This information is reproduced with permission from ...September 12, 1979. Public hearings to...

Federal Register / Vol. 44, No. 116 / Thursday, June 14, 1979 / Proposed Rules

ENVIRONMENTAL PROTECTIONAGENCY

[40 CFR Parts 122, 123, 124]

[FRL 1225-1]

Consolidated Permit Regulations:RCRA Hazardous Waste, SDWAUnderground Injection Control; CAAPrevention of SignificantDeterioration; CWA National PollutantDischarge Elimination System; andSection 404 Dredge or Fill ProgramsAGENCY: Environmental ProtectionAgency.ACTION: Proposed rule.

SUMMARY: This rule establishesconsolidated permit programrequirements governing the HazardousWaste Management program under theResource Conservation and RecoveryAct (RCRA), the Underground InjectionControl (UIC) permit program under theSafe Drinking Water Act (SDWA), theNational Pollutant DischargeElimination System (NPDES) under theClean Water Act {CWA), and thePrevention of Significant Deterioration(PSD) program under the Clean Air Act,for three primary purposes:

(1) To consolidate programrequirements for the RCRA and SDWAprograms with those already establishedfor the NPDES program.. (2) To establish, for the first time,requirements for State programs underthe RCRA, UIC and Section 404programs.

(3) To consolidate permit issuance"procedures for EPA-issued Prevention ofSignificant Deterioration permits underthe Clean Air Act with those for theRCRA, UIC, NPDES and State 404

.programs.DATES: Comments must be received bySeptember 12, 1979.

Public hearings to discuss and toreceive comments on the proposedConsolidated Permit regulations, theproposed Underground Injection Controlregulations (proposed at 44 FR 23738,April 20, 1979] under the Safe DrinkingWater Act, and on the ConsolidatedPermit Application Forms, will be heldin four cities, over three days in eachcity. The meetings are scheduled for thefollowing places:

July 16, 17 *, 18, 1979, Dallas, Texas.July 23, Z4 *, 25, 1979, Washington, DC.July 26 *, 27, 28, 1979, Chicago, Illinois.July 30, 31 *, August 1, 1979, Seattle,

Washington.ADDRESSES: Interested persons mhyparticipate in this proposed rulemaking

Day and evening sessions.

by submitting comments to Edward A.Kramer (A-2) Permits Division (EN-336),Office of Water Enforcement,Environmental Protection Agency, 401 MStreet, S.W., Washington, D.C. 20460.Due to the length and complexity of theregulations, all comments should beorganized by page and section number.Because a number of program officeswill be involved in the review ofcomments received, EPA requests thatfour copies of comments be submitted.A copy of all comments received will beavailable for review during normalbusiness hours at the EnvironmentalProtection Agency, Public InformationReference Unit Room 2922,401 MStreet, SW, Washington, DC 20460."

Four public hearings have beenscheduled at the following locations:

July 16, 17 *, '18, 1979, Northpark Inn,9300 North Central Expressway, Dallas,Texas.

July 23, 24 *, 25, 1979, HEWAuditorium. 330 Independence Avenue,S.W., Washington, DC.

July 26 *, 27, 28,1979, Water TowerHyatt, 800 North Michigan Avenue,Chicago, Illinois.

-July 30, 31 *, August 1, 1979,oEPA-Region X, 1200 6th Avenue, Seattle,Washingtoin.

The format for each of the hearingswill be the same. Each day in a serieswill be devoted to a separate subject-Day I will cover the proposed Part 146UIC technical'regulations, Day 2 andDay 3 will cover the proposedconsolidated regulations, the applicationform, and proposed changes to theNPDES permit program regulations onapplication requirements. The eveningsession will cover all subjects.Following registration there will be ashort presentation by EPA officialsconcerning the topic of that day'shearings, an opportunity for anyone inthe audience to make a statement, and aquestion and answer session.

A court reporter will be present ateach of the public hearings. Officialtranscripts will be available at cost.

Anyone requesting an evening sessionor wishing to make an oral statement atthe.Consolidated Permit Regulationsand Application Form hearings shouldnotify in writing, specifying the hearingand the city in which they areinterested: Ms. Judith Shaffer, PermitsDivision (EN-336), U.S. EnvironmentalProtection Agency, 401 M Street, SW,Washington, D.C. 20460.

Anyone wishing to make an oralstatement at the hearings on the UICregulations should notify in writing,specifying the hearing and the city inwhich they wish to make the statement:Ms. Sharon Gascon, Office of Drinking

Water (WH-550), U.S. EnvironmentalProtection Agency, 401 M Street, SW,Washington, D.C. 20450.

Pamphlets describing the proposedregulations and their impact on thevarious programs are available from theEnvironmental Protection Agency,Public Information Center (PM-215), 401M St., SW, Washington, DC 20460.Please order by title and code.

e A Guide to New Regulations forNPDES (C-1).

* A Guide to the UndergroundInjection Control Program (C-2).

* A Guide to Consolidated PermitPrograms (C--3).

* A Guide for States on ConsolidatedPermit Programs (C-4).

* A Guide to the Hazardous WasteManagement Program (C-5).

* A Guide to the Dredge or Fill PermitProgram (C-6).

* A Guide to the Consolidated PermitApplication Form (C-7):FOR FURTHER INFORMATION CONTACT:.Edward A. Kramer (A-2), Office ofWater Enforcement (EN-336), U.S.Environmental Protection Agency,Washington, D.C. 20460, (202) 755-0750.SUPPLEMENTARY INFORMATION:

Background

The proposed'rules integrate programdescriptions, State programrequirements and procedures fordecision-making for four EPA regulatoryprograms: (1) the Hazaxdous WasteManagement Program established underthe Resource Conservation andRecovery Act (RCRA), (2) theUnderground Injection Control (UIC)Program established under the SafeDrinking Water Act (SDWA), and (3) theNational Pollutant Discharge.Elimination System (NPDES) and 404(Dredge or Fill) program establishedunder the Clean Water Act (CWA). Alsoconsolidated are permit Issuanceprocedures for EPA-issued Prevention ofSignificant deterioration (PSD) permitsunder the clean Air Act. (CAA),

These proposed regulations are animportant element of an Agency-wideeffort to consolidate and make uniformprocedures and requirements appliqableto EPA and State-administeredprograms.

Work began in the early Fall of 1978to consolidate permit programregulations for one existing program-the National Pollutant DischargeElimination System (NPDES) under theClean Water Act, and two newprograms-the Hazardous WasteManagement program under theResource Conservation and RecoveryAct (RCRA) and the Underground

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Injection Control (UICI program underthe Safe Drinling Water Act. Stateprogram requirements under the section404 Dredge or Fill program of the CleanWater Act were also included. InOctober of 1978, the Administratorestablished a Permits ConsolidationTask Force to examine the benefits,costs and possible extent and range ofpermit consolidation that could beundertaken by EPA. The Task Forcecompleted its examination andconcluded in its Report to theAdministrator that consolidation ofpermit activities could result insignificant benefits for the environment,

-the regulated public and EPA. One ofthe Task Force recommendations to theAdministrator was the continuation ofdevelopment of consolidated permitprogram regulations, particularlyprocedural regulations, for the RCRAhazardous waste mbnagement, UIC,NPDEs and 404 programs. The TaskForce also recommended thatprocedures for issuance of Air PSDpermits should be the same as those forthe four above programs, whereprocedural requirements are shared.

These proposed regulations are thefirst step in EPA's effort to consolidatepermit programs. The proposal focuseson consistency and unification, to theextent possible, between RCRA, UIC,and NPDES program definitions anddescriptions, State programrequirements and permit issuanceprocedures. The proposed regulationsalso consolidate State programrequirements under section 404 of CWA(permits for discharges of dredged or fillmaterial), and EPA permit issuanceprocedures for Air PSD program.-Draft consolidated application forms

are published with these proposedregulations, so as to enable a morecomplete review of EPA's PermitsConsolidated efforts. The Agency alsointends to move in the direction ofissuing a single consolidated permit fora facility that requires multiple EPApermits, which would cover all EPA -permit requirements for the facility.

As the first expression of this process,the Agency has developed a single formfor applying for permits under theConsolidated Permit regulations. Thisform appears as a notice for publiccomment in a separate part of today'sFederal Register. The ConsolidatedApplication form consists of a singlepart to collect general'fnformation fromall applicants, followed by separateprogram-specific parts which collectinformation needed to issue permitsunder each program. Today's noticeincludes the general information partand parts for hazardous waste permits

under RCRA and for certain waterdischarges under NPDES. The parts forthe other permit programs will bedeveloped in the near future, and will beincorporated into the consolidatedapplication form when they are ready.

A set of NPDES regulations is alsobeing proposed today as part of theConsolidated Application form package.These proposed NPDES regulations,which are closely tied to the proposedapplication form, are numbered tocorrespond with the ConsolidatedPermit regulations and the two shouldbe read together. The preamble to theproposed conforming regulationscontains a detailed discussion of thenew NPDES application formrequirements and their place in theentire NPDES permitting process.

Although nothing in these regulationswould require States to undertake areorganization of environmentalpermitting functions, EPA encouragesStates to begin or continue effortstoward "one-stop" permitting, or otherforms of permit program consolidation.

The Agency anticipates a number ofbenefits to the environment theregulated community. the general public,and its own institutional efficiency inthe Permits Consolidation effort-

* EnvironmentalBenefits:Consolidation of procedures, regulationsand permit review functions shouldresult in more comprehensivemanagement and control of wastes orresiduals, and elimination of gaps inmanaging these wastes.

. RegulatoryBurden Reductio'Theuse of uniform procedures and programrequirements among EPA permitprograms should result in moreconsistent and predictable requirementsfor the regulated community, and shouldreduce the costs of complying withmultiple program requirements. The useof common program regulations, andfuture use of a single application formfor EPA-issued permits should reduce.the paperwork and increase efficiency inprocessing permits.

* Institutional Benefits: The Agencyhas already experienced greatercoordination, sharing of information,and resolution of inconsistencies andoverlaps among the various programsduring the development of theseproposed regulations. By October, 1979,the Agnecy will be establishingcentralized permit-writing units in theRegions.

• Public Participation Benefits:Procedures and opportunities for publicparticipation in permit programdecisions and in State programapprovals will became more uniformand predictable under these regulations.

This should facilitate publicinvolvement in the implementation ofthe RCRA. UM0 NPDES and 404programs.

e Resource Benefits: EPA expects thatconsolidation of permit programs shouldresult i some reduction in overallAgency permitting resource needs overthe next few 'ears, measured againstwhat the expanding scope of EPA permitprograms would otherwise require,particularly as implementation of theRCRA and ULICprograms begins and the'consolidated application form is utilized.If States adopt similar approaches,resource benefits could also be felt atthe State level.

Organization of Proposed Regulations

The proposed regulations will revise40 CFR 122.123 and 124, presently usedfor NPDES program regulations. TheseParts of the Code of Federal Regulationsare being used because they alreadyprovide the skeleton for organizingpermit regulations, namely:

Part 122-Program Descriptions.Part 123-State Program

Requirements.Part 124-Procedures for Decision-

making.To structure the proposed regulations

in an understandable format, parts 122,123 and 124 have been organized intoSubparts. Subpart A of each Part appliesto each permit program included in thatPart. Subsequent Subparts set forthprogram-specific requirements for theindividual programs. -

Although the Agencyhas attempted tounify and consolidate these proposedregulations, statutory and programmaticconsiderations preclude completeuniformity. Thus, to review theregulations for a particular program, onemust read both the general subpart plisthe applicable specific subpart

In adopting the proposed format, theAgency considered various alternativeformats for combining requirements forthe covered programs. The Agencysolicits comments on the proposedformat and any alternative approaches.

The Agency recognizes that theseregulations are long and complicated.However, if each program were topublish separate regulations, they wouldbe approximately 40 percent larger intotal. This savings has resulted from theformulation of'generally applicablerequirements for all programs.

Summary of Proposed Regulations

Proposed Part 122--Establishesprogram definitions and basic progmrequirements for the RCRA UI, NPDESand 404 programs. Part 122 also providescertain requirements for State programs,

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to the extent Part 123 explicitlyreferences Part 122 requirements. ThisPart spells out in detail who must applyfor a permii; what terms, conditions andschedules of compliance must beincorporated into permits; when andhow monitoring and reporting of permitcompliance must be performed; whenpermits may be revised or reissued; andother requirements.Proposed Part 123---Establishes therequirements for State programs. Eachof the programs described in Part 122may be administered by any State, inlieu of EPA, that has received theapproval of the Administrator. Indddition of the hazardous waste, UICand NPDES programs, Part 123 governs .State section 404 permit programs fordischarges of dredged or fill material.After receiving the approval of theAdministrator a State may issue section404 permits, in lieu of the United StatesArmy Corps of Engineers, in so called"Phase II and n" waters (sometimesreferred to as traditionally ion-navigable waters). In addition, Part 123contains the procedures for Stateprogram approval, revision andwithdrawal.

Proposed Part 124-Establishes theprocedures to be followed in makingpermit decisions under the RCRAhazardous waste, UIC, PSD and NPDESpermit programs, including proceduresto enable public participation in permitdecisions, consultation with State andFederal agencies, procedures forconsolidated review and issuance oftwo or more permits to the same facilityor activity, and mechanisms for appealfrom permit aecisions. Mostrequirements in Part 124 are onlyapplicable where EPA is the permit-issuing authority. Part 123 requiresStates to comply with some of the Part124 provisions, such as the publicparticipation aspects of permit issuance.

Relationships Between Programs

The programs covered in these "regulations overlap one another in twodifferent ways. The first type of overlapoccurs where different activitiesassociated with a single source requirepermits under two or more of the.programs covered by these regulations.For example, a facility may storehazardous waste in surface facilities,inject some of its waste into the ground,and have a discharge of other waste intosurface waters. The basic reason forproposing these consolidatedregulations is to assure that permitdecisions are consistent, and that theproceduies for permit issuance areefficient and coherent.

The second type of overlap occurswhere the same activity is regulatedunder two or more of the statutesauthorizing these regulations. Forexample, disposal of hazardous wasteby well injection must have a permitunder section 3005(a) of RCRA, a permitunder section 1421(b) of SDWA and, iflocated in a State with an approvedNPDES program, a permit under section402(b)(1)(D) of the CWA. The followingis a discussion of the approaches theAgency is proposing in this second area:

UIC/NPDES-Under section402(b)(1)(D) of the CWA approved StateNPDES programs are required to"control the disposal of pollutants intowells." The UIC program, likewise,requires States to establish programs forcontrolling well injections. EPA believesthat these two requirements arecomplementary and that a single permitissued by a State'to a well injector cansatisfy the requirements of both acts.

Although EPA has required NPDESStates to demonstrate the legal authorityto issue permits for well disposal, it hasnever specified how States shouldexercise this authority. No technicalrequirements have been establishedunder the NPDES program for welldisposal; States are merely required toexercise their authority "to protect thepublic health and welfare and to preventthe pollution of ground and surfacewaters." EPA believes that the legalauthority possessed by NPDES Statescan serve as the nucleus fordevelopment of State UIC programs.Therefore, in many instances, theseStates will be able to develop UICprograms without any further action bytheir State legislatures. Once a Statedevelops regulations and other programcomponents in accordance with UICregulations under Part 146 (proposed at44 FR 2378 (April 20,1979)), and receivesthe approval of the Administrator underPart 123, a State-issuedpermit for wellinjection should satisfy both CWA andSDWA requirements.

LUI/RCRA-The UIC program -imposes requirements on all wellinjection, while the hazardous wasteprogram under RCRA imposesrequirements on treatment, storage anddisposal of hazardous waste. Whenmaterials which are hazardous wastesfor purposes of the RCRA program areinjected i'to a well, that well fallswithin the definition of a HazardousWaste Management Facility (HWM)facility and, consequently, is subject toregulation under both programs.

To avoid any possible duplication andinconsistency in regulation, EPA -proposes to regulate hazardous wasteinjection wells under the UIC program

because it is specifically orientedtoward underground injection as atechnique of disposal. EPA believes thatthe degree of environmental protectionafforded by the UIC regulations meetsthe requirements of RCRA. EPA hastaken several actions to assure thathazardous waste is adequately coveredunder the UIC program. In cases wherea site has both an injection well andsurface facilites that treat, store ordispose of hazardous wastes, thesurface facilities will be subject to ahazardous waste management programpermit. The appropriate RCRArequirements will be applied throughthat mechanism. In cases where a wellreceives wastes accompanied by amanifest, the UIC controls will applyexclusively. Those controls, however,will incorporate the RCRA requirementsfor notification, manifest, recordkeepingand reporting.

However, any pits, ponds, lagoons,storage tanks or other surface facilitiesassociated with an injection well thatare used to treat of store hazardouswaste are still required to obtain aRCRA permit. For further discussion ofthis approach, see the preamble toSubpart B of Part 122 of theseregulations.

Another particular concern of theAgency was that the imposition ofcontrols over hazardous waste underRCRA might make underground disposalof such waste more economicallyattractive in States that were not yetlisted as requiring a UIC program. Underthe UIC program, State programrequirements are only triggered once aState has been liste~by EPA. EPA hastherefore decided to implement UICcontrols over well injections on thesame schedule as the RCRA hazardouswaste pr6gram All the remainingunlisted States will be listed by May of1980 as needing a UIC program.

The UIC Program also proposes to banall Class IV wells (i.e., wells owned oroperated by generators of hazardouswastes or by hazardous wastemanagement facilities that inject into orabove underground sources of drinkingwater). Since the operators of thesewells are subject to RCRA requirements,they will have to notify EPA undersection 3010 of RCRA. The initialinventory of Class IV wells will bedeveloped through the notificationprocess under RCRA.. NPDES/RCRA-Publicly owned

treatment works(POTW) which receivewastes defined as hazardous under theRCRA program are also point sourcessubject to the NPDES permit program ofsecion 402 of the CWA. This creates thepossibility of duplicative regulation of

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tke same activity. Ta a= efrrt to avoidthis resvlt, EPA is proposing a "permitby rule" under the RCRA program forpublicly owned treatmet works(POTW) which receves hazardouswastes and are regulated by the NPDESprogram. Under this proposal POTW'swould be "deemed to have a permif' forpurposes of RCRA if the facility has anNPDES permit and if it adheres to thenotification requirements of section 3010of RCRA, as well as the manifest,recordkeeping and reportingrequirements of 40 CFR Part 250 undersections 3001-3004 of RCRA. EPAbelieves that this approachaccomplishes the protective goals ofRCRA in a way which eliminates muchof the administrative burden whichparallel regulation would cause. Forfurther discussion of this approach, seethe preamble to Subpart B of Part 122.

Applicability of NEPA to theConsolidated Permit Programs

With the exception of EPA-issuedpermits for new sources, none of thepermitting requirenents under theseregulations is subject to requirements ofthe National Environmental Policy Act(NEPA), 43 U.S.C. section 4332(2)(E).NPDES permits, other than for newsources as defined in section 306 ofCWA, are removed from NEPA by theterms of section 511(c] of CWA. Thatsection expressly exempts from NEPA

- requirements all actions taken by theAdministrator pursuant to CWA, exceptissuance of permits to new sources andconstruction grants for publicly ownedtreatment works. PSD permits under theCAA are similarly exempted by statutefrom NEPA. See Energy Supply andEnvironmental Coordination Act of 1974,section 4(c)(1), 15 U.S.C. 793(c)(1).

EPA permits for hazardous wastefacilities under RCRA are also notsubject to the formal requirements ofNEPA. The courts have recognized thatFederal regulatory action taken by anagency with recognized environmentalexpertise, when circumscribed byextensive procedures, including publicparticipation for evaluationenvironmental issues, constitutes thefunctional equivalent of NEPA'srequirements. See PortlandCementAssoc. v. Ruckelshaus, 486 F.2d 375(D.C. Cir 1973J, cert. den., 417 U.S. 921(1974); Maryland v. Train, 415 F. Supp.166, 122 (D. MD. 1976). EPA hasdetermined that the proceduresregarding EPA's issuance of RCRApermits clearly satisfy that standard.

The Agency also anticipates that thefunctional equivalence principle willapply to EPA-issued UIC permits, and

hsat such permits are similarly exemptfrom formal NEPA requirements.

Finally, NEPA requirements do notapply to State-issued permits.Chesapeake Bay Foundation, Incr v.United States, 453 F. Supp. 122 (E.D. Va.1978).

The Agency believes that theproposed regulations will have apositive environmental Impact byproviding more comprehensiveenvironmental review of facilities whichrequire EPA permits under the NPDES,PSD, RCRA or UIC permit programs,particularly where two or more of thesepermits may be required for the samefacility or activity. We believe that thepossible transfer of various programs toState responsibility will not affect thestringency of program administration.The State programs must meet FederalStandards in order to receive Federalapproval, and they will be subject toFederal oversight While transfer ofaspects of the 404 program to the Stateswill eliminate the NEPA requirement forsome 404 permits, it Is unclear whetherthis transfer will lead to narrowedenvironmental review of the subjectactivities, since States are free to adopta more stringent approach to regulationand many States have their own EIS-_type requirements.

Previous Publication of Regulations forRCRA, UIC, and NPDES Programs

Portions of these proposed regulationshave appeared previously in the FederalRegister in either proposed or final form.Comments on any prior proposal willnot automatically be considered part ofthe record of this proposal. Commentersshould resubmit such comments as -comments on this proposal if they wantto make sure that EPA will considerthem.

RCRA ogram: Under the RCRAprogram, Guidelines for StateHazardous Waste Programs wereproposed as Part IV of the February 1,1978, Federal Register (43 FR 4366).These consolidated regulations containchanges which reflect comments on theFebruary 1978, proposed guidelines.Because the consolidated regulationsmay surface issues on which the publichas not had a chance to comment, theconsolidated regulations are areproposal of the RCRA Section 3006guidelines.

UICProgram: Regulations for the UICprogram were originally proposed onAugust 31,1976, as 40 CFR Part 146. Inresponse to numerous public comments,EPA has made significant changes in theregulations and has reproposed them forfurther public comment. (See 44 FR23738 (April 20,1979)). Many elements of

the UIC program are now beingproposed for inclusion in Parts 122, 123and 124, while thelechnical criteria andstandards by which the Director of anEPA or State-administered UIC progrmakes decisions continue to remain iLPart 14.

APDES Program: Subparts D of theproposed Parts 122 and 123. andSubparts D. E and F of proposed Part124 are virtually identical to each of thecontents of the NPDES Parts 122-124which were recently promulgated. TheseNPDES regulations were made finalafter a comment period of 90 daysduring which over 500 comments werereceived. The comments were Mullyconsidered by the Agency, and the finalNPDES regulations now occupy Parts122-124. The consolidated permitprogram regulations, when finallypromulgated, will incorporate and takethe place of the final NPDES regulationsin Parts 122-124. There are some minorchanges to the Final NPDES regulationswhich occurred in the process ofgeneralizing requirements for allprograms in Subpart A. In addition.there are several new provisionsapplicable to the NPDES program, suchas procedures for the withdrawal ofState programs under Part 123, and newpermit modification and confidentialityof information provisions under Part 122.These changes are highlighted in thispreamble discussion.Technical Requirements for RCRA, UIC,and NPDES Programs

Technical requirements and criteriawhich apply to decision-making underthese three programs have beendeveloped separately from Parts 122-124. These regulations set the standardsfor the actual contents of permits underthe three programs and provide some ofthe technical bases for determining theadequacy of State programs andindividual permit decisions.

RCRA Program: For.the RCRA permitprogram, Parts 122-124 should be read,where appropriate, in conjunction withtechnical standards proposed under 40CFR Part 250 on December 18, 1978, (43FR 58946-59028) under sections 300r,3002 and 3004 of RCRA prescribing (1)criteria for identifying and listinghazardous wastes, identificationmethods, and a hazardous waste list, (2)standards for generators of such wastefor recordkeeping, labeling;containerizing and using a manifest, and(3) performance standards for hazardouswaste management facilities includinghuman health and environmentalprotection levels and design andoperating standards as well asrecordkeeping, monitoring, reporting,

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contingency plans and training andfinancial responsibility requirements.These proposals together with thoseunder section 3003, (April 28, 1978, FR18500-18512), section 3005 (40 CRF Parts122 and 124), section 3006 (40 CFR Part123), section 3008 (August 4, 1978, FR34738-34747), and section 3010 (uly 11,1978, FR 29908-29916]of RCRA and thatof the Department of Transportation(May 25,1978, FR,22626-22634] underthe Hazardous Materials TransportationAct constitute the hazardous wasteregulatory program under subtitle C ofRCRA.

UIC Program: Technical criteria andstandards for .Underground InjectionControl Programs under the SDWA wereproposed as 40CFR Part 140, on April20, 1979 (44 FR 23738).

NPDES Program: NPDES criteria fordecision-making will be located in 40CFR Part 125, which was recentlypromulgated. In addition, effluentguidelines used in setting permit effluentlimitations are located in 40 CFRSubchapter N.

404 Program: Interim final guilelinesdetailing the environmental concerns tobe considered in evaluation of section404 Permit applications (i.e., the section404(b)(1) gidelines'are set forth in 40CFR Part 230; however revisedguidelines will soon be proposed toamend Part 230. Procedures under-section 404(c) for use of EPA's authorityto prohibit or restrict disposal sites bredetailed in 40 CFR Part 231 andregulations covering activities undersection 208(b)(4) of CWA will be in 40CFR Part 130..

Part 122

What does this Part do?

Subpart A of Part 122 provides bothgeneral and program-specific definitionsfor the EPA administration of RCRAhazardous waste, SDWA undergroundinjection control; and CWA NPDESprograms. In addition, all Subparts ofPart 122 describe basic programelements for the three programs,including application requirements,standard permit conditions, permitteemonitoring and reporting requirementsand other requirements. Both the generalSubpart (A) and the appropriateindividual Subpart (B-D) must beconsulted fora full description of anyprogram.

Certain of these requirements aremade applicable, as indicated in Part123, to State programs which operate inlieu of EPA programs after receivingEPA approval. In the case of section 404,State programs operate in lieu of the

Corps of Engineers-program in so-called"Phase II and Ill" waters.

Subpart AThe major elements of Part 122;

SubpartA-are:Program definitions (§ 122.3).

Definitions for the RCRA, UIC, NPDESand 404 programs are set forth in § 122.3.Definitions applicable to. all programsappear under "General Definitions," andthose applicable only to a particularpermil program are set forth separately.

Wherever possible, commondefinitions have been provided for thefour programs. In some cases, wheredifferent definitions must be employeddue to the differing statutofyrequirements, differences betweendefinitions for two or more programs arehighlighted. For instance, the definitionsof "State" and "person" under the threeActs are necessarilydifferent and arehighlighted in § 122.3(a).

Both the RCRAand UIC programspropose to use a similar definition of"underground sources of drinking,water" or "underground drinking watersource" (USDW). Any aquifer or itsportion quialifies as an USDW if:

(1) It is currhntly in use as a source ofdrinking water,

(2) It produces water with fewer than10,000 mg.1 of total dissolved solids(TDS); or

(3) It is designated as an USDW bythe Administrator or State (asappropriate).

Under the UIC program, however,flexibility is granted in the applicationof the definition to recognize thosesituations where the aquifer or itsp&rtion may technically meet thedefinition but in fact has no realpotential to serve as a drinking watersource. Therefore, in those instanceswhere the aquifer or its portion does notcurrently and Will not in the future serveas a source of drinking water, it neednot be designated if:

(i) It is mineral, oil or geothermalenergy producing;

(ii) It is situated at a depth ox locationwhich makes recovery of water fordrinking water purposes economicallyor technologically impractical; or

(ill) It is so contaminated that it wouldbe economically or technologicallyimpractical to render the water fit forhuman consumption. t

To balance the flexibility provided,the UIC program will require the

- designations of USDW's to be madeafter public hearing and subject toapproval by the Administrator.

The RCRA program does not proposea similar degree offlexibility in theapplication of the definition. It is the

Agency's judgment that wherehazardous wastes are concerned, astricter level of protection Is prudent.Since little discretion is available, theHWM program also does not propose torequire public hearings or review by theAdministrator.

Both the NPDES and section 404programs employ the concepts 'of bestmanagement practices (BMP's) andgeneral permits. Because of thedifferences in the regulatory programs,differing definitions are applicable tothese concepts (no definition of "generalpermit" is given for purposes of NPDESalthough EPA is considering formulatingone). The public is invited to commenton whether it is appropriate to developunified definitions for these concepts.

Signatories- to permit program forms(§ 122.5). These regulations require thatpermit applications, except those forClass II wells under the UIC program,must be signed by a principal executiveofficer of at least the level of vice-president or equivalent official forpartnerships or public facilities. Permitapplications for Class II wells, reportsrequired under Part 122, and certainrequests for information forms may besigned by a duly authorizedrepresentative. Applications for permitsfor Class II wells under the UndergroundInjection Control program aredistinguished from other applicationsdue to the large numbers of small andphysically dispersed Class II wellsassociated with oil and gas operationsinvolving the injection of fluids. Allsignatories for permit program formsmust represent that they have madesufficient inquiries to certify the truth ofany'statements made In the forms.

Duration of Permits; Continuation ofExpiring Permits; Transferability ofPermits (§ 122.8). This sectionestablishes requirements fortheduration of RCRA, UIC, 404 and NPDESpermits, the continuation of expiringEPA-issued permits, and requirementsthat must be met by permittees whotransfer ownership of their facilities.

NPDES and section 404 permits arerequired under the Clean Water Act tohave fixed terms not to exceed fiveyears. Neither RCRA nor the SDWAestablish specific permit terms forhazardous waste or undergroundinjection control permits. Section 122.8proposes that RCRA and UIC permitsmay be issued with terms up to the lifeof the permitted facility. A'lifetimepermit was selected for these facilitiesso as to enable them to obtain morefavorable financing, to avoid continuousfacility siting problems and to savepaperwork burdens on EPA or Statepermit writers. NPDES and 404 permits

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will continue to be issued for terms thatdo not exceed five ,ears. However, toinsure a regular review of permitsparticularly where a RCRA, UIC, or 404permit is fssued to a facility or activitythat requires an NPDES permit, review6f each permit issued for a given facilityor activity is required each time anotherpermit for the same facility is modified,reissued or terminated. This review willthus coincide with the NPDESreissuance cycle and will be conductedfor purposes of considering whethermodification or revocation andreissuance of any other permit(s) iswarranted. These proposed periodicreviews are mandatory on both EPA andapproved States.

After reviewing a permit, a decisionwhether or not to modify the permit willbe made by the EPA RegionalAdministrator or the State Director.Reasons for modifying a permit wouldinclude new information about humanhealth or environmental risks, changesin the national standards, and changesin the type or volume of hazardouswaste(s), injected fluids or pollutants.Facility siting will not be considered atthe time of permit modification unlessnew information or standards indicate athreat to human health or theenvironment exists which was unknownat the time of permit issuance or unlessnew data has been developed since thetime the permit was granted.

Regardless of whether another permitexpires or is modified or terminated,review of single UIC or RCRA permitsfor a given facility is required in anyevent at least every five years and uponpublic request where information issubmitted which indicates that groundsfor permif modification exist.

The Agency solicits public commenton this approach to ensurecomprehensive, regular review ofpermits. In particular, the Agencysolicits comment on an alternative thatwas considered and rejected during thedevelopment of these regulations. Underthis alternative, where multiple permitsare required for a single activity orfacility, all permits would be set toexpire at the same time. Where only asingle permit under any program isrequired it would be subject to reviewand reissuance at the time that anadditional permit under anotherprogram is required in the future. Thisoption would assure that acomprehensive review of the permit(s)from the standpoint of all programs isaccomplished concurrently and on aregular basis. It would insure regularreview of multiple permit and publicparticipation during the issuance/reissuance prociss because of the built-

in expiration and reissuance of permits.In addition, this option would enablecontinuing EPA review of State-issuedpermits for the same facility or activity,if the requirement were made applicableto States.

Review and Afodification orRevocation and Reissuance of Permits.Section 122.9 covers both modificationand revocation and reissuance ofpermits. These are alternative means ofaccomplishing very similar results.Either action can be chosen by the StateDirector or the Regional Administratoras a means of changing the terms of apermit, if cause exists under § 122.9(e).

- In general, however, the Director wouldchoose to revoke an existing permit andreissue a new permit when permit termsand conditions are to be extensivelychanged, or where the remaining term ofthe existing permit is short and it wouldbe to the advantage of the permittee toobtain a new permit with a longer term.This latter situation will involveprimarily the shorter term NPDES and404 permits,.since most, if not all. UICand RCRA permits will be set for the lifeof the facility. Additional program-specific provisions for modification ofNPDES permits are contained in SubpartD. Most modifications under this sectionrequire compliance with §§ 124.5 and124.7, which require the issuance of adraft permit for permit modifications,thus initiating the public review processunder Part 124. Such modifications areprocessed in the same manner aspermits, except that public comment issought only on the propodedmodifications. However, certain minormodifications under § 122.9(g) do notrequird compliance with § 124.5, unlessthe modifications would render thepermit less stringent or unless contestedby the permittee. These minormodifications take effect immediatelywhen issued, and do not require thepreparation of a draft permit or publicnotice and comment. In addition.Section 404 permit modifications will beprocessed according to procedures setforth in Part 123, Subpart E.

Termination ofpermits. Section 122.10specifies conditions under whichpermits will be terminated for cause bythe permitting authority. Whilerevocation and reissuance is amechanism for changing permit termsand conditions in light of changedconditions, termination Is essentially anenforcement mechanism. The term"termination", as it is used in Part 122,includes permit suspension orrevocation under section 3008 of RCRA.Procedures for termination of RCRApermits are provided in40 CFR Part 22(proposed 43 FR 34738 (August 4,1978)).

Conditions applicable to all permits(§ 122.11). Section 122.11 specifissgeneral conditions applicable to allpermits under the RCRA, UIC, NPDESand 404 programs. Additional specificconditions are also included in SubpartsB--D, unique to the individual permitprograms.

Schedules of Compliance. Section122.12 specifies requirements forschedules of compliance leading toexpeditious compliance with programrequirements. For NPDES permits, theseschedules of compliance lead thepermittee to compliance with the CWA'sstatutory treatment deadlinerequirements, as well as other programrequirements. For permits under theRCRA, UIC and 404 programs, schedulesof compliance will be used to settimetables for expeditious compliancewith program requirements. Theseschedules are required, under proposed§ 122.12(a), to set interim compliancedates where the total schedules exceednine months. Permittees are required toprovide written notice to the Director ofthe permittee's compliance ornoncompliance with interim or finalrequirements. For most EPA-issuedpermits this notice must be providedwithin 14 days of each interim or finaldate. However, UIC permits issued byEPA will require such notice within 30days. This variation in the noticerequirements for UIC permits resultsfrom an effort to make the UIC programrequirements in these proposedregulations consistent with those thatwere proposed as Part 146 on April 20,1979 (44 ]R 23738). However, EPArequests comments on the mostappropriate time for providing suchnotice, and whether the noticerequirements for all programs should bethe same.

In addition, proposed § 122.12 allowsapproved State programs to choosedifferent intervals for interimcompliance dates, and up to 30 days forproviding written notice following aninterim or final compliance date.Comments on this approach are alsosolicited.

Section 122.12 also provides for twoalternate schedules of compliance incases where an EPA permittee maychoose to terminate operations ratherthan meet permit requirements. Oneschedule reflects the dates for theproposed termination of operations, andthe other reflects dates for compliancewith all permit requirements. Veryspecific requirements for these alternateschedules are proposed for NPDESpermits issued by EPA, because NPDESpermits are subject to statutory deadlinerequirements under the CWA. However,

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because the UIC and RCRA programsare expected to encounter situations inwhich alternate schedules will benecessary to assist both the RegionalAdministrator and the permittee inmaking the decision to terminateoperations or meet compliance,alternate schedule provisions are alsoprovided for these programs. Commentsare solicited on the use of alternateschedules for the UIC and RCRAprograms.

Recording and Reporting ofMonitoring Results. Section 122.14establishes general requirementsapplicable to all permittees for the

, recording and reporting of monitoringresults to the permitting authority.

Noncompliance Reporting (§ 122.15).This section outlines the generalrequirements for noncompliancereporting that must be met by both EPARegional offices and approved States.Reports are required on a quarterlybasis for major permits under the threeprograms, and on an annual basis forminor permits. Additional or morespecific reporting requirements areprovided in Subparts B-D.

Confidentiality of Information(§ 122.16). This section provides forclaims of confidentiality by personssubmitting information to EPA underthese regulations. Such claims will beprocessed in accordance with theprocedures set out in 40 CFR Part 2.Paragraph (b) describes forms, ,

'documents and other materials will notbe given confidential treatment.

Relationship of Subpart A to the FinalNPDES Regulations, Part 122

Certain elements of the NPDESprogram have been modified slightly inSubpart A of Part 122, as a result of theconsolidation with the RCRA and UICprograms. Among these changes are thefollowing:

Review and Modification or Revocationand Reissuance of Permits (§ 122.9)

Under these proposed Consolidatedregulations, NPDES permits must be,reviewed to determine whether causeexists for modification or revocation andreissuance every time that'anotherpermit for the same facility or activity ismodified, revoked and reissued, orterminated, and when information ispresented to the Director indicating thatcause exists for action under § 122.9(e).The final NPDES regulations did notrequire this kind of review by theDirector. (See § 122.31 of the NPDESregulations.)

Conditions Applicable to all Permits(§ 122.11)

The standard conditions spelled out in§ 122.11 of these proposed consolidatedregulations are very similar to thosecontained in § 122.14 of the final NPDESregulations- however, in certain casesthe language has been adjusted to betterreflect all progrims. Additionalconditions in § 122.68 uniquelyapplicable to NPDES permits areidentical to their counterparts in thefinal NPDES regulations, § 122.14.

Confidentiality of Information (§ 122.16)

The confidentiality of informationsection is an expansion of provisionscontained in § 124.131 of the finalNPDES regulations (Public Access toInformation), and incorporatesreferences to the procedures of 40 CFRPart 2, for processing claims forconfidential treatment.-

Subpart B

Subpart B of Part 122 sets forthspecific requirements for HazardousWaste Management Programs tosupplement the general requirements ofSubpart A. This section will discussthose specific requiremints after a-briefdescription of EPA's overall efforts toimplement Subtitle C of RCRA,

Subtitle C of RCRA creates a "cradle-to-grave" control system for themanagement of hazardous wasteincluding appropriate monitoring,recordkeeping and reporting. Section3001 requires EPA to define criteria andmethods for identifying and listinghazardous wastes. Wastes which areidentified or listed as hazardous bythese means are then included in themanagement control system establishedunder sections 3002 through 3006 and3010. Those wastes which are notidentified or listed will be governed bythe requirements of Subtitle D of RCRAfor the management of municipal solidwaste.

Section 3002 requires EPA to definethe standards applicable to hazardouswaste generators. Section 3002 alsorequires establishment of a manifestsystem to track hazardous wastes fromtheir generation to their ultimatedispositionin a permitted treatment,storage or disposal facility.

Section 3003 requires -EPA to definestandards applicable to transporters ofhazardous wastes to insure propermanagement of hazardous wastesduring transportation. The Agency isexploring opportunities for integratingthis program with proposed and existingDepartment of Transportation

regulations on the transportation ofhazardous materials.

Section 3004 requires EPA to developperformance standards for the location,design, construction and operation ofhazardous waste treatment, storage anddisposal facilities. Facilities, whether onor off the site of hazardou wastegeneration are covered by thesestandards and are required to obtainpermits. Section 3004 standardscomprise the criteria against whichapplications for permits will beevaluated,

Section 3005 requirements, asproposed in Part 124 of these regulationsestablish the procedures for obtaining apermit to construct and/or operate ahazardous waste treatment, storage ordisposal facility.

Section 3006 requires EPA to issueguidelines for State programs andprocedures by which States may seekauthorization to carry out the hazardouswaste program in lieu of the EPA-administered program. Regulations toimplement section 3006 are proposed inPart 123.

Section 3010 regulations establishprocedures by which any persongenerating or transporting hazardouswaste, or owning or operating a facilityfor storage, treatment, and/or disposalof hazardous waste, must notify EPA ofthis activity within g0 days ofpromulgation of regulations defining ahazardous waste (section 3001). Section3010 provides that no hazardous wastesubject to Subtitle C regulation may betransported, treated, stored or disposed,unless this notification Is timely givdn toEPA.

Table I appearing below crossreferences the numbered sections ofRCRA to the Subpart designations to beused in the regulations:

Table I I

Solid Waste Disposal Act (as amended)Subtitle C Numbering System40 CFR Part 250, Subpart A (proposed at 43

FR 58946-58958 (Dec. 18, 1978))-Section3001 Standards for Criteria, Identification',and Listing of Hazardous Waste.

40 CFR Part 250, Subpart B (proposed at 43FR 58969-58981 (Dec. 18, 1978))-Secflon3002 Standards Applicable to Generators.

40 CFR Part 250, Subpart C--tproposed at 43FR 18506-18512 (April 28, 1978))--Secflon3003 Standards Applicable to Transporters.

40 CFR Part 250, Subpart D (proposed at 43FR 58982-59028 (Dec. 18, 1978))-Section3004 Standards for Owners and Operatorsof Treatment, Storage and DisposalFacilities.

40 CFR Part 122 and 124 Subparts A and B-Section 3005 Permits for Treatment, Storageand Disposal of Hazardous Waste.

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40 CFR Part 123 Subparts A and B-Section3006 Guidelines for Authorized StatePrograms.

40 CFR Part 250, Subpart G-proposed at 43FR 29908-29916 (July 11, 1978--Section3010 Preliminary Notification of HazardousWaste Activities.

Application for a permit (§ 122.23)

The information requirements for aRCRA Hazardous Waste ManagementFacility permit will be divided into twoparts (A and B). This approach is beingtaken in order to expedite and simplifythe permit issuing process so thatexisting facilities may comply with thestatutory requirement for attaining"interim" status [section 3005(e) ofRCRA]. Additional discussion on thisapproach is included later in thisPreamble. Section 122.23 of theseregulations specifies -the informationthat will be required in each part of theapplication and is discussed brieflyhere.

The Agency is now preparing the,necessary forms that will be needed, aspart of the effort to consolidate theapplication forms for the RCRA, NPDESand UIC programs. These forms appearas a notice for public commentelsewhere in today's Federal Register.

Part A of the application requirements'is reflected in two sections (Forms I and3) of the consolidated application form.These information requirements include:submission of a U.S. Geological Surveytopographical map of the general areawhere the facility is located; adescription of the hazardous wastehandled and a brief description of howit will be handled; the annual quantity ofeach hazardous waste handled; andcopies of all available drawings andspecifications for the facility.

Part B of the application requiressubmission of detailed data concerningthe geology, hydrology and engineeringaspedts of the HWM facility. A masterplan including a detailed facility mapalso must be submitted. In addition,detailed information concerning suchfactors as financial responsibility,employee training, contingency plans,operation plans and closure plans, andplans for air and water monitoring mustbe submitted in enough detail to allowthe permitting authority to determine ifthe RCRA section 3004 standards aremet.

A separate application form will notbe developed for Part B as part of theConsolidated Application form due tothe detailed nature of the informationrequired. In supplying Form Binformation, applicants must complywith the information requirements ofthis Subpart.

Existing facilities must submit Part Awithin 180 days of the date ofpromulgation of the regulations undersection 3001 of RCRA (40 CFR Part 250,Subpart A). This requirement will besatisfied by submitting Form I and Form3 of the Consolidated Application forms.This information will be used todetermine the priority for requesting thesubmission of Part B for finaldetermination of the permit application.For new facilities, both Part A and Bapplication requirements must besubmitted together, at least 180 daysbefore physical construction isscheduled to start.

Permitting RequiremenLs-enerol

With some exceptions (discussedlater), any person who owns or operatesor proposes to own or operate a facilityfor the treatment, storage or disposal ofhazardous wastes as identified or listedin proposed 40 CFR 250, Subpart A. mustobtain a RCRA hazardous wastemanagement facility ("HWM facility")permit. Owners/operators of existingHWM facilities must meet thisrequirement by submitting Part A of theapplication requirements within 180days of promulgation of 40 CFR Part 250,Subpart A and by submitting Part B andthe remainder of the requiredinformation upon request of thepermitting authority. Owners/operatorsof new HWM facilities must submit bothparts of the information requirements nolater than 180 days before the scheduledphysical construction date for thefacility for which the permit is sought.Part A will provide the Director withgeneral information on the variousHWM facilities in his/her area. Part Bwill furnish more detailed datanecessary to bring the permitting effortto a conclusion.

EPA is today proposing this two-partapplication process with separate filingdates for existing facilities for thefollowing reasons: First, the readyinformation which Part A (Forms 1 and 3of the Consolidated Application Forms)will supply (See § 122.23(c)) will enablethe State Director or the RegionalAdministrator to establish a system ofpriority review for HWM permits. He orshe can review Part A forms todetermine which facilities warrantprompt attention under 40 CFR Part 250,Subpart D (Standards for Owners andOperators of Hazardous WasteTreatment, Storage and DisposalFacilities) and can then require anearlier submission of Part B of theseapplicants. Hence, permits could beissued earlier to the facilities which arein greatest need of regulation. BecauseEPA expects that approximately 30,000

existing facility permits will have to beissued, it foresees a 5 year period forissuing all permits. Given this span oftime, EPA believes this attempt to issuepermits on a priority basis to be themost effective and efficient use oflimited resources.

Second, the immediate submission ofPart A which should not entail lengthypreparation on the part of owners andoperators, will satisfy the 'permitapplication" requirement for obtaininginterim status under section 3005(e) ofRCRA. Third. a later submission of PartB assures that the detailed informationupon which permit decisions will bebased is complete and current.

The owner/operator of an existingHWM facility is required to submit PartB of1he permit application on the dateestablished by the Director. The Directormust give the owner/operator at leastsix months notice of the date forsubmission of Part B (§ 122.23(a)(2)).Submitting Part B on time will assurethat a facility with interim statusmaintains interim status during permitreview; conversely, failure to submitPart B on time will result in loss ofinterim status. Part B of the permitapplication, which must be signed by aappropriate official (§ 122.5), will not beconsidered to be submitted until all ofthe required information is supplied,except that the Director may waivesubmission of certain information uponrequest as authorized in § 122.23(d](7).

With respect to determining whichpermit applications will receive priorityreview and action, the Director shallconsider several factors. These factorsinclude the amount and nature of thehazardous waste handled by the facility-,the apparent adequacy of the facilitysdesign and operation, and theenvironmental sensitivity of thegeographic area in which the facility tobe permitted is located.

A permit application for a new iVMfacility must be submitted at least 180days before the date on which physicalconstruction is expected to begin§ 122.25(b)). Actual time for processing

of applications and for issuing ofpermits will vary depending on thedegree of complexity and extent ofpublic participation involved. Sincephysical construction of a new facilitycannot begin until a final permit hasbeen issued, the burden is on theapplicant to submit an application farenough in advance ot the physicalconstruction date to enable the Directorto satisfy all of the review requirementsof the regulations and not jeopardize theplanned construction dates. Within 30days of receipt of an application, the

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Director must determine whether theapplication is complete.

Establishing Permit Terms andConditions

EPA is proposing to allow 'minor"modifications to existing permits issuedunder RCRA that may be appropriateunder limited circumstances, as statedin § 122.24, at the discretion of theDirector. This limited modification shallonly be granted if: (1) the Director hasdetermined that a particular HWMfacility is capable of handling the typeor volume of waste proposed ih themodification without violating any otherterms and conditions of the section 3004standards of RCRA, and (2) the HWMfacility can demonstrate that it willreceive these proposed wastes in amanner that cannot be anticipatedthrough contract provisions or by other -means available at the time of initialpermit issuance.

The Director shall issue public noticein accordance with § 124.11 prior to or atthe time of approving any minormodification. By requiring a publicnotice to be issued and the requirementthat all applicable section 3004standards be met, EPA believes thathuman health and the environment willbe adequately protected while, at thesame time, any unnecessary paperworkrequired of permit applicants vill bereduced. Comments on this approachare solicited.

Permitting Requirements-SpecialCategories

These proposed regulations would notimpose the detailed permit requirementsof Subpart B upon several categories ofHWM facilities, where EPA is thepermit-issuing authority. Two classes offacilities, health care facilities andexperimental facilities, would berequired to obtain a "special permit" inlieu of the regular permit describedabove. Three other classes of facilities,special waste facilities, publicly ownedtreatment works accepting wastes 'undera manifest or other delivery documentand barges or other vessels acceptingwaste under a manifest or deliverydocument for ocean disposal, would beregulated under a "permit by rule"mechanism. Finally, injection wellswhich dispose of hazardous wastes andcertain solid waste managementfacilities which accept small amounts ofhazardous wastes would not fall underthe permitting requirements of theseregulations. States approved by EPA toadminister hazardous waste programsare also authorized, but not required, toregulate such facilities in the samemanner as EPA.

Special Permits-Health Care Facilities§ 22.25(a))

Certain departments of hospitals andveterinary hospitals routinely producewastes which fall under the broaddefinition of "hazardous waste" as setforth in proposed 40 CFR Part 250,Subpart A. These facilities when storingor otherwise treating such waste ontheir premises will be considered asHWM facilities. In most cases, however,health care facilities are closelyregulated by existing State laws. EPAhas concluded that detailed permittingrequirements under RCRA areunnecessary for health care facilitieswhich are complying with State law.

Specifically, these regulations requirehealth care facilities which areoperating under and complying with acomprehensive and enforced State lawto submit only an abbreviatedapplication. The application woulddescribe the type of facility and wouldprovide certain operational information.including certification that the facility isoperating under a State license. If theapplication satisfies the requirements of,this Subpart, EPA would issue a specialpermit. Because State law would beadequately controlling the treatmentand storage of hazardous waste by thefacility, the permit would impose noadditional express controls. -

Special Permits-ExperimentalFacilities (§ 122.25(b))

EPA is also proposing to issue specialpermits for "experimental facilities", Le.,facilities which are or would be engagedin technology advancing activities whichare intended to improve the state-of-the-art for hazardous waste treatmentstorage or disposal. As with health carefacilities, the applications whichowners/operators of experimentalfacilities should submit should be easyto prepare and limited in informationalrequirements. EPA is proposiiig thespecial permit mechanism for.experimental facilities for two reasons.First, EPA seeks to encourage inquiryinto new and innovative ways to handlehazardous wastes. Relieving some of theadministrative prerequisites to operatingsuch a facility may facilitate that end.Secondly, and equally important is thedistinct possibility that the Part 250,Subpart D standards, which aredesigned primarily for-typicalcontainment facilities, might not applyfunctionally to facilities implementing anew technology for hazardous wastemanagement. It would not be sensible toforce an innovative facility to complywith informational or otherrequirements not suited to its design.

Of course, these facilities will berequired to comply with all of theapplicable standards of Part 250,Subpart D. Additionally, the regulationslimit the term of such permits to oneyear (with an additional one yearextension under certain conditions) andestablish requirements for submission offull-evaluation reports.

Permit by Rule-Special WasteFacilities (§ 122.26(a))

Proposed 40 CFR Part 250, § 250.40,creates a special category for ownersand operators of facilities which treat,store or dispose of "special wastes,"Special wastes are hazardous portionsof certain large volume wastes on whichthe Agency has limited information,These large volume wastes are cementkiln dust, utility waste (fly ash, bottomash, and scrubber sludge) phosphaterock mining waste, benefication andprocessing waste, uranium miningwastes, other mining waste, and gas andoil drilling muds and oil productionbrines. In-Part 250, Subpart D, EPA Isproposing to exempt these facilities fromcompliance with generally applicablerequirements in favor of certain specialstandards (40 CFR 250.46-1 through 6).EPA intends to propose comprehensivestandards for these facilities whensufficient information on which to basea regulatory program becomes available.

Because the generally applicableperformance standards do not apply tospecial waste facilities, EPA hasdetermined that imposing the fullpermitting burden on members of thisclass serves no useful purpose.Consequently, in its place EPA Isproposing to require only a "permit byrule." A permit by rule would simplymean that the owner or operator of aspecial waste facility would be deemedto-have a permit, without having tosubmit any application for It, if thefacility complied with the special wastefacility standards of 40 CFR 250.40. Afterdata is available to the Agency, thisregulatory approach would be modifiedas appropriate.

Permit bi Rule-Publicly OwnedTreatment Works and Ocean DisposalVessels (§ 122.26 (b) and (c))

EPA is also proposing to use thepermit by rule mechanisms for two otherHWM facilities, publicly ownedtreatment works which accepthazardous wastes under a hazardouswaste manifest or other deliverydocument, and barges or other vesselswhich receive hazardous wastes under amanifest or delivery document forpurposes of ocean disposal.

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Similar to the situation of the specialwaste facilities, use of the permit by rulemechanism should save owners andoperators of these types of HWMfacilities from paperwork burdens whichaccompany the task of preparing andsubmitting permit applications.

EPA is eliminating the affirmativerequirement to secure a permit'for thesefacilities because they are currentlyregulated under other EPA waterpollution control programs. PubliclyOwned Treatment Works (POTW's) fallunder the National Pollutant DischargeElimination System (NPDES) permitsystem of the Clean Water Act andocean dumping vessels come under thepermit system of the Marine Protection,Research, and Sanctuaries Act. Theseongoing programs should provide adegree of environmental protectionequivalent to that of Part 250. Inrecognition of this fact Part 250, SubpartD, specifically exempts both of thesetypes of HWM facilities from its -requirements (40 CFR 250.40(e), 43 FR58996 (Dec. 18,1978)).

Thus, a POTW or ocean disposalvessel would be deemed to have apermit if it operates in accordance withthe NPDES and Ocean Dumping permitsand if the owner or operator complieswith the notification, manifest,recordkeeping and reportingrequirements.Underground injection Wells Permitting

These regulations propose to relievethe activity of injecting-hazardous wasteinto underground injection wells fromRCRA permitting requirements. As inthe case of POTW's and ocean disposalvessels, injection wells aretechnologically dissimilar to moreconventional HWM facilities and,therefore, many performance standardsof Part 50, Subpart D, are functionallyinapplicable. Also, as in the case ofPOTW's and ocean disposal vessels,underground injection wells fall underan alternate Federal regulatory program.Consequently, Part 250, Subpart D. hasbeen made specifically inapplicable tounderground injection wells (40 CFR250.46(e)).

The alternate regulatory program isthe underground injection control (UIC)program of Title C of the Safe DrinkingWater Act, which is proposed for publiccomment in these regulations and in 40CFR Part 146 (proposed at 44 FR 23738(April 20, 1979)). The UIC program -requires that all hazardous waste *injection wells comply with its minimumstandards. Injection wells, includingthose injecting hazardous wastes, areexclusively regulated by those minimumstandards. Thus, in an instance where

one site contains surface facilities whichtreat, store or dispose of hazardouswastes, as well as a hazardous wasteinjection well, the surface facilities willbe required to comply with therequirements of the RCRA program onlyand the injection well will be required tocomply solely with the requirements ofthe UIC program.

But, in order to assure that theseparallel regulatory efforts work together,the UIC program has included in 40 CFR146.09 a subset of standards from theRCRA program regarding notification,reporting, recordkeeping and themanifest system. Injection wells whichinject hazardous wastes, as a generalmatter, must comply with these RCRA-originated standards to assure that theinformational system of that programsuccessfully tracks all hazardouswastes.

In instances where the RCRAinformational system requirements havealready been met, for example, when thewastes received by the well are suppliedby an on-site surface facility which hasalready complied with theserequirements under the RCRA program.the well operator need not comply withthe requirements a second time. Wastesreceived by such wells would not be"accompaniea by a minifest or otherdelivery document" as stipulated in§ 146.09.

The pemit by rule mechanism is notneeded because compliance with thenotification. recordkeeping, reportingand manifest requirements of Part 250,Subpart D is provided in the UICregulations themselves. The Agency hasdone so in 40 CFR 148.09; the permit byrule, thus, has become operationallyunnecessary.

The Agency is well aware that section3005(a) of RCRA asserts a broadpermitting requirement for all HWMfacilities. Despite this language, EPA ismaking a concerted effort to streamlineits procedures and does not want toimpose non-beneficial and duplicativeregulations which seemingly do notfurther the goals of the statute. TheAgency solicits comments on theadequacy of environmental protectionwhich these alternate regulatoryprograms offer, on the appropriatenessof establishing "special permits","permits by rule", or the alternatemechanism to cover UIC wells, and onthe legal and practical implications ofthe entire effort.

Solid Waste Disposal FaciliLies WhichReceive Small Amounts of HazardousWastes

These regulations also exempt fromRCRA permittingsrequirements certain

solid waste disposal facilities whichreceive hazardous wastes in smallquantities. These facilities are thosewhich receive wastes exclusively frompersons subject to 40 CFR 250.29(proposed at 43 FR 58979. Dec. 18,1978].Persons under § 250.29 are those whoproduce and dispose of no more than100 kilograms (approximately 220pounds) of hazardous waste in any onemonth: any retailer disposing ofhazardous waste (other than waste oil);and certain farmers who dispose ofpesticides and follow specifiedoperating procedures.

40 CFR 250A0(c)(5) exempts thesefacilities from meeting any of the section3004 standards for H-,VM facilitiesbecause they will be regulated as solidwaste disposal facilities under SubtitleD of RCRA. Moreover, the relativelysmall amounts of hazardous wastes-which these facilities would receivewould not change their overall characteras solid waste disposal facilities; norwould these facilities in anywayprovide an insufficient level ofprotection to human health and theenvironment (see preamble to 40 CFRSubpart D, 43 FR 58985). Tius, in thedefinitional section [§ 122.3[b)] ofSubpart A of this Part, EPA is proposingto remove this class of facility from thescope of the term "hazardofts wastemanagement facility."

Interim Status (§ 122.23)

Section 3005(e) of RCRA provides amechanism for existing facilities tocontinue receiving hazardous wastesprior to obtaining a permit under theseregulations. That mechanism is "interimstatus." Under the terms of section3005(e), a facility with interim status"shall be treated as having been issueda permit until such time as finaladministrative dispostion of suchapplication is made, unless theAdministrator or other plaintiff provesthat final administrative disposition ofsuch application has not been madebecause of the failure of the applicant tofurnish information reasonably requiredor requested in order to process theapplication." To qualify for interimstatus, a facility must have compliedwith the notification requirements ofsection 3010 of RCRA. and must havesubmitted Part A of'the permitapplication. Moreover, during theinterim status period, facilities mustcomply with- a limited set of operatingprocedures (see 40 CFR 250.40(c)). EPAinterprets Congressional intent, inproviding interim status, as a means forallowing the continued receipt andhandling of hazardous wastes by HWMfacilities during the "start-up" period of

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the RCRA program. Therefore, existingfacilities which are participating in theprogram would not be subject to thegeneral prohibition against treating,storing or disposing of hazardous wastesin the absence of a permit.

Because these regulations do notrequire site-specific permits for threeclasses of facilities (special wastefacilities, certain POTW's, and oceandumping vessels) these three classes offacilities need not submit a Part Aapplication (Forms 1 and 3 of theConsolidated Application Forms) toqualify for interim status. EPA isproposing this approach because itwoud be contradictory for the agency tcease a requirement to avoid regulatoryoverlap on the one hand, and, then, to •simply reinstitute the requirement foranother reason. Consequently, for theseclasses of facilities, EPA intends toconsider the submission of notificationunder section 3010 as satisfying the'permit application requirement" ofsection 3005(e). Section 3010notifications supply the sameinformation, although in lesser detail, asdo Part A applications. Moreimportantly, however, allowing interimstatus to these facilities is in keepingwith thbintentions of Congress.

These regulations also adjust thescope of coverage of section 3005(e)interim status. The statute specificallyextends interim status, upon satisfactionof the prerequisites, to all HWMfacilities in existence on the date ofenactment of RCRA. EPA is extendingthe option to obtain interim status toHWM facilities in existence on the dateof promulgation of regulations undersection 3001 of RCRA. Again, EPAbelieves that this adjustmentImplements the intent of the legislation.Congress intended that tlie flow ofwastes wouldnot be interrupted duringthe start-up of the Federal progam.Indeed, the continued availability ofdisposal sites to take ever-increasingamounts of hazardous wastes can betermedcrealistically as a public healthnecessity. If EPA were to disallow thecontinued receipt of hazardous wastesby post-enactment facilities for all or aportion of the anticipated five years itwill take to fully implement thepermitting program, it could seriouslydisrupt ongoing hazardous waste controlefforts. To-do so would contradict theentire premise of the statute. -

Moreover, it would be inequitable tointerrupt operations of HWM facilitiesfor which all possible steps to complywith new regulatory requirements havebeen taken.

EPA specifically requests comment onthis Implementation of section 3005(e).

Major Facilities (§ 122.3(b))

One of the primary administrativetasks which EPA will undertake oncethese regulations come into effect is thesystematic review of permit applicationsreceived by approved States and ofdraft hazardous waste permits preparedby approved States. EPA will undertakethis effort to assure routine compliancewith these regulations and Part 250.However, it became apparent earlyduring pieparation of these regulationsthat this review function couldoverwhelm the Agency-approximately30,000 RCRA permits will be issuedunder these provisions in the next fiveyears. Consequently, recognizingadministrative limitations on its reviewfunction, EPA does not intend to reviewpermit applications and draft permits forfacilities subject to a State programwhich are small, non-complex, and non-controversial. Instead, it intends toreview these documents as they relateto "major" facilities. EPA will consider afacility to be "major" if it handles, orwould handle, more than 5,000 metrictons of hazardous wastes per year.Permits for major facilities must beaccompanied by fact sheets containingrelevant information on the facility;,permits for non-major facilities must beaccompanied by a less detailed"statement of basis."' (See § § 124.8through 124.9.)

EPA considers the use of a tonnagecutoff figure to establish the "major"character of a facility to be the mosttelling and straightforward way ofreliably and simply accomplishing theobjective. EPA considered other meansof doing this, but found them lesspreferable. For example, EPAconsidered basing this determination onan analysis of the relative-hazard ofwastes received by each facility. As wasdiscussed in the preamble to EPA'sregulations defining "hazardous waste",(Part 250, Subpart A), the Agency wasunsuccessful in this effort

EPA requests comments from thepublic on the use of a volume criterionto distinguish major and non-majorfacilities. Moreover, EPA requestcomment on the selection of 5,000 metrictons per year as the criterion. EPAbelieves that use of this figure shouldresult in review of facilities which trulywarrant close attention. As EPA's dataindicates that the median HWM facilityhandles about 1,100 metric tons ofhazardous waste annually, EPAanticipates that under this criterion, itwould review approximately 10 percentof permit applications and draft permitsprocessed by States.

EPA, however, recognizes that Itsinformation on the relative sizes ofHWM facilities is incomplete. Becausethe utility of the 5,000 metric toncriterion is largely dependent upon theactual capacities of existing HWMfacilities, the Agency intends to continueinvestigating its appropriateness.Information-from the regulatedcommunity and other interested personsin this regard is solicited.

Other Environmental Factors

During the development of theseregulations, the Agency recognized thatcertain "secondary" environmentalimpacts from factors including roadwaytraffic to and from facilities, accessroutes to facilities, noise, dust, odor,aesthetics, etc., were not amendable tocontrol through the RCRA section 3004standards nor by these regulations.Thus, these regulations do not addressthese general environmental Issues. TheAgency did consider the followingoptions before deciding not to proposeregulations in this area:

1. Require that an EnvironmentalImpact Statement [EIS) be prepared.EPA has determined that the permittingprocess under section 3005 is not subjectto the EIS requirement of section102(2)(c) of the National EnvironmentalPolicy Act. A legal memorandum on thispoint has been prepared and will bemade available upon request. Thepermitting process as specified in Part124 of these regulations fully allows andencourages involvement of the public Insection 3005 decision making. TheAgency also has determined that theregulation of secondary environmentalimpacts is outside the scope of authoritygranted to the Agency by RCRA: Statesand local authorities can more suitablyregulate these impacts.

2. Require applicants for permits toanalyze the impact of the environmentalfactors outline above, and to submit a"Supplementary EnvironmentalAnalysis" (SEA) with the application fora permit. The SEA would be a part ofthe application, would be made public,and would be addressed during thepermit application review process.

3. Same as Option 2, except EPA ingranting permits to facilities wouldinsert conditions in such permits basedon the impact analyses -of the SEA.

4. Require applicants for permits tocertify that all State and local laws andordinances regarding the environmentalfactors outlined above will be compliedwith.

Comments on these options, orsuggestions for other options orapproaches to this issue are solicitled.



'FPIdnrl Reoistar I Vol. 44. No. 116 I Thursday, Tune 14, 1979 I Proposed Rules345

Em&igency Authorization (§ 122.28)

These regulations also provide theDirector with emergency authority torespond appropriately to immediatehazards to the environment or to humanhealth. They provide that, in such event,the Director may issue a temporary:authorization to a permitted facility, notto exceed 0 days, to accept hazardouswastes not covered by a permit. Theauthorization may be oral or written. Iforal authorization is given, it must befollowed withn five days with a writtenorder. Emergency authorization can berescinded at any time. EPA has includedthis proposed emergency authorizationbecause it believes that the Directorshould have broad discretion to respondin a measured and effective way toemergency situations. The AgencIrequests comments on the propriety andscope on this emergency authority.

Subpart C-The UIC Program

Congress has 'authorized EPA in -sections 1421-1424 of the Safe Drinking.Water Act to establish by regulation: (1)minimum requirements for effectiveState UIC programs; and (2] aprocedural mechanism whererby Statesmay obtain EPA approval to operate all

-or part of such programs. Were Statesdo not obtain EPA approval. EPA isempowered to establish and operateprograms for those States.

As a result of the consolidation of theNPDES and RCRA programs with theUIC program, EPA examined theoverhips inherent in the three programs'statutory authority as described above.As a result, the Agency has decided toregulate injection wells primarily underthe UIC program. Comments aresolicited on the propriety of theAgency's assigning primary jurisdictionover underground injection control tothe UIC program-

In addition, any well that injectshazardous waste could be regulated-mder RCRA. In those cases, also theAgency has chosen to regulate suchwells under the UIC program and toapply certain RCRA requirements (e.g.,closing of the manifest cycle) throughthe UIC regulations.

At one point in developing theseregulations, EPA contemplatedsubjecting only wells that injected into,through or above underground sourcesof drinking water to these regulations.However, even wells which do not injectinto, through or above undergroundsources of drinkuig water may causefluid to move underground in such afashion as to contaminate such sources.The Agency decided that the properapproach would be initially to bring all

wells into the regulatory system so thatevery injection activity could be publiclyknown. Each well may then be classifiedproperly, (see discussion below)resulting in requirements that the wellinjection practice be regulated orbanned entirely or, where appropriate,not controlled at alL

Comments are solicited on the aboveapproach. In addition, the Agency seeksdata on off-shore injection operationsand information on special problemsthat control of off-shore injection wellsmay pose, if any.

Listing of StatesThe UIC program becomes operative

in a State only after the State has beenlisted by EPA under section 1422 ofSDWA as needing a UIC program, andeither the State obtains EPA approval ofits program or EPA establishes aprogram for thdt State. State programrequirements and approval proceduresare set forth in Part 123.

On September 25,1978, EPA listed 22States as needing a UIC program:Arizona, Arkansas, California,Colorado, Florida, Illinois, Indiana,Iowa, Kansas, Kentucky, Louisiana,Michigan, Mississippi, New Mexico,New York, Ohio, Oklahoma,Pennsylvania, Texas, Utah, Vest.Virginia and Wyoming. See 43 FR 43420(September 25,1978). Since that time,Maryland has petitioned to be listed.

The Agency had initially intended tofocus its efforts on these listed Statesand to phase in other States gradually.The purpose was to focus Agencyresources and grant funds upon areaswhich appeared to have the most urgentneed for such programs. However, as aresult of its consolidation efforts, theAgency became aware of potentiallydifferent timetables for the listing ofStates under the UIC program and theestablishment of RCRA programs inthose States. States are expected tobegin operating approved hazardouswaste programs in mid-1980. This raisesthe possibility that some disposers ofhazardous waste will seek to avoidRCRA requirements by injectinghazardous waste underground inunlisted States. To ensure consistency ofcoverage, the Agency has decided to listthe remaining unlisted States in twostages by May of 1980.

Designation of UndergroundDrinkngWater Sources (§ 12233)

As part of developing Its UIC program.the State must designate those aquiferswhich are to be protected asunderground drinking water sources andthose which are not. The criteria fordesignation are contained in Part 148,

and are explained in detail in thePreamble discussion on Subpart A ofthis Part.

Section 122.33 specifies procedures forState designation of aquifers. Allaquifers will automatically bedesignated as underground drinkingwater sources unless specificallyexcluded. Any exclusion must define theexcluded area in geographic terms,rather than by name, to ensure thatinjectors have adequate notice as towhether or not they will be injectingabove, into or through a designatedunderground drinking water source.

Classes ofi/ells (§ 122.34)The injection wells covered by the

UIC regulations are divided into thefollowing five classes:

(a) Class I includes industrial andmunicipal disposal wells and nuclearstorage and disposal wells that injectbelow all underground sources ofdrinking water in the area.

(bJ Class II includes all injection wellsassociated with oil and gas storage andproduction..

(c) Class III includes all specialprocess injection wells, for example, -those involved in the solution mining ofminerals, in situ gasification of oil,shale, coal etc., and the recovery ofgeothermal energy.

(d) Class IV includes wells used bygenerators of hazardous wastes orhazardous waste management facilitiesto inject into or above undergroundsources of drinking water.

(e) Class V includes all other injectionwells.

Due to basic differences in functionand/or environmental effects of theabove classes of wells, they are treateddifferently in many respects, asexplained below.

Once a State UIC program is effective,all new Class 1, H and IlI injection wellsmust obtain a permit to begin operation.All existing wells in these three Classes(except existing enhanced recovery andhydrocarbon storage wells) must alsoobtain permits within five years of theeffective date of the program accordingto priority schedule to be established bythe permitting authority.

Existing wells requiring a permit mustbe authorized by rule until the permit isapplied for and processed. Such rulesmust apply the appropriate monitoring,reporting and abandonmentrequirements set forth in 40 CFR 14.Existing enhanced recovery andhydrocarbon storage wells may beauthorized by rule for the life of thefacility. These rules are to applyessentially the same requirements aspermits under Class IL However, while

Fee Ie~e /I Vo.4,o 1 hrdy unI4 99/Pooe ue

34255




each permit is to establish a specificcompliance schedule, rules are to setforth a general timetable for theattainment of applicable requirements.

To obtain a permit, owners oroperators of wells must submitapplications to the Director inaccordance with the requirements ofSubpart C of Part 122. Because most ofthe information relied upon by theDirector to write a permit is in manycases already contained in State Files,only a few basic items of informationmust be contained in an application to aDirector of a State-administered UICprogram unless the Director requestsfurther information (either because Statefiles are incomplete or because theDirector wishes to update theinformation). In the case of EPA-administered programs, the applicationmust contain all the information whichthe Director needs to write the permit.Part 146 (proposed at 44 FR 23738 (April20, 1979)) sets forth the informationwhich a Director must consider whenwriting a permit.

A well may be covered by. an arearather than an individual permit. Toqualify for an area permit, the wells.must be:

(1) Under the control of a singleperson;

(2) Of the-same type (e.g., Fraschprocess, enhanced recovery, or saltwater disposal);

(3) Within a single well field, projector site;

(4) Injecting into the same zone oraquifer, and

(5) Covered by the same applicationfor a permit.

The requirements which apply to anindividually permitted well applyequally to a well authorized by an areapermit. However, under an area permit,new wells may be authorizedadministratively as long as they areunder the control of the person holdingthe area permit, are essentially of thesame construction and are intended forthe same purposes as existing wells.

EPA requests comment on the,advisability of the use of area permits.In particular, comment is solicited onwhether the conditions (e.g., the use of"well field") have been properly framedto provide the intended relief fromenvironmentally unproductiveadministrative burdens.

Section 122.42 contains two additionalrequirements of the UIC program. First,the permittee must notify the Director ofhis or her intention to cease operationand follow the Director's prescribedprocedures for abandoning the well.Second, the permittee must maintainfiscal responsibility in some form to

close, plug and abandbn the well in amanner which does not endangerunderground drinking water sources.

TemporaryAuthorization

The Agency has identified two typesof situations where it may be necessaryto authorize underground injectiontemporarily before permit-issuanceprocedures may be carried out.

The first situation is where animminent hazard to human health or theenvironment may occur unlessimmediate injection is authorized. Oneexample might be a spill or leak whichwould result in sigidficant releases ofhazarddus wastes to the environment.While the Agency cannot predict all ofthe situations where this may occur, ithas concluded that a temporaryauthorization should be available underthe circumstances defined in theseproposed regulations.

The other situation-is where oil andgas production would be delayed,resulting in loss of such naturalresources, unless reinjection of brine Ifimmediately authorized. Temporaryauthorization in this situation isconsistent with sections 1421(b)(2) and1422(c), which provide that the UICprogram may not interfere with oil andgas production, except as necessary toprotect underground sources of drinkingwater. The Agency proposes to allowtemporary authorization in the abovesituation, provided that timelyapplication for a permit could not havebeen made, and that the injection willnot cause fluid movement tounderground sources of drinking water.

Comments are solicited on both typesof temporary authorizations. Are theywell defined? Should certain criteria beadded or deleted? Should temporaryauthorization be added for othersituations?

