICATION IN ANY APPLICATION . . .
SHALL UPON CONVICTION, BE PUNISHED BY A FINE OF NO MORE THAN $10,000 OR
BY IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR BOTH."
IN ADDITION, SECTION 3008(D)(3) OF THE RESOURCE CONSERVATION AND
RECOVERY ACT PROVIDES FOR A FINE UP TO $25,000 OR IMPRISONMENT UP TO ONE
YEAR FOR A FIRST CONVICTION FOR MAKING A FALSE STATEMENT IN ANY
APPLICATION UNDER THE ACT, AND FOR DOUBLE THESE PENALTIES UPON
SUBSEQUENT CONFICTIONS.
FEDERAL REGULATIONS REQUIRE THIS APPLICATION TO BE SIGNED AS FOLLOWS:
(1) FOR A CORPORATION, BY A PRINCIPAL EXECUTIVE OFFICER OF AT LEAST
THE LEVEL OF VICE PRESIDENT. HOWEVER, IF THE ONLY ACTIVITY IN ITEM II
WHICH IS MARKED "YES" IS QUESTION G, THE OFFICER MAY AUTHORIZE A PERSON
HAVING RESPONSIBILITY FOF THE OVERALL OPERATIONS OF THE WELL OR WELL
FIELD TO SIGN THE CERTIFICATION. IN THAT CASE, THE AUTHORIZATION MUST
BE WRITTEN AND SUBMITTED TO THE PERMITTING AUTHORITY.
(2) FOR PARTNERSHIP OR SOLE PROPRIETORSHIP, BY A GENERAL PARTNER OR
THE PROPRIETOR, RESPECTIVELY; OR
(3) FOR A MUNICIPALITY, STATE, FEDERAL, OR OTHER PUBLIC FACILITY, BY
EITHER A PRINCIPAL EXECUTIVE OFFICER OR RANKING ELECTED OFFICIAL.
REQUIRE PERMITS
1. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMITS UNDER THE
CLEAN WATER ACT. YOU ARE NOT REQUIRED TO OBTAIN AN NPDES PERMIT IF YOUR
DISCHARGE IS IN ONE OF THE FOLLOWING CATEGORIES, AS PROVIDED BY THE
CLEAN WATER ACT (CWA) AND BY THE NPDES REGULATIONS (40 CFR PARTS
122-125). HOWEVER, UNDER SECTION 510 OF CWA A DISCHARGE EXEMPTED FROM
THE FEDERAL NPDES REQUIREMENTS MAY STILL BE REGULATED BY A STATE
AUTHORITY; CONTACT YOUR STATE ENVIRONMENTAL AGENCY TO DETERMINE WHETHER
YOU NEED A STATE PERMIT.
A. DISCHARGES FROM VESSELLS. DISCHARGES OF SEWAGE FROM VESSELS,
EFFLUENT FROM PROPERLY FUNCTIONING MARINE ENGINES, LAUNDRY, SHOWER, AND
GALLEY SINK WASTES, AND ANY OTHER DISCHARGE INCIDENTAL TO THE NORMAL
OPERATION OF A VESSEL DO NOT REQUIRE NPDES PERMITS. HOWEVER, DISCHARGES
OF RUBBISH, TRASH, GARBAGE, OR OTHER SUC MATERIALS DISCHARGED OVERBOARD
REQUIRE PERMITS, AND SO DO OTHER DISCHARGES WHEN THE VESSEL IS OPERATING
IN A CAPACITY OTHER THAN AS A MEANS OF TRANSPORTATION, SUCH AS WHEN THE
VESSEL IS BEING USED AS AN ENERGY OR MINING FACILITY, A STORAGE
FACILITY, OR A SEAFOOD PROCESSING FACILITY, OR IS 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.
B. DREDGED OR FILL MATERIAL. DISCARGES OF DREDGED OR FILL MATERIAL
INTO WATERS OF THE UNITED STATES DO NOT NEED NPDES PERMITS IF THE
DREDGING OR FILLING IS AUTHORIZED BY A PERMIT ISSUED BY THE U.S. ARMY
CORPS OF ENGINEERS OR AN EPA-APPROVED STATE UNDER SECTION 404 OF CWA.
C. DISCHARGES INTO PUBLICLY OWNED TREATMENT WORKS (POTW). THE
INTRODUCTION OF SEWAGE, INDUSTRIAL WASTES, OR OTHER POLLUTANTS INTO A
POTW DOES NOT NEED AN NPDES PERMIT. YOU MUST COMPLY WITH ALL APPLICABLE
PRETREATMENT STANDARDS PROMULGATED UNDER SECTION 307(B) OF CWA, WHICH
MAY BE INCLUDED IN THE PERMIT ISSUED TO THE POTW. IF YOU HAVE A PLAN OR
AN AGREEMENT TO SWITCH TO A POTW IN THE FUTURE, THIS DOES NOT RELIEVE
YOU OF THE OBLIGATION TO APPLY FOR AND RECEIVE AN NPDES PERMIT UNTIL YOU
HAVE STOPPED DISCHARGING POLLUTANTS INTO WATERS OF THE UNITED STATES.
(NOTE: DISCHARGERS INTO PRIVATELY OWNED TREATMENT WORKS DO NOT HAVE
TO APPLY FOR OR OBTAIN NPDES PERMITS EXCEPT AS OTHERWISE RCQUIRED BY TE
EPA REGIONAL ADMIISTRATOR. THE OWNER OR OPERATOR OF THE TREATMENT WORKS
ITSELF, HOWEVER, MUST APPLY FOR A PERMIT AND IDENTIFY ALL USERS IN ITS
APPLICATION. USERS SO IDENTIFIED WILL RECEIVE PUBLIC NOTICE OF ACTIONS
TAKEN ON THE PERMIT FOR THE TREATMENT WORKS.)
D. DISCHARGES FROM AGRICULTURAL AND SILVICULTURAL ACTIVITIES. MOST
DISCHARGES FROM AGRICULTURAL AND SILVICULTURAL ACTIVITIES TO WATERS OF
THE UNITED STATES DO NOT REQUIRE NPDES PERMITS. THESE INCLUDE RUNOFF
FROM ORCHARDS, CULTIVATED CROPS, PASTURES, RANGE LANDS, AND FOREST
LANDS. HOWEVER, THE DISCHARGES LISTED BELOW DO REQUIRE NPDES PERMITS.
DEFINITIONS OF THE TERMS LISTED BELOW ARE CONTAINED IN THE GLOSSARY
SECTION OF THESE INSTRUCTIONS.
(1) DISCHARGES FRON CONCENTRATED ANIMAL FEEDING OPERATIONS. (SEE
GLOSSARY FOR DEFINITIONA OF "ANIMAL FEEDING OPERATIONS" AND
"CONCENTRATED ANIMAL FEEDING OPERATIONS." ONLY TE LATTER REQUIRE
PERMITS.)
(2) DISCHARGES FROM CONCENTRATED AQUATIC ANIMAL PRODUCTION
FACILITIES. (SEE GLOSSARY FOR SIZE CUTOFFS.)
(3) DISCHARGES ASSOCIATED WITH APPROVED AQUACULTURE PROJECTS.
(4) DISCHARGES FROM SILVICULTURAL POINT SOURCES. (SEE GLOSSARY FOR
THE DEFINITION OF "SILVICULTURAL POINT SOUFCE.") NONPOINT SOURCE
SILVICULTURAL ACTIVITIES ARE EXCLUDED FROM NPDES PERMIT PREQUIREMENTS.
HOWEVER, SOME OF THESE ACTIVITIES, SUCH AS STREAM CROSSINGS FOR ROADS,
MAY INVOLVE POINT SOURCE DISCHARGES OF DREDGED OR FILL MATERIAL WHICH
MAY REQUIRE A SECTION 404 PERMIT. SEE 33 CFR 209.120.
E. DISCHARGES IN COMPLIANCE WITH AN ON-SCENE COORDINATOR'S
INSTRUCTIONS.
II. HAZARDOUS WASTE PERMITS UNDER THE RESOURCE CONSERVATION AND
RECOVERY ACT. YOU MAY BE EXCLUDED FROM THE REQUIREMENT TO OBTAIN A
PERMIT UNDER THIS PROGRAM IF YOU FALL INTO ONE OF THE FOLLOWING
CATEGORIES.
GENERATORS WHO ACCUMULATE THEIR OWN HAZARDOUS WASTE ON-SITE FOR LESS
THAN 90 DAYS;
CERTAIN SMALL GENERATORS;
OWNERS OR OPERATORS OF TOTALLY ENCLOSED TREATMENT FACILITIES; OR
FARMERS WHO DISPOSE OF WASTE PESTICIDE FROM THEIR OW' USE.
CHECK WITH YOUR REGIONAL OFFICE FOR DETAILS. PLEASE NOTE
THAT EVEN IF YOU ARE EXCLUDED FROM PERMIT REQUIREMENTS, YOU
MAY BE REQUIRED BY FEDERAL REGULATIONS TO HANDLE YOUR WASTE
IN A PARTICULAR MANNER.
