federal register thursday, november 18, 1982 proposed rulesfederal register / vol. 47, no. 223 /...

Federal Register / Vol. 47, No. 223 / Thursday, November 18, 1982 / Proposed Rules

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 122, 124 and 125

(WH-FRL 2228-61

Consolidated Permit Regulations;Revision in Accordance WithSettlement I

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Proposed rulemaking.

SUMMARY: On June 7, 1982, EPA enteredinto a settlement agreement on CleanWater Act issues with numerousindustry petitioners in the consolidatedpermit regulations litigation (NRDC v.EPA and consolidated cases, No. 80-1607 (D.C. Cir. filed June 2, 1980)). Thisrulemaking proposes to revise certainprovisions of the consolidated permitregulations affecting National PollutantDischarge Elimination System (NPDES)permits in accordance with thatsettlement. The proposed changes willhave the effect of reducing theregulatory burdens imposed onpermittees under the NPDES permittingprogram administered by EPA orapproved States, while still achievingthe environmental goals the program isintended to achieve.

These proposed changes, and othersthat we expect to make, are alsointended to deal with concerns raised bythe President's Task Force onRegulatory Relief. The Task Force hasasked that the Agency review the 'consolidated permit regulations with theobjective of enhancing efficiency andeliminating unnecessary regulatoryburdens.DATES: EPA will accept publiccomments on the proposed amendmentsuntil January 17, 1983.ADDRESSES: Interested persons mayparticipate in the rulemaking bysubmitting written comments to GeorgeE. Young, Office of Water Enforcementand Permits, Permits Division (EN-336),Environmental Protection Agency, 401 MStreet, S.W., Washington, D.C. 20460.FOR FURTHER INFORMATION CONTACT:Karen Wardzinski, Office of GeneralCounsel, Environmental ProtectionAgency, 401 M Street, S.W.,Washington, D.C. 20460, 202-755-0753.SUPPLEMENTARY INFORMATION:

I. Introduction

On May 19, 1980, EPA published in theFederal Register (45 FR 35290) finalconsolidated permit regulations. Theserules are consolidated requirements and.procedures'for five EPA permitprograms, including the National

Pollutant Discharge Elimination System(NPDES) program under the CleanWater Act (CWA), Hazardous WasteManagement Program (HWMP) underthe Resource Conservation andRecovery Act (RCRA), the UndergroundInjection Control (UIC) program underthe Safe Drinking Water Act (SDWA),State "Dredge or Fill" permit programsunder section 404 of the CWA, and thePrevention of Significant Deterioration(PSD) program under the Clean Air Act(CAA). For more information on thedevelopment of these regulations, see 47FR 25546-47 (June 14, 1982).

Petitions to review the finalconsolidated permit regulations werefiled in several United States Courts ofAppeals and subsequently consolidatedin the District of Columbia Circuit(NRDC v. EPA, and consolidated cases(No. 80-1607)). EPA held extensivediscussions on all issues raised in thesepetitions and subsequently signed fourseparate settlement agreements withindustry litigants. The first of theseaddresses substantive issues affectingonly the UIC program, and was signedon July 22, 1981. Final amendmentsimplementing that agreement werepublished in the Federal Register onSeptember 27, 1981 (46 FR 43156), and onFebruary 3, 1982, (47 FR 4992). Thesecond agreement, signed on November16, 1981, addresses substantive issuesaffecting only the RCRA program. OnApril 8, 1982, EPA issued technicalamendments and a RegulatoryInterpretation Memorandum in partial*fulfillment of its obligations under thatAgreement, (47 FR 15304 and 47 FR15307). In addition, EPA has recentlyproposed one substantive amendment tothe RCRA portion of the consolidatedpermit regulations (47 FR 32038, July 23,1982) and intends to propose additionalamendments implementing theremainder of the settlement agreementbefore the end of the year.

The third agreement, also signed onNovember 16, 1981, and filed with theD.C..Circuit, relates to issues raised bythe parties which were common to atleast two of the three programs involvedin the litigation [i.e. RCRA, NPDES, andUIC]. This agreement also resolves threeNPDES issues which affect thedefinition of "new discharger" and itseffect on mobile drilling rigs. Proposedregulations under this third agreement(the "Common Issues/New DischargerAgreement") were published on June 14,1982 (47 F.R. 25546).

This proposal implements the fourthand final settlement agreement, dealingwith those NPDES issues not resolvedby the Common Issues/New DischargerAgreement. Copies of the settlementagreement are available for inspection

and copying from the EPA Office ofGeneral Counsel or Regional Counselsat the following addresses:Associate General Counsel, for Water

and Solid Waste, 401 M Street, SW.,Washington, DC 20460

Regional Counsel, Region I, John F.Kennedy Federal Building, Room 2203,Boston, Massachusetts 02203

Regional Counsel, Region II, 26 FederalPlaza, Room 1009, New York, NewYork 10007

Regional Counsel, Region III, CurtisBuilding, 6th and Walnut Streets,Philadelphia, Pennsylvania 19106

Regional Counsel, Region IV, 345Courtland Street, N.E.. Atlanta,Georgia 30308

Regional Counsel, Region V, 230 SouthDearborn Street, Chicago, Illinois60604

Regional Counsel, Region VI, FirstInternational Building, 1201 ElmStreet, Dallas, Texas 75270

Regional Counsel, Region VII, 324 Eastlth Street, Kansas City, Missouri64108

Regional Counsel, Region VIII, 1860Lincoln Street, Denver, Colorado89203

Regional Counsel, Region IX, 215Fremont Street, San Francisco,California 94111

Regional Counsel, Region X, 1200 6thAvenue, Seattle, Washington 98101Under the terms of the NPDES

agreement, EPA must propose the rulesset forth below. As part of thesettlement, EPA also agreed to include,and has included, certain language inthis preamble. If EPA issues final ruleswhich are substantially the same as theproposed rules and do not alter theirmeaning, the parties to the settlementwill withdraw their challenges to theseregulations.

These proposed regulations weredeveloped in settlement of claims underthe Clean Water Act affecting theNPDES program. However, some of theproposed changes (we believeinadvertently) would affect the RCRA,PSD, and UIC programs as well.Although EPA does not believe it isnecessarily appropriate to amend therules governing these programs, wesolicit comment on the extent to whichthe proposed changes should affectRCRA, PSD, and UIC permitting.

Petitioners The Natural ResourcesDefense Council and Citizens for aBetter Environment are not parties tothis settlement. Their challenge will nolnecessarily be withdrawn as a result offinal promulgation of new amendedregulations. Industry expects to litigatethree NPDES issues raised by industry

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which are not covered by any of thesettlement agreements. In addition, twoof the industry parties (Mobil OilCompany and the American Iron andSteel Institute (AISI) did not join in the,settlement of the net/gross issue.(40CFR 122.63(g), Ih)), and AISI did not joinin the settlement of the total-metalsissue (40 CFR 122.63(c)). These partiesmay challenge these provisions in courtif they are issued in final form.

Elsewhere in today's Federal Register,EPA is proposing to suspend severalsections of the regulations pendirgfinalAgency rulemaking on this proposal.The proposal suspensions are alsoidentified in this preamble.

EPA solicits, and will considercarefully, public -comments on thisproposal before issuing final regulations.Comments should indlude supportingdate where necessary to support thecommenter's conclusions.

In addition, the President's Task Forceon Regulatory Relief has designated theconsolidated permit regulations forreview by EPA. Settlement of thelitigation and "implementation of theagreements represents a major portionof the Agency's -response to the TaskForce. The Agency also expects topropose-other changes to theconsolidated pernit regulations,consistent with those proposed below,in the course of this review. Thesechanges will include reorganization ofthe consolidated permit regulations toeliminate .the consolidated format. Eachpart ofthe deconsolidated regulationswill pertainsolely to one permitprogram. EPA also expects to proposefurther substantive changes to porfionsof the NPDES regulations not addressedin the litigation and substantive changesto the section 404 State programrequirements under the Clean WaterAct. We expect that these other changeswill be proposed later this year,

II. Proposed Changes

A. Storm Water Runoff Discharges (40CFR 122. 57)

1. Existing Rules. Section 122.57describes those storm water dischargeswhich areconsidered "point source"discharges under the CWA and thus aresubject to NPDES permittingrequirements. Two types of storm waterdischargers are identified. First, a"separate storm.sewer" is defined as aconveyance or system of conveyancesprimarily usedior-collecing andconveying storm water runoff 'which 'islocated in an urbanized area asdesignated by the Bureau of the Censusor which is designated by the Director,on a case-bycase basis, as a "separatestorm sewer" for any of the reasons

discussed in § 122.571c). A second typeof storm water discharge is aconveyance which discharges processwastewater or storm water runoffcontaminated by contact with wastes,raw materials, or pollutant-contaminated soil from areas used forindustrial or commercial activities. Suchconveyances are not included in thedefinition of "separate storm sewer,"but are nonetheless, considered pointsources which must obtainNPDESpermits.A conveyance .or system ofconveyances operated primarily for thepurpose of collecting and conveyingstorm water runoff which does not fitwithin either of the ahoe describedcategories is not.considered a pointsource and need not obtain an .NPDESpermit.

Section 122.57(a) explains that asingle NPDES permit can be written fora separate storm sewer systemeventhough there may be several owners oroperators of conveyances into thesystem.

Industry representatives haveexpressed severaliconcerns with theNPDES requirements for storm waterdischarges. In particular, .they contendthat storm water discharges that pose nosignificant .environmental dangershould not be considered "pointsources" subject to permittingrequirements, that the definition of"contaminated" runoff is ambiguous andoverbroad, and that the lestingrequirements for applicants forindividual permits for storm waterdischarges are unduly burdensome.

2. Proposed Changes. EPA hascarefully considered these and otherviews and agrees that the NPDES permitprogram for storm water dischargesshould be-revised.Severalchaniges tothe regulations are proposed.

Definitions

The categories of storm waterdischarges which would be considered"point sources" subject to NPDESpermitting would be limited. The term"separate storm sewer" would beeliminated -and replaced with the term"storm water discharge." A storm waterdischarge would be defined as aconveyance ur system of conveyancesprimarily used for collecting andconveyance or system of conveyancesprimarily used for collecting andconveying storm water runoff which iseither:

(1) Contaminated by contact withprocess wastes, raw materials, toxicpollutants, hazardous pbllutandts listed inTable V of Appendix D to Part 122. or oiland grease; or

(2) Designated as a storm waterdischarge by the Director.

A conveyance or system ofconveyances operated primarily for thepurpose of collecting and conveyingstorm water runoff that .does notconstitute a "storm water discharge"under this definition would not beconsidered a point source subject to therequirements of the Clean Water Act,(see NRDC v. Train, 568 F.2d 1393 (D.C.Cir. 1977), noting EPA's discretion todetermine what is a "point source" forpurposes of the Clean Water Act). EPAbelieves that such discharges aregenerally de minimis sources ofpollution which Cobgress did not intendto regulate through the NPDES program.

Conveyances that discharge stormwater.runoff combined with municipalsewage are notconsidered "storm waterdischarges" under the definition in thissection, but are point sources subject toNPDES permit requirements. Today'sproposed rule changes for storm waterhave no affect on these municipaldischarges.

Application RequirementsEPA also proposes to reduce many of

the NPDES application requirements asthey apply to storm water discharges.Though the proposedxedefinition ofpoint source storm water dischargesfocuses on "contaminated" discharges,most such discharges are expected topose far less environmental concernthan typical industrial discharges. Inmany cases, the extensive testing andreporting required by the regulationswould nat be necessary in order to issueadequate permits. In addition, EPA andthe States must rdissue large numbers ofexpired NPDES permts. Since priority isgiven to the issuance of permits to newsources and new dischargers and tomajor existing industrial and municipalsources, the issuance of permits -to stormwater dischargers may not receiveimmediate attention. Any data suppliednow probably would be outdated by thetime permit writers acted to issue orreissue permits for storm waterdischarges. Therefore, we propose toeliminate many of the applicationrequirements for storm waterdischarges.

The amount-of -information anapplicant will be required to submitwould depend upon the particularcategory of storm water dischargeinvolved. We have divided storm waterdischarges intotwo broad groups basedupon their potential for significantpollution problems, imposing fewersubstantive application requirements onthose discharges less likely to includesignificant sources of pollution. Thiswould substantially lessen the burdenson applicants whose discharges are

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52074 Federal Register / Vol. 47, No. 223 / Thursday, November 18, 1982 / Proposed Rules

minor sources of pollution, yet wouldprovide permit writers with minimuminformation with which to fashionpermit requirements or to determinewhat further information may benecessary in particular cases.

* Group I

The first group of storm waterdischarges potentially poses moresignificant pollution problems than thesecond group. This first group consistsof 3 categories of storm waterdischarges:(1) Those which are subject to specific

effluent limitations guidelines or toxicpollutant effluent standards;

(2) Those which are designated assignificant contributors of pollution bythe Director under § 122.57(c); or

(3) Those which are located atindustrial facilities in areas immediatelyadjacent to the industrial plant or inplant associated areas, if there is apotential for a significant discharge ofrunoff contaminated by contact withprocess wastes, raw materials, toxicpollutants or hazardous substances.This third category covers conveyancesthat discharge storm water runoff thathas the potential for becomingcontaminated from contact with rawmaterials, intermediate or finishedproducts, wastes, or substances used inproduction or treatment operations. Theterm "plant associated areas" includessuch areas as industrial plant yards,immediate access roads, drainageponds, refuse piles, storage piles orareas, and material or product loadingand unloading areas. The term excludescommercial areas located on plant landsseparate from the plant's industrialactivities, such as office buildings andaccompanying parking lots, since we donot expect significant contaminationfrom process operations to occur there.

Group I storm water dischargerswould be required to submit NPDESapplications that comply with all therequirements of §§ 122.4 and 122.53(d),and EPA consolidated permitapplication Forms 1 and 2c (see 45 FR33516), with one exception. We proposeto delete the requirements in§ 122.53(d)(7)(iii) that applicants reportquantitative data. Group I dischargerswould be required only to indicate inItems V-B and V-C of Form 2c whetherthey believe any of the listed pollutantsare present or absent and brieflydescribe why. Applicants would not berequired to test for pollutants that theybelieve to be present. Elsewhere intoday's Federal Register we areproposing to suspend these sameprovisions pending issuance of finalrulemaking on this proposal.

Because many storm water dischargesmay prove to be minor sources ofpollution, EPA does not believe thatsuch dischargers should be required tobear the cost of testing for pollutantslisted in Items V-B and V-C of Form 2c.Applicants must still test for thosepollutants listed in Item V-A of Form 2c(see § 122.53(d)(7)(i)). This testing is lessexpensive than the testing required forItems V-B and V-C. The testing datasubmitted under Item V-A may alert apermit writer to the possible significantpollution problems, and thus prompt arequest for testing or additionalinformation. EPA expects to provideguidance to aid permit writers in issuinggeneral permits for many of thedischarges within Group I based uponthe information they receive throughthese revised requirements.

* Group I

The second group consists of all pointsource storm water discharges requiredto be permitted under § 122.57 that arenot included in Group I (for example,point source runoff from office buildingsor parking lots physically separate fromindustrial areas). In general, the stormwater discharges included in Group IIare less likely than those in Group Itocreate significant pollution problems.Moreover, the potential numbers ofdischarges falling into Group II is evengreater than those in Group I.Accordingly, EPA proposes to furtherreduce the information these dischargersmust submit to the permitting authority.The proposed rules would require onlybasic information to identify the type,number, and location of Group II stormwater discharges. Testing for pollutantslisted in Item V would be eliminated.Group II dischargers would, however,submit all of Form 1 of the NPDESconsolidated permit application, exceptfor Item XI (§ 122.4(d)) which requires atopographic map of the permitted area.Since our primary purpose in requestinginformation from Group II dischargers isto obtain general identificationinformation, the detail provided by atopographic map is not necessary at thistime.

In addition, the only requirements ofForm 2c that are applicable to Group IIdischarges would be Items I and II-B(see §§ 122.53(d)(1), (d)(3), and (d)(4),indicating the location and flow of eachstorm water outfall, the name of thereceiving water, and any treatmentbeing done. These requirements wouldenable EPA to identify and locate stormwater outfalls and to confirm that suchdischarges should not be regulated asGroup I discharges. Group II permitapplicants Would also have to completethe requirements of Item IX (see

§ 122.6(d)), certification of the permitapplication. All other provisions of Form2c (Items II-A, III, IV, V, VI, VII, andVIII) would be deleted. Thus, for GroupII permit applicants, we would deletethe requirements of § 122.53(d)(2), (d)(5),(d)(6). (d)(7), (d)(9), (d)(10), (d)(11), and(d)(12)). Elsewhere in today's FederalRegister we are proposing to suspendthe same provisions pending finalrulemaking on this proposal. Again,permit writers would retain theauthority to require additionalinformation.

Flow Information

For the purposes of § 122.53(d)(3), EPAproposes that both Group I and Group IIstorm water discharges be allowed toestimate the average flow of theirdischarge based on actual priorexperience and to indicate the rainfallevent on which the estimate is based.Since storm water generally flowsintermittently or seasonally, it would bedifficult to report average flowsaccurately as required by § 122.53(d)(3).

Signatories

Section 122.6(a) and (b) specify who isrequired to sign permit applications.EPA proposes to amend § 122.6(b) toallow permit applications for Group IIstorm water dischargers to be signed bya duly authorized representative of theperson or position identified in§ 122.6(a) as responsible for signingapplications. Storm water dischargeswould thus be treated like Class II UICwells. Group II storm water dischargersare large in number, yet, as a group,much less complex than most pointsource discharges. While EPA continuesto believe that Group II storm waterdischarges should continue to be treatedas point sources regulated under theNPDES program, we believe that thisregulation should be no moreburdensome than needed to protect theenvironment.

Application Deadlines

EPA proposes that existingunpermitted storm waterdischargers begiven six months from the date newfinal storm water regulations are issuedto submit applications. For a dischargeddesignated by the Director as a "stormwater discharge" under § 122.57(c), theapplication would be due six monthsfrom the date of notification of itsdesignation. This will allow storm waterdischargers sufficient time to gather andsubmit any information that finalregulations may require, yet avoid thepremature collection and submission ofinformation which ultimately may not berequired.



