Current through Register Vol. 48, No. 9, September 27, 2024
In addition to the conditions established under
section122.43(a)(a), each NPDES permit shall include conditions meeting the
following requirements when applicable.
(a)
(1)
Technology-based effluent limitations and standards based on effluent
limitations and standards promulgated under section301 of the CWA, new source
performance standards promulgated under section 306 of CWA, or case-by-case
effluent limitations determined under section402(a)(1)(a)(1) of CWA, or a
combination of the three, in accordance with section 125.3. For new sources or
new dischargers, these technology based limitations and standards are subject
to the provisions of section 122.29(d)(d) (protection period).
(2) Monitoring waivers for certain
guideline-listed pollutants.
(i) The
Department may authorize a discharger subject to technology-based effluent
limitations guidelines and standards in an NPDES permit to forego sampling of a
pollutant found at 40 CFR Subchapter N if the discharger has demonstrated
through sampling and other technical factors that the pollutant is not present
in the discharge or is present only at background levels from intake water and
without any increase in the pollutant due to activities of the
discharger.
(ii) This waiver is
good only for the term of the permit and is not available during the term of
the first permit issued to a discharger.
(iii) Any request for this waiver must be
submitted when applying for a reissued permit or modification of a reissued
permit. The request must demonstrate through sampling or other technical
information, including information generated during an earlier permit term that
the pollutant is not present in the discharge or is present only at background
levels from intake water and without any increase in the pollutant due to
activities of the discharger.
(iv)
Any grant of the monitoring waiver must be included in the permit as an
expressed permit condition and the reasons supporting the grant must be
documented in the permit's fact sheet or statement of basis.
(v) This provision does not supersede
certification processes and requirements already established in existing
effluent limitations guidelines and standards.
(b)
(1)
Other effluent limitations and standards under section s301, 302, 303, 307(a),
318 and 405 of CWA. If any applicable toxic effluent standard or prohibition
(including any schedule of compliance specified in such effluent standard or
prohibition) is promulgated under section 307(a) of CWA for a toxic pollutant
and that standard or prohibition is more stringent than any limitation on the
pollutant in the permit, the Department shall institute proceedings under these
regulations to modify or revoke and reissue the permit to conform to the toxic
effluent standard or prohibition. See also section 122.41(a)(a).
(2) Standards for sewage sludge use or
disposal under section 405(d)(d) of the CWA unless those standards have been
included in a permit issued under the appropriate provisions of subtitle C of
the Solid Waste Disposal Act, Part C of Safe Drinking Water Act, the Marine
Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, or
under State NPDES permit programs approved by the Administrator. When there are
no applicable standards for sewage sludge use or disposal, the permit may
include requirements developed on a case-by-case basis to protect public health
and the environment from any adverse effects which may occur from toxic
pollutants in sewage sludge. If any applicable standard for sewage sludge use
or disposal is promulgated under section 405(d)(d) of the CWA and that standard
is more stringent than any limitation on the pollutant or practice in the
permit, the Department may initiate proceedings under these regulations to
modify or revoke and reissue the permit to conform to the standard for sewage
sludge use or disposal.
(c) Reopener clause:
(1) For any permit issued to a treatment
works treating domestic sewage (including "sludge-only facilities"), the
Department shall include a reopener clause to incorporate any applicable
standard for sewage sludge use or disposal promulgated under section 405(d)(d)
of the CWA. The Department may promptly modify or revoke and reissue any permit
containing the reopener clause required by this paragraph, if the standard for
sewage sludge use or disposal is more stringent than any requirements for
sludge use or disposal in the permit or controls a pollutant or practice not
limited in the permit.
(2) A permit
may include a reopener referring to a permit modification reasonably foreseen
based on expected revision to law or regulation or based on the expectation of
receipt of information when either of these would be the basis for a
modification under R.61-9.122.62.
(d) Water quality standards and State
requirements: any requirements in addition to or more stringent than
promulgated effluent limitations guidelines or standards under section s301,
304, 306, 307, and 318, and 405 of CWA necessary to:
(1) Achieve water quality standards
established under section 303 of the CWA, including State narrative criteria
for water quality.