III. UNDERGROUND INJECTION CONTROL PERMITS UNDER THE SAFE DRINKING
WATER ACT. YOU ARE NOT REQUIRED TO OBTAIN A PERMIT UNDER THIS PROGRAM
IF YOU:
INJECT INTO EXISTING WELLS USED TO ENHANCE RECOVERY OF OIL AND GAS OR
TO STORE HYDROCARBONS (NOTE, HOWEVER, THAT THESE UNDERGROUND INJECTIONS
ARE REGULATED BY FEDERAL RULES); OR
INJECT INTO OR ABOVE A STRATUM WHICH CONTAINS, WITHIN 1/4 MILE OF THE
WELL BORE AN UNDERGROUND SOURCE OF DRINKING WATER (UNLESS YOUR INJECTION
IS THE TYPE IDENTIFIED IN ITEM II-H, FOR WHIC YOU DO NEED A PERMIT.)
HOWEVER, YOU MUST NOTIFY EPA OF YOUR INJECTION AND SUBMIT CERTAIN
REQUIRED INFORMATION ON FORMS SUPPLIED BY THE AGENCY, AND YOUR OPERATION
MAY BE PHASED OUT IF YOU ARE A GENERATOR OF HAZARDOUS WASTES OR A
HAZARDOUS WASTE MANAGEMENT FACILITY WHICH USES WELLS OR SEPTIC TANKS TO
DISPOSE OF HAZARDOUS WASTE.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 036 OF 74
COSTLE D M ADMINISTRATOR
EPA
113760
REGULATION
IV. PREVENTION OF SIGNIFICANT DETERIORATION PERMITS UNDER THE CLEAN
AIR ACT. THE PSD PROGRAM APPLIES TO NEWLY CONSTRUCTED OR MODIFIED
FACILITIES (BOTH OF WHICH ARE REFERRED TO AS ".EW SOURCES") WHICH
INCREASE AIR EMISSIONS. TE CLEAN AIR ACT AMENDMENTS OF 1977 EXCLUDE
SMALL NEW SOURCES OF AIR EMISSIONS FROM THE PSD REVIEW PROGRAM. ANY NEW
SOURCE IN AN INDUSTRIAL CATEGORY LISTED IN TABLE 3 OF THESE INSTRUCTIONS
WHOSE POTENTIAL TO EMIT IS LE-S THAN 100 TONS PER YEAR IS NOT REQUIRED
TO GET A PSD PERMIT. IN ADDITION, ANY NEW SOURCE IN AN INDUSTRIAL
CATEGORY NOT LISTED IN TABLE 3 WHOSE POTENTIAL TO EMIT IS LESS THAN 250
TONS PER YEAR IS EXEMPTED FROM THE PSD REQUIREMENTS.
MODIFIED SOURCES WHICH INCREASE THEIR NET EMISSIONS (THE DIFFERENCE
BETWEEN THE TOTAL EMISSION INCREASES AND TOTAL EMISSION DECREASES AT THE
SOURCE) LESS THAN THE SIGNIFICANT AMOUNT SET FORTH IN EPA REGULATIONS
ARE ALSO EXEMPT FROM PSD REQUIREMENTS. CONTACT YOUR EPA REGIONAL OFFICE
(TABLE 1) FOR FURTHER INFORMATION.
NOTE: THIS GLOSSARY INCLUDES TERMS USED IN THE INSTRUCTIONS AND IN
FORMS 1, 2B, 2C, AND 3. ADDITIONAL TERMS WILL BE INCLUDED IN THE FUTURE
WHEN OTHER FORMS ARE DEVELOPED TO REFLECT THE REQUIREMENTS OF OTHER
PARTS OF THE CONSOLIDATED PERMIT PROGRAM. IF YOU HAVE ANY QUESTIONS
CONCERNING THE MEANING OF ANY OF THESE TERMS, PLEASE CONTACT YOUR EPA
REGIONAL OFFICE (TABLE 1).
"ALIQUOT" MEANS A SAMPLE OF SPECIFIED VOLUME USED TO MAKE UP A TOTAL
COMPOSITE SAMPLE.
"ANIMAL FEEDING OPERATION" MEANS A LOT OR FACILITY (OTHER THAN AN
AQUATIC ANIMAL PRODUCTION FACILITY) WHERE THE FOLLOWING CONDITIONS ARE
MET:
1. ANIMALS (OTHER THAN AQUATIC ANIMALS) HAVE BEEN, ARE, OR WILL BE
STABLED OR CONFINED AND FED OR MAINTAINED FOR A TOTAL OF 45 DAYS OR MORE
IN ANY 12-MONTH PERIOD, AND
2. CROPS, VEGETATION, FORAGE GROWTH, OR POST-HARVEST RESIDUES ARE
NOT SUSTAINED IN THE NORMAL GROWING SEASON OVER ANY PORTION OF THE LOT
OR FACILITY.
TWO OR MORE ANIMAL FEEDING OPERATIONS UNDER COMMON OWNERSHIP ARE A
SINGLE ANIMAL FEEDING OPERATION IF THEY ADJOIN EAC OTHER OR IF THEY USE
A COMMON AREA OR SYSTEM FOR THE DISPOSAL OF WASTES.
"ANIMAL UNIT" MEANS A UNIT OF MEASUREMENT FOR ANY ANIMAL FEEDING
OPERATION CALCULATED BY ADDING THE FOLLOWING NUMBERS: THE NUMBER OF
SLAUGHTER AND FEEDER CATTLE MULTIPLIED BY 1.0, PLUS THE NUMBER OF MATURE
DAIRY CATTLE MULTIPLIED BY 1.4, PLUS THE NUMBER OF SWINE WEIGHING OVER
25 KILOGRAMS (APPROXIMATELY 55 POUNDS) MULTIPLIED BY 0.4, PLUS THE
NUMBER OF SHEEP MULTIPLIED BY 0.1, PLUS THE NUMBER OF ORSES MULTIPLIED
BY 2.0.
"APPLICATION" MEANS THE EPA STANDARD NATIONAL FORMS FOR APPLYING FOR
A PERMIT, INCLUDING ANY ADDITIONS, REVISIONS, OR MODIFICATIONS TO THE
FORMS; OR FORMS APPROVED BY EPA FOR USE IN APPROVED STATES, INCLUDING
ANY APPROVED MODIFICATIONS OR REVISIONS. FOR RCRA, "APPLICATION" ALSO
MEANS "APPLICATION, PART B."
"APPLICATION, PART A" MEANS THAT PART OF THE CONSOLIDATED PERMIT
APPLICATION FORMS WHICH A RCRA PERMIT APPLICANT MUST COMPLETE TO QUALIFY
FOR INTERIM STATUS UNDER SECTION 3U05(E) OF RCRA AND FOR CONSIDERATION
FOR A PERMIT. PART A CONSISTS OF FORM 1 (GENERAL INFORMATION) AND FORM
3 (HAZARDOUS WASTE APPLICATION FORM).
"APPLICATION, PART B", MEANS TAT PART OF THE APPLICATION WHICH A RCRA
PERMIT APPLICANT MUST COMPLETE TO BE ISSUED A PERMIT. (NOTE: EPA IS
NOT DEVELOPING A SPECIFIC FORM FOR PART B OF THE PERMIT APPLICATION, BUT
AN INSTRUCTION BOOKLET EXPLAINING WHAT INFORMATION MUST BE SUPPLIED IS
AVAILABLE FROM THE EPA REGIONAL OFFICE.)
"APPROVED PROGRAM" OR "APPROVED STATE" MEANS A STATE PROGRAM WHICH
HAS BEEN APPROVED OR AUTHORIZED BY EPA UNDER 40 CFR PART 123.
"AQUACULTURE PROJECT" MEANS A DEFINED MANAGED WATER AREA WHICH USES
DISCHARGES OF POLLUTANTS INTO THAT DESIGNATED AREA FOR THE MAINTENANCE
OR PRODUCTION OF HARVESTABLE FRESWATER, ESTAURINE, OR MARINE PLANTS OR
ANIMALS. "DESIGNATED AREA" MEANS THE PORTIONS OF THE WATERS OF THE
UNITED STATES WITHIN WHICH THE APPLICANT PLANS TO CONFINE THE CULTIVATED
SPECIES, USING A METHOD OF PLAN OR OPERATION (INCLUDING, BUT NOT LIMITED
TO, PHYSICAL CONFINEMENT) WICH, ON THE BASIS OF RELIABLE SCIETIFIC
EVIDENCE, IS EXPECTED TO ENSURE THE SPECIFIC INDIVIDUAL ORGANISMS
COMPRISING AN AQUACULTURE CROP WILL ENJOY INCREASED GROWTH ATTRIBUTABLE
TO THE DISCHARGE OF POLLUTANTS AND BE HARVESTED WITHIN A DEFINED
GEOCRAPHIC AREA.
"AQUIFER" MEANS A GEOLOGICAL FORMATION, GROUP OF FORMATIONS, OR PART
OF A FORMATION THAT IS CAPABLE OF YIELDING A SIGNIFICANT AMOUNT OF UATER
TO A WELL OR SPRING.
"AREA OF REVIEW" MEANS THE AREA SURROUNDING AN INJECTION WELL WHICH
IS DESCRI0ED ACCORDING TO THE CRITERIA SET FORT IN 40 CFR SECTION
146.06.