Federal Register . Vol. 47., No. 223 / Thursday, November 18, 1982 / Proposed Rules

Multiple Dischargers

As in the current regulations(§ 122.57(a)), the Director may issue onepermit coverirng-any and all storm waterdischarges which -are partof a stormwater discharge system. We propose torevise this section to clarify that, wherethere is morethan one owner oroperator of such discharges, each mustbe identifiedin an application formsubnitted'by the owner or operator ofthe Portion of the system-dischargingdirectly into waters-of the U.S. Anypermit written to cover more than oneowner oroperator must identify thelimitations applicable to each dischargeand could not, without the source'sconsent, impose -limitations on a sourcefor discharges from another source.

B. Signatories-Reports (40 7FR122.6(b)(2))

Section 122,6fb)2) xequires all reportsand other-information requiredby anNPDES permit to be signed by aprincipal executive officer of acorporation-orby a .duly authodzedrepresentative off the executive officer.Such representatives must,'however,have responsibility for the overalloperations of the regulated lacility oractivity. EPAproposes additionally toallow an-individual or position havingoverall responsibility for enirornentalmatters for the company .to beauthorized as a representative..Manycompanies have environmentalmanagers who are responsible forensuring compliance with environmentallaws. These managers are oftenincharge of the personnel who do themonitoring and sampling ana shouldbest be able tojudge the accuracy andcompleteness of NPDES reports. Suchindividuals must have overallresponsibility for enVironmental mattersfor the facility or activity, thus ensuringhigh level attention to the facility'smonitoring and reportingresponsibilities.

C. NPDES Apptiati on Requiremien tsand Toxic Contral Strategy [40 CtR122-15,.122.53, 122.61, 122.62)

Several sections of the consolidatedpermit regulations establish'EPA'sstrategy for the control of toxicpollutants through the NPDES permitprocess, The pimary mechaiism for theidentification of discharges of toxicpollutants is -the.NPDES application.form. The consolidatedpermitregulations and NPDES Form 2c(specifically, Items V and VI of theform)require that eisting industrialdischargers stbniit,"in their applicationsfor renewal, quantitative and qualitativedata for certain pollutants discharged,

used or produced at their facilities (40CFR 122.53(d) (7); (9), and 110)). Section122.53(d)(7) requires the submission ofquantitative data obtained throughanalysis of the applicant's-discharge.Certain mandatory testing is requiredfor process discharges from primaryindustry categories. In addition, -alldischargers are required to test for anypollutant listed in the Appendices toPart 122 which they have reason tobelieve may be present in theirdischarges. Section 122.53(d(9) requiresthat the applicant idft the toxicpollutarts it uses or expedts to use ormanufacture during the next five -years.Section 122.53(d)(10} requires theapplicant to include descfiptiveinformation on pollutants that it hasreason -to'believe will exceed cei'tainvalues during the next five years.

Section 122.6(e)(1).(iirequires theDirector to set limitations in a permit tocontrol all toxic pollutants which thedischarger does or-may use ormanufacture'as an-intermediate or finalproduct or by-product. Section I22,'61(a)imposes, as a permit condition, a burdenon all existing manufactuflng,comImerdial, mining and siliiculturaldischargers to -notify the Director assoon.as-they know-or have -reason tobelieve that they will'be discharging anytoxic pollutant not limited in-the permitin amounts above specified "notificationlevels" (generally 10D pg/lor 5 times themaximum value reported in theapplication, w~hichever is fiigher).Permittees must also notify the Directorwhen they have begun or-expect tobegin to use or manufacture any toxicpollutant not repofted in the pernfitapplication. (§ 12261(a)(2)). Based onsuch new use or manufacture of toxicsubstances, § 122.15{a){5)(ixJ authorizesEPA to modify.anNPDES permit.

EPA'is proposing extensive revisionsto these sections to eliniinateunnecessary and burdensome testingand reporting requirements on NPDESapplicants and pernittees. As part of thesettlement, EPA also agreed to proposechanges to portions of the applicationform instructions corresponding to thesections affected by today's proposal.The Agency is expecting to proposefurther changes to applicationrequirements in the near future. Tominimize confusion, EPA will makerevisions to the application form andinstructions atone time.

Quantitative Data Requirements

Severalof the-proposed changeswould'affect the type and amount ofinformation which must be submitted inthe NPDES application Form 2c. Theregulations at 40 CFR 122.53(d)(7) willcontinue to require that all applicants

indicate whether they have reason tobelieve that toxic pollutants listed in thetables of Appendix,D to Part 122 will beor are being discharged. In requestingthis quantitative data, however, EPAproposes to establish a threshold levelat or above which applicants will berequired to test for the presence of such

-pollutants. Below this level, applicantshave the option either-to explain whythey expedt the pollutant to bedischarged orto repot.quantitativedata. In establishing thiscut-off level fortesting purposes, we are minimizing theburden of analytical requirements onperriittees, -while still proViding permitwriterswith sufficienthinformation toevaluate accurately a discharger'seffluerit and to impose:adequatelimitations.

For those pollutants'listed in Tables I1and III of Appendix D (the'toxicpollutants and total phenols)(§ 122.53(d)7)(iii-j(A)), EPA wouldrequire permit applicants to reportquantitative data for-pollutants theyexpect to be discharged inconcentrations of 100 Ag/I or patts perbillion (ppb) or greater, with theexception of four pollutants for whichthe threshold is 500 ppb or greater. Thiscut-off does not-apply to processdischarges from applicants.in theprimary industry categories for whichapplicants must slill report quantitativedata as specified in'§ 122.53fd)(7)(ii] andAppendix D to Part 122.

EPA believes that 100 ppb is areasonable threshold level. Insufficientinformation is available to set differentthresholdlimits accurately for eachtoxic pollutant -which potentiallyrequires testing. EPA therefore set alevel at which discharges may be aconcern for at leadt a substantialnumber of pollutants. EPA water qualitycriteria indicate that many ofthe

. pollutants required to'be-analyzed are •known to cause significant adverseimpact to aquatic-organisms and humanhealth at levels of 100ppb orless. Ofcourse, .in imposing water quality basedeffluent limitations permit writers -should consider stream flow, mixingzones, and other site-specific factors,but these factors should be evaluated in

-connection with the quantitative datafor a given digcharge. In addition, basedon an assessment of GasChromatograpihy/Mass Spectrometry(GC/MS) methods 624 and 625, proposedby EPA on December 3, 1979, 44 FR69464, the.Agency has determined that100 ppbrepresents a technicallyachievable level of measurement formost toxicpollutants. For those toxicpollutants in.GC/MS methods 624 and625 with method detection limits of 10

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ppb or less, EPA allowed a factor of 10or more for analytical variability at thelower concentration levels. The Agencyfinds this factor of 10 to be aconservative estimate of analyticalvariability based on our experience inusing GC/MS to analyze hundreds ofwastewater samples during EffluentGuidelines Division industrial surveys.EPA has determined, using these samecriteria for evaluating toxic pollutants,that in the case of four pollutants(acrolein, acrylonitrile, 2,4-dinitrophenol, and 2-methyl-4,6-dinitrophenol) a higher threshold level isappropriate. Since these four pollutantshave method detection limits of 100-250ppb (see 44 FR 69464), EPA has raisedthe threshold level (for application formpurposes) for these four pollutants to 500ppb. A factor of 10 is not used, nor is itappropriate at these higherconcentration levels, since there is lessanalytical variability at 500 ppb.

EPA solicits comments on additionalpollutants for which the 100 ppb cut-offlevel may be either too high or too low,and requests supporting data indicatinga more appropriate level for thesepollutants.

The 100 ppb level is intended only tobe a threshold level for applicationpurposes. It does not mean that permitlimitations should necessarily be set forpollutants present at 100 ppb, or that itmay never be appropriate to setlimitations below this level. Thesubmission of quantitative data,whether under § 122.53(d)(7)(iii),(d)(7)(ii) (for specified GC/MSfractions), or otherwise, does notautomatically trigger the establishmentof effluent limitations for the pollutantsreported. Before setting technology-based limitations on pollutants presentin a discharger's effluent at any level,the permit writer must consider whetherthe appropriate technology can reducethe pollutants in question to that level,and whether the analytical uncertaintyand variability that may exist are sosignificant that the imposition andenforcement of specific limitations atthat level may be unreasonable.

For those pollutants listed in Table IVof Appendix D (certain conventionaland nonconventional pollutants)(§ 122.53(d)(7)(iii)(B)), EPA proposes thatapplicants submit quantitative data onlyfor those pollutants which are eitherdirectly, or indirectly through means ofan indicator, limited in an effluentlimitations guideline applicable to thepoint source category. A-differentthreshold level has been established forthis group of pollutants because anumeric threshold level is inappropriatefor many of these pollutants (e.g., color,

fecal coliform, radioactivity). Here theeffluent limitations guidelines willindicate to permit writers whichpollutants are of concern. As with thetoxic pollutants, applicants would stillbe required to indicate any pollutant inthis section believed to be discharged ona routine basis and, at a minimum,explain why the pollutant is expected tobe discharged.

Section 122.53(d)(7)(i](B) authorizesthe Director, upon the request of thepermittee, to waive the reportingrequirements for pollutants listed inparagraph (d)(7)(i)(A) of § 122.53. EPAproposes to revise the language of thissection to clarify that in order to obtainsuch a waiver, the applicant mustdemonstrate that reduced reportingrequirements will provide sufficientinformation to write adequate permits.Waivers from the requirement to test forpollutants listed in Item V-A may berequested from the Director forindividual facilities. In addition, EPAwill consider requests for eliminatingthis testing for a particular industrycatgory or subcategory. Any suchrequest, with a justification for therequest, should be submitted to theDirector of the Office of WaterEnforcement and Permits. For primaryindustry categories or subcategoriesEPA will continue to reevaluate themandatory requirement of§ 122.53(d)(7)(ii) to test for organicpollutants in the GC/MS fractions listedunder Item V-C of Form 2c (Table II,Appendix D to Part 122).

Future Discharges

EPA proposes to delete § 122.53(d)(9)and (10) (Item VI of consolidated permitapplication Form 2c). These sectionsrequire permittees to predictpotentialfuture use, manufacture, or discharge oftoxic pollutants. EPA initially believed itwas appropriate to require applicants topredict potential increases in thedischarge of toxic pollutants. Thisallowed permit writers to setappropriate limitations at thetime thepermit was issued and helped to ensurethe installation of necessary treatmentequipment before discharges began.EPA has reevaluated these requirementsin light of its desire to minimizeregulatory burdens on applicants.Though prediction of future dischargesmay be useful information, it is notessential to writing adequate permitlimitations. Permittees still must notifythe Director when they become aware ofincreases in the discharge of toxicpollutants, see § 122.61(a). Based on thisinformation, permits may be modified toimpose adequate controls. Elsewhere intoday's Federal Register we areproposing to suspend these provisions

pending issuance of final rulemaking onthis proposal.

Sampling

In addition to reducing the testingrequired of applicants, EPA proposes toallow greater flexibility in the type ofsamples that must be collected. Thecurrent regulations, in §122.53(d)(7),rejuire that grab samples be taken forpH, temperature, cyanide, total phenols,residual chlorine, oil and grease, andfecal coliform. For all other pollutants,24-hour composite samples must betaken. EPA now proposes to allow grabsamples in certain circumstances wherea representative sample of the effluentbeing discharged is still assured. EPAalso proposes to authorize the Directorto waive composite sampling for anyoutfall for which an applicant candemonstrate that the use of anautomatic sampler is infeasible and thatthe minimum required four grab sampleswill still yield a representative sample ofthe discharged effluent.

Grab samples would be allowed foreffluents from holding ponds or otherimpoundments with a retention periodgreater than 24 hours. In this situation, aminimum of one grab sample willgenerally be sufficient to ensure arepresentative sample. The grabsamples would be allowed whether theholding ponds were located at the end ofa treatment system, or were themselvestreatment systems.

Finally, because of the infrequent andunpredictable nature of the discharge,we propose to allow grab samples, inplace of composite samples, for stormwater discharges. In this case, aminimum of one to four grab sampleswould be required depending on theduration of the discharge..

Used/Manufactured Pollutants

EPA proposes to delete therequirement of §122.62(e)(i)(ii) that theDirector control, through effluentlimitations imposed in a permit, all toxicpollutants used or manufactured by adischarger. The intent of the CleanWater Act is to control the discharge ofpollutants. Although facilities often maydischarge pollutants that are used inplant processes or that aremanufactured as products or by-products, discharge of all suchpollutants will not necessarily occur.EPA therefore believes that therequirement of §122.62(e](1)(ii) is toobroad. The requirement of§122.62(e)(1)(i) to impose effluentlimitations on all toxic pollutants whichare or may be discharged at levelsgreater than levels that can be achievedby applicable technology-based




treatment requiremerits should provideadequate control of toxic discharges.Elsewhere in today's Federal Registerwe are proposing to suspend thisprovision pending issuance of finalrulemaking on this proposal.

Notification of Toxics

Changes are also proposed to§122.61(a). Section 122.61(a) requires anexisting industrial permittee to notifythe Director when some activity hasoccurred or will occur causing it todischarge toxic pollutants that were notpreviously limited in the permit. EPA'sintent in imposing this requirement wasto receive notification of toxicdischarges that occur on a relativelyfrequent basis and which therefore maybe appropriately controlled throughpermit limitations. The proposed changewould make this clear. In general, whensuch a discharge of a toxic pollutantoccurs on a routine or frequent basis,the permittee must notify the Director ifthat discharge exceeds 5 times the levelreported in the permit application form,or 100 ppb, whichever is higher. Thechoice of 100 ppb as a threshold level fornotification purposes was explainedabove in connection with theapplication testing requirements.

Although EPA's primary concern iswith frequent or routine toxic -discharges, infrequent discharge mayalso be of concern and may indicate theneed for a closer examination of thefacility's operation and maintenance.Therefore, a permittee must also notifythe Director when any one occurrence ofa discharge exceeds 10 times thereported value or 500 ppb, whichever isgreater. This requirement is proposed asnew § 122.61(a)(2). The notificationrequirements of § 122.61(a) are notintended to impose on a permittee aburden of continuous monitoringthroughout the term of the permit.Rather, if the permittee discoversthrough any means available (e.g.,routine monitoring required by thepermittee, or a professional judgmentthat a reasonable potential for dischargeexists based on a knowledge of changesin the facility or process operations) thatit now expects toxic pollutants notlimited or reported in the permitapplication to be discharged, thepermittee must notify the Director. Indetermining whether a discharge isroutine or frequent within the levelspecified, the permittee should examinethe circumstances of the discharge andthe operations of its facility or activityto determine whether additional self-monitoring is necessary to make anaccurate determination of whether it isroutine or frequent.

We propose to delete existing§ 122.61(a)(2) because its purpose-todetermine the potential for discharge ofpollutants--is met by § 122.61(a)(1)andproposed new § 122.61(a)(2), andbecause the added requirement to reportall new toxics used or manufactured isunnecessarily burdensome. Finally, wepropose to delete § 122.15(a)(5)(ix) tocorrespond with the deletion of§ § 122.61(a)(2) and 122.62(e)(1)(ii).

D. Deferral of Hearing on New SourceDetermination (40 CFt 122.53(h)(4))

The existing rules (§ 122.53(h)) allowthe Regional Administrator to defer anyrequested evidentiary hearing on atentative new source determination untila final permit decision is made. EPAproposes to amend this rule to precludedeferral of the hearing unless all partiesagree. An early hearing will resolveissues relating to the performancestandards that the plant must bedesigned and constructed to meet andthe scope of EPA's obligations under theNational Environmental Policy Act(NEPA). To defer these issues to thepermit issuance stage (which may beyears after the new sourcedetermination), raises the possibilitythat, at that time, it may be inordinatelyexpensive to alter the facility to meetstandards, or that alternatives EPA mustconsider under NEPA may no longer beavailable. When these considerationsare not present, on the other hand, andthe parties do not object, it may be moreefficient to consolidate the hearing onthe permit with the hearing on the newsource determination. The proposed rulewould still allow this to be done.

E. Construction Prohibition(§ 122.66(c)(4), (c)(5))

In issuing permits to "new sources"(see § 122.3 for definition) in Stateswithout approved NPDES programs,EPA must comply with NEPA. NEPArequires, among other things, thepreparation of an environmental impactstatement (EIS) on any major federalaction significantly affecting theenvironment. Existing § 122.66(c) (4) and(5) prohibit the construction of a newsource, for which an environmentalimpact statement is required, beforeEPA completes its review ofenvironmental impacts under NEPA,unless the applicant signs an agreementto comply with appropriate NEPA-basedrequirements or the RegionalAdministrator makes a finding that suchconstruction will not cause significant orirreversible adverse environmentalimpact.

Many dischargers and applicantshave questioned EPA's legal authority toadopt and enforce a ban on

construction. The ban was originallyintended to ensure that EPA was notdeprived, at the time of issuing a permit,of the ability to consider all alternativesto the proposed action, includingalternative sites or not constructing thedischarging source at all. Thoseobjecting to the ban have argued thatthe Clean Water Act regulatesdischarges, not construction, and thatEPA is without authority to adopt aprohibition against construction in itsregulations.

EPA has carefully considered thesearguments and has decided to rescindthe ban. In contrast to other federalregulatory statutes (such as the AtomicEnergy Act, 42 U.S.C. 2011 et seq.), theClean Water Act does not regulateconstruction of facilities, onlydischarges from them. See Section 301.Accordingly, if an applicant beganconstruction in defiance of EPA's ban,the enforcement remedies under Section309 of the Clean Water Act would notapply. EPA proposes to delete thisprohibition entirely. (For a discussion ofEPA's authority to condition permitsbased on NEPA, see Section F of thispreamble, infra.) Elsewhere in today'sFederal Register we are proposing todelete the same provisions pendingissuance of final rulemaking on theproposal.