(i) Limitations must
control all pollutants or pollutant parameters (either conventional,
nonconventional, or toxic pollutants) which the Department determines are or
may be discharged at a level which will cause, have the reasonable potential to
cause, or contribute to an excursion above any State water quality standard,
including State narrative criteria for water quality.
(ii) When determining whether a discharge
causes, has the reasonable potential to cause, or contributes to an in-stream
excursion above a narrative or numeric criteria within a State water quality
standard, the permitting authority shall use procedures which account for
existing controls on point and nonpoint sources of pollution, the variability
of the pollutant or pollutant parameter in the effluent, the sensitivity of the
species to toxicity testing (when evaluating whole effluent toxicity), and
where appropriate, the dilution of the effluent in the receiving
water.
(iii) When the permitting
authority determines, using the procedures in paragraph (d)(1)(ii) of this
section, that a discharge causes, has the reasonable potential to cause, or
contributes to an in-stream excursion above the allowable ambient concentration
of a State numeric criteria within a State water quality standard for an
individual pollutant, the permit must contain effluent limits for that
pollutant.
(iv) When the permitting
authority determines, using the procedures in paragraph (d)(1)(ii) of this
section, that a discharge causes, has the reasonable potential to cause, or
contributes to an in-stream excursion above the numeric criterion for whole
effluent toxicity, the permit must contain effluent limits for whole effluent
toxicity.
(v) Except as provided in
this subparagraph, when the permitting authority determines, using the
procedures in paragraph (d)(1)(ii) of this section, toxicity testing data, or
other information, that a discharge causes, has the reasonable potential to
cause, or contributes to an in-stream excursion above a narrative criterion
within an applicable State water quality standard, the permit must contain
effluent limits for whole effluent toxicity. Limits on whole effluent toxicity
are not necessary where the permitting authority demonstrates in the fact sheet
or statement of basis of the NPDES permit, using the procedures in paragraph
(d)(1)(ii) of this section, that chemical-specific limits for the effluent are
sufficient to attain and maintain applicable numeric and narrative State water
quality standards.
(vi) Where the
Department has not established a water quality criterion for a specific
chemical pollutant that is present in an effluent at a concentration that
causes, has the reasonable potential to cause, or contributes to an excursion
above a narrative criterion within an applicable State water quality standard,
the permitting authority must establish effluent limits using one or more the
following options:
(A) Establish effluent
limits using calculated numeric water quality criterion for the pollutant which
the permitting authority demonstrates will attain and maintain applicable
narrative water quality criteria and will fully protect the designated use.
Such a criterion may be derived using a proposed State criterion, or an
explicit State policy or regulation interpreting its narrative water quality
criterion, supplemented with other relevant information which may include:
EPA's Water Quality Standards Handbook, October 1983, risk assessment data,
exposure data, information about the pollutant from the Food and Drug
Administration, and current EPA criteria documents; or
(B) Establish effluent limits on a
case-by-case basis, using EPA's water quality criteria, published under
section307(a)(a) of the CWA, supplemented where necessary by other relevant
information; or
(C) Establish
effluent limitations on an indicator parameter for the pollutant of concern,
provided:
(1) The permit identifies which
pollutants are intended to be controlled by the use of the effluent
limitation;
(2) The fact sheet
required by R.61-9.124.56 sets forth the basis for the limit, including a
finding that compliance with the effluent limit on the indicator parameter will
result in controls on the pollutant of concern which are sufficient to attain
and maintain applicable water quality standards;
(3) The permit requires all effluent and
ambient monitoring necessary to show that during the term of the permit the
limit on the indicator parameter continues to attain and maintain applicable
water quality standards; and
(4)
The permit contains a reopener clause allowing the permitting authority to
modify or revoke and reissue the permit if the limits on the indicator
parameter no longer attain and maintain applicable water quality
standards.
(vii) When developing water quality-based
effluent limits under this paragraph, the permitting authority shall ensure
that:
(A) The level of water quality to be
achieved by limits on point sources established under this paragraph is derived
from, and complies with all applicable water quality standards; and
(B) Effluent limits developed to protect a
narrative water quality criterion, a numeric water quality criterion, or both,
are consistent with the assumptions and requirements of any available wasteload
allocation for the discharge prepared by the State and approved by EPA pursuant
to
40
CFR 130.7.