"AREA PERMIT" MEANS A UIC PERMIT APPLICABLE TO ALL OR CERTAIN WELLS
WITHIN A GEOGRAPHIC AREA, RATHER THAN TO A SPECIFIED WELL, UNDER 40 CFR
SECTION 122.37.
"ATTAINMENT AREA" MEANS, FOR ANY AIR POLLUTANT, AN AREA WHICH HAS
BEEN DESIGNATED UDER SECTION 107 OF THE CLEAN AIR ACT AS HAVING AMBIENT
AIR QUALITY LEVELS BETTER THAN ANY NATIONAL PRIMARY OR SECONDAFY AMBIENT
AIR QUALITY STANDARD FOR THAT POLLUTANT. STANDARDS HAVE BEEN SET FOR
SULFUR OXIDES, PARTICULATE MATTER, NITROGEN DIOXIDE, CARBON MONOXIDE,
OZO.E, LEAD AND HYDROCARBONS. FOR PURPOSES OF THE GLOSSARY, "ATTAINMENT
AREA" ALSO REFERS TO "UNCLASSIFIAELE AREA," WHIC MEANS, FOF ANY
POLLUTANTS, AN AREA DESIGNATED UNDER SECTION 107 AS UNCLASSIFIABLE WITH
RESPECT TO THAT POLLUTANT DUE TO INSUFFICIENT INFORMATION.
"BEST MANAGEMENT PRACTICES" ("BMP") MEANS SCHEDULES OF ACTIVITIES,
PROIBITIONS OF PRACTICES, MAINTENANCE PROCEDURES, AND OTHER MANAGEMENT
PRACTICES TO PREVENT OR REDUCE THE POLLUTION OF WATERS OF THE UNITED
STATES. BMPS INCLUDE TREATMENT REQUIREMENTS, OPERATING PROCEDUFES, AND
PRACTICES TO CONTROL PLANT SITE RUNOFF, SPILLAGE OR LEAKS, SLUDGE OR
WASTE DISPOSAL, OR DRAIAGE FROM RAW MATERIAL STORAGE.
"BIOLOGICAL MONITORING TEST" MEANS ANY TEST WHICH INCLUDES THE USE OF
AQUATIC ALGAL, INVERTEBRATE, OR VERTEBRATE SPECIES TO MEASURE ACUTE OR
CRONIC TOXICITY, AND ANY BIOLOGICAL OR CHEMICAL MEASURE OF
BIOACCUMULATION.
"BYPASS" MEANS THE INTENTIONAL DIVERSION OF WASTES FROM ANY PORTION
OF A TREATMENT FACILITY.
"CONCENTRATED ANIMAL FEEDING OPERATION" MEANS AN ANIMAL FEEDING
OPERATION WHICH MEETS THE CRITERIA SET FORTH IN EITHER (1) OF (2) OR
WHICH THE DIRECTOR DESIGNATES AS SUCH ON A CASE-BY-CASE BASIS:
1. MORE THAN TE NUBERS OF ANIMALS SPECIFIED IN ANY OF THE FOLLOWING
CATEGORIES ARE CONFINED:
(A) 1,0U0 SLAUGHTER OR FEEDER CATTLE,
(0) 700 MATURE DAIRY CATTLE (WHETHER MILKED OR DRY COWS),
(C) 2,500 SWINE EACH WEIGHING OVER 25 KILOGRAMS (APPROXIMATELY 55
POUNDS),
(D) 5U0 HORSES,
(E) 10,000 SHEEP OR LAMBS,
(F) 55,000 TURKEYS,
(G) 100,0U0 LAYING HENS OR BROILERS (IF TE FACILITY HAS A CONTINUOUS
OVERFLOW WATERING)
(H) 30,000 LAYING HENS OR BROILERS (IF TE FACILITY HAS A LIQUID
MANURE HANDLING SYSTEM),
(I) 5,000 DUCKS, OR
(J) 1,000 ANIMAL UNITS; OR
2. MORE THAN THE FOLLOWING NUMBERS AND TYPES OF ANIMALS ARE
CONFINED:
(A) 300 SLAUGHTER OR FEEDER CATTLES,
(B) 20U MATURE DAIRY CATTLE (WHETHEF MILKED OR DRY COWS),
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 037 OF 74
COSTLE D M ADMINISTRATOR
EPA
113761
REGULATION
(C) 750 SWINE EACH WEIGHING OVER 25 KILOGRAMS (APPROXIMATELY 55
POUNDS),
(D) 150 HORSES,
(C) 3,U00 SHEEP OR LAMBS,
(F) 16,500 TURKEYS,
(G) 30,000 LAYING HENS OR BROILERS (IF THE FACILITY HAS CONTINUOUS
OVERFLOW WATERING),
(H) 9,000 LAYING HENS OR BROILERS (IF THE FACILITY HAS A LIQUID
MANURE HANDLING SYSTEM),
(I) 1,500 DUCKS, OR
(J) 300 ANIMAL UNITS;
AND EITHER ONE OF THE FOLLOWING CONDITIONS ARE MET; POLLUTANTS ARE
DISCHARGED INTO WATERS OF THE UNITED STATES THROUGH A MANMADE DITCH,
FLUSHING SYSTEM OR OTHER SIMILAR MANMADE DEVICE "MANMADE" MEANS
COSTRUCTED BY MAN AND USED FOR THE PURPOSE OF TRANSPORTING WASTES); OR
POLLUTANTS ARE DISCHARGED DIRECTLY INTO WATERS OF THE UNITED STATES
WHICH ORIGINATE OUTSIDE OF AND PASS OVER, ACROSS, OR THROUGH THE
FACILITY OR OTHERWISE COME INTO DIRECT CONTACT WIT THE ANIMALS CONFINED
IN THE OPERATION.
PROVIDED, HOWEVER, THAT NO ANIMAL FEEDING OPERATION IS A CONCENTRATED
ANIMAL FEEDING OPERATION AS DEFINED A0OVE IF SUC ANIMAL FEEDING OPERATIO
DISCHARGES ONLY IN THE EVENT OF A 25 YEAR, 24 HOUR STORM EVENT.
"CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITY" MEANS A HATCHERY,
FISH FARM, OR OTHEF FACILITY WHICH CONTAINS, GROWS OR HOLDS AQUATIC
ANIMALS IN EITHER OF THE FOLLOWING CATEGORIES, OR WHICH THE DIRECTOR
DESIGNATES AS SUCH ON A CASE-BY-CASE BASIS:
1. COLD WATER FISH SPECIES OR OTHER COLD WATER AQUATIC ANIMALS
INCLUDING, BUT NOT LIMITED TO, THE SALMONIDAE FAMILY OF FISH (E.G.,
TROUT AND SALMON) IN PONDS, RACEWAYS OR OTHER SIMILAR STRUCTURES WHICH
DISCHARGE AT LEAST 3U DAYS PER YEAR BUT DOES NOT INCLUDE:
(A) FACILITIES WHICH PRODUCE LESS THAN 9,090 HARVEST WEIGHT KILOGRAMS
(APPROXIMATELY 20,000 POUNDS) OF AQUATIC ANIMALS PER YEAR; AND
(B) FACILITIES WHICH FEED LESS THAN 2,272 KILOGRAMS (APPROXIMATELY
5,000 POUNDS) OF FOOD DURING THE CALEDAR MONTH OF MAXIMUM FEEDING.
2. WARM WATER FISH SPECIES OR OTHER WARM WATER AQUATIC ANIMALS
INCLUDING, BUT NOT LIMITED TO, THE AMEIURIDAE, CETRARCHIDAE, AND
CYPRINIDAE FAMILIES OF FISH (E.G., RESPECTIVELY, CATFISH, SUNFISH AND
MINNOWS) IN PONDS, RACEWAYS, OR OTHER SIMILAR STRUCTURES WHICH DISCARGE
AT LEAST 3U DAYS PER YEAR, BUT DOES NOT INCLUDE:
(A) CLOSED PONDS WHICH DISCHARGE ONLY DURING PERIODS OF EXCESS
RUNOFF; OR
(B) FACILITIES WHICH PRODUCE LESS THAN 45,454 HARVEST WEIGHT
KILOGRAMS (APPROXIMATELY 100,000 POUNDS) OF AQUATIC ANIMALS PER YEAR.
"CONTACT COOLING WATER" MEANS WATER USED TO REDUCE TEMPERATURE WHICH
COMES INTO CONTACT WITH A RAW MATERIAL, INTERMEDIATE PRODUCT, WASTE
PRODUCT OTHER THAN HEAT, OR FINISHED PRODUCT.
"CONTIGUOUS ZONE" MEANS THE ENTIRE ZONE ESTABLISHED BY THE UNITED
STATES UNDER ARTICLE 24 OF THE CONVENTION OF THE TERRITORIAL SEA AND TE
CONTIGUOUS ZONE.
"CWA" MEANS THE CLEAN WATER ACT (FORMERLY REFERRED TO THE FEDERAL
WATER POLLUTION CONTROL ACT) PUB. L. 92-500, AS AMENDED BY PUB. L.
95-217 AND PUB. L. 95-576, 33 U.S.C. 1251 ET SEQ.
"DIRECT DISCHARGE" MEANS THE DISCHARGE OF A POLLUTANT AS DEFINED
BELOW.