Although EPA proposes to lift theconstruction ban, applicants should bearin mind that the Agency will fullydischarge its NEPA obligations for anydischarge associated with a new source.Accordingly, the regulation would statethat if construction commences beforeEPA completes any required NEPAreview, EPA will not consider in thepermit issuance process.any costs whichthe applicant might incur in restoring thesite or in altering construction plans.Before beginning construction, theowner or operator of a facility that maybe a new source still must submitsufficient information to the RegionalAdministrator to enable him to make aninitial new source determination, see 40CFR 122.53(h)(2)(i). We stronglyrecommend that all applicants submitsuch information, as well as their permitapplications, sufficiently early to enableNEPA review to be completed prior tothe commencement of construction.Simple prudence dictates that a projectshould not be constructed in the face ofpotential unresolved issues relating tositing, design, and construction. Theseissues can and should be resolvedthrough early NEPA review.by theRegional Administrator.

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F. Incorporatiau of NEPA Conditions inNPDES Permits (40 CFR 122,12(g),122.62(d), 122.66 124.85J

We are proposing to revise§§ 122.12(g), 122.62(d)(9J, and122.66(c)(3) to make clear that theNational Environmental Policy Act(NEPA) cannot be used to revieweffluent limitations or otherrequirements established under theClean Water Act or to set such effluentlimitations. Section 511(c)(2) of theCWA expressly prohibits the use ofNEPA for such purposes. Sections122.12(g), 122.62(d)(9), and 122.06(c)(3)would make clear in accordance withthe Settlement Agreement in NRDC v.EPA that, in an other respects, theregulations take no position on thecircumstances under which NEPAconditions (other than effluentlimitations) may be imposed in NPDESpermits.. New § 124.85(e) would provide thatevidence on environmental impacts of afacility may be submitted at a hearingfor a new source subject to NEPA if theevidence would be relevant to. theAgency's obligations under§ 122.66(c)(3).. That section, in turn,requires EPA, to the extent allowed bylaw, to conduct an evaluation ofsignificant environmental impacts of theproposed action. Thus,, the scope of theevidence on environmental impactsadmissible at an NPDES hearing turnsultimately on the scope of the analysisrequired by NEPA.

In order to minimize delay andduplication of effort. § 124.85(e) alsowould provide that where a sourceholds a final RCRA, PSD, UIC, or oceandumping permit, no evidence may beadmitted or cross-examination allowedwith respect to issues that wereconsidered or could have beenconsidered in those permit proceedings,even as to matters that may have beenwithin the proper scope of a NEPAanalysis. In, such cases, the PresidingOfficer may (to the extent required byNEPA) instead admit relevant portionsof the record of the PSD, RCRA, UIC, orocean dumping permit proceedings. Thisevidence may be used to perform thebalancing of costs and benefits requiredby NEPA.

The proposal would also revise§ 124.121(f), to make § 124.85(dl(ZI and(e) applicable to panel hearings. Thepurpose of proposed I 124.85(e) is toprovide a limited resjudicata effect inNPDES permit proceedings todeterminations in related RCRA, PSD,UIC, or ocean dumping permitproceedings. EPA does not believe thatthe limited applicability of NEPA to newsource NPDES permit proceedings

provided in § 511(cj was intended byCongress to provide a vehicle forwholesale reexamination ofdeterminations made by EPA underother statutes to which NEPA plainlydoes not apply. For example, PSDdeterminations, like all EPAdeterminations under the Clean Air Act,are exempt from NEPA's EISrequirements by statute. (See section7(c)(1) of the Energy Supply andEnvironmental Coordination Act. 15U.S.C. 793(c](1)}. Other EPA actionshave been uniformly held by courts notto be subject to the EIS requirements.(See, e.g., Wyoming v. Hathaway, 525F.2d 66 (10th Cir. 1975).)

EPA's proposal also would minimizeduplication of effort and the waste oftime and resources that attendrelitigation of the same or similar issuesin two or more agency proceedings. Thisapproach would help carry outCongress' directive in Section 101(f) ofthe CWA that "the procedures utilizedfor implementing this Act shallencourage the drastic minimization ofpaperwork and interagency decisionprocedures, and the best use ofavailable manpower and funds, so as toprevent needless duplication andunnecessary delays at all levels ofgovernment."

G. Compliance Schedule Prohibition (40CFR 122.1O(aj(2Jj

Existing § 122.10(a)21 prohibitsschedules of compliance in the firstpermits-for new sources, newdischargers, and recommencingdischargers. These sources must have. in.operating condition and "start up" allnecessary control equipment before theybegin discharging, and they must complywith requirements within the shortestfeasible time, not to exceed 90 days.(See section 122.66(d)(4}.} However,water quality standards, effluent,limitations guidelines, and other CWArequirements may be issued or rev isedshortly before the source is to begindischarge. In these cases, a sourceshould be allowed a period of time tocome into compliance with the newlyissued or revised requirements. Theproposed amendment would allow aschedule of compliance if any suchrequirements are issued or revised lessthan three years before commencementor recommencement of discharge; butnew sources or new dischargers wouldqualify for a schedule only if the new orrevised requirement was issued afterconstruction began. Of course, theproposed regulation cannot authorizeEPA or a State to issue a permit with aschedule of compliance extendingbeyond a statutory deadline under the

CWA. Beth!--ham Steel Corp. v. Train,544 F.2d 657 (ard Cir. 1976).

H Proper Operation and Maintenance(40 CFR 122.7(e]

Section 122.7(e requires the permitteeto pftoperly operate and maintain allfacilities and systems of treatment andcontrol which are installed or used bythe permittee to achieve compliancewith permit conditions. The provisiondefines "proper operation andmaintenance" to include effectiveperformance, adequate funding,adequate operator staffing and training,and adequate laboratory controls,including appropriate quality assifranceprocedures.

EPA proposes to amend this section toeliminate most of these examples ofproper operation and maintenance. Thisdoes not imply that these examples arenot elements of proper operation andmaintenance. Rather, the proposedchange would provide facilities andsources with greater flexibility inestablishing internal plant managementprocedures to assure that properoperation and maintenance: is achieved.Adequate quality assrancesinlaboratory testing and analyses are ofparticular importance in maintaining theintegrity of the self-monitoringrequirements of the NPDES program.Therefore, the reference to adequatelaboratory controls: will be maintained.

EPA also proposes to amend the lastsentence of § 122.7(e) to clarify that thisprovision is not intended to require theinstallation of back-up equipment, butrather to require operation of back-upequipment which is installed by apermittee, where operation of suchequipment is necessary to achievecompliance with the conditions of thepermit.

L Notice of Physical Alterations orAdditions (40 CFR 122.71)(1))

Section § 122.7(1) requires permitteesto give notice as soon as possible of"any planned physical alterations oradditions to the permitted facility,"whether or not the, change will require apermit modification or will result in apermit violation. However, manyindustrial facilities frequently undergophysical alteration or addition. Oftensuch changes are minor and have littleor no impact on a permittee's , discharge.EPA has evaluated the requirement of§ 122.7(l) in light of these concerns andin light of its goal of minimizingreporting requirements on the regulatedcommunity. EPA believes that arequirement to report all physicalchanges to a facility, regardless, of theeffect on the permittee's discharge, is



Federal Register _ Vol. 47, No. 223 / Thursday, November 18, 1982 / Proposed Rules

unnecessarily burdensome. Instead wepropose that a permittee be required toreport only those changes or additionswhich could significantly change thenature or increase the quantity ofpollutants being discharged, and forwhich we would not otherwise receivenotice through compliance reporting forpollutants limited in the permit or toxicnotification under § 122.61. This shouldsignificantly decrease reportingrequirements on permittees, yet continueto provide the Agency with appropriateinformation to determine permitviolations or circumstances indicating aneed for permit modifications.

. Bypass (40 CFR122.60(g))

Section 122.60(g](2) provides that apermittee may allow any bypass whichdoes not cause effluent limitations to beexceeded, but only if the bypass is foressential maintenance to assure efficientfacility operations. In all other cases, abypass is prohibited and enforcementaction may be taken unless certainconditions are satisfied. Among these isthe condition that there be no feasiblealternatives to the bypass. This "nofeasible alternative" condition is notsatisfied if the permittee could haveinstalled adequate back-up equipment toprevent a bypass which occurred duringnormal periods of equipment downtimeor preventive maintenance.

EPA proposes to amend the bypassprovision to eliminate the restrictionwhich prohibitQ bypass except wherenecessary for essential maintenancepurposes. This would allow any bypasswhich does not cause a violation ofpermit effluent limitations or otherpermit conditions. EPA believes that aslong as a permittee complies with theeffluent limitations in its permit, specificmethods of treatment should not berequired.

Except for discharges of producedwater from offshore oil and gasexploration and production facilities, theamendment would require permittees tomonitor all affected discharge points atthe time of any bypass to assurecompliance with permit limitations. Theoil and gas industry has pointed out thedifficulty and expense of monitoring atthe site of offshore facilities. Cost is aparticular concern because samplesmust be transported onshore foranalysis. In order to minimize theburden of monitoring for offshorefacilities, EPA-proposes to authorize theDirector to waive these additionalmonitoring requirements for offshore oiland gas exploration and productionfacilities where the permittee candemonstrate that effluent limitationswill not be exceeded during bypasperiods.

EPA also proposes to revise thesecond sentence of § 122.60(g)(4)(i)(B) tomake it clear that permittees need notinstall back-up equipment in all casesmerely because such equ ipment couldprevent the need for bypass. Therestriction will apply only if back-upequipment should have been installed inthe exercise of reasonable engineeringjudgment to prevent bypass duringnormal periods of equipment downtimeor for preventive maintenance.

K. Upsets for Water Quality Standards-based Limits (40 CFR 122.60(h))

Existing § 122.60(h) provides anaffirmative defense in an enforcementaction if the discharger shows thatnoncompliance with technology-basedeffluent limitations resulted from factorsbeyond the reasonable control of thedischarger. The courts have ruled thatEPA must allow for "upsets" in applyingtechnology-based effluent limitationsbecause the technology that underliesthose limitations is inherently subject to'failure for reasons beyond the control ofthe operato'. See Marathon Oil v. EPA,564 F.d 1253 (9th Cir. 1977). Although thesame rationale does not apply toeffluent limitations based on waterquality standards, EPA sees no reasonto penalize a discharger that can provethat an upset occurred and that waterquality standards were met despite itsnon-complying discharge. By deletingthe words "technology-based" from§ 122.60(h)(1); EPA would extend theupset defense provided by § 122.60(h) toencompass violations of permitconditions based on water qualitystandards. However, § 122.60(h)(4) limitsthis defense to circumstances in whichthe discharger can show that theviolation of such permit conditions wasnot accompanied by a violation of thewater quality standards.

The proposed rules also clarify theshowing necessary to prove that anupset occurred. The existing rulesrequire a discharger to prove that anupset occurred and that "the permitteecan identify the specific cause(s) of theupset * * * ." In some cases, overlyliteral application of this requirementwould require a discharger to produce alevel of proof that it is not scientificallypossible to obtain. The deletion of theword "specific" from § 122.60(h](3)(i)simply clarifies that the regulation doesnot require investigation to animpossible degree of certainty. Theremay be cases where biological activityis disrupted in a treatment system, forexample, where no change in raw wastecharacteristics could be identified, andwhere a thorough investigation by thepermitee could not identify the precisecause of the change resulting in the

violation. Such evidence could beadduced to show the "cause" requiredby the.regulation, even though theprecise cause eluded detection.

Several persons have inquiredwhether a demonstration of "cause" ofan upset required under § 122.60(h) canbe based upon circumstantial evidencerather than direct evidence. It is EPA'sintent that an demonstration of causeacceptable as proof of fact in court beavailable to a permittee seeking toutilize the upset defense. Proof of factmay be made through circumstantial aswell as direct evidence. Indeed,circumstantial evidence may be all thatis available. However, it is not enoughsimply to show that normal operatingprocedures were followed at the timeeffluent limitations were exceeded. Theregulation requires at least a thoroughinvestigation of the causes of anincident. Obviously, a claim of upsetwill be disfavored where previousviolations have occurred and no effortsor insufficient efforts were made toidentify and remedy the cause or causes.L. Toxicity-based Limits (40 CFR125.3(c)(4))

We are proposing to delete§ 125.3(c)(4) which provided thateffluent limitations based on a perpnitwriter's best professional judgmentcould be expressed in terms of toxicityprovided it was shown that the toxicitylimits reflected the appropriate limits(e.g., technology or water quality-basedlimits) authorized by the Clean WaterAct. EPA is in the process of studyingtoxicity testing and the proper role forsuch testing in the NPDES permitprogram. Draft toxicity testing manualshave been prepared, and commentselicited from various members of thepublic. Questions have been raised byindustry as to the appropriateness ofsetting toxicity-based limits, as to theextent to which effluent toxicity-basedlimits can be correlated with waterquality standards or technology-basedlimits, and as the need to developapproved measurement protocol foreffluent toxicity. Until EPA hascompleted its review of the manuals andcomments, and has adopted a positionon whether and how toxicity testingshould be used in the permitting process,EPA does not recommend that permitwriters set toxicity-based limits inpermits.

The permit writer may continue theuse of bioassays and biosurveys (orother toxicity tests) to determine thepotential toxicity of the effluentdischarge on resident aquatic organismsin the receiving water body for thepurpose of developing water quality-

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based permit limitations under approvedor revised' State water quality standards.EPA is stressing the need to develop anadequate field data base (includingphysical, chemical and biological data)upon which determinations can be madeby the regulatory authority as towhether permit limitations morestringent than those specified inpromulgated effluent guidelines areneeded to protect designated uses underState water quality standards. EPA haspublished a permitting policy, "Policyfor the Second Round Issuance ofNational Pollutant DischargeElimination System (NPDES) Permitsfor Industrial Sources, June 2, 198," thatwill guide EPA, where it is thepermitting authority, in setting prioritiesfor dischargers according to their knownor suspected impairment of designateduses in the receiving waters and in theuse of toxicity testing to determinewater quality-based permit limits, wherejustified.

In carrying out toxicity testing, EPAwill coordinate with State agenciesresponsible for water quality standards,planning and monitoring to assuremaximum utilization-of available dataand resources in the design andimplementation of field studies that mayinclude toxicity testing. The permittingagency may require bioassays or othertypes of toxicity testing in the permit tocomplement its own evaluation. Waterquality-based permits will be written byEPA in full coordination with the Stateagency responsible for water qualitystandards and in accordance with theContinuing Planning Process (Section303(e) of CWA) and will meet the spiritand intent of Section 303 of the CWA.

EPA, where appropriate, will alsocontinue to test the toxicity of effluentsto evaluate the effectiveness of existingtechnology and water quality-basedlimitations.

M Best Professional Judgment (BPI) (40CFR 125.3)

In the absence of applicable effluentlimitations guidelines, or if thoseguidelines do not control pollutants ofconcern at a particular facility, EPA andState Directors may establish effluentlimitations on a case-by-case basis,based upon the permit writer's "bestprofessional judgment" (BPI) as to whatlimitations the permittee would achieveafter applying the technologiesrepresenting the "best practicablecontrol technology currently available"(BPT), the "best available technologyeconomically achievable"' (BAT), or the"best conventional pollutant controltechnology" (BCT). Such case-by-casepermits have come to be known as "BPJpermits."

This proposal details, for the firsttime, the statutory factors that must beconsidered and explained in the factsheet for a BPJ permit, Section125.3(c)(2) already requires the permitwriters to consider "statutory factors" inissuing BPJ permits, so these changessimply clarify an existing requirement.EPA permit writers also should befamiliar with the series of legal opinionsissued in connection with evidentiaryhearings under the pre-1979 NPDESrules See NILS Publishing Company,EPA General Counsel Opinions,"NPDES Permits."

We are proposing to revise§ 125.3(c)(2) and (c)(3) to require apermit writer in setting case-by-casepermit limitations under section402(a)(1) of the Act, to make explicit inthe fact sheet his consideration andanalysis of the relevant statutory factors(now enumerated in § 125.3(d)), and anyother factors and documents considered.This requirement will facilitate informedcomment by permit applicants as wellas subsequent review, if necessary.

We are proposing to delete theparenthetical clause in § 125.3(c)(2)(i) tomake clear that in establishing case-by-case permit limitations under section402(a)(1) of the Act, permit writers arenot bound by EPA draft or proposeddevelopment documents or guidance.We continue to believe, however, thatpermit writers must consider allpertinent information, including thesedocuments, in developing case-by-caselimits, just as they must considersignificant comments and criticisms ofthe data they contain.

N. Net/Gross Limits (40 CFR 122.63(g),(h))

Section 122.63(g) and (h) spell out thecircumstances under which adischarger's technology-based effluentlimitations are adjusted to account forthe effect of pollutants in the intakewater. This proposal clarifiesambiguities in the existing regulationand eases some restrictions on theavailability of net credit. However, theproposal is limited to technology-basedlimitations and does not apply to waterquality-based limitations.

The new proposed rule wouldestablish a clear test for the avilabilityof net credit in cases where theapplicable effluent limitations guidelinesdo not specifically provide that they areto be applied on a net basis. Under theproposed test, net credit is allowed if thedischarger operates a control systemthat would meet the effluent limitationsin the absence of intake waterpollutants, but fails to do so because ofthe effects of intake water pollutants.The basic principle is that such a control

system must be applied to thedischarger's effluent, but that credit isavailable as necessary to meetapplicable limitations after the controlsystem is applied.

In determining eligibility for net creditfor nonprocess. effluent streams (e.g.,noncontact cooling water) which werenot considered in the development ofapplicable effluent limitationsguidelines, the "control system" referredto in proposed § 122.63(h)(1)(ii) meansany control measure actually applied tothe nonprocess stream in order to meetthe applicable technology-basedlimitations and standards. If theguideline does not require that thenonprocess stream be treated by thesame type or level of treatment used forprocess effluent discharges, thepermittee need only demonstrate thatthe control measures actually appliedwould, if properly installed andoperated, meet the applicable limits andstandards in the absence of intakepollutants.

One question that arises under thisapproach is whether the discharger isrequired to operate its control system insuch a manner as to achieve incidentalremoval of intake water pollutants, evenif to do so would require the dischargerto incur more costs than would berequired in the absence of intake waterpollutants. The modified net/grossprovision provides as a general rule thata discharger will get credit for pollutantsin its intake water only to the extentnecessary to enable the discharger tocomply with its effluent limitations. If,however, the discharger would incursignificant additional costs above thosecontemplated in the effluent limitationsguidelines, in achieving the incidentalremoval of intake pollutants (e.g., byincurring additional operating, costs) thedischarger will qualify for a highercredit to account for intake pollutants.