-Class IV wells

Class IV wells are expected to involvethe injection of hazardous waste into orabove underground drinking watersources, a practice which is inherentlyunsafe. Unlike the case of deep disposalwells, it is not possible to preventendangerment of underground drinkingwater sources by establishingconstruction and operationrequirements. EPA proposes, therefore,that existing class IV wells will beinventoried and closed, and thatinjection into new class IV wells will beprohibited.

Existing class IV wells are proposedto be authorized by rule until the time oftheir closure.

Comments are solicited on theAgency's proposed approach to class IVwells.

C2ass V wells

There are many types of class Vwells, and Agency studies indicate theexistence of perhaps a 250,000-500,000such wells in the United States. TheAgency is not presently in a position todetermine which wells are safe or 'unsafe, and whether some of these wellsshould be either regulated or phased out,As a regult, Directors of UIC programswill be required to inventory class Vwells within their States, provide EPAwith assessments of the Impact of thesewells, and recommend possible meansof regulating them. If necessary, EPAwill then amend these regulations tocover class V wells in a manner whichwill prevent endangerment ofunderground drinking water sources. Inthe meanwhile, immediate action will berequired to address those wells thatpose a significant risk to human health.

Class V wells will be authorized byrule pending amendment of thesqregulations to regulate such wells,

Comments are solicited on the need toregulate particular types of class V wellsand how to do so. In particular, EPAsolicits comments on whether specialprocedures for regulating class V wellsshould be provided.

Subpart D-Specific RequirementsApplicable to the NPDES Program

Subpart D of Part 122 containsrequirements which are identical to thefinal NDPES regulation, Part 122, as wellas certain application requirements fromfinal NPDES Part 124.

Part 123

What does this Part do?

This Part establishes tharequirementsfor State NPDES, UIC, RCRA,(hazardous waste) and section 404(discharges of dredged or fill material)programs and the process for approval,revisiod and withdrawal of Stateprograms. While State programs areestablished and operated tinder Statelaw4 approved CWA, RCRA, or SDWAState programs implement Federal law,A permit issued by a State under Statelaw after the program has beenapproved satisfies the Feder~al permitrequirement.

Part 123 is divided into a generalsubpart (Subpart A) and programspecific subparts (Subparts B-E). Therequirements of Subpart A are generallyapplicable to all four of the StatePrograms covered by this Part. The otherSubparts provide requirements

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Federal Register / Vol. 44, No. 116 1 Thursday, June 14, 1979 / Proposed Rules

additional to those of Subpart A. SinceEPA does not issue section 404 permits(these are issued by the Corps ofEngineers in the absence of an approvedState program], Part 122 does notcontain a Subpart E. Part 123 Subpart E,therefore, contains the additional permitprocessing requirements applicable toState 404 programs.

Subpart APurpose and scope (§'123.1). This

section notes that Part 123 is related to,among others, Parts 122 and 124.However, only those s~ctions of Parts122 and 124 which are adopted byreference in Part 123 are applicable toState programs. Part 123 lists all therequirements applicable to Stateprograms. In addition, applicableportions of Part 122 may, in turn, adoptrequirements derived from other Parts ofthis-Chapter.

The approach of the statutesauthorizing the programs covered bythis Part is that the Federal governmentshould set minimum standards, with anyState being given the freedom to imposeany more stringent approach it deemsappropriate. The only exception to thisis in the hazardous waste programwhere Congress determined that theneed for consistency between the Statesoutweighs any one State's interest inhazardous waste regulation. Thisexception has been narrowly construedand is discussed further in the preamblediscussion of Subpart B.

State programs are developed andimplemented under State law. Whilethis Part sets minimum requirements forState programs, it generally does notrequire that State authorities be wordedor structured the same as the applicableFederal authorities. Nonetheless, theAgency encourages States to .incorporate by reference, to the extentallowable under State law, Federalrequirements, especially those which aretechnical in nature.

Elements of a program submission(§ 123.3). This section lists the contentsof a complete State appliiation forprogram approval. Each of the elementsmust be received by EPA before theformal statutory review starts. Each ofthe laws authorizing the State programscovered by this Part limits the time forEPA reiew of a State application forauthorization. Therefore, it is necessaryftat EPA have complete information,organized in a particular way, about theState program before formal reviewcommences. States are encouraged toconsult with EPA in developing thesrbmision.

Attorney General's Statement(i 123.5). In understanding therequirements of State law, EPA givesgreat weight to the interpretations madeby the State's Attorney General. Indeed,the Attorney General's Statement is -necessary for EPA to adequately judgethe legal basis for the State programs.EPA will develop a model AttorneyGeneral's Statement format for each ofthe programs.

Memorandum of Agreement withRegional Administrator (J 123.6). TheMemorandum of Agreement (MOA]between EPA and a State defines thebasic working relationship between theagencies, thereby avoiding confusionand legal uncertainty which mightotherwise exist.

The MOA may not be used as asubstitute for adequate legal authority.While it may be appropriate for a Stateto give, in the MOA, its assurance that itwill abide by certain requirements, theauthority to do so must be present inState law.

Relationship Between Memorandum ofAgreement and State/EPA Agreement

The State/EPA Agreement is anoverall management tool which providesa way for the Regional Administratorand the State to coordinate and. to themaximum extent feasible, integrateprogram administered by EPA and theState, emphasizing problem-solvingapproaches to.specific environmentalproblems. The State/EPA Agreementreflects important decisions onEnvironmental priorities, administrativeproblems, timing, responsibilities andallocation of resources. In FY 190, theState/EPA Agreement is to coverprograms under the Clean Water ActSafe Drinking Water Act and ResourceConservation and Recovery Act. Otherenvironmental programs will be addedto the process in following years.

The Memorandum of Agreement, Is adocument signed by the Administratorand the State which formally sets forththe relationship between EPA and Statein the administration of an approvedState permit program and detailsspecific procedures that must befollowed by both parties in thedevelopment, issuance, review andenforcement of permits. TheMemorandum of Agreement Is one ofthe means by which EPA assures thatState issued permits are consistent withthe requirements of the appropriate Actand implementing regulations. Becauseof this, any proposed change to an MOAmust be reviewed and agreed to theAdministrator to assure it is consistentwith the requirements of this Part.'

The Memorandum of Agreement andthe State/EPA Agreement should beconsistenL This should not present aproblem since they generally addressdifferent areas of the State/EPArelationship. The State/EPA Agreementshould include the MOA. However, itmay not override it in the instance ofany inconsistency. If the State/EPAAgreement indicates that a change isneeded in the MOA. the proposedchange must be reviewed and agreed toby the Administrator.

Operational Requirements (§ 123.8).This section sets out, by crossreferencing applicable sections of Parts122 and 124. certain operational aspectsof State permit programs. Todemonstrate compliance with thesesections, States do not need authoritiesidentical to EPA's. Compliance maybeshown by any set of authorities whichenable the State Director to meet theserequirements or requirements which aremore stringent. Where these regulationsrequire that certain activities be coveredby permit. a State authority to regulatethe activity by rule will not be approved.

Compliance evaluaffon programs(§ 123.9). States must have a systematicprogram for evaluating compliance withpermit conditions and other programrequirements. These programs musthave the ability to evaluate reportssubmitted by permittees, to conductinspection and to investigate evidenceof violations submitted by the-public.

Enforcement authority (§ 123.10). Thissection proposes that States shouldhavean array of enforcement tools available.These must include a procedure forimmediately responding to emergencysituations endangering public health.injunctive relief, civil penalties andcriminal fines. Each of these remedies isavailable to EPA where it is.administering the program and-Statesmust have equivalent authorities.

The requirements for the progrdmsvary slightly because each of theFederal acts have different provisionsfor EPA enforcement. For example,establishing the degree of criminal intentof the violator is a necessary element ofany criminal]prosecution. This sectionprovides that the degree of criminalintent which the State must establishshall be no greater than that in theappropriate Act for EPA prosecution.

Likewise, the penalty amountsrecoverable by the State shall be at leastthe same as those recoverable by EPA.See Table IL

3427




Table II

Maxdmum penalty amount IntentSanction

RCRA UIC NPDES/404 RCRA UIO NPDES/404

civi penalty. ............... $25.000 $5,000 $10,000- None..- None-- None.cilminal fine............... 25.000- 10,000 25,000-- Knowingly. Willfully- Negligently.

doubled for doubled forsecond secondoffense, offense.

Criminal fine for false reporting/ 25,000... 10.000 10.000_. Knowingly.. Willfully- Nogigently.tampering:

EPA proposed to require States tohave the maximum penalty amounts atleast the same as those listed in Table I.States are encouraged to comment onthis requirement. In particular, EPA isinterested in finding out which Stateshave existing programs which areunable to meet these requirements, whatenforcement remedies are available tothose States and what other legislativechanges, if any, must be made by thoseStates to meet the requirements of thisPart.

The State need not always adopt thesame terminology on degree of criminalintent. For example, if the burden of"proof for establishing "criminalnegligence" in State court is equivalentto that for establishing "negligence" in acriminal proceeding in Federal court,such State authority satisfies therequirements of this section.

Each of the three Acts implementedby these regulations provide citizenswith the right to initiate legal action inFederal court to enforce permit-requirements. This right exists even'when a permit program is administeredby a State after approval by EPA. Thethree Acts also provide citizens with theright to intervene in enforcement actionsbrought by EPA. However, EPA hasconcluded that requiring States to allowcitizens to intervene in Stateenforcement actions is neither necessaryto foster public involvement in permitenforcement nor required by law.Accordingly, these regulations do notprovide that States must provide forcitizen intervention in enforcementactions brought by States in Statecourts. Although there is somepossibility than an inadequate Stateeffort could thwart effective citizeninvolvement in enforcement of Stateissued permits, EPA believes that theopportunity for citizens to beingenforcement actions in Federal courtsmakes that risk minimal. Comment onthis point is invited. For furtherinformation on citizen involvement inenforcement, see the preamble to therecently promulgated NPDES permitprogram regulations (44 FR 32854).

Approval process (§ 123.12). Theprocess for approving State programswas not stated in Subpart A because ofthe differences which exist between thestatutes involved. Therefore, these areset out in the individual program'subparts.

Withdrawal (§ § 123.14 and 123.15).These sections set forth the proposedcriteria and process for withdrawal of -State programs including therequirements for voluntaryrelinquishment of Federal programresponsibility by a State. The criteria setout in § 123.14 are an elaboration of thecriteria set out in each of the applicableFederal statutes.• It should be noted that program

withdrawal is an extreme remedy whichis likely to be employed only where allother efforts to insure that a Stateprogram complies with this Part have

-failed.§ 123.15(a) sets out the basic process

for voluntary relinquishment of Federalprogram responsibility by a State-Itprovides for a 180-day advance noticeby the State accompanied by a plan forthe orderly transfer of necessaryinformation. It further provides for 30days advance public notice of thetransfer. These provisions may bemodified by agreement.

§ 123.15(b) sets out a formal hearingprocess for withdrawing State programs.(other than UIC programs, which arecovered in Subpart C). This process maybe initiated by the Administrator on hisor her own motion or in response to aformal petition from any interestedperson. In order to avoid the need forthe Agen~y to develop a new set offormal hearing procedures, thisparagraph adopts by reference certainprovisions from the regulations of Part22 of this Chapter. (Pirt 22 regulationswere proposed on August 4,1978, 43 FR34730, and will be promulgated shortly Jin-essentiallythe form proposed. Allcitations art to the proposed version.)Relationship of Subpart A to the FinalNPPES Regalations ,

Certain elements of the NPDESprogram have been modified or added toin Subpart A, as a result of

consolidation with the other programs.Comments are welcome on thesechanges or additions. For example, thecriteria and process for withdrawal ofState programs, including NPDES andsection 404 programs, are new to theseregulations. In addition, the proposedrequirement that States have at least thesame penalty amounts as EPA is achange from the existing requirement.

Subpart B

Subpart B of Part 123 establishesadditional substantive and proceduralrequirements for State hazardous wastemanagement programs under section3006(a) of RCRA. This Subpart controlsboth "Authorization" and "InterimAuthorization" of State programs undersections 3006 (b) and (c) of RCRA,respectively. Proposed Guidelines forState Hazardous Waste Programs werepublished as Part IV of the February 1,1978 Federal Register (43 FR 4360). Theyare reproposed here.

EPA's response to several recurringsubstantial comments, receivedconcerning the February 1, 1978,proposal, and, discussions of certainprogram decisions, are set forth below,

Under section 3009 of RCRA, Statesmay not impose any requirements lessstringent than those under Subtitle C ofRCRA. However, some latitude will beallowed in the degree of stringency ofthe State's criteria and standards duringthe interim authorization period. When"full" authorization (hereafter called"authorization") is approved undersection 3006(b), the State's standardsand criteria must be no less stringentthan those promulgated by EPA undersections 3001-3005 of RCRA. See TableI.

For example, as a condition for suchauthorization, EPA expects such Stateprograms to control at least the sameuniverse of hazardous wastes as theFederal program. This may beaccomplished most easily by adoptingEPA's criteria and listings under section3001 of RCRA, although such anadoption is not a requirement forauthorization. See proposed 40 CFR Part250, Subpart A, as referenced in Table 1.

The State program also must controlat least the-same universe of generatorsand transporters and contain standardsthat are at least as stringent as those ofthe Federal program under sections 3002and 3003 of RCRA, includingrecordkeeping, labeling, use ofappropriate containers, reporting andmanagement of a waste tracking(manifest) system using the Federalmanifest format. See proposed 40 CFRPart 250, Subparts B and C, asreferenced in Table I.

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Federal Register / Vol. 44, No. 116 / Thursday, June 14, 1979 / Proposed Rules3

Finally, the State program mustcontrol at least the same universe oftreatment storage and disposal facilitiesand must not compromise the humanhealth and environmental standardsunder section 3004 of RCRA. Theadequacy of the State'sgeneral facilitystandards treatment, storage anddisposal facility standards and specialwaste standards will be evaluatedagainst those issued by EPA undersection 3004 in order to determine if theState program is equivalent to theFederal program. See proposed 40 CFRPart 250, Subpart D, as referenced inTable L

In addition, a State's pastperformance in responding to situationsinvolving hazardous waste which maypresent an endangerment to health orthe environment will be considered byEPA in deciding whether to approveState hazardous waste programs.

Comments or suggestions on theevaluation of the equivalence of Stateprograms are solicited. One optionunder consideration is to require Statesto adopt the Part 250 regulations.

Another alternative requirement forauthorization of a State hazardouswaste program would be to requireStates to issue all hazardous wastepermits under their jurisdiction within aset time frame, such as three or fouryears. EPA estimates that completepermit issuance without such arequirement will probably take at leastseven'years. On the other hand. Stateresources are limited, and the impositionof such a requirement could deter someStates from seeking approval of theirprograms. Comments are solicited onthis problem, and on alternativeapproaches.

Concurrent enforcement authority isprovided EPA under § 3008(a)[2) ofRCRA in States with either type ofauthorization. EPA can use thisenforcement authority and will nothesitate, under appropriatecircumstances, to enforce directlyagainst any facility or activity violatingthe Federal standards.

Manifests. To satisfy the operationalrequirements specified in § 123.39, aState need not have an operating systemfor controlling manifests during theperiod of interim authorization.However, a State must have adequatelegislative authority and should becapable of commencing routineoperation of the manifest system,reporting, and recordkeepingimmediately after full authorization. It isimportant for the regulated communityto note that although the manifestsystem control is not a requirement forinterim authorization, manifests must

nevertheless be prepared and used in aState with interim authorization. Inconjunction with the management of theinformation reported through themanifest system, the Agency Isdeveloping an Automated DataProcessing (ADP) system which will bemade available to the States. Use of theADP system by the States is optional.

Free Movement of Hazardous Wastes.A decision by the United StatesSupreme Court (City of Philadelphia v.New]Jersey, No. 77-404, June 23,1978),invalidated New Jersey's ban on theimportation of wastes for disposal onthe grounds that it imposed an unduerestraint on interstate commerce. Basedon this decision, It is reasonable toassume that other present and futureinterstate waste importation bans wouldlikewise be struck The Agency,therefore, has chosen to propose aprovision in these regulations whichwould deny authorization to any Statewith such a ban.

Furthermore, States should note thatsection 112 of the Hazardous MaterialsTransportation Act (HMTA) of 1974(Pub. L 93-633) prohibits a State (or Itspolitical subdivisions) from imposingrequirements which are inconsistentwith the Federal Department ofTransportation (DOT3 regulations. Inaddition, HMTA authorizes DOT topreempt any State requirement if suchrequirement places an unreasonableburden on commerce. DOT, however,can only preempt State regulations forwhich DOT has existing authority andstandards. State regulations are notpreempted if they afford an equal orgreater level of protection to the publicand do not unreasonably burdencommerce. If preemption occurs, onlythe standard that places a burden oncommerce would be preempted, not theentire program.

PartialAuthorization. Approximatelythree-quarters of the comments receivedon partial authorization provision,which we're included in the February 1,1978 proposal, were opposed to partialauthorization on the grounds that itwould be burdensome and confusing tothe regulated community. EPAunderstands these concerns and hasdecided not to include the "partialauthorization" provision in thisproposed rule. The Agency intends toenter into cooperative agreements withStates to allow States to participatefully in the program as administered byEPA until such time as the Statebecomes eligible for authorization.Similar arrangements with severalStates have worked well for the NPDESprogram. .

Interim Authorization. Section 3006(c)of RCRA (as recently amended by Pub.L. 95-609) provides for a "interimauthorization" of State programs for upto two years "beginning on the date sixmonths after the [actual] date ofpromulgation of regulations undersections 3002 through 3005" (Emphasisadded.) This interim authorization couldbe granted to States with a hazardouswaste program substantially equivalentto the Federal program existing"pursuant to State'law before the dateninety days after the [actual] date ofpromulgation of regulations" undersections 3002 through 3005 (Emphasisadded). The recent amendment to RCRA(Pub. L. 95-609) allows the cutoff datesfor the existence of State legislation andthe onset of the interim authorizationperiod to be related to the promulgationof the bulk of EPA's other Subtitle Cregulations. Consequently, the phasingof the application for and imitiation ofinterim authorization is now based onthe actual promulgation date ofregulations under section 3001 of RCRA,since EPA intends to use this section asthe "trigger" for the Federal program.States are encouraged to beginevaluation of their legislation andregulations and to assess the adequacyof their programs. However, EPA willnot be able to formally act onapplications until after the promulgationof section 3001 regulations (40 CFR 250,Subpart A), due to the lack of areference point against which EPA canjudge a program. In granting interimauthorization. EPA will require the Stateto prepare an "authorization plan"which will describe the additions ormodifications to.the State programs,including changes needed in State legalauthority and a time schedule to achievechanges, so as to enable the State tobecome eligible for authorization.

The intent of RCRA as expressed inthe legislative history of RCRA. was toalloyi States to develop and implementhazardous waste programs equivalent(not necessarily identical) to the Federalprogram, thus utilizing the police powerof the States rather than creatinganother Federal bureaucracy toimplement RCRA. (House Report No.94-1491, September 9,1979, p. 30.) Stateprimacy is a common theme runningthrough the legislative history. (Op. cit,pp. 5, 6,24 and 29.) Interim authorizationwas specifically established undersection 3006(c) in order-to facilitateState assumption of the program. Therequirement for interim authorization of"substantially equivalent!, Stateprograms was used " * * (1) so thatexisting progress in the area of Statehazardous waste law does not come to

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an abrupt halt, as has been the situationwith the passage of other environmentallaws, and (2) to give such States that _have begun developing or implementinga hazardous waste program sufficienttime to bring such program intoconformity with the Federal minimumstandards." (Op. cit., p. 29). However,Congress neither defined what a"substantially equivalent" Stateprogram was, nor gave further directivesas to how EPA was to-set such "Federalminimum standards" without disruptingthe progress of existing hazardous wasteprograms.

EPA's proposed approach to thisproblem (see § 123.12) is as follows: Inorder to implement RCRA's legislativeintent of not disruptiig the progress ofexisting programs, EPA's proposedminimum Federal standards fordetermining "substantial equivalence"(and therefore suitability for interimauthorization) would require the Statesto implement (i.e., regulate and enforce)controls over at least either on-site oroff-site disposal of hazardous wastes.(See § 123.32). Note that this is aminimum requirement and that duringthe two-year period States mustimplement all statutory and regulatoryhazardous waste managementauthorities they possess. (For example,Stateswith interim authorization whichhave the necessary authorities inexistence to implement a manifestsystem and/or control of treatment and/or storage facilities must do so. See§ 123.34(a)(2)).

Since it is clear that Congressintended this interim period to provide a"grace" period to the States to develop'aprogram suitable for authorization of afull program, the majot differencebetween"'equivalent" (section 3006(b))and "substantially equivalent" (section3Q00(c)) State hazardous wastemanagement programs is that the latterprogram would reflect some of the.liiiitations of existing statutoryauthority at the State level. Similarly,the degree of stringency of a givenregulation may, during this interim"period, be less than Federal standards.This temporary relazation from strict"equivalence" to "substantialequivalence" and the correspondinglatitude in degree of stringency for theinterim period, EPA believes to beconsistent with the intent of Congress tofacilitate the entry by the maximumnumber of States into the interimhazardous waste management program,and ultimately, into a full program.

In the wake of such incidents as LoveCanal, public pressure for State primacyis increasing. Many States areincreasing their commitment of

resources.and developing programs; atthis time, it appears to be more prudentfor EPA to be as flexible as possible inorder to build on existing Stateprograms, than to hamper theirdevelopment. The proposed approachshould result in a greater degree ofprotection of public health and theenvironment than if-EPA had to conductthe hazardous waste program in a largenumber of States.

Before reaching this conclusion, theAgency gave special consideration totwo alternatives as requirements forinterim authorization. The first was torequire States to have authority tocontrol either the on-site or off-sitedisposal of hazardous waste, while thesecond was to require authority forbroader control. Analysis of currentState legislative authority indicates thatthe first alternative would allowsignificantly greater State participationin the hazardous waste programs thanwould the second. Furthermore, it isexpected that it will be easier for a Statewith interim authorization to upgrade itsprogram than it would be for anunauthorized State to take over a fullprogram. On the other hand, there couldbe a Significant risk to public health andthe environment in requiring States tocontrol disposal but not treatment orstorage. However, it is likely that thedegree of protection of public health andthe environment which States couldoffer by carrying out programscontrolling disposal while building theother elements wdld exceed the degreeof protection Which EPA could offer inattempting to implement a large numberof full programs in unauthorized Stateswith limited resources.

Although EPA recognizes that controlof treatment and storage facilities, fullcontrol of all disposal facilities, andother elements necessary forauthorization of a full program (such asimplementation of the manifest trackingsystem) are essential in a fullcomprehensive program of hazardouswaste management, the vast majority ofthe environmental damage has resultedfrom improper disposal. EPA alsorecognizes that the proposed approachdoes involve some risk that directcontrol of certain portions of thecomplete hazardous waste managementprogram could be deferred for as muchas two years (the maximum duration ofthe interim authorization period). Forexample, according to data based onnational averages, 80 percent of thequantity of hazardous wastes generatedis disposed on-site. These on-sitedisposal facilites amount for about 90percent of the total number of disposalfacilities in the nation. Current

information available to EPA on thestatus of State legislation andregulations in the 30 States whichgenerate most of the hazardous wastes,indicates that as many as three of theseStates lack statutory or regulatoryauthority to control on-site disposal andas many as seven States lack statutoryor regulatory authority to controltreatment and/or storage. Similarproblems might be encountered in theremaining smaller States.

The risk of non-regulation, however, Istempered by several factors. During thefirst six months after promulgation ofsection 3001 regulations, EPA will bereviewing proposed State programs aswell as conferring "interim status" undersection 3005(e) to all HWM facilities(see previous discussion of "interimstatus" under the RCRA portion of thePart 122 preamble). Receipt of theinformation necessary to confer "interimstatus" to facilities under section 3005(e)will provide EPA the basis for makingan assessment of which facilities maybe actual or potential violators ofFederal standards under the section3004 regulations (which call for anextensive set of requirements to be met.(see the interim status facility standardsof 40 FR 250.4(c) proposed December18, 1978, at 43 FR 58995). EPA Isempowered by section 3008(a) of RCRAto take direct enforcement actionagainst all hazardous wastemanagement facilities or activities on acase-be-case basis regardless of the typoof State authorization conferred. Inespecially egregious circumstances, EPAalso can enforce under the imminenthazard provisions of section 7003 ofRCRA. Finally, although direct Stateoversight of the manifest system Is not arequirement for interim authorization,EPA can use its enforcement powers tofollow up on noncompliance with

'national manifest requirements. (Seeprevious discusion of "manifests" underRCRA portion of Part 123 in thisPreamble).

Based on current information, It isexpected that very few States will be ina position to undertake the fullhazardous waste program when theSubtitle C regulations are promulgated,Additionally, some of those Stateswhich already have, or which will have,some type of hazardous waste programswhen the regulations are promulgatedwould prefer to control the programfrom the beginning, rather thanassuming a program that has beeninitiated by or operated concurrentlywith EPA. The proposed approach willminimize the disruption and uncertaintycaused by changing administration ofthe program. -4 .



Federal Register / Vol. 44. No. 116 / Thursday, June 14, 1979 / Proposed Rules

Comments are requested on thepossible alternatives for EPA regulationof activities that are'not regulated by theState during the interim authorizationperiod. EPA recognizes the potentialproblems with this arrangement. Thisconcept resembles that of "PartialAuthorization", which EPA rejected forthe reasons described above. Ths newconcept also has drawbacks. First, theregulated community has-strenuouslycontended that a single entity shouldcarry out the entire program in a givenState, arguing that a sharing ofresponsibility would result in confusionand duplication of effort for theagencies, and greatly increasedcomplexity for regulated firms. Second,the availability of this arrangementcould encourage some States capable ofqualifying for authorization, to take overonly selected program elements. Third,the delineation of responsibilitiesbetween the Regfon and the State wouldundoubtedly be a lengthy and difficultprocess. Finally, the existence of thisarrangement could remove some of theincentive for strenuous State effortstoward authorization. However, thisalternative would assure morecomprehensive control of all hazardouswaste facilities during the interimauthorization period.-Comments are also requested on the

alternatives of requiring control of alldisposal, or additional'elements of therequirements for full authorization underRCRA, and the impact this would haveon State participation.

Federal Role After Program Approval.Many comments were receivedconcerning the Federal role after a Statehas been authorized as outlined in theFebruary 1,1978 proposal. EPA hasprimary responsibility under RCRA forprotecting public health and theenvironment and is charged withdeveloping a consistent and effectivenational program to meet thisresponsibility. Thus, in authorizing Stateprograms EPA's prime concern is toensure that the State program is at leastas effective in controlling at least thesame universe of hazardous wastes asdoes the Federal program. The purposeof EPA's oversight activities, subsequentto authorization of a State program, is toensure that State programs are beingoperated in-accordance with theseregulations.

Federal oversight of State programs isconducted in a number of ways. TheAgency has encountered much interestand comment from States and others onthree specific aspects: reporting, reviewof permits, and facility inspections.

With regard to reporting, the -Agencyhas -chosen to reduce the number and

complexity of the reports required inthese regulations. Quarterly reports thatwill be required are: a list of majorfacilities out of compliance, and asummary of international shipments ofwastes. ForStates with InterimAuthorization a semi-annual report onprogress toward attaining authorizationwill be required. Finally, an annualreport, including a list of permit actionscompleted and summary information onwastes managed (quantities, types,method of management) is also required.It should be recognized that EPA has aresponsibility to develop and maintain anational data base on the generationand management of hazardous wastes.It may be necessary to negotiateadditional reporting requirements in theMemorandum of Agreement inparticular cases, such as in a State withan unproven program. TheMemorandum of Agreement is a moreflexible document than theseregulations, and can be changed toaccommodate expected changes in theneed for nationally significantinformation.

Concerning review of permits, theAgency could not possibly review allpermits issued by a State, nor is such areview necessary or desirable.Therefore, EPA will only review asufficient number of permit applicationsand draft permits to assure that theState permit program is being operatedin a sound manner consistent with therequirements of these regulations.Accordingly, these regulations requirethat authorized States forward to EPAcopies of permit applications, and draftpermits for major facilities only. (Thedefinition for "major" facilities isdiscussed earlier in The preamble).Normally, the number of draft pemits orpermit applications reviewed by EPAshould amount to about 10 percent of thetotal number of permits processed. Insome cases, where a history of soundprogram administration by a Stateexists; EPA may agree to reduce thislevel of review even further. In others,for example, where a State program isnew and inexperienced, the RegionalAdministrator may choose to reviewsome minor permits as well. In eithercase, such agreements should becontained in the Memorandum ofAgreemenL

These regulations in § 123.38 specifythe bases on which EPA will commenton permit applications and draftpermits. Reasons for each comment willbe given as well as recommendationsfor actions to be taken by the StateDirector to address each comment. TheState Director is also provided with the

opportunity to respond to EPA'scomments.

In regard to EPA's conductinginspections of facilities, § 123.37specifies the provisions which will beincluded in the Memorandum ofAgreement, normally includingnotification before EPA conductsinspections, and opportunity for Statesto investigate situations where EPA hasreason to believe that violations may beoccurring.

Comments are solicited on thepracticality and impact of these andother oversight procedures.

National Enforcement InformationSystem. EPA is aware of the need tocentralize reported informationconcerning hazardous wastes by boththe Agency and authorized States. It isnecessary for enforcement compliancemonitoring purposes to have a singlesystem which contains all thisinformation. Therefore, EPA isconsidering requiring, as a condition ofauthorization, that each State applyingfor such authorization either (1) agree toinsert its reporting data directly intoEPA's national ADP system (discussedearlier in the-preamble under Manifests)or (2] allow EPA to so input the data forthe State. The National ADP system isbeing designed so that any such Statemay use this system for its own purpose.Comments are solicited on theadvantages and disadvantages of such arequirement.

Subpart CSubpart C sets forth additional

requirements for State programs as wellas the procedures EPA will use in takingthe required approval, disapproval orpartial approval actions on UICprograms under sections 1422(b) and (c]of SDWA.

Flements of an Approvable State UICprogram. In order to obtain EPAapproval for primacy, a State mustdemonstrate the ability, adequate legalauthority and resources to implementthe following program elements:

* Designate underground sources ofdrinking water within the State;

9 Develop and maintain an inventoryof injection wells;

• Issue permits or rules thatincorporate requirements of Part 146;

e Issue permits which includeconditions that incorporate UICrequirements for monitoring,recordkeeping and reporting by thepermittee;

e Conduct a program of enforcement,inspection and surveillance of injectionwell facilities.

EPA-opproval The Administrator is toapprove, disapprove or partialy

L II ill

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approve State participation in the UIC will promulgate the whole UIC programprogram within 90 days of the receipt of for the State within one year (270 daysa complete State application by the plus 90 days approval process) of theState. Prior to ruling on the application, effective date of these regulations or ofEPA must also provide the opportunity 40 CFR Part 146 (proposed at 44 FRfor public comment and hearings.. 23738 (April 20, 1979)), whichever is

A State need not develop a regulatory later.program for a type of injection well that Oversight-EPA has a statutory dutydoes not exist in that State. In such case, to oversee State UIC Programs. Tohowever, the States must show it has enable EPA to carry out thisadequhte legal authority to initiate a responsibility, Part 123 requires Statescontrol program should such wells seek t6 provide to the Agency the following;to operate in the State in the future. e Access to State files andComments are solicited on this documents;approach. EPA is particularly concerned 0 Annual reports;whether States could develop a control * Quarterly reports on the complianceprogram quickly enough to issue proper status of major wells;regulations where a new type of well * A nid-course review after the firstinjection operation commences in a year of program operation to assess theState. requirement to perform corrective action

Unlike the other programs covered by in the area of review. The State analysisthis Part, EPA may in its discretion, will be used by EPA to assess theapprove a State UIC program in part. In associated costs and environmentalthe case of partial approval, the benefits, and may result in appropriateAgency's intention is to approve only a changes in the requirement.complete program by type of well. In In addition, under SDWA the Agencyother words, EPA would authorize a is given the authority to enforce againstState to regulate, for example, Frasch program violations if the State fails toprocess mines or hydrocarbon storage enforce adequately.'wells If it had the necessary legal Procedures for the withdrawal ofauthority and were prepared to carry approval from a State program provideout the full range of-regulatory the State with the opportunity to presentrequirements applicable to such wells. its case that withdrawal is notHowever, the Agency does not intend to warranted. If the Administrator hasapprove a portion of a State program if cause to believe that a State is not inthe program provides only for partial compliance with the SDWA or theseregulation, i.e., it provided for State regulations, he must give the State 30issuance ofpermits to Frasch process days of notice to demonstrate itswells but left enforcement up to EPA. compliance. If not satisfied, theThe Agency believes that this 'approach Administrator must convene a publicis sensible from an administrative point' hearing not less than 60 days afterof view and is least confusing to the notice of the hearing. If, after theregulated community and public hearing, the Administrator concludesComments are soicited on the .. that the State is not in compliance, headvisability of this approach. must notify the State of the particulars.

Finally, it should be noted that the The State then has 90 days to give up1977 amendments to the Safe Drinking the program or come into compliance.Water Act have clarified State authority This process for withdrawal is differentover Federal facilities within its from the withdrawal process for theboundaries (sections 1477(a) and other programs covered by Part 1231422(b)(1)(D) of SDWA). Nonetheless, because of the difference in the statutesmanagement of wells on Indian lands involved.remains an EPA responsibility unlessthe State has adequate authority to Subpart Dimplement the program (SDWA section -This Subpart sets forth requirements1477(c)). which are unique to the NPDES which

In cases where the State is developing supplement the Subpart A requirements.an application for primacy, EPA intends For a further discussion of the NPDESto promulgate the UIC program for requirements see the preamble to thosewhich it is responsible (i.e., on Indian regulations.lnds) at the same time as the approvedState program becomes effective, i Sup Ecases where a State program is The first 14 sections (§ § 123.9-123.104)disapproved, EPA will promulgate a UIC of this Subpart were promulgated in Partprogram within 90 days from 123 of the NDPES regulations and, likedisapproval in whole or in part. If a Subpart D, are discussed in the preableState informs EPA that the State does to those regulations. The onlynot intend to adopt a UIC program, EPA exceptions are § 123.98, transmission of

information to EPA, which has beenchanged and § 123.99, which Is nowcontained, in changed form, in § 123,110.The remaining sections (§§ 123,105-123.112) are being proposed for the firsttime and were to be promulgated as Part126 until the decision was made toincorporate it into these consolidatedregulations. There will be no Part 120,

Although the final NDPES regulationsspecify that State section 404 programsmust designate one agency to beresponsible for issuing permits(§ 123.4(b)(1)), the Agency isreconsidering this position and invitesfurther comment on this requirement(§ 123.95(a)). In particular, the Agencywould like to receive comments onwhether such a requirement wouldinterfere with State efforts to coordinateand consolidate their own permitprograms.

The following are major provisions ofSubpart E:

Application procedures § 123.105. Thespecific informationrequired of allapplicants is discussed, as well asgeneral application procedures, Publicnotice must be published for all permitapplications, except when a draft permitmust be prepared, and all permitdenials. Since, in most instances, EPAand the public will revigw only permitapplications, detailed applicationinformation is required.

Draftpermits. Section 123.98(c)provides that the State section 404programs may circulate permitapplications for public and EPA reviewand comment, in most instances,However, in some cases the State willbe required to reach a tentativedetermination and formulate a draftpermit (where the tentativedetermination is to issue a permit) forpublic and EPA review and comment. (Itshould be noted that all the otherprograms covered by these proposedconsolidated regulations are required toformulate draft permits in all cases)

Draft State 404 permits are requiredfor.

(1) Discharges which may affect thewaters of another State;

(2) Major discharges;(3) Discharges into critlcal areas such

as National Parks and Wildlfe refuges;(4) General permits: and(5) Discharges containing toxic

pollutants in toxic amounts andhazardous substances in reportablequantities.

Comments are solicited on this list(which is also the list of activities forwhich EPA will not waive its right toreview State permits). In particular, EPAwould appreciate comments on thefollowing issues:

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(1) What discharges should. beconsidered "major"? In this regard EPAis considering acreage limitations whichmight vary in different parts of thecountry. Other discharges may beconsidered major based on differentcriteria.

(2) Should the list of critical areas beexpanded to include others?

(3) Are the criteria that toxicpollutants be present in toxic amountsand hazardous substances in repoitablequantities proper? EPA believes that acut-off is necessary since many.discharges which contain tracequantities of these substances are not ofconcern. In-addition, the criteria must beclearly defined and workable.'On thisbasis, EPA rejected formulations of thislanguage which were couched in termsof "significant" of "substantial" sincethese may not be readily meaningful inthe context of a particular discharge.

Waivers. EPA solicits comments onthe extent to which the Agency shouldcontinue to receive permit applicationsand permits from a State for thosedischarges the Agency has waivedreview.

Genera lpermits. Procedures forpublic notice of proposed generalpermits, review of proposed permits,issuance and enforcement are includedin § 123.106.

Coordfiation procedures. The StateDirector must assure coordination ofpermit with appropriate Federal andFederal-State water-related planningand review processes, as required bysection 404(h)(1](H) of CWA.Requirements for implementing suchcoordination are in § 123.110.

Review procedures. All permitapplications or draft permits are subjectto review by EPA and the public(although under § 123.92 EPA may waivesuch review in many cases). During thereview process, the RegionalAdministrator provides opportunity forcomment by the Corps of Engineers, theFish and Wildlife Service and theNational Marine Fisheries Service, aswell as from other interested Federalagencies, and these must be consideredin his or her review.Waters Subject to State Regulation

Under section 404(g) (1) of CWA, theCorps of Engineers will, in all cases,retain jurisdiction over disposi ofdredged or fill material into thosewaters of the United States, togetherwith their adjacent wetlands, that aresubject to the ebb and flow of the tideand/or are presently used, or may besusceptible to use for interstatetransport or foreign commerce. A Statemay apply for a section 404 authority to

regulate all other waters within theState. As a prerequisite for programapproval (§ 123.93) an agreement Is-required between the State and theCorps of Engineers, which sets forth adescription of those waters over whichthe Corps of Engineers will retainjurisdiction, and those waters overwhich the State will have jurisdiction.

Major Issues

(1) An earlier formulation of theseregulations provided for preparation bythe States of a draft and proposedpermit prior to Federal review. Severalreviewers expressed concern thatprocessing procedures, and in particular.the processing schedule for permits,were unnecessarily lengthy andcomplex. EPA's specific concerns (basedon comments received) included-

(a) The three-stage process wouldsubstantially extend the time required toprocess applications. The 1977amendments to the CWA. together withits legislative history, establish a strongsense of Congressional insistence on theelimination of unnecessary delay insection 404 permit processing.

(b) Due to the nature of activitiesregulated under section 404, EPAbelieves that public participation andright to comment will usually beadequate if the permit application iscirculated rather than a draft permit.

The proposed regulation has beenredrafted to eliminate the "draft permit"and the "proposed permit" stages inmost instances, except as describedabove, and thus to provide for-publicand agency review input during a singlecontinuous period that normally will notexceed 90 days from receipt of thepermit application. Safeguards wereadded to ensure that permit applicationsare complete. To ensure that there isadequate basis for review of specificprojects provision was made for theRegional Administrator to requiresubmission of additional information,including a draft or proposed permitwhere appropriate. EPA believes thatthis process more nearly accords withthe overall Congressional emphasis ontimely processing of section 404 permitapplications, and is consistent withmeaningful review. However, thisapproach differs from the otherprograms under this part, which requirepreparation of a draft permit in all casesas a basis for public comment.Comments on this issue are solicited.

(2) By far the most controversial issueraised in the review of this proposedregulation was the interpretation ofsection 404(f(l])(A) of the CleanWaterAct, as treated In § 123.107 of theproposal. Section 404(f][1)(A) provides

that discharges of dredge or ill materialin connection with certain activitiesenumerated in section 404(fj[1](A]through (F) are not subject to regulationunder the 404 program, with the caveatin section 404(f)(2) that any discharge ofsuch material incidental to any activityhaving as its purpose to bring an area ofnavigable waters into a use to which itwas not previously subject, where theflow or circulation of navigable watermay be impaired or the reach of suchwaters maybe reduced, will require a404 permit.

The background and legislativehistory of section 404(f](1](A] isexceedingly complex and has led toseveral schools of thought on what thesection really means. At one extreme,proponents of a liberal interpretationargue that section 404(f)(1)(A] exemptsall, or virtually all, discharges ofdredged or fill material associated inany way with agricultural, silviculturaland ranching activities, except wheresuch activities are recaptured by section404(f)(2). Under this view, neither theword "normal" nor the specific activitieslisted significantly limit the scope of theexemption. A more moderate view isthat the word "normal" is intended tosignify that the exempted farming,silvicultural. and ranching activitiesmust be established and ongoing, andthat the exemption only extends to theparticular activities named in the statuteor other activities of similar character.At the other extreme, proponents of aconservative interpretation take theview that section 404(f)(1)(A) refers toactivites which do not involvedischarges (either because no earth ismoved, there is no point source, or nowaters of the United States areinvolved), and that such activities arenot merely exempt (e.g., still subject to(f)(2). but rather are excluded entirelyfrom regulation under section 404. Underthis view, activities which are notexcluded will always need a permit.There are several variations of theseinterpretations which incorporatecomponents of both the exclusion andexemption approaches and construe thelisted activites in various ways. Theinterpretation of section 404.(- isexceptionally complex, especially sinceno one view is consistent with both theliteral language of the statute and all theoften ambiguous and conflictinglegislative history.

These regulations follow a middleground. Section 123.107 specifies thatany discharge "that may result from" thenamed activities "is not prohibited by orotherwise subject to regulation." exceptwhen recaptured by the provisions ofsection 404(f)(2). The proposed

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regulation defers to the language of thestatute, which when taken literally,clearly contemplates that discharges ofdredge or fill material may occur inconjunction with the activities listed in'(f)(1)(A). The practical effect of thislanguage is to assure that such activitiesare not subject to the permitrequirement, whether or not any actualdischarge or dredge or fill material isassociated with them. Consistent withsection 404(f(2), however, the regulationprecludes any such exemption where anactivitly involves the discharge ofmaterials containing any section 307(a)toxic substance; or, any dischargeincidental to an activity which convertswaters-of the Untied States to new uses,where flow or circulation may impairedor the reach of the waters reduced.

The proposed regulations interpret theexemption in 404(f)(1)(A) as applicableonly to the activities7 named in thestatute and other activities of essentiallythe same character as those named. Thisinterpretation derives from the "suchas" language of (f)(1)(A), which in EPA'sview, precludes the extension of theexemption for "normal farming,silvicultural, and ranching activities" toactivities that are unlike those named.Support for this position is seen inparagraphs" (C) and (D) of subsection (f),which provide for specific farming andsilvicultural exemptions in addition tothose in (f)(1)(A). If (f)(1)(A) intended anacross-the-board exemption foragricultural, silvicultural, or ranchingpractices, there would have been noneed for the additional specificexemptions of (f)(1) (D) and (E).

Part 124-Procedures for Decision-making

What Does This Part Do?

Proposed Part 124 establishes theprocedures EPA will use in issuingRCRA, tUIC, PSD and NPDES permitseither separately or in combination witheach other. It sets the framework forreceiving permit applications, writingdraft permits, soliciting public commenton them, and issuing the final permit.Where NPDES permits are concerned,this Part also contains the proceduresfor conducting evidentiary hearings.These include both procedures for ihetraditional evidentiary hearing (SubpartE) and special procedures for "initiallicensing" (Subpart F). (As discussedbelow, EPA believes that evidentiaryhearings are not required for issuance ormodification of RCRA, UIC and PSDpermits.) Some of the requirements ofthis Part are made applicable by Part123 to States with approved permitprograms.

In addition, this Part includesprocedures for issuing permitsimplementing the "prevention ofsignificant deterioration" (PSD)provisions of the Clean Air Act. Theseprocedures are very similar to thosepresently contained in 40 CFR 52.21(r).No parallel requirements have beenincluded in Parts 122 and 123 becausethe established mechanisms forapproving State programs under theClean Air Act are somewhat differentfrom those for approving other permitprograms. Consolidating the proceduresis the aspect of consolidation with mostimmediate benefit to those affected;EPA will explore the possibility of morecomprehensive consolidation in thefuture.

Subpart A

Basic Permit Issuance Procedures

Under the permitting proceduresestablished by the Part, permits mustfirst be applied for in accordance withpermit application requirements setforth in Part 122, (or 40 CFR 52.21 in thecase of PSD permits). After receipt of acomplete application a draft permit willbe prepared under § 124.6. This permit -must be accompanied by a "fact sheet,"for "major" permits, explaining the basisfor the draft permit in some detail under§ 124.9. A "statement of basis" must beprepared for all other permits under§ 124.8. Because there are practicallimits to EPA's ability to explain each ofthe permits it issues in comprehensivedetail, the discussion in the fact sheet orstatement of basis should beproportional to the importance of theissues involved and the degree ofcontroversy surrounding them.Modifications to permits and processedas draft permits in accordance with§ 124.6, under the requirenients of§-124.5 and § 124.7, except or minormodifications as described under§ 122.9(g).

Under § 124.10, an "administrativerecord" must be assembled, containingappropriate supporting documents.When the draft permit has beenformulated and public notice is issuedunder § 124.11, § § 124.12 and 124.13provide for a comment period and, insuitable cases, a public hearing. Thisprocess will provide a forum for anyinterested persons to bring forward anycomments or questions they may haveabout the draft permit or its supportingmaterials. After the comment period hasclosed, EPA will prepare aid issue thefinal permit under § 124.17. It will beaccompanied by a response to all thesignificant comments received under§ 124.19. This response to comments

plus any additional supporting materialwill constitute a final administrativerecord for the final permit under§ 124.20. When the final permit has beenissued, there will be an opportunityunder § 124.21 for discretionary reviewof RCRA, UICand PSD piermits by theAdministrator. In the case of NPDESpermits, there will also be anopportunity for an evidentlary hearingand opportunity for appeal to theAdministrator following the evIdentiaryhearing under Subpart E or F.

A few of the provisions of Part 124,particularly those affording basic publicparticipation in permit issuance, areapplicable to State programs (except forState PSD programs). States mustprepare a draft permit, provide publicnotice and opportunity for a hearing andallow the public 30 days to comment onthe draft permit before final permitissuance. A statement of basis or factsheet (for major permits) is alsorequired.

Hearing Requirements for RCRA, UIC,PSD and NPDES Programs

The procedures for issuing RCRA, UICand PSD permits are relatively moresimple than those for NPDES permitsboth because the programs are newerand because the underlying statutes arenot as detailed as the applicableprovisions of the Clean Water Act. Themajor difference between theprocedures for these three programs andthose for the NPDES program is that noprovision for the traditional form ofevidentiary hearing is made for RCRA,UIC or PSD permits, while a fullevidentiary hearing (under Subpart E orF) is required for NPDES permits.

Three Courts of Appeals have heldthat the Clean Water Act requires anevidentiary hearing before NPDESpermits can be issued. However, thesedecisions rested largely on specificinterpretations of the language of theClean Water Act, and EPA does not,believe that the other three statutescontain analogous provisions. To theextent the decisions expressed abroader concern for reasoned anddocumented decision-making, EPAshares that concern and believes thereare alternative and preferable ways ofsatisfying it.

Unlike the Clean Water Act, theResource Conservation and RecoveryAct does not explicitly require any"hearing" at all before issuing permitu.Section 3008(b) of RCRA provides whatEPA interprets to be an adjudicatoryhearing for permit revocation, butneither this section nor any other

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provides any procedures for permitissuance.*

Similarly, there is no requirement insection 1422 of the Safe Drinking WaterAct that any hearing is a prerequisite toEPA issuance of a UIC permit. WhereCongress intends that a hearing mustprecede issuance of a permit, theintention is manifest in the language ofthe Act, as in the requirement for ahearing on the record for Statepermitting under section 1421(c)(2)(temporary permits) and section 1424(interim permits). Additionally, sincesection 1421(b)(1) of SDWA authorizesState regulation of undergroundinjection by rule as well as by permit,Congress could not have intended forinformal rulemaking procedures to applyto the former, but trial-type proceduresto apply to the latter.

Section 165 of the Clean Air Act doesrequire a hearing before PSD permits areissued, but the text of the statute makesclear that a formal adjudicatory hearingwas not intended. See 165(a](2). Noperson who commented in the extensiverulemaking leading up to promulgationof EPA's current PSD regulations allegedthat the statute required a formalhearing.

When the statute does not require anyhearing at all, the traditional rule ofthumb is that evidentiary procedures arenot required even for licensing. EPAtakes the silence of these statutes onnecessary EPA permitting procedures(or the explicit rejection of adjudicatoryhearings, in the case of PSD], as aninvitation to the agency to developpermitting procedures that areexpeditious and informal and stillsatisfy the requirements of due processand sound administrative procedure.Accordingly, EPA has developed theprocedures in these proposedregulations which are described below.These should be enough to allow athorough ventilating of the facts andpolicy choices at issue in any permitproceeding.

Coordination of One Pernit ProgramWith Another

A major purpose of these regulationsis to-provide as much coordination asfeasible between the permit programscovered. To some extent, this should beaccomplished simply by the parallelstructure of these regulations in general,

* One pre-proposal comment argued that thereference to'"order" in section 3008(b] make ahearing necessary since the granting of an initiallicense may be an "order" under the APA. However.the term is clearly used in section 3006 as asynonym for the "compliance orders" described Inparagraph (a], and nothing more. See, e.g. section3008[c). which is entitled "Requirements ofCompliance'Orders" and then immediately uses"order" as a synonym.

and of the common procedures in Part124 in particular. In addition, theseregulations provide several specificmechanisms for closer integration ofpermit decisions:

Under § 124.4, facilities or activitieswhich will need a permit under morethan one of the programs covered willbe able to delay filing the applicationsdue first in order to consolidate themwith the application due last, byproviding EPA with written notice ofintent to delay the filing date. Part Aapplications under the RCRA programare excluded from this provisionbecause the submission of a Part ARCRA application triggers interim statusunder section 3005 of RCRA, and interimstatus is only available for a limitedperiod. PSD applications are alsoexcluded from this provision. BecauseEPA is currently allocating increment ona first-come, first-served, basis (43 FR26401, June 19,1978), postponement of asource's application date could causedelay in processing later applications ,from other sources. This provision couldalso present an opportunity for abuse byapplicants seeking unfairly to reserveincrement in the future and to escapethe requirements imposed forconstruction of a source that wouldaffect certain non-attainment areas afterJuly 1, 1979. Such an applicant couldattempt to unfairly reserve incrementand escape the July I deadline byclaimi4 that since its full applicationhad properly been postponed under thissection, it should be treated as havingbeen filed earlier. EPA specificallysolicits comments on this exclusion ofthe PSD program. EPA solicits commentson this general approach, and whetherthere are certain other categories ofpermit applications that should not bedelayed for purposes of consolidation.

The regulations provide explicitly forjoint issuance of draft permits for afacility or activity which requirespermits under more than one statute,joint comment periods, and jointhearings. Where EPA Is Issuing all thepermits, it may elect to choose thisconsolidated route at any time. Whereresponsibilitys divided between EPAand a State, the regulations encouragesuch joint proceedings by mutualagreement. EPA solicits comments onthis approach, and whether there arecertain other categories of permitapplications that should not be delayedfor purposes of consolidation.

These regulations also prescribe waysto coordinate the traditional evidentiaryhearing portions of the NPDESprocedures with the "hybrid"procedures that will be used to makeRCRA, UIC and PSD permit decisions.

Briefly, they allow the initial commentproceedings on the draft permit tobecome formal when that might avoidthe need for a subsequent evidentiaryhearing, and allow NPDES evidentiaryhearings to consider matters relating toRCRA. UIC and PSD permit decisionswhich are indissolubly linked to thedecision on the NPDES permit. Theythus provide some limited flexibility toshift the consideration of issues backand forth between the two stages ascircumstances dictate. Although staysbased on cross-effects are possibleunder certain limited circumstancesunder § 124.18, the general pattern willbe that RCRA and UIC permits will notbe stayed while an evidentiary hearingon an NPDES permit issued to the samesource Is in progress. However, a stay ofcontested PSD permit term(s) isunavailable under proposed § 124.18.Review of a PSD permit is uniquelydependent on the resolution of earlierPSD applications because of the first-come, first-served allocation schemebeing employed by EPA for thesepermits. The stay provisions of § 124.18might seriously impede the ability ofEPA to process later PSD applications.expeditiously.

Where the new "initial licensing"procedures for NPDES permits can beused, a much greater degree ofprocedural consolidation should bepossible. Here the regulations providethat all permits which have beenconsolidated with the NPDES permitshall simply be passed through the sameprocedures as the NPDES permit. EPAexplicitly invites comment on whetherthis approach might "overjudicialize'"the process of issuing RCRA, UIC orPSD permits, and on alternativeapproaches that might be acceptable.

Relationship of Subpart A to the FinalPDFS Regulations, Part 124

The final NPDES regulations that wererecently promulgated contain a numberof requirements that are similar, but notIdentical, to those required for all threeprograms in Subpart A. Changes to thePart 124 procedures for the NPDESprogram are the result of an effort toprovide uniform procedures for theissuance of permits that accommodatethe programmatic and statutoryrequirements of all three permitprograms. These changes include:

Consolidation of Applications. NPDESpermit applications can now beconsolidated under § 124.5 with permitapplications for other programs, andapplication deadlines may be delayedfor purposes of this consolidation.

Statement of Basis and Fact Sheet.The statement of basis required for

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3 Federal Register / Vol. 44, No. 116 / Thursday, June 14, 1979'/ Proposed Rules

NPDES permits under the Consolidatedregulations is the same as that required"under the final NPDES regulations(§ 124.33). However, the requirementsfor fact sheets required for major NPDESpermits have been changed slightly toenable the establishiment of commonrequirements. The changes were mostlyin the nature of providing more generalrequirements than those applicable toNPDES fact sheets in the final NPDESregulations. Certain additional uniqueNPDES requirements for fact sheets areprovided in Subpart D, and these areidentical to those required under thefinal NPDES regulations.

Public Hearings. 'the public hearingrequirements in § 124.13 of theconsolidated regulations areconsiderably more detailed than thoseprovided under the final NPDESregulations (see § 124.42), and containadditional requirements that aredesigned to provide proceduralsafeguards for the issuance of RCRA,UIC and PSD permits, which do notrequire evidentiary hearings. NPDESpermits must nonetheless be subject tosubsequent evidentiary hearings underSubpart E of these regulations whereNPDES permit provisions are contested.Where related permit provisions arecontested under NPDES, RCRA, UIC orPSD permits for the same facility oractivity, these provisidnl may beconsolidated in the NPDES evidentiaryhearing to facilitate decision-making onthe related issues.

Subpart B-Specific ProceduresApplicable to RCRA Permits

One additional requirement for RCRApermits is provided in Subpart B. Publicnotice of the receipt of a permitapplication for a major hazardous wastemanagement facility is required under§ 124.31, in addition to the public noticeof the issuance of a draft permitrequired under § 124.11. This additionalnotice will provide both States and thegeneral public with early notice of arequest to permit a hazardous wastemanagement facility and shouldfacilitate coordination with Stateprograms regarding the issuance of apermit to a facility located in that State.The permitting and siting of thesefacilities is expected to be controversialin some areas of the country, and thissection seeks to ensure full publicparticipation in the permit decisionprocess.

In addition, a summary of significantpermit applications may be preparedand will be made available uponrequest.

Subpart C-Specific ProceduresApplicable to PSD Permits

Incorporation of the PSD permitrequirements into this Part is not meantto change the structure of the program.currently set forth at 40 CFR 52.21. Theprocedures set forth at 40 CFR 52.21(r),which is the analogous provision of thatsection, are very similar to the ones inSubpart A.

One specific provision has beenincluded in this Subpart. It provides thatPSD applications from small sourcesshall be processed expeditiously underthe existing Part 52 regulations.

In the past, determinations by EPAthat a source was required to apply for aPSD permit have been litigated as finalagency action. EPA believes that in mostcases such litigation represents anavoidable waste of judicial time andconflicts with the principles ofadministrative primary jurisdiction.Accordingly, the approach implicitlyadopted by these regulations is that thedetermination that a source must applyfor a PSD permit is not reviewable whenit is made. Instead, the source maychallenge that threshold determinationduring the permit issuance process -anda final decision will be made at the timeof the final decision of other issues.

In some cases such as those in whichthe threshold determination raisespurely legal issues, this course may notbe appropriate. In most cases theRegional Administrator will be able todesignate the threshold determination asfinal action subject to immediatejudicial review by publishing it in theFederal Register. See section 307(b) ofthe Clean Air Act.

Subparts D, E and F-SpecificProcedures Applicable'to NPDESPermits

These Subparts contain a number ofadditional requirements for NPDESpermit processing that are largelyunique to the Clean Water Act and theNPDES program, including evidentiary'hearing procedures. They incorporatewithout substantive changerequirements contained in the finalNPDES regulations that were recentlypromulgated.

Note.-The final regulations for Parts 122-124 will include a plan to evaluate it withinfive years of implementation. The plan willdescribe criteria for assessing the degree ofsuccess of the regulations. The sources ofdata that will be used to evaluate theregulations under these criteria, and theresources anticipated as necessary to gatherand analyze the data and conduct thereviews.

The Environmental Protection Agencyhas determined that this document,

except for the UIC and RCRAprovisions, does not constitute a majorregulation requiring preparation of aneconomic impact statement underExecutive Order 12044.

Analyses of the environmental,economic and regulatory impacts of theentirety of Subtitle C, RCRA, HazardousWaste Management (including theRCRA programs in Parts 122-124proposed) and on the UIC program arebeing or have been performed.

Drafts of the Environmental ImpactStatement and the Economic ImpactAnalysis on the RCRA program areavailable by contacting:Ed Cox, Solid Waste Information Office,

Environmental Protection Agency, 20 WestSt. Clair Street, Cincinnati, Ohio 42500(513-884-8491].

In addition, copies of these RCRAdocuments are available for review Inthe EPA Library Reading Room, Room2404, Waterside Mall, 401 M Street, SW.,Washington, D.C., and in the EPARegional Office libraries. Comments onthese documents must be received on orbefore September 12,1979. Finalversions of these documents will beissued at the time of promulgation of theRCRA Part 250 regulations.

Comments and the followingsupporting documents on the UICprogram will be available for publicinspection and copying at a reasonablefee during normal business hours at theEnvironmental Protection Agency,Public Information Reference Unit,Room 2922, 401 M Street, S.W.Washington, D.C. 20460. Copies of thesupporting documents will also beavailable for inspection and copying Inthe Library at the ten EPA RegionalOffices.

The supporting documents are:1. "Analysis of Costs Underground

Injection Control Regulations, Class Iand Class Ill."

2. "Methods and Costs for Inventoryand Assessment of Injection WellsCovered Under Classes IV and V."

3. "Estimated Cost of Compliance,Proposed Underground Injection ControlProgram Regulations, Class II Wells."

4. "Draft Environmental ImpactStatement-State Underground InjectionControl Program, Proposed Regulation,"

5. "Supplement to Draft EIS,.Reproposed Regulations."

Dated: June 4, 1979.Douglas M. Costle,Administrator.

1. It is proposed to revise Parts 122,123 and 124 as follows:

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PART 122-PROGRAMDESCRIPTIONS: THE HAZARDOUSWASTE PERMIT PROGRAM; THEUNDERGROUND INJECTIONCONTROL PROGRAM; THE NATIONALPOLLUTANT DISCHARGEELIMINATION SYSTEM; AND THE 404DREDGE OR FILL PROGRAM

Subpart A-General Program Requirements

Sec.122.1 Purpose and scope.122.3 Definitions.122.4 State authorities.122.5 Signatories to permit program forms.122.6 Application for a permit.122.7 Permit issuance; effect of a permit122.8 Duration of permits; continuation of

expiring permits; and transferability ofpermits.

122.9 Review and modification orrevocation and reissuance of permits.

122.10 Termination of permits.122.11 Conditions applicable to all permits.122.12 Schedules of compliance.122.13 Establishing permit terms and

conditions.122.14 Recording and reporting of

monitoring results and compliance bypermittees.

122.15- Noncompliance reporting.122.16 Confidentiality of information.

Subpart B-Additional Requirements forHazardous Waste Programs Under theResource Conservation and Recovery Act122.21 Purpose and scope.122.22 Law authorizing hazardous waste

control program.122.23 Application for a permit.122.4 Establishing permit terms and

conditions.122.25 Special HWM facility permits. -122.26 Permits by rule.1227 Reporting requirements.122.28 Emergency Authorization.

Subpart C-Additional Requirements forUIC Programs Under the SDWA122.31 Purpose and scope.122.32 Law authorizing UIC program.122.33 - Designation of underground drinking

water sources.122.34 Classification of injection wells.122.35 Authorization of underground

injection by rule.122.36 Authorization of underground

injection by permit.122.37 Area permits.122.38 -Corrective action.122.39 General Prohibition against

movement of fluid into undergroundsources of drinking water.

122.40 Temporary Authorization.122.42 Establishing UIC permit terms and

conditions.122.43 Noncompliance reporting.122.44 Special Requirements for wells

managing hazardous wastes.122.45 Elimination of all clags lV wells.122.46 Inventory of class V wells.

Subpart D-Additional Requirements forNational Polutant Discharge EliminationSystem Programs Under Clean Water Act122.61 Purpose and scope.122.62 Law authorizing NPDES permits.122.63 Exclusions.122.64 Application for a permit.122.65 Effect of an NPDES permit.122.66 Duration of permits.122.67 Prohibitions.122.68 Additional conditions applicable to

NPDES permits.122.69 Applicable limitations, standards,

prohibitions and conditions.122.70 Calculation and specification of

effluent limitations and standards.122.71 NPDES requirements for recording

and reporting of monitoring reports.122.72 NPDES noncompliance reporting

requirements.122.73 Modification or revocation and

reissuance of NPDES permits.122.74 Termination of NPDESpermits.122.75 Disposal of pollutants into wells, into

publicly owned treatment works or byland applications.

122.78 Concentrated animal feedingoperations.

122.77 Concentrated aquatic animalproduction facilities.

122.78 Aquaculture projects.122.79 Separate storm sewers.122.80 Silvicultural activities.122.81 New sources and new dischargers.122.82 NPDES general permit program.122.83 Special considerations under Federal

law.Appendix A-Point Source Categories and

Permit Expiration Dates.Authority. Resource Conservation and

Recovery Act, 42 USC 6901 et seq.; SafeDrinking Water Act, 42 USC 3001 et seq.; andClean Water Act. 33 USC =I51 et seq.Subpart A-General Program

Requirements

§ 122.1 Purpose and scope.

(a) The regulations in this Part definethree permit programs adnlinistered byEPA. They apply to the permit programsas they are administered by approvedStates, to the extent incorporated byreference in Part 123. These permitprograms are:

(1) The Hazardous Waste PermitProgram (the RCRA Program) undersection 3005 of the Solid Waste DisposalAct as amended by the ResourceConservation and Recovery Act of 1976(Pub. L 94-580, as amended by Pub. L95-&09) (RCRA);

'(2) The Underground Injection ControlProgram (the UIC Program) undersection 1421 of the Safe Drinking WaterAct (Pub. L 93-523, as amended by Pub.L 95-190] (SDWA]; and

(3) The National Pollutant DischargeElimination System (the NPDESProgram) under sections 318,402 and405(a) of the Clean Water Act (Pub. L.

92-500, as amended by Pub. L 95-217and Pub. L 95-576) (CWVA].

(b) These regulations also apply toState section 404 programs under CWAas set out in Part 123.

(c) The consolidation of these permitprograms into one set of regulations isauthorized by sections 101(f) and 501(a)of the CWA. sections 1006 and 2002 ofRCRA. and section 1450 of SDWA.

(d) The regulations in Parts 123,124,125,146 and 250 also apply to the RCRA,UIC, NPDES and section 404 permitprograms in the following manner.

(1) Part 123 describes therequirements for State participation inthese programs;

(2) Part 124 describes the proceduresfor issuing permits. These proceduresapply in their entirety to EPA and in partto approved States as described in Part123; and

(3) Subchapter N of this Chapter andParts 125146, and 250 describe -technical criteria and standards fordeterminations under the NPDES, UICand RCRA programs, respectively. They,apply to both EPA and State programs.The technical criteria of 40 CFR Part 230apply to State section 404 programs.

(e) The regulations in this Part and inParts 123 and 124 establish therequirements for public participation inthe State permit issuance process and inthe approval of State RCRA. UIC,NPDES, and 404 programs. Theserequirements carry out the purposes ofthe public participation requirements of40 CFR Part 25, and supercede therequirements of that Part as they applyto actions coiltained under Parts 122, 123and 124.

§ 122.3 Definitions.The following definitions apply to this

Part and to Parts 123. 124 and 125. Termsnot defined in this Part shall have themeaning given by the appropriate Act

(a) General defkntions

"Administrator" means theAdministrator of the United States -Environmental Protection Agency, orhis/her designee.

"Application" means the EPAstandard national forms for applying fora permit, including any subsequentadditions, revisions or modifications tothe form; or forms approved by EPA foruse in approved States, including anyapproved modifications or revisions.

"Appropriate Act and/or Regulations"means the Clean Water Act (CWA); theSolid Waste Disposal Act, as amendedby the Resource Conservation andRecovery Act (RCRA); the Safe DrinkingWater Act (SDWA); the Clean Air Act(CAA); and applicable regulations"

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promulgated under these laws. This termis used to describe the application ofgeneral requirements to specificprogram activities under one or more ofthe above laws, as appropriate.

"Approved program" means a Stateprogram which has been submitted toand approved by EPA under Part 123and the appropriate Act. An "approvedState" is one administering an"approved program."

"Aquifer" means a geologicalformation, group of formations, or partof a formation that is capable of yieldinguseable quantities of groundwater.

"CWA" means the Clean Water Act(formerly referred to as the FederalWater Pollution Control Act) Pub. L. 92-500, as amended by Pub. L. 95-217 andPub. L. 95-576, 33 U.S.C. 1251 et seq.

"Contaminant" means any physical,chemical, biological or radiologicalsubstance or matter in water."Contaminant" includes, but is notlimited to or by, the term pollutant, asdefined in this Part.

"Director" means the RegionalAdministrator, or the State Director, asdefined in this section, as the particularcontext may require.

{CommenLWhere there is no approvedState program, the term "director" refers tothe Regional Administrator. Where there isan approved State program, the term"director" normally refers to the Statedirector. In some circumstances, however,EPA retains authority to take certain actionseven where there is an approved Stateprogram; e.g., where EPA issued an NPDESpermit prior to the approval of a Stateprogram, EPA may retain jurisdiction overthat permit after program approval, see§ 123.71 and § 123.91. In such cases, the term"director" means the Regional Administratorand not the State Director.]

"Environmental Protection Agency"("EPA") means the United-StatesEnvironmental' Protection Agency.

"Facility or activity" means anyfacility or activity (including land orappurtenances thereto) that is subject toregulation under the RCRA, UIC, orNPDES programs.

"Ground water" means water in thesaturated zone beneath the land surface.

"Hazardous waste" has the meaninggiven in section 1004(5) of RCRA asfurther defined and identified in 40 CFR-Part 250, Subpart A, § 250.13 and .14(proposed at 43 FR 58955-9).

"Interstate agency" means an agencyof two or more States established by orunder an agreement or compactapproved by the Congress, or any otheragency of two or more States, havingsubstantial powers or duties pertainingto the control of pollution as-determinedand approved by the Administrator

under the appropriate Act andregulations.

"NPDES" ("National Pollutantdischarge.Elimination system") meansthe national program for issuing,modifying,-revoking and reissuing,terminating, monitoring, and enforcingpermits pursuant to sections 402, 318,and 405 of CWA. The term includes anyState or interstate program which hasbeen approved by the Administrator.

"Owner or Operator" means theowner or operator of any facility oractivity subject to regulation under theRCRA, UIC, NPDES or 404 programs.

"Permit" means a permit or equivalentcontrol document that complies with allof the requirements and procedures ofthis part and Parts 123 and 124, issuedby EPA oran approved State; In Part124, references to "permit" may includepermit modification, revocation ordenial.

"Person" means an individual,corporation, partnership, association,State or municipality or Federal agency.Under RCRA and CWA, "person" alsomeans a commission, politicalsubdivision of a State, or interstatebody. Under RCRA only, "person" alsomeans a trust, firm or joint stockcampany; and under SDWA only,"person" also means'a company orfederal agency, and includes officers,employees, and agency of anycorporation, company, association, Statemunicipality, or Federal agency.

"Pollutant" means dredged spoil, solidwaste, incinerator residue, filterbackwash, sewage, garbage, sewagesludge, munitions, chemical wastes,biological materials, radioactivematerials, heat, wrecked or discardedequipment, rock, sand, cellar dirt andindustrial, municipal, and agriculturalwasfe discharged into water. It does notmean:

(1) Sewage from vessels; or(2) Water, gas, or other material which

is injected into awell to facilitateproduction of oil or gas, or waterderived in association with'oil and gasproduction and disposed of in a well, ifthe well used either to facilitateproduction or for disposal purposes isapproved by authority of the State inwhich the well is located, and if suchState determines that such injection ordisposal will not result in thedegradation of ground or surface waterresources.

{Comment. The legislative history of theCWA indicates that "radioactive materials"as included within the definition of"pollutant" in section 502 of the CWA means'only radioactive materials which are notencompassed in the definition of source,byproduct, or special nuclear materials

defined by the Atomic energy Act (AEA( of1954, as amended, and regulated under theAXA. Examples of radioactive materials notcovered by the AEA and, therefore, Includedwithin the term "pollutant" or radium andaccelerator produced Isotopes. See Train V.Colorado Public Interest Research Group.Inc. 428 U.s. 1 (1970).]

"Publicly owned treatment works" or"POTW" means a treatment works asdefined in section 212 of the CleanWater Act (CWA), which is owned by aState or municipality (as defined under§ 122.3(d)), excluding any sewers orother conveyances not leading to afacility providing treatment.

"Regional Administrator" means theRegional Administrator of theappropriate Regional Office of theEnvironmental Protection Agency or thedelegated representative of the RegionalAdministrator.

"Regulated activity" or "Activitysubject to regulatioh" means anyactivity subject to regulation under theRCRA, UIC, or NPDES programs.

"RCRA" means the Solid WasteDisposal Act as amended by theResource Conservation and RecoveryAct of 1976 (Pub. L. 94-580, as amendedby Pub. L. 95-609).

"SDWA" means the Safe DrinkingWater Act (Pub. L. 95-523, as amendedby Pub. L. 95-1900).

"Schedule of compliance" means aschedule of remedial measures includingan enforceable sequence of interimrequirements (e.g., actions, operations,or milestone events) leading tocompliance with the appropriate Actand regulations,

"Secretary" means the Secretary ofthe Army, acting through the Chief ofEngineers.

"Site" means the land or v<ater areaupon which a facility or activity isphysically located or conducted,including but not limited to adjacentland used for utility systems, as repair,storage, shipping or processing areas, orother areas incident to the controlledfacility or activity.

"State" means any of the 50 States,the District of Columbia, Guam, theCommonwealth of Puerto Rico, theVirgin Islands, American Samoa, theTrust Territory of the Pacific Islands(except in the case of RCRA), and theNorthern Mariana Islands fexcept in thecase of (CWAL

"State Director" means the chiefadministrative officer of a State agency

-or interstate agency approved underPart 123 by EPA to administer a Stateprogram, or the delegated representativQof the State Director. If responsibility isdivided within a State agency or amongtwo or more State or interstate agencies,

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"State Director" means theadministrative officer authorized to

. perform the particular procedure orfunction to which reference is made.

"Stratum" nieans a single sedimentarybed or layer, regardless of thickness,that consists of approximately the samekind of rock material. Strata is the pluralof stratum. -

"Total dissolved solids" ("TDS")means the total dissolved (filterable)solids as determined by use of themethod promulgated at 40 CFR 136.3Table 1. (The method is described inEPA's "Methods for Chemical Analysisof Water and Wastes, 1974," pages 266-267.)

"Underground Drinking WaterSource" or "Underground Source ofDrinking Water," except as specified in§ 146.04 means:

(1) An aquifier-or its portion supplyingdrinking water for human consumption;

(2) An aquifer or its portion in whichthe groundwater contains less than10,000 mg/1 total dissolved solids; or

(3) An aquifer or its portiondesignated as such by the Administratoror the Director,

[Comment Both the RCRA and UICprograms will use this definition ofunderground source of drinking water(USDW). However, under the UIC programlatitude is given to the responsible authorityin designating USDW's (see § § 122.33 and146.04]. As a balance to this latitude,designations under the UIC program must bemade after public hearing and are subject tothe approval of the Administrator.]

ff) Definitions applicable to RCRAprogram requirements

"Application, Part A" means that partof the application which a RCRA permitapplicant must complete to qualify forinterim staltus under section 3005(e) ofRCRA and for consideration for apermit

[Comment- Part A'of the applicationconsists of Form 1 (General Information) andForm 3 fHazardous Waste InformationSummary) as proposed in today's FederalRegister as "Public Notice of theConsolidated Application Form."I

"Application Part B" means that partof the application which a RCRA permitapplicant must complete to beconsidered for a permit.