"DIRECTOR" MEANS THE EPA REGIONAL ADMINISTRATOR OR THE STATE DIRECTOR
AS THE CONTEXT REQUIRES.
"DISCHARGE (OF A POLLUTANT)" MEANS:
(1) ANY ADDITION OF ANY POLLUTANT OR COMBINATION OF POLLUTANTS TO
WATERS OF THE UNITED STATES FROM ANY POINT SOURCE, OR
(2) ANY ADDITION OF ANY POLLUTANT OR COMBINATION OF POLLUTANTS TO THE
WATERS OF THE CONTIGUOUS ZONE OR THE OCEAN FROM ANY POINT SOURCE OTHER
THAN A VESSEL OR OTHER FLOATING CRAFT WHICH IS BEING USED AS A MEANS OF
TRANSPORTATION.
THIS DEFINITION INCLUDES DISCHARGES INTO WATERS OF THE UNITED STATES
FROM: SURFACE RUNOFF WHICH IS COLLECTED OR CHANNELLED BY MAN;
DISCHARGES THROUGH PIPES, SEWERS, OR OTHER CONVEYANCES OWNED BY A STATE,
MUNICIPALITY, OR OTHER PERSON WHICH DO NOT LEAD TO POTW'S; AND
DISCHARGES THROUGH PIPES, SEWERS, OR OTHER CONVEYANCES, LEADING INTO
PRIVATELY OWNED TREATMENT WORKS. THIS TERM DOES NOT INCLUDE AN ADDITION
OF POLLUTANTS BY ANY INDIRECT DISCHARGER.
"DISPOSAL" (IN THE RCRA PROGRAM) MEANS THE DISCHARGE, DEPOSIT,
INJECTION, DUMPING, SPILLING, LEAKING, OR PLACING OF ANY HAZARDOUS WASTE
INTO OR ON ANY LAND OR WATER SO THAT THE HAZARDOUS WASTE OR ANY
CONSTITUTENT OF IT MAY ENTER THE ENVIRONMENT OR BE EMITTED INTO THE AIR
OR DISCHARGED INTO ANY WATERS, INCLUDING GROUND WATER.
"DISPOSAL FACILITY" MEANS A FACILITY OR PART OF A FACILITY AT WHICH
HAZARDOUS WASTE IS INTENTIONALY PLACED INTO OR ON LAND OR WATER, AND AT
WHICH HAZARDOUS WASTE WILL REMAIN AFTER CLOSURE.
"EFFLUENT LIMITATION" MEANS ANY RESTRICTION IMPOSED BY THE DIRECTOR
ON QUANTITIES, DISCHARGE RATES, AND CONCENTRATIONS OF POLLUTANTS WHICH
ARE DISCHARGED FROM POINT SOURCES INTO WATERS OF THE UNITED STATES, THE
WATERS OF THE CONTINGUOUS ZONE, OR THE OCEAN.
"EFFLUENT LIMITATION GUIDELINE" MEANS A REGULATION PUBLISHED BY THE
ADMINISTRATOR UNDER SECTION 304(B) OF THE CLEAN WATER ACT TO ADOPT OR
REVISE EFFLUENT LIMITATIONS.
"ENVIRONMENTAL PROTECTION AGENCY" ("EPA") MEANS THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY.
"EXEMPTED AQUIFER" MEANS AN AQUIFER OR ITS PORTION THAT MEETS THE
CRITERIA IN THE DEFINITION OF USDW, BUT WHIC HAS BEEN EXEMPTED ACCORDING
TO THE PROCEDURES IN 40 CFR SECTION 122.35 (B).
"EXISTING HWM FACILITY" MEANS A HAZARDOUS WASTE MANAGEMENT FACILITY
WHICH WAS IN OPERATION, OR FOR WICH CONSTRUCTION HAD COMMENCED, ON OR
BEFORE OCTOBER 21, 1976. CONSTRUCTION HAD COMMENCED IF (1) THE OWNER OR
OPERATOR HAD OBTAIKED ALL NECESSARY FEDERAL, STATE AND LOCAL
PRECONSTRUCTION APPROVALS OR PERMITS, AND EITHER (2A) A CONTINUOUS
ON-SITE, PHYSICAL CONSTRUCTION PROGRAM HAD BEGUN, OR (2B) THE OWNER OR
OPERATOR HAD ENTERED INTO CONTRACTUAL OBLIGATIONS, WHICH COULD NOT BE
CANCELLED OR MODIFIED WITHOUT SUBSTANTIAL LOSS, FOR CONSTRUCTION OF THE
FACILITY TO BE COMPLETED WITHIN A REASONABLE TIME.
(NOTE: THIS DEFINITION REFLECTS THE LITERAL LANGUAGE OF THE STATUTE.
HOWEVER, EPA BELIEVES THAT AMENDMENTS TO RCRA NOW IN CONFERENCE WILL
SHORTLY BE ENACTED AND WILL CHANGE THE DATE FOR DETERMINING WHEN A
FACILITY IS AN "EXISTING FACILITY" TO ONE NO EARLIER THAN MAY OF 1980;
INDICATIONS ARE TE CONFEREES ARE CONSIDERING OCTOBER 30, 1980.
ACCORDINGLY, EPA ENCOURAGES EVERY OWNER OR OPERATOR OF A FACILITY WHICH
WAS BUILT OR UNDER CONSTRUCTION AS OF THE PROMULGATION DATE OF THE RCRA
PROGRAM REGULATIONS TO FILE PART A OF ITS PERMIT APPLICATION SO THAT IT
CAN 8E QUICKLY PROCESSED FOR INTERIM STATUS WHEN THE CHANGE IN THE LAW
TAKES EFFECT. WHEN THOSE AMENDMENTS ARE ENACTED, EPA WILL AMEND THIS
DEFINITION.)
"EXISTING SOURCE" OR "EXISTING DISCHARGER" (IN THE NPDES PROGRAM)
MEANS ANY SOURCE WHICH IS NOT A NEW SOURCE OR A NEW DISCHARGER.
"EXISTING INJECTION WELL" MEANS AN INJECTION WELL OTHER TAN A NEW
INJECTION WELL.
"FACILITY" MEANS ANY HWM FACILITY, UIC UNDERGROUND INJECTION WELL,
NPDES POINT SOURCE, PSD STATIONARY SOURCE, OR ANY OTHER FACILITY OR
ACTIVITY (INCLUDING LAND OR APPURTENANCES THERETO) THAT IS SU0JECT TO
REGULATION UNDER THE RCRA, UIC, NPDES OR PSD PROGRAMS.
"FLUID" MEANS MATERIAL OR SUBSTANCE WHICH FLOWS OR MOVES WHETHER IN A
SEMISOLID, LIQUID, SLUDGE, GAS, OR ANY OTHER FORM OR STATE.
"GENERATOR" MEANS ANY PERSON BY SITE LOCATION, WHOSE ACT OR PROCESS
PRODUCES HAZARDOUS WASTE IDENTIFIED OR LISTED IN 40 CFR PART 261.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 038 OF 74
COSTLE D M ADMINISTRATOR
EPA
113762
REGULATION
"GROUNDWATER" MEANS WATER BELOW THE LAND SURFACE IN A ZONE OF
SATURATION.
"HAZARDOUS SUBSTANCE" MEANS ANY OF THE SUBSTANCES DESIGNATED UNDER 40
CFR PART 116 PURSUANT TO SECTION 311 OF CWA. "NOTE: THESE SUBSTANCES
ARE LISTED IN TABLE 2C-4 OF THE INSTRUCTIONS TO FORM 2C.)
"HAZARDOUS WASTE" MEANS A HAZARDOUS WASTE AS DEFINED IN 40 CFR
SECTION 261.3.
"HAZARDOUS WASTE MANAGEMENT FACILITY" ("HWM FACILITY") MEANS ALL
CONTIGUOUS LAND, STFUCTURES, APPURTENANCES, AND IMPROVEMENTS ON THE
LAND, USED FOR TREATING, STORING, OR DISPOSING OF HAZARDOUS WASTES. A
FACILITY MAY CONSIST OF SEVEFAL TREATMENT, STORAGE OR DISPOSAL
OPERATIONAL UNITS (FOR EXAMPLE, OE OR MORE LANDFILLS, SURFACE
IMPOUNDMENTS, OR COMBINATIONS OF THEM).
"IN OPERATION" MEANS A FACILITY WHICH IS TREATING, STORING, OR
DISPOSING OF HAZARDOUS WASTE.
"INDIRECT DISCHARGER" MEANS A NONDOMESTIC DISCHARGER INTRODUCING
POLLUTANTS TO A PUBLICLY OWNED TREATMENT WORKS.
"INJECTION WELL" MEANS A WELL INTO WHICH FLUIDS ARE BEING INJECTED.
"INTERIM AUTHORIZATION" MEANS APPROVAL BY EPA OF A STATE HAZARDOUS
WASTE PROGRAM WHICH HAS MET THE REQUIREMENTS OF SECTION 3006(C) OF RCRA
AND APPLICABLE REQUIREMENTS OF 40 CFR PART 123, SUBPARTS A, B, AND F.
"LISTED STATE" MEANS A STATE LISTED BY TE ADMINISTRATOR UNDER SECTION
1422 OF SDWA AS NEEDING A STATE UIC PROGRAM.
"MGD" MEANS MILLIONS OF GALLONS PER DAY.