In calculating best professionaljudgement (BPJ) effluent limitations, thepermit writer must determine whatlimits can be achieved by installation ofthe required technology, for example,best available technology economicallyachievable. In calculating BP limits, thepermit writer should determine what theselected technology would achieveabsent pollutants in' the intake water,and adjust those limitations if necessaryto account for the effects of'intake waterpollutants on the performance of theselected technology. Higher credits willbe allowed where the discharger canshow that it would incur significantadditional costs above what wouldotherwise be required to meet BPJ limits,in the absence of intake pollutants, to



Fo~dIAr~l Register I Vol. 47. No. 223 / Thursday, November .18, 1982 / Proposed Rules 528

achieve the incidental removal ofpollutants in its intake water.

Similarly, if a permittee is addingchemicals to remove pollutants, then"proper" operation of the control systemidentified pursuant to 122.63(h)(1)(ii)could arguably require the permittee toincur a significant additional expense totreat as much of the pollutants presentin the effluent as the installedtechnology is capable of removing. Inthese cases, the permittee need onlyoperate the -control systems in such amanner as to meet the applicablelimitations and standards in the absenceof pollutants in the intake water. Thus,for example, when the permittee isadding chemicals to remove chlorineadded by the permittee's processes, itwould only be required to add thatamount of chemicals necessary to treatthe chlorine added by the facility if itwould require a significant additionalexpense to add more chemicals to alsocontrol those pollutants present in theintake water.

Where a company is adding aparticular pollutant only during certainperiods of the day it would not berequired to treat its effluentcontinuously for that pollutant, butrather to properly operate its treatmentsystem as necessary to remove thepollutant added by process operations.During such periods the discharger-isrequired to treat for the total quantity ofpollutants present in the effluent whichthe installed technology is capable ofremoving unless to do so would result ina significant additional expense asdiscussed above.

EPA also proposes to delete therequirement, inexisting § 122.63(h)(1),that net credit be allowed only if thedischarge is into the same body of waterfrom which the intake is drawn. Manydischargers use intake water from publicwater supplies, lakes, or streams otherthan those into which wastes aredischarged. The rationale of EPA'sproposed rule hinges upon the inabilityof the-odischarger to meet effluentlimitations with appropriate treatmentbecause of the presence of pollutants inintake water. Of course, this provisionwould not allow the violation of waterquality standards through use ofpolluted intake water from a saline wellor other source. But these problemswould be controlled through limitationsbased on water quality standards, notthrough the technology-based standards.

The existing rule prohibits net creditfor the discharge of pollutants to theextent that intake water pollutants varyphysically, chemically, or biologicallyfrom the pollutants limited in the permit.The purpose of this restriction wasexplained, in the' preamble to the June 7,

1979 NPDES regulations (44 FR 32866).EPA sought to prevent the discharge ofwastes that were more toxic than intakewater pollutants, but thatwerecontrolled by a limitation that did notmeasure this difference in toxicity, suchas a TSS limit. This same purpose 'isachieved more flexibly by proposed§ 122.63(h)(3). Under this provision, netcredit would be allowed for pollutantsthat are "indicators" for toxic pollutantsif the discharger agrees to anappropriate effluent limitation on thetoxics, or shows that the effluent issimilarin chemical characteristics or notsubstantially greater in toxicity thanintake water pollutants.

EPA anticipates the -use of three basictechniques to demonstrate similarity ininfluent and effluent chemicalcharacteristics or toxicity. One is toanalyze influent and effluent for prioritypollutants and to demonstrate that thelevels of priority pollutants in theeffluent are not substantially higher thanin the influent. A second method is to.show that the operation is inherentlyincapable of producing toxic pollutants.For example, a gravel washing operationwould produce water which couldreasonably be expected not to be higherin toxicity than incoming river water. Athird method would be to performtoxicity testing (such as bioassays) oninfluent and effluent, to demonstratethat toxicity levels are not substantiallyhigher in the effluent.

Proposed § 122.63(h)(4) clarifies theavailability of "net" credit for raw waterclarifier sludge. This is sludge thatresults from treatment of intake 'water tomake the water useable for processpurposes. Under existing § 122.63(2)(1), itis not clear that net credit is availablefor these sludges, because the rulesthere provide that effluent limitations"shall be calculated on the basis of theamount of pollutants present after anytreatment steps have been performed onthe intake water by or for thedischarger." But this provision is nolonger necessary under the -new testdescribed above, because pollutantsremoved by intake water treatmentsystems will have no effect upon theeffluent treatment systems proposed orused to meet applicable technology-based limitations and standards. Tomake it clear that the sludges may bedischarged, § 122.63(h)(4) allows thedischarges of raw water clarifier sludgeprovided'water.quality standards arenot violated (for example, by massivesludge discharges resulting in highconcentrations of pollutants). Of course,the credit does not extend to watertreatment chemicals that may be presentin the sludge, and these should beconsidered by permit writers to

determine whether case-by-case limitsare necessary.

The net/gross provision does notmandate how a net credit must bedetermined and applied. EPA continuesto recognize the discretion of individualpermit writers to adjust permit limits toallow dither a fixed net limit or a limitthat varies with intake pollutantconcentration. Permit writers shouldapply net limits in-such a manner as toallow for straightforwarddeterminations of compliance.

Demonstrations ofeligibility for a netlimit made in the past under priorregulatory provisions may be acceptedin determining eligibility in future permitissuance where such demonstrationsmeet the requirements of this provision,and where no changes have occurredwhich would require the adoption ofnew permit terms or limitations.

In circumstances where a permitteecanhot demonstrate the substantialsimilarity for.generic pollutants orotherwise fails to qualify for a net credit,it may, as an alternative, apply for aFundamentally Different FactorsVariance. It should be noted, however,that anFDF demonstration involves ashowing that the removal cost is whollydisproportionate to removal costsconsidered in developing national limitsor that a non-water qualityenvironmental impact fundamentallymore adverse than the impactconsidered during the development ofthe national limit would result. -

0. Total Metals (40 CFR 122.63(c))

Under existing § 122.63(c), alllimitations on discharges of metals inguidelines-based permits must beexpressed in terms of "the total metal(that is, the sum of the dissolved andsuspended fractions of the metal)"unless the guideline specifies anothertechnique. Case-by-case permits mustalso be expressed in terms of totalmetals unless a limitation on thedissolved or valent form is necessary tocarry out the provisions of the CWA.EPA now proposes to amend thisregulation to substitute a more flexiblerequirement.

There are three basic methods forsampling metals in effluents. In"dissolved metals," effluents arecarefully filtered before analysis toexclude essentially all solid matter;therefore, only metals that are alreadydissolved are measured. In "totalmetals," effluents are treated with hotconcentrated acids to dissolveessentially all solid matter; therefore,metals are measured in both dissolvedand solid form. "Total recoverablemetals" represents an intermediate

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method by which effluents are treatedwith a mild acid to dissolve readilysoluble solids, and then filtered toremove relatively insoluble solids from,the measurement.

While the chemistry of natural watersystems is exceedingly complex,environmental fate studies (see, forexamle, "Water Related EnvironmentalFate of 129 Priority Pollutants," (EPA-440/4-79-029a) indicate that metals insolid form frequently dissolve inreceiving waters and that ambientconditions are more important thaneffluent conditions in determining theultimate fate of metals. In addition,metals are frequently removed from raweffluents by precipitating the metalhydroxides. These precipitates, while insold form, are easily soluble given smallchanges in pH. On the other hand,industry has argued that the "totalmetals" mehtod inappropriatelymeasures metals that would dissolveilowly, if at all, under instreamconditions. The present regulationproposes the use, generally, of "totalrecoverable metals." EPA believes thatthe short-term acid treatment is areasonable way of approximating themetals that will rapidly dissolve inreceiving waters. This change will resultin reduced analytical costs, since "totalrecoverable metals" measurements arecheaper than "total metals." The "totalmetals" or "dissolved metals"techniques would still be employedwhere required by applicable effluentlimitations guideline. In this respect, it isimportant to note that data required tobe measured or which has beenmeasured by the "total recoverablemetals" technique can not be used inplace of data required to be measured orwhcih has been measured using the"total metals" technique.

P. Actual Production (40 CFR122.83(b)(2))

Section 122.63(b)(2) requires thatproduction-based permit effluentlimitations be based on some"reasonable measure of actualproduction of the facility, such as theproduction during the high month of theprevious year, or the monthly averagefor the highest of the previous 5 years."Some industry representatives havequestioned whether § 122.63(b)(2) limits"actual production" to one of these twomeasures discussed in the regulation.The operative requirement of thisprovision is that the permit be based ona reasonable measure of actualproduction. The examples given aresimply examples, and merely illustratetypical acceptable measures. Othermeasures of actual production areentirely acceptable if the Director finds

them "reasonable." For example, in acyclical industry that experiencessustained periods of low production andhas sharply fluctuating production levelsin any one year, the monthly average forthe highest month of the previous tenyears may be an acceptable measure ofexpected actual production.

We are proposing a new§ 122.63(b)(2)(ii) to address a problemunique to the automotive manufacturingindustry. This industry produces aconsumer product for which the designchanges yearly, the demand is extremelyvolatile, and the production quotas mayneed to be adjusted to meet consumerdemand with as little as a week's notice.Industry representatives have claimedthat a number of plants have been atdepressed production levels, far belowdesign capacity, for a number of years.Thus, the auto industry presents a casein which historic production may fall farshort of capacity and in which theDirector may not be able to modify thepermit to increase effluent limitationswith sufficient speed to allowproduction to meet consumer demand.

If an automotive manufacturingapplicant shows that actual productionhas been substantially below capacitybut has a reasonable potential for anincrease during the permit term, theproposal requires that EPA permitwriters establish higher, alternate limitsin the permit. The higher limits applyonly when, the permittee's productionincreases. To qualify for the higherlimits, the permittee must provideadvance notice at least two businessdays before each month in whichincreased production is expected. Theactual, not the anticipated, level ofproduction for that month will determinethe applicable effluent limitations. Thepermittee must report both the level ofproduction and the applicable limits onits Discharge Monitoring Report. Forexample, consider a hypotheticalautomotive plant with historicproduction of only 60% of capacity and,based on that production level, permitlimits on pollutant "X" of 2 pounds perday. Its alternative limits might be 2.5pounds per day for production in therange of 61-80% of capacity and 3pounds per day for 81-100%. On June 20,the plant notifies the Director that itexpects to qualify for the alternate limitsfor the period July 1-15 (the plant neednot specify the level of production itanticipates). If its actual production forthat period is in the 61-80% range, itwould be subject to the 2.5 pound dailylimit during that period.

Because we are unsure howfrequently this rather complex system ofalternate limits will actually be

necessary, we have authorized, but notrequired, its use by approved NPDESStates. The proposal is limited to theautomobile manufacturing industrybecause only that industry has providedinformation justifying the need forpermit limits to be adjusted in anextremely short time. If other industrieshave circumstances that require short-time permit limit adjustment, we invitecommenters to provide information(such as data on production variability)that would justify more extensivecoverage under this regulation.

Q. Disposal of Pollutants into Wells,POTWs, or Land Application (40 CFR122.65)

These proposed regulations makeseveral important changes to theprovisions of the rules (§ 122.65)governing dischargers that do notdispose of all their wastes to waters ofthe United States. The existingregulations set forth a formula for -adjusting technology-based effluentlimitations in such cases to reduce theamount discharged so as to ensure theapplication of the same level oftreatment to the remaining wastes aswould have been applied to the totalwaste stream.

EPA now proposes to amend this ruleto recognize that land application andwell disposal are forms of treatmentwhich prevent wastes from reachingwaters of the United States.Accordingly, no adjustment totechnology-based effluent limitations isnecessary for wastes that are disposedby these methods. However, pollutantsdischarged into publicly ownedtreatment works (POTWs) will bedischarged into waters of the UnitedStates after treatment. Accordingly, toensure.that use of this means of disposaldoes not result in more discharge ofpollutants than would be the case if thedischarger applied technology-basedrequirements to all its wastes, EPA hasretained the adjustment formula tocover industries which discharge aportion of their wastes into POTWs.

We are proposing a new provision toallow the Director to adjust the effluentlimitations yielded by the formula ifthose limitations would 'equire a greaterdegree of effluent reduction (taking intoaccount both reduction of thepOTWand reduction at the permittee's facility)than would have been required if theindustry had treated and discharged allits wastes directly to the receivingwaters. The proposal is limited totechnology-based limitations and wouldnot allow adjustment to water qualitybased limitations.

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Another proposed provision dealswith the situation in which effluentlimitations guidelines controlconventional or nonconventionalpollutants that-are indicators for toxicpollutants. In these cases, disposal towells or land disposal may enable thedischarger to avoid the technology ortechnologies that the guidelinesassumed would be applied. If this wouldresult in the discharge of more toxicpollutants to waters of the United Statesthan would have been the case had theentire -waste stream been treated anddischarged, proposed § 122.65(b)authorizes the Director to adjust thelimitations as necessary .to assureadequate control of toxic pollutants.

The revisions to § 122-55 applyspecifically to the calculation of effluentlimitations using applicable effluentlimitation guidelines. Permit writersshould also consider well and POTWdisposal and land application incalculating BPJ limits. In particular, EPArecognizes -that well and POTW disposaland land application are treatmentmethods that may be used to meeteffluent limitations. Therefore, the costsassociated with these treatments shouldbe considered part of the overalltreatment casts evaluated indetermining the control measures -whichconstitute BAT or BCT for the facility asa whole, and which underlie effluentlimits to be applied to the portion of thewaste stream which is to be dischargedto waters .of the United States.

R. Permit Conditions Stayed by StateCourt or Agency (40 CFR 122.M2(d)(3))

Under section 401 of the CWA, before*issuing an NPDES permit EPA mustobtain a certification from the State inwhich the discharge originates that thedischarge will comply with State legalrequirements, including water qualitystandards. EPA may issue a permitwithout certification, however, if theState waives certification, or fails to actwithin a "reasonable period of time(which shall not exceed one year)" afterreceipt of the request.

Generally, this system has workedwell. Occasionally, however, the permitprocess can become bogged down if acertification is embroiled in Stateadministrative or judicial reviewproceedings. The purpose of thisproposal is to provide a mechanism forbreaking the log jam and allowing apermit to be issued, but only after firstallowing the State an opportunity tocomplete review proceedings. ff acertification is stayed by a State court oradministrative authority, EPA will notifythe State that certification will bedeemed waived if EPA does not receivea final certification within sixty days

(the time allowed under § 124.53(c)(3)for State certification of draft permits).Thereafter, if EPA does not receive .acertification, EPA will he free to proceedwith permit issuance proceedings,including any necessary hearings, and toapply State standards under section301(b)(1)(C) of the Act.

This proposal would not amend§.124.55(b). Under that provision, if theState completes review of a -certificationafter~a waiver has occurred under thisproposal, EPA will neverthelessincorporate the conditions requiredunder the certification if it is receivedprior to final Agency action on thepermit.

SNon-Adversary Panel HearingProcedures (40 CFR Part 124, Subpart F)

In the June 7, 1979, revisions to theNPDES regulations, EPA first adoptednon-adversary panel procedures (NAPP}for hearings on initial licenses. As thepreamble to those regulations explained(44 FR 32887-32892), these newprocedures took advantage of the lesqrestrictive requirements of theAdministrative Procedure Act (APA)governing initial licensing. Theregulations contain a number ofinnovative features. For .example, permit.hearings are conducted by a panel ofagency experts sitting with anadministrative law judge, not by the lawjudge alone. The procedures also allowthe public comment'period and theformal hearing to be collapsed into asingle proceeding. Separation-of-functions requirements are lessrestrictive than those for evidentiaryhearings. Although no NAPP hearingshave yet been held, some industryrepresentatives have challenged some ofthe procedures.

EPA continues to believe that theseprocedures will provide a sensible,expeditious framework for hearingsraising technical and scientific issues.To some extent, however, -theprocedures are necessarily in adevelopmental phase. little will belearned about their sefulness if theyare thrust upon unwilling anduncooperative permit applicants.Accordingly, we are proposing at thistime to amend he xrles to provide thatthe panel hearing procedures will not beused unless the applicant consents.

EPA also proposes to extend to NAPPhearings the provisions of § 124.85(b)(16)pertaining to the scope of cross-examination. The proposed regulationswould provide in § 124.121(b) (asrequired in existing § 124.85(b)(16)) thatno cross-examination shall be allowedon questions of policy except to theextent required to disclose the factualbasis for permit requirements. This does

not preclude ross-examination on factswhich form .the bhsis for EPA policy, ifsuch cross-examination relates to thefactual basisfor permit requirements.Thus, for:example, if it-were EPA policyto require aspecified frequency ofmonitoring for dischargers of certainpollutants, and if a permittee challengedsuch a proposed monitoring requirementin a permit subject to a hearing, thepermit applicant would be allowed tocross-examine a witness on the factualbasis for the required monitoringfrequency or why the policy was appliedto the applicant's situation.The witness(or EPA counsel) would not be able toterminate the examination simply byanswering that the required frequencywas EPA "policy."

EPA also proposes to prohibit personswho helped lormulate the draft fromserving as members of the panel in aNAAP proceeding. Such persons will bedesignated as members of EPA trialstaff, and excluded from membership onthe decisional body as explained below.

T. Revisions to Evidentiary HearingProcedures (40 £FR Part 124, Subpart E)

EPA proposes to amend theprocedures governing evidentiaryhearings in two ways. First, the Agencyproposes to disallow ex partecommunications between EPAwitnesses, or persons who helped EPAformulate the draft permit, and members.of the decisional body by designatingsuch witnesses and persons as membersof the EPA trial staff. For the reasonsoutlined in the preamble to the finalConsolidated Permit Regulations, EPAdoes not believe Ihis step-is required bylaw. See 45 FR 33415 (May 19, 1980).However, it is being taken to avoid anyappearance of unfairness.