[Comment. ERA is not proposing a specificform for Part B of the permit application.]

"Authorization" means authorization,,or approval by EPA df a State programwhich has met the applicablerequirements of section 3006(b) of RCRAand Part 123, Subparts A and B.

"Close Out" means the point in timeat which Hazardous Waste Management

facility owners/operators discontinueaccepting hazardous waste fortreatment, storage or disposal.

[Comment- This definition has beenchanged from the one included in 40 CFR Part250, Subpart 250.41 (proposed at 43 FR 58996(December 18, 1978)) so as to clearly indicatethat close-out begins when the facilitydiscontinues accepting hazardous wastes.Comments received on this provision, as wellas those submitted on the Part 250 definitionof "close-out", will be considered togetherand will be conformed when theseregulations are finally promulgated.)

"Closure" means tha act of securing aHazardous Waste Management facilitypursuant to the requirements of 40 CFRPart 250, § 250.43-7 (proposed at 43 FR59004 (December 18,1978)).

"Delivery Document" means ashipping paper (bill of lading, waybill,dangerous cargo manifest, or othershipping document) used In lieu of theoriginal manifest to fulfill theredordkeeping requirements of 40 CFRPart 250, § 250.33 (proposed at 43 FR18510 (April 28, 1978)).

"Disposal" means the discharge,deposit, injection, dumping, spilling,leaking, or placing of any solid waste orhazardous waste into or on any land orwater so that such solid waste orhazardous waste or any constituentthereof may enter the environment or beemitted into the air or discharged intoany waters, including groundwaters.

A "Disposal facility" means anyHazardous Waste Management facilitywhich disposes of hazardous waste.

"Existing HWM facility" means aHazardous Waste Management facilitywhich was in operation or underphysical construction, on or before thedate of promulgation of the regulationsunder § 3001 of RCRA, 40 CFR 250,Subpart A. (proposed at 43 FR 58954(December 18,1978)).

"Generator" means any person orFederal agency whose act or processproduces hazardous waste identified orlisted under 40 CFR Part 250, § 250.13and .14 (proposed at 43 FR 58955-9(December 18,1978), provided, however,that certain producers may or may notbe generators depending on whetherthey meet the criteria specified in 40CFR Part 250, § 250.29 (proposed at 43FR 58979 (December 18,1978)).

A "Hazardous Waste Managementfacility" ('HWM facility') means anyfacility, land and appurtenances theretoused for the treatment, storage, and/ordisposal of hazardous waste, except thatsolid waste disposal facilities whichreceives hazardous wastes only frompersons subject to 40 CFR 25029 shallnot be considered HWM facilities.

[CommenL- Persons subject to 40 CFR250.29 are those who produce and dispose ofno more than 100 kilograms (approximatey220 pounds) of hazardous wastes in any onemonth, retailers who dispose of hazardouswastes other than waste oil, and farmers whodispose of pesticides which are hazardousand who follow certain specified operatingprocedures.]

"In operation' means HazardousWaste Management facilties that areactively treating, storing, or disposing ofhazardous waste.

"Interim authorizationi" meansauthorization or approval by EPA of aState program which has met theapplicable requirements of section3 6(c) of RCRA and Part 123, SubpartsA and B.

The term "Major Hazardous WasteManagement facility" means a facilityused for the treatment, storage ordisposal of hazardous waste at a rateequal to or greater than 5,000 metric tonsper year.

[Comment- This definition is used hrconjunction with the reqiuirements for EPAsreview of State issued permits in § 123.38, theIssuance of public notices in § 124.11, and theIssuance of fact sheets in § 124.9. and shallnot be construed to mean that any of theapplication procedures or public hearingprocedures are waived for any facility.]

"New HWM facility" means aHazadous Waste Management facilitywhich does not meet the definition of anexisting facility as defined in thissection.

"Off-site" means any site that doesnot meet the definition of "on-site" asdefinedTn this section.

"On-site" means onthe same orgeographically contiguous property. Twoor more pieces of property which aregeographically contiguous and aredivided by public or private rights(s)-of-way are considered a single site.

'Physical construction" meansexcavation, movement of earth, erectionof forms or structures, the purchase ofequipment or any other activityinvolving the actual preparation of theHazardous Waste Management facility.

"Storage" means the containment ofhazardous waste, either on a tempozarybasis or for a period of years, in such amanner as not to constitute disposal ofsuch hazardous wastes.

"Storage facility" means HazardousWaste Management facility whichstores hazardous waste, except forgenerators who store their own wasteson-site for less than 90 days forsubsequent transport off-site, inaccordance with regulations in 40 CFRPart 250, § 250.20(c)(2) (proposed at 43FR 58976 (December 18, 1978)).

I I II I •

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"Transporter" means a person orFederal Agency engaged in thetransportation of hazardous waste byair, rail, highway or water.

"Treatneit" means any method,technique, or process, includingneutralization, designed to change thephysical, chemical, or biologicalcharacter or composition of anyhazardous waste so as to neutralizesuch waste or so as to render suchwaste nonhazardous, safer for transportamenable for recovery, amenable forstorage or reduced in volume. Such termincludes any activity or processingdesigned to change the physical form orchemical composition of hazardous-waste so as to render it nonhazardous.

"Treatment facility" means anyHazardous Waste Management facilitywhich treats hazardous waste.

(c) Definitions applicable to UICprogram requirements

"Approval in part" means action b ythe Administrator which authorizes aState to administer a UIC programcovering less than all types of injectionwells within the State. In order to be

,_approved in part, the State programmust meet all the requirements of Part123 for those injection wells for whichauthorization is given.

[Comment States which have not receivedfull approval are not eligible to receiveprogram grants under section 1443 of SDWAL.

"Area of review" means the Areasurrounding an injection well which isdescribed according to the criteria setforth in § 146.05.

"Effective date of a UIC program"means the date that a State UICprogram is approved or the date that aUIC program is established by theAdministrator.

"Existing injection wells" means allinjection wells other than new injectiqnwells as defimed in this section.

"Fluid" means material or subifancewhich flows or moves whethersemisolid, liquid, sludge or any otherform or state.

"Injection well" means a well intowhich injection occurs, including thefollowing types of injection wells (whichare divided'into the classes in § 122.34):

(1) "Air conditioning return flow well"means a well used to return to thesupply aquifer the water used forheating or cooling in a heat pump.

(2) "Cesspool" means an undergrounddevice with an open bottom and oftenwith perforated sides that receiveswastes.

[Comment The UIC requirements will notapply to single family residential cesspools.]

(3) "Cooling water return flow well"means a well used to inject waterpreviously used for cooling.

(4) "Disposal well" means a well used-for the disposal of waste into asubsurface stratum.

(5) "Drainage well" means a well usedto drain surface fluid, primarily stormrunoff, into a subsurface stratum.

(6) "Dry well" means a well that isused for the injection of wastes into theunsaturated zone above anrundergrounddrinking water source.

(7) "Enhanced recovery injectionwell" means a well used to inject fluidsfor the purpose of facilitating recoveryof oil or natural gas.

(8) 'Frasch process well" means awell used for the production of sulfur bythe Frasch process.

(9) "Geothermal well" means a wellused to-inject fluids to extract heat fromthe earth's interior.

(10) "Hydrocarboa storage well"means: (i) a well used to injecthydrocarbons into an undergroundformation or reservoir for the purpose ofstorage or (ii) a well for the injection offluids for the purpose of recovery ofstored hydrocarbons.

(11) "In situ gasification well" meansa well used for the injection of air and/or fuels to gasify by partial combustionfossil fuel such as coal, tar sands and oilshale.

(12) "Industrial waste disposal well"means a well used for the disposal ofwaste fluids from an industrial facilityinto a subsurface stratum. -

(13) "Municipal disposal well" meansa well used for the disposal of effluent

- or sludge from a municipal wastewatercollection, storage or treatment facilityinto a subsurface stratum.

(14) "Nuclear disposal or storagewell" means a well used for the

_-injection of nuclear materials or wastesinto a subsurface stratum, whether fortemporary storage or ultimate disposal.

(15) "Produced fluid disposal well"means a well used for the injection ofwater or other fluids which are broughtto the surface in connection with oil ornatural gas production into a subsurfacestratum other than the oil producingformation.

(16) "Recharge well" means a wellused to artificially replenish the water inan aquifer.

(17) "Salt water intrusion barrierwell" meani a well used to inject waterinto a fresh water aquifer to prevent theintrusion of salt water into the freshwater.

(18) "Sand-backfill well" means a wellused to inject a mixture of water andsand, mill tailings or other solids intomined out portions of subsurface mines.

(19) "Septic system well" means (1) awell used to inject the waste or effluentfrom a multiple dwelling, community orregional septic tank; or (ii) a multipledwelling, community or regionalcesspool; or (iii) a septic tank systemwell used to dispose of hazardouswastes; but does not mean individual-residential waste disposal systems.

(20) "Solution mining well" means (I)a well used to inject fluid containingleaching chemicals to effectuate in-sItuleaching and subsequent recover ofmetals such as copper and uranium, or(ii) a well used for the injection of wateror other' fluids for the purpose ofrecovering minerals such as sodiumchloride, potash and phosphate.

(21) "Subsidence control well (not forthe purpose of oil and gas recovery)"means a well used to inject fluids into anon-oil gas producing zone to reduce oreliminate subsidence associated withthe overdraft of fresh water.

"Listed State" means a State listed bythe Administrator under section 1422 ofthe SDWA as needing a State UICprogram.

"New injection wells" means thosewells which begin injection after a UICprogram applicable to such wellsbecomes effective in the State.

"Underground injection" means thesubsurface emplacement of fluids bywell injection.

"Well injection" means the subsurfaceemplacement of fluids (except drillingmuds, cement and similar constructionmaterials) through a bored, drilled ordriven well; or through a dug well,where the depth of the dug well isgreater then the largest surfacedimension.

(d) Definitions applicable to NPDESprogram requirements

"Applicable standards andlimitations" means all State, interstateand Federal standards and limitations towhich a discharge or a related activity Issubject under the CWA, including, butnot limited to, effluent limitations, waterquality standards, standards ofperformance, toxic effluent standardsfor prohibitions, best managementpractices, and pretreatment standardsunder sections 301, 302, 303, 304, 306,307, 308, 403 and 405 of CWA.

"Best management practices"("BMPs") include treatmentrequirements, operating andmaintenance procedures, schedules ofactivities, prohibitions of activities, andother management practicqs to controlplant site runoff, spillage or leaks,sludge or waste disposal, or drainagefrom raw material storage. BMPs may beimposed in addition to or in the absence

34270




of effluent limitations, standards, orprohibitions.

"Contiguous zone" means the entirezone established by the United Statesunder article 24 of the Convention on the-Territorial Sea and the Contigous Zone.

"Direct discharge" means thedischarge of a pollutant or the dischargeof pollutants.

"Discharge" when used withoutqualification includes a discharge of apollutant and a discharge of pollutants.

"Discharge of a pollutant" and"discharge of pollutants" each means: (i)Any addition of any pollutant orcombination of pollutants to navigablewaters from any point source, or

(ii) Any addition of any pollutant orcombination of pollutants to the watersof the contiguous zone or the ocean fromany point source other than a vessel orother floating craft when being used as ameans of transportation.

This definition includes dischargesinto waters of the United States from:surface runoff which is collected orchannelled by man; discharges throughpipes, sewers, or other conveyancesowned by a State, municipality, or otherparty which do not lead to treatmentsystems; and discharges through pipes,sewers, or other conveyances, leadinginto treatment systems owned in wholeor in part by a third party other than aState or-a municipality.

"Discharge Monitoring Report"{"DMR") means the EPA uniformnational form, including any subsequentadditions, revisions or modifications, forthe reporting of self-monitoring resultsby permittees. DMRs must be used byapproved States as well as by EPA.

[Comment: EPA will supply DMI6 to anyapproved State upon request The EPAnational forms may be modified to substitutethe State Agency name, address, logo andother similar information, as appropriate, inplace of EPA's]

'Effluent limitation" means anyrestriction imposed by the Director onquantities, rates, and concentrations ofpollutants which are discharged frompoint sources into navigable waters, thewaters of the contiguous zone or theocean.

"Indirect discharger" means a non-municipal, non-domestic dischargerintroducing pollutants to a publiclyowned treatment works whichintroduction does not constitute a"discharge of pollutants."

"Municipality" means a city, town,borough, county, parish, district,association or other public body createdby or pursuant to State law and havingjurisdiction over disposal of sewage,industrial wastes, or other wastes, or an

Indian tribe or an authorized Indiantribal organization, or a designated and-approved management agency undersection 208 of CWA.

"Navigable waters" means "waters ofthe United States, including theterritorial seas". This term includes:

(1) All waters which are currentlyused, were used in the past, or may besusceptible to use in interstate or foreigncommerce, including all waters whichare subject to the ebb and flow of thetide;

(2) Interstate waters, includipginterstate wetlands;

(3] All other waters such as intrastatelakes, rivers, streams (includingintermittent streams), mudflats,sandflats, wetlands, sloughs, prairiepotholes, wet meadows, playa lakes,natural ponds, the use, degradation ordestruction of which would affect orcould affect interstate or foreigncommerce including any such waters:

(i) Which are or could be used byinterstate of foreign travelers forrecreational or other purposes;

(ii) From which fish or shellfish are orcould be taken and sold in intirstate orforeign commerce;

(iii) Which are used or could be usedfor industrial purposes by industries ininterstate commerce;

(4) All impoundments of watersotherwise defined as navigable watersunder this paragraph;

(5) Tributaries of waters indentified inparagraphs (1)-{4) of this section,including adjacent wetlands; and

(6) Wetlands adjacent to watersidentified in paragraphs {1)-(5) of thissection; ("Wetlands" means those areasthat are inundated or saturated bysurface or ground water at a frequencyand duration sufficient to support, andthat under normal circumstances dosupport, a prevalance of vegetationtypically adapted for life in saturatedsoil conditions. Wetlands generallyinclude swamps, marshes, bogs, andsimilar areas.

(7) Provided, That treatment ponds orlagoons designed to meet therequirements of the CWA (other thancooling ponds meeting the criteria of thisparagraph) are not waters of the UnitedStates.

[Comment. For purposes of clarity the term"waters of the United States" is primarilyused throughout the regulations rather than"navigable water."]

"New discharger" means any building,structure, facility or installation (1)which on October 18,1972, had neverdischarged pollutants and (2) which hasnever received a finally effective NPDESpermits and (3) from which there is or

may be a new or additional discharge ofpollutants and (4) which does not failwithin the definition of "new sources".

"New source" means any building,structure, facility or installation fromwhich there is or may be a discharge ofpollutants, the construction of whichcommenced:

(i) After promulgation of standards ofperformance under section 306 of theCWA which are applicable to suchsource, or

(ii) After proposal of standards ofperformance under section 306 of theCWA which are applicable to suchsource,,but only if the standards arepromulgated within 120 days of theirproposal.

[Comment. See § 122.81 for the criteria andstandards to be used in determining whethera source has begun construction i-thin themeaning of this definitions, for the types ofconstruction activities which result in newsources or new discharges, and for the effectof a new source determination.]

"Point source" means any discernible,confined and discrete conveyance.including but not limited to any pipe,ditch, channel, tunnel, conduit, well,discrete fissure, container, rolling stock.concentrated animal feeding operation,vessel or other floating craft from whichpollutants are or may be discharged.This term does not include return flowsfrom irriated agriculture.

"Process waste water means anywater which, during manufacturing orprocessing, comes into direct contactwith or results from the production oruse of any raw material, intermediateproduct, finished product, byproduct, orwaste product.

"Sewage from vessels" means humanbody wastes and the wastes from toiletsand other receptacles intended toreceive or retain body wastes that aredischarged from vessels and regulatedunder section 312 of the CWA. exceptthat with respect to commercial vesselson the Great Lakes this term includesgraywater. For the purposes of thisdefinition, "graywater" means galley,bath, and shower water.

"Sewage sludge" means the solids,residues, and precipitate separated fromor created in sewage by the unitprocesses of a publicly owned treatmentworks. "Sewage" as used in thisdefinition means any wastes, includingwastes from humans, households,commercial establishments, industries,and storm water runoff that aredischarged to or otherwise enter apublicly owned treatment works.

"Variance" means any mechanism orprovision under section 301 or 316 ofCWA and Part 125, or in the applicableeffluent limitation guidelines which

34271




allow modification to or waivers of theeffluent limitation requirements ofCWA. This includes provisions whichallow the establishment of alternativelimitations based on fundamentallydifferent factors and sections 301(c),301(g), 301(h), and 316(a) of CWA, whereappropriate.

"Waters of the United States"meansnavigable waters, as defined in thissection.(e) Definitions applicable to section 404program requirements

"Best Management Practices"("BMPs") means methods, measures,practices or design and performancestandards to preventor reduce the'pollution of waters of the United States.BMPs include but are not limited toschedules of activities, prohibitions ofpractices, and maintenance procedures.BMPs developed by State section 404Agencies must insure compliance withthe section 404(b)(1) environmentalguidelines, (40 CFR 230), and effluentlimitations and prohibitions undersection 307(a), and water qualitystandards.

"Cultivating" means physical meansof soil treatment employed withinestablished agricultural and silviculturallands upon planted farm or forest cropsto aid and improve their growth, qualityand yield.

"Discharge of dredged material"-means any addition of dredged materialinto waters of the United States. Theterm includes, without limitation, theaddition of dredged materialinto watersof the United States and the runoff oroverflow from a contained land or waterdisposal area. Discharges of pollutantsinto waters of the United Statesresulting from the subsequent onshoreprocessing of dredged material that isextracted for any commercial use (otherthan fill) are not included within thisterm and are subject to section 402 ofthe Clean Water Act even tllough theextraction and deposit of such materialmay also require a permit from theCorps of Engineers.

"Discharge of fill material" means theaddition of fill material into waters ofthe United States. The term generallyincludes without limitation, thefollowing activities in waters of theUnited States: placement of fill that isnecessary for the construction of anystructure; the building of any structureor impoundment requiring rock, sand,dirt, or other materials for itsconstruction; site-development fills forrecreational, industrial, commercial,residential, and other uses; causewaysor road fills; dams and dikes; artificialislands; property protection and/lor

reclamation deices such as riprap,groins, seawalls, breakwaters, andrevetments; beach nourishment; levees;fill for structures such as sewagetreatment facilities, intake and outfallpipes associated with power plants andsubaqueous utility lines; and artificialreefs.

"Disposal site" means that portion ofthe waters of the United States enclosedwithin fixed boundaries consisting of awater surface area (when present), a

-volume of water (when present), and asubstrate area. In the case of wetlandson which water is not present, thedisposal site consists of the wetlandssurface area. Fixed boundaries mayconsist of fixed geographic point(s) andassociated dimensions, or of a dischargepoint and specific associateddimensions.

"Dredged material means materialthat is excavated or dredged fromwaters of the United States.

"Fill material" means any materialused for the primary purpose ofreplacing any water of the United Stateswith dry land or of changing the bottomelevation of a waterbody. The term doesnot include any pollutant dischargedinto the water primarily to dispose ofwaste, as that activity is regulated undersection 402 of CWA. The Director, inconsultation with the section 402permitting authority, will makedeterminations as to the primarypurpose of proposed activities.

[Comment- In some instances the proposedactivity will require both a section 402 and asection 404 permit. (e.g., diking an area ofwaters of the United States to fill it withmunicipal :wastes.) Where this is the case,every attempt should be made to jointlyprocess the permit application, including jointpublic notices and public hearings ifnecessary. Consideration is presently beinggiven to changing the primary purpose testShould this occur the above comment will nolonger be ap~licable.]-

"General permit" means either a Statepermit or a Corps of Engineers Armypermit that is issued under section 404of CWA after notice and opportunity forpublic hearing, on a local State, Regionalor nationwide basis to authorize anydischarges of dredged or fill materialfrom clearly described categories ofactivities involving discharges ofdredged or fill material that are similarin nature, will cause.only minimaladverse environmental effects whenperformed separately, and will haveonly minimal cumulative adverse iffectson the environment.

"Harvesting" means physicalmeasures employed directly upon farm,or forest crops to bring about theirremoval from farm lands or forest land,

but does not include the construction offarm or forest roads.

"Impoundment" means a standingbody of open water created byartificially blocking or restricting theflow or circulation of a water of theUnited States. As used in this regulation,the term does not include artificial lakesor ponds created by excavating and/ordiking dry land areas to collect andretain water for such purposes as stockwatering, irrigation, settling basins,cooling, or rice growing, and actuallyused for such purposes.

"Minor drainage" means constructionand maintenance of facilities for theremoval of excess soil moisture fromdrylands (uplands]. It includes ditchingand tiling incidental to the planting,cultivating, protecting, or harvesting ofcrops. The connection of such drainageways from uplands to the waters of theUnited States is considered to be minordrainage. The discharge of dredged orfill material incidental to connecting anupland drainageway to water of theUnited States, adequate to the purposeof removing excess soil moistureincidental to the above activities isminor drainage. The term does notinclude discharges incidental to theconstruction of ditches or other drainagefeatures which converts any water ofthe United States to farming, ranching,or silvicultural uses, nor does it includedischarges incidental to the drainage ofa forested wetland to convert it to anytype of nonwetland forest.

"Navigable waters" and "Wetlands"are defined under the NPDES programdefinitions.

"Plowing" means all forms of primarytillage, including moldboard, chisel, orwide-blade% plowing, discing, harrowing;and similar physical means utilized onestablished farm land for the breakingup, cutting, turning over, or stirring ofsoil to prepare it for the planting ofcrops. The term does not include theredistribution of spoil, rock sand, or'other superficial materials in a mannerwhich changes any area of the waters ofthe United States to dryland. Forexample, the redistribution of surfacematerials by blading, grading, or othermeans to fill in wetland areas willrequire a permit whenever the affectedareas lie within the waters of the U.S.

"Seeding" means the manual ormechanical sowing of seed andplacement of seedlings for theproduction of farm or forest crops andincludes the placement of soil beds forseeds or seedlings on established farmlands and forest lands.. "State regulated waters" means those

waters of the United States in which the-Corps of Engineers will suspend the

LIS34272




issuancd of section 404 permits uponapproval of a State's sectioh 404 permitprogram by the Administrator undersection 404(h). These waters shall beidentified in the Memorandum ofAgreement between the State and theSecretary as required by § 122.93.

[Comment CWA section 404(g)(1] requiresthat the Secretary retain jurisdiction, forpurposes of section 404 over the followingwaters:

(1) Waters which are subject to the ebband flow of the tide;

(2) Those waters which are presently used.or are susceptible to use in their naturalcondition or by reasonable improvement as ameans to transport interstate or foreigncommerce shoreward to their ordinary highwater mark and

(3] Wetlands adjacent to waters in (1) and(2).]

§ 122.4 State authorities.Nothing in Parts 122-124 precludes

more stringent State regulation of anyactivity covered by these Parts, exceptas provided for the RCRA program in§ 123.33(c).

§ 122.5 Signatories to permit programforms.

(a) All permit applications, except forthose submitted for Class 11 wells for theUIC program (see paragraph (b) below),shall be signed as follows:

(1) For a corporation, by a principalexecutive officer of at least the level ofvice president;

(2) For a partnership or soleproprietorship, by a general partner orthe proprietor, respectively;, or

(3) For a municipality, State, Federalor other public agency, by either aprincipal executive officer or rankingelected official.

(b) All reports required by permits orotherwise required by the Director, otherrequests for information made by theDirector, and all permit applicationssubmitted for Class II wells under§ 122.36 for the UIC program shall besigned by a person designated inparagraph (a), or by a duly authorizedrepresentative of such person; ift

(1) The representative so authorized isresponsible for the overall operation ofthe facility from which the regulatedactivity originates, e.g., a plant manager,superintendent or person of equivalentresponsibility;,

(2] The authorization is made inwriting by the person designated underparagraph (a]; and

(3) The written authorization issubmitted to the Director.

(c) Any changes in the writtenauthorization submitted to thepermitting authority under paragraph (b)which occur after the issuance of a

permit shall be reported to the Directorby submitting a copy of a new writtenauthorization which meets therequirements of paragraph (b) (1) and(2).

(d) Any person signing a documentunder paragraph (a) or (b) of this sectionshall make the following certification: "Icertify under penalty of law that I havepersonally examined and am familiarwith the information submitted In theattached document, and that based onmy inquiry of those individualsimmediately responsible for obtainingthe information, I believe that thesubmitted information is true, accurateand complete. I am aware that there aresignificant penalties for submitting falseinformation, including the possibility offine and imprisonment."

[Commentr Permit applications are beingrevised to Incorporate this statement Wherea program document does not contain thestatement, the certification must accompanythe appropriate document]

(e) This section is applicable toapproved State programs (see § 123.8).States may adopt language that isequivalent to but not identical to, thecertification statement in paragraph (d),if such equivalent language is approvedby the Regional Administrator.

§ 122.6. Application for a permiL(a) Any person who conducts or who

proposes to conduct an activity forwhich a permit is required under thisPart shall complete, sign, and submit anapplication to the Director as describedin § 122.23,12.2.38 and 122.64.

§ 1227 Permit Issuance; effect of apermit

(a) The permit issuance process isinitiated by the receipt of a completeapplication by the Director.

(b) The issuance of a permit does not(1) convey any property rights'of anysort, or any exclusive privileges; (2)authorize any injury to private propertyor invasion of other private rights, orany infringement of Federal, State, orlocal law or regulations, or (3) preemptany duty to obtain State or local assentrequired by law for the authorizedactivity.

(c) Any permittee who wishes tocontinue a regulated activity after theexpiration date of a permit must applyfor a new permit under the applicablesections of this Part, Part 124, and in thecase of section 404 permits, Part 123,Subpart E.

1122.8 Duration of permilts; continuationof expking permits; transferability ofpern-at&

(a) NPDES and section 404 permitsshall be issued for a term not to exceedfive years. Permits of less than five (5)years duration may be issued inappropriate circumstances (for example,see § 122.69). Except as provided inparagraph (c), the term of an NPDESpermit shall not be extended beyondfive years from its original date ofeffectiveness by modification, extensionor other means.

(b) RCRA and UIC permits shall beIssued for a period not to exceed thedesigned operating life of the facility (inthe case of new facility) or theremainder of the designed operating lifeof the facility (in the case of an existingfacility), except as provided in§ 122.25(b) (RCRA Experimental SpecialPermits).

(c) Continuation of expiring pemits.(1) Where EPA is the permit issuingauthority, the terms and conditions of anexpired permit are automaticallycontinued under 5 U.S.C. § 558(c)pending issuance of a new permit if.

(i) The permittee has submitted atimely and sufficient application for anewpermit under §122.23, § 12.3 or§ 122.64; and

(ii) The Regional Administrator isunable, through no fault of the permittee,to issue a new permit before theexpiration date of the previous permit(e.g., where it is impracticable due totime and/or resource constraints).

(2) Permits continued under thisparagraph remain fully effective andenforceable.

(3) Where the permittee is not incompliance with the terms andconditions of the expiring permit-

(i) The permit may be continued underthis section pending a finaldetermination by the RegionalAdministrator on the application for anew permit and enforcement action maybe taken based upon the continuedpermit; or

(ii) The Regional Administrator maymake a determination to deny theapplication for a new permit inaccordance with the proceduresspecified in Part 124. The owner oroperator would then be required tocease the activities authorized by thepermit or be subject to enforcementaction for operating without a permiL

(d) States authorized to administer theRCRA. UIC or NPDES programs maycontinue permits in a similar manner ifso authorized by State law. However, apermit is not continued under Federallaw where EPA originally issued thepermit, but the State is the permitting

34273




authority at the time the permit expired.In sich case, the activity or facility isoperating without a permit from the timethe EPA-issued permit expires to thetime that the State-issued permit iseffective.

(e) Transferability of permits. Apermit may be transferred to anotherperson by a permittee if:

(1) The permittee notifies the Directorof the proposed transfer;,

(2) A written agreement containing aspecific date for transfer of permitresponsibility and coverage between thecurrent and new permittees (includingacknowledgement that the existingpermittee is liable for violations up tothat date, and that the new permittee isliable for violations from that date on) issubmitted to the Director;, and

(3) The-Director within 30 days doesnot notify the current pei'mittee and thenew permittee, of his or her intent tomodify, revoke and reissue or terminatethe permit and to require that a newapplication be filed rather than agreeingto the transfer of the permit. -

[Comment. A new application could berequired-under this paragraph where thechange of ownership is accompanied by achange or proposed change in process,wastewater, or hazardous wastecharacteristics or a change or potentialchange in any circumstances that thepermitting authority believes will affect thqconditions or restrictions in the permit.]

§ 122.9 Review and modification orrevocation and relssuance of permits.

(a) The Director shall review eachissued UIC or RCRA permit at least onceevery five years to determine whetherthe permit should be modified or ' -revoked and reissued for one or more ofthe causes listed in paragraph (e) of thissection.

[Comment, The purpose of paragraph (a) isto ensure that RCRA and UIC permits aresubject to comprehensive review at specifiedtimes and modification or revocation andreissuance as may be desirable to bettercarry out the statutory purpose(s).Accordingly, the Director is as free topropose and adopt permit modifications for alife-term permit as the result of such a reviewas he would be to propose and adopt newpermit terms as the result of the expirationand reissuance of a fixed term permit. Permitmodifications for cause during the term of a.permit are also possible where cause existsunder paragraph [e).]

(b) Where permits under two or moreprograms under this Part are issued for asingle facility or activity, the Directorshall review all the permits issued forthat facility or activity whenever anyone of the permits is reviewed pursuantto paragraph (a], or any one of thepermits expires pursuant to § 122.8 or Is

terminated under § 122.10. The purposeof this review shall be.to determinewhether the permit should be modifiedor revoked and reissued for one or moreof the causes listed in paragraph (e) ofthis section. The permit shall specify adate for review under this sectionwhenever the date of expiration ofanother permit for the same facility oractivity is available.

(c) The Director may review an issuedpermit at any time and shall review anissuedpermit on the request of anyperson who presents information which,if valid, would constitute cause for amodification or revocation andreissuance under paragraph (e) of thissection.

(d) The Director may base his/herreview on any or all of the following:

(1) Information submitted by the!permittee in periodic reports;

(2) Information collected by theDirector in inspections of the permittedfacility;

(3) Information requested of thepermittee, including all or part of theinformation which the Director mightotherwise request in an application forthe issuance or reissuance of a permit;or

(4) Any other pertinent informationthat the Director may obtain.

(e) Cause for modification orrevocation and reissuance exists:

(1) Where there are material andsubstantial alterations or additions tothe permitted operation which are notcovered by the effective permit;provided that for NPDES permits, suchalterations or additions do not constitutea replacement of the process orroduction equipment of an existing

source, converting it to a new sourceunder § 122.81.

[Comment. Such alterations or additionsinclude but are not limited to material orsubstantial changes in the quantity (increaseor decrease] or composition of the wastes,fluids or pollutants injected, discharged,treated, disposed or stored; changes.in theinjection, discharge, treatment, disposal orstorage methods or other operationalmethods employed, production changes,relocation or combination of dischargepoints, changes in the nature or mix ofproducts produced.

Certain reconstruction activities may causethe new source provisions for NPDES permits'under § 122.81 to become applicable to thepermittee. In such cases, the new sourcepermit issuance procedures of § 122.64 and

. § 124.61 shall be followed instead of themodification or revocation and reissuanceprocess and an EIS may be required for anEPA-issued new source permit]

(2) Where the existence of anyfactor(s) which, if properly and timelybrought to the attention of the Director,

would have justified the application ofdifferent permit terms and conditions,but only if the requester show that suchfactors arose after the final permit wasissued.

(3) Where the standards and/orregulations on which the permit wasbased Iave been changed bypromulgation of amended standardsand/or regulations or judicial decisionafter the permit was Issued, except thatNPDES permits may be modified duringtheir terms for such reasons only to theextent set forth in § 122,73;

(4] Where an existing permitteeproposed a change of ownership orcontrol of the permitted activity orfacility, and the Director determinesunder § 122.8 that modification orrevocation and reinssuance Isappropriate;

(5) Where modification, revocationand reissuance or termination of anotherpermit issued to the same facility oractivity requires a modification orrevocation and reissuance of the permit

(6) Where the permit falls to applyany applicable requirements under theappropriate Act or regulations, whichare in effect prior to the effective date ofpermit issuance; and

(7) For NPDES and section 404 permits6nly, where cause exists for terminationunder § 122.10 or § 122.74.

[Comment: The Director will generally basohis/her decision on whether to modify,instead of revoking and reissuing a permit,where cause exists under paragraph (e) ofthis section, on the extent of the anticipatedchanges and on the length of the remainingterm of the permit. For instance, where theremaining permit term is only two years, Itmay be desirable to revoke the existingpermitand issue another permit Incorporatingthe changes. See also § 122.69 for certaincircumstances when NPDES permits will berevoked and reissued.]

(f) Except as provided for minormodifications under paragraph (g) ofthis section the modifiqation orrevocation and reissuance of permitsunder this section shall comply with§ 124.5 and § 124.7.

(g) The following minor permitmodifications shall not require publicnotice and opportunity for hearing under§ 124.5 or § 124.7, unless they wouldrender the permit less stringent, orunless contested by the pernilttee:

(1) Correction of typographical errors:(2) A change requiring more frequent

monitoring or reporting by the permittee;(3) A change in an Interim compliance

date, provided the change would notexceed 120 days or would not Interferewith attainment of a final compliancedate; and

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(4) A change in-ownership oroperational control of a facility wherethe Director determines that no majorchange of the permit is necessary under§ 122.8(d).

(5) To the extent authorized under§ 122.24, changes in quantities or typesof wastes treated, disposed or storedwhich are within the capacity of thefacility as permitted and, in thejudgment of the Director, would notinterfere with the operation of thefacility or its capacity to meetconditions prescribed in the permit

(6) To the extent authorized under§ 122.24, changes in treatment, disposalor storage methods or operations which,in th judgement of the Director, areequivalent to or better than those onwhich their permit is based.

(7) Extension of the term of a Statesection 404 permit so long as theextension does not conflict with§ 1 2.8(a).

(h) minor modifications as defined inparagraph (g) of this section shallbecome immediately effective oreffective on a date specified by theDirector.

§ 122.10 Termination of permits.(a) An issued permit may be

terminated, in whole or in part, duringits term for cause as specified in thissection.

(b) Cause for termination inclides:(1) Violation of any term or condition

of the permit or requirement of the-appropriate Act by the permittee;

(2) Failure of the permittee to disclosefully all relevant facts ormisrepresentation of any relevent factsby the permittee in the application orduring the permit issuance process;

(3) Information indicating that thepermitted activity poses a threat tohuman health or the environment

(4] A change in ownership or controlof a source which has a permit whererequired by the Director in accordancewith § 122.8(e); or

(5) Other good cause.[ComrnmenL Termination under this section

includes tie suspension or revocation of apermit under sedtion 3008 of RCRA.Procedures for termination or suspension andrevocation of RCRA permits are provided in40 CFR Part 22 [proposed at 43 FR 34739(August 4.1978).]

§ 122.11 Condltions applicable to allpermits.

The following conditions apply to allpermits and shall be incorporated intoall permits either expressly or byreference.

[Comment If not incorporated byreference, the inclusion of the requirements of

this section Into permits may require some ,

wording changes. Where this Is the case. thepermit conditions should be wordedsubstantially similar to the requirements ofthis section, and should be of equivalentforce.]

(a) The permittee must comply withall terms and conditions of the permitwhether they are directly stated orincorporated by reference.

[Comment. Any failure in complianceconstitutes a violation of the appropriate Actand constitutes grounds for an enforcementaction.]

(b) The permit shall be reviewed attimes specified in § 122.9(a), (b) and (c) ,and may be modified, revoked andreissued or terminated during Its termfor cause as described in § 122.g(e) and§ 122.10.

(c) Any permittee who knows or hasany reason to believe that any activityhas occurred or will occur which wouldconstitute cause for modification orrevocation and reissuance under§ 122.9(e) must report his/her plans orsuch information to the Director so thatthe Director can decide whether actionto modify or revoke and reissue a permitunder § 122.9 will be required. TheDirector may require submission of anew application.

(d) Unless and until a permit ismodified or revoked and reissued, apermittee must comply with the termsand conditions of the existing permitwhether or not that existing permitwould allow the permittee to begin theactivity described in paragraph (c) ofthis section.

(e) The permittee shall allow theDirector or an authorized representative.upon the presentation of credentials andsuch other document as may be requiredby law:

(1) Enter upon the permittee'spremises where a regulated facility oractivity is conducted or located, orwhere records must be kept under theterms and conditions of the permit;

(2) Have access to and copy, atreasonable times, any records or labelsthat must be kept under the terms andconditions of the permit;

(3) Inspect at reasonable times anyfacilities, equipment (including -monitoring equipment) or operationsregulated under the permit; and

(4) Sample at reasonable times anysubstances which the permittee isrequired to monitor under the permit,including any discharge of pollutants,hazardous wastes, and injected fluids.

(5) Sample at reasonable times anysubstances at any monitoring pointwhich the permittee is required tomonitor under the permit.

[Comment- This subparagraph includesboth the sampling of pollutants, wastes andfluids which are discharged, treated, stored.disposed or injected and also the monitoringof surrounding environment. eg. thesampling of adjacent parts of aquifers by useof monitoring wells.]

(f) The permittee shall furnish to theDirector copies of records required to bekept under the terms and conditions ofthe permit upon request within areasonable time, as specified in § 122.14.

(g) The permittee shall at all timesmaintain in good working order andoperate efficiently all facilities andsystems of treatment or control (andrelated appurtenances) which areinstalled or used by the permittee toachieve compliance with the terms andconditions of the permit. Properoperation and maintenance includes butis not limited to effective performancebased on designed facility removals,adequate funding, effectivemanagement, adequate operator staffingand training, and adequate laboratoryand process controls, includingappropriate quality assuranceprocedures.

(h)(1) If. for any reason, the permitteedoes not comply with or will be unableto comply with any terms or conditionsof a RCRA. UIC. or 404 permit, or themaximum daily or average weeklydischarge limitations or standards of anNPDES permit, the permittee shallprovide the Director with the followinginformation:

(i) A description of the noncomplianceand cause of noncompliance; -

(ii] The period of noncompliance,including exact dates and times; and/or,if not corrected, the anticipated time thenoncompliance is expected to continue;

(iII) Steps taken and/or planned toreduce, eliminate and preventrecurrence of the noncompliance; and -

(2) The information required undersubparagraph (1) shall be provided asfollows:

(i) In the case of noncomplyingactivities which could constitute a threatto human health, welfare or theenvironment, the Director may requirethat the information required bysubparagraph (1) be provided within 24hours or five days from the time thepermittee becomes aware of thecircumstances. Where the Directorrequires 24 hour notice, if theinformation is provided orally, a writtensubmission covering the informationmust be provided within five days of thetime the permittee becomes aware of thecircumstances covered by thisparagraph. This requirement shall notapply to NPDES discharges subject tosubparagraph (2)(iij.

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[Comment. The Director may require apermittee to report noncompliance within 24hours under paragraph (h)(2)(i) when thenoncompliance involves CWA section 311pollutants, toxic pollutants or pollutantswhich could cause a threat to public drinkingwater supplies; or, in the event of a release ordischarge 'of hazardous waste, a fire or anexplosion from a HWM-facility that has thepotential for damaging human health or theenvironment, the permittee shall report suchan incident immediately after discovering itas required in 40 CFR Part 250, § 250.43-3(c).]

(ii) In the case of any discharges froman NPDES-permitted facility subject toany applicable toxic pollutant effluentstandard under section 307(a), theinformation required by subparagraph(1) regarding a violation of suchstandard shall be'provided within 24hours from the time the permitteebecomes aware of the circumstances. Ifthis information is provided orally, awritten submission covering thesepoints shall be provided within fivedays of the time the NPDES permitteebecomes aware of the circumstancescovered by this paragraph.

(3) Where a permittee orally-reports aviolation within 24 hours in accordancewith paragraphs (h)(2)(i) or (ii], theDirector may waive, on a case-by-casebasis, the requirement that a writtensubmission be provided within five daysof the time the permittee becomes awareof the violation.

(4) In all cases not covered bysubparagraph (2), information requiredunder subparagraph (1) shall beprovided in accordance with therequirements of § 122.15.

_i) The permittee shall take allreasonable steps to minimize anyadverse impact on the environmentresulting from noncompliance with thepermit.

(I) The permittee shall halt or reduceits business activities whenever and tothe extent necessary to maintaincompliance with the terms of a permiL

(k) The permittee shall at all timescomply-wvith the requirements fortesting, monitoring, recordkeeping, andreporting as specified in the permit andin applicable regulations. The permitteeshall not falsify, tamper with orknowingly render inaccurate anymonitoring device or method referred bythe permit or regulations; or knowinglymake a false statement, representations,or certification, in any document orrecord required under the permit or byregulations.

§ 122.12 Schedules of compliance.

(a) The permit shall specify a scheduleof compliance leading to expeditiouscompliance, where appropriate.

[Comment- For NPDES permits, schedulesof compliance are required where necessaryto achieve compliance with applicablestandards and limitations and otherrequirements. NPDES new dischargers,sources which recommence discharging afterterminating operations and those sourceswhich had been indirect dischargers whichcommence discharging into navigable watersdo not qualify for compliance schedulesunder this section and are subject to§ 122.81(d)(4). Schedules of compliance shallrequire compliance as soon as possible, butin no case later than the applicable statutorydeadline under the CWA.]

(1) Except as provided in paragraph(b) and (d), if a permit establishes aschedule, of compliance which exceeds 9months from the date of permit issuance,the schedule of compliance in the permitshall set forth interim requirements andthe dates for their achievement.

fi) In no event shall more than 9months elapse between interim dates.

(ii) If the time necessary forcompletion of any interim requirements(such as the construction of a controlfacility) is more than 9 months and isnot readily divisible into stages forcompletion, the permit shall specifyinterim dates for the submission ofreports of progress toward completion ofthe interim requirements and indicate aprojected completion date.

[Comment. Examples of interimrequirements include: 1) let a contract forconstruction of required facilities; 2]commence construction of required facilities,3) complete construction of required facilities;and 4) submit a complete Step 1 constructiongrant (for POTW's.]

(2) Except as provided in paragraph(d), no later than 14 days following eachinterim date and the final date ofcompliance, the permettee shall providethe Director w-ith written notice of thepermittee's compliance ornoncompliance with the interim or finalrequirements.

(3)(i) The Director, uponrequest of thepermittee, may modify, in accordance'with § 122.9, a schedule of compliance inan issued permit if he/she determinesgood and valid cause exists for suchrevision, such as an act of God, strike,flood, or materials shortage or otherevents over 4vhich the permittee haslittle ol no control or remedy. However,in no case shall an NPDES complianceschedule be modified to extend beyondan applicable CWA statutory treatmentdeadline.

(iI) In the case of a POTW which hasrecived a grant under section 202(a)(3)of CWA, to fund 100% of the costs tomodify or replace facilities constructedwith a grant for innovative andalternative wastewater technologyunder section 202(a)(2), the schedule of

compliance for an NPDES permit may bemodified to reflect the amount of timelost during construction of theinnovative and alternative facility. In nocase shall the compliance schedule bemodified to extend beyond anapplicable CWA statutory deadline forcompliance.

(b) Where an applicant for an EPA-issued UIC or RCRA permit chooses tocease conducting regulated activitiesrather than taking steps to meet permitcontrol requirements, the Director mayestablish two alternative schedules ofcompliance in the permit:- (1) A schedule leading to terminationand/or proper closure In accordancewith regulations under the appropriateAct or regulations by the predictedtermination or closure date. If at anytime the permittee chooses not toterminate his/her regulated activitiesand cease conducting regulatedactivities according to this schedule, thesteps required under subparagraph (2)below shall be met; and

(2) A schedule which would result Incompliance with the appropriate Actand regulations. In no event shall apermittee be authorized to operatewithout complying with this schedule,even where the permittee actuallyterminates his/her operations and laterresumes these or other operations.

(c) A perinittee may terminate Itsdirect discharge by cessation ofoperation or discharge to a POTWrather than achieve applicablestandards and limitations by the finaldate for compliance established in Itspermit or in CWA under the followingcircumstances:

(1) If the decision to terminate a directdischarge is made after issuance of apermit:

(i) The permit shall be modified orrevoked and reissued to contain aschedule of compliance leading totermination of the direct discharge by adate which is no later than the statutorydeadline; or

(ii) The permittee shall terminatedirect discharge before noncompliancewith any interim requirement specifiedin the schedule of compliance in thepermit.

(2) If the decision to terminate a directdischarge is made before Issuance of thepermit, the permit shall contain aschedule leading to termination of thedirect discharge by a date which Is nolater than the statutory deadline.

(3) If the permittee conteniplates buthas not made a fmal deciplon toterminate the direct discharge before theissuance of the permit, the permit shallcontain alternative schedules lepdng tocompliance as follows:

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(i) The schedule shall contain aninterim requirement requiring such afinal decision no later than a date whichallows sufficient time to comply withapplicable limitations and standards inaccordance with paragraph (iii), (i.e., amilestone event for commencement ofconstruction of control equipment; and

(ii) A subsequent schedule leading totermination of the divide discharge by adate which is no later than the statutorydeadline;

(1i) A subsequent alternative scheduleleading to compliance with applicablestandards and limitations, no later thanthe statutory date; and

(iv) A requirement that after thepermitee has made a decision pursuantto paragraph (3(i), it shall: -

(A) Follow the schedule required byparagraph (3)(H) if the decision is toterminate its discharge; or

(B) Follow the schedule required byparagraph (3)(ill) if the decision is not toterminate its discharger; and

(4) If the permittee has made adecision to terminate its direct dischargein accordance with this section. it shallnot post a bond within 30 days of permitissuance, or the date of the decision, inthe amount of the cost of compliancewith-applicable limitations andstandards, payable to the permit issuingauthority in the event that terminationor compliance with applicablelimitations and standards is notachieved by the statutory deadline orthe date set forth in the permit, if earlier.(5) In all cases, the permittee's

decision to terminate his/her directdischarge of pollutants shall beevidenced by a Board of Director'sresolution which has been made publicor by such other means as EPAdetermines evidence a firm publiccommitment.

[Commen: A permittee may evidence afirm public commitment: (1) by a resolution ofthe Board of Directors signed by theChairman of the Board and the ChiefExecutive Officer, (2) in the case of a publicfacility, by appropriate action by either theprincipal executive officer or elected officialof (3] as otherwise appropriate forpartnerships, sole proprietorship, etc.]

(6) Where a source recommencesdischarge after terminating operations,or where an indirect source commencesdirect discharge to navigable waters,any permit issued to such source shallrequire the source to meet all applicablestandards and limitations.as specified in§ 122.81(d)(4).

(d](1) Where agreed to in theMemorandum of Agreement anapproved State program may useintervals of up to one year (rather than 9

months) for establishing interimrequirements under subparagraph (a)(1).

(2) State programs may provide for upto 30 days (rather than 14 days) forreporting compliance or non-compliancewith interim or final requirements undersubparagraph (a) (2).

§ 122.13 Establishing permit terms andconditions.

Permit terms and conditions shall beestablished in permits as set out inSubpart B through D, as appropriate.

§ 122.14 Recording and reporting ofmonitoring results and compliance bypermittees.

(a) All permits shall include:(1) Requirements concerning the

proper use, maintenance, andinstallation, where appropriate, ofmonitoring equipment or methods(including biological monitoringmethods where appropriate), and

[Comment: Generally installation ofmonitoring equipment is not required underthe UIC program.]

(2) Required monitoring frequency,type and intervals sufficiently frequentto yield data which are representative ofthe monitored activity, including, whereappropriate, continuous monitoring.

(b) Samples and measurements takenfor the purposes of this Part shall berepresentative of the volume, weight.pressure or nature of the monitoredactivity-

(c) The permittee shall maintainrecords of all such monitoringinformation (including all original stripchart recordings for continuousmonitoring instrumentation and'calibration and maintenance records).Such records shall be retained by thepermittee for three years. This period ofretention shall be extendedautomatically during the course of anyunresolved litigation regarding theregulated activity or regarding controlstandards applicable to the permittee; oras requested by the Director. Suchrecords shall include:

(1) The date, exact place and time ofsampling, or measurements:

(2) The person(s) who performed thesampling or measurements;

(3) The date(s) analyses wereperformed;

(4) The person(s) who performed theanalyses;

(5) The analytical techniques ormethods used; and

(6) The results of such analyses.(d) Permittees shall report the results

of any monitoring specified in the permitto the Director on an EPA-approvedform as often as required by the permit.but in no case less than once per year.

Reporting frequency requirements willbe based upon the minimum intervalsspecified in Subparts B-D, and. inaddition. upon the impact of theregulated activity.

[Commen- NPDES permittees must reportmonitoring results on a Discharge MonitoringReport (DMR). NPDES permittees need notsubmit data on Internal process of wastestreams, or data collected by third partiesunless It Indicates a violatloiZhbut shall beIdentified as a supplement to the DMR.]

(e) The permittee shall provide theDirector with written notice of thepermittee's compliance ornoncompliance with the interim andfinal compliance schedule requirementsin accordance with § 122.12(a](2) and(b)(2).

§122.15 Noncomplance reporting.Reports shall be prepared and

submitted by the Director as detailedbelow and in §§ 122.27,122.43,122.72and 123.113.

(a) Quarterly Report. Narrativereports of noncompliance by majorRCRA. UIC, NPDES and section 404permittees shall be submitted using thefollowing format:

(1) Name, location. and permit numberof each noncomplying permittee;

(2) A brief description and date ofeach instance of noncompliance.Instances of noncompliance may includeone or more of the following:

(i) Failure to complete constructionelements;

(U) Failure to complete or providecompliance schedule reports;

(il) Noncompliance with applicablestandards and limitations;

(iv) Failure to provide effluent, orother monitoring reports as required bythe permit; and

(v] Deficient reports.(3) A brief description and date(s) of

action(s) taken bythe Director to ensurecompliance;

(4) Status of the instance ofnoncompliance with the date of theaction or resolution; and

(5) Any information which tends toexplain or mitigate an instance ofnoncompliance or to explain actions bythe Director.

(b) Annual Reports. (1) Statisticalreports shall be submitted on minorRCRA, UIC and NPDES permittees,where compliance has been reviewed bythe Director. indicating number ofnoncomplying minor permittees, numberof enforcement actions, and number ofchanges in permit status.

(2) Additional information for RCRA.UIC, NPDES and section 404 programs isdetailed in §§ 122.27, 122.43,122.72 and123.113.

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[Conment: For the distinction between"major" and "minor" permittees under RCRAsee § 122.3(b) (definition of "major HWMfacility"). The distinction between "major"and "minor" permittees for NPDES, UIC andsection 404 is,established in EPA's annualoperating guidance for the EPA RegionalOffices and the States.]

(c) Reports required under th is sectionfrom the State Director shall be.submitted to the RegionalAdministrator, and reports from theRegional Administrator shall besubmitted to EPA Headquarters.

§ 122.16 Confidentiality of Information.(a) Except as provided in paragraph

(b), any information submitted to EPApusuant to these regulations may beclaimed as entitled to confidentialtreatment by the submitter. Any suchclaim must be asserted at the time ofsubmission in the manner prescribed onthe application form or instructions or,in the case of other submissions, bystamping the words "'confidentialbusiness information" on each pagecontaining such information. If no claimis made at the time of submission, EPAmay make the information available tothe public without further notice. If aclaim is asserted, the information will bedisclosed only in accordance with theprocedures in Part 2 of this title.

(b]The following information may notbe accorded confidential treatment;

(1) The name and address of anypermittee;-(2) Pernits, draft permits, fact sheets,

comments received by the permit issuingauthority with respect to draft orproposed permits and statements ofbasis;

(3] In the case of section 402 and 404permits under CWA, permit applicationsand effluent data; and

(4] In the casb of UIC permits, anyinformation applications and effluentdata.

Subpart B-Additional Requirementsfor Hazardous Waste Programs Underthe Resource Conservation andRecovery Act

4 122.21 Purpose and scope.(a) The requirements in this Subpart

contain the specific elements and permitconditions for the RC13A hazardouswaste permit program. They apply toEPA, and to approved States to theextent set forth in part 123. In case ofinconsistencies between this Subpartand Subpart A-of this Part, this Subpartis controlling.

(b) Six months after the date ofpromulgation of regulations undersection 3001 of RCRA, 40 CFR 250,Subpart A (proposed at 43 FR 58954

(December 18, 1978]), the storage,treatment and disposal of hazardouswaste is unlawful unless owners/operators of existing Hazardous WasteManagement facilities have notifiedEPA under 40 CFR 250 Subpart G§ 250.800 (proposed at 43 FR 2991 (July11, 1978)], and have submitted a permitapplication in accordance with thisSubpart and Part 124.

(c)(1] Any hazardous Waste storagepits, ponds, or lagoons and/or storagetanks and any distribution systemswhich are associated with anunderground injection well that receiveshakardous waste(s) must obtain a RCRApermit.

(2) Any one/shore hazardous wastetreatment or storage facilities associatedwith an ocean disposal operation mustobtain a RCRApermit.

(3) Any.surface impoundmentassociated with h wastewater treatmentplant, other than a POTW, that treatsand/or stores hazardous waste mustobtain a RCRA permit for that part ofthe facility upr to the point of discharge.

[Comment" See 40 CFR Part 250.45-3(proposed at 43 FR 59011 (December 18,1978)).]

(4] Any on-site treatment, storage, ordisposal facilities for managinghazardous wastes resulting fromtreatment or control of wastewaters bya wastewater treatment plant, otherthan a POTW, must obtain a RCRApermit.

§ 122.22 Law authorizing-hazardous wastecontrol program.

Sections 3001 through 3005 of RCRAauthorize EPA to promulgate regulationsestablishing a Federal hazardous wastemanagement program. Section 3006 ofRCRA authorizes EPA to promulgate

. guidelies for State assumption andoperation of the hazardous wastemanagement program (with EPAapproval) in lieu of a Federal program.

[Commen. Regulations under Sections3001, 3002, and 3004 are published at 40 CFR250, Subparts A, B, and D, (proposed at 43 FR58946 (December 18, 1978)). Regulationsunder Section 3003 are published at 40 CFR250, Subpart C, (proposed at 43 FR 18506(April 28, 1978)). Regulations under Section3010 are published at 40 CFR 250, Subpart G,(proposed at 43 FR 29908 (July 11, 1978].]

§ 122.23 Application for a permit(a) Any lierson who owns or operates

an "existing HWM facility" as definedin § 122.3 of this Part, shall:

(1) Notify as required by 40 CFR Part250, Subpart G (proposed at 43 FR 29911(July 11, 1978)]; and

(2] Submit Part A of the permitapplication within six months after the

date the regulations under 40 CPR Part250, Subpart A (proposed at 43 FR 58940(December 18, 1978)] are promulgated, Inorder to qualify for Interim status underRCRA. To satisfy the applicationdeadline of this subsection, and toqualify for interim status under RCRA,an applicant shall submit only theinformation required in Part A of theapplication, or in the case of anapplication for a special HWM facilitypermit under § 122,25, the applicationshall contain the requirements specifiedin the appropriate subsection of § 122,25.The Director shall advise the applicantof the receipt of Part A of theapplication. This advisement shallsignify the beginning of interim status Ifthe application was timely submitted. Adate-for'submission of Part B of theapplication shall be established by theDirector at a later date. The Directorshall provide at least six months noticefor the submission of Part B of theapplication. Failure to submit anadequate Part B of the application bythe date established by the Directorshall result in automatic loss of interimstatus on such date.

[Comment" Owners or operators of existingHWM facilities under interim status whoelect to modify these facilities mustnevertheless meet the requirements of 40 CFRPart 250, Subpart D (proposed at 43 FR 5094(December 18,1978)) at the time that a permitis issued for the facility. Any modificationmade during interim status Is thereforesubject to the review of the Director at thetime of permit Issuance and Is undertaken atthe risk that additional changes to the facilitywill be required in.order to meet therequirements of 40 CFR Part 250, Subpart D.]

(b] Owners/operators of new HWMfacilities shall submit both a Part A anda Part B application at least 180 daysbefore physical construction is expectedto commence. No physical constructionshall commence until a final permit isissued. In the case of an application fora special HWM facility permit under§ 122.25, the application shall containthe requirements specified in theappropriate subsection of § 122.25,

(c) Part A of the Application shallinclude the following as a minimum:

(1] Name, title and address of theapplicant; name and addreos of thefacility;

(2) A description of the boundaries ofthe HWM facility, including atopographic map of the area for adistance of one mile (1.6km) beyond theboundaries of the HWM facility asrequired in the permit application forms,This map shall correspond to a 71/minute series map published by the U.S,Geological Survey. If a 71/a minute series

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map is not available, a 15 minute seriesmap may be substituted.

(3) A detailed description of thehazardous waste to be handled at theHWM facility (name and common code)by its Department of Transportation(DOT) proper shipping name (49 CFRPart 172), § 172.101 fproposed at 43 FR22631 (May 25,1978)). If the DOT propershipping name "NOT OTHERWISESPECIFIED" (NOS) is used, the EPAname (as identified in 40 CFR Part 250,§ 250.14 (proposed at 43 FR 58957-9(December 18, 1978)) must be includedafter the DOT proper shipping nameNOS. If no EPA name exists, then onlythe DOT proper shipping name NOSshall be used-,

(4) The hazard class of each waste asidentified or listed under DOT hazardclass (49 CFR Part 172), § 172.101(proposed at 43 FR 22631 (May 25,1978))or by the EPA characteristics (asidentified in 40 CFRPart 250, § 250.13(proposed at 43 FR 58955-7 (December18,1978)) if the DOT hazard class is notapplicable. If the DOT hazard class"OTHER REGULATED MATERIAL"(ORM) is used, the EPA characteristic orproperty, as identified in 40 CFR Part250, § 250.13 (proposed at 43 FR 58955-7(December 18,1978)) must be used afterthe DOT hazard class ORM;

(5) The annual quantity of eachhazardous waste to be treated, stored ordisposed by volume or weight, in eitherthe metric or the English system;

(6) A brief description of how thehazardous waste is to be treated, storedor disposed of at the HWM facility;, and

(7) For an existing HWM facility,copies of all available drawings andspecifications for the HWM facility, itsprocesses and equipment.

(d) Part B of the Application shallinclude the following as a minimum:

(1) A master plan for the HWMfacility, including a-topographic mapwith a scale of one inch (2.5 cm) equal tonot more than 200 feet (60.8 m) and acontour interval not greater than fivefeet (1.5 m) for the area within onethousand feet (304 m) of the boundariesof the HWM facility and indicating anyfive-hundred-year flood prone areas.The master plan shall include a detaileddescription of:

(i) For a new HWM facility, or formodification to an existing facility, anystructures, buildings, equipment andmachinery to be used at the HWMfacility including site preparation plans,design plans and specifications fortreatment, storage or disposal facilities;

(ii) A detailed plan of operation andmaintenance, including operatingconditions, projected hours of operation,security and access control, plans for

covering and compaction, plans forcontrolling odor, air, surface water and/or groundwater pollution, plans forcontrolling leachate production, plansfor vector control and control ofburrowing animals, and other relateditems;

(iii) The planned life of the HWMfacility based on projected use and theexpansion potential and plans for theuse or disposition of the HWvM facilityafter closure;

(iv) The contingency plan foremergency situations, including theprocedures, equipment and facilities tobe used, a listing of the fire departments,ambulance services, hospitals, and otheremergency services that will serve thefacility and the response time, theperson responsible for implementing thecontingency plan, the on-site plan forfire control, spill prevention control andcountermeasure plans under section 311of CWA, best management practicesunder sections 304(c) and 402(a)(1) ofCWA (see 40 CFR Parts 125 and 151),and 40 CFR Part 250, § 25.43-3(proposed at 43 FR 59001-2 (December18,1978));

(v) The plan for closure of the HWMfacility, including the estimated cost ofclosure, post closure expenses,proposals for controlling access, stepsthat are planned to control leachateproduction; and the plan formaintenance of the HWM facility afterfinal closure for disposal operations;

(vi) The plan for visual inspections ofthe HWM facility conditions and formonitoring air. surface water, andgroundwater pollution, including theperiod after closure;

(vii) The plan for segregation ofincompatible wastes and how wasteswill be placed or located within thetreatment, storage, or disposal facility;and

(viii) The plan for conducting trialburns at incinerator facilities asrequired under 40 CFR Part 250,§ 250.45-1. (proposed at 43 FR 59006(December 18, 1978)).

(2) A detailed description of sitegeology of the area within one thousandfeet (304 m) of the boundaries of theHWM facility, including a description ofphysiography, soil depth and typesincluding chemical and physicalproperties; and a detailed description ofthe geologic column including intrusivebodies, fluids, fractures, faults, joints,and fracture traces. Where access toadjacent properties for obtaininggeological data is not reasonablyavailable, data available from publicsources may be substituted.

(3) For HWM disposal facilities andHWM surface impoundment facilities, a

detailed description of the sitehydrology and the hydrology of the areawithin one thousand feet (304 m) of theboundaries of the facility, includingknown or recorded springs, depth toground water, thickness, extent.characteristics of aquifers, perchedwater zones, porosity and permeabilityof soils, directions and rate of flow ofgroundwater, recharge and dischargeareas, drainage patterns and divides.distance to surface water, location ofpublic, livestock, and private watersupplies, background quality ofgroundwater as specified in 40 CFR Part250, § 250.43-8(c)(1) (proposed at43 FR59005 (December 18.1978)) and otherrelated items. Where access to adjacentproperties for obtaining hydrologicaldata Is not reasonably available, dataavailable from public sources may besubstituted.

(4) A description of the climate in thearea, including average annual rainfall,average annual evapotranspirationrates, average annual wind speed,prevailing wind direction, and otherfactors that may affect water or airpollution.

(5) Position or job descriptionscovering the persons responsible forthe'operation of the HWM facility, includingeducation, training, and workexperience requirements and adescription of the training program to beused to prepare persons to operate andmaintain the facility in a safe andenvironmentally adequate manner.

(6) A listing of the applicant'sperformance bonds, insurance carriersand policies, trust instruments, escrowaccounts or other instruments whichconstitute continued financialresponsibility in accordance withstandards in 40 CFR Part 250, § 250.43-9(proposed at 43 FR 59006--7 (December18.1978)).

(7) The Director. upon the writtenrequest of the applicant, may waivecertain of the application requirementsin Part B of the Application if helshedetermines that the information is notapplicable to the facility and is notneeded to establish compliance with thestandards in 40 CFR 250.42 and 250.43(proposed at 43 FR 58999 (December 18,1978)). A request for a waiver of certainPart B application information shall besubmitted in writing by the applicantand shall state why the specifiedinformation is not needed to determinecompliance with the standards in 40CFR 250.42 and 2.50.43 (proposed at 43FR 58999 (December 18,1979)). TheDirector shall grant or deny the waiverrequest in writing, including a statementof the reasons for the decisions.

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[Comment;- Examples of where suchwaivers may be granted include the waiver ofsite geological information for facilities thatonly incinerate hazardous waste and disposeof any residues off-site, and site geologicalinformation for above-ground storage tanksthat are not associated with any othertreatment, storage, or disposal HWAMfacilities] _.

(8) The Director shall determinewhether or not an application of permitis complete and shall notify theapplicant in writing of suchdetermination within 30 days of receiptof such application. The applicationshall not be considered as submitted tothe Director until it is in complete form.

(9) Where an approved State is the -permit-issuing authority, the applicationmust contain at least the informationrequired under this section, paragraph"(c), and paragraph (d) unless waivedunder § 122.23(d)(7).

§ 122.24 Establishing permifterms andconditions. •

In addition to the terms andconditions specified in Subpait A of thisPart, any RCRA permit shall include the-following terms and conditions: -

(a) Each of the applicablerequirements specified in 40 CFR 250.43,250.44, 250,45 and 250.46 (proposed at 43FR 58999-59016 (December 18, 1978)), "except where an alternative requirementis established and included in the permitin accordance with 40 CFR 250.43,250.44, 250.45 and 250.46;

(b) Such additional requirements asthe Director deemp nesessary to complywith the human health andenvironmental standards in 40 CFR250.42 (proposed at 43 FR 58999(December 18, 1978.)].

(c) Requirements-alternative to thoseestablished in the regulations inaccordance with the variance criteriaincorporated in the notes in 40 CFR250.43-45 (proposed at 43 FR 58999-59016 (December 18, 1978)].

(d) Provisions for minor modificationto a permit undek § 122.9(g) (5) and (6),where appropriate. The Director shallissue a public notice in accordance with§ 124.11 prior to or at the time-that he/she approves such minor modification.

(1) Minor modifications may be madeunder this paragraph only where theDirector determines that a particularHWM facility has the capacity andequipment necessary to handle a varietyof different types of hazardous wastewithout violating any other permit termsand conditions or the requirementsspecified in 40 CFR 250.43,-250.44, 250.45and 250.46 (proposed at 43 FR 58999-59016 (December 18, 1978)), and wherethe facility can demonstrate that it will

receive different quantities and/or typesof hazardous wastes on anunpredictable basis.

(2] In modifying the permit under thisparagraph, the Director may limit thetypes and/or quantities of hazardouswastes that can be the subject of minormodifications under § 122.9(g) (5) and(6).

[Comment. Provisions for minormodifications under this paragraph and§ 122.9(g) (5] and (6) are not intended to begenerally included in RCRA permits, but areappropriate only under certain limitedcircumstances as specified in this paragraph,and at the discretion of the Director. Thisparagraph does not apply where the types orquantities of wastes can be anticipatedthrough contract provisions or by othermeans, making it possible to includeprovisions covering such wastes in the initialpermit. Modifications not covered by thisparagraph must comply with the applicablerequirements of § § 122.9.124.5 and 124.7.]

(e) No HWM facility shall commencetreatment, storage or disposal of

-hazardous waste in a modified or newlyconstructed facility until suchconstruction or modification is complete;and

(1) The permittee has submitted to theDirector a certified letter signed by thepermittee and a registered professionalengineer in the State where the facilityis located, stating clearly thatconstruction or modification of thefacility has compiled with the permit,and in the case of incinerator facilities, atrial burn and result analysis has beencompleted and is submitted to theDirector, and

(2) The Directoi has inspected themodified or newly constructed facilityand finds that the facility is incompliance with all terms of the permit;provided that, the Director has notifiedthe permittee, within ten (10) days ofreceipt of such letter, of his/her intent toinspect;'and

(3) The Director authorizescommencement of treatment, storage, ordisposal of hazardous waste.

(f) Where an approved State is thepermit-issuing authority, the permit mustestablish such terms and conditions asare necessary to provide a degree of 'control and protection of human healthand the environment equivalent to thatrequired under this section.

§ 122.25 Special HWM facility permits.(a) Health Care Facility Special

Permit. (1J A person who owns oroperates a health care facility whichtreats or stores hazardous waste mayapply for a health care facility specialpermit if the following conditions aresatisfied:

(i)*The Health care facility is licensedunder a State licensing law and suchlicense requires compliance with"requirements for the storage,sterilization, inceneration, or treatmentof all hazardous waste generated;

(il) The State licensing law andcontrol program provides for theadequate enforcement of the program bywithholding or withdrawing the licenseof the health care facility wherecompliance with license requirements Isnot being achieved;

(iii) If incineration is used, the,incinerator is operated under the termsand conditions of a license issued underapplicable State law and

(iv) The person owning or operatingthe health care facility submits acertification of compliance with anissued license signed by the appropriateState licensing official.

(2) An applicant for a health carefacility special permit shall submit thefollowing information:

(i) The name and address of thefacility;

(ii) Certification signed by theappropriate State licensing authorityspecifying that the facility has aneffective license and is in compliancewith such license; and

(iii) A list of the hazardous wastescovered by the State license.

(3) The licensing law requirements ofa State shall be judged against theapplicable RCRA 3004 standards, 40CFR 250, Subpart D (proposed at 43 FR58982 (December 18, 1978)) to determineif an equivalent degree of control Isprovided.

(4) Whenever the conditions ofsubparagraph (1) are not being met, thehealth care facility loses eligibility for aspecial permit under this section,

[Comments: (1) Health care facilitiesinclude hospitals as defined by SIC Codes

-8062 and 8069 and veterinary hospitals asdefined by SIC Codes 0741 and 0742, See 40CFR 250.14(b)(1)(l) (proposed at 43 FR 58958(December 18, 1978)).

(2) Under § 123.39, States are authorized,but not fequired, to Issue special facilitypermits in the same manner and covering thesame facilities as those covered by EPAunder this section.]

(b) Experimental Special Permit. (1)The Director may grant an experimentalspecial permit to a person for thetreatment, storage, or disposal ofhazardous waste using advancedtechnology where the Directordetermines that such technology willsignificantly improve the state-of-the-artfor hazardous waste treatment, storageor disposal.

(2) An applicant for an experimentalspecial permit shall submit all of the

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applicable information specified in§ 122.23(c) and (d) and such otherinformation as the DirectoR may requireincluding plans for the imniediatetermination of all acitvities if intendedresults are not achieved.

(3) In granting an experimental specialpermit, the Director shall require thesubmission of an evaluation of testresults and shall set a specific date forits termination which shall not exceed-one (1) year. An extension of no morethan one additional year may be grantedby.the Director upon written request

* from the permittee, including thesubmission of such information as theDirector may require, including a fullevaluation of any test results from thefacility for the period of operation.

[Comment Under § 123.39. States areauthorized, but not required, to issueexperimental special permits in the samemanner and covering the same facilities asthose covered by EPA under this section.]

§ 122.26 Permits by rule.

(a) Permit by Rule for HWM FacilityAccepting Special Waste. A facilitywhich treats, stores, or disposes onlyspecial wastes and does not comingledifferent types of special wastes, aslisted in 40 CFR 250.46 (proposed at 43FR 59015 (December 18, 1978)), shall beconsidered as having a permit for thetreatment, storage or disposal of suchwastes if the owner/operator of thefacility complies with all the applicablerequirements for control of specialwastes, as specified in 40 CFR 250.46,including the notes thereunder,(proposed at 43 FR 59015 (December 18,1978)), and notifies EPA In accordancewith 40 CFR Part 250, Subpart G(proposed at 43 FR 29908 (July 11, 1978)).

[Comment- Special wastes are: CementKiln Dust Utility Waste (fly ash, bottom ash.scrubber sludge); Phosphate Rock Mining,Beneficiation, and Processing Waste;Uranium Mining Waste; Other Mining Waste;and Gas and Oil Drilling Muds and OilProduction Brines. These wastes, typically,are generated in large volumes and someportions are expected to be classified ashazardous under the Section 3001 standards.The Agency, however, has very littleinformation on the composition.characteristics, and the degree of hazardsposed by these wastes. Therefore, the Agencyis proposing to remove the provisionrequiring facilities to obtain site-specificpermits. Moreover, EPA requests commentson alternate approaches, such as the use ofeither a general permit (applicable to manysites, rather than only one site], or of specialsite-specific permits of the type proposed in§ 122.25 of this Subpart. Finally, the Agencyrequests comments on the applicability ofthese approaches to assessing equivalency ofState programs as required under Part 123].

[Commentk Under § 123.39. States areauthorized, but not required, to Issue permltsby rule in the same manner and covering thesame facilities or circumstances as thosecovered by EPA under this section.]

(b) Permit by Rule for Ocean DisposalBarges or Vessels. A barge or othervessel which accepts hazardous wastefor ocean disposal shall be deemed tohave an HWM facility permit if thefollowing conditions are met-

(1] The owner or operator of the bargeor vessel is authorized to ocean dumpsuch waste under an ocean dumpingpermit issued to him or her under 40CFR Subchapter H;

(2) The owner or operator of the bargeor vessel complies with the terms of hisor her ocean dumping permit; and

(3) The owner or operator of the bargeor vessel complies with the followinghazardous waste treatment, storage anddisposal facility regulations, asapplicable:

(i) 40 CFR Part 250, Subpart G(notification);

(ii) 40 CFR 250.43-5(a), (manifestsystem);

(iii) 40 CFR 250.43-5(b)(6)(recordkeeping); and

(iv) 40 CFR 250.43-5(c)(5)(i}-(ii)(A)-(F), (H); and (c)(6) (reporting).

[Comments: (1) Shoreside facilities ofocean disposal operations which handlehazardous wastes will require regular RCRApermits. However, disposal vessels whichdump wastes into the ocean are adequatelyregulated by the Marine Protection. Researchand Sanctuaries Act, as amended. 33 U.S.C.1420 et seq. Even so, to assure the smoothoperation of the manifest system, suchfacilities will have to comply with manifest.recordkeeping and reporting requirements.

(2) Under 123.39, States are authorized,but not required, to Issue permits by rule inthe same manner and covering the samefacilities or circumstances as those coveredby EPA under this section.]

(c) Permit by Rule for PubLicly OwnedTreatments Works (POTIVs). A publiclyowned treatment works (P0T13) whichaccepts for tieatment hazardous wasteshall be deemed to have a IWM facilitypermit if the following conditions aremet:

(1) The POTW has an NPDES permit;(2) The POTW complies with the

terms of its NPDES permit;(3] The waste meets all Federal, State

and local pretreatment requirementswhich would be applicable to suchwaste if it was being discharged into thePOTW through a sewer, pipe or similarconveyances; and

(4) The owner/operator of the POTWcomplies with the following hazardouswaste treatment, storage and disposalfacility regulations, as applicable:.