"MUNICIPALITY" MEANS A CITY, VILLAGE, TOWN, BOROUGH, COUTY, PARISH,
DISTRICT, ASSOCIATION, OR OTHERW PUBLIC BODY CREATED EY OR UNDER STATE
LAWN AND HAVING JURISDICTION OVER DISPOSAL OF SEWAGE, INDUSTRIAL WASTES,
OR OTHER WASTES, OR AN INDIAN TRIBE OR AN AUTHORIZED INDIAN TRIBAL
ORGANIZATION, OR A DESIGNATED AND APPROVED MANAGEMENT AGENCY UNDER
SECTION 208 OF CWA.
"NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM" ("NPDES") MEANS TE
NATIONAL PROGRAM FOR ISSUING, MODIFYING, REVOKING, AND REISSUING,
TERMINATING, MONITORING, AND ENFORCING PERMITS AND IMPOSING AND
ENFORCING PRETREATMENT REQUIREMENTS, UNDER SECTIONS 307, 318, 402 AND
405 OF CWA. THE TCRM INCLUDES A APPROVED PROGRAM.
"NEW DISCHARGER" MEANS ANY BUILDING, STRUCTURE, FACILITY, OR
INSTALLATION: (1) FROM WHICH THERE IS OR MAY BE A NEW OR ADDITIONAL
DISCHARGE OF POLLUTANTS AT A SITE AT WHICH ON OCTOBER 18, 1972, IT HAD
NEVER DISCHARGED POLLUTANTS; (2) WHICH HAS NEVER RECEIVED A FINALLY
EFFECTIVE NPDES PERMIT FOR DISCHARGES AT TAT SITE; AND (3) WHICH IS NOT
"NEW SOURCE." THIS DEFINITION INCLUDES AS INDIRECT DISCHARGER WHICH
COMMENCES DISCHARGING INTO WATERS OF THE UNITED STATES. IT ALSO
INCLUDES ANY EXISTING MOBILE POINT SOURCE, SUCH AS AN OFFSOFE OIL
DRILLING RIG, SEAFOOD PROCESSING VESSEL, OR AGGREGATE PLANT THAT BEGINS
DISCHARGING AT A LOCATION FOR WHIC IT DOES NOT HAVE AN EXISTING PERMIT.
"NEW HWM FACILITY" MEANS A HAZARDOUS WASTE MANAGEMENT FACILITY WHICH
BEGAN OPERATION OR FOR WHICH CONSTRUCTION COMMENCED AFTER OCTOBER 21,
1976.
"NEW INJECTION WELL" MEANS A WELL WHIC BEGINS INJECTION AFTER A UIC
PROGRAM FOR THE STATE IN WHICH THE WELL IS LOCATED IS APPROVED.
"NEW SOURCE" (IN THE NPDES PROGRAM) MEANS ANY BUILDING, STRUCTURE,
FACILITY, OR INSTALLATION FROM WHICH THERE IS OR MAY BE A DISCHARGE OF
POLLUTANTS, THE CONSTRUCTION OF WHICH COMMENCED:
(I) AFTER PROMULGATION OF STANDARDS OF PERFORMANCE U'DER SECTION 306
OF CWA WHICH ARE APPLICABLE TO SUCH SOURCES, OR
(II) AFTER PROPOSAL OF STANDARDS OF PERFORMANCE IN ACCORDANCE WITH
SECTION 306 OF CWA WHICH ARE APPLICABLE TO SUCH SOURCE, BUT ONLY IF THE
STANDARDS ARE PROMULGATED IN ACCORDANCE WITH SECTION 3U6 WITHIN 120 DAYS
OF THEIR PROPOSAL.
"NON-CONTACT COOLING WATER" MEANS WATER USED TO REDUCE TEMPERATURE
WHICH DOES NOT COME INTO DIRECT CONTACT WITH ANY RAW MATERIAL,
INTERMEDIATE PRODUCT, WASTE PRODUCT (OTHER THAN HEAT), OR FINISHED
PRODUCT.
"OFF-SITE" MEANS ANY SITE WHICH IS NOT "ON-SITE."
"ON-SITE" MEANS ON THE SAME OR GEOGRAPHICALLY CONTIGUOUS PROPERTY
WHICH MAY BE DIVIDED BY PUBLIC OR PRIVATE RIGHT(S) OF WAY, PROVIDED THE
ENTRANCE AND EXIT BETWEEN THE PROPERTIES IS AT A CROSS-ROADS
INTERSECTION, AND ACCESS IS BY CROSSING AS OPPOSED TO GOING ALONG, THE
RIGHT(S)-OF-WAY. NON-CONTIGUOUS PROPERTIES OWNED BY THE SAME PERSON,
BUT CONNECTED BY A RIGHT-OF-WAY WHICH THE PERSON CONTROLS AND TO WHICH
THE PUBLIC DOES NOT HAVE ACCESS, IS ALSO CONSIDERED ON-SITE PROPERTY.
"OUTFALL" MEANS A POINT SOURCE.
"PERMIT" MEANS AN AUTHORIZATION, LICENSE, OR EQUIVALENT CONTROL
DOCUMENT ISSUED BY EPA OR AN APPROVED STATE TO IMPLEMET THE REQUIREMENTS
OF 40 CFR PARTS 122, 123, AND 124.
"PHYSICAL CONSTRUCTION" (IN THE RCRA PROGRAM) MEANS EXCAVATION,
MOVEMENT OF EARTH, ERECTION OF FORMS OR STRUCTURES, OR SIMILAR ACTIVITY
TO PREPARE A HWM FACILITY TO ACCEPT HAZARDOUS WASTE.
"POINT SOURCE" MEANS ANY DISCERNIBLE, CONFINED, AND DISCRETE
CONVEYANCE, INCLUDING BUT NOT LIMITED TO ANY PIPE, DITCH, CHANNEL,
TUNNEL, CONDUIT, WELL, DISCRETE FISSUFE, CONTAINER, ROLLING STOCK,
CONCENTRATED ANIMAL FEEDING OPERATION, VESSEL OR OTHER FLOATING CRAFT
FROM WHICH POLLUTANTS ARE OR MAY BE DISCHARGED. THIS TERM DOES NOT
INCLUDE RETURN FLOWS FROM IRRIGATED AGRICULTURE.
"POLLUTANT" MEANS DREDGED SPOIL, SOLID WASTE, INCINERATOR RESIDUE,
FILTER BACKWASH, SEWAGE, GARBAGE, SEWAGE SLUDGE, MUNITIONS, CHEMICAL
WASTE, BIOLOGICAL MATERIALS, RADIOACTIVE MATERIALS (EXCEPT THOSE
REGULATED UNDER TE ATOMIC ENERGY ACT OF 1954, AS AMENDED (42 U.S.C.
SECTION 2011 ET SEQ.)), HEAT, WRECKED OR DISCARDED EQUIPMENT, ROCKS,
SA.D, CELLAR DIRT AND INDUSTRIAL, MUNICIPAL, AND AGRICULTURE WASTE
DISCHARGES INTO WATER. IT DOES NOT MEAN:
(1) SEWAGE FROM VESSELS; OR
(2) WATER, GAS, OR OTHER MATERIAL WHICH IS INJECTED INTO A WELL TO
FACILITATE PRODUCTION OF OIL OR GAS, OR WATER DERIVED IN ASSOCIATION
WITH OIL AND GAS PRODUCTIO. AND DISPOSED OF IN A WELL, IF THE WELL USED
EITHER TO FACILITATE PRODUCTION OR FOR DISPOSAL PURPOSES IS APPROVED BY
AUTHORITY OF THE STATE IN WHICH THE WELL IS LOCAT-D, AND IF TE STATE
DETERMINES THAT THE INJECTION OR DISPOSAL WILL NOT RESULT IN THE
DEGRADATION OF GROUND OR SURFACE WATER RESOURCES.
(NOTE: RADIOACTIVE MATERIALS COVERED BY THE ATOMIC ENERGY ACT ARE
THOSE ENCOMPASSED IN ITS DEFINITION OF SOURCE, BYPRODUCT, OR SPECIAL
NUCLEAR MATERIALS. EXAMPLES OF MATERIALS NOT COVERED INCLUDE RADIUM AND
ACCELERATOR PRODUCED ISOTOPES. SEE TRAIN V. COLORADO PUBLIC INTEREST
RESEARC GROUP, INC., 426 U.S. 1 (1976).)
"PREVENTION OF SIGNIFICANT DETERIORIATION" (PSD) MEANS THE NATIONAL
PERMITTING PROGRAM UNDER 40 CFR 52.21 TO PREVENT EMISSIONS OF CERTAIN
POLLUTANTS REGULATED UNDER THE CLEAN AIR ACT FROM SIGNIFICANTLY
DETERIORATING AIR QUALITY IN ATTAINMENT AREAS.
"PRIMARY INDUSTRY CATEGORY" MEANS ANY INDUSTRY CATEGORY LISTED IN THE
NRDC SETTLEMENT AGREEMENT (NATURAL RESOURCES DEFENSE COUNCIL V. TRAIN, 8
ERC 2120 (D.D.C. 1976), MODIFIED 12 ERC 1833 (D.D.C. 1979)).