The second change -significantly altersthe requirements of !§ § 124.13 and 124.76that all evidence supporting a party'sposition be submitted by the close of theinformal comment period on the permit.Under the revised provision, partieswould still be required to raise allreasonably ascertainable issues and allresonably available arguments duringthe informal comment period on thepermit but would not be required tosubmit all supporting information. Thisadditional requirement of the existingrules that all factual grounds andsupporting material be submitted duringthe public comment period could beinvoked in either of two cases. First, theRegional Administrator coild reopen theinitial comment period and require allsupporting evidence to be submitted atthat time only if he believed it wouldexpedite decision-making (proposed§ 124.14(a)(1)). Second, section

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124.14(a)(3) would authorize theRegional Administrator to require thesubmission of all evidence during theinitial comment period where itreasonably appears that issuance of thepermit will be contested and collapsingthe comment periods may substantiallyexpedite the decision-making process.

Collapsing the comment periods inthis manner may impose greater burdenson permit applicants and participants inthe permitting process. Accordingly, theRegional Administrators should exercisethis discretion with care. Also, RegionalAdministrators' are encouraged toconsult with permit applicants and otherknown interested persons beforeexercising their discretion to collapsethe comment periods. Such consultationwill tend to ensure that the decision isan informed one. EPA anticipates thatRegional Administrators will applythese procedures during the initialcomment period primarily for majorpermits, such as for new factories ornuclear power plants, which are likelyto be contested and which will involvecomplex technical issues.

A new § 124.14(a)(4) recognizes thatapplying the procedures of § 124.14(a)(1)to a permit may require a lengthier thannormal comment period.

U. Mistake and Failure of Technology toMeet BPI Limits as Grounds for PermitModification (40 CFR 122.15(a)(5))

We are proposing a new§ 122.15(a)(5)(xii) to provide for permitmodifications to correct technicalmistakes or mistaken interpretations oflaw. Whether the mistake results inoverly lenient or overly stringent permitconditions, it makes sense to authorizepermit modifications to correct themistake. An example might be aarithmetical mistake made in calculatinga water quality-based limit; however, aclaim that the model used to calculatethe limit was itself invalid would notconstitute a "technical mistake."Similarly, the Director would beauthorized to modify a permit that wasbased on a mistaken determination thata new facility built after proposal ofapplicable new source performancestandards was a "new source" under§ 122.3 even though final standards werenever promulgated in accordance with§ 306 of CWA.

We also are proposing a new§\122.15(a)(5)(xiii) to authorize permitmodifications in situations in which afacility with a BPJ permit has installedand properly operated and maintainedthe treatment technology considered bythe Director in developing effluentlimitations, but nevertheless has beenunable to meet its permit limits.Although such situations seldom should

arise, when they do it is unfair to force adischarger who can make the requiredshowing to remain in violation of itspermit until a modified renewal permitcan be issued under existing§ 122.62(1)(2)(i).

This cause for modification would belimited to BPJ permits because adischarger's failure to meet guideline-based permit limits is moreappropriately remedied through othermeans and is generally the result of oneof three circumstances. The first is thatthe discharger has improperly designed,installed, operated or maintained thetreatment system, in which case norelief should be granted. The second isthat the discharger's facility isfundamentally different from thefacilities considered in developing theguideline, in which case the dischargermay be eligible for a "fundamentallydifferent factors" variance under Part125, Subpart D. The third is that theguideline itself is faulty, in which casethe discharger should petition EPA toamend the guideline. Because EPA itselfhas promulgated the guideline on thebasis of an extensive rulemaking recordit is more appropriate to request theAgency to judge a claim that theguideline is defective than it is to allowan individual permit writer to respond tothe request with a change to oneindividual permit.V. Anti-backsliding (40 CFR 122.62(1))

Section 122.62(l) reflects EPA's "anti-backsliding policy" which prohibits therenewal or reissuance of an NPDESpermit containing effluent limitationsless stringent than those imposed in theprevious permit, except in limitedcircumstances recognized under theexisting regulations at § 122.62(l). EPA istoday proposing to additionallyeliminate this anti-backsliding policy insituations where (1) The previous permitlimitations were imposed on a case-by-case basis under section 402(a](1) of theCWA in the absence of final effluentlimitations guidelines, and (2) finaleffluent limitations guidelines aresubsequently promulgated which areless stringent. In this case, upon therequest of the permittee, the RegionalAdministrator must revise the permitlimitations to reflect the limitationsestablished by the less stringent effluentlimitations guideline for thoseparameters directly covered by theguideline. He may also revise otherparameters limited in the permit whenthe permittee shows they are no longer"appropriate," for example, when theywill be adequately controlled throughlimitations on the parameters specifiedin the guideline. EPA also is proposingto-apply the new policy to existing

permits during their terms by adding anew cause for permit modification,§ 122.15(a)(5)(xi). NPDES States are freeto adopt this new policy, but may ofcourse impose more stringentlimitations.

EPA is abandoning its "anti-backsliding" requirement in thiscircumstance for several reasons. EPAbelieves that in the application ofnationally promulgated effluentimitations guidelines permittees shouldbe given equal treatment, so thatcompanies who have made good faithefforts to comply with previouslyimposed permit limitations will not bepenalized nor placed at a disadvantagewith respect to companies operatingunder subsequently issued, lessstringent limitations.

In addition, EPA is now involved in its"second round" of NPDES permittingunder the Clean Water Act (CWA). Alarge number of NPDES permits haveexpired and must be re-issued.. As with "the first round of issuance, it is expectedthat some of these permits will be issuedon a case-by-case basis under' theauthority of section 402(a)(1) because ofthe absence of nationally promulgatedeffluent limitations guidelines. If theanti-backsliding rule remains in effect itis likely that many permittees willchallenge any permit limitation issued inthe absence of guidelines. Thus, theproposed changes would help to avoidwidespread challenges to second roundpermits, a situation which could forcethe Agency to divert resources frompermit issuance proceedings toevidentiary hearings and further legalchallenges.

Industry also raised concerns withinterpretation of the "information"exception to the anti-backsliding policyin the context of water quality basedlimitations. For purposes ofimplementing the anti-backslidingprovision in § 122.62(1) for a reissuedpermit, where limitations in the expiringpermit were based on water qualitystandards, "information" under§ 122.15(a)[2) may include alternativegrounds (including necessarymethodology, mathematical parameters,and other assumptions) for translatingwater quality standards into waterquality based limitations.

W. Modification of NPDES Permits (40CFR 122.15, 122.17)

The changes in today's proposal donot affect or modify existing permits.Permittees must comply with the termsof their permits, even if those termsdiffer from the requirements in theregulations. See CWA, § 402(h).However, in order to prevent

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unnecessary administrative hearingsand litigation during rulemakingproceedings on these proposals, EPAhas agreed to propose a new§ 122.15(a)(5)(xiv] allowing NPDESpermits that became final after March 9,1982, to be modified to conform to anyfinal rule adopted under the SettlementAgreement for § § 122.60(g)(2)(ii)(bypass), 122.63(b) (actual production),122.63(c) (total metals), 122.65 (dischargeinto POTWs, wells, or by land disposal).A permittee would be required todemonstrate that it qualifies for themodification and that good cause existsto modify the permit. The good causerequirement calls for the permittee toshow something more than that itqualifies for the modification since sucha showing must be made in anymodification request. For example, thepermittee might show good cause bydemonstrating that the modificationwould result in cost savings, reduceenergy consumption, allow the use ofsimpler or more reliable controltechnologies, or otherwise significantlyalleviate the burdens imposed by itscurrent permit terms and conditions,including permit limits.

We are also proposing to add a new§ 122. 17(g) to allow modifications for thefollowing provisions to be processed asminor permit modifications: § § 122.7(e)(proper operation and maintenance),122.7(1) (planned facility change),122.60(g)(2)(i) (bypass), 122.60(g)(4)(i)(B)(bypass), 122.60(h) (upset), and 122.61(a)(toxic notification). Changes to a permitto reflect these new provisions couldthus occur through the more streamlinedminor modification procedure, whichdoes not entail public notice andcomment.

Changes proposed today relating toother provision would not allowmodification of the terms or conditionsof existing permits. The cut-off date isproposed so as to prevent unnecessarymodifications that could place anunreasonable strain on Agency or Stateresources.

III. Executive Order 12291

Under Executive Order 12291, EPAmust judge whether a regulation is majorand therefore subject to the requirementof a Regulatory Impact Analysis. Theseamendments clarify the meaning ofseveral generic permit requirements andgenerally make the regulations moreflexible and less burdensome foraffected permittees. They do not satisfyany of the criteria specified in section1(b) of the Executive Order and, as such,do not constitute major rulemakings.

This regulation was submitted to theOffice of Management and Budget forreview.IV. Paperwork ReductionAct

In accordance with the PaperworkReduction Act of 1980, 44 U.S.C. 3501 etseq., EPA must submit to the Director ofOMB for review and approval, new orrevised requirements for collection ofinformation. To a large extent theamendments proposed today decreaseof eliminate requirements for thecollection of information. Any final rulewill include an explanation of how theinformation provisions respond to OMBcomments.V. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5U.S.C. 601 et seq., EPA is required toprepare a Regulatory FlexibilityAnalysis to assess the impact of rules onsmall entities. No regulatory flexibilityanalysis is required, however where thehead of the agency certifies that the rulewill not have a significant economicimpact on a substantial riumber of smallentities. Today's proposed amendmentsto the regulations clarify the meaning ofseveral generic permit requirements andotherwise make the regulations moreflexible and less burdensome for allpermittees. Accordingly, I herebycertify, pursuant to 5 U.S.C. 605(b) thatthese proposed amendments, if issued infinal form will not have a significantimpact on a substantial number of smallentities.List of Subjects40 CFR Part 122

Administrative practice andprocedures, Air pollution control,Hazardous materials, Reporting andrecordkeeping requirements, Wastetreatment and disposal, Water'pollutioncontrol, Water supply, Confidentialbusiness information.40 CFR Part 124

Administrative practice andprocedure, Air pollution control,Hazardous materials, Waste treatmentand disposal, Water pollution control,Water supply, Indians-lands.

40 CFR Part 125

Water pollution control, Wastetreatment and disposal.[Clean Water Act, 33 U.S.C. 1251 et seq.)

Dated: November 8, 1982.Anne M. Gorsuch,Administrator.

PART 122-EPA ADMINISTEREDPERMIT PROGRAMS: THE NATIONALPOLLUTANT DISCHARGEELIMINATION SYSTEM; THEHAZARDOUS WASTE PERMITPROGRAM; AND THE UNDERGROUNDINJECTION CONTROL PROGRAM

Subpart A-Definitions and GeneralProgram Requirements

1. Section 122.4 is proposed to beamended by revising paragraph (d)(7) toread as follows:

§ 122.4 Application for a permit.* * **

(d)***(7) A topographic map (or other map if

a topographic map is unavailable)extending one mile beyond the propertyboundaries of the source, depicting thefacility and each of its intake anddischarge structures; each of itshazardous waste treatment, storage, ordisposal facilities; each well wherefluids from thefacility are injectedunderground; and those wells, springs,other surface water bodies, and drinkingwater wells listed in public records orotherwise known to the applicant in themap area. Group II storm waterdischarges, as defined in § 122.57(b)(3),are exempt from the requirements of thisparagraph (d)(7).

2. Section 122.6 is proposed to beamended by revising the introductorytext of paragraph (b) and revisingparagraph (b)(2) to read as follows:

§ 122.6 Signatories to permit applicationsand reports.* * * * *

(b) All reports required by permits,other information requested by theDirector, all permit applicationssubmitted for Class II wells under§ 122.38 for the UIC program, and allpermit applications submitted for GroupII storm water discharges under section122.57 for the NPDES program shall besigned by a person described inparagraph (a), or by a duly authorizedrepresentative of that person. A personis a duly authorized representative onlyif:

(2) The authorization specifies eitheran individual or a position havingresponsibility for the overall operationof the regulated facility or activity suchas the position of plant manager,operator of a well or a well field,superintendent, or position of equivalent

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responsibility; or, for NPDES only, anindividual or position having overall'responsibility for environmental mattersfor the company.

3. Section 122.7 is proposed to beamended by revising paragraph (e) andparagraph (1)(1) to read as follows:

§ 122.7 Conditions applicable to allpermits.* * * * *

(e) Proper operation and maintenance.The permittee shall at all times properlyoperate and maintain all facilities andsystems of treatment and control (andrelated appurtenances) which areinstalled or used by the permittee toachieve compliance with the conditionsof .this permit. Proper operation andmaintenance also include adequatelaboratory controls and appropriatequality assurance procedures. Thisprovision requires the operation of back-up or auxiliary facilities or similarsystems which are installed by apermittee only when the operation isnecessary to achieve compliance withthe conditions of the permit.* *x * * *

(1) Reporting requirements. (1)Planned changes. The permittee shallgive notice to the Director as soon aspossible of any planned physicalalterations or additions to the perrflittedfacility. For NPDES permittees, notice. isrequired only when the alteration oraddition could significantly change thenature or increase the quantity ofpollutants discharged which are subjectneither to effluent limitations in thepermit, nor to notification requirementsunder § 122.61(a)(1).*, * * * *

4. Section 122.10 is proposed to beamended by revising paragraph (a)(2) toread as follows:

§ 122.10 Schedules of compliance.(a) * * *(2) The first NPDES permit issued to a

new source or a new discharger shallcontain a schedule of compliance onlywhen necessary to.allow a reasonableopportunity to attain compliance withrequirements issued or revised aftercommencement of construction but lessthan three years before commencementof the relevant discharge. Forrecommencing dischargers, a scheduleof compliance shall be available onlywhen necessary to allow a reasonableopportunity to attain compliance withrequirements issued or revised less thanthree years before recommencement ofdischarge.

5. Section 122.12 is proposed to beamended by revising paragraph (g) asfollows:

§ 122.12 Considerations under Federallaw.

(g) For NPDES only, the NationalEnvironmental Policy Act, 42 U.S.C. 4321et seq., may require preparation of anEnvironmental Impact Statement andconsideration of EIS-related permitconditions (other than effluentlimitations) as provided in § 122.66(c).

6. Section 122.15 is proposed to beamended by removing paragraph(a)(5)(ix), redesignating paragraphs(a)(5)(x) and (a)(5)(xi) as (a)(5)(ix) and(a)(5)(x) respectively and adding newparagraphs (a)(5) (xi), (xii), (xiii), and(xiv] as follows:

§ 122.15 Modification or revocation andrelssuance of permits.

(a) * * *(5) * * *(xi) When the permittee's effluent

limitations were imposed under section402(a)(1) of the CWA and theselimitations are more stringent than anapplicable, subsequently promulgatedeffluent limitations guideline. Upon thepermittee's request, the State Directormay, and the Regional Administratorshall, modify the permit (A) byconforming the permit to thesubsequently promulgated guidelines forpollutants directly limited by thoseguidelines, and (B) by deleting oradjusting permit limitations forpollutants not directly limited by theguidelines upon a showing by thepermittee that such limitations are notappropriate. Nothing in paragraph(a)(5](xi) of this section shall limit theavailability of a fundamentally differentfactors variance under § 125.30.

(xii) To correct technical mistakes,such as errors in calculation, ormistaken interpretations of law made indetermining permit conditions.

(xiii) When the discharger hasinstalled the treatment technologyconsidered by the permit writer insetting effluent limitations imposedunder section 402(a)(1) of the CWA andhas properly operated and maintainedthe facilities but nevertheless has beenunable to achieve those effluentslimitations. If there is a subsequentlypromulgated, applicable effluentlimitations guideline, see paragraph(a)(5)(xi) of this section to determine themodified limitations.

(xiv) When the permit becomes finaland effective on or after March 9, 1982,and the permittee applies for themodification no later than 90 days afterthe effective date of final regulations

issued under the Settlement Agreementdated June 7, 1982 in connection withNatural Resources Defense Council v.EPA, No. 80-1607 and consolidatedcases, if the permittee shows good causein its request and that it qualifies for themodification, to conform to changesrespecting the following regulationsissued under that Settlement Agreement:

40 CFR 122.60(g)(2)(ii)40 CFR 122.63(b)40 CFR 122.63(c)40 CFR 122.65.

7. Section 122.17 is proposed to beamended by adding.a new paragraph(g)(3) to read as follows:

§ 122.17 Minor modifications of permits.* * * * *

(g) * *

(3] When the permit becomes finaland effective on or after March 9, 1982,to conform to changes respecting§ § 122.7(e), 122.7(1), 122.60(g(2)(i),122.60(g)(4)(i)(B), 122.60(h) and 122.61(a)issued under the Settlement Agreementdated June 7, 1982 in connection withNatural Resources Defense Council v.EPA, No. 80-1607 and consolidatedcases.* * * * *

Subpart D-Additional Requirementsfor National Pollutant DischargeElimination System Programs Underthe Clean Water Act

8. Section 122.53 is proposed to beamended by designating the existingparagraph (b) as (b)(1) and adding anew paragraph (b](2); by revising theintroductory text of paragraph (d)(7),revising paragraphs (d)(7) (i)(B),(d)(7)(iii), and (d)(9); by removingparagraph (d)(10); by redesignatingparagraphs (d)(11) through (d)(13) as(d)(10) through (d)(12); and by revisingparagraph (h)(4) to read-as follows:

§ 122.53 Application for a permit.* * * * *

(b) ** *(2) Any existing storm water

discharger under § 122.57 which doesnot have an effective permif shallsubmit an application by (6 months afterpublication of this regulatory revision inthe Federal Register). Any dischargerdesignated under §122.57(c) shallsubmit an application within 6 monthsof notification of its designation.* * * * *

(d) * * *(7) Effluent characteristics.