(1) 40 CFR Part 250, Subpart G(notification);

(ii) 40 CFR 25043-5(a) (manifestsystems):

(ill) 40 CFR 25o.43--S(b)(6)(recordkeeping); and

(iv) 40 CFR 250.43--5(c) (5) (i)-{iii) (A)-(F), (H); and (c)(6) (reporting).

[Comments: (1) General pretreatmentregulations are found at Part 403 of thisChapter and specific pretreatmentrequirements for industrial categories arefound generally in Subchapter N of thisChapter (Effluent Guidelines and Standards].An industry generating hazardous waste andshipping waste to a POTIV must provide allthe treatment which would be required if theindustry were discharging the waste directlyInto the treatment system. POTWs whichreceive wastes that may be classified as"hazardous" but which are solid or dissolvedmaterials in domestic sewage do not comeunder these regulations because sections1004(5) and 1004(27) of RCRA exclude thesematerials from the definition of "hazardouswastes." These POTWs are controlled underthe NPDES system of the Clean Water Act.However, for those POTWs which receivehazardous waste for which a manifest orother delivery document is requiredcompliance with the manifest system.recordkeeping and reporting requirements isnecessary to assure the smooth operation ofthe manifest system.

(2) Under § 123.39, States are authorizedbut not required, to issue permits by role inthe same manner and covering the samefacilities or circumstances as those coveredby EPA under this section.]

§ 122.27 Reporting requirements.In addition to the reporting

requirements of § 122.15, the Directorshall prepare the following reports:

(a) Quarterly international shipmentreports. The Director shall submit twocopies of a report within four weeks ofthe last day of March, June, Septemberand December. The report shall containa compilation of shipments whichoriginated during the reporting quarterand were sent from generators andowners and operators of treatment.storage, and disposal facilities withinthe State to a location outside thejurisdiction of the United States. Suchreports shall contain the generator orHWM facility identification code, name,address, and the information requiredby 40 CFR 250.23(c) (2}-(7) (proposed at43 FR 58978 (December 18, 1978)).

(b) Annual program reports. TheDirector shall prepare two copies of aprogram report within four weeks of thelast day of September. The report shallcontain information (in a manner andform prescribed by the Administrator)on generators, transporters, the permitstatus of regulated facilities, andsummary information on the quantitiesand types of hazardous wastes

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generated, transported, stored, treatedand disposed during the preceding year.

(c) Reports required under this sectionfrom the State Director shall besubmitted to thd RegionalAdministrator, and reports from theRegional Administrator shall besubmitted to EPA Headquarters.

§ 122.28 Emergency authorization.

Notwithstanding any other provisionof this Part or Part 124, in the event of animmediate hazard to human health orthe environment (as determined by EPA,other Federal agencies or State or localauthorized officials) the Director mayissue temporary authorization to apermitted HWM facility to allowtreatment, storage or disposal ofhazardous waste not coverdd-by apermit. Such authorization:.

(a) May be oral or written. If oral, itshall be followed within 5 days bywritten authorization;- (b) Shall not exceed 90 days in

duration; -(c) Shall clearly specify wastes to be

received, and the manner, and locationof their treatment, storage or disposal;

(d) May be revoked by the Director atany time if he/she determines-thatrevocation is appropriate to protecthuman health and the environment; and

(e) Shall be accompanied by a publicnotice published according to methodsprovided in § 124.11(a)(2) and specifyingthe.

(1) Name and addre'ss of the officegranting the emergency authorization;

(2) Name and location of thepermitted HWM facility;

(3) Brief description of the wastesinvolved;

(4) Brief description of the actionauthorized and reasons for authorizingit; and

(5) Duration of the authorization.fComnenf" Under § 123.39, States are

authorized, but not required, to granttemporary authorization in the same mannerand covering the same facilities orcircumstances as those covered by EPAunder' this section.]Subpart C-Additional Requirements

for UIC Program Under the SDWA

§ 122.31 Purpose and scope.(a) The regulations in this Subpart set

forth the specific requirements for theUIC program. Additional generalrequirements have been set forth inSubpart A. In case of inconsistenciesbetween this Subpart and Subpart A,this Subpart is controlling.

(b) SDWA provides for authorizationof underground injections in listedStates by permit or, where provided for

by these regulations, by rule. ThisSubpart defines the types of activitiessubject to authorization by permit orrule, and sets forth the specific elementsapplicable to either type ofauthorization.

[Commentk References to Part 146, thetechnical regulations for the UIC program,appear frequently in this Subpart. Thesetechnical regulations were proposed on April20, 1978 (44 FR 237381.] "

§ 122.32 Law authorizing OIC program.(a) Section 1421 of SDWA requires the

Administrator to propose andpromulgate regulations istablishing (1)minimum requirements for UICprograms and (2) a proceduralmechanism whereby States may obtainEPA approval to operate such programs.

(b) Section 1422 of SDWA requires theAdministrator to-list in the Federal'Register "each State for which in hisjudgment a State underground injectioncontrol program may be necessary toassure that underground injection willnot endanger drinking water sources"and to establish by regulation a programfor EPA administration of UIC programsid the absence of a State program in alisted State.

(c) Section 1423 of SDWA providesprocedures for EPA enforcement of UICrequirements where the State fails toenforce those requirements.

(d) Section 1445 of SDWA authorizes(1) such recordkeeping, reporting, andmonitoring requirements "as theAdministrator may reasonably requireby regulation to assist him inestablishing regulations under this title,"and (2) a,"right of entry and inspectionto determine compliance with this title,including for this purpose, inspection, atreasonable times, of records, files,papers, processes, controls, andfacilities * * -*."

(e) Section 1450 of the SDWAauthorizes the Administrator "toprescribe such regulations as arenecessary or appropriate to carry out hisfunctions" under SDWA.

§ 122.33 Designation of undergrounddrinking water sources.

(a) The Director shall identify (bynarrative description, illustrations, mapsor other means) all aquifers or parts ofaquifers which are not undergroundsources of drinking water, in accordancewith the criteria contained.in § 146.04.The Director shall propose thisdesignation and provide opportunity forcomment and a public hearing on it. Allaquifers not so identified shall bedesignated underground sources pfdrinking water.

(b) Aquifers identified underparagraph (a) shall be described ingeographic and/or geometric terms(such as verlcal and lateral limits andgradient) which are clear and definite.

[Commenfr Aquifers not identified underparagraph-(a) of this. section may bedescribed by use of maps, where 'suchinformation i available, or by narrativedescription. Identifications of aquifers Iaccordance with paragraph (a) should beaccompanied by narrative devcriptions ofwhy those aquifers do not qualify fordesignation as underground sources ofdrinking water.]

(c) Where a UIC program Isadministered by a State, designationand identification by the State Directorunder this section shall be subject to theapproval of the Administrator at thetime of program approval under Part123.

[Commen Designation and Identificationsubsequent to program approvalshall betreated as program modifications under§ 123.6(b)(8).]

§ 122.34 Classification of Injection wells.

The Director shall classify injectionwells as follows:

(a) Class I: Industrial and municipaldisposal wells and nuclear storage anddisposal wells which inject beneath thelowermost stratum containing anunderground source of drinking water,

(b) Class 11: Well injection ofproduced water or other fluids whichare brought to the surface In connectionwith oil or natural gas production, wellinjection of fluids for enhanced recoveryof oil or natural gas and well injection offluids for storage of hydrocarbons,

(c) Class m: Well injection of fluidsfor special processes such as mining ofsulfur by the Frasch process, wellinjection for solution mining of uranium,salt, -potash, copper and other minerals,and well injection for in situ gasificationof oil shale, coal, lignite, tar sands andother similar fuel sources, ahd wellinjection to recover gas thermal energy.

(d} Class IV: Wells used by generatorsof hazardous wastes and owners oroperators of hazardous wastemanagement facilities (as defined In§ 122.3(b)) to inject into or above stratacontaining underground drinking watersources.

(e) Class V: Injection wells notincluded in Classes I, 11, Ill or IV(examples are recharge wells such assubsidence control wells, airconditioning or cooling water returnflow wells, and drainage wells; andwaste disposhl wells such as sandbackfill wells, non-residential septicsystem wells, dry wells, and industrialand municipal waste disposal wells).




§ 122.35 Authorization of undergroundInjection by rule.

(a) Types of underground injectionswhich may be authorized by rule. TheDirector may authorize undergroundinjections by rule in the followinginstances:

(1) Underground injection into allexisting class , II (except existingenhanced recovery and hydrocarbonstorage) and m wells may be authorizedby rule for a period up to 5 years fromthe effective date of the UIC program.All class L i1 and Ell wells exceptenhanced recovery and hydrocarbonstorage wells must be issued permitswithin five years in accordance with thepermitting schedule established by theDirector. All such authorizations by ruleshall require compliance with theapplicable monitoring, reporting andabandonment requirements of Part 146as soon as possible but no later than oneyear after the authorization by rule.

(2) Underground injections intoexisting enhanced recovery andhydrocarbon storage wells may beauthorized by rule, rather than bypermit, for the life of the welL All suchauthorizations by rule shall requirecompliance with the applicableconstruction, abandonment operating.monitoring, reporting, and financialresponsibility requirements of Part 146as soon as possible but no later than oneyear after the authorization by rule.

(3) Underground injections intoexisting class IV wells which havesubmitted the information requiredunder § 146.42 shall be authorized byrule ending at the time of their closureunder § 146.43(a). Such authorizationshall require monitoring and reportingas set forth in § 146.44 within 90 days ofthe authorization.

fConument: The operation of new Class IVwells shall be prohibited by rule. See§ 122.45.]

(4) Underground injections into classV wells which have submitted theinformation required under §146.52 maybe authorized by rule for a periodending at the time when newrequirements promulgated by EPAbecame applicable.

(b) Owners or operators ofunderground injection facilities whohave not complied with applicable rulesare subject to enforcement action by theState or, where appropriate, EPA.

§ 122.36 Authorization of undergroundInjection by permit.

(a) Who must apply. All undergroundinjections into Class I 11 (except existingenhanced recovery and hydrocarbon

storage) or III wells in listed States mustbe authorized by permit.

(b) Time to apply. Any person whoperforms or proposes an undergroundinjection for which a permit is requiredshall submit an application to theDirector in accordance with the StateUIC program (including the State permitplan under part 123) as follows:

(1) For existing injection wells, asexpeditiously as practicable and inaccordance with the schedule containedin State permit plan, but no later thanfour.years from the effective date of theState UIC program.

(2) For new injection wells, areasonable time before injection isexpected to begin. Injection may notbegin until the owner or operator hasreceived a permit

(c) Contents of UIC application.Applicants for UIC permits shall submitthe following information to theDirector.

(1) All applicants must submit theidentity of the owner or operator of theinjection operation, the location orproposed location of the injection well,and the purpose or function of the well.

(2) Applicants for State-issued permitsfor existing injection wells shall submitin addition to the information requiredby subparagraph (1), such otherinformation as the Director requires.

[Comment: In many Statestmost or all ofthe information which the Director mustconsider in writing permit conditions isalready contained in State files. Part 140Subparts B-D list the Information which theDirector must consider for various classes ofwells. The Director may review the State filesupon receipt of an application and thenrequire the applicant to submit anyapplicable information which either Is notcontained in the State file or Is in need ofcorrection or updating. Only new Informationsubmitted by the applicant that Is not alreadycontained in State files Is subject to thesignatory requirements of §122.5.]

(3) Applicants for State-issued permitsfor new injection wells shall submit, inaddition to the information required bysubparagraph (1), all additionalinformation which the Director will berequired under Part 146 to consider forthe applicable class of well. Certainmaps, sections, and tabulations of wellswithin the area of review (see §§ 146.15,146.25 and 146.36), may be included inthe application by reference providedthey are available to the Director andsufficiently identified to be retrieved.

(4) Applicants for EPA-issued permitsshall submit, in addition to theinformation required by subparagraph(1], all additional information which theDirector will be required under Part 146

to consider for the applicable class ofwell.

(d) Mechanical integrity. The Directorshall issue no permits to wells whichlack mechanical integrity as determinedunder § 146.08.

§122.37 Area permits.(a) The Director may issue permits on

a well-by-well basis or an area basis.provided that all injection wells coveredby an area permit are:

(1] Within a single well field project,or site in a single State;

(2) Covered by the application for thepermit;

(3) Of the same type as determinedunder § 122.34:

(4) Injecting into the same aquifer orzone; and

(5) Controlled by a single person.(b) Area permits shall specify the

boundary within which undergroundinjections are authorized-and shallidentify by location each injection wellcovered by the area permit.

(c) A permittee may obtainadministrative authorization from theDirector for additional new injectionwells within the permitted area withoutpublic notice and hearing:

(1) If the permittee notifies theDirector of his/her intent to place anadditional injection well within thepermitted area and provides informationon the location of the proposed well;

(2) If the permittee demonstrates tothe satisfaction of the Director that theadditional underground injection well issimilar in construction to wells alreadycovered by the area permits and willmeet the operation requirements of Part146; and

(3) Where authorization under thisparagraph Is obtained orally, theinformation in (1) and (2) must beprovided in writing within 30 days.

[Comment. Such authorization of additionalInjection wells does not constitute a permitmodification subject to § 122.9.]

§122.38 Correctlve action.(a) Where the Director's review of an

application for a class I, 11 (other thanexisting) or III well indicates that theproposed injection well's area of reviewcontains wells which are improperlycompleted and/or plugged or that theremedial actions proposed by theapplicant are inadequate, he/she shallprescribe such steps or modifications asare necessary to prevent fluid migration("corrective action"). In determiningsuch steps or modifications, the Directorshall consider the factors set forth in§ 146.07.

(b) In the case of a new or existingclass II injection well in an existing

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Injection field, the Director shall by rule(or by permit) require that where asource of leaking fluids may cause asignificant rikto public health, the leakshall be corrected in the shortestreasonabale period of time or theoperator shall cease injecting.

(c) In the case of an existing injectionwell which must be authorized bypermit, the Director shall issue thepermit with a condition that if anyrequired corrective action is notaccomplished within the shortestreasonable time, the permit shall berevoked.

(d) In the case of a new injection wellauthorized by permit, the operation shallnot begin unless all required correctiveaction has been taken.

(e) In the case of a class I, II or ll wellwhich is authorized by rule, if anymonitoring indicates thd migration ofinjection or formation fluids into-underground sources of drinking water,the Director shall prescribe suchadditional requirements fordnstruction, corrective action,operation, monitoring or reporting(including closure of the injection well)as are necessary to prevent suchmigration.

[Comment: In the case of wells-authorizedby permit, such additional requirements maybe imposed by modifying the permit inaccordance with § 122.9.]

(f) If at any time the Director gaihsknowledge of a Class V well whichpresents a significant risk to the healthof persons, he/she shall prescribe suchaction as necessary (including theimmediate closure of thi injection well)to remove such hazard.

§ 122.39 General prohibition againstmovement of fluid Into undergroundsources of drinking water.

No class I, II or I well shall cause orallow movement of fluid intounderground sources of drinking water.

§ 122.40 Temporary authorization.(a) Notwithstanding any other

provision of this Part, the Director may,in the following circumstances,temporarily authorize a specificunderground injection which has nototherwise been authorized by rule orpermit:

(1) An imminent and substantialhazard to human health or theenvironment will result unlesstemporary authorization is granted; or

(2] If a substantial and irretrievableloss of oil or gas resources will occurunless temporary authorization isgranted to a Class 11 well; and

(i) Timely application for a permitcould not have practicably been made;and

(it) The temporary authorization willnot result in the movement of fluids intounderground'sources of drinking water.

(b)(1) Any authorization underparagraph (a)(1) shall be'for no longerthan required to prevent the hazard orloss of such resources.

(2) An authorization under paragraph(a)(2) shall be for no longer than 90days, except that if a permit applicationhas been submitted prior to theexpiration of the 90-day period, theDirector may extend the authorizationuritil the permit is granted or denied.

Cc) Notice-of any authorization underthis paragraph shall b6published inaccordance with § 124.11 within 10 daysof the authorization.

§ 122.42 Establishing UIC permit termsand conditions.

(a) Permit terms and conditions shallat a minimum establish, in addition toterms and conditions required under§ § 122.9 and 122.11, the following:

(1) Construction requirements as setforth in Part 146;

(2) Corrective action as set forth in§ 122.38 and § 146.7; 1

(3) Operation requirements as setforth in Part 146;

(4) Monitoring and reportingrequirements, as set forth in § 122.12 andPart 146;

(5] Schedules of compliance.Schedules shall set forth dates whichare as eQrly as possible but no later thanthree years after the dates of permitissuance. No later than 30 daysfollowing each interim or final date, thepermittee shall provide the Director-withwritten notice of Compliance ornoncompliance with the interm of finalrequirements;

(6) Plugging and abandonment ofinjection wells. Where a permittee -intends to cease underground injection,the permittee shall immediately notifythe director and follow.the proceduresprescribed by the director for pluggingand abandonment of the well; and

.(7) Fiscal responsibility of permittees.The permittee shall maintain fiscalresponsibility and resources, in the forimof performance bonds or otherappropriate form, to close, plug andabandon the underground injectionoperation in a manner prescribed by theDirector.

[Comment. To assure that the well isconstructed and operated in accordance withthe requirements of Part 146, the permi'sho4ld set forth the specific data on whichthe permit is based. For example, the permitshould establish injection volumes and

pressures which will assure compliance withthe Part 146 operating requirements,

(b) The director may imposeadditional terms and conditions on acase-by-case basth if necessary toprevent the migration of fluids Intounderground sources of drinking water,

§ 122.43 Noncompliance reporting.

(a) The Director shall submit, as partof the quarterly report required under§ 122.15(a), information concerningnoncompliance by major undergroundinjectors with permit requirements orthe requirements of any applicable rule.

,(b) The'following shall be contained Inthe noncompliance report:

(1) Failure to Complete ConstructionElements. Noncompliance shall bereported in-the following circumstances:

(i) When an injector has failed tocomplete, by the date specified in thepermit or rule, an element of thecompliance schedule involving planningfor construction (e.g., award of contract,preliminary plans, ets.) or a constructionstep (e.g., begin construction, attainoperation level); and

(ii) The injector has not returned tocompliance within 30 days from the datea report is due under Part 146.

(2) Failure to Complete/ProvideCompliance Schedule Reports.Noncompliance shall be reported In thefollowing circumstances:

(I) When an injector has failed tocomplete or provide a report required Inthe compliance schedule (e.g., progressreports, notification or compliance/noncompliance etc.); and

(ii) The injector has not submitted acomplete report within 30 days froln thedate the report is due.

(3) Noncompliance with OperationalRequirements. Noncompliance shall bereported in the following circumstances;

(i] When a permittee or an injectorauthorized by rule has violated anoperational requirement and has notreturned to compliance with applicablerequirements within 45 days from thedate notification of noncomplianceunder Part 146 was due; or

(II) When the Director determines thata pattern of noncompliance withapplicable operational requirementsexists for any injector over a period of12 months prior to the end of the currentreporting period. This includes but is notlimited to:

(A) Any violation of the samerequirement in two consecutivequarters; and

(B) Any violation of one or more- requirements in each of the four quarters

comprising the 12-month period,(4) Failure to Report Data. The State

shall include in its report instances

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where reports are received or thereports provided by the injector are sodeficient as to cause misunderstandingon the part of the Director and impedethe review of the status of compliance.

[Comment Noncompliance reported underthis paragraph shall be reported in successivereports until the noncompliance is resolved.This resolution of noncompliance shall alsobe reported. Once the noncompliance isreported as resolved, it need not appear insubsequent reports.]

(d) Where the State is the permit-issuing authority, the State Directorshall submit any reports required underthis section to the RegionalAdministrator. Where EPA is the permit-issuing authority, the RegionalAdministrator shall submit any reportsrequired under this section to EPAHeadquarters.

§ 122.44 Special Requirements for wellsmanaging hazardous wastes.

(a) The owner or operator of any wellthat is used to inject hazardous wastesaccompanied by a manifest or deliverydocument shall obtain authorization toinject as specified in §§ 122.35 and122.36.

(b) In addition to the applicablerequirements of this Part and Part 146Subparts B-F, the Director shall, for eachfacility meeting the requirements ofparagraph (a), require that the owner oroperator comply with:

(1) The notification requirements ofPart 250, Subpart G (proposed at 43 FR29911 (July 11, 1978)]; and

(2) The manifest system record-keeping, and reporting requirement of§ 250.43-5(a), (b)(6), (c)(5)(i), (c)(5)(ii),(c)(5](iii], (c)(5(fiii)(A)-{F) and(c)(5)(iii](H), and (c)(6) (proposed at 43 -FR 59003 (December 18, 1978)).

[Comment Wells which inject hazardouswastes qualify as hazardous wastemanagement facilities under the ResourceConservation and Recovery Act ("RCRA"]. 42U.S.C. 6901 et. seq. This section is designed tointegrate regulatory coverage of these wellsunder RCRA and SDWA to avoid imposinginconsistent requirements.]

§ 122.45 Elimination of all class IV wells.(a) Existing class IV wells. Existing

class IV wells shall be inventoried andclosed by the Director as described in§ § 146.42 and 146.43.

(b) New class IV wells. The Directorshall by rule prohibit all new class IVwells immediately upon the effectivedate of the UIC program.

§ 122.46 Inventory of class V wells.(a) The Director shall by rule require

the owner/operator of any class V well

to submit the information required in§ 146.52.

(b) The Director shall, within twoyears of the effective date of the Stateprogram:

(1) Conduct an assessment of thecontamination potential of class Vwells;

(2) Conduct an assessment of theavailable corrective alternatives whereappropriate and their environmental andeconomic consequences; and

(3) Submit a report to EPA containingitems (1) and (2) as well asrecommendations for appropriateregulatory approaches and remedialactions.

Any underground injection for whichthe required information is notsubmitted will not be authorized byeither rule or permit and will thus besubject to appropriate enforcementaction.

[Comment. Based on the submittedinformation, States shall develop reports andrecommendations, which the Agency will useas a basis for promulgating minimum nationalrequirements to bring class V wells underregulatory control.

The assessment mandated for class V wellsrepresents solely the recognition thatinsufficient information is available to theAgency at this time. EPA has every intentionof continuing to seek the necessaryenvironmental amd economic data.]

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

§ 122.61 Purpose and scope.(a) This Subpart sets forth additional

requirements for the National PollutantDischarge Elimination System (NPDES)program including permit programsunder sections 402, 318 and 405 of theAct; it applies to the program asadministered by EPA and, to the extentincorporated by reference in Part 123, byapproved NPDES States.

(b) Section 402 of the Clean Water Act(CWA, formerly referred to as theFederal Water Pollution Control Act).(Pub. L. 92-500, as amended by Pub. L95-217 and Pub. L 95-576) establishesthe NPDES program. The NPDESprogram also includes permit programrequirements under sections 318 and 405of the Act. This program regulates thedischarge of pollutants from pointsources and related activities into thewaters of the United States. All suchdischarges or activities are unlawfulabsent an NPDES permit. After a permitis obtained, a discharge not incompliance with all permit terms andconditions is unlawful.

§ 122.62 Law authorzling NPDES permits. -(a) Section 301(a) of CWA provides

that "Except as in compliance with thissection and sections 302, 306, 307, 318,402. and 404 of this Act, the discharge ofany pollutant by any person shall beunlawful."

(b) Section 402(a)(1) of CIVA providesin part that "the Administrator may,after opportunity for public hearing.issue a permit for the discharge of anypollutant, or combination ofpollutants.... upon condition thatsuch discharge will meet either allapplicable requirements under sections301, 3023006, 307,308, and 403 of [the]Act, or prior to the taking of necessaryimplementing actions relating to all suchrequirements, such conditions as theAdministrator determines are necessaryto carry out the provisions of [the] Act."

(c] Section 318(a) of CWA providesthat 'Thb Administrator is authorized,after public hearings, to permit thedischarge of a specific pollutant orpollutants under controlled conditionsassociated with an approvedaquaculture project under Federal orState supervision pursuant to section402 of this Act."

(d) Section 405 of CVA provides, inpart. that "where the disposal of sewagesludge resulting from the operation of atreatment works as defined in section212 of this Act (including the removal ofin-place sewage sludge from onelocation and its deposit at anotherlocation) would result in any pollutantfrom such sludge entering the navigablewaters, such disposal is prohibitedexcept in accordance with a permitissued by the Administrator undersection 402 of this Act."

(e) Sections 402(b), 318(b) and (c), and405(c) of CWA authorize EPA approvalof State permit programs for dischargesfrom point sources, discharges toaquaculture projects, and disposal ofsewage sludge.

(I) Section 404 authorizes EPAapproval of State permit programs forthe discharge of dredged or fill material.

(g) Section 304(i) of CWA providesthat the Administrator shall promulgateguidelines establishing uniformapplication forms and other minimumrequirements for the acquisitions ofinformation from dischargers inapproved States and establishingminimum procedural and other elementsof approved State NPDES program.

(h) Section 501(a) of CWA providesthat "The Administrator is authorized toprescribe such regulations as arenecessary to carry out his functionsunder this Act."

(i) Section 101(e) of the Act providesthat "Public participation in the

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development, revision, and enforcementof any regulation, standard, effluentlimitation, plan or program establishedby the Administrator or any State underthis Act shall be provided for,encouraged, and assisted by theAdministrator and the States. TheAdministrator, in cooperation-with theStates, shall develop and publishregulations specifying minimumguidelines for public participation insuch processes."

§ 122.63 Exclusions.(a] The following discharges do not

require an NPDES permit-(1) Any discharge of sewage from

,vessels, effluent from properlyfunctioning marine engines, laundry,shower, and galley sink wastes, or anyother discharge incidental to the normaloperation of a vessel. This exclusiondoes not apply to rubbish, trash,garbage, or other such materialsdischarged overboard; nor to otherdischarges when the vessel is operatingin a capacity other than as a means oftransportation such as when a vessel isbeing used as an energy or miningfacility, a storage facility, or a seafoodprocessing facility, or is secured tostorage facility, or a seafood processingfacility, or is secured to the bed of theocean, contiguous zone, or waters of theUnited States for the purpose of mineralor oil exploration or development;

(2) Discharges of dredged or fillmaterial into waters of the United Statesand regulated under section 404 ofCWA.

(3) The introduction of sewage,industrial wastes or other pollutants intopublicly owned treatment works byindirect dischargers.

[Comment. This exclusion applies only to theintroduction of pollutants into publiclyowned treatment works. Plans oragreements to switch to this method ofdisposal in the future do not Felievedischargers of the obligation to apply forand receive permits until all discharges ofpollutants to waters of the United Statesare eliminated. All applicable pretreatmentstandards promulgated under section.307(b) of CWA must also be complied with,and may be included in the'permit to thepublicly owned treatment works.

This exclusion does not apply to theintroduction of pollutants io privately ownedtreatment works or-to other dischargesthrough pipes, sewers-of other conveyancesowned by a State, municipality or other partynot leading to treatment works. (See§ 122.3(d)).]

(4) Any introduction of pollutantsfrom agricultural and silviculturalactivities, including runoff fromorchards, cultivated crops, pastures,

range lands, and forest lands, except,that this exclusion shiall not apply to:

(i).Discharges from concentratedanimal feeding operations as defined in§ 122.76;

(ii) Discharges from concentratedaquatic animal production facilities asdefined in § 122.77;

(iii) Discharges to-aquaculture projectsas defined in § 122.78; and

(iv) Discharges from silvicultural pointsources as defined in § 122.80.

(b) The exemption of a discharge fromNPDES requirements in paragraph (a] ofthis section does not preclude Stateregulation of the exempted dischargeunder State'authority, in accordancewith section 510 of the CWA..

§ 122.64 Application for a permit.(a) Any person who dischargbs or

proposes to discharge pollutants, exceptpersons covered by general permitsunder § 122.82 or excluded under§ 122.63, shall complete, sign, andsubmit an application-(which includes aBMP program if necessary under§ 125.102) to the Director in accordancewith Part 124.

(b) Persons currently discharging whohave:

(1) Existing permits shall submit anew application under paragraph (c) ofthis section where facility expansions,production increases, or processmodifications will:

(i) Results in new or substantiallyincreased discharges of pollutants or achange in the nature of the discharge ofpollutants, or

(ii) Violate the terms and conditions ofthe existing permit. "

(2) Have expiring permits shall submitnew applications at least 180 daysbefore the expiration date of the existingpermit, uWess permission for a laterdate has been granted by the Director.I (c) A person proposing a newdischarge shall submit an application atleast 180 days before the date on whichthe discharge is to commence, unlesspermission for a later date has beengranted by the regional Administrator.

[Comment. Persons proposing a newdischarge are encouraged to submit theirapplications well in advance of the 180 dayrequirement to avoid delay.]

(d) Specialprovisionsfoeapplicationsfrom new sources. (1) The owiier oroperator of any facility which may be anew source as defined in § 122.3(d) andwhich is located in a State without anapproved NPDES program must complywith the provisions of this paragraph.

(2)(i] Before.beginning any on-siteconstruction as defined in: § 122.81, theowner or operator of any facility which

may be a new source must submitinformation to the RegionalAdministrator so that he or she candetermine if the facility is a new source.The Regional Administrator may requestany additional information needed todetermine whether the facility Is a nowsource.

(ii) The Regional Administrator shallmake an initial determination whetherthe facility is a new source within 30days of redeiving all necessaryinformation under subparagraph (2)(1) ofthis paragraph.

(3) The Regional Administrator shallissue a public notice in accordance With§ 124.11 of the new source determinationunder subparagraph (2)(1) of thisparagraph. The notice shall state thatthe applicant, if determined to be a newsource must comply with theenvironmental review requirements of40 CFR Part 6.900 et seq,

(4) Any interested person maychallenge the Regional Administrator'sinitial new source determination byrequesting an evidentlary hearing underSubpart E of Part 124 within 30 days ofissuance of the public notice of theinitial determination. The RegionalAdministrator may defer the evidentlaryhearing on the determination until aftera final permit decision is made, andconsolidate the hearing on thedetermination with any hearing on the-permit.

(e) Applications for variances fromand modifications of effluent limitationsbynon-POYWs. A discharger which isnot a publicly owned treatment worksmay request a variance from ormodification of otherwise applicableeffluent limitations under any of thefollowing statutory or regulatoryprovisions within the times specified Inthis paragraph:

(1) A request for a variance based onthe presence of "fundamentally differentfactors" from those on which theeffluent limitations guideline was based,shall be made by the close of the publiccomment period under § 124.12. Therequest shall explain how therequirements of § 124.15 and 40 CFRPart 125, Subpart D have been met.

(2YA request for a variance from theBAT requirements for CWA section301(b)(2)(F) pollutants (commonly called"onon-conventional" pollutants) pursuantto section 301(c) of CWA because of theeconomic capability of the owner oroperator;, or pursuant to section 301(g) ofCWA because of certain environmentalconsiderations, where thoserequirements were based on effluentlimitation guidelines, must be made by:

(i) Submitting an initial application tothe Regional Administrator and the

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State Director stating the name of theapplicant, the-permit number, the outfallnumber(s), the applicable effluentguideline, and whether the applicant isapplying for a section 301(c) or section301(g) modification or both. Thisapplication must have been filed notlater than:

(A) September 25, 1978, for a pollutantwhich is controlled by a BAT effluentlimitation guideline promulgated beforeDecember 27, 1977; or

(B) 270 days after promulgation of anapplicable effluent limitation guidelinefor guidelines promulgated afterDecember 27, 1977;

(ii) Submitting a completed requestdemonstrating that the requirements of§ 124.15 and the applicable requirementsof Part 125 have been met no later thanthe close of the public comment periodunder § 124.12.

(iii) Requests for variance of effluentlimitations based on other than effluentlimitation guidelines, shall comply onlywith paragraph (ii) and need not submitan initial application under paragraph(i).

(3) An extension under CWA section301(i)(2) of the statutory deadlines insections 30"(b)(1)[A) or (b)(1)[C) ofCWA based on delay in completion of apublicly owned treatment work intowhich the source is to discharge musthave been requested on or before June26,1978, or 180 days after the relevantpublicly owned treatment worksrequests an extension under paragraph(f)(2) of this section, whichever is later.The request shall explain how therequirements of 40 CFR Part 125,Subpart J have been met.

(4) An extension under CWA section301(k) from the statutory deadline ofsection 301(b)(2)(A) for best availablecontrol technology based on the use ofinnovative technology may be requestedno later than the close of the publiccomment period under § 124.12 for thedischarger's initial permit requiringcompliance with the best availabletechnology economically achievable.The request shall demonstrate that therequirements of § 124.15 and Part 125,Subpart C have been met.

(5) A modification under section302(b)(2) of requirements under section302(a) for achieving water qualityrelated effluent limitations may berequested no later than the close of thepublic comment period under § 124.12on the permit from which the variance issought. The request shall demonstratethat the requirements of that sectionhave been met.

(6) A variande under CWA section316(a) for the thermal component of anydischarge must be filed with a timely

application for a permit under thissection. If thermal effluent limitationsare established under CWA section402(a)(1) or are based on water qualitystandards the application shall be filedby the close of the public period under§ 124.12. A copy of the application asrequired under 40 CFR Part 125, SubpartH shall be sent simultaneously to theappropriate State or interstate certifyingagency. (See § 124.67 for specialprocedures for section 316(a) thermalvariances.)

(0) Applications for variances fromand modifications of effluent limitationsby POTW's. A discharger which is apublicly owned treatment works(POTW) may request a modification ofotherwise applicable effluent limitationsunder any of the following statutoryprovisions as specified in thisparagraph:

(1) A preliminary application for amodification under CWA section 301(h)from requirements of CWA section301(b)(1)(B) for discharges into marinewaters must have been submitted to theAgency no later than September 25.1978. A final application must besubmitted in accordance with the filing.requirements of 40 CFR Part 125,Subpart G, after that Subpart ispromulgated, and shall demonstrate onits face that all the requirements of 40CFR Part 125, Subpart G have been met.(See § 124.66 for special rules for CWAsection 301(h) modifications.)

(2) An extension under CWA section301(i)(1) from the statutory deadlines inCWA sections 301 (b)(1)(B) or (b)(1]C)based on delay in the construction ofPOTWs must have been requested on orbefore June 20, 1978.

(3) A modification under CWA section302(b)(2) of the requirements undersection 302(a) for achieving waterquality based effluent limitations maybe requested no later than the close ofthe public comment period under§ 124.12 on the permit from which themodification is sought.

(g)(1) Notwithstanding the timerequirements in paragraphs (e) and (f,the Director may notify the applicantbefore a draft permit is publishedpursuant to § 124.6 that the draft permitwill likely contain limitations which areeligible for variances or modifications.In such notice the Director may requirethe applicant as a condition ofconsideration of any potential variancerequest to submit an applicationexplaining how the requirements of 40CFR Part 125 applicable to the variancehave been met and to require itssubmission within a specifiedreasonable time before the draft permitis formulated. This notice can be sent

before the application under this sectionhas been submitted.

[Comment: This paragraph is intended toreduce the time for permit issuance,especially in those cases where it is clear thata CWA variance or modification will beapplied for.]

(2) A discharger who cannot file acomplete request required underparagraphs (e)(2](ii]. (e)(2)(iii), (e)(3)(Ior (e](3][iii) may request an extension toapply. Extensions shall be limited to thetime the Director determines isnecessary to satisfy the requirements ofthe appropriate regulations, but shall beno more than 6 months in duration. Therequest may be granted or denied in thediscretion of the Director.

§ 122.65 Effect of an NPDES permitCompliance with a permit during its

term constitutes compliance, forpurposes of sections 309 and 505, withapplicable standards and limitations ofCWA. except for any standard imposedunder section 307 for a toxic pollutantinjurious to human health. However, apermit may be modified revoked andreissued, or terminated during its termfor cause as described in §§ 122.9 and122.73.

§ 122.66 Duration of permits.No NPDES permit issued to a

discharger within an industrial categorylisted in Appendix A of this Part, priorto the applicable permit expiration datelisted in Appendix A. may be issued toexpire after that date, unless:

(a) The permit incorporates effluentlimitations and standards applicable tothe discharger which are promulgated orapproved under sections 301(b)(2) (C]and (D), 304(b)(2), and 307(a)(2) of CIVA;or

[Commenk EPA is presently reviewing andrevising effluent limitations for industrieslisted in Appendix A. In some cases, EPAmay approve existing effluent limitations orchoose not to develop new limitations. If EPAdecides not to develop new effluentlimitations it will publish notice in theFederal Register that the limitations are"approved" for the purpose of thisregulation.]

(b) The permit incorporates:(1) The "reopener clause" required by

§ 122.69[b)(1):(2) Effluent limitations to meet the

requirements of sections 301(b)(2] (A),(C). (D). (E] and (F] of CWA.

[Comments: (1) NPDES States are urged toIssue short term permits expiring on or beforethe dates listed in Appendix A. This willensure that all appropriate provisions ofCWA. including compliance with the effluentlimitations by the statutory deadlines, aremet in permits Issued after the promulgation

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of effluent guidelines under sections 301(b)(2)(C) and (D), 304(b)(2) and 307(a)(2). Even ifStates issue long term permits with laterexpiration dates (in accordance withparagraph (b)(2), dischargers are legallyrequired to meet all applicable statutorydeadlines and requirements, includingcompliance with any promulgated EPAeffluent guidelines defining "bestconventional pollutant control technology"(ECT) and "best available control technologyeconomically achievable" (BAT).

(2) A determination that a particulardischarger falls within a given industrial -category for purposes of setting a permitexpiration date under paragraph (b) is notconclusive as to the discharger's inclusion inthat industrial category for any otherpurposes, and does not prejudice any rightsto challenge or change that inclusion at thetime that a new permit based on thatdetermination is formulated.]

§ 122.67 Prohibitions.No NPDES permit shall be issued in

the following circumstances:(a) Where the terms or conditions of

the permit do not comply with theapplicable guidelines requirements ofCWA, or regulations.

(b) Where the applicant is required toobtain a State or other appropriatecertification under section 401 of CWAand § 124.53 and that certification-has-not been obtained or waived. '

(c) By the State Director where theRegional Administrator has objected toIssuance of the permit under § 123.99.

(d) Where the imposition of conditionscannot ensure compliance with theapplicable water quality requirements ofall affected States as required by section401(a)(2) of CWA.

(e) Where, in the judgment of theSecretary, anchorage and navigation inor on any of the waters of the UnitedStates would be substantially-impairedby the discharge.

(f) For the discharge of anyradiological, chemical, or biologicalwarfare agent or high-level radioactiveWaste.

(g) For any discharge from a pointsource inconsistent with a plan or planamendment approved under section208(b) of CWA.

(h) For any discharge to the territorialsea, the waters of the contiguous zone,or the oceans n the followingcircumstances:

(1) Prior to the promulgation of theguidelines under section*403(c) of CWA,unless the Director determines permitissuance to be in the public interest; or

(2) After promulgation of guidelinesunder section 403(c) of CWA. whereinsufficient information exists to make areasonable judgment as to whether thedischarge complies with any suchguidelines.

(i) To a facility which is a new sourceor a new discharger, if the dischargefrom-the construction or operation of thefacility will;

(A) Cause or contribute to theviolation of water quality standards ifthe point of discharge is located in asegment that was an effluent limitationsegment (as defined in 4G CFR§ *130.2(o](2)) prior to the introduction ofthe discharge from the new source ornew discharger, or

(B) Exceed the total pollutant loadallocation if the. discharge is into awater quality segment as defined in 40CFR § 130.2(o](1).

The owner or operator of a facilitywhich is a new source or new dischargerinto a water quality segment must alsodemonstrate, at the timeof applying fora permit that there are'sufficientremaining pollutant load allocations toallow the discharge and that the facilityis entitled to these allocations.

§ 122.68 Additional conditions applicableto NPDES permits.

The following conditions, in additionto those set forth in § 122.11, areapplicable to all NPDES permits. Theyshall be either expressly incorporatedinto the permit or incorporated byreference.

(a) [Reserved][Comment. This paragraph is reserviced

pending publication of a revised NPDESapplication form. This form, andaccompanying regulations, are beingproposed in today's Federal Register, as aseparate part of the Permit Consolidationpackage. When finally promulgated, theregulations appearing with the revisedNPDES form will be incorporated into thetext of this section. The existing NPDESapplication forms should be utilized until therevised application form is available, exceptas otherwise provided in these regulations.See § 122.5.]

(b) If any applicable toxic effluentstandard or prohibition (including anyschedule of compliance specified in sucheffluent standard or prohibition) isestablished under section 307(a) ofCWA for a toxic pollutant and thatstandard or prohibition is more stringentthan any limitation upon such pollutantin the permit, the Director shall instituteproceedings-under these regulations tomodify or revoke and reissue the permitto conform to the toxic effluent standardor prohibition.

[Comment. Effluent standards orprohibitions esablished under CWA section307(a) for toxic pollutants injurious to humanhealth are effective within the time providedin the implementing regulations, even absentpermit modification.]

Cc) Bypass. (1) Definitions.

(i) "Bypass" means the Intentionaldiversion of wastes from any portion ofa treatment facility.

(i) "Severe property damage" moanssubstantial damage to property damageto the treatment facilities which wouldcause them to become inoperable orsubstantial and permanent loss ofnatural resources which can reasonablybe expected to occur in the absence of abypass. severe property damage doesnot mean economic loss caused bydelays in production.

(2) Conditions necessary for bypass.Bypass is prohibited unless thefollowing three conditions are met:(I) Bypass is unavoidable to prevent

loss of life, personal injury or severeproperty damage;

(ii) There are no feasible alternativesto bypass, such as the use of auxiliarytreatment facilities, retention ofuntreated wastes, or maintenanceduring normal periods of equipmentdown-time;

(iii) The permittee submits notice ofan unanticipated bypass to the Directorwithin 24 hours of becoming aware ofthe bypass (if this information isprovided orally, a written submissionmust be provided within five days).Where the permittee knows or shouldhave known in advance of the need for abypass, this prior notification shall besubmitted for approval to the Director, ifpossible, at least ten days before thedate of the bypass.

[Comment. Fully efficient operation oftreatment systems is required at all times,Althougli this generally requires the use of allportions of an existing treatment system, insome cases, maintenance necessary to ensureefficient operation may require bypassingportions of a system. Where such a bypasswill not cause applicable effluent limitationsor standards to be exceeded, It may bo donewithout notification of the permittingauthority. Where, however, a bypass Isundertaken for reasons other than essentialmaintenance or where a bypass would causeeffluent limitations or standards to beexceeded, it may be undertaken only Inaccordaince with the provisions of thissection.]

(3) Prohibition of bypass. The Directormay prohibit bypass in consideration ofthe adverse effect of the bypass and theconditions set forth in paragraph (c)(2)of this section should have beenprovided by the treatment facility thebypass will not be allowed. If there Isany doubt as to the necessity of thebypass or the availability of methods toreduce or eliminate the discharge,appropriate enforcement action may betaken.

(d) Upset. (1) Definition. "Upset"means an exceptional incident in whichthere is unintentional and temporary

I I

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noncompliance with technology-basedpermit effluent limitations because offactors beyond the reasonable control ofthe permittee. An upset does not includenoncompliance to the extent caused byoperational error, improperly designedtreatment facilities, inadequatetreatment facilities, lack of preventivemaintenance, or careless or improperoperation. 1

(2) Effect of an upset An upset shallconstitute an affirmative defense to anaction brought for noncompliance withsuch technology-based permit effluentlimitations if the requirements ofparagarph (d)(3) are met.

(3) Conditions necessary for ademonstration of upset A permitteewho wishes to establish the affinnativedefense of upset shall demonstrate,through properly signed,contemporaneous operating logs, orother relevant evidence that:

(i) An upset occurred and that thepermittee can identify the specificcause(s) of the upset;

(ii) The permitted facility was at thetime being operated in a prudent andworkman-like manner and in.compliance with applicable operationand maintenance -procedures;

(1ii) The permittee submittedinformation within 24 hours of becomingaware of the upset (if this information isprovided orally, a written submissionmust be provided within five days); and

(iv] The permittee complied with anyrpmedial measures required under§ 122.11(i).

(4) Burden ofproof. In anyenforcement proceeding the permitteeseeking to establish the occurrence of anupset shall have the burden ofproof. -

[Comment- Although in the usual exerciseof prosecutorial discretion. Agencyenforcement personnel should review anyclaims that noncompliance was caused by anupset no determinations made in the courseof the review constitute final Agency actionsubject to judicial review. Permittees willhave the opportunity for a judicialdetermination on any alaim of upset only inan enforcement action brought fornoncompliance with technology-based-permiteffluent limitations.]

(e) The permittee, in order to maintaincompliance with its permit, shall controlproduction and all discharges uponreduction, loss, or failure of thetreatment facility until the facility isrestored or an alternative method oftreatment is provided. This requirementapplies in the situation where, amongother things, the primary source ofpower of the treatment facility isreduced, lost or fails.

§122.69 Applicable 1lmitations, standards,prohlb~lons, and condltlocm.

Each NPDES permit shall provide fotand ensure compliance with allapplicable requirements of CWA andregulations promulgated under CWA.For the purposes of this section, anapplicable requirement is a statutory orregulatory requirement which takeseffect prior to final administrativedisposition of a permit Issued by a Statewith an approved NPDES program, or, inthe case of a permit issued by EPA,which takes effect prior to the Issuanceof the permit except as provided In§ 124.86(c). Permits shall ensurecompliance with the following asapplicable:

(a) Effluent limitations and standardsunder sections 301, 302, 303, 304, 307,318and 405 of CWA. including any interimfinal limitations and standards.

(b) For a discharger within anyindustrial category listed in Appendix Arequirements under section 307(a)(2) ofCWA. as follows:

(1] Prior to the applicable permitexpiration date listed in Appendix A

(i) If applicable standards orlimitations have not yet been issued-(A) The permit shall Include

conditions stating that, if an applicablestandard or limitation is issued orapproved under sections 301(b)(2) (C)and (D), 304(b)(2) and 307(a)(2) and sucheffluent standard or limitation is morestringent than any effluent limitation inthe permit or controls a pollutant notlimitedin the permit, the permit shallbepromptly modified or, alternatively,revoked and reissued in accordancewith such effluent standard or limitationand any other requirements of CWAthen applicable.

[Commen. The following language Is anacceptable permit condition for the purposesof this section:

"This permit shall be modified, oralternatively, revoked and reissued, tocomply with any applicable standard orlimitation promulgated or approved undersections 301(b)(2) (C) and (D). 304(b](2). and307(a)(2) of the Clean Water Act, If theeffluent standard or limitation so Issued orapproved.0) Contains different conditions or Is

-otherwise more stringent than any effluentlimitation in the permt or

(ii) Controls any pollutant not limited In thepermit.

The permit as modified or reissued underthis paragraph shall also contain any otherrequirements of the Clean WaterAct thenapplicable."]

(B) The Director shall promptlymodify, or alternatively revoke andreissue, the permit to incorporate anapplicable effluent standard orlimitation under sections 301(b)(2) (C)

and (D), 304(b)[2), and 307(a](2) is issuedor approved if such effluent standard orlimitation is more stringent than anyeffluent limitation in the permit orcontrols a pollutant not limited in thepermit.

[Comment., The requirements of this sectionare Intended to assure compliance with the2984 statutory deadline for the achievementof best available technology economicallyachievable for poe.utants now listed undersection 307(a)[1) of CWA. WThen a permit ismodified orxrcvoked and reissued pursuant tosubparagraph (BJ. additional limitations maybe included In the permit to assureachievement of epplicable statutoryrequirements (e.g.. best conventionalpollutant control technology for"conventionar' pollutants and best availabletechnology economically achievable for ~'non-conventonar" poa!utants) by appropriatestatutory deadlines.]

(I!) If applicable standards orlimitations have been issued, the permitshall include those standards orlimitations.

(2) Any permit issued after theapplicable permit expiration date listedin Appendix A. the permit shall includeeffluent limitations and a complianceschedule to meet the requirements ofsections 301(b)(2)(A), (C), (D), (E) and (F]of CWA. whether or not applicableeffluent limitations guidelines have beenpromulgated or approved. Such permitsneed not incorporate the clauserequiredby subparagraph (A) of this paragraph.

(c) Standards of performance for newsources under sedtion 306 of CWA,including any promulgated interim finaleffluent limitations and standards.

(d) If the permit is for ar dischargefrom a publicly owned treatment works,a condition requiring the permittee to:

(1) Provide adequate notice to theDirector of the following:

(i) Any new introduction of pollutantsinto that POTW from an indirectdischarger which would be subject tosections 301 or 306 of CWA ifit weredirectly discharging those pollutants;and

(ii) Any substantial change In thevolume or character of pollutants beingintroduced into that POTW by a sourceintroducing pollutants into the POTW atthe time of issuance of the permit.

[CommenL"For purposes of this paragraph,adequate notice shall include information on(1) the quality and quantity of effluent to beIntroduced Into such POTW, and (2) anyanticipated impact of such change in thequantity or quality of effluent to bedischarged from such POTW.]

(2) Identify, in terms of character andvolume of pollutants, any significantindirect dischargers into the POTWsubject to pretreatment standards under

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section.307(b) of CWA and 40 CFR Part403.

(3) Establish a local program whenrequired by and in accordance with 40CFR Part 403 to assure compliance withpretreatment standards to the extentapplicable under section 307(b). Thelocal program shall be incorporated intothe permit as described in 40 CFR Part403.1 (4) Require any indirect discharger tosuch POTW to comply with thereporting requirements of sections204(b), 307, and 308 of CWA, includingany requirements established under 40CFR Part 403.

(e) Any conditions imposed in grantsmade by the Administrator to POTWsunder sections 201 and 204 of CWAwhich are reasonably necessary for theachievement of effluent limitationsunder sectidn 301 of CWA.

[Comment, Among other things, thisparagraph contemplates permit conditionsembodying measures to protect the POTWagainst overloading and schedules ofcompliance which are consistent with, anddetermined from, construction grant awarddates.]

(fJ Any requirements in addition to ormore stringent than promulgatedeffluent limitations guidelines orstandards under sections 301, 304, 306,307, 318 and 405 where necessary to:

(1) Achieve water quality standardsestablished under section 303 of CWA;

(2) Attain or maintain a specifiedwater quality through water qualityrelated effluent limits established undersection 302 of CWA;

(3) Conform to the conditions of aState certification under section 401 ofCWA where EPA-is the permit issuingauthority;

(4) Conform.to applicable waterquality requirements under section402(a)(2) of CWA when the dischargeaffects a State other than the certifyingState;

(5) Incorporate any-more stringentlimitations, treatment standards orschedules of compliance requirements"established under Federal or State laworregulations in accordance withsection 301 (b)(1](C) of CWA;

(6) Ensure consistency with therequirements of a Water Qualitymanagement plan approvedhby EPAunder section 208(b) of CWA;

(7) Incorporate section 403(c) criteriaunder part 125, SubparfM for oceandischarges;

(8) Incorporate alternative effluentlimitations or standards wherewarranted by "fundamentally differentfactors," under 40 CFR Part 125 SubpartD;

(9) Incorporate other requirements, orconditions, or limitations into a newsource permit under the NationalEnvironmental Policy Act, 42 U.S.C. 4321et seq. and section 511 of CWA, whereEPA is the permit issuing authority.

(10) Establish on a case-by-case basistechnology-based limitations controllinga pollutant not included in promulgatedeffluent limitations guidelines orstandards in accordance with 40 CFR125.2.

[Comment, Subparagraph (10] applies to alldischargers including new sources and newdischargers, even where covered by theprotection period in § 122.81.]

[g) Best management practices tocontrol or abate the discharge ofpollutants where:

(1) Authorized under section 304(e) ofthe CWA for the control of toxic andhazardous pollutants from ancillaryindustrial activities;

(2) Numeric effluent limitations areinfeasible, or

(3) The practices are reasonablynecessary to achieve effluent-limitationaand standards or to carry out thepurposes and intents of CWA.

[Comment Examples of best managementpractices which may be imposed undersubparagraph (g)(2) iniilude: (a) properoperator qualifications of treatment facilitypersonnel (see Decision of the GeneralCounsel No. 19), and (b) sludge-handlingrequirements (see Decision of GeneralCounsel No. 33).Examples of bestmanagement practices which may beimposed under subparagraph (g)(3) include:(a) coal mining operation's diversion df waterfrom an active coal mining area to preventcontact between water and iron pyriteswhich could react to form sulfuric acid andwastewaters with low pH values; (b) theconstruction of sheds over material storagepiles to prevent rainfall from leachingmaterials from these piles and creating asource of pollution; (c) ditching and diversionof rainfall runoff for treatment prior todischarge; and (d) the use of solid, absorbentmaterials for cleaning up leaks and drips asopposed to washing these materials down afloor drain creating additional sources ofpollution. Although these best managementpractices under subsections (2] and (3) wouldbe required under the authority ofNRDC v.Castle, (Runoff Point Sources) 568 F.2d 1369(D.C. Cir. 1977) they-are similar to those insubparagraph (g)[1) and Subpart K of 40 CFRPart 125 imposed for toxic and hazardousmaterials under section 304(e).]

. (h) Requirements under section 405 ofCWA governing the disposal of sewagesludge from publicly owned treatmentworks, in accordance with anyapplicable regulations.

(i) Where a permit is renewed orreissued, interim limitations, standardsor conditions which are at least asstringent as the final limitations,

standards or conditions in the previouspermit (unless the circumstances onwhich the previous permit was basedhave materially and substantiallychanged since the time the permit wasissued and would constitute cause forpermit modification or revocation andreissuance under § § 122.9 or 122.73.)

Where effluent limitations wereimposed under section 402(a)(1) of CWAin a previously issued permit and theselimitations are more stringent than thesubsequently promulgated effluentguidelines, this paragraph shall applyunless:

(1) The-discharger has installed thetreatment facilities required to meet theeffluent limitations in the previouspermit and has properly operated andmaintained the facilities but hasnevertheless been unable to achieve theprevious effluent limitations. In this casethe limitations in the reissued permitmay reflect the level of pollutant controlactually achieved (but shall not be lossstringent than required by thesubsequently promulgated effluentguidelines);

(2) In the case of an approved State,State law prohibits permit conditionsmore stringent than an applicableeffluent guideline; or

(3) The subsequently promulgatedeffluent guidelines are based on bastdonventional pollutant controltechnology (section 301(b)(2)(E) ofCWA).

0) In the case of a permit issued to afacility that may operate at certain tiresas a means of transportation over water,,a general condition that the dischargeshall comply with any applicableregulations promulgated by theSecretary of the Department in whichthe Coast Guard is operating,establishing specifications for safetransportation, handling, carriage, andstorage of pollutants.(k) Any conditions that the Secretary

of the Army considers necessary toensure that navigation and anchoragewill not be substantially impaired.

§ 122.70 Calculation and specification ofeffluent limitations and standards.

(a)(1) All NPDES permits shall imposefinal, and where necessary, interimeffluent limitations, standards andprohibitions under §§ 122.11,122.08 and122.69 for each outfall or discharge pointf the permitted facility, except asotherwise provided under § 122.09(g)(2)and paragraph (i) of this section.

(2) Except in the case of POTWs,permit limitations, standards orprohibitions shall be calculated basedon the'actual production and not thedesigned production capacity of the

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Federal Register I VoL 44, No. 116 / Thursday, June 14, 1979 / Proposed Rules

facility where the promulgated effluentguideline limitations and standards arebased on production.

[Comment: Where design capacity is notrepresentative of actual production, permitlimitations will be calculated to reflect areasonable measure of actual production.such as the high month during the previousyear, or the monthly average for the highestyear of the previous five years, for facilitieswhere such data is available. For newsources, or new discharges, actual productiongenerally will be projected production basedon market data, and permit limitations mayrequire modification once actual productionfigures are available.l

(3) In the case of POTWs, permitlimitations, standards or prohibitionsshall be calculated based on designflow.

(b) All interim and final permiteffluent limitations, standards orprohibitions established under§§ 122.11,122.68 and 122.69 for a metalshall be expressed in terms of the totalmetal (i.e., the sum of the dissolved andsuspended fractions of the metal) unless:

(1) The promulgated effluentlimitation and standard under CWAspecifies the limitation for the metal inthe dissolved or valent form: or

(2] In establishing permit limitationson a case-by-case basis under§ 122.69(1), it is necessary to express thelimitation on the metal in the dissolvedor valent form in order to carry out theprovisions of CWA.

(c) For continuous discharges allinterim and final permit effluentlimitations, standards and prohibitionsestablished under § 122.11. § 122.68 and§ 122.69, including those necessary toachieve water quality standards, shallbe stated as:

(1) Maximum daily and averagemonthly discharge limitations for alldischargers other than publicly ownedtreatment works; and

(2) Average weekly and averagemonthly discharge limitations forPOTWs.

A "continuous discharge" means adischarge which occurs withoutinterruption, except for infrequent.shutdowns for jnaintenance, processchanges or other similar activitiesthroughout the operating hours of thefacility.

The "Maximum daily discharge" is thetotal mass of a pollutant dischargedduring the calendar day or, in the caseof a pollutant limited in terms other thanmass pursuant to paragraph (d), the

--average concentration or othermeasurement of the pollutant specifiedduring the calendar day or any 24-hourperiod that reasonably represents thecalendar day for the purposes of

sampling. The maximum daily dischargelimitation may not be violated duringany calendar day.

The "average monthly dischargelimitation" is the total mass, andconcentration in the case of POTWs. ofall daily discharges sampled and/ormeasured during a calendar month onwhich daily discharges are sampled andmeasured. divided by the number ofdaily discharges sampled and/ormeasured during such month. Theaverage monthly discharge limitationmay not be violated during any calendarmonth.

The "average weekly dischargelimitation" is the total mass andconcentration of all daily POTWdischarges during any calendar week onwhich daily discharges are sampledand/or measured, divided by thenumber of daily discharges sampledand/or measured during such calendarweek. The average weekly dischargelimitation may not be violated duringany calendar week.

[Comment. Calculations for all suchlimitations which require averaging ofmeasurements or of daily discharges. shallutilize an arithmetic mean average, unlessotherwise specified or approved by theDirector.]

(d) Paragraph (c) is not applicable:(1) For pH, temperature, radiation or

other pollutants which cannot beappropriately expressed by mass: or

(2) Where applicable promulgatedeffluent guideline limitations, standardsor proffibitions are expressed in otherterms than mass, e.g., as concentrationlevels.-" (e) Except as provided in paragraph(g), effluent limitations imposed inpermits shall not be adjusted forp6llutants in the intake water.

(f)(1) Upon request of the discharger.effluent limitations or standardsimposed in a permit will be calculatedon a "net" basis, i.e., adjusted to reflectcredit for pollutants in the dischargersintake water, if the dischargerdemonstrates that its intake water isdrawn from the same body of water intowhich the discharge is made and if:

(i)(A) The applicable effluentlimitations and standards contained inSubchapter N of this Chapterspecifically provide that they shall beapplied on a net basis; or

(B] The discharger demonstrates thatpollutants present in the intake waterwill not be entirely removed by thetreatment systems operated by thedischarger, and

i) The permit contains conditionsrequiring the permittee to conductadditional monitoring (i.e., for flow and

concentration of pollutants) asnecessary to determined continuedeligibility for and compliance with anysuch adjustments.

The discharger shall notify theDirector if this monitoring indicates thateligibility for an adjustment under thissection has been altered or no longerexists. In such case, the permit shall bemodified or revoked and reissued under§§ 122.9 or 122.73.

(2] Permit effuent limitations orstandards adjusted under this paragraphshall be calculated on the basis of theamount of pollutants present anytreatment steps have been performed onthe intake water by or for thedischarger. Adjustments under thisparagraph shall be given only to theextent that polluntants in, the intakewater which are limited in the permitare not removed by the treatmenttechnology employed by the discharger.In addition, effluent limitations orstandards shall not be adjusted whenthe pollutants in the intake water veryphysically, chemically or biologicallyfrom the pollutants limited by thepermit. Nor shall effluent limitations orstandards by adjusted when thedischarger significantly increasesconcentrations of pollutants in theintake water, even though the totalamount of pollutants might remain thesame.

(h] Discharges which are notcontinuous, as defined in paragraph (c].shall be particularly described andlimited, considering the followingfactors, as appropriate:

(1) Frequency (e.g.. a batch dischargeshall not occur more than once every 3weeks):

(2) Total mass (e.g.. not to exceed 100kilograms of zinc and 200 kilograms ofchromium per batch discharge]:

(3) Maximum rate of discharge ofpollutants during the discharge (e.g.. notto exceed 2 kilograms of zinc perminute]; and

(4) Prohibition or limitation ofspecified pollutants by mass.concentration, or other appropriatemeasure (e.g., shall not contain at anytime more than 0.1 mg/l zinc or morethan 250 grams (II kilogram) of zinc inany discharge).

(i) Where permit effluent limitationsor standards imposed at the point ofdischarge are impractical or infeasible.effluent limitations or standards ofdischarges of pollutants may be imposedon internal waste streams prior tomixing with other streams or coolingwater streams. In such instances, themonitoring required by Subpart C shallalso be applied to the internal wastestreams.

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[Comment, Limits on internal wastestreams will only be imposed in exceptionalcircumstances, such as where the finaldischarge point is inaccessible (e.g., under 10meters of water), where the wastes at thepoint of discharge are so diluted as to makemonitoring impracticable, or where theinterferences among pollutants at the point ofdischarge would make detection and/oranalysis impracticable.]

§ 122.71 NPDES requirements forrecording and reporting of monitoringreports.

(a) To assure compliance with permitterms and conditions, all NPDESpermittees shall monitor as specified inthe permit:

(1) The amount, concentration or othermeasurement specified in § 122.70 foreach pollutant specified in the permit;

(2] The volume of effluent dischargedfrom each point source; and

(3) According to test procedures forthe analysis of pollutants meeting therequirements of paragraph (b];

(4) As otherwise specifically requiredin the permit, e.g., as required under§ 122.70(g)(2).

(b)(1) Test procedures identified in 40CFR Part 130 shall be utilized forpollutants or parameters listed in thatPart, unless and alternative testprocedure has been approved under thePart.

(2) Where no test procedure under 40CFR Part 136 has been approved, theDirector shall specifiy a test method inthe permit.

(3) Notwithstanding paragraph (1), theDirector may specify in a permit the testprocedure used in developing the dateon which an effluent limitationsguideline was based, or specified by thestandards and guidelines.

(4) Where a method approved under40 CFR Part 136 for any pollutant orparameter was used in developing theapplicable standards and limitations oris specified by the standards andlimitations, the-same method shall bespecified in the permit.

(c) The sampling frequency and othermonitoring requirements specified bythe director under paragraph (b) shall, tothe extent applicable, be consistent withmonitoring requirements specified in astandard or effluent guideline on whichthe effluent limitations in the permit arebased.

(d) If the permittee believes that themonitoring requirements specified bythe director under paragraph (b) in anydraft permit under § 124.31, are notsufficient-to yield data representative ofthe volume of effluent flow and thequantity of pollutants discharged, itshould request that additionalmonitoring requirements sufficient to

yield such data be included in the finalpermit. Compliance with effluentlimitations contained in the permit willbe dethrmined in accordance with themonitoring requirements specified in thepermit which, when finally effective, aredeemed to yield data representative ofthe volume of effluent flow and thequantity of pollutants discharged.

(e) The CWA provides that anyperson who falsifies, tampers with, orknowingly renders inaccurate anymonitoring device or method required to-be maintained under this section shall,upon conviction, be punished by a fineof not more than $10,000 per violation, orby imprisonment for not more than 6months per violation, or by both.

(f) The CWA provides that any personwho knowingly makes any falsestatement, representation, orcertification in any record or otherdocument required to be maintainedunder this section or § 122.14 shall, uponconviction, be punished by a fine of notmore than $10,000 per violation, or byimprisonment for not more than sixmonths per violation, or by both.

(g) If the permittee monitors anypollutant more frequently than requiredby the permit, using approved analyticalmethods, the results of this monitoringshall be reported and included in thecalculation and reporting of the datasubmitted in the DMR. For purposes ofthis paragraph, "approved analyticalmethods" are those test procedures forthe analysis of pollutants which conformto 40 CFR 136 or as specified in thepermit.

(h) The CWA provides that anyperson who knowingly makes any falsestatement, representation, orcertification in the monitoring report ornotice of compliance shall, upon_conviction, be punished by a fine of notmore than $10,000 per violation, or byimprisonment for not more than sixmonths per violation; or by both.

§ 122.72 NPDES noncompliance reportingrequirements:

(a) On the last working day ofFebruary, May, August, and November,the State director shall submit to theRegional Administrator informationconcerning noncompliance with NPDESpermit requirements by majordischargers in the State in accordancewith the reporting schedule contained inparagraph (g). The RegionalAdministrator shall submit suchinformation and shall also prepare andsubmit information for EPA-issuedpermits to EPA Headquarters inaccordance with paragraph (g).

(b) Quarterly Reports. The reportsrequired by paragraph (a) shall Includethe following information:

(1) Failure to complete constructionelements. Noncompliance shall bereported:

(i) When the permittee has failed tocomplete by the date specified In thepermit, an element of the complianceschedule (e.g., award of contract,preliminary plans (e.g., beginconstruction or attain operationallevel)); and

(ii) The permittee has not returned tocompliance by accomplishing therequirements of the permit within 30days from the date a report Is due under§ 122.12(a)(2).

{2) Failure to complete or providecompliance schedule reports.Noncompliance shall be reported in thefollowing circumstances:

(I) When the permittee falls tocomplete or provide a report required Inthe permit compliance schedule or under§ 122.14 (e.g., progress.reports ornotification of compliance ornoncompliance); and

(ii) The permittee has not returned tocompliance by submitting the reportwithin 30 day from the date It is dueunder § 122.12(a)(2).

(3) Noncompliance with applicablestandards and limitationg.Noncompliance shall be reported-

(i) When the permittee has violated anapplicable standard or limitation andhas not returned to compliance with theNPDES permit requirements within 45days from the date that the DMR ornotification of noncompliance under§ 122.11(h) was due;

(iii) When a pattern of noncompliancewith applicable standards or limitationsas determined by the Director exists forany major discharger over a period of 12months prior to the end of the currentreporting period. This pattern ofnoncompliance is based on violelon ofmonthly averages and dxcludesparameters where there is continuousmonitoring. A pattern of noncomplianceshall be reported whenever there Is:

(A) Any violation of the same permitor limitation or standard in twoconsecutive quarters; and

(B) Any violation of one or morepermit limitations or standards in eachof four consecutive quarters; or

(ill) When, as determined by theDirector, a significant discharge of apollutant occurs, such as a discharge ofa toxic or hazardous substance.

(4) Failure to report effluent data,Noncompliance shall be reported wherethe permittee has failed to provide aDMR within 30 days of the date it is duoor where the permittee has exceeded

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effluent limitations and has failed toreport this noncompliance.

(5) Deficient reports. Noncomplianceshall be reported where the requiredreports provided by the permittee are sodeficient as to cause misunderstandingby the permit issuing authority and thusimpede the review of the status ofcompliance.

(6) Modificafions to schedules ofcompliance uider § 126)2aff3).Noncompliance resulting from orconstituting the basis for a modificationunder § 122.12(a)(3) shall be reported.

[Comment. Noncompliance reported underthis paragraph shall be reported in successivereports until the noncompliance is resolved.The resolution of noncompliance shall bereported, and when the noncompliance isreported as resolved, it will not appear insubsequent reports.]

(c) The narrative information requiredunder paragraph (b) shall:

(1) Include the information requiredunder § 122.15(a);

(2) Provide separate lists for non-POTWs, POTWs and Federalperm.ttees;

(3) Combine information concerningschedule and effluent noncompliance ina single entry for each permittee; and

(4) Alphabetize all narrative listingsby permittee name. Where two or morepermittees have the same name, the

"- lowest permit number shall govern theorder of entry, i.e., the lowest numbershall be entered first.

(d) Statistical information shall bereported quarterly on all other instancesof noncompliance with permitrequirements by major dischargers notset forth in paragraph (b).

(e] Annualreports. For minordischargers whose compliance has beenreviewed by the permitting authority,statistical information on the types ofnoncompliance listed under paragraph(b) shall be reported annually. Inadditional, a separate list of minordischargers which are one or more yearsbehind in construction phases of thecompliance schedule shall be submittedannually in alphabetical order by nameand permit number.

(f) Reporting schedules. (1) Theschedule for reporting of noncomplianceby major dischargers under paragraphs(b), (c), and (d) shall be as follows:

Dates iorO-art-er co-red by mpoas on noncompa wner, of

-non by ae csc-ge. repo,F _ , May31".March_

Ape August31-.may

Ju Nomber 30.

October Febary 25°.

Repot me gbg to tM pqbf5 on U dtle.

(2) The annual reporting period fornoncompliance by minor dischargersunder paragraph (e) shall end at the endof the Federal fiscal year (currentlySeptember 30), with reports completedand available to the public no more than60 days later.

(g) All reports prepared under thissection shall be niade available to thepublic for inspection and copying.

[Commenk The distinction between 'najorand minor" dischargers is established InEPA's annual operating guidance for the EPARegional offices and the States.]

§ 122.73 Modifications or revocation andrelssuance of NPDES permits.

In addition to the causes set forth in§ 122.9(e), NPDES permit may bemodified, or revoked and reissued forthe following causes:

(a) Where.water quality standards orEPA promulgated effluent limitationsguidelines (including interim finaleffluent guidelines) are revised,withdrawn or modified, but only when:

(1) The permit term or conditionrequested to be modified or revokedwas based on a promulgated effluentlimitation guideline or a EPA approvedor promulgated water quality standard;

(2)(i) EPA has revised, withdrawn ormodified that portion of the effluentlimitation guideline on which the permitterm or condition was based; or

(ii) EPA has approved a State actionwith regard to a water quality standardon which the permit term or conditionwas based; and

(3) A request for modification orrevocation and reissuance is filed inaccordance with § 124.5 (or applicableState procedures meeting therequirements of § 124.5) within ninety(90) days after Federal Register noticeof:

(i) Revision. withdrawal ormodification of that portion of theeffluent limitation guideline; or

(ii) EPA approval of a State actionregarding a water quality standard.

(b) Judicial remand of EPApromulgated effluent limitationsguidelines, if the remand concerns thatportion of the guidelines on which thepermit term or condition was based andthe request is filed within 90 days of thejudicial remand;

(c) Where any modification orrevocation and reissuance of permits Isspecifically authorized by CWA, e.g.,sections 301(c), (g), (h). (I) or (k).

(d) As necessary under §§ 122.68(b),122.69(b) and 122.12(a)(3)(i) and (ii).

(e) Failure of an approved State tonotify another State whose waters maybe affected by the discharge from theapproved State, as required by section402(b)(3) of CWA.

(f) The following additional minorpermit modifications for NPDES permitsshall not require public notice andopportunity for hearing under § 124.5 or§ 124.7 unless they would render thepermit less stringent, or unless contestedby the permittee:

(1) A change in the constructionschedule for a discharger which is a newsource. No such change shall affect adischargers obligation to have allpollution control equipment installedand in operation prior to dischargeunder § 122.81; and

(2) Deletion of a point source outfall,where the discharge from that outfall isterminated and does not result indischarge of pollutants from other.outfalls except in accordance withpermit limits.

9122.74 Termn.atlon of NPDES permts.In addition to the causes for

termination set forth in § 122.0X NpDESpermits may be terminated where thereIs a change in any condition thatrequires either a temporary orapermanent reduction or elimination ofany discharge controlled by the permit(e.g., plant closure, termination ofdischarge by connection to a POTW, thepromulgation of any applicable effluentstandard or prohibition under section307 of the Act any change in State lawthat requires the reduction orelimination of the discharge, etc.

§ 122.75. Disposal of pollutants into weyt,,Into publcly owned treatment works or byland application&

(a) Where part of a discharger'sprocess waste water is not beingdischarged into waters of the UnitedStates or contfguous zone because it isdisposed into a well, into a POTW. or byland application thereby reducing theflow or level of pollutants beingdischarged Into waters of the UnitedStates, applicable effluent limitationsand standards for the discharge in anNPDES permit shall be adjusted toreflect the reduced raw waste resultingfrom such disposal. Effluent limitationsand standards in the permit shall becalculated by one of the followingmethods:

(1) If none of the waste from aparticular process is discharged intowaters of the United States, and effluentlimitations guidelines provide separateallocation for wastes from that process,all allocations for the process shall be

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34294 Federal Register Vol. 44, No. 116 / Thursday, June 14, 1979 / Proposed Rules

eliminated from calculation of permiteffluent limitations or standards;

(2) In all cases other than thosedescribed in paragraph (1), effluentlimitations shall be adjusted bymultiplying the effluent limitationderived by applying effluent limitationguidelines to the total waste stream bythe amount of wastewater flow to betreated and discharged into waters of"the United States, and dividing theresult by the total wastewater flow.Effluent limitations and standards socalculated may be further adjustedunder Part 125, Subpart D to make themmore stringent if discharges to wells,publicly owned treatment works, or byland application chinge the character ortreatability of the pollutants beigdischarged to receiving Waters.

[Comment. This method may bealgebraically expressed as:P=EXN/Twhere P is the permit effluent limitation, E isthe limitation derived by applying effluentguidelines to the total waste stream, N is thewastewater flow to be treated anddischarged to waters of the United States,and T is the total wastewater flow.]