"PRIVATELY OWNED TREATMENT WORKS" MEANS ANY DEVICE OR SYSTEM WHICH IS
(1) USED TO TREAT WASTES FROM ANY FACILITY WHOSE OPERATOR IS NOT THE
OPERATOR OF THE TREATMENT WORKS AND (2) NOT A POTW.
"PROCESS WASTEWATER" MEANS ANY WATER WHICH, DURING MANUFACTURING OR
PROCESSING, COMES INTO DIRECT CONTACT WITH OR RESULTS FROM THE
PRODUCTION OR USE OF ANY RAW MATERIAL, INTLRMEDIATE PRODUCT, FINISHED
PRODUCT, BY-PRODUCT, OR WASTE PRODUCT.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 039 OF 74
COSTLE D M ADMINISTRATOR
EPA
113763
REGULATION
"PUBLICLY OUNED TREATMENT WORKS" OR "POTW" MEANS ANY DEVICE OR SYSTEM
USED IN THE STORAGE, TREATMENT, RECYCLING, AND RECLAMATION OF MUNICIPAL
SEWAGE OR INDUSTRIAL WASTE OF A LIQUID NATURE WHICH IS OWNED BY A STATE
OR MUNICIPALITY. THIS DEFINITION INCLUDES ANY SEWERS THAT CONVEY
WASTEWATER TO A POTW, BUT DOES NOT INCLUDE PIPES, SEWERS, OR OTHER
CONVEYANCES NOT CONNECTED TO A POTW.
"RENT" MEANS USE OF ANOTHER'S PROPERTY IN RETURN FOR REGULAR PAYMENT.
"RCRA" MEANS THE SOLID WASTE DISPOSAL ACT AS AMENDED BY THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976 "PUB. L. 94-580, AS AMENDED 0Y
PUB. L. 95-609, 42 U.S.C. SECTION 6901 ET SEQ.).
"ROCK CRUSHING AND GRAVEL WASHING FACILITIES" ARE FACILITIES WHICH
PROCESS CRUSED AND BROKEN STONE, GRAVEL, AND RIPRAP (SEE 40 CFR PART
436, SUBPART B, AND THE EFFLUENT LIMITATIONS GUIDELINES FOR THESE
FACILITIES).
"SDWA" MEANS THE SAFE DRINKING WATER ACT (PUB. L. 95-523 AS AMENDED
BY PUB. L. 95-1900, 42 U.S.C. SECTION 300(F) ET SEQ.).
"SECONDARY INDUSTRY CATEGORY" MEANS ANY INDUSTRY CATEGOFY WHICH IS
NOT A PRIMARY INDUSTRY CATEGORY.
"SEWAGE FROM VESSELS" MEANS HUMAN BODY WASTES AND THE WASTES FROM
TOILETS AND OTHER RECEPTACLES INTENDED TO RECEIVE OR RETAIN BODY WASTES
THAT ARE DISCHARGED FROM VESSELS AND REGULATED UNDER SECTION 312 OF CWA,
EXCEPT THAT WITH RESPECT TO COMMERCIAL VESSELS ON THE GREAT LAKES THIS
TERM INCLUDES GRAYWATER. FOR THE PURPOSES OF THIS DEFINITION,
"GRAYWATER" MEANS GALLEY, BATH, AND SHOWER WATER.
"SEWAGE SLUDGE" MEANS THE SOLIDS, RESIDUES, AND PRECIPITATE SEPARATED
FROM OR CREATED IN SEWAGE BY THE UNIT PROCESSES OF A POTW. "SEWAGE" AS
USED IN THIS DEFINITION MEANS ANY WASTES, INCLUDING WASTES FROM HUMANS,
HOUSEHOLDS, COMMERCIAL ESTABLISHMENTS, INDUSTRIES, AD STORM WATER
RUNOFF, THAT ARE DISCHARGED TO OF OTHERWISE ENTER A PUBLICLY OWNED
TREATMENT WORKS.
"SILVICULTURAL POINT SOURCE" MEANS ANY DISCERNABLE, CONFINED, AND
DISCRETE CONVEYANCE RELATED TO ROCK CRUSHING, GRAVEL WASHING, LOG
SORTING, OR LOG STORAGE FACILITIES WHICH ARE OPERATED IN CONNECTION WITH
SILVICULTURAL ACTIVITIES AND FROM WHICH POLLUTANTS ARE DISCHARGED INTO
WATERS OF THE UNITED STATES. THIS TERM DOES NOT INCLUDE NONPOINT SOURCE
SILVICULTURAL ACTIVITIES SUCH AS NURSERY OPERATIONS, SITE PREPARATION,
REFORESTATION AND SUBSEQUENT CULTURAL TREATMENT, THINNING, PRESCRIBED
BURNING, PEST AND FIRE CONTROL, HARVESTING OPERATIONS, SURFACE DRAINAGE,
OR ROAD CONSTRUCTION AND MAINTENANCE FROM WHICH THERE IS NATURAL RUNOFF.
HOWEVER, SOME OF THESE ACTIVITIES (SUCH AS STREAM CROSSING FOR ROADS)
MAY INVOLVE POINT SOURCE DISCHARGES OF DREDGED OR FILL MATERIAL WICH MAY
REQUIRE A CWA SECTION 404 PERMIT. "LOG SORTINC AND LOG STORAGE
FACILITIES" ARE FACILITIES WHOSE DISCHARGES RESULT FROM THE HOLDING OF
UNPROCESSED WOOD, E.G., LOGS OR ROUNDWOOD WITH BARK OR AFTER REMOVAL OF
BARK IN SELF-CONTAINED BODIES OF WATER (MILL PONDS OR LOG PONDS) OR
STORED ON LAND WHERE WATER IS APPLIED INTENTIONALLY ON THE LOGS (WET
DECKING). (SEE 40 CFR PART 429, SUBPART J, AND THE EFFLUENT LIMITATIONS
GUIDELINES FOR THESE FACILITIES.)
"STATE" MEANS ANY OF THE 50 STATES, THE DISTRICT OF COLUMBIA, GUAM,
THE COMMONWEALTH OF PUERTO RICO, THE VIRGIN ISLANDS, AMERICAN SAMOA, THE
TRUST TERRITOFY OF THE PACIFIC ISLANDS (EXCEPT IN THE CASE OF RCRA), AND
THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS (EXCEPT IN THE CASE OF
CWA).
"STATIONARY SOURCE" (IN THE PSD PROGRAM) MEANS ANY BUILDING,
STRUCTURE, FACILITY, OR INSTALLATION WHICH EMITS OR MAY EMIT ANY AIR
POLLUTANT REGULATED UNDER THE CLEAN AIR ACT. "BUILDING, STRUCTURE,
FACILITY, OR INSTALLATION" MEANS ANY GROUPING OF POLLUTANT-EMITTING
ACTIVITIES WHICH ARE LOCATED ON ONE OR MORE CONTIGUOUS OR ADJACENT
PROPERTIES AND WHICH ARE OWNED OR OPERATED BY THE SAME PERSON (OR BY
PERSONS UNDER COMMO CONTROL).
"STORAGE" (IN THE RCRA PROGRAM) MEANS THE HOLDING OF HAZARDOUS WASTE
FOR A TEMPORARY PERIOD AT THE END OF WHICH THE HAZARDOUS WASTE IS
TREATED, DISPOSED, OR STORED ELSEHERE.
"STORM WATER RUNOFF" MEANS WATER DISCHARGED AS A RESULT OF RAIN,
SNOW, OR OTHER PRECIPITATION.
"TOXIC POLLUTANT" MEANS ANY POLLUTANT LISTED AS TOXIC UNDER SECTION
307(A)(1) OF CWA.
"TRANSPORTER" (IN THE RCRA PROGRAM) MEANS A PERSON ENGAGED IN THE
OFF-SITE TRANSPORTATION OF HAZARDOUS WASTE BY AIR, RAIL, HIGHWAY, OR
WATER.
"TREATMENT" (IN THE RCRA PROGRAM) MEANS ANY METHOD, TECHNIQUE, OR
PROCESS, INCLUDING NEUTRALIZATION, DESIGNED TO CHANGE THE PHYSICAL,
CHEMICAL, OR BIOLOGICAL CHARACTER OR COMPOSITION OF ANY HAZARDOUS WASTE
SO AS TO NEUTRALIZE SUCH WASTE, OR SO AS TO RECOVER ENERGY OR MATERIAL
RESOURCES FROM THE WASTE, OR SO AS TO RENDER SUCH WASTE NON-HAZARDOUS,
OR LESS HAZARDOUS; SAFER TO TRANSPORT, STORE, OR DISPOSE OF; OR
AMENABLE FOR RECOVERY, AMENABLE FOR STORAGE, OR REDUCED IN VOLUME.
"UNDERGROUND INJECTION" MEANS WELL INJECTION.
"UNDERGROUND SOURCE OF DRINKING WATER" OR "USDW" MEAS AN AQUIFER OR
ITS PORTION WHICHIS NOT AN EXEMPTED AQUIFER AND:
(1) WHICH SUPPLIES DRINKING WATER FOR HUMAN CONSUMPTION, OR
(2) IN WHIC THE GROUND WATER CONTAINS FEWER THAN 10,000 MG/L TOTAL
DISSOLVED SOLIDS.