Information on the discharge ofpollutants specified in thissubparagraph. When "quantitative

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Federal Register I Vol. 47, No. 223 I Thursday, November 18, 1982 I Proposed Rules 52087

data" for a pollutant is required, theapplicant must collect a sample ofeffluent and analyze it for the pollutantin accordance with analytical methodsapproved under 40 CFR Part 136. Whenno analytical method is approved theapplicant may use any suitable methodbut must provide a description of themethod. When an applicant has two ormore outfalls with substantiallyidentical effluents, the Director mayallow the applicant to test only oneoutfall and report that the quantitativedata also applies to the substantiallyidentical outfalls. The requirements inparagraphs (d)(7) (iii) and (iv) of thissection that an applicant must providequantitative data for certain pollutantsknown or believed to be present doesnot apply to pollutants present in adischarge solely as the result of theirpresence in intake water; however, anapplicant must report such pollutants aspresent. Grab samples must be used forpH, temperature, cyanide, total phenols,residual chlorine, oil and-grease, andfecal coliform. For all other pollutants,24-hour composite samples must beused. However, a minimum of one grabgample may be taken for effluents fromholding ponds or other impoundmentswith a retention period greater than 24hours, and a minimum of one to four (4)grab samples may be taken for stormwater discharges depending on theduration of the discharge. One grab shallbe taken in the first hour (or less) ofdischarge with one additional grabtaken in each succeeding hour ofdischarge up to a minimum of four grabsfor discharges lasting four or morehours. In addition, the Director maywaive composite sampling for anyoutfall for which the applicantdemonstrates that the use of anautomatic sampler is infeasible.and thatthe minimum of four (4) grab sampleswill be a representative sample of the.effluent being discharged. An applicantis expected to "know or have reason tobelieve" that a pollutant is present in aneffluent based on an evaluation of theexpected use, production, or storage ofthe pollutant, or on any previousanalyses for the pollutant. (For example,any pesticide manufactured by a facilitymay be expected to be present incontaminated storm water runoff fromthe facility.)

(i * * *(B) The Director may waive the

reporting reqdirements for individualpoint sources or for a particular industrycategory for one or more of thepollutants listed in paragraph (d)(7)(i)(A)of this section if the applicant hasdemonstrated that such a waiver isappropriate because information

adequate to support issuance of a permitcan be obtained with less stringentrequirements.

(iii)(A) Each applicant must indicatewhether it knows or has reason tobelieve that any of the pollutants inTable IV of Appendix D (certainconventional and nonconventionalpollutants) is discharged from eachoutfall. If an applicable effluentlimitations guideline either directlylimits the pollutant or, by its expressterms, indirectly limits the pqllutantthrough limitations on an indicator, theapplicant must report quantitative data.For every pollutant discharged which isnot so limited in an effluent limitationsguideline, the applicant must eitherreport quantitative data or brieflydescribe the reasons the pollutant isexpected to be discharged.

(B) Each applicant must indicatewhether it knows or has reason tobelieve that any of the pollutants listedin Table II or Table III of Appendix D(the toxic pollutants and total phenols)for which quantitative data are nototherwise required under paragraph(d)(7)(ii) of this section, is dischargedfrom each outfall. For every pollutantexpected to be discharged on a routineor frequent basis in concentrations of100 ppb or greater the applicant mustreport quantitative data. For acrolein,acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, where thesefour pollutants are expected to bedischarged on a routine or frequentbasis in concentrations of 500 ppb orgreater the applicant must reportquantitative data. For every pollutantexpected to be discharged inconcentrations less than 100 ppb, or inthe case of acrolein, acrylonitrile, 2,4dinitrophenol, and 2-methyl-4,6dinitrophenol, in concentrations lessthan 500 ppb the applicant must eithersubmit quantitative data or brieflydescribe the reasons the pollutant'isexpected to be discharged. An applicantqualifying as a small business underparagraph (d)(8) of this section is notrequired to analyze for pollutants listedin Table II of Appendix D (the organictoxic pollutants).

(9) Storm water discharge exemption.(i) An applicant that qualifies as aGroup I storm water discharger under§ 122.57(b)(2) is exempt from therequirement in paragraph (d)(7)(iii) ofthis section that it report quantitativedata for those pollutants listed in Tables1I, III, or IV that it knows or has reasonto believe are discharged from theoutfall. However, the applicant mustindicate whether it knows or has reason

to believe that any of those pollutantsare present. For every pollutantexpected to be discharged, the applicantmust briefly describe the reasons thepollutant is expected to be discharged.

(ii) An applicant that qualifies as aGroup II storm water discharger under§ 122.57(b)(3] is exempt from therequirements of paragraphs (d)(2), (d)(5),(d)(6], (d)(7), (d)(10), and (d)(11) of thissection.

(iii) For the purpose of paragraph(d)(3) of this section, both Group I andGroup II storm water dischargers mayestimate the average flow of theirdischarge and must indicate the-rainfallevent this estimate is based on.

(iv) The Director may requireadditional information under paragraph(d)(12) of this section.

(h) * * *(4) Any interested person may

challenge the Regional Administrator'sinitial new source determination byrequesting an evidentiary hearing underSubpart E of Part 124 within 30 days ofissuance of the public notice of theinitial determination. If all parties to theevidentiary hearing on thedetermination agree, the Regional'Administrator may defer the hearinguntil after a final permit decision ismade, and consolidate the hearing onthe determination with any hearing onthe permit.

9. Section 122.57 is proposed to berevised to read as follows:

§ 122.57 Storm Water Discharges.(Applicable to State NPDES programs,

see § 123.7)(a) Permit requirement. Storm water

discharges, as defined in this section,are point sources subject to the NPDESpermit program. The Director may issuean NPDES permit or permits fordischarges into waters of the UnitedStates from a storm water dischargecovering all conveyances which are apart of that storm water discharge.Where there is more than one owner oroperator of a single system of suchconveyances, any or all discharges intothe storm water discharge system maybe identified in the applicationsubmitted by the owner or operator ofthe portion of the system that dischargesdirectly into waters of the United States.Any such application shall include allinformation regarding dischargers intothe system that would be required if thedischargers submitted separateapplications. Dischargers so identifiedshall not require a separate permitunless the Director specifies otherwise.Any permit covering more than one

47, No. 223 / Thursday, November 18, 1982 / Proposed Rules 52087Federal Register / Vol.




owner or operator shall identify theeffluent limitations, if any, which applyto each owner or operator. Where thereis more than one owner or operator, nodischarger into a storm water dischargemay be subject to a permit condition fordischarges into the storm waterdischarge other than its own dischargesinto that system without its consent.(See § 122.53(b)(2) for applicationdeadlines for existing storm waterdischarges.)

(b) Definitions. (1) "Storm waterdischarge" means a conveyance orsystem of conveyances (include pipes,conduits, ditches, and channels)primarily used for collecting andconveying storm water runoff and which

(i) Discharges storm water runoffcontaminated by contact with processwastes, raw materials, toxic pollutants,hazardous pollutants listed in Table V ofAppendix D, or oil and grease; or

(ii) Is designated under paragraph (c)of this section.

"Storm water discharge" excludesconveyances which discharge stormwater runoff combined with municipalsewage.

(2) "Group I storm water discharge"means any 'storm water discharge'which is

(i) Subject to effluent limitationsguidelines or toxic pollutant effluent

•standards;(ii) Designated under paragraph (c) of

this section; or(iii) Located at an industrial plant or

in plant associated areas, if there is apotential for significant discharge ofstorm water contaminated by contactwith process wastes, raw materials,toxic pollutants, or hazardous pollutantslisted in Table V of Appendix D. "Plantassociated areas" means industrialplant yards, immediate access roads,drainage ponds, refuse piles, storagepiles or areas, and material or productsloading and unloading areas. The termexcludes areas located on plant landbseparate from the plant's industrialactivities, such as office buildings andaccompanying parking lots. (See§ 122.53(d)(9)(i) for exemptions fromcertain application requirements.)

(3) "Group II storm water discharge"means any "storm water discharge" notincluded in paragraph (b)(2) of thissection. (See § 122.4(d)(7) and§ 122.53(d)(9)(ii) for exemptions fromcertain application requirements.)

(4) A conveyance or system ofconveyances operated primarily for thepurpose of collecting-and conveyingstorm water runoff which does notconstitute a "storm water discharge"under paragraph (b)(1) of this section isnot considered a point source subject tothe requirements of CWA.

(5) Whether a system of'conveyancesis or is not a storm water discharge forpurposes of this section shall have nobearing on whether the system iseligible for funding under Title II ofCWA. See 40 CFR § 35.925-21.

(c) Case-by-case designation of stormwater discharges. The Director maydesignate a conveyance or.system ofconveyances primarily used forcollecting and conveying storm waterrunoff as a storm water discharge. Thisdesignation may be made when:

(1) A Water Quality Management planunder section 208 of CWA whichcontains requirements applicable tosuch point sources is approved; or

(2) The Director determines that astorm water discharge is a significantcontributor of pollution to the waters ofthe United States. In making thisdetermination the Director shallconsider the following factors:

(i) The location of the discharge withrespect to waters of the United States;

(ii) The size of the discharge;(iii) The quantity and nature of the

pollutants reaching waters of the UnitedStates; and

(iv) Other relevant factors.10. Section 122.59 is proposed to be

amended by revising paragraph (a)(2) toread as follows:

§ 122.59 General permits.* * * * *

(a) * * *(2) Sources. The general permit may

be written to regulate, within the areadescribed in paragraph (a)(1) of thissection, either:

(i) Storm water discharges; or(ii) A category of point sources other

than storm water discharges if thesources all:

(A) Involve the same or substantiallysimilar types of operations;

(B) Discharge the same types ofwastes;

(C) Require the same effluentlimitations or operating conditions;

(D) Require the same or similarmonitoring; and

(E) In the opinion of the Director, aremore appropriately controlled under ageneral permit than under individualpermits.* * * 1* *

11. Section 122.60 is proposed to beamended by revising paragraphs (g)(2),(g)(4)(i)(B), (h)(1), (h)(2), and (h)(3)(i); byredesignating paragraph (h)(4) as (h)(5)and by adding a new paragraph (h)(4) toread as follows:

§ 122.60 Additional conditions applicableto all NPDES permits.

(g) *•

(2)(i) The permittee may allow anybypass to occur if combined dischargesfrom the outfall being bypassed andfrom any bypass discharge points do notexceed effluent limitations, on thefollowing conditions:

(A) Except for discharges of producedwater from offshore oil and gasexploration and production facilities, allsuch discharge points shall bemonitored during reporting periodsaffected by by-passes, and all resultsshall be reported to the Director in theDischarge Monitoring Report. Thepermit shall include such additionalmonitoring requirements as the Directorfinds necessary to assure that effluentlimitations are not exceeded.

(B) For discharges of produced waterfrom offshore oil and gas explorationand production facilities, the Director,upon demonstration by the permitteethat effluent limitations will not beexceeded during certain bypassconditions, may allow such bypasses tooccur without monitoring.

(ii) These bypasses are not subject tothe provisions of paragraph (g)(3) and(g)(4) of this section.* * * * *

(4) * * *

(B) There were no feasiblealternatives to the bypass, such as theuse of auxiliary treatment facilities,retention of untreated wastes, ormaintenance during normal periods ofequipment downtime. This condition isnot satisfied if adequate back-upequipment should have been installed inthe exercise of reasonable engineeringjudgment to prevent a bypass whichoccurred during normal periods ofequipment downtime or preventivemaintenance; and

(h) Upset-(1) Definition. "Upset"means an exceptional incident in whichthere is unintentional and temporarynoncompliance with permit effluentlimitations because of factors beyondthe reasonable control of the permittee.An upset does not includenoncompliance to the extent caused byoperational error, improperly designedtreatment facilities, inadequatetreatment facilities, lack of preventivemaintenance, or careless or improperoperation.

(2) Effect of an upset. An upsetconstitutes an affirmative defense to anaction brought for noncompliance withtechnology-based permit effluentlimitations if the requirements ofparagraph (h)(3) of this section are met.No determination made duringadministrative review of claims that

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noncompliance was caused by upset,and before an action for noncompliance,is final administrative action subject tojudicial review.

(3) * * *(i) An upset occurred and that the

permittee can identify the cause(s) ofthe upset;* * * * *

(4) Upsets where limitations arebased on water quality. In addition tothe demonstration required underparagraph (h)(3) of this section, apermittee who wishes to establish theaffirmative defense of upset for aviolation of effluent limitations basedupon water quality standards shall alsodemonstrate that the standards wereachieved in all stream segments, and forall pollutants or parameters, whichcould have been affected by thenoncomplying discharge.* * * • *

12. Section 122.61 is proposed to beamended by revising the introductorytext of paragraph (a)(1), (a)(1)(iii), and(a)[2) to read as follows:

§ 122.61 Additional conditions applicableto specified categories of NPDES permits.

(a) * * *(1) That any activity has occurred or

will occur which would result in thedischarge, on a routine or frequent basis,of any toxic pollutant which is notlimited in the permt, if that dischargewill exceed the highest of the following"notification levels:"* * * * *

(iii) Five (5) times the maximumconcentration value reported for thatpollutant in the permit application inaccordance with § 122.53(d)(7); or* * * * *

(2) That any activity has occurred orwill occur which would result in anydischarge, on a non-routine or infrequentbasis, of a toxic pollutant which is notlimited in the permit, if that dischargewill exceed the highest of the followingnotification levels:

(i) Five hundred micrograms per liter(500 ug/1);

(ii) One milligram per liter (1 mg/I) forantimony;

(iii) Ten (10) times the maximumconcentration value reported for thatpollutant in the permit application inaccordance with § 122.53(d)(7);

(iv) The level established by theDirector in accordance with § 122.62(f).

13. Section 122.62 is proposed to beamended by revising paragraphs (d)(3),(d)(9) and {l)(1) to read as follows; byremoving paragraph (e)(1)(ii); and byredesignating paragraph (e)(1)(i) asparagraph [e)(1):

§ 122.62 Establishing NPOES permitconditions.* * * * *

(d) ***(3) Conform to the conditions of a

State certification under section 401 ofthe CWA which meets the requirementsof § 124.53 when EPA is the permittingauthority. If a State certification isstayed by a court of competentjurisdiction or an appropriate Stateboard or agency, EPA shall notify theState that the Agency will deemcertification waived unless a finallyeffective State certification is receivedwithin sixty days from the date of thenotice. If the State does not forward afinally effective certification within thesixty day period, EPA shall includeconditions in the permit which may benecessary to meet EPA's obligationunder section 301(b)(1)(C) of the CWA;

(9) Incorporate any other appropriaterequirements, conditions, or limitations(other than effluent limitations) into anew source permit to the extent allowedby National Environmental Policy Act,42 U.S.C. §§ 4321 etseq. and section 511of the CWA, when EPA is the permitissuing authority (See § 122.66(c)).* * * * *

(I) Reissued permits: (1) When apermit is renewed or reissued,limitations, standards, or conditionswhich are at-least as stringent as thefinal limitations, standards, orconditions in the previous permit (unlessthere exists cause for permitmodification under t 122.15(a)).

14. Section 122.63 is proposed to beamended by revising paragraphs (b)(2),(c), (g), and (h) to read as follows:

§ 122.63 Calculating NPDES permitconditions.* * * * *

(b) * * *(2)[i) Except in the case of POTWs or

as provided in subparagraph (ii) of thisparagraph, calculation of any permitlimitations, standards, or prohibitionswhich are based on production (or othermeasure of operation) shall be based notupon the designed production capacitybut rather upon a reasonable measure ofactual production of the facility, such asthe production during the high month ofthe previous year, or the monthlyaverage for the highest of the previous 5years. For new sources or newdischargers, actual production shall beestimated using projected production.The time period of the measure ofproduction shall correspond to the timeperiod of the calculated permitlimitations; for example, monthly

production shall be used to calculateaverage monthly discharge limitations.

iii) (Applicable to the automotivemanufacturing industry) If the applicantsatisfactorily demonstrates to theDirector at the time the application issubmitted that its actual production, asindicated in (b)(2](i) of this section, issubstantially below maximumproduction capability and that there is areasonable potential for an increaseabove actual production during theduration of the permit, the State Director-may and the Regional Administratorshall include a condition establishingalternate permit limitations, standards,or prohibitions based upon theincreased production levels anticipated(not to exceed maximum productioncapability). The condition shallauthorize discharges in compliance withthe higher alternate limitations,standards, or prohibitions upon writtennotice to the Director at least twobusiness days before the month inwhich increased production isanticipated. The notice shall state thatthe permittee anticipates qualifying foralternate limits for a period not toexceed thirty days. If increasedproduction is anticipated to continuebeyond the period identified in thenotice, a new notice shall be submittedat least two business days prior to thecommencement of the new period. Thepermittee shall comply with thelimitations, standards, or prohibitionsthat reflect the level of actual productionfor that period not to exceed themaximum level The permittee shallsubmit with the DMR for that period thelevel of production that actuallyoccurred and the limitations, standards,or prohibitions applicable to that levelof production.

(c) Metals. All permit effluentlimitations, standards, or prohibitionsfor a metal shall be expressed in termsof "total recoverable metal" as definedin 40 CFR Part 136 unless:

(1) An applicable effluent standard orlimitation has been promulgated underthe CWA and specifies the limitation forthe metal in the dissolved or valent ortotal form; or

(2) In establishing permit limitationson a case-by-case basis under § 125.3, itis necessary to express the limitation onthe metal in the dissolved or valent ortotal form to carry out the provisions ofthe CWA; or

(3) All approved analytical methodsfor the metal inherently measure only itsdissolved form (e.g., hexavalentchromium).* * * * *

(g) Pollutants in intake water. Exceptas provided in paragraph (h) of this

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section technology-based effluentlimitations in permits shall not beadjusted for pollutants in the intakewater. This paragraph (g) and paragraph(h) do not preclude taking into account,as appropriate, the presence ofpollutants in intake water inimplementing water quality standards.

(h) Net Limitations: (1] Upon requestof the discharger, technology-basedeffluent limitations or standardsimposed in a permit shall be calculatedon a "net" basis; that is, adjusted toreflect credit for pollutants in thedischarger's intake water, if:

(i) The applicable effluent limitationsand standards contained in 40 CFRSubchapter N specifically provide thatthey shall be applied on a net basis; or

(ii) The discharger demonstrates thatthe control system it proposes or uses tomeet applicable technology-basedlimitations and standards would, ifproperly installed and operated, meetthe limitations and staridards in theabsence of pollutants in the intakewater.

(2) A permit containing effluentlimitations or standards imposed on anet basis must require that:

{i) The permittee conduct additionalmonitoring (for example, for flow andconcentration of pollutants) asnecessary to determine continuedeligibility for and compliance with anysuch adjustments; and

(ii) The permittee notify the Director ifeligibility for an adjustment under thissection has been altered or no longerexists. In that case, the permit may bemodified accordingly under § 122.15.