(b) Paragraph (a) shall not applywhere promulgated effluent limitationsguidelines:

(1) Control concentrations ofpollutants discharged but not mass; or

(2) Specify a different specifictechnique for adjusting effluentlimitations to accomit for well injection.:

(c) Paragraph (a) does not alter adischarger's obligation to meet any morestringent requirements establishedunder § § 122,11,.122.68 and 122.69.

§ 122.76 Concentrated animal feedingoperations.

(a) Concentrated animal feedingoperations are point sources subject tothe NPDES permit program.

(b) Definitions. (1) "Animal feedingoperation" means a lot or facility (otherthan an aquatic animal prbductionfacility) where the following conditionsare met:

(I) Animals (other than aquaticanimals) have been, are, or will bestabled or confined and fed ormaintained for a total of 45 days or morein any 12:month period, and

(ii) Crops, vegetation, forage growth orpost-harvest residues are not sustainedin the normal growing season over anyportion of the lot or facility.

Two or more animal-feedingoperations under common ownershipare considered, for the purposes of theseregulations, to be a single animal -feeding operation if they adjoin eachother or if they use a common area orsystem for the disposal of wastes.

(2) "Concentrated animal feedingoperationI" means an animal feedingoperation which meets the criteria setforth in (b)(2) (i), (ii) or (iii) below:

(i) More than the numbers of animalsspecified in any of the followingcategories are confindd:

(A) 1,000 slaughter and feeder cdttle,(B) 700 mature dairy cattle (whether

,milked or dry cows),(C) 2,500 swine each weighing over 25

kilograms (approximately 55 pounds),(D) 500 horses,(E) 10,000 sheep or lambs,(F) 55,000 turkeys,(G) 100,000 laying hens or broilers (if

the facility has a continuous overflowwatering),

(") 30,000 laying henf or broilers (ifthe facility has a liquid manure system),(1) 5,000 ducks, or(J) 1,o00 animal units; or(ii) More than the following numbers

and types of animals are confined:(A) 300 slaughter or feeder cattle,(B) 200 mature dairy cattle (whether

milked or dry cows),(C) 750 swine each weighing over 25

kilograms (approximately 55 pounds),(D) 150 horses,(E) 3,000 sheep or lambs,(F) 16,500 turkeys,(G] 30,000 laying hens or broilers Cif

the facility has continuous overflowwatering),

(H) 9,000 laying hens or broilers (if thefacility has a liquid manure handlingsystem),

(I) 1,500 ducks, or(J) 300 animal units;

and either one ofthe followingconditions.are met: pollutants aredischarged into waters of the UnitedStates through a man-made ditch,flushing system or other similar man-made device; or pollutants aredischarged directly into navigablewaters which originate outside of andpass over, across, or through the facilityor otherwise come into direct contactwith tie animals cofmed in theoperation.

Provided; however, that no animalfeeding operation is a concentratedanimal feeding operation as definedabove if such animal feeding operationdischarges only in the event of a 25 year,24 hour storm event.

(ill) The Director determines that theoperation is a significant contributor of-pollution to waters of the United States,in accordance with paragraph (c).

(3) The term "animal unit" means a-unit of measurement for any animalfeeding operation calculated by addingthe following numbers: the number ofslaughter and feeder cattle multiplied by

1.0, plus the number of mature dairycattle multiplied by 1.4, plus the numberof swine weighing over 25 kilograms(approximately 55 pounds) multiplied by0.4, plus the number of sheep multipliedby 0.1, plus the number of horsesmultiplied by 2.0.

(4) The term "man-made" meansconstructed by man and used for thepurpose of transporting wastes.

(c) Case-by-case designation ofconcentrated animal feeding operations.(1) Notwithstanding any other provisionof this section, any animal feedingoperation may be designated as aconcentrated animal feeding operationwhere it is determined to be asignificant contributor of pollution to thewaters of the United States. In making'this designation the Director shall'consider the following factors:

(i) The size of the animal feedingoperation and the amount of wastesreaching waters of the United States:

(ii) The location of the animal feedingoperation relative to waters of theUnited States;

(Jil) The means of conveyance ofanimal wastes and process wastewaters into waters of the United States:

(iv) The slope, vegetation, rainfall, andother factors affecting the likelihood orfrequency of discharge of animal wastesand process waste waters into waters ofthe United States; and

(v) Other such factors relative to thesignificance of the pollution problemsought to be regulated.

(2) No animal feeding operation withless than the numbers of animals setforth in subparagraphs (b)(2) (I) and (ii)above shall be designated as aconcentrated animal feeding operationunless:

(i) Pollutants are discharged intowaters of the United States through aman-made ditch, flushing system orother similar man-made device; or

(ii) Pollutants are discharged directlyinto waters of the United States whichoriginate outside of the facility andpassover, across, through the facility orotherwise come into direct contact withthe animals confined in the operation.

(3) In no case shall a permitapplication be required from aconcentrated animal feeding operationdesignated under this paragraph untilthere has been an onsite Inspection ofthe operation and a determination thatthe operation should and could beregulated under the permit program.

§ 122.77 Concentrated aquatic animalproduction facilities.

(a) Concentrated aquatic animalproduction facilities, as defined in this




section, are point sources subject to theNPDES permit prbgram.

(b) Definitions. (1) "Concentrated -aquatic animal production facility"means a hatchery, fish farm, or otherfacility which contains, grows or holds:

(i) Cold water fish species or othercold water aquatic animals in ponds,raceways or other similar structureswhich discharge at least 30 days peryear but does not include:

(A) Facilities which produce less than9,090 harvest weight kilograms(approximately 20,000 pounds) ofaquatic animals per year; and

(B] Facilities which feed less than2,272 kilograms (approximately 5,000pounds) of food during the calendarmonth of maximum feeding.

ii) Warm water fish species or otherwarm water aquatic animals in ponds,raceways or other similar structureswhich discharge at least 30 days peryear, but does not include:

(A) Closed ponds which dischargeonly during periods of excess runoff, or

(B] Facilities which produce less than45,454 harvest weight-kilograms(approximately 100,000 pounds) ofaquatic animals per year.

(2) "Cold water aquatic animals"include, but are not limited to, theSalmonidae family of fish, e.g., trout andsalmon.

(3) "Warm water aquatic animals"include,.but are not limited to theAmeirde, Centrarchidae andCyprinidue families of fish, e.g.,respectively, catfish, sunfish andminnows.

(c) Case-by-case designation ofconcentrated aquatic animal productionfacilities. Any warm or cold wateraquatic animal production facility nototherwise falling within the definitionsprovided in paragraph (b) may bedesignated as a concentrated aquaticanimal production facility where thefacility is determined to be a significantcontributor of pollution to waters of theUnited States. In making thisdesignation the Director shall considerthe following factors:

(1) The location and quality of thereceiving waters of the United States;

(2) The holding, feeding andproduction capacities of the facility,.

(3) The quantity and nature of thepollutants reaching waters of the UnitedStates; and

(4) Other such factors relating to thesignificance of the pollution problemsought to be regulated.

In no case shall a permit applicationbe required from a concentrated aquaticanimal production facility designatedunder this subparagraph until there hasbeen an on-site inspection of the facility

and a determination that the facilityshould and could be regulated under thepermit program.

§ 122.78 Aquaculture projects.(a) Discharges into aquaculture

projects, as defined in this section, aresubject to the NPDES permit programthrough section 318 of CWA. and inaccordance with 40 CFR Part 125,Subpart B.

(b) Definitions. (1] "Aquacultureproject" means a defined managedwater area which uses discharges ofpollutants into that designated area forthe maintenance or production ofharvestable freshwater, estuarine, ormarine plants or animals.

(2] "Designated project area" meansthe portions of the waters of the UnitedStates within which the applicant for apermit plans to confine the cultivatedspecies, using a method or plan oroperation (including, but not limited to,physical confinement) which, on thebasis of reliable scientific evidence, isexpected to ensure that specificindividual organisms comprising anaquaculture crop will enjoy increasedgrowth attributable to the discharge ofpollutants permitted under this part, andbe harvested within a definedgeographic area.

§ 122.79 Separate storm sewers.(a) Separate storm sewers, as defined

in this section, are point sources subjectto the NPDES permit program. Separatestorm sewers may be covered eitherunder individual NPDES permits orunder the general permit program (see§ 122.82).

(b) Definition. "Separate storm sewer"means a conveyance or system ofconveyances (including but not limitedto pipes, conduits, ditches, andchannels) primarily used for collectingand conveying storm water runoff andeither.

(1) Located in an urbanized area asdesigned by the Bureau of Censusaccording to the criteria in 39 FR 15202(May 1, 1974); or

(2) Not located in an urbanized areabut designated as a significantcontributor of pollution under paragraph(c].

"Separate storm sewer" does notinclude any conveyance whichdischarges process wtstewater or stormwater runoff contaminated by contactwith wastes, raw materials, or pollutant-contaminated soil, from lands orfacilities used for industrial orcommercial activities, into waters of theUnited States or into separate stormsewers. Such discharges are subject tothe general provisions of this ParL

[Comment. Whether or not a system ofconveyances Is or Is not a separate stormsewer for purposes of this Part shall have nobearing on whether or not the system iseligible for funding under Title H of CWA. see40 CFR 35.925-Z1.]

(c) Case-by-case designation ofseparate storm sewer. The Directormay designate a storm sewer notlocated in an urbanized area as aseparate storm sewer. This designationmay be made to the extent allowed orrequired by EPA promulgated effluentguidelines for point sdurces in theseparate storm sewer category; or when:

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

(2) A storm sewer is determined to bea significant contributor of pollution tothe waters of the United States. Inmaking this determination the followingfactors shall be considered:

(i) The location of the storm sewerwith respect to waters of the UnitedStates;

(ii) The size of the storm sewer;,(iii) The quantity and nature of the

pollutants reaching waters of the UnitedStates; and

(iv) Other such factors relating to thesignificance of the pollution problemssought to be regulated.

[Commeat An NPDES permit fordischarges Into waters of the United Statesfrom a separate storm sewer coversallconveyances which are a part of thatseparate storm sewer system, even thoughthere may be several owners-operators ofsuch conveyances. However, discharges intoseparate storm sewers from point sojrceswhich are not part of the separate stormsewer ystems may also require a permit.

§ 122.80 Sllviculturalactivitles.

(a) Silvicultural point sources, asdefined in this section. are point sourcessubject to the NPDES permit program.

(b) Defitions. (1) "Silvicultural pointsource" means any discernible, confinedand discrete conveyance related to rockcrushing, gravel washing, log sorting orlog storage facilities which are operatedin connection with silviculturalactivities and from which pollutants aredischarged into waters of the UnitedStates.

[Commenk The term does not include non-point source slivicultural activities such asnursery operations, site preparation.reforestation and subsequent culturaltreatment. thinning, presc'bed burning, pestand fire control, harvesting operations,surface drainage, and road construction andmaintenance from which them is runoffduring precipitation events. However. someof these activities (such as stream crossingfor roads) may involve point source

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Federal Reister / Vol. 44, No. 116 / Thursday, June 14, 1979 / Proposed Rules

discharges of dredged or fill material whichmay require a CWA section 404 permit (see'33 CFR 209.120).]

(2) "Rock crushing and gravel washingfacilities" means facilities which

process crushed and broken stone,gravel and riprap (see 40 CFR Part 436,Subpart-B, and the effluent limitationsguidelines pursuant thereto).

(3) "Log sorting and log storagefacilities" means facilities whosedischarges result from the holding ofunprocessed wood i.e. logs orroundwood with birk or after removalof bark in self-contained bodies of water(mill ponds or log ponds) or stored onland where water is applied -intentionally on the logs (wet decking).(See 40 CFR Part 429, Subpart J, and theeffluent limitations guidelines pursuantthereto.)

§ 122.81 New sources and newdischargers.

(a) Definitions. (1) "New source" and"new discharger" are defined in§ 122.3(d).

(2) "Source" means any building,structure, facility-or installation fromwhich there is or may be a discharge ofpollutants;

(3) "Existing source" means anysource which is not a new source or anew discharger, .

(4) "Site" means the land or waterarea upon which a sourcb and its waterpollution control facilities are physicallylocated, including but not limited toadjacent land used for utility systems,repair, storage, shipping or processingareap, or other areas incident to theindustrial, manufacturing or waterpollution treatment processes;

(5) "Facilities or equipment" meansbuildings, structures, process orproduction equipment or machinerywhich form a permanent part of the newsource and which will be used in itsoperation, provided that such facilitiesor equipment are of such value as torepresent a substantial commitment toconstruct. It does not include facilities orequipment used in connection withfeasibility, engineering and designstudies regarding the.source or waterpollution treatment for the source.

(b) Critelia and standards for newsource determination. (1) The followingconstruction activities result in a newsource as defined in § 122.3(d):

(i) Construction of a source on a sitewhere another source(s) is not located,or

(ii) construction of a source on a sitewhere another source is located,provided that the process or productionequipment which causes the dischargeof pollutants from the other source is

totally replaced by this construction orthe construction results in a new oradditional discharge.

['Comment: The fact that a source Isconstructed on a site so that It shares or usescommon land or water areas of anothersource for utility systems, repair, storage, orshipping does not prevent that source frombeing considered a new source.]

(2) The modification of an existingsource by changing existing process orproduction equipment, replacing existingprocess or production equipment (exceptas provided in paragraph (b)(I)) or bythe addition of such equipment on thesite of the existing source which resultsin a change in the nature or quantity ofpollutants discharged is not a newsource under this section. Modificationsof this nature are subject to theproisions of § 122.9(e)(1).

(3) Construction of a new source asdefined under § 122.3(d) has commencedif the owner or operator has:

(i) Begun, or caused to begin as part ofa continuous on-site constructionprogram:

(A) Any placement, assembly, orinstallation of facilities or equipment;

(B) Significant site preparation workincluding clearing, excavation orremoval of existing buildings, structuresor facilities which is necessary for theplacement, assembly, or installation ofnew source facilities or equipment; or

(ii) Entered a binding contractualobligation for-the purchase of facilitiesor equipment which are-intended to beused in its operation within areasonable time. Options to purchase orcontracts which can be terminated ormodified without substantial loss, andcontracts for feasibilfty,, engineering anddesign studies do not constitute acontractual obligation under thisparagraph.

(c) Requirement of an EnvironmentalImpact Statement. (1) The issuance of anNPDES permit to a new source:

(i) By EPA may be a major Federalaction significantly affecting the qualityof the human environment within themeaning of the National EnvironmentalPolicy Act of 1969 (NEPA), 33 U.S.C.4321 et seq. ania is subject to theenvironmental review provisions ofNEPA as set out in 40 CFR 6, Subpart I.EPA will determine whether anEnvironmentaflImpact Sttement (EIS) isrequired under § 194.64(d) and 40 CFR 6,Subpart I;

(ii) By an NPDES approved State isnot a Federal action and therefore doesnot require EPA to conduct anenvironmental reiew.

(2) The EIS shall Include arecommendation on whether the permitis to be issued or denied.

(i) If the recommendation is to denythe permit, the final EIS shall containthe reasons for the recommendation andlist those measures, if any, which theapplicant could take to cause therecommendation to be changed;

(ii) If the recommendation is to issuethe permit, the final EIS shallrecommend the actions which thepermittee should take to prevent orminimize any adverse environmentalimpacts;

(3) The Regional Administrator shall'issue or deny the new source NPDESpermit following a 6omplete evaluationof any significant beneficial and adverseenvironmental impacts and a review ofthe recommendations contained in theEIS.

(4)(i) No on-site construction of a newsource for which an EIS is required shallcommence before issuance of a finalpermit incorporating appropriate EIS-related requirements, or beforeexecution by the applicant of a legallybinding written agreement whichrequires compliance with all suchrequirements, unless such constructionis determined by the RegionalAdministrator not to cause significantadverse environmental impact.

(ii) No on-site construction of a newsource for which no EIS is requixed shallcommence before 15 days followingissuance of a negative declaration,unless such construction is determinedby the Regional Administrator to notcause significant adverse environmentalimpacts.

(5) The permit applicant must notifythe Regional Administrator of any on-site construction which begins beforethe times specified in subparagraph (4).If on-site construction begins Inviolation of this paragraph, the RegionalAdministrator shall advise the owner oroperator that it is proceeding withconstruction at its own risk, and thatsuch construction activities constitutegrounds for denial of a permit. TheRegional Administrator may seek acourt order to enjoin construction inviolation of this paragraph,

d) Effect of compliance with newsource performance standards, (1)Except as provided in paragraph (d)(2),any new discharger which commencedconstruction after October 18, 1972, orany new source which meets theapplicable promulgated new sourceperformance standards before thecommencement of discharge, shall notbe subject to any more stringent newsource performance standards or to anymore stringent technology-based

34296.R4296




standards under section 301(b)(2) ofCWA for the shortest of the followingperiods:

(i) Ten years from the date thatconstruction is completed;-

(ii) Ten years from the date the sourcebegins to discharge process or othernon-construction related wastewater, or

(ii) The period of depreciation orambrtization of the facility for thepurposes of section 167 or 169 (or both]of the Internal Revenue Code of 1954.

[Comment: The provisions of thisparagraph do not apply to existing sourceswhich modify their pollution control facilitiesor construct new pollution control facilitiesand achieve performance standards, butwhich are neither new sources or newdischargers or otherwise do not meet therequirements of this paragraph.]

(2) The protection from more stringentstandards of performance afforded byparagraph (d)(1) of this section does notapply to:

(i] Additional or more stringent permitconditions which are not technologybased, e.g., conditions based on waterquality standards, or effluent standardsor prohibitions under section 307(a); and

(ii] Additional permit conditionscontrolling pollutants not listed as toxicunder section 307(a) of CWA or ashazardous under section 311 of CWAand which are not controlled by newsource performance standards. Thisincludes.permit conditions controllingpollutants other than those identified astoxic or hazardous where control ofthose other pollutants has beenspecifically identified as the method tocontrol the toxic or hazardous pollutant.

(3) Where an NPDES permit-issued toa source enjoying a "protection period"under paragraph (d](1) will expire on orbefore the expiration of the protectionperiod, such permit shall r-quire theowner or operator of the source to be incompliance with He requirements ofsection 301 and any other thenapplicable requirements of CWAimmediately upon the expiration of theprotection period. No additional period-for achieving compliance with theserequirements shall be allowed.

(4) The owner or operator of a newsource, a new discharger, a sourcerecommencing discharge afterterminating operations, or a sourcewhich had been an indirect dischargerwhich commences discharging intonavigable waters shall install and havein operating condition, and shall "start-up" all pollution control equipmentrequired to meet the terms andconditions of its permits beforebeginning to discharge. Within theshortest feasible time (not to exceed 90

days), the owner or operator must meetall permit terms and conditions.

(5) After the effective date of newsource performance standards, inaccordance with section 306(e) of CWA.it shall be unlawful for any owner oroperator of any new source to operatesuch source in violation of thosestandards applicable to such source.

§ 122.82 NPDES general permit program.(a) Defin'tions. (1) The term "separate

storm sewer" is defined in § 122.79.. (2) The term "general permit programarea" ('GPPA") means any area sodesignated under paragraph (c) of thissection in which all owners or operatorsof separate storm sewers or othercategories of point sources are subjectto the same general NPDES permit, otherthan owners or operators of suchsources to whom individual NPDESpermits have been issued.

[Commentr All draft general permits forpoint sources other than separate stormsewers must be sent to the EPA DeputyAssistant Administrator for WaterEnforcement during the public commentperiod for 90-day review. If the draft generalpermit does not meet thecriterla of§ 1282(b](2), the EPA DeputyAssistantAdministrator may object to the Issuance ofthe general permit within those g0 days. See§§ 123.73(g) and 224.7(a](2).]

(3) The term "general permit" meansan authorization to discharge which:

(i) Where issued by EPA, is publishedin the Federal Register,

(ii) Where issued by a State, ispublished in accordance with applicableState procedures; and

(ill) Is applicable to all owners andoperators of separate storm sewers orother categories of point sources in adesignated GPPA. other than ownersand operators of such sources to whomindividual NPDES permits have beenissued.

(b) The Director may regulate thefollowing discharges under generalpermits

(1) Separate storm sewers; and(2) Such categories of point sources if

there are a number of minor pointsources operating in a geographical areathat:

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

(ii) Discharge the same types ofwastes;

(III) Would require the same effluentlimitations or operating conditions;

(iv) Would require the samemonitoring requirements and

(v) In the opinion of the Directorwould be more appropriately controlledunder a general permit than under anindivdual NPDES permit

(c) Each general permit shall beapplicable to a class or category ofdischargers meeting the criteria ofparagraph (b) within a GPPA designatedby the Director.

(1) The GPPA shall correspond withexisting geogrpahic or politicalboundaries such as:

(i) Designated planning areas undersections 208 and 303 of the Act;

(ii) Sewer districts or sewerauthorities;

(Ill) City, county or State politicalboundaries;

(iv] State highway systems;(v] Standard metropolitan statistical

areas as defined by the Office ofManagement and Budget;

(vi) Urbanized areas as defined by theBureau of Census (see § 122.79(b](1)); or

(vii) Any other appropriate divisionsor combinations of the aboveboundaries which will encompass thesources subject to the same generalpermit.

(2) Any designation of any GPPA issubject to review by the Director at theexpiration of the general permit for theGPPA. or if individual permits havebeen issued to all the owners andoperators of the classes of point sourceswithin the GPPA. or as necessary toaddress water quality problemseffectively.

(3) NPDES General permits shall beissued in accordance with the applicablerequirements of Part 124.

[Comments. The permit issuing authorty isencouraged to provide as much actual noticeof the draft general permit to the permitteesas possible. This notice would be in additionto the public notice requirements in§ 124.11(o and could include notice in tradeassociations' joumals and newsletters.]

(d) Scope of NDPES GeneralPermits.(1) Each NDPES general permit shallcover all owners and operators ofseparate storm sewers or otherdesignated categories of point sources inthe GPPA for which the general permitIs issued. exceptb

(i) As provided in paragraph (e); and(ii) For owners and operators of

separate storm sewers or othercategories of point sources who arealready subject to individual NPDESpermits prior to the effective date of thegeneral permit;

(2](i) All sources not excluded fromgeneral permit coverage for these -reasons are permittees subject to theterms and conditions of the generalpermit

(i) Sources excluded fromNDPESgeneral permit coverage solely becausethey already have an individual NPDESpermit may request that the individualpermit be revoked. and that they be

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o~qno 'adirn! Rmoqtpr I Vol. 44. No. 1_16 I Thursday, Tune 14, 1979 / Proposed RulesRea-teu I ol 44 No-1 hrdy ue14 99/Pooe ue

covered by the general permit uponrevocation of the individual NPDESpermit, the general permit shall apply tosuch point sources.

(e) Case-by-case designation. (1)Under § 124.70, the Director may revokea general permit as it applies to anyperson and require such person to applyfor and obtain an individual NPDESpermit Interested persons may petitionthe Director to take action under thisparagraph if one of the six cases listedbelow occurs. Cases where individualNPDES permits may be required includethe following:(I) The covered discharge(s) is a

significant contributor of pollution;(ii) The discharger is not in

compliance with the terms andconditions of thegeneral NDPES permit;

(iii) A change has occurred in theavailability of demonstrated technologyor practices for the control or abatementof pollutants from the covered pointsource;

(iv) Effluent limitation guidelines aresubsequently promulgated for pointsources coveredby the general NPDESpermit;

(v) A Water Quality Management plancontaining requirements applicable tosuch point sources is approved; or

(iv) The requirements of paragraph(b)(2)(i) through (iv) are not meL

(2) Where EPA is the permit issuingauthority, the Regional Administratormay revoke a general permit as itapplies to any person and require suchperson to apply for an individual NPDESpermit if:(i) There has been an on-site

inspection of the facility and adetermination that-the point sourceshould and could be regulated under anindividual permit and

(ii] The owner or operator has beennotified in writing of the revocation ofthe general permit and that a permitapplication is required. This notice shallinclude an application form, a statementthat the owner or operatorhas sixtydays from receipt of notice to file theapplication, and a statement that thegeneral permit no longer authorizes theowner or operator to dischargepollutants.

(3) Any owner or operator subject to ageneral permit may request to beexcluded from the c6verage of thegeneral permit by applying for anindividual permit. The owner oroperator shall submit such application,with reasons supporting the request, tothe Director no later than ninety daysafter the publication by EPA of thegeneral permit in the Federal Register orthe publication by a State in accordancewith applicable State law. All such

1requests shall be granted by issuance ofany individual permit if the reasonscited by the owner or operator areadequate to support the request.

(4) Where an individual NPDESpermit is issued to an owner or operatorotherwise subject to a general NPDESpermit, the general permit as it appliesto the individual NPDES permittee isautomatically revoked on the effective -

date of the individual permiL(5) Any owner or operator applying

for an individual NPDES permit underthis paragraph is subject to theprocedures set forth in Part 124.

§ 122.83 Special considerations underFederal raw.

Under section 301(b)(1](C) of CWA,permits shall be consistent with andreflect requirements under applicable-Federal laws other than CWA and to theextent authorized by law, requirementsunder Executive Orders. For permitsissued by the Regional Administratorsuch Federal requirements include but"are not limited to the followingr

(a) Executive Order 11990 (Protectionof Wetlands).

(b) Executive Order 11988"(Preservation of Floodplains).

(c) Sections 3,4, and 5 of the WiId andScndcRivers Ac 16 U.S.C. 1273 et seq.

(d) The NationalHistoricPreservptian Act of 196, 42 U.S.C. 4321et seq. (and the related Executive Order11593).. (e) The Land and Water ConservationAct, 16 U.S.C. 460, et seq.

(f0 Section 7 of the EndangeredSpecies Act. 16 U.S.C. 1531 etseq.

(grSection 307 of the CoastalZoneManagement Act, 16 U.S.C. 1451 et seq.

[Comment: NPDES permits must beconsistent with approved coastal zonemanageme.t plans byvirtue of sections307(c]C3)(A) (FederallyIssued penrits] and307(c)(1) (approval and oversight of Statepermit programs).]

(h) The Solid Waste Disposal Act, asamended by the Resource ConservationandRecoveryAct of 1976, 42 U.S.C. 6901et seq. I

(i) The Safe Drinking Water Act, 42U.S.C. 300f et seq.() The Marine Protection, Resbarch,

and Sanctuaries Act (the OceanDumping Act), 33 U.S.C. 1401 et seq.

(k) The Surface Mining Control andReclamation Act of 1977, 30 U.S.C. 1201etseq,(1) The Fish and Wildlife Coordination

Act, 16 U.S.C. 661 etseq.

Appendix A.-PokV Source Cakegod/e and PentEzfrt'oo Defoe

Point source category PemIt explrallondates

Adhesives June 30. 1901

Aluminum Forng.._ _.- June 30,19081Auto and Other Lurndi . Juno 30,1981Eal Maactxkng Jun 0,191Coal Mining ....... - -- ecember 31, 1000Col Coating Juno 30, 131Copperfomiig June 30,1901Electric and Elctrk Co nors,.... June 30.191ElectrolatlIll June 30. 1981Explohives Manufacturing June 30. 181Foundries Juno 00,1901Gum &n Wood Chemlcals.. .. . 00,1901inorge niCt ramica . March31, 1961k and Stee ..... 00, 10lLeather Tannin and FsWhn.. ...Seplrnbr 30,190Mochanical Products - June 30,1981Nonferrous Metals December 31, 1981Ore Miring ........ .... e cenbe 31. INOrganic - Mtch 31. 19. 1Paint and Ink - .------- Decenber 31, 191(Pesticides "June 30, 191Petroleum Refining ........... eSoptember 30, 10o(Pharmeceutlcals Jun 30,1981Phologapnio Supplies June3D, 190'Plastics Processing June 30. 190Plastic and Synthetc materials - Match 31,198'Porcelain Enamel June 30. 198Printing and Publislng ................. Dcmb" 31, 19Pulp and Paper- - March 31,198'Rubber Madi 3a1.19soaps ad Detergents JW*e30.198&Steam Electric ......... optembof 30.1984Tx . ..- - March31,1907kob e . --t ember 30.196

PART 123-STATE PROGRAMREQUIREMENTSSubpart A-General Program RequirementiSec.123.1 Purpose and scope.123.2 Definitions.123.3 Elements of a program submission.123.4 Program description.123.5 Attorney General's Statement.123.6 Memorandum of Agreement with the

Regional Administrator.123.7 Requirement to obtain a permit.123.8 Operational requirements.123.9 Compliance evaluation programs.123.10 Enforcement authority.123.11 Progress reports.123.12 Approval process. •123.13 Procedure for revislon of Stato

programs.123.14 Criteria for withdrawal of Stato

programs.123.15 Procedures for withdrawal of State

programs.123.16 Sharing of Information.123.17 Coordination with other programs.

Subpart B-Addillonal Requirements forState Hazardous Waste Programs123.31 Purpose and scope.123.32 Interim authorization.123.33 Authorization.123.34 Program description.123.35 Attorney General's statement for

interim authorization.123.36 Progress reports.123.37 Memorandum of Agreement.123.38 EPA review of State permits.123.39 Operational requirements.,123.40 Approval process.123.41 Criteria for withdrawal.

O/! ell£1H




Subpart C-Additional Requirements forState Underground Injection ControlPrograms

Sec.123.51123.52123.53123.54123.55123.56123.57123.58123.59123.60

Purpose and scope..Program description.Attroney General's StatementRequirement to obtain a permiLProgress reports.Annual report.Operational requirements.Program approval process.Withdrawal process.State UIC program revisions.

Subpart D-Additional Requirements forState Programs Under the NationalPollutant Discharge Elimination System123.71 Purpose and scope.123.72 Memorandum of Agreement.123.73 Operational requirements.123.74 Control of disposal of pollutants into

wells.123.75 Inspections, monitoring, entry and

reporting.123.76 Receipt and use of Federal

information.123.77 Transmission of information to EPA.123.78 Objections to proposed permits.123.79 Prohibition.123.80 Compliance evaluation programs.123.81 Continuing planning process.123.82 Agency board membership.123.83 Approval process.

Subpart E-Additional Requirements forState Programs Under Section 404 of theClean Water Act

123.91 Purpose and scope.123.92 Memorandum of Agreement.123.93 Memorandum of Agreement with the

Secretary.123.94 Attorney General's Statement123.95 Program description.123.96 Inspections, monitoring, entry and

reporting.123.97 Receipt and use of Federal

information.123.98 Transmission of information to EPA.123.99 Objections to permits.123.100 Prohibitions.123.101 Enforcement authority.123.102 Continuing planning process.123.103 Agency board membership.123.104 Approval process.123.105 Applicable conditions and

requirements.123.106 General permits.123.107 Activities not requiring permits.123.108 Permit application.123.109 [Reserved]123.110 Coordination requirements.123.111 Emergency procedures.123.112 Reporting.

Authority: Resource Conservation andRecovery Act, 42 U.S.C. 6901 et seq.; SafeDrinking Water Act, 42 U.S.C. 300f et seq.;Clean Water Act. 33 U.S.C. 1251. -

Subpart A-General ProgramRequirements

§ 123.1 Purpose and scope.(a) This part specifies procedural and

other requirements which must bepresent in State programs in order toobtain approval of the Administratorunder:.

(1) Section 3006 (hazardous waste) ofthe Solid Waste Disposal Act asamended by the Resource Conservationand Recovery Act of 1976, (Pub. L 94-580, as amended by Pub. L. 95-609,hereinafter called RCRA);

(2) Section 1422 (undergroundinjection control-UIC} of the SafeDrinking Water Act (Pub. L. 93-523, asamended by Pub. L. 95-190, hereinaftercalled SDWA);

(3] The National Pollutant DischargeElimination System (NPDES) (sections318, 402 and 405 of the Clean Water Act.Pub. L 92-500, as amended by Pub. L.95-217 and Pub. L 95-576, hereinaftercalled CWA); and

(4) Section 404 (dredge and fill) ofCWA.

[Comment This Part should be read inconjunction with Parts 122 and 124 whichprovide general requirements of the Federalprogram and. by the references contained inthis Part to State programs.]

(b) A State program which conformsto the applicable requirements of thisPart shall be approved by theAdministrator.

(c) Upon approval of a State programthe Administrator or the Secretary (inthe case of section 404 programs) shallsuspend the issuance of Federal permitsfor those activities subject to theapproved State program.

(d) Any State program approved bythe Administrator shall at all times beconducted in accordance with therequirements of this Part.

(e) In many cases States will lackauthority to regulate activities on Indianlands. This lack of authority to regulateacitivities on Indian lands. This lack ofauthority does not impair a State'sability to obtain full program approvalin accordance with this Part. However,States are required to exercisejurisdiction over Indian lands to theextent they are authorized to do so.

[Comment Partial State programs are notallowed under RCRA. NPDES and section404. However, failure of a State to regulateactivities on Indian lands does not constitutea partial program. Similarly, a State canassume primary enforcement responsibilityfor theUIC program, notwithstanding§ 123.51(e), where the State program isunable to regulate activities on Indian landswithin the State. States are advised tocontact the United States Department of

Interior concerning authority over Indianlands. EPA or the Secretary, in the case ofsection 404 programs, will administer theprogram on Indian lands whenever the Statelacks authority.]

(f) Except as provided in § 123.33(c),nothing in this Part precludes a Statefrom:

(1) Adopting or enforcingrequirements which are more stringentor more extensive than those requiredunder this Part;

(2) Operating a program with a greaterscope of coverage than that requiredunder this Part.

[Comment. Where an approved Stateprogram has greater scope of coverage thanrequired by Federal law the additionalcoverage is not part of the Federallyapproved program. For example, where aState requires permits for discharges intopublicly owned treatment works, thesepermits are not NPDES permits.]

§123.2 Deflnitions.The definitions in Part 122 apply to

this Part

§123.3 Elementsofaprogramsubmission.

(a) EPA will not begin formal reviewof a proposed State program until itreceives three copies of a completeprogram submission. EPA will notify theState within 30 days whether itssubmission is complete. If a submissionmade by a State is found to beincomplete, the statutory review period(i.e., the period of time allotted for EPAreview under the appropriate Act] shallnot begin until all the requestedinformation is filed with EPA.

(b) If the State's submission ismaterially changed during the statutoryreview period, the review period shallrecommence.

(c) The State and EPA may extend thereview period by agreement.

(d) The submission shall contain thefollowing elements:

(1) A letter from the Governor of theState requesting program approval;

(2) An Attorney General's Statementas required by § 123.5;

(3) A Memorandum of Agreementwith the Regional Administrator asrequired by § 123.6;

(4) A complete program description.as required by § 123.4. describing howthe State intends to carry out itsresponsibilities under this Part;

(5) Copies of the following forms the,State intends to employ in its program:

the permit form(s); the applicationform(s): standard reporting form(s) andthe manifest form. Except as provided inPart 122, forms used by States need notbe identical to the forms used by EPA or

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the Secretary but should require thesame basic information. The State neednot provide copies of uniform nationalforms it intends to use but should noteits intention to use such forms.

[Comment: States are encouaged to useuniform national forms established by theAdministrator or the Secretary (in the case ofsection 404 programs). Uniform nationalforms may be modified to include the StateAgency's name, address, logo and othersimilar information, as appropriate, in placeof EPA's. NPDES States are required to usestandard Discharge Monitoring Reports(DMR).]

(6) Copies of all applicable Statestatutes and regulations, including thosegoverning State administrativeprocedures;

(7) In the case of section 404 programsa Memorandum of Agreement with theSecretary as required by § 123.93; and

(8] The showing required by§ 123.40(d) (RCRA) and § 123.58(b)fUIC).

§ 123.4 Program description.Any State that wishes to administer a

program shall submit to theAdministrator a complete description ofthe program it proposes to establish andadminister under State law or under aninterstate compact. The programdescription shall include the informationbelow. Additional requirements forState program descriptions are detailedin § § 123.34 (RCRA), 123.52 (UIC), and123.95 (404).

(a) A description in narrative form ofthe scope, structure, coverage andprocesses of the State program.

(b) A description (includingorganization charts) of the organizationand structure of the State agency oragencies which will have responsibility -for administering the program includingthe information listed below. If morethan one agency is responsible foradministration of a program, theirresponsibilities must be delineated, theirprocedures for coordination set forth,and one of the agenices may bedesignated a "lead agency" to facilitatecommunications between EPA and theState agencies-having programresponsibility. Where the State proposesto administer a program of greater scopeof coverage than is required by Federallaw, the'information provided under thisparagraph shall indicate the resourcesdedicated to administering the Federallyrequired portion of the program;

(1) A description of the State -gencystaff who will be engaged in carryingout the State program, including thenumber and occupations of theemployees;

[Comment The State need not submitcomplete job descriptions for every employeeengaged in carrying out the State program.]

(2) An itemization of the proposed oractual, costs of establishing andadministering the program for the firsttwo years after approval, including costof the personnel listed in subparagraph(1), cost of administrative support, andcost of technical support.

(3) An itemization of the sources andamounts of funding, including Federalgrant money, available to the StateDirector for the first two years afterapproval to meet the costs listed insubparagraph (2) identifying anyrestrictions or limitations upon thisfunding.

(4) Information on the number, sizeand character of the activities that willbe regulated under the approved Stateprogram. (See §§ 123.34 (RCRA), 123.52CUIC), and 123.95 (404)).

(c) A description of applicable Stateprocedures, including permittingprocedures and any State appellatereview procedures;t (d) A general description of the State's

priorities for issuance of permits and forenforcement, including a completedescription of the State's compliancetracking and enforcement program.

[Comment. It is anticipated that a morespecific identification of priorities will becontained in subsidiary State/EPAagreements such as annual grantagreements.]

§ 123.5 Attorney General's Statement(a) Any State desiring to administer a

program covered by this Pirt shallsubmit a statement from the State'Attorney General (or the attorney forthose State or interstate agencies whichhave independent legal counsel), thatthe laws of the State, or the interstatecompact, provide adequate authority tocarry out the program described under§ 123.4 and to meet the requirements ofthis Part. this statement shall includecitations to specific statutes,administrative regulations, and, whereappropriate, judicial decisions to'support the analysis. The authoritiescited by the State Attorney General orother legal officer shall be in the form oflawfully adopted State statutes andregulations which shall be in full forceand effect at the time the statement issigned.

[Commant To qualify as "independentlegal counsdl" the attorney signing thestatement required by this section must havefull authority to independently represent theState agency in court on all matterspertaining to the State program.]

(b) Where jurisdiction can beexercised over activities on Indian

lands, the statement shall contain anappropriate analysis of the State'sauthority.

§ 123.6 Memorandum of Agreement withthe Regional Administrator.

(a) Before the Administrator approvesany State program, the State Directorand the Regional Administrator shallexecute a Memorandum of Agreement(MOA), which the Administrator shallapprove before or at the time of programapproval. In addition to therequirements of paragraph (b), theMemorandum of Agreement mayinclude other terms, conditions, oragreements relevant to theadministration and enforcement of theState's regulatory program which are noinconsistent with this Part, NoMemorandum of Agreement shall beapproved which contains provisionswhich restrict EPA's statutory oversightresponsibility..

[CommenL The Administrator maydelegate his or her authority to approvemodifications of MOA's. In such cases,however, the Regional Administrator'sdecision would be subject to review by EPAHeadquarters.]

(b) The Memorandum of Agreementshall include the following:

(1) Provisions for the prompt transferof any pending permit applications orany other relevant information notalready in the possession of the StateDirector (e.g., support files for permitissuance, compliance reports, etc.) fromEPA to the State. Where existingpermits are transferred to the State foradministration, the Memorandum ofAgreement shall contain provisionsspecifying a procedure for transferringresponsibility for these permits.

[Comment In many instances States willlack the authority to directly administerpermits issued by the Federal government,However, a procedure may be established totransfer responsibility for these permits. Forexample, a State could issue permits Identlcto the outstanding Federal permits whichcould be simultaneously revoked.]

(2) Provisions specifying classes andcategories of permit applications andpermits that the Regional Administratoxwill receive from the State-for review,comment and, where applicable,objection;

[Comment: The nature and basis of EPAreview of State permits and permitapplications differs between the programsgoverned by this Part, See § J 123.30 (RCRA),123.78 (NPDES) and 123.99 (404). In addition,EPA will Issue guidance on the significanttypes of permits that will be subject to EPAreview pursuant to these Memoranda ofAgreement.]




(3) Provisions specifying the frequencyand content of reports (e.g., see§ 123.11), documents and otherinformation which the State must submitto EPA; and provisions on programevaluations. The State shall allow EPAto routinely review State records,reports and files relevant to theadministration and enforcement of theState program. State reports may becombined with grant reports whereappropriate;

(4] Provisions on the State'senforcement program, including-

(i) Compliance monitoring by theState and by EPA. These ipay specifythe basis on which the RegionalAdministrator may select facilities oractivities within the State for EPAinspection. The Regional Administratorwill normally notify the State at leastseven (7)days before any suchinspection;

(ii) Fiscal arragnements for effectivelitigation support for the State attorneygeneral or other appropriate legalofficers;

(5] Where appropriate, provisions forjoint processing of permits by the Stateand EPA, for facilities or activitieswhich require permits from both EPAand the State under different programs.

[Comment: To promote efficiency and toavoid duplication and inconsistency, Statesare encouraged to enter into joint processingagreements with EPA for permit issuance.Likewise. States are encouraged to considersteps to coordinate or consolidate their ownpermit programs and activities.]

(6) Provisions for modification of theMemorandum of Agreement.

(c) The Memorandum of Agreementand the State/EPA Agreement should beconsistent. If the State/EPA Agreementindicates that a change is needed in theMemorandum of Agreement, theMemorandum of Agreement may beamended in accordance with theprocedures set forth in this Part. TheState/EPA Agreement may not overridethe Memorandum of Agreement.

[Comment- Detailed program priorities andspecific arrangements for EPA support of theState program will change and are thereforemore appropriately negotiated in the contextof annual agreements rather than in theMOA. Where this is the case it may still beappropriate to specify in the MOA the basisfor such detailed agreements, e.g., a provisionin the MOA specifying that EPA will select-facilities in the State for inspection annuallyas part of the State/EPA agreement.]

§ 123.7 Requirement to obtain a permit.Except where an activity may be

authorized by rule as providedim§ § 122.35, 123.54 (UIC) and 123.39(RCRA), State permit programs must

have a statute or regulation, enforceablein State courts, which prohibits theactivity requiring a permit under theappropriate Act, except as authorizedby a permit in effect under the Stateprogram. Where an activity may beauthorized by rule there must be asimilar statutory prohibition againstsuch activities except as authorized by arule in effect under the State program.

§ 123.8 Operational requirements.State programs must have legal

authority to implement each of thefollowing provisions and must beadministered in conformance with eachof the following provisions:

(a) § 122.5-{Signatories);(b) § 122.7--(Permit issuance);(c) § 122.8 (a) and (b)-Duration);(d) § 122.9--(Permit review and

modification);(e) § .22.10-(Permit termination);(f) § 122.11--{Permit conditions);(g) § 122.12 (a) and (d}-{Schedules of

compliance);(h) § 122.14--(Recordkeeping/

Reporting);(i) § 122.5--(Noncompliance

reporting);{j) § 122.16(b--{Confidential

information);(k) § 124.6 (a) and (b)--Draft permit)

except as provided in § 123.98(c](2) forState section 404 programs;

(1) § 124.8-{Statement of basis),except as provided in § 123.98(c)(2) forState section 404 programs;

(m) § 124.9--{Fact sheets), except asprovided in § 123.98(c)(2) for Statesection 404 programs;

(n) § 124.11--(Public notice);(o) § 124.12--{Public comments and

requests for'hearings);(p) § 124.19 (a) and (c)--(Response to

comments);(q) Such other provisions as are

specified in §§ 123.39 (RCRA), 123.57(C} and 123,73 (NPDES).

§ 123.9 Compliance evaluation programs.(a) State programs shall have

procedures for receipt, evaluation,recordkeeping and investigation forpossible enforcement of all notices andreports required of permittees (or failureto submit such notices and reports).

(b) State programs shall haveinspection and surveillance proceduresto determine, indeperqdent ofinformation supplied by operators andpermittees, compliance ornoncompliance with applicable programrequirements, standards and limitations,filing requirements and permit terms orconditions, including the following:

(1) A prosram which is capable ofmaking comprehensive surveys of all

waters and/or activities subject to theState Director's authority in order toIdentify persons subject to regulationwho have failed to comply with permitapplication or other filing requirements.Any compilation, index, or inventory ofsuch activities shall be made availableto the Regional Administrator uponrequest;

(2) A program for periodic inspectionsof the activities subject to regulation.These inspections shalh

(i) Determine compliance ornoncompliance with issued permit termsand conditions and other programrequirements;

(ii) Verify the accuracy of informationsubmitted by permittees in reportingforms and other forms supplyingmonitoring data; and(ill) Verify the adequacy of sampling,

monitoring and other methods used bypermittees to develop that information;

(3) A program for investigating,evidence of violations of applicableprogram and/or permit requirements,which shall apply whether the evidenceis indicated in the reports and -notifications evaluated under paragraph(a) or by the survey, inspection, andsurveillance activities'provided inparagraph (b); and

(4) The State's enforcement programshall include procedures for receivingand ensuring proper consideration ofevidence submitted by the public aboutviolations. Public effort in reportingviolations shall be encouraged, and theState Director shall make availableinformation on reporting procedures.

(c) The State officers engaged incompliance evaluation activities shallhave authority to-enter any site orpremises subject to regulation or inwhich records are kept in order toinspect, monitor or otherwise investigatesuspected violations of the Stateprogram including suspected violations-of permit terms abd conditions;[Comment- State programs which require a

search warrant for entry conform with thisrequirement.]

(d) Investigatory inspections shall beconducted, samples shall be taken andother information shall be gathered in amanner (e.g., using proper "chain ofcustody" procedures) that will produceevidence admissible in an enforcementproceeding or in court.

§ 123.10 Enforcement authority.(a) Any State agency administering a

program shall have available thefollowing remedies for violations of theappropriate Act:

(1) To restrain immediately andeffectively any person by order or by

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22AFp~rArn Register I Vol. 44. No. 116 / Thursday, Tune 1t4, 1979 / Proposed Rules

suit in State court from engaging in anyunauthorized activity which isthreatening or causing actual damage to-public health or the environment, or,where EPA is authorized to takeimmediate action, to immediately notifythe R~gional Administrator by telephoneof any unauthorized activity which isthreatening or causing actual damage topublic health or the environment;

(2) To sue in courts of competentjurisdiction to enjoin any threatened orcontinuing violation of any programrequirement, including permit terms andconditions, without the necessity of aprior revocation of the permit;

[Comment. Subparagraph (a)(1) requiresthat States have a mechanism (e.g., anadministrative order or a temporaryrestraining order) to stop any unauthorizedactivity endangering public health or theenvironment, or, alternatively, to notify EPAof the situation so it may act. Where EPAcannot act immediately, e.g., in a State with afully approved UIC program, the secondalternative is not acceptable. Subparagraph(a)[2) merely requires that states haveauthority to permanently enjoin unauthorizedactivities.]

(3) To assess or to sue to recover incourt civil penalties for the violation byany'person of any of the following.

(i) Any applicable permit term orcondition;

(ii) Any notice or reportingrequirement;

(iII) Any duty to allow inspection,ertry, or other monitoring activites; or

(iv) Any rule, regulation,.or orderissued by the state.

(4) To seek criminal remedies,including fines, for the violation by anyperson of any applicable programrequirement, including-violations ofpermit terms or conditions.

(5) To seek criminal remedies,including fines, against any person whoknowingly makes any false statement,

-representation or certjcation in anyprogram form or any notice or report,including those required by the termsand conditions of any issued permit orwho knowingly renders inaccurate anymonitoring device or method required tobe maintained by the State Director

[Comment- In many States the StateDirector will be represented-in State courtsby the State Attorney General or otherappropriate legal officer. While the StateDirector need not appear in court actionsunder this Subpart, he/she should havepower to request that any of the aboveactions be brought.]

(b)(1) The maximum civil penaltiesand criminal fines that can be sought bythe state under subparagraphs (a](3), (4)and (5) of this section shall be at leastthe same as the maximum amounts that

can be sought by the EPA under theappropriate Act. The maximum civilpenalty or criminal fine shall beassessable for each instance of violationand, if the violation is continuous, shallbe assessable up to the maximumamount for each day of violation.

[Comment. The Agency welcomescomments on this requirement. In particular,EPA is interested in determining whetherthere are any State statutes which meet allthe requirements of ths Part except the abovesubparagraph. Any State which believes thisto be the case should, in addition, notify EPAof what, if any, criminal remedies areprovided for under State law.]

• (2] The burden of proof and degree ofknowledge or intent required under statelaw for establishing violations undersubparagraphs (a)(3), (4) and (5) shall beno greater than the burden of proof ordegree of knowledge or intent EPA mustprovide when it brings an action underthe appropriate Act;

[Comments: (1) For example, thisrequirement is not met if State law includesmental state as an element of proof for civilviolations.

(2) Under CWA the Agency must establishthat a violation was negligent or willful tomaintain a criminal action. Under RCRA thedegree'of criminal intent for EPA prosecutionis "knowingly" and under UIC "willfuL"Criminal prosecution under the State programshall require no greater burden of proof thanthat for EPA prosecution.]

(c) Any civil penalty assessed, soughtor agreed upon by the State Directorunder subparagraph (a)(3) of this sectionshall be appropriate to the violation. Acivil penalty agreed upon by the StateDirector in settlement of administrativeor judicial litigation may be adjusted bya percentage which represents thelikelihood of success in establishing theunderlying violation(s) in such litigation.In the event that such a civil penalty,together with-the costs of expeditiouscompliance, would be so severelydisproportionate to the resources of theviolator as to jeopardize continuance inbusiness, the payment of the penaltymay be deferred or the penalty may beforgiven in whole or part, ascircumstances may warrant.

For a violation resulting from failureto meet a statutory or final permitcompliance deadline, "appropriate tothe violation" as used in this paragraph,means a penalty which is equal to:

(1) An amount appropriate to redressthe harm or risk to public health or theenvironment llus

(2) An amount appropriate to removethe economic benefit gained or to begained from delayed compliance; plus

(3) An amount appropriate as apenalty for the violator's degree of

recalcitrance, definance, or indifferenceto requirements of the law; plus

(4) An amount appropriate to recoverunusual or extraordinary enforcementcosts thrust upon the public: minus

(5) An amount, if any, appropriate toreflect any part of the noncomplianceattributable to the government itself;and minus

(6) An amount appropriate to reflectany part of the noncompliance causedby factors completely beyond theviolator's control (e.g., floods, fires).

[Comment" In addition to the above, theState may have other enforcement remedies,The following enforcement options, while notmandatory, are highly recommended:

(i) Procedures for assessment by the Statefor the costs of an investigation, inspection,or monitoring survey which led to theestablishment of the violation:

(ii) Procedures which enable the State toassess or to sue any persons responsible forthe unauthorized activities for any expensesincurred by the State in renioving, correcting,or terminating any adverse effects upon thehuman health and the environment resultingfrom the unauthorized activity, whether ornot acaldental;

(W11) Procedures which enable the State tosue for compensation for any loss ordestruction of wildlife, fish or aquatic life,and for any other damages caused byunauthorized activity, either for the State forany residents of the State who are directlyaggrfeved by the unauthorized activity, orboth. and

Qiv) Procedures for the administrativeassessment of penalties by the Director.]

§ 123.11 Progress reports.States with interim authorization

under RCRA (see § 123.32) and Stateslisted as needing a UI program (see§ 123.51) shall submit information everysix months in accordance with § 123.30(RCRA) and § 123.55 (1I) on the statusand progress of State efforts to obtainapproval.

§ 123.12 Approval process.The process for EPA approval of State

programs is set out in § § 123.40 (RCRA),123.58 (UIC), 123.83 (NPDES) and 123,104(404).§ 123.13 Procedure for revision of Stateprograms.

(a) Program revision may be Initiatedat the request of either EPA or the State.Program revision may be necessarywhen the controlling Federal or Statestatutory or regulatory authority Ismodified or supplemented. The Stateshall keep EPA fully informed of anyproposed modifications to Its basicstatutory or regulatory authority, Itsforms, procedures or priorities.

(b) Revision of a State program shallbe accomplished as follows:

QAQFk9 r-ederal Re s r / Vol. 44, No. im / Thursday, June 14, 1979 / Proposed Rules




(1) The State shall submit a modifiedprogram description, Attorney General'sStatement, Memorandum of Agreement,or such other documents as arenecessary under the circumstances.

(2] Whenever EPA determines that theproposed program modification(s) issubstantial, the Agency shall issuepublic notice and provide anopportunity to comment for a period ofat least 30 days. The public notice shallbe mailed to interested persons andshall be published in enough of thelargest newspapers in the State toprovide Statewide coverage. The publicnotice shall summarize the proposedmodifications and provide for theopportunity to request a public hearing.Such a hearing willbe held if there issignificant public interest.

• (3) The program modification shallbecome effective upon the approval ofthe Administrator. Notice of anysubstantial modification shall bepublished in the Federal Register. Non-substantial program modifications maybe approved by a lettter from theAgency.

[Comment: The Administrator is expectedto delegate his or her authority in this regardto the Regional Administrator. The RegionalAdministrator's action would, however, besubject to review by EPA Headquarters.]

(c] Approved State programs shallnotify EPA whenever the State proposesto transfer all or part of any programfrom the approved State agency to anyother agency, and shall identify any newdivision of responsibilities among theagencies involved. If such change affectsthe State's ability to meet therequirements of this Part, the newagency is not authorized to administerthe program until approved by theAdministrator. Organizational chartsrequired under § 123.4(b) shall berevised and resubmitted.

(d) Whenever the Administrator hasreason to believe-that circumstancesmay-have changed with respect to aState program, he may request, and theState shall provide a supplementalAttorney General's Statement, programdescription, other document orinformation as necessary.§ 123.14 Criteria for withdrawal of Stateprograms.

(a) The Administrator may withdrawprogram approval where a Stateprogram no longer complies with therequirements of this Part and the Statefails to take corrective action. Suchcircumstances include the following:.

(1) Where the State's legal authorityno longer meets the requirements of thisPart, including:

(i) Failure of the State to promulgateor enact new authorities whennecessary- and

(ii) Action by a State legislature orappellate level court striking down orlimiting State authorities.

(2) Where the operation of the Stateprogram fails to comply with therequirements of this Part, including:

(i) Failure to exercise control overactivities required to be regulated underthis Part, including failure to issuepermits;

(ii) Repeated issuance of permitswhich do not conform to therequirements of this Part; and

(ili) Failure to comply with the publicparticipation requirements of this ParL

(3) Where the State's enforcementprogram fails to comply with therequirements of this Part, including:

(i) Failure to act on violations ofpermits or other program requirements;

(ii) Failure to seek and collectadequate enforcement penalties; and

(iii) Failure to inspect and monitoractivities subject to regulation.

(4) Failure to comply with the terms ofthe Memorandum of Agreement requiredunder § 123.5; and

(5) Such other criteria as provided inthe applicable provisions of Subparts B-D.

§ 123.15 Procedures for withdrawal ofState programs.

(a) A State with a program approvedunder this Part may voluntarily transferprogram responsibilities required byFederal law to EPA (or to the Secretaryin the case of 404 programs) by takingthe following actions, or in such othermanner as may be agreed upon with theAdministrator.

(1) The State shall give theAdministrator (and the Secretary in thecase of Section 404 programs) 180 daysnotice of the proposed transfer and shallsubmit a plan for the orderly transfer ofall relevant program information not inthe possession of EPA (such as permits,permit files, compliance files, reports,permit applications, etc.) which arenecessary for EPA (or the Secretary inthe case of section 404 programs) toadminister the program.

(2) Within 60 days of receiving thenotice and transfer plan, theAdministrator (and the Secretary In thecase of section 404 programs) shallevaluate the State's transfer plan andshall identify any additional informationneeded by the Federal Government forprogram administration and/or identifyany other deficiencies in the plan.

(3) At least 30 days beforeathe transferis to occur the Administrator shallpublish notice of the transfer in the

Federal Register and in enough of thelargest newspapers in the State toprovide Statewide coverage, and shallmail notice to all permit holders, permitapplicants and other interested personson appropriate EPA and State mailinglists.

(b) The following procedures applywhen the Administrator orders thecommencement of proceedings todetermine whether to withdrawapproval of a State program, other thana UIC program. The procesi forwithdrawing approval of State UICprograms is set outin § 123.59.

(1) Order. The Administrator mayorder the commencement of withdrawalproceedings on his or her own initiativeor in response to a petition from aninterested person alleging failure of theState to comply with the requirements ofthis Part or of the appropriate Act as setforth in § 123.14. When theAdministrator receives a petition tocommence withdrawal proceedings hemay conduct an informal investigationof the allegations to determine whetherprobable cause exists to commenceproceedings under this paragraph. TheAdministrator's order commencingproceedings under this paragraph shallfix a time and place for thecommencement of the hearing and shallspecify the allegations against the State

.which are to be considered at thehearing. Within 30 days the State shalladmit or deny these allegations in awritten answer. The party seekingwithdrawal of the State's program shallhave the burden of coming forward withthe evidence in a proceeding under thisparagraph.

(2) Defin'tions. For purposes of thisparagraph the definitions of §§ 22.03 (a),(b), (i). (I}, and (p) of this Chapter applyin addition to the following:

(i) "Party" means the petitioner, theState, the Agency and any other personwhose request to participate as a partyis granted.

(ii) "Person" means the Agency, theState and any individual or organizationhaving an interest in the subject matteror the proceeding:(/i) "Petitioner" means any person

whose petition for commencement ofwithdrawal proceedings has beengranted by the Administrator.

(3) Procedures. The followingprovisions of Part 22 of this Chapter areapplicable to proceedings under thisparagraph:

(i) Section 22.02-(use of number/gender);

(ii) Section 2 2.0 4 (c}-{authorities ofPresiding Officer);

(il) Section 2 2.06--(filing/service ofrulings and orders);

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(iv) Section 22.07 (a) and (b)-provided, that the time forcommencement of the hearing shall notbe extended beyond the date set in theAdministrator's order without approvalof the Administrator-computation/extension of time);

(v) Section 22.08-however substitute"order commencing proceedings" for'.'complaint"--(Ex Parte contacts);

(vi) Section 22.09--(examination offiled documents);

(vii) SeCtion 22.11 (a), (c)' and (d),.provided, motions to intervene must befiled within 15 days from the date thenotice of the Administrator's order is-'first published--(intervention);

(viii) Section 22.16provided, serviceshall be in accordance withsubparagraph (4) of this paragraph, andprovided further, the words"recommended decision" shall be.substituted for the words "initialdecision, except as provided in § 22.28"in § 22.16(c),--(motions);

(ix) Section 22.19 (a), (b) and (c)-(prehearing conference);

(x) Section 22.22--(evidence);'(xi) Section 22.23-{objections/offers

of proof);(xii) Section 22.25-(filing the

transcript); and(xiii) Section 22.26-(findings/

conclusions).(4) Record ofproceedings. (i) The

hearing shall be either stenographicallyreported verbatim or tape recorded, andthereupon transcribed, by an officialreporter designated by the PresidingOfficer;,

(ii) All orders issued by the Presiding.Officer, transcripts of testimony, writtenstatements of position, stipulations,exhibits, motions, briefs or other writtenmaterial of any kind submitted in thehearing shall be a part of the record andshall be available for inspection orcopying, upon payment of costs, by 'theparties or any other persons in theOffice of the Hearing Clerk. Inquiriesmay be made at the office of theAdministrative Law Judges, HearingClerk, 401 M Street, S.W., Washington,D.C. 20460;(iii) Upon notice to all parties thePresiding Officer may authorizecorrections to the transcript whichinvolve matters of substance;

(iv) An original and two (2) copies ofall written submissions to the hearingshall be filed with the Hearing Clerk;

(v) A copy of each such submissionshall be served by the person makingthe submission upon the PresidingOfficer and each party of record. Serviceunder this paragraph shall take place bymail or personal delivery;

(vi) Every submission shall beaccompanied by an acknowledgementof service by the person served or proof-of service in the form bf a statement ofthe date, time and manner of serviceand the names of the-persons served,certified by the person who madeservice; and

(vii) The Hearing Clerk shall maintainand furnish to any person upon request,a list containing the name, serviceaddress and telephone number of allparties and their attorneys or dulyauthorized representatives. -

(5) Participation by a person not aparty. A person who is not a party may,in the discretion of the Presiding Officer,be permitted to make a limitedappearance by making oral or writtenstatement of his position on the issueswithin such limits and on suchconditions as may be fixed by thePresiding Officer, but he may nototherwise participate in the proceeding.

(6) Rights ofparties. (i) All parties tothe proceeding may:

(A] Appear by counsel or otherrepresentative in all hearing and pre-hearing proceedings;

(B) Agree to stipulations of factswhich shall be made a part of therecord.

(7) Recommended decision. (i) Within30 days after the filing of proposedfindings and conclusions, the PresidingOfficer shall evaluate the record beforehim, the proposed findings andconclusions and any'briefs filed by theparties and shall prepare arecommended decision, and shall certifythe entire record, including therecommended decision, to theAdministrator.

(ii) Copies of the recommendeddecision shalLbe served upon all parties.

(iII) Within 20 days after thecertification and filing of the record andrecommended decision, all parties mayfile with the Administrator exceptions tothe recommended decision and a brief insupport thereof.

(8) Decision by Administrator. (i)Within 60 days after the certification ofthe record and filing of the PresidingOfficer's recommended decision, theAdministrator shall review the recordbefore him and issue his own decision;

(i) If the Administrator concludes thatthe State has administered the programin conformity with the appropriate Actand regulations his decision shallconstitute "final agency action" withinthe meaning of 5 U.S.C. 704.

(iii) If the Administrator concludesthat the State has not administered theprogram -in conformity with theappropriate Act he shall list thedeficiencies in the program and provide

the State a reasonable time, not toexceed 90 days, to take such appropriatecorrective action as the Administratordetermines necessary.

(iv) Within the time prescribed by theAdministrator the State shall take suchappropriate corrective action as 'required by the Administrator and shallfile with the Administrator and allparties a statement certified by the StateDirector that such appropriate correctiveaction has been.taken.

(v) The Administrator may require afurther showing in addition to thecertified statement that corrective actionhas been taken.

(vi) If the State fails to take suchappropriate corrective action and file acertified statement thereof, theAdministrator shall issue asupplementary order withdrawingapproval of the State program. If theState takes such appropriate correctiveaction, the Administrator shall Issue asupplementary order stating thatapproval of authority Is not withdrawn.

(vii) The Administrator'ssupplementary order shall constitutefinal Agency action within the meaningof 5 U.S.C. 704.

(c) Withdrawal of authorization underthis section and the appropriate Actdoes not relieve any person fromcomplying with the requirements ofState law.

§ 123.16 Sharing of Information.(a) Any information obtained or used

pursuant to a State program shall beavailable to EPA upon request withoutrestriction. If the information has beensubmitted to the State under a claim ofconfideiitiality, the State must submitthat claim io EPA when providinginformation under this Part. Anyinformation obtained from a State andsubject to a claim of confidentiality willbe treated in accordance with theregulations in 40 CFR Part 2. If EPAobtains from a State Information that Isnot claimed to be confidential, EPA maymake that information available to thepublic without further notice.

(b) EPA may furnish information toStates in order to implement theseregulations. In the case of Informationclaimed as confidential by submitters,State access will be subject to the rulesin 40 CFR Part 2, Subpart B.

§ 123.17 Coordination with otherprograme.

(a) Initial Issuance of State permitsunder this Part may be coordinatedwhenever possible and appropriate Intiming and procedure with initialissuance of RCRA, NPDES, 404 and UIC"permits whether they are controlled by

34304




the State or EPA. If steps are taken toaccomplish this coordination, they shallbe addressed in the Memorandum ofAgreement.

(b) The State director of any approvedprogram which may affect the planningfor and development of hazardous wastemanagement facilities and practicesshall consult and coordinate withagencies designated under section4006[b) of RCRA as responsible for thedevelopment and implementation ofState solid waste management plansunder section 40002(b) of RCRA (40 CFRPart 256, proposed at43 FR 38534-38546,August28,1978).Subpart B-Additional Requirements

for State Hazardous Waste Programs

§ 123.31 Purpose and scope.This subpart describes additional

substantive and proceduralrequirements for State hazardous wasteprograms under sectidn 3006 of RCRA,and additional features of EPA's reviewof State hazardous waste programs. Incase of any inconsistency between this

-Subpart and Subpart A, this Subpart iscontrolling.

§ 123.32 Interim authorization.(a) Interim authorization may be

granted only for the 24 months beginningon the date six months after the date ofpromulgation of regulations undersection 3001 of RCRA at 40 CFR 250,Subpart A (proposed at 43 FR 58954,December 18,1978). The Administatorshall grant interim authorization undersection 3006(c) of RCRA if the State'sprogram complies with the requirementsof Subparts A and B of this Part (exceptas provided-in paragraph (b)), and theState:

(1] Controls by permit system at leaston-site or off-site hazardous wastedisposal facilities. The legislativeauthority to meet this requirement shallbe effective no later than 90 days afterthe date of promulgation of 40 CFR250,Subpart A, (proposed at 43 FR 58954-58968, December 18,1978);

(2) Commits adequate resources, andhas the-administrative capability.toprocess permits and conduct aneffective enforcement program,including a program for compliance-evaluation. -

(b) To obtain interim authorizationStates need to show compliance withSubparts A and B of this Part, exceptthat they need only show substantialcompliance with § § 123.8,123.10 and123.39(aj. States need not comply with§ § 123.33 and 123.39 (b), (c) and (d).

[Comment: A program to control hazardouswaste treatment or storage facilities is

desirable but is not required for interimauthorization. Note, however, that Stateswithin interim authorization which have thenecessary authorities in existence toimplement a manifest system and/or controlof treatment and/or storage facilities must doso.]

§ 123.33 Authorization.(a) The Administrator will not grant

authorization under section 3006(b) ofRCRA to any State hazardous wasteprogram until after the date ofpromulgation of regulations undersection 3001 of RCRA at 40 CFR 250,SubpartA (proposed at 43 FR 58954-58968, December 18,1978), or of thisPart, whichever is later.

(b) No partialprograms will beapproved. A State program must complywith all the requirements of Subparts AandB of this Part in order to obtain theapproval of the Administrator.

(c) In order to obtain approval, a Stateprogram must be consistent with theFederal program and State programsapplicable in other States. For purposesof this paragraph, the phrase "Stateprograms applicable in other States"refers only to those hazardous wasteprograms which have receivedauthorization under this Part. Anyaspect of the State program whichrestricts, impedes, or operates as a banon the free movement across the Stateborder of hazardous wastes from or toother States for treatment, storage ordisposal at facilities having hazardouswaste permits under the Federal or anapproved State program may be deemedinconsistent for purposes of thisparagraph.

§123.4 Program description.The State's program description shall

meet the requirements of § 123.4 andinclude the following:

(a) In the case of a submission forinterim authorization the State'sprogram description shall contain thefollowing:

(1) A general description and estimate

(i) The number, types and relativesizes of activities to be regulated by theState during the interim authorizationperiod; and

(ii) If available, the total quantity ofhazardous wastes expected to bedisposed of ann'ually from both in-Stateand out-of-State sources.

(2) An "authorization plan" whichshall describe the additions ormodifications necessary to the Stateprogram to qualify for authorizationunder this Part by the end of the interimauthorization period. This plan shallinclude a schedule which the Stateproposes to achieve those additions or

modifications, and shall describe thenature of and schedules for any changesin State legal authority, resource levels,the permit system and the surveillanceand enforcement program which will benecessary during the interimauthorization period in order to enablethe State to become eligible forauthorization.

(b) In the case of a submission forauthorization, the State's programdescription shall include:

(1) A description of the State manifestsystem.

(2) A description of the types andrelative sizes of regulated activities,including an estimate of the number ofthe following:

(i) Generators;(ii) Transporters; and(iii) On- and off-site storage, treatment

and disposal facilities which must filefor or have been issued a State permit.

(3) If available, an estimate of theannual quantities of hazardous wastes:.

(i] Generated within the State;(ii) Transported into or out of the

State; and(iii) Stored, treated, or disposedofh (A)

on-site; and (B) off-site.(c) Where more than one agency

within a State has responsibility foradministering the State program, anidentification of a "lead agency" and adescription of how the State agencieswill coordinate their activities.

(d) The State's program descriptionmay include such other matters as theState deems relevant.

[Commen-A State's past performance inresponding to situations involving hazardouswaste which may present an endangermentto health or the environment will beconsidered by EPA in deciding whether toapprove its hazardous waste programs.]

§ 123.35 Attorney General's statement forInterim authorization.

In the case of a submission for interimauthorization, the Attorney General'sStatement shall certify that the State haslegal authority to implement theprogram (see, § 123.32) and that theauthorization plan (see § 123.34(a)(2)), ifcarried out would provide the Statewith the legal authority to meet therequirements for authorization.

§ 123.36 Progress reports.In accordance with the reporting

requirement of § 123.11. the StateDirector of a State with interimauthorization shall submit a semi-annualprogress report to the EPA RegionalAdministrator within four weeks of thedate six months after the date ofconferral of interim authorization status,and at six month intervals thereafter

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until the expiration of interimauthorization. Such reports shall brieflysummarize, in a manner and formprescribed by the Administrator, theState's compliance in meeting the -requirements of the authorization plan,the reasons and proposed remedies forany delay in meeting milestones, and theanticipated problems and Solutions forthe next reporting period.

§ 123.37 Memorandum of AgreementIn addition to the requirements of

§ 123.6, the Memorandum of Agreementshall include provisions on thefollowing:

(a) The Regional Administrator or hisdesignee may conduct inspections lof allmajor HWM facilities in each Federalfiscal year for which the State hasreceived interim authorization orauthorization. The RegionalAdministratorand the State Directormay agree to limitations regardinginspections of non-major HWMfacilities, generators and transporters.

(b) The State Director shall agree toforward to the Regional Administratorcopies of draft permits and permitapplications for all major HWMfacilities for review and comment. TheRegional Administrator and the StateDirector may agree to limitationsregarding review and comment of draftpermits and/or permit applications fornon-major HWM facilities.

(c) No limitation on EPA inspection ofnon-major HWM facilities, generatorsand transporters under paragraph (a),shall restrict EPA's right to inspect anyHWM facility, generator or transporterit has cause to believe is not incompliance with RCRA; however, beforeconducting an inspection, EPA willnormally allow the State a reasonableopportunity to conduct a complianceevalution inspection.

[Comment. The inspections conductedpursuant to paragraph (a) are intended to beroutine compliance evaluation surveys*.Except for major HWM'facilities, EPA mayagree to limit these routine inspections.However, paragraph (c) provides that EPAmay inspect any facility, generator ortransporter which the Agency has cause tobelieve is violating RCRA after affording theState the opportunity to investigate the

,situation.]

§ 123.38 EPA review of State permits.(a) The Regional Administrator may

comment on permit applications anddraft permits within the time provided inthe Memorandum of Agreement.

(b) Where a comment indicates thatEPA believes issuance of the permitwould be inconsistent with RCRA orregulations promulgated thereunder, itshall set forth:

(1) A statement of the reasons for thecomment (including the section of RCRAor regulations promulgated thereunderthat support the comment]; and

(2) The actions that should be takenby the State Director in order to addressthe comments (including the terms andconditions which the permit wouldinclude if it were issued by the RegionalAdministraor).

(c) The Regional Administrator shallwithdraw such a comment if satisfiedthat the State met or refuted his or herconcerns.

§ 123.39 Operational requirements.(a) In addition to meeting the

requirements of § 123.8, any Statehazardour waste permit program musthave legal authority to implement eachof the following provisions and shall beadministered in accordance with each ofthe following provisions:

(1) Section 122.23-(Application for apermit);

(2) Section 122.24-(Establishing permitterms and conditions); and

(3) Section 122.27-Reporting).(b) State hazardous waste programs

must have legal authority to control thefacilities and activites covered by§ § 122.25 (special HWM facilitypermits), 122.26 (permits by rule), and122.28 (emergency authorizations).States may choose to regulate thesefacilities and activities in the samemanner-as EPA under § § 122.25, 122.26and 122.28 or in a more stringentmanner.

[Comment: An example of more stringentcontrol would be the issuance of anindividual permit rather than to authorize theactivity by rule.]

(c) Any State program shall provide adegree of control over the generationand transportation of hazardous wastesequivalent to 40 CFR Part 250, SubpartsB and C (proposed at 43 FR 58969,December 18,1978, and 43 FR 18506.April 28,1978, respectively), and shallinclude the management of manifestsinvolving both intrastate and interstatetransportation of hazardous waste.States shall take such measures as maybe appropriate to ensure that interstateshipments of hazardous wastes are sentto and arrive at permitted HWMfacilities. States must-use the manifestformat published by the Administratorin the Federal Register (40 CFR250.22(h), proposed at 43 FR 58977 and58980), but may supplement that formatas appropriate to meet specificrequirements or needs.

(d) The State process for identificationand/or listing of hazardous waste andthe standards applicable to owners and

operators of hazardous waste storage,treatement and disposal facilities shallprovide a degree of control equivalent to40 CFR 250, Subpart A and D (proposedat 43 FR 58954-58968 and 58994-59022respectively, December 18, 1978),

[Comment: Section 3000(b) does not requireState programs to be identical to EPA'sprogram, but only "equivalent." Theseregulations Identify what is necessary for aprogram to be considered "equivalent" to theFederal program, and provide the State adegree of flexibility within the basicframework. The degree of flexibility accordedto States has been carefully set out in theregulations thenselves. A program will beconsidered "equivalent" only If It meets allapplicable requirements of Part 123.