"UPSET" MEANS AN EXCEPTIONAL INCIDENT IN WHICH THLRE 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 CAUSED
BY OPERATIONAL ERROR, IMPROPERLY DESIGNED TREATMENT FACILITIES,
INADEQUATE TREATMENT FACILITIES, LACK OF PREVENTIVE MAINTENANCE, OR
CARELESS OR IMPROPER OPERATION.
"WATERS OF TE UNITED STATES" MEANS:
1. ALL WATERS WHICH ARE CURRENTLY USED, WEFE USED IN THE PAST, OR
MAY BE SUSCEPTIBLE TO USE IN INTERSTATE OR FOREIGN COMMERCE, INCLUDING
ALLWATERS WHICH ARE SUBJECT TO THE EBB AND FLOW OF THE TIDE;
2. ALL INTERSTATE WATERS, INCLUDING INTERSTATE WETLANDS;
3. ALL OTHER WATERS SUCH AS INTRASTATE LAKES, RIVERS, STREAMS
(INCLUDING INTERMITTENT STREAMS), MUDFLATS, SANDFLATS, WETLANDS,
SLOUGHS, PRAIRIE POTHOLES, WET MEADOWS, PLAYA LAKES, AND NATURAL PONDS,
THE USE, DEGRADATION, OR DESTRUCTION OF WHICH WOULD OR COULD AFFECT
INTERSTATE OR FOREIGN COMMERCE INCLUDING ANY SUCH WATERS:
(A) WHICHARE OR COULD BE USED BY INTERSTATE OR FOREIGN TRAVELERS FOR
RECREATIONAL OR OTHER PURPOSES;
(B) FROM WHICH FISH OR SHELLFISH ARE OR COULD BE TAKEN AND SOLD IN
INTERSTATE OR FOREIGN COMMERCE;
(C) WHICH ARE USED OR COULD BE USED FOR INDISTRIAL PURPOSES BY
INDUSTRIES IN INTERSTATE COMMERCE;
4. ALL IMPOUNDMENTS OF WATERS OTHERWISE DEFINED AS WATERS OF THE
UNITED STATES UNDER THIS DEFINITION;
5. TRIBUTARIES OF WATERS IDENTIFIED IN PARAGRAPHS (1)-(4) A0OVE;
6. THE TERRITORIAL SEA; AND
7. WETLANDS ADJACENT TO WATERS (OTHER THAN WATERS TAT ARE THEMSELVES
WETLANDS) IDENTIFIED IN PARAGRAPHS (1)-(6) OF THIS DEFINITION.
WASTE TREATMENT SYSTEMS, INCLUDING TREATMENT PONDS OR LAGOONS
DESIGNED TO MEET REQUIREMENT OF CWA (OTHER TAN COOLING PONDS AS DEFINED
IN 40 CFR SECTION 423.11(M) WHICH ALSO MEET THE CRITERIA OF THIS
DEFINITION) ARE NOT WATERS OF THE UNITED STATES. THIS EXCLUSION APPLIES
ONLY TO MANMADE BODIES OF WATER WHICH NEITHER WERE ORIGINALLY CREATED IN
WATERS OF THE UNITED STATES (SUCH AS A DISPOSAL AREA IN WETLANDS) NOR
RESULTED FFO THE IMPOUNDMETS OF WATERS OF THE UNITED STATES.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 040 OF 74
COSTLE D M ADMINISTRATOR
EPA
113764
REGULATION
"WELL INJECTION" OR "UNDERGROUND INJECTION" MEANS TE SUBSURFACE
EMPLACEMENT OF FLUIDS THROUGH A BORED, DRILLED, OR DRIVEN WELL; OR
THROUGH A DUG WELL, WHERE TE DEPTH OF THE DUG WELL IS GREATER THAN THE
LARGEST SURFACE DIMENSION.
"WETLANDS" MEANS THOSE AREAS THAT ARE INUNDATED OF SATURATED BY
SURFACE OR GROUND WATER AT A FREQUENCY AND DURATION SUFFICIENT TO
SUPPORT, AND THAT UNDER NORMAL CIRCUMSTANCES DO SUPPORT, A PREVALENCE OF
VEGETATION TYPICALLY ADAPTED FOR LIFE IN SATURATED SOIL CONDITIONS.
WETLANDS GENERALLY INCLUDE SWAMPS, MARSHES, BOGS, AND SIMILAR AREAS.
BILLING CODE 6560-01-M
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 041 OF 74
COSTLE D M ADMINISTRATOR
EPA
113765
REGULATION
EPA FORM 3510-1 (5-80)
FORM OMITTED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 042 OF 74
COSTLE D M ADMINISTRATOR
EPA
113766
REGULATION
EPA FORM 3510-1 (5-80) REVERSE
FORM OMITTED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 043 OF 74
COSTLE D M ADMINISTRATOR
EPA
113767
REGULATION
/1/ A PERMIT IS NOT REQUIRED UNLESS THE FACILITY HAS A LIQUID MANURE
HANDLING SYSTEM OR CONTINUOUS OVERFLOW WATERING.
THIS FORM MUST BE COMPLETED BY ALL APPLICANTS WHO CHECK "YES" TO ITEM
II-B IN FORM 1. NOT ALL ANIMAL FEEDING OPERATIONS OR FISH FARMS ARE
REQUIRED TO OBTAIN NPDES PERMITS. EXCLUSIONS ARE BASED ON SIZE AND
OCCURENCE OF DISCHARGE. SEE THE DESCRIPTION OF THESE STATUTORY AND
REGULATORY EXCLUSIONS THE GENERAL INSTRUCTIONS WHICH ACCOMPANY FORM 1.
IN PARTICULAR, FOR ANIMAL FEEDING OPERATIONS, THE SIZE CUTOFFS DEPEND ON
WHETHER OR NOT POLLUTANTS ARE DISCHARGED THROUGH A MAN-MADE DEVICE OR BY
DIRECT CONTACT WITH THE FACILITY OR ANIMALS. A FACILITY FOR LAYING HENS
OR BROILERS IS NOT REQUIRED TO HAVE A PERMIT UNLESS IT AS A LIQUID
MANURE HANDLING SYSTEM OR CONTINUOUS OVERFLOW WATERING. ALSO,
FACILITIES WHICH DISCHARGE ONLY IN THE CASE OF A 25 YEAR, 24 HOUR STORM
EVENT ARE NOT REQUIRED TO HAVE A PERMIT.
FOR AQUATIC ANIMAL PRODUCTION FACILITIES, THE SIZE CUTOFFS ARE BASED
ON WHETHER THE SPECIES ARE WARM WATER OR COLD WATER, ON THE PRODUCTION
WEIGHT PER YEAR IN HARVESTABLE POUNDS, AND ON THE AMOUNT OF FEEDING IN
POUNDS OF FOOD (FOR COLD WATER SPECIES). ALSO, FACILITIES WHICH
DISCHARGE LESS THAN 30 DAYS PER YEAR, OR ONLY DURING PERIODS OF EXCESS
RUNOFF (FOR WARM WATER FISH) ARE NOT REQUIRED TO HAVE A PERMIT.
ITEM I-A. SEE THE NOTE ABOVE AND THE GENERAL INSTRUCTIONS WHICH
ACCOMPANY FORM 1 TO BE SURE THAT YOUR FACILITY IS "CONCENTRATED."
ITEM I-B. IF YOUR ANSWER TO ITEM VI OF FORM 1 DOES NOT GIVE A
COMPLETE LEGAL DESCRIPTION OF YOUR FACILITY'S LOCATION, USE THIS SPACE
TO PROVIDE A COMPLETE DESCRIPTION, SUCH AS QUARTER, SECTION, TOWNSHIP,
AND RANGE.
ITEM I-C. CHECK "PROPOSED" IF YOUR FACILITY IS NOT NOW IN OPERATION,
OR NOT NOW "CONCENTRATED" UNDER THE DEFINITION IN THE GLOSSARY FOUND IN
THE GENERAL INSTRUCTIONS WHICH ACCOMPANY FORM 1.
ITEM II. SUPPLY ALL INFORMATION IN ITEM II IF YOU CHECKED (1) IN
ITEM I-A.
ITEM II-A. GIVE THE MAXIMUM NUMBER OF EACH TYPE OF ANIMAL IN OPEN
CONFINEMENT OR HOUSED UNDER ROOF (EITHER PARTIALLY OR TOTALLY) WHICH ARE
HELD AT YOUR FACILITY FOR A TOTAL OF 45 DAYS OR MORE IN ANY 12 MONTH
PERIOD.
USE THE FOLLOWING CATEGORIES FOR TYPE OF ANIMALS:
SLAUGHTER CATTLE; FEEDER CATTLE; MATURE DAIRY CATTLE (MILKED OR
DRY);.SWINE (EACH WEIGHING OVER 55 POUNDS); HORSES; SHEEP; LAMBS;
TURKEYS; LAYING HENS; /1/ BROILERS; /1/ DUCKS.
ITEM II-B. GIVE ONLY THE AREA USED FOR THE ANIMAL CONFINEMENT OR
FEEDING FACILITY. DO NOT INCLUDE ANY AREA USED FOR GROWING OR OPERATING
FEED.