(2) Attain or maintain a specified water
quality through water quality related effluent limits established under
section302 of CWA;
(3) Conform to
the conditions to a State certification under R.61-101 and section 401 of the
CWA.
(4) Conform to applicable
water quality requirements under section 401(a)(2)(a)(2) of CWA when the
discharge affects a State other than the certifying State:
(5) Incorporate any more stringent
limitations, treatment standards, or schedule of compliance requirements
established under Federal or State law or regulations in accordance with
section 301(b)(b))(1)(C) of CWA;
(6) Ensure consistency with the requirements
of a Water Quality Management plan approved by EPA under section 208(b)(b) of
CWA;
(7) Incorporate
section403(c)(c) criteria under R.61-9.125 Part M, for ocean
discharges;
(8) Incorporate
alternative effluent limitations or standards where warranted by "fundamentally
different factors," under R.61-9.125 Part D;
(9) [Reserved]
(e) Technology-based controls for toxic
pollutants. Limitations established under paragraphs (a), (b), or (d) of this
section, to control pollutants meeting the criteria listed in paragraph (e)(1)
of this section. Limitations will be established in accordance with paragraph
(e)(2) of this section. An explanation of the development of these limitations
shall be included in the fact sheet under R.61-9.124.56(b)(1)(i)(b)(1)(i).
(1) Limitations must control all toxic
pollutants which the Department determines (based on information reported in a
permit application under section122.21(g)(7)(g)(7) or in a notification under
section 122.42(a)(1)(a)(1) or on other information) are or may be discharged at
a level greater than the level which can be achieved by the technology-based
treatment requirements appropriate to the permittee under R.61-9.125.3(c)(c);
or
(2) The requirement that the
limitations control the pollutants meeting the criteria of paragraph (e)(1) of
this section will be satisfied by:
(i)
Limitations on those pollutants; or
(ii) Limitations on other pollutants which,
in the judgement of the Department, will provide treatment of the pollutants
under paragraph (e)(1) of this section to the levels required by
125.3(c).
(f)
Notification level. A "notification level" which exceeds the notification level
of section 122.42(a)(1)(i), (ii) or (iii)(a)(1)(i), (ii) or (iii), upon a
petition from the permittee or on the Department's initiative. This new
notification level may not exceed the level which can be achieved by the
technology-based treatment requirements appropriate to the permittee under
R.61-9.125.3(c)(c).
(g) Twenty-four
hour reporting. Pollutants for which the permittee must report violations of
maximum daily discharge limitations under section
122.41(l)(6)(ii)(C)(l)(6)(ii)(C) (24-hour reporting) shall be listed in the
permit. This list shall include any toxic pollutant or hazardous substance, or
any pollutant specifically identified as the method to control a toxic
pollutant or hazardous substance.
(h) Durations for permits, as set forth in
section 122.46.
(i) Monitoring
requirements. In addition to section 122.48, the following monitoring
requirements:
(1) To ensure compliance with
the permit and protection of the environment, requirements to monitor:
(i) The mass (or other measurement specified
in the permit) for each pollutant limited in the permit and as necessary to
characterize any other pollutant, which may be in the wastewater, which has a
significant potential to have an effect on the environment or operation of
treatment or disposal facilities,
(ii) The volume of effluent discharged from
each outfall;
(iii) Other
measurements as appropriate including pollutants in internal waste streams
under section 122.45(h)(h), pollutants in intake water for net limitations
under section 122.45(g)(g); frequency, rate of discharge, etc., for
noncontinuous discharges under section 122.45(e)(e); pollutants subject to
notification requirements under section 122.42(a)(a); and pollutants in sewage
sludge or other monitoring as specified in R.61-9.503 or R.61-9.504; or as
determined to be necessary on a case-by-case basis pursuant to
section405(d)(4)(d)(4) of the CWA.