To meet the requirements of this Part.States need not use the same language orstructure as RCRA and its regulations.However, where allowable under State law,EPA encourage States to incorporate Federalrequirements by reference.

The proposed regulations of 40 CFR Part250 indicate, to an extent, certainrequirements for State programs which arenecessary in order to be deemed"equivalent." For example, 40 CFR 250,10(o),advises States that in order to be doomedequivalent "their programs [must] containstandards and procedures which Identify ashazardous at least the same universe ofwastes defined as hazardous" by EPA. Inaddition, the Agency Is considering severalalternative approaches for systematicallyjudging equivalency with the 40 CFR Part 250re4uirements, including requiring States todirectly employ 40 CFR Part 250. For furtherinformation and discussion see the preambleto this Part.]

§ 123.40 Approval process.(a) These regulations identify the

.procedures by which State Programapplications for authorization or Interimauthorization will be developed andprocess. Except as exressly provided,each of these requirements apply both torequests for authorization and forinterim authorization.

(b) Prior to submitting an applicationto EPA for approval of a State program,the State shall issue public notice of itsintent to seek program approval fromEPA. This public notice shall:

(1) Be circulated in a mannercalculated to attract the attention ofinterested persons including:

(i) Publication in enough of the largestnewspapers in the State to attractStatewide attention; and

(ii) Mailing to persons on the Stateagency mailing list and to any otherpersons whom the agency has reason tobelieve are interested;

(2) Indicate when and where theState's proposed submission may bereviewed by the public or discussedwith agency officials in such

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z,.,..,1 -Dn,Aafo,. I Ui ,,A Nn. hR I Thursday. Tune 14. 1979 I Proposed Rules349 ctua . I-- -

informational public meetings as the_ agency may choose to hold;

(3) Indicate the cost of obtaining acopy of the submission;

(4) Provide for a comment period ofnot less than So days during whichinterested members of the public canexpress their views on the proposedprogram;

(5) Provide that a public hearing willbe held by the State or EPA if sufficientpublic interest is shown or,alternatively, schedule such a publichearlng,_ (i) Any public hearing to be held bythe State on its application forauthorization shall be scheduled noearlier than 30 days after the notice ofhearing is published;

(Hi) The State is not required to hold aseparate public hearing on itsapplication for interim authorization. Ifthe State declines to hold a hearing, theState shall state inits notice ofapplication that a public hearing will beheld byEPA if sufficient public interestis shown. The State shall participate inany public hearing held by EPA in lieuof a State hearing (see § 123.40(e) (1)and (2));

(6) Indicate what type of authorizationthe State will seek and briefly outlinethe fundamental aspects of the Stateprogram and, where interimauthorization is sought, of theauthorization plan; and

(7) Indicate who an interested memberof the public should contact with anyquestions.

(c) If the proposed State program issubstantially modified after the publiccomment period provided in paragraph(b)(4)-of this section, the State shall,prior to submitting its program to theAdministrator, provide the opportunityfor further public comment inaccordance with the procedures ofparagraph (b) of this section, providedthat the opportunity for further publiccomment maybe limited to thoseportions of the State's application whichhave been changed since the priorpublic notice.

(d) After complyingwith therequirements of (b] and (c) above theState may submit, in accordance with§ 123.3, a proposed program to EPA forapproval. The program submission shallinclude copies of all written commentsreceived by the State, a transcript orrecording of any public hearing whichwas held by the State and aresponsiveness summary whichidentifies the public participationactivities conducted, describes thematter presented to the public,summarizes significant commentsreceived and responds to these

comments, including explanations onwhat the State has done toaccommodate these comments.

(e) Within ninety days from the dateof receipt of a complete programsubmission, the Administrator shall:

(1) Make a tentative determination asto whether or not he expects to grantauthorization to the State program'orissue notice, in accordance with theprocedures of paragraph (b) of thissection, of a public hearing on theState's application for interimauthorization. If the Administratorindicates that he may not approve theState program he shall include a generalstatement of his areas of concern. TheAdministrator shall give notice of thistentative determination in the FederalRegister and in accordance withsubparagraph (b)(1) of this Section;

(2) Schedule a public hearing to beheld by EPA no earlier than 30 daysafter notice of the tentativedetermination of authorization or of apublic hearing on interim authorization.provided, that if public interest in ahearing is not expressed, the hearingmay be cancelled if a statement to thiseffect is included in the public notice;

13) Afford the public 30 days after thenotice to 'comment on the State'ssubmission and the tentativedetermination; and

(4) Note the availability of the Statesubmission for inspection and copyingby the public.

(f) Within ninety days of the noticegiven pursuant to paragraph (e) of thissection, the Administrator shall make afinal determination whether or not toapprove the State's program taking intoaccount any comments submitted. TheAdministrator shall give notice of thisfinal determination in the FederalRegister and in accordance withsubparagraph {b)(1) of this section. If theAdministrator determines not toapprove the State program, thenotification shall include a concisestatement of the reasons for thisdetermination.

§ 123.41 Criteria for withdrawalIn addition to the criteria set forth in

§ 123.14, any aspect of the State programwhich restricti, impedes or operates asa ban on the free movement across theState border of hazardous wastes fromor to other States for treatment, storageor disposal at facilities havinghazardous waste permits under anapproved State or Federal programconstitutes grounds for withdrawal ofauthorization.

Subpart C-Additional Requirementsfor State Underground InjectionControl Programs

§ 123.51 Purpose and scope.

(a) This Subpart describes additionalsubstantive and proceduralrequirements for State UIC programsauthorized under sections 1421 and 1422of SDWA. In case of any inconsistencybetween this Subpart and Subpart A,this Subpart is controlling.

(b] Each State listed-in the FederalRegister under section 1422(a) of SWDAshall submit to the Administrator aproposed State U1C program complyingwith J 123.3 of this Part within 270 daysof the date of promulgation of theseregulations or within 270 days of thedate of listing under section 1422(a) ofSDWA, whichever is later. The.Administrator may, for good cause,extend the date for submission of aproposed State UIC program for up to anadditional 270 days.

(c) EPA will establish a UIC programin any State which does not comply withparagraph (b) of this section. EPA willcontinue to operate a UIC program insuch a State until the State receivesapproval ofa UIC program inaccordance with the requirements ofthis Part.

(d) Any State which desires to operatea UIC program but which is not listed bythe Administrator under section 1422(a)of the SDWA may, nonetheless, make asubmission for program approval inaccordance with the requirements ofthis Part. In addition to meeting therequirements of § 123.3 of this Part, sucha submission shall contain a petitionfrom the Governor of the Staterequesting that the State be listed.[Comment: States which are authorized to

administer the NPDES permit program undersection 402 of CWA are encouraged to relyon existing statutory authority, to the extentpossible, in developing a State UIC program.Section 402b])(l]D) of OWA requires thatNPDES States have the authority "to issuepermits which... control thedisposal ofpollutants into wells." In many instances.therefore, NPDES States will have existingstatutory authority to regulate well disposalwhich satisfies the requirements of the UICprogram. Note, however, that CWA excludescertain types of well injections friom thedefinition of 'polutant" If the State'sstatutory authority contains a similarexclusion It may need to be modified toqualify for MIC program approval.

Unlisted States are also encouraged to seekUIC approval prior to listing. If EPAdetermines that the State's program is fullyapprovable the State will be listed andapproved at the same time.]

(e) Whenever a State UIC program isfully approved by EPA, the State

M--A -1 -D--tf I UA AA o 116 / Thursday. Tune 14, 1979 / Proposed Rules34307




assumes primary enforcement authorityunder section 1422(b)(3) of SDWA. EPAretains primary enforcementresponsibility whenever the Stateprogram is disapproved in whole or inpart.

(Comment. States with fully approvedprograms have authority to enforce anyviolation of the underground injection contropr6gram. States which have partiallyapproved programs have authority to enforceany violation of the approved portion. Ineither case, EPA retains authority to enforceviolations of a State underground injectioncontrol program, except that, when a Statehas a fully approved program, EPA will nottake enforcement actions without providingprior notice to the State and otherwisecomplying with section-1423 of SDWA.]

(f)(1) If a State can demonstrate thatthere are no underground injectionswithin the State for one or more types o:injection wells subject to SDWA, theState need not submit a program toregulate such injections. However, theState shall demonstrate adequate legalauthority to initiate control over suchinjections should they occur in thefuture.

(2) State UIC programs may beapproved in part or in full within the "discretion of the Administration. (See§ 122.3, Definition of "PartialAuthorization").

§ 123.52 Program description.

(a) In addition to the requirements of§ 123.4, the State's program descriptionshall include:

(1) A State permit plan in accordancewith paragraph (b) of this section. Thispermit plan satisfies the requirements ol§ 123.4(b)(4); .

(2) A detailed description of how theState will implement the authorizationof underground injection by rule inaccordance with § 122.35, including theprocedures which will be followed inpromulgating such rules.

(3) a brief description and schedulefor the State's program to establish andmaintain a current inventory of injectionwells which are required to be permitteunder State law;

(4) A description of aquifers or partsthereof which the State has determinedare underground sources of drinkingwater under § 122.33, a detaileddescription of the aquifers, or partsthereof, not designated, and a summaryof the data upon which the exemptionsare based.

(5) A description and schedule for theState's program to establish aninventory of Class V wells, to prohibit,Class IV wells and to assess the needfor a program to regulate Class V wells.

(b) The State Director shall develop apermit plan which assures that allinjection wells within the State, exceptthose authorized by rule, are issued aUIC permit as expeditiously as possiblebut no later than 5 years after approvalof the State UIC program. The permitplait shall:

1 (1) Describe the State's priorities forissuing permits including the number ofpermits by class of injectors which willbe issued each year over the first fiveyears of operation-of the program;

(2) Describe how the State willimplement the mechanical integritytesting requirenients of § 146.08including the frequency of testing thatwill be required and the number of teststhat will be reviewed by the State eachyear, and

(3) Describe how the State will notifyinjectors of the requirement for a permitand when to file permit applications (i.e,by individual notice, rule, regulation, orstatute). The notice required by thisparagraph shall clearly establishapplication filing deadlines as soon aspossible but not later than 4 years afterprogram approval for each injection well-

- which must receive a permit.(c) In determining the priorities

required by subparagraphs (b)(1) and(b)(2) the Director shall consider thefollowing factors:

(1) Injection wells known to becontaminating underground sources ofdrinking water,

(2) Injection wells known to beinjecting fluids containing toxic orhazardous contaminants;

(3) Likelihood of contamination ofunderground sources of drinking water,

(4) Potentially affected population;(5) Injection wells violating existing

State requirements;(6) Coordination with the issuance of

permits required by other State orFederal.permits programs;

(7) Age and depth of the injectionwell; and

(8) Expiration dates of existing Statepermits, if any.

§ 123.53 Attorney General's Statement.In addition to the requirements of

§ 123.5, the State's Attorney General'aStatement shall include an analysis ofthe legal authority for and enforceabilityof any rule prohibiting or authorizing.well injections without a permit.

§ 123.54 - Requirement to obtain a permirLThe State may authorize certain well

injections by rule rather than by permit.Any authorization by rule shall comply

'with § 122.35.

§ 123.55 Progress reports.In accordance with § 123.11, each

State listed by the Administrator asneeding a UIC program (see § 123.51(b))shall submit to the Administrator sixmonths after the date of promulgation ofthese regulations, or six months after thodate of listing, whichever is later, areport describing the State's progress Indeveloping a UIC program. If theAdministrator extends the time forsubmission of a UIC program anadditional 270 days, pursuant to§ 123.51(b), the State shall submit asecond report six months after the firstreport is due. The report shall be in amanner and form prescribed by theAdministrator.

§ 123.56 Annual report.(a) Each approved State shall submit

each year a written report to theAdministrator (in a manner and formprescribed by the Administrator)consisting of:

(1) The noncompliance informationrequired under § 122.15(b) Including asummary of violations during thepreceding year,

(2) A summary of enforcement actionstaken by the State Director includingactions taken to enforce the ban onClass IV wells;

(3) A detailed description of theState's implementation of Its program;

(4) Any necessary changes to theprogram description and the permit planwhich more accurately reflect the State'sprogress in issuing permits;

(5) A list of all permits Issued wherean alterndtive for tubing and packer hasbeen approved by the State Directorunder 40 CFR § 146.12;

(6) An updated inventory of activeunderground injection operations In theState; and

(7) A summary of all surface waterand ground water contamination caseswhich may have been caused or affectedby underground injection.

(b) In addition to the requirementh ofparagraph (a) of this section the StateDirector shall provide the Administratorwithin three months of the completion ofthe first year of State operation of theUIC program a supplemental reportcontaining information on remedialactions taken by operators of Class 1Iwells based upon these regulations(including information on the results ofmechanical integrity testing and onevaluations of construction of nearbywells located within the area of review),The supplemental report required bythis paragraph may be submitted alongwith the annual report if the time forreporting under this paragraph coincideswith that of paragraph (a).




[Comment: EPA will issue further guidanceon the preparation of the 'mid-courseassessment" required under this paragraph.]

§ 123-57 Oeratlonal requirements.In addition to the requirements of

§ 123.8, State UIC programs shall havelegal authority to implement each of thefollowing provisions and shall beadministered in accordance with each ofthe following provisions:

(a) Section 122.33--{Designation ofaquifers);

(b) Section 122.35--Authorization byrule];

(c) Section 122.36-Authorization bypermit);

(d) Section 122.37-(Area permits);(e) Section 122.38-{Corrective

action);(f) Section 122.39-{General

prohibition against movement of fluidsinto underground sources of drinkingwater);

(g) Section 122.42--{Permit terms);(h) Section 122.43-Reporting);(i) Section 122.44-Special

requirements for wells managinghazardous wastes];

(j) Section 122.45-Elimination ofClass IV); and

(k) Section 122.46-(Inventory of Classv). -

§ 123.58 Program approval process.(a) Prior to submitting an application

to the Administrator for approval of aState UIC program, the State shall issuepublic notice of its intent to adopt a UICprogram -nd to seek program approvalfrom EPA. This public notice shall:

(1) Be circulated in a mannercalculated to attract the attention ofinterested persons. Circulation of thepublic notice shall include publication inenough of the largest newspapers in theState to attract Statewide attention andmailing to persons on appropriate Statemailing lists;

(2) Indicate when and where theState's proposed program submissionmay be reviewed by the public;

(3) Indicate the cost of obtaining acopy of the submission;

(4) Provide for a comment period ofnot less than 30 days during whichinterested persons can comment on theproposed UIC program;

(5) Schedule a public hearing on theState program for no less than 30 daysafter notice of the hearing is published;

(6) Briefly outline the fundamentalaspects of the State UIC program; and

(7) Indicate whom an interestedmember of the public should contact forfurther information.

(b) After complying with therequirements of paragraph (a) above any

State may submit a proposed UICprogram under section 1422 of SDWA -and § 123.3 of this Part to EPA forapproval. In accordance with§ 123.3(d](8), such a submission shallinclude a showing of compliance withparagraph (a) of this section including aresponsiveness summary whichidentifies the public participationactivities conducted, describes thematters presented to the public,summarizes significant commentsreceived and responds to thesecommentsi

(c) Upon determining that a State'ssubmission for UIC program approval Iscomplete the Administrator shall Issuepublic notice of the submission, provideanu opportunity to comment, andschedule a public hearing. This noticemay specify that a public hearing willnot be held unless sufficient publicinterest is expressed. '

(d) Within 90 days of the receipt of acomplete submission (as provided in§ 123.3) or material amendment thereto,the Administrator shall by rule, eitherfully approve, disapprove, or approve inpart the State's UIC program.

§ 123.59 Withdrawal process.Approval of a State UIC program may

be withdrawn and a Federal programestablished in its place where theAdministrator determines, after holdinga public hearing, that the State programis not in compliance with therequirements of SDWA and this Part.

(a) Notice to State of Public Hearing.If the Administrator has cause to believethat a State is not administering orenforcing its authorized program incompliance with the requirements ofSDWA and this Part, he or she shallinform the State by registered mail ofthe specific areas of allegednoncompliance. If the Statedemonstrates to the Administratorwithin 30 days of such notification thatthe State program Is in compliance, theAdministrator shall take no furtheraction toward withdrawal and shall sonotify the State by registered mail.

(b) Public Hearing. If the State hasnot demonstrated Its compliance to thesatisfaction of the Administrator, within30 days after notification, theAdministrator shall inform the StateDirector and schedule a public hearingto discuss withdrawal of the Stateprogram. This hearing shall be convenednot less than 60 days nor more than 75days following the publication of thenotice of the hearing. Notice of thehearing shall Identify theAdministrator's concerns. All interestedparties shall be given opportunity topresent written and oral testimony on

the State's.program at the publichearing.

(c) Notice to State of Findings. Wherethe Administrator finds after the publichearing that the State is not incompliance, he or she shall notify theState by registered mail of the specificdeficiencies in the State program and ofnecessary remedial actions. Within 90days of receipt of the above letter, theState shall either carry out the requiredremedial action or the Administrator .shall withdraw program approval. If theState carries out the remedial action or,as a result of the hearing is found to bein compliance, the Administrator shallso notify the State by registered mailand conclude the withdrawalproceedings.

§ 123.60 State UIC program reisions.Within 270 days of any amendment to

Parts 122,123,124 or 146 which revisesor adds any requirement respecting anapproved State UIC program, the Stateshall submit such information as isspecified by EPA showing that the StateUIC program meets the revised or addedrequirement. Failure by the State tocomply with this provision is cause fordisapproval or partial disapproval of theState program.

Subpart D-Additlonal Requirementsfor State Programs Under the NationalPollutant Discharge EliminationSystem

§ 123.71 Purpose and scope.(a) This subpart describes additional

requirements for State NPDES programsunder sections 318,402 and 405 of CWA.A State NPDES program will not beapproved by the Administrator undersection 402 of CWA unless it hasauthority to control the dischargesspecified in sections 318 and 405(a) ofCWA. Permit programs under s-ctiions318 and 405 will not be approvedindependent of a section 402 permitprogram.

(b) These regulations are promulgatedunder the authority of sections 304(i)and 101(e) of CWA, and implement therequirements of those sections.

(c) No partial NPDES programs will beapproved by EPA. The State programmust regulate (except as provided in§ 122.63) all point source discharges ofpollutants, discharges into aquacultureprojects and disposal of sewage sludgewhich results in any pollutant from suchsludge entering into any waters of theUnited States within the State'sjurisdiction. NPDES authority maybeshared by two or more State agenciesbut each agency musthave StatewideJurisdiction over a class of activities.

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Where more than one agency isresponsible for issuing permits, each.agency must make a submission-meetingthe requirements of § 123.3 beforeformal EPA review will commence.

[Comment.-Although thes e regulationsrequire States to administer completeprograms, EPA recognizes that, as a. matter ofFederal law. a; State may lack authority toexercisejurisdiction overdischargesffromfacilities on Indian lands.The-lack of such.authority does not constitute grounds forrefusaL to authorize State admiristration ofaprogram. However, to the extentthat Stateshave authority, to exercise-jurisdiction, theyare required to do, so.]

(d] After program approvar EPAshallretain jurisictformover any permits(including general permits) which it hasissued unless arrangements have beenmade with the State in theMemorandum of Agreement for theState to assume responsibility for thesepermits. Retention of jurisdiction shallinclude the processing of any permitappeals, modification requests, orvariance requests; the conduct ofinspections, and the receiptand reviewof self-monitoringreports. Ifany permitappeal, modification request or variancerequest is. not finally resolved when theFederally issued permit expires, EPAmay, when ageed to by the State,continue to retain jurisdiction until thematter Is, resolved.

(e) In case of any inconsistencybetween this Subpart and Subpart A,this Subpart is controlling.

§ 123.72 Memorandum of Agreement.(a) In- addition to the requirements of

§ 123.6k the Memorandum of Agreementbetween the RegionalAdministrator andthe State Director shall containprovisions specifying the extent towhich. EPA review of State-issuedpermit6 will be waived under sections402(d)(3), (e) or (0. of CWA, While the -Regional.Administrator and the State'may agree to waive EPA review ofcertain "classes or categories" orpermits, no waiver of review may begranted.forthe following dischargesr

(1) Discharges into; the territorial seaor contiguous zone;

(2l Discharges which may affect thewaters of a State othet than the one in.which the discharge originates

(3J Proposed general permits (seeI= 282);.(4) Discharges from publicly owned

treatment works with a daily averagedischarge exceeding 1 million gallonsper day;,

(5) Dischargesiof uncontaminated.cooling water with, a daily averagedischarge. exceeding 50amillion. gallonsper day

(6) Discharges from any majordischarger orfrom any- discharger within,any of the 2t industrial categories listedin the Appendix A to- Part 122;

(7YDischarges from other sources witha daily average discharge exceeding0.5(one:halff million-gallons per day,except that EPA review of permits fordischarges-on non-process wastewatermay be waived; regardless of flow, withthe priorconcurrence of theEPA DeputyAssistant.Administrator for WaterEnforcement;

(b) Whenever a waiver is grantedunder paragraph (a), a statement thattheregional Administratorretains theright to terminate the waiver, in wholeorimpart, at any time by sending theDirector written notice of termination.The waiver shall not-affect the duty ofthe: Statetosupply EPAwith copiesofall permit applications, public noticesand final permits.

§ 123.73 Operatlonat'requirements.El addition to the requirements of

§ 123.8, State NPDES programs shallhave legalauthority to implement eachofthe following provisions and-must beadministeredin conformance with eachof the following-pro.visions:

(a. Section 122.64 (e) and Cfl-(Variance applications);

(b) Section 122.66-(Duration ofpermits);

(c)Sectimon122.67--Prohibitions).(d) Section 122.68-{Conditions

applicable ta all permits);(el Section 122.69--(Applicable

limitations, standards, prohibitions andconditions);

(fJ Section.122.73G-{alculation. andspecification. of effluent limitations andstandards);

(g, SectionL122.71-(Recordingfreporting of monitoring results);

(h) Section 122.72,--Non- compliancereporting);

(i) Section 122.73--(Modifications);j) Section 122.74-(Permit

termination);(k), Section 122.75--LDisposal into

wells, etc.)-Il, Sectioni22.76--Concentrated.

animafeeding operations);(ml Section. 122.77-(Aquatic animal.

production facilities.)(n] SectiomlZ2.78--Aquaculture

projects);(o) Section,122.79-[Separate storm,

sewers); .(p}Sectioni22.80--Silviculture)](qJ' Section 122.8Z-General]Permits -

provided'States, arenot required:to-implement the general permit programunder-1§22.8If. aStatechooses~taissuegeneralpermits, such action issubjechtoethefoUawingconditions;

(11 Any, generalpermit shall be Issuedin accordance with, § 122.82-

(2) Priorto, orat the time of proposal-of any general permit, the StateAttorney General (or other legal officeras appropriate, see §423.5) shall certifythat the State has adequate legalauthority toissue and enforce generalpermits;

(3) EPA shall have 90 days to reviewany proposed general permit; and

(4) All general permits, except thosefor separate storm sewers, may beobjected to on EPA's behalf by- the EPADeputy Assistant Administrator forWaterEnforcement. The State shalltransmit a copy of any such proposedgeneral permit to, the EPA DeputyAssistant Administratorfor WaterEnforcement at the same time theproposed permit is transmitted to theenforcement Division Director;,

(r) Section i24.56--(Factsheeta),(sl Section 124.58--(Public notice);(t) Section 12459-(Comments from

government agencies]; ,(u) SubpartsA,.B, C,,D, H,, J, KancL

of Part 125; and(v 40 CFR Parts 129,133 and

Subchapter N.

§ 123.74 Control of drsposatot pollutantsInto wells.

State NPDES permit programs musthave authority to issue permits tocontrol the disposal, of pollutants intowells. Such authority shall enable theState Director toprotect the publichealth, and welfare and to prevent thepollution of ground and surface watersby prohibiting well, discharges orbyissuingpermits for such discharges withappropriate-permit terms andconditions.

[Comment: States which are authorized toadminister the NPDESpermlprogram undersection 402 of CWA are encouraged, to relyon existing statutory authority, to the extentpossible-, lndevelbpinga StateUIC programunder section.1422 of SDWA. Section402(b)(1)(DJ),of CWA requires that NPDESStates have the authority "to Issue permitswh.ck.. control the-disposal of pollutantsinto wells." In manyinstances, therefore, INPDES States will have existing statutoryauthority-toregulate weltdisposatwhljrhsatisfiesi therequirements, of thm UICprogram. Note, however. that CWA excludescertaintypes of well injections from thedefinition of"pollutant2' If the State'astatutory authority contains a similarexclhsior tt'mayneed'to brmodified toqualify or UICprogram approva.1

§ 123.75- InspectlonsmonltorIngentryandreporting-

Any State NPDESpermitprogranshall provideadequate authority, toinspect., monitor, enter, and require.

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reports to at least the same extent asrequired in section 308 of CWA.§ 123.76 Receipt and use of Federalinformation.

Upon receiving EPA approval, theState agency administering a permitprogram shall be sent any relevantinformation which was collected by'EPA. The Memorandum of Agreementunder § 123.6 shall provide for thefollowing, in such manner as the StateDirector and the Regional Administratorshall agree:

(a) Prompt transmission to the StateDirector from-the RegionalAdministrator of copies of any pindingpermit applications or any otherrelevant information collected beforethe approval of the State permit programand not'already in the possession of theState Director. Where existing permitsare transferred to the State Director(e.g., for purposes of compliancemonitoring, enforcement or reissuance),relevant information includes supportfiles for permit issuance, compliancereports and records of enforcementactions.

(b) Procedures to ensure that the StateDiredtor will not issue a permit on thebasis of any application received fromthe Regional Administrator which theRegional Administrator identifies asincomplete or otherwise deficient untilthe State Director receives informationsufficient to correct the deficiency.§ 123.77 Transmission of Information toEPA.

(a) Each State agency administering apermit program shall transmit to theRegional Administrator copies of permitprogram forms and any other relevantinformation to the extent and in themanner agreed to by the State Directorand the Regional Administrator in theMemorandum of Agreement and notinconsistent with this Part. TheMemorandum of Agreement shallprovide for the following:

(1) Prompt transmission to theRegional Administrator of a copy of anycomplete permit applications receivedby the State Director,

(2] Prompt transmission to theRegional Administrator of notice ofevery action taken by the State agencyrelated to the consideration of anypermit application, including a copy ofeach proposed or draft permit and anyterms, conditions, requirements, ordocuments which are related to theproposed or draft permit or which affectthe authorization of the proposedpermit. For proposed permits the Stateprogram shall provide a period of time(up to 90 days) in which the Regional

Administrator or, where appropriate, theEPA Deputy Assistant Administrator forWater Enforcement (see § 122.73(q)],may comment upon, object to, or makerecommendations with respect to theproposed permit. A copy of anycomment, objection or recommendationshall be sent to the permit applicant bythe Regional Administrator. In the caseof general permits, EPA shall have 90days to comment upon, object to ormake recommendations with respect tothe proposed permit. -

[Comment. Normally EPA review time Issubstantially less than 90 days. However,EPA reserves the right to take a full 90 daysto supply specific grounds for objectionwhere a general objection Is filed within thereview period of the Memorandum ofAgreement.]

(3) Transmission to the RegionalAdministrator of a copy of every issuedpermit following issuance, along withany and all terms, conditions,requirements, or documents which arerelated to or affect the authorization ofthe permit

(b) The State program shall providefor transmission by the State Director toEPA of-

(1) Notices from publicly ownedtreatment works under § 122.68 and 40CFR Part 403, upon request of theRegional Administrator,

(2) A copy of any significantcomments presented in writing pursuantto the public notice and a summary ofany significant comments presented atany hearing on any draft permit if:

(i) The Regional Administratorrequests this information; or

(ii) The proposed permit containsrequirements significantly different fromthose contained in the tentativedetermination and draft permit; or

(ill) Significant comments adverse tothe tentative determination and draftpermit have been presented at thehearing or in writing pursuant to thepublic notice; and

(3) A quarterly noncompliance reportin accordance with § 122.72.

Cc) Within the time period agreedupon in the Memorandum of Agreement,(or 90 days in the case of proposedgeneral permits), the RegionalAdministrator (or, where appropriate,the EPA Deputy Assistant Administratorfor Water Enforcement) pursuant to theright to object provided In CWA and§ 123.78, may comment upon, object to,or make recommendations on anyproposed permit.. (d) The Regional Administrator may,by agreement with the State Director inthe-Memorandum of Agreement (see§ 123.72) waive the right to review,object to, or comment upon proposed

permits for classes, types or sizes ofdischarges within any category of pointsources, including the right to receiveinformation under paragraphs (a](2) and(b)(2) of this section.

(e) Any State permit program shallkeep such records and submit to theAdministrator such information as theAdministrator may reasonably requireto ascertain whether the State programcomplies with the requirements of CWAor of this Part.

§ 123.78 Objections to proposed permits.

(a)(1) Within the period of timeprovided under the Memorandum ofAgreement, the Regional Administratorshall notify the State Director of anyobjection to issuance of a proposedpermit (except as provided insubparagraph (2) of this paragraph forproposed general permits). This -notification shall set forth in writing thegeneral nature of the objection.

(2) Within 90 days following receipt of* the proposed permit which has beenobjected to under subparagraph (1), or inthe case of general permits within 90days after receipt of the proposedgeneral permit, the RegionalAdministrator, or, in the case of generalpermits other than for separate stormsewers, the EPA Deputy AssistantAdministrator for Water Enforcementshall also set forth in writing andtransmit to the State Director

(I) A statement of the reasons for theobjection (including the section of OWAor regulations that support theobjection), and

(if) The actions that must be taken bythe State Director in order to eliminatethe objection (including the effluentlimitations and conditions which thepermit would include if it were issuedby the Regional Administrator).

[Comment- This paragraph, in effect,modifies any existing agreement betweenEPA and the State which provides less than90 days for EPA to supply the specificgrounds for an objection. However, where anagreement provides for an EPA review periodof less than 90 days, EPA must file a generalobjection. In accordance with subparagraph(a)(1) within the time specified in theagreement. This general objection will befollowed by a specific objection within the90-day statutory period. This modification tothe MOA's Is necessary since the CleanWater Act of 1977 now requires EPA toprovide detailed Information concerningacceptable permit terms and conditions. Toavoid possible confusion. MOA's should bechanged to reflect this.]

(b) The Regional Administrator mayobject to the issuance of a proposedpermit as being outside the guidelinesand requirements of CWA. This

I II I I

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Federal Register / Vol. 44, No. 11& / Thursday, June 14, 1979 / Proposed Rules

objection must be based upon- one or (clPrior tanotifying the State Directormore of the followinggrounds- of an. objectionbasedupon any of the

(1) The permit fails to apply; orto- grounds set forth in paragraph NhJ of thisensure compliance with,any applicable section. theRegional Administrator:requirement of this Part; (11 Shall. consider alldata transmittedpursuant ta § 123.77;

[Commenk, Under thp provisions of this (2):May, if the informapion provided issection, a permit not requiring-theachievement of required effluentlimitations inadequate to determine whether thebyapplicable statutory deadline& shalLbe proposed permitmeets the guidelinessubject to-objection by the-Regional andrequirements, of CWArequest theAdministrator.], IState Director to tiansmit to the

Regional Administrator the complete(2) In the case of any proposed permit record of the permit proceedings before

for which notification to the the State, or any portions of the recordAdministrator is required under section that the Regional Administrator402(b)(5} of CWA, the written determines are necessary for reviewIfrecommendations of an.affected State this requestis-made within 3odaysofhave not been accepted:by the receipt of the State submittal underpermitting State and the Regional § 123.77, it shall constitute an interimAdministrator finds the reasons.for objection to the.issuance of the permit,rejecting the recommendations are and the full period of time specified ininadequate, the Memorandum of Agreement for the

(3) The procedures followed in. Regional Administrator's.re'view shallconnection with formulation of the recommence when the.Regionalproposed permit failed in, a material Administrator has received such recordrespect tocomply with procedures or portions of the record, andrequired by CWA or by regulations (3) May, in his or her discretion, andthereunder or by the Memorandum of tothe extent feasible within the-periodAgreement; of time available under the. (4) Any findingmade by the State Memorandum of Agreement, afford to

Director in. connection, with the- every interested person, an opportunityproposed permit misinterprets CWA or to comment on the basis for an.any guidelines or regulations under objection;CWA, or misapplies them to.the facts; (d) Within 90 days of receipt by the

(5) Any provisions of the proposed State Directorof an objection by t4epermit relating tor the maintenance of RegionaLAdministrator, the State orrecords, reporting, monitoring, sampling, interstate agency or any interestedor the provision ofany-other information person may request that a public.by the permittee areinadequate, in the hearing beheld by the-Regionaljudgment of the Regional Administrator, Administrator on the objection,toassure compliance with permit Following a.request, theRegionalconditions, including effluent standards Administrator shall provide public,and limitations required by'CWA, by notice andhord: a public hearing inthe guidelines and regulations issued accordance with the procedures ofunder CWA, orbythe-proposed-permit; §§ 124.11 and 124.13 ifwarranted:by

(6) In the case of any proposed permit significantpublic interest. A hearingwith respect to which applicable shalrbe held whenever requested by theeffluent standards and: limitations under State or the interstate agency whichsections 301, 3OZ, 306, 307, 318 403: and proposed the permit405 of CWA have-not yet been _(eJ A public hearingherd. underpromulgated by the Agency; the paragraph (dj shall be conducted by anproposed permit;, ir the judgment of the EPA panel in an orderly andlexpeditiousRegional Administrator, fails to carry manner. Members of this panel shallout the provisions of CWA or of any include the Regional Administrator, the"regulations issued under CWA; Assistant Administrator for

OommenL& The provisions ofthis Enforcement, the General Counsel, orsubparagraph aply teprinon made their respectiverepresentatives.subparagraphz apply to determinations made (f11 At the-conclusion of the public

pursuaut to §125.3[c)(2) in the absence of hearing the Regional Administrator shallapplicableguidelines and tobest reafirmthe riginal objec to modifmanagement practices under section 304(e), ofthe terms o the objection, or withdrawCWA, whichmust be incorporated, into, the ojection or wthdrawpermits as'requirements under sectionsso0, the objection. and shallnotify the state306, 307, 318, 403 or 405, as the case-may be.j of this decision.

(gl Where the Regional Administrator/ (7) Issuance of the proposed permit has objected ta a proposed permit underwould in any other respect be outside this section, he or she may issue thf,the requirements of CWA, or regulations permit in accordance with Parts I1.122issued under CWA. and I24 and any other guidelines and

requirements of CWA in the followingcircumstances-

(1) If no public hearingis held underparagraph (d)and the State does notresubmit a permit revised to meet theRegional Administrator's objectionwithin.90 days of receipt of theobjection; or

(21 If a publia hearingis held underparagraph (dl and the State does not

-resubmita permitrevisedto meet theRegional Administrator's objection ormodified objection within 30 days of thedate of the Regional Administrator'snotification under paragraph (1) of thissection.'[Comment: Where the time set out In this

paragraph expireswithouL acceptable Stateactionexclusive authority to issue the permitpassea to.EPA.1

(hl In the case of proposed generalpermits fordischarges otherthan fromseparate storm sewers substitute "EPADeputy AssistantAdministrator forWater Enforcement" for "RegionalAdministrator" wheneverit appears Inparagraphs (h). (c), (d). (f), and (g).

§ 123.79 Prohibition.Any State permit program shall,

provide thatno permit shall be issuedwhen the Regional Administrator hasobjected in.writing under-section 402(d)of CWA.

§'12.80- Compliance evaluation programs.In addition to the requirements of

§ 123.9, State compliance evaluationprograms shall:

(a) Have procedures and ability for:(11-Themaintenance of a

comprehensive inventory of all sourceacovered by NPDES permits and aforecast of all reporting requirements tothe State agency

(21lnitial screening (i.e.. pre-enfoicement evaluation) of all permit orgrant-related compliance information toidentify violations and to establish: thepriority for further substantive technicalevaluation;

(3) Where warranted, a substantivetechnical evaluation following the initialscreening of all permit or grant-relatedcompliance information to determine theappropriate agency response-

(41 The maintenance of a managementinformation system which supports thecompliance evaluation activities of this,Part.

(b] Provide for inspections of thefacilities of all major dischargers (seeComment to § 122.721 at least annually.

§ 12381 Continuing planning process.Any State permit program shall have

an approved continuing planningprocess under 40 CERParts 130 and 131

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Federal Register I VoL 44, No. 116 / Thursday, June 14, 1979 / Proposed Rules

and shall assure that its approvedplanning process is at all-timesconsistent with -WA..

§ 123.82 Agency board'nembershlp.(a] Each State permit program shall

ensure thatany board or body whichapproves all or portions oTpermits shallnot include as a member any-personwho receives, or has during the previous2 years received, a significant portion ofincome 'directly or indirectly rom permitholders or-applicants for a permit.

(b).For the purposes of this section:(1] "Board or body" includes any

individual, including the Director, whohas or shares authority to approve all orportions of permits either inthe firstinstance, as modified orxeissued, or onappeal.

(2] 'Significantportion of income"shall mean IOpercent or more ofgrosspersonal income for a calendaryear,except that it shall mean 50 percent ormore of gross personal income for acalendar yearif the recipient is over 60years of age and is receiving thatportion underTefirement, pension,.orsimilar arrangement. _

(3] Permit holders or applicants.for apermit" shall-notinclude anydepartment or agency of a Stategovernment, such as a Department ofParks or a Department ofFish andWildlife.

(4) "Income" includes retrementbenefits, consultant fees, and stockdividends. --

(c] For thepurposes of this section,income is not received 4'directly orindirectly from permit holders orapplicants fore permit" where itisderived from mutual fund payments, orfrom other diversified investments overwhich therecipient does not'know theidentityof the primary sources ofincome.

§ 123.83 Approval process.(al After determining that a State

program submission is complete, EPAshall publish -notice of the State'sapplication-in the Federal Register, andin enough of the largest newspapers inthe State to attract statewide attention,and shall mail notice to persons knownto be interested in such matters,including al people on appropriate-Stateand-EPA mailing lists and allpermitholders and applicants within the State.This notice shall:

i) Provide a-commentperiod-of notless than 45 days during whichinterested members -of the public mayexpress their views on the Stateprogram;

-(2) Provide for ajpublic hearing withinthe State to be held no less -than 30 days

afternotice ispublished in the FederalRegister;,

f3) Indicate he cost of-obtaining acopy of the State's submission;

(4) Indicate where and when theState's submission may be reviewed bythe public;

[5) Indicate whommn interestedmember of the-public should-contactwith any questions; and

(6) Briefly outline the fundamentalaspecfs of theState's proposed program,and the process for EPAreview anddecision.

(b) Within 90 days of the receiptof acomplete program submission under§ 123.3 the Administrator shall approve-or disapprove the program based on therequirements of this Part-andof CWAand taking into consideration allcomments received. A responsivenesssummary shall be prepared by theRegional Office which identifies thepublic participation activitiesconducted, describes the matterspresented to the public, summarizessignificant comments received and-explains the Agency's response to thesecomments.

(c) If the Administrator approves theState's program he or she shall notifythe State and publislh notice in theFederalReister.EPA-shallUsuspend theissuance of-permits as of the date ofprogram approval.

(d) If the Administrator disapprovesthe State program he or she shall notifythe Stateof the reasons for thedisapproval andof any revisions ormodifications to the State programwhich are necessary to obtain approval.

Subpart E-Addltlonal lequlrementsfor State Programs Under Section 404of theClean Water act

§123.91 Pmpose and scope.(a) This Subpart describes additional

requirements, -both, procedural andsubstantive, for State permit programsunders ection404of the Clean WaterAct (regulating discharges of dredged orfill material). Since EPA does notoperate the section 404 program, there isno Subpart E to Part 122. Additionalpermit application and processingrequirements applicable to Stateprograms are set out in this Subpart.

(b) These regulations are promulgatedunder the authority of sections 101(e)and 501[a) of CWA.

[c) No partial section 404 programswill be approved by EPA. Except asprovided in J 123.107. the State programmust regulate all discharges of dredgedor fill material into waters of the UnitedStates (as delineated in CWA section4041)(1)) within the State's jurisdiction.

(d) After program approval theSecretary shall retain jurisdiction overany permits (including general permits)which he orshe has issued unlessarrangements have been made with theState in the Memorandum of AgreementUnder § 123.93 for the-Siate to assumeresponsibility for these permits.Retention of jurisdiction shall includethe processing of anypermit appeals, ormodificationrequests;ihe conduct ofinspections, and the receipt and reviewof self-monitoring reports. If anypermitappeal or modification request is notfinally resolved when the Federallyissued permit expires, the Secretary,upon agreement with the State, may,continue to retain jurisdiction until thematter Is resolved.

[Comment. Under section 404(h]5) ofCWA. States are entitled, after programapproval, to administer and enforce generalpermits issuedby theSecretary. Ifthe-Statechooses not to administer and enforce thesepermits, the Secretary retains jurisdictionuntil they expire.]

(e] In case of any inconsistencybetween this Subpart and Subpart A,Part 122 or Part 124, this Subpartiscontrolling.

{f] Compliance with a permit issuedby a State approved under this Partduring its term, including any activityconducted in compliance with ageneralpermit, constitutes compliance for:purposes of sections 309 and 505 ofCWA, with sections 310, 307 and403,except for any standard imposed undersection 307(a)(5) of CWA.

§ 123.92 Memorandum of Agreement.(a) In addition to the requirements of1M 23.6, the Memorandum of Agreement

between the regional Administrator andthe State Director shall contain.provisions on the scope of the waiversavailable under sections 404(k) or (I) ofCWA. The Regional Administrator andthe State, after consultation with theCorps of Englneers, the U.S. Fish andWildlife Service, and the NationalMarine Fisheries Service. may agree towaive Federal review of certain "classesor categories" of permits. No waivermay be granted for the followingactivities:

(1] Discharges which may affect thewaters of a State other than one inwhich the discharge originates; -

(2) Major dischargers,[Commenf.-EPA will formulate guidance

defining what discharges are "major" underthis paregraph. Comments are welcome.]

(3) Discharges into criticalareasincluding fish and wildlife sanctuaries,National and historical monuments,wilderness areas andpreserves,

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National and State parks and thedesignated critical habitat of threatenedor endangered species.

(Comment. EPA Is considering adding tothis list of critical areas. Comments arewelcome.]

(4) Proposed general permits; or(5) Discharges known or suspected to

contain toxic pollutants in toxicamounts or hazardous substances inreportable quantities.

(b) Whenever a waiver is grantedunder paragraph (a), the Memorandumof Agreement shall contain a statementthat the Regional Administrator retainsthe right to terminate the waiver, inwhole or in part, at any time by sendingthe Director written notice oftermination. Notwithstanding anywaiver, the State shall continue tosupply EPA with copies of permitapplications, public notices and finalpermits when requested by EPA.Nothing in this Section shall diminishthe Administrator's authority undersection 404(c) or the State's obligationunder section 404(h)(1)(F) of CWA.

§ 123.93 Memorandum of Agreement withthe Secretary.

In the case of section 404 programsthe State shall enter into aMemorandum of Agreement with theSecretary, which shall include:

(a) An identification of those watersin which the Secretary will suspend theissuance of section 404 permits(pursuant to sections 404(g)(1) and (h)(2)of CWA) upon approval of the Stateprogram by the Administrator;,

(b) Where an agreement is reached,procedures for joint processing ofpermits for activities which require botha section 404 permit from the State anda section 9 or 10 permit from theSecretary under the Rivers and HarborsAct of 1899.

(c) An identification of thoseindividual and general permits, if any,issued by the Secretary, the terms andconditions of which the State intends toadminister and enforce (includinginspection, monitoring, and surveillanceresponsibilities) upon receiving approvalof its program and a plan fortransferring responsibility for thesepermits to the State.

[Comment. In many instances States willlack the authority to directly administerpermits issued by the Federal government.However, procedures may be established totransfer responsibility for these permits. Forexample, a State could, in one action, issuepermits Identical to the outstanding Federalpermits which could be simultaneouslyrevoked. An individual Corps' permit may betransferred to a State only where the Statehas the authority to administer and enforce

all terms and conditions of the Federalpermit.]

(d) Procedures whereby the Secretarywill transfer to the State pending section404 permit applications and otherrelevant information, as specified in§-123.97.

(e) A provision stating that the Stateshall not issue any section 404 permit fora discharge which, in the judgment of'the Secretary after consultation with theSecretary of the Department in whichthe Coast Guard is operating, wouldsubstantially impair anchorage ornavigation.

(f) Those "classes or categories", ifany, of proposed State permits for whichthe-Secretary waives the right to review,

(g) Other matters not inconsistentwith this Part that the Secretary andtheState deem appropriate.

[Comment.-Where an approved Statepermit program includes coverage of thosetraditionally navigable waters in which onlythe Secretary may issue section 404 permits(by virtue of section 404(g](1) of CWA), theState is strongly encouraged to establish inthis MOA, procedures for joint processing ofFederal and State permits, including jointpublic notices and public hearings.]

include the authority to designate areaswhich will not be available for disposal sitespecification, as described in 40 CFR 230.7(d),Nothing in subparagraph (b)(2) is intended tolimit the Administrator's authority to takesimilar actions under section 404(c) of CWA.J

§ 123.95. Program description.In addition to the requirements of

§ 123.4, the State's program descriptionshall:

(a) Designate one agency to beresponsible for issuing section 404permits.

(b) Describe how the State section 404agency will interact with other State andlocal agencies.

(c) Describe the categories and sizesof discharges of dredged or fill materialfor which the State Director proposes toissue permits. For each category, thefollowing information shall be given:

(1) An estimate of the number offacilities within each catetgory whichmust file for a permit; and

(2) An estimate of the number andpercent of activities within each,category for which the State has alreadyissued a State permit or equivalentdocument regulating the discharge.

(d) Describe the specific best§ 123.94 Attorney General's Statement. management practices requirements

In addition to the requirements of proposed to be used to satisfy the§ 123.5, the State Attorney General's exemption provisions of sectionStatement shall contain: 404(fl(1)(E) of CWA for construction or

(a) An analysis of the State's law maintenance of farm roads, forest roadprohibiting the taking of private or temporary roads for moving miningproperty without just compensation, equipment in accordance with § 123.10including any applicable judicial (e) A description of how the State wllinterpretations, and assurance that this coordinate'its enforcement strategy witwill not adversely affect the successful that of the Corps of Engineers and EPA.implementation of the State's regulation § 123.96 Inspections, monitoring, entryof the discharge ofdredged or fill and reporting.material. Any State permit program shall

(b) A certification that upon program provide adequate authority to inspect,approval, the State will have authority monitor, enter, and require reports to atto prohibit, deny,,restrict, or withdraw least the same extent as required Inthe specification of disposal sites for the section 308 of CWA.dischpige bf dredged or fill materialany defined area of those waters for - 123.97 Receipt and use of Federalwhich the State receives section 404 Information.authority, including: Upon receiving EPA approval, the

(1) Authority to apply the criteria State agency administering a permitcontained in 40 CFR Part 230; program shall be sent any relevant

(2) Authority (similar to EPA's information which was collected by theauthority under section 404(c)) to Secretary. The Memorandum ofprohibit the discharge of dredged or fill Agreement under'§ 123.93 shall providematerial into areas where such for the following, in such manner as thedischarges would have an unacceptable State Director and the Secretary shalladverse effect on municipal water agree:supplies, shellfish beds and fishery (a) Prompt transmission to the Stateareas (including spawning and breeding Director from the Secretary of copies ofareas), wildlife or recreational areas; any pending permit applications or any

[Comment- The above authority to prohibit, other relevant information collecteddeny, restrict, or withdraw the specification -before the approval of the State permitof disposal sites should not be limited to program and not already in thesituations where an application for a 404 possession of the State Director. Wherepermit has been made, but should also existing permits are transferred to the

11,

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Federal Register I VoL 44, No. 116 / Thursday, June 14, 1979 1 Proposed Rules

State Director (e.g, for purp oses ofcompliance monitoring, enforcement orreissuance), relevant informationincludes support files for permitissuance, compliance reports andrecords of enforcementactions.

bJ Procedures to ensure that the StateDirector willnot issue a permit-on thebasis of anyapplication received fromthe Secretary which the Secretary hasidentified as incomplete or otherwisedeficient until the State Directorreceives information sufficient to correctthe deficiency.

§ 123.98 Transmlsslonof-lnformattontoEPA.

(a) Each State agency administering asection 404 permit program shalltransmit bycertifledmail to theRegional Administrator,.the -Corps ofEngineers, the US. Fish-and WildlifeService, and-the National MarineFisheries Service copies of-permitprograms forms and any other relevantinformation tothe extent and in themanner agreed to by-the Director andthe Regional Administrator in theMemorandum of.Agreementander§ 123.6. The Memorandum of Agreementshall provide for the following:

(1) Prompt transmission to theRegional Administrator of a copy of anycomplete permit applications receivedby the State Director. Where State lawrequires preparation of anenvironmental impactstatement (EIS) orsimilar process, such EIS or otherdocument shall acompany the permitapplication when transmitted to theRegional Administrator.

12] Prompt transmission to theRegionalAdministrator-of notice.ofevery action taken by the State agencyrelated to the consideration-of anypermit application, including a copy ofeach proposed permit and any terms,conditions, requirements, or documentswhich are related to the proposed permitor which affect the authorization of teproposed permit The State programshallprovide: -

(iJ A period of-time.-up to 90 days) inwhich the Regional Administrator maycomment upon, object to, or makerecommendations with respect to thepermit application or the proposedpermit A copy of any comment,objection or recommendation shall besent to the permit applicant by theRegional Administrator.

[Comme_,ntn.Exept asp rovided inparagraph ic),-EPA reviewis usuallyrestricted to permit applications; however, insome cases the Agencymay request theState-toprepare a proposed perfit.]

(ii) Procedures for actionby the Stateagency following a-written objecionby

the Regional Administratorundersection 4040) of CWA.

(iii) For the transmission to theRegional Administrator of a copy ofevery issued permit following issuance,along withany and all terms, conditions,requirements, or-documents which arerelated to or affect the authorization ofthe permit.

(b) Withinthe time period agreed-upon the Memorandum of Agreement,the Regional Administrator, pursuant tothe right to objectprovided inCWA and§ 123.99, may comment upon, object to,or make recommendations with respectto any permit application or proposedpermit. The Regional Administratorshall notify the State Director of his orher intent-to comment upon or object toa permit application or a proposedpermit within 30 days of receipt,however, if the Stateproposeslo issue apermit which differs from that describedin the permit application such approvedpermit shall be transmitted for review Inaccordance with this sectionand§§ 123.99 and 123.110. The RegionalAdministrator maynotify the State thatthere is no comment but reserve theright to object based on any newinformation brought out by the publicduring the comment period or at ahearing.

(c)(1) For discharges listed in§ 123.92(a), State section 404 programsshall comply with the draft permitrequirements of J § 124.6 (a) and (b),124.8 and 124.9, as provided in § 123.8.

(2) For discharges not listedin§ 123.921a), EPAand public review shallbe based on the permit applicationunless EPA requests the State to preparea proposed permit under § 123.99(c)(2).For these-discharges States need notcomply with § § 124.6 1a) and(b), 124.8and 124.9.

§ 123.99 Objections lopermlts.(a)[1) Within the periodof time

provided underthe Memorandum ofAgreement, the Regional Administratorshall notify the State Director of anyobjection to issuance of a permit. Thisnotification shall set forth in writing thegeneral nature -of the objection.

(2) Within 90 days following receipt ofa permit application or the proposedpermit which has been objected toundersubparagraph (1), the RegionalAdministratorshall also set forth inwriting and transmit to the StateDirector:

(i) A statementof the reason(s) for theobjection (including thesection of CWAorregulations that support theobjection), and

(ii) The actions thatmustbe taken bytheStateDirector inaorder to eliminate

the objection (including the conditionswhich the permit would include if itwere issued by the RegionalAdministrator).

(3) When the State Director hasreceived an objection to a permitapplication or proposed permit underthis sectionbut has taken the stepsrequired by the Regiopal Administratorto eliminate the objection, the revisedpermit shall be transmitted to theRegional Administrator for review. If nofurther objection is received from the -Regional Administrator -within 15 daysof the receipt of the revised permit, theDirector may issue the permit.

1b) Any objection under this sectionrmust be based upon one or more of thefollowing grounds:

(1) The permit fails to apply, or toensure compliance with, any applicablerequirement of this Part;

12) In the case of any proposed permitfor which notification to theAdministrator is required under section404(h)(1](E) of CWA, the writtenrecommendations of an affectedStatehave not been acceitedby thepermittingState and the RegionalAdministrator finds the reasons forrejecting the recommendations areinadequate;

(3) The procedures followed inconnection with formulations of theproposed permit failed in a materialrespect to comply with proceduresrequired by CWA. regulations and -

guidelines thereunder or by theMemorandum of Agreement;

(4) Any finding made by the StateDirector in connection with theproposed permit misinterprets OWA orany guidelines or regulations underCWA, or misapplies them to the facts.

(5) Any provisions of the permitapplication or the proposed permitrelating to the maintenance of records,Teporting, monitoring, sampling, or theprovision of any other information bythe permittee are inadequate, in thejudgment of the Regional Administratorto assure compliance with permitconditions, including water qualitystandards, required by CWA, by Part230 guidelines issued-under CWA. -orbythe proposed permit;

(6) Inthe case of any proposed permitwith respect to which applicablestandards and limitations have not yetbeen promulgated by the Agency, theproposed permit in the judgment of theRegionalAdministrator, fails to carryout the provisionsof4WA, or anyregulations issued-under CWA;

(7) The information contained in thepermit application is insufficient tojudge compliance.with40 CFR Part 230;or

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(8) Issuance of a permit would in anyother respect be outside therequirements of section 404 of CWA, orregulations implementing section 404 ofCWA.

(c) Prior to notifying the State Directorof an objection based upon any of thegrounds set forth in paragrdph (b) of thissection, the Regional Administrator.

(1) Shall consider all data transmittedpursuant to § § 123.98 and 123.110.

(2) Shall, if the information providedis inadequate to determine whether thepermit application or proposed permitmeets the guidelines and requirementsof CWA, request the State Director totransmit to the Regional Administratorthe complete record of the permitproceedings before the State, or anyportions of the record or otherinformation that the RegionalAdministrator determines are necessaryfor review. This request shall be madewithin thirty days of receipt of the Statesubmittal under § 123.98. It shallconstitute an interim objection to theissuance of the permit, and the fullperiod of time specified in theMemorandum of Agreement for theRegional Administrator's review shallrecommence when the RegionalAdministrator hds received such recordor portions. Alternatively, the RegionalAdministrator, within thirty days ofreceipt may request the State Director tosupplement the application withspecified new information (which mayinclude a proposed permit or otherinformation) and resubmit suchamended application to EPA and theother Federal agencies under § 123.98.Such amended application (and/orproposed permit) shall be considered anew application for the purposes ofFederal and public, review procedures.

[Comment: It is anticipated that proposedpermits will be requested only in exceptionaland/or complex cases.]

(3) May, in his or her discretion, andto the extent feasible within the periodof time available under theMemorandum of Agreement, afford toevery interested person an opportunityto comment on the basis for anobjection;

(d) Within .0 days of receipt by theState Director of an objection by theRegional Administrator, the State or anyinterested person may request that apublic hearing be held by the RegionalAdministrator on the objection. -Following a request, the RegionalAdministrator shall provide publicnotice and hold a public hearing inaccordance with the procedures of§ § 124.12 and 124.13 if warranted bysignificant public interest. A hearing

shall be held whenever requested by theState-which proposed the permit.

(e) A public hearing held underparagraph (d) shall be conducted by anEPA panel in an orderly and expeditiousmanner. Members of this panel shallinclude the Regional Administrator, theAssistant Administrator forEnforcement, the General Counsel, theAssistant Administrator for Water andWaste Management, or their respectiverepresentatives.

(f) At the conclusion of the publichearing the Regional Administrator shallreaffirm the-original objection, modifythe terms of the objection, or withdrawthe objection, and shall notify the Stateof this decision.

(g) Where the Regional Administratorhas objected to a proposed permit underthis section, the Secretary may issue thepermit in accordance with the guidelinesand regulations of CWA in the followingcircumstances:

(1) If no public hearing is held underpjaragraph (d) and the State does notresubmit a permit revised to meet theRegional Administrator's objectionwithin 90 days of receipt of theobjection; or

(2) If a public hearing is held underparagraph (d) and the State does notresubmit a permit revised to meet theRegional Administrator's objection ormodified-objection within 30 days of thedate of the Regional Administrator'snotification under paragraph (f) of thissection.

(h) Fo? purposes of this section anydraft permit prepared under § 124.6 shallbe considered a proposed permit.

§ 123.100 Prohibitions.No permit shall be issued by the

Director in the following circumstances:(a) Where the terms or conditions of

the permit do not comply with therequirements of CWA, or regulationsand guidelines implementing CWA,including the section 404(b)(1)environmental guidelines. (40 CFR Part230).

(b, Where the Regional Administratorhas objected to issuance of.the permitunder section 4040) of CWA and wheresuch objection has not be6n satisfied orresolved.

(c) Where, in the judgment of theSecretary of the Army acting through theChief of Engineers, anchorage andnavigation in or on any of the waters'ofthe United States would be substantiallyimpaired by the discharge.

(d) Where the proposed dischargewould be into a defined area for whichspecification as a disposal site has beenprohibited, restricted, denied, orwithdrawn by the Administrator under

section'404(c) of CWA, or by the StateDirector, and where such dischargewould fail to comply with the Director'sactions under those authorities.

§123.101 Enforcement authority.In addition to the requirements of

§ 123.10, State section 404 programsshall include procedures whichonablethe State Director immediately andeffectively to halt or eliminate anyunauthorized discharges of dredged orfill material, including the authority todo each of the following:

(a) Issue a cease and desist or aninterim protective order to any personresponsible for, or involved in an'unauthorized discharge.

(b) Sue in the appropriate State courtto immediately restrain any personresponsible for, or involved in anunauthorized discharge, and

(c) Immediately notify the RegionalAdministrator by telephone, and bysubsequent written confirmation, of anyactual or threatened endangerment tothe public health and welfare resultingfrom any discharge of dredged or fillmaterial.

§ 123.102 Continuing planning process.Any State permit program shall have

an approved continuing planningprocess under 40 CFR Parts 130 and 131and shall assure that its approvedplanning process is at all timesconsistent with CWA.

§ 123.103 Agency board membership.(a) Each State permit program shall

ensure that any board or body whichapproves all or portions of permits shallnot include as a member any personwho receives, or has during the previous2 years received, a significant portion ofincome directly or indirectly from permitholders or applicants for a permit.

(b) For the purposes of this section:(1) "Board or body" includes any

individual, including the Director, whohas or shares authority to approve all orportions of permits either in the firstinstance, as modified or reissued, or anappeal.

(2) "Significant portion of income"shall mean 10 percent or more of grosspersonal income for a calendar year,except that it shall mean 50 percent ormore of gross personal income for acalendar year if the recipient Is over 60years of age and is receiving thatportion under retirement, pension, orsimilar arrangement.

(3) "Permit holders or applicants for apermit" shall not include anydepartment or agency of a Stategovernment, such ad a Department of

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Federal Register / Vol. 44, No. 116 / Thursday, June 14, 1979 1 Proposed Rules

Parks or a Department of Fish andwildlife.

(4) "Income" includes retirementbenefits, consultant fees, and stockdividends.

(c) For the purposes of this section,income is not received "directly orindirectly from permit holders orapplicants for a permit" where it isderived from mutual fund payments, orfrom other diversified investmentswhich the recipient does not know theidentity of the primary sources ofincome.

§ 123.104 Approval process.(a) Within 10 days of receipt of a State

section 404 program submission under§ 123.3 of this Part, the Administratorshall provide copies of the State'ssubmission to the Corps of Engineers, -the U.S. Fish and Wildlife Service, andthe National Marine Fisheries Service.

(b) After determining that a Stateprogram submission is complete, EPAshall publish notice of the State'sapplication in the Federal Register, andin enough of the largest newspapers inthe State to attract Statewide attention,and shall mail notice to persons knownto.beinterested in such matters.

-including all people on appropriateState, EPA and Corps of Engineersmailing lists and all permit holders andapplicants within the State. This noticeshall:

(1) Provide a comment period of notless than 45 days during whichinterested members of the public mayexpress their views on the Stateprogram;

(2) Provide for a public hearing withinthe State to be held no less than 30 daysafter notice is published in the FederalRegister,

(3) Indicate the cost of obtaining acopy of the State's submission;

(4) Indicate where and when theState's submission may be reviewed bythe public;

(5) Indicate whom an interestedmember of the public should contactwith any questions; and

(6) Briefly outline the fundamentalaspects of the State's proposed program,and the process for EPA review anddecision.

(c] Within 120 days of the receipt of acomplete program submission under§ 123.3, the Administrator shall approveor disapprove the program based on therequirements of this Part and of CWAand taking into consideration all

--comments received. A responsivenesssummary shall be prepared by theRegional Office which identifies thepublic participation activitiesconducted, describes the matters

presented to the public, summarizessignificant comments received andexplains the Agency's response to thesecomments.

(d) If the Administrator approves theState's section 404 program he or sheshall notify the State and the Secretaryand publish notice in the FederalRegister. The Secretary shall suspendthe issuance of section 404 permits bythe Corps of Engineers within the State,except for those waters specified insection 404(g) (1) of CWA as Identified inthe Memorandum of Agreementbetween the State and the Secretary(see § 123.93).

(e) If the Administrator disapprovesthe State program he or she shall notifythe State of the reasons for thedisapproval and of any revisions ormodifications to the State programwhich are necessary to obtain approval.

§ 123.105 Applicable conditions andrequirements.

In addition to the requirements of§ 122.11, each permit issued by the StateDirector shall provide for and ensure:

(a) That the discharge will beconducted in compliance with thesection 404(b)(1) environmentalguidelines (40 CFR Part 230), includingconditions to ensure that the dischargewill be conducted in a manner whichminimizes adverse impact upon thephysical, chemical, and biologicalintegrity of the waters of the UnitedStates.

(b) That if a toxic effluent standard orprohibition for dredged material(including any schedule of compliancespecified in such effluent standard orprohibition) is established under section307(a) of CWA for a toxic pollutantpresent in the permittee's discharge andthat standard op prohibition is morestringent than any limitation upon suchpollutant in the permit, the StateDirector shall modify the permit toconform to the toxic effluent standard orprohibition and so notify the permittee.

(c) That the permit (other than generalpermits) shall include a detailed sketch,specifying location and boundaries ofthe proposed discharge site ncluding alimitation of the quantity and type ofdredged or fill material which may bedischarged at that site. In open watersites, a delination of the disposal siteshall be included.

(d) The State Director shallincorporate approved BMPs developedby a Statewide CWA section208(b)(4)(B) regulatory agency intopermits as provided in the agreementdescribed in § 123.110(a)(1). WhereBMP's were developed for application Ina specific geographic area they shall

only be incorporated into permits forthat area. Where BMP's are lessstringent than the conditions which arenecessary to assure compliance with the40 CFR Part 230, the BMP's shall besupplemented with additional and/ormore stringent conditions incorporatedinto the 404 permit as necessary.

§ 123.106 General permts.(a) General permits may be issued for

activities which are similar in nature,will cause only minimal adverseenvironmental effects when performedseparately, and will have only minimalcumulative adverse affects on theenvironment. If several activities aregrouped in one general permit theirsimilarity should be established whenthe general permit is proposed.

(b) In addition to the conditions in§ 122.11 each general permit issued bythe State Director shall include, whereapplicable, the following conditions:

(1) Conditions specified in § 123.105(a) and (b);

(2) The maximum quantity and type ofmaterial that may be discharged and themaximum extent that an area may bemodified by a single operation:

(3) A specification of the activitiescoveredby the general permit withemphasis on unique factors, if present;

(4) Geographic area to which thegeneral permit applies, including a cleardescription of the type(s) of water(s)(with specific references to wetlands) inwhich the activity(ies) are permitted;

(5) BMP's necessary to assure thatenvironmental effects will be minimal;

(6) limitations on construction of anystructures including the followingfactors: -

(I) Size and type of structure(s)permitted;

(ii) Specifications for conservationand environmental protection, including,to the maximum extent practicable,minimizing impairments toihebiological, chemical and physicalintegrity of the waters of the UnitedStates;

(iii) Site restoration after the structureis completed.

(iv] Depth of fill permitted.(7) Any other conditions deemed

necessary by the State Director.Cc) The State Director shall require

advance notification by persons oragencies intending to discharge dredgedor fill material under a general permit,including the name of the discharger, thelocation, nature and duration of thedischarge. Advance notification isrequired unless the RegionalAdministrator concurs in writing that itis unnecessary.

| I I

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[Commeab EPA envisions that theInformation required can be submitted on apostcard. Submission of information shouldbe construed as a notification not as anapplication for a permit. This information faybe used to monitor the individual andcumulative environmental effects of the-activities authorized by the general permitand provide a basis for determining whetherIts modification or termination is necessary.]

(d) After a general permit has beenissued, activities falling within the scopeof the permit do not require anindividual permit unless the StateDirector determines, on a case-by-casebasis, that the concerns of the aquaticenvironment as expressed in 40 CFRPart 230 indicate the need for anindividual permit.

(e) In addition to grounds in §§ 122.9and 129.10, the State Directormaymodify, revoke and reissue or terminatea general permit on the followinggrounds:

(1) If he determines that the effects ofthe activities authorized by it are havingor will have a more than minimalindividual or cumulative adverse affecton the environment; or

(2) If he determines that the permittedactivities are more appropriatelypermitted by individual permits.

(f) The State Director shall providepublic notice of amendment ortermination of a general permit.

(g) The public notice for proposedgeneral permits, including proposedamendments to general permits, shallinclude:

(1) Applicable statutory authority orregulations;

(2) A copy of the proposed permit,'describing the activities and waters tobe covered;

(3) A description of the estimatedenvironmental effects of the permit;,

(4) Name and water quality standardsclassification, if applicable, of thereceiving waters into which thedischarge is proposed, and a generaldescription and location of the site ofeach proposed discharge;

(5) Any other available informationwhich pay assist the public inevaluating the likely environmentalaffects of the proposed activity, if any,upon the integrity of the receivingwaters;

(6) Address and telephone number ofthe place where interested persons mayobtain further information;

(7) Name and address of person towhom comments should be addressed,deadline for submission of comments;,and

(8) A statement of the right to requesta public hearing, and that a hearing will

be held if there is significant publicinterest.

§ 123.107 Activities not requiring permits.(a) Exceptis specified in paragraphs

(b) and (c) of this section, any dischargeof dredged or fill material that mayresult from any of the followingactivities-is not prohibited by orotherwise subject to regulation underthis section:

(1) Normal farming, silviculture andranching activities-such.as plowing,seeding, cultivating, minor drainage, andharvesting for the production of food,fiber, and forest products, or upland soiland water conservation practices.

The construction of any canal, ditch,dike or other waterway or structurewhich drains or otherwise significantlymodifies a stream, lake, swamp, marsh,bay or any other wetland or aquaticarea lying within the waters of theUnited.States is not considered minordrainage, and any discharge of dredgedor fill material into the waters of theUnited States incidental to theconstruction of any such structure orwaterway requires a permit.

The discharge of dredged or fillmaterial incidental to the managementor rotation of crops on lands in currentactive use for farming is a normalfarming practice not requiring a permitHowever. a permit is required for anydischarge of dredged or fill materialmade for the purpose of convertingwaters of the United States to farming,forestry, or ranching uses (e.g., dischargeof dredged or fill material to erect adike, dam, levee or other structure todivert, reduce or eliminate the flow ofwater into or through a wetland.

(2) maintenance, including emergencyreconstruction of recently damagedparts of currently serviceable structuressuch as dikes, dams, levees, grions,riprap, breakwaters, causeways, bridgeabutments or approaches, andtransportation structures. Thisexemption does not includemaintenance that changes the character,scope, or size specific to the originalfilldesign. Emergency reconstruction mustoccur within a reasonable period of timeafter damage occurs in order to qualifyfor this exemption.

(3) Construction or maintenance offarm or stockponds or irrigation ditches,or the maintenance of drainage ditches,This particular provision does not applyto the construction of drainage ditches.Any discharge of dredged or fill materialincidental to the modification of astream bank or.other shoreline areawithin a water of the United States toconnect any such water to a waterintake structure or water discharge

structure shall be required to have asection 404 permit.

(4) Construction of temporarysedimentation basins on a constructionsite which does not include placement offill material into waters of the United.States. The term "construction site"refers to any site involving the erectionof buildings, roads, and other discretestructures and the installation of supportfacilities necessary for construction andutilization of such structures. The te"malso includes any other land areaswhich involve land-disturbing andexcavation activities, Includingquarrying or other mining activities,where an increase in the runoff ofsediment is controlled through the use oftemporary sedimentation basins.

(5) Construction or maintenance offarm roads, forest roads, or temporaryroads for moving mining equipment,where such roads are constructed andmaintained, in accordance with bestmanagement practices, to assure thatflow and circulation patterns andchemical and biological characteristicsof waters of the United States are notimpaired, that the reach of the waters ofthe United States is not reduced, andthat any adverse effect on the aquaticenvironment will be otherwiseminimized. These best managementpractices which must be applied tosatisfy this provision shall include thosedetailed best management practicesdescribed in the State's approvedprogram description pursuant to therequirements of § 123.95(d), and shallalso include the following baselineprovisions:

(i) Logging in streams Is prohibited;(it) Permanent roads (for farming or

forestry activities), temporary accessroads (for mining, forestry, or farmpurposes) and skid trails (for logging)shall be held to the minimum feasiblenumber, width and total lengthconsistent with the purpose of specificfarming,, silvicultural or miningoperations;

(iI) Allroads, temporary orpermanent, shall be located sufficientlyfar from streams or other water bodies(except for portions of such roads whichmust cross water bodies) to avoidsignificant increasis in sediment runoff;

(iv) The road fill shall be bridged orculverted to prevent the restriction ofexpected high flows;

(v) The discharge shall not disrupt themigration or other movement of thosespecies of aquatic life inhabiting thewater body

(vi) Discharges into breeding andnesting areas for migratory waterfowl,spawning areas, and wetlands shall beavoided If practical alternatives exist;

-

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(vii) The discharge shall consist ofsuitable material free from toxicpollutants in-toxic amounts;

(viii) The discharge shall not take, orjeopardize the continued existance of, athreatened or endangered species asdefined under the Endangered SpeciesAct, or adversely modify or destroy thecritical habitat of such species;

(ix) The fill shall be properlymaintained during and-followingconstruction to prevent erosion andother non-point sources of pollution;

(x) Soil losses shall be held close togeological rates through carefulselection of logging and farmingmethods, and through professionalaccess route management;

(xi) A selective uneven-agedmanagement cutting method should beemployed on slopes, near streams, or inother sensitive areas unless the use ofother forest management options wouldresult in the same or less alteration ofthe chemical, physical and biologicalintegrity of affected waters, includingless sedimentation;

(xii) Vegetative disturbance shall bekept to minimum.

(xiii) Borrow material shall be takenfrom upland sources wherever feasible,and sufficient zones ofvegetationadjacent to water bodies shall be-preserved to filter out debris andsediment transported by runoff fromnearby harvest sites and to preventthermal pollution by preserving shadecover of water bodies.

(xiv) The discharge shall not occur ina component of the National Wild andScenic River System;"

(xv) Upon removal of temporaryroads, any area of the waters of theUnited States whose bottom elevationhas been altered by discharge of theroad bed fill shall be restored to itsoriginal elevation;

(xvi) The use of pesticides andherbicides shall be avoided wherepossible and shall not be used in waterbodies, including wetlands, inconjunction with road construction;

(xvii) All operators electing to qualifyfor the exemption must be familiar withand shall apply as appropriate tospecific practices, professionalmanagement methods that are availablefrom technical assistance, training andadvice provided by the U.S. ForestService, State Foresters, the SoilConservation Service, the office ofsurface mining, or by similar recognizedpublic sources of technical informationand guidance.

(6) Any activity with respect to whicha State-has an approved program undersection 208(b)(4(B) of CWA whichmeets the requirements of =

subparagraphs (B) and (C) of thatsection.

(b) If any discharge of dredged or fillmaterial resulting from the activitieslisted in paragraphs (a) (1)-{6) containsany toxic pollutant such discharge shallbe subject to any eMuent standard orprohibition established for such toxicpollutants pursuant to provisions ofsection 307 of CWA, and requires apermit under the State program.

(c) Any discharge of dredged or fillmaterial into waters of the UnitedStates, incidental to any of the activitiesidentified in paragraphs (a) (13-(6) or toany other activity must have a permit ifits purpose is to bring an area of thewaters of the United States into a use towhich it was not previously subject,where the flow or circulation of watersof United States may be impaired or thereach of such waters reduced.