(3) Permit effluent limitations orstandards adjusted under thissubsection shall be calculated on thebasis of the amount of pollutantspresent in the intake water, only to theextent the discharger demonstrates isnecessary to meet the applicablelimitations and standards after applyingthe control system identified pursuant to§ 122.63(h)(1)ii) except to the extentthat the applicant can show that thecosts of control are significantly greaterthan the costs reflected in applicableeffluent limitations guidelines, as aresult of the presence of intakepollutants. Where the Directorconcludes that limitations on generic

* measures of pollution, such as Oil andGrease, Total Suspended Solids,Biochemical Oxygen Demand, or TotalOrganic Carbon are necessary to controltoxic or non-conventional pollutants nototherwise limited in the permit, effluentlimitations or standards for such genericmeasures of pollution may be adjustedonly if:

(i) The permittee agrees to theinclusion of specific effluent limitations

on those nonconventional or toxicpollutants; or

(ii) The permittee shows that theeffluent is not substantially greater intoxicity than the intake water; or

(iii) The permittee shows that theconstituents of the generic measure inthe effluent are substantially similar inchemical characteristics to the sameconstituents of the generic measure inthe intake water,, in which case thelimittions may be adjusted to theextent such similarity is demonstrated.The showing of substantial similarityrequired under § 122.63(h)(3) may bemade by showing similarity in the levelsof priority toxic pollutants in the intakewater and effluent, performing anaquatic toxicity test on the intake waterand effluent, or in appropriate cases, bydemonstating that the nature of thefacility, its processes, or othercircumstances make clear that theintake water and effluent are similar.

(4) Discharges of raw water clarifiersludge and filter backwash aredischarges subject to NPDES permitsand thus are eligible for a net limit inaccordance with the procedures outlinedin this provision. In showing eligibilityfor a net limitation the permittee neednot make the demonstration required byparagraph (h)(1)(ii) of this section as tothe use of control technology to meet theapplicable effluent limitations.However, in calculating a net limit, thepermit writer shall provide that thedischarge does not result in the violationof applicable water quality standards.The permit writer should consider insetting effluent limitations thosechemicals, if any, added to thedischarge. Net limits for discharges ofraw water clarifier sludge or filter back-wash shall be available for thosedischarges at the outfall at which thedischarge actually occurs, whether thisis through a separate outfall or incombination with other discharges.

15. Section 122.65 is proposed to beamended by revising the introductorytext of paragraph (a) and paragraph(a)(2), redesignating paragraphs (b) and(c) as (c) and (d), adding a newparagraph (b), and by revising theintroductory text of newly redesignatedparagraph (c) to read as follows:

§ 122.65 Disposal of pollutants Into wells,Into publicly owned treatment works or byland application.

(Applicable to State NPDES program,see § 123.7.)

(a) Disposal into POTWs. When partof a discharger's process wastewater isnot being discharged into waters of theUnited States or contiguous zonebecause it is disposed into a POTW,

thereby reducing the flow or level ofpollutants being discharged into watersof the United States, applicable effluentstandards and limitations for thedischarge in an NPDES permit shall beadjusted to reflect the reduced rawwaste resulting from such disposal.Effluent limitations and standards in thepermit shall be calculated by one of thefollowing methods:

(2) In all cases other than thosedescribed in paragraph (a)[1) of thissection, effluent limitations shall beadjusted by multiplying the effluent'limitation derived by applying effluentlimitation guidelines to the total wastestream by the amount of wastewaterflow to be treated and discharged intowaters of the United States, anddividing the result by the totalwastewater flow. Effluent limitationsand standards so calculated shall befurther adjusted by the Director ifapplication of this paragraph wouldrequire a greater degree of effluentreduction (taking into account bothreduction at. the POTW and reduction atthe permittee's facility) than would havebeen required by the effluent limitationsguideline if the permittee had dischargedall wastewater directly.

This method may be algebraicallyexpressed as:P= ExN/T

where P is the permit effluent limitation,E is the limitation derived by applyingeffluent guidelines to the totalwastestream, N is the wastewater flowto be treated and discharged to watersof the United States, and T is the totalwastewater flow.

(b) Disposal into wells or by landapplication. If all the wastes from aparticular process are discharged intowells or to land application, and effluentlimitations guidelines provide separateallocation for wastes from that process,all allocations for the prpcess shall beeliminated from calculation of permiteffluent limitations or standards. If aportion of the wastes from the process isdischarged to wells or to landapplication, the discharger shall receivethe full amount of allocation authorizedunder the applicable effluent limitationsguidelines unless:

(1) The allocation is for a pollutantwhich is an indicator for a toxicpollutant; and

(2) The levels of toxic pollutantswhich will be discharged are higher thanthey would be if the guidelines wereapplied to the entire waste stream. Insuch cases, the Director shall adjust theeffluent limitations as necessary toensure the degree of control of toxic




pollutants contempleted by theapplicable effluent limitationsguidelines.

(c) Paragraphs (a) and (b) of thissection shall not apply to the extent thatpromulgated effluent limitationsguidelines:

16. Section 122.66 is proposed to beamended by revising paragraphs (c)(3)and (c)(4), and removing (c)(5) to read asfollows:

§ 122.66 New sources and newdischargers.

(c) * * *(3) The Regional Administrator, to the

extent allowed by law, shall issue,condition (other than imposing effluentlimitations), or deny the new sourceNPDES permit following a completeevaluation of any significant beneficialand adverse impacts of the proposedaction and a review of therecommendations contained in the EISor finding or no significant impact.

(4) An applicant for a new sourcepermit for which an EIS may be requiredunder NEPA should submit theapplication sufficiently early to allowfor completion of NEPA review prior tocommencement of construction. If theapplicant commences construction priorto completion of NEPA review, EPA willnot consider, in balancing costs andbenefits, any costs which might beincurred by the applicant in restoringthe site or in altering construction plans.

Appendix D to Part 122-NPDES PermitApplication Testing Requirements(§122.53) [Amended]

17. Appendix D of Part 122 isproposed to be amended by retitlingTable III to read as follows:

Table II: Other Toxic Pollutants (Metals andCyanide) and Total Phenols

PART 124-PROCEDURES FORDECISIONMAKING

Subpart A-General ProgramRequirements


§ 124.13 Obligation to raise issues andprovide Information during the publiccomment period.

All persons, including applicants, whobelieve any condition of a draft permit isinapporpriate or that the Director'stentative decision to deny anapplication, terminate a permit, or,prepare a draft permit is inappropriate,must raise all reasonably ascertainableissues and submit all reasonablyavailable arguments supporting their

position by the close of the publiccomment period (including any publichearing) under § 124.10. Any supportingmaterials which are submitted shall beincluded in full and may not beincorporated by reference, unless theyare already part of the administrativerecord in the same proceeding, orconsist of State or Federal statutes andregulations, EPA documents of generalapplicability, or other generallyavailable reference materials.Commenters shall make supportingmaterial not already included in theadministrative record available to EPAas directed by the RegionalAdministrator. (A comment periodlonger than 30 days may be necessary togive commenters a reasonableopportunity to comply with therequirements of this section. Additionaltime shall be'granted under § 124.10 tothe extent that a commenter whorequests additional time demonstratesthe need for such time.)

19. Section 124.14 is proposed to beamended by redesignating paragraphs(a) through (d) as (b) through (e) and byadding a new paragraph (a) to read asfollows:

§ 124.14 Reopening of the publiccomment period.

(a)(1) The Regional Administratormay order the public comment periodreopened if the procedures of thisparagraph could expedite the decision-making process. When the publiccomment period is reopened under this'paragraph, all persons, includingapplicants, who believe any condition ofa draft permit is inappropriate or thatthe Regional Administrator's tentativedecision to deny an application,terminate a permit, or prepare a draftpermit is inappropriate, must submit allreasonably available factual groundssupporting their position, includihg allsupporting material, by a date, not lessthan sixty days after public notice underparagraph (a)(2) of this section, set bythe Regional Administrator. Thereafter,any person may file a written responseto the material filed by any otherperson, by a date, not less than twentydays after the date set for filing of thematerial, set by the RegionalAdministrator.

(2) Public notice of any commentperiod under this paragraph shallidentify the issues as to which therequirements of § 124.14(a) shall apply.

(3) On his own motion or on therequest of any person, the RegionalAdministrator may direct that therequirements of paragraph (a](1) of thissection shall apply during the initialcomment period where it reasonablyappears that issuance of the permit will

be contested and that applying theparagraph (a)(1) of this sectionrequirements will substantially expeditethe decision-making process. The noticeof the draft permit shall state wheneverthis has been done.

(4) A comment period of longer than60 days will often be necessary incomplicated proceedings to givecommenters a reasonable opportunity tocomply with the requirements of thissection. Commenters may request longercomment periods and they shall begranted under § 124.10 to the extent theyappear necessary.

Subpart D-Specific ProceduresApplicable to NPDES Permits

20. Section 124.56 is proposed to beamended by adding a new paragraph(b)(1)(iv) to read as follows:

§ 124.56 Fact sheets.

(b) .(1) * * *

(iv) Limitations set on a case-by-casebasis under § 125.3(c)(2) or (c)(3).

Subpart E-Evidentlary Hearing forEPA-issued NPDES Permits and EPA-Terminated RCRA Permits


§ 124.76 Obligation to submit evidenceand raise Issues before a final permit Isissued.

In any case where the RegionalAdministrator elected to apply therequirements of § 124.14(a), no evidenceshall be submitted by any party to ahearing under this Subpart that was notsubmitted to the administrative recordrequired by § 124.18 as part of thepreparation of and comment on a draftpermit, unless good cause is shown forthe failure to submit it. No issues shallbe raised by any party that were notsubmitted to the administrative recordrequired by § 124.18 as Part of thepreparation of and comment on a draftpermit unless good cause is shown forthe failure to submit them. Good causeincludes the case where the partyseeking to raise the new issues orintroduce new information shows that it

-could not reasonably have ascertainedthe issues or made the informationavailable within the time required by§ 124.15; or that it could not havereasonably anticipated the relevance ormateriality of the information sought tobe introduced. Good cause exists for theintroduction of data available on

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operation authorized under§ 124.60(a)(2).

22. Section 124.78 is proposed to beamended by revising paragraph (a)(1) toread as follows:

§ 124.78 Ex parte communications.(a) * * *(1) "Agency trial staff" means those

Agency employees, whether temporaryor permanent, who have beendesignated by the Agency under § 124.77or § 124.116 as available to investigate,litigate, and present the evidence,arguments, and position of the Agencyin the evidentiary hearing ornonadversary panel hearing. Any EPAemployee, consultant, or contractor whois called as a witness by EPA trial staff,or who assisted in the formulation of thedraft permit which is the subject of thehearing, shall be designated as amember of the Agency trial staff;* * * * *

23. Section 124.85 is proposed to beamended by adding a new paragraph (e)to read as follows:

§ 124.85 Hearing procedures.* t * * *

(e) Admission of Evidence onEnvironmental Impacts. If a hearing isgranted under this Subpart for a newsource subject to NEPA, the PresidingOfficer may admit evidence relevant toany environmental impacts of thepermitted facility if the evidence wouldbe relevant to the Agency's obligationsunder § 122.66(c)(3). If the source holds afinal RCRA, PSD, or UIC permit, or anocean dumping permit under the MarineProtection, Research, and SanctuariesAct (MPRSA), no such evidence shall beadmitted nor shall cross-examination beallowed relating to (1) effects on airquality, (2) effects attributable tounderground injection or hazardouswaste management proctices, or (3)effects of ocean dumping subject to theMPRSA, which were considered orcould have been considered in the PSD,RCRA, UIC, or MPRSA permit issuanceproceedings. However, the presidingofficer may admit without cross-examination or any supporting witnessrelevant portions of the record of PSD,RCRA, UIC, or MPRSA permit issuanceproceedings.

Subpart F-Non-Adversary PanelProcedures

24. Section 124.111 is proposed to beamended by revising the introductorytext of paragraph (a) as follows:

§ 124.111 Applicability.(a) Except as set forth in this Subpart,

the Regional Administrator may, withthe consent of the applicant, apply the

procedures of this Subpart in lieu of, andto complete exclusion of, Subparts Athrough E in the following cases:* * * * *

25. Section 124.120 is proposed to beamended by revising paragraph (a) asfollows:

§ 124.120 Panel hearing.(a) A Presiding Officer shall preside at

each hearing held under this Subpart.An EPA panel shall also take part in thehearing. The panel shall consist of threeor more EPA temporary or permanentemployees having special expertise orresponsibility in areas related to thehearing issue, none of whom shall havetaken part in formulating the draftpermit. If appropriate for the evaluationof new or different issues presented atthe hearing, the panel membership, atthe discretion of the RegionalAdministrator, may change or mayinclude persons not employed by EPA.

26. Section 124.121 is proposed to beamended by revising paragraphs (a)(1),(b) and (f) to read as follows:

§ 124.121 Opportunity for cross-examination.

(a) * * *(1) The disputed issues(s) of material

fact. This shall include an explanationof why the questions at issue arefactual, the extent to which they are indispute in light of the then-existing.record, and the extent to which they arematerial to the decision on theapplication; and* * * * *

(b) After receipt of all motions forcross-examination under paragraph (a)of this section, the Presiding Officer,after consultation with the hearingpanel, shall promptly issue an ordereither granting or denying each request.No cross-examination shall be allowedon questions of policy except to theextent required to disclose the factualbasis for permit requirements, or onquestions of law, or regarding matters(such as the validity of effluentlimitations guidelines) that are notsubject to challenge in permit issuanceproceedings. Orders granting requestsfor cross-examination shall be served onall parties and shall specify:

(1) The issues on which cross-examination is granted;

(2) The persons to be cross-examinedon each issue;

(3) The persons allowed to conduct.cross-examination;

(4) Time limits for the examination ofwitnesses by each cross-examiner; and

(5) The date, time and place of thesupplementary hearing at which cross-examination shall take place.

(f) The provisions of § § 124.85(d)(2)and 124.84(e) apply to proceedings underthis Subpart.

PART 125-CRITERIA ANDSTANDARDS FOR THE NATIONALPOLLUTANT DISCHARGEELIMINATION SYSTEM

27. Section 125.3 is proposed to beamended by revising paragraphs (c)(2)and (c)(3), removing paragraph (c)(4),redesignating paragraphs (d) through (g)as (e) through (h) and adding a newparagraph (d) to read as follows:

§ 125.3 Technology-based treatmentrequirements In permits.* * * * *

(c)* * *

(2] On a case-by-case basis undersection 402(a)(1) of the Act, to the extentthat EPA-promulgated effluentlimitations are inapplicable. The permitwriter shall apply the appropriatefactors listed in § 125.3(d) and shallconsider:

(i) The appropriate technology for thecategory or class of point sources ofwhich the applicant is a member, basedupon all available information; and

(ii) Any unique factors relating to theapplicant. The fact sheet required by§ 124.56 shall set forth the basis for anycase-by-case limitations imposed underthis section, This basis shall include ananalysis of the permit writer'sapplication of the appropriate factorslisted in § 125.3(d), an analysis of theselection and application of any otherfactors considered by the permit writer(e.g., any unique site-specific factors),and specific references to andexplanations of the use of and theapplicability of any federal or stateguidance memoranda, materials ordocuments relied on in setting thelimitations.

(3) Through a combination of themethods in paragraphs (c)(1) and (2) ofthis section. Where promulgated effluentlimitations guidelines only apply tocertain aspects of the discharger'soperation, or to certain pollutants, otheraspects or activities are subject toregulation on a case-by-case basis inorder to carry out the provisions of theAct. The fact sheet required by § 124.56shall setfforth the basis for theselimitations as required under paragraph(c)(2) of this section and, if effluentlimitations guidelines are applicable tothe facility covered by the permit, shallalso explain why regulation ofpollutants or activities not regulated bythe applicable effluent limitationsguidelines is needed.

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Federal Register I Vol. 47, No. 223 I Thursday, November 18, 1982 I Proposed Rules 503

(d) In setting case-by-case limitationspursuant to § 125.3(c), the permit writermust apply the following factors:

(1) For BPT requirements:(i) The total cost of application of

technology in relation to the effluentreduction benefits to be achieved fromsuch application;

(ii) The age of equipment and facilitiesinvolved;

(iii) The process employed;(iv) The engineering aspects of the

application of various types of controltechniques;

(v) Process changes; and(vi) Non-water quality environmental

impact (including energy requirements).(2) For BCT requirements:(i) The reasonableness of the

relationship between the costs ofattaining a reduction in effluent and theeffluent reduction benefits derived;

(ii) The comparison of the cost andlevel of reduction of such pollutantsfrom the discharge from publicly ownedtreatment works to the cost and level ofreduction of such pollutants from a classor category of industrial sources;

(iii) The age of equipment andfacilities involved;

(iv) The process employed;(v) The engineering aspects of the


(vi) Process changei; and(vii) Non-water quality environmental

impact (including energy requirements).(3) For BAT requirements:(i) The age of equipment and facilities

involved;(ii) The process employed;(iii) The engineering aspects of the


(iv) Process changes;(v) The cost of achieving such effluent

reduction; and(vi) Non-water quality environmental

impact (including energy requirements).

[FR Doc. 8241296 Filed 11-17-82; 8:45 am]

BILLING CODE 6560-50-M

40 CFR Part 122[WH-FRL-2228-6a]

Consolidated Permit Regulations;Suspension of NPDES ApplicationRequirementsAGENCY: Environmental ProtectionAgency (EPA).ACTION: Proposed suspension of portionof final rule.