ITEM II-C. CHECK "YES" IF ANY SYSTEM FOR COLLECTION OF RUNOFF HAS
BEEN CONSTRUCTED. SUPPLY THE INFORMATION UNDER (1), (2), AND (3) TO THE
BEST OF YOUR KNOWLEDGE.
ITEM III. SUPPLY ALL INFORMATION IN ITEM III IF YOU CHECKED (2) IN
ITEM I-A.
ITEM III-A. OUTFALLS SHOULD BE NUMBERED TO CORRESPOND WIT THE MAP
SUBMITTED IN ITEM XI OF FORM 1. VALUES GIVEN FOR FLOW SHOULD BE
REPRESENTATIVE OF YOUR NORMAL OPERATION. THE MAXIMUM DAILY FLOW IS THE
MAXIMUM MEASURED FLOW OCCURRING OVER A CALENDAR DAY. THE MAXIMUM 3U-DAY
FLOW IS THE AVEFAGE OF MEASURED DAILY FLOWS OVER THE CALENDAR MONTH OF
HIGHEST FLOW. THE LOG-TERM AVERAGE FLOW IS THE AVERAGE OF MEASURED
DAILY FLOWS OVER A CALENDAR YEAR.
ITEM III-B. GIVE THE TOTAL NUMBER OF DISCRETE PONDS OR RACEWAYS IN
YOUR FACILITY. UNDER "OTHER", GIVE A DESCRIPTIVE NAME OF ANY STRUCTURE
WHICH IS NOT A POND OR A RACEWAY BUT WHICH RESULTS IN DISCHARGE TO
WATERS OF THE UNITED STATES.
ITEM III-C. USE NAMES FOR THE RECEIVING WATER AND SOURCE OF WATER
WHICH CORRESPOND TO THE MAP SUBMITTED IN ITEM XI OF FORM 1.
ITEM III-D. THE NAMES FOR FIS SPECIES SHOULD BE PROPER, COMMON, OR
SCIENTIFIC NAMES AS GIVEN IN SPECIAL PUBLICATION NO. 6 OF THE AMERICAN
FISHERIES SOCIETY, "A LIST OF COMMON AND SCIENTIFIC NAMES OF FISHES FROM
THE UNITED STATES AND CANADA." THE VALUES GIVEN FOR TOTAL WEIGHT
PRODUCED BY YOUR FACILITY PER YEAR AND THE MAXIMUM WEIGHT PRESENT AT ANY
ONE TIME SHOULD BE REPRESENTATIVE OF YOUR NORMAL OPERATION.
ITEM III-E. THE VALUE GIVEN FOR MAXIMUM MONTHLY POU.DS OF FOOD
SHOULD BE REPRESENTATIVE OF YOUR NORMAL OPERATION.
ITEM IV. THE CLEAN WATER ACT PROVIDES FOR SEVERE PENALTIES FOR
SUBMITTING FALSE INFORMATION ON THIS APPLICATION FORM.
SECTION 3U9(C)(2) OF THE CLEAN WATER ACT PROVIDES THAT "ANY PERSON
WHO KNOWINGLY MAKES ANY FALSE STATEMENT, REPRESENTATION, OR
CERTIFICATION IN ANY APPLICATION . . . SHALL UPON CONVICTION, BE
PUNISHED BY A FINE OF NO MORE THAN $10,000 OR BY IMPRISONMENT FOR NOT
MORE THAN SIX MONTHS, OR BOT."
FEDERAL REGULATIONS REQUIRE THE CERTIFICATION TO BE SIGNED AS
FOLLOWS:
(1) FOR CORPORATION, BY A PRINCIPAL EXECUTIVE OFFICER OF AT LEAST TE
LEVEL OF VICE PRESIDENT;
(2) FOR A PARTNERSHIP OR SOLE PROPRIETORSHIP, BY A GENERAL PARTNER OR
THE PROPRIETOR, RESPECTIVELY; OR
(3) FOR A MUNICIPALITY, STATE, FEDERAL, OR OTHER PUBLIC FACILITY, BY
EITHER A PRINCIPAL EXECUTIVE OR RANKING ELECTED OFFICIAL.
BILLING CODE L560-01-M
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 044 OF 74
COSTLE D M ADMINISTRATOR
EPA
113768
REGULATION
U.S. ENVIRONMENTAL PROTECTION AGENCY APPLICATION FOR PERMIT TO
DISCHARGE WASTEWATER CONCENTRATED ANIMAL FEEDING OPERATIONS AND AQUATIC
ANIMAL PRODUCTION FACILITIES CONSOLIDATED PERMITS PROGRAM
FACSIMILE FORM OMITTED.
FEDERAL REGISTER, PART 11, 800519
CONSOLIDATED PERMIT APPLICATION FORMS FOR EPA PROGRAMS
40 CFR PARTS 122, 123, 124, AND 125, VOLUME 45 NUMBER 98, FRL-1453-4
PART 045 OF 74
COSTLE D M ADMINISTRATOR
EPA
113769
REGULATION
THIS FORM MUST BE COMPLETED BY ALL APPLICANTS WHO CHECK "YES" TO ITEM
II-C IN FORM 1.
PUBLIC AVAILABILITY OF SUBMITTED INFORMATION. YOUR APPLICATION WILL
NOT BE CONSIDERED COMPLETE UNLESS YOU ANSWER EVERY QUESTION ON THIS FORM
AND ON FORM 1. IF AN ITEM DOES NOT APPLY TO YOU, ENTER "NA" (FOR NOT
APPLICABLE) TO SHOW TAT YOU CONSIDERED THE QUESTION.
YOU MAY NOT CLAIM AS CONFIDENTIAL ANY INFORMATION REQUIRED BY THIS
FORM OR FORM 1, WHETHER THE INFORMATIO IS REPORTED ON THE FORMS OR IN AN
ATTACHMENT. TIS INFORMATION WILL 0E MADE AVAILABLE TO THE PU0LIC UPO
REQUEST.
ANY INFOFMATION YOU SUBMIT TO EPA WHIC GOES BEYOND THAT REQUIRED BY
THIS FORM AND FORM 1 YOU MAY CLAIM AS CONFIDENTIAL, BUT CLAIMS FOR
INFORMATION WHICH IS EFFLUENT DATA WILL BE DEIED. IF YOU DO NOT ASSERT
A CLAIM OF CONFIDENTIALITY AT THE TIME OF SUBMITTING THE INFORMATION,
EPA MAY MAKE THE INFORMATION PUBLIC WITHOUT FURTHER OTICE TO YOU.
CLAIMS OF CONFIDENTIALITY WILL BE HANDLED IN ACCORDANCE WITH EPA'S
BUSINESS CONFIDENTIALITY REGULATIOS AT 40 CFR PART 2.
DEFINITIONS. ALL SIGIFICANT TERMS USED IN THESE INSTRUCTIONS AND IN
THE FORM ARE DEFINED IN THE GLOSSARY FOUND IN THE GENERAL INSTRUCTIONS
WHICH ACCOMPANY FOR 1.
EPA I.D. NUMBER. FILL IN YOUR EPA IDENTIFICATION NUMBER AT THE TOP
OF EACH PAGE OF FORM 2C. YOU MAY COPY THIS UMBER DIRECTLY FROM ITEM I
OF FORM 1.
ITEM I. YOU MAY USE THE MAP YOU PROVIDED FOR ITEM XI OF FORM 1 TO
DETERMINE THE LATITUDE AND LONGITUDE OF EACH OF YOUR OUTFALLS AND THE
NAME OF THE RECEIVING WATER.
ITEM II-A. THE LINE DRAWING SOULD SHOW GENERALLY THE ROUTE TAKEN BY
WATER IN YOUR FACILITY FROM INTAKE TO DISCHARGE. SHOW ALL OPERATIONS
CONTRI0UTING WASTEWATER, INCLUDING PROCESS AND PRODUCTION AREAS,
SANITARY FLOWS, COOLING WATER, AND STORMWATER RUNOFF. YOU MAY GROUP
SIMILAR OPERATIONS INTO A SINGLE UNIT, LABELED TO CORRESPOND TO THE MORE
DETAILED LISTING IN ITEM II-B. THE WATER BALANCE SHOULD SOW AVERAGE
FLOWS. SHOW ALL SIGNIFICANT LOSSES OF WATER TO PRODUCTS, ATMOSPERE, AND
DISCHARGE. YOU SHOULD USE ACTUAL MEASUREMENTS WHENEVER AVAILABLE;
OTHERWISE USE YOUR BEST ESTIMATE. AN EXAMPLE OF AN ACCEPTABLE LINE
DRAWING APPEARS IN FIGURE 2C-1 TO THESE INSTRUCTIONS.
ITEM II-B. LIST ALL SOURCES OF WASTEWATER TO EACH OUTFALL.
OPERATIONS MAY BE DESCRIBED IN GENERAL TERMS (FOR EXAMPLE, "DYE-MAKING
REACTOR" OR "DISTILLATION TOWER"). YOU MAY ESTIMATE THE FLOW
CONTRIBUTED BY EACH SOURCE IF NO DATA IS AVAILABLE, AND FOR STORMWATER,
YOU MAY USE ANY REASONABLE MEASURE OF DURATIO