[Comment- Where the proposed dischargewill result in significant discerniblealterations to flow or circulation, thepresumption is that flow or circulation maybe impaired by such alteration, and theactivity shall be required to have a section404 permIt. Any discharge which convertsany area of the waters of the United States todry land or which connects any such watersto dry land through dikes, levees or other fillsshall be deemed to thereby reduce the reachof the waters of the United States and musthave a section 404 permit For example, apermit will be required for the conversion ofa cypress swamp to some other use or theconversion of lands from silvicultural toagricultural use when a discharge of dredgedor fill materials is made Into waters of theUnited States in conjunction withconstruction of dikes, drainage ditches orother works or structures used to effect suchconversion. The reach of the waters of theUnited States shall not, however, be deemedto be reduced by a discharge which elevatesthe bottom of waters of the United Stateswithout converting it to dry land.]

(d) Federal projects which qualifyunder the criteria contained in section404(r) of CWA are exempt from Statesection 404 permit requirements.

§ 123.108 Permit app!icatlon.(a) Publicity and Preopplication

Consultation. The State Director isencouraged to establish and maintain aprogram to inform, to the extentpossible, potential applicants for permitsof the requiremefits of the State programand of the steps required to obtainpermits for activities in State regulatedwaters. As part of this program, theState Director is encouraged to includepre-application consultation to assistapplicants in understanding therequirements of 40 CFR Part 230 and infulfilling permit applicationrequirements.

(b) Application for Permit. Exceptwhere an activity is authorized by ageneral permit or is exempt from thepermit requirement under § 123.107, anyperson who proposes to dischargedredged or fill material into Stateregulated waters shall complete, signand submit an application to the StateDirector.

[Conrnen- State application forms aresubject to EPA review and approval, see§ 123.3.]

(c) Content of Application. A completeapplication shall include:

(1) A complete description of theproposed activity including (i) necessarydrawings, sketches or plans (in crosssection and plan view] showing thegeneral and specific site locationincluding site address and character ofall proposed activities; (ii) sizerelationship of the proposed dischargeto t$e size of the affected waters anddepth of water in the area relative to theordinary high water mark; (iii) thepurpose and intended use of theproposed activity, scheduling of theactivity and the names and addresses ofproperty owners adjacent to the siteand, If appropriate, the location anddimensions of adjacent structures;

(2) The source of the dredged or fillmaterial and method of dredging used. ifany; a description of the type,composition and quantity of thematerial; the proposed method oftransportation and disposal of the-material, including the type ofequipment to be used.

(3) The use of any specific structuresto be erected on the fill.

(4) Information about the dischargearea needed to evaluate compliancewithin 40 CPR Part 230, includingdocumentation concerning the followingfactors:

(i) A discussion of alternatives to theproposed discharge, includingalternative disposal site, constructionmethods, and methods of discharge, andalso including reasons for rejecting thealternatives;

(i) Physical and chemicalcharacteristics of the discharge siteincluding the bottom and the receivingwater,

(Ill) Plants, fish, shellfish and wildlifein the discharge site which may bedependent on water quality andquantity;,

(iv) Site characteristics of the affectedand adjacent areas that may requireprotection or preservation;

(v) Uses of the disposal area whichmight affect human health and welfare;and

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(5) A description of technologies ormanagement practices by which theapplicant proposes to minimize adverseenvironmental effects of the discharge.

[Comment" Guidelines for minimizing theadverse effects of discharges of dredged orfill material are found in 40 CFR Part 230.]

(6) A list of the approvals required byother-Federal, interstate, State or localagencies for the work, including allapprovals received or denials alreadymade.

(7) One original set or one goodquality reproddcible set of drawings andmaps, as specified below; -

(i) A vicinity map identifying the mapor chart from which the vicinity mapwas taken and showing the following:

(A) Location of the activity siteincluding latitude and longitude andriver mile, if known;

(B) Name of waterway;(C) All applicable political (e.g.,

county, borough, town, city, etc.)boundary lines;

(D) Names of all major roads in thevicinity of the site including the roadproviding closest practicable access tothe site;

(E) Graphic scale; and(F) North arrow.(ii) A plan view of the proposed

activity showing the following:(A) Existing shorelines;(B) North arrow;,(C) Graphic or numerical scale;(D) Ordinary high water mark of the

body of the water(EJ Location of known wetlands;(F) Delineation of dispoasl site;(G) Water depths around the project;(H) Principal dimensions of the

structure or work and extent ofencroachment beyond the applicablehigh water line;

1I) Waterward dimension from anexisting permanent fixed structure orobject; "

[J) Distances to nearby Federalprojects, if abiplicable;

(K) Number of cubic yards, type ofmaterial, method of handling, andlocation of fill or spoil disposal area ifapplicable. If spoil material is to beplaced in approved dumping grounds, aseparate map showing the location ofthe dumping grounds should beattached. The drawing must indicateproposed retention levees, weirs, and/orother devices for retaining dredge or fillmaterials; and

(L) Location of structures, if any, inwaters of the United States immediatelyadjacent to the proposed activity,

* including permit numbers, if known.Identify purposes of all structures.

(iiI) An elevation and/or section viewof proposed project showing thefollowing:,

(A) Same water elevations as in theplan view;,

(B) Depth at waterward face ofproposed work, orif dredging isproposed, show dredging grade;

(C) Dimensions from applicableordinary high watermark for prop6sedfill, float or pile supported platform.Identify any structure to be erectedthereon; .

(D) Graphic or numerical scale;(E) Cross-section of excavation or fill,

including approximate side slopes;(F) Elevation of spoil areas;(G) Location of wetlands; and(H) Delineation of disposal site.(iv) Notes on all maps or drawings

submitted. including:(A) A list of names of adjacent

property owners whose property alsoadjoins the water and arp not shown onplan view-,

(B) A statement of the purpose ofproposed activity;

(C) A statement of datum used andelevation views. (Use mean low water,mean lower low water, National OceanSurvey Datum or National GeodeticVertical Datum of 1929); and

[D) A title block for each sheetsubmitted identifying the proposedactivity and containing the name of thebody of water, river mile, if applicable;name of county, and State; names ofapplicant or agent; number of the sheetand the total number of sheets in setand date the drawing was prepared.

§ 123.109 lReserved] ,

§-123.110 Coordination requirements.(a) General Coordination. {1) The

State Director shall develop anagreement with the agency designatedto'administer a Statewide CWA section208b)(4) regulatory program. Such anagreement shall include:.

(i) A definition of the activities to beregulated by each program;

(ii) Arrangements for the agenciesproviding an opportunity to comment onperspective.permits, BMP's and otherrelevant actions; and

(iii) Arrangements for incorporatingBMP's developed by the section2081b)(4) program into section 404permits, where qppropriate.

jComment-Where such a CWAsection208(bJ (4) program has been approved, nopermit shall be required for activities forwhich the Administrator has approve BMP'sunder such approvedprogram except asprovided in § 123.107. Until such Section208(b)(4) program has been approved by theAdministrator under CWA section208[b)(4)(C), a person proposing to discharge

must obtain an individual permit or complywith a general permit.]

(2) States are encouraged to receiveand use information developed by theFish and Wildlife Service as part of theNational Inventory as It becomesavailable.

(b) Coordination with Other Federaland Federal-State Review Process. Toassure coordination of a permit withFederal and Federal-State water relatedplanning and review processes, theState Director shall take the followingactions:

(1) Assure that the impact of theproposed discharge will be consistentwith the Wild and Scenic Rivers Actwhere the proposed discharge couldaffect portions of rivers designated wild,recreational, scenic or underconsideration for such designation.

(2) Assure that the proposed dischargewill be consisitent with State waterquality management planning tindersections 208 and 303 of CWA.

(3) Consult the State agency(les) withjurisdiction over fish and wildliferesources.

[Comment: Proposed discharges which aredetermined to be consistent with theseauthorities in (I-{4) will nevertheless bedenied section 404 permits If such dischargedoes not comply with other provisions of thisPart and 40 CFR 230.]

The State Director shall furnish copiesof the permit application to agenciesconsulted under this subsection.

(c) Coordination with Other Stat Ifthe proposed dis6harge may affect thequality of the waters of any State(s)other than the State in which thedischarge occurs the State Director shallprovide an opportunity for such State(s)to submit written comments within thepublic comment period on the effect ofthe proposed discharge on such State(s)waters, and to suggest additional permitconditions. If these recommendationsare not accepted by the State Director,he shall notify the affected State and theRegional Administrator in writing of hisfailure to accept theserecommendations, together with hisreasons for so doing.

(d) Review by Corps of Engineers,Fish and Wildlife Service, and NationalMarine Fisheries Service. (1) All permitapplications transmitted to the DistrictEngineer, to the U.S. Fish and WildlifeService, and to the National MarineFisheries Service shall be accompaniedby a'statement that the agencies have 20days from the date fo the receipt of thepermit application to notify EPAwhether they wish to comment. Failureto so notify EPA within 20 days may

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constitute a waiver orthe right torcomment.

(2] In cases where the agencies havenotified the Regional Administrator thattheywish to comment, they shouldsubmit their bvaluations and commentsto the Regional Administrator within 50days of receipt of the permit application.The agencies may request additionaltime. If the Regional Administrator findsthat more time should be allowed hewill advise the agencies of the-newdeadlineWritten comments shouldnormally be submitted within the initial20 day period, or as soon as practicablethereafter.

(3J If any of these agencies feels, thatadditional time is-necessary to completeevaluation of any permit application, itshall notify the Regional Administrator,who may request an extension from theState Director. If the State Directorallows additional time, the RegionalAdministrator shall notify the affectedagencies.

(4) All comments from the U.S. ArmyCorps of Engineers, the U.S.Fish andWildlife Service, and the NationalMarine Fisheries Service will be -considered by the RegionalAdministrator in accordance withprovisions of this section. If die RegionalAdministrator does not adopt anobjection of any such agency, he shallconsult with the objecting agency(s).The final decision to object or to requirepermit conditions will be made by theRegional Administrator.

§ 123.111 Emergency procedures.In an emergency situption the

requirements for public notice and fullFederal review may be waived with theconcurrence of the Regional-Administrator. An emergency is asituation which would result in anunacceptable hazard to life or severeloss of property if corrective actionrequiring a permit is not undetakenwithin a time period less than thenormal time needed to process theapplication under required proceduresof this Part.Emergency permits shallinclude conditions for restoration of thedisposal site.

§ 123.112 Reporting.In accordance with the requirements

of § 122.15, the State Director shalH(a) Submit to the Regional

Administrator a quarterly report on thelast day of January, April. July, andOctober, which shall include:

(1] Any unauthorized discharges ofdredged or fill material subject to theState's jurisdiction and a description ofenforcement actions taken. orcontemplated;

(2] A description of investigationsconducted to deterniine compliance withthe conditions and limitations of anypermits subject to the State'sjurisdiction, including any enforcementactions taken against violators of permitterms or conditions.

(b) Submit to the RegionalAdministrator an annual reportassessing the cumulative impacts of theState's permit program on the integrityof State-regulated waters. This annualreport may be appended to the Octoberquarterly report described in paragraph(a) as, agreed in the Memorandum ofAgreement, and shall include:

(1) The number and nature ofindividual permits issued by the Stateduring the year. This should include thelocations and types of water bodieswhere permitted activities are sited (e.g.,wetlands, rivers, lakes, and any othercategories which the Director andRegional Administrator may establish];

(2) The number of acres of each of thecategories of waters in paragraph (b)(1)which were filled during the year (eitherby authorized or unauthorizedactivities]-,

(3) The number of acres of each of thecategories of waters in paragraph (b)(1)which were protected under the State'sauthorities to prohibit, deny, restrict, orwithdraw the specification of disposalsites for receiving dredged or fillmaterial, as required by § 123.94.

(4) Thenumber and nature of permitsmodified, revoked and reissued orterminated during the year,

(5) The number-and nature of permitsissued under emergency cohditions, asprovided in § 123.111;

(6) The approximate number ofindividuals in the State dischargingdredged or fill material under generalpermits and an estimation of thecumulative impacts of these permittedactivities.

PART 124-PROCEDURES FORDECISION MAKING

Subpart A-General Program Requirements

Sec.124.1 Purpose and scope.124.2 Definitions.124.3 Application for a permit124.4 Consolidation of applicationL

24.5 Requests formodification orrevocation and reissuance or terminationofpermits.

124.6 Draft permlt.124.7 Other draftpermlts.124.8 Statement of Basis.124.9 Fact Sheet.124.10 Administrative record for EPA-Issued

permnit124.11 Public notice ofpermits124.12 Public comments and requests for

hearings.

124.13 Publichearings.124.14 Cross-examination and other

supplementary procedures.124.15 Obligation to raise points and

provide information during the commentperiod.

124.16 Reopening of comment period.24.17 Issuance and effective-date of permit.

124.18 Stays of contested permit terms.124.19 Response to comments.124.20 Administrative recordfor final

permit where EPAis the permittingauthority.

12421 Appeal o1RCRA. UIC andPSDpermits.

124.22 Additional time after serviceby mail

Subpart B-Specif Procedures Applcableto RCRA Permits124.31 Public notice of receipt of application

and availability of summary.Subpart C-SpecHii Procedures Applicabteto PSD Permits224.41 Procedures for small sources.

Subpart 0-Specifc Procedures Appkableto NPDES Permits124.51 Purpose and scope.1245 Permits required on a case-by-case

basis.124.53 State certification.124.54 Special provisions for State

certification and concurrence ofapplications for section 30(h)modifications.

124.55 Effect of State certification.124.58 Fact sheets.124.57 Requirements for N1DES draft

permits incorporatingsectiorrs(hlmodificatons.

124.58 Public noticeIA. Terms requestec by the Cbrps of

Engineers and othergavernmentalagencies.

124.80 Iuanceand effectivedate ofNPDES permits.

124.61 Finalenvironmental impactstatement.

124. Administrative Record.124.83 Decisioi x Variances and

Modifications.124.64 ProceduresforTariances and

modifications where EPAis the permitissuing authority.

124.65 Appeals ofmodifications andvariances.

248 Special procedures for discharge intomarine waters under section 301(h].

124I 7 Specialprocedures for decisions onthermal variances (Section 316(a)),

Subpart E-Evidentlary Hearlinfor EPAIssued NPDES Permits124.71 Applicability.124.7Z Definitions.124.73 0Ing and submission of documents.124.74 Requests for evidentiary hearing.124.75 Decision onrequest for a hearing.124.75 Obligatiorr to raise Issues and submit

evidence before a final permitis issued.124.77 Notice ofhearing.124.78 Exparte communications.124.79 Additional parties andissues.124.80 Filintand service.

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124.81 Assignment of Administrative LawJudge.

124.82 Consolidation and severance.124.83 Prehearing conferences.124.84 Summary determination.124.85 Hearing procedure.124.86 Motions.124.87 Record ofhearings.124.88 Proposed findings of fact and

conclusions; brief..124.89 Decisions.124.90 Interlocutory appeal.124.101 Appeal to the Administrator.124.102 Applicability of SubpartE.124.103 EPA headquarters approval of

stipulation or consent agreement.

Subpart F-Non-Adversary Procedures forNPDES Initial Ucensing124.111 Applicability.124.112 Relation of other subparts.124.113 Public notice regarding draft permits

and permit conditions.124.114 Request for hearing; Request to

participate in a hearing. -124.115 Effect of denial of, or absence of,

request forhe'aring.124.416 Notice of hearing.124.117 Request to participate in hearing.124.118 Submission of written comments on

draft permit.124.119 Presiding Officer.124.120 Panel hearing.124.121 Opportunity for cross-examination.124.122 Record for final permit.124.123 Filing of brie, proposed findings of

fact and conclusions of law andproposed modified permit.

124.124 Recommended decision.124.125 Appeal from or review of

recommended decision.124.126 Final decision.124.127 Final decision if there is no review.124.128 Delegation of Authority; Time

Limitations.124.129 EPA headquarters approval of

stipulation or consent agreement.Authority: Resource Conservation and

Recovery Act, 42 U.S.C. 6901 et seq., CleanAir Act, 42 U.S.C. 1857 et seq.; and CleanWater Act, 33 U.S.C. 1251 et seq.Subpart A-General Program

Requirements

§ 124.1 Purpose and scope.(a) This Part specifies the procedures

EPA will follow in issuing and-modifyingNPDES, RCRA and UIC permits, andpermits to implement the "prevention ofsignificant deterioration" (PSD)provisions of the Clean Air AcL

(b) This Part is designed so thatpermits for a given facility under two ormore of the listed programs can beprocessed either separately or incombination at the choice of thepermitting authority. This will allowEPA to combine the processing ofpermits where greater efficiency is likelyto result, but will not bind the Agency tofollow that course in all cases.Consolidation of permits can take place

either when the permit applications.aresubmitted or when draft of final ii~rmitsare issued even where permitapplications have been submittedseparately. Permit applications may_recommend whether or not their permitapplications should be consolidated inany given case.

(c) Subpart A specifies proceduresapplicable to all three permit programs.Subparts B-E provide-proceduresspecific to the RCRA, PSD and NPDESpermit programs. Subpart F provides aprocedure based on the "initiallicensing' provisions of the APA thatcan be used instead of Subparts A-E inappropriate cases.

(d) State administration of each ofRCRA, UIC, NPDES and 404 permitprograms can be approved by EPAunder Part 123. Only selected portions ofthis Part apply to these approved Stateprograms, as listed in § 123.8. (In thecase of PSD programs, none of theprovisions of Part 124 has been madeapplicable to States.) However, there isa need for coordination in makingdecisions when two or more suchpermits will be issued to an activity byboth EPA and by a State. Accordingly,the-regulations provide that applicationsmay be jointly processed, joint commentperiods and hearings may be held, andfinal permits may be drafted on acooperative basis whenever EPA and aState aQree to take such steps either ingeneral or in an individual case. Suchjoint processing agreements may beprovided in the Memorandum ofAgreement developed under § 123.6.

§ 124.2 Definitions.-The definitions in Part 122 apply to

this Part.

§ 124.3 Application for a permit.(a) Any person who requires a permit

under the RCRA, UIC, PSD or NPDESprogram shall complete, sign, andsubmit an application for each permitrequired to the Director in accordancewith §§ 122.6, 122.23, 122.25, 122.36, and122.64 or 123.105, or the applicablerequirements of 40 CFR 52.21, except asprovided in § 124.82 for NPDES generalpermits or for RCRA permits by ruleunder § 122.26.

(b) No.permit shall be issued until theapplicant has fully complied with thegoverning application filingrequirements of this Part and Part 122. Ifan applicant fails or refuses to correctdeficiencies in the application, thepermit shall be denied or appropriateenforcement actions may be taken underthe provisions of the appropriate Act.These provisions include sections 308,309, 402(h) and 402(k) of the CWA,

section 3008 of RCRA, and sections 1423and 1424 of SDWA.

(c) Permit applications are designedto fit the normal situation for mostapplicants. However, if the Directordetermines that further information of asite visit is necessary in order toevaluate the application completely andaccurately, the applicant shall benotified and a date shall be scheduledfor receipt of the requested Informationor scheduling of any necessary site visit,

(d) Permit applications must complywith the signature and certificationrequirements of § 122.5.

(e)(1) Any application submitted by anew source, new HWM facility or newinjection well, and any Part Bapplication for an existing HWM facilityfor an EPA-issued permit shall bereviewed for completeness by theDirector within 30 days of its receipt.Upon completiig this review, theDirector shall inform the applicant inwriting whether or not the application iscomplete and list any requiredadditional information. Therequirements of this paragraph shall notpreclude a Director from requestingadditional information from theapplicant at a later time for purposes ofclarification, modification orsupplementation of previouslysubmitted data.

(2) In the event of such a deficiency,the date of receipt of the applicationshall be, for the purposes of this section,the date on which the Director receivedall relevant information.

§ 124.4 Consolidation-of applications.(a) Except as provided for RCRA

permit applications (Part A only) under§ 122.23, any facility or activity requiringa permit under two or more of theRCRA, UIC or NPDES programs whichwill be issued entirely by EPA maypostpone the filing date for anyapplication for such a permit toconsolidate it with another applicationwhich has a later filing date:

(1) For up to 180 days, provided:(i) The other application legally must

be filed by the later filing date and Itwill be timely filed; and

(ii) The perimit applicant notifies theRegional Administrator, in writing ofhis/her intent to postpone the filingdate; or

(2) For up to two and one half years,provided the permit applicant obtainsthe written permission of the RegionalAdministrator to so consolidate thepermits.

(b) Except as provided for RCRApermits applications (Part A only) under§ 122.23, if an agreement betheen EPAand an approved State so provides, any

I I34322




facility that requires two or more of anRCRA permit. a UIC permit or anNPDES permit, one or more of whichwill be issuedby EPA and one or moreof which will be issued by an approvedState-maypostpone the fling date forany application for such a permit-

(IForup to 180 days, in order toconsolidate-itwith another permitapplication which legally must be filedwithin that period and which will betimely filed, if such person notifies theRegional Administrator and the StateDirector in writing of his/her intent topostpone the filing date; or

(2)-With the-written permission ofboth the Regional Administrator and theState Director, for up to two-and onehalf years.in order to so consolidate it.

(ci When permit applications are filedtogetherunder this section, neither theRegionalAdministrator por the StateDirectoris required to issue thecorresponding draft permits under§ 124.6 at the same time. Conversely,draft permits for a given facility underthe RCRA UIC and NPDES programsmay be issued at the same time evenwhere the permit applications were filedat different times.

[Comments: (1) States are encouraged toconsolidate applications, where they havebeen approved by EPA to administertwo ormore of the RCRA. UIC or NPD)ES programs.However they are not required ta do so.

(2) This, section does not apply to Air PSDpermits.]

§ 124.5 Requests for modification orrevocation and relssuance or terminationof permits.

(a) If a permittee believes that amodification to or revocation andreissuance of a RCRA. UIC, PSD orNPDES permit is justified under § 122.9or 122.10. (or section. 5221 in the case ofa PSDpermit] he/she may request amodification or revocation andreissuance or termination from theDirector in writing. The request shall setforth all facts or reasons known to thepermittee which may be relevant to adecision on the request.

(b). If the Director agrees that themodification or revocation andreissuance request under paragraph (a)appears justified, he/she shall prepareand formulate a draft permit underf 124.6 incorporating the changes. TheDirector may request additionalinformation or, in appropriate cases,may require the submission of a newpermit application.

Cc) If the Regional Administrator, orwhere appropriate, the State Directordecides that the modification orrevocation and reissuance request underpaiagraph (al does not appear justified;

he/she shall reply to the permitteebriefly setting forth in writing thereasons for that decision.

(d) When a request for a modificationunder this-sectionis granted and a newdraft permit is formulated. only thoseterms dependent on the request will bereopened. All other aspects of the permitwill remain In, force until the expiration:of the permit. If the permit is revokedand reissued, the draft permit is subject--to the same procedures as if the permithad. expired and was being reissued.

(e) In the case of a proposedmodification to an existing 404 permitinitiated by the permittee whichinvolves any change in applicableconditions or requirements under§J 2.11. or 123.105, such proposedmodification shall be treated as a permitapplication and shall be processed inaccordance with all requirements of§ 1 .113.

§ 124.6 Draft permit.- a) If a permit has been properlyapplied for, or the Director, afteranalyzing the information concerning apermit furnished under that Part andany other relevant information, shalltentatively decide whether to issue ordeny the permit. If the tentative decisionis to issue thepermit, a draft permitshall beprepared containing at aminimum the following information:

(1) All conditions or requirementsspecified in § 122.11;

(2) For.Ci) RCRA permits, standards for

treatment, storage or disposal and otherpermit terms and conditions which meetthe requirements of § 122.24;

(ii) UIC permits, permit terms andconditions that meet the requirements of§ 122.42;

(iii) PSU permits, permit terms andconditions that meet the requirements of40 CFR 5221;

(iv) NPDES-permits~eMuentlimitations, standards, prohibitions andconditions required: under § 122.69,including where applicable anyconditions certified by a State agencyunder § 124.55, and all variances orother modifications that are to beincluded under § 124.04.All effluentlimitations and standards shall becalculated. and specified as requiredunder § 1220;

(v) 404 permits, permit terms andconditions that meet the requirements of§ 123.105;

(3) All compliance schedules requiredby § 122.12; and

(4) A monitoring requirementsrequired by § 122.14.-[b All draft permits formulated under

this section and § 124.7 shallbe

accompanied by a statement of basis orfact sheetunder ft 124.8 or124.9 .Inaddition, EPA-formulated draft permitsshall be based on the administrativerecord required by §124.9.

[CommeanL Addlitonalrequirements fordraft NPIES permits incorporating CWAsection 30(hl)modifications are setforthin

S2.57.)

(c) If the Reglonal Administratordetermines under 40 CFR Part 6.9 thatan Environmental Impact Statementshall be prepared for an NPDESnewsource, the publicnotice of the draftpermit under this section shall not begiven until a draft environmental impactstatement is issued.

(d) Consolidation of dftpermits. (1)If a facility or activity will require apermit under two.or more of the RCRA,UIC, PSD or NPDES programs theRegional Administrator may issueconsolidated draftpermits whether ornot the permits were appliedfor at thesame time, provided the conditionsforissuance of each separate permit havebeen met. Whenever consolidated draftpermits are issued the statements ofbasis (see § 124.8) or fact sheets- (see§ 124.9). administrative records (see.§ 124.0), public commentperiods (see§ 124.11) and. any publiahearings forthosepermits shall also be consolidated.However. the final permits need not allbe issued together if in. the judgment ofthe Regional Administrator. jointprocessing would result in unreasonabledelay In. the issuance of one or morepermits.

(2) If a facility or activity will requiretwo or more of a RCRA, UIC, PSD orNPDESpermit. one or more of which isto be issued by EPA andlone or more ofwhich is to beissued by an.approvedState, the-RegionalAdministratorandthe State Directors) may agreeto-issuethe draft permits at the sametimewhether ornotthey were applied for atthe same time. Whenever two or moredraft permits are issued at the sametime. administrative-records (forEPA-Issued permits-only) shouldbeconsolidatedfor highly significantpermits and any public hearings forthose permits shall also be-consolidated.However, thL-final permits need not allbe issued togetherif, in the judgmentofeither the RegionalAdministrator or theState Director, such consolidation wouldresultinunmeasonabhle delay intheissuance of one or more permits.

(3) The Director shalknot, withouttfewrittenaconsent of the-permit applicantconsolidate issuance of a PSI permitwithissuance of any other permit underthis sectionwhenith dosowoulddelay

34323




issuance of the PSD permitmore thanone year from the date of application.

(4) Whenever draft permits includingan NPDES permit are consolidatedunder this subsection, and the RegionalAdministrator elects to make the special"initial licensing" provisions of SubpartF applicable to the NPDES permit, anypermits with which that NPDES permitwas consolidated shall likewise beprocessed under Subpart F. I

-(e) The decision to deny a permitwhich has been applied for shall bemade through the same procedures asany other decision on a permit. A draftnotice of intent to deny will be issuedand made available for public comment,accompanied by a fact sheet orstatement of basis. A response tocomments and final decision will then

'be prepared. Appropriate appeals maythen be made under this Part.

§ 124.7 Other draft permits.(a) The Director may formulate a draft

permit or notice concerning a RCRA,UIC, PSD or NPDES permit withouthaving received an application, asprovided in this section.

(1] If the Director decides that apermit should be:

(i) Modified or revoked and reissuedunder § 122.9, the Director shallformulate a draft permit containing theprovisions required under § 124.6.

(ii) Terminated under § 122.10, theDirector shall issue a notice of intent toterminate the permit. -

(2) NPDES general permits under§ 122.82 shall be roposed in draft form,shall contain the-esignation of theGeneral Permit Program Area (under§ 122.82(a)(2)), and, except for generalpermits for storm sew~ers, shall be sentto the EPA Deputy AssistantAdministrator for Water Enforcementfor concurrence or objection during thepublic comment period. No final permitshall be issued if the EPA DeputyAssistant Administrator for WaterEnforcement objects to the generalpermit. Such objections must be made-within 90 days from the public notice forthe draft general permit under§ 124.58(b).,

(b) Any draft permit formulated underparagraph (a) shall be based on theadministrative record as defined in§ 124.10 and § 124.62 (for NPDES permitsonly).

[Comment. Public comment and hearingsunder §§ 124.12 and 124.13 pertaining topermit modifications will be limited'to theterms of the proposed modification.]

(c) In the case of a proposedmodification to an existing 404 permitinitiated by the State Director which

involves any change in applicableconditions or requirements under§ § 122.11 or 123.105, such proposedmodification shall be treated as a permitapplication and shall be processed inaccordance with all requirements. of§ 123.113.

§ 124.8 Statement of Basis.A statement of basis shall be prepared

for every draft permit formulated under§ 124.6 for which a fact sheet is notrequired under § 124.9. The statement ofbasis shall briefly describe thederivation of the terms and conditions ofthe permit and the reasons for them. Thestatement of basis shall be part of theadministrative record and shall be sentto the applicant and to interested Stateand Federal agencies and to othermembers of the public on request.

§ 124.9 Fact Sheet.(a) A fact sheet shall be prepared for

every draft permit for a major HWMfacility, UIC facility, or NPDESdischarger, for every NPDES generalpermit under § 122.82 and NPDES draftpermit that incorporates avariance ormodification, and for every draft permitwhich the Director finds is the subject ofwidespread public interest or raisesmajor issues. The fact sheet shall brieflyset forth the-major facts and thesignificant factual, legal, methodologicaland policy questions considered in .setting the terms of the draft permit. TheDirector shall send this fact sheet to theapplicant, to interested State andFederal agencies, and to any otherperson on request. Any of these personsmay waive their right to receive a factsheet for any classes and categories ofpermits.

(b) The fact sheet shall include, whereapplicable:

(1i A brief description of the type of -

facility or activity which is proposed tobe permitted;

(2) Thd type and quantity of wastes,pollutants or fluids which are proposedto be treated, stored, disposed of,discharged, emitted or injected;

(3) A brief summary of the basis forthe proposed permit conditionsincluding reference to applicablestatutory or regulatory provisions and,for EPA permits, appropriate supportingreferences to the administrative recordrequired by § 124.10, and § 124.62 (forNPDES peimits only);

(4) Reasons why any requestedvariances, modifications, or alternativesto required standards do or do notappear justified;

(5) A description of the procedures fordeciding on the final permit including:

.(i) The beginning and ending dates ofthe comment period required under§ 124.12 and the address wherecomments will be received;

(ii) Procedures for requesting ahearing and the nature of that hearing;and

(il) Any other procedures by whichthe public may participate in theformulation of the.final permit.

(6) Name and telephone number of aperson to contact for additionalinformation.

(c) "Major permit" means:(1) In the case of an NPDES permit,

any permit for dischargers on the state-by-state list of major dischargers;

(2) In the case of a UIC permit, anypermit to an underground injection wellidentified as a major permit in EPA'sannual operating guidance for EPARegional Offices and States; and

(3) In the case of a RCRA permit, apermit for a major HWM facility asdefined in § 122.3(b).

§ 124.10 Administrative record for EPA-Issued permits.

(a) Decisions by the RegionalAdministrator to formulate a draftpermit under § 124.6 shall be made onlyon the basis of the administrative recorddefined in this section.

(b) The record for formulating a draftpermit under § 124.6 shall consist of:

- (1) The initial application and anysupporting data furnished by theapplicant;

(2) The draft permit;(3) The statement of basis under

§ 124.8 or any fact sheet under § 124.9;(4) All documents cited in the fact

sheet or statement of basis, unless theyare published materials which aregenerally available, (in which case theyshould be specifically referenced);

(5) Other documents contained in thesupporting file for the permit, includingcorrespondence, telephone and meetingmemoranda, compliance reports, etc.

(6) For NPDES permits only, anyenvironmental assessment,Environmental Impact Statement,negative declaration, or environmentalimpact appraisal that may have beenprepared.

(c) The record for formulating a draft-permit under § 124.7 shall consist of thedraft permit, the statement of basisrequired by § 124.8 or fact sheetprepared under § 124.9 and alldocuments cited in the fact sheet or thestatement of basis.

(d) Material readily available at theissuing Regional Office or publishedmaterial which is generally available,and which is included in theadministrative record under the

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Federal Register / Vol. 44, No. 116 / Thursday, June 14. 1979 / Proposed Rules

standards of paragraphs (b) and (c),does not need to be physically includedin the same file as the rest of the recordas long as it is specifically referenced in

-the statement of basis or the fact sheet.[Comments: (1) The administrative record

for draft permits under this section willcomprise the bulk of the material for the finaladministrative record.

(2] See also § 124.62 for additional NPDESadministrative record requirements.]

§ 124.11 Public notice of permits.(a) Notices shall be circulated in a

manner designed to inform interestedpersons of a hearing or determinationdealing with permit denial or issuance.Notice of a draft permit shall allow atleast 30 days for public comments andnotice of a hearing shall be given 30days before the hearing.

[Comment- In the discretion of the Director,this could also include press releases or theuse of any other forum or medium to elicitpublic participation.]

(b) Notice of the formulation of anydraft permit formulated under § 124.6and notice of an initial new sourcedetermination under § 124.81, notice ofreceipt of a section 404 application andnbtice of all hearings required by§ 124.13 shall be given by the Director.

[Comment. Notice of receipt of a section404 permit application is required only whereno draft permit is formulated. See § 123.98c).]

(1) By mailing a copy of the notice to:(i) The applicant;(ii) Any other agency which has

issued or will issue a RCRA, UIC, PSD"-or NPDES permit to the activity in

question;()ii To any State agency responsible

for plan development under sections,208(b)(2) or 303(c) of the Clean WaterAct;,

(iv) For NPDES permits only, to theU.S. Army Corps of Engineers, toFederal and State agencies withjurisdiction over fish, shellfish andwildlife resources and to otherappropriate governmental authoritiesincluding any affected state;

(v) For 404 permits only:(A) To the Regional Director of the

Federal Aviation Administration, if thedischarge involves the construction ofstructures which may affect aircraftoperations or for purposes associatedwith seaplane operations;

(B) To any adjacent property owner,(C) To any State agency(ies)

responsible for administering waterquality, fish, shellfish and wildliferesources and State Section 404programs in the affected state, if theproposed discharge may effect the

waters of any State(s) other than theState in which the work is to be done;

(2) By mailing a copy of the notice toany person onra mailing list developed;

(i) From those who request to be in thelist:

(ii) By soliciting persons for "arealists" from participants in past permitproceedings in that area; and

(iii) By notifying the public as to theavailability of such notices throughperiodic press publication and notices insuch publications as Regional and Statefunded newsletters, environmentalbulletins, or State Law Journals. Themailing list may be updated from time totime by requesting an indication ofcontinued interest in being on themailing list;, and

(3) By any of the following methods:(i) By application of a notice meeting

the requirements of paragraph (c) in adaily or weekly newsletter within the

k area affected by the facility or activity;(ii) By posting a copy of the

information required under paragraphs(c) and (d) at the principal office of themunicipality or political subdivisionaffected by the facility or activity, andby posting a copy at the United StatesPost Office serving those premises;

(iii) By any other method reasonablycalculated to give actual notice of theaction in question to the personspotentially affected by it; or

(iv) Where the program is beingadministered by an approved State, inany other manner constituting legalnotice to the public under State law.

(4) Any person otherwise entitled toreceive notice under subparagraph (1) ofthis paragraph may waive their right to

.,receive notice for any classes andcategories of permits.

(c) All public notices issued under thisPart shall contain the followinginformation:

(1) Name and address of the officeprocessing the application or conductingthe hearing-

(2) Name and location of the facilityor activity to be permitted, except in thecase of NPDES general permits under§ 122.82;

(3) Name of the person, and addressand telephone number where interestedpersons may obtain further information,including copies of the draft permit andstatement of basis or fact sheet or, forsection 404 permits only, copies of theapplication and proposed permit, ifrequired.

(4) For EPA-issued permits, thelocation of the administrative recordrequired by §§ 124.10 and 124.62 (forNPDES permits only) and the times atwhich it will be open for publicinspection;

(5) For NPDES permits only: (i] ageneral description of the location ofeach existing or proposed dischargepoint, including the receiving water,

(ii) If the applicant has submitted dataand information in accordance withCWA section 316(a) for a thermalvariance, a statement to that effect. Thenotice shall state that all data submitted /by the application are available as partof the administrative record for publicinspection during office hours. Thenotice shall also state that any personmay comment in writing under § 12412upon the applicant's desired alternativeeffluent limitations and may alsorequest a hearing; and

(6) For 404 permits only, applicablestatutory authority and regulations;

(7) Any additional informationconsidered necessary or proper.

(d) Public notice mailed to personsidentified in paragraphs (b)(1) and (h)(2)shall contain the information requiredby paragraph (c) and the followinginformation:

(1) A brief description of theapplicant's activities or operations thatare involved in the facility or activitydescribed in the application and astatement whether the applicationpertains to a new or existing facility oractivity.

(2) A summary of major terms of thedraft permit;

(3) Brief description of the commentprocedures required by § 124.12, and thetime and place of any public hearingthat will be held; and

(4) For NPDES permits only, if thedischarge is from a new source, astatement of the RegionalAdministrator's decision as to whetheran Environmental Impact Statement willbe or has been prepared; and

(5) For 404 permits only:(i) The purpose of the proposed

activity and intended use, including adescription of the type of structures, ifany, to be erected, and a description ofthe type, composition and quantity ofmaterials to be changed and means ofconveyance; and any proposedconditions and limitations on thedischarge;

(i) Name and water quality standardsclassification, if applicable, of thereceiving waters into which thedischarge is proposed, and a generaldescription and location of the site ofeach proposed discharge. -

ii) Any other available informationwhich may assist the public inevaluating the likely environmentalimpact of the proposed activity, if any,upon the integrity of the receivingwaters.

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(6) A statement of the right to requesta public hearing.

(7) Any other procedures by which thepublic may participate in theformulation of the final permit.

(e) In addition to the informationrequired under paragraphs (c) and (d)above, the public notice of a publichearing held under § 124.13 shall containthe following information:

(1) Reference to the date of previouspublic notice relating to the permit;

(2) Date, time and place of thehearing; and

(3) In the case of mailed public notice,a brief description of the nature andpurpose of the hearing, including theapplicable rules and procedures.

(4) For 404 permits only, a summary ofmajor issues raised to date during thepublic comment period.

(f) Public notice issued under thissection may describe more than onepermit and more than one permittedactivity. No public notice shall be givenin cases where a request for permitmodification is denied, but writtennotice of that denial shall be given theperson requesting such modification.Public notice of the draft permit may beissued at the same time public notice ofa hearing is given.

§ 124.12 Public comments and requestsfor hearings.

(a) During the public comment periodprovided under § 124.11(a), anyinterested persons may submit writtencomments and may request a publichearing. A request for a public hearingshall be in writing and shall state thenature of the issues proposed to beraised in the hearing. All commentsshall be considered in preparing thefinal permit and shall be responded toas provided in § 124.19.

(b) Written comments maybesubmitted: (i) For all permits exceptthose section 404 permits for which nodraft permit is required (see § 123.98(c)),on the draft permit and accompanyingstatement of basis or fact sheet or otherportions of the administrative record;

(ii) For 404 permits for which no draftpermit is required (see § 123.98(c)), onthe permit application or amendedapplication (including proposed permitwhere required).

(c) Where the Director finds a'significant degree of public interest in adraft permit or permits, he/she shallhold a public hearing to consider thepermit or permits. Public notice of thathearing shall be given as specified in§ 124.11. Where a state authority otherthan the Director is required underStatelaw to hold hearings, on permits, it

rather than the Director may holdhearings under this paragraph.

(d) Any person may submit oral orwritten statements at hearings heldunder this section. Reasonable limitsmay be set upon the time allowed fororal statements.

§ 124.13 Public hearings.(a)(1) When i public hearing will'be

held under § 124.13 and EPA is thepermitting authority, the RegionalAdministrator shall designate aPresiding Officer for the hearing whoshall be responsible for its schedulingand orderly conduct The RegionalAdministrator may also designate anEPA panel to take part in the hearing.The membership of the panel in generalshould consist of EPA employees havingspecial expertise in an area-related tothe issues to be addressed at fhehearing. For this reason, the membershipof the panel may change as differentissu5s are presented for discussion. TheRegional Administrator may alsodesignate EPA employees who will notor possibly will not serve on the hearingpanel to provide staff support to thepanel as needed.

(2) Joint EPA-State hearings onpermits subject to this Part, one or moreof which will be issued by EPA and oneor more of which will be issred by anapproved state, may be held either asprovided in § 124.4 or otherwise byagreement in individual cases. Where.joint hearings are held with a Stateagency, the Presiding Officer and thepanel members may be employees ofeither EPA or the State. The PresidingOfficer, any-panel members and anypanel support staff shall be chosen byagreement of EPA and the State.

(b) At any hearingunder this section,any person may submit oral or writtenstatements and data concerning theproposed permit. Reasonable limits maybeset upon the time allowed for oralstatements, and the submission ofstatements in writing may be required.

(c) The Presiding Officer and anypanel member may question any person

-participating in the hearing. Persons inthe hearing audience, including otherhearing participants, may submit writtenquestions to the Presiding Officer for the-Presiding Officer to ask the participants,and the Presiding Officer may, afterconsultation with the panel, and at his/her sole discretion, ask these questions,or allow a member of the panel to askthem.

( ) Participants in the hearing shallsubmit for the hearing record suchadditional material as the hearing panelmay request within 10 days followingthe close of the hearing, or such other

period of time as is ordered by thePresiding Officer. Participants may alsosubmit additional information for thehearing record on their own accordwithin 10 days after the close of thehearing.

(e) The hearing shall be eitherstenographically reported verbatim ortape recorded.

§ 124.14 Cross-examination and othersupplementary procedures.

(a) No cross-examination shall bepermitted at any hearing held under§ 124.13. However, any participant insuch 6 hearing may submit a request forcross-examination after the hearing hasclosed. The request shall be received byEPA within one-week after a fulltranscript of the panel hearing becomesavailable and shall specify:

(1) The disputed issue(s) of materialfact regarding which cross-examinationis requested. This shall include anexplanation of why the questions atissue are factual, rather than of ananalytical or policy nature, the extent towhich they are in dispute in the light ofthe record made thus far, and the extentto which and why they can reasonablybe considered material to the decisionon the application for modification; and

(2) The person(s) a participant desiredto cross-examine, and an estimate of thetime necessary. This shall include astatement as to why the cross-examination requested can be expectedto result in resolving the issue ofmaterial fact involved.

(b) As expeditiously as practicableafter receipt of all requests for cross-examination under paragraph (a) of thissection, the Presiding Officer, afterconsultation with the hearing panel,shall issue an order either granting ordenying each such request, which shallbe disseminated to all personsrequesting cross-examination and allpersons to be cross-examined. If anyrequest for cross-examination Isgranted, the order shall specify:

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

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

(3) The persons allowed to conductcross-examination;

(4) Time limits as appropriate for theexamination of witnesses by each cross-examiner;, and

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

(c) No later than the time set forrequesting cross-examination, a hearingparticipant may request that alternativemethods of clarifying the record (such asthe submittal of additional written

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information) be used in lieu of or inaddition to cross-examination. ThePresiding Officer shall issue an ordergranting or denying such request at thetime he issues (or would have issued) anorder under paragraph (b) of thissection. If the request is granted, theorder shall specify the alternativeprovided and any other relevantinformation (e.g., the due date forsubmitting written information).

(d) In issuing any order underparagraph (b), the presiding officer.

(1) May determine that one or moreparticipants have the same or similarinterests and that to prevent undulyrepetitious cross-examination, theyshould be required to choose a singlerepresentative for purposes of cross-examination. In such a case, the ordershall simply assign time for cross-examination by that singlerepresentative without identifying therepresentative further.

(2) Shall consider the extent to whichthe issues raised are likely to be thesubject of an evidentiary hearing underSubpart E and shall deny cross-examination with respect to any suchissues. The presiding officer may grantcross-examination to the extent he/shefinds such a grant would be likely toavoid the need for an evidentiaryhearing.

(3) May require, as a precondition toruling on the merits of such requestalternative means of clarifying therecord to be used whether or not arequest to do so has been made underparagraph (b). The person requestingcross-examination shall have one weekto comment on the results of utilizingsuch alternative means, following whichthe Presiding Officer, as soon aspracticable, shall issue an order grantingor denying such person's request forcross-examination.

(e) The Presiding Officer and at leastone member of the original hearingpanel shall preside at the supplementaryhearing. During the course of thehearing, the Presiding Officer shall haveauthority to modify any order issuedunder paragraph (b) of this section. Averbatim transcript shall be made of thishearing.

§ 124.15 Obligation to raise points andprovide information during the commentperiod.

All persons, including applicants, whobelieve any of the terms of a draftpermit is not appropriate, must raise allreasonably ascertainable issues andsubmit all arguments and factualgrounds supporting their position,including all supporting material by theclose of the public comment period

(including any public hearing period)required by § 124.12.

§ 124.16 Reopening of comment period.If any information or arguments

submitted during the public commentperiod, including information orarguments whose submission is requiredunder § 124.15, appears to raisesubstantial new questions concerning apermit, the Regional Administrator mayconclude that one of the followingactions is necessary for an informeddecision:

(a) Formulation a new draft permit.appropriately modified, under § 124.6.

(b) Preparation a fact sheet or revisedfact sheet under § 124.9 and reopeningof the comment period under § 124.12; or

(c) Reopening of the comment periodunder §124,12 to give interested personsan opportunity to comment on theinformation or arguments submitted.

In each case the notice required by§ 124.11 shall be given.

§ 124.17 'issuance and effective date ofpermits.

(a) After the close of the publiccomment period (including any publichearing period) required by § 124.12 on adraft permit, the Regional Administratorshall prepare and issue a final permitand shall serve notice of that action onthe applicant, and on each person whohas submitted written comments orrequested notice of the issuance of thefinal permit. This notice shall includereference to the procedures available toappeal a RCRA, UIC or PSD permitdetermination or to contyst an NPDESpermit determination.

(b) A permit shall become effective 30days after the service of notice of thedecision under paragraph (a), unless;

(1) A later effective date is specifiedin the decision; or

(2) Review is requested under § 124.21(RCRA, UIC and PSD permits) or arequest for an evidentiary hearing Isgranted under § 124.75 (NPDES permits).

§ 124.18 Stays of contested permit terms.

(a) Stays. (1) If a request for review ofa RCRA or UIC permit under § 124.21 or§ 124.60 is granted, the force and effectof the contested permit terms shall bestayed and shall not be subject tojudicial review pending final agencyaction.

(2) Uncontested terms which are notseverable from those contested shall bestayed together with the contested termsunder subsection (a). Stayed provisionsshall be designated by the RegionalAdministrator. All other provisions of apermit shall remain in full force and

effect, and the permittee shall be subjectto all these provisions.

(b) Stays based on Cross-Effects. (1)No stay may be granted based on thegrounds that an appeal to theAdministrator under § 124.21 will likelyresult in changes to a permit granted toa facility or activity under one statutethat will in turn make changes to apermit under some other statuteadvisable, unless each of the permitsinvolved has been appealed to theAdministrator and he/she has acceptedthe appeal(2) If terms and conditions of a RCRA

or UIC permit are marked down forreconsideration in an evidentiaryhearing on an NPDES permit under§ 124.82 then the affected terms andconditions shall be stayed pending boththe presiding officer's recommendeddecision as to them and any action onany recommended changes by theRegional Administrator. Any decisionby the Regional Administrator on thepresiding officer's recommendation shallbe treated like the issuance of a permitfor purpose of § 124.17.

(3) No stay of an NPDES, RCRA orUIC permit issued by EPA shall begranted based on the staying for anyreason of any suc permit issued by aState except at the discretion of theRegional Administrator and uponwritten request from the State DireLtor.

[Comment- NPDES stay provisions areprovided in § 124.60.]

§ 124.19 Response to comments.(a) At the time that any final permit is

issued, the Director shall issue aresponse to comments for that permit.This response to comments shallcontain:

(1) A specific indication of whichprovisions of the draft permit have beenchanged in the final permit, and thereasons for the change; and

(2) A brief description of and responseto all significant comments on the draftpermit of the permit application (forsection 404 permits only) raised duringthe public comment period, or duringany hearing.

(b) For EPA-issued permits, anydocuments cited in the response totomments shall be included in theadministrative record for the finalpermit as defined in § 124.20.

(c) The response to comments shall beavailable to the public.

[Comment If new points are raised or newmaterial supplied during the public commentperiod. EPA may document its response tothose matters by adding new material to theadministrative record.]

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§ 124.20 Administrative record for final the public comment period as requiredpermit where EPA Is the permitting by § 124.12 and where appropriate, aauthority. showing that the term or condition in

(a) Deqisions of the Regional questi6n is based onAdministrator to issue a flnalpermit (1) Afinding of fact or conclusion ofunder § 124.17 shall be made on the law which is clearly erroneous, orbasis of the administrative record (2) An exercise of-discretion or policydefined in this section. which is important and which the

(b) The administrative record for any Administrator should, in his discretion,final permit shall consist of the review.administrative record for the draft r e Aiew.

pemtand -- (b) The Administrator may alsopermit rnd - decide on his or her own initiative to(1) All comments received during the review any term or condiditon of-any

public comment period provided under RCRA, UIC or PSD permit issued under§ 124.12; -this Part.

(2) The tape or transcript of any' (c) Within a Teasonable time followinghearing(s) held under § 124.13. the filing of the petition for review, the

(3) The response to comments Administratorshallissue an order eitherrequired by § 124.19; granting ordenying the petition for

(4) For NPDES new source permits review. To the extent review is denied,only, any final Environmental Impact the terms and conditions of the permitStatement become the finaldecison of the agency.

(5) Other documents contained in the -Public notie of any grant of review orasupporting file for the permit, including .- decision by the Administrator to takecorrespondence, telephone andmeeting review under paragraph (b) shall bememoranda,compliance reports, etc.; given as provided in § 124.11. Any suchand notice shall set forth a briefing schedule

(6) The final permit. for the appeal and shall state that any --(c) The additional documents required interested-person may file an amicus

under paragraph (b) shall be added to brief. Notice of denial ofreview shall bethe record as soon as feasible after their sent to the person(s) Tequesting review.receipt or publication by the Agency. 1d) The Administrator maydefer

(d) This section applies to all final consideration of an appeal under thisRCRA, UIC, PSD and.NPDES permits section until the completion ofwhere the draft permit was subject to proceedings under Subpart E or Fthe administrative record requirements relating to an NPDES permit issued toof § 124.10. the same source.

(e) Material readily available at the (e A petition to the Administratorissuing Regional Office or published ueA petition to th Adminis

mateialswhih ar geeraly aailale, under paragraph (a) of this section is,materials which are generally available, under 5 U.S.C. 704, a prerequisite to theand which are included in the seeking -ofjudipial reviewo f the finaladministrative record under the decision of the agency.standards of this section or of § 124.19("Response to Comments"), do not need (f)(1) Forpurposes ofjudicial reviewto be physically included in the same under the appropriate Act, final agencyfile as the rest of the record as long as it action occurs when a final RCRA, UICis specifically referencedin the or PSD permit is issued by EPA afteradministrative record or in the response Agency review procedures are-to comments. . exhausted. A final permit shall beprepared and issued by the Regional

§ 124.21 Appeal of RCRA, UIC and PSD Administrator (i) when thepermits. Administrator issues notice to the

(a) Within 30 days after a RCRA, UIC -parties that review has been denied ifor PSD permit has been issued under review is denied; (ii) when the§ 124.17, any person who filed Administrator issuesa decision ifcomments on that permit or participated review is not denied and thein the public hearing may petition the Administrator does mot remand theAdministrator to review any term or proceedings or (iii) upon the completioncondition of the permit. The thirty day of remand proceedings if theperiod within which a person may proceedings are remanded, unless therequest review under § 124.17 begins Administrator's Regional orderwith the postmark date of notice of the specifically provides that appeal of theRegional Administrator unless a later remand decision will be required indate is specified in such notice. The order to exhaust administrativepetition shall include a statement of the remedies.reasons supportingsuch review, (2) Notice of anyfinal actionregardingincluding a' demonstration that any a PSD permit shall promptly bepoints being raised were raised during published in the Federal Register.

§ 124.22 Additionaltlme after service bymail.

Whenever a party or interestedperson has the rightor is required to do,some act or take some proceeding.within a prescribed period after theservice bf noticeor other paper uponhinii or her by mail, three days shall beadded to the prescribed time.

Subpart B-Specific ProceduresApplicable to RCRA Permits

§ 124.31 Public notice of receipt ofapplication and availability of summary.

(a) Upon receipt of a complete RCRApermit application, including both Part Aand Part B, for major HWM facilities asdefind in § 122.Z(b), the RegionalAdministrator shall issue a public noticethat an application has been received.

(b) This notice, as a minimum shall bedistributed to the following:

(1) The appropriate State agency inthe State where the proposed hazardouswaste management facility will belocated;

(2) The chief executive or legislativeoffice of any county or municipalitywithin a 10 mile (16 km.) radius of theproposed facility;

(3) The public library serving thelocation of the facility;

(4) The applicant;(5) Any person on the mailing list

referred to in Section 124.11, and(6) Anyone else requesting it.(c) The public notice shall include the

following as a minimum:(1) Name and address of the facility

seeking a.permit;(2) Where complete copies of the

application are available for inspection:(3) The name of a person in the EPA

Regional office who can be contactedfor information or questions; and

(4) A statement that comments may besubmitted in writing to EPA on thecontent of the application, the adequacyof the information submitted,recommendations regarding approval ordisapproval of the permit, possiblepermit conditions, and other relatedmatters during the period of permitreview by EPA, and

15) A statement whether or not asummary of the application will beprepared and when any such summarywill be made available to personsrequesting it.

(6) That afterissuance of a draftpermit, all interested persons will begiven an opportunity to comment inaccordance with J 124.11.

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Subpart C-Specific ProceduresApplicabre-to: PSD Permits

§:124At Prqceduresfor small sources.

(a) The-procedures. in Subpart A shallnot apply to a source whoseincreasedallowable emissionsare less. than; 50tons:a year, 1,000 pounds.a day, orM100pounds an.hourjnstead, to. the extentpracticable, the RegionalAdministratorshalLmak e very- effort to: observe thelfollowing schedule: -

(1) Completion of the requiredanalyses and notice of the tentativedecision ta-issue or-deny the permitwithin- 3 days after receipt of a-complete application; and

(2) Completion of the publicparticipation process, to the extentrequired by § 5Z.21(r)3], within 45 daysafter-receipt of a complete applicatiomCbyAt the time- the-Regional

Administrator gives notice of his/hertentative decision, he/she shall alsoopen the comment period, ifnecessary,for 30Ldays. If no response is.receivedafter 15 days, no public hearing shalt beheld. Ifno: supportable concerns arereceived during the scheduled 30-daypublic commentperiod (or the publichearing, if oneis held) theRegionalAdministratorshall issue a finaldecisibmSubpart D-Specific Procedures

Applicable to NPDESPermits

§124.51 Purpose and scope.(a) This Subpart sets fortl additional

requirements and procedures for-decisionmaking for the.NPDES'program.

(b)-Decisions on.NPDES variancerequests wilg ordinarily be made duringthe permitissuance process. Fermitmodifications and other changes.i,permitterms willbe made generallythrough the same procedures that applyin making decisions on initial permits.&cr such decision mustmave throughthe- same procedures ofnotice-and-comment and potentiathearipgs as the.basinpermitf

§ 1245 Permits-requiredon a case-by.case basis:

(a4 Various sections of Part 122,SubpartD)- allw heDirector to"determine,, on a- case -hy-casebasi ,. thatcertain concentrated animal feedingoperations (§-12276),. concentrated.aquatic animal'production facilitieTC-1 22.771 separate storm:sewers(§ 122.79), and-certainmotherfacilitiescovered by general permits (§ 122.821ithat do:notgenerally require an,ind'idualpermintmay be required toobtain air-individual permit-becauseoftheir contribution to water pollution.

(b)Wheneverthe RegionalAdministrator decides that an. individualpermitshould be required.under thissection. the Regional Administratorshal inform the discharger in writing ofthat decision, the. reasons underlying itand-shalt include an application form insuch notice. The discharger must thenapply for a permit under § 12Z.64 within60 days of suclnotice. The questionwhether the initial designation wasproperwilUremair oper forconsideration: during the publiccommentperiod under E 124.11 and anysubsequent hearing.

§ 124.53 State certiffcation.(a):Under-sectiorr4l(a](l) of CWA.

EPA maynot issue-,a permituntil'acertification is granted or waived inaccordancewith that sectior by theStateo.fwhichtthe discharge-originatesor will originate.

(by When an applicationis receivedwhich doesnotincludLe- Statecertification, the Regional Administratorshallforward the applicatiorto thecertifying State agency with &requestthat certification be granted or denied.

(c) If State certification hasnotbeenreceived-by the time the- draftpermit is)prepared, the-Regional Administratorshall send the certifying Stateagency:

(.1):A copy-of a draft permit(21 Astatement that the EPA cannot

issue or deny the permit until thecertifying.State. agency has granted ordenied, certification under § 124.55, orwaived its right tn certify. and

(3) Astatement that therighLto certifywill. be deemed waived unless exercisedwithin a ipecifiedreasonable timwhich shall noL exceed, 60 days: from thedate the draftpermit is sent ta the Stateunless the RegionalAdministrator findsthat unusual circumstances require alongpx time.

(d].Any State certification shalLbeissued or denied within the reasonabletime specified under § 124.53(c)(3). TheState shall provide notice of its action,

'including a copy of any certification, to,the applicant and: the RegionalAdministrator.

(e) A.State certificatiomshalibe madein writing and shallinclude:

(1) The terms and conditions whichwill result i compliance-with theapplicableprovisions of sections208(e),301, 304, 303,.3OKancL307 ofCWAandwithiappropriata requirements of Statelaw;,

(2) Where the State certifies a draftpermit instead of an application, anyconditions;imore stringent than: those inthe draft permit, which theState.ficnecessary tdcomply-witltherequirementslisted in.subparagraphj i)..

For each such condition, the pmvision ofCWA orState-law which forms-thebasis for the condition shall beidentified. Failure to provide such astatement shall be deemed-a waiverothe right torcertify withrespect to-suckcondition; and:

(3) A statement with respectto-eachtenn andconditionof the draftpermit ofthe extentta whicksuch-term orcondition cairbe made lessstringentwithout violating therequirements ofStatelawincludingwaterqualitystandard& Failur* to providesuch astatementshall be deemed &' waiver ofthe right tr certify with respect to, anysuch less: stringent condition which maybe established duringthe EPApermitissuance process.

[CommerfrThL-requirement of paragraph(e)(3} of this sectiomis necessary to- enablerthe certiflcation ta serveitsstatutory functionwithoutrequiring continual resubmission tothe Stat,.For example. a State mighcertiythat draft permitcontaiinga technology-basecllnitation of 300 kg/day ofBOIwillmeet State water quality standards and otherState-law requirements. Hbowever ifduringthe permlLisuance rocessEPA-decides that400kg/day s theappropriatetechnologyrequirement. it is not dear atpresentwhefferthe previous State certification continues to-be valic It would-be Impracticable-andwould add to delayiapermiLissuance iEEPAresubmitted. ucipernits- to the State- eachtime the EPA considered setting a lessstringent limitation than contained in thedraft permit. The requirement thatStatesdearly Identify wbatconditions arenecessary to meet State lawwill simplify thepermitissuancwprocess andmakecerticaffomoreuseli]. However. Statesmaynot require EPA to ad-opt less stringentrequirements:. See § 12.54]

§ 124.54 Speclalprovlsionsfor State-certication and concurrence ofapplVcaffons forsection 301h1modfltcatfons.

(a) Wherean application for apermitincorporating a request under 30(hl ofCWA is submitted to.the State. theappropriate State official shall eithe=(1Deny therequestforthf-modifiect

permit undersection 301(hl (and sonotify theapplicant andEPA) andif theStateisan approved NP:DES State and.the permit is due for reissuance, proceedto procesthe permitapplication-undernormal procedures; or

(2) Forward. aMcertifltiommeeting therequirements af this; Subpart to theAdministratororapersordesignatedbythe Administratom

(b Where EPA issues a tentativedetermination or the requestformodification-permitunderCWA/section30th),andno certificationhas beenreceived underparagrapri a, theAdministratoror-a person designated by

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the Administrator shall forward thetentative determination to the State inaccordance with § 124.53(b) specifying areasonable time for State certificationand concurrence. If the State fails todeny or grant certification andconcurrence under paragraph (a) withinsuch r~asonable time, certification will -be deemed to be waived and the Statewill be deemed to have concurred in theissuance of a modified permit underCWA section 301(h).

(c) Any certification provided by aState under paragraph (a)(2) shallconstitute the State's concurrence (asrequired by section 301(h)) in theissuance of the section 301(h) modifiedpermit subject to any conditionsspecified therein by the State.

[Comment- CWA section 301(h)certification/concurrence under this sectionwill not be forwarded to the State by EPA forrecertification after the permit issuanceprocess. Accordingly, States must specify anycondit ions required by State law includingwater quality standards, in the certification.]

§ 124.55 Effect of State certification.(a) Where certification is required

under section 401(a)(1) of CWA, no finalpermit shall be issued:

(1) If certification is denied, or -

(2) Unless the final permitincorporates any requirements specifiedin the certification under § 124.53(d)(1)and (2).

(b) If the State law upon which acertification is based changes, or if aState court stays, vacates or remands acertification, a State which has issued acertification under § 124.53 may issue amodified certification or notice ofwaiver and forward it to EPA. If themodified certification is received priorto final Agency action on the permit, thepermit shall be issued consistent withany more stringent conditions which arebased upon State law identified in suchcertification. If the certification or noticeof waiver is received after final-Agencyaction on the permit, the RegionalAdministrator may modify the permitonly to the extent necessary to deleteany conditions based on a condition in acertification found invalid by a Statecourt.

(c) A State may not condition acertification or deny a certification onthe grounds that State law requires aless'stringent condition. The RegionalAdministrator shall disregard any suchcertification conditions, and willconsider such denials of certification toconstitute waivers of certification.I [Comment- State certification rights

proceed from the authority of States undersection 510 of CWA to set more stringentlimitations than those required by CWA.

States may not require EPA to disregard ordowngrade Federal requirements.]

(d) A permit may be modified duringAgency review in any manner consistentwith a certification meeting therequirements of § 124.53(d). No suchmodifications shall require EPA tosubmit the permit to the State forrecertification.

(e).Review and appeals of conditionsspecified by the State shall be madethrough the applicable procedures of theState and may not be made through theprocedures in this Part.

§ 124.56 Fact sheets.

(a) In addition to the requirementsof§ 124.9, NPDES fact sheets shall containthe following:

(1) Any calculations or oternecessary explanation of the derivationof specific effluent limitations andconditions, including a citation to theapplicable guideline or standardprovisions as required-under § 122.69and reasons why they are applicable oran explanation of how the alternateeffluent limitations were developed;

(2) Where appropriate, a sketch ordetailed description of the location ofthe discharge described in theapplication;

(3) For EPA-issued NPDES permits,the results of any State certificationunder § 124.53.

(b) In addition to the requirements of§ 124.9, the Director shall send all fabtsheets for NPDES permits to the DistrictEngineer of the Corps of Engineers, tothe Regional Director of the U.S. Fishand Wildlife Service and the NationalMarine Fisheries Service, to otherinterested State and Federal agencies(including EPA where the draft permit isprepared by the State), and to any otherperson on request. Any of these personsmay waive their right to receive noticefor any classes and categories ofpermits. 4

1

§ 124.57 Requirements for NPDES draftpermits incorporating section .301(h)modifications.

Sections 124.6,124.7, 124.8,124.9,124.10 and 124.56 are applicable to draftpermits incorporating section 301(h)modifications except that the terms"Administrator or a person designatedby the Regional Administrator" shall besubstituted for the term Director, asappropriate.

§124.58, Public notice.(a) In addition to the information

required under § 124.11 (c) and (d),mailed public notice of an NPDES draft.permit for a discharge where a CWA

section 316(a) application has been filedunder § 122.64(e) shall include:

(1) A statement that the thermalcomponent of the discharge is subject toeffluent limitations under sections 301 or306 of CWA and a brief descriptionincluding a quantitative statement of thethermal effluent limitations proposedunder sections 301 or 306; and

(2) A statement that a section 316(a)application has been filed and thatalternative less stringent effluentlimitations may be imposed on thethermal component'of the dischargeunder section 316(a) and a briefdescription including a quantitativestatement of the alternative effluentlimitations, if any, included In theapplication.

(3) If the applicant has filed an earlyscreening application under § 125.72 fora section 316(a) variance;a statementthat the applicant has submitted such aplan.

(b) Notice of the formulation of a draftgeneral permit under § 122.82 shallinclude:

(1) The requirements of § 124.11 (c)and (d), shall be concurrently publishedin a daily or weekly newspaper withinthe area affected by the discharge andin the Federal Register for EPA-issuedpermits in a manner constituting legalnotice under State law for State issuedpermits.

(2) The public notice for generalpermits shall also include:

(i) A brief description of the types ofactivities or operations to be covered bythe general permit;

(ii) A map or description of theGeneral Permit Program Area; and

(iII) The basis for choosing theGeneral Permit Program Area.

(3) The Director shall use all otherreasonable meang to notify affecteddischargers of the draft general permit.

(c) A public notice of an evidentlary)hearing under Subpart E shall containthe information required under§ 124.11(c): (e)(1) and (e)(3) and a mailedpublic notice shall also include:

(1) Reference to any public hearingunder § 124.12 on the disputed permit;

( (2) Name and address of the person(s)requesting the evidentiary hearing;

(3) Brief desoription of the permitterms and conditions which have beencontested and for which the evidentlaryhearing has been granted;

(4) Brief description of the nature andpurpose of the hearing including thefollowing declarations:

(i) Any person seeking to be a partymust file a request to be admitted as aparty to the hearing within 15 days ofthe date of publication of this notice;

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(ii Any person seeking-trbe apartymay, subjectto the requirements:of§ 124,76, propose material issues of factor law-not already raisedby the originalrequester or another party;

(fii]-The terms and conditions of thepermit(sjat issue-may beamended afterthe evid'entiary hearing'and any personinterested.in those permit(s) mustrequest tobea-party in order topreserve any right to appeal orotherwise contest-the-finaladministrative determinatiom

(5}Names or organizationaldbscription of the EPA employees whoshall constitute "Agency trial staff" andthe "decisional body" under § 124.78who are subject to the expartecommunication rules.

(6} The name, address and officetelephone number of the RegionalEearing, Clerk-

[d).Apublic notice for a draft permitthatwill be.processed under Subpart Fshall include the information inparagraphs Cc) and a statement that anyhearihgwill be heltunder the-non-adversary procedures for initiallicensing. In addition, a mailed publicnotice shallinclude:

(I],The informationmparagraph (dJexcept that a-public hearing-underparagraph (dJ(2) is-discretionary with-the RegionaLAdministrator;

(2) A statement that the permit will beprocessed under the nonadversary'procedures for initial licensing oflSubpart F, together with a briefdescription of those procedures. Thisdescription shall state explicitly themainer and- timingfor any person torequest ahearing on the permit. IEPAhas decided on its own motion to, hold ahearing, the notice shall so state, and,shall also contain. the information.requiredby E124-41(flW

(3 ,A statement that written commentsonthe draft permit and, in thecasea oEasection. 301(h) application, the tentativedetermination to.-grantor-deny theapplication submitted, to EPA withifnthirty (30) days of the date-of the noticewilLbe considered-by EPAinmaking afinal decision on the application This;30-day, period-may-beextendedupt 60days.s sponte or- or request of airinterested party,

(4) In the case of the public notice ofthe draft permit or denia olanapplicationfor a modified permit undersection.301(h)- shall inctude:

(iJ A summary of the information,contained in the -apphcatioand

[iA.summary of the tentativedetermination prepared under

(e)'A notice.ota grant ofa panel,hearing.requestedunder. SubpartLshall

include the applicable information fromparagraph (d). In addition, themafledpublic. notices shall include.

C11,Nameand address of the person,requesting the hearing, or a statementthat the-hearingis;being held:by order ofthe Regional Administrator,. and: thenameand address of each known partyto, the hearing,

(21 Names ororganizatior descriptionof the EPA employees who shallconstitute the "decisional-body" and. the"Agency trial staff," under § 124.78 whoare subject tothe exparlecommunication rules;

(3) A statement whether therecommended decision will be issued bythePresiding Ofcer orby the RegionalAdministrator,

(4),T ede date for filing a writtenrequest toparticipate in the hearingunder 1j124.117-;

(5)MThdue.date for filing commentsuhder §-12;118; and

(6) Thename; address, and officetelephone number of the RegionalHearingClerk.

§ 124.59- Termsrequestd bytheCorprofEngineers andother governmentalagpnces:

(a)During the comment period for anNPDES draft permit. if the-DistrictEngineer advises the Director in writingthat anchorage and navigation of any ofthewaters of the United States would'besubstantially-impaired' by thegranting ofia permit, the permit shall bedeniedand the applicant so notified7 Ifthe DistlntEngineer advises theDirector that imposing specifiedconditions upon thepermit is necessaryto avoidiany substantial impairment ofanchorage: or navigationi then the,Director shall include thespecifiedconditions in thepermit. Review-orappeal ofdenial ofE t permit or ofconditions specified by the District.Engineer shall be made through- theapplicable procedures.of the Corps ofEngineers, and may not bemade throughthe-proceduresprovide dLin: this part

(b) Ifuring thecomment peffod theU.S Fisl. an'Wildlif& Service, theNationaMarine-Fisheries Service, oranyotherState orFederal Agency withjurisdiction, over fish. wildlife or public.health adises the Director in writing,that the impositionm o specified,conditions upon. thepermiti necessaryto avoid substantial impairment of fish.shellfisk or wildliferesources, theDirectormayinchdethe specifred'conditions, iirthe permit to the extentthey ared'eterminednecessary to carryoutthleprovisions otQWA

(cT In appropriate cases, the Directormay, consult withzone ormore of the-

agencies referreditoimthis-section.before issuing a- draft. permit and mayreflect.their views in the statement ofbasis the fact sheet orthedraftpermit

§124.60 Issuance andeffective date of6.17OEspernI!

In addition to-theirequirements of§ 124.17, the folrowin&proiiona applyto NPDES permits.

(a) If a request for an evidentiaryhearing isgrantectunder §112A.75 or12.l(a)(3j regardingthe initial permitissued-for a new source or a newdischarger. oi7a petition fer review ofthe denat otarequest for anevidentiary hearingwitrespect ta sucha permit istimely firedwith.theAdministrator undter §124.101 the.applicant shalLbewithaut arpermit forthe, proposed new source ornewdischarge.peanding finsaAgency actionunder § .10m.

(hi Whether ornota draft NPDESpermiLtwas.formulated or finalpermitwas Issued the Regional Administrator,at any time prior to. tharendering of aninitial decision unan evidentiary hearingon that permit. may withdraw the permitin whole or impart and formulate a newdraft permiLunder §"1Z4.Taddressihgthe porions so withdrawn. The newdraft permit shallproceed' through- thesame process of public comment andopportunity for a publichearing, etc. aswold apply to any-other draft permitsubject to- thisFart Any-portions of thepermirwhich are not-withdrawn andwhich arenot stayed under- § 1z4.60shaltremain in effect

(c])1Ifa-request forehearing isgranted in whore or in partunderf 124.75 or 124.-11(a] (3-regarding a

permitforanexdsitingsource, orif apetitfon forreview oftheodenialof arequest for-an evidfentfary-hearngwithrespect tb-suclra permit-is tEmelyfiledwith the Administrdtor undler f 1z4n.1",the forceand effectofthe-contestedprovisions of the final permitshall bestayed andshall not besubfect tojudicialrevrew'under section.509(bl ofCWA, pending finarAgencyactioniunder §1Z4;1OL The-KegionalAdministrator shall servenotice, firaccordance with §1245.. orthedischarger an all parffes-fd'enfyingtheterms ofi the finalpermit which are-notcantadiandrthereforeara-enforceabreobligatioimofthedischarge.

(2 ere- effu hV mi nitrtfon .contested, but the uniferlrying controltechnology isnot thenotfce-sialFidentify the installation ofthe.technolbgyin-accordTancewitlrthe.permit compliance sched'ues. iTfunconrestedy as amuncontestedenforceable obhgatforr ofthepermig

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(3) Where a combination oftechnologies is contested, but a portionof the combination is not contested,such portion shall be identified asuncontested if compatible with thecombination of technologies proposedby the requester.

(4) A term or condition, otherwiseuncontested, shall not be identified asuncontested if it is inseverable from acontested term or condition.

(5) Uncontested terms and conditionsshall become enforceable 30 days afterthe date of such notice, provided,however,' that if a request for anevidentiary hearing on a term orcondition was denied and the denial isappealed under § 124.101, then suchterm or condition shall becomeenforceable upon the date of the noticeof the Administrator's decision on theappeal if the denial is affirmed, or shallbe stayed, in accordance with thissection, if the Administrator reverseg"the denial and giants the evidentiaryhearing on such permit term.

(6) Uncontested terms and conditionsshall include:

(i) Permit requirements for which anevidentiary hearing has been requestedbut the hearing has been denied;

(ii) Preliminary design and'engineering studies or otherrequirements necessary to achieve thefinal permit term or conditions which donot entail substantial expenditures;

(iii) Permit conditions which will haveto be met regardless of which partyprevails at the evidentiary hearing;

(iv) Where the discharger proposed aless stringent level of treatment thanthat contained in the final permit, anypermit conditions appropriate to meetthe levels proposed by the discharger, ifthe measures required to attain suchless stringent level of treatment areconsistent with the measure required toattain the limits proposed by theAgency; and

(v) Construction activities such assegregation of waste streams orinstallation of equipment which wouldpartially meet the final permit terms orconditions and could also be used to,achieve the discharger's proposedalternatives terms and conditions.