(iv) According to sufficiently sensitive test
procedures (i.e., methods) approved under 40 CFR Part 136 for the analyses of
pollutants or pollutant parameters or required under 40 CFR chapter I,
subchapter N or O.
(A) For the purposes of
this paragraph, a method is "sufficiently sensitive" when:
(1) The method minimum level (ML) is at or
below the level of the effluent limit established in the permit for the
measured pollutant or pollutant parameter; or
(2) The method has the lowest ML of the
analytical methods approved under 40 CFR Part 136 or required under 40 CFR
chapter I, subchapter N or O for the measured pollutant or pollutant parameter.
Note to paragraph (i)(1)(iv)(A):
Consistent with 40 CFR Part 136, applicants or permittees
have the option of providing matrix or sample specific minimum levels rather
than the published levels. Further, where an applicant or permittee can
demonstrate that, despite a good faith effort to use a method that would
otherwise meet the definition of "sufficiently sensitive," the analytical
results are not consistent with the QA/QC specifications for that method, then
the Department may determine that the method is not performing adequately and
the Department should select a different method from the remaining EPA-approved
methods that is sufficiently sensitive consistent with
40
CFR 122.44(i)(1)(iv)(A).
Where no other EPA-approved methods exist, the Department should select a
method consistent with section 122.44(i)(1)(iv)(B).
(B) In the case of pollutants or
pollutant parameters for which there are no approved methods under 40 CFR Part
136 or methods are not otherwise required under 40 CFR chapter I, subchapter N
or O, monitoring shall be conducted according to a test procedure specified in
the permit for such pollutants or pollutant parameters.
(2) Except as provided in
paragraphs (i)(4) and (i)(5) of this section, requirements to report monitoring
results shall be established on a case-by-case basis with a frequency dependent
on the nature and effect of the discharge but in no case less than once a year.
For sewage sludge use or disposal practices, requirements to monitor and report
results shall be established on a case-by-case basis with a frequency dependent
on the nature and effect of the sewage sludge use or disposal practice;
minimally this shall be as specified in R.61-9.503 (where applicable) but in no
case less than once a year. All results must be electronically reported in
compliance with 40 CFR Part 3 (including, in all cases, subpart D to Part 3),
section 122.22, and 40 CFR Part 127.
(3) Requirements to report monitoring results
for storm water discharges associated with industrial activity which are
subject to an effluent limitation guideline shall be established on a
case-by-case basis with a frequency dependent on the nature and effect of the
discharge, but in no case less than once a year.
(4) Requirements to report monitoring results
for storm water discharges associated with industrial activity (other than
those addressed in paragraph (i)(3) of this section) shall be established on a
case-by-case basis with a frequency dependent on the nature and effect of the
discharge. At a minimum, a permit for such a discharge must require:
(i) The discharger to conduct an annual
inspection of the facility site to identify areas contributing to a storm water
discharge associated with industrial activity and evaluate whether measures to
reduce pollutant loadings identified in a storm water pollution prevention plan
are adequate and properly implemented in accordance with the terms of the
permit or whether additional control measures are needed;
(ii) The discharger to maintain for a period
of three years a record summarizing the results of the inspection and a
certification that the facility is in compliance with the plan and the permit,
and identifying any incidents of non-compliance.
(iii) Such report and certification be signed
in accordance with section 122.22 and
(iv) Permits for storm water discharges
associated with industrial activity from inactive mining operations may, where
annual inspections are impracticable, require certification once every three
years by a Registered Professional Engineer that the facility is in compliance
with the permit, or alternative requirements.
(5) Permits which do not require the
submittal of monitoring result reports at least annually shall require that the
permittee report all instances of noncompliance not reported under
section122.41(l)(1), (4), (5) and (6)(l)(1), (4), (5) and (6) at least
annually.
(j)
Pretreatment program for POTWs. Requirements for POTWs to:
(1) Identify, in terms of character and
volume of pollutants, any Significant Industrial Users discharging into the
POTW subject to Pretreatment Standards under section 307(b)(b) of CWA and
R.61-9.403.
(2)
(i) Submit a local program when required by
and in accordance with R.61-9.403 to assure compliance with pretreatment
standards to the extent applicable under section 307(b)(b). The local program
shall be incorporated into the permit as described in R.61-9.403. The program
must require all indirect dischargers to the POTW to comply with the reporting
requirements of R.61-9.403.
(ii)
Provide a written technical evaluation of the need to revise local limits under
R.61-9.403.5(c)(1)(c)(1), following permit issuance or reissuance.
(3) For POTWs which are
"sludge-only facilities," a requirement to develop a pretreatment program under
R.61-9.403 when the Department determines that a pretreatment program is
necessary to assure compliance with section 405(d)(d) of the CWA.
(k) Best management practices
(BMP) to control or abate the discharge of pollutants when:
(1) Authorized under section 304(e)(e) of CWA
for the control of toxic pollutants and hazardous substances from ancillary
industrial activities;
(2)
Authorized under section 402(p)(p) of the CWA for the control of storm water
discharges;
(3) Numeric effluent
limitations are infeasible; or
(4)
The practices are reasonably necessary to achieve effluent limitations and
standards or to carry out the purposes and intent of the CWA.
Note to paragraph (k)(4):
Additional technical information on BMPs, and the elements
of BMPs, is contained in the following documents: Guidance Manual for
Developing Best Management Practices (BMPs), October 1993, EPA No.
833/B-93-004, NTIS No. PB 94-178324, ERIC No. W498); Storm Water Management for
Construction Activities: Developing Pollution Prevention Plans and Best
Management Practices, September 1992, EPA No. 832/R-92-005, NTIS No. PB
92-235951, ERIC No. N482); Storm Water Management for Construction Activities,
Developing Pollution Prevention Plans and Best Management Practices: Summary
Guidance, EPA No. 833/R-92-001, NTIS No. PB 93-223550; ERIC No. W139; Storm
Water Management for Industrial Activities, Developing Pollution Prevention
Plans and Best Management Practices, September 1992; EPA 832/R-92-006, NTIS No.
PB 92-235969, ERIC No. N477; Storm Water Management for Industrial Activities,
Developing Pollution Prevention Plans and Best Management Practices: Summary
Guidance, EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No. W492. These and
other EPA guidance documents can be obtained through the National Service
Center for Environmental Publications (NSCEP) at
http://www.epa.gov/nscep . In
addition, States may have BMP guidance documents. These EPA guidance documents
are listed here only for informational purposes; they are not binding and EPA
does not intend that these guidance documents have any mandatory, regulatory
effect by virtue of their listing in this note.
(l) Reissued permits.
(1) Except as provided in paragraph (l)(2) or
(l)(3) of this section when a permit is renewed or reissued, interim effluent
limitations, standards or conditions must be at least as stringent as the final
effluent limitations, standards, or conditions in the previous permit (unless
the circumstances on which the previous permit was based have materially and
substantially changed since the time the permit was issued and would constitute
cause for permit modification or revocation and reissuance under
section122.62).
(2) In the case of
effluent limitations established on the basis of section 402(a)(1)(B)(a)(1)(B)
of the CWA, a permit may not be renewed, reissued, or modified on the basis of
effluent guidelines promulgated under section 304(b)(b) subsequent to the
original issuance of such permit, to contain effluent limitations which are
less stringent than the comparable effluent limitations in the previous permit.
(i) Exceptions--A permit with respect to
which paragraph (l)(2) of this section applies may be renewed, reissued, or
modified to contain a less stringent effluent limitation applicable to a
pollutant, if --
(A) Material and substantial
alterations or additions to the permitted facility occurred after permit
issuance which justify the application of a less stringent effluent
limitation;
(B)
(1) Information is available which was not
available at the time of permit issuance (other than revised regulations,
guidance, or test methods) and which would have justified the application of a
less stringent effluent limitation at the time of permit issuance; or
(2) The Department determines that technical
mistakes or mistaken interpretations of law were made in issuing the permit
under section 402(a)(1)(B)(a)(1)(B);
(C) A less stringent effluent limitation is
necessary because of events over which the permittee has no control and for
which there is no reasonably available remedy;
(D) The permittee has received a permit
modification under section 301(c)(c), 301(k), 301(n), or 316(a); or
(E) The permittee has installed the treatment
facilities required to meet the effluent limitations in the previous permit and
has properly operated and maintained the facilities but has nevertheless been
unable to achieve the previous effluent limitations, in which case the
limitations in the reviewed, reissued, or modified permit may reflect the level
of pollutant control actually achieved (but shall not be less stringent than
required by effluent guidelines in effect at the time of permit renewal,
reissuance, or modification.
(ii) Limitations. In no event may a permit
with respect to which paragraph (l)(2) of this section applies be renewed,
reissued, or modified to contain an effluent limitation which is less stringent
than required by effluent guidelines in effect at the time the permit is
renewed, reissued, or modified. In no event may such a permit to discharge into
waters be renewed, reissued, or modified to contain a less stringent effluent
limitation if the implementation of such limitation would result in a violation
of a water quality standard under section 303 of the CWA applicable to such
waters.
(3) In the event
this section (section 122.44(l)(l)) of the regulations conflicts with the
provisions of the Clean Water Act, the CWA will apply.
(m) Privately owned treatment works. For a
privately owned treatment works, any conditions expressly applicable to any
user, as a limited co-permittee, that may be necessary in the permit issued to
the treatment works to ensure compliance with applicable requirements under
this part. Alternatively, the Department may issue separate permits to the
treatment works and to its users, or may require a separate permit application
from any user. The Department's decision to issue a permit with no conditions
applicable to any user, to impose conditions on one or more users, to issue
separate permits, or to require separate applications, and the basis for that
decision, shall be stated in the fact sheet for the draft permit for the
treatment works.
(n) Grants. Any
conditions imposed in grants made by the Department to POTWs under section s201
and 204 of CWA which are reasonably necessary for the achievement of effluent
limitations under section 301 of CWA.
(o) Sewage sludge. Requirements under section
405 of CWA governing the disposal of sewage sludge from publicly owned
treatment works or any other treatment works treating domestic sewage for any
use for which regulations have been established, in accordance with any
applicable regulations.
(p) Coast
Guard. When a permit is issued to a facility that may operate at certain times
as a means of transportation over water, a condition that the discharge shall
comply with any applicable regulations promulgated by the Secretary of the
Department in which the Coast Guard is operating, that establish specifications
for safe transportation, handling, carriage, and storage of
pollutants.
(q) Navigation. Any
conditions that the Secretary of the Army considers necessary to ensure that
navigation and anchorage will not be substantially impaired, in accordance with
R61-9.124.59.
(s) Qualifying State,
Tribal, or local programs.
(1) For storm
water discharges associated with small construction activity identified in
section122.26(b)(15)(b)(15), the Director may include permit conditions that
incorporate qualifying State, Tribal, or local erosion and sediment control
program requirements by reference. Where a qualifying State, Tribal, or local
program does not include one or more of the elements in this paragraph (s)(1),
then the Director must include those elements as conditions in the permit. A
qualifying State, Tribal, or local erosion and sediment control program is one
that includes:
(i) Requirements for
construction site operators to implement appropriate erosion and sediment
control best management practices;
(ii) Requirements for construction site
operators to control waste such as discarded building materials, concrete truck
washout, chemicals, litter, and sanitary waste at the construction site that
may cause adverse impacts to water quality;
(iii) Requirements for construction site
operators to develop and implement a storm water pollution prevention plan. (A
storm water pollution prevention plan includes site descriptions, descriptions
of appropriate control measures, copies of approved State, Tribal or local
requirements, maintenance procedures, inspection procedures, and identification
of non-storm water discharges); and
(iv) Requirements to submit a site plan for
review that incorporates consideration of potential water quality
impacts.
(2) For storm
water discharges from construction activity identified in
section122.26(b)(14)(x)(b)(14)(x), the Director may include permit conditions
that incorporate qualifying State, Tribal, or local erosion and sediment
control program requirements by reference. A qualifying State, Tribal or local
erosion and sediment control program is one that includes the elements listed
in paragraph (s)(1) of this section and any additional requirements necessary
to achieve the applicable technology-based standards of "best available
technology" and "best conventional technology" based on the best professional
judgment of the permit writer.