SUMMARY: On June 7, 1982, EPA entered'into a Settlement Agreement withnumerous industry petitioners in the

consolidated permit regulationslitigation (NRDC v. EPA, No. 80-1607and consolidated cases, (D.C. Cir., filedJune 2, 1980)). The SettlementAgreement resolved many issuesrelating to requirements of the NationalPollutant Discharge Elimination System(NPDES) permit program under theClean Water Act (CWA). This noticeproposes to suspend certain provisionsof the consolidated permit regulationsand related provisions of consolidatedpermit application forms 1 and 2c tocorrespond with proposed changes tothe regulations agreed to in thatsettlement. This proposal would makethree types of changes. First, certainreporting requirements which apply toall existing industrial dischargersapplying for NPDES permits would besuspended. Second, several applicationrequirements would be suspended onlyas they apply to storm water discharges.Finally, the ban on construction of "newsources" prior to issuance of a finalNPDES permit would be eliminated.These suspensions would minimize theregulatory burdens imposed onapplicants for an NPDES Permit pendingfinal rulemaking on proposed changes tothese regulations. Notice of theseproposed changes is found elsewhere intoday's Federal Register.DATE: EPA will consider writtencomments on the proposed suspensionswhich are received by December 20,1982.ADDRESS: Send written comments toGail Goldberg, Office of WaterEnforcement and Permits,Environmental Protection Agency (EN-336), 401 M Street, S.W., Washington,D.C. 20460.FOR FURTHER INFORMATION CONTACT:Gail Goldberg, Office of WaterEnforcement and Permits (202/426-7010)or Karen Wardzinski, Office of GeneralCounsel (202/755-0753).SUPPLEMENTARY INFORMATION: On May19, 1980, EPA issued regulationsconsolidating the requirements andprocedures for five EPA permitprograms, including the NPDES programunder the CWA, the Hazardous WasteManagement Program (HWMP) underthe Resource Conservation andRecovery Act (RCRA), the UndergroundInjection Control (UIC) program underthe Safe Drinking Water Act (SDWA),State "Dredge and Fill" permit programsunder. section 404 of the CWA,! and, inlimited part, the Prevention ofSignificant Deterioration (PSD) Programunder the Clean Air Act (CAA), (45 FR35290). (For a more detailed descriptionof the *development of these regulationsand challenges filed against them, see 47FR 25546). At the same time, EPA

published consolidated permitapplication forms, two of which-forms1 and 2c-implemented NPDESregulations on application requirementsfor existing industrial dischargers, (45FR 33516).

Petitions which were filed in severalcourts of appeals' for review of theNPDES Portion of the consolidatedpermit regulations challenged, amongothers, several of the regulatoryprovisions which established NPDESapplication requirements and theprovision which imposed a pre-permitconstruction ban on "new sources." EPAparticipated in extensive negotiationswith both industry and environmentalgroups on issues raised in the petitionsfor review and on June 7, 1982 signed aSettlement Agreement with industrylitigants only, which resolved many ofthe NPDES issues. To implement thisSettlement Agreement, the Agency haselsewhere in today's Federal Registerproposed revisions to the regulations.Several of these proposed revisionsaffect application requirements forNPDES Permits. One provision affectsthe current prohibition on constructionof "new sources" until the issuance ofan NPDES permit. In order to provideexpedited relief to affected permitteesand prevent the collection andsubmission of what may ultimately beunnecessary information, EPA proposesto suspend certain portions of theregulations which relate to applicationrequirements. The proposed suspensionswould affect certain NPDES permitapplication information requirementsapplicable to all existing manufacturing,commercial, mining and silviculturalpoint source discharges, and certainadditional application informationrequirments as they apply to pointsource storm water discharges. Inaddition, EPA is proposing to suspendthe construction ban. Nothing in theClean Water Act or NEPA requires sucha ban. Moreover, retention of the banwould place unwarranted restrictions onconstruction of new sources;accordingly, no purpose is served byretaining the requirement during therulemaking process. Thus, applicants fora new source NPDES permit for whichan EIS is required would no longer beprohibited from beginning constructionprior to final agency action issuing afinal permit. These suspensions would,if adopted, carry out the objectives ofenhancing efficiency and eliminatingunnecessary regulatory burdens, as partof the Agency's response to thePresident's Task Force on Regulatory,Relief.

Federal Register / Vol. 47, No. 223 / Thursday, November 18, 1982 / Proposed Rules52093




A. Application Requirements forExisting Industrial Dischargers

Elsewhere in today's Federal Register,EPA* has proposed several revisions tothe NPDES portion of the consolidatedpermit regulations which willsignificantly alter the type and amountof information an NPDES permitapplicant must submit. Several of thecurrent regulatory provisions focus onthe "use or manufacture" of toxicpollutants in requesting informationfrom permitees or in requiring action onthe part of permit writers in issuing ormodifying permits. The intent of theClean Water Act is to control thedischarge of pollutants. Althoughfacilities may often discharge pollutantsthat are used in plant processes or thatare manufactured as products or by-products, discharge of all suchpollutants will not necessarily occur.EPA believes it is more appropriate tofocus on the discharge or potentialdischarge of toxic pollutants, rather thanon their use or manufacture by anapplicant. Application and permitrequirements which concentrate onpotential for discharge should provideadequate control of toxic discharges. Inthe meantime, no useful purpose wouldbe served by retention of thoserequirements which focus on "use ormanufacture", and which impose asignificant burden on applicants andpermittees.

With this in mind EPA proposes tosuspend the following sections:

Section 122.53(d)(9) (Item VI-A ofconsolidated permit application form2c), which requires permit applicants topredict potential future use ormanufacture of toxic pollutants;§ 122.62(e)1)(ii), which requires theDirector to control, through effluentlimitations imposed in a permit, all toxicpollutants used or manufactured by adischarger; and § 122.15(a)(5)(ix), whichauthorizes EPA to modify permits basedon information of new use ormanufacture of toxic pollutants.

In addition, EPA proposes to suspend§ 122.53(d)(10) (Item VI-B ofconsolidated permit application form2c). This provision requires an applicantto describe discharges of any pollutantswhich the applicant believes will exceedtwo times the values reported in theapplication. The provision, inconjunction with § 122.53(d)(9), requiresthe applicant to predict potential futureuse, manufacture, or discharge ofpollutants. EPA believes thisinformation would be useful to permitwriters in setting appropriate limitationsat the time the permit was issued and inensuring that necessary treatmentequipment would be installed to control

the discharge of such pollutants at thecommencement of their discharge.Although EPA continues to believe thatthis information is useful, it is notessential for writing adequate permitlimitations and conditions and thusimposes an unnecessary regulatoryburden on permit applicants. Permitteeswill be required to notify the permittingauthority when they begin or expect tobegin to discharge toxics at levels abovethose reported in the application (see,§ 122.61(a)). This should provide permitwriters with information with which todetermine if a permit modification isnecessary.

Elsewhere in today's Federal Register,EPA has proposed to delete each of thefour sections discussed above. Thatnotice contains a more detailedexplanation of the basis and purpose ofthis proposal.

B. Application Requirements for StormWater Discharges

Elsewhere in today's Federal Register,EPA has also proposed revisions to theregulations which affect only storm -water discharges. That proposal intendsto limit the types of storm waterdischargers which are considered "pointsources" subject to NPDES permittingand reduce the amount of informationthese dischargers must submit in anNPDES application. Today's proposedsuspension differs somewhat from thoseintended proposed revisions. We do notthink it appropriate for EPA to eliminateparticular sources from the definition of"point source" through the suspensionprocess, since our action in that casewould be a substantive change to thecurrent regulation and not merely asuspension of its applicability to givensources. In most other respects,however, today's suspension tracks theproposed amendments to theregulations. Thus, today's suspensionswill propose to suspend certainapplication requirements as they affectstorm water discharges considered to be"point sources" under the currentregulations. The suspensions wouldprevent the collection and submission oftesting and reporting requirementswhich may be eliminated in final rules.A more detailed explanation of EPA'sproposal to suspend appears in thepreamble to the proposed revisionsfound elsewhere in today's FederalRegister., The amount of information anapplicant will be required to submit willdepend upon the type of storm waterdischarge involved. We have dividedstorm water discharges into two broadgroups based upon their potential forsignificant pollution problems, Imposingfewer substantive requirements on those

discharges which we believe are lesslikely to be significant sources ofpollution.

1. Group L This first group consists ofstorm water discharges which (1) aresubject to specific effluent limitationsguidelines or toxic pollutant effluentstandards, (2) are designated assignificant contributors of pollution bythe Director under § 122.57(c), or (3) arelocated at industrial facilities in areasimmediately adjacent to the industrialplant or in plant associated areas, ifthere is a potential for significantdischarge of storm water contaminatedby contact with process wastes, rawmaterials, toxic pollutants, or hazardoussubstances listed in Table V ofAppendix D. This third category coversconveyances which discharge stormwater runoff from lands or buildings ofan industrial plant where runoff has thepotential for becoming contaminatedfrom contact with raw materials,intermediate or finished products,wastes, or substances used inproduction or treatment operations. Theterm "industrial plant associated areas"includes such areas as industrial plantyards, immediate access roads, drainageponds, refuse piles, storage piles orareas, and material or products loadingand unloading areas. The term excludescommercial areas located on plant landsseparate from the plant's industrialactivities, such as office buildings andaccompanying parking lots, since it isnot expected that significantcontamination from process operations'will occur here.'

Persons whose storm waterdischarges fall within any of the threecategories in Group I will be required tosubmit applications which comply withall the iequirements of § § 122.4 and122.53, and consolidated permitapplication forms 1 and 2c (see 45 FR33516), with one exception. Therequirements in § 122.53(d)(7)[iii) thatapplicants report quantitative data isproposed to be suspended. For Group Idischarges, applicants would berequired only to indicate in Items V-Band V-C of form 2c whether they.believe any of the listed pollutants arepresent or absent and briefly describewhy. Applicants would not be requiredto test for pollutants which they believeto be present. However, Group Iapplicants will report quantitative dataunder § 122.53(d)(7)(i)(A), Item V-A ofform 2c.

2. Group II. The second group consistsof all point source storm waterdischarges required to be permittedunder current § 122.57 that are notincluded in Group I. In general, it isexpected that the storm water

52094




discharges included in Group II are lesslikely than those in Group I to createsignificant pollution problems.Accordingly, EPA has proposed tofurther reduce the information thesedischargers must submit to thepermitting authority. Only basicinformation to identify the type, number;and location of Group II storm waterdischarges would be required. No testingfor any pollutants listed in Item V ofapplication form 2c (§ 122.53(d)(7))would be required. Group I dischargerswould be required to submit all of form1 of the consolidated permit applicationexcept the requirement of Item XI(§ 122.4(d)(7)) to submit a topographicmap of the permitted area. Since ourpurpose in requesting information fromGroup II dischargers is to obtain generalidentification information, the detailprovided by a topographic map is notnecessary at this time. In addition, onlylimited provisions of form 2c would be

Group I

Coverage

Storm water discharges:(1) Subject to specific effluent guidelines or toxic pollutant

effluent standards(2) Designated as significant contributors of pollution, or(3) Located at industrial facilities in areas immediately

adjacent to the industrial plant or in plant associatedareas, if there is a potential for significant contaminationwith process wastes, raw materials, toxic pollutants orhazardous substances

Provisions Suspended

Form 2c, Items-V-B-testing only (§ 122.53(d)(7)(iii)(B))v-C-testing only (§ 122.53(d)(7)(iii)(A))A permit applicant must indicate whether it believes the

listed pollutant to be present or absentVI (§ 122.53(d)(9), (10)

Provisions Still Applicable

Form 1, All Items (§ 122.4)Form 2c, Items-

I (@ 122.53(d)(1))II (@ 122.53(d)(2). (3), (4))Ill (@ 122.53(d)(5))IV ( 122.53(d)(6))V-A (4 122.53(d)(7)(i))V-B (4 122.53(d)(7)(iii)(B))'V-C (§ 122.53(d)(7)(iii)(A))'V-D @ 122.53(d)(7)(iv))VII @ 122.53(d)(11))VIII (§ 122.53(d)(12))IX @ 122.6(d))

C. Construction BanElsewhere in today's Federal Register,

the Agency has proposed to eliminatethe "construction ban" imposed on "newsources" prior to issuance of an NPDESpermit. See 40 CFR 122.66(c)(4).

In issuing permits to "new sources"(see § 122.3 for definition) in Stateswithout approved NPDES programs,EPA must comply with the NationalEnvironmental Policy Act (NEPA), 42U.S.C. § 4231 et seq. NEPA requires,among other things, the preparation ofan environmental impact statement(EIS) on any major federal actionsignificantly affecting the environment.Existing § 122.66(c) (4) and (5] prohibitsthe construction of a new source, for

required to be submitted. Group IIdischargers would submit Items I and II-B and C (see §§ 122.53(d)(1), (d)(3) and(d)(4)), indicating the location and flowof each storm water outfall, the name ofthe receiving water and any treatmentbeing done. Group II permit applicantswould also have to complete therequirement of Item IX (see § 122.6(d)),certification of the permit application.All other provisions of form 2c (Items I1-A, III, IV, V, VI, VII, and VIII) areproposed to be suspended. Thus, forGroup II permit applicants, therequirements of § 122.53(d)(2), (d)(5),(d)(6), (d)(7), (d)(9), (d)(10), (d)(11), and(d)(12) are all proposed to be suspended.As always, permit writers retain theauthority to require additionalinformation where necessary to issueadequate permits.

The terms of the proposed suspensionfor storm water discharges aresummarized in the following chart:

Group I

CoverageStorm water discharges:All storm water discharges currently identified as "point

source" discharges under § 122.57, but which are notcovered in Group 1.

Provisions Suspended

Form 1, Item-Xl--(§ 122.4(d)(7))Form 2c, items-

Il-A @ 122.53(d)(2))III @ 122.53(d)(5))IV @ 122.53(d)(6))V (§ 122.53(d)(7))VI (§ 122.53(d)(9), (10))VII (§ 122.53(d)(11))VIII (§ 122.53(d)(12))

Provision Still Applicable

Form 1, Items (§ 122.4)I-XXIIXII

Form 2c, Items-I ( 122.53(d)(1))II-B&C (§ 122.53(d)(3), (4))IX @ 122.6(d)

NOTE.-For Items V-B and V-C indicate only whether thepollutants listed are believed to be present or absent.

which an environmental impactstatement is required, before EPAcompletes its review of environmentalimpacts under NEPA, unless theapplicant signs an agreement to complywith appropriate NEPA-basedrequirements or the RegionalAdministrator makes a finding that suchconstruction will not cause significant orirreversible adverse environmentalimpact.

Many dischargers and applicantshave questioned EPA's legal authority toadopt and enforce a ban onconstruction. The ban was originallyintended to ensure that EPA was notdeprived, at the time of issuing a permit,of the ability to consider all alternatives

to the proposed action, includingalternative sites or not constructing thedischarging source at all. Thoseobjecting to the ban have argued thatthe Clean Water Act regulatesdischarges, not construction, and thatEPA is without authority to adopt aprohibition against construction in itsregulations.

EPA has carefully considered thesearguments and has decided to rescindthe ban. In contrast to other federalregulatory statutes (such as the AtomicEnergy Act, 42 U.S.C. 2011 et seq.), theClean Water Act does not regulateconstruction of facilities, onlydischarges from them. See Section 301.Accordingly, if an applicant beganconstruction in defiance of EPA's ban,the enforcement remedies under Section309 of the Clean Water Act would notapply.

EPA therefore proposes to suspendthis provision pending final Agencyaction on the proposal to eliminate the."construction ban". For a more detailedexplanation of this decision, refer to theFederal Register notice proposingdeletion of this provision foundelsewhere in today's publication.

Executive Order 12291

Under Executive Order 12291, EPAmust judge whether a regulation is majorand therefore subject to the requirementof a Regulatory Impact Analysis. Theseproposed suspensions make theregulations more flexible and lessburdensome for affected permittees.They do not satisfy any of the criteriaspecified in section 1(b) of the ExecutiveOrder and, as such, do not constitutemajor rulemakings. This regulation wassubmitted to the Office of Managementand Budget (OMB) for review.

Paperwork Reduction Act

In accordance with the PaperworkReduction Act of 1980, 44 U.S.C. 3501 etseq., EPA must submit a copy of anyproposed rule which contains acollection of information requirement tothe Director of OMB for review andapproval. These amendments contain nonew information collection requests butrather propose to suspend existinginformation collection requests.Therefore the Paperwork Reduction Actis not applicable.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5U.S.C. 601 et seq., EPA is required toprepare a Regulatory FlexibilityAnalysis to assess the impact of rules onsmall entities. No regulatory flexibilityanalysis is required, however, where thehead of the agency certifies that the rulewill not have a significant economicimpact on a substantial number of

52095




entities. Today's proposed suspensionswould make the regulations moreflexible and less burdensome for allpermittees. Accordingly, I herebycertify, pursuant to 4.U.S.C. 605(b), thatthese amendments will not have asignificant impact on a substantialnumber of small entities.

List of Subjects in 40 CFR Part 122

Administrative practice andprocedures. Air pollution control,Hazardous materials, Reporting andrecordkeeping requirements, Wastetreatment and disposal, Water pollutioncontrol, Water supply, Confidentialbusiness information.

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

Dated: November 8 1982.Anne M. Gorsuch,Administrator.

PART 122-[AMENDED]

The following regulations and, whereappropriate, corresponding permit ,application provisions are proposed tobe suspended:

1. Section 122.15(a)(5)(ix).2. Section 122.62(e)(1)(ii).3. Section 122.66(c)(4) and (c)(5).4. For all NPDES existing

manufacturing, commercial, mining andsilvicultural dischargers, the

requirements of § 122.53 (d)(9) and(d)(1O) (Item VI of consolidated permitapplication form 2c, EPA Form 3510-2c).

5. For NPDES point source stormwater discharges under 40 CFR 122.57that are (a) subject to specific effluentguidelines of toxic pollutant effluentstandards, (b) designated as significantcontributors of pollution, or (c) locatedat industrial facilities in areasimmediately adjacent to the industrialplant or in plant associated areas, ifthere is a potential for significantdischarge of storm water contaminatedby contact with raw materials, processwastes, toxic pollutants, or hazardoussubstances listed in Table V ofAppendix D to 40 CFR Part 122, therequirements of § 122.53(d)(7)(iii), andcorresponding Items V-B and V-C ofconsolidated permit application form 2c(EPA Form 3510-2c), that quantitativedata be reported.

6. For all other NPDES point sourcestorm water discharges required to bepermitted under § 122.57, therequirements of § 122.4(d)(7) (Item XI ofthe consolidated permit application formI (EPA Form 3510-1)], and § 122.53(d)(2), (d)(5), (d)(6), (d)(7), (d)(9), (d)(lO),(d)(11) and (d)(12) and correspondingItems H-A, III, IV, V (all subparts), VI,VII, and VIII of consolidated permitapplication form 2c (EPA Form 3510-2c).[FR Doc. 82-31297 Flted 11-17-82; 8:45 am!

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