(d) Where an evidentiary hearing isgranted under§ 124.75 on an applicationfor a renewal of an existing permit, allprovisions of the existing permit, as wellas uncontested provi'sions of the newpermit, shall continue in full force andeffect until final Agendy action under§ 124.101. Upon written request from theapplicant, the Regional Administrator.may modify the existing permit to deleterequirements which unnecessarily

duplicate uncontested provisions of thenew permit.

[Comment. The following examplesdemonstrate the application of paragraphs (c]and (d):

Exbmple 1: The discharger requests and isgranted an evidentiary hearing on itscontention that the EPA's proposed effluentlimitation for total suspended solids (TSS) atlevel X is too stringent and should be relaxedto level Y. Treatment technology A attainslevel Y whereas technology A plus B isnecessary for level X. In this case, thedischarger's obligation to install technologyA is effective 30 days after service of thenotice under § 124.75(b) and this obligation isnot stayed by virtue of the contest as to theneed for additional technology B. Thedischarger would be required to comply withall portions of the compliance schedulerelating to design, construction andattainment of technology A, but would obtaina stay of such provisions with respect totechnology B. This Is true even if the scheduledoes not separate the two technologies. Thedischarger must of course also perform allbasic work such as segregation of wastestreams, site preparation, monitoring,reporting and initial construction becausethis will be necessary regardless of theoutcome of the contest. The additionalobligations of technology B are stayed.

Example 2 The same facts as in Example 1except that a public interest group has alsorequested and been granted participation inthe evidentiary hearing. The group intendsthat TSS level X is too leriient and should betightened to level Z. Treatment technology C,which is inconsistent with both A and Btechnologies, is required for level Z. In thiscase the discharger's obligation to installtechnologies A, A and B or C are all stayed.The discharger's obligations to perform basicwork such as segregation of waste streams,site preparation, monitoring, reporting and -

perhaps initial construction are not stayedbecause they-are unaffected by the contest.

Example 3: The discharger requests anevidentiary hearing on two issues: that thepermits total suspended solids (TSS) limitand pH-limit are each too strict The RegionalAdministrator grants the evidentiary hearingon the TSS issue but denies it on the pHclaim. The TSS and pH technologies areindependent and severable and thedischarger does not appeal the denial ofhearing on the pH control technology is notstayed and becomes effective 30 days after

-service of the Regional Administrator's noticeunder § 124.75(b). If the underlyingtechnology for the TSS limit is at issue, theTSS limitation is stayed. However, asdescribed in Example 1 and 2, thedischarger's obligations to perform all workunaffected by the stay (e.g., segregation ofwaste streams, site preparation, initialconstruction, etc.) are not stayed.I Example 4: The same facts as in Example 3that the equipment required for attaining thepH limit is achieved by the installation of theTSS equipment. In this the RegionalAdministrator may determine that the pHpermit term is inserverable from the TSScontest and thus the limits for bothparameters would be stayed by virtue of the

hearing on TSS, although as noted in thepreceding examples, the discharger'sobligations to perform all work unaffected bythe stay are not stayed. Noted however, thatif the pH limit Is achievable in an inexpensiveand temporary alternative such as additionalchemical treatment in the discharger'sexisting equipment, then the RegionalAdministrator may determine that the pHpermit term is severable and refuse to staythe pH term.

Example 5: The same facts as in Example 3except that the discharger appeals (to theAdministrator) the Regional Administrator'sdenial of the evidentiary hearing on Issue No.2 (the pH limit). In this case the pH linitationis also stayed (with the exceptions noted Inthe preceding examples) at least until theAdministrator's decision on such appeal, Ifthe Administrator affirms the denial of theevidentiary hearing on the pH limit then uponservice of notice under § 124.75(b) the stay

i terminates. If the Administrator reverses andthus grants the evidentlary hearing on the pHterm then the stay continues until finalAgency action.

(e) When issuing a finally effectivepermit under Subpart F, the RegionalAdministrator shall extend the permitcompliance schedule to the extentrequired by a stay under this section;provided that no such extension shall begranted which would:

(1) Result in the violation of anapplicable statutory deadline; or

(2) Cause the permit to expire morethan five years after issuance under§ 124.17(a).

[Comment: Extensions of complianceschedules will not automatically be grantedfor a period equal to the period the stay Is ineffect for an effluent limitation, For example,If both the Agency and the discharger agreethat a certain treatment technology Isrequired by the Act where guidelines do notapply, but a hearing is granted to consider theeffluent limitations which the technology willachieve, requirements regarding installationof the underlying technology will not bestayed during the hearing. Thus, unless theheaiing extends beyond the final compliancedate in the permit, it will not ordinarily benecessary to extend the compliance schedule.However, where application of an underlyingtechnology Is challenged, the stay forinstallation requirements relating to thattechnology would extend for the duration ofthe hearing.]

(f) For purposes of judicial reviewunder section 509(b) of CWA, finaladministrative action on a permit doesnot occur unless and until a party hasrequested and exhausted itsAdministrative remedies under SubpartsE and F and § 124.101. Any party whichneglects or fails to seek review under§ 124.101 thereby waives its opportunityto exhaust available Agency remedies.

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§ 124.61 Final environmental impactstatement

Nofinal NPDES permit for a newsource shall be issued until at least 30days after the date of issuance of a finalEnvironmental Impact Statement if oneis required under 40 CFR 6.916.

§ 124.62 Administrative Record.-Whether or not a draft or final permit

was prepared subject to theseregulations, the Regional Administrator,in any case where it appears during thecourse of an evidentiary hearing on apermit that significant new factorsaffecting that permit should beconsidered, may withdraw the contestedterms subject to the hearing and issue anew draft permit addressing those termsunder § § 124.6 or 124.7. Uncontestedterms shall remain in effect. The newdraft permit shall proceed through thesame process of public comment andopportunity for a public hearing, etc., aswould any other draft permit.

§ 124.63 Decision on Variances andModifications.

(a) The Director may grant or deny thefollowing modifications or variances(subject to EPA objection under § 123.78for State permits):

(1) Extensions under CWA section301(i) based on delay in completion of apublicly owned treatment works;

(2) After consultation with theRegional Administrator, extensionsunder CWA section 301(k) based on theuse of innovative technology; or

(3) Variances under CWA section316(a) for thermal pollution.

(b) The State Director may deny, orforward to the Regional Administratorwith a written concurrence or submit toEPA without recommendation acompleted application for.

(1) A variance based on the presenceof "fundamentally different factors"from those on which an effluentlimitations guideline was based;

(2) A variance based on the economiccapability of the applicant under section301(c) of CWA;

(3) A variance based upon certainwater quality factors under CWAsection 301(g); or

(4) A modification of CWA section302(b)(2) requirements under section302(a) (water quality related effluentlimitations).

(c) The Regional Administrator maydeny, or may forward to the EPA DeputyAssistant Administrator for WaterEnforcement with recommendation forapproval, an application for a variancelisted-m paragraph (b) which isforwarded by the State Director, orsubmitted to the Regional Administrator

by the applicant where EPA Is thepermitting authority.

(d) The EPA Deputy AssistantAdministrator for Water Enforcementmay approve or deny any varianceapplication submitted under paragraph(c). If the EPA Deputy AssistantAdministrator approves the variance,the Director may formulate a draftpermit incorporating the variance. Anypublic notice of a draft permit for whicha variance or modification has beenapproved or denied shall identify theapplicable procedures for appealing thatdetermination under § 124.54.

§ 124.64 Procedures for variances andmodifications where EPA Is the permitIssuing authority.

(a) In States where EPA is the.permltissuing authority andan application fora variance or modification Is filed asrequired by § 122.64, the applicationshall be processed as follows:

(1) If at the time an.application for avariance or modification is submittedthe Regional Administrator has receivedan application under § 124.3 for issuanceor renewal of that permit but has not yetformulated a draft permit under § 124.6covering the discharge in question, theRegional Administrator after obtainingany necessary concurrence of the EPADeputy Assistant Administrator forWater Enforcement under § 124.63, shallset forth a tentative determination onthe request at the time the draft permitis formulated as specified in § 124.6,unless this would significantly delay theprocessing of the permit. In that case theprocessing of the variance ormodification request may be separatedfrom the permit in accordance withparagraph (3), and the processing of thepermit shall proceed without delay.

(2) If at the time an application for avariance or modification Is filed theRegional Administrator has formulateda draft permit under § 124.6 covering thedischarge in question, but that permithas not yet become final, administrativeproceedings concerning that permit maybe stayed and the RegionalAdministrator shall formulate a newdraft pernit including a tentativedetermination on the request, and thefact sheet required by § 124.9. However,if this will significantly delay theprocessing of the existing permit or theRegional Administrator for otherreasons considers combining thevariance request and the existing permitinadvisable, the request may beseparatedfrom the permit in accordancewith paragraph (3), and theadministrative disposition of theexisting permit shall proceed withoutdelay.

(3) If the permit has become final andno application under § 124.3 concerningIt is pending or if the variance ormodification request has been separatedfrom a permit as described inparagraphs (1) and (2), the RegionalAdministrator shall formulate a newdraft permit under § 1246. This permitshall be accompanied by the fact sheetrequired by §§ 124.9 and 124.56 exceptthat the only matters considered shallrelate to the requested variance.

§ 124.65 Appeals of modifications andvariances.

(a) Normally, the appeals of permitdeterminations are handled in oneproceeding. either State or Federal.When a State issues a permit in whichEPA has made a variancedetermination, a separate appeal on thatdetermination is possible. In such cases,requests for appeal on the EPA permitconditions must be filed under Subpart Fafter the public notice of thegrant ordenial of the variance. If the owner oroperator is challenging issues in a Stateproceedings on the same permit, theRegional Administrator will decide, inconsultation with State officials, whichcase will be heard first.

(b) Appeals of modifications orvariance determinations shall begoverned by Subpart F unless theRegional Administrator determines thatconsolidation with an evidentiaryhearing under Subpart E will expediteconsideration of the issues presented.

[Comment. The panel proceedings ofSubpart F will generally be utilized whenthere is a State issued permit and only thevariance issues are in the Federal forum.]

cc) Stays for section 301(g) variances.Under the authority of CWA section31j)(2), if a request for an evidentiaryhearing is granted regarding a varianceunder CWA section 301(g), or if apetition for timely review of the denialof a request for an evidentiary hearing istimely filed with the Administratorunder § 124.101 with respect to such avariance, any otherwise applicablestandards and limitations under section301 of CWA shall not be stayed unless:

(1) In the judgment of the RegionalAdministrator, the stay or the variancesought will not result in the discharge ofpollutants in quantities which mayreasonably be anticipated to pose anunacceptable risk to human health orthe environment because ofbloaccumulation, persistency in theenvironment, acute toxicity, chronictoxicity, or synergistic propensities; and

(2) In the judgment of the RegionalAdministrator, there is a substantiallikelihood that the disharger willsucceed on the merits of its appeal; and

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(3) The discharger files any bond orother appropriate security which isrequired by the Regional Administratorto assure timely compliance with therequirements from which a variance issought in the event that the appeal isunsuccessful.

(d) Stays for variances ormodifications other than section 301(g)are granted pursuant to § 124.60.

§ 124.66 Special'procedures for dischargeInto marine waters section 301(h).(a)'Where it is clear on the face of a

section 301(h) application that thedischarge is not entitled to amodification, the application shall bedenied.

(b) In the case of all other section301(h) applications the Administrator, ora person designated by theAdministrator may either:

(1) Give written authorization to anapplicant to submit information requiredby Part 125, Subpart G or the finalapplication by a date certain, not toexceed 9 months, if:

(i) The applicant proposds to submitnew or additional information and theapplicant demonstrates that:

(A) The applicant made consistentand diligent efforts to obtain suchinformation prior to submitting the finalapplication;

(B) The failure to obtain suchinformation was due to circimstancesbeyond the control of the applicant; and

(C) Such information can be submittedpromptly; or

(ii) The applicant proposes to submitminor corrective information and suchinformation can be submitted promptly;or• (2) Make a written request of an

applicant to submit additionalinformation by a date certain, not toexceed 9 months, if such information isnecessary to issue a tentativedetermination under J 124.114(g).

All additional information authorizedor requested under this paragraph whichis timely received, shall be consideredpart of the original application.

(c) Applications for modificationsunder Section 301(h) shall be processedindependently of any pendingapplication for the issuance orreissuance of a permit requiring theapplicant to meet effluint limitationsbased on secondary treatment undersection 301(b)(1)(B).

(d) No modified permit shall be issuedgranting a section 301(h) modificationunless the appropriate State officialshave concurred or waived concurrence •pursuant to § 124.54. In the case of apermit issued to an applicant in anapproved State, the State Director may:

(1) Revoke any existinj permit as ofthe effective date of the EPA-issuedmodified permi; and-

(2) Co-sign the modified permit, if theDirector has indicated an intent to do soin the written concurrence.

(e) Appeals-of determinations undersection 301(h) shall be governed bySubpart F of this Part.,

§ 124.67 Special procedures for decisionson thermal variances (section 316(a)).

(a) Except as provided in § 124.66 theonly issues connected with issuance of a

-particular permit on which EPA willmake a final agency decision before thefinal permit is issued under § § 124.17ands 124.60 are whether alternativeeffluent limitations would be justified

* under CWA section 316(a) and whethercooling water intake structures will usethe best available technology undersection 316(b). Applicants who wish an

* early decision on these issues shouldrequest it and furnish supportingreasons at the tiie their applicationsare filed under § 122.64. The RegionalAdministrator will then decide whetheror not to grant it. If it is granted, both theearly decision on CWA section 316 (a)or (b) issues-and the grant of the balanceof the permit shall be considered permitissuance under these regulations, andshall be subject to the samerequirements of public notice andcomment and the same opportunity for

-an evidentiary hearing. I( (b) If the Regional Administrator, on

review of the admainistrative record,determines that the informationnecessary to decide whether or not analternative effluent limitation underCWA section 316(a) should be grantedto a source is not likely to be availableby the time a decision on permitissuance-must be made, the RegionalAdministrator may issue a permit under§ 124.17 for a term of up to five years.This permit-shall require that the pointsource achieve the effluent limitationsinitially proposed for the control of thethermal component of the discharge nolater than the date otherwise requiredby applicable legal requirements.However, the permit shall also affordthe permittee an opportunity to file ademonstration under CWA section316(a) after conducting such studies asaie required under 40 CFR Part 125,Sub parttIL

[Comnientr A New discharger may notcommence operation in violation of thethermal effluent limitation which are initiallyproposed unless and until the CWA section316(a) variance request is finally approved.]

(b) Any hearing scheduled underparagraph (a) shall be publicized asrequired by § 124.11 and shall be held

enough in advance of the finalcompliance date specified in the permitto allow the permittee to take necessarymeasures to comply by that date in theevent its request for modification ofthermal limits is eventually denied afterthe hearing is concluded.

(c) Whenever the RegionalAdministrator defers the determinationunder CWA section 316(a), anydetermination under section 316(b) maybe deferred.Subpart E-Evidentlary Hearings forEPA Issued NPDES Permits

§ 124.71 Applicability.The regulations in this Subpart govern

all evidentiary hearings conducted byEPA under section 402 of CWA, exceptas otherwise provided in Subpart F. Anevidentiary hearing is available tochallenge any permit issued under§ 124.17 except for a general permit.Persons affected by a general permitmay not challenge the terms andconditions of a general permit; but mayinstead apply for a individual NPDESpermit under § 122.64 as authorized In§ 122.82 and then request an evidentlarybearing on the issuance or denial of anindividual permit. In certain cases,evidentiary hearings may also be heldon the terms of RCRA, UIC and PSDpermits that are very closely linked withthe terms of NPDES permits as to whicha hearing has been granted. See§ 124.74(b)(2).

§ 124.72 Definitions.For the purpose of this Subpart, the

following definitions are applicable:(a) "Judicial Officer" means a

permanent or temporary employee of theAgency appointed as a Judicial Officerby the Administrator under theseregulations and subject to the followingconditions:

(1) A Judicial Officer shall be alicensed attorney. A Judicial Officershall not be employed in the Office ofEnforcement or the Office of Water andWaste Management, and shall notparticipate in the consideration ordecision of any case in which he or sheperformed investigative or prosecutorialfunctions.

(2) The Administrator may delegateany authority to act in an appeal of agiven case under this Subpart to aJudicial Officer who, in addition, mayperform other duties for EPA, providedthat the delegation shall not preclude aJudicial Officer from referring anymotion or case to the Administratorwhen the Judicial Officer decidesreferral would be appropriate. TheAdministrator, in deciding a case, may

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Federal Register I Vol. 44. No. 116 I Thursday, June 14, 1979 / Proposed Rules343

consult with and assign the drafting ofpreliminary findings of fact andconclusions and/or a preliminarydecision to any Judicial Officer.

(b) "Party" means the EPA trial staffunder § 124.78 and any person whoserequest for a hearing under § 124.74 orwhose request to be admitted as a partyor to intervene under § § 124.79 or124.117 has been granted.- (c) "Presiding Officer" means ailAdministrative Law Judge appointedunder 5 U.S.C. 3105 and designated topreside at the hearing.

(d) "Regional Hearing Clerk" meansan employee of the Agency designatedby a Regional Administrator to establisha repository for all books, records,documents and other materials relatingto hearings under this subpart.

§ 124.73 Filing and submission ofdocuments.

(a) All submissions authorized orrequired to be filed with the Agencyunder this Subpart shall be filed withthe Regional Hearing Clerk, unless theregulations provide otherwise.Submissions shall be considered filed onthe date on which they are mailed ordelivered in person to the RegionalHearing Clerk.

(b) All such submissions shall besigned by the person making thesubmission, or by an attorney or otherauthorized agent or representative.

(c)(1) All data and informationreferred to or in any way relied upon inany such submissions shall be includedin full and may not be incorporated byreference, unless previously submittedas part of the administrative record inthe same proceeding, except for State orFederal statutes and regulations, judicialdecisions published in a nationalreporter system, officially issued EPAdocuments of general applicability, andany othermaterial which is generallyavailable or of peripheral relevance, inwhich case the party relying on it shallfile a written undertaking to makecopies available as directed by theRegional Administrator or the PresidingOfficer.

(2) If any part of the materialsubmitted is in a foreign language, itshall be accompanied by an Englishtranslation verified under oath to becomplete and accurate, together with thename, address, and a brief statement ofthe qualifications of the person makingthe translation. Translations of literatureor other material in a foreign languageshall be accompanied by copies of theoriginal publication.

(3) Where relevant data orinformation is contained in a documentalso containing irrelevant matter, either

the irrelevant matter shall be deletedand only the relevant data orinformation shall be submitted or therelevant portions shall be brieflyindicated.

(4) The failure to comply with therequirements of this section or any otherrequirement in this Subpart may resultin the exclusion from consideration ofany portion of the submission whichfails to comply. If the RegionalAdministrator or the Presiding Officer,on motion by any party or sua sponte,determines that a submission falls tomeet any requirement of this Subpart,the Regional Administrator or PresidingOfficer shall direct the Hearing Clerk toreturn the submission with a copy of theapplicable regulations indicating thoseprovisions not complied with in thesubmission. The party proposing tosubmit any rejected materials shall have14 days to correct the errors andresubmit, unless the RegionalAdministrator or the Presiding Officerdetermines that there is good cause toallow a longer time.

(d) The filing-of a submission shall notmean or imply that it in fact means allapplicable requirements or that itcontains reasonable grounds for theaction requested or that the actionrequested is in accordance with law.

(e) The original of all statements anddocuments containing factual material,data, or other information shall besigned in ink and shall state the name,address and the representative capacityof the person making the submission.The signing shall comply with thesignature and certification procedures of§ 122.5.

§ 124.74 Requests for evidentiary hearing.(a) Within 30 days following the

service of notice of the RegionalAdministrator's issuance of a finalpermit under § 124.17, any interestedperson may submit a request to theRegional Administrator under paragraph(b) for an evidentiary hearing toreconsider or contest the terms of thatpermit. If such a request is submitted bya person other than the permittee, theperson shall simultaneously serve acopy of the request on the permittee.

(b)(1) In accordance with § 124.76,such requests shall state each legal orfactual question alleged to be at issue,and their relevance to the permitdecision, together with a designation ofthe specific factual areas to beadjudicated and the hearing timeestimated to be necessary for thatadjudication. Information supporting therequest or other written document reliedupon to support the request shall besubmitted as required by § 124.73 unless

It is already in the administrative recordrequired by § 124.20.

[Comment. This paragraph allows thesubmission of requests for evidentiaryhearings even though both legal and factualIssues may be raised, or only legal issuesmay be raised. In the latter case, because nofactual issues were raised. the RegionalAdministrator would be required to deny therequest. However, on review of the denial.the Administrator is authorized by§ 124.1M(a)(1) to review policy or legalconclusions of the Regional Administrator.EPA is requiring an appeal to theAdministrator even of purely legal issuesInvolved in a permit decision to ensure thatthe Administrator will have an opportunity toreview any permit before it will be final andsubject to judicial review.]

(2) Persons requesting an evidentiaryhearing on an NPDES permit under thissection may also request an evidentiaryhearing on a RCRA. UIC or PSD permit.Such a request is subject to all therequirements of paragraph (1) and inaddition will only be granted if each ofthe following conditions is met:

(i) Processing of the RCRA. UIC orPSD permit at issue was consolidatedwith the processing of the NPDES permitas provided in § 124.6[d);

(ii) The standards for granting ahearing on the NPDES permit are met;and

(ii) It Is likely that the issues raisedconcerning the NPDES permit will beresolved in a way that makesmodification of the RCRA or UIC permitappropriate.

(c) Such requests shall also contain:(1) The name, mailing address and

telephone number of the person makingsuch request;

(2) A clear and concise factualstatement of the nature and scope of theinterest of the requester;,

(3) The names and addresses of allpersons whom the requester represents;and

(4) A statement by the requesterthat.upon motion of any party, or sua sponteby the Presiding Officer and withoutcost or expense to any other party, therequester shall make available to appearand testify, the following:

(i) The requester(ii) All persons represented by the

requester, and(lii) All officers, directors, employees,

consultants and agents of the requesterand the persons represented by therequester.

(5) Specific references to thecontested permit terms and conditions,as well as suggested revised oralternative permit ferms and conditions(not excluding permit denial) which, inthe judgment of the requester, would be

Federal Register / Vol. 44, No. 116 / Thursday, June 14, 1979 / Proposed Rules34335




required to implement the purposes andpolicies of CWA.

(6) In thdcase of challenges to theapplication ofcontrol or treatmenttechnologies identified in the statementof basis or fact sheet, identification ofthe basis for the objection, and thealternative technologies or combinationof fechnologies which the requester,believes are necessary to meet therequirements of CWA.

(7) Specific identification of each ofthe discharger's obligations whichshould be stayed if the request isgranted. If the request contests morethan one permit term or condition theneach obligation which is proposed to bestayed must be referenced to theparticularcontested term warranting thEstay.

(d) The Regional Administrator (uponnotice to all persons who have alreadysubmitted hearing requests) may extendthe time allowed for submitting hearingrequests under this section forgoodcause.

§ 124.75 Decision on request for ahearing.

(a) Following the expiration of thetime allowed by § 124.74 for submittinga request for an evidentiary hearing, theRegional Administrator shall determinewhether the request shall be granted,denied or granted in part and denied inpart. The Regional Administrator shallgrant a request dither in whole or in partonly if the request conforms to thegequirements of § 124.74, and sets forthmaterial issues of fact relevant to theissuance of the permit.

(b) If the Regional AdministrAtorgrants a request for an evidentiaryhearing, in whole or in part, the RegionalAdministrator shall state and identifythe'permit terms and conditions whichhave been contested by the requesterand for which the evidentiary hearinghas been granted. Permit terms andconditions which are not contested orfor whIch the Regional Administratorhas denied the hearing request shall not-be affected by or considered at, theevidentiary hearing. The RegionalAdministrator shall specify these termsand conditions in writing in accordancewith § 124.60(e).

(c) If the Regional Administratorgrants a request for an evidentiaryhearing in whole or in part, in regard toa particular proposed permit, then anyother request for an evidentary hearingin regard to that permit shall be treatedas a request to be a party and theRegional Administrator shall grant anysuch request which meets therequirements of paragraph (a).

(d) If a request for a hearing is deniedin whole or in part, the RegionalAdministrator shall briefly state thereasons. That denial is then subject toreview by the Administrator under§ 124.101.

§ 124.76 Obligation to raise issues andsubmit evidence before a final permit IsIssued.

No evidence shall be submitted byany party to a hearing under thisSubpart that was not submitted to theadministrative record required by§ 124.20 as part of the formulation ofand comment on a draft permit, unlessgood cause is shown for the failure tosubmit it. No issues, shall be raised byany such party that were not submittedto the administrative record required by§ 124.20 as part ofthe formulation ofand comment on a draft permit unlessgood cause is shown for the failure tosubmit them. Good cause includes thecase where the party, seeking to raisethe new issues, or introduce newinformation, shows that it could notreasonably have ascertained the issuesor made the information availablewithin the time required by § 124.15.

§ 124.77 Notice of hearing. -

Public notice of the grant of anevidentiary hearing regarding a permitshall be given as provided in § 124.58(c)and in-addition by mailing a copy to allpersons who commented on the draftpermit or submitted a request for ahearing. Before the issuance of suchnotice the Regional Administrator shalldesignate the Agency trial staff and themembers of the decisional body (asdefined in § 124.78).

§ 124.78 Ex parte communications.(a)(1) No interested person outside the

Agency or member of the Agency trialstaff shall make or knowingly cause tobe made to any members of thedecisional body an expartecommunication relevant to the merits ofthe proceedings.

(2) No member of the decisional bodyshall make or knowingly cause to bemade to any interested person outsidethe Agency or member of the-Agencytrial staff an exparte communicationrelevant to the merits of theproceedings.

(3) A member of the-decision bodywho receives or who makes orknowingly causes to be made acommunication prohibited by theRegional Hearing Clerk, for the publichearings, all su6h writtencommunications or memoranda stating •the substance of all such oralcommunications together with all

written responses and memorandastating the substance of all oralresponses.

(b) Upon receipt by any members ofthe decisionmaking body of an expartecommunication knowingly made orknowingly caused to be made by a partyin violation of this section, the personpresiding at the stage of the hearing thenin progress may, to the extent consistentwith justice and the policy of CWArequire the party to show cause why itsclaim or interest in the proceedingsshould not be dismissed, denied,disregarded or otherwise adverselyaffected on account of such violation.

(c) The prohibitions of this sectionbegins to apply upon issuance of thenotice of the grant efa hearing under§ § 124.77 or 124.116. This prohibitionterminates at the date of final Agencyaction.

(d) For purposes of this section, thefollowing definitions shall apply:

(1) "Agency trial staff" means thoseAgency employees, whether temporaryor permanent, who have beendesignated by the Agency under§ § 124.77 or 124.116 as available toinvestigate, litigate and present theevidence, arguments and position of theAgency in the evidentiary hearing ornon-adversary initial licensing hearing.Appearance as a witness does notnecessarily require a person to bedesignated as a member of the Agencytrial staff;

(2) "Decisional body" means anyAgency employee who Is or mayreasonably be expected to be involvedin the decisional process of theproceeding including the Administrator,Judicial Officer, Presiding Officer, theRegional Administrator (if he does notdesignate himself as a member of theAgency trial staff) and any of theirdirect support staff participating in thedecisional process. In the case of anonadversary initial licensingproceeding, the decisional-body shallalso include the panel members whetheror not permanently employed by theAgency;

(3) "Exparte communication" meansany communication written or oralrelating to the merits of the proceedingbetween the decisional body and aninterested person outside the Agency orthe Agency trial staff where suchcommunication was not originally filedor stated in the administrative record orin the hearing. Exparte communicationsdo not include:

(i) Communications between Agencyemployees other than the Agency trialstaff and the members of the decisionalbody; -

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(iiDiscussions between thedecisional body and either

(A) Interested persons outside theAgency; or

(B] The Agency trial staff; if all partieshave received prior written notice ofsuch proposed communications andhave been given the opportunity to bepresent and participate therein.

(4) "Interested person outside theAgency" includes the permit applicant,any person who filed written commentsin the proceeding, any person whorequested the hearing, any person whorequested to participate or intervene inthe hearing, any participant or party intle hearing and any other interestedperson not employed by the Agency atthe time of the communications and theattorney of record for such persons.

§124.79 Additional parties and issues.

(a) Any person may submit a requestto be admitted as a party within 15 daysafter the date of mailing, publication orposting of notice of the grant of anevidentiary hearing, whichever occurslast. The Presiding Officer shall grantsuch requests as meet the requirementsof § § 124.74 and 124.76. Such requestmust specifically identify those issuesalready raised.which the requesterseeks to address at the hearing.

(b) After the expiration of the timeprescribed in paragraph (a) any personmay file a motion for leave to interveneas a party. This motion must meet therequirements of § § 124.74 and 124.76and set forth the grounds for theproposed intervention provided,however, that no factual or legal issuesin addition to those raised by timely-hearing requests may be proposedexcept for good cause. Any motion tointervene must also contain a verifiedstatement showing good cause for thefailure to file a timely request to beadmitted as a party. The RegionalAdministrator, or the Presiding Officer ifone has been assigned, shall grant suchmotion only upon an express finding onthe record that:

(1] Extraordinary circumstancesjustify granting the motion;

(2) The intervener has consented to bebound by:

(i) Prior written agreements andstipulations by and between the existingparties, and

(ii] All orders previously entered inthe pfbceedings; and'

(3) Intervention will not cause unduedelay or prejudice the rights of theexisting parties.

§ 124.80 Filing and service.

(a) An original and one (1) copy of allwritten submissions relating to an

evidentiary hearing filed after the noticeof hearing Is published shall be filedwith the Regional Hearing Clerk.

(b) The party filing any submissionshall serve a copy of such submissionupon the Presiding Officer and eachparty of record. Service shall be by mailor personal delivery.

(c) Every submission shall beaccompanied by an acknowledgment ofservice by the person served or proof ofservice in the form of a statement-of thedate, place, time, and manner of serviceand the names of the persons served,certified by the person who madeservice.

[Comment. A signed statement that anattached list of persons were mailed thesubmission Is sufficient to meet therequirements of this paragraph. Certified mallIs not required.]

(d) The Regional Hearing Clerk shallmaintain and furnish to any person uponrequest, a list containing'the name,service address and telephone numberof all parties and their attorneys or dulyauthorized representatives.

§ 124.81- Assignment of administrative lawludge.

No later than the date of mailing,publication or posting of the notice of agrant of an evidentiary hearing,whichever occurs last, the RegionalAdministrator shall refer the proceedingto the Chief Administrative Law Judgewho shall make an assignment of anAdministrative Law Judge to serve asPresiding Officer for the hearing.

§ 124.82 Consolidation and severance.(a) Th6 Administrator, Regional

Administrator or Presiding Officer, hasthe discretion to consolidate, in wholeor in part, two or more proceedings to beheld under this Subpart. whenever itappears thatA joint hearing on any or allof the matters in issue would expedite orsimplify consideration of the issues andthat no party would be prejudicedthereby. Consolidation shall not affectthe right of any party to raise issues thatmight have been raised had there beenno consolidation.

(b) If the Presiding Officer determinesconsolidation is not conducive to anexpeditious, full and fair hearing, anyparty or issues may be severed andheard separately.

§ 124.83 Prehearlngq conferences.(a) The Presiding Officer, sua sponte.

or at the request of any party, maydirect the parties or their attorneys orduly authorized representatives toappear at a specified time and place forone or more conferences before orduring a hearing, or to submit written

proposals or correspond for the purposeof considering any of the matters setforth in paragraph Cc).

(b) The Presiding Officer shall allow areasonable period before the hearingbegins for the orderly completion of allprehearing procedures and for thesubmission and disposition of allprehearing motions. Where thecircumstances warrant, the PresidingOfficer shall call a prehearingconference, to inquire into the lise ofavailable procedures contemplated bythe parties and the time required for-their completion, to establish a schedulefor their completion,oand to set atentative date for beginning the hearing.

Cc) In conferences held, or insuggestions submitted, under paragraph(a), the following matters maybeconsidered:

(1) The necessity or desirability ofsimplification, clarification,amplification or limitation of the issues.

(2) The admission of facts and of thegenuineness of documents, and thepossibility of stipulations with respect tofacts.

(3) The consideration of and rulingupon objections to the introduction intoevidence at the hearing of any writtentestimony, documents, papers, exhibits,or other submissions proposed by aparty, except that the administrativerecord required by § 124.20 shall bereceived in evidence subject to theprovisions of § 124.85(d}[2).Notwithstanding the foregoing, at anytime before the end of the hearing anyparty may make, and the PresidingOfficer shall consider and rule upon,-motions to strike testimony or otherevidence other than the administrativerecord on the grounds of relevance,competency or materiality.

(4) The identification of matters ofwhich official notice may be taken.

(5) The establishment of a schedulewhich includes defitite or tentativetimes for as many of the following as aredeemed necessary and proper by thePresiding Officer.

(i) The submission of narrativestatements of position on eachfactualissue in controversy; -

(I!) The submission of writtentestimony and documentary evidence(e.g., affidavits, data. studies, reportsand any other type of written material)in support of such statements; or

(iiI) The written requests to any partyfor the production of additionaldocumentation, data, or otherinformation relevant and material to thefacts in issue.

(6) The grouping of participants withsubstantially like interests for purposesof eliminating duplicative or repetitive

34337




development of the evidence andmaking and arguing motions andobjections.

(7) Such other matters as mayexpedite the hearing or aid in thedisposition of the matter.

(d) At a prehearing conference'orwithin'some reasonable time set by thePresiding Officer, each'party shall makeavailable to all other parties the namesof the expert and other witnesses itexpects to call. At its discretion-or at therequest of the Presiding Officer, a partymay include a brief narrative summaryof any witness's anticipated testimony.Copies of any written testimony,documents, papers, exhibits, ormaterials which a party expects tointroduce into evidence, and theadministrative record required by§ 124.20, shall be marked foridentification as ordered by thePresiding Officer. Witnesses, proposedwritten testimony and other evidencemay be added or amended only upon afinding by the Presiding Officer thatgood cause existed for failure tointroduce the additional or amendedmaterial within the time -specified by thePresiding Officer. Agency employeesand consultants shall bemade availableas witnesses by the Agency to the sameextent that production of such witnessesis required of other parties under§ 124.74(c)(4). (See also § 124.85(b)(16)).

(e) The Presiding Officer shall preparea written prehearing order reciting theactions taken at the prehearingconference and setting forth theschedule for the hearing, unless atranscript has bqen taken andaccurately reflects these matters. Theorddr shall include a written statementof the areas of factual agreement anddisagreement and of the methods andprocedures to be used in developing the,evidence and the respective duties ofthe parties in connection therewith. Thisorder shall control the subsequentcourse of the hearing unless modified bythe Presiding Officer for good causeshown.

§ 124.84 Summary determination.

(a) Any party to an evidentiaryhearing may move with or withoutsupporting affidavits and briefs for asummary determination in his or herfavor upon all or any part of the issuesbeing adjudicated on the basis that thereis not genuine issue of material fact fordetermination. Any such motion shall befiled at least 45 days before the date setfor the hearing, unless upon good causeshown such motion maybe filed at anytime before the close of the hearing.

(b) Any other party may, within 30days after service of the motion, file and

serve a response to it or acountermotion for summarydetermination. When a motion forsummary determination is made andsupported, a party opposing the motionmay not rest upon mere allegations ordenials but must show, by affidavit orby other materials subject to ,consideration by The Presiding Officer,that there is a genuine issue of materialfact for determination at the hearing.

(c) Affidavits shall be made onpersonal knowledge, shall set forth factsthat would be admissible in evidenceand shall show affirmativelr that theaffiant is competent to testify to thematters stated therein.

(d) The Presiding Officer has thediscretion to set thd matter for oralargument and call for the submission ofproposed fifidings, conclusions, briefs ormemoranda of law.°The PresidingOfficer shall rule on the motion not morethan 30 days after the date responses tothe motion are filed under paragraph (b)of this section.

(e) If all issues of material fact aredecided on a motion for summarydetermination, no hearing will be heldand the Presiding Officer shallthereupon prepare an initial decisionunder § 124.89. If the motion forsummary determination is denied or ifonly a partial summary determination isgranted, the Presiding Officer shall issuea memorandum opinion and order,interlocutory in character, and thehearing will proceed on the remainingissues. Appeals from interlocutoryrulings are governed by § 124.90.§ 124.85 Hearing procedure.

(a)(1) The permit applicant alwaysbears the burden of persuading theAgency that a permit authorizingpollutants to be discharged should beissued and not denied. This burden doesnot shift.

(2) The Agency has the burden ofgoing forward to present'an affirmativecase in support of any challenged termor condition of a final permit.

[Comment. In many cases the documentscontained in the administrative record, inparticular the fact sheet or'statement of basisand the response to comments shouldadequately discharge this burden.]

(3) Any hearing participant who, byraising material issues of fact, contends:

(i) That particular terms, conditions orrequirements in the permit are improperor invalid, and who -desires either:

(A) The inclusion of new or differentterms, conditions or requirements; or

(B) The deletion of such terms,conditions or requirements; or

(ii) That the denial or issuance of apermit is improper or invalid, shall have

the burden of going forward to presentan affirmative case.

(b) The Presiding Officer shall havethe authority and duty to conduct a fairand impartial hearing, to take action toavoid unnecessary delay in thedisposition of the proceedings, tomaintain order and all powersnecessary to these ends, including thepower to:

(1) Arrange and issue notice of thedate, time and place of hearings andconferences and;

(2) Establish the methods andprocedures to be used in thedevelopment of the evidence;

(3) Prepare, after considering theviews of the participants, writtenstatements of areas of factualdisagreement among the participants-

(4) Hold conferences to settle,simplify, determine or strike any of theissues in a hearing, or to consider othermatters that may facilitate theexpeditious disposition of the hearing

(5) Administer oaths and affirmations;(6) Regulate the course of the hearing

and govern the conduct of participants(7) Examine witnesses;(8) Identify and refer issues for

interlocutory decision under §-124.9&,(9) Rule on, admit, exclude, or limit

evidence;(10) Establish the time for filing

motions, testimony and other writtenevidence, briefs, findings, and othersubmissions;

(11) Rule on motions and otherprocedural matters pending before him,including but not limited to motions forsummary determination in accordancewith § 124.84;

(12) Order that the hearing beconducted in stages in cases where thenumber of parties is large or the issuesare numerous and complex;

(13) Take any action not inconsistentwith the provisions of this subpart forthe maintenance of order at the hearingand for the expeditious, fair andimpartial conduct of the proceeding;

(14) Provide for the testimony ofopposing witnesses to be heardsimultaneously or for such witnesses tomeet outside the hearing to resolve orisolate issues or conflicts;

(15) Order that trade secrets betreated confidential businessinformation in accordance with § 122.16and 40 CFR Part 2.

(16) Allow such cross-examination asmay be required for a full and truedisclosure of the facts. No cross-examination shall be permitted onquestions of law or policy, or regardingmatters (such as the validity of effluentlimitations guidelines) that are notsubject to challenge in an NPDES

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proceeding. No Agency witnesses shallbe required to testify or be madeavailable for cross-examination on suchmatters. In determining whether cross-examination shall be permitted the-Presiding Officer shall consider whetherit is not likely to result in clarifying orresolving a disputed issue of factmaterial to the decision, and whetherthe issue cai be more economicallyclarified in other ways. The partyseeking cross-examination has theburden of demonstrating that thisstandard has been met.

(c),All direct and rebuttal evidence atan evidentiary hearing shall besubmitted in written form, unless, uponmotion and good cause shown, thePresiding Officer determines that oralpresentation of the evidence on anyparticular fact will materially assist inthe efficient identification andclarification of the hearing issues.Written testimony shall be prepared innarrative form. To the extent thattestimomy is to be submitted in writing,the Presiding Officer may set dates forthe filing of such evidence with theRegional Hearing Clerk as follows:

(1) The participant with the burden ofgoing forward to present an affirmativecase upon an issue (as defined in§ 124.85(a) of these regulations) shall filehis direct testimony first.

(2) All participants other thanparticipants specified in the precedingsubsection shall file their directtestimony on said issue not later thantwenty days after the date of the filingof the testimony under the precedingsubsection.

(3) All rebuttal testimony shall be-filed no later than thirty days after thedate of the filing of the testimony underparagraph (c)(1).

(d)(1) The Presiding Officer shalladmit all relevant, competent andmaterial evidence, except evidence thatis unduly repetitious. Evidence may bereceived at any hearing even thoughinadmissible under the rules of evidenceapplicable to judicial proceedings. Theweight to be given evidence shall bedetermined by its reliability andprobative value.

(2) The administrative record requiredby § 124.20 shall be admitted andreceived in evidence. Any party maymove that a sponsoring witness beprovided for a portion or portions of theadministrative record. The PresidingOfficer, upon finding that the standardsfor cross-examination of § 124.85(b)(3)have been met and that theadministrative record taken as a whole -

indicates legitimate doubt about suchportion-of the record, shall grant suchmotion and direct the appropriate party

to produce such witness. If a sponsoringwitness cannot be provided, thePresiding Officer may reduce the weightafforded the appropriate portion of therecord as a factual statementaccordingly.

[Comment. Receiving the administrativerecord into evidence automatically servesseveral purposes: (1) it documents the priorcourse of the proceeding- (2) It provides arecord of the views of affected persons forconsideration by the agency declslon-maker;and (3) it provides factual material for use bythe decision-maker. Subject to § 124.78,parties are free to contest the factual portionsof the administrative record In the hearin&and to argue that portions of It should not begiven weight unless sponsored by a witnesswho will be available for cross-examination.]

(3) Whenever any evidence ortestimony is excluded by the PresidingOfficer as inadmissible, all suchevidence or testimony existing inwritten form shall remain a part of therecord as an offer of proo. The partyseeking the admission of oral testimonymay make an offer of proof, which shallconsist of a brief statement on therecord describing the testimonyexcluded.

(4) Where two or more parties havesubstantially similar interest andpositions, the Presiding Officer maylimit the number of attorneys or otherparty representatives who will bepermitted to cross-examine and to makeand argue motions and objections onbehalf of such parties. Attorneys may,however, engage in cross-examinationrelevant to matters not adequatelycovered by previous cross-examination.

(5) Rulings of the Presiding Officer onthe admissibility of evidence ortestimony, the propriety of cross-examination, and other proceduralmatters shall appear in the record andshall control further proceedings, unlessreversed as a result of an interlocutoryappeal taken under § 124.90.

(6) All objections shall be madepromptly or be deemed waived. Partiesshall be presumed to have takenexception to an adverse ruling. Noobjection shall be deemed waived byfurther participation in the hearing.

(e) Parties may at any time stipulateto relevant facts or to settlement.However, all settlements to which theAgency is a party must be approved bythe Deputy Assistant Administrator forWater Enforcement in accordance with§ 124.103.

§ 124.86 Motions.(a) Any party may make a motion,

(including a motion to dismiss aparticular claim on a contested issue], tothe Presiding Officer about any matter

relating to the proceeding. All motionsshall be filed and served as provided in§ 124.80 except those made on therecord during an oral hearing before thePresiding Officer.

(b) Within 10 days after service of anywrittertmotion, any party to theproceeding may file a response to themotion. The time forresponse maybeshortened to 3 days or extended for anadditional ten days by the PresidingOfficer for good cause shown.

(c) Notwithstanding § 122.60, anyparty may file with the Presiding Officera motion seeking to apply to the permitany regulatory or statutory requirementIssued or made available after theIssuance of the permit under § 124.17.The Presiding Officer shall grant anymotion to apply a new statutoryrequirement unless he or she finds itcontrary to legislative intent. ThePresiding Officer may grant a motion toapply a new regulatory requirementwhere appropriate to carry out thepurposes of CWA. andwhere no partywould be unduly prejudiced thereby.

§ 124.87 Record of hearings.(a) All orders issued by the Presiding

Officer, transcripts of oral hearings orarguments, written statements ofposition, written direct and rebuttaltestimony, and any other data, studies,reports, documentation, information andother written material of any kindsubmitted in the proceeding shall be apart of the record of the hearing, andshall be available except as provided in§ 122.16 to the public in the office of theRegional Hearing Clerk promptly uponreceipt in that office.

(b) Evidentiary hearings shall beeither stenographically reportedverbatim or tape recorded, ancthereupon transcribed. After thehearing, the reporter shall file with theRegional Hearing Clerk-

(i) The original of the transcript; and(if) The exhibits received or offered

Into evidence at the hearing.(c) The Regional Hearing Clerk shall

promptly notify each of the parties ofthe filing of the certified transcript ofproceedings. Any party who desires acopy of the transcript of the hearing mayobtain a copy of the hearing transcriptfrom the Regional Hearing Clerk andupon payment of costs.

The Presiding Officer shall allowwitnesses, parties, and their counsel anopportunity to submit written proposedcorrections of the transcript of any oraltestimony taken at the hearing. jointingout errors that may have been made intranscribing the testimony, as arerequired to make the transcript conformto the testimony.

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Except in unusual cases, no more thanthirty days shall be allowed forsubmitting such corrections from the daya complete transcript of the hearingbecomes available.

§ 124.88 Proposed findings of fact andconclusions; brief.

Within 45 days the certified transcriptis filed, any party may file with theRegional Hearing Clerk proposedfindings of fact and conclusions and abrief in support thereof, each containingappropriate reference to the record. Acopy of any such findings, conclusionsand brief shall be contemporaneouslyserved upon every other party and thePresiding Officer. The Presiding Officer,for good cause shown, may extend thetime for filing the propo'sed findings andconclusions and/or the brief. ThePresiding Officer may allow reply briefs.

§ 124.89 Decisions.(a) The Presiding Officer shall review

and evaluate the record, including theproposed findings and conclusions, anybriefs filed by the parties and anyinterlocutory decisions purstiant to§ 124.90 and shall issue and file hisinitial- decision with the RegionalHearing Clerk. The Regional HearingClerk shall immediately serve copies ofthe initial decision-upon all parties (ortheir counsel of record) and theAdministrator.

(b) The initial decision of thePresiding Officer shall automaticallybecome the final decision thirty (30)days after its service unless within suchtime.

(i) A party files a petition for reviewby the Administrator pursuant to§ '124.101; or

(ii) The Administrator sua sponte filesa notice that he or she will review thedecision pursuant to § 124.101; or

(c) If a hearing has been granted onterms or conditions of a RCRA, UIC orPSD permit under the standards setforth in § 124.74(b)(2), the initialdecision-of the Presiding Officer to thoseterms and conditions shall be in theform of recommendations to theRegional Administrator for changes tothe RCRA, UIC or PSD permit. The -'Regional Administrator shall modify theRCRA, UIC or PSD permit to the extenthe or she considers appropriate, and,explain his or her reasons for rejectingany recommendations of the PresidingOfficer, within thirty days of receipt ofthe Presiding Officer'srecommendations. The permit asmodified may be appealed to theAdministrator as provided in § 124.21.

§ 124.90 Interlocutory appeal.(a) Except as provided in this section,

appeals to theAdministrator may betaken only under § 124.101. Appealsfrom orders or rulings may-be takenunder this section only if the PresidingOfficer, upon motion of a party, certifiesthose orders or rulings to theAdministrator for appeal on the record.Requests to the Presiding Officer forcer'cation must be filed in writingwithin ten days of service of notice ofthe order, ruling, or decision and shallstate briefly the grounds relied on.

(b) The Presiding Officer may certifyan order or ruling for appeal to theAdministrator if.

(1) The order or ruling involves animportant question on which there issubstantial ground for difference ofopinion; and

(2) Either:(I) An immediate appeal of the order

or ruling will materially advance theultimate completion of the preceeding,or,

(ii) A review after the final order isissued will be inadequate or ineffective;and,

(3) Such an appeal is necessary toprevent exceptional delay, expense orprejudice to any party.

(c) To the extent an appeal under thissection involves issues of law, theAdministrator shall refer those issues tothe General Counsel for determinationsubject to his or her approval.

(d) If the Administrator decides thatcertification was improperly granted, heor she shall decline to hear the appeal.The Administrator shall accept ordecline all interlocutory appeals within30 days of their submission; if theAdministrator takes no action withinthat time, the appeal shall be considereddismissed. When the Presiding Officerdeclines to certify an order or ruling tothe Administrator for an interlocutoryappeal, it may be reviewed by theAdministrator only upon appeal fromthe initial decision of the PresidingOfficer, except when the Administratordetermines, upon motion of a party andin exceptional circumstances, that todelay review would not be in the publicinterest. Such motion shall be madewithin five days after receipt ofnotification that the Presiding Officerhas refused to certify an order or rulingfor interlocutory appeal to theAdministrator. Ordinarily, theinterlocutory appeal will be decided onthe basis of the submissions made to thePresiding Officer. The Administratormay, however, allow briefs and oralargument.

(e) The Presiing Officer may stay theproceeding pending a decision by the

Administrator upon an order or rulingcertified by the Presiding Officer for aninterlocutory appeal, or upon the denialof such certification by the PresidingOfficer. Only in exceptionalcircumstances will proceedings bestayed.

(i) The failure to request aninterlocutory appeal shall not foreclosea party from taking exception to anorder or ruling in an appeal under§ 124.101.

§ 124.101 Appeal to the Administrator.(a)(1) Within 30 days after service of

an initial decision, or the denial inwhole or in part of a request for anevidentiary hearing, any party orrequester, as the case may be, mayappeal any matter set forth in suchinitial decision or denial, any adverseorder or ruling to which the partyobjected during the hearing by filingwith the Administrator notice of appealand petition for review. Proof of serviceupon all parties shall accompany suchfiling. The petition shall include astatement of the supporting reasons forsuch exceptions and, where appropriate,a showing that the initial decisioncontains:"

(i) A finding of fact or conclusion oflaw which is clearly erroneous, or

(ii) An exercise of discretion or policywhich is important and which theAdministrator should, in his discretion,review.

(2) Within 15 days after service of apetition for review under paragraph(a)(1), any other party to the hearing Inquestion may file a responsive petition.

(3) Policy or legal conclusions made inthe course of denying a request for anevidentiary hearing may be reviewedand changed by the Administrator in anappeal under this section.

(b) Within 30 days of an initialdecision or denial of an evldeiitiary

,hearing the Administrator may, suasponte, review such decision. Withinseven (7) days after the Administratorhas decided under this sectio'n to reviewan initial decision or the denial of anevidentiary hearing, notice of thatdecision shall be served by mail uponall affected parties and the RegionalAdministrator.

(c) Within a reasonable time followingthe filing of the petition for review, theAdministrator shall issue an order eithergranting or denying the petition forreview. When the Administrator grants'a petition for review or determinesunder paragraph (b) to review adecision, the Administrator may notifythe parties that only certain Issues shallbe briefed.

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(d) Notwithstanding the grant of apetition for review or a determinationunder paragraph (b) to review adecision, the Administrator maysummarily affirm without opinion aninitial decision or the denial of anevidentiary hearing.

(e) To the extent an appeal under thissection involves issues of law, theAdministrator shall refer those issues tothe General Counsel for determinationsubject to his approval.

(If) A petition to the Administratorunder paragraph (a) for review of anyinitial decision or the denial of anevidentiary hearing is, under 5 U.S.C.704, a prerequisite to the seeking ofjudicial review of the final decision ofthe Agency.

(g)(1] If a party timely files a petitionfor review or if the Administrator suasponte orders review, then,ifor purposeof judicial review under section 509(b) ofCWA, final Agency action on an issueoccurs after EPA review procedures areexhausted and the Administrator'sdecision is issued as follows:(i) If the Administrator denies review

or gummarily affirms without opinion asprovided in § 124.101(d), then the initialdecision ordenial becomes the finalAgency action and occurs upon theservice or notice of such decision.

(ii) If the Administrator issues adecision without remanding theproceeding then the final permit,redrafted as required by theAdministrator's decision, shall bereissued and served upon all parties tosuch appeal in accordance withparagraph (21.

(iii) If the Administrator issues adecision remanding the proceeding thenfinal Agency action occurs uponcompletion of the remanded proceeding,including any Administrator appealstherefrom.

(2) For purposes of judicial reviewunder section 509(b) of CWA, finalagency action occurs 10 days after afinal permit is issued. After Agencyreview procedures are exhausted a finalpermit shall be prepared and issued bythe Regional Administrator.

(i) When the Administrator issuesnotice to the parties that review hasbeen denied if review is denied;

(ii) When the Administrator issues adecision if review is not denied and theAdministrator does not remand theproceedings; or

(iii) Upon the completion of remandproceedings if the proceedings areremanded unless the Administrator'sremand order specifically provides thatappeal of the remand decision will berequired in order to extendadministrative remedies.

(h) The petitioner may file a brief insupport of the petition within 21 daysafter the Administrator has granted apetition for review. Any other party mayfile a responsive brief within 21 days ofservice of a brief in support of thepetition. The petitioner may file a replybrief within 14 days of service of theresponsive brief and any person may filean amicus brief for the consideration ofthe Administrator. If the Administratordetermines, sue sponte, to review aninitial Regional Administrator's decisionor the denial of an evidentiary hearing,the Administrator shall notify theparties of the briefing schedule.

(i) Review by the Administrator of aninitial decision or the denial of anevidentiary hearing shall be limited toissues specified under paragraph (a) ofthis section, except after notice to allparties, the Administrator may raise anddecide other matters which he or sheconsiders material on the basis of therecord.

§ 124.102 Applicability of subpart E.(a) All the provisions of this subpart

except § 124.76, § 124.83[c)(3) and§ 124.85(d)(1) concerning the automaticreceipt of the administrative record intoevidence shall apply to all hearings forwhich the notice of hearing under§ 124.77 Is issued after the effective dateof these regulations, provided that thePresiding Officer at any such proceedingmay vary or suspend any of the terms ofthese regulations during a six-monthtransitional period after their effectivedate to avoid inconvenience or injustice.

(b) Section 124.76 and the provisionsof §§ 124.83(c)(3) and 124.85(dJ(1) forautomatic receipt of the administrativerecord into evidence shall apply to allhearings regarding a permit which wasbased on an administrative record under§§ 124.20 and 124.62.

§ 124.103 EPA headquarters approval ofstipulation or consent agreement.

No evidentiary hearing under SubpartE may be resolved, settled or decided, ineither whole or substantial part, by thestipulation or consent of the partiesthereto, unless and until the stipulationor consent is approved and signed bythe Deputy Assistant Administrator forWater Enforcement.

No stipulation or consent withoutsuch approval and signature shall bindEPA or have any force or effect or befiled in any proceeding.Subpart F-Non-AdversaryProcedures for NPDES Initial Licensing

1124.111 Applicability.(a) Except as set forth in this Subpart,

this Subpart applies in lieu of, and to the

complete exclusion of. Subparts Athrough E in the following cases:

(1) In all-proceedings for the issuanceof a modified permit under section301(h) of the Clean Water Act, exceptthat in such proceedings:

(I) The terms "Administrator or aperson designated by theAdministrator" shall be substituted forthe term "Regional Administrator"; and

(2) In any proceedings for the issuanceof any other NPDES permit whichconstitutes "initial licensing" under theAdministrative Procedure Act, where-the Regional Administrator elects toapply this Subpart and explicitly sostates in the public notice of the draftpermit. If an NPDES draft permit isprocessed under this Subpart, any otherdraft permits which have beenconsolidated with the NPDES draftpermit under § 124.6(d) shall likewise beprocessed under this Subpart.

(3) The parties to an evidentiaryhearing that would otherwise be heldunder Subpart E may agree to conductthat hearing in accordance with thig-Subpart. Any applicant for an NPDESpermit which is not an initial licensemay request when requesting anevidentiary hearing under § 124.74 thatIts application be processed under theprocedures of this Subpart. If theRegional Administrator agrees with thisrequest, and if a hearing is granted thenotice of the hearing issued under§ 124.116 shall include a statement thatthe permit will be processed under theprocedures set forth in this Subpartunless a written objection is receivedwithin 30 days stating the reasons. If nosuch objection Is received, theapplication shall be processed inaccordance with §§ 124.117-124.121 ofthis Subpart, except that any referenceto a draft permit shall be taken asreferring to the final permit. If anobjection ts received, Subpart E shall beapplied instead.

(b) "Initial licensing" includes boththe first grant of an NPDES permit to adischarger that has not previously held aNPDES permit and the first decision onany variance applied for by adischarger.

1124.112 Relation to other subparts.The following provisions of Subparts

A through E apply to procedures underthis Subpart:

(a)(1) Sections 124.1 through 124.11(2) Section 124.18;(3) Section 124.22.(c)(1) Section 124.54 'Terms requested

by the Corps of Engineers and otherGovernment Agencies".

(2) Section 124.61 "Finalenvironmental impact statement".

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(3) Section 124.6e "Decision-onvariances and modifications".

(d)(1).Section 124.72 "Definitions".(2) Section 124.73 "Filing".(3) Section 124.78 "Ex parte

communications".(4) Section 124.80 "Filing and service".(5) Section 124.85(a) (Burden of proof);(6) Section 124:86 "Motions"; and(7) Section 124.87 "Record of

hearings".(8) Section 124.90 "Interlocutory

appeal".

§ 124.113 Publicnotice regarding draftpermits and permit conditions.

Public notice of the formulation of adraft permit under this Subpart shall begiven as provided in § § 124.11- and124.58. At the discretion of the RegionalAdministrator, the comment periodspecified in this notice may include anopportunity for a public hearing under§ 124.12.§ 124.114 Request for hearing; request toparticipate In a hearing.

(a) By the close of the comment periodset forth in § 124.113, any person mayrequest the Regional Administrator tohold a panel hearing on the draft permitby submitting d written requestcontaining the following:

(1) A brief statement of the interest ofthe person requesting the hearing;

(2) A statement of any objections tothe draft permit;

(3) A statement of the issues whichsuch person proposes to raise forconsideration at such hearing; and

(4) Statements meeting therequirements of § 124.74(c)(1)-(5).

(b) Whenever (1) a written requestsatisfying the requirements of paragraph(a) of this section has been received andpresents genuine issues of material fact,or (2) the Regional Administratordetermines sua sponte that a hearingunder this Subpart is necessary orappropriate, the Regional Administratorshall serve writterfnotice of thedetermination on each person requestingsuch hearing and the applicant, andshall provide public notice of thedetermination in accordance with§ 124.58(e). If the RegionalAdministrator determines that a requestfiled under paragraph fa)-of this sectiondoes not comply with the requirementsof paragraph (a) or does not presentgenuine issues of fact, the RegionalAdministrator may deny the request forthe hearing and shall serve writtennotice of such determination on allpersons requesting the hearing.

(c) The Regional Administrator mayalso decide before a draft permit isissued that a hearing should be held

under this Part. At the discretion of the-Regional Administrator the notice mayprovide for a hearing under § 124.13before a panel hearing is held, providedthat no cross-examination under§ 124.14 shall be permitted. When such ahearing is to be held, the notice of theformulation of the draft permit under§ 124.113 shall so state.

§ 124.115 Effect of denial of, or absenceof, request for hearing.

If no request for a hearing is madeunder § 124.114, or if all such requestsare denied under that section, the draftpermit shall be treated procedurally as ifit were a recommended decision issuedunder § 124.124 of this Subpart, exceptthat for purposes of §§ 124.125 and124.126 the term "hearing participant" or"person who participated in thehearing" shall be construed to mean theapplicant and any person whosubmitted'comments under'§ 124.58(d).

§ 124.116 Notice of hearing.(a) Upon granting a request for a

hearingunder.§ 124.114 the RegionalAdministrator shall promptly publish anotice-of the hearing as required under§ 124.58(e). The mailed notice shallinclude a statement which indicateswhether the Presiding Officer or theRegional Administrator will issue therecommended decision.

§ 124.117 Request toparticipate inhearing.

(a) Each person desiring to participatein any hearing noticed under thissection, shall file a motion to participatewith the Regional Hearing Clerk by thedeadline set forth in the notice of thegrant of the hearing. The request shallinclude:

(1) A brief statement of the interest ofthe person in the proceeding;

(2) A brief outline 6f the points to beaddressed;

(3) An estimate of the time required;and

(4) The requirements of § 124.74(c)(1)-(5). •

(5) If the request is submitted by anorganization, a non-binding list of thepersons to take part in the presentation.As soon as practicable, but in no eventlater than two weeks before thpscheduled date of the hearing, thePresiding Officer shall make a hearingschedule available to the public andshall mail it to each person whorequested to participate in the hearing.

§ 124.118 Submission of writtencomments on draft permit.

(a) No later than 30 days before thescheduled start of the hearing (or suchother date as may be set forth in the

notice of hearing), each party shall fileall of its comments on the draft permit,based on information in theadministrative record and any otherinformation which is or reasonablycould have been available to thatperson. All comments shall Include anyaffidavits, studies, data, tests or othermaterials relied upon for making anyfactual statements in the comments.

(b)(1) Written comments filed underparagraph (a) shall constitute the bulk ofthe evidence submitted at the hearing.Oral statements at the hearing should bebfief and in the nature of argument.They shall be restricted either to pointsthat-could not have been made inwritten comments, or to emphasizepoints which are made in the comments,but which the participant believes canbe more effectively argued in thehearing context.

(2) Notwithstanding the foregoing,within two weeks prior to the deadlinespecified in paragraph (a) for the filingof main comments, any party who hasfiled a request to participate in thehearing may move to submit all or partof its comments orally at the hearing inlieu of submitting written comments andthe Presiding Officer shall, within oneweek, grant such motion if the PresidingOfficer finds that such person will beprejudiced if required to submit suchcomments in written form.

(c) Parties to any hearing may submitwritten material in response to thecomments filed by other participantsunder paragraph (a) at the time theyappear at the panel stage of the hearingunder § 124.120.

§ 124.119 Presiding officer.(a)(1) Upon the granting of a request

for hearing the Regionql Administratorshall, as soon as practicable, requestthat the Chief Administrative Law Judgeassign an Administrative Law Judge asPresiding Officer. TheChiefAdministrative Law Judge shallthereupon make such assignment.

(2) If all parties to the hearing waivein writing their statutory right to havethe persons identified in paragraph (a)preside at the hearing, the RegionalAdministrator shall name a lawyerpermanently or temporarily employedby the Agency and without priorconnection with the proceeding to serveas Presiding Officer.

(b) It shall be the duty of the PresidingOfficer to conduct a fair and impartialhearing. The Presiding Officer shall havethe authority:

(1) Conferred by § 124.85(b)(1)-(15),§ 124.83 (b) and (c), and

(2) To receive relevant evidence,provided that all comments, under

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§ 124.118, the record of the panel hearingunder § 124.120, and the administrativerecord, as defined in § 124.10 (or in thecase of voluntary use of theseprocedures under § 124.111(a)(3), theadministrative.record for the finalpermit under § 124.20 and § 124.62) shallbe received in evidence.

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

each hearing held under this SubpartAn EPA panel shall also take part in thehearing. The panel shall consist of threeor more EPA temporary or permanentemployees having special expertise inareas related to the-hearing issue, atleast two of whom shall not have takenpart in preparing the draft permit. Ifappropriate for the evaluation of new ordifferent issues presented at the hearing,the panel membership may change ormay include persons not employed bythe EPA.

(b) At the time of the hearing noticepursuant to § 124.116, the RegionalAdministrator shall designate thepersons who shall serve as panelmembers for the hearing and theRegional Administrator shall file withthe Regional Hearing Clerk the name,address and area of expertise of eachperson so designated. The RegionalAdministrator may also designate EPAemployees who will provide staffsupport to the panel but whb may ormay not serve as panel members. Suchdesignated persons shall be subject tothe exparte rules in § 124.78. TheRegional Administrator may also-designate Agency trial staff as definedin § 124.78 for the hearing.

(c) At any time before the close of thehearing, the Presiding Officer, afterconsultation with the panel, may requestthat any person having knowledgeconcerning the issues raised in thehearing and not then scheduled toparticipate therein appear and testify atthe hearing. -

(d) The panel members may questionany person participating in the panelhearing. Cross-examination by personsother thanpanel members shall not bepermitted at this stage of the proceedingexcept where the Presiding Officerdetermines, after consultation with thepanel, that such cross-examinationwould expedite consideration of theissues. However, the parties may submitwritten questions to the Presiding -Officer for the Presiding Officer to askthe participants, and the PresidingOfficer may, after consultation with thepanel, and at his or her sole discretion,ask these questions.

(e) At any time before the close of thehearing, any person may submit to the

Presiding Officer written questionsspecifically directed to any personappearing or testifying in the hearing.The Presiding Office, after consultationwith the panel may, at his sole °

discretion, ask the written question sosubmitted.

(f) Within ten days after the close ofthe hearing, any of the participants shallsubmit such additional writtentestimony, affidavits, information ormaterial as such participant deemsrelevant or which the panel may requestof such participant These additionalsubmissions shall be filed with theRegional Hearing Clerk and shall be apart of the hearing record.

§ 124.121 Opportunity for cross-examination.

(a) Any participant in a panel hearingmay submit a written request to cross-examine on any issue of material fact.The motion shall be submitted to thePresiding Officer within 15 days after afull transcript of the panel hearing isfiled with the Regional Hearing Clerkand shall specify:

(1) The disputed issue(s) of materialfact regarding which cross-examinationis requested. This shall include anexplanation of why the questions atissue are factual, rather than of ananalytical or policy nature, the extent towhich they are in dispute in light of therecord made up to that stage of therecord, and the extent to which they arematerial to the decision on theapplication; and

(2) The person(s) a participant desiresto cross-examine, and an estimate of thetime necessary. This shall include astatement as to why the cross-examination will result in resolving theissue of naterial fact involved.

(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 suchrequest If any request for cross-examination is granted, the order shallbe served on all hearing participantsand shall specify:

(1) The issues on which cross-examination is granted;- (2) The persons to be cross-examined

on each issue;(3] The persons allowed to conduct

cross-examination;(4) Time limits for the examination of

witnesses by each cross-examiner, and(5) The date, time and place of the

supplementary hearing at which cross-examination shall take place.

In issuing this ruling, the PresidingOfficer may determine that one or more

participants have the same or similarinterests and that to prevent undulyrepetitious cross-examination, theyshould be required to choose a singlerepresentative for purposes of cross-examination. In such a case, the ordershall simply assign time for cross-examination by that singlerepresentative without identifying therepresentative further. If saidparticipants with the same or similarinterests shall fail to designate suchsingle representative, then the PresidingOfficer shall divide the assigned timeamong the representatives of suchparticipants or issue such other order asjustice may require. -

(c) The Presiding Officer and to theextent possible, the members of thehearing panel, shall be present at thesupplementary hearing. During thecourse of the hearing, the PresidingOfficer shall have authority to modifyany order issued under paragraph (b) ofthis section. A record willbe madeunder § 124.87.

(d(1) No later than the time set forrequesting cross-examination, a hearingparticipant may request that alternativemethods of clarifying the record (such asthe submission of additional writteninformation) be used in lieu of or inaddition to cross-examination. ThePresiding Officer shall issue an ordergranting or denying such request at thetimehe issues (or would have issued) anorder under paragraph (b) of thissection. If the request is granted, theorder shall specify the alternativeprovided and any other relevantinformation (e.g., the due date forsubmitting written information).

(2) In passing on any request forcross-examination submitted underparagraph (a) of this section. thePresiding Officer may, as a preconditionto ruling on the merits of such request,require alternative means of clarifyingthe record to be used whether or not arequest to do so has been made underthe immediately preceding paragraph.The person requesting cross-examination shall have one week to"comment on the results of utilizing suchalternative means, following which thePresiding Officer, as soon as practicable,shall issue an order granting or denyingsuch person's request for cross-examination.

(e) The provisions of § 124.85(d)(2)apply to proceedings under this Subpart

§ 124.122 Record for final permit.(a) The record on which the final

permit shall be based in-any proceedingunder this Subpart (ofiler than aproceeding by consent of the partiesunder § 124.111(a][3)) consists of



34344 Federal Register / Vol. 44, No. 116 / Thursday, June 14, 1979 / Proposed Rulesr

(1) The administrative recordcompiled under § 124.20;

(2) Any material submitted under§ 124.78 relating to exparte contracts.

(3) All notices issued under § 124.113;(4) All requests for hearings, and

rulings on those requests received orissued under § 124.114;

(5) Any notice of hearing issued under§ 124.116;

(6) Any request to participate in thehearing received under § 124.117;

(7) All comments, submitted under§ 124.118, any motions made under thatsection and the rulings on them, and anycomments filed under § 124.113(b)(9);

(8) The full transcript and othermaterial received into the record of thepanel hearing under § 124.120;

(9) Any motions for, or rulings, oncross-examination filed or issued§ 124.121;

(10) Any motions for, orders for andthe results of, any alternatives to cross-examination under § 124.121;

(11) The full transcript of any cross-examination held; and

(b) In any proceedings under thisSubpart involving a permit which is notan initial license and which areconducted under § 124.111(a)(3), therecord for decision shall consist of.

(1) The administrative record under§124.20 or § 124.62;

(2) All requests for hearing submittedunder § 124.74, and all rulings on thoserequests; and

(3) The items spdcified insubparagraphs (a)(4) through (a)(11) ofthis section.

§ 124.123 Filing of brief, proposedfindings of fact and conclusions of law andproposed modified permit.

Unless otherwise ordered by thePresiding officer, each party may, within20 days after all requests for cross-examination are denied or after atranscript of the full hearing includingany cross-examination becomesavailable, submit proposed findings offact; conclusions regarding materialIssues of law, fact, or discretion; aproposed modified NPDES permit (ifsuch person is urging that the draftpermit should be modified); and a briefin support thereof; together withreferences to relevant pagbs oftranscript and to relevant exhibits.Within 10 days thereafter each partymay file a reply brief concerning matterscontained in opposing briefs andcontaining alternative finding's of fact;conclusions regarding material issues oflaw, fact, or discretibn; and a proposedmodified permit- Oral argument may beheld at the discretion of the Presiding

Officer on Motion of any party or suasponte.

§ 124.124 Recommended decision.The person named to prepare the

decision shall, as soon as practicableafter the conclusion of the hearing,evaluate the record of the hearing andprepare and file a recommendeddecision with the Regional HearingClerk That person may consult with,and receive assistance from, anymember of the hearing panel in draftingthe recommended decision, and maydelegate the preparation of therecommended decision to the panel or toany member or members of it. Thisdecision shall contain findings of fact,conclusions regarding all material issuesof law, and a recommendation as towhether and in what respect the draftpermit shall be modified. After therecommended decision has been filed,the Regional Hearing Clerk shall serve acopy of such decision on each party andupon the Administrator.

§ 124.126 Appeal from or review ofrecommended decision.

(a)(1) Within 30 days after service ofthe recommended decision, any partymay take exception to any matter setforth in such decision or to any adverseorder or ruling of the Presiding Officer towhich such party objected, and mayappeal such exceptions to theAdministrator as provided in § 124.101.Except that references to "initialdecision" will mean recommendeddecision under § 124.124.

§124.126 Final decision.

As soon as practicable after all appealproceedings have been completed, theAdministrator shall issue a finaldecision. Such final decision shallinclude findings of fact; conclusionsregarding material issues of law, fact, ordiscretion, as well as reasons therefor,and a modified NPDES permit to theextent appropriate. It may accept orreject all or part of the recomniendeddecision. The Administrator maydelegate some or all of the work ofpreparing this decision to a person orpersons without substantial priorconnection with the matter. TheAdministrator or his designee mayconsult with the Presiding Officer,members of the hearing panel or anyother EPA employee in preparing thefinal decision. The Hearing and RecordClerk shall file a copy of the decision onall hearing participants.

§ 124.127 Final decision if there is noreview.

If no party appeals a recommendeddecision to the Administrator, and if the

Administrator does not elect to reviewit, the recommended decision Is deemedthe final decision of the Agency uponthe expiration of the time for filing anyappeals.

§ 124.126 Delegation of authority;, timelimitations.

(a) The Administrator may delegate toa Judicial Officer any or all of his or herauthority to act under this Subpart.

(b) The failure of the Administrator,Regional Administrator or PresidingOfficer to do any act within the timeperiods specified herein shall not beconstrued as a waiver or in derogationof any rights, powers or authority of theUnited States Environmentdl ProtectionAgency.

(c) Upon a showing by any party thatit has been prejudiced by a failure of thoAdministrator, Regional Administrator,or Presiding Officer to do any act withinthe time periods specified herein, theAdministrator, Regional Administrator,or Presiding Officer, as the case may be,may grant such party such relief of aprocedural nature (including extension6f any time for compliance or otheraction) as may be appropriate.

§ 124.129 EPA headquarters approval ofstipulation or consent agreement.,

No non-adversary initial licensinghearing under Subpart F may beresolved, settled or decided, in eitherwhole or substantial part, by thestipulation or consent of the partiesthereto, unless and until the stipulationor consent is approved and signed bythe Deputy Assistant Administrator forWater Enforcement.

No stipulation or consent withoutsuch approval and signature shall bindEPA or have any force or effect or befiled in any proceeding.[FR Doc. 79-18204 Flied 3-13-7. &45 amjBILING CODE 6560-01-M